Volume 1 — Sadler's Pennsylvania Reports

<p>In equity a master’s findings upon matters of fact, which have been approved by the court, will be set aside on appeal only for plain error.</p> <p>Either partner has implied power to employ counsel to render professional services when needful in the affairs of the firm, and to charge the firm with payment of reasonable counsel fees.</p> <p>Cited in United Zion’s Congregation v. German Evangelical Protestant Church, 5 Kulp, 441, as to review of master’s findings of fact.</p> <p>Note. — The appellate court will not review the findings of fact of a master based on evidence sufficient to submit to a jury. Logue’s Appeal, 104 Pa. 136; Bugbee’s Appeal, 110 Pa. 331, 1 Atl. 273.</p> <p>The affirmance of the lower court is conclusive. Leonard v. Smith, 162 Pa. 284, 29 Atl. 915.</p> <p>But, if the finding is not supported by the evidence, the supreme court will reverse. Worrall’s Appeal, 110 Pa. 349, 1 Atl. 380, 765.</p> <p>And the appellate court may examine the evidence and find a fact which' the referee has failed to pass on. Leonard v. Smith, 162 Pa. 284, 29 Atl. 915. As to power of appellate courts in general, in reviewing evidence, see the following editorial notes containing an exhaustive presentation of the authorities on their respective subjects: Power to reverse conviction for insufficiency of evidence to sustain verdict, note to Armstrong v. State (Fla.) 17 L. R. A. 484; power to interfere with verdict for excessive damages, note-to Burdict v. Missouri P. R. Co. (Mo.) 26 L. R. A. 384; inadequacy of damages as a ground for setting aside verdict, note to Benton v. Collins (N.. C.) 47 L. R. A. 33.</p> <p>One partner may bind the other in the purchase of goods. Merriman v. Liggett, 1 W. N. C. 379. Or give a valid warrant of attorney authorizing-a suit on a contract made by the firm. Clarke v. Slate Valley R. Co. 136. Pa. 408, 10 L. R. A. 23S, 20 Atl. 562. Or agree to the submission of a claim, to the award of arbitrators. Taylor v. Coryell, 12 Serg. & R. 243; Gay v. Waltman, 89 Pa. 453.</p> <p>As to powers of individual member of partnership, and liabilities of firm for his acts, see the following editorial notes presenting in full the authorities on their respective subjects: In regard to partnership real estate, note-to Yorks v. Tozer (Minn.) 28 L. R. A. 86; liability of partnership for torts, committed by individual member, note to Page v. Citizens’ Bkg. Co. (Ga.) 51 L. R. A. 463; liability of partner for libel published without his consent, note to State v. Mason (Or.) 26 L. R. A. 779; criminal and penal liability for act of partner, note to Williams v. Hendricks (Ala.) 41 L. R. A. 650; criminal liability for act of individual member of insolvent banking-partnership in receiving deposit, note to Com. v. Junlcin (Pa.) 31 L. R. A. 125; attachment of individual property of one partner for fraud of another,, note to Jaffray v. Jennings (Mich.) 25 L. R. A. 645.</p>

<p>Appeal from the decree of the Orphans’ Court of Schuylkill County, upon an auditor’s report of distribution.</p> <p>The appeal was taken by Franklin Yeich. The only questions were upon the construction of the will of his father, John Yeich, and what was probably the intent of certain provisions, which are stated in the opinion of the court.</p>

The action was on a bond given by James Bigham as principal obligor, and O. H. Buehler and others, the defendants, as sureties, to Coe & Richmond. The general circumstances under which the bond was given may be gathered from the report of Coe v. Buehler, 110 Pa. 366, 5 Atl. 20.

<p>Error to the Common Pleas of Berks County to review a judgment in summary proceedings for plaintiff.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Appeal from a decree of the Common Pleas of Franklin County.</p> <p>The facts appear in the opinion.</p>

decree of the Orphans’ Court of Philadelphia.. Upon the settlement of the estate of Amelia Schoeninger, Charles Knipschild presented a claim for board and washing-furnished to the decedent. On behalf of the estate a set-off was claimed, on a note given by claimant to decedent; and, to toll the statute of limitations, evidence of an acknowledgment of the debt by claimant was offered. The court rejected the set-off' and allowed the claim; whereupon the administrator appealed..

This was an action of trespass by Garrett, against the defendants’ intestate, the sheriff of Warren county, and after his death prosecuted against his administrators, for seizing and selling a second-hand boiler and engine and belt on an execution in favor ■of M. D. Archibald, against Merrill & Markbart.

The facts are stated in the first four paragraphs of the charge of the court below: Charge. The plaintiffs, trading as Thompson Brothers, sue the defendant, the Manheim Mutual Fire Insurance Company, to recover the amount of a fire policy issued by the defendant in their favor.

<p>Error to tbe Common Pleas of Berks County.</p> <p>Tbe facts are stated in tbe opinion.</p> <p>Tbe sureties of an administrator de bonis non are auswerable for the proceeds of real estate sold by him by virtue of an authority to sell contained in the will of the testator. Hartzell v. Com. 42 Pa, 459.</p> <p>It is impossible by any equitable construction to Stretch the word beyond the letter against a surety who knows the exact extent of the responsibility which he contracted, according to the letter of his obligation, and who could know it by no diligence, provided it were to be understood by any other standard than the letter. Peed v. Com. 11 Serg. & P. 441.</p> <p>If the surety’s engagement relates to a particular office, it •extends only to such things as were included in the office when the engagement was entered into. Wylie v. Gallagher, 46 Pa. 205.</p> <p>The law will not create a liability against sureties which they have not incurred by their consent. Swanson v. Ball, Ilempst. 39.</p> <p>A surety cannot be held liable beyond the terms of his obligation. Com. v. Simonton, 1 Watts, 310.</p> <p>Cases need not be cited to show that sureties cannot be held beyond the fair scope of their engagements, as intended by the parties when undertaken. Dedham Bank v. Chickering, 4 Pick. 340, citing Springfield Bank v. Merrick, 14 Mass. 322.</p> <p>Sureties on an administration bond are not liable for the acts of the administrator confessing judgment and allowing the real •estate of the decedent to be sold under it and the money misappropriated. Peed v. Com. 11 Serg. & P. 441.</p> <p>An administrator with the will annexed may execute a power to sell, in order to bring the land into a course of administration, but not to execute a trust for a collateral purpose. Poss v. Barclay, 18 Pa. 183, 55 Am. Dec. 616.</p> <p>An administrator with the will annexed cannot sell land for convenience of partition. Waters v. Margerum, 60 Pa. 39.</p> <p>Powers given to executors as such virtute officii do not extend to a power of sale collateral to or unconnected with their duties as executors. Evans v. Chew, 11 Pa, 50.</p> <p>There is no power given in this will to the executor to sell for purposes of distribution, as in Lantz v. Boyer, 81 Pa. 325.</p> <p>In Maus v. Mans, 80 Pa. 194, it was decided that the trust, to rent the land did not vest in the administrator c. t. a.</p> <p>In Reed v. Com. 11 Serg. & R. 441, the court says: The legislature, by using the words of the English statute, “seem to have-restrained the security of the bond to the administration of the ‘goods, chattels, and credits of the said deceased, at the time of his death.’ ”</p> <p>The incongruity of such a judgment is but .imaginary. There-is certainly no difficulty in enforcing it, and the tendency of the-law now is to abolish such technicalities. Dingman v. Amsink,, 77 Pa. 114-118.</p> <p>Leonard v. Parker, 72 Pa. 236. A name having been added without notice to the party, it was stricken off subsequently for-that reason. Held to be error, and the name ordered to be reinstated.</p> <p>In 2 Troubat & H. Pr. 384, § 2060, it is said that the party-first suing on an official bond is entitled to the whole penalty, iff his claim be so. much.</p> <p>It is an established principle that the person who first sues, and obtains judgment on an official bond is entitled to take the whole of the penalty, if his demand amounts to so much, in exclusion of every other claimant. Dallas v. Chaloner, 3 Dali.. 501, 1 L. ed. 696.</p> <p>The same doctrine was declared in Hazlehurst v. Dallas, 4-Dall. 106, 1 L. ed. 761; and in Christman v. Com. 17 Serg. fell. 381, it was decided that the person who first sues on an official, bond of a sheriff is entitled to have his judgment first paid.</p> <p>The assets were not marshaled because of the litigation as to the forest improvement lands. Wms. Exrs. 1713, 1716,. 1718, 1719; Witman v. Norton, 6 Binn. 395; Woodward, Ch.J., in Gallagher’s Appeal, 48 Pa. 122, and cases cited in said opinion; Jarman, Wills, Am. ed. 527 — 537.</p> <p>The sureties of an administrator de bonis non are answerable-for the proceeds of real estate sold by him by virtue of an authority to sell contained in the will of the testator. Hartzell v. Com. 42 Pa. 459. It is not denied that the sureties in an administration bond given by an administrator de bonis non with the will annexed in proper form are answerable for the proceeds of real estate sold by'him by virtue of an authority to sell contained in the will of the testator. They, the sureties, Knew they were becoming the sureties of an administrator de bonis non with the will annexed. The final decree of the orphans’ court affirmed the propriety of the decision and charged the administrator with the proceeds, and this is conclusive upon him and upon his sureties. Com. v. Forney, 3 Watts & S. 353; Zeigler v. Sprenkle, Y Watts & S. 1Y5.</p> <p>Even though the form of the bond be defective, the sureties are liable. Ziegler v. Sprenkle, Y Watts & S. 1Y5; Shalter’s Appeal, 43 Pa. 83, 82 Am. Dec. 552; Foster v. Com. 35 Pa. 148. The case of Peed v. Com. 11 Serg. & R. 441, is not in point.</p> <p>In the case of Lantz v. Boyer, 81 Pa. 325, Judge Si-iarswood, laying down a principle of law fully established, said: “It may now be considered as definitely settled, that whenever a power is given by will to executors to sell real estate, with a view to the distribution of the proceeds among legatees, such power belongs to them virtute officii, and may be exercised by administrators. de bonis non with the will annexed, under 6Yth section of the act of February 24, 1834, Pamph. Laws, 86, which provides that “all and singular, the provisions of this act, relative to. the powers, duties, and liabilities of executors, are hereby extended to administrators with a will annexed.”</p> <p>The holder of a joint and several bond may elect to biting a separate action against each obligor, or a joint action against all.. If he proceeds by separate actions, the executor of a deceased defendant, as well as the survivor, continues liable; but if he joins all the parties, and one of them dies pending the suit, the remedy against the assets of the deceased is terminated, and the survivor alone is responsible. Miller v. Reed, 2Y Pa. 248, 6Y -Am. Dec. 459; Walter v. Ginrich, 2 Watts, 204.</p> <p>It is a plain principle in equity, that whenever a man who' had originally a legal remedy impairs it by his own neglect or omission, he shall be postponed to another more vigilant claimant. Dallas v. Chaloner, 3 Dali. 501, 1 L. ed. 696.</p>

The scire facias was brought by the Eirst National Bank of Mahanoy City against Edward Gorman. The defendant pleaded payment of the judgment sought to be revived. Upon the trial the following facts appeared. In 1815, the firm of Lee & Wren procured the Eirst National Bank of Mahanoy City to discount commercial paper of the Bechtelville Iron Company, pledging, as collateral security therefor, first-mortgage bonds of the Bechtelville company.

The action was brought by Seibert and eleven others, trustees, elders, and deacons of the Evangelical Lutheran congregation of Brickerville, originally against Rev. M. Eemsler, Jonas TIerr, and Hannah Buchter, but before the trial other persons were allowed to intervene as codefendants.

This was an action in assumpsit, upon a certificate of deposit of which the following is a copy: $635.00 Lewiston, January 15, 1868. Deposited, to the credit of Mary Ellen Woods, in the office pf Discount and Deposit of William Bussell, six hundred and thirty-five dollars. W. Bussell.

<p>Certiorari to the Quarter Sessions of Dauphin County, to re■view a denial of a petition for a license to sell liquor.</p>

<p>Findings of fact by master, which inyolved credibility of witnesses, sustained on a,ppeal.</p> <p>Note. — See Bugbee’s Appeal, 110 Pa. 331, 1 Atl. 273, where the general facts in this controversy appear. Por the effect of findings of fact by the master, see note to Messinger’s Appeal, ante, 1.</p>

Lydia Ann Woollett loaned to Levi Anderson $300, for which he gave her his judgment note for $324 with Jonathan Anderson as surety, payable one year after date without interest. Nothing having been paid on this note, two years after its maturity judgment was entered thereon for $324, with interest. Subsequently the judgment was assigned to Jehu Madden. Payment of the judgment having been refused, execution was is-, sued thereon.

The nature of the bill and demurrer are best stated in the opinion of the court below: Opinion belofit The bill charges, substantially, that the plaintiff and Stewart T. McCulloch, about the year 1866, erected on the land of the latter a large, frame, two-story building, called the “woolen factory,” at their equal joint expense of $3,600; and plaintiff, by the consent and agreement of said Mc-Culloch, became joint owner with him of said woolen factory; that on 1st July,…

<p>The lien of a levy of a justice’s execution continues for twenty days from -date of the levy, notwithstanding an omission of the constable to return the execution and procure an alias at the expiration of thirty days from issue 'Of the original.</p> <p>Cited in Page v. Gardner, 1 Pa. Dist. R. 539, 11 Pa. Co. Ct. 577.</p> <p>Note. — The lien of the constable’s levy may be extended by the issuing of an alias, indorsed with the levy on the old execution within the twenty days during which the levy remains a lien. McGinnis v. Prieson, 85 Pa. 111. But the alias will not continue the lien, although issued during the lien of the original execution, where no reference is made to the original execution, and no levy is made under the alias, the property in the meantime being disposed of at sheriff’s sale. Ebbert v. Allen, 1 Lane. Bar, No. 22. Nor will the lien be continued if the alias is issued giter the expiration of the original lien. Page v. Gardner, 1 Pa. Dist. R. 539, 11 Pa. Co. Ot. 577. The act of 1810 does not provide for the issuance of more than one alias. Stone v. Mahon, 4 C. P. Rep. 165.</p>

By the third clause of his will, Samuel M. Wickersham gave $20,000 in trust for his daughter, then unmarried, fox life, with remainder to her children, etc., as she should appoint by will, or, in the absence of appointment, to her children, etc., equally; directing that, in default of children, etc., the sum so given should fall into and become part of his residuary estate.

William R. Howe and the Eirst National Bank of Corry,. holding separate judgments against the estate of D. H. Wilder,, entered into a contract to the following effect; “That in case the bank should sell the real estate of Wilder, or transfer the property to Howe, then and in that case, the bank should satisfy its-judgment of $15,750.” Subsequently, the bank having, sold some of the real estate, further proceeds came into court under executions, and a feigned issue was tried…

The suit was by James McAlarney and wife, against Wolverton, and' sought an adjustment of any indebtedness of complainants to defendant, and a decree that on payment of the sum adjudged to be due, the defendant should convey to complainants, his interest in a tract of land described in the bill.

On April 29, 1868, George R. Drips deeded to Josiah Brant-hotel property in the borough of Somerset, and a 5-acre lot adjoining the borough, and took a mortgage thereon for part off the purchase money. Some portion of this mortgage remained unpaid at the death of Drips, and his administrators brought-this action of ejectment to enforce payment.

On November 11869, John Baeastow was ostensible owner-of a piece of land and frame dwelling, bolding them by a deed from tbe former owner, Jacob Corpman, wbicb bad been recorded. Held: that no title passed to him and he had no insurable interest. Heald v. Builders’ Mut. F. Ins. Co, 1.11 Mass. 38. The assured must have some interest in the subject of insurance; otherwise the policy is nothing more than a wager policy or bet, and therefore void.

Stoke & Company erected a building for McCullough, under a contract which provided that extra work should be valued by two-“competent” persons, etc. Extra work was done, and the parties, named arbitrators, who made an award; the arbitrator named by McCullough, the owner of the building, being Marshall, who-had been employed as architect to superintend the work. Stoke- & Company, being dissatisfied with the amount awarded, filed a mechanics’ lien for the sum they claimed.

<p>Evidence to establish parol terms alleged to have formed part of a contract, the residue of which was in writing, examined, and held wholly insufficient, under the general rule that an instrument can never be overthrown by the uncorroborated testimony of an interested party, opposed by that of impartial witnesses.</p>

<p>The lien accorded by the general borough act for expenses of making sidewalks does not attach to a lot until the work for which it is claimed has been begun; and cannot be enforced against one who, though owner when the proceedings were initiated, convoys before commencement of the' work.</p> <p>' Note. — Likewise, under the act of May 16, 1891 (P. L. 69 and P. L. 75, §■ 8), the abutting owner is charged with the cost of street improvements from, the time of the commencement of the work. De Arment v. Kennedy, 14 Pa-Super. Ct. 539. Under the local act relating to Wilkesbarre (Act April 5, 1867, P. L. 841), assessments for paving became a lien from the time of the completion of the work. Beaumont v. Wilkesbarre, 6 Kulp, 103.</p>

The appellants were Leonard and Michael Goerman, and Ann C. Silvis, claiming as half brothers and the half sister of Adam Steiger, deceased. The respondent was Sarah Steiger, his-widow. The report of the administrator of Steiger showed a small fund in his hands, to the whole of which the widow was-entitled, if, as she alleged, he was illegitimate, but if he were’ proved or presumed legitimate, the half brothers and half sister were entitled to share.

<p>Evidence that lessors in a written lease of a house .and lot gave the lease upon the parol condition that one of them should have rooms and be supplied with board by a third person, in the house, offered in support of the right to occupy the reserved rooms, is competent; it does not violate the-rule which forbids parol evidence to explain or vary a written contract.</p> <p>Note. — See note to Woods v. Russell, 1 Cent. Rep. 336.</p> <p>Parol evidence may be offered to show fraud, accident, or mistake in the execution of a lease. Harvey v. Gunzberg, 148 Pa. 294, 23 Atl. 1005; Thudium v. Yost, 20 W. N. C. 217. ' But the representation made must be averred as false and fraudulent. Wilcox v. Palmer, 163 Pa. 109, 29 Atl. 757. So, a subsequent verbal contract modifying the lease may be proved. Wilgus v. Whitehead, 89 Pa. 131. Or an agreement as to a matter not included in the lease. Heilman v. Weinman, 139 Pa. 143, 21 Atl. 29. So it would seem that a contemporaneous agreement which led to the execution of the lease may be proved. Shughart v. Moore, 78 Pa. 469. But see Eberle v. Bonafon, 17 W. N. C. 3.35.</p>

In 1880 Frederick Specht was the owner of a tract of land of which he made a deed, on January 26 to 0. Doris, which deed was recorded the same day. On March 21, 1881, Doris conveyed the land by deed recorded March 22, to A. 0. Brenizer, whose title became finally vested in John 0. Fry. Specht took from Doris a mortgage for $1,175, unpaid • purchase money, which was not recorded until April 9, 1881. On July 21, 1882, Isabella Fry obtained a judgment against John 0.

<p>Plaintiff in an attachment will not he heard to impeach the transaction on which he claims that the garnishee became indebted to the defendant, as fraudulent against creditors.</p> <p>No presumption of intent to defraud creditors arises from paying a debt before it becomes due and taking a rebate of interest.</p> <p>Note. — But it may be shown that the money in the hands of the garnishee, alleged to be the proceeds of the sale of land of a son of the debtor, really belonged to the debtor, the conveyance to the son having been in •fraud of creditors; and the question of the fraud was properly left to the jury. Eirst Nat. Bank v. Cathers, 164 Ea. 343, 30 Atl. 262; Heath v. Page, 63 Pa. 108, 3 Am. Rep. 533. See Skiles v. Dickson, 147 Pa. 117, 23 Atl. .350.</p>

McClure; and the defendants were James A. McClure, as executor of John C. McClure, and James Wilkins. James ,A- McClure and John C. McClure were brothers and step-sons of James Wilkins.

In 1881 Warden and several others were tenants in common of a coal mine. By mutual consent they were operating the mine and making the most out of it they could, and the coal was being sold at the best price they could get. While this arrangement was in being a corporation was created by some of the plaintiff’s cotenants. A meeting of the corporators was •called, and all were present.

The action was brought by Braden against B. E. Campbell. Benjamin Campbell, the father of the defendant, became the owner of the lot in controversy by purchase from James W. Hays, who conveyed it to him by deed dated January 26, 1846. Benjamin Campbell died August 17, 1876, leaving a will of which his two sons, William a.nd Rufus, were the executors. Some years before his death he became deeply involved in debt and died utterly insolvent.

<p>Upon the trial of a question whether there had been a combination between a merchant heavily indebted and one of his creditors, to defraud the others, the judge charged the jury that “a very slight degree of concert or collusion is sufficient to establish fraud,” etc. Held, that the word “fraud” was undoubtedly used by the judge and understood by the jury with reference to the facts of the case, and as meaning combination to defraud, such as was under investigation; and that, so employed, it was not calculated to mislead, and, therefore, was not ground of reversal.</p> <p>Cited in Deishimer Bros. v. Kelly, 5 Pa. Dist. B. 536, holding that attachment will lie against goods levied upon under execution.</p> <p>Note. — The mere fact that the debtor is insolvent will not render void-able the judgment confessed to a bona fide creditor, though, the effect is to .give a preference to the creditor. Keen v. Kleekner, 42 Pa. 529; Greenwalt v. Austin, 1 Grant Gas. 169; Worman v. Wolfersberger, 19 Pa. 59. But if the creditor preferred receives the judgment in collusion with the debtor -to defraud other creditors it is void. Werner v. Zierfuss, 162 Pa. 360, 29 .Atl. 737.</p>

Nathan Schack gave M. Nusbaum a judgment note, on which Nusbaum entered judgment and issued execution. The sheriff seized Schack’s goods on execution, sold them, and paid the money into court. Attaching creditors claimed it, alleging that the judgment was fraudulent as against them, and, on the trial of a feigned issue on the question of fraud, they prevailed.

The action was assumpsit, commenced by attachment by Loucbheim Brothers against Nathan Schack, to recover for goods sold. Schack, the defendant bélow, was a retail merchant, doing business in Waynesburg, Greene county, Pennsylvania, in the year 1881; and Louchheim Brothers were at the same time wholesale merchants in Philadelphia.

The action was brought by Barb against Sayers and Rinehart. Eormer owners of the land in controversy made various agreements to sell it, and had allowed the purchasers to occupy, but the purchasers had made no payments of purchase money, nor had they received deeds; they claimed, however, some equitable interests which, whatever they were, had become vested in defendants.

<p>A creditor who proves his debt in bankruptcy proceedings cannot, in the absence of fraud, impeach the discharge afterwards granted. So held, where the petition was voluntary.</p> <p>Note. — The discharge cannot be impeached even though- there was an agreement in the judgment note waiving the debtor’s rights under the bankruptcy laws. May v. Merchants’ & M. Bank, 109 Pa. 145.</p>

The judgment sought to be revived was entered against Ellis Stevenson, Sr., and Ellis Stevenson, Jr., for $2,400, May 5, 1873. Ellis Stevenson, Sr., died April 9, 1878, less than five years after the date of the judgment. This action was brought November 4, 1881, less than five years after tire death of Stevenson, but more than five years after the date of the judgment. Defendants claimed that the lien of the judgment had expired by lapse of time.

This action was commenced by the assignee of Hathaway & Armstrong, against Thomas Hoge, to recover purchase money which had been paid by Hathaway & Armstrong to Hoge upon a contract which it was alleged Hoge had rescinded. It appeared that on January 31, 1867, property known as the Steele farm was conveyed to one Kanaga and others. The farm was divided into 351 shares, which were parceled out among the several owners, 58 of them falling to Thomas Hoge.

The plaintiffs below were J. B. Madison and his wife, and the object of the action was to recover damages for causing the death of their son. The general facts, as presented on behalf of the plaintiff and found by the jury, were these: The company was not a railroad, but a coal mining company.

<p>A buyer of bank stock promised, as part of the consideration of the sale to him, that he would assume all liabilities o-f the seller, in respect of the stock. The bank afterwards failed, and the Comptroller of the Currency ordered an assessment on the shares. The seller notified the buyer to defend, but, as he did not do so, the seller paid the assessment and sued the buyer for reimbursement. Held, that he was entitled to recover. The promise was valid, although not in writing. The buyer, having been notified to defend, could not object that the seller might have resisted the assessment as outlawed.</p> <p>Note. — Likewise, the transferee of the shares may, by agreement with the corporation, assume the liability of his transferrer. Citizens’ & M. Sav. Bank & T. Co. v. Gillespie, 115 Pa. 564, 9 Atl. 73. The vendor, who has sold subject to an agreement of the vendee to pay, may recover when compelled to liquidate assessments, as is held in Baily v. Shroyer. Trevor v. Perkins, 5 Whart. 244. But the corporation, which is given no charter authority to recover from a transferee, cannot take advantage of such an agreement, even though the transferee, has paid some of the assessments. Pittsburgh & B. Goal, Coke & I. Co. v. Ofcterson, 4 W. N. C. 545.</p> <p>Where the leading purpose of a promise is to subserve some interest or object of the promiser himself, such promise is not within the statute of frauds; and this, though the effect of the promise is to pay or discharge the debt of another. Elkin v. Timlin, 151 Pa. 491, 25 Atl. 139; Dunlevy’s Estate, 10 Pa. Co. Ot. 454, 48 Phila. Leg. Int. 451; Young v. Peeling, 1 York Legal Record, 79.</p>

On November 12, 1881, Wilson Baughman entered of record a. judgment, etc., signed by J. E. Spiegel and J. S. Spiegel, for ■$10,000. On this judgment an execution was issued against the personal property of the Spiegels, and on the same day an attachment execution was served on the Barclay bank, as garnishee of funds belonging to the judgment debtors.

This was an action commenced by Daniel Ackley against Khoda, Ellsworth, and Kichard Ackley, devisees under the will of Joshua Ackley, deceased, to compel partition of a parcel of land. The title to the land was originally in one Samuel Tea-garden, who conveyed it by deed dated February J, 1828, to Joshua. Ackley.

Huston sold land to Hamilton, and took back bill for purchase money secured by a mortgage, upon which judgment wasafterwards obtained which was a lien on other lands owned hy Hamilton. Afterwards, Hamilton sold such other land to Cross-man and Goss, with covenant against encumbrances, and took back judgment bonds secured by mortgage for the purchase price.

<p>Error to the Common Pleas of Armstrong County to review a judgment for plaintiff.</p> <p>This was an action of covenant by Campbell and Prank Murphy against Gillespie. July 28, 1883, judgment was entered on failure of Gillespie to defend. July 23, 1884, fi. fa. was issued. August 21, 1884, petition was presented to a judge at chambers; whereupon fi. fa. was stayed until the following May term. September 1, 1884, a rule was granted to show cause why judgment should not be opened or stricken off. This rule was discharged July 7, 1885, and August 28, 1885, this writ of error was taken, plaintiff assigning as error: (1) The refusal of the court to strike off the judgment; (2) the record of judgment showing no cause of action, and a noncompliance with rules of court allowing plaintiff to take judgment.</p> <p>Where, by the record, there appears no ground for a lawful judgment, this court will reverse, although there be no affidavit of' defense. Com. use of Dauphin County v. Hoffman, 74 Pa. 105;, Eshelman v. Thompson, 62 Pa. 495; Dewart v. Masser, 40 Pa. 302; Swift v. Allegheny Bldg. & L. Asso. 82 Pa. 142; Gottman v. Shoemaker, 86 Pa. 31.</p> <p>Eor want of an affidavit of defense, judgment was entered July 28, 1883; the writ of error was taken August 28, 1885; the act of 1874 allows two years for writs;, therefore the writ must fall.</p> <p>To the refusal of the court to open the judgment, and its decree of July 7, 1885, being matters of discretion, no writ of error lies. Compher v. Anawalt, 2 Watts, 490; Nice v. Bowman, 6 Watts, 26; Kalbach v. Eisher, 1 Bawle, 323; Henry v. Brothers, 48 Pa. 70; Lamb’s Appeal, 89 Pa. 409.</p>

In March of 1872 and September of 1873, H. B. Kinports, B. F. Douglass, and James A. McGee purchased certain tracts of timber land from Bobert McfKaig and E. H. Wilson, amounting in all to 300 or 400 acres. Shortly after, the grantees commenced to improve the property by the erection of a sawmill, dwelling houses, and other buildings. In November of 1873 judgments for $40,000 or $50,000 were entered against the grantees, who were indebted for other large amounts.

<p>The trustee held to be the proper person to receive and distribute, under the direction of the court, a fund representing part of an estate assigned for the benefit of creditors.</p> <p>Note. — In this ease the assignee, without notice to creditors or leave of court, had reeonveyed the property to the assignor. This was held void in Golden’s Appeal, 110 Pa. 581, 1 Atl. 660.</p>

<p>Error to the Common Pleas of Armstrong County to review a judgment in trespass for defendant.</p> <p>Judgments having been recovered against Labana Steele and executions issued thereon, W. J. Steele purchased all his property, including his store, four horses, used for trotting and pleasure, a buggy, sleigh, and leasehold; and assumed and paid the execution debts and others, amounting to a full consideration for such sale. Subsequently, Miller, a constable, the defendant herein, levied upon and sold two of the horses, a buggy,, and sleigh under judgment obtained by other creditors against. Labana Steele for a debt contracted prior to the sale to W. J. Steele, and W. J. Steele brought this action of trespass therefor.</p> <p>The judge below directed verdict for defendant, on the ground that the sale was fraudulent as to creditors, based on the absence of delivery of the property, and plaintiff took this writ of error.</p>

This was an action of ejectment, brought by A. G. McNabb and wife, in the right of the wife against the defendant, L. H. He Wolf, to recover a piece of-land situate in the borough of .'Sharon, containing about 1/3 of an acre. The plaintiff and defendant both traced title from one J. D. •Smith, as common source; and the real controversy in this case •concerned the good faith of a conveyance by Smith to the defendant’s predecessor in title, one Hofius.

On May 5, 1880, certain paupers were, by order of the quarter sessions of Armstrong county, removed from East Eranldin ■township to Parker township.

This action was commenced by the widow and children of Daniel McClafferty to recover of Fisher Brothers for alleged’ negligence causing the death of McClafferty. Fisher Brothers, oil producers, struck a large gas and oil well from which the volume of gas was great, and its flow created much noise; they took no measures to prevent persons from coming near with lights in the nighttime; nor did they provide-any of the usual modes of carrying off the gas.

The Sandy Lake Co-operative Association, Limited, composed of the plaintiffs in error, was organized under the act of June 2, 187J, and its supplements, by articles of association as follows: “To all to whom these presents, shall come, be it known, that agreeably to an act of assembly, passed June 2, a. d. 1874, entitled ‘An Act Authorizing the Formation of Partnership Associations,’ in which the capital subscribed shall alone be responsible for the debts of the association,…

<p>Error to the Common Pleas of Cambria County.</p> <p>The case was a feigned issue awarded to determine the ownership of a large quantity of powder, dynamite, etc., which Murray had attached as the property of one Van Aken, but which was claimed as the property of the defendants,, the Laflin & Hand Powder Company, and Patterson and Andrews, who had furnished it in quantity along a railroad which Murray was constructing, to be used by him as needed, and to be paid for as-used.</p> <p>Upon the trial the defendants distinctly requested the court, to instruct the jury as follows:</p> <p>1. That the delivery of the powder, fuse, etc., to Van Aken, by the defendants, was upon a bailment; and, hence, the same are protected from Van Aken’s creditors, and the verdict must be for defendants.</p> <p>2. That the contract, as testified to . . ., being that the defendants should store a quantity of powder, etc., in a. magazine at Ashland, from which Van Aken was to draw, as required (and for which he was to make monthly returns and payments), the powder, etc., in the magazine continued the property of the defendants, and the verdict must be for the defendants.</p> <p>The court, however, instructed the jury: “We are quite clear that this, taking all the defendants’ testimony as true, was-not a bailment, but a conditional sale; and, so viewing the law, we refuse to affiim defendants’ points; and direct judgment to-be entered for plaintiff.</p> <p>Defendants brought error.</p> <p>But the assignment of error was in.the following form:</p> <p>“The court erred in refusing to affirm defendants’ points and! in entering judgment for plaintiff.”</p>

The facts sufficiently appear in the charge of the court below as follows: Charge: This is a seire facias to revive a judgment obtained by the plaintiff against the defendant tQ No. 205, December… Held: that such liens were not defeasible by the interposition of the plea of a discharge of the bankrupt in bar of the action. Peck v. Jenness, 7 How. 612, 623, 12 L. ed- 841, 845.

^ A petition having been presented to the court of quarter sessions of Cambria county, for the location of a road in Washington township, viewers were appointed for that purpose.

<p>Nothing but fraud in the acquisition of the title or the payment of the purchase money when such title is obtained will raise a resulting trust. Neither a promise to pay, nor after-payment, is sufficient for that purpose.</p> <p>Note. — See note to Ackley v. Ackley, ante, 138.</p> <p>The money with which the purchase is made must be impressed at the time of the purchase with a trust that the purchase should be for the person furnishing the money. Moyer’s Appeal (Pa.) 12 Gent. Rep. 519, 14 Atl. 253. It does not arise from an advance of money after the purchase is complete. Walter v. Snowden (Pa.) 6 Cent. Rep. 731, 8 Atl. 406; Hiltner v. Hiltner, 4 Montg. Co. L. Rep. 141.</p>

Pule to show cause why judgment of non pros, should not be taken off. On February 16, 1885, a writ of error was returned into the supreme court in a case in which the Lebanon Mutual Insurance •Company was plaintiff in error, and John Erb was defendant in error, and a judgment of non pros, was entered thereon, and the record remitted to the court below.

The borough of Ebensburg was incorporated by the act of assembly, January 15, 1825. The act of incorporation being prior to the adoption of the common-school system, of course no provision for the election of directors was made. On March 9, 1857, by decree of the court of quarter sessions upon petition of the proper authorities, the borough was made subject to the general borough law approved the 3d day of April, 1851.

The history of the case as stated on behalf of the plaintiff in error was substantially as follows: Judgments were entered d. s. b. by John D. McKennan, trustee, against Bernard F. Rafferty, in January, 1885. On January 27, 1885, executions issued upon them came into the hands of the sheriff. The sheriff levied the executions upon 86 coal-hopper railroad cars as the property of the defendant, Bernard F. Rafferty.

<p>Denial of motion to dissolve preliminary injunction held error.</p> <p>Note. — -See note to Lebanon Mut. Ins. Co. v. Erb, mite, 181.</p>

During the latter part of the year 1884 pipes were laid by a private company from the Creswell natural-gas well, along Lookout avenue in tbe borough of Butler, in front of property owned by John A. Goetz, for the purpose of supplying tbe borough with gas. The pipes were so negligently laid that, upon the nigbt of December 20, 1884, a large quantity of gas forced its way out of the pipes into the cellar of J. A. Goetz.

The hill in equity which was the origin of these proceedings was filed for the purpose of procuring a regulation by the court below of a crossing by the Chartiers Connecting Railroad Company of the road of the Wheeling, Pittsburgh, & Baltimore Railroad Company (the appellant herein and complainant ■ in the court below), and to procure injunction restraining the appellee from making .its crossing until the court should make its decree and until security given as required by…

Yandegrift & Company, distillers and owners of a liquor store, filed their petition in the quarter sessions of Washington county, praying that license be granted them upon filing proper bond to sell, at their place of business spirituous liquors in quantities not less than a quart. The license was refused on the ground that the court had no authority to grant to distillers a license to retail liquors by the quart; whereupon, this writ was brought by petitioners.

The Butler Gas Company, duly incorporated, became insolvent, and its franchises were sold by the United States marshal and purchased by the Mutual Gas Fuel Company, a newly incorporated company. Pipes had been previously laid by the Butler Gas Company through the streets of the borough of Butler, and connected with houses, without license from the borough authorities.

■ On several petitions being presented to the orphans’ court of Washington county, Dr. W. L. McCleary was appointed as guardian of the infant children of Martha Danley, deceased.

<p>Error to the Court of Common Pleas of Washington County to review a judgment for plaintiff’ in ejectment.</p> <p>In September 1867, Bobert Boyd, deceased, the father of Mary A. Braden, purchased the property involved in this suit. In May, 1875, he deeded it to Wm. H. Braden for the use and benefit, as he stated, of his wife, Mary A. The Washington Savings Bank held a judgment against Braden, upon which execution was issued and levied upon this property. Mrs. Braden gave notice that she was the owner of the property, but the sheriff sold it, and William Workman, cashier of the bank, purchased it for the use of John Hall, the receiver of that institution. He then brought this action to recover possession. At the trial, defendants offered parol evidence to show that the deed to Braden was in trust for Mrs. Braden, which was rejected. Verdict and judgment having been entered for plaintiff, the defendants brought error.</p>

George Bently died'October 30, 1882, intestate and unmarried. A. P. Morrison was appointed administrator of his estate, and his report as such administrator confirmed.

Ejectment by Stewart to recover possession of a certain piece of land.

In the year 1864 James McBurney went to reside with Robert Stewart on his farm in Butler county. From that time to the year 1884, when he was dismissed, he continued to reside with and work for Stewart. Soon after his dismissal he brought this action to recover for his services. The defense was the statute of limitations, which plaintiff sought to meet by allegations of frauds, in that the defendant had promised to deed him a farm in compensation, and had not. done so.

<p>Appeal from a decree of the Common Pleas of Allegheny County, in equity, refusing the right of subrogation.</p> <p>On July 8, 1882, John T. Moss was the owmer of a distillery, and was engaged in the business of distilling whisky. On that day a judgment was entered against him in favor of Frederick Koher, which, thereby, became a lien on the distillery property. At that time Schmidt & Friday and George Y. McKee, the appellees, were the owners of most of the whisky in Moss’ distillery warehouse, having purchased it subject to the revenue tax. Upon a prior judgment, the distillery property was sold, and, from the sum so realized, the United States claimed and received the amount of its demand for taxes upon the whisky so manufactured and sold. Kober then brought this action to be subrogated to the rights of the United States to collect the amount of its tax out of the whisky. The bill, having been demurred to, was dismissed, and plaintiff appealed.</p>

This action was commenced by Jacob and TIannah Clutzbeher against the Union Passenger Railway Company to recover for alleged carelessness and negligence in a driver of one of the defendant’s horse cars, causing the death of their minor son Charles.

Hugh Beattie boarded a car of the Citizens’ Passenger Bail-way Company, which operates a street railway in the city of Pittsburgh, and took his stand upon the steps of the front platform, there being no other room on the car, with his back towards the horses. While in that position, a passenger desiring to alight from the car told the driver to stop, which he attempted to do.

1, of Allegheny County to review a judgment for plaintiff in ejectment, rendered on a verdict directed by tbe court. The land in question was purchased in 1873 by Mrs. Collins, wife of the plaintiff herein, from J. S. StricMer, for the consideration of $15,000. At that time it was subject to a purchase-money mortgage of $7,000 given by a previous grantor. In January, 1884, tbis mortgage was assigned to Charles Large, it having been reduced by payments to $552.50.

<p>Appeal from a decree of the Orphans’ Court ‘of Allegheny County.</p> <p>Jonas E. McClintock died November 25, 1879, appointing Eachel B. McClintock his executrix. During the settlement of the estate, E. E. Stewart, administrator of James Kelly, presented for payment a promissory note for $710, signed by Mc-Clintock in favor of Kelly, and dated April 15, 1875. Mrs. McClintock resisted payment of this demand, upon the ground that it was more than eight years overdue, and, hence, barred by the statute of limitations.</p> <p>By decree entered December 12, 1884, the court allowed the claim, and the executrix appealed.</p>

Appeal and certiorari to review proceedings of the Common Pleas of Allegheny County refusing to open, vacate, and strike off a judgment against defendant. December 10, 1875, The Allegheny Valley Railroad Company brought suit against E. E. Phillips, administrator of the estate of Wm. Phillips, deceased, and January 8, 1883, recovered judgment for the sum of $466,837.36.

1, of Allegheny County to review a judgment for plaintiff. This action was brought by Venter against Heinrich, an alderman of Allegheny county, to recover the penalty prescribed by the act of 1814 for the taking of excessive fees. The defendant did not controvert any of the plaintiffs allegations at the trial, hut contended that the penal clause of said act had been repealed.

Bishoff sued Charles before the recorder of Allegheny City in February, 1883, claiming $169.50, alleged to be for board and borrowed money, and obtained a judgment for that amount. Charles appealed to the common pleas, and Bishoff filed his affidavit of claim, in which he claimed the $169.50, “as set forth in the annexed bill” for board and borrowed money and interest from October 30, 1882. Charles filed an affidavit of defense denying any indebtedness to Bishoff.

1, of Allegheny County. William Maloney had been a member of the firm of Mullen and Maloney, which firm was engaged in the purchase and sale of scrap iron. He died in 1874, leaving a will by which his executors were empowered to continue the business, if they saw fit. It was continued under the same firm name by Mullen and Mrs. Maloney, the new business of manufacturing pig iron being added.

1, of Allegheny County to review a judgment for plaintiff in an action to recover for personal injuries. On January 5, 1884, the Washington Natural Gas Company contracted with Charles O’Shea for the laying of pipe from the McGugan gas well to the city of Pittsburgh. O’Shea was to excavate the trench and refill it, and the company reserved the right to complete the work at his expense, if it was done m an unsatisfactory manner by him.

2, of Allegheny County to review a judgment on a verdict- for plaintiff in an action by vendor for price of land sold. The action was by John Boden against William Gallagher, and was originally brought in assumpsit, but was changed to debt. The plaintiff sought to recover the purchase money of a lot of land in Pittsburgh, sold by him to the defendant, by a written agreement of which the following is a copy: Pittsburgh, Pa., Aug. 20, 1884.

1, of Allegheny County, to review an order refusing judgment for want of sufficient affidavit of defense. On December 30, 1884, Henry Potter obtained a judgment for damages against the Pittsburgh Southern Railway Company, for taking land for a right of way for its tracks through his farm. Execution having been issued, it was ascertained that the company was insolvent, and that its property had been sold on November 20, 1884, to the Baltimore & Ohio Railroad Company.

2, of Allegheny County, to review a judgment for plaintiff in ejectment. By an instrument of writing dated January 10, 1883, A. M. McClure leased to T. A. Lynch a certain stone quarry. Subsequently, one Martin Joyce entered upon and worked the quarry, thereby excluding Lynch from the possession and enjoyment of it. Thereupon Lynch brought ejectment against Joyce to recover the premises and damages.

Common Pleas, No. 1. of Allegheny County sitting in equity. On September 24, 1872, George W. and Wm. McMurray conveyed to Thomas. Grafton a lot of ground in Noblestown upon which was reserved a purchase-money mortgage. The following spring Isaac J. Stewart under contract with Grafton erected a building thereon and on November 13, 1873, filed against the property a mechanic’s lien.

<p>Scire facias sur mortgage held to aver with sufficient precision the nonpayment of principal and interest for sufficient length of time to render the whole amount due and payable according to the condition of the mortgage.</p> <p>Affidavit of claim held admissible in evidence so far as it was not denied.</p> <p>Note. — A scire facias sur mortgage takes the place of a statement, and should, therefore, aver that the mortgage has become due because of. the expiration of twelve months from the term of payment (Weigley v. Cbarlier, 9 Pa. Dist. II. 670, S Del. Co. Rep. 71) ; or, if issued before that time, should allege the conditions which have not been complied with, which gives the mortgagee the right. Swift v. Allegheny Bldg. & L. Asso. 82 Pa. 142; Lewis v. Flatly, 4 O. P. Rep. 176. But the omission has been held to be amendable (Hosie v. Gray, 71 .Pa. 198), even after a trial on the merits. Swartara Sav. Bldg & L. Asso. v. Foley, 2 Pearson (Pa.) 2G5. If the scire facias alleges the mortgage to be due when not, the mortgagor must allege the contrary in his affidavit of defense to take advantage of the defect. Rhoads v. R,eed, 89 Pa. 436.</p>

Appeals from decrees of the Common Pleas, No. 1, of Allegheny County refusing to open judgments. On September 30, 1833, two judgments were confessed in the court below upon notes and warrants of attorney, under seal, which were alleged to have been executed by one D. Kelly and the appellant in favor of appellant’s brother, the plaintiff below.

The facts were that, in 1857, a judgment was entered in favor of Wm. L. Speer against James and Edward McOlafferty, which judgment was kept revived against James McOlafferty until 1880, when property belonging to his estate was sold under a vend. ex. to John Berg & Company, the plaintiffs in error, to satisfy the judgment, and a deed duly acknowledged by the sheriff was delivered to them.

1, of Allegheny County confirming an auditor’s report. W. & H. Walker obtained a judgment against David McElvenny, and issued execution and levied upon the material and implements which defendant used in his business of making fertilizers out of the bones and spoiled meat gathered in the cities of Pittsburgh and Allegheny. Notices were served upon the sheriff by employees of IVlcElvenny to retain the amount of their wages ont of the proceeds of the sale.

<p>The credibility of competent witnesses (in this case to a will) is always for the jury.</p> <p>In passing upon the question whether the decedent executed the paper which purported to be his last will, it was competent to offer testimony to show that a person named as a beneficiary, and designated as testator’s wife, was in fact his mistress.</p> <p>A testator has a legal right to devise property to a mistress.</p> <p>Cited in Johnson’s Estate, 10 Montg. Co. L. B,ep. 54.</p> <p>Note. — No presumption of marriage arises from cohabitation, where there is a conflict of testimony as to reputation; but that fact, in connection with the evidence of reputation, is to be considered by the jury. Greenawalt v. MeEnelley, 85 Pa. 352.</p>

<p>From a decree of the Court of Common Pleas, No. 1, of Allegheny County.</p>

2, of Allegheny County to review a judgment of nonsuit in an action for damages for personal injuries. The facts as they appear in behalf of the plaintiff in error are as follows: Hugh Campbell came to this country in the early part of May, 1882. He was a steel worker by trade, and, after seeking and failing to obtain employment at his regular trade, he applied to Mr. Stewart, a general foreman or car master of defendant, for work.

Appeals from a deeree of the Common Pleas, No. 1, of Allegheny County sitting in equity. The appellant, Christopher Hope, was, on April 16, 1881, declared to be a lunatic, and he and his estate placed under the charge of Joseph S. Stewart, committee. On July 21, 1883,. proceedings were suspended, and he was restored to his rights.

<p>The report of an auditor in a ease involving the appropriation of assets by the directors of an insolvent bank, to their own use, reviewed a.nd sustained, upon the settled principle that the report of a careful auditor upon the facts, approved by an experienced judge, must be permitted to stand, until plain error is pointed out.</p> <p>Cited in Meyers v. Campbell, 59 N.' J. L. 379, 35 Atl. 788, holding that securities.belonging to the principal debtor and pledged by him to indemnify his surety will inure in equity to the benefit of his creditor.</p> <p>Note. — See note to Messinger’s Appeal (Pa.) 1 Cent. Rep. 126, 1 Atl. 260, for the effect of findings of fact by a master. The same rules apply to the findings of auditors. If there is sufficient evidence to sustain the finding, which has been approved by the court below, the appellate court will not reverse, except for manifest error. Lowry’s Estate, 6 Pa. Super. Ct. 143, 41 W. N. C. 348,- Seibert’s Estate, 4 Pa. Super. Ct. 514, 40 W. N. C. 278; Kedward v. Campbell, 166 Pa. 365, 31 Atl. 114; Coulston’s Estate, 161 Pa. 151, 28 Atl. 1020; Baird v. Eord, 152 Pa. 637, 25 Atl. 879. But, if there be no evidence to sustain the finding, it will be set aside. Jacob’s Appeal, 107 Pa. 137.</p>

1, of Allegheny County, to review a judgment for defendant in an action for damages. On the morning of July 10, 1882, John Keys, an engineer employed by the Pennsylvania Company and having charge of a shifting engine in the Allegheny yard, was crossing the tracks of the yard to reach his engine, when he was run over and killed by an engine in charge of one Cutler, who was also employed by the same company.

1, Allegheny County to review a judgment for plaintiff in an action to recover damages for personal injuries. The Pittsburgh, Chartiers, & Youghiogheny Railway Com.pany, in extending its connections, found it necessary, in July, 1883, to build a track from its main line to the Ohio river, in Allegheny county.

Appeals from a decree of the Orphans’ Court of Allegheny County distributing a decedent’s estate. The facts are stated by the court below as follows: Henry Barker died testate in September, 1858, leaving to survive him his wife, Elizabeth Barker, and six children, George, Florence, Henry, Charles, J esse, and Ida.

1, of Allegheny County to review a judgment entered non obstante veredicto. This was an action to recover the annual rental or purchase money of a right of way over a certain tract of land in Mifflin township, Allegheny county. The right of way was granted by Nancy West to Matthew Henning and William Redman by a lease in writing, dated July 20, 1864:, acknowledged and recorded. The annual rental reserved was $300.

<p>Error to the Court of Common Pleas, No. 1, of Allegheny County.</p>

1, of Allegheny County to review a judgment for defendant in a feigned issue to try title. The statement as given on behalf of the plaintiff in error is as follows: December 1, 1880, Wm. F. Scbatz went into partnership with Frank H. Kirker, under the firm name of F. TT- Kirker & Company. Kirker had theretofore carried on the dry goods business in the city of Allegheny.

<p>Affidavit of defense held insufficient.</p> <p>Note. — An affidavit of defense which claims as a set-off damages from failure to fulfil a contract must show wha.t the default consisted of, and the damages suffered. Conrade v. O’Brien, 1 Pa. Super. Ct. 104, 37 W. N. C. 493; Consumer’s Gas Co. v. American Electric Constr. Co. 30 W. N. C. ■222, 50 Fed. 778; Loucliheim v. Becker, 3 W. N. C. 449; Jackson v. "Farrell, 6 Pa. Super. Ct. 31. But if it be alleged that the damages exceed the plaintiff’s claim, the affidavit is sufficient, though not liquidated. Crompton v. Restein Bros. 2 W. N. C. 154; Lane v. Penn Glass Sand Co. 172 Pa. 252, 33 Atl. 570; Davis Coal & Coke Co. v. Price, 175 Pa. 155, 34 Atl. 444; '.Malone v. Philadelphia, 132 Pa. 209, 19 Atl. 54; Martinez v. Eamshaw, 143 Pa. 479, 22 Atl. 668. ■ -</p>

<p>Error to the Common Pleas, No. 2, of Allegheny County to review a judgment for defendant in an action for trespass for removing a fence.</p>

<p>Certiorari to the Quarter Sessions of Allegheny County.</p>

<p>From a decree of the Common Pleas, No. 2, of Allegheny County.</p>

2, of Allegheny County to review a judgment for plaintiff in an action for damages to property. This action was brought by James Gardner against William Ward to recover for damages alleged to have been caused to Gardner’s premises by a cesspool negligently kept and maintained on Ward’s lot.

<p>The burden of proof is upon those objecting to the allowance of a claim evidenced by a note of the decedent, where decedent’s signature to the note is admitted.</p> <p>Note. — Ordinarily, the burden of proof is upon the claimant against the decedent’s estate. Heffner’s Estate, 134 Pa. 436, 19 Atl. 693.</p>

1, of Allegheny County, disallowing a set-off. The firm of Tomer & McKinley brought an action of trover against the Marine Saw Mill Company, at the June term, 1883. After the suit was brought, and before judgment, they assigned the claim, for a valuable consideration, to Horner & Roberts, who obtained a judgment against the company in 1885.

<p>Error to the Court of Common Pleas, No. 1, of Allegheny County.</p>

Upon tbe accounting of the executors of the estate of John Seddon, deceased, John Larzalere presented to the court a claim of $290 against decedent's estate. This claim consisted of a promissory note signed by Seddon in favor of Larzalere. The claim was objected to on the ground that the note was an accommodation note, given by decedent to claimant and was without consideration.

The facts of the case are well stated in the opinion of the court below, which was as follows: Opinion by Woodward, J.: Upon the filing of a petition signed by John T. Lenahan, Henry A. Fuller, and J. Yaughan Darling, Esquires, as a committee of the Wilkes Barre Law & Library Association, together with a copy of certain specifications and charges, this court on July 2J, 1885, granted a rule on Blank, Esq., a member of the bar, to show cause why he shall not be disbarred or…

In 1870, Edwrard Kugel was appointed guardian of the minor heirs of John Muller, deceased. Held: “If the trastee purchase with an intention to hold for himself it is a legal fraud. Any confirmation of such sale must be upon a full knowledge of all the cireumstances, and a deliberate examination by the parties interested, i. A chancellor will not assist one to obtain anything arising out of a fraud.

2, of the City of Philadelphia, to review a judgment for defendants. In 18Y2 Jacob U. Peters procured the passage of an ordinance under which the commissioner of highways awarded to him the contract to pave Indiana avenue, in the city of Philadelphia, and this action was brought to enforce a lien for such improvements against property situated upon said road.

<p>A judgment confessed after dissolution of a partnership by one of the former partners against both, hold valid against him and his interest in the assets, but invalid against the other.</p> <p>Note. — The power of the partner to act as the agent of the firm, and of his copartners, ceases with the dissolution of the partnership. McKelvy’s Appeal, 72 Pa. 409; MeCahan v. Smith, 9 Pa. Super. Ot. 318. So, no authority exists to confess a judgment, which will bind other than himself, though for a debt due bj' the partnership. McGleery v. Thompson, 130 Pa. 443, 18 Atl. 735; Bennett v. Marshall, 2 Miles (Pa.) 436; McKenna v. Me-Sherry, 4 Pa. Dist. It. 676, 1 Lack. Legal News, 230. In Thomas v. Ashbrooke, 1 W. N. C. 3, an execution on a judgment so confessed for partnership indebtedness was allowed to stand as to the firm property.</p>

2, of Philadelphia County, to review a judgment for plaintiffs, in an action for the recovery of a ground rent. This was an amicable action, upon an agreed state of facts, brought by the executors of Jacob Hehl against James Williamson, to recover arrears of ground rent falling due September 1, 1884. The facts were, that Jacob Hehl had deeded a tract of land to James Williamson subject- to a ground rent, which Williamson covenanted to pay.

4, of Philadelphia County, sitting in equity. The hill in this case was filed hy Lewis J. Levick against John Diffley, praying an account of profits.

<p>Prom a decree of the Common Pleas, No. 4, of Philadelphia ■County.</p>

<p>A master is liable for the act of his servant within the general scope of his employment, although the specific act be done at a time and in a manner contrary to an express order of the master.</p> <p>Note. — It is the duty of an engineer, under certain circumstances, such as the approach to a highway, to give warning by sounding the whistle of his engine, and the railway company can only be held liable in damages resulting from the Lightening of a horse thereby, when the same was done in an unusual, extraordinary, or wanton manner. Bond v. Bunting, 78 Pa. 219; Lott v. Frankford & S. Pass. R. Co. 1S9 Pa. 471, 28 Atl. 299; Hanlon v. Philadelphia & W. C. Turnp. Road Co. 182 Pa. 115, 37 Atl. 943.</p> <p>When such a question arises the case must be submitted to the jury to find the facts. Bond v. Bunting, 78 Pa. 219.</p> <p>As to master’s civil liability to third persons for the wrongful or negligent acts of his servants in general, see editorial note to Ritchie v. W’aller, 27 L. R. A. 1G1, presenting in full the authorities on that subject. See also the following editorial notes: to Taylor v. Downey, 29 L. R. A. 92, on liability of bailee for wrongful appropriation by liis servant of the thing bailed; to Davis v. Houghtelin, 14 L. R. A. 737, on liability of master for assaults committed by servant; to Mulligan v. New York & R. B. R. Co. 14 L, R. A. 791, on liability of master for false arrest, imprisonment, or malicious prosecution by servant.</p> <p>As to his criminal and penal liability for acts of servants, see editorial note to Williams v. Hendricks, 41 L. li. A. 650.</p>

A bill in equity was filed by Benjamin Harper against the Greenmount Cemetery Company, and an injunction granted on June 9, 1880. Subsequently, a master was appointed to take testimony. The Greenmount Cemetery Company was incorporated September 25, 1879, and owned two adjoining tracts of land, known as the Baker tract of 59 acres, and the Hoffman tract of about 20 acres. A lane 33 feet wide led into the Baker tract.

<p>Error to the Common Pleas, No. 1, of Philadelphia County to review a judgment for plaintiff in an action for damages for personal injuries.</p>

1, of Philadelphia County sitting in equity, sustaining a demurrer to a bill for discovery. This was a bill for discovery in aid of an action at law filed. by Francis F. Milne against Benjamin Bullock, George Bullock, and James M. Bullock.

<p>Error to the Common Pleas, No. 1, of Philadelphia County to review a judgment for defendant in an action for damages for personal injuries.</p> <p>The Pennsylvania Railroad Company operates what is known as the Trenton Railroad, which passes over a public street in the city of Philadelphia known as Trenton avenue. This road runs for some distance alongside of the tracks of the railroad, and there was, at the time of the accident, no fence to separate the road from the tracks. Eouhy was driving along Trenton avenue, when a train of cars came along the track from the opposite direction. When the train approached the place where Eouhy was, the engineer commenced ringing the engine bell, which frightened Eouhy’s horse and caused it to back the cart so near the track that it was struck by the engine, and the injuries complained of were inflicted. Eouhy brought this action against the railroad company, alleging negligence in the unnecessary ringing of the bell, and in the neglect to provide a fence between the street and the railroad tracks.</p> <p>A verdict was directed for defendant and plaintiff brought ■error.</p> <p>When a railroad and a common road occupy the ■same road bed parallel to each other, the public have rights .■as high as the railroad, and the agents of the latter are bound to use proper care. Philadelphia W. & B. R. Co. v Stinger, 78 ,Pa. 219; Shearm. & Redf. Neg. § 468, p. 573; Pittsburg, Ft. W. & O. R. Co. v. Dunn, 56 Pa. 283; Westchester & P. R. Co. ■V. McElwee, 67 Pa. 315; Pennsylvania R. Co. v. Barnett, 59 Pa. 259, 98 Am. Dec. 346.</p> <p>The railroad company was bound to a high degree of care to avoid injury to others having equal rights with them. Franlt■ford & Turnp. Co. v. Philadelphia & T. R. Co. 54 Pa. 345, 93 Am. Dec. 708; 'Westchester & P. R. Co. v. McElwee, 67 Pa. 314.</p> <p>A railroad company is bound to furnish a safe and sufficient ■roadway. It owes this duty to all who travel over it. O’Donnell v. Allegheny Valley R. Co. 59 Pa. 248, 98 Am. Dec. 336.</p> <p>Whether a state ■ of facts admitted or proved constitutes negligence is generally a •■question of law to be declared by the court. Goshom v. Smith, '8 W. N. 0. 289; Catawissa R. Co. v. Armstrong, 52 Pa. 282; .Philadelphia W. & B. R. Co. v. Stinger, 78 Pa. 219; Gerety v. Philadelphia W. & B. R. Co. 81 Pa. 275.</p> <p>When, in an action for injuries or death alleged to have been ■ caused by the negligence of defendant or of their servants or agents, the evidence fails to disclose the negligence, or any facts from which it could reasonably be inferred, the court .should give the jury binding instructions to find for the defendants. Baker v. Fehr, 10 W. N. 0. 56.</p> <p>Where facts have not been shown from which negligence may ■-reasonably be inferred, it should not be submitted to a jury, to infer arbitrarily, and without evidence, that there was negli,-gence. Philadelphia & R. R. Co. v. Yerger, 73 Pa. 121; Philadelphia & R. E. Co. v. Heil, 5 W. N. C. 91; Clark v. Phila-delphia & R. R. Co. 5 W. N. C. 119; Pennsylvania R. Co. v. "Fries, 5 W. N. C. 545; Goshorn v. Smith, 8 W. N. C. 289.</p> <p>It is the duty of an engineer approaching a highway, if danger is to be apprehended, to give warning by sounding the whistle or other sufficient alarm. The failure to do so is negligence, per se. Philadelphia W. & B. R. Co. v. Stinger, 78 Pa. 219; Strong v. Sacramento & P. R. Co. 61 Cal. 326; Louisville, C. & L. R. Co. v. Goetz, 79 Ky. 442, 2 Am. Rep. 227.</p> <p>It was declared in a New York case to be the duty of the engineer to ring the bell or blow the whistle continuously in approaching a crossing. Smedis v. Brooklyn & R. B. R. Co. 88 N. Y. 13.</p> <p>The right to operate a railroad includes the right to make the noises incident to the movement and working of its engines, and to give the usual and proper admonitions of danger, as in the sounding of whistles and the ringing of bells. It is therefore not liable, while exercising this right in a lawful and reasonable manner, for injuries occasioned to horses when being driven along the highway, who take fright at such noises. Dray-ton v. North Pennsylvania R. Co. 10 W. N. C. 55; Philadelphia, W. & B. R. Co. v. Stinger, 78 Pa. 219. See also Whitney v. Maine C. R. Co. 69 Me. 208; Norton v. Eastern R. Co. 113 Mass. 366; Billman v. Indianapolis, 0. & L. R. Co. 76 Ind. 166, 40 Am. Rep. 230, 6 Am. & Eng. R. R. Gas. 49, note, and other cases there cited.</p> <p>It is contributory negligence to undertake to drive, in the neighborhood of a railroad, a horse easily frightened by a passing train. See Goldstein v. Chicago M. & St. P. R. Co. 46 Wis. 404, 1 N. W. 37; Chicago & N. W. R. Co. v. Clark, 2 111. App. 116.</p> <p>Without some provision in its charter to that effect, or unless required to do so by statute, a railroad company is not bound to make or maintain fences along its track. Pennsylvania R. Co. v. Riblet, 66 Pa. 164, 5 Am. Rep. 360; New York & E. R. Co. v. Skinner, 19 Pa. 298, 57 Am. Dec. 654; 1 Redf. Railways, 492. See note to Dunkirk & A. Valley R. Co. v. Mead, 1 Am. & Eng. R. R. Cas. 171, and cases there cited.</p>

This action was brought by the National Bank of the Northern Liberties against the American Ship Building Company upon the following promissory note: $3,039 11/100. New York, November 24, 1883. Four months after date we promise to pay to the order of ourselves three thousand thirty-nine and eleven hundreths ($3,039 11/100) dollars at the United States National Bank, New York. Value received. No. 23, due March 27, ’84. The American Ship Building Co. J. E. Tams, Treasurer.

2, of Philadelphia County. This was a proceeding instituted by Elizabeth Morris and the Pennsylvania Company for Insurance on Lives and Granting Annuities, trustees under the will of George C. Morris, deceased, and assignee of Elizabeth Morris, executrix of the last will and testament of George 0. Morris, deceased, against John Barnard. Judgment was entered upon a bond with warrant to attorney dated January 28, 1882, for $66,000 conditioned for the payment of $33,000.

<p>One who, by a decree of court, is declared to be legally elected to an office, and, in accordance with such decree, is duly commissioned “to have and to hold the office hereby granted unto you for the term of live years, to be computed from the first Monday of April, 1880,” is entitled to have his compensation commence on that day, although prevented from taking the office a.t that time.</p> <p>Note. — See also editorial note to State ex rel. Greeley County v. Milne, 19 L. R. A. 689, presenting the authorities as to the right of officer de jure to salary for period during which a de facto officer has acted and received pay.</p>

<p>Error to the Common Pleas, No. 1, of Philadelphia County to review a judgment for defendants in á scire facias to renew a mortgage.</p>

<p>From a decree of the Orphans’ Court of Philadelphia County.</p>

4, of Philadelphia County to review a judgment of nonsuit. This was an action of ejectment brought by Ann Ross against the Pennsylvania Railroad Company to recover possession of property taken by the company for railroad purposes.

Samuel B. Bailey died seised and possessed of property' valued at about $200,000. By his will he appointed his wife, James W. Paul, and John Craig executors, giving them power to sell his real estate, either at private sale or at public auction,, “avoiding unnecessary sacrifice.” His wife survived him only about two weeks. The executors sold considerable real estate. Upon the final accounting of the executors, Marwood H. Bailey,.

<p>Error to the Common Pleas, No. 1, of Philadelphia County to review a judgment for plaintiff in an action for damages for personal injuries.</p>

2, of Philadelphia County to review a judgment for plaintiffs in an action for damages for the publication of a libel. This action was brought by August J. W. Spieckermann and Eredericka Brandt Spieckermann, his wife, in right of the wife against Edwin H. Nevin, Jr., president of The Evening News Company, a corporation publishing a daily newspaper in the city of Philadelphia.

3, of Philadelphia County to review a judgment for plaintiff in an action of rent. The plaintiffs were the owners of a lot of ground in the city of Philadelphia, hounded hj^ a canal, and which was conveyed to the defendant, reserving the ground rent to George T. Lewis, for the arrears of which this suit was brought.

2, of Philadelphia County to review a judgment for plaintiff in an action for damages for breach of contract. The defendants were the manufacturers of certain material used and employed in the manufacture of merchant bar iron, called muck bars, and the plaintiff, being a dealer in. them, was desirous of procuring a quantity to be sold to a corporation in San Francisco to be used by it.

1, of Phila-. delphia County. The bill in this case was filed by Maria E. Miskey, administratrix of Jacob A. Miskey, deceased, to have a deed of trust by Jacob A. Miskey, to his father, Anthony Miskey, set aside on the ground of fraud. A decree was entered setting aside the deed of trust and ordering that respondents pay the costs.

<p>Error to the Common Pleas, No. 1, of Philadelphia County to review a judgment for defendants in an action of replevin.</p>

<p>Appeal from, a decree of the Orphans’ Court of Dauphin County rendered in partition proceedings.</p> <p>The questions involved in this appeal sufficiently appear in the opinion. ,</p>

4, of Philadelphia County to review a judgment for plaintiffs. A statement of the facts of the case appears in the following •opinion of the court below: Thayer, P. J.: The plaintiffs sued the defendant upon a number of coupons, representing the interest due on certain bonds issued by the May’s Landing & Egg Harbor City .Railroad Company in 1871, the payment of which interest, it was Alleged, had been guaranteed by the defendant.

1, of Philadelphia County to review a judgment for plaintiff in an action for damages. On May 4, 1882, a horse attached to a United States mail wagon, without a driver, ran up Chestnut street in the city of Philadelphia. When reaching the store of William L. Wilson the horse ran upon the sidewalk and broke a lot of terra cotta drain pipes which were lying upon the pavement in front of the store.

<p>Error to the Connnon Pleas, No. 2, of Philadelphia County.</p>

2, of Philadelphia Conuty to review a judgment entered for want of a sufficient affidavit of defense. Held: that such appearance was a waiver of service of process, and that the defendant thereby subjected himself to the jurisdiction. 2 Mich. 164; 7 Allen (Mass.) 151; 42 Colo. 439; 29 Eng. Law & Eq. 415.

Frank P. Moody, on October 27,1883, filed his petition in the •orphans’ court, setting forth that he had a judgment for $7,153 .against A. J. Bucknor, deceased, and praying that the administrator, Wm. PI. Bucknor, be required to file a petition to sell ■ certain real estate to pay this judgment.

<p>Error to the Common Pleas, No. 3, of Philadelphia County to review a judgment for defendant in an action for damages for personal injuries.</p>

3, of Philadelphia County. Richard Wistar died, having devised certain land to his son Richard, and certain land to each of his two daughters, the residue to be divided among all his children.

2, of Philadelphia County to review a judgment for defendant in an action for damages for obstructing a private way. This action was brought by Ivan Prowattain against the city of Philadelphia, to recover damages arising from the obstruction of a right of way which he claimed by necessity over land forming part of Eairmount park.

<p>From a decree of the Orphans’ Court of Philadelphia County.</p>

<p>From a decree of the Common Pleas, No. 2, of Philadelphia County, sitting in equity.</p>

'Julia Ready died March 5, 1883, intestate, and without issue, leaving as her next of kin a brother, Maurice Barry. At the audit of the administrator’s account Thomas Barry filed a claim to recover for boarding and nursing decedent from May 10, 1878, to March 5, 1883. Barry was a nephew of decedent, and lived in Philadelphia. Prior to May, 1878, Julia Ready had lived in Buffalo, but at that time she went to live with claimant.

Nicholas E. Thouron died December 24, 1866, leaving a will by which he devised all his real estate to trustees, with directions to let and demise the same, collect rents, pay charges, make repairs, etc., and divide the net income into two equal parts. Out of one of these parts the trustees were to pay to Margaret Thouron, wife of his son Elisha Henry Thouron, the sum of $1,000 during her natural life or widowhood.

<p>Error to the Common Pleas, No. 3, of Philadelphia County to review a judgment for plaintiff in an action for damages for personal injuries.</p>

1, of Philadelphia County to review a judgment for defendant. William J. Neill and S. R. Peale made a contract in February, 1865, for the sale by the former and the purchase by the latter of a tract of land. Peale, in consideration of the contract to sell, covenanted to pay the seller $33,500, $1,000 down, $5,000 on March 3, and the balance in thirty days with interest.

Writs of certiorari sur appeals from decrees of the Common Pleas of Crawford County, in equity, granting injunctions. In 1883 the authorities of the city of Meadville, by resolution, authorized the fire and water committee of the city to negotiate with electric lighting companies to furnish electric lights for lighting the streets and public buildings of the city.

Certiorari sur appeal from a decree of the Common Pleas of Payette County in equity. Tba bill in this case was filed by Robert Hogsett against William Beeson. It alleged that plaintiff and defendant had entered into a copartnership for the manufacture of iron; that large quantities of iron were manufactured and sold; and that the proceeds of the sales were received and retained by defendant; and that large profits had been made by the partnership.

<p>The language of § 8, art. 16, of the Constitution of 1874 embraces corporations existing at the time of its adoption. (Pennsylvania R. Co. v. Duncan, 111 Pa. 352, 5 Atl. 742, followed.)</p> <p>By accepting the additional privileges and powers conferred upon the Philadelphia & Reading Railroad Company since its original charter, according to the terms prescribed, that company has surrendered the inviolability of its charter to the discretion of the legislature.</p> <p>Cited in Pennsylvania R. Go. v. Marchant, 119 Pa. 556, 4 Am. St. Rep. 659, 13 Atl. 690; G-loninger v. Pittsburgh & C. R. Co. 139 Pa. 13, 28, 21 Atl. 211; Williamsport v. Williamsport Pass. R. Co. 3 Pa. Co. Ct. 39, 42; Philadelphia v. Philadelphia & R. R. Co. 7 Pa. Co. Ct. 390, 400.</p> <p>Note. — A railroad company is liable to abutting property owners on a Street on which its tracks are laid, although at grade, for the consequential injuries suffered by them. Pennsylvania, S. Valley R. Co. v. Walsh, 124 Pa. 544, 10 Am. St. Rep. 611, 17 Atl. 186; Pennsylvania, S. Valley R. Co. v. Ziemer, 124 Pa. 560, 17 Atl. 187.; Pennsylvania R. Co. v. Duncan, 129 Pa. 181, 132 U. S. 75, 33 L. ed. 267, 10 Sup. Ct. Rep. 34; Jones v. Erie & W. Valley R. Co. 151 Pa. 30, 17 L. R. A. 758, 31 Am St. Rep. 722, 25 Atl. 134.</p>

Pleas, No. 2, of Philadelphia County to review a judgment for plaintiff in an action upon a promissory note. This action was brought by George T. Gravenstine against “ William II. Brown and Joseph D. Conrow, trading as William H. Brown & Company, to recover the amount of a promissory note signed by them. To this action Conrow filed the following affidavit of defense.

1, of Philadelphia County .to review a judgment for plaintiff in an action for breach-’of contract. The facts of the case sufficiently appear in the opinion of the court. • . .

2, of Philadelphia County discharging a rule to open judgments. In July, 1880, Mrs. Henrietta Warren, the appellant, was the owner of a large number of houses, in the city of Philadelphia, against which were a large number of encumbrances.

These are appeals of Louis 0. Madeira aud Adaline L. Madeira, as next of kin, from a decree of the orphans’ court dismissing exceptions filed by them to the adjudication of the account of Olara N. Madeira, widow and administratrix of Walter 0. Madeira, deceased. Walter C. died June 26, 1882, leaving among other assets a policy of insurance upon his life, to the amount of $5,000.

On April 30, 1883,- John Boring was -arrested upon the charge' of assault with intent to kill: - He waived a hearing before the justice,'andgave bail, with Samuel Magie as surety, to- appear at the quarter sessions of Fayette county-and “not depart the court without leave.” Boring appeared át the ■ court and was -tried and convicted. Subsequently, but before sentence, he disappeared.

<p>The court of common, pleas of the county where libellant resides alone has jurisdiction of a libel for divorce.</p> <p>Cited in Austin v. Austin, 4 Pa. Co. Ct. 368; Ames v. Ames, 21 Pa. Co. Ct. 257, 258, 4 Lack. Legal News, 199; Gambe v. Gambe, 22 Pa. Co. Ct. 23, 25, 10 Lane. L. Rev. 79.</p> <p>Note. — A libellant may maintain proceedings for divorce in the county to which she has removed and taken up her permanent residence, after withdrawing from the residence of her husband, which was in a different county. Smith v. Smith, 11 Pa. Co. Ct. 465, 1 Pa. Dist. R. 550. A plea to the jurisdiction will not avail where the respondent has appeared and -answered without objection, and the case has been proceeded with to a rule for a final decree. Newbold’s Appeal, 2 W. N. C. 472, 8 Legal Gazette, 114. Nor where the suit had been at issue for two years, and was coming up for trial. Nagle v. Nagle, 3 Grant Cas. 155.</p>

Affirmed. Tbis action was brought by J. N. Sbanafelt as next friend of William E. Headley, against the Delaware County National Bank, to recover a sum of money that Headley had deposited with the bank. Headley was a minor, and the bank had been notified not to pay the money to him, by James M. Headley, his father.

The facts of the case appear in the charge to the jury given-in the court below, which was as follows: Charge by Futhey, J.: This is an action brought by the administrator of Joseph McOlees, against David McFarland. The defendant is a banker and money lender, residing in West Chester, and a part of his business is to receive moneys from persons and loan the same for them on securities agreed upon.

In July, 1853, Mary A. Brown, in contemplation of marriage with Bufus K. Love, placed $10,000 of her estate in trust, secure from any debts or liabilities of her intended husband. She married Mr. Love, who died soon afterward. She subsequently married ag:ain. Her second husband, John Hickman, died in. March, 1875, and she still remains his widow. She has two children living, one of full age and married and the other a minor.

There are but two questions raised by this appeal. They are raised upon exceptions to the account of Elizabeth M. Sloan and William Jones Sloan, executors of the last will and testament of Malachi W. Sloan, late of the township of Marple, Delaware county, as filed by Elizabeth M. Sloan. The first is a contest between Elizabeth M. Sloan, the widow and accountant, as just stated, and her step-son, William Jones Sloan, as to the right to the-sum of $3,134.75.

The facts of the case sufficiently appear in the charge to the jury given by the court below as follows: This action is brought by the plaintiff, Charles Zimmerman, Jr., against Conemaugh township to recover damages sustained by him through an accident which occurred to his team, in the hands of certain young gentlemen to whom he had bailed or loaned it, on a bridge on the public highway of that township, and which accident, it is alleged, was caused by an omission or…

Tbe point upon wbicb tbis case was decided appears in >the opinion. That a bill of sale, absolute on its face, may be shown by parol evidence to have been intended as a security is abundantly illustrated by the well-established law in Pennsylvania, that a deed absolute upon its face may be shown by parol evidence to have been intended as a security or mortgage, and it has' been so held as to a bill of sale in Connelly v. Walker, 45 Pa. 452.

<p>Appeal from a decree of the Common Pleas, No. 4, of Philadelphia County refusing to open a judgment.</p> <p>In September, 1880, one James McGeogh, a real-estate agent in the city of Philadelphia, had the premises at the southeast corner of Germantown avenue and Huntingdon street in said city for rent. The property was then idle, and had been idle for a long time prior thereto. The appellant, Michael Schoenhut, agreed with Mr. McGeogh to rent the premises at $25 per month, and, after one or two interviews about the place with Mr. McGeogh or fus assistant, he paid the first month’s rent, $25, was handed the keys, and moved into the possession and occupancy of the place, where he has ever since been, paying his rent and receiving receipts therefor until October, 1884, when the differences arose that culminated in this litigation.</p> <p>On or about June 13, 1884, the appellant received a notice dated June 13, 1884, signed Anna Nolan and John 0. Nolan, executors of estate of Patrick Nolan, deceased, per J. McGeogh, directed to Edward M. Schoenhut and requiring him to surrender possession at the end of his term, September 23, 1884. He did not so surrender, and on November 19, 1884, an amicable action in ejectment under the alleged lease under which Schoenhut held was entered in the court below, an affidavit, agreement, copy of alleged lease, etc., being filed in said court.</p> <p>Upon the proceedings in the court below, a writ of habere facias possessionem and fi. fa. for costs issued, and the sheriff undertook to execute the same, upon which the appellant filed an affidavit and procured from the court a rule to show cause why the writs of habere facias possessionem and fieri facias should not be set aside, judgment opened and defendant let into a defense, on the ground that he had not had notice of the proceedings, all proceedings to stay in the meanwhile.</p> <p>The depositions on behalf of the appellant, the defendant below7, showed that the appellant had never signed the lease, of which the copy filed purported to be a copy; and, in point of fact, that he had never signed any written lease for the premises.</p> <p>The appellant offered in evidence, in support of his rule, Eule 11 of the rules of the court of common pleas, No. 4, which reads as follows:</p> <p>“Attorneys holding commissions as notaries public, or who are otherwise authorized to administer oaths, shall not take or attest the affidavit of any party represented by them, and all affidavits taken in violation of this rule shall be treated as null.”</p> <p>The depositions showed that James E. Gorman, Esq., was attorney for plaintiff, and, as such, prepared, had executed and filed in court all papers in this case, although, at his request, Graham Calvert signed the agreement for the amicable action and the praecipe for writs, and appeared nominally as attorney for the plaintiff, without actually being attorney for any of the parties in the case. The oath taken to the affidavit filed, without which affidavit the proceedings could not have been begun or sustained, was administered by the attorney for the plaintiff, James E. Graham.</p> <p>The court below discharged the rule taken by the defendant below to set aside the writs of habere facias possessionem and fieri facias, and open judgment. Erom which action, order, or decree this appeal was taken.</p>

In 1878, John H. Eogel made an assignment of all his property for the benefit of his creditors. His wife at the time held a judgment against him for $7,600, which was a lien on his real estate. The assignees obtained an order of sale from the court of common pleas of Lehigh county to sell his real estate. The property was duly advertised to he sold on December 4, 1879.

Andrew Peter died some time in the year 1883, leaving to survive him a widow and six children, having first made his last will, dated September 7, 1883.

<p>Appeal from a decree of tbe Orphans’ Court of Lehigb County disallowing a claim against a decedent’s estate.</p> <p>To tbe auditor appointed to audit, settle, and distribute tbe estate of John Koch, deceased, a claim was presented by the heirs to Daniel A. Guth, for royalty for iron ore on a certain lease containing covenants running with tbe land, wherein the testator was possessed of one half of the undivided interest with Stephen Balliet, deceased. This claim was based upon the allegation that these mines were not worked since the 1st day of April, 1872, in accordance with the covenants contained in the lease, and for damages arising from the breach of the said covenant.</p> <p>On August 23, 1842, Daniel A. Guth made an agreement in writing under seal with Christian Pretz and others in which he agreed with them, their heirs, administrators, and assigns, to furnish and allow them the exclusive right and privilege to dig, mine and take away all iron ore and all other minerals which are or may be found in oí upon the land described in the agreement. In consideration whereof, the parties of the second part covenanted and agreed “to deliver to the said party of the first part, or to his heirs or assigns, the one-sixth part of all the iron ore and of all other ores and minerals which they . . . may mine or dig or cause to be mined or dug, in or upon said land.”</p> <p>The grantees in said articles of agreement respectively assigned and transferred their interest in it to John Koch, Sr., and Stephen Balliet.</p> <p>On March 20, 1852, Stephen Balliet and John Koch, the transferees of the lease, entered into an agreement with the Le-high Crane Iron Company by which they granted to that company, for the term of twenty years, from April 1, 1852, the exclusive right to all the iron ore contained in the tract of land covered by said lease, in connection with the ore in another adjacent tract of land which had been leased from Jonathan Guth, and to which tract Koch and Balliet afterwards acquired title.</p> <p>The Lehigh Crane Iron Company took possession of these two tracts of land, and continued to operate the mines until the 1st day of April, 1812, when their lease expired.</p> <p>Before the expiration of the agreement with the Lehigh Crane Iron Company, John Koch, the testator, and Dr. L. B. Balliet, acting as the agent for the heirs of Stephen Balliet, who had died, made diligent efforts to extend their agreement with the Lehigh Crane Iron Company so far as the same applied to the tract of land owned by the Guth heirs. The Crane Iron Company refused to take an extension on the Guth tract alone, without the Koch and Balliet tract. During the same time Koch and Balliet also made diligent efforts to sell their farm in connection with the lease on the land of the Guth heirs.</p> <p>On April 11,1813, John Koch, the testator, and L: B. Balliet, attorney for the heirs of Stephen Balliet, deceased, entered into an agreement to lease the land to the Bethlehem Iron Company which subsequently surrendered its lease.</p> <p>These ore mines were then leased to Benjamin H. Weaver, who commenced working them in 1814. Since then both the Guth tract and the Koch and Balliet tract have been worked properly and satisfactorily, taking into consideration the ’demand for ore, the condition of the iron trade, and the facilities for mining on the place.</p> <p>The following is the opinion of the auditor:</p> <p>The only matter of contest before the auditor arose out of the claim presented by the Guth heirs. Two questions are involved in the consideration of this claim: First, Has the auditor jurisdiction of this matter ? Second, If so, should the claim be allowed, and how much ?</p> <p>The claim is one of unliquidated damages, growing out of the alleged breach of contract In the case of Fuller’s Appeal, 98' Pa. 534, the supreme court held, reversing the court below, that “the orphans’ court exceeded its jurisdiction in attempting to-try and dispose of a question involving, at most, only the breach of a contract;” and that the proper remedy was an action at law brought by the representatives of Beatly’s estate for the recovery of the damages resulting from a breach of the contract.</p> <p>But by a careful examination of that case, it will be seen that the real question raised in it was only as to an agreement by Fuller to pay the money due on his contract in a particular manner; that is to say, by the payment of the mortgage which Beatly executed in order to raise the money paid to Fuller. It rules, therefore, only, what has often been decided, that the orphans’’ court is not the proper forum to try questions arising upon contract when they are not connected with the distribution of estates.</p> <p>In Bull’s Appeal, 24 Pa. 288, the court says: “In Kittera’s Estate, 17 Pa. 422, it was shown that, after a contest between the legislature and the judiciary, the former had at last succeeded in establishing the jurisdiction of the orphans’ court to appoint one or more auditors to make distribution of estates in the hands of executors or administrators, to and among the persons entitled to the same. These general terms embrace creditors, as well as heirs, next of kin and legatees. The right of each to be heard in support of his claim, and in opposition to-every claimant who interferes with it, is necessarily involved in the right to demand payment out of the fund. The power to-decide all questions necessary to a proper distribution of the-fund follows the power of distribution, and vests in the orphans’’ court as a necessary incident to the jurisdiction.”</p> <p>In Whiteside v. Whiteside, 20 Pa. 474, Chief Justice Black: says: “If there be anything besides death which is not to be doubted, it is that the orphans’ court alone has authority to ascertain the amount of a decedent’s property and order its distribution among those entitled to it” See also Dundas’s Appeal, 13 Pa. 479, and cases there cited.</p> <p>The orphans’ court has power, in the distribution of a decedents estate, to allow a claim for damages suffered by reason of the deceit practised upon the claimant by the decedent. Machette’s Estate, 8 W. N. C. 201.</p> <p>And the pendency of an action at common law for the claim does not oust the jurisdiction of the orphans’ court. The claimant must present his claim in the orphans’ court, or be debarred from the fund. Hammett’s Appeal, 3 W. N. C. 416; Schenck’s Estate, 4 W. N. C. 511.</p> <p>The auditor, therefore, has jurisdiction and must pass upon the claim. Are the claimants entitled to recovery; and if so, how much ? is the next question. The provisions of the contract between the parties and all the facts essential to the determination of this question are contained in the auditor’s findings, and will not be repeated at length here.</p> <p>The first contract made in 1842, between Daniél A. Guth and O. Pretz and others, to the respective rights of which the present contestants have succeeded, was made at a time when mining in this community was in its infancy, and when the machinery and appliances for such operations were much more simple and inferior to those in use in 1812 and thereafter. What the demand for iron ore was at that time does not appear.</p> <p>It is to be presumed that the rbining carried on before 1852 by 0. Pretz and others, under the name of the Guth Mining Company, and by the Lehigh Crane Iron Company from 1852 to 1812, was satisfactory to the owners of the Guth tract, because no damages are claimed on account of any default before 1812. Whatever default, if any, has occurred since that time.</p> <p>Happily we have the aid of the opinion of the supreme court as to the light in which this contract must be viewed and its terms interpreted.</p> <p>In Koch’s Appeal, 93 Pa. 441, that court says: “While the rights granted are without limit as to time, and the agreement contains no express covenant as to how the mines shall be worked, or that any specified amount of ore shall be taken out, it does not follow that the appellants were at liberty to operate the mines or not, as they saw fit. It was evidently the intention of the parties that they should be worked with reasonable diligence, and that would depend largely on the circumstances. The quantity and quality of the ore, and the demand that existed from time to time, would necessarily enter more or less into the question of due diligence. If the ore proved to be abundant and of good quality, and the demand was such as to justify the vigorous prosecution of the work, the spirit of the agreement manifestly required that it should be so worked.”</p> <p>Reasonable diligence, according to the circumstances, then, is the measure of assiduity with which his mine was and is to be operated.</p> <p>The lessees of the mine had a right, under the agreement, to cause their parts of its duties to be done by others. Several years before the expiration of their agreement with the Lehigh Crane Iron Company, the lessees made diligent efforts to sell their farm and the Guth lease to the Lehigh Crane Iron Company, the Allentown Iron Company, and to other parties, who were amply provided with capital and other facilities to operate the mine to its full capacity.</p> <p>When they did not succeed in selling, they made efforts to lease the Guth mine alone to the Lehigh Crane Iron Company from 1872 on, but Mr. John Thomas, the president of the company, refused to take it disconnected from the Koch & Balliet tract. Finally, after much effort, they entered into an agreement with the Bethlehem Iron Company, by which the latter agreed to operate the mines on both the Guth and Koch & Balliet'tracts. This agreement was dated April 11, 1873, and was to continue in force for twenty years. Prior to that on March 3, 1873, the Guth heirs had filed their bill in equity against Koch & Balliet’s executors and legatees, praying for a decree that the owners of the lease be compelled, either to operate the mine, or, in default of their compliance, to surrender, yield up, and cancel the lease. And when., shortly after the date of their agreement the Bethlehem Iron Company sent Samuel Adams, their agent, to the mines for the purpose of locating the place for the erection of their machinery, in order to carry out their agreement and operate the mine, Ephraim Guth, one of the claimants, told him that they did not acknowledge that Koch & Balliet had a lease; and that, whether they gained or lost under the equity proceedings. Mr. Adams reported this fact to Alfred Hunt, the president of the Bethlehem Iron Company, and advised him to surrender their agreement, which was done.</p> <p>Mr. Hunt testifies that they did not take possession of this property and mine it, for the reason that they understood that doing so would probably involve a lawsuit.</p> <p>Upon the cancelation of the agreement with the Bethlehem Iron Company, the owners of the lease made an arrangement with Benjamin H. Weaver, who commenced the operation of the mine in the fall of 1874, and has continued to operate the same to this time. At first the Guth heirs did not remove their one sixth of the ore from the mouth of thq pit, where he placed it for them.</p> <p>From 1873 to 1879 the iron business was in a very depressed condition, and there was very little demand for iron ore. In relation to the continuous operations of the mine at its full capacity after 1874, Mr. Weaver testifies that “it was not in the extraordinary expense of mining; the difficulty arose from want of ready sales of ore, or whether the ore mined could be at a profit at the market price.”</p> <p>During the twenty years from 1852 to 1872, large quantities of ore were taken from the Guth tract, while but a small quantity W'as taken from the Koch & Balliet tract During the same period very large quantities of dirt, rubbish, and mud from the Guth tract were deposited on the Koch & Balliet tract, so that Mr. Weaver, who is now operating the two mines, is compelled to remove, in some places, 60 feet of the dirt, rubbish, and hardened mud formerly deposited there.</p> <p>In view of all these circumstances, and remembering the familiar maxims, that equality is equity,- and that he that demands equity must do equity, the auditor cannot say that these lessees have been negligent in the performance of their part of the agreement. On the contrary, they have been operating the mine with reasonable diligence under the circumstances. The claim is, therefore, disallowed, and the amount of it is not necessary to be considered.</p> <p>From a decree in conformity with this opinion the claimants appealed.</p> <p>The lessee must work a mine under the lease that he holds. Watson v. O’Hern, 6 Watts, 362.</p> <p>In. Brainerd V. Arnold, 27 Conn. 617, it was held that the lessees were not at liberty to work the qnarry or not as they pleased, but were bound to improve it in a reasonable manner during the term of the lease. The written agreement is a sale of all the iron ore, rather than a lease of the land, with a continuing consideration, arising daily to pay one sixth of all the ore mined, and to be delivered at the mouth of the pit in good merchantable condition.</p> <p>Johnston v. Cowan, 59 Pa. 275, rules that it is a sale, and not a lease. In that case the writing was construed to be an agreement to pay for the privilege of taking clay, and not a lease to dig it. The undertaking arises upon an implied covenant, to work continuously, with reasonable diligence, until the ore shall be exhausted, or until a surrender of the premises shall be made.</p> <p>Justice Stérrett, in Koch’s Appeal, 93 Pa. 441, says: It may be, according to the spirit and letter of the contract there is an implied warranty to work. They were not at liberty to operate the mines or not as they saw fit. It was evidently the intention of the parties that the mines should be worked with reasonable diligence, depending largely upon the circumstances.</p> <p>M’Intyre v. Belcher, 4 C. B. N. S. 654, rules that, where a physician purchases a practice and agrees to pay one fourth of the yearly receipts to his vendor, his failure to practise will render him liable to damages. See also Watson v. O’TIem, 6 Watts, 365; Brainerd v. Arnold, 27 Conn. 617; Sharp v. Wright, 28 Beav. 150; Powell v. Burroughs, 54 Pa. 329; Walker v. Tucker, 70 111. 527; Morrison’s Mining Dig. p. 196, pi. 116.</p> <p>McDowell v. Hendrix, 67 Ind. 513, rules that, while the defendant retains possession, a failure to obtain coal sufficient to pay the minimum rent will not be a defense to an action for rent.</p> <p>In Mellers v. Devonshire, 16 Beav. 252, 22 L. J. Oh. N. S. 310, it is ruled that inevitable causes occurring to prevent working will not relieve from the payment of rent. Nor will want of profits, and where the coal produced is not worth the expense of working. See also Bidgway v. Sneyd, 1 Kay, 627.</p> <p>Nor will a ruinous expense of working, resulting from accidents, or defects in a mine nearly exhausted. Phillips v. Jones, 9 Sim. 519.</p> <p>Nor will “unworkability to profit” afford ground to reduce or throw up a lease. Gowan v. Christie, L. R. 2 H. L. Sc. App-. Cas. 2S4, also cited in Morrison’s Mining Digest, 197, pi. 123.</p> <p>Nor will insufficient quantity or the quality of salt water, rendering it unprofitable to operate the salt works. Clark v. Babcock, 23 Mich. 164.</p> <p>Nor where an area of the least value remains to produce ore. Murdock v. Fullerton, 7 Shaw & D. Sess. Oas. 404. See also Jervis v. Tompkinson, 1 Hurlst. & N. 195, 26 L. J. Exeh. N. S. 41; Jones v. Reynolds, 7 Oar. & P. 335; Schuylkill &D. Improv. & R. Co. v. Sehmoele, 57 Pa. 271; Harlan v. Lehigh Coal & Nav. Co. 35 Pa. 287; Bute v. Thompson, 13 Mees. & W. 487; McDowell v. Hendrix, 67 Ind. 513; Gilmore v. Ontario Iron Co. 86 N. T. 455; Scioto Fire Brick Co. v.- Pond, 38 Ohio St. ■65.</p> <p>Hnforeseen hardships or inability to work with' profit will not suspend rent, as where premises become uninhabitable. Surplice v. Farnsworth, 7 Mann. & G. 576; Murray v. Mace, Ir. Rep. 8 C. L. 396; Izon v. Gorton, 5 Bing. N. C. 501; Gregg v. Coates, 23 Beav. 33; Kline v. Jacobs, 68 Pa. 57; Magaw v. Lambert, 3 Pa. St. 444; Bussman v. Ganster, 72 Pa. 285.</p> <p>When a party enters into an ■agreement which can only take effect by the continuance of a ■certain existing state of circumstances there ¿s an implied engagement on his part that he will not, of his own motion, do anything to put an end to that state of circumstances, under which alone the agreement can be operative. 1 Chitty, Contr. ed. 1874, 89; 2 Parsons, Contr. 676; Broom, Legal Maxims, 214; Stirling v. Maitland, 5 Best & S. 840; Robson v. Drummond, 2 Barn. & Ad. 303.</p> <p>Where a party to a contract, by his acts or default, renders the performance of the contract impossible, or, if not wholly impossible, yet imposes such conditions upon its execution as to render its performance practically impossible, the other party -to the contract may treat the same as rescinded. Seipel v. International Life Ins. & T. Co. 84 Pa. 47.</p>

Mary Hess died testate, leaving to survive her, three children, J ames Hess, Juliann Haines, intermarried with Lucas Haines, and Emeline Hertz, widows James Hess was her executor, having died without filing his account Annetta T. and Robt. J. Hess, his administrators, filed their account. Levi Schmoyer was appointed auditor, to audit, resettle, and make distribution.

John I. Thompson, the defendant in error and plaintiff below, brought an action of trespass December 29, 1877, against Samuel Christ, the plaintiff in error, to recover treble damages for cutting and removing timber trees from two tracts of land, title admitted to be in defendant in error, in the warranty names of John Louden and Thomas Grant, respectively. The tracts are members of a block of thirteen surveys, the warrants for which are dated May 16, 1793.

Louisa Kohler became the owner of a lot of ground in the village of Whitehall, by virtue of a sheriff’s sale under a judgment recovered upon a bond, secured by a mortgage executed by Stephen Nleppinger. The question in the court below was as to whether the description in that mortgage began at a point or stone in the fence line on the public road, or at a stone in the middle of the public road.

This was an action in debt upon policies of insurance. The defendant in error procured three policies of insurance from the plaintiff in error. All the policies were annual ones, and were renewed. The policies were procured through D. M. Johnson, Esq., who held at that time a commission from the Union Insurance Company.

<p>City councils have the right to impose conditions in giving street railway •companies authority to occupy the streets of the city.</p> <p>The Erankford & Southwark Philadelphia City Passenger Railway Company, having filed a bond to comply with the provisions of the ordinances of the city of Philadelphia, is' bound to pave and keep in repair all the streets upon which its tracks are laid.</p> <p>Note. — Municipal authorities may impose conditions upon a street railway company when consent is given to the occupancy of the streets. People’s Pass. R. Co. v. Union Pass. R. Co. 3 Pa. Dist. R. 717, 15 Pa. Co. Ct. 498, 35 W. N. C. 311. And, where the ordinance is accepted, the company becomes subject to all the requirements of the ordinance. Allegheny v. Millville, E. & S. Street R. Co. 159 Pa. 41, 28 Atl. 202; Plymouth Twp. v. Chestnut Hill & N. R. Co. 168 Pa. 181, 4 Pa. Dist. R. 8, 32 Atl. 19. And it is no defense to a proceeding to enforce these duties that great hardship would be imposed (Ashland v. Ashland & C. Electric R. Co. 27 Pa. Co. Ct. 346) ; or that the condition imposed by the municipality is ultra vires (Car-lisle v. Cumberland Valley Electric Pass. R. Co. 22 Pa. Co. Ct. 221, 8 Pa. Dist. R. 497).</p> <p>Where the condition requires the paving or repairing of streets, the municipality may recover the cost thereof from the railway company. Philadelphia v. Second & Third Streets Pass. R. Co. 13 Pa. Co. Ct. 580, 2 Pa. Dist. R. 705. But, if the obligation to pa,ve or repair is to be preceded by notice from the municipality, such must be given before liability attaches. Philadelphia v. Hestonville, M. & E. R. Co. 203 Pa. 38, 52 Atl. 184. And the same rule as to notice is held to apply where the street railway company agrees to indemnify the municipality against loss for injury for defects in streets, no notice of the defect having been given. Gilberton v. Schuylkill Traction Co. 22 Pa. Super. Ct. 279.</p> <p>See also editorial note to Galveston & W. R. Co. v. Galveston, 36 L. R. A. 33, presenting in full the authorities as to municipal power to impose conditions when giving assent to street railway in street.</p>

<p>A verba] contract, by which plaintiff agreed to give a piece of land to defendant in consideration that defendant would erect a freight station upon it and give plaintiff a yearly pass over its railroad, construed and, — Held,</p> <p>That in an action for breach of the contract because of the failure to ■erect the freight station, the doctrine concerning the admission of parol evidence to vary a written instrument was inapplicable.</p> <p>That the measure of damages to be recovered by plaintiff was the exact .injury indicted upon him by the failure to erect the station.</p>