Volume 8 — Watts & Sergeant's Pennsylvania Reports

<p>ERROR to the District Court of Mercer county.</p> <p>Thomas Nesmith having obtained a judgment against Jacob Drum, Henry Drum and James Collins, issued & fieri facias with a clause of attachment and scire facias against John Hawkins as garnishee, which was issued and served 14th June 1842. Upon interrogatories filed by the plaintiff, the garnishee answered that he owed a debt to Jacob Drum, Henry Drum and James Collins, of $297.27, for which they had obtained a judgment against him. Upon which the plaintiff asked for judgment against the garnishee. Whereupon William Wheelen by his attorney appeared in court, and claimed the fund upon the following order:</p> <p>“ H. H. Budd, Esq., please pay over to William Wheelen or order the amount of the note on John Hawkins when collected, as the note is to be applied to the payment on a note in the Warren Bank; or if said Drums and Collins should pay off said note, this order to be lifted. By so doing, you will oblige</p> <p>Jacob Drum,</p> <p>Henry Drum,</p> <p>James Collins.</p> <p>Feb. 14, 1842.”</p> <p>The following is endorsed on the back of the above writing:</p> <p>“Accept the within order, and agree to pay over the same when collected, reserving my fees and per centage.</p> <p>H. H. Budd.</p> <p>Feb. 14, 1842.”</p> <p>The court below (Thompson, President) rendered a judgment for the defendant.</p>

John English and others against Owen Connellogue. Ejectment for part of a lot of ground in Pittsburgh. The facts are fully stated in the opinion of the court.

This action was brought by E. Jones & Co., endorsers of a promissory note drawn by F. R. Smith, on the 2d of July 1842, for $ 143, payable to the order of A. Kirk Lewis, the defendant, at six months, and endorsed by him to the plaintiffs, who deposited it in bank for collection.

<p>A terre-tenant is incompetent to testify on the trial of an issue which may affect the estate which he occupies.</p>

John Spires against P. S. V. Hamot. This was an action of debt upon a bond dated the 26th February 1836, in the penalty of $28,000, conditioned for the payment of $14,500 “ on or before the 26th February 1846, with the lawful interest, the first interest payment becoming due on the 26th Febxuxary next.” In 1 his suit the plaintiff claimed to recover the interest which became due on the 26th February 1841, and the 26th February 1842.

John L. Frazier against The Erie Bank. This was an action on the case, the facts of which are fully stated in the opinion of the Court.

The will and the name Robert McKean signed to it were written by Benjamin Byerly, and the alleged testator made his mark at the name. Upon a hearing of the case before the Register’s Court, Adam Ludwick and Benjamin Miller, who were the subscribing witnesses to the paper, testified as follows: Adam Ludwick sworn.' — This is my handwriting (the will was here exhibited to the witness). I did not see Mr McKean sign this will.

Manate Graham against William Hay. This was an action on the case in which the plaintiff declared in two counts: first, for seducing the plaintiff and getting her with child; second, for a breach of promise of marriage: upon which the jury found a verdict for the plaintiff for $950 damages. The court below was of opinion that >the first count in the declaration was bad, and rendered a judgment on the second count.

This was an action of assumpsit by John Knox, James Boggs and John Knox, partners trading in the name of Knox, Boggs & Co., for the use of William Wilson and David Knox, their assignees, against Abraham Horbach. Depositions were taken on behalf of the plaintiff to sustain his cause of action, by which it appeared that James A. Knox, instead of John Knox, was the member of the firm.

William Chamberlain against Alexander M’Clurg. Scire facias sur Mortgages. Two suits tried together: the first upon a mortgage for $15,000, the other for $5000.

• Elizabeth Elliott and others, children of John Elliott deceased,' against William Pearsoll and Isabella M’Cormick. This was an action of ejectment to recover a tract of 286 acres of land.

Robert Armstrong against William Bentz. John Wilkinson being the owner of a lot 50 feet in front on Quarry street, in Pittsburgh, agreed that his two partners in the plastering business, Bentz and Crawford, should be equally interested with him, and, he conveyed to them accordingly; after which they divided the same into two lots of fifteen feet each, one of sixteen feet, and an alley of four feet between them for the accommodation of all, and they built three houses upon…

This was an action of debt founded upon an insolvent bond, by Henry Schricon against Hugh Bean and George D. Foreman, brought to January term 1842, and the writ duly served upon the defendants. The defendants did not appear. On the 27th August 1842, the plaintiff’s attorney filed a declaration and signed judgment for want of appearance, which the court below refused to set aside.

Samuel Russell against Whitesides and others, owners of the steamboat “ Norfolk.” This was an action on the case in which the plaintiff declared on the contract of the defendants to deliver for the plaintiff at Pittsburgh 7918 pounds of rice, and that they did not deliver the same; but the declaration did not, in any part of it, state the value of the rice.

In April 1844, William Moore obtained a judgment against James Chadwick on a scire facias to have execution of premises mortgaged in July 1838, and sued out a levari facias to July term 1844, on which the sheriff sold for less than two-thirds of the appraised value.

Abiah Butler against John Morgan and John N. Johnston. This was an action of replevin for certain property described in the writ. The defendant Johnston made cognizance under the defendant Morgan, who avowed for rent in arrear; and the plaintiff replied, no rent in arrear.

This was an action of ejectment by William Williams against William Shipley and Adam Landman for a tract of land in Henry Clay township, containing 61 acres. The whole case and points put to the court are so fully stated in the opinion of this court that no other statement is deemed necessary.

Thomas Cox against Thomas Livingston’s Administrators. This was an action on the case against the defendant’s intestate, who was an attorney at law, for negligence in the prosecution of a claim put into his hands for collection, whereby it was alleged to have been lost. The cause had been once tried before, when Martin Dubbs (who was now absent, no one knew where) was examined as a witness.

This was an action of debt, by Wm. F. Keever & Co., against A. P. Moddewell, which originated before a justice of the peace and came into the Common Pleas by appeal. After the plaintiff had established his cause of action, the defendant proved that George B. Hamilton and James Humes were members of the firm of Wm.

<p>ERROR to the Common Pleas of Washington county.</p> <p>Thomas Hutchinson against Catharine M’Coy and Thomas M’Coy. The plaintiff claimed under a patent from the State of Virginia to Richard Yates, from whom the title passed regularly to the plaintiff. The defendants claimed under a patent from the State of Pennsylvania to Thomas Shields, who conveyed to George M’Donald, from whom the title passed regularly to the defendants.</p> <p>D. M’Donald, sworn. I am acquainted with the land in dispute. Was not present when there was any agreement, but was present when Cedar Point was divided between A. M’Coy and Wm. and Geo. M’Donald. When we came to the disputed land, Mr Leet (artist) waited until Hutchinson came. Hutchinson and Geo. M’Donald related over the agreement that Shields agreed to let Hutchinson fill his Pennsylvania patent, if he would give him no more trouble about the Virginia entry or survey, as Shields said it was not good, and Mr Leet concurred. It was agreed between the parties then that the line should be run according to the Pennsylvania patent. It was so done and I blazed the line. They said they were glad it had been compromised; this was in May 1801. Mr Hutchinson stated that R. Yeates advised him to get a Pennsylvania patent. They certainly agreed at the time as above stated, as to the line, and still expressed their gratification at the agreement as made.</p> <p>On this subject the court below thus instructed'the jury:—</p> <p>“ It is alleged by the defendants that James Hutchinson and Thomas Shields, who then owned the lands now held by the defendants, agreed that the line of Hutchinson’s Pennsylvania survey should be the line between them. This is denied, but if true, would not divest the plaintiff’s title, and much less, if it was induced by the representations of Shields that the Virginia title was not worth a straw. Title perfected by patent cannot be devested and conveyed by parol. If, therefore, there was such agreement as stated by John M’Donald, it would not devest the title of the plaintiff.”</p>

This was an action of ejectment by Robert A. Defraunce and others against William Brooks and Charles Woods. The plaintiffs, who claimed as the heirs of James Defraunce deceased, offered in evidence the following article of agreement, the execution whereof was duly proved: May 27th, 1823.

<p>If one who is exempt from arrest by reason of his having taken the benefit of the Insolvent Law suffers himself to be sued, judgment to be entered, and execution to issue against him, upon which he is arrested and gives a bond to take the benefit of the Insolvent Law, and the condition of the bond is broken by his failure to make an application for that purpose, he cannot, in an action brought on that bond, avail himself of the fact that his arrest was illegal.</p> <p>If one illegally arrested give bond with surety, conditioned for his appearance to take the benefit of the Insolvent Law, instead of suing out a habeas corpus, the surety will be bound by his obligation.</p>

' This was an action of trespass de bonis asportatis by Joseph Over and George Packer against Henry Blackstone, Wm. Freeman, and James Freeman, in which the right of property to a team of horses was the subject in dispute.

The question which arose in this case was whether that part of Pitt township, Allegheny county, which was created into a city district by the Act of the 16th June 1836, was subject to the general road laws under the jurisdiction of the Court of Quarter Sessions. The court below was of opinion that they had no jurisdiction of the subject, and set aside the report of viewers locating a road.

William Irwin against Peter Shoemaker and others. This was an action of debt upon three bonds. The plaintiff sold to the defendants a piece of land, and took from them the three bonds upon which this suit is brought, conditioned for the payment of $325 each, on the 1st August 1838-39 and ’40, for the balance of the purchase money, and at the same time took a mortgage upon the land sold.

ERROR- to the Court of Quarter Sessions of Allegheny county. This was an indictment found against James Heron Foster for having composed and published a libel upon the Hon. Robert C. Grier, President Judge of the District Court of Allegheny county.

This was an action on the case by Helena Henry and others, heirs-at-law of David Henry, deceased, by their guardian, Robert H. Patterson, against the President and Managers of the Pittsburgh and Allegheny Bridge Company, in which the plaintiffs declared for an injury done to the value of their freehold by reason of the filling up of a certain street in the city of Pittsburgh, which was occasioned by the construction of a bridge by the defendants across the Allegheny River:…

Vantries and Ross against Richey, Ewalt & Co. Debt on book account.

This was an action of debt brought by Torbet and M’Fadden against Jonathan Lilley and John C. Humes, upon a bond dated 23d May 1842, with condition reciting that “ whereas the said Jonathan Lilley has been arrested in execution at the suit of the said Torbet and M’Fadden for the debt of $91.29, and 72J cents costs, Now the condition of this bond is such, that if the said Jonathan Lilley shall appear at the next term of the Court of Common Pleas of the said county, and then…

SAMUEL TATE against George Reynolds and Thomas Ferguson. This was an action of ejectment brought to November Term 1842.

<p>ERROR to the Common Pleas of Washington county.</p> <p>This was an action of assumpsit by Oliver Wallace against the Directors of the Poor of Washington county, to recover the price of coffins furnished for the burial of poor and destitute persons, who were carried off by an epidemic which prevailed in Taylorstown some years since. In one of the cases an order of relief was made whilst the pauper lay on his death-bed, and a few days before his death, but was not presented to the directors until after his death and burial. In the other cases no order was previously made; but subsequently to the death of the paupers, a certificate in the nature of an order of relief was granted by two justices, stating the utter destitution of the deceased; that they had nothing to bury them, and approving the expenditures by the plaintiff.</p> <p>Ewing (President), instructed the jury that although there was no express provision for such cases contained in the Act of Assembly, yet the spirit of the law, when taken as a system, was in accordance with that principle of humanity which required the directors to make provision for these cases of emergency which so frequently happened; and that in this case the order of the justices was a legal authority for the directors to pay; they were therefore bound to do it, and the plaintiff was entitled to recover.</p>

<p>In an action founded upon a covenant of warranty of title in a deed of conveyance, it is competent for the defendant to prove that the deed, though absolute on its face, was executed and delivered as collateral security for the payment of a debt to a third person, and that the plaintiff had no real interest in the title. The fact of his having obtained the title without the payment of the purchase money is sufficient to put the plaintiff upon inquiry as to the circumstances under which the deed was made to him.</p>

<p>The amount of an award of arbitrators appealed from by the defendant, is a lien upon his land, but not the costs which subsequently accrue upon the trial of the cause.</p>

<p>Upon the sale by a husband and wife of the wife’s lands, and a subsequent separation, an agreement between them that one half of the unpaid purchase money shall be paid to the attorney of the wife for her sole use and maintenance, upon her giving security to indemnify the husband against any debts which she might contract, is binding between the parties; and upon the money having been paid by the purchaser to the attorney of the wife, the husband cannot maintain assumpsit for money had and received against him, although the wife had not given the indemnity against her debts, which the agreement required: he could only sue and declare specially upon the agreement, setting out a breach, and the damages then recoverable would be measured by the apiount of debts of the wife which the husband had been obliged to pay.</p>

John F. Beaver, Esquire, against Robert Robb. This was an amicable action in which the parties agreed to a special verdict, the substance of which may be thus stated: William Pentland and Mary his wife were seised in right of the wife of certain lots in the city of Pittsburgh, which they disposed of to various purchasers by deeds of perpetual lease, as they are usually styled, reserving certain rents to the grantors jointly.

<p>ERROR to the District Court of Allegheny county.</p> <p>This was an action of ejectment by John K. Calhoun and Mary his wife against Robert Hays, David Hays, and William Lynch, for the undivided eighth part of a tract of land, in which both parties claimed title under Robert Hays, their common ancestor.</p> <p>In answer to the claim of the plaintiffs, the defendants alleged that by a family arrangement made between all the heirs of Robert Hays, deceased, in 1826, for the purpose of dividing their property and making a final settlement, the plaintiffs agreed to accept their share in money: that they accepted the defendants’ note for their interest, released their claim to the estate and had been fully paid, and had therefore no right to recover in this suit. To this the plaintiffs responded that they were not legally estopped by the writings signed on that occasion, and that they did not assent to it or receive the money.</p> <p>It appeared that one of the sons had petitioned the Orphans’ Court for a writ of partition and valuation of the estate, and that a jury had been summoned, who met and could not agree upon a valuation of the land: whereupon the heirs, being of full age, agreed themselves in writing that the land should be assumed as valued by the Orphans’ Court at $10.50 an acre. The proceeding in the Orphans’ Court was not pursued further, but the heirs agreed to have a meeting and settlement of the whole estate, as well the lands which were the subject of the proceeding in the Orphans’ Court, as lands in other counties, some out of the State and the personal property of their father. It appeared that a statement was drawn up by a justice of the peace in the shape of an administration account, charging the administrators with all the land at the value agreed upon, as also the account of the personal estate. One of the sons who had been advanced by his father in his lifetime, brought his tract into hotchpot; each of the heirs was charged with such of the personalty as they had severally received, and the share of each valued at $769. It appeared also that David and Robert agreed to take the tract in dispute; that the other brothers took the' property in Ohio and Kittaning; that notes were given by those who received land to those who preferred taking their shares in money; that releases were signed by all the heirs to those that received the lands, except by John K. Calhoun, by whom it was alleged by the defendants a release had also been executed, but that it was lost: this was denied by the plaintiffs, and was referred as a fact to be determined by the jury.</p> <p>On the trial of the cause several questions arose as to the admission of evidence, in which exceptions were taken to the opinion of the court, and were the subjects of the assignment of error. Points were also put by the plaintiffs upon which the court were requested to instruct the jury; all of which sufficiently appear in the opinion of the court. A verdict was rendered for the defendants.</p>

David Prosser against Frederick Haley. Scire facias sur mechanics’ lien. The plaintiff’s claim was filed under the mechanics’ lien law for the carpenter-work done by him for the defendant in building a house, to the amount of $226.45.

This was an action of ejectment by the heirs of Thomas Miles, deceased, against William Miles, in which a statement of the case is made by his Honour who delivered the opinion of the court.

Allen Kramer against A. N. M’Dowell. This was an action to recover the amount of a bill of exchange drawn at Pittsburgh by William Seely on Benjamin Naglee of Philadelphia, for $250, payable to the order of the defendant, A. N. M’Dowell, forty days after date, who endorsed the same to the plaintiff.

ERROR, to the Common Pleas of Westmoreland county. Hugh Y. Brady against James Quin. This was an action of ejectment. The points made in the court below and the opinion of his Honour Judge White, who tried the cause, are fully stated in the opinion of this court.

THIS was an appeal by Paul Jones, one of the guardians of the three minor children of John H. Levering, deceased. In March 1826 Paul Jones and John Levering were appointed guardians. Paul Jones was cited in the Orphans’ Court of Philadelphia county to settle his account.

This was an action on the case brought by Abraham Shelly, defendant in error, against Henry Shelly, plaintiff in error, to recover the… Held: partition and valuation made of the aforesaid real estate by a jury of twelve men, according to law; and whereupon Jacob Yeakle, the eldest son of the said deceased, is by law entitled to the preference before the rest of the heirs, of electing and taking one part of the said divided estate; and whereas I, George Yeakle, brother to…

This was an action of debt to recover a penalty, brought by Frederick A. Aechternacht against John G. Watmough, sheriff.

<p>THIS was an appeal by Margaret Murphy and others, heirs of Patrick Murphy, deceased, from a decree of the Orphans’ Court of the county of Philadelphia, ordering the sale of the real estate of the said deceased for the payment of debts alleged to bo owing by him at the time of his death. The case was argued by</p> <p>The facts are fully stated in the opinion of the court.</p>

<p>An erased deed is not such a deed as a vendor ought to furnish to a vendee in compliance with his engagement to make a title.</p> <p>' In an action of ejectment brought to enforce the payment of the purchase money, where the plaintiff retains the legal title, it is not requisite that the plaintiff should have tendered a deed before suit brought, where he claims a conditional verdict; it is sufficient if done on the trial.</p> <p>If the deed filed be erased, a court of error will allow the plaintiff to execute a new one in its stead.</p> <p>A party may cross-examine as to the res gestee given in evidence, though it be new matter.</p> <p>The subscribing witnesses to an instrument are required to enable the opposite party to inquire into the circumstances attending the sealing and delivery.</p>

<p>This case, which was a writ of error to the Common Pleas of Schuylkill county, was argued here by</p>

<p>ERROR to the District Court of the City and County of Philadelphia, to set aside an execution issued on a judgment in that court, in which Nathan Davidson was plaintiff and Robert M. Huston defendant.</p> <p>The plaintiff, Davidson, brought his action of covenant against the defendant, Huston, and obtained judgment; and after execution had issued, a case was stated for the opinion of the court below, subject to a writ of error, as follows: —</p> <p>N. Davidson and Dr R. M. Huston, on the 14th March 1835, executed the annexed agreement (prout agreement). Huston, soon after his purchase, sold the lot to E. B. Guarrigues, who paid the ground-rent up to October 1841. No improvements were erected on the lot, nor were any ground-rent deeds to third persons made by Davidson under the provisions of this agreement. Upon the failure of Guarrigues to pay the rent after October 1st, 1841, Davidson called upon Huston for it, and upon his pleading inability, commenced a suit in covenant against him (D. Ct. Sept. 1842 — 1458), and on the 26th November 1842, judgment was obtained against Huston for want of an affidavit of defence, and damages were subsequently assessed at $413.09, for the arrears and interest due at the commencement of the action. Under this judgment the lot was sold by the sheriff [subject to the ground-rent], and produced $70, Davidson being the purchaser to whom the deed was made. Huston afterwards refused to take the lot subject to the ground-rent, and pay the amount it brought at the sale. Upon obtaining the title, it was found that the lot was subject to $43.16 taxes, for the year 1842, and to a lien for paving done by the district of Spring Garden, amounting to $515.68, with interest, of which $28.10 were , paid from the proceeds of sheriff’s sale, and the balance, $487.58, afterwards paid by Davidson. A fieri facias has been issued on the judgment against Huston to Sept. Term, 1843, and the question is, whether the plaintiff is entitled to collect the balance of his judgment under this writ.</p> <p>The following are the articles of agreement above referred to: —</p> <p>“ Articles of agreement made and concluded upon this 14th day of March, 1835, between Nathan Davidson, of the district of Spring Garden, in the county of Philadelphia, of the one part, and Robert M. Huston, M. D., of the city of Philadelphia, of the other part, witnesseth, that the said Nathan Davidson agrees to let on ground-rent for ever, to the said R. M. Huston, a certain lot or piece of ground situate in the district of Spring Garden aforesaid, beginning at the south-east corner of Broad and Coates streets, and extending, &c., for and in consideration of the ground-rent and taxes, and on the terms and conditions hereinafter mentioned, that is to say: The said R. M. Huston agrees to pay to the said Nathan Davidson, his heirs or assigns, the yearly rent or sum of $405, in equal half yearly payments, on the first days of April and October in each and every year for ever, or until the principal sum, computed at the rate of sixteen years and two-thirds purchase, is paid, without any deduction for taxes on the said premises; the first half-yearly payment to be made on the first day of April, 1836. And it is further agreed between the said parties, that for such part or parts of the said lot as may be be let out by the said R. M. Huston, whenever the same shall be improved by brick buildings, or the ground-rents guaranteed to the satisfaction of said N. Davidson (said ground-rents not to be less than the rateable proportion of the ground-rent on the whole lot), he the said Nathan Davidson will give a deed or deeds therefor, at the request, in writing, of the said R. M. Huston, said ground-rent deed or deeds to contain the usual covenant and claims, and a provision for the extinguishment of the ground-rents thereby reserved, at any time within ten years from the date of said deeds respectively. And whenever the said ground-rents on the lots so let out and improved or guaranteed as aforesaid shall amount to the aforesaid yearly rent or sum of $405, free of all taxes or assessment whatsoever, then and in such case, if any part of the said large lot remains to the said R. M. Huston, a deed in fee-simple to the said R. M. Huston, his heirs and assigns, shall be made for the same by the said Nathan Davidson: and it is further understood and agreed that the deeds for the above lots shall be made and executed to R. M. Huston, or to such person or persons as he may in writing direct, as aforesaid, on or before the 1st day of January 1838. And the said R. M. Huston, for himself, his' heirs, executors and administrators, doth hereby covenant and agree to and with the said Nathan Davidson, his heirs and assigns, by these presents, that he will well and truly pay the rent aforesaid, or so much thereof as may not be secured under ground-rent deeds, as aforesaid, unto the said N. Davidson, his heirs and assigns, without any deduction, defalcation or abatement for any taxes, charges or assessment whatsoever. And for the just and true performance and observance of their respective covenants and agreements aforesaid, the said parties hereto do mutually bind themselves, their respective heirs, executors and administrators, each unto the other firmly by these presents. In witness whereof,” &c.</p> <p>The court below decided in favour of the plaintiff, and this was now assigned for error.</p>

<p>ERROR to the District Court for the city and county of Philadelphia.</p> <p>This was an action of covenant brought by Kuhn and another against John Bosler and three others for arrears of ground-rent due October 1st, 1843, on a ground-rent deed from the plaintiffs to the defendants, executed 25th March 1836, conveying a large lot of land in the county of Philadelphia in fee, subject to a ground-rent with the usual conditions and covenants.</p> <p>Bosler, one of the defendants, filed the following affidavit of defence.</p> <p>John Bosler, one of the defendants, being affirmed, saith that his defence to the whole of plaintiff’s claim is this; that on the 1st day of April 1842 he filed his petition in the District Court of the United States for this district, praying for the benefit of the bankrupt laws; that on the 29th day of April 1842 he was by the court decreed a bankrupt, and that on proper proceedings he subsequently, to wit, on the 30th day of August 1842, was by said court decreed a final discharge and certificate according to the Act of Congress in such case made and provided; which certificate he has ready and offers to exhibit. And he further saith that the ground-rent deed on which this suit was brought was executed by him before he filed his petition above-mentioned.</p> <p>The court below gave judgment for the plaintiffs for want of a sufficient affidavit of defence.</p> <p>Errors assigned:</p> <p>1. The court below erred in giving judgment by default against defendant, Bosler, who had filed a sufficient affidavit of defence.</p> <p>2. Because said court thereby decided that said Bosler’s discharge and certificate in bankruptcy did not prevent them from entering judgment against him personally.</p> <p>3. Because said court thereby decided that notwithstanding said discharge and certificate, said Bosler was personally liable on said ground-rent deed made and executed before he commenced any proceedings in bankruptcy.</p>

<p>On the 21st November 1835, A. purchased at auction the land of B. Both signed conditions of sale stipulating that one-third of the purchase money was to he paid on the 1st April 1836, whén title would be executed and possession given. On the 8th April 1836, C. obtained a judgment against A. On the next day a deed was executed in pursuance of the conditions of sale, and the first instalment was paid. On the 10th April 1837, D. obtained a judgment against A. The land was afterwards sold by the sheriff as the property of A. Held, that C.’s judgment was entitled to the proceeds in preference to that of D.</p>

<p>ERROR, to the District Court for the city and county of Philadelphia.</p> <p>This was an action of trespass vi et armis, brought by. James J. G. Bias and others against Samuel F. Reed and others for pulling down “ the Coloured Temperance Hall of Moyamensing.” The defendants pleaded not guilty.</p> <p>On the trial, after the plaintiffs had proved the destruction of the building by the defendants, the defendants offered to prove, in mitigation of damages, as follows:</p> <p>1. That the taking down of the Temperance Hall at the time mentioned, was the act of the municipal corporation of Moyamensing township, by their agents duly authorized.</p> <p>2. That the act was done deliberately by the said municipal corporation at a period of great public excitement and disorder, with a view to save the neighbourhood from threatened violence.</p> <p>3. That this said municipal corporation had by law the power to abate and remove nuisances, and that a grand jury, after instructions by a competent court, presented the said building or Temperance Hall as a public nuisance, and recommended its abatement.</p> <p>4. And that the said building was peaceably taken down and its materials preserved in conformity with the direction of the said municipal corporation.</p> <p>The court rejected the evidence and sealed an exception. This rejection was assigned for error.</p>

<p>Recitals of title in a deed more than 30 years old, where possession accompanied the deed, are primá facie evidence against persons claiming by title under the grantor previous to such deed.</p>

Case brought on a promissory note by Francis Tiernan against Henry Roland and Thomas Blackstone, executors and trustees of Catharine Yohe deceased.

<p>HABEAS CORPUS to bring up the body of Wesley Flavell, who was in prison under sentence of the Court of Oyer and Terminer of the city and county of Philadelphia on conviction of murder in the second degree. The prisoner claimed his discharge under the following pardon:</p> <p> Pennsylvania, ss. </p> <p>In the name and by the authority of the Commonwealth of Pennsylvania—</p> <p>David R. Porter.</p> <p>David R. Porter, Governor of the ‘said Commonwealth—</p> <p> </p> <p>To all to whom these presents shall come, sends greeting:—</p> <p>Whereas at a Court of Oyer and Terminer, held in and for the city and county of Philadelphia at September Sessions 1844, a certain Wesley Flavell was indicted and convicted of murder in the second- degree, and was thereupon on the 28th day of December 1844, sentenced by the said court to pay a fine of $ 1 to the Commonwealth, undergo an imprisonment in separate or solitary confinement at labour in the State Penitentiary for the Eastern District of Pennsylvania for the term of 12 years, and be fed, clothed, and in all respects treated as the law directs; that he pay the costs of prosecution, stand committed, &c.</p> <p>And whereas it is made manifest to me that the said Wesley Flavell was deprived of his reason at the time, and wholly unconscious of having committed the act, and his friends offering to take him home to Ireland immediately, there to remain until his reason shall have been fully restored.</p> <p>I do therefore in consideration of the premises, hereby pardon the said Wesley Flavell, on the express condition that he be taken direct from the penitentiary on board the vessel which is to convey him out of the country, there to remain until the vessel put to sea, and he is hereby fully pardoned accordingly.</p> <p>Given under my hand and the great seal of the State at Harrisburgh, this 20th day of January 1845, and of the Commonwealth the 69th.</p> <p>By the Governor, Thomas L. Wilson,</p> <p> Deputy Secretary of the Commonwealth. </p>

<p>If one purchase land of which the title fails, yet if a third person advance money to the vendor in part payment, on the representation of the purchaser that he would be safe in so doing, and the purchaser gives a bond to such third person for the amount, he cannot, in a suit on the bond, bar a recovery on the ground of defect of title.</p> <p>Where one owns both land and the money due upon it, there is no lien on it for the money.</p> <p>Representations by counsel in the presence of his client, on the faith of which one has advanced money, are the representations of the client.</p>

<p>In foreign attachment against a corporation as defendant, the civil death of the corporation before judgment against it, produced by the decree of forfeiture of its charter by a judicial tribunal, dissolves the attachment.</p> <p>The garnishee may take advantage of this by pleading it, notwithstanding judgment had been entered against the defendant for default of appearance.</p> <p>Such decree of a court forfeiting a charter, made before judgment signed in the foreign attachment, appealed from by a devolutive appeal, which had not the effect by the law of the State to suspend proceedings, afterwards reversed by the appellate tribunal because the reasons given by the court below were erroneous, but makinn- a like decree, does not restore the corporation as to intermediate acts done in pursuance of the prior forfeiture, so as to render the judgment by default in foreign attachment valid.</p>

<p>' Mortgagee assigns his mortgage and accompanying bond and warrant to two trustees in trust for the use of his daughter and her children. Payment by the debtor to one of these trustees discharges the debt.</p>

APPEAL by Edwin Yerkes from the decision of the Common Pleas of Bucks county. This was a case stated as follows: James Burson, to the use of Evelina Burson, v. James Gordon, Giles Gordon, and Stephen Gordon. Vend. ex. to April Term 1843. Rule to show cause why Edwin Yerkes shall not take out of the sheriff’s hands the amount of his judgment.

<p>The Act of 3d April 1830, does not apply to the case of a landlord and tenant, where the tenant refuses to pay rent under a claim of right to the reversion, which, bping a denial of the landlord’s title, gives him an immediate right of entry and action at the common law.</p>

<p>ERROR to the Common Pleas of Bucks county.</p> <p>This was an action of trover for two canal boats, No. 228 and No. 145, Mauch Chunk register, which the defendants, William Field, Alexander C. Brittain, Samuel B. Brittain, and Cornelius Sellers, had seized as the property of John Callahan, by virtue of a writ of foreign attachment against Callahan in favour of A. S. Brittain & Co., and had sold in December 1836, under an order of sale granted by the court, notwithstanding notice given by the plaintiff'.</p> <p>These boats were built by the Lehigh Coal and Navigation Company, and delivered to Callahan in pursuance of a printed contract, such as was usual with them in the year 1833, and which was afterwards renewed. Callahan retained the possession of the boats in 1833 and 1834. On the boat No. 145 he had a credit on the books of the company on freight carried, for $156.10, and on No. 228 a credit in 1834 of $142.80. In June 1836 the superintendent, Abbott, declared the contracts abandoned by Callahan. The register was produced, and showed the boats entered and registered, when contracted for, with whom contracted, and price and sums retained.</p> <p>The form of the printed contract signed by Callahan and the superintendent was as follows, viz.:</p> <p>This agreement, made the 13th day of the ninth month 1833, between John Callahan, contractor on the one part, and Abiel Abbott, superintendent on behalf of the Lehigh Coal and Navigation Company on the other part, witnesseth:</p> <p>1. That the said contractor hereby agrees to purchase from the said company, on the terms mentioned in the third regulation of the said company’s printed regulations for boating coal, hereunto annexed, one scow boat, number 228, Mauch Chunk Register.</p> <p>2. That the said contractor will begin to boat coal for said company, under and subject to the above-mentioned printed regulations for boating coal, from Mauch Chunk to Philadelphia and intermediate places, as directed by said company, the ensuing season, as soon as practicable after being notified to do so by said company, and find boat, boat equipage, horses, hands, provisions, tow-lines, and all things necessary for boating, at the following prices, viz.:</p> <p>From Mauch Chunk to Philadelphia, one dollar twelve cents per ton.</p> <p>From Mauch Chunk to Bristol, one dollar per ton.</p> <p>“ ditto “ any intermediate place, in addition to eight cents per ton for unloading, one cent per ton per mile.</p> <p>3. The said contractor will continue as steady and regular as practicable in boating coal throughout the season, and will not take such back freight as will cause interruptions in the regular trips. And if, in the opinion of the said superintendent, the master of said boat should wilfully neglect or unreasonably delay the navigation of said boat, the said superintendent shall have power to determine that this contract has been abandoned, and such determination shall exonerate the company from every obligation imposed on them by this contract, and they mayimmediately proceed to dispose of said boat in the same manner as if this contract had never been made.</p> <p>4. The said superintendent, on behalf of the said company, agrees to sell the said contractor said scow boat, on the terms herein above mentioned, for the sum of $287.50, and to pay the said contractor for all coal boated by him, at the rates mentioned in this agreement, and in the manner mentioned in the second regulation of the company’s printed regulations for boating coal, hereunto annexed.</p> <p>In witness whereof, the said parties have hereunto set their hands and seals, at Mauch Chunk.</p> <p>his</p> <p>John M Callahan, [l. s. mark.</p> <p>Abiel Abbott, [l. s.]</p> <p>Witness, N. Hoyt. Superintendent.</p> <p>The following was endorsed on the above, and executed by the same parties:</p> <p>It is expressly agreed that no transfer of this contract shall be allowed, without tne consent of the company, and that no sale of the boat, by process against the contractor, shall authorize the purchaser to hold or keep possession of the boat, or give him or them any interest therein or title thereto. Mauch Chunk, 13th day of 9th month 1833.</p> <p>his</p> <p>John M Callahan, [l. s.] mark.</p> <p>Abiel Abbott, [l. s.]</p> <p>Witness, N. Hoyt.</p> <p>The following printed regulations accompanied and were attached to the said agreements, at the time of their execution:</p> <p> Regulations for boating Coal. </p> <p>Persons who contract with the Lehigh Coal and Navigation Company for boating coal will be subject to the following rules, viz.:—</p> <p>1. All contracts are to be for the season, the termination of which is to be decided by the Board of Managers, and the boats, during the contracts, are to be confined exclusively to the business of the company, except for back freights.</p> <p>2. One-tenth of the amount of freight to be retained by the company until the close of the season, as security for the fulfilment of the contract, ,&c.: if not fulfilled, or if declared to be abandoned by the company’s superintendent, the said one-tenth to be forfeited.</p> <p>3. The company will sell contractors the necessary boats at cost for cash, or the contractors may pay for them, cost and interest, by leaving in the hands of the company at least ten dollars for each trip to Bristol or Philadelphia, or in that proportion for shorter trips, until the amount is made up. When fully paid for, the boat will be transferred by bill of sale to the contractors, but, until then, the boat to remain the property of the company, and in case of forfeiture of contract, the amount paid on account of the boat to be forfeited also.</p> <p>4. All boatmen in the service of the company are to conform to the rules and regulations which may from time to time be adopted for boats using the harbours or navigation of the company, or the harbours or navigation of the State canal.</p> <p>5. The boats will be loaded in the Mauch Chunk harbour, in the order of their arrival there, provided the boatmen are ready, and attend to take their turn, otherwise the next in order will be loaded first.</p> <p>6. The boatmen must bring their boats to the shute, guy them there while loading, and receive the coal as discharged from the shute.</p> <p>7. As soon as the coal is delivered in the boats, it will be under the sole charge of the boatmen, and contractors shall be accountable to the company for its safe delivery and discharge at its place of destination, agreeably to the receipt or bill of lading, to be signed by the captain, containing an obligation so to deliver it.</p> <p>8. At Bristol and Philadelphia, the crews of the boats will be assisted in the discharge of the coal by hands furnished by the company, so as to give the utmost despatch, and the boats will be discharged in the order of their arrival, provided the crews are ready and attend to take their turn, otherwise the next in order will be unloaded first. Coal ordered to any other place on the route than Bristol or Philadelphia, shall be discharged from the boats by the contractors.</p> <p>9. The company will furnish steamboats at Bristol to tow such boats as are to discharge at Philadelphia, with as little delay as practicable, both down and up, and the boatmen are to continue the charge of the boat in tide; and in case of the sinking of the boat, the loss of the coal to be the company’s, and the price of freight to be the loss of the contractor.</p> <p>10. The company will pay all tolls on canal and boat, on both the Lehigh and Delaware canals. For any other freight, the contractor must pay the toll.</p> <p>11. Should a breach or breaches occur in the Lehigh or Delaware canals during the boating season, the company will agree to pay three dollars per day for each boat, for all the time over one day that the boats may be detained while such breach or breaches are repairing; and as a compensation for such payments, it is understood that the boatmen are to assist in repairing such breaches, if required by the supervisor employed by the State, or the company’s agent, if on the Delaware canal, and by the superintendent or agent of the company, if on the Lehigh canal; and the wages for such time as they may be employed, either by the State or the company, is to be received by the company. Provided, that if the boatmen refuse or neglect to assist at the repairing of breaches as before mentioned, they forfeit the payment of the three dollars per day for their detention.</p> <p>12. The company will guarantee that the loads for each scow boat shall average fifty tons for the season; and should the average be more than fifty tons, the contractors to have the advantage of the increased quantity.</p> <p>Nelson Hoyt, a witness for the plaintiffs, testified that Abiel Abbott was the superintendent of the company at the date of these agreements. The Lehigh Company built the boats shortly after the contracts were made. Callahan got possession by the terms of the contracts. Callahan was in the employ of the company two or three years after the date of the first agreement. The boats were used for transporting coal from Mauch Chunk to Philadelphia by the company. Mr Brittain got possession of the boats in 1834, in the fall. Witness found the defendants in the possession of the boats at that time, and gave verbal notice at the sale and to the crier that the boats belonged to the company at New Hope; that the company held exclusive possession and ownership of the boats, and they would hold the sheriff and purchasers liable for the boats., under the authority of the Lehigh Coal and Navigation Company. One of the Brittains was there. The boats were worth $200 apiece at that time. Sellers and Brittain held a short conversation after the notice, and then the boats were sold and bought by Brittain. They refused to give up the boats to witness.</p> <p>On his cross-examination he stated he received the boats after they were built, took them off the contractor’s hands, and gave credit for them. He was in the employ of the company. The boats were built in the latter part of 1832, or beginning of 1833. The sale was made in January 1837. The boats had not been under any shelter. He was on the boats and saw them, not injured further than fair wear and tear. He gave no notice after the sale. He made no demand of any one after the sale. The only demand was the notice before the sale of the boats. The boats, he thought, went to Jersey after the sale.</p> <p>W. H. Sayre, a witness for the plaintiffs, testified that he was an officer of the Lehigh Coal and Navigation Company — the collector at Mauch Chunk and boating clerk — since 1828. That, on boat 145, in 1833, Callahan paid $97.90, and, in 1834, $58.20, making $156.10; that he paid on boat 228, in 1833, $41.90, and, in 1834, $100.90, making $142.80. These sums were retained from the amount of freight earned by Callahan; he paid no money in cash for them. On the 6th June 1836y including $31.86 interest, Callahan owed on boat 145 $165.76, and on boat 228, including $29.60 interest, $174.37. He was charged interest on the price of boats from delivery, and was allowed interest on the carriage. Callahan got the boats under the contracts. The company never refunded the amount retained to Callahan.</p> <p>The plaintiffs then offered in evidence the following letter from A. Abbott, directed to William Zane, South Easton: —</p> <p>“ Mattcii Chunk, June 29, 1836.</p> <p>“Dear Sir: — Yours respecting the two boats which Callahan had is received. You will do whatever Porter advises to be done in that case. The boats are declared abandoned, as provided for in the contract.”</p> <p>W. H. Sayre called again. — This paper is the. hand-writing of Abiel Abbott. • The paper dated 29th June 1836 is the only written entry of abandonment that I know of. Mr Abbott, the superintendent of the company, is dead, and this was found in the office of the company, in his hand-writing. Wm. Zane was superintendent of the company at South Easton. Callahan received these two boats.</p> <p>The admission of this paper was objected to, but it was admitted, and the defendants excepted.</p> <p>Ingham Smith, affirmed. — I was present when the boats were sold. I heard Mr Hoyt give public notice to all that were there that the Lehigh Company claimed the boats as exclusively theirs. He demanded them for the company. Mr Brittain said, persons buying them, if they did not get them, they would not have them to pay for. He assumed the responsibility of selling them, and directed the crier to go on and sell them.</p> <p>Joseph Butler, sworn. — In the fall of 1836 I was agent for the Lehigh Company, on the Delaware division. I received a power from Mr Zane, agent for the company at South Easton, dated Nov. 4, 1836, to demand and take possession of the boats., On the 7th November 1836 I called on Brittain and demanded the boats in the name of the Lehigh Company. Mr Brittain replied they were now in the hands of the law; he was willing to abide the decision of the law; but said, if the Lehigh Company would pay him what they retained from Callahan, he would give them up. On the 10th November I called at the sheriff’s office in Doylestown; Mr Field, then sheriff, absent; I demanded the boats of Dungan, deputy sheriff. He said he could do nothing unless he saw the attorney, Mr M’Dowell. M’Dowell, after being consulted, said the boats would not be given up. He was the attorney of Brittain.</p> <p>W. H. Sayre, again. — “This is the book that contains the register.”</p> <p>The plaintiffs then gave in evidence the following entries from said book: —</p> <p>Canal Boats.</p> <p>BOAT No. 145.</p> <p>When contracted or transferred.</p> <p>To whom contracted.</p> <p>Price.</p> <p>Retained.</p> <p>Remarks.</p> <p>6 month, 1836 — sent contract to Wm. Zane, to be given to Jas. M. Porter. 229. 4 mo. 16, 1833. 1834, John Callahan, do. 290 00 156 10 133 90 97 90 58 20 156 10</p> <p>6 month — sent contract to Wm. Zane, to be given to Jas. M. Porter. 9 mo. 13, 1833, 1834, John Callahan, do. 287 50 142 80 144 70 41 90 100 90 142 80</p> <p>The defendants gave in evidence the record of a suit, brought in the Common Pleas of Bucks county, No. 39, to Feb. Term 1835, by A. C. Brittain & S. B. Brittain, trading under the firm of A. C. Brittain & Co., against John Callahan, attachment in case, bail $640, issued Jan. 30, 1835, in which the sheriff'was directed to attach the two canal boats, or scows.</p> <p>They further gave in evidence the writ of attachment, and the petition of A. C. Brittain to said court for an order to sell the boats, &c., which was filed on the 14th March 1835. On the 16th December 1836 the sheriff returned that he had sold the canal boats to A. C. Brittain & Co. for $320. No judgment was entered in this case.</p> <p>The defendants then called H. N. Beaumont, who testified that he bought these boats of Mr Brittain, and paid $275 for both. On his cross-examination he stated he paid for them in the summer of 1837. They lay in the basin below New Hope. They were sunk when he bought them; not as good as he expected when he bought them. When he paid Brittain he threw off the interest, because the bottoms were injured. It cost over $100 to repair them.</p> <p>The court (Burnside, President) charged the jury as follows:</p> <p>You will observe by the regulations of the company, No. 3, they proposed to sell contractors boats at cost for cash, or the contractors may pay for them cost and interest, by leaving in the hands of the company at least ten dollars for each trip to Bristol or Philadelphia, or in that proportion for shorter trips, until the amount is made up. When fully paid for, the boat will be transferred by bill of sale to the contractors, but until then the boat to remain the property of the company, and in case of forfeiture of contract, the amount paid on account of the boat to be forfeited also. The articles of agreement were predicated on this regulation. The company also furnished horses, provisions, tow-lines, and all things necessary for boating, at specific prices. By the contract the superintendent shall have power to determine that the contract has been abandoned, and such abandonment shall exonerate the company from any obligation imposed on them by this contract, and they may immediately proceed to dispose of the boat,, as if the contract had never been made. On these terms the scows were sold — No. 145 for §290, and No. 228 for §287.50. Callahan got possession of the boats, and retained it in 1833 and 1834. On 145 he had a credit on the books of the company for §156.10, and on 228 a credit, in 1834, of §142.80.</p> <p>The inquiry for the court is, is such a contract legal ? It is all right as between the parties; but the inquiry here is, can it be sustained against the creditors of the purchasers of the boats upon such terms? In the early period of our judicial decisions there was a strong leaning in favour of such contracts, but as the country increased in population, and the transactions and business of the country increased, it was found not to answer any valuable purpose. . In Clow v. Woods, (5 Serg. <$• Rawle 286), it was decided that a mortgage of the bark, tools in a tari-yard, and the leather and skins, with a provision that the mortgagor, the tanner, should remain in possession in the tanning and finishing the leather, was per se fraudulent and void against bond fide creditors. The subject again came before the Supreme Court, in Babb v. Clemson, (10 Serg. Rawle 423). There Benjamin Pusey sold cattle to his sister-in-law, Elizabeth Clemson, and there was evidence that she paid Peter, a man on the farm, to take care of the latter: they remained on the same farm. This was held to be a colourable possession, and fraudulent as against creditors. Again, in Martin v. Mathiot, (14 Serg. <§■ Raiule 214), the Supreme Court held that on a sale of chattels, if the vendor and vendee agree that the possession shall pass to the vendee, but the property remain in the vendor until the whole purchase money is paid, such agreement, as respects creditors, is fraudulent; and it is immaterial whether it appear that the creditor trusted the debtor on the credit of the goods which were in his possession, or not. We might cite other cases. Upon a careful examination of these written papers, it is the solemn opinion of the court, that the agreement between the company and John Callahan, under the rules and regulations, is per se fraudulent, and that the plaintiffs cannot sustain this action. The legal as well as the actual possession of the goods was in Callahan ; that it was a sale of the boats for a specific sum; that no bill of sale was essential to the sale, and that the policy of the law will not tolerate such agreement between the company and Callahan ; that the agreement that no sale by process against the contractor shall authorize the purchaser to hold or keep possession of the boats, or give him or them any interest therein or title thereto, does not better the case of the plaintiffs. The article calls it a sale; and a sale of personal property, when the vendor claims the right to regain the property if the whole purchase money is not paid at an indefinite period of time, is fraudulent and void against creditors. The plaintiffs contend that it is necessary, by the maritime law, that a sale of a vessel should be in writing, and that it does not pass by parol. We have already instructed you tnat the sale of a canal boat may be made by parol. We do not think our canals are subject to the maritime law. We see nothing in the case to take it out of the rule we' have stated.</p> <p>To this opinion the plaintiffs excepted.</p> <p>Errors assigned:</p> <p>1. The court erred in charging that the plaintiffs could not sustain this action; that the agreement between the company and Callahan, under the rules and regulations, was per se fraudulent.</p> <p>2. In charging that the legal, as well as the actual possession of the goods, was in Callahan.</p> <p>3. In charging that the agreement between the company and Callahan that no sale by process against the contractor shall authorize the purchaser to hold or keep possession of the boats, or give him or them any interest therein or title thereto, does not better the case of the plaintiffs.</p> <p>. 4. In charging that, where the vendor claims the right to regain the property if the whole purchase money is not paid at an indefinite period of time, the sale is fraudulent and void against the creditors.</p> <p>5. In charging that the sale of a canal boat may be made by parol.</p> <p>6. In charging that our canals are not subject to the maritime law.</p>

<p>Under the proviso of the 25th section of the Arbitration Act of 16th June 1836, if the arbitrators award a nonsuit of the plaintiff and he appeals, it is not a sufficient reason to allow the plaintiff to suffer a nonsuit without consent, that the arbitrators erred in law in finding as they did, nor that the plaintiff wishes to bring another suit and have another reference.</p>

<p>What things are assets in the hands of an administrator.</p> <p>Tenant from year to year of a tavern: on his decease his administrator takes possession: he is chargeable with the leasehold interest and good-will as assets, at the price offered him for them by others and refused.</p>

<p>Where a charter of a society provides for an offence, directs the mode of proceeding, and authorizes the society, on conviction of a member, to expel him, this expulsion, if the proceedings are not irregular, is conclusive, and cannot be inquired into collaterally by mandamus, action, or any other mode.</p> <p>The courts have jurisdiction to keep such tribunals in the line of order, and to prevent abuses.</p>

<p>LIBEL for divorce by Ann M’Dermott, late Ann Lynch, by her next friend, Francis Dimond, against John M’Dermott, in 'the Common Pleas of Montgomery county, in which a decree was made in favour of the libellant, and the respondent appealed.</p> <p>The following libel was filed on the 19th August 1843:</p> <p>The petition of Ann M’Dermott, late Ann Lynch, by her next friend Francis Dimond, respectfully shows, that your libellant, on the 23d November 1831, was bound in holy matrimony, and married to a certain John M’Dermott, late of the parish of Knockbride, in the county of Cavan, Ireland, now of the borough of Norristown, in the said county of Montgomery; and from that day until the first day of June 1834, lived and cohabited with the said John M’Dermott, in the said county of Cavan, Ireland, as his wife, and as such was owmed and acknowledged by him, and so deemed and reputed by their neighbours and acquaintances. During this period of two years and a half they lived very affectionately together, and had one child (a boy) born unto them, and who is still living, as this libellant believes. At the said last-mentioned period, to wit, about the first of June in the year last aforesaid, the said John M’Dermott took leave of the said Anne his wife and of his child (they being then domiciled in the county of Cavan, in Ireland aforesaid), in order to emigrate, as he said, to the United States of America, he promising at his departure to either send for or return to them, his said wife and child, in the course of a year from the said time of his departure. He then, to wit, in June of the said year 1834, departed from his native land and emigrated to the United States of America, leaving his said wdfe and child domiciled in the said county of Cavan, in Ireland. During a space of four years immediately succeeding the aforesaid time of his departure from his wife and native land, he continued to send many proofs of affection and remembrance to his said wife through the medium of a relative of his who lived near his said wife, and with whom he corresponded by letter. But from and after the expiration of the said space of four years these proofs of his kind remembrance began to be very rare, and in a short time entirely ceased to be afforded to his said wife. Nevertheless your unhappy libellant could not then be persuaded that her husband, the said John M’Dermott, had yet entirely alienated his affections from her the said libellant, and endeavoured to believe that he had not yet wholly abandoned her and his said child to the mercies of the world. She, your said libellant, therefore continued by her industry to support herself and the said child, in the hope and trust that her husband, the said John M’Dermott, would yet have compassion on his wife, the said libellant, and his child aforesaid, and would either return to or send for them, and relieve them from their pressing loneliness and abandonment; until the spring of the year 1842, when she received the most cruel proof that a woman can receive, that she the said libellant was indeed wholly and utterly abandoned by her said husband, the said John M’Dermott. It was then that, pressed by the evils of her poor and lonely condition, and abandoned by him who had bound himself to be her protector by the most sacred of human laws, and under the most solemn sanction of religion, she, your libellant, resolved to leave her country and her kindred, and to go to that part of the United States of America where she understood her said husband, the said John M’Dermott, resided, and there to demand from him the restoration of his shelter and protection, or, failing his compliance, to ask for herself the protection of the laws of that country which, had afforded her said husband, the said John M’Dermott, a refuge. For this purpose she, your libellant, left her native home in the month of May last past, and arrived in the borough of Norristown aforesaid on the 25th day of July last past, and took up her residence at the Railroad Hotel, kept by Mr Daniel Henkle, in the said borough, where she now resides. On the evening last mentioned of her arrival in the said borough, a messenger came to her from her said husband, the said John M’Dermott, saying that he, the said John M’Dermott, wished to see her, your said libellant; whereupon she forthwith went in company with his said messenger, and on the evening last aforesaid met her said husband, the said John M’Dermott, who immediately recognised her, the said libellant, as his wife, and received her with apparent kindness, but signified that under present circumstances it would be necessary for her, the said libellant, to take up her residence in Philadelphia, until he, the said John M’Dermott, could make his ^arrangements for going back with her, the said libellant, to their native country. This proposal for her to reside in Philadelphia apart from her said husband, this libellant thought proper to decline, whereupon they separated for the evening, he having conducted her to the door of her hotel aforesaid. On the next day following, your libellant met the said John M’Dermott, whereupon he reiterated to her the proposal of the preceding evening, to wit, that she should reside apart from him in Philadelphia, where he said He would provide for her, but declared that if she refused to comply with this proposal, he would not recognise her as his wife. Yet, notwithstanding this harsh usage, this libellant resolved to abstain for a few weeks from obtruding herself on her said husband’s presence, or troubling him by her entreaties or reproaches, in the hope that, seeing her humility and forbearance, his conscience and better feelings might be' re-awakened, and he might be induced to do her justice without her invoking the aid of the laws in this behalf. But this your libellant’s last hope was suddenly dashed to the ground by the arrival of a note or letter from the said John M’Dermott, directed to her host the said Daniel Henlde, on the 27th July last past, of which.the following is a copy, to wit:</p> <p>Mr. Daniel Henicle—</p> <p>Sir : I understand that there is a female person stopping at your house who is trying to make it known to the people of Norristown that she is my wife. I deny knowing or of ever having married such person, nor" yet will I recognise any such person my wife as is described to be at your house. I notify you not to trust or harbour any such person on my account, as I will not be answerable for the same.</p> <p>I am your friend respectfully,</p> <p>Jn. M’Dermott.</p> <p>Sir, the sooner that person is from your house, the better.</p> <p>Your libellant, therefore, finding herself utterly and hopelessly abandoned by her said husband, the said John M’Dermott, in a strange land, and upon the mercy and the sympathy of strangers, charged in the presence of those strangers as a base impostor that was utterly unworthy of their sympathies, by him from whom she thought herself entitled to look for sympathy, protection and support, by all the laws of Divine and human sanction, has at length resolved to appeal to these laws. She, the said libellant, now most humbly represents to this honourable court that the said John M’Dermott, from the said 25th July 1843, hath, the said parties being at that time resident at Norristown aforesaid, wilfully and maliciously absented himself from the habitation of this libellant, and abandoned his family without just or reasonable cause, and has, from the said date, persisted in such desertion. Wherefore your libellant prays your honours that a subpoena may issue from the said court, directed to the said John M’Dermott, commanding him to appear at the next November Term of the said court to answer this petition: and also that a decree of the said court may be given, granting this libellant a divorce from bed and board, and also allowing her such alimony as the said John M’Dermott’s circumstances will admit of, so as the same do not exceed the third part of the annual profit or income of his estate; or of his occupation or labour. And the said libellant as in duty bound will ever pray, &c.</p> <p>A subpoena was awarded by the court, T. B., on the 19th August 1843. To this petition and subpoena the respondent, on the 24th February 1844, filed the following demurrer and answer:</p> <p>The said John M’Dermott, saving and reserving to himself all and all manner'of benefit of exception to the manifold errors in the said libel contained, for answer thereto, or such part thereof as he is at this time required to answer, answereth and saith, that the said petition or libel of the said libellant, and the matters therein contained, in manner and form as the same are therein stated and set forth, are not sufficient in law for the said libellant to have or maintain her aforesaid action of divorce against him, the said John M’Dermott, and that he, the said John M’Dermott, is not bound by the law of the land to answer unto the same, and this he is ready to verify.</p> <p>And this respondent further saith, that the said libellant hath not resided in the State of Pennsylvania one whole year next before the presenting of her said libel, and is not a citizen thereof, nor is the same alleged or attempted to be alleged in the aforesaid libel; wherefore for want of a sufficient libel and affidavit in this behalf, the said John M’Dermott prays judgment, and that the said libellant may be barred from having or maintaining her aforesaid action of divorce against him.</p> <p>And the said respondent, for further plea in this behalf, saith that each and every the allegations contained in the said libel of her the said libellant are hereby expressly traversed and denied; and of this the said respondent puts himself upon the country, &c.</p> <p>On the 1st March 1844 the court on argument gave judgment for the plaintiff on the demurrer. Same day, leave was given to amend the answer and to put in oath. On the 15th April 1844 the respondent filed the following amended answer:</p> <p>This defendant saving and reserving to himself all manner of benefit and advantage of exception to the manifold untruths, uncertainties and imperfections in the said libel contained, for answer thereto, or unto so much thereof as this defendant is advised is in any way material for him to answer to, answereth and saith that he cannot admit that he, this defendant, was ever lawfully bound in holy matrimony and married to the said libellant, or that they lived and cohabited together as man and wife, or that they were so deemed and reputed by their neighbours and acquaintances for the period stated in the said libel or for any other time, unless the following statement of facts, which this defendant avers, shall in law amount to such lawful marriage and cohabitation as the said libellant supposes. This defendant avers and admits that he knew the said libellant in the county of Cavan, in Ireland; that some time in the year 1831 or about that time the said libellant was living at service in the family of defendant’s father, where defendant then resided, and continued so at service there for the space of about six months, when she was discharged in consequence as defendant believes, of the discovery of an illicit intercourse between said libellant and this defendant; that after her dismissal this defendant visited her at her father’s house, and some time after this defendant was at Cootehill, a market town in Ireland, some miles from home, and there met libellant with her mothér and two cousins; that said libellant and her mother then told defendant that libellant was in the family-way, and that he must marry her or that bodily harm would ensue, and proposed that they should at once be married. Defendant knowing that the brothers of libellant were vicious, bullying characters, was somewhat intimidated and consented to be married. Bishop Brown was applied to to perform the ceremony, who, after inquiring into the circumstances refused to do so; parties then remained at the tavern drinking until evening. Libellant’s mother proposed that libellant and defendant should that night be married, and that they would go to a priest near the road leading from said market town. Under the belief that the said libellant was enceinte by him as represented by her and the mother, and under the fear of bodily harm from the brothers of said libellant, this defendant consented, and the marriage ceremony was accordingly performed by said priest, between eleven and twelve o’clock of that night — the mother of libellant paid the priest for his services, and each of the parties retired to their respective homes. When this clandestine ceremony became known to defendant’s parents, he, this defendant, was driven from home and remained away about six weeks, when through the intervention of friends a reconciliation was brought about, and defendant was again received by his parents, but on the condition that he the defendant would have no intercourse whatever with the said libellant. For the space of near two years after this, defendant continued to reside with his parents and libellant with her parents, and although defendant acknowledges that during this time he occasionally visited her, yet it was always clandestinely and without the knowledge of his, the defendant’s parents or friends. The defendant then went to reside with a cousin, about fifteen miles distant, where he remained about six months; during defendant’s residence at this latter place, he visited libellant twice, after which defendant came to America where he has resided ever since. The defendant further avers that the representations by the said libellant and her mother that she was enceinte by him, which was used as a means for coercing him to consent to the performance of the marriage ceremony, was fictitious and untrue, as the child was not born for near eighteen months after that time. The defendant expressly denies that he ever lived with the said libellant as man and' wife, either in Ireland or elsewhere, but that their intercourse with each other before the performance of the aforesaid ceremony and the cohabitation afterwards, was as before stated. The defendant further expressly denies that he, this defendant and libellant, ever resided together at Norristown or at any other place in the United States — or that he, this defendant, ever wilfully and maliciously absented himself from the habitation of said libellant' and abandoned his family. But on the contrary, that he continues to reside at Norristown, as and where he has resided for many years, and where he supports and maintains himself by his industry — and defendant further avers that he is informed and believes that the child of the said libellant was, after the departure of defendant from Ireland, taken by defendant’s parents and supported by them without any charge to libellant, and that the said libellant never had her habitation with the defendant, nor the defendant with the libellant, at Norristown, as is alleged by said libellant in her petition or elsewhere. All which matters and things this defendant is ready to aver, maintain and prove, as this honourable court shall award, and therefore prays to be hence dismissed, &c.</p> <p>On the 15th August 1844 the court below decreed a separation from bed and board; and that the respondent should pay to the libellant the sum of $50 on or before the 15th September following; and $20 quarterly from and after that day, for her support and maintenance, and pay also the costs of the libellant.</p> <p>Errors assigned:</p> <p>1. The court erred in deciding against the respondent on the demurrer.</p> <p>2. The court had no jurisdiction, as the alleged cause of divorce occurred out of the State of Pennsylvania.</p> <p>3. There is no evidence to sustain the application on the part of the libellant.</p>

<p>ERROR to the Common Pleas of Chester county, where a judgment was rendered for the defendants below, the defendants in error.</p> <p>This was an action of assumpsit, brought by Welsh, Longenecker & Co. against the executors of William Speakman, Senior, deceased, for goods sold and delivered to the testator and William Speakman, Junior, trading under the firm of William Speakman & Son.</p> <p>The declaration averred the insolvency of William Speakman, Jun. The defendants pleaded the general issue. The main question, on the trial, was whether William Speakman, Sen., was connected in partnership with his son, William Speakman, Jun., as the plaintiffs alleged he was, in a store at Edgmont, Delaware county. The following bills of exception were taken by the plaintiffs during the course of the trial.</p> <p>A witness for the plaintiffs having stated that in the spring of 1840, he, as clerk to Welsh, Cameron &• Co., sold goods to William Speakman, Sen., and his son, both being present, on the credit of William Speakman & Son, though marked for William Speak-man, Jun., the plaintiffs asked him: “Would you, or not, have sold the bill of goods on the credit of William Speakman, Jun., alone ?” The defendants objected; the court sustained the objection and sealed a bill of exception.</p> <p>2. A witness for the plaintiffs proved that he attended the Edgmont store for Mr Speakman, from March 1840 to December 1842, and most of the goods that came there were marked William Speakman & Son. The plaintiffs then asked him: “ How were the bills made out ?” The defendants objected to the question; the court overruled it and the plaintiffs excepted.</p> <p>3. The plaintiffs offered the bills of various merchants in Philadelphia for goods purchased during the years 1840 and 1841, charged to William Speakman & Son, and receipts therefor. The defendants objected, the court overruled the evidence, and sealed a bill of exceptions.</p> <p>4. The plaintiffs then offered in evidence the books of account kept in the store at Edgmont. The defendants objected, the court sustained the objection, and sealed a bill of exceptions. The court subsequently said they had probably fallen into an error in overruling this evidence, and permitted the plaintiffs to give it; which the plaintiffs declined, on the ground that they had designed to give it in connection with explanatory testimony which was not now at hand.</p> <p>5. The plaintiffs offered three promissory notes dated in August 1842, drawn by William Speakman & Son in favour of John Trucks or order. The defendants objected, the court sustained the objection, and sealed a bill of exceptions.</p> <p>6. 7, 8. After various other testimony had intervened, the plaintiffs again offered separately the same bills of goods mentioned in the 3d exception. The court again rejected them, and on the objection of the defendants, sealed a bill of exceptions.</p> <p>9. The plaintiffs offered the day-book of William Speakman & Son, kept at Edgmont. The defendants objected, the court overruled the evidence, and the plaintiffs excepted.</p> <p>10. The plaintiffs offered in evidence the ledger of William Speakman & Son, kept in the store at Edgmont. The defendants objected, the court sustained the objection, and the plaintiffs excepted.</p> <p>11. The defendants called a witness, who stated that he dealt with the store at Edgmont, and produced three bills furnished him, made out in William Speakman, Jun.’s handwriting and in his name, dated in 1842 and 1843, for goods sold in 1842. The defendants then asked him as follows: “ Look at these bills, state the date of them, in whose name made out, and the amount.” The plaintiffs objected, the court overruled the objection, and the plaintiffs excepted.</p> <p>12. A justice of the peace proved in behalf of the defendants that suits were instituted before him to recover accounts due Edgmont store, brought to him by William Speakman, Jun. The defendants then asked him whether he brought suits in the name of William Speakman, Jun. The plaintiffs objected;the court, after the witness had stated on a question by them, that the bills were in the name of William Speakman, Jun., overruled the objection, and the plaintiffs excepted.</p> <p>13. A witness for the defendants, having stated his boarding with William Speakman, Jun. at Edgmont from March to Christmas 1840, and the mode in which the goods were marked that arrived at the store, the defendants asked him to state what means William Speakman, Jun. had to go into partnership? The plaintiffs objected, the court overruled the objection, and the plaintiffs excepted.</p> <p>14. Another justice of the peace stated on behalf of the defendants, that William Speakman, Jun. called on him to collect three bills in August 1841, and process issued on two of them. The plaintiffs objected to his testimony, the court overruled the objection, and the plaintiffs excepted.</p> <p>15. The witness then stated the bills were for debts contracted at Edgmont store, and they were recovered and satisfaction entered by William Speakman, Jun. The defendants then offered in evidence the bills which were in the name, some of William Speakman, others of William Speakman, Jun. The plaintiffs objected, the court overruled the objection, and the plaintiffs excepted.</p> <p>16. The defendants offered to prove by the Secretary of the American Fire Insurance Company, that in January 1842, William Speakman, Jun. procured insurance against fire on the stock of goods at Edgmont in $5000, under an order signed by William Speakman, Jun. with the name or firm of William Speakman & Son, and in consequence of a fire, soon after wms paid the sum of $1800 for the loss, that being the amount settled in 1844 by compromise after suit brought and arbitration. The whole business was managed by William Speakman, Jun., and the witness never saw the elder Mr Speakman. With this evidence the defendants offered in evidence the policy of insurance in $5000, dated 21st January 1842, by which William Speakman & Son were insured on store goods at Edgmont. To this evidence the plaintiffs objected, the court overruled the objection, and sealed a bill of exceptions.</p> <p>Errors were now assigned in the matters contained in the bills of exception.</p>

<p>THIS case came up on exceptions to the opinion of Mr Justice Rogers, before whom it was tried on the 28th December 1843, and who directed a nonsuit. It was an action brought in the Supreme Court by Richard Cochran against William Perry, Andrew Cochran, John D. Beers, and Gates Wilcox, late trading as the Williamsport and Philadelphia Lumber Company. Perry alone was served with process, and appeared and pleaded. The rest were returned not summoned. The plaintiff’s demand was for services rendered to the defendants. After reading several depositions, he offered Andrew Cochran, one of the defendants not summoned (and who was willing to testify), as a witness to prove the partnership of the defendants. The defendants objected to his competency. The court sustained the objection, and the plaintiff excepted.</p> <p>The plaintiff then gave in evidence articles of agreement, dated 31st May 1842, between William Perry, John D. Beers and Andrew Cochran respectively, reciting that these parties, together with Richard Cochran and Gates Wilcox, entered, on the 19th November, 1839, into articles of copartnership, under the style and title of the Williamsport and Philadelphia Lumber Company, a copy of which was annexed (marked A), and the whole of the beneficial interest in the property of the company had become vested in the parties to these presents and the said Gates Wilcox, although some of the shares of the stock of the company were nominally vested in others; and that these parties and Gates Wilcox, on the 25th October 1841 (the whole of the stock really representing an interest being then vested in them), entered into an agreement in writing, as per copy marked (B), for the sale of the real estate of the association; that a sale took place on the 24th November 1841, and the whole was purchased by the parties, except two lots, as appeared by schedule (C). That they were in debt; that the interests of the parties and of Gates Wilcox were represented by shares of stock, viz: Wm. Perry, 310 shares; John D. Beers, 208 shares; Andrew Cochran, 315 shares, and Gates Wilcox 167 shares — total, 1000 shares — the whole amount of stock representing the whole property of the association. It then recites the means applicable to paying debts, consisting, first, of personal estate, and, secondly, proceeds of sale of real estate; therefore, for the purpose of finally dissolving the concern, and winding up its affairs, and producing means to pay debts, áse., it was agreed that Wm. Perry should purchase and take a certain number of acres at certain prices, John D. Beers a certain other number, Andrew Cochran a certain other number, and conveyances should be mutually made. That Gates Wilcox might become a party to these articles at any time, expressing his assent to them under his hand and seal, and thereupon he should be considered a purchaser, under these articles, of the two lots, &c.; and all the covenants should be construed to extend to his purchase, and he considered as coming in under and making himself subject and liable equally with the other parties. And it was further agreed that the said association be, and is from henceforth, dissolved, except so far as joint action is necessary to the winding up and settling its concerns; and for that purpose the parties were to sell the lumber and convert logs into lumber, the residue of debts not thus provided for to be assessed on the purchasers of the real estate, in the ratio of stock, &c., to be secured by bond and mortgage. In conclusion it recites that it is assumed that Gates Wilcox owns the shares standing in the names of G. Jones and G. Griffin, and that Andrew Cochran owns the shares standing in the name of Richard Cochran, and that the shares standing in the name of James Armstrong are merely nominal, he having no interest therein; and that stock thus held should be transferred to the parties in the books of the company.</p> <p>The articles of association marked (A), above referred to, were made the I9th November 1839, between Wm. Perry, Andrew Cochran, J. D. Beers, Richard Cochran, and Gates Wilcox. It was therein recited that they had associated with the object of forming a joint stock company, for the purpose of purchasing timber and timber lands, and mill-seats, and conducting the lumber business in Pennsylvania. It was agreed the estate, real and personal, should be vested in William Perry and Gates Wilcox, in trust for the copartners, their heirs, successors and assigns, in the manner thereinafter described, they to make a declaration of trust. Various articles were then prescribed: the name was to be the Williamsport and Philadelphia Lumber Company; the copartnership was to consist of the parties, and such other person or persons as might become members thereof in the manner thereinafter provided. The capital stock was to consist of the estate real and personal, valued at $337,000.</p> <p>Fourth. The capital stock of said company or copartnership shall be divided into fifteen hundred shares, valued at one hundred dollars each share, which shares shall be represented by certificates to be issued as hereinafter provided, certifying that the holder thereof is entitled to one or more shares, as the case may be, in the capital stock of said company or association, said shares to be transferable on the books of the company, by the holders thereof in person, or by power of attorney as hereafter provided.</p> <p>Fifth. Any person becoming the owner or holder of one or more shares, as aforesaid, shall, from and thereafter, be a member of said company, and entitled to all the privileges of membership as such, as fully as any of the parties hereto are or may be.</p> <p>Sixth. Any of the parties hereto, or any person or persons hereafter becoming members of said company, may, by person or power of attorney, transfer to such other person or persons as he or they may choose, subject to the restrictions hereinafter mentioned, all or any of the shares aforesaid to which he or they may be entitled; but on the transfer aforesaid of all such share or shares to which he or they may be entitled, such person or persons shall cease to be, from and thereafter, a member of said company.</p> <p>Fourteenth. All persons becoming shareholders in said company by transfer on the books as aforesaid, shall be entitled to receive a certificate or certificates signed by the president, -who shall be appointed by said directors from among their own body, and by the secretary, which certificates shall be in the form following : to wit—</p> <p>“ Williamsport and Philadelphia Lumber Company.</p> <p>“ No Shares $100 each.</p> <p>This is to certify that is proprietor of shares</p> <p>of the capital stock and beneficial interests of the Williamsport and Philadelphia Lumber Company, created and acquired in pursuance of the articles of association constituting said company. Each share is of the par value of one hundred dollars, and is clear of all other incumbrance agreeably to the articles of association, and is only transferable on the books of the company and by surrender of this certificate.</p> <p>“ Philadelphia, 18 ( ] " Sec’y. (</p> <p>Trustees. ) A. B. > C. D. ;</p> <p>Pres’t”</p> <p>2. The plaintiff then offered Andrew Cochran as a witness to prove that the plaintiff had ceased to be a member of the said company before the period at which the cause of the present action arose. The defendants objected to his competency: the court rejected the witness and sealed another bill of exception.</p> <p>3. The plaintiff then offered Andrew Cochran as a witness to prove the handwriting of the parties to an agreement dated January 31st 1840, between Cochran, and Perry, and the plaintiff, Richard Cochran, for the sale by the plaintiff of $12,000 worth of stock in said company, in order to show that the plaintiff was not a member of said company when the cause of action accrued: the defendants, however, again objected to his competency; the court sustained the objection and sealed a bill of exceptions.</p> <p>The court entered a nonsuit and the plaintiff excepted.</p>

<p>Under the 11th section of the Act of 13th April 1838, and the 33d and 36th sections of the Act of 7th March 1840, the remaining school directors have the power and it is their duty to declare- the seat of a director vacant whenever the cases contemplated in those sections arise, as well in the county of Philadelphia as in other parts of the State.</p> <p>But in Penn Township this power and duty are expressly vested by the 33d section of the Act of 7th March 1840, in the remaining'directors respectively of each of its election districts of North and South Pehn.</p>

Assumpsit to May Term 1843, No. 10, brought by Daniel M’Teague for the use of William Belt, and subsequently marked for the use of John Bouvier, against Isaac E. Cochran and others, administrators of John Cochran, deceased.

<p>'Will made 16th April 1837: the defendants alleged another will made about the 17th June 1837, different in its dispositions, revoking former wills, and that it was destroyed or suppressed by fraud.</p> <p>Held, 1. That if süoh destruction Or suppression is shown expressly or by circumstances, and that the dispositions of the second will are inconsistent with those of the first, it amounts to a revocation.</p> <p>2. When the second will cannot be found, and the question is what became of it, the first presumption is that it was in the possession of the testator, and that he cancelled, it; but if it was in the possession practically of tho wife or executor whose interests are adverse to if, proof ought to be given on the subject, and the absence of proof is an argument against the presumption.</p> <p>3. In case of spoliation or fraud in respect to the second will, it is not necessary to show its contents, or in what respect it revoked the first, as must be done in ordinary cases.</p>

<p>ERROR to the District Court for the city and county of Philadelphia.</p> <p>This was an action of trover brought by Mark Hollingsworth, who survived Edmund Tiliston, late copartners under the firm of Tiliston and Hollingsworth, against Robert A. Caldcleugh, to recover the value of a paper machine or roller. It appeared that the machine in question was consigned by the plaintiffs, living in Boston, to a firm in Philadelphia, by whom it was sent in 1840 to M’Ewen, a machinist, in whose shop it remained a year and a half or two years without undergoing any repairs, no instructions having been given for that purpose. While there, it was distrained for rent on the 10th June 1842 by the defendant. Notice of the distress was given to the tenant M’Ewen. Five days after this notice the property was appraised, and afterwards advertised for public sale on the 22d June,'on which day the sale was adjourned to the 28th. Notice of the first day of sale and adjournment was advertised in the Daily Chronicle, and notices were posted on the premises. No one attended at the sale to point out the machine, nor was any notice given in respect to it. No claim was made for it till upwards of a year after the sale.</p> <p>The court below charged the jury that trover lay. Goods left to be repaired were privileged from distress, and their owner could maintain this action against the landlord'to recover their value.</p> <p>To this charge the defendant excepted.</p>

<p>An assignment in trust for creditors is good, although it excludes unreleasing creditors and reserves a trust of the surplus for the debtor.</p> <p>To affect land in the hands of a purchaser, a judgment must have been not merely simultaneous with but anterior to the conveyance; and the precise time at which the judgment was entered must be shown by less than record proof.</p>

<p>ERROR to the District Court for the city and county of Philadelphia.</p> <p>This was an action of trespass vi et armis, brought by Jacob Shuster against William Russell and Charles Downer. The declaration charged the defendants with arresting the plaintiff and taking him to the mayor’s office and imprisoning and keeping and detaining him in prison there, without any reasonable or probable cause, for four days, &c. The defendants pleaded not guilty with leave.</p> <p>On the trial the plaintiff called the mayor of the city, who testified that the plaintiff, Shuster, alias Hand, was brought to his office by the defendants on the 13th March 1842. That he committee! him for a further hearing. He thought the proof authorized the belief that he had been committing an offence elsewhere. The evidence was such as to make it proper to hold him. They had no process. The plaintiff was discharged by him from Moyamensing prison, after three days, because no offence was charged against him. There was an examination of Shuster’s baggage with his own consent. That the greater part of the evidence was from the trunk and its contents, and from Shuster’s past habit of life.</p> <p>The defendants then asked the witness to state the contents of the trunk, for the purpose of showing that the plaintiff was addicted to burglary. The plaintiff objected; the court rejected the evidence, and the defendants excepted.</p> <p>The defendants then offered to give in evidence the character of the plaintiff in mitigation of damages. This evidence was rejected by the court, and .the defendants excepted.</p> <p>The two bills of exception were the subject of the errors assigned.</p>

<p>Payment into court or tender in notes of a bank, as between the bank itself and its debtors, is equivalent to payment in specie.</p> <p>If the obligor of a bond to a bank holds the notes of the bank at the time he receives notice of the assignment of the bond, the assignee is bound to receive them as cash in payment of it; but if he obtained them after notice, they would be no defence either as payment or set-off in a suit on the bond by the assignee in the name of the bank.</p> <p>In such suit, evidence of transactions between the defendant and the bank is admissible for the defendant, where such transactions commenced before he received notice of the assignment, though the liability of the bank was not complete at the time of such notice.</p> <p>Evidence that the defendant in the suit was a man of business and in the habit of taking notes of that bank, is no proof of the time when the defendant received the notes set up as a defence.</p>

This was an action of debt brought by the Northampton Bank for the use of James Smoyer against the administrator of Mathew Selfridge, deceased, on a bond and mortgage given by Selfridge to the bank, dated 7th September 1836, for the payment of $10,000 in five equal annual payments with interest. The plaintiff claimed to recover $5800 with interest, amount deposited in the bank by Smoyer.

THIS was an appeal by Michael D. Ebenhardt and Charles F. Diekenschiedt from the decree of the Common Pleas of Lehigh county. The facts of the case were as follows: — On the 26th April 1842, Henry Hein obtained a judgment for $1200 against John Rice, who was then the owner of three lots of ground, viz: Nos. (1), (2) and (3).

<p>ERROR to the Common Pleas of Northampton county.</p> <p>The following case was stated in the court below, in which the defendant in error was plaintiff, and the plaintiff in error defendant, in the nature of a special verdict, with liberty to either to take a writ of error.</p> <p>The assessor of the township of Allen has returned for taxation, per county rates and levies, 76 acres of land and six lock-houses as the property of the defendant at the valuations specified in the assessment, a copy of which is hereto annexed and made part of this case. The assessor of the borough of South Easton has returned among the property of the defendants liable to taxation for the same purposes, an office and a house, (designated as “ 1 house on flat,”) each valued at $300.</p> <p>The land in Allen township so assessed, except seven acres, is the land occupied by the bed, berm-bank, and tow-path of the canal constructed by the defendants, in improving the navigation of the river Lehigh, and for keeping the same in repair, from the mouth of Nesquehoning creek to the mouth of said river at Easton; and the houses situated in Allen township, and the said house situated in South Easton, so assessed, are lock-keepers’ houses, occupied by the keepers of the locks, on. the said canal, contiguous to the said locks respectively. The said houses in Allen township being erected by the defendants expressly for the purpose, and the said house in South Easton having been partly erected before the construction of the said canal, and enlarged and finished since its completion, having been used and occupied exclusively as a lock-keeper’s house for many years past. The said “ office” in South Easton, having been erected by the defendants expressly for a collector’s office, and used as the office for the collection of tolls for said company at the eastern end of their navigation. The said lock-keepers’ houses and collector’s office are necessary to the proper transaction of the business of the said navigation. The defendants were incorporated, and constructed their said navigation in pursuance of the Acts of the General Assembly of Pennsylvania, entitled an Act to improve the navigation of the river Le-high, passed 20th March 1818, and an Act to incorporate the Lehigh Coal and Navigation Company, passed 13th February 1822.</p> <p>The questions for the decision of the court are, whether any, and if any, what part of the said property is liable to be assessed for purposes .of taxation under the Acts of Assembly for that purpose. If the court shall be of opinion that the said 69 acres of land, occupied as aforesaid for the bed, berm-bank, tow-path, &c. of the said canal, or the said lock-houses or toll-houses, or the said collector’s office are liable to assessment for taxation, then judgment to be entered for plaintiff, specifying in their opinion which, if any, of the said premises are so liable; otherwise judgment to be entered for the defendants.</p> <p>(Copy of the assessment and notice, Allen township).</p> <p>To the Lehigh Coal and Navigation Company. Take notice that you stand rated for the following year, as follows:</p> <p>For County use—</p> <p>Profession, trade, or occupation, -.......$-</p> <p>Real Estate, 69 acres land, $2760</p> <p>7 250</p> <p>6 lock-houses 2100</p> <p>Whole valuation, $5140</p> <p>Rate 15 cents to the $100.</p> <p>Amount of county tax, $7.71</p> <p>State use—</p> <p>Real Estate, $5140</p> <p>Amount of State tax, 5.14</p> <p>(And notifying time of appeal, &c.)</p> <p>(Assessment and notice. South Easton).</p> <p>For County use—</p> <p>Real Estate — 100 acres of land - - - $7000</p> <p>Office....... 300 (Col’s. Office.)</p> <p>1 house on flat - - - - 300 (Lock-House)</p> <p>1 house & 9 lots, n. side canal 1500</p> <p>5 lots south side canal - - 1000</p> <p>Barn & 11 lots on M. C. street 2500</p> <p>Furnace and lot - - - - 3000</p> <p>1 house....... 75</p> <p>$15,675</p> <p>Rate 15 cents to the $100.</p> <p>Amount of county tax, - - - - - - $23.57</p> <p>For State use—</p> <p>Real Estate,.........$15,675 - - $15.75</p> <p>Money at interest, &c. (A notifying of time and place of appeal).</p> <p>The court were of opinion that the 69 acres of land were not liable to taxation, but that the lock-houses and collector’s offices were, and gave judgment for the plaintiff, so far as related to the lock-houses .and collector’s offices.</p> <p>Error assigned:</p> <p>The court should have rendered a judgment in favour of the defendants on the case stated, as' none of the property described therein was liable to taxation as real estate.</p>

<p>Where the father is living with the mother, to make a valid indenture of apprenticeship of their son, the assent of the father before the magistrate at the time of the binding, expressed in writing, is necessary: the assent of the mother is not sufficient.</p>

<p>ERROR to the Common Pleas of Lehigh county.</p> <p>Ejectment to September Term 1843, by Peter Troxell against Jonas Stofflit' for a strip of land in that county. Before bringing the ejectment, viz., on the 28th April 1841, Troxell had leased his farm to one Metzger, and while the lease continued Stofflit tore down his part of the line-fence between his land and Troxell’s, and extended it on Troxell’s two or three feet.</p> <p>The defendant requested the court to charge the jury that the plaintiff could not recover, inasmuch as he had leased the land prior to the commencement of this action, and the tenant was in possession of the same when the suit was brought, in virtue of said lease. The court answered as follows:</p> <p>In giving an answer to this point, it is proper to say, that there is a difference of opinion with the members of the court in relation to it. I therefore charge the jury, that said lease and possession under it does not stand in the way of the plaintiff’s recovery. I thus charge you in conformity to the opinion of my associates, and will consider the point answered, so that the defendant may have the benefit of it, if the verdict should be against him.</p> <p>To this part of the charge the defendant excepted.</p> <p>The jury gave a verdict for the plaintiff.</p>

<p>Where an Act of Assembly directs a penalty to be recovered by any person suing for the same, the sum when recovered to be paid one half to the person suing, the other to the treasurer or county commissioners, a common informer may sue in his own name.</p> <p>Where the practice is on appeal from a justice to go to trial on his transcript, and the justice orders that the penalty be paid one half to the plaintiff and the other half to the county commissioners, this is equivalent to a declaration qui iam.</p> <p>Where a person sues as common informer, an amendment to the declaration that he sues as well for himself as the treasurer of the county ought to be allowed.</p>

<p>ERROR to the Common Pleas of Chester county.</p> <p>The case is stated in the opinion of the court. It was argued by</p>

<p>Any debt due by the garnishee in a foreign attachment to the defendant at the time of the answer to interrogatories is embraced by the attachment.</p> <p>A claim uncertain at the time of the attachment but rendered certain at {he time of the answer to the interrogatories, is embraced.</p> <p>An assignment after the attachment is subject to its lien, and will not convey as against the plaintiff in the attachment a claim uncertain at the time of the attachment, but fixed and ascertained when the answers to the interrogatories are put in.</p>

<p>Where a certificate of deposit not negotiable is issued by a hank and afterwards sold by a broker, who endorses it without recourse, and it turns out that the endorsement of the payee was forged, the broker’s liability depends upon the parol circumstances attending the sale of the note.</p> <p>It is for the jury to say whether on the evidence the plaintiff took the note subject to every risk or not.</p> <p>The question of laches in presenting a certificate of deposit to the bank for payment, is a mixed question of law and fact.</p> <p>So also is the time of giving notice to the prior endorser.</p>

This was an amicable action of ejectment for a lot of ground in the borough of Easton, in which Thomas Leidich was plaintiff, and William Leidich, Henry Leidich, Samuel Snyder and Catherine his wife, John Leidich and Christina Singer, defendants. The following case was stated for the opinion of the court below, in the nature of a special verdict, either party to have the right to a writ of error.

A petition was presented to the court below by Jonathan Adam-son and Benjamin Jones, supervisors of Whitemarsh township, Montgomery county, setting forth that the Philadelphia, German-town and Norristown Railroad Company, after the passage of the Act of 8th February 1834, a supplement to their act of incorporation, occupied part of the bed of a public road in Whitemarsh township, Montgomery county, leading from the Spring Mill road to the Philadelphia county line, and…

<p>Defendant guaranteed to plaintiff $3000 commissions for transporting goods west for defendant, plaintiff covenanting to forward no goods for any other person or line for any place west of Hollidaysburg. Plaintiff cannot recover on the guaranty, if he forwarded goods by other lines as far as Hollidaysburg, if their ultimate destination was for places west of Hollidaysburg.</p> <p>A person cannot recover for part performance of an entire contract, where he has failed in the performance on his part.</p>

<p>ERROR to the Common Pleas of Northampton county.</p> <p>This was an action brought by Franklin L. Crane against Andrew Whitesell and others, to recover the value of a trunk and its contents. It appeared that, in October 1838, the plaintiff and wife took passage from Philadelphia to Easton, the residence of the plaintiff, in a stage-coach of the defendants. Their baggage, consisting of one trunk, was placed in the boot, which was securely fastened. On their arrival at Doylestown the trunk was gone, and from the evidence it would seem to have been stolen.</p> <p>1. The plaintiff, Ci'ane, was offered to prove the contents of his trunk, and the value of the articles composing them. The defendants objected on the ground of interest, but the court overruled the objection and admitted the witness, and the defendants excepted.</p> <p>2. The plaintiff read á? subpoena for Owen Rice to appear and testify, with an ex parte affidavit endorsed thereon as to the service of the same, and offered in evidence the deposition of Rice, taken under a rule of court. The defendants objected to this evidence, 1. Because the ex parte affidavit of service of the subpoena was not sufficient. 2. That Rice was living at the Crane Iron Works, only 16 miles from Easton (place of trial), and that due diligence had not been used to procure his attendance. The court overruled the objections, and admitted the deposition to be read, and the defendants excepted.</p> <p>Several agents of the defendants testified that in 1838 they had put up the handbills of the defendants in all the taverns and stage-offices in Easton, and distributed them throughout all the routes. They were also posted up in the stage-office of the defendants in Philadelphia, upon the side of the wall, up against the wall fairly, so that any one coming in might see them. Some parts were in large type, some in small. That, shortly before the trial, in April 1844, they had searched for these bills in the present office of the defendants in Philadelphia, but could not find them. The old office was then occupied as a fancy dry-goods store. They had also searched for them at Easton without success.</p> <p>3. The defendants then offered to prove by witnesses the contents of handbills put up in 1838, and that they contained a distinct notification, in conspicuous characters, that “ all baggage was at the risk of the owners.” The plaintiff objected to this evidence; the court overruled it, and the defendants excepted.</p> <p>4. The defendants then offered to prove by witnesses, who travelled in the said line of stages before and about the time of the alleged loss of the plaintiff’s trunk, the fact of such handbills being up at divers places on the route, and at Philadelphia and Easton, containing the notification above stated — “ all baggage at the risk of the owners” — and that it was notorious to all persons passing and repassing in the stages. The plaintiff objected; the court rejected the evidence, and the defendants excepted.</p> <p>5. The defendants then offered to prove by witnesses the usual manner in which the names of the passengers in this line of stages were entered, and the passengers called, to wit: “ that the passengers called at the stage-office, and had their names registered in the stage-book, with the places mentioned in the margin where they were to be called for.” The plaintiff objected; the court overruled the evidence, and the defendants excepted.</p> <p>6. The defendants then again offered to prove the matters contained in the 3d and 4th bills of exception. The plaintiff objected; the court overruled the evidence, and the defendants excepted.</p> <p>The defendants requested the court to charge “ that the plaintiff’s own oath as to the quantity and value of the contents of the trunk is insufficient, alone, to satisfy the jury of that value.” Answer. The plaintiff’s own oath is evidence as to the quantity and value of the articles in the trunk. It is not conclusive evidence. The quantity and value are facts for your decision, and if there is nothing in the case which makes you distrust the truth of the plaintiff’s own oath, it would be sufficient alone to satisfy you both as to the quantity and value of the contents of the trunk.</p> <p>Errors assigned:</p> <p>1. In receiving the evidence mentioned in the 1st bill of exceptions.</p> <p>2. In admitting the deposition of Rice.</p> <p>3. In rejecting the evidence mentioned in the 3d, 4th, 5th and 6th bills of exception.</p> <p>4. In their answer to defendants’ point.</p>

<p>Since the Act of 29th March 1832, the Supreme Court have no power to take bail on appeal from the Orphans’ Court. This power is vested exclusively in the latter court.</p>

<p>In a suit against a physician for malpractice whereby the plaintiff lost his leg, Held,</p> <p>1. It being shown that other medical men had been called in for a consultation without invitation or notice to the defendant, a medical witness for the plaintiff might be asked by the defendant as to the practice of physicians in regard to consultations.</p> <p>2. The witness could not be asked as to the measure of the defendant’s responsibility for his patient, not being a subject of professional skill.</p> <p>3. Nor is testimony admissible on the part of the defendant as to his general skill.</p> <p>4. The nature and properties of the powders employed by the defendant in the case, were proper questions to medical witnesses called by the plaintiff.</p> <p>5. The declarations of a proehein amy for the plaintiff made before the writ purchased, are not admissible on behalf of the defendant.</p>

<p>A plaintiff who is nonsuited after an appeal by the defendant from an award of arbitrators, must refund the costs of the appeal which the defendant had paid on appealing; and that is the case, although the plaintiff sues as administrator.</p>

THIS was an appeal by Pancoast and Snyder, judgment creditors of T. J. Willits, from the decree of the District Court for the city and county of Philadelphia, allowing B. Tevis and others arrears of ground-rent and interest out of the proceeds of the sheriff’s sale of certain real estate under a judgment of the Western Bank against Willits.

The following entries appeared on the docket: Now, February 14th, 1844, the' court order and direct that the Honourable James Campbell, Associate Judge of said court, shall hold the Court of Oyer and Terminer and General Jail Delivery and Quarter Sessions of the Peace of the city and county of Philadelphia, for the trial of indictment and all other cases for the ensuing Term of March 1844. March Term, 1844. Monday, March 4th, 1844. The court met.

The property levied on and sold on the 24th October 1839, consisted of machinery, &c., formerly the property of Robert W. Richardson & Co., a firm composed of Robert W. Richardson, Samuel R. Wood and Richard Blundin, and used by them in their factory at Manayunk, all the partners being equally interested therein.

<p>ERROR to the Common Pleas of Northampton county.</p> <p>This was an action of debt brought on the 22d July 1842, by Henry Kraemer, administrator of Henry Kraemer, deceased, against Joseph Unangst, to recover $390.76, the principal sum of the dower of the widow of the plaintiff’s intestate. The declaration stated that the plaintiff’s intestate died about the 1st February 1795, seised of a tract of land, &c., which was afterwards sold under an order of the Orphans’ Court, subject to a charge of one-third of the purchase money for the use of the widow, and that a deed for it, dated 15th July 1815, was given by Henry Kraemer, the administrator, to John King, who on 26th August 1815 conveyed to Nicholas Kraemer, who on the 3d April 1816 conveyed-to Mathias Gress, who conveyed to Joseph. Unangst, September 9, 1816. That Unangst and those from whom he claims took the premises subject to the payment of $390.76 to said administrator on the death of the widow, and also to the sum of $23.54 payable to the widow annually during her life. That when John King received his deed, to wit: 15th July 1815, he made his bond in the penal sum of $781.50, conditioned for payment of $390.76 at and immediately after the decease of the widow, together with the interest on the same, to the said Henry Kraemer, administrator. That when Nicholas Kraemer bought: viz. August 26th 1815, he made his bond in the same sums, and payable in the same way, and which said last bond was transferred to the administrator in lieu of the bond received from King, and of all which Unangst and Gress had notice. That the widow died on or about August 1st 1827, when the said sum of $390.76 became payable by Unangst.</p> <p>The second count stated that the defendant, on the 1st July 1842, was also indebted to said administrator in the sum of $781.50, for interest upon and for forbearance of large sums lent and advanced to him by the said administrator, and that none of these monies had been paid, although often requested, etc., and made profert of letters of administration.</p> <p>The defendant pleaded payment with leave, &c., and gave the following notice of special matter; “ That the defendant will offer evidence to prove that Henry Kraemer, the elder, was not seised in his demesne as of fee in the premises mentioned in the plaintiff’s declaration, and that the said intestate in fact had no lawful title thereto. That he does not claim the premises mentioned and described in the plaintiff’s declaration, by, from or through the said intestate, but by a title altogether independent of the said Henry Kraemer and derived from the proprietaries of Pennsylvania or their legal representatives.”</p> <p>From the record evidence given by the plaintiff, it appeared that Henry Kraemer, the intestate, died in 1795, seised of a tract of land in Bethlehem township, Northampton county, subject to the payment of the purchase money due to the proprietaries, being part of the manor of Fermor. He left a widow and seven children. On petition of one of the heirs, the Orphans’ Court on the 21st January 1814 awarded an inquest, which on the 22d April following was returned and confirmed, finding that the premises could not be divided, and appraising the same at $1133.20. On the 19th August following, a rule was granted on the heirs to accept or refuse, &c., returnable at the next term. On the 21st January 1815 the rule, not having yet been served, was enlarged to the 4th February following, when proof of service of the rule personally on all the heirs being made by the petitioner, the court awarded an order of sale to take place on the 11th March following, one-third of the purchase money to be paid at the confirmation of sale, one-third in one year thereafter with interest, and one-third (remainder) to remain charged on the premises for the use of the widow. On the 21st April following, the administrator reported that on the 11th March then past he had sold the premises to John King for $1172.29 on the terms and conditions prescribed by the court. This sale was confirmed same day.</p> <p>The plaintiff produced a deed for the premises from Nicholas Kraemer to Mathias Gress, dated April 3d 1816. Also a deed dated September 9th 1816 from Mathias Gress to Joseph Unangst, endorsed on the deed from Kraemer to Gress, subject to the payment of the original purchase money to the proprietaries, and reciting that Henry Kraemer had conveyed to John King, who by deed poll, dated August. 26th 1815, had conveyed to Nicholas Kraemer.</p> <p>1. The plaintiff offered in evidence a bond, dated August 26th 1815, from Nicholas Kraemer to John King, for the sum of §390.76, payable at the death of the widow of Henry Kraemer, deceased, with interest payable annually; after having proved the handwriting of Mathias Gi’ess as a witness to the bond, and that Gress was dead.</p> <p>The defendant objected to this offer, but the court admitted the bond and sealed an exception.</p> <p>The plaintiff proved that the intestate’s widow died on the 22d July 1822.</p> <p>The plaintiff called a witness, who testified that he knew that Kraemer owned the tract in question, and that Unangst bought it, as much as he knew, of Mathias Gress. Witness hauled 1000 rails, and Unangst said he was hauling these rails, and he" did not know if it was his.</p> <p>2. The witness was then offered to prove that Unangst said there was a dower in the land, to which the defendant objected, but the court ovez-ruled the objection and the defendant excepted.</p> <p>The witness then statéd that this conversation took place at the time Gress owned the land — before Unangst owned it. The evidence was afterwards excluded by the court.</p> <p>The plaintiff then called Solomon Kraemer, who testified as follows: — “About the 16th June 1842 I went with my father (the plaintiff) to Joseph Unangst. Unangst, came to the door and they went into the house, and after some time came out again. Unangst, and my father came down to the fence and there they parted. My fatlzer asked Unangst ‘ about the middle of August ?’ Unangst answered ‘ yes.’ I called on Unangst about the 29th June the same year, at my father’s request. I asked him, * did you promise my father to come to settle about the middle of August?’ He answered ‘yes.’ I told him that was a bad time, it would then pass over the 20 years. I asked him, ‘ will you pay a small sum on the dowry and acknowledge the debt, and then make your own time to settle ?’ He said, ‘ if you and your father won’t trust me.’ I said, ‘ we do trust you.’ He said, ‘ I don’t know any thing of 20 years; I thought a dowry was always good.’ I said ‘ I tlzoüght so too, but judgments run out in 20 years ; I had been to Easton to inquire about Kreidler’s debt and also about this.’ He asked me, ‘one share is coming to your father?’ I replied, ‘ my father holds the bond, is administrator, and the bond, it must be paid to him.’ He said he paid Nicholas and had taken a release from him. I asked him, ‘ young Nicholas ?’ He replied, ‘ Conrad’s son.’ I said * he had no right, it must be paid to my father/ We parted. Then I asked him, ‘ about the middle of August you will come to settle?’ He replied ‘ yes, perhaps sooner, the first of August.’ We parted then.”</p> <p>3. The plaintiff then offered to prove by a witness that the defendant paid this money to young Nicholas Kraemer, son of Conrad. The defendant objected, but the court overruled the objection and sealed an exception.</p> <p>The witness then stated that three or four years previously Unangst paid Nicholas Kraemer; the son of Conrad, in the neighbourhood of «$40; that Nicholas took it, signed and gave a release, and asked if it was right, and Unangst said yes. Nothing was said what it was for, when they were together.</p> <p>4. The defendant then called a witness, who testified that the knowledge he had of the death of the intestate’s widow was from a tomb-board erected. The defendant offered to prove by him that on her tomb-board she was stated to have died on the 20th July 1822; that the board had rotted away. The plaintiff objected, and the court rejected the evidence and sealed an exception. ,</p> <p>5'. The defendant then offered to prove that at the last trial of this cause the plaintiff alleged and proved that the intestate’s widow died on the 20th July 1822. The plaintiff objected, the court sustained the objection, and the defendant excepted.</p> <p>A witness for defendant testified as follows: — “Henry Krae mer was examined in a suit by me against Regina Kraemer in 1819. I claimed as purchaser at a sheriff’s sale as the property of Nicholas Kraemer; it was a 2J acre lot in Hecktown where the widow died. He testified that Nicholas Kraemer gave Regina that lot for keeping the old lady, the widow of Henry Kraemer, deceased.” Cross-examined, “ I did, as administrator of Elizabeth Kraemer, bring suit to recover the arrears of dower.”</p> <p>6. The defendant then offered in evidence a deed dated 19th January 1818 from the proprietaries to Joseph Unangst for the land in question. The plaintiff objected, the court sustained his objection, and the defendant excepted.</p> <p>The court charged the jury as follows: — The Orphans’ Court sale transferred the decedent’s right in the land to King; for this right he agreed to pay $1172.29. By the order of the court the one-third of this sum was to remain charged upon the land until the widow’s death. She died the 21st or 22d July 1822. The widow was entitled to the interest on this sum during her life. This sum was a lien on the land in the hands of King. It was made a lien by law. This lien would continue against his grantees until it was paid by the parties or discharged either by them or by operation of law. Has this sum been paid ? There is no proof of actual payment. Has it been discharged by lapse of time? Twenty years delay in this case, if unaccounted for, would entitle the defendant to a verdict. This is a rule of law established as being necessary to the peace of society and the security of individuals. No one is permitted to let his claim rest until it has become obscured with uncertainty. It is then too late for fair inquiry. Justice cannot then be done, parties may be dead, witnesses may be gone or dead, memory may fail or prove treacherous, papers may be lost, vouchers may be given up or destroyed. If the 20 years have not elapsed, it is incumbent on the defendant to make out his defence by proof; then something is requisite on his part with the length of time to make out his case. If the 20 years have elapsed, this would be a good defence, and then it throws the proof necessary to remove it upon the plaintiff Here the defendant lived on the land; he was at all times able to pay this debt. The land was always good for it. The plaintiff lived near him; why then all this delay if the debt was justly due? The bond of King has not been shown; where is it ? It may have been paid; if so, how and when and by whom and under what circumstances, might be of importance if it had been shown. Has a demand been made within the 20 years ? If it has, this might satisfy you. An acknowledgment of the debt no doubt would. What then has been proved by the witness Kraemer ? Does it amount to a demand of this debt ? This is a fact for you to decide. If it does, it would rebut the presumption of payment. Does this witness prove an acknowledgment of the debt ? If he does, this would rebut the presumption of payment.</p> <p>The defendants have requested us to charge you:</p> <p>1. This suit is brought wrong. The proper parties are not brought into court. Answer. The suit is correctly brought. The proper parties are brought into court. The sale was made by the administrator. The promise to pay was made to him. The suit was therefore properly brought in his name.</p> <p>2. There is no evidence that Joseph Unangst ever took upon himself the payment of the sum claimed in this suit. Answer. This point in point of fact is true. The money was charged upon the land. It is the land that stands charged with the debt. This suit is to recover this money out of the land. The defendant is not personally a debtor, nor will this suit make him personally liable. The suit is therefore rightly brought against him; and if the debt has not been discharged by payments, presumed from the circumstances or lapse of time or both or by actual payment, the plaintiff is entitled to a verdict, which would only charge the land in the defendant’s hands.</p> <p>3. The Orphans’ Court was not warranted by law to grant the order of sale, because the rule on the heirs was not served for 20 days, and because there was no security given by the administrator. Answer. Neither reason will avail the defendant. Those objections cannot now defeat the payment of the’money. In these .things he has no concern. He has held the land-for more than 20 years. We do not give our assent to this point. If it be law, then defendant would hold the land, and it not paid for.</p> <p>4. That if the debt were due, Kenry Kraemer cannot recover in his capacity of administrator; it would be due to the heirs and legal representatives of Henry Kraemer the elder deceased. Answer. We refuse to charge as requested on this point.</p> <p>5. That if the widow even died on the 22d July 1822 and this suit was brought on the 22d July 1842, the legal presumption of payment would arise, unless repelled by evidence. Answer. The computation is to be made from the time the money became due. It might then have been demanded ; it might have been demanded on the 22d July 1822, and therefore the 20 years would expire on the 21st July 1842. This would complete the legal presumption of payment and will entitle the defendant to a verdict, unless the presumption has been repelled by the evidence given on the part of the plaintiff. To this point therefore the court give their assent.</p> <p>6. The sum claimed was not a lien on the land in the hands of Joseph Unangst. Answer. It was made a lien by the law and the order of the court. This lien adhered to the land into whomsoever it passed by grant from the purchaser at the sale, until paid or discharged by the parties or by operation of law.</p> <p>The defendant and plaintiff objected to the charge.</p> <p>The plaintiff requested the court to charge the jury :</p> <p>1. By the pleadings in this case the defendant admits that he took the land subject to the charge of one-third of the sum of $1172.29, and is confined to proof of payment made subsequent to his purchase from Gress. Answer. He may show it is paid in fact or discharged by lapse of time. The rest agreed to.</p> <p>2. That if the 20 years had not elapsed when this suit was brought, and if one day were wanting to complete the time, the jury have no right to presume payment without some evidence on the part of defendant, tending to prove payment. Answer. This is correct.</p> <p>3. That this suit having been brought within 20 years, and defendant having given no evidence of payment, the jury are bound to presume the debt unpaid. Answer. This is not assented to.</p> <p>4. If the 20 years have expired before suit brought, the evidence of Solomon Kraemer (if believed by the jury) is sufficient to rebut the presumption of payment. Answer. This must be determined from this evidence, with all other circumstances in the case.</p> <p>Errors assigned:</p> <p>1. The court erred in admitting the evidence mentioned in the 1st, 2d and 3d bills of exception.</p> <p>2. In rejecting the evidence mentioned in the 4th, 5th and 6th bills of exception.</p> <p>3. In their answers to the defendant’s 1st, 2d, 3d, 4th and 6th points.</p> <p>4. In their answers to the-plaintiff’s 1st and 4th points.</p>

<p>Where goods are sold by a factor here for a principal abroad, and the factor dies before payment, his authority is revoked, and a payment to his administrator by the purchaser is a mispayment.</p> <p>If such administrator receives the money, it ought not to be involved in his accounts in the settlement of the intestate’s estate, either as general or special assets, nor can the Orphans’ Court or the Supreme Court on appeal make any order in favour of the principal on such settlement of accounts.</p> <p>Money so received by the administrator is trust estate and can be followed in his hands or those of his representatives only by a bill in equity or perhaps here by an action for money had and received.</p>

THIS was an appeal from the decree of the Common Pleas of Chester county, awarding to the estate of Elisha Phipps $500 for one year’s rent, out of the balance in the hands of Alexander Mode and Ellis Phipps, assignees of William Steadman, deceased, on a settlement of the account of their trust, by Thomas Vandever, one of the preferred creditors under the assignment.

THIS was an action of ejectmént instituted in the District Court for the city and county of Philadelphia, by Francis Duffy against The Mechanics’ and Tradesmens* Insurance Company, John Rankin and others, to recover possession of certain real estate. Michael Fox died on the 13th July 1838, intestate, without widow, leaving issue four children, one of whom, Margaretta, married Woodburn Potter. He was seised at his death of certain real estate, and partition was made thereof.

<p>ERROR to the District Court for the city and county of Philadelphia, where a verdict and judgment were rendered for the defendant below.</p> <p>Trespass quare clausum fregit brought by Robert E. Jones against Oliver S. Janney. The locus in quo was a strip of flats on the river Delaware in Moyamensing in front of land, part of Greenwich island, owned by the defendant. The acts constituting the trespass were proved and admitted, and the question was on the title.</p> <p>Both parties claimed under William Jones. The plaintiff, Robert E. Jones, was his son; the defendant was his grandchild by Mary Jones, who married -Janney. The title of William Jones was as follows: By deed dated 20th October 1758, Thomas .and Richard Penn, proprietaries of Pennsylvania, appointed Rich.ard Peters and Richard Hockley their attorneys to enter into agreements and contract with any person for the sale and conveyance of the fee-simple and inheritance of the whole or any part of all and every our marsh lands or cripple or swamp grounds situate, lying and being on or near to the-of Delaware river, and in the townships of Moyamensing and Passyunk or one of them, in the county of Philadelphia, containing in the whole by estimation 600 acres, — and to execute deeds, &c. at not less than ten pounds Pennsylvania currency per acre.</p> <p>In pursuance of these powers, Richard Peters and Richard Hockley on the 28th February 1759, contracted with William Jones and Edward Croston, in consideration of £2000 sterling paid and money to be paid, to convey to them in fee as tenants in common all the vacant and unimproved marsh, cripple and swamp situate below the Greenwich Point ferry-house, &c., bounded by the river Delaware to the south-east, by Joseph Lowndes’s marsh to the south-west, by Hay Creek and the improved meadows of Edward Shippen, Esq. and Company to the north-west, and by the marsh or meadows of Stephen Pascal and Andrew Bankson to the north-east, computed to be 600 acres or thereabouts. It was covenanted that the premises should be surveyed by the Surveyor-General, Mr C. Scull, and all the marsh, swamp and cripple, it was practicable to bank in and improve, should be included in the survey. “ And further, that all the flats which shall be left out of the survey and intended outline banks are to remain the sole property of the said Thomas and Richard Penn and their heirs, and are not intended to be included in the said purchase. But that when the said proprietaries or their heirs shall be inclined to sell and dispose of such flats without the said intended outline banks and survey-aforesaid, the said William Jones and Edward Croston and their heirs and assigns, are to have the preference in the purchase thereof, they paying for the same as much as other persons who may be willing to become purchasers thereof, and in the mean time that full liberty and privilege is and shall be reserved for all the necessary drains, sluices and watercourses that the said William Jones and Edward Croston, their heirs and assigns, shall want to pass and empty themselves through the said flats into the river.” On the 24th September 1759, a deed was made for 546f acres on the same terms, bounded as follows: “ beginning at a corner post on the south side of Hay Creek, being a corner of Stephen Pascal’s ground, thence by the said Stephen Pascal’s ground and ground of Andrew Bankson south 8 degrees 20 minutes east 234 perches to a cedar post put for a corner, thence by the flats on Delaware river (not included in' this survey) the four courses and distances next following, &c.,” together with all mines, minerals, quarries, meadows, marshes, savannahs, swamps, cripples, woods, underwoods, timber and trees, ways, (particularly a certain lane) waters, watercourses, liberties, profits, commodities, advantages, hereditaments and appurtenances whatsoever, to the paid hereby granted, &c. 546J acres of swamp, marsh and cripple, belonging, &c., and also full and free liberty and privilege for all the drains, sluices and watercourses, as before.</p> <p>On the 10th May 1766, William Jones procured a survey to be made and returned by the Surveyor-General of 50 acres and allowance of cripple and flats in Moyamensing township, situate in front of William Jones’s meadows, part of Greenwich island, in pursuance of a warrant bearing date the 27th March 1755, granted to Thomas Preston for 1504 acres in any part of the province purchased of the Indians, being part of the original purchase of George Palmer, deceased; 100 acres part of said 1504 acres, the said Thomas Preston and Sarah his wife, by indenture bearing date the 24th day of November 1755, did grant and convey unto Enoch Elliott of Derby in the county of Chester, and the above-named William Jones then of Kingsess in the county of Philadelphia, in fee as tenants in common.</p> <p>In 1761 a division took place between William Jones and Edward Croston, by which that part of the tract conveyed to them by the proprietaries which was nearest the river Delaware was assigned to William Jones, and the other part inland to Edward Croston.</p> <p>On the 15th December 1766, William Jones made a deed of settlement of real estate on his son Mathew Jones, and Mary and Elizabeth Jones his two daughters, conveying it to trustees for their respective uses. Mathew’s portion consisted of tracts of land in the township of Kingsessing in the county of Philadelphia, that is to say, 172 acres 86 perches of upland — 117 acres of marsh, one boundary of which was “ to a stake by the river Schuylkill, thence by the said river” — 7 acres of meadow, and-one moiety and three-eighths of the other moiety of 5 acres of meádów — 4 acres and 16 perches of marsh or meadow, part of which' was described as bounded by Land’s creek. On Mary and Elizabeth he settled each one half of his tract of 273 acres 60 perches in Moyamensing (being his half of the lands purchased of the proprietaries), described as follows: “ All that piece or parcél of marsh or new-made meadow ground situate in Moyamensing township in the said county of Philadelphia, in the district called Greenwich Island, &c., beginning at a post for a corner as well of this and the late Edward Croston’s marsh as of the said Stephen Pascal’s and Aridrew Bankson’s meadow ground, thence running by the said Andrew Bankson’s south 8 degrees 20 minutes east 107 perches to a post on the edge of the flats on the river Delaware, thence running by and upon the said flats south 70 degrees, west 176 perches, &c.” He also settled on Mathew 30-J- acres and 55 perches in Moyamensing called Garlick Hall — and also a lot near it containing 3|- acres and 25 perches. The deed in the conveying part to the trustees, after describing all the above, contained this clause, “together with all houses, outhouses, edifices, buildings, woods, underwoods, timber and trees, meadows, marshes, savannahs, swamps, 'cripples, flats, mines, minerals, ways and waters, watercourses, liberties, easements, privileges, profits, commodities, advantages, hereditaments and appurtenances, to the said premises severally and respectively belonging or in anywise appertaining, &c.” To this deed of settlement was added a power of revocation by deed or will.</p> <p>In 1799 William Jones made his will, in which he confirmed his deed of settlement, and gave to Robert (the plaintiff), born since, a messuage in Southwark, and to Mathew half of 54 acres and 60 perches of meadow in Kingsessing, he paying theréout to Robert £800. “ And whereas I did some years past with my own proper monies, erect, build and finish on a lot of ground, the property of my former deceased wife, a large three-story brick house, situate on the south side of .High street, between Fifth and Sixth streets from the Delaware, and nearly adjoining the house I live in; and whereas since the death of my said wife, her two sons William and Joseph Gray have by their deed conveyed to my said son Robert the above-described lot — now I do give and devise the said three-story brick house, together with all the rest, residue and remainder of my real estate, whatsoever or wheresoever, to him my said son Robert, his heirs and assigns, for ever.” He further gave £1000 to William, son of Robert, and the rest of his personal estate to Robert. He afterwards declares the share of Elizabeth to be for her separate use; and by a codicil dated November 6, 1802, settles her share in trustees for that purpose. By a further codicil dated November 19,1802, he annuls the legacy to William of £1000, gives him £500, and £500 between Mary and Elizabeth. The will was proved December 8, 1802.</p> <p>The court below charged the jury as follows: —</p> <p>It is conceded by the plaintiff that if William Jones had no title on the 10th May 1766, this suit must fail. It is conceded also that if he had title' and legally disposed of it in his lifetime, the suit must fail. Now I assume for all the purposes of settling this controversy, that which both plaintiff and defendant say is-true, to wit, that on the 10th May 1766, William Jones had title. If he had any doubt about his title, independent of the survey of the 10th May 1766, he seems to have considered that such survey removed the difficulty. What the parties say now for him, he may be presumed to have asserted for himself at that time. With this title, then, and his knowledge of it, he, on the 15th December 1766, makes a deed of settlement on some of his children. He owned the fast land or meadow clearly by virtue of his deed of 24th September 1759. He owned the flats in front of that meadow. The flats, but for the reservation in the deed of the 24th September 1759, would have passed with the meadow. He was, as both parties now before us assert, free from the effect of that reservation, and his title went to low-water mark. Now the point of the case is reached: by a conveyance of the meadow running to the bank, which bank was the high-water mark, the flats and everything to low-water mark would pass also.</p> <p>But even if this were not clear, a conveyance of the meadow land, together with the flats belonging or in anywise appertaining thereto, would indubitably carry the flats in question. The suggestion that such a conveyance must be limited by the metes and bounds of the meadow land, as they alone are set out in the deed, is to strike out the word ‘ flats ’ altogether, and the clause of which it is a part. From the character of this property, a conveyance of the meadow by metes and bounds together with the flats to said meadow belonging, the said meadow being bounded by a bank; the bank being the dividing line between the meadow and the Delaware river; the flats, too, belonging, without dispute, to the owner of the meadow, no matter whether by the same title or another title — such a conveyance would clearly carry the flats. Then the application of this principle is clear.</p> <p>[The Judge then read parts of deed of trust, particularly the statement of the parties — the description of the meadow land, as copied from the deed of the 24th September 1759, and the following clause:</p> <p>“ Together with all houses, outhouses, edifices, buildings, woods, underwoods, timber and trees, meadows; marshes, savannahs, swamps, cripples, flats, mines, minerals, ways and waters, watercourses, liberties, easements, privileges, profits, commodities, advantages, hereditaments and appurtenances to the said premises severally and respectively belonging, or in anywise appertaining, and the reversions and reversionary rents, issues, and profits thereof and of every part thereof,” and then proceeded]—</p> <p>The result is, that the title to the flats passed by the deed; and the defendant is entitled on this ground to a verdict.</p> <p>But I have said that this is deciding the case according to William Jones’s declared understanding of his own rights, and is executing the purposes of his last will and testament. By the deed of settlement he spoke of the flats; and he could hardly be supposed to be under the impression that by some legal construction of his deed, the flats which he said should pass, would not pass. He seems to have lived and died in the belief that the flats passed according to his language expressed in a formal deed. By his will made in 1799, upwards of thirty years after the deed of settlement, he refers to that deed and establishes, ratifies and confirms it. By this reference and ratification, he again recognises the right of such of his family as held this meadow to the flats also. He disposes of sundry pieces of real estate not embraced in the deed of settlement, giving to his son Robert, the present plaintiff, a house and lot in Front street between Shippen and Almond streets; confirms his right to a house built by the testator on a lot of the plaintiff’s mother, the title to which lot had vested in the plaintiff; and then devises to him in fee all the residue of his real estate. Now it seems to me, that to hold that the flats now in dispute are a part of the residuary estate of William Jones, would be to violate his own very carefully expressed disposition of his property as solemnly and deliberately ratified by his last will.</p> <p>It is hardly necessary to add anything on the subject of the plaintiff’s possession. It is not pretended that he had actual possession further than was held by him while he was erecting the shed, and while the shed remained as the alleged representative of his possession. Before 1840, he does not assert any possession except that which follows the right: as he had not the right, of course he had not the possession. The suit must then fail on this ground also.</p> <p>As to the defendant’s possession of the flats, it is as complete in a legal sense as his possession of the meadow land. The possession of the flats has gone with the possession of the meadow ever since the deed of 1766; whether it did also before that time it is useless to inquire.</p> <p>The plaintiff excepted to the charge.</p> <p>Errors assigned:</p> <p>1. The court erred in stating to the jury, that by a conveyance of the meadow running to the bank, which bank was high-water mark, the flats and evei’ything to low-water mark would pass also.</p> <p>2. And also; but even if this was not clear, a conveyance of the meadow land, together with the flats belonging or in anywise appertaining thereto, would undoubtedly carry the flats in question.</p> <p>3. In stating that the suggestion that such a conveyance must be limited by the metes and bounds of the meadow land, as they alone are set out in the deed, is to strike out the word ‘ flats’ altogether and the clause of which it is a part.</p> <p>4. In staling, that from the character of this property, a conveyance of the meadow by metes and bounds with the flats to the said meadow belonging, the said meadow being bounded by a bank — the bank being the dividing line between the meadow and the Delaware river; the flats too, belonging without dispute to the owner of the meadow, no matter whether by the same title — such a conveyance would clearly carry the flats.</p> <p>5. The court erred in the construction given to the deeds read in evidence, and to the deed of trust so called, and in charging that the title to the flats passed by the deed and that the defendant is entitled on this ground to a verdict.</p> <p>6. In stating that the foregoing opinion is deciding the case according to William Jones’s declared understanding of his own rights, and is executing the purposes of his last will and testament.</p> <p>7. In stating that William Jones seems to have lived and died in the belief that the flats passed according to his language expressed in a formal deed.</p> <p>8. In stating that William Jones by his will again recognised the right of such of his family as held his meadow, to the flats also.</p> <p>9. In charging the jury that the flats in dispute were not a part of the residuary estate of William Jones, and did not pass to the plaintiff under the will.</p> <p>10. In not answering the plaintiff’s points.</p>

<p>THIS was an appeal by the Commissioners of The District of Spring Garden from the decree of the District Court for the city and county of Philadelphia, confirming the following report of an auditor, awarding the proceeds of sheriff’s sale of the real estate of Peter V. Weaver, to John H. Cavender and George Schryer:</p> <p>“ John H. Cavender claims arrears of ground rent as assignee of Barclay Haines, who assigned the real estate, sold under the execution in this case, to the Norristown and Valley Railroad Company, the 9th May 1836, reserving an annual ground-rent of $117.25 to Barclay Haines, his heirs and assigns. Under a writ of jfieri facias, tested 6th March 1841, Daniel Fitler then High Sheriff of the county of Philadelphia, made sale of the real estate in question, as the land of the Norristown and Valley Railroad Company, to Peter V. Weaver, the defendant in this execution, and conveyed the same to him by deed executed and acknowledged 15th May 1841, subject to the same ground-rent. After-wards, on the 21st December 1841, Barclay Haines, the original owner of the ground-rent, conveyed the same to John Cavender, who claims as arrears of rent $175.86.</p> <p>The Commissioners of Spring Garden claim $205.66, including interest and commissions, for paving and curbing in October 1837 and December 1836. This amount they ask to be paid first out of the fund. The validity of this, claim as a lieu on the property is denied on two grounds: 1. .That it is barred by the Statute of Limitations. 2. That it was devested by the sheriff’s sale to Peter V. Weaver in 1841, several years subsequent to the paving and curbing in question.</p> <p>As to the first of these objections, that the lien is devested by the operation of the Statute of Limitations, the auditor is of opinion that the statute has no effect upon the lien. In Knorr v. Elliot, (5 Serg. & Rawle 49), the Supreme Court decided that a mechanic’s lien did not expire in five years like that of a judgment, inasmuch as the act then in force creating the lien affixed no limit to its existence in point of time. The principle in this case rules this point.</p> <p>As to the second objection to the claim of the district of Spring Garden, the auditor is of opinion that it was devested by the subsequent sheriff’s sale. The curbing was done in 1836 and the paving in 1837, while the property was in the possession of the Norristown and Valley Railroad. It was not until 1841 that the property was seized under execution and sold by the sheriff to Weaver. The ground rent under which Cavender claims, was created before the curbing and paving were done by the district, that is on the 9th May 1836. The arrears claimed fell due May 1 and November 1,1842, and May 1, 1843. The Act of 3d March 1818, provides that the real estate in the district of Spring Garden shall be subject to payment of debts thereafter contracted by the commissioners of the district for work done or materials furnished for or in pitching, curbing and paving any street, &c. in front of said real estate, before any lien thereafter created. It follows then that until the sheriff’s sale in 1841 the lien of the commissioners had preference over the ground rent, though the rent was created before the paving and curbing were done.</p> <p>Then the question follows, whether the sheriff’s sale in 1841 subject to the ground rent devested the lien of the district. This wili be considered, first as a general question, and secondly under the circumstances of this case. A long series of decisions in the courts of Pennsylvania establishes the general rule that a sale under execution by the sheriff devests all liens definite and certain in their amount, and that the lien creditor who omits to claim out of the proceeds of sale loses his resort to the land. Custer v. Detterer, (3 Watts & Serg. 28). The question then arises whether the Acts of 3d March 1818 and 16th April 1840, which latter provides for the filing in the District Court and Common Pleas all claims due the commissioners and inhabitants of the incorporated districts of the county of Philadelphia for paving, curbing, &c., preserve the lien notwithstanding a subsequent sale under execution. The Act of 3d March 1818, simply gives the lien, but is silent as to its duration. The Act of 1840, after providing for the filing of the claim on record, proceeds to say “ which said claim shall remain a lien from the time the debt was contracted and became due &c. until the same be fully paid and satisfied.” The object of the 9th and 10th sections of the Act of 1840, was mainly to give the district a mode of enforcing the payment of their claim. But it was evidently also the intention of the Legislature, in accordance with their uniform policy, to place all liens upon real estate on record, that purchasers may have it in their power to ascertain clearly what incumbrances are binding on the property they are about to purchase. The clause declaring that the claim shall remain a lien upon the land until fully paid, refers to claims filed of record. The claim made before the auditor has not been filed of record anywhere, and must be governed by the Act of 1818, which is silent as to the duration of the lien.</p> <p>But if it were otherwise it cannot be supposed that the Legislature, in opposition to the established policy of Pennsylvania to give a clear title to purchasers at sheriff’s sale and thus encourage competition, intended to preserve the lien. Notwithstanding the neglect or refusal of the district to make its claim at the proper time upon the proceeds of a former sale, if the Act is to be thus construed, the Legislature has not only not protected the public interests, but holds out an encouragement to the authorities of the districts to neglect their duty. The lien being unlimited in its duration, such a construction would result in great injustice to purchasers at sheriff’s sales, who would naturally suppose that the authorities of the district had attended to their duty by making their claim upon the fund raised by a previous sheriff’s sale, and not extend their searches beyond that time. The adjudged cases lay down the rule broadly that all liens, except certain ones expressly excepted by the Legislature or former decisions, are devested by a sheriff’s sale. The auditor deems himself bound to consider the claim in question governed by the general rule until some express authority is shown to make it an exception.</p> <p>It was then contended that in this case the sheriff’s sale in 1841 was subject to the lien of the ground rent; that the lien of the district was prior to that of the ground rent, and that the second lien not being devested, the first could not be discharged by the sheriff’s sale. In point of time the lien of the district was subsequent to the creation of the ground rent. The arrears now claimed have become due not only since the lien of the district accrued, but also since the sheriff’s sale in 1841. The auditor does not deem it necessary to go into the question whether a sheriff’s sale subject to a second incumbrance is also necessarily subject to a previous one. The ground rent, subject to which the sale was made, was not an incumbrance or lien upon the interest of the Norristown and Valley Railroad, sold by the sheriff. It was a separate estate in the land which the sheriff could not sell under the writ in his hands. The estate or interest of the then defendants was in fact sold subject to no incumbrance whatever.</p> <p>A further point was made by the counsel for the commissioners of the district of Spring Garden, that the interest of the Norris-town and Valley Railroad was sold in 1841 under proceedings on a lien which was subsequent to the lien’of the district, and therefore could not devest that prior lien. The auditor has no difficulty under the decisions of the courts, in deciding against the commissioners on this point.”</p> <p>The auditor awarded to Cavender his arrears of ground rent, and the balance of the fund to George Schryer, the plaintiff in the execution, on account of his judgment. The court below confirmed the report. From their decree the commissioners of Spring Garden now appealed.</p>

<p>Under the Act of 3d February 1824, the taxes, rates and levies assessed on real estate in the city and county of Philadelphia, are a lien on such estate from the date of their assessment, and have priority to mortgages and other incumbrances charged on such estate prior to their assessment.</p> <p>A relinquishment of a distress made by a collector for taxes assessed under that Act, on the goods of a tenant lying on the premises charged with the tax, does not release the priority of the lien of the tax in favour of other lien creditors.</p> <p>It seems it would, if the goods were the property of the owner of the estate charged with the tax.</p> <p>Quaere, whether in the latter case, it would not entirely discharge the estate from the lien of the tax.</p> <p>The provisions of the Act of 3d February 1824 do not apply to State taxes assessed under the Act of 11th June 1840.</p>

<p>A fieri fiadas returnable first Monday in August was placed in the sheriff’s hands July 25th, and the defendant’s goods sold under it on the 12th October. It did not appear when the goods were seized. Held the presumption was that the seizure was made before the writ was returnable.</p> <p>It is not requisite that the sheriff should specify in his return to a fieri fiadas the particular goods taken, the sum for which each article sold, or the time of their seizure.</p>

<p>THIS was an action of ejectment, in which Jacob Levering was plaintiff and The Philadelphia, Germantown and Norristown Railroad Company defendants, for all that certain piece or parcel of land, situate, lying and being in the village of Manayunk, in Roxborough township, in the county of Philadelphia, beginning at a corner of land of Jacob Levering, and now or late of the Philadelphia, Germantown and Norristown Railroad Company, thence south 54° 30" west 82 feet 3 inches, &c., containing 63|- perches, more or less. The following case was stated as upon a special verdict at Nisi Prius in February 1844, before Mr Justice Kennedy, who thereupon gave judgment for the defendants.</p> <p>The premises described in the summons in ejectment are admitted to have been the property of the plaintiff before and on the 4th day of October 1834. On that day a petition was filed in the Court of Common Pleas of the county of Philadelphia by the Philadelphia, Germantown and Norristown Railroad Company, defendants in the above suit, praying the court to appoint six persons as viewers according to the provisions of the Acts of Assembly incorporating the said the Philadelphia, Germantown and Norris-town Railroad Company, passed 17th February 1831, and 8th February 1834, to examine and survey certain lands of Jacob Levering in the borough of Manayunk, over which the Norristown Railroad about to be constructed by the said Philadelphia, Germantown and Norristown Railroad Company was intended to pass, and report the damages according to law. Due notice having been given by the said Company to Jacob Levering to appoint viewers amicably in accordance with said petition, and the parties having been unable to agree on said appointment, six viewers were appointed by said court according to the Act of Assembly, who duly made their report into the office of .the Prothonotary of said court on the 12th day of November 1834.</p> <p>This report awarded to Jacob Levering the sum of $1222.16 as damages for the land viewed, embracing in said view two pieces of property, viz., one a property in Manayunk on the rear end of the hotel lot, and the other the premises described in the summons in ejectment in this suit. The plaintiff entered an appeal from said report and award to the Court of Common Pleas aforesaid to December Term 1834, according to the provisions of the Act of Assembly in such case made and provided. The Philadelphia, Germantown and Norristown Railroad Company having made tender of payment of the sum specified in the report of the viewers to the plaintiff, who refused to accept the same, before appealing from said report or award, proceeded to take and use the land of the plaintiff described in the survey of said road, which are the same premises claimed in said ejectment, and they or their trustees .still occupy and hold the same. A trial was had on said appeal and a verdict rendered for the plaintiff on the 27th April 1839, for the sum of $5161.65, and judgment duly entered on said verdict. The said Railroad Company had made and completed their road from Philadelphia to Norristown, and the said road had been used prior to the said verdict. A fieri facias was issued on said judgment, to which the sheriff (having received notice that the real and personal property of the defendants had been mortgaged some time previous to the rendition of said judgment to certain trustees to secure loans made by the Philadelphia, Germantown and Norristown Railroad Company under authority of law, and that the said trustees had taken possession of all the personal estate under the mortgage, and the management of said road, so as to receive the toll for the payment of the interest according to the terms of the mortgage), returned nulla bona. An alias fien fiadas was issued to September Term 1840, to which the sheriff also returned nulla bona (prout the whole record of the Common Pleas and the mortgages to said trustees and the exhibits attached under this statement of facts). The question submitted to the court is, is the plaintiff entitled to recover the premises claimed in this ejectment?</p> <p>If he is, then judgment to be entered for him; if not, then for defendants. The said case stated and judgment rendered thereon, to be subject to a writ of error or removal for revision by certificate to the Supreme Court in bank, agreeably to the provisions of the Act of Assembly of 26th July 1842, and the practice of the Court of Nisi Prius.</p> <p>The entry of judgment for the defendants was now assigned for error.</p>

<p>ERROR to the District Court for the city and county of Philadelphia.</p> <p>Trespass quare clausum fregit, brought by Lewis Roberts against William Wilcock, to recover damages from the defendant for trespassing, by himself and his agents, and with horses, carts, and carriages, upon the ground of said plaintiff, situate next to and adjoining a certain passage-way or alley of eight feet in width, leading from the rear end of defendant’s lot, on the east side of Second street, and communicating with another passage-way, running into Mead alley. The plaintiff was the owner of the ground on either side of the said two passage-ways, through their whole length; and both parties claimed under a certain John Kaighn, who being the owner, inter alia, of the ground now owned by the plaintiff and defendant respectively, conveyed to John Grover, by deed dated September 15th 1792, the premises now the property of the defendant. The grant by that deed to Grover was in the following words: “All that messuage or tenement, and lot or piece of ground, situate on the east side of Delaware Second street continued, heretofore called Moyamensing Road, in the district of Southwark, containing in breadth on said street 17-| feet, and at the east end, or rear of said lot, 16J feet, and in length or depth, east and west, 130 feet: bounded southward partly with ground sometime of Joseph Richardson, and partly with ground now or late of Robert Wood; eastward by the said John Kaighn’s remaining ground; northward by the messuage and lot late of Samuel Kaighn and since of Captain John Gardner, and westward by Second street aforesaid.” “Also, the right and privilege for the tenants and occupiers of the hereby granted premises, of a cartway and passage of eight feet wide at least, from the east end of the said hereby granted lot, over and along the said John Kaighn’s remaining ground, to and from the aforesaid cartway or passage, left open and extending over and along the said lot granted by the said Robert Wood to the said John Kaighn, into and from the said German street, (or Mead alley) agreeable to the plan and draft hereon endorsed, and free ingress, egress and regress into, through, out of, and along the same cartway, arch and passages, with and without horses, cattle, carts and carriages, at all seasonable hours and times hereafter, in common with the said John Kaighn, his heirs and assigns, the owners and occupiers of his adjoining messuage and lot.”</p> <p>The lot granted by Robert Wood to John Kaighn, (referred to above) was conveyed by deed of September 25th 1788, as follows : “A certain tenement' and lot of ground, situate on the north side of German street, (or Mead alley) in the district of Southwark, containing in breadth 23 feet, and in length or depth 59 feet, bounded northward by John Kaighn’s lot, and westward by ground of Michael Fowlow. On which said lot, adjoining the line of the said Michael Fowlow’s lot, hn arch and cartway is left open, and continued northward from said German street to the said John Kaighn’s other ground, hereinbefore described.”</p> <p>The endorsed-draft and plan above-mentioned were as follows:</p> <p> </p> <p>The plaintiff, after having proved by the production of the deeds, his title and that of the defendant, as deduced from John ICaighn and John Grover respectively, gave the following evidence:</p> <p>Alexander Carlisle sworn. — I put up a post there in a court back of Mead alley. Lewis Roberts employed me. Gave them 8 feet 6 inches clear of the post, up to the head of the defendant’s lot, in the open space. Pu| up one post. There was one taken down. I only put up one cedar post, about 18 months ago. It was in the summer of 1841. The suit was brought in December ■1840. I put up the post twice. Mr Wileoek came there and said, I’ll cut it down. I afterwards spliced it. I put it directly in the same hole.</p> <p>Cross-examined.— It was a post about 6 inches diameter. I measured it for the mark of the hole — measured it twice — after and before. I did not put the post opposite the angle of the fence, but inside. No gateway. There was an up and tumble down fence there in Wilcock’s lot. I knew an old gate there 20 years ago. At one time a cart could not get up except hub deep in mud. Mr Roberts put it (the court) in order and paved it; and till then a quarter of a cord of wood could not be got up.</p> <p>Benjamin Morton sworn. — I made that draft and measured the distance on the ground. The court is in width 9 feet at the end on Mead alley, and falls back here 2 feet. Opposite the angle it is 12 feet wide. The 9 feet cartway is straight. Never saw any post. We lived there 20 years. I was born there, and moved away when Wilcock came, about 6 years ago. The head of the court was in a dreadful condition. It is now in complete order.</p> <p>Mary Ware sworn. — I lived in the plaintiff’s upper house (the frame) full 4 years ago. Moved from there about 19 months ago; and lived there about 3 years. The defendant’s carts came up with coal, turned round the horse, emptied the coal, and came out. They cut the post down twice. This was soon after we moved there, about 4 years ago. Saw the carts more than once. In turning the horse, his head was towards our door. The horse’s head came near the window and his feet on the cellar door. The clothes lines were over and across the lot, from fence to fence— just at the upper part.</p> <p>Cross-examined. — The tenants of the plaintiff put up the clothes line. The owners of the line took them down. The post was put there to tie the clothes line on, and went across. Should not suppose that there was room for a cart to get up with the post up. The defendant built up to 4 feet of his east line.</p> <p>The defendant called</p> <p>B. Callaghan sworn. — I drove up my cart there empty; tried to turn while the post was there, but could not. It was impossible to turn my cart in the space left for the defendant.</p> <p>Robert Mancher sworn. — I am a carpenter. I was present when the post was cut down; distance was 7 feet 8 inches from post to fence. There was a stone a.t the corner to protect the fence, 7 or 8 inches from the fence. I saw a cart try to get up. The carter attempted to back up with an empty cart. The carter said it was impossible.</p> <p>Cross-examined. — I made this measurement in the summer of 1841. I measured with a two-foot rule.</p> <p>Hugh Erls sworn. — Saw the post standing. A cart could not get along; could not manage it in the year 1840 or 1841.</p> <p>Mary Gardner sworn. — Have known these premises 60 years. Gate always in the middle. The opening was through the arch from Mead alley. John Grover used to come up with a load of hay to the stable that stood at the east end — only way of getting up.</p> <p>Cross-examined. — This passage is the same that it ever was. Houses up the court have been built 30 or 40 years.</p> <p>Eliza Gardner sworn. — Have known these premises since 1798. There were just the brick houses then; it was open then where the frames now are. There are two frames at the end of the court. There was a stable on the rear of John Grover’s lot, where the defendant’s shop is. The tenants of the court put up a pig-pen on the vacant ground. My father, John Grover, complained ; the tenants took it away. They had put up their clothes lines, which he forbid.</p> <p>Cross-examined. — This pig-pen was before my father’s death, in 1807; it did not remain there long. Sometimes the tenants were contrary, and my father cut down the lines, and not without his permission to be up. My uncle was John Kaighn. Saw them try to get up with horse and cart, and could not with post up.</p> <p>Richard Bambrick sworn. — I saw an effort made to get by that post; the cart was backed in. The defendant told the carter to do his utmost to get in, which he did, but could not get in; there was not room enough. I cut down the post. The man who put up the post measured with a shovel.</p> <p>Catharine Shermor sworn. — I have known these premises since the year 1799. There was a pig-pen at the end of the court. Mr Grover used it with loads of hay — two horses’ load of clover hay, as high as would come under the arch; everything, clothes line, doghouse, that prevented the turn, had to be removed. Mr Kaighn told them that nothing was to be out; nothing to obstruct in any way.</p> <p>Cross-examined. — This pen was put up by one of Mr Kaighn’s tenants about 37 years ago, and the dog-house a little after, during Mr Grover’s life. It is about 30 years since I have known anything about this lot.</p> <p>The defendant also gave in evidence deed dated December 6th 1839, from Abigail Grover, &c. to him.</p> <p>The plaintiff recalled Alexander Carlisle, who testified: “I did use a rule to measure the distance of the post, as I have stated, and there is the rule I measured with. I always carry it in this pocket. I did not measure with a shovel. I measured the distance, and made it 8 feet 6 inches after the post was planted.”</p> <p>Plaintiff’s points:</p> <p>1. That under the grant from John Kaighn to1 John Grover of 15th September 1792, the defendant is not entitled to a passage of greater width than 8 feet from the east end of his lot, into the cartway and passage leading out into Mead alley.</p> <p>2. That the plan endorsed on the above-mentioned deed fixes the right of the parties claiming under that deed ; and that the defendant has no right of passage over any part of the ground now of the plaintiff, not designated and marked down in said endorsed plan as the 8 feet passage and cartway.</p> <p>3. That if the jury believe that the defendant entered upon the ground of plaintiff, without his license, beyond the said 8 feet passage-way above referred to, he was guilty of a trespass, and the plaintiff is entitled to a verdict.</p> <p>The court declined to charge specifically on these points, and said they were sufficiently answered and included in the following charge, which they delivered to the jury:</p> <p>“ That if the jury believe from the evidence that a post was placed by the plaintiff at the point, at which a line drawn in continuation of the western line of the passage leading up from Mead alley, northward, would intersect a direct northern line of a passage drawn from a point in the rear end of the defendant’s lot, 8 feet northward from the point at which this line intersects the northern line of the lot formerly of Robert Wood [as marked on the deed of 1792], and that the defendant could not, whilst such a post stood there, pass with a cart from the rear of his lot to Mead alley, without running against that post, then the defendant had a right, under the deed of 1792, to remove that post, and the doing so was no trespass.”</p> <p>To this charge, and to the refusal of the court to answer the above points specifically and affirmatively, the plaintiff excepted.</p> <p>The jury found for the defendant.</p> <p>Errors assigned:</p> <p>1. The Judge erred in declining to answer specifically the three several points of the plaintiff.</p> <p>2. In not answering them affirmatively. ,</p> <p>3. In charging “ that if they believed that the defendant could not, while the post described by him stood where it did, pass with a cart from the rear of his lot to Mead alley, without running against that post, then said defendant had a right, under the deed of 1792, to remove that post, and the doing so was no trespass.”</p>