Volume 1 — Pennypacker's Pennsylvania Reports

Appeal of Benjamin G. Welch, executor of the estate of William Hancock, deceased, from the decree of the Orphans’ Court of Montour County. William Hancock died December 1st, 1872. In his will he appointed James Cousert his executor, and provided' that in case of the death of Cousert, Benjamin G. Welch should succeed him as executor. Letters testamentary were granted to Cousert, who settled his account and died in 1874. Letters were then issued to Welch March 27th, 1875.

The record showed that Milton Heidelbaugh held a judgment against Arthur Thomas, entered January 30th, 1877, in the Court of Common Pleas of Lancaster County, to January Term, 1877, No. 174, for $625, with interest from April 1st, 1876.

Scire facias sur mechanics’ lien, entered by Gottlieb Sener, J. F. Sener, Henry Sener, A, Sener, doing business as G-. Sener & Sons, against Adolph N. Basch, contractor, and Charles Morton, Moses Maxwell, Eobert Able, and Johnson Wesley, committee and trustees of St. Stephen’s Tabernacle, No. 5, of the Independent Order of Brothers and Sisters of Love and Charity of Lancaster City.

In the Court below the defendant, John H. Gable, was indicted for forcible entry and detainer, the prosecutors being Jane Ilerron and Charles I). Herron, her husband, Elizabeth B. Jackson and John A. Jackson, her husband, and Charles J. Tower. The title to a certain tract of land in Mt. Carmel township, Northumberland County, was claimed by the prosecutors and by the Northumberland Coal Company, the latter maintaining possession from 1864 until March, 1875.

Trespass de bonis asportatis by Joseph W. Crawford against William L. Ritter. The defendant, a constable, on the 25th of June, 1880, by virtue of an execution issued upon a judgment against Jonathan O. Crawford, levied upon a horse which it was alleged belonged to the plaintiff. Prior to the sale the plaintiff gave written notice to the defendant that he was the owner of the horse. The defendant, being indemnified, sold the animal July 10th, 1880.

Appeal of John Wilson & Son, Russell & Longenecker, the First National Bank of Freeport, and James Harbison, from the decree of the Court of Common Pleas of Bedford County, confirming the report of the auditor appointed to make distribution of the assigned estate of Nathan H. Wright. Nathan H. Wright made an assignment for the benefit of his creditors of all his estate, real and personal, August 27th, 1877.

Appeal of John P. Brock from the decree of the Orphans’ Court of Blair County. Sarah Lukens Keene, a resident of Philadelphia, died May 11th, 1866, having made her last will and testament dated November. 18th, 1843.

Scire facias sur mechanics’ lien, by Daniel E. Q-ohn against Christian Hersliey, owner, and William H. Iiogendobler, contractor. The plaintiff filed a lien, April 7th, 1877, amounting in the aggregate to $1803.77|, against five houses and lots in Columbia, and apportioned to house and lot No. 1 the sum of $529.90. The lien was for bricks furnished between June 9th, 1876, and November 1st, 1876.

Assumpsit by Isaac P. Klopp, executor of the estate of Sarah Ann Zeller, against Jonathan B. Klopp and Sarah Amanda Seibert and her husband, who were permitted to appear and defend the interest of the said Sarah Amanda.

Assumpsit by J. M. Kreiter against Ellen Miller on a promissory note in the following form: “Harrisburg, April 1st, 1871. “ On demand, I promise to pay to J. M. Kreiter thirty-four hundred and thirty-three dollars and six cents without interest, to be paid at my convenience whenever I have funds in hands to pay the same. $3483.06 Ellen Ward Miller.” On it was indorsed “ July 21st, 1871, Cr. by $500.50, Mrs. Burks’ note.” U pon the trial of the case, it appeared that the note…

Mrs. Elizabeth Smith died on the 17th of May, 1878,'hav-ing previously made a will, in which she directed all of her “just debts” to be paid by her executor.

Action of assumpsit originally brought before a justice March 24th, 1878, by A. S. Lovett against L. B. Wood, on a contract made May 29th, 1877, “ for a quantity of shingles amounting to $279.10, with interest to November 15th, 1877, amounting to $299.92.” Judgment was entered for plaintiff, and an appeal was taken to the Court of Common Pleas, April 29th, 1878.

Error, to the Court of Common Pleas of Adams County. Action of assumpsit by George I. Schriver against Elijah Eckenrode. Plaintiff and defendant, on the 7th of October, 1872, bargained for the farm of the defendant. The farm was advertised as 140 acres, more or less, and plaintiff had looked over it. In the course of the conversation defendant said it contained 144 acres, and he would “gallantee” it.

Ejectment by Simon P. Kase, Michael C. Kreitzer, and Mary, his wife, John W. Phleeger, and Kebecca, his wife, Luther K. Stine, and Matilda, his wife, John Sechler, and Mary, his wife, Addison Bower, George William Bower, and Mary Sechler, hy their guardian, Dr. Henry J. Bower, and W. Gibson Bower, plaintiffs, against Jesse A. Losee, defendant. The action was originally brought in Columbia County,, but was removed, under the act of March 30th, 1875, to Cumberland County.

B Kaufman trustee to sell the real estate of Frederick Pyle, deceased.

Assumpsit by W. T. Kohler against A. Earwell & Co., for compensation for cutting timber under two articles of agreement. 'The plaintiff and defendant entered into an agreement February 21st, 1877, as follows: “ W. T. Kohler agrees to clear off twenty rods in width from the Caldwell's run, or from Mrs. Annie Caldwell’s back line of her farm to the back line on the Swayne tract, — that is, the locust posts that would be salable, and for each post to receive twelve cents for…

Appeal of tbe National Gas Company of Philadelphia from the decree of the Court of Common Pleas of Dauphin County, distributing moneys arising from the sheriff’s sale of the real estate, personal estate, and corporate franchises of the Citizens’ Gas and Gaseous Fuel Company of Harrisburg. The Citizens’ Gas and Gaseous Fuel Company was incorporated December 21st, 1875, for the purpose of supplying the city of Harrisburg with gas and gaseous fuel.

Ejectment by George McMullen against Thomas II. Stone and Jacob Wall. Case stated between the parties for the opinion of the Court of Common Pleas in the nature of a special verdict with leave to either party to sue out a writ of error.

<p>Appear of Philip Miller, executor of the last will and testament of Eve Achey, deceased; J. A. Beeber, George Babb, E. B. Campbell, Thomas Dougherty, Jacob P. Einley, First National Bank of Williamsport, Gottlieb Fulmer, John Gibson, Robert R. Gibson, William H. Gibson, J. Walker Hays, for the firm of Hays & Phillips, Frederick II. Keller, Frederick Mankey, D. R. Mahafley, Philip Miller, Jacob L. Mussina, Joseph W. Mussina, John F. Nice, John W. Richardson, Charles A. Rubright, Aaron G. Shifiler, George Slate, William II. Sloan, B. H. Taylor, B. S. Bentley, assignee of II. E. Taylor, Garrett Tinsman, Daniel Updegraff, William Weaver, William R. Young, Frederick Zimmerman, Mary II. Toner, John E. Jones, Samuel Jones, and Henry ITlman, from the decree of the Court of Common Pleas of Lycoming County, decreeing that certain stockholders, designated as “ cash stockholders,” of the Williamsport Fire Insurance Company, an insolvent corporation, are first liable, upon their subscriptions, to the extent of unpaid instalments due upon their stock, for the payment of the debts and liabilities of the company, before certain other stockholders, designated as “ note stockholders,” are liable for the unpaid subscriptions upon their note stock.</p> <p>The Williamsport Fire Insurance Company was incorporated with a capital of $100,000, with the privilege of increasing it to $300,000, by an act of Assembly, approved March 12th, 1869, and, by the terms of the said act, was to be organized and managed, according to the provisions of the act, to provide for the incorporation of insurance companies, approved April 2d, 1856. The book for subscription to stock was opened April 22d, 1869, closed June 11th, 1869, and letters patent were issued to the corporation June 12th, 1869. Twelve directors were elected June 28th, 1869. All of the two thousand shares of stock were originally subscribed for, but some of the subscriptions being upon condition, were, after notice, forfeited by the board of directors. Hpon the 8th of January, 1870, there were thirteen hundred and six shares of stock, upon which the first and second instalments, amounting to $25 per share, had been paid, called “ cash stock,” and six hundred and ninety-four shares which had been finally forfeited. At a meeting of the board of directors, January 10th, 1870, the secretary stated that an insurance commissioner had been appointed, who might at any time call for a statement that would be detrimental to the company in consequence of the non-payment of so many subscriptions, that the company was prosperous and making money, that a large number of risks and policies had been taken, and that unless something was at once done to meet the emergency the company might be compelled to wind up-disastrously. He proposed, therefore, that the directors, should subscribe for the forfeited stock so as to make up the deficiency, and give their notes for it. This was objected. to by the directors present on the ground that they had all the stock they wanted. The secretary replied, and was supported by the vice-president therein, that this was merely a temporary arrangement for the purpose of carrying the company over the emergency, when the notes would be surrendered to the makers; that he thought there would be no difficulty in the meantime in placing the whole amount of the stock so subscribed, and that in any event they would never be called on to pay these notes, as they were merely given as a loan for the benefit of the whole company. At a later meeting it was agreed that the stock should be subscribed for as proposed and the notes given, and that these notes should not be used, but placed in the hands of the president, to be deposited by him in the West Branch Bank for safe •keeping. The following subscription paper was executed:</p> <p>“Subscribed to fill deficiency, “ Gottfried Hess, White, Lentz & White, . C. E. Gibson, John B. Hall, Benjamin S. Bentley, Charles Hebard, James H. Perkins, . John White, .... Benjamin W. Thompson, Holden, Lentz & Sallade, John B. Beck, M. Eder, .... Ayres & Lundy, A. Updegraff, Philip Miller, “ Jandaby 1st, 1870. per resolution of the board: . 20 shares, §1000 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 26 “ 1300 . 26 “ 1300 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 20 “ 1000.”</p> <p>This made a total of six hundred and sixty-four shares subscribed for out of the six hundred and ninety-four forfeited shares.</p> <p>At the same meeting, “ on motion, it was resolved that the notes in the hands of the treasurer, taken on account of ■stock subscriptions, be given into the custody of John White, president, who shall make a special deposit of them in the West Branch Bank, subject only to the order of the board of directors.”</p> <p>Notes amounting in all to $16,100, were given in the following form, mutatis mutandis:</p> <p>[stamp.] “Williamsport, Pa., January 1st, 1870.</p> <p>“ On demand, I promise to pay to the Williamsport Eire Insurance Company $1800, for value received.</p> <p>“ John B. Hall.”</p> <p>These subscribers, with some changes caused by transfers, constituted what are designated as the “ note stockholders.” A statement was then prepared by the secretary and treasurer, and published in a daily paper of Williamsport, showing the liabilities and assets of the company, and including among the assets “bills receivable, being loans on stocks collateral, $16,900,” which item was partly made up of the said notes. On the 2d of July, 1870, the board of directors declared a semi-annual dividend upon the whole amount of the capital stock of 7 per cent., to be credited or paid in stock to the stockholders; provided, that in all cases where the company held the obligations of stockholders, interest upon said obligations at the rate of 6 per cent, per annum be deducted from the dividend going to such stockholders.</p> <p>At a meeting of the board of directors, May 3d, 1873, it was resolved:</p> <p>“ That within ten days the makers of the notes given for stock, and now in the hands of the president of the company, be called upon to pay up said notes, with interest from their date, or at their option to return to the company the certificates of stock issued to them for said notes, with their indorsement of transfer to the company; then their said notes shall be cancelled and returned to them by the treasurer of the company.”</p> <p>On motion it was ordered that the notes given for stock be withdrawn from the West Branch Bank, and placed in the hands of the treasurer for compliance with the above action of the board.</p> <p>In pursuance of this resolution the notes referred to were withdrawn from the bank and placed in the hands of the treasurer, by whom they were cancelled and returned to the makers between May 3d and June 10th, 1873, on the transfer by them to the company of the certificates of stock supposed to have been issued to them for the notes. It appeared that none of the certificates had actually been taken by the makers of the notes so returned.</p> <p>The report of the secretary at the meeting of August 2d, 1873, showed an impairment of the capital stock to the extent of over $22 per share by reason of recent severe losses. On the 30th of August, of the same year, it was determined to write no more policies and assume no more risks. Soon after creditors brought suits against the company, and recovered judgments, and on tie 18th of March, 1878, the Court decreed a dissolution of the corporation and a distribution of its effects, and the same day appointed a receiver. At this time there were assets remaining amounting to $1877.40, and unpaid judgments and bills amounting to $9012.68.</p> <p>The receiver filed a bill against both classes of stockholders, asking the Court to make a decree specifying whether the cash stockholders were alone liable for such proportion of the balance of the instalments due upon the stock held by them, as might be necessary to pay off the debts and liabilities of the company, or whether the note stockholders were first liable for $25 per share upon all note stock held by</p> <p>them, and asking further that an assessment be decreed.</p> <p>Answers were filed and a master appointed.</p> <p>The master found the facts to be as above set forth, and that the cash stockholders are first liable upon their subscriptions to the extent of the unpaid instalments due upon their stock for the payment of the debts and liabilities of the company, including the costs and expenses in the case.</p> <p>Counsel for certain of the cash stockholders filed exceptions, inter alia-, as to the finding of the master that the cash stockholders were primarily liable in this case to the extent of the unpaid subscriptions.</p> <p>The Court below, Cummin, P. J., dismissed the exceptions, confirmed the report of the master, and decreed:</p> <p>That the defendants designated in the bill of the plaintiff cash stockholders, were first liable upon their subscriptions to the extent of the unpaid instalments due upon their stock for the payment of the debts and liabilities of the company, including the costs and expenses incurred, together with such further sum as might be necessary to compensate the receiver and his counsel and the master for their services, and in case the unpaid instalments due by the said cash stockholders, or the proportion thereof that the receiver might be able to collect, should prove insufficient to pay the debts and liabilities, with the costs, expenses, and compensation, that then, and in that event, the defendants, designated in said bill note stockholders, were liable to the extent of their unpaid subscriptions upon their note stock for the payment of the balance of the said debts and liabilities, costs, expenses, and compensation then remaining unpaid.</p> <p>And it was further ordered, adjudged and decreed that an assessment of 18 per cent, upon the par value of the stock held by them, to wit, the sum of $9 per share, be levied on each and every one of the said cash stockholders, defendants, •except as therein named.</p> <p>Certain of the cash stockholders appealed from this decree, assigning as error, inter alia, the refusal of the Court below to sustain the exceptions to the report .of the master, and the making of the above order.</p> <p>Samuel Linn, J. A. Beeber, F. P. Guise and H. G. McCormick, for the appellants.</p> <p>The learned master and the Court below were undoubtedly right in characterizing the conduct of those of the defendants denominated note stockholders as “ a fraud upon the public,” and that “they are clearly estopped'as to creditors from denying their liability on their subscriptions.” If estopped as creditors, we fail to see upon what principle they are relieved from liability in a proceeding in equity instituted by the receiver as the representative of the creditors, and where the decree prayed for is exclusively for the benefit of the creditors.</p> <p>If some of the stockholders have paid for their stock, and others have secured the amount of their stock by stock notes, those who have paid have a right to insist that the receiver shall collect the unpaid stock notes, or so much thereof as is necessary to equalize the losses of all the stockholders ratably : 3 Edw. Ch., 215; Nathan v. Whitlock, 9 Paige, 152 ; Bedford Railway Company v. Bowser, 12 Wr., 29 ; Mann v. Pentz, 2 Sandford Ch., 286; Turnpike Company v. Mc-Conaby, 16 S. & R., 140.</p> <p>The allegations of the note stockholders were that they only pretended to subscribe, when they wrote their contract of subscription for the stock absolute on its face, at the request of the secretary, to help the company through an emergency. A party sued for a subscription cannot set up that it was feigned and fraudulent: Graff v. Railroad Company, 7 Casey, 489 ; Caley v. Railroad Company, 80 P. F. Smith, 368 ; Railroad Company v. Bailey, 24 Vermont, 465; Miller v. Railroad Company, 6 Norris, 95; Robinson v. Railroad Company, 8 Casey, 325.</p> <p>Nor is it a.ny defence to prove that the subscription was made at the request of the president of the company with the understanding that it was to be cancelled: Gustar v. Gas Company, 13 P. F. Smith, 381; Railroad Company v. Eastman, 34 N. TL, 124; Nippenose Manufacturing Company v. Stadon, 18 P. F. Smith, 259 ; Mann v. Cooke, 20 Conn., 178.</p> <p>The note stockholders having held out to the world, creditors, and other stockholders, that their subscriptions were bona fide, are now estopped from denying their liability : 1 Greenleaf, sec. 207; Graff v. Railroad Company, 7 Casey, 497; Bavington v. Railroad Company, 10 Casey, 358; Smith’s Leading Cases, vol. 2, pp. 705, etc.</p>

Appeal of Levi Conser from the decree of the Court of Common Pleas of Clinton County. On the 24th of May, 1875, a judgment was entered upon a single bill for $1000 against A. B. Conser in favor of D. E. Heckman. On the 30th of June, 1879, Artman, Dillinger & Co., and Smith & Seltzer, presented petitions for a rule upon Levi Conser, to show cause why the petitioners should not be subrogated to the rights of I). E. Heckman in the above judgment.

<p>Error to the Court of Common Pleas of Northumberland County.</p> <p>Assumpsit by George Frick, superintendent; A. H. Stickler, Joseph Price, and John Philips, executive committee; and A. O. Frick, W. II. Snyder, D. Hollinger, Samuel Hoeflich, J. S. Lesher, S. B. Bhinehart, L. W. Wingert, Daniel Hoover, A. H. Strickler, Joseph Price, John Philips, and Daniel Tuttle, members of a company trading and doing business under the firm name of Frick & Co., against Isaac Albert and F. A. Lahr, doing business under the name of Albert & Latir, to recover the price of a steam-engine, etc., sold and delivered. Plea non-assumpsit.</p> <p>The defendants in 1874 owned a sáw-mill run by steam-power. On the 27th of March of that year, plaintiffs and defendants entered into a written agreement, by the terms of winch the former agreed as follows :</p> <p>“We hereby agree to make for you one return tubular boiler, — sixty-horse boiler, — size as follows: 54" diameter, 16 feet long; dome 30" diameter, 30" high, with eighty W tubes; iron in shell ; heads T7g". All best iron and all long seams double riveted; also smoke chamber and door and smoke pipe connections from boiler to smoke-stack; cast-iron front and grates, safety valves, gauge-cocks, steam-gauge, and glass water-gauge, check valve and blow-off cock, wall bolts for front, all complete ready for setting up, and guarantee all best work and material.</p> <p>“ Also one second-hand 14" x 20" upright engine all complete, in first-rate order, with Hunton governor, and one new pump -with heater combined as per photo. Also all piping between engine and boiler and pumps and boiler, and exhaust pipe, all wall bolts, pump and governor belts, all fixtures necessary to complete the job, except masonry, and deliver all the above on cars at Greencastle. We to furnish skilled man to put up the work, you to board him free. Also one set of ratchet head-blocks to fit your mill. All as above described for the sum of twenty-one hundred dollars, and your old engine and boiler with all the fixtures, and delivered on cars at your expense. We guarantee the engine and boiler all to perform satisfactorily, and drive the machinery without strain to engine or boiler, — to be forty-horse power capacity. The boiler to be ready for shipping in four weeks from acceptance of this contract. The engine to be shipped soon as foundation is ready.</p> <p>“ Terms as follows: Five hundred dollars on signing this contract ($500). Five hundred dollars when work is up and pei’forms as specified. The balance in two equal payments at three and six months.”</p> <p>Upon the trial the following facts appeared: The five hundred dollars were paid and the engine was delivered to the defendants, and started at sawing on the 25th of May, 1874. On the 29th of that month defendants wrote to the plaintiffs that the head blocks were at hand, but that they could not use them; that the figuring was wrong and the levers too short \ that the engine did not work satisfactorily yet, had too little power, and did not run the saw satisfactorily with seventy pounds of steam.</p> <p>They returned the head-blocks to the plaintiffs and no others were supplied. These blocks were worth between eighty and a hundred dollars. There was considerable conflict of testimony as to whether or not the engine was of forty-horse power. Plaintiffs’ superintendent sent a postal card to the defendants, June 4th, 1874, saying they would send a man to make the engine and machinery satisfactory. On the 11th of June, 1874, the mill burnt down.</p> <p>A. O. Prick, a witness for the plaintiff, testified that he went to look at the engine, and when he got there the mill was burned down and the engine damaged. He was there a while after that again, probably two months afterward; “ the engine was in operation then when I got there. I don’t know who had put it up. They had set it up and started without notifying us, and the engine was not the same in all its parts as when we had furnished it. They had changed the sliding valve. I done nothing with the engine at that time. Albert said if I touched the engine he would kick me off the mill. I proposed to examine the engine and make it all right at the time, and Albert said if I touched the engine he would kick me off the mill. Then I went home.”</p> <p>Suit was commenced November 28th, 1874.</p> <p>On the 21st of June, 1875, defendants’ attorney wrote to plaintiffs’ attorney “ that the defendants will be ready to stop their mill between the 5th and 10th of July, 1875, to give the plaintiffs the privilege to comply with their contract in the.sale.” In pursuance of the notice plaintiffs sent A. O. Prick and George W. Moore. Frick testified: “ After we tried the engine at the saw-mill, I asked Mr. Albert whether it was satisfactory. No, sir ; he was not satisfied. He had sent to Philadelphia or somewhere, and he had not got the machine as he called it for testing. I told him all right, we would wait until he had that machine there and have it tested. Says I, further than that, if you want it, we’ll get a machine at our own expense and have it tested by a dynometer indicator. No, sir, says he, I won’t have it, we have fooled enough with it. He refused to let me apply that test. In the first place he proposed it, and then when I agreed to it, we would not only allow it to be done, but at our own expense, then he refused to have it done.”</p> <p>Moore testified : “ The proposition was to get an indicator dynometer to test it on purpose, and after his proposition was accepted by us to give it the kind of test he wanted, then he refused and wouldn't have it done.”</p> <p>Isaac Albert, one of the defendants testified: “In the summer of 1875 Frick and Moore came there to test this engine. What was done toward testing it I don’t know. I didn’t see it done. They said they took out a valve. I didn’t see it. I had to work out in the field. The first time he was there to test it, I told him I wouldn’t have anything done to it until I would see my attorney, then on the next day I told him he should stay off the mill. He got, of course, sassy, and I talked a little sassy. I told him I would just lrick him off the mill. ' He left. Didn’t tell him I shouldn’t have any test, I told him I would see my attorneys first. Then I saw Mr. Packer, and he wrote to them and told them they should come on and test the engine. Then they came — him and this Moore.”</p> <p>On cross examination he testified:</p> <p>“ Frick didn’t say to me he would have it tested, and prove to me it was a forty-horse power, to my recollection. If he had said so, he would have had a chance to do it. Why didn’t he do it? I didn’t tell him he shouldn’t do itj because he left. They had all the chance to do it. I didn’t say that to Mr. Frick in the presence of Mr. Moore. I am sure of that, because I gave them every chance there. They had all they asked of me. They had the whole mill there for a week.”</p> <p>The Court below, Elwell, P. J., charged the j ury, inter alia.</p> <p>“ The evidence as to the use of this machine and what it had done before, and what others had done of the same kind, you will take into consideration what it actually did, and any defects in its construction which have been given in evidence. You will take it all into consideration in making up your minds whether it was forty-horse power. If you find it was, and it was put in proper condition to operate, then the plaintiff would be entitled to recover. If you find it was not, and find it was deficient, then another rule would apply, in regard to which I propose to instruct distinctly and definitely. As a general rule, where there is a special contract, which is entire in its character, the plaintiff cannot recover anything without showing the performance of all that was stipulated upon his part to be performed. But there are exceptions to this rule. If a party contract to do work or to furnish machinery or other things to another, acting honestly and with the intention of fulfilling the contract, performs it substantially, but fails in some slight particulars, the person who receives the benefit of what is done cannot hold the property and enjoy the fruits of the labor of ■» the plaintiff without paying a fair compensation according to the contract; receiving, however, credit for what loss or damage he may have sustained by the deviations from the contract. I understand, gentlemen, that that embraces the law applicable to this case. [If you find that these plaintiffs intended to perform their contract, if they did it apparently with the intention of complying with that contract, furnishing everything, although there were defects, although the head-blocks were not such as they should be, if they were sent supposing they were, and the machinery set up and the blocks sent back being part of the machinery, but the balance of the machinery was sot up and used and enjoyed, and is still enjoyed, the fact that a portion of the machinery, the head-blocks, had been returned to the plaintiffs, or that there was a defect in the machinery, would not prevent the plaintiffs from recovering what they ought, under the facts, to recover.] It would not operate in law to prevent their recovering anything, and to give over to the defendants the whole of the property. If the defendants ascertained that the engine was not what was contracted for, they might have rescinded the contract, they might have refused to keep the engine on the ground that it was not according to warranty, and then they might look to the plaintiffs for the damages for not furnishing one according to the contract. But if instead of that they concluded to keep the engine notwithstanding its alleged defects, the plaintiffs may recover, deducting damages for the difference caused by the breach of the warranty. The matters which I have thus charged you upon embrace somewhat my answers to the points which have been presented by the counsel for the respective sides, and in order that I may give their views and my own fully on these subjects, I will read the points and answer them.</p> <p>“ The counsel for the plaintiffs request the Court to charge the jury as follows:</p> <p>“ First. The refusal of the defendants, for whom the engine was furnished and put up, to permit the persons sent by the plaintiffs to examine and test the engine, for the purpose of ascertaining its actual power and exact condition by the only scientific method known, in order to enable the plaintiffs to testify to the character of the work, is evidence to show that the defendants accepted the engine as completed in a good and workmanlike manner, and as filling the contract.</p> <p>[To this point I answer that the refusal of the defendants to permit an examination of the engine is evidence in the case, the effect of which is for the consideration of the jury.</p> <p>“ Upon the question of the acceptance of the engine by the defendants, I say to you that good faith and fair dealing required that they should have permitted all proper tests of the capacity of the engine, and their refusal to have such tests applied is strong evidence that they believed sucn tests would operate against them. But it is not conclusive of the fact that the engine was such as the contract called for, nor conclusive of the fact that they accepted it as a compliance with the contract.”]</p> <p>“The counsel for the defendants request us to charge you :</p> <p>“ First. That the undisputed evidence is that the plaintiffs have not complied with their contract by furnishing all the material and machinery they agreed to furnish in writing, and the contract being an entire one, the plaintiffs cannot recover the contract price until they have shown performance on their part.</p> <p>“ [In answering this point we charge you that the plaintiffs cannot recover the whole contract price if they have not fully performed the contract on their part; but if they performed it substantially, furnished the machinery required for the contract, intending to perform it according to the agreement, they may recover, deducting the difference between the value of the machinery as it actually was, and the value of it as it was agreed to be.]</p> <p>“ Second. If the Court decline to affirm the first point,, then to charge the jury that if they believe from all the evidence in the cause that the plaintiffs did not furnish or offer to furnish the ratchet head-blocks named in their contract after they had been returned as unsatisfactory, that then the plaintiffs cannot recover in this case, the contract being an entire one.</p> <p>“ [I decline to charge you as requested in this point. The. whole contract had relation to the property treated for, which exceeded the sum of $2000. The failure to return the head-blocks after they had been sent back to be repaired or replaced, does not defeat the plaintiffs’ right to recover if the contract was otherwise performed, though defectively ; such failure to return the head-blocks does not prevent the. recovery of the property which the plaintiffs did receive and retain. If the head-blocks were not returned, as a matter of course they came into consideration in the matter of what shall be deducted for damages if not complying with the contract.”]</p> <p>Counsel for defendants excepted to the charge.</p> <p>November 21st, 1879, verdict for the plaintiffs for $1800, upon which judgment was entered.</p> <p>The defendants took a writ of error, assigning for error the portion of the above charge contained within brackets.</p>

Assumpsit by John Good, executor of George Good, deceased, against Thomas L. Harinton and Joseph Calvert, upon a promissory note in the following form: “ Williamsport, December 4th, 1872. “ Twelve months after date we or either of us promise to pay George Good or order $1100 without defalcation. “T. L. Harinton, “ Joseph Calvert.” On the 13th of May, 1879, after a previous trial, aud the granting of a new trial, the defendant Harinton confessed judgment.

John Rohn against Durell Kryder and Catharine Rohn. On the 8thof April, 1880, John Rohn presented a petition' setting forth that Ms daughter, Laura M. Rohn, aged three years and six months, was restrained of her liberty by Durell Kryder and Catharine Rohn; that she was not detained for any criminal or supposed criminal matter, and praying for a writ of habeas corpus. The writ was issued the same day.

Amicable action of assumpsit by C. F. Billings, P. S. S. McNeil and Abby B. McNeil, in right of the said Abby B. McNeil against Sarah M. Billings, entered October 26th, 1880, with same effect as if a summons had been issued and returned served. The parties waived the right of trial by jury and submitted the decision of the issue joined to the Court.

<p>1. Where the consideration of a promissory note was the right to nse and vend- - a patented invention, and the note had not on its face the words, “ given for a patent-right,” required by the act of April 12th, 1872, and the indorsee took if knowing that it was given for a patented invention, he is not a bona fide holder,, and the note in his hands is subject to any defences that exist against the payee.</p> <p>2. Semble that upon the principle that a court of justice will not lend its aid to any one whose claim originated in the commission of a criminal act to which he was voluntarily a party, the note, in the hands of an indorsee having such, knowledge at the time he bought it, is void.</p> <p>3. It is competent for the maker of the note to introduce testimony bearing, upon both these grounds of defence.</p> <p>4. Hunter v. Hemminger, 37 Leg. In., 412, followed.</p>

Case by Orris Hall against Webb Hprton, Walter Horton, Isaac Horton, Jerry Orary, II. II. Crary, Jacob Sehoellkopf, and George Dixon, to recover damages for interfering with the use of plaintiffi’s saw-mill by causing large quantities of tan-bark and refuse to be cast into the stream above. The summons was issued January 19th, 1877.

<p>1. Where the Court below made a perfectly fair and correct presentment of the case as it stood upon the contract between the parties, .but charged: “ If they (the defendants) in taking that measurement perpetrated a fraud for the purpose of deducting or getting coal without paying for it, he (plaintiff) would not be bound by that, because there is no law that would require you to carry out an agreement which was made with a view to perpetrate a fraud. But the plaintiff must satisfy you that there has been fraud perpetrated in the measurement of this coaland there was no evidence of fraudulent conduct upon the part of the defendants in the case; Held, to be error.</p> <p>2. It was agreed between plaintiff and defendants “ that the charcoal delivered shall be measured as follows: The wagon-bed to be calculated, and the number of bushels of twenty-six hundred and ninety (2690) cubic inches therein ascertained. The wagon to be filled full of, and the heapage put on with fine charcoal on the job; heapage to be with a twenty-bushel box of twenty-six hundred and ninety cubic inches per bushel. The wagon to be gauged upon the furnace bank by the said Lauth, Thomas & Co., or their authorized agent, at the lowest parts of the bed, and the load so gauged shall be the standard load from which to determine all others.” Held, that it would not be competent for the plaintiff to prove fraud in the measurement by proving what amount of coal ought, in the opinion of witnesses, to be produced from a cord of wood such as the plaintiff used when coaled in the manner in which he coaled it.</p> <p>3. Nor can he show that different results would have followed if a different method had been pursued.</p> <p>4. To prove that a teamster, when he asked for a square cut, was met with a smile, is entirely too indefinite and uncertain a method of establishing so grave a charge as fraud in the measurement.</p> <p>Note. — The Court ought not to be compelled to search through a large mass of testimony, in a paper book, for details of evidence to support the allegations of plaintiff in error, but a precise designation of such evidence should be furnished.</p>

<p>1. Whether an assignment of securities by a debtor to a creditor is in payment or as collateral security is a question of intention depending upon the testimony.</p> <p>2. In the absence of evidence tending to show an intention to pay and receive the securities assigned as satisfaction of the debt, in whole or in part, the law presumes that they were assigned only as collateral.</p> <p>3. The duty of establishing that they were assigned in payment rests upon the debtor.</p> <p>4. If he fails to perform this duty the law makes a positive inference that the assignment is only as collateral security, and that inference is substantial evidence upon which the creditor may rely.</p> <p>5. That the assignment is absolute in form is of no consequence on the question of intention.</p> <p>6. Nor is the legal effect of the assignment dependent-upon the relations which may subsist between the parties, whether husband and wife, parent and child, or strangers.</p> <p>7. In an action against a husband by the executor of the wife for money loaned, an assignment of a judgment and mortgage by the husband for the benefit of the wife was proven. The judge charged the jury, “ when an absolute assignment is made by a husband to a wife of a judgment or mortgage there is no presumption of law that it or they are assigned as collateral security, independent of proof that they were so accepted.” He further charged that the Court had no knowledge of evidence that the assignment was as collateral; “ but that the evidence in the case is for the jury, and whether there is such evidence is for the jury to determine.” Meld, that it was error.</p>

<p>1. A judgment -will not be reversed because the Court below failed to give a novel and peculiar instruction when no request to that effect was made.</p> <p>2. The rule established in Huber ». Wilson, 11 Harris, p. 181, that “ it was not error in the Court to omit a distinction which at most could only have affected the amount of damages, and which the party entitled to did not think proper to claim ” is a salutary one.</p>

Jacobs, deceased. George W. Jacobs, of said county, in anticipation of marriage with Georgia E. Brandt, entered into an agreement with her, June 11th, 1879, which provided, inter alia, that he should maintain the three minor children of the said Georgia until eighteen years of age, and “ that in case the said intended marriage shall be consummated, and the said Georgia E. Brandt shall survive him as his widow, then she is to receive out of his personal estate the one-fourth…

Attachment sur judgment in the Court below by E. H. Wilson against B. F. Douglass, James A. McGee, and H. B. Kinport, defendants, and E. A. & W. D.' Irvin, garnishees.

Assumpsit by David J. Hoar & Co., against Lever Elegal. The cause came on for trial May 21st, 1879, and the jury rendered a verdict for the defendant.

Error, to the Court of Common Pleas of Dauphin County. Ejectment, commenced May 17th, 1876, by William Harris against Louis Nowviock, W. Wayne Yogdes, and John Reatty, for one-twelfth of a tract of land in the city of Harrisburg. It was admitted that John Harris, the founder of Harrisburg, who. died in 1791, was the owner of the land in question.

Appeal of Samuel Hall from tbe decree of the Orphans Court of Clinton County, confirming the report of an auditor appointed to distribute the estate of Ezekiel Fleming, deceased. Ezekiel Fleming died January 10th, 1870, having made a. last will, dated December 81st, 1869, under which letters testamentary were granted to N. B. Dorey, the other executor named having renounced.

Trespass by Daniel Crowley, and Eliza, his wife, in the right of the wife, against Samuel H. Irvin, sheriff of the said county, for taking in execution and selling a mare and colt as the property of John McCombe, which were claimed to belong to the plaintiff. The plaintiff, Eliza Crowley, was the only child of John McCombe.

Eeigned issue under the sheriff’s interpleader act by Mrs. N. D. Goe against the Gibbs & Sterrett Manufacturing Company to determine the ownership of certain goods levied upon by the defendant as the property of N. D. Goe, husband of the plaintiff.

Ejectment by Heman Janes against Lewis Emery, Jr., and L). McKelvey, doing business under the firm-name of the Emery Oil Company, to recover possession of a tract of land leased by tbe grantor of the plaintiff' to the defendants, because of alleged forfeiture.

Ejectment by James E. Blair against L. G. Peck, Wesley .Chambers, J. T. Jones, L. F. Freeman, John M. Coburn, and the Bradford Oil Company (Limited), to recover possession of a tract of land in said county, leased by plaintiff to L. G. Peck, one of the defendants, upon the ground of alleged forfeiture.

<p>Error to the Court of Common Pleas of Lancaster County.</p> <p>Case by Mary Kissinger against the city of Lancaster to recover damages for the death of her husband, Henry M. Kissinger, and the father of her child, Harry Kissinger, caused, as alleged, by the negligence of its officers and employes in properly constructing and keeping in repair a certain gutter in the said city.-</p> <p>Plea, not guilty.</p> <p>Upon the trial the following facts appeared:</p> <p>Henry M. Kissinger was a teamster, and on the 22d of July, 1878, the day on which the accident occurred resulting in his death, was engaged in hauling tobacco with a pair of horses and what is known as a platform wagon, — a wagon without sides or hind end gate. On this wagon were nine boxes of tobacco, — in size three by four feet, — five on the bottom and four others on top of these. The lower boxes were not fastened. Old bolts and nails were used on top of the lower boxes to prevent the upper boxes from slipping. The upper boxes were laid on these bolts and nails. Kissinger sat on the front lower box with his feet on the front gate. The portion of the box upon which he sat measured about two feet: He had driven a similar load earlier in the day over the gutter in question with safety.</p> <p>J. A. Sprenger, for the plaintiff, testified:</p> <p>“ I saw this man that fell off the wagoii just as he turned into Cherry Alley from Orange Street. I was in front of him. As the wagon came down into the gutter the jar threw the man off. He slid off right down in between the horses astride of the tongue. He threw out his hands as he fell and tried to catch himself. He lit on his feet and walked along. The horses didn’t run away. He tried to catch the lines. lie caught one side and drew the horses over towards the fence, and when it began to crack the horses got frightened and commenced to run. He could not keep up, and tripped himself, and fell and got under the wagon. I saw the hind part of the wagon go over his body. The horses then ran on, and ran into my yard.”</p> <p>Kissinger died in consequence of the injuries he received.</p> <p>The instructions of the city regulator were that the depth of the gutters should be six inches. The testimony of the witnesses for the defendant as to the depth of the gutter at the intersection of Orange Street and Cherry Alley varied, some saying that it was eight to ten inches deep, others that it was eleven. The testimony of the plaintiff’s witnesses was that it was from fifteen inches to two feet in depth, abrupt in descent, steep, and dangerous. After the accident the street commissioner relaid the gutter, raising it three or four inches, and changed the slope. There was no evidence that at the time of the accident the gutter was out of repair. It was made in 1863 by the street commissioner.</p> <p>John M. Eshelman, a witness for the .plaintiff, was asked, upon cross-examination:</p> <p>“ Have you not a great many times driven over this gutter in the condition it was in July 22d, 1878, with one-horse wagons and with this same two-horse wagon with nine boxes of tobacco, in the manner you have described to the jury, to this same warehouse?”</p> <p>Upon objection by plaintiff, the question was disallowed, and the defendant excepted.</p> <p>The witness was further asked:</p> <p>“Did or did not Mr. Kissinger, many times within the month or six weeks preceding his death, drive over this same gutter, with the same wagonloaded in the manner you have described, to Skiles & Erey’s warehouse, without accident either to the wagon or himself?”</p> <p>Upon objection by plaintiff, the question was disallowed, and defendant excepted.</p> <p>Counsel for defendant asked the Court below to charge the jury, inter alia, upon the following points:</p> <p>2. It is the duty of plaintiff seeking to recover, where the gravamen of the action is the alleged negligence of the defendant, to show a ease clear of contributory negligence on his own part.</p> <p>5. If the jury believe the testimony of J. A. Sprenger, that the deceased was uninjured until after he had crossed the gutter and drawn his horses against the fence, whereby they were frightened and ran away, and thus occasioned the accident, the plaintiff cannot recover.</p> <p>6. The jury must be satisfied that the proximate cause of the injury to the deceased was a defective or negligently constructed gutter, otherwise the plaintiff" cannot recover.</p> <p>7. If the jury believe the uncontradicted testimony that the deceased was fully aware of the condition of the gutter, by reason of having driven over the same frequently, he was bound to exercise such care and caution as its alleged dangerous character should have suggested to him.</p> <p>8. The uncontradicted testimony showing that if there was any defect in the gutter it was a defective grading of the same, for which a municipality is not responsible in damages to a citizen for an injury sustained by reason thereof, the plaintiff" cannot recover.</p> <p>The Court below, Livingston, J., answered these points as follows:</p> <p>2. The plaintiff seeking to recover here must show negligence on the part of the defendant, — must show, to the satisfaction of the jury, that the alley or gutter was in a dangerous and unsafe condition for ordinary use and travel, which -would be negligence; but the law presumes the injured party exercised ordinary care in crossing the gutter, and, therefore, the burden of proving carelessness or contributory negligence on his part rests on the defendant charging it, unless the proof presented by plaintiff" in itself discloses and shows such negligence.</p> <p>5 and 6. While the sixth point in ordinary cases would be affirmed, as the fifth and sixth were discussed as one, we will answer them together. And we refuse to affirm them as stated, and say: If the jury believe, from the evidence, that Ilenry Kissinger was not guilty of carelessness or contributory negligence on his part, before he was thrown from his seat in the manner stated down in between his horses, and also find, from the evidence, that the injury would not have occurred but for a defect in the construction or bad condition of the gutter, the defendant would he liable, although the proximate cause may have been a momentary loss of control, or inability to control his horses after being thrown off, not attributable to the fault of any one, while making an effort to get i’id of the danger caused by his being thrown off his wagon in crossing the gutter.</p> <p>7. The city is bound to have its streets and gutters in such order and condition as to be safe for public travel and passage with ordinary care. And if the jury believe, from the evidence, that this street, alley, and gutter were in such condition as to make them unsafe for such travel, then there was negligence on the part of the city, and if the deceased in crossing there used such care and caution as men engaged in such occupation as he was engaged in usually employ in crossing such gutters, plaintiff would be entitled to recover.</p> <p>8. This point we refuse to affirm. It is not the law. The law requires the city to have her streets and gutters to be so graded and made as to be safe for public travel with ordinary care. It will not do for her to say the streets and gutters are improperly and negligently made, are in bad condition, but she is not liable for injury because the fault is in defective grading, and if the injured party had used very great and extraordinary care he might have avoided the accident. The city has no right to have her streets, alleys, and gutters in such unsafe and dangerous condition, either from defective grading, or defective construction, or want of repair, or safety from any other act of hers, as to require very great or extraordinary care and caution on the part of the traveller. If it does so grade, construct, or keep them, and injury or damage are caused thereby, it is liable.</p> <p>Counsel for defendant excepted to these answers.</p> <p>September 28th, 1880, verdict for the plaintiff for $1600, upon which judgment was entered.</p> <p>Defendant then took out a writ of error, assigning, inter alia, as its first, third, and fourth and fifth grounds of error, the answers to its second, fifth and sixth, seventh and eighth points respectively, and as its eighth and ninth grounds of error, the rejection of the evidence as above set forth.</p>

Appeal of W. C. and J. Wood from the decree of the Court of Common Pleas of Tioga County, discharging a rule to show cause why a judgment entered upon a warrant of attorney should not be opened, and the defendant let in to a defence. Judgment was entered June 17th, 1880, by E. T. Billings, to the use of F. Gf. Hall, against W. C. and J. Wood for $747.68 by virtue of a power contained in a promissory note dated October 2d, 1879.

Appeal of John G-. Bridaham and Daniel Cessna, attaching creditor of the said John G. Bridaham, from the decree of the Orphans’ Court of Bedford County, confirming the report of an auditor appointed to distribute the balance in the hands of the executors of John Bridaham, deceased. John Bridaham died in June, 1865, leaving a last will and testament, which was dated May 3d, 1865, and proved June 24th, 1865.

Covenant, July 9th, 1878,by Conrad Hartman against John Shettler and John-C. Reid.

<p>A sale of lands by a debtor is not fraudulent and void as to a creditor having a judgment which is a lien, and may be continued and enforced, though the sale be made for an inadequate consideration and the object expressed at the time be to get the land from under this judgment.</p>

Appeal of George O. Moody, William McNaughton,E.&R. Mead, Jr., & Co., and M. J. Heywang, trustee for creditors of Kingsland & Reynolds, from the decree of the Court of Common Pleas of Crawford County, distributing the proceeds of the sheriff’s sale of the property of the firm of Kingsland & Reynolds.

Error, to the Court of Common Pleas of Crawford County. Ejeetmeut, by Silas Wheeler against O. H. Perry Shreve and Ezra Cooper, to obtain possession of sixty-four acres of laud in Bloomfield township in the said county._ Upon the trial in the Court below the following facts appeared : On the 8th of October, 1833, Israel Shreve and Elizabeth, his wife, conveyed the land in dispute to Perry Shreve, the defendant, for $15, and upon the further consideration “ that Barzilla…

Assumpsit by B. C. Steele against the Allegheny Valley Railroad Company to recover damages for the alleged refusal of the defendant company to receive certain cross-ties under a contract between the parties. Plaintiff and defendant entered into the following agreement : “Pittsburgh, April 8th, 1875. “ Memorandum of agreement between B. C. Steele and Allegheny Valley Railroad Company.

2, of Allegheny County. vhssumpsit by Thomas H. Cahoon, George H. Hutchinson, and James H. Mahan, partners as Thomas H. Cahoon & Co , against R. P. Burgan, John H. Burgan, and Elizabeth Burgan, late partners as Burgan Bros., to recover the price of lumber and building materials sold and delivered to the firm of Burgan Bros. On the trial in the Court below, before Ewing, J., there was no dispute as to the sale or price of the materials, and the sole question was as to the…

Appeal of the Wheeling, Pittsburgh and Baltimore Railroad Company from the decree of the Court of Common Pleas of Washington County, refusing to stay a writ of habere facias possessionem. Ejectment by J. J. Cleland, February 27th, 1878, against the above-named company. December 30th, 1878, the plaintiff and defendant agreed upon the following case stated: The plaintiff' was, and is now, the owner of a tract of land situated in Buffalo township, Washington.

Sur rule to show cause why a rule to show cause why a judgment should not be marked “ satisfied ” as to E. II. Adams, one of the defendants, should not be reinstated.

<p>1. The plaintiff, Niles, being in debt and needing security, signed a contract with defendants, transferring to them certain leases, and setting forth: “ The above sale, transfer, sale, or, delivery, is made by first party to said second parties for the purpose of securing them against loss or damage from their guaranteeing or securing the said Niles, or securing William P. Porter from loss by bailing said Niles. In consideration of the above the said second parties agree to secure William P. Porter against loss from his becoming bail or security to said Niles to the amount of three thousand five hundred dollars (§3500).” Porter did not sign the contract. At the same time plaintiff executed a mortgage to defendants reciting the contract. Porter then signed notes for the plaintiff to that amount, which he was subsequently compelled to pay, and plaintiff assigned to him all plaintiff’s interest in the contract. Held, in an action by plaintiff to the use of Porter, that neither want of definiteness in the description of the interests in the leases, nor the fact that the interests transferred to the defendants subsequently proved to be of but little value, would exempt defendants from the obligation to indemnify Porter, as expressed in the contract.</p> <p>2. The fact that Porter was not a party to the writing ought not to avail defendants.</p> <p>3. It was not error to charge that the case is analogous to that of an agent who, either by prior parol authority or by subsequent parol notification, enters into a contract in his own name, under his own seal, for the benefit of his principal, in which the action would be maintained in the name of the agent for the benefit of the principal, and the defendants, if they knew the contract was for the benefit of the principal, could take no other defence than such as would be available against such principal.</p> <p>4. If, on the faith of the agreement executed by the defendants, Porter advanced the money, they could not as against him set up that the consideration was worthless or had not been received.</p> <p>5. Any doubt as to the competency of a witness permitted to testify is cured by uncontradicted evidence of the facts to which he testified subsequently received by admission.</p>

Debt by David II. Paul against Daniel Garrison, commenced April 21st, 1876, upon an award of #arbitrators for the sum of $612.25, which award was made December 30th, 1875, in favor of the plaintiff' against the defendant. The pleas were payment, payment with leave, etc., and set-' off, with notice of special matter.

Appear of Samuel Plumer and T. M. Jones from the decree of the Orphans’ Court of Allegheny County, sustaining exceptions to the report of an auditor, appointed to ascertain the facts and report the same, and his opinion, in the matter of the petition of Maria McFarland for the payment of arrears of dower.

2, of Allegheny County. Debt by Sidney Fuller against Robert M. Leonard and Mary A. Leonard to recover the penalty in a bond.

Appeal by Samuel MeCamy from the judgment of a justice of the peace, in favor of J. A. Canan for $45.50, in an action brought by the latter against the former to recover back the value of certain articles given in payment for a horse sold and delivered.

Error, to the Court of Common Pleas of Erie County. Proceedings under the act of June 16th, 1836, were commenced by James A. McCullough and M. V. Blare, committee of J. G. Hubbell, before an alderman, against' John Wilson, to recover possession of one hundred and fifty acres of land in Greenfield township, Erie County, which land the plaintiff had purchased at sheriff’s sale.

Scire facias sur municipal claim filed by the city of Oil City against Louis Morris, owner or reputed owner of a lot in the said city, for the construction of a sewer. , The act relative to sewers in the city of Oil City, approved March 11th, 1872, provides, inter alia: “Section 1.

2, of Allegheny County. Scire facias by the City of Allegheny against John N. Straub, sur municipal claim for grading and paving, for the sum of $163 and costs, filed November 24th, 1880, against certain real estate of the defendant.

Appeal of John Guffey and J. J. Hazlett, trading as the Westmoreland Coal Company, from the judgment of a justice for $63, with costs, in favor of J. A. Harding, trading as Harding & Bro. The transcript was filed January 31st, 1881. On the 3d of February, 1881, the plaintiff filed a narr. copy of account and an affidavit of claim.

2, of Allegheny County. a On the 16th of March, 1876, judgment was entered by the Mutual Building and Loan Association of McKeesport against James McMullen, John O. Beil ley, and Margaret McMullen, for $15,000, with costs of suit, and attorney’s commission upon a warrant of attorney to confess judgment in a bond.

2, of Allegheny County. Case in tort by Ella Thomas against the Oakland Hallway Company, to recover damages for alleged negligence of the employes of the defendant, in allowing a truck-car to jump the track, and run into the end of the house of plaintiff. The verdict in the Court below was in favor of the plaintiff, and on it judgment was entered. The defendant took out a writ of error.

Assumpsit by J. E. Holmes, to the use of Peter Coy, against R. H. Williams, upon a promissory note in the following form: “ 5500 Indiana, Pa., February 26th, 1877. Six months after date, I promise to pay to the order of J. E. Holmes, at the First National Bank of Indiana, the sum of five hundred dollars, without defalcation or stay of execution, value received, and with five per cent, attorney’s commission.

1, of Allegheny County. Case by .Victoria A. Seiler against James L. Orr and. W. H. Gerdes for malicious prosecution. On the trial in the Court below before Stowe, P. J., these facts appeared: The husband of the plaintiff' occupied a building of W. H. Gerdes, one of the defendants, as tenant, and carried on the business of selling liquors.

1, of Allegheny County. Assumpsit by James M. Bell, trustee of the Western Savings Bank, against Hugh Lafferty.

1, of Allegheny County. This was a proeeeding by quo warranto to try the title of the defendants to exercise the rights and franchises of a corporation. The Commonwealth filed an information, setting forth the act of incorporation of defendant, dated March 31st 1836, •authorizing the defendant to make a turnpike road between points therein mentioned, and averring, inter alia, as follows : “ 3.

Euwer, administrator of John N. Euwer, deceased, against Anthony Henderson.

Debt by Isaac Brownfield, John Collins, and George B. Hutchinson, executors of Basil Brownfield, against William Beeson, John Snider, Eobert Hogsett, Ayers Nixon, and Thomas B. Schnatterly, for instalments of interest on á bond given for the purchase-money of a tract of land.

Indictment of John Gerbracht by the Commonwealth of Pennsylvania for selling liquor without a license. The facts of the case were as follows: Gerbracht was indicted in the Quarter Sessions of Mercer County, duly tried, convicted, and sentenced.

Appeal by the overseers of the poor of Limestone Township from an order of a magistrate removing a pauper, Mary Ann Hepler, to the said township from Licking Township. From the depositions taken upon the appeal the following facts appeared: Mary Ann Hepler, the pauper, was born in 1846, and was the illegitimate child of Sophia Hepler.. The mother was unmarried and lived with her father, who was a farmer in Limestone Township.

Debt by the Commonwealth, ex rel. Forest County, against Daniel S. Knox, executor of Herman Blum, deceased, Sebastian Blum, Henry Kiser, and Joseph G. Dale, the defendants being the surviving obligors upon the official bond of Frederick Glassner, late treasurer of said county. Upon the trial in the Court below, before Junks, P. J., the following facts appeared.

Certiorari sur appeal from the decree of the Court of Common Pleas of Forest County, discharging a rule to show cause why judgment should not be opened. Judgment was entered to September Term, 1880, No. 16, by William Lawrence, Treasurer, for use of John and Thomas Wilkinson, against the Woodland Oil Co., Limited, upon a surplus bond for $1315.

1, of Allegheny County. Assumpsit by Ambrose A. McCarty against T. H. Baird Patterson, administrator cum testamento annexo, and trustee under the will of Joseph Patterson, deceased, and trustee of Elizabeth II. Haseltiue et al., to i’ecover commissions, as a broker, for alleged services in negotiating a loan of money.

Trespass by S. H. Burdick and Lucy M. Burdick, his wife, in right of the wife, against G. L. Strong, Byron Edmunds, and John Cowicks, to recover damages for a levy upon and sale of certain goods and chattels as the property of the husband of the plaintiff’, which were alleged to belong to the wife.

1, of Allegheny County. ' Ejectment by John Rick against Peter Kuntzler to recover possession of a lot of ground in the city of Pittsburgh, commenced February 28, 1880. June 19-, 1880, T. H. B. Patterson, a creditor of the defendant, who had obtained judgment against him since the commencement of the suit, was permitted to appear of record and defend.

1, of Allegheny County. Appeal of John Scott, Eliza Jane Scott, John Gilfillan and Mary his wife, and Mary Scott, from the report of viewers awarding damages to the appellants for land taken by the Montour Bailroad Company. The award of the viewers gave the plaintiffs $512.50 as damages.

1, of Alleahem County. Action on the case by Zeitinger & Zoppi, partners, etc.,, for use of E. Harrison & Company, against J. W. Porter. The following facts appeared on the trial of the case before Collier, J. 1 The plaintiffs were iron manufacturers in St. Louis. The defendant was their factor in Pittsburgh ; received consignments of iron from them, made advances thereon, and guaranteed payment for goods sold. Prior to December,1874, he charged a commission of 3 per cent.

Certiorari sur appeal from the decree of the Court of Quarter Sessions of Allegheny County, making absolute a rule to show cause why an attachment should not issue against the defendant for non-payment of weekly dues under an order of the Court. The defendant, Robert W. Hemphill, was indicted at March Sessions, 1879, for fornication and bastardy, the prosecutrix being Elizabeth Fleming.

1, of Allegheny County. Assumpsit, by D. Knox Miller, against the school district of McKeesport, to recover for services as an architect in preparing plans and specifications for the erection of a school building.

1, of Allegheny Couniy. Assumpsit, by Henrietta Mears, guardian of Thomas Mears, a lunatic, against the Humboldt Fire Insurance Company of Allegheny, on a policy issued to the said Thomas Mears on his mill and distillery in Steubenville, Ohio, for $1500. Upon the first trial of the ease the jury, under the instructions of the Court, rendered a verdict for the defendant. The judgment thereon was reversed by the Supreme Court, and venire de novo awarded.