103

3. It seems, the court will not in-19.
quire whether after the appoint-
ment of the arbitrators, the
party had legal notice of their
time and place of meeting, if!
the report of the arbitrators
state that he had legal notice.
Kirk v. Eaton.
4. If the prothonotary fixes the
time of meeting of the arbitra-
tors at a period less distant
than the law prescribes, in
the absence of the opposite
party, and without his agree-
ment, the judgment is errone-
Ib.
5. It need not appear in the pro-j
ceedings of arbitrators, that they
met on the day appointed for
their meeting. It seems the court
would presume, where nothing
appeared to the contrary, that
their first meeting was on the
day appointed. Kimble v. Saun-
ders.

ous.

193

6. It is not error that it does not
appear in the proceedings of ar-
bitrators, that the parties at-
tended, or any hearing was had,
or that the arbitrators were
sworn or affirmed. Negley v.
Stewart.
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.

207

The award of arbitrators in ac-
count render, under the act of
30th March, 1821, must contain
an account, showing the balance
resulting in the sum awarded,
otherwise it is bad. Wright v.
Guy.
8. In account render between part-
ners, an award of referees, ap-
pointed under the act of 1705,
of a sum of money to the plain-
tiffs, payable by instalments, is
good. Geary v. Cuningham.

230

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.

It need not appear in the proceed-
ings, that such appointments
were made without consulting
the party present.
An arbitrator present declining

to act, because he conceives
himself interested, may be con-
sidered 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

ASSAULT AND BATTERY.

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 I award is at an end. Miller v. Umbehower. 31

ASSESSOR.

See OFFICER, 1. EVIDENCE, 18.

ASSIGNMENT IN TRUST
FOR CREDITORS.

2.

3.

1. Assignment in trust, to pay creditors of the first class their debts, creditors of the second class their debts, the payment to be rateably made in proportion to their respective demands, and creditors of the third class, in the same terms as those of the second provided that no creditor should be entitled to receive a dividend unless he executed a release in 30 days. There being funds sufficient to pay the creditors of the first and second class in full, and a dividend to those of the third class. Held, that a creditor of the first class not releasing, was not entitled to judgment. Wilson v. Kneppley. 439

ASSIGNMENT.

See EVIDENCE, 5. FRAUDULENT
CONVEYANCE. INSOLVENT.

by 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. 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. Leas v. James.

307

ASSUMPSIT.

See JOINT SUIT.

1. One tenant in common cannot

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 thej 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. 317

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

ATTAINDER.

5.

1. The land of one attainted of treason by the act of the legislature of Pennsylvania of the 6th March, 1778, is not restored to him or his heirs by the 6th article of the treaty of peace with Great Britain, though the state has not sold the land, nor even known its position. Dietrick v. Mateer.

151

BARON AND FEME.

See HUSBAND AND WIFE.

BILLS OF EXCHANGE AND
PROMISSORY NOTES.

See ALTERATION, 1, 2.

1. A note discounted in the Swatara Bank is not to be considered as a specialty in the distribution of assets. Wolfersberger v. Bucher.

10

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.

7. In an action by the indorsee against the maker of a promissory note, the handwriting of the Ib. indorser must be proved.

BLANK.

See ALTERATION.

BOARD OF PROPERTY.

1.

The board of property are public agents with a limited authority, and if they exceed the power given them by the acts of assembly, in granting an island, their acts are void. Hunter v. Howard. 243

defendant subscribed for three shares in the books of the company, prima facie evidence of

such certificate having been for- See JOINT SUIT. ACCOUNT Render. warded to the governor. Grayble v. York, &c. Turnpike Compa-1. ny.

269

COSTS.

121

1. A judgment for costs given un-
der an existing law, is not affect-
ed by a subsequent repeal of the
law. Bechtol v. Cobaugh.
2. On appeal by a defendant from
a justice of the peace, if the plain-
tiff recovers less in the Common
Pleas, than he did before the jus-
tice, and the defendant has pro-
duced evidence which he did not
give before the justice, the plain-
tiff will recover his costs before
the justice, but each party must
pay his own costs on the appeal.
Kimble v. Saunders.

193

COVENANT.

See DEED. INDEMNITY.

DAMAGES.

DEBT.

See PLEADING, 1. JOINT SUIT, 1.

See ARTICLES OF AGREEMENT. AL-
TERATION, 1.

See DOWER. EVIDENCE, 17.

See DECLARATION, 1. NEW TRIAL. A deed from a person who has no

written title but claims by settlement, cannot be read in evidence if it clearly appear that he never resided on the land. Hoak v. Long. 9

2.

By conveyance of a mill, the whole right of water enjoyed by the grantor as necessary to its use, passes along with it, as a necessary incident. And the grantor cannot by a conveyance of another lot of ground through which the stream passes, impair the right to the use of the water already vested in the first

DEATH OF PARTY.

See ASSAULT AND BATTERY.

ADMINISTRATOR.

See ASSUMPSIT, 2.

DECLARATION.

Where a suit was brought in 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.

DEED.