Volume 1 — Pearson's Pennsylvania Reports

<p>An agreement to pay ground-rent comes within the rule of court requiring an affidavit of defence. But it is necessary for the plaintiff to file the agreements through which he claims, or if the contract is by parol to make sufficient averments.</p>

<p>Where an issue is directed by the court, it is improper to take out a rule of reference under the compulsory arbitration law. An award of arbitrators, under the compulsory arbitration law, which determines the facts and leaves the law to the court, is irregular and will be set aside.</p>

<p>Tlie sale of the property on an execution issued by plaintiff in replevin, does not prevent the defendant from recovering the value of the goods on the • replevin bond- The defendant has an interest in the property replevied -which is subject to legal sale. The plaintiff is entitled to a credit on account of the sum realized by the sale of the article replevied.</p>

<p>When a principal instructed his special agent either to have a horse, which he was about to purchase, inspected by a particular person, or obtain a warranty, and failed to do either, the principal is not bound to keep the animal if he is unsound.</p>

<p>A contractor or laborer has no power to bind a railroad company for materials furnished for the construction of the road. A railroad company, having only a right of way over land, has no right to take stone, or other materials upon the line of its track, to aid in the construction of the road.</p>

<p>When a turnpike company, having merely the right of way over land, laid railway tracks along the line of its road, it is liable for damages to the owner of the land. Even if the claimant had given a release of damages to the turnpike company, it would still be liable on changing a road that could be used by the whole neighborhood into one merely beneficial to the company. The claimant should be allowed for the future damages to his property that would result from the ordinary use of the railroad ; the company would then be liable only for gross carelessness.</p>

<p>Upon a certiorari to a justice of the peace, the plaintiff may take affidavits to show that the judgment was fraudulent; and also to prove that the date was incorrect, in order to show that the certiorari was issued within twenty days.</p>

<p>An award of arbitrators will be set aside on the ground of undue influence, when they increased the amount found due at the suggestion of the plaintiff's counsel in order to carry costs.</p>

<p>The act of March 28th, 1806, gives no power to the directors of the poor of Dauphin county to bind a child out as an apprentice, unless he or she is chargeable upon the county. Under the act of 27th September, 1770, the mother of a minor has no power to bind her out as an apprentice when the father is living and competent to act. The court will allow a child fourteen years of age to choose his own place of residence.</p>

<p>An executor or administrator can pay a debt barred by the statute of limitations, except when forbidden by a devisee or other party in interest.</p> <p>The retaining by an executor or administrator of a sum of money as security to himself against a claim, does not so far make him a trastee, in respect to the person to whom the claim was due, as to prevent the running of the statute of limitations.</p>

<p>A justice of tlie peace cannot alter his docket after giving judgment. If a judgment is void, as for want of jurisdiction, it is bad as to all the world, and may be set aside on the motion of any one interested; if it is merely irregular, it can only be set aside on the application of one of the parties.</p>

<p>Money arising from the sale of the estate of the principal debtor should be paid to the creditor in discharge of the surety rather than to the latter himself- The creditor is entitled to all the securities given by the principal debtor to his surety.</p>

<p>The laws granting stays of execution were only intended for the benefit of the debtor, not of his judgment creditor. The violation of an agreement to give a stay of execution by a creditor is not such a fraud upon other judgment creditors as will entitle them to have the execution set aside. The court will not direct an issue to try facts, unless they shall be such as appear to the judge to require one.</p>

<p>Taxes upon public officers must be assessed at their places of residence, not . where they perform the duties of their offices. A tax laid upon money at interest, the profits of a trade or occupation, or personal property, is payable at the owner’s domicile, not where the money is at interest, the trade or occupation is carried on, or the personal property is. Domicile is a question of fact dependent on all the circumstances of the case. The question of domicile may be often determined by the place where the person exercises the right of suffrage.</p>

<p>When upon the dissolution of a firm, one of the partners assumes a particular debt, he is bound to pay it. If another partner discharges it, he is entitled to be subrogated to the claims of the creditor against the one who assumed it.</p>

<p>Tho absence of a party in attending the sessions of Congress or the State legislature is a good cause for continuing a case; but that of counsel is not, and the court will enter a nonsuit.</p>

<p>Assessors, appointed under the act of February 19th, 1849, to assess damages to property caused by the building of a railroad, must find the value of the land taken. A report containing a lumping charge of all the injury done will be set aside. The court will not refer a report back to viewers for correction when their previous one seemed partial.</p>

<p>The court lias power to set aside the report of viewers to assess the damages caused by the building of a railroad, when the sum allowed was exorbitant; but this error must be clearly made out. The State has the right to take the-property of individuals, or may commit to others that power, but they must make compensation for the property so taken. In assessing the damages caused by the building of a railroad, the inquest is only to take into consideration those that will result from the ordinary use of the road, not those arising from unskilfulness, carelessness, or wantonness on the part of the company or its agents. A juror upon an inquest may be examined to show the grounds upon which they made their report; all the jurors need not be called. Parol testimony may be received to explain a report of viewers. In assessing damages, the jurors should not consider probable future legislation. Viewers may be appointed to assess damages before the actual building of a railroad, as soon as any entrance is made, or damage, however slight, is done to a person’s property. A man seized of real estate in right of his wife is not a freeholder, and cannot be a viewer to assess damages caused by the building of a railroad; this objection should be made before the viewers reported, if known at that time.</p>

<p>A report of viewers to assess the damage caused by the building of a railroad, will not be set aside because one of the viewers had a claim against the company for damages for altering a county road so as to pass through his land. Those persons only are disqualified from acting as viewers whose property immediately adjoins the railroad.</p> <p>A party, knowing of a legal objection to a viewer, must make it before the report is made.</p>

<p>Notice of a view to open or vacate a road is only necessary to an adjoining property-owner, when liis land is affected thereby; if he is actually present at the view, no notice is necessary. The viewers have not the power to vacate a road which is the terminus of another public road.</p>

<p>It is illegal for a barber to sbave persons on Sunday: the fact that they were sick on Saturday and the barber shaved them the next day, as a matter of accommodation, without compensation, makes no difference.</p>

<p>Upon a charge of false pretence the indictment must recite the matters stated by the defendant, deny their truth, and aver that they were known to be false by the defendant. It must also slate whether the money was obtained as a loan, gift, or otherwise, and that the false statement was made for the purpose of obtaining it.</p>

<p>When a railroad was laid out during the lifetime of a deceased person, but no damage was done till after his death, the guardian of his minor children is the proper person to sue for those damages, even if the property had been sold after they were done.</p>

<p>A party for vliose use a suit is brought is liable for all the costs from the beginning of the action.</p>

<p>When a man receives the money of another without any direct authority, no affidavit of defence is required in a suit for its recovery. The court will first see whether an affidavit of defence is required, and then look into the affidavit itself.</p>

<p>When an agreement to pay a claim by some of the heirs against an estate is made by executors, signed by some of them unconditionally, and by another, with the condition, that it shall be signed by all the heirs of the deceased, though never so signed, it is binding upon all the other executors and their personal representatives, and upon him, also, if assented to by all the heirs, except those for whose benefit the agreement was made, as their assent can be presumed.</p> <p>When a joint instrument is drawn to be signed by several, and one fails to sign, all are discharged. It is otherwise in the case of a j oint and several instrument, a security for an antecedent debt, or when the parties signing knew that fewer than the whole number were to sign it.</p> <p>The words in a will, “ All my money and movables ” will not devise such a chose in action as a claim against an estate. (Sharp v. The United States, 4 Watts, 21, distinguished.)</p>

<p>When a viewer has expressed an opinion as to a former and somewhat similar ease, that does not render him incompetent to serve on the view; the party waives objection to a viewer by appearing at the hearing.</p>

<p>A bond with a warrant of attorney given by a married woman is void, and a judgment entered thereon will be stricken off. The party can sue on his original cause of action, if the feme covert is actually liable; it is not merged in the void bond.</p>

<p>In order to entitle the plaintiff to judgment for want of a sufficient affidavit of defence, lie must state clearly the date, amount, and terms of his claim. Where money has been received from a third person for the use of the party suing, no affidavit of defence is required.</p>

<p>A transcript was entered from the record of a justice of the peace, who had died; his docket had been given to a justice without the district of the former magistrate, and upon his death returned to one within it. Held: That though the proceedings were somewhat irregular, the court will refuse to strike off the judgment. Where a judgment is very ancient, a scire facias should be issued upon it, or the execution will be set aside.</p>

<p>Articles of agreement made between husband and wife, conveying to him all her interest in an estate, upon which she had a claim, the amount of which was unknown at the time of entering into the articles, are void. A power of attorney from a married woman to her husband is void.</p>

<p>The Court of Quarter Sessions may, in their discretion, revoke the license of a tavern-keeper, who sells liquor to minors or apprentices, harbors intemperate persons, or is convicted of selling liquor on Sunday, of any oflfence against the liqnor laws or of one involving moral turpitude. Where the barkeeper sold, liquor to a minor without the knowledge of the inn-keeper, but did so on Sunday, when the house was kept open with his consent, his license should be revoked.</p>

<p>The court lias no power to vacate a street laid out in an incorporated borough.</p>

<p>The court will refuse a mandamus, where the partj against whom it is prayed denies that he owes the money, to compel the payment of which the writ was demanded. His right must first be established by an action.</p>

<p>When judgments were obtained before a justice of the-peace, and transcripts entered in the Court of Common Pleas, these judgments can only be set aside on certiorari or appeal • but when entered against a married woman, except in cases under the act of 1848, they are so far void that executions issued thereon will be set aside.</p>

<p>In an action where there are several defendants, who elect to try separately, the plaintiff can only recover his witnesses’ costs from that defendant against whom those witnesses were called, but can recover all the other costs from any party against whom he obtains a judgment.</p>

<p>In an action of ejectment, when several persons have been joined in the suit as defendants, and against some the plaintiff failed to recover, they are entitled to obtain their costs from him, unless the judge before whom the case was tried shall certify that there was reasonable cause for making them parties. The act of 8 and 9 William III is in force in Pennsylvania.</p>

<p>A mechanic’s lien can only be filed against the house upon which the labor was done, or the materials furnished, the ground upon which it stands, and the out-buildings necessary for its enjoyment. If it has been entered against any other property, a judgment confessed in favor of the mechanic or materialman at the time it was filed will not cure this defect. The penalty for entering a lien in this manner is to be postponed to other creditors. (Lauman’s Appeal, 8 Barr,. 473, distinguished.)</p>

<p>The treasurer of Dauphin county is not entitled to compensation for receiving and disbursing money on account of the poorhouse.</p>

<p>Where land, purchased with partnership funds for partnership purposes, was conveyed by articles of agreement to the partners as tenants in common, a judgment creditor of one of them has a lien on this property.</p>

<p>When a policy of insurance contains a clause to refer all matters in dispute in case of loss to arbitrators, whose judgment shall be conclusive on both parties, and the paper claimed by the plaintiff to be an award gives greater damages than are covered by the policy, the court will consider 'this an appraisement instead of an award, and set aside the judgment entered ' thereon. Judgment for want of an affidavit of defence cannot be taken on an award of arbitrators.</p>

<p>In an action on a policy of insurance no affidavit of defence is required.</p>

<p>Several distinct crimes may be charged in different counts in the same indictment. In an indictment for selling liquor to minors, their minority and names must be averred, if known; also that the defendant well knew that they wore minors; in one for selling to persons of known intemperate habits, the fact that they were persons so known must be set forth; and in one for selling on Sunday, the fact of sale only on that day need be averred, not the names of the persons to whom the liquor was sold.</p>

<p>The only remedy to redress a mistake in the amount of damages assessed by viewers in a suit against a railroad company is by appeal and trial by jury; the court will not pass upon this question on exceptions to the report of viewers. The appeal should be in the same form as that from the award of arbitrators.</p>

<p>Where a judgment is given by a principal to his sureties to indemnify them against loss, the debt paid in full by one of them, and the judgment marked to his use, if he fails to make his money by issuing execution upon it, he is entitled to contribution from his co-surety.</p>

<p>The personal property is tlie primary fund of which the debts and legacies of a decedent should be paid. A bequest cannot be charged upon the real estate except by the express intention of the testator or necessary implication from the will.</p>

<p>A corporation cannot take a stay of execution. The thirty days within which damages assessed by viewers against railroad companies mustbe paid under section 11 of the act of February 19 th, 1849, is not such a stay of execution as is contemplated by section 6 of the act of October 13th, 1857. Where a certain number of days are given by law within which to do an act, one of them is included and the other excluded. (Thomas v. Affliek, 4 H. 14, and Barber v. Chandler, 5 H. 48, doubted.)</p>

<p>No contract can be made by the directors of a company, unless all be present or be notified to attend, or it is done at a regular meeting of the board. Where the board of directors is fixed at a certain number, there must be a majority of that number present in order to constitute a quorum, even if the board is not full at the time. A director, if he is present, but keeps silent and takes no part in what is being done, does not bind the company. When no agency is proved, the president of a corporation has no power to bind it by his contracts. When an agent agrees to do a piece of work for a certain sum, and after its performance the principal promises to pay him more, this is void for want of a consideration.</p>

<p>When property is levied upon and sold by tbe sheriff, the costs of sale must be paid in preference to any lien.</p> <p>The benefit of the three hundred dollar exemption law can only be claimed against judgments in actions founded on contracts; when a person brings a suit, and is ordered to pay the costs, he cannot take advantage of its exemption.</p>

<p>In an issue directed to try tbe validity of a judgment, no attorney’s fee can be taxed. When a witness attends at the request of a party, he is entitled to his costs. The mileage of a witness must be calculated by the distance by the nearest travelled route to the place of trial.</p>

<p>A warranty may be made before, as well as at the time of sale; when one was made two days before the sale of a horse, it is a question of fact for the jury, whether he was purchased upon the strength of it.</p>

<p>When a judgment is entered with a stay of execution till due, this is an implied waiver of stay after the judgment is payable; if it is revived by scire facias, the same rule exists.</p>

<p>A summons must be issued at least ten days before it is returnable.</p>

<p>When an appearance was entered on the same day that judgment by default was taken, the judgment is void and will be set aside.</p> <p>A narr must be filed before a judgment bf default can be taken.</p>

<p>A judgment cannot be taken by default when the constable does not swear that he has served the summons on-the defendant. When the latter resides out of the county, a summons, returnable five days after it is issued, is void.</p>

<p>AVhen property has been levied upon and extended at a fixed rental, this does not prevent a subsequent lien creditor without actual notice from issuing execution; but if the property is not condemned, he must pay the costs; if it is, it can be sold. The fact that the matter was pending in court is not a sufficient notice.</p>

<p>When one of two guardians has been discharged by the Orphans’ Court, the other afterwards becomes insolvent, and the person who had gone bail for both of them pays the money due by the latter to his ward, the surety cannot demand the amount paid from the discharged guardian.</p>

<p>A man purchased land, and died, leaving a mother, brothers, and sisters of the half blood, and a widow, who "gave birth to a posthumous child, who died without issue. Held, that the mother of the first purchaser is entitled to the fee in preference to his widow; but the half-brothers and sisters inherit the fee in preference to the mother.</p> <p>In Pennsylvania, land will lineally ascend, and uncles and aunts of the half blood will inherit in preference to a mother, who is not of the blood of the first purchaser.</p>

<p>When an act of Assembly directs a road to be opened, it means that it must be graded, smoothed ofij the proper bridges erected, and made ready for travel. A mandamus will be awarded to compel this.</p>

<p>When a judgment is obtained against a man who has an interest in property, either by way of executory devise or contingent or vested remainder, it is a lien upon this property, and must be preferred' to those obtained' after the party has acquired a complete title.</p>

<p>In an action on a bond for the faithful performance of a duty, no affidavit of defence is required, as it is not a bond for the payment of money.</p>

<p>The prothonotary must be requested to tax the 'costs when the party wishes to raise the question as to their validity. The fact that the officer was directed to keep the money in his hands, and not pay it over to the opposite party is not a sufficient reason to quash the appeal.</p> <p>A judgment fee cannot be taxed on an award of arbitration that is appealed from. (Butcher v. Scott, 2 Penna. Law Journal, 287, distinguished.)</p>

<p>An attachment execution should not be served upon the agent of a corporation, because it has funds in its possession belonging to the original debtor, unless the money is actually in the hands of such agent; it should be served upon the president, treasurer or other officer having possession of such funds.</p>

<p>It is no cause for setting aside a judgment that tliere is a variance between the property described in the mortgage and the scire facias issued thereon. A sale on a levari facias by the sheriff on the Wednesday following the Monday on which the writ was returnable, is not irregular. A mortgagor may set off a judgment held by him against a mortgagee, and a general judgment may be set off against a special judgment in rem, but not vice versó.</p>

<p>When part of the set-off relied upon in an affidavit of defence is apparently barred by the statute of limitations, but is not separated from that part which is good, this is not a sufficient affidavit of defence.</p>

<p>When there is an award of arbitrators under a verbal agreement to submit matters in dispute, judgment cannot be taken oh this award for want of a sufficient affidavit of defence.</p>

<p>Viewers have no right to give damages for any injury not set forth in the petition of the party injured, nor for any done more than one year before the presenting of the petition. The general statute of limitation also applies to such claims.</p>

<p>When a sequestrator is appointed to take charge of all the real estate, goods, chattels, credits, rents, issues, profits, and ellects of a corporation, he is entitled to all the property of every description belonging to the company.</p> <p>When an insurance company takes some risks upon the principle of mutual insurance with premium notes, and others for cash, those of the latter class have no claim, in case of loss, upon the notes of the former.</p>

<p>The accounts of a county treasurer were settled by the auditor-general of Pennsylvania, a balance found against him, and a transcript sent to the proper county to be filed; the prothonotary entered it up by mistake for a much smaller sum, and subsequently judgments were filed covering all the defendant’s real estate. Held, in a suit against the surety, that this was no defence for him. In a suit by the commonwealth upon a bond for the faithful performance of the duties of an office judgment can be taken for want of an affidavit of defence (Dauphin and Susquehanna Coal Company v. Dasher et al. {ante, 148) distinguished).</p>

<p>A formal defect in a summons is waived, if the party does not object to it at the earliest possible time when the court is in session.</p>

<p>When a testator directs the proceeds of his real estate, if sold, to be divided equally among his children, and one of them dies after the sale of the land, but before it -was paid for, his share goes to his personal representatives, not to his heirs.</p>

<p>Where a man is in debt he cannot convey property to his wife, except for adequate consideration paid from her own separate property. A judgment against a married woman is primó facie void; and when payment of it is demanded before an auditor, he should take testimony to establish its validity.</p>

<p>In a petition to appoint viewers to lay out a public road, the township in which it is to be opened must be stated. A public road cannot be laid out on top of another public road, even though the latter be such only by prescription.</p>

<p>A person cannot claim the benefit of the three hundred dollar exemption law after his property has been sold at sheriff's sale, even when the Hen upon which it was sold had been filed against a former owner of the property prior to the act of April 9th, 1849. The act of April 8th, 1859, made no change in this particular. If a judgment has been entered against a man after his property has been sold at sheriff’s sale, it is no lien, and the debtor is entitled to take the surplus out of court after discharging existing incumbrances.</p>

<p>A court of equity lias the undoubted right to determine all disputed facts in a case within its jurisdiction, and need not direct an issue. When a person gave to another certain property to hold as trustee for his children, and after the death of the former, it was needed for the payment of his debts, this is such a case of fraud and trust as comes within equity jurisdiction; and it is not ousted because there might he some remedy at law. When property is given away in order to deprive the widow of her distributive share, that is a fraud cognizable in chancery. When the court is satisfied of the truth of a matter asserted in the bill and denied in the answer, it need not be proved by two witnesses.</p>

<p>A board of arbitrators have the same power over costs as a jury; and, in an action for words spoken, if they award a sum less than 40 shillings and costs, the plaintiff shall recover no more costs than damages.</p>

<p>When the person who laid out a town nradeadeed of the streets to the trustees for the use of the public, the town council have no authority to erect a building for a fire-engine house upon any portion of the streets; the fact that it was in a place not used for travel makes no difference. Such a building, if erected, would be a nuisance which could be abated, and those authorizing its construction would be liable to indictment, and probably would be personally liable for the money so wasted. Before the commencement of the house a bill of equity for an injunction is the proper remedy. The attorney-general on behalf of the commonwealth and tax-payers whose lots front on the street opposite the site of the proposed building are the proper complainants, and the mayor, contractor-, and members of the town council who voted for the erection of the building are the proper respondents. The fact that one of the latter has been omitted will not vitiate the bill. The borough is not a proper party. A perpetual injunction will be granted against such borough officers, although they only hold their offices for a limited period.</p>

<p>The failure of an applicant for the benefit of the insolvent laws to appear on the day fixed for hearing works a forfeiture of the bond, and the court has no power to relieve the petitioner or his surety.</p>

<p>A transcript certified by a justice of the peace, whose term of office has expired, is void, and will be stricken off by the court upon motion. The docket.of such justice should.be given to his successor in office, and transcripts should, in ali cases, be certified by the latter.</p>

<p>In an action of slander, special bail is demandable only where special damage is shown, or the defendant is about to go out of the jurisdiction of the court.</p>

<p>Wien viewers are appointed to lay out a street under a private act of Assembly, and after tire view, but before the report was confirmed, a new law was passed providing another mode for opening streets, the court cannot confirm the report, and the proceedings must fall.</p>

<p>After viewers liad presented their report at the regular term of court, and after exceptions to it had been filed, a petition for a review presented at an adjourned court is in time. The report of viewers in a road case will not bo set aside because one or them asked the owner of land how much damages he would claim for opening the road through it.</p>

<p>Where a man voted in a particular county, this is sufficient evidence of his residence in that county to allow a commission of lunacy to be issued there.</p>

<p>When property is assigned to a person upon his promising the assignor that he will pay all his debts, such promise is binding though not in writing, as it does not come within the statute of frauds. Any creditor may bring suit against the promiser, although the promise was not made to him, and such action is a sufficient acceptance of it. The original debtor need not be discharged.</p>

<p>The claims of mechanics or materialmen take precedence from the commencement of the building against all other claims, and share ratably among themselves.</p> <p>A mechanic or materialman need only show the person in possession of the property against which the lien was filed; the burden of proof then rests upon a party disputing the validity of the lien to disprove his title.</p> <p>A mechanic’s lien that only describes the property as a certain frame building, gives the size of the house, and the township and county in which it is situated, and also that the work was done in the erection of the said house and its appurtenances, is fatally defective.</p> <p>Where sale of property has been made by the sheriff, and the proceeds brought into court for distribution, and referred to an auditor, each person claiming a lien is permitted to controvert the validity of all other liens. This should be done before the auditor, not by a motion .to strike off the lien or by demurrer.</p> <p>The claims of mechanics and materialmen are not evidence of a debt, but merely of a claim, and the amount must be made out by proof.</p> <p>(Librandt et al. v. Eberly, 12 C. 347, distinguished.)</p>

<p>Where a person confessed a judgment to another for the purpose of delaying the creditors of the former in the collection of their debts, a court of equity, on the application of the debtor, -will not set aside such judgment, although it tvas obtained by misrepresentation and fraud, and the party confessing it was the mother-in-law of the party to whom it was given.</p>

<p>A county is liable to pay tlie costs of arresting and committing vagrants or drunk and disorderly persons, discharged from the county prison, who are unable to pay them. An officer cannot charge mileage for taking a person arrested to the office of a magistrate and from thence to the jail, when the distance is less than one mile.</p>

<p>When money was due to a married woman as heir from the estate of a decedent, and notes were given in the name of her husband for the amount, they are the property of the wife, and do not go to the personal representatives of her husband.</p>

<p>In an action before a justice of the peace on a claim above one hundred dollars the plaintiff need not be present when the defendant confesses judgment.</p>

<p>The order of the President of the United States, under the act of Congress conferring on him the power of prescribing the 'modus operandi of calling out the militia, has all the force of an act of Congress. A drafted militiaman, so called out, cannot pay a fine in lieu of service, unless the provost-marshal fails to take him.</p>

<p>Ho notice of the revival of mortgage need be served upon a terre-tenant. A mortgage given to secure dower should not be revived until one year after the death of the widow. An executor of an administrator is tiie proper-party to sue on a mortgage given to secure the dower of the widow of the administrator’s intestate, after her death. The court has no power to open an irregular judgment after seven years have elapsed from the time of filing it upon record.</p>

<p>A devise to a person of the proceeds of real estate during life, and upon his death to his heirs in fee simple, gives to the former not a life estate, hut one in fee.</p>

<p>A motion to strike off a judgment and all subsequent proceedings is too late after a sale of the property was made, and a deed for it was executed by the sheriff. Haworth et al. v. Wallace, 2 H. 118, doubted.</p>

<p>An action of account render cannot be brought by one partner against another unless it can be proved that money belonging to the firm came into the hands of the defendant.</p>

<p>A devise of the use and income of a sum of money to a person during life, and upon his death without issue, the principal to revert to the estate of the testator, gives to the devisee only the right to the interest of the money during Ms life.</p> <p>Rewalt v. Ulrich, 11II. 388, distinguished.</p>

<p>Where property is rented for a portion of the crops payable in kind, and it is sold at sheriff’s sale before the lessor has received his share, the purchaser will take all that belonged to the former owner, whether placed in the barn or growing in the fields.</p>

<p>A'divorce will not be granted on facts charged in the petition and admitted in the answer; there must be corroborating proof.</p>

<p>Where a main trunk railway company furnished the motive power, engineers, and conductors to transport the cars of another intersecting railway company on its road, it is responsible for an injury done to a brakesman employed by and on the cars of the intersecting company, through the negligence of its engineer.</p> <p>Such brakesman is not a servant or employee of the first-named company so as to protect it from responsibility.</p> <p>The proper test of service is to consider who employs, pays, and has the right to discharge such brakesman.</p> <p>The burden of proof rests on the person suing in such cases, and to justify a recovery he must show that carelessness or want of skill in the engineer caused the injury.</p> <p>In such a case tiie measure of damages is the pecuniary loss sustained; no allowance can be made for the suffering.</p>

<p>When personal property, claimed to be sold, is left in the possession of the vendor, this is evidence of fraud per se, and the vendee has no title as against the creditors of the seller. An engine fastened to the soil is part of the realty; but when the parties have treated it as personal property, they are estopped from denying it. If personal property is given to secure a debt, and all that it sells for above that is to belong to the original owner, his interest may be sold for the benefit of his creditors.</p>

<p>A bill of discovery will lie against the plaintiff in an action at law arising ex contractu by the defendant in order to obtain testimony to aid in his defence.</p>

<p>A mandamus will not be granted to compel the school directors of a township to repay money paid by men drafted into the army to procure substitutes; such payment is voluntary, and does not create a debt due by the township ; even if the claim were binding, it would have to be demanded from first, the school directors; second, the supervisors; and thirdly, the board of election officers, before a mandamus could be applied for.</p>

<p>When a lease, by -which the tenant contracts to j>ay one-half of the taxes, is made or renewed after the enactment of a law imposing a new tax, but before its assessment, the tenant is bound to pay his share of this tax.</p>

<p>A groom lias no. lien for his wages upon the horses he attends upon; but if he is obliged to find food for them, or to pay or give his note for claims for boarding them, he has a lien upon them for that amount.</p>

<p>A mandamus at the relation of a private person will not he granted to compel a township supervisor to erect a bridge; the proper remedy is by indictment. "When there is more than one supervisor in a township, one alone cannot order the opening of a road or the building of a bridge.</p>

<p>The petition of a railroad company which sets forth that, having failed to agree with the owner of land as to its value, they had taken it for the necessary purpose of putting down additional tracks, and otherwise using it in the maintenance of their road, is fatally defective, and the proceeding will be set aside. Viewers appointed to assess the value of land taken by a railroad company must find in their repoz't whether such appropriation was necessary; if they do not find it necessary, the land cannot be taken.</p>

<p>A mistake in entitling or numbering a suit will not afPect the validity of the proceedings. A draft filed of land intended to be taken by a railroad company need not state the kind of buildings or other improvements upon it. "When land was taken by a railroad company, a bond filed to secure the payment of its value, an appraisement made, and afterwards all the proceedings except the bond were set aside by the Court, if the owner builds houses on the property to prevent the company from faking it, the latter will still be allowed to have it, and need not pay for such improvements.</p>

<p>The general railroad act of 1849, and the supplements thereto of April 27th, 1855, and April 9th, 1856, have no application to the Pennsylvania Bail-road Company, incorporated in 1846, or to any other pre-existing railroad companies, and although the legislature’ have the power to modify the method by which damages are assessed for lands taken by such companies, the acts referred to are not an exercise of it.</p>

<p>In. a statutory proceeding, as in the assessment of damages by viewers, for lands taken by a railroad company, the right to costs depends altogether upon the wording of the act of Assembly providing for such proceeding; therefore, when the act provided, “ and if any damages be awarded and the report be confirmed by said court, judgment shall be entered thereon, and if the amount thereof be not paid, execution may issue thereon, as in other cases of debt, for the sum awarded, and the costs and expenses incurred shall be defrayed by the said railroad company,” no costs will be allowed to the owner of lands taken unless damages are awarded and the report confirmed.</p>

<p>When one person gave to another a certain sum of money in order to settle a claim for which the former was liable, and the latter compromised it for a less amount than was given to him, and kept the balance, keeping the fact concealed from his principal, this was such a case of fraud as comes within the jurisdiction of a court of equity, and a bill will lie even against the personal representatives of the agent. A prayer for a discovery will not be granted, unless the bill is in proper form with the necessary averments. A bill in equity should contain all matters necessary to show that a claim is not barred by the statute of limitations. In a case oí fraud, the statute does not commence to run until the discovery.</p>

<p>An auditor’s report is final after confirmation; and even if there is a mistake in it, the court has no power to appoint another auditor to determine questions properly before the former one. It is legal to appoint an auditor to find the amount due to a widow from her husband’s estate, and also to determine its future distribution after her death.</p>

<p>A citation to settle an account will not be issued against an assignee for the benefit of creditors after more than twenty years have elapsed from the date of the assignment.</p> <p>Any presumption that might arise against the assignee from a settlement between him and the assignor, in which it is stated that all matters of account embraced in the deed of assignment are left out and excluded, will be rebutted by the fact that the assignor was discharged under the bankrupt and insolvent laws, and in the schedule of his property made no mention of any money coming to him from his former assignee; and the fact that the latter lived twelve years after the above-mentioned writing, and the citation was not asked for until after his death.</p>

<p>A court of equity has no power to enjoin a tax collector from selling property under a void or irregular warrant. The proper remedy is by action of trespass.</p> <p>The clerk constitutes no part of an election board for the purpose of assessing taxes, and his absence will not make a tax-warrant void. An election board has the power to choose a secretary, and a tax-warrant signed by him, as such, is regular. When a tax was assessed, persons to collect, and a treasurer to receive it, appointed by an election board, before their successors were elected, a tax-warrant issued after such election, and before their successors were duly inducted, is regular.</p>

<p>A fuUing-mill, -nrMcli was repaired, a new shed erected alongside of it, and new machinery placed in it to turn it into a grist-mill, is not such a new building as will subject it to a mechanics’ lien for the work done or materials furnished.</p> <p>The question as to whether a building is an old one repaired, or a new one erected, is a question of law for the court.</p>

<p>"When an executor or administrator resides within the State, a judgment against his decedent should not be revived on two nihils, without giving him notice. A judgment upon two nihils, entered nine days after the return of the second, is taken prematurely.</p> <p>Ajudgment against a decedent in his lifetime, and revived against an administrator fraudulently appointed by the contrivance of persons having no interest in the estate or the claims against it, will be opened, although seven years had elapsed after its revival.</p>

<p>An administrator or executor can appeal from an award of arbitrators without paying costs, even where he took out the rule of reference.</p>

<p>The mayor and city council have no power to bind the municipality to pay ■ the expenses of a visit to their city by the President of the United States, or any other person or persons, although a resolution had been adopted by them, inviting him to come; and no such power is given by the charter of the city of Harrisburg. But the corporation is responsible for the pay of special policemen employed to keep order on such an occasion. The court will grant an injunction to prevent the payment of such claims, although articles have been furnished and expenses incurred on the faith of a resolution passed by the city council. Such injunction may be prayed for by any taxpayer; it need not be asked for by the attorney-general.</p> <p>(Reynold v. The Mayor of Albany, 8 Barb. 597, and Ketchum v. The City of Buffalo, 4 Kern, 856, distinguished.)</p>

<p>A city lias general power over its streets and alleys to keep them in good order and to regulate their use for the benefit of the public. The legislature has the power to authorize the construction of a railroad over the streets of a city even against its will. In the absence of any statutory provision a railway company is bound to keep in repair that part of the streets of a city occupied by it, but the city cannot pass an ordinance compelling it to keep in order any more. If the track of a railroad company is out of order so that it cannot be crossed with safety it may be indicted.</p> <p>A city may to a certain extent control and regulate the action of other corporations within its limits by ordinance ; but it cannot prohibit a city passenger railway company, chartered by the legislature, from running its cars upon its streets for the non-compliance with the provisions of an ordi- • nance.</p> <p>Note. — There are some portions of this opinion which may need modification. It is quite probable that the city corporation could be held responsible to individuals injured by reason of the railroad track being out of repair; but if made pay damages, it would have remedy even against the railroad company. Possibly the city authorities might be indictable for a neglect of duty in suffering the street to become deep, or ponderous, or a public nuisance, but the city might put the criminal law in motion against the company. The possibility of such action or indictment will go far towards justifying the enactment of the ordinance, so as to avoid the responsibility.</p>

<p>When a party has demanded an appeal from a justice of the peace within twenty days after judgment, but was prevented from obtaining it until the time had expired by the severe illness of the magistrate, this appeal is good.</p>

<p>Unliquidated damages arising from a tort cannot be set fortli in an affidavit of defence to an action ex contractu, as they are not a fair subject of set-off. No more than six per cent, interest can be lawfully contracted for, or allowed by the court in Pennsylvania.</p>

<p>A bond given to the township auditors by a supervisor to secure the faithful performance of his duties is valid; but it must be sued upon in the name of the township.</p> <p>The fact that the bond was never approved by the township officers, and was given by only one supervisor, when there were two in the township, does not render it void.</p>

<p>The fact that a woman cohabited with and spoke of a man as her husband, is sufficient to bar her claim to the estate of another man, whom she claimed to have married during the lifetime of the former; proof of an actual marriage is only necessary in indictments for adultery or actions for criminal conversation. A woman is not debarred from claiming her husband’s estate under the laws relating to escheat by the fact that she had eloped from him, and was living with an adulterer.</p> <p>A woman having deserted her husband without sufficient cause, and not living with him at the time of his death, cannot claim three hundred dollars out of his estate. The fact that a man called another his son, and the latter bore the former’s name, is sufficient to prove that the son was legitimate. A marriage cannot be inferred because a man and woman continue to cohabit as husband and wife after the death of another husband of the wife.</p>

<p>A city is bound to pay the damages caused by the opening of its streets, lanes, and alleys, although by its charter the county in which it was situated was liable, when a subsequent act of Assembly requires it to do so.</p> <p>Such a law is constitutional, as the legislature has the power to change a city charter, and is not made invalid by the fact that the creditor must obtain his money from a less solvent debtor. The city is liable even when the petition for opening the streets and assessing the damages was presented to the court before the passage of the act, if the damages were not awarded and confirmed after it became a law.</p>

<p>In a foreign attachment no affidavit showing the defendant to be the citizen of another State or country, and that he owed the plaintiff a real subsisting debt is necessary. The property of a person who leaves his residence with the avowed intention of returning soon, but remains away eighteen months, and enters no appearance when suit is brought, is subject to foreign attachment. It need not be shown that he has gained a residence elsewhere.</p>

<p>County bonds are within the act of 29th of April, 1844, imposing a State tax upon money at interest.</p> <p>A county subscribed to the stock of a railroad company and paid its subscription in bonds bearing six per cent, interest, having been authorized by law to do so. By the same law the railroad was required to pay to the county a dividend of six per cent, on its stock until the road was completed; therefore the company undertook the payment of the interest on these county bonds. Held, that the county treasurer was bound to see that the State tax on the interest was retained, as required by the act of 1844, and on failure so to do, was liable to a penalty of twelve per cent, on the amount so due the Commonwealth. The fact that the law which directed him to retain the money was obscure, will not relieve him.</p>

<p>Under tlie act of 29th of April, 1844, imposing a tax on the dividends of corpiorations, the first day of November is the time to and from which the profits are to be computed. When the statement of a conrpany does not show what part of the dividends of a year was made before November 1st, and what after, but mixes them all together, the State officers can calculate the tax upon the whole amount, as if all was made after the 1st of November.</p>

<p>A miller, who purchases grain, grinds it into flour, and sells it, is a dealer, and must take out a mercantile license under the act of 22d April, 1846,</p>

<p>When a charter was given by the legislature to a corporation, exempting it from taxation for a certain time, in consideration of a sum of money paid into the State treasury, such company is relieved from the payment of State taxes, although the governor, at the time of signing the bill, considered that it was not exempted, and the president of the company wrote to him, after he had signed it, that the corporation tax would still be paid by it. Such a charter will not relieve the corporation from taxes due and unpaid at time of granting it.</p>

<p>The sureties on a register’s bond conditioned for the faithful performance of his duties, and that he will ]oay over all money received for the commonwealth, are not responsible for his failure to pay to the State sums received by him as collateral inheritance tax, when the duty of collecting it had been imposed upon him by another statute, and a different form of bond prescribed. Bail cannot be held by the letter when the case does not come within the spirit of their bonds.</p>

<p>A county, in order to obtain an abatement of its tax for prompt payment, must pay it in full, as fixed by tbe revenue board; no allowance can be made for exonerations. The collectors and treasurer may be permitted to deduct their commissions from the sum so fixed. The treasurer cannot receive a commission on the amount retained by the tax collectors or himself; neither is paid into the State treasury; nor on exonerations of militia fines, or tavern or store licenses exonerated. He is entitled to a percentage for liquor license taxes collected and paid over. There is no law authorizing a tax on millers as such.</p> <p>If the amount assessed and collected for State taxes exceeds the valuation fixed by the revenue commissioners, it must be paid into the State treasury under the act of 22d April, 1846.- Where no quarterly statements are made by the county treasurer, and the money not paid over quarterly to the State, no commission can be allowed on it, as it is the duty of the treasurer to show when it was received.</p> <p>No fee can be paid to an attorney at law for trying a claim for taxes against a , ■ delinquent storekeeper; the act makes it the duty of the attorney-general or his deputy to collect it. The county treasurer is permitted to employ an attorney to recover militia fines from collectors who fail to pay over, and the lawyer employed can retain his fee out of the money collected.</p>

<p>In an action by tbe State for taxes, judgment cannot be taken for want of a special affidavit of defence, where the narr merely contained the common counts, and no copy of the claim, as settled by the accounting department, is set forth. The commonwealth must count specially on the balance due, or file a copy of the account, else it cannot demand a special affidavit of defence.</p>

<p>Under the act of 16th May, 1861, the tax upon discounts is not to be computed upon the face value of the paper discounted, but upon the actual profit'of the transaction. This law has not a retroactive efíéct, and imposes no tax upon transactions before its date. Under this law brokers and private bankers are obliged to so keep their accounts as to be able to make a statement of them to the treasury department on the first Monday in December, or they will have to pay the penalty imposed by law.</p>

<p>The sheriff's return on a summons that he served it on a certain person, the superintendent of a certain corporation, is conclusive as to the existence of the company and the official position of the person served, and the party ■will not be allowed to contradict it.</p> <p>A general affidavit of defence will prevent the commonwealth from taking judgment for want of a sufficient affidavit, when the narr merely contained the common counts, and the balance due, as settled by the accounting department, was not declared on specially.</p>

<p>Under the act of 16th of May, 1861, imposing a tax upon the discounts of private bankers and brokers, the sum is to be computed upon the actual profits of the business, deducting all losses incurred and interest paid on money to carry on business. Where these two equal or exceed the profits, no tax is to be paid.</p>

<p>An act of Assembly imposing a tax on the tonnage passing through a State to or from other States or foreign countries, upon any railway, canal, river, or any other mode of conveyance, is in violation of the Constitution of the United States, and is void.</p> <p>A statute imposing a tax required quarterly returns to be made and a tax to be paid before a particular day; there was less than three months between the time of passing the law and that fixed for the return to be made. Held, that that would not relieve from taxes during that period. The act of 25th August, 1864, does not repeal that of SOth April, 1864.</p> <p>An act of Assembly authorizing a railway to be built upon the payment of a certain sum to the State, and imposing a tax upon the same ratio as upon other property of a like kind within the commonwealth, is not such a contract between the State and the company as will prevent the legislature from imposing other taxes upon it.</p> <p>(Pennsylvania Railroad Company v. The Commonwealth, 3 Grant, 129, distinguished.)</p>

<p>An act of Assembly imposing a tax upon freight sent from this State into 'any other, or from any other into this, is contrary to the Constitution of the United States, and is void. The legislature has the power to lay a tax upon freight carried from place to place within the State.</p>

<p>A taxpayer, having applied to the auditor-general, to know whether he owed any taxes to the State, and having been informed by that officer that he did not, is not liable to any penalty for not paying those taxes.</p> <p>The fact that taxes were paid, and receipts given for subsequent years, will not relieve the taxpayers from money due for preceding years ; nor will a letter to them from the auditor-general that no taxes were due by them to the State. The act of 1st May, 1861, does not debar the commonwealth from claiming taxes due prior to its passage.</p> <p>The State cannot claim interest upon a balance of taxes struck from three months after its settlements, when only part of the amount was legally due by the taxpayer.</p>

<p>Bringing suit is sufficient notice to a party of the settlement of a claim for taxes against him by the commonwealth. He must appeal within sixty days after the commencement of the action. A corporation is bound to pay a tax on stock dividends the same as on those made in cash.</p>

<p>The Congress of the United States has the power under the Federal Constitution, by an act creating national banks, to authorize the States to impose taxes upon them, but the mode prescribed in the statute must be strictly followed by the State legislatures, as they have no power independent of the act of Congress.</p> <p>The act of 22d of August, 1864, does not take from the State the power to impose future taxes upon banks complying with its provisions.</p>

<p>A corporation chartered under the laws of another State, and owning oil wells in Pennsylvania, is not exempt from taxation under the acts of 21st of April, 1854, and 1st of April, 1863. A corporation which paid a tax on its dividends, is also liable to pay one on its net earnings, under the act of 30th of April, 1864.</p> <p>A law of the State of Pennsylvania imposing a tax on a foreign corporation doing business within its borders, is not contrary to the Constitution of the United States.</p>

<p>A corporation exempted from a tax on its dividends by the act of 12th April, 1859, is liable to pay one on its net earnings under the act of 30th April, 1864.</p> <p>A particular mode of imposing taxes on a corporation provided by an act authorizing it to do business within the State of Pennsylvania is changed by a general tax law, although no mention is made of that particular company.</p>

<p>A corporation was chartered prior to the act of 30th April, 1864, and exempted from paying any tax on its dividends on condition of paying a bonus into the State treasury; after its passage the company was authorized to increase its capital stock. Held, that it was liable to a tay under the act of 30th April, 1864, upon the amount of the net earnings of its increased, but not of its original capital.</p>

<p>An act of Assembly imposing a tax upon freight sent from this State into any other State or foreign country is contrary to the Constitution of the United States, and is void.</p> <p>The fact that Congress has never enacted any law regulating commerce between the States does not give the State legislatures power to do so.</p> <p>Pennsylvania Kailroad Company v. The Commonwealth, 3 Grant, 129, distinguished.</p>

<p>A corporation paying a tax on its capital stock, to be measured by the amount of its dividends, under the act of. 29th April, 1844, is liable to a tax on its net earnings, under the act of 30th April, 1864; and it must be charged with interest at the rate of 12 per cent, per annum upon the sum due until it is paid.</p>

<p>A corporation which has paid a bonus for its charter is not exempt from future taxation. One paying a tax on its capital stock, to be measured by the amount of its dividends, is also liable to a tax on its net earnings.</p> <p>A foreign corporation doing business within Pennsylvania is bound to pay a tax on its net earnings, and the fact that it also pays one to the State by which it is chartered does not relieve it.</p>

<p>Three hundred dollars cannot be allowed to the widow and children of an intestate under the act of 26th April, 1850, when his estate is insolvent, and the debts were contracted prior to July 4th, 1849.</p> <p>The act of 26th April, 1850, must be construed in connection with that of 9th. April, 1849. Any law exempting a greater amount of property from levy and sale on execution than was so exempted at the time of contracting the debt, is unconstitutional and void.</p>

<p>When the validity of an assignment through which a person claims a share in an estate is disputed, the Orphans’ Court cannot decide it; an issue must he directed to the Court of Common Pleas.</p>

<p>An attorney-at-law, acting as a guardian, is entitled to compensation for professional services rendered to his ward’s estate.</p>

<p>A widow, being administratrix of the estate of her husband, did not settle it up, but after carrying on his business for some time in her own name, and using his personal property, sold it all, including her own claim for three hundred dollars out of his estate, for a certain sum, and with an agreement that her vendee should pay all her husband’s debts. .Held, That the estate of the administratrix was responsible for all of her decedent’s debts, which her vendee failed to pay.</p> <p>Held, further, That not having collected three hundred dollars out of her husband’s estate, but having merely sold her right to it, her estate must be charged with that amount.</p>

<p>The Orphans’ Court -will not make a decree compelling the executors of a decedent to make a deed for land contracted to be sold by him in his lifetime, when the terms of the contract are not fully proved.</p> <p>A receipt for a sum of money, part of the price of a piece of land, is not a sufficient writing to take the case out of the statute of frauds, when it does not set forth the terms of the agreement upon which the land is sold.</p>

<p>When a retiring guardian settles what appears on its face to be a partial account, exceptions may be filed to it, as if it were a final one.</p> <p>Six months’ time in which to invest a ward’s money will not be allowed to a guardian unless it be paid to him unexpectedly and at a time of the year in which it is difficult to loan money.</p> <p>A guardian is responsible for the loss of the rents of his ward’s real estate, unless he has required part of the money to be paid in advance, or taken security for its payment.</p>

<p>An appraisement of the real- estate of decedent in order to set apart three hundred dollars’ worth for the use of the widow will be set aside when the value fixed was evidently erroneous. The appraisers should not take into consideration that the property was for the use of the widow, that she only had a life estate in it, or that she had helped to pay for it.</p>

<p>A petition to the Orphans’ Court for an order to sell the real estate of a decedent for the payment of his debts, need not state that the property described is all the-real estate of which he died seized. But an account of the personal assets.must be presented to the court.</p>

<p>The real estate of a decedent was ordered by the Orphans’ Court to be sold subject to a mortgage, but by mistake sold discharged of the incumbrance, the sale confirmed by the court, and the lien paid off by the executor.</p> <p>Held, That he must be surcharged with the amount of the mortgage. Hddfurther, That an auditor appointed to pass upon the executor’s account had not the power to. correct this mistake. Held further, That after a lapse of fifteen years, the Orphans’ Court will not amend their records so as to correct such an error, especially upon parol evidence.</p> <p>A party is too late in demanding an issue after an auditor has decided the question against him; such demand must be made at an early stage of the proceedings, and should be in writing.</p> <p>When an executor obtained more money by not entering, and proceeding upon a judgment held by him, he is not responsible to the heirs of his decedent for a neglect of duty.</p> <p>When exceptions to an executor’s account have been sustained, he must be charged with the expense of the audit.</p>

<p>When a public escheator failed to pay to the commonwealth money collected by him in his official capacity, an informer has no claim upon his estate for his commission.</p> <p>Claims not barred by the statute of limitations at the time of the death of the decedent may be recovered in the Orphans’ Court any time before the settling up of the estate.</p>

<p>A man made a will leaving all his property to his children, share and share alike; and if any of them should die without lawful issue, then their shares to be divided among his other children. In the latter part of the instrument, he directs his personal property to be sold and the proceeds paid to his heirs, as they become of age, share and share alike. Two of his children died, after coming of age, without issue. Held, That their shares in his real property went to their brothers and sisters, but that their administrators were entitled to their portions of the personal property.</p>

<p>The Orphans’ Court has no power over §300 secured by law to the widow and family of a decedent after the appraisement is made and approved.</p> <p>When a widow has failed to demand an appraisement of personal property belonging to her late husband, under the three hundred dollar exemption law, until after an appraisement of all the effects was completed and returned to the register’s office, it was held that she was too late, and precluded.</p> <p>The value of the personal effects being under three hundred dollars, and one-half thereof having been bequeathed to the widow, and the other half to the child of the deceased; the widow having elected to take under the will, cannot demand any portion under the exemption law, as it would render that provision of the will inoperative.</p>

<p>A trustee cannot be charged with interest upon the interest of the trust fund remaining in his hands, when it was not called for or demanded. The profits of the sale of part of the trust property may be treated as interest, instead of adding it to the principal.</p>

<p>Where a testatrix gave by her will certain specific legacies to some of her collateral kindred, and directed that the residue of her estate, after paying the legacies aforesaid, “ and other legal demands,” should be equally divided among her brothers and sisters, naming them, the collateral inheritance tax due on the specific legacies must be deducted from those legacies by the executor, and not from the general estate.</p>

<p>Persons were appointed to appraise the personal estate of a decedent, and also to set aside three hundred dollars for the widow. They set apart $41 worth of furniture. After the return of the appraisement to the register of wills, one of the appraisers added $259 in money to the part given to the widow. Held, That this act vías irregular and void.</p> <p>Held, further, That the widow did not have such an interest in the $259, as descended to her heirs.</p>

<p>An executor, having sold property of the decedent, must be charged with the price mentioned in his deed.</p> <p>Claims for sums of money lent by the wife to the husband in his lifetime, may be demanded before an auditor upon his executor’s account.</p> <p>The Orphans’ Court has no power to open an executor’s account, in order to let in the widow’s claim for three hundred dollars; her only remedy is by an action against the executor.</p> <p>A wife may lend money to her husband, and sue his executors for it after his death; the statute of limitations does not run during the coverture.</p>

<p>The interest of an heir in the share set apart for the widow, is the same as in the other portions of the estate, and hence, when the land of a decedent was taken by the heirs under the appraisement, and the widow’s third charged upon the land, upon her death the estate of a deceased feme covert heir will go to her husband’s assignee for the life of the husband, and after his death, to her heirs at law.</p>

<p>When a decedent had promised his sons to make them a gift of certain bonds, some six or seven years before his death, but did not actually make the gift until nine days before he died, and when he was probably in extremis, it would seem that it was a donatio causa mortis, and not inter vivos ; but whichever it was, the widow is not entitled to have them brought into the administration account, and to get her third of them; she is only entitled to a distributive share of the personal property belonging to her husband at the time of his death; donatio causa mortis, if valid, takes effect from the time of the donation, and not from the time of the death.</p>

<p>Where the person named as legatee in a will is dead at the time of making it, the legacy is void, and the amount of the legacy will be distributed among the other persons of the same class as the intended legatee.</p>

<p>A. bequeathed a sum of money for the purchase of a'house and lot for the use and benefit of his wife and children “ during the period she remains my widow, and after her death the same shall descend to my heirs according to law,” and in a subsequent part of his will referred to the above bequest, providing that “such life-estate in said house directed to be purchased and the annual interest aforesaid to be in lieu of dower.”</p> <p>Held, that the widow took an estate in such house and lot durante viduitate, under the rule that “ a clearly expressed intention in one portion shall not yield to a doubtful construction in another portion of the same instrument.”</p> <p>That in Pennsylvania an estate in realty durante viduitate can be created without a limitation over upon the marriage of the widow, aliter as to personalty.</p> <p>That upon the widow’s marriage the land descended to and became vested in the heirs at law qua heirs; as devisees they would only take upon the widow’s death.</p>

<p>Two administrators can only demand the compensation that would have been paid to one, for although they may be involved in more trouble, yet the estate is not settled any better or quicker by two than by one.</p> <p>They will not be allowed commissions for collection of debts due by themselves to the intestate.</p>

<p>The only ground on which a son can recover wages from his father for services rendered, even though they are rendered after he has attained his majority, is by proving a contract by his father, to pay either a stipulated sum, -or as much as they were 'reasonably worth, and the rendition of the services in compliance with the bargain.</p> <p>Evidence of loose declarations of the father showing an intention to compensate, are insufficient to support such a claim.</p>

<p>A testator devised the occupancy of his real estate to his widow during life or widowhood, and upon her death or marriage, to his adopted daughter. The widow refused to take under the will, and claimed her dower. The land was sold for the payment of, debts. Held, that she was only entitled to her dower in the proceeds, and the balance of the interest must accumulate during her life or widowhood for the daughter.</p>

<p>Tbe widow of a decedent is not one of the parties who can take his real estate under section 10 of the act of 22d of April, 1856, by paying more for it than its appraised value.</p>

<p>A testator devised the occupancy of his real estate to his widow during life or widowhood, and upon her death or marriage, to his adopted daughter in fee. The widow refused to take under the will, and claimed her dower. The land was sold for the payment of debts.</p> <p>Held, That upon, the refusal of the widow to take, and demanding her dower, the balance of the interest of the fund, after paying to the widow her third, must be given to the daughter.</p> <p>Hawkins’s Estate, 1 Pearson, 444, qualified.</p>

<p>An. executor cannot buy any portion of the estate of his decedent, whether real or personal, either directly or through another person. The sale can be set aside on the petition of any person interested in the estate: it need not be on a review of the executor’s account.</p>

<p>A testator in Ms will directed a certain sum of money to be invested in stocks or real estate, the dividends, rents or profits of whieh were to be used in the support and education of his nephew until he attained the age of twenty-one, and then the stocks, money or land to be given to him or his heirs. The nephew died before attaining the age of twenty-one. Held, That this was a vested legacy, and upon the death of the devisee went to his legal representatives, and not to the residuary legatees of the testator.</p>

<p>When a person mortgages an imperfect title to real estate, and afterwards obtains a perfect one, that passes to his mortgagee.</p> <p>Where land is sold for taxes, and a bond without a warrant of attorney to confess judgment payable in two years is given for the surplus over the amount of the tax and costs, the tax title is void. This bond is also defective when it describes the property as “ a balance on unseated land sold as the property of 0.”</p> <p>The assessment of taxes on land in the name of two different persons will not vitiate the sale, when the tax was not paid in the name of either.</p> <p>Land may be sold for the unpaid taxes of a former year, although it had formerly been sold for those of a subsequent year, and the title of the purchaser at the latter sale would be good.</p>

<p>An award of arbitrators for a certain sum of money “ in furniture” is void for uncertainty, and will not support an execution. The court has no power to treat the words “in furniture” as surplusage, and correct the award by striking them out.</p>

<p>When a rule of reference was taken out, but the arbitrators were not chosen within the time in which judgment could be taken for want of a sufficient affidavit of defence, the court will strike off the rule to arbitrate, and direct a judgment to be entered.</p>

<p>When a judgment is given at the request of an attorney who was not at the time counsel for the plaintiff, if the latter afterwards wishes to take advantage of this judgment, he must observe the conditions which accompany it.</p> <p>The court will not regard the answer to an illegal leading question.</p> <p>When an agreement is made that executions shall issue on judgments in a particular order, and it has been complied with, that is no reason for setting aside the judgment.</p>

<p>The court cannot examine a juror as to what took place in the jury room. Evidences to the comparison of handwriting cannot be received, but when not objected to at the time, its reception is not a ground fora new trial.</p> <p>The testimony of a witness as to a certain promissory note, though vague in not giving its date and form, should be considered by the jury, and an instruction to them not to consider it is error.</p> <p>A new trial will not be granted on the ground of after-discovered evidence, unless the party avers that he did not know of it at the time of the trial.</p>

<p>Tenants in common of mines are liable to account to each, other both at common law, under the statute of 4 Anne, c. 16, and under section 24 of the act of 25th April, 1850.</p> <p>Talcing ore from the surface of the earth or shallow pits is as much mining within the meaning of the law, as if' it were dug from deep mines.</p> <p>Tenants in common of an ore-bank can demand an account torn their co-tenants, whenever they take more than their share of ore; they need not wait until the whole bank is exhausted. They are liable to each other for ore used by themselves as well as for that sold. The fact that by agreement each tenant in common was given his own ore-pit does not debar them from demanding an account from each other. The fact that all parties continued to use these ore-banks for a long period of years without asking an account will not preclude any of them from demanding it. Any presumption arising from this long acquiescence may be rebutted by the fact that the respondent is now using and selling much larger quantities of ore than • formerly.</p>

<p>A father and son lived together on land of which the former was the tenant; the latter purchased a portion of it from the landlord by a parol agreement, took possession of it, and after a short time had a fence (which was afterwards straightened), run between it and the remainder of the land, and made valuable improvements, with the knowledge of his vendor. This whole property was afterwards recovered back from the vendor upon .an adverse title, which was sustained by tire Supreme Court. The vendee then purchased it and took a deed for it from the plaintiff in that suit. A second action of ejectment was brought by the original vendor against the former plaintiff and the vendee, who set up as a defence, his deed, but not his parol title; the land was recovered by the plaintiff) and this judgment also affirmed by the Supreme Court. The vendee, to avoid being turned out of his house, took a parol lease of the property from the original vendor upon receiving assurance from a deputy sheriff, in the former’s presence, that it would not affect his title. The lessor then made an agreement with his attorneys to give them one-half of the entire property, without reserving the right of his vendee. The latter’s interest was afterwards sold at sheriff's sale, and the purchaser tendered the price originally agreed to be paid to the vendor.</p> <p>Held, That there was such an open and notorious possession in this case, as took it out of the statute of frauds-; and the fact that possession was not taken immediately, and that the fence was afterwards straightened to correct a mistake, made no difference.</p> <p>Held, further, That the fact that the vendee afterwards purchased from the party who recovered in the first action, did not destroy his title; nor that after the trial of the second suit he took a lease from his original vendor.</p> <p>Held, further, That the possession of the vendee under a parol title was a sufficient notice to the purchasers (the attorneys) of all his title.</p> <p>Held, further, That a judgment against the vendee bound all his titles, legal and equitable, that the purchaser at sheriff’s sale was entitled to the property, upon tendering the price originally agreed upon, and that delay in offering it was excused by the uncertain nature of the title.</p> <p>Held, further, That neither the fact that the vendor at one time could not have made a title, nor that his title was once destroyed by the recovery in ejectment, will destroy the parol title of the vendee.</p> <p>Held, further, That the failure to set up his parol title by way of defence, did not estop him or those claiming under him from asserting it.</p>

<p>When a judgment is obtained against a person who has a title to land, which is afterward declared void by the Supreme Court, the purchaser of his interest at sheriff’s sale has no title and cannot recover.</p> <p>When a person who has an equitable title to land is made a party to an action of ejectment by his vendor, and fails to set up his equitable right, he and those claiming under him are forever debarred from recovering under it; it is net merely evidence from which the jury might presume that he had abandoned it. The fact that the vendee afterwards leased the property from the vendor will not destroy the former’s title, when he was assured by a person in the latter’s presence that it would not have that effect, and he (the vendor) assented to it.</p> <p>Wengert v. Maulfare et al., ante, 484, partly overruled.</p>

<p>When persons make a written contract for the performance of a certain piece of work, and extra work is afterwards done with the verbal assent of the parties, the contractor cannot recover for it in an action of covenant upon his article of agreement; and the recovery in such suit for the work originally contracted for will not debar him from bringing an action of assumpsit for the extra work. This is his proper remedy, and he is not obliged to sue in case for the whole work.</p> <p>Logan v. Caffrey, 6 Casey, 196, distinguished.</p>

<p>When materialmen charged the articles furnished against both the contractor and the house, they can file a mechanic’s lien against the latter. It is a question of fact for the jury whether the materials were furnished upon the credit of the building or the contractor. Ho presumption can be drawn from the fact that the lien was only filed fourteen days before the six montlu within which it must be filed had expired.</p>

<p>When a judgment was given by a party in order to defraud his creditors, and further credit was given by one of them, but not on the faith of the property so fraudulently incumbered, in action for damages the measure would be the amount due the plaintiff before the judgment was entered.</p> <p>In order to recover damages in an action on the case for conspiracy, a criminal intent must be proved to exist in the minds of both parties; evidence that would be sufficient on a motion to open the judgment will not be enough; but the fraudulent purpose need not be proved beyond a reasonable doubt, as in criminal cases.</p>

<p>When a testator in his Trill directs that the portion of his estate coming to one of his children shall not be paid over to him, but shall be held by trustees for his use and support, any balance of this fund in the hands of such trustees or their executors must be paid to the personal representatives of the cestui que trust after his death.</p>

<p>A lease for more than three years made by an agent -without any authority in writing, confers no more than an estate at will on the lessee. Where a tenant at will was only permitted to mine ore within certain limits, he has no right to take any outside of them.</p> <p>Where one of several tenants in common destroys the works of a tenant of one of the others, under the belief that he is a mere trespasser, the former is only liable for the injury actually done; it is not a case for vindictive damages.</p> <p>Coleman v. Blewett (4 Wright, 45) referred to.</p>

<p>The removal of machinery from a mill in order to give a preference to junior over senior judgment creditors is a fraud upon the latter, and will not turn the property from real into personal. The proper remedy of the older lien creditors is by ruling the proceeds of the sale into court, not by an injunction to restrain the sale.</p> <p>In Pennsylvania, judgment creditors have such an interest in the property of their debtors as will entitle them to demand an injunction from a court of equity to prevent waste.</p> <p>When an engine has been removed from its place in order to defraud creditors, but not taken out of the mill, the act is not so far consummated as to prevent a court of equity from granting an injunction to restrain its removal.</p>

<p>A record of another State of a judgment for costs is within the rule of court requiring an affidavit of defence. The party in such a suit is entitled to recover these costs, even though they are actually due to the officers of the court and the arbitrator. The fact that the charges are very high, is no defence.</p>

<p>A soldier is only exempted from the service of civil process under tlie act of 18th. April, 1861, from the time lie is actually sworn into tlie service of tlie State of Pennsylvania or the United States, not from the time he goes to be sworn in.</p>

<p>A person who agreed to serve as a substitute for another in the army of the United States, and received a note from him as part of the consideration for so doing, but only served a portion of this time, can recover a proportionate part of this note. •</p>

<p>Where one of two joint owners of a judgment assigned his interest in it, and at the same time received back his own promissory note, this is not a matter which can be inquired into by an auditor appointed to distribute the money arising from a sheriff’s sale. An issue must be directed to inquire as to the validity of the judgment.</p>

<p>The words “ on store,” in a receipt for grain delivered at a warehouse, ordinarily means that the grain is sold to a miller or warehouseman, and that the market price is to be demanded at snch time as suits the person leaving the grain; but the actual intention of the parties may be shown by parol.</p>

<p>In an action for a divorce, when the respondent proposes to defend by proving adultery on the part of the libellant, he must give a full and complete notice of the special matter about to be proved, having been notified in writing so to do, or the evidence will be rejected on the trial. A notice that merely states the acts to have taken place at certain places, naming them, between certain undefined periods, is not sufficient.</p> <p>The fact that this evidence was not known to the respondent until the Saturday before the -Monday on which the court met is no excuse. This is not after-discovered evidence, upon account of which the court will grant a new trial.</p>

<p>When the wife of one of the jurors was a first cousin of the wife of one of the parties, that is a good reason for the challenge of such juror or for the granting of a new trial, if the relationship was not discovered until after the cause had been tried.</p>

<p>It was agreed between plaintiff and defendant that an outstanding draft by the former on the latter, if paid, should be allowed as a credit upon an award of arbitrators. The draft was paid, but the plaintiff refused to allow the credit. Hdd, that the court had no power over the award, and could not allow the set-off.</p>

<p>Tlie prosecutor in a 'criminal case is not liable for the costs of the commonwealth’s witnesses, and a promise to pay them is void for want of consideration.</p>

<p>School directors have no authority to levy a tax for the purchase of school-books to be used in the public schools of the district.</p>

<p>An injunction will not be granted to restrain a railroad company from the use of land taken by it some fifteen years before the filing of the bill, and used continuously afterward, even though the land belonged to a feme covert, ■the company had neither paid for it nor tendered a bond to secure the payment of the damages.</p> <p>Although under such circumstances, a continued use of the land may be a nuisance, yet there has been too great laches on the part of the plaintiff, nor does her coverture remove the estoppel.</p> <p>The plaintiff has ar. adequate remedy at law by ej eetment, and in such case an injunction will not be allowed.</p>

<p>A guarantee must oe accepted and acted on, and notice of such acceptance must be given to the guarantor in order to bind him, unless the acts of guaranteeing and acceptance are simultaneous. Notice of the amount furnished and the sum claimed must also be given to the guarantor in order to bind him.</p>

<p>Where the plaintiff in a suit accepts an appearance without service of a summons, and the attorney appears for the defendant without authority, the court will set aside the judgment as irregular, and the plaintiff is left to his remedy against the attorney.</p> <p>Such a judgment will be opened even when several years have elapsed since its existence was brought to the knowledge of the defendant, and it had been assigned to a party without notice of the defect.</p> <p>Catlin v. Robinson, 2 W. 371, distinguished.</p>

<p>A landlord -who has distrained for part of his rent, -will not be estopped from claiming the residue, not exceeding one year’s rent, from the proceeds of a sheriff’s sale of the tenant’s property, nor will the talcing of a note of a third person, when it was not to be taken in satisfaction of the rent.</p> <p>A constable’s levy made before the execution came into the hands of the sheriff, will be presumed to be regular, until it is shown, that it is not.</p>