Volume 1 — Walker's Pennsylvania Reports (1853–1887)

135 January Term, 1877. On October 10th, 1873, Benjamin Bannan, now deceased, a widower with two adult daughters, made an ante-nuptial agreement with Anna M. Gallagher, by which he, Benjamin Bannan, agreed that said Anna M. Gallagher should receive from his estate after his death the sum of one thousand dollars per annum, that five thousand dollars should be paid to her appointee by will, and that her son by former marriage should receive the interest of $5,000 until he was…

<p>X. An ante-nuptial agreement provided that a certain sum should be paid annually during the life of the wife in lieu of dower. The will gave the executor unlimited power of sale and investment. Held not to be such a violation of the ante-nuptial agreement as would justify the wife in rescinding it.</p> <p>2. The wife had the rights of á creditor of the estate against improper investments of the executor.</p> <p>3. The rights of creditors are superior to the right of the testator to squander his estate by conferring improper powers on the executor.</p>

<p>Error to Common Pleas No. 4 of Philadelphia county. The record was amended December 6, 1878.</p>

Appeal of Joseph C. Bright from Common Pleas of Schuylkill county, No. 280 January Term, 1878. On August 19th, 1867, James C. Oliver acquired a coal lease. On Dec. 23, 1868, J. C. .Oliver assigned j- of said lease to David Oliver and formed.a partnership. On February 13th, 1871, J. C. Oliver assigned j- of said leasehold to O. E. Moore, who became a partner.

On April 7, 1868, P. Laws, 738, the Legislature passed an act to lay out a State road in the counties oi Schuylkill and Dauphin, at the -.expense ;of persons occupying- lands- contiguous-to the road; the Commissioners were directed in place- of supervisors to take charge of the opening and construction of the road and to l’eceive the road, tax from -the township ; collectors and .county treasurer and issue certificates of indedtedness to persons-advancing money towards…

72, July Term, 1863. The facts appear in the opinion of the Court. Pounder offered in evidence the record of another interpleader suit about the same property, but it was rejected.

334, January Term, 1860. Scire facias sur mortgage.' Plea nil debet and payment with leave. May 5, 1858: Yerdict for plaintiff for $600 principal and $207.60 interest, fines and dues. Same day the 'Court grant a rule on plaintiff to show cause why judgment should not be entered for defendant non obstante veredicto. Defendant took no exceptions to evidence or charge of the Court, but filed the following reasons inter alia why plaintiff was not entitled to recover.

Appeals from the decree of the Court of Common Pleas of Schuylkill County distributing the money arising from the sale of the property of George Mason and George H. James. No. 12 January Term, 1862. The fund arises from the sale of Mason and James’ property under the following executions: The Farmers’ Bank of Schuylkill County vs. Geo. Mason and Geo. H. James, Fi, Fa., No. 181 March Term, 1860, debt $8,000 ; James H. McKee to use ot Henry Saylor vs. Geo. Mason, Fi.

242, October Term, 1874. Snyder built an oil tank for defendant and filed a statement of his claim, which, however, was not verified by affidavit. Crothers took a rule to quash the lion for this reason. The rule was made absolute and Snyder took this writ of error. A. M. Brown and Thos. S. Wilson, Esqs., for plaintiff argued that the provision of the act is merely directory. Donahoo vs. Scott, 2 Jones 45 ; Calhoun vs. Mahon, 2 Harris 56 ; Lybrandtvs.

No. 101 October and November Term, 1876. Error to Common Pleas, No. 1, of Allegheny County. This was an action of assumpsit by the Mount Lebanon Cemetery Company vs. William Espy. Plaintiff was allowed to prove by parol that it was the corporation intended in the agreement.

The facts of the-case appear in the charge to the jury by Junkin, P. J. B. E. Crouse, the plaintiff, brings this action of replevin against John McManigle, to recover a horse, which had been detained by the defendant, upon the ground that Crouse, the owner of the horse, owed him a bill for lodging, boarding, feed, &c., he, the defendant, being an innkeeper in Perrysville, Juniata County.

<p>Certiorari to Quarter Sessions of Huntingdon County.</p>

58, May Term, 1878. George M. Brisbin brought an action of assumpsit against the Pennsylvania Railroad Company for rent of a warehouse used for storing freight. There, was no express contract to rent the warehouse. Brisbin had been appointed second class freight agent of the company under form No. 43 which is as follows: Form No. 43. Pennsylvania Railroad Company.

92 July Term 1880. On May 22, 1877, Isaac W. Ranck &• Co. obtained a judgment against James H. Beck & Bro. for $1,161.78. Execution was issued and levied on Sept. 19, 1878, on personal property. An application to open the judgment was made on application of defendants on September 23, 1878,' on the ground that it had been all paid except $100. A rule was granted, but was discharged on November 24, 1879.

. Appeal of Abraham Bartolet from the decree of the Orphans’ Court of Schuylkill County, Number 282, January Term, 1878. ' Daniel Bartolet died testate in November, 1864, leaving' a widow and seventeen children, the youngest of which became ot ■age October 28, 1872. lie directed his real estate should be kept together until his youngest child was twenty-one. He appointed nine of his sons as executors, but- Abraham Bartolet, theappellan^ was the sole acting executor.

No. 228 October and November Term, 1871. August 5th, 1871, Bill filed at Nisi Prius by Philadelphia and Erie R. R. Co. vs. Catawissa R. R. Co. to restrain defendants crossing plaintiffs railroad. Injunction issued restraining defendants from crossing plaintiff’s railroad, except two construction trains once each way a day at 7 A. M. and 7 P. M., under the Act of June 19th, 1871, P. Laws, 1361. Sept. 29th, 1871. Catawissa R. R. Co. appealed.

367, January Term, 1871. This was a feigned issue to try the question of property in seven mules levied on under execution by Seth H. Yocum, Administrator of Asa Yarnell, against Solomon Yarnell and claimed by Joel Kehler. -The facts are as follow: Joel Kehler having obtained a judgment issued an execution against Solomon Yarnell on April 15,1869: On May 8,1869, and Kehler and Yarnell entered into an agreement, the material of which is as follows : “That Solomon Yarnell for…

This was an action of trespass for damages for killing John C. Smith, at Dunning’s station, Penna., on February 26th, 1867. Smith had unhitched and driven a pair of mules to a barn and then returned to a tavern for his dinner, which was on the opposite side side of the railroad. After dinner he went for his mules and drove them back towards the tavern to hitch up. While crossing the track he was struck by a locomotive, which was running about fifteen miles an hour.

1, of Allegheny County, No. 195 October and November Term, 1876. This was an action on a note brought by J. J. Herman in trust for the Workingman’s Saving Bank af Allegheny City, against John Huckestein on a note for $1,600 made by John P. Wacker and endorsed by Huckestein as an accommodation endorser and “protest waived.” After the maturity of this note it appeared from the books of the bank that there was a balance of $448 due to Wacker.

This was an action of assumpsit brought by Stidfole against Henry L. Cake as endorser of a note.

In equity. No. 180, January Term, 1870. The Locust Mountain Coal Company leased certain premises to the Mammoth Vein Coal Company on October 3,1866, which lease afterwards became vested in Goddard & Draper.

69, July Term, 1881. The facts of the case appear in the charge of the Court delivered May 18, 1881, by Walker, J.: These are three feigned issues directed by the Court under the Act of Assembly to determine the title and ownership to certain personal property levied upon by the sheriff of Schuylkill County, in the three executions, as the goods and chatties of S. Holmes and Frederick W. Geer, trading as S. Holmes & Co. From the evidence,' it appears that these defendants…

52, March Term, 1855. Scire facias sur Mechanics Lien for 201,000 bricks. Jacob Geiss pleads not guilty. Henry Geiss, terre-tenant, pleads that claim was not filed within six months and is not a lien. 200.000 bricks were delivered on or before October 17,1845,' and 1.000 on November 24,1845. The lien was filed May 12,1846. Henry Geiss showed deed from Jacob Geiss, dated November 26, 1849. The contract for the bricks was between Jacob Geiss and Henry Rapp.

This was an action brought by Thomas Zell and B. L. Eshle- - man against H. D. Benjamin to recover one-fourth of the profits-of the sale of a farm which Eshleman and. Zell procured to be sold to Benjamin under an agreement that they were to have one-fourth of the profits. The farm was bought in July, 1867, for $18,000, and sold on September 15, 1870, for $25,200, leaving a profit of $7,200. Narr. filed May 13, 1872, and rule to arbitrate taken by plaintiffs May 29, 1872.

3 of Philadelphia County. J udgment was entered in the Court below on bond and warrant of attorney given by David Hamaker, secured by mortgage given on and to secure part of the purchase money of certain land described as follows : “All that certain tract, piece or parcel of land, situate,- lying and being in the township of Belfast, in the county of Fulton and State of Pennsylvania aforesaid, surveyed to McHorton Moore, containing, according to said survey, 810 acres (be…

No. 252, January Term, 1878. The Mountain City Banking Compauy discounted promissory notes, which J. C. Yungdeisch had endorsed amounting to about $3,900. Subsequently Yungdeisch made an assignment for the benefit of creditors and an auditor was appointed to distribute the proceeds of the sale of the estate of the assignor among his creditors.

<p>Appeal from Common Pleas of Schuylkill County. No. 252, January Term, 1878.</p> <p>The Mountain City Banking Compauy discounted promissory notes, which J. C. Yungdeisch had endorsed amounting to about $3,900.</p> <p>Subsequently Yungdeisch made an assignment for the benefit of creditors and an auditor was appointed to distribute the proceeds of the sale of the estate of the assignor among his creditors. Yungfieiseh himself, as well as several creditors, objected to the participation by the Mountain City Banking Company in the distribution, because it was claimed that that corporation was created as an insurance company only, did not possess the discounting privilege, had not given the six months notice required by the constitution upon the incorporation of a bank and was not in fact a bank and could not recover upon negotiable paper discounted in the course of such illegal business.</p> <p>The Mountain City Banking Company was incorporated by Act approved 8th April, 1870, (P. L. 1051) as the Pennsylvania Insurance Company of Pottsville, “with all the rights and privileges and to be subject to all the restrictions in the Act, entitled ‘An Act to incorporate the Allentown Fire Insurance and Trust Company, approved 4th May, 1869.’”</p> <p>This latter Act (P. L. 1253) creating the Allentown Fire Insurance and Trust Company, provided that it was “to be organized and managed according to the provisions of an Act lor the incorporation of insurance companies, approved 2d April, 1856, and the supplements, except so far as the same is altered, changed or provided for by this act; and shall be limited to risks designated in the first clause of the seventh section of said act, with the right to transact fire insurance business on the mutual principle in connection with the capital stock as aforesaid.”</p> <p>Section 3 of that act gave the corporation power to make insurance contracts as therein specified.</p> <p>Section 4 provided “that it shall be lawful for said company to invest its capital, premiums and profits on real or personal security in‘bonds, notes, mortgages, ground rent, judgments, stocks and loans of the U. S. and Pennsylvania * * * and in other good securities.”</p> <p>Other sections authorized the corporation to act as executor and trustee, but no power was expressly granted to receive deposits, discount commercial paper, issue bank bills or act as a bank.</p> <p>The insurance Act of 1856 referred to in the last mentioned act in section 8, provided that “any company incorporated under the act shall not have or exercise the powers of savings or discount institutions,” and the supplement of 1st May, 1857, provided that any company so organized shall not “invest or employ their capital stock or other money in the purchase or discount of, or advance upon promissory notes, bills of exchange or other negotiable paper.”</p> <p>A supplement to the act incorporating the Penna. Ins. Co. of of Pottsville, approved 4th April, 1862, (P. L. 963) changed its name to the Mountain City Banking Company, provided that “all insurance privileges of said company be and the same are hereby repealed, reserving to said company the right to receive deposits and to invest the same agreeably to the provisions of said act, and all the trust and other privileges thereunto belonging.”</p> <p>The evidence taken before the auditor, while it did not clearly establish the fact, inferentially showed that the Mountain City Banking Company did a general banking business and that the notes of Yungfleisch were discounted in that business. Evidence was offered to show that the six months’ notice required by the constitution upon the incorporation of banks was not given at the incorporation of the Mountain City Banking Company. The auditor refused to receive it, holding that the agreement in writing of Yungfleisch, made subsequent to the maturity of the discounted paper, in which he agreed to pay the amount represented by the notes, and the sworn testimony of Yungfleisclr admitting the banking company’s claim to be correct, “does away with the necessity of the corporation proving any legal existence.” He also held : “As to the question of the validity of the bank’s charter and its privileges, the auditor not only thinks he has no authority to take up any collateral question, as he claims such inquiry would be, but he also thinks that the question was settled by the admission of Yungfleisch above referred to. And the auditor awarded to the Mountain City Banking Company its proportionate share of the funds in the hands of the assignee.</p> <p>Yungfleisch and six of his creditors then excepted to the report of the auditor, but the Court overruled the exceptions and confirmed the report on January 28, 1878. Yungfleisch- and the six creditors then appealed and assigned the following errors:</p> <p>1. The Court erred in confirming the report and distribution of the auditor.</p> <p>2. In not sustaining the exceptions made to the report of the auditor.</p> <p>3. In allowing the claim of the Mountain City Banking Company.</p> <p>4. In sustaining the decision of the auditor refusing to admit evidence offered by appellant to show that the Mountain City Banking Company was not a corporation possessed of any banking privileges.</p>

In Equity. Nos. 167 and 168, January Term, 1864. Michael Murphy filed a bill in equity on March 14, 1857, against Andrew Russell and Burd Patterson, alleging that they had purchased personal property of Murphy at sheriff’s sale in 1.841, for 170.50, under an agreement that they would hold it for Murphy and restore it on being paid the purchase money with interest. That Murphy paid Russell $286.01 and $32.50, or $318.51 in all, to pay this and another claim.

1 of Allegheny County. No. 260 October and November Term, 1875. The facts of the case are as follows: Jacob Orrison, the plaintiff, was employed as engineer upon a through passenger train on the Pittsburg & Erie Railway, operated by the Pennsylvania Company. On the 4th day of November, 1873, he was running a train from Erie to Pittsburg, and in passing Sharpsville the train was thrown from the track.

the Court of Quarter Sessions of Schuylkill County. No. 168 January Term, 1867. On January 10, 1865, a petition was presented to the Court asking for the appointment of viewers to erect a new township out of Mahanoy and Rush townships. Viewers were appointed, who reported adversely to the petition and the report was confirmed by the Court.

No. 13 October and November Térm, 1874. Defendants in error having filed a mechanics’ lien against Berger ; issued a sci, fa. in which they were non-suited. A. second sci. fa. was issued and Berger claimed that the non-suit destroyed the mechanics’ lien and was a bar to the second sci. fa. The Court below entered judgment for Long and Stewart and this was assigned for error.

No. 52 July Term, 1853. The account showed that Murphy had given to Eckel a number of bills receivable amounting to $3,437.01, among which were the note ot $737.06, which was sued on, and also a note of $1,000 drawn by Murphy. Murphy received from Eckel $2,891.87 worth of coal. Afterwards Murphy gave to Eckel some notes of third parties and received the $1,000 note back. Of these notes one for $507.35 drawn by James Moore and ■ endorsed . by Murphy was not paid.

No. 22 July Term, 1863. The facts of the case appear in the charge of the Court by Pearson, P. J.: This suit is founded on a negotiable promissory note for $1,500, drawn at 5 days payable at the Bank of Chester Co., dated Sept. 16, 1854, signed by Levi A. Gheen, payable to and endorsed by John G. Chambers in blank, and lifted by Wesley Matson, who transferred it to the plaintiff. This makes out a sufficient cause of action in the first place.

238 October and November Term, 1874. ¡This was a sou fa. sur. purchase money mortgage, brought by McCurdy, to use of D. E. Steck; against Conner, and Joseph D. Shepley, terre tenant. \ ¡John McCurdy was the owner of a tract of land in Fairfield township. On October 6th, 1864, he conveyed the land to Samuel Conner. On the same day Conner executed to McCurdy and wife a mortgage for $2,203.99, payable in four annual payments, r with interest from December 1st, 1864.

70 May Term, 1874. The facts of this case appear in the charge of the court which was as follows delivered by Dean, P. J. This is an action of trespass, by John Loudon, James Loudon, Joseph Dysart, and William M. Lloyd, plaintiffs, against “The Blair Iron and Coal Company,” defendants, to recover damages for an alleged wrongful entry upon lands of plaintiffs. The action is for an injury to the possession.

The facts of the case appear in the opinion of the Court striking off the appeal, delivered November 18, 1878, by Livingston, P. J.: •Rule to show cause why the appeal should not be stricken off. Granted January 22, 1876. The reasons assigned are : 1. Because the costs had not been paid as required by the Act of Assembly. 2. Because all the costs on said appeal were not paid in cash.

129, October and November Term, 1874. A note endorsed by Dilworth was purchased by Ackley on the last day of grace from the Pittsburgh Savings Bank, an unincorporated association. Ackley was a director of the bank, but on the trial testified that he purchased the note in good faith. Dilworth on the trial claimed a set-off against the bank, because he had bought an interest in said bank, but had not been admitted as a partner.

<p>Error to Common Pleas of Allegheny County, No. 129, October and November Term, 1874.</p> <p>A note endorsed by Dilworth was purchased by Ackley on the last day of grace from the Pittsburgh Savings Bank, an unincorporated association. Ackley was a director of the bank, but on the trial testified that he purchased the note in good faith. Dilworth on the trial claimed a set-off against the bank, because he had bought an interest in said bank, but had not been admitted as a partner. The Court rejected the offer and verdict was rendered for plaintiff. Defendant took this writ of error. 8. A. Me-Clung', Esq , on behalf ot Dillsworth argued that Ackley took the note under circumstances which made it his duty to inquire whether there was any defense ; and that the claim for a set-off being against the firm, was a defense in an action by one of the partners on the note.</p> <p>McClurkam vs. Byers, 24 Sm., 405; Parson’s Partnership, 206 note n, Porthouse vs. Parker, 1 Camp, 82; Gowan vs. Jackson, 20 John, 176; Bouldin vs. Page, 24 Mo., 595; Goodman vs. Simmons, 20 How., 343; Murray vs. Gardner, 2 Wall, 110.</p>

No. 448 January Term, 1868. This was an action of covenant brought by Jacob Scott in his own ñame against the Spring Garden Insurance Company, on a sealed policy of insurance dated April 20, 1867, by which that company, in consideration of a premium of $9.10, paid by Theodore Hawk, insured a “stock of wooden and willow ware” in the sum of $1,200, and “fixtures” in the sum of $200 against loss by fire, in favor of Hawk, “his heirs, executors, administrators, or assigns,…

No. 31 January Term 1877. The suit was brought to recover from the defendant the sum of $3,000, with interest from November 23, 1873, the said sum of money having been received from them by the defendant (who was then a director of the company plaintiffs), upon the day named, upon a check signed by two members of the Finance Committee of the company, plaintiffs averring that for the said sum of money the defendent had given no consideration.

No 103 January Term, 1873. This was an action of ejectment for ninety acres of land in West Brunswick Township, Schuylkill County. George Kimmel under whom all parties claim, owned the farm in controversy. lie made his will, and Nov. 12, 1865 died leaving a widow, but no children.

No. 165 October Term, 1873. This was an action of assumpsit on a promissory note endorsed by one member of a firm without the knowledge or consent of the others. The affidavit of defense alleged this fact and further that the firm had no interest in the note, and had received no consideration, and had not endorsed it in the usual course of business. Two of the partners swear they received no notice of protest, but the third failed to deny receipt of notice.

In Equity. The Township of Concord filed a bill in equity against the Philadelphia and Baltimore Central Railroad Company to restrain the defendant from permitting the approaches to the' railroad crossing, on a public road in said township to remain out of repair.

309 October and November Term, 1880.. On February 2, 1877, Coburn, a furniture merchant in Mead-ville, assigned his real and personal property to Coder for benefit of creditors. The assignee took possession and sold the personal property in a few months, and obtained an order of Court, and tried to sell the real estate, but did not do so until May 9th, 1879. The real estate was assessed in the name of Coburn from 1877 till the assignee’s sale in 1879.

No. 311, January Term, 1880. This was an action of assumpsit brought by one partner against the rest after he had left the firm, for salary. The suit was brought by Mangold against the firm, styling himself as one of the firm. The Court below allowed his name to be struck off as a defendant upon the affidavit of his counsel that it was inserted by mistake. First error.

On June 1,1874, a petition for a county bridge over Naylor’s Run, in Upper Darby Township, was presented to the Court, and by proceedings thereon a bridge was erected. Held: that in a clear case of concealment of something, the parties concealing were bound to disclose. A deed thirty-nine years old, executed by reason of said fraudulent concealment, would be set aside, even after the original parties were all dead.

In Equity. This was an appeal by G. E. Royce from an injunction restraining him from collecting school taxes in the Fourth School District of the City of Scranton. The case was referred to a master, who reported in favor of Royce, but on exceptions the Court below on November 29,' 1873, reversed the master: the opinion, which states the facts, was as follows by Harding, P. J.: The plaintiff’s bill of complaint ig substantially as follows : 1.

Aaron Miller brought suit on June 10, 1878, against Jacob Ply-mire and H. A. Plymire, before a justice, on a promissory note for $90.20. The justice gave judgment for amount of note with interest. An appeal was taken by defendants, and the case was referred to a referee under act of May 4, 1874, P. Laws 166.

On the 22d of February, 1879, the plaintiff by his attorney filed with the Prothonotary of the Court below his praecipe for issuing a writ of attachment in debt against the defendant, under the provisions of the Act of Assembly approved March 17, 1869, returnable the first Monday of March, 1879 ; and at the same time filed the bond of the plaintiff in the sum of $3,000 conditioned according to said Act, and filed also at the same time an affidavit in the following words: “…

No. 77 July Term, 1853. This was an indictment against Patrick Purcell et. al. for murder and manslaughter. On this indictment Patrick Purcell and John Canfield were tried and convicted of manslaughter. The record sets forth as follows: “14 Sept. 1852, John Canfield and Patrick Purcell being arraigned plead not guilty et de hoc, &c. District Attorney similiter aud issue.

Sarah Kauffelt, the widow of George Kauffelt, filed her petition asking for a citation upon George D. Ebert, executor of George Kauffelt, to compel him to deliver to her unconditionally certain shares of bank stock which had been bequeathed by George Kauffelt in the following clause of his will: “I give and bequeath unto my beloved wife Sarah Kauffelt, forty-two (42) shares stock of the First National Bank, of Wrightsville, five (5) shares of stock in the Columbia National…

56, January Term, 1874. This was an action for a balance due for plumbing. Foster, the plaintiff below, swore inter alia, “I undertook to do the whole plumbing and gas fitting for the two Third Street houses. I was to furnish all the material, and was to do it as cheap as anybody else, and I was to do the work. Kline said he would furnish me furniture as cheap as anybody else. There Í3 no dispute about the price of furniture.

John Feiser, late of Dover Township, York County, made his last will and testament devising all his real estate, consisting of two tracts… Held: under a well settled principle of construction, that the devise to the daughter was absolute, and the subsequent disposition intended to provide for the contingency of the death in the lifetime of the testatrix. “The principle upon which this and kindred cases are decided, is that when the bequest over is in case of the legatee’s…

188 January Term, 1877. Appeal by F. J. Wachter and Mary, his wife, in right of Mary Wachter, Executrix of Lorenz Fisher, deceased. Loreuz Fisher died in 1851, leaving a widow, Mary and six children, to whom' he devised his estate. Nicholas Graber married Mary, one of the children who died having devised her whole estate to her husband.

The contest in this case arose upon the construction of the following instrument: “This indenture made and agreed upon the 27th day ot January, A. D., 1866, between John Doll of Dover Borough in the County of York and State of Pennsylvania, of the one part, and Sarah Breneman, single woman of the Borough of York, in said county, of the other part, witnesseth ; That the said John Doll in consideration of a marriage to be had and solemnized between him and the said Sarah…

143, January Term, 1863. It appeared before the Auditor that Wyndam II. Stokes, Trustee, had in hand the sum of $566.31, after payment of expenses ; the proceeds of the rents, issues and profits, of the real estate, situate on Germantown Road and School Lane, which had been devised by Hannah Stokes. The Auditor’s report then continued as follows: “Mr. Pancoast, on behalf of St. Luke’s Church, Germantown, claimed that this balance should be awarded to the Church.

153 October and November Term, 1873. This was an action upon the case to recover damages arising from killing a cow. Allen in pursuance of an agreement with McKinney put his cow to pasture in a field. The cow escaped through the fence and was killed. Allen brought suit for $200 damages, but on the trial swore the cow was worth $75.

The facts of the case appear in the report of Levi Maish, Esq., who was appointed referee, as follows: “This is an action of assumpsit brought before William L. Keeoh, Esq., a Justice of the Peace in and for the county of York, on a note of $50, under seal with warrant to confess judgment, dated February 2nd, 1878, and payable ninety days after date ; drawn by David S. Kimmel, the defendant, in favor of Haas and Grove, the plaintiffs.- “An appeal was taken from the judgment…

No. 214 January Term, 1881. The facts of the case appear in the charge of the Court which was delivered on January 28, 1881, by Pershing, P. J.: Gentlemen of the Jury: — This is an action brought by the Citizens’ Safe Deposit Bank of Mahanoy City, against Ephraim Barlow,, based upon an alleged subscription which he made to the capital stock of this corporation, of which it is claimed there remains unpaid $500, to which sum interest is to be added from the tim,e the call was…

No. 135 May Term, 1877. This was an action of assumpsit brought by Wm. J. Robinson to use of J. R. Clark against the County of Cameron for 1786.42 redemption money. On June 14th, 1864, Robinson purchased two tracts of land to which he claimed title at Treasurer’s sale ; so as to perfect the title. J. F. Clark also claimed title, and on June 12, 1866, redeemed these two tracts of land.

County. No. 134 July Term, 1878. The facts of the case appear in the charge of the court, per Walker, J. This case is an attachment execution under the act of 13 June, 1836, the writ is against the defendant the New York and Schuyl-' kill Coal Company, and Samuel G. DeTurk, Peter Krehmer and Benjamin Hummel are summoned as garnishees.

Plaintiff had an insurance with defendant for $1000 on a house. On January 19th, 1875, the house was a total loss by fire. The agent of the company was duly notified. No proof of loss was made. Some negotiation, looking toward a settlement, was had between plaintiff and Mr. Foster, the adjuster of the company, but was not consummated.

1, of Philadelphia Co. The plaintiffs were contractors to build a railroad in Delaware and received Delaware State bonds as part of the consideration. The bonds were to be used in payment of the iron needed, and to facilitate that arrangement C. W. Wright, Esq., an attorney, was employed, who represented the plaintiffs and an iron company, and it was agreed that he should have the bonds, the proceeds to go to pay for the iron used, and the balance to the plaintiffs.

No. 117 July Term, 1879. Summons in assumpsit. Declaration with common counts and three special counts filed September 12,1874. By agreement this case was tried before Pershing, P. J., without a jury. The following is a statement of facts found by the Court: John E. Wynkoop and Edward W. Wynkoop composed the firm of Wynkoop Brothers, whose business was the manufacture of iron.

180 October and November Term, 1873. This was an action on the case to recover for the loss of the steamboat “Carrie,” on a verbal contract of insurance. Hazlett called at the office of the insurance company and desired to get an insurance on the freight list, if the same had not already been insured by another part owner in St. Louis. Plaintiff testified that he agreed to notify the company if other insurance had been effected.

No. 447 January Term, 1869. This was an action of scire facias sur Mechanics Lien against a leasehold estate of a mining right and improvements erected thereon to recover the price of screens which the plaintiff claimed he had made for a coal breaker, at the colliery of the defendant. Joshua Norton claimed to be agent for the company, and ordered the screens. He paid part, and accepted drafts for the remainder. Schuyler then gave him a bill receipted.

173½ January Term, 1879. In September 1875, G-. G-. Jacoby & Co. made an assignment for the benefit of their creditors to James F. Jacoby. Held: included beside the store room, a stable, dwelling part of the house and warehouse. All were useless for the purposes of this trust except the store room itself. Upon the expiration of the lease with Jacoby & Co. the assignee renewed the lease at the sum of four hundred and twenty-five dollars ($425) per year.

138, July Term 1867. This was an action instituted before an alderman to recover possession of a leased property under the landlord and tenant act of December 14th, 1863 ; P. L., 1125. '

The facts of the case appear in the opinion of the court refusing to open a judgment which was delivered April 28th, 1879, by Pershing, P. J. Barbara… Held: did not release the husband. The language of Judge Biddle is so appropriate to many of these cases, that we quote it: “Under our law a married woman can generally defraud one who may chance to trust her, but this is a personal privilege, not to be extended to her husband or a stranger, who unites with her in the attempt.

No. 167 October and November Term, 1874. This was an action on a policy of insurance. Staib had a saw mill, in Elk County, insured in the above-named company for the sum of $2,500, the policy containing inter alia, a condition that a watchman should be kept on the premises day and night. There was also a condition that in case of fire the loss should be certified to before a justice of the peace.

No. 168, January Term, 1874. Debt on insurance policy in the sum of $3,750. Same insurance in Home Insurance Co. of New York. Both policies contained a stipulation that permission to use kerosene must be endorsed on the policy in writing. The evidence showed that tbe agent who effected the insurance for both companies agreed that kerosene might be used, and that he endorsed it on the Home policy, but accidentally omitted it on the North American.

No. 202 January Term, 1880. This was a feigned issue to determine the title to certain personal property which had been levied on by the sheriff.

2, of Philadelphia, No. 15 January Term, 1877. This was an action of debt on a bond against James Morrell as surety on a bond, conditioned for the faithful performance by one William Trucks, an agent of the plaintiff at Wilkesbarre, of all the duties of his position as agent, and for the due rendering by him of a just account of all moneys that might come into his hands as agent of said-Express Company, and generally for the faithful performance of his duties as such agent.

No. 95, January Term, 1878. The plaintiff below was the collector of school taxes for 1870 and 1871, appointed by the defendant. He gave security and received the duplicate for those years. He brought suit in 1873 against the School District, alleging that he had paid to the district more money than he was obliged to pay. The defendant plead non assumpsit, but not set off. July 12th, 1876, verdict for plaintiff for $29.75.

No. 160 January Term, 1864. This was an action to assess damages caused by defendants railroad, crossing plaintiffs farm, near Reading, which had been removed to Schuylkill County, under the allegation that a fair trial could not be had in Berks County.

October and November Term, 1872. Appeal from the Common Pleas of Indiana County. In Equity. Samuel Lower filed a bill in equity against John Wightman and John Nevins to set aside a conveyance of a farm on the ground of fraudulent representations by Wightman when the contract was made. An answer denying the bill, and a replication traversing the answer were filed.

In Equity. The facts of the case appear in the opinion of the Court below, sustaining defendants demurrer to plaintiffs bill, delivered Aug. 12, 1880, by Hagenman, P. J. The bill charges that Leah Stump is the owner of a water power on the Tulpehoeken Creek, which is used to drive a large grist mill belonging to her* That the water power is furnished by the water of said creek, which flows from a feeder dam erected across the same.

No. 175½ January Term, 1876. This case arose from a proceeding to assess damages caused by the opening of a State road, called Conshohocken Avenue, in Philadelphia. Amos and Wm. George originally owned the land on which this State road is located, and during their ownership the “Old Columbia Railroad” was constructed through their land, occupying the same land as that occupied by said Conshohocken Avenue subsequently.

No. 43 .January Term, 1879. The Philadelphia and Reading R. R. Co. were about to construct a track, raised 30 inches above the street, to connect with a bridge so as to obtain access to the rolling mill oí Seyfert, McManus & Co. across Canal street in front of Getz’s property, and took a small dwelling house on his lot. Getz filed a bill in equity to restrain them, but the Court dissolved the injunction on the railroad company’s filing a bond for the damages of Getz.

Nos. 263 and 355, January Term, 1868. Case stated in substance as follows: 1st. That the Assessor of Seventh ward of Reading has returned for taxation for County purposes, &c., as the property of the… Held: the tenth section defines the means of selection and appropriation, and the mode in which title may be acquired.

No. 365 January Term, 1870. This was an action to recover the amount of a bond, dated January 21, 1842, payable January 21, 1843, for $165 executed by Abraham Guldin and John Guldin, his father, as his surety. Abraham Guldin paid the interest until January 21, 1860.

281, January Term, 1878. J. Prank Werner, Esq., Sheriff of Schuylkill County, levied on a certain foundry and machine shop belonging to Lewis P. Garner and William A. Christian, and sold the same ón Sept. 8th, 1875, to A. P. Spinney, who signed the conditions of sale as “A. P. Spinney, Attorney.” Spinney purchased the property for himself, James R. Cleaver and William Cleaver, in equal shares. Jos.

23, October and November Term, 1877. Goods had been supplied to the miners in a colliery, upon orders of the operators, who afterwards made an assignment for thé benefit of creditors, and on distribution of the assigned estate, the holders of the orders claimed the preference as assignees of the miners’ claim.

No. 41, May Term, 1879. The facts of the case appear in the opinion of the Court on a motion to take out of court the money returned on a writ of fi. fa; which was delivered by McLean, P. J. The defendant, Hanson Stonesifer, by deed of assignment dated March 28th, 1878, conveyed all his estate to Abraham Gr. Keagy, in trust for creditors, except such and so much as may be exempt from execution, and the deed was recorded the same day in the ■Recorder’s office.

30, January Term, 1883. In Equity. John P. Hobart, Trustee, was plaintiff in a Bill in Equity to restrain Jacob Ulshafer and others from cutting timber. On June-14th, 1880, judgment pro confesso was taken against Ulshafer. On> Sept. 6th, 1880, a rule for attachment was granted. On Sept.. 13, 1880, Ulshafer filed an affidavit asking that judgment be opened so that he might make defence.

In Equity. No. 279 January Term, 1880. The Plaintiff’s bill averred that they are the owners of 31-40ths of the “Pott and Bannan” tract of 420 acres in New Castle Township, assessed as seated land and sold by the Treasurer to the Commissioners in June, 1874, on account of non-payment of taxes. That the present Commissioners have advertised the same for sale on Dec. 17th, 1879.

This was an action of assumpsit to recover for work on defendants railroad in pursuance of a written contract, one clause of which was as follows: “And it is expressly covenanted and agreed between the parties aforesaid that the monthly and final estimates of the engineer shall be conclusive between the parties to this •contract; the former for the time being, and the latter for all time without further recourse or appeal; the monthl}’- estimates of the ■engineer being,…

No. 5, January Term, 1868. Gable brought suit against J. R. Breitenbach, W. S. Breitenbach and Samuel Sheetz, as Breitenbach & Co., to Sept. Term, 1861. The writ was served on-Samuel Haak, their agent, and on 26th October, 1861, judgment was taken against defendants for want of an appearance for $125.51.

No. 366, January Term, 1860. The facts of the case appear in the charge of the Court, delivered by Hegins, P. J.. This action is brought to recover the money expended by the plaintiff in the repairs of a bridge on a road in the said borough where it crosses a coal vein on the land of the defendant, then occupied and worked by William Donaldson, as tenant. The road was laid out- and opened by the Court in 1854.

No. 184 May Term, 1878. John Ehrgood made an agreement to sell his farm to Rishel for $1,400. Rishell was to pay Ehrgood $100 a year for seven years and was to maintain Ehrgood during the rest of his life for the other $700. In case Ehrgood died before he received all the annual payments Rishell was not bound to pay the balance. In pursuance of this agreement Ehrgood conveyed to Rishell and died two years afterwards.

Appeals from the Common Pleas of Northumberland County. In Equity. Nos. 66 January Term, 1866 ; and 315 January Term , 1867. Held: Judge Maynard and Mr. Brady called on him, and requested him to represent some bonds of the railroad company before the Master.

239, October Term, 1874. William Hageman insured his property in the People’s Insurance Co. and gave a premium note to the company for $99.00, payable as the assessments fell due.

9, July Term, 1865. The plaintiff brought suit in debt against tüe Philadelphia & Baltimore Central R. R. Co. on certain bonds, which contained a clause as follows: “It being agreéd that when said company shall be in default in the payment of the semi-annual interest as it becomes due on said bonds for three successive times, the same having been demanded according to the tenor thereof, then the principal of all the said bonds, secured by the said mortgage shall be forthwith…

No. 93, January Term, 1876. On the 26th of January, 1874, Albert S. Grey, between nine and ten years old, was coming from school with three or four boys of his age. At the corner of Tenth and Arch streets they ran from the north pavement towards one of defendant’s ears that was moving west, and continued running in the middle of the street, along-side of the car.

No. 204, Jamtary Term, 1881. This was an action of trespass q. c.f. d. b. a. for a quantity of ice. Payne claimed title under the following license : “Reading, January 24, 1874. Mr. J. M. Payne is permitted to take ice from the canal levels above Schuylkill Haven, to be loaded into boats or shipped by rail to Philadelphia, provided no previous grant has been given by proper authority to other parties. James F. Smith, Chief Engineer of Canals.

.Certiorari to Common Pleas of Schuylkill County. No. 127, January Term, 1880. The facts of the case appear in the opinion delivered December 1,1879 by Walker, J.: This case comes before us on an appeal by a taxpayer, from the settlement of the treasurer’s and collector’s accounts by the board of auditors of Mahanoy township. The 104th sec. of act 15, April, 1834, (Pur.

There were two cases of petitions for damages for .opening streets in Pottsville. The facts were similar, the rulings indentical and the Supreme Court delivered one opinion in both cases.

In Equity. No. 112 May Term, 1877. Billmeyert Dill & Co., insured their frame steam saw mill, 34 by 150, and engine shed attached on the north side, 20 by 66 feet; giving a premium note for $1,000, dated July 23rd, 1867, the insurance expiring July 23rd, 1872; situated on the west side of Buffalo Creek, Lewisburg, Union County, Pa.

No. 116 January Term, 1877. This was a sci. fa. sur mortgage by the Tradesmen’s Building and Loan Association No. 2, of Philadelphia, against James H. George and Jeannette, his wife. The facts were as follows: In May, 1873, the Tradesmen’s Building and Loan Association issued a fourth series of stock, and in May, 1874, Jeannette George, a married woman, became the holder of thirty shares of that series and obtained a loan from the association upon stock in her name.