Originally heard in the Court of Common Pleas of Clarion County.

The county of Clarion brought assumpsit for money had and received by Wilson and others.  The claim was for the difference between the actual cost of scrip purchased for the county, and the price charged.  But one point was made here, whether the commissioners were competent witnesses under the following circumstances.   They made the contract with the defendants.  The county auditors certified a statement of the accounts of the county treasurer, in which, in the list of outstanding debts due the county, was a charge against the commissioners individually for an over-payment to the defendant for procuring this scrip.  The defendants relied on this, there having been no appeal, and the time therefore having elapsed, to exclude the witnesses as incompetent, on the ground that this balance was a personal judgment under the act of Assembly, and that success in this action would discharge them.  The court admitted them, and this was the error assigned.  Judgment affirmed.

Originally heard in the Court of Common Pleas of Clarion County before P. J. McCalmont.

The plaintiff in this ejectment showed title in Mitlen, in 1835, a judgment against him entered on the 31st of July, 1838, in favour of the present plaintiff, and a sheriff's deed, dated February 23, 1841, acknowledged on the 26th.

All evidence was rejected by the court, who directed a verdict for the plaintiff, because there was no evidence that Mitlen himself had not paid the notes, they not having been produced, and consequently Henry had no right to sell the land.  Judgment affirmed.

Appeal from the Common Pleas of Clarion County.

Case stated on the distribution of the proceeds of a sheriff's sale.  A mechanics' lien was filed by the plaintiffs against Thomas F. Newell, the defendant in this execution, within six months after the work done, and materials furnished between March 1st and July 1st, 1842.  Under this, the sheriff's sale was made.  At the time the work was done (the particular date is not mentioned,) Newell had purchased the land by articles of agreement with Morrell, to whom, on the 1st of April, he had given judgment notes for the purchase money.  On the 29th of June, Morrell procured a deed from the holder of the legal title, to Newell.  On the 16th of July, judgment was entered on these notes, which judgment was assigned to the defendant below.  The court below gave judgment for the plaintiffs.  Judgment affirmed.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of assumpsit on book account, brought by John Lyon vs. Daniels & Williams, partners.  The narr. contained the common counts, and defendants plead the general issue, and payment, &c.

There being no evidence, the court ordered a non-suit to be entered, and discharged the jury.  After the jury had left the box, the plaintiff's counsel objected to the order of the court, directing a non-suit, and requested that the verdict of the jury be taken.  The court refused to recall the jury -- and the plaintiff's counsel again except to the opinion of the court.  Judgment reversed and venire de novo awarded.

Plaintiff called Jacob B. Lyon.  He was objected to by defendants' counsel, who proposed to prove that he was a partner with John Lyon, in the contract in question -- and that he ought to be joined as a plaintiff, &c.

To this offer of evidence, plaintiff's counsel objected, and the court overruled the objection.

Evidence was accordingly given as to Jacob B. Lyon being a partner; and the court, being of opinion that the evidence proved to the court that Jacob B. Lyon was a partner with John Lyon in the contracts in question, rejected the evidence of Jacob B. Lyon.

To this opinion, plaintiff's counsel excepted.

Originally heard in the Court of Common Pleas of Clarion County.

This case was an issue directed by the court, on appeal from the report of auditors of Clarion county. The matter to be tried was the legality of an order,
drawn by the late commissioners of Clarion county, on the treasurer, in favor of James Hasson, late sheriff of that county, for $200; and the questions tried were, whether Hasson was entitled to be paid for office-rent, and for fuel for the jail.

In the issue, Clarion county was plaintiff, and Richardson, executor of Richardson, and others, late commissioners, were defendants.

J. Buffington charged that the item of office-rent ought not to be allowed.

As to the claim for fuel, he charged, as stated in the opinion of J. Coulter, concluding, "We, therefore, think that this item ought to be rejected, and a verdict rendered against the defendants."  Verdict was rendered for plaintiff.  Judgment reversed and venire de novo awarded.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action by Alexander Reynolds, for use, (without stating the person) against Abraham Richards, to recover the amount of a note, as follows:

Twelve months after date, I promise to pay to the order of Alexander Reynolds, fifty dollars, with interest from the date hereof, and without stay of execution, after due, for consideration of the carpenter work in our article of agreement, for in-lot, No. 126, Nov. 3d, 1841.
Signed, Abraham Richards.
Test: A. Jamison.

 The court erred in its instructions to the jury.  Judgment reversed and venire de novo awarded.

The narr. contained a special count on a promissory note, and common counts.  Plea, payment, &c. Reynolds had an article of agreement with the commissioners of Clarion county, for two inlots.  He agreed to sell to Richards one of the lots, and Richards agreed to pay him $100, viz., $50 in hand, and $50 in carpenter work, at cash prices, to be paid when said Reynolds demands it.  Said Reynolds is to make the title as soon as the work is done.

Reynolds, on the 1st day of June, 1842, transferred the said note, by endorsement on it, without recourse, to Alexander Jamison; and it also appeared that Alexander Jamison endorsed the note in blank.

Originally heard in the Court of Common Pleas of Clarion County.

This was an ejectment to May Term, 1851, by Robinson, McConnell, and Buffington, v. Robert Elder and others, for 331 acres, more or less, of land in Perry Township, Clarion County.

On part of plaintiffs was given in evidence a warrant in 1785, and a patent in 1795, and various deeds.

The plaintiffs also gave in evidence articles of agreement, or lease under seal, dated June 3, 1830, between Joseph B. Lapsley, holding in trust for Thomas Cobb and Timothy Cobb, of England, and James Elder and others.

On part of the plaintiff a notice to defendants to quit was proved, served on or about 12th March, 1850.

No evidence was given on the part of the defendants, but they relied on the clause before cited from the agreement or lease.  Judgment affirmed.

One of the deeds was from Thomas McConnell to Joseph B. Lapsley, trustee for Thomas Cobb and Timothy Cobb, dated 19th October, 1820.  Also, deed from Lapsley, as trustee, to William D. Robinson (who was one of the plaintiffs), dated 20th January, 1851.

It was admitted that the defendants were in possession of the land in dispute under this agreement or lease.  By the agreement, several tracts of land were leased to James Elder and to William Hager, George Hager, and Joseph Troutman, three of the defendants, and others, who resided on the land, who were to hold according to their respective possessions as they then were, until the first day of April, 1832; the lessor to give them one full year's notice before first April to quit.  The parties of the second part covenanted to pay taxes, not to commit waste, &c., and to surrender the possession; and it further provided that "the party of the first part further agrees, that when said tracts of land are or shall be offered for sale, that the first offer shall be given to the parties of the second part upon terms as favorable to them as they will be offered to any other person or persons."

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of assumpsit by Joseph R. Ingersoll and others, trustees of the estate of William Bingham, deceased, v. James W. Guthrie.  It was brought on 20th February, 1850.  March 14, 1850, a narr. was filed containing the common counts; and on the same day, on the part of the plaintiffs, a rule was entered for the choosing of arbitrators.

At the time appointed three arbitrators were chosen, who were to meet on 25th April, 1850.  The arbitrators met and adjourned to meet again on the 26th April; and then being qualified, adjourned to meet on 6th June, 1850.  During the period of adjournment the agreement recited in the opinion of Woodward, J., was entered into.

The award was as follows:  "June 25, 1850.  Arbitrators met at the Court House in Clarion, and continued from day to day, and after hearing the parties, their proofs and allegations, do find for defendant eighteen thousand dollars, with costs."  Signed by the arbitrators.

The award was filed July 5, 1850.  On 18th July, 1850, eighteen exceptions to the award were filed, and an appeal was entered.

The exceptions were dismissed by the Court below, and the appeal was quashed.  Judgment affirmed.

Originally heard in the Court of Common Pleas of Clarion County.

This was an ejectment to May Term, 1849, by A. W. Johnston v. McCanna, Love, & Guthrie, for 1100 acres of land in Clarion township, the warrant for it being No. 5094.  The plaintiff exhibited a title from the Commonwealth.  Also a lease of the land, dated 5th December, 1838, by the plaintiff, by Brown, his agent, to Martin McCanna, one of the defendants.  The lease was for the term of one year from the 1st April, 1839, the rent to be $1 and payment of taxes; and it was provided, that at the end of the period, or at any time thereafter, or in case of default in payment of the rent, it should be lawful for the lessor, his heirs and assigns, to re-enter upon and repossess the premises.  The lessee covenanted to deliver up the possession at the expiration of the term.

The lease was subsequently approved of by Johnston.  His ratification in writing was dated 27th November, 1850; he stated that he was informed of it soon after its execution, and then and since approved of it.

The plea was, Not guilty. No disclaimer was filed.

Judgment, as against Martin McCanna, affirmed, and judgment against Henry Manson reversed, and a venire de novo awarded.

In the present case, the plaintiff's agent knew the lines of his tract, which were not marked on the ground, 5094 being an interior tract of a block of surveys, the outer lines of which only were marked.  It was testified that Manson did not live on the tract in suit. McCanna occupied the tract.  The lease to McCanna for tract 5094 was made 5th December, 1838, and ratified formally after this suit was brought.  It was a lease for a year, but after the year expired McCanna was permitted to hold over and make improvements until this suit was brought.

Testimony was given that Henry Manson, one of the defendants, did not live on the tract in dispute -- his improvement was on a different tract.  Nothing was shown as to the extent of his claim.

Originally heard in the Court of Common Pleas of Clarion County.

This was a feigned issue directed by the Court between James E. Breading and George E. Arnold, as surviving partners, and various other creditors of Alexander & McIlroy, as plaintiffs, and John H. Boggs, as trustee of William Elliott, and others, defendant.

The issue was directed in the Court below to try whether the judgment to December term, 1850, in favor of John H. Boggs, trustee, v. Alexander & McIlroy, was fraudulent and void as to plaintiffs, or in violation of the provisions of the Act of 17th April, 1843, and the proviso of the 4th section of the Act of 16th April, 1849, in reference to assignments.

The judgment in favor of John H. Boggs was entered on the first day of January, 1851.  The judgment in favor of Logan, Wilson & Co., who were some of the plaintiffs in the issue, was entered on the 4th January, 1851; that of Breading & Arnold, and others of the plaintiffs, were entered on 17th January, and others on the 24th January, on awards of arbitrators.

May 3, 1852, verdict was rendered for defendant, and on May 8, judgment entered and distribution decreed, the same to be delayed for three weeks.  Judgment and decree affirmed.

Henry Alexander and James G. McIlroy, partners, iron masters in Clarion county, confessed a judgment to Jacob Painter & Co., for the sum of $7934.90, which was entered on the 6th December, a. d. 1850, in the Common Pleas of Clarion county. Upon this judgment a writ of fieri facias was issued on the sixth December, 1850, and all the personal property of the defendants was levied upon and sold by the sheriff, on the 8th of January, 1850, for the sum of $2179.  Under the same writ of fi. fa., the defendants, Alexander & McIlroy, having waived inquisition, the sheriff levied upon and sold, on the 4th day of February, 1851, the real estate of the said partners for the sum of $11,300.

These sums, amounting to $13,479, were brought into Court for distribution, and so much of the fund as was applicable to the judgments prior to that of the plaintiffs in the issue, was distributed by order of the Court.  The balance remained in Court to await the decision of the feigned issue.

Originally heard in the Court of Common Pleas of Clarion County.

This was a feigned issue directed by the Court, in which George A. Lyon and David K. Turney were plaintiffs, and Hampton, Smith & Co. were defendants.  George A. Lyon had a judgment against John Lyon entered on 31st August, 1849; Turney had a judgment against John and Jacob B. Lyon entered on 24th July, 1849; and Hampton, Smith & Co. had a judgment entered previously, viz., on 15th June, 1849, against John and Jacob B. Lyon.  Certain real estate of John Lyon was sold by the sheriff, and previous to the distribution of the proceeds, an issue was directed to try, 1st, whether or not the judgment of Hampton, Smith & Co. v. J. & Jacob B. Lyon was fraudulent and void as to the plaintiffs; 2d, whether said judgment was entitled to preference, in the distribution of the proceeds of the sale; and, if so, to what extent, as against the judgments of the plaintiffs. The real estate was sold on 7th May, 1851.

On the judgment of Hampton, Smith & Co., against John & Jacob B. Lyon, which was an amicable one, for $4786, an execution was issued on 16th June, 1849, and a levy was made on personal property to the amount of $6731.50. The execution was returned, "stayed by order of Judge Myers, Aug. 28, 1849."  Judge Myers was one of the associate judges of the county.  Sept. 3d, 1849, a rule was granted to show cause why a writ of vend. exp., to sell the personal property, should not issue; and on 6th May, 1850, this rule was made absolute.  No vend. exp. ever issued in the case.  The personal property levied on, or a part of it, was sold on an execution on another judgment.  Hampton, Smith & Co. claimed the money arising out of the partnership and individual real estate of the partners, as their judgment was first in order of time. Judgment reversed and venire de novo awarded.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of trespass quare clausum fregit, by Alexander S. Porter v. James McGinnis, Robert McGinnis, and Robert McGinnis, Jr.

Alexander S. Porter brought this action of trespass quare clausum fregit, &c., in the Court of Common Pleas of Clarion County to May Term, 1849, against James J. McGinnis et al., for breaking and entering the enclosure of said Porter, "that is to say, a certain enclosure situate in the township and county aforesaid, and bounded on the north by lands of McGinnis, on the east by lands of John Foster McGinnis, on the west by Benjamin Junkin, and on the south by lands of William McMichael, containing 20 acres more or less."

On the trial of the cause in the Court below, the defendants plead liberum tenementum.  To sustain the plea, they showed that James McGinnis, the father of James J. McGinnis, settled on this land in 1812, believing it to be vacant, and intending to hold it by actual settlement.  He commenced an improvement, raised a barn, built a house, cleared the land, cultivated it, and resided thereon until his death in 1836, after which his son John and daughters resided on the same tract up to the time of the trial.

There was no proof that James McGinnis had told Joseph Junkin that he intended to claim the land by actual settlement, and no other proof of notice than the presumption arising from the facts and circumstances of James McGinnis's claim, and the notoriety thereof as given in evidence.  Judgment affirmed.

On the 24th of May, 1815, a warrant, No. 6072, was granted to James McGinnis, the father, "for 300 acres of land, including an improvement adjoining lands of John Junkin, Franklin College," &c.  The survey thereon was made on the 21st May, 1819, and duly returned and accepted the 27th February, 1821.

At the time James McGinnis first commenced the settlement on this tract, he was, according to the evidence of the plaintiff, holding the adjoining tract, No. 231, under a lease from Joseph Junkin, the executor of John Junkin. The lease was for nine or ten years, said to be in writing, but could not be found. It expired in 1815, but afterwards, James McGinnis, who lived on his own claim, returned the John Junkin tract, No. 231, to the assessor, and paid taxes for it as the agent of Junkin until 1826, when Agnew leased the tract No. 231 from Junkin, the then owner. There was no proof that James McGinnis had told Joseph Junkin that he intended to claim the land by actual settlement, and no other proof of notice than the presumption arising from the facts and circumstances of James McGinnis's claim, and the notoriety thereof as given in evidence. There was no entry on the part in controversy by the plaintiff until 1843.

Originally heard in the Court of Common Pleas of Clarion County.

This was an ejectment by Reed McClune v. Solomon Cyphert, Benjamin F. Harley, James Harley, and Jacob Peas, for a tract of land in Clarion county, containing about 156 acres.

The land had been the property of G. W. Corbett, George Rynard, and Solomon Cyphert.  It had been sold twice at sheriff's sale; at the first sale it was purchased by McClune, the plaintiff, and at the second by B. F. and James Harley, two of the defendants.  The sale to the plaintiff was made upon a judgment to December Term, 1849, in favor of John McCoy v. Corbett, Rynard, and Cyphert.

On the trial it was offered to be proved, on the part of the defendants, that the judgment of McCoy, under which the plaintiff claimed, was confessed after a dissolution of the partnership of Cyphert, Rynard & Corbett, and that by the terms of the dissolution, Cyphert was made the settling and receiving partner -- that Corbett, without any authority from Rynard or Cyphert, employed counsel and procured the confession of judgment; and further, that at the time of and before the sale, McClune, the purchaser, was duly notified of the defective character of the judgment.  This was objected to and was overruled -- and the rejection of it was assigned for error.

December 6, 1852, verdict for plaintiff.  Judgment affirmed.

Originally heard in the Court of Common Pleas of Clarion County.

The great obstacle in the plaintiff's way, was that the deed under which the defendant claimed was made seven years before the debt, which was the foundation of the sheriff's sale, was contracted.

To render a voluntary conveyance void as to subsequent creditors, it must appear that it was made in contemplation of future indebtedness, and until this was shown the plaintiff could not call upon the defendant to prove the consideration for the conveyance.

There was no evidence in the case tending to establish the allegation that the deed to Wilson was intended as a mortgage, and hence the answer of the court to the effect of the deed, if it was so intended, was a mere abstraction, and cannot be assigned for error.  Judgment affirmed.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of ejectment, brought by the defendant in error, against Samuel Wilson and Samuel Beighley, for 230 acres of land.  

The defendants claimed under the trustees of William Bingham, under articles of agreement between them and Samuel Beighley, dated December 14, 1849.  Samuel Beighley sold to Samuel Wilson, by agreement, part of the land in dispute.  The date of the execution of the agreement, under which Guthrie claimed, was contended by the defendants to be altered, from 1839 to 1836. In 1839, J. W. Guthrie, the plaintiff, was agent for the estate.  Judgment affirmed.

Originally heard in the District Court of Allegheny County.

Winslow, Lanier & Co. brought replevin against Samuel Leonard for 82 tons of pig metal, and on the trial the following case was presented.

On the 22d May, 1851, D. B. Long & Co. made an agreement in writing, in which they say, "we have this day sold to Winslow, Lanier & Co. 400 tons of pig metal, now at our landing at Washington Furnace (Clarion county, Pa.), or that will soon be delivered there, and we hereby direct Mr. McClure (clerk at the furnace) to give them possession thereof, or such agent as they may send therefor.  And we also wish Mr. McClure to render all the aid he can towards the shipping thereof."

The oral testimony showed that this was in payment of a debt due by Jesse Carothers, one of the firm of D. B. Long & Co., to the plaintiffs, the other partners consenting thereto.  Under this contract the plaintiffs claimed 82 tons of pig metal, which came from the Washington Furnace into the possession of the defendant, who claimed to hold it as bailee of John Brenneman.

 Judgment reversed and a new trial awarded.

Originally heard in the Court of Common Pleas of Clarion County.

This was an alias scire facias on a judgment obtained by the plaintiff's intestate, in his lifetime, against defendant, for $1088.33.

The intestate, Charles Evans, and defendant, Levi G. Clover, were at one time partners in the mercantile business, in the borough of Brookville, Jefferson county, Pennsylvania, and the partnership was carried on under the name and firm of Evans & Clover.  This partnership was dissolved by the defendant buying out the intestate, Charles Evans, and undertaking to pay the partnership debts.

The defendant agreed to pay Evans for his interest, $3264.99, for which said sum, Clover gave three judgment notes, each for the sum of $1088.33; two of which notes were entered in the Common Pleas of Clarion county, and one in the Common Pleas of Jefferson county.  These three several judgment notes were executed and delivered on the 29th day of August, 1843; and on the same day an agreement in writing was entered into between Charles Evans and Levi G. Clover, in which it is recited that the three bonds above mentioned, of $1088.33 each, have been given, and it is agreed that they shall be entered, two in the Common Pleas of Clarion county, and one in the Common Pleas of Jefferson county.

Judgment is reversed and a venire de novo awarded.

The plaintiff then gave in evidence the payments made by Evans, on the judgments and claims mentioned in the bond, and then offered in evidence the record of a judgment.  William Barber & Co. v. Evans & Clover, No. 104, September term, 1843, and others of same character, to show that Evans paid debts belonging to the firm, which Clover was bound to pay.

[1843 agreement continued] ...and that if at any time Clover may have an opportunity so sell any of his real estate in Clarion or Jefferson counties ... Clover, bound and obligated himself to pay and discharge all debts and demands that may be owing and due by the firm of Evans & Clover ... Clover may be entitled, or may be found due him on a settlement with the commissioners of Clarion county, for his (Clover's) share of moneys arising from the sale of the town lots in the town of Clarion, and all moneys that may be due to said Clover, agreeably to the terms of a contract between Clover and Edward Derby, of the one part, and the commissioners of Clarion county aforesaid, of the other part, for the erection of the court house in said county of Clarion; ... in payments of certain judgments or claims due Simon Mudge and others, named in said bond, creditors of the firm of Evans & Clover, doing business as co-partners in Brookville, Jefferson county.

Originally heard in the Court of Common Pleas of Clarion County.

Ejectment to enforce the payment of purchase-money.

John G. Beaver, the plaintiff, sold to James Fox, one of the defendants, the tract of land for which this ejectment was brought, by an article of agreement dated the 23d day of February, A. D. 1850, for the price of seven dollars per acre, four hundred dollars to be paid in hand, and the balance in four equal annual instalments.  On the 9th day of January, 1856, this action of ejectment was commenced for the purpose of compelling the payment of the last instalment of purchase-money, which the plaintiff alleged remained due and unpaid.  The plaintiff gave in evidence certain conveyances, showing the legal title to have been vested in him at the date of the contract between him and Fox, and also the writ in this action, and rested.

The defendants, to maintain the issue on their part, gave in evidence the agreement between John G. Beaver and James Fox, before referred to, and also the record of an action of ejectment, John G. Beaver v. James Fox, No. 21, of September Term, 1853, for the same tract of land, in which there was a rule of reference entered under the Compulsory Arbitration Act on the 28th day of January, 1854, and an award on the 9th day of March, 1854, in favor of the plaintiff for the land, to be released on the payment of $1089.65, on, or before the 9th day of September, 1854.  The defendant further gave in evidence an assignment of the above judgment by James Campbell, attorney for Beaver, the plaintiff, and called testimony to prove the reception of the money by Beaver.

At the time of the meeting of the arbitrators in the ejectment, No 21, September Term, 1853, the whole of the purchase-money was due, except the last instalment, which was not included in the said award.  Judgment affirmed.

Originally heard in the District Court of Allegheny County.

Replevin for 400 tons tons pig metal, which plaintiffs allege that they purchased from D. B. Long & Co. (Long, Church & Carothers,) in payment of a debt of Jesse Carothers, and that they are entitled to the iron now in dispute, under and by virtue of that contract. The following is a copy of the agreement under which plaintiffs claim, viz.:

"Pittsburgh, May 22, 1851.
"We have this day sold to Winslow, Lanier & Co., 400 tons pig metal, now at our landing at Washington Furnace, or that will soon be delivered there, (Clarion County).  And we do hereby direct Mr. McClure to give them possession thereof, or such agent as they may send therefor.  And we also wish Mr. McClure to render all the aid he can towards the shipping thereof.
"D. B. LONG & CO.
"The above pig metal will be delivered to Adam Holliday, our agent.
"WINSLOW, LANIER & CO.
"May 24, 1851."

"This is an action of replevin for 82 tons of pig metal.  The plaintiffs claim title under a sale to them on the 22d day of May, 1851, by D. B. Long & Co., of 400 tons of pig metal, (of which the iron in dispute is alleged to be part) at $25 per ton."  Judgment affirmed.

The defendants do not claim that their testator, Samuel Leonard, was the owner of the metal in dispute, but they allege that it is the property of John Brenneman and others, creditors of D. B. Long & Co. Brenneman claims the metal under a sale or transfer made, (pursuant to instructions from D. B. Long), by William McClure, the manager of the firm of D. B. Long & Co., on the 26th of May, 1851, at $25 per ton, to pay a debt due by D. B. Long & Co. to himself, (Brenneman), of $1000; also, to pay a debt due by D. B. Long & Co. to Long & Miller, of $1400; also, to pay a debt due by D. B. Long & Co. to Thomas Bolton, of $600.

Brenneman claims to hold a part of the metal, to wit, 40 tons in his own right, and the residue, 42 tons, in trust for Long & Miller, (D. B. Long and Alexander Miller, owners of Beaver Furnace), and Thomas Bolton, creditors of D. B. Long & Co.

The firm of D. B. Long & Co., was composed of D. B. Long, Samuel Church, and Jesse Carothers.

Originally heard in the Oyer and Terminer of Clarion County.

The defendant was jointly indicted with one Ira Davis, for the murder of Jared Lewis, but was tried separately.

He had robbed the house of Thomas Stewart, and had absconded.  On the information of Mr. Stewart, a warrant was placed in the hands of constable Cartwright for his arrest.  Cartwright wrote a deputation on the writ, and gave it to Jared Lewis, a private citizen, to execute, for which service Stewart was to pay him.

The jury found the defendant guilty of murder in the first degree.  There was a motion made for a new trial, which on argument was overruled, and the prisoner sentenced.

The case was then removed into this court by writ of error, where there were seventeen assignments of error presented by defendant's counsel, only two of which were noticed by this court.

And now, to wit, February 25th 1861, the judgment of the Court of Oyer and Terminer in this case is reversed, and a new trial is awarded, and the record is remitted, together with a copy of this opinion.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of ejectment brought by Samuel F. Plumer and Frederick G. Crary, for the use of Frederick G. Crary, against John L. Reed, for twenty-two acres of land in Licking township.

The case was this:  In 1837 Mrs. Curwin entered into articles of agreement with Henry Neely, for the sale of 216 acres of land.  Some time during the same year Neely agreed to sell John L. Reed one end of this tract, containing about 116 acres, under which agreement Reed paid $ 5, and went into possession, built a house and stable on it, cleared a portion of the land, and is still in possession.

The case was tried twice.

[Opinion]  The action seems to have been brought for 22 acres, including, I suppose, the 12 acres for which the defendant took an article of agreement from the plaintiffs in 1849.   But the question discussed and decided, related only to the 10 acres which Teats swears he ran off for Reed by Crary's direction, and in his presence.  If Reed have not paid for the 12 acres according to his contract, the plaintiffs have a right to turn him out of that part; but the 10 acres he would have the right to hold, if the jury should find the facts alleged.

For not submitting the evidence of those facts to the jury, the judgment is reversed, and a venire facias de novo is awarded.

Originally heard before McCalmont in the Court of Common Pleas of Clarion County.

This was one of thirteen actions of debt brought in the court below, by Samuel Wilson against Alexander Guthrie and Hugh McGuire, which by agreement were submitted to arbitrators, whose award was to be final, but with the stipulation that if "any legal questions should be raised and decided by the arbitrators, they or a majority of them should set them out specifically, and make report to the court for adjudication and decision thereon, with leave to either party to take a writ of error from the decision of the court."

The court below dismissed the exceptions in all the cases, and directed that judgment be entered on the awards in the respective cases, according to the report of the arbitrators.  Judgment affirmed.

Originally heard in the Court of Common Pleas of Allegheny County.

In its decision, the Supreme Court cited Washburn v. Russel, 1 Pa. 499, which makes specific reference to "a tract of land in Clarion county, on the waters of the Clarion river, situate on the east side of the river."

Certiorari to the District Court of Allegheny county.

This was a bill in equity filed March 13th 1860, by Nimick & Co. against Shriver & Dilworth, in which complainants averred, that in November 1857, John L. Miller executed his bond to plaintiffs and defendants jointly, conditioned for payment to plaintiffs of $19,000, and to defendants of $5600.  That on said bond, judgment was had in Clarion County, and execution issued, under which Miller's personal property at Catfish and Franklin Furnaces in that county, consisting of pig metal, material for manufacturing iron, horses, wagons, mules, merchandise, &c., was levied on and sold to defendants; that on the 25th November 1857, [an] agreement was made between them.

Appeal dismissed at the costs of the appellants.

The parties to this controversy were joint creditors of John L. Miller, of Clarion county, and had a judgment against him for the sum of $24,600; the undisputed proportions of which were $19,000 to the plaintiffs below, and $5600 to the defendants.  On the sale of the personal effects of Miller, on this judgment, Shriver & Dilworth bid them in, and the plaintiffs paid their proportion of the purchase-money of the sheriff's sale, by receipting the execution for that sum; the balance was receipted by the defendants, and the costs were afterwards paid by them, and the amount charged against the furnace, which was, by the agreement between the parties of the 24th November 1857, to be run for their joint benefit, until the "stock and material" purchased at the sheriff's sale were worked up.  Shriver & Dilworth proceeded to run the [Catfish] furnace in pursuance of the agreement, and delivered all the metal, both that which was purchased at the sale, and that made afterwards, to the plaintiffs, in the proportion agreed upon, according to the terms of the articles of agreement, and there is no dispute about this.

Originally heard before Campbell in the Court of Common Pleas of Clarion County.

This was an issue, directed by the court below, to try the validity of a judgment which had been entered in the Common Pleas against John Trainer, in favour of James Dickey, for the use of John W. Turney, under the following circumstances:--

George Means was the administrator of the estate of Archibald Dickey, deceased, and John Trainer and Samuel R. Travis were administrators of the estate of Michael Trainer, deceased.  Dickey, in his lifetime, held notes against Michael Trainer, and notes signed by Michael Trainer, John Trainer, and Graham
Trainer -- on which payments were made by the administrators of Trainer.  On the 21st day of July, A. D. 1856, a settlement was made by George Means, the administrator of Dickey, and John Trainer, one of the administrators of Michael Trainer, at which there was found to be due the estate of Dickey the sum of $431, for which John Trainer gave a writing.

The court below instructed the jury that on the face of the paper John Trainer was not personally liable, but that he was liable as administrator of Michael Trainer's estate, which was the main error assigned by the plaintiff.  Judgment affirmed.

Originally heard in the Oyer and Terminer of Clarion County.

Joseph Walters, Philip Walters, and Philip Huling, the plaintiffs in error, were jointly indicted with Joseph Snyder, Joseph Harman, and George Fulmer, for the murder of Martin Keleher, on the evening of the 2d day of September 1862.  Harman and Fulmer were tried along with the plaintiffs in error, but were acquitted by the jury.  Snyder elected to have a separate trial, and his case was continued to February Term 1863.  The indictment contained three counts.  The first two were for murder, and the third for voluntary manslaughter.

The court, in their general charge, instructed the jury as follows:--

"If, however, the design of the serenaders was merely to go there with bells and guns for the purpose of making a noise, and with no intention of injuring persons or property, and for that purpose alone marched into the yard and up to the porch, and one of their number asked to see the bride and groom, and without design got into an altercation with the inmates or guests of the house that resulted in a fight, and in a general melee one of their number struck the deceased so that he died, all assisting or taking part in the serenade, would be guilty of manslaughter.

"But it is contended that even if the homicide was committed by Thomas Keleher by an accident, still the defendants are guilty of manslaughter.  This question is not free from difficulty, but we instruct you that if these defendants and others combined with them, intended to enter that house in a riotous manner, and that if they had commenced an attack, and were forcing their way into it, and that Thomas Keleher was fighting in defence of himself and the house, and while so engaged in repulsing the assault of the rioters, accidentally struck his brother so that he died, all the assailants, their aiders and abettors, would be guilty of involuntary manslaughter."

Under these instructions the defendants were found guilty of involuntary manslaughter, and sentenced to three months' imprisonment, a fine of one dollar each, and the costs of prosecution.

This writ was then sued out by defendants, for whom, the answers given by the court below to the points propounded as above stated, the instructions given as above in the general charge, and the permitting a verdict to be found against defendants for involuntary manslaughter, on an indictment charging only murder and voluntary manslaughter, were assigned for error.

Now, to wit:  January 26th 1863, after argument and consideration by the court, the sentence of the Court of Oyer and Terminer of Clarion County is reversed, and the prisoners, viz., Joseph Walters, Philip Walters, and John Huling, are discharged from confinement in the same.

Originally heard in the Court of Common Pleas of Forest County.

In the court below this was an action of replevin brought by Fleming, the defendant in error, against Brewer, Williams, Black and Frasier, the plaintiffs in error, to recover 10,000 feet of timber which had been cut by the defendants, on land claimed by the plaintiff to be his.  The timber was replevied, and 4000 feet of it were taken away by the plaintiff.  A claim property bond was given by the defendants, and the remainder was delivered to them.

The plaintiff claimed under another title.  This land was sold for taxes in 1858, bought by the county, and deed made therefor, dated September 10th 1858.  It was acknowledged June 14th 1861, by the treasurer, who made it, but whose term of office had expired in January 1860.  The commissioners conveyed to one Clark, June 22d 1863; Clark conveyed to F. B. Guthrie August 1863, and in March 1864, a few days before the replevin issued, Guthrie made a bill of sale of the timber to the plaintiff.

The case was tried at a special court before Hon. S. P. Johnson, President of Sixth District.

A verdict for $846 was rendered for the plaintiff, on which judgment was entered, and a writ of error taken by the defendants.  Judgment affirmed.

On July 29th 1854, Lane & Mylert held the legal title to a tract of land in Clarion County, and on that day sold it by articles of agreement to one Clover, who paid $500 hand-money.  May 12th 1855, Clover, without having paid any more of the purchase-money, assigned his article to Fleming the plaintiff.  After this, Bredin & Campbell became the owners of Lane & Mylert's legal title.  On January 27th 1862, Fleming, by his attorney in fact J. W. Guthrie, sold and conveyed his title to the land to Brewer, Williams and Black, defendants, and by the instrument of conveyance authorized Bredin & Campbell to execute a deed to them "by paying the balance of the purchase-money, which is $3550," &c.

On the same day Fleming, by his same attorney, receipted to Williams, Black & Co. for $2550 on account of the purchase-money of above land, "they to have 60 days from this date to examine said lands, and if at the expiration of that time, they do not pay the balance of the purchase-money to James Campbell and James Bredin, and also a balance to J. M. Fleming, equal to $8 per acre in all, the said J. M. Fleming, by his attorney in fact J. W. Guthrie, agrees to pay back to the said Williams, Black & Co., $2550 with interest within four months from this date, and on failure to do so this agreement to be null and void, and of no effect."

Originally heard in the Court of Common Pleas of Forest County.

Mellon, to the use of Duff, having recovered a judgment in Clarion County against Guthrie and McFadden's executors in Clarion County, transferred it to Jefferson County, and -- after the erection of Forest county out of a part of Jefferson county -- entered in Forest county a transcript from Jefferson, and proceeded upon it, in Forest county, by sci. fa., obtaining a judgment by default, under which the land of the defendants in Forest County was sold by the sheriff.

The defendants entered a rule to show cause why the judgment by default, and the original judgment in Forest county, on which it was founded, should not be stricken off, as being an exemplification of an exemplification.

The rule was made absolute by the court below, which was the error assigned.  Judgment affirmed.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of ejectment for two tracts of land, commenced August 8th 1863, and on the same day the defendant confessed judgment for the land described in the writ, to be released on the payment of $135.76, to wit:  $90 on the first day of June 1864, with interest, and the remaining $45.76 on the first day of June 1865, with interest, costs of suits, &c.

On the 11th of February 1865, on motion of plaintiff's counsel, an habere facias was ordered to issue.

The order of the court awarding an habere facias possessionem is reversed with costs, and the record is remitted.

Originally heard in the Court of Common Pleas of Armstrong County.

This was an action of assumpsit, commenced January 16th 1866, by David Stewart against J. B. Finlay.  The declaration was on the common counts, and there was filed with it a bill of particulars for one-half of certain advances, alleged to have been made by the plaintiff on the joint account of himself and the defendant.

The verdict was for the plaintiff for $5906.47, and the defendant removed the case to the Supreme Court.  Judgment affirmed.

Originally heard in the Court of Common Pleas of Indiana County.

On the 22d of May 1865, Charles Gompers, James G. McQuaide and F. M. Kinter, for the use of James G. McQuaide and Charles Gompers, brought an action of covenant against John C. Rochester.

The covenant on which the breaches were assigned was in an agreement dated July 18th 1863, by which Rochester agreed to sell to Gompers, McQuaide and Kinter, for $ 2500, his lot and storehouse in Marion, Indiana County, and also all his stock of goods in the store.

It was alleged by the plaintiff, and they gave evidence, that John C. Rochester was the owner of the store kept in the name of his son. The jury found that this was not so.  Judgment affirmed.

Originally heard in the Court of Common Pleas of Armstrong County.

This was an action on the case, brought January 30th 1862, by John A. Humphreys against the county of Armstrong, to recover damages for injuries received by him in consequence of the falling of a bridge whilst he was crossing it.

The bridge was a county bridge, erected at Rockport Mill, over Red Bank creek, a stream which is there the dividing line between Armstrong and Clarion counties.  The bridge had been built at private expense in 1850, but by Act of Assembly of April 11th 1859, it was declared a county bridge, to "be governed by the laws relating to bridges on county lines."

There was evidence that the plaintiff knew the condition of the bridge, also that he advised others to cross it, and that wagons had passed over it safely on the day on which it fell.

There was evidence also that both the supervisors of the township had examined the bridge, and found the wood of the large braces rotten, and, considering it unsafe, closed it up twice, but it did not remain closed, because there was no other way of getting over.  In September 1860 the commissioners of Armstrong county were notified that the bridge was unsafe and needed repairs.  They examined it, found the braces and sills decayed, and "came to the conclusion that by tightening the nuts, and putting on some new plank, it would do till spring, as they were scarce of funds." They made a contract for putting on plank, limiting the expense to $30 or $40, but they did not think that such repairs would strengthen the sills.  The bridge was thus repaired, and the public travelled over it.  Judgment reversed, and a venire de novo awarded.

On the 10th of November 1860, the plaintiff, with two other men, were slowly driving over the bridge in a wagon drawn by two horses, when the span on which they were went down. The whole floated down the stream about a mile and a half, when they were caught on a rock and were landed. The plaintiff was severely injured, his scull having been fractured.

The bridge had been built about ten years, and had been a county bridge one year and seven months when it fell.  On the 10th November 1860, about three o'clock in the afternoon, whilst the plaintiff and two other men in a wagon, with a grist of ten bushels of buckwheat, were crossing the bridge at a slow walk, it broke down and the whole span went down, the Armstrong end of the bridge going down first.  All floated down the creek together, and landed about one and a half miles down, caught on a rock, scattered the bridge, and the horses went out on the Armstrong side.  The defendant got his wound on the falling of the bridge.  His frontal bone was fractured, and he was trepanned.  He was very ill for several months, and the injury left him deaf of one ear, and when his physician attended him he thought he would never be able to attend to business.

There was evidence that in the spring of 1860 the bridge was in so bad a condition that the constable of the township reported it to the court; that it was shut up afterwards for a while, and then opened.

The repairs directed by the commissioners were made, and after it was repaired every person travelled on it, and it was generally used by the public, and Amos McMillan, one of the persons in the plaintiff's wagon, had crossed the bridge the morning of the accident.

The bill was by William Getty and others against Samuel Wilson, Thomas Baker and others, amongst whom was The Philadelphia National Bank.

The cross-bill was by Samuel Wilson, Thomas Baker and others, who (except The hiladelphia Bank) were defendants in the bill, against William Getty and others, plaintiffs in the bill, and The Philadelphia National Bank.

By agreement, Thomas Robins was afterwards substituted in each case in the place of the Bank.

Both parties appealed.  Decree affirmed at the costs of the appellants.

Originally heard in the Court of Common Pleas of Clarion County.

James T. Burns was treasurer of the county of Clarion for the year 1861.

County auditors charged a treasurer with tax lost by a defaulting collector; the treasurer did not appeal and paid the money.  An Act of Assembly required the auditors to open the settlement "and resettle and equitably adjust the same."  Both the auditors, and the court on appeal, were bound to act upon the equities of the treasurer as intended by the act, and not on strict legal principles.

"And now, to wit, January 4th 1865.  In pursuance with an Act of General Assembly, passed the 8th day of April, Anno Domini 1864, entitled 'An act for the relief of James T. Burns, Esq., former treasurer of Clarion county.'  We, the undersigned auditors of Clarion county, proceeded to open the accounts of the said Burns with the county of Clarion for the years 1860 and 1861, and having duly considered and heard Mr. Burns's statement, have concluded not to make any alterations in said account, and hereby leave the report the same as made by former auditors."

The county commissioners on the same day approved the report; and Burns appealed from the report on the 11th of February 1865.  On the appeal the court ordered an issue in which the county of Clarion was plaintiff, and Burns defendant, the auditor's report to stand for a declaration, and the defendant "under the plea of payment to give all matters in defence in evidence or matter entitling him to a balance in his favor."

Judgment reversed, and venire facias de novo awarded.

On the 6th of May 1861, W. W. McClelland was appointed constable of Porter Township, and entered into bond in the sum of $500 with Elisha McClelland and Jarius Thompson as his sureties, the amount of the bond and the sureties having been approved by the court.  The amount of the duplicate of Porter township delivered to Burns was $1889.99; having collected some part of it, he put a warrant and schedule of the balance into the hands of McClelland, the constable, on the 2d of September 1861.  McClelland accounted to Burns by payments and exonerations for this balance except $651.69.  On the settlement of Burns's accounts by the auditors in January 1862, a balance of $9881.84 including the $651.69 of the Porter township duplicate was reported to be in his hands.  He paid the whole amount to his successor in office.

On the trial before Campbell, the plaintiff gave in evidence the report of the auditors in 1862, that the defendant did not then claim any credit on account of the Porter Township duplicate, and that he paid the whole balance to his successor; that when he paid it he said part was his own money; at one time he paid about $500, saying that he paid it because he wanted to get rid of the debt; that the money was in the hands of McClelland and some others at that time.

Burns gave evidence of the amount of duplicate which went into McClelland's hands; he also gave evidence tending to show the insolvency of McClelland and his sureties.  The plaintiff in rebuttal gave evidence that no suit had been brought against McClelland or his sureties.

Originally heard in the District Court of Allegheny County.

This was a feigned issue, under the Sheriff's Interpleader Act, in which Samuel Duff was claimant and plaintiff and R. W. Pier defendant. The issue was formed August 9th 1862.

Pier, the defendant, having recovered a judgment against one John Lyon, issued an execution against him, under which the sheriff, on the 24th of July 1862, levied on three rafts of lumber lying in the Allegheny river.  Duff claimed that the lumber belonged to him, under a sale from Lyon.

Lyon, the defendant in the execution, was the owner of timber land in Clarion county, on which he had a saw-mill; he testified that the lumber was cut from his land, and
sawed at his mill in partnership, as to the sawing, between himself and his son-in-law, Jacob Mong.  The boards were Duff's (the claimant) as soon as they were sawed, in payment to Duff for money and provisions furnished by him to witness, to enable him to carry on his business: the amount of his indebtedness to Duff was about $1200.  The lumber was given into the possession of Mong, who ran it to Pittsburg, where witness gave possession to Duff, whose name he marked on it at his request:  this was done before the levy. Mong left witness in charge of his interest in the lumber. Witness had delivered the lumber to Duff in Clarion county at a place designated by Duff.  The lumber was rafted to Pittsburg by Lyon and Mong, "dropped down to Heath, Duff & Co.'s mill" in Pittsburg:  witness took charge of it exclusively as Mong's agent:  witness sold some of the lumber as the property of Duff & Mong, and paid the proceeds to them.

Judgment affirmed.

Lyon and Mong owned lumber in partnership. Lyon sold his interest to Duff, and the lumber was marked "Duff & Mong." Lyon, as the agent of Mong, continued to take charge of his interest in the lumber. It was no error to leave to the jury the question of Duff's exclusive possession. Duff could not have excluded Mong or his agent from the concurrent possession of the lumber. After the sale, Duff moved the lumber, marked as his and Mong's, to his own mill. He thus gave all the notice of his title to an individual half that could be reasonably required.

F. K. Duff, a son of claimant, testified:  The rafts were first landed above the mill, and possession delivered to him as agent of the claimant; the lumber was marked "Duff &
Mong;" the delivery was ten days before the levy, but the lumber was not at the claimant's landing during all that time; witness put cables on them.  The claimant gave evidence also that the lumber was put on his books to the credit of Lyon.

The defendant gave evidence for the purpose of showing that the lumber was in the possession of Lyon at the time of the levy.

He also proposed to prove by witnesses whom he called, "that from the time John Lyon brought the lumber in controversy to Pittsburg, up to the date of the levy, and afterwards, while in custody and care of the lumber, he declared, repeatedly, that it belonged to him."  "What declarations, if any, John Lyon made, from the time he brought the lumber there, on the 27th of June, up to the time he left, as to the ownership of this lumber."  "The declarations of John Lyon, made from the time he brought the lumber to Pittsburg, up to the time of the levy, and afterwards, and while he was in custody and charge of the lumber, as to his ownership of it, and this for the purpose of rebutting the testimony of John Lyon as to the capacity he acted in, while here in charge of the lumber."

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of assumpsit by The County of Armstrong against The County of Clarion, commenced October 30th 1869, for contribution under the following
circumstances: --

At Rockport Mills there is a public bridge over Red Bank creek which is the dividing line between Armstrong county and Clarion county, the bridge is consequently to be maintained at the joint expense of the two counties.  In 1860 the commissioners of both counties received notice that the bridge was out of repair; they made a joint examination of it, and directed some slight repairs which were done at the joint expense of the two counties.  Not long afterwards the bridge broke down whilst John A. Humphrey was crossing with a two-horse wagon and severely injured him.  To March Term 1862, he brought an action for negligence against the county of Armstrong.  The commissioners of that county gave notice of the bringing of the suit to the commissioners of Clarion, and called on them to assist in its defence, which was not done.  A verdict was recovered December 16th 1868 against Armstrong for $1100, which, with the costs amounting in all to $1597.31, Armstrong County paid.  The commissioners of Clarion were called on to contribute their proportion to this payment, which they declined to do.

Judgment reversed, and venire de novo awarded.

Originally heard in the Court of Common Pleas of Clarion County.

William Gardner and Ellen his wife in her right, brought an action of replevin May 22d 1867, against John Musser, for one mare, one horse, one cow, one wagon and one set of harness, of the value of $300.  The defendant pleaded "property."  The allegation was that the property, which had been sold by the husband to the defendant, belonged to the wife.

On the trial, December 9th 1869, the plaintiff, without proof or affidavit, was allowed to amend by striking the husband's name from the
record, and a bill of exceptions was sealed.

The court, also under exception, admitted a decree of September 7th 1867, making the plaintiff a feme sole trader.  The evidence was admitted against the defendant's objection and a bill of exceptions sealed.  There was evidence that the wagon was bought by Gardner and paid for by wood cut on the plaintiff's place; that Gardner brought nothing when he was married; that the plaintiff owned what was on the place.

The plaintiff offered to testify, she was objected to, admitted and a bill of exceptions sealed.

The verdict was for the plaintiff [Gardner] for $102.95.  Judgment affirmed.

She testified that Gardner owned nothing when she married him; she owned the stock on the farm when he came there; also that some was raised on her farm, and by various changes and trades (some by Gardner), the property replevied was hers; she also testified as to his desertion of her. There was evidence also that a warrant
had been out to arrest Gardner, and that he could not be found.

She gave in evidence a deed, dated March 28th 1842, to her by her unmarried name, Ellen Patton, for 115 acres of land.  She had married Gardner sixteen or seventeen years previously; then owned a cow and calf and money at interest, eight or ten sheep and household furniture; when any one sued Gardner he said he did not own anything.  She proved the purchase by defendant from Gardner of the articles replevied and that the plaintiff claimed them as his.  Gardner was not then living with his wife.  The plaintiff offered to prove declarations of Gardner that the property belonged to his wife.

Originally heard in the Court of Common Pleas of Clinton County.

This was an action of assumpsit, on a promissory note, brought February 9th 1870, by A. A. Stewart against E. W. Bigoney.  The single question raised by the assignments of error was the admission of the deposition of J. B. Williams, taken on the part of the plaintiff.

On the 13th of July 1870, the plaintiff entered an ex parte rule to take depositions on ten days' notice.  He afterwards gave the following notice: --

"To Jesse Merrill, Esq., attorney for defendant.
"Take notice, that in pursuance of a rule of court, of which the above is a copy, the deposition of A. A. Stewart et al., witnesses, to be read in evidence on the trial of said cause, will be taken between the hours of 8 o'clock a. m. and 11 o'clock p. m., on Wednesday, the 3d day of August, A. D. 1870, at the office of Theo. S. Wilson, in the borough of Clarion, Clarion county, in the state of Pennsylvania, before the said Theo. S. Wilson, Esq., or some other person competent to take the same at the said time and place."

Judgment affirmed.

On the trial, before P. J. Mayer, the plaintiff offered in evidence the following, viz.: --

"Depositions of witnesses produced, sworn, or affirmed and examined by me, the 3d day of August, A. D. 1870, at the office of Theo. S. Wilson, at Clarion, between the hours of 8 o'clock a. m. and 11 p. m., by virtue of the annexed rule," &c. * * *

"A. A. Stewart sworn, deposeth and saith," &c. * * *

"J. B. Williams sworn, deposeth and saith," &c. * * *

"I hereby certify that the above witnesses were duly qualified and examined at the time and place stated in the above caption, and subscribed their depositions in my presence, and that the examination of said witnesses was closed by me at 8 1/2 o'clock p. m. of said day, and up to that time there was no one appeared as attorney for defendant to cross-examine the witnesses, at which time the witnesses and myself retired from the place of examination, and I did not go back that night.
"In testimony, &c.
"Frank M. Arnold, J. P."

Originally heard in the Court of Common Pleas of Clarion County.

This was an ejectment commenced August 9th 1866, by Philip Cook against John Cook and George N. Berlin, for 108 acres of land.  The case was tried August 24th 1870.

The plaintiff's title was as follows:  John Cook, his brother, one of the defendants, by article dated the 1st of August 1837, contracted with the agents of the Bingham estate for the land in dispute for the consideration of $162.75.  The article was renewed by another dated November 1st 1849, for the consideration of $282.37, the debt and interest due on the original article.  An execution for $103 was issued against John Cook on the 20th of December 1852, and his land extended at $50 per annum, and accepted by John Cook; on failure to pay the rent, the land was sold under a venditioni, to Philip Cook for $375, and the sheriff's deed acknowledged December 8th 1854.  On the 10th of February 1865, John Cook receipted to the sheriff for $131.93, the surplus from the sale after payment of debt and costs.  On the 10th of June 1863, Philip Cook paid Judge Campbell, representing the Bingham estate, $170.98 on John Cook's article.  George N. Berlin, the other defendant, paid $390.93 to Judge Campbell, that being the whole amount then due on John Cook's article, and a deed was delivered to Berlin, March 3d 1866, "subject to the equity of John Cook, Jr., and his vendee Philip Cook, as specified in the article of John Cook, Jr., with the Bingham estate."  Before bringing suit, Philip Cook tendered to Berlin $400 in payment of the amount due on the contract.

The defendant, John Cook, alleged that Philip had bought in the property at sheriff's sale for him. He testified that when the land was about to be sold by the sheriff, he asked Philip to buy in the property for him, and Philip agreed to do so; a number of persons were at the sheriff's sale.  John Zents was bidding and John Cook told him his arrangement with Philip; John and Zents went to Philip, who told Zents he was buying for John, Zents then said he would not interfere when one brother was buying for another; the land was struck down to Philip for $376; John testified that he did work for Philip, which he agreed should go towards paying for the land; also, that he paid Philip several sums of money on the same account, and that Philip was otherwise indebted to him.  Philip gave John his note for the surplus at the sheriff's sale.  John cleared after the sale about 21 acres, enlarged the house and built a barn.  Philip never claimed the property till the suit was brought.  Zents testified that he went to the sale intending to buy the property if he could have got it for $700 with a clear title; it was then worth $1000 or $1200.  He was informed substantially as stated by John Cook, the arrangement between John and Philip, and he did not bid any more.

C. E. Beaman was a bidder at the sale, but stopped on learning that Philip was bidding for John.  William Ray testified in the same manner.  There was evidence that after the sale Philip said the property was John's.

What was the agreement between the parties?  This is a question for the jury.  If Philip Cook is believed, he did make the purchase under a promise to let John remain upon the land for some time.  He has let him live upon it since 1854.

Judgment reversed, and venire de novo awarded.

John Cook entered upon the premises in controversy under an article of agreement with the trustees of the Bingham estate, dated the 1st of August 1837, and on the 1st of November 1849, by an article of agreement in writing from the said trustees, which was a renewal of the former one, purchased the same for the consideration of $282.37.  He cleared land, made valuable improvements, and with his family resided thereon at the commencement of this suit, on the 9th August 1866.

On the 7th August 1852, a judgment was obtained against John Cook for $103, on which an alias fi. fa. was issued, and levied upon this real estate, extended at a
rent of $50 per annum, and accepted by John Cook, and upon his failure to pay, a vend. exponas was issued upon which this land was about to be sold.  John sent for
his brother, Philip Cook, to come over and buy the property in for John Cook at the sheriff's sale, which he did for $375; the surplus money, after paying debt and costs, John receipted for to the sheriff, but did not receive it.  From the 1st December 1854 to 9th August 1866, John Cook remained in undisturbed possession of the land, paid the taxes, cleared land, built a barn, and cut timber thereon, which he had manufactured into lumber on the mill of Philip Cook, the plaintiff.

On the trial of the cause John Cook testified:   "My property was up for sale on that judgment; I had some money, but not enough to pay the debt; I asked Philip to come over and buy the property for me; I wanted him to furnish a part of the money for a time, until I would get my money from Bethlehem; he agreed to come over and buy the property.  He came; he was here two or three days; Zents was a bidder; William Ray came up to myself and Philip, and asked if the property had to be sold; Philip told Ray that he was buying the property in for me; Zents was bidding, and I went and told him my arrangement with Philip; he said if that was the case he would not bid on it.  We went to Philip, and Zents asked him; Philip told him he was buying it in for me; then Zents said he would not interfere where one brother was buying for another.  The property was knocked down to Philip for $375."  Zentz, Beaman, Ray, and Dunkle all agree as to these facts, and if these witnesses, counting John Cook, are believed, then John Cook's story is true, and fixes Philip with a trust for John.

Philip Cook, on 10th June 1863, paid the trustees of the Bingham estate $170.38 on the John Cook, Jr., article, and on the 19th February 1866 George N. Berlin paid $390.93, the balance in full of the John Cook article, and received a deed, "subject to the equity of John Cook, Jr., and his vendee, Philip Cook, as specified in the article of John Cook, Jr., with the Bingham estate."

Originally heard in the Court of Common Pleas of Clarion County.

In the distribution of the proceeds of the sheriff's sale of the personal property of John P. Cook.

The records of the Court of Common Pleas of Clarion County and the endorsements on the writs of execution showed that judgments had been entered against John P. Cook and executions issued on them as follows: --

John R. Kron, $298.98.  Entered May 8th 1871.  Execution placed in sheriff's hands same day at 6 1/2 o'clock, a. m.
John R. Kron, $298.28.  Entered May 8th 1871.  Execution placed in sheriff's hands same day at 8 o'clock, a. m.
Charles Kauffman.  Entered March 27th 1871.  Placed in sheriff's hands May 8th 1871, at 8 3/4 o'clock, a. m.

The sheriff sold the goods, and James B. Knox, Esq., was appointed auditor, on the application of Kron, to distribute the fund arising from the sale.  The fund was not
brought into court; Kauffman did not assent to the appointment of the auditor, nor had he notice of the application.  The amount, after deducting all costs, including those of the audit, was $399.85.

Kauffman appealed to the Supreme Court and assigned for error the confirmation of the report of the auditor.

The decree is reversed at the costs of the appellee, and the record is remitted to the court below, to be proceeded in according to law.

Originally heard in the District Court of Philadelphia.

Refers to Humphreys v. Armstrong Co., 6 P.F. Smith 204, in which the county was made responsible for the acts and omissions of the commissioners in relation to an unsafe bridge which fell with the plaintiff's wagon and team.  The bridge being on the line of two counties and maintained by both, it was afterwards held that Armstrong could recover contribution from Clarion county, notwithstanding the case was one of negligence.

Duff v. Wilson
(Allegheny County District Court: No. 98, October and November Term 1872; Clarion County No. 53, October and November Term, 1870)

October 5, 1871, Argued, October 16, 1871, Decided

November 19, 1872, Argued, January 6, 1873, Decided

Originally heard in the District Court of Allegheny County.

This was an action of assumpsit, brought to April Term 1864, by Samuel Duff against Samuel Wilson.  The declaration averred that the plaintiff had leased certain property to one Smathers, that the defendant became bound for the covenants in the lease, and that the tenant had failed to pay the rent.

On the trial, February 15th 1870, the plaintiff gave in evidence articles of agreement, dated September 10th 1859, between himself and Philip Smathers, by which he agreed to lease to Smathers for five years the undivided half of certain tracts of land in Clarion county, being the same which had been sold by Smathers to the plaintiff on the 5th of September 1857, with privileges specified in the agreement: -- the consideration being the delivery by Smethers to the plaintiff of five pairs of flat-boats, two in each year from 1860 to 1864 inclusive, with other stipulations unimportant to the understanding of the case.

Attached to the agreement was the undertaking of the defendant as follows: --

"September 10th 1859.
"I hereby become bound to Samuel Duff for the faithful performance of the covenants and agreements contained in the foregoing agreement on the part of Philip Smathers in case he fails to perform the same.
Samuel Wilson."

Judgment reversed, and venire facias de novo awarded.

Originally heard in the Court of Common Pleas of Warren County.

This was an action of assumpsit, brought January 24th 1871, by Andy Daum to the use of C. L. Douglass, against the borough of Warren.

The claim of the plaintiff was for the bounty of $300, offered by the borough of Warren for veterans enlisting in the United States service in the war of the rebellion, and credited to that borough.

The cause was tried December 12th 1871.

The plaintiff gave in evidence a resolution of the borough council, passed February 11th 1864, to levy a tax sufficient to pay "a bounty not exceeding $300" to each person who should enlist to the credit of the borough of Warren."

It appears by the muster-roll that when Daum was mustered into service on the 29th February 1864, at Martinsburg, Va., he declared his residence to be "Warren, Warren county, Pennsylvania."  There is no evidence that he, at the time of his re-enlistment, said or did anything indicating an intention to enlist to help fill the quota of the defendant, or to be credited thereto.  The evidence is that he first gave notice of any such claim a short time before the commencement of this suit, which was in January, 1871.  It is true, the second section of the Act of May 1st 1866, Pamph. L. 114, provides that "the place of residence named in the re-enlistment and muster-in rolls, shall, in the absence of other evidence, be considered the place of credit."  This act, passed more than two years after his re-enlistment, throws no light upon his actual intention at the time of said re-enlistment.  If the transaction, at the time, lacked the ingredients essentially necessary to create the contract relation, this subsequent Act of
Assembly could not create one which would be obligatory upon the parties.

The verdict was for the plaintiff for $440.15.  Judgment reversed.

Certified copy of muster and descriptive roll of re-enlistments from the Adjutant General's Office at Harrisburg, viz.:

"Muster-in, bounty, advance-pay, and descriptive roll of a detachment of United States veteran volunteers, re-enlisted by Captain Nathaniel Payne, company "K," for the 12th Regiment of Pennsylvania cavalry volunteers, stationed at Martinsburg, Va., re-enlisted pursuant to general order 191, &c.

"Name, Andy Daum, rank, private, born Clarion county, Pennsylvania, age 21 years, occupation farmer, enlisted February 29th 1864, at Martinsburg, Va., by Captain George W. Henrie for three years, * * * mustered into service February 29th 1864, at Martinsburg, Va. * * *

"Date of first muster March 1st 1862. Residence, Warren, Warren county, Pennsylvania, Nineteenth district of Pennsylvania.

"Re-mustered as veteran volunteers under general orders 191, &c."

D. Titus testified: "I was major of the 12th cavalry during the rebellion, and commanded the regiment.  In February 1864, I wrote to Judge Annett, burgess of Warren, asking whether the borough was paying bounties; the judge informed me the borough was paying $300 bounty; there was a strife for volunteers for various localities; I wanted the Warren borough men to be credited to the borough; I encouraged our men to enlist; bounties were to be paid in bonds; the fact that the borough was paying bounties was communicated to all the men; my son also worked with the soldiers for same purpose; I don't recollect talking with Daum particularly; he once lived in Warren; he was in company K; the soldiers in that company were mostly from Warren county."

For the defendant, the clerk of the borough council in 1864, testified that he had the whole charge of the enlistment matters of the councils; the evidence of enlistment and re-enlistment was furnished him; he never had any evidence of Daum's enlistment for the benefit of the borough; the quota was filled without him; he was never credited to the borough to the knowledge of witness; no personal application was ever made by Daum; witness had receipts from the provost marshal for all credits for the borough; no credit for a man named Daum.

Originally heard in the Court of Common Pleas of Allegheny County.

This was an action on the case, brought May 26th 1869, by James Watterson against The Allegheny Valley Railroad Company.

The plaintiff, by his declaration, averred that the defendants, in consideration of his granting and conveying to them a right of way for a double railroad track over his land, for the nominal consideration of one dollar, promised him that they would locate on his land a railroad station and depot for freight and passengers, and thereby promote the business at the place, the plaintiff being a forwarder and warehouseman there; that the defendants also promised him that they would remove the blacksmith shop, warehouse and buildings of the plaintiff, and erect the same at other convenient places on his land, and build a stone wall on his land along the line of the railroad, for the safety and preservation of his land and premises.  Plaintiff further averred that, relying on these promises, "he did, for the consideration aforesaid," make to the defendants a grant of the right of way, "expressing in the deed the nominal consideration of one dollar, which was never in fact paid;..."

Judgment reversed, and a venire facias de novo awarded.

Mary A. Watterson, wife of plaintiff, testified:  "Recollect Col. Philips and Mr. McCullough coming to our house about the right of way.  Recollect signing the deed for the depot lot.  They were there three times, I think.  Their first errand was the right of way.  The second time they came they proposed to buy the acre of ground for a freight and passenger depot, and what an advantage it would be to our property -- that it would double it.  Col. Phillips and Mr. McCuilough came the day we signed the deed.  They sent for me to come and sign the paper.  I was not willing to do it unless Col. Phillips would give it 'in writing' all that he intended and promised to do.  Mr. Phillips said the property would be worth double.  I said I could not see it.  I said, how would it be if our living was taken away from us?  We were then getting our living by store and freight.

[The report contains more of her testimony and that of others, but not enough personal detail to warrant including it here.]

Originally heard in the Court of Common Pleas of Forest County.

This was an action of ejectment, brought May 17th 1866, by Samuel Duff against L. C. Wynkoop, James W. Guthrie, Milton Wynkoop and W. S. Wynkoop, for six hundred acres of land, known as the "Nelson Strong" tract.  John Heath was afterwards admitted as a co-defendant.  The case was tried September 27th 1870.

The plaintiff gave in evidence a judgment, Thomas Mellon, for the use of Samuel Duff, against James W. Guthrie and Jacob McFadden, entered in the Court of Common Pleas of Forest county, to December Term 1861; debt, $3953.42.  Scire facias to same term returned "nihil;" alias scire facias to February Term 1862 returned "nihil."  Judgment May 26th 1862, liquidated at $5248.16.  Fi. fa. to September Term 1862; levy on two tracts of real estate -- one of four hundred acres, in Millstone township, in the name of Nelson Strong.  Vend. ex. to December Term 1862; "stayed."  Alias vend. ex. to February Term 1863; "stayed."  Pluries vend. ex. to May Term 1863; sold to Samuel Duff for $375.  Deed, William Fox, sheriff, to Samuel Duff, for four hundred acres, being the Strong tract, dated May 26th 1863, and acknowledged in open court on the same day.

The Mellon judgment had been originally entered in Clarion county and certified to Jefferson county; Forest county was separated from Jefferson for judicial purposes in September 1857, and the judgment was entered in Forest county by a transcript from Jefferson county.  After the above-stated proceedings under it, the Court of Common Pleas of Forest county struck off both the judgment on the scire facias and the original entry in that county on the Jefferson county transcript.

The plaintiff gave evidence of sale for taxes of tract of six hundred and fifty acres, in Millstone township, in the name of Nelson Strong, to Elizabeth Wynkoop.  Deed to her from the treasurer of Forest county, dated October 27th 1862; acknowledged December 23d 1862; assignment, August 13th 1864, endorsed on treasurer's deed, Elizabeth Wynkoop to Samuel Duff; acknowledged the same day.  He also gave in evidence affidavits of J. W. Guthrie to open the Mellon judgment, to show that he claimed a portion of the proceeds of the sheriff's sale.

Judgment reversed, and a venire facias de novo awarded.

Originally heard in the Court of Common Pleas of Clarion County in Equity.

The proceedings in this case were commenced February 12th 1872, by bill filed by Barney Vensel, assignee of Susan Vensel, widow of Jacob Vensel, deceased, against Lewis Colner.

Under various proceedings in the Orphans' Court, the defendant had become the owner of real estate of which Jacob Vensel had died seised: his widow assigned to the plaintiff all her rights as widow in the rents and profits of the land; this bill was brought against the defendant for an account.

On the 8th of February 1853, the court appointed D. B. Hamm, sheriff, trustee to sell the property.

The record does not show any other action with reference to the rule upon heirs, except as is found in the recitals of subsequent proceedings.

An order of sale was issued to Hamm on the 23d of February 1853.

It recited the return of the inquest; that the court "having confirmed the same and none of the representatives having appeared to take" the real estate at the valuation, "the court granted a rule on all the heirs and legal representatives of the said Jacob Vensel, deceased, requiring them to appear at the then next Orphans Court, &c., to accept and refuse the same at the valuation, and to show cause, if any they have, why the said real estate should not be sold.  At which time due proof being made of the service of said rule according to the Act of Assembly, as appears by the return of the sheriff, and none of the heirs appearing to take the said (land), &c., at said valuation, it was considered by the court that they had relinquished their respective rights to take the same, and therefore at the instance of Jane Fink, one of the heirs," &c., the court ordered Hamm to sell.

The sheriff returned to the order of sale: "April 30th 1853, cried the within property and sold the same to John Vensel for $700.

The sale was confirmed May 7th 1853, and on the same day a deed was executed and delivered by the trustee to John Vensel the purchaser.  It recited at large the petition for an inquest; the return of the inquest appraising the land at $1000, the confirmation of the inquisition; the rule upon the heirs and its service; also that none of the heirs appearing to accept or refuse, "it was considered by the court that they had relinquished their respective rights to take the same;" it recited also the order of sale to the
trustee.  No reference was made in the deed to any interest of the widow, nor did the record show that her interest was in any way secured, or that she had notice of the proceedings after the inquisition.

The claim of the plaintiff was for one-third of the rents and profits of all kinds, including the receipts from the oil and coal leases, during the life of the widow of Jacob Vensel.

The defendant's defence, amongst other things was, that under the proceedings in partition, &c., in the Orphans' Court, the widow's dower was fixed by law, and that she was concluded by the inquisition and appraisement and approval of the proceedings by the court and these proceedings could not be inquired into collaterally.

The master reported as his opinion, that the widow was entitled to notice of the rule on heirs in order to divest her interest under the intestate laws, and that although not entitled to take the land at the appraisement, she was a party in interest and should have been named in the petition, decree and notices. He therefore held that the Orphans' Court had no jurisdiction over her interest and the proceedings in partition did not affect that interest.  He stated an account finding that there was due from the defendant to the plaintiff the sum of $9000.69.

The defendant filed exceptions to the master's report.  After argument the court overruled the master's finding and dismissed the bill.  The plaintiff appealed to the Supreme Court and assigned for error, the decree dismissing the bill.

Decree of the Orphans' Court affirmed, with costs to be paid by the appellant, and the appeal dismissed.

Plumer v. Guthrie
(No. 14, October and November Term, 1873)

Originally heard in the Court of Common Pleas of Clarion County.

This was an ejectment brought January 28th 1870 by Margaret Plumer against James W. Guthrie for three tracts of land, and a large number of town-lots.  The case was tried August 28th 1872.

The land had belonged to the defendant and on the 25th of July 1849, he executed a mortgage on the whole of it to the trustees of the estate of William Bingham, deceased, to secure the payment of $16,500.  A scire facias was issued on this mortgage by Samuel M. Lane and others, trustees and assignees of the estate of William Bingham, deceased, in which judgment was confessed by the defendant, September 4th 1846, for $22,959.77.  Under a pluries levari facias on this judgment, the land was sold by the sheriff to Samuel M. Lane and A. N. Meylert for $10,106, and the sheriff's deed to them acknowledged September 10th 1857.  Through a number of mesne conveyances the whole property became vested in Samuel M. Lane, February 23d 1859.

On the 14th of May 1859, Lane and wife by indenture, for the consideration of $9500, conveyed to Arnold Plumer all the real estate included in the mortgage, describing it.  In this deed it is further contained as follows:

"And the parties of the first part hereto, for the considerations aforesaid, do hereby assign, transfer and set over unto the said Arnold Plumer, without recourse to them, the judgment obtained by a scire facias on said mortgage, also a judgment in the Common Pleas of Clarion county, wherein S. M. Lane and A. N. Meylert, trustees, are plaintiffs, and J. W. Guthrie is defendant.  Being a judgment taken for the same debt for which the mortgage of J. W. Guthrie above stated was given and collateral thereto.  And the said parties of the first part do further grant, &c., unto the said Arnold Plumer, his heirs or assigns, all the interest, &c., of the parties of the first part hereto, of, in and to all the lands, tenements and hereditaments included in a certain article of agreement between S. M. Lane and A. N. Meylert, trustees, of the first part, and J. W. Guthrie of the second part, dated the 10th day of May, A. D. 1852

Witnesses and others named in testimony:
R. Allison
W. H. Lowry, son of N. A. Lowry
C. B. Curtis
C. R. Burdick
S. P. Johnson
Judge Bredin
Samuel A. Purviance

Judgment reversed, and a venire facias de novo awarded.

[This case report is full of information, only a small portion of which is transcribed here.]

Arnold Plumer died leaving a will, dated April 18th 1869, and proved May 10th 1869, by which he devised all his property real and personal to his wife Margaret Plumer the plaintiff.

The defendants gave in evidence record of a suit, trustees of the Bingham Estate against J. W. Guthrie, and judgment July 5th 1850 for defendant for $18,000, assigned November 14th 1850 to N. A. Lowry, of Jamestown, New York, assigned by Lowry to Arnold Plumer October 29th 1852, and receipt February 9th 1853 to sheriff by A. Plumer for the debt and interest $19,564.09.

Also a record of judgment J. W. Guthrie against William McKinley for $109.  Also of judgment same against same for $100, both assigned December 5th 1851 to N. A. Lowry, and by him assigned December 3d 1852 to Arnold Plumer.  Also judgment J. W. Guthrie for use of N. A. Lowry against Clarion township for $574.53, assigned December 5th 1851 to Arnold Plumer and paid to him.

F. B. Guthrie, a son of defendant, testified as to Plumer furnishing money to his father, of their joint transactions in timber, &c.; he further testified:  "Plumer resided at Franklin and did not see to the business only to take the money; my recollection is that my father sold the mill property to Burnell & Wheeler, in 1854 or 1855, think in 1855; in 1866 and 1867, I was living in Titusville and practising law there; I had an interview with Mr. Plumer at his house, but can't remember the time; it was in cold weather; it was after the death of Burnell; in January or April 1867, I had frequently urged my father to get this matter settled up; Mr. Burnell had died; I went to Mr. Plumer's house; went in and sat down; said to Mr. Plumer that I wanted that thing settled up; that my mother and brother were dead and I wanted it settled during the lifetime of my father; that I cared nothing about it myself as I could take care of myself, but that I had a sister whose interest I thought I should look after; I told him that I understood that he held the title to my father's property or a large portion of it, in him; he said that he did; I told him that my father alleged that he had paid him for all the money that he had ever advanced to run the mills and buy the lands, the title to which he had; I told him that if that was the case, that the matter should be settled up during the lifetime of both of them; that my father was getting old as well as he; that Mr. Burnell and Mr. Davis, two of the men that knew most about the matter, were dead; I asked him then about the state of the accounts between them, and he said, You know, Mr. Guthrie, that I will have to charge for my time, trouble and the risk I had to run; I said certainly; he said that he did not think there was a great deal of difference in the money or accounts, either way; he said he did not know exactly how they did stand; that he had received moneys from judgments and from notes, and had advanced money to run the mills and to buy the mills; had been talking about the old homestead at Strattanville, and the old farm that I did not like to see go away; he said, I will see that these things are fixed up before I die, and that the property should be reconveyed if my father had got out of his financial difficulties, so that he could hold it; I heard the conversation at Strattanville, 1st June 1853, at the time the money and notes were delivered to Plumer; Plumer said, You know, Mr. Guthrie, that I want to hold collaterals enough to keep me safe, and that he would advance money to Mr. Davis as he would need it."

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of assumpsit commenced May 15th 1872, by Thomas Reed against David Gilmore and others, partners as Gilmore & Sons.

According to the plaintiff's history of the case, the action was for a balance alleged by the plaintiff to be due him by the defendants on a settlement. Neither the history of the case nor the evidence contained on the paper-book show the settlement nor give the amount alleged to be due.

On the trial, February 5th 1874, the plaintiff gave in evidence a settlement of the 5th of April 1867 and items of an account for work in 1868 and 1869.

The defendants gave in evidence an account of Samuel Gilmore, one of the partners, against plaintiff beginning August 8th 1867, and ending April 4th 1868; also an account of David Gilmore beginning December 1864 and ending May 20th 1867; also an account of Robert Gilmore, one of the partners, beginning December 3d 1868 and ending April 18th 1870. There was evidence of other claims by defendants against plaintiff for cash and lumber in 1868 and 1869, of which there was no book account.

A copy of these book accounts of defendants, with affidavit as required by the rule of court, was filed by the defendants on the 20th of December 1873, with notice of the filing to the plaintiff's attorney, who argued that all individual accounts of David Gilmore, Samuel Gilmore, Robert Gilmore and Miles Gilmore, alleged to have been obtained before the 5th day of February 1868, were barred by the Statute of Limitations, and the jury should not allow any such accounts as set-off to the plaintiff's claim.

Judgment affirmed.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of assumpsit, brought March 7th 1872, by Thomas Leffel, Henry Barnett and Samuel McPherson, partners, &c., against George Seigworth, who survived
John G. Seigworth, to recover the price of three "Leffel's Improved Turbine Wheels."  The pleas were:  "Non assumpsit and payment with leave, &c."  The defence was that
the wheels had been warranted to do a certain amount of work, and that upon a test they did not come up to the warranty.  The defendant had made a payment at the time of the contract, and had also been at some expense in putting them in; he refused to pay the remainder of the contract price, and claimed damages also for the expense which he had incurred.

Defendant bought from plaintiff water-wheels for a mill under a warranty, that they would do specified work or the defendant might rescind the contract, and plaintiff would refund the money paid, pay all expenses and damages.  The defendant alleged the warranty had been broken; he did not rescind the contract, but continued to use the wheels.

The defendant further testified that the wheel worked well, but took too much water; that another mill with less water than their mill did more work; that after the wheels were put in, McPherson said the head was the cause of the failure, and he would put in the other wheel at his own expense; it still did not do, and John Seigworth said he would not pay another cent; that McPherson should take the wheels, and pay all the damages.

On cross-examination he testified that he had taken one wheel out and put it into a saw-mill, and it ran very well when there was water; that they were still running the grist-mill with the two wheels, and when there was plenty of water they did "splendidly."  The wheels did everything they had been represented to do, except that they took too much water.

Judgment affirmed.

McPherson, one of the plaintiffs, testified that in June 1869, he sold to the Seigworths three turbine wheels, at $260 each, and guarantied that they would "grind under 24 feet head as much as an overshot using about the same amount of water;" $350 were paid when the wheels were sold; the balance was to be paid as soon as the wheels were started; the wheels were furnished about May 1st 1870, and by agreement with Seigworth, another wheel, at $300, was substituted in place of one of those sent.  After the wheels were put in, they were tested, on the 13th of May, in the presence of the defendant, George Seigworth, and others, and "went off to satisfaction of all present."  They postponed further test until the next morning, that John Seigworth might be present; the next morning the water was almost all gone, there not being enough to make the stream a test, and John Seigworth condemned the wheel at once without making any test.  Plaintiff also testified that the streams did not afford the amount of water which Seigworth had said when the contract was made, that they would; that when the test was made on 13th of May, the wheels did all that he had agreed they should.

There was other evidence corroborating McPherson's testimony; also that Seigworth interfered with the workmen in carrying out McPherson's directions.

The defendant testified that McPherson guarantied that his wheels would take less water than a 24-feet overshot, give better power and more regular motion; if they did not, he was to take them away and pay all expenses and damages, the number of wheels was left to McPherson's option; Jaynes put up the wheels; plaintiffs sent him; the Seigworths were to pay him; they did pay him.

The defendant proposed to prove "that they paid Gabriel Jaynes $313 for putting these wheels in the mill.  This for the purpose, in connection with other evidence, of showing
damages sustained by the defendants in consequence of the wheels not performing as guaranteed by plaintiffs."

Originally heard in the Court of Common Pleas of Clarion County.

In the distribution of the proceeds of the sheriff's sale of the property of James L. Johnson.

Johnson was the owner of thirteen-sixteenths of a leasehold on what was known as the land of "Dittman's heirs," in Richland township, Clarion county.  On the 15th of November 1873, the Titusville Novelty Iron Works issued a fi. fa. on a judgment held by them against him and E. D. Hamilton for $1351.

On the same day, the sheriff went on the leasehold, stopped at the house on it, in which the defendant Johnson resided; he examined the house and oil-well on the leasehold, with the intention of levying on it if he did not get the money, and after looking over the leasehold and inquiring for Johnson, he went to St. Petersburg, about a mile and a half from the leasehold, and then met Johnson; he showed him the writ and told him he wanted the money; Johnson said he could not pay it; the sheriff told him if it was not paid he would have to make a levy.  He then levied on the leasehold and endorsed it on the writ that night in St. Petersburg and not in view of the property.

The sheriff's return to the fi. fa., made November 24th, was as follows:  "By virtue of the within writ I have levied on all the right, title, interest and claim, of the defendants, of, in and to a certain leasehold estate, situated on 'D. Shoup farm,' Richland township, Clarion county, Pa.; lease of 6 acres, bounded east by public road; south, west and north by D. Shoup farm; together with the oil-wells, engines, boilers, engine-houses, derricks, walking-beams, casing, tubing, rods, tanks and all the machinery and fixtures belonging to said wells and lease; also one frame dwelling-house on said lease, one set of drilling-tools and one buggy.  So answers S. Johnson, Sheriff."

According to this view of the case the auditor erred in not giving precedence to the writ of the Titusville Novelty Iron Works.  The decree of the court is therefore reversed, and it is ordered that the record be remitted for redistribution, and that the appellees pay the costs of this appeal.

On the same day, P. Graham & Co. issued a fi. fa. on a judgment in their favor against Johnson.

Previously to the return-day of these two writs, the term of the office of the then sheriff, S. Johnson, expired and the writs went into the hands of his successor, A. H. Beck.

To the venditioni he returned, "No property found in my bailiwick to answer the within levy."

To Graham's fi. fa. he returned:  "By virtue of within writ I have levied on the following property, to wit:  Derrick 20x20 base, 72 feet high, engine and boiler house 18x24 feet, engine, boiler 12 horse power, casing tubing and rods; said leasehold situated on lands owned by Dittman's heirs, in Richland township, Clarion county, Pa. Bounded north by Dittman's, east by D. Shoup farm, west by Dittman's and land leased to Vensel, situated on the south-east corner of said farm; also one house 18x16 feet, one and a half stories high, on said lease."

He further returned: "December 17th, after due and public notice being given, property cried and sold for $1820 to John Shoup."  Shoup was one of the firm of P. Graham & Co.

There were a number of other executions on mechanics' liens, &c., issued about the same time.  The above-mentioned executions had priority of all except those on the mechanics' liens.

The proceeds of sale were brought into court and referred to David Lawson, Esquire, as auditor, for distribution.  Before him the Titusville Novelty Iron Works and P. Graham & Co. were the contesting claimants for the balance of the fund after the payment of the mechanics' liens.

J. M. Guffey testified that the leasehold levied on was on the land of the Dittman heirs; the Shoup land lies on the east and south of it, and was the same property described by the sheriff in his levy; that he as agent of the Novelty Iron Works gave notice at the sheriff's sale that the property was the same that had been levied on by Sheriff Johnson; that the sheriff cried the sale on the writ of the Novelty Iron Works and named no other writ.

Originally heard in the Court of Common Pleas of Clarion County.

The bill in this case was filed July 1st 1872 by J. W. Allison and A. Evans, against R. W. Porterfield and M. C. Treat.

Defendants' appeal dismissed.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of ejectment, brought July 24th 1871, by John F. Orne and Morris R. Stroud against John Keating and others, for a lot of land in Richland township, containing 9 acres 48 perches.  The case was tried, September 1st 1873.

The plaintiffs gave in evidence a patent for the lot dated June 12th 1866, to John H. Vensel and David Vensel; they sold to Barney Vensel, and from him through intermediate sales their title vested in the plaintiffs.

The defendants gave in evidence title from the Commonwealth to Jared Ingersoll and others by warrant, December 31st 1874, and survey thereon April 3d 1800, for a body of land (No. 5793), including the premises in controversy, and chain of title from them to the defendants.

In rebuttal the plaintiff gave in evidence articles of agreement, dated February 6th 1865, between Barney Vensel and R. B. Brown, by which Vensel agreed to convey the land to Brown on the payment of $100 at the date of the articles, and $1400 on or before the 10th of March 1865, when a deed would be made; it being agreed that if the $1400 should not be paid at the time specified, the contract should be determined and the $100 forfeited.

Barney Vensel testified:  "I had a talk with Mr. Keating about the title before I bought the title; David wanted me to buy, and the report was Keating claimed part of the upper end of it, and I would not buy until I saw Keating.  I saw him, and asked him if he claimed any of the land.  He said he thought he claimed part of the upper end; said it did not amount to much, and he did not calculate to make David trouble about it; some time after I bought the land from David; from what Keating told me, I thought the title was all right, and David was poor, I bought it, and was to pay one hundred and fifty dollars, and did pay fifty dollars at the time; subsequently paid the whole amount; bought the whole thing from David; I am a brother of David Vensel; David moved on the land in 1862 or 1863; he built a house on it, and had a garden and potato patch; the cleared ground was enclosed."

Judgment reversed, and a venire facias de novo awarded.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of assumpsit brought March 2d 1875, by John Gregg and John Richardson, trading as D. Gregg & Co., against the First National Bank of Clarion County.

The plaintiffs' affidavit of claim was as follows:
"For money received by defendant from C. B. Weber on or about September 25th 1873, on a note payable to plaintiffs, and by them endorsed and sent through James T. Brady & Co., then bankers in Pittsburg, to the First National Bank of Clarion, for collection and
for no other purpose, $422.60
Interest from September 25th 1873, to February 10th 1875, $34.86
Total, $457.46"

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of assumpsit, brought by M. A. K. Weidner against William T. Alexander, to recover one-half the amount of a note made by Brown and Galey to the order of Alexander.

On the trial, the defendant submitted two points, both of which the court affirmed, but the first with a qualification.

To these answers of the court the plaintiff excepted, but the defendant did not.  The verdict was for the plaintiff, and judgment was entered thereon.

The defendant took this writ, and the error assigned was the qualification in the affirmance of his first point.

It appeared that the points of defendant and the answers thereto were filed with the record, but there was nothing contained therein to show that they were filed at the request of either party to the action.

Judgment affirmed.

Originally heard in the Court of Common Pleas of Clarion County.

This was an ejectment brought by James McCray against John Clark and Robert H. Patton, for a tract of land containing one hundred and seven acres, situated in Highland township, Clarion county.

On the trial, it was admitted that previous to 1861 the title to the land in dispute was in Columbus Reed.

The plaintiff claimed by virtue of articles of agreement under seal dated the 29th of December 1864, acknowledged the 25th of December 1871, and recorded December 26th 1871, wherein Columbus Reed sold and conveyed the land in question to plaintiff for $600, receipt of which was acknowledged in the agreement.  Plaintiff, it appeared, never took actual possession of the land himself or by tenant.

Defendants objected, and the court ruled: "There is no allegation that McCray was in possession of the land; he did not put his title upon record until the 26th of December 1871.  We do not see how the evidence, if admitted, would invalidate as to him either the lien of or sale under the judgment.  The objection is sustained, and evidence excluded."

The verdict was for the defendants.

Judgment reversed, and a venire facias de novo awarded.

The defendant Clark claimed that, on the 4th of May 1861, he entered judgment in the Court of Common Pleas of Clarion county against Columbus Reed for the sum of $346.74; that on the 2d of March 1866 he issued a scire facias to revive this judgment against Reed, which scire facias it appeared named no one as terretenant and contained no directions to the sheriff to serve on parties in possession, nor was McCray served with the writ.  On the back of the writ Reed accepted service, and on the 10th of May 1866 judgment was taken in default of an appearance.

On the 9th of March 1868 a writ of fieri facias issued, and the property was levied on, condemned and sold to Clark for $145, to whom the sheriff acknowledged and
delivered a deed on the 10th of December 1868.

In rebuttal the plaintiff proposed to prove by Columbus Reed that at the time John Clark issued his scire facias against Columbus Reed to revive his judgment, and at the time Reed accepted service of the writ, he admitted that he had notice of McCray's title, and that he was content to revive against Reed's other land alone, and having done so, the knowledge on his part of McCray's title is equivalent to the recording of the deed, and Clark and those under him cannot be innocent purchasers.

The defendants contended that this sale divested all title and interest of McCray in the land.

Originally heard in the Court of Common Pleas of Clarion County.

Assumpsit by Patrick Dorsey against William M. Abrams and others, trading as the Citizens' Saving Bank, on a check, a copy of which will be found in the opinion of this court.

Demand was made for the payment of this check on the 10th of January 1876, which was refused. At the trial , there was evidence to show that the certificate of Mr. Foster was a forgery, and also that by his subsequent acts and declarations, he had recognised and confirmed his certificate.

It was also in evidence that Foster had, at other times, certified checks; but it did not appear that they were other than ordinary checks received in the usual course of
business.

It was admitted that when McCullough drew the check he had no funds in the bank, and no right to draw.

Among the points submitted by plaintiff were two which embraced substantially these propositions:  First, that if Foster ratified the endorsement of the check, such act would amount to an acceptance of the check, and plaintiff is entitled to recover; and, second, if the jury believe, from the evidence in the case, that the managers of the bank had knowledge that Foster, their cashier, was certifying checks for their customers to give such customers credit in the oil market, and did not promptly repudiate such act, they would be bound by such certificate, whether the act was within the scope of the cashier's authority or not.

Both of these points the court refused.

"No. East Brady, Pa., Dec. 30, 1875.
Citizens' Savings Bank, East Brady, Pa., pay to P. Dorsey, Esq., or order, two thousand dollars.
To hold as collateral for 1000 P. T. oil, pipage paid to Jan. 4, 1876.
Good when properly endorsed.
A. W. McCullough.
J. Y. Foster.
Endorsement on back of check, P. Dorsey."

The J. Y. Foster who certified the check is the cashier of the defendants' bank.  It was alleged upon the trial, and there is evidence tending to prove, that the certificate of Mr. Foster was a forgery.  The plaintiff contended that if a forgery, Mr. Foster had recognised and confirmed it by his subsequent acts and declarations.

Originally heard in the Court of Common Pleas of Clarion County.

Debt by Rebecca Kerr, formerly Guthrie, against James W. Guthrie, for a legacy under the provisions of an alleged will of her father, Alexander Guthrie, Sr.

The defendant pleaded nil debet, payment with leave, &c.

A paper was taken from the register's office in 1852 which purported to be a will, but about the probate of which there was grave doubt.  The subscribing witnesses had testified to its execution and their affidavit was endorsed thereon by the register.  It was, however, neither filed nor recorded and was taken from the register's office.  Twenty-four years thereafter it was directed to be filed and recorded by a judge of the Common Pleas.  Held, that this was an undue exercise of judicial discretion.

The verdict was for the plaintiff.  The defendant assigned for error, inter alia, the admission in evidence by the court of the paper purporting to be the last will of Alexander Guthrie, Sr., and the entry of judgment for plaintiff upon the point reserved, which was "that under the pleadings and evidence the plaintiffs cannot recover."

Judgment reversed.

The alleged will of Alexander Guthrie was not proved at the trial.  Was it ever previously proved, so as to be evidence?  The certificate of the present register shows that no letters have ever been issued upon it, and that he has never judicially acted upon the question of its probate.  In pursuance of a verbal order of the Court of Common Pleas, upon a former trial of this case, directing the paper to be filed and recorded, he filed and recorded it.

Articles of agreement between Alexander Guthrie, senior, and James W. Guthrie, the defendant below, were executed on the 26th of January 1844, in which the terms of a former agreement made between the same parties on the 16th of May 1840, were recited, explained and construed.  Alexander Guthrie, senior, transferred to the defendant, who was his son, all his real and personal estate, except certain household furniture and cattle then in the possession of himself, his daughter Rebecca, and his son Isaiah.  In the first agreement, the consideration was stated to be $5750, and the further sum of $500, if that should be required by the father to be paid.  The revised agreement fixed the consideration at the sum of $6250, which was not to bear interest until after the expiration of one year from the father's death.  This was followed by stipulations in these words:  "And it is further understood between the parties that any money, or its equivalent, that the said James W. Guthrie may heretofore have paid, or may hereafter pay to any of my children, for which he will produce their receipts, are to be taken as a credit on the agreement hereinbefore recited, provided said payments shall not exceed the amount given and bequeathed to them respectively by my last will and testament. * * * And it is hereby agreed that the said James W. Guthrie will, in a decent, comfortable and respectable manner, support and maintain his said father, Alexander Guthrie, during his lifetime."

On the trial, a paper, purporting to be the last will of Alexander Guthrie, senior, was offered and admitted in evidence.  It was dated on the 5th of January 1846.  The subscribing witnesses, on the 25th of March 1852, testified to its execution, and their affidavit was endorsed upon it by the register.  The same day the persons named in it as executors endorsed a renunciation of their right to letters testamentary.  The paper was then taken from the office, and was first produced afterwards in court by the plaintiff on the 2d of February 1876.  Continuing the cause, which was then on trial, a verbal order to the register to file and record the alleged will was made by the court.  The view which is entertained of the rights of these parties will make a final disposition of this litigation, and any extended inquiry into the question raised by the exception to the admission of this paper would be superfluous, but it may be said that there is grave doubt whether any act was done either by the register of 1852 or by the register of 1876, that amounted to a probate of this will. If it had been expressly declared to be proved -- if, without that, it had been recorded -- if letters testamentary or letters of administration cum testamento annexo had been issued -- or, perhaps, if it had been simply filed, an adjudication by the officer would be presumed. Here, nothing was done in 1852 except to administer and endorse the oath of the subscribing witnesses. The paper was taken from the office, while the 17th section of the Act of the 15th of March 1832, expressly declares that all wills, after probate, shall remain in the register's office, "except when required to be had before some higher tribunal, by certiorari or otherwise, and if removed for such cause, shall be returned in due course to the office to which they belong."  In 1876, twenty-four years later, the filing and recording were directed by a judge of the Common Pleas.  This was the exercise of a judicial discretion certainly, but it was not the judicial discretion which the law directs to be exercised in the admission of a will to probate.

In the instrument executed by him, Mr. Guthrie bequeathed to his daughter Rebecca, the plaintiff below, $2300, the horned cattle in his possession, and his household and kitchen furniture.  Legacies of $800 each were given to two of his daughters, and one of $850 to his son, William Guthrie.  $800 were bequeathed to his executors, $400 of which were directed to be divided amongst certain specified religious institutions.  Any balance that should remain after payment of the legacies, was given to his daughter Rebecca.  Asserting a personal right to recover from the defendant under the terms of the agreement of the 26th of January 1844, and the provisions of the alleged will of her father, the plaintiff brought this suit for her legacy of $ 2300 on the 15th of July 1872.  In the charge of the court the following instructions were given to the jury:
"The consideration mentioned in the article is $6250, to be paid by J. W. Guthrie; $200 of this was paid when the article was signed, leaving $6050.  This sum, less the debts and expenses of administration, would constitute the fund out of which the legacies were to be paid pro rata. Whether the money referred to in these receipts and orders was paid, and whether it was paid outside of the maintenance and support of Alexander Guthrie, and what part thereof, are questions to be determined by the jury."  The verdict was for the plaintiff for $3759.82.

It is to be observed that neither the name of the plaintiff nor the name of any other beneficiary was mentioned in the original and recited agreement of 1840, or in the revised agreement of 1844.

At the time of Mr. Guthrie's death the situation of the fund for the payment of legacies was such as to require the adjustment of questions with which a jury in the trial of a common-law action are unfit to deal.  After the receipt by Mr. Guthrie of $200 at the date of the revised agreement, $6050 of the consideration remained unpaid.  The pecuniary legacies bequeathed amounted to $5550.  But the receipts admitted in evidence proved the payment of $2515.86 by the defendant to his father in his lifetime.  Allowance was claimed for other sums, but they were rejected, and are of no present importance.  Of the fund to meet $5550 of legacies, there remained in the defendant's hands only $3714.14.  In this sum all the legatees were interested, and, in the disposition of it, all had the right to be heard.  An attempt was made by the jury to apportion the plaintiff's share to her, and possibly approximate accuracy was reached.  Her proportion of the $3714.14 was something like $1450, and the jury seem to have fixed something less than $1600 as the principal sum on which interest was cast to produce the verdict.  Still, the attempt to marshal and distribute the assets of a dead man's estate through common law forms is always awkward, cumbrous and unsafe.  And the employment of those forms in the settlement of an estate like this was equally novel and inappropriate.  Each of the other legatees could have a separate action if the action of one could be maintained.  The same questions would arise in each trial, and the jury in each case would erect an equitable standard of adjustment and apportionment for themselves.  The defendant would be harassed by oppressive litigation, and, at the same time, be deprived of the safeguards against haste and prejudice which the patient, careful and deliberate investigation of the Orphans' Court provides for him.

Originally heard in the Court of Common Pleas of Clarion County.

Debt by John Gruber against the First National Bank of Clarion.

This action was brought by the plaintiff on the 4th of March 1876, to recover from the defendant double the amount of certain payments of usurious interest made to the bank within two years previous to the inception of the action, and also the excess above legal interest on certain other payments of usurious interest made more than two years previous to the commencement of the action, and within six years of same.  The declaration filed in the case contained thirteen counts, the first ten being special ones for double the amount of payments of usurious interest made within two years of the commencement of the action; the other three were common counts for money received, money paid, and for an account stated, and were intended to cover excess of legal interest paid more than two and less than six years prior to the bringing of suit.

Defendant pleaded the general issue, followed by a second and third plea to the jurisdiction. The plaintiff joined issue on the first plea, and on the other two demurred to the jurisdiction. The court sustained the demurrer, and without further pleas the cause came on for trial.

Judgment reversed and a venire facias de novo awarded.

Originally heard in the Court of Common Pleas of Clarion County.

Debt by John Gruber against the First National Bank of Clarion.

The material facts are set forth in the report of the preceding case of Gruber v. The First National Bank of Clarion, which was a writ of error taken by the plaintiff to the same judgment.  The questions considered and disposed of on the present writ are stated in the opinions of this court.

Judgment reversed and a venire facias de novo awarded.

Originally heard in the Court of Common Pleas of Clarion County.

Debt by John Gruber against the First National Bank of Clarion.

This suit was brought to recover from the defendant double the amount of all payments alleged to have been made by the plaintiff to the defendant as usurious interest, within two years previous to the inception of the action, and also all excess above six per cent. alleged to have been paid during the additional period of four years prior to the 4th of March 1874.  The plaintiff declared specially for the double interest, and added the common counts on which to recover the excess.  On the 24th of March 1879, defendant presented a petition to remove the same to the Circuit Court of the United States, which was refused.

The plaintiff claimed to recover the discount on four different lines of notes; the first notes of John Gruber, the plaintiff, which began on the 29th of March 1870, and were either paid off or embraced on the 7th of January 1872, in note given by John and Henry Gruber, which constituted the second line of notes, and this line was continued by renewals until the 12th of June 1875, when it was closed by a judgment on the last of the notes, being $2238, and the judgment was not paid until the 28th of August 1876, nearly five months after the bringing of this suit, and was then paid principally out of the proceeds of a sheriff's sale of Henry Gruber's property.  The third line of notes were those of John Gruber, Henry Gruber and Samuel Newell, which began on the 3d of October 1873, and after a succession of renewals, on the 27th of November 1875, was closed by a judgment in favor of the bank of $348.30, which was not paid until the 28th of August 1876, and was then paid out of proceeds of sale of real estate principally of Henry Gruber.  The fourth line of notes were those of Cook & Co. and John Gruber, endorsed by R. Rulofson, which Rulofson had discounted at the bank, but charged the discount against John Gruber on a settlement Rulofson had with Gruber. On these several lines of notes, which constituted the greater part of the plaintiff's claim, discount was charged generally at the rate of twelve per cent. Sometimes the discount was paid at the time of the purchase of the notes, sometimes it was reserved out of the amount given for the notes, and at other times it was added into the notes, and went along the line of successive renewals, till they were closed in judgments or paid.

The judgment is reversed and a new venire awarded.

Excluding the notes of Cook & Co. and John Gruber, that Rulofson had discounted, the whole amount of discount actually paid on the several notes claimed by plaintiff between the 4th of March 1874, and the 4th of March 1876, was $217.70; the whole amount added into or reserved out of notes during the same period, was $62.50; the whole amount of discounts paid between the 4th of March 1870, and the 4th of March 1874, was $1064.72; and the whole amount added in or reserved out during the same period, was $264.28, and the greater part of all this was on the joint notes of John and Henry Gruber.  The plaintiff in this case claimed this last line of notes was discounted for his benefit, and Henry Gruber claimed that the discount was paid by him, and had brought suit for the same discounts, which was offered to be proven by a certified copy of the record of the Circuit Court of the United States, in the case of Henry Gruber against the same defendant, but the testimony was excluded by the court.

The evidence in this case establishes the fact that John Gruber was the beneficial owner of the notes produced on the trial, and that for him alone were they discounted by the bank.  It hence follows that any claim that Henry Gruber might have set up to the penalty, growing out of the illegal discounts, was without foundation, and was properly disregarded.

Originally heard in the Court of Common Pleas of Clarion County.

Assumpsit by H. Wetter, to use of W. C. Howe, against J. B. Watson and C. C. Brosius, on the following promissory note:

"$1875. Clarion, Pa., June 18th 1877.

Six months after date we promise to pay to the order of H. Wetter $1875, at the First National Bank of Clarion, Pa., without defalcation for value received.  If not paid at maturity waiving exemption, inquisition appeals, without stay of execution, and with five per cent attorney's commission for collection.
fl 7393. J. B. Watson,
Due December 18/21. C. C. Brosius."

On the 2d of August 1878, the plaintiff's attorneys entered a compulsory rule of reference under the Act of 16th June 1836, and on the 10th of September 1878, the
arbitrators filed their award, awarding to the plaintiff $2054.35, from which award the defendants took an appeal.  On the 11th of November 1878, plaintiff moved the court to strike off and quash the appeal from the award of arbitrators, for the reason that "the right of appeal was waived by defendants in note on which award was made, a copy of said note being filed along with declaration, according to rule of court, which has not been controverted by affidavit."

The court granted a rule to show cause, and after argument struck off the appeal, which was the error assigned by defendants, who took this writ.

Order affirmed.

Originally heard in the Court of Common Pleas of Clarion County.

Trespass vi et armis, de bonis asportatis, by Jacob Black, against Philip Gloss, Joseph Hoofnagle, John H. Walker and John Young.

On the 10th of May 1877, R. J. Dahle obtained a judgment, before Justice Adam Black, against R. M. Shaw, and soon after issued an execution to John Young, a constable, who, by virtue thereof, regularly levied upon and sold, as the property of Shaw, certain rig timbers, about thirty-two pieces, to Philip Gloss, for $40.  Gloss immediately gave the property in charge of a man he had hired to watch it, and the same day, or the next, began to have it hauled to his home, which he accomplished within a few days.  No notice of any adverse claim was given at the constable's sale, nor did Gloss have any knowledge of any such claim till after he had hauled a considerable part of his purchase away.  Hoofnagle and Walker were Gloss's hands who did the hauling; John Young was the constable who sold the property.  After he had delivered the timber to Gloss he had nothing to do with it.  On part of Black, the plaintiff, it was claimed that he had bought the timber of Rockwell and McCool on the 16th of April 1877, who, he claimed, had owned it.  On part of defendant it was alleged the property had been cut off Shaw's land, taken out and hauled by himself and Peters, Rockwell and McCool, as his employees, and that the property belonged to Shaw at the time of the levy.  At the time of the levy and sale of the timber by the constable, it was lying at the side of the public road where it had been dropped as it had been hauled out of the woods -- the public road at that place running over lands of Black, the plaintiff.  The constable's sale of the timber was made at the place where it was lying, the constable standing on the timber at the time, and immediately after the sale he delivered possession to Gloss, the purchaser, and gave him a bill of sale and receipt for the money.

Judgment reversed, and venire facias de novo awarded.

Originally heard in the Court of Quarter Sessions of Clarion County.

This was a petition by the directors of the poor of Blair county for a rule on the overseers of the poor of Clarion borough, to show cause why the latter should not pay the costs and expenses incurred by said county of Blair in removing George W. Conard, a pauper, to the said borough of Clarion, and for his relief.  The court discharged the rule on the ground that, as the order of removal was unappealed from, and the pauper had been accepted, there could be no recovery.

A pauper having a legal settlement in the borough of Clarion became a charge on the county of Blair.  He was duly removed to and accepted by the borough of Clarion, and the order of removal was served on the overseers of the poor of said borough, and no appeal was taken therefrom.  A bill of expenses incurred by the county of Blair for the relief and removal of said pauper was duly proved and demand for its payment made upon the overseers of said borough.  They denied their liability and
refused to pay, and a rule to show cause why they should not pay granted by the Quarter Sessions of Clarion county was, after hearing, discharged.

Decree reversed, and now rule reinstated and a procedendo awarded.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of replevin brought by Thomas Dougherty against James Haggerty on the 14th of April 1877, for 120,000 feet of hemlock lumber.  About 80,000 feet worth from $8 to $10 per 1000, of the property was replevined at the mouth of the Clarion river, and retained by the defendant, Haggerty, upon giving property bond.

The owners of the tract containing this 439 acres alluded to in the above contract as that from which the lumber was to be taken, were S. T. Dougherty, who owned one undivided half, James McClelland one-fourth, and C. C. Faries and the heirs of one Graphies jointly the other fourth.  S. T. Dougherty was the owner of at least one-fourth of the mill and fourteen-acre tract.  S. T. Dougherty, under his contract in the fall of 1876, went on and cut logs on the 439-acre tract, and run them to the saw-mill on the fourteen-acre tract, where they were manufactured by a sawyer in his employ to whom he furnished the sizes.  After the lumber was manufactured it was piled up at the mill.   After they had been thus sawed and piled ready to raft an execution was issued on a judgment of Powers v. S. T. Dougherty, S. T. Reynolds and James McClelland, and the boards were levied on and sold to James Haggerty, defendant, who employed hands, rafted in and run them to the mouth of the Clarion river, where they were replevined by the plaintiff.

Verdict for defendant, and after judgment plaintiff took this writ, and alleged that the court erred.  Judgment affirmed.

In the year 1874, James A. McClelland, Samuel T. Reynolds and S. T. Dougherty, became the owners, by purchase and conveyance, from L. F. Flowers and wife, of the undivided three-fourths of 439 acres of land, being part of Holland warrant 2.775, in Spring Creek township, Elk county, Pennsylvania.  It appeared from an article of agreement between S. T. Reynolds and S. T. Dougherty, dated the 16th of January 1875, given in evidence on trial, that said Dougherty and Reynolds had been engaged as co-partners, under the name and style of Dougherty & Reynolds, in anufacturing lumber.  On that date, S. T. Reynolds sold and transferred by said articles of agreement, to S. T. Dougherty, all his interest in the partnership assets; also his interest in the 439-acre tract.  And also a one-fourth interest in a 14-acre tract, on which was erected a saw-mill and other buildings, purchased March 3d 1874, by article of agreement from L. F. and F. M. Powers.

On the 1st of August 1876, an agreement was made between S. T. Dougherty and his father, the plaintiff in error, as follows:  "An article of agreement made by and between S. T. Dougherty, of Elk county, Pa., and Thomas Dougherty, of Clarion county, Pa., witnesseth, that the said S. T. Dougherty sells and delivers to the said Thomas Dougherty, one hundred thousand (100,000) feet, more or less, of hemlock lumber, board measure, at the rate of fifty cents per 1000 feet, board measure.  The said hemlock is to be taken off a lot of land lying in Spring Creek township, Elk county, Pa., and bought of L. Powers by S. T. Dougherty and James McClelland.  And the said lumber is to be cut and removed just as soon as it can be; and in consideration and connection with the above, S. T. Dougherty agrees to cut, haul, saw, raft and run to market the hemlock timber at the rate of $5 per 1000, to be paid as the work progresses, and said lumber to be run to any point on the Allegheny to Pittsburgh, Pa."

Endorsed on this contract were receipts by S. T. Dougherty for $50, on the 1st of August 1876, and of $400, on the 14th of October 1876.

Originally heard in the Court of Common Pleas of Clarion County.

This was an ejectment brought by James McCray against John Clark and Robert H. Patton, for a tract of land containing one hundred and seven acres, situated in Highland township, Clarion county.

On the trial, it was admitted that previous to 1861 the title to the land in dispute was in Columbus Reed.

The plaintiff claimed by virtue of articles of agreement under seal dated the 29th of December 1864, acknowledged the 25th of December 1871, and recorded December 26th 1871, wherein Columbus Reed sold and conveyed the land in question to plaintiff for $600, receipt of which was acknowledged in the agreement.  Plaintiff, it appeared, never took actual possession of the land himself or by tenant.

Defendants objected, and the court ruled: "There is no allegation that McCray was in possession of the land; he did not put his title upon record until the 26th of December 1871.  We do not see how the evidence, if admitted, would invalidate as to him either the lien of or sale under the judgment.  The objection is sustained, and evidence excluded."

The verdict was for the defendants.

Judgment reversed, and a venire facias de novo awarded.

The defendant Clark claimed that, on the 4th of May 1861, he entered judgment in the Court of Common Pleas of Clarion county against Columbus Reed for the sum of $346.74; that on the 2d of March 1866 he issued a scire facias to revive this judgment against Reed, which scire facias it appeared named no one as terretenant and contained no directions to the sheriff to serve on parties in possession, nor was McCray served with the writ.  On the back of the writ Reed accepted service, and on the 10th of May 1866 judgment was taken in default of an appearance.

On the 9th of March 1868 a writ of fieri facias issued, and the property was levied on, condemned and sold to Clark for $145, to whom the sheriff acknowledged and
delivered a deed on the 10th of December 1868.

In rebuttal the plaintiff proposed to prove by Columbus Reed that at the time John Clark issued his scire facias against Columbus Reed to revive his judgment, and at the time Reed accepted service of the writ, he admitted that he had notice of McCray's title, and that he was content to revive against Reed's other land alone, and having done so, the knowledge on his part of McCray's title is equivalent to the recording of the deed, and Clark and those under him cannot be innocent purchasers.

The defendants contended that this sale divested all title and interest of McCray in the land.