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tween the parties, and that is indefinite, recourse must be had to the demand as
laid in the plaintiff's declaration. Forrester v. Alexander, 311.

JUROR.

1. The waiver of the first challenge of a juror by each party, cannot be con-
strued to be a waiver of the second also. Kennedy v. Dale, 176.

2. The 150th section of the Act of 14th of April 1834, authorizing each party
peremptorily to challenge two jurors in civil cases, does not extend to viewers pro-
vided for by the 159th section of the same Act Schuylkill Navigation Co. v.
Farr, 362.

JUSTICE OF THE PEACE.

FOREIGN ATTACHMENT, 1, ^.
JUDGMENT, 3.

LAND.

AGREEMENT, 2.

LANDLORD & TENANT.

1. If an inquest, summoned by the authority of two justices, under a proceed-
ing by a landlord to dispossess his tenant, cannot agree, they may be discharged,
and another venire issued to summon a new jury. Cunningham v. Gardner, 120.

2. No other proof is necessary to found a proceeding by a landlord to dispossess
his tenant than the affidavit of the landlord himself. Ibid.

3. In a proceeding under the landlord and tenant law, there is no right of appeal
given to the tenant by reason of anything which he may allege to exist in the



INDEX. 589

LANDLORD AND TENANT.

contract of tease ; it is only given to a third person or the tenant claiming by de-
scent or purchase from the lessor since the date of the lease. The tenant cannot
appeal by reason of any allegation of title existing in a third person, although
created since the date of the lease. Ibid.

4. An adverse claimant who gets into possession of land by tampering with his
adversary's tenant, stands in the tenant's place, and cannot resist the landlord's
title where the tenant himself could not ; and this whether the possession is surren-
dered by the mere consent of the tenant or by means of a collusive recovery.
Stewart v. Roderick, 188.

5. A purchaser at sheriff's sale under a judgment on a mortgage, by giving notice
to quit to a tenant holding under a lease subsequent to the mortgage, disaffirms the
lease and determines the tenancy ; and the relation of landlord and tenant cannot
be renewed by the tenant's remaining in possession, or any act short of a mutual
contract for a new lease. Hemphill v. Tevis, 535.

LEASE.

EVIDENCE, 4.

LANDLORD AND TENANT, 5.

A lease for a term of years is the subject of levy and sale upon a fieri facias,
without inquisition and condemnation. Dalzell v. Lynch, 255.

LEGACY.

ADMINISTRATOR, 2.
DEVISE, 2, 3.

1. Land devised to executors to be sold and the proceeds to be divided amongst
the legatees, is not the subject of a lien or execution against the legatees, but they
may elect to take the land instead of the proceeds of the sale of it, and after such
election it becomes the subject of lien, and may be sold upon a judgment and execu-
tion against the legatee. Stuck v. Mackey, 196.

2. It seems a simple bequest of a legacy to be paid by a devisee of land, without
more, does not amount to a charge of the legacy on the land. In the absence of
something to that effect, it is a charge on the devisee personally. Dewitt v. El-
dred, 414.

3. If a legacy to a feme sok be charged on land, and she marries, and her. hus-
band takes a bond for it from the devisee to himself, it extinguishes the charge. Ibid.

4. The widow and heirs (who are also legatees) confirm a doubtful will, and
under a mistaken supposition that one of the legacies has lapsed by death, compro-
mise together with the administrators by the heirs releasing to the widow, and the
widow conveys lands not named in the will to the administrators who settle with
the legatees. Afterwards the legatee appears and recovers of the administrators.
Held they could not recover contribution against the widow to whom they had
paid over half the assets, if they still have more than the sum recovered in their
hands of the personal property of the testator, and they have sold the lands at an
advance, unless an express contract be proved. Saeger v. Wilson, 501.

5. In such case, parol evidence is admissible to show all that passes. Ibid.

LEGISLATURE.

STATUTE, 1.

The legislature may pass laws altering, modifying or even taking away remedies
for the recovery of debts, without incurring a violation of the provisions of the
constitution which forbid the passage of ex post facto laws, or laws impairing the
obligation of contracts. Evans \. Montgomery, 218.

LIEN.

MECHANIC'S LIEN, 1, 2.

LIMITATIONS.

ASSIGNMENT, 1.
GUARDIAN AND WARD, 3, 4.

iv. 2z



590 INDEX.

LIMITATIONS.

SHERIFF, 1, 2,
UNSEATED LAND, 2, 4, 8.

1. In an action of ejectment, upon the plea of the Statute of Limitations, a decla-
ration of the defendant, that he was willing to purchase from the plaintiff, made
more than 21 years before suit brought, will not prevent the operation of the
statute. Bell v. Hartley, 32.

2. An actual adverse possession of land for 21 years, gives title not only to that
part of it which was cleared and cultivated, but to all that was included within
marked lines during that period. Ibid.

3. The Statute of Limitations protects the title of the claimant not only to the
land enclosed and cultivated, but also to the woodland embraced within his desig-
nated boundaries. M'Callv. Cower, 151.

4. In equity courts, twenty years is a positive bar to any claim. Bull v. Tow-
son, 557.

5. Even a promise by guardian, after such lapse of time, without proof that he
had funds, would seem to be void. Ibid.

6. In such a case, where the testimony of the only witness is contradictory, after
this lapse of time, every paper, statement, account, receipt, anything in the hand-
writing of the administrator or guardian relative to the matter in issue, if proved to
have been made in the course of settling the estate by those whose duty it was to
watch and check each other as administrator and guardian, is evidence. Ibid.

LOAN.

DEBT, 1.

1. Certificate of loan issued in the year 1830, by an incorporated company, that
there was due from them to A. or her assigns a certain sum, bearing an interest
of 6 per cent, per annum, payable quarterly on certain days, the principal to be
redeemable, in the option of the company, at any time after the 1st of January
1840 ; and further stating it was issued under a resolution of the company, and
the holder will be entitled to convert the whole of said sum into shares of the
capital stock of the company at any time previous to the 1st of January 1840.
Held that it created an annuity coupled with a power to redeem after the 1st of
January 1840, the company alone having the power after that period to determine
when the loan shall be repaid, and that action will not lie to compel payment of
the principal against the will of the company. Union Canal Co. v. Antillo, 553.

MANDAMUS.

NICHOLSON COURT, 1.

MASTER AND SERVANT.

V. Faithful service is a condition precedent to the right of a servant to recover
wages ; misconduct inconsistent with the relation of master and servant will justify
the master in putting an end to the contract of service at any time. Singer v.
M'Cormick, 265.

MECHANIC'S LIEN.

1. The Act of the 28th of April 1840, so modifies the remedy for the recovery
of a mechanic's lien, that no greater estate in the premises charged with the lien
can be sold, than was vested in the person in possession at the time the building
was erected ; and this whether the lien was created before or since the passage of
that Act. Evans v. Montgomery, 218.

2. The Act of 28th of April 1840, so explains the mechanic's lien law of the
16th of June 1836, that a sheriff's sale upon a lien created by that Act, confers no
other or greater title in the premises, than that which was vested in the person in
possession at the time the building was erected. O' Conner v. Warner, 223.

3. A terre-tenant of ?. house sought to be affected by the lien of a mechanic, is
not a competent witness for the defendant upon the trial of a scire facias upon the
lien. Jones v. Shawhan, 257.

4. A mechanic is not bound to file his lien against one who was not the owner,
when the building was commenced, but became so before the lien filed. Ibid.



INDEX. 591

MECHANIC'S LIEN.

5. When the time at which materials were furnished is not set out in the lien
filed, it may be shown by proof on the trial. Ibid.

6. The acceptance of a note for the amount of the account of the mechanic, is
not such a satisfaction as will prevent the filing of it as a lien ; but if a receipt be
given at the foot of the bill for the note in full of the above," it is evidence of
satisfaction, which should be left to the jury. Ibid.

7. One, who furnishes nothing but his superintendence and skill as an under-
taker, has no right to file a lien for anything in pursuance of his contract as such. Ibid.

8. A scire facias upon a mechanic's lien cannot be maintained for a claim appor-
tioned among several buildings. Ibid.

9. A mechanic's claim against a building situate in Clinton street on the north
side thereof, and 130 feet east of Eleventh street, containing in front on Clinton
street 20 feet," is not inconsistent with a deed describing a building as " situate on
the north side of Clinton street, beginning at the distance of 1 16 feet eastward from
the east side of Eleventh street, and containing in front on Clinton street 20 feet."
Ewing v. Barras, 467.

10. Certainty to a common intent is sufficient in a description of property in a
mechanic's claim. Ibid.

11. Whether the descriptions of a building in a deed and in a mechanic's claim
agree, is a question for the jury. Ibid.

MORTGAGE.

EVIDENCE, 13.
PRINCIPAL AND SURETY, 1.
SHERIFF'S SALE, 1.
SHIP, 1.

1. A mortgage in fee by a husband and wife of land devised to the wife " for her
own and sole use for ever," and if her husband survive her for life to him, with
remainder in fee to her children, or such other person as she by her last will and
testament may order and direct, is void as to the estate of the wife, and all else,
except the life estate of the husband. Cochran v. O'Hern, 95.

2. Mortgages of real or personal estate, given to secure the payment of money
. or debts, are not within the 5th section of the Act of 24th of March 1818, requiring

deeds of assignment to be recorded within 30 days. Ridgway v. Stewart, 383.

MUNICIPAL CORPORATION.

Where a municipal corporation act under an authority to regulate and grade
the ascents and descents of streets, it is error in an action on the case against them
for obstructing the flow of water, to submit to the jury whether their object was to
benefit the private property of the corporation : the only question is, whether they
possessed the authority which they exercised. The Mayor v. Randolph, 514.

NICHOLSON COURT.

An Act of Assembly authorized the judge of the Nicholson Court to appoint as
commissioner, a person to be nominated " by a majority of the creditors whose
claims have been reported and filed with the present commissioner, or any person
authorized by them." The number of such creditors was 126 . of these, 51 nomi-
nated a person, and the judge appointed and commissioned him. //'/(/. that the
appointment was unauthorized and void, and that a mandamus would not be <
granted to restore him to office, after liaving been removed by the judge. Com-
ntonwealth v. Anthony, 511.

NISI PRIU8.

1. Under the Act of 26th of July 1842, both an affidavit and security are indis-
pensable conditions to be performed by a party appealing to the court in bank on
an order of the judge and certificate from the court of Nisi I'rius. Dawson v.
Ryan, 403.

2. Where more than twenty-one days intervene between the judgment and the
next term, the party is entitled to his appeal, when the order \ in due form certi-
fied by the judge, (with affidavit and security), though the twenty-one days have
expired : but he cannot have the benefit of a supersedcaa to execution unless the



592 INDEX.

NISI PRITJS.

order is taken and perfected by affidavit and security entered before the expiration
of that time. Ibid.

3. To entitle a party to a review of the proceedings of the Nisi Prius court, he
must take a bill of exceptions, and in other respects have his cause prepared for a
hearing at the next term of the Supreme Court after judgment rendered ; but the
appeal is in time if entered before 10 o'clock A. M. of the first day of the next
term. Ibid.

4. It seems, though the Act speaks only of security for damages and costs, its
intention is to include judgments in debt and assumpsit, and whether for plaintiff
or defendant Ibid.

5. The court of Nisi Prius is a distinct and independent court. Ibid.

NOTICE.

BILLS OF EXCHANGE, &c., 3.
CORPORATION, 1.
PRINCIPAL AND AGENT, 1.

NUNCUPATIVE WILL.

A nuncupative will is good only when made in such extremity of the last sick-
ness as precludes a written one. Bayer v. Frick, 357.

OFFICER.

In a suit against a corporation for a penalty for illegally issuing notes, evidence
is admissible to show that the officer representing the corporation was an officer
de facto. M'Gargellv. Hazkton Coal Co., 424.

OFFICIAL BOND.
SHERIFF, 1, 2.

ORPHANS' COURT.
EXECUTOR, 3.
TRUSTEE, 2.
WITNESS, 8.

It seems that the Orphans' Court has the power to direct as to future proceed-
ings, after the reversal of a judgment on a feigned issue sent by that court to the
Common Pleas. Bull v. Towson, 557.

OUSTER.

DISSEISIN, 1.

OWNER.

SHIP, 1.

PAROL CONTRACT.

VENDOR AND VENDEE, 4.

PAROL EVIDENCE.

LEGACY, 5.

Parol evidence to vary a written agreement concerning lands, or to pass an
interest in them in fee-simple without writing, is inadmissible. Seitzinger v.
Ridgway, 472.

PARTITION.

WITNESS, 7.

1. Under the Act of 29th March 1832, the Orphans' Court, on the return of the
inquest of partition, may make at once a complete partition of the whole estate, by
assigning a share to each of the parties in the order of choice prescribed by the
37th section, if he will choose ; and if not, by assigning a share not selected by
any one, and ordering the payment of owelty or security for its payment to be
given by those to whom shares subjectto it shall be assigned. Sampson's Appeal, 86.

2. An encumbrance upon an inheritance, created by the ancestor, is a good de-
fence against the payment of the valuation money by the heir, to whom the estate
was allotted in a proceeding in partition ; and this, whether that proceeding be in



INDEX. 593

PARTITION.

the Orphans' Court or Common Pleas, and without regard to the mode in which
the valuation money was secured. Seatonv. Barry, 183.

PARTNER.

1. Assumpsit will not lie by one partner to recover from the other a balance due
upon the settlement of their partnership account, without proof of an express pro-
mise to pay. Killam v. Preston, 14.

2. A partnership account stated by one partner after the dissolution, and pre-
sented to the other, who retains it in his possession for more than a year without
objection to it, is not sufficient evidence, upon which a recovery of the balance ap-
pearing to be due upon it, may be had. Nor is the copy of such account retained by
the plaintiff evidence at all, without notice to produce the original. Ibid.

3. A note given by one partner, after dissolution, for a debt of the firm, is not an
extinguishment or satisfaction of the original debt, so as to discharge the other
partner, unless such was the agreement when the note was given ; and this is a
fact for the determination of a jury. Mason \. Wickersham, 100.

4. The acts and declarations of a partner after the dissolution of partnership
cannot be given in evidence to affect any one but himself ; but if he be both plain-
tiff and defendant by virtue of the Act of Assembly of the 14th April 1838, they
may be given in evidence for that purpose, and to affect his co-defendant who acted
with him. Tassey v. Church, 141.

PAYMENT.

PLEADING, 5.

PLEADING.

DECLARATION, 1.

1. In indebitatus assumpsit as well as in an action on a bond or special con-
tract, the defendant can only take advantage of a nonjoinder of another who is
jointly liable with him, by a plea in abatement. Grubb v. Foltz, 548.

2. In an action of assumpsit the defendant cannot, under the plea of payment,
give evidence tending to disprove the cause of action set forth in the plaintiff's
statement Hamilton v. Moore, 570.

3. Quaere, if he can even under the plea of payment with leave, if no notice of
such defence has been given according to the rules of court. Ibid.

4. The plea of payment confesses the cause of action set forth in the plain-
tiff's statement. Ibid.

5. Under the plea of payment the evidence may be of payment in other things
than money. Ibid*

POSSESSION.

Possession follows title, unless there be adverse occupancy. Lewis v. Lewis, 378.

PRACTICE.

The court is not bound to answer points proposed on a trial which, according to
the rules of court, are out of time. Kinky v. Hill, 426.

PRESUMPTION.

EXECUTOR, 1, 2.

PRINCIPAL AND AGENT.

1. In order to visit a principal with constructive notice of a fact known to his
agent, it is necessary that such knowledge should have been gained by the agent
in the course of the same transaction. Bracken v. Miller, 102.

2. An agreement to place goods in the hands of an agent who at the time was
insolvent, for the purpose of sale, upon the terms of his paying to his principal the
invoice price of the goods and retaining the overplus for himself, is not fraudulent ;
nor does it vest in the agent such an interest in the goods as is the subject of levy
and sale. M'Culloufrh v. Porter, 177.

3. The acts of an agent or attorney done after the death of his principal, of
which he was ignorant, arc binding upon the parties. Cassiday v. M^Kenzie, 282.

iv. 75 2z*



594 INDEX.

PRINCIPAL AND AGENT.

4. It is the duty of an agent to give his principal timely notice of every fact or
circumstance which may make it necessary for him to take measures for his secu-
rity : and if he fail to do so, it is a dereliction of duty for which he is chargeable.
Devall v. Burbridge, 305.

PRINCIPAL AND SURETY.

If a surety pays the creditor, he has a right to a mortgage formerly given to the
creditor as collateral security ; but if it be paid by the principal debtor, or out of a
trust fund belonging to him, the mortgage is extinguished, and an assignment of it
by the surety to secure moneys borrowed on his individual account is invalid, espe-
cially if the lender knew before such assignment that the mortgage was paid off.
Kinky v. Hill, 426.

PROCESS.

When process issued is legal, the plaintiff is answerable only for a malicious
abuse of it ; and where the circumstances afford no inference of malice, actual
malice must be proved. ATCullough v. Cfrishobber, SOI.

PROTEST.

BILLS OF EXCHANGE, &c., 7, 8.

RECOGNIZANCE.

STAY OF EXECUTION, 1.

1. In a scire facias upon a recognizance of bail, the defendant cannot, under the
plea of payment, take advantage of any want of form or substance-in the recog-
nizance given in evidence to support the writ which recited one in due and proper
form. Abbott v. Lyon, 38.

2. Where a cause is remitted from the Common Pleas of one county to a special
court in another county, the latter court may discharge a recognizer from his recog-
nizance and receive another surety, for the purpose of making the original one a
witness. Schuylkill Navigation Co. v* Fair, 362.

3. Such subsequent recognizer is bound only for subsequent costs, and the first
remains liable for costs up to that time, and is therefore interested, unless the recog-
nizance be specially worded. Ibid.

RECORDED DEED.
DEED, 5, 6.

REFUNDING BOND.

ADMINISTRATOR, 2.

RELEASE.

JUDGMENT, 5.

REMAINDER.

TENANT FOR LIFE, 2.

REMITTITUR.

JUDGMENT, 1.

RETROSPECTIVE ACT.
ACT OF ASSEMBLY, 1.

REVIEW.

EXECUTOR, 3.

ROAD.

1. It is fatal to the confirmation of a public road that no order was made by the
court respecting the width of it Road Case, 39.

2. A public road cannot be located alongside of and adjoining another public
road so as to increase the width of both exceeding 50 feet. Ibid.

SATISFACTION.

MECHANIC'S LIEN, 6.



INDEX. 595

SCIRE FACIAS.

RECOGNIZANCE, 1.

It is not necessary that the widow and heirs should be made parties to a writ
of scire facias, to revive a judgment and continue its lien upon the land of the
decedent. The 34th section of the Act of 24th of February 1834, is not appli-
cable to such cases. M'Millan v. Red, 237.

SEQUESTRATOR.

In an action by a Turnpike Company, a sequestrator may appeal from an award
of arbitrators against the company, and make the oath and enter into the recog-
nizance required by law. Turnpike Co. v. M'Anulty, 293.

SET-OFF.

COVENANT, 2.
PARTITION, 2.

1. Set-off is only allowable in favour of a defendant ; consequently there can be
no such thing as set-off against set-off. Ulrich v. Berger, 19.

2. In an action brought before a justice of the peace to recover the price of goods
sold and delivered, the defendant may give in evidence as a set-off a special con-
tract between him and the plaintiff by which the plaintiff promised to do certain
work for the defendant, and did not, whereby the defendant is entitled to recover
damages for the non-feasance. Nickle v. Baldwin, 290.

SETTLEMENT

WARRANT AND SURVEY, 1, 2, 5.

SHERIFF.

1. The proviso contained in the 4th section of the Act of 1803, which limits the
liability of a sheriff's sureties to five years, is not altered or supplied by the Act
of 1834. Commonwealth v. Rainey, 186.

2. If a cautionary judgment be obtained against a sheriff and his sureties for the
amount of the penalty of his official bond, within five years, a scire facias upon
that judgment, issued after the five years have elapsed, by one who was, a stranger
to the first judgment, will not entitle him to recover against the sureties. Ibid.

SHERIFF'S SALE.

LANDLORD AND TENANT, 5.

1. A sheriff's sale upon a mortgage confers no title on the purchaser to that part
of the land which lies beyond the line of the county where the sale was made ; nor
does it aid the title that the mortgagor was present at the sale, and made no objec-
tion, but on the contrary encouraged it, by bidding himself, and after the deed was
acknowledged, surrendered the possession, and looked to the payment and satisfac-
tion of the mortgage and other liens covered by the purchase money. Menges v.
Oyster, 20.

2. The amount of money realized by the plaintiff in a judgment, by means of a
sheriff's sale of land, must be credited to the defendant, whether it be procured by
a private contract with the purchaser or bid at the public sale ; and if a sum be
procured for the land by means of a private contract between the plaintiff and the
purchaser, and the land be bid in for a smaller sum for the purpose of making the
title, the larger sum must be considered for all purposes the price at which the land
was sold ; as well between the plaintiff and defendant as third persons interested
in the price. Young v. Stone, 45.

SHIP.

The owner of a vessel, such as is responsible for supplies or necessaries, fur-
nished for her use by the orders of the master, is the person, who having some
kind of claim or title, has the control and management of the vessel and the right
to receive her freight and earnings and direct her destination. One who has the
mere legal title, whether by bill of sale, mortgage or pledge, is not liable for debts
contracted by the master for supplies. Duffy. Bayard, 240.

SPECIAL COURT.

RECOGNIZANCE, 2.



596 INDEX.

STATUTE.

Until the Judiciary has fixed the meaning of a doubtful law, upon which rights
have become vested, it may be explained by legislative enactment. 0' Conner v.
Warner, 223.

STAY OF EXECUTION.

Upon a judgment on a recognizance to obtain a stay of execution, the defendant
is entitled to a stay of execution. Wolfe v. Nesbit, 312.

STEAMBOAT.
SHIP, 1.

SUBROGATION.

PRINCIPAL AND SURETY, 1.

1. The purchase of a debt entitles the purchaser to all the creditor's securities
for it. Foster v. Fox, 92.

2. A vendor having brought an ejectment to enforce the payment of a balance
of purchase money, obtained a judgment ; after which a creditor of the vendee paid
the money due, and took a transfer of the debt : held, that he was also entitled to
the judgment, and might revive it for his own use, and thus enforce the payment
of the money against the purchaser of the vendee's interest at sheriff's sale, al-
though he had subsequently received a conveyance from the vendor. Ibid.

SUPERVISOR.

Upon the settlement of the account of a supervisor, whose term of office has ex-



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