Volume 9 — Watts & Sergeant's Pennsylvania Reports

<p>The State is never presumed to have parted with one of its franchises, in the absence of conclusive proof of such an intention ; hence, a license accorded by a public law to a riparian owner to erect a dam in the Susquehanna river, and conduct the water upon his land for his own private purposes, is subject to any future provision which the State may make with regard to the navigation of the river: and if the State authorize a company to construct a canal which impairs the right of such riparian owner, he is not entitled to recover damages from the company.</p>

<p>An action against the executor or administrator of a decedent, without making the heirs or devisees parties to it, does not release the real estate from the lien of the debt; but they may be brought in afterwards by a writ of scire facias upon the. judgment when obtained ; but in such case the heir or devisee may make any defence which he could have made to the original action.</p> <p>The 24th section of the Act of the 24th February 1834, which limits the lien of the debts of a decedent upon his real estate to five years, is not applicable to the estates of those who died previously to the time when that Act took effect, which was the 1st October 1834.</p> <p>Under the provisions of the Act of 24th February 1834, if suit be brought against the executor or administrator within five years after the death of the decedent, and a scire facias to bring in the heirs be issued within five years from the rendition of the judgment in the original suit, the lien of the debt upon the real estate will be preserved.</p> <p>Upon a scire facias against the administrator de horn's non with the will annexed of a decedent, with notice to the devisees of the land to appear and show cause wliy the plaintiff should not have execution against the land devised to them, it is competent for such devisees to prove that, by an order of the Orphans’ Court, the lands of the testator were sold by the administrator to an amount sufficient to pay all his debts; and if this he established, although the plaintiff may be entitled to judgment quod recuperet against the administrator, he cannot recover against the devisees of the land. It is the duty of the creditor in such case to look to the appropriation of the proceeds of the sale of a decedent’s land made by an order of the Orphans’ Court.</p>

<p>Upon a petition of the inhabitants to divide a township, the court have not power to adopt any other line of division than that prayed for in the original petition.</p>

<p>The franchises and corporate rights of a company, and the means vested in them which are necessary to the existence and maintenance of the object for which they were created, are incapable of being granted away and transferred by any act of the company itself or by any adverse process against it.</p>

Sebastian Stitzel and Jacob Asper against Leonard Kopp. This was an action of debt upon the joint and several sealed note of Peter Kopp and Leonard Kopp. The plaintiffs, as the assignees of Isaac Hull, sold at public sale a tract of land upon the following conditions: “ The condition of this present sale, held the 29th September 1843, namely, of a plantation or tract of land containing 140 acres more or less of patented land, as the property of Isaac Hull.

<p>For an injury done to the horse of a customer by the bursting of a steam-boiler at a mill, case and not trespass is the proper form of action, and it may be maintained by the owner of the horse which was at the time in the possession of another person.</p> <p>The admissions of one who is jointly sued with others are competent evidence against himself.</p> <p>One who is exercising a public trade or business which requires the use of a steam-engine, is responsible for any injury to another which is the consequence of its insufficiency.</p>

<p>Upon an appropriation of the proceeds of a sale by the sheriff of the real estate of A, a judgment against him as security of B must be paid, although it may appear that the same judgment is a lien upon the real estate of B, which is sufficient security for its payment; the remedy of the subsequent judgment creditors of A is by subrogation.</p> <p>A creditor who releases any security which he holds for the payment of his debt, thereby releases a surety pro tanto.</p> <p>A creditor haring a judgment against his debtor and his surety, which was a lien upon the real estate of the principal, agreed to release a part of the said real estate in order to make a title to one who purchased it for its full value, upon condition that the purchase money should be applied to the extinguishment of a mortgage which was a prior lien upon the whole estate: Held, that the surety was not thereby released.</p>

<p>An agreement by one of several heirs of an intestate to sell and convey all his interest in the real estate, “ except so much of said estate as shall be coming to the said E at the decease of the widow,” is to be construed to mean an agreement to sell and convey two-thirds of the interest of the vendor in his father’s estate.</p> <p>The evidence necessary to establish a sale of land by parol must be clear and positive.</p>

<p>The issuing of a writ of summons, although returned not served, is a suit brought; and would release the guarantor of a bond who had stipulated in consideration of total forbearance.</p> <p>“Further forbearance” as the consideration of a guaranty is construed to mean forbearance for a convenient or reasonable time, taking into view in its computation as one element the period which had theretofore been permitted to elapse without enforcing payment; and what is a reasonable or convenient time the court must determine.</p>

James Thompson against Jacob Magehan, surviving partner of William Richardson. This was an action of debt brought into court by appeal from the judgment of a Justice of the Peace, and the only question whieh arose is stated in the opinion of the court.

In 1812 John Ramsey made his will, which was then proved, by which he appointed two of his sons and a third person to be his executors, and devised to them his real estate, to be sold, and the proceeds to be divided among his children as therein stated.

<p>When powers are granted to several persons to transact private business, all must join in the execution of it. And the rule applies in all cases, whether the duty be ministerial or judicial.</p>

<p>If a sheriff take a bond for the amount of the purchase money of a tract of land sold upon an execution, he is not entitled to recover interest upon it from the purchaser, who was a judgment creditor of the defendant, as whose property the land was sold, and who ultimately was entitled to and received the money by a decree of the court.</p>

<p>To make a former verdict, and the testimony therein given, evidence in a subsequent trial of an ejectment, it must have been between the same parties or their privies, and in relation to the same title.</p> <p>The return of a sheriff found in the office purporting to have been made by the officer, must be taken to have been regularly made; it cannot be disproved.</p> <p>It would be a violation of the act of frauds and perjuries to permit the establishment of a trust in lands by. the proof of parol declarations, made by the purchasers at or after the sale; there being no allegation of the payment of money by the cestui que trust or fraud, whereby a resulting trust would be established.</p>

<p>The rule of the common law with regard to the admission in evidence of books of original entry is greatly relaxed: such hook of a plaintiff who is dead may be given in evidence upon proof of his handwriting.</p> <p>The demand of a plaintiff as set forth in his declaration is to be considered the sum in controversy in a question of jurisdiction which is limited by statute.</p> <p>Although a plaintiff recover an amount below the jurisdiction of the court, yet if it be reduced by evidence of set-off, the plaintiff will be entitled to his costs.</p>

<p>A contract of compromise between the reputed father and the mother of an illegitimate child, by which the former agreed to pay a stipulated sum for the lying-in expenses of the mother and for raising the child, is not founded upon such an illegal consideration as will avoid it: nor will the subsequent death of the child relieve the father from the payment of any part of the stipulated sum.</p>

William C. Reed against Richard Shaw. This was an action on the case, to recover damages for injury done to the plaintiff’s raft on the Susquehanna, by which it was wholly lost, ft appeared that the plaintiff’s raft was lashed to the shore in the Muncy dam, and the defendant’s raft, which was conducted by a skilful pilot, the owner not being with it, was coming down the river, and made an effort to land above the plaintiff’s raft but failed, in consequence of which it ran…

Swartz by the sheriff. The first lien upon the land sold was a transcript of the judgment of a Justice of the Peace. It appeared that after the transcript was filed an execution was issued by the justice, upon which the constable levied a store of goods of the defendant, but did not remove or sell them.

Bernard M’Gonigle against Bernard Flinn. The facts of this case are so fully stated in the opinion of the court as to render any other statement of them unnecessary. argued that the present plaintiff could not maintain the action, and cited 7 Peters 492; 15 Ser#. & Rawle 107; 8 Watts 382. on the same point, cited 4 Wend. 414; 1 Chit. PI. 2-5; 4 Wharl. 72; 6 Watts 182.

John L. Smith, assignee of Alexander Neill, against John M’Pher-son Brien. This was a scire facias sur mortgage, in which the defence was made by the judgment creditors of the defendant. On the 14th November 1840, John M’P. Brien, the defendant, gave his note, with James A. Buchanan and Alexander Neill as sureties, to the Bank of Hagerstown for $7000, payable at sixty days after date.

John M’Clintock against James H. Devor, Esq. This was an action of ejectment for twenty acres of land, in which each party claimed under the same original title. The land was originally in Cumberland county, and that part of it which was erected into a new county, called Perry, in 1820.

This was an action of ejectment by Solomon Shatto against John D. Creigh, to compel the payment of a balance of purchase money by the defendant, who purchased the land from the plaintiff.

<p>A scire facias will not lie against the personal representative of a deceased defendant in a joint judgment, although it may be suggested in the writ that a surviving defendant in the same judgment is utterly insolvent.</p>

<p>An ex parte affidavit made to lay the ground for a rule to show cause why a judgment should not be opened and the defendant let into a defence, may be given in evidence in a trial of an issue between other parties, where the record of that judgment itself is pertinent evidence, for the mere purpose of showing the grounds upon which it was opened.</p> <p>An administrator having sold the real estate of his intestate by an order of the Orphans’ Court, gave a bond to the purchaser, to indemnify him against an outstanding incumbrance or defect in the title : and it was held that he was bound by his obligation.</p> <p>A suit erroneously brought in the name of A, upon a bond of indemnity, cannot be given in evidence in a suit rightly brought upon the same instrument in the name of B.</p> <p>If the assignee of a bond fail to recover it from the obligor by reason of the consideration of it having failed before the assignment of it was made, he may recover back from the assignor the money he paid for the assignment, whether he hold his guaranty or not.</p>

<p>An executor is entitled to a credit in his administration account for fees paid to counsel for their professional services in establishing the validity of the will and the bequests therein contained, when tne legatees entitled to the estate are the parties in interest.</p>

<p>“ To my nephew T, I give and bequeath all my estate, real and personal, he paying the legacies hereinafter mentioned Held, to create a charge upon the land devised ; and upon a sale of it by the sheriff as the property of the devisee, the legacies are payable out of the proceeds.</p> <p>Land may be sold subject to a mortgage, although it be not the first incum-brance, if it be so understood and agreed to by the purchaser at the time of sale.</p>

<p>If the administrators of an estate take a note, with security, payable in six months, for the assets of the intestate sold at vendue, and the payors fail before it becomes due, they will be exonerated from liability for it: but if the payors are able to pay when the note becomes due, and the administrators make no effort to collect it, and it becomes lost by the subsequent insolvency of the payors, they will be chargeable with the loss.</p>

<p>ERROR to the District Court of Lancaster county.</p> <p>The Commonwealth of Pennsylvania against Philip Reitzel, co-obligor in a bond with Frederick Hambright and others. This was an action of debt upon the official bond of Frederick Ham-bright and others. Frederick Hambright had been appointed collector of tolls upon the Columbia railroad at Lancaster in 1839, and every year thereafter until 1843. Each year he was appointed he gave a new bond with different sureties; and on the 19th April 1843, when he was appointed, Philip Reitzel and others became his sureties. On the 25th March 1844, the account of the receipt and payment of tolls by Hambright, from 1839 up to the time when he went out of office, was made by the Auditor General, and a balance struck of $10,095.80, which was duly certified: and the Commonwealth claimed to recover this balance. The defence was that the defendant was only liable for the defalcation of Hambright during the one year in which he was his surety; and he offered evidence to show what that amount was. The plaintiff objected, on the ground that the settlement by the accountant officers of the Commonwealth was final and conclusive, if not appealed from in pursuance of the Act of 30th March 1811. But the court below (Hayes, President) was of opinion that the defendant’s liability could only be for the defalcation which accrued during the time he was the surety, and therefore admitted the evidence, and sealed a bill of exception at the instance of the plaintiff.</p> <p>The defendant, having first released Frederick Hambright, the principal in the bond, from all liability to him for the costs of this action, offered him as a witness. The plaintiff objected to his competency, but the court overruled the objection, and sealed a bill of exception.</p> <p>It also appeared on the trial, that during the year when the defendant was surety several payments were made to the Commonwealth out of moneys collected during the year; the plaintiffs contended that such payments should be applied to the discharge of the previous indebtedness of the officer; but the court Avas of a different opinion, and instructed the jury to apply such payments to the relief of the defendant. The jury rendered a verdict for the plaintiff for $2342.</p> <p>contended that the settlement made by the Auditor General was conclusive, and cited the Act of 30th March 1811; 3 Yeates 543; 4 Yeates 361; 8 Watts 37; that Hambright was not a competent witness; 5 Watts & Serg. 509; 6 Watts & Serg. 514; and as to the appropriation of payments, 3 Watts & Serg. 324.</p> <p>argued that the settlement of the account did not purport to be a settlement of the liability of the officer for the time when the defendant was surety, and he could only be charged for the defalcation of one year. 4 Dali. 282; 1 Peters 46. The Commonwealth made no appropriation of the payments; they were simply credited to the officer; the law will therefore appropriate them so that justice may be done to the surety. 7 Crunch 572; 9 Cow. 42; 4 Dali. 282; 15 Wend. 19; 8 Wend. 403; 1 Esp. N. P. 229.</p>

<p>APPEAL from the decree of the Court of Common Pleas of Perry county, appropriating the proceeds of the sale of the real estate of James Morrison, deceased.</p> <p>James Morrison died intestate, seised of the real estate which was the subject of sheriff’s sale. By a proceeding in the Orphans’ Court partition was made of the estate into three parts, which were severally taken at the valuation by three of the sons, each of whom entered into recognizances, with securities, for the payment of the shares of their sisters, Rebecca, married to John L. Lamareux, Margaret, Eliza, Mary, Jane and Horabella Morrison. At the death of James Morrison there were judgments against him. Upon one of them in favour of Anderson’s executors, which had been revived with notice to the heirs of James Morrison in possession of the land, a fieri facias was issued and levied on the estate, and it was afterwards sold on a venditioni exponas, and the proceeds of that sale was the money now in court.</p> <p>After paying all the judgments which were liens in the lifetime of James Morrison, there remained about $1200 to be appropriated. Ralph Ewing claimed the money upon a judgment obtained against the administrator of James Morrison for $169.07. The court rejected this claim on the ground that it had not been prosecuted to judgment with notice to the widow and heirs. P. Stambaugh claimed $26.03, the amount of a judgment obtained against the administrator of James Morrison, deceased. The court refused to decree the payment of this judgment.</p> <p>The administrator de bonis non of James Morrison claimed the whole fund, after deducting liens in the lifetime of the intestate, and tendered a bond with sufficient sureties, which was approved by the court, for a legal appropriation of it, and exhibited a claim of John Stambaugh for $5.90, and of John Cams for $33.84 against the estate.</p> <p>Lamareux and wife, and the other heirs of James Morrison, deceased, claimed that the money should be appropriated by the court, and after the payment of the just debts of James Morrison, deceased, that the residue should be paid to them on their recognizances. But the court decreed that the money should be paid to the administrator de bonis non. From this decree all the recognizees appealed, and assigned for error that the court decreed the money to the administrator de bonis non.</p>

<p>In an action upon a recognizance taken by the Orphans’ Court, in the name of the Commonwealth, to secure the payment of money, brought for the use of another, proof by the defendant that the person for whose use the suit is brought is not entitled to the money, furnishes no defence to the recovery by the legal party. The right to the money will be determined when it is recovered from the defendant.</p>

<p>One who furnishes lumber, at the instance of a contractor, for a building on the ground of a stranger, must provide for his security by the terms of his bargain: hence a house rebuilt by an insurance company, in discharge of their liability upon a policy, is not liable to a lien for materials furnished to the contractor.</p>

<p>A workman who contracts with the Commonwealth íot the construction of a piece of work upon the Pennsylvania Canal for a stipulated price, is liable upon an implied assumpsit to pay the owner of the land on the line of the work from whom he takes the materials used in its construction.</p> <p>One who contracts to do work for the Commonwealth is entitled to any peculiar advantage which the law provides for the Commonwealth, as if by its own agents it were doing the work; and, therefore, in estimating the damages done to the owner of land from which materials were taken, it is a legitimate inquiry, whether, upon the whole, an injury was done to the land of the plaintiff.</p>

<p>ERROR to the District Court of Lancaster county.</p> <p>Slater Brown against John O. Boyd and others, heirs at law of Mary Boyd, deceased. This was an action of ejectment for 15 acres of land, in which the parties agreed to the following facts to be considered in the nature of a special verdict:</p> <p>James Porter died in the year 1797, seised in fee of a large tract of land at Peach Bottom, in Little Britain township, Lancaster county, including the land in dispute: having on the 3d day of January 1775, made his last will and testament, in which is the following clause:</p> <p>“ I give and bequeath unto my son William all the houses and buildings of what nature and kind soever, that are situate at or about Peach Bottom, on my lands there, whether held by Maryland or Pennsylvania titles, and the land whereon they stand : and also as much land adjoining as is absolutely necessary for egress and regress: and also the land now occupied with the saw-mill, dam, and the races : and also all the advantages of the ferry, save what use my son Andrew may make thereof for his own private conveniency. And the residue of all the said Peach Bottom lands I give and bequeath to my sons William and Andrew, their heirs and assigns for ever, as tenants in common, to be equally divided betwixt them according to quantity and quality, share and share alike.”</p> <p>To December Term 1798, No. 4, in the Circuit Court of Lancaster county, William Porter, devisee above named, prosecuted an action of partition against Andrew Porter, the other devisee, demanding partition of all the lands at Peach Bottom devised to them by the will of their father; in which action on 24th April 1800, there was judgment quod par tilio fiat. To September Term 1800, No. 1, a breve de partitione faciendo duly issued thereon: whereupon, by inquisition taken 7th June 1800, before Christian Carpenter, Esq., sheriff, the inquest allotted and assigned 192 acres and allowance, part of the said lands, in the said inquisition particularly described by metes and bounds, together with a lot for a garden, containing part of an acre, in the said inquisition described, and cut off from the eight-acre tract hereinafter mentioned, to Andrew Porter in severalty, to hold to the said Andrew Porter and to his heirs and assigns for ever, in full for his equal half part or share of the premises in the said writ mentioned, being part thereof: and the said inquest allotted and assigned 168 acres and allowance, other part of the said lands, in the said inquisition particularly described by metes and bounds, together with two tracts of warranted land adjoining Oliver Caldwell’s land and the river Susquehanna, the one containing 8 acres, more or less, and the other containing 15 acres, more or less, (reserving out of said eight-acre tract the garden lot therein before allotted to Andrew Porter, and the ground on which Andrew Porter built a house on the river-side), to William Porter in severalty; to hold to the said William Porter and to his heirs and assigns for ever, in full for his equal share or half part of the premises in the said writ mentioned, being the residue thereof: which inquisition was duly confirmed by said court.</p> <p>William Porter and Andrew Porter entered upon and took possession of the different tracts of land thus allotted and assigned to them respectively in severalty; and by deed of indenture made 23d June 1800, between the said William Porter and Nicholas Boyd, the said William Porter, referring to the said clause in the will of James Porter, deceased, and the above writ of partition and proceedings thereon, conveyed to the said Nicholas Boyd and his heirs the tract of 168 acres and the two tracts above described, containing together 23 acres, with the houses, buildings and appurtenances : being the whole purpart allotted and assigned by the inquest to the said William Porter. Nicholas Boyd, at the time of this conveyance to him, was the son-in-law of William Porter, having previous thereto married Mary, his only daughter, and had been put in possession by William Porter, his father-in-law, of the property conveyed, before the execution of the deed to him. Nicholas Boyd remained in possession till his death; his wife continuing to live with him on the property till her death. After his death (in 1840) his children, the defendants in this suit, came into and continue in the possession thereof. By deed poll dated 22d December 1800, the said Andrew Porter conveyed to Vincent Stubbs and his heirs the tract of 192 acres allotted and assigned to him by the inquest.</p> <p>William Porter died in the year 1804, leaving Mary Boyd, wife of Nicholas Boyd above named, his only child and heir. Andrew Porter died in the year 1813, leaving two children, John Porter, who has since died, leaving issue, and Eleanor, since married to Edward Hickley, who is still living. Mary Boyd died 30th January 1840, leaving her husband Nicholas Boyd surviving her, and five children by him, John Oliver Boyd, Nicholas A. Boyd, Ann, since married to William A. Brown, Alice Boyd and Stephen W. P. Boyd, who are defendants in this suit. Nicholas Boyd died 22d December 1840; and after his death, on 7th December 1844, by deed poll of that date, John Ehler, Esq., sheriff of Lancaster county, having levied thereon by virtue of due process of law, conveyed to Slater Brown, the plaintiff, and his heirs, all the right, title and interest of the said Nicholas Boyd, of, in and to the tract of 15 acres above described, with the appurtenances.</p> <p>At the date of the will of James Porter and at the time of his death, all the houses and buildings on his lands at Peach Bottom were erected on the two tracts, one of 8 acres and the other of 15 acres, allotted and assigned as above to William Porter. The land claimed in this action is the said tract of 15 acres above described. The following persons claim to be co-defendants with those already named in the record : Eleanor Hickley, Patrick Ewing, John M. Porter, J. H. Porter, Robert E. Porter, Elizabeth M’Cardle, Ellen Harris, Margaret A. Harland and Sarah Hutton ; being, with those already named, heirs of James Porter the testator. The judgment to be entered on the supposition of the necessity of the whole tract of 15 acres being necessary for the enjoyment of the buildings; their actual necessity for that purpose being reserved as a question for future adjustment.</p> <p>If under the above statement of facts the plaintiff is entitled to recover, then judgment for the plaintiff with costs; otherwise judgment for the defendants.</p> <p>That part of the will of James Porter which related to the subject, was as follows : — “ Thirdly, I give and bequeath unto my son William all the houses and buildings of what nature and kind soever that are situate at or about Peach Bottom on my lands there, whether held by Maryland or Pennsylvania titles, and the land whereon they stand, and also as much land adjoining as is absolutely necessary for egress and regress; and also the land now occupied with the saw-mill dam and the races; and also all the advantages of the ferry save what use my son Andrew may make thereof for his own private conveniency. And the residue of all the said Peach Bottom lands I give and bequeath to my sons William and Andrew, their heirs and assigns for ever, as tenants in common, to be equally divided betwixt them, according to quantity and quality, share and share alike.”</p> <p>Then after certain specific devises and bequests, and directing his lands in Cumberland county to be sold by his executors, he concluded his will thus :—“ I give and bequeath all the residue of my estate, not already bequeathed or hereafter bequeathed, together with the cash arising from the sale of the lands in Cumberland, to be equally divided amongst all my children, whether male or female, married or single. Lastly, I give and bequeath to my daughter Mary Ewing 150 pounds Pennsylvania currency. And finally, I appoint my sons William and Stephen Porter, to be my executors of this my last will and testament, and do hereby revoke and disannul all other wills by me made.”</p> <p>The court below was of opinion that the plaintiff was not entitled to recover, and therefore rendered a judgment for defendants.</p> <p>argued that the will created a life estate in the land in controversy in William, with remainder in fee to William and Andrew; and in support of this position cited 2 Vent. 285; 3 Atk. 492; 2 Vern. 461; 2 Saun. 380; 13 Ves. Jun. 396; 1 East 456; 11 East 322. The plaintiff was entitled to recover upon the Statute of Limitations.</p> <p>The question depends upon the construction to be given to the word “ residue ;” and we contend it is but descriptive of the balance of the land, and not the quantity of estate. 4 Watts 90; 4 Kent 537. The act of the tenant for life will not affect the reversioner so as to bar his right by lapse of time. 4 Watts 221; 3 Watts & Serg. 520. But the possession of Boyd, who was entitled to the one-eighth, and therefore a tenant in common, would protect the other heirs from the bar of the Act of Limitations. 10 Hate 296; 2 Watts & Serg. 294; 5 Burr. 2604; 1 Salk. 285; Roper on Husband and Wife 3; Go. Lit. 42a; 1 Term Rep. 86.</p>

David Crawford and others, heirs at law of Daniel Crawford, deceased, against Daniel Kaufman. This was an action of ejectment for 89 acres of land. Both parties claimed under Henry Bitner, who by his will devised a tract of land containing 195 acres to his executors, to be sold, and the proceeds to be divided between his children.

<p>Where the corpus of a legacy is interest accruing on a residue after payment of debts, and not the residue itself, unless a contrary intent is collectable from the tenor of the will, the legatee is entitled to all that is made from the death of the testator.</p>

<p>ERROR to the Common Pleas of Juniata county.</p> <p>William Okeson against William Shirlock. Scire facias sur recognizance of bail; to which the defendant pleaded nul tiel record.</p> <p>The plaintiff gave in evidence the transcript of a judgment of a Justice of the Peace for $71.09, at the suit of William Okeson against James Shirlock, from which the defendant appealed, and this entry of a recognizance was made by the Justice:</p> <p>“ 8th March 1843, William Shirlock appears and enters into recognizance in double the debt and costs as special bail in the above suit, for an appeal according to the Act of Assembly of 1842.”,</p> <p>The writ in this case recited a recognizance in the form prescribed by the Act of Assembly.</p> <p>The court below was of opinion that the recognizance as contained upon the Justice’s record was wholly insufficient to support the writ, and therefore rendered a judgment for the defendant upon the plea of nul tiel record.</p> <p>argued that the minute made by the Justice was sufficient to enable him to draw the recognizance out at length, and it signified everything which the law required; and referred to the Act of 12th July 1842, Pam. Laws 347, sec. 33; 6 Wheat. 359; 5 Watts 333.</p> <p>argued that the law required that a recognizance should be taken in a sum certain, and it was not competent to make the recognizance good by anything dehors the record. 6 Watts & Serg. 50.</p>

<p>if a judgment be opened, and the defendant let into a defence upon the merits and pleads to issue, and the plaintiff afterwards issues a scire facias quare execu-tio non, to which the defendant appeared and confessed judgment of revival, and pleaded the proceedings on the original judgment, whereupon a judgment was entered for want of a sufficient plea, a writ of inquiry of damages issued and was returned finding the amount due, which was collected by execution: Held, that the original suit was no longer pending.</p>

<p>Upon a sale of the real estate of an intestate by an order of the Orphans’ Court for the payment of debts, the title remains in the heir until the contract of sale be, executed by the payment of the purchase money and execution of the deed : hence, upon the death of the heir subsequently to the confirmation of the sale by the court, and prior to the execution and delivery of the deed, his interest will descend as land and not as money.</p>

THIS was a rule to show cause why the appeal of B. Chew from the decree of the Orphans’ Court of Philadelphia county, dismissing him as executor of B. Chew, deceased, should not be quashed.

This was an action of assumpsit on a promissory note, brought by the Easton Bank against Coryell and Murray. After the charge of the court, the jury retired to deliberate upon their verdict, and after the lapse of some time came into court. After they had entered the jury-box and nine of them had been called, and before the clerk had finished calling them, the plaintiff asked to suffer a nonsuit.

Mary M’Williams, administratrix, &c., sued Stephen Payran, Jun., before a justice of the peace, who gave judgment for the defendant, from which the plaintiff appealed. To September Term 1836, No. 19, the plaintiff filed a declaration in debt for a penalty for taking an illegal fee, viz: the sum of fifty cents for an attachment against witnesses, and subsequently the plaintiff filed an amended declaration, to which the defendant pleaded, and issue was joined.

<p>An auditor appointed to adjust and settle the accounts of a voluntary assignee, under the Act of 14th April 1836, is confined to the account between the as-signee and the cestui que trust. Third persons claiming adversely cannot interfere in the settlement, but must resort to adversary proceedings.</p> <p>The accountant may, however, if he chooses, pay over to adversary claimants, or claim to hold as a stakeholder for his indemnity; and if he does so, the propriety of it will be for the auditor to determine in the first instance.</p>

<p>The Act of 31st March 1792, “to enable executors and administrators by leave of court to convey lands and tenements contracted for with their decedents,” &c. is applicable to a case in which a decedent received from his debtor a conveyance in fee of certain land, absolute on its face, and at the request of the debtor, received from another person a conveyance in fee of other real estate, and afterwards wrote letters, referring to the whole as the debtor’s property, which he was ready to re-eonvey to him upon the repayment of the debt.</p>

On the 12th July 1842, judgment was entered in the Common Pleas of Delaware county in favour of William Speakman, Sen., against William Speakman, Jun., on a bond and warrant of attorney given by the latter to the former for a debt of $3000.

This was a scire facias upon the following claim, filed the 16th September 1840: — In the District Court for the city and county of Philadelphia and state of Pennsylvania.

THIS was an action of debt brought by Matthew L. Bevan and others, trading under the firm of Bevan and Humphreys, against The Insurance Company of the State of Pennsylvania on a policy of insurance on freight per ship Liberty, tried before Judge Sergeant at Nisi Prius in November 1842, in which on motion of the defendants, after a large mass of evidence had been gone through on the part of the plaintiffs, the court granted a nonsuit, and now the case came up by writ of…

<p>An amount of ground-rent, the arrears of several years, is payable out of the proceeds of a sale by the sheriff of the premises out of which the rent is payable, although during all the time the rent was accruing there was property on the premises which might have been distrained; but it does not follow that interest will be allowed upon such arrearages.</p> <p>A scire facias will lie in the Common Pleas of Alleghany county, and may be there prosecuted to judgment, after the original jurisdiction of that comt was transferred to the District Court.</p> <p>A substantial variance between the recital in a writ of scire facias and the judgment to be revived, would break the continuity of the lien; but if the objection be formal and technical only, it will not affect the lien of the original.</p> <p>A judgment upon a writ of scire facias quare executio non has the effect of a judgment to continue the lien.</p> <p>Informalities in a writ of scire facias to revive a judgment cannot be taken advantage of by a stranger to the judgment.</p> <p>On an appropriation of the proceeds of a sale of real estate by the sheriff, judgment creditors may avail themselves of a right to set aside a judgment given and obtained by collusion for the purpose of defrauding them ; but they cannot thus attack a judgment on the ground that the defendant in it was overreached or taken advantage of by the plaintiff with regard to its consideration.</p>

<p>Strictly and properly speaking, a warrant and survey thereon, although the purchase money be paid to the state, does not constitute a legal in contradistinction to an equitable title for the land embraced by it. The warrant is a mere authority to survey the land for the benefit of the warrantee or the owner thereof. It contains no grant or conveyance of the land. This is effected by the execution of a patent-deed on the part of the state, after the survey shall have been made and returned on the warrant. But a patent does not give the patentee any superior advantage, in respect to the land, unless he be legally entitled to it. For a war-rantee, without a patent, if he be legally and equitably entitled to a patent, may recover the land in ejectment from the patentee, who is not entitled thereto, as he had no right to obtain it.</p> <p>If the vendor of lands, holding them under warrants and surveys, without patents, agrees by articles of agreement made with the vendee, to give the vendee immediate possession of them, which is done, and agrees also well and sufficiently, on or before a certain future day, to convey them in fee, by such deed or deeds as the counsel of the vendee shall reasonably advise and devise, on the vendee paying the one-half of the purchase money, and securing the other half, by giving bonds and mortgage on the lands, to be paid in two annual instalments, with the interest thereon semi-annually; and. upon the vendee failing to pay, and secure the purchase money, the vendor or his heirs or devisees take possession of the lands again without legal process or the consent of the vendee, or those claiming from him, they cannot retain the possession until the vendee or those claiming from him tender or pay the purchase money due; but the vendee or those claiming from him may recover in ejectment the possession without tendering or paying the purchase money, or bringing it into court.</p> <p>But if the vendor or those claiming from him recover the possession by legal process, or by the consent of the vendee or of those claiming under him, he or they may retain the possession until they are paid the purchase money due or it is tendered, which must be done before the institution of an ejectment to recover the possession.</p> <p>Also, if after the vendor, or his heirs or devisees, have recovered possession by ejectment after failure to pay the purchase money, and the claim of the vendee has become vested by successive mesne conveyances, in two persons, as tenants in common, one of whom conceiving himself entitled to the whole claim of the original vendee exclusively, pays the whole of the purchase money, which had become payable, to the heirs or devisees of the original vendor, and takes conveyances from them, whereby he acquires their possession and right to the land, he may retain the possession of the whole against the other tenant in common, or his heirs, until they pay or tender the one-half of the purchase money paid by him, which must be paid or tendered before they can maintain an ejectment to recover the possession.</p> <p>So if the tenant in common, after paying the whole of the purchase money, is compelled to bring an action of ejectment against persons in possession and claiming a portion of the land under an adverse title, for the purpose of recovering the possession thereof, in which he succeeds, hut has been obliged to expend about $400 in prosecuting the suit and effecting a recovery of the possession, he will not be compelled to let the heirs of the other tenant in common into the possession of their undivided moiety until they pay or tender him the one-half of such expense, which if it cannot be agreed on, as to amount, by the parties, may be ascertained and fixed by the jury who try the cause; and the court, though the verdict be in favour of the plaintiffs, will take care that execution shall not be had until one-half of such expense be paid.</p> <p>But where such tenant in common, in possession of the land, erects buildings and makes substantial and valuable improvements thereon, without the consent of the heirs of the other tenant in common, though done under the impression, most probably, that he was sole owner of the land, and the heirs of the other tenant in common most probably ignorant of their right and claim to it, he can-" not claim to be reimbursed one-half of the cost and expense of erecting such buildings and making such improvements, by the heirs of the other tenant in common. For this he is without a remedy, further than the rents, issues and profits received by him from the property may reimburse him.</p>