Volume 1 — Foster's Pennsylvania Reports (Pittsburgh, 1870–1875)

<p>Rule to show cause why judgment should not be entered for the defendant,</p>

This was an application by sundry inhabitants of the borough of Middleport, to change the limits of said borough by extending the same, taking in about 630 acres of uninhabited land within the limits of the neighboring township of Blythe. On July 7, 1871, the petition was approved by the grand jury, and affirmed by the Court Oct. 2,'1871.

<p>The Court of Quarter Sessions may lay out a new road over part of an old road already laid out and opened. — West Chester Road, 2 Rawle 422, Gibson, C. J.</p> <p>When notice of a view is required to be given to the Town Clerk by the rule of Court, the attendance of the members of the Borough Council at the time of the view, is a waiver of notice.</p> <p>The acts of Assembly of 18 April, 1867 and 21 April, 1870, relative to the Criminal Court of IDauphin, Lebanon, and Schuylkill Counties, do not divest the Court of Quarter Sessions of its jurisdiction in road cases.</p>

<p>1. Authority granted by an act of Assembly to an Insurance company to loan its money, and improve its profits in the purchase of mortgages and stocks, is not a discounting privilege within the meaning of the 25th section, article 1st, of the constitution. The word “discounting,” as used in that section, is to be understood in its banking sense, and is confined to dealing in promissory notes and negotiable paper for less than par value.</p> <p>2. Inquiry cannot be made in a collateral suit as to whether a corporation has forfeited or misused its franchises.</p> <p>3. A mutual fire insurance company, incorporated in 1840, was authorised by an act of Assembly passed in 1861, to make insurances for cash premiums. Held, that the latter act is valid against all persons who became members of the corporation after its passage. Insurance Company v. Ruch & Evans, 4 Legal Gazette 182, approved.</p> <p>4. Members of a mutual insurance company cannot set up. as a defence against the payment of assessments upon their premium notes, for the purposes of paying losses, any delinquencies or failures to perform duty on the part of the officers of the company. They may call their officers to account, or restrain them by proceedings in equity from doing acts to their prejudice contrary to law. If they fail to do this, creditors have the right to hold them as having acquiesced in the management.</p> <p>5. Insurances effected out of the State are as binding contracts as those within the State.</p> <p>6. Where the risks taken by a mutual insurance company arc so great that the premium notes held by it exceed five millions of dollars, and the losses monthly on an average amount to forty thousand dollars, the court in which the judgment has been entered on a premium note given by a member will not direct an issue to ascertain whether the per cent, of the assessment made by the directors to meet losses, might not be reduced a fraction below that laid. Insurance Company v. Lauffer & Hunt, 4 Legal Gazette 153, cited and approved.</p>

In the matter of the rule on William J. Matz, late Prothonotary of Schuylkill County, to show cause why all moneys in his hands received by him as Prothonotary, should not be paid to Hiram. Móyer, his successor.

<p>A petition in the Orphans’ Court under the act of 13 October, 1840, must be presented within 5 years, and is governed by the principles and rules which prevail in Chancery as to bills of recover.</p> <p>If it fail to specify and point out any errors in the account, and omits to aver that the balance as found due in the hands of the Executors has not been paid out and distributed, it is defective and cannot be entertained.</p> <p>Since the passage of the act of 24 February, 1834, relating to executors and administrators, an administrator or executor is only liable for the amount of assets in his hands actually received. He cannot be fixed with a devastavit without assets, and that no mispleading or lack of pleading can prejudice him or make him responsible for more money than actually collected.</p> <p>A judgment against the estate of a decedent does not bind the executor or administrator personally, although he may have omitted to plead. The Orphans’ Court has exclusive jurisdiction over it Burd Executors, v. McGregor Administrators, 2 Grant 3 53, 365</p>

<p>A writing not under seal imports no consideration.</p> <p>Granting time for the payment of debts due, or the payment of a less for a greater sum, on unexecuted agreements, held not to be binding for want of consideration.</p> <p>But the exception to the rule is when two, or more, creditors agree to give time for their respective claims, each acting upon the faith of the others. Such agreements, are binding — the consideration of the contract of each creditor being found in the agreement of the other creditors.</p>

<p>Where the account of- an executor was resettled by an auditor with the consent of all persons interested, it is too late for an executor, having taken the chances of a result in his favor, afterwards to object that the auditor took cognizance of matters not excepted to in accordance with the prevailing usage of auditors before the rule relative to the same was revised.</p> <p>A sale of real estate for distribution under directions in a will of the testator, will convert the proceeds into personal property.</p> <p>When personal property is given generally to a legatee without words of qualification embodied in the very terms of the gift, the legatee is entitled to take it absolutely, although there is a bequest over upon failure of issue in a subsequent part of the will. But when the gift is to the legatee expressly for life with a bequest over, a life interest only passes, and in a distribution the fund can be paid over only upon security given to protect the rights of ulterior legatees.</p> <p>The Orphans’ Court has power to surcharge the account of an executor where the sale has been unfair or made in bad faith, where it has not been made for the highest and best price that could be obtained by proper and reasonable efforts, where there has been fraud, connivance, supine negligence or wilful default, and generally where a wrong has been wilfully done or a duly wilfully neglected.</p> <p>There is no unbending rule as to trustees’ commissions, generally per cent, on really, and 5 per cent, on other amounts, are held to be adequate, depending upon the trouble incurred.</p>

In the matter of the confirmation of the report of viewers appointed to lay out and open a road in Branch Township, Schuylkill •county.

<p>A chartered right to collect toll granted to a corporation by an act of Assembly, is clearly within the provisions of the 26th section of article I. of the Constitution, and may be revoked or annulled by the Legislature.</p> <p>The erection of a toll gate within one mile from the Perkiomen or Manatawny Bridges, is contrary to the 5th section of the act of 20 March, 1810, and therefore illegal.</p>

<p>1. Building fund, loan and land associations, under the provisions of the 6lh section of the act of 12th April, 1859, can enforce the contracts of their members relative to premiums, fines and interest incurred since the passage of the aforesaid act.</p> <p>2. The seizure of goods in execution, and the setting aside of $300 worth of property for each defendant on a judgment containing a waiver, is a satisfaction of the judgment,/?'» tanto so far as the rights of junior creditors are concerned.</p> <p>3. When one judgment creditor has a waiver in his judgment, and another judgment creditor has no waiver, the creditor without a waiver can compel the creditor with a waiver to resort first to the exempted property for payment.</p> <p>4. When a creditor has access to two funds, equity will restrict him to that fund which the other creditors cannot reach.</p>

<p>The issuing of a preliminary injunction upon a bill filed and sworn to, but without any injunction affidavit or affidavits to support it, is a practice which ought not to be countenanced. Kincaid’s appeal, iC P. F. S. 411.</p>

<p>1. The act of May roth, 1871, permitting changes in the form of actions, upon the payment of all cost's up to the time of amendment, by tire party applying for the change, does not refer to appeals from justices of the peace, but only to actions originally instituted in the Court of Common Pleas.</p> <p>2. The act of 1810 requires the Court to decide appeals from justices of the peace upon the facts and merits only, without regard to the form or name of the action.</p>

<p>A child cannot recover from a parent’s estate for services rendered after the majority of the child, without clear, distinct and satisfactory evidence of a contract for wages. —Leidig v. Coover’s Exrs, 11 Wr. 534.</p>

<p>Petition for a mandamus.</p>

<p>An affidavit under the provisions of the act of Assembly of 17 March, 1869, (relative to fraudulent debtors,) alleging the fraud in the words of the statute is sufficient in the •first place to authorize the I’rothonolary to issue the attachment, and a levy made on such writ will hold the property.</p> <p>But for the purpose of enabling the defendant or garnishee to make his defence upon a motion to dissolve or otherwise, the Court or Judge hearing the same will require, upon application, a supplemental affidavit to be filed setting forth the specific facts that constitute the fraud.</p>

Rule on the defendant to show cause why the appeal (by defendant from award of arbitrators finding’ in favor of the plaintiff $1,875.77) should not be stricken off for the n:n-payment of costs.

<p>Error to the Common Pleas of Erie County.</p>

<p>1. Wher<“ the respondent in a proceeding for divorce has not been personally served with the subpoena, nor appears, nor defends, the libellant is not a competent witness.</p> <p>2. Jurisdiction in cases of divorce is exclusively in that forum in which is the real domicile of the parties, at the time and place of the injury.</p>

<p>Exceptions to the confirmation of t,he report of the viewers appointed to lay out a road in Franklin Township, Columbia County.</p>

<p>Sur motion to dissolve the -writ of attachment.</p>

<p>The proper remedy under the provisions of the act of Assembly 11 March, 1850, to recover a penalty for a breach of an ordinance or by-law of the borough of Pottsville, is by an action of debt.</p>

<p>Rule to vacate judgment and set writ aside.</p>

<p>A claim for two or more penalties may be included in one suit.</p>

<p>Fraud in procuring a signature to a negotiable note is no defence against one who purchased the note before maturity in the course of business.</p>

<p>Certiorari to Justice Allen.</p>

<p>Buie to show cause why judgment shculd not be entered for the defendant, non obstante veredicto.</p>

<p>A bill in equity averring that the defendant is seeking to exact usurious interest by legal process, as the application of common law or statutory remedies, avers an act contrary to law, and prejudicial to the interests of the person from whom it is sought to be exacted; and such person has an equity, which pi ay be enforced by chancery process. * ^</p> <p>Equity abhors continuous litigation and a multiplicity of suits, and will intervene for the prevention of these evils.</p> <p>Whatever is inequitable, which, at the same time is contrary to law, for which there is no adequate remedy at law, whether sought to be accomplished by legal process or legal means, is subject to the restricting powers of a court of equity' — unless excluded by a special statute.</p>

<p>The erection of a blacksmith shop in a town, or city, is not a nuisance psr se..</p>

<p>It is the duty of the court merely to ascertain the meaning of the law as it stands on the statute books. Courts .must content themselves with ascertaining, by the best lights afforded them, the intention of the law giver from the language he has employed.</p> <p>In passing the Act of April 4th, 1868, entitled “An Act to promote the improvement of real estate by exempting mortgages and other money securities from taxation, ■except for State purposes,” it is manifest that the object of the Legislature was to free from taxation all moneys owing upon all mortgages, judgments and recognizances. The opposite construction would leave the statute subject to the charge of creating inequality in taxation in cases where a note or common bond may have been taken in payment of .real estate sold.</p>

<p>Sur reasons for a new trial.</p>

<p>Bail in an appeal from the judgment of a justice of the Peace, must be perfected within the twenty days allowed by law.</p>

<p>The statute of amendments should be liberally construed, and applies to proceedings in mandamus.</p> <p>Mandamus is the proper remedy to compel inspectors, appointed to hold the election for directors of an incorporate company, to receive and count the votes by proxy, of policy-holders of the company, which have been rejected without sufficient reason.</p> <p>The duties of such inspectors are purely ministerial, not judicial or deliberative.</p> <p>A return to an alternative mandamus should set forth the facts in extenso, to enable the court to determine the law; not inference or conclusions, nor should a return be evasive, argumentative, multiform or ambiguous.</p> <p>A by-law adopted by the board ot directors, attaching conditions to the right to vote by proxy not required by the chai ter, is void, if done without consent or notice to policy-holders.</p>

<p>1. The exemption allowed to a widow by the act of 1851, has priority to a debt contracted prior to the date of the act. '</p> <p>2. The right of a widow to have a debt due to her deceased husband’s estate set off to her, as her exemption under the act of 1851, there being no other assets, will not be defeated by an attaching creditor who has acquired a lien upon the debt, by service of his attachment, prior to the 'decease of the debtor.</p>

<p>Where, during the attendance of a defendant in a criminal case upon his trial, he is served (outside the court house) with a writ of summons, it will be allowed to stand. Where a capias is issued against him, the personal service will not be 'interfered with, but he will be discharged on common bail.</p>

<p>“A grandson cannot be charged with advancements made by an intestate grandfather.”</p>

<p>Judicial sales discharge liens, not estates; the dower of a widow is an estate, and therefore an administrator’s sale of the land for the payment of debts, does not discharge it, but the purchaser at such sale takes the land charged with the widow’s interest, but free from the lien of arrearages capable of ascertainment.</p>

This was an action brought by.one of the legatees under the will of Geo. Kreebel, dec’d, against the executors of that will, to recover a distributive interest bequeathed to her by the will, subject to certain restrictions imposed in a codicil thereto.

<p>Mandamus. Motion to quash.</p>

<p>1. Common law has no jurisdiction in road cases- — -they a e regulated by statute.</p> <p>2. An order to lay out a road does not authorize viewers to vacate.</p> <p>3. A road cannot be changed on an or e- ..o lay out or vacate.</p> <p>4. The practice pro e • in issuing o \lers by the clerk.</p> <p>5. When the order r to lay a ror--1 it requires furlher order to vacate. But where it is to .change locat’on, such change necessarily vacates the old road.</p> <p>6. The facts recited from petition is no part of the order.</p>

<p>Exceptions to report of Auditor distributing proceeds of sheriff’s sale of defendant’s real estate.</p>

<p>Rule to show cause why the judgment and all subsequent proceedings in the case should not be set aside.</p>

<p>By virtue of the provisions of the act of assembly of 20 February, 1867, the alienee of the landlord may institute proceedings under the landlord and tenants act of December 14,1863, to recover possession of the demised premises made by the landlord, (the original lessor.) To do this attornment in this state is not necessary. By the sale of the demised premises to the grantee, and assignment of the lease to him, the law infers the consent of the tenant, and the land with the lease, and all the rights of the landlord, pass to the grantee by operation of law, and the grantee is within the-provisions of the act of 6 March 1872, as to all the rights and privileges of the original lessor under the lease. Til-ford v. Fleming, 17 P. F. S. 300, followed.</p>

<p>II. is an established principle of law that the construction and validity of contracts, which are purely personal, depend upon the laws of the place where the contract is made, unless it was made in reference to the laws of some other place or country where such contract, in the contemplation of the parties thereto, was to be carried into effect or performed.</p> <p>The distinction between the operation of the lex loci contrasted and the lex fori seems to be this, that the former governs all questions of validity, construction or interpretation, and rights under the contract, while the latter merely governs the remedy, or the form of remedy, employed.</p> <p>A lis fendens in another state is not a defence to a suit between the same parties for the same cause of action, at the same time, in Pennsylvania.- — -Thomas v. Thomas, i Blc. of Op’ns; affirmed.</p>

<p>Buie to show cause why judgment should not be opened and defendant let into a defence.</p>

<p>The legislature authorized three commissioners to lay out a state road in the counties of Dauphin and Schuylkill, with power to contract for the making of the same, and to receive from the township road tax collectors and county treasurers, all taxes already in, or thereafter to come into their hands, applicable to the making of said road; and also any money advances that might be made by individuals or companies. Moneys advanced to said commissioners were to be credited by them, and certificates issued for the amounts. These certificates were to be paid by the commissioners, appropriating thereto the taxes, which by the act, they were to receive from the collectors and treasurer, or, on presentation to the collectors, and request made, a credit of the amount of taxes was required to be entered by the collector on such certificates.</p> <p>Heidi that the collector held no such relation, as a public officer, to the holder of 'these certificates, as would authorize the issuing of a mandamus to compel him to pay money on them; and that he could not be compelled to pay taxes collected by him, applicable to said road, to any other parties than the commissioners named by the legislature.</p>

<p>A court of equity will not intervene by injunction to restrain parties acting in accordance with law and pursuing their legal rights.</p>

This case was tried without regard to form, as it is questionable whether plaintiff could sue in his own name. After hearing the case, the court directed a verdict for plaintiff for $625.00, but reserved the question as to whether the release of the plaintiff’s father had not totally defeated the cause of action and rule non obstante veredicto.

<p>Sur rule 1 o show cause why the plaintiffs shall not pay the costs for June term, 1872.</p>

<p>1. The record shows no cause of action against the wife.</p> <p>2. To make a married woman liable on her contract, it must be alleged and proved that the debt was for necessaries for herself and family, otherwise judgment is void, and would not make her estate liable.</p> <p>3. Proof necessary, and liability of married women under proviso to 8th section of the act of 1848.</p> <p>4. Judgment-by default against husband and wife on joint note cannot be sustained.</p> <p>5. Justices of the peace have no jurisdiction to enter judgment against a married woman only in cases for necessaries for herself and family, and the improvement of her estate.</p> <p>6: Waut of jurisdiction may be taken advantage of at any stage of proceedings.</p> <p>7. The twenty days’ limitation for certiorari, not applicable when the record shows that the justice had no jurisdiction. Offerman v. Downey, 2; Lacock v. White, 7 Harris 498 followed;</p> <p>8. A married woman has the right to attack a judgment for want of jurisdiction, at any time.</p>

<p>Motion to continue preliminary injunction.</p>

<p>To complete an appeal the Justice’s transcript of the proceedings must be filed in the Court by the party appellant.</p> <p>An appellee has no control over the proceedings relating to the appeal.</p>

<p>1. In proceedings for a warrant of arrest under the provisions of the act of assembly of I2th July, 1842, abolishing imprisonment for debts, &c., the affidavit should set forth that a suit had been commenced, or a judgment obtained in court.</p> <p>2. When the arrest is asked for under the last clause of the 3d section of said act, the affidavit should also set forth that the defendants fraudulently contracted the debt, or incurred the obligation, respecting which suit is brought.</p>

<p>An assignment of one of a series of collateral securities transfers them all.</p> <p>The mere endorsement on a bond of a former transfer, unsupported by proof of delivery, would not be adequate to avoid an after assignment actually executed and delivered.</p>

<p>When the claim of a party exceeds the jurisdiction of the justice, he cannot remit the amount, (except by payments) in order to give the Justice jurisdiction to sue, and this fact may be established either by the record or by parol testimony. Collins v. Collins, 1 Wr. 387.</p>

<p>Trespass for damage done by cattle to growing crops. Sufficiency of fence passed upon.</p>

<p>1. The provision of the act of 17th February, 1859, “that no one person shall be eligible to hold more than one township, borough or school district office at one time," must exclude defendant from the office of councilman, he being a member of the school board at the time he was sworn in as councilman.</p> <p>2. The right to a strictly charter office can only be determined in a quo warranto.</p> <p>3. The right 'to hold office can only be investigated in a quo warranto in the Common Pleas, (Scranton borough election, per Conyngham, J., Brightly’s L. C. on election, 455 to 462, followed)..</p> <p>4. Where under the cumulative method of voting, the ballots for a candidate were marked “2 votes,” Held, that the intention to give two votes each to such candidate, was clearly enough shown on the face of the ballot, to make it a compliance with the act of assembly on this subject.</p>

<p>The regular terms of court in the county of Schuylkill for reports of road viewers, commence on the first Mondays of March, June, September and December, and continue , for four weeks.</p>

<p>An award at common law follows the submission, and is binding on the parties. It is assailable for corruption or misbehavior.</p>

<p>Exceptions may be either filed before the auditor or in court, under the 68th rule of court.</p> <p>The mere omission of a creditor to collect his debt from the principal will not discharge {he surety.</p> <p>On the death of a surety on a joint obligation, where such surety has had no pecuniary interest, his estate is not discharged from the payment of the debt, since the passage of the act n April, 1848.</p>

<p>1. A party who was charged with larceny was discharged without a trial, the district attorney having entered a nolle prosequi, with the leave of the court. A witness subpoenaed by the commonwealth, who was refused payment of his fees, brought suit to recover them against the county, field, that in the absence of any statute imposing an •obligation on the county to pay the costs, it was not liable.</p> <p>2. That the justice had no jurisdiction.</p>

<p>A contract made under a mistake is voidable and relievable in equity.</p> <p>Where the right of a complainant is disputed and until his claim is established in an action at law, courts of equity will not interfere.</p>

<p>Habeas Corpus.</p>

<p>Rule to permit a sheriff to amend his return, and why his sureties, who have paid the judgment on which execution issued, to plaintiff, should not he substituted, &c.</p>

<p>The orphans’ court cannot, upon petition of the administrator d. b. n., grant a citation upon the removed administrator to forthwith hand over all properties of the estate.</p> <p>It may compel him to file an account.</p>

<p>1. A court of equity will not interpose to remove a structure already completed, but will turn the party over to his remedy at law.</p> <p>2. When the plaintiff stands by and sees the defendant erect a mill dam on his (defendant’s) premises, at a great expenditure of money, and makes no objection that the water will overflow his land, but acquiesces in it until completion, a license is implied.</p> <p>3. For consequential damages for a breach of the terms of the license, the plaintiff must resort to an action on the case.</p>

<p>1. Under the confirming acts of assembly of 1826, 1831, and 1835, the relation of landlord and tenant, in case of a lease by the public committee of the township of Providence, in Luzerne county, made in 1796, claiming the Connecticut title, exists with the same effect as in leases held under title derived from a Pennsylvania claimant.</p> <p>2. In the premises of a lease for the term of nine hundred and ninety-nine years, the lessor granted, demised, set.and to farm let, the land described. The habendum clause was as follows : “To have and to hold the above granted and demised premises, with every privilege, right, member and appurtenances whatsoever, to the same premises belonging, or in anywise appertaining, whether ways, waters, water courses, mines and minerals, of whatever description,” &c. Held, that although there was no opened mine at the time of the demise, the lessee had the right to dig for minerals, and to mine and take them away.</p> <p>3. When a lease permits the opening of mines, it is not a cause of forfeiture for the tenant to work them even to exhaustion.</p> <p>4. The term “ minerals,” embraces everything not of the mere surface, which is used for agricultural purposes. Granite, as well as fossils are comprehended within it.</p> <p>5. An ancient grant is to be construed by evidence of the manner in which the tiling granted has’ always been possessed and used, for so the parties must be supposed to have intended.</p> <p>6. A tenant for years does not incur a forfeiture of his term by entering into articles of agreement for the sale of the demised premises in fee, nor by an absolute conveyance of the fee by deed. By such agreement or deed the estate of the reversioner is not divested. No other effect is given to such instruments than that of passing such interest only as the lessee might lawfully part with.</p> <p>‘Note. This case was taken to the supreme court by Writ of error, and affirmed on the opinion of the court below, March, 1873.</p>

<p>Error to the court of common pleas of Lehigh county.</p>

<p>Buis to show cause -why the judgment should not be satisfied.</p>

<p>Relaxation of costs.</p>

<p>A petition having been presented by the sureties of the recorder of deeds, alleging-misconduct on the part of that officer, and their liability to loss, and praying for a citation to that officer to file a new bond, and for the discharge of said sureties from responsibility. Held : That the 1st section of the act of 2ist April, 1846, entitled “An act in relation to-certain public officers and their sureties,” on which said application was based, does not authorize such a proceeding on the part of sureties against their principal.</p>

<p>Testator devised to his wife in trust for herself and children, and, after a certain dime, “if the executor thinks it will be more productive,” the property to be sold, and the imoney divided. The parties in interest, having elected by deed to take the land in lieu of the proceeds of the sale thereof; Held: That a deed from them, without joining the «executor, passed a good title to defendant.</p>

<p>Buie to show cause why judgment should, not te entered for want of a sufficient affidavit cf defence.</p>

<p>A levy upon personal property of the debtor is not such a satisfaction of the debt as will prevent the attachment of the debt at the suit of a third party — a creditor of the plaintiff in the execution.</p>

<p>An act of assembly for the winding up of the affairs of the December Oil Company, having provided that when it shall appear to the court that the company is insolvent, or is mismanaged, &c.,on the filing of a petition or bill in equity, the court shall appoint an, assignee or assignees. Held: That the court was not authorized to appoint on the mere filing of a bill in equity, but that the power was only to be exercised when, by a judicial investigation, of which the filing of the bill was but the first step, it was made to appear to the court that the company was insolvent, &c.</p>

<p>Buie to show cause why judgment should not he opened and defendant let into a defence.</p>

<p>W., N. & R. formed a co-partnership for the single purpose of erecting a furnace for the Emaus Iron Co. They borrowed for partnership purposes, $15,000 from the Miners’ Trust Company Bank, for which they gave their joint judgment obligation, and also deposited with the bank, stock of the Emaus Iron Co. as collateral security. The partnership was dissolved before the work was completed, and a short time thereafter W. was declared a bankrupt. His assignee in bankruptcy sold his real estate, at which time notice was given of the above judgment. On petition presented by the purchaser for a rule to show cause why the real estate bound by the lien of said judgment, including that of N. and R., should not be sold in the proportion or in the succession, that the owners were liable to contribute to the payment of said judgment, otherwise on the payment of the judgment, that the Miners’ Trust Company Bank might be compelled to assign the judgment and the collaterals for such uses as the court might direct.</p> <p>Held: 1. That as between the original parties, until there was a final settlement of the partnership business, the court would not subrogate W. to the rights of the plaintiff in the judgment, notwithstanding the agreement of N. and R. to pay the partnership debts; it being alleged that the partnership transactions were unsettled, that W. was a debtor to N. and R. in a large amount, and that the consideration for the promise of N. and R. to pay said partnership debts had failed.</p> <p>2. That the purchase of the real estate having been made with notice of the judgment, was made subject to its payment by the purchaser, and that he had no claim to subrogation or contribution.</p>

<p>Rule for judgment on tlie answers of the garnishee.</p>

<p>1. A sheriff’s return to a judicial process is conclusive evidence as to parties, and frimafacie as to strangers.</p> <p>2. That article in the constitution which provides that no person shall be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land, implies the right to notice, to appear and answer, and to a remedy.</p> <p>3. When a summons states an incorrect day for the hearing before a justice of the peace, and judgment is rendered by default of appearance, it will be reversed on certio-rari. So, also, a judgment'obtained through trick or fraud.</p> <p>4. When judgment is rendered against the defendant by default, the record must show a service on oath or affirmation. The record must also show that some evidence was heard by the justice.</p> <p>5. Errors not excepted to will generally not be noticed, but the court reserve the right to notice them, when justice requires it.</p>

<p>Hearing upon bill and affidavits.</p>

<p>1. A judgment entered by a mutual insurance company against the defendants, members of the corporation, for the unpaid balance of their premium note, under the provisions of the act of 26th July, 1842, on filing a memorandum, as required by the act, in the prothonotary’s office, is valid, and execution may issue thirty days after demand and refusal, for the amount of the assessment, with interest thereon.</p> <p>2. Premium notes of members are assets of the company for the payment of losses, and they may be assessed to pay cash policies.</p> <p>3. An acceptance of a supplement to a charter is necessary to give it vitality. This may be done either by a formal vote of the board, or by the exercise of the powers and privileges contained in the supplement.</p> <p>4. Grants beneficial may be presumed to he accepted, without express words. The renewal of the policy of insurance by the defendants, is an indorsement of a supplement previously passed, and a waiver of all objections to it.</p>

<p>A judgment of a justice of the peace affirmed or reversed on certiorari is final, and execution can issue out of the court of common pleas for the debt, interest and costs, when affirmed, and for the costs when reversed, under the act of 1810.</p> <p>.The record need not be remitted to the justice except where the proceedings are non prossed.</p>

<p>One who is elected to the office of borough treasurer, and subsequently removes from the borough, thereby disqualifies himself for holding said office.</p>

<p>Motion for judgment for want of an affidavit of defence.</p>

<p>Where a guardian’s bond was improvidently cancelled, and delivered to the heirs of the surety, it was held not to be error to vacate and annul the decree, and order the bond to be restored to the register’s office, in accordance with the ruling in Newcomer’s Appeal, 7 Wright, 43,</p>

<p>Notice of protest having been left with A. on Sunday, being told what it was, and the following Monday being in time to serve said notice : Held, that that was sufficient.</p> <p>The court reserved the question, as to whether, leaving notice of protest with defendant, on Sunday, ist January, 1871, and telling him what it was, and the following Monday, zd January, 1871, being in time to serve said notice, so that the defendant was in actual possession of it in time, and knew that he was, rendered him liable as endorser of the draft in suit.</p>

<p>The burgess of a borough incorporated under the general borough law of 1851,has no right to act as a member of the town council, and cannot refuse to sign ordinances regularly passed by the town council, on the ground that he was not present as a member when they were adopted.</p>

<p>When the father is dead and the mother an unsuitable person to talce charge of her children, the court will appoint a guardian for that purpose, and such guardian can retain the legal custody of the children as against the mother.</p>

<p>A justice of the peace has no jurisdiction of an action for damages for a loss dedu■cible from the existence of a contract. (Zell v. Arnold, 2 Pa. Rep. 292.)</p>

<p>An act of assembly authorizing taxation for the payment of bounties previously paid is constitutional.</p> <p>The power of the legislature to tax for public good and for public purposes extends even retrospectively to all matters not penal, not in violation of contracts, and not' forbidden by the constitution.</p>

<p>Rule to stay proceedings.-</p>

<p>Sur exceptions to report of Auditor.</p>

<p>It is too late to amend a bill in equity, after bill, answer, replication, reference to a master, and examination of witnesses.</p>

<p>1. If a man arrested under a bastardy process, marry the woman pregnant with the child of which he is the putative father, the marriage is good, unless it clearly appears that the charge was false.</p> <p>2. The mere unsupported denial of the man of the truth of the charge, is not sufficient in proceedings for divorce to establish its falsity.</p> <p>3. The court after discharging a rule for divorce, on motion referred the case back to the examiner to take additional testimony.</p>

<p>Under the 6th section of the act of 17th February, 1859, to secure a stricter accountability of certain public officers in Schuylkill county, a school director cannot either holdl the office of district treasurer or collector of school tax, nor can he, during the time he is. school director, exercise the duties of the township treasurer, although he act merely as. a deputy for the treasurer.</p>

<p>Where A. endorsed for B., the maker, negotiable paper, and C. discounted it, and •after presentment and before protest, on last day of grace, D., brother of maker, without 'the knowledge or consent of either maker or endorser, guaranteed in writing the payment ■of the note, in consideration that the holder would not protest, but on the same day by ■consent of the guarantor, who asked to be relieved of his obligation, the holder did protest. yield, that the endorser continued liable as such, that the guaranty being between strangers to the note, conferred no rights on. the maker and endorser — and .could be rescinded •by the parties to it, without prejudice to the holder’s right to recover off the endorser.</p>

<p>1. Goods purchased by a married woman having no separate estate, with money loaned to her, are subject to levy by her husband’s creditors.</p> <p>2. The act of April 3d, 1872, includes only the “earnings” of a married woman; 'it cannot be construed to include borrowed money.</p>

<p>A mechanics’ lien can not be stricken off by petition based on questions of fact not arising upon the record.</p>

<p>Motion to quash, the petition.</p>

<p>A pai-ol lease of her property for a year by a married woman is binding upon her where she has received a valuable consideration for it in advance and accepted the rent as it fell due.</p>

<p>Fornication and bastardy.</p>

<p>Rule to show cause why judgment should not he entered for ■want of a sufficient affidavit of defence.</p>

<p>The Board of Health have not an unlimited arbitrary right to detain a vessel after there is no longer an appearance of malignant disease upon it.</p>

<p>A member of a town council, who is charged in a suggestion in the nature of a quo ■warranto, with having an interest in a contract for furnishing supplies to the borough of which he is an officer, must, in his plea, disclaim or justify. If the plea contain nothing ■of substance, if no material issue could be formed upon it, judgment will be given upon the record, as if the bad plea had no existence.</p>

<p>Cutting timber on the land of another, without color of title, is destruction to the freehold, and may be denominated destructive trespass.</p> <p>Equity will enjoin against the commission of such acts, when the parly is insolvent, and where it is necessary to prevent a multiplicity of suits.</p>

<p>The act of 1855, which forbids any other inquisition and extent p'ending the first, does not apply to mechanic’s liens. As a levari facias issues without any previous inquisition, the act does not apply, and a material man is not concluded by an extension, nor compelled to await payment in the half-yearly installments fixed by the inquest.</p>

<p>B. and wife gave bond to K., which bond stipulated for the payment of interest to K. during his lifetime, and upon the death of K., for the payment of the principal to B.’s wife, who was the daughter of K. In the distribution of the assets of the estate, the testimony of B. and his wife was offered to prove that the money paid by K., which formed the consideration of this bond, was a gift and not an advancement. Held, That the disabilities of the witnesses were not removed by the act of 1869, and they were incompetent.</p> <p>The character of this transaction and the circumstances in which the parties to it stood, warranted the auditor in holding it to be an advancement.</p> <p>An advancement of personal property must, ordinarily, be made out by proof of the agreement accompanying the gift, if that is available. In the absence of such proof, it must be ascertained from a consideration of the surrounding facts.</p>

<p>1. An insolvent debtor will be discharged, although it is opposed because he was ■arrested on process on a judgment in an action for actual force, if the court by going be-Tnnd the judgment ascertain that the cause of action was not founded on actual force.</p> <p>2. If an insolvent petitioner omits to return a debt due to him from an honest conviction of its worthlessness, it will not defeat the petition.</p>

<p>The State court has not authority to discharge, an insolvent debtor arrested upon process issued out of the United States Circuit Court upon a judgment founded upon' a fraudulent representation alleged to have been made by the petitioner. • . •</p>

<p>Under the act of 19th April, 1867, the powers and duties of the county commissioners and sheriff were changed, and, with some modifications, transferred to two jury commissioners and the sheriff, any two of whom may draw from the wheel the names of persons to serve as jurors. It follows, that if any two of the three may draw, they are also authorized to open the wheel for that purpose, and re-lock and re-seal it again with their respective seals. •</p> <p>In the act of re-sealing a jury wheel, the sheriff’s seal was placed upon the wheel by a deputy sheriff. Held, there was no irregularity; as the law now stands, the seal of the sheriff was not required.</p>

<p>The act of 1834 authorized the selection of talesmen from the bystanders and from the body of the county, and the 41st section of the criminal procedure act of i860, which authorizes the courts to issue a tales de circumstantibus when necessary, does not repeal the act of 1834, so as to limit the selection of talesmen to the “bystanders.”</p>

<p>This was a motion to continue a special injunction.</p> <p>Charles S. Wood died in May, 1873, being the owner of a number of shares of stock of the Cambria Iron Company, which stood in his own name. By his will he named four executors, all of whom took out letters.</p> <p>George'R. Wood, one of the executors, delivered a certificate for 1905 shares of'this stock to McDowell & Wilkins, brokers in this city, such a power of attorney in the usual form reciting a sale to-and authorizing-as his attorney to sell and transfer the shares to-. This was signed by him as acting executor.</p> <p>McDowell & Wilkins borrowed from Maitland & Audendried, $9000, and as collateral for the loan, agreed to give, and did give them this certificate and the accompanying power of attorney.</p> <p>The other executors discovering the fact, filed a bill to have the certificate returned to them and for an injunction to restrain the transfer.</p> <p>The motion was argued on Friday last. Fot; the motion it was urged that the legal title to the stock was in the testator, and nothing was shown to displace that but an authority to sell which had never been executed in fact. And the lenders on stock took the risk, that the person they received it from, had a title or authority to deal with it in this way. That as the executor could not pledge for such a debt, it lay on him to show that •some one had by purchasing under the power acquired a title which he could lawfully use as a pledge.</p> <p>For the defendants it was argued that it was admitted that an executor could sell the stock, and the authorities all agreed that a sale and payment of the price, and delivery of the certificate with a power to transfer, passed a perfect title as against execution creditors. As Maitland & Audendried had undoubtedly given value and no fraud was charged, they had thus acquired the'title. At all events, they had certainly got the shares of the executor as a legatee, and this being so, the executors could not deprive them of the security, without redeeming.</p>

<p>Defendants j>ave A. a note signed in blank. A. left their service and four years after transferred the note to plaintiffs, by whom these facts were known. Verdict for plaintiffs set aside.</p>

<p>1. A boilei* held to be “an alteration or improvement” which by the terms of the lease were not to be removed by the tenant.</p> <p>2. A parol license .contrary to the written terms of the lease should be clearly proved. ■■■■■■</p>

<p>Where there are two mining operations — one owner working on the upper level, and one on the lower level of the same vein — the owner of the upper level, operating in the most approved method and with care, is not required to control the natural flow of the water downwards, and may work his coal out down to his line, and the maxim of the common law sic títere tuo ut alienum non laedas applies.</p> <p>And the owner of the subjacent level owes a servitude, and must leave a pillar of coal to support the gangway and keep out the water from the level above.</p> <p>Adjoining owners on the same level of the same vein, owe no special duty to each other.</p> <p>When, however, the owner of the superjacent land has created a servitade upon his land, in favor of the subjacent owner, such as a right to drive an aii'-way through his works and to connect with the surface, such owner after he has worked all his coal out and is about to abandon his workings, must give reasonable notice of this to the owner of the dominent tenement, and on failure so to do, equity will restrain him from permitting the water to fill up, if by so doing it will destroy the easement, the owner of the dominent tenement to be at the expense of pumping the water until the injury can be remedied. Reasonable notice is relaLive and depends upon the work to be performed.</p> <p>A party having an easement on the land of another, may go upon the land for the purpose of the enjoyment of such easement to its fullest extent, either to construct or repair — or secure it from danger — doing as little damage as possible and responsible for that damage — for the grant of a privilege carries with it every thing necessary to its enjoyment.</p>

<p>Error to Qourt of Common Fleas of Armstrong County.</p>

<p>1. A judgment in an action by A. a.s legal plaintiff if no technical objection way raised against his right to maintain his action as legal plaintiff, is a bar to an action by him as equitable plaintiff.</p> <p>2. Whenever it does not contradict the record parol evidence may be given to show that a former recovery was had, not upon the merits, but upon some technical objection to the form of action or otherwise.</p> <p>3. Juror's are competent witnesses to establish this fact.</p>

<p>Parol evidence, in the absence of fraud or mistake, of an agreement at time or giving the note, that maker would not pay it, is inadmissible. Affidavit averring such agreement is not sufficient.</p>

<p>A ldurn of nulla bona is not sufficient to found a bill under the act of 1S63, making the officers of certain corporations liable m equity for their debts —The return must set out that no real or personal property of the corporation was exhibited to the officer, sufficient to satisfy the debt, as required by the act.</p>

<p>The Orphans’ Court has no jurisdiction to entertain bills by strangers to proceedings for specific performance of decedent’s contract, to rescind such decrees.</p> <p>Semble: That a purchaser of the legal title, for value, and without notice, prior to the proceedings for specific performance, would not be affected by them.</p>

Rule for payment of balance of fund raised by sale of real estate to Joseph .Rebar, and rule for payment of balance to Rebecca Spohn.

<p>Exceptions to inquisition.</p>

<p>Judgment by confession on bond of husband and wife for purchase money of real estate is void at law as against the wife, and call only be sustained in equity as a lien on the property purchased, and where her interest in that has been re-acquired by the plaintiffs, the judgment against her must be regarded as invalid and of no effect. Neither can a judgment upon scire facias issued on the original, and obtained against her by default after the death of her husband be sustained.</p>

<p>Error to the court of common pleas of Cambria county.</p>

<p>1. The Commonwealth is allowed to stand aside jurors without assigning cause of challenge.</p> <p>2. An indictment under the act of May 3, 1871, should charge that the offence was committed in the Twenty-second ward. A11 indjcimeni general in its terms is not sufficient under this act.</p>

<p>The right of eminent domain in the State cannot be restricted except as provided! by the constitution, delegated by the inherent power of the people. It is an infringement of that instrument to allow private property to be taken for private use. This can only be done for public purposes, and by paying or securing the payment thereof. The 4th section of article IX. is a disabling, not an enabling clause.</p> <p>When a railroad takes private property for public use under the act of February, 1849, and its supplement they are bound to follow the provisions of the law strictly. Any departure will render them trespassers.</p> <p>After entry and payment of damages or securing the same, the right of way oven the land vests in the company. After filing of the bond, the owner can recover damages only.</p> <p>An owner within the purview of the act is one who has some interest in the land alt the time the injury was done. One who has acquired, an interest therein, either in fee or as tenant for years, or as lessee after the injury has been committed, is entitled to no. damages.</p> <p>If there be errors in the view or any part of the proceedings, the remedy is to file, exceptions in court, and if not sustained, to certiorari the proceedings. When, however, an appeal is taken within the thirty days allowed by law to the report of the viewers, all irregularities are waived, and all the requirements of the statute are presumed to have been done.</p> <p>When a party having knowledge of the possession and use of the land by a railroad company, afterwards takes a lease of the coal beneath, he cannot require the company to> remove the track, and his only remedy, if he has any, must be under the statute for damages.</p>

<p>r. The agreement of partners to make real estate part of the common, stock must be in writing, and ought to appear of record.</p> <p>2. Where the possession of the plaintiff, who was one of the tenants in common is. disputed by the others, an issue should be framed and the facts found by the jury.</p>

<p>Where a young woman makes a deed of trust and one year afterwards marries, held in this case to be in contemplation of marriage.</p> <p>A limitation by which the course of descent is broken, makes the trust an active special trust, and should be kept alive to support the remainders.</p>