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cancel it upon an event which has oc- have been substituted. Ruston v. Dun-
curred since the judgment. Hartzell woody.
v. Reiss.


3. A cause in which the commonwealth
3. It seems that in an action on the case is interested, is not entitled to a pre-

in the nature of a writ of conspiracy, ference, unless it is asked by the com-
it is not necessary to declare that the monwealth. Turnbull y. The Common-
conspiracy was without probable cause; wealth.

“ falsely and maliciously, is enough.”

4. A rule to shew cause of action is well
Griffith v. Ogle.


served upon the plaintiff's attorney.
4. A count charging man and wife upon Hutcheson v. Johnson,

a joint assumption, in consideration of

5. The affidavit of a party may lay a
money had and received by them to

ground for a rule to shew cause, but it
the plaintiff's use, is bad. Grasser v.

cannot be heard upon the argument on

the rule. Hoar v. Mulvey.

5. In slander the declaration is good,

6. If to debt on a bond the defendant
though it charge that the defendant

pleads payment, and attempts to de-
spoke certain words in substance as

feat the bond by giving evidence of
follows, &c. Kennedy v. Lowry. 393

fraud, want of consideration, &c. but
fails, and makes no set-off, judgment

shall be entered for the penalty, with

leave to take out execution in the first

instance, for as much as was due at the
See SET-OFF, 2. 3.

commencement of the action. For •
payments accruing afterwards, the

plaintiff must move the court for exe-

cution, when the defendant may make

any defence other than tbat which has
If the sheriff, with the money raised by

been tried, and arising subsequent to

an execution upon land, pays off mort-

the suit. Sparks v Garrigues.
gages or judgments which had a lien 7. It is not necessary to entitle a party
prior to the judgment under which the

to a special jury, that the attorney
sale was made, he is entitled to pound- should certify that it is not intended
age upon the amount so paid, though for delay. Lessee of Neff v. Neff. 350.
it should exceed the real debt in the
execution. Petry v. Beauvarlet.

8. If the judgment of a justice of the

peace is affirmed in the common pleas,
for want of exceptions in time agree-

ably to the rules of that court, the su-

preme court will not hear objections

to it. Dubosq v. The Guardians of the
1. A preference must be asked for the Poor.

commonwealth causes, upon the first 9. Judgment may be arrested for an er-
day of the jury period. Commonwealth ror on the face of the record, although
v. Pascalis.

37 it was not assigned at the time of filing
2. The court will not permit a rule of re-

the motion, or of entering an appeal.
ference to be struck off, after there

Grasser v. Eckart.

has been a meeting of the referees, 10. The court will hear more than two
and the parties have proceeded before counsel of a side, where there are
them in the controversy; notwithstand- other parties than those on the record,
ing since the meeting, one of the par- who have agreed to be bound by the
ties is dead, and his representatives court's decision. Frazer v. Tunis. 255.

-*1. The rule of court requiring ten days'

notice in writing before the next term,
of an intended motion for a new trial
in a cause tried at nisi prius, applies
to causes tried at nisi prius in the
county of Philadelphia. Henry v. Ken-

12. A variance between the writ and

count is immaterial by the practice
in Pennsylvania. Jennings v. Cox. 588

appointment would be made, is not
such an exercise of the mayor's dis-
cretion as the law will warrant, and
the court will give leave to file an in-
formation in the nature of a quo war-
ranto against the inspectors so ap-
pointed. The Commonwealth v. Doug-




See PRACTICE, 2. Costs, 2.

A party while attending an appeal from 1. A report of referees may without
the court of another county to the

consent of parties be sent back to the
supreme court, is privileged from same referees, for the purpose of cor-
the service of a summons. Miles v. recting informality. Lessee of Snyder
M Cullough.
77 v. Hoffman.

2. Exceptions to a report of referees

must point out some plain mistake in

fact or in law, otherwise the court

will not investigate the merits of the
An act of assembly directs that “ from

report. Lower Dublin School y. Paul.
6 and after the passing of the act no

shall be subject to prosecu-

3. Part of a report of referees
“tion by indictment," for a particular



confirmed and the residue set aside.
offence. Held that it puts an end to a

But the court cannot strike out a part.
prosecution commenced and carried
to conviction before the passing of the

Woglam v. Burnes.

act, but in which no judgment had 4. To entitle a party to demand of refe-
been pronounced. Commonwealth v. rees an allowance of time to produce

601 testimony, he must shew them what

it is, why he is not able then to pro-

duce it, and that he expects to obtain

it in a reasonable time. Latimer v.


5. If the oath directed by the act of 21st

March, 1806, to be administered to

referees, is dispensed with by the par-

ties, there is no necessity that their

award should be under seal. Graham
An act of assembly vests the appoint- v. Hamilton.

ment of inspectors of the prison in
the mayor and two aldermen of the
city, and two justices of the county of

Philadelphia, and directs it to be ex-
ercised on a certain day. An appoint. The regulation of a lot by regulators
ment made in a clandestine manner, under the act of 9th March, 1771,
after a refusal by the mayor to make from which no appeal is entered to
known to certain aldermen and jus- the next common pleas, is conclu-
tices the hour and place at which such sive as to the foundations and party

walls of buildings erected conform- After the death of B. and C. the exe-
ably thereto, but not so as to the lines cutors of C. who was surviving part-
of the lot on which there are no build- ner obtain judgment against the de-
ings. Godshall v. Mariam. 352 fendant and the garnishee. B. and C.

were the indorsers of a note which

was discounted by D. and which fell

due after their death, and was pro-

tested for nonpayment. The debt to
1. A survey under a renewed warrant

D. by B. and C. cannot be set off
issued from the land office of Mary- against the debt due by D. as gar-
land in 1762, if the land is the same

nishee of A. to C.'s executors. A.'s
called for by a warrant before 4th

debt upon the death of B. and C. be-
July, 1760, relates to the time of the

came vested in their creditors gene-
original warrant. Lessee of Ross v.

rally, whose rights cannot be changed


by any subsequent proceedings be-
2. An assignment to a trustee for the tween the executors and garnishee.
benefit of all the creditors of the as-

Cramond y. The Bank of the United
signor, not made known to the trus-


tee until four days after its execution, 2. The assignee of a policy of insurance,
when he accepts, takes effect from its
date. The acceptance of the trustee

takes it subject to all defalcations to
is presumed until his refusal ap-

which it was liable before the assign-

ment. Rousset v. The Insurance Com.
pears. Wilt v Franklin.

pany of North America.


3. In a suit by the assignee of a policy

of insurance, the insurers may set off
See SURVEY, 6.

a debt due by the assignor at the time
of effecting the policy though it be

an open policy and the claim for a

partial loss.







The record of a judgment by a justice

of the peace still remains before him,
and may be the foundation of a scire fa-
ciaš after a transcript has been filed
in the common pleas, Drum v. Sny.


1. The sheriff cannot make a lumping

sale of distinct parcels of property
which he has taken in execution. He
should sell them distinctly. Rowley v.

2. If the sheriff with the money raised

by an execution on land, pays off
mortgages or judgments which had a
lien prior to the judgment under
which the sale was made, he is enti-
tled to poundage upon the amount so
paid, though it exceed the real debt in
the execution. Petry v. Beauvarlet.

3. In an action against the sheriff for the

misconduct of his officer in the exe-
cution of a writ, it is not necessary to


See Orphan's Court, 2.
1. A. is indebted to B. and C. partners in

trade, who issue a foreign attachment
against his effects in the hands of D.


shew a particular warrant to the offi- signedly from the point in question,
cer; this is necessary only in the case for the purpose of uttering them.
of a bailiff; but in Pennsylvania there

are no bailiffs, their place being sup-

5. To say of a man "he has sworn false"
plied by deputies whose authority is

is not actionable, the colloquium be.
sufficiently shewn, by proof of a ge-

ing of an extrajudicial affidavit before
neral privity with the sheriff. Ha-

a justice of the peace. Shaffer v. Kint-
zard v. Israel.

4. The sheriff is answerable for the mis-

6. Words laid in the second

person are
conduct of his deputy, whether he re-

supported by evidence that they were
cognises and adopts his acts or not.

spoken in the third. Tracy v. Harkins.

5. A jury may give exemplary damages

against a sheriff for the misconduct
of his deputy.


8. If a deputy sheriff enters the house

A claim against an intestate's estate for
of an administrator to look for goods

damages on account of the breach of
of the intestate, and afterwards pro-

articles of agreement under seal, is a
ceeds to levy upon the goods of the

debt by specialty within the meaning
administrator from whom nothing is of the 14th section of the act of
due, he is a trespasser ab initio.

19th April 1794. Frazer v. Tunis.

7. Where the sheriff levies upon goods

in the defendant's possession, the
court will not stay proceedings and

direct an issue to try the property,
upon an allegation that the goods be- The surety in a customhouse bond is
long to a third person. Insurance Com- entitled to priority of payment out of
frany of Pennsylvania v. Ketland. 499 a bankrupt's estate for both principal

and interest of the sum paid by him

to the United States. Champneys v.



1. In an action of slander, the defendant

may give in evidence, in mitigation
of damages, that a third person told
him what he related. Kennedy v. Gre-

2. In slander the declaration is good,

though it charge that the defendant
spoke certain words in substance as
follows &c. Kennedy v. Lowry. 393
3. To call a clergyman a drunkard is

actionable M Millan v. Birch. 178
4. Words spoken by the defendant of

and to the plaintiff before a church
presbytery, in the course of his de-
fence against charges there brought
against him by the plaintiff, are not
actionable, if he did not wander de-

4 M

1. The supreme court has no authority

to moderate or remit a recognisance
of good behaviour that is forfeited by
an act out of court. Commonwealth v.

2. It is most agreeable to the spirit of

the constitution, to adopt it as a gene-
ral rule not to demand surety of
good behaviour before conviction.
Commonwealth v. Duane.



1. It is not essential to the validity of a

survey of a body of lands, that the


1. The record of the proceedings upon

an appeal from the circuit court,
which by law is directed to be filed
before the next term, is in time if
filed before the court meets on the
first day of the next term. Vanlear v.

2. Two years after the pacification by

General Wayne's treaty with the In-
dians, is a reasonable time for mak-
ing a settlement, which has been
prevented by the enemy. Lessee of
Hazard v. Lowry.

3. The day on which the verdict is

given, is computed as one of the
four days which are allowed to move
for a new trial. Lane v. Shreiner. 292

lines of each tract should be marked
on the ground. It is sufficient if the
surveyor has marked lines enough to
identify the particular tracts. Woods
v. Ingersoll.

2. The proviso in the 9th section of the

act of 3d April 1792, which excuses a
settlement in case of prevention by
the enemy, also excuses a survey.

Lessee of Hazard v. Lowry. 166
3. If a survey has been duly made under

legal authority, and the land surveyed
remains open to purchasers, a war-
rant coming afterwards to the hands
of the deputy, may be applied by him
to the survey already made, without
running and marking the lines anew.

Lessee of MRhea v. Plummer. 227
4. A survey on what is called a shifted

location, is good against a person who
had notice of it before the com-
mencement of his title, even though
the survey was not returned. Lessee
of Kyle v. White.

5. It is no objection to a survey made

before the year 1767, on lands pur-
chased from the Indians in 1754,
that 562 acres were surveyed upon

two warrants for 100 acres each. 246
6. A survey under a renewed warrant

issued from the land office of Mary-
land in 1762, if the land surveyed is
the same called for by a warrant be-
foe 4th of July 1760, relates to the
time of the original warrant, and is
protected by the agreement between
the proprietaries. Lessee of Ross v.



If a deputy sheriff enters the house of

an administrator to look for goods of
the intestate, and afterwards proceeds
to levy upon the goods of the admin-
istrator from whom nothing is due,
he is a trespasser ab initio. Hazard v.



A trust estate in Pennsylvania descends

in case of intestacy to the heir at
common law. Lessce of Jenks v. Back-




Unless the surveyor marks all the lines

of each tract, in a body of lands, he is
not entitled to the full compensation
given by law. Woods v. Ingersoll.



See ExecuTOR, 3. 4.

1 A. as agent for B. and to secure a

debt due to him, takes a mortgage of
real estate in his own name from the
debtor, and then obtains a release
of the equity of redemption. A. re-
tains the title deeds, and B. receives
the rents and profits. Afterwards A.
lends his notes to B. and finally takes

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