Volume 100 — Pennsylvania State Reports

<p>Appeal from the Court of Common Pleas of Lackawanna county : Of January Term 3882, No. 272.</p> <p>This was an appeal by William H. Iieatli from a decree of the said court sustaining a demurrer to, and dismissing a bill in equity filed by him against Joseph Slocum.</p> <p>The facts of the case, as set forth in the bill in equity, were ' substantially as follows. On March 12th 1878, William H.IIeath, being seised of five several lots of ground in the city of Scrantou, gave a judgment note for the sum of $6240 to Joseph Slocum. Said judgment note was the same day entered up, constituting a lien upon the five several lots aforesaid.</p> <p>At various times Heath paid to Slocum on account of said judgment the sum of $480. In or about the month of August 1879, Heath caused a writ of fieri facias to be issued on said judgment, directed against the five several lots of ground aforesaid. The sheriff duly levied upon the said lots and advertised the same to be sold on August 9th 1879.</p> <p>Prior to this date, however, Heath entered into a parol agreement with Slocum, whereby it was understood that the lots should be sold collectively, and should be bid off at a nominal sum for Slocum, that a sheriff’s deed should be made to him therefor, and that he should continue to hold the title to said lots as secui'ity for the unpaid portion of the purchase money. It was further understood, that if said Heath should tenderte Slocnm the unpaid portion of said judgment within ninety days after the acknowledgment of the sheriff’s deed, Slocum would thereupon transfer the title to said lots to Heath or his nominee.</p> <p>The sheriff’s sale took place as advertised. The attorneys of both Heath and Slocum deterred persons present at the sale from bidding, by representing that the sale was for the protection of the defendant, and in pursuance of an arrangement between him and the plaintiff. The lots were all sold collectively for the gross sum of ^860, and a sheriff’s deed was therefor executed to Slocum. Heath, in pursuance of his agreement, also furnished $90 in money for the purpose of paying the costs of the sheriff’s sale.</p> <p>Subsequently, within ninety days of the acknowledgment of Slocum’s deed, Heath tendered to him the unpaid balance on the judgment, and demanded a transfer of the title to the lots, which Slocum declined to make, whereupon the present j^roceeding was instituted.</p> <p>The bill prayed that the sheriff’s deed to Slocum be decreed to be a mortgage, that an account be taken of the balance duo upon the judgment, and that upon payment by Heath of said balance, Slocum be decreed to transfer and convey to Heath, all his right, title and interest in and to the lots in question.</p> <p>Defendant demurred to the whole bill on the ground that it set forth no cause of action. The court, after argument, in an opinion by Handley, P. J., sustained the demurrer and entered a decree dismissing the bill. The complainant thereupon took this appeal, assigning for error the decree of the court.</p>

280. This was an appeal by Bichard Gilroy and others, from a decree of the said court, issuing and continuing a preliminary injunction against them.

276. Appeal of John Catterson from an order of the Orphans’ Court of Wayne county, striking off the withdrawal of an application by Bosa Stevens, widow of Alanson Stevens, to have $300 appraised and set apart to her out of her husband’s estate. The facts of the case were as follows: On February 22nd 1877 Alanson Stevens died seised, inter alia, of a one-half interest in a certain tract of land, of about sixty-one acres, in Sterling township.

Pleas of Lackawanna county: Of January Term, 1882, No. 45. Debt, by Patrick White and Catherine White his wife in right of said wife against the United Brethren Mutual Aid Society of Pennsylvania, upon a certificate of membership or policy of insurance issued by the corporation defendant upon the life of one Patrick Murray in the sum of $1,000 payable to Catherine White, daughter of the said Murray.

86. Ejectment, by B. B. Atterbury and Olivia P., bis wife, in her right, against Addison Sweetzer and others, for a lot of ground situate in tlie city of Scranton. Plea, not guilty. On the trial, before Mayer, B. J., it was admitted that tlie title to the premises in question was in Addison Sweetzer on September 14th 1861. The plaintiffs claimed title as purchasers at sheriff’s sale under a mortgage, and put in evidence the following chain of title:— Judgment.

176. Assumpsit, by Jolm Saylor against Jacob Busbong and Henry Bushong, trading as Bushong & Brother, bankers, upon the following check: No. 47. Reading, October 18th 1877. Bushong & Bro. Bankers. Stamp.] ■ Pay to John Saylor or order nineteeen hundred and ninety dollars. Wm. R. Yeicii, Treasurer. Indorsed : John Saylor. The narr. averred, inter alia, that the check had been presented to and accepted by the defendants, and that payment had been refused.

31. Indictment against Frederick Bice, for the seduction under an alleged promise of marriage of Margaret Bobertson, under twenty-one years of age.

181. Assumpsit, by Thomas Zell and Benjamin L. Eshelman against Iliram D. Benjamin, to recover a portion of the profits realized by the defendant upon the sale of a certain farm.

<p>Error to the Court of Common Pleas of Berks county: of January Term 18S1, No. 71.</p> <p>Covenant, by Daniel S. Hunter and Levi L. Springer, doing business as Hunter & Springer, against Isaac McHose, for breach of a contract under seal to deliver iron ore. The narr., as amended, declared on the following agreement, dated January 18th 1871:—</p> <p>.... “ Witnesseth that the said McHose agrees to furnish the said Hunter & Springer 3,000 tons of iron ore yearly from the Neikirk farm in Franklin county, Pa., at the rate of 250 tons per month, for three years from the time of commencing operations there, delivered on cars at his siding, at the following prices, viz......The ore is to be washed with the Bradford screen — and settlements made monthly by a three months note without interest.” .... The narr. averred that under said agreement the defendant was bound to commence mining operations in the Neikirk farm within a reasonable time after the date of said agreement, and that defendant did not, &c.”</p> <p>The narr. further averred as follows: “ And the said plaintiffs aver, that said period of commencing operations at the Neikirk farm as set forth in said indenture, was to be not later than the month of May next following, to wit: May, a. d. 1871, at or about which time the said plaintiffs were to begin and did begin the manufacture of pig-iron at Franklin Furnace aforesaid, and for which said furnace the said 3,000 tons of pipe ore yearly, for the period of three years was intended and provided, all of which was fully understood and agreed upon, by and between the said defendant and plaintiffs, at the time of making of said indenture.....And the said plaintiffs in fact say that the defendant did not nor would commence operations, that is to say, the mining of ore at the Neikirk farm, within the time limited for that purpose, that is to say, before the first day of June 1871, &e., but on the contrary did not nor would, although often requested, furnish the plaintiffs the said ore washed with the Bradford screen, or any part thereof, and still neglect and refuse so to do.”</p> <p>Plea, covenants performed, absque hoc.</p> <p>On the trial, before Sassaman, J., the contract having been put in evidence, the plaintiff offered, under the above recited count in the narr., to prove, by witnesses present at the time the said contract was written and executed :</p> <p>“ That while said articles of agreement were being prepared, and contemporaneous with the execution of the said agreement of dissolution of the firm of McHose, Hunter & Co., the defendants asked the plaintiffs ‘ when they expected to resume work at the Franklin Furnace, and would require the ore from the Neikirk farm.’ That the witness (Levi L. Springer) replied that they expected to resume work by the month of May following, and that they would then require the ore. That the defendant then promised and agreed to commence operations— that is to say, the mining of ore on the Neikirk farm, immediately, and that he would have a sufficient supply for the plaintiffs, under the terms of the agreement, by the month of May following ; that, except for said promises and undertaking, the plaintiffs would not have entered into said agreement of dissolution, or the agreement in suit, both of which were executed contemporaneously by the parties.</p> <p>“ This evidence is offered for the following purposes :</p> <p>“ 1. To show a contemporaneous parol promise and agreement on the part of the defendant, upon the faith of which the plaintiffs entered upon the contract in suit, without which they would not have accepted or executed the same.</p> <p>“ 2. To supply an omission in the contract in suit which was occasioned by accident, mistake or inadvertence.</p> <p>“ 3. To explain a latent ambiguity in the contract in suit with reference to the time when the defendant was to begin to supply the plaintiffs with ore.</p> <p>“ 4. As explanatory of the situation of the parties at the time of the execution of the contract with reference to each other and the subject matter of the contract.”</p> <p>Objected to, on the ground that this being an action of covenant, parol evidence is not admissible to contradict the instrument sued on, and further because the narr. does not a""’ that the alleged contemporaneous agreement was omitted from the sealed contract by fraud, accident or mistake. Objections sustained, and offer overruled; exception.</p> <p>The plaintiffs made other offers, in various forms, of a similar character to the foregoing, to which objections were made, and the offers were in each case overruled.</p> <p>It was proved that about the end of March or beginning of April 1873, McHose sold to the Minersville Iron Company the ore bank on the Nekirk farm, without reserving any ore rights for Hunter & Springer under his contract with them. The broach of contract by him from that date was not denied, and it was agreed by counsel, for the purposes of the suit, that the damages for such admitted breach should be fixed at $3,000.</p> <p>Yerdict for plaintiffs, for $3,000, and j udgment thereon. The. plaintiffs took this writ of error, assigning for error the rejection of their offers of testimony, as above stated.</p>

<p>A., being the owner of a tract of land, conveyed a portion thereof to B., granting also to the said B. the free use and privilege of a road through the remaining part of said tract. Held, that the right of way granted as aforesaid was appendant or annexed to the land conveyed, and that it might be used and enjoyed by all those owning, or lawfully occupying said tract, for any purpose to which it might from time to time be legitimately applied.</p>

78. On May 1st 1875, a judgment was entered on a bond and warrant of attorney in favor of Horace Roland against J. Ross Miller and William Miller, for $500. In 1879 the plaintiff issued a scire facias post annum et diem to revive said judgment, et quare executionem non, against the said defendants, with notice to William Wanner, terre-tenant.

10. This was an appeal by Joseph Richard from a decree of said court, dismissing a bill in equity filed by him against James E. Cherrington, George Himmelberger and Sarah his wife, M. S. Tliirwechter and Adam C. Klopp, praying that a certain deed executed by complainant to said Cherrington be set aside and cancelled on the ground that the same was procured by fraud perpetrated by Cherrington, and that possession of the premises thereby conveyed, be restored to the…

246-J. This was an appeal by Michael Ilaak from a decree distributing the proceeds of a sheriff’s sale of real estate of Charles II. Miller. The auditor appointed to distribute the fund found the material facts to be as follows :— • On April 6th 1871, Charles H. Miller executed a bond and warrant of attorney to Michael Ilaak for $2,000, on which judgment was entered the same day.

<p>1. In the absence of any special local Act, a sheriff’s sale of real estate under a junior incumbrance will divest the lien of a prior mortgage, where there is any tax, charge, assessment or municipal claim remaining unpaid, which has been duly entered prior to the recording of the mortgage.</p> <p>2. The Act of March 23rd 1867, § 3 (Pamph. L. 43), was intended to prevent the divestiture of the lien of a mortgage by a sheriff’s sale, under a junior incumbrance, both where a municipal claim has been filed, which, though accruing subsequent to the mortgage, has by law priority given it; and also where any taxes, charges or assessments have been filed, which accrued subsequent to the mortgage, and have by law like priority given them. It was not, however, intended to prevent the divestiture of the lien of a mortgage by a sheriff’s sale under a junior encumbrance, where taxes, charges, assessments or municipal liens had acciued, and claims therefor had been filed prior to the recording of the mortgage.</p> <p>3. Rhein Building Association v Lea, post, p. 210, distinguished.</p> <p>4. The law relative to the discharge of mortgages by sales under junior encumbrances, where taxes, charges, assessments or municipal claims have been filed, reviewed and explained.</p>

37. Assumpsit, by Daniel K. Grim, Ileniy Grim and George Grim, trading as D. K. Grim & Oo., against George Stephenson, to recover the price of goods alleged to have been sold and delivered by plaintiff's to defendant. Plea non-assumpsit. On the trial, before El well, P. J., the facts appeared to be as follows : — On December 31st, 1879, James W. Stephenson called at the store of Grim & Co., in Philadelphia, and selected a lot of dry goods of the value of $131.39.

Of January Term 1882, No 94. Appeal of George J. Ivutz, administrator of De Walt Kutz, deceased, from a decree of said court, dismissing his exceptions to the report of a Master, confirming the report, and dismissing his bill.

<p>Appear from the Orphans’ Court of Berks county: Of January Term 1881, No. 11.</p> <p>Appeal of Jacob Reeser and Ellen his wife, in her right, from a decree of said court, dismissing her exceptions to the report of the auditor appointed to audit and restate the account of George 0. Iiartman, administrator of Daniel Hartman, and confirming the said report. The facts are stated in the opinion of this court.</p> <p>The said exceptions were as follows:</p> <p>1. The auditor erred in allowing the accountant a credit of $67.57 as costs and expenses of perpetuating testimony in his claim against the estate by bill in equity.</p> <p>2. in allowing the counsel fees and compensation — the latter being excessive and the former being largely incurred in prosecuting the accountant’s own claim against the estate.</p> <p>3. In allowing the accountant a credit of $481.61, being a deposit in the Reading Savings Bank, which was lost by the negligence of the accountant.</p> <p>After argument the court dismissed the exceptions, in the following opinion by Sassaman, J.:</p> <p>“ Upon an examination of this auditor’s report we find that all his conclusions of law, to which there are exceptions, involved the finding of facts. If the conclusions of fact obtained by the auditor are correct, we see no reason to interfere with his application of the law. Should we be asked to interfere with the auditor’s work in matters of fact % We do not think so, so long as there were facts before him to sustain his conclusions. If there were gross errors in this respect, we feel that it would be our duty to reverse and open his findings, for reasons that would seem sufficient for us to set aside a verdict. In this case we discover no such reasons, and hence consider the findings conclusive. . .</p> <p>“ The exceptions are dismissed and the auditor’s report is confirmed absolutely.”</p> <p>Jacob Reeser and Ellen his wife thereupon took this appeal and filed the following assignments of error.</p> <p>1. The court erred in dismissing the exceptions filed by the appellants, and in confirming the, auditor’s report.</p> <p>2. In not striking from the administrator’s account the credit of $07.67, being the costs incurred by George 0. Hartman in perpetuating the testimony of witness by bill in equity, in his claim against the estate.</p> <p>3. In allowing the accountant $600 commission and $250 for fees paid to his counsel.</p> <p>4. In allowing the accountant a credit of $419.58 lost by the insolvency of the Reading Savings Bank, over eighteen months after letters of administration had been taken out.</p> <p>5. In finding that Ellen Reeser was advanced $4,500 by the decedent, and that George C. Hartman was intended to be equally advanced, but had only received on said intended advancement $2,000, leaving still’ due him out of the estate $2,500 on account thereof, and allowing interest thereon.</p> <p>6. In finding that the indebtedness of Ellen Reeser to her father’s estate is $13,577.75 ; that she is only entitled thereon to a credit by way of distribution of $11,506.56, and .that slio is indebted to the estate, that is, to George O. Hartman, the difference of $2,071.18.</p>

<p>1. The owner of a certain lot of ground conveyed the same to trustees to be used as a grave-yard, reserving “ the right and privilege to and for the said grantor, and every member of his family or their offspring, to mark oil within the boundaries of the above-described lot, one square perch of ground in any locality thereof where they may think proper for their own and separate use forever for the burial of the dead.” Held, that the privilege thus reserved was personal to the grantor and his family, and was incapable of assignment to a stranger.</p> <p>3. A stranger, claiming under an assignment from the said grantor of all his right, title and interest under said reservation, took possession of a lot in the said grave-yard without due authority from the trustees, and erected a fence round it. The trustees notified him to remove the fence, and, on his failing to do so, caused the same to be demolished. In an action of trespass by the stranger against the persons removing the fence under the authority of said trustees — Held, that the defendants were entitled to judgment.</p>

247. This was an appeal by William E. Yeager and Ephraim Grim, from a decree directing them to pay to M. S. Weidner, the sum of $495.77, being one-third the net profits of certain real estate purchased by said Yeager and Grim, and afterwards sold at a profit, as to which the court held they were trustees for themselves and said Weidner in equal third parts.

71. Case, by Josiah Puff against Willoughby K. Brobst, to recover damages for an alleged malicious prosecution. Plea, not guilty. íhc narr.,, as filed, concluded thus : “Whereof he saith he is worse and has damage, &c. And therefore he brings suit, &c.” After verdict the court, on motion of plaintiff, permitted the plaintiff to amend the narr., by inserting after “ damage, &c.,” the words “ one thousand dollars.” Exception.

<p>1. Where a person whose death has been caused by negligence leaves him surviving a widow, but no children, and also parents, the right to recover damages is by the Act of April 26th 1855 (Pamph. L. 309) vested solely in the widow, and the parents are not entitled to any part of the damages which she may recover.</p> <p>2. Where the death of a person is caused by negligence, tbe only damages recoverable are for tbe injury to the relative rights of the surviving members of the family, and are compensatory in their nature. Where, therefore, a chi Id is free by age or emancipation, and lives apart from his parents, and in no way contributes to their support, his parents cannot maintain an action to recover damages for his death.</p> <p>3. Semble, That even if a child be of full age, yet if the family relation exists in fact, and his parents have a reasonable expectation of pecuniary advantage from him, they can maintain such action.</p> <p>4. In an action by the parents to recover damages for the death of a minor child, they can recover only the value of his services during minority, and in addition the expenses caused by the injury and death.</p>

Assumpsit, by the National Loan and Building Association against Charles Lichtenwalnex’, upon this contract:— “ I hereby guarantee the payment of the within'certificate. “ April 24, Í877. .

' Error to the Court of Common Pleas of Lehigh coimty: Of January Term 1882, No 79. Assumpsit, afterwards, by amendment, debt, by Joseph Keller against the Township of Whitehall, to recover the amount of an award of a road jmy in his favor, with interest thereon.

78. Appeal of Beuben Buck from a decree of the Court of Common Pleas of Lehigh county, distributing the proceeds of certain real estate sold under order of the court by Alvin F. Creitz, assignee for the benefit of creditors of Samuel P. Oswald. ' The auditor appointed to award distribution of the fund found the facts to be as follows : — On April 7th 1873, Jacob J. Oswald was the owner of two tracts of land in Lehigh county.

167. Ejectment, by David Burger against Solomon Dankel and Henry Merkel, to recover a lot of ground in Lower Milford township. Plea, the general issue. On the trial, before Albright, P. J., both parties claimed under Daniel Walter, Jr., deceased, in whom title was vested in his life-time to the premises in question by the will of his father, Daniel Walter, Sr., proved in 1874.

61. Case, by E. C. Kline against the Borough of Maucli Chunk, to recover damages for personal injuries suffered by the plaintiff by falling in the highway. The narr. averred that the fall was occasioned by an accumulation of ice and snow in ridges which the defendant negligently permitted to remain upon and obstruct the said highway. Plea, not guilty.

345. Assumpsit, by David 'Williams against the First National Bank of Allentown, to recover the amount of a deposit of $6000 made by the plaintiff, as alleged, with the hank defendant, with interest… Held: in 1875 and 1876, 1560 shares out of the .total issue of 2500 shares of the capital stock of the First National Bank of Allentown. In March, 1877, the said bank became embarrassed, and the plaintiff demanded payment of the certificate, at the bank, from Wm. II.

22. Case, by Charles E. Gere against J. C. Olmsted and Leland Bailey, to recover damages for alleged malpractice in the surgical treatment of a broken leg. Plea, not guilty.

<p>1. In a scire facias against heirs and devisees to continue the lien of a judgment entered against an executor within five years of the decedent’s death, the defendants may contest the debt, not the lien.</p> <p>2. It is no defence in such case, that at the time of decedent’s death he had sufficient personal property to pay the judgment.</p> <p>3. Terre-tenants and devisees may be joined in a scire facias against an executor, to continue the lien of a judgment entered against a decedent in his lifetime. It is the better practice, however, first to obtain judgment against the executor, and then to bring in the devisees and terretenants by a subsequent proceeding.</p>

<p>A. desiring to effect a policy of insurance upon certain premises, applied to B., an insurance broker, to procure it for him. B. applied to another broker O., and 0. to still another broker D. D. applied to the agent of an insurance company, who agreed to take the risk. Neither B., C. nor D. were agents of the company in question. In due time, the agent aforesaid made out, and delivered the policy to D., but without demanding payment of the premium. The policy contained a clause, specially providing that it should not be considered binding, until actual cash payment of the premium into the office of the company; and it was further stipulated therein, that no waiver of any provision thereof should be effectual, unless in writing under the signature of the secretary of the company, and that no agent should have power to violate any of the said provisions. D. transmitted the policy to 0., C. to B., and B. to A. A. paid the premium to B., and B. paid it to C.; but C. never paid the same to D., nor did D. pay it to the company, or its agent. A loss having occurred under the policy, and suit being brought thereon by A., the company defended on the ground, that the policy had never gone into effect by reason of the non-payment of premium. Held, that the action of the agent of the company in transmitting the policy without receiving the premium thereon, did not amount to an attempt on his part to waive the conditions thereof, in that respect. Held further, that even if said action did amount to an attempt on his part to waive said conditions, such waiver was of no force or effect, because beyond the scope of his power, under the terms of the policy. Held further, that B. was to be regarded as the agent of A., and not of the company; and that therefore the payment of the premium to him was not a compliance with the conditions of the policy. Held, therefore, that the company defendant was entitled to judgment.</p>

3, of Philadelphia county: Of January Term 1882, No. 170. Case, by Joseph McGowan against John Gillespie and Thomas Gillespie, to recover damages for the death of his son Joseph. McGowan, Jr., a boy seven years and ten months old, wlio was drowned in a well upon the defendant’s land. The plaintiff averred that the well being in proximity to a public highway the defendants negligently left it uncovered and unguarded.

<p>Error to the Court of Common Pleas, No. 2 of Philadelfhia county: Of January Term 1882, Mo. 243.</p> <p>Attachment sur judgment by Eleanor J. Mintzer by her next friend Sabia Chester against George W. Mintzer, defendant, and Alexander Thackara, surviving trustee and executor under the will of William G. Mintzer, deceased, garnishee.</p> <p>On the trial of the cause the following facts appeared : William G. Mintzer by his will bearing date April 24th 1S69 and subsequently duly admitted to probate bequeathed various legacies and further provided as follows :</p> <p>“ Item. — I do give, devise and bequeath to my said executors, hereinafter mentioned, all the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever the same may be, to hold to them, my said executors and the survivor of them, in trust for the following uses and purposes, and for no other use, intent or purpose whatsoever, that is to say : In trust to lot, lease and demise the real estate, and keep invested the persona], estate in bond and mortgage, or some other safe and substantial securities, and to collect and receive the rents, interest, income and profits thereof; and out of the said income shall pay all the expenses necessarily incurred in keeping the said real estate in good order and repair, and all taxes and lawful charges that may be assessed or levied as well upon the said real estate as the said personal estate, and also pay all expenses attendant upon the collection of the said rents and income, and shall pay over and distribute the net-income of the estate, real and personal, as follows : One-tliird part thereof to my son, George Washington Mintzer, for and during all the term of his natural life.”</p> <p>Testator further directed the remaining two-thirds of the net-income as aforesaid to be equally distributed between his two daughters and further made disposition of the corpus of his said estate after the death of his said children.</p> <p>Testator further provided as follows :</p> <p>u Item. — It is expressly my will that the income which I have hereinbefore directed to be paid to my children respectively is to be for their respective, sole, separate and exclusive use .and benefit (my daughter’s shares to be in no way liable for the debts, or subject to the control of any husband that either of them may take), so that the same shall not be in any manner pledged, appropriated, disposed of or parted with by anticipation, or before the same shall have accrued and become payable, nor be subject to execution, attachment or sequestration for any debts or liabilities whatever.”</p> <p>Tie further nominated his friends Samuel AY Thackara and Alexander Thackara as his executors and trustees. The said Samuel W. Thackara afterwards died. The plaintiff. Eleanor J." Mintzer was the wife of the testator’s son George W. Mintzer. In 1876 said plaintiff instituted proceedings in divorce against her said husband, and in 1881 obtained a divorce a mensa et thoro with alimony at the rate of $90 per month. The said alimony being unpaid plaintiff issued the present attachment against that portion of the net income of William G. Mintzer’s estate due and owing to Geoi’ge W. Mintzer. The garnishee admitted that he had in his hands the sum of $795.6T due to said George W. Mintzer, but denied that the same was under the terms of testator’s will liable to be attached.</p> <p>The court instructed the jury to find for the plaintiff subject to the point reserved whether the fund in the hands of the garnishee was properly subject to the attachment. Yerdict accordingly. Subsequently the court entered judgment for the plaintiff on the point reserved, whereupon the garnishee took this writ, assigning for error the action of the court in enter' ing judgment for the plainiiff on the point reserved.</p>

<p>1. The fact that the principal in a contract is not liable thereon by reason of her coverture, constitutes no defence in an action against a surety who has become such in view of the principal’s disability.</p> <p>2. A married woman holding shaves in a building association prior to the enabling Act of April 10th 1870, Pamph L. 16, borrowed money from the association on her shares, and gave to secure the loan a mortgage on her individual property, and her husband’s bond conditioned for the payment of the sum borrowed with interest, fines, premiums and monthly dues. Default being made by her in her payments of premiums and dues, judgment was entered against her husband on the bond. In an application by him to open the judgment, — Held, that though the wife was not liable by reason of her coverture, this fact constituted no defense on the part of the husband who had become Ms wife’s surety in view of her disability.</p>

3, of Philadelphia eounty: Of January Term 1882, No. 199. Assumpsit, by William Campbell, against W. W. Laird, upon a promissory note made by Laird, July 2d 1877, to the order of Campbell, for $253.13, with interest, payable five months after date; also on a book account containing entries, dating from September 24th 1877, to October 5th 1877, amounting to $14:7.

<p>Error to the Court of Common Pleas No. 4, of Philadelphia county: Of January Term 1882, No. 163.</p> <p>Ejectment, by John M. Armington et al. against Peter Ran, defendant, and Frederieka Ivnoell, Christopher ICnoell and Charles Emoell, intervening defendants, for a house and lot of ground in the city of Philadelphia. Plea “ not guilty.”</p> <p>Upon the trial, before Briggs, J., the plaintiffs submitted a brief showing the following facts, which were admitted: — On April 2d 1847 John Malin recovered a judgment against John F. Armington which became a lien on the premises in question, then owned by Armington. By deeds of conveyance and re-conveyance, dated and recorded respectively December 17th and 20th 1851, each reciting a nominal consideration of $1,000, John F. Armington and Catharine his wife granted the said premises to one Hibberd, who recoiiveyed the same to said Catharine, wife of John F. Armington. On April 1st 1852, the Malin judgment was revived, by agreement, against John F. Armington, without notice to his wife. Catharine Armington died March 15th 1856, leaving to survive her said husband and five children. Under an execution on the Malin judgmeut the premises in question were sold at sheriffs sale on July 24th 1856 to John ‘Wurfflein, under whom the defendants derive title.</p> <p>John F. Armington died February 5th 1877. This action was brought by the surviving children of Mrs. Catharine Arming-ton in September 1877.</p> <p>The plaintiffs submitted the following points :—</p> <p>1. If you are satisfied from the evidence that John F. Armington was, on December 17th 1851, the owner of the property in question and conveyed it to Josiah Hibberd, who in the same month conveyed it to Catharine Armington, that the plaintiffs are the children of Catharine Armington, who died March 15th 1856, and that her surviving husband died in February 1877, then the plaintiffs are entitled to a verdict. Declined.</p> <p>2. The deed from Hibberd to Catharine Armington must bo presumed to have passed a proper title to her, unless it is showm that the transfer was made for the purpose of defrauding some creditor under whom the defendants claim, and that such creditor was, in fact, defrauded by the conveyance, or would be defrauded if the conveyance was sustained, and without convincing evidence of such fraud your verdict must be for the plaintiffs. Declinedy in view of the evidence.</p> <p>3. If the judgment of Malin v. Armington, was obtained on April 2d 1847, and revived by Armington’s agreement on April 1st 1852, after his conveyance of the property to Ilibberd, without notice to the person holding under that conveyance, then such judgment ceased to be a lien on the premises, and the sheriff’s sale under that judgment passed no title to the purchaser which -can be asserted against the plaintiffs’ title. Declined.</p> <p>5. Under all the evidence in the case, your verdict, must be for the plaintiffs. Declined.</p> <p>The court charged, inter alia : “ This (Malin) judgment was an existing debt against Armington, and the sheriff’s sale conveyed a good title to. Würfñein, through whom the defendants claim, unless Armington was solvent at the time he conveyed to Ilibberd, or Hibberd was a purchaser for value.”</p> <p>Verdict and judgment for the defendants, whereupon the plaintiffs took this writ of error, assigning for error, inter alia, the refusal of their points, as above, and the portion of the charge quoted.</p>

I of Philadelphia coxmty: Of January Term 1882, No. 239. Assumpsit, by William Sellers & Co., against Bernard Corr to recover the price of certain repairs to a brick machine. On the trial before Thayer, P. J., plaintiffs called their sales clerk, by whom their sales book or book of original entry was identified wherein was contained the following charge:— “ B. Corr, Dr.” “ July 13th 1880. To repairing brick machine, $1,932.76.” Plaintiffs then offered the book in evidence.

4 of Philadelphia county: Of January Term 1882, No. 184. Assumpsit, by the Girard Life Insurance, Annuity and Trust Company of Philadelphia, administrators of Edwin Magarge, deceased, to the use of Sarah K. Magarge, against the Mutual Life Insurance Company of New York, to recover the amount of a policy of insurance issued by the company defendant in the sum of $10,000 upon the life of said Edwin Magarge.

<p>Appeal from the Court of Common Pleas No. 1, of Philadelphia county: Of January Term 1882, No. 250.</p> <p>This was an appeal by Augustus Reimer and Caroline A. Reimer from a decree of the said court enjoining the appellants from maintaining a certain hay or jut window and ordering them to remove the same.</p> <p>Information, in the nature of a bill in equity, filed by the attorney-general of the commonwealth on behalf of the commonwealth against Augustus Reimer and Caroline A. Reimer. The information set forth that Broad street in the City of Philadelphia was laid out of a uniform width of one hundred and thirteen feet between the building lines, and that said street was between Brown and Poplar streets built up on both sides with expensive residences, all of which extended up to the building line only or receded therefrom.</p> <p>That defendants were the owners of a certain dwelling-house on the east side of said Broad street between Brown and Poplar streets which had been erected many years previously upon the building line, and that defendants had recently caused to be projected from the front wall of said dwelling-house at the second story thereof, a bay or jut window projecting beyond the established building line about three feet and six inches.</p> <p>The information further averred that said encroachment upon the highway ivas a public nuisance, not only infringing the rights of the commonwealth but greatly injuring and depre-’ ciating the value of adjacent property by the obstruction of light, air and view necessarily ensuing therefrom.</p> <p>The information further averred that said encroachment was wholly without authority and in violation of law; and therefore prayed for an injunction to restrain defendants from maintaining said encroachment and that they be ordered and directed to remove the same.</p> <p>The defendants filed an answer setting out an ordinance of city councils passed September 8th 1881 specially authorizing them to construct the hay window in question, the same to extend three feet from the building line. The answer averred that said window did project about three feet and that the bottom thereof was at least sixteen feet above the sidewalk. The answer denied that said bay window constituted any impediment to the highway or in any way depreciated the value of the adjacent premises, and also denied that the same was either a private or a public nusiance.</p> <p>The answer further averred that respondents had attempted to erect the bay window in question before the passage of the ordinance of councils aforesaid, but that an in junction liad been issued at the instance of the city to restrain them from so doing, whereupon they had modified their plans to meet the objection of the adjacent property owner, who had instituted said proceeding. The answer further averred that defendants believed the present bill to have been filed at the instance of a property owner on the opposite side of Broad street, that the removal of the window would subject them to great expense and would in no way benefit the jrablic, and that, even if public or pad vate rights were interfered with, there was an adequate remedy at law.</p> <p>The cause being heard on bill and answer, the court entered a decree ifi accordance with the jirayers of the bill, Allison, P. J., delivering the following opinion :—</p> <p>“ This proceeding is instituted by the attorney-general, on behalf of the Commonwealth of Pennslyvania, against the defendants, to restrain an alleged encroachment upon one of the highways of the city of Philadelphia. The information, which is in the form of a bill in equity, sets up that the defendants are the owners of jraemises 805 North Broad street; that many years ago a dwelling-house was erected on the lot of ground now owned by defendants, which did not encroach on the highway : that recently they have caused to be projected from the front wall of said dwelling-house, at the second story,' a. bay or jut window, which extends beyond the building line over or into the highway about three feet six inches. It is charged that such encroachment is a jrablic nuisance, which not only is an infringement on the rights of the commonwealth, but that it also greatly injures arid dejireciates the value of adjacent jiroperty, by the obstruction of light and air.</p> <p>“ The prayers of the bill are that defendants be perpetually restrained from continuing to maintain said window, and that they be directed to remove the same.</p> <p>“The averments of the bill are admitted in the answer to be substantially true, but defendants justify that which they have done by citing an ordinance of the councils of Philadelphia, passed the eighth day of September 1881, approved by the mayor, which gives jiermission to Augustus Reimer to construct or build the bulk or oriel window in question. The permission is to extend the window three feet from the line of the building, and it is required to be sixteen feet above the sidewalk of the street.</p> <p>“ This raises an issue which involves the invalidity of the ordinance under which the defendants undertake to justify the encroachment of which the commonwealth complains. The ordinance is of no doubtful meaning ; in express terms it grants permission to Augustus Keimer to construct or build the window in question. Does this license justify the defendants in what they have done?</p> <p>“This question has been so recently considered and decided by this court in the case of Commonwealth v. Harris, 10 W. N. C. 10, affirmed on appeal by the Supremo Court, that we might rest content with referring to the opinion of Judge Bidele, as containing all that we would be required to say upon the right of councils to grant, by special license, authority to construct bulk or bay windows extending into the highways of the city.</p> <p>“The power which councils possess over this subject is stated to be derived from the thirtieth section of the act of the 16th of April 1838, which empowers them to make and establish rules and regulations for the better regulation of jut or bay windows. This power to make rules and regulations which shall confer a general or common right, in which all shall equally participate, does not authorize the granting to one and the withholding from another a permission to construct jut or bay windows according to the caprice or will of councils.</p> <p>“ The judge says, if each case is to be individually passed upon, and does not depend upon its conformity to a general rule, this would be the result, not only in regard to bay windows, but for every other purpose for which it would be desirable to occupy the highway. This is characterized as special legislation on subjects of general interest and concern, forming no rule or regulation for all alike, but giving invidious privileges to the favored few at the expense of the many, which is contrary to the whole spirit and intent of the authority intrusted to councils by this law.</p> <p>“ I have given this extract from the opinion of the court, that greater emphasis may be placed on the fact, that notwithstanding this clear and forcible statement of the law, and its affirmance by the Supreme Court, councils a short time after the decision of the case of Commonwealth v. Harris, on the 24th of June 1881, passed an ordinance, in which they again impliedly asserted their right to grant special licenses to individuals to erect and maintain bay or oriel windows in the public highway beyond the building line.</p> <p>“This action of councils was followed by the passage of the ordinance of September 8th 1881, upon which defendants ground their justification.</p> <p>“ That this last-recited ordinance is without force or virtue of any kind or in any degree, does not admit of question ; it is in direct conflict with the decision of this court, and with that of the highest judicial tribunal in the commonwealth. We therefore put it aside as having no proper standing in the cause and ás affording no shadow of justification to the defendants, who are presumed to have known the worthlessness of the license under which they now seek to protect and defend themselves against the commonwealth’s charge of having set up an unlawful obstruction in the highway.</p> <p>“We might be content to rest the decision of the case upon this ground alone, but as making more clear the want of an equitable defense to the case of the commonwealth, it is proper to refer to those portions of the answer by which it is made apparent that this window, as first set up, was without license of authority of any kind to justify it. In March 1881, it was in part or in whole constructed. The city then interposed by injunction to restrain the defendants from maintaining the obstruction which is the subject of the present controversy, and that in order to satisfy the complaint, which was then made against it by a property-holder, the defendants say, ‘ We did reduce said projection at least two feet, and that the bay window now erected is of said reduced dimensions.’ This was some three months before the passage of the general ordinance of June 24th 1851, and at least five months prior to the special license, attempted to be granted by that of September following. The encroachment, as originally created, extended over the footway at least five feet, and, as now constructed, is in excess of the limit prescribed in the ordinance. It is charged in the bill that the window projects over or into the highway three feet six inches, and this is virtually confessed to be so by the evasive statement contained in the answer, that the extension is about three feet. There is no need for uncertainty in the answer of the defendants on this point, and every infer-' ence must be taken most strongly against them, when precise information is withheld which it is in their powrer to give.</p> <p>“ If the ordinance of September 8th 1881 granted to the defendants an authority to build this window, which we hold it does not, or sought to ratify that which had been done, the defendants have exceeded the limit prescribed by councils, and in this aspect of the case are to be regarded as wrong doers, and therefore not entitled to the consideration which they claim at the hands of a court of equity.</p> <p>“ The defendants object to relief being granted as prayed for; first, because, the removal of the window will subject them to great expense and will in no way benefit the public; and, second, because, whether private or public rights are interfered with, there is an adequate remedy at law for the same.</p> <p>“We regard the first reason assigned as entitled to ho consideration, because the encroachment was begun and practically completed without pretence of right or authority.</p> <p>“ In support of the second ground of objection the defendants cite Angelí on Highways § 280, and Attorney-General v. New Jersey II. R., 2 Green Ch. 136. The principle stated in Angelí is, that injunctions to restrain encroachments on highways are rare, and that they should be granted with great care, to which the reply is that all injunctions should be granted with care; but it does not follow that where public rights are invaded, an injunction will not be granted. In such case no question of the amount of damage is raised, but simply one of the invasion of a right. This is the doctrine announced in the case of the Commonwealth v. P. & C. R. R. Company, 12 Harris 159. In the opinion of the court the case is cited of the Attorney-General v. The Cohoes Company, 6 Paige 133, where an attempt was made to tap the State canal, which was stopped by injunction without regard to evidence tending to disprove damage; and in Downing v. MeFadden, 18 Pa. State 334, the keepers of the public works were justified in abating a house that encroached on the embankment of the railroad, though a jury had found that it did no injury.</p> <p>“The doctrine is rejected that injunctions can apply only to very great injuries, from which it would follow, as Lowrie, J., remarks, that he who has not nfueh property to be injured, can not have this protection for the little that he has.</p> <p>“ Nor do wo regard this as a case in which the doctrine of de minimis invoked by the defendants is applicable. It is an invasion of a common right; it is taking for private use that which belongs to the public ; it is a continuing encroachment on or over the highway, and though it is not unusual to prosecute by indictment those who create nuisances by obstructing highways, yet there are cases in which injunctions ought to be granted to prevent the creation or continuance of such nuisances: 5 Vesey 126; 1 Mad. Ch. 159; Eden on Injunctions 11. The injury is also substantial and material, inasmuch as it is calculated to interfere with the right and comfort of individuals, and is not adequately reparable by damages at law. We do not know that we can better express the views we entertain on tills subject, than as we have had occasion to state them, in the case of the Attorney General v. Lombard & South Street R. R. Co., 1 W. N. C. 491, which we adopt as largely applicable to the case in hand.</p> <p>“ It is not to be denied that the present case differs upon its facts from those in which injunctions to restrain encroachments on highways have usually been grounded. The encroachment in the case before us does not consist in an obstruction of the ordinary right of passage along or over a street or highway, a highway being defined to be a road given to the public, passing from one public place to another public place. .The right of passing along or over a road has connected with it certain incidents which are essential to the proper enjoyment of it, such as light and air and view. If a highway should be covered over, for instance, by the owners of property fronting on either side of it, so as to shut out the light from above, its enjoyment would not only be greatly interfered with, but it might often be rendered dangerous and practically useless. Projecting windows from an upper story interfere to some extent with the ordinary and proper enjoyment of rights which are free to all, and one who appropriates the space above the footway creates a purpresture by making several to himself that which ought to be common to many. It cannot be successfully maintained that owners of property fronting on a highway have any such right as this, and when there is a purpresture set up, and such purpresture constitutes a nuisance as well, by a wrongful appropriation of a portion of a highway, courts of equity may forbid the continuance of such nuisance and abate the same by injunction.</p> <p>“It is doubtless true that there are cases in which the principal of do minimis may be successfully invoked to prevent the granting of an injunction by the courts of this commonwealth. The fact, however, is not to be forgotten or overlooked that to no small extent this doctrine, as applied in the English courts, and in some of the State courts in our own country, is to be regarded as modified by our own legislation. Our equity jurisdiction is wholly statutory, and rests not on common law principles, except in so far as the legislature have in general terms conferred upon the supreme court and courts of common pleas, the jurisdiction and powers of a court of chancery, in relation to the several matters specifically mentioned in the Act June 16th 1836, and the several acts which follow it on the same subject. One of the powers expressly granted by the Act of 1836 is the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals, and affording specific relief when a recovery in damages would be an inadequate remedy.</p> <p>“ It will be seen that the power is not only to prevent the commission, but is extended to the continuance of acts which are unlawful, and by which the interests of the community or the rights of the individual citizen are injuriously affected.</p> <p>“ In this case we hold that the construction of the window is wanting in sufficient legal authority to justify its erection, having, as we have seen, no pretence of right to support it in the first instance, and an invalid ordinance on which to rest afterwards, and that it is even of greater extension than was contemplated by that ordinance. We are also of the opinion that the obstruction is both prejudicial to the interests of the community and the rights of individual property holders in the neighborhood, and that the persons injured would not be adequately compensated by a recovery of damages ; the evil being a continuous one, leading to an endless repetition of suits at law, in which the damages to be recovered would be more than nominal.</p> <p>“ As courts of equity in this State have power to prevent and restrain, not only the commission but the continuance of acts such as we regard this to be, the injunction prayed for is granted.”</p> <p>Respondents thereupon took this appeal, assigning for error the decree of the court.</p>

<p>Error to the Court of Common Pleas No. 4, of Philadelphia county: Of January Term 1882, No. 241.</p> <p>Attachment execution by the Richmond Building and Loan Assocation to the use of J. C. McCaffrey against Peter Donohue, defendant, and the Richmond Building and Loan Assocation, garnishee.</p> <p>On the trial, before Elcock, J., the facts of the case appeared to be as follows:</p> <p>Peter Donohue was, in 1871, the holder of fifteen shares of stock in the Richmond Building and Loan Association, first seríes, and, in October of that year, received a loan of $200 a share, in all $3,000, for which he executed a bond and mortgage of a property on Eleventh street and made transfer of his shares to the association in the usual manner.</p> <p>Subsequently he took four shares in the fifth series of stock and borrowed the further sum of $800 upon mortgage of the same property.</p> <p>In 1878 Donohue being greatly in arrear upon both mortgages, the association foreclosed the second mortgage, and the property was bought in by Burke, a nephew of Donohue’s, in his interest, for $1,500.</p> <p>Burke then procured a loan of $1,800 from the Francis Cooper Building Association, with which to pay for the property, and McCaffrey was employed by the latter association to examine the title and prepare a mortgage from Burke to them, which should be a first lien on the property.</p> <p>McCaffrey prepared the deed from the sheriff to Burke and the mortgage from Burke to the association, and passed the latter to them as a first incumbrance, though, in fact, the sheriff’s sale had been made subject to the mortgage of $3,000, held by the Richmond Building Association, that mortgage not having been discharged by the sale.</p> <p>Subsequently the Richmond Building Association directed Joseph M. Pile, Esq., as its counsel, to foreclose the first mortgage for $3,000, and proceedings were accordingly instituted thereon. McCaffrey then discovered his error in overlooking this mortgage, and considering himself liable to the Francis Cooper Building Association in consequence, called upon Mr. Pile and desired the Richmond Building and Loan Association to make some concessions to him and he would endeavor to make settlement.</p> <p>Donohue, the defendant, had some means, and at the request of McCaffrey, a judgment was entered upon the bond accompanying the $3,000 mortgage, and an attachment execution was issued against Donohue’s stock in the Richmond Building and Loan Association, said association being summoned as garnishee. A fi. fa. was also issued against Donohue’s goods, and a certain sum raised in this way, which was paid to the Richmond Building and Loan Association. Subsequently, McCaffrey, Burke and Donohue met, and the two latter agreed to contribute to reimburse McCaffrey for what he should lose.</p> <p>A statement was then prepared by Mr. Pile, as counsel for the Richmond Building and Loan Association, of the amount remaining due by Donohue upon the $3,000 mortgage. Deducting the amounts already paid thereon, the amount realized from the sale of Donohue’s goods and other credits, the balance due appeared to be $962. The association, in consideration of McCaffrey’s .error, charged no fines and took no premiums.</p> <p>McCaffrey paid the'amount in three sums, the last being paid August 11th 1881. lie then ashed for an assignment o'? the judgment on the bond against Donohue, and the same was accordingly assigned to him. In regard to this transaction, McCaffrey testified as follows:</p> <p>“ I asked for an assignment of the judgment, and the reason I gave was, that the assignment was to aid me in the collection of what I was to get from Burke, that is, to hold a rod over the property; Mr. Bryant, who acted for Mr. Pile in marking this' judgment to my use, asked me at the time of the marking, what I was going to do with the attachment execution; I replied I did not know yet.”</p> <p>McCaffrey filed interrogatories to the Richmond Building and Loan Association, as garnishees in the attachment against Donohue’s stock. An answer was filed, a plea pleaded, and the cause put at issue.</p> <p>Defendants requested the court to charge as follows:—</p> <p>“ If the jury find that in the settlement made between tne Richmond Pudding Association and McCaffrey, of August 1881, the amount paid on the stock was credited, then by that act, the stock was cancelled, and your verdict should be for the defendants.” Refused.</p> <p>The court charged as follows:</p> <p>“ The mortgage in this case was made by Peter Donohue to the Richmond Building Association; the property was after-wards sold under a second mortgage, subject to the first — the title was passed by McCaffrey'- — he certified that no mortgage was on the premises, and in consequence, he had to pay the mortgage.</p> <p>“ lie paid part money and was credited with the amounts which had been paid on tiie stock.</p> <p>This was paid in a settlement made between McCaffrey and the counsel for the association. McCaffrey was allowed the amount paid on the stock, paid the balance, and took an assignment of the mortgage and judgment, and standing in the shoes of Donohue, he claims the stock.</p> <p>[“ The attachment passed with the assignment of the judgment.] It was issued for the purpose of holding the stock.</p> <p>[“ Unless there was some action by the Building Association’ to cancel the stock, it is subject to all the rights of Donohue.]</p> <p>“ It may become important to know the value of the stock. Any borrower has the right to cancel his mortgage with it, and as this series of stock Bad appreciated to its par value of $200' in January 1880, you will deduct from that amount the sum, which was due upon it, to wit, $1,300 — and also the sum of $930, credited in the settlement, and award plaintiff, by virtue-’ of liis attachment, the difference between these two sums— $2,230, and the par value of the stock, viz., $770.”</p> <p>Verdict and judgment for the plaintiff. Defendants thereupon took this writ assigning for error the refusal of the court to affirm their point, the portions of the charge enclosed in brackets, and the instruction of the court to find for the plaintiff.</p>

<p>Appeal from tho Orphans’ Court of Philadelphia county: Of January Term 1882, No. 55.</p> <p>This was an appeal by Daniel Sheetz from a decree of the said court, overruling exceptions filed by him to the adjudication of the judge auditing tho account of William Overington and Edward J. Bobinson, executors of tho last will and testament of Bobert Whitaker, deceased.</p> <p>Tho facts of the case, as they appeared on the audit, before Ashman, J., were as follows:</p> <p>Bobert Whitaker died August 23d 187S. On the 12th day of September 1878, Wm. B. Dickerson presented to the register of wills for probato, a jjaper writing said to be the last will and testament of the said Bobert Whitaker, deceased, bearing date May 7th 1878. A caveat was filed by tho heirs against probating said will. Daniel Sheetz, being one of tho executors named in said will, called witnesses to prove the execution of said will, and after a large amount of testimony was taken by the register, he directed an issue to the. Court of Common Pleas, No. 1, to try the validity of said will.</p> <p>The issue came up for trial April 9th 1879, when a verdict was taken by agreement of Daniel Sheetz, who was plaintiff in said issue, and tho heirs, against said will, tho heirs paying to said Sheetz $15,000 to pay his expenses incurred, and liis counsel. After the verdict and judgment, Mary E. Service, a legatee in said will, on behalf of herself and tho orphan girls of the city of Philadelphia, and Wm. B. Dickerson in his own bohalf, presented to said Court of Common Pleas petitions praying said court to sot aside tho verdict, which the court did, and ordered a new trial.</p> <p>On the 4-th day of October 1879, Sheetz, by writing filed in court, declined to act, or stand as plaintiff in tho caso, and asked the court to substitute some other person or persons as plaintiff. The court refused to substitute any other person as plaintiff in said issue.</p> <p>Sheetz thereupon retained counsel and subpoenaed witnesses, and after a protracted trial, a verdict was rendered in favor of tho heirs, and against the pretended will, the same being found to be a forgery.</p> <p>Letters testamentary were thereupon granted to William Overington and Edward J. Robinson, the executors named in the true will and testament of Robert Whitaker aforesaid. On the audit of the account of said executors, Sheetz asked an allowance for counsel fees and witness fees expended by him in supporting the alleged will. The auditing judge, Asuman, J.; disallowed the claim. Sheetz filed exceptions to the adjudication, which were dismissed by the court in an opinion by Penrose, J., and a decree was entered accordingly. Sheetz thereupon took this appeal, assigning for error the decree of the court.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county : Of January Term 1881, No. 277.</p> <p>This was an appeal by William T. Davis from a decree of the said court in the matter of the estate of John Davis deceased.</p> <p>The facts of the case were as follows: — John Davis died August 11th 1879 leaving him surviving a widow Maria G. Davis, two sous John Davis Jr. and William T. Davis; two daughters, Elizabeth S. Murray and Maria Reese, and two grandchildren, issue of a deceased son Robert P. Davis, viz., Annie L. and Bella Davis. By his will bearing date March 11th 1878 said John Davis devised all his estate to his wife for life, and further provided as follows:</p> <p>“Item. — Immediately after the death of my beloved wife Maria Davis, I desire and will that the principal of all my estate be and remain securely invested, and that all of the interest or income of said estate be given to and equally divided between my children and my two grandchildren share and share alike, the two latter being children of my son Robert P. Davis, deceased.</p> <p>“ Item. — Upon the death of one or more of the above children and grandchildren ’tis my desire and will that those remaining shall receive the whole of the interest or income of my estate share and share alike.</p> <p>“ Upon the death of all of the above children and grandchildren then tis my will that the principal of my estate be divided amongst my lawful heirs.”</p> <p>Testator nominated as his executor his son John Davis, Jr.</p> <p>On October 8th 1879, testator’s widow died. The assets- of the estate amounted to $28,202.67, and consisted chiefly of city sixes and railroad bonds and stock. Upon the audit of the executor’s account the balance in his hands appeared to be $25,737, of which $25,000 still remained invested in the securities purchased by the testator in his lifetime.</p> <p>The accountant claimed a commission of five per cent, and also claimed to retain the fund to carry out the trust created by testator’s will. William T. Davis objected to the commission as excessive, and also contended that under the will testator’s children and grandchildren took an absolute interest in his estate.</p> <p>The auditing judge, Ashman, J., allowed the commission claimed and awarded tlie fund to the accountant upon the trusts contained in the will.</p> <p>Exceptions wore filed by William T. Davis to the adjudication, which were dismissed by the court, the adjudication being confirmed. William T. Davis thereupon took this appeal assigning for error the decree of the court.</p>

1, of Philadelphia county: Of January Term 1881, No. 91. Assumpsit, by Eleanor A. Richards, Trustee, under the will of William H. Richards, deceased, against E. A. Burns, to recover for the use and occupation of premises, No. 225 North Thirteenth Street, Philadelphia, for a period of four months.

Ebbob to the Court of Common Pleas No. 3, of Philadelphia county : Of January Term 1881, No. 211. Scire facias sur mortgage, by M. Carey Lea to use of Ann Clark, against Christian Brown. The Rhein Building Association was, upon petition, permitted to intervene as terre-tenant. The mortgage in suit, for $2,000, was dated March 29th 1877, and recorded April 4th 1877, on premises in the city of Philadelphia.

3, of Philadelfhia county: Of July Term 1881, No. 51.. Assumpsit, by Thomas Kennedy against John S. Dilworth to recover back the purchase money paid on account of a contract of sale of certain land. The defendant having died pending the suit, his executors Thompson Bell and William P. Dilworth were substituted as parties defendant. The facts of the case as they appeared on the trial before Yerkes, J., are fully set forth in the opinion of the Supreme Court.

3 of Philadelphia eounty: Of January Term 1882, No. 212. Mandamus, by the Commonwealth ex rol. Ilenry P. Tener against John A. Houseman and others, members of tlie Select and Common Councils of tlie city of Philadelphia, to compel them to approve relator’s official bond as collector of delinquent taxes for tlie city and county of Philadelphia.

3 of Philadelphia county: Of January Term 1882, No. 288. This was, in the court below, an appeal by the city of Philadelpliia from the report of a jury appointed by tlie court of quarter sessions, assessing to Edmund Wright, et al., trustees under the last will and testament of Samuel Wright, deceased, damages in the matter of the alleged change of grade of Second, Eliird, Fourth and Fifth streets in the said city.

Appeals from a decree of the Orphans’ Court of Philadel-. phia county: Of January Term 1882, No. 296. These were appeals by Adele IT.

1 of Philadelphia county: Of January Term 1882, No. lGl-^-. Case for deceit, by George W. Highley, against William J. Cox. The suit was begun by a capias ad respondendum.

1, of Philadelphia eoxmly: Of January Term 1882, No. 225. Covenant, by tlie Philadelphia Trust, Safe Deposit and Insurance Company, trustees under the will of Franklin Fell, deceased, against Rene Guillou, assignee for the benefit of creditors of C. J. Fell and brother.

. Error to the Court of Common Pleas No. 4, of Philadelphia county: Of January Term 1882, No. 86. Case, by George W. Sleeper against the Pennsylvania Railroad Co., to recover damages for an illegal ejecting of plaintiff from defendant’s train.

13. This was an appeal by Bindley Chandler, executor of William Chandler, deceased, from a decree of the said court, awarding distribution of the funds in the hands of Israel IT. Johnson and William P. Passmore, executors of Thomas P. Iloopes, deceased. The facts of the case were as follows: — Thomas P. Iloopes died in January 1873, and under the provisions of his will, one Thomas H. Chandler became entitled to a certain share in his residuary estate.

165. Debt, upon, a policy of fire insurance, by John A. Graver against the Franklin Fire Insurance Company.

150. On May 18th 1877 one A. J. Pringle entered a judgment against Marcus Smith in the sum of $450 upon a confession of judgment contained in a lease of certain premises executed by Pringle to Smith. Smith subsequently obtained a rule to show cause why the judgment should not be opened and he let into a defence, which rule was afterwards made absolute.

Eeeor to the Court of Common Pleas of Luzerne county: Of January Term 1880, No. 193. Case, by Anna Gaffigan against “ Charles M. Dodson, Abram S. Schropp, E. L. Bullock and-Stout, doing busi- ness under the firm name of The Beaver Brook Coal Company,” to recover damages for the death of the plaintiff’s husband John Gaffigan, caused as alleged by the negligence of the defendants.

68. Certiorari to the judgment of a justice of the peace, in an action of debt by John F. Robbins against Jeremiah Fetterman, a toll-keeper on the Susquehanna and Lehigh Turnpike road, to recover $5, the penalty imposed by the charter of the turnpike company for collecting toll on a certain portion of {he road declared by an inquisition, &c., to be out of repair. By Act of March 19th 1804 (4 Sm.

<p>Error to the Court of Common .Pleas-of Luzerne county: Of July Term 1881, No. 75.</p> <p>Assumpsit, by John McDermott against the Miners’ Savings Bank of Pittston, to recover $1,810.73, being the balance of an account standing in the name of his deceased wife.</p> <p>' On the trial, before Woodward, J., the facts appeared to be as follows : The plaintiff, John McDermott, an uneducated man but doing a large business as a butcher for some years prior to 1875, kept a deposit account with the bank defendant. His wife attended to the book-keeping and banking department of his business, signing checks, and making deposits in his name, by his authority. She also kept a savings account in said bank in her name, to which account she from time to time transferred monies from the deposit account in her husband’s name. The charter of said savings bank authorized deposits by married women and provided that the same should be repaid to them upon their check or receipt.</p> <p>The wife died April 29th 1875. Plaintiff immediately made search for his bank-book, and failing to find it, went to the bank and notified the cashier Mr. Bryden “ not to pay any money to any one that comes here with them books until I find them.” The cashier replied, “All right, John. Did you know that that money was deposited in your wife’s name ? Plaintiff exclaimed, “ My God, is that so ? What am I going to do ? ” Bryden answered, “You will have to administer to it. No one can draw the money but an administrator appointed by the court.” At plaintiff’s request, II. R. Hughes agreed to act as administrator of Mrs. McDermott’s estate, and letters of administration were granted to him in May 1875. In July following, the bank, upon demand of said administrator, paid to him the balance standing to the credit of Mrs. McDermott, deceased. The administrator filed his account in November 1877, which was confirmed, and John McDermott presented his claim in the Orphans’ Court. It did not appear that said claim has been adjudicated. McDermott brought this suit against the bank in April 1878.</p> <p>The coiirt instructed the jury, inter alia, as follows :—</p> <p>“ Taking as true, all of the evidence on the part of plaintiff, looking at it in the most favorable aspect for him which the court is able to, I am bound to say to you, as matter of law, that I do not think the plaintiff can recover against this bank for the amount of money in question. I believe the proper place to dispose of the question here raised is either in the Orphans’ Court itself, or in the Court of Common Pleas under an order and issue directed by the Orphans’ Court. It seems to me lliat the bank, under all of the circumstances of the case, could properly do no otherwise than they did do. Finding- an account upon their own books standing in the name of a woman who had herself brought the money to the bank, produced the book from time to time and liad the credits entered in it, the bank could do no less than pay over to her legal representative upon proper demand, the money so deposited. This savings bank, like many others, is authorized to receive the savings and money of minor children and of married women. In our opinion, under all of the circumstances, the savings bank would not have been justified, even if they had more distinct notice than is claimed here, and at a different point of time from that claimed, in withholding this money from the legal representative of the deceased wife.</p> <p>“We say to you secondly, as matter of law, that in our opinion the plaintiff is estopped in this case from recovering against this defendant; because by his own testimony it appears that he was instrumental in raising up this administration for the very purpose of having the money in question transferred to the custody of the administrator instead of the bank.</p> <p>“We hold, therefore, first, that the bank did right in paying the money over to the administrator. Second, that if the bank was wrong in thus paying it over, if there is a question as to the legality of the transaction, this plaintiff is estopped from setting it up here under the circumstances of this case; because he assented to it, and took means to bring about the result which was reached. While it seems quite probable, that in equity and justice this husband owned a share, if not ail, of that money, and while it may hereafter in a proper way, and before a proper tribunal, appear that such is the case, we still hold he is not in a position, for the -reasons already given, to recover in the present action against this bank.</p> <p>“ It- only remains to say to you, that under these views,' your verdict should be in favor of the defendant.”</p> <p>Verdict and judgment for the defendant. The plaintiff took this writ of error, assigning for error, inter alia, the portion of the charge above quoted.</p>

289. Appeal of Peter Ward, administrator of the estate of James Ward, deceased, from an order of said court, discharging a rule granted to show cause why said Peter Ward, administrator, should not be subrogated to the rights of The Anthracite Building and Loan Association, plaintiffs in a certain judgment against Daniel Sullivan and James Ward.

This was an appeal by Samuel Frauenthal from a decree of the said court perpetually enjoining the appellant from collecting a judgment held by him against A. B. Weil. Bill in equity, whprein A. B. Weil was complainant and Samuel Frauenthal defendant. The hill set forth, that the plaintiff Weil was indebted to the defendant, Frauenthal, on the first of March 1870, in the sum of about seven hundred dollars, for arrears of rent due from him as lessee of Frauenthal.

23. Feigned issue, wherein Aaron Whitaker, late sheriff of Luzerne county, was plaintiff, and the county of Luzerne defendant. 1 The facts were as follows ¡ — -Aaron Whitaker was elected sheriff of Luzerne county in October 1871, for the term of three years.

180. Case, by William II. Reese against W. G. Payne and William II. Meeker, partners as W. G. Payne & Co., to recover damages for personal injuries caused, as alleged, by tbe negligence of tbe defendants. Plea, not guilty. On the trial, before Woodward, J., the following facts appeared: — The plaintiff was a coal miner in the employ of the defendants.

100. Feigned issue, wherein W. P. Kirkendall, sheriff, to the use of W. D. Brown and E. F. Brown, doing business as W. D. & E. F. Brown, was plaintiff, and Nautilus Slutter, Charles Kessler and T. J. Campbell were defendants, to try the question of the liability of the defendants upon a certain bond given by defendants to said Kirkendall, sheriff, on which judgment had been entered and opened.

230. Bill in equity, by Jacob KLocher and Maria, his wife, in her right, complainants, and the city of Wilkes-Barre, defendant, averring that the defendant, by its employees, threatened to remove certain posts, evidences of the boundary of the plaintiffs’ lot in the city of Wilkes-Barre. The said posts had been recently erected by the plaintiffs. The defendant’s answer averred that said posts were within the lines of a public highway.

263. Indictment against Charles C. Ilaines, William F. Miskey, Jr., and Henry C. Clement, for conspiracy. The indictment came on for trial February 3d 1881, before Finletter, J., and a jury, and a verdict of guilty was rendered February 9th 1881.

351. Indictment of Kobert Smith Lister alias Kobert Lister Smith. The indictment contained' three counts (1) assault and battery, (2) aggravated assault and battery, (3) assault and bat- ' tery with intent to kill. Plea, not guilty. On the trial, before Briggs, J., the third count of the indictment wTas abandoned and a verdict of not guilty was taken thereon.

Error .to the court of Common Pleas of Luzerne county: Of January term 1882, No. 46. Ejectment, by Charles E. Morgan and E. S. Morgan, against P. D. Edwards and Elizabeth, his wife, Thomas Long and Benjamin Long, for the recovery of half an acre of land and improvements thereon, situate in Ross Township, Luzerne county. The writ issued January 13th 1877.

248. This was an action of assumpsit by William D. Brown and Cyrus Lawall, trading as Brown and Lawall, against the Lehigh Coal and Navigation Company, to recover a certain sum of money paid by plaintiffs to the said company as tolls on logs floated down the Lehigh River from points near Stoddartsville to the plaintiffs’ mill at White Haven.

236*. Covenant, by Samuel Fromm to use of O. G. and H. R. Loose, assignees, against the Pottsville Mutual Fire Insurance Company upon a policy of insurance for $600, dated September 6th 1872, for five years, upon a “ two-story log dwelling-house, chunked and smeared in cracks, plastered inside, 26 by 22 feet, situate in North Manheim township, Schuylkill County, Pa.” The insured duly paid the premiums as they fell due until the destruction of the building by fire on October…

113. Case stated, wherein the township of Rush was plaintiff and the County of Schuylkill defendant, setting forth the following facts: 1.

Assumpsit, by Andrew Comrey, to the use of James liyon, against the Township of East Union, to recover the amount of two orders or warrants issued by ¥m. II. Barlow and others, commissioners as hereinafter mentioned, to lay out and open a state road, drawn on the township of East Union, payment of which was refused by .the treasurer of said township.

66. Case stated, wherein the burgess and town council of the the borough of Norristown, for the use of said borough, and Wm. II. Davis, informer, were plaintiffs, and Joseph S. Kneedler was defendant, setting forth as follows : On April 30th 1881, before Alan W. Corson, Esq., a justice of the peace in and for the county of Montgomery, residing at Norristown, appeared Wm. II.

282. Ejectment, by William Galbraith against Joshua Zimmerman, to recover a tract of farm land in Montgomery county. Plea, the general issue. The defendant died before trial, and his heirs were substituted on the record.

334. Bill in equity, by Martin Conville et al. against P. W. Sheaffer, Richard Hecksclier et al., averring that the defendants, as lessees of mining rights to the coal underlying certain houses and lots owned by the complainants, claimed the right to remove all the said underlying coal, and that the mining of said coal by defendants had caused great damage to said lots by the falling in of a large portion of the surface, and unsettling said dwelling houses, thereby rendering…

<p>Error to the Court of Common Pleas of Schuylkill county: Of January Term 1882, No. 392.</p> <p>Debt, by Patrick Quinn, against The Fidelity Beneficial Society on a policy of insurance, issued by the defendants on the life of Francis Quinn, plaintiff’s father, in the sum of two thousand dollars.</p> <p>The plaintiff and his father were residents of Schuylkill county, and the defendant, a life insurance company, chartered by the laws of Pennsylvania, has its principal office at Elizabeth town, Lancaster county.</p> <p>Qn December 19th 1881, plaintiff issued a writ, in the Common Pleas of Schuylkill county, directed to the sheriff of Lancaster county, commanding him to summon the defendant to appear before the Common Pleas of Schuylkill county; relying on § 1 of the Act of April 24th 1857, P. L. 318, P. D. p. 802, pi. 53, which provides as follows :</p> <p>“ In addition to the remedies now provided by law it shall be lawful for any person or persons, body politic or corporate, who may have a cause of action against any insurance company incorporated by the Legislature of this Commonwealth, or against any insurance company that may have an agency established in this Commonwealth, to bring suit in any county where the property insured may be located, and to direct any process to the sheriff of either of the counties in this Commonwealth; and it shall be the duty of said sheriff to execute all process directed to him under the provisions of this Act, upon the president or other chief officers of the company against whom the same issued, as he shall be directed, or upon the agent of any company not incorporated by the Legislature of this Commonwealth; and the manner of service and return shall be in the same manner as like process is now by law required to be made, and the same shall be returned to the court issuing the same; and all proceedings upon any suit not under this act shall be the samé as in other eases.”</p> <p>The plaintiff also relied upon the supplement of April 8th 1868 (P. L. p. 70), which is as follows:</p> <p>“ Section 1. That all provisions of the Act of Assembly approved the 24th of April, 1857, entitled : ‘ an act relative to the insurance companies,’ shall apply to life and accident insurance companies.”</p> <p>Service of the writ was accepted for the defendant, de bene esse, who afterwards took a rule on plaintiff to show cause why the summons and all proceedings thereon should not be set aside for matter of record, which rule was made absolute, no opinion filed.</p> <p>The plaintiff thereupon took this writ of error, assigning for error the decree of the court in making absolute the above rule.</p>

<p>A testator, after providing for the payment of his debts and bequeathing a portion of his estate to his widow, directed the residue to be equally divided among, his children, of whom Robert was one, with this proviso — “ that there shall bo deducted from the share of each of my children to whom I may have made any advances, the amount of such advances.” He afterwards revoked the devise to his son Robert by the following clause, in a codicil, to wit:</p> <p>“I do hereby revoke the devise to my son, Robert M. Buehler, in my said will contained and set forth in the following words, so far as they affect my said son, to wit: ‘And the rest, residue and remainder of my whole estate, real and personal, I give, devise and bequeath to such of my children as may be living at the time of my decease. I do hereby give, devise and bequeath the shares of my sons -in my estate to them respectively, their heirs, executors, administrators and assigns forever.’ And I do hereby give, devise and bequeath the share of my said son unto my daughter-in-law, Mary, the wife of my said son, Robert M. Buehler, to her and her heirs, executors, administrators and assigns forever, to and for her sole and separate use for the purpose of the support of herself and also for the support of her children; the same not to be any way whatsoever liable to the contracts, debts or engagements of her said husband, and not to be liable or subject in any way or manner whatsoever to his contrdl or interference.”</p> <p>Reid, that the codicil merely substituted the wife as legatee in place of her husband, but made no change in the method of determining such distributive share, and that therefore, the wife took her husband’s share subject to advances made to him.</p>

Writs of error to tbe court of Common Pleas of Schuylkill county: Of January Term 1882, Nos. 216 and 217. Two actions of trespass vi et armis, de bonis asportatis, brought respectively by Dennis McGrath and Catharine McGrath, against Win. T. Richards, Constable, Malachi Watson, surety on his bond, and Michael Monahan, landlord — to recover damages for forcible entry on plaintiffs’ premises and carrying away their personal property. Plea, in each case, not guilty.

85. Scire facias sur mortgage, by the Oriental Savings and Loan Association against Samuel Cooper. Pleas, payment with leave, &c., expiration of plaintiff’s charter, dissolution of corporation, nul tiel corporation.

<p>Appeal from the Court of Common Pleas of Clinton county : Of January term 1882, No. 870.</p> <p>Appeal by Ario Pardee, from a decree of tbe said court dismissing liis exceptions to the report of an auditor appointed to distribute the proceeds of a sheriff's sale of the personal property of James Colbert, and making distribution of the same.</p> <p>Before tlie auditor, George A. Brown, Esq., the following facts appeared : During the winter of 1880-81, James Colbert was employed by Pardee & Cook, who were maufacturers of lumber, to cut logs on their land and run them into the Lock' Haven and Williamsport booms. The work was carried on until about April 1st 1881, when it ceased, and Colbert removed liis personal property, which lie bad used in tlie work, from tlie woods to liis farm about ten miles distance in the same county, and discharged his men. Colbert had meantime become indebted to Pardee & Cook, who entered judgment against him, and on April lltli 1881, Pardee as surviving member of the firm, issued execution on the judgment, under which the sheriff levied upon and sold the property above mentioned, together with other personal property of Colbert at his farm, thereby producing the fund for distribution.</p> <p>Robert Patrequinn and a number of other laborers, who had been employed by Colbert in liis work for Pardee & Cook, and who bad not been paid, presented written notices to the sheriff under sections 1 and 2 of the Act of April 9th 1872 (P. L. 47), and demanded to be first paid out of the proceeds of the sale.</p> <p>Patrequinn’s notice was in the following words, and the others were substantially similar : •</p> <p>Ario Pardee, surviving Partner, &e., v. James Colbert. In , Common Pleas of Clinton county. No. Ill, May Term, 1881.</p> <p>To II. S. Barker, Esq., Sheriff:</p> <p>You are hereby notified that I claim to be due me for labor and services from the above named defendant, the sum o£ eighty-eight and 14-100 dollars for said labor and service, being manual labor, at twenty-six dollars per month, and for driving logs at two and 50-100 dollars per day, and rendered within six months last past, at and about the log job at or near which the property you now have levied upon and advertised under the above stated writ was found and at and about which it was used for carrying on the lumber business ; which sum you will be required to pay me as a preferred claim out of the proceeds of the sale of defendant’s said property.</p> <p>April 27th 1881. K. Patrequinn.</p> <p>The auditor, after finding as a fact that the fund realized by the sheriff’s sale, exclusive of that derived from Colbert’s farm property, was sufficient to pay the laborers, allowed the claims of nineteen of them, and awarded the fund first to the payment of their demands.</p> <p>Pardee excepted to this distribution on the following grounds:</p> <p>(1.) The Auditor erred in ruling that the notices of claims for wages of labor were sufficient and that they set forth with proper particularity the different facts required by the Acts of Assembly.</p> <p>(2.) The Auditor erred in ruling that the business carried on by defendant was such a business or operation as is contemplated by the Act of Assembly.</p> <p>(3.) The Auditor erred in ruling that the removal of the property from the place where the work was done, a distance of ten miles, and the ceasing of work at said place, and the departure of the laborers without any arrangement to return, did not affect the rights of the claimants.</p> <p>The court below, Meyer, P. J., delivering the opinion, sustained the first exception, as to all but Patrequinn and three other laborers, and dismissed the second and third, making a decree accordingly.</p> <p>Pardee thereupon took this appeal, assigning for error the decree of the court in dismissing his exceptions as above quoted, and in awarding any of the fund to Patrequinn and the other laborers.</p>

389. Ejectment, by James Corcoran and B. L. Richards against Joseph R. Fredericks and the Lewisburg Building Association, for a tract of land in Clinton county. Plea, not guilty. On the trial, before Mayer, P. J., the plaintiffs claimed title as purchasers of the premises in dispute at a sheriff’s sale thereof, on May 7th 1880, as the property of the defendant Joseph R. Fredericks, under a judgment obtained against him October 18th 1876.

Appeal of the First National Bank of Northumberland from a decree of said court, dismissing its exceptions to and confirming the report of the auditor appointed to distribute the proceeds of a sheriff’s sale of real estate. The real estate of Amos E. ILapp & Co., was sold at sheriff’s sale on February 2d 1881, under executions against said firm. The fund was- paid into court, and -the matter was referred to William A. Sober, Esq., to report distribution.

<p>Certiorari to James Gilkyson, Esq., a justice of the peace of Bucks Co., Ba., to remove the record of certain proceedings instituted before him by Joseph S. Angeny against Leonard Bauer, to recover possession of certain premises purchased by the former at sheriff’s sale, which were in the occupancy of the latter. Of January Term 1882, No. 355.</p> <p>In obedience to this writ, the said justice returned the following transcript</p> <p>Before James Gilkyson, J. B. of Bucks county.</p> <p>Joseph S. Angeny, ) Leonard Bauer. ) v.</p> <p>January 27th 1882. The petition of Joseph S. Angeny, verified by his oath, was presented to me, James Gilkyson, a justice of the peace, setting forth that the petitioner had purchased at sheriff’s sale a certain messuage ana tract of land, known as the New Galena Hotel, situated, .... containing ten acres of land, sold as the property of Eva Maria Klumpp, and that the deed for the same to the petitioner had been duly acknowledged by the sheriff of Bucks county on October 26th 1881. That the said Leonard Bauer, being in possession of said premises and came into possession of the same under Eva Maria IGumpp at the time of this application, was duly notified of the sale of the same to the petitioner and requested to give up said estate three months previously to said application. Whereupon same day warrant was issued to the sheriff of Bucks county commanding him to summon a jury of six men to appear before said justice at the arbitration room in court house on the 31st day of January, at ten o’clock a. m. to inquire of tlio premises, and also to summon the said Leonard Bauer to appear before said justice and jnry'at the same time and place to show cause, if any he had, why delivery of said messuage and tract of ten acres of land should not be delivered to the petitioner.</p> <p>And now, January 31st 1882, the said jury having come before the said justice at the time and place in said warrant named, and the said Leonard Bauer having also appeared, and the said jury having been duly sworn and affirmed, the said justice and jury proceeded to inquire of the premises and found that the said Joseph S. Angeny has become the purchaser of the real estate in the petition mentioned : namely, a certain messuage and tract of land known as the New Galena Hotel, situated, .... containing ten acres of land, more or less, by purchase at sheriff’s sale as the property of Eva Maria Klumpp; and that a sheriff’s deed therefor to the said Joseph S. Angeny was duly acknowledged on the 22d of October last; that the said Leonard Bauer now in possession of said real estate came into possession under Eva Maria Klumpp, the defendant, as whose property such real estate was sold ; that he has had three months’ notice of said sale, and of the requisition of the said Joseph S. Angeny to surrender the possession to him previously to the said application, and that the said Leonard Bauer hath hitherto refused and neglected to comply with said notice and requisition. And the said jury do assess the damages against said Leonard Bauer for the unjust detention of the premises at the sum of $75.</p> <p>January 31st 1882. Leonard Bauer files the following :</p> <p>Bucks County, ss. Leonard Bauer, the above-named person in possession of the premises, the subject of the above proceedings, namely, All that certain messuage, &e., .... being the same premises which Henry Mueller and wife conveyed to Henriette Beuhler in fee, being duly sworn, says that he does not hold the same under Eva Maria Klumpp, the defendant in the execution under which the sale took place, but under Henriette Beuhler, by a lease from said Henriette Beuhler, dated April 11th 1881, for the term of three years.</p> <p>Leonard Bauer. .</p> <p>Sworn and subscribed, &e.</p>

138. Appeal of Joseph Bowersox and Samuel Bowersox from a decree of the said court, revoking the letters of administration granted by the register of wills, to the appellants, on the estate of John Bowersox deceased ; and directing the register to grant letters to Susannah Bowersox as widow of decedent.

432. Quo warranto, by the Common wealth of Pennsylvania, at the relation of Henry W. Palmer, Attorney-General, by request of the owners of certain timber lands situate in Clearfield county, directed to the Chincleclamonche Lumber and Boom Company, and George W. Hoover, president, D. L. Krebs, secretary of said company, to test the right of said company to construct booms and dams on the west branch of the Susquehanna river, and Clearfield creek at, or near the town of…

375. Trespass de bonis asportatis, by John Clark against Andrew Pentz, Jr., late sheriff of Clearfield county, to recover damages for the sale by him as sheriff of certain personalty as the property of Simon McFarlane, which property Clark claimed as purchaser at a previous sheriff’s sale.

27. Scire facias sur mortgage, by Samuel Schrack against Charles IT. Shriner, mortgagor, with notice to 'William Swenk and N. Y. B. Lincoln, as terre tenants. Pleas, payment, and a special plea of release and discharge of the lien of said mortgage, as to any of the mortgaged premises in possession of either of the terre tenants or their assigns.

<p>1. The Orphans’ Courts of this Commonwealth are not bound as a matter of right to award nn issue of devisavit vel non to test the validity of a will whenever a dispute as to facts is alleged by a contestant aud suggested on the record, and will only grant such an issue when evidence has been taken from which it appears that there is a conflict of testimony and a substantial dispute upon material points.</p> <p>2. A testator, eighty years of- age, but possessed of mental and physical vigor, left the bulk of his estate to one daughter, whose husband was bis confidential adviser, the scrivener of the will, and trustee and co-executor under it: Held, that, in the absence of any evidence showing undue influence, or that the testator had not full knowledge of his estate and its disposition, no presumption arose against the validity of the will. Held, further, that there were no facts which, if submitted to a jury, would justify a verdict against the validity of the will, and that, therefore, an issue of devisavit vel non to the Common Pleas to test such validity was properly refused. Held, further, that the evidence in this case discloses nothing to impeach the integrity or professional propriety of the attorney who drafted the will, but the reverse.</p>

<p>Appeal from the Orphans’ Court of Union county. Of July Term 1882, No. G.</p> <p>Appeal by Rachel Thompson and B. F. Thompson, executors of Benjamin Thompson, deceased, from a decree of the said court, sustaining certain exceptions to the report of an auditor in the matter of their account as executors, and surcharging them with one-half the net income of a certain farm.</p> <p>The facts of the case were as follows : Benjamin Thompson died September 28th 1872, having by his will directed, inter alia, as follows:</p> <p>“ First: It is my Will, and I do order, that all my just debts and funeral expenses be duly paid and Satisfied, as Soon as conveniently can be after my decease.</p> <p>“Item. It is my will and I direct that my farm in Buffalo Township Union County Shall be rented until my youngest child living, Shall become of age, by my hereafter named executor, and be kept in a good State of cultivation, and repair.</p> <p>“ Item. It is my will that my beloved wife Rachel Shall live and reside on my Said fam Occupy as much of the buildings on the Same, as may be convenient, and to make her comfortable and any of her daughters not of age to live with her, and She and child or children not of age Shall have one half of the income of Said farm, for there Suport.</p> <p>“ Item. It is my will aud I direct that my Said farm Shall not be Sold untill my youngest chilld would be twenty one years of age if living. Should She Sooner die and continue to be rente for the Suport of my Dear wife aforesaid. Should however my Said wife and youngest Daughter die before Said term, then if there any of my daughters unmarried, She or they Shall Occupy the premises. Same, as is provided, for the mother until Said term is Expired.”</p> <p>The testator appointed his wife Bachel and son Benjamin F. Thompson to be his executors. They filed an inventory and took possession of the farm, which they continued to rent on shares, in the same manner as the testator had done in his lifetime. The widow continued to occupy the mansion house on said farm, with her minor and unmarried children, and received and used the one-half the produce of the farm for the support of herself and family. It appeared that she also paid thereout some debts of her husband, and some expenses of the farm. The tenant on shares received the other half of the produce. The entire produce of the farm amounted annually to about $1,400.</p> <p>The said executors were discharged by the court in May 1877, and letters of administration c. t. a. were granted to George M. Boyer, by whom the said farm was sold, under an order of court, for the payment of debts. The account filed by Bachel and B. F. Thompson, executors, was exempted to by said Boyer and others, and the exceptions were referred to an auditor (Wm. Van Gezer, Esq.). Theonly exception material to the present case was that “ the accountants had not charged themselves with the produce raised on the farm from the date of testator’s death to the filing of the account.” In refusing to sustain this exception, the learned auditor reported as follows :</p> <p>“ It was strenuously contended on behalf of the exceptants that the testator, when he gave to his wife ‘ one-half of the income of said farm ’ meant by the term £ income ’ what is generally known as the landlord’s share, and that as but one-half of this was bequeathed to the widow, he therefore died intestate as to the other half, which would belong to his children and heirs and therefore the accountants should be charged with the same. There is no residuary clause in the will which might have absorbed this undisposed-of undivided half. The question therefore recurs, did he suppose that he was disposing of his entire estate, both present and future, or did he intend to die intestate as to the undivided half of the £ income.’ He orders the farm to be rented, and is disposing of the future income or proceeds. He orders the farm to be sold, and is exceedingly careful as to how the proceeds shall be distributed. He disposes of everything he had, and can we suppose for a moment that he intended to die intestate as to the one half of the income, which would have to be distributed, not under his will, but under the intestate laws of the commonwealth ? Did he not use the word £ income ’ in its more general and comprehensive sense, that the income of the farm comprehended its entire annual production, embracing both the tenant’s and the landlord’s share, one-half of which, or the landlord’s share, should go to his widow. We are inclined to think, and so rule, that he meant the latter, for when we take this will by the four corners and view it with a judicial eye, we cannot suppose for a moment that he intended to die intestate as to any portion of his estate. If he intended, as the exceptants contend, he certainly would have made some disposition of the other half. And what strengthens this view of the case, is derived from the fact that his wife appears to have been the special object of his bounty and upon whom he imposed the burden of maintaining and educating his youngest daughter as well as his other unmarried daughters.....Your auditor therefore feels constrained to overrule this exception. ”</p> <p>George M. Koyer, administrator c. t. a., and others excepted to the foregoing ruling of the auditor, and the court (Bucher, P. J.) sustained their exception, saying, in an opinion filed: “ The auditor reads the half to mean the whole, in which we cannot concur. It is a common understanding that the income of a farm to the owner is what it nets him above expenses. What ho pays out is not income, but the reverse ; it is outlay. When a farm is rented for the half, the other half is expense which the owner never receives. Had the testator intended that his widow should receive the whole, he would have said she shall receive the income; but he says she shall receive one-half of the income.</p> <p>“ Then he directs, 1 that his farm shall not be sold until his youngest child shall reach twenty-one years, and continue to be rented for the support of my dear wife aforesaid,’ showing that he contemplated a tenant. Then he further directs that ‘ the farm shall be rented by his executors and be kept in a good state of repair.’ Iiow was this to be-done if the widow was to get the whole income % If the construction of the auditor is correct, nothing was left to pay testator’s debts, nothing for taxes, fences, lime and necessary repairs. Under such a construction the longer the executors had the management of the farm the more it would deteriorate and decay. Surely when the testator said, that his wife should receive the one-half of the income and ordered his executor to keep the farm in repair, he meant the net half only. Then he did not die intestate as to the one-half of the income, because the power to rent implies the ¡rower to receive rent by the executor, and they receive such rent for the purpose of paying debts and keeping the farm in repair. Although it be true the widow took under the will as a purchaser, the devise to her being in lieu of dower, yet she was entitled to nothing until the debts were paid: Laughlin’s Estate, 1 Barr 338.</p> <p>“"We are of the opinion, that the widow under the will is entitled to the one-half of the income of the farm; that is to say, the one-half of the landlord’s share.”</p> <p>The court therefore entered a decree surcharging the accountants with the sum of $1241.37-J, being one half of the “ landlord’s share ” of the income of said farm from the testator’s death to the date of the account. From this decree the accountants took this appeal.</p>

7. Equitable ejectment, by H. M. Du Bree, administratrix of D. S. Du Bree deceased, against William Albert, George Albert and Henry Albert, t with notice to A. F. Boynton and others, trading as the “ W oodland Fire Brick Company Limited,” — to-enforce payment of purchase money for an undivided one fourth part of two lots, with certain improvements thereon.

28. Appeal of James Criswell et al. from the decree of said court upon exceptions to the report of the auditor appointed to distribute the funds in the hands of the assignee for the benefit of creditors of the Lewisburg Building Association. Before the auditor the following facts appeared: — The Lewisburg Building Association was incorporated by the .act of April 21st 1858, P. L. 487, and a supplement to the charter ■passed March 29th 1859, P. L. 291.

<p>Error to the Court of Common Pleas of Schuylldll county: Of January Term 1882, No. 292.</p> <p>Assumpsit, by the receivers of the Sunbury Eire Insurance Company, in the name of the company, against Thomas Humble, to recover an assessment levied by the receivers, under an order of court, upon the policy-holders in the mutual department of said company, for the payment of losses by fire, and officers’ salaries.</p> <p>On the trial, before Green, J., the following facts appeared : — The company, plaintiff, was originally incorporated, March 21st 18G8 as “ The Sunbury Cattle Insurance Company.” By the act of April 1st 1870 it was authorized to insure property of all kinds on the mutual plan; the act providing that a joint stock capital should be subscribed not to exceed $200,000, to be invested in real estate.</p> <p>In 1873, upon application to the Court of Common Pleas of Schuylkill county, the name of the company was changed to “ The Sunbury Eire Insurance Company,” and power given it to insure property on the cash plan, in addition to the mutual, on condition that the capital stock should be $200,000, of which fifty per cent, should be paid in before the certificate of change was granted by the court.</p> <p>In 1876, at the suggestion of the attorney-general, the Court of Common Pleas of Dauphin county dissolved the corporation on the ground’ of insolvency, and receivers were appointed, who, under an order of court, levied an assessment upon premium notes of the members, as aforesaid.</p> <p>The defendant introduced evidence of the following facts:— That Hiram Price, who was an agent of the company, acting within the scope of his authority, requested John C. Garner to act as local agent, informing him that the company had a paid-up capital of $200,000, was solvent and had never levied an assessment. Garner, believing these representations, consented to act as agent, and in pursuance of his duties as such, made similar statements in regard to the company to Humble at the time he took out his policy, adding that he (Garner) believed the company to be good and sound. After ascertaining that these representations were false, Garner collected the policies which he had procured, and sent them back to the company for cancellation. Whether Humble’s policy was returned with the others was one Cf the points in dispute.</p> <p>The defendant offered to prove that certain officers of the company in tlie presence of Price restated to Garner that the condition of the company was as represented by Price, which fact they endeavored to demonstrate by reference to books and papers. This for the purpose of showing, that these representations were made by Price with the assent and authority of the company. Objected to by plaintiffs. Objection overruled and evidence admitted. (First assignment of error.)</p> <p>Plaintiffs requested the court to charge, inter alia, as follows:</p> <p>■1. If the statements made by John 0. Garner to the defendant were believed by him, and he made them in good faith, it would not be a fraud on his part, and if it is true, as said Garner testified, that the defendant took the insurance and gave his premium-note on the belief expressed by Garner that the company was good, and if the defendant made his application and gave his premium-note on the faith of the opinion expressed by Garner, then the representations made by Garner as to the condition of the company, would be immaterial and the plaintiff would be entitled to recover.</p> <p>Answer. It is true as a general principle, that if the party relied upon mere opinion, and not upon the false representations made, he cannot set up the falsity of the opinion in order to avoid the contract, and to that extent we affirm, this point. But if the jury find that false statements as to matters material were made by the company to Garner, as to the condition of the company, with the design of making him believe that it was a good company, and so that, as agent of the company, he should, express that belief to others and thereby induce them to take policies in the company, this would be such a fraud upon the defendant as would avoid the policy, if this was the inducing, cause of the taking of the policy, and particularly, if the false-statements communicated to the agent, were by him communicated to the defendant. (Second assignment of error.)</p> <p>2. That the statement made by Garner that the eompany had a paid-up capital of $200,000 could not and did not mislead or defraud the defendant, because the Act of 1870, creating a capital stock for this eompany, provided it should be exclusively, invested in real estate, and that the stockholders should have-the first lien upon the same — and hence this real estate was not applicable to payment of fire losses.</p> <p>Answer. Refused. (Fourth assignment of error.)</p> <p>The court further charged the jury, inter alia, as follows:</p> <p>“ As a matter of law we say to yon that, if you find that false-statements as to material matters were made by the company to Mr. Garner, as to the condition of the company, with a design of making him believe that it was a good company, so that, as an-agent of the eompany, he would express that belief to others,, and thereby induce them to take policies in the company,.then. it would be such a fraud on the defendant as would vitiate the policy, if such statements made to the agent were by him communicated to the defendant, and they were the inducing cause of his taking the policy. If the agent himself was deceived by the company, or its authorized agent, so that he himself might, in turn, deceive others, and they appoint him agent so that he might add the weight of his character or opinion in the attempt to deceive others, if this was the design of the company in making this appointment and these representations, then we think that, where the agent, on the strength of those false statements made to him, represented to the insured and gave it as his opinion, based upon those false representations so made to him, that it was a sound company, the insured would have a right to take advantage of such false representation to avoid the policy, even though he were to swear that it was the opinion of the agent as to the character and solvency of the company that induced him to take his policy.” (Thirteenth assignment of error.)</p> <p>Yerdict and judgment for defendant, whereupon plaintiff took this writ, assigning for error the admission of testimony above noted, the answers to his points, and the portion of the charge above quoted.</p>

252. This was an action of debt brought May 25th 1876, by Thomas Wren and Jacob L. Bricker, assignees for the benefit of the creditors of The Citizen’s Safe Deposit Bank of Mahanoy City, against Charles Bensinger et al., on a bond executed by the defendants to the directors of the “ Citizens’ Safe Deposit Bank,” for the faithful performance by David Phillips of his duties as cashier.

145. This was, in the court below, an appeal by Josiah Koontz, administrator of Susan Koontz, deceased, from the judgment of a justice of the peace, in a suit brought by Mary Jane Howsare against the said Josiah Koontz, administrator, to recover for wages of manual labor, claimed to be due the plaintiff by the defendant’s intestate. The defendant took an appeal to the Court of Common Pleas and entered security for payment of costs.

157. Assumpsit, by John Weast, assignee for the benefit of creditors of J. W. Henry, against Peter Derrick.

<p>1. A. leased a lot to B. for the term of one year at a certain rent, the lease giving to B. the option, to purchase the lot at any time within the year for a fixed sum. B. entered upon the premises, erected valuable improvements thereon, and within the year notified A. that he elected to take the property, and tendered the whole amount of the purchase money. A. put oil the execution of the deed from time to time, and finally refused altogether to execute it. B. having filed a bill for specific performance against him, Held, that as soon as B. signified his intention to take the property, the lease was at an end, and there was a contract of sale mutually binding on both parties, and that B. was entitled to the' relief prayed for.</p> <p>2. Bodine v. Glading, 9 Harris 50, distinguished.</p>

430. Trespass, by John Warfflein against Thome, McFarlane & Co. and Michael Meylert. The action, as originally brought, and declared upon in the narr., was to recover damages at common law for entering and cutting timber. Plea, not guilty. Subsequently, the plaintiff, by leave of the court, filed an amended narr., claiming double and treble damages under the act of March 29th 1824, for cutting and removing timber. Exception. (First assignment of error).

156. Appeal of the Gibbs & Sterrett Manufacturing Company from the decree of said court sustaining the exceptions of certain labor claimants to the report of an auditor appointed to distribute the proceeds of a sheriffs sale of personal property. The facts as reported by the auditor, W. B. Chapman, Esq., were as follows: The Gibbs & Sterrett Manufacturing Company, in May Term, 1881, recovered two judgments against P. M. Lewis, aggregating $442.03.

<p>Appeal from the Orphans’ Court of Cumberland county : Of July Term, 1882, No. 9.</p> <p>Appeal of John C. Rupp, trustee of Henry Rife, a lunatic, from a decree of the Orphans’ Court of Cumberland county, distributing the proceeds of certain real estate sold under an order of said court by the administrator of Joseph Bomberger, deceased, for the payment of debts.</p> <p>Before the auditor, appointed to report distribution (Joseph G. Yale, Esq.), the contestants were John 0. Rupp, trustee of Rife, a judgment creditor of Joseph Bomberger, Samuel Crist, a judgment creditor, and Maria Bomberger, decedent’s widow. The latter claimed on the ground that when her husband acquired the legal title to the land, he paid $1,500 of the consideration ($2,000) with her money, belonging to her separate estate, whereby a trust in the property resulted to her to the extent of said $1,500.</p> <p>The facts which appeared before the auditor were as follows:</p> <p>Some months prior to April of 1878, Charles Sherman, by articles of agreement, sold this land to Joseph Bomberger for $2,000, and Esquire Leas, having been employed to write the deed, Bomberger and his wife and Sherman met at the Squire’s office on the 8th of April 1878, Bomberger having in his possession $1,500 of his wife’s money, whihh she, on the dajr before that, had received on account of her share of her mother’s estate. The deed had already been prepared by Esquire Jjeas, so as to convey the title to Bomberger, as called for by the agreement with Sherman ; but Mrs. Bomberger objected to this and wanted the conveyance to be made to her, giving as a reason that she was furnishing the greater part of the money to pay for the property. Bomberger, however, would not allow the change to be made, and, after some delay caused by this disagreement, the deed, as Esquire Leas had prepared it, was executed and delivered to Bomberger, who then paid the consideration money with bis wife’s $1,500, and $500 of other money, which he at that time got through Esquire Leas from Henry Rife. Previous to this day, Rife had promised Bomberger a loan of $1,000, on judgment security, and left the money with Leas to be handed over to Bomberger, which Leas did as soon as the deed was executed, taking for Rife therefor a judgment from Bomberger, and this became the first judgment lien on the land after the conveyance. Before paying Rife’s money' over to Bomberger, Leas knew that a part of the purchase money for the land was furnished by Mrs. Bomberger, and that she on that account asked to have the land conveyed to her, but, when her husband refused to allow this to be done, he (Leas) suggested that if she did not get the deed she ought to have a judgment for her money, or something to show that it was not a gift to her husband. Some days subsequent to the execution and delivery of the deed, Bomberger and his wife came back to the office of Esquire Leas, and Bomberger gave his wife a promissory note for $1,500, which Leas drew up for them.</p> <p>Bomberger subsequently borrowed $150 from Samuel Crist, for which he gave him a judgment note, entered up August 27th, 1878, of which transaction Mrs. Bomberger had notice.</p> <p>Joseph Bomberger died intestate October 24th 1879, and upon petition of his administrator, the court granted an order for the sale of his real estate for the payment of debts. The property in question was sold for $1,241.51 to one Firestone, who had no notice of the foregoing facts.</p> <p>The auditor reported, as matter of law, that there was a resulting trust in favor of the wife, Maria Bomberger, by which she acquired an equitable estate in the land; but that the Orphans’ Court sale of the property sold only the estate and interest of Joseph Bomberger, the wife’s interest not being subject to sale for the debts of the husband : Diehl’s Appeal, 9 Casey 406; Kline’s Appeal, 3 Wright 469. That the fund must, therefore, be distributed to the creditors of Joseph Bomberger according to .their respective rights. That even if the resulting trust in favor of Mrs. Bomberger could attach to the fund for distribution, there was such a commingling of the trust fund with the money of Joseph Bomberger as prevents its identification in the hands of the administrator: Thompson’s Appeal, 10 Harris 16. That Mrs. Bomberger is to be treated in no other manner than as a creditor: Zeigler’s Appeal, 3 Norris 342.</p> <p>That under the Acts of April 11th 1848, April 22d, 1850, and April 15th 1851, Mrs. Bomberger is to be regarded sui juris as to her separate estate, and competent to take a promissory note in lieu of her interest in the land. And she having some day's after the purchase of her property by her husband taken from him such a note, the use of the money by her husband must be regarded from that time as a loan to him. She has thus placed herself in the position of a common creditor, and the payment of her claim must be postponed until the judgment creditors of her husband are satisfied.</p> <p>The auditor therefore awarded payment of the Rife judgment in full, and awarded the balance of the fund to the Crist judgment. Excejations filed by Mrs. Bomberger to the auditor’s report were sustained by the court, in the following opinion, filed by Herman, P. J.</p> <p>“ That a trust in the land resulted in Mrs. Bomberger from this transaction, is very clear. The auditor has so decided, and I do not see how he could have done otherwise. The wife supplied three-fourths of the purchase money, and wanted the conveyance made to her on that account. This the husband refused to have done, but still used his wife’s money in paying the consideration. At' the very time her money was being used in-this way, she asserted her rights, and demanded to have her separate estate preserved and assured to her, and this she did not secretly, but openly and in the presence of the person whom Rife had intrusted with the duty of securing the loan he had promised the husband. What else was the wife to do ? Must she have quarreled and struggled with her husband, and resorted to physical force to prevent the misappropriation or destruction of her estate 2 The law does not require this. She having furnished the money and demanded that, on that account, the conveyance should be made to her, it was enough; and as he, in the face of this, took the title in his own name, paying three-fourths of the consideration at the time with her money, a trust resulted to her, in the land, to the extent of the purchase money applied out of her separate estate. If a husband purchases land with the separate estate of his wife in his hands and takes the title -in his own name, a trust results to the wife: Perry on Trusts, sec. 127; Kline’s Appeal, 3 Wright 463 ; Raybold v. Raybold, 8 Harris 308 ; Fillman v. Divers, 7 Casey 429; Peiffer v. Lytle, 8 P. F. Smith 386. He will hold the title in trust for his wife, and his giving to her subsequently a judgment for the money ■would not convert his situation of trustee into that of a mere debtor: Fillman v. Divers, supra. In view of what occurred at the Squire’s office, when Bomberger took the conveyance of the legal title in his own name, his giving the note afterwai’d to his wife did not convert her into a mere common creditor of her husband. Notwithstanding this, the trust in her own favor which arose at the inception of the title continued.</p> <p>“But did the Orphans’ Court sale discha2-ge the trust? There is no evidence at all that the purchaser had notice of the trust. It is a universal rule, that if a man purchase property of a trustee, with notice of the trust, lie shall be charged with the same trust, in respect to the property, as the trustee from whom he purchased. And the opposite proposition is also true, that a purchaser for a valuable consideration without actual or constructive notice of the trust, holds the property discharged of the interest of the cestmi que trust. I am speaking, of course, of the acquisition of the legal title. Nothing is clearer than that a purchaser for a valuable consideration, without notice of a prior equitable right, obtaining the legal estate at the time of his purchase, is entitled to priority in equity as well as at law, according to the well-known maxim, that where equities are equal the law shall prevail: Perry on Trusts, sections 217 and 218. As has been seen, there is no evidence to show that this purchaser had any notice of the trust. The presumption is. that he purchased without notice, and being therefore a purchaser of a legal title without notice of the trust, and for a valuable consideration, he took the land discharged of the trust, and now the cestue que trust must come in on the fund or lose all. In Kline’s Appeal, the Orphans’ Court sale did not discharge the land of the trust, if any resulted to Mrs. Kline, for the very reason that the purchaser had notice of the alleged trust — not only did he have notice of the trust, but asked to have the sale confirmed. There were also a mortgage .lien and a purchase-money judgment against the land. The closing sentence in the opinion delivered by Strong, Justice, is in these words: ‘ Moreover, the purchaser asks to have the sale confirmed, and the mortgagee and judgment creditor have rights superior even to the equity of the appellant, if she has any.’ The land being discharged of the trust by the administrators’ sale, Mrs. Bomberger may come in on the fund. Say the authorities, the cestui que trust, may proceed against the land or the fund derived from the sale of the legal title : 2 Story’s Equity, sec. 1262 ; Perry on Trusts, sec. 128; but as the land is now discharged of the trust her only resource is to the fund derived from the sale.</p> <p>“ But then, the trust resulting in favor of Mrs. Bomberger was in such part only of the land as was paid for with her money, and as three-fourths of the consideration wras paid with her money, and one-fourth by the husband'with money of his own, which he had borrowed from Bife, she can take no more than three-fourths of the substituted fund. The other fourth is subject to the judgment liens entered against the husband.</p> <p>“ It follows that the auditor erred in the distribution of the fund derived from the sale of the six-acre tract of land. Three-fourths of this fund should be awarded to Maria Bomberger, and the remaining one-fourth to the plaintiff in the Bife judgment.</p> <p>“ And now, March 30, 1882, the auditor’s report is recommitted to the same auditor, with instructions that he modify and correct the scheme of distribution in accordance with the foregoing opinion, and make report thereof.”</p> <p>The auditor, in his amended report, reported a decree in accordance with the foregoing opinion, which was confirmed by the court, whereupon John C. Rupp, trustee for Henry Rife, took this appeal, assigning for error the said decree.</p>

<p>Error to the Court of Common Pleas of Cumberlcmdcounty : Of July Term 1882, No. 58.</p> <p>Case stated, wherein Simon W. Oyster was plaintiff and Napoleon K. Oyster defendant, setting forth as follows:</p> <p>Simon Oyster, late of Harrisburg, Dauphin county, Pennsylvania, died, seised in fee of a large amount of real estate, leaving a widow, Margaretta Oyster, and a number of children. By his will, dated June 14th 1865, and duly proven April 6th 1867, he devised, inter alia, as follows, to wit:</p> <p>“I give and bequeath to my son, Simon Washington Oyster, my farm, situated in East Pennsboro’, county of Cumberland, State of Pennsylvania, Mansion farm, containing one hundred and twenty-five acres, with all improvements, and twenty acres woodland, east side Blue Mountain, running to its base in said township, &c., in woodland for farm, with three-story brick house on South street, in Harrisburg, No. 4 in my row, and ten shares of Harrisburg bridge stock, and twenty shares of Harrisburg bank stock, for his support and estate to be and remain bequeathed to his children during their natural life.”</p> <p>At the time of the death of Simon Oyster, Simon W. Oyster was a minor and without children. He has since married and has children living.</p> <p>On March 15th 1882, Simon W. Oyster made a contract to convey the farm in East Pennsboro’ township, mentioned in the foregoing devise, “ by deed in fee simple and clear of all incumbrances,” to Napoleon K. Oyster, the defendant — the deed therefor to be “ delivered on April 1st 1882, or as soon thereafter as possible.” In consideration of this, N. JK. Oyster bound himself to pay to Simon W. Oyster ten thousand dollars, as follows: five hundred dollars on the agreement, the balance of one half on delivery of deed and possession, and the remainder in two equal annual payments on April 1st 1883 and 1884, with interest on each payment from April 1st 1882, payable annually, and to be secured by judgments. On April 3d 1882, Simon W. Oyster formally tendered a deed in fee simple for said farm to the defendant. The parties to the deed were Simon W. Oyster, the plaintiff, with Bella M., his wife and Margaretta Oyster, widow of Simon Oyster, deceased, who had declared to take under her husband’s will and joined in the deed in order to convey the property clear of her dower. The defendant declined to accept the deed thus tendered, and refused to pay the sum of forty-five hundred dollars then payable under the agreement, and to give the judgments provided for, alleging that under the will of Simon Oyster, deceased, the fee simple in land did not pass to Simon W. Oyster, the plantiff. The agreement and the deed are made parts of this case. Should the Court be of the opinion that Simon W. Oyster took an estate in fee simple in the farm in East Pennsboro’ township under the will of Simon Oyster, deceased, then judgment is to be entered for the sum of forty-five hundred dollars, with interest from April 1st 1882,in favor of the plaintiff against the defendant; but if the Court should be of a contrary opinion, the judgment is not' be entered in favor the defendant against the plaintiff for the sum of five hundred dollars, the amount paid by the defendant on the agreement, with interest from March 15th 1882. The costs sliall follow the judgment and either party shall have the right to take out a writ of error to the Supreme Court without oath or bail.</p> <p>The court entered judgment for the plaintiff on the case stated; whereupon the defendant took this writ of error, assigning for error the entry of said judgment.</p>

22. Ejectment, by.Levi P. Eberly against J. C. Lehman and Daniel Day, to recover a lot of ground in Boiling Springs, Cumberland county, with notice of claims for mesne profits. On the trial, before Herman, P. J., the following facts appeared: — In the winter of 1873, D. W. L. Nerons agreed by parol with Henry Mower to purchase from him a certain lot of ground.

374. Scire facias, sur mechanic’s lien, filed February 22d 1881, by John N. Whitcomb against II. Wilson and McÁboy, owners, or reputed owners, and J. 0. Jamison and J. Knapp, contractors. The writ was returned served as to W ilson, the other defendants not found.

55. Feigned issue, directed by the court upon the opening of three several confessed judgments, to determine the questions: “1. How much money was usuriously paid on the loans secured by said judgments? “ 2. How much of the said judgments has been paid by actual payments ? “ S. Whether the said judgments are valid or void in law.” The said judgments were as follows: 1. J. M. Albertson, assignee of Lydia McPherson, et al. v. Charles Earnest and Isabella, his wife.

<p>1. A contract whereby an attorney-at-law undertakes, for a contingent fee, to procure a settlement of a criminal charge for fornication, is against the policy of the law, and cannot be enforced.</p> <p>2. Semble: The same rule applies to all contracts which have for their subject-matter any interference with tlie creation of laws, or their due enforcement.</p> <p>3. Whether fornication is within the class of misdemeanors a prosecution for which may be settled by the parties, under the provisions of section 9 of The Criminal Procedure Act of 1860 — not decided.</p>

18. Assumpsit, by William Shaeffer against James Clendenin, both indorsers of a certain promissory note, to recover one-half the proceeds of a judgment assigned to the defendant by the maker of said note and his wife, in right of the wife. On the trial, before Herman, P. J., the following facts appeared : Shaeffer and Clendenin were accommodation indorsers of a promissory note for $1,010.78, drawn bjr Ephraim Cornman, and discounted at the Farmers’ Bank, March 21st 1876.

Appear from the Orphans’ Court of Cumberland county: Of July Term 18S2, No. 70. Appeal by George II. Miller, administrator of Adam Miller, deceased, from a decree of said court dismissing his exceptions to the report of an auditor appointed to make distribution of the estate of the decedent, and confirming the report.

<p>1. Where, upon the trial of an indictment for murder, the fact of the killing by the prisoner is admitted, and insanity is set up as a defence, the burden rests on the prisoner to satisfy the jury that insanity actually existed at the time of the act, and a doubt as to such insanity will not justify the jury in acquitting on that ground. The law presumes sanity when an act is done, and that presumption can only be overthrown by fairly preponderating evidence.</p> <p>3. Where, in such case, the court instructed the jury as above set forth, except that the court used the expression “ clearly preponderating evidence ” instead of “fairly preponderating evidence,” — Held, to be error, requiring a reversal.</p> <p>3. Where, in a murder case, the defence of homicidal mania is set up, it is not improper for the court to instruct the jury (in the language of Q-ibson, C. J., in Commonwealth v. Mosler, 4 Barr, 264), thus: “There may be an unseen ligament pressing on the mind drawing it to consequences which it sees but cannot avoid, and placing it under a coercion, which, while its results are clearly perceived, is incapable of resistance. The doctrine which acknowledges this mania is dangerous in its relations, and can be recognized only in the clearest cases. It ought to be shown to liave been habitual, or, at least, to have evinced itself in more than a single instance.”</p> <p>4. An attempt to commit suicide is not, of itself, evidence of the fact of the insanity of the prisoner, and raises no legal presumption thereof, but may be considered by the jury with all the other facts and circumstances bearing on the question of insanity.</p> <p>5. It is not error for the court, in a murder case, to charge the jury that they are not to be frightened from their duty to render a fair and impartial verdict, by any fear of what the punishment may bo in case of conviction.</p>

<p>Error to the Court of Common Pleas of Lancaster county: Of January Term 1882, Eo. 136.</p> <p>Replevin, by Laura C. Bowman and Joseph Bowman for the use of the said Laura C. Bowman against James Hildebrand for a certain mare. The defendant pLeaded property.</p> <p>On the trial, before Livingston, P. J., the following facts appeared : — In April 1878 Joseph Bowman made an assignment for the benefit of his creditors, the deed containing an express reservation of $300 worth of property exempt by law. When the $300 worth of goods and chattels wras being set apart by the appraisers, his wife, Mrs. Laura C. Bowman, allowed a certain black mare, which she owned in her own right, to be included in said exempt property at an appraisement of $90. The evidence showed that soon after the inventory was completed Joseph Bowman gave to his wife the whole of the $300 worth of property so set apart for him by the appraisers, including the said mare.</p> <p>In 1879 John Hildebrand brought an action of trover and conversion before a justice of the peace against Joseph Bowman, wherein he recovered judgment for $99.50, and issued execution, under which the constable levied upon certain personal property in Bowman’s possession, including the said mare. Bowman testified that he informed the constable at the time that the mare belonged to his wife, and subsequently notified him in writing to that effect. At the constable’s sale under the levy, Mrs. Bowman also caused a notice to be read, claiming the mare as her property. At this sale the mare was bought by James Hildebrand; whereupon the plaintiffs instituted this action of replevin.</p> <p>The court charged the jury, inter alia, as follows:</p> <p>“He (Bowman) had assigned all his property except the $300 allowed by law, in April 1878. This $300 was his, and his then creditors, who had no waiver from him, could not, as we have seen, touch it or levy on it. He, so far as they were concerned, was safe. He could sell it, give it away, or dispose of it as he chose, and could, so far as they were concerned, give it back to his wife, and it could not be taken for his prior indebtedness. . . . The judgment on which this mare was sold or on which the execution was issued was obtained more than a year after the alleged gift to Mrs. Bowman. John Hildebrand says his cause of action did accrue prior to the assignment. lie is a competent witness; his credibility is for you — the whole testimony is for yon. . . . Hid Mrs. Bowman own this mare in her own right, as her separate property, at the time she was levied on by the constable % If you are satisfied from all the evidence she did, then she is entitled to your verdict for the value of the mare and damages for her detention.”</p> <p>Yerdict for the plaintiff for $66.90, whereupon the defendant took this writ of error, assigning for error, the portions of the charge above quoted.</p>

299. Ejectment, by Jacob B. Miller against Barbara Bealer, wife of John Bealer, and John Bealer, her husband.

88. Case, by David Z. Lantz against George D. Mcllvaine and E. P. M. Mcllvaine, to recover damages for loss of service and for medical fees, nursing, etc., of his wife Nancy D. Lantz, who was injured through the alleged negligence of the defendants. Plea, not guilty.

<p>1. The existence of an oral ante-nuptial agreement should not be found save upon clear and convincing proof. The burden of proof is on those who aver its existence, and they must do more than show a slight preponderance of testimony; they must adduce that which will be satisfactory when considered with the counter-testimony.</p> <p>2. In a contest between the widow and children of a decedent as to the existence of an ante-nuptial contract between the widow and the decedent, providing that the survivor should claim no portion of the other’s estate, the parties to the controversy are not competent ■witnesses under the proviso to the Act of April 15th 1800, Pamph. L. 30. The decedent is to be considered as the assignor of the thing or chose in action.</p> <p>3. In such case, declarations made by the decedent in his lifetime, to the effect that there had been no such contract, are admissible in evidence on behalf of the widow.</p> <p>4. Prior to the appraisement of a decedent’s estate, his widow gave written notice to the administrators of her claim for §300 in money out of the estate, under the Act of April 14th 1851, Pamph. L. 613. There being no money in the hands of the administrators, she refused to take $300 worth of personal property, or to demand an appraisement of realty or personalty. After the estate had been administered, the personalty sold and the cash balance put into the hands of an auditor for distribution, the widow again presented her claim for $300 in cash from this balance, — • Held, that in the absence of money or notes in' the administrators’ hands, she should have claimed specific articles and demanded an appraisement of them, and that she was not entitled, under the Act, to her exemption from the proceeds of the sale of personalty, sold in the ordinary course of administration.</p> <p>5. The Act contemplates a retention by the widow or children of property belonging to the decedent at his death, and an appraisement of it by the appraisers of his personalty.</p>

Apjpeal from the Court of Common Pleas of Schuylkill county : Of July term 1882, No. 15. Appeal of F. II. Held: however, that in the absence of any special appropriation by either party at the time the payments or credits were made, the entering of the credits by the Coal and Iron company to the general credit of the account for rents and advances was, in effect, an appropriation of such credits to the discharge of the debits in the order they…

121. This was an appeal by James W. Bright from a decree of the said court, confirming the report of an auditor appointed to distribute, among the legatees, a balance in the hands of the executor of the estate of John Ilarleman, deceased. The facts of the case were as follows ; — John Harlem an the testator died in 1860, possessed of a certain homestead farm on which he resided, and divers other pieces of real estate, beside considerable personal property.

45. Ejectment, by Robert 0. Bradish against Virginia II. McClellan, for a tract of land in Cumberland county, containing six acres. Plea, not guilty.

<p>1. A decree of the court confirming an auditor’s report distributing the estate of one who has made an assignment for the benefit of creditors, can not be questioned or overturned in a collateral proceeding.</p> <p>2. A., being indebted to B. on a bond, made an assignment for the benefit of his creditors. B. died, and letters of administration were issued upon his estate. A.’s assignee, having filed Ms account, the same was referred to an auditor to distribute the balance in the said assignee’s hands. Before said auditor the next of kin of B. objected to the payment of the amount of A.’s bond to B.’s administrator, on the ground that he was not financially responsible; it was thereupon agreed between the counsel for the assignee and for the administrator, that the amount of said bond should be paid directly to B.’s next of kin. The auditor so reported, and the report was confirmed by the court. Subsequently, the assignee failed to pay over to B.’s next of kin the sum awarded to them and became insolvent, whereupon they brought suit against his sureties on Ms official bond. The court below charged that, as the fund in question had been diverted from B.’s administrator to whom it was properly payable, the sureties were discharged as to it. Held, that this was error, that the decree of distribution in the common pleas could not be thus collaterally attacked, and that the plaintiffs were entitled to judgment.</p>

<p>Error to the Court of Common Pleas of Lcmcaster coimty: Of January Term 1882, No. 122.</p> <p>The facts of this case were as follows: — Wiley Brothers having obtained two judgments against Jacob Menge, on judgment notes with waiver of exemption, issued tí. fas. thereon to November Term 1877 and levied on certain personal property, which was thereupon claimed by Kunegunda Menge, defendant’s wife. The court awarded an issue under the Sheriff’s Inter-pleader Act, and approved the claimant’s bond. The fi. fas. were returned “Writ stayed by interpleader.” The claimant did not file a nan-, within twenty days from the granting of the issue, as required by Pide of Court M, § 1, which provides: “The declaration in said issue shall be filed'by the claimant within twenty days . . . and a failure to file a declaration as aforesaid shall be deemed an abandonment of the claim.” Subsequently on December 13th 1880, Wiley Brothers issued alias fi. fas. on their judgments and a new levy was made upon the same personal property or a part thereof, and also on other property. The defendant’s wife again made claim to the property, and on December 2Sth 1880, obtained a rule to show cause why an issue should not be granted. Pending this rule, on January 8th 1881, Wiley Bros issued writs of vend, exps., and on January 15th 1881 obtained a rule to show cause why the said writs of alias fi. fa. should not be set aside, on the ground that they had been improvidently and improperly issued. The defendant thereupon took a rule to set aside the writs of vend, exp., on the ground that the plaintiffs, by issuing the alias fi. fas. abandoned the levy under the original fi. fas., which could not be restored by setting aside the alias fi. fas.</p> <p>These three rules, viz (1) Claimant’s rule for a second issue; (2) Plaintiff’s rule to set aside the alias fi. fas.; and (3) Defendant’s rule to set aside vend, exps., were argued together. The court discharged rule (1) and (3) and made absolute rule (2); Pattkeson, J., filing the following opinion (after reciting the facts):</p> <p>“ Of course the rule for an issue at this time, and according to the history of the proceedings recited, must be denied. And, as we have recited, the return of the sheriff, (which should not have been made, of the several fi. fas. and levy, upon which the said issue to November Term 1877, No. 110, was granted) to wit: ‘ Writs stayed by interpleader,’ the rule to set aside the alias fi. fas. to January 3d 1881, Nos. 23 and 24, and asked for by the party issuing them, will therefore prevail, and be allowed, as it would seem there was nothing to justify, in this proceeding, the issuing of said alias fi. fas.</p> <p>“ The execution creditor may follow the property of the debtor by his vend. exps.: Bain et al. v. Lyle, 18 Smith 60; Pontius v. Nesbit et. al., 4 Wr. 309.</p> <p>“ As the record now stands, we do not feel that it is necessary to say anything more; for, governed by the law and by the rules of practice, we must discharge the rule asking to set aside the several vend. exps. to January Term 1881, Nos. 44 and 45, and also the rule asking for an issue.</p> <p>“ The rules asking to set aside the several alias to January Term 1881, Nos. 23 and 24, are made absolute.”</p> <p>The defendant thereupon took this writ of error, and filed the following assignments of error:</p> <p>1. The court below erred in not setting aside the vend, exps. as the same could not issue while the alias fi. fa. was in force and in the sheriff’s hands, and levy made on defendant’s personal property, there having been previously issued a fi. fa. on the same judgment and levy made by a former sheriff on defendant’s personal property, which he returned, writ stayed by interpleader, and issue granted and bond filed, which issue remained undetermined when the alias fi. fa. and vend. exps. were issued.</p> <p>2. As long as the issue remained in force and undetermined, granted on the original fi. fa., all subsequent proceedings are erroneous and irregular.</p>

Case stated, wherein John A. Crafton and Walter B. Ruby were plaintiffs and the County of York was defendant, setting forth as follows: “John A. Crafton and Walter B. Ruby, the plaintiffs above named, brought suit against the County of York, the defendant above named, to recover $15.91 fees for services rendered as constables in a certain case heard and determined in the Court of Quarter Sessions of the Peace of York county, of which the following is a copy of the record,…

139. Assumpsit, by Isaac Mishler, coroner, against the county of Lancaster, to recover his foes as coroner and costs incurred on an inquest held by him in his official capacity upon the body of one John Philip Hahn. Plea, non assumpsit. On the trial, before Patterson, J., plaintiff offered in evidence his inquisition upon the body of the said Hahn, signed by the coroner’s physician, and sealed by the coroner and his jury of six.

<p>Appeal from the Orphans’ Court of Lancaster county: Of July Term 1882, No. 20.</p> <p>Appeal of Catharine Schwilke from a decree of said court awarding an issue devisavit vel non, to test the validity of the alleged last will and testament of William Millar, deceased; and revoking the letters testamentary granted on said will.</p> <p>The following were the material facts: William Millar died December 11th 1881 leaving as his nearest of kin, Mary E. Smethurst-, a niece. On December 6th 1881 he made the alleged will, which was duly proved, and letters testamentary granted thereon by the register to Catharine Schwilke, the executrix named therein. Subsequently Mary E. Smethurst, by her guardian, Wm. A. Smethurst, petitioned the Orphans’ Court to grant an issue devisavit vel non, and to revoke the letters testamentary, on the ground that at the time of making the alleged will, Millar was not of sufficient mind, memory and understanding, but that by the use of undue influence he was imposed upon and induced to make the will prejudicial to the petitioner’s interests.</p> <p>Catharine Schwilke filed an answer denying all matters set forth in the petition, and requested the court to appoint a master to take testimony, in order to ascertain whether the petitioner could produce sufficient pi’oof to warrant granting the prayer of her petition.</p> <p>The court refused to comply with this request and entered a decree directing an issue devisavit vel non to the Court of Common Pleas; also revoking the letters testamentary and ordering letters pendente lite to be granted to the executrix upon her giving adequate security. Patterson, J., delivered the opinion of the court, inter alia, as follows : — “ By the 22d section of article V., of the new Constitution, separate Register’s Courts were abolished, and their jurisdiction and powers are now vested in the Orphans’ Courts. The powers and duty of the latter court are clearly ascertained, we think, from the Act of 15th March 1832, entitled : ‘An act relating . to Registers and Register’s Courts.’ The list section of that Act, (Pur. Dig., p. 1256), reads: ‘ Whenever a dispute upon a matter of fact arises before any Register’s Court, the said court shall at the request of either party direct precept for an issue, etc.’ The language there — ‘shall,’ seems mandatory, and no other meaning can be fairly insisted on; it being always understood that the disputed fact on which an issue is claimed must be a material fact in the controversy, and be so regarded by the court. . . . It is conceded that this court, like the Register, and formerly the Register’s Court, is not bound under the act referred to, to award an issue when demanded, in every case, as to the validity and right execution of a will: 11 Smith 13, Graham’s Appeal; Idem 196, Cozzen’s Will.' But if the facts in dispute are clearly material, the court is bound to award an issue when requested by either party. The appeal filed in this court, distinctly states, in conformity with the 25th section of the Act of 1832, that the minor in whose interest the appeal is taken, “is a niece and next of kin” of the deceased, and is therefore a “ person interested,” as that section says, and hence entitled to claim a hearing in this court, and that alleged fact is not disputed or denied by the appellee. Where then is the necessity for this court to pause and take testimony? The , single matter of a dispute upon a matter of fact arises before . the court, and nothing more; and we hive signified what tribunal in our opinion should determine that issue.”</p> <p>Thereupon Catharine Schwilke took this appeal, assigning for error, inter alia, the decree of the court.</p>