Volume 9 — Watts's Pennsylvania Reports

James and John Williams against George Selden. This was an action on the case for a nuisance, in obstructing a fifteen feet passage, on the north side of the plaintiffs’ lot, purchased by them from Judah Colt, and to which they claimed a right in common with the defendant.

Mary Trimble against John Cook and James Cook. This was an action of ejectment to compel the defendants to yield the plaintiff a support out of the land for which it was brought.

Elizabeth M’Connell against James M’Closkey and William Boreland. Appeal by plaintiff from the judgment of a justice, who thus stated the cause of action: « Summons, trespass for taking and leading away one sorrel colt, tile property of the plaintiff, not exceeding one hundred dollars.” The case was referred, and the referees awarded for the defendants, upon which the justice entered judgment, and from which the plaintiff appealed.

Mary Bleakney against Janies Graven. Ejectment. Furgus Bleakney, the husband of the plaintiff, died seised of the land in dispute, having first made his last will and testament, by which he devised the land as follows: “ In the name of God, ameU,'&c. I, Furgus Bleakney, considering the uncertainty of this mortal life, and being of sound and perfect mind and memory, blessed be Almighty God for the same, do make and publish this my last will and testament, in the manner and…

David Lloyd, William Hugsu, and Paul Hugus, trading in the name of David Lloyd & Co. against Samuel Fundenburgh, Ephraim Lloyd and Henry Nelson, trading in the name of Fundenburgh, Lloyd & Nelson. • This was an action on the case, in assumpsit, founded upon a promissory note, dated the Sth of April 1837, for 997 dollars 37 cents, signed Lloyd, Fundenburgh & Nelson, and which was given by Ephraim Lloyd.

Nicholas Alternas against Andrew Campbell and William Gamble. Ejectment for a tract of land, containing three hundred and twenty acres:—for which the plaintiff gave in evidence a regular chain of title from the commonwealth down to himself. The defendants relied upon the statute of limitation and gave proof, that they, and those under whom they claim, had been in possession of the land, for more than thirty years.

. ERROR to the court of common pleas of Allegheny county. Richard Robertson against John Roberison. Ejectment for the undivided half of a tract of land containing 151 acres. This case involved a construction of the statute of frauds and perjuries, and depended upon parol testimony of the acts, declarations and conduct of the parties, so voluminous as to be beyond the limits of a report; the material facts, however, are accurately stated in the opinion of the court.

The Commonwealth of Pennsylvania for the use of Elijah Trovillo, Esq., late sheriff, against John F. Kelly. - A capias ad respondendum issued at the suit of Robert Patterson against L. Fogg and George Fogg trading in the name of L. Fogg & Brother, by virtue of which the sheriff arrested L. Fogg, and he entered into a bond with John F. Kelly, the defendant, as security in the penalty of 2000 dollars, with the following condition: “ Now the condition of the above obligation is…

Samuel Burnside against William Weightman. This was an action of replevin for four hundred dozen of wheat. On the 3d of October 1837, William Maits was the owner in fee of the land, on which the wheat (in g. twelve acre field) was the only growing crop-, or grain in the ground.

<p>The statute of Westm. 2, which gives a bill of exceptions to “any one impleaded before the judges,” does not extend to an inquiry of damages executed at the bar of the court.</p>

<p>ERROR to the common pleas of Crawford county.</p> <p>James Dauchy against Isaac W. Pond. Ejectment for 80 acres of land, to compel the specific execution of the following agreement, which the plaintiff gave in evideuce:</p> <p>Agreement, January 24th, 1834, between I. W. Pond, of the one part and James Dauchy of the other. Whereas, the said party of the first part hath agreed to sell to the said party of the second part a certain piece of land, situated in Spring township, &c., and bounded, &c, containing all my right title and interest within the boundaries above mentioned, for the.sum of 1000 dollars; the payments to be made as follows: 100 dollars in hand paid, and 400 dollars to be paid the 1st day of May next, and 500 dollars to be paid in two years from the 1st day of May next, to be on interest from the 1st day of May next. .Whereas, in consideration .the said party of the first part is to give possession to the said second party, on the 1st of March next; the said first party to have one half the privilege of the barn. Whereas, in consideration of th.e fulfilment of the above payments, the party of the first part agrees to make a warrantee deed to the said party of the second part. Whereas, in consideration that the said party of the second part should fail to make the payments as before mentioned, this agreement is to be null and void and of no effect, otherwise in full force, whereunto we do set our hands, &c.</p> <p>Isaac W. Pond, [l. s.]</p> <p>James Dauchy, [l. s.]</p> <p>Witness James Foster, Henry Pond.</p> <p>He also read a receipt to the following purport, viz: “Spring,</p> <p>June 5th, 1834. Received of James Dauchy 90 dollars, to apply in our land contract, that is, if the balance of the first payment is paid over by the 1st day of September next, and if not, the above amount is to be refunded back to Mr. Dauchy.</p> <p>(Signed,) “ Isaac ,W. Pond.”</p> <p>The plaintiff then called witnesses to prove that on the 1st of May 1836, he tendered to the defendant the whole balance of the purchase-money, amounting to about 950 dollars, which he refused to accept.</p> <p>The defendant then gave evidence that Dauchy had gone to the eastward, with the expectation of getting money to pay for the land, and was disappointed, and that when he returned he talked of giving up his contract, and Pond expressed a wish that he should; that some difference occurred between them on the subject of alleged improvements made by Dauchy; that Pond told him to take his horses off the farm, and they were taken off, and Pond took the possession of the land again, about the 20th of May 1835, and that he, Pond, had tendered to refund to Dauchy the amount of the money he had paid on the agreement, which he refused to. accept.</p> <p>The defendant also offered to prove that in consequence of the extension of a canal in that vicinity, the land had risen, in 1836, fifty per cent, higher than it was, in 1835, when the defendant retook the possession.</p> <p>To this evidence the plaintiff objected and the court rejected it, and sealed a bill of exception at the instance of defendant.</p> <p>The court below was of opinion, that the plaintiff was entitled to recover, and in answer to several points propounded to them, so instructed the jury.</p>

<p>ERROR to the court of common pleas of Allegheny county.</p> <p>The heirs at law of James Abercrombie deceased in trust for themselves and other lien creditors against George W. Holdship, and Thomas Douthif. Ejectment for a lot of ground in Pittsburgh, upon which a tail-house was erected.</p> <p>Doctor Hernon, previously to the marriage of George Anshutz arid his wife, in contemplation of the same taking place, became invested with the legal title to the lot or parcel of ground in question, in trust for the separate use of Mr Anshutz. All the parties lived within the city of Pittsburgh, where the property is situated. After the marriage, Mr Anshutz, the husband, took possession of the lot, as though his wife had been seised of the legal estate at the time, and no deed of trust had ever been executed. This, however, it would seem, he did with the implied, if not the express, assent of Doctor Hernon, the trustee, as he made no objection to it. After taking the possession, he gave a lease of it to Mr M ’Cullongh, for a term of six years. During the term, Mr M’Cullough contracted for and caused a building to be erected upon the lot, with the approbation, and as it appears from the evidence in conformity in some pariiculars, to the direction of Anshutz. In effecting this, M’Cullough contracted a mechanic’s debt or claim, which was afterwards, in due time, filed in the prothonotary’s office, as a lien against the building under a contract made with him, as the owner thereof. Upon this claim thus filed as a lien, a writ of scire facias was sued out of the common pleas against M’Cullough, and a judgment obtained therein, awarding execution for the amount of the claim against the building; which was accordingly taken in execution afterwards, and sold by the sheriff to Abercrombie, the ancestor of the defendants in error. These are the facts of the case, as they appeared in evidence, about which there does not seem to have been much, if any, controversy. The question raised upon them is, did the acts of assembly, securing to mechanics and others, payment for their labor and materials in erecting houses or other buildings within the city of Pittsburgh, make the debt for which the lot and building was sold a lien upon the fee simple estate?</p> <p>The court below, (Dallas, president,) upon the authority of the cases of Savoy v. Jones, 2 Rawle 350, and Anshutz v. M’Clelland, 5 Walts 487, directed the jury to find for the plaintiffs.</p>

Newman, the plaintiff below, brought an action of assumpsit against M’Farland on an alleged warranty of a horse passed to him as sound in all respects, but the colt-distemper.

<p>A testator devised to his son a part of his real estate, subject to the payment of a certain sum, and directed his executors to sell all the rest of his real estate and divide the proceeds amongst his children. The son refused to accept the devise upon the terms stipulated; but, treating that part of the estate devised to him as a lapsed devise, he petitioned the orphans’ court for a writ of partition and valuation, which was regularly proceeded in; he took the same at the valuation; it was confirmed to him, and he went into possession. The executors, treating this proceeding as illegal, proceeded under the powers contained in the will and sold the property to four other of the heirs, who brought ejectment for it: Held, that the proceeding of the orphans’ court was void, because there was no intestacy: and the proceeding of the executors was void, because they had no power under the will to sell this property: and that the proper remedy was a proceeding in the orphans’ court, under the act of the 24th of February 1834, to compel the payment of the legacies charged upon the land as devised, and thus sell it for the benefit of the legatees.</p>

<p>ERROR to the common pleas of Beaver comity.</p> <p>James Hunter against Philip Lawrence and Eli Evans. This was an action of ejectment to recover the possession of 424'acres of land. The defendants took defence for 100 acres.</p> <p>The plaintiff gave in evidence a warrant to James Hunter, of the 14th of April 1792, a survey made upon it, on the 12th of February 1795, of 424 acres and allowance regularly returned. It was marked on the record, that the beneficial owner of the warrant is the Farmers and Mechanics’ Bank, of Philadelphia. Enoch Marvin was examined as a witness, and testified that he was the agent of the Population Company, (from whom the bank derives its title,) from 1809 till 1812, when the- company was dissolved, and he became the agent of Griffith & Wallace, and that this tract and others was put into his care by the company to attend to paying taxes, selling, &c., &c. And it was also in evidence, that, on the 15th of February IS 10, the Population Company, by their agent, Enoch Marvin, filed in the commissioners’ office of Beaver county, for the purposes of assessment and taxation, a list of the tracts of land owned by the company, in which list or statement the tract in dispute is included. The plaintiff also gave in evidence a deed from John Field and others, trustees of the Population Company, to Robert Bowne, dated the 30th of October 1811, for this tract amongst others, and it was admitted that the title was regularly derived from Robert Bowne to Griffith and Wallace, a deed from William Griffith and Wife and John B. Wallace and Wife to the Farmers and Mechanics’ Bank, dated the 1st of December ISIS, for this tract among others. Power of attorney from William Griffith & John B. Wallace to Enoch Marvin, dated the 31st of December 1813. A lease from William Griffith & John B. Wallace to George Lawrence, dated the 10th of October 1817, describing the tract leased, 200 acres, more or less, and including the cleared land, late in the possession of George Lawrence, from the date of the ¿ase to the 1st of April next. A lease from the same to the same, dated the 1st of April 1818, for one year. A letter from William Grimshaw, Esq., to James Allison, Esq., dated the 15th of October 1833. Notice dated the 16th of December 1833, addressed to George Lawrence or the person in possession of the land, requiring the possession to be delivered up to the Farmers and Mechanics’ Bank. William Caines, late shariflyproved the service of the notice on Thomas Foster, the tenant on the land .formerly occupied by George Lawrence on the 30th of December 1833. Enoch Marvin proves that the tract of land he leased to George Lawrence is the same tract that is warranted .in the name of James Hunter, and Mr Caines, proves that Eli Evans was in possession at the time he sued the ejectment of the same tract of land, that he served- the notice on Foster to give up the possession .of. On the part of the defendants a number of witnesses were examined, who proved that Philip Lawrence, Sen., was in possession of this tract in the year 1796, lived two or three years on it and died; that after the death of the old man, George and Philip lived on it, until -the year 180S, when Philip left it and went down the river; returned in 1810 or 1811, and came on the same tract. George lived on the old improvement; that George and Philip wanted to divide it, and called on old Mr Funkhouser, Jacob Joho and Nicholas Main;.that they made a line without a compass, which they supposed would make 100 acres, more or less, on the east end of the tract; that Philip and George were both present, and .that it was done by marks on the ground; this was in 1810 or 1811. Philip .went on it within six months after it was divided, and built a .house, and continued to reside on it until 1835, when he left it; that in 1813, there were eight acres cleared and fenced. On the cross-examination of Nicholas Main, he stated that when Philip went away, in 1808, he sold his interest to George; that he was away one or two years, and that when he came back he made some agreement with George to come on the land, and afterwards it was agreed that Philip was to have this 100 acres. The duplicates containing.the assessment of taxes from 1811 to 1835, both years inclusive, showing the assessment of 100 acres of land to Philip Lawrence, during the whole of that time and several of the witnesses prove the payment of the taxes by Philip Lawrence.</p> <p>The defendants further offered to give in evidence the notes of James Carother, Esq., a former deputy surveyor of the said county, (who'was dead before the bringing of this suit,) of a'survey made, on the 9th day of March 1802, by the said deputy surveyor, for Philip Lawrence, Jun., on his actual settlement upon the land in dispute, and offered to follow up the same, by evidence proving in add.tion to that already given, that the aforesaid 100 acres allotted to the said Philip, by the division line aforesaid, were laid off to him on the eastern part of the tract of land surveyed, by the deputy surveyor aforesaid, and that the said Philip Lawrence, from the time of the said division, continued in possession of the part laid off to him for more than twenty-one years afterwards, and before the bringing of this suit, and paid all the taxes thereof during that whole period of time. The counsel of the said defendant at the same time stating that the said evidence was offered for the purpose of showing the extent of the possession of Philip Lawrence, and of claiming title to the whole of the land laid off to him as aforesaid, within the survey made by the deputy surveyor, by the statute of limitations.</p> <p>This evidence, so far as respects the survey offered, was objected to by the plaintiff, bn the ground, that no authority was shown by which the deputy surveyor made it. And the court sustained the objection and sealed a bill of exception.</p> <p>The plaintiff also gave in evidence the record of an ejectment, Timothy Pearceable, lessee of James Hunter v. Philip' Lawrence, tenant in possession, in the circuit court of Allegheny county, No. 62, of September term, 1S0.2. February 2d, 1823, arbitrated. February'22d, 1823, arbitrators chosen, report of arbitrators in favour of defendant, and judgment for costs March 17th, 1823. On the part of the defendant, Joseph Hoops and William M’Callister were examined as to examining and tracing the division line, and for the purpose of ascertaining the northern boundary of the warrant. Mr M’Callister proved that he found no marks on the division line older than twenty years.</p> <p>The defence relied on was, that by the plaintiff’s own showing the title to the land was not in the plaintiff; and unless the plaintiff has title he cannot recover: that the defendant is protected by the statute of limitations to the whole extent of his claim.</p> <p>The court below was of opinion that the plaintiff was entitled to recover all the land except what was embraced within the defendant’s improvement, and of which he had adverse possession for twenty-one years.</p>

<p>ERROR to the common pleas of Crawford county.</p> <p>David M’Kee against David Snyder. Ejectment, on the trial of which James Phillips, who had purchased the- land pendente lite, was admitted to defend, Snyder having left the land.</p> <p>The original title was admitted to have been in Griffith & Wallace. The plaintiff then gave in evidence a deed from Griffith & Wallace, to him, dated December 11th, 1818, for land covering that in dispute, and rested.</p> <p>The defendant gave in evidence a contract, dated August 10th, 1805, from John M’Dowel and the plaintiff to Robert M’Dowel for ten acres, for 20 dollars; also the receipt of plaintiff, November 6th, 1809, for 20 dollars. He then proved the death of Robert M’Dowel, about the year 1812, the release by the heirs to John P. M’Dowel, another heir of the deceased, April 5th, 1825, and the conveyance by John P. M’Dowel to Snyder, September 18th, 1833.</p> <p>The plaintiff then offered to prove, that in October 1831, he was present when an agreement was entered into, by parol, between M’Kee, the plaintiff, and John P. M’Dowel, that the latter sold to M’Kee the land in dispute, for which M’Kee was to obtain a credit for M’Dowel with W. Foster, for 50 dollars, which M’Kee agreed he would do; that M’Dowel said it "was not necessary to have writings, as when M’Kee brought the receipt from Foster, the original article, M’Kee, &c., to M’Dowel, would be given up. The plaintiff offered to follow this up by evidence, that Snyder was aware of M’Kee’s contract with M’Dowel; and that the 50 dollars were paid to Foster by M’Kee, on the 14th of October 1821.</p> <p>To which testimony the defendant’s counsel objected; the court sustained the objection and the plaintiff excepted. Verdict and judgment for defendant.</p>

This was an action against the Reliance Transportation Company as common carriers on the Pennsylvania canal.

David Rees against Humphry Waters and Acha,his wife. This was an action of ejectment, for 51 acres of land, which was the estate of the defendant’s wife.

Ahaz French against Michael Mullen. Assumpsit on a promissory note. Mullen was the defendant in the court below, and was sued there by French, upon his endorsement of a note of 300 dollars, drawn by Daniel Infield in favour of David Medes, payable ninety days after its date, which was the 29th of October 1835, at the Chautauque County Bank, in James Town, state of New York.

<p>In an action of ejectment, under the plea of “not guilty,” the defendant may prove that the plaintiff was dead at the time when the suit was instituted.</p> <p>A power to take care of land, carries with it a power to pay the taxes assessed upon it, or to redeem it if sold by the treasurer as unseated, for the payment of the taxes; and in such case the death of the owner is not such a revocation of the power as will make void a redemption of the land by such agent, after a sale of it, as Unseated.</p> <p>The right to redeem land, sold as unseated, for the payment of taxes, should not be narrowed down by a strict construction.</p>

Solomon Schoyer against Benjamin A. Fahnestock & Company. On-the 15th of April 1837, Brewster, Newton & Spencer drew a bill, payable to bearer, on Benjamin A. Fahnestock & Co., for 350 dollars worth of dye stuffs, which was accepted by Benjamin A. Fahnestock & Co. Brewster, one of the drawers, testified on the trial, that he drew the bill, and went to the counting-house of the defendants, and told them that “ he wanted them to accept the bill on its face; that he wanted to…

<p>ERROR to the district court of Allegheny county.</p> <p>Thomas Blackmore against James Patterson. This was an action of ejectment for two lots of ground in the borough of Birmingham. The plaintiff gave in evidence a regular legal title to the lot in dispute, vested in him. The defendant relied upon a title derived from a sale of the lots by the treasurer for taxes, and to support it gave in evidence an assessment of taxes for the year 1812, and a return of them as unseated in the name of James Smith, a sale by the treasurer, and a deed to the defendant dated July 20, 1818. To rebut this the plaintiff proved that previously to 1812 Dr. Bed-ford was the owner of seventy-five acres of land and that he laid off a part of it into lots, some of which were enclosed and some not, of which the two in dispute were a part: that during the years 1811,1812 and 1813 a tenant occupied and resided upon the seventy-five acre tract: they then gave in evidence the assessments and duplicates to show that for those years the seventy-five acres were taxed as one tract in the name of “John Irwin or Dr. Bedford.” There was no positive evidence of the payment of the taxes assessed.</p> <p>The court below (Grier, president,) was of opinion that the plaintiff was entitled to recover; that if the whole tract of land was seated and had a tenant residing upon it with property enough to pay the tax) and there was no evidence of Dr. Bedford having sold the lots in dispute to James Smith, or any body else, there was a necessary presumption that the tax had been paid.</p>

• ERROR to the common pleas of Fayette county. . Benjamin Martin against John Goucher. Ejectment for a tract of land.. ■ On the 25th'of June 1835, the parties to this suit, entered into a written agreement, by which the plaintiff sold the land in dispute to the defendant, for the consideration of 2340 dollars, in six equal and annual payments.

Leckey Murray’s executors against William J. Kelsey and Charles Kelsey. Ejectment for a tract of land. The plaintiffs gave in evidence a regular legal title, for the land in dispute, from the commonwealth to- Dr. Leckey Murray, deceased, and his will devising the same to them to be sold.

This was an indictment against the commissioners of the county of Crawford, in which the charge was thus laid:— “ That Jesse Rupp, late of the county aforesaid, innkeeper, Arthur Johnson, late of the same county, farmer, and Edward A-Reynolds, late of the same county, merchant, the duly elected and appointed commissioners of Crawford county aforesaid, and as such, acting on the first day of January, in the year of our Lord, one thousand eight hundred and thirty eight, with…

John Kelly against William Graham. This was an action of ejectment for 240 acres of land, in which the defendant took defence for 60 acres. The plaintiff gave in evidence a patent for the land, dated the 8th of September, 1789, and which called for the Allegheny River as a boundary.

In an action for a nuisance created by obstructing a stream made navigable by law, if it appear that the injury to the plaintiff arose from causes which, might have been foreseen, such as ordinary periodical freshets or the collection of ice, he, whose superstructure is the immediate cause of the mischief, shall be liable to damages. But if the injury be occasioned by an act of Providence, which could not have been anticipated, the defendant would not be liable.

<p>ERROR to the common pleas of Allegheny county.</p> <p>Abraham Adams against William Rogers. This suit was brought to recover damages for the alleged breach of a contract for the delivery of two hundred barrels of flour, which the plaintiff alleged .was not superfine. The contract was as follows:</p> <p>"Received, May 10th, 1838, of Abraham Adams, 200 dollars in part pay for two hundred barrels of wheat flour, warranted to be superfine, to be delivered in Pittsburgh, in perfect shipping order, on or before the 25th of May 1838, the price of the flour to be five dollars and thirty-seven cents. William Rogers.”</p> <p>The proof was that the flour was delivered to the plaintiff, who sent it to Philadelphia, where it was inspected and condemned and . sold below the market price of superfine flour.</p> <p>There was no inspector of flour appointed for Pittsburgh at the time, but the defendant called several witnesses to testify as to the quality of the flour, and some of whom proved that the standard of superfine flour at Pittsburgh and Philadelphia was different; that what would be estimated as superfine at Pittsburgh, would not pass as such at Philadelphia.</p> <p>The plaintiff contended that the inspection at Philadelphia was the test by which the quality of the flour was to be judged, and the fact of its having been condemned by the officer legally appointed for its inspection was conclusive of its quality.</p> <p>The defendant, on the contrary, insisted that its quality was to be judged of at the place of its delivery, under the contract, and .according to the standard there.</p> <p>■ The court below adopted the positions taken by the defendant, and so instructed the jury. Verdict and judgment accordingly.</p>

<p>ERROR to a special court of Fayette county.</p> <p>John F. Braddee against Basil Brownfield. This was an issue directed to try the fact whether the plaintiff had made a payment ■of 1630 dollars to the defendant on account of certain judgments:</p> <p>Wm Swearingen, Jun., affirmed.—On the 4th of April 1838, Mr Brownfield came to my house, and I paid him 1630 dollars for John F. Braddee. Mr Brownfield wrote a receipt and gave it to •me. I witnessed the receipt. This is the receipt. I got the money from Dr Braddee, and at his request paid it to Mr Brownfield. He wrote the receipt and signed it in my presence.</p> <p>“Reseaved of Dr John F. Braddee, by the hands of Wm. Swearingen jr., the sum of sixteen hundred and thirty dollars, to be credited on sertain judgments in the common pleas of Fayette county which I hold against him viz no 47—48—40—50 of June term • 1834 as witness my hand and seal this the fourth day of Aprile 1838.</p> <p>“Basil Browneield.”</p> <p>“ Test William Swearingen jr.”</p> <p>The defendant then called a number of witnesses to prove facts ' tending to show that the money was not paid, and that the testimony of Wm. Swearingen, Jun., was not true.</p> <p>The plaintiff then offered to prove that the general character of Wm Swearingen was good. To this evidence the defendant objected, because they had given no evidence against his personal character.</p> <p>Per Curiam.—Your whole defence rests on showing the witness to be perjured; I have never known such testimony refused, where the imputation of perjury is cast upon the witness. Let the testimony be heard; defendant’s counsel except and court seal this bill.</p>

• ERROR to the district court of Allegheny county. ' James Harwood, John B. Howell and Walter Fernandez, receivers of the United States Insurance Company of Baltimore against William Stewart.

James Burns, Jun., against Dunning R. M’Nair. This was an action for money had and received by the defendant as agent for the plaintiff. The plaintiff and defendant and several others owned a line of stages between Pittsburgh and Chambersburgh.

gheny County. William Robinson, Esq., administrator de bonis non with the will annexed of John Wilkins, deceased, presented his account of the administration of the said estate to the orphans’ court, in which he claimed certain credits, for reasons which are fully stated in the report of the auditors to whom the account was referred by the court:— The accountant further claimed credit for the following items, to which the auditors considered he was not entitled as…

William Wallace against Zera Coston and Jane, his Wife. The wife of the defendant, previously to her marriage, was seized in fee of a ground rent, in the city of Pittsburgh, of 156 dollars per annum, and conveyed it to Nathaniel Holmes, “ In trust, that the said Nathaniel and his heirs shall receive the rents which shall accrue out of the premises, and shall, during the lifetime of the said Jane, pay over the same to her or to her agent, for her sole and separate use,…

Daniel Youngs against G. Johnston Ball. Writ of error by each party. The case is very fully stated in the opinion of the court.

The -Commonwealth, for the use of the County of Adams, against ■Charles C. Denniston.

Richard Y. Thorne & Co. against Frederick R. Smith. This was an action founded upon a bill of exchange drawn by George R. Smith upon Frederick R. Smith, and by. him endorsed and held by the plaintiffs.

<p>If the direction by a testator in his will, to sell his real estate be not absolute but qualified, and the qualification which he annexes, prevents a sale of it until the course of descent is changed by death, it will descend as land and not money.</p>

John F. Braddee against Basil Brownfield. This proceeding originated before two justices of the peace to obtain the possession-of a tract of land purchased by the plaintiff at sheriff’s sale as the property of Joseph Collins, and was brought into the court of common pleas, by the defendant, Basil Brownfield, upon his affidavit, “ that he was in possession of and held the land in controversy by a title derived from Joseph Collins, before the judgment against him under which…

William Arthurs against John Patterson. Covenant. By the agreement upon which this action was founded, the plaintiff covenanted to convey to the defendant two lots of ground, Nos. 14 and 15, of Irwin’s Plan of Lots, in Pitt township, now part of the city of Pittsburgh, in fee simple, clear of incumbrances, in consideration of 1000 dollars, payable in instalments. By the plan referred to the lots were described as being 25 feet each in width and 109 feet in depth.

Robert Gibson against James Robbins. This was an action of ejectment for 200 acres of land. The parol evidence in the case, was exceedingly voluminous and contradictory, and a statement of it hero would not be necessary to the understanding of any principle decided in the cause. These facts, which refer to the points decided, are sufficiently .stated in the opinion of the court.

Alexander Summers against Oliver Wallace. Ejectment for a small piece of land with a saw-mill upon it. The original title admitted.to have been in James Brownlee, who conveyed the same to Thomas and Alexander Summers, and upon the death of Thomas he devised his interest to Alexander Summers, the plaintiff.

The Supervisors of Barnett Township against The Commissioners of Jefferson County. Jlssumpsit. Barnett township, previously to February sessions of the court of quarter sessions of the peace of Jefferson county in the year 1832, formed a part of the territory of Rose township. At that session of the court, Rose township was divided, and Barnett township erected into, a new township out of it.

Isaac Robinson and Moses M’Clean against George Zollinger, Issue directed by the orphans’ court, to try whether the plaintiff, Isaac Robinson, is' duly and legally the guardian of Louisa H. Myers. ' 1 Henry Myers, by h:s last will and testament, devised certain estate to his' daughters, Loiiisa H. Myers and Mary Ann Myers, and. appointed Mary Myers and George- Zollinger'to be their guardians and the executors of his will, by which he directed, “ that if either of the said…

<p>ERROR to the common pleas of Dauphin county.</p> <p>This was an action of trover and conversion brought by Sarah Ann Guier, administratrix of Adam Quier, deceased, against Franklin Wright, and Henry M. Bayard, for a large quantity, of cord wood cut upon the land of the plaintiff’s intestate.</p> <p>The legal title to the land was clearly in the plaintiff, and it was situate near to the “ Victoria Iron Works” of the defendants, and, adjoining their lands.</p> <p>The question of law raised in the case was, whether the defendants had not such a colourable title to and possession of the land, as protected them from a recovery in this form of action. Their evidence on that subject was as follows:</p> <p>The defendants then called William Clark, Jun., a witness, who being duly sworn said, I believe Cardón started Victoria Iron Works in the year 1829; I went to live at the works in January 1831; I know the tract of land in question, Halberstadt- or Cooper tract; Cardón told me this tract of land belonged to him. We had wood cut on it, and made coal and used the coal, made rails on it. We had a great deal of chestnut oak bark taken from it and hauled .to the tannery by Cardon’s hands and teams; he sold the bark. Timber was taken from it for building purposes; had shingles made on it. They were cutting on this land at the time I went there, Mr. Cafdon’s hands, that continued until the spring of 1833, when I left there.</p> <p>On cross examination by plaintiff’s counsel, this witness further said:</p> <p>No improvement on this tract; there had been a house, none standing at this time; do not know who built it; it had fallen down before Cardón came there; do not know of any person beside Car-don cutting timber on this tract. Cardón never told me how he claimed this property; the north line of the tract is within a quarter of a mile of the furnace; I knew pretty near where the north line ran; I think there was an improvement on the George Cooper tract; I employed hands for Cardón to ci.it wood on this land; Cardón was in possession of Victoria Iron Works in May and June 1832; he was then cutting off bark from this land.</p> <p>The defendants then gave in evidence the record of a judgment in the common pleas of Dauphin county to August term 1832, No. 75. The President Directors and Company of the Bank of Pennsylvania v. Alexander Cardón. May 18, 1832, Judgment for 22,750 dollars, real debt 11,375 dollars. Also, a fieri facias on the above judgment to November Term 1833, No. 47, with the following levy and return, indorsed, viz.</p> <p>“ Levied on two certain forges and one furnace, called Victoria Iron Works, and about 1600 acres of land attached thereto, situate in Rush township, Dauphin county, bounded by lands of the heirs of Joseph Weim on the west, Peter’s Mountain on the north, lands now or late of George Shiley’s heirs on the east, and lands of the Dauphin and Susquehanna Coal Company on the south, on which is erected, in addition to the forges and. furnace, a convenient frame house, &e. &c.” *</p> <p>Also, venditioni exponas to January Term 1834, No. 15, returned:—“ Real estate sold for 1.2,202 dollars 73 cents, after deducting costs. J. Fox, Sheriff.”</p> <p>Also, deed from John Fox, Esq., sheriff of Dauphin county, to Henry M,/Bayard, for Victoria Iron.Works and 1600 acres of land, bounded and described as in the levy-deed dated January 28, 1834, and recorded.</p> <p>Also, deed from Henry M. Bayard to Franklin Wright for one moiety of Victoria Iron Works and lands thereto belonging, dated October 17, 1835, and recorded.</p> <p>Defendants then called William Clark, Jun. again, who, upon being shown the above mentioned deed from Sheriff Fox to Henry M. Bayard, said, this land in question is included in the boundaries described in that deed.</p> <p>The court below (Blythe, president) thus instructed the jury:</p> <p>“It appears that Cardón cut wood on this land two or three years; that defendants purchased Cardon’s interest in Victoria Iron Works, with the lands belonging thereto; that, agreeably to the testimony of William Clark, Jun., the description in the levy under which Cardon’s property was sold, would include this land; that the defendants cut wood on this land after they bought, one season. It appears to me that defendants have not shown such a possession of the land as would make them liable to an action of ejectment, and that the objection is not valid. If you find for the plaintiff, you will assess the value of the wood converted to their own use by defendants, fixing the value at what it was practically worth at the place where it was converted. You will not allow any thing for the trespass in cutting the timber, that is waived by bringing the action in this form.”</p>

John Johnston’s administratrix, for the use of Henry W. Hinckly, against Henry Walters. This was an action of debt upon a sealed note, to which the defendant pleaded payment, with leave, &c. and set off: to which the plaintiff replied non solvit, and that the set-off was barred by the statute of limitations. The facts of the case are fully stated in the opinion of Justice Rogers, and for the former report of this case, see 8 Watts 260.

<p>Upon the trial of an issue involving the validity of a sheriff’s sale, it is competent to give in evidence all the purchaser said or did, which was calculated to prevent persons from bidding.</p> <p>If it appear upon the trial of a cause, that a person offered as a witness, was equally interested in the subject-matter of the action with the defendant, at the time of its commencement, he can not, by .a subsequent release of his interest, discharge himself from liability for costs, and thus make himself a competent witness.</p> <p>The purchaser, of a fraudulent title, must he able to show clearly, that he is a Iona fide purchaser without notice, and has paid the purchase-money, of which the receipt of the vendor will not be sufficient.</p>

<p>ERROR to the common pleas of Huntingdon county.</p> <p>Martin Orlady against George M’Culloch and Thomas M’Namara, trading under the firm of M’Culloch & M’Namara. This was an fiction of debt, in which the writ was served upon M’Namara alone; and the plaintiff filed a declaration and referred the cause to arbitrators, who made a report in favour of the plaintiff for four hundred and twenty-six dollars. The defendant did not enter an appeal, but after execution issued, he came in and asked the court to set aside the award on the ground that the declaration contained no cause of action.</p> <p>The court below (Burnside, president, dissenting) set aside the award.</p>

<p>ERROR to the special court of common pleas of Cumberland county.</p> <p>This was an action of replevin by Jacob B. Lyon against George Houk and Peter M’Laughlin, for one hundred pieces of bloom iron of the value of 200 dollars. Declaration in common form. The defendant George Houk avoyved the taking upon a distress for rent upon a lease of the premises, when the distress was made, dated the 13th June 1836, as follows:</p> <p>“ Article of agreement, made and entered into betwixt George Houk and George Himes of the one part, and Jacob B. Lyon of the other part. The said Houk and Himes agree to let and lease to the said Jacob B. Lyon, Salome Forge and sawmill, with all the water privileges thereunto belonging, situate in Dickinson township, Cumberland county; said lease to commence the fifteenth of this present month, and to expire on the first of April 1838. The said Houk and Himes also let and lease to the said Lyon for the period aforesaid, the houses now occupied by Michael Mullan and Philip M’Farlane, also the smith-shop and coal and iron houses, and all the privileges belonging to said houses near the said forge, the said Houk reserving to himself the privilege of passing and re-passing through the said forge and saw-mill yards to his fields and meadows, also the ducks and geese of the said Houk to have the entire and exclusive use of thq dam of said forge. The said Houk and Himes agree and bind themselves to raise the main wing of the dam of said forge, sufficiently high to swell the water back to the creek common water mark. They also agree to pay half the expense of removing the gravel-out of the head and tail races to a depth that the said Lyon shall consider sufficient. They the said Houk and Himes agree to give the said Lyon wood land of the Lusk tract of mountain land during the period of the lease aforesaid at the rate of five dollars per acre, the wood to be taken square across the land along the lines running east and west. They also agree to build a frame house eighteen by twenty-six feet, one and a half stories high, to be finished the fifteenth of July next. They also agree to give sufficient ground for gardens, for the houses aforesaid, and allow the tenants sufficient fire wood of dead and fallen timber as said Houk shall direct. In consideration of the leases and privileges aforesaid, the said Jacob B. Lyon agrees and binds himself to pay to the said George Houk and George Himes and their assigns, at the rate of five hundred dollar,s per annum, to be paid as follows : one hundred and twenty-five dollars to be paid on the first of July next, and one hnudred and twenty-five dollars on the 15th September- next, and one -hundred and twenty-five dollars three months thereafter, and every three months to the first of April 1838. The said Jacob B. Lyon is to find his own tools and to keep up repairs at his own expense. The said Lyon agrees to keep the head gates at the dam in repair, and to deliver up the premises and houses aforesaid, to the said Houk and Himes on the said 1st of April 1838, in as good order as they are now, wear and tear and accidents excepted. In testimony whereof the said parties have hereunto set their hands and seals, this 13th day of June 1836.”</p> <p>Upop this lease the defendant claimed 125 dollars, rent for three months, due in advance on the 15th March 1837.</p> <p>The plaintiff then gave in evidence the following agreement :</p> <p>“Article of agreement made and concluded this 13th day of February 1837, between George Houk, of Dickinson township, Cumberland county, of the one part, and A. G. Ege,-of Carlisle, in said county, of the other part, witnessed), that the said George Houk, for the consideration hereinafter mentioned, doth covenant and agree to and with the said A. G. Ege, that he the said George Houk will, on or before the 5th of April next, grant, convey and sufficiently assure to the said A. G. Ege, his heirs and assigns, by deéd in fee simple, with special warranty clear of all incumbrance, all the said George’s undivided half part of Salome Forge, and all the lands connected therewith or in any wise appertaining thereto with the appurtenances. Same consisting of the forge tract, containing 120 acres, bought at sheriff’s sale, in company with John Moore and George Himes—a tract containing 60 acres, and purchased after the first mentioned one at sheriff’s sale by the said Himes, Houk and Moore. Also, the Lusk tract of mountain land, containing 123 acres, more or less, bought at sheriff’s sale by said Houk, Himes and Moore, and also the saw-mill tract, containing 45 acres, more or less, purchased by said Honk and Himes—said four several tracts having all been sold by the sheriff as the property of Adam. Houk, deceased—and the interest which the said John Moore had in .the said property having been conveyed by him to said George Houk, who thereby became an equal owner of said property with said George Himes. The said George Houk further agrees that he will give possession of the said property hereby covenanted to be conveyed at and upon the execution and delivery of the deed aforesaid. And further that he will transfer and assign to the said A. G. Ege, all his the said George Houle’s interest in the lease made by the said Houk and said George Himes to Jacob B. Lyon of a portion of the forge property aforesaid, which said lease of the forge, &c., terminates on the 1st of April 1838, said Houk covenanting that the whole .interest in said lease is in him by the written agreement of the said George Himes, and that he will assign his said interest to the said Ege when he executes the deed as aforesaid. It being agreed that all fences to be made and repairs to be completed, by any agreement heretofore made by the said George Houk, are to be made and completed by him the said George and not by the said A. G. Ege. In consideration whereof the said A. G. Ege covenants and agrees that he will pay therefor to the said George Houk, the sum of 5200 dollars, to be paid as follows, to wit: 2700 dollars on or before the 5th of April next, when the said deed, &c,, is to be delivered, and the remaining 2500 dollars on or before the 1st of April 1838, without interest. And the said Ege further agrees that he will, on the delivery of the deed aforesaid to him by the said Houk, demise and lease unto the said George Houk from said day of delivery, until said of 1st April 1838, all the arable and cleared land belonging to said forge property, (not included in the lease aforesaid to the said Jacob B. Lyon,) with liberty to use dead trees and tops of trees for fire wood, and timber for rails. The said Ege to charge no rent for said lease; it being understood that Himes has rented his half of said arable land to said Houk until the 1st of April 1838, with same privileges as those, to be granted in said lease by A. G. Ege, as herein before stated. It is further understood and agreed, that the taxes for the present year are to be paid as follows, to wit: A. G. Ege pays the tax for 1837, for that part of the property leased as aforesaid to Jacob B. Lyon, and the said George Houk pays the tax for the said year 1837 for the residue of said property. It is further understood, that the said Houk is entitled to the rent from J. B. Lyon till the 5th of April next, ensuing the date hereof, the residue he is to assign to said Ege. And further, that the rails cut by said Houk are to be used only for fencing the premises and completing his contract with said George Himes, and for no other purpose. Witness our hands and seals, the 13th of February, 1837.”</p> <p>It was admitted that this agreement was duly executed and fulfilled on the 5th of April 1837; on the 3d of March 1837, Jacob B. Lyon and A. G, Ege entered into the following agreement:</p> <p>“ Memorandum of an agreement made this 3d day of March 1837, by and between Jacob B. Lyon, of Dickinson township, Cumberland county, and state of Pennsylvania, of the one part, and Andrew G. Ege, of the borough of Carlisle, county and state aforesaid, of the other or counter part, witnesseth, that the said Jacob B. Lyon, for and in consideration of the covenants to be kept and performed by the said A. G. Ege, doth transfer, assign and set over unto the said Ege, the right he enjoys under lease from George Houk and George Himes, dated the 13th of June 1836, of Salome Forge, which is by its terms to continue until the 1st of April 1S3S, at and on the same terms he the said Lyoti has and holds the same, and to deliver the possession of said forge and premises on the 15th of March instant, and in consideration thereof the said Ege agrees to take the several articles of personal property at said forge, which belongs thereto and is used therewith, together with the cord wood in rank set up in pit or pits, the cord wood at sixty cents per cord, and the other personal property at the fair cash valuation thereof, a schedule and valuation thereof to be made out and attached to this agreement—also the wood lease of timber land which said Lyon has from Dr. W. C. Chambers, at the rate of five dollars per acre for the residue thereof. The said Ege hereby covenants and agrees to pay the price of said property in two equal payments, the first on the 1st of April, and the other on the 1st of May, ensuing the date hereof, obligations to be given therefor when the possession is delivered as above specified—notice to be given by said Lyon to the wood choppers to cease chopping immediately.</p> <p>“In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.”</p> <p>Deposition of Michael Mullen: “Cumberland county, ss.—Agreeably to the annexed notice, personally came before the subscriber, a justice of the peace in and for said county of Cumberland, Michael Mullen, who being duly sworn according to law, doth depose and say:—I was authorised by A. G. Ege to make a tender of the rent of the forge due up to the 1st of April 1837 to George Houk, and I undertook to make the tender some time before the distress was made of the goods of the said A. G. Ege by the said George Houk, at the saw mill along side of the forge; I was at the saw mill, and Mr Houk came along riding on horseback, and I told him that I had the money for the rent due up to the 5th of April. I had it in specie; I had not time to count it, as he rode off; when he was going away he said he would have nothing to do with it or with A. G. Ege; I do not recollect which; the amount was either 27 dollars and some cents, or 28 dollars and some cents; I understood from Mr Ege that it was the rent up to the 5th of April 1837. I had the money yet when Mr M’Glaughlin made the distress, and told him that morning that he was ready and willing to pay it; I afterwards returned the money to Mr Ege’s manager, Mr Beelman.”</p> <p>Cross-examined by George Houk, Esq., the witness further saith:—</p> <p>“ I understood that Mr Lyon had rented the property of Mr Houk; I understood that Mr Lyon was to pay 500 dollars a year, and it was to be paid quarterly; I understood from Mr Lyon and Mr Ege that Mr Ege had bought Mr Lyon’s lease; I did not get time to show the money to Mr Houk, because Squire Houk rode off after I told him, before I had time to unfold it; on the morning that the distress was made, I was at the forge in company with M’Glaughlin, the constable, and George Houk, about fifteen minutes; I told Mr M’’Glaughlin not to make the levy, that I had the money for the rent up to the 5th of April; I stated to M’Glaughlin that I had 27 dollars and some cents, or-28 dollars and some cents, I do not recollect which; Mr M’Glaughlin refused to take it, and asked above 100 dollars; I did not show them any money at that time or any other; Mr Ege had directed me not to suffer the property to be levied on and removed or taken away, and at the risk of his, the deponent’s, life he would not suffer it to be done, (it is admitted by the parties themselves that the blooms distrained were the property of J. B. Lyon.) I think the levy was made about the 17th, or from that to the 20th of March 1837, Houk and me, it appears to me, we might have had a conversation between the time we met at the saw mill and the time the levy was made, but I do not remember it; Mr Houk was riding at a walk the morning that I spoke to him at the saw mill, he did not stop but drawed up the mare; then when I pulled it out, he rode on, and said he would have nothing to do with it or with Galbraith Ege, I do not know which; I cannot recollect the time, but think it was not more than two days from the time I saw Houk at the forge that the levy was made. Further saith not.”</p> <p>It was agreed that if the tender made by A. G. Ege to George Honk, as stated in the deposition of Mullen, followed up by bringing the money into court, would under any state of pleading avail the plaintiff, it shall be in like manner available, under the present state of the pleadings. The money tendered admitted to be in court.</p> <p>The Court delivered the following charge to the jury, which was excepted to by both parlies.</p> <p>“ George Houk and George Himes being the owners of a forge property, leased it by their indenture of 13th of June 1836,'to the plaintiff, J. B. Lyon, at an annual rent of 500 dollars, payable quarterly in advance.</p> <p>On the 13th of February 1837, George Hook entered into an article of agreement with A. G. Ege for the sale of the property. By the terms of the article, which were duly complied with, Houk was to render a deed for the property, and possession, on the 5th of April following. He was also to be entitled to the rent from Lyon after the 5th of April—Houk to have it till that time. Ege having purchased the lease of Lyon (on the 3d of .March 1837), took possession of the property on the 15th of March; on the 16th or 17th of the same month, according to the deposition of Mullen, Ege caused a tender to be made to Houk of the proportion of rent which he considered himself entitled to, on the then current quarter, namely, up to the 5th of April. Houk, disregarding the tender, distrained the goods of Lyon on the premises for the rent of the entire quarter. Lyon replevied the goods, and the defence to the replevin is, that there was no rent in arrear. The plaintiff contended that the tender by Ege of the proportion of rent due to Houk, extinguished the right of the latter to distrain—the court instruct the jury that under the agreement between Houk and Ege, Houk was entitled to 28 dollars 67 cents, as his proportion of the rent of the quarter in dispute, (that the balance belonged to Ege,) and that the tender made by Ege did not extinguish his claim, or his right of distress, although at the time of making the tender and distress, he knew that Ege was in possession of the premises. It might have been otherwise had he been privy to the agreement between Ege and Lyon, by which Ege covenants to pay the rent—or had notice of such agreement been given to him.</p> <p>“The jury will therefore find for the defendant,and that there is rent in arrear 28 dollars 67 cents, with interest from the date of distress—and that the value of the goods distrained is of the same amount.”</p> <p>The plaintiff moved the court for a new trial, on the ground of misdirection to the jury, which was overruled on the following ground:</p> <p>“ In this case the plaintiff moved for a new trial, on the ground that the court erred in charging the jury that the tender made by Ege to Houk was not available to him in this suit. That the charge was correct, having regard to the evidence in the cause, I am welL satisfied, for though in the charge the fact-was assumed, through misapprehension, that Ege was, in possession of the demised premises at the time of the tender and distress, there was no evidence whatever of the fact—nothing to be left to the jury from which they could infer the fact. It is not necessary, then, to inquire whether the tender would have been good, had Ege been in possession of the premises, as the court supposed he was, but merely whether it was good, Ege not being in possession, and that it was not, is quite certain. Therefore, the motion for a new trial on the part of the plaintiff is dismissed.”</p>

<p>ERROR to the common pleas of Schuylkill county.</p> <p>The Commonwealth of Pennsylvania ex relatione Ovid F. Johnson, Attorney-General, against Samuel D. Leib.</p> <p>The proceeding in the common pleas was a quo warranto issued upon the suggestion of the attorney-general, to show by what warrant the defendant claimed to exercise the office of associate judge of the court of common pleas of Schuylkill county.</p> <p>Suggestion. “ Be it remembered that at a court of common pleas, held the thirty-first day of March in the year of our Lord one thousand eight hundred and forty, in and for said county, comes Ovid F. Johnson, attorney-general of the said commonwealth, by F. W. Hughes, his deputy in and for said county, and on behalf of said commonwealth, gives the said court here to know and be informed that, by the amended constitution of said commonwealth, which was agreed to in convention on the twenty-second day of February in the year of our Lord one thousand eight hundred and thirty-eight, and adopted, ratified and confirmed by the citizens of the said commonwealth on the ninth day of October of said last-mentioned year; and the fact of its being so adopted, duly declared and proclaimed by the governor on the eleventh day of December in the year of our Lord one thousand eight hundred and thirty-eight, it is provided, inter alia, in the second section of the fifth article to the said constitution as follows, to wit: The judges of the supreme court; of the several courts of common pleas, and of such other courts of record as are or shall be established by law, shall be nominated by the governor, and by and with the consent of the senate, appointed and commissioned by him. The associate judges of the court of common pleas shall hold their offices for the term of five years, if they shall so long behave themselves well. That by the schedule to said constitution it is provided, that the legislature shall divide the associate judges of the said state into four classes, to be arranged according to the seniority of their commissions. That it appears from said amended constitution and schedule, and from the decision of the supreme court of said commonwealth, in the case of the said commonwealth against Oristus Collins, that from the said time of the adoption of the said amended constitution as aforesaid, until the first day of January 1839, the governor of said commonwealth had no authority to appoint and commission any judge of any court of common pleas for said commonwealth, for, or longer than until the said first day of January 1339. That between the time of the adoption of said amended constitution as aforesaid and the said first day of January 1839, Samuel D. Leib, Esquire, of said county, was appointed and commissioned an associate judge for said county, in the room of Daniel Yost, by virtue of a commission duly issued by Joseph Ritner, then governor of said commonwealth, bearing date the 29th day of December 1838, to have and to hold said office of associate judge so long as he should behave himself well. That by an act of the legislature of this commonwealth, entitled, “ An act supplementary and explanatory of an act entitled an act to classify the associate judges of the state,” it is, in the first section thereof, among other things, provided, that the commission of the said Samuel D. Leib shall expire on the 27th day of February 1840. That notwithstanding the provisions of said amended constitution and schedule, and said decision of the supreme court, and notwithstanding the said provision of the first section of said act of assembly, the said Samuel D. Leib now continues to hold, use and exercise the office of associate judge of said county, without warrant or lawful authority for so doing, whereupon the said attorney-general, on behalf of the commonwealth of Pennsylvania, gives the said court here to understand and be informed, that the said Samuel D. Leib, from and since the first day of January, A. D. 1839, hath used and exercised, and still doth use and exercise the office of associate judge of said county without any warrant or lawful and constitutional authority therefor, which said office, and the powers, authorities, emoluments and franchises thereto belonging and appertaining, the said Samuel D. Leib, during all the time aforesaid, hath usurped and still doth usurp upon the government of said commonwealth to the great damage and prejudice of the lawful authorities of the same. Whereupon the said attorney-general, by his said deputy, makes a suggestion and complaint herein and for due process of law against the said Samuel D. Leib in this behalf to be made, to answer by what warrant he claims to have, use, exercise and enjoy the aforesaid office.”</p> <p>Schuylkill County, ss. F. W. Hughes being duly sworn, says, that the above suggestion as to all matters of fact contained therein is true to the best of his knowledge and belief.</p> <p>F. W. Hughes.</p> <p>Sworn before me this 31st of March 1840, Wjj. F. Dean, J. P.</p> <p>Writ. “ Schuylkill County, ss. The commonwealth of Pennsylvania to the sheriff of Schuylkill county, Greeting: We command you that you summon Samuel D. Leib, so that he be and appear before our county court of common pleas, to be holden at Orwigsburg, in and for the county aforesaid, on the seventeenth day of April 1S40, and then and there to show by what authority he claims to exercise the office of associate judge in the said county of Schuylkill, and have yon then and there this writ. Witness the Honourable James M. Porter, Esquire, President of our said court at Orwigsburg, the thirty-first day of March, in the year of our Lord one thousand eight hundred and forty.”</p> <p>Plea to the jurisdiction. “And the said Samuel D. Leib, in his own proper person, comes and says that this court ought not to have or to take further cognizance of the action aforesaid, because he says that the said supposed causes of action, and each and every of them (if any such have accrued to the said commonwealth) are not within the jurisdiction of, or cognizable by, this court, but that the supreme court of Pennsylvania have exclusive jurisdiction thereof, and not this court, and this the said Samuel D. Leib is ready to verity. Wherefore he prays judgment whether this court can or will take further cognizance of the action aforesaid.”</p> <p>“And now, May 27th 1840, comes Ovid F. Johnson, attorney for said commonwealth by F. W. Hughes his deputy, and avers that that court has jurisdiction, and by law may take cognizance of the matters contained in the said suggestion, and prays that the said plea of the said respondent to the jurisdiction of this court in manner and form as above pleaded may be overruled, and that the said respondent be required to answer over in some better manner, and this he is ready to verify.”</p> <p>Upon the question as to the jurisdiction, the court below declared the following opinion:</p> <p>“ To the writ of quo warranto issued to the respondent, requiring him to show by what authority he claims to hold and exercise the office of associate judge of the court of common pleas of Schuylkill county—the respondent has pleaded that this court has no jurisdiction of the matters complained of, &c., and prays the dismissal of the proceedings upon that ground.</p> <p>“ The attorney-general has averred the power and jurisdiction of this court in the premises, and prayed that the said plea may be overruled, and the respondent called upon to answer, &c.</p> <p>“ For the respondent it has been contended, that the act of assembly, giving the courts of common pleas jurisdiction in cases of quo warranto, does not authorise the proceedings against a person claiming to hold and exercise the office of associate judge, which it is said is an office ‘ of the commonwealth,’ and not ‘ a county office’ within the meaning of the act.</p> <p>“ It will be necessary to examine the constitution and various acts of assembly, to see for what purposes courts of common pleas were established, how the judges thereof are to be appointed, and the nature and extent of their powers and jurisdiction, in order to determine this question.</p> <p>“ The 18th section of the act of 1834, (Purdon, 207,) establishes or rather continues the courts of common pleas, by the name and style of ‘ the court of common pleas of (the respective) county.’ The 19th section declares that the courts of common pleas of the several counties of this commonwealth, except the county of Philadelphia, shall consist of a president judge and two associate judges. The 20th section declares that the president and associate judges of the courts of common pleas, or any two of them, or the presiding judge, in the absence of his associates, shall have power to hold the said courts, and to hear and determine all causes, matters and things cognizable therein, according to the constitution, laws and usages of this commonwealth. Section 27 provides that, ‘ it shall be the duty of the governor from time to time, as any vacancy may occur in the office of judge in any of the said counties, to appoint and commission a suitable person to be judge of the court of common pleas of such county. Section 29 provides- that, ‘ the courts of common pleas of every county shall be holden four times in every year at the courthouse of the respective county, and at and during the times hereinafter specified for each term, if the business depending in the said courts respectively shall require it,’ &c.</p> <p>“The 12th section of the act of 16th of June 1836, is in the following words: ‘ The courts of common pleas shall have jurisdiction and power within their respective counties, to hear and determine all pleas, actions and suits, and causes, civil, personal, real and mixed, according to the constitution and laws of this commonwealth: And the said courts shall have power to grant, under their judicial seals, all lawful writs and process, necessary for the exercise of such jurisdiction,’ &c.</p> <p>“ The 3d section of the 5th article of the amended constitution provides, ‘ until otherwise directed by law, the courts of common pleas shall continue as at present established.’ The 4th section of that article declares that, ‘the jurisdiction of the supreme court shall extend over the state’—and the 5th, 7th, Sth and 9th sections speak of the judges of the court of common pleas ‘in each county,’ ‘of each county,’and ‘within each county’—and of the jurisdiction of the president judges ‘ within their respective circuits,’and of the judges of the court of common pleas ‘ within their respective counties.’</p> <p>“ We have, therefore, in Pennsylvania, in our general system— 1st, judges of ‘ the supreme court of the commonwealth of Pennsylvania;’ 2d, president judges ‘ of the several courts in the-judicial district or circuit, consisting of the counties of-in the said commonwealth,’ and 3d, ‘ associate judges of the courts of common pleas of (the respective) counties.’</p> <p>“ The commission of the respondent, which has been read to ns, and is dated the 29th of December 1838, appoints him ‘to be one of the judges of the court of common pleas, in and for the county of Schuylkill. Hereby giving and granting unto you, as associate judge, full right and title to have, and to execute all and singular the powers, jurisdiction and authorities, and to receive and enjoy all and singular the lawful emoluments, of a judge of the said court of common pleas, in and for the county aforesaid, agreeably to the constitution and laws of this commonwealth; to have and to hold, &c., so long as you behave yourself well.’</p> <p>“ Let us now turn to the act of 14th of June 1836, which confers on courts of common pleas the power and jurisdiction in case of quo warranto. It is under this act alone that we derive our power in such cases. Prior to its passage the jurisdiction was confined exclusively to the supreme court; by it the form of proceeding is modified and the jurisdiction in certain specified cases conferred upon the court of common pleas, concurrently with the supreme court. Its language is,‘writs of quo warranto may be issued by the judges of the supreme court, in the form and manner hereinafter provided, in all cases in which the writ of quo warranto, at common law, may have been issued, and in which the said court has heretofore possessed the power of granting informations in nature of such writs.’</p> <p>“‘Writs of quo warranto in the form and manner hereinafter provided, may also be issued by the several courts of common pleas concurrently with the supreme court in the following cases:</p> <p>“ ‘ I. In case any person shall usurp, intrude into, or unlawfully hold or exercise any township or county office, within the respective county.</p> <p>“ ‘ II. In case any person duly elected or appointed to any such office, shall have done, suffered or omitted to do any act, matter or thing, whereby a forfeiture of his office shall by law be created.</p> <p>‘ III. In case any question shall arise concerning the exercise of any office in any corporation, created by authority of law, and having the chief place of business within the respective county.’</p> <p>“ The sole question for decision, to determine this question of jurisdiction is, whether a person who is commissioned to be ‘ an associate judge of the court of common pleas, in and for the county of Schuylkill,’ is a person holding or exercising ‘ a county office within such county.’</p> <p>“ By the reference made to the constitution and acts of assembly, as well as the commission of the respondent in the present case, it appears that an associate judge is and ought to be appointed to perform his duties in, for and within the county.</p> <p>“ Out of the territorial limits of the county, he is powerless as an officer.</p> <p>“ It is very true that the constitution, article 5, section 1, says¿ ‘The judicial power of the commonwealth shall be vested in a supreme court, in courts of oyer and terminer, and general jail delivery, in a court of common pleas, orphans’ court, register’s court, and a court of quarter sessions of the peace for each county, in justices of the peace, and in such other courts as the legislature may, from time to time, establish.’ And it is also true, that the salaries of the judges are directed by law to be paid out of the treasury of the commonwealth. Yet we do not perceive that there is any thing in either of these provisions which takes away the local character of the associate judge of the county court. Every officer whose office is created under the constitution or laws of the commonwealth, is, in a certain sense, a commonwealth officer; but he will be further classified as a township, county or district officer, according to his powers and duties, and the nature and extent of the authority conferred upon him.</p> <p>“ The only difficulty cast upon the subject is by the notes appended, by the gentlemen appointed to revise the civil code, to the act of 14th of June 1S36, giving us jurisdiction in case of quo warranto—(see 2 Partee <$• Johnson S11,) in which they say: ‘The first three specifications relate to municipal and other corporate offices.’ And in their notes to the act of 15th of April 1834, entitled ‘ an act relating to counties, townships, and county and township officers,’ where they say: ‘It may be proper here to remark, that we intend by county and township officers those only who are elected by the people of the several counties for county purposes. Prothonotaries, registers, recorders, &c., being appointed by the executive of the commonwealth, appear to us to be properly state officers, although, acting in and for the several counties, and have certainly no immediate connection with the county organization. They are not, therefore, embraced in the present bill, but will be embraced under a different head.’</p> <p>“ Independent of the explanatory note to the act of 14th of June 1836, there would, in our judgment, be no doubt that the terms ‘ holding or exercising any township or county office, within the respective county,’ would embrace associate judges. The explanation, that these specifications relate to ‘ municipal and other corporate offices,’ will not, in the proper interpretation of the word ‘ municipal,’ vary this construction. Because that term, although meaning ‘ of or pertaining to a town or township, or a borough or city corporation,’ also applies ‘ to a district composed of a certain number of towns and townships,’ and, as extended by Blackstone, ‘ to one whole state or nation.’ It, therefore, does not restrict or confine the term ‘ county office within the respective county,’ to narrower limits than those terms import.</p> <p>“The notes to the act of 15th of April 1834, have reference to that act alone, and what was meant by those gentlemen in relation to it. They ought not to control and limit the legitimate bearing and effect of a statute upon an entirely different subject, enacted two years thereafter,</p> <p>“ In a question of this kind, where we even doubted, we would incline to that construction which would most tend to promote public convenience, and the due administration of justice. These were the objects which the legislature had in view in passing the act in question. There are not less than one hundred associate judges—three hundred prothonotaries, clerks of courts, registers of wills and, and recorders of deeds—and not less than two thousand justices of the peace and aldermen, besides one hundred sheriffs and coroners in the commonwealth. To cast the jurisdiction in all these cases (where there is a contest about who is a proper officer) exclusively upon the supreme court, would overload that court with business, and prevent it from attending to its, at present, too onerous duties. The object of the act in question was to relieve it from a part of its burthens, by conferring on the common pleas quo xoarranto jurisdiction in the specified cases. Inasmuch, therefore, as the party aggrieved will have the right, when the case is decided in the court of common pleas, to remove it by writ of error to the supreme court, and bring the whole case up before that tribunal in bank for immediate hearing, when it sits in the district, little danger need be apprehended from improper decisions in the court below; more especially, as in a doubtful case, the court would not award execution until a final decision in the court of the last resort.</p> <p>“ We are of opinion, that this court has jurisdiction in the premises, and we overrule the respondent’s plea to the jurisdiction, and direct that he make answer to the suggestion and writ.”</p> <p>Plea in abatement. “ And the said Samuel D. Leib, by Edward Owen Parry, his attorney, comes into court, and prays judgment of the writ issued against him in this case, because he says that the said writ is not made returnable at any time within term, as is required by the fifth section of the act of assembly of this commonwealth, passed the fourteenth day of June in the year of our Lord one thousand eight hundred and thirty-six, entitled ‘ an act relating to writs of quo xoarranto and mandamus,’ and this he is ready to verify; wherefore he prays judgment of the said writ, and that the same may be quashed.”</p> <p>Samuel D. Leib, the respondent in this case, upon his solemn affirmation saith, that the facts set forth in the plea hereto annexed, are true to the best of his knowledge and belief.</p> <p>Samuel D. Leib.</p> <p>Affirmed and subscribed before me this 17th day of April, A. D. 1840. Charles Witman.</p> <p>Replication. “And now May 27, 1840, comes Ovid F. Johnson, by F. W. Hughes, his deputy, on behalf of the said commonwealth, and saith, that the said writ, by reason of any thing by the said respondent in his said plea alleged, ought not to be quashed, because the said writ was issued during the March term, A. D. 1840, of the court of common pleas for said county, returnable on the seventeenth day of April, eighteen hundred and forty; and that the said March term has been adjourned from day to day until the said seventeenth day of April, eighteen hundred and forty, and this the said commonwealth prays may be inquired of by the record. The said commonwealth therefore prays, that the said answer of the said respondent, in abatement of the writ in manner and form aforesaid pleaded, may be overruled, and that the said respondent may be ordered and required to plead to and answer the said suggestion.”</p> <p>Rejoinder. “ And the said respondent, as to the said replication of the said commonwealth, to the plea of the said respondent, which the said commonwealth hath prayed may be inquired by the record, he doth the like.”</p> <p>Answer. “ And now the twenty-seventh day of May, in the year of our Lord one thousand eight hundred and forty, comes the said Samuel D. Leib, by Edward Owen Parry, his attorney, and protesting that the suggestion filed in this ease is altogether insufficient in law, and that he need not, according to the law of the land to make answer thereunto; nevertheless, for a plea in this behalf, he saith that the said commonwealth ought not to implead him by reason of the premises in the said suggestion set forth, because he saith, that at the time of the adoption of the amendments to the constitution of the commonwealth of Pennsylvania, his excellency Joseph Ritner, was governor of the said commonwealth; and by the fifth section of the schedule to the said amendments, it was provided, that the governor who should be elected in October, eighteen hundred and thirty-eight, should be inaugrated on the third Tuesday in January, eighteen hundred and thirty-nine, to which time the then executive term was thereby extended. And the said Joseph Ritner, so being the governor of the said commonwealth of Pennsylvania, did, by a commission in due form of law, bearing date the twenty-ninth day of December, in the year of our Lord eighteen hundred and thirty-eight, under the great seal of the commonwealth, signed and issued by the said Joseph Ritner, then being •governor of the said commonwealth, according to the constitution of the said commonwealth, did appoint and commission the said Samuel D. Leib, to fill the said office of associate judge of the county of Schuylkill, which was then vacant, which said commission duly signed and sealed, bearing date as aforesaid, the said Samuel D. Leib brings here into court. And the said Samuel D. Leib further saith, that afterwards to wit: on the thirty-first day of December, A.D. eighteen hundred and thirty-eight, he dulyaccepted the said commission, and on the same day last mentioned, duly and according to the constitution and laws of this commonwealth, took and subscribed the affirmation required by the said constitution and laws, and entered upon the duties of the said office of associate judge of Schuylkill county aforesaid, and has continued from thence hitherto, continually to perform the same duties, and still doth perform the said duties according to the said constitution and laws, and under and by virtue of the said appointment and commission. And the said Samuel D. Leib further saith, that by the ninth section of the schedule of the said amendments of the said constitution it is provided, that the legislature of this commonwealth, at its first session under the amended constitution, should divide the associate judges of the state, other than the associate law judges into four classes. That the commissions of those of the first class should expire on the twenty-seventh day of February, eighteen hundred and forty; those of the second class on the twenty-seventh day of February, eighteen hundred and forty-one; of those of the third class on the twenty-seventh day of February, eighteen hundred and forty-two; and of those of the fourth class, on the twenty-seventh day of February, eighteen hundred and forty-three: that the said classes from the first to the fourth, should be arranged according to the seniority of the commissions of the several judges. And the said Samuel C. Leib further saith, that the legislature of the said commonwealth, at its first session under the amended constitution, to wit: on the twentieth day of June, in the year of our Lord one thousand eight hundred and thirty-nine, did, by an act entitled ‘ an act to classify the associate judges of the state,’ divide the associate judges of the state into four classes, and arranged the same according to the seniority of their commissions; and by the fourth section of the said act, did provide that the said Samuel D. Leib, among others, should constitute the fourth class, whose commissions should expire on the twenty-seventh day of February, eighteen hundred and forty-three. And the said Samuel D. Leib further saith, that the said act of assembly passed the seventh day of March, A. D. eighteen hundred and forty, entitled an act supplementary to and explanatory of an act entitled an act to classify the associate judges of the state, and set forth in the said suggestion, is unconstitutional, null and void, and inoperative.</p> <p>“ And the said Samuel D. Leib further saith, that by the said schedule to the said constitution, it is not provided, that the legislature shall divide the associate judges of the said state into four classes, to be arranged according to the seniority of their commissions, as in the said suggestion is set forth; but by the said schedule to the said constitution, and in the ninth section of the said schedule it is provided, that the legislature of this commonwealth at its first session under the amended constitution, should divide the associate judges of the state, other than the associate law judges, into four classes as above set forth in this answer; and by the fourth section of the said schedule it is provided, that the general assembly which should convene in December, eighteen hundred and thirty-eight, should continue its session, notwithstanding the provisions of the eleventh section of the first article, and shall at all times be regarded as the first general assembly under the amended constitution. And the said Samuel D. Leib further saith, that it does not appear from the said amended constitution and schedule, nor from the decision of the supreme court of the said commonwealth, in the case of the said commonwealth against Oristus Collins, that, from the said time of the adoption of the said amended constitution as aforesaid, until the first day of January, eighteen hundred and thirty-nine, the governor of the said commonwealth had na authority to appoint and commission any judge of any court of common pleas for said commonwealth, for or longer than until the first day of January, eighteen hundred and thirty-nine, as in the said suggestion is set forth, but that by the said constitution and the amendments, and by the decision of the supreme court in the said case of the said commonwealth against Oristus Collins, it does appear that the said governor of the said commonwealth, between the time of the adoption of the said amended constitution, viz: the ninth day of Octobér, eighteen hundred and thirty-eight, and the first day of January, eighteen hundred and thirty-nine, had full power and authority to appoint and commission any judge of any court of common pleas for the said commonwealth, so long as he should behave himself well, subject only to the provisions of the said amended constitution and the said schedule. And the said Samuel D. Leib further saith, that he was not appointed and commissioned an associate judge for said county, in the room of Daniel Yost, as is set forth in the said information, but that he was appointed and commissioned an associate judge of the state for the county of Schuylkill, as is above set forth in this answer, and as manifestly appears by his said commission—without this the said Samuel D. Leib the office of associate judge of Schuylkill county, in the said suggestion mentioned, from and since the first day of January, A. D. eighteen hundred and thirty-nine, hath usurped, and still doth usurp upon the said commonwealth in the manner and form as by the said suggestion is supposed. All which the said Samuel D. Leib is ready to verify; as the court shall award, wherefore he prays judgment, and that the said office of associate judge of Schuylkill county, by him above claimed, may be adjudged and allowed to him, and that he may be dismissed and discharged by the court hereof, and from the premises above charged on him, &c.”</p> <p>The deputy attorney-general, on the part of the commonwealth, having craved oyer of the alleged commission, in the respondent’s answer set forth, it was granted by the court in hsec verba.</p> <p>Commission, Pennsylvania, [l. s. ] Joseph Ritner. In the name and by the authority of the commonwealth of Pennsylvania, Joseph Ritner, governor of the said commonwealth, to Samuel D; Leib, of the county of Schuylkill, esquire, sends greeting: know you that reposing especial trust and confidence in your integrity, judgment and abilities I, the said Joseph Ritner, have appointed, and by these presents do appoint and commission you, the said Samuel D. Leib, to be one of the judges of the court of common pleas, in and for the county of Schuylkill, hereby giving unto you as associate judge, full right and title to have and to execute all and singular the powers, jurisdictions and authorities, and to receive and enjoy all and singular the lawful emoluments of a judge of the said court at common pleas, in and for the county aforesaid, agreeably to the constitution and laws of the commonwealth. To have and to hold this commission, and the office hereby granted, unto you the said Samuel D. Leib, so long as you shall behave yourself well. Given under my hand and seal of the commonwealth at Harrisburg, this twenty-ninth December, in the year of our Lord one thousand eight hundred and thirty-eight, and of the commonwealth the sixty-third.</p> <p>■ “ By the Governor. J. Wallace, Deputy Secretary.</p> <p>“ Recorded and examined, December 31, 1838.</p> <p>“ Jac. Hammer, Recorder.</p> <p>“I, Samuel D. Leib, do solemnly, sincerely and truly declare and affirm, that I will support the constitution of the United States— that I will support the constitution of the commonwealth of Pennsylvania, and that I will perform the duties of an associate judge of the court of common pleas of Schuylkill county with fidelity.</p> <p>“ Samuel D. Leib.</p> <p>“Affirmed and subscribed before me, December 31, 1S38.</p> <p>“ Jac. Hammer,</p> <p>“Recorder of Schuylkill county.”</p> <p>Demurrer. “And thereupon Ovid F. Johnson, attorney general of the said commonwoalth, by F. W.,Hughes, his deputy, who for the said commonwealth prosecutes in this behalf, comes and saith, that the said answer of the said Samuel D. Leib, and the matter therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude the said commonwealth from having or maintaining the aforesaid proceeding thereof against him, the said Samuel D. Leib, tand the said commonwealth is hot bound by the law of the land to answer the same, and this the said commonwealth is ready to verify; wherefore, for want of a sufficient plea in this behalf, the said attorney prays judgment for the said commonwealth, and that the said defendant be ousted and altogether excluded from the office of associate judge aforesaid.</p> <p>“And the said Ovid F. Johnson, attorney general as aforesaid, according to the form of the statute in such case made and provided, states and showeth the court the following causes of demurrer to the said plea.</p> <p>“ íst. That the commission under which the said Samuel D. Leib claims to hold the office aforesaid having been issued on the twenty-ninth'day of December, eighteen hundred and thirty-eight, the acting governor of the said commonwealth had no right to commission him to.hold thesaidoffi.ee ‘so long as he should behave himself well.’ And he could not, under such commission, exercise the duties of the said office from and after the first day of January eighteen hundred and thirty-nine.</p> <p>“ 2d. That the said plea is in other respects uncertain, informal, and insufficient,” &c.</p> <p>Joinder in Demurrer. “ And the said respondent saith, that his answer above pleaded, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law to bar and preclude the said commonwealth from having or maintaining the aforesaid action thereof against the said respondent, and this the said respondent is ready to verify and prove as the court shall award; wherefore, inasmuch as the said commonwealth hath not answered the said plea, nor in any manner denied the same, the said respondent prays judgment, and that the said commonwealth may be barred from having or maintaining the aforesaid action thereof against the said respondent,” &c.</p> <p>“ Whereupon the court below (Porter, president) delivered the following opinion:</p> <p>“ On the Slst day of March last, during the sitting of the court, the relator filed an ex officio information against the respondent, on which a writ of quo zoarranto issued, returnable on the - day of March last, which was served upon the respondent, and on the return thereof, the respondent put in a plea denying the jurisdiction of the court. The commonwealth averred the jurisdiction of the. court, and the question of jurisdiction was argued by the counsel. The’ court, on the 28th of March, delivered a written opinion, al copy of which is herewith filed, deciding that we had jurisdiction in the premises, overruling the respondent’s plea to the jurisdiction, and directing him to make answer to the suggestion and writ.</p> <p>The respondent thereupon pleaded in abatement to the writ, that the suggestion had not been verified by affidavit. Although in strictness, this matter may not have been pleaded in proper season, yet to avoid all technical difficulties, and have a decision on the real matter in controversy, so that, if desired, the same might be reviewed by the supreme court at the earliest possible period, the court suggested to the deputy attorney-general to withdraw the proceeding and to commence de novo.</p> <p>“Accordingly,on the said 28th of March 1840, the suggestion upon which the present writ issued was presented to the court and filed, and the court awarded the present writ of quo warranto, which was made returnable to this court upon the 17th day of April, now last past, and was served upon the respondent more than ten days before the return day. The regular business of the term having been gone through, the court adjourned on the 1st day of April 1840 until the 17th day of the same month, at which time the president of the court was unable to attend, and the associate judges, who were present, adjourned the court until the 18th of April, and then to the 20th of the month, transacting the business before them, and adjourning the hearing of this case until the 27th of May 1840, at which time the president attended, and the relator having called upon the respondent to plead, he again presented his plea to the jurisdiction of the court, which was overruled for the reasons stated in the opinion delivered upon the 28th of March last, and which are contained in a copy of that opinion hereto annexed, making part of the opinion in this case.</p> <p>“ The respondent then pleaded in abatement that the said writ of quo warranto was not made returnable at March term, when the suggestion was filed, but to a day subsequent to the end of that term—to which the commonwealth replied, that it was made returnable during the said March term, the said court having been adjourned from day to day until the 17th of April 1840, as appeared by the record, and prayed that the same might be tried by the record, and the respondent did the like. The court on inspecting the record were of opinion with the commonwealth, overruled the said plea in abatement, and gave judgment of respondeas ouster.</p> <p>“The respondent then pleaded in bar in substance, that on the 29th of December 1839, the office of associate judge, &c. being vacant, he was duly appointed and commissioned by Joseph Ritner, Esq. governor of Pennsylvania, by commission of that date, ‘ to be one of the judges of the court of common pleas in and for the county of Schuylkill. Hereby giving and granting unto you as associate judge, full right and title to have and to execute all and singular the powers, jurisdiction, and authorities, and to receive and enjoy all and singular the lawful emoluments of a judge of the said court of common pleas in and for the county aforesaid, agreeably to the constitution and laws of this commonwealth. To have and to hold, &c. so long as you behave yourself well.’ Which office he accepted, and took the affirmations of office on the 31st day of the same month, in virtue whereof he hath the right to hold and exercise the said office. That by the terms of the amended constitution, and the act of 20th June 1839, he may lawfully hold and exercise, &c., and that the act of 7th March 1840 is unconstitutional and void.</p> <p>“ To this plea in bar, the commonwealth has demurred, and the respondent has joined in demurrer, and the question to be determined is, whether the respondent, under his said commission, and the constitution and laws of the commonwealth, can rightfully exercise the office of associate judge, &c.</p> <p>“ In the case of the Commonwealths. Collins, 8 Watts 339, the supreme court decided, what was unquestionably the law, that by the provisions of the amended constitution, the present judges who were commissioned by the late Governor Ritner, between the time of the adoption of that instrument and the 1st day of January 1839, ceased, on the latter day, to have any right further to discharge their judicial functions; and this upon the principle, that the amended constitution provided for a new mode of appointment, to wit; by and with the advice and consent of the senate, and a new tenure, to wit, that for the term of ten years, if the incumbent should so long behave himself well; whereas, by the former constitution, the governor alone possessed the power of appointment, and the term of office was so long as the incumbent behaved himself well; and that by the schedule to the amended constitution, there was provision made for continuing, during a limited period, the offices of those judges who should be in office at the time of the adoption of the amendments—whereas no provision whatever was made for the cases of those who might be appointed between the time of the adoption and the time of going into effect of the amended constitution.</p> <p>“ Although the particular case there decided was that of a president judge, it appears to the court that the principle is there too well established to admit of a doubt, that all commissions held under the commonwealth of Pennsylvania, issued in that interval, expired, except where the amended constitution otherwise provided, on the 1st day of January 1839.</p> <p>“ Does the case of an associate judge of the court of common pleas present a different case from that of the president judges? In the constitution of 1790, article 5, section 4, it is provided, ‘until it shall be otherwise directed by law, the several courts of common pleas shall be established in the following manner:—The governor shall appoint in each county not fewer than three nor more than four judges, who, during their continuance in office, shall reside in such county. The state shall be by law divided into circuits, none of which shall include more than six nor fewer than three counties. A president shall be appointed of the courts in each circuit, who, during his continuance in office, shall reside therein. The president and judges, any two of whom shall constitute a quorum, shall compose the respective courts of common pleas.’ The legislature, in accordance with the provisions of the constitution, subsequently provided that vacancies by the death or resignation of associate judges, should not be supplied until the number was reduced below two; and the act of 1834 provides that the courts of common pleas of the several counties of this commonwealth, except the county of Philadelphia, shall consist of a president and two associate judges, the said president, or any two of them, or the presiding judge, in the absence of his associates, shall have power to hold the courts,’ &c.</p> <p>“ The constitution of 1790, article 5, section 2, provides that ‘the judges of the supreme court, and of the several courts of common pleas, shall hold their offices during good behaviour.’</p> <p>“ By the amended constitution of 1838, it is provided (article 5, sections), ‘ The judges of the supreme court, of the several courts of common pleas, and of such other courts of record as are or shall be established by law, shall be nominated by the governor, and by and with the advice of the senate, appointed and commissioned by him. The judges of the supreme court shall hold their offices for the term of fifteen years,if they shall so long behave themselves well. The president judges of the several courts of common pleas, and of such other courts of record as are or shall be established by law, and all other judges required to be learned in the law, shall hold their offices for the term of ten years, if they shall so long behave themselves well. The associate judges of the courts of common pleas shall hold their offices for the term of five years, if they shall'so long behave themselves well.’</p> <p>“In article 2, section 8, it is provided, ‘ The governor shall nominate, and by and with the advice,and consent of the senate, appoint all judicial officers of the courts of record, unless otherwise provided for in this constitution.’</p> <p>“-The schedule to the amended constitution, section 9, provides that ‘ The legislature, at its first session under the amended constitution, shall divide the associate judges of the state into four classes. The commissions of those of the first class shall expire on the 27th day of February 1840; of those of the second class, on the 27th day of February 1841; of those of the third class, on the 27th day of February 1842; and of the fourth class, on the 27th day of February 1843. The said classes, from the 1st to the 4th, shall be - arranged according to the seniority of the commissions of the several judges.’ The language of this section of the schedule, it will be ■perceived, is different from that used in relation to the judges of the supreme court, to the president judges, and to the recorders of courts and other judges required to be learned in the law, when speaking of classifying them or of the time of the expirations of their commissions. In regard to the judges of the supreme court, the language used is,e according to the dates of their commissions, on the first day of January next.’ In regard to the president judges, it is ‘ at the time of the adoption of the amended constitution.’ In regard to the recorders of mayors’ courts, &c., it is ‘ now in office,’ referring to the 22d of February 183S, when the amendments were all finally agreed to in convention.</p> <p>“ In regard to the associate judges,there is no provision whatever made in express terms, for those who might be appointed after the adoption of the amendments, and before the passage of the act of assembly for classifying the associate judges; but it is contended that, according to the terms used, we must refer the time to that at •which the constitution went into effect, to wit: the first of January 1839.</p> <p>“Under the constitution of 1790 Governor Ritner would have gone out of office on the third Tuesday of December 1838, and it was only by the express terms of the schedule that his term was extended beyond that time, and until the third Tuesday of January 1839. In that respect, therefore, the constitution did go into effect before the first of-January 1839. But the power to appoint judges during this interval* is no where given to him expressly. It, however, existed in him of necessity to prevent a failure in the administration, of justice; and the continuance of the office of those so appointed, was to be only so long as to meet the exigencies of the cases. It had then been decided by the citizens of the commonwealth that there should be no more judges appointed to hold their offices during good behaviour; and hence there was not the same plea or equity for continuing the incumbents so appointed in the interval for a time, that there was in the case of those who were commissioned under the old constitution to hold, &c., during good behaviour, and who had their offices suddenly and unexpectedly terminated by the call of a convention and the change of the judicial tenure. The judge who accepted an office after the adoption of the amended constitution, accepted it with his eyes open and a full knowledge of the decision made by the people.</p> <p>• “Here Daniel Yost, Esquire, who had held the commission for nearly thirty years, resigned after the 11th of December 1838, and although it is not contended that the respondent had any thing to do with procuring his resignation, yet still, but for that resignation, there would have been no vacancy to fill. The respondent was commissioned upon the 29th day of December 183S, which was after the time of the adoption of the amended constitution by the people, and after the fact of such adoption had been declared by proclamation by the governor.</p> <p>“ It is not necessary to raise the question here, but were it necessary so to do, we should hold that the time of the adoption of the amendments to the constitution was the second Tuesday of October 1838; for it was upon that day the people, to whom the question was submitted, passed upon the matter. The subsequent acts of making the returns, of counting those returns in the presence of the senators and representatives, and of proclaiming the result, are but the modes by which the fact of such adoption is made manifest or public. They constitute the legal evidence of the pre-existing fact —the adoption by the people. Such was the construction put upon it by the late executive of Pennsylvania, when, upon the 11th day of December 1838, he issued his proclamation declaring that the amended constitution had been adopted by the freemen of the commonwealth:—and in his proclamation of the 1st of January 1839, wherein he declares that the amended constitution had been adopted upon the 9th day of October then last past.</p> <p>“ It has been contended that the reasoning of Judge Kennedy, in the case of Collins, S Watts 342, is in favour of the construction that, as no time is mentioned, the 1st of January 1839 must be intended. At first blush this may appear so; but, when we consider what were the intentions of the members of the convention, as drawn from the contents of the instrument itself, and that such intent would be entirely defeated by" such a view of the matter, we cannot adopt such a construction. The intention of the convention was to make a provision in favour of the judges commissioned under the constitution of 1790, and before the adoption of the amendments, ‘ so as’ (in the language of the supreme court) ‘ to prevent their being driven at once from their offices, without allowing them some time at least to prepare for meeting the event.’ In carrying out this intent, they provided that the associate judges should be divided by the legislature into four classes, one of which classes should go out of office, according to seniority of commissions, in each’ of the years 1840, 1841, 1842 and 1S43. Suppose one-fourth, one-third or one-half of the associate judges had resigned, and either been recommissioned, or their places supplied by the appointment of others, between the time of the adoption of the amendments and the 1st of January 1839, would not this classification have been defeated by the construction for which the respondent contends; and would not a set of men have been commissioned by the governor alone, in terms for good behaviour, but whose commissions could neither endure for the period of good behaviour nor for that of five years, but until the time when the last class should go out, to wit: the 27th of February 1843, a period of about four years and two months. And would not men who otherwise would have held either to 1841, 1842, or 1S4-3, be thrown into an earlier class, thereby making the remaining judges, who did not resign, have their tenure dependent, not on the will of the convention, of the governor, of the people or the legislature, but on the will and pleasure of such other of the associate judges as might choose to resign before the 1st of January 1839. Such a state of things the constitution never contemplated, and we must not defeat their intentions by a construction which would bring about such results, and that too, where such construction is contended to be merely an inference from expressions used.</p> <p>“We are therefore of opinion that the commission of therepsondent expired on the 1st of January 1839, and that the office then, became vacant. If right in this view of the subject, then neither the act of the 25th June 1839, nor that of the 7th March 1840, could continue him in office. It would require a commission from the governor, ‘ by and with the advice and consent of the senate,’ to enable him to perform any of the duties of the office, after that day.</p> <p>“But the schedule requires that the legislature at its first session under the amended constitution, shall divide the associate judges of the state. It does not direct the legislature to divide a part of them into classes—and it is contended that the classification made in the act of 20th June 1839, neither classed all the judges (Samuel Yohe, of Northampton county, Joseph Seager, of Lehigh county, Thomas Jones of Chester county, and some others, who had been before the passage of that act, commissioned as associate judges, not being named therein,) nor classed those therein named, according to the true intent and meaning of the constitution. It was not only in the power of the legislature, subsequently to re-classify them, but it was their duty to do so—and hence the act of 7th March 1840 is not only constitutional, but proper.</p> <p>“The power of the courts to declare acts of the legislature to be unconstitutional, has been repeatedly claimed, and has been in more than one instance exercised. But all the decisions say, with great propriety, that this power should only be exercised by the courts, in clear and palpable cases. How far, too, in matters of public legislation, where warrants of contracts with individuals-are not involved, one legislature can bjnd another from further legislation, on the same subject, is also a grave question for determination. It is enough for us to say that there must be no reasonable doubt left on the minds of inferior courts, before they would exercise the power which they possess, to declare laws unconstitutional, or to hold a subsequent legislature bound by the acts of their predecessors in regard to such public legislation, so as not to have the power to modify and correct it. If the classification first made was not the proper one, then it is not such as the constitution contemplated, and except in very clear cases, that would be a subject for the exercise of legislative discretion, not of judicial determination.</p> <p>“ In the view we have taken of the subject, we are not required to -pronounce the acts unconstitutional, if they even were so, as we think the case depends upon the terms of the constitution, and what was the manifest intention of the convention, as drawn from the instrument itself. And we think the construction adopted, is that which will secure for the judiciary of the country the greatest amount of public confidence.</p> <p>“ We therefore render judgment of ouster against the respondent; but to enable the parties to have the question decided by the supreme court, we will not award execution of the judgment, until an opportunity is afforded to the respondent, of removing the cause.</p> <p>“ It is considered by the court here, that Samuel D. Leib, Esquire, do not in any manner meddle or concern himself in and about the holding of or exercising the said office of associate judge of the court of common pleas, in and for the said county of Schuylkill, in the said information specified, in virtue of the supposed commission by him mentioned in his plea in bar aforesaid. But that the said Samuel D. Leib, Esquire, be absolutely forejudged and excluded from holding or exercising the said office, and that the said commonwealth recover costs taxed at,” &c.</p> <p>Errors assigned: 1. The court erred in deciding that the court of common pleas had jurisdiction of this case, and in overruling the plea to the jurisdiction.</p> <p>2. The court erred in deciding that the writ was made returnable in term, and in overruling the plea in abatement, and in rendering judgment of respondeas ouster.</p> <p>3. The court erred in sustaining the demurrer, and in rendering judgment of ouster against the respondent.</p>

CER TIORJ1RI \o the quarter sessions of Dauphin county. Christian Landis and wife against the Union Canal Company.

<p>A testator thus disposed of his estate: “I will that my three sons, namely, Jacob, Christian, and John, with all my land, shall hold vendue amongst themselves, and whosoever shall give the most for it shall have it, and that the money shall be divided amongst my three sons into equal shares.” In pursuance of this devise one of the sons obtained the land, and died without paying all the purchase-money: Held, that that which remained unpaid was a lien upon the land, having a preference over other debts of the deceased devisee.</p>

The Farmers’ Bank of Reading against Leah Strohecker. Held: &c., unto Daniel Stroheeker, who is married to Leah, one other of the daughters of the said deceased, in the sum of 3860 dollars and 49 cents, to be paid to Daniel Stroheeker, or his certain attorney, &c. Sealed and dated the 6th of August 1819. ‘ “ Whereas, such proceedings were had this day, and at divers other times before, in the…

CERTIORJLRI to the quarter sessions of York county. Upon a petition, the court -appointed three viewers -to inquire into the propriety of dividing Windsor -township. Two of -them reported in favour of granting the prayer -of the petitioners, and returned with their report their bill for-two -days for each viewer amounting to four dollars. The court confirmed-their report.

The Commonwealth of Pennsylvania, for the use of John Wen-rich’s executors, against John Schaeffer, with notice to Hannah Miller, terre-tenant. Scire facias to show cause why execution should jtot issue for 1190 dollars and 67 cents, with interest from the 13th of May 1831.

This was an action of debt by the commonwealth, for the use of William Hymes, against Jacob Barnitz, founded upon an administration bond, in which the following facts were found: On the 21st day of December 1810, Francis Hymes made his last will and testament in writing, wherein he bequeathed, amongst others, as follows, viz-—“Item.

<p>ERROR to the common pleas of Cumberland county.</p> <p>Joseph Kenege against James Elliott.</p> <p>This was an action of ejectment for a lot of ground in the town of Springfield, in which the plaintiff in error was the plaintiff below, and in which the parties agreed to the following special verdict.</p> <p>The following facts are agreed upon to be considered as a special verdict, with the right to either party to sue out a writ of error in the usual way. A larger tract of land, embracing the property in dispute, was granted by the commonwealth to William M’Cracken and Samuel Findley by patent, dated the 24th of November 1785.</p> <p>. Samuel Findley by deed, dated the 21st of January 1791, conveyed all his right and title to William M’Cracken.</p> <p>William M’Cracken set apart a portion of the tract as a site for the town of Springfield, and laid it off in lots, 60 feet by 100, sold and conveyed several lots in his life time, but not the one in question.</p> <p>■ He died intestate; and-proceedings were duly had in the orphans’ court of Cumberland county, by which the said tract of land, not previously conveyed, was vested in his son, Samuel F. M’Cracken, his heirs and assigns, in July 1806. (See the proceedings in the orphans’ court, September 9, 1S06.) By'this proceeding, the property in question was duly vested in Samuel F. M’Cracken.</p> <p>* Samuel F. M’Cracken made his deed, duly executed, the 30th of September 1809, to Robert Peebles, a copy of which is here to be inserted. It is numbered in book T. voi. 1, page 257, in the recorder’s office at Carlisle.</p> <p>Robert Peebles and wife by their deed, dated the 18th of April 1811, conveyed lot No. 16, as therein described, in the town of Springfield, being part of the aforesaid tract of land, to Samuel Williamson, his heirs and assigns, with the reservation therein—said deed here to be inserted. This deed was not recorded.</p> <p>Samuel Williamson being so seised, a judgment was had against him, in the court of common pleas, on the 10th of April 1813, No. 27, of August term, 1812, at the suit of James Huston, fieri facias issued; the lot mentioned was levied on, inquisition had, property condemned, and, by virtue of a writ of venditioni exponas, the property so levied on was sold by Andrew. Boden, Esq., sheriff, on the 6th of August 1813, in due form, to Henry James for the sum of 150 dollars and 25 cents; prout records of the court of common pleas and the deed of said sheriff duly acknowledged the 7th of August 1813. Possession was immediately taken under the last mentioned deed, and has béen held and continued by Henry James and those claiming under him up to the present time.</p> <p>Henry James and wife sold and conveyed the same property to Josiah Hood, his heirs and assigns, by deed dated the 25th of April 1829. Recorded the 20th of June, 1829.</p> <p>Josiah Hood and wife sold and conveyed the same to James Elliot, his heirs and assigns, by deed dated the 27th of May 1830. Recorded the 9th of August 1820. James Elliot is in possession, holding and claiming as owner.</p> <p>On the 15th of April 1815, Robert Peebles sold and conveyed to Joseph Kenege, the plaintiff in this suit, his heirs and assigns, by deed of that date, duly executed, a certain tract of land as therein described. Which deed also makes part of this verdict; not recorded.</p> <p>The following receipts are found to be true.</p> <p>“ Received March 26, 1820, of Mr Henry James two dollars and 66 cents, it being two years ground rent, the last due April 1,1S20.</p> <p>Signed, Joseph Kenege.”</p> <p>“November the 26th 1825, received of Richard Patton six dollars and 47 cents, for five years’ ground rents, the last being due on April the 1st 1825. It being for five years’ ground rent for Henry James’ house and lot in Springfield. By me, Joseph Kene&e.”</p> <p>The parties also agree that James, the purchaser at sheriff’s sale, and those claiming under him, have been in possession of the lot ever since the date of his deed; that during that time there was always personal property on the premises sufficient to pay the rent; and that Elliot, the defendant, always after he purchased the lot, and before this suit was brought, declined to pay the rent, alleging that he was not liable, and would not pay the same. No formal de.mand on the premises was made by the plaintiff.</p> <p>Upon these facts, the jury is ignorant whether in law the plaintiff is entitled to recover or not, and ask the advice of the court. If upon the said facts he is in law entitled to recover, we find for the plaintiff, with six cents damages and six cents costs, to be released upon the payment of 18 dollars within thirty days after final judgment, being the amount of quit rents and interest unpaid for the said lot since the 1st of April 1829. And if the plaintiff, on said facts, is not in law entitled to recover, then judgment to be entered for the defendant.</p> <p>April 18, 1811, deed of Robert Peebles and wife to Samuel Williamson, which, after reciting previous title, thus conveys the lot.</p> <p>“ Now this indenture witnesseth, that the said Robert Peebles and Jane his wife, for, and in consideration of the sum of thirty-six dollars, lawful money of the United States, to them in hand paid by the said Samuel Williamson, at and before the ensealing add delivery hereof, the receipt and payment whereof is hereby acknowledged, and thereof acquit and forever discharge the said Samuel Williamson, his heirs, executors and administrators by these presents, have granted, bargained, sold, aliened, enfeoffed, released and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release and confirm unto the said Samuel Williamson, and to his heirs and assigns, all that certain lot of land in the town of Springfield, aforesaid, bounded and described as follows, to wit: “ Beginning at a post by lands of Joseph Kenege, thence by Main street, thirty-eight and a half feet to lot No. 15, thence by same one hundred and eighty feet to a fifteen feet alley, thence by said alley sixty-five and a half feet to lands of Kenege aforesaid, by the same one hundred and eighty feet to Main street aforesaid, being numbered in the general plan of said town No. 16, together with all and singular the rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in any wise appertaining (subject to the ground-rent of one dollar and thirty-three cents to the said Robert Peebles, his heirs or assigns, on each first day of April, yearly and for every year for ever, and also to the reservations to the commonwealth, as expressed in their patent aforesaid) and the reversions and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, claim and demand whatsoever, of them the said Robert Peebles and Jane his wife, in law, or equity or otherwise howsoever, of, in, to, or out of the same, to have and to hold the said lot of land, hereditaments and premises hereby granted or mentioned, or so intended to be with the appurtenances, (only as before excepted,) unto the said Samuel Williamson, his heirs and assigns, to the only proper use and behoof of the said Samuel Williamson, his heirs and assigns for ever.</p> <p>And the said Robert Peebles for himself, his heirs, executors and administrators, doth covenant, promise, grant and agree to and with the said Samuel Williamson,' his heirs and assigns by these presents: That he the said Robert Peebles and his heirs, the said mentioned lot No. 16, hereditaments and premises, hereby granted or mentioned, or intended so to be, with the appurtenances, unto the said Samuel Williamson, his heirs and assigns, against him the said Robert Peebles and Jane his wife, and their heirs, and against all and every other person or persons whomsoever lawfully claiming or to claim the same or any part thereof, shall and will warrant and for ever defend by these presents. In witness whereof, we have hereunto set our hands and seals, the day and year first above written.”</p> <p>15th April 1815, deed, Robert Peebles and wife to Joseph Kenege, the plaintiff, after reciting title.</p> <p>“ Now this indenture witnesseth that the said Robert Peebles and Jane, his wife, for and in consideration of the sum of nine thousand, three hundred, thirty dollars, sixty-two cents and a half, good and current bank paper of Pennsylvania, to them in hand paid by the said Joseph Kenege, at and before the ensealing and delivery hereof, the receipt and payment whereof is hereby acknowledged, have granted, bargained and sold, aliened, enfeoffed, released and. confirmed, and by these do grant, bargain, sell, alien, enfeoff, release and confirm unto the said Joseph Kenege, and to his heirs and assigns, all that, the following and described piece of land, (being part of the before mentioned tract,) bounded and limited as follows, to wit:—“containing ninety-three acres and forty-nine perches, (neat measure,) together with all and singular the houses, edifices, barns, out-houses and improvements, ways, woods, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances thereunto belonging or in any wise appertaining, (except that ground laid out for the town of Springfield, being part of said tract and out of which the said Joseph Kenege, his heirs and assigns, are only to receive the yearly ground-rents which shall become due thereon forever, also subject to the reservations as expressed in the patent,) and the reversions and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, claim and demand whatsoever of them, the said Robert Peebles and Jane his wife, in law, equity or otherwise, howsoever, of, in, to, or out of the same. To have and to hold the said messuage, tenement and tract of ninety-three acres and forty-nine perches, neat measure, hereditaments and premises hereby mentioned or so intended to be, with the appurtenances (only as before excepted) unto the said Joseph Kenege, his heirs and assigns, to the only proper use and behoof of the said Joseph Kenege, his heirs and assigns for ever, and the said Robert Peebles, for himself and his heirs doth covenant, promise, grant and agree to and with the said Joseph Kenege, his heirs and assigns by these presents, that he the said Robert Peebles and his heirs, the said messuage and tract of land, containing ninety-three acres and forty-nine perches, (neat measure,) and premises hereby granted or intended so to be, with the appurtenances, unto the said Joseph Kenege, his heirs and' assigns, against them the said Robert Peebles and Jane his wife, and their heirs, and against all and every other person or persons, whomsoever lawfully claiming or to claim the same, or any part thereof, shall and will warrant and for ever defend by these presents. In witness whereof we have hereunto set our hands and seals the day and year first above written.”</p> <p>The court below rendered a judgment for the defendant, on the ground that the action would, not lie.</p>

<p>A testator having devised all his real estate, charged with the payment of an annuity to his widow and several legacies to his brothers and sisters: Held, that upon a sale of the estate by the sheriff, and a deficiency of the proceeds to pay ail the legacies charged upon it, the annuity of the widow shall not abate -with the other bequests.</p> <p>In Pennsylvania, every bequest to the wife is conditional by force of the statute, whicfi declares that every legacy to her shall be in lieu of dower if the contrary be not expressed; and thus standing as if a surrender of her dower had been expressly prescribed by the testator, she is not a volunteer, but a purchaser.</p>

<p>In an action of covenant upon an agreement for the purchase and sale of land, in which it appeared, that the vendor has executed and delivered a deed of conveyance, and receipt for the purchase-money, in pursuance of his covenant, it ■was held, that he is not thereby precluded from a recovery, upon proof, that the vendee had not complied with the covenant on his part, by payment of the consideration.</p> <p>Quere:—Whether in an action to which the personal representative of a deceased debtor, whose estate is insolvent, is a party, a creditor of that estate is a competent witness.</p>

Samuel Herbein against the Philadelphia and Reading Railroad Company. Venire to assess damages upon the lands of the plaintiff, caused by the construction of the Philadelphia and Reading Railroad through the same. November 10,1838, petition presented, and on due proof of notice, venire awarded to the sheriff of Berks county according to law. November 10, 1838, venire issued.

<p>In an action by an endorsee against an endorser, it is not necessary that the plaintiff should prove either the intermediate or prior endorsements, to enable him to give the note in evidence to the jury.</p> <p>The defendant’s admission of his endorsement would operate as an admission of the signatures of the maker and of all prior endorsers; and it would bind him even if the note and the prior endorsements had been forged.</p> <p>A notice of protest sent through the medium of the post office is sufficient to charge the endorser, but the fact of putting the letter into the post office must be positively proved, and without such proof it is error in the court to submit-it to the jury.</p> <p>A notice of protest sent by mail and directed to the town, which is the seat of justice of the county in which the endorser resides, is sufficient, although it be proved that there was a post office nearer to, and within a short distance of his residence and where he usually got his letters.</p> <p>The taking of a new note of equal degree, either from the debtor himself or from a stranger, at the instance of the debtor, is not an extinguishment of the first note, nor will it release any endorser of the same, unless the holder agreed to accept the new note in satisfaction, or to give time for the payment of the first note.</p>

<p>APPEAL by William Geddis, executor of Robert Geddis, who was the administrator of John Sawyer, deceased, from the decree of the orphans’ court of Dauphin county. By the decree, Robert Geddis was charged with the sum of 637 dollars and 34 cents, with interest; and a credit claimed by him, of the sum of 685 dollars and 71 cents, was struck out.</p> <p>John Sawyer the elder died, leaving a will, appointing Robert Geddis his executor, who proved the will in the usual mode, and took out letters testamentary, and entered upon the administration of the assets. The testator left a number of children, devisees and legatees under the will. His son,-John Sawyer, Jun., soon afterwards alleged that, by a conveyance which the testator had made to him in his life time, he had revoked his will, and the register’s court directed an issue, in May 1814, of revocavit vel non, in which he made John Sawyer, Jun., son of the testator, plaintiff, and the executor, R. Geddis, defendant. This issue was tried, and a verdict and judgment rendered for the plaintiff, in March 1818, on which the defendant, Geddis, in 1820, took out a writ of error to the supreme court. In the meanwhile, Sawyer procured releases from all the different children of his father, and all who were interested in supporting the will, except the children of Robert Geddis, the executor, who had been married to a daughter of the alleged testator, since dead, leaving children. Under these circumstances, Geddis, on the 22d of April 1822, discontinued the writ of error, having, on the 16th of March 1822, paid to the plaintiff, Sawyer, the sum of 685 dollars and 71 cents, the amount in dispute, being the plaintiff’s, Sawyer’s, bill for costs paid by him on the feigned issue. On the same day, Geddis had received from a debtor of John Sawyer, the elder, the sum of 637 dollars and 24 cents, in a note transaction between himself and others. The appellant alleges that he ought not to be charged with the sum of 637 dollars and 24 cents; but, if he is,he ought to be credited with the sum of 6S5 dollars and 81 cents paid on the same day to Sawyer. It further appears that R. Geddis afterwards took out letters of administration to the estate of John Sawyer, the elder.</p>

Calvin Mason, administrator of Joseph Morris, against Treat Benson and P. W. Bing. Debt on bond, and special verdict.

George Frederick Thomae and John Theodore Kali, trading in the name of Thomae, Kali & Co., against Walter Brown. Held: that neither the plaintiff nor the sheriff is liable, in an action of trespass, for arresting a person who has been discharged as an insolvent debtor. Ingraham on Insol. 158, n.; Cameron v. Lightfoot, 2 TV. Black. 1190; Luddington v. Reck, 2 Conn. Rep. 700; Tarlton v. Fisher, 2 Doug. 671.

Charles Ritz, Treasurer of Mifflin county, against Joseph Bowers.

Richard Downing and others, heirs at law of Richard P. Downing, deceased, against George Shoenberger and John H. Shoenberger. Ejectment for a tract of land. There was no dispute about the original title, which was in Richard Downing, in whose name it was sold in 1830 for the taxes of 1826 to 1829, by the treasurer, to Isaac Miller, who conveyed to Dr Peter Shoenberger, under whom the defendants, his sons, claim: and this sale was regularly made. .

APPEAL by Martin Ebert and Jacob Barnitz, administrators with the will annexed of Elizabeth Goering, deceased, from the decree of the court of common pleas of York county, appointing Henry Hoober a trustee for Lydia Eeiler in the place of Elizabeth Goering the elder, deceased, upon the following petition of the said Lydia Eeiler: “ The petition of Lydia Eeiler, wife of George Eeiler, and late Lydia Zimmerman, respectfully represents, that her sister Elizabeth Goering, single…

<p>ERROR to the common pleas of Cumberland county.</p> <p>Robert R. Church against Eliza Davis, administratrix of James Davis, with notice to the directors of the poor and the house of employment of the county of Cumberland. Scire facias sur mechanics’ lien.</p> <p>The original claim was filed on the 29th of September 1832, against James Davis, for lumber furnished for the building of a house on the property of the directors of the poor, and this scire facias issued to November term 1834.</p> <p>On the trial the plaintiff offered in evidence his book of original entries, showing the charges for lumber furnished to James Davis, to the amount of 200 dollars 32 cents, accompanied with parol proof that the boards were got by the said James Davis, at the board-yard of the plaintiff, on the credit and for the building referred to in the claim filed as a lien, and that the lumber was so used.</p> <p>The defendants objected to the evidence:—</p> <p>1. That the entry in the book is simply against James Davis, and no indication is afforded by the entry that it was on the credit of the building.</p> <p>2. That if a lien did exist, it is lost by lapse of time.</p> <p>The court sustained the objections, and rejected the evidence offered, and sealed a bill of exception.</p>

<p>The maxim caveat emptor is inapplicable to a purchaser from a trustee, but he may set up a want of consideration, or any defect of title, as a defence to an action for the purchase-money, which he might set up to an action on a contract of sale by the beneficial owner; hence, in an action by an assignee in trust for the benefit of creditors, to recover the price of a tract of land held by the insolvent assignor under articles of agreement only, the defendant is entitled to defalcate in proportion to the purchase-money due by the assignor on the articles.</p>

This was an action of ejectment by Samuel Williamson and others, heirs at law of Thomas Williamson, against John Devling and Daniel Maurer, for 150 acres of land. The plaintiffs gave' evidence, showing the legal title to the land to be in Thomas Williamson, now deceased, and that they were his heirs at law.

<p>A sale of several tracts of unseated land by the county treasurer, for the payment of taxes, as one tract, and for a gross sum, will confer no title upon the purchaser; each tract must be sold separately.</p> <p>If the public sale by the treasurer of a tract of unseated land, be to one person, and the deed made to another, who gives his bond for the surplus purchase-money, a third person cannot take advantage of such irregularity.</p>

Jane Bard, William Hunter and Sarah M’Intire against John W. Nevin, administrator of John Nevin, deceased. This was an action of assumpsit, in which the following facts were agreed to and considered as a special verdict.

APPEAL of Henry Carlisle and William Means from the decree of the court of common pleas of Cumberland county, refusing to appoint a trustee upon the following petition: “That Edward Shippen and Joseph Shippen, by deed dated the 2d of June 1794, conveyed a lot of ground in the borough of Shippensburgh, &c., to f John Means and Robert M’Call, in trust for the use of the Associate Reformed Presbyterian Congregation at Shippensburg, for a place of public worship for ever, and…

APPEAL by Henry Kauffelt from the decree of the court of common pleas of Franklin county, appropriating the proceeds of the sale of the personal property of Charles-and William Flory,. consisting of a warehouse built upon the lot- of another person. The execution of William and Samuel Seibert was issued on the 6th of December 1S39, and that of Henry Kauffelt on the 3d of January 1840.

The commonwealth for the use of Anna Maria Fink against Jacob Hake. This was an action of debt upon a recognizance in the orphans’ court. On the petition of Jacob Hake, the eldest son, proceedings in partition were instituted in the orphans’ court, on the real estate of Andrew Hake, deceased, and it was divided into three parts.

<p>ERROR to the common pleas of Huntingdon county.</p> <p>This was an action of ejectment for 140 acres of land, by William Foster against William M’Divit.</p> <p>The facts which gave rise' to the only questions of law which were determined are sufficiently stated in the opinion of the court.</p>

<p>“ I give and bequeath to my daughter Catherine, married to Samuel Meisen'helter, the eighth part of my estate, to them:” Held, to be a bequest to the husband and wife, to which the husband surviving the wife is entitled.</p>

<p>ERROR to the common pleas of York county.</p> <p>William H. M’Conkey, by his guardian, against James M’Con-key, administrator of Hugh M’Conkey, deceased.</p> <p>Case stated to be considered as a special verdict, and subject to a writ of error.</p> <p>Hugh M’Conkey, Sen., the defendant’s decedent, died intestate in September 1837, leaving to survive him four children and the issue of two deceased children. The defendant became his administrator, and settled his account in the orphans’ court of York county, showing a balance of personal property in his hands of 15S6 dollars 55 cents. Hugh M’Conkey, Jun., the son of said deceased and father of the plaintiff, died insolvent in June 1S32, and indebted to said Hugh M’Conkey, Sen., by note under seal, dated December 28, 1829, for 150 dollars, payable twelve months after date, with interest from date. The plaintiff is the only child of Hugh M’Conkey, Jun.; and the defendant has paid him his full share of the balance of the above account, except the note aforesaid and its interest.</p> <p>If the note of Hugh M’Conkey, Jun., cannot be set off against the plaintiff’s share of the estate of Hugh M’Conkey, Sen., then judgment for plaintiff for 243 dollars.</p> <p>If said note can be thus set off, then judgment for defendant.</p> <p>The court below (Durkee, president) rendered a judgment for the defendant.</p>

<p>A blank endorsement of a note, in its terms not negotiable, after it becomes due and payable, creates such a liability of the endorser as that the endorsee may maintain an action against him in his own name.</p>

<p>ERROR to the; special court of common pleas of Cumberland county. (Durkee, president).</p> <p>George and John Harlan against William Moore and others.</p> <p>The plaintiffs in error were the plaintiffs below, and brought an action of trespass against the defendants, for entering the close of the plaintiffs, pulling down their fences, and destroying their corn. Defendants pleaded not guilty, liberum lenementum and a license. Replication, novel assignment and no license.</p> <p>To support the issue on their parts, the plaintiffs gave in evidence the will of John Moore, dated the 15th of August 1822, probate the 8th of January 1828, which contains the following clauses applicable to the case:</p> <p>“ 3d. I give and devise to my son William Moore, his heirs and assigns forever, the houses, mills and races which he now possesses, together with twenty-four feet from the mill to the dam, to enable him to repair the race at pleasure, together with full and free liberty to keep the dam in repair, so as to furnish water to. the mills devised him, together also with two hundred and one acres, and allowance of land as contained in a survey marked B, made by William Wheeler, Esq. and hereunto annexed, and which is to be considered as forming a part of this my last will and testament, as though the same had been particularly recited herein; reserving nevertheless, to my grand-son John Galbraith, his heirs and assigns forever, the right and privilege tp erect and keep in repair, a bridge or bridges across the race, between said mills and dam, when and where he or they shall think proper, reserving also tp my.said grand7 son, John Galbraith, his heirs and assigns forever, the right to use so much of the water in said race as may be necessary to carry on the distillery, and to water sufficiently twenty acres of meadow.</p> <p>“ 4th. I give and devise to my grand-son, John Galbraith, his heirs and assigns forever, my mansion-house, together with the barn and out-houses attached thereto, together also with two hundred and fifty-nine acres and fifty-nine perches, strict measure of land as contained in a survey marked A, made by William Wheeler, Esq. and hereunto annexed, and which is to be considered as forming a part of my will, as though the same had been particularly recited therein, being part of my mansion tract and marked No. 1 in the survey last referred to; and I do hereby will and direct that my grand-son, John Galbraith, shall and is to pay to my executors hereinafter named, the sum of fifteen hundred dollars, to be paid in the following manner, to wit: two hundred dollars in one year after my decease, and two hundred dollars yearly and every year thereafter, until the said sum of fifteen hundred dollars shall be fully paid, which said sum of fifteen hundred dollars is to be appropriated by my executors to the payment of debts and the legacies hereinafter bequeathed.” '</p> <p>The mill race passes through the land devised as above to John Galbraith, his heirs and assigns.</p> <p>Admitted, that for the purpose of repairing the race, the fence on the south side of the race, for a distance of twenty-four feet, was removed by the defendants,' and that the damage which the plaintiffs sustained, if entitled to recover, was eight dollars.</p> <p>Lease of Francis Hutchinson, (hus.band of the widow of John Galbraith,) and the guardians of the minor children to the plaintiffs, dated the 3d of April 1833.</p> <p>The cause turned upon the construction of the will of John Moore, whether it vested a' fee simple in the soil of the tvventyfour feet in William Moore or only an easement.</p> <p>The plaintiff requested the court to charge the jury upon the following points:</p> <p>1. That the will of John Moore does not vest a fee simple estate in William Moore, to the land on the south side of the head race, twenty-four feet in width, so as to entitle him to the exclusive pos7 session of the same. And if the jury believe, that .he and the other defendants tore down (the fence .of the land in possession of the plaintiffs’, and took exclusive possession.of the said twenty-four feet width of land, and fenced the same off for their own use, by so doing they became trespassers,.and .the plaintiffs are entitled to recover. •</p> <p>2. That the true construction of the will of John Moore, deceased, in reference to the twenty-four feet in dispute, is that the fee-simple estate is given to John Galbraith? and that William Moore is entitled to the easement of the right to use the land for the purpose of repairing his race; and such right vested in William Moore did not justify him in tearing down the plaintiff’s fence, and building a fence parallel to the race, twenty-four feet from it, and thus taking exclusive possession of the ground along the race.</p> <p>Durkee, president, answered these questions in the negative, being of opinion that the devise was of the fee and not a mere easement.</p>

<p>ERROR to the common pleas of Cumberland county.</p> <p>This was a scire facias upon a recognizance in the orphans’ court, by John Dobbs and Andrew Dobbs, executors of Thomas Dobbs, who survived his wife Janet Dobbs, against Moses Eby, surviving cocognizor with Margaret Mehaffy and David Eby, with notice to James Mehaffy, Thomas Mehaffy, and Martha Mehaffy, brought to April term 1837.—Pleas payment with leave, &c., and the terre tenants pleaded that they hold no land bound by the lien of the recognizance.</p> <p>Plaintiffs gave evidence as follows: '</p> <p>December 12, 1S15. Petition of Margaret Mehaffy, daughter of Thomas Mehaffy, deceased, for partition and valuation of 225 acres of land. The petition recites that there were seven children, of whom Janet Dobbs was one.</p> <p>May 14, 1816. Writ of partition.</p> <p>September 16, 1816. Inquisition quashed and alias awarded.</p> <p>December 10,1816. Inquisition returned and confirmed; divided the land into two tracts; and rule upon the heirs to appear and accept or refuse, &e.</p> <p>February 18,1818. John Mehaffy, the only son, came into court and refused to take, and the others all refused but Margaret Mehaffy, who elected to take part No. .2, containing 104 acres 132 perches, and the same was awarded to her; whereupon she entered, inter alia, into the recognizance upon which this suit is brought, conditioned to pay Thomas Dobbs and Janet his wife 707 dollars 36 cents on the 12th of February 1819, with interest from the 12th of August 1818—upon which evidence being given the plaintiff closed.</p> <p>Whereupon the defendants, to maintain the issue on their part, read the deposition of Captain Samuel White, who being duly sworn, doth depose and say: My father’s property adjoined the land where Andrew Mehaffy lived. I was born on the land adjoining. I can remember as far back as 1795, and before that, when I was ploughing in the fields of my father adjoining. John Mehaffy from my earliest recollection, lived on the land adjoining Gilson Craighead, and occupied it, lived on it and farmed it as his own. I remember also that he made a contract with John M’Culloch to clear a part of it, and M’Culloch was to have either two or three crops for the clearing of the land. After he had cleared and raised one crop, then he got my brother to farm it one year on the shares; and that year I helped to plough the land for my brother. I remember of John Mehaffy’s living in the View house on the land; Andrew Mehaffy lived on the other part of the land. I know the line between them, and each farmed and occupied his own part as far back as I can remember. At first, when I remember the land as far back as 1795, there was a part of the division between them which was a road, and John farmed up the road on one side and Andrew on the other side. I never knew or heard of any dispute between John Mehaffy and his brother Andrew Mehaffy about their respective rights; as things appeared each had his own, and farmed his own. Several years after, M’Culloch cleared land for John. I remember that John’s sons then began to grow up stout boys, and they and their father cleared some more land on their part. I never heard of any dispute about their lands between them, until some time after Andrew Mehaffy’s death, some years, perhaps; I cannot remember. I know the land that James Mehaffy and Thomas Mehaffy, the sons of John, now live on, and it is the same land their father John Mehaffy lived and died on. I remember that two of the girls, whose names I think were Margaret and Martha, lived with Andrew from the earliest time that I can recollect, on Andrew’s land adjoining John’s. I never heard of John farming any part of Andrew’s land, or Andrew to farm any part of John’s land, each farmed his own, and got the whole proceeds of his own.</p> <p>John Dobbs and Andrew Dobbs, executors of Thomas Dobbs, deceased, appeared,and cross-examined the witness; who answer-eel. I remember old Thomas Mehaffy, the father of Andrew and John; I saw him at my father’s hous'e: I never knew that at the time that Thomas Mehaffy was alive, hb claimed the whole of the land. I was too young to, know it if he claimed it. I never knew of any legal transfer of the land or any writings between Thomas Mehaffy and his two sons Andrew and John.</p> <p>Robert Moore, sworn.—I can remember John Mehaffy from 1790. He lived on the old place; was then unmarried. I have seen old Thomas Mehaffy once or twice, and he was alive at that time. John Mehaffy was married in 1791. Sometime after he was married he lived with the old people. I made John’s wedding coat. I know where defendants James and Thomas Mehaffy live now; it is on the same place their father lived: he commenced building a house, I heard, in 1794 or 1795. I can remember John’s living in that house, on the land in controversy; think John died there; never knew him to live any where else; John lived up the creek. Andrew continued to live in the old place; his sisters lived with him, and a daughter of Mr Allison, who (Allison) married a daughter of Mehaffy’s. I knew John Mehaffy worked the upper part of the place himself; never knew Andrew or any body else but John to farm the upper part. James and Thomas the present defendants, now live on the same land. John their father is dead. There is a house and barn, and tenant put on the place since John went there; the barn at James’ is a middling good one.</p> <p>Cross-examined.—Old Thomas died on the old place, in the old house.</p> <p>George Ege, sworn.—I recollect this land now in dispute, as early as I can recollect any thing; can remember the house John Mehaffy lived and died in, prior to 1794; John Mehaffy lived in it then; never knew him to live any where else; I know it was pr.ior to 1794, because at that time'I commenced going to college. In passing back and forward along the road, I always saw John Mehaffy and his sons after him, farming the place. Considerable land cleared since I first remember it, and fenced; there was some stabling there from my earliest' recollections; additions have been built since, and perhaps the whole barn there now, has been built since John Mehaffy went there. Never knew any body to do any act of ownership on the upper part of the place but John Mehaffy and his family. John died on the place, and his sons reside in that house; there has been a house built some years back, near Craig-head’s mill, said to be on the same tract.</p> <p>Jacob Shoff, sworn.—I know this land in dispute; I can remember it thirty-seven or thirty-eight years. In 1800 I lived at the forge; in the year 1802 was well acquainted with John Mehaffy. Forty years last October since I came to that neighbourhood to live. When I first knew this property John Mehaffy lived on it; Andrew lived at the lower place; John farmed his own land himself, claimed it as his own for all I ever heard; never knew a dispute about it during Andrew’s life time. Andrew died in 1811; John Mehaffy died in 1832 or 1833: Thomas Mehaffy died in 1792 or 1793.</p> <p>Jacob Richwine, sworn.—Remember this land for forty-four years: John Mehaffy lived on the upper and Andrew the lower all the time I was neighbour. Can not tell who farmed upper tract, but I saw John ploughing; not a great deal cleared when I first saw it; cleared just about the house down to old place; suppose about ten acres cleared there, as near as I can remember; good deal cleared now; no bam on it when I first knew it; no tenant house as 1 know of.</p> <p>The 10th of June 1762, warrant to Thomas Mehaffy upon which he paid 12 dollars and 80 cents.</p> <p>The defendants then gave in evidence the record of an ejectment as follows:</p> <p>Margaret Mehaffy v. John Mehaffy and Thomas Mehaffy. No. 23, August Term, 1818. In the common pleas of Cumberland county. Summons in ejectment, for the tract of land taken by Margaret Mehaffy at the appraisement; 1st of May 1818, referred to arbitrators; 20th of June 181S, report of the arbitrators filed, “No cause of action;” 6th of July 1818, plaintiff appeals; 31st of July 1822, jury empannelled; 3d of August 1822, jury discharged by the court.</p> <p>Then the plaintiff called Richard Craighead, who said :—I recollect from 1777. I know this land from that early date. Thomas Mehaffy lived on this land; he had as good a log house as was in that county at that time. His stock had been divided off; before he died had good stock, while all lived together. The house in which John lived was put up before he was married, while all lived together; can not tell whether it was finished before he moved into it; the old man was frail for some years before he died. Andrew was oldest son, but two sons, Andrew and John. Old Mr Mehaffy had no other lands but those. Three daughters married, one to Dobbs, one to Love, and one to Allison; there is a daughter of Allison’s lives on the place, lived there before her grandfather’s death; Andrew farmed lower end, and John farmed upper end: would rent for 150 dollars; the lane would throw both houses on upper end, where road went; do not know whether there was a division line or not; do not know whether they worked to the road or not, or whether there was a line or not. The road I speak of was stopped up sometime after John went to live in his new house.</p> <p>Cross-examined.—John continued to live in same house till his death; the upper part John farmed exclusively himself; never knew any body to farm any part after John moved there; never knew him to pay rent, or give share for occupying it; John built a tolerable log barn and tenant house; cleared a good deal of land; not a great deal cleared on upper end when John went there: thirty or forty acres cleared at the time John went there to live; that much above old house on end John took; fifteen or twenty acres about the house, and field up in the woods: I bought timber from both Andrew and John; cut in the same place; paid them both for it, this was in 1812 or 1813. Thomas Craighead bought all his timber for his barn from the two men; this was since Thomas Mehaffy’s death, in 1813 or 1814.</p> <p>Application of John Mehaffy, for 200 acres of land, in South Middleton; improved in 1792.</p> <p>March 1819. Deposition of John Mehaffy read: warrant to John Mehaffy, for 200 acres of land, adjoining lands of Gilson Craighead, P. Lobach, David Eby, Henry Eby, on Yellow Breeches creek, situated in South Middleton township: interest from 1st of March 1755, dated, the 12th of March 1816, not marked executed: survey on Thomas Mehaffy’s warrant, executed by P. Davidson, deputy surveyor; made on the 17th of April 1835, in pursuance of a warrant to Thomas Mehaffy, dated the 10th day of June 1762; first survey 197 acres; second survey 185 acres 97 perches.</p> <p>Receipt for payment of purchase-money by Thomas Mehaffy, carried to credit of John Mehaffy, when patent was procured; balance of patenting money 217 dollars; paid by John Mehaffy and his sons.</p> <p>Patent to James and Thomas Mehaffy, 185 acres 97 perches, and allowance; surveyed in pursuance of a warrant to Thomas Mehaffy, dated the 10th of June 1762, whose right, patentees have, &c.</p> <p>Patent dated the 28th of June 1S36.</p> <p>Deed from Andrew Mehaffy, John Mehaffy, Margaret Mehaffy, and Martha Marshall to David Eby,'dated the 1st of July 1807.</p> <p>This deed was for a small part of the whole tract, but not any part in possession of the terre-tenants, and contained a recital that it was part of the land of which Thomas Mehaffy died seized. And the object of the evidence was to show an acknowledgment by John Mehaffy, that his father had died seized of the whole of the land, including that in dispute.</p> <p>William Line, sworn.—In 1814 I was deputy surveyor of the county; was doing business in South mountain; Love’s eldest son mentioned to me that the Mehaffys held a tract of land for which they had no warrant; John Mehaffy asked me and the others about, how they had better have that matter fixed. I told them they had better get a warrant; and having understood that they held it in common; heard it repeatedly from the parties, John and others; I told them they had better take out a warrant in trust for the use of the heirs, and I advised them to have it surveyed immediately. The next day or day after, I did make a survey of the whole tract; and my recollection now is, that there was an application in trust for the use of all the heirs: when I went to Harrisburg, I found this warrant of 1762 to Thomas Mehaffy; in the year 1807, I undertook to build an addition to Eby’s house; he bought the timber from Andrew Mehaffy; the lower part of the tract Eby, Mehaffy, and myself, went out. Andrew Mehaffy pointed out the line between him and his brother John, which each claimed up to; I went on and cut and hewed the timber; John came out to see whether I was transgressing; both pointed out the lines through the fields; space left up to the line not farmed by either party; this was the same year Eby purchased; and said Mehaffy wanted to sell more; Andrew frequently spoke to me about this, and wanted me to buy. John also spoke to me; I told them I did not think the title was good: I understood from them both that they held the land in common, and the heirs would convey as they conveyed to Eby; that there was land enough left for the other heirs, in the same tract; they spoke of the whole tract as I understood them; I understood from them the whole tract was common land; the lines in the field was on one side called Andrew’s tract, and the other John’s tract; did not learn object of line; each man observed his side of line in selling timber; John frequently farmed land on Andrew’s side; put in fields for him; I have heard John speak of a will, making a division of the land as well as the other members of the family.</p> <p>Cross-examined.—Heard them frequently speak of a will; do not recollect ever hearing John claim this land as his own, till execution of partition distinctly; John was an exceedingly easy man; never knew of John paying any rent; he did not raise a great deal till his sons grew up; they seemed to live well enough; their lands were exhausted; when his sons grew up they cleared land; John was an easy, inoffensive man; John opposed the holding of the inquisition and claimed the land as his own.</p> <p>Plaintiff.—-In 1814 there was no separate claim set up by John and Andrew, when the application was made; John was an ignorant man; I have every reason to believe they placed implicit confidence in what I advised.</p> <p>Rebutting evidence by defendants. Testimony of I. B. Parker, read:</p> <p>It is admitted, that Isaac B. Parker, Esq., has sworn that upon the proceedings upon the writ of partition and valuation of the real estate of Thomas Mehaffy, deceased, John Mehaffy, the father of the present James and Thomas Mehaffy, appeared in court whenever notice was served upon him, and denied that Thomas Mehaffy at the time of his decease, had any title to the land mentioned in the said proceedings, and that when called upon on the return of the rule upon the heirs to accept or refuse to accept the land at the valuation, he appeared in court and said, that he would not accept the same, but that the land was his own and he would hold it.</p> <p>James M’Clune, sworn.—These defendants have the whole land except about 2\ or 3 acre's, a patch embracing the old house and orchard; they are now in the occupancy and enjoyment of the whole tract; took it by force within eleven years back.</p> <p>Sarah Allison sworn.—Lived in same house with uncle Andrew and two aunts when Thomas Mehaffy died. I. was born in the house on that part which John claimed; house not standing. Grandfather lived in the old house on the farm till he died; I have lived there ever since. According to John’s conduct I could hardly tell whether he claimed separate right or not; sometimes they were peaceable and sometimes at variance, but it never extended further than words. After the death of my grandfather every one worked as they could, and took the product themselves. I knew of no particular division; they worked as suited themselves.</p> <p>Cross-examined.—John moved to upper end of place directly after he was married. I. was born in 1781, ten or eleven years old when John was married. Andrew died in 1811. Andrew farmed fields that they now claim on that side of the place; I knew Andrew to farm land upon that side; he did farm there after 1794 or 1795; he fetched the grain home to his own barn; each one took what they raised; nothing but repairs of stabling, &c., done on Andrew’s part. Margaret Mehaffy is about twelve years dead; she lived and died in the same house I live in on the lower part of the land. John nor his sons never paid the other heirs any thing that I know of. No letters of administration ever issued on the estate of old Thomas Mehaffy.</p> <p>Sarah Allison, again.—John never claimed the land that I heard till after uncle Andrew’s death; I lived on the land all the time; he died before the inquisition. I said I did not know from his conduct whether he claimed it or not, because he was sometimes peaceable and sometimes not, about the parts of fields and timber. , They have now got the whole tract but the lot I live on.</p> <p>Defendants’ testimony:</p> <p>Assessment book for 1820, 1831, 1822, South Middleton township—John Mehaffy 100 acres land, valuation 2600 dollars. Mary Mehaffy 100 acres land, valuation-2600 dollars.</p> <p>Assessment b.ook for 1S26, 1827, 1S2S, John Mehaffy 100 acres land, valuation 2000 dollars. Mary Mehaffy 90 acres land, valuation 1800 dollars.</p> <p>Assessment book for 1S17, ISIS, 1819, John Mehaffy 100 acres land, valuation 1000 dollars. Margaret Mehaffy 100 acres land, valuation 1000 dollars.</p> <p>Assessment book for year ISOS, Andrew Mehaffy 141 acres. John Mehaffy 141 acres.</p> <p>Year 1802, Margaret Mehaffy 190 acres. Andrew Mehaffy 125 acres.</p> <p>Year 1805, John Mehaffy 125 acres. Andrew Mehaffy 125 acres.</p> <p>Defendants close.</p> <p>Plaintiffs again:</p> <p>Sarah Allison, again.—Andrew claimed the land as an heir in common with the others; never claimed it as his own.</p> <p>Plaintiffs’ points:</p> <p>1. The recognizance in this case is in the nature of a judgment; the consideration cannot be inquired into upon this writ of scire facias. The orphans’ court had jurisdiction, and its decree cannot be questioned iu this collateral way.</p> <p>2. Only the “right and title” of Thomas Mehaffy, deceased, import to have been vestsd in Margaret Mehaffy by the decree of the court. The want of title in him, cannot, therefore, constitute any defence to this scire facias.</p> <p>3. This scire facias is based upon a debt of record; that record imports verity, and its validity cannot, in this suit, be questioned. If there be any remedy in such cases, it is by obtaining the record to be amended on a bill of review. ‘</p> <p>4. The taking of the land by Margaret Mehaffy at a valuation, is equivalent to a purchase under sale by administrators under a decree of the orphans’ court. It is virtually a judicial sale, and no defence can be made to the payment of the price of the land on the ground of defect of title in the deceased;—caveat emptor appliesJ</p> <p>5. The deed and the recitals in the deed, from John Mehaffy, and the other heirs of Thomas Mehaffy, in 1807, to David Eby, are evidence that the parties at that time considered the title to the whole tract to be in the heirs of Thomas Mehaffy, not in his son John.</p> <p>6. If the warrant of 1762 is descriptive of the land, that coupled with the residence proved, vested a title to the land in old Thomas Mehaffy, which, upon his death, would descend to his heirs under the intestate laws, and would give jurisdiction to the orphans’ court to award a writ of partition or valuation, and to vest the title in any one taking the land at the appraisement.</p> <p>7. That the warrant to John Mehaffy, Jun., in 1816, and the subsequent survey and patent in 1836, would not defeat or affect the original title.</p> <p>8. That John Mehaffy, Jun., in his lifetime, was tenant in common with his other brother and sisters, unless a legal transfer of the title was made to him by his father in his lifetime, and his possession is not to be presumed to have been adverse to his co-heirs, and the lapse of time, under such circumstances, would not vest in him a right, in exclusion of his brother and sisters.</p> <p>9. The application and oath of John Mehaffy, for, and taking out the second warrant after his father’s death, was fraudulent, and vested no title in him or his heirs, and if not void absolutely, he (John) held it in trust for the heirs and representatives of Thomas Mehaffy his brother.</p> <p>10. The ejectment brought by Margaret Mehaffy, in 1818, against John Mehaffy, Jun., and still pending, prevents the operation of the statute of limitations, from the time such ejectment was instituted, and the recital in the deed to Eby in 1807, and other proof, repel any presumption of adverse holding at that date.</p> <p>11. During the pendency of her ejectment Margaret Mehaffy can disclaim any interest under the decree of the orphans’ court.</p> <p>Defendants’ points: The court is respectfully requested to charge the jury upon the following points, and to file their charge of record:</p> <p>1. That the title to the tract of land containing 104 acres and 132 perches, as designated in the record of the proceedings in partition and marked No. 2, and taken at the appraisement by Margaret Mehaffy is the only land the title to which is in controversy in this suit.</p> <p>2. If the jury believe that Thomas Mehaffy took out a warrant for the tract of land in 1762, of which the land in controversy is a part, and never had that warrant executed by a survey, and that the said Thomas Mehaffy relinquished the land in controversy to his son John Mehaffy as early as 1792, 1793, or 1794, and the said John Mehaffy took possession of the same in the lifetime of his father, and that it was separated from the land retained by his father by a known and consentable line between them,and that the son John Mehaffy resided upon and improved the land thus relinquished by the father from that period until the present time, it would operate as an abandonment by the father of the land thus relinquished in favour of his-son, and the said John Mehaffy might have taken out a warrant for the land, and perfected the title in his own name, if he had chosen to take that course.</p> <p>3. If the jury believe that John Mehaffy went into possession of the land now in controversy in the lifetime of his father Thomas Mehaffy, as his own, and used it, and farmed it, and occupied it as his own, and there was a known and consentable line of boundary between it and the land on which Thomas Mehaffy had lived and Andrew Mehaffy and his sisters -after their father’s death, and so continued from that time until-the present day, that the statute of limitation is a bar to the plaintiff’s recovery against the terre tenants, James.and Thomas Mehaffy, in this suit.</p> <p>4. If the jury believe that Thomas Mehaffy, the father, put his son John Mehaffy into possession of the land now the subject of controversy, at the time of his marriage, to live on and improve the same as his own, and designated the boundaries of the same which were known to him and his other children after his death; and that the said John Mehaffy, during bis father’s lifetime and after his death, expended his money and his labour in the erection of buildings and clearing land and improving it, thereby greatly enhancing the value of the same, then the possession of the present terre tenants, children of the said John Mehaffy, cannot now be disturbed by reason of any claim founded upon the original title of Thomas Mehaffy.</p> <p>5. If the jury believe that Margaret Mehaffy derived no title to the land in dispute by reason of the proceedings in partition as given in evidence, then the plaintiffs are not entitled to recover in this suit either from the surety, Moses Eby, or from the terre tenants, James and Thomas Mehaffy. ,</p> <p>Charge of the court to the jury:</p> <p>“ The suit you are about to decide by your verdict, arises upon a recognizance taken in the orphans’ court of this county, in favour of Thomas Dobbs and Janet his wife, in right of his wife, who was a daughter of old Thomas Mehaffy, deceased, to secure her interest of the money in the part No. 2, of his real estate, accepted at the appraisement and valuation of the inquest by Margaret Mehaffy her sister, against Moses Eby, who is her surviving cocognizor in the recognizance; with notice to James Mehaffy, Thomas Mehaffy and Martha Mehaffy, children of John Mehaffy, deceased, who are said to be in possession of the same property bound by this recognizance. To bring the facts more particularly to your view and-refresh your recollections; it may not be amiss to recapitulate the testimony.</p> <p>“On the 12th of December 1815, Margaret Mehaffy, who also entered iuto this recognizance, presented her petition to the orphans’ court of this county, for a writ of partition and valuation of the real estate of her father, Thomas Mehaffy, deceased, on which petition the court, after certain intermediate proceedings previously detailed to you, on the 16th of September 1816, awarded an inquest, which was returned by the jury and sheriff, dividing the property as set forth, and fixing the valuation upon it as stated, which was confirmed by the court on the 10th of December 1816; and rule upon the heirs, granted to accept, &c.; a pluries rule, to same effect, 11th of December 1817; returned 18th of February ISIS; and, all the parties refusing to take, &e. Margaret Mehaffy took part No. 3, which was confirmed to her by the court. David Kby and Moses Eby, the defendant, approved by the court as her sureties, who with her entered into a recognizance to pay the plaintiff’s testator in this suit 707 dollars 36 cents on the 12th day of February 1819, with interest from the 12th of August 1818. On this recognizance the scire facias you are now trying issued, and that sum with its interest the amount claimed by the plaintiffs in this suit. It is resisted by Moses Eby, the defendant, and also by the Mebaffys, who are alleged to be in possession of land bound by the lien of it, and out of which the money may be made, if you find against them on their issues. Eby, the defendant, denies his liability to pay, because the land taken by Margaret Mehaffy, as he says, was not part of the estate of Thomas Mehaffy, deceased, and consequently no consideration given for the recognizance entered into; and the terre tenants resist the payment, because the land, as they say, belonged to their father, and not to their grandfather; and that the land in dispute at the time of partition, was their father’s separate estate, and not a portion of the estate of Thomas Mehaffy, their grandfather.</p> <p>“ Now we say, as matter of law, that if the tract of land, No. 2, in the inquest was the estate of John Mehaffy, the father of the terre tenants, and not the estate of Thomas Mehaffy, and formed no part of his estate, a recovery could not be had against the defendant in this suit; and a proper disposition of this important inquiry by you as matter of fact, would in my opinion have disposed of the case. But the counsel upon each side have furnished us with a list of points numbering twelve upon one side and five upon the other, which we will endeavor to answer according to our best judgment, formed by a hurried investigation during the trial of this cause.</p> <p>Plaintiffs’ 1st, 2d, 3d and 4th points read and answered in the negative.</p> <p>The 5th point is crossed out and withdrawn.</p> <p>The 6th point read. Answer:—“The deed and recitals are evidence, but the extent to which they are evidence in proving the facts indicated by this point is for your determination, not ours.</p> <p>The 7th point read. Answer:—“This is true unless you find Thomas Mehaffy had parted with his right as indicated by the defendant’s points which I will presently read.</p> <p>The Sth point read. Answer:—“The facts above stated in this point would not defeat or affect the original title.</p> <p>The 9th, 11th and 12th points read.—And answered in the affirmative.</p> <p>The 10th point road. Answer:—“ Under all the circumstances of this case we cannot answer this point in the affirmative.</p> <p>Defendant’s points read. “ The 1st, 2d, 4th, and 5th, answered in the affirmative:—If you find the facts as there stated; but whether the facts recited in those points are in accordance with the facts of the cause will be an important inquiry in your investigations. You must recur to the testimony for the purpose of discovering if possible a relinquishment as indicated by the 2d point, and an entry upon the land as stated in the 4th point. I cannot recall any part of the testimony leading to such conclusion. I cannot recollect any witness that proves John entered into possession of the tract in question as his own in the life time of his father, or that he was put into it by his father to live upon and improve it as his own. Mr White speaks of the land as far back as 1795, which was after the death of Thomas Mehaffy his father, and that then he John was living on it and farming it as his own, but no indication so far as I recollect his testimony that John claimed it as his own land in exclusion of his brothers and sisters. Andrew also farmed the other part of the place; the two brothers seemed to have had it between them in some way, but precisely how is not so easy to determine. Robert Moore speaks of his (John) being on the property from about the same time 1794 or 1795. This is also after the death of his father. Captain Ege, Jacob Shoff, and Jacob Richwine, all speak of it about the same time. I cannot recall a single adverse act in relation to the land in dispute done by John as testified to by any witness until long after. Richard Craighead knew the land since 1777; Thomas Mehaffy lived there then and died upon it in 1792 or 1793; and says that after the old man’s death he bought timber from both Andrew and John, and though cut in the same place paid both them for it: he may be mistaken as to the year but can you doubt the fact as testified to by him; that he did buy timber from them after the death of their, father; and Judge Line swears that as late as 1814 he heard repeatedly from both the parties that they held the whole tract in common, and though they showed him the line so much talked about in 1807, they in 1814 admitted to him the whole tract of land was held in common among all the heirs. Sarah Allison, if you believe her, swears, that though she lived on the land all the time from the death of her grandfather Thomas Mehaffy, she never heard John claim this land till after the death of her uncle Andrew; and she swears positively that Andrew did farm fields on the tract in dispute after 1794 or 1795; that he brought the grain home to his own barn and that each took what they raised; now can it be, if these facts are believed, that the confidence thus induced by John’s profession to hold in common with the other heirs up as late as 1814 or until the twenty-one years had elapsed can be termed by him in fraud of his professions to his own advantage as it suits him, pleading the statute as a bar to their recovery, if he did acknowledge that he held in common with the other heirs as the witness proves, the statute of limitations will now afford the defendants no protection. See 7 Watts 583.</p> <p>Defendant’s Sd point read. Answer:—“ If the entry as his own mentioned in this point is designed by counsel to have been under an agreement or arrangement with his father, or as adverse to his father’s right then we answer in the affirmative.</p> <p>“ But the application of the law stated to the facts proved in the present issues, is for you, and the correctness of the facts recited in this point is also for you. I must confess so far as I can understand them, they essentially differ from those proved. The whole facts, however are for you; we do not design taking them from you nor controlling your judgment in relation to them.</p> <p>“ The case as it strikes us is a plain one about which you cannot have much difficulty. Causes must be tried in court upon the law and evidence in each particular case, and not by considerations of hardship. If a party comes into court with a proper claim, sustained by competent testimony, they should not be defeated by imaginary hardships, which for my part I am at a losss to perceive in the present controversy. If the daughter of Thomas Mehaffy, deceased, was entitled to a share of her father’s estate, and the terre tenants in possession of the property bound by her recognizance, is the hardship of giving it to her descendants alone to defeat her? We sincerely hope not,- but tiust that this case, like all others, will be disposed of by you according to law and the testimony given you in the cause. The facts are for you, the law we have stated.”</p> <p>Charge excepted to by defendants.</p> <p>Errors assigned:</p> <p>1. The court erred in answering the plaintiff’s ninth point in the affirmative.</p> <p>2. In answering the plaintiffs’ eleventh point in the affirmative.</p> <p>3. In answering the plaintiffs’ twelfth point, which is unintelligible, in the affirmative.</p> <p>4. In their answers to the defendant’s first, second, fourth and fifth points.</p> <p>• 5. In their answer to the defendant’s third point.</p> <p>6. The court perverted the truth of the case in their whole charge to the jury.</p>

<p>ERROR to the common pleas of Centre county.</p> <p>This was an action of assumpsit, founded upon a book account by James James against James Allison. The defendant pleaded non assumpsit infra sex annos, to avoid which the plaintiff called a witness who said:</p> <p>“I was present before the justice at the trial; this account was presented and admitted. It was read to him and he made no objection to it. Items read ; amount 22 dollars and 37 cents. He did not say this account was settled and paid long ago. He did not say any thing; several attempts to settle before we went before the justice; did not object to it; I do not know he ever said he would pay the account; I do not know he ever said it was due and he would pay it. There was some objection to part of the partnership account ; objected to 40 dollars in the partnership account. Pie did not tell me this account was settled and paid long before any transactions between him and James & Pennington; I do not know the account paid. There is corn credited in the store books of James & Pennington. I lived with James; I do not recollect of his getting wheat or beef.”</p> <p>The court below submitted the evidence to the jury, with the direction, that they should determine whether it was such an acknowledgment as took the case out of the act of limitation. And they found a verdict for the plaintiff.</p>

<p>When, by an act of incorporation of aborough,the corporate officers arc authorized to improve and repair the streets, by so doing they do not subject the borough, to an action by any individual for a consequential injury to his property by reason of such improvement.</p> <p>Semble aliter, where there is an allegation and proof of malice, or of a want or disregard of private right.</p>

<p>ERROR to the common pleas of Dauphin county.</p> <p>Jacob Alter, Thomas Taylor and Solomon J. Dewey, trading in the name of Alter, Taylor & Dewey, against Henry C. Berghaus, who is a.co-promissor with George H. Berghaus.</p> <p>This was an action of debt upon a note.</p> <p>“ Philadelphia, 4th February 1836. Twelve months after date we or either of us promise to pay to the order of Alter, Taylor & Dewey, two .thousand dollars, without defalcation for value received. Geo. H. Berghaus.</p> <p>$2000 • Henrt C. Berghaus.”</p> <p>The note having been read in evidence by the plaintiffs, the defendant offered in evidence the deposition of G. H. Berghaus, taken under a commission, having first produced the release of the defendant to him; objected to by Hamilton Alricks.</p> <p>1. That the witness is also a co-promissor in the note, and is to show payment of his own note.</p> <p>2. That he is interested in the event of the suit, as this verdict could be given in evidence for or against him in a subsequent suit.</p> <p>3. That quo adhoc, the two promissors are partners.</p> <p>Objection overruled as to the competency of the witness, and decision excepted to, as to the subject matters of the testimony.</p> <p>The plaintiff then further objected to the reading of the deposition, on the ground that the rule and notice for the commission, was of a commission to R. H. Chinn and Todd Robinson, Jun., and the commission is only executed by R. H. Chinn. Defendant offered also to prove, that this deposition had been filed of record ever since the 28th of April 1838, without any objection being made of its being defectively executed, and was offered in evidence on the former trial of the cause without objection, except as to competency of witness.</p> <p>Objection sustained and defendant excepted.</p> <p>The commission was as follows:</p> <p>Dauphin county, ss.—To Richard H. Chinn and Todd Robinson, Jun., Esquires, Attorneys at Law of New Orleans, in the state of Louisiana, Greeting:</p> <p>Know ye, that, in confidence of your prudence and fidelity, we have appointed you, and by these presents do give unto yon, or either of you, full power and authority, in pursuance of an order made in our court of common pleas, for the county of Dauphin, in a certain cause there pending, wherein Jacob Alter, Thomas Taylor, and Solomon J. Dewey, negotiating in business in the name of Alter, Taylor & Dewey, are plaintiffs, and Henry C. Berghaus, who is a copromissor in a joint and several note with George H. Berghaus, is defendant, to call before you, or either of you, at a certain day and place by you for that purpose to be appointed, all and every person and persons who may be named to you, as well on the part of the plaintiff as on the part of the defendant, or either of them, as witnesses touching the premises mentioned in the interrogatories hereto annexed, and reduce their testimony to writing; and when you shall have so done, you are to send the same before us, in our court of common pleas aforesaid, together with the interrogatories and this writ, under your hands and seals, or of such of you as shall act therein. In testimony whereof, we have caused the seal of our said court to be hereunto affixed. Witness my hand at Harrisburg, the fourteenth day of March, A. D. eighteen hundred and thirty-eight. Geore Mish, Prothonotary.</p> <p>The defendant then gave in evidence as follows:</p> <p>November 7, 1834, letter of plaintiffs acknowledging the receipt ■of draft on the Commercial Bank for 500 dollars, “placed to the credit of your account.”</p> <p>• December 20, 1836, letter of plaintiffs acknowledging the receipt of 54 dollars, “ which will be placed to the credit of your account.”</p> <p>March 29, 1837, letter of plaintiffs as follows:</p> <p>“Doctor George H. Berghaus:</p> <p>“Dear Sir:—Your favour of the ISth inst., inclosing twelve hundred dollars, is duly received, and the same passed to the credit of your account. We will immediately forward you the champagne, •as ordered, and bill of lading in a few days. Your determination to rather look at your goods, than at a list of bad debts, is certainly correct, and we advise you to adhere to that course. ' At the commencement of your business, you very frankly told us your situation, being without capital, &c. &c. We have credited to you a large amount under such circumstances, and-it is well known, both to yourselves and us, that we had unlimited confidence in your honesty and honour; and, under all existing circumstances, which ■it is needless to again mention, you certainly cannot expect us to give up the note of your father for 2000 dollars, when it was first given us as collateral, and is, in fact, the only security that we have for the whole, or any part of our claim; and if you will for a moment reflect, you would not certainly again ask such a thing, and we consider it just to at once frankly give you our ideas; and that is, we are justifiable in holding said note as a collateral, and yet, at the same time, have no hesitation in saying that our confidence in your honour and honesty, and our feelings of friendship towards you are still unlimited and unimpaired. The times in our eastern cities have been desperate, which you are fully apprised of by all late accounts, and we hope you will lose no time in making further remittances.”</p> <p>The court were requested to charge the jury upon the following points, and which they thus answered:</p> <p>- 1. That the receipts given in evidence being for sums of money paid by George H. Berghaus to plaintiffs, and expressed on their face to be “on account,” are to be considered as payments in ease of Henry C. Berghaus, the surety, on account of the note in suit, and therefore that plaintiffs are not entitled to recover.</p> <p>The first point propounded by defendant, asks the court to construe the payments according to the terms of the receipts alone, exclusive of the other evidence in the cause, and assumes the fact that Henry C. Berghaus is the surety. The court say to you, in answer to this point, that, if Henry C. Berghaus was a surety, and these sums were paid on account generally, and no appropriation directed by the payor at the time, and none made by the creditors at the time, these payments ought to be credited in ease of the surety, provided the debt for which he was surety was then due and payable.</p> <p>2. That there is here no evidence showing that the note in suit was given as a collateral security for goods to be purchased after its date; and, therefore, if it is to be considered as a collateral security, it can only be considered as a collateral security for the goods purchased on the 16th of October 1835.</p> <p>To the second point: That, in the opinion of the court, there is some evidence on the subject ofthis note being given as a collateral security, but for what, does not, in the opinion of the court, distinctly appear; and it will be for the jury to determine for what it was collateral security, if collateral security at all. If they find it was not given as a collateral security for goods to be thereafter purchased, then, if treated as a collateral security, it can only be considered as such for the goods purchased on the 16th of October 1835.</p> <p>3. That the receipts given in evidence by the defendant, being expressed to be for moneys paid “.on account” generally, are to be considered as not appropriated either by the plaintiffs or the defendant at the time of payment; and, therefore, the law will apply them to the first items of indebtedness, or to the oldest debt, and particularly so in this case, when, if thus applied, they will go in ease of a surety.</p> <p>To the third point: That if the jury shall find from all the evidence, that the moneys were paid generally on account, and not appropriated, as before stated, the law will apply them to the first item of indebtedness then payable, and this, whether in ease of a surety or not.</p> <p>4. That the receipts given in evidence by the defendant, being for so much money paid generally, and as expressed in those receipts “ on account,” are to be considered as payments on George H. Berghaus’s account generally, and are not, or were not at the time of the payments, specifically appropriated to any particular account; and, therefere, the law will appropriate them to the first items in the account, and to the oldest debt.</p> <p>To the fourth point: That if the receipts given in evidence by defendant, are to be considered as payments on George H. Berghaus’s account generally, and were not appropriated by either debtor or creditor, as before stated, the law will appropriate them to the first items in the account then payable; and, in answer to both the 3d and 4th points, the court say that the time at which the debt accrued is not the criterion, but the time when the debt was due and payable.</p> <p>5. That if the jury believe this note was given as a collateral security, it can only be here extended so far as to embrace the goods purchased on the 16th of October 1835, by George H. Berghaus; and that the payments first made by George H. Berghaus to the plaintiffs, or so much as may be necessary, were not specifically appropriated at the time of payment by George H. Berghaus to other accounts, and therefore must be applied by plaintiffs to the note in suit.</p> <p>To the fifth point: If the jury believe the note in question was given as collateral security, the jury must next determine, from the evidence, for what it was collateral security. If they think it only embraced the goods purchased on the 16th of October 1835, they will confine it to that. If George H. Berghaus did not specifically appropriate the first payments he made, at the lime of making sucia payments, the plaintiffs were not obliged to apply them to the note in suit, but could make the appropriation of them to either debt due them, as before stated.</p> <p>6. That if at the time this note was forwarded by Henry C. .Berghaus to the plaintiffs, on the 11th of February 1836, it was forwarded in payment of the draft accepted by them, dated the 16th of October 1835, no subsequent arrangement of plaintiffs and George H. Berghaus could convert it into a collateral security for any goods purchased after the 16th of October 1835, without the consent of Henry C. Berghaus, the surety, and that here no testimony has been given to show that the surety ever assented to such arrangement.</p> <p>To the first proposition contained in the sixth point the court assent,and charge you as requested; and they say to you, that they have not been able to discover any thing in the evidence to show that Henry C. Berghaus ever altered or extended his original undertaking after giving the note in question.</p> <p>7. That if, from defendant’s own showing, the payments by George H. Berghaus of 500 dollars, received by plaintiffs on the 7th of November 1836; 54 dollars December 20tla, 1S36; 1200 dollars 29th of March 1S37, were received by them “on account” generally, and not then specifically appropriated by them, they could not appropriate them on the 31st of July 1837, to any account other than the oldest indebtedness, to the prejudice of the surety, Henry C. Berghaus, who has the right to claim now that they should have appropriated to the note in suit, in ease of him who was a mere surety.</p> <p>To the seventh point: The court say, that if you find the payments by George H. Berghaus, of 500 dollars, received by plaintiffs on the 7th of November 1836; 500 dollars December 8th, 1836; 54 dollars December 29th, 1836; 1200 dollars on the 29th of March 1837, were received by plaintiffs generally, and not then specifically appropriated, they could not, on the 31st of July 1837, change the appropriation to the prejudice of the surety, Henry C. Berghaus. And if the debt for which he was surety was the oldest debt, and the longest due, he would have a right to claim the payments to be appropriated in ease of himself,.;ap such surety, if they had not been appropriated at the times of payment, or within a reasonable time thereafter. • -</p> <p>8. That the letter of the 18th of March 1837, from George H. Berghaus, to the plaintiffs, enclosing 1200 dollars, is to be considered as directing the appropriation of that sum to the note in suit, that the plaintiffs were bound, at the receipt, of that money, so to apply if, and no subsequent arrangement between plaintiffs and George H. Berghaus could change that appropriation to the prejudice of Henry C. Berghaus, the surety in this note, without his consent.</p> <p>To the eighth point: The court say they do not consider this letter of the ISth of March 18-37, as directing the appropriation of the 1200 dollars thereby remitted to the note in suit; but, if it did, the plaintiffs were bound so to appropriate it, and no subsequent arrangement between the plaintiffs and George H. Berghaus could change that appropriation to the prejudice of Henry C. Berghaus, without his consent.</p> <p>9. That if, from all the testimony and circumstances of this case, the jury believe that the payments of 500 dollars on the 7th of November 1836; 500 dollars December 8th, 1836; 54 dollars December 20th, 1836, and 1200 dollars March 9th, 1837, were intended when remitted by George H. Berghaus, (or so much of them as was necessary,) to be applied to the note in suit, the plaintiffs were bound so to appropriate them, and not having done so at the time of their receipt, the jury may appropriate them, or so much-of them as may be necessary to the extinguishment of the note it suit.</p> <p>To the ninth proposition the court assent, provided such intention of George H. Berghaus were communicated at the time to plaintiffs, and we charge you, as therein requested, with this qualification.</p> <p>In considering the answers which the court have made to the points propounded, you will bear in mind the law as laid down in the general charge given to you; and taking all the facts into consideration, and applying the law to them, do justice to these parties, according to the evidence in the cause.</p> <p>The court think that the law, and the facts of the case, are with the plaintiffs; but, of course, you will decide the facts for yourselves. You will suffer no feelings for or against either of the parties to have any influence upon your judgments, but will hold the parties responsible, just according to the contracts into which they have entered, and in the manner in which they have so bound themselves.</p> <p>Filed at the request of the counsel on both sides, both of whom except to it.</p>

<p>ERROR to the common pleas of Dauphin county.</p> <p>Alexander Read, surviving James Gray, against John Snevily. This was an action of assumpsit in which the following declaration was filed:—•</p> <p>“ John Snevily late of the county aforesaid, yeoman, was summoned to answer Alexander Read, surviving James Gray, deceased, of a plea of trespass on the case, &c. Whereupon, the said Alexander, by his attorney, complains—That whereas, on the 15th day of March, A. D. 1830, Alexander Read aforesaid, and James Gray, under the name and firm of Read & Gray, recovered a judgment in the common pleas of the county of Schuylkill, against the said John Snevily, for the sum of two hundred eighty-five dollars and eighty-two cents debt, and five dollars and sixty-two cents costs, being numbered on the records of said court 62, of March term, A. D. 1830; and whereas, a writ of execution called a testatum capias ad satisfaciendum was sued out by said Read & Gray upon said judgment, directed to the sheriff of the county of Dauphin, No. 75 of July term 1832, against him, the said John Snevily for the said debt and costs, and the said writ of execution being delivered to the said sheriff of Dauphin county, he, the said sheriff, arrested the said John Snevily at Harrisburg, in the said county of Dauphin before the return day of the said writ of execution, to wit, on the 27th day of June, At D, 1S32, and the said John Snevily being then and there so arrested, and in custody of the said sheriff, Samuel Shoch, Esq., the attorney for the said Read & Gray, at the special instance and request of him, the said John Snevily, discharged him, the said John Snevily, from the arrest and custody of the said sheriff on the said execution, without the said John Snevily having paid or satisfied the said debt and cost or any part thereof, Snd the said sheriff then and there made return of the said writ of execution, to the said court of common pleas of Schuylkill county that he had taken the body of the said John Snevily, and that he, the said John Snevily, was discharged by S. Shoch, Esq., attorney for the said Read & Gray, whereby the said judgment of them, the said Read & Gray against the said John Snevily in the said court of common pleas of Schuylkill county, became satisfied and extinct.</p> <p>And whereas, afterwards to wit, on the first day of January, A. D. 1S39, at the county aforesaid, the said debt of two hundred eighty-five dollars and eighty-two.cents, with interest from the said 15th day of March, 1830, and costs eight dollars and thirty-six cents, being wholly unpaid, he, the said John Snevily well knowing the same, and in consideration of the said debt and his being discharged from arrest as aforesaid by the said plaintiffs, undertook and promised to pay to the said Alexander Read surviving James Gray, who had deceased, the said sum or debt of two hundred and eighty-five dollars and eighty-two cents, with lawful interest on the same from the said 15th day of March, 1830, and the said costs when he should be thereto required—nevertheless, the said John Snevily, though often required, the said debts and cost unto him the said Alexander, hath not paid, nor any part thereof, but the promise and undertaking of him, the said John Snevily so as aforesaid made, wholly disregarding, he, the said John Snevily, to pay the said debt and costs to him, the said Alexander Read, surviving the said James Gray, deceased, hitherto hath refused, and still doth refuse, to the damage of the said Alexander Read, six hundred dollars, and therefore he brings suits,” &c.</p> <p>The plaintiff gave in evidence the record of the original judgment against the defendant, the capias ad satisfaciendum, and the return off the sheriff “discharged by S. Shoch, attorney for plaintiff,” and then offered the following deposition of Samuel Shoch, Esq.</p> <p>“ In pursuance of the annexed rule to take depositions on the part of the plaintiff, personally appeared before me, Thomas Lloyd, Esq., a justice of the peace in and for the county of Lancaster, Pa., aforesaid, at my office in Columbia,-Lancaster county aforesaid, on Thursday, the 21st day of November, 1839, Samuel Shoch, who being by me first duly sworn according to law, deposed and said, that sometime before June, 1832, but how long before, he cannot exactly recollect, he was employed by the firm of Read & Gray of Philadelphia, consisting of Alexander Read and James Gray, to collect a debt due the firm by John Snevily, the defendant in the above stated case, on a judgment note for two hundred and eighty-five dollars and eighty-two cents, which had been entered on the records of the court of common pleas of Schuylkill county, to March term, 1830, No. 62, and also on the records of the court of common pleas of Dauphin county, to April term, 1830, No. 77, before he was so employed. That a testatum fieri facias and capias ad satisfaciendum was issued to Dauphin county from Schuylkill county, to July term 1832, which was delivered to Jacob Seiler, Esq., sheriff of Dauphin county. That John Snevily repeatedly promised to deponent that he would pay the debt interest and costs due on the said execution and judgment. That on the 27th of June 1832, sheriff Seiler and John Snevily aforesaid came to the office of deponent in Harrisburg, and the said Snevily fraudulently and falsely represented, that he would have funds in the Harrisburg Bank on the following day, and that he would give deponent a cheek on the said bank for one hundred and fifty dollars, which, if paid should be a credit to that amount on the judgment of Read and Gray against him—that deponent accepted the check on those terms, and gave defendant a conditional receipt in accordance. That on the day following, deponent presented the check at the said bank during banking hours, and received for answer that John Snevily had no funds there, and there were no funds there to meet and pay the check—that Snevily on that day or a day or two after absconded from Harrisburg, and was absent several months—that this deponent has never received a single cent in payment or on account of the said debt or judgment, nor has the plaintiff been satisfied or paid in any way or manner, so far as this deponent is informed—nor has deponent, nor plaintiffs ever received a cent on the said check—that the above claim still remaining in this deponent’s hands, for collection, he (the deponent) had frequent negotiations with the defendant Snevily, relative to the payment of the said debt, in all of which he always admitted his indebtedness, and frequently during the years 1836, 1837, and 1838, he promised to pay this deponent or the plaintiffs, the whole amount due, but has never paid any thing. That sometime in the winter of 1836 or 1S37, deponent met John Snevily in Philadelphia, and spoke to him about this debt—when Snevily told this deponent that he (Snevily) was endeavoring to compromise with his creditors in Philadelphia, and that he believed he would succeed—but that he would not ask a compromise of the debt due by him to Read & Gray, for that he intended to pay them in full, and which payment he would make in a short time. James Gray one of the plaintiffs in the judgment note, on which the execution issued, is dead—having died before the bringing of this suit. The deponent has no interest in this suit of any kind either as attorney or otherwise—having given up to James M’Cormick, Esq., the whole business before this suit was brought—and this deponent never had any interest as attorney either beyond the expectation of a fair compensation for his professional services about which he had no agreement or understanding with his clients. In all these promises of payment by the defendant John Snevily to the plaintiff of the amount of debt due by him (Snevily) there has been no condition annexed—but they were always unqualified and absolute.”</p> <p>Sworn and subscribed before me at my office, this 21st of November, 1839, at 8 o’clock in the evening—no person appearing or attending to cross-examine the witness. Thomas Lloyd, Justice of the Peace.</p> <p>Defendant objected to this deposition for the following reasons:</p> <p>1. That plaintiffs are not entitled to recover.</p> <p>2. The deposition is not admissible under the rule of court, and sworn to after made.</p> <p>Objections overruled and defendant excepted.</p> <p>The court were requested to charge the jury on the following points:</p> <p>1. The plaintiff’s declaration contains no sufficient consideration in law to support the promise and undertaking laid, and therefore the plaintiff cannot recover-in this suit.</p> <p>2. The arrest and discharge of defendant on the execution as set out in plaintiff’s declaration, was a full satisfaction and discharge of the debt, then existing and now claimed in this suit.</p> <p>3. The arrest and discharge of defendant as stated, amounted to payment and discharge of the debt, and any subsequent promise to pay said debt was nudum pactum and void.</p> <p>4. The arrest and discharge of defendant, as set out in plaintiff’s narration, was an extinguishment of the debt, and there was no legal or moral obligation binding upon defendant in relation to said debt, which would support a promise to pay it.</p> <p>5. Under the facts and law of this case, the plaintiff is not entitled to recover.</p> <p>The court thus charged the jury:</p> <p>“It appears by the evidence that the plaintiff had a judgment against defendant under a capias ad satisfaciendum issued, on which the defendant was arrested by the sheriff of this county, &c. When so arrested, he proposed to arrange the matter by giving his check for part, 150 dollars, of the debt, &c., promising to pay the balance, in consideration of which the attorney discharged him from the arrest. That his check was presented to the bank the next day, but there were no funds thereto meet it, &c.; that the defendant has repeatedly since promised to pay the amount of the judgment. If you find the facts to be as stated, the plaintiff is entitled to your verdict. The circumstances of the original indebtedness would be a sufficient consideration for the promise to pay, which, if made, you should, in honesty, compel the defendant to comply with, by rendering a verdict for the amount claimed. The plaintiff’s remedy under his former judgment is gone, in consequence of the defendant’s arrest and discharge, and if the plaintiff could not recover here, he would lose an honest debt due to him, in consequence of having trusted to the defendant’s promises, which he has not performed.</p> <p>“ In answer to the point propounded on behalf of the defendant, we say:</p> <p>“ 1. That the plaintiff’s declaration does contain a sufficient consideration in law to support the promise and undertaking laid, and if proved, the plaintiff can recover in this suit.</p> <p>“ 2. That the arrest and discharge was a discharge of the judgment and execution, which could not thereafter be further proceeded on, but did not.so satisfy the claim of the plaintiff on defendant, but that the latter might bind himself by promise to pay it.</p> <p>“ 3. That the arrest and discharge did discharge the debt so far as the judgment and execution were concerned, but that a subsequent promise to pay it was not nudum pactum and void.</p> <p>“ 4. That the arrest and discharge was an extinguishment of the ■debt so far as regarded any further proceedings upon the judgment, and that although there was no legal obligation binding on defendant, yet there was a moral obligation which would support a promise to pay the debt to the plaintiff, if he made one.</p> <p>■ “ 5. That under the facts and law of the case, if the jury believe the evidence, which appears to be uncontradicted, the court believe the plaintiff entitled to recover, and that not to permit him to do so would not be consistent with the honesty and justice of the case, anda due regard to the law, which was made to bind parties to the honest performance of the contracts into which they enter.”</p> <p>Errors assigned:</p> <p>1. The court erred in overruling the objections to the deposition of Samuel Shoch.</p> <p>2. In their answers to defendant’s points.</p>

<p>ERROR to the common pleas of Perry county.</p> <p>Abraham Miller, administrator of John Moore, deceased, against Michael Smith and John Smith, executors of Michael Smith, deceased. This was an action of debt for a legacy, and brought to recover one hundred pounds bequeathed to the testator’s grandson, John Moore, who died after the testator, and before he arrived at the age of twenty-one years:—the question being whether the said legacy was vested or contingent. The material part of the testator’s will is as follows:</p> <p>“As to such ' worldly estate wherewith it hath pleased God to bless me, I give and dispose thereof as follows:” (Debts and funeral expenses to be paid as soon as convenient, by his executors. Two sons appointed executors. Thejract he lived on to be divided: one part to Michael, and retain reservation to widow; 200 acres, another tract, devised to Michael.) “Fourteen acres (described) to be conveyed to John Mineger, a grand-son, as soon as he arrives at twenty-one, as convenient.” (The residue of first tract devised to-go to his son John, together with another tract of 100 acres; another 200 acre tract to be divided, one-half to be conveyed to William Ramsay, the other half to his son John: special privileges and bequests to his wife to considerable amount :)4“ and my executors shall sell or dispose of my personal estate such as I do not bequeath, and out of the proceeds my said executors shall pay unto my son-in-law. Peter Deerdouff, 50 pounds lawful money of the United States, on the first day of May 1S22, and the further sum of 50 pounds, like money on the first day of May, in the year 1S23; and further my said executors shall pay unto my daughter, Mary Dentsler, 30 pounds like money, on the 1st day of May 1S24, and the further sum of 35 pounds in the year 1829; and the further sum of 35 pounds to the said Mary or her heirs, in the year 1834.</p> <p>“ And further, my said executors shall pay unto my daughter Hestina Moore, 30 pounds in the year 1825, and the further sum of 35 pounds in the year 1830; and the further sum of 35 pounds unto the said Hestina Moore in the year 1835.</p> <p>“ And my said executors shall pay unto my daughter Sarah Miller, 30 pounds like money, in the year 1826; and the further sum of 35 pounds in the year 1831, and 35 pounds of like money in the year 1836.</p> <p>“ And my said executors shall pay unto my daughter Elizabeth Miller 30 pounds like money, in the year 1827, and 35 pounds in 1832, and 35 pounds in 1837.</p> <p>“ And further, my said executor shall pay unto my daughter Nancy Martin, 5 pounds in the year 1S22, and the further sum of 5 pounds yearly and every year afterwards, until the residue of 100 pounds be fully paid unto her or her children.</p> <p>“ And further, my said executors shall pay unto my grand-son, John Moore, 100 pounds like money, as soon as he arrives to be 21 years of age.</p> <p>“And further, I give and bequeath unto my son John, one of my horse creatures, his own choice; and it is my will and I do order that my said executors shall pay all the aforementioned sums of money on the 1st day of May in each and every year before mentioned, whether in writing or in figures, unto the said legatees or their heirs.”</p> <p>“ Know all, &c. that I Michael Smith, &c. have this day made and published the foregoing will, to be my last will and testament, and further it is my will, and I do hereby empower my sons Michael Smith and John Smith, my executors therein mentioned, to have the same proven and recorded as a lien upon all my tracts of land, situated and bounded as is therein mentioned, and the said will being thus proven and recorded after my decease, shall be a lien on the said tracts of land, until my said executors or their heirs, executors or administrators, or assigns, shall have paid aiid satisfied all the legacies and bequeathments therein mentioned; and the receipts from the legatees or their heirs as is therein named or mentioned for the payment of all said legacies and bequeathments, shall be a sufficient release of the aforesaid lien to my said executors or to their heirs, executors, administrators or assigns. In testimony whereof, I have hereunto set my hand and seal, this 6th day of January 1821.”</p> <p>The court below (Hepburn, president) directed a judgment for the defendants.</p>

This was an action of debt by Isaac Hollenbaugh and others, heirs of John Hollenbaugh, deceased, against John Morrison, on a bond, dated the 3d of May 1834, payable the 1st of April 1S35, for 266 dollars and 67 cents. The defence was, that the bond was given in part consideration of a tract of land, which the plaintiffs covenanted to convey to the defendants in fee simple clear of incumbrances.

George Mark against John J. Mark and Harriet Mark and E. L. Bendedict, and William Culbertson, executors of Christopher Mark, deceased, and testamentary guardians of John J. Mark. Action of partition.

John Horstick against Christian Henry, surviving administrator of George Henry, deceased. This case was brought into the court of common pleas by appeal from the judgment of a justice of the peace, and the following case was stated as a special verdict:— George Henry died intestate on the 28th of July, 1830, seised of a plantation and tract of land, situate in Derry township, Dauphin county.

<p>WRIT of error to the court of common pleas of Dauphin county, to remove their record in a certain proceeding against David Hummel and John Bishoff, commissioners of Dauphin county, for a contempt, under the following circumstances:—</p> <p>At August sessions, 1839, of the court of quarter sessions of Dauphin county, the court sustained a challenge to the array of grand and petit jurors, in consequence of a failure by the sheriff and commissioners of the county to make the selection of jurors for the service of the year 1839, in the manner directed by law. In noticing the irregularities which characterized the selection, the court, in giving their opinion on that occasion, observed: “It appears to the court in the present case, that the following irregularities occurred in making the selection of jurors for the service of the year 1839.</p> <p>“ 1. The act of assembly requires that the sheriff arid commismissioners, under the oath which it prescribes, shall every year select from the taxable inhabitants a sufficient number of sober, intelligent and judicious persons to serve as jurors of the several courts of such counties for the ensuing year, and that sufficient number is to be so regulated, that at the end of the year there shall remain in each wheel as near as may be the number of names requisite to compose the panels of jurors for one court at least, and not any greater number. See sections 85 and 89.</p> <p>“Here nine hundred and fifty was agreed upon as about the requisite number. It appears that one thousand three hundred, or one thousand four hundred were selected by the sheriff and commissioners, and then some four hundred of the jurors, whose names were actually on the ballots folded up, were drawn out of the number selected, not from the wheel, but from heaps on the table, into which the names in the respective townships were thrown, where all the ballots were exposed to the view, when part were removed, and the balance only were deposited in the jury tvheel. This is not the mode of selection which the act directs. The sheriff and commissioners are to pass judgment on each person in making the selection, and not submit it to lot, and especially to a lot so objectionably conducted.”</p> <p>Pursuing the directions of the 93d section of the act of 14th April 1S34, the court, on the 26th of August 1839, made the following order: “And now, to wit, August 26th 1839, the court having quashed the array of jurors at this court, by reason of irregularity in the selection of persons, and depositing their names in the wheel, the sheriff and commissioners, are ordered by the court forthwith to take out of the wheel, from which such jurors were drawn, all the names therein deposited, and make a new selection of persons, and deposite their names in the wheel for the remainder of the current year, in the manner directed by the act of 14th of April 1834,” a copy of which order was certified by the Prothonotary, and delivered to the sheriff and commissioners of Dauphin county.</p> <p>This court, in consequence of 'the challenge to the array of jurors being sustained, could hold no court, as usual, for the trial of causes by jury, on the fourth Monday of August 1839, and to prevent the interests of suitors from suffering by delay, appointed an adjourned court for the trial of causes, to be held on the 14th of October 1S39, and a trial list was made out for such adjourned court. Upon the 10th day of September 1839, the prothonotary issued the usual venire facias, directed as follows:</p> <p>Dauphin county, ss.—The commonwealth of Pennsylvania to the sheriff and commissioners of the said county, greeting:—We command you and every of you, that in your proper persons you draw from the wheel containing the names of the persons selected according to law, to be jurors in the courts of said county, the names of thirty-six persons, to be jurors in our county court of common pleas, to be holden at Harrisburg, in and for said county, the 14th day of October next,” &c. The writ then commanded the sheriff to summon the persons so drawn, &c.</p> <p>On the 14th of October 1839, the sheriff returned the said writ of venire, with this endorsement thereto: “No selection having been made for causes which appear on the order of court, no jury could be summoned; so answers Wm. Cochran, sheriff.” And to the said order of court the said sheriff made the following return:</p> <p>“That in obedience to the within order, the sheriff and commissioners met at the commissioners office in Harrisburg, on the 23d September 1839, to select from the taxable inhabitants of Dauphin county a jury to put in the wheel, agreeably to within order. They first proceeded to empty the wheel of its contents. The undersigned proposed to destroy the old tickets. Mr. Hummel, one of the commissioners, objected, and they were placed into a box and left in the commissioners’ office.</p> <p>“ They then proceeded to fix on the number of jurors wanted for the time specified in the within order. Taxables in the county, six thousand two hundred and sixty-two; seven to every one hundred taxables, amounting to four hundred and forty-two, the number required by law. The undersigned moved to proceed to the selection of four hundred and forty-two jurors, for the purpose of filling the wheel. Mr Hummel, one of the commissioners, agreed to select, but wished to select a greater number than was wanted, and then draw out of that number, when in the wheel, tickets enough, until reduced to the proper number. The undersigned and Mr Whitley, one of the commissioners, objected as not being in accordance with the provisions of the act of assembly. Adjourned. ’</p> <p>’ “ Met again at half-past two.—Messrs Hummel and Bishoff, two of the commissioners,, adhered to their previous determination.The undersigned and'Mr Whitley still objecting, no selection was made. Adjourned.</p> <p>“ September 24th 1S39, met agreeably to adjournment at nine o’clock.—The undersigned moved to proceed to the selection of j urors. Agreed to. Bishoff and Hummel, two of the commissioners, - refused to select, unless in the old way; that is, to select double the number required, and then draw from the wheel until reduced to the necessary number; the undersigned and Mr Whitley dissenting. Hummel, proceeded to select, and Bishoff did the same. The undersigned and Whitley proceeded to select one half of the jurors wanted. Adjourned.</p> <p>“ Met again at three o’clock; all present.—The undersigned and commissioner Whitley, having selected from the duplicates the one half of the jurors wanted, proceeded to write the tickets to be put in the wheel. After writing for some time,.the undersigned observed to Hummel and Bishoff that they should be preparing their tickets. Mr Hummel replied that he had not finished his ^election, having been engaged in looking over the duplicates. The undersigned repeated his request to Hummel and Bishoff to proceed with writing the tickets. Mr Hummel replied that he would not select in any other than the old way, as it had been done before. The undersigned then moved to proceed to the selection of jurors according to the act of assembly; that is, select a sufficient number of sober, intelligent and judicious persons to serve as jurors. The vote being taken, the undersigned and commissioner Whitley voted in the affirmative; and Messrs Hummel and Bishoff, two of the commissioners, voted in the negative. Mr Hummel then moved to proceed to select from the list of taxables all that were thought fit for jurors, write them on tickets, put them in the wheel, draw out the superfluous number, and adopt those remaining in the wheel as jurors. The vote being taken, Messrs Hummel and Bishoff voted in the affirmative; the undersigned and Mr Whitley in the negative. Messrs Hummel and Bishoff then left the room, and for want of a quorum the undersigned and Mr Whitley were compelled to retire without effecting a selection.”</p> <p>Upon these returns being made to the court, the sheriff was called into court and sworn to their truth, and it was ordered by the court, that the said'John Bishoff and David Hummel, two of the commissioners of the said county of Dauphin, do show cause before this court, on the third Monday of November, then next, at ten o’clock, a. m., why an attachment should not issue against them for contempt of this court, in neglecting and refusing to obey the said order and process of this court.</p> <p>On the third Monday of November 1839, the said rule was returned to the court, with proof of the service endorsed thereon, as having been mdde upon David Hummel, upon the 15th day of October, and upon John Bishoff, upon the 16th day of October, last past, and the case was held under advisement until the next day, to wit: the -19th day of November 1839, when the respondents appeared, and by their counsel William B. Reed and Thaddeus Stevens, Esquires, read and filed the following answer to the said rule, to show cause.</p> <p>“John Bishoff and David Hummel, two of the commissioners of Dauphin county, on whom a rule of said court, made the 14th of October 1839, has been served, requiring them to show cause why’ an attachment should not issue against them for a contempt of said court, protesting earnestly against the jurisdiction and authority of the court to make any such rule on them, and denying wholly any responsibility, as officers of the court or otherwise, in the mode now claimed, for answer thereto represent the facts as they occurred in the commissioners’ office of said county, as contained in the minutes kept by their clerk hereunto appended, and to be taken as part of this their answer.</p> <p>“ The said John Bishoff and David Hummel entirely disclaim the-commission of any act of contempt to the court in the premises, having been anxious throughout to facilitate the business of the county, for the transaction of which they are agents duly authorized to act in common with the court and its officers. They deny ever having disobeyed the order of the court made on the 26th of August 1839; but on the contrary, assert that they strictly and literally obeyed it, so far as they were enabled to do so. That in pursuance of said order, the then sheriff, William Cochran, and commissioners Michael Whitley and the undersigned met, and without unnecessary delay, took out all the names deposited in the wheel from which jurors had been drawn, as directed by said order.</p> <p>“ That your respondents were desirous of complying fully with the said order, by making a new selection in the manner directed by the act of the 14th of April 1834, which requires them, in the words of the oath they had taken, 4 to. use their utmost endeavours and diligence in making an impartial selection of competent persons for jurors, and not to suffer partiality, favour, affection, hatred, malice or ill-will to influence them.’-</p> <p>“That, notwithstanding this oath, taken as well by William Cochran and Michael Whitley as by the undersigned, the said William Cochran, on two different occasions during the session of the board, made a proposition in the following words:</p> <p>“ ‘ I propose that ive select from the duplicates of each township only such a number of names of persons for jurors as will, according to its ratio of taxable inhabitants, be sufficient for the balance of the year 1839: that Messrs Bishoff and Hummel select the one half of their party, and that Mr Whitley and myself select the other half of our party</p> <p>“ And refused to select a jury in any other way. Your respondents then believed, and still believe, that such a mode would be unjust and contrary to law; having yet to learn that political bias was part of the qualification of a juror, or that in preparing a panel any distinction could be legally made between individuals of one party or another. In consequence of Mr Whitley uniting in opinion with William Cochran, and the undersigned being unable to agree to it, no new selection of jurors was made, as they submit, without fault on their part.</p> <p>“ The undersigned do not deny that they preferred the mode heretofore uniformly practised in this county by sheriffs and commissioners of all parties, including Michael Whitley and William Cochran, in selecting jurors. It is, in their opinion, the only fail-mode. Nor do they find in the order of the court, under which alone they were called on to act, any thing to prevent their adopting it. It was not adopted in this instance, because Mr Whitley and William Cochran refused to agree to. any other mode than the one they had suggested.</p> <p>“ Under no circumstances, therefore, is the neglect or refusal to make a new selection imputable to. them.”</p> <p>This answer was verified by the oaths of the respondents, and accompanied by a journal or minute of their proceedings, kept by Henry Peffer, who was the clerk of the commissioners on that occasion.</p> <p>Mr Johnson, the attorney-gerieral, appeared in support of the rule, and called and examined William Cochran, Esq., the late sheriff, and Colonel Michael Whitley, the late commissioner. On the other hand, Messrs Reed and Stephens, on the part of the respondents, called and examined Mr Henry Peffer, whose testimony varies essentially from that of the other two witnesses.</p> <p>After hearing the testimony, the matter was argued by the res.pective counsel. For the commonwealth it was urged, first, that the respondents, as officers of the court, were bound to obey its orders and process, are answerable to the summary process of attachment for contempt; and 'secondly, that if so, the respondents have been guilty of an actual contempt by a pertinacious refusal to obey the order and process in the present case.</p> <p>Both these propositions were controverted on the part of the respondents, who contended,</p> <p>1. That the court had no power to issue the attachment against .them for want of jurisdiction. That if they have offended, they are only answerable to an indictment; and,</p> <p>2. That if the court had power, this is not a case for its exercise, as the respondents have not been guilty of any offence.</p> <p>Porter, president, delivered the following opinion:</p> <p>“ By the common law of England, which forms a part of the law of Pennsylvania, so far as the same is applicable to our situation, and is compatible with our institutions, and which in regard to the doctrine of contempts of court remained the law of Pennsylvania until it was altered by our act of assembly of the 3d of April 1809, 5 Smith's Laios, 55, contempts of court were punishable by the summary process of attachment, and they embraced as well constructive contempts, such as were committed out of court by publications in newspapers, and otherwise scandalizing the court itself, abusing parties who are concerned in causes there, and prejudicing mankind against persons before a cause is heard, as also, the disobedience of the process and orders of the court by parties, jurors, witnesses, officers, or others from whom the law required obedience to 'the orders, decrees, judgment, or processes1 of the court. This summary power in the courts was as old as the law itself, and when prudently and properly exercised, did injury to no one, and was exercised as well by the courts of England as of this country, up to the year 1809.</p> <p>: “ The supreme court of Pennsylvania exercised the power thus to punish constructive contempts by improper publications before the revolution, when Kensey, C. J. presided in that court.</p> <p>“Again, in the year 17S8, in the case of The Commonwealth v. Oswald, when M’Kean, C. J. presided; and again, in the case of The Commonwealth v. Passmore, in 1802, when Shippen, C. J. presided.</p> <p>“ The decisions in the cases of Oswald and Passmore created no little sensation in the public mind. The publication in the former case referred directly to the proceedings in a suit depending between a/Mr Brown and the respondent, and reflected upon the character and conduct of the judges of the supreme court, and was punished by that court as a contempt, by subjecting the respondent to a fine of 10 pounds, and an imprisonment for thirty days. A complaint was preferred by the respondent to the legislature against the judges, asking for their impeachment for this sentence as an act of arbitrary power. Upon a full hearing, and an able argument of the question, the house of assembly, by a vote of thirty-four to twenty-three, came to the following decision:</p> <p>“ ‘Resolved, That this house having, in committee of the whole, gone into a full examination of the charges exhibited by Eleazer Oswald of arbitrary and oppressive proceedings in the justices of the supreme court against the said Eleazer Oswald, are of opinion that the charges are unsupported by the testimony adduced, and consequently that there is no just cause for impeaching the said justices. (See a very interesting report of the proceedings in 1 Dali. 350—360.)</p> <p>“In Passmore’s case, the publication complained of contained no reflection upon the court, but was a libellous charge againt the defendants, in an action brought by Passmore in the supreme court, charging them with having sworn to what was not true in an affidavit, &c. The publication did not in terms refer to any suit depending, but the affidavit in question was one verifying exceptions to a report of referees in that action. The court proceeded against him summarily by attachment for contempt, and fined him 50 dollars, and ordered him to be imprisoned for thirty days. Mr Passmore complained to the legislature against C. J. Shippen and justices Yeates and Smith, for this proceeding against him, which resulted in an impeachment preferred by the house of representatives against these judges on the 23d of March 1804. They were tried before the senate, in January 1805, and on the 26th of that month acquitted by a vote of thirteen senators pronouncing them guilty, ana eleven pronouncing them not guilty, the constitution requiring two-thirds of the members present to convict. The house of representatives averred, in the articles of impeachment, that ‘ the sentence of fine and imprisonment, under all the circumstances of the case, was arbitrary and unconstitutional, and a high misdemeanor,’ &c.</p> <p>“ 1. Because the publication did not reflect on the judges in their judicial capacity nor personal character.</p> <p>“ 2. Because there was no direct allusion, in the paper called a libel, to any cause depending before the court.</p> <p>“ 3. Because it appears from the record that the said Thomas Passmore was warranted in the conclusion that the suit between him and Pettit and Bayard was then ended, judgment having been entered and execution issued, &c.</p> <p>“ 4. Because it appears from the evidence that the court were satisfied with the answers of Thomas Passmore, to the interrogatories, so far as respected the alleged contempt against themselves.</p> <p>“ 5. Because it appears that the punishment was inflicted not because he had committed a contempt of court, but because he would not apologise or make atonement to Mr Andrew Bayard, as the court had expected. This case will be found reported, so far as the proceedings in the supreme court are concerned, in 3 Yeates 438, and as to the impeachment, in the report of the trial of the judges, published by W. Hamilton, Lancaster, 1805, in the appendix to which, will be found all the authorities cited on the trial.</p> <p>“ Public attention was thus called to the subject of contempts of court, and the mode of punishing them, and after several ineffectual attempts to have a legislative enactment on the subject, during the administration of the late Governor M’Kean, finally, after Governor Snyder was elected, on the 3d of April 1809, a law was enacted providing that‘the powers of the judges of the several courts of this commonwealth to issue attachments and inflict summary punishments for contempts of court, shall be restricted in the following cases, that is to say: To the official misconduct of the officers of such courts respectively—to the negligence or disobedience of officers, parties, jurors or witnesses against the lawful process of the court, to the misbehaviour of any person in the presence of the court obstructing the administration of justice.’</p> <p>“ The second section provided ‘ that publications out of court respecting the conduct of the judges, officers of the court, jurors, witnesses, parties, or any of them, if in and concerning any cause pending before any court of this commonwealth, shall not be construed a contempt of the said court, so as to render the author, printer, publisher, or either of them, liable to attachment and summary punishment for the same,’ &c., but authorises a proceeding by indictment for the same, and gives the party aggrieved his action at law to recover damages for the injury sustained.</p> <p>“ The third section provided that ‘ the punishment of imprisonment, in the first instance, shall extend only to such contempts as are committed in open court, and all other contempts shall be punished by fine only: Provided, that the sheriff, ór other proper officer, may take into custody, confine or commit to jail, any person fined for a contempt until such fine is discharged or paid, but if he shall be unable to pay such fine, such person may be committed to prison by the court for any time not exceeding three months.’</p> <p>“The fourth section provided that, notwithstanding any thing contained in that act, the courts shall have power to make rules upon any sheriff or coroner for the return of any writ, for the payment of any money received on any execution or process, for the production of the body.after a return of cepi corpus to an execution, or in default thereof for the payment of the debt and costs, and to compel obedience to said rules by attachment, and gave the courts the same power against'former sheriffs and coroners, where •the complaint was made within one year after the termination of their offices.</p> <p>“ The act which was limited in its operation to three years after its passage, was made perpetual by the act of the 31st of March 1812. The fourth section was supplied and repealed by the act of the 18th of February 1822, 7 Pamph. Laws 496, which re-enacted the said fourth section almost in terms, but authorised the complaints to be preferred within two years after the expiration of the offices of sheriffs and coroners. These statutory provisions on the subject of contempts of court continued in force until the 16th of June 1836, 'when the bill reported by the commissioners appointed to revise the civil code, entitled “an act relative to the jurisdiction and power of the courts,” was passed; Purd. 223; the 23d, 24th, 25th, 26th, 27th and 28th sections of which act are in the following words:</p> <p>“ ‘ Sec. 23. The powers of the several courts of this commonwealth ‘to issue attachments and to inflict summary punishments for con-tempts of courts, shall be restricted to the following cases, to wit:</p> <p>“ ‘ I. To the official misconduct of the officers of such courts respec- ' lively.</p> <p>“‘II. To disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.</p> <p>“‘ III. To the misbehaviour of any person in the presence of the court, thereby obstructing the administration of justice.</p> <p>“‘Sec. 24. The punishment of imprisonment for contempt as aforesaid, shall extend only to such contempts as shall be committed in open court, and all other contempts shall be punished by fine only.</p> <p>“‘Sec. 25. Provided that the court may order the sheriff or other proper officer to take into custody, and commit to jail, any person fined for a contempt, until such fine shall be paid or discharged; but if such person shall be unable to pay such fine, he may be committed to prison by the court for any time not exceeding three months.</p> <p>“ ‘ Sec. 26. No publication out of court respecting the conduct of the judges, officers of the court, jurors, witnesses, parties, or any of them, if in or concerning any cause depending in such court, shall be construed into-a contempt of the said court, so as to render the author, printer, publisher, or either of them, liable to attachment and summary punishment for the same.</p> <p>“ ‘ Sec. 27. If any such publication shall improperly tend to bias the minds of the public, or of the court, the officers, jurors, wit-messes, or any of them on a question depending before the court, it shall be lawful for any person who shall feel himself aggrieved thereby, to proceed against the author, printer and publisher thereof or either of them by indictment, or he may bring an action at law against them or either of them and recover such damages as a jury may think fit to award.</p> <p>“ ‘ Sec. 28. Provided that notwithstanding any thing hereinbefore contained, the several courts aforesaid shall have power to make rules on sheriffs and coroners for the return of process in their hands, and for the payment of money, the delivery of any articles of value in their possession, according to their respective duties, and also to make rules upon attorneys for the payment of money and the delivery of deeds and other papers in their hands belonging to their clients, and in every such case to enforce obedience to such rules by attachment: and the courts shall have the same power against former sheriffs and coroners if application be made for the purpose within two years after the termination of their offices respectively.’ It will be observed, that the object and effect of this last section is to subject the officers therein named, in the cases there stated to the operation of the summary proceeding, in its greatest severity and to except them out of the prohibition to imprison mentioned in the twenty-fourth section.</p> <p>“ These five sections it will be seen are compiled without any alteration in substance from the act of 1809, as amended by the act of 1S22.</p> <p>“ These various legislative enactments made no alteration in the definition of the offence of contempt of court. The alterations relate exclusively to the mode of punishment, and constructive con-tempts are now punishable by fine and imprisonment after conviction on indictment therefor, instead of the summary process by attachment as at common law. The alteration is a judicious one, and has met the approbation of the public. It does away a power which, if arbitrarily exercised was calculated to infringe the liberty of the citizen, and unduly restrict the liberty of the press. A power which it is now generally conceded was oppressively exercised in Passmore’s case, and hence taken away by the legislature from our courts. The offence, however, of contempt of court by publications improperly tending to bias the minds of the public or of the court, the officers, jurors or witnesses on a question depending before the court, is still of as deep a dye as ever, and the party on conviction thereof before a court and jury deserves, and should receive a punishment proportional to his guilt and malignity. But the case before the court is not one of a constructive contempt. It is for neglecting and refusing to obey the order and process of the court.</p> <p>“The act of 14th of April 1834, entitled an act relative to the organisation of courts of justice, from section 79 to section 162, inclusive, Purdon 563 to 573, contains the provisions now in force, relative to selecting, drawing, summoning and returning jurors.</p> <p>“ Before the passage of the act of 20th March 1S05, the process for selecting, summoning and returning jurors, was directed to the sheriff alone, who selected the persons and summoned them. Certain duties were imposed upon him by the statutes in force in Pennsylvania as well as by the act of 1789. But in 1805, the legislature, to'guard against abuses by sheriffs, enacted a law by, which the county commissioners and sheriff were directed to make the selections conjointly, as directed by that act. Still there was no express authority given by the act, for the court to make orders upon or direct their process to the county commissioners. A precept usually issued signed by the j’udges for holding a court in pursuance of which, and often without it, the sheriff and commissioners drew jurors from the wheel. But the selection of the jury for the service of the year, was not made under any order of court, and the venire facias for summoning the jurors, drawn in pursuance of the precept, was directed to the sheriff alone.</p> <p>“In 1834, the'system was revised by the commissioners before mentioned, and the bill reported by them, with a few slight and almost immaterial alterations became a law on the 14th of April 1834. The 85th to the 90th sections of that act may be referred to as directing the time and place and manner of making the general selections of jurors for each year, as well as the manner in which that duty shall be performed and the jury wheel secured. Sections 91 to 95 inclusive, give the power to the court undér y ario us circumstances to malee orders in regard to selecting jurors and filling the jury wheel. Section 93 contains the provision under which the order of court of the 26th of August last was made:—“When the array of jurors returned atany court shall be quashed by reason of any fault or irregularity in the selection of persons, or depositing their names in the wheel, as aforesaid, the sheriff and commissioners of the respective counties shall' upon the order of such court, forthwith take out of the wheel, from which such jurors were drawn, all the names therein deposited and make a new selection of persons and deposite their names in the wheel for the remainder of the current year in the manner aforesaid.”</p> <p>“ Sections 96, 97,98, 108, 109, 110, 111, 112, expressly direct that the processes or writs of venire facias for drawing, summoning and returning the jurors required in the several courts, shall be directed to the sheriff and commissioners of the proper county, and give the forms of the process to be used, thus making a different provision from any theretofore in force, and in their report submitted with the bill to the legislature, the commissioners assign the following as their reasons for making the alterations in these particulars:—£ We propose a form for the writ of venire. We have endeavored to adopt it to the substance of the acts of assembly. The writ should be directed to all persons whose agency is required in its execution. If the commissioners should refuse to aid in the drawing of the panel, the sheriff could not lawfully “cause a jury to come,” &c., according to the'commands of the writ in the ancient form. The effect of directing it to the commissioners as well as the sheriff, will be to make them answerable to the court for a contempt of the process in like manner as the sheriff would be.’ See Parke and Johnson’s Digest S00, note to sect. 112.</p> <p>“ The question is thus conclusively settled that in relation to the selection of jurors as directed by this order of court, as well as in drawing them from the wheel, the commissioners are officers of this court, and of consequence are bound to obey the order, direction and process of this court in the premises, on pain of being summarily punishable by attachment for contempt, "for official misconduct or for disobedience or neglect of or to the lawful process of the court.’</p> <p>“ The remaining question then remains to be considered. Have the respondents been guilty of a contempt of court by official misconduct or by disobeying or neglecting the lawful process of the court.</p> <p>“ In many matters there is a discrepancy between the testimony of sheriff Cochran and Col. Whitley, the witnesses examined on the part of the commonwealth, and Mr. Peffer, the witness examined on the part of the respondents. Nay, in several important particulars, there are flat contradictions. Adopting the ordinary rule, supposing all there to stand equally well in point of respectability, the testimony of the two witnesses ought to prevail over that of one, and the court feel themselves, on this ground, fully justified in giving credence to the representation of facts made by those two gentlemen in preference to that of Mr Peffer. But in the intrinsic character of their evidence, this view of the testimony is greatly strengthened. The lists of persons which sheriff Cochran was making out to submit for consideration as jurors, contain the names of men of all political parties, and furnish a strong negative to the allegation of Mr Peffer, that the sheriff and Col. Whitley proposed selecting alone from their own party, and the entire partisan character of the minutes made by Mr Peffer show how deeply -his feelings were enlisted in the business, independent of the positive declarations of the other two witnesses that many matters contained therein are positively untrue. We cannot therefore, rely on any thing contained in those minutes, which has not other evidence to support it.</p> <p>“It appears to the court then, from the evidence before us, that sheriff Cochran, on the 23d and 24th of Septémber last, at the meeting of the- sheriff and commissioners, as before stated, proposed that the officers there assembled should select from the list of taxables in the several townships, the names of four hundred and forty-two persons, which it was agreed upon all hands was the number to be selected for the residue of the year, and deposit the names in the wheel agreeably to the order of the court. That Col. Whitley concurred in this proposition, and that Mr Hummel and Mr Bishoff refused to do so.</p> <p>“It also appears that Mr Hummel proposed in substance to select from such lists of taxables the names of all persons whom they thought competent for jurors in the several townships, to fix the rate to which each township would be entitled of the number two hundred and twenty-four required, and to put the names selected into the wheel and draw out by lottery the surplus above the ratio, to which such township would be entitled and to constitute the number required to be fairly deposited in the wheel of the remainders thus left.</p> <p>“That Mr Bishoff concurred with him in this proposition, and that they declared they would agree to select in this manner and no other. That after voting against the proposition submitted by sheriff Cochran, and thus defeating it, they had the vote taken on this proposition of Mr Hummel’s, which was defeated by sheriff Cochran and Col. Whitley voting against it, and that then, without any adjournment or motion to that effect, they broke up the conference by going away, and thus prevented any selection from being made for the residue of the year under the order of court, as well as any drawing of a jury under the venire for the adjourned court on the 14th of October.</p> <p>“The proposition submitted by Sheriff Cochran, as sworn to by himself and Col. Whitley, was the proper and legal course of proceeding; it was in accordance with the decision of this court pronounced on the 26th of August last, in the presence of the sheriff and commissioners, and filed of record. Whilst the proposition submitted by Mr Hummel was decidedly contrary to law, and so pronounced by this court in the same opinion. Yet they pertinaciously adhered to this opposition to law and the express decision of the court, and the public have reaped the fruits of this perverseness in the loss by the suitors in the causes on the trial list, at the adjourned court, of the opportunity of trying their causes, and in the quashing the array of grand and petit jurors at the present sessions and term. For after the said adjourned court,- and after the rule to show cause why the attachment should not issue against them, Mr Hummel and Mr Bishoff, with the new commissioner Mr Orth, elected in the place of Col. Whitley, overruled the sheriff and adopting the plan proposed by Mr Hummel as before stated, proceeded to select the names of persons, and deposited them in the wheel, in a manner not warranted by law. The consequence Avas, that on the first day of the present session, twenty-two grand jurors, and the persons attending on a panel of forty-eight petit jurors, were discharged and" sent home, and the jury summoned for the next week, thirty-six in number, have been notified not to attend. The county has been- subjected to the expense of summoning all these jurors, and of paying such as have attended or may attend, the criminal business of the county has been delayed, persons accused of crime have been discharged, and the suitors in causes on the trial list in the common' pleas have again been deprived of the chance of trying their causes.</p> <p>“The court, without going into any further examination of the evidence in regard to the conversations which passed during the two days the sheriff and commissioners were together, are satisfied that Mr Hummel and Mr Bishoff have in the premises, been guilty of official misconduct, and have neglected, as well as disobeyed., the lawful process of this court, and"that they are answerable for the contempt of which they have been guilty, in a summary manner, by attachment.</p> <p>“ This is, perhaps, the first instance in which, the question has arisen under the act. The court have taken time to advise upon the whole subject, and examine it in all its bearings and aspects, and having established the right aiid .jurisdiction of the court, as well as the responsibility of the respondents, make the rule absolute, and award the attachment against them, leaving the imposition of the punishment on their being brought before the court, in some measure to be regulated by the temper and disposition which shall be evinced by the respondents to submit to the laws.”</p> <p>On the 3d of December 1839, the respondents appeared, and the court ordered the said David Hummel and John Bishoff, severally, to pay a fine of twenty-five dollars to the commonwealth, for the use of the county of Dauphin, and stand committed in case of nonpayment, according to law.</p> <p>Errors assigned:</p> <p>1. The court erred in entering the rule to show cause why an attachment should not issue against commissioners Bishoff and Hummel, because the court nad-no jurisdiction or authority to make any such rule on them; the remedy for any neglect of, or refusal to perform, any duty enjoined upon them by law, being by indictment in the court of quarter sessions of the proper county.</p> <p>2. The court erred in making the rule absolute and in awarding the attachment, because the facts which were the foundation of the contempt suggested, were not established by the testimony of disinterested witnesses, the only witnesses called to establish them being William Cochran, sheriff, and Michael Whitley, a commissioner, who, by the answer of the commissioners, verified by their affidavit and the minutes of the board of commissioners, verified by the oath of the clerk of the commissioners appended thereto, and made part of their answer, were charged as being the sole cause why the order of court was not. fully complied with.</p> <p>• 3. The court erred in making the rule absolute and in awarding the attachment, because the commissioners, by their answer to the rule under oath, declared that they “ were desirous of complying fully with the said order, (of court,) by making a new selection (of jurors) in the manner directed by the act of the 14th of April 1834,” &c., and ‘‘ entirely disclaim the commission of any act of contempt to the court in the premises,” thereby purging themselves of any intentional disobedience of the order of the court, or of any contempt whatsoever in the premises.</p> <p>4. The court erred in adjudging the commissioners guilty of a contempt, and imposing a fine upon them, because after the rule was made absolute and the attachment awarded, the commissioners appeared in court, (no process having issued, being merely sent for by the court,) and without interrogatories having been filed against them, or any opportunity afforded them of purging themselves of the alleged contempt, the court decreed that they had been guilty of a contempt of court, and ordered them severally to pay a fine of twenty-five dollars to the commonwealth, for the use of the county of Dauphin, and to stand committed in case of non-payment according to law.</p> <p>' 5. The court erred in adjudging the commissioners guilty of a contempt of court, and in inflicting the fine upon them before filing interrogatories, and ascertaining by'their answers to them, that if, in their action with reference to the selection of jurors, they erred or acted illegally, such action was wilful and manifest to themselves, or whether it arose from a conscientious belief that in thus acting they were fairly and legally discharging the duties enjoined upon them by the act of assembly and the oaths they had taken.</p>

A. J. Jones against John Snevely. This was an action of debt upon the guaranty of a note in which the following statement was filed: “A. J. Jones brings this suit to recover a sum of money due him by John Snevely, on a guaranty of a promissory note under seal transferred to him by John Snevely.

This was an issue directed to try whether the Farmers and Mechanics’ Bank of the city of Philadelphia, was entitled to the proceeds of the sale of the personal property of Mentor Perdue, under the following circumstances : George Ege being the owner of “ Mount Holly Iron Works,” leased the same on the 25th of February 1S37, to Mentor Perdue for five years from the 1st of April 1837, at the annual rent of 6000 dollars, payable in advance each year.

Abraham Miller’s administrator? against John Heck, constable. This was a scire facias against the defendant for neglect of duty as constable, in not returning an execution issued at the suit of the plaintiff, and came into the court of common pleas by appeal from the judgment of a justice of the peace.

Eli K. Price, administrator de bonis non cum testamento annexo of the Hon. William Tilghman, deceased, against George Fisher, Esq. This was an action of debt on two bonds dated the 26th May 1814, conditioned for the payment of 670 dollars 67 cents on the 1st of April 1S16, and the same sum on the 1st of April 1817, and the action was brought on the 24th of June 1837.

Eichelberger and others against Charles Barnitz,Frederick Wentz, and Adam Carle. This was an action of ejectment, in which the following special verdict was found: The plaintiffs named are the legal heirs and representatives of Mary and Susannah Carle, the daughters of Michael Carle, late of the county of Adams, deceased, and named in his will. The said Michael was seised of the said lands mentioned in the ejectment in his lifetime by an indisputable title.

John Moore against George Croft. This was a question of substitution, arising out of the following facts: On the 14th of May 1830, John D. Mahan executed a promissory note to George Croft, Samuel Galbraith and John Moore, for the payment of 900 dollars in four months, whp endorsed it to the Harrisburg Bank, by whom it was discounted. A suit was brought upon this note against them, and judgment obtained in 1831.

This was an action of ejectment by Peter Hocker against William Hersheaur, for an acre and a half of land. Every thing material to the point decided is stated in the opinion of the court.

The President, Managers and Company of the Cumberland Valley Railroad Company against Jacob Baab.

William Espy against William Allison. Assumpsit for money had and received. On the 6th of May 1831, John Johnson gave his mortgage to Philip Wolfersberger, to secure three bonds, one bond for 650 dollars, payable presently; one for 500 dollars, payable the 1st of May 1832, and one for 500 dollars, payable the 1st of May 1833.

THIS was an application by Elizabeth Hall for a rule- to show cause why a mandamus should not issue to the canal commissioners of Pennsylvania requiring them to pay the sum of two thousand five hundred dollars to the petitioner, being the amount of damages awarded to her by the board of appraisers for injury done to her lands by reason of the construction of the canal.

The following facts were agreed upon. John Harper administrator de bonis non, with the will annexed of William Huston, deceased. September 4, 1839, his account being presented and passed by the orphans’ court, there was found a balance in his hands of 11,878 dollars and 99 cents, subject to distribution according to the will of the said William Huston. A rule was granted to show cause why the same should not be distributed.

The Commonwealth, for the use of Miche Fisher and Sarah his wife and others, heirs at law of John Garber, deceased, against John Y. Cunius, administrator of John Strohecker. This-was a scire facias brought by the plaintiffs on a judgment obtained on the administration bond in the estate of John Garber, deceased, given by David Garber and John Garber, as administrators, and John Strohecker and John Birkenbine, as sureties, in the sum of 10,000 pounds.

Samuel M’Cormick against Nathan Harvey. Ejectment by the plaintiff in error who was plaintiff below, to April term 1837, brought to recover from Nathan Harvey, the defendant, a lot of land described in the writ as situate in Mill Hall, Centre county, called the Mill Hall property, on the west side of the turnpike road, adjoining land of Samuel Harvey, on the north and south by said Samuel Harvey and M’Cormick, and west by Fishing creek, with a brick house and other buildings…

„ Jacob Marshall, administrator de bonis non of William Sharman, deceased, against, Daniel Esterby, administrator of Daniel Drenkle, who was administrator de bonis non of John Garber, deceased.

Peter Butz and John Butz, for the use of Joseph Delong and Susanna his wife, late Susanna Butz, against Jacob Seibert. This was an action of assumpsit, to which the defendant pleaded non assumpsit and a former recovery.

<p>ERROR to the special- court of common pleas of Clearfield county.</p> <p>John Weld, administrator de bonis non, with the will annexed, of John Wigley, deceased, against Wilson M’Clure and Thomas M’Clure, administrators of Thomas M’Clure, deceased. This was an action on the case to recover from the defendant’s intestate the balance which remained in his hands as the executor of John Wigley.</p> <p>The plaintiff gave in evidence the petition of Thomas M’Clure, praying to be permitted to resign his executorship of the estate of John Wigley, and the order of the court accepting his resignation.</p> <p>On the same day auditors were appointed to settle his account, who reported a balance in his hands of 628 dollars 11 cents. Letters of administration subsequently issued to the plaintiff, who brought this action.</p> <p>After the plaintiff had given this evidence, the court below instructed the jury that the orphans’ court alone had jurisdiction of the cause of action, and this in the common pleas could not be maintained, and instructed the jury to find for the defendants.</p>

<p>ERROR to the common pleas of Schuylkill county.</p> <p>This was an action of ejectment by Thomas S. Ridgway against Jacob W. Seitzinger and others, to recover the possession of a tract of land containing ninety-nine acres and eighty perches, which the plaintiff had purchased, by articles of agreement from Conrad Keim, and which the said Keim subsequently sold to the defendants. This action was brought to enforce a specific execution of the following contract between Conrad Keim and Thomas S. Ridgway:</p> <p>“ For a valuable consideration, which I acknowledge to have received, I do hereby bind myself, my heirs and assigns, to grant and convey to Thomas S. Ridgway, his heirs and assigns, in a good and sufficient title, a certain tract or piece of land whereon George Kutz now resides, containing, agreeably to the patent, ninety-nine acres eighty perches, more or less, together with the saw-mill, dwelling, and all other appurtenances thereunto belonging, for and in consideration of 15 dollars to me in hand paid for each and every acre, at the delivery of the title, which is to be done in sixty days from this date; and in case Thomas S. Ridgway is not ready with the money at that time, then in that case the said Ridgway doth forfeit and bind himself to pay to Conrad Keim 100 dollars. In witness whereof, the said parties have hereunto set their hands and seals the 18th day of August 1828.”</p> <p>It appeared in evidence that in 1829 the plaintiff had brought an ejectment upon this agreement, to enforce a specific execution of it, and the cause was referred to arbitrators, who reported in favour of the defendant, from which there was no appeal; and in 1830 he brought a new action for the same land, for the same purpose, in which a verdict and judgment was rendered against him.</p> <p>On the trial of this cause the defendants below took the ground that, inasmuch as the action was an equitable one, to enforce performance of an agreement for the purchase and sale of the land, one verdict and judgment was conclusive of the' right, and therefore the plaintiff was now barred from recovering: but the court below ruled this point against the defendants, and a verdict and judgment were given against them. This point was twice argued in this court, and was the only one in the cause upon which an opinion was delivered.</p>

<p>ERROR to the common pleas of Bedford county.</p> <p>William A. M’Lanahan & Co. against James Reeside. Amicable action and case stated to try whether the plaintiffs and others are entitled to the proceeds of the sale of the real estate of William Lewis, to the amount of their judgments respectively, in preference to James Reeside, who claims to hold a lien, in the nature of a mortgage, against said real estate, upon the following statement of facts, to be considered in the nature of a special verdict.</p> <p>On the 9th of February 1835, the following agreement was entered into between the said James Reeside and the said William Lewis.</p> <p>“ Articles of agreement entered into this 9th day.of February 1835, by and between James Reeside,'of the city of Philadelphia, and state of Pennsylvania, of the one part, and William Lewis, of the borough of Bedford, and state aforesaid, of the other part, witnesseth: that the said James Reeside hereby agrees to sell and convey, and by these presents doth hereby sell and convey unto the said William Lewis, all the herein described messuages, tenements, tracts and parcels of land, with all and singular the appurtenances thereunto belonging, viz; one tract of land lying and being in the township of Cumberland Valley, county and state aforesaid, containing ninety-two acres one hundred and two perches, being the same tract or parcel of land that was conveyed by deed on the 18th of November 1831, by Leonard May and John May, executors of John May, deceased, to James Reeside, grantor above named. Also, all that certain lot or parcel of land which was conveyed by John Elder and Margaret his wife to the aforesaid James Reeside, lying and being in the township, county, and state aforesaid, containing one hundred and fifty-three acres six.ty-five perches. And the said James Reeside further covenants to and with the said William Lewis, that he, the said James Reeside, will, at or before the en-sealing and delivery of these presents, make, execute, and deliver unto the said William Lewis, a full and perfect deed of general warranty for the premises above described, in fee simple, to him the said William Lewis, and to his heirs and assigns forever. Possession of the above described premises to be given by the said James to the said William immediately upon the execution of this instrument. In consideration of which, the said William Lewis covenants to and with the said James Reeside, to pay unto the said James the full and just sum of 3463 dollars 2.5 cents, immediately upon the execution of this agreement. In testimony whereof the said James and William have hereunto set their hands and seals, the day and year aforesaid.”</p> <p>“Received of William Lewis, the day and year aforesaid, 3463 dollars 25 cents, in full of the consideration-money above mentioned in manner following, viz:”</p> <p>Here follows a number of notes or obligations, given by different individuals to the said William Lewis,, the amount of which are set down in figures, and added up, making altogether the sum of 3463 dollars 25 cents, the consideration-money mentioned in the above agreement, at the bottom of which is written, “ full consideration, 3463 dollars 25 cents.”</p> <p>Then follows this additional clause:</p> <p>“And it is further agreed upon by and between the said James Reeside and William Lewis, that the above described notes or writings for the payment or security of money, are to be and remain chargeable upon the foregoing described lands and tenements, and to be considered a lien, and in the nature of a mortgage upon the same, until the whole of the money to become due upon said notes or writings for the security of money as above described, shall be fully liquidated and satisfied. Witness the hands and seals of the parties, the day and year aforesaid.”</p> <p>The above instrument of writing is ackowledged by both parties.</p> <p>A general warranty deed in fee simple, for the same land, bearing the same date with the foregoing instrument of writing, but not referring to it in any manner whatever, was made by the said James Reeside to the said William Lewis, a receipt given on the said deed for the whole of the purchase-money, and possession delivered, and both were recorded on the day of their date, and both in the same book. It is admitted that there was a book in the recorder’s office specially set apart for the recording of mortgages, and called the Mortgage Book, but neither the agreement nor the deed was recorded in this book, but both in a different book, called the Deed Book, marked letter R.</p> <p>On. the 16th of August 183S, James Reeside obtained a judgment against the said William Lewis, on the docket of the court of common pleas of Bedford county, for the sum of 1356 dollars 48 cents, which still remains unsatisfied, and which is admitted to be for the balance remaining unpaid on the said notes or writings, given for the purchase-money of the said tract of land as aforesaid, at the date of the settlement between the said Lewis and Reeside.</p> <p>On the 11th of October 1836, William A. M’Lanahan & Co. obtained a judgment against the said William Lewis, on the aforesaid docket, for the sum of 443 dollars 44 cents, on which an execution issued, and the said real estate was sold by the sheriff to the said James Reeside for the sum of 3900 dollars to No. 24, January term, 1839.</p> <p>The question for the court to decide is, whether the plaintiffs in this cause are entitled to the payment of their judgment out of the moneys now in the hands of the sheriff, arising from the sale of the tracts of land abovementioned and described in the foregoing agreement and deed, in preference to James Reeside, who claims to hold a lien under the said agreement in the nature of a mortgage. Should the court be in favour of the plaintiffs, then an auditor or auditors 'to be appointed, to marshal the funds in the hands of the sheriff among the several judgment creditors, after notifying said creditors in such manner as the court shall direct. But should the court decide for the defendant, then judgment to be entered that the sheriff distribute the money in his hands amongst the lien creditors accordingly.</p> <p>The court below rendered a judgment for the plaintiff’.</p>

<p>ERROR to the.common pleas of Cumberland county.</p> <p>This was an action of replevin by John Gray against James Wilson, in which a verdict was rendered for the defendant, and the court below arrested the judgment. Upon a writ of error, the judgment of the court below was reversed, and judgment entered on the verdict for the defendant by this court. See 5 Watts 25, where the whole case is fully stated, except that part of it which gave rise to the point now raisedon this writ of error, which was taken by the plaintiff to remove the same record.</p> <p>It appeared upon the trial, that while Wilson was carrying on the busiuess, he made purchases of goods, and incurred a liability to pay for them, at Gray’s instance, and did actually pay for them of his own funds, to an amount exceeding 3000 dollars.</p> <p>The defendant requested the court to charge the jury upon several points, the answers to which were made the subject of exception.</p> <p>Fifth Point.—A factor, such as James Wilson was, as between John Gray and himself, has a lien upon the goods of his principal ■for advancements made by him, or responsibilities incurred in conducting the agency: and the goods cannot betaken from him by the principal without paying such advancements, or relieving the agent from such responsibilities.</p> <p>Charge.—“ It is a general principle of law, that a factor has a lien upon the goods of his principal for advancements made by him, or responsibilities incurred in conducting the agency; and the goods cannot be taken from him by the principal without paying such advancements, or relieving the agent from such responsibilities. So far as this principle applies, the defendant is entitled to use it in his defence. We cannot say, as requested, that James Wilson was such a factor, and had such right. Where parties make particular agreements and stipulations between themselves, such agreements and stipulations take place of general principles of law. The parties make the law in such cases for themselves. If there was nothing in the agreements and arrangements of the parties, indicating a different rule, the law of lien would apply, and would afford a defence against this suit. The plaintiff, in the nature of his action, claims the properly and the possession of it. It is plain, if he was, at the time of issuing the writ, not entitled to such possession, by reason of a lien in favour of defendant, such as is alleged in the plea of defendant pleaded, the plaintiff could not recover.”</p> <p>Sixth Point.—If the jury believe that James Wilson, at the period of dissolution between him and John Gray, claimed to retain possession of the said goods and books of account by reason of his lien upon them, or by reason of his liabilities on account of their purchase, and John Gray also claimed them, and they agreed to deposit them in a particular place, to be locked up,'and the key and books of account should be delivered to a third person, there to remain until their difficulties and accounts were settled, and that, while the goods were thus deposited, this writ of replevin was sued out, the plaintiff cannot recover.</p> <p>Charge.—“ This is substantially the fact put in issue by the first plea of the defendant, and the replication to it. It is alleged in point of fact as a defence to the suit. It is replied to, not to be true in point of fact; and upon this issue is joined. It is submitted to the jury to determine. If such facts, if true, are no bar to the action, the plaintiff might have so pleaded,- and submitted it to the court, and not to the jury. But this is not done, and we speak to the pleadings as we find them. The point is answered in the affirmative. But in point of law, too, we think.the facts, if proved to be true, would constitute a good defence. The settlement of the dispute was a good consideration for such agreement.”</p> <p>Seventh Point.—If the defendant be entitled to recover, he is entitled to have damages for the detention of the property from the execution of the writ of replevin until this time, and that the measure of damages is the interest of the value of the property replevied by the plaintiff.</p> <p>Charge.—“Where there is an unjust detention of the properly, and defendant is entitled to recover in replevin, he is entitled to recover his damages for the unjust detention by the plaintiff. But we cannot say, that under the facts in this case, that in law, the measure of damages is the interest of the value of the property replevied by the plaintiff. The amount of the damages, in case of a verdict for the defendant, is to be determined by the jury from all the evidence.”</p> <p>Verdict for the defendant, and damages assessed at 790 dollars 12 cents.</p> <p>The errors assigned were in answer to these points,</p>

This was an action of debt by Daniel N. L. Ruétter against Anthony W. Lomis, in which the plaintiff filed the following statement: “ Daniel N. L. Ruetter, the plaintiff, states that he sues to recover from Anthony W. Lomis, the defendant, the sum of 1500 dollars, for rent due to him from defendant, for the Burr Haven sawmills, on an agreement between them made, dated the 3d of June 1834, being the rent due for the term of eighteen months from and after the 1st of October…

William Henry’s executors against John Brown and Ann Brown, late Ann Steel, executors of James Steel, deceased.

George W. Heffernan, administrator of Catharine Heffernan, deceased, against Elijah Deckert and Peter Addams, administrators of John Addams, deceased.

John Goddard, Charles Bird, Joseph M. Eldridge, Benjamin Kugler, and Paul Beck, Jr.j in trust for the Dauphin and Susquehanna Coal Company, against Jonathan Wolf, George Hamer, Jacob Seiler and Philip German. This was an action of ejectment for two tracts of land in Dauphin county. The facts of the case and the various bills of exceptions are sufficiently stated in the opinion of the court.

Ebenezer P. Hughes and Jonathan Chandler against William Boyer. This was an action on the case for immoderately driving the plaintiff’s hired horses, by reason of which one of them died, in which'the plaintiffs thus charged the defendant: “ William Boyer was summoned to answer Ebenezer P. Hughes and Jonathan Chandler, trading under the firm of Hughes & Chandler, of a plea of trespass on the case.

This was an action of ejectment by Horatio Brown and James Pople against Henry M’Kinney and others for the one fortieth part of an acre of land being part of a lot in the town of Harrisburg.' The facts of the case are sufficiently stated in the opinion of the court.

John Good, Esq. against Jacob Good. This was an action of debt, founded upon two bonds and a single bill, not exceeding 1200 dollars.