Volume 9 — Pennsylvania State Reports

<p>In error from the Common Pleas of Bradford.</p> <p>The plaintiff’s evidence showed that his agent had called on the defendant to demand payment of a note, whereupon the defendant seized the paper, and refused to deliver it up. The form of the action did not appear: the plea was, not guilty. The defendant proved the note was given under duress, in settlement of a claim for getting plaintiff’s daughter with child. It also appeared that the defendant held an indemnity from the plaintiff against the liability for the support of the child.</p> <p>The court was of opinion that the possession of the agent would support an action by the principal, and that the defendant retaining the indemnity, was estopped from setting up as a defence, the duress in obtaining the note.</p>

<p>The acknowledgment of a deed by husband and wife, for the wife’s land, may be shown to have been obtained by fraud and duress of the wife, and thus avoided as to volunteers or purchasers with notice: aliter as to bond fide purchasers without notice.</p> <p>A deed by an infant feme covert regularly acknowledged, though dated after she came of age, is void.</p>

The administrators of Ross having sold certain real estate, the distribution of the proceeds was referred to an auditor, who made a report. This was sent back, and pending the second reference, a claim was made on a judgment and mortgage against Ross, which had not been presented to the auditor, and were entered in Luzerne. The auditor rejected them, but the court admitted the claim — this was the error assigned.

The administratrix of Thomas had a sum of money in her hands for distribution among the creditors of the estate, which was insolvent. Thomas died in 1844; administration was granted in 1845, and the usual advertisements were made.

<p>AYhere the record shows that the -writ was signed by a clerk for the prothonotary, the court is bound to take notice that he was the deputy, and had authority to administer the oath on appeal from an award.</p>

This was a proceeding by an inquest, before a justice of the peace, to inquire whether the road of the Turnpike Company, defendants, was out of repair. The only material question was, ■whether the form of proceeding had been altered by act of Assembly. The act of 1804, incorporating the Coshecton Turnpike Company, directed the form of proceedings in such a case.

In error from the Common Pleas of McKean. Burlingame and Irons executed a note in favour of plaintiffs, in the following form: — “I promise to pay, &c.,” with warrant of attorney, under which judgment was entered against them jointly. This judgment was revived by scire facias, when Irons filed an affidavit, on which the court Opened the judgment against him, and let him into a defence.

In error from the Common Pleas of-. Debt on a promissory note drawn by defendant and endorsed by Custer, Detriek and Reed. The defendant offered to show that the note was made to be discounted for a special purpose, and that before it was discounted, Reed had notice not to use the .note, and that no consideration had been given for it, and that when discounted by plaintiffs, Reed, who was a director of the bank (plaintiffs), was present.

<p>Reasonable diligence is all that is required in searching for a paper to admit evidence of its contents. And the degree of diligence depends in a great measure on the importance of the lost document.</p> <p>The admissions of the president of a bank, who was also its special agent, of his acts done in the course of his agency, are evidence against the bank. Where bank-bills have been received as a collateral security, it lies on the creditor, in a suit against a surety, to show what has been done with them.</p>

In error from the Common Pleas of Wyoming. July 13. This was a scire facias on a mortgage by Roberts to Halstead, dated May 12,1837.

In error from the Common Pleas of Bradford. This was a scire facias on a mortgage by Bradford to Potts, to secure the purchase-money of land conveyed by Potts to Bradford, with a general warranty. The defence taken was an outstanding title in one Lewis; but it appeared that when Bradford was about purchasing, he was informed by Lewis that he had a claim to the land.

In error from the Common Pleas of Tioga. July 15. The question in this case was on the validity of an assessment of unseated lands. In 1888 and 1839, Asa Mann was the owner of the residue of a tract, part of which had been sold. In those years the assessments were as follows: — Warrant No. 4483, original quantity, 999 acres. Present quantity, 200 acres. Warrantee, James Wilson. Owner, A. J. Underhill. Rate per acre, $1.50. Valuation, $300. County tax, 1838, $3.

In error from the Common Pleas of Bradford. July 17. The defendant in this ejectment had the title to an adjoining tract, on which he resided, and claimed the land in question by virtue of an occupancy, without residence, for twenty-one years. The question was, whether an entry on behalf of the Franklin College, the then owner of the land, had suspended the running of the statute. It was proved that the college had given a power of attorney to Morris to attend to the lands.

In error from the Common Pleas of Bradford. July 17. Proceedings to obtain possession by a purchaser at sheriff’s sale. In 1843, judgment was recovered against Amos Ackla, and the land in question sold by the sheriff to the present plaintiff. He gave three months’ notice to the defendant in possession, and then commenced summary proceedings before two justices to obtain possession.

<p>Appeal from the Quarter Sessions of Lycoming.</p> <p>July 19. Louisa Finly had acquired a settlement by hiring in Milton. She then married Deems, who had acquired a settlement in Chester county. After her marriage she became somewhat deranged in mind, and was found in Milton requiring assistance. The overseers of Milton wrote to the overseers of •Williamsport, alleging she was chargeable on that township. No answer was received — but the pauper was permitted to wander to Berlin, and thence to Williamsport, where she was found in a destitute condition, and removed under an order to Milton. From this order Milton appealed.</p> <p>Anthony, P. J., was of opinion that, as they had failed to prove that Williamsport was properly chargeable, the order of removal was correct.</p>

<p>"Where an attorney for several plaintiffs receives the proceeds of a sheriff’s sale of defendant’s property, evidence is admissible that one of the judgments had subsequently been satisfied by being used as a set-off, to raise an implied assumpsit by the attorney in favour of the defendant, where the attorney, having knowledge of the facts, has not paid over the money.</p>

<p>In error from the Common Pleas of Union.</p> <p>July 21. Assumpsit against three. Award filed, finding a sum due by two. One of the defendants appealed. The judgment was entered against him under the circumstances stated in the opinion of this court.</p>

In error from the Common Pleas of Union. July 22. This was ejectment on a feigned issue to try the right of Elizabeth Beckley to one-third of The lands of Michael Peters, deceased, who left three heirs, of whom Elizabeth was one. The main question was whether Peters died intestate. It appeared that Peters had sustained an injury by falling from his horse, and requested a will to be written for him, not being satisfied with one then in his possession.

In error from the Common Pleas of Union. July 24-5. Case stated. An attachment-execution on a judgment against Cowden issued on the 19th November, and was served on the garnishees prior to the 2d of December, 1842. Cowden was not served, not living within the county. On the 13th December, 1842, Cowden petitioned to be declared a bankrupt. On the 23d January he was so decreed, and an assignee appointed.

July 25. The questions in this case arose on the distribution of the proceeds of a sheriff’s sale of the real estate of J. A. Shultze. The material facts were as follows: — There were several judgments against J. A. Shultze, among which were three in the following order of priority: A. E. Shultze, Campbell and Tomb, and Lawshe. A feigned issue was directed by the court between Borrows et al. and A. E. Shultze, to try whether Shultze’s judgment was fraudulent as to creditors.

<p>The order to open a road cannot be made -until the term succeeding that at which the width of the road is determined by the court.</p> <p>It is not essential, under the act of 1845, that the fact that the viewers gave notice, by advertisement, of the time and place of their assembling to view a road, should appear on their report. It may be proved per testes ; and so, as to the fact that three of the viewers were present.</p>

In error from the Common Pleas of Lycoming. July 26. Ejectment. The plaintiffs were the former owners of an unseated tract of land, sold for taxes in 1886. Possession was not taken by the purchaser; and the question was, whether the plaintiff was barred by five years’ non-claim. Lewis, P. J., instructed the jury that the limitation in the act of 1804 did not extend to sales under the act of 1815.

In error from the Common Pleas of Union. Aug. 1. Ejectment. The defendant was the lessee of J. L. Chappel and wife, for their joint lives, rendering rent.

In error from the Common Pleas,of Union. Case for a nuisance in diverting a stream of water. The evidence was that defendant, being the owner of certain land upon a stream, conveyed a part lying farthest down the stream to plaintiff, without a special reservation of the right to the water. He then opened ditches on his land, and turned the water into them for the purposes of irrigation.

<p>Where testimony is taken on depositions as to the genuineness of an instrument, the original must be exhibited to the witness; and where he is examined on interrogatories, they must be attached, so that the court may see his answers were pertinent.</p>

In error from tbe Common Pleas of Union. Aug. 1. The questions in this cause were, 1st, Whether tbe county auditors could examine tbe accounts of tbe treasurer of tbe school-fund for more than the previous year, where tbe accounts of prior years bad never been audited. 2d, Tbe defendant bad paid an order signed by tbe president of tbe board of school directors, but not attested by tbe secretary. Part of tbe consideration was tbe price of certain stoves.

In error from the Common Pleas of Lycoming. Aug. 2. Assumpsit on a negotiable note drawn by Maynard. Plea, non assumpsit and payment. The note was drawn to the order of Abrams, and by him endorsed. The defendant showed that an attachment-execution, under a judgment against Abrams, had been served on him as garnishee; and then called Abrams to prove that he had, as endorser, paid the note to the former holder, and that the present plaintiff was a trustee for the witness.

In error from the Common Pleas of Northumberland. Aug. 3. The plaintiff declared upon a guaranty by Follmer on the sale of a house by plaintiff to Garman, that he would pay the purchase-money, and also that in consideration of a sale of the house to Garman, Follmer promised to pay the price. The evidence was of a parol undertaking, and that a deed had been executed by plaintiff to Garman, who entered on the property, and a verdict was taken on both counts.

<p>Where there is on the files of the court a draft of a road, to vacate which proceedings are commenced, a draft of the road thus vacated, need not he returned by the viewers, although the order of the court direct it to be done.</p>

In error from the Common Pleas of Lycoming. This was an issue directed between Mrs. Parmentier and Gillespie, both lien-creditors of Willard, to try the right of the former to the proceeds of his real estate, sold by the Orphan’s Court. The facts were 'these: — Willard had boon in treaty with Mrs. Parmentier for the advance of money, which she agreed to make on obtaining security on the lands, the proceeds of which were now in question.

In error from the Common Pleas of Northumberland. Aug. —. This was a feigned issue directed by the Register’s Court to try the validity of the last will of Fetzer, wherein J. B. and A. J. Fetzer were plaintiffs, and Dotts defendant. On the petition of J. B. Fetzer the court withdrew his name: and several of the legatees having declared by their petition, their desire that the will should not ,be supported, their names were added as defendants.

In error from tbe Common Pleas of Lycoming. In February, 1838, Cowden and Willard entered into articles, by wbicb Cowden agreed to sell to Willard certain land for $11,000, payable in six annual instalments, with interest. Part of the purchase-money was paid, and collateral securities deposited with Cowden. For these lands this ejectment was brought, to enforce payment of the purchase-money.

<p>A reference to a special contract in a mechanic’s claim is unnecessary..</p>

Iif error from the Common Pleas of Allegheny. Two questions were raised on the record. 1st, The jurisdiction of the justice.

In error from the Common Pleas of Allegheny. The plaintiff’s attorney in an action pending, agreed to a reference to arbitrators “ on whose award judgment was to be entered without exception or appeal.” An award was made for defendant in May, 1846. In June, 1847, an application was made by plaintiff to set aside the award, on affidavit that his attorneys had no special authority, and that the reference as made was without his consent or approbation at the time.

From the Orphans’ Court of Allegheny. The petition in this case was filed by Wills, who stated that Hannen and Davis had become his guardians, and in that character possessed themselves of his estate, of which they had not rendered a full account; and prayed a citation to the guardians to compel them to settle their accounts. The answers of the guardians averred they had settled their accounts.

<p>A justice of tlie peace may set aside an award of arbitrators appointed by consent in a cause pending before bim, for malfeasance. And if the grounds of Ms action do not appear, the court must presume they were sufficient.</p> <p>If the plaintiff proceed to trial after an award has been set aside by a justice, he waives the irregularity in such action of the justice.</p>

In error from the District Court of -Allegheny. The plaintiff held under a sheriff’s sale in January, 1846, under a mortgage by Davis, recorded February 22,1839. The defendant’s title was a judgment entered against Davis on the 22dFebruary, 1839, on which a fieri facias issued to November Term, 1840, under which a levy was made, and a written agreement by defendant endorsed waiving condemnation, and that a sale might be made without a venditioni exponas.

In error from the District Court of Allegheny. Debt upon a note sealed by T. and W. Matthews and D. Nesbitt. Judgment had been entered against all the defendants, for want of an affidavit of defence; but it was opened as to Nesbitt, on his affidavit. The plaintiff then called T. Matthews, with his consent, to prove that he was the principal debtor, and that the signature of Nesbitt, who was a surety, was genuine.

In error from the District Court of Allegheny. Sept. 7. Case against defendants as carriers for the loss of goods.

<p>Buildings and fixtures erected by a lessee for years for the purposes of trade, are not the subject of a mechanic’s lien.</p>

In error from tbe District Court of Allegheny. . Scire facias to revive a judgment et quare executionem non. Pleas; payment with leave, and nul tiel record. On tbe cause being called, tbe defendant’s counsel refused to try for want of a replication. Tbe trial proceeded ex parte, and judgment was entered “ on tbe verdict.” A fieri facias then issued, and this writ of error was sued out.

<p>In error from the District Court of Alleghany.</p> <p>The plaintiff brought trespass for debauching his wife. Pending the action'defendant died. The plaintiff then issued a scire facias to substitute his administrator as defendant. He pleaded the death of his intestate, and, on demurrer, the court gave judgment for the defendant.</p>

In error from the District Court of Allegheny. The material question in this ejectment arose under the will of Lapsley, whereby he devised certain land among his four sons equally, they paying a certain sum which he directed should be divided among his daughters.

<p>In error from the District Court of Allegheny.</p> <p>Debt against a justice for the penalty under the marriage act. The plaintiff proved a delivery by himself of a notice of his intention to bring the action to the justice; and it appeared that the justice knew the plaintiff, and after receiving the paper, they had a conversation on the subject of the action.</p> <p>The court rejected the notice as evidence because it was not signed by the party, and its sufficiency was the question.</p>

<p>In error from the District Court of Allegheny.</p> <p>Case for malicious prosecution and false imprisonment. The facts, so far as material, are fully stated in the opinion of this court.</p>

In error from the Common Pleas of Allegheny. To a scire facias sur judgment against defendant as garnishee, he pleaded in confession and avoidance. The court nonsuited the plaintiff when the cause was called, though there was no replication. It is believed there is a rule of that court which dispenses with replications where a substantial issue is raised by the pleadings.

<p>In error from the District Court of Allegheny.</p> <p>The plaintiff in this ejectment was one of three heirs of William Deal, the elder. By his will, proved in 1800, he devised: — “As to my worldly estate, I devise the house in which I now live to my son Samuel, and the remainder of my estate, real and personal, among my children, including Samuel,” reserving a life-estate in one-third to his widow. The testator left six children. Two of them died intestate and without issue, in 1809 and 1811; Catharine, another of his children, died without issue, in 1814, having devised to her mother, Mary Deal, “ my part coming from the estate of my father.”</p> <p>In 1820, Mary Deal and the three children of William Deal entered into an amicable partition by arbitration of the estate of William Deal and his three deceased children. The lot in question was awarded to Mary Deal, together with a sum of money as owelty, to bo paid by one of tho parties, who was also to pay owelty to tho plaintiff’s ancestor. ,</p> <p>In 1829, Mary Deal devised the lot in question to William Deal, under whom the defendant claimed. She had occupied the premises since the partition, and her devisee had made valuable improvements.</p> <p>The action was brought in 1846, and the plaintiff claimed one-third of the property, on the ground that Catharine took but a life-estate under her father’s will, and that she devised but a life-estate.</p> <p>The court gave judgment for defendant.</p>

<p>In error from the District Court of Allegheny.</p> <p>The defendants held, under a sheriff’s deed, several lots in the Reserve Tract, near Pittsburgh, designated by numbers. The writs of venditioni exponas were lost, and the court permitted the de*: fendants to prove, by the then deputy-sheriff and the dockets of the court, a sale by the sheriff. And they -also permitted them to identify the tracts by the deed. The defendants then offered the sheriff’s deed, acknowledged by the successor of the sheriff who had made the sale. They also showed a petition, stating that “ a sale of the property of John Woods, of, &c., was made, &c.” This was endorsed either in 1824 or 1834, either of which was incorrect; but the records showed that the order was made in 1826, when the deed was acknowledged, reciting the order as made in 1826.</p> <p>The court said these irregularities did not vitiate the sale.</p>

<p>In error from the District Court of Allegheny.</p> <p>The plaintiff was an execution-creditor of Brown. Giles called on the plaintiff, and agreed if he would stay the writ, he would pay the debt in six weeks. The plaintiff consented, and did not proceed with his execution until requested by Giles.</p> <p>Lowrie, J., told the jury it was immaterial that the writ was not stayed on the record; there was a contract to wait, and the plaintiff did wait.</p>

<p>If a forwarding merchant erroneously insert the name of a consignee in the hill of lading which was not marked on the goods, and, in consequence thereof, the goods are seized and sold by the sheriff as the property of the person whose name is thus inserted: the merchant is liable to the real owner.</p> <p>Where the consignor marks the goods with the initials only of the consignee, he is guilty of no negligence which will protect the carrier from a loss by his entering them on the bill of lading in the name of a stranger, whereby the goods are lost.</p>

<p>■Where a will is proved by proof of the signature of a deceased subscribing witness, his declarations that the testator was incompetent at the time to make a will are admissible in evidence; for the proof of his signature is prim&fade evidence of the competency of the testator to make a will.</p> <p>Where a subscribing witness declares Ms belief that the testator was non compo's at the time, the party calling him may contradict him by reading Ms evidence ' taken on a former trial, and by proof of his declarations at other times.</p> <p>And the evidence on the trial, and the contradictory statements of the witness, should all be left to the jury on the question of the capacity of the testator.</p> <p>Where there is uncontradicted evidence of general insanity at a particular period, the onus of showing a lucid interval at the very time of the subsequent execution of a will lies on the party claiming under it. It is not sufficient that there is evidence of sanity before and after the day on which the will was made: a jury cannot bo permitted from such evidence to infer that a lucid interval intervened, during which the will was executed.</p> <p>Improvements and expenditure on the faith of a contract within the statute of frauds, with the' knowledge of the owner, gives no equity to the purchaser to retain possession until he is repaid.</p> <p>Devise to A., he paying a certain sum, passes the fee without words of limitation.</p>

<p>A judgment for a greater sum than is declared for, is erroneous.</p> <p>And where a judgment is properly taken by default, under a rule of court or an affidavit of the amount due, and a narr. is filed for a less amount, a subsequent amendment of the narr. will not cure .the error.</p> <p>Where a judgment is opened generally, the burden of proof is as in other cases.</p>

<p>After a decree for a divorce, depositions taken on the part of the respondent in the court below, cannot he read on hearing of the appeal.</p>

<p>In error from the District Court of Allegheny.</p> <p>This was an ejectment by William Lee, who held the legal title, against the widow of his son Ralph and another. And the main question was, whether the defendants’ evidence was sufficient to authorize them to go to the jury on their allegation of a sale by William to Ralph Lee.</p> <p>On the trial of the cause before Lowrie, J., there was a point made, which is sufficiently stated in the commencement of the opinion of this court. It was clear that the grounds of the action of the court did not appear on the bill of exceptions.</p> <p>The defendants proved (to the court) the admissions of plaintiff that there was a written contract between himself and Ralph Lee, which had been obtained by plaintiff to make a copy, with an intention of returning it. This agreement was one which was made when the plaintiff and his two sons, Ralph and Thomas, were together. It was in writing, but plaintiff did not say that Thomas, who did not accede to it, was present when it was executed.</p> <p>The defendant was then examined, and said she had seen the paper referred to, but the plaintiff’s signature was not on it, but he and Ralph took it to town to have it executed. Search had been made, but the paper could not be found.</p> <p>The plaintiff was then examined, and denied its existence, and said the paper referred to was the heads of his will, from which his will had been drawn out and executed; that he could not write; this paper was handed to a Mr. Lee, who drew the will and did not return the paper.</p> <p>Thomas, a son of the plaintiff, stated, he saw the paper on the table in 1840. His father called it a bargain, and said it was over, and to make Ralph sure. The paper was written, but there were no signatures.</p> <p>Lee, the scrivener, testified that in 1841 he drew a will for the plaintiff, who handed him a paper called the heads of his will, in the handwriting of his son Ralph. In this the premises in question were devised to his son Ralph, on paying $300 to his sisters; the Bakerstown farm was devised to Thomas, and other property to his other sons. There was nothing in the paper about a payment to plaintiff for life, and the witness returned the paper to the plaintiff with the will.</p> <p>His honour then said there was not sufficient preliminary proof of the existence, execution, and loss of an agreement, to leave to the jury.</p> <p>The defendants then proved the admission by plaintiff, that his son Ralph, when he came of age, was about leaving home, but was persuaded by his father to stay with him until he was twenty-five, on a promise of $500. That they had then selected a piece of land (called the Bakerstown farm), which was purchased for Ralph, in connexion with Joseph Lee, Ralph’s share coming to $800, and his $500 being invested in that way.</p> <p>Fearing his son might be injured by bad company, they had agreed the deed might be made in the name of the plaintiff. Ralph resided on this farm for some time, and it was plaintiff’s intention he should have that, and his son Thomas the homestead; hut, for family reasons, Ralph ivas induced to move to the homestead — the plaintiff removing to Allegheny town — and pay plaintiff a rent of $50 per annum. He continued there for some years, and plaintiff then, desiring to make a change, made a positive agreement with Ralph that the $500 invested in the Bakerstown farm should be transferred to the homestead; that Ralph should pay him $50 per annum, and plaintiff be discharged from liability to repair. On the plaintiff’s death, the land should be Ralph’s, paying certain sums to his sisters.</p> <p>Thomas Lee stated he remembered the bargain in 1840; he saw the paper; his father said he was going to make a will, but this was to make Ralph sure. The $500 was to be taken out of the Bakerstown farm and put into the homestead, for which Ralph was to pay $50 per annum, and have the land at his father’s death. Ralph then lived on the homestead, and the plaintiff in Allegheny town. The plaintiff had offered him various articles if he would say this was only a will.</p> <p>The defendants gave other proof of similar admissions of the existence of a bargain of the same character as those already stated; and they also proved by the vendor of the Bakerstown tract, that the sale was made to Ralph, who wished to have the deed in his own name. The plaintiff paid $1000 down, and Ralph subsequently paid the mortgage for the balance, $350.</p> <p>The title-papers showed the conveyance was made to Joseph and "William Lee, in 1829, and that in 1830, Joseph conveyed his moiety to "William, who conveyed that moiety to one Richards, in 1845.</p> <p>The defendants showed that the Bakerstown farm was assessed to Ralph Lee from 1834 to 1840, and that in 1841, it was assessed to plaintiff. The homestead farm was assessed to Ralph Lee from 1841 to 1843, and in 1844 it was assessed to his widow, the present defendant, they having continued in possession since the alleged agreement for the sale. From 1837 to 1840, and during previous years, the Bakerstown farm was leased by Ralph, and in 1841 the same tenant occupied and paid the rent to the plaintiff for two years, under a notice, by Ralph, that he had nothing more to do with that place.</p> <p>On these facts, his honour withdrew the defendant’s evidence from the jury, and directed a verdict for the plaintiff.</p>

<p>In error from the District Court of Allegheny.</p> <p>Assumpsit against an endorser of a note. The evidence was, that a demand was made at the residence of the drawer, on the last day of grace (Saturday), and the answer was that he was not at home, hut would be at home on Monday and pay the note.</p> <p>The jury found the notice of dishonour was served on the endorser on the same day between three and six o’clock, P. M., and judgment was entered for the plaintiff. .</p> <p>The two points excepted to were the charge that the demand and notice were sufficient and not too soon.</p>

<p>The property of a bankrupt is not divested until a decree of bankruptcy. And if, before such decree, he has applied partnership assets to the payment of his private debts, a ratification by his solvent partners after the decree, will validate the transaction. v</p>

<p>Isr error from the District Court of Allegheny.</p> <p>Assumpsit. Wilson, the plaintiff, had sold certain mines to Nixon, reserving the right to put an end to the agreement on his failing to make the stipulated payments. The payments being in arrear, she brought ejectment, and issued a writ of estrepement of waste. McKelvy then called on her, and promised to take Nixon’s place, and pay the arrears, if she would withdraw her suits. McKelvy then worked the mines, and nothing was done in the ejectment for six months, when it, and the writ of estrepement were discontinued. There was some evidence of a subsequent arrangement having been made between Wilson and one Lewis, who entered and mined the coal.</p> <p>Hepburn, P. J., instructed the jury that the permitting McKelvy to continue working the mines, and the subsequent discontinuance of the suit and of the writ of estrepement, was a substantial compliance by the plaintiff of that part of her agreement. And that the agreement with Lewis was not a rescisión of the contract, for she would not thus destroy MeKelvy’s rights, but would remain liable for any injury which ensued to him.</p>

In error from the Quarter Sessions of Allegheny. Indictment for a forcible entry and detainer of “a certain tavern-stand, with the appurtenance, including about five acres of land adjacent thereto, situate at the Mount Pleasant and Union cross-roads, in E. township, A. county, then and there being in the peaceable possession of one Hannah McCoy, since intermarried with William Kimberly.” Judgment of restitution and for payment of costs was awarded.

<p>The onus of showing that an alteration in a material part of a negotiable instrument was lawfully made, is on the holder. And where the place of payment is in a different handwriting from the body of the instrument, there is a presumption of alteration.</p>

Isr error from the Common Pleas of Allegheny. Assumpsit. The plaintiff declared for the non-delivery of a wagon, according to the agreement of the parties, and upon the money counts. The question was, whether there was an averment of a consideration in the first count- — the verdict being entered generally.

<p>A widow is dowable of a fee simple, determinable by executory devise on her husband dying without issue living at the time of his death.</p> <p>The common law courts have jurisdiction in dower by a widow of a tenant m common dying seised of a fee simple in parcel of the lands, and of a fee simple determinable by executory devise in another parcel.</p>

In error from the District Court of Allegheny. The defendant, Bears, Avas the lessee in possession of a tavern in Pittsburgh, and the defendant, Weaver, was the lessor. It did not appear that there were any covenants. in the lease respecting repairs. There was a vault under the sidewalk on the public street in front of the premises, into which there was an opening, covered by a grate. One of the bars of the grate was broken during the term.

<p>In error from the District Court of Allegheny.</p> <p>The case is stated at length in the opinion of this court.</p>

In error from the District Court of Allegheny. Assumpsit. The defendant demised certain premises to Clements, reserving a perpetual rent, with a covenant that the lessor might re-enter and hold until the arrears were paid. Clements demised part of the premises to the ancestor of the plaintiffs. The rent being in arrear, defendant entered.

<p>In error from the District Court of Allegheny.</p> <p>The plaintiffs in this ejectment had the title of the heirs of S. Semple, who died in 1813, greatly indebted. They gave in evidence a judgment against his administrators in 1815, and a sheriff’s sale thereunder, and deed in 1815, to Wilkins, one of his administrators, for $2,300, of which $2,224 was returned as paid to the administrators of Semple, “ being the balance arising from the sale, after deducting the costs on the writ.”</p> <p>Wilkins proved that he purchased as a trustee for the creditors and heirs of Semple; that the trust was notorious, and that no money had in fact passed between himself and the sheriff. He put one Redding in possession, who paid the taxes. In 1847, he conveyed to the plaintiffs, subject to the trust under which he held it (what was the language of the deed did not appear).</p> <p>The defendant’s title was — a judgment confessed to Ross by the administrators of Semple, and a judgment in a suit brought in 1819, and confessed to Addison by the same, Craft being the defendant’s attorney in both cases: these were regularly revived. In 1833, the sheriff levied on the land, “being in the possession of tenants under the administrators of Semple, who hold the same in trust for the payment of debts of said Semple, and subject to a deduction of five acres sold to Beelenand made a sale to Ross, who, in 1834, conveyed to Craft, the defendant’s landlord.</p> <p>The plaintiffs then proved that in 1818 one Beelen had purchased by parol, from the administrators of Semple, a piece of the land purchased by Wilkins, and had employed Ross to make a purchase of another adjoining parcel from the same parties. He concluded the bargain as attorney for Beelen. In 1847, Wilkins, by deed — reciting his title from the sheriff, and the purchase by Beelen, which had been paid for by giving a credit on Ross’s judgment, and that Beelen’s estate had been sold by the sheriff to Anderson, who had conveyed to Craft in consideration of the said sum thus credited — conveyed the same to Craft. It was farther proved that the sale to Wilkins was by an arrangement among the administrators of Semple to enable them to pay the debts, and that the fact was communicated to the court when the deed was acknowledged, and that Craft acted as their attorney.</p> <p>The plaintiffs contended, that the sale by the sheriff to Wilkins after the explanation by him, vested the title in trust for the heirs and creditors of Semple. That he having taken possession, paid taxes, and sold part of the land to one who purchased through the agency of Ross, his judgment was not a lien, and the sale thereunder passed no title. That the levy under Ross’s judgment, and the purchase as agent for Beelen, proved he was cognisant of the trust, and recognised it. That the entry of the judgment by Craft, and the deed to him from Wilkins, proved his knowledge of the trust.</p> <p>These points were negatived by Hepburn, P. J., who directed • a verdict for the defendants.</p>

In error from the Quarter Sessions of Allegheny. This was an indictment for a conspiracy to cheat. Two points were made: first, that an indictable offence was not laid; and secondly, that it was not laid with sufficient certainty. The offence was a conspiracy to cheat by offering to sell ten forged notes, purporting to be $3 notes of the Commercial Bank of Cincinnati.

In error from the Common Pleas of Allegheny. The plaintiff was the sheriff’s vendee of the title of defendant’s landlord. The petition presented by him to two justices, set out the demise to defendant, the sale to plaintiff, that the rent was in arrear, &c. The inquests recited this petition, and found “that the particulars of the complaint were just and true.” Objections were taken to certain witnesses, and the proceedings were affirmed by the court.

In error from the District Court of Allegheny. After suit brought, the defendant filed a plea, that since the issuing of the writ, he had paid the claim on which suit was brought. The plaintiff filed a paper admitting the truth of the plea, and praying judgment for costs. The court gave judgment for defendant.

<p>Certiorari to the Common Pleas of Allegheny.</p> <p>Young filed a petition to prove a contract for the conveyance of lands against the executors of Aitken. Proof was made, and a decree accordingly entered in 1828, that the facts were sufficiently proved within the act of 1818.</p> <p>This certiorari was sued out as late as 1846.</p>

A road having been laid out and marked on the land, the proceedings were removed to this court and affirmed. After the cause was remitted, an “ additional report of viewers” was filed, correcting certain errors in their former report. A re-review was ordered to examine these errors and report made, on which an order to open accordingly was made. From this an appeal was taken.

In error from the District Court of Allegheny. The overseers of the poor of Baldwin township brought an action against Kline, to recover the cost of the maintenance of a negro who had been held by him as a slave, and also to recover the value of her services while so held. It was in proof that the negro had been bought and sold as a slave, and reputed as such for fifty-six years, and had lived with defendant for many years.

In error from tbe District Court of Allegheny. The plaintiff declared that he was possessed of the unexpired term, viz: four years, of an hotel which was destroyed by fire. That the defendant, the lessor, was desirous of rebuilding the same, but could not do so unless the plaintiff would surrender his term; and as the new house was to be more expensive than the former one, defendant could not let it for the same rent.

<p>A writ of erre® does not lie to a judgment on an award under the compulsory arbitration act.</p>

In error from the Common Pleas of Westmoreland. Ruffner dying, his heirs proceeded, in the Orphans’ Court, to have partition of his lands. After the date of the inquest, one of the heirs conveyed to Layton and Hughes, whose deed was recorded before the confirmation. Personal service of the rule to accept or refuse, was ordered and made upon the heir who had conveyed.

In error from tbe Common Pleas of Westmoreland. In 1808, Cook devised “ unto my grandson, Edward Cook, the plantation on which his father lived, and $150, subject to his mother’s dower, or one-third during her natural life.” The devisee was a child of an illegitimate son of the testator* and died in 1813. His mother, the devisee for life as to one-third, was then in the occupancy of the whole plantation, and continued such occupancy until her death, in 1845.

In error from tbe Common Pleas of Armstrong. The plaintiff in tbis case was a creditor of Keenan, and proved that Keenan’s property was sold at auction, and tbe notes'given by tbe purchasers handed to defendant, who promised Keenan to pay bis debts so far as they and tbe property purchased by defendant would go. Burrell, P. J., told tbe jury tbe plaintiff could maintain tbe action.

In error from the Common Pleas of Indiana. Debt by James Pomeroy against the three drawers of a note, payable to Maj.-Pomeroy. An objection was made that it was payable to Maj. Pomeroy and not James Pomeroy. The plaintiff then proved that after suit brought, his attorney presented the note to one of the defendants, who examined it and made no objection to its authenticity, or the variance between the name of the plaintiff and the payee.

In error from the Common Pleas of Indiana. The plaintiff in this ejectment had the legal title to the land in dispute, under a warrant and subsequent patent. The defendant was a settler on adjoining land in 1819, when he marked the lines of his claim and had it surveyed. In 1820, he cleared over the lines of plaintiff’s tract, and occupied the whole until 1840, when the plaintiff’s tenant entered and occupied the whole of his tract.

In error from the Common Pleas of Indiana. Debt for a legacy. The plaintiff gave in evidence the will of Thompson, admitted to probate on the 30th December, 1815, on the oath of the two subscribing witnesses; and also a codicil, under which she claimed, the certificate.on which stated that it was duly proved “by Robert Craig, the subscribing witness,” on the same day. The court rejected it, because proved by but one witness.

<p>In an action to recover tlie value of services, it is competent to prove that a promissory note was given by defendant, payable after Ms death, without producing or accounting for the note, to show the value he placed on the services.</p> <p>The measure of damages for breach of a contract to compensate a party for services by a gift of land is the value of the land, and the contract is not within the statute of frauds.</p> <p>Where a contract was proved to compensate a party by a gift of land for services to bo rendered until the testator’s death, a bond delivered by the promisor, for the payment of money, stating that to be the amount of his indebtedness on a final settlement, is prim& facie evidence of a final settlement of all claims up to that date. But if it be shown that there were other pecuniary transactions preceding the date of the bond, and the services were continued up to the death of the promisor, it is a question for the jury, whether the promise to give the land was included in such settlement; if not, it still continues binding.</p>

<p>In error from the Common Pleas of Westmoreland.</p> <p>The plaintiff declared in assumpsit, on the common counts, against Miller and four others. The evidence was, that the defendants, who were a building committee of a congregation, had entered into a contract, under seal, with the plaintiff, for the erection of a church edifice, according to a designated plan and at a fixed price. The contract contained the following stipulation:—</p> <p>“At any time during the progress of the building, the committee reserves the right to direct any alteration or variation from the original plan, so as not to vary therefrom in any very essential manner, so as to cause any material extra expense to the building; but any alteration suggested by them shall be made, and the expense, if any, shall be agreed upon at the time; but no extras shall be allowed, under any pretext whatever.”</p> <p>The action was brought for extra work done upon the building. The evidence was, that plaintiff had made various alterations in the plan, by which the cost of the building was increased. The price for one item only of these changes was agreed upon. But the defendants knew of the alterations, and made no objections; and some of them at least approved of the acts of the plaintiff. The building had been delivered to and accepted by the congregation.</p> <p>There was also evidence that plaintiff had agreed with a committee of the congregation to accept such a sum as they should name, but afterwards refused to be bound by their determination.</p> <p>Burrell,-P. J., instructed the jury: — “ This provision in favour of the defendants was one, however, which they might waive if they saw ¡iroper; and if they directed extra work to be done without previously fixing the price of it, they could not escape responsibility for it, under the clause in the article referred to. And as they could waive that stipulation in part, so they could waive it altogether; and if while extra work was in progress, or after it was done, they agreed and assented to it, and adopted it, although no price was fixed at the time of the assent, they would be liable to the plaintiff for what it was reasonably worth. It is not necessary that the plaintiff shall have shown their assent and adoption of extra work done, in express words. Their assent is a question of fact to be arrived at by the jury from the testimony, and may be as well shown by their acts and conduct as by words. The acts of one of the defendants, in relation to the extra work, would not of course furnish any evidence of assent by the others, nor bind them.”</p> <p>And in answer to the point, that an absolute and distinct promise by all the defendants was necessary to entitle plaintiff to recover: “it states the law correctly, and is answered affirmatively; with this modification, however, that the defendants could waive the stipulation in the article of agreement, if they saw fit, and make themselves liable for extra work by assenting to it, and adopting it while in progress, or after it was done, and that their assent and adoption may be shown by their acts and declarations.”</p> <p>To the fifth point, that the agreement to accept what should be awarded by the committee barred the action, the court said that it was not binding on defendant for want of mutuality, the plaintiffs not being parties to it nor bound by it. And further, that the acceptance and use of the building by the congregation was no evidence of the assent by defendants to the alterations and changes in the plan.</p>

In error from the Common Pleas .of Westmoreland. Case stated. West, having devised his lands, died on the 1st June, 1828. In 1833, Keenan obtained a judgment against his executors. In 1838, this was revived against the executors by seire facias. In 1843, a scire facias to revive issued against his executors and devisees. Whether the lands devised were liable, was the question. The court thought they were, and gave judgment accordingly.

In error from the Common Pleas of Westmoreland. Ejectment. In 1795 Bayard entered on the land in question, and died in 1805. The title to the land was in his brother-in-law, St. Clair. His widow continued his possession, and the question was, whether her declaration that St. Clair had given the land to herself and husband for life was evidence to rebut the presumption of an hostile possession. The court said it was, and this was assigned for error.

In error from the Common Pleas of Westmoreland. Debt on an award.

<p>In error from the Common Pleas of "Westmoreland.</p> <p>Assumpsit. Plea, the statute of limitations. The plaintiff gave evidence of the acknowledgment of the debt by defendant within six years after it accrued. The court said this did not take the case out of the statute.</p>

In error from tke Common Pleas of Westmoreland. The plaintiff in this action declared specially on a contract with his father, the defendant’s intestate, whereby he agreed, in 1823, that if the plaintiff would continue to live with him, work on his farm, make improvements, &c., he would leave plaintiff the farm, stock, grain, &c. The common counts were added.

In error from the Common Pleas of Westmoreland. In 1834, judgment -was entered against Johnston. In 1839, Johnston purchased certain lands, of which he died seised in 1840. In 184G, a scire facias to revive the judgment issued against his administrator, widow, and heirs. Knox, P. J., instructed the jury: “Is the lien thus obtained indefinite in its character so far as heirs and devisees are concerned ? We think not.

From the Common Pleas of Westmoreland. On the 4th of October, a test, fieri facias from Allegheny county, against Gilmore & Hunt, was left with the sheriff by Haughey & Frew. On the 7th, Williams et al. issued z, fieri facias against the same defendants, which was left with the sheriff.

<p>In error from the Common Pleas of Jefferson.</p> <p>The facts sufficiently appear Jn the opinion of this court.</p>

In error from the Common Pleas of. Jefferson. Assumpsit against a township on a due-bill “for work done on the Ridgway road, in Ridgway township,” signed by one of the supervisors. The plaintiff also offered to prove a usage for the supervisors to divide the township between them and work out their own part, and employ hands for that purpose; but the court rejected the evidence and the due-bill.

In error from tbe Common Pleas of Jefferson. Tbe plaintiff demised land to tbe defendant until the 1st of April, 1846. On that day, plaintiff gave defendant notice to quit in three months, and brought this ejectment on the 27th of August. McCalmont, P. J., told the jury he could not recover.

In error from the Common Pleas of Jefferson. The plaintiff in this case had' the legal title. The ancestor of defendants (minor children) had previously entered and made a legal settlement, according to the verdict. The only question was, whether there had been an abandonment. The defendant having commenced his improvement, married, and lived on an adjoining tract.

In error from the Common Pleas of-. This was a scire facias to revive a judgment against Fordyce, an endorser of a note drawn by Shriver, and previously endorsed by other persons.

<p>Where a rule of court provides that depositions shall not be read unless filed within a reasonable time, and depositions were taken and the cause continued because they were not filed, and the depositions were then filed, they may be read on the trial of the cause.</p>

In error from Fayette (Special Court). In 1832, Beeson devised the property now in question to Jesse Beeson, the plaintiff, and appointed him, with Skiles, Isaac Beeson (defendant), and Richard Beeson, executors.

Downer devised certain land to the defendant, “ provided that he pay to my executors, for the benefit of the legatees, hereinafter mentioned, $500.” The petition of the legatees and one H. Downer, prayed a decree for payment of the legacy. The defendant’s answer set up, that H. Downer was not a party in interest, and that the executors of the testator were dead, and administration had not been taken out, and prayed the bill might be dismissed on these grounds.

<p>In error from the Common Pleas of Fayette.</p> <p>The plaintiffs in this ejectment were the heirs of Josiah Springer, to whom the lands in question had been devised in fee by Dennis Springer. The defendant held under a sheriff’s sale, and the question was, whether that was irregular ? In 1820, a judgment was recovered by one Dawson against John and Dennis Springer. In 1822, a fi. fa. issued, and was stayed. To June T. 1828, an al. fi. fa. issued, tested March 8th; on which a levy on the land was returned. John Springer waived a condemnation, and the land of Dennis was condemned on the 15th August, 1826; but the inquest was set aside. A new condemnation was had on the 14th August. A ven. ex. tested June 17th, issued to October, 1826; which was returned not sold, because the inquest was set aside. Another ven. ex. issued to the same term, tested the same day with the last writ, and the property was sold and conveyed by the sheriff to defendant.</p> <p>It was in evidence that Dennis Springer died on the 5th of April, 1823; and the plaintiffs offered to prove that he was but a surety of John Springer, who had personal property nearly sufficient to satisfy the judgment. The plaintiffs also offered to show, by the docket, that the al. fi. fa. issued after the death of Dennis Springer; but the court rejected the evidence, and the plaintiffs proved the fact by other evidence. The court instructed the jury that the plaintiff in the action was not bound to proceed against John Springer, in the first instance, and that the fact that he owned personal property was immaterial; the levy not having been objected to at the time. That the plaintiff was not bound to revive the judgment against the representatives of Dennis, since thefi.fa. was tested before his death; that neither the al.fi. fa. nor the ven. ex., though tested after his death, was void as to him, and that there was no irregularity in issuing two ven. ex. to the same term, where one was avoided by the setting aside of the inquest.</p> <p>The rejection of the evidence, and the charge, were assigned for error.</p>

The legatees of Black filed a petition against- his executors, among other things charging that they were wasting the assets, and praying a decree for payment of the legacies. The court dismissed the petition, because they had no jurisdiction as to part of the matters stated, and because the rest of petition had already been passed upon.

In errpr from the Common Pleas of Fayette. It appeared that Oliphant, having purchased certain real estate at sheriff’s sale, executed his bond, with warrant of attorney, to one Frost, conditioned to pay the purchase-money.

In error from the Common Pleas of Mercer. The evidence was not on the record, but a statement of the case will be found in the opinion of this court.

<p>In error from the Common Pleas of Beaver.</p> <p>The lands of Patterson having been levied on, their yearly value was appraised by the inquest, and they were delivered to him at that valuation by consent of the plaintiff, according to the provisions of the act of 1840. The question was, whether the owners of a mortgage given to one Rapp, were entitled to the rent or annual valuation. This mortgage was a prior lien to the plaintiff’s judgment, and would not have been discharged by a sale of the land thereunder. The court awarded the fund to the holder of the mortgage.</p>

In error from the Common Pleas of Beaver. Case for slander, in charging the plaintiff with larceny. Plea, not guilty. The defendant offered to prove, in mitigation of damages, and not as a justification, that he had certain boards in the river, which plaintiff took, for the purpose of showing the circumstances under which he used the words in making the charge before a justice. This was rejected and assigned for error.

In error from the Common Pleas of Butler. An ejectment was brought against Sarah Sands, and, by consent, her daughter was admitted as a defendant, the mother appearing for her as guardian. The record showed that after, a jury was sworn, a judgment was entered by consent against defendant for a part of the land, plaintiff to convey the other part to her, and to her mother for life, who sued out this writ of error.

<p>Where a trust was created for the purposes of trade, and debts are contracted in the prosecution of the trust for -which by the terms of the deed the trust property is liable,-the trustee is a proper party to an action to enforce payment of the debts out of the fund, and he may be added after the judgment was reversed for want of proper parties.</p>

<p>A. purchased a donation, tract at a tax-sale, which was void, because the owner whose land was exempted from taxation was living. While he held the title he paid taxes, and afterwards he was ousted by the owner. He cannot recover back the taxes paid by him, for there was no compulsion used.</p>

In error from the Common Pleas of Crawford. Assumpsit on the following letter of credit, signed by defendant: “ I would recommend Mr. P. M. Martin, and would go security for him to any reasonable amount; so you can fill his orders, and feel yourself as secure as when I was doing business with you.” The plaintiffs proved that Martin applied to them to know the terms on which they would furnish him goods, and that they agreed to do so on his procuring a “satisfactory person to…

In error from the Common Pleas of Erie. This was an action of trespass, to try the right of two congregations to a piece of land devised for the use of a church, &c., in which a special verdict was found.

In error from the Common Pleas of Erie. Case stated. Hart purchased certain land from the administrators of Rogers, and assigned a moiety of his interest to Duncan. A deed was then made by the administrators to Hart & Duncan, who executed a mortgage for the purchase-money. Hart from time to time paid off part of the debt thus secured, and on paying the .last instalment, being $50, took an assignment of the mortgage.

In error from the Common Pleas of Erie. Assumpsit on a note payable to Levi Guilford or bearer, and by him endorsed. The defendant, the drawer, called Guilford, who was rejected on a general objection. Eor what purpose he was offered, did not appear. i The defendant then called Palmer (and also his wife), who was the first holder of the note, but had not endorsed it. They were rejected on a similar objection.

In error from the Common Pleas of Erie. This was an action of debt b.y Johnson, on a bond sealed by P. Sennett, payable in instalments on the 1st of April and September. Pleas, payment and set-off. This bond was given as the consideration for a conveyance of certain land, and of an assignment of Johnson’s interest, “being three-eighths of the whole,” in a partnership composed of Johnson, Lester & J. S. Sennett.

In error from the Common Pleas of Erie. Trespass by Thompson against Briggs, for taking certain hay. It appeared that plaintiff demised the premises to defendant for one year, for which plaintiff was to receive one-half the hay, to be divided in the barn.

<p>A purchaser by parol of part of a tract of land, who pays off a mortgage on the whole to prevent a sale, is entitled to be subrogated to the mortgage, and a judgment recovered thereon.</p>

In error from the Common Pleas of Erie. Ames and Stafford occupied land together, which was cultivated by Ames for a share of the crop. Ames left the premises, and Stafford cut the grain and refused to deliver any part of it to Ames. The court said this gave Ames a sufficient title to the grain to enable him to bring trover. There was a question of evidence, which is fully stated in the opinion of this court.

In error from the Common Pleas of Erie. ' Case for a nuisance, by breaking the bank of a water-course, and diverting the water from plaintiff’s mill. The plaintiffs gave in evidence the record of a recovery by their grantor against C. Elliott, and defendant, in which the count was the same as that filed in the present cause, with the exception of an omission to aver any day on which the act was done.

In error from the Common Pleas of Erie. The declaration and evidence, in this case, according to the verdict, was in substance this: — Fross, the plaintiff’s intestate, was the owner of lands which he had mortgaged to secure his bond to Hart & French. Dayton, the defendant, was a creditor of Fross, and purchased the land.

<p>The confession of a judgment ■without the intervention of the creditor, and an immediate issue of execution at his request, does not afford a legal inference of fraud on creditors, though there be no other proof of the existence of the debt.</p> <p>A return of a levy on personal property, not within the view of the sheriff, and not taken into custody, is no levy as to subsequent judgment-creditors.</p> <p>If the sheriff be directed by the defendant acting for the plaintiff to proceed no further, the execution is fraudulent as to creditors.</p> <p>Amendments of a return in other particulars than those stated in the affidavit on which the order to amend is made, are nullities as to other creditors, and no evidence of the facts thus stated.</p> <p>On a collateral issue between two creditors to try the right to the proceeds of a sheriff’s sale, the return of the sheriff is but primit facie evidence.</p>

Selden moved the court to allow a writ of error to remove the record of an indictment for perjury, on which the defendant was convicted and sentenced, in the Quarter Sessions of Crawford county. The suggestion of error was, that the grand jury had endorsed the indictment “A bill,” ommitting the word “true;” which, he said, is asserted to be indispensable, by every writer on criminal law.

In error from tbe District Court of Philadelphia. March 9-13. The questions in this case were: 1. Whether the assignments- of R. and I. Phillips, hereinafter referred to, were voidable' by creditors ? 2. Whether the plaintiff below, under his attachment execution, was entitled to avoid it, or whether the right so to do was exclusively vested in the insolvent trustees of the assignors.

Dec. 11. Assumpsit to recover money paid by plaintiff to the collector of taxes under a distress. The plaintiff was a corporation created under the act of 1819, the preamble of which declares it was established for the purpose of receiving and investing such small sums as may be saved from the earnings of tradesmen, mechanics, labourers, servants, and others, and of affording to industrious persons the advantages of security and interest.

In error from the District Court of Philadelphia. Dec. 12. Assumpsit on a note for $2,000, dated April 1st, 1841, payable on demand, to the order of H. Hobson, agent. Plea, payment. The defendant gave in evidence, under .a general objection, entries made by plaintiff, who was then in his employ as elerk, in his borrowed and loan-book, showing sums borrowed and. returned, resulting in a balance of $2,000, on the 30th. January, 1841.

This was an action by Carman against Noble et al., on tbeir agreement to save plaintiff harmless from debt or damage as surety for Fox, to recover tbe amount of a liability incurred by plaintiff as surety for said Fox, one of tbe defendants, who was assignee of Anguera & Curren, for tbeir creditors. In tbe first count tbe consideration averred was, that plaintiff would forbear applying to tbe court to compel Fox to give further security or be removed from office.

Dec. 13, 14. There were six cases argued together, involving the construction of the will of Richard Alsop. Held: as the court decreed, in trust for her.

In error from the District Court of Philadelphia. Dec. 15, 16. This was an action on a policy on a vessel valued at $2,500, to recover for a total loss. The vessel was insured from Spain to the United States. The deck load consisted of certain quarter casks of wine stowed in the long boat amidships. On her voyage, having encountered storms by which her mainmast was sprung and other injuries suffered, the captain bore away for ■ St. Thomas.

<p>Dec. 18. This was an ejectment to recover a moiety of two pieces of land, one moiety of which plaintiff was in possession of.</p> <p>The main question arose out of the following facts: — In 1820 John Clark obtained the title by a sheriff’s deed to the whole property ; but in fact he was trustee for his father, Yinson Clark, for a moiety. In 1821 John conveyed this moiety to Yinson Clark, the defendant, hut the deed was not registered until 1836.</p> <p>In 1831, John Clark mortgaged the whole property to Broad-head, the mortgage being registered in November. But according to the verdict Broadhead had notice, at and before the date of this mortgage, of the real extent of John Clark’s title, and of the deed to Y. Clark.</p> <p>In 1832, Broadhead, by deed which was never registered, assigned the bond and mortgage to Johnson, who had no notice of V. Clark’s title.</p> <p>In 1835, there was a judgment recovered by Johnson’on another cause of action against John Clark, under which the whole of the property in question was, in 1837, sold and conveyed by the sheriff to Johnson. But at this sale notice was given of Yinson Clark’s title to the moiety.</p> <p>In 1844, Johnson conveyed to the plaintiff, who, it was assumed, had notice of Y. Clark’s title, and in 1845 he assigned him the mortgage. On the accompanying bond judgment had been entered in 1832. Whether this was assigned or not, could not he gathered from the hill of exceptions.</p> <p>Under these circumstances the defendant contended that the sheriff’s sale having passed hut a moiety, on account of the notice given by Y. Clark, the plaintiff’s right under the mortgage was postponed: 1. Because of the notice to the mortgagee of the state of the title. 2. Because the assignment was not registered before Yinson Clark’s deed was. 8. Because the mortgage merged in plaintiff’s title under the sheriff’s deed.</p> <p>On this point the court (Jessup, P. J.) instructed the jury, that if Broadhead had notice of Y. Clark’s deed, plaintiff was bound by it.</p> <p>The other exceptions were as follows: 1. The court permitted defendant to read the proceedings under the judgment on the bond whereby other property had been sold to Johnson subsequently to his pinchase of the property in question. 2. They permitted defendant to examine John Clark, to prove notice to Broadhead of the title and deed to Y. Clark, and that this moiety of the land was included by mistake. 3. They also permitted defendant to prove that Johnson at the sheriff’s sale gave but the value of a moiety of the premises. 4. The defendants had shown several judgments against J. Clark, prior to that under which plaintiff purchased — which were liens — and that no purchase-money was paid by him to the sheriff. The court told the jury that if plaintiff held under the mortgage only, then the amount of his bid, which was applicable to other creditors on their liens who had acquiesced, should be applied to the payment of the mortgage debt.</p> <p>The case w'as argued December 22-8, 1847, and now re-argued on the effect of the notice to Broadhead of Yinson Clarke’s title, by</p>

In error from the Common Pleas of Carbon. Deo. 19. Assumpsit on a guaranty of a sealed post-note of the Northampton Bank. The plaintiff’s witnesses were unable to identify the seal, because of the faintness of the impression; but the court admitted the note in evidence, after proof of defendant’s guaranty endorsed thereon.

In error from the Common Pleas of Monroe. Dee. 19. Assumpsit on the following instrument: — • “ Borrowed and received of J. Laforge one hundred and seventy-two dollars eighty-eight cents, in Pike county checks, which I promise to return on demand. Witness my hand, January 7, 1824. 1172.88. ■ D. Jayne.” Plea, the statute of limitations.

In error from the Common Pleas of Northampton. Dec. 20. Case stated. The question was, whether the property of plaintiff in error was liable to taxation for county purposes ? The plaintiff in error was a mutual insurance company, incorporated by act of Assembly.

<p>In error from the Common Pleas of Northampton. -</p> <p>Dec. 20. The question was the same as in the preceding case. The plaintiff in error was a corporation chartered by Pennsylvania and New Jersey, to construct a bridge over the Delaware.</p> <p>The property on which the assessment was laid consisted of money at interest and bank-stock in the Easton Bank. It was composed of funds drawn from the profits of the company during successive years, and constituted “ a growing fund,” authorized by the charter to provide against decay, and for the rebuilding and repairing of the bridge.</p> <p>The tax was laid for state and county purposes; and it was stated that the dividends were taxed for state purposes in the hands of the company, and for county purposes in the hands of the stockholders.</p> <p>The court gave judgment for the plaintiff.</p>

<p>To avoid a decree for fraud, that must be put in issue by the pleadings.</p> <p>From the Common Pleas of Montgomery.</p> <p>Deo. 26. In 1820, Dull bequeathed to Jones, Roberts, and McNeill, or the survivor of them, in trust, to place the fund at interest on real security, and directed his executors to pay the interest of one part thereof to his daughter Mary, for life, and after her death, the principal among her legal representatives equally. And by a subsequent clause, he appointed the said Jones, Roberts, and McNeill, executors and trustees of his will.</p> <p>These trustees having been discharged by the court, Simpson, one of the appellants, was appointed trustee and received the fund.</p> <p>In 1846, Simpson petitioned the Court of Common Pleas, setting forth that he had been appointed trustee for Mary McMinn under the will of Dull, and after stating an account, prayed to be discharged from a further execution of the trust. A rule was then granted on Mary McMinn to show cause why the prayer should not be granted. On the return of this rule Mary McMinn filed a petition stating that Simpson had been discharged, and recommending the appointment of Johnson in his stead. The court then made an order appointing Johnson trustee in the stead of Simpson, approving of one Bradshaw as security. And on the same day, they made a decree reciting that a receipt from Johnson to Simpson for the trust funds had been exhibited to the court, and ordering Simpson to be discharged from the duties of the trust.</p> <p>It will be observed that in these proceedings no mention was made of the fact that any party other than Mary McMinn was interested in the trust.</p> <p>In October, 1847, four of the children of Mary McMinn filed a petition in the Common Pleas, setting forth the will and the decrees of the court above stated, and averring that Johnson had not given the security required, that they believed the fund was unsafe in his hands, that he was mismanaging it in not investing it in the manner required by the will, but had loaned a portion of it to Mary McMinn, and intended to pay her the balance. That they were interested in the matter, but had received no previous notice of the proceedings of the court. They therefore prayed the court to annul the decree discharging Simpson, and to issue citations to Simpson and Johnson requiring a statement of the manner in which the funds were invested, and for general relief. These citations were issued, and a rule taken on Simpson to show cause why the decree discharging him as trustee should not be annulled.</p> <p>The answer of Johnson denied that he was mismanaging the fund, but admitted he had loaned $690 to Mrs. McMinn and held her obligation for the same. This amount was one-half of the whole fund.</p> <p>A'petition was then presented by four of the children of Mary McMinn, approving of the loan by Johnson to Mary McMinn.</p> <p>Simpson not appearing to the citation, the petition was taken pro confesso, and a reference made to take proof of the facts there alleged, and to report an account.</p> <p>This report, finding a balance due by Simpson, and the facts as they appeared on the records of the proceedings detailed above, was confirmed.</p> <p>A rule was also taken on Johnson, to invest the trust funds and give security, which was extended by the court; but not having been complied with, the court dismissed Johnson, and appointed a receiver, to whom they required payment of the trust fund, and delivery of the securities to be made. From these decrees, appeals were taken.</p>

In error from the Common Pleas of Bucks. Dec. 26. This was an action by an administrator to recover the difference between the price at tvhich the defendants’ intestate purchased certain real estate sold under order of the Orphans’ Court, and that which the property brought on a re-sale. The first point made was, that the sale had been set aside, and hence the defendants were discharged.

In error from the Common Pleas of Bucks. Dec. 27. In 1814, Joseph Richardson bequeathed $2,000 to each of his five daughters, payable at eighteen. He named two executors, whom he also appointed guardians of his children, who severed in tlioir accounts. One of them, William Richardson, filed hife account, which was confirmed in 1818, showing a balance in his hands of $7,057, interest from 1816, which be retained to pay the legacies of four of testator’s daughters.

<p>Where land was conveyed to trustees and their successors, to erect a school-house for the perpetual use of the parties to the deed and the inhabitants residing nearer to that school thin any other,, and such other persons as the inhabitants might see fit to admit, a charity is created which is not divested by non-user . for more than seventeen years after a school-house had been erected by contribution and used, and a re-entry by the grantor.</p> <p>Permanency is not essential to constitute a charitable gift.</p>

In error from the Common Pleas of Montgomery. The plaintiff brought this action against S. Tams, Livingston and Lyman, the two latter notbeing served, and declared: first, on two notes dated May 1st and June 6th, 1846, drawn by defendants under the firm of Livingston & Lyman; secondly, on the common counts. Issue was joined on the pleas of payment and the general issue.

iN'error from the Common Pleas of Montgomery. Dec. 29. Two cases between the same parties were heard together.

In error from the Common Pleas of Bucks. This was an action of debt by the sheriff against the principal and sureties in the bond of the jailer for an escape of a prisoner arrested on mesne process.

<p>In error from the Common Pleas of Chester.</p> <p>Jan. 2. The defendant was the purchaser of a tract of land from the plaintiff under articles; and the question submitted on the case stated, in an action for the purchase-money, was whether there was a sufficient title to the whole of the premises.</p> <p>The tract was composed of two parcels, one of which had been the property of Mary Jones, deceased, wife of Evans Jones. The other parcel was the property of said Evans.</p> <p>Evans Jones having survived his wife, devised all his estate, real and personal, to his son Benjamin, the plaintiff, with certain exceptions. Some of these he gave to his son John. His own land and that of his wife’s adjoined. By his will he directed a line to be drawn including on one side his own land, and a piece of that which had been his wife’s: all the land lying on the other side of this line, being partly his own land and partly that formerly belonging to his wife, he devised to John, directing the line to be the boundary between Benjamin and John, and that they should equally support the fence and cleanse the ditch. He then continued: “If John marries and has children, Benjamin to make John a title for his half of his mother’s land, which is a condition of this my will; still John to have the use of Benjamin’s half of his mother’s farm, according to the above-described bounds... I make the above a sine qua non, and if either attempts to break it, is to have no benefit to my estate, but all to go to the one willing to fulfil.”</p> <p>John accepted the legacies and devises under the will of Evans Jones, and Benjamin tendered him a deed for his half of their mother’s land, to take effect on condition of his marriage, and the birth of children. This deed was not accepted.</p> <p>Whether Benjamin had title to the parcel which originally belonged to the wife of Evans, and which descended to himself and his brother, was the question.</p> <p>The court gave judgment for the plaintiff.</p>

<p>In error from the Common Pleas of Schuylkill.</p> <p>Jan 4. Churchill Houston, by his will, directed his executors to pay an annuity to his widow for life, and gave legacies to several persons and to his executors in trust for others and for certain, charitable associations and corporations, and the residue of his estate to his several legatees in the proportion of their respective legacies.</p> <p>By an act of Assembly, the persons, or any one of them, who held an undivided interest in lands in Schuylkill county, which were held in common with said Churchill, were authorized to issue a writ of partition, in the usual form, for such lands; “and the said court shall, if the said parties are entitled by law to claim and demand a partition thereof” order notice to be given to his executors, and publication to be made; which service should be considered as full, as to both heirs-at-law and devisees, as if the writ was served personally on each of them.</p> <p>Upon*proof of such service on the executors, and publication, the court was authorized to make partition; and all parties claiming under said Churchill, whether as heirs or devisees, might appear, and all orders, &e., were to be as obligatory on them as fully as if living and made parties thereto. That the share whereof said Churchill died seised, or the proceeds, if directed to be sold, should be conveyed in severalty or paid to a trustee to be appointed, giving security to be held for the use of persons entitled thereto. That the partition should vest in the parties and the trustee their several interests and that of said Churchill, whether the heirs or devisees of said Churchill should be determined to be entitled thereto, and a sale should pass his interest. That the executors, heirs, and devisees of said Churchill who might become parties, should be taken to represent his interest; and neither they nor any other person should object that they claim his purpart adversely to each other.</p> <p>A writ of partition was then issued by Starr against Biddle et al., and against divers parties and corporations claiming under Churchill Houston as heirs or devisees, and his executors, with notice to every person claiming under him, for a certain tract of la¡ncl whereof and whereas they the said Starr and the said defendants together and undivided do hold. • An order for publication on such parties, and for personal service on the executors, was then made by the court. The sheriff returned personal service and affidavit of publication, pursuant to the order. The narr. alleged that the plaintiff and defendants held together and undivided all that, &c.; and having set forth the proportional parts of all the other parties, averred that the following named persons and institutions claiming under Churchill Houston, deceased, whether as heirs or devisees, viz.: naming the executors, devisees, and heirs, the one-tenth, &c., hold, &c.</p> <p>The record then recited that the court, having examined the title, as well of the demandant as of the tenant, gave judgment quod partitio fiat, according to the narr.</p> <p>Whereupon this writ was sued out, and errors assigned.</p>

<p>In error from the Common Pleas of Chester.</p> <p>Jan. 4. — This was an action of debt on a bond of Hodgson, the defendant, to the plaintiff. The defendant showed a foreign attachment at the suit of Sherer against one David Mackey, in which the sheriff was commanded to attach all moneys due on obligations in the name of Mary Mackey, the present plaintiff. The debt claimed in that action was $1,000, and the process was served. This attachment was finally settled by the defendant there, and the questions below were: first, whether the present defendant was liable for interest on so much of his debt as was necessary to satisfy the attachment during the pendency of those proceedings; and, second, whether he was entitled to retain an allowance for his trouble as garnishee.</p> <p>On the trial below, the defendant gave evidence to show that David Mackey, the defendant in the attachment, was the real owner of the bond. This consisted in part of his own declarations, and was objected to by plaintiff, and assigned for error.</p> <p>The court instructed the jury there must be evidence sufficient to raise a well founded doubt whether David or Mary Mackey was the owner of the money due on the bond, to suspend the interest, and if so, defendant was entitled to a liberal allowance for his attendance as garnishee.</p>

<p>One found an habitual drunkard cannot revive a note, barred by the statute of limitations.</p>

<p>In error from the Common Pleas of Chester.</p> <p>Jan. 6. Case stated. Wagoner by his will bequeathed one-tenth of the residue of his estate to Chrisman, in trust for the separate use of testator’s daughter Sarah (the plaintiff), to be paid to her at such times and in such sums as she may require, her receipt, and hers only, to be a discharge; the said Chrisman to invest the same, and keep it invested, so long as it remains in his hands, in good real securities — then followed a power to Sarah to appoint by will: “ and in case she should die without having withdrawn the said legacy from the hands of the said trustee, and without making an appointment, then” he gave it to his other children. The plaintiff had been married to one Whittock some years, before; but she had never cohabited with him, nor used his name. Defendant had received the money, and the question submitted, was whether the plaintiff “ is entitled now to receive the legacy.”</p> <p>The court (Nile, P. J.) gave-judgment for the plaintiff.</p>

<p>Where funds were deposited for a special purpose, with notice to the receiver; he cannot refuse to apply them to the object for which they were deposited, on the ground that a debt is due him by the depositor.</p> <p>The state of Illinois created two separate funds for internal improvements — the one for general purposes, the other for the construction of a particular canal. The canal was under the superintendence of the canal commissioners, and a loan was authorized and negotiated on bonds bearing interest, payable at A., B., and P. ‘ The funds of the canal commissioners were deposited with the Bank of the United States at B. An account was also opened in the name of the fund commissioner of Illinois with the same parties, which account was overdrawn. Held, that the Bank of the United States, having notice of the creation and issue of such bonds and of coupons, entitling the bearer to receive the interest to accrue thereon at the Bank of the United States, and receiving on deposit funds sufficient to pay such coupons under an agreement to pay them, could not refuse payment on the ground of a debt being due by the state on the fund commissioner’s account.</p> <p>Assumpsit against a depositor for the amount of an overdraft, is a waiver of the tort, and subject to the general right of set-off.</p> <p>The holder of coupons, payable to bearer, may maintain an action thereon against the party bound to pay such coupons, or use them as a set-off against him, there being no proof that they were unlawfully obtained.</p>

<p>By proceeding before arbitrators, an objection to the illegality of tbeir appointment is waived, even though, there was an express agreement that there shquld be no waiver.</p>

<p>Under the act of 1783, a writ of error and not an appeal lies to a judgment of the Common Pleas on a forfeited recognisance. The appeal provided by that act, lies only to the orders of the court on applications to remit or moderate the forfeiture. Hence an appeal taken from the judgment, assigning errors in the proceedings, and also that the court should have remitted the forfeiture where the record did not show such an application was made to the court below, was quashed.</p>

<p>Tie transfer of a general ship before delivery of the cargo, passes the right to sue for the freight; and the law implies a promise to pay by the consignee receiving the goods.</p>

<p>Appeal from the Common Pleas of Philadelphia.</p> <p>Jan. 18. The question was the right of Lyman’s assignee to a dividend of the estate of Marshall & Kellogg, who had assigned for creditors, which was resisted on the ground that there were prior liens on the property sold by Lyman, for the price of which, the claim was made.</p> <p>The facts were these : — On the 14th of April, 1838, Patterson entered into an agreement for the purchase of a piece of land, to he paid for at the end of five years, secured by bond and mortgage. He entered on the property, and partially built a furnace for making iron. Some time afterwards, he agreed to transfer his interest to Lyman, who was to succeed to all his liabilities to the vendors. Lyman took possession in the fall of 1838, and erected machinery for manufacturing iron, but the agreement to transfer was not executed by Patterson until 1839. In 1840, Lyman made a bill of sale of all his fixtures, machinery, tools and goods on the land, to Marshall & Kellogg. The price agreed upon was the claim in this case. He also, by a verbal arrangement, transferred to them his interest in the land.</p> <p>The defence was, that there were two judgments against Patterson : one March 1st, 1838, and one December 10th, 1838, which the assignee alleged were liens on the fixtures sold by Lyman. But it was proved that at the time of the purchase Marshall & Kellogg had knowledge of these judgments, and consulted counsel, who advised they were not liens.</p> <p>The court decreed Lyman’s assignee a dividend, and this appeal was taken.</p>

<p>A., having mortgaged land to secure llis bond, conveyed the land to B., who agreed to pay the mortgage-debt and interest. B. having failed to pay the accruing interest, it was paid by A. and receipts endorsed on the bond. A. then, purchased the bond and mortgage, and took an assignment in the name of a trustee. On the sale of the land by the sheriff he is entitled, as against a subsequent judgment-creditor of B., to receive from the proceeds the principal of the mortgage-debt, together with the interest he had paid, which B. had agreed to pay.</p>

<p>In error from the Common Pleas of Philadelphia.</p> <p>Jan. 19. The case is fully stated in the opinion of the court.</p>

<p>From the Common Pleas of Philadelphia.</p> <p>Jan. 19. On the 14th January, 1845, Sharpless and another made a general assignment to Lea and another, in trust to sell and pay the proceeds to such of the assignors’ creditors as should execute a release before 12 o’clock M. on the 7th February, 1845. The auditor and court distributed the fund to all the creditors, as well the non-releasing as those releasing; and this appeal was taken.</p> <p>It did not appear where the creditors resided.</p>

In error from the District Court of Philadelphia. Jan. 19. Assumpsit for money had and received. The defendant was the drawer of a note to the order of Danforth & Hildeburn, and the endorser of a draft drawn and accepted by Reinhard.

From the Orphans’ Court of Philadelphia. Jan. 19-22. The question in this case was whether the appellant was liable as guardian for certain investments made by him of his wards’ money. John Jennings died in 1832, leaving five children, of whose estate, Worrell, the appellant, at the solicitation of their mother, and against his inclination, became the guardian.

Quo warranto. The suggestion set forth, that by a commission issued by the governor, dated December 14, 1848, directed to the relator, reciting that it appeared from the returns in the office of the secretary of the commonwealth, that at an election on the 10th of October last, O. Brooks was duly elected to the office of Clerk of the Orphans’' Court for the city and county of Philadelphia, and that since the filing the said returns, said Brooks had deceased, and a vacancy…