ACCOUNT RENDER,
See ARBITRAMENT, 3, 4.

ACT OF ASSEMBLY,
See PENAL LAWS.

ACTION.
1. Where a defendant, who had
been sentenced by a Court of
Quarter Sessions, upon a convic-
tion of fornication and bastardy,
to the payment of a certain gross
sum to the mother of the child,
and also to the payment to her of
a weekly sum for a certain term,
applied for and obtained a dis-
charge of his person under the
insolvent act, it was held that the
mother might maintain an action
of debt upon the sentence of the
Quarter Sessions, to recover the
amount ordered to be paid to her.
Hellings v. Amey.
63

2. The defendant in such action
having pleaded payment, with
leave to give the special matters
in evidence, it was held that the
plaintiff was not bound to prove
the averment in her declaration,
that she had maintained and sup-
ported the child during the term,
for which the defendant was liable
to pay, by the sentence of the

ing three daughters, one of whom
A., was married to B. By three
several deeds the land was parti-
tioned between them; but the
deed to B. and his wife, recited,
that on the death of her father,
her share descended to B. and
conveyed one-third to him, his
heirs and assigns. After the death
of B., his widow borrowed money,
and gave a sealed note for pay.
ment, upon which judgment was
entered; and then she died. C.,
the son of A. and B. became ad-
ministrator, both of his father and
mother, and applied to the Or.
phans' Court for the sale of the
land, as the property of A. to pay
her debts. The court refused the
application, on the ground that it
was the property of B. The land
was afterwards sold by virtue of
proceedings on a mortgage given
by A. and B; the suit on the
mortgage being against C. as ad.
ministrator both of A. and B. The
balance of the purchase money,
after paying the mortgage, was
brought into court, where it was
directed to be paid to C. " admin.
istrator, &c. as aforesaid," and
was received by him. In a scire
facias, on the judgment above men-
tioned, brought against C., as ad-
ministrator of A. it was held, that
C. must be taken to have received
the
money as administrator of A. ;
and, consequently, that he was

1.

2. In actions ex contractu, so long
as the plaintiff adheres to the ori-
ginal instrument or contract on
which the declaration was found-
ed, an amendment making an al-
teration of the grounds of recove-
ry on that instrument or contract,
or of the modes in which the de-
fendant has violated it, is admissi-
ble. Per SERGeant, J. Ib.
3. In actions ex delicto, the rule is
the same: The foundation of the
complaint laid in the declaration
must be adhered to; although the
mode of stating that complaint, 2.
may be varied by an amendment.
Per SERGEANT, J.

Ib.

4. A plaintiff having declared in tro-
ver for a bond, the case was re-
ferred, under the act of 1810, to
arbitrators, who made an award
in favour of the plaintiff, from

cause of action from that original-
ly stated, is not within the act of
1806, and therefore it is discre-
tionary with the Court to which
it is offered to admit or reject it;
and their decision in relation to it
is not subject to revision upon a
writ of error.
lb.

APPRENTICE.

apprentice cannot maintain an
action against his master to reco-
ver compensation for extra work,
done by him for the latter, during
the term of the apprenticeship;
although the work was done upon
the express promise of the master
to pay for it. Bailey v. King.

Where it appears, by the record
of the court below, that a case
was referred, under the act of
1705, to three persons, and that
on a subsequent day, one of them
having declined to serve, another
person was appointed in his place,
it will be presumed in the absence
of contradiction by the record,
that the substitution was made
with the consent of both parties.
Browning v. M'Manus. 177

Exceptions to an award, under
the act of 1705, arising from al-
leged want of notice to the party
making the exception, and the
like, must be made in the court in
which the action was brought,
and will not be considered in this
court.
Ib.

being the substitution of a different

between partners, a reference was
made under the act of 1705, to
three persons, who were "to state
an account, and hear and deter-
mine all matters in variance be-
tween the parties in the suit.”
Held, that it was not a valid ex-
ception to the report of referees,
that it included matters not pro-

perly cognizable in an action of
account-render. Odenwelder v.
Odenwelder.
108

4. It is not a valid exception to a
report of referees, in an action of 1.
account-render between partners,
that they have not disposed of cer-
tain of the partnership effects, or
of the outstanding debts due to the
firm, but left them for future dis-
tribution.
Ib.
5. Real estate settled to the separate
use of S., a married woman, was
sold by the sheriff on a judgment
against her and her husband in an
action of tort, and purchased by
A. who after receiving his deed,
commenced proceedings under the
act of 1802, before two justices,
to obtain possession. B., the trus- 2.
tee of S. claimed title, and the
justices stayed proceedings. B.
neglected to prosecute his claim
at the next Court of Common
Pleas; and pending an application
to the Court to be allowed to file
the record nunc protunc, an agree-
ment was signed, headed with the
name of A. as plaintiff, and the
husband and wife, defendants, and
entitled as of the proceedings be-
fore two justices, and signed by
the attorneys for the plaintiff and
defendants, and by B. the trustee ;
by which it was agreed that the
question, whether the plaintiff, as
sheriff's vendor, was entitled to
possession, should be referred to
three gentlemen of the bar; and if
it should be determined, that he
was so entitled, B. was to surren-
der possession without further de-
lay or controversy, &c.: The re-
ferees awarded that A. as sheriff's
vendee was "entitled to the pos-
session of the property in dispute.'
In ejectment by B. against A.
(who had obtained possession,) it
was held, that this award was not
conclusive of the title to the pre-

3.

mises, so as to prevent a recovery
by B. Pullen v. Rianhard. 514

408

223

A. being indebted to B. endorsed
certain notes for his accommoda-
tion, which were discounted by
the bank of P. Shortly afterwards
A. made an assignment for the
benefit of creditors, stipulating
for a release, which was executed
by B. but not by the bank. Then
B. also made an assignment, stip-
ulating for a release which was
executed by the bank. The as-
signee of A. made a dividend of
50 per cent. which was paid to
the bank among others, as a cre-
ditor upon the notes. The assig.
signees of B. made a dividend of
75 per cent. and paid the bank 50

per cent. on the notes; and at the
request of his creditors, his as-
signees re-assigned the remaining
property to him. In an action by
B. against the assignees of A., it
was held, that he was entitled to
recover 50 per cent. of the debt
due him by A., deducting the
difference between the 75 per
cent. the dividend payable upon
the notes by the assignees of B.
and the 50 per cent. actually paid
by them to the bank. M'Leod v.
Latimer.
532

And see EXECUTION, 1.

to sell all his real estate, goods
and chattels, and to pay the pro-
ceeds, together with all the mo-
neys coming to their hands after
the payment of his just debts,
funeral expenses and legacies, to
two persons whom he appointed
guardians for his son, and whom
he directed to invest the money
and to apply the interest thereof,
to the maintenance and education
of his son during his minority,
and to pay the principal to him
on his arriving at the age of
twenty-one years. But in case he
should die before his arrival at
that age, he gave the same to the
children of a brother and sister in
Scotland. In the same clause
with the directions to executors
to sell, he declared his will to be
that his houses should be rented
out" until the same shall be sold
as aforesaid." The houses were
not in fact sold. The son of the
testator arrived at the age of twen-
ty-one, and died about a year
thereafter, having made a will
in which he devised one of the
houses to A., "her heirs and as-
signs," and the other to B. with-
out words of inheritance: Held,
1. That the real estate of the tes-
tator was in equity converted into
personal, by the directions of his
will, and continued so during the
minority of his son: 2. That the
son was to be considered as hav.
ing elected to take the houses as
real estate, and that B. took only
a life estate in the house de-
vised to him. 3. That the elec-
tion to take as real estate operated
as a new acquisition, and not to
cast the descent upon him as from
the part of his father; and conse-
quently, that the reversion in fee
of the house devised to B. vested
in the heirs ex parte materna as
well as those ex parte paterna.
Burr v.
Sim.

252