Volume 8 — Sergeant & Rawle's Pennsylvania Reports

<p>In Error.</p> <p>ERROR to the District Court for the city and county of Philadelphia. ' ‘</p> <p>An award of referees was made and returned in the Court below, in favour of Christopher Freeman against William Herman for the sum of 131 dollars, under the following submission, which appeared in the docket entries returned with the record.</p> <p>“ Amicable action, entered by agreement filed, June 3d, 1819. It is agreed, that all matters invariance, between Christopher Freeman and William Herman, be referred to Sylvester Roberts, Benjamin Martin, and Joshua Ray bold: they or a majority of them, shall make an award under their hands and seals, under a.rule, under the Act of 1705, which makes an award of referees as binding as a verdict of a jury.”</p> <p>The defendant filed the following exceptions to the award in the Court below.</p> <p>1. The ageement filed, does not authorise the entry of an action.</p> <p>2. There was no subscribing witness to the agreement, nor any affidavit exhibited to the prothonatory, that it was duly executed. ■</p> <p>3. It does not appear what was the nature of the action, when or where the referees were to meet, nor what notice was to be given.</p> <p>4. The award is not according to the submission.</p> <p>5. The defendant had no notice of the meeting of the 18th of June.</p> <p>6. The plaintiff’s cause of action was an unsettled partnership account between the plaintiff and defendant.</p> <p>The Court below overruled these exceptions, and entered judgment on the award in favour of the plaintiff.</p> <p>suggested diminution, in the original agreement, not being sent up with the record. A certiorari issued, and it was returned, that no such paper was to be found ; whereupon,</p> <p>It did not appear that the parties agreed to enter this action in the District Court, of in any Court, and there must be a suit depending, to justify a reference under the Act of 1705. Nor does it appear whether the cause of action for which the suit' was brought, was case, debt, ejectment or otherwise.</p> <p>that the agreement to refer under the Act of 1705, authorised the entry of an action : and that where all matters in variance are referred, it is unnecessary to specify any form of action. They cited Massey v. Thomas, 6 Binn. 333.</p>

<p>One, being íwidowfwiio had an estate of her own, consisting of shop goods and outstanding debts, and household furniture and effects, ■which had belonged to her former husband, entered into articles, by which it- was agreed, that she should enjoy all the property she then possessed, or might afterwards acquire, as her separate estate, with power to dispose of it as she pleased, in her life time, or by last will; and iu case of her making no disposition of it by will or otherwise, it was to be equally divided among all her children by her first husband. There was no inventory of the goods or outstanding debts, but it was agreed that the amount or value of the goods, chattels, wares, merchandises, and debts then due or to become due to the said widow was 4000 dollars. The marriage took place, and the husband- was appointed guardian of the infant children of his wife by her first husband, and was in possession of the whole of his wife’s property, subject to her right to dispose of it: and she did dispose of part of it, in her life time. Held., that on the settlement of his accounts with his wards,' the guardian was not chargeable with the whole amount at which her separate estate was agreed to be valued, but only with the balance remaining in his hands, after deducting the amount of payments, made by order of his wife, from the gross amount of receipts.</p> <p>In stating his account with his wife’s separate estate, he charged himself with 6i Sundries had for my children, 330 dollars, 66 cents.” He afterwards paid his wife a sum of money with which he credited himself thus, “ By cash paid Mrs. R. for sundries had on account of my children, 310-dolIars.” The credit was allowed.</p> <p>It is the duty of a guardian to keep a separate account with each of his wards, and it is no justification for him, that he suffered household goods, &c., which ought to have been distributed equally among all the children, to go into the possession of some ot the family. But the Court refused the appellants interest on the value of furniture, books, plate, &c. from the time qf their mother’s death, when they were entitled to receive them.</p> <p>Where money is in.the hands of a guardian, which has been used by himself, or which might ’ have been put o,ut to interest, but for his negligence, he is chargeable with interest. But he is allowed to keep a reasonable sum on hand for contingencies, and also a reasonable time to put out the surplus.</p>

<p>, A confer Miifaf stratov is auadmistp°t*h° iwioimt</p> <p>gee in a joint bond,Appoint one of the admimstrators, ofoneobiigor* to be one of’ hisf‘nvnt®xe" debt is paid, a?1!tl,e vivmg obligor discharged. saro-'where'2 ^®'*11?®®*" bis lib- time, obtains severepresentadeceased ob.</p>

<p>In Error.</p> <p>THIS was an action of trespass on the case, brought in the District Court for the city and county of Philadelphia, by ' “ # Hugh Barr, the defendant in error, against the plaintiff in errori George Hornketh, for debauching his minor daughter, per quod servitium amisit.</p> <p>On the trial, it was proved, that the plaintiff below resided m Northampton county, and that his daughter, about eleven s'ncei came, with his consent, to Philadelphia, to reside W*t^1 a marrle<^ sister, with whom she remained until the year 1815, when she returned to her father, and continued vvit^ him a year. She then went again to Philadelphia, with her father’s consent, and lived occasionally at service, under an engagement for wages. After her return from the country, a young brother also came to reside with the married sister, who received from their father, when he came to town, such articles of provisions and household furniture, as his circumstances enabled him to bestow. The seduction and confinement of the plaintiff’s daughter, took place in Philadelphia, before she attained the age of twenty-one years.</p> <p>Upon these facts, the following charge was delivered to the jury by</p> <p>M‘K.ean J. — The form of action may be trespass or case. If trespass be brought, some actual or constructive trespass must be stated and proved. But the slightest technical trespass is sufficient to maintain the action, — as the mere entry on the premises of the plaintiff without permission. The seduction and loss of service are considered as consequential to it. But damages may be given, not for the trespass merely, but for the injury done by the seduction of the child.</p> <p>■ If case be brought, the action is founded on the loss of service merely. The daughter is considered as the servant of the father. If the child be above twenty-one, it has been held, that some evidence of service must be given, — but any the least act of service, is held to be sufficient. If the child be under twenty-one, as the parent is entitled to her service, no act of service need be proved, if seduced while living With the father; but if not living with the father, or under his immediate control, it.was thought by some that the action could not be sustained, because the relation of 'master and servant did. not exist.</p> <p>The law hjd not expressly given a remedy, or provided a punishment for the wrong done to the parent by the seduction of his child. This form of action was adopted and encouraged by the Courts, founded and sustained on technical notions of the relation of master and servant, and the actual or supposed loss of the service of the child. I consider it now as a mere technical form of action to recover for the loss ©f service, but in substance to recover damages for the injury to the honour, the comfort, and the happiness of the parent. If the child was above twenty-one at the time of the seduction, to sustain the action, it is now necessary to shew some act of service, though trifling; but if the child be under twenty-one, it is not necessary to prove any act of service. The father is bound to maintain his.minor,child, and he is-entitled to and mav command her services.</p> <p>It is contended that as the child in this case did not live with her father, he could not lose by the want of her services. We may answer that the father could command the services of his child at any time. Therefore during her pregnancy and confinement, he lost, because he could not have had her services, if he had required them.</p> <p>The father was entitled to the wages she earned ; and if he permitted her to use the wages to clothe herself, the appropriation was for his benefit, as,he must otherwise have clothed her; and by her inability to labour, he lost the benefit of her services. But I put the loss of service out of the question. The loss of service in general would be very small, — in this case not more than' seven or eight dollars. I consider the action now substantially, an action by the father, to recover damages for debauching his minor daughter; and I hold that it is not necessary, the child should actually reside with the father, if she resides elsewhere, with, or not against his consent.</p> <p>A child, at a boarding school, — residing with a friend to be educated, — or on a visit, — or at service, is still subject to the control of the parent, and under his protection and care.</p> <p>Whether she resides under her father’s roof or abroad, the destruction of the family’s honour and the parent’s peace, is still the same. The crime is a great one, and every parent must know and feel that he would consider it so, if such an occurrence should happen in his family.</p> <p>In this case the child did not live in the house of her father : the reason assigned is, that her father had married a second wife, and that the stepmother did not use the children by the first wife well; that the father was therefore obliged to place his children elsewhere; and he placed this daughter with her elder and married sister ; — perhaps the most proper place.</p> <p>To this charge the counsel for the defendant tendered a bill of exceptions, and the verdict being for the plaintiff, a writ of error was sued out.</p> <p>that the father could not maintain an action, for an injury to his child, per quod servitium, amisit, without proof of actual service. Where the child resides permanently with another, the suit should be brought by the person with whom the child resides; who in the present case was the sister. In support of his argument, he referred to Grey v. Jefferies, Cro. El. 55. Barham v. Dennis, Cro. El. 769, 770. Robert Money’s Case, 9 Co. 113. Norton v. Jason, Style, 398. Russell v. Corne, 2 Lord Ray. 1032. 6 Mod. 127, S. C. Postlethwaite v. Parkes, 3 Burr. 1878. Peak's Ev. 333, 334. Esp. N. P. 645. 1 Bac. Ab. 87. 4 Bac. Ab. 593. 3 Selw. N. P. 967, 969.</p> <p>relied on Reeve's Dom. Rel. 291. 1 Bl. Com. 446, 447. 3. Serg. & Rawle, 218. Foster v. Scoffield, 1 Johns. 297. Martin v. Payne, 9 Johns. 387. Nickelson v. Stryker, 10 Johns. 115. 1 Woodis. 452. Logan v. Murray, 6 Serg. & Rawle, 175. Norris v. Baker, 1 Roll’s Rep. 393. Hunt v. Wotton, T. Ray, 259. 2 Com. on Cont. 354.</p>

In Error. ERROR to the Court of Common Pleas of Delaware county, in a suit brought by Samuel Newlin the plaintiff below, and defendant in error, against Nathaniel Newlin, the defendant below. • On the trial of the cause in the Court below, the dant offered in evidence a deposition taken under a rule of Court on the 23d March, 1820, before a Justice of the Peace of Chester county; and proved that notice of the time and place of taking the deposition had been served on William…

<p>Bequest of tate to the tesíf^^her cease to he tween herand The estate, death,tsTobe J^d^are*™ alike,percasisters of living at his’ such brothers were dead,138 the father</p> <p>Such becoustVued af wor(i in it.</p>

THIS was an indictment found in the Mayor’s Court J of the city of Philadelphia, against Israel Deacon, keeper of the prison of Philadelphia, and removed to this Court by certiorari. Held: that common report will not justify a Judge ia issuing a warrant. 3 Binn. 38. At all events, if the constable can commit, he should do it in writing, so that the ground of it may be distinctly stated.

<p>Indictment.</p> <p>THIS case was argued by Sykes and Tilghman, for the Commonwealth, and Purdon, C. J. Ingersoll, and Hopkinson, for the defendant.</p>

^ NARR. in assumpsit for goods sold and delivered by the plaintiff, Thomas Wilson, to the defendant’s testator, Plea non assumpsit.

<p>Case Stated.</p> <p>HUGH TEARNEY, the defendant in the above case, commenced a building on a lot in Walnut street on the 19th October, 1812, and finished it in August, 1814. Alexander ' o ' Napier, who did stone cutters work on the building, on the ^^ March, 1814, took a bond and warrant of attorney from the defendant, conditioned for the payment of 280 dollars, ... . . 1 J 7 (the amount of his bill,) within one year from the daté of his bond. On the 31st March, 1814, a judgment was entered in the District Court for the city and county of Philadelphia, on this bond, which was assigned to the plaintiff. No claim was ever pled, or suit brought on the original account. On the 15th February, 1814, the. said Hugh Tearney mortgaged the above premises (inter alia,) to Jacob Franks and others, surviving executors of George Schlosser, deceased. This mortgage was recorded on the 19th February, 1814, and assigned to Anna Maria Esler on the 1st February, 1818. The property was sold by the Sheriff' of the city and county of Philadelphia on the 20th April, 1818.</p> <p>The question was, whether taking a bond and entering a judgment on it, is a claim filed, or suit commenced within the meaning of the Act of Assembly, relative to mechanic’s liens ?</p>

<p>RULE on the plaintiffs to shew their cause of action, and why the defendants, who had been arrested on a capias J ... should not be discharged on common bail.</p> <p>The plaintiffs produced an affidavit of John Walker, one of the plaintiffs, who were the assignees of the defendantst0 under a commission of bankruptcy in England. The action was for money received by the defendants, for the use of the plaintiffs. The affidavit was made before J. Norris, a justice of the peace of the county of Lancaster, England, and was accompanied by a certificate of a notary public of Manchester, in the county of Lancaster, that Norris was a justice, Scc.*</p>

<p>The clerk <jf the Quarter Sessions is not entitled to a fee of eighteen and three-quarter cents for each certificate given to a witness for the Commonwealth, of his attendance on an indictment on which the county is to pay tne costs, when such certificate is not given at request of the County Commissioners, though they refuse to pay the witnesses without it.</p>

<p>On the 11th of July, 1817, P. fcf B. borrowed of the Insurance Company of Pennsylvania 5000 dollars on respondentia, ou a voyage to Batavia, and back to Philadelphia.</p> <p>The ship performed her voyage, and returned to Philadelphia with a cargo of coffee, consigned to the president of the Company. On the 29th of January, 1818, B., without the knowledge of his partner, drew an order on the Company', to pay the proceeds of the shipment to K\ & Cdeducting the debt due on respondentia and the premium of insurance. On the 2nd of February, 1818, the partnership of P. & B. was dissolved, and P. authorised to close the business of the house. About the 18th of May, 1818, P. entered into a negociation with the president of the Company, when it was verbally agreed that the coffee should be delivered toP., he paying the respondentia debt and interest, and also ten shillings in the pound on three notes drawn by P- & Band held by the company. On the 14th-of May, 1818, P. (for P. & B.J consigned to S. all the interest of the house in the coffee which was in the possession of the Company. Op the same day,P. tendered to the president of the Company the respondentia debt and interest, and also ten shillings in the pound on the said three notes ; .but the president refused to receive the money or to deliver the coffee, because the directors of the Company refused to ratify his verbal agreement. On the 25th May,1818, S. (who was the son-in-law of P.) tendered to the president, the respondentia debt and interest, but not the ten shillings in the pound on the three notes; but the money was refused. Some time afterwards, the Company sold the coffee, by virtue of a power in the respondentia contract. The Company brought suit on the three notes to July Term, 1818, in this Court. The case was arbitrated, and P. insisted, before the arbitrators, on the agreement to take ten shillings in the pound; and iS. was examined to prove the tender made in pursuance of the agreement. The Company demanded the full amount of the notes; but the arbitrators decided against them, and the Company did not appeal. S-, in his evidence before the arbitrators, did not mention the assignment of the coffee to him; nor did it appear, that, at that time, the Company had any notice of it, unless it might b^ implied from the tender of the respondentia debt made by S- P. compromised the claim of ÁT. & C. An action of trover was then commenced for the coffee, in the'name of P. & B., against the Company, which was originally marked for the use ofP./ but an entry was afterwards made on the docket, that it was for the use of S. Held, That under the circumstances of the case, the defendants might, in equity, set off the judgment obtained against P. £s? Bon the three notes above mentioned.</p>

<p>THIS action was entered by agreement, and the following case submitted to the Court for their opinion.</p> <p>Joshua Byron, of the county of Philadelphia, by his last will and testament, dated March 2d, 1819, after directing his executors, the defendants,- to sell and dispose of such real and personal property as he should die possessed of, and the discharge of his just debts, and bequeathing various, legacíes to different members of his family, says : — I give to Elizabeth Byron and her heirs, daughter of my brother William Byron, deceased, five hundred pounds. She is married, and her name, I believe, is Elizabeth Dickinson.” The testator died on the 19th of April, 1819. Elizabeth Dickinson, formerly Elizabeth Byron, died on the 23d March, 1819, leaving a husband, the plaintiff, and several children surviving her.</p> <p>The question’ for the opinion of the Court was, whether the above mentioned legacy was lapsed.</p> <p>was stoppéd by tbe Court. .</p>

THIS was a habeas corpus directed to the defendant, the keeper of the prison of Philadelphia, to bring up the bodies of Norton, Roosewelt and Eddy. By the return it appeared, that the defendants were indicted for forgery, and tried in the Mayor’s Court of- the city of Philadelphia. . ..... ,, . Phere were sixteen counts m the indictment, and-the jury ^ound the defendants not guilty on nine counts, and said no. thing as to the residue.

TIIIS was a spetial action on the case, brought by Benjamin R. Morgan and John C. Smith, assignees of Robert Wain, against the Bank of North America, to recover damages for refusing to permit a… Held: that the clear balance 'only was to be divided among them, as partners.

. * - ACTION on the case for disturbing the plaintiff's right way ™ an alley running in a southern direction from the side of Walnut street in the city of Philadelphia. The title of the plaintiff was as follows.

THIS was an action on a policy of insurance on the ship Qn the 05th September, , Amiable, Erickson, master, u at and from Philadelphia to Cork, and… Held: that the written order for insurance controls the policy. Norris v. The Insurance Company of North America, 3 Yeates, 91. The defendants have said, that in their understanding, Grass Island was Limerick. As to the word at, it was not inserted with respect to Cork ; and yet it is conceded that the ship was covered at Cork.

<p>i)y or„ to take dian corn on freight from Philadelphia Partcf°he flour belonged at|g^¿dtheremamder to each párate funds, a¡fpamelnsurance on his own interest in the flour. The whole of the shipment was consigned to C. in Lisbon, and the whole appeared as his property, for the purpose of protecting it from British cruisers. Had the vessel arrived at Lisbon, the whole of the flour was to have been sold by the consignee, and the nett proceeds of Jl’s interest remitted, on his account, to Ills correspondent in London. Held, That and C. were partners, and individually liable for the whole amount of a general average due upon the flour. .</p> <p>Interest, upon the amount of a contribution for general average, runs from the time ffte money was advanced upon which the average arose.</p>

<p>, ON the 23d May, 1809, Godfrey Smith and Henry K. Helmuth, (joint merchants, trading under the firm of Smith Helmuth,) together with Henry C. Helmuth, the father of sa^ Henry K. Helmuth, and John Frederick Smith, the father of the said Godfrey Smith, became bound jointly and severally to the plaintiff, in a bond, in the penalty of 14,000 dollars, conditioned for the payment of 7,000 dollars, by the * * 7 » j said Godfrey Smith and Henry K. Helmuth, on the 23d May, 1810, with interest from the date. Smith Es? Helmuth were the principals, and their fathers sureties, as appeared on the face of the bond. On the 10th May, 1812, f.,F. Smith died, and the defendants were his surviving executors. On the 3d March, 1814. Godfrey Smith died, and the defendants administered on his estate. The interest on the bond was regularly paid by Smith & Helmuth, during the life of Godfrey Smith, and afterhis death by his surviving'partner, Helmuth, down to the 23d May, 1819 ; and on the 23d June, IB 15', the said surviving partner paid 3,800 dollars in part of the principal. This action was commenced on the 6th June, 1820. Soon after the death of Godfrey Smith, his administrators inserted an advertisement in the newspapers, desiring all persons who had demands against the éstate, to present them to the administrators. Whether the plaintiff knew of this advertisement, there was no evidence, but it did not appear that he had demanded payment of his bond from the. administrators. If payment had been demanded, there were assets in the hands of the administrators to pay at least a part of the plaintiff’s debt. It was proved by the oath of John Long, that the'-plaintiff told him, that Frederick Smith, one of. the defendants, had come to him at his stall in the market, (the plaintiff was a butcher,) and told him he should call on Henry K. Helmuth and demand the money or ask, the money. This was after the death of the testator, J. F. Smith, but the witness could not fix the time. Henry K. Helmuth, the surving partner, continued to pay his bank engagements down to the year 1817, when his credit failed. What his real situation was prior to the year 1817, did not appear with certainty. He was' examined as a witness, and swore that by the assistance of his friends, he discharged his bank engagement's, but declined answering questions which-led to a complete disclosure of his affairs. Under these circumstances, the defendants contended on the trial, which took place on the 9th March, 1822, before Judge Duncan, that they were discharged from the bond. The jury found a verdict for the plaintiff for 3741 dollars 34 cents, subject, to the opinion of the Court on the evidence.</p>

<p>The master the shipfor hu wages, unless it be so expressly agreed.</p> <p>A mortgagee of a ship at sea does not, merely by delivery of the documents, acquire such a pos= session, as to be liable to the master for wages accruing after the date of the mortgage.</p>

<p>In Error.</p> <p>ERROR to the District Court for the city and county of</p>

In ERROR. ERROR to the District Court for the city and county Gf Philadelphia. This action was brought against Sarah Billington, Thomas. Billington, Guy Bryan, and Robert Kid, on an adminis4 tration bond. Sarah. Billington and Thomas Billington, who were both dead, were the administrators of Thomas Billing-ton the elder, and Bryan and Kid were their sureties.

In ERROR. ERROR to the Court,of Common Pleas of Philadelphia county. This case came into the Court of Common Pleas by appeal from' ¿judgment rendered by an alderman, in favour of Robert Parish, plaintiff below, against Joseph Langer. The summons was issued by the alderman on the 1st and was returnable the 6th May, 1820, and judgment was rendered on the 8th.

RULE to shew cause why an information in nature J . , a quo warranto, should not be filed against the defendant, to shew by what authority he receives, or claims the right receive, the duties laid on retailers of foreign merchandise, - , . , , , . , , by the Act of Assembly in such case made and provided,

<p>dentki bomban the form gene-Philadelphia {for-which see the case,) the payment of the debt and murine interest, depends upon the sate regoodsfand the ahip*1*4 °* Therefore, if recei\°es°hisr goods uninther'véssei"0" payls lloantl t0</p> <p>An utter ship, within ofstmíTa'con tract, is not a loM.'bmVn1*1</p> <p>dentia bond, insurance on°^ the goods, as</p>

<p>f. Jua§e.is not bound to give an opilaw" onMV 6 facts of the whole case 5 and jfhe do so, and direct the jury that their herftraShar'd ticuiar party, at is error.</p>

RULE to shew cause why a mandamus shodld not issue, commanding the defendants to draw an order in favour of Joseph B. Norbury, esq. late Prothonotary of the Court 0f Common Pleas of Philadelphia county, for four dollars, for fees claimed by him as Prothonotary, in the case of The Com. monwealth for the.use of the Commissioners of Philadelphia County v. Joseph Conover. ' In the year 1818, Mr. Norbury was commissioned Pro- ' thonotary of the Court of Common Pleas of…

In Error. ERROR to Dauphin county. The plaintiff below, the defendant in error, brought an action against the plaintiffs in error, Jacob and Andrew Guhr, which was submitted to arbitration, under the Act of 20th March, 1810. An award was filed in favour of the plaintiff, and Jacob Guhr, one of the defendants, gave security and entered an appeal. The plaintiff filed a statement against both defendants, to which both pleaded.

<p>In Error.</p> <p>THIS action was brought by the plaintiff in error, in the Court of Common Pleas of Lancaster county, against the defendant in error, for criminal conversation with the plaintiff’s wife. Several bills of exceptions were taken to the °pinion of the Court, in refusing to admit testimony offered by the plaintiff in proof of the marriage, the only material one which,was founded on the rejection of evidence of declarations 7 ° by the defendant, that he knew Susannah Forney was ried to the plaintiff, and that with full knowledge of that fact, he seduced her affections, and debauched her ; that he lived with her in a state of adultery, and begat her child, which child was born alive.</p> <p>The confession of a party without oath, is evidence, because in its nature, nothing is more satisfactory. Longenecker v. Hyde, 6 Binn. 1. This rule hás been considered, upon the authority of Morris v. Miller, 4 Burr. 2057, as not extending to an action for adultery. The decision in that case was, that a marriage in fact must be proved, and that acknowledgment, co-habitation and reputation, were not sujp,dent to maintain the action. Lord Mansfield would not define what might or might not be evidence of a marriage in fact; and surely an explicit confession, is strong evidence of a marriage, though perhaps not sufficient,'alone, to support the action. If, however, by the law of England, as deduced from the case of Morris v. Miller, such evidence cannot be received, the state of society in this country, which is essentially different from that of England, should introduce another rule. Destitute of the means by which marriages are there capable' of being established with comparative ease, a plaintiff in this country, would frequently find himself surrounded by such difficulties, in this respect, as almost to secure impunity to the defendant.</p> <p>In aggravation of damages, at least, the evidence ought to have been received, and the circumstance of its having been offered before a marriage de facto had been proved, was n© objection to it, for the Court has no right to prescribe the order in which testimony shall be given.</p> <p>The rule that the confession of a party is evidence against him, is not universal, for in addition to the action for adultery, which the case of Morris v. Miller, distinctly decides to be an exception, the confession of the obligor that he executed a bond, cannot be proved without calling the subscribing witness. Morris v. Miller is directly to the point, as to the necessity of proving a marriage in fact; and in 1 Selw. N. P. 19, the testimony of some person present, or a copy of the register, are pointed out as the modes of proof. The necessity of such proof, has not been considered as inapplicable to this country. In Fry v. Derstler, 2 Yeates, 278, a marriage in fact was proved, though no opinion was given on the point in question ; but in Fenton v. Reed, 4 Johns, 52, the authority of Morris v. Miller was distinctly recognised. Nor is the argument derived from the difficulty of procuring positive proof, so strong as is contended. For where a marriage is celebrated before a magistrate, it may not only be proved, by one of the twelve witnesses who were present, but by an exemplification of the register, which it is necessary to have made. Act of 1700, Purd, Dig. 428. There was no reason, therefore, in the present case, for the admission of secondary evidence.</p> <p>To aggravate the damages, the evidence was equally objectionable. Proof of marriage was indispensable as a preliminary step, before which nothing would be given in evidence in relation to damages.</p>

-In Error. ON a writ of error to the Court of Common Pleas of Dauphin county, it appeared that the defendant in error, the plaintiff below, brought an action against the plaintiff in error, in which he obtained judgment. No execution having been taken out within a year and a day, the plaintiff issued a scire facias to revive thé judgment.

In Error. ON a writ of error to the Court of Common Pleas of Lancaster county, the case was'this: Amos Pyle, the de*enc^ant *n error (who was plaintiff below) brought an action of debt on a bond, for a sum of money' which was part of consideration of a tract of land sold by him to the plaintiff in error, Samuel Kine’, who was defendant below.

<p>In Error.</p> <p>THE opinion of the Court below, filed at the request of the plaintiffs in error, was returned with the record of this cause, on a writ of error to the Common Pleas of Lancaster county, in which the action was an ejectment for 303 acres of land in. Leacock township, which the. defendants in error, the plaintiffs below, -claimed under the following circumstances :</p> <p>Patrick Carrigan died seised of the land in dispute, intestate, leaving three children: viz. Catherine,. Jane, and Patrick. Catherine intermarried with James Hamilton. Jane intermarried with Jonathan Coates, by whom she had three children, who survived their parents. Patrick died intestate, some time'before March, 1787, never having been married. Catherine Jenkins, one of the plaintiffs, was otie of the children of James Hamilton and Catherine, his wife,- the latter of whom never made.any disposition of her estate.</p> <p>On the 7th of March, 1787, James Hamilton, m right of his wife, petitioned the Orphans’ Court of Lancaster county for an inquest to divide or appraise the real estate of Patrick Carrigan. An inquisition was returned, finding that this tract could not be divided to and amongst the children, without injury to or spoiling the whole, and valued it at 2340 pounds 10 shillings. On the 27th of the same month, the Orphans’ Court confirmed the inquisition, and “ On motion, in behalf of James Hamilton, intermarried with Catherine, the eldest daughter of the intestate, setting forth that he was willing and desirous to take the premises at the valuation, it it was ordered by the Court, that the said James Hamilton do, on paying or securing to be paid, the' several respective shares of the other children within one year, hold and enjoy the said premises in fee, agreeably to the Acts of Assembly in su. h case made and provided; and the Court direct the distribution of the valuation as follows: to James Hamilton and Catherine his wife, 1170 pounds 5 shillings j to the three children of Jane, 1170 pounds 5 shillings.”</p> <p>James Hamilton entered, into the usual recognisance with two sureties.</p> <p>The defendants were purchasers, both mediate and immediate, from James Hamilton, whose wife never joined in the conveyances, and died intestate.</p> <p>John Hubley, esq., who had been four years in the office of Edzvard Shipp en, esq. the Clerk of the Orphans’ Court of Lancaster county, prior to the revolution, when Mr. Hubley was himself appointed to that office, and filled it until the year 1800, and who practised in the Orphans’ Court both before and after his appointment, and was familiarly acquainted with the proceedings of that Court d ¡ring the whole of those periods, certified, “ that it was the common usage for'husbands to petition the Orphans’ Court, in right of their wives, for the partition or appraisement of their-wives’ estate, and to ask for, and obtain, confirmation of them in fee to the husband, upon giving security for paying to the other children,, their shares of .the valuation money.’’ .</p> <p>After the evidence was closed, the following points were submitted, by the counsel lor the plaintiffs,, to the Court, for their decision. -</p> <p>First, That by the proceedings in the Orphans’ Court, the fee simple in the premises, vested in Catherine, the wife of •James Hamilton, subject to' the life estate of the said James Hamilton, as tenant by the curtesey. ■</p> <p>Second, That the proceedings in the Orphans’ Court, were erroneous and void:</p> <p>1st. Because the wife was no party to the proceedings.</p> <p>2d. Because the husband.had no right to petition for the appraisement of his wife’s real property.</p> <p>3d. Because the proceeding of the husband and wife, should have been by writ of partition. ,</p> <p>After stating the facts, and the points submitted for their opinion, the.Court of Common Pleas (Franklin, President) instructed the jury to the following effect:</p> <p>“ With -the sentiments we entertain on this case, we do not think it necessary to express any opinion upon, the validity of these objections. It does -not appear to us, that the Orphans’ Court had any authority to adjudge this property to James Hamilton, so as to vest the fee in him. The law says, that where the property cannot be divided, 'the sons in succession, may take the estate át the valuation. If there be no sons, or if they shall have all refused to take the estate at the valuation, then the daughters have the same right giv.en to them, in succession, from the oldest to the youngest. If the children be minors, their assent or dissent may be declared by their guardians. ■ If the daughters be married, their assent or dissent may be declared by their husbands ; but if .the estate be accepted, it* must be adjudged to the wife, subject to the right which the law vests 'in the husband. ' ; ' • V. -</p> <p>“ If this opinion be correct, there was nothing to . divest the estate which descended to Catherine, the wife of James ■Hamilton.' The-fee simple was in her. He had no right to convey the estate ; and she and her husband being dead, her title became vested in her children. The wife of the plain* tiff is one of those children, and she claims her .share of the estate in this action.” _ ■</p> <p>The verdict was for the plaintiffs, and the defendants removed the cause by writ of error. / .</p> <p>The- question on which, this 'case depends, is of immense importance ; for its decision will affect the stability of a great ■number of titles. The practice Of the Orphans’Court,.from the earliest periods, has been, where the estate of the wife was taken at the appraisement, to assign it to -the husband, upon-his paying, or- securing to be paid., the other shares in money.</p> <p>Out of the general question two points arise: l.Ts the husband to be considered as a child, under the intestate laws ? ■2. If so, does he take the whole, as well his wife’s.share, as that of the others, as a purchaser ?</p> <p>• Í. The Legislature must have’designfed to place the husbands of married daughters,* upon the footing of children j for they could not have-forgotten that the law must be applied to many cases of inarried women,1 who were incapable themselves of making an election, and whose husbands must necessarily exercise that' right in their place. The privilege of the husband, to take in right of his wife, is adverted to by Judge Yeates in Messinger v. Kintner, 4 Binn. 106.</p> <p>2. Where a child takes the whole at the appraisement, he takes the whole as a purchaser, and no pdrt by descent. By the proceedings in the Orphans’ Court, the estate of the wife is converted from realty into personalty. So it was decided with respect to those shares.for which bonds are given by the child or children who take the estate at the appraised value; and there is no reasouwhy all the shares should not be regarded in the same light. Yohe v. Barnet, 1 Binn. 358. Even the lien of a judgment, against one of the children, ceases on a decrée of the Orphans’ Court, awarding the estate to another child, and the lien is transferred from the .land to the money. Diermond’s Lessee v. Robinson, 2 Yeates, 324. This transmutation of the wife’s estate, can only be effected by an inquest, finding that the estate is incapable of division. As soon as the finding of the inquest has been approved by the Court, the nature of the estate is altered. It becomes personal property, and the’individual who .takes the land at the appraisement, becomes a purchaser, under a judicial sale, made under the authority of a Court of competent jurisdiction, in which the price paid is the appraised value. It would be absurd to say, that a child takes his own share by descent, and the rest by purchase. The whole vests under the same title, and that title is derived through purchase. The same principle applies to the case of a husband, who pays for the shares of the other children-in money, and who is to be considered as having paid for his wife’s share of the land, her purpart of the appraised value.</p> <p>• The language of the decree altogether precludes the idea, that the husband took the estate in the character of trustee for his wife ; for it is given to him, to hold and enjoy in fee.</p> <p>Catherine Hamilton,. on the death of her father, was entitled to one-half of his estate, and nothing has taken place, by which- it has been divested. The proceedings in the Orphans’ Court were void, because the wife, who was principally interested, and who therefore ought to have petitioned, was no party- to the measure. The usage has been for the husband to petition, but it is always in her right, and of course,'oh her account, and she ought to have been joined with him. The Act of Assembly gives no right to the husband of'a married daughter. It confines it to children, to which character the husband has no title. - If the husband possesses the right to petition, it must be in the right, of his wife and for her benefit. The decree-in.this,case, however, gave the estate to the husband in fee, to hold and enjoy the same, agreeably to the Act of Assembly ; by which the wife’s interest was "entirely excluded. The idea that the wife’s'estate is converted into personalty, when the inquisition is confirmed by the Court, is erroneous. This result does not take place, until one of the children has accepted the land at the appraisement; and then as to. the others, and as to them alone, it becomes personalty. No authority is given in any part of the Act, to confirm any portion of the estate to the husband, who* if he takes at'all,: is to be regarded as the friénd of his- wife, páying the money for, her and taking for her be-, nefit. He takes the whole in her right. As t,o the shares of the other children, they are purchased by him for her use, and the interest is vested in her ; but as to her own share, there can be no colour for calling him a purchaser. Where the husband pays money for owelty, of partition, it gives him no interest in his wife’s land. Walton v. Willis, 1 Dall. 351. Diller v. Young, 2 Yeates, 261. 2 Madd. Ch. 101. 2 Fonb. Eq. 125. 1 Cruise, 483. Sugden, 453. Messinger v. Kinter, 4 Binn. 97. None of the adjudicated cases in Pennsylvania, militate against this position, and several strongly support it. Yohe v. Barnet was quite different. There the wife was to have the money, not the land. Diermond’s Lessee v. Robinson, only proves, that no one child can, by his act, prevent the proceedings in tile Orphans’ Court, and that, therefore, the lien of á judgment given by a child, is, after partition by the Orphans’ Court, discharged from the land and transferred- to the money. -But the principles laid down in the cases of Blocher v. Carmony, 1 Serg. & Rawle, 460, and Somerville v. Fogelsonger, decided at Chambersburg in October, 1820,* go the whole length of deciding the present question, in favour of the defendants in error.</p>

<p>In Error.</p> <p>WRIT of error to Dauphin county.</p> <p>who cited Peak’s Evidence, (Randall’s Ed.) 123. 1 Dall. 17. 260. 4 Dall. 132. Addison’s Rep. 181. 357. 1 Binn. 289. 2 Call. 5. 125, 1 Serg. & Rawle. 464: and by</p> <p>who cited Harrisburg Bank v. Meyer, at Lancaster, 1821.* Cozens and Stevenson, 5 Serg. & Rawle, 421. 2 Binn. 102. Clark v. M'Anulty, 3 Serg; & Rawle, 364. Hart v. Porter’s executors, 5 Serg. & Rawle, 201.</p>

In Error. THE defendants in error, who were plaintiffs below,* brought’an ejectment in the Common Pleas of Dauphin county, as executors of the last will and testament of J 1 - Elder, deceased, by… Held: by which it was appraised at a certain sum, and the Orphans’ Court adjudged it to said David Elder, his heirs and assigns, on his entering ,. , • . , .... - r-6-, - recognisances ior the payment to the other, children of their shares of the value of the land.

In Error. ON a writ of error to the District Court of Lancaster county, it appeared, that this action was brought by William Cooper and John Kaufman, the defendants in error, assignees Qf Christian Hiestand, an insolvent debtor, against Jo* seph Gochenauer and Abraham Hamaker, trustees under the last will and testament of Jacob Hiestand, deceased, the father of the said Christian Hiestand.

<p>If the guardian of the mi« nor child of an intestate, ac'pui-Part ofthereal estate of the and cognisances6" for the payment the appraised val¡'iat-es otMhe other ohndmanner pre^[¿státe'iaws the ward is 5 the lhe riving at full</p>

<p>In Error.</p> <p>ON motion of Buchanan, for the plaintiff in error, a rule was granted to shew cause why a mandamus should not issue to the Court of Common Pleas of .Berks county, commanding them to seal a bill of exceptions which had been exhibited to them, and which was now exhibited to this Court, or to shew cause for not doing so; and also to return, as part of the record, a paper containing twelve points of law, on which the counsel for the plaintiff had requested the said Court to charge the jury, together with'the answers of the Court annexed.</p> <p>From the affidavits of Frederick Smith and William Darling, esquires, it appeared that in November, 1818, a trial of this cause took place in the Court below. After the jury had retired, the counsel for the plaintiff informed the' Court, that he excepted to their charge, and was requested by the Court to draw up his bill of exceptions. A verdict was after-wards given for the defendants, on which judgment nisi was entered on the 14th November, 1818. On the 28th of the same month, the plaintiff’s counsel obtained a rule to shew cause why the verdict should not be set aside and a new trial granted, which was argued on the 7th August, 1819, and overruled. Some time in the following week, a bill of exceptions was tendered by the plaintiff’s counsel, which the Court declined sealing, without the consent of the counsel for the defendants, who refused to.consent. A writ of error was sued out to May, 1821, and on a diminution of the record being suggested, in not sending up the bill of exceptions, a certiorari issued, to which the Court returned, that there was “ no such bill of exceptions.” On the hearing in this Court, a paper was produced, which Mr. Smith swore was in his' hand writing, containing twelve points of law, propounded by the counsel for the plaintiff to the Court for their opinion. Under each point was written a remark by the President of the Court, in conformity-with which Mr. Smith swore he charged the jury.</p> <p>Buchanan, in support of the rule — First affirmed-the power of this Court to issue a mandamus in such a case; and, secondly, contended, that-this was a proper case for the exercise of that power.</p> <p>1. It is of great importance that this Court should assert their right to issue a mandamus to compel the Judges of the Courts of Common Pleas, to affix their seals to bills of exception. The Siatute of Westminster 2d, by which a bill of exceptions is given, is extended to Pennsylvania, but without the power somewhere to enforce the duty enjoined by it, its provisions will, in many cases, prove nugatory. This power resides no where but in the Supreme Court. By the 13th sect, of the Act of 22d May, 1722, very ample, powers are conferred on this Court, which is invested with a general Superintendence, over all the other tribunals in the province, is authorised to minister justice to all persons, and to exercise the jurisdictions and powers granted to it, as fully and. amply as the J ustices of the Court of King’s Bench, Common Pleas, and Exchequer at Westminster can do. In England, if the Judges refuse to sign a bill of exceptions, the course is plain. The party aggrieved may have a writ upon the Statute, which after reciting the exception taken and overruled, proceeds vobis prcecipimus quod si ita est, tunc sigilla vestra apponatis. If it be returned, quod non ita est, an action will lie for a false return, and if it be so found, damages will be given, and upon such a recovery a peremptory 'mandamus is awarded. Bull. N. P. 315, 216, 2 Inst. 426. The form of such a writ is to be found in Regis., Brev. 182. In the State of New York, such relief is constantly granted. People v. Judges of West Chester, 2 Johns. Ca. 118. People v. Judges of Washington, 1 Caines' Rep. 511; and the Supreme Court of that State have decided, that they may issue, a mandamus for such a purpose, notwithstanding they have a Court of Chancery. Sikes v. Ransom, 6 Johns. 279. If this Court do not possess the power contended for, there must be a failure of justice. A writ of certiorari affords no redress, because it only orders the transmission of an existing record, while the object is to compel the Court to give existence to that which ought to' be a part of the record, which can only be accomplished by a mandamus. Nor is an action against the Judges, for damages, a proper remedy. Until they have made a false return, no action will lie against them ; and it is greatly to their advantage that the law is so ; for if the Judges are sued when no mandamus has issued, the damages must be for the whole amount of the party’s demand ; but if a suit be brought for a false return to the writ, there damages are merely for the delay, because the remedy for all the rest will be had by a peremptory mandamus. Every consideration of expediency, therefore, whether connected with the party complaining or complained against, recommends the exercise of a power, which this Court undoubtedly possesses.</p> <p>2. The power of this Court to issue a mandamus, being established, the propriety of doing so on the present occasion, remains to be considered. The Statute mentions no time, at which a bill of exceptions should be sealed.' In England, the practice is to' note the point at the time the exception is taken, and to reduce the bill to form after the trial. The practice in Berks county, as appears from the affidavit of. Mr. Smith, whose experience extends as far back as 1795, is the same, and it is very usual there, not to make up the bill until several terms after the cause has been tried. What was done in this case, was conformable to the practice. The exception was taken, immediately on the jury’s leaving the box,' although no formal bill was presented to the Court, until after the motion for a new trial had been discharged; and the delay in this case was the less liable to objection, because twelve points were submitted to the Court, under each of which, the presiding Judge wrote his opinion, and retained the paper, which formed substantially a bill of exceptions.</p> <p>denied the authority of this Court to award the writ prayed for. It is not authorised by the Act of 1722, which is expressed in general terms, and does not say a word of a power to' issue writs of mandamus to the Courts of Common Pleas, which, being superior Courts, are not amenable to such process. Several applications have been made for this writ, and although the Court have not positively denied the existence of the right, they have uniformly declined the exercise of it. Commonwealth v. Judges of Common Pleas of Philadelphia county, 3 Binn. 273. Brackenridge's Case, 1 Serg. & Rawle, 192. The exigencies of this case do not require a mandamus, which, it is well settled, can only be granted, when no other remedy can be obtained. Commonwealth v. Rosseter, 2 Binn. 360. The obvious remedy was a writ of certiorari. This, the plaintiff has already resorted to, and the Judges have returned, that no such record remains in the Common Pleas. If their return is false, redress may be had, by an action against them for damages. If that remedy be not sufficient, the party aggrieved has another, by an action for damages, against the Judges for disobedience to the Statute. Where a Statute is disobeyed, an action lies, and in such a case, a mandatory writ to the King’s Bench, has been denied by the Chancellor. Show. Par. Cas. 122. The reason given in Brackenridge's Case,-for not granting the relief applied for, supposing'the Court to possess the power to grant it, applies with equal force to the case under consideration. In both instances, the writ was prayed, in order to compel the performance of an act of a judicial nature. Another serious objection occurs. This Court will .never undertake to administer justice by halves, and assume a jurisdiction they-cannot carry through. Now if an action for a false return be brought, it must be in the Court which issued the mandamus. 4 Bac. Ab. 522. 2 Salk. 428. 1 Ray, 128; and this cannot be, because this Court possesses original jurisdiction only in the county of Philadelphia.</p> <p>But to entitle a party to a mandamus, there must be a specific legal right, as well as the want of a specific legal remedy, and here was no such right. It is the duty of the counsel to propose his exception in writing, and the Judges are bound to do nothing but affix their seals to the exception. Where evidence is excepted to, the bill ought to be tendered when the exception is taken; where the exception is to the charge, it may be taken at any time before the verdict is delivered in open. Court. Clarke v. The Insurance Company of North America, 1 Binn. 38. Salk. 288. 6 Johns. 279. 9 Johns. 345. 8 Mod. 220. 12 Johns. Cas. 118. 1 Bac. Ab. 528. No bill was presented in the present case, until the third Term after the trial, when the Jddg-e had no right to seal it, without the consent of the opposite party, which was refused.</p> <p>- In reply, it was said, that in the case of The Commonwealth v. The Judges of the Common Pleas of Philadelphia county, it was only decided, that a mandamus would not lie to that Court, to command them how to give judgment; that Brackenridge’s Case went upon the principle, that the admission of an attorney was a judicial'act; but the affixing a seal to a bill of exceptions, was purely ministerial; that the objection in the case cited from Show. Par. Cas. 122, which was a petition to the House of Lords, to command the Court of King’s Bench to seal a bill of exceptions, was, that a writ should have been prayed for on the Statute of Westminster 2d. to which the Judges might have made a return ; and that the argument founded upon the idea, that this Court could not give complete relief, for want of original jurisdiction, was unfounded, because an action for a false return, might well be brought in another Court, and whether this Court would afterwards award a peremptory mandamus, was another ques-. lion.</p>

<p>Where an Act for incorporting a .Turnpike Company, appointed subscriptions, rected to re-five dollars siiare subscribed,previseription, and §™11 a patent incorporatioa on receivógfe oftbe1*6" commissioners tti9t a cer— tain numbex* of shares had been subscribed, it was held, missioned ’loU,ls' pense with the previous of ; dollars ¡ ' ted a subscrip, such payment, the contract was void, and the Company could not, after their incorporation, recover the 1 been paid,</p>

<p>Where a soie]y°uf matter of record, pie, «there is ^™1,' odre facias ^ouiTreassert the reckjdefby C<m" praying that ltmaybemspeoted by the Court. If it conclude to the country,, it is error*</p>

<p>In Error.</p> <p>ON the trial of this ejectment in the Common Pleas Dauphin county, on the 30th January, 1819, the defendant filed a paper expressed thus:</p> <p>“ On a verdict being rendered for the defendant in this cause, he agrees that referees be appointed by the Court to ascertain the real debt due from him to George Bower, and that the same shall be paid immediately upon the report being returned and approved by the Court, and in case of nonpayment, then that the verdict be set aside, and judgment be rendered in favour of the plaintiff in this cause.”</p> <p>The verdict was for the defendant, and on motion of the counsel for the plaintiff, a rule was granted to shew cause why it should- not be. set aside, which, after argument, was discharged by the Court, who entered judgment on the verdict.</p> <p>On the 13th March, 1820, the counsel for- the plaintiff moved to set aside the judgment and execution, and to have arbitrators chosen conformably to the agreement filed in the cause, which the. Court, after argument, refused, being of opinion that the judgment entered on the verdict, could not be set aside after the period which had intervened between its entry and the time when the motion was made.</p> <p>This opinion, being filed at the request of the plaintiff’s counsel, was removed with the record on a writ of error.</p> <p>insisted, that# the Court below had no power to enter judgment on the verdict, until the defendant had complied with the terms stipulated-by his agreement, in pursuance of which, it was their duty to have appointed referees. The Court permitted this paper to be filed; it formed part of the record, and was combined with the verdict. It was upon the faith of this agreement that the verdict was given. In such a case, chancery would interpose by injunction, to prevent an execution upon a judgment at law. 3 Dessausure’s Cha. Rep. 323, 4, 5. 1 Madd. Cha. 103. 109. 110, 111. This Court, possessing equitable powers, and frequently, where a case of equity arises on the record, exercising chancery jurisdiction* are now called upon todo so, to prevent a failure of justice. Moody v. Vandyke, 4 Binn. 31. Miller v. Milford, 2 Serg. & Rawle, 35. Hart v. Porter’s executors, 5 Serg. & Rawle, 203, Lessee of Mathers v. Akeuright, 2 Binn. 93. Ebert v. Wood, 1 Binn. 216. The plaintiff had a right to move for a new trial, and when the Court refused to grant it, they should have appointed auditors. The defendant had received the benefit of the agreement, by obtaining a verdict, and equal justice should have been measured out to the parties.</p> <p>This cause, like every other which comes before a Court of error, mast be determined from the record alone, of which the paper in question forms no part. It was never assented to by the plaintiff; it was not read to the jury, nor was it noticed in the charge of the Court. Although the note on which suit is brought be filed, it is no more a part of the record, than depositions filed in the cause. Woodbury v. White, 7 Mass, Rep. 448. But viewing this paper as part of the record, it has been rejected by the plaintiff, and therefore is not obligatory on the defendant. Instead of accepting the terms offered, when the verdict was given, he immediately moved for a new trial, and it was not until he was disappointed in the result of that motion, and after the lapse of two Terms, that he thought of resorting to the alleged agreement. This was a case in which the plaintiff elected one of two courses that were offered to him, at the same time rejecting the other; as in the case of Bassler v. Niesly, 2 Serg. & Rawle, 355, where the plaintiff filed a paper binding himself to pay whatever auditors might determine, and it was held, that the defendant might accept the offer or reject it, and sue for his money in another action. So the grantee of a rent charge, may at his election bring a writ of annuity or distrain. If he recover in annuity, the land is discharged ; and if he recover by distress, the person is discharged from the annuity. Co. Litt. sec. 219. 144, 5. If an offer is not accepted, it is not to be regarded. Turton v. Benson, 1 P. Wms. 496. Tuttle v. Love, 7 Johns. 470.</p>

<p>In Error.</p> <p>EJECTMENT in the Common Pleas of Dauphin county, ■',*</p> <p>John Leman, the plaintiff below, claimed- the land in dispute, under the will of his father, Daniel Leman, which was 1 7 7 dated the 9th of January, 1/83, and proved on the 5th of £he following February. The testator left sixteen children, twelve of whom were minors. Having directed by his will, that . , . . _ ° a certain plantation in Lancaster county should be divided *nt0 two Parts? an(* his land in Upper Paxton township, into three parts, each of which was to be appraised within one after his decease, by six discreet men, to be chosen in ^ manner prescribed by his will, he proceeded to devise, as follows: “I will that my sons (except ChristianJ may have their choice of said five parts regularly in their turn, allow-£^e eldest to have the first choice, and so on till the said five pieces of land may be chosen, and to which that may c^00se as afore directed, it shall be to them, their heirs, and assigns forever, they paying the praisement sum in the following manner, that is; after taking each child’s several share or legacy first out of his appraised sum, it shall be divided into six equal shares, to be paid yearly, and the first payment to be made in one year after the appraisement, by those who may be of age then to make choice, but they who may not he th< n of age, that is, twenty-one years, I allow that their first payment be made at the age aforesaid. And if there should be any piece or pieces not chosen, as above directed, my will is, that it or they be sold by my executors, to pay legacies, or debts (if any there should be ;) also that my executors rent out the same, until my children be fit to choose, that is twenty-one years old.” In pursuance of the will, the testator’s lands were divided into five parts. The two parts into which the Lancaster plantation was divided, were taken at the appraised value, bv his sons Daniel and Jacob. The lands in Upper Paxton, being divided into three parts, were appraised, as follows : one tract of two hundred and thirty-two acres, at twenty-one shillings an acre"; one other tract of two hundred and thirty-two acres, at twenty-two shillings and sixpence an acre ; and one other tract of two hundred and thirty-two acres, at twenty shillings an acre. The last mentioned tract was taken by one of the sons, named Emanuel. George and Samuel Leman, sons of the testator, were next in order, and had the right of choosing the two remaning tracts. They did not choose them; but by a writing under their hands and seals, dated the 5th of April, 1789, relinquished their choice, and consented that Peter Ferree and John Slier ts, the executors of their father’s will, should make sale of the said two tracts, and that the money arising from the sale, should be appropriated in the manner directed by the said will, without any hindrance, objection; or interruption on their parts. In the year 1792, the executors made several attempts to sell these two tracts at public sale, but could not get a bid as high as the appraised value, and therefore did not sell them. In the year 1793, the executors sold both tracts to Samuel Le Fevre, the husband of one of the testator’s daughters, at the price of seventeen shillings arid sixpence an acre. At that time, the plaintiff, John Leman, was about twelve years of age. Part of these lands had been mortgaged by the testator, to the trustees of the loan office, for one hundred and fifty-two pounds. On making this purchase, Samuel Le Fevre was put into possession, which has been retained by him, and those claiming under him, ever since. The mortgage to the trustees of the loan office, was discharged by the money paid by Le Fevre, and the executors of Daniel Leman received satisfaction from him for the whole purchase money, with which they charged themselves in their administration account. One hundred and ninety-two acres of this land were held by Daniel Le-man, on a warrant for one hundred aci'es, taken out the 31st of December, 1773, for which he paid the usual purchase money of five pounds sterling. It was agreed between the executors and Le Fevre, that he should procure a patent at the expense of the estate ; and accordingly he took out a new warrant on the 19th of October, 1796, on which he obtained a patent to himself for one hundred and ninetv-two acres and three-quarters, on the 22d of February, 1797. Le Fevre was informed of the contents of Daniel Leman's will, and warned by some of his friends, that his title was defective ; but he answered, that he was under no apprehension, as he had a bond of indemnity from the executors. The plaintiff arrived at the age of twenty-one years on the 5th of September, 1802; and sometime in the year 1804 ot 1805 (the evidence was not clear which,) he applied to the executor of John Sherts, then deceased, who was the surviving executor of his father, Daniel Leman, and demanded his land. He was answered, that there was no land ; it had been all sold to Le Fevre. Thus matters stood, until the 28th of February, 1811, when the plaintiff and his brother Peter entered uto a written agreement, under hand and seal, designating he tract of land which each of them chose under the devise in their father's will. When this writing was offered in evidence by the plaintiff, the defendant’s counsel objected to it; and the objection being overruled, they excepted to the Court’s opinion.</p> <p>The defendant claimed the land in dispute, under the deed from the executors of Daniel Leman, to her father, Samuel Le Fevre.</p> <p>• After the parties had gone through their evidence, the President of the Court delivered a charge to the jury, era-bracing the Court’s opinion on severa, distinct propositions, submitted by the counsel lor the plaintiff. So far as it is material to the points argued and decided in this Court, the charge was to the following effect: i hat the mortgage given to the trustees of the loan office, which it was contended by the defendant, had it remained on interest until the plaintiff arrived at twenty-one years of age, would have amounted to more than the value of the land,. ould not affect the plaintiff’s right to recover, because, the testator having given a bond with the mortgage, and directed by his will, that all his debts should be paid, it was the duty of the ex. colors to pay of! the mortgage out of the funds in their hands, yvhich were sufficient for that purpose. The general rule of law was, moreover stated to be, that where mortgaged lands are devised, without being charged with the payment 01 the mortgage money, the executors are bound, in lavour ol the devisee, to disencumber the land, out of the personal effects of the testator. Nor, the Court were of opinion, was it necessary to tender to the defendant, the amount of the mortgage, before bringing the action. Although, it was highly probable, they said, that the executors discharged the incumbrance upon the land, with the money they had received from Le Fevre, it was not such a payment of the mortgage by Le Fevre, as would give him alien upon the land.</p> <p>The jury were further instructed, that it did not appear to be the intention of the testator to restrain the right of choice to his first five sons, but to give it to them all in turn ; but, that if the jury thought differently, there was an end of the' case, for the plaintiff'could not recover.</p> <p>That the warrant taken out by Samuel Le Fevre, on the 19th October, 1796, on which he had a survey made, and obtained a patent in his own name, did not vest in him a title adverse to that of Daniel Leman, which he undertook to purchase, nor divest Leman's heirs of their interest in the land.</p> <p>That the sale by the executors, was not to be regarded as a sale by George and Samuel Leman, on whom the right of choice devolved, under the will of their father. The instrument executed by them on the 5th April, 1789, was a mere relinquishment of their respective right of choice, and transferred to the executors no power to sell.</p> <p>It was also the opinion of the Court of Common Pleas, that the plaintiff acquired by the will of his father, an interest in the lands devised to lie divided and appraised, which, upon a choice being made of the land in dispute, gave him a fee simple, subject to the payment of the appraisement money : That it could hardly have been the intention of the testator, to require from the son, the payment of the first instalment, before he obtained possession of the land : That the executors, by parting with the possession, had put it out of their power to give the plaintiff the possession he demanded, and therefore atender by him of the first instalment, would have been useless and unnecessary : That the jury were to determine whether or not the testator meant to compel his sons to make their choice on the very day they respectively arrived at the age of twenty-one years, and, whether, if the executors had not, by their own act, deprived themselves of the power of giving the plaintiff possession, he ought not to have been allowed a reasonable time after he came of age, to make his election ; and that they were also to determine, whether or not the plaintiff' had abandoned his right of choice by not demanding the land on the day on which he was twenty-one years of age, and tendering the necessary instalments : That the deed given by the executors to Le Fevre, was without authority, and therefore void, and Le Fevre consequently an intruder: That if he were not an intruder, but a purchaser, he would derive no equity from the improvements made by him, because he purchased with full notice of the provisions of Daniel Leman’s will, and the plaintiff’s title under it; and a fortiori, he could have no equity, as he was a trespasser ; and, that therefore, the plaintiff was entitled to the possession of the land, before he was bound to pay the money charged upon it.</p> <p>The whole of this opinion was excepted to by the counsel for the defendant, and returned with the record.</p> <p>The jury found a verdict for the plaintiff, who after judgment was entered, filed a paper, by which he agreed that no habere facias should issue, until he paid or tendered to the executors of Daniel Leman, such a sum as the Court might deem just, for the lands recovered.</p> <p>The plaintiff below never in fact elected to take the land at the appraisement. The instrument executed by him and his brother Peter, was an agreement between themselves, improperly permitted to go to the jury, by which they respectively designated the tract which each preferred; but no notice of this choice having been given to the executors, it did not amount to an election under the will. Regarding it however as an election, it was made too late. Instead of exercising his right of choice immediately on coming of age, he suffered nine years to elapse before he took any positive step. In relation to this part of the case, the course pursued by the Court of Common Pleas, was erroneous. Whether the plaintiff was bound to elect, as soon as he arrived at the age of twenty-one years ; and whether in consequence of the executors having put it out of their power to give him immediate possession, he was entitled to a reasonable time afterwards, were questions which the Court ought to have decided, instead of submitting them, as facts, to the determination of the jury. The plaintiff was guilty of another omission, which was fatal to his right of recovery. By the will, the sons who should come of age after the testator’s death, and choose to take the land at the appraisement, were directed, on reaching the age of twenty-one years, to pay the first instalment. This should have been paid or tendered, before suit was brought. If A. agrees to sell and convey to B. on a certain day, and for a certain sum, and B. agrees to pay that sum, A. in order-to recover, musí tender a deed. Green v. Reynolds, 2 Johns. 207. Not only must a purchaser tender the consideration money before commencing an ejectment, but he must bring it into Court before he can obtain a verdict. Minsker v. Robinson, 2 Yeates, 344.</p> <p>The deed executed by George and Samuel Leman, the elder brothers of the plaintiff, was not a mere relinquishment of their right of.choice. It contained an express consent that the executors should sell the land, and is therefore to be regarded, in connection with the deed given by the executors, as conveying a complete title to Samuel Le Fevre-. If however the latter deed did not convey the fee, it was not, as the Court erroneously stated, void ; because the executors had express power by the will, to rent the land until the children came of age, and also, because the plaintiff might have affirmed it after he arrived at maturity.</p> <p>It is a fraud to stand by and see another make improvements. 3 Bac. Abr. 301. Fraud. B. 1 Bay. 239. The Court of Common Pleas therefore erred, in saying that the plaintiff’s title was not affected by his lying by during so long a period, and permitting the purchaser to make improvements. If a cestui que trust suffers a long time, for instance twenty years, to elapse, without interrupting the purchase made by his trustee for his own use, equity will not relieve him. Sug. on Vend. 404. The executors had received Le Fevre's money, and carried it to the cr.-dit of the estate, and the jury should have been permitted to judge whether or not the conduct of the plaintiff, in relation to this matter, was fraudulent. The Court also erred, in saying that the payment of the mortgage money to the loan office, was no protection to the defendant’s title ; and in their opinion, that the will of Daniel Leman gave the right of election to all his sons in their turn ; that right being confined, by a true construction of the instrument, to the five eldest. Act of 13th April, 1807, 4 Sm. L. 476. 10 Johns. 266. Mitchell v. Deroche, 1 Yeates, 12. Stouffer v. Coleman, Id. 393. Co. Litt. 236, b. 3 Com. Dig. 85. Act of 31st March, 1792, 3 Sm. L. 67. 8 Johns. 406. 3 Johns. 387, were cited in the argument.</p> <p>1. The deed by which the plaintiff and his brother Peter designated the tracts which they respectively chose, being immediately connected with the plaintifl’s title,without which it could not appear which of the brothers chose the land in dispute, was clearly evidence.</p> <p>2. It is not correct in point of fact, that the plaintiff below-suffered nine years to elapse before he took any step in prosecution of his claim. In the year 1804 or 1805, he made a claim on the executor, and was answered, that there was no land for him. But this demand was unnecessary. He had his life to make his election in, unless called on by the executors or others interested in the estate. Hayward's Cases 2 Rep. 36, b. The error, therefore, was in charging that the plaintiff was to be allowed a reasonable time to make his choice ; but this error being favourable to the defendant, he cannot complain of it.</p> <p>3. The agreement between Peter and John, the plaintiff, was a positive election, of which it was not necessary to give notice to the executors.</p> <p>4. The executors, having sold the land during the plain, tiff’s nfnoritv, had put it out of their power to give him possession, and therefore could not expect the amount of the appraisement to be paid to them. He was consequently under no obligation to make a tender before commencing an ejectment. Bassler v. Niesly, 2 Serg. & Rawle, 352. The case of Cortelyon v. Lansing, 2 Caines' Cas. in Err. 200, illustrates this position. A pledge was given to be restored on payment of, or giving security for the payment of 600 dollars. Part was paid, and the pawnor died. The pledge had been sold by the pawnee, in the lifetime of the pawnor. The executor of the pawnor on whom the right of redemption descended.it was held, might support an action, without payment of the balance, giving security or making a tender, because the pawnor had incapacitated himself by the sale, from delivering up the pawn. Another reason presents itself, why it was not necessary to make a tender : Was the plaintiff to pay interest from the time of his arrival at full age ? Was he to pay the patenting fees and costs, paid by Le Fevre on procuring the patent to himself? These were questions which left the amount to be paid by the plaintiff uncertain, and where that is the case, a tender need not be made. Moody v. Vandyke, 4 Binn. 31.</p> <p>5. I’he executors had no authority to make the deed to Le Fevre. A right of election was given to all the sons of the testator in turn, some of whom, and among the rest the plaintiff, were in their minority, at the time the sale took place, and had no opportunity of exercising their choice. Le Fevre therefore, by entering under a deed which conferred no title, was a trespasser, as regarded the plaintiff, though not so with-respect to the executors.</p> <p>6. The instrument executed by George and Samuel Lemán, was nothing more than a waver of their right of choice. (The Court informed the counsel, that they need not speak to this point.)</p> <p>7. The improvements made by Le Fevre, gave him no equity, because he entered into possession with full notice of the defects in the title, to secure himself against which, he took á bond of indemnity.. It is a bold attempt, under the cloak of equity, to ask a recompense for a trespass. Cox v. Cromwell, 3 Binn. 114. Willis v. Bucher, 2 Binn. 455.</p> <p>' 8. The mortgage to the trustees of the loan office, was not paid by Le Fevre, except in part payment of the purchase money, and he took no assignment of the mortgage. The payment, properly considered, was by the executors, who had assets, independently of what they' received from him, out of which they might have paid it. He had no lien on the land by virtue of this payment, and must look to the executors for re-imbursement.</p> <p>Notwithstanding the plaintiff was, by the verdict, entitled to immediate possession, he did not wish to receive it until he had complied with every thing required by his father’s will. He therefore filed an agreement, that he would not issue an habere facias, until he had paid or tendered, a just equivalent for the land. This removes several of the objections to the judgment. Bassler v. Niesly, 2 Serg. & Rawle, 352.</p> <p>that it was the intent of the testator, that each of his sons should, in his turn, have the right of election, but insisted that it was to be exercised speedily after they came of age, by those who were in their minority at the time of their father’s death. At law, the condition was broken by non-payment of the first instalment, immediately on reaching the age of twenty-one years ; and although equity might relieve, and give a reasonable time to make the payment, it is going much too far, to say that the plaintiff is allowed his whole life. The authority from 2 Rep. 36, b. only shews, that he who has a general right of election, has his life to make it in ; but the plaintiff had not a general right; he was limited to a particular time. The children who were to receive money, were not to wait until the executors thought fit to call upon the plaintiff, or he thought fit to come forward. He was to have his money' ready', and determine his choice immediately on coming at the age prescribed by the will. The deed given by the executors to Le Feme, did not relieve him from the necessity of doing so, as all the children were interested, and the act of the executors could not deprive them of their rights. The executors had merely a naked power to sell, in case there should be any part of the land not chosen agreeably to the provisions of the will. The result is, that the plaintiff having omitted to choose at the time appointed, and the executors being unable to sell at that time, in consequence of their previous unauthorised sale, the estate vested in all the children of the testator; and as a defendant in ejectment, may defend under the title of another, the plaintiff could not recover. The possession of the defendant was further protected, because Le Fevre, having married one of the daughters of the testator, was in in her right, and could not be considered as a trespasser with respect to any one whatever.</p> <p>The cases cited on the opposite side, do not invalidate the position, that a previous tender of the amount of the appraisement was necessary to entitle the plaintiff to recover. In Bassler v. Niesley, the plaintiff was entitled to possession before he paid the purchase money, by the terms of the agreement. The reason why he was permitted to maintain his action in Moody v. Vandyke, was, because he had the legal title. The case cited from % Cairns's Cas. in Err. 200, has no application. It was the case of a pawn, in which the pawnor had the absolute right of property before he pawned. In the present case, the plaintiff had no right before payment or tender.</p> <p>The paper filed by the plaintiff, in relation to a stay of execution, cannot affect the judgment. The Court charged, that the plaintiff was entitled to recover, without condition; the judgment imposed no terms, and a paper, filed by the plaintiff after it was entered, cannot possibly cure its defects.</p>

In Error. The plaintiff in error, having been convicted of fornication and bastardy, in the Court of Quarter Sessions of Dauphin county, was sentenced to “ pay a fine of one cent to the Commonwealth of Pennsylvania, to pay to Sarah sixteen dollars, fifty cents, for lying in and other expenses, to pay to the said Sarah Moulson, the sura of forty cents weekly, and every week from this day, until the 15th day December, 1826, if the child should so long live, to be bound - . .…

<p>tered by the SLdlr awíí rantofattor. ney, pursuant x'ebru180B>is opened,and the defendant let into a defence, neither declaration u°neceasalry.,lt</p> <p>s5ems tnereiore thatanimpermenUnVuch ?case >wou,d but la not tobélt exa!niaed as critically as a declaration; fnibrmatfoiTuf l5le «ature of the plaintiff’s claim, and enable the defendant tj> pl«ada judgbar pf any5 Sufficient.</p> <p>Where the pieadedSe:-8 c‘a!|y>al«adet' which might have been given in evidence under (he general issue, it seems thai the want of a replication to such plea, is noterror. tc 'The Lottery Act,” without more, is an j»s< nsible. plea, and need not be replied to.</p> <p>Where, in an action of debt, the veidict does not exceed the sum demanded in the writ, it should be taken in debí for the whole sum 5 win re the ckbt am' interest exceed that sum, it should be in debt, for (lie amount demanded, and in damages for theresjdue*</p>

<p>tract or wrong Where a proposed alteration of a declaration would introduce an entirely new cause of action, it cannot be. permitted s but where it merely lays in a different manner, which the plaintiff thinks will best correspond with the nature of his complaint, and'wilh his proof, it may be allowed after the jury is sworn.</p> <p>Where covenants are^mutual and concomitant, one party cannot oall upon the other to perform his part of the contract, without having actually performed or tendered performance of his own.</p> <p>Articles of agreement were entered into between the plaintiff and the defendant, by which the former agreed to sell a tract of land to the latter, who was to pay one-third of the purchase money on a certain day, on which a good title was to he given to him free from all incumbrances, and the remaining two.thirds by instalments. The defendant went into possession, but the first payment not being completed on the day agreed upon, no conveyance was made or tendered by the plaintiff. The defendant subsequently made several payments on account of the first instalment, which wa’s never fully paid. Sometime afterwards, the plaintiff tendered a deed to the defendant, who refused to accept it, on the ground that it was too late. Held, that in an action for the purchase money, the defendant coujd not give in evidence damages sustained by him, in consequence of the plaintiff’s being unable or unwillingto give him a title at the day.</p> <p>After declaring in an introductory clause, his intention of bequeathing ccwhat worldly estate it had pleased God to bestow upon him,” a testator devised to his wife, the benefit and full privilege of the plantation he then lived on, until his son should arrive at the age of twenty-one years, and if his wife remained a widow until his son was of age, she was to have half of his plantation, with all the benefit of it during her life or widowhood. Ke then devised to his son ccthe plantation and land he lived on, as soon as he should arrive at the age of twenty-one years, if his wife should then be married or dead, but if she continued his widow, each to enjoy half as above.55 Then came a bequest to his two daughters of the residue of his personal estate, to be equally divided between them, '‘and if either of them be removed by death before they be of age, the other to enjoy the whole ; or if my son G. &. be removed by death before he be of age, his part to fall to my daughtersThe soon took a fee.</p> <p>Where legacies have been charged upon land, they may, in proof of performance of a covenant to convey free from incumbrance, be shewn to have been paid, by receipts of the legatees or any other written evidence. A discharge by deed need not be produced.</p> <p>If a mesne conveyance, forming part of the chain of title, be mislaid by the vendor of land, it seems that the vendee who has executed the contract in part by taking possession, cannot object to the title on that account, as the defect may be supplied by a bill inperpetuamreimemonam / still less can he object to it, when he has never, by the performance of his own covenants, put himself in a situation to demand the title papers, and the lost deed has been found, before the title was tendered by the vendor.</p> <p>An acknowledgment of a deed by husband and wife, in Washington county, Maryland, in which they resided, before A. B. & C D. who were stated in a certificate of the Clerk of the Court of the county, under his bfficial seal, to be justices of the peace of that county, without stating that they were the chief officers of the place, or any proof being given that they were so, is not good within the Act of 24th February, 1770.</p> <p>If the Court, after laying down the law correctly to the jury, add,<e These positions are all true as general positions. You are to decide how far they are applicable under the evidence in this cause,55 it is not error#</p>

<p>On the reversal ofa judgment, this Court will tution only'” of what the dcfendant in errorhasaotually received. If therefore, land has been sold by the Sheriff, sum 'subject to die cUiirn^ as*asceita?ned adjudgment which has to the Sub^wdt^ferror, and the chases Hof the demand oh"tains posses-Court'will not order restitution of the amount subject to which the land was sold, as well as the price paid for it.</p> <p>Nor will they award a scire facias, to shew cause why this should not bo wTuhey grant tiff írf error" such relief, as cdicrelienlTapplied ftr.</p>

<p>In Error.</p> <p>ON a writ of error to Lancaster county, tbe case, appeared to be this :—</p> <p>Peter Berk, being seised of certain real estate, in Lancaster county, made his last will and testament, by which, after devising the real estate to his wife, Margaret, during her widowhood, he directed that after her death, it should be sold at public vendue to the highest bidder, and that the money arising from such sale, should be equally divided among all his children. It was afterwards agreed between the widow, and the heirs and legal representatives of the testator, that the estate should be sold at public sale to tbe highest and best 4 n7 bidder, and that one thousand pounds, part of the purchase money, should remain charged on the land, during the ral life of the widow ; that the interest of that sum should be paid to her on the 1st April, annually, during her natural life; that the residue should be immediately divided among the children and heirs of the testator, according to the directions of his will, and, that at her decease, the principal sum of one thousand dollars should be paid to-the heirs and legal representatives of the testator in equal proportions.</p> <p>On the 28th February, 1812, a sale took place accordingly, and John Sweigart, the plaintiff in error, became the purchaser. On the first of the following May, a deed was executed to him by the widow, by two of the sons who were the executors, and by all the other heirs and representatives of the testator, except Philip Hartung, and his wife, Elizabeth, who was a daughter of Peter Berk. On this deed, was endorsed another dated, May, 22d, 1813, executed by Frederick Roads, as the attorney in fact of Philip Hartung, and Elizabeth, his wife, by which he conveyed to John Sweigart, in fee, all the share and interest of the said Philip and Elizabeth, in the said estate. The power of attorney, under which Roads acted, empowered him u to settle with the executors of Peter Berk, all accounts, legacies, &c. which by the said will, or otherwise, Philip Hartung and Elizabeth, his wife, were entitled to have and receive from the,estate of the said Peter Berk, and to ask, demand, and receive, the amount thereof from the said executors, and on receipt thereof, to execute, seal, and deliver to whomsoever may be entitled to the same, all and every release, quit-claim, receipt or other instrument of writing, which may be necessary to secure the said executors from harm, on account of any payments which may be made by them to the said attorney,” &c. This power bore date, the 29th April, 1813, and was acknowledged by Hartung and wife, before a justice of the peace, of Stark county, in the State of Ohio.</p> <p>On the day on which the first mentioned deed bore date, viz. on the 1st May, 1812, John Sweigart executed a bond, by which he bound himself to the widow, and heirs, and representatives of Peter Berk, deceased, in the sum of two thousand pounds, with condition, that it should be void, if he paid or caused to be paid “ to the said widow, and heirs, and representatives of the said Peter Berk, deceased, or to their certain attorney, executors, administrators, or assigns, the just and full sum of one thousand pounds, at, or immediately after* the death of Margaret Berk, widow and relict of the said Peter Berk, or to the said deceased’s heirs and representatives, in equal shares, alike, with lawful interest for the same, annually to be paid unto the said Margaret Berk, the widow aforesaid, during her natural life on the 1st April, yearly, from the first day of April, last past.”</p> <p>The interest on the one thousand pounds was regularly paid by the obligor to the widow, up to the 1st April, 1815. On the 6th February, 1816, she died, and for the interest accruing from the time of the last payment, to the time of the widow’s death, this action was brought by her administrator.</p> <p>In the course of the trial, the defendant offered to give in evidence, the entries in the docket of Henry Smith, Esq. a justice of the peace, in a suit brought before him by Daniel Berk against John Sweigart, together with proof, that it was brought for the same cause of action, as that upon which the present suit was founded, and, that prior to the institution of the suit before the magistrate, Jacob Frey, the present plaintiff, John, Peter, George, Adam, and David Berk, had assigned to Daniel Berk, all their right to the interest which had accrued on the bond on which the suit was brought, up to the time of the death of the widow, and, that Daniel had received fifteen pounds from the defendant. The Court rejected the record of the suit before the magistrate, and declined giving an opinion, as to the inadmissibility of the assignment, until it should be separately offered in evidence.</p> <p>The defendant, also offered in evidence, the docket entries ■of another suit, brought by the administrator of the widow of Peter Berk against John Sweigart before the same magistrate, in which no judgment was obtained by the plaintiff, who paid the costs and withdrew the action. The view with which this evidence was offered, was to shew that the plaintiff considered his demand upon the defendant, as not amounting to more that one hundred dollars. The plaintiff’s counsel objected to the evidence, and the Court rejected it.</p> <p>The first objection made in the Court of Common Pleas, to the plaintiff’s right to recover was, that the interest which accrued on the bond from the 1st April, 1815, belonged to {¡le he¡rs and representatives of Peter Berk, and not to the administrators of Margaret Berk.</p> <p>this point, the Court were of opinion, that the interest on the sum of one thousand pounds, being payable under the terms of the bond, to the widow during her life, whatever proportion of it accrued from the 1st April, 1815, to the time of her death, belonged to her estate, though not demandable until the 1st April, 1816.</p> <p>It was objected also, that the power of attorney executed by Philip Hartung and Elizabeth his wife, to Frederick Roads, did not authorise him to convey to the defendant their interest in the estate, for the consideration money of which, the bond in controversy was given ; and that supposing the power of attorney did authorise him to convey their interest in the premises, yet the deed executed by Roads, on the 22d May, 1813, was absolutely void, and conveyed no title to the defendant. The President of the Court of Common Pleas was of opinion, that the power of attorney did not authorise the conveyance, and that independently of that objection, the deed conveyed no title. The associate Judge, however, thought differently ; but the two Judges concurred in the opinion, that the defendant had received an unexceptionable title to the property, under the deed of the 1st May, 1812, executed by the widow and the executors of Peter Berk, which they thought, passed the whole estate of the widow, and of all the heirs and representatives of the testator.</p> <p>To the whole of the Courts’ opinion the counsel for the defendant excepted, and at their request it was filed of record.</p>

<p>obiigei s jointsewiTof* whr'naiu’re living, cMn.wt be supposed. If a bond be given to ten</p>

<p>In Error.</p> <p>A SUIT having been brought in the Court of Common ^pieas Df Lancaster county, by the defendant in error, against the plaintiffs in error, a case was stated for the opinion of the Court, to be considered as a special verdict, with liberty to either party, with the consent of the other, to introduce any new fact, which might be deemed material, and to remove CaSe bY WIÍt °f error*</p> <p>T, . . r ,. It was m substance as follows</p> <p>Joseph Terree died in the year 1804, seised of real estate in the township of Strasburg, Lancaster county, intestate, and leaving a widow, but no children. David Ferree, the only brother of the intestate, and the legal representatives of Jane and Lydia, his sisters, who were dead, were his heirs ' at law. David Ferree died intestate in the year 1806, leaving seven children, and the children of two daughters who were dead.</p> <p>After the death of David Ferree, viz. on the 25th December, 1806, his daughter Hannah, married John Elliott, for whose use the present suit was brought. In the following year she died, leaving issue a daughter, who died in the* same year. Letters of administration on the estate of his wife, were granted to John Elliott, on the 17th October,* 1809.</p> <p>On the 17th September, 1804, David Ferree petitioned the Orphans’ Court of Lancaster county, for a partition or valuation of the real estate of his late father, Joseph Ferree. On the 4th and 5th of December, 1804, an inquisition was held, which found that the estate could not be divided, without prejudice to, or spoiling the whole. It was, therefore, appraised, agreeably to the provisions of the intestate laws, and the heirs having severally appeared, and refused to take it at the valuation, an order of sale was granted, which was renewed from time to time, and finally, oil the 16th November, 1809, a sale took place, which was afterwards confirmed by the Court.</p> <p>The question submitted to the Court was, whether the plaintiff, as administrator of his late wife, was entitled to the whole of her share of her father’s estate, which had been thus sold.</p> <p>The opinion of the Court of Common Pleas, being in favour of the plaintiff, the defendants took a writ of error.</p> <p>referred to the Act of 2d April, 1804, 4 Sm. L. 184. Act of 7th April, 1807, 4 Sm. L. 400. Act of 26th March, 1808, 4 Sm. L. 519.</p> <p>cited 2 Powel on Cont. 84. Sugden, 133. 1 Fonb. 414. Yohe v. Barnet, 1 Binn. 364. 2 Yeates, 324, 5. 2 Hen. &. Munf. 58.</p>

<p>Prim-to the Act otthe 28th -of March, 1820, it was unnecessary to file a decíaration orstatemerit, before submitting a cause to arbitration; but if ‘thought pll per to file one, and it set forth do cause of action, he could</p> <p>call himself, on the i coord, the indorsee a single bill, it is not error.</p>

<p>Evidence ^tLfíiccUra. tions of a witness to contradict wha* he stated in his examination, or to shew that he did not tell the whole truth.</p> <p>After a levy upon real property in posse»,.on of the debtor, he cannot, with a view to defeat the creditor, transfer the possession, even to the real owner, who must pursue his title by an ejectment agaiust the purchaser at Sheriff’s sale.</p> <p>The Sheriff is not the agent of I he purchaser at Sheriff’s sale; therefore notice to the Sheriff, is not notice to the purchaser.</p> <p>A father agreed to sell real estate to his son. A d -ed was prepared, but not executed ; possession delivered ; and part of the put chase money paid. The son then sold to his brother, who went into possession, and paid mon-y. The estate was afterwards sold by the Sheriff, as the property of the lattei ; but between the levy and the sale, the father got into possession. In an ejectment by the purchaser against him, it was held, that it was incumbent on him to shew that his possession was free from fraud. Held also, That the declarations ot the sons were not evidence to affect the purchaser.</p>

<p>In ERROR.</p> <p>The record of this cause being returned from the Common Pleas of Lancaster county, it appeared to be an action of J . 11 debt, brought in the name of Simon Snyder, esq. Governor of the Commonwealth of Pennsylvania, successor of Thomas M'-Kean, Esq. for the use of Jacob Etter against John Wolfley and John Shortle, surviving obligors of Frederick Hippie, and Abraham Gish, to recover the amount of a prize drawn by Etter, in the Elizabethtown Church Lottery, of which / . ' /■» the defendants were managers, opposite to ticket, No* 4036, which was averred in the declaration to have been lost.</p> <p>On the trial, a book was produced, which Jacob Shaeffer swore he had received, with some others, from John Wolfley, out, and that he had given it to Abraham Etter, to sen tickets out of. On the death of Abraham Etter, this . ’ book was returned by his son to the witness. Susanna Etter proved, that Jacob Etter bought four tickets in the lottery Gf bis father Abraham Etter, about two years before it was ' J drawn*</p> <p>The counsel for the plaintiff, then offered the plaintiff himself to prove, that in the year, 1809, his pocket book was stolen from him in or near Harrisburg; that he pursued the thief about twenty miles, apprehended him, and recovered the pocket book, but, that on examining it, a ticket in the Elizabethtown Church Lottery, which was in it when it was stolen, was missing, and that he had never been able to find it since. This evidence, being objected to by the defendant’s counsel, was rejected by the Court. After having proved, that some of the entries in the margin of the book from which the tickets were cut, were in the hand writing of Abraham Etter, the evidence of the plaintiff to prove the loss of the ticket, was again offered and rejected; upon which the Court sealed a bill of exceptions.</p> <p>The counsel for the plaintiff afterwards proposed to prove, that John Wolfiey had admitted that Jacob Etter was the owner of the ticket which drew the prize for which the present action was brought, and that he had no other objection to paying it, than that the ticket was not produced. The Court overruled this evidence also, and sealed a second bill of exceptions.</p> <p>The Court, having been requested by the counsel for the plaintiff to instruct the jury that the ticket on which this suit is brought, being lost, it is not necessary that the plaintiff should aver in his declaration, or prove on the trial, that he had offered to indemnify the defendants against any claim which might in future be founded upon it, gave in charge, that to entitle the plaintiff to recover, it was necessary to prove the purchase of the ticket and the loss of it, and, that if he proved the loss, he would not be entitled to recover, unless he shewed that he had offered to the defendants an indemnity against any future claimant, of the competency of which, the jury were the judges; that in this case, there was no proof of the loss, and that their verdict should be in favour of the defendants.</p> <p>The jury found a verdict in conformity with the charge.</p> <p>to shew the competency of the plaintiff to prove the loss of the ticket, cited Douglass’s Lessee v. Sanderson, 2 Dall. 116. Meeker v. Jackson, 3 Yeates, 442.</p> <p>That there was error in refusing evidence of the admission of one of the defendants, that the plaintiff was the owner of the ticket which had drawn the prize, was too plain, he said, to admit of argument.</p> <p>He contended lastly, that it was not necessary, to entitle the plaintiff to recover, that he should give an indemnity against future claims, because no other holder of the ticket could recover. The Act of Assembly authorising the lottery, provides, that unless prizes are demanded within one year from the time when the drawing is finished, they shall sink into the fund, for the benefit of the church. The defendants are therefore fully protected by the lapse of time. In Meeker v. Jackson, 3 Yeates, 442, the plaintiff recovered on a lost bill of exchange, though he had not offered an indemnity previous to the suit.</p> <p>answered, that as there was no proof that the plaintiff was ever in possession of the ticket, the Court could not permit him to prove its loss.</p> <p>With respect to the evidence offered of the admission of one of the defendants, that the plaintiff owned the ticket, it was remarked, that as just before it was offered, the plaintiff had amended his declaration by inserting that the ticket was lost, which made it necessary to prove a previous offer of indemnity to entitle him to recover, to have heard any other evidence, would have been mere waste of time.</p> <p>The prize being payable to the bearer of the ticket, they argued, that no action could be maintained to recover it, without proving that the ticket had been destroyed. Where a bill of exchange has been destroyed, there may be a recovery at law, but, if it has been lost, the plaintiff cannot recover at law, though an indemnity be offered, but must resort to equity. 2 Campbell, 211. To shew that the plaintiff could not recover, without having offered an indemnity, 1 Burr. 459. 1 Taunt. 523. 4 Taunt. 603. 1 Vin. 341. 5 Vez.jun. 339. 6 Vez. jun. 812, were also cited.</p>

<p>submita^ause t0 the jury, in such a manner as to lead them ciPal fact.i3 matter ot law which the dSed^it is error.</p>

In Error, BAUGHMAN and others, the defendants in error, hav- . ■ . ?

.In ERROR. WRIT of error to Lycoming county. _ . Campbell, for the plaintiff in error, stated the question to be, whether an action would lie before a justice of the peace, for the balance due on a judgment in the Court of Common T>, , - , Fleas; and referred to the Act of 20th March, 1810, sec. 14, Purd. Di?. 339.

<p>In Error.</p> <p>THE defendants in error, the plaintiffs below, brought ejectment the Common Pleas of Lycoming county, for a tract of land Which they claimed under a sale for taxes, made under the Acts of 11th April, 1799, 3d April, 1804, and A4.i *nrxr\ ÁpTÚ^ 1809.</p> <p>At the trial, several exceptions were taken to the opinion the Court, both in deciding points of evidence, and in their charffe to the jury ; but as this Court gave an opinion on one exception only it.is unnecessary to state them. 1</p>

<p>In Error.</p> <p>ROBERT FINNET having renounced the administration of the estate of Barbara Hinds, deceased, which had been formerly granted to him, and Abner Moore having been / ° . 7 . • i ■ j appointed administrator de boms non, an issue was directed by the Orphans’ Court, in pursuance of which, they entered into an agreement for the institution of “ an amicable action, in case, to ascertain whether the defendant (Finney) had in his hands any assets of the deceased, and whether he was liable to the plaintiff for any money or property which may have come to his hands, as administrator of said deceased.” The declaration was in assumpsit, for money had and received by the defendant, for the use of the plaintiff. The pleas, non assumpsit, and payment, with leave to give the special matters in evidence.</p> <p>The Court having charged the jury, that under this agreement, and in this form'of action, the plaintiff was entitled to recover whatever assets came to the hands of the defendant, as administrator of Barbara Hinds, deceased, which were not administered by him,, nor delivered over to the plaintiff, found a verdict for the plaintiff, for two hundred and thirty three dollars, on which judgment was entered.</p> <p>that the judgment was' erroneous — .1. Because the administrator de bonis non could not recover of the former administrator money which had come to his hands ; though he might recover goods which remained in' specie unadministered. There was no privity between the two administrators, on which the law would raise an assumption. Allen v. Irwin, 1 Serg. Rawle, 549.</p> <p>2. Because in this form of action goods remaining in specie unadministered,.could not be recovered. If any action would lie, trover would be_ the proper form.</p> <p>that there was here such an implied contract as would support the action. Indebitatus assumpsit lies by an executor, against the attorney of an administrator, who had taken out letters of administration before the will was discovered, to recover money received by him belonging to the estate of the testator. A creditor could not maintain a suit against the former administrator, because he has been discharged by the Orphans’ Court. 1 Bac. Ab. 261. 5 Binn. 33. 1 Esp. N. P. 7. Purd. Dig. 495.</p>

Matthias Barber died intestate in the year 1803, leaving a small personal estate and one hundred and ninety-six acres of land. He left a widow and one child, and another ventre sa mere, which was afterwards born, and is still ing. The widow, the appellee, administered, and settled her administration account on the 16th of August, 1808, on which a balance appeared in her favour, of fifty pounds seven shillings and nine pence.

In Error. ERROR to Lycoming county, J ü J In pursuance of a rule entered by the plaintiff below, the defendant in error, this case was submitted to arbitration, under the Act of the 20th of March, 1810. The arbitrators awarded, “for the plaintiff, three judgments against the fendant, dated the 21st of December, 1813, amounting to one hundred and sixty-five dollars forty cents, together with interest.

<p>WRIT of error to Centre county.</p> <p>The defendant in error, fames Crawford, brought a suit against the plaintiff in error, Isaac M Kinney, on a soiy note, dated the 1st of April, 1816, drawn by Matthias Lightly, for ninety-three dollars fifty-four cents, payable on demand to M1 Kinney, by whom it was endorsed about eight months after its date. On this note, a suit was brought, before, a justice of the peace, by MlKinney, for the use Crawford, against Lightly, the drawer, in which a judgment was obtained, on the 14th of December, 1816. This ment was assigned to John Rankin, by whom an execution was issued, on the 27th of November, 1817, which was 7 7 7 turned “no body or goods.” Rankin then brought a suit against Crawford, before a justice, for money paid and expended on the judgment which had been assigned to him ; ■»»i» »« , « » i , and in this suit he obtained judgment, on the 3d of October ^ 1818. In this suit, M'Kinney was special bail, and a script of the justice’s docket, was offered in evidence by the plaintiff, for the purpose of shewing, that M1-Kinney knew that the money due on the note, had not been obtained from Lightly. The counsel for the defendant, objected to the admission of the evidence, but the Court overruled the ob jection, and sealed a bill of exceptions. Lightly having been taken on a bail-piece in the suit brought against him by Crawford, was committed to prison on the 23d of April, 1818, from which he was discharged by the Court of Commoa Pleas, under the Bread Act, as a poor insolvent debtor, The counsel for the defendant, offered to prove, that when he was discharged, he had a sufficient sum of money about him to satisfy Crawford’s judgment against him, wnich had been assigned to Rankin; but the counsel for the plaintiff, having opposed the admission of the evidence, it was rejected by the Court, who were of opinion, that the discharge was conclusive, unless it could be shown, that Rankin. and Crawford knew of, and were concerned in, the imposition ; which was not alleged.</p> <p>After the evidence was closed, the presiding Judge instructed the jury, that a note payable on demand is due instantly ; but for a short time after its date, might be presumed not to have been demanded, and might be endorsed, and considered as due, whenever presented for payment: That when such a note was endorsed, the law was clear that it must be presented in a reasonable time ; and if not paid, notice given to the endorser, as soon as conveniently possible: That if this note could have been so considered, had been so presented, and notice of non-payment had been so given to MiKinney, the endorser, he would have been liable to pay the money to Crawford, the holder, although Lightly, the drawer, had never been sued; or both the drawer and endorser might have been sued at the same time: That demand and notice of non-payment are what fix the endorser, and if no notice is given to the endorser, a suit against the maker will not supply its place; and the endorser will be discharged : But that where a note, payable on demand, is not negotiated for a long time after its date, it is considered as over due, though at what time it shall be so considered, is not perhaps settled : That a note had been considered over due at two months, though the time varied according to the circumstances and distance of the parties : That, in this case, eight months had elapsed, and as the parties lived near to each other, the note was to be considered as over due, and the law merchant as to demand and notice to the endorser, did not apply, and the endorsee took the note under an obligation to use all lawful means in due time to collect the money. His Honour then commented on the evidence, and concluded this part of the case, with submitting to the jury the question, whether the plaintiff had used due diligence in endeavouring to collect the money due upon the note from the drawer.</p> <p>The counsel for the defendant excepted to the opinion of the Court, and the verdict being for the plaintiff, sued out a writ of error.</p>

<p>In Error.</p> <p>THE record of this cause having been sent up on a writ of error, from the Common Pleas of Columbia it appeared to be an ejectment brought to August Term, 1817, by the plaintiff in error, to recover two tracts of land, to which he deduced a regular title from Blair who obtained patents for them on the 18th of February, 1775. The defendants claimed under a sale of the same land for taxes, by Andrew Albright, Sheriff of Northumberland county, of which Columbia county formerly constituted a part, by virtue of a warrant from the Commissioners of that county, dated the 12th oí September, 1805. One of the tracts was conveyed by Sheriff Albright to Adam Snyder, by deed dated the 27'th of August, 1806, and the other to George Langs, by deed dated the 20th of September, 1806.</p> <p>Upon the trial, several questions were proposed, upon which, at the request of the counsel for the plaintiff', the jury were instructed; but the Court being of opinion, that by the third section of the Act of the 3d*of April, 1804, the plaintiff was precluded from maintaining an action for the recovery of the land in dispute, because more than five years had elapsed since the sale for taxes, it becomes unnecessary to state them.</p> <p>The jury found a verdict in conformity with the opinion of the Court, upon which the plaintiff sued out a writ of error.</p> <p>The limitation imposed by the third section of the Act of 3d April, 1804, Purd. Dig. 638, on the institution of suits for the recovery of lands sold for taxes, should receive a construction consistent with reason and justice ; and not such a one as would put it out of the power of the former owner to inquire into the validity of the sale. In declaring that “ no action for the recovery of said lands should lie, unless the same be brought within five years after the sale thereof for taxes,” the Legislature could not have intended to prevent an action, after the expiration of five years, in cases in which it was impossible that any measures should be taken for a recovery within that period. The term recovery, implies an adverse proceeding through the medium of the law, which, since the Act of Assembly altering the form of ejectment, is impracticable, except where there is an actual adverse possession. The former owner, therefore, should not be deemed divested of the possession, until entry by the purchaser. While the old form of ejectment continued in use, a suit might be brought where the possession was vacant; but the Act of the 21st of March, 1806, Purd. Dig. 145, which prescribes the form in which alone the action can now be brought, renders it impossible to commence a suit for the recovery of land, unless there be some person in actual possession. The writ complains, that the defendant hath in his actual possession, a tract of land, &c. With regard to the land in controversy in this suit, no ejectment could be brought within the time supposed to be limited by the law', for the purchaser did not take possession within that period, and as he resided out of the county, and had no tenant on the premises, there was no one on whom process could be served. The Sheriff of the county in which the land lay, could not go out of his bailiwick to serve him with process, and the Legislature have not authorised it to be directed to the Sheriff of any other county. Unless then possession be taken by the purchaser, how is it possible lor the original owner of the land to protect himself? He may inquire for his tax with a view to pay it, and be informed that none has been assessed ; or his land may be sold in the name of another, without his knowing that a sale has taken place. But by giving the limitation a reasonable construction, and computing the five years from the time the purchaser enters into possession, an opportunity is given to the former owner to shew the irregularity of the sale, which it has been repeatedly decided, must be conducted with the closest adherence to the requisitions of the law ; while a contrary construction would entirely deprive him of such an opportunity, and place him at the mercy of the purchaser, who by delaying to take possession until the five years had expired, may forever shut the door upon an inquiry into the proceedings under which he claims,</p> <p>relied on the explicit and positive language of the Act of Assembly, which in express words shut out all inquiry into the manner in which the sale was conducted, unless an action were brought for the recovery of the land, within five years after the sale took place. The terms of the law were so clear, as to admit of but one construction ; and so they appeared to this Court, when they decided the case of Parish v. Stevens, 3 Serg. & Rawle. 298, in which precisely the same question was presented to them. The purchaser at a sale for taxes, is not bound to take possession, in order to give his adversary an opportunity of attacking him. Nor was the plaintiff in the present case deprived of an opportunity of asserting his claims in consequence of no entry having been made. The purchaser resided in the county in which the lands lay, five years immediately following the sale by the Sheriff, for Columbia county was not divided from Northumberland, county, which was the place of his residence, until 1st January, 1814. Besides, the supplement to the Act of 1806, passed the 13th April, 1807, Purd. Dig. 145, authorises an ejectment in all cases, where lands are claimed by a party ; which seems to imply that an actual adverse possession, is not necessary to entitle him to this remedy.</p>

<p>In Error.</p> <p>WRIT of error to the Common Pleas of Northumberland county, in a feigned issue directed by that Court, for the purpose of ascertaining whether a certain judgment obtained by the plaintiffs in error, who were also plaintiffs in the issue, against Thomas Robins, was entitled to be paid out of the proceeds of the sale of his real estate, in preference to a judgment obtained against him by the defendants in error.</p> <p>It appeared, that on'the 15th of November, 1810, Thomas Robins confessed a judgment for two thousand and ten dollars eighteen cents, in favour oi the plaintiffs, in the Court of Common Pleas of Northumberland county, which was entered as of November Term of that year, with a stay of execution until the 16th of April, 1811. Upon this judgment no execution issued, but on the 15th of April, 1816, a scire facias isstfed, returnable to April Term, 1816, to which the Sheriff n turned tarde venit. To November Term, 1816, an alias scire facias issued, on Which judgment was entered on the 23d of January, 1817. Under this judgment the lands of Thomas Robins were sold.</p> <p>The judgment under which the defendants claimed the money arising from the sale, was entered in the same Court on the 29th of August, 1812, for two thousand one hundred and thirty-one dollars six cents. Upon this judgment a scire facias was issued to January Term, 1815, on which judgment was entered on the 23d of the following November ; and to April 'Perm, 1817, a scire facias again issued, on which judgment was rendered on the 25th of the ensuing August.</p> <p>The judgment originally obtained by the plaintiffs, was admitted to be the oldest judgment on the records against Thomas Robins, against whom there were several other judgments, younger than that of the defendants.</p> <p>The cause was tried on the 18th of April, 1821, when the President of the Court of Common Pleas charged the jury to the following effect:—</p> <p>This is a feigned issue, directed by the Court to try whether the judgment of Abraham L. Pennock and Samuel J. Robins is a good and valid lien upon the estate of Thomas Robins; and whether it has been so revived under the Act of the 4th of April, 1798, as to continue the lien from the time it was confessed. This uidgment which was entered on the 15th of November, 1810, with a stay or execution until the 16th of April, 1811, it is admitted, is the oldest judgment against the estate of Thomas Robins. The j-udgxnent of Thomas and William Hart, was entered on the 29tti of August, 1812. By the Act of the 4th of April, 1798, it is declared, that no judgment shall remain a lien for a longer term than five years from the first return day of the term of which such judgment may be entered, unless within that term a scire facias be surd out to revive it. The judgment of Pennock and Robins, was not revived by scire facias within five years from the first return day of the term of which the judgment was entered, but a scire facias was issued, and returned tarde venit, within five years from the expiration of the stay of execution. On behalf of the plaintiff's, it is contended, that the five years commenced from the expiration ot the term limited for a stay of execution, and not from the first return day of the term of which the judgment was entered. It is certainly the rule in a scire facias post annum et diem, that the year and day commence at the expiration of the stay of execution. By that circumstance, the first impression was probably made upon the mind of the Court, that, in this case, the five years must commence after the expiration of the stay of execution. But that construction would not only be aga.nst the words of the Act, but, in the opinion of the Court, against its spirit and meaning, and would, in a great measure, destroy its beneficial effects. The scire facias after a year and a day, for the purpose of issuing execution, is solely for the benefit of the defendant in the judgment, who is supposed to be acquainted with the condition of the bond and the stay of execution. But the Act limiting the lien of a judgment to five years, is for the benefit of judgment creditors and purchasers, and not for the benefit of the defendant, and no good reason can be given why the lien should continue five years from the stay of execution. A judgment entered by an attorney, by virtue of a warrant of attorney, is for the penalty, and the condition of the bond is seldom stated upon the record. In such cases, judgment creditors or purchasers would not have it in their power to discover from the record, what the condition is, or whether there is a stay of execution ; especially in the case of bpnds of indemnity to' become due upon contingencies.</p> <p>The Court are of opinion, that the lien of the plaintiffs’ judgment is lost, in consequence of no scire facias having issued to revive it within five years from the return day of the term of which it was entered, and that the defendants’ judgment must be preferred. The Court are also of opinion, that the scire facias returned tarde venit, will not continue the lien. The scire facias sued out to revive the judgment, must be prosecuted with effect. Then the lien will continue from the issuing pf the original scire facias, agreeably to the provisions of the Act. The scire facias returned tarde venit, if it had been sued out in time, would not have Continued the lien of the judgment.</p> <p>To this opinion the co’unsel for the plaintiffs excepted.</p> <p>1. The first question is, whether the period of five years, to which the lien of a judgment.on réal estate is limited by the 2d sec. of the Act of 4th April, Purd. Dig. 306, is, in all cases, to be computed from the return day of the term in which judgment is entered? The strict letter of the Act, it is true, would lead to this conclusion j but the inconveniences of a literal construction are in some instances so great, that it ought to be departed from. Such a departure is fully sanctioned by the soundest rules of construction, which do not require the words of a law to be so interpreted, as to lead to inconveniences which the Legislature never intended to introduce. On the contrary, a liberal construction is always given to Acts of.Limitation such as this, which are thus made to meet the evils they were intended to remedy. The Act for recording deeds declares, that no deed or mortgage, shall be good to pass any estate, unless it be recorded within six months from its date ; yet these instruments are valid against subsequent purchasers or mortgagees, with notice of the prior deed or mortgage. The Act of Sd April, 1804, sec. 3, declares, that where lands have been sold for taxes, no action for the recovery of them shall lie, unless it be brought “ within five years from the sale thereof for taxes but notwithstanding the explicit language of the Act, it has just been decided, that the term of limitation commences at the time the purchaser enters into possession, and not at the time of sale.* Many other instances might be adduced, in which the letter of a Statute has been departed from, where its spirit and meaning did not require it to be strictly followed. These rules of construction are fully considered, and clearly explained in the case of The Bank of North America v. Fitzsimons, 3 Binn. 342, a decision upon the very Act now under consideration, which it was held protected subsequent judgment creditors from the indefinite lien of a judgment which existed at common law, as well as subsequent purchasers, although the preamble speaks of purchasers only. The fair construction of the Act of 1798, is, that the limitation runs from the time at which the record shews that execution may issue. If it were otherwise, there are cases in which a plaintiff would be deprived of the benefit of his judgment altogether. The scire facias issued upon a judgment, calls upon the defendant to shew cause why the plaintiff should not have execution. If, therefore, a scire facias should be taken out within the period during which execution was staid, this would be a sufficient answer to the writ, and the plaintiff would be defeated. Many cases may arise, in which the plaintiff would be restrained from issuing execution, until the whole term of five years had passed away. The judgment may be upon a bond payable by instalments, with stay of execution for five years or more : The record may be removed by writ of error, and the cause remain undecided during that time : There may be a motion to open the judgment, the decision of which may be protracted more than five years; and if under such circumstances, a scire facias were issued, the Court on motion, would quash it. What then is the situation of the plaintiff? Unless the five years are counted from the cesset, the plaintiff loses his lien, although it is impossible for him by any effort of his own to preserve it. The year and day within which execution must issue, to §ave the necessity of a sczVe facias, are always calculated from the expiration of the cesset, whether it be entered on the record, or be the result of agreement out of Court. Dunlop’s Lessee v. Speer, 3 Binn. 169. This, and the case oí Young v. Taylor, 2 Binn. 218, in which it was decided, than an execution issued within a year and a day, continues the lien of a judgment, without resorting to a scire facias under the Act of Assembly, substantially decide the present qui stion. The design of the Act was to prevent mischief to subsequent purchasers and incumbrancers, arising from their not being able to ascertain whether or not old judgments have been satisfied, and it fixes a certain period, after which it must be presumed that they have been satisfied. But where that presu r-ption is rebutted by circumstances which appear upon the record, the mischief does not exist, and of course the rule does not apply. It would be unreasonable to presume payment after the lapse of five years, when it appears to all the world that during a part or the whole of that period, the hands of the plaintiff were tied, and that he was prevented from pursuing those measures which were necessary to enable him to obtain payment.</p> <p>2. The first scire facias was sued out within five years from the expiration of the stay of execution, and that was sufficient, notwithstanding it was returned, tarde venit. It appeared on the record, and was as complete notice to third persons as if it had been served. The alias scire facias, which was issued after the intervention of a term, .nay be connected with the first by entering continuances. Lewis v. Smith, 2 Serg. & Rawle, 142. Ball. on Lim. 150. 153. Willes Rep. 258. 4 Bac. Ab. 483. 6 Bac. Ab. 105. 107. 1 Dall. 411. 7 Mod. 5. 4 Bac. Ab. 482. 6 Binn. 177. Robert's Dig. of Br. Stat. 239. 240.</p> <p>The Court are asked, not to give an interpretation to a law now in existence, but to depart so entirely from its provisions, as in fact to make a new law. • This departure is said to be required by the inconvenience which would result from a construction according to the plain language of the Act. That some cases of individual hardship may arise is very possible, and there are few laws under which they do not, but most of those which are dreaded in the present instance, are imaginary, and by no means equal to those which would follow, if the construction contended for on the opposite side should prevail. Thus in endeavouring to avoid some dimculties, others of greater magnitude will be introduced. The objection that no scire facias can issue until the stay of execution has expired, is easily answered. It is the voluntary act of the party to grant the stay, and he ought not to complain of the consequences. If a creditor wishes to give longer indulgence than five years, he may secure his debt by mortgage, instead of judgment, which would be free from all objections of this kind. But a better answer is, that the plaintiff may have a scire facias, notwithstanding it is not in his power to issue execution. A scire facias in the usual form, quare executio non, it is true would not answer his purpose, but a writ framed specially for the purpose of reviving the judgment under the Act of Assembly would, and it is has been usual in practice to insert a clause to this effect. Upon such a writ the Court would render a special judgment that the lien should continue five years longer. That such was the intention of the Legislature, is obvious from the 3d sect, of the Act of 4th April, 1798, which, after directing the manner in which the writ shall be served, declares, that the Court shall direct and order the revival of the judgment during another period of five years. With a scire facias framed to meet the exigency of the Act of Assembly, therefore, a cesset of the execution would not interfere. But the inconvenience to which subsequent purchasers and incumbrancers are liable, are not so easily got over. It is usual to search the records for judgments only five years back, and if no judgment be found, or scire facias upon an older judgment within that period, they consider themselves safe in advancing their money. It would be most injurious to them if they were obliged to carry their researches back to a period indefinitely remote, in order to ascertain the existence of ancient judgments, of which no notice was given by scire facias. The only question is, what is the meaning of the Act of Assembly ? Its language is entirely free Irom ambiguity, and declares, that the five years shall be counted from the first return day of the Term of which the judgment is entered. No considerable inconvenience can arise from an adherence to its letter, but great inconvenience will certainly flow from a departure from it. Can there be a doubt then, what ought to be its construction ?</p> <p>The preceding part of the argument has gone upon the idea, that a scirefacias was legally sued out, agreeably to the directions of the Act of Assembly, within five years from the expiration of the stay of execution ; but this was not the case. The first scire facias was taken out too late, and returned, tarde venit. It was, therefore, as if no writ had issued, and can have no effect in reviving the judgment. The second scire facias did not issue until a Term had intervened, andas this is process which cannot be connected by entering continuances, the second scire facias is the only one which can be considered operative. More than five years had elapsed after the stay of execution had expired, before this writissued, and therefore the judgment was not revived by either.</p> <p>In reply, it was said, that very few cases could be found, in which a special scire facias to revive a judgment had issued, and these few were not of late years. According to the construction given by the counsel for the defendants in error, there must be two writs of scire facias ; one to revive the lien, another to obtain execution. A judgment alive for the purposes of execution, and dead for the purposes of lien, is an anomaly.</p>

<p>In Error.</p> <p>WRIT of error to the Common Pleas of Lycoming county, in an action of ejectment brought by the lessee Edmund Hujf, the defendant in error, against Peter the plaintiff in error.</p> <p>Both parties claimed under Jesse Lukens. The plaintiff gave in evidence an application for three hundred acres land in the name of John Palmer, and a survey thereon of of one hundred and seventy acres on the 7th of October, 1771, on the official draft of which was the following dorsement, “No. 1109, Berks, now Northumberland, Paimer, now Jesse LukensP The defendant’s counsel objected to the readme- of the endorsement : but the Court overruled ° 7 the objection. Jesse Lukens died towards the end of the year 1775, and letters of administration on his estate were granted to his father, John Lukens, and his only brother heir, Charles Lukens, on the 13th of February, 1776. Oh the 22d of February, 1776, Charles Lukens, who, according to the law at that time, inherited all the real estate of his brother Jesse, executed a deed by which he couveyed all the lands and real estate in which his brother had any interest at the time of his death, to his father, John Lukens, subject to all the debts of his said brother. John Lukens died in the year 1789, and on the 20th of August, 1790, a patent for the land surveyed on John Palmer's application, was issued to his executors, Joseph. J. Wallis, David Lenox, and Abraham Lukens, in trust for the uses mentioned in his will. Peter Vincent, the defendant, shewed a title under this patent. The plaintiff claimed under Jesse Lukens, through a certain Levi Jones, who, having made an improvement on the land in dispute, and as it was alleged, an agreement for it with Jesse Lukens, was afterwards killed by the Indians, leaving a widow, but no children, and a brother, named Peter. No written agreement was produced, nor was there any direct proof of an agreement of any kind, between Jesse Lukens and Levi Jones, but the plaintiff offered in evidence a writing without date, signed by Charles Lukens, for himself and John Lukens, administrators of Jesse Lukens, to the following effect: “ John Lukens and Cha> les Lukens, administrators, &c. of all and singular, &c. of Jesse Lukens, deceased, do promise to convey to Levi Jones, a certain tract of land lying on the south side of the West Branch of the Susquehanna, at the mouth of Thangascootack Creek, he paying fifty pounds per hundred acres: the first payment to be fifty pounds without interest on the 1st May, 1778, and the remainder,in one year after.” On the back of this paper was the following endorsement, signed by Jane Jones, widow of Levi Jones, “ I do hereby assign over all my right, title, interest, property, claim, and demand, of, in, and to, the within assumption of John and Charles Lukens, as witness my hand. 24fü Deember, 1778.” The plaintiff also offered in evidence another writing, signed by “ Charles Lukens, one of the administrators of Jesse Lukens, deceased,” in these words: “ Carlisle, 1st March, 1779. Received of Edmund Huff, the sum of fifty pounds in part for a tract of land at the mouth of Thangascootack Creek, on the West Branch of the Susquehanna, sold by Jesse Lukens to a certain Levi jones; the land sold by said Lukens to said Jones at fifty pounds per hundred acres ; if any agreement should appear, by which the said Levi Jones ought to pay interest, it to be allowed by Edmund Huff-” On the back of this writing was the following endorsement, signed, '■'■Charles administrator.’’ “ On payment of the residue, I promise to convey the premises to Edmund Hujf or other legal representative of Levi Jones.” An objection was made by the defendant’s counsel to the admission of these papers, but the Court permitted them to be read. The deposition of Adam Walker was then offered by the plaintiff, objected to by the defendant, and admitted by the Court. The witness stated, that between the years 1781 and 1783, he saw Edmund Huff" pay fifty pounds on the purchase of Thangascootack in the witness’s house at Sanbury; “ that when said Huff made the payment, he said, * This is the amount of Thangascootack; it is mine now;’” that the widow Jones was present, and “ he understood that she was the wife of Levi Jones that was killed by the Indians on the Thangascootack bottom;” that there was a number of men present, one of whom was of the name of Lukens or Wallis, who got the money from Huff; that the widow Jones wanted it, but did not get any, and complained of not getting it; and “ that he understood that it was the former owner of the land that received the money from the said Huf.” The parts of the deposition which are in italics, were likewise objected to, but the objection was overruled by the Court. Several other exceptions to evidence, were taken during the trial, but were not insisted on afterwards.</p> <p>In charging the jury, the presiding Judge, when speaking of the deed of the 22d of February, 1776, from Charles Lu-kens to his father, John Lukens, said, that “by this deed, Charles Lukens conveyed to John Lukens all the real estate of Jesse Lukens, which he, as heir at law of Jesse, was then seised of; and this land would pass by that contract, unless the jury were satisfied that Levi Jones was then in possession, under a contract with Jesse Lukens in his life time. And as this was a conveyance without describing any particular tract, it could not be supposed that it was the intention of the par ties, that land should pass which had been previously disposed of.”</p> <p>To this opinion, a bill of exceptions was tendered by the counsel for the defendant, and sealed by the Court.</p> <p>The counsel for the defendant then requested the opinion of the Court on nine points which were submitted to them ; to the answers to the following of which, exceptions were taken:</p> <p>2. That Edmund Huff", from the papers produced by him in evidence, was a mere volunteer, not entitled to any equity which Levi Jones may have had ; and that the payment of money by him to the administrators of Jesse Lukens, for the lands in question, vested in him no right, without shewing that the title of Levi Jones had been transferred to him.</p> <p>Answer. As Levi Jones did not fulfil his engagement with the administrators of Jesse Lukens, they were at liberty to sell the land to Edmund Huff and receive his money, and the jury will judge whether they, or either of them, did sell and receive the money of Edmund Huff, and if so, Edmund Huff would not be considered as a mere volunteer ; and as Levi Jones was dead, and had no children, and no person came forward as his heir at law to perform his agr< ement with Lukens, Huff was not bound, after so great a lapse of time, to .shew any transfer to him from Levi Jones, or his legal representatives.</p> <p>4. That neither the paper signed by Charles Lukens, as administrator for himselj and John Lukens, promising to convey the land in question to Levi Jones, nor the paper dated December 24th, 1778, signed by Jane Jones, nor the paper dated, Carlisle, March 1st, 1779, signed by Charles Lukens, one of the administrators of J. Lukens, deceased, nor the endorsement thereon, signed by Charles Lukens, administrator, vests any title to the land in dispute, either in law or in equity, in the plaintiff, or entitles him to call for a conveyance from the heirs of Jesse Lukens.</p> <p>Answer. The papers referred to, do on the payment of the balance of the purchase money, entitle Edmund Huff, in law and in equity, to call on the heirs and legal represeutatives of Jesse Lukens, to convey to him the land in dispute.</p> <p>6. That privity or no privity, is a question of law to be decided by the Court, who are requested to state as the law of this ease, that no privity whatever exists between the plaintiff and the representatives of Levi Jones, and the representatives of Jesse Lukens, to entitle the plaintiff to a conveyance of the land.</p> <p>Answer. The payment of the purchase money by Edmund Huff, does give him an equitable claim upon the representatives oí Jesse Lukens for a conveyance. There is no evidence of any privity between Levi Jones, or his heirs and Huff; but if the jury believe that the administrators of Jesse Lukens have received of Huff the purchase money and interest in full, an equity arises in his favour, and they should have conveyed the land to him.</p> <p>7. That neither the plaintiff nor the representatives of Levi Jones, could recover under an equitable title, without first paying or tendering, the whole of the purchase money and interest, and all the money paid to the Commonwealth for the purchase money and patenting fees, and also tendering a deed to be signed by the representatives of Jesse Lu-kens, for the land in controversy.</p> <p>Answer. Unless Edmund Huff has paid the whole of the purchase money and interest due to the heirs or legal representatives of Jesse Lukens, of which the jury will judge, he cannot recover. But under the circumstances of this case, if he has paid all the money called for by the agreement, he may recover without a further tender of patenting fees, or a deed for the land claimed.</p> <p>8. That Charles Lukens, as administrator of Jesse Lukens, had no right to sell the land in dispute ; he having long before conveyed the fee to John Lukens, by deed dated 22d February, 1776, subject to the payment of the debts of Jesse Lukens ; the plaintiff not having produced in evidence any subsequent conveyance proved and recorded before the aforesaid deed.</p> <p>Answer. Charles Lukens was heir at law to his brother, Jesse Lukens, and co-administrator with his father, John Lukens ; and if he sold the land and received the purchase money, when the deed of 22d February, 1776, was not upon frecord, and the purchaser had no notice of that conveyance, it would affect John Lukens, his father, and co-administrator, as the land is not described in that deed. If Jesse Lukens had previously sold this property to Levi Jones, it would account for the subsequent transactions.</p> <p>9. That if the jury believe that Levi Jones made valuable improvements on the land before his death, the equity thereof would enure to his heir at law ; and a conveyance from Lem Jones to the plaintiff is not to be presumed, but the contrary ; particularly after the judgment against him in 1793, and the delay from that period until 1799, when this ejectmeut was brought.</p> <p>Answer. The law is conceded, that if Levi Jones had made valuable improvements on the land before his death, the equity thereof would enure to his heir at law, or legal representatives; and from the facts disclosed in this cause, a conveyance from Levi Jones, is not to be presumed ; but it is in evidence, that all the improvements of Levi Jones were destroyed during the war, and that he was killed by the Indians; and there is no evidence that he paid any money, or that any person ever appeared as his heir at law, to claim his contract with the admininistrators of Jesse Lukens.</p>

In Error. ERROR to Susquehanna county. . The plaintiff in error, who was the Brigade Inspector or the Second Brigade of the Eighth Division of Pennsylvania militia, demanded of the defendant in error, in the below, two thousand dollars, the alleged value of a brass field piece lent by the former to the latter. The cause was submitted to arbitrators, who awarded in favour of the plaintiff, twenty dollars and the costs of suit.

<p>In Error.</p> <p>THIS case came before the Court, on the return of a writ of error to the Court of Common Pleas of Union county, ¡n jt was an eiectment brought by David Lenox *» ° J against John and Caleb Farley9 to recovera tract of land in White Deer township,</p> <p>The title of the plaintiff was founded on an application, dated the 3d of April, 1769, in the name of William M'Cor-He, on which a survey was made by Charles L'tkens on the 23d of October, 1769. William M'-Corkle, bv deed dated the °f June, 1769, conveyed to Daniel M’-Fall, and by sundry mesne conveyances, the title was regularly brought down to Charles Lukens, who conveyed it to John Lukens, whose surviv"lng executors, David Lenox and Abraham Lukens, on the 8th of December, 1796, obtained a patent for the land, for the use of the heirs of John Lukens. To September Term, 1797, an ejectment was brought by the executors of John Lukens against Caleb Farley; and on the 11th of October, If98, a trial took place, when a verdict was returned in faVour of the plaintiffs. A judgment was entered on the verdiet, on which an habere facias was issued, returnable to December Term, If 98, but was never executed. David Lenox survived Abraham Lukens.</p> <p>The defendants contended, that the deed of the 30th of June, 1769, from M'-Corkle to M'-Fall, was a forgery; but the evidence in relation to this part of the case was extremeshght. The defence rested chiefly upon the Act of Limitations, in support of which it was proved, that in the year If86, Jacob Ant was in possession of part of the tract, and had from six to nine acres cleared and under fence. He said he was in possession under M’-Corkle, the original owner ; but there were several persons of that name, and to which of them he referred, did not distinctly appear. In the winter of the year 1787, he sold the cleared land for six shillings an acre, to Caleb Farley, who moved on the premises in the following Marchj and continued in possession ever since, and from time to time, made some additions to the cleared land. The defendants offered in evidence, two papers which Caleb Farley had received from M'-Corkle, (from which of the M-Corkles did not appear) about the year 1787, and had ever since remained in his possession. One of them purported to be a draft of a survey on William M'-Corklé’s application, .signed by Charles Lukens. On the face of the draft the following words were written, '■'■James M'-Corkle claiming under William M'-Corkleand on the hack of it Was written, “No. 1539, Berks. James M'-Corkle, in right of William M'-Corkle, 319 acres. Ret.d into the Surv. Gen-l’s office.” This draft was signed “ Charles Lukens,” without any thing to indicate that he was the deputy purveyor; nor was it directed to the Surveyor-General. The other paper purported to be an order from John Lukens, the Surveyor-General, directed to Charles Lukens, deputy surveyor, to make a survey on William M'CorkMs application. It was signed ‘■‘■John Lukens,” but the hand-writing of John Lukens was not proved, nor was the paper found in the office of the deputy surveyor, Charles Lukens.' The counsel for the plaintiff objected to the admission of these papers in evidence, and the Court rejected them ; upon which an*exception to their opinion was taken. The counsel for the defendants were requested by the counsel for the_plaintiff, to state the object for which these papers were offered. This they declined .doing; but on being required by the Court, they said that they offered them for the purpose of shewing title in the defendants and out of the plaintiff. Exceptions were also taken to the opinion of the Court, in rejecting several depositions offered by the counsel for the defendants; but as these exceptions were afterwards relinquished, it is unnecessary to notice them more particularly. The defendants also gave in evidence a deed from Robert M'-Corkle (who, they alleged, was the brother and heir of William,) to James M'Corkle, dated the 10th of January, 1773; and another deed from the same Robert M'Corkle to Caleb Farley, dated the 30th of August, 1807.</p> <p>The following passages in the charge of the Court were excepted to by the counsel for the defendants:</p> <p>“ If the jury should believe that Ant lived on the land as an improver, although he claimed to M'-Corkle's boundaries and Farley came in under him, Farley could only be protected by the Statute of Limitations, as far as he actually occupied. By the late decision of the Supreme Court, he would not be protected by his constructive possession of the remainder. He would only hold to M'-Corkle's boundaries, from 1807, the date of M’-Corkle's deed to him, under which his pretext of title first commenced.”</p> <p>Again: “ From the time of the commencement of Farley's title under M'-Corkle, which was not until his deed of 1807, there would not be twenty-one years previous to the commencemeat of this ejectment; only about six years.”</p> <p>Further : « If Farley purchased Ant's possession, as a tenant, it would not be such a semblance of title, as would protect him beyond his actual occupancy, unless there was a connection between him and M'-Corkle."</p> <p>Part of our defence was, that the deed from William M'-Corkle to Daniel M'-Fall was forged; and the papers mentioned in the bill of exceptions were offered to show that the title had passed from William M'-Corkle to his brother James, under whom we claimed. The long possession, ever since 1787, of original papers relating to the land in dispute, accompanied with possession of the land itself, was strong evidence of a right to the original application derived through James, by descent from Willia?n, and in this point of view these papers ought to have been admitted. Besides, they were evidence that the defendants held under colour of title, and were therefore protected by the Act of Limitations, in their possession of the whole tract. The survey was evidence also, because it showed that Charles Lukens, through whom the plaintiff deduced his title, had notice that the land was claimed by James M'Corkle. The cases of Evans v. Nargony, 2 Binn. 55; Boyles v. Johnston's Executors, 6 Binn. 125; and Vincent v. Lessee of Huff, 4 Serg. & Rawle, 298, are con-elusive to shew, that the words written on the face and back of the draft, tending to shew the interest of James M'Corkle , . m the land, are evidence.</p> <p>There was parol evidence, that Caleb Farley claimed under Fluoride's title, as far back as 1787. Thus he was in under colour of title, which extended his possession to the whole tract, and gave him the benefit of the Act of Limitations as to the whole, unaffected by his purchase of another title from Jacob Ant, who was an improver. The Court was therefore wrong in instructing the jury, that Farley's title under M'-Corkle did not commence until the deed of the 30th of August, 1807. The Court charged, that if Farley purchased from Ant, as tenant of M'Corkle, yet his possession would not extend as far as M'Corkle's lines. This was certainly wrong, for if Farley bought of Ant who was in possession under M'Corkle, according to M'Corkle's boundaries, Farley's possession was co-extenaive with that of Ant.</p> <p>When the papers in question were offered in evidence, no proof had been given, that Farley had purchased of M*Corkle, and therefore no colour of title derived from him, appeared at that time; nor was any claim under him'shewn, until the deed of the 30th of August, 1807. The cases cited in support of the opposite argument only prove, that endorsements made by a deputy surveyor on official surveys, are evidence of ownership; but as the draft offered in evidence was not an official paper, and was found in no public office, they are obviously inapplicable. The order, purporting to be signed by John Lukens, was neither an original paper, nor a certified copy of one, nor was there even proof of the genuineness of the signature. To argue that such a paper was not evidence, would be waste of time. The defendants’ counsel were called upon at the trial to specify for what purpose these papers were offered; but they made no mention of the Act of Limitations, and merely said that the object of them was to shew title out of the plaintiff and in the defendants. They were therefore properly rejected.</p> <p>In 1787, Caleb Farley purchased of Jacob Ant, an improver, between whom and M'-Corkle there was no privity, the land which Ant then had in cultivation. By the recitals in the deed of 30th August, 1807, it appears, that until that period the title remained in the M'-Corkle family. Under * " these circumstances, the Court charged, that when Farley purchased from Ant, his possession extended no further than Ant's enclosures, and in this they were clearly right. They were no less clearly right in that part of the charge which forms the subject of the last exception. 1 heir meaning obviously was, that if Farley purchased from Ant, without the privity of M'-Corkle, he could not extend his actual possession by resorting to the lines of M'-Corkle's survey.</p>

<p>In Error.</p> <p>ERROR to the Common Pleas of Luzerne county, in •' an action of debt on a bond in the penalty of five hundred dollars, conditioned for the performance of the award of bitrators on certain matters in dispute between the plaintiff and defendant. The plaintiff in error, was plaintiff below, The declaration set forth the condition of the bond, averred that the arbitrators had made an award in favour of the plaintiff, for the sum of one hundred and twenty-five dollars, and assigned as a breach of the condition, that the defendant had not paid the sum awarded. The defendant pleaded, that the plaintiff and himself entered an amicable action fore a justice of the peace, which by the agreement of the parties, was referred to the arbitrators mentioned in the condition of, the said bond; that the said arbitrators made award, that he, the defendant, should pay to the plaintiff the sum of one hundred and twenty-five dollars, which award was returned to the said justice, who thereupon entered judgment for the plaintiff, for the sum of one hundred and twenty-five dollars aforesaid; and that the said judgment was removed by certiorari to the Court of Common Pleas of Luzerne county, and reversed. To this plea the plaintiff demurred, and the defendant joined in demurrer.</p> <p>In delivering the opinion of the Court of Common Pleas on the demurrer, the President observed, that “ The principle decided by the Supreme Court, in the case of M'Killip v. M‘Killip, 2 Serg. Razóle, 489, must govern this. That was an action of debt on a bond to recover two hundred and fifty-six dollars fifty-six cents, the amount of an award made by referees in an amicable action before a justice of the peace. It was there determined that the award was not good, either under the Act of Assembly, or at common law. It is true, this case may be distinguished from that, in several particulars. In that case, the award was for the defendant, no judgment had been rendered thereon, nor had the proceedings been quashed on certiorari. But according to the usual mode of reasoning, this case comes more clearly within the rule established than that. The Chief Justice in delivering the opinion of the Court, in illustration of his argument, to shew the propriety of the principle about to be settled, hypothetically puts this precise case, and then affirms, that the conclusion of law to be drawn from it, “ is too plain to admit of a doubt” Thus bound by the opinion of the Supreme Court, we direct judgment to be entered in this case upon the demurrer, in favour of the defendant.</p> <p>This suit being debt upon an arbitration bond, the reversal of the judgment before the justice, on a certiorari, has no effect upon it. The case of M'Killip v. M'Killip, 2 Serg. & Rawle, 489, which was relied upon by the Court below in deciding this case, was essentially different. It was not a suit on an arbitration bond, but an action of debt on a bond con? ditioned for the payment of money, in which the defendant attempted to set up in bar, an award of referees in his favour, for more than one hundred dollars, made in an action instituted on the bond, before a justice of the peace. The award, being for an amount beyond the jurisdiction of the magistrate, was held to be a nullity. But in the case under consideration, the plaintiff has a complete remedy at common law, without resorting to the proceedings before the justice. •The bond was conditioned for the performance of an award which the referees were authorised to make, independently of any authority derived from the justice, and on that bond, this suit is brought.</p> <p>All the proceedings between the parties were before a justice of the peace, and to these proceedings the bond had reference. The condition must be construed to bind the parties to abide a good award. But the award set forth in the declaration wras void, because it was not within the jurisdiction of the tribunal before which the suit was instituted ; for a justice of the peace cannot give judgment on an award of arbitrators, for more than one hundred dollars. M'Killip v. M'Killip, 2 Serg. & Rawle. 489. And the agreement of the parties cannot give jurisdiction, where it does not otherwise exist. The case just referred to, it must be confessed, seems to have been misapprehended by the Court below, who supposed the action to have been debt on a bond conditioned to perform an award. Nevertheless, the rule established by it, is strongly in favour of the defendant.</p>

<p>In all cases ©f promises express or implied, made to or by an administrator after the death of the intestate, the action lies by or against the administrator personally. Where, therefore, an administrator gave a receipt, in that character, for money paid to him by mistake, it was held, that the action to recover it back, must be against him personally.</p> <p>And if the administrator, in such a case, has administered the money in payment of debts of the intestate tdthout notice of the mistake, lie may plead this matter specially, and if he can prove it, nnd that the estate of the intestate is insolvent, he is protected.</p> <p>Where an account with a receipt at bottom, left it doubtful whether a sum of money had been paid by a partnership, or by one of the partners in his individual capacity, it was held> that it ought to be suffered to go to the jury, with permission to the party offering it, to explain the obscurity ijy other evidence.</p>

In Error. THIS case, which came before the Court on a writ of error to Centre county, was argued by Burnside, for the plaintiffs in error, and by Blanchard and Potter, for the defendants in error. ,

In ERROR. WRIT of error to the Common Pleas of Nort-hurnberland county, in which the opinion of the Court, filed at the request of the counsel for the defendant, accompanied the , record. , The action in the Court below, was an ejectment for acres seventy-seven perches of land. The plaintiff, John Hower, was the owner of three contiguous tracts of land, . surveyed on applications of 3d Aprtl, 1769, in the names of Thomas Foster, Robert Jewell, and John Sprogel.

In Error. ERROR to Northumberland county, in an action of debt 0n bond, in the name of the Commonwealth, for the use of Daniel Hurley, against John B. Campbell, constable of Au- and the sureties in his official bond, in which the following statement of facts was returned with the re- , Cora l On the 20th of April, 1818, the defendants entered into a bond in the penalty of one thousand dollars, conditioned for the faithful performance of the duty of constable by John B.…

In Error. ERROR to the Common Pleas of Bradford county, i» an action of ejectment brought b.y the plaintiffs in error against the defendant in error.

<p>conspiracy to overt act need te setforth. In an in-</p>

In Error. ERROR on a bill of exceptions to the rejection of evidence by the Court of Common Pleas of Mijflin county. The plaintiff below, Thomas Mitchell, brought this action against William Brisbane, on a promissory note for fifty dollars.

<p>In Error,</p> <p>ON a writ of error to the Court of Common Pleas of . , Union county, the case was as follows:</p> <p>On the 28th May, 1817, a suit was commenced by Peter Richter, the plaintiff in error, against Anthony C. Selin, the defendant in error, on a promissory note drawn by Marshall Goughler, dated August 7th, 1816, for 1688 dollars 58 cents, payable eight months after date to Anthony C. Selin or order, by whom it was endorsed in blank and delivered •to Nathan Dunn, who endorsed it specially to Peter Richter, the plaintiff. On the 16th of September, 1817, the defendant appeared and confessed judgment. The Court on the ■20th February, 1818, granted a rule to shew cause why the judgment should not be opened and the defendant let into a defence, and after argument the rule was made absolute. On the 31st January, 1820, the suit was marked to the use of Samuel G. Wright and William Newbold, assignees of Nathan Dunn.</p> <p>The evidence, so far as is now material, was as follows : — - Marshall Goughler, the makers of the note, who were merchants in Selin's Grove, purchased goods of Corlies £s? Na-glee, merchants in Philadelphia, to the amount of 1444 dollars 64 cents. They also purchased goods of Nathan Dunn to the amount of 367 dollars 58 cents. Corlies Ss? Naglee were' indebted to Nathan Dunn in two promissory notes, amounting together to the sum of 1321 dollars, and it was agreed by them, that Dunn should transfer these notes to Marshall &? Goughler, and that Corlies tí? Naglee should receive them in part payment of their demand against Alarshall Goughler. On the 5th August, 1816, Dunn wrote to Marshall £i? Goughler, informed them of the declining circumstances of Corlies Naglee, which would result in their making an assignment in a few days, and told them that he held these two notes, which he proposed to endorse to them, that they might set them off against the debt due by them to Corlies 8? Naglee, provided they would give him their note in lieu of them ; and for rendering this service he offered to give them one hundred dollars. In pursuance of this arrangement, Dunn transferred the two notes of Corlies Naglee to Marshall tí? Goughler, and took their note endorsed by the defendant, for the amount of those two notes, together with the amount of his account against Marshall fc? Goughler. This was the note on which the present suit was brought, Marshall ci? Goughler never presented the notes they had received from Dunn to Corlies <¿? Naglee, but after Marshall ei? Goughler had been sued and confessed judgment, and after Selin had confessed in this suit, they enclosed them in a letter, and sent them on to Selin. Marshall Goughler were insolvent.w Dunn made an assignment for the benefit of his creditors,on the 27th August, 1816, to Wright Sí Newbold. Corlies £i Naglee made an assignment for the benefit of their creditors, on the 10th August, 1816. In addition to the pleas of non assumpsit, and payment, the defendant pleaded specially,a set-off of the two notes given to Dunn by Corlies Si Naglee, and endorsed by him to Marshall £i Goughler. When these notes were offered in evidence, they were objected to by the plaintiff’s counsel, who offered to prove that they did not come to the hands of the defendant until after the commencement of the suit. The Court, however, overruled the objection, and the notes were given in evidence, upon which a bill of exceptions was tendered and sealed. The defendant then offered the deposition of Benjamin M. Hollingshead? after having proved that notice of the time and place of taking it, had been served on Peter Richter, the plaintiff on the record. An objection was made by the counsel for the plaintiff to the reading of this deposition, but the Court permitted it to be read, and sealed another bill of exceptions.</p> <p>It was proved by several witnesses, that Nathan Dunn was in Selin’s Grove about 1st January, 1817, when he was seen with Marshall and Goughler, but was not seen by the witnesses in that place, either before or since.</p> <p>A witness was produced by the plaintiff, who swore that Goughler and Selin came together to his house, and requested him to draw an assignment on a deed from the former to the latter, of a house and lot in Selin’s Grove, which he did. Se~ lin said that he had gone bail for Goughler, for 1200 or 1500 dollars, which he expected he should have to pay, and therefore he wished to make himself safe as well as he could. The assignment bore date 6th June, 1817.</p> <p>The defendant, for the purpose of shewing that the indemnity given by Goughler to Selin, to secure him in the event of his being obliged to pay the note in question, had failed, first read an article of agreement between Mathias Drumbaugh and Marshall Goughler, for the sale of the same property, dated December 27th, 1816, and then proved that the property had been sold under a judgment entered against Marshall Goughler on the 24th January, 1817, and all the proceeds of the sale appropriated to the discharge of liens existing at the time of the sale to Selin; that Selin had never been in possession, and had received no part of the money arising from the sale.</p> <p>The plaintiff produced the ledger of Marshall Goughler, proved by Goughler, and offered it in evidence without stating for what purpose it was offered. But the Court, on an objection being made by the counsel for the defendant, rejected the evidence, and an exception was taken to their opinion.</p> <p>Mr. Lachells, after having sworn that since Dunn had left the United States, he had corresponded with Wright, one of Dunn’s assignees, and had received information and instructions from him in relation to this suit; that he did not inform Wright that he had made him a party7 to the suit, nor how it was brought; that he had corresponded with him on the subject for more than a year, and had considered him, since the commencement of the correspondence, as interested in the suit, offered Peter Richter, the plaintiff on the record, as a witness. An objection was made to his admission by the defendant’s counsel, which the Court maintained. An exception was taken to their opinion.</p> <p>The evidence being closed, the President of the Court delivered a charge to the jury, in the course of which he instructed them to the following effect: •“ The law is well settled, that before the endorser becomes liable for the payment of a note to an endorsee, it is necessary that payment should be demanded of the makers, when the note becomes due. Notice within a reasonable time to the endorser, of the demand upon the makers, and their refusal to pay, are the conditions upon which the endorser can be made liable for the payment of the note. The endorser, by placing his name upon the note, does not thereby7 engage to pay it at all events. His engagement is conditional. The time of notice depends upon the distance the drawers and endorser reside from each other. The demand upon the makers, and their neglect or refusal to pay, and notice of these facts to the endorser, are conditions pre- « 1 cedent, and must be performed before a right of action accrues to the endorsee. In this case there, is no proof that the makers of the note were ever called upon to pay it before the acti.on was commenced; from which it clearly appears that at the institution of the suit, the plaintiff had no cause of action against the defendant, and could not recover unless the defendant has subsequently made himself liable for the payment of the money. To this general rule there ■ are some exceptions. In case notice be not given within a reasonable time, the endorser may become liable by a promise to pay, which would be considered a waiver of notice, and a new agreement. But that the endorsee may maintain the action against the endorser, the promise should be made before the commencement of the suit. In this case, the defendant, though not liable for the payment of the money at the commencement of the action, confessed judgment at the return of the writ, by which act he made himself liable, if the jury should believe that he was acquainted with his situation and had a knowledge of his rights, that no imposition was practised to induce him to confess a judgment, and that the note was not fraudulently obtained ; but if he was unacquainted with his rights, or any imposition was practised upon him to induce him to confess the judgment, he would not be liable. These are facts for the jury, but in determining them, the jury may take into their consideration, the situation of the defendant who is not a merchant, and consider whether it is probable he would have been willing to confess judgment for a debt which he was not bound to pay, if acquainted with his situation. The Court have also stated, that if the defendant was induced to confess judgment by an imposition practised upon him, he would not be bound by it. As to the circumstances which led to this confession ©f judgment, there is but little evidence. One circumstance however does appear in evidence. On the day and at the 'time this judgment was confessed, Goughler assigned to the defendant, a deed for a house and lot in Selin’s Grove to indemnify him, as was alleged, which house and lot have since been sold for the payment of Marshall & Goughler’s debts, upon a judgment obtained before the assignment, which, under the circumstances, was clearly a lien on the property.</p> <p>“ It has been contended for the defendant, that the note was fraudulently obtained by Dunn, and could not, under the circumstances, be recovered against Marshall Es? Goughler,the makers. Fraud poisons all contracts. Whether or not the note was fraudulently obtained is . a fact for the jury to determine from the evidence. Fraud cannot be presumed ; it must be proved. The principal circumstance relied upon, is the time when, and the purpose for which, the two notes drawn by Corlies & Naglee were delivered to Marshall & Goughler. If they were bona fide delivered to them before the assignment of Corlies Es? Naglee, for the use of their creditors, and not with a view to that assignment, they would have been a proper set-off against the demand which Gorlies Es? Naglee had against Marshall Es? Goughler ; and the transaction would have been a fair one. But if the jury believe that Dunn, instead of delivering these notes to his assignees, retained them in his own possession and in January, 1817, delivered them to Marshall Es? Goughler, and obtained the note in question, with a design that these notes should be set off against the account which the assignees of Corlies Es? Naglee held-against Marshall Es? Goughler, and that he should appropriate their note to his own use, this being after the assignment of Corlies Es? Naglee for the use of their creditors, would be a fraud on the creditors, and the assignees, upon discovering, the circumstances, would never permit these notes to be brought in by Marshall Es? Goughler as a set-off against their account; and it appears, by the production of those notes in Court, that the assignees of Corlies Es? Naglee have not as yet received them. If those notes were transferred to Marshall Es? Goughler after the assignment of Corlies Es? Naglee, the assignees of Corlies Es? Naglee could maintain an action for the whole amount of their demand against Marshall Si Goughler, who would not be entitled to set off the notes against it. If therefore the plaintiff or the assignees of Dunn, could recover upon the note on which this suit is brought, Marshall Es? Goughler, or their endorser, would be compelled to pay the money twice : first to the assignees of Corlies Es? Naglee, and again to the assignees of Dunn. But whether these notes could be made a set-off or not,, would depend not-altogether on the time they were delivered to Marshall Es? Goughler. If the money was bona jide due from Corlies Es? Naglee to Dunn, he or his endorsees would be entitled to receive of the assignees of Corlies Es? Naglee, such a proportion to the dollar, as they were able to pay their creditors. Cor lies fva his deposition, states, that it .was understood they were to receive the two notes given them by Dunn, from Marshall Es? Goughler, in part payment of their debt. Corlies Es? Naglee could make no such agreement after their assignment ; but if made before, it would be good, provided the notes were delivered to Marshall Es? Goughler before the assignment. The assignees of Corlies <§• Naglee would be liable to pay the assignees of Dunn those notes or their proportion of them, at any time before the expiration of six years, within which, by an Act of Assembly called the Act of Limitations, actions on promissory notes or book accounts must be commenced.”</p> <p>To the whole of the charge of the Court, the counsel for the plaintiff excepted, and also to the answers given by the Court, to the following points, on which their opinion was requested :</p> <p>1st Point. “ The defendant having confessed judgment for the amount of the note on which this suit is brought, a previous demand upon the drawers and notice to the endorser, need not be proved, but will be presumed. And even if he confessed judgment under a mistake as to his liability, on account of a want of consideration, that will not destroy the legal presumption of his having had due ' notice of the non-payment by the drawers.”</p> <p>Anszuer. “A confession of judgment by the defendant, with full knowledge of his rights and situation, would be a waiver of his right of a previous demand on the makers of the note. But if the confession of judgment was obtained from him when ignorant of his rights and by imposition, it would not be a waiver of his right to notice of a demand upon and non-payment by the drawers.”</p> <p>2d Point. “ If the two notes given by Corlies §* Naglee to Nathan Dunn were received by Marshall 8$ Goughler before Cor lies Sf Naglee made an assignment, Marshall Sf Goughler were entitled to set them off against the debt due from them to Corlies Naglee; and if Marshall <|* Goughler received them before they had notice of the assignment, they were entitled to set them off.</p> <p>Answer. “ If the jury believe that Marshall <$* Goughler received these notes before the assignment, they could set them off against the account which the assignees of Corlies Naglee had against them, unless they received them zvith a view to that assignment. But if they received them after that assignment, and after they had notice of it, with a fraudulent intention, they could not set them off.”</p> <p>3d Point. The answer to this point being favourable to the plaintiff, it is unnecessary to state it.</p> <p>4th Point. “ If the jury believe that Marshall fy Goughler purchased the two notes of Corlies Naglee from Nathan Dunn at a discount, with full notice of their anticipated insolvency, they could not set up want of consideration as a defence ; they having taken the notes at their own risk; particularly if at that time Marshall & Goughler were indebted to Corlies Naglee to an equal or larger amount than the notes.”</p> <p>Answer. “ If Marshall <§• Goughler took the notes of Cor-lies <$• Naglee at their own risk, and could make no defence against them, the defendant could make no defence. But if they received them to make a set-off, and not at their own risk, not being able by law to make a set-off, there would be a failure of the consideration of this note to the amount of the loss on Corlies <Sf Naglee's notes.”</p> <p>5th Point. “ If there was a good consideration for part of the note on which this suit is brought, the plaintiff is entitled to recover for such part.”</p> <p>Answer. “ The plaintiff would be entitled to recover the balance, after deducting the amount of the notes of Corlies Naglee, provided the defendant has, by his acts, dispensed with a demand upon the makers of the note, and provided the whole transaction was not fraudulent, with a view to defraud the creditors of Corlies <ff Naglee.”</p> <p>. 6th Point. w If the notes of Corlies fy Naglee came to the hands of the defendant after the commencement of this suit, he cannpt give them in evidence under thp plea, of set-off.”</p> <p>Answer. “ He could not; and they have not been so offered by the defendant.”</p> <p>7th Point. “ There being no evidence that Corlies Na-glee or their assignees, were ever called upon for payment of these two notes, nor any evidence of notice having been given to Nathan Dunn, the endorser, of non-payment, the defendant cannot make them a set-off.”</p> <p>Answer. “ They have not been offered as a set-off, nor could they be so offered,”</p> <p>8th Point. “ If the assignees of Dunn have agreed to the transfer of the note on which this suit is brought, by Dunn to Richter, the transfer is valid, even if made after Dunn’s assignment for the use of his creditors.”</p> <p>Answer. “ The transfer would be valid, if authorised by Dunn’s assignees.”</p> <p>9th Point. “ If the jury should believe that the note on which this suit is brought, was not signed by the drawers and endorsed until January, 1817, yet if the drawers had received a good consideration therefor at the time it bears date, and the endorser knew the contents of the note, it is, a valid contract, and the note would take effect from the time it bears date.”</p> <p>Answer. “ It Would,, if a bona fide transaction and the defendant had dispensed with a demand upon the makers of the note. The antedating alone Would not destroy the note.”</p> <p>10th Point. “ If, at the time the defendant purchased the house and lot in Selin’s Grove, he had no notice of the articles of agreement made between Matthias Drumbaugh and William Goughler, he would hold the same discharged from the judgments entered against William Goughler, before the deed from Drumbaugh to Goughler was executed; there being, no execution issued on these judgments until after the de« fendant purchased.” .</p> <p>Answer. “ The Court are of opinion that the judgment against Marshall 8? Goughler was a lien upon the house and lot; and whether the defendant had notice of the articles of. agreement or not, they could be sold, and a good title made to the purchaser. The articles were part of the defendant’s title. Pie derived his title from Goughler and was bound to take notice of the articles.”</p> <p>In this Court seventeen errors were assignéd, in the admis»' sion and rejection of evidence, and in the opinions delivered by the Court of Common Pleas to the jury, upon the questions arising in the case.</p> <p>who cited Browne v. Weir, 5 Serg. & Rawle, 403. Wilt v. Franklin, 1 Binn. 514. M'Allister v. Marshall, 6 Binn. 347. M'Menomy & Townsend v. Ferrers, 3 Johns. 71. Colhoun v. Snider, 6 Binn. 135; and by</p> <p>by whom Heylyn v. Adamson, 2 Burr. 676. 4 Bac. Abr. 730; Levy v. Gadsby, 3 Cranch. 180. 185. Donaldson v. Means, 4 Dall, 109, 110. 4 Bac. Ab. 727. Barrow v. Paxton, 5 Johns. 258. 8 Johns. 384, were referred to.</p>

<p>■ If the plaintiff declare in assumpsit for bl-eaoh of promise to convey laud, he may amend the declaration by setting forth again the breach of contract, blended with complaints of frand ; for substantially it is declai ing in assumpsit.</p> <p>The plea of “ not guilty” in assumpsit, it cured by verdict.</p> <p>If the jury, in addition to their verdict, find matter merely superfluous, such finding does not affect the verdict.</p>

In Error. THIS was a suit, brought in the Common Pleas of Northumberland county, in the name of the Commonwealth, for the use of Peter Lazarus, against William Shannon, She-°f tbe said county and his sureties, on Shannon’s official bond.

<p>In Error.</p> <p>WRIT of error to the Court of Common Pleas of Northumberland., on a scire facias against the administrators of . . . J ° Christian Miller.</p> <p>From the evidence given in the Court' below, as exhibited the recorch ^ appeared, that to January Term, 1814, an action was commenced in the name of the Commonwealth, for the use of Hugh Bellas, esq. against Daniel Lebo, Sheriff of Northumberland county, Christian Miller, the intestate of the present defendants m error, and several other persons, who, together with Miller,.were the sureties of the Sheriff, in his official bond, on which the suit was brought, fot not paying over to Mr. Bellas, certain fees received by the Sheriff, to which he was entitled. The cause was arbitrated, and the arbitrators made a report, finding for the plaintiff the sum of sixteen hundred and seventy dollars fifty-eight and a half cents. Various executions were issued in the course of several successive' years, against all the defendants, on which the Sheriff was urged, without effect, to sell the personal property of Lebo, who, however, paid from time to time’ several sums on account. On the 13th January, 1818, Mr. Bellas and Lebo, without the consent of Leb'o’s sureties, entered into an arrangement, by which among other things, it was agreed, that the venditioni exponas, then in the Sheriff’s hands, under which he had been directed to sell Lebo’s personal property, should be staid ; “ that an alias fieri facias should issue, returnable to January Term, 1818, to which a return should be made of a levy upon Lebo’s real estate at Sunbury, which should be considered as condemned by an inquest at January Term aforesaid ; that the plaintiff should be at liberty to issue a venditioni exponas for the sale of the said real estate, returnable to April Term, 1818, or any subsequent Term ; and that the said aliasfieri facias should issue for the balance of the debt, deducting the costs out of the partial payments, and deducting the balance of the payments from the interest as it accrued, and then from the debt, if there should be any surplus, towards the reduction of the debt.” About a year after this-agreement was entered into, íebo’s personal property was sold under an execution in another case, and the proceeds of the sale appropriated to the satisfaction of that execution. Christian Miller, one of Sheriff Lebo’s sureties, having died, this scire facias was issued, calling upon his administrators to shew cause why they should not be substituted in his place as parties, and also why execution should not issue on the, judgment.</p> <p>At the conclusion of the trial, the plaintiff requested the Court to charge the jury on the following points -</p> <p>1. That the plaintiff is entitled tp the amount of thejudgment5 with legal interest, according to the agreement of 13th January, 1818, deducting the payments which have been made, and the balance, if any, of monies received since the judgmpnt.</p> <p>I'o this point the Court answered, that the jury were to judge from the evidence, whether any money was due to the plaintiff, and if any, what sum.</p> <p>2. That the agreement of 13th January, 1818, the relinquishment of Lebo's personal property, and the Sheriff’s returns to the executions given in evidence, did not discharge the estate of Miller from any part of the debt.</p> <p>The answer of the Court was, that the plaintiff, having taken the property of Lebo in execution, and afterwards returned it to him, against the consent of his sureties, had discharged the sureties to the amount of the property taken in execution.</p> <p>3. That the plaintiff is entitled to recover the amount exhibited by his calculation, (a statement of which accompanied the record) provided the jury think the data or facts on which the calculation is founded, are supported by the evidence.</p> <p>The Court* said, that this was a matter for the jury to judge of, from the data and the correctness of the calculation.</p> <p>A verdict having been found for the plaintiff for four hundred and twenty dollars, ninety-eight cents only, he removed the cause to this Court by writ of error.</p> <p>complained that the Court of Common Pleas gave no answer to the first and third points submitted to them, involving the questions, whether the judgment in the original suit bore interest, and the manner in which it was to be calculated. Act of 1700, Sm. L. 7.</p> <p>They further insisted, that in instructing the jury on the principal point, whether the Sheriff’s sureties were exonerated by the plaintiff’s acts, the Court had injured the plaintiff by stating, without any evidence to support the assertion, that the discharge of Lebd’s personal property was against the consent of the sureties. But waiving this circumstance, the Judge was wrong in point of law. The sureties are bound according to the nature of the bond, by which, in this instance, they are equally responsible with the principal, and when a judgment is obtained upon it, the plaintiff may at his pleasure levy upon the property of either. 4 Dall. 97. (notes.) 2 Serg. & Rawle, 22. A release under seal, given to one co-obligor, it is true, discharges the other ; but if it does not possess this strict technical character, it has no such operation. Therefore, where two are bound jointly and severally, a receipt in full to one on his payment of half, or a covenant not to sue one, does not discharge the other. Rowley v. Stoddard, 7 Johns. 207. Harrison v. Close, 2 Johns. 448. Nor is the refusal Of a creditor to sue the principal, on being requested by the surety, a discharge to the surety, though the principal proves insolvent. 2 Johns. Chan. Rep. 554. Dehuff v. Turbett, 3 Yeates, 157. The agreement between the plaintiff and Lebo, was not only not a release under seal, but it relinquished no part of the debt, and merely substituted a levy on the real, for that which had been made on the personal estate. From the levy on the personal property, no satisfactionh-esulted. It was relinquished at the request of the defendant, and was therefore as if it had never been made. If the goods of the principal are taken in execution by the Sheriff, but not sold, nor satisfaction received, the surety cannot, in an action against him, plead the levy in discharge of his own responsibility. 2 Shower, 394. 2 Tid. Prac. 937. Cro. Jac. 300. 2d Ld. Raym. 1072. 2 Bac. Abr. 725. 8 Johns. 209. 339. But whatever distinctions might bavk existed in favour of the surety, as the parties to the bond were respectively bound, these distinctions were lost when the bond' was merged in the judgment, which placed all upon the same footing.</p> <p>with respect to the first point said, that they did not contend that a judgment did not carry interest, but that it was uncertain at what time the plaintiff had received certain sums belonging to Lebo, consisting of Sheriff’s costs, which were to be deducted from the amount of his own claim, and therefore it would be impossible to. know how to calculate the interest. If it was the plaintiff’s object to obtain the Court’s opinion, whether the judgment bore interest, the question was proposed in such a manner, as was not calculated to produce the answer he wished.</p> <p>rebnquishment of the levy on Lebo’s personal pro-petty, they argued, was a discharge of the sureties pro tanto. Property sufficient to satisfy a part of the debt, was in the plaintiff’s power, which by his own voluntary act he abandoned, in consequence of which, the property was swept away by anothercreditor, and he lost an opportunity of being paid. If the goods of the defendant to the amount of the debt are levied upon, the defendant is discharged from the judgment, and all further execution, although the Sheriff does not satisfy the plaintiff, 2 Sound. 47. (note 1.); still less can the defendant’s surety be charged in execution, where a levy has been made, which the creditor does not think proper to avail himself of. Even where the relation of principal and surety does not exist, the discharge of one, where two are jointly bound, is the discharge of the other. As if there be a joint capias ad satisfaciendum against two, and one is discharged, the other cannot be taken. 2 Bac. Ab. 719. The principle on which the defendants in error rely, is well set-tied in equity. If time be given to the principal, without the consent of the surety, the latter is no longer answerable. United States v. Hillegas’s Exrs. Wharton’s Dig. 272. If a fund belonging’to the principal, be in the hands of the,creditor, and he relinquishes it-, which is precisely this case, the surety is exonerated pro tanto. 4 Ves.jr. 829. 1 Madd. Ch. 190, 191. 10 Johns. 587. 2 Caines’ Cas. in Err. 1. The distinction attempted to be set up between the responsibility of the surety before and after the judgment, has the merit cf novelty, but nothing more. It is not to be found in any of the books, and is unsupported by reason. The judgment follows the nature of the bond on which it is founded. It is a joint jddgment against the principal and his sureties, who are protected against the acts of the creditor to their prejudice, exactly to the same extent that they were before judgment.</p>

<p>To entitle recover pos^£aM]'iord ai»’Tenant Marchflr72, «notueeessary, where the. given his temonths before t0fthe^lmseT tion ofthe emanas . termine the lease, must give notice three months before the expiration ot the year.</p>

In Error. THE plaintiff in error, Alexander Hill, brought an acllón on the case, in the Common Pleas of Butler against Josiah Crawford, the defendant in error, which referred to arbitration. The arbitrators filed a report in vour of the defendant, and awarded the sum of four hundred and nine dollars, sixty-seven cents to be due to-him.

In Error. WRIT of error to Allegheny county. On the 21st of January, 1818, a judgment was before a justice of the peace, by the plaintiff in error, Christopher Brannan, in favour of Hugh Kelley, the defendant in error, for four hundred and fifty-three dollars six cents ; and on the 19th of February following, a transcript of the judgment was filed in the Court of Common Pleas.

<p>A promisposited for collection in one oftheBmiks Banks,>’ passdrawnpayaBa^: is „ot Iiable t0 defaloation.</p>

In ERROR. ON a writ of error to the Common Pleas of Allegheny county, the opinion of the Court, in an action of ejectment, brought by John Reading, the defendant in error, against William Peebles, the plaintiff in error, was returned with the record. It was filed at the request' of the counsel for the plaintiff in error, and contains all that is material in the case.

„ In ERROR. ON the trial of this cause in the Court of Common Pléas . evi-of-Allegheny county, after the plaintiff had closed his evidence, the defendant moved for leave to add the plea of setanc^ stated, that under it, the same matters would be proved, which had been given in evidence on a former trial. The Court overruled the motion, and an exception was taken to their opinion.

In Error. THIS was an action oí'replevin brought in the Common Pleas of Allegheny county, by the administrator of William M that Roberts had such a special property in the articles placed in his possession, as authorised him to dispose of them. The party who places confidence in another, should be the loser by his breach of faith, and not an innocent purchaser. He cited Hartop v. Hoare, 1 Wils. 8. 6 Bac. Ab. 684, 2 Saund. 47 b. note. Coggs v. Bernard, 2 Ld. Ray. 917, 911.

In Error. ERROR to Allegheny county. , . Held: that service of the writ, even, on the person of the defendant, must be ten days before the return. The regularity of the service of the writ, which is essential to the validity of a judgment under this Act, should appear upon the record, and such is the positive requisition of the law.

<p>In Error.</p> <p>WRIT of error to Indiana county, on a bill of exceptions to the opinion of the Court in an action of ejectment brought by John Cowden, the plaintiff in error, for the recovery of a tract of land, formerly the property of William. P. Brady, one of the defendants. The following are the material circumstances of the case: On the 14th of . j ji 1807, Cowden obtained a judgment for a debt due to him from Brady, in the Court of Common Pleas of Northumberland county. On this iuderment a testatum fieri facias • ‘ t ,. Jo J J issued to Indiana county, returnable to August li rrn, 1809, which was levied on the land in dispute. An inquisition was held, and the land condemned. A testatum venditioni exponas was issued to November Term, 1809, which was turned, unsold, &c. No further proceedings were had, until an alias venditioni exponas was issued to November Term, 1813, which was also returned, unsold. The next process was a pluries venditioni exponas, to January, 1816, which * 1 7 J J 7 . 7 n t t was not taken out of the office. A second pluries venditioni exponas was issued to April, 1816, by virtue of which the land was sold to the plaintiff, to whom the Sheriff gave a r ’ “ deed dated the 14th of June, 1816.</p> <p>The executors of James M. Kelly took defence for seventy- . , , . , , , . , eight acres or the land m controversy, which they claimed under a judgment obtained by Thomas IIaye against William P. Brady, in the Court of Common Pleas of Indiana county, at March Term, 1811. Proceedings were had upon this judgment, until the land was sold by the Sheriff to James M. Kelly, by virtue of an alias venditioni exponas, returnable to March Term, 1814. The Sheriff’s deed to Kelly was dated the 16th of June, 1814.</p> <p>The Court of Common Pleas directed the jury, that « James M. Kelly and his executors, had a prior and better right than John Coto den to the said seventy-eight acres, and that the plaintiff was not entitled to recover the same; but that he was entitled to recover the residue from William P. Brady.”</p> <p>referred to the Act of the 22d of May, 1772, Purd. Dig, 201. Act of the 21st of March, 1772, Purd. Dig. 201. Young v. Taylor, 2 Binn. 229, (opinion of Yeates J.)</p> <p>referred to the Act of the 20th of March, 1799, Purd. Dig. 201.</p>

<p>22Jj£;£$¡of 1817, «reiábought by or a£alnst c°rP°rations/ is not confined corporations. 0f a corpora/¡"heípi-esident, chief officer, cashjel.; treasurer, nor secretary, is not authorised to pealfroman award of arbitrators*</p>

In Error. ON the return of a writ of error to the Common Pleas Somerset county, it appeared that James Mitchell., the plaintiff below, brought an action in the nature of a writ of conspiracy, against David Penrod and Alexander Morrison, t*le defendants, in which he declared, in substance, that Morrison, having on the 18th of April, 1816, contracted with Stoystoxon and Greensburg Turnpike' Road Company, to ma^e a certmn part of the road, at fifteen dollars fifty cents per…

In Error. A RULE having been granted by the Court of Common ^eas °f Washington county, on the plaintiff below, the defendant in error, to shew cause why the appeal entered by _ * i j him in this case, from an award of arbitrators, should not be sct as^ei u appeared, on shewing cause, that on the 10th of March, 1819, the case was referred to arbitrators under the Act of the 20th of March, 1810, who on the 9th of July following, filed an award in favour of the defendants.

<p>Error cannot be assigned in a matter collateral to the action. Hence, where after a sale oí lands under an execution, it was submit-Court to destatement"of facts, whether the actionfor* ajudgment creditor, was entitled to the brought by the Sheriff into Court, more than sufficient to pay the debt and costs, it was held, that the opiCourtofCommon Pleas ject to revioferror"Wit</p>

In ERROR. WHILE this action was depending in the Court Common Pleas of Fayette county, it was submitted to trators, under the following special agreement: . “ It is agreed, that this cause be referred, to fames D. Cope, Andrew 0liphant, and Thomas Irwin, esqs.; either ty to reduce to writing all legal points and objections made by him; and the referees to reduce to writing their decisions thereon, and to report the samé, with their award upon the matters in dispute.

In Error.. THIS case came before the Court, on a writ of error to Fayette county. , In delivering the opinion or the Court, the Chief Justice bas rendered a farther statement unnecessary. '

<p>Where there is a rule 0f Court, for-read, if the witness lives within forty ccmrt°unL?ss he be sick or tend, a depowit" lives within taken°under a ^ plaintiff, who chooseto U3e of it, cannot be read by the f^witness^ faas been sufparty, f^p^fthat he is sick or tendí*t0 at"</p> <p>tain and crew 1?nd ?avisa’ Uon, is not evidence. Evidence of usage or custom, fixing the construction of the words,Ci inevitable dangers of the river,” in a bill of lading for the transportation of goods by inland navigation, is admissible.</p> <p>An usage or custom, varying the liability of common carriers by water, from that of the common law, may be proved.</p>

In Error. IN this case, an amicable action was entered in the Court of Common Pleas of Westmoreland county, by agreement in writing signed by John Reed, attorney, tor Gtlbert, the plaintiff, and by David Cook Henry Barton, the defendants, in the presence of two subscribing witnesses, The agreement was headed with an account by the plaintiff against Messrs. Cook & Isott, amounting to seven hundred and twenty-eight dollars' forty-five cents, for goods as per bill rendered.

<p>In Error.</p> <p>WRIT of error to Indiana county.</p>

<p>m^° stole a dog, is</p>

<p>If it does gppeá^tha/a witness is in-Court will not because his evidence has been received.</p> <p>For the purpose of destroying the validity of a paper set up as a will, evidénce may be given, that in consequence of a paralytic stroke, some time before the execution of the paper, the testator’s intellects were much impaired, and continued so until the time of its execution, and after-wards. ,</p> <p>A witness who is called to impeach an alleged will, on the ground of the mental imbecility of tbe testator, may be asked, on the cross examination, whether he has not accepted a devise under ahewill.</p> <p>If evidence be rejected, not because it is incompetent, but because it is offered at an improper time, it is not error.</p> <p>A \\ itness may be asked, whether she knew, whether or not the eye-sight of the testator was good enough to have enabled him to recognise her, when near her, if his mind had been right.</p> <p>A witness may be permitted to testify, that he “visited the testator; he would look at him with a vacant stare; after speaking with him, and telling him who he was, he would answer; his countenance and appearance indicated childishness.”</p> <p>Evidence, that the wife of the testator obseived to a witness, in the presence of her husband, afi that he did not attend to business, that he was incapable,” to which the husband said nothing, is admissible.</p> <p>Where the validity of a will is impeached, on the ground of the incapacity of the testator and of fraud in pi ocurmg it, and an earlier will is attempted to be established, a cancelled will, in his hand writing, and found among bis papers, made at an antecedent period, when his understanding was unquestionable and he was not assailed by intrigue, may be given in evidence, to show what were then his intentions as to the disposition of his property, and also to show his manner of cancelling a will which he meant to annul.</p> <p>Where a man retains a revocable instrument, such as a will, and with a full opportunity to revoke it, does not do so, a strong presumption arises that he wishes it to stand, though at first it may have been unfairly obtained from him. But no such presumption can arise, where, soon after the execution of the instrument, he is taken ill and dies: or where, from the time of execution to his death, his intellects are in too weak a state to judge, of the pi-'iprr ty of rt vocation. The jury are to judge, whether the testator was in such a .ta« of mind, asenabled him to judge of the propriety of cancelling a will obtained by fraud or umn<* influence.</p> <p>The jury may infer incapacity to make a will irom facts anterior to its execution.</p> <p>Entries* made by a testator in a book, are a circumstance in favour of the sanity of his mind, but not coni iurive. The weight to which such evidence is eniith d, rests with the jury.</p> <p>The Court are not hound tochaige the jury, whether any facts have been given in evidence, from which a legal presumption enu be raised of such fraud, as would be sufficient to invalidate a will. The most they can do is, to instruct the jury, what the law would be, in case the jury should be of opinion that certain facts were well proved.</p> <p>Whore there is no evidence ofiufirmity of mind at the time of thf execution of a will, and the subscribing witnesses are uncontradicted, infirmity may be inferred from anterior and subsequent fac\°</p> <p>The Court are not bound to answer an abstract question.</p> <p>An inference of infirmit> of mit.d umnot be drawn from a conversation between the testator and a witness, without disclosing to the jury, what the conversation was,</p>