Volume 8 — Watts's Pennsylvania Reports

Sarah Hannah against William Swarner. Ejectment for a tract of land. “ The jury found the following special verdict, upon which the parties agree, that the court shall render a judgment, with leave to either party to sue out a writ of error without oath or bail. “On the 6th of April 1815, Joseph Smith died, having first, on the 6th of March 1815, made his last will and testament, by which he directs his executor to sell all his estate, real and personal, and out of the…

<p>The cashier of a bank cannot avail himself of the statute of limitations to defeat an act'on on his note by the bank, unless he can show clearly a performance of all his duties in relation to the note, in exhibiting the same as due and unpaid, to the board of directors. The knowledge of the president or of individual directors of the bank, that the note was due and unpaid, is not a fact from which negligence can be inferred on the part of the bank, so as to allow the operation of the statute in favour of the cashier.</p> <p>Fraud may be successfully replied to a plea of the statute of limitations.</p>

<p>In this case will be found a statement of the duties and liabilities of trustees, in the management of the trust fund.</p>

<p>If the court below arrest a judgment erroneously, upon a writ of error, the Supreme Court will enter judgment upon the verdict.</p> <p>Quere? Whether a judgment upon a verdict for the defendant in replevin may be arrested, for want of sufficiency in the defendant’s pleas.</p> <p>A defendant in replevin may plead property in himself, or in a stranger, either in bar or in abatement, and either plea, if established, will defeat the plaintiff’s right of action. So, also, may the defendant plead property in the plaintiff and himself,,and if true, it does not only defeat the plaintiff in his suit, but entitles the defendant to a return of the property.</p> <p>If a declaration in replevin describe the property with a certainty to a general intent, it will be sufficient. But after a trial, and verdict for the defendant, a plaintiff will not be permitted to avail himself of a want of certainty in the description of the property in his own declaration.</p>

<p>Mutual demands do not necessarily extinguish each other by operation of law: set-off is permissive, not compulsory; and if there be no agreement between the parties, either may hold and set off his claim, or, if he choose, assign it and leave the other party to his legal remedy.</p> <p>In the appropriation of the proceeds of a sheriff’s sale, though a party claimant has a prior judgment, yet, if insolvent, he shall not take the money raised, to the prejudice of a subsequent judgment creditor to whom he is bound as surety for the payment of his judgment.</p> <p>The assignee of a judgment takes it subject to all the equities existing between the assignor and other persons at the time.</p> <p>The fact of an assignment of a judgment having been filed of record with the papers, does not dispense with the necessity of calling the subscribing witness to it.</p> <p>One who has assigned a claim as a collateral security for the payment of a debt due by him, is incompetent to testify in a suit brought to recover that claim, although released by the person to whom he made the assignment, if it appear that he had previously been discharged under the insolvent laws, and made a transfer for the benefit of his creditors.</p> <p>Entries in a book, of payments made for another, may he given in evidence, if accompanied by proof that the person had constant access to the books and assented to the entries.</p>

Ejectment. Daniel -Umbehauer and Henry Umbehauer against Andrew Aulenbaugh. The land in dispute was the estate of Francis Umbehauer, who died intestate, leaving a widow and issue seven children. The title of all the children became vested in Peter Umbehauer, by conveyances.

<p>ERROR to the common pleas of Lebanon, county.</p> <p>Henry Newman against Benjamin Rutter. This was an action of ejectment to recover two lots in Newmanstown. It appeared that the late proprietors granted the land including the lots, in 1741, to Walter Newman. In 1765, Walter Newman, by deed, conveyed the lots in question to Frederick Moore, in fee, reserving eight shillings rent on each lot, payable annually on the 26th of August. By the terms of this deed, a counterpart of which was executed by Frederick Moore, it was stipulated that if the rent should be in arrear sixty days, the owner of it might distrain; and if sufficient distress should not be on the premises, that he might' enter upon the lots and repossess them, as though the deed had not been made. Moore also covenanted to pay the rent, and build a house of certain dimensions, within a year from date of the deed, on each lot.</p> <p>' Plaintiff showed title to the rent, reserved by Walter Newman, as follows: In 1772 Walter Newman made his will, which was proved in 1774, by which he devised the rent of the town of New-berry to Henry and David Newman. Henry Newman, by his deed dated 23d March 1775, conveyed his share of these rents to Peter Newman. Peter Newman by his will, dated in 1790 and proved in 1791, 26th April, devised one half of Newmanstown to plaintiff. It does not appear that Peter Newman had any estate in Newmanstown, except his share of these rents. Also, the last will and testament of Peter Newman, dated the 26th day of August 1790, with probate thereof, dated the 26th day of April 1791.</p> <p>The plaintiff further offered in evidence a certified copy of proceedings in the orphans’ court of Dauphin county, 20th June 1786, being a report and confirmation of sale of David Newman’s land, by Magdalena Newman, with deed from Magdalena Newman, administratrix of David Newman, to Christian Seibert, for the moiety or half part of Newmanstown and sixty-three acres of land, with a deed from Christian Seibert and wife to Francis Seibert, dated the 19th day of April, 1793, and with the last will and testament of Francis Seibert, dated February 9, 1811, proved November 4, 1811; with parol proof that the town rents of Newmanstown were separately collected by those persons who claimed under David Newman and those under Henry Newman, for forty years preceding this time; and, connected with said offer, called John M. Forster, a witness, who being duly sworn, said: “ That he searched in the recorder’s office of Dauphin county, two or three weeks ago, to see if he could find any deed of partition for these lands, between David Newman and Henry Newman, or any persons claiming under them; that he used the general index books, but could not find any deed of that kind; that he searched all the records from the organization of the county till within two years, and thinks he examined the whole general index, and found no deed or agreement of partition, or any thing of the kind; and that the recorder’s deputy assisted him in making the search, but that he did not call on the deputy or the recorder to search or certify.”</p> <p>To which offer of evidence so made, the defendant objected: that the copy of the proceedings in the orphans’ court of Dauphin county, is not a copy of the whole record; that the copy of order of sale, and whole proceedings relating thereto, should be produced; no evidence that David Newman died intestate, or of the appointment of his widow, Magdalena Newman, administratrix; and that the search made in the recorder’s office of Dauphin county was not sufficient. Which objections to the copy of the record of the orphans’ court were sustained, and the same was rejected; to which opinion of the court, the plaintiff excepted.</p> <p>The plaintiff, then, for the purpose of showing partition, or division, of the tract of one hundred and twenty-eight acres, between those claiming under the devisees of Walter Newman, offered in evidence the deeds and papers' mentioned in their former offer, with parol proof that the said Francis Seibert, and those claiming under him, have held possession since the year 1805, and have held and exercised exclusive ownership of the said sixty-three acres, including the one half of Newmanstown; and that Henry Newman, the other devisee of Walter Newman, and those claiming under him within the said time, to wit, from the year one thousand eight hundred and five, or thereabouts, to the present time, have exercised exclusive ownership over the remainder of the said tract of one hundred and twenty-eight acres, including the other half of Newmanstown; and that the two lots for which this ejectment' is brought, is located in that of the said tract last mentioned; with further parol proof that search has been made in the recorders’ offices in Dauphin and Lebanon counties, for deed or agreement of partition in the premises, and none such has been found.</p> <p>To which offer of evidence the defendant objected—that no title has been shown in Magdalena Newman; that parol evidence of partition is not admissible; that the search in the recorder’s office was not sufficient, and that the parties should have been inquired of; and that a deed of partition is valid without being recorded. Which objections were sustained, and the evidence offered rejected, to which the plaintiff excepted.</p> <p>Defendant, to maintain the issue on his part, called John Pearson, who,being duly sworn, said: “ I live in Newmanstown, near these premises, and am acquainted with them.”</p> <p>(The plaintiff here, with permission of the court, examined this witness to show his interest in the issue trying, and in answer to questions by the plaintiff, he said: “ I have a lot in Newmanstown; had an agreement to resist the payment of ground-rent; have no agreement now; the agreement was in writing, but it is aside now; I think the defendant has the agreement; he, the defendant, was in the agreement; it was part of the agreement, that we should pay the expenses among us. I think suits were brought against us before the agreement; can not say right wheth'er before suit brought; it was shortly before or after suit brought.”)</p> <p>And upon cross-examination by the defendant, witness said: “ I always thought I would pay my share of expenses, but think, am not bound. I signed no writing by which I was bound to pay any cost in this suit. We signed a writing to Zimmerman, that he should clear us of ground-rent, but we took up that agreement again. I have no bargain with defendant, to make me pay expenses of this suit. I intend to pay, but am not bound to pay.</p> <p>The plaintiff then objected to the further examination of the witness, in chief, on the ground of interest, which objection was overruled, and the plaintiff exqepted.</p> <p>The defendant further offered in evidence, a receipt from plaintiff to defendant, dated the 36th of August, for ground rent of the two lots, for the year 1831, in order to show that plaintiff, by receiving rent, had waived the forfeiture for not erecting buildings on the lots, if there had been a necessity for such erection. To which offer and evidence the plaintiff objected, as irrelevant, and because there were two covenants, one for payment of rent, and one to build. Which objections were overruled by the court, and the evidence admitted: to which opinion of the court the plaintiff excepted.</p>

The Commonwealth against William Wagner, administrator of Ferdinand L. Spangler, deceased. This suit was brought on the official bond of Michael H. Spangler, brigade inspector of the first brigade of the fifth division of the Pennsylvania militia.

<p>ERROR to the common pleas of Berks county.</p> <p>Andrew Bixler, administrator of Jacob Bixler, against Simon Blankenbiller, administrator cum testamento annexo of Simon Blankenbiller, deceased.</p> <p>This was an action on the case for a legacy, in which the defendant pleaded in abatement of the suit, that no refunding bond had been tendered before suit brought.</p> <p>The court below abated the suit, which was the error assigned.</p>

Samuel Boyd, William Boyd and others, against Jason W. Eby and The Associate Synod of North America. Reigned issue of devisavit vel non to try the validity Of the will of James Neal, deceased. Upon the trial, the plaintiffs offered in evidence a letter of Jason W. Eby, dated the 10th of March 1838, to Robert Slemmens, one of the plaintiffs, for the purpose of showing his opinion of the condition of the testator at that period. The defendants objected, 1.

James Hoopes and Wife against Jesse Brinton and Mills Hays, executors of John Brinton, deceased. Special verdict, to determine the amount of interest with which the defendants were chargeable upon the settlement of their administration account of the estate of John Brinton, deceased.

The Commonwealth for the use of Thos. Todd, administrator, of . Thos.' Beale, deceased, against Samuel Stuart. Debt on recognizance. The plaintiffs intestate, and the defendan thád each been sheriff of Mifflin county, and this action was brought by the plaintiff to recover fees of his intestate, which had accrued while he had been in office, and which had been collected by the defendant.

<p>ERROR to the common pleas of Dauphin county.</p> <p>Alter, Taylor & Dewey against Henry C. Berghaus. Debt on promissory note.</p> <p>During the progress of the trial of this cause, the plaintiffs offered in evidence their book of original entries, charging George H. Berghaus with goods sold and delivered, with proof by a disinterested witness that the original entries are in the hand-writing of Solomon J. Dewey, one of the plaintiffs.</p> <p>The defendant objected that Solomon J. Dewey was himself competent to make the proof, and that the fact of his absence was not sufficient to make way for secondary evidence. The court rejected the evidence, and the plaintiff excepted.</p>

Andrew Murry, treasurer of Dauphin county, against Charles Carson and Charles C. Rawn, Esq. The defendants became the purchasers of an unseated lot in Portsmouth, from the treasurer at a sale for taxes. May Hum- The defendants moved the court for a rule upon the plaintiffs attorney to file his warrant of attorney by the 20th January, inst.

This was an action of ejectment for twelve tracts of land, in which Thomas Elder, Esq., was plaintiff, and the heirs at law of Bartram Galbraith, deceased, were defendants.

<p>The death of a plaintiff in an action of partition, after judgment quod partitio fiat, does not abate the writ; but though the writ does not abate, the surviving plaintiff cannot have execution on his judgment, but must take out a scirefacias, to show cause why a writ iepartitions fatienda should not issue.</p>

David Bright against David Riddle, administrator of George M. Brobst, deceased, and Henry Brobst, Frederick Brobst and others, heirs of George M. Brobst, and terre-tenants of his lands. Case stated in the nature of a special verdict. On the 8th day of September 1815, George Michael Brobst gave a bond to David Bright for 1000 dollars, conditioned for the payment of 500 dollars, on the first day of April 1816, with interest from the first of April 1815.

<p>ERROR to the district court of Lancaster county.</p> <p>Mark Cooper and Benjamin Grove against the Township of_ Lampeter. This was an action on the case in assumpsit for work, labour and services, and materials found in the erection of the wing-walls of a bridge. The case was this; The county of Lancaster, in pursuance of the provisions of the act of assembly, had entered into a contract with the present plaintiffs for the erection of a bridge across a stream, which was too expensive for the adjoining townships to bear. After the bridge had been erected, Abraham Buck-waiter, one of the supervisors of Lampeter township, and the one who had the superintendance of the duties in that part of the township, entered into a written contract with the plaintiffs for the extension of the wing-walls of the bridge beyond what they were bound to do by their contract with the county. John Rohrer, the other supervisor, was not consulted on the subject; and, so far as he gave any opinion about the propriety of entering into the contract, he was opposed to it.</p> <p>The only question in the case was, whether one supervisor had power to enter into the contract so as to bind the township for the payment.</p> <p>The court below (Hays; president) was of opinion, and so instructed the jury, that the plaintiffs were not entitled to recover.</p>

<p>ERROR to the common pleas of Huntingdon county.</p> <p>Mallory & Stone against John Brotherline.., Scire facias against the defendant on bail of Hamilton Semple.</p> <p>Mallory & Stone brought a suit against Hamilton Semple, in which a statement with two counts was filed; one on a book account for 211 dollars 85 cents; the other on a special promise contained in a letter of defendant, admitting 170 dollars to be due. That suit was commenced by a capias ad respondendum, and John Brotherline and Francis Semple became special bail for the defendant in the sum of 300 dollars.</p> <p>At the April term, 1836, the cause was on the trial list, and being reached and a trial ordered on, the defendant’s counsel gave judgment as per statement filed.</p> <p>The plaintiff’s counsel gave a prsecipe for a fieri facias on’this judgment to August term 1836, and the writ issued for 462 dollars 55 cents, being the amount of both sums in the statement and interest thereon, and for the costs. This was returned “ nulla bona;” a capias ad satisfaciendum issued at the same term for the same sum of 462 dollars 55 cents and costs. This was returned “ non est inventus” The matter rested as to legal proceedings until a scire facias against the special bail issued to the January term 1S38. This recited a judgment of April term 1336, for 205 dollars 95 cents. The scire facias was served on Brotherline, and “nihil” as to Semple. Brotherline appeared and pleaded nul tiel record; and payment with leave, &c. On this latter plea, payments were shown which reduced the debt to 96 dollars. On the plea of nul tiel record, the court directed the jury that there was such a record, and verdict was rendered for the plaintiff for 96 dollars.</p> <p>On this plea and issue of nul tiel record, the following facts appeared by the record, and the testimony of the clerk in the prothonotary’s office: When the executions were ordered, the prsecipe did not state any sum, but simply called for the several executions on the judgment- The clerk added the two sums mentioned in the statement together, which, with interest, amounted to 462 dollars 55 cents, and issued the executions for that sum; when about to issue the scire facias on the recognisance of special bail, he found it was taken in 300 dollars—a sum less, as he supposed, than the amount of the judgment—and he applied to the plaintiff’s attorney, who, after examining the matter, directed the judgment to be corrected so as to be for 205 dollars 95 cents—being the amount of the sum admitted in the letter, viz: 170 dollars and interest from the date of the letter. The clerk said—“Mr. W. (the attorney) gave me a statement to alter and correct the docket entry of the amount of the judgment to 205 dollars 95 cents, and said that was the amount. I erased the sum of 462 dollars 55 cents, and inserted 205 dollars 95 cents. This on the judgment in the continuance docket—when Mr. W. (the plaintiff’s attorney) gave me the statement of the real debt being 205 dollars 95 cents, he told me the docket ought to be corrected; and I did so. I altered the amount on the continuance docket, and in the execution docket. I made no change in the executions returned. I issued the scire facias on the corrected judgment.”</p> <p>This evidence was offered and received without objection.</p> <p>The counsel for the defendant requested the court to instruct the jury—1. That if the testimony of the clerk is believed, there is, no judgment for 205 dollars 95 cents.</p> <p>2. That there having been in the plaintiff’s statement two distinct causes of action set out, which, together with their interest, amounted to 462 dollars 55 cents, and judgment having been rendered by the court as per statement, that the judgment was for that sum of 462 dollars 55 cents, and could not be altered or corrected in any other way but by an application to the court to correct it; and that any alteration otherwise than by the direction of the court, though by direction of plaintiff’s attorney rendered the judgment void.</p> <p>3. That when there is a recognizance of special bail in an action as in this case, if a judgment is rendered for 205 dollars 95 cents, that before the special bail can be held as fixed or liable, the plaintiff must show that a writ of capias ad satisfaciendum issued according to and in pursuance of such judgment, and have a return of non est inventus thereon; and that no writ of capias ad satisfaciendum having issued for a debt of 205 dollars 95 cents, the plaintiff cannot recover in this action, and that the capias ad satisfaciendum of August term of 1836, for 462 dollars 55 cents, is not sufficient to enable the plaintiff to recover.</p> <p>To the first point the court answered that it was of opinion that there is a judgment for 205 dollars 95 cents; that where a judgment is confessed as per statement filed, “ the prothonatory has a right to make up the amount, and if he makes a mistake to correct it; and it is at all times open to further correction by the court.”</p> <p>To the second point the court answered: “ The court agree that the most correct mode is to have all errors and mistakes corrected and amended by the court; but we cannot agree to the position that the correction in this case, as made by the prothonotary, renders the judgment void. We do not think it was very regularly .■done; it was like a release of half the judgment. It was the duty pf the attorney to have it corrected when he discovered the prothonotary had made up the judgment for too large a sum. It would have been better to have had it corrected on motion; yet being done by the prothonotary, by the direction of the plaintiff’s attorney, we do not think it rendered the judgment void.”</p> <p>To the third point the court say—“ This instruction we refuse to give; but instruct the jury that on the record and evidence in the suit, the capias ad satisfaciendum, No. 12S (for 462 dollars 55 cents) and the return of non est inventus, enable the plaintiff to recover on the recognizance of bail.”</p> <p>These answers of the court were assigned for error.</p>

<p>ERROR to the common pleas of Cumberland county.</p> <p>The Harrisburg Bank, for the use of James Bredin’s creditors, against John D. Mahon, with notice to John Moore and William Moore, terre tenants. Scire facias post annum et diem to revive a judgment, with notice to the terre tenants, who appeared and pleaded that they held no land hound by the lien of the original judgment; to which the plaintiffs replied, that they did hold lands bound. Issue.</p> <p>The plaintiffs gave in evidence a judgment of the Harrisburg Bank v. John D. Mahon, for 3000 dollars, entered ISth of April 1831. Scire facias upon it to August term 1839, and judgment upon .it 17th of January 1833. And to revive these judgments, the scire facias in this case issued, with notice to the terre tenants. On the trial of the cause, the plaintiffs specified the mill property, and house and lot in Carlisle, as that upon which they claimed to have the lien. And to show title in John D. Mahon on the 18th of April 1831, when their judgment was obtained, they gave in evidence the deed of John D. Mahon to John Moore, dated 27th of June 1831, and recorded the same day, for the property above mentioned.</p> <p>The defendants then gave in evidence as follows:</p> <p>Articles of agreement made and concluded, this eighteenth day of June A. D. one thousand eight hundred and thirty-one, between John D. Mahon, of the county of Cumberland and state of Pennsylvania, of the one part, and John Moore, of the same county and state aforesaid, of the other part, as follows, to wit: The said John D. Mahon, for the consideration hereinafter mentioned, agrees to convey by good and sufficient conveyances in law, unto the said John Moore and his heirs, free from all incumbrances whatever, (except what is hereinafter specified,) all those tracts or parcels of land as follows, to wit: The tract of land situate in South Middleton township, and county aforesaid, bounded by lands of Searight Ramsey, Henry Burkholder, Craighead and others, containing two hundred and twenty-eight acres, more or less; and having thereon erected one gristmill and one distillery, (now in possession of Dr Mahon,) together with the appurtenances—it being the same tract of land that formerly belonged to the heirs of Elizabeth Laird. It is understood, however, that the apparatus used in distilling, and belonging to the said Dr Mahon, consisting of copper stills, boilers, tubs, &c., are excepted. Also, the adjoining tract of wood-land, containing forty-eight acres, more or less; and the tract of fifteen acres, more or less, with a house thereon erected; said two last tracts being those that were purchased from Searight Ramsey, by the said John D. Mahon. Also, the land on which the hog-pens of the distillery are erected, containing one acre, more or less—it being part of the land conveyed to the said Mahon by John McClure. The said several tracts of land are to be conveyed by the said John D. Mahon to the said John Moore and his heirs, by deed, with general warranty, and free from all incumbrances, except the mortgage (on the mill or Laird tract,) which was given by the said John D. Mahon to Griffith Evans, of Philadelphia, to secure the payment of ten thousand dollars. This mortgage is to remain on said land, and be paid off as is hereinafter set forth.</p> <p>In consideration whereof, the said John Moore agrees to convey to the said John D. Mahon and his heirs, by deed with warranty, his undivided interest in Augusta and Mary Ann Furnace, and all the lands appertaining thereto. Also, his undivided interest in the Kring farm and the Clippinger farm—(the balance of purchase-money due, or to become due, on the Clippinger farm, and on the furnace lands, to be paid for by the said John D. Mahon, to whom the said Moore is afterwards to account for his proportion of said debts so paid.) The said Moore is also to convey to the said Ma-hon, all his interest in the stock of the said furnaces; said Moore reserving the right to take therefrom three horses, and the harness for them, such as said Moore shall select. It being understood that the amount of stock in which Moore has an interest, is to be equal to what was on the ninth day of March, A. D. one thousand eight hundred and thirty.</p> <p>The said Moore is also to assign to the said Mahon the lease made by the said Moore, to Cornelius Garretson, of the upper or Augusta Furnace, and the balance of Moore’s term, for the residue of the furnaces and the lands appertaining thereto—that is, the said Mahon is to be in the same situation that the said Moore now is, under the lease from said Mahon and Jacob M. Haldeman, to said Moore—Mahon receiving the rent from Garretson, and paying to the said Jacob M. Haldeman, the rent that will be coming to him— and discharging the said Moore from all liability therefor to himself, the said Mahon. The assignment of said lease to Garretson, and of Moore’s interest in the balance of his term, to take effect from, and be, as if riiade on the ninth day of March last. Possession of said furnaces, property, &c., to be given to said Mahon, when he shall have complied with the foregoing covenants on his ■part, in this indenture contained. It is also understood, that the mortgage of ten thousand dollars to Griffith Evans, aforesaid, is to .be paid by the said Moore, as follows, to wit: Five thousand dollars on or before the first day of September next, and the balance of five thousand dollars in three years from the date of this agreement; for which payment, so to be made by him, he is to be re-im•bursed by the said John D. Mahon, who is to pay to the said Moore, on said payments being made, equal amounts in money, or else in pig-iron, at the market price. That is, to pay John Moore, as :aforesaid, five thousand dollars, on his paying the first five thousand to Griffith Evans, and the remaining five thousand, also in money or pig-iron, immediately upon its being paid by Moore to Evans, 4o secure which, and to guard against the lien remaining on the said mill tract, the said Mahon is to give to the said Moore, a mortgage for ten thousand dollars, on the lands conveyed, or to be conveyed as by this agreement, by the said Moore to the said Mahon.</p> <p>It is further understood, that the said John D. Mahon, and his assigns, are to have the privilege of digging ore on the land conveyed, or to be conveyed in pursuance of this agreement, to the said Moore. This privilege, however, is to extend only to the digging and using of ore, in and for Chesnut Grove Furnace, Adams county, and is to be confined to five acres of the said land, within which a mine is now opened—that is, to five acres lying in one undivided parcel, and immediately adjoining the mine now open.</p> <p>It. is understood that the said Moore is not bound to make any-of the payments to the said Griffith Evans, until Mr Mahon shalL have complied with his covenants in this agreement set out. The said John Moore is also to convey to the said Mahon, and his heirs, his interest in the Conogocheague property, purchased from Thomas Chambers. Also in the property situated on Conodoguinet creek, and purchased from Oher and Lesher—and the interest he has in the Roxborough Forge, and lands thereunto appertaining; said Mahon stipulating to convey one-half of said interest in Roxborough, to C. Garretson—and the said Garretson and Mahon are to be accountable for the debts due on the said Roxborough property, excepting the claim of the said Moore for advances heretofore made on the same—the debt due to the said John Moore, of twenty-five hundred dollars or thereabouts, for pig-iron, is to be paid to the said Moore by the said Mahon and Garretson.</p> <p>It is further the understanding of the parties hereto, that the said Moore is not to have possession of the distillery,.cooper’s shop and distiller’s house, until the eighteenth day of June, A. D. one thousand eight hundred and thirty-three; nor of the merchant and grist mill, until the eighteenth day of December next—the same with the usual privileges, miller’s house, &c. being reserved for the use of the aforesaid David N. Mahon. It is further agreed between the parties, that the five thousand dollars to be paid by the said Moore, to the aforesaid Griffith Evans, on or before the first of September next, is to be paid by John D. Mahon to said Moore, as follows, to wit: One hundred ton of pig-iron, within one year after said first day of September, and the balance in pig-iron in the next year thereafter. The said Mahon also stipulates to repay the said Moore in like manner, the second five thousand to be paid by him to the said Evans, within the term of two years after said payment is made; the said Moore being eutitled to interest on said payments, from the time they were made by him to said Evans.</p> <p>It is also understood, that the unfinished contracts made by John Moore, aforesaid, to supply pig-iron to John M. Woodburn, A. Carden, Stevens and Arnold, and all others, shall be assigned to the said John D. Mahon, who is to complete the same, and to receive therefor payment for the proportions finished by said Mahon. The parts of the same, now completed, are to be settled for with the said John Moore, by the parties to said contract.—In testimony whereof, the parties hereto, have hereunto set their hands and seals the day and year first above written.</p> <p>John D. Mahon, [e. s.]</p> <p>John Moore, [l. s.]</p> <p>William Line, Esq., sworn.—I was not present when the article between Moore and Mahon was executed. Mr Moore and Mr Mahon called at my house, I think they furnished me with the articles of agreement; they requested me to draw deeds for the properties. They seemed to be very anxious to have them drawn immediately. I sent for Doctor Bowman to come and draw one— he did so—I drew the other: some other papers, I think, drawn at the same time, one of which was a mortgage. After the papers were drawn, they came and requested me to come in and take the acknowledgments. I did so. Came to Mr Mahon’s house. After the papers were acknowledged, Mr Moore objected to take the deed on account of liens against the property, to a large amount, which I think he said he was not aware of. There was some altercation. They ultimately agreed to go up to Mr Carothers’ office —they did so. A mortgage was spoken of, or more, to Griffith Evans of Philadelphia. Mr Carothers advised the mortgage to be paid off by Moore. The proposition, I think, first came from Mr Mahon, that the mortgage should be paid off by Mr Moore; and an assignment was to be had from him, to secure Mr Moore. They agreed, and made arrangements to go off to Philadelphia, for the purposes of the arrangements, the next morning. I understood they did go. They afterwards said they had accomplished their object.</p> <p>I am acquainted with the parts of the said tract—have surveyed them—it consists of three parts. Laird tract; eighteen acre tract got from Ramsey, embracing the water, principal part—another of Ramsey, about forty acres. There is a large mill on the Laird tract. It depends entirely for its usefulness, on the eighteen acre tract, as it contains the water right. The Laird tract, without the water works, would, perhaps, be worth thirty or forty dollars per acre, in 1831.</p> <p>Cross-examined.—Mahon gave, as I understood, 12,000 dollars. There was a mill then—knew that Mahon built a large new mill— two tenant houses built, distillery, &c.—improved very much. The old mill was supplied with water chiefly by Bonnybrook. It is not used for this mill, it is not on this property. Both mills could not have been in operation.</p> <p>I think it was in 1831, when Mahon and Moore were at my house. It is likely it was shortly after the date of the agreement, probably in the month of June. They went to Philadelphia the following day, as I understood. The arrangements at Mr. Carothers’ office, were not put in writing. It was after the execution of the papers. Two deeds, I am certain, perhaps a mortgage—I am certain there was. I can not state the purport of the mortgage. I think it was a security to Mr Moore—can not remember. I drew the mortgages. They told me, on their return, they had got the arrangements made. I can not remember if they told me the particulars. They did not tell me how the mortgages were to be paid, as I remember. The deeds were out of my possession after the meeting at Mr Carothers’ office. I do not remember them after they were acknowledged, at Mr Mahon’s house. There was an interlineation in the mortgage from Mahon to Moore. The estimated value of Moore’s right in the furnaces, transferred to Mahon, was 30,000 dollars.</p> <p>Mortgage, John D. Mahon to Griffith Evans, dated 27th of April 1824, recorded 1st of May 1824, on the Laird property, 228 acres and 31 perches, more or less, conditioned for the payment of 5000 dollars four years after date, with interest to be paid half yearly from date.</p> <p>Mortgage, John D. Mahon to Griffith Evans, dated 17th of January 1828, on the same property, conditioned for the payment of 5000 dollars five years after date, interest from date payable half yearly, recorded 22d of January 1828. This mortgage has this assignment on the margin, to wit: “Thomas Elder, Esq., attorney in fact for Griffith Evans, on the 8th of August 1831, in consideration of 5075 dollars 83 cents, paid by John Moore, and being the full amount then due, assigns the mortgage and bond to said John Moore.”</p> <p>Power of attorney from Griffith Evans to Thomas Elder, Esq., as follows:</p> <p>Philadelphia, July 2, 1831.</p> <p>Thomas Elder, Esq., Harrisburg:—Sir: Mr Mahon having made arrangements for discharging my second mortgage, dated 17th of January 1S28, for 5000 dollars, and it is desired by Mr John Moore, who, I understand, is to pay the money, that the mortgage should be assigned to him.</p> <p>Therefore I, by these presents, constitute you my true and lawful attorney for me, and in my name to assign, transfer and make over to the said John Moore, his heirs and assigns, all my right, title and claim to the debt and interest secured, or intended so to be, by the said mortgage, together with bond and warrant accompanying the same, and all other advantages and facilities appertaining thereunto; hereby ratifying and confirming all my said attorney may lawfully do in the premises. He, the said John Moore, first paying into your hands, for my use, the said principal of 5000 dollars, and interest thereon, from 27th of April last.</p> <p>Given under my hand and seal, this 2d of July 1831.</p> <p>Signed, Griffith Evans, [l. s.]</p> <p>Acknowledged same day, before a magistrate.</p> <p>Recorded in Cumberland county, 8th of August 1831, in Record book N. N., vol. 1, page 3S9.</p> <p>Mortgage, John D. Mahon to John Agnew, dated 5th of April 1828, conditioned for payment of 3192 dollars on 1st of April 1831, with interest payable annually, secured on the Laird tract, recorded 7th of April 1828.</p> <p>Satisfied by John Agnew, 26th of July 1831.</p> <p>Judgments against John D. Mahon.</p> <p>' 1. The Carlisle Bank, v. John JD. Mahon, co-promisor with R. Henry Lee. No. 63, November term, 1830. November 1830, judgment. Real debt 214 dollars, interest from 6th of October •1830.</p> <p>2. Same Plaintiff v. Stephen Duncan and John D. Mahon. No. 83, November term, 1830. 8th of November 1830, judgment for '6000 dollars, interest from 26th of October 1830.</p> <p>3. Same Plaintiff v. John D. Mahon, Esq. No. 104, January term, 18.31. 1st of February 1831, judgment confessed for real debt, 2500 dollars.</p> <p>4. Same Plaintiff v. John D. Mahon, Esq. No. 105, January term, 1S31. 1st of February 1831, judgment, real debt 460 dollars 12 cents, interest from 1st of April 1831.</p> <p>The following agreement, dated the 27th of June 1831, forms part of the record of the above four judgments, viz:</p> <p>The liens of these judgments on the mill, distillery and four tracts of land, conveyed by John D. Mahon and wife, to John Moore, by deed dated the 27th June, 1S31, are released by the Carlisle bank; in consideration whereof the said Mahon agrees that the Mary Ann and Augusta Furnaces, and the lands thereto appertaining, the Kring farm and the Clippinger farm, and all the lands, rights and privileges conveyed by John Moore and wife, to the said Mahon, by deed dated the 27th June 1S31, are bound by the lien of these judgments, as fully as if writs of scire facias had issued against the said Mahon, and judgments thereon been regularly confessed, immediately after the date and delivery of said deed—subject only to the lien of a mortgage from the said John D. Mahon to the said John Moore, for securing the payment of 10,000 dollars, dated 27th June 1831, which deeds and mortgages are on record.</p> <p>George McFeely v. John D. Mahon. No. 39, April term, 1831. Judgment by nihil dicit, April 12, 1S31. Real debt, 954 dollars. Interest from 12th April 1831.</p> <p>Harrisburg Bank endorsee of George Croft, John Moore and Samuel Galbraith v. John D. Mahon. No. 26, April term, 1831. 18th April 1831, judgment for 900 dollars. Interest from 14th May 1830.</p> <p>Harrisburg Bank endorsee of John D. Mahon v. John D. Mahon. No. 28, April term, 1831. ISth April 1831, judgment for 1000 dollars. Interest from 14th May, 1S30.</p> <p>The Harrisburg Bank endorsee of James Bredin v. John D. Mahon. No. 60, April term, 1831. 18th April 1831, judgment. Real debt, 3000 dollars. Interest from 9th June 1830.</p> <p>This is the judgment in controversy.</p> <p>Mortgage, Mahon to John McClure, 23d February, 1827, for payment of 3625 dollars, due the 21st of April, 1828, embraces the Hog-pen tract.</p> <p>The following proceedings on the mortgage assigned by Evans to Moore, were given in evidence.</p> <p>Griffith Evans v. John D. Mahon, with notice to John Moore, terre tenant. No. 21, August term 1834, scire facias sur mortgage. 28th June 1834, judgment confessed by Mahon. 7th July 1834, judgment confessed by Moore.</p> <p>No. 16, November term 1S34; levari facias; debt 5000 dollars; interest from the 17th of June 1834. 26th September 1834, mortgaged property sold to William Moore for 1650 dollars.</p> <p>13th November, 1834, on motion of Mr Alexander and affidavit of Mr. Shoch, filed rule to show cause on Saturday the 6th of December next, why the sale made by the sheriff, of the real estate of the defendant on this writ to William Moore, shall not be set aside. 9th December 1834, on argument it is claimed on part of the Harrisburg Bank, the creditors of Bredin, &c. that the sale be set aside, and also the judgment be opened. It is by consent, considered as if the rule was enlarged so as to show cause why the sale should not be set aside, and also why the judgment should not be opened—both now to be considered. After full argument, the court ordered the deed to be acknowledged, and refused to open the judgment on which the levarifacias issued.</p> <p>By the Court.— Venditioni Exponas, No. 91, April term 1834, proceeds of Bredin’s property brought into court for appropriation. The Harrisburg Bank satisfied out of these moneys, and the judgment in controversy marked for the use of Bredin; for the use of his creditors 22d September 1834.</p> <p>The counsel for the terre tenant, John Moore, requested the court to charge the jury, that under the facts given in evidence, he had a right to take an assignment of the mortgage of Griffith Evans for his own protection, against the subsequent lien creditors of John D. Mahon, and that his proceeding upon it to a sale of the mortgaged premises, divested the lien of the judgment of the Harrisburg Bank, and the plaintiffs could not recover.</p> <p>In answer to which the court instructed the jury that John Moore, being the owner of the fee by purchase from John D. Mahon, the moment he became the owner of the mortgage also it merged in the fee and became extinct; and that the scire facias, subsequently issued upon it against the mortgager with notice to himself, was a mere nullity, and did not divest the lien of the judgment of the bank, and that the plaintiffs were entitled to recover.</p> <p>To this opinion exception was taken by the defendant, and the court sealed a bill of exception.</p>

<p>ERROR to the common pleas of Mifflin county.</p> <p>The Commonwealth, for the use of John Hahn, against' Francis McCoy. This was an action of debt upon the official recognizance of sheriff’ Stuart, against the defendant, who was one of his sureties.</p> <p>The plaintiff gave in evidence the record of a suit of Samuel Eisenbise’s administrator against John Hahn, in which a judgment was rendered for the defendant, and a fieri facias against the plaintiff for costs, which went into the hands of sheriff Smart, and was never returned. The costs on the writ were all due to officers of the court: attorney, sheriff and prothonotary.</p> <p>Also another fieri facias on a judgment in favour of the said John Hahn, for costs. Endorsed on this writ, besides the officers’ costs, there was, “Defendant’s bill of costs at May term 1S30, 7 dollars 30 cents.” This amount was not included in the body of the writ.</p> <p>The court below instructed the jury that the plaintiff was not entitled to recover any part of the officers’ fees included in the executions: that the sheriff was bound, in executing the fieri facias,by •what was contained in the body of the writ, and not by the endorsement; and that the plaintiff was not entitled to recover nominal damages for the mere reason that the sheriff did not return his writs ■according to law'; nor unless he had sustained actual damage by the misconduct of the officer.</p>

<p>A promise of general indemnity is broken by the recovery of a judgment against the person to whom the promise was made; and he may maintain an action upon it, without proof of the payment of the judgment.</p>

The Commonwealth, for the use of William Rutherford and Wife, against Peter Wenrick’s Administrators. John Hill, being the executor of John Wilson, deceased, an application was made to the orphans’ court in pursuance of the act of the 4th of April 1797, to compel him to give security; and he thereupon entered into a bond, in the penalty of 5000 dollars, with Peter Wenrick, the defendant’s intestate, as his security, for the faithful administration of the assets.

<p>ERROR to the common pleas of Clearfield county.</p> <p>Ralph V. M. Cooper and others against John S. Brockway.</p>

Walter Franklin, Esq. president of the orphans’ court, &c., for the use of Samuel Morris and Sarah, his wife, against James Galbraith, recognisor, with notice to Andrew Hershey, John Christ and others, terre-tenants. l)ebt on recognizance in the orphans’ court.

<p>CERTIORARI to the quarter sessions of Cumberland county.</p> <p>Case of the road from the brick school house on Corporation street, in the borough of Newville, to the Cumberland’Valley rail road, near where the said road crosses the Big Spring, in Newton ■township, Cumberland county.</p> <p>• On the 9th of August 1S36, the petition of the inhabitants of the borough of Newville, was presented to the court of quarter sessions of Cumberland county, praying the court to appoint six reputable freeholders to lay out a public road, commencing as near as may be to the brick school house on Corporation street, in said borough, and thence to a point at or near where the rail road shall cross the Big Spring, on the west side of said spring. The petition was signed .by twenty-six petitioners, of whom John Johnston was one.</p> <p>On the same day the court appointed six viewers, four of whom, rnn the 19th of November 1S36, reported that they had viewed the ground proposed and laid out a road for public use, which was • particularly described in their report by courses and distances, and also by a plot or draft annexed. It also appeared by their report, that five of the viewers had viewed the ground. This report, on the same day, was approved nisi, and on the 12th of January ■1837, the following order was made: “The within report being read in the manner and at the times prescribed by law, the court ; approve of and confirm the same road for public use; and order that it be entered of record, and be taken, deemed and allowed to be a public roa'd or highway; and the court further direct, that, the said road shall be opened of the breadth of fifty feet, agreeably to the courses and distances aforesaid, of which the supervisors .of the highways of the townships through which 'the said road passes, are to take notice and govern themselves accordingly.— By the court.”</p> <p>And an order issued to open said road.</p> <p>On the 13th of April 1837, the petition of Paxton & Galbraith • was presented representing that the aforesaid road (particularly designating the same) “is laid out and opened through the lands .of your vpetitioners and occupies between two and three acres thereof, and has destroyed valuable timber growing thereon,” and praying “ the court to appoint proper persons to view the premises and assess the damages, if any, which petitioners may have sustained.”</p> <p>On the same day the petition of John Johnston, who was one of the petitioners was presented to said court, representing that the aforesaid road (particularly designating the same) “ passes through the land of petitioner in such away as to do him gréat injury, by the appropriation of his land a width of fifty feet, and making the remainder of his ground into such a shape as to make it of much less value,” and praying “the court to appoint six disinterested persons to view the premises, and ascertain and report the damages which he has sustained by reason of the location and opening of the said road.”</p> <p>On the same day the court appointed Josiah Hood, Peter Wilt, David Palm, John Dunlap, James Montgomery and Samuel Irvine, viewers in the'above eases. -</p> <p>In the case of Paxton & Galbraith the viewers reported as fol•lovrs: “We, the within named viewers, met agreeably to order, and all being duly sworn by James Kennedy, Esq.; and having ¡viewed the ground and duly considered the advantages that might arise to the owner of the land through which said'road is laid out, do report, that we find for your petitioners the sum of 150 dollars ¡damages, and all legal costs.”</p> <p>In the case of John Johnston they reported as follows; “ We, the •within named viewers, met agreeably to order,- and all being duly sworn by James Kennedy, Esq.; and having viewed the ground •and- having duly considered the advantages that might arise to the owner of the land through which said road is laid out, do report, that the actual damages to the petitioner, we find to be. 110 dollars and all legal costs.</p> <p>On the 17th of August 1S37, the reports came before the court. 'At the same time a petition of the inhabitants of the borough of Newville and townships adjacent was presented, setting forth that the aforesaid road (particularly designating the same) “ as laid out and opened, is entirely useless and inconvenient and burdensome,” and praying the court to appoint suitable persons to view said road, and vacate the same should they deem it expedient and proper so to do. The petition was signed by forty-eight petitioners, of whom were Peter Wilt, John Dunlap, James Montgomery and Samuel Irvine, four of the viewers in the case of the damages.</p> <p>At the same time, to wit, 17th of August 1837, petitions were presented by the commissioners of Cumberland county, for reviews in the aforesaid cases of damages. The petitions set forth that “ the damages were excessive, and more than the county of Cumberland should reasonably pay,” and praying the court to appoint suitable persons to view the land, &c., and report what damages, if any, were sustained, &c.</p> <p>Upon these reports, petitions and proceedings, the court made the following decree in writing:</p> <p>Reed, president.—“Application to confirm the report of viewers to assess damages, objected to, and a view applied for by the commissioners of the county; the review objected to, not being allowed by the act. Petition also for a view to vacate the road; objected to the appointment of reviewers; it was only recently confirmed and opened; it is in the discretion of the court to grant or not, &c.</p> <p>“ A view for a road or a view to vacate a road, is not imperative; it is only to be done as often as it seems needful. Here this road was confirmed in January and opened since; no review was applied for; this is full evidence that it is not needful to vacate it. If the objectors refused or neglected to proceed by review at their own expense, which they had a right to demand, we will not suffer them to lie by till confirmed and opened, and then immediately to apply for a new view. The petition is rejected. The words of the act are, if the road shall become useless, &c. It cannot have become so since it was opened. The objection is to the original laying out of the road, not to any thing since it was laid out.</p> <p>“ We confirm the report for damages and refuse a review; there is no evidence on the subject,” &c.</p> <p>Exceptions:</p> <p>1. The court of quarter sessions have no authority to lay out a public road in the borough of Newville.</p> <p>2. They erred in refusing to appoint viewers to view and vacate said road.</p> <p>3. They erred in appointing viewers to assess damages on the .petitions of Johnston and Paxton & Galbraith, because no injury is set forth in the petitions which is the subject of compensation out of the county funds.</p> <p>4. The report of viewers is radically defective.</p> <p>5. John Johnston, who was a petitioner for the road, can not recover damages for laying out and opening the same road.</p> <p>6. The court erred in refusing reviews upon the petitions of the commissioners of Cumberland county, and confirming the report of ■viewers.</p>

<p>An action of debt upon a judgment is not supported by a decree of the Supreme Court, upon an appeal from the orphans’ court, settling a guardianship account. It is not such a judgment as will support an action of debt.</p> <p>On the plea of nul tiel record, in an action on a judgment, a variance as to amount, betwixt the judgment produced, and the judgment laid, is fatal.</p>

<p>• ERROR to the common pleas of Centre county.</p> <p>David Lamb, James Brown and wife, and others, children of Samuel Lamb, deceased, againsl John Beck, executor of Samuel Lamb, deceased.</p> <p>This was an amicable action, to determine the legal construction of the will of Samuel Lamb, in which the following case was stated.</p> <p>On the 5th day of June 1819, Samuel Lamb, of Walker township, Centre county, Pennsylvania, made his last will and testament, and died on or about the 7th day of September 1819. He provided as follows, viz: “ I give and bequeath to my daughter Mary, a feather bed and bedstead, and bedding, that which is commonly called her own bed, together with her choice of the cows now belonging to me, and her own spinning wheel, and a large pine chest; and at the end of two years after the administration of this will, to receive the sum of twenty dollars, and the sum of twelve dollars, yearly, and every year, until my youngest surviving child comes of lawful age. To my daughter Margaret, or Peggy, I will and bequeath a feather bed and bedstead, and the bedding that belongs, commonly called her own bed, together with a cow, her choice after Mary has chosen, and her spinning wheel, together with twenty dollars, at the end of three years after the execution of this will. To my daughter Kitty King, I will and bequeath a bed and bedding, known by the name of my own bed, together with forty dollars in cash, at the end of six years as above. My daughter Nancy, married to William Moore, blacksmith, has received, what makes her equal to my daughters above mentioned. If it is the will of God to remove me from this his footstool by this visitation, it is my will that my estate, real, personal and mixed, be put to sale as soon as it shall be thought best, and the proceeds thereof to be put to the best use, for the benefit of the children, when my lawful debts are all paid. My sons Manners, David, William, Samuel and John James, the two first mentioned is at the age to choose their own guardians and the trades they would like best. My three youngest sons, together with my daughter Hetty, to have guardians chosen for them, and to be taken care of in the best manner the executors can devise. I also will and devise that my eldest son Manners, when he arrives at the lawful age of twenty-one years, to receive the sum of one hundred and twenty dollars, if on hand, if not, as much, as the executors thinks they can spare from the younger children. My other sons, as they come of age, to receive the same amount as Manners receives. My daughter Hetty, being of tender age, is to receive an equal share with my sons, when she comes of the age of eighteen. If any of the children should be removed by death, before they receive their shares of the above division, then, and in that case, an equal divide is to be made of their part amongst the surviving heirs, unless any of them have married and has children; in that case, their share to go to their own children. When my youngest child is come to full age, and each has received their share as above stated, and there is any yet remaining, it is my request that what remains shall be equally divided betwixt the surviving heirs.” And appointed John Beck and William McKillen executors of his last will and testament, who, on the 7th of September 1819, took upon themselves the administration thereof. Mary Lamb, the eldest daughter, died on the 5th day of September 1820, under age, unmarried, and without issue. Peggy Lamb, the second daughter, died on the 17th day of June 1820, unmarried, and without issue. Nancy, the wife of William Moon, died on the 8th day of October 1820, leaving her husband, William Moore, who is yet in full life, and a daughter, surviving her. The daughter of ■Nancy died in 1823, a minor, unmarried, and without issue. The youngest child of Samuel Lamb, the testator, John James, arrived at full age on the 14th day of February A. D. 1838. The executors of the last will and testament of the said Samuel Lamb, in the month of October 1830, sold the real estate of the said Samuel Lamb, in pursuance of the authority vested in them by the will; and the defendant, the surviving executor, has in his hands four hundred and eleven dollars and thirty-eight cents, being the one-seventh of the net proceeds of the purchase-money of the real estate.</p> <p>The question for the opinion of the court is, whether the plaintiffs, are entitled to recover from the defendant, the surviving executor, the said sum of four hundred and eleven dollars and thirty-eight cents; if the court should be of opinion that he is, then judgment to be entered for the plaintiffs for the said sum of four hundred and eleven dollars and thirty-eight cents, from which the costs of this action are to be taken. If the court should be of opinion that he is not, then judgment to be entered generally for the defendant.</p> <p>The court below gave judgment for the defendant, which was in favour of the husband of Nancy Moore, deceased.</p>

This was an issue under the act of the 16th of April 1827, to try the right of the Farmers’ Bank of Reading to money in court which arose out of the sale of the real estate of John Garber; in which the Bank was plaintiff and Leah Strohecker was defendant.

<p>If a claim be transferred to a creditor as a collateral security for the payment of a debt, it is incumbent on such creditor to use ordinary diligence to realize the claim; and he would be responsible for loss occasioned by an omission to do so. But if the transfer be of a special character, authorizing the creditor to receive the claim when collected, then it imposes no responsibility on the creditor as to the diligent prosecution of it.</p>

<p>CERTIORARI to the common pleas of Dauphin county.</p> <p>The real estate of George Sloan was sold by the sheriff to Perry Martin. A motion was made to set the sale aside for reasons filed, which the court overruled, and directed the deed to be acknowledged. Sloan sued out a writ of certiorari to remove the proceedings to this court for review.</p>

Peter Phillips, John Phillips and others against Henry Phillips. This was an issue directed by the orphans’ court of Berks county, to determine whether the title to a certain tract of land containing two hundred acres, was in the plaintiffs or in the defendant.

This cause having been decided upon a single point, which was decisive of the rights of the parties, no other statement of facts is necessary than that contained in the opinion of the court.

Andrew S, Morrison, administrator de bonis non cum testamento annexo of Hugh Hay, deceased, against George Mayer and others, tenants in possession.

' Commonwealth against Daniel Sherban. Indictment for. betting on an election; in which the offence was thus laid: “ The grand inquest of the commonwealth' of Pennsylvania, inquiring in and for the county of Cumberland, on their oaths and affirmations respectively, do present: That Daniel Sherban, late, &c., on the ,28th of September 1838, in the county aforesaid, and within, the-jurisdiction, of this court, did lay a wager and bet with a certain Jacob Clark, and that the…

The Commonwealth, for the use of Thomas Todd, administrator of Thomas Beale, deceased, against the administrators of David Gilson, deceased, and others. This was a scire facias upon a judgment on an administration bond.

Michael Weise, for the use of J. B. M’Lanahan, against Abra ham Cronister, administrator of Jacob Cronister, with notice to James Clark, the tenant in possession. Scire facias sur mortgage. The plaintiff gave in evidence a mortgage of Jacob Cronister to Michael Weise, of sixty-nine acres of land, to secure the payment of eight bonds of 422 dollars 81 cents each, payable in eight successive years after the 1st of April 1817.

Bartram Galbraith against Benjamin Ü. Hall, constable. The plaintiff, B. Galbraith, obtained a judgment against John Armer, before a justice, upon which he issued an execution, and placed it in the hands of the defendant, B. D. Hall, constable, who made return, “ levied on a lot of boards, a lot of stuff framed for the Episcopal church, shingles and other lumber thereto pertaining, now on the ground as the property of defendant.

<p>A bond given by an assignee, under a voluntary deed for the benefit of creditors, with but one surety, is not void, although it do not appear to have been approved by a judge; and it may be enforced against the assignee and surety.'</p>

<p>In an action on the case, quod servitium amisit, by a father against one who, having his son at hire, put him upon a vicious horse, by which he was thrown and his leg broken, it is not competent for the defendant to show how he had treated him before the accident.</p> <p>The opinion of the surgeon whether the boy would recover the use of his limb, is competent evidence in such action.</p> <p>The declarations of the mother who nursed him, even if made in his presence, are not competent evidence for the defendant; nor is the intemperance of 'her habits.</p> <p>The expectation of a witness that he will receive a part of the money recovered, if he be not legally entitled to it, is an objection to his credibility, but not to his competency.</p> <p>If an injury be inflicted upon a child while living with and in the service of his father, he may maintain trespass; but if at the time he be hired to, and in the service of another, trespass on the case is the proper remedy.</p> <p>The expense of prosecuting an action by a father for an injury to his son, is a proper subject of consideration by the jury in assessing the damages.</p>

George L. Shearer, administrator of William M’Mullin, deceased, against James 0. Hail, guardian of John S. M’Mullin. William M’Mullin made his last will on the 13th of November 1826; which was duly proved in the register’s office of York county, on the 2Sth of May 1S27, and letters testamentary issued to the executors therein named.

Jacob Hoover against William J. B. Andrews. This was an action of covenant upon an agreement, by which the plaintiff was to deliver a certain quantity of timber at Middletown for a certain stipulated price, to be paid at the time of delivery. ■ The timber was delivered at the time and place, but the defendant refused to accept or pay for it, alleging that it was not in quality what he had contracted to pay for.

Isaac Herman against Henry Brookerhoff. This was an action on the case, for maliciously suing out a capias ad respondendum by the defendant against the plaintiff. ■ The facts were, that Brookerhoff procured a capias to be issued against Herman by a justice of the peace, for selling merchandize as a pedlar without a license. Upon the trial before the justice, the defendant produced a license which had been granted to him by a mayor’s court.

Riah Gilson against The Philadelphia and Reading Rail Road Company. This was an application for damages done to the plaintiff’s property by reason of the construction of the rail road, and taking materials from him for that purpose. The opinion of the court sufficiently states the questions which arose on the trial.

Eliza Simpson and others against the administrators of John Joseph Kelso, deceased. This was an amicable action, and case stated in the nature of a special verdict, as follows: William Kelso, the elder, whom we shall call William the first, had an equitable estate in the lands and premises hereinafter described, subject to-the purchase-money due the proprietaries, having purchased the same at sheriff’s sale as the property of William Harris. William the first died intestate.

<p>APPEAL from the decree-of the orphans’ court of Mifflin county, granting an order to sell the real estate of Patrick Pry, deceased, to his administrator, Patrick M’Kennan.</p>

■ Thomas M’Kinstry, surviving William Sterrett, against John Lackens and Daniel Shaeffer. November 15, 1833.—Case stated for the opinion of the court, with liberty, to either party, to take out a writ of error.

Charlotte Johnston, executrix of John Johnston, deceased, for the use of H. W. Hinkley, against Henry Walters. Held: and gave notice to Mr Walters that he would not allow him to set off the note of Johnson & Lanning to Hollenbach: and in which he says that Johnson had transferred his (Walters) note to him before he (Walters) had received the note of Johnson & Lanning from Hollenbach.

A. J. Jones and John Cameron against Peter A. Small and Samuel Small, surviving partners of Smalls & Co. This suit was brought to recover 165 dollars, the balance of a sum of 200 dollars, alleged to have been lent by plaintiffs to the. firm of Smalls & Co., composed of defendants and John Small, deceased.

<p>ERROR to the district court of Lancaster county.</p> <p>James Mehaffy and James Duffy against Joseph Lytle, who survived John Pedan.</p> <p>The parties agreed to consider the facts of this case in the nature of a special verdict; and they are thus stated and decided upon by the court below, (Hays, president.)</p> <p>In the year 1813, John Pedan (now deceased) entered with Joseph Lytle, as his surety, in a bond to Mrs Frances Evans, conditioned to pay her the sum of 24,290 dollars 62j cents. James Mehaffy, James Duffy and Henry Share were co-obligors in the same bond. A considerable portion of this debt having been discharged, John Pedan’s share, the one-fourth part of the balance remaining unpaid, was ascertained to be 3616 dollars 71i cents; and he and Joseph Lytle, on the 19th day of July 1815, executed a bond of indemnity to James Mehaffy and James Duffy, to keep them harmless, and indemnify them, their heirs, executors, &c. and his and their goods and chattels, lands and tenements, of and from all actions, suits, payments, costs, charges and damages, for or by reason of three thousand six hundred and sixteen dollars and seventy-one and a half cents, being the one-fourth of a bond, &c.</p> <p>The estate of Henry Share, one of the co-obligors, was, in 1820, seized and sold by executions under the judgment obtained by Mrs Evans on her b.ond—who, in this way, recovered the amount which John Pedan was bound to pay, and ought to have paid her.</p> <p>Henry Share having, on the 12th of May 1821, assigned his right and interest in this matter to Henry Haines, Jun., a suit was brought on the 1st of June 1827, in his name, to the use of Henry Haines, Jun., against James Mehaffy, to recover contribution from him as a co-obligor for his one-third part of the sum, which had been levied from the estate of Share, in discharge of Pedan’s one-fourth of the balance of Mrs Evans’s bond. In this suit, the plaintiff recovered of James Mehaffy 2546 dollars damages, with costs.</p> <p>A similar suit was brought on the same day, against James Duffy, for his contributary share as a co-obligor of the same sum; and on the 25th of September 1828, a judgment was rendered by agree-merit and consent, for the sum of 2820 dollars 21 cents, and James Duffy then assigned to Henry Haines, Jun., in satisfaction of this judgment, his claim to indemnity upon the bond of indemnity of the 19th of July 1815.</p> <p>On this bond of indemnity, an action was commenced in the name of the obligees, James Mehaffy and James Duffy, for’the use of James Mehaffy, to September term 1831, No. 28, and judgment therein, was recovered by the plaintiffs, for the penalty, and for the special damages of James Mehaffy.</p> <p>The present suit is a scire facias on that judgment, issued against Joseph Lytle, who survived John Pedan, under the statute of S and 9 William 3,—suggesting breaches of the condition of the bond, in regard to the indemnity of James Duffy, for the purpose of recovering his, the said James Duffy’s damages, by reason of such breaches. The defendant pleaded non damnificatus—conditions performed —and payment with leave, &c., and the replications of conditions not performed and non solvit, placed the case at issue.</p> <p>It came on for trial, and after the testimony was closed, the jury were dismissed. Counsel agreeing to argue the case on the testimony before the court, as upon a special verdict, finding the facts; each party reserving exceptions to the opinion of the court, and bills of exception to the testimony: the court to give their opinion on the argument, in charge to a jury hereafter, with directions to find a verdict accordingly. This course was adopted by consent.</p> <p>The argument took place; and as Joseph Lytle was not notified to appear and defend in the suit against James Duffy, for his con-tributary share, it was conceded that he might avail himself of the statute of limitations, if a plea of the statute would have been a bar in that suit. It was strenuously contended by his counsel, that it would; and this was treated as the great point in the cause—it being urged that, on this account, the plaintiff was not entitled to recover.</p> <p>2. It was also contended, that he ought to recover nothing here, because he had no notice of that suit.</p> <p>3. That he ought not to recover, because the judgment in that suit, and the assignment, were a fraud upon Joseph Lytle.</p> <p>4. That the plaintiff ought not to recover, because Duffy paid nothing, was insolvent, and therefore was not and could not be damnified: or if the plaintiff be entitled to recover at all, the damages should be nominal.</p> <p>On the other side, it was contended that the statute would not, if pleaded, have been a bar to the action of Share et al. v. Duffy—that the plaintiff was entitled to sue and recover, and that there was neither irregularity nor malafides in the judgment or in the assignment—that as Duffy was entitled to full indemnity, and as the conditions of the bond of indemnity had been broken, and all indemnity withheld, the measure of damages in this case should be ■the full amount of his one-third part of the sum paid by Share for Pedan, with interest from the 26th of June 1821, when the money was paid to Mrs Evans, until this time—with one-third of the costs on the venditioni, against Share, and interest thereon: and the costs in the suit to June term 1820, No. 90.</p> <p>The first question is, would the statute of limitations have barred the action against Duffy for his contributary share of Pedan’s part of the obligation to Mrs Evans?</p> <p>The material consideration with reference to this question, is the time when the cause of action accrued to Henry Share. On the part of the defendant it was argued, that the acknowledgment of the sheriff’s deed, was the point of time—then it was that he must be considered as having paid Mrs Evans, for then his title to his land was completely divested. For the plaintiff, it was insisted, that Share’s action did not accrue, until the court finally decreed what part of the money arising from that sale which had been paid in, Mrs Evans was to receive, and that as this was not decreed until the 26th of June 1821, he could not have sued his co-obligors before that date.</p> <p>The case of the Bank of Pennsylvania v. Winger, 1 JRatole 302, decides that a sale of land on execution does not discharge the debt. It is not payment, either in fact or by presumption of law.</p> <p>The payment of a debt, considered as a matter of fact, implies the receipt of the money by the creditor, as well as the parting with it, by the debtor. The money raised by the sale of Share’s estate, was in pursuance of a rule brought into court by the sheriff, on the 16th of January 1821. The debt of Mrs Evans was not paid by the sale of the land or the receipt of the purchase-money by the sheriff, which the sale implies.</p> <p>The sheriff was the agent of the law and the court, to carry into effect their judgments. He was no more the plaintiff’s agent than he was the agent of any other of the defendant’s lien creditors, or of the defendant himself. His liability to be called upon, as he was, to pay the money into court, proves that in legal contemplation, as well as in point of fact, his receipt of it was no payment to the plaintiff, Mrs Evans. And he was thus liable, at the instance of the defendant, as well as that of any of his creditors, claiming a lien, or who chose to contest Mrs Evans’ right to the proceeds of the sale; all which confirms the position, that the receipt of those proceeds by him was no payment to the plaintiff, in the execution.</p> <p>Nor did the bringing of the money into court, on the 16th of January 1821, in obedience to the rule, constitute a payment to Mrs Evans.</p> <p>There can be no presumption of law to that effect,, for it would involve the absurdity that she was paid nearly twice as much as she demanded—the sum paid in being 16,000 dollars, and her claim being something more than 9000 dollars:—again, it would be a presumption against the record which shows that a part of her claim was not paid until the 27th of January, and the residue not until the 26th of the ensuing June. But further, the fact of ordering the money into court, and that too upon the motion of Mr Rogers, who was concerned for other creditors of Share, shows that Mrs Evans’s right to it was contested. Though the estate was sold upon her execution, she was not entitled to the proceeds, as a matter of course. They might all have been appropriated to prior liens, had there been such, and she might have waived her lien without relinquishing her debt. Hence, the sale was no payment to her, and much less the bringing of money into court.</p> <p>And whilst the contest was pending before the court and the money detained from her, and placed in gremio legis to abide the event, any supposed presumption of payment to Mrs Evans is manifestly negatived.</p> <p>On the 27th of January the court decided in her favour to the amount of 6000 dollars of her claim, which sum was then ordered to be paid to her. But it was not until the 26th of June 1821, that they directed the balance, being 3322 dollars 43j cents, to be paid. It was not until this last-mentioned day that Mrs Evans did in fact or by any legal intendment receive the whole of her debt—not until then was she paid—not until then was it decided that she was entitled to be paid her whole demand.</p> <p>Could Henry Share have brought his suit for contribution against his co-obligors, Mehaffy and Duffy, before that day? The amount of Mrs Evans’s debt was more than 9000 dollars. Had Share sued for contribution after the 6000 dollars were ordered to be paid to Mrs Evans, but before the remaining 3322 dollars 43| cents were ordered to be paid to her,could he have sustained his action? How could he have shown (what would have been incumbent upon him) that he had paid Pedan’s part of the bond? Would the receipt of Mrs Evans of the sum of 6000 dollars have sufficed, when more than 3000 dollars of her bond were still unpaid? Would the payment to her of the 6000 dollars have established his claim to contribution?</p> <p>It must be recollected that the arrangement with respect to Pedan’s part of the obligation, was a transaction in which the obligee had no concern. Her claim was upon each and all the obligors, none of whom had any right to say to her, on payment of a part of the debt, that such payment was to be considered as the share of this or that obligor. Her demand was a solid debt, not to be parcelled out, or in any way divided. Whatever was paid, in part, was so much taken from the entire debt, and so much the less remained to be recovered by the obligee from the obligors, Pedan, Mehaffy, Duffy and Share; therefore, when the 6000 dollars were paid, she was still entitled to have of all and each of those obligors, Pedan, Mehaffy, Duffy and Share, the residue of 3322 dollars 43\ cents.</p> <p>The consequence is, that if Henry Share had brought his suit for contribution before the payment of this last-mentioned sum, he could not have proved that he had paid the whole óf Pedan’s' part of the bond—he could, at the most, have shown that he had a portion of it only; and had he sued for Duffy’s contributary share of one-third of the amount of Pedan’s part of the bond, on the ground of having paid such amount to Mrs Evans, he must have failed, since the cause of his action did not accrue until she received the sum paid to her, on the 26th of June 1821, and the balance due on her judgment. The right to contribution, as it was alleged and set forth in. Henry Share’s suit against Duffy, was an entire demand, and as this right was not complete until the last payment to Mrs Evans was made, I am of opinion that the action for the same did not accrue to Henry Share until the 26th of June 1821.</p> <p>The suit in his name against James Duffy to June term 1827, No. 90, having been commenced on the 1st of June 1827, was brought within six years after, the cause of action accrued: and the act of limitations, if pleaded, would have been no bar.</p> <p>The second ground of defence is, that Joseph Lytle had no notice of the suit against Duffy for his contributary share, and that, therefore, the plaintiff here ought not to recover. This conclusion cannot be sustained. The circumstance would be a good ground of objection to the judgment in that case, were it presented as an estoppel or evidence concluding the defendants here; but if it be shown that Henry Share had a sufficient cause of action and was entitled to recover from James Duffy contribution for his share of John Pedan’s portion of Mrs Evans’s bond, the fact of his recovery is available in the suit upon the bond of indemnity, though Joseph Lytle was not warned, by James Duffy, or called upon to defend the other suit. Now, Henry Share having paid John Pedan’s part of the bond due to Mrs Evans, was entitled thereupon to have and demand of James Duffy, a co-obligor, his contributary proportion of such part; and thus a sufficient cause of action againt James Duffy is manifest.</p> <p>The third ground is, that the plaintiff ought not to recover, because the judgment in Share et at. v. Duffy, and the assignment of the claim of indemnity'by the latter, were a fraud upon Joseph Lytle. No fraud, in fact, has been suggested: but the confession of judgment and the assignment of Duffy’s interest in the bond of indemnity are asserted to be a fraud in law. In point of law, however, there is nothing irregular in the confession of judgment by J. Duffy, or in the assignment. With respect to the judgment, it does not appear he had, or could have any defence against Henry Share’s demand of contribution, and the judgment was therefore proper, and indeed unavoidable. As to the assignment, James Duffy had a perfect right to make it, and having made it for the purpose of obtaining satisfaction of the judgment against him at the suit of Henry Share, the consideration is abundantly sufficient. It is to be observed, that by this bond of indemnity, John Pedan and Joseph Lytle appear to have considered and treated James Mehaffy and James Duffy as sureties. The probability, deducible from the fact of giving it, is, that it was not expected then that Pedan would be; able to pay Mrs Evans the 3616 dollars 71 cents which he was bound to pay her: but it was believed that this duty would devolve in the whole or in part upon his co-obligors, Mehaffy and Duffy. On no other supposition is it explicable why such a bond should have been given to them, and a similar one not taken from them at the same time. For if they all stood on equal ground in regard to their ability to pay, Pedan had as much right to a bond of indemnity from them as they had to one from him. Although Joseph Lytle was, in the first instance, a surety for Pedan merely, yet by executing this bond of indemnity, Pedan and he placed themselves in the position of principals, and Mehaffy and Duffy in that of their sureties. This view of the case may be important in several respects, but it strikes me as material in relation to the allegations by which the defendant has attempted to support the third ground of his defence, and to the cases of Miller v. Hovvey, 3 Term Rep. 3, 4, and Touissant v. Martinnant, 3 Term Rep. 100, which become applicable to the transaction in this light.</p> <p>I think the defendant has failed to sustain this ground of his defence.</p> <p>The fourth and last ground is, that the plaintiff ought not to recover, because Duffy paid nothing, was insolvent, and was not and could not be damnified: or, if the plaintiff be entitled to recover at all, the damages should be nominal. These are precisely the objections that were overruled by the supreme court in the case of the Harrisburg Bank v. Douglass, in 4 Watts 95. Douglass had drawn two notes, which were endorsed by Parsons, to the Bank, and to indemnify his endorser, gave him a judgment for 4000 dollars. Both parties (drawer and endorser) became embarrassed; the notes were not paid, and in December, 1834, Parsons assigned this judgment to the Bank. Afterwards, in February 1835, the Bank obtained judgment against Parsons as endorser. • “ The assignee of Parsons,” it was said, “ can be in no better situation than Parsons. Parsons having paid nothing, could not recover more than would be necessary to indemnify him for the judgment obtained against him. This could be only nominal; but his insolvency makes it improbable that he will actually pay any thing.” All these positions, which were taken by the court below, were overturned by the supreme court, who held that neither the Bank nor the surety was bound to wait till the surety was actually prejudiced by the default of the principal. The principal was bound to keep the surety not only indemnified but unmolested. The court below erred in thinking the bond could not be enforced before the surety was prejudiced, and that the right of the Bank might be effected by the equities between him and his principal.” This determination. runs with the current of authorities. Putting the obligee in danger of being arrested is a damnification. See Miller v. Howey, and the case there cited; and Ross’s Executors v.' Rittenhouse, 1 Yeates 460, with the authorities there cited and referred to.</p> <p>Is there any material difference between the case of the Bank v. Douglass, and that under consideration? I conceive there is not. The bank stood to Parsons and Douglass as Henry Share did to Duffy and Pedan—Share had paid Pedan’s debt, and Pedan, had he been able, must have repaid him; as Douglass, had he been able, must have paid the bank. Duffy was liable to pay Share, on account of his payment of Pedan’s debt, and to indemnify him against this liability, Pedan and Lytle entered into the bond now-under consideration—just as Douglass gave Parsons that judgment, to indemnify him against the liability of his endorsement. Share having sued Duffy on his liability, and obtained judgment, the latter, to satisfy this judgment, assigned his interest to Share, in the bond of Pedan and Lytle—Parsons assigned to the bank his judgment against Douglass, though before the bank had obtained judgment against him on his endorsement. Was Duffy insolvent ? So was Parsons. Had Duffy paid nothing ? So had not Parsons. But the idea that nominal damages only, were on these grounds recoverable by his assignee, the bank, was repudiated by the supreme court; and it was held that the judgment assigned was available to the full extent of the bank’s demands for the note it had discounted. In short, the only considerable difference between the cases, (and this is one I think by no means essential,) is that in The Bank v. Douglass, the subject assigned was a judgment for indemnity, whereas, in the present case, it was a bond of indemnity, though judgment has since been rendered upon it. I say I do not regard this difference as essential, because the damnification of Duffy was complete, not only by the judgment in the suit of Henry Share, &e. against him, but by the commencement of that action.</p> <p>With this opinion of the grounds of defence, it only remains to consider the measure of damages which the plaintiff is entitled to recover; and from what has been said; it follows that he is entitled to recover that proportion of John Pedan’s debt paid by H. Share, which James Duffy was bound to contribute, with interest, deducting the sum of 1000 dollars, paid by Joseph Lytle, on the 15th of August 1818, and adding the one-third of the costs of the venditioni exponas against Share, with interest, and the costs in the suit to June term 1827, No. 90. The amount is 2706 dollars 70 cents, which sum I think the plaintiff is entitled to recover as his damages in this case.</p>

<p>ERROR to the common pleas of Berks county.</p> <p>Henry W. Smith against Daniel Stroble. Ejectment for one hundred acres of land. The plaintiff, after having.given in evidence a judgment and execution against William Senger and a sale of the land in. dispute as his property to him, gave in evidence the sheriff’s deed, dated the 12th of January 1S37, and acknowledged the same day.. It also appeared ■ in evidence that the sale had been made to the.plaintiff on the 11th of January 1837, by adjournment from the 22d of -December 1836. The return day of the venditioni exponas, upon which the land was sold, was on the 2d of January 1837. It also appeared in evidence that Stroble, the defendant, was a judgment .creditor of Senger and took the amount of his judgment out of the proceeds of the sale.</p> <p>The defendant’s counsel requested the court to charge the jury upon these points:</p> <p>l. “ That the plaintiff, not having complied with the requisitions of the 9.7th section of the act-'of.the 16th of June 1S36, directing and requiring that no. acknowledgment of any sheriff’s deed shall be allowed by the court-, unless the same shall be made upon public proclamation in open .court, at a time to be. appointed by the court for the purpose, or notice shall have previously been affixed in the office of.the prothonotary, specifying.the names of the parties to the.execution, and the name of the purchaser of such real estate, and the time at which said acknowledgment is , intended to be made, at least one week after the return day of the.writ of execution,” he cannot recover.</p> <p>. .2. “The plaintiff cannot recover, because the sale was made after the return day of the writ, contrary,to. the provisions of the act of assembly before mentioned.”</p> <p>Banks, president. “ In answer to the first point, it appears that the acknowledgment was not made in conformity to the directions of the act. It is, however, conceded that Senger was the owner of the land, the defendant appears to be a mere trespasser. He has not shown any right in himself under Senger, or connection with him. He has not shown any right at all. I do not think that he can avail himself of any defect in the plaintiff’s title. If Senger was satisfied, it is not for strangers to complain. It does not affect them injuriously. The provision was intended for the benefit of those interested. If they are content, strangers cannot interpose difficulties. It appears that the defendant had a lien on this same land, amounting to 474 dollars. This money was drawn and received by him out of the proceeds of the sheriff’s sale. This would and does estop him from taking any advantage in this action of the matter proposed by the first point. For these reasons we refuse to charge as requested in the defendant’s first point.”</p> <p>“ There is nothing in the second point, and we refuse to charge as we are therein requested.”</p>

<p>k tenant may support an action of trespass quare clausum fregit, against his landlord for an injury done to his way-going crop, after the expiration, of the lease, and after he had removed from the premises.</p>

<p>The presumption of payment of an administration bond does not begin to run from its date, but from the time when the plaintiff is entitled to resort to it:— hence, in an action by a creditor against the surety in such bond, the time will be computed from the period when the administrator was fixed personally for the debt; and this is a question of law for the court.</p> <p>A judgment will not be reversed because of the admission of incompetent evidence of what had been otherwise conclusively established.</p>

<p>The stock which a bank owns in another corporation, or its own, is not subject to taxation for school purposes, under the provisions of the act of the 25th of March 1831.</p> <p>Nor does the bank waive its objection to the assessment of such a tax, by its omission to appeal therefrom, in the manner prescribed by the sixth section of that act.</p>

<p>ERROR to the common pleas of Franklin county.</p> <p>Joseph Menor and wife, for the use of Jacob Welsh, executor of Catherine Mentzer, against the administrator of Daniel Mentzer, with notice to Barbara Snowberger, terre-tenant.</p> <p>Scire facias sur recognizance and special verdict.</p> <p>David Mentzer died in 1818 intestate, seised in fee of a large real estate; a partition and valuation were had of the same, and in October 18.18, Daniel Mentzer, son of the intestate, took purpart third at the valuation, and entered into recognizance to the widow, Catherine, and' the other heirs, for their respective shares, and amongst them to Joseph Hone and Elizabeth, his wife, and Joseph Menor and Catherine, his wife; said Elizabeth and Catherine being daughters of said David Mentzer, the intestate.</p> <p>' Daniel Mentzer, the son, died intestate. In 1827, Joseph Hone and wife issued a scire facias against John Bittenger, administrator of Daniel Mentzer, on said recognizance, with notice to terre-tenants, for the first part payable, and obtained judgment. A fieri facias was issued oil this judgment, at the suit of Hone and wife, and levied on the tract of land taken by said Daniel at the valuation.</p> <p>A venditioni exponas was issued to August term 1828, and the same was sold at sheriff’s sale on the 13th of August 1828, to Joseph Hone, the plaintiff, for 800 dollars. Auditors were appointed, and the said purchase-money, raised by said sheriff’s sale, was .apportioned amongst the recognizance creditors .of said Daniel. Catherine, the widow, received a portion in her own right, for ■what was before due her as widow, and also as assignee of Joseph Menor and wife, on the recognizance of said Daniel to said Menor and wife.</p> <p>Catherine Mentzer, widow, died in March 1834, having made her will and appointed Jacob Welsh her executor. A scire facias issued to August term 1838, on the recognizance of said Daniel Mentzer to Joseph Menor and wife, for the use of Catherine Ment■zer’s executor, against J. Bittinger, administrator of Daniel Mentzer, with notice to terre-tenants of said land, sold at sheriff’s sale to Joseph Hone in 1828, and since sold and conveyed by said Hone and wife to Barbara Snowberger, and for the purpose of recovering the money payable at the death of the widow to Menor and wife.</p> <p>The court below (Thompson, president) rendered a judgment for the plaintiff.</p>

<p>It is not a sufficient reason to arrest a judgment in an action of slander, that the innuendo enlarges the natural meaning of the words spolcen.</p> <p>The words “ He had the money, for he hunted for it, and was seen there where the money was deposited,” although not of themselves actionable without the aid of a colloquium, yet when connected with another count in the declaration, in which a colloquium is stated, by a distinct reference, a verdict and judgment upon both is good.</p>

<p>It is a good cause of challenge to a juror that he is the tenant of one of the plaintiffs.</p> <p>In an action against the maker of a note, by the holder; whether the endorser be a competent witness for the defendant, depends upon the character of the evidence which he is to give; he is incompetent to establish a want of consideration for the note, but it seems he would be'competent to prove a direct payment of it by the maker.</p> <p>In an action by the holder of a note against the maker, a check drawn by the defendant on the bank, is not competent evidence, without previously showing that the drawer of it had funds with which to pay it.</p> <p>It is error for a court so to charge the jury upon matters of fact, as to mislead them from the true point of inquiry.</p>

<p>ERROR to the common pleas of Juniata county.</p> <p>This was an action of ejectment by John Norris, Esquire, against John Devinney and others, for a tract of land in Lock township. The original title to the land was in Thomas M’Cleary, who conveyed the same to Daniel Devinney on the 30th of March 1800. The plaintiff then gave in evidence the record of a judgment of D. Watts and John Norris against Daniel Devinney for 405 dollars, upon which executions issued, and the land was sold by the sheriff on the 23d of January 1808, to W. W. Laird, for 105 dollars, who, on the 13th of January 1816, conveyed the same to James Criswell, against whom judgment was obtained, execution issued, and the land was levied and sold on the 19th of April 1S30, to John Norris, the plaintiff.</p> <p>The defendants gave evidence to establish the fact that, after the sale of the land upon the execution of Watts and Norris for 105 dollars, other executions were issued upon the same judgment, and the whole amount of it was collected from the defendant, and therefore Norris, the plaintiff, was now estopped from claiming the land, the sale of which he had treated as a nullity, by not crediting in his judgment the proceeds of it. But the court below (Reed, president) instructed the jury, that even if the fact was as alleged (which did not, however, appear from the evidence) it would not bar the plaintiff’s right to recover.</p> <p>The defendants also proved that when the sheriff held an inquest upon the land on the execution of Watts and Norris, W. W. Laird appeared before the jury, as the attorney of Daniel Devinney, to prevent the condemnation; and contended, thereupon, that the relation of attorney and client thus existed between W. W. Laird and DanieL Devinney, by which Laird was precluded afterwards from becoming the purchaser at sheriff’s sale,, and that his purchase enured for the benefit of his client:—but the court instructed the jury that such was not the law. Verdict for the plaintiff.</p>

<p>A turnpike company, in which the state holds stock, is not such a public corporation as is exempt from the operation of the act of the 16th of June 1836, which gives jurisdiction to the courts, upon the application of a creditor, to sequester the goods, credits, profits and tolls of the corporation for the payment of its debts.</p> <p>The court in which the judgment against such corporation was obtained, has jurisdiction over all its property and estate, although part of it may not be within the same county.</p>

<p>ERROR to the common pleas of Cumberland county.</p> <p>Frederick Watts, Esquire, against Dr L. L. Near. Amicable action.</p> <p>The parties agree to the following facts, to be considered in the nature of a special verdict, with leave to either party to sue out a writ of error without oath or bail.</p> <p>On the 2d of August 1837, Dr L. L. Near obtained a judgment against Dr William C. Chambers for 11,645 dollars, upon which a fieri facias was issued the same day, and was levied on personal property, which was sold to the amount of 9185 dollars 80 cents. On the 22d of November 1837, a fieri facias was issued for the residue, which was levied on the life estate of Dr William C. Chambers in a tract of land and mill. An inquisition was held, and the jurors, taking into consideration the value of the property and the expenses for taxes and repairs, only found the annual value to be 404 dollars. There was no judgment but' that of Dr Near exhibited to the jury. On the 8th of February 1838, a liberari facias was issued, which was executed; and on the 12th of February 1838, the possession of the said property was delivered to the plaintiff in the execution.</p> <p>On the same 2d of August 1837, F. Watts, Esq., obtained a judgment against Dr William C. Chambers for 1925 dollars 50 cents, upon which a fieri facias was issued on the 7th of August 1837, and which was levied on all the defendant’s real estate, embracing several tracts of land and lots of ground, and also the life estate of the said Chambers in the tract of land and mill before mentioned. On the 26th of August 1837, Dr W. C. Chambers signed an agreement, that the property thus levied should be considered as condemned, without inquisition. On the 1st of September 1837, a venditioni exponas was issued, which was returned on the 20th of November 1837, that all the property was sold, including the life estate aforesaid; the sales amounted to 22,738 dollars.</p> <p>On the 13th of November 1S37, Dr L. L. Near, by his counsel, filed exceptions to the sale of the said life estate, and on the 20th of November 1837, he filed additional exceptions; and the said sale of the life estate was set aside, on the ground that it was not the subject of sale. On the 15th of December 1837, on motion of Dr Near, by his counsel, rule—that the proceeds of the sheriff’s sales be brought into court for appropriation; and on the 10th of February 1838, the money was appropriated; and after paying all previous judgments, there was a balance to be applied pro rata to the judgments of the said Dr Near and F. Watts, Esq., of 336 dollars 34 cents, and the same was so paid.</p> <p>On the 24th of February 1838, a fieri facias post venditioni exponas was issued upon the judgment of F. Watts, Esq., v. Dr Chambers, which was levied on the life estate of the defendant in the aforesaid tract of land and mill, upon which an inquisition was held, and the jury, upon the judgment of F. Watts, Esq., none .other having been exhibited, and evidence of the taxes and repairs, as in the case of Dr Near, returned that the property was of the annual value of 404 dollars.</p> <p>And a conversation was had and moved by and between the said Dr L. L. Near and the said Frederick Watts, on the subject of the said judgments, executions and life estate, wherein the said Dr Near affirmed that the proceedings had upon his judgment, by which he was put in possession of the said life estate, entitled him to the exclusive possession and receipts of the profits of the said estate until his debt was paid; and by reason of having the first fieri facias, levy and inquisition, and liberari facias executed as aforesaid, he could not be dispossessed or disturbed in the possession or exclusive receipt of the profits of the said estate until his debt was paid; and that it was unlawful for the said F. Watts to institute any proceeding upon his judgment, by which he would be entitled to any part of the annual value of the said life estate until Dr Near’s judgment was satisfied; and the said F. Watts denied that the said Dr L. L. Near was lawfully entitled, under the proceedings upon his judgment, to have the exclusive possession and receipt of the annual profits of the said life estate; and that it would be lawful for him, the said F. Watts, to have the said inquisition and liberari facias set aside, and to proceed upon his judgment under the act of assembly in such cases provided, in such manner as that the annual profits of the same should be applied aud distributed, pro rata, to and between the said judgments of the said F. Watts and the said Dr L. L. Near. And the said Dr Near, in consideration of the said F. Watts having promised to pay him five dollars, in the event of his being entitled to proceed in such manner as to entitle him to a pro rata of the annual value of the said life estate, the said Dr Near promised to pay him, the said F. Watts, five dollars in the event of his not being entitled to the whole amount of the proceeds of the said life estate, and the exclusive possession of the same until his debt is paid. And the said F. Watts thus affirms and the said Dr Near denies. Issue.</p> <p>And the parties hereby admit the premises and assumptions there laid, and refer the matter to the court. If the court shall be of opinion that tire said F. Watts may lawfully proceed upon his judgment, in any manner to'entitle himself to a portion of the annual value of the said life estate, before the judgment of the said Dr Near shall be fully satisfied, then judgment to be entered for the plaintiff; but if the said Dr L. L. Near, is entitled to have the whole proceeds and possession of the said life estate until his debt be fully paid, by reason of the proceedings so as aforesaid had upon his judgment, then judgment to be entered for the defendant. The parties agree to waive all matters of form in this case, the object being to ascertain whether, upon all the facts of the case, Dr Near’s proceedings upon his judgment are legal and valid, so that the same should not be set aside, and so as to preclude the said F. Watts from proceeding in any manner upon his judgment, so as to entitle himself to a pro rata share of the annual value of the said life estate. The records herein referred to are made part of this case, &c., &c., &c.</p> <p>Upon this statement of facts, the court below rendered a judgment for the plaintiff.</p>

Christian Harting against Simon Kohl. Issue directed by the court of common pleas to ascertain what part of the money, if any, Christian Harting is entitled to, arising from the sheriff’s sale of the real estate sold as the property of David Kohl, upon a judgment and execution at the suit of Frederick Moyer, administrator of Andrew Greiner, deceased. Rebecca Kohl was the owner of the land in regard to which this controversy first arose.

QUO WARRANTO.—On the twenty-third day of May, one thousand eight hundred and thirty-nine, Mr Johnson, the attorney-general, filed in the supreme court a suggestion as follows: Pennsylvania, ss.—Be it… Held: by Joseph Ritner, Esq., then being governor of the said commonwealth of Pennsylvania, under and in virtue of the fifth section of the schedule to the said amended constitution,.

<p>ERROR, to the common pleas of Dauphin county.</p> <p>William Bale against Daniel Meader, Moses Meader, and Robert Gilchrist. This was an action of trespass on the case', for persuading, procuring, and enticing away the plaintiff’s wife, for the purpose (as it was laid in two of the counts) “ of affording a more convenient'and uninterrupted opportunity to one of the said defendants (Gilchrist) to maintain, keep up, and continue, an unlawful criminal intercourse with the said wife of the plaintiff.” Daniel and Moses Meader, two of the defendants were the father and brother of the plaintiff’s wife.</p> <p>After the plaintiff had established his case by proof, defendant offered to prove, that about ten days before Mrs Bale left her husband, she complained to Doctor Houtze, her attending physician, that her husband had treated her badly; had beat her, and showed marks on her arms she said she received by his beating, and asked him what she should do, and that he advised her to go to her father’s and leave her husband, and that in ten or twelve days she went to her father’s, and left her husband, in connection with proof that Bale treated her kindly as long as he thought he could get the 1000, dollar bond of Gilchrist to her, and when he found he could not get it, he treated, her badly.</p> <p>The plaintiff objected, that the declarations of the wife were not competent evidence. The court sustained the objection, and sealed a bill of exception at the instance of the defendant.</p> <p>The defendant offered in evidence the record of an action of trespass by William Bale against Robert Gilchrist, founded upon the same transaction, but laid in the form of a trespass thus:—For that the said Robert Gilchrist, on the 30th day of July, in the year of our Lord one thousand eight hundred and thirty-six, and on divers other days and times between that day and the day of the commencement of this suit, with force and arms, &c., assaulted and ill-treated Sarah Bale, then and still being the wife of the said William Bale, to wit: at Dauphin county aforesaid, and then and there debauched and carnally knew her, whereby he the said William Bale, for a long space of time, to wit, from the day and year first above mentioned, hitherto hath wholly lost and been deprived of the comfort, fellowship, aid and assistance of his said wife in his domestic affairs, which he the said William Bale, during all that time, ought to have had, and otherwise might and would have had, to wit, at Dauphin county aforesaid. And other wrongs to the said William Bale, then and there did against the peace, &c., and to the damage of the said William Bale, of 5000 dollars, and therefore he brings suit, &c.</p> <p>In this action the plaintiff recovered a judgment for 225 dollars damages.</p> <p>The plaintiff objected to this evidence as irrelevant, and the court rejected it, and sealed a bill of exceptions.</p>

<p>In an action on a contract of guaranty, that a promissory note, payable to J. S. or bearer, “ is collectible,” insolvency of the maker excuses the want of an attempt to collect the debt from him by process.</p> <p>But such an action can be maintained only by him with whom the contract was made, and consequently not by a subsequent holder of the note.</p> <p>And no presumption arises that a holder, not named, either in the note or in the guaranty, was a party to the contract.</p>

<p>ERROR to the common pleas of Columbia county.</p> <p>■ Margaret M’Donald and others against Joseph Maus. Ejectment for a tract of land. The plaintiffs gave in evidence a legal and regular title in themselves.</p> <p>The defendant relied upon a title derived by him by virtue of an assessment and sale of the land as unseated for taxes.</p> <p>The objection to that title was, that the defendant had given no bond to the treasurer for the surplus of the purchase-money after payment of the taxes and costs. On this subject there was no positive evidence whether a bond was given or not. But the court below being of opinion that, whether there was proof of it or not, the defendant’s title was good, so instructed the jury, who found a verdict accordingly.</p>

<p>The law raises no implied promise to pay; from the mere fact of a mother’s maintenance of her child, the presumption is, that she furnished it gratuitously, without regard to the means of either.</p>

The Commonwealth for the use of Esther Slocum against Ebenezer Slocum, Aaron Brown, arid James Nesbit.

S. B. Denton against A. Pritchard and Asahel Pritchard. This suit, originated before a justice of the peace, upon the following note: “ On or before the 1st of May next, for value received, we promise to pay Isaac C. Whitehead, or bearer, ninety-five dollars, without defalcation, or stay of execution : hereby waiving our right to appeal in case judgment should be given against us on said note.

Hugh Bellas against Christian Houtz. Ejectment. This writ was issued in Northumberland county, and was returned served by the sheriff of Union county, who had been deputed for that purpose by the sheriff of Northumberland. The court below set aside the service of the writ.

<p>A contract between a vendor and vendee, to entitle itself to the assistance of a chancellor for specific execution, must have originated from a pure source; and if founded upon a breach of faith by the vendor, specific performance will not be decreed in favour of the vendee, although innocent of it: but he will be left to his action at law for damages.</p> <p>Lapse of time, change of circumstances, and indifference on the part of the vendee of land, are circumstances to induce a chancellor to refuse a decree of specific performance.</p>

Isaac Zeigler against Christian Hautz. This was an action of ejectment for the undivided fifth part of a tract of land in Coal township, containing seventy-five acres. The testimony, which was very voluminous, so far as it is necessary to an accurate understanding of the points raised and decided, is fully stated in the opinion of the court.

John M. Hays obtained a judgment'against Baltzer Quiggle, David Fink, and William Mahaffy, the two former being principals, and the latter as surety. In 1888 an execution was issued upon it, and the property of Quiggle was sold, but not for a sum sufficient to pay the debt, and William Mahaffy paid it. In 1836, Quiggle being dead, Mahaffy brought suit against. Fink for the money laid out and expended, which was tried in May 1838, and a verdict rendered for the defendant..

Reuben Holgate against William Switland. . The plaintiff’s action was founded upon the following facts: James and Reuben Holgate had obtained a judgment before a justice, against Peter Shaffer, for 100 dollars, upon which an execution issued and was delivered to constable Seagreaves, who levied upon the personal property of the defendant, whereupon the following paper was made and handed to the constable: “ Mr/ Seagreaves, “ Sir,—If you will let the execution against Peter…

<p>ERROR to the common pleas of Luzerne county.</p> <p>■ John Koons against Titus Seward. This action was founded upon the following facts: John Koons, the plaintiff, had sued Joseph Watson by capias, before a justice; while the capias was in the hands of the constable, the present defendant, Titus Seward, executed the following paper:</p> <p>“ Í agree that Joseph Watson shall answer the within capias on Saturday, the 25th, at one o’clock, P. M.; if not, I will pay debt and cost of the within. As witness my hand this 18th day of September 1830. ' Tittjs Seward.</p> <p>“ I assign the above bond to John Koons, the plaintiff in the within capias. M. Williams, constable. Oct. 2, 1830.”</p> <p>The defendant did not appear at the time fixed, and the justice rendered a judgment against him for 9S dollars 29 cents.</p> <p>This suit was then brought upon the above agreement. The plaintiff having given the proceedings of the justice and his judgment in evidence, offered the agreement. It was objected to by the defendant, on the ground that it was illegal; and the court rejected it and sealed a bill of exceptions.</p>

Joseph Robins against William Kitchen. Replevin for a horse which had been taken by the defendant as the property of the plaintiff, upon the warrant of Thomas Woodside, landlord, for ten dollars rent. The defendant avowed the taking, and made cognizance as the bailiff of Thomas Woodside, and went to trial upon the issue of non demisit, and no rent in arrear. The plaintiff gáve the lease in evidence, after proving it by the subscribing witness.

Thomas Stewartson surviving executor of Henry Drinker, deceased, against Andrew Watts. This was an action of ejectment for one hundred and eighteen acres of land.

Jacob and Daniel Graffius against Robert Allen and Henry Harman.

The Commonwealth of Pennsylvania, for the use of Jabel Carver, against John Evans, Benjamin Jenkins, and George Miller. This was an action upon the official bond of John Evans, who was a constable. Carver had previously sued Evans himself and obtained a judgment against him; and, when this suit was brought, Evans had applied for the benefit of the insolvent laws, but had not been discharged. Parol proof was given that Evans was insolvent, however, when this suit was brought.

Jackson, Deuel & Co. against Benjamin Newton. Case in as sumpsit. The plaintiff’s action was founded upon the following note and endorsement: “Dundaff, 16th Dec. 1834. “ Eight months after date, for value received, I promise to pay to the order of Benjamin Newton, seven hundred and forty-one dollars and eighty-three cents. (Signed) “ Geo.

Roger Devling against Jane Hunt and others. Ejectment for fourteen acres 143 perches of land. Joseph Hunter the elder was the owner of a large tract of land, containing about two hundred acres, which in his lifetime, in 1797, he divided by a line run across the tract; he put his son, Jesse Hunt, in possession of one of the parts, and another of his children, Joseph Hunt, in possession •of one-half of the other part.

Caleb Carmalt, assignee of Robert H. Rose, against Simeon Cook, with notice to Isaac Post. Scire facias sur mortgage. •The defendant pleaded payment with leave, and. replication non soluit. Issue. The plaintiff gave in evidence the mortgage and assignment of it to him, dated 26th of July lb2S, and admitted some direct payments on account.

Caesar Laurent Conte De Chaustelleux and Louisa Zephine De Damas, his wife, against Abel Fairchild and Reuben White. This was an action of replevin for four hundred white pine saw logs, which the plaintiffs alleged the defendants had taken from' their close, and carried away. The objection to the action was, that the husband and wife had joined in an action to recover the personal effects of the husband.

<p>The orphans’ court cannot exercise jurisdiction upon a petition for a writ of partition and valuation of an estate, of which the intestate was a tenant in common with another person at the time of his death. And if any portion of his estate thus held, be included in the proceedings, it vitiates the whole, although the other tenant in common assents to it.</p>

<p>ERROR to the common pleas of Northumberland county.</p> <p>Joseph B. Snyder and John P. Snyder against John Markel. Ejectment for a house and lot in Milton.</p> <p>John A. Snyder, the father of the plaintiffs, died seised of the lot in controversy, having first made a will, by which he devised it to the plaintiffs, and appointed Joseph Bound, Adam Steitzel and Philip H. Snyder, his executors. In 1818, these executors petitioned the orphans’ court to grant them an order for the sale of the real estate of the testator, including the house and lot in dispute, for the payment of debts. ' Annexed to their petition was this statement:</p> <p>“Estate of John A. Snyder, deceased, Dr.</p> <p>Amount of debts paid by executors, - - $10,500</p> <p>Do. of debts yet due, - 11,500</p> <p>$22,000</p> <p>Cr. estate by amount of inventory, - - 19,000</p> <p>$3,000</p> <p>The court granted the order and the sale was made, returned and confirmed, to Solomon Ludwig. Under this title the defendant claimed. There was proof of fraud in the making of the sale on the part of the executors, out of which two questions arose: Whether the orphans’ court had jurisdiction of the subject before a final administration account of the personal assets had been settled? And whether the defendant, being an innocent purchaser, without notice of the fraud, would be affected by it ?</p> <p>Lewis, president, ruled both these points for the defendant, on the ground that the validity of the decree of the orphans’ court wa§ not the subject of a collateral inquiry, and that the defendant purchased upon the faith of it, and without notice of the fraud.</p>

Hugh Bellas against David Richardson, with notice to William Silverwood. Foreign attachment.

Eli Baird against Tobias Lent. Ejectment for a tract of land, in which the following facts were stated to be considered in the nature of a special verdict. Rollin Wheeler contracted with V. Le Ray de Chaumont, by articles of agreement by which the said Wheeler agreed to pay the said Le Ray a stipulated sum in yearly payments, on the payment of which the said V. Le Ray was to make a deed of conveyance to said Wheeler of the premises.

In this case, a judgment was originally entered by Chauncey A. Reynolds against James D. Gallup, for the'sum'of 2100 dollars upon a judgment bond in the usual form, with a warrant of attorney contained therein, upon which a fieri facias issued to August term 1832, No. 48.

Peter Althouse against Daniel Nerhooth. Ejectment for a tract of land. The facts which gave rise to the only principle decided in this cause, are distinctly stated in the opinion of the court.

John Myers and Harvey Kellogg against Henry B. Myers. Ejectment for a tract of land. The proof was, that an actual resident settlement had been made upon the land in dispute, by Jeremiah Myers, 'who sold to Harman Lovelace, who continued it; that a judgment was obtained against Lovelace, upon which execution issued, and the land was levied and sold by the sheriff to the plaintiffs, who brought this ejectment to recover the possession.

The overseers of the poor of Briar Creek township against the overseers of the poor of Mount Pleasant township, Columbia county. Appeal from the order of two justices. The facts are distinctly stated in the opinion of the Court.

This was an action of ejectment by Reuben Molleson against Nathaniel Stark and others, which involved the construction of the will of Reuben Molleson, Sen., the material part of which was as follows: “ I give and bequeath unto John Molleson, my beloved son, the use of all the remainder of my lands which have not been bequeathed before. He, the said John, is to maintain George Molleson and Rhoda Molleson until each arrives to the age of fifteen years.

<p>The right to navigate a public river, transverse or otherwise, is susceptible of exclusive appropriation only by grant from the public to whom it belongs; and we have, consequently, no such thing as a ferry by prescriptive right, or presumptive grant of exclusive navigation from length of time. But the owners of the shores have the power to control the subservient and indispensable right of embarkation and landing, even at the terminus of a public road.</p> <p>The grant of a privilege of landing and embarking ferry boats upon the land of another, may be presumed from the use of it, for a long time. And the ordinary and occasional use of it, would be such an occupation of the privilege as would be noted- toa purchaser of the land, out of which the privilege was granted.</p> <p>The grant of a privilege to land and embark ferry boats upon the land of another, which was held by a Connecticut title, is not affected by a grant of that title from Pennsylvania, which did not extinguish, but confirm the Connecticut title.</p> <p>The lessor of an easement is a competent witness for the lessee in an action brought against a stranger for a disturbance of it.</p>

<p>The assignee of a judgment takes it subject to all the equities which exist between the parties to it. Hence, if the defendant in such judgment had, prior to the assignment, obtained a judgment against the plaintiff, upon an independent cause of action, it is such an equity as is available as a defence against the assignee, in a scire facias, upon the judgment assigned to him.</p>

' ERROR to the common pleas of Susquehanna county. Sylvester Smith against Warren Price. Replevin for a horse. On the trial of the cause the defendant called T. B. Smith, the son of the plaintiff, as a witness, who gave his testimony to the jury; after which the defendant offered to prove that the said T. B. Smith swore differently before arbitrators, by whom the cause had been tried. To which the plaintiff objected, but the court overruled the objection.

<p>The accidental erasure of the signature or seals of two sureties to an obligation for the payment of money, does not render void the instrument as to a third surety, nor would that effect be produced by the restoration of the signature without the seals, and without the consent of the other obligor.</p> <p>Taking a judgment from one of four joint and several obligors, does not affect tbe responsibility of the others.</p> <p>A mere gratuitous indulgence of the principal, does not release the surety.</p>

John Cummins, Esq., against The Williamsport and Elmira Railroad Company. Upon the petition of the company, reviewers were appointed under their charter, to examine the land of John Cummins, Esq., and make report what amount of damage, if any, would be sustained by him, by reason of the construction of the road through his lands; and they made report that he was entitled to no damage.

<p>THE plaintiff brought an action on the case, in the district court of Allegheny county, against the defendant, as postmaster of the office in Pittsburg, for the loss óf a letter containing 650 dollars in bank notes, put into the office by his agent in Shanesville, Ohio, and directed to him at New Berlin, Pennsylvania. The declaration contained averments that the letter was mailed at the office in Shanesville, and received for distribution at the office in Pittsburg, by the regular course of the mail; and that it was the defendant’s duty to have caused it to be maijed again for the distributing office in Chambersburg. “ Nevertheless, the said David Lynch did not so as aforesaid, then or there as last aforesaid, nor ever afterwards, reput up, remail, and deliver to be carried as aforesaid, the said packet, consisting of the said letter and the notes inclosed, so as aforesaid the property of the said Christian Schroyer; but on the contrary thereof, wholly neglected and refused so to do: by reason whereof,” &c. Nothing appeared in the evidence to rebut the presumption that the letter had reached the office in Pittsburg; and it was pretty well ascertained that it had been purloined there by an assistant subsequently discharged for embezzling the post-office funds. Instead of negligence, the proof was of diligence and proper -attention by the defendant to the official conduct of the subordinates, though it was proved that the delinquent had previously been guilty of opening a letter to a pensioner—a fact that had been concealed from the defendant. It was proved, also, that the assistants are paid by the department; that they take an oath prescribed by congress; and that their names are registered in the books of the general post-office at Washington. Under a direction that if the defendant had faithfully discharged his own peculiar duties as head of the office, there could not, on the pleadings, be a verdict against him for the misconduct of his assistant, the jury found for him, and the plaintiff excepted.</p>

<p>When the disability of a plaintiff not only suspends the action, but destroys it altogether, it may be pleaded in bar as well as in abatement.</p> <p>If a personal action which does not survive, is brought after the death of the party, the court may abate it on motion; or, if there be doubt about the fact, should put the party to his plea, and that without regard to the previous state of the pleadings, whether the defendant had pleaded in bar or not.</p> <p>If the plaintiff in an action of dower die pending the action, it abates; there can be no substitution of her personal representatives for any purpose.</p> <p>Quxre—Whether the personal representative of a deceased widow may not maintain an action on the case against the heir for her portion of the proceeds of the estate, during the time she was kept out of possession.</p>

<p>APPEAL from the decree of the orphans’ court of Fayette county. ></p> <p>Thomas Brownfield, deceased, by his last will and testament, made the following disposition of his estate:</p> <p>“ First, I give and bequeath to my beloved wife, Mary Brownfield, one full third of the profits of my real estate and one third of my personal estate, during her life, after my just debts paid. I do also give and bequeath to my eldest daughter, Elizabeth Brownfield, she being a lunatic, meat, drink, food and apparel, washing and lodging, as her situation may require, to be taken out of my real and personal estate, at the discretion of my executor. I also give and bequeath to my daughters, Lydia and Sarah Brownfield, one good feather bed and bedding a piece. I also give and bequeath to my daughters, Ann and Lydia, and to my youngest son Isaac Brownfield, the profits of the other two remaining thirds of my real estate, during the life of said wife, Elizabeth and Anil Brownfield. And the remainder of my personal estate I give to my daughters, Ann and Lydia Brownfield, equally, the support of my eldest daughter, Elizabeth, being taken out as aforesaid.”</p> <p>Thomas Brownfield, the executor, upon the settlement of his administration account, charged himself with the personal estate, amounting to 2307 dollars, and prayed a credit for the payment of 850 dollars to Mary Brownfield, the widow. The allowance of this credit was the subject of exception by the legatees, Ann and Lydia, who claimed as residuary legatees, on the ground that the widow was entitled to but a life interest in the one third of the personal estate, and that it was embraced in the residuary clause of the will after her death, which it was admitted had then happened.</p> <p>The court below (Ewing, president) was of opinion that the-residuary .bequest did not embrace the subject of controversy; and there being, therefore, no other disposition of that part of the estate than that made to the widow, she took it absolutely, and affirmed the account as stated.</p>

<p>ERROR to the common pleas of Beaver county.</p> <p>Samuel Coovert, Wm. Coovert and Luke Coovert against Lawrence O’Conner and Wm. Ayres. The court below thus stated the case, and charged the jury:</p> <p>Bredin, president.—This ejectment is instituted to recover the possession of five acres of ground, claimed by the plaintiffs, as part of lot No. 2, of 500 acres in the first donation district. The plaintiffs have given in evidence a patent from the commonwealth to Stephen Bayard, for lot No. 2 of 500 acres, first donation district, dated the 15th of December 1786; and have given in evidence a regular claim of title, from the patentee to the plaintiffs, for the acres of land in dispute. The defendants claim, under a patent granted by the commonwealth to Benjamin Steel, for lot No. 1S16, of 200 acres, in the second donation district, dated the 17th of January 1787. As to the legal title of the plaintiffs, or the title under which the defendants claim, there is no difficulty. The controversy in this case arises on an alleged interference of the lines of lot No. 2, of 500 acres, in the first donation district, with the lines of lot No. 1S16, in the second donation district. The courses and distances in the patent for lot No. 2, of 500 acres, are as follows: ■“Beginning at a post and white oak the numbered corner, and •running east 17 perches, to a birch on Big Beaver, thence down 'said creek the following courses: south 76 degrees east, 75 perches, ■north 83 degrees east, 40 perches, south 62 degrees east, 125 perches, north 55 degrees, east 23 perches to a post; thence south 275 perches to a white oak, thence west by lot No. 19,236 perches to a post and line, thence north by lots Nos. 22 and 23, 360 perches to the place of beginning.” The courses and distances in the patent for lot No. 1816, of 200 acres in the second donation district, are as follows: “Beginning at a maple, the numbered corner, and running south by lot No. 1815, 139 perches, crossing Beaver creek to a post, thence east by lots No. 2 and 25, of district No. 1, recrossing said creek, 320 perches to a post, thence north by lot No. 87, 139 perches, to the place of beginning.</p> <p>A number of witnesses have been examined on the part of the plaintiffs, and on the part of the defendants, with regard to the lines, and also as to whether the mill is below the low water mark, or on the beach of the Mahoning creek, (called in the patent Big Beaver,) and also to prove the lines to which those who formerly-lived on these tracts claimed, and on the part of the defendants, Alexander M’Dowell proved that he traced the lines of lot No. 2 of 500 acres, in the first district, and lot No. 1816, in the second donation district. Commenced at the southeast corner of lot No. 87, 300 acres, run east to New Castle, along the district line, found marks that counted 47 years was the district line. Returned to the same corner, run west to the Mahoning, found no original marks; found blazes counting 38 years; continued west to the western boundary line of lot No. 2, first donation district, found there original marks; run north 48 perches, and found the corner of lot No. 2, a white oak; the corner was down.</p> <p>Judge Brown proved that he was called -on to make a survey for Mr Henderson. Commenced on the east side of the Shenango; run west, found the lines across Nos. 87, 88, 89, and 90; found the line well marked, and had no doubt of its being the district line. Commenced at a corner, run east, found no original mark; discovered on 88 an old line, 9 or 10 perches south of the district line; not positive whether this line was across 88 or 89; has since followed the district line to Mahoning, in 1830. Called on by John O’Conner to make survey: commenced at his northwest corner, run south to the Mahoning, crossed over, took the breadth of the creek, found corner marks there not original; took notice of a white oak old enough for the line; was with Mr M’Dowell, and his recollection corresponds with Mr M’Dowell. David Young proves, that he was with Mr M’Dowell, and agrees with his recollection of the lines and marks found. Considers the mill below common water mark; if the embankment was removed, the water would run between the mill and the bank. Mr Clark told witness he had built the mill on the public highway, and had as good a right as Mr O’Conner. No. 1816 was conveyed by Mr Lukens, in 1806: he claimed under a lease from Nathan Luff borough—Lukens occupied a sugar camp south of the Mahoning; never saw a birch where the mill stands. Wm. Cox, in 1801 or 1802, began at the Shenango, and run to the Mahoning. Lukens got Stewart to run across the creek, and found a post on a knoll, running east to the creek 17 perches, found a beech, and blocked it; counted the age of the original lines; the patent called for the meanderings of the stream; the first course dipped into the creek. On the 22d of February 1837, was sent for; commenced at the beech; run east; found no marks; a little south found marks. A red oak, with an original .mark on it; found no marks; on 87, running east, was 38 perches north of the district line. On lot No. 81, found original marks as far as traced. The district line and the county line are the same; counted the trees blocked by Mr Findley and Mr Alexander; none counted 51, but the trees mentioned. The mill is within the lines of No. 1S16, and is under the bank of the creek; could not say whether the mill is within the lines of No. 2, as he did not run the meanderings of the creek. Lot No. 89 is 16 perches north of the district line.</p> <p>Walter Oliver, Esq.—In 1829, at the request of the heirs of Stewart, made a division of No. 88, second donation district; commenced at the northeast corner run south the length of the tract, found on the lot on the east, the original line; found a new line run by Judge Brown; not satisfied as to the correctness of the south boundary line, got a draft; it called for the district line. Went to the black oak sprout that was marked, run from 10 to 12 perches south; found a marked white oak; run west; found a well marked line. Returned, run east 30 or 40 perches, to a sugar tree, said to be the corner of Mrs Miller’s tract. When I came to the woods, found a well marked line, until I came to the Stewart tract; run then north 10 perches, and was satisfied that it was the district line. Last week, on Thursday, commenced at the northwest corner of O’Conner’s tract, run south to the Mahoning creek 100 perches, the breadth of the creek 16 perches; found it including the creek 143 perches; run eastwardly to the rising ground; was shown marks, was taken to the beech corner on the bank of the creek. Commenced at the beech, run a line south 72 degrees east, 75 perches; run through a bend of the creek; run north 83 degrees east, 40 perches. Went back; took a sight down to the situation of the mill; left the mill some perches on the north side of that line, then crossed the creek, dropped east, and found it corresponded with the line; was along when Mr M’Dowell run the line. The mill is on what I call middling low water mark. No. 1816 has been occupied from 1800 to the present time; the vacancy runs out at the second tract.</p> <p>Thomas Lukens proves, that the mill is standing where the water run, and were it not for the embankment, would run south of the mill. Joshua Chenoworth proves, that he has known the tract for 35 years, that three corners of the mill are below low water mark. James Moony proves, that he was present at the building of the mill; witness found fault with the foundation of the mill. Clark said Mahoning was a navigable stream, and he would occupy it; the south side of the mill is on the five acres, according to the way the ground lies. Was present at a survey made by James Bryant, deputy surveyor of Beaver county; left the mill on the north side. James Davis made a survey; his survey agreed with Bryant’s—was along when the surveys were made.</p> <p>On the part of plaintiffs, John Findley proves that., as an artist appointed by the court, he examined the interferences. Commenced at the northwest corner of the tract, one range further west than this tract, run east from that to what was supposed to be the corner of this tract—blocked the trees, and found them to be run in 85; measured to the creek 17 perches; went to the creek, taking the meanders altogether in the creek; found no marks; his compass divided the mill-house in two parts; run the lines as we found them on the ground; they had been run at 3 degrees of a variation. Began at the beech, crossed the creek, and came to where O’Conner’s corner ought to be; found a white walnut had the appearance of an original mark; found on the maple an axe mark; counted it, and found it the age of the donation surveys. Came to the line on the eastern boundary, blocked 3 of the trees, counted from 49 to 50 years. Examined what is called the district line; found nothing older than 26 or 27 years. Some time afterwards went to the land; commenced at the beech and run to Newcastle; nearly all the way cleared land in a swamp, about one-half distance of the tract found an elm in a bunch of woods in the swamp, same age as the donation surveys. Went across the tract called the Schott tract, no marks; did not get leave to examine the next tract. I found none older than the county line; only blocked 3 trees; the nearest about a rod off the line.</p> <p>Benjamin Alexander proves, that, on the 1st of February a year ago, went, at the request of Mr Coovert, to make a survey. I ran at a variation of 3 degrees; I counted the growths of the maple; went to the corner spoken of; it was lying; it counted from 37 to 38 years; notched on three sides, north, east, and west; no notches on the south; the pointers counted 51 years. Then run down to the county line; 3 trees marked; counted from 25 to 28 years. Went back, and run from that corner south 86J degrees, west until we came to Mahoning; one set of the marks counted 36 years, and the other 51; found seven marked trees that were original.</p> <p>Two of the trees west of Mr O’Conner’s line, the tree that was fallen out of root, a black oak, counted 25 to 28 years running up the Mahoning, north 68 degrees west, 92 perches, south 82 degrees west, 50 perches, north SO degrees west, 86 perches, run very close to the corner of the mill; the seven trees did not include the elm; I did not see it. Thomas Hendrickson was at Jonathan Biddle’s, in 1806, and discovered a corner; there was a beech there; showed him a red oak, the corner of the Schott tract; this corner is 30 rods north of the county line. Where the mill now stands, there was a hard beach at an early day—water running between the beach and the creek.</p> <p>Leonard Dobbin.—After Alcorn got the 500 acre tract, saw them survey it; the creek is now nearly one-third wider than when I first became acquanted with it; where the mill now stands, was solid ground, but it is wasted away some years ago. There was a road below the bluff, it is now all washed away. The mill now stands where there was a road between the steep bluff and the beach; the sugar tree, the corner of No. 25, was near the bank of the creek. In 1817 or 1818, saw Mr Dunn, the surveyor; Mr Dunn and Mr O’Conner were disputing; Mr O’Conner said his patent called for crossing the creek; Dunn said he would run to the South Pole if he paid him for it. It was solid ground; could not go along at all when the creek was so high as not to be rode.</p> <p>Nicholas M’Gowan was along when Mr Alexander made the survey and carried the chain; found the tree down marked east, west and north; found the maple on the east bank of the Mahonny, blocked by Mr. Findley, counted 38 growths; run across the vacancy, 30 rods; run east 200 perches across the Schott tract. The foundation of the mill, if my recollection serves me, was set into the bank.</p> <p>The plaintiff contends that, notwithstanding the patent under which they derive their title, calls for the Big Beaver as the boundary, and his numbered corner is found on the ground as called for by the patent, and is 17 perches west of the beech on the bank of the creek, which is also called for by the patent, and found on the ground, agreeing with the draft, that they are entitled by the patent to cross the creek, and hold the land north of the creek to the line spoken of by two of the witnesses, Mr Findley and Mr Alexander.</p> <p>The general and settled principle of law is, that the lines and marks- found on the ground are the true lines, and control the courses and distances returned in the draft, and contained in the patent; and, where the survey does not call for a natural boundary or for the line of another tract, the courses and distances in the patent will govern. It is also contended that the principles of law that have been settled as to donation surveys, supports the point (contended for by the plaintiff. In the case of Smith v. Moore, 5 Rawle 248, it is decided, that the numbered corner found on the ground controls the boundaries in the general draft, in treating the patent; and in the case of Christy v. Grossman, which is not reported, it is decided, that the numbered corner, even if made by mistake, controls all natural and other boundaries called for by the patent, and located on the tract. The court entertains the opinion, that these principles are against the position contended for by the plaintiffs. Their numbered corner, so proved to be found on the ground south of the creek, is 17 perches west of the beech which is also found on the ground on the bank of the creek, as called for by the draft and patent. The plaintiff, therefore, cannot extend these lines down 20 or 30 perches north of their numbered corner, disregard the line running east from the numbered corner to the birch on the bank of the creek, called for by the drafts and found on the ground; and although, from the bank, their patent calls for the Mahoning as the boundary, following its meanders on the south bank of the stream by courses and distances, cross the creek, and hold the land north of the creek. The principles decided in the case of 4 Watis, 261, apply with great force to the present case, and is much stronger on the facts if believed by the jury than that case.</p> <p>It is contended, that if the plaintiffs cannot by their patent cross the Mahoning, and hold the land to the line spoken of by two of the witnesses, there is a vacancy between the two lots by the work on the ground. The patent for lot No. 1816, under which the defendants claim, is bounded by lot No. 2 and 25 on the south, and calls for crossing and recrossing the creek. The court entertains the opinion, that even if there were evidence to satisfy the jury that a line was found on the ground some perches north of the Mahoning, agreeing in age with the donation lines, the boundary of lot No. 1816 would be lines of No. 2 and 25, as called for by the patent and found on the ground, and would be south of the Big Beaver, (now called Mahoning,) and this opinion it is convinced is sustained by the general principles of law with regard to lines, as also by the decision in 4 Watts,. 261.</p> <p>We are requested, by the plaintiffs’ counsel, to instruct you that the defendants can only come to the centre of the stream. The principles of the common law as applied in England to navigable streams, have not been adopted in Pennsylvania with respect to our rivers that are navigable. Where the stream is not a navigable river, a case might exist in which the principles of the common law would govern. If, in the present case, both patents had called for the Mahoning as the boundary, the one following the meanders of the stream by courses .and distances on the north side, the other following the meanders on the south side by courses and distances, the court is of opinion, that the principle of the common law would govern, and that each would have a right to go to the centre of the stream.</p> <p>This case is entirely different from the one which I have stated. The patent under which the plaintiffs claim is bounded by the Mahoning on the north and follows the meanders of the stream by the courses and distances stated in the patent. '</p> <p>The patent under which the defendants claim, is bounded on the south by the line of plaintiffs’ patent, and calls for crossing and recrossing the creek. There is no principle or statute of law that prevents the officer of the land office from fixing the bank of a stream, not naturally a navigable river, as the boundary of a tract of land, and embracing the whole of the stream, and in fixing the boundary of another grant as bounded by the line on the bank of the creek, and each having title according to the respective grants and surveys. The court is of opinion, that the plaintiffs are not entitled to go to the centre of the creek—that from the birch on the bank of the creek, following the meanders of the creek, they have title to low water mark, and that the defendants, under the patent for lot No. 1816, cross the creek, and have title to low water mark.</p> <p>Is there any part of the mill out of low water mark, and within the bounds of the five acres? If there is, your verdict will be for the plaintiffs.</p> <p>If the mill is entirely in the bed of the stream, and no part of it on the bank or out of low water mark, your verdict will be for the defendants. -</p> <p>Errors assigned:</p> <p>1. Instructing the jury that plaintiff cannot cross the Mahoning, as that stream is called for as a boundary.</p> <p>2. Charging that even if there was a line and corners found on the ground north of the Mahoning, agreeing in age with the donation survey, yet as the southern boundary of 1816, is lots Nos. 2 and 25, the lines of those tracts form the boundary of 1816, and, therefore, defendaut could run past the line and corners, and cross the Mahoning.</p> <p>3. In deciding that plaintiffs’ patent would not enable them to hold to the centre of Mahoning creek, but merely to low water mark on the south bank of the creek, and that defendants’ patent would hold to low water mark on the south bank of the creek.</p> <p>4. In deciding that if the mill was entirely in the bed of the stream, and below low water mark, plaintiffs could not recover.</p>

Robert Maxwell and Thomas Morgan against Richard B. Barker. Scire facias sur mechanics’ lien. On the 6th of June 1S36, Thomas Morgan and Richard B. Barker entered into a written agreement, by which the former was to do certain mason-work for the latter át the price stipulated. After the agreement was executed, the plaintiffs in this suit, by an endorsement upon the said agreement, entered into partnership to do the work.

<p>An opinion expressed by the crew of a vessel, in consultation with the master on the soundness of a link in a chain-cable which they were paying out to prevent her from dragging her anchors, is admissible in proof of its adequacy to the ordinary exigencies of the navigation.</p> <p>Evidence that other vessels driven into port by the same storm, were staunch and strong as any employed in the trade, is competent to show its violence.</p> <p>Also, that the sails were insufficient, is inoperative where the loss is assumed to have been occasioned exclusively by the insufficiency of a cable.</p> <p>The expense of overland transportation, after the goods have been unconditionally received at an intermediate port, must be borne by the merchant, and not by the carrier.</p>

Lawrence Kunkle against Henry Iseman, executor of John Baughman, deceased. This was an action on the case to receive a distributive share of the estate of John Kunkle, deceased, in which the following facts were stated in the nature of a special verdict: John Kunkle died in the year 1813 intestate, leaving issue Sebastian, Peter, Lawrence, Michael and George; Catharine, Mada-. lina, and Barbara Kunkle.

<p>ERROR to the common pleas of Erie county.</p> <p>This suit was brought by West W. Gould against Asa Whittier and Daniel S. Balsh, lately doing business under the name of Whittier & Balsh. The writ was served upon Whittier alone, who pleaded non assumpsit and payment with leave, &c.</p> <p>In a deposition taken upon a commission to the state of New Hampshire, a witness testified: “I am acquainted with Dan S. Balsh and Asa Whittier, but do not know any such man as Daniel S. Balsh. I am acquainted with the handwriting of Whittier & Balsh, and was acquainted with it during their partnership; the signature to the note is in the handwriting of Dan S. Balsh.”</p> <p>The plaintiff then offered the note in evidence, as follows:</p> <p>“ 2S0 dollars. Canaan, October 7, 1834.—For value received of W. W. Gould, we promise to pay to his order two hundred and eighty dollars on demand, with interest annually.</p> <p>“ Whittier & Balsh.”</p> <p>The offer was objected to, first, because the proof was of the execution of a note by Dan S. Balsh, and the suit was against Daniel S. Balsh; secondly, that the witness did not testify that he had ever seen the defendants write.</p> <p>The court overruled the objections and sealed a bill of exceptions.'</p> <p>The note was given in evidence. The same witness testified that Whittier & Balsh had dissolved partnership in 1835, and by an agreement between them, Balsh was to pay all the debts; that the creditors generally knew of this arrangement; and that Balsh had since failed.</p> <p>Upon this testimony the defendant requested the court to charge. the jury that the delay by the plaintiff, knowing that arrangement, until Balsh’s insolvency, ought to bar his recovery in this suit against Whittier.</p> <p>But the court below directed the jury that the evidence did not amount to a defence. Verdict for plaintiff.</p>

Obed Fahnestock against John M. Hood. The court below thus stated the case, and charged the jury; This is an ejectment to recover the possession of a house and lot in Mercer. On the part of plaintiff, there is in evidence the record of a judgment in the district court of Dauphin county. 0. Fahnestock v. Jacob and James Henington, testatum fieri facias to May term 1S26, to sheriff of Mercer county.

James Gray against Adam Horbach. This was an action of assumpsit brought to recover the purchase-money of a tract of land sold by the plaintiff to the defendant and William Stewart, for the sum of 12,000 dollars—each to pay one-half. A deed with covenant of general warranty was executed and delivered. Stewart paid his half of the purchase-money, and the plaintiff claimed to recover from the defendant a balance of 2500 dollars of his half.

<p>ERROR to the district court of Allegheny county.</p> <p>James Craig against David Watt. Ejectment for the three-fourths part of a tract of land.</p> <p>Powell Aten died seised of the land, having made his will, by which he disposed of the same as follows:</p> <p>“ And as to such worldly estate wherewith it hath pleased God to bless me in this life, I give and dispose of the same in the following manner, to wit:—Imprimis, it is my will, and I do order that my just debts and funeral expenses be fully paid and satisfied; and as touching the rest, residue and remainder of my estate, real and personal, of what kind or nature soever the same may be, in the said county of Allegheny or elsewhere, I give, devise, and bequeath to my dearly beloved wife Mary, for and during her natural life, if so long she shall remain a widow, and immediately after her decease, to descend to my four children, to wit, Paul, Sally, Adrian and John, in equal shares alike, as tenants in common, and not as joint tenants; but in case my said wife shall marry, it is my will, and I do order that her husband shall have no other privilege than his living on the place for and during the natural life of my said wife as aforesaid, and no longer. It is also my will, and I do order that the land shall not be sold till my youngest son John shall arrive at the full age of twenty-one years, and in case any of my said children should die before that time, then, in that case, it shall be divided between the survivors, or survivor of them, or the lioir of such survivor. It is also my will, and I do order that in case it should happen that there should not be sufficient for the support and schooling of my said children, that my executors may rent the land, or so much thereof as will be sufficient to answer the purposes aforesaid.”</p> <p>The shares of the said Powell, Adrian and Sarah, in the said land, had become vested before the institution of this suit, in the plaintiff, James Craig.</p> <p>Admitted that the widow of testator was married about fourteen years ago, to John Creighton, and that the youngest son of testator was of age in 1837. John Creighton and wife left the farm about eleven years ago, and lived in the neighbourhood until about five years ago, when they removed to Ohio, where they have since resided. Since their removal from the farm it has been leased by them, and is now in possession of David Watt, who is tenant to said Creighton and wife.</p> <p>Grier, president, instructed the jury that the widow of the testator took an estate for life, qualified only as to the power of her husband over it, and directed them to render a verdict for the defendant. Verdict and judgment accordingly.</p>

John Jones against John Sheperd. This was an action of covenant.

Samuel Alexander, Esq., against Acheson M’Murry. Ejectment for a tract of land.

The Burgess and Town Council of the Borough of Erie against John Vincent and Martin Strong. This was an action of debt to recover the price of .a lot sold by the plaintiffs to the defendants. Plea payment, with leave, &c. It appeared in evidence that, by virtue of an act of assembly, the borough of Erie was authorised to lay out certain water lots in the basin, at the town of Erie.

Andrew Oliver and Thomas Oliver against Frederick W. Miller. Scire facias sur mechanics’ lien. The work done by the plaintiff’s was the raising of a frame building, which had been previously occupied by a family, and building a. basement story of stone under it. The objection to the plaintiffs’ recovery was, that the work done was neither an erection nor construction, such as was contemplated by the act of assembly.

The Commonwealth for the use of the commissioners of Indiana county against Jane Patterson, Samuel Hill, Archibald Matthews, and Robert Nixon.

ERROR, to the quarter sessions of Westmoreland county,- This was an indictment against Thomas D. Abbott for betting on an election, contrary to the act of assembly of the 24th of March 1817. On the first of June 1839, there was judgment on demurrer against the defendant. On the 2d of July 1839, the law under which the defendant was prosecuted, was repealed. On the 19th of August 1839, the defendant was sentenced; and the question was, whether the sentence was legal.

THIS writ of error to the common pleas of Washington county brought up the record of an action of ejectment, in which William Wickherham, trustee of Mary Chess, was plaintiff, and Cyrus Huston defendant. The case was thus: Adam Wickerham died intestate and seised, inter alia, of the land in dispute, leaving issue, Mary the wife of A. B. Chess, William Wickerham the plaintiff, and Sarah intermarried with William Bausman.

Mary Grayson against John Bannon and Jeremiah Bannon. This was an action of ejectment for two hundred acres of land; in which each party claimed under a treasurer’s sale for taxes. The sale to the plaintiff was for the taxes of 1815,1816,1817, and 1818, and the deed was dated the 30th of August 1S20.

The Erie Bank against John Brawley. This was a scire facias upon a recognizance entered into by the defendant, as bail of Wm. L. Hall and others, for a stay of execution upon a judgment, The plaintiff entered a rule of reference; the arbitrators were chosen; met, and made a report in favour of the plaintiff for 5295 dollars 37 cents.

Alfred M. Tilford having failed, made a voluntary assignment for the benefit of his creditors. The account of his assignees was referred to auditors,, who made the following report of the facts and the law. “ The report of Tho.

• ERROR to the quartet sessions of Venango county. This was an indictment against Martha Douglass, under the act of the 22d of April 1794, which contained three counts, upon the first two of which the prisoner was acquitted, and upon the third she was* convicted.

Alexander Cooper and others, heirs at law of Robert Cooper, against Bela B. Smith. Ejectment for one hundred acres of land. The plaintiff gave in evidence a deed for the land, dated the 12th of April 1770, from C. Winemiller to George Woods, from Woods to Pendegrass, dated the 17th of June 1772; from Pendegrass to Simrall, dated the 4th of October 1S03, and agreement between.

Giles Sandford against George Decamp. Ejectment for 250 acres of land. The plaintiff exhibited a regular assessment and sale of the land by the treasurer of the county to him for taxes, for the years 1829, 1830 and 1831, and a deed dated the 5th of July 1S32.

Charles M. Bollman against Doctor A. Walter. This was an action of assumpsit for boarding and lodging the defendant. The defendant pleaded a set-off, and alleged that while he boarded with the plaintiff, he rendered services, as a physician, by attending the plaintiff’s family.

<p>By the English law merchant, the acceptor of a foreign bill of exchange is not liable for re-exchange, or any charge but interest, according to the rate established at the place of payment; and the statute of Pennsylvania, which gives liquidated damages as a substitute, has regard only to drawers and endorsers.</p>

The executors of D. L. Murray against Robert Guilford. This was an action of ejectment for a tract of land. The plaintiffs gave in evidence a patent to their testator for the land. The defendant claimed, under a treasurer’s deed, in pursuance of a sale for the payment of taxes. He gave in evidence an assessment made in the fall of 1818, for the tax of 1S19; county tax 91 cents, and road tax 2 dollars 35 cents. It was sold for these taxes in June, 1822.

John Leasure against Mahoning and Montgomery townships, in Indiana county. The plaintiff having been the supervisor of the said township for the years 1819 and 1821, his accounts were settled by the auditors each year, and a balance was found to be due the plaintiff, for which this suit was brought, by authority of a special act of assembly, passed the 16th of June, 1836.