Volume 8 — Pennsylvania State Reports

<p>In error from the District Court of Lancaster county.</p> <p>May 8. Case for nuisance, by Davis Evans, Hiram Evans, Abraham Bruner and Rebecca his wife, late Rebecca Evans, children and legal representatives of James Evans, deceased, the defendants in error, against Daniel Hart, John Hart, Jacob Hart, and Daniel Hart, jun., the plaintiffs in error. The action was brought to recover damages for injuries caused by turning off an ancient stream of water from plaintiffs’ land. James Evans, deceased, the father of the plaintiffs, was the son of James Evans, who died in 1801, and who, by his will made on the 18th of March, 1800, devised to his said son the tract of land, now the property of the plaintiffs, and on which the injury caused by the nuisance complained of, was committed by the defendants. The declaration was thus: —</p> <p>“For that whereas the said plaintiffs, on the 2d day of April, in the year of our Lord one thousand eight hundred and thirty-two, were, and still are, seised in their demesne as of fee, of and in a certain tract of land, situate and being in the townslip of Caernarvon, in the county aforesaid, containing one hundred and eight acres, be the same more or less. And whereas tie said plaintiffs, and all others whose estate the said plaintiffs new have in the tract of land aforesaid, have used and had, and ought to use and have, the benefit of a certain stream of water, or ancient water-course, which extended itself in and througa diva's parts and parcels of the said tract of land: Nevertheless, the aforesaid defendants not being ignorant of the premises, but maliciously contriving and wickedly intending them, the said plaintiffs, of the benefit and advantage of the said stream of water, or aicieut water-course, entirely to deprive, the 2d day of April aforesaid, in the year last aforesaid, and at divers other times as well before as after, at the township of Caernarvon aforesaid, in the countyaforesaid, the stream and course of water aforesaid, did dam up stop, obstruct, and from the ancient course in which it used to rin, did divert or cause to be diverted. By reason of which said damning, stopping, obstructing, and diverting of the said stream or vatercourse, the said plaintiffs have been deprived of the benefit and use of the said water-course or stream of water for a long time, to wit: on divers days and times between the said 2d day of April in the year aforesaid, and the bringing of the writ of the said plaintiffs, by which they now sue, and during all the time aforesaid.”</p> <p>The plaintiffs brought this suit, on the 14th of May, 1833; at which time, Hiram Evans, one of the plaintiffs, was in possession ■ of the land, and worked it on the shares.</p> <p>James Evans, the elder, by his will, which was given in evidence by the plaintiffs, devised to his son James, the father of the plaintiffs, a tract of land containing 108 acres; to his son John, a tract containing 108 acres; to his son, Caleb, a tract of land, on which was a saw-mill, a tract of land in Chester county, and several lots adjoining the tract on which the saw-mill was erected, containing altogether, two hundred and three acres and one hundred and forty perches. The plaintiffs derived their right to the water-course under the following clause of the will of the said testator :—</p> <p>“ I order and direct my son Caleb, when using the water to his mill, is not to let it run in the natural course, but to keep it in the ditch or race, so that it go down as usual to water his brother’s meadow, they keeping the race and ditch clean, and in case Caleb clears any meadow-ground below the race, he shall be allowed the use of the water at times to water it, so that they may all of them have use of the water as equally as they can, after it leaves the mill or mills.”</p> <p>The mill referred to in this clause, was the saw-mill. It appeared from the evidence, that this saw-mill was in operation when the said will was made, but how long afterwards, was not shown. It was not, however, in operation in 1807. It also appeared, that there was a. dam in the stream below the saw-mill, by which the water was turned into the ditch or race running to the land or place of Hiram Evans, from 1807 to 1832; that the dam extended across the stream, and was made of stones, earth, and sods; that part of the water of the said stream was turned by the said dam into the said race or ditch, and the rest ran over the dam and down the natural channel; that some part of the water always ran down the natural channel, except when the season was very dry; that the clam was a trifling one, and might be made by a single man in an hour j that the water, which by means of the said dam was turned into the race or ditch running to the land or place of the plaintiffs, always flowed in and upon said land, from 1807 up to 1832; that by the water thus running through the race or ditch, nine or ten acres of the meadow-land of Hiram Evans, or of the plaintiffs, was regularly watered; that the water was diverted from running into the race or ditch in April, 1832; that in consequence thereof, there was not so much hay in 1832, as in 1831, Toy ten or twelve loads ; that when the meadow was watered by means of the race or ditch it averaged from two to three tons per acre, and that after it was diverted from the race or ditch it did not yield more than a ton per acre; that the race or ditch watered two meadows on Hiram Evans’s, or the plaintiffs’ place, running round both; that it ran through the barn-yards of Robinson and H. Evans; that there was a place in Evans’s barn-yard and also in the field to water the earth or stock; that after the water was turned off in 1832, those places were left and remained dry; that the water v'hen running through the race or ditch was convenient to the house, and being soft water, was used for washing and other purposes; that Caleb.Evans owned no meadow below the dam, nor was there any meadow on his place; that the dam across the stream was taken down by the defendants or some of them, on or about the 1st of April, 1832,-and as often as it was rebuilt from time to time by the plaintiffs, between that date and the bringing of this suit on the 14th of May, 1833, it was prostrated by the 'defendants, and the water thereby diverted from the race or ditch through which it had run to water the meadows of the plaintiffs. One witness testified, that he lived with Hiram Evans in 1832; that the water was turned off in the beginning of April of that year; that Evans directed him to build a dam across the old channel to turn the water into the race or ditch again; that he built it accordingly, and that Daniel Hart senior and Daniel Hart junior tore it down, turned the water into the old channel, and said they would tear it down as often as it was rebuilt. Another witness testified, that in 1832 he helped the defendants to stop the water off; that when stopped off it ran down the old channel, and that before it was stopped off, it ran down the race or ditch towards Robinson’s; but that the Harts’ boys would not allow it so to run. Another witness testified, that the water was stopped entirely off, from 1832 to 1834; that when the dam was rebuilt, it was prostrated in less than an hour afterwards; that when the water was in the race, the stock were watered in the barn-yard and in the field; that when not in the race, the cattle had to be driven and watered at the old channel, about 400 yards off, and the water to wash with, had also to be brought from the same place. James McNally testified, that hie was at work at Hart’s quarry, when Mrs. Evans and another woman came there, and wanting water to wash, she put stones and sods together to dam the water so that it would run into the race, and that Daniel Hart removed the same. Eliza Zell testified, that she saw John and Jacob Hart throw stumps, dirt and things into the race leading to Hiram Evans’s, and that this was in 1832.</p> <p>On the trial, the defendants took several bills of exception to the admission and rejection of evidence.</p> <p>Defendants’ first bill was to the admission of the deposition of John Zell, an aged and infirm witness. This deposition was not on the paper-book, nor attached thereto.</p> <p>The defendants, to maintain the issue on their part, called Watson McNally, and offered to prove by him, that he saw the ditch or race before 1833, and saw the water running in it before this suit was brought, and that he never knew of it being cleaned before the suit was brought; and also offered to ask the witness the following questions:—</p> <p>“State whether it was cleaned afterwards, immediately after the arbitration in 1834, and what was the effect of the cleaning upon the flow of the water; and what depth was cleaned out of the said ditch, and whether it wanted cleaning; and whether, if the ditch had been dug deep enough, it might have afforded water enough to the plaintiff, Hiram Evans, and the other occupier of that farm, without even a dam.”</p> <p>The court rejected the evidence, overruled the offer, and sealed defendant’s second bill of exception.</p> <p>The defendants then offered to prove, by the same witness, that he helped Hiram Evans to erect a dam across this stream, in 1834, and the effect of that erection upon the water flowing in the stream, to exclude it from the natural channel, and that he, from observation previously made, had not noticed any such dam; and whether, in the opinion of the witness, a wing-dam, if erected in the stream, would not have been sufficient to turn a proper quantity of water into the race, for the supply of the farm of the plaintiffs, and at the same time to allow water enough to run in the old channel, to supply all that was wanted below.</p> <p>The court overruled the offer, rejected the evidence, and sealed defendants’ third bill of exception.</p> <p>The witness then testified, that he had known the stream of water since he was sixteen years of age; that he never knew there was a dam across it until ho helped to put one there; that the stream was a clever one. The. defendants then offered to ask him, whether there was sufficient water in the channel after the erection 'of a wing-dam, to run down the natural channel, and also down the race or ditch?</p> <p>Offer overruled by the court, and defendants’ fourth bill of exception sealed.</p> <p>The Avitness then proceeded, and stated, that he was thirty-four years of age; did not knoAV the property of the plaintiffs long before 1832, and that he had not taken much notice of the dams along that creek.</p> <p>The defendants’ fifth-bill of exception, was to the rejection of the following evidence offered by them: “ That Daniel Hart, jun., and Jacob Hart, two of the defendants, were minors in 1832; that they were not on the duplicate assessment list delivered to him as assessor, and from information, they were minors.”</p> <p>The defendants’ sixth bill of exception, AYas to the admission of evidence that Hiram Evans got the water used, in building the barn on the place, in April or May, 1833, before this suit was brought, from Sensenick’s run; that it Avas hauled, and that the mortar-bed was quite close to the old race or ditch in which the water used to run.</p> <p>Each of the parties propounded certain points to the court, which, with the answers of the court thereto, were as.follows:—</p> <p>Plaintiffs’ Points. — That in assessing the damages, they have -a right to take into consideration not only the annual profits actually lost by plaintiffs in consequence of the acts of defendants, and interest thereon, but also the loss in value to the land or freehold, and all the costs and charges of every kind to which the defendants have subjected the plaintiffs in attending to and carrying on the suit.</p> <p>Answer. — The measure of damages is the injury which the plaintiffs actually sustained by reason of the Avrongful acts proved to have been done by the defendants upon the premises. The jury will estimate the value according to the evidence.</p> <p>Defendants’ Points. — 1st. The plaintiffs can only recover by adducing evidence to sustain the allegations contained in their declaration. They must make out the wrong and the injury as they have laid it; and if they fail in that, they cannot recover.</p> <p>2d. The evidence being that Hiram Evans AYas in the exclusive occupation and possession of the land as tenant, and AYas entitled to all the hay from the meadow, to which the injury is alleged to have been done, the plaintiffs can only recover for a permanent injury to the inheritance; and in order to do so, they must declare specially, setting forth their seisin, the possession of their tenant, and the particular injury done to the inheritance; and must prove such injury as laid; in all which the plaintiffs have entirely failed, and cannot recover in this action.</p> <p>' 3d. To authorize the jury to find against the defendants, a joint act ought to he proved; and the plaintiffs cannot recover for several acts done at several times by the different defendants, and such joint'acts ought to be in accordance with the allegations in the declaration.</p> <p>Answers. — 1st. The plaintiffs, to recover, must prove all the material allegations contained in their declaration. Proving these, they are entitled to such damages as the jury may consider as a just compensation for the injury they have sustained. Failing to prove them, the verdict should be for the defendants.</p> <p>2d. The evidence appears to be that Hiram Evans occupied the land on shares, and that the hay was to he fed upon the land. The water-course was a permanent advantage to the inheritance, and the taking of it away was an injury to the inheritance. I think the declaration in this respect is sufficient; and if the jury are satisfied that the injury has been proved as alleged, the plaintiffs are entitled to their verdict.</p> <p>3d. Answered in the affirmative.</p> <p>Defendants excepted to the charge, and the answers of court to points. The jury found a verdict for plaintiffs, for $350 damages. The defendants took this writ of error.</p> <p>Errors assigned. 1. The court erred in admitting the evidence on the part of the plaintiffs set forth in the first and sixth bills of exceptions.</p> <p>2. The court erred in overruling the evidence on the part of the defendant set forth in the second, third, fourth, and fifth bills of exceptions.</p> <p>3. The court erréd in their answer to the point propounded on the part of the plaintiffs.</p> <p>4. The court erred in their answer to the several points propounded on the part of the defendants.</p> <p>5. There is error in the general charge; in charging that it was only in case Caleb Evans should clear any meadow-ground below the race, that he was to be allowed the use of the water — and in all that part of the charge relating to the construction of the will of James Evans on the water-rights of his three sons, and in charging that Caleb was entitled to the use of the water for the mill whilst he used it, and for no other purpose was he entitled to ■ the water after it left the mill, unless he -cleared some meadow-ground below the race.</p> <p>Also in charging that the action may be sustained by proving that the defendants did in fact divert the water from the plaintiffs’ meadows, though it was done by removing the dam, which had stood time out of mind across the old channel, for the purpose of turning the stream into the ditch or water-course, conveying the water to those meadows, and not by damming up and obstructing that water-course.,</p> <p>Evidence embraced by the second, third, and fourth bills, offered to show that dam was unnecessary. Enough water for both. Injury resulted more from default of plaintiffs in not cleaning race than from act of defendants. Fifth bill. — Two- of defendants were minors under dominion of father. Old Hart was in possession and occupancy of tract on which dam stood. Injury complained of not a trespass. Nothing injurious per se, but only in its consequences. If not evidence to justify, it was at least to mitigate damages. Sixth bill. — Offer to prove special damage not set forth in narr.: 2 Chit. Pl. 788 and 789; 1 Chit. Pl. 386-7. As to points: All the plaintiffs were reversioners except Hiram Evans. Ought to declare specially. 3 Maulé and Selwyn, 234, cited 3 Chit. Pl. 434; Comyn’s Dig. Act. Case, fifuisance B, and Precedent; 2 Chit. Pl. 383; Ripka v. Sergeant, 7 Watts & Serg. 9; Ives v. Cress, 5 Barr, 118. Answer to second point of defendants is manifestly wrong. Taking away water may be injury to inheritance, but plaintiffs have not so alleged in declaration: but merely the temporary injury ef deprivation of use of water. Court were wrong in construction put on will. Caleb Evans was entitled to use waste water.</p> <p>cited 2 Saund. 113, note 1; Ang. on Water-Courses, 154, 159; 2 Co. Litt. 334 — 5—6; 2 Ch. Pl. 386; Spigelmoyer v. Walter, 3-Watts & Serg. 540; 2 Bl. Com. 209; Roper on Husband and Wife, -215, 32 Law Lib. 136; Cro. James R. 399; 1 Strange, 229; Cro. Eliz. 96; 1 Ch. Pl. 55; 1 Wend. R. 380.</p>

May 8. From the proceedings returned to this court, on certiorari, directed to the Court of Quarter Sessions of Lancaster county; it appeared, that at January Sessions, 1845, the following petition was presented to the said court:— “The subscribers, inhabitants of the Township of Warwick, in said County, respectfully represent, “ That the erection of a new township, by dividing the township of Warwick into two, would be beneficial to the inhabitants of the said township of…

<p>Appeal from the Orphans’ Coiu't of Lancaster county.</p> <p>May 9. The petition of Catherine Mohler set forth a devise of certain lands by H. Mohler to his son John at a certain valuation, 500i. of which he directed should remain on the real estate of his son during the life of his widow the petitioner, to whom the interest thereof should be annually paid, and after her death the principal among testator’s children. That the testator subsequently sold part of the land to his son, so that on his death but two pieces of land passed under the will charged with the annuity. That John Mohler the devisee had accepted the devise, and conveyed the land to Frey the defendant. That they had paid certain sums on account of the annuity, but that there were large arrearages due while he held the land, and that John Mohler the devisee had died insolvent, and no administration had been granted. The prayer was for general relief.</p> <p>A supplemental petition was filed against the administrators, the heirs of Frey, who had died since the filing of the original petition.</p> <p>The answer set up was that when Frey purchased the land there was no special contract made respecting this annuity. That the petitioner had recovered two judgments de terris in the District Court, in actions against Frey, brought for the arrearages sought to be recovered. Under these, parts of the land had been sold and the proceeds were paid into court; and they denied that the estate of Frey was responsible for the arrearages, but they were exclusively chargeable on the particular tract.</p> <p>The petitioner gave some evidence that when Frey purchased the land, 500i. was deducted from the purchase-money and retained by him; that he had paid the annuity for some years; and it was proved the land would not sell for the amount of the arrearages of the annuity.</p> <p>On the hearing, the court below said they were willing to make a decree for payment of the legacy out of the land (which the petitioner declined), but were of opinion they had no authority to make a personal decree against Frey.</p> <p>That the devisee was personally liable by acceptance is not disputable, and that his assignee taking the profits is also liable is settled: Long v. Long, 1 W. 267; Duppa v. Mayo, 1 Saund. 282; Hirst v. Rodney, 1 W. C. O. R. 37; 1 Hr. 221. His actual possession is immaterial: Weidner v. Foster, 2 Pa. R. 26; 3 W. & S. 531. The remedy was formerly against the land or the profits. But it is now held that the remedy in the Orphans’ Court has avoided the remedy by ejectment, and as the proceedings there are analogous to those in a court of equity, the present' remedy is the proper one.</p> <p>Where a court of law has jurisdiction, and has exercised it, courts of equity do not interfere, nor will they aid the party who has selected his jurisdiction: 1 Stor. Eq. 559. Here there has been a prior judgment at law for the same cause. After this the petitioner cannot commence a new proceeding for the purpose of adding a personal liability after obtaining a judgment which binds the realty for the same cause: Cooke v. Grraul, 1 Paig. 407; Hammond v. Washington, 17 Pet. 10.'</p>

<p>A lunatic, whose real estate had been sold by order of court, for his maintenance and payment of his debts, died intestate, unmarried, and without issue, father or mother, brother or sister of the whole blood, uncle or aunt, but leaving to survive him, three brothers and a sister of the half-blood, children of his mother by a second marriage, and ten cousins, children of deceased paternal uncles. The half-brothers ,and sisters were of the blood of the intestate, through his mother, who was a descendant of the paternal great-grandfather of the intestate and his cousins, the common ancestor from whom the intestate remotely derived a part of the estate by descent, devise, or gift, and was also related by blood to the intestate’s grandfather, from whom another portion of the estate was remotely derived by devise and descent; the. persons last seised thereof, immediately before the intestate, having been his father and a paternal uncle who died intestate. At the time of the death of the intestate, an unexpended balance of the fund made by the sale of his real estate, remained in the hands of his committee: Held, first, that this balance was to be regarded as land for the purposes of distribution; and, second, that the half-brothers and sister were entitled to it in equal portions, in preference to the cousins.</p> <p>The facts set out in a case stated for the opinion of a court, are not evidence in a subsequent proceeding, nor for any other purpose than that for which they were submitted.</p>

From the Orphans’ Court of Lancaster county. May 11. The petition of Sheaffer, guardian of Ann Myer, set forth that Ileistand bequeathed to his wife “$1500, which shall remain in this property, situate, &c., of’ which she shall receive the interest, which is $90, to be paid quarterly if she may want it, and if not, yearly, as she may request it, only so long as she lives and remains my widow.” To his daughter Elizabeth he devised the land before described in fee “ for the…

May 11. This was an action of trespass on the case, in which Thomas Grosh, the defendant in error, was plaintiff, and John Bradley, the plaintiff in' error, was defendant. The declaration contained the common money counts, and one for work, labour, and services.

<p>In error from the Court of Common Pleas of Lancaster county.</p> <p>May 11. This was an action on the case, by Christian B. Mylin against Joseph Gooch The declaration contained two counts. In the first, the cause of action was thus stated:—</p> <p>“ Joseph Good, late of said county, was summoned to answer Christian B. Mylin, of a plea of trespass on the case, &c. Whereupon the said Christian complains, for that whereas he the said Christian, on the 1st day of August, in the year of our Lord 1846, and from thence hitherto, was and still is, seised in his demesne as of fee, of and in a certain close of about forty acres of land, together with about twenty acres of meadowland, and a certain grist-mill, saw-mill, dam, water-course, tail-race, and other appurtenances thereunto belonging, situate in Conestoga and Martic townships, in 'said county of Lancaster, which said land, meadow, mills, dam, water-course, tail-race, and appurtenances, were, during all the time aforesaid, in the possession of a certain Benjamin Hess, as tenant of the plaintiff; and whereas, the plaintiff and all whose estate he has in the said close, meadow, mills, water-course, and tail-race, and all others, his and their tenants and occupiers of the said premises, hare always had and enjoyed, until the obstructions hereinafter mentioned, the free course and use of a certain ancient stream of water, called the Pequea creek, running and flowing to and along the same, to the said water-course, and thence along and over the said water-course to the said mills, and thence along and over the said tail-race, land, and meadow, to the said stream at its natural channel, and thence down the same in its ancient course; so that at the said mills and water-course, before the obstructions hereinafter mentioned, there was a great fall of water, creating a water-power of great value, to be applied to the driving of water-wheels and propelling of mill-works and machinery; and the plaintiff and all others, his tenants and occupiers of the said premises, held, used, and applied the same to their great profit and advantage, and still ought to have and hold the same free and undisturbed, of all which the defendant had notice. Yet, the defendant, contriving and unjustly intending to injure the plaintiff, afterwards, to wit: on the day and year aforesaid, at the county aforesaid, wrongfully and injuriously raised, erected, and built, and caused to be raised, erected, and built a dam, composed and made-of stone, logs, clay and gravel, of the height of five feet and a half, and of the length of sixty feet, in, over, and across the said stream of water, below the said land and mills of the plaintiff, to the great obstruction and impediment of the running and flowing of the said stream of water; and continued the same so raised, erected, and built, from that time to the day of issuing the original writ in this cause: by reason whereof, the waters of the said Pequea creek during all the time aforesaid were dammed, swelled up, and flooded back upon the said mills and tail-race of the plaintiff, and over his said land and meadow, and caused a back-water, hindering the free course of the said stream from the said mills, water-course, and tail-race, so that the fall of water at the said mills was reduced and the power thereof greatly diminished; and the water-wheels at the said mills during all the time aforesaid were clogged with so much water that they could not be turned round by the course of the water of the said stream, as they used to be: and the said mills could not be worked and run so constantly as theretofore, and could not do so much work as they were used to do, and the profits thereof were greatly lessened : so that the said tenant of the plaintiff was unable to pay the rents reserved to him, and the land of the plaintiff was overflowed and drowned by the said water, to the great damage and prejudice of reversionary interest and estate of the plaintiff.”</p> <p>In the second, the cause of action was stated to be an injury from backing the water, and flooding, as set forth in the first count, by raising the dam already erected, or erecting an additional dam, “higher than the same was used or ought to be, in, over, and across the same stream of water.”</p> <p>To the cause of action as thus set out in the declaration, the defendant pleaded not guilty; and on these pleadings, issue was joined and the cause tried. On the trial, before Lewis, P. J., a mass of testimony was given, which it is not necessary to notice in this report.</p> <p>Of the bills of exception to evidence, the following only is material:—</p> <p>The plaintiff, in addition to the evidence given, offered to prove that for upwards of twenty years, previously to August, 1846, there were two outlets or sluices from the pool of the dam through the left bank into Eshleman’s meadow, and thence into the natural channel of the stream below the dam, and over or through which the water constantly flowed; that the said outlets or sluices were never higher than the breast of the dam, and that the defendant raised them so that no water flowed through the same. To the admission of this testimony the defendant objected, because it was not the injury set forth in the declaration. But the court considered the outlets- or sluices as part of the stream, and the erection therein as part of the dam described in the declaration, and admitted the evidence, and sealed a bill of exception.</p> <p>The court instructed the jury that the slightest flooding of the land or mill of the plaintiff by the defendant without authority, entitled the plaintiff to. nominal damages. That the jury might in addition give damages sufficient to compensate the plaintiff for the injury actually sustained, and for the trouble and expense of establishing his right: — Bearing in mind that the plaintiff, in claiming damages for the injury to the property, is confined to the injury done to his reversionary interest in the premises, and is not entitled to recover damages for the injury done to the term. Eor the latter injury the tenant alone (Abraham Hess) is entitled to compensation. It is certainly true, however, that any permanent injury to the freehold which puts a stop to the operations of the mill, and thus drives its customers from it, and impairs the market value of the reversion, is one for which compensation may be awarded in the present action.</p> <p>To so much of the charge as related to the recovery of damages “for the trouble and expense of establishing the plaintiff’s right,” the defendant excepted.</p> <p>The jury found a verdict for the plaintiff, and assessed the damages at $100, with six cents costs.</p> <p>The defendant thereupon sued out this writ of error, and assigned the admission of the evidence embraced in his bill of exception, and' his exception to the charge of the court, for error here.</p> <p>cited Ang. on Water-Courses, 156; 10 Wend. 177; Jacoby v. Laussatt, 6 S. & R. 300; 1 Cow. 240; 14 Johns. R. 128; 7 Cow. 294; Hager v. McManus, 4 Watts, 118; 21 Wend. 144; Rogers v. Fales, 5 Barr, 154, 159.</p> <p>As to variance of proof from allegation in declaration: Outlets part of stream — island formed by them. Need not aver outlets in declaration: Durgin v. Leighton, 10 Mass. Rep. 56.</p> <p>As to expenses: Wilt v. Tickers, 8 Watts, 227.</p> <p>General principle in actions of tort: Nowell v. Roake, 7 Barn. & Cress. 404; Taylor v. Morgan, 3 Watts, 333; Romig v. Romig, 2 Rawle, 241; Hager v. McManus, 4 Watts, 118.</p>

<p>The creditors of a lunatic, who obtain judgments after inquisition found, do not acquire thereby any right of priority over other creditors.</p> <p>The debts of a lunatic are to be paid according to their character or nature, at the time of the inquisition finding lunacy. Judgments and mortgages obtained during sanity, or before lunacy found, are liens, and entitled to a preference, but all other debts attach equally, and have equal claims for payment.</p> <p>The directions of the act of the 13th of June, 1836, entitled, “ An act relating to lunatics and habitual drunkards,” must be strictly pursued by creditors in the collection of their debts from a lunatic.</p> <p>Under the 20th and 21st sections of the act of the 13th of June, 1836, the trust declared is for the payment of the first debts of the lunatic, which mean the debts due at the time of inquisition found, and as they then existed: because, the interests of the creditors then attach to the funds or property of the lunatic, in the hands of his committee.</p>

<p>The acts and declarations of parties in the presence of each other, or the acts and declarations of the party to be affected thereby, in relation to the subject-matter, and which constitute parts of the res gesta, and enter into the character of the whole transaction, are evidence, as conducing or tending to prove the allegations made by the party in whose favour they operate; and their weight, either separately or collectively, is for the jury.</p> <p>Evidence of the acts and declarations of parties in the presence of each other, or of the acts and declarations of the party to be affected thereby, and which constitute parts of the res gesta, and enter into the character of the whole transaction, is not to be taken in detached parts, and each one rejected, because it does not make out the case; but it is all to be taken together, and each part admitted as a link in the chain of connected facts and circumstances by which fraud is most frequently effectually established.</p> <p>Where it appeared from certain proceedings in the Orphans’ Court, that the settlement of the second account of an administrator exhibited a balance of §157.84, in favour of the accountant; that the day after the said account was confirmed and allowed by the court, a petition was presented by the administrator for an order to sell the real estate of the decedent, consisting of a tract of land containing 156 acres, for the payment of debts, which order was granted by the court; that the only debt against the said estate, was the said balance of §157.84, in favour of the administrator as exhibited on the fade of his second account; that the administrator returned a sale of one-third of the tract to the husband of a daughter of the decedent, and of the other two-thirds to the guardian of two minor children of the said decedent, and that the said sale was confirmed by the cour.t: Held, that the record itself afforded the strongest evidence that the proceedings were a partition among the heirs, and not a sale; and this, independently of parol evidence, which showed that the widow and heirs, with the aid of a surveyor, made an amicable partition of the land by metes and bounds, agreed upon the part which should go to the married daughter, and which to the other two heirs, and agreed also upon the sum at which the said parts should be returned as sold by the administrator, which was strong evidence that the proceedings in the Orphans’ Court were designed by the widow and heirs as a convenient mode of settling the estate, and were a partition among the heirs, and not a sale for the payment of debts.</p> <p>Where the administrator in such case, returned that he had sold one-third of his intestate’s real estate to the husband of a married daughter of the intestate, and tire other two-thirds to the guardian of the other two minor children of the intestate, which sales were confirmed by the court; and the said husband and wife, in consideration of a deed delivered to them, for their said part of the said real estate, executed and delivered to the administrator a release in full satisfaction of their share of the said estate, and of all claims or demands against the same, and no money had been paid by the husband to the administrator, it was held, that that part of the real estate returned as sold to the husband belonged to his wife, the daughter, and one of the heirs of the intestate, and that any attempt by the husband to set up title to it in himself, was a fraud upon the wife.</p> <p>The administrator, in such cases, is a competent witness to prove facts connected with the alleged sale, and upon the question of the payment of money by the husband.</p> <p>The acts and declarations of the husband after judgment obtained and entered against him, -which were not communicated to the plaintiff in the judgment, nor to the purclfttser at sheriff’s sale, will not affect the rights of .either: unless it be made to appear that there was a concerted plan between the husband and the plaintiff on the judgment, in which the purchaser was a participant, to defeat the wife, and deprive her of her estate or interest in the land.</p>

In error from the Common Pleas of Lancaster county: Judge Hats presiding specially. May 15. This was an issue directed by the court, in which Isaac Davis and George W. Hamersly were plaintiffs, and John Charles, sen., and John Charles, jun., defendants, to try whether two judgments and executions of the said defendants and others against one Isaac Heiney, were fraudulent, and given to delay, hinder, and defraud the said plaintiffs of their debt against the said Isaac Heiney.

<p>If the act of incorporation of a borough confers no authority on the corporation to lay out and open, but only to regulate, repair, and maintain the streets, lanes, and alleys therein; the Court of Quarter Sessions of the county possesses the power, under the then existing road-laws of the commonwealth, to lay out and open streets, &c., within the same, and to cause the damages therefor to be assessed.</p> <p>Where, in such case, an alley was laid out and opened in a borough, by the road and street commissioners thereof, under a special act of Assembly of the 30th of March, 1846, which authorized and required them to perform the said duty, but which provided no mode of compensating the owners of the lands through which the said alley passed, for the damages thereby sustained: Sold, that the special act was not unconstitutional, as it only interfered with the general road-law of the 13th of June,. 1836, to the extent of the agency used in laying out and opening the alley, but that it did not withdraw the case from the operation of the general road-law providing for the assessment of the damages sustained by the owners of lands for and by reason of laying out and opening the said alley, nor deprive the Court of Quarter Sessions of the county of its power to give eifect to those provisions; and that the special act of 1846 was therefore to be construed and treated as part of the general road-law of 1836.</p> <p>Under the resolution of the 29th of May, 1840, the seventh, eighth, and ninth sections of the act of the 13th of June, 1838, which provide for the assessment of road damages, are extended to claims for damages, in consequence of injury sustained from the location and opening of a road under the provisions of any special act of Assembly: unless where the same is otherwise provided for by law.</p> <p>Street or alley, in an incorporated town, is synonymous with road, within the meaning of the resolution of 1840.</p> <p>A petition for the assessment of damages sustained by reason of laying out and opening an alley, in the name of the owner of the land through which it passed, and signed for him by his agent as such, is a sufficient compliance with the act of Assembly.</p>

<p>In error from the Court of Common Pleas of York county.</p> <p>May 16. This was a special scire facias on the official recognisance of Andrew Duncan, as sheriff of York county, brought by the Commonwealth of Pennsylvania, for the use of Isaac Darst, Henry Darst, and Jacob Darst, then for the use of Isaac Darst, against the said Andrew Duncan, with notice to terre tenants.</p> <p>The paper-book contained only the writ of scire facias and the special plea, in which the facts of the ease, so far as developed, are stated. The recitals and purport of the writ of scire facias, are sufficiently stated in the opinion of this court. The special plea to the scire facias was put in by one William Patterson, the only terre tenant who appeared and took defence, and was as follows:—</p> <p>“William Patterson, terre tenant by leave of court, pleads and says, that the plaintiff ought not to have and maintain his aforesaid action against his, the said William Patterson’s house and half lot of ground, in the borough of York, in said York county, upon which said-recognisance in the plaintiff’s scire facias mentioned is a lien, because he says that whilst said suit against said Andrew Duncan in plaintiff’s scire facias mentioned was pending in said Circuit Court, and said claim of said Isaac Darst was contested in said suit by said Andrew Duncan, to wit, on the 17th day of July, A. D., 1833, at York county aforesaid, said Isaac Darst authorized one John L. Fuller, who was then and there the attorney and agent of said Isaac Darst, to compromise and settle his said claim and suit with said Andrew Duncan; and that afterwards, while said suit was pending in said Circuit Court, and said claim of said Isaac Darst was contested by said Duncan, to wit, on the 15th day of April, A. D., 1834, said John L. Fuller, in pursuance of said authority from said Isaac Darst, and as his attorney and ■agent, did compromise and settle said suit and claim with said Andrew Duncan, for the sum of $1,050, and said Andrew Duncan then and there paid said John L. Fuller for said Isaac Darst, and said John L. Fuller then and there received for said Isaac Darst, said sum of $1,050, in full satisfaction of said suit and claim of said Isaac Darst against said Andrew Duncan, he, the said John L. Fuller, being the attorney and agent of said Isaac Darst, and having full power and authority so to do; and that after said compromise and payment, and before the recovery of said judgment against said Andrew Duncan, in said suit in said Circuit Court, to wit, on the 15th day of January, A. D., 1839, the said Andrew Duncan, by his deed of that date in consideration of $3,500, to him paid by the said William Patterson, conveyed to the said William Patterson the said house and half lot of ground, in this plea first above named. All which the said William Patterson is ready to verify; wherefore he prays judgment if the said plaintiff ought to have and maintain his aforesaid action against the said house and half lot of ground.”</p> <p>On a demurrer by the plaintiffs to this special plea, in which William Patterson, the terre tenant, joined, all the other pleadings being withdrawn, the court gave judgment against the plaintiffs. This writ of error was, thereupon, sued out by the plaintiffs, and the judgment of the court assigned for error here.</p> <p>cited Act of 28th of March, 1803, Pur. Dig. 6th ed. 972; 5 Bin. 188; 13 Edw. 1, ch. 45, 1 Rich. ch. 12, Robert’s Dig. 239; Act of 5th December, 1789, Pur. Dig. 524; Miller v. Commonwealth, 5 W. & S. 489; Hauer’s Appeal, 5W.&S. 473, 474.</p> <p>It is admitted in the pleadings, that the plaintiff’s claim was paid and satisfied before the terre tenant purchased the real estate upon which the recognisance is a lien; and the question is, whether he shall be permitted to recover it a second time from an innocent purchaser, or whether it is competent for the purchaser to prove that it was paid ?</p> <p>The original suit against the sheriff was not on the recognisance, but was an action of debt on the statute of Richard, in which he neglected to take defence on the plea of payment. Of this suit, the terre tenant had no notice, and the judgment in it was recovered after the real estate was conveyed to him.</p> <p>A judgment in a proceeding on the recognisance, of which the terre tenant had no notice, would not bind him; much less will a judgment obtained in an action of debt against the sheriff -alone, of which the terre tenant had no notice. It falls within the rule of res inter alias acta.</p> <p>The case of Miller v. The Commonwealth, 5 W. & S. 494, decides only that the recognisance is notice; not that the terre tenant cannot prove that the particular claim set up under it is paid.</p> <p>A recognisance is not a higher security, nor a greater notice, than a mortgage. Yet, after judgment against the mortgagee, in a suit of which the terre tenant had no notice, the latter can, in an ejectment against him, prove that the debt was paid: Nace v. Hollenbach, IS. & R. 548; Mather v. Clark, 1 Watts, 441; Cowan v. Gretty, 5 Watts, 531.</p> <p>So where a judgment has been recovered against an executor or administrator, the heirs can afterwards show, in a scire facias against them to recover it out of the real estate, that the claim is unfounded: Murphy’s Appeal, 8 W. & S. 165.</p> <p>The case of Masser v. Strickland, 17 S. & R. 354, was a decision by a majority of a divided court, and based on the peculiar provisions of the law in relation to the sureties of constables. This decision was adhered to in the case of Evans v. The Commonwealth, 8 Watts, 398, as an established exception, and admitted to be against the rule -of analogy.</p> <p>Rut the case of Carmack v. The Commonwealth, 5Rinn. 184,-is decisive. In that case it was decided, that a judgment against the sheriff does not bind his sureties, and the contrary doctrine was pronounced “too unreasonable to be sanctioned.”</p>

<p>Under the act of the 16th of April, 1840, a valid and subsisting judgment may be transferred, after the death of the plaintiff therein, from the court of the county in-which it was originally obtained and entered, to the court of another county; and the suggestion of the death of the party, and the substitution of administrators, maybe made before the transfer, in the court of the county in which it was originally obtained and entered, or after the transfer, in the court of the county to which it may have been transferred, for the purpose of proceeding to execution.</p> <p>Such transfer, where there is no administrator, may be made by a creditor to secure the assets; and so, it seems, may it be made by an heir, under similar circumstances.</p>

May 16. This was an action of debt brought on an administration bond, to recover a legacy, in which the Commonwealth, for the use of John Walck, a legatee under the will of Dietrick Walck, deceased, and defendant in error, was plaintiff, and Philip A. Small, a surety in the administration bond, and plaintiff in error, Was defendant.

<p>In an action of debt on a bond, upon tlie allegation and some proof by the defendant, that a less sum than its amount had been paid to and accepted by the obligee, in the absence of the bond, which had been mislaid, and was supposed to be lost, in full satisfaction of it: a positive instruction by the court to the jury, that whatever amount remained unpaid of the bond was recoverable by the plaintiff, is erroneous. It should have submitted to the jury, as a question of fact, whether a part was accepted in full satisfaction of the whole.</p>

<p>Under tlie act of the 13th of June, 1836, the application for the assessment of damages incurred, in consequence of laying out and opening a street or road through several lots, must be made within one year from the time the street or road through the lot of each owner or applicant, was fully opened for public use, and made passable in all its width, for carts, carriages, &c., and not from the time such street or road was effectually opened through all the lots embraced within the points designated in the order of the Court of Quarter Sessions.</p>

<p>The lessees of a mine covenanted to pay forty cents a load for the ore taken, but were at liberty to substitute an annual sum at their election, to be made at the end of the first year, but in case they did not so elect, they covenanted to take out annually, and pay for eight hundred loads. No substitution was in fact made: Hold, that their covenant to take, and pay for the said number of loads, and at the price agreed upon, became positive, absolute, and indefeasible.</p> <p>Where the lessees of a mine sold to another, who entered on the mine, and agreed with the lessor to modify some of the terms of the lease, as where the lessor was bound to pay an annuity of one hundred dollars to the person from whom he bought the mine, the payment of which had been assumed by the lessees, but which, by the agreement between the lessor and assignee of the lease, had been assumed by the latter, who was to be at liberty to take four hundred loads, at the rate of twenty-four cents each, to meet this charge, and at the same rate for whatever else should be taken by him, but in every other point and particular, the covenants and stipulations in the lease were to remain intact: This change in the contract, with which the lessees had no concern, and which did not prejudice them, could not release them from their covenant to take out annually eight hundred loads of ore, and to pay forty cents a load for it.</p> <p>The relation of landlord and tenant, as to a covenant for payment of rent, can be dissolved only by an agreement between themselves, which equity would enforce.</p> <p>Nothing but a surrender, a release, or an eviction, can, in whole or in part, absolve the tenant from the obligation of his covenant with his landlord: per Gibson, C. J.</p> <p>The assignee of the lessees of a mine, who had paid for as many loads of ore as he was bound to pay for by the contract of assignment, and who does not appear to be responsible to any one; not to the landlord, because he had performed his agreement with him, and not to the lessees, because he was bound to perform no covenant but his own: is disinterested, and a competent witness.</p>

<p>Where the writ of scire facias, on a final judgment in partition to enforce owelty of partition, recited the record of a judgment in an action of debt, and the record adduced in support of it exhibited a judgment in an action of partition: it was held, that mil tiel record was a good plea.</p> <p>The writ of scire facias, in such cases, should recite the impleading, the interlocutory judgment, the award of an inquest, the inquisition, and the final judgment ; and it should contain an averment, that the defendant had not paid, followed by the usual conclusion.</p>

<p>A sale under a 'testamentary power, for payment of debts, discharges the land from the dower of testator’s widow.</p>

<p>In error from tbe Common Pleas of Huntingdon county.</p> <p>May 19. This case came into the court below, by appeal, at tbe instance of tbe Commonwealth of Pennsylvania, from tbe report of tbe auditors of Huntingdon county, in and by which, under tbe act of 16th of April, 1845, tbe accounts of James Steel, as Prothonotary of tbe Court of Common Pleas, and Clerk of tbe Courts of Oyer and Terminer, &c., and Quarter Sessions of tbe Peace of Huntingdon county, with the Commonwealth of Pennsylvania, were audited, examined, and settled. Tbe court thereupon directed an issue, to try whether James Steel, prothonotary, &c., as aforesaid, bad paid over all tbe moneys due by him to the commonwealth, on fees received by him during bis tenure of, and continuance in tbe offices aforesaid; and if not, to ascertain and find what sum or sums of money, out of the fees received by him as aforesaid, up to the time his said accounts were audited and settled, were due and owing by him to tbe commonwealth. Tbe facts of the case, and tbe questions raised at tbe trial of tbe issue in the court below, are clearly stated in tbe charge of bis honour Jjidge Wilson to the jury, tbe material parts of which are tbe following:—</p> <p>“ Tbe defendant was elected to tbe offices of prothonotary of tbe Court of Common Pleas, clerk of the- Courts of Oyer and Terminer and General Jail Delivery and Quarter Sessions of tbe Peace, in the fall of 1839, for the term of three years, and took upon himself the duties of these offices on tbe 1st of December, 1839.</p> <p>“ He was re-elected to the same offices in the fall of 1842, and for bis second term of three years, entered upon tbe duties of bis offices on the 1st of December, 1842.</p> <p>“ He was again re-elected in the fall of 1845, and commenced , bis third term 1st of December, 1845.</p> <p>“ The amount of fees actually received by tbe defendant in the three offices held by him, are agreed upon by tbe parties; and show that, to the dates at which his accounts were to be annually settled, he received tbe following sums, to wit</p> <p>To tbe 1st of October, 1840, “ “ “ 1841, “ “ “ 1842, . “ “ “ 1843, “ “ “ 1844, . “ “ “ 1845, $486.05f 1,051.61 1,084.16 1,480.511-2,561.33 2,141.48</p> <p>“The 1st of October, 1846, when the next annual settlement would have taken place, bad not arrived when this proceeding was commenced, but is embraced in the case in hand.</p> <p>“ It will be observed that the four first years Mr. Steel held these offices, the fees actually received by him did not produce the excess upon which 50 per cent, was payable to the commonwealth.</p> <p>“ The commonwealth contends that the first four years (as the actual receipt of fees in the offices held by Mr. Steel did not reach the sum of $1,500) are not to be taken into the account to show his liability to the plaintiff; that the settlement must b.e based on the amounts actually received each year; and that where there is an excess received in any one year over $1,500, that such excess cannot be applied to make up a deficiency of the preceding years. Secondly, that if such excess can be'applied to a preceding year in which there is a deficiency, it cannot be carried back to supply a deficiency of a year in any preceding term of the three years for which the officer is elected and commissioned, but that the receipts of each term of his offices must be settled and accounted for irrespective of a preceding or subsequent term.</p> <p>“ On the first of ¿these positions, the auditor-general and state treasurer settled the account of the defendant, from the returns made by him to the auditor-general’s office, by throwing out of view the first four years, when the fees received by the defendant did not reach, in any one of said years, $1,500, and taking the years 1844 and 1845, in each of which he received more than $1,500, and charge him with 50 per cent, of the excess of these two years. On this basis the balance was struck and entered by the auditor-general, on the 22d February, 1846.</p> <p>“ Under the act of 16th April, 1845, Pamph. Laws, 534, the mode of adjusting the accounts of the prothonotaries is changed: and it is made the duty of the county auditors to audit and settle the accounts of the prothonotaries for all taxes and other dues to the commonwealth received by them, &c.; and makes it the duty of the auditors of the several counties, at their next annual meeting (after the passage of this act) to audit the accounts of the several county treasurers, to audit, examine, and settle the accounts of the several prothonotaries, registers, and recorders of the respective counties for the years 1841, 1842, 1843, and 1844, and certify to the auditor-general, any and all balances they shall find to be due to the commonwealth from the said officers, for the said years; and the auditor-general is required to give information thereof to the state treasurer, who is to proceed to collect such balances, &c.</p> <p>“Under the provisions of this law, the auditors of the county, at their first meeting after its passage, when they met to audit the accounts of the treasurer of the county, to wit: on the 27th of January, 1846 (which was before the action of the auditor-general, striking and entering the balance in his department), audited and settled the accounts of the defendant, including the whole time of his holding the offices up to the 1st October, 1845. The auditors of the county proceeded on the principle of allowing the defendant the deficiency necessary to make up the sum of $1,500, for the years ending 30th September, 1840, 1841, 1842, and 1843, out of the excess of the years ending 30th September, 1844 and 1845, and ascertained the whole excess of the fees received by the defendant, after allowing him $1,500 a year for six years, to be $407.22 ; 50 per cent, of which, payable to the commonwealth, was $208.61: to meet which sum the defendant produced the receipt of the state treasurer, dated January 13, 1846, for $221.00, by which the commonwealth was overpaid $12.39.</p> <p>“ The principle adopted by the auditor-general and state treasurer, by adding the fees received from 1st Oct., 1843, to 1st Oct., 1844, $2561.33</p> <p>to the fees of the succeeding year, ending 30th Sept.,</p> <p>1845,......... 2747.48</p> <p>Makes the aggregate of......$5308.81</p> <p>And deducting, for each of said years, $1500, - - 3000.00</p> <p>Left this balance, ------- $2308.81</p> <p>On which to charge the defendant with 50 per cent., which would show in the receipt of moneys due commonwealth, ------- - $1154.40-|-</p> <p>From which deduct the payment by defendant, 221.00</p> <p>$933.40J</p> <p>The principle adopted by the auditors of the county, which is the correct one, is founded on the act of the 24th March, 1818.</p> <p>“ The defendant has continued without intermission in the three offices, from the 1st December, 1839: he having been twice reelected and recommissioned.</p> <p>“ The counsel for the commonwealth contend that the allowance for a deficiency of any year, while the officer holds the office, is only to be made up to him out of the fees received after he is out of office, when his official duties have ceased by resignation or removal.</p> <p>“ The law, as I view it, clearly intended to make the compensation of the officer for his services, $1,500 for each consecutive year he is in office, if the office or offices he holds will yield that sum; and any excess of fees made by him while in office, after he has received $1,500 for each year he holds the office, he shall be taxed at the rate of 50 per cent., to be paid to the commonwealth, when received by the officer — but that he is not obliged to pay any of the 50 per cent, to the commonwealth, until each year he has been in office has produced Mm $1,500. And the payment by the defendant, exceeding 50 per cent, on the surplus, received by him, after his allowance of $1,500 per year, for the time he held the offices, up to the time the accounts were audited by the county auditors, he will be entitled to your verdict.”</p> <p>The plaintiff requested the court to instruct the jury:—</p> <p>That if the fees received by James Steel, prothonotary, &c., in any one year during Ms continuance in office, amounted to more than $1,500, he is bound to pay the commonwealth one-half of the excess.</p> <p>That James Steel having been elected to the offices of prothonotary, &c., in October, 1889, and entered upon the duties of said offices 1st December, 1839, for the term of three years, and having been re-elected and commissioned for the term of three years from 1st December, 1842, he is not entitled to appropriate any part of the surplus proceeds of his second term to supply deficiencies under $1,500 in any year in his first term.</p> <p>That having continued in office, as aforesaid, from 1st December, 1839, till 1st December, 1845, and being still in office, he is not entitled to the benefit of the act of 24th March, 1818, until he shall have gone out of office.</p> <p>To this request, the court answered as follows:—</p> <p>“We refuse to answer as above requested, and for explanation of our views on each, refer to our general charge.”</p> <p>The jury found for defendant; whereupon the plaintiff sued out this writ of error.</p> <p>Errors: The court erred in refusing to instruct the jury as requested by the plaintiff; and in the instructions to the jury in then’ general charge.</p>

<p>In error from the Court of Common Pleas of Blair county.</p> <p>May 22. This was a feigned issue, formed under the direction of the court below, under the act of the 5th of May, 1832, entitled “An act regulating lateral railroads,” for the purpose of trying whether a lateral railroad, proposed to be constructed by George Mulhollan and William Lyon, the plaintiffs below, and defendants in error, was necessary and useful for public or private purposes; and whether the damages sustained by Dr. Peter Shoenberger, the defendant, exceeded $100.</p> <p>It appeared that George Mulhollan and William Lyon, the plaintiffs in the issue, on the 26th of December, 1846, presented to the Court of Common Pleas of Blair county a petition, of which the following are the material parts:—</p> <p>“ The subscribers respectfully represent that they are the owners of a tract of land in Blair county, having coal-mines thereon, distant not more than one mile from the Alleghany Portage railroad, made by the state of Pennsylvania. That, intervening between the land aforesaid .of your petitioners and the said railroad, is a body of land, in said Blair county, claimed or owned by Dr. Peter Shoenberger; that your petitioners, desiring to make a railroad from their said land over the aforesaid land of said Dr. Peter Shoenberger to the said Alleghany Portage railroad, have marked and surveyed a route over said intervening land as 'follows [Boundaries, and courses and distances omitted here]: being altogether, from the intersection of said Portage railroad to the land aforesaid of your petitioners, one hundred and forty-six perches and fifteen links; and prayed the court to allow them to construct and finish a railroad in and upon the route as surveyed and marked, and to appoint six disinterested and judicious men to view and examine the proposed route, and to make report according to law.”</p> <p>Notice in writing of the intention of the petitioners to present the above petition, was duly given to Dr. Peter Shoenberger.</p> <p>The court thereupon appointed viewers to examine the route selected and surveyed, who reported “ that they did find and deem the same necessary and useful for private purposes,” and that the damages which Dr. Peter Shoenberger would sustain by the opening, constructing, and completing the road, was $100. From this report, Dr. Peter Shoenberger appealed to the Court of Common Pleas. The court thereupon directed an issue; the material parts of which, considered necessary to be given in this report, were as follows:—</p> <p>“ It is hereby ordered that the said George Mulhollan and William Lyon enter an action upon the case in the said court as of September Term, A. D. 1841, now next ensuing, in the name of them the said George Mulhollan and William Lyon against the said Dr. Peter Shoenberger, and that the said Dr. Peter Shoenberger cause an appearance to be entered for him to the same, and that the said George Mulhollan and William Lyon shall declare, as of the said term, upon a discourse had and moved by and between the said parties of and concerning the said report of the viewers aforesaid, and that the said Dr. Peter Shoenberger, in consideration of a mutual promise on the part of said George Mulhollan and William Lyon to him made, did promise to pay to the said George and William the sum of-dollars, in case they, the said George and William, should make it appear to the court and jury: 1st. That the road mentioned and set forth in the said report is necessary and useful for public or private pur-, poses; and, 2d. That the damages which will be sustained by the said Dr. Peter Shoenberger by the opening, constructing, completing, and using the said railroad by the said petitioners, will not exceed the sum of $100, the amount reported by the said viewers; and that the said Dr. Peter Shoenberger shall plead issuably to the said declaration, so that an issue may be formed and tried by a jury agreeably to the acts of Assembly.</p> <p>“And it is further ordered, that the circumstances of the said mutual promises, and of the affirmations and assertions laid in the declaration, shall be confessed, so that the trial may be on the merits, and that the costs shall follow the verdict; but the said verdict shall give no title to either party to recover of the other the sum laid in the declaration as the wager.”</p> <p>The declaration filed by the plaintiffs averred that the railroad, in the report of viewers mentioned and described, was necessary' and useful for private purposes; and that the damages sustained by the defendant, by the construction and use of the same, would not exceed the sum of $100. To this declaration, the defendant demurred specially. But the court refused to allow the demurrer to be filed, because it was a violation of the form of the issue, as directed by the court. The defendant then filed three special pleas.</p> <p>The first plea denied the averments in the declaration as to the necessity and usefulness of the proposed railroad for private purposes, and as to the amount of damages which would be sustained by the defendant by constructing and using the same. The second alleged that the plaintiffs, at the time of the institution of the proceedings upon which this issue was formed and directed, did not own the tract of land containing the coal-mines, nor had they any title to the said tract at that time or since. The third averred that the railroad had been improperly located by the viewers, and that it might have been located on ground, so as to have been of private use to the plaintiffs and less injurious to the rights of the defendant. The second and third• pleas were stricken off by order of the court, and the parties directed to go to trial on the issue formed by the first plea.</p> <p>On the trial in the court below (Black, P. J.), the plaintiffs read in evidence, under objection by the defendant, the petition presented by them, and the notice thereof to the defendant, after proving its service. This was defendant’s first bill of exception to evidence.</p> <p>The plaintiffs then gave in evidence the order to the viewers, .and their report.</p> <p>The plaintiffs then called and examined a number of witnesses, • one of whom testified, that the lateral railroad, as proposed to be constructed by the plaintiffs, would be no interference to the defendant in working his mines; that there was no other point in that immediate neighbourhood whore the plaintiffs could connect with the state rpad, without interfering more with the defendant than it did at the point selected by them; that it was the shortest level on the road, being only about three hundred yards; that then it might be necessary for defendant, when business was brisk, to have more room than he then had, for standing his empty ears; that he was cramped for want of an additional side-track, which would be of easy construction. Another witness testified, that there was no other route, except the one selected, by which the plaintiffs could get out to the state road with their coal; that it would not interfere with the defendant’s operations; that all the damage he would sustain would be the loss of his land; and that the defendant was present when the viewers commenced their examination of the ground and proposed route for railroad. Other witnesses, besides corroborating the testimony above stated, testified that the only practicable route for the proposed railroad, was the one selected; that there was no other route over the land of the plaintiffs ; that no other could be adopted without injuring the defendant more; and that neither the timber nor land was valuable. The witnesses differed in opinion as to the damages which would be sustained by the defendant, by reason of the construction of the proposed railroad, ranging in their estimates from $50 to $100. It was proved that the plaintiffs were in possession of the ore-bank, and of the tract of land on which it was situated; that they built a two-storied hewn log house thereon, of the dimensions of thirty-two feet by twenty, and a stable also; that the house was begun in October, 1846, and finished in January, 1841; and that it was in actual occupation from the time of its completion. On the part of the defendant, it was proved, that- he laboured under great disadvantages for want of an additional side track from his mines to the state road; that the best route for its construction would be on the southern side, where the plaintiffs’ road intersected the state road. No evidence was given by the defendant, in relation to the proposed railroad of the plaintiffs, nor in relation to the damages which would be sustained by him from its construction and use. But he offered to prove, that the plaintiffs were not the owners of the land in which was their coal-mine. But the court were of opinion that the title to the land could not be tried on that issue; that if the plaintiffs were in possession, it was sufficient; and that the defendant might prove, if he could, that they were not in possession. This was defendant’s second MU of exceptions.</p> <p>The defendant’s counsel requested the court to instruct the jury as follows: — ■</p> <p>1st. That the act of the 5th May, 1832, and its supplements, have no application to the land described in the plaintiffs’ declaration ; that there is no law in force authorizing the proceedings which have taken place in this ease, and that their verdict ought to be for the defendant.</p> <p>2d. That whether the act of the 5th May, 1832, and its supplements, be extended to the land described in the plaintiffs’ declaration or not, the plaintiffs cannot support the proceedings which have been given in evidence, and have no right to a verdict in their favour, if they have failed to show that they were the owners of the said land, previous to the time their proceedings given in evidence as aforesaid wore commenced.</p> <p>3d. That as the title has not been shown by the plaintiffs to be out of the commonwealth, they have shown no such possession of the land previous to the commencement of their proceedings as the law would recognise, that their verdict therefore should be for the defendant.</p> <p>4th. That the plaintiffs have shown neither a legal nor an equitable title to the land described in their declaration.</p> <p>5th. That if the jury believe the land at the terminus of the proposed railroad of the plaintiffs belongs to the defendant, and that the possession of it by the defendant is necessary to the convenient conducting of his own coal operations, the plaintiffs cannot legally deprive him of that possession by the erection of hoppers and other fixtures upon the land.</p> <p>6th. That the officers of the commonwealth in the management of the Portage Railroad, cannot legally transfer the land of one man, or the possession thereof, to another, except so far as is necessary for the convenient use of said railroad; that the public have no more than a right of way over the land of the owner, and that he cannot legally be deprived of the possession of his land, further than is necessary for the convenient exercise of the rights of way by the public, over his land.</p> <p>Charge and answers of the court. — “This is a feigned issue formed for the purpose of trying whether a lateral railroad proposed to be made by the plaintiffs, is necessary and proper, and what damages the defendant ought to have for the making of it over his land.</p> <p>“The defendant has asked us to charge on several points of law, which we will take up in their order.</p> <p>“1st. We are of opinion that the law of 1840, supplementary to this one of 1832, extends the privilege of making lateral railroads to the whole state — consequently we answer this in the negative.</p> <p>“2d. The law is truly stated in this point. The law does not authorize any body but the owners of lands in the vicinity of the public improvements, to make railroads over the intervening lands of others. But the plaintiffs were not bound to prove title as they would in an action of ejectment. If they have satisfied you that they were in possession of the land on which the coalmine is, previous to the commencement of this proceeding, they have sufficiently proved their ownership. (Here the court referred to the evidence of their possession.)</p> <p>“ 3d. This is already answered. If the legal title was not out of the commonwealth — that is, if the land was not warranted, then the improvements made by the plaintiffs would prove sufficient title for the piu-poses of this proceeding, if not for all other purposes.</p> <p>“ 4th. If you believe the evidence to which I have already referred you, the plaintiffs have shown all the title they were bound to show.</p> <p>“ 5th. If the railroad proposed by the plaintiffs would destroy the defendant’s improvements altogether, and render his property wholly worthless, I am of opinion the verdict ought to be for the defendant. But will any suCh consequence result to Shoenberger by the making and using of such a railroad as Mulhollan and Lyon have asked for? It may cause Dr. Shoenberger some inconvenience, but the other party cannot be prevented from coming to market with their coal on account of a shade or two of inconvenience more or less, which it may cause him to suffer. At all events, it is your business to see that he suffers none but what he is paid for. You will make the damages high enough to compensate him for all the injury which the plaintiffs’ railroad is likely to do his property.</p> <p>“6th. We answer this point in the affirmative; The public has but a right of way over the lands through which their road passes. But the commonwealth had a right by its officers to determine when and where a connexion with their improvements shall be made by private individuals. If Lyon and Mulhollan can procure a right of way under the statute over the lands of Dr. Shoenberger, and can procure from the officers of the commonwealth the privilege of connecting with the Portage Railroad, at the proposed terminus, then they will have all they desire — certainly all they are entitled to.</p> <p>“ These answers dispose of all the law in the case. If you are satisfied from the evidence that the plaintiffs were owners of the coal-mine — that is, were in peaceable and undisturbed possession of it, at the time these proceedings commenced and since, then you will consider whether such a railroad as that asked for, is necessary and useful for the private purposes of the plaintiffs. If this be settled affirmatively, then ascertain what amount of damages will compensate the defendant for the injury which ■ may be done to his property, by the making and using of the railroad.”</p> <p>To this charge the defendant excepted.</p> <p>The jury found for the plaintiffs, and $ 100 damages for the defendant, who, thereupon, sued out this writ of error.</p> <p>Assignment of errors: In the record. — 1. The court erred by refusing to allow the special demurrer of the defendant below to be filed, and by treating it as a nullity.</p> <p>2. The court erred by ordering the two last special pleas of the defendant below to be stricken out, and by compelling him to go to trial on the issues formed by the first special plea.</p> <p>In the evidence. — 1. The court erred by admitting in evidence the petition, &c., as embraced in the first bill of exceptions.</p> <p>2., The court erred by rejecting the evidence proposed to be given by Peter Cassidy as to the George John survey (mentioned in plaintiffs’ proceedings) and the ownership of the coal-mines, spoken of by the plaintiffs’ witnesses, as embraced in the second bill of exceptions.</p> <p>In the charge. — 1. The court erred in their answer to the first point put by the counsel of thé defendant below.</p> <p>2. The court erred in their answer to the second point put by the counsel of the defendant below.</p> <p>. 3. The court erred in their answer to the third point of the defendant’s counsel.</p> <p>4. The court erred in their answer to the fourth point of the defendant’s counsel.</p> <p>5. The court erred in their answer to the fifth point of the defendant’s counsel.</p> <p>6. The court erred in their answer to the sixth point of the defendant’s counsel.</p> <p>7. The court erred in the conclusion of their charge, in saying —“If you are satisfied from the evidence that the plaintiffs were owners of the coal-mine, that is, were in peaceable and undisturbed possession of it, at the time these proceedings commenced, and since then, you will consider whether such a railroad as that asked for is necessary and useful for the private purposes of the plaintiffs. If this be settled affirmatively, then ascertain what amount of damages will compensate the defendant for the injury which may be done to his property by the making and using of the railroad.</p> <p>The question submitted was whether the road was necessary and useful, “for the private purposes of the plaintiffs,” thus excluding all inquiry as to its possible utility to any one else.</p> <p>They contended that a road of this description was not within the purview or spirit of the act of 1832. A reference to some of its provisions must satisfy any candid mind upon this matter. They will be seen to- be wholly inapplicable to the road in question. The fifth section empowers the applicant or owner of the road to enter upon any land near or adjoining it, and to take therefrom ground, stone, timber, or other materials required in its construction; the rate of compensation to be previously ascertained and settled by the parties, if they can agree, or by arbitrators in the event of their disagreement.</p> <p>The authority here granted to an individual to seize the property of' others and convert it to his own use, is precisely that which is usually given to turnpike and canal corporations; and the mode prescribed for ascertaining damages is the same in principle, if not in words, as that which has regulated those corporations. The sixth section makes it the duty of the proprietor of the road to file in the Court of Common Pleas a full statement and account of the expenses incurred in its construction, the amount to be verified by the oaths of one or more persons who shall have had knowledge of the same. On the assumption that private roads were contemplated by the legislature, this requisition would be ludicrous. But the object in view is distinctly expressed, while it fixes conclusively the character of the road. The filing the account in court is. enjoined, “ to the end that the said road, and the privileges appurtenant thereto, may he resumed hy the commonwealth whenever the legislature shall enact the payment to the proprietors of said railroad, their heirs and assigns, of the principal money expended in the construction of the same.”</p> <p>The seventh section confers upon the proprietors the right of exacting tolls for the use of the road by the public — a valuable franchise granted as an inducement to their outlay of capital, but expressly limited, as in the case of aggregate road corporations, so as to prevent extortion.</p> <p>Every -section and provision of the act is in strict harmony with the regulations above indicated. The grant of power is the same as that'which had been before repeatedly made- to aggregate corporations for kindred purposes : and in conferring this power the legislature were duly heedful of the fifth article of the declaration of rights, which forbids the taking of private property for public use without just compensation, and of the fourth section of the seventh article of the constitution, which declares that “the legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owner of said property, or give adequate security therefor, before such property shall be taken.”</p> <p>It is impossible to read the act without perceiving that the constitutional restrictions upon legislative interference with the rights of private property, were carefully attended to in its passage, and that an intention to authorize the forcible seizure of the property of one man by another for his own private use, cannot be justly imputed to the legislature. In this instance, as in that of aggregate corporations, the object of the legislature was to invite the investment of private capital in a way that might, be subservient to public accommodation. The remuneration offered is the right to exact tolls and enjoyment of the other valuable and exclusive immunities prescribed in the act. Enactments conferring the franchise of tolls for passage over a private road, which nobody but the owner can use, and reserving to the commonwealth the power to resume such private road upon reimbursing the cost of its construction, would seem to be preposterous. But they are sensible and provident in cases of roads of a public nature, and being expressly applicable to all the roads made under the act, they must be regarded as fixing its construction.</p> <p>An interpretation of the act which would authorize the taking of defendant’s property “for the private purposes of the plaintiff,” as charged by the court below, appears to me to bring it into direct conflict with the constitution. The reasons for this opinion will be briefly and most respectfully submitted to the consideration of the court.</p> <p>One of the purposes of a written constitution, is a clear, permanent, and effectual security to private property against the invasions of power. The safeguards provided in our own constitution, are as comprehensive as they are emphatic. The first section of the ninth article, declares “the right of acquiring,possessing, and protecting property,” to be “inherent and indefeasible;” thus denying and excluding the exercise of. a right of eminent domain by the legislature, except in the cases provided for in the constitution itself. One of those cases is found in the tenth section of the same article which forbids the taking of “any man’s property for public use without the consent of his representatives, and without just compensation being made.”</p> <p>The prohibitory form of expression used here might be supposed to warrant the idea, that the denial of power was intended to be exceptional, and that private property, except .in the instance given, is still left to the arbitrary will of the legislature. But such an interpretation would be inconsistent with the first section, which declares the right of property to be “ inherent and indefeasible,” and not less so with the last section, which is in those words: “To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government, and shall for ever remain inviolate.”</p> <p>The right of private property, formally asserted in this article to be “inherent and indefeasible,” unless required for public use,, on payment of its value to the owner, is one of the “things expressly excepted out of the general powers of government,” and for ever placed beyond the reach of the legislature: 2 Kent’s Com. 340; Taylor v. Porter, 4 Hill, 140; Scott v. Pittsburg, 1 Barr, 309; Wilkinson v. Leland, 2 Peters, 657.</p> <p>They argued, First, that the act of 1832 gave a right, not merely to appropriate the site of the roads, but to enter on lands adjoining, or near it, by whomsoever owned, and “take stone, gravel, timber, and other materials,” for building the road. The six per cent, reservation can hardly be said, in the case of a road for “ the private purposes” of the party, to cover the extraordinary privilege here given. But the privilege is a necessary part of the system, for no instance will be found in which the stone, gravel, and other materials, on the site of the road, would be sufficient for its construction; and without the privilege of entering upon other lands for a supply, the system would be a dead letter.</p> <p>The power to subject private property in the neighbourhood to the uses of the road, can only be referred to the right of eminent domain. Such, we are to presume, was the view of the legislature; and if the. roads contemplated by the act were not of a public nature, it must be unconstitutional.</p> <p>Second. The act of 1832 and its supplements are in pari materid, and to be regarded as a whole. The act of March 28,1840 (Dunlop, 798), makes it lawful for any person or incorporated company to construct railroads with double or single tracks, under the surface, over intervening lands, &c., to or from any mines of iron, coal, &c., and connecting with any railroad belonging to an individual or company, &c.</p> <p>The act of May 5, 1841, “ extends the provisions of the act of 1832, and the supplements thereto, to the construction of canals not exceeding in width the canals of the commonwealth.”</p> <p>The act of April 24, 1843, sec. 10 (Dunlop, 903), enacts in substance, that when the owners of any railroad possess the landing where it joins any canal or other navigation, and any lateral railroad shall be constructed to connect with such railroad, and the owners of the latter shall refuse to the lateral raiboad the use of the landing upon payment of a suitable compensation; a jury of five men shall be summoned, who, if they find the capacity of the landing sufficient to accommodate both roads, shall mark off a portion of land to be allotted to the main railroad, and “ fix upon a compensation suitable therefor, either in fee simple or as an .annual rent or price per ton, for the use of the sameand if the report of the viewers be approved by the court, they shall direct the landing to be opened for the use of the public, &c.</p> <p>Looking to these several acts as constituting an entire system, it is fair to suppose that they were dictated by the same general views of public policy, and that the authority to provide for the construction of lateral railroads and canals, "and securing of landings, were deemed to be referable to the same grant of power to the legislature. It is already shown that the reservation of six per cent, for roads, in patents, cannot, by any proper construction, meet the provisions of the act of 1832; but when those provisions are extended to subterranean roads and to canals, and when, especially, the seizure of landings to be held in fee simple, or at a fixed rent, is considered, it seems utterly impossible to defend this scheme of forcibly appropriating private property to private purposes upon any other ground or pretext than that of the right of eminent domain. It results of necessity that the legislature had in view works of a strictly public nature, or that the whole system, applied as in this case, is an assault upon private rights and forbidden by the constitution.</p> <p>The connexion of private lateral railroads, made under the authority of the act of 1832 and its supplements, with the railroad and navigable waters of the commonwealth, will be found beset with embarrassments of a very serious character. In the case of Cooper v. Smith, 9 S. & R». 32, Judge Duncan says: “ There is no right, custom, or prescription in Pennsylvania, by which one man can land or receive freight on another’s freehold on the banks of a navigable river, without his consent, even though it be on a public highway.” “It would be a violation of the constitution to deprive the owner of the soil of this right, and the legislature have always carefully guarded against such construction by the most explicit declarations.” In Chess v. Manown, 8 Watts, 219, the same principle was affirmed by the chief justice.</p> <p>Our system of exclusive property, guarded as it is by stern and formal restrictions of the right of eminent domain, may have its inconveniences. We find large bodies of land in the hands of men who bought for purposes of speculation, and who refuse to sell but at enormous profits; and thus the settlement of the country and developement of its resources are greatly retarded. Towns, and even cities, are environed by masses of vacant property, owned by persons who will neither sell nor build, whereby the extension of manufactures and commerce, and the countless interests to be sub-served thereby, are grievously frustrated. But these evils, if such they be, are inherent in our system of exclusive property, and until the people choose to remodel the -system, they cannot be reached by the legislature. But were it otherwise, it is questionable whether the remedy supposed to be provided in this instance would not be productive of greater mischiefs than any it is likely to redress. Lands bordering on navigable waters, and other commercial highways, were purchased in many instances at enormous prices, with a view to the advantages of their location. Lands more remote were bought without any such advantage, and at low prices. The effect of the lateral road system, as expounded in this case, will be to sink the value of purchases made, as in the instances first mentioned, and turn the latter into gainful speculations. But a worse consequence than this may be apprehended. Purchases will be made by speculators with no other view than that of forcing lateral railroads through intervening lands, and, this done, of selling out at exorbitant profits.</p> <p>Unproductive property in large masses may be withheld from sale for purposes of extortion, but it cannot be the interest of proprietors to withhold it for ever. Experience shows that all such schemes of speculation are attended with peril; and we may, at all events, rely on the usual vicissitudes of fortune, and the act for distributing intestates’ estates, for a corrective of the evils complained of.</p> <p>cited Harvey v. Thomas, 10 Watts, 65; Harvey v. Lloyd, 8 Barr, 331; United States v. Blight; Act of 7th of June, 1841, Dunlop’s Dig. 847.</p>

In error from tbe Court of Common Pleas of Huntingdon county. May 22. This was an action of debt on articles of agreement under seal, brought by William Couch and Andrew Couch against Edward Cox, to recover a balance of the purchase-money of two tracts of land, due under said articles.

<p>In error from the Common Pleas of Huntingdon county.</p> <p>The question in this ejectment was on a disputed boundary between two tracts. The plaintiff, in proving his title, gave in evidence the registry in the prothonotary’s office of the acknowledgment of a sheriff’s deed for land sold under an execution. He then gave evidence that the original deed had been delivered to Stewart, one of the defendants. Notice to produce having been given, Stewart was called, and said he had not brought the deed with him. The plaintiff then read in evidence a copy of the deed from the recorder’s office, entered in 1827.</p> <p>The admission of these was the first error assigned.</p> <p>The second exception was the rejection of the deposition of one Spanogle. It was proved he had not been sworn before the deposition was written, and that he had refused to answer the leading questions of the plaintiff on cross-examination.</p> <p>The exceptions to the charge, involving matters of fact rather than of law, are unimportant here.</p> <p>The last exception was, that the verdict was uncertain, but the materials from which this was said to appear, were not brought up with the record.</p>

<p>A technical retraxit is where a plaintiff, after declaration filed, comes personally into the court in which his action is brought, and declares he will not proceed further in it: and this is a bar to any subsequent suit for the same cause of action.</p> <p>A plaintiff, before declaration filed, addressed the following authorization and requirement in writing, signed by her, to the prothonotary of the court in which her action was brought: “E. McM. v. J. E. L. In the Court of Common Pleas of H. county: Sir, you are hereby authorized and required to discontinue for ever, and withdraw the above-stated suit for ever, on the presentation of this paper.” This paper was filed of record by the prothonotary: Held, that it was not a retraxit, but simply a discontinuance or nonsuit, and consequently neither a bar nor estoppel to a subsequent suit for the same cause of action.</p> <p>A record, if imbued with fraud, may be altered or explained by parol evidence.</p>

<p>May 23. This was an appeal by Charles Bratton and Thomas Fritz, executors of James Leator, deceased, from the decree of the Court of Common Pleas of Mifflin county, confirming the report of the auditor, in the matter of the distribution of the proceeds of sale of the real estate of George A. Lyon, sold by the sheriff.</p> <p>The case, and the questions, argued and decided here, are clearly and fully stated in the opinion of this court.</p>

<p>If a tract of land, which, in point of fact is unseated, be assessed as seated with the knowledge and assent of the owner, and the commissioners of the county, it must be taken as seated, so far as regards the assessment and collection of the taxes; and a sale of it for taxes as unseated would be void: and this, whether the taxes have or have not been paid.</p> <p>Land which is in fact unseated, and which is assessed as seated with the knowledge and assent of the owner, and the commissioners of the county, may, whenever it suits the interests or convenience of the county, upon giving reasonable notice to the owner, be retransferred from the seated to the unseated list, and be assessed as unseated; but the assessor has no right to retransfer it to the unseated list without reasonable notice to the owner, and if he do, a sale of it for taxes as unseated, is void.</p>

<p>A decision of this court, quashing an order of removal made by the justices of the peace, and the confirmation thereof by the Court of Quarter Sessions, is not conclusive on the appellee, nor does it close the question of settlement.</p> <p>Where, therefore, under a misapprehension of the legal effects of the judgment of this court, quashing an order of removal, and to remedy a supposed failure of justice, a private act of the legislature was procured to open the question of settlement and place it on its original grounds: the act was held to be merely supererogatory, and not unconstitutional.</p> <p>In the Court of Quarter Sessions, an order of removal confirmed, is conclusive against the appellant in favour of all the world; an order discharged, is conclusive between the parties litigant; and an order quashed, is conclusive on neither.</p>

May 24. This was an appeal by William Hays, from tbe decree of tbe Court of Common Pleas of Centre county, in tbe matter of tbe distribution of tbe fund raised by a judicial sale of tbe real estate of George Carr, by tbe sheriff.

<p>The statute of limitations begins to run against a claim on an attorney or his administrator for money collected for a client, from the time the client has notice or means of knowing of the receipt of the funds: and the onus is on the attorney to prove such notice or means of knowledge.</p> <p>The husband suing in right of his wife, cannot take advantage of the exception in the statute of limitations in favour of femes covert.</p>

<p>The deposition of a witness taken in another state, under a commission duly-executed and certified in conformity with the rules of the court out of which it issued, and regularly filed in the proper office, of which due notice, under the rules of court, was given to the attorney of the adverse party, is properly admissible in evidence.</p> <p>' It is not errdr in the court, to leave the sufficiency of the evidence of a parol agreement to the jury.</p> <p>In an action for damages for the breach of a parol contract, where the question of the establishment of such contract by the evidence, was left to the jury, instruction by the court to the jury, that if, under the evidence, they found such contract, the action would lie, is right and proper. t</p>

May 26. This was an appeal by Elizabeth Simpson, late Elizabeth Smith, tbe widow of James Smith, deceased, from tbe decree of tbe Orphans’ Court'of Centre county, refusing to award an inquest to make partition of certain lands, late tbe estate of tbe said James Smith, but then owned by William A. Thomas, under conveyances by the heirs at law of the said James Smith.

<p>In error from the Court of Common Pleas of Cumberland county.</p> <p>May 29. Paul Martin, the defendant in error, was plaintiff below, and brought this action in debt against John Piper and James S. Dunlop, administrators of James Piper, deceased, to recover the price of certain property levied upon and sold by him, as sheriff of Cumberland county, to James Piper, the defendants’ intestate. a</p> <p>It appeared that the plaintiff, by virtue of judicial process, issued on a judgment of James Piper, the defendants’ intestate, against one William Noacre, levied upon certain property of the defendant in the judgment and execution, amongst which were two stills, erected on the said defendant’s distillery; and of the property so levied upon he sold the following articles to the plaintiff in the said judgment: 26 mash hogsheads, 2 stills and fixtures, and 2 yeast vessels, for $210.22. The amount of the sales of all the property levied upon was $119.20. This suit was brought to recover the purchase-money of the articles sold to the said James Piper. The only controversy at the trial below was as to the levy and sale of the two stills, which the defendants contended the sheriff had no authority or power to levy upon and sell, as they were fixtures and attached to the realty. The deputy-sheriff testified, that the stills were set up in the usual way in the still-house at the time of the levy and sale; that on the day of the sale he expressed his doubts as to their right and power to sell the stills as personal property; that James Piper and William Noacre, the plaintiff and defendant in the writ of execution, then and there agreed that they should be sold and that they were accordingly sold, and purchased by James Piper, the said plaintiff; and that the stills were in use at the time of the levy. All the other facts and proceedings in the case will fully and clearly appear from the following case stated, in the nature of a special verdict on the appropriation of the money raised as above stated, and which was read in evidence at the trial of this case:—</p> <p>“In the matter of the appropriation of the proceeds of the sale of the personal property of William Noaere. The parties being all in court, agree that the money raised by the sale of the personal property of William Noacre shall be considered in court, for the purpose of appropriation; and that the question be decided and the appropriation made upon the following facts, reserving to all the parties the right to appeal without oath or bail. On the 22d day of January, 1842, William Noacre confessed judgment to James Piper for $2,609.94, which was entered of record and a fieri facias issued thereon on the same day, which was levied on the defendant’s personal property, and the property sold on the 1th day of February, 1842. Afterwards, viz: 24th February, 1842, C. Mellinger, for the use of himself and others, obtained a judgment against William Noacre for $545.01, upon which execution issued the same day, and was placed in the hands of the sheriff on the 25th February, 1842. Peter Ottisom, Robert Smith, and Isaac Moquart, severally, obtained judgments against William Noacre, which were entered and executions issued and placed in the hands of the sheriff, amounting altogether to $588. When these executions were placed in the hands of the sheriff by the respective plaintiffs, he was notified not to pay the proceeds of the sale in his hands to James Piper, and he did not. On the first day of the then next term, April, 1842, at the instance of the said C. Mellinger and all the other execution creditors subsequent to James Piper, the court granted a rule on the said James Piper to show cause why his judgment should not be opened and execution set aside. Previously to May 23d, 1842, depositions were taken to establish the fact that the judgment of the said James Piper and execution were fraudulent, having been given to hinder and delay creditors; and on that day, the court made the rule to ©how cause absolute, and directed an issue to try that fact: in which all the other execution creditors of William Noacre were defendants and the said James Piper was plaintiff. The issue came on to be tried on the 14th August, 1844, when a verdict was rendered for the defendants, upon which judgment was entered pro ut said issue, No. 212, April Term, 1842. On the 19th August, 1842, William Noaere presented his petition to the District Court of the United States, for the benefit of the Bankrupt Law, and on the 20th September, 1842, he was decreed by the said court to be a bankrupt: and subsequently, on the 10th day of March, 1843, obtained his final discharge and certificate. It was also admitted, that on the trial of the issue referred to, No. 212, April Term, 1842, William Noacre, a witness called by the creditors, testified, that the actual amount due and owing by him to James Piper, when the said judgment was confessed, was one thousand dollars.”</p> <p>On the 29th of April, 1846, the court, upon argument of the case stated, ordered the money to be paid to C. Mellinger, and to the subsequent execution creditors, in the order in which their executions were issued to and received by the sheriff.</p> <p>The court (Hepburn, P. J.) charged the jury that if they were “satisfied, from the testimony in the cause, that these stills were put upon the property during the time that it was occupied by William Noacre; that Piper’s execution issued against him, and that both he and Piper directed the sheriff to sell them; that they were sold, and that Piper, the plaintiff in the execution, became the purchaser: the sheriff, having paid the money on another execution under a decree of the court, is entitled to his money, and consequently to your verdict in this action, the stills being the only matter in dispute.”</p> <p>The charge was excepted to by the defendant. The jury found a verdict of ¡§213.24 for plaintiff.</p> <p>Errors assigned: 1. The court assumed the fact, and so submitted it to the jury, that Paul Martin, the sheriff, had paid the money under the decree of the court, to another execution creditor, when there was no evidence to that effect before the court or jury.</p> <p>2. If Paul Martin did so pay the money, and there was any evidence of the fact, then the legal presumption from the whole evidence is, that it was paid to him by James Piper, and it should have been submitted to the jury under the plea of payment, to determine the fact.</p> <p>3. A voluntary payment by the sheriff of an execution in his hands for collection, to the plaintiff, constitutes no cause of action in his favour against the defendant; so a voluntary payment by-the sheriff in this case, would constitute no cause of action in his, favour against James Piper.</p> <p>4. So far as the stills are concerned, they were part of the real estate, and bound by the lien of Abraham Grove’s judgment, and the sheriff had no power or authority to sell them either with or without the consent of William Noacre and James Piper. The writ for this purpose was a nullity, and such an agreement as was alleged would have worked a fraud against Abraham Grove, and as this action is -ea: contractu, the sheriff could not recover. The court, therefore, erred in their instruction to the jury.</p> <p>The sheriff pretended to levy upon the three stills while they were in actual use, substantially erected, and forming part of the freehold; and, upon such levy, to sell them. Though done by consent, the sale was void: 17 S. & R. 413, 415. To constitute a levy, there must he at least a control over the property in the sheriff, and the power of delivering them to the purchaser: 3 Rawle, 401; 7 Law Lib. 124; 1W. & S. 116, 390. Here he had neither. He might as well have levied upon a chimney in the house, or upon the roof, or a particular room. His execution, for such purpose, was a nullity. The authority was not merely erroneous, but was entirely wanting. It could not be supplied by consent. The sheriff, quoad hoe, was a trespasser: 8 Law Lib. 92; 46 Law Lib. 199; 51 Law Lib. 59, 80, 99; 1 W. 515. A trespasser cannot recover for his trespass. He sues on a contract. There was no contract, so far as regards the levy and sale of the stills.</p> <p>The sale was made on James Piper’s execution. There was none other in the sheriff’s hands. This execution was set aside by the court. The right to the money, if it had been paid, would have reverted to Noacre (if there had been nothing else in the way); consequently, there is no right of action in the sheriff: 1 Cranch, 117,131. So far as regards the stills, they were not and could not be removed. They remained in possession of Noaere) who was entitled to them: Tarbox v. Hays, 6 W. 400; 5 Co. Rep. 90.</p> <p>Rut Noacre, in the mean time, applied for the benefit of the bankrupt law, made an assignment, and procured his certificate. By the decree of bankruptcy, the property passed to the assignee by mere operation of law; from the time of such decree, every species of right passed, whether to the property or to the money —which is inconsistent with the right of the sheriff to recover: 7 Law Lib. 134 — 5, 187; sec. 3 of Bankrupt Law. The right of the assignee in bankruptcy was not affected by the decree of distribution, in the Court of Common Pleas. He was no party to it; and such decree only binds parties and privies: Cash’s Appeal, 1 Barr, 167. This was not a distribution .under the act of Assembly, binding every one; for no notice was given, without which the court had no jurisdiction beyond the parties in court: Act of 16th June, 1836; Dunl. Dig. 734.</p> <p>There was error also in the court assuming the fact, and submitting the case to the jury in that aspect, that Paul Martin had paid the money on another execution, under a decree of the court, when there was no proof of any such fact alleged or proved.</p> <p>Conceding the principles of law, stated by the gentleman on the other side, and the facts on which they are predicated, there is no available ground to reverse this judgment. The action is by a sheriff to recover the price of goods sold to the defendant: and the defence is two-fold. 1st. That the goods were not the subject of sale, because they were fixtures — part of the realty. The answers to this objection are conclusive, that the record shows that the goods were sold at the request of both the plaintiff and defendant in the execution, and there was no third person to gainsay their wish ; and, again, that a sheriff’s sale implies no warranty, and the purchaser must pay without regard to the title he acquires: Freeman v. Caldwell, 10 Watts, 9. The second position of the defendant is, that the court, without evidence, instructed the jury that the plaintiff had paid the money to the creditor, and, therefore, was entitled to recover it. It can be of no consequence whether the sheriff paid the money or not to the creditor, or what creditor was entitled to it. The sheriff sold the property ; is, therefore, liable to some creditor or other; and is, therefore, entitled to recover it, whether he has paid it or not. The record exhibits the fact, that the whole amount of the sheriff’s sale was appropriated by the court, from which there was no appeal: the correctness of the appropriation canpot now be questioned, nor otherwise than by appeal. Clearly, then, the sheriff may recover to enable him to pay, if he has not done so already.</p>

In error from the Common Pleas of Perry county. May 30, 31. This was an action of ejectment brought by Frederick A. Hack, David Ruthrauff; Jeremiah M. Kimberly, and John M. Walker, against Samuel Stewart, John Stewart, and Thomas Stewart, to recover a tract of land in Tyrone township, Perry county. The case is sufficiently stated in the opinion of this court. This was a case of legal fraud, and the court ought to have so instructed the jury.

<p>All persons who order or procure a trespass to be committed, and indemnify others for doing it, or incite them to do it, may be sued as principals.</p> <p>One, who directed the act complained of as a trespass to be done, adopted it, and bound himself to be responsible for it: H'eld, that he was a party in the trespass, if one were committed, and that he could not be compelled to testify for the plaintiff, although not joined in the suit, because Ms testimony would have gone to establish his own liability as a party; but Ms declarations, when against Ms interest, are evidence in a suit against his co-trespasser, and it is error to reject them.</p> <p>The books of a party who sues the sheriff for levying upon and selling his goods, under an execution against another, are evidence for such party: not on the principle under which shop-books are generally admitted, but as part of the res gesta, tending to show the nature of the plaintiff’s possession of the property in controversy. The books, in such case and for such purpose, are no more objectionable on the ground of being evidence made by the plaintiff for himself, than proof would be, that the plaintiff had sold goods, received the money for them, &c._, which would certainly be evidence.</p>

In error from the Quarter Sessions of Cumberland county. May 31.

. In error from the Common Pleas of Blair county. Case stated for the opinion of the court, whether the plaintiff, one of the heirs of Magdalena Zeigafus, is entitled to a share of the residue, under the will of Long.

In error from the Common Pleas of Cumberland county. Special verdict. Agnew brought an action of covenant against Bredin, in 1834, in Cumberland county. Pending the action, Bredin “dying, his widow administered, and was substituted as defendant in 1839. One of the counsel having been elevated to the bench, the cause was certified to a special court, and judgment obtained in 1841. A writ of error was taken, and the judgment affirmed in 1843.

<p>In an action on the case for a conspiracy to defame, by spreading false statements that defendant had cheated and defrauded a third person, (the words not being actionable,) and also by composing a libellous statement to the same effect: the declaration need not aver special damage.</p>

In error from the Common Pleas of Perry county. June 1. This was an action of debt, brought in the name of the commonwealth for the use of L. G-. Brandebury and G. Klink, on the official bond of Alexander Magee, late sheriff of Perry county, and his sureties, to recover the amount of a writ of fieri facias, placed in his hands for collection.

In error from the Common Pleas of Cumberland county. June 1. This case originated in an indictment in the Quarter Sessions, for cutting timber on the land which became the subject of controversy. When the indictment came on for trial, the prosecutors and defendants agreed to convert it into an amicable action of ejectment, in which the Farmers’ and Mechanics’ Bank were made plaintiffs, and John Harper and Sarah Miller, defendants.

In error from the Quarter Sessions of Cumberland county. June 1.

<p>In error from the Court of Common Pleas of Cumberland' county.</p> <p>June 2. This was a case stated, from which it appeared that one George Himes, the defendant in error, obtained and entered of record in the Court of Common Pleas of Adams county, on the 18th of October, 1842, a judgment by confession, without stay of execution, against Moses Mortland and David Harman, the plaintiffs in error. On the same day, a writ of fieri facias was issued on this judgment, which was returned on the 20th of October, 1842, “nulla bona,” by the sheriff. On the 29th of November, 1842, the plaintiff, George Himes, entered on the record a certificate or release, of which the following is a copy: — “ Phis is to certify that I exonerate Daniel Harman as security of Moses Mortland, in a judgment I hold against them, on the docket of Adams county, Pennsylvania; as witness my hand and seal, this %9th of November, 1842.</p> <p>George Himes, [l. s.]</p> <p>Witness: William Himes.”</p> <p>To November Term, 1845, No. 135, the judgment in this case was transferred by certified copy of the whole record, under the act of 16th of April, 1840, to the records of the Court of Common Pleas of Cumberland county. On this judgment a writ of attachment in execution was then issued,- under which, a sum of money, amounting to $90 — funds belonging to Moses Mortland— was attached in the hands of William M. Biddle, Esq., who was summoned as garnishee.</p> <p>The question, under the facts submitted to the court for decision, was, whether the release of George Himes to Daniel Harman, the surety, of the 29th of November, 1842, operated also as a release or discharge to Moses Mortland, the principal in the judgment, and as an extinguishment of the judgment.</p> <p>The court (Hepburn, P. J.) directed judgment to be. entered for George Himes, the plaintiff, for the amount of the judgment; and this was the error assigned here.</p> <p>In a fieri facias and attachment under act of 1836, the defendant may plead any plea that he might have taken advantage of upon a scire facias post an. et diem; every object of a scire facias being provided for in the act itself: Ogilsby v. Lee, 7 W. & S. 445. We say, therefore, that no judgment can be given against Harman, who has been released — and consequently none against Mortland, who was jointly bound with Harman. It would be in effect giving two final judgments on a joint contract, which cannot be done; because each defendant is entitled to the benefit of his co-defendant’s plea. The plaintiff in contract or personal action must succeed against all the defendants or none: O’Neal v. O’Neal, 4 W. & S. 131. If a creditor release one of two joint debtors in a bond or judgment, or simple contract, it will discharge the other: Burson v. Kincaid, 3 Penn. Rep. 57; Ingersoll % Sergeant, 1 Whart. 358; 1 Rawle, 391, 398.</p> <p>The plaintiff by his suit elected to treat this as a joint claim, and. is bound by all the legal effects and consequences of a strictly joint demand. For, in a joint action against two on a joint and several bond, if the writ be served on one only, and judgment be taken against him, and the other is returned non est inventus, the judgment against the obligor who appeared, is a bar to the suit against the other: Beltzhoover v. Commonwealth, 1 W. 126 ; Downey v. Bank, 13 S. & R. 288; Walter v. Gingerich, 2 Watts, 204. Then after treating defendants as joint, courts will not permit the creditor, without the consent of the defendants, to change the liability from a joint to a several one: 1 Whart. 358.- Here Mortland’s liability was joint, and he never agreed to the release of Harman: nor to his (Mortland’s) being bound severally. See 2 Watts, 204.</p> <p>They also cited 40 Law Lib.; Pitman on Prin. and Su. 131,132; Nicholson v. Preville, 4 Ad. & Ell. T5; 1 Bos. & Pull. 630; 1 Sto. Eq., sections 112,124 and notes, 146 and 164; 1 Eonb. Eq. 134; 2 Watts, 204.</p> <p>At law, the general rule is, that the release of one joint judgment creditor is, per se, the release of the other. Primd facie, they both stand equally bound for the payment of the debt, and in equal parts. That being the import of the contract between all the parties, plaintiff and defendants, it cannot be •changed without the consent of all. If the plaintiff, by his own act, discharge one of the defendants, the contract, being an entirety, is at an end. But this is not always so in equity; and equity, in this court, controls the law. One of the exceptions to the rule is where one of the defendants is principal debtor, and the other but surety. And this is the position of the two defendants in this ease. The fact is made part of the special verdict. Mortland is the sole debtor, and bound to pay the whole; and a court of equity would enforce such payment, if necessary to indemnify Harman, the surety. The plaintiff then, in this case, has only done what a court of equity would have done, put the burden in the right place, and administered the law according to the principles of equity. The design of the parties, and the justice of the case, will restrict the release to the one defendant to whom it was given, and leave the obligation to the other in full force. This doctrine is sustained by the ease of Kirby v. Taylor, 6 Johns. Ch. B. 250. This case is full to the point; and it is cited with approbation by Chief Justice Gibson, in McLenachan v. Commonwealth, 1 Bawle, 361; 8 T. B. 168. -</p> <p>The ground of the rule in law in discharging both, is the protection of the rights of the defendants, that their mutual burdens shall not be cast upon pne. But suppose, in this case, Harman, the surety, had paid the debt either voluntarily or on compulsion: by our law, tempered by equity, he would have been entitled to substitution in the judgment as against Mortland, and could himself have enforced payment of it by him.</p> <p>It is said Harman may have paid the judgment as a consideration of the exoneration. This would only change the equitable plain-’ tiff, and the court below will take care of its suitors. Even if paid by Harman, the -judgment is good against Mortland. He also cited Burson v. Kincaid, 3 P. It. 57; Bank of Pennsylvania v. Winger, 1 Itawle, 302.</p>

June 2. This was an action of covenant, in which Paul Martin, the plaintiff in error, was the defendant below.

In error from tbe Common Pleas of Cumberland county. June 2 and 3.

June 5. .Abraham Adams, the defendant in error, who was plaintiff below, in his statement filed, claimed to recover the sum of $96.62-J from James McGuire, administrator of Hetty Adams, for the board of, and attendance upon the said Hetty in her lifetime, and for taking care of and keeping her stock on the farm, after her death, and for the expenses of her funeral. The defendant pleaded non assumpsit, payment, and set-off. The plaintiff replied non solvit and no set-off.

June 5. On a settlement of an administration account, Keller claimed credit for the loss on a note held by decedent. The note matured September, 1842. Decedent died January 3d of that year. In 1842 and 1843 payments on account were made, which reduced the note one-half. Suit was commenced in October, 1843, after an assignment for creditors by the drawer.

<p>June 5. Testatrix, by her will, made in 1843, after directing her funeral expenses to be defrayed out of her “estate,” devised certain land to Culbertson, “ under the condition he pay all my legal debts due at the time of my decease.” She then bequeathed $1,000 to Mary Kozier, payable in one and two years after the payment of debts. She also gave her all her personal property not thereinafter specifically bequeathed. To Mrs. McEait (who died about three years before the date of the will) $600, to be paid one year after payment of the legacy to Mary Kozier; to Culbertson $10, payable one year after the legacy to Mrs. McEait.</p> <p>Testatrix died some time in 1843, indebted among other things on two bonds, falling due after her decease. Culbertson refused to accept the land devised to him.</p> <p>The proceeds of the real estate, after deducting the expenses of the sale and the debts, were less than the legacy given to Mary Kozier — but if the debts not due at testatrix’s death were excluded, the proceeds exceeded the amount of the other debts and legacies.</p> <p>The court below stated the account, mingling the proceeds of the real and personal estate, which resulted in a balance for distribution of $2,041.08, which was directed to be paid to Mary Kozier and Culbertson, “ in the proportions which the legacy to Culbertson bore to the whole estate.”</p> <p>The heirs of testatrix contended that only the legacies were payable out of the land, and that the debts not due at the time of testatrix’s death, were not chargeable thereon, but were payable out of the personalty, and that the surplus of the real estate should be distributed among them.</p> <p>The charge is only of debts due “ at the time of my deceaseif then debts not yet matured are included, of what effect are these words of desertion, and the court is bound to give them effect: Ward on Leg. 194-5; 2 Miles, 412. This view is strengthened by considering that the personalty, which is the primary fund, is not exonerated by this charge unless there are express words of exoneration: 2 Yern. 48; 3 Atk. 201; 1 Cox, 1;'ll Yez. 186; 18 lb. 132; 9 lb. 447; 4 lb. 816 ; 3 lb. Ill; 2 Yern. 120 ; 2 Sch. & Lef. 538; 1 Ball & B. 312. The legacy to Mrs. McFait having lapsed, merged for the benefit of the heirs, and they are entitled to the proceeds of the land, after payment of the legacies charged thereon.</p> <p>The inclination of the Pennsylvania decisions is to favour charges of legacies and debts on the land; and this may be done by mere words of implication: 1 Bawle, 336; 3 Penn. 533; 7 W. & S. 407. Here there is an express charge by the words of the will; 1 Bop. 325; 1 Atk. 382; 1 Yes. 135; 7 Cow. 71. By the specific devise over of all the personalty, the charge on the land is in exoneration of the otherwise primary fund. The argument on the other side creates an intestacy, though by the plain words all the estate was devised.</p>

In error from the Common Pleas of Perry county. The question in this case was, whether McIntire, who was summoned as garnishee in an attachment of execution,' had any funds in his hands liable thereto. The facts were these: — James Morrison died seised of lands of which partition was made in the Orphans’ Court. The heirs were three sons and six' daughters.

In error from the Common Pleas of Juniata county. June 5 — 6. The trustees of the Tuscarora Academy issued a scire facias on a mortgage; to which James Mathers and others, terre tenants, appeared and took defence. The only material issue was that joined with the terre tenants; and the question was, whether the plaintiffs’ mortgage had been discharged by a sheriff’s sale. The land in question had been devised to Towers, in 1829, subject to a legacy.

In error from the Common Pleas of Juniata county. June 6. This suit originated before a justice of the peace, and was brought by John Clark, the defendant in error, against Joseph M. Brice, the plaintiff in error, who appealed from the judgment of the justice to the Court of Common Pleas of Juniata county. The case is stated in the opinion of this court.

In error from the Court of Common. Pleas of Cumberland county. June 7. Jacob Barnitz, the defendant in error, brought case in assumpsit against A. G. Ege, the plaintiff in error, on the guaranty of a bond. It appeared from the evidence, as disclosed by the paper-hoolc, that C. N. Ege and A. G. Ege were, with others, children and legatees under the will of Michael Ege, deceased, which was proved on the 5th of March, 1827.

In error from the Court of Common Pleas of Franklin county. June 8. This case came into the court below on certiorari to George W. Toms, Esquire, a justice of the peace, to return the proceedings in a certain prosecution before him, at the suit of the Commonwealth, against one Jacob Specht.

In error from the Court of Common Pleas of Franklin county. June 8. Trespass guare clausum fregit by John Beaver against Samuel Filson. The only question tried in the court below, and argued here, was as to the title to a lot of ground on which a brick building had been erected, and which was occupied as a church. The parties claimed title under George Werner and John Dickey, who were at one time owners of distinct portions of the lot in controversy.

<p>In error to the Common Pleas of Franklin county.</p> <p>June 8. Samuel Miller and Jacob Eberly, executors of Jacob Zent, brought case against Jacob Heart and George S. Eyster, on a joint and several promissory note given by the defendants to plaintiff’s testator, in his lifetime, and declared in assumpsit. The declaration contained two .counts: the first laying the promise to the testator, in his lifetime: the second laying the promise to the executors. To this, the defendants pleaded severally non assumpsit and non assumpsit infra sex annos; upon which pleas, issue was joined, and the cause went to trial. At the trial of the cause, the plaintiff gave in evidence the note on which suit was brought, and the endorsements thereon. The said note and endorsements thereon, wTere in the following words:—</p> <p>“ One year after date, we, or either of us, promise to pay Jacob Zent, or his order, three hundred and fifty dollars, with interest, without defalcation, for value received. January 9th, 1888.</p> <p>Jacob Heart,</p> <p>George S. Eyster.”</p> <p>“Received the interest on the within note up to the 9th January, 1839.”</p> <p>“ Received twenty-one dollars, being the interest for one year. May 23d, 1840.”</p> <p>“Received on the within note, twenty-one.dollars, being the interest for one year. June 3,1841.”</p> <p>“ Received interest up to June, eighteen hundred and forty-two. 1842. ”</p> <p>“Received interest up to eighteen hundred and forty-three. 1843. ”</p> <p>“Received on the within note, twenty-one dollars, being interest for 1844.”</p> <p>It was admitted that the endorsements were all in the handwriting of Jacob Heart, and put on the back of said note by said Jacob Heart; that the said Jacob Heart made .all the payments of interest mentioned in said endorsements, at the time they severally bear date; that all the said payments of interest and endorsements were made by said Heart, before the expiration of six years from the time the said note became due; that George S. Eyster signed the said note as surety; that the signatures to said note were in the proper handwriting of the said Jacob Heart and George S. Eyster. Jacob Zent died in the summer of 1845.</p> <p>His honour Judge Black instructed the jury in substance, that the plaintiffs were entitled to recover against Jacob Heart, but not against George S. Eyster; and that, as this was a joint suit on a joint contract, the plaintiffs must recover against both defendants, or they must fail altogether; and the jury were therefore instructed to bring in their verdict for both the defendants.</p> <p>Yerdict and judgment for both defendants accordingly.</p> <p>The question here was, Whether the payment of interest, within six years, by the principal in a joint and several promissory note, operated as an acknowledgment of the debt by the surety in said note, and took the case out of the statute as to him.</p> <p>Six annual payments of interest were made by Heart before the expiration of the six years. Payment by one is payment for the other. It is a discharge fro tanto of both. The acquiescence of both is presumed. During the six years they were agents for each other. The statute does not destroy the debt, it only takes away the remedy. Either of the joint makers of a note may, by a payment or acknowledgment, waive*the benefit of the statute as to the others. If Eyster had alleged and proved a fraudulent collusion between Zent and Heart, to deprive him of the benefit of the statute, it would have been evidence for the jury. This was not alleged. In Whitcomb v. Whiting, Douglas,. 652, it was decided that the admission or acknowledgment by one joint maker of a note takes the case out of the statute as to the others. This case, although somewhát doubted, has in England been firmly established. Perham v. Raynal, 2 Bing. 804, in 9 Com. L. R. 418; Pease v. Hirst, 10 Barn. & Cress. 122, in 21 Com. L. R. 39; Pritcher v. Draper, 1 Russell & Mylne, 191; Burleigh v. Scott, 8 Barn. & Cress. 36, in 15 Com. L. R. 151; 6 Bouvier’s Bac. Abr. 401 in note, and 402 in note; 2 Saund. 64, (a) in note ; 2 Chit. Bl. book 3, in note, on page 244. Perry v. Jackson, 4 T. R. 519.</p> <p>Whitcomb v. Whiting has been recognised as the law of this country: 3 Kent’s Com. 49: Hunt v. Bridgman, 2 Pick. 581; Ilsley v. Jewett, 2 Mete. 168; Sigourney v. Drury, 14 Pick. 387; Getchel v. Heald, 7 Greenl. 26; White v. Hale, 3 Pick. 291; Coit v. Tracy, 9 Conn. R. 1; 8 'Conn. R. 268; Johnson v. Beardslee, 15 Johns. 3; Ery v. Barker, 4 Pick. 382; Manson v. Felton, 13 Pick. 206. Barney v. Smith, 4 Harr. & John. 485; Bound v. Lathrop, 4 Conn. R. 336 ; Beitz v. Fulton, 1 McCord’s R. 541.</p> <p>The same principle has been frequently indirectly, and in one case, by Judge Tilghman, directly recognised in this state. It has been held that a payment or acknowledgment revives the debt, and although the plaintiff relies on the new promise, he may declare on the original cause of action, and give the new promise in evidence, even if made after suit brought: 10 Watts, 175; 2 Rawle, 102; 3 Wash. O. C. R. 404; 2 lb. 514; 2 Burr. 1099; 1 Whart. Dig. 538, sees. 69-70; 17 S. & R. 128; 5 Bin. 198.</p> <p>In New York and Connecticut, the promise of one partner even after dissolution, takes the case out of the statute as to the others. This has also been held to be the law in this state in the case of a liquidating partner. Endorsement of a note in the name of the firm; and in the case of a partner remaining in possession of the place of business: Patterson v. Choate, 7 Wend. 441;' Smith v. Ludlow, 6 Johns. 267; Austin v. Bostwick, 9 Conn. R. 498; 3 W. & S. 345 ; 5 Whart. 530; 4 Barr, 205; lb; 242.</p> <p>It has never been doubted that the promise of one' partner, during the continuance of the partnership, will bind the firm: 3 Kent’s Com. 49; Ward v. Howell, 5 Harr. & John. 60; Cary on Partnership, 5 Law Lib. mar. p. 54; Wood v. Braddock, 1 Taunt. 104.</p> <p>In Bell v. Morrison, and Levy v. Cadet, the acknowledgments by the one partner were not only made after the dissolution of the partnership, but after the bar of the statute had taken effect. Judge Story, in the former case, admits the authority of Whitcomb v. Whiting, and grounds the decision-on the peculiarities of the statute of Kentucky, and the uniform decisions of that state.</p> <p>Since Jones v. Moore, the decisions in Pennsylvania have been uniformly governed by the principle that an acknowledgment does not revive the old debt, but is evidence of a new promise, for which the old debt is the consideration: 5 Binn. 573; Magee v. Magee, 10 Watts, 173; Levy v. Cadet, 17 S. & R. 126; Burghaus v. Calhoun, 6 Watts, 220; Gilkyson v. Larue, 6 W. & S. 218 ; Fritz ¶. Thomas, 1 Whart. 70. And although the anomaly of declaring on the old debt, and replying to a plea of the statute a new promise, is still recognised (17 S. & R. 128; 2 Rawle, 357; 1 Whart. 71); yet the result of the cases is, that the action cannot be sustained, unless upon evidence of a new promise, express or implied, between the original parties to the contract, to pay the same debt, without qualification or condition. Otherwise, the plaintiff must declare on the new'promise, to avoid the consequence of the variance: Jones v. Moore, 5 Binn. 573 ; Thomson v. Peter, 12 Wheat. 565; Kline v. Guthart, 2 Penn. R. 490; Pittam v. Foster, 1 Barn. & Cress. 248, in 8 Eng. Com. L. R. 67; Levy v. Cadet, 17 S. & R. 128; Bell v. Morrison, 1 Peters, 351; Exeter Bank v. Sullivan, 6 N. H. Rep. 137; Wetzell v. Bussard, 11 Wheat. 309. That one joint promissor cannot take the case out of the statute, as to the others, by an acknowledgment after the bar of the statute is complete, is well settled by the cases cited from 17 S. & R. 128; 6 N. H. Rep. 137; and 1 Pet. 351 (the reasoning in which latter case is adopted by our own court in Magee v. Magee). But the courts in England and in many of our sister states, following the lead of Whitcomb, v. Whiting, have decided the very reverse; a consideration that weakens the force of the cases from the same courts cited in this argument, and relied upon as decisive of the very question in this case. Whit-comb v. Whiting, and other cases of the same class, were avowedly “considered” by the court, in Levy v. Cadet, which was expressly ruled “upon general principles,” and was not put upon the fact that the acknowledgment was not made till after the expiration of the six years. It has, therefore, all the effect of overruling them. It must be borne in mind, however, to reconcile the case in this aspect of it with Houser v. Irvine, 3 W. & S. 345 (in which it is decided that a promise by one partner, after dissolution, but within the six years, hinds the firm, and takes the case out of the statute), that the last case was ruled by the governing principle, in the ease of Desaque v. Davis; in which the general authority of a liquidating partner was held to be far more extensive than it was recognised to be by the court in Levy v. Cadet. In Forney v. Benedict, 5 Barr, 226, it is said that the acknowledgment of the debt does not stop the progress of the statute. It creates a new and independent promise. And the true consideration of the promise made within the six years, is the injury it might work to the creditor by inducing him to repose on it till it would be too late. Hence, where the promise could have no such effect, it is nudum pactum, as was decided in Case v. Cushman. Tested by this rule, there ivas no consideration passing from Eyster to Zent, when the latter relied upon the partial payment made by Heart. It is absurd to say that Heart had authority, as the agent of Eyster, to make payment. The principal debtor agent for the surety, in paying his own debt! It is clear that Heart could make no new express promise that would bind Eyster. How, then, could the latter be bound by an act which gives but the implication of a promise ?</p>

In error from the Common Pleas of Franklin county. June 9. Case stated for the opinion of the court, with leave to take a writ of error, in an amicable action of covenant, in which Daniel Cobel and George Cobel, executors of John Cobel, sen., deceased, were plaintiffs, and Daniel Cobel, jun., ivas defendant.

From the Common Pleas of Huntingdon county. This was an application by John and Jaeob Neff, to be subrogated to a judgment recovered by Gwin against Miller. The facts were these: In 1839, Gwin obtained a judgment against David Miller and Isaac Neff, the latter being a surety for Miller. In 1848, Isaac Neff’s land was sold by the sheriff. Jane Smith at that time held a judgment against'Isaac Neff — ’John and Jacob Neff — the two latter being sureties for Isaac.

The question in this case was whether an execution on a judgment confessed by an executrix could be levied on the assets of her testator.

<p>In error from the Common Pleas of Centre county.</p> <p>Case stated in an action of dower. In July, 1833, James Smith, the husband of the demandant, being seised of the land now in question, subject to his mother’s right of dower, entered into articles for the sale of the land to Eranklin B. Smith, for $10,500. The purchaser agreed to pay all judgments and liens on the estate, then amounting to about $5,000, and to save the vendor, his heirs, executors, &c., harmless, from them. $3,000 of the purchase-money was to be retained, secured by mortgage, by the purchaser during the life of the vendor’s mother, and at her death paid to him, and the residue was to be paid on the execution of the deed on the 1st of April following. The purchaser further covenanted, that if the liens existing against the estate were not satisfied by the 1st of April, he would give the vendor satisfactory security against them.</p> <p>James Smith died before the 1st of April, leaving his widow, the demandant, who, together with one Dale, administered to his estate. Franklin B. Smith assigned his right under the articles to Thomas, subject to the payment of the purchase-money as stipulated to be paid by the articles, who procured it to be proved in the Common Pleas, pursuant to the act of 1792.</p> <p>Upon this, Mary Smith and Dale, the administrators of James Smith, presented a petition to the Court of Common Pleas, praying leave to execute a deed to Thomas, according to the contract. The court decreed accordingly, and the administrators executed a deed for the land to Thomas. This deed recited the seisin of Smith, the contract, the petition and decree, and conveyed the land “ and also all the estate, right, title, interest, &c., of the said James Smith, in his lifetime, and of them the said Mary and Dale, since his decease, in law or equity,” and was sealed by the grantors, and signed without the addition of their official character.</p> <p>Among the judgments against James Smith, which bound his estate, was one in favour of Franklin B. Smith, and another which had been assigned before the contract of sale was made. After the death of James Smith, his administrators were substituted as defendants to a sci. fa. to revive, and judgment taken against them. This judgment was again assigned to one Valentine, after the execution of the deed by the administrators of Smith. The land included in the deed was then levied on and sold, and conveyed by the sheriff to Thomas, the grantee in the administrator’s deed. The administratrix having moved to set aside the writ before the sale, Thomas filed in the court a sealed instrument, declaring it was not his intention, in procuring the sale, to defeat any of the covenants contained in the contract, and bound himself to carry all his own covenants into effect. Thomas paid the purchase-money, $2,000, to the sheriff, and had also executed a mortgage to secure the dower of James Smith’s mother, pursuant to the articles. It further appeared that on the final administration account there wa3 a balance of $34 due to the estate.</p> <p>Whether, under these circumstances, Mary, the widow of James Smith, was entitled to dower, was the question.</p> <p>The court (Woodward, P. J.) .gave judgment for the defendant.</p>

In error from the Common Pleas of Berks county. This was an action on the case, brought by Jacob Yeiser against the Philadelphia and Reading Railroad Company, to recover damages for the burning of his woods and fences by sparks from the defendants’ engines, the fires of which he alleged were negligently managed.

In error from the Court of Common Pleas of Berks county. In the court below, Daniel R. Foust brought an action of debt against David Renno and John Miller, upon the following bond:— “Know all men by these presents, that we, David Renno, of Womelsdorf, and John Miller, of Bernville, and both of Pennsylvania, are held and firmly bound unto Daniel R. Foust, of Bern-ville, and state aforesaid, in the sum of $T56.48, lawful money of the United States of America, to be paid to the…

<p>In error from the Common Pleas of Berks county.</p> <p>The facts of this case are fully set forth in the charge of the. court below; and, as no other exceptions were argued in this court, either upon the argument in 1841, or upon the reargument in 1848, but those taken to the charge, it will be sufficient to present the case to the profession, as it was presented to this .court by the court below. Upon the trial there, Jones, P. J., charged the jury as follows:—</p> <p>“This is an action on the case for obstructing a certain race through which the water flowed to the plaintiff’s clover-mill.</p> <p>“ In 1830, George D. B. Keim was seised of a tract of land in this county through which flowed a stream of water, formed by the confluence of springs arising on the land, and of a stream of water flowing into it from land situated above it. The stream thus formed, flowed in its natural channel, through the lower part of the meadow on Keim’s land, into the tract below, and was used by him at the proper season of the year for the purpose of irrigating the meadow, by means of a ditch on the higher part of the meadow, and so much of it as was not consumed, flowed back again into the natural channel, by which it entered the farm adjoining below, the property of John Esterly.</p> <p>“ By Ms deed of the 28d March, 1830, John Esterly conveyed to Keim, in fee, the said farm adjoining him beloyf, containing about two hundred acres. Keim, having thus become the owner of both farms, in the same year erected on the lower farm a mill for cleanr ing clover-seed, &e., and for the purpose of supplying this mill with water, constructed a long ditch or race, principally on the upper farm, with a pond or dam near the mill (which pond was also on the upper farm), through which the water of the stream before mentioned was conducted out of its natural channel for the purposes of the mill at such times as it was thought necessary to put the mill in operation.</p> <p>“ On the 31st December, 1841, Keim conveyed that tract of land, on which the race and dam were, to Messrs. Muhlenburg & Schwartz, whose deed was recorded on the 9th April following. On the 6th August, 1842, Keim mortgaged that tract of land on which the mill was, to Jacob Bechtel and others. On the 22d October, 1842, Muhlenberg & Schwartz entered into articles of agreement with the defendants, acting as the agents of their mother; whereby they covenanted to convey to her a certain portion of the tract purchased by them of Keim, on which portion were the race and dam in question; and, in pursuance of those articles, they executed their deed to her on the 29th April, 1843. By virtue of a levari facias, on a judgment confessed by Keim upon the scire facias issued on the mortgage given by him to Bechtel and others, that tract still held by Keim, and on which was the mill,'was sold by the sheriff to the plaintiff, who received the sheriff’s deed therefor, on 5th November, 1844.</p> <p>“In neither of those deeds to Muhlenberg & Schwartz, or from them, is any mention whatever made of this race and dam; nor is there any reservation to Keim and his heirs or assigns of any right whatever to have the water íIoav through that race to the mill, or to enter upon the land uoav of the Levans, for the purpose of repairing, cleaning, or doing anything else to this race and dam. By the first of those deeds, the land passed absolutely, and without any restriction or reservation whatever in favour of Keim, to his grantees, who acquired the most entire and perfect dominion over it, the largest and most comprehensive known to our laws. Whatever may have been the relations and understanding beUveen Keim and his immediate grantees, with regard to this land, Mrs. Levan, in purchasing of them, was not required to go further than their recorded deed in fee; which was equally notice to Keim’s mortgagees of the lower tract, and to the purchasers from Keim’s grantees of the upper tract, of the extent of the rights of these last. That deed reserving no right to this race — no right to have the waters flow through it to the mill — no such right remained in Keim, or in those claiming under him, by any subsequent conveyance or encumbrance, of that lower tract. Mrs. Levan took the upper tract from Muhlenberg Schwartz, as their deed conveyed it to them, as fully and as amply, as free and as exempt from all reservations in favour of the oivner of the lower tract, as they had held it; and consequently she had a right to fill up that race, or divert its waters, at her own mere will and pleasure; and for the doing of this, no action can be maintained against her, or those claiming under her.</p> <p>“ The plaintiff has submitted to us six points, agreeably to -which, we are requested to charge you. We will take them up in their order:—</p> <p>“ 1. It is true that the rights of the plaintiff, who purchased at sheriff’s sale, under the mortgage by Keim to Bechtel and others, are the same as those of Keim, on the 6th of August, 1842, which was the date of the mortgage. Whatever right, title, or interest, Keim had in the lower tract on that day, was bound by this mortgage, which became the measure of the right, title, and interest of the sheriff’s vendee, under proceedings upon it. If Keim had then a right to the flow of water through that race, as appurtenant to the mill, or by virtue of any previous reservation or grant, such right would, we take it, have been bound by the mortgage, and would have passed to the sheriff’s vendee of the mortgaged premises. But, before that day, Keim had conveyed the upper tract, on idhich were the race and dam, in fee, without any reservation of such right, and on that day he had no such right that he could bind by mortgage. Me had no right to the flowing of the water in that race ; no right to enter upon that upper tract to clean or repair the race, or for any purpose whatever, save only by the sufferance of Muhlenberg and Schwartz.</p> <p>“2. The plaintiff is not entitled to recover under the sheriff’s deed, and that -whether the defendants did or did not give notice, as they allege. The right in this case does not in any manner depend upon the fact of the defendants having given notice at the sheriff’s sale, that they claimed this race.</p> <p>“ 3. However necessary and incident to this mill, this race may be, and notwithstanding it was occupied by the servants or tenants of Keim, and by the plaintiff, for fifteen years before suit brought, still, if Keim conveyed away the land, on which it is, in fee, when he had a right to do so, and made no reservation of it, all right to the easement here claimed was lost by him and by those claiming it under him.</p> <p>“ 4. The mortgage and sheriff’s deed given in evidence, do not convey the race in controversy as incident and appurtenant to the mill. If Keim had mortgaged the lower tract on which the mill is, before he conveyed the upper tract in fee, that might alter the case. But he could not have claimed incidents or appurtenances to his own land, in land by him conveyed to another in fee, without having reserved them in his deed to that other.</p> <p>“ The cases of ways of necessity, cited from Croke James, 170, and 2 Lutwyche, 1487, held to exist in favour of grantors, are of doubtful authority. The necessity here is self-created, and such a necessity could not be, in the words of Sergeant Williams, either in law or reason any justification of a trespass committed on another’s lands: Pomfret v. Pycraft, 2 Wms. Saund. 323, n. 6; and if it could not afford a justification for a trespass, supposing Seibert to be a defendant here, of course it can afford him no foundation for a right to recover, being a plaintiff.</p> <p>“ 5. Muhlenberg and Schwartz’s consent to Keim and his tenants using the dam and race after his deed to them and up to the date of his mortgage to Bechtel and others, as Keim had occupied and used it before his deed to Muhlenberg and Schwartz, does not entitle the plaintiff to recover. They might have permitted this use or not, as they pleased; it might have been even an adverse use, but whether permissive or adverse, it can give no right as against the Levans. They are not bound by the mere permission, express or implied, of Muhlenberg and Schwartz, nor are they bound by any adverse use short of twenty-one years. The moment the Levans came in they had a right to do with this land, whereon the race and dam are, what they pleased.</p> <p>“ 6. We -cannot say, that, under all the circumstances in this case, the law will imply a reservation of the right to the race by Keim when he conveyed to Muhlenberg and Schwartz. We cannot distinguish this case in principle from Collam v. Hocker, 1 Rawle, 108. And having that as a rule laid down to us by the highest tribunal in the state, it is our and your duty to conform implicitly to its authority.</p> <p>“ Your verdict should he for the defendants.”</p> <p>Verdict and judgment for defendants, whereupon this writ of error was sued out, and in this court those parts of the charge printed in italics, as well as the answers to the second and subsequent points of the plaintiff, were assigned for error.</p>

This was a petition, ex relatione Henry Pbillippi, for a mandamus, to the Judges of the Court of Quarter Sessions of Lebanon county, to command them to appoint the relator constable of Washington township, Lebanon county, to which office he had been duly elected, upon the erection of the said township of Washington out of a portion of Bethel township, in said county, and to allow him to be sworn into office, or to show cause why a peremptory mandamus should not be issued,…

In error from the Common Pleas of Lebanon county. Case stated. Peffly, the plaintiff’s intestate, was a creditor of defendant for work done. The defendant was a creditor of Peffly also for work done to an amount exceeding the debt due to Peffly. Peffly’s estate was insolvent, and the question was, whether defendant could set off his claim against the claim by Peffly’s administrator. The court decided that he could.

<p>An action against a constable for an escape is not within the limitation of the act of 1772.</p> <p>And a prosecutrix for fornication and bastardy, committed with herself, may maintain the action for an escape of the defendant arrested under a warrant.</p>

In error from the Common Pleas of Dauphin county. This was an action on the case against the sheriff, for refusing a bid by the plaintiff, who was an execution creditor. It appeared that the sheriff, under the plaintiff’s execution, had levied on certain personal property, which was appraised under the act of 1842, and not bringing two-thirds of the valuation, a bond was given pursuant to that act.

In error from the Common Pleas of Dauphin county. On'the trial of an appeal from J. Lynch, Esq;, the question was, whether defendant had sustained his plea of former recovery. ■ He gave in evidence proceedings for the same cause before J. Walborn, Esq., commenced by summons returnable December 10th. The constable returned “that plaintiff did not want it served,” whereupon the cause was continued.

In error from the Common Pleas of Dauphin county. These were three cases argued together. In the first, it appeared that Novinger commenced proceedings before two justices, against Ayres and Armstrong, setting forth that they were his tenants under a lease which had expired. Ayres appealed, but her affidavit was defective, and the appeal was dismissed by the Common Pleas. She then sued out this writ of error.

<p>In error from the Court of Common Pleas of Dauphin county.</p> <p>Debt against Hale, who was co-obligor in a joint and several bond with Davis, a justice of' the peace of the borough of Harrisburg.</p> <p>The action was against Hale, the surety, who survived Davis, who had been elected a justice and given this bond under the act of 1839 : conditioned, “that if the said John Davis shall and do, during his continuance in the said office of justice of the peace, faithfully apply all moneys which shall come to his hands css an officer; then,” &c.</p> <p>At the trial, before Eldred, P. J., the plaintiff below gave in evidence the bond on which the action was brought, and also the docket of Davis (who ivas deceased), from which it appeared that a suit had been brought by Grady v. Grosh, commenced by summons, on a claim for $75, wherein defendants appeared and confessed. judgment for $117; and also an entry on the docket of a payment by defendant of $137.</p> <p>The defendant’s counsel contended that the justice had no jurisdiction of the case, the amount exceeding $100; and therefore, although the justice received the money and neglected to pay it over, his surety was not liable. The court were of opinion that the record showed that he received the money “as an officer,” and that his surety was liable, and so instructed the jury.</p> <p>The justice had no jurisdiction; and the parties must appear: King v. King, 1 Penn. Rep. 15-20; Camp v. Wood, 10 Watts, 118. The case of Commonwealth v. Kendig, 2 Barr, 448, does not apply. There the justice'had jurisdiction of the amount in controversy. The bail is not liable, where the justice received money merely as agent — not liable for money received on bond, before due: Wright’s Just. 733.</p> <p>The liability of bail of a justice of the peace, arose from the terms of his bond, and was not controlled by the jurisdiction of the justice. If he received the money colore officii, it was sufficient to fix the bail: Commonwealth v. Kendig, 2 Barr, 452. The justice had jurisdiction: lPike, 275. The justice could not be treated as the agent of Grady, as that would be an indictable offence: 14 S. & R. 158. Defendant voluntarily appeared before the justice; he cannot now question the judgment, nor can his sureties: Clark v. Worley, 7 S. & R. 349; Dechert’s Appeal, 5 W. & S. 342; Roth v. Miller, 15 S. & R. 100.</p>

In error from the Common Pleas of Daupbin county. Tbe question in this ejectment was, wbetber there had been a valid execution of a power given by will. The plaintiffs were some of the heirs of John Meetch. He died seised of land held in common with one Williamson, under a warrant. In 1823, he made his will.

In error from tbe Common Pleas of Dauphin County. Case. Tbe first count averred in substanc.e, that .defendant borrowed of plaintiff $700, and gave her bis note, payable in one ■ year, with interest.

This was a petition of review, in the Orphans’ Court, to open and surcharge an account settled by a deceased guardian. The petition set forth that in 1825 General Stanley, the guardian of the petitioner, had received $400 from her father’s estate, pursuant to the directions of the will, which sum was omitted from the account settled by him as guardian.

<p>In error from the Common Pleas of Dauphin county.</p> <p>This was an ejectment to recover about forty acres of land which the plaintiff, Richards, alleged was included within the lines of a survey made on his ancestor’s warrant; and the main question was on the admission of certain evidence to establish the existence of the lines marked on the land. The plaintiff claimed under a warrant issued in 1774, and surveyed by Galbraith, and returned in 1775. At the same time two tracts adjoining on either side were surveyed and returned. The northern, eastern, and western lines were found marked on the land, but the southern corners of the adjoining tracts were twenty perches further to the south than a measurement by the draft returned would allow. Between these two corners a line was discovered partially marked (the land having been chiefly cleared), which counted back to 1795, and which the plaintiff contended was his southern line.' The plaintiff had a patent issued in 1815.</p> <p>The defendant claimed under a warrant in 1814, surveyed in 1818, for the tract adjoining plaintiff’s to the south; but he alleged that his northern line was forty perches to- the north'of the line claimed by plaintiff as the division-line. It appeared that some time before 1795, one hundred and thirty-one warrants were delivered to Galbraith, deputy-surveyor, to survey. Of these, one hundred and thirteen had been surveyed and returned, which, in connexion with the evidence subsequently mentioned, showed that the southern line of the Richards and the two adjoining tracts, as now claimed by the plaintiff, had been laid down by Galbraith as the boundary of those tracts. And the plaintiff offered to read the field-notes of Galbraith made at the survey in 1795, and a con-, nected draft of the tracts then surveyed, to show that this boundary was surveyed and marked by him at that time as the boundary between the Richards tract and the tracts he then surveyed to the south of that. The admission of this evidence was the question. Carpenter, the great-grandson of Galbraith, said that he believed the field-notes to be in the handwriting of Galbraith (who died before the birth of witness), from comparison with entries in the family Bible, admitted to be his by all the family, and letters from him in possession of the family; that he received the field-notes and draft from Mr. Fisher four years before. Mr. Fisher said he received them in 1830 or thereabouts; that he was counsel for the heirs of .Galbraith, and the notes and draft were used as evidence in a controversy between thetíi and one Elder, before the board of property. Rehrer said he had been employed in the land-office for fifteen years, and, judging from the returns to warrants made by Galbraith, these papers were in his handwriting; that, warrants for one hundred and eighteen of the tracts upon the connected draft were filed in the office. Col. Crain said he had been forty years in the land-office; that he had never seen Galbraith write, but judging from returns in the office and letters from him, he believed the papers were in his handwriting.</p> <p>The defendant objected to the warrants for the tracts, contained in the connected draft, because they did not apply to the land in question; and to the field-notes and draft, because they were not official, but found in the possession of individuals, and not in the offices, and had never been returned to the land-office. The court permitted them to be read to the jury.</p> <p>It was proved that there was a line marked in 1813, which the defendant contended was the true boundary-line; and this question was left to the jury on the evidence.</p> <p>There was also evidence that plaintiff had pointed out to various persons the line now set up by defendant as his southern boundary; but there was no evidence of his having done so to defendant, before his purchase, or that he purchased on the faith of those representations. The court said this fact alone would not conclude him. ' -s</p> <p>Another point was made, which was answered affirmatively; the facts, however, being left to the jury. .</p> <p>on the admission of the evidence cited: 3 Yeates, 587; 6 S. & R. 221; 14 lb. 372; 8 lb. 392; 4 W. 247, 264; 1 Penn. Rep. 74; 2 lb. 384; 5 W. 223, 524; 1W. & S. 166; 5 Barr, 77; 4 W. & S. 348; 13 S. & R. 123; 6 Binn. 39; 4W. & S. 323; 4W. 263.</p> <p>5W. 209; 8 lb. 81, 103; 7 W. & S. 458; 2 Rawle, 141; 7S. &R. 312; 3W.466; 7 lb. 91; 1W.&S.6; 7W. 91; 1W. & S. 168; 4S. & R. 62; 2 Binn. 169; 5 S. &R. 215; 4 W. 261; 13 S. & R. 113; 2 Barr, 43.</p>

In error from the Common Pleas of Dauphin county. Trover for certain stoves received by Etter for plaintiff, and sold by him. The first question was the competency of Vanhorn as a witness for plaintiff.- It was proved that Bailey and Updegrove had recovered a judgment against Vanhorn and another; and that, upon their delivering the stoves now in question to Etter, as security or in satisfaction of the debt, Bailey had stayed further proceedings.

In error from the Common Pleas of Dauphin county. The evidence was simply this : That in July, 1839, Myers had been appointed collector of tolls for the commonwealth, and given bond. That on the 17th February, 1840, he had given the bond on which this action was brought, with Miller as surety, conditioned to account for and pay over all moneys received as tolls, &c. On the day of the date of the bond he received §384 from tolls.

<p>Under the act of Assembly, incorporating the Pennsylvania Railroad Co., which directs an inquest to be summoned by the sheriff for estimating the damages sustained by owners of land occupied by the railroad, who shall make a report to the court, which, when confirmed, judgment shall be entered: provided that if the report be not confirmed, and justice may seem to require it, a new inquisition may be awarded by the court; the court may set aside the proceeding for excess in the estimate of damages: and this court has the same power when the proceedings are brought up by certiorari, and in such case a procedendo will not be awarded.</p> <p>Under that act, which directs a precept to be issued to the sheriff, commanding him to summon a jury, it is irregular for the sheriff to select a jury from a list of names prepared by his deputy.</p>

<p>In error from the Common Pleas of Dauphin county.</p> <p>The plaintiff declared for an assault and battery, averring that defendant had knocked out two of plaintiff’s fore-teeth; and that by reason of the injuries inflicted he was confined to his bed for thirty days, and disfigured for life.</p> <p>Subsequently, be filed two additional counts, tbe first of wbicb was tbe same in substance as tbe original narr., and tbe second was for an assault and battery generally. Tbe defendant pleaded son assault demesne, and tbe plaintiff replied de injurié.</p> <p>On tbe trial, and before tbe plaintiff bad opened bis evidence, defendant required tbe court to compel tbe plaintiff to elect on wbicb count be would proceed; wbicb tbe court refused to do. Tbe defendant then offered to prove in mitigation of damages that be bad been prosecuted, convicted, and fined for tbe assault and battery; wbicb tbe court rejected. He also offered other evidence in mitigation, and also to show that tbe injuries allegéd in tbe narr. bad not been sustained; which tbe court rejected.</p> <p>Tbe court (Hepburn, P. J.) instructed tbe jury that tbe plea admitted tbe cause of action as set out in tbe narr.; and that if tbe justification failed, they bad nothing to do but assess tbe damages.</p> <p>In answer to defendant’s points be further said, that tbe matters of aggravation and tbe consequential damages and injuries averred, were admitted by tbe pleadings.</p>

<p>A decree discharging a guardian on settlement of his accounts and payment of the balance to the substituted guardian, with a release by him, is not a bar to petition of review. The payment contemplated in the act is a payment to the ward, after he has attained his majority.</p>

<p>Bail in an administration-bond is a competent witness for the administrator in an action brought by him.</p> <p>Where the question is whether the transfer of property has been obtained by fraud and undue influence, the acts of defendant, and Ms dealings and representations to defendant many years before the transfer, are competent proof.</p>

<p>A journeyman is not entitled to a lien for liis -work under the acts of 1836 or 1846.</p>

<p>A motion to quash, an appeal from the judgment of a justice of the peace, will not be entertained after the case has been referred to arbitrators, a trial had upon, the merits, and an award filed.</p>

<p>On. the trial of an issue of non est factum, the plaintiff cannot prove that defendant had parted with his property, with the avowed purpose of defeating the plaintiff’s claim.</p>

<p>In error from the Common Pleas of Dauphin county.</p> <p>The facts of the case are fully stated in the opinion of this court.</p>

In error from the Common Pleas of Dauphin county. The material facts of the case were these: A sci.-fa. issued on a mortgage by George Hassinger, reciting that he was bound to Woods in behalf of Landis and Susannah his wife, conditioned to pay 1661, as by the obligation would appear ; and the defeasance was conditioned that he should pay the said sum of 166?. on the day and time thereinbefore mentioned, according to the condition of the bond.

<p>Lien of unpaid purchase-money under an Orphans’ Court sale, the interest of which is payable to the widow of the decedent for her life, remainder to his heirs, is not discharged by a sheriff’s sale under a judgment against the purchaser: hence all prior liens are unaffected; but the arrearages of interest and of prior annuities are discharged.</p> <p>After judgment has been had xipon a mechanic’s claim, the want of a specification of the nature and kind of materials furnished, cannot be taken advantage of by creditors contesting the plaintiff’s right to participate in the proceeds of a sheriff’s sale.</p> <p>Where a mechanic’s claim is filed against a mansion-house, barn, wagon-house, &c., on one farm to which they are all appurtenant, and are intended to be occupied and used together, there is no necessity for an apportionment of the claim among the several buildings.</p> <p>A claim for materials, without specification of kind or quantity, is bad.</p>

<p>In error from the Common Pleas of Dauphin county.</p> <p>This was an action on the case for negligence, whereby the plaintiff’s arm was broken whilst he was travelling in a railroad car of the defendants’; and also for the loss of his baggage. The plaintiff declared for damages arising from the pain, loss of time, and expenses.</p> <p>The first exception was to the refusal of the court to permit the plaintiff to prove the number of his family dependent on him for support, a,nd that in consequence of the injury he had become embarrassed in his circumstances. There was no averment in the narr. of special damages on these grounds.</p> <p>The second, was for permitting defendants to show that immediately after the injury occurred, they had taken him to a hotel and procured surgical aid.</p> <p>It appeared that the accident occurred whilst the car was passing over a bridge, which was so narrow that the plaintiff’s hand lying outside of the car-window was caught by the bridge and his arm broken. The fifth exception was for permitting defendants to prove that during the journey warning had been given by their agent to a passenger named Long, of the danger of putting his feet or arms out of the window, and that he sat so near plaintiff that the warning must have been heard by him. It was also proved, that printed notices were put up in the cars warning passengers not to put them arms or heads outside the windows, and that, immediately before reaching the bridge, notice was given in a loud voice to the passengers to keep their heads and arms inside the car.</p> <p>With regard to the loss of the baggage, the evidence was, the defendants had placed placards in their office, and also printed on the tickets, one of which plaintiff purchased, a statement that all baggage was at the owner’s risk. The plaintiff’s baggage, for which the action was brought, was a carpet-bag. When he left the car he informed the agent it was a valise. The agent not finding it, the carpet-bag was carried on, but subsequently returned to plaintiff after this action ivas brought.</p> <p>Eldred, P. J., instructed the jury, that a carrier of passengers was bound to furnish suitable conveyances, such as, with due care and proper attention, would carry passengers safely, unless interrupted by some accident which no human wisdom could foresee. That he must give notice of approaching danger, or of the dangerous places on the route, if some are more dangerous than others. This notice must be full and complete to all persons who travel, whether learned or unlearned. The slightest negligence in any of these particulars makes him liable for all damages. That, in the present case, the presumption was, there had been negligence, and it was for defendants to show they had done everything in their power to relieve themselves, or that it resulted from the plaintiff’s negligence and folly. That a printed notice of the danger of passengers putting their hands out of the windows was not sufficient; but if they had given plaintiff sufficient warning as they approached the bridge, this would discharge them. That the care taken of the plaintiff by defendants after the accident, was no defence to the action.</p> <p>As to the loss of the baggage, he said the special contract limiting their liability would protect them if this were brought home to plaintiff, but even then, if there was any negligence, they would be liable.</p> <p>The plaintiff insisted the court should have charged that the defendants were bound to have cars so constructed that passengers could not put their hands or arms out.</p> <p>The exceptions to evidence, and the charge of the court, were assigned for error.</p>

<p>Viewers are not confined in the location of a street to the course suggested in the petition; nor are they or the court limited to the breadth of the street, as there prayed for.</p>

<p>In error from the Common Pleas of Dauphin county.</p> <p>Samuel Cochran by his will in 1816 devised the lands in question to be sold by his executors, William Cochran and another, and the proceeds to be divided among testator’s daughters.</p> <p>In 1828, the executors conveyed to Margaret Mitchell. In 1836, Margaret Mitchell appointed William Cochran her attorney, to farm the land for her.</p> <p>Whilst he was in possession of the land, judgment was qbtained against him.</p> <p>In 1840, Margaret Mitchell conveyed to William Mitchell. In 1842, a scire facias issued on the judgment against William Cochran, against his administrator, widow, and heirs, and with notice to the tenant in possession of the land in question. This writ was served on William Mitchell, who appeared and pleaded “ the judgment is no lien on the lands in his possession.” A verdict and judgment were obtained, and the land sold 'by the sheriff to the plaintiff below. At the sale, notice was given that it was not Cochran’s property. The purchaser brought this ejectment against William Mitchell.</p> <p>The court rejected the deeds from Samuel Cochran’s executors, and all the subsequent conveyances, and directed a verdict for plaintiff, reading as a charge the opinion in Minier v. Saltmarsh.</p> <p>The ground taken below was that defendant was concluded by the judgment on the seire facias. But a person in possession is only terre tenant so far as he has title from the original defendant. Any other title is independent. It is plain, if he could not set up his paramount or independent title, he would not be concluded. And that he could not, is decided in Catlin v. Robinson, 2 W. 373. It is also plain that he may have a title under the defendant, and an independent one. The former is bound, but not the latter, as was decided in Mitchell v. Kinzer, 5 Barr, 216. The rule in Minier v. Saltmarsh, is based on the rule that want of title in defendant is a bar to an execution on the land; but this is not so here: Jarrett v. Tomlinson, 3 W. & S. 114. Hence, as no defence could have been legally made by Mitchell to the revival of the judgment on the ground of this title, it would be strange if he is concluded thereby.</p> <p>The point was settled in Minier v. Saltmarsh, 5 W. 293; Heller v. Jones, 4 Binn. 61; Hines v. Jacobs, 1 Penn. Rep. 152; Kiehner v. Dengler, 1 W. 424.</p>

<p>In error from the Common Pleas of Dauphin county.</p> <p>Assumpsit on a guaranty by defendant, of a note drawn by Hutton to the plaintiff’s wife, before marriage.</p> <p>The defendant Hutton was discharged as a bankrupt, and the dividend declared by his estate credited on this claim.</p> <p>The first point was, whether Hutton was a competent witness for defendant. The court rejected him.</p> <p>2. There was evidence that there were some unsettled matters of his estate not collected by the assignee; the extent of which the witness could not prove.</p> <p>The court (Hepburn, P. J.) instructed the jury that the fact of a small balance of the bankrupt’s remaining, would not discharge the defendant from his guaranty.</p> <p>This point in the charge, and the rejection of the witness, were assigned for error.</p>

In error from the Common. Pleas of Dauphin county. Replevin for a carriage. It appeared that Fitch, who was a livery-stable keeper, owned two black carriages, and that Dannels, who was also a livery-stable keeper, owned two yellow carriages. For mutual accommodation, they made a temporary exchange: Dannels taking a black carriage, and Fitch a yellow one.

In error from the Common Pleas of Centre county. Special verdict in ejectment.

In error from the Common Pleas of Centre county. Weaver, being the owner of a mill and tavern, constructed a pipe to convey water to the latter through his own land. While this easement was in use he conveyed the tavern to Bottorf. Weaver then conveyed the mill property to Irvin, without a reservation of this easement. ' At the time of this conveyance Irvin had no notice of the easemént, nor was the pipe used for the purpose for which it was constructed.

<p>In error from the Common Pleas of Dauphin county.</p> <p>This was an action on a guaranty by defendant “of John Smull’s notes, payable to John Eckel, for $304.”</p> <p>The plaintiff proved two notes drawn by Smull to the order of John Snevily, of the same date with the guaranty, and in the aggregate amounting to $304. He then gave evidence that they were transferred to' plaintiff, and that defendant had admitted he had guarantied these notes.</p> <p>The court refused to permit the plaintiff to read the notes to the jury, and this was the error assigned.</p> <p>The question is one of identity. If the notes were those referred to, they are payable to Eckel, since he was the holder, 1 W. & S. 208; 3 lb. 272.</p>

<p>In error from the Common Pleas of Wyoming county.</p> <p>July —. The plaintiff below had the legal title under a warrant in 1803. The defendants claimed by adverse possession, commenced by Daily, of a part of the land within the lines of plaintiff’s survey. Daily had entered in 1801 on adjoining land, without colour of title — and had erected buildings and cleared some land, his clearing and acts of ownership extending over the line of plaintiff’s survey. It appeared that Daily had not marked the lines of his claim, but that he made claim up to certain known lines. In 1816, Daily having title to the adjoining tract, sold that and his right of occupancy in plaintiff’s tract to Fitch, the defendant. The question was, whether Fitch could set up adverse possession to so much of the land as lay within plaintiff’s lines — his dwelling-house not being within those lines, and there being no marked lines to define his claim.</p> <p>The court in their charge to the jury said: — ■</p> <p>There is evidence that Daily, while in possession, claimed to the town line and the swamp, which would embrace the land now demanded. There is evidence also that Fitch, while in possession, claimed to the same extent. There is also evidence that Daily and Fitch cut wood upon the unimproved land. There is no evidence of any line or boundary made by either Daily or Fitch, to define the extent of their claim, nor is there any colour of title shown by either of them, defining the extent of their claims. Daily cleared over his lines without colour of title. If he 'transferred any interest beyond the deed, the extent was undefined. There has never been an actual residence on the land.</p> <p>In this case there was no colour of title which defined the extent of the claim, either of Daily or Fitch. There was no residence on the lands, and no survey or location of any claim by which the lines were defined. It is therefore the case of a man in possession of his own land, under title, who clears over his line a few acres upon his neighbour’s land. The land actually occupied for twenty-one years, is all which can be held in such a case. In such case, the owner being in the constructive possession of the land, is ousted of no more than is in the actual adverse possession of the person who clears over.</p> <p>Daily was an intruder, but did not Fitch enter under colour of title ? if he did, then his right to hold under the statute, is coextensive with the purchase from Daily,, whose possession on the Wonder tract was well defined by known boundaries, and covered all that part in controversy: it was said in McCall v. Neely, 3 Watts, 72, that “an entry is by colour of title when it is made under a bond fide and not pretended claim to a title existing in another;” “to give colour of title would not seem to require the aid of a written conveyance.” “An .occupant who has entered by colourable title, for purposes of residence or cultivation, is in adverse and exclusive possession of all the lands within his survey:” Seigle v. Louderbaugh, 5Barr, 490. We claim to have paid all the assessed taxes since our possession began: this is in part denied, but there was neither proof or allegation that the plaintiff had paid any. Our payment of taxes and purchase of Daily, clearly gave us colour of title, and the omission by the plaintiff to pay the taxes, while he knew us in possession for upwards of forty years, was conclusive of abandonment upon his part: Kite v. Brown, 5 Barr, 294; Waggoner v. Hastings, 5 Barr, 303. Constructive possession of ownership gives way to occupancy of a part, with colourable claim to the whole.</p> <p>A non-resident disseisor may hold more than that actually occupied : Porter v. Me Ginnis, 1 Barr, 416. Residence and payment of taxes are not necessary parts to an occupant’s title who claims by possession and designation of boundaries; this ease is not in any way affected by the principles asserted in the charge; and to this point the authorities are full: Royer v. Benlow, 10 S. & R. 308; Criswell v. Altemus, 7 Watts, 580, 581; McCall v. Coover, 4 W. & S. 162; Sorber v. Willing, 10 Watts, 142; Cluggage v. Duncan, 1 S. & R. 118; Johnston v. Irwin, 3 S. & R. 292; McCall v. Neely, 3 Watts, 72. The designation of boundaries was sufficient: Hockenbury v. Snyder, 2 W. &. S. 251. We were entitled to go to the jury upon the questions, Whether we had not entered by colour of title; and, secondly, Whether we had not been in the actual, adverse, and continued possession of the lands demanded for twenty-one years before suit brought. The facts most clearly show that it was not the case of a mere clearing over his lines by the owner, but it was a hostile entry as early as 1801, and held openly and notoriously and without molestation for forty-four years; and although the plaintiff was aware of it during all such time, he neither asserted his claim by suit, or by payment of the taxes; it is a stale claim, and now only made, since the labour and money of the defendants have given value to the lands by clearing and improvement. By the evidence, and upon the authorities cited, we say the plaintiff was ousted of all the lands claimed in his writ — and as to this we were entitled to go to the jury, free from the doctrines contained in those parts of the charge of which we complain.</p>

<p>A. purchased land, and gave his bonds and mortgage to secure the purchase-money. He thep, by deed declared that he had received the conveyance for B. B. by his will recited the purchase by A., and that the purchase-money paid had been advanced by himself — and directed his executors to pay the residue of the purchase-money. He further directed, that after payment of his debts, his estate, including the land purchased by A., should be valued and divided among his children — and for the purpose of paying his debts he authorized his executors to sell his real estate, excepting his mansion-farm; and he further directed his executors to sell his mansion-farm after the death of his wife, and divide the proceeds among his children. Actions were brought against A. on his bonds and the mortgage, and the land sold by the sheriff to the devisees of the vendor. Thirty-two years after the death of A., his administrator sold the mansion-farm. The vendor has no claim on the proceeds of this sale, for his contract was with A. only — and he had no claim on B., nor do the directions in the will give him a right to sue, especially after having by the sheriff’s sale prevented the land passing by the will. 2. If he had a claim, it existed at the death of B., and the want of an action against his estate within seven years, bars the remedy against the real estate. 3. Nor is there any trust created for the payment of this claim by the will — the power being only to sell for distribution. 4. And the presumption of satisfaction as to B. from lapse of time is not rebutted by the proceedings against A. on his bonds and mortgage, although the devisees of B. were summoned as terre tenants.</p> <p>Nor has the vendor such a claim that he may compel the administrator to give security for the application of the purchase-money of lands remaining unsold, which may be sold for payment of debts under the power in the will.</p> <p>[t seems that a direction to sell for the purpose of distribution does not exclude the land from the proviso in the act of Assembly discharging lands from debts unless an action has been commenced within seven years.</p>

<p>In error from the Common Pleas of Wayne county.</p> <p>July 10. This was an action of account render by the administrator of Hannah Bush. The first count alleged that the defendants were bailiffs; the second, that there was a tenancy in common, and the defendants received the profits as her bailiffs; the third alleged that she was seised of an undivided third, the profits of which were received by defendants as bailiffs.</p> <p>The case was this: — In 1826, S. Bush, the husband of the plaintiff’s intestate, devised all his real estate to her during widowhood.</p> <p>In 1888 he executed a deed conveying to one of the defendants certain land, in consideration of $1,000, and the agreement of the grantee to support and maintain the grantor and his wife during one-half of their joint lives.</p> <p>A similar deed was made to the other defendant.</p> <p>These deeds purported to be the deeds of the plaintiff’s intestate, as wife of the grantor. But she had never sealed them, and the acknowledgments were defective.</p> <p>After the death of her husband the widow continued to be maintained by the grantees for some time, when she left them and resided with her other children.</p>

<p>íhe addition of subscribing witnesses to a sealed instrument, without the consent of one of the parties, avoids it as to Mm. And the subsequent ratification, by such party, of the subscription by one only of the witnesses, does not cure the defect.</p>

<p>In error from the Common Pleas of Wyoming county.</p> <p>July 11. There were two cases argued together, being writs of scire facias on mortgages. The first question was, whether the court was right in entering judgment for plaintiff on the plea of nul tiel record, the defendant alleging a variance between the mortgage and the scire facias. 2. The court admitted the declarations of a terre tenant and of the mortgagor that the debt was due, to rebut the presumption of payment from the lapse of twenty-one years. 3. The court admitted the plaintiff’s counsel as a witness for him.</p> <p>In the second case there was evidence that the mortgagor had admitted that the debt was unpaid, more than twenty-one years having elapsed since the execution of the mortgage. But there being no evidence when the terre tenants acquired title, the court told the jury this admission rebutted the presumption of payment.</p>

In error from tbe Common Pleas of Wayne county. July 11. This was a qui tarn action to recover tbe penalty for tbe obstruction of a road. It appeared that a road bad been laid out by viewers, and approved by tbe court, but not opened throughout tbe whole course. Tbe defendant cut a mill-race across a part of tbe road which had been opened — and tbe supervisor having attempted to build a bridge across it, was opposed by defendant and this action brought.

In error from the Common Pleas of McKean county. July 11. Case for cutting timber. It appeared that Keating had agreed to give a contract for land to Barnaby and Upton, upon their making certain improvements, and by the articles they were to pay for the land in annual instalments. It was further agreed that no timber should be taken off the land unless the payments were made in advance. Barnaby and Upton entered, made the improvements, and paid part of the price.