.OF PENNSYLVANIA. March Term 1796. A Febeiger's Lessee versus Craighead. -T a Court of Nisi Prius, held at Carlisle, a case was stated for the opinion of the Court, containing these facts: A tract of land, in Cumberland county, was mortgaged by John Glenn, to the trustees of the loan office (whose rights, powers, and duties, have been transferred by law to the plaintiff, as state treasurer) and the land was afterwards levied upon, and sold at a sheriff's sale, to the defendant, by virtue of a subsequent judgment and execution. The question is, whether the mortgage remains a lien upon the land, against the purchasor at sheriff's sale? By the COURT: The case admits of no doubt. Judgment must be entered for the plaintiff Ingersoll, attorney-general for the plaintiff. Bank of North America versus Wycoff. CASE, by the indorsee against the payee and indorser of promissory note, drawn by Joseph Harrison. The question was, whether the defendant had received notice within a reasonable time, of the non-payment of the note by the drawer? Jacob Lawerswyler, the runner of the bank, was called as a witness to prove the notice; but, after a long examination. in chief, he stated, on his cross examination, "that he was the executor of Jacob IVinney, a stockholder in the bank of Nortl "America; and was entitled to a share in the residuum of the "testator's estate." The 1796. The defendant's counsel then objected to the competency of the witness, on account of his interest in the bank. They insisted, that although this appeared after a cross examination, it was sufficient for the rejection of his evidence altogether; and, that, consequently, as there was no proof of notice, independent of his evidence, the plaintiff must be nonsuited. The COURT concurring, clearly and explicitly, in the opinion of the defendant's counsel, The plaintiff suffered a nonsuit. Bell versus Andrews, HIS was an action on the case, to recover damages, for the to and convey to plaintiff, in fee simple, a tract of land in Westmoreland county. The plaintiff offered parol evidence of the agreement, as stated in the declaration; of a payment of the price of the land; of the defendant's subsequent acknowledgment of the sale and payment; and of the defendant's refusal to execute a conveyance. The defendant objected to any proof of a parol agreement, for the sale of lands in fee simple, as the act for prevention of frauds and perjuries (1 State Laws, 640. Dall. edit.) required, expressly, that all such agreements, to have the full effect, must be put in writing, and be signed by the parties, or their agents. But, by the COURT: The payment of the consideration money, may, certainly, be proved by parol evidence. The agreement, being then executed by one of the parties, is not affected by the act of assembly; and it is settled, that the English statute against frauds and perjuries, was never extended to Pennsylvania. The act of assembly does not make a parol agreement, for the sale of lands, void; though it restricts the operation of the agreement, as to the acquisition of an interest in the land, and no title in fee simple can be derived under it. But, certainly, an action will lie to recover damages for the non-performance of such an agreement. The objection to the evidence over-ruled. OF PENNSYLVANIA. December Term 1797. Stroud, Assignee, &c. versus Lockart et al. SCIRE facius on a mortgage. The mortgage had not been recorded, conformably to the act of assembly; and Lockart had purchased the premises. But, on the trial, the plaintiff proved, that Lockart knew of the existence of the mortgage at the time of his purchase, and said he would have to pay it, although it was not then recorded. By the COURT: The case is too plain for controversy. The plaintiff must have a verdict; and all the trouble of the jury will be to calculate the interest. Verdict for the plaintiff. Seagrove versus Redman et al. HE plaintiff resided in the Havanna, and was the agent of the defendants in fitting out a privateer for them, during the war. On the trial of this cause, he produced, and swore to the authenticity of, his book of original entries (some of which were made in his own hand-writing, and some in the hand-writing of a clerk) to prove the disbursements for the privateer. And the COURT admitted the evidence, after opposition, upon the principle, that as it related to a mercantile transaction, which took place in a foreign country, a relaxation of the strict rules of the common law, was reasonable, just, and necessary. OF PENNSYLVANIA. December Term 1798. in Nicholson's Lessee versus Wallis. HIS cause had been decided, by the board of property, in cause favour of the defendant, upon a caveat, respecting lands Northumberland county, on the 14th of February 1796; but the patent was staid for six months, within which time, the party is allowed, by the act of assembly, to enter his suit, at common law, in the nature of an appeal. 3 State Laws, 213. s. 11. Dall. edit. For that purpose, a declaration in ejectment was framed, entitled as of April term 1796; it was served by a private hand (not the sheriff) on the defendant, in Philadelphia, on the 10th of August 1796; and it was entered on the docket of the Supreme Court, on Saturday, the 20th of August 1796: but the Court had risen (contrary to the usual practice, and the expectation of the bar) on the preceding day, when, of course, the term ended. In April 1797, a rule was obtained, by the defendant, to show cause, why the ejectment should not be struck off the docket; on the ground, that it was not entered, within the six months allowed by the act of assembly. And, upon the argument, in chief, at the present term, it was contended, that the cause was not in the possession of the Court, until the process was returned. 6 T. Rep. 617.; that, in the case of the sheriff, the Court might have called for a return, but not in the case of a special agent, employed by the plaintiff to execute a writ; 4 T. Rep. 119.; and that a service of the declaration in ejectment upon the defendant, is not an entry of the suit, within the terms, or meaning, of the Law. The plaintiff's counsel, urged the injustice, that would be done, by a mere matter of accident and surprise, if the rising of the Court, a day earlier than the usage, should be the ground of quashing the present suit. They further insisted, that the ser vice of the declaration in ejectment upon the defendant, was a 1798. commencement of the suit within six months, according to the spirit and intention of the law; that the declaration was the only process in ejectment; 2 Sell. Pr. 164. that it might be served on the tenant himself, in any place; though if the service was on a wife, or servant, it must be on the premises; 2 Cromp. Pr. 165. Runn, Eject. 155. that the sheriffs of the several counties were now obliged, by law, to serve declarations in ejectment; 3 State Laws, 170. s. 10. Dall. Edit. that the return is the certificate of the sheriff, stating what has been done touching the execution of the writ; Compl. Sheriff, 144. Dall. 162. and that the proceedings of a special bailiff, being recognised by law, as a competent person to serve the process in ejectment, must be as effectual as the proceedings of the sheriff. After consideration, the COURT were of opinion, that the cjectment was well brought, within the six months allowed by the act of assembly: and ordered that the rule to show cause be discharged. TH Rule discharged. Keppele et al. versus Carr et al. Carr et al. versus Keppele et al. HE case was, briefly, this: Kepple and Zantzinger, Philadelphia merchants, being indebted to Carr and Sons, English merchants, for goods sold and delivered, bought a bill of exchange from John Swanwick for the amount, drawn in their favour and indorsed by them; delivered the bill to one of the partners of Carr and Sons, who was in Philadelphia, but who expressly refused to remit it, on the account and risque of his house; and informed Carr and Sons by letters, dated, respectively, the 20th of May, and 20th of June 1796, "that the "bill, when paid, will be in full for merchandize (high charged) "to our G. Keppele, by your invoice dated the 31st of March 1795." The bill was duly presented and protested for non-acceptance, on the 27th of June, and for non-payment, on the 29th of August 1796; and, on its being returned with the protest, notice was rcgularly given to the drawer and indorsers. Keppele and Zantzinger then (about the 5th of November 1796) tendered to Carr the principal and interest of the bill, and demanded restitution of it, with the protest; but Carr refused to accept the tender, or to deliver up the bill; saying "that he would settle the bill him"self with Swanwick:" whereupon Zantzinger declared, "We "shall consider the bill at your risque, from this day." Carr then entered into an arrangement with Swanwick, took his promissory note for principal, damages, and charges, and delivered to him the hill and protest. Before the note became due, Swanwick |