7. If the rule for the appointment. of arbitrators be entered, and the declaration filed the same day, the award is good, and the court will not inquire which was prior in time. The award of arbitrators in account render, under the act of 30th March, 1821, must contain an account, showing the balance It One arbitrator only attending on the first day of meeting has power to adjourn, though one party be absent, and at such adjourned meeting (notice having been given to the absent party,) he, may appoint other arbitrators in the place of those ab sent. need not appear in the proceedings, that such appointments were made without consulting the party present. arbitrator present declining to act, because he conceives himself interested, may be considered as absent within the meaning of the act. Stiles v. Carlisle and Hanover Turnpike Company. 286 ARTICLES OF AGREEMENT. Articles of agreement for the sale of land are evidence, notwithstanding a deed afterwards exeecuted under them, in a suit on bonds given in pursuance of the articles, to show, that the bonds were given for certain lands, and that the articles contained a stipulation that the bonds should not be paid without six months notice, which circumstance was concealed from the defendants, who were sureties in the bonds. Anderson's Executors v. Long. 55 resulting in the sum awarded, ASSAULT AND BATTERY. otherwise it is bad. Wright v. Guy. 2271. In an action of assault and battery, if the plaintiff die after an appeal by the defendant from an award of arbitrators in favour of the plaintiff, his representatives cannot be substituted, and the award is at an end. Miller v. Umbehower. 31 8. In account render between partners, an award of referees, appointed under the act of 1705, of a sum of money to the plaintiffs, payable by instalments, is good. Geary v. Cuningham. 230 ASSESSOR. See OFFICER, 1. EVIDENCE, 18. ASSIGNMENT IN TRUST FOR CREDITORS. by a person claiming title, against one who enters on land as a trespasser, and receives the profits, to recover their value. It seems, that money paid voluntarily by one knowing or having the means of knowing his rights cannot be recovered back by him. Irvine v Hanlin. 3. 1. Assignment in trust, to pay Wilson v. ASSIGNMENT. See EVIDENCE, 5. FRAUDULENT ASSUMPSIT. See JOINT SUIT. 1. One tenant in common cannot 219 Counts in assumpsit stating promises to the plaintiff as administratix, may be joined in the same declaration with counts stating promises to the intestate in his life time. Stevens v. Gregg. 234 The plaintiff cannot recover in indebitatus assumpsit for work and labour, the amount stipulated to be paid him by the defendant by a special agreement, for services to be done, during a certain time, where the plaintiff has not performed the services, but has been discharged by the defendant before the time expires, and is thereby prevented from performing them: he must resort to an action on the special agreement. Algeo v. Algeo. 235 4. If a creditor for goods sold, &c. receive a chose in action as a collateral security, and payment is not obtained from it, he may recover on the general assumption, and is not obliged to resort to an action on the special agreement under which the security was received. Leus v. James. 307 maintain assumpsit against | 5. Declaration in assumpsit against another, to recover back the price of certain ore, paid by the former to the latter, under the mistaken supposition that the latter had an exclusive title to the land where the ore was dug; the proper remedy is account render. Indebitatus assumpsit will not lie executors, stating that the testator covenanted, if he died first, that the plaintiff should have a certain portion of his estate, that such portion came to defendants hands after his death, and that they promised as executors, to deliver it to plaintiff. Held, that sealed articles of agreement between the plaintiff and testa- | 4. If the Directors of a Turnpike tor, by which the latter entered into the covenants stated in the narr, were not evidence. Landis v. Urie. ATTAINDER. 317 10 1. A note discounted in the Swatara Bank is not to be considered as a specialty in the distribution of assets. Wolfersberger v. Bucher. 2. Where the plaintiff was drawer and the defendant indorser, with others, of a promissory note, which the plaintiff paid, the declarations of other indorsers that the parties had agreed to be mutually responsible for the note, are not evidence against the defendant. Slaymaker v. Gundacker's Executors. 75 3. Nor is the evidence of one of the indorsers that the parties were bound in honour to each other, or proving a conversation between him and another indorser, admissible. Ib. 5. Company become the drawer and indorsers of a note on which money is borrowed for the use of the company, and applied to the payment of its debts, they are in the absence of any special agreement, mutually responsible and liable to contribution in case of loss, whether payment be made by one by compulsion or voluntarily. Ib. If, in place of such a note, on which the defendant was indorser, a new note be drawn not indorsed by the defendant which is applied at bank to the discharge of the first, it is a payment of it: but whether it barred the remedy against the defendant for contribution, is for the jury to decide, under all the circumstances. Ib. 6. A note promising to pay A. B. or order 500 dollars in notes of the chartered banks of Pennsylvania, is not a negotiable note, on which the indorsee can sue in his own name. M'Cormick v. Trotter. 94 7. In an action by the indorsee against the maker of a promissory note, the handwriting of the indorser must be proved. BLANK. See ALTERATION. BOARD OF PROPERTY. Ib. CONDITION. 1. If a person to whom land is devised on condition of releasing a debt due by the testator, receives the debt, the title to the land is relinquished, and the receipt of the money from a third person, vests no title to the land in such third person. Yet if such third person takes possession, and is suffered to hold it by the family, and the money was the full value, and the payment was known and acquiesced in by the heir, and improve CONTINGENT REMAINDER. See DEVISE. CONTRIBUTION. See BILLS OF EXCHANGE &c. JUDG MENT. CORPORATION. See BILLS OF EXCHANGE, &c. 1. One who acts as commissioner to receive the subscriptions under an act to incorporate a turnpike road company, cannot when sued by the company, for the amount of his subscription, object that the five dollars per share payable at the time of subscription, was not actually paid by him. The recital in a charter granted under an act of assembly, that certain commissioners appointed by the act to take subscriptions, had done so, and of their certificate to that effect, is, when accompanied with proof that the defendant subscribed for three shares in the books of the company, prima facie evidence of DECLARATION. such certificate having been for- See JOINT SUIT. ACCOUNT Render. warded to the governor. Gray ble v. York, &c. Turnpike Compa-1. Where a suit was brought in 121 1. A judgment for costs given under an existing law, is not affected by a subsequent repeal of the law. Bechtol v. Cobaugh. 2. On appeal by a defendant from a justice of the peace, if the plaintiff recovers less in the Common Pleas, than he did before the justice, and the defendant has produced evidence which he did not give before the justice, the plaintiff will recover his costs before the justice, but each party must pay his own costs on the appeal. Kimble v. Saunders. 193 November, 1818, and one count in the declaration averred, that in consideration that the plaintiff at the special instance, &c, of defendants, agreed to suffer them to occupy certain premises for the term of four years, commencing in August, 1816, and to board one of the defendants, the plaintiff did suffer them to occupy the same for the said term of four years, and boarded one of the defendants, and a general verdict was given. Held, that though on demurrer it would be a fatal objection, that the jury gave damages for a period after the commencement of the suit, yet the defect was cured by verdict. Crouse v. Miller. 155. See DECLARATION, 1. NEW TRIAL. A deed from a person who has no |