Supreme Court of Penn'a.--Eastern District--Phil'a.

Reported for the American Law Journal by R. C. M'Murtrie, Esq.

ABSTRACTS OF DECISIONS.

APRIL 7, 1849.

The Court refused to quash an appeal from the Nisi Prius for want of a certificate signed by the judge who tried the cause-the proceedings in other respects being regular. Erb v. Scott.

APRIL 11.

A. claiming title entered upon land the owners of which were beyond seas, and held adverse possession until 1828. B. purchased a distinct title and entered. Held that as possession was not adverse to the absent owners until the act of 1815, and as it ceased before the expiration of the fifteen years allowed by that statute, his title was not perfected; and B. not claiming A's title could not tack his subsequent possession to that of A. so as to complete the period required by the statute as a bar. Moore 1. Collishaw.

A tenant in common mortgaged the whole estate and remained in actual possession. If the intention was not to hold adversely to her co-tenant, the mortgage does not operate as a constructive ouster, and there being evidence that her intention was not to oust her co-tenant, whether there was a constructive ouster was for the jury. Ib. Per Bell, J. APRIL 16. his wishes as to

A. in his last sickness called B. to him and declared the disposition of his estate, and directed B. to write it down as his will and called upon two persons to bear witness that that was his will. B. made a pencil memorandum of A's intention and A. died in one hour afterwards, but continued sensible to the last. Held, there was no proof of a nuncupative will. Porter's Appeal.

APRIL 17.

Devise in a will before the act of 1833 of a plantation "to my wife for life, and at her decease to descend on my three daughters, or the survivors of them in joint stock, share and share alike—the personalty to descend to my three daughters in the same manner and on the same principle as my real estate." Held, to pass the fee to such of the daughters as survived the testator: there being also a devise without words of limi

tation of a part of the land to be sold, the proceeds to be distributed.— Johnson v. Butler.

Testator devised lands to his wife for life and at her death to his daughter in fee, subject to the payment of a legacy to his grandson, which he directed should be paid by his daughter in one year after the death of his wife. The legacy is vested in interest immediately, but the enjoyment is postponed until the period indicated in the will. Maxwell v. McClintock.

The Orphans' Court need not refer a matter to an auditor, when the facts are such that they are able to determine them on the pleadings and depositions. Ib.

APRIL 19.

A settlement of an administration account in which the administrator claims credit for a certain sum retained for the use of A, one of the distributees of an estate of which his intestate was administrator, is some evidence that A was then living, to rebut the presumption of her death arising from her absence for seven years unheard from. Keech v. Rinehart.

So of the Sheriff's return to proceedings in partition in the Orphans' Court by a co-heir of A, who was there named as one of the heirs, certifying that the parties were severally warned. 16.

A stranger cannot appeal from a decree of the Register granting letters of administration of the estate of one who has been dead more than twenty-one years. And an administrator holding funds admitted to be due to such decedent is a stranger. Beeder's estate in re.

APRIL 23.

A husband who has received a large estate from his wife and made no settlement on her, and has left her residence, taking with him his furniture and making no provision for her maintenance, is not entitled to receive the interest of a fund bequeathed in trust for her which accrued before the desertion, where it was proved that he had previously treated her with cruelty; and his subsequent requests to her to come and live with him are immaterial. Tyson's Appeal.

Bequest of the interest of a fund to be held in trust for A. wife of B. to be paid to her during life, remainder to her children, creates a separate use in A. lb. Per Coulter, J.

An engine house partly of stone and partly of wood, with the stone foundations for a steam engine erected by a tenant for years, for the use of a coal mine, he having the privilege of removing all fixtures at the expiration of his term, is not the subject of a mechanic's lien. White's Appeal.

A. being the holder of B's notes drawn for value, deposited them with a bank as collateral security for discounts made and to be made for A.

B. then delivered duplicate accommodation notes, to A. who agreed to take up the original notes when B. paid the accommodation notes. B. having notice of the deposite, paid the accommodation notes-but the original notes remained with the bank which after they matured made a discount for A. without notice of the arrangement between A. and B.— The bank is entitled to receive on the notes the amount of the last discount made after their maturity. Spering's Appeal.

A collateral agreement between the covenantor and covenantee in a ground rent deed is no defence to an action of covenant for arrears brought by the assignee of the rent without notice. Patterson v. Juve nal.

APRIL 24.

A purchaser who has received his deed and given a mortgage for the purchase money, may deduct therefrom incumbrances known to him at the time he made the contract. Wolbert v. Lucas.

APRIL 27.

Where a sale by sample was made of tobacco which was stated in the bill of parcels to be superior sweet scented Kentucky leaf tobacco, such a statement affords no evidence from which a jury may infer a warranty that it was either superior or sweet scented. And the seller is not liable in an action ex-contractu if it was Kentucky leaf tobacco, though of a very low quality, ill flavored, unfit for the market and not sweet scented. Fraley v. Bispham.

A letter from the vendee to the vendor avering that goods had been bought under a guaranty that the vendor would reimburse the vendee any loss that might be sustained, together with an enclosed account showing the extent of the loss, not replied to—are no evidence on a count upon an account stated.

APRIL 28.

After an acquittal upon indictment the judge may upon the evidence presented on the trial require the defendants to find sureties for the peace and good behaviour; and commit them until compliance with the order. Bamber v. The Comth.

A sale under a testamentary power for the payment of unscheduled debts discharges the land from the statutary lien of testator's debts. Cadbury v. Duval.

And an executor may purchase from the trustees at such sale. Ib. A. devised the residue of his real estate to B. his wife for life, who was also executrix, and to trustees subject to the life estate in trust to sell and pay debts not otherwise provided for. The trustees conveyed to B. under the power for a consideration mentioned in the deed but not in fact paid. B. mortgaged the land and it was sold by the Sheriff under the mortgage. The mortgage has priority in the distribution over creditors of the testator who have obtained judgment within five years from his death.

MAY 3.

Where a grantor executes and acknowledges a deed before a magistrate, which has been left there for that purpose by the agent of the grantor and grantee, and leaves the instrument with the magistrate without instructions, the delivery is absolute. And instructions given the next day to the agent not to deliver the deed until payment of the purchase money, are immaterial and do not amount to a delivery in escrow-for matters subsequent to an unqualified delivery to a stranger, cannot make a delivery in escrow. Blight v. Schneck.

And where a bona fide purchaser from the grantee, who obtained such a deed without performing the condition, has intervened, the onus of showing that there was no absolute delivery is on the grantor. Ib.

A deed delivered to an agent as an escrow and by him delivered to the grantee passes a title voidable only. lb.

An assignee for creditors may convey by attorney, though there be no special authority given in the assignment to delegate his power. Ib.

HARRISBURG, MAY 24, 1849.

Where, in an action for conspiracy to defame, one count was defective, and the other two valid, and the evidence was all applicable to the two valid counts, although part of it was also applicable to the defective count, it was not error in the Court below to permit the verdict after the lapse of a term from its rendition, to be entered on the valid counts, and to strike out the defective count. Martin v. Haldeman, et al.

A release, not under seal, purporting to discharge one of two sureties in a bond upon receiving his proportion of the debt, does not discharge the other surety, notwithstanding the case of Milliken v. Brown, 1 Rawle 391. Shock v. Hertz's Adm'rs.

Where, after levy on a store of goods, one of the plaintiffs in the execution, in company with his attorney, directed the Sheriff to permit the goods to remain in the custody of Ziegler, one of the partners in the store, who was authorized to continue selling the goods as usual out of the store, but was required to pay the proceeds to the Sheriff, who assented to the arrangement upon condition that the plaintiffs should take the responsibility, and that the arrangement should terminate whenever any other creditors issued execution :-it was held that this arrangement postponed the execution in favor of writs subsequently issued and proceeded on according to law. Per COULTER, J. Bingham & Brothers v. Young & Cassel.

A release executed to render a man a competent witness cannot be impeached on the ground of fraud, by means of proof that such witness obtained the release by representations of facts alleged to be within his knowledge, which he knew at the time to be false, although he afterwards testified to their truth. Grosh v. Bradly.

A By-Law of a beneficial Society which declares that "if any member shall enlist as a soldier in the Army of the United States, he shall lose his membership" does not operate upon the case of a member who united himself to a volunteer company organized under State laws, and afterwards marched with such company to Mexico under the call made by the President for 50,000 volunteers in pursuance of the act of Congress of 1846. Com'th. ex rel. John Arer v. Franklin Beneficial Association.

NEW PUBLICATIONS.

In the arrangement of matter for this number of the Journal, the notices of New Publications were all unavoidably omitted. We hope to have room for them in the next number. Among the publications referred to are the following valuable works :

State Trials of the United States during the administrations of Washington and Adams. By Francis Wharton. Published by Carey & Hart 126 Chesnut street, Philadelphia.

Cruise's Digest of the Law of Real Property, with additions and notes for the American Student, by Professor Greenleaf. Published by Little & Brown, Boston.

Angell's Law of Carriers of Goods and Passengers by land and water. Published by Little & Brown, Boston.

Public Laws of the United States, for 1848-1849-edited by George Minot. Published by Little & Brown, Boston.

The Law of Patents for useful inventions in the United States. By George Ticknor Curtis. Published by Little & Brown, Boston.

In Chancery of New Jersey.

ZACCHEUS B. COOK, Complainant, and ELDAD COOK, CHAS. B. FITHIAN and PHILIP FITHIAN, Ex'rs of Joel Fithian, Defendants.

1. A joint settlement in the Orphans' Court will bind both Executors in Equity.

2. How far one Executor is liable for the acts of his Co-Executor.

WILLIAMSON, C. Eldad Cook, sr., by his will dated the 8th of April, 1809, ordered and directed that a certain part of his real estate should be sold at the discretion of his Executors, and the money arising from the sale be equally divided between his wife, his three daughters and the complainant. Also, that his moveable property should be sold and the money divided between the same persons, after his just debts and funeral charges were