Volume 10 — Sadler's Pennsylvania Reports

January Term, 1888, No. 96, E. D., Certiorari to the Quarter Sessions of Lackawanna County to review a decree incorporating the borough of Taylorport, June sessions, 1886, No. 91. June 7, 1886, a petition was presented to the quarter sessions of Lackawanna county for the incorporation of the borough of Taylorport. It was referred to the grand jury, who returned it with their approval.

January Term, 1888, No. 94, E. D., Error to the Common Pleas of Lehigh County to review a judgment reversing the judgment of a justice of the peace against a garnishee, June term, 1887, No. 49. February 12, 1887, S. S. Messinger and G. E. Messinger, trading as S. S. Messinger & Son, obtained a judgment before a justice of the peace for $133.43 against David Hausman. February 19,1887, an attachment execution was issued and Phaon W. Mantz was summoned as garnishee.

January Term, 1888, No. 250, E. D., Error to the Common Pleas of Northampton County to review a judgment in favor of the defendant Jacob Vocht in an action of trespass, October term, 1887, No. 1. This action was brought by Frederick Kiddence and Augusta. Kuklence, his wife, in right of the wife, against Jacob Vocht and Anna Vocht, his wife, to recover damages for alleged slanderous words spoken on August 7, 1887, by Anna Vocht in reference to Augusta Kuklence.

<p>January Term, 1886, No. 393, E. D.,</p> <p>Error to the Common Pleas of Chester County to review a judgment on a verdict for the plaintiff in an action of trespass guare clausum fregit, January term, 1885, No. 35.</p> <p>This was an action begun December 3, 1884, by Lawrence Hippie, against Abraham Wanger.</p> <p>The facts as they appeared at the trial were as follows:</p> <p>Lawrence ITipple, grandfather of the plaintiff, became the owner of a farm of 161 acres, in East Goshen township, Chester county, in 1804, by sheriff’s deed. After his death his son Henry Hippie became its owner, by proceedings in partition, in 1822. After the death of Henry Hippie, his son Lawrence Hippie, plaintiff, became its owner by deed from his father’s heirs in 1864.</p> <p>In the time of Lawrence Hippie, the grandfather, this farm was not intersected or bounded by any public road. To the east of it was the Goshen public road, running northerly and southerly, giving access to Philadelphia and Chester. The farm was cut off from the Goshen road by an intervening owner’s land, over which the grandfather passed from the eastern boundary line of his farm to the Goshen road, a distance of 350 yards. His dwelling house lay 100 yards west of that line.</p> <p>The right of way, on the trial, was not traced to any deed or paper writing. Plaintiff called witnesses to establish it. One of them knew it in the year 1817; another in 1823; another in 1833; two others for fifty years; and two others for forty-five years; another for thirty-five years; two others for thirty-two years; others for lesser periods. It was fenced in; had a gate at each end — the western one kept up by the owners of the Hippie farm, the eastern one kept up by the owners of the farm now belonging to the defendant.</p> <p>In the year 1835 Henry Hippie, plaintiff’s father, graded down a hill on it, cutting 2 or 3 feet down through rock and stony places, digging into it for 30 or 10 yards, and hauling the material to the foot of the hill.</p> <p>Owners of the Hippie farm have repaired the right of way and its fences, hauled their lime, wood and marketing over it, and used it whenever and however they pleased for more than twenty-one years back from the year 1881, and without interruption or objection from any source. The first interference with it came from the defendant after he got his deed for the Adam Rennard farm, dated April 1, 1882.</p> <p>George March was the brother-in-law of Adam Rennard, and at one time a joint owner with him of the farm sold to the defendant.</p> <p>George March, after the death of Adam Rennard, acting for the Rennard heirs, exposed this Adam Rennard farm to public sale on the premises, and at and before sale gave notice of .the right of way, which was in plain view, end to end, from the point where the sale was held.</p> <p>Plaintiff was also in attendance on the sale, and before it was made, gave notice to the defendant of the right of way, and of his intent to claim it.</p> <p>The defendant offered evidence to show that the plaintiff claimed under a mere license.</p> <p>The defendant submitted, inter alia, the following points:</p> <p>1. The plaintiff’s claim in this case is founded upon the presumption of a grant. If, however, the defendant, Mr. Wanger, by his evidence has satisfied the jury that the use of the way may be referred to a license or agreement, the verdict must be for the defendant.</p> <p>Ans. I cannot affirm this point in the language in which it is written. The whole evidence is for the consideration of the jury. The burden of proof is upon the defendant; but, if the whole evidence satisfies you “that the use of the way may be referred to a license or an agreement,” your verdict 'should be for the defendant. [1]</p> <p>4. The fact that no mention is made of this right of way in the deed to Lawrence Ilipple, in 1864, is a circumstance in favor of the defendant’s position that no such right of way existed or was claimed at that time.</p> <p>Am. This point is disaffirmed. [2]</p> <p>6. The lane being the lane of the owner of the land, for his use, to enjoy his own property, spring house, cattle yard, hog house, etc., the presumption is that the use by the plaintiff was not adverse.</p> <p>Ans. This point is disaffirmed. [3]</p> <p>1. This way having been used by the defendant and his predecessors, in common with the plaintiff and his predecessors, no right of way can be acquired by adverse user.</p> <p>■Hns. It appears from the evidence that the lane was used by the owners of both farms. There was a gate way at the entrance of the lane leading to the plaintiff’s farm, and there was also a gate way on the defendant’s farm. The plaintiff used his gate way to pass out to the Goshen road, over the land of the defendant, and the defendant used the lane for a similar purpose, his barn being near the Goshen road, and his cattle yard and other out buildings near the line of the plaintiff’s land. The lane was therefore used in common by both parties. If you find that the use of the lane by the plaintiff across the defendant’s land, during all the years named by his witnesses, was uninterrupted and adverse, under the instructions I have given you, the fact that the defendant and his predecessors in title may have also used it does not operate against the position taken by the plaintiff, viz., that he has the right to use it by long-continued adverse user. [4]</p> <p>8. Under the evidence the verdict must be for the defendant.</p> <p>Ans. This point is disaffirmed. There are questions of fact in the case I have submitted for your consideration. [5]</p> <p>The court charged, inter alia, as follows:</p> <p>The defendant, however, claims that the right of the plaintiff to use the lane is not based upon the principle of adverse user, but has been exercised simply by reason of a certain agreement, and refers to a conversation Georg'e March, a former owner of the property, held with Henry Hippie, in the year 1851.</p> <p>It appears that there is a fence near the line of the two properties, on the west side of the creek, extending southward from the lane. Mr. March testified that in 1851 he went upon Henry Hippie’s land for the purpose of repairing that fence, which was on his side of the run; that while he was there, Mr. Hippie requested him not to get any further onto his land than he could help, and added that, as long as he could pass in and out of the lane, the fence could stand on that side.</p> <p>The conversation detailed by Mr. March, occurred in 1851; and at that time, if the plaintiff’s witnesses are believed, the right of way had been established by adverse user for a period of time varying from thirty to thirty-four years.</p> <p>It appears that it was only a casual conversation Mr. March held with Henry Hippie, and that he had no occasion to mention it until 1818, twenty-seven years thereafter. A period of thirty-four years has since elapsed; and in determining the question you should consider whether any reliance can be placed upon the recollection of a witness respecting a brief conversation occurring at such a remote date. The question, however, is one for your determination; and I submit it to you, with the remark that you should be careful not to give such testimony undue weight, and have regard for the long space of years that has since elapsed. [6]</p> <p>Verdict and judgment for plaintiff, for 50 cents damages and 6 cents costs.</p> <p>The assignments of error upon which stress was laid specified: (1-5) The answers to the defendant’s points; and (6) the portion of the charge quoted.</p> <p>The defendant’s position is that the use was referable to a license or agreement. The court charged the jury that even if the testimony of George March is reliable, the right of way existed by adverse user, and was fully established before 1851. That fact should have been referred to the jury. Steffy v. Carpenter, 31 Pa. 41.</p> <p>The rule that a license to do something on the licensor’s land, followed by expenditure on the faith of it, is irrevocable rests on the principle of estoppel, because the parties cannot be placed in statu quo. Huff v. McCauley, 53 Pa. 206, 91 Am. Dec. 203.</p> <p>Twenty years’ adverse user of a way under claim of right is sufficient to authorize the presumption of a grant. And that it was adverse may be presumed if the user was notorious and in the ordinary manner — and not under circumstances showing it to have been by leave and favor, or by the courtesy of the owner. Esling v. Williams, 10 Pa. 126.</p> <p>Permissive trespasses, however long continued, never raise the presumption of a grant, as against an individual. Susquehanna County v. Deans, 33 Pa. 131.</p> <p>If the use of the way by the plaintiff was merely a permissive use, and the jury, from the evidence, might so have found, then he could not claim the easement as of right; for in that event no presumption of grant could arise from the mere lapse of time. In order to establish such right, the user must be adverse, not permissive. Demuth v. Amweg, 90 Pa. 181.</p> <p>The mere user of a way by the public, for the space of twenty-one years, will not vest a title in them thereto by prescription, unless the user be adverse- and under claim of right. Where such user is with the knowledge and acquiescence of the owner of the land traversed, and is under his leave and favor, by his permission, and at his will, no title by prescription can arise. Hoot v. Com. 98 Pa. HO, 42 Am. Hep. 614.</p> <p>A familiar intercourse between families may be evidence of a general license to pass over the land of each other for the purpose of visiting. Martin v. Houghton, 45 Barb. 258.</p> <p>A space left open in private property bordering on a highway for the accommodation, not of the public, but of the owner, is not thereby dedicated to public use, but may be resumed at pleasure. Gowen v. Philadelphia Exch. Co. 5 Watts & S. 141, 40 Am. Dec. 489.</p> <p>It is well known that a single lisp of acknowledgment by 'the defendant, that he claims no title, fastens a character upon his possession which makes it unavailing for ages. Colvin v. Bur-net, 11 Wend. 564.</p> <p>It is for the jury to determine whether the user has been adverse under a claim of right, or by the owner’s permission, as upon that would turn the question whether he had gained such easement. Washb. Easements, 14; Manionw. Creigh, 37 Oonn. 4-62.</p> <p>If it appears that the enjoyment has been by permission asked, or for a rent paid, or other equivalent acts done by the one exercising the privilege, showing that it was not done adversely or under claim of right, it effectoally rebuts that presumption. Washb. Easements, 3d ed. 133 ; Oobb v. Davenimrt, 32 N. J. L. 369; Kilburn v. Adams, 7 Met. 33, 39 Am. Dec. 754; Ewing v. Burnet, 11 Pet. 53, 9 L. ed. 629; Bicard v. Williams, 7 Wheat. 59, 109, 5 L. ed. 398, 410; Arnold v. Stevens, 24 Pick. 106, 35 Am. Dec. 305.</p> <p>A regularly formed and wrought way across the ground, paved, etc., and fitted for use as a. way from his own estate to the highway, indicating a use distinct from any use to be made of it by the proprietors, Avould, in our opinion, be evidence of such exclusive use and claim of right. Kilburn v. Adams, 7 Met. 33, 39 Am. Dec. 754.</p> <p>That the adjacent proprietor had occasionally leveled a spot gullied by the rain could scarcely be regarded, independently of other proof, as indicative of a claim of right. Gloucester v. Beach, 2 Pick. 60, note.</p> <p>No right is acquired in land by a user aaIiícIi can be explained without supposing a grant, or be satisfactorily referred to encroachment only. Da.Avson A. Norfolk, 1 Price, 246.</p> <p>The plaintiff in error admits the long and continued use of tire Avay by the defendant in error and his predecessors in title, Avithout interference or molestation by those A\dio preceded the plaintiff in ownership, for a j>eriod of over sixty years. Such enjoyment of a way Avithout more establishes a. right, based upon the presumption of a grant, and calls upon him who denies it to OAercome this presumption.</p> <p>The question of fact was fairly left to the jury, whose attention was properly called to the character of the testimony, the length of time that had elapsed since the conversation was had, and the care they should exercise in considering it.</p> <p>The court will not reA^erse for an erroneous expression of the court’s opinion on a fact, unless it clearly appear that the jury were thereby precluded from deciding for themselves. Riddle v. Murphy, 7 Serg. & R. 230; Williams v. Carr, 1 Rawle, 420; Kilpatrick v. Com. 31 Pa. 216; Johnston v. Com. 85 Pa. 65, 27 Am. Rep. 622; Reese v. Reese, 90 Pa. 89, 35 Am. Rep. 634; Bonner v. "Herrick, 99 Pa. 220; Leibig v. Steiner, 94 Pa. 466.</p> <p>An instruction that there can be no doubt of a disputed fact, “if the testimony be true,” is a substantial submission of it to the jury. Central R. Co. v. Green, 86 Pa. 421; Pennsylvania R. Co. v. Werner, 89 Pa. 59.</p> <p>Where one uses a road, whenever he chooses, over the land of another, without asking leave and without objection, the use is adverse, and an adverse enjoyment, uninterrupted for twenty-one years, gives an indisputable title to the enjoyment. Such enjoyment, without evidence as to how it began, is presumed to have been in pursuance of a grant, and the burden of showing the contrary lies on the owner of the land. Garrett v. Jackson, 20 Pa. 331.</p> <p>It also gives a right of way, without evidence to explain how it began. The enjoyment is presumed to have been in pursuance of an unqualified grant; and the burden of showing the contrary is upon the owner of the land. Pierce v. Cloud, 42 Pa. 102, 82 Am. Dec. 496; Olceson v. Patterson, 29 Pa. 22; Steffy v. Carpenter, 37 Pa. 41.</p> <p>If the use of the way in question was adverse it need not be necessarily exclusive. Nash v. Peden, 1 Speers, L. 22; Washb. Easements, p. 98; Garrett v. Jackson, 20 Pa. 331.</p> <p>A license for the enjoyment of certain privileges on land, obtained under an executed verbal contract, founded upon a sufficient consideration, is irrevocable by the licensor or those claiming title in the land under him. Thompson v. McElarney, 82 Pa. 174; Dark v. Johnston, 55 Pa. 169, 93 Am. Dec. 732; Ebner v. Stichter, 19 Pa. 19; Rerick v. Kern, 14 Serg. & R. 267, 16 Am. Dec. 497; M’Kellip v. M’llhenny, 4 Watts, 321, 28 Am. Dec. 711; Campbell v. McCoy, 31 Pa. 263.</p>

January Term, 1888, No. 126, E. D., Error to the Common Pleas of Lehigh County to review a judgment on a verdict for the defendant in an action of replevin, April term, 1887, No. 91.

<p>January Term, 1888, No. 4, E. D.,</p> <p>Error to the Common Pleas of Lackawanna County to review a judgment in favor of the plaintiff on a scire facias sur mechanics’ lien,.April term, 883, No. 336.</p> <p>This was a scire facias on a mechanics’ lien, by Richard B. Brockway, against Harry 0. Lucas, executor of Thomas Lucas, deceased, Silas Lucas, 0. W. McKinney, and Robert Reaves, trading as the Lucas Coal Company, owners or reputed owners and contractors.</p> <p>R. B. Brockway filed a mechanics’ lien for $4,365.25 February 19, 1883, against the plaintiffs in error as the owners of a coal breaker. A scire facias was issued and after a trial before arbitrators and an appeal by the defendants, the case was referred to E. Merrifield as referee. He heard the parties and made a report in favor of the plaintiff which the court, after exceptions and argument, approved.</p> <p>Subsequently the case was reopened by the court and the referee again heard the parties and reported upon the questions of fact and law as follows:</p> <p>1. On September 12, 1881, Thomas Lucas became the owner of a leasehold interest in the lands described in the mechanics’ lien referred to, which are the same as are described and re-referred to in the scire facias issued in this case.</p> <p>2. Sometime during the month of October, 1881, Thomas Lucas, Silas Lucas, C. W. McKinney, and Robert Reaves, the defendants, made a contract with R. B. Brockway, the plaintiff, to build the coal breaker in question as described in the mechanics’ lien and upon the lands therein referred to.</p> <p>3. The mailing of the contract was completed, the work entered upon and proceeded with, with the said defendants acting as 'owners or reputed owners of the premises.</p> <p>4. No notice was brought to the attention of Brockway that the leasehold interest stood solely in the name of Thos. Lucas.</p> <p>5. The said R. B. Brockway made a written agreement with the defendants to build the breaker in question, and all the appurtenances necessary to run coal; find all the lumber, spikes, and nails and set all the machinery, except the engines and boilers, for the sum of $27 per thousand feet of lumber used, to be counted board measure feet.</p> <p>6. The amount of lumber used was 700,970 feet, amounting, at $27 per thousand, to $18,926.19.</p> <p>7. Plaintiff did extra work amounting to $322.38, which is chargeable in the contract for building the bzeaker.</p> <p>8. The breaker was completed on the 24th of January, 1883, with the exception of putting on some irons connected with the shutes and telegraphs. That these wez’e left unfinished because of the failure of the defendazzts to furnish them as agreed.</p> <p>9. The whole amouzit of moziey to be paid under the contract is $19,248.57.</p> <p>10. The amount of money paid by the defendants to the plaintiff on the contract is $16,804.16.</p> <p>11. The balance due frozn the defezzdants to the plaintiff was $2,444.41 on the 10th of February, 1883.</p> <p>12. After the contract was made between the parties, plaintiff azzd defendazzts, the work commenced, and a portion of the payments made, the defezidants organized as the Lucas Coal Company, Limited, and thus went on and completed the work which they had undertaken as izzdividzzals.</p> <p>13. On the first of October, 1884, the Lucas Coal Cozzzpany, Limited, leased the, colliery in question to the Union Coal Company, Limited, in which the latter company asszzmed to pay the indebtedness of the Lucas Coal Coznpany, Limited, among which was included the claim of the plaizztiff in this case.</p> <p>14. Subsequently E. 13. Urockway, the plaintiff, signed a paper agreeing with the said Union Coal Compazzy to accept payment of his claim, that is, to take a pro rata share with the other creditors of the Lucas company of the amount of rental at the rate of ten cents per ton for all coal mined, payable in quarterly payments. No money was paid Brockway in pursuance of this arrangement.</p> <p>15. The present action was-at the same time pending; and Broclcway, at the tizne he signed the paper referred to in the preceding paragraph, made a verbal reservation that he did not mean thereby to impair his lien.</p> <p>Under the facts as aforesaid stated and found the plaintiff is entitled to a judgment for the sum of $2,444.41 with interest from Februaz-y 10, 1883.</p> <p>The statemezzt of claim was as follows:</p> <p>Bichard B. Brockway, above named, hereby files his clazzn or statement of demand against the right, title, and interest of the above-named Thomas Lucas, Silas Lucas, O. W. McKinney, and Robert Reaves, of, in, and to, all that certain Improvements, machinery, and fixtures which are parts of, and together make and constitute the erection known as a coal breaker, as also the machinery, fixtures, and appurtenances thereunto, and necessary for the enjoyment thereof, and curtilage appurtenant thereto.</p> <p>The following exceptions, inter alia, were filed to the second report of the referee:</p> <p>1. The mechanics' lien is void because filed against the entire plant, which consists of several separate and distinct buildings, in this language: All that certain improvements, machinery,</p> <p>and fixtures, which are part of, and together make and constitute, the erection known as a coal breaker, as also the machinery, fixtures, and appurtenances thereunto, and necessary for the enjoyment thereof. A boiler house and other buildings included in the wood work, erected by the plaintiff and for which he claims a lien, are distinct and separate buildings.</p> <p>3. The lien is not filed against the specific improvement for which Brockway furnished materials and work and labor, under the contract recited in said lien, and is therefore void.</p> <p>4. The lien is void because, purporting to be against leasehold by virtue of the act of 1858, it claims a hold on the breaker, machinery, fixtures, and curtilage appurtenant thereto.</p> <p>The court, Hand, P. J., after a rehearing, dismissed the exceptions, filing the following opinion:</p> <p>“It was not intended in granting a rehearing to reopen the case upon any other basis than that on which the case came up before the referee. We stated in our opinion that no exception had been filed to the validity of the lien. On the ground that in the mass of papers we had overlooked such an exception, and that it was general, we allowed counsel to specify any valid exception permissible under the rules of pleading. Having filed his plea he had waived technical objections to the lien, except such matters as are stated in St. Clair Coal Co. v. Martz, 'TS Pa. 388, which makes the lien void above all pleadings. In view of this decision we have again carefully reviewed this case. We cannot discover the likeness asserted between this case and that. The mere mention of curtilage and appurtenances, without further designation, amounts to surplusage and would carry nothing by a sale. The designation of the land in this' lien is only for the purpose of location, not description. The lien is only against interest in improvements, as briefly stated in our former opinion. On reflection we see no reason to change our opinion expressed in the first disposition of this case, and we leave the case on that decision and direct judgment as there ordered. We deem it the best disposition to simply dismiss the exceptions filed June 9, 1887.”</p> <p>The assignments of error specified, inter alia, the above action of the court.</p> <p>A lien filed against a leasehold interest, if extended by its terms to anything more than the specific improvement, is void. St. Olair Coal Co. v. Martz, 75 Pa. 384; Ely v. Wren, 90 Pa. 148; Johnson, Mechanics’ Liens, 64.</p> <p>This case is clearly distinguished from Thomas v. Smith, 42 Pa, 68, and Mountain City Market House & Hall Asso. v. Kearns, 103 Pa. 404, because the liens in those, cases were filed against specific buildings, which were clearly described, not against extensive works. One was against an ice house and one was against a market house. In this case lien was claimed against all that certain improvements, machinery, and fixtures which are parts of and together make and constitute the erection known as a coal breaker, as also the machinery, fixtures, and appurtenances thereunto and necessary for the enjoyment thereof and curtilage appurtenant thereto.</p> <p>The wide and important distinction between this case and St. Clair Coal Co. v. Martz, 75 Pa. 3S8, is this: The only thing the claimant in the latter case did was to superintend the putting in the breaker a patent hoisting and dumping machine; and for doing this he filed a lien against the whole breaker. Common sense as well as law would forbid this. The defendant in error files his lien against the breaker, because he built and furnished the material for the entire breaker. A single, specific, and entire coal breaker is all that is there, and I challenge the learned counsel to name a single improvement that was not erected by the defendant in error and erected as a part of a complete coal breaker. And this brings the case within Thomas v. Smith, 42 Pa. 68; Mountain City Market House & Hall Asso. v. Kearns, 103 Pa. 404, MeClintock v. Kush, 63 Pa. 203; and Wharton v. Douglas, 92 Pa. 66.</p>

January Term, 1888, No. 202, E. D., Error to Common Pleas No. 2 of Philadelphia County to review a judgment refusing judgment for the plaintiffs for want of a sufficient affidavit' of defense in an action of assumpsit, September term, 3887, No. 219.

July Term, 1887, No. 165, E. D., Appeal from a judgment of Common Pleas No. 3 of Philadelphia County discharging rules for a feigned issue and for the payment of the fund arising from a sheriff’s sale into court.

<p>January Term', 1888, No. 173, E. D.,</p> <p>Error to the Common Pleas of Berks County to review a judgment on a verdict for the plaintiffs in an action of debt, May term, 1885, No. 46.</p> <p>This was an action of debt by Isaac Frey and Jeremiah Dierolf, executors of Sarah Boyer, deceased, on a sealed promissory note, dated April 1, 1880, signed by David Heydt. The note was for $850, payable with interest to the order of Sarah Boyer, one year after date. The case was first tried in October, 1886, and a verdict was rendered for the defendant. The judgment was reversed by the supreme court. See Frey v. Heydt, 116 Pa. 601, 11 AtL 535.</p> <p>On the second trial the plaintiffs offered in evidence the will of Sarah Boyer (admitted to probate in the register’s office on the 26th of September, 1884; and on the same day letters testamentary granted to Isaac Frey and Jeremiah Dierolf, the persons therein appointed as the executors.) The certificate of the register set forth that Sarah Boyer died August 26, 1884.</p> <p>' Plaintiffs also offered in evidence the note, which was as follows :</p> <p>April 1, 1880.</p> <p>One year after date I promise to pay or order of Sarah Boyer, widow, the sum of $850, with 5 per cent interest, without defalcation, for value received.</p> <p>(Signed in German)</p> <p>David Heydt. (Seal.)</p> <p>Together with the following indorsements:</p> <p>Paid the interest in full until the first day of April, 1881.</p> <p>Paid the interest in full until the first day of April, 1882.</p> <p>Plaintiffs rested.</p> <p>The defendant made the following offer:</p> <p>Defendant offers to prove, by the witness on the stand and others, that the note in suit was given by mistake and does not express the contract or understanding of the parties at the time the note was given; that the $850 mentioned in the note were given by the testatrix to the witness, who resided with her, with instructions that ho should take it to the wife of the defendant, who was the daughter of the testatrix, and say to her that she should take it as an advancement, and that she should never repay the same, but that the defendant, her husband, should give a note to pay the interest so long as she lived, provided she would need it, and would ask for it; that in pursuance of said instructions, the witness took the money to the defendant’s bouse and there met him and his wife, who refused to receive the money in that way; that the witness then took the money borne again to the testatrix, and informed her that the defendant’s wife refused to receive it; that she thereupon directed him to prepare a note to be signed by a neighbor, to whom she declared she would loan the money and take the note from him; that witness then prepared the note in suit, and placed it with the money; that it remained there for some time, and the neighbor to whom she wished to loan the money not having come for it she again gave the money to the witness, and instructed him to take it to her daughter, the wife of the defendant, and ask her to take it as an advancement, and that if she would not take it she would never get a cent from her, and that the principal sum should never be paid, but that the defendant should give a note to secure the interest, in case she should need it and would call for it; that the defendant and his wife at first strenuously objected to receiving the money at all, but upon being urged by the witness on behalf of the testatrix to accept it, finally did accept it, with the express agreement that it was an advancement, and that the principal should never be returned, and that tire defendant should subsequently sign a note to pay the interest in case she would need and call for it; that witness then left the money with defendant’s wife, and returned to the testatrix and told her what he had said and done, who then said to him that she was glad they had taken it. Several weeks- after that the testatrix informed the witness that now, that day, his father (the defendant) had signed a note for it; witness replied there was none prepared for him; that testatrix then showed Avitness the note in suit, who said to her, “This is wrong, I Avill go doAvn immediately and tell him that this is wrong;” that thereupon testatrix said he should not go, that both parties knew that the understanding Avas that the money was given as an advancemeirt; the witness then replied, “This will make trouble;” and testatrix said he should stay here, if he went doAvn and told them, that defendant would bring the money back; that the note in suit is the same Avhich was prepared by the witness for another party; that it is written in English, and that neither the testatrix nor the defendant could read English writing; that the payments of interest indorsed on the note were made in pursuance of the- understanding and agreement between the witness and the defendant at the time the money was received.</p> <p>The defendant offers to prove further, by this and a number of other witnesses, that the testatrix subsequently said in the presence of the defendant, that the money was given by her to her daughter, defendant’s wife, as an advancement, and that the principal should never be returned, but only the interest in case she would need it.</p> <p>It is further proposed to show that the testatrix stated, prior to the time tho money was delivered, to one of the plaintiffs, that she had never given anything to “Betsy,” defendant’s wife, and that she intended to give her something, too, as she had given to her other children.</p> <p>This evidence is offered for the purpose of showing that the note in suit was given by mistake, and does not contain the contract of the parties, and to show that the $850 mentioned in the note in suit is the same money which the plaintiffs’ testatrix gave to the defendant’s Avife as an advancement.</p> <p>By plaintiffs’counsel: Objected to, by the plaintiffs: First, because an instrument in writing and under seal cannot be varied and annulled by parol testimony, such as that embraced in and contemplated by the offer; second, because the testimony offered does not constitute a good defense to the plaintiffs’ action; ■■and third, it is generally irrelevant, incompetent, and inadmibsible.</p> <p>By the Court: Is it proposed by the defendant that the testimony offered shall be different from that which occurred on the former trial, as contained in the case between the same parties, reported in 116 Pa. 601, 11 Atl. 535 ? Or is there any addition to their former testimony by this witness ?</p> <p>By defendant’s counsel: We reply that we propose to show what we. say in the offer. We admit that, in our judgment, it will not be anything new nor essentially different from what i» in the evidence that was in the ease before; there may be one or two points wherein it will differ slightly, but not substantialty- .....</p> <p>..... By tire Court: Unless the plaintiffs desire this evidence to go in, with the explanation made by defendant to the question of the court, the objection is sustained. Exception for defendant. (Assignment of error.)</p> <p>The court below directed a verdict for the plaintiff for $1,-090.83.</p> <p>This evidence, if believed by the jury, would clearly show that the note was signed, subject to the agreement that Mr. Heydt- was only to pay interest whenever Mrs. Boyej’ wanted it during her lifetime, and the principal never. And this brings the case fully within Lyon v. Huntingdon Bank, 14 Serg. & P. 288.</p> <p>Advancement is a question of intent. That intent must be proven to have existed at the time of the transaction, and by the contemporary acts and declarations of the parties. Merkel’s Appeal, 89 Pa. 348.</p> <p>When once the money has been handed over and the gift made, “the legal inference” cannot be that the purpose was changed; but we have, besides, the evidence that it was not changed.</p> <p>There is a class of cases in which this court has always admitted parol evidence of what- transpired before the execution of a writing to be given to contradict or vary the terms of the writing. Stubbs v. King, 14 Serg. & B. 206, and Frederick v. Campbell, 14 Serg. & B. 293; Bowman v. Bittenbender, 4 Watts, 290; Elagler v. Pleiss, 3 Bawle, 345.</p> <p>relied on Frey v. Heydt, 116 Pa. 601, 11 Atl. 535.</p>

•January Term, 1888, No. 165, E. D., Error to Common Pleas No. 2 of Philadelphia County to review a judgment for the plaintiff for want of a sufficient affidavit of defense in an action of assumpsit, December Term, 1887, No. 118.

January Term, 1888, No. 220, E. D., Error to Common Pleas No. 4 of Philadelphia County to review a judgment for the defendants upon the report of a referee under the act of May 14, 1874, in an action of assumpsit, June Term, 1886, No. 247.

January Term, 1888, No. 152, E. D., Appeal from a decree of the Orphans’ Court of Philadelphia County dismissing a petition for an order to pay, etc., January Term, 1882, No. 124. The facts are stated in the opinion. The money that was paid by the administrator was in the nature of a distribution to the par ties which forms no part of the administration account. Pittenhouse v. Levering, 6 Watts & S. 190; Yundt’s Estate, .6 Pa. 35.

January Term, 1888, No. 234, E. D. Error to Common Pleas No. 1 of Philadelphia County to review a judgment of compulsory nonsuit in an action of assumpsit, June Term, 1885, No. 161. Held: to imply a promise that she would repay him the auction duty, which he was required to pay by the excise commissioners.

July Term, 1887, No. 5, E. D., Error to the Common Pleas of Clinton County to review a judgment on a verdict for the defendant in an action of assumpsit, September Term, 1886, No, 22.

January Term, 1881, No. 443, E. D., Appeal from a decree of Common Pleas No. 1 of Philadelphia County distributing a fund paid into court under proceedings for the assessment of damages for the taking of land late of Thomas S. Ellis, deceased, by the Baltimore & Ohio Kailroad Company, December Term, 1885, No. 865.

<p>January Term, 3887, No. 376, E. D.,</p> <p>Appeal from a decree of Commou Pleas No. 3 of Philadelphia County dismissing a bill in equity, September Term, 1882, No. 402.</p> <p>Reported below, Iredell v. Klemm, 3 Pa. Co. Ct. 137.</p> <p>This was a bill filed by Joseph F. Iredell against William Gr. Klein m and John Klemm.</p> <p>The plaintiff alleged in his bill that about March, 1872, he and the defendants entered into copartnership for the sale and purchase of notions, etc., at 25 North Third street, Philadelphia; that he kept the books; that in 1875 he had drawn $1,800 for his own use, the business warranting it; that in 1875 a plot or conspiracy was formed between the defendants to drive him out of the firm; that to that end an accountant was called in separately by the defendai.ts to examine the books without his consent, and in violation of his rights; that the accounts were then speciously and fraudulently perverted, and certain moneys he had drawn, with the full knowledge of defendants, were then called by them fraudulent appropriations; that counsel was retained by defendants, and his advice, on the facts presented to him, was misstated to plaintiff, and he made to believe that he must -withdraw from the firm under any conditions they might impose; that under this pressure he was forced to retire from the firm, receiving a due bill for $10,000, $8,000 of his interest in the firm being retained to cover the falsely alleged deficiencies, and the current year’s business was to be settled and the profits divided; that his share of the profits -was in excess of the amount he had drawn; that after this adjustment, which he had submitted to, he was made the subject of another fraudulent conspiracy on the part of the defendants to deprive him of half the amount of the due bill and his share of the profits of 1875; that in pursuance of said conspiracy, when he presented the due bill for payment, it -was refused, and he was told that under advice of counsel they had resolved to prosecute him criminally; that these representations were false and untrue, and so known by defendants, as they had been advised differently; that under the pressure of these threats, he was compelled to surrender the due bill, receiving but $5,000; that his share of the profits for 1875 had not been paid to him; and that the knowledge of the fraudulent conspiracy had just come to him.</p> <p>He therefore prayed that an account should be stated of the partnership dealings; that payment b3 decreed to him of all sums found to be due him; that the $5,000 balance of the dire bill be decreed to be paid him; that his share of the profits of 1875 be paid him; and further relief.</p> <p>The defendants answered that prior to September 11, 1875, 'they discovered that the plaintiff had falsified his accounts, made false entries in the books and omitted to charge himself with moneys received, and he had been informed of the discoveries ; that in consequence of their discoveries and under the •advice of counsel it was agreed between the plaintiff and defendants to dissolve the firm, and a notice to that effect was ■signed and advertised on September 30, 1875; that a written agreement was also executed by plaintiff and defendants on September 14, 1875, whereby the plaintiff sold defendants his entire interest in the firm; that accounts were submitted to plaintiff from the books, and he admitted the error complained of; that they subsequently discovered additional discrepancies, of which the plaintiff was notified and which he admitted; that all matters of business relating to the firm were settled between the plaintiff and defendants prior to November 24, 1875 ; that they made him a final payment, and obtained from him a. written release under seal, dated November 23, 1875, of all claims against the late firm and the defendants individually — since the execution of which they had had no business relations with the plaintiff. They, therefore, answered that their further defense was the statute of limitations, and prayed to be dismissed, -etc. ■-■ ' - - ■■ - • .....</p> <p>The master, William E. Johnson, Esq., found the following facts:</p> <p>Iredell, the plaintiff, entered into partnership with the defendant, William Gr. Klemm, about 1867, to conduct the furnishing goods and notion business in Philadelphia, under the firm name of Klemm & Iredell. In 1872 the defendant, John Klemm, was admitted as partner, the firm name remaining unchanged. Iredell kept the books, and the Klemms did most of the buying and selling. The profits were equally-divided.</p> <p>In August, 1875, while Iredell was taking his vacation, the •other partners employed an expert accountant to examine the books of the firm. This expert found that Iredell had made incorrect entries, by which it- appeared that he had appropriated the money of the firm to a greater amount than he was entitled to draw out by the partnership agreement. He appeared to have thus improperly taken somewhere between $2,800 and ■$3,200. The exact amount was not shown by the proof. On finding these inaccuracies in the books, the defendants consulted counsel, the late J. Gordon Brinckle, who advised the defendants that Iredell had committed no crime, but that they had better dissolve the firm; and Mr. Brinckle thereupon prepared an agreement of dissolution. On Iredell’s return to the city, the defendants called him aside, told him of the inaccuracies in the books and at once produced the agreement of dissolution, which Iredell executed. A day or two later, Iredell agreed to take $10,000 for his interest in the firm, to be paid in instalments. This agreement was put in writing and executed under the seals of the parties September 14, 1875, and a due bill for the $10,-000 was given to Iredell.</p> <p>In October, 1875, Iredell received $3,000 on account of the due bill. With this money he opened a store near the defendants and in the same line of business with them. This greatly incensed the Klemms. They at once determined to punish Iredell for thus attempting to compete with them in business, and concluded not to pay the balance of the due bill held by him. William G. IClemm then met Iredell and falsely told him that they had discovered discrepancies in their books in addition to those of which they were informed at the time the $10,000 due bill was given, and demanded the immediate surrender of the due bill. William G. Klemm followed this up by sending the expert, wdio had remained with the Klemms as their bookkeeper, to Iredell, to- compel the surrender by threats of immediate arrest, and to falsely tell him that they had been advised by counsel that they could put him in the penitentiary, and that he was in serious and imminent danger of being convicted of embezzlement. Iredell called upon the defendants at once. They repeated the false statements and threats, and so deceived and frightened Iredell that he agreed to surrender the due bill. The defendants at once produced a release, previously prepared, and Iredell signed it. After the paper was signed, William G. Klemm promised to give Iredell $2,000. This he subsequently did, with a note at sixty days, which was paid at maturity.</p> <p>Iredell thus received $3,000, and subsequently $2,000 from the defendants on account of the due bill for $10,000, and was by their fraud deprived of his interest in a lucrative business worth on the day the due bill for $10,000 was signed, at least $18,000. By reason of failing to pay their due bill, the defend ants compelled Iredell to retire from the business in which he had started. The first knowledge Iredell had of the conspiracy was derived from the expert, immediately before this bill was filed, in November, 1882.</p> <p>The master reported a decree for the plaintiff in accordance with the prayer of the bill.</p> <p>The defendants filed, inter aMa-j the following exceptions, alleging that the master erred: (2) In not finding as a material fact in the ease, that the plaintiff had placed the due bill in the hands of his counsel, J. Alexander Simpson, for collection; that he informed Mr. Simpson of the threats, and that, after the interview at the store, he got this due bill from Mr. Simpson and delivered it to the defendants; (5) in reporting that the note was not given in consideration of the release; (13) in reporting that the plaintiff and defendants were copartners, and an altogether different measurement of their conduct towards one another is demanded, than that measurable of the conduct of men dealing at arm’s length; (14) in finding that any influence was exerted by the defendants upon the plaintiff, which constituted duress, or which prevented the plaintiff from being a free agent, and not equal to protecting himself when surrendering the due hill, giving the release and receiving in consideration thereof from the defendants their note for $2,000; (17) in finding that the release was no deed and valueless in the possession of anyone seeking to enforce it, and that the defendants could not avaii themselves of any protection that might otherwise be derivable from it; (22) in not finding that the plaintiff’s right to recover was barred by the surrender of the due bill and the delivery of the release; (23) in reporting that there should be a decree in favor of the plaintiff; that the deed of release should he avoided and set aside, and be delivered up to be canceled and forever annulled; (24) in not finding as a fact that the defendants were guiltless of a conspiracy to deprive the plaintiff of one half of his $10,000 due hill as averred in the bill, there being no evidence of such a conspiracy between the defendants, and the testimony of the plaintiff’s witness positively denying such a conspiracy; (30) in reporting that the defendants should be ordered and decreed to pay unto the plaintiff the sum of $5,000, with interest thereon from September 14, 1875, to wit, the aggregate sum of $7,750; and (31) in not reporting that tire bill should be dismissed at the cost of the plaintiff.</p> <p>The court below sustained the exceptions quoted, and Heed, J., delivered the following opinion:</p> <p>No benevolent exercise of equity power can under the law save the plaintiff in this case from the unhappy consequences of his own deliberate acts. The eloquence; too, and kindly sophistry of the master do not convince. And the plaintiff, who had secretly wronged his firm by talcing money from the common fund beyond that to which he was entitled, and by making false entries in the books to conceal this, who, when detected, made his peace with his partners, who not unaided by professional advice entered into a later compact with them and accepted the money which his agreement called for, and who then let seven years go by without a protest, cannot- now demand a chancellor’s help to reinstate him under the earlier and to him more favorable contract which was quite done away with by the later one. A suitor, himself so culpable, must make out against the defendants a case of oppression and late discovered conspiracy of a serious character and by irrefutable evidence very different from anything appearing before us here. The conduct of the defendants, whether or not it was ungenerous, was not unjust; and had it been so- the plaintiff was precluded from availing himself of the other’s wrong.</p> <p>The second, fifth, thirteenth, fourteenth, seventeenth, twenty-second., twenty-third, twenty-fourth, thirtieth, and thirty-first exceptions are sustained, and the bill dismissed, at the costs of the plaintiff.</p> <p>The assignments of error specified substantially the action of the court below in sustaining the exceptions and dismissing the bill.</p> <p>The facts proven in the cause disclose fraud on the part of the defendants. No authority need be submitted showing that this court has equity jurisdiction in cases of fraud. Here the plaintiff claims that, through the fraud of the defendants, he was induced to surrender for nothing a due bill upon which $7,000 were yet unpaid. This entitles the plaintiff to a decree. Robins v. Kitchen, 8 Watts, 390; Whelen’s Appeal, 70 Pa. 425; Harris v. Tyson, 24 Pa. 360,.64 Am. Dec. 661; Perris v. Henderson, 12 Pa. 49, 51 Am. Dec. 580; Abrahams v. Hunt, 26 Pa. 49.</p> <p>Here the relation subsisting between the plaintiff and the defendants was such that the plaintiff was in a position to be easily deceived by them.</p> <p>Constructive fraud often exists where the parties to the contract have a special, confidential, or fiduciary relation which affords the power and means to one to take undue advantage of or exercise undue influence over the other; wherever, from such relation, considerable authority or influence necessarily exists on the one side, and a corresponding reliance and confidence is placed on the other, a party will not be suffered to abuse this authority or influence by extracting any advantage to himself. Darlington’s Appeal, 86 Pa. 512, 27 Am. Rep. 726.</p> <p>Equity not only watches over those defined relations of parties, but it scrutinizes the undefined relations of friendly habits of intercourse, personal reliance, and confidential advice. It is well known that habits of kindness, confidence, and trust grow between neighbors and friends; and if advantage is taken of such relations to obtain an unfair bargain, equity will set it aside or convert the offending party into a trustee. Perry, Tr. par. 210.</p> <p>The plaintiff never became aware of the fraud that had been ■practised upon him until a short time before the bill in the cause was filed. The statute does not begin to run until the discovery of the fraud. Perris v. Henderson, 12 Pa. 49, 51 Am. Dec. 580; Rush v. Barr, 1 Watts, 110; Pennock v. Preeman, 1 Watte, 401; Mitchell v. Buffington, 10 W. N. C. 361.</p> <p>The statute of limitations is applied with the same effect in a court of equity as in a court of law. Hamilton v. Hamilton, 18 Pa. 20, 55 Am. Dec. 585; Bank of United States v. Biddle, 2 Pars. Sel. Eq. Cas. 31; Randel v. Ely, 3 Brewst. (Pa.) 270: Todd’s Appeal, 24 Pa 429.</p> <p>A court of equity will not grant relief where the statute of limitations has run against the plaintiff’s claim, after a complete cause of action has accrued. Waterman v. Brown, 31 Pa. 161.</p> <p>In the absence of evidence the answer must be taken as true. Paul v. Carver, 24 Pa. 211, 64 Am. Dec. 649.</p> <p>Against the responsive denial of defendants this would, according to the practice in equity, require two witnesses, or one witness and strong corroborative circumstances. Pusey v. Wright, 31 Pa. 394; Eberly v. Groff, 21 Pa. 251; Bank of United States v. Beverly, 1 How. 134, 11 L. ed. 75; Audenreid’s Appeal, 89 Pa. 114, 33 Am. Bep. 731.</p> <p>The rule is that a chancellor invariably refuses to decree on the uncorroborated testimony of a single witness.. Brawdy v. Brawdy, 7 Pa. 157; Phillips v. Meily, 15 W. N. C. 227.</p> <p>Here there was only one witness — the plaintiff.</p> <p>There are no facts in this case which bring it within the doctrine of duress per minas, or of any kind as defined by this couifi:</p> <p>The constraint which takes away free agency and destroys the power of withholding assent to a contract must be one which is imminent and without immediate means of prevention, and such as would operate on a person of reasonable firmness of purpose. Miller v. Miller, 68 Pa. 486; Wharton, Contr. 199, § 148.</p> <p>A threat to withhold payment of a debt, or refuse performance of a contract, or to do an injury which may at once be redressed by legal process, is not duress per minas. ■</p> <p>A misrepresentation of a matter of law does not constitute fraud at law, because the law is presumed to be equally within the knowledge of all the parties. Kerr, Fraud & Mistake, 90, 184, 185.</p> <p>The intervention of an independent third party or adviser is an important ingredient in showing the fairness of a transaction. Cooke v. Lamotte, 15 Beav. 240.</p> <p>If a solicitor be employed, there is always strong prima facie evidence that the party for whom he was acting knew the nature of the transaction; in all cases where an independent legal adviser or .solicitor is employed, the evidence that everything that was necessary to be known had been brought to the knowledge of his employer would be conclusive. De Montmorency v. Devereux, 7 Clark & F. 188.</p>

January Term, 1888, No. 207, E. D., Certiorari to the Quarter Sessions of Philadelphia County to review a decree appointing a jury and a master in proceedings to condemn a turnpike and free the same from toll. The facts are stated iu the opinion.

July Term, 1887, No. 147, E. D., Error to the Quarterly Sessions of Clinton County to review a judgment discharging an order for the removal of a pauper, February Session, 1886, No. 16. Upon discharging the order the court, Mayer, P. J., filed the-following opinion, in which the facts are stated: Clara Hoffman was a pauper and chargeable to the poor district of the city of Lock Haven.

January Term, 1888, No. 224, E. D. Error to Common Pleas No. 1 of Philadelphia County to review a judgment on a verdict in favor of the plaintiff in an action of scire facias sur municipal claim, March Term, 1875, No. 121. It appeared at the trial that the plaintiff had laid water pipe in front- of the defendant’s property and claimed therefor the statutory rate of $1 per foot front, which the defendant refused to pay.

January Term, 1887, No. 417, E. D., Error to the Common Pleas of Susquehanna County to review a judgment for the defendant non obstante veredicto in an action of trespass on the case, April Term,… Held: that the lower owner could not recover, because be sustained no actual injury. So, too, in tbe case of tbe Pennsylvania R. Co. v. Miller, 112 Pa. 34, 3 Ati. 780.

January Term, 1888, No. 155, E. D., Appeal from a decree of Common Pleas No. 1 of Philadelphia County imposing on the defendant in Taylor’s Appeal, 7 Sad. Pep. 466, all the costs in the court below. The facts of the case will be found in Taylor’s Appeal, 7 Sad. Pep. 466. -The court below, on the opinion in that case, entered a decree ordering the defendant, Caleb N. Taylor, trustee, to pay all the costs other than the costs of the appeal to the supreme court.

<p>Where the employees of a contractor for the briek work of a building erect (not because expressly required by the contract but in order to enable them to do the work) a scaffold at a great height, the contractor is not liable in damages for the death of a painter employed by the owner of the building, who is killed while passing over the scaffold, for his own convenience, by the slipping of a putlog carelessly placed, and the consequent fall of the scaffold to the ground.</p> <p>Cited in Roddy v. Missouri P. R. Co. 104 Mo. 234, 12 L. R. A. 749, 24 Am. St. Rep. 333, 15 S. W. 1112.</p> <p>Note. — As to vice prineipalship as determined with reference to the character of the act which caused the injury, see the exhaustive review of authorities relating to the various phases of the subject in note to 'Lafayette Bridge Co. v. Olsen, 54 L. R. A. 33.</p>

January Term, 1888, No. 14, E. D., Certiorari sur appeal from a judgment of the Quarter Sessions of Sullivan County in the matter of the election of associate judge, December session, 1886, No. 3. November 30, 1886, the petition of E. A. Strong and others was presented to the quarter sessions contesting the election of John Yonkin, 2d, to the office of associate judge of Sullivan county.

<p>Where a building -with a brick floor is let for a roller skating and bicycling rink, -with a covenant in the lease that all improvements shall •be tbe property of the lessor, a wooden floor laid by the le.saee is an improvement within the meaning of the covenant, and is not subject to exe■cution upon a judgment against the lessee.</p> <p>Note. — Ordinarily, fixtures erected for trade purposes by the tenant may be removed at the expiration of his term (Heffner v. Lewis, 73 Pa. 302; Seeger v. Pettit, 77 Pa. 437, 18 Am. Rep. 452); but not after (Davis v. Moss, 38 Pa. 346; Darrah v. Baird, 101 Pa. 265). And the tenant may recover in trover, where the landlord wrongfully prevents removal. Watts v. Lehman, 107 Pa. 106. But a different rule applies where the agreement provides for the keeping of the property upon the premises after the term has ended. Jermyn v. Dickson, 3 Luzerne Legal Reg. 100. In such case the landlord may maintain trover, though the property be removed during the term. Morgan v. Negley, 3 Pittsb. 33.</p>

January Term, 1888, No. 111, E. D. Error to Common Pleas No. 2 of Philadelphia County to review a judgment discharging a rule for judgment for want of a sufficient affidavit of defense in an action of assumpsit, June term, 1887, No. 492.

January Term, 1888, No. 24, E. D., Certiorari to the Quarter Sessions of Lackawanna County to review a decree dismissing proceedings on a petition to make a turnpike and plank road a public road, free from tolls and toll gates.

January Term, 1887, No. 352, E. D., Appeal from a decree of the Common Pleas of Berks County confirming the report of a commissioner distributing proceeds of a sheriff’s sale, on lev. fa., February Term, 1884, No. 4. The commissioner, Charles C. Kehr, Esq., reported, inter alia, as follows: Upon proceedings in partition had upon the estate of Solomon Faust, deceased, Elizabeth Faust, widow of said decedent, and William Faust were appointed trustees to sell his real estate.

January Term, 1888, No. 60, E. D., Error to the Common Pleas of Berks County to review a judgment on a verdict for the plaintiffs in an action of trespass, April Term, 1886, No. 74. This action was brought hy John M. Long and Susan Long, his wife, for use of said Susan Long, against Levi Bennethum, a constable, to recover damages for an alleged wrongful levy and sale of certain articles claimed by Susan Long as her own property.

July Term, 1886, No. 159, E. D., Er-xor to the Common Pleas of Schuylkill County to review a judgment of nonsuit in an action of covenant, January Term, 1881, No. 31. In 1868, Peter W. Sheafer and John Gilbert were the owners of a tract of land situate in West Shenandoah, Schuylkill county, Pa., and by lease of said date granted, demised, and let for a term of fifteen years from January, 1SG9, to Richard Heckscher, August 0.

July Term, 1887, No. 206, E. D., Appeal from an order of the Common Pleas of Lackawanna County in equity commanding defendants to deliver up possession of lands in their possession, January Term, 1883, No. 5. In 1883 Helen M. Kelsey and others filed a bill in equity for partition against Joseph Church and Charles J. Church.

January Term, 1888, No. 326, E. D., Apjseal by plaintiff from a decree of the Common Pleas of Lackawanna County dissolving a preliminary injunction, November Term, 1887, No. 4. On November 21, 1887, the Moosic Mountain & Carbondale Railroad Company filed a bill against the Delaware, Lackawanna, & Western Railroad Company, which in substance was as follows: 1. That plaintiff is a corporation chartered under the laws of Pennsylvania; 2.

July Term, 1887, No. 51, E. D., Error to the Common Pleas of Berks County to review a judgment in favor of the plaintiff in an action of debt upon a policy of life insurance, June Term, 1884, No. 53.

January Term, 1888, No. 6, E. D., Appeal from a decree of the Orphans’ Court of Pike County dismissing a petition for a citation. The facts were stated in the opinion of the court below by Seely, P. J., which was as follows: In the year 1846 the last will and testament .of James Wallace was proved before the register of wills for Pike county, and letters testamentary were granted his three sons, John H. Wallace, E. B. Wallace, and James S. Wallace.

<p>Under the act of June 16, 1836, §§ 6, 7, it is not necessary in every case where the award of referees appears to be excessive in amount to refer the cause back to them.</p> <p>Full and complete justice may be done by making an order that unless a portion of the sum awarded be remitted by the plaintiff the award will be set aside.</p> <p>Note. — The same determination was made in Reynolds v. Creveling, 177 Pa. 267, 35 Atl. 686, and in Gunn v. Bowers, 126 Pa. 552, 17 Atl. 893.</p>

January Term, 1888, No. 174, E. D., Error to the Common Pleas of Berks County to review a judgment in favor of the plaintiff in an action of assumpsit, November Term, 1885, No. 48.

January Term, 1887, No. 269, E. D., Appeal from a decree of the Common Pleas of Schuylkill County refusing an injunction and dismissing, conditionally, a bill in equity, July Term, 1885, No. 3. Upon entering the decree Bechtel, J., delivered the following opinion, in which the facts are stated: The defendant denies the right of the plaintiff to maintain this action, and alleges that the commonwealth, at the instance of the attorney-general, is the proper party.

<p>A borough ordinance which provides that the street committee may enter upon any lot in the borough and cut drains thereon to take water from the streets and highways, and imposing a penalty upon any lot owner who shall close or obstruct such drains, but which does not provide for the payment of damages to private property invaded thereunder, is (there being no provision in any act of assembly on which the ordinance is founded, for the ascertainment and prepayment of such damages) obnoxious to § 8 of article 16 of the Constitution of 1874, and therefore void.</p> <p>Note. — The act of May 16, 1891 (P. L. 75), amended by the act of June 12, 1893 (P. L. 459), gave authority to boroughs to take land for sewers, ditches, and drains. To take advantage of this legislation, its provisions for the assessment of damages must be pursued. Strohl v. Ephrata, 178 Pa. 50, 35 Atl. 713.</p> <p>“The constitutional provision that private property shall not be taken for public use without compensation applies with full force to proceedings to acquire a right of way for a sewer or drainage ditch; and it is immaterial that the easement only is to be taken, or that the right of way is across the property of a railroad company or other public service corporation.” Earnham, Waters, p. 1065.</p>

January Term, 1888, No. 341, E. D., Error to the Common Pleas of Erie County to review a judgment of nonsuit in an action of ejectment, September-Term, 1878, No. 198. The action was brought by John 0.

<p>January Term, 1888, No. 99, E. D.,</p> <p>Error to the Common Pleas No. 4 of Philadelphia County to review a judgment in favor of plaintiff rendered upon a judgment of the circuit court of Norfolk county, Virginia, in an action of debt upon a promissory note, September Term, 1886, No. 174.</p> <p>A certified copy of the record from the circuit court of Norfolk county, Virginia, showing that judgment had been rendered therein for plaintiff, was filed by plaintiff, in an action brought against defendants, in the court below, and the defendants filed the following affidavit of defense thereto:</p> <p>W. 1. Lance, being duly sworn, says he has a just and legal defense to the whole of the plaintiff’s claim herein as follows, to wit, deponent believes and avers that the whole of plaintiff’s claim has been paid in full and that deponent is not indebted to the plaintiff in the amount sued for, nor any other amount whatever. Deponent and others in the year 1873 did business at Norfolk, in the state of Virginia, and conducted and prosecuted same for a period of three years, under the name and style (inter alia) -of Lance &Sons, and the Norfolk Manufacturing Company. Defendants became involved in litigation and on application a' receiver was appointed by the proper court and under his appointment the said receiver, by virtue thereof and an order from the. proper court, demanded, seized, and took possession of all the effects and property, personal and otherwise, of defendants, aggregating in value between $20,000 and $30,000 and totally and wholly excluded and deprived deponent thereof and therefrom. The plaintiff and all others having had dealings or transactions of any kind or description with defendants were apprised of these facts and proceedings and were duly and properly notified, and advised to make presentment of all claims- and demands of every kind and character, if any they had against defendants, to said receiver for adjustment and payment. Defendant avers that at the time aforesaid the said receiver had sufficient and ample estate and property of defendants in his hands and possession to pay off and satisfy all debts, claims^ and demands, including claims in suit due and owing by defendants and thereafter still leave a balance and surplus remaining in his (the receiver’s.) hands in favor of defendants. Deponent believes that said claim herein was paid and satisfied in full by the said receiver aforesaid. • Deponent avers that he had no knowledge, intimation, or information, at the time said suit (as disclosed by copy of record filed herein) had been brought and instituted as in said record appears; that no summons, notice, or process of any kind whatever was-ever served upon him to appear therein, to answer same; nor was he ever aware, notified, advised, or apprised of said suit and proceedings aforesaid; nor the entering of the judgment against him therein, until the bringing of this present suit in this honorable court at Philadelphia. Defendants believed and still believe that all the claims and demands against them including alleged claim in suit have been fully adjusted, paid off, and satisfied by said receiver aforesaid, and that they are not indebted to plaintiff in any amount whatever. All of which facts defendants expect to be able to prove upon the trial of this cause.</p> <p>The court below entered judgment against the defendants for want of a sufficient affidavit of defense, and this was assigned as error.</p> <p>Justice Sharswood, in Guthrie v. Lowry, 84 Pa. 533 (in which case there 'was an appearance by counsel), said, inter aliar • “Whatever doubts may have been at one time entertained and expressed it is now an incontrovertible position that in an action upon a judgment of the court of a sister state the record may be contradicted by evidence of facts impeaching the jurisdiction of the court by which the judgment was rendered.” See also Williamson v. Berry, 8 How. 540, 12 L. ed. 1189; Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897; Knowles v. Logansport Gaslight & Coke Co. 19 Wall. 59, 22 L. ed. 70; Hill v. Mendenhall, 21 Wall. 453, 22 L. ed. 616; Noble v. Thompson Oil Co. 79 Pa. 354, 21 Am. Ifep. 66.</p> <p>A foreign judgment is conclusive as to the merits, if the court which pronounced it had jurisdiction of the cause and parties. Lazier v. Westcott, 26 N. Y. 146, 82 Am. Dea 404.</p> <p>Although it may be impeached by proof that the defendant was not subject to the jurisdiction of the court. Ferguson v. Mahon, 11 Ad. & El. 179.</p> <p>It is essential to the validity of a judgment of .another state that the court shall have jurisdiction (Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897); and the tribunal which is asked to enforce the judgment may inquire into the jurisdiction of the original form. Penny wit v: Foote, 27 Ohio St. 600, 22 Am. Bep. 340; Folger v. Columbian Ins. Co. 99 Mass. 267, 96 Am. Dec. 747; Stacy v. Thrasher, 6 How. 44, 12 L. ed. 337.</p> <p>It is established (overruling Wetherill v. Stillman, 65 Pa. 105), that one who is sued on the judgment of another state may show that he did not appear and was not served with process, although the record contains a recital of such service or appearance. Starbuck v. Murray, 5 Wend. 148, 21 Am. Dec. 172; Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Knowles v. Logansport Gaslight & Coke Co. 19 Wall. 59, 22 L. ed. 70.</p> <p>A tribunal which decides without hearing the defendant, or giving him an opportunity to be heard, cannot claim for its decrees the weight of a judicial sentence. 1 Smith, Lead. Gas. pt. 2, ed. 1872, p. 1118 — 1120. See also Capel v. Child, 2 Cromp. & J. 558; Bloom v. Burdick, 1 Hill, 130 — 140, 37 Am. Dec. 299; Story, Confl. L.; Chief Justice Marshall in The Mary, 9 Cranch, 126-144, 3 L. ed. 678, 684; Galpin v. Page, 3 Sawy. 93, Fed. Cas. No. 5,206; Picquet v. Swan, 5 Mason, 43, Fed. Cas. No. 11,134; Cooley, Const. Lim. p. 404; Hare & W. notes to 1 Smith, Lead. Cas. p. 838; Hess v. Cole, 23 N. J. L. 116; Boswell v. Otis, 9 How. 348, 13 L. ed. 169.</p> <p>Though the record shows a return of personal service upon the defendants it may be disproved in an action on the judgment, to show want of jurisdiction. Knowles v. Logansport Gaslight & Coke Co. 19 Wall. 59', 22 L. ed. 70, and Starbuck v. Murray, 5 Wend. 148; Board of Public Wor¿ v. Columbia College, 17 Wall. 521, 21 L. ed. 687.</p> <p>Judgments of other states are open to inquiry as to the jurisdiction of the court, and notice to the defendant D’Arcy v. Ketchum, 11 How. 165, 13 L. ed. 648; and Webster v. Keid. 11 How. 437, 13 L. ed. 761; Borden v. Fitch, 15 Johns. 121, 8 Am. Dec. 225; Benton v. Burgot, 10 Serg. & B. 241.</p> <p>The common pleas No. 4 of Philadelphia., in two similar cases, to wit, Scarborough •». Lance, C. P. No. 4, September term, 1886, Nos. 170, 171, on similar affidavits of defease (as filed herein) discharged rules for judgment.</p> <p>In Dorsey v. Dorsey, 7 Watts, 350, 32 Am. Dec. 767. Gibson, Ch. J., says: “It is conclusive that the person of the transgressor was not subject to our jurisdiction . . .; for an attempt to bind him without it, or without hearing or notice, would be extravagant.”</p> <p>Lewis, Oh. J., in Rogers v. Bums, 27 Pa. 527, said: It is a well-settled principle of law, that “where the state has no authority over the person of the defendant, the judgments rendered by its judicial tribunals, though conformable to its legislative enactments, can have no extraterritorial operation.” See algo Steel v. Smith, 7 Watts & S. 451; Story, Const, par. 1307; Bis-sell v. Briggs, 9 Mass. 462, 6 Am. Dec. 88; Shumway v. Still-man, 4 Cow. 292, 15 Am. Dee. 374; Borden v. Fitch, 15 Johns. 121, 8 Am. Dec. 225.</p> <p>A judgment recovered against a nonresident without notice is entitled to no faith or credit out of the state, in which it was rendered. DArcy v. Ketchum, 11 How. 165, 13 L. ed. 648; Sumner v. Marcy, 3 Woodb. & M. 105, Fed. Cas. No. 13,609; Lincoln v. Tower, 2 McLean, 473, Fed. Cas. No. 8,355; Westerwelt v. Lewis, 2 McLean, 511, Fed. Cas. No. 17,446.</p> <p>So far has this principle been extended that it is ruled that in an action on the judgment of a court of another state, the defendant may plead that he was not served with process in the jurisdiction. Wilson v. Graham, 4 Wash. C. C. 53, Fed. Cas. No. 17,804; 6 McLean, 1; 2 McLean, 473 and 5.11; 4 McLean,</p>

January Term, 1887, No. 184, E. D., Error to the Common Pleas of Columbia County to review a judgment in favor of plaintiff in an action of ejectment, Eebruary Term, 1888, No. 52. This was an action in ejectment by Charles G. Murphy against Jane Herron and Charles H. Herron, her husband, Elizabeth B. Jackson and John A. Jackson, her husband, Charles J. Tower and R. M. Cummings, with notice to all térrotenants.

<p>January Term, 1888, No. 56, E. D.,</p> <p>Error to tbe Common Pleas of Columbia County to review a judgment in favor of plaintiff entered by virtue of a warrant of attorney to confess judgment, contained in a bond accompanying a mortgage, September Term, 1887, No. 120.</p> <p>Judgment was entered for plaintiff against defendant, for $3,255; and thereupon defendant presented bis petition to tbe common pleas, praying said court to stay and set aside tbe execution issued in this case, and to strike off tbe judgment,, which petition alleged, substantially, as follows:</p> <p>That on or about tbe 22d of May, 1887, defendant procured a loan of $3,000 from the plaintiff, Thomas Trench, through J. H. Maize, the attorney of said Thomas Trench, with whom all negotiations were had. That at the time of the negotiations it was agreed that the loan should be for five years to be secured by bond and mortgage; and that at the expiration of five years Thomas Trench would not require the principal of the debt, but that it should be further extended for another period of five years or shorter period if defendant, Robison, so desired.</p> <p>And the defendant executed the mortgage and the accompanying bond, relying on the verbal agreement of renewal as aforesaid.</p> <p>Further, the mortgagor in the bond accompanying the mortgage gave a warrant of attorney authorizing the entry of judgment on the bond, but with the following restriction and limitation, — to wit, “The above warrant of attorney not to take effect, except in case of default of payments as provided in mortgage accompanying this bond, and to be confined to the premises described,” — which restriction defendant believes limited the operation of the warrant, to the effect that no general judgment could be entered up against him, but only a judgment in rem; and that no general execution could be issued on any judgment thereon, but only execution against the land described.</p> <p>Notwithstanding the agreement and understanding aforesaid, and notwithstanding the fact that the mortgagor had paid all instalments of interest due prior to the time when the principal came due by the written terms of the mortgage, yet the mortgagee refused to extend the mortgage and the time of the payment thereof, although the mortgagor offered to pay all accrued interest thereon.</p> <p>And the mortgagee has, through his attorney, B. E. Zarr, Esq., confessed a general judgment on the bond against the mortgagor and obligee, which confession, of judgment, entered on the 23d of June, 1887, was not authorized by the warrant of attorney under which he claimed to act, and was not in accordance with the terms of the warrant, but was and is in contravention thereof, and further did allow and confess judgment for more than is justly due the plaintiff, — to wit, the sum of $150 as and for 5 per cent commission on the sum of $3,000 in addition to the principal debt, and seven months’ accrued interest; and forthwith on the same day, to wit, on the 23d day of June, 1887, did cause to issue a fieri facias with clause of general execution against all the goods and chattels, lands and tenements of the obligee for the sum of money so alleged to be due, including the illegal sum of $150; and otherwise has illegally and unjustly oppressed your petitioner, contrary to their agreement made at the time the mortgage was executed and contrary to the terms of the bond and mortgage and the warrant of attorney therein contained.</p> <p>The confession of judgment as entered is set forth in the head note.</p> <p>A rule was granted to show cause why the execution should not be set aside and the judgment stricken off. Sale to be stayed until return of rule.</p> <p>Afterwards the rule was discharged, with the following opinion:</p> <p>■'■'We think the evidence before us is insufficient to set aside the written instrument, and that the judgment will support an execution on which the mortgaged property may be sold; but that other property of defendant cannot be seized and sold upon it. As no effort or threats are made to sell other property of the defendant we are not now required to consider that question.”</p> <p>The defendant specified as error the action of the court below in discharging the rule to show cause, and permitting the execution and judgment to stand.</p> <p>A contemporaneous parol agreement will vary a written instrument, in Pennsylvania, even to the extent of changing its terms. Bown v. Morange, 108 Pa. 69.</p> <p>In entering judgments by virtue of warrant of attorney, the authority must be strictly pursued. Freeman, Judgm. § 543.</p> <p>The judgment should be stricken off whether the attorney be responsive or not. Banning v. Taylor. 24 Pa. 289.</p> <p>The evidence should be of what occurred at the time of the execution of the instrument, not what was said at the times when negotiations were had about the subject matter to be contained in the instrument. Martin v. Berens, 67 Pa. 459; Thomas v. Loose, 114 Pa. 35, 6 Atl. 326, and Jackson v. Payne, 114 Pa. 67, 6 Atl. 340.</p> <p>All the evidence and the circumstances surrounding this transaction refute the claim set up by Robison, that there was a contemporaneous agreement, to extend or renew the loan. In order to sustain such a claim the evidence must be full, satisfactory, and indubitable. Rearich v. Swinehart, 11 Pa. 233, 51 Am. Dec. 540; McGinity v. McGinity, 63 Pa. 38; Martin v. Berens, 67 Pa. 459; Ballentine v. White, 77 Pa. 20; Spencer v. Colt 89 Pa. 314; Rowand v. Finney, 96 Pa, 192; Murray v. Nev York, L. & W. R. Co. 103 Pa. 37.</p>

January Term, 1888, No. 247, E. D. Appeal from a decree of tbe Common Pleas No. 4 of Philadelphia County dismissing exceptions to a master’s report in equity, September Term, 1884, No. 358.

January Term, 1888, No. 340, E. D., Error to tbe Common Pleas of Erie County to remove and review tbe record and proceedings in a scire facias sur forfeited recognizance, in wbicb judgment was obtained against tbe defendants for want of a sufficient affidavit of defense, September Term, 1886, No. 104. On November 20, 1885, a transcript was filed by leave of tbe quarter sessions of Erie county in tbe case of tbe commonwealtb of Pennsylvania against J. J. Sturgeon.

<p>January Term, 1888, No. 271, E. D.,</p> <p>Error to the Common Pleas No. 1 of Philadelphia County to review a judgment in favor of plaintiff in an action by a landlord to recover for the removal of certain articles from the leased premises, September Term, 1884, No. 460.</p> <p>Christian Klopfer was the tenant of a brewery in Philadelphia which he rented of John M. Hummel. Hummel distrained certain goods found on the premises for rent. The goods were sold and bought in by the landlord. One John F. Betz claimed to own the goods by reason of a bill of sale from Klopfer to himself, alleging that he had subsequently rented them to Klopfer. Klopfer having become indebted to other parties judgments were recovered and fi. fas. issued, whereupon Betz laid claim to the goods and interpleaders were awarded between the judgment creditors and Betz, and the latter entered security and took possession of the goods. It was pending application for the interpleaders that the landlord made distraint, and after Betz took possession of the goods he was notified of the landlord’s claim, and upon his refusal to return them Hummel brought this action against him.</p> <p>At the trial, after testifying that he bought the beer cooler, which was among the articles taken away, and at another time had bought a smaller one, that he knew the prices or used to know them, Klopfer was asked, and against defendant’s objection permitted to answer, the question, “What was the value of that beer cooler at the time it was taken away ? And do you know the value of a beer cooler like that one at the time it was taken away ?” [1]</p> <p>The defendant offered in evidence the following sealed instruments and records:</p> <p>Bill of sale, dated May 28, 1883, Christian Klopfer to John F. Betz, for the articles of which conversion was charged.</p> <p>Lease of said articles of same date by John F. Betz to Christian Klopfer.</p> <p>Record of suit, Shaw & Co. v. Klopfer, 2 September term, 1883, No. 536, showing fl. fa. and levy upon said articles, made November 24, 1883, and sheriff’s rule of interpleader May 22, 1884, claimant John F. Betz. Rule absolute May 24, 1884, claimant John F. Betz.</p> <p>Record of suit, Moser v. Klopfer, 3 December term, 1882, No. 442, showing fi. fa. and levy upon said articles, November 10, 1883, interpleader and claimant as above.</p> <p>All of which were rejected by the court. [2] ■ -</p> <p>The defendant offered, inter alia, the following points: '</p> <p>1. If the jury believe from the testimony that the goods in controversy were in the possession of the defendant Klopfer, in the way of trade, then they were not liable to the landlord’s levy and the verdict should be for the defendant</p> <p>Refused. [5]</p> <p>2. If the goods at the time of the levy were in the possession of the sheriff, under an execution issued, the landlord had no right to distrain and the sale by the constable carried no title.</p> <p>Refused. [3]</p> <p>3. If the jury believe that the rent was to be taken out in beer, and Klopfer stood ready to furnish the beer but the landlord refused to take it, the sale by the constable carried no title to the goods to Hummel, the plaintiff, and he cannot recover in this action.</p> <p>Refused. [4]</p> <p>Verdict and judgment having been entered for plaintiff, defendant took this writ, assigning for error: (1, 2) Rulings on evidence; and (3-5) answers to points.</p> <p>The plaintiff below, in levying upon the goods under a landlord’s warrant, and selling them thereunder, acquired no title, for the goods were in the possession of the law; his right of distress was for the time taken from him, and he was compensated for the loss of it by the even more certain and expeditious remedy given him by act of assembly, viz., his claim to the first proceeds from the sale of the property. Smith, Land. & T. 139, note a; Pierce v. Scott, 4 Watts & S. 344; Com. v. Lelar, 1 Phila. 173; Jackson & C. Land. & T. 107, 126, 637, 762.</p> <p>A levy by the landlord under such circumstances was a trespass, and he would be liable in damages to the sheriff. Taylor v. Manderson, 1 Ashm. (Pa.) 130; Pierce v. Scott, 4 Watts & S. 344.</p> <p>Betz’s claim under his bill of sale as against Hummel’s title under the distress sale, the subject of the second and fifth specifications of error, could not be pressed. The exception to the rule that the goods of a stranger found on the premises are liable to distress for rent, in favor of goods of another necessarily put in the tenant’s possession in the way of trade, does not apply to such a case as this. Earns v. McKinney, 74 Pa. 390; Page v. Middleton, 118 Pa. 546, 12 Atl. 415.</p> <p>If the goods are liable under the two executions the subject of the second and third specifications of error, it must be as Klopfer’s property, and Betz cannot be aided by, or stand on the rights of, the execution creditors, who make no claim, and to whose rights he is a stranger. Gilliam v. Tobias, 11 Phila. 313.</p> <p>After the levies the goods remained in the defendant’s possession, and no step was taken to enforce a sale until six months after the levies. Such laches postpones the execution creditors, and subjects the property to distress. Weir v. Hale, 3 Watts & S. 285; Earl’s Appeal, 13 Pa. 483; McHugh v. Malony, 4 Phila. 59.</p> <p>The competency of the witness rests in the discretion of the judge trying the case, requiring a clear, strong, and gross case of abuse of this discretion to warrant the appellate court to interfere with the court below. Ardeseo Oil Co. v. Gilson, 63 Pa. 151, and Sorg v. First German E. St. P. Congregation, 63 Pa. 156; Girard F. Ins. Co. v. Braden, 96 Pa. 83; Allen’s Appeal, 99 Pa. 196, 44 Am. Bep. 101.</p>

July Term, 1887, No. 205, E. D., Error to the Common Pleas of Columbia County to review a judgment in favor of plaintiff, in an action of debt upon contract, December Term, 1883, No. 71. Tbe contract in suit was created by tbe following letters: Hazleton, Pa., August 7, 1882. William H. Yorgey, Bear Gap, Northumberland County, Pa.

January Term, 1888, No. 293, E. D., Error to the Common Pleas No. 3 of Philadelphia County to review a judgment for defendant in a sheriff’s interpleader, December Term, 1883, No. 954. Christian Klopfer, a brewer in Philadelphia, being indebted to John E. Betz, gave him a bill of sale of certain property used in and about the brewery.

January Term, 1887, No. 426, E. D., Error to tbe Common Pleas of Luzerne County to review a judgment for tbe plaintiff in an action on a fire insurance policy, June Term, 1880, No. 279. Elliott, tbe plaintiff below, being tbe owner of a frame building, obtained a policy of insurance tbereon from tbe defendant tbrougb one Fargo, wbo was in tbe babit of procuring insurance for bis neighbors tbrougb regular insurance agents, from whom be received commissions.

January Term, 1888, No. 243, E. D., Error to Common Pleas No. 4 of Philadelphia County to review a judgment for defendant in an action for rent, December Term, 1885, No. 64.

July Term, 1888, No. 13, E. D., Certiorari sur appeal to review the action of the Quarter Sessions of Erie County, in discharging a rule to show cause, February Sessions, 1888, No-52. David H. Burton, appellee, was duly elected tax collector of Millcreek township, Erie county, Pennsylvania, under the act of June 25, 1885; and on March 26, 1888, he presented his bond to the quarter sessions for approval.

July Term, 1886, No. 60, E. D., Appeal from a decree of the Orphans’ Court of Mifflin County dismissing-petitioner’s bill to surcharge an executor, and for other relief.

<p>In an action on a promissory note for $1,200, against the maker, by one who had taken the note from the payee, — Held, that proof that the plaintiff had given the payee, for the note, before maturity, $50 in cash, and had returned to the payee a due bill and certain notes made by such payee, was sufficient to constitute the plaintiff a purchaser for value of the note in suit.</p> <p>Cited in Snyder v. Hancock, 9 Pa. Dist. 11. 159, 161.</p> <p>Note. — By the negotiable instrument act of May 16, 1901 (P. L. 194),. § 25, it is provided that “value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value, and is deemed such whether the instrument is payable on demand or at a future time.”</p>

January Term, 1888, No. 374, E. D., Error to the Common Pleas of Huntingdon County to review a judgment in favor of the plaintiff in an action of trespass, September Term, 1885, No. 12.

January Term, 1888, No. 242, E. D., Error to review a judgment of the Court of Common Pleas of Centre County in favor of defendant in a scire facias sur municipal lien, November Term, 1886, No. 16.

<p>Where the stockholders of a banking- corporation are, by statute, declared individually liable, to the amount of their stock, to creditors and depositors of the corporation, depositors who are also stockholders whose stock has been paid up in full are, on the corporation’s making a general assignment for the benefit of creditors, entitled to participate in the distribution of the fund in the hands of the assignee ratably with other creditors, to the extent of their deposits.</p> <p>Where, however, a stockholder has not paid for his stock in full, the share in the fund otherwise distributable to his claim as a creditor, is to be first applied in payment for his stock in full; and thereafter any balance remaining will be distributable to him as a creditor.</p> <p>A bank certificate of deposit in the following words: “A. B. has deposited in this bank $100, payable to the order of himself; interest 4 per cent if left 6 months, 5 per cent if left 12 months,” dated and signed, is not a negotiable instrument, and when transferred by indorsement is subject, in the hands of the transferee, to all equities subsisting between the bank and the depositor; and when such a depositor is a stockholder in the bank, and his stock has not been paid in full, the pro rata amount of the fund in the hands of the assignee of the bank for the benefit of creditors apportionable to such certificate of deposit, is, notwithstanding the transfer of the certificate, to be first applied on the indebtedness of the depositor to the bank on account of his unpaid stock subscription.</p> <p>Note. — Stockholders and directors who are bona fide creditors may share in the assets of the insolvent bank (Inland Ins. Co.’s Estate, 9 Lane. Bar, 119; Craig’s Appeal, 92 Pa. 396; Hammond’s Appeal, 123 Pa. 503, 16 Atl. 419) ; but not until their liabilities are satisfied (Hogg’s Appeal, 88 Pa. 195). The fact that the par value of stock, paid in full, was reduced one half, will not relieve the stockholder from his liability. Dreisbach v. Price, 133 Pa. 560, 19 Atl. 569.</p>

<p>. A married woman lias a right to loan money to her husband and to take security therefor, or to receive payment thereof by conveyance of his property. He has a right to prefer the claim of his wife or of any other creditor. She must satisfy the jury, however, that the money loaned was actually hers — not given to her by her husband, and not earned by her while married to him; for by the law of Pennsylvania the earnings of a married woman belong to her husband.</p> <p>Where a man receives as a loan money from his wife, which came to her from her father’s estate or other outside source, he has a right to give her a note for the same, and secure the payment of such note by a mortgage on his land, even if he was indebted to others, or was in failing circumstances.</p> <p>To avoid a deed for fraud, it is not enough to show that the vendor intended to hinder, delay or defraud his creditors, but it must also be shown that the vendee received the deed with like intent to hinder, delay or defraud the creditors of the vendor; and the burden of proof is always upon the one alleging the fraud.</p> <p>An instrument which in the form of an absolute deed is in reality a security for a claim, is a mortgage and not a deed, and where there is no defeasance recorded, it is but an unrecorded mortgage, and its lien is postponed to that of a judgment entered subsequent to the execution of such instrument.</p> <p>Note. — It will be observed that the deed in this case was executed prior to the act of June 8, 1881, P. L. 84, requiring that the defeasance be in. writing to change the deed absolute upon its face into a mortgage.</p>

January Term, 1888, No. 377, E. D., Error to the Common Pleas of Lozeme County to review a judgment in favor of the plaintiff in an action of debt on a fire insurance policy, October Term, 1885, No. 589. Attached to the policy in suit was what purported to he a “Copy of Application,” hut before the word “Applicant,” at the foot thereof, there was a blank, and no signature of an applicant appeared anywhere on the paper.

January Term, 1888, No. 37, E. D., Appeal from a decree of tbe Common Pleas of Cumberland County distributing tbe.fund in the hands of the assignees of Samuel W. Bratton, under a voluntary assignment for the benefit of creditors. The appeal was taken by Augustus Bichey, the appellees being Matthew B. Boyd, Thomas C. Scouller, and Margaret S. Bratton.

<p>January Term, 1887, No. 340, E. D.,</p> <p>Certiorari sur writ of error to tbe Court of Quarter Sessions of Huntingdon County to review a conviction for selling liquor to men of-known intemperate habits, December Term, 1886, No. 19,</p> <p>The indictment was under the act of 1854, 8 Purdon’s Digest, p. 1082, § 45.</p> <p>Before the jury was sworn or plea entered, defendant moved to quash the indictment, “because the grand jury in their action upon the bill set before them, ignored it, and decided not to return a true bill; and that after such action by the grand jury, the district attorney appeared before them and vehemently addressed them, urging them to find a true bill; and if they would not do so upon the evidence then before them, he asked them to give him time to furnish further evidence, which the grand jury did; and further evidence was furnished by the district attorney sending ■ after persons who were not at the court house at the time when the grand jury ignored the bill; after which the district attorney again addressed the grand jury, and urged them to reverse their former action and return a true bill, which at the instance of the district attorney they did- — these facts to be proved by members of the grand jury, whom the defendant proposes to call and examine in open court.”</p> <p>The district attorney thereupon “denied the effect in law of the facts as stated; that it is not sufficient to quash the indictment ; and that there is no allegation contained in the motion as made to the indictment that any undue influence was exercised; that the indorsement on the indictment of the grand jury is conclusive evidence of their finding, the bill having been returned by them regularly, with proper indorsement thereon; that there is no interlineation or erasure on the bill, or any memoranda or record of any other finding than that returned by them as indorsed on the bill.”</p> <p>The court, Eurst, J., denied the motion. 1</p> <p>The defendant having pleaded not guilty, the trial proceeded.</p> <p>The court charged the jury substantially as follows:</p> <p>Adam Zeigler, this defendant, stands indicted for a violation of the laws of this commonwealth regulating the sale of liquor.</p> <p>The allegation in the indictment is that within the last two years he has sold, or caused to be sold, liquor to men of known intemperate habits, to be used as a beverage. Whether he is guilty of this offense or not, under the evidence, is the issue you are sworn to try and determine by your verdict.</p> <p>It is not denied that Mr. Zeigler has a license to keep a hotel in the borough of Huntingdon. The laws of this commonwealth authorize the courts, in fact require the courts, to grant licenses under certain restrictions for the sale of liquor, for the accommodation of the people and the traveling community; but while this authority is given, there are certain limitations, certain restrictions, regulating the sale of intoxicating drinks. By that license he is not permitted to sell to minors, nor on the Sabbath Bay, nor on the day on which elections are held, nor is he permitted to sell to men of known intemperate habits, or to men when drunk, or persons who are insane; to that class of persons the license gives him no authority to sell.</p> <p>This defendant is indicted for a violation of the law in the sale either by himself or his authorized agent, of liquor as a beverage to men of known intemperate habits, in the borough of Hunting-don, in this county. The section of the act under which he is indicted is as follows: “The wilful furnishing of intoxicating drinks, by sale, gift, or otherwise, to any person of known intemperate habits, as a beverage; a person so offending shall be deemed guilty of a misdemeanor.”</p> <p>[The commonwealth alleges in this case that this defendant, not only himself sold liquor to men of this class as a beverage, within the last two years, but that he caused it to be sold through his agents — Mr. Decker and Mr. Black — and that he permitted them to sell to this prohibited class. The allegation on the part of the commonwealth is that such unlawful sales have been made, -within the last two years, to persons by tire name of Henry Merrits, George Numer, S. H. Decker, Charles Woods, and George H. Fleming, persons whom the commonwealth alleges are men of known intemperate habits, and that the sales were made by the defendant himself, as well as by his agents. This-is the allegation on the part of the commonwealth.] 2</p> <p>The word “intemperate” means any immoderate or excessive use of intoxicating liquors. A man of known intemperate habits is one whose habit for intemperance is known in the community. Just as a man is known in the community either as a good citizen or a bad citizen, so are his habits known to be either that of a temperate man or intemperate man; and it must bé his character in that respect in the community in which he lives. This is the meaning and spirit of the act of assembly.</p> <p>[A wilful act is an act that is not done by surprise or by accident;] it means an act that is governed by one’s will, a voluntary act; in that sense, the word “wilful” is used in this act of assembly. 3</p> <p>You have heard the testimony on the part of the commonwealth and on the part of the defendant, with regard to the alleged sales to these different persons; and it is not the purpose of the court to review it in detail. You will recall and remember it. We will but call your attention generally to the subject-matter of the testimony, and will endeavor to instruct you as to the law applicable to the facts in this case. Charles Woods and George H. Fleming both have testified as witnesses in this case. They both testified that they purchased liquor from Mr. Zeigler himself, and from his bar tenders. We will not repeat the testimony to you, but you will remember it distinctly. .They have also testified as to their desire for drink and their habits. There has also been other testimony on the part of the commonwealth, both in addition to the known intemperate habits of these two mén, as well as others charged to be men of intemperate habits, mentioned in this indictment. All this testimony is for your consideration upon the question of tire guilt or innocence of this defendant.</p> <p>On the other hand, the defendant denies: First, that he sold any liquor himself, to these men; and secondly, he denies that they are men of known intemperate habits in the community. You will remember the testimony of himself and his witnesses in support of his defense. [His bar tenders have been called and they admit the sale to certain ones of the persons named, and in some cases they did not recollect; but they both allege that the men to whom they sold were not men of known intemperate habits.]</p> <p>[The first question of fact for you to determine is whether this defendant either in person, or by agent, or in both capacities, • sold liquor wilfully to men of known intemperate habits, within the last two years. If the defendant himself sold liquor to these persons, to be used as a beverage, and he made that sale voluntarily, and there is no evidence here to show that any sale by the defendant was not voluntary and wilful on his part; if you find that he so sold, to persons of known intemperate habits, he is guilty of the offense charged in this indictment, because it was his duty to inquire into and know the character of the men frequenting his bar room. He cannot excuse himself on account of his ignorance as to their habits, where he has made no proper 'effort to ascertain their habits. It is his .duty to inquire as to the habits of men who frequent his bar; and if they are men in the community, known to be intemperate in their habits, he must make diligent effort on his part to ascertain it. ■ A mere ignorance on his part is not sufficient in law to excuse him. This is as to sales made by himself.] é</p> <p>[Now as to the sales by his bar tender. The bar tender is simply the agent of the defendant or the representative of his principal. An agent is one who acts for another within the scope of his authority. It is not denied by the, defendant that both Decker and Black were his agents or bar tenders, and that they were selling liquor for him, at this hotel in the borough of Huntingdon. Now, a sale made by an agent must also be a wilful sale, and it must be made to men of known intemperate habits; and the liquor must have been sold to be used as a beverage — that is for the purpose of drink.] 5</p> <p>The sale, as we have already said, must be a wilful act, that is, a voluntary act, an act gove'rned by the will; and, further, such sale must be made to a man of known intemperate habits, as a beverage, and within the time prescribed in the statute, viz., two years.</p> <p>[It is the duty of the defendant to inquire as to the habits of the men who frequent his bar, if their habits are rxnknown to him. If by proper inquiry he or his authorized agents could have known the intemperate habits of these persons, and they failed to make such inquiry, he is responsible for a wilful sale to men of known intemperate habits. A landlord cannot safely transfer the business of selling liquor to his bar tender, and then give it no attention himself. This is esj)ecially so where a landlord is present in the hotel, taking charge of its management. It is his duty to see that the law is observed and obeyed by those to whom he delegates his power and authority. If his agent violates the law, it is the duty of the landlord to discharge him and employ one who will properly obey and observe his duty. If a sale be made by an agent against the authority of his landlord, and without his knowledge and assent, he would not of course be criminally responsible. At the same time the landlord cannot abandon the business to his bar tender, fail to look after it, and then claim exemption from a wilful violation of the law by his agent. Under such circumstances, the landlord would be responsible,' because he has failed to exercise that care and authority-over the business which the law requires of him. He received the benefit of the act, and he must therefore be held to a proper discharge of his duty.] 6</p> <p>Now, this, in the opinion of the court, embraces the law applicable in this case, and applying the law to the facte [you must ascertain whether the defendant himself, or by his authorized agents, sold, or permitted a sale of liquor to be used as a beverage, to men of known intemperate habits, and whether he made proper inquiry in order to ascertain the habits of the men who were frequenting his bar; because if any other rule were to be established, a man might transfer all the patronage of his bar to his bar tender and say to him in the beginning, Do not sell to anybody to whom I am not authorized to sell, and then let his agent transact the business as he pleases, and not be responsible. That would be a preversion of the duty devolving upon the person who holds a license to sell liquor. The landlord can only exempt himself from responsibility by a proper an dcareful discharge of his duty.] 7</p> <p>[If the defendant in this case did discharge his duties properly, under the instructions we have given you; if you find he did not sell to men who were known in the community to be men of known intemperate habits; or if he did not cause liquor to be sold to such persons to be used as a beverage, or permitted it to be sold, — then your verdict should be, not guilty. If, on the other hand, you find that he did sell to that class of persons wilfully, or permitted his agents to sell to them, or that he caused the sale to be made to them without proper inquiry upon his part as to the habits of the men who were daily visiting his bar, you should find him guilty in manner and form as he stands indicted.] 8</p> <p>The jury rendered a verdict of guilty, and a motion for a new trial having been made and refused, the defendant was sentenced to pay a fine of $25, and to be imprisoned in the county jail for ten days.</p> <p>Thereupon defendant took this writ, assigning for error: (1) The denial of the motion to quash the indictment; and (2-8) the respective portions of the charge inclosed in brackets.</p> <p>The motion to quash was proper. If defendant or his counsel know of .an objection to any of the grand jurors who found the indictment, or to the organization or proceedings of the jury, and proceeded to trial without making the objection, it is waived, and •cannot be insisted on. 1 Wharton, Crim. Law, 6th ed. § 473; State v. Rand, 33 N. H. 216; 1 Bishop, Crim. Proc. § 886; Jillard v. Com. 26 Pa. 169.</p> <p>It was decided by the United States court that a grand jury having received the testimony of a person not under oath, the indictment was quashed as irregularly found. United States v. ■Coolidge, 2 Gall. 364, Fed. Cas. No. 14,858.</p> <p>Whatever the ancient doctrine may have been, it is now settled in this state that a grand juror can be called to prove that the testimony of a witness in court is different from what it was before the grand jury. Gordon v. Com. 92 Pa. 216, 37 Am. Rep. 672; State v. Broughton, 29 N. C. (7 Ired. L.) 96, 45 Am. Dec. 507; Com. v. Mead, 12 Gray, 189, 71 Am. Dec. 741; State v. Fasset, 16 Conn. 466.</p> <p>The object of secrecy in the deliberations of the grand jury was to protect the witness — “consequently, when the purposes ■of the secrecy are accomplished, it is tire better opinion, contrary perhaps to some cases, but maintained in most, that any revelations of the grand jury’s doings may be made which justice demands.” 1 Bishop, Crim. Proc. 3d ed. § 857; Huidelcoper v. Cotton, 3 Watts, 56; Com. ex rel. Jack v. Crans, 2 Clark (Pa.) 172.</p> <p>“The least attempt (of a district attorney) to influence the ■grand jury, in their decision upon the effect of the evidence, is -an unjustifiable interference; and no fair and honorable officer will ever be guilty of it.” 1 Wharton, Crim. Law, 6th ed. § 495; Com. v. Salter, 2 Pearson (Pa.) 461.</p> <p>The presumption arising from the employment of a bar keeper is that he has authority only to make lawful sales. When it is sought to hold the landlord criminally for the act of his agent, the burden is on the commonwealth to prove express authority. State v. Mahoney, 23 Minn. 181, 2 Am. Crim. Eep. 408.</p> <p>A single unlawful sale by such clerk would not raise any presumption of authority to violate the law. Parker v. State, 4 Ohio St. 563.</p> <p>An employer is not criminally responsible for an illegal sale of liquor by his servant, made without his knowledge or consent and in violation of positive instructions given by him in good faith. Lathrope v. State, 51 Ind. 192, 1 Am. Crim. Eep. 468.</p> <p>The district attorney had the right to be before the grand jury, and to see that all witnesses indorsed on the indictment were called and examined. Wharton, Crim. PI. 366.</p> <p>A motion to quash is not granted of course, but must be regularly made; and when grounded on facts not apparent on the record it must be supported by affidavit; and, being addressed to ■the discretion of the court, such discretion, rather than any absolute rule of law, determines the causes which will prompt its action. 1 Bishop, Crim. Law, 3d ed. 769, 772.</p> <p>It has been frequently ruled that as quashing is a discretionary act, error does not lie on its refusal. Wharton, Crim. PL 8th ed. 387.</p> <p>The court will not quash an indictment, except in a very clear •case. Eespublica v. Cleaver, 4 Teates, 69; Eespublica v. Buffington, 1 Dali. 61, 1 L. ed. 37.</p> <p>An indictment will not be quashed on the ground of irregularities in the arrest, nor for technical irregularities in the conduct of the grand jury. Wharton, Crim. Pl. 8th ed. 388.</p> <p>The re-examination and revision of the evidence submitted to the grand jury, attempted to be established by ex parle\ statements and upon the allegation of information and belief by interested parties, should not be permitted. See United States v. Eeed, 2 Blatchf. 435, 466, Bed. Cas. No. 16,134.</p> <p>Neither the clerk of the grand jury nor the county attorney can testify or give any information relative to the proceedings which the grand jurors themselves could not give. McLellat' v. Eichardson, 13 Me. 82; State v. Basset, 16 Conn. 470.</p> <p>Grand jurors will not be permitted to testify whether they voted at all, bow they or their companions voted. An innocent person will not be hurt by refusing to go behind the indictment and see how it was found, for he can always vindicate himself in a trial upon the merits. State v. Baker, 20 Mo. 338; State v. Wanunack, 70 Mo. 410; Creek v. State, 24 Ind. 151; State v. Gibbs, 39 Iowa, 318; State v. Hamlin, 47 Conn. 95, 36 Am. Hep. 54; Thompson' & M. Juries, 742; Hirsh, Juries, 218, 758, note.</p> <p>A most important injunction, .in the oath of a grand juror, is that which imposes upon him the obligation of secrecy. The violation of this was a high misprision and a finable offense. This obligation is perpetual. Nothing in the administration of public justice can be more rational or salutary. 4 Bl. Com. 126; Davis, Precedents of Indictments, 12; Hirsh, Juries, 206.</p> <p>As to every statement made in the oral motion, each and every grand juror was incompetent on objection. Thompson & M. Juries, 739.</p> <p>Grand jurors cannot be examined as witnesses to impeach their finding, but may be examined in support thereof. Turner v. State, 57 Ga. 107; Simms v. State, 60 Ga. 145; Hirsh, Juries, •758.</p> <p>The motion should contain concise averments of all necessary facts to make out a prima facie title to the relief sought, and should be supported by an affidavit. Mitchell, Motions & Buies, 19.</p> <p>Por the refusal of a similar motion to quash although made upon affidavit, see Com. v. Twitehell, 1 Brewst. (Pa.) 554.</p> <p>A principal is prima facie liable for the act of an agent done in the general course of business authorized by the principal See 1 Wharton, Crim. Law, p. 247.</p> <p>Wherever also due supervision could have prevented the mischief, then the master neglecting such supervision is indictable. 1 Wharton, Crim. Law, p. 135. See also Com, v. Gillespie, 7 Serg. & B. 469, 10 Am. Dec. 475; Com. v. Willard, 9 W. N. C. 524; Com. v. Barry, 115 Mass. 146.</p>

January Term, 1888, No. 393, E. D., Appeal from a decree of the Quarter Sessions of Luzerne County confirming the report of viewers appointed to assess damages in opening an alley in the borough of Pittston, September Term, 1886, No. 360.

January Term, 1888, No. 209, E. D., Error to the Common Pleas of Erie County to review a judgment in favor of the defendants in an action of ejectment, September Term, 1882, No. 4. Held: “All observation shows that parents habitually speak of property in the possession of their children as their children’s without any intention of disclaiming their own title.

<p>January Term, 1887, No. 430, E. D.,</p> <p>Error to the Court of Common Pleas of Centre County to review a judgment in favor of plaintiffs in an action of assumpsit, April Term, 1886, No. 13.</p> <p>The action was brought by J. P. Gephart and D. A. Musser, lately trading as Gephart & Musser, now to the use of D. A. Musser, against Samuel Grenninger, to recover an alleged balance upon an account.</p> <p>The principal item in controversy was a charge made by the plaintiffs against the defendant, for costs paid by them in a suit brought by them against Gossler & Company in the court of common pleas of Clinton county, for the price of certain shingles.</p> <p>At the trial the plaintiff made the following offer of evidence:</p> <p>Plaintiffs propose to prove by D. A. Musser, the witness on the stand, and others, that after the trial in case of Gephart & Musser v. Gossler & Company, in Clinton county, brought to recover the car load of shingles in controversy in this case, plaintiffs were compelled to pay and did pay the docket costs in said suit, and witnesses’ cost amounting to the sum of $120.44, and also $15 of witness fees to E. P. Musser in same case; that plaintiffs incurred these costs through the misrepresentations of defendant in marking the shingles sold as No. 2’s when they were not such; and that plaintiffs were compelled to incur this expense through the error, mistake, or fraud, of the defendant in labeling and marking the shingles. This for the. purpose of claiming the amount of the costs as part of plaintiffs’ claim in the action.</p> <p>Defendant objected to this offer for the following reasons: (1) If plaintiffs sold these shingles, as claimed, for defendant Samuel Grenninger, they had no right to bring any suit in their own name against Gossler & Company to recover the price of the shingles; and any costs or expenses incurred thereby cannot constitute a proper charge against defendant; ,(2) it is not proposed to show that said suit was brought, or the costs and expenses incurred, by direction or at the instance of defendant; (3) the evidence is incompetent to affect the defendant; and (4) the evidence offered is irrelevant.</p> <p>Thereupon plaintiffs further proposed “to prove by the witness on the stand, and other witnesses, that defendant told plaintiffs that they, the plaintiffs, must sue Gossler & Company, and collect the money for this car load of shingles from them, and urged plaintiffs to bring suit at once; and that if this was not done defendant would hold plaintiffs responsible for the shingles; and further positively asserted that the shingles shipped were No. 2’s and Gossler must pay for them.”</p> <p>By the Court: “Evidence admitted and bill sealed for defendant.” [1]</p> <p>The court, Furst, P. J., charged the jury as follows:</p> <p>This is an action brought by the firm of Gephart & Musser for the use of D. A. Musser, this plaintiff, against Samuel Grenninger, to recover an alleged balance due the plaintiff upon an account existing between them. The whole amount of the plaintiff’s account is $630.91, upon which account the plaintiff has entered credits to the amount of $358.99, which leaves, according to the plaintiff’s allegation, a balance in his favor of $271.92.</p> <p>In this account there are several items that are disputed by the defendant, the first of which is on the debtor side; and then there are two or three disputed items on the credit side. On the debtor side of the plaintiff’s account the defendant disputes a charge of $23.65, which is termed the Carstetter assumpsit. Another is the item of cash paid to Ammon Grenninger, $10; and another, which is termed the bill of costs incurred in the suit at Lock Haven, of $120.44, and a further sum of costs to be paid to E. P. Musser, in that suit, of $15, making the total items disputed in the plaintiff’s account $169.09. The defendant also disputes the credits which the plaintiff allowed him upon two lots of shingles — one lot of 10,000 No. 2’s and one lot of 28,400 No. 2’s. For these two lots of shingles the plaintiff credits the defendant, according to the plaintiff’s theory, with what Gephart & Musser received for them.</p> <p>The defendant contends that the shingles were sold to the plaintiff at a fixed price, and he demands, in this case, a credit for the fixed price at which he contends that the shingles were sold.</p> <p>Then, first, as to the assumption of $23.65, being the Carstetter account: This assumption is not in writing, and if it were, therefore, simply an undertaking to pay the debt of a third party, it could not be recovered in this case, because it is not in writing. If, however, yon believe the. testimony on the part of the plaintiff,,and especially the testimony of Mr. Carstetter, that this $23.65 was paid by Carstetter to Grenninger, and that Grenninger directed the charge to be made by Gephart & Mnsser against him, then it does not fall within the act of assembly which requires the assumption to be in writing. The plaintiff contends that this $23.65 had been actually paid by Carstetter to Grenninger, for whom he worked, and that by an agreement between Carstetter and Grenninger, Grenninger charged it up to Carstetter and then directed Gephart & Musser to charge him with it. If you find these to be the facts of the case, it would constitute a proper charge against the defendant in this case. If such be not the facts in this case, then you must eliminate that item from the plaintiff’s account.</p> <p>As to the credits for the two lots of shingles in dispute, namely, 10,000 shingles, No. 2’s, at $6.50 per thousand, and 28.000 shingles, No. 2’s, at $6.50 per thousand, the plaintiff, as we have already stated, credits, according to his testimony, the actual amount received from the sale of these shingles.</p> <p>The cost of the suit in Lock Haven, amounting to $145.44:, is connected with another branch of this case; and we will call your attention to it when we come to speak of the sale of the 28.000 shingles.</p> <p>[According to the evidence on the part of the plaintiff Gephart & Musser loaned to Mr. Grenninger, on March 21, 1882, the sum of $300 in money; and, as evidence of that, a receipt is produced which is signed by Mr. Grenninger in the day book of the plaintiff, in which he acknowledges that he did that day receive $300, borrowed money. That receipt is prima facie evidence of the facts stated in it. It is subject, however, to be corrected or modified by the testimony of the witnesses. That is, if there is a mistake in that receipt, it may be corrected by parol testimony. Mr. Grenninger contends that he did not borrow the money, but that the money was paid to him on account of shingles to be delivered by him to Gephart & Musser. You have, therefore, his explanation, you have the testimony of Mr. Musser, and you have the receipt itself; and you must determine from these whether or not the money was borrowed by Grenninger, or whether it was paid on account of shingles purchased by Gephart & Musser from Grenninger.] 2</p> <p>The defendant contends that this money was given to him as part of the contract price of his shingles then delivered and to be thereafter delivered, and that he delivered on March 21, 1882, 10,400 shingles, on April 11, 21,000, on April 14, 28,000, and on May 12, 11,600 shingles. The plaintiff claims that this money was borrowed, and that after Mr. Grenninger had borrowed the money from Mr. Mnsser, or from Gephart & Mnsser, Mr. Grenninger agreed to deliver .to them shingles; and that they were to sell shingles on behalf of Mr. Grenninger, and were to credit to Grenninger’s account the net proceeds of the shingles as they would receive the money from the purchaser of them; and that by reason of that agreement, Gephart & Musser did sell some three lots of shingles and credited Mr. Grenninger with the net amount received for them. There is no dispute in this case as to the fact that they did sell 10,000 No. 2 shingles on March 21, which they credited at the amount received for them, and that on or about April 14, they shipped to Gossler & Company, or to George Sprecher at Chambersburg, 28,000 No. 2 shingles belonging to Samuel Grenninger; that they had made a contract with Gossler & Company, by which they agreed to ship him or his vendee, George Sprecher, at Chambers-burg, 28,000 or perhaps 30,000 shingles, and that in that lot there were 28,400 shingles belonging to Samuel Grenninger.</p> <p>Now, you will notice, by a reference to the charge of Mr. Grenninger against Mr. Musser, that about the same time that these shingles were shipped to Chambersburg, Mr. Grenninger charges Mr. Musser with the contract price as he alleges, $6.50 per thousand.</p> <p>You will notice further that in several of the other items Grenninger only makes a charge against Musser on the day Musser ships the shingles at the yard, or effects a sale of them to some other person, and not on the day the shingles are delivered to him. These shingles were shipped, and when they arrived at Chambersburg they were rejected; and notice, in due time, came to Gephart & Musser that the shingles were not such shingles as they had sold; and, therefore, Mr. Sprecher declined to receive them.</p> <p>The plaintiff further alleges that Gephart & Musser notified Grenninger of the rejection of these shingles and wanted him to take charge of them at Chambersburg, and that he declined to have anything to do with them.</p> <p>And the plaintiff further alleges that after this Gephart & Musser or their representatives called on Mr. Grenninger and asked him what was to be done with the account of Gossler & Company, stating that they refused to pay for the shingles. The plaintiff and his son testify that Mr. Grenninger directed them to collect the money from Gossler & Company, — saying that if they refused to pay it, they should bring suit at once against them, and that he would hold them responsible for the price of the shingles.</p> <p>They also testify that in pursuance of that notice they brought suit against Gossler & Company at Lock Haven, in the county of Clinton; that it was shown on the trial of that case that the shingles were not of the character they were sold for, that instead of being No. 2 shingles they were No. 3 shingles, and the plaintiff failed to recover in that case, and the verdict was rendered in favor of the defendant; that the plaintiff was then compelled to pay the defendant’s costs, the record costs, and the costs of his own witnesses, amounting to $145.44. That item the plaintiff charges against the defendant in this case, and the defendant disputes it.</p> <p>The defendant contends, in this action, that Gephart & Musser bought those shingles at the price of $6.50 a thousand; and he asks that a credit be allowed of that amount against the plaintiff’s account; and he also asks that a credit be given him in this account for 10,000 at $6.50 per thousand. The defendant further denies that he had any interest in the sale to Gossler & Company. He alleges that this was a sale made by Gephart & Musser as the owners of the shingles, and not as his agent or agents.</p> <p>He denies that he ever ordered suit to be brought against Gossler & Company; and he therefore alleges that he is not liable to be charged with the costs of that unsuccessful litigation. He also denies, as we have already stated to you, the Oarstetter assumption. We have instructed you fully as to the law with regard to that; and we submit that question of fact to you for your determination under the law.</p> <p>Now, from this state of facts, you must determine what the contract between the parties was. If the contract was as contended for by the plaintiff in this case, that is, that Gephart & Musser sold the 10,000 shingles on March 21, 1882, and the 28,000 shingles on April 14, 1882, as the agents of Grenninger, and that they were to credit Grenninger with the net proceeds of these sales only, then Grenninger would simply be entitled to the proceeds of those shingles according to the prices at which they were sold, or the sum received for them by Gephart & Musser.</p> <p>The plaintiff alleges that after the trial of the suit in Lock Haven, Mr. Grenninger refusing to take charge of the shingles then deposited on the siding of the railroad company at Chambersburg, Gephart & Musser directed them to be sold to the best advantage and credited Grenninger with the net proceeds of that sale, amounting, after deducting freight and other charges, to $43.19; and here arises the serious question in the dispute between these parties with regard to that transaction, — whether Gejjhart & Musser acted as the agents of Grenninger in the sale of these two lots of shingles, or whether they sold the shingles themselves as the owners thereof. If, therefore, you find that Gephart & Musser sold these two lots of shingles as the agents of Mr. Grenninger and upon the terms testified to by the plaintiff and his son, then Mr. Grenninger would be entitled only to a credit equal to the amount that was received by Gephart & Musser. If, on the other hand, you find that Gephart & Musser purchased these shingles at fixed prices from Grenninger, then Grenninger would be entitled to a credit on this account at the contract prices; and you would then ascertain how the balance of the account stands between these parties.</p> <p>[If you find that the bargain was that Grenninger was to receive as a credit the net proceeds of the sale, that Gephart & Musser were acting as his agents in the sale, then, under the evidence of the plaintiff and his witnesses, if you believe them, the plaintiff would be entitled to charge Grenninger with the costs of the unsuccessful litigation at Lock Haven; because, according to that testimony, Gephart & Musser, or their representatives, called on Mr. Grenninger and he directed them to bring suit against Gossler & Company, and they, having brought the suit, were in duty bound to prosecute it, using every reasonable effort to effect a recovery; and, if they failed, the costs would be in the nature of expenses incurred by an agent for his principal at the request of the principal.] 3</p> <p>If, however, you find that they were the owners of these shingles and that Grenninger had nothing to do with them, then, of course, Grenninger would not be entitled to be charged with the costs of that litigation; but he would be entitled to credit at the contract price at which he alleges he sold the shingles. You must, therefore, take the facts and circumstances in this case, and from them determine what the contract was between these parties.</p> <p>It is your first duty to endeavor to reconcile the testimony of the witnesses; it is not proper in the first instance to impute perjury to any witness; but the endeavor of the jury should be to reconcile the testimony if they can. If the testimony is irreconcilable, then the jury must determine, from all the evidence, the true state of the case; and they must act accordingly. If you find, therefore, upon an examination of the facts that there is a balance due to the plaintiff, he will be entitled to that amount with interest on it from the time that it was due, or say six months thereafter. If, upon the contrary, you find that there is nothing due the plaintiff, but that there is a balance due the defendant, you will find for the defendant; and in your verdict you will certify how much of a balance you find in his favor; and just as you determine these questions your verdict will be, either for the plaintiff for so much, or for the defendant; and if there is a balance due him, you will certify it to the court.</p> <p>The jury returned a verdict for the plaintiffs, for $.328.18, and a motion for a new trial having been made and denied, judgment was entered on the verdict, and defendant took this writ, assigning as error: (1) The admission of the evidence under plaintiffs’ offer; and (2, 3), the portions of the charge in brackets.</p>

January Term, 1888, No. 246, E. D., Certiorari sur appeal to review an order of tbe court of Common Pleas of Cumberland County directing the register of wills of that county to deliver possession of certain records to a person appointed by the court to index the same.

July Term, 1888, No. 18, E. D., Error to the Common Pleas of Somerset County to review a judgment on a verdict for the defendant, in an action of ejectment, November Term, 1883, No. 197.

July Term, 1888, No. 39, E. D., Error to tbe Common Pleas of Eayette County to review a judgment on a verdict for tbe plaintiff on an appeal from tbe award of viewers to assess damages for land taken by right of eminent domain for a railroad, December Term, 1884, No. 86.

<p>July Term, 1888, No. 6, E. D.,</p> <p>Error to- the Common Pleas of Bed-ford County to review a judgment on a verdict for the defendants in an action of ejectment, November Term, 1886, No. 69.</p> <p>The plaintiff was the purchaser of the land in question at sheriff’s sale on execution of a judgment against Samuel Carney, the husband of Susan Carney.</p> <p>The facts are stated in the opinion.</p> <p>The assignments of error specified the action in the court below : (1) In refusing to affirm plaintiff’s fifth point, which was as follows: “It is incumbent and devolves upon defendants to prove affirmatively that Susan Carney paid the whole purchase money, Morrison’s judgments, for her separate estateand (2) in instructing the jury as follows: “The receipt on the deed, which is old, running back to 1850, is in full of purchase money from her. The evidence, if believed, shows direct payment at one time of $800 out of her separate estate on the hand money, and nothing in the case appears to show that Samuel Carney, her husband, paid 1 cent, or had any means out of which to pay; and it is alleged that on the farm he acted as her agent by virtue of a written joower. If you find the facts as alleged, and as seem to be sustained and proved by the evidence, your verdict should be for the defendant.”</p> <p>After the lapse of twenty years the acknowledgment in a deed of the payment of the consideration is sufficient evidence of payment of the purchase money. Pryor v. Wood, 31 Pa. 142.</p> <p>Where a person against whom a fraud has been perpetrated lies by for twenty-one years without causing it to be investigated, he will not them be permitted to show it. After so long an acquiescence the presumption of law is conclusive that no fraud was committed. Kribbs v. Downing, 25 Pa. 399 ; Geiger v. Miller, 24 Pa. 109.</p> <p>The same principle was applied to trusts before the act of 1856. A trust resting in parol is taken to be extinguished after twenty-one years. Strimpfier v. Roberts, 18 Pa. 283, 57 Am. Dec. 606; McBarron v. Glass, 30 Pa. 133.</p> <p>The earnings on the farm, even if managed by the husband, belonged to the wife. Rush v. Vought, 55 Pa. 444, 93 Am. Dec. 769.</p>

<p>July Term, 1887, No. 193, E. D.,</p> <p>Appeal from a decree of the Common Pleas of Fayette County, overruling exceptions to the report of an auditor upon a petition to strike off judgments entered upon judgment notes, and confirming the report, December Term, 1886, Nos. 45-48.</p> <p>The petitioner, against whom judgment had been entered by the executor of her deceased father upon four judgment notes, claimed that it had been the decedent’s intention that she should never be forced to pay the notes. It appeared that her father made a will in 1880, whereby he bequeathed to the petitioner a certain number of acres in his home farm, bequeathing the remainder of the farm to his other children. About a year thereafter he sold the whole of that farm to the petitioner, taking from her the judgment notes in suit for the purchase money. The petitioner claimed that such bequest of a part of the farm to her, although made before she purchased the whole farm and gave the notes in suit, was equivalent to a gift of the notes themselves to her, and, coupled with evidence of acts and statements on the part of her father, subsequent to the making of the notes and tending to show an intention not to exact payment thereof from her, furnished reasons why the judgments should be stricken off.</p> <p>The auditor reported adversely to the petitioner, who thereupon filed exceptions to the report, which were overruled by the court, and the petitioner appealed.</p>

January Term, 1888, No. 308, E. D., Appeal by Charles Klein and Lizzie Mindill, complainants, from a decree of Common Pleas No. 4 of Philadelphia County dismissing the bill in a suit in equity against William E. Harrity, assignee of Ladner Bros., and the Commercial National Bank, for the recovery of certain railroad bonds. The facts connected with the questions passed upon by the supreme court are sufficiently stated in the opinion.

<p>July Term, 1887, No. 195, E. D.,</p> <p>Error to the Quarter Sessions of Blair County to review a judgment on a verdict' against the defendant for costs in an indictment for perjury.</p> <p>The facts and questions presented are stated in the opinion.</p> <p>The opinion of Judge King, quoted in Wharton on Criminal Pleading and Practice, p. 226, and approved by this court, limits this power to cases where the accused has fled the justice of the state or where a less prompt mode of proceeding might lead to the escape of the offender.</p> <p>There was not the shadow of a prima facie case against March. lie was simply contradicted by Silverman.</p> <p>In Connor v. Com. 3 Binn. 38, the defendant was arrested by order of Judge Cooper, upon a rumor that he was passing counterfeit money and was about to flee from justice. He was convicted, and this court reversed the judgment upon the ground that the bill of rights had been violated.</p> <p>In McCullough v. Com. 67 Pa. 30, the indictment was framed on the return of a constable,- — held to have been regular.</p> <p>In Rowland v. Com. 82 Pa. 405, the bill was ignored, and the district attorney on the same information sent a bill to another grand jury, which was sustained- — held that the supreme court would only reverse for manifest abuse of the discretion of the district attorney.</p> <p>Section 8 of article 1 of the Constitution, who forbids the issue of warrants for search or seizure without probable cause, supported by an oath, has been so construed as to allow an indictment in many cases without preliminary information and hearing. This, it is true, is not to apply to every offense with which persons may be charged, but where the public peace may be disturbed by riots; where its comfort is destroyed by general nuisances; where such vices prevail and crimes are committed as tend to debauch morals and corrupt justice; and where the circumstances are extraordinary, or where there is criminal or contemptuous conduct in the view of the court — in such cases, for the safety of the people, and for its own protection, the court may act upon its own responsibility, and exercise a sound judicial discretion.</p> <p>Here the facts were so pronounced that judicial notice was necessary. The court could compel no one to make a formal oath, on which a formal warrant might issue, and it could not await the pleasure of volunteers. It, therefore, in the exercise of its discretion, invoked its own extraordinary powers and directed a bill to be sent up three months hence. Had the offense been ordinary contempt, the judge could have punished summarily, or directed a bill to be sent up, “in which case the state is the prosecutor, aud not the judge.” Wharton, Grim. PL & Pr. 960.</p> <p>This is regarded as more lenient to the offender, and in this case the defendant was allowed ample time to avail himself of every right and privilege he could have enjoyed had the prosecution originated before an inferior magistrate.</p> <p>In Com. ex rel. Winder v. Wetherhold, 2 Clark (Pa.) 485, the court held that the indictment charging a criminal offense may be found when sent to the grand jury by the attorney general without a previous oath and binding over, and that it is not prohibited by the Bill of Nights.</p> <p>In McCullough v. Com. 67 Pa. 33, the constable made a return for a violation of the liquor law. On this the district attorney sent up a bill which, being found by the grand jury, defendant’s counsel moved to quash. The court overruled the motion and directed the defendant to plead.</p> <p>In Com. v. English, 11 Phila. 439, the court held that the district attorney had power to send to the grand jury a bill to punish certain violations of the election laws in Philadelphia without previous warrant, arrest, hearing, or knowledge on the part of the defendant, and, being returned a true bill, it was sustained by the court, on motion being made by defendant’s counsel to quash.</p> <p>In Brown v. Com. 76 Pa. 337, a prosecution for murder, the prisoner’s counsel moved to quash the indictment, because it had been “'sent to the grand jury by the district attorney without previous prosecution, hearing, or binding over.” The court overruled the motion.</p> <p>In Nowand v. Com. 82 Pa. 405, the court holds that while the district attorney possesses this power, it is “under the supervision of the court,” thus implying the possession of the same, and even superior, powers by the court.</p> <p>But in the case in hand there was an oath to support the arrest and indictment. The examination of Silverman was in the nature of a hearing. March was present with his counsel, Silverman was there confronting him, upon his oath, and “face to’face.” The perjury, if committed, was in the presence of a committing magistrate; and directing Silverman’s sworn statement to be taken down and filed, that magistrate orders March, who is there in his presence, to enter into recognizance to appear at the next sessions and answer a charge of perjury.</p> <p>The court below exercised its discretion in pursuance of a power lodged in the court. This court will not interfere with this discretion. Rowand v. Com. 82 Pa. 408.</p> <p>A refusal to quash an indictment is not the subject of error. Wharton, Crim. PL & Pr. § 387.</p>

<p>July Term, 1888, No. 21, E. D.,</p> <p>Certiorari sur appeal from a judgment of the Common Pleas of Clearfield County distributing a fund in the hands of a receiver.</p> <p>The facts are stated in the opinion.</p> <p>A mortgagor may sell in the usnal way the lumber, coal, fire wood, ore, fruit, or grain found or growing'.on the land without violating the rights of the mortgagee until the mortgagee stops him by ejectment or estrepement; for those things are usually intended for consumption and sale, and the sale of them is the usual means of raising the money to pay the mortgage. Ploskin v. Woodward, 45 Pa. 44; Angier v. Agnew, 98 Pa. 587, 42 Am. Pep-. 624.</p> <p>The mortgagee has no more than a lien. Witmer’s Appeal, 45 Pa. 463, 84 Am. Dee. 505; Asay v. Hoover, 5 Pa. 35, 45 Am. Dec. 713; Pickert v. Madeira, 1 Pawle, 328; Edmonson v. Nichols, 22 Pa. 79; Wilson v. Shoenberger, 31 Pa. 299; Talbot’s Appeal, 2 Chester Co. Pep. 413; Michener v. Oavendex, 38 Pa. 338, 80 Am. Dec. 486.</p> <p>If the mortgagee is dissatisfied, he may protect himself by ejectment, or by scire facias upon the mortgage, or by estrepement (act of March 19, 1822, Purdon’s Digest, 1701) ; or, in case of emergency, by bill in equity and injunction. But, until he uses the means which the law provides, the rights of the mortgagor remain unchanged, and he continues be the owner of all profits derived from the use of the land, including the mining of coal and cutting of timber.</p> <p>In the present ease, the ejectment being simply a suit between the tenants in common, in regard to their title and rights in said land, the proceedings of the court were in reference to them and their rights, and are to be so construed. The rights of outside persons were not affected.</p> <p>The royalty in court is not a rent, but a part of the corpus of the estate. It is not an annual profit. Lynn’s Appeal, 31 Pa. 44, 72 Am. Dec. 721; Griffin v. Fellows, 81* Pa. 114; Caldwell v. Fulton, 31 Pa. 475, 72 Am. Dec. 760; Funk v. Haldeman, 53 Pa, 229, 241.</p> <p>This property was taken not in the usual and ordinary way, but wrongfully, and by a party who confessedly could not take it except by virtue of the special order of the court.</p> <p>The proceeding and order of the court were based upon a wrongful taking.</p> <p>When the estrepement was dissolved and the estate permitted to be converted into money, and the court directed, by its order of April 4, 1882, that “the receiver hold said moneys until it shall be legally determined to whom said money shall belong,” the rights of all parties in the estate, whatever they were, continued and were preserved. Belcbier v. Butler, 1 Eden, 530; Astor v. Miller, 2 Paige, 68; Jones, Mortg. 3d ed. § 708.</p> <p>Until stopped by ejectment and estrepement, as here, the mortgagor may sell coal, etc., because it is the usual way of raising money to pay the mortgage. But when stopped, the property, or, as here, its proceeds, are preserved for the rights of all parties interested; but that was a mine opened before date of mortgage. Hoskin v. Woodward, 45 Pa. 44; Martin v. Ambler, 6 Sad. Pep. 312; Gill v. Weston, 110 Pa. 312, 1 Atl. 921.</p> <p>The purpose of an estrepement or injunction is to prevent the property getting' out of reach. It is when and because the property is gone on which alone he has a lien, that he cannot assert his right; where the property is still on hand, as here, he can.</p> <p>There is a distinction between the ordinary use of property, and the taking of a part of the property which amounts to waste (Hoskin v. Woodward, 45 Pa. 44) ; but this, of course, must be understood to refer to mines opened at the date of the mortgage; and waste is restrainable independently of the statute, by either mortgage or judgment creditors. Witmer’s Appeal, 45 Pa. 463, 84 Am. Dec. 505.</p> <p>If the thing in dispute is part of the land, or the proceeds of land, so converted as to amount to injurious waste, the right of the mortgagee exists; and this right arises not by virtue of execution or other process, but by virtue of the lien created by the law, and directly connecting the mortgagee with the mortgagor's land.</p> <p>When the proceeds of real estate, arising by judicial sale, are for distribution, the lien creditor comes in on the fund, not by virtue of a writ or process, but by virtue of his lien and the connection between himself and the land which the law has established and because the fund in court represents that land to which his lien attached.</p> <p>Damages awarded to a mortgagor for land taken for a right of way, or other public improvement, become a substitute for the premises taken, and the mortgage is a specific lien upon the fund; as, also, do damages awarded by the state for an injury done to the property by the abandonment of a canal, equitably belong to the holder of a mortgage. The sum awarded arises from or grows out of the land, by reason of the injury which has diminished its value. In equity it is the land itself. It takes the place of the reduced value of the land. Bank of Auburn v. Roberts, 44 N. Y. 192; Jones, Mortg. § 706.</p> <p>If the land be charged with the payment of legacies or subject to other liens, the owner is a trustee for all who are interested, whose rights the court will protect. Reese v. Addams, 16 Serg. & R. 40; Pennsylvania R. Co. v. Jones. 50 Pa. 417.</p> <p>Where lands are sold under a judgment against a residuary devisee, pecuniary legacies charged thereon are payable out of the proceeds of sale. Nichols v. Postlethwaite, 2 Dali. 131, 1 L. ed. 319; Ruston v. Ruston, 2 Dali. 243, 1 L. ed. 365, 1 Am. Dec. 283; Witman v. Norton, 6 Binn. 395; Hassenclever v. Tucker, 2 Binn. 525; Clifton v. Hassenclever, 3 Yeates, 294; Tucker v. Hassenclever, 3 Yeates, 294; Diller v. Young, 2 Yeates, 261.</p> <p>The owner of land is the party entitled to recover damages for the taking; but it is the duty of the court to protect the rights of the mortgagees and other lien creditors. Keller’s Appeal, 29 Pittsb. L. J. 316; Ames’s Appeal, MS. opinion, filed March 3, 1884. Per Curiam.</p> <p>The law regards the removal of a part of mortgaged premises, or a diminution thereof, as a fraud upon the mortgagee, and permits him to follow the property and assert his right thereto as against the wrongdoer. Gill v. Weston, 110 Pa. 317, 1 Atl. 921.</p>

<p>Where it has been determined that a certain deed of land was obtained from the grantor by fraud, and that the grantee holds as trustee for the grantor, and the case is referred to a master to take an account between the parties and to allow the grantor, among other things, proper compensation for a portion of the land leased by the grantee he may take into, account, and allow for, the royalty received by the grantee for the right to operate oil wells upon the land.</p> <p>Note. — The deed in question in this case was passed upon and set aside in Bugbee’s Appeal, 110 Pa. 331, 1 Atl. 273.</p>

July Term, 1888, No. 57, E. D., Appeal from a decree of the Common Pleas of Bedford County, confirming an auditor’s report in proceedings to tax costo. The facto were as follows: September 15, 1884, the Bedford County Bank, which was the firm name of a partnership composed of the appellants, suspended business. September 25, 1884, thirty-four suits were instituted by that number of creditors against the partners.

January Term, 1888, No. 124, E. D., Appeal from a decree of the Orphans’ Court of Luzerne Oounty, distributing a decedent’s estate. The facts as they appeared at the audit of the first partial account of Thomas Atkinson, executor of William Atkinson, deceased, are stated in the opinion. The appellants were the residuary legatees.

July Term, 1888, No. 28, E. D., Error to the Common Pleas of Fayette County to review a judgment on the verdict for the defendant in an action of assumpsit This was an action by Robert Freed against John Richey to recover $1,100, and interest, the purchase money for a house and lot in Pennsville alleged by the plaintiff to have been bought from him by the defendant and conveyed to the defendant by Jacob J. Slonecker, in accordance with the following agreement : Article of…

<p>July Term, 1888, No. 40, E.- D.,</p> <p>Error to the Quarter Sessions of Fayette County to review a judgment nol. grossing and quashing counts in indictments for embezzlement, December Sessions, 1886, No. 62.</p> <p>The information upon which Frederick Seeman was arrested, bound over, and indicted for embezzlement, was as follows:</p> <p>Fayette Comity, ss.</p> <p>On the 29th day of Notmniber, 1886, personally appeared before me, one of the justices of the peace in and for the said county, William Britton, who, having been duly sworn, say¡that in the years 1885 and 1886, he consigned to Frederick See-man for sale by him on account of this affiant about 1,700 gallons of whisky contained in forty-three barrels, 40 gallons of cider in one barrel, and 65 gallons of wine contained in two barrels, and the said Frederick Seeman, having possession of the said liquor for sale as aforesaid, did sell the same and did wilfully, corruptly, fraudulently, and feloniously embezzle and convert to his own use more than $1,000 of the affiant’s money, arising from the sale of said liquor.</p> <p>Wm. Britton.</p> <p>Sworn and subscribed before me November 29, 1886.</p> <p>Samuel H. Smith, J. P. [Seal.]</p> <p>Upon this information a bill of indictment was drawn, containing six counts. The first two counts were drawn under § 125 of the Criminal Code (Purdon’s Digest, 441, pi. 204). The last four counts were drawn under § 107 of the Code, the third count charging simply the embezzlement without reference to stealing, while the last three counts of the bill charged the embezzlement under § 107, as a felonious stealing, with reference also to § 28 of the criminal procedure act (Purdon’s Digest, 479, pi. 29), which provides that distinct acts of embezzlement not exceeding thrqe, committed within six months, may be ioined in one bill.</p> <p>At the trial the defendant, before pleading, moved the court to require the district attorney to elect on which three counts of the indictment he would proceed, and to order a nol. pros, as to the other counts, for the reason that the indictment contained six counts, each one of which charged a separate offense and a distinct act of embezzlement. The commonwealth declined to elect to proceed on three of the said counts only, alleging that not more than three distinct acts of embezzlement were charged in the bill; and excepted to the court making such order. The court granted the defendant’s motion and directed the district attorney to elect. [1] The district attorney thereupon elected to proceed to trial on the first, second, and third counts, and entered a nol. pros, as to the remaining counts. The court then quashed the first, second, and third counte, [2] with, leave to present a new bill.</p> <p>A new bill with three counts was then prepared. The court quashed the second and third counts of the new bill [3] and the defendant was tried on the first count, which was as follows</p> <p>That Frederick Seeman, yeoman, of the said county, on the 5th day of October, 1887, at the county aforesaid, and within the jurisdiction of said court, then and there being the factor and consignee of one William Britton, with force and arms, etc., did then and there receive as a consignment, for sale, from the said William Britton, certain goods and merchandise, to wit: 700 gallons of whisky, 40 gallons of cider, and 65 gallons of wine, of the property of William Britton, of great value, to wit, of the value of $2,500; and that the said Frederick See-man, so being such consignee and factor as aforesaid, on the day and year aforesaid, at the county aforesaid, and within the jurisdiction aforesaid, with force and arms, etc., in violation of good faith and with intent to defraud the said William Brit-ton, owner thereof, did then and there sell the last-mentioned goods and merchandise for a large sum of money, to wit, for the sum of $2,500, and apply and dispose to his own use the sum of $1,067 so received, to the great damage of the said William Britton, to the evil example of all others in like case offending, and contrary to the act of assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.</p> <p>Verdict that the defendant is not guilty, and that he pay one half the costs and the prosecutor, William Britton, the remaining half. Sentence accordingly.</p> <p>The assignments of error specified the action of the court: (1) In requiring the commonwealth to elect counts; (2) in quashing the counts elected; and (3) in quashing counts 3 and 4 of the new bill. ■</p>

January Term, 1888, No. 120, E. D., Error to the Common Pleas of Elk County to- review a judgment on a verdict for the plaintiff in an action of ejectment. At the trial before Mayer, P. J., the following facts appeared : In 1874 C. E. Earley became owner of the land described in the praecipe. He went into actual possession soon after. Eirst, he leased to one Parsons and then to one Eannon.

July Term, 1887, No. 164, E. D., Error to the Quarter Sessions of McKean County to review a judgment on a verdict of guilty in an indictment for libel, May Sessions, 1887, No. 66. The indictment against Oscar Johnson and 0.

<p>July Term, 1887, No. 127, E. D.,</p> <p>Error to the Common Pleas of Elk County to review a judgment-in favor of the plaintiff in an action of partition, September Term, 1884, No.'75.</p> <p>In August, 1873, 0. P. Earley purchased, on behalf of himself, W. B. Brickell, P. Y. Hite, and J.,D. Baldwin, a tract of land in Elk county, for $100,000, of which sum $25,000 was paid in cash and the balance, $75,000, secured by bond and mortgage. The deed was made out to Earley, who subsecpiently conveyed an undivided one fourth to each, Brickell, Hite, and Baldwin. Baldwin’s interest was subsequently purchased by Earley, Brickell, and Hite, so that they three were tenants in common of the land, each having an undivided one-third interest therein.</p> <p>Thereafter Earley paid one third of the amount secured by the mortgage on the whole tract, and received from the mortgagee a release of the undivided one third of the lands mentioned in the mortgage, from the lien of the mortgage. This release was recorded in December, 1874.</p> <p>In 1880, the mortgagee sued out a writ of scire facias in the Hnited States circuit court for the western district of Pennsylvania, for the balance due on the mortgage, against Earley as defendant, with notice to Brickell and Hite and others as terretenants. The prsecipe for the writ of scire facias was as follows:</p> <p>“Issue a writ of scire facias sur mortgage executed by C. P. Earley, a citizen of the commonwealth of Pennsylvania, to George O. Lord, a citizen of the commonwealth of Massachusetts, dated August 15, 1873, and recorded in the recorder’s office, in the county of Elk, in the commonwealth of Pennsylvania, in Mortgage Book ‘B,’ pages 408 et seq., of which the following is a true copy, to wit (copy of mortgage). Excepting and reserving therefrom, the undivided one third of said mortgaged premises released from the lien of said mortgage, by 1he said George O. Lord, by writing, dated August 25, 1874, and recorded in recorder’s office, of the county of Elk, Pennsylvania, in Mortgage Book ‘B,’ pages 544 et seq.”</p> <p>The writ issued on this prsecipe contained the same exception. A final judgment was obtained on the scire facias, in 1882.</p> <p>In 1884, Earley commenced the present action of partition against Brickell and Hite, to recover in severalty one third of the land in question.</p> <p>In 1885, the United States marshal sold the undivided two thirds of the mortgaged land, by virtue of a writ of levari facias issued upon the judgment in scire facias, and such two thirds were, at that sale, bought by and deeded to the Central Bank of Pittsburgh. Brickell and Hite then quitclaimed to the bank the interest remaining in them, stated as two ninths. The bank thereupon was admitted as a defendant in the partition suit and pleaded non tenent insimul.</p> <p>The bank claimed that by the mortgage sale it acquired a two-thirds interest in all the land, irrespective of the interests of the former owners; that the release by the mortgagee to Earley, the mortgagor, of an undivided one third, operated to release, not Earley’s individual interest, but one third of the whole, and operated equally on the interest of all the owners, and that consequently after the marshal’s sale of two thirds, one third of one third, or one ninth, remained in each of the three owners, Earley, Brickell, and Hite; and that two ninths were acquired by the bank by its conveyances from Brickell and Hite, so that it was the owner of two thirds and two ninths, or eight ninths of the whole tract, and Earley was the owner of the remaining one ninth only.</p> <p>Earley, on the other hand, claimed that the mortgagee’s release applied wholly to his, Earley’s, one third of the land; that consequently his one third was exempted from the marshal’s sale on levari facias, and that it still belonged to him, unaffected by the transfers to the bank; and that the bank was entitled to the remaining two thirds only.</p> <p>This case was first tried in January, 1886, and resulted in a verdict for Earley, the plaintiff, by the direction of the court, for one third of the land, as claimed by him. The bank took the case to the supreme court, by writ of error, where the judgment was affirmed, in an opinion delivered October 4, 1886, reported in 113 Pa. 477, 6 Atl. 236. Subsequently, on rehearing, the supreme court altered its decision and reversed the judgment and ordered a new trial, on the ground that the verdict having been taken subject to the opinion of the court on a question of law reserved, it was error to enter judgment on the verdict before such question of law had been adjudicated. The opinion on rehearing was delivered February 21, 1887, and is reported in 115 Pa. 359, 10 Atl. 33.</p> <p>A new trial was accordingly had, before Mayer, P. J., and a jury. After the evidence was closed, the court directed a verdict for the plaintiff for the undivided one third of the land-stating that the facts did not appear to be in dispute, and that the only question involved was one of law.</p> <p>Judgment having been entered on the verdict, the defendant hank took this writ</p> <p>The assignments in error specified, in effect, the action of the court in deciding adversely to it upon its claims as to the effect of the release to Earley, and the conveyances to it, as .above stated.</p>

January Term, 1888, No. 103, E. D., Error to the Common Pleas of Warren County to review a judgment on a verdict for the defendant in an action of assumpsit.

January Term, 1888, No. 137, E. D., Error to the Common Pleas of Warren County to review a judgment on a verdict in an issue from the Orphans’ Court that part of a will was procured by undue influence, March Term, 1887, No. 81. This was an issue on a precept from the orphans’ court to try, 'by a jury, the two questions stated in the charge. The material portions of the will of James Steadman were as follows: Second.

<p>July Term, 1887, No. 100, E. D.,</p> <p>Appeal from a decree from the Orphans’ Court of Lancaster County dismissing the exceptions to the report of an auditor to adjust a guardian’s account, whereby the guardian was surcharged with the loss resulting from an investment made by him of his ward’s money upon a second mortgage.</p> <p>The questions presented are sufficiently stated in the opinion.</p> <p>Pre-eminent knowledge or uncommon foresight are not required of a guardian. Common skill, common prudence, and common caution are all that courts have required or ought to require. Konigmacher v. Kimmel, 1 Penr. & W. 214, 21 Am. Dec. 374.</p> <p>A trustee who acts faithfully and by advice of counsel is not answerable for a mistake. During’s Appeal, 13 Pa. 234; Bradley’s Appeal, 89 Pa. 521. See also Jack’s Appeal, 94 Pa. 367.</p> <p>The case was carefully considered by the learned auditor, and his conclusions have been affirmed by the court below. The decree will not be disturbed by this court unless flagrant error is discovered. Ranninger’s Appeal, 118 Pa. 20, 12 Atl. 511; Nauman’s Appeal, 116 Pa. 505, 9 Atl. 934.</p> <p>Additional force is given to an auditor’s report by the confirmation of the court. Bull’s Appeal, 24 Pa. 286; Dellinger’s Appeal, 71 Pa. 425.</p> <p>A guardian who changes a first mortgage belonging to his ward into a second one, and it is lost, is liable to his ward for the amount of the loss. Osborne v. Munroe (N. J. Eq.) 4 Cent. Rep. 243, 5 Atl. 898; Leech’s Estate, 26 Pittsb. L. J. 10.</p> <p>An investment of trust money ought to exceed two thirds of the value of the property. G-irard Trust Co.’s Appeal, 13 W. N. 0. 367. See also McEarland v. McOlees, 1 Sad. Rep. 512.</p> <p>When a-guardian is honest, but loses the estate through his ignorance and mistake, he will be surcharged with the losses without depriving him of commissions. Quinn’s Estate, 41 Phila. Leg. Int. 226.</p> <p>The ward in this case had a right to elect to take the property or hold the guardian for the money invested. She elected the latter, and notified him of the same. Royer’s Appeal, 11 Pa. 36; Girard Trust Co.’s Appeal, 13 W. N. 0. 367; Barton’s Estate, 11 W. N. C. 561.</p>

This was an action of ejectment for 8 acres of land. In 1804 Philip Kuhns became the owner of two tracts of land. On Febr ruary 28, 1822, he conveyed to Jacob Kuhns, the father of the plaintiff, 236 acres of this land, and on May 29, 1849, conveyed to John Kuhns 106 acres. Jacob Kuhns died in February, 1860, and his real estate, being the balance of his purchase, was brought into partition, and John Kuhns, his son, took it at the appraised value.

July Term, 1888, No. 9, E. IX, Certiorari sur appeal from a decision of the Orphans’ Court of Erie County, in matter of the distribution of money in the hands of the executors of the last will of Hannah P. Courtright, deceased, September term, 1888, No. 7. Hannah P. Courtright died on Eebruary 12, 1885, having made a will with codicils attached, which was duly probated Eebruary 21, 1885.

<p>January Term, 1888, No. 309, E. D.,</p> <p>Appeal from a decree of the Orphans’ Court of Philadelphia County, dismissing appellant’s claim against the estate of Fannie N. Wells, deceased.</p> <p>The facts are stated in the following portions of the adjudication of the auditing judge:</p> <p>“A claim was presented by Thomas H. Neilson for $3,990.06 damages arising from sale of certain shares of stock belonging to the claimant alleged to have been sold by the decedent without his authority.</p> <p>“The facts with regard to this claim are as follows:</p> <p>“The claimant had certain stock transactions with Cassatt,' Townsend & Company, brokers, and in the latter part of 1883 was indebted to them in the sum of $1,856.38, to secure which they held as collateral 100 shares Green Bay, 200 shares of Bichmond & Allegheny, 100 shares Cedar Falls and $1,000 Pennsylvania Canal 6’s. The bond last mentioned belonged to the decedent, by whom it had been loaned to the claimant. The stocks were his own property. The creditors being urgent for payment, Messrs. Shoemaker & Company, brokers, at the request of the claimant, took up the account and carried it for him, holding the same securities as collateral; and in the following May, they having in turn asked for settlement, the decedent, at the request and purely for the accommodation of the claimant, who was her brother, directed Messrs. Shoemaker & Company, who were satisfied with her individual responsibility, to charge the debt to her account, the collaterals being still held by them. To secure her in this transaction the claimant executed a paper, of which the following is a copy: [See headnote.]</p> <p>“It is alleged that the decedent sold the stocks thus pledged without notice to the claimant, and at prices much lower than could subsequently have been obtained. The claim is for the loss so arising.</p> <p>“Under the authority given by the claimant as above it was not necessary that she should give notice of her intention to sell. The stocks were to be sold by her ‘at her best judgment/ and with no right of interference on the part of the claimant.</p> <p>“In point of fact, however, as the evidence showed, notice was given of the sale of the Richmond & Allegheny stock; and there seems little reason to doubt, although the fact did not affirmatively appear, that it was also given in the case of the other stocks. ...</p> <p>“The Green Bay stock appears to have been sold November 25, 1885, at $9, yielding $887.50. This price, it will be observed, is $1 above that mentioned in the letter last referred to as ‘satisfactory’ to the claimant.</p> <p>“The claim is for loss arising from the sales thus made of Richmond & Allegheny stock and Green Bay stock; the former having sold at a later date, November 25, 1885, at 11%,. and the latter April 7, 1886, at- 17, the total difference being $3,-900.06, and making, with interest from April 7, 1886 ($90), the amount now claimed, $3,990.06.</p> <p>“It may be observed, although it does not affect the decision of the ease, that these stocks were of the class described by Mr. Shoemaker as ‘wild cat/ that is, stock not bought for investment, but simply, for purposes of speculation, and that the fluctuations in price were of the most extreme kind. Thus Richmond & Allegheny in May, 1884, the time when the decedent assumed the responsibility for the debt of the claimant, sold at 2%; in January, 1884, at 5; in May, 1885, at 1; in November, 1885, at 11% 5 in May, 1886, at 2; in November, 1886, at 15%; in June, 1887, at 2%, and in February, 1887, at 11%. The Green Bay stock in November, 1885, sold at 9; in January, 1886, at 8; in December, at 14%; in January, 1887, at 12, and in. April at 17.</p> <p>“The decedent died, as already stated, May 4, 1886, a considerable time after the sale of the last of these stocks. She was a lady of means, and the relations between her brother and herself were intimate and friendly. Yet so far as the evidence discloses, there was at no time while she lived any demand made upon her, or any suggestion of the existence of a liability on her part to the claimant</p> <p>“In the opinion of the auditing judge, there is not and never was any such liability.”</p> <p>Claimant offered in evidence certain letters from decedent npo-n which he relied to show an intent on the part of decedent to relinquish her power to sell the stocks.</p> <p>Exceptions to the adjudication of the auditing judge were dismissed by the court with the following opinion by Ashman, J.:</p> <p>The agreement of May 17, 1884, was free from ambiguity, and rested upon a good consideration; the claimant, by its terms, having sold and delivered to the testatrix all his stocks, “to be sold by her at her best judgment,” and having directed the proceeds to be applied in a specific way, and the testatrix having as an equivalent assumed the indebtedness of the claimant to Shoemaker. The subsequent correspondence and other acts of the parties do not show that the contract was either modified or superseded. In her letters to the claimant, the decedent advised him to sell some of the securities, and requested his judgment as to the sale of the others; but any inference from this that she waived her own right to sell or coupled it with an obligation to give notice of its exercise, was repelled by their narrative of her dealings with the broker, which latter were those of an absolute owner, or at least of one who had an absolute control of the stocks. The correspondence, however, not only negatives the supposition of a waiver, but expressly sets up the contrary. Thus, under a date of August 28, 1885, the decedent writes: “I earnestly desire to please you and myself, too, by getting 16 if possible, but do not think it wise to risk another fall below 14, by holding too long. I wish you were here to give me your consent, which, though not necessary under the business form, I prefer as a sister.” So in her letter dated two days earlier, after directing the claimant to telegraph to the brokers to sell, she says: “If they do not hear from you to sell or not to sell, I will give the necessary order, in case they have not heard from you. Without my consent they would not have sold on your order.”</p> <p>The claimant is not competent to make the remaining objection that the agreement of May 27, 1884, was a trust, under which notice to the cestuis que trust, besides himself, of an intended sale, was imperative. He did not stipulate for that notice, and the other parties in interest do not complain of its absence. In all this we have assumed that no notice was given. Hut the auditing judge finds that notice of the sale of one stock was proved, and that there was little reason to donbt that it was given in the ease of all the stocks.</p> <p>The exceptions are dismissed.</p> <p>The assignments of error specified, inter alia, the action of the court in dismissing appellant’s exceptions.</p> <p>Under the facts, the transaction was simply a bailment of stocks for the pre-existing indebtedness of Shoemaker & Company, and decedent stood in the same position as Shoemaker & Company, and could not have sold the stock, except upon reasonable notice to appellant of the time and place of sale. Jones, Pledges, §§ 610, 732; DeLisle v. Priestman, 1 1 Browne (Pa.) 176; Davis v. Funk, 39 Pa. 243, 80 Am. Dec. 519; Porter v. Patterson, 15 Pa. 229 ; Bobertson v. Lippincott, 1 Phila. 308; Sitgreaves v. Farmers’ & M. Bank, 49 Pa. 359; Conyngham’s Appeal, 57 Pa. 474; Diller v. Brubaker, 52 Pa. 498, 91 Am. Dec. 177.</p> <p>If, by any subsequent agreement between the parties, the stipulated time for payment has been rendered indefinite, it is not competent for the pledgee to sell until he has made a demand for payment. Pigot v. Cubley, 15 C. B. N. S. 701; Martin v. Beid, 11 C. B. N. S. 730.</p> <p>It was decedent’s duty to give appellant reasonable notice to redeem his stock pledged, so that he might have an opportunity of having the account transferred to himself, or some one for him; and the wrongful conversion of this stock, without this notice, renders her liable for the highest market value of the converted stock up to the time of trial, including all dividends, etc. Bank of Montgomery v. Beese, 26 Pa 143; Beitenbaugh v. Ludwick, 31 Pa 131; Persch v. Quiggle, 57 Pa. 247; Mus-grave v. Beckendorff, 53 Pa 310; Conyngham’s Appeal, 57 Pa. 474,</p>

January Term, 1887, No. 371, E. D., Error to the Common Pleas of Erie County to review a judgment in favor of defendant on a compulsory nonsuit in an action of trover and conversion, February term, 1883, No. 122.

January Term, 1888, No. 171, E. D., Appeal from a decree of the Orphans’ Court of Berks County dismissing an appeal from a decision of the Register of Wills, admitting a written instrument to probate as the last will of Hannah Johnston, deceased, and refusing a precept for an issue of devisavü val non to the Court of Common Pleas. Mrs. Shaaber, the appellant, and the appellees are children of Hannah Johnston, deceased.

October Term, 1887, No. 170, W. D., Error to the Common Pleas No. 2 of Allegheny County to review a judgment in favor of plaintiff in an action on a book account. The facts fully appear in the charge of Magee, J., which was as follows: This is an action brought by John Matthews against Wharton McKnight, doing business as the successor of Cavitt & McKnight. The defendant is substantially Wharton McKnight.

January Term, 1887, No. 292, E. D., Appeal of J ames B. Simes from a decree of the Orphans’ Court of Philadelphia County sustaining the exceptions to the adjudication of the account of the trustees… Held: on the ground that the charges created by the will were disproportioned to the fund embraced in that schedule, that schedule five had been intended; and the will was reformed accordingly. This case is only one of a multitude.

January Term, 1887, No. 27, E. D., Error to the Common Pleas of Chester County to review a judgment ■in favor of the plaintiff, in an action of covenant. This action was brought by Augustus Dottermus against David P. Humes, to recover a part of a fund which, the defendant had received on a fire insurance policy which covered certain tobacco owned in common by the parties.

<p>Where a deed to the grantor’s sister is not delivered until after the grantor’s death, the real estate conveyed by it is subject to collateral inheritance tax.</p>

January Term, 1888, No. 253, E. D., Error to Common Pleas No. 1 of Philadelphia County to review a judgment on a verdict for the plaintiff in an action of ejectment, June term, 1885, No. 198.

January Term, 1887, No. 433, E. D., Error to Common Pleas No. 2 of Philadelphia County to review judgment on a verdict for the plaintiffs in sheriff’s interpleader, December term, 1885, No. 836.

July Term, 1887, No. 67, E. D., Appeal from a decree of the Orphans’ Court of Bedford County distributing the personal estate of a decedent. Held: and that the legatee takes the personal estate subject to the charges devolving upon him in the character of executor. 3 Jarman, Wills, p. 504. Wills are to be construed as if made just prior to the decedent’s death. Act of June 4, 1819 (Purdon’s Digest, IT 13).

January Term, 1888, No. 140, E. D., Appeal from the Common Pleas No. 3 of Philadelphia County to review the action of said court in discharging a rule to open a judgment entered upon a judgment note.