Volume 101 — Pennsylvania State Reports

<p>-1. A., a servant of a railway company, while engaged in his ordinary occupation of coupling cars, was caught by the head between the ends of certain bridge irons projecting from the cars and was so crushed to death. It was customary upon said railroad and upon other roads to load bridge irons in the above manner, and A. had full knowledge of this fact, and also that the cars were so loaded upon the particular occasion. The regulations of the company required its servants in coupling to stoop below the b.ody of the car. A. had been for some time in the service of the company and knew of this regulation. He had, in addition, been specially warned on the day in question to observe it. Had he done so, ne'would, like other servants engaged in coupling other cars on the same train; have done so with safety. In an action by A.’s widow and minor children against the railroad company to recover damages for his death, the court instructed the jury that, if they believed that the deceased was subjected to such extraordinary risk as the company could have avoided, the company was liable. But if the risk was an ordinary one and the deceased failed to take ordinary care," the company was not liable. Held, that this was error; that there was no evidence that the risk run by deceased was extraordinary in its nature, and that therefore it was error to submit that question to the jury.</p> <p>2. Semble, -further, that the deceased was guilty of such lack of ordinary care in the above case as to preclude recovery.</p> <p>8. A venire facias de novo was subsequently awarded in the above case, notwithstanding the expression of opinion on the part of the court contained in the preceding clause of this syllabus.</p>

108. Assumpsit, by Oiement B. Grubb against Alfred Bates Grubb, to recover the value of one half of 13,637 1-2 tons of iron ore, taken by the defendant from the… Held: however, that the deed granted to A. B. Grubb but a one half supply, and directed the Prothonotary to enter judgment for the plaintiff in-the sum of $17,345, with costs, being the amount claimed. Whereupon A. B. Grubb took this writ assigning for error the finding of the court and entry of judgment as above.

101. Covenant, by Adolphus Ake, against C. C. Mason, to recover damages for an alleged breach of a covenant contained in a deed from defendant to plaintiff.

131. This was an appeal by B. E. Chilcoat from a decree of said court confirming the report of the auditor appointed to distribute the balance in the hands of said B. E. Chilcoat as assignee of James S. Chilcoat. On January 31st 1876, James S. Chilcoat executed an assignment for the benefit of creditors to B. F. Chilcoat.

406. Trespass vi et armis quare clausum fregit, by Martin Kopf, against John C. Utter, and others.

291. Debt,'by John EL Isett against Israel C. Caldwell, upon the following promissory note: “$11,000. E’ebruary 1st 1869. “On demand, we, or either of us, promise to pay John El. Isett, or order, the sum of $11,000, with interest at the rate of 6 per cent, per annum. Said interest to be paid in gold or its equivalent. “ I. C. Caldwell, “D. Caldwell.” On the note were endorsed certain payments of interest.

162. Trespass quare clausum fregit, by James Kirkpatrick against C. Dunham and Alfred Shortt, for entering and boring for petroleum oil, and for cutting timber upon the plaintiff’s premises. Plea, not guilty.

Arpeal from the Court of Common Pleas of Huntingdon county: Of July Term 1882, No. 59. Appeal of Nora C. Shaeffer and Thornton Barnes from a decree of said court, confirming the report of an auditor appointed to make distribution of the proceeds derived from the sale of certain real estate, sold in pursuance of an order of court, by E. P. McKitrick, assignee of John Lukens under a deed of voluntary assignment for the benefit of creditors. Before the auditor,.

376. Trespass qiocere clausum fregit by Cassius Nelson, against J. J. Marsh, to recover damages for entering on a certain 30 acre tract of land, claimed by the plaintiff under a lease from the former owner, and cutting and carrying away the grass 'therefrom.

72. Assumpsit, by W. B. Leas and others, doing business in the name of The Union Bank of Huntingdon, against William D. Walls, upon a promissory note, of which a fac-simile is given on the opposite page. The note was indorsed — W. D. Walls.

98. This was an action of ejectment brought by R. A. Laird, administrator c. t. a. of Enoch Isenberg, deceased, against Sarah J. Allen and one Andrew Morder, her tenant, to recover possession of a tract of land in Potter township, containing about 120 acres. The cause was argued in this court May 23d 1881, and a re-argument being ordered by the court, the same was had May 25th 1882.

44. Ejectment, by Samuel W. Miller against William Umbenhower, for a tract of land in Penn Township, Berks County. Both parties claimed under one Albert Hine; the plaintiff by deed from Hine and wife ; and the defendant, who was in possession, as purchaser of the premises at a'sheriff’s sale thereof, as the property of said Hine.

349. This was an appeal by Mary Ann Finlc from a decree of said court-dismissing her exceptions to, and confirming the adjudication in the matter of the account of John Weiss and Jeremiah Hess, trustees appointed to make sale, in partition, of the real estate of Daniel Walp, deceased. The said trustees filed their account June 18th 1878, in pursuance of a citation and attachment issued at the instance of said Mary Arm Fink.

15. Ejectment, brought August 10th 1867, by the Pennsylvania Canal Company against George W. Harris, et al., for a piece of land described in the writ as follows“ A strip of land situate in the Fourth and Fifth wards of the city of Harrisburg, adjoining Herr street on the north, the Pennsylvania canal on the east, lands of the Central Iron Works, Richard J. Haldeman, George W. Harris, and Catharine M. Antes, on the west, and State street on the south, extending along the…

66. This was a case stated in the nature of an action of ejectment, between Sarah F. L. Bigler, plaintiff, and J. Monroe Kreiter, defendant, as follows, viz.: In September 1826, the administrators of William Maclay sold to Henry Antes three tracts of land, bounded on two sides by the Millerstown turnpike and by.

Ejectment, by The Pennsylvania Canal Co. against Josiah A. Dunkel, for a small strip of land in the city of Harrisburg, twenty-eight feet three inches in length, and about eleven feet in breadth, on… Held: it probably ought to be considered as settled.; but that is a question for the jury. “There is another point which was raised, that I think is not in writing; and I may as well speak of fit now as any other time.

69. Debt, by Isaac Lupoid, against ...the National Mutual Aid Society, upon two certificates of membership in the said society insuring the life of one Sarah M. Snyder, which certificates were claimed to have been duly assigned to plaintiff.

73 and 77. This was, in the court below, an appeal by the Standard Oil Company, a corporation of the state of Ohio, from a settlement made against it by the auditor-general and .state treasurer of Pennsylvania upon the 29th day of April 1881, for tax upon its capital stock, with penalties and interest, for the years ending on the first Mondays of November a. d. 1872, 1873, 1874, 1875, 1876, 1877, 1878, 4879 and 1880; finder the Acts of May 1st 1868, P. L. 108; April 24th…

60. Trespass quare clausum fregit, by Abraham Z. Winger against Abraham Eife, to recover damages for breaking down the plaintiff’s fences and driving through his close. Held: notwithstanding that now the title might come in question under not guilty, that the special plea if found for plaintiff, entitled him to full costs.

63. This was an appeal by Margaret Lininger, John Lininger and Samuel B. Lininger from a decree of said court ordering and directing that the two last-named appellants take out letters testamentary on the estate of one Samuel Lininger, deceased, within thirty days, or else letters of administration issue to the persons entitled by law.

Appeal to the Court of Common Pleas of Adams county; Of May Term 1882, No. 71. This was an appeal by A. C. Musselman, administrator d. b. n. c. t. a. of John Waugh, deceased, from a decree of said court ordering and directing him to pay the sum of $4,654.80 to Robert Bell, administrator of the estate of James Waugh deceased.

201. Ejectment, by Ezra M. Myers against John E. Leas and Amanda, his wife, for a tract of land in Huntingdon township. The defendant, John E. Leas, filed a disclaimer of all title except as agent and trustee for his wife. On the trial, before McLean, P. J., both parties deduced title from one Peter Myers, father of the defendant, Amanda Leas.

64. This was an action of covenant by William Heaffer against the New Era Life Insurance Company (now the New Era Life Association) on. a policy of insurance for $3,000 issued by said company, on the life of Ida Flickinger. At the trial before MoOlean, P. J. the plaintiff offered in evidence á policy of insurance, issued by the defendant company, January 23d 1878, on the life of Ida Flickinger for the benefit of her husband, for the sum of $3,000.

<p>Error to the Court of Common Pleas of Westmoreland, county : Of October Term 1882, No. 49.</p> <p>This was an appeal from a judgment of a justice of the peace entered in favor of Jacob D. Kettering, against Sarah E. Bovard, in an action brought against her to recover compensation for services rendered as bar-keeper. Plea, coverture.</p> <p>On the trial, before Hunter, P. J., the following facts appeared: On February 3d 1877, the defendant, a married woman, presented her petition to the Court of Common Pleas, declaring her desire to avail herself of the benefit of the Act of April 3d 1872 (P. L. 35), securing to married women their separate earnings ; and by the direction of the -court her petition was subsequently filed and recorded. In June 1879 she was duly licensed to keep a tavern in the borough of Greens-burg, and in October of the same year she employed the plaintiff as bar-keeper. He remained with her in that capacity for eleven mouths, and then brought suit against the defendant for his wages, without joining her husband, alleging that by taking advantage of the provisions of the Act of 1872 she became liable as a feme sole trader.</p> <p>The defendant submitted the following points:</p> <p>1st. By the plaintiff’s failure to set forth in his pleadings such facts as bring this case within some one of the exceptions contained in the Act of 11th April 1848, he cannot charge the wife’s separate estate, and cannot recover.</p> <p>2nd. That there is no feme sole trading in Pennsylvania but what falls within the provisions of some statute, and that all the evidence and pleadings in this case do not bring it under Act of 1718, or any of its supplements, and plaintiff cannot recover.</p> <p>3rd. That the Act of 1872 does not make the wife, the defendant in this case, a feme sole trader, and she cannot be sued; nor is she personally liable for her debts or contracts, even in her separate business.</p> <p>4th. That the plea of coverture is a good defence, and if the plaintiff wished to avoid its effects, he must set forth in a replication the special circumstances which make the wife liable, or amend his declaration so as to set forth the circumstances ; and having failed to do this, he cannot recover; and the verdict must be for the defendant.</p> <p>5th. The husband must be held jointly with the wife, because no action will lie against her, even for necessaries, without joining him, as his estate is primarily liable for execution.</p> <p>The court reserved these points, and directed a verdict to be entered for the plaintiff; subsequently, in an opinion filed refusing defendant’s points, the court held, that the Act of April 3d 1872 makes a married woman who complies with its terms a feme sole trader as far as her separate earnings are concerned, and accordingly entered judgment for plaintiff; whereupon the defendant took this writ, assigning for error the refusal of her points and the entry of judgment for plaintiff.</p>

8. This was an appeal by A. C. Elirenfeldt and others from a decree of said court enjoining the appellant, Elirenfeldt, from officiating as pastor of the Evangelical Lutheran Zion Church of… Held: at which Rev. J. Weaver, President of the District Synod of Ohio, presided. After some discussion, the wing of the congregation which had opposed the constitution, submitted, in writing, a proposition upon which a settlement could be based.

77. Indictment of The Pittsburgh, Virginia & Charleston B. N. Company. Plea, not guilty. The indictment was based on an information filed by a street commissioner of Monongaliela City, and was in two counts, charging: First, the commission of a nuisance at common law, in erecting an embankment on Main street in said city, and thereby obstructing travel.

144. This was an indictment against John Seifried, Sr., which set out that the defendant “on April 13th 1882 ... at the county aforesaid and within the jurisdiction of this court, did unlawfully sell and cause to lie sold to......, rum, whisky, ale, beer, wine and other vinous, spirituous, malt and brewed liquors, without having first obtained a license agreeably to law for that purpose, contrary to the act. of general assembly in that 'Case made and provided . . . . ” At…

<p>Error to the Court of Common Pleas of Venango county: Of October Term 1882, No. 103.</p> <p>This was an action of assumpsit by Charles B. "Wright and William H. Kemble against the Antwerp Pipe Company, and the Oil City Pipe Company, on a promissory note. Defendants pleaded specially, that the consideration of the note was illegal.</p> <p>On the trial, before Taylor, P. J., the following facts appeared: — The note in suit was the joint obligation "of the two corporations defendant, given as part payment for certain shares of the stock of the Pennsylvania Transportation Company, drawn to the order of Henry Harley, agent of said Company, and by bim endorsed for value before maturity to the plaintiffs; who knew that the consideration therefor was stock in the Transportation Company. The stock was bought by the defendants in pursuance of a contract between them and Harley, and was delivered to and accepted by them, before the plaintiffs discounted the note;</p> <p>The Antwerp Pipe Company was incorporated under the Act of July 18th 1863, and its supplement of March 12th 1867, (2 Purd. 1408), and the Oil City Pipe Company was organized under the Act of April 29th 1874 (P. L. 73).</p> <p>The latter Act provides, inter alia, that it shall not be lawful for a corporation organized under it to use any of its funds in the purchase of stock in any other corporation, or to hold the same except as collateral security for a prior indebtedness.</p> <p>The defendants in their special plea alleged that the contract for the purchase of the stock “ was unauthorized by law or by th terms or provisions of the charters creating'the defendant corporations and was in all respects beyond the powers and authority of the officers and directors of the . defendant corporations to make, and was unlawful and void; that Henry Harley, the payee, at the time the note was made and delivered to him, knew that the defendants were corporations organized under flie laws of Pennsylvania, and that the note was null and void; and that the plaintiffs, at the time they negotiated for and received the note, knew that the defendants were corporations, as aforesaid, and that the consideration for the said note, and the contract under which it was given, was unauthorized by law, null and void.”</p> <p>The court instructed the jury that the consideration for the note was illegal, under the Act of 1874, and that the plaintiff's who knew the purpose for which the same was given, were affected with knowledge of the law, and, therefore, could not recover.</p> <p>Yerdict and judgment for defendants; whereupon the plaintiffs took this writ, assigning for error the above instruction to the jury.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: Of October Term 1882, No. 141.</p> <p>Debt, by James Cook against Ii. J. Branthoover and John McCauley, executor of the last will and testament of John Alcorn, deceased, upon a certain single bill under seal, alleged to have been given to said Cook by Branthoover and Alcorn jointly. Defendant Branthoover made no defence. McCauley, executor, hied a plea non est factum testatoris.</p> <p>On the trial, before Hunter, P. J., the'jury was sworn as to McCauley executor only. The plaintiff then offered to prove by defendant Branthoover the execution of the instrurdent. Defendant objected for the following reasons:</p> <p>“ 1st. Under the Act of 1869, the witness is incompetent, because being co-obligor with defendant, as alleged.</p> <p>(a.) The matter alleged in the plaintiff’s offer was a transaction between the witness and John Alcorn, deceased, whose estate by the executor of his last will, &c., is the defendant in the issue on trial.</p> <p>(b.) The witness being married to a daughter and devisee of the said testator defendant, he is incompetent to testify against the interest of his said wife.</p> <p>2nd. Under the Act of 1865, the witness is incompetent, because,</p> <p>(a.) He is not an adverse party, or person, for whose immediate and adverse benefit the present action or proceeding is defended; on the contrary his interest, the note in suit being joint, is adverse to the defendant to this issue.”</p> <p>Objection overruled. Evidence admitted. Exception.</p> <p>Rranthoover then testified that he had himself signed the note for Alcorn by his express authority and had also attached the seals, lie had not, however, written Alcorn’s name in his presence. Plaintiff then offered the due-bill in evidence; objected to on the ground that its execution had not been sufficiently proved. Objection overruled. Evidence admitted. Exception.</p> <p>Defendant requested the court to- charge as follows:</p> <p>1st. If you believe that the .signature and seal of John Alcorn, deceased, were affixed to the note in suit, in his absence, then, notwithstanding that you may belieye that he authorized the act in the manner testified to by H. J. Branthoover, the witness for the plaintiff, your verdict must be for the defendant. Refused. (Second assignment of error.)</p> <p>2nd. The testimony, and the witness H. J. Rranthoover, being incompetent, all the testimony given by him ought to be disregarded by you, and the same is withdrawn from your consideration. Reserved.</p> <p>3rd. Under all the evidence in the case, your verdict should be for the defendant. Reserved.</p> <p>The court ordered a verdict for plaintiff, which was rendered accordingly, and subsequently entered judgment on the points reserved, filing the following opinion :</p> <p>“ The question raised by the points has given me no little labor and concern.</p> <p>“I believe every word the witness testified to, but was he a competent witness ? On the trial the court overruled- the objection and admitted the offer (pro forma), and allowed the witness to- testify. The points reserved now raise the same question.</p> <p>“ The suit was brought against the surviving obligor, and the representatives of the deceased (alleged) co-obligor. This practice is not justifiable, but the question of an improper joinder was not raised. It is true the jury was sworn only as to the executor of Alcorn, but the witness was nevertheless a party to the record and was Called to testify substantially against himself. Under the Act of 1869, the witness could only be excluded on the ground of his wife being a beneficiary under the will of Alcorn, which was not formally shown, but even had it been made so to appear, still I think he was competent, for he was not testifying directly against his wife, and so far as the court was informed, even if the claim was collected off''the estate she woxrld not be hurt.</p> <p>“ Some light has been cast upon the question by Mr. Wharton in his ‘ Law of Evidence,’ sec. 466, as well by the ruling of the Court in Ash, et al. v. Guie, 97 Pa. St. 493.</p> <p>“We do not think the case of Uogeboom v. Gibbs, 7 Norris 235, rules this case as insisted upon. There the witness was not a party to the record, and was not called under the Act of 1865, and in addition his evidence was to divide responsibility by showing that the deceased was a partner. Here the witness testified that lie was wholly responsible, being the principal in the note, and I think he was a competent witness under the Act of 1869. It may be added that the various Acts of Assembly allowing parties to testify are enlarging Acts, and must be liberally construed. Still further may it be said, that the Act of 1869 does not interfere with the Act of 1865.”</p> <p>Defendant thereupon took this writ, assigning for error the admission of plaintiff’s offer of evidence, the answers to defendant’s points, the entry of judgment for plaintiff on-the points reserved and finally the entry of the judgment in favor of plaintiff, it appearing by the record tliat the joint obligor is alive and surviving defendant’s testator. (Seventh assignment of error.)</p>

35. Indictment of John F. Oliver for seduction under promise of marriage of Annie Whitmore, “a single woman, of good repute, under the age of twenty-one years.” Plea, not guilty. On the trial, the Commonwealth’s counsel called the prosecutrix, who testified......“In November 1880, when he proposed what he did, I refused him. I says, No Sir, not till I am your wife. I says, Wait till you marry me, and not till then. He says, You know we will be married in a few weeks.

120. Case, by Milo Clinefelter against Edward Spencer to recover damages for an alleged excessive distress. The parties waived a trial by jury and submitted the case to the court, Taylor, P. J., under the provisions of the Act of 1874. The court found the facts to be as follows: — In the year 1872, Edivard Spencer, the defendant, leased to Milo Clinefelter, the plaintiff, a lot of ground in Oil city for five years, at an annual rent of §50 per annum.

<p>Appeal from the Court of Common Pleas of Venango county: Of October Term 1881, No. 214.</p> <p>Appeal of Rebecca Thompson from a decree of said court dismissing a certain bill in equity filed by her against Orange Noble et al. for an account. Bill in equity wherein Rebecca Thompson was complainant and Orange Noble, G. B. Delemater, 1. M. Wilcox, W. H. Abbott and S. 8. Fertig, defendants. The bill alleged that the complainant and the said defendants were tenants in-common of an oil well, and that said complainant was entitled to one-eleventh part of the three-eighths part of three-fourths part of all the oil produced from said well. The bill alleged that defendants had refused to deliver to the complainant, the amount of oil to which she was entitled, and prayed for an account. The answer set forth the facts of the case at length and also denied that complainant was entitled to any greater proportion than one-eleventh part of three-eighths part of one-fourth part of the oil produced, which amount, it was alleged, had been duly delivered to her.</p> <p>The case was referred to J. D. Chadwick, Esq., as examiner and master, who reported the facts to be as follows:</p> <p>On March 28th 1860 John Farrell, being the owner of certain land in Allegheny township, made an agreement in writing with Orange Noble, G. B. Delemater, 1. L. Lamb, G. T. Churchill and William Nason in reference thereto. By said articles said Farrell for the consideration of six hundred dollars granted and sold unto said Noble and others, their heirs and assigns forever, “ for the purpose of prospecting, boring, digging, drilling, pumping and otherwise searching for and obtaining oil, salt and other minerals thereon,” the said tract of land, further granting to them all facilities for the production and removal of oil therefrom. It was further provided by said articles that the interest granted was to be held by the grantees, till otherwise arranged, in undivided eighth parts whereof Noble, Delemater and Lamb were each to have two and Churchill and Nason each one. Farrell, the grantor, was to receive one-fourth part of all the oil produced.</p> <p>Soon after the making of this agreement the grantees commenced sinking a well for oil, but not being successful, suspended operations in August 1860.</p> <p>Afterwards in the fall of 1860, Noble, Delemater and Lamb verbally proposed to take in a number of their"relatives and friends (eventually eleven in number), of whom Nathan Wood was one. It was talked over in his presence and he assented to be counted in.</p> <p>About the first of December 1861, Nathan Wood, by writing sold and conveyed to Rebecca Thompson, the complainant, certain oil interests including his light and expectancy in the Farrell property under the verbal proposal before mentioned of Noble, Delemater and Lamb, and to which he had before assented.</p> <p>In the autumn of 1862 Noble, Delemater and Lamb in pursuance of the parol agreement above mentioned conveyed to Nathan Wood and ten others each one-eleventh part of three-eighths part of the total interest in the property under the agreement with Farrell. Said conveyance contained, inter alia, the following provisions:</p> <p>“ The estate or interests hereby granted, being undivided parts of other undivided parts of said interest granted by said Farrell— to be subject to the control and management as to time and place or places of drilling, operating, &e., and manner, as to whether by hiring by the day or contract per foot or arrangement by sub-lease, or otherwise, for a share of the oil &c., or otherwise, whether among and to themselves or part of their number or strangers of person or persons, owning or controlling the larger share or shares of said interest or estate so granted by said Farrell. Each of the said persons to have the proceeds of 1-11th of 3-8th of such interest so vested by said Farrell’s articles, <fcc., in Noble, Delemater,'Lamb, Churchill and Nason; and be liable to a proportionate share of all expenses &c., and of all liabilities to said Farrell or others by virtue of the covenants and undertakings in the said lease or article of said Noble, Delemater, Lamb, Nason and Churchill. No transfer of any interest granted or any part thereof to be made by either or all of the eleven grantees named, which shall confer a right to any other person to meddle with or control the management referred to unless expressly ratified by a person or persons holding more than 1-2 the interest so granted by said Farrell to said Noble, Delemater, Lamb, Nason and Churchill.”</p> <p>At the time of the execution of this instrument the grantors knew that Wood had previously transferred all his interest to Rebecca Thompson, the complainant. On April 14th- 1863 Noble, Delemater and certain others interested in the Farrell tract executed a lease thereof to “said Noble and Delemater their heirs and assigns with such as they may associate with them, to have and to hold the same for their use forever for the purposes indicated” viz.: the boring and production of oil. Said Noble and Delemater agreed to sink the oil well on the tract to a fixed depth and were to retain one half of the oil produced. As to the remaining half of the oil the lease contained the following clause:</p> <p>“ Said Noble and Delemater agree that they -will pay and deliver or cause to be paid and delivered to said L. L. lamb, Wm. Nason, Gr. T. Churchill, Gr. B. Delemater and others inter-es ted in the lease or article or deed from Farrell of oil privileges &c., in barrels to be furnished by them, said Lamb, Nason and Churchill, or said Farrell, &c., one-half of all the oil they may obtain and save from said well which they have agreed to sink, or any which they may thereafter cause to be sunk on said Eremises in manner following, viz.: to said John Farrell, or amb, Nason, Churchill, Noble, Delemater, &c., for him, his heirs and assigns in such barrels as they may furnish, one-fourth of all such oil, and to said Lamb, Nason, Churchill, Noble, Delemater, &c., another one-fourth of such oil, &c., in such barrels, &c., as they may furnish therefor, or vessels proper for removing the same which they are to furnish.”</p> <p>Said lease was agreed to and was signed by a large majority of the interest in the tract. Complainant did not sign the same nor did she ever give any assent thereto. Her husband, having himself an interest in the tract by assignment, signed an approval of the lease at the foot thereof in the form following:</p> <p>“In behalf, and as agent for Rebecca Thompson my wife, the assignee of the interest of Nathan Wood, I approve the within arrangement.”</p> <p>Subsequently, Noble and Delemater entered into certain contracts with Fertig, Abbott and Willcox in regard to the boring of the well, whereby the three last named parties became entitled to certain interests in the product thereof.</p> <p>After the well was bored, V. M. Thompson, husband of complainant, demanded in his individual right and in her right a certain proportion of the product of the well. He demanded in her right one-eleventh part of three-eighths part of three-fourths of the total production. Defendants declined to pay over to him said proportion, claiming that complainant was only entitled to one-eleventh part of three-eighths part of one-fourth part of the total production. Certain oil was accordingly delivered to Thompson in his own right and in that of his wife, viz., in all 7556 barrels, of which he applied 5410 on his own account,.and the balance, viz., 214G, on account of his wife.</p> <p>The master was of opinion that the conveyance by Farrell to the five original parties created a tenancy in common and not a partnership. That the subsequent conveyance by Noble, Delemater and Lamb to Wood and the ton others conveyed an estate in fee simple to said grantees, and that by.virtue thereof, said grantees became tenants in common with the original purchasers from Farrell. That the interest of Wood under said conveyance duly passed to Bebecca Thompson, the complainant,, thus vesting in her the right t,o one-eleventh part of three-eighths part of one-fourth of all the oil produced. That the lease to Noble and Delemater, not being signed or assented to by complainant, was ineffectual as against her to deprive her of any part of her share of the oil. The master therefore recommended that a judgment quod computet be entered directing defendants to account to complainant for one-eleventh part of three-eighths part of three-fourths part of all the oil produced.</p> <p>Defendants filed exceptions to the report on the ground that the master erred in recommending the entry of a judgment quod computet and also that he erred in not finding the following facts.</p> <p>“ By virtue of the agreement of April 14th 1863, Noble and Delemater and such as they might associate with them, were to deliver the different parties in interest one-fourth of the oil in barrels or vessels proper for receiving the same, to be furnished by said parties. The enormous and unprecedented production of the well made such mode of delivery an impossibility, and it became necessary to adopt other arrangements. Meetings of the parties in interest were held and a plan adopted and carried into execution by which tanks for holding the oil were erected, at the common expense, and proper persons employed by the parties in interest who kept account of the oil and made deliveries of it on orders from those interested. This plan was adopted before the compromise or arrangement with Thompson and was assented to by him. All oil 'was drawn by orders on the book-keeper and the defendants had nothing to do with its delivery. They drew their oil like the rest. The books kept showed the amount of oil drawn by each owner and the share of the total amount drawn, each party was entitled to, but not the amount in tank. The books were always open for inspection and monthly statements were made, which any interested party could get on application. Thompson received a number of such statements and his evidence as to the production of the well is based upon them. Their correctness is disputed by no one.</p> <p>“ That the plan adopted was a successful one, is evident from the fact that no party in interest (and they became numerous) ever complained that he did not receive his share of the oil. All were satisfied with the arrangement. By this arrangement the responsibility for the delivery of the oil was taken from Noble and Delemater and a different plan of delivery substituted. Thompson expressed himself satisfied and got his share the oil.</p> <p>“ The defendants never knew until 1868 that there was any dissatisfaction on the part of the Thompsons or any claim made upon them, although Thompson lived within 40 rods of the residence of one of the defendants.</p> <p>“ Under the arrangement referred to, oil was delivered upon the orders of Y. M. Thompson, acting ostensibly as agent for his wife.”</p> <p>The master reported that although these were undisputed facts clearly established by the evidence, they had no bearing upon the question of the right of complainant to compel an account from defendants. That they were immaterial and irrelevant, and could not affect complainant’s rights.</p> <p>After argument the court, Brown, P. J., delivered an opinion sustaining the exceptions to the report. He was of opinion that the conveyance by Farrell vested a fee simple in the original grantees, but concluded further that the instrument between Noble et al. and "Wood et ál. conferred rights upon the grantees which were subject to the control and management of those holding the majority in interest. He was of opinion, therefore, that the lease to Noble and Delemater was fully authorized by said last named instrument, and being concurred in by a majority of those in interest was binding on complainant, although she had not assented thereto. He was further of opinion that since Noble and Delemater had taken exclusive possession of the premises in' question and continued to hold the same, complainant was bound to establish the allegation of tenancy in common, made by her in her bill by an action at law before she -was entitled to an account. He therefore entered a decree dismissing the bill. Complainant thereupon took this appeal, assigning for error the decree of the court.</p>

<p>Error to tlie Court of Common Pleas of Venango county: Of October Term 1882, No. 134.</p> <p>Assumpsit, by F. M. Wilson, H. M. Wilson and Cornelius Wilson, trading as Wilson & Sous, against R. M. Waugh, M. J. Jack and E. H. Jack, late trading as Waugh, Jack & Co., to recover the price of certain merchandise sold by plaintiffs to defendants.</p> <p>The writ was served on defendant Waugh alone, who pleaded non assumpsit, non assumpsit infra sex annos, payment with leave, etc.</p> <p>On the trial, before Taylor, P. J., the facts of the case appeared to be as follows: The goods in question were furnished during the year 1873, the last item being delivered October 7th 1883. By the terms of sale the purchase money became payable November 6th 1873. On December 11th 1873 the interest of defendant Waugh, in the firm of Waugh, Jack & Co., was sold at sheriff’s sale to one II. M. Harrier, who immediately transferred the same to M. J. Jack and E. II. Jack, said two last named parties continued the business trading as Jack Co.</p> <p>On February 17th 1874, II. M. Wilson of the firm plaintiff, applied to Jack & Co. for payment of the debt. He testified that he received from M. J. jack on that date, a note of the firm of Jack & Co. for $1,500, and the residue of the claim, viz.: $25.21 in cash. He admitted that he took the pote expecting it to be paid and that he gave a receipt in full for the old debt, but denied having made any agreement to discharge Waugh. He did not remember who was present at the time of the settlement.</p> <p>Waugh and Jack both admitted that the note was given to Wilson in Waugh’s presence. Waugh denied, however, that he had seen any cash paid and Jack did not remember having paid any. Jack further stated that Wilson had agreed to receive the note of Jack & Co. in full payment of his claim against the old firm and had given a receipt in full accordingly.</p> <p>Subsequently the firm of Jack & Co. became insolvent, and their note being unpaid the present suit was instituted December 13th 1880, the plaintiffs allowing a credit of $25.21 on account of their claim.</p> <p>Defendant requested the court to charge as follows : The interest of R. M. Waugh in the firm of Waugh, Jack & Co. having been sold at sheriff’s sale on the 11th of December, 1873, the firm was thereby dissolved as to him, and the remaining partners could not bind him by a subsequent acknowledgment of or payment upon the debt in suit. Affirmed.</p> <p>The court charged, inter alia, as follows:</p> <p>“It is in evidence, upon the part of the defence, and not contradicted, that in December, 1873, the firm of Waugh, Jack & Co. was dissolved by the insolvency of Waugh and a sale of his interest by the sheriff. This partnership contined after that sale for one purpose only, and that was for closing up the affairs of the partnership. No new debts could be contracted, and no new promises could be made to bind the firm. [The partnership having been dissolved by the insolvency of one, and a sale of his interest, was such an ending of the partnership that a promise made by one of the partners after that time to pay the debts, and made in good faith, would take the case out of the statute, so far as he was concerned; yet in regard to Waugh it would not have that effect.]</p> <p>“ There is no evidence of any promise by Waugh after the debt became due and payable, and [if you find there was no promise by Waugh to pay this debt, then your verdict will be for the defendant. The interest of Waugh in the firm having been sold at sheriff’s sale in 1873, the firm was thereafter dissolved as to him, and they could not bind him by any promise after that time] and the defendant’s point in this regard is affirmed.”</p> <p>Yerdiet and judgment for defendant. Plaintiffs thereupon took this writ assigning for error the affirmance of- defendants’ point and the portion of the charge above cited in brackets.</p>

2, of Allegheny county: Of October Term 1882, No. 133. Ejectment, by M. D. Erwin and Bertha V. his wife, in her right, against Ellen Dorris and Michael Dorris defendants, and Joseph Rupert, terre-tenant, for premises in the Ninth Ward of Pittsburgh. Ellen Dorris having filed a disclaimer of title, the suit was discontinued as to her. The other defendants pleaded the general issue.

Appear from a decree of the Court of Common Pleas No. 1 of Allegheny county: In equity: Of October Term 1882, No. 6.

<p>1. Money voluntarily paid under a claim, of right where there has been no mistake of fact cannot be recovered back; nor does the fact that the money is paid under protest, of itself, give a right to recover the sums so paid. The payment must have been made under compulsion to prevent the immediate seizure of goods or the arrest of the person.</p> <p>2. A., the mortgagee of premises in the city of Pittsburgh, bought in the land at sheriff’s sale for $50 under a levari facias issued upon a judgment obtained on his mortgage. Municipal taxes had been assessed on the property for the two years previous to the sale, the claims for which were filed subsequently thereto. Por want of goods and chattels on the premises the taxes could not be collected and a fi. fa. was issued by the city solicitor under the Act of April 14th 1803, § 6, by virtue of which the lands were advertised to be sold, whereupon- A. paid the amount supposed to be due under protest. It being afterwards acknowledged that the taxes were discharged by the sheriff’s sale, A. brought an action of assumpsit against the city to recover the amount so paid. Held, that the payment was made voluntarily and could not be recovered back.</p>

<p>Error to the Court of Common Pleas No. 1, of Allegheny county; Of October Term 1882, No. 10.</p> <p>Case, by William Schwindling, a minor, by his next friend Peter Schwindling against the Baltimore and Ohio Railroad Co. to recover damages for injuries to plaintiff alleged to have been caused by the negligence of defendant’s servants.</p> <p>On the trial, before Collier, J.,' the following facts appeared : Plaintiff, who was at the time of the accident between five and six years of age, lived with his parents at Osceola, a small station on the line of the defendant company’s railroad. On the day of the accident plaintiff’s two older brothers were sent by their mother across the railroad track to a store to make certain purchases. Finding the storekeeper busy they went upon the platform of the railroad station, which was on the same side of the track as the store. They then found that plaintiff had followed them and was standing upon the edge of the platform nearest the track looking at an approaching train. One of them called to him. to step back, but he. refused to do so. The approaching train had been cut some distance from the station, and the detached part ran upon the track immediately adjoining the station at the rate of about three or four miles an hour. Plaintiff, according to the testimony on his behalf, was caught by a projecting stirrup or step of one of the cars which was bent outward and was in consequence thrown under the cars, receiving the injury complained of.</p> <p>Defendant adduced evidence to show that none of the trainmen noticed the plaintiff until after the accident. It also proved that the cars had been examined after the accident and were found to be in perfect order. It also adduced some evidence showing that plaintiff, with his brothers and other boys, were amusing themselves by jumping on and off the moving train when the accident happened and that the same was caused by plaintiff missing his hold. This was, however, denied by the plaintiff.</p> <p>Defendant requested the court to charge that under the evidence the verdict should be for the defendant, and that there was not sufficient evidence of negligence on the part of the defendant to entitle the plaintiff to recover. The court, however, refused so to charge and directed the jury, inter alia, as follows :</p> <p>“ The defendants set up a defence which, if believed, will-defeat a recovery, although the plaintiff is a child. They deny in the first place that there was any permissive use, as it is called, of the tracks and platform; they deny that they knew that people were in the habit of crossing there; they say that the child was on the platform as a trespasser, that he had no right there; that the platform was for the purpose of accommodating passengers who were arriving and departing, and for people having business with the company; that the plaintiff was there unlawfully, and that even if he were not there unlawfully, he was trying to get on the cars when in motion, was catching hold of them as the train' moved, and while so doing slipped and fell and received the injury. If that is the case, the plaintiff cannot under any principle of law or honesty recover in this action. If you find the theory set up by the defence to be correct and sustained by the testimony, unpleasant as it may be to our feelings, the defendant company would not .be liable unless they were guilty of some gross or willful negligence. For instance, if the train-men saw the boy there and could have stopped-the train easily and went on and ran over him that would be a willful act, but there is nothing of that kind in this case.</p> <p>“ The whole case turns on how you find the facts. If you believe the theory of the plaintiff, that is, if you believe the defendant did not exercise ordinary care, that is, such care under the circumstances as an ordinarily prudent man would exercise, it would be negligence on the part of the company; but if the company did all that could be done under the circumstances, did what a reasonable man under such circumstances would do, it is all that is necessary. If the people on the car could not have stopped the train — and it is very plain to me from the evidence they could not — and were exercising ordinary care, the plaintiff cannot recover. Then, too, if the lad was a trespasser on the company’s platform, he cannot recover. On the other hand, if you believe the theory of the plaintiff that there was a want of ordinary care under all the circumstances, the plaintiff can recover.”</p> <p>Verdict and judgment for the plaintiff in the sum of $2,000. Defendant thereupon took this writ assigning for error, inter alia, the refusal of the court to charge the jury that under the evidence defendant was entitled to a verdict.</p>

2 of Allegheny county: Of October Term 1882, No. 47. This was ah action of trover and conversion by E. H. Darrah, Jos. Held: that under the evidence the plaintiff was entitled to recover in trover, but that it depended upon a question of fact to be drawn from the matters stated in the case and not upon a point of law, holding that the jibs were personal chattels, and that plaintiff did not lose his right of property by leaving them on the premises.

2 of Allegheny eounty: Of October Term 1882, No. 121. Debt, by the Commonwealth of Pennsylvania for use of Mary B. Devlin against John F. Devlin and Joseph F. Devlin upon a recognizance given by the defendants.

<p>Error to the Court of Common Pleas No. 1 of Allegheny county: Of October Term 1882, No. 97.</p> <p>Debt, by Catharine Drach, administratrix of Christian Drach, deceased, against the Metropolitan Life Insurance Company, upon a policy of life insurance.</p> <p>Judgment was entered by the court for the plaintiff upon demurrer to the narr. The said pleadings and judgment were as follows:</p> <p>Narr.</p> <p>Allegheney County, ss.</p> <p>The Metropolitan Life Insurance company, a corporation, chartered or created under the laws of the state of New York, the home office of which is New York, and doing business in a branch office at No. 96.Fourth avenue, Pittsburgh, in Allegheny county, Pennsylvania, was summoned to answer Catharine Draeli, administratrix of Christian Drach, deceased, of a plea of debt, and thereupon said plaintiff by Jas. F. Gildea, her attorney, complains that whereas heretofore, to wit, on the 31st day of October 1881, by a certain deed poll or policy of insurance then and there made by said company, sealed with its seal and-an exact fac simile of said deed or policy of insurance, the- said plaintiff now brings here into court the date whereof is the day and year aforesaid, the said company did promise to pay after death of Christian Drach, his executor, administrator, husband or wife, etc., or person or persons entitled to the same, the sum of one hundred and. fifty dollars, on due proof of death and surrender of said policy and receipt book in consideration of the payment by said Catharine Drach, administratrix as aforesaid of the sum of ten cents per week payable in advance, to wit, on 31st October, and the like sum of ten cents payable in.advance, on Monday of each week during the continuance of said policy,;and - in consideration of Christian Drach not engaging in blasting or sub-marine operations or in the manufacture of inflamable or explosive substances, or in niilitary or naval service, (except the militia when not in actual service,) nor committing suicide, nor'death by the hands of justice, nor in violation of law, and thereupon said defendant became insured of the life of said-Christian Drach, for the benefit of said plaintiff to the amount of one Hundred and fifty dollars, and the said plaintiff further says that she paid all the premiums of policy required as and when required by the terms thereof, and plaintiff further says that-' Christian Drach died on the 21st day.of December ,1881, of. natural causes, at Pittsburgh, to wit in the county aforesaid, of which afterward, to wit, on the day of January 7th 1882, defendant had notice by proof of death and made and furnished; by the plaintiff in substance and form as required by said-corporation, and also on said date, to wit, January 7th 1882, the policy and receipt book containing the entries of premiums were exhibited to W. G. Stahiland, the .authorized agent of said corporation at Ins office, No. 96 Fourth avenue, Pittsburgh, and said policy and receipt book surrendered to said company, that on or about January 12th 1882, the said policy and receipt book were returned to said plaintiff by its agent, and accompanying them was a refusal on part of said company to pay any money whatever to the plaintiff, the said corporation saying it was not liable and owed nothing on account of policy taken out on the life of said Christian Drach for benefit of said plaintiff, by reason whereof an action has accrued to said plaintiff to demand from said defendant the sum of one hundred and fifty dollars, so issued as aforesaid.</p> <p>And whereas, also, the said defendants, to wit, on the 12th day of January 1882, to wit, at Pittsburgh, in the county aforesaid, had and received a certain other sum of money, to wit, the sum of one hundred and fifty dollars, like lawful money to and for the use of said plaintiff and to be paid by said defendant, when the said defendant should thereunto afterward be requested whereby and by reason of the divers other sums of money before that time, and then due and owing in arrears, and unpaid from said defendant to plaintiff, and upon that accounting the said defendant was then and there said to be in arrear and indebted to said plaintiff in the further sum of one hundred and fifty dollars, to be paid by said defendant when said plaintiff should thereafterward request defendant to pay the same. Whereby and by reason of the last mentioned sum of money being and remaining wholly unpaid, an action has accrued to the said plaintiff to demand and have of said defendant the sum of one hundred and fifty dollars residue of the said sum above demanded.</p> <p>Yet the said defendant although often requested so to do hath not as yet paid the said one hundred and fifty dollars above demanded, or any part thereof to said plaintiff but to do this hath hitherto wholly refused and still doth refuse to the damage of said plaintiff of one hundred and fifty dollars and therefore he brings suit.</p> <p>Demurrer.</p> <p>And now, to wit, April 15th 1882, G. L. B. Fetterman and W. K. Jennings, counsel for defendant, demur to the plaintiff’s declaration and say that the same is not sufficient in law to support the plaintiff’s claim.</p> <p>Judgment.</p> <p>And now, to wit, May 6th 1882, the demurrer overruled in this case and judgment entered for the plaintiff upon the demurrer, to be liquidated upon the praecipe of the plaintiff’s attorney. By The Court.</p> <p>The defendant, having excepted to the judgment, took this writ of error, assigning for error the entry of said judgment for the plaintiff and the refusal of the court to enter judgment for the plaintiff upon the demurrer.</p> <p>A copy of the policy in suit was attached to the paper book of the plaintiff in error, the material portion of which was as follows :</p> <p>The Metropolitan Life Insurance Company, in consideration, etc.......doth hereby agree to pay to the person or persons designated herein upon receipt of proofs, satisfactory to said company, of the death of the life insured, the sum of money stipulated in said Schedule, under the words “ Amount of Insurance.”</p> <p>The “ Schedule ” was incorporated in the policy, and was as follows :</p> <p>Schedule above referred to.</p> <p>Name of person whose life is insured under this policy.</p> <p>Christian Drach.</p> <p>Number of policy.- Age of Insured. Weekly premium.</p> <p>475442 33 10c.</p> <p>Amount of Insurance.</p> <p>If life insured is rated at 12 years of age or over.</p> <p>$150.</p> <p>On«-tkird only of the above sum payable if death occur after 3 calendar months and within 6 calendar months from date; two-thirds only if death occur after 6 calendar months and within one year; and the full amount only if death occur after one year, except in case of consumption, when but one-half the above amounts will be payable if death occur during the first year.</p> <p>If life insured is rated under 12 years of age.</p> <p>Amount payable provided death occur after 3 calendar months from date and after this policy has been in force for the following periods, viz :</p> <p>Ase nest Under One Two Three Four Five Sis Seven Eight Nine Ten Birthday, lyear. year, years, years, years, years, years, years, years, years, years</p> <p>2 14 19 34 28 31 35 40 50 60 70 90</p> <p>3 19 24 28 31 35 40 50 60 70 90 123</p> <p>4 24 28 31 35 40 50 60 70 90 123</p> <p>5 28 31 35 40 50 60 70 90 123</p> <p>6 31 35 40 50 60 70 90 123</p> <p>7 35 40 50 60 70 90 123</p> <p>8 40 50 60 70 90 123</p> <p>9 50 60 70 90 123</p> <p>10 60 70 90 123</p> <p>11 70 90 123</p> <p>When the amount of Insurance, according to the terms of this table, reaches $123, it will continue at that sum during the lifetime of the person insuredj subject to the terms and conditions of this policy.</p> <p>Upon tlie death of the insured by accident at any time after the date of this policy, and while the same is in force, the; full sum assured shall be payable.</p>

<p>Certiorari to the Court of Quarter Sessions of Allegheny county, at the instance of John L. Rhoads, Henry Dallmeyer, et al., exceptants and remonstrants, to remove the record in re Incorporation of the Borough of Osborne.</p> <p>Appeal of John L. Bhoads, Henry Dallmeyer, et al., from the decree of the Court of Quarter Sessions of Allegheny county incorporating the Borough of Osborne: Of October Term 1882, No. 32.</p> <p>These two eases were argued together and involved the same facts, as follows: Upon January 12th 1881 a petition for the incorporation of the borough of Osborne was presented to the Quarter Sessions of Allegheny county, ordered to be filed, and laid before the grand jury to find whether or not the conditions prescribed by the Act of Assembly had been complied with and whether it was expedient to grant the prayer thereof. Upon the same day the grand jury certified to the court that a majority thereof found that the conditions prescribed had been complied with and that it was expedient to grant the prayer of the petitioners.</p> <p>The petition set forth that the town or village of Osborne in said county of Allegheny contained a collection of houses collocated after a regular plan in regard to streets and lanes; that the village contained not more than one hundred freeholders; and that the petitioners were desirous that the said town should be incorporated by the name and style of the Borough of Osborne according to the boundaries set forth in their petition. The petition was signed by twenty-four “inhabitants and freeholders” and by seven “non-resident freeholders,” and was accompanied by an affidavit of one of the number that those of the petitioners marked “inhabitants” represented a large majority of the resident freeholders as well as a few of the inhabitants of the territory of the proposed borough, and that those marked “ non-resident freeholders” were owners of land therein, but did not reside within the territorial limits, and that the signatures were in the proper handwriting of the petitioners. This affidavit was dated January 12th 1881. Following was an oath of publication of notice of the application, as follows:</p> <p>Commonwealth of Pennsylvania, County of Allegheny, ss.</p> <p>James Allison, of the “ Presbyterian Banner,” in said county, being duly sworn, doth depose and say, that he is one of the proprietors of the “ Presbyterian Banner,” a public newspaper, published in said county, and the notice, of which the annexed is a copy, cut from said newspaper, was printed and published in the regular edition and issue of said newspaper on the following days, viz., on November 24th December 1st 8th 15th and 22d 1880. James Allison.</p> <p>Subscribed and sworn before me, this eleventh day of January. George W. Murphy,</p> <p> Notary Public. </p> <p> Printed Copy of Notice. </p> <p>PUBLIC NOTICE.</p> <p>Notice is hereby given that it is intended to .apply, for a borough charter for part of Aleppo Tp., Allegheny Co., Pa., to be called the “Borough of Osborne.” John S. Robb,</p> <p> Attorney for Petitioners. </p> <p>Upon February 28th 1881 the remonstrance of John L. Rhoads, Henry Dallmeyer et al. was filed against the granting of the petition. The remonstrance set forth and averred various facts rendering the incorporation of the borough of Osborne inexpedient 'and inadvisable. The remonstrance was signed by seven resident .freeholders, nine inhabitants, not freeholders, and six non-resident freeholders, and was verified by affidavit.</p> <p>The remonstrants also filed exceptions to the report of the grand jury; whereupon the court appointed George Elphim stone, Esq., a commissioner, to take testimony and report the same to the court.</p> <p>A large amount of testimony as to the expediency of the incorporation was taken by the commissioner and reported by him to the court, which upon December 3d 1881 entered a decree dismissing the exceptions and incorporating the borough’ of Osborne as prayed for.</p> <p>Whereupon Rhoads et ah.took this certiorari, assigning for error, inter alia, that it nowhere appeared that the application for' the incorporation was signed by thé petitioners within three months preceding its presentation to the court; and that no public notice was given of the intended application for a borough charter as required by the Act of Assembly of Juno 2d 1871.</p> <p>The same parties having obtained a special allocatur, also took this appeal, assigning for error in detail the dismissal by the court, of their several exceptions to the report of the Grand Jury as to the expediency of the incorporation of the proposed borough.</p>

1 of Allegheny county: Of October Term 1882, No. 76. Assumpsit, by Joseph Nixon against William McCrory, on a promissory note given by defendant to plaintiff, dated March 17th 1881, at twelve months, for $906.69.

1 of Allegheny county: Of October Term 1882, No. 82. Trespass, by Henry Gollings against the Borough of Beltzhoover to recover for damages done to the plaintiff’s property (1) by excessive flow of water, caused, as alleged, by the negligence of the defendant’s servants in grading a public street; (2) by a change of grade of said street.

1, of Allegheny county. Ejectment, by J. J. Jenny, Eredolin Jenny and Balthasar Jenny, against F. Zehnder, M. Zehnder, and Henry Lafferty, terre-tenant, for a lot of ground in the city of Allegheny. Plea, the general issue. On the trial, before Bailey, J., it was admitted that botli parties claimed through one Zehnder, whose full baptismal name was John Jacob Frederick Zehnder.

108. From tbe petitions and answers filed, particularly referred to below, tlie facts of this case appeared to be as follows: — William Oliver was, in bis lifetime, guardian of William Neel and Harvey Neel, and died intestate June 23d 1875, having a large balance in bis hands as such guardian, and seised of certain real estate incumbered by liens. George Oliver was appointed administrator of his estate.

1. of Allegheny county: Of October Term 1882, No. 104. Assumpsit, by George W. Peebles and Mary E., his wife, against the city of Pittsburgh, to. recover back $6,316.33 being the amount of taxes paid by the plaintiffs to the defendant and alleged to have been unlawfully assessed.’.

2 of Allegheny county r Of October and November Terra 1882, No. 110. Case, by W. C. Kroeger against Albert Pitcairn, to recover the amount of the loss sustained by the plaintiff in consequence of certain acts and representations made by defendant.

2, of Allegheny county: Of October and November Term 1882, No. 143. Attachment execution, wherein W. B. Lupton & Co. were plaintiffs, John P. Moore, defendant, and J. H. Riley, garnishee.

57. Indictment against John Abernethy for the murder of William Leslie. Defendant pleaded not guilty. On the trial, before Courier, J., the following facts appeared :— John Abernethy, the defendant, was a man of about twenty-two years of age, strong and well made. On December 5th 1881, which was the day of the billing, the prisoner came several times to a saloon On Diamond street kept by one Early and took liquor.

17. This was an appeal by Peter Haberman from a decree of said court surcharging him with a certain sum of money upon the audit of his third account as executor of Gertrude Zweindinger deceased. The facts of the case were as follows: Gertrude Zweidinger in her lifetime was engaged in the business of selling music and musical instruments. She was assisted in her business by her minor son one John Zweidinger.

2, of Allegheny county: Of October Term 1882, No. 55. Case, by Jacob Born against the Allegheny and Perrysville Plank Road Company, a corporation, to recover damages for personal injuries to the plaintiff, caused, as alleged, by the negligence of the defendant. Plea, not guilty.

1, of Allegheny county: Of October Term 1882, No. 28. Replevin, by William Keown against Charles Hartman for a bay pacing mare.* On the trial, before Stowe, P. J., the following facts appeared: In pursuance of an arrangement made by Charles Hartman, Jr,, a minor son of the defendant and Daie Keown, a brother of the plaintiff, said Dale Keown took possession of a certain bay mare called “ Geneva,” belonging to defendant, agreeing, as was alleged by the defendant, to train her…

1 of Allegheny county: Of October Term 1882, No. 100. Assumpsit, by W. C. Stewart and M. Eva Stewart his wife in right of said wife, against The Allegheny National Bank of Pittsburgh Penna. to recover one-half of all the rent collected by defendant from certain real estate in the City of Pittsburgh. On the trial, before Collier, J., the following facts appeared : William B. Hays was in his lifetime seised, inter alia, of an undivided half interest in the lot in question.

1, of Allegheny eounty: Of October Term 1882, No. 60. Case, by Henry Chappel against John Carlin and Thomas McLaughlin doing business as Carlin & Co., to recover damages for injuries to plaintiff’s house and lot by subsidence, caused by excavations made by defendants while engaged in mining the coal lying beneath the surface.

1 of Allegheny county: Of October Term 1882, No. 147. This was, in the court below, a certiorari to W. E. Thompson,. Esquire, a justice of the peace. The transcript and record showed the following facts: — The Commonwealth of Pennsylvania, for use of Robert McClure, as well as for use of Allegheny County Home, brought an action of debt against Frederick Gedikoh, before a justice, to recover $50 penalty under the Act of February 26th 1855 (Pamph.

Writs of error to the Court of Common Pleas No. 2, of Allegheny county : Of October Term 1882, Nos. 1 and 13. These were in the court below, actions of assumpsit by Christian Sauer and Dominick Ihmsen against Francis T. Plunkett, to recover the sums of $580 and $1,250 respectively due the plaintiffs.

2 of Allegheny county: Cf October Term 1882, No. 7. Assumpsit. The parties to this suit were named in the praecipe and summons as follows: “ A. A. Hutchinson; and Thomas B. Hutchinson, partners as A. A. Hutchinson & Bro.,” plaintiffs, against “ The Benwood Iron Works,-a corporation,” defendant.

<p>1. The organic law of the Roman Catholic Church is to the effect that the church is bound to provide a decent support for its priests. This, however, does not constitute an implied contract on the part of the bishop of a diocese to support the priests therein. No priest can, therefore, in the absence of an express contract, bring assumpsit against his bishop for an amount sufficient decently to support him.</p> <p>2. It is in the discretion of bishops of the Roman Catholic Church to decide whether the manner in which a priest performs his official duties, and the nature of his walk and conversation in life are such as to entitle him to support from the church. What circumstances are sucli as to warrant a bishop in deciding that a priest is not so entitled, considered.</p> <p>3. The relation between a Roman Catholic ’bishop and priest is not that of hirer and hired, or principal and agent.</p>

<p>Aepeal of James A. Ewing, Samuel Meloney and Julia A. Meloney from a decree of the Court of Common Pleas No. 1 of Allegheny county: Of October Term 1882, No. 106.</p> <p>Bill in Equity, filed June 17th 1881, between George S. Head, complainant, and James A. Ewing, Samuel Meloney and Julia A. Meloney, defendants, praying that a certain contract for sale of a tract of land therein described, made by Samuel J. Meloney and Julia A. Meloney, his wife, to said James A. Ewing, dated June 6th 1881, be decreed to be fraudulent and void as to said plaintiff, and that the court order and decree specific performance of a certain other agreement for the sale of the same tract of land to said George S. Head, dated June 2d 1881.</p> <p>The court appointed Jacob F. Slagle, Esq., as Master and examiner to take testimony and report the facts with a form of decree. According to his report the admitted facts of the case were as follows: Julia A. Meloney was the wife of Samuel J. Meloney, who left the state of Pennsylvania in 1852 and went to the state of California. During his absence in the year 1874 Julia A. Meloney presented her petition to the Court of Common Pleas of Allegheny county at No. 634 of March Term 1874, and was duly declared to be a feme sole trader. This decree of the court was never revoked or vacated. The property in dispute was a portion of a tract of land belonging to John Hays, the father of said Julia A. Meloney, of which he died seised. By proceedings in partition in the Orphans’ Court of Allegheny county at No. 3 of March Term, 1876 said land was divided into five purparts of which purpart No. 4 was awarded to said Julia A. Meloney, and afterwards she inherited from a deceased brother one-third of another purpart amounting in all to some fifty_ acres of land situate in Collier township, Allegheny county.</p> <p>In 1S78. Samuel J. Meloney returned to Allegheny county and-on June 2d 1S81 was living with said Julia A. Meloney in her house adjoining her said tract of land.</p> <p>On June 2d 1881, said Samuel J. and Julia A. Meloney agreed to sell the land in dispute to said George S. Head, the plaintiff, for the price of $100 per acre, and entered into written articles without acknowledgment. On June 14th 1881, said George S. Head tendered the full amount of purchase money, $5,172.00 which Mrs. Meloney refused to accept. On June 6th 1881, said Samuel J. Meloney and J alia A. Meloney entered into an article of agreement with James A. Ewing, duly acknowledged and recorded in deed book, volume 422, page 229, whereby they agreed to sell the same premises to said James A. Ewing, he paying, on account of purchase money, $1,000, and he was in possession of the same at the time the bill was filed. At the time the agreement was made to sell to James A. Ewing, he knew that Meloney and wife had made the agreement to convey to said George S. Head, and prior to June 21st 1881, said George S. Head had purchased the land owned by the other heirs of James Hays, adjoining the tract purchased from Mrs. Meloney.</p> <p>The questions of fact in dispute were as follows:</p> <p>1st. It was alleged by James A. Ewing that prior to June 2d 1881, he had made a parol contract with said Samuel J. Meloney and wife for the purchase of said tract of land. 2d. That he had taken possession of the premises in pursuance of said contract. 3rd. That the written agreement of June 6th was made to carry into effect the parol contract previously made. 4th. That at the time of the making of the contract of June 2d 1881, said George S. Head knew of the parol agreement with Ewing, improperly persuaded Meloney and wife to make the agreement with him in disregard of the rights of said Ewing.</p> <p>Upon all these questions of fact the master found in favor of the plaintiff, and further reported as follows:</p> <p>“ It is contended by defendants that the contract of June 2d with Mr. Head can not be enforced : 1st, because Mrs. Meloney being a married woman, the contract, not being separately acknowledged, is not binding .upon her; aud 2d, that the Meloneys, having made anew contract with Ewing, under which he is in possession of the premises, to sustain plaintiff’s bill as against him would be in the nature of an ejectment, and therefore not sustainable in equity.</p> <p>“ Mrs. Meloney was declared a feme sole trader under the provisions of the Act of May 4th 1855, and the certificate granted at No. 634, March Term, 1874, has not been revoked. As that Act declares that the certificate shall be conclusive evidence of her authority until revoked it follows that she must be regarded as a feme sole trader, notwithstanding the return of her husband.</p> <p>“ The 2d section of that Act declares that, ‘ her property, real and personal, howsoever acquired shall be subject to her free and absolute disposal during life, or by will,” and it was accordingly hold in Wilson v. Coursin, 72 Pa. St. 306, that a woman decreed a feme sole trader under the Act of May 4th 1855, may during the life or her husband convey her real estate by deed in which her husband does not join. [Having power to make a deed without a separate acknowledgment, a contract, in the same form would be binding upon her, and a court of equity would have jurisdiction to enforce specific performance of the contract.] Dankel v. Hunter, 61 Pa. St. 382. (Tenth assignment of error.)</p> <p>“ Indeed, the same case suggests the question whether there would be any other remedy to the purchaser, and the case of Cleaver v. Scheets, 70 Pa. St. 496, relied upon by defendant, seems rather to have the other bearing. [The fact that Samuel Meloney, the husband, joined in the contract can certainly not be held to change the effect of the agreement as to his wife. Its only effect would be to-convey his interest as tenant by curtesy, which she possibly could not divest without his consent.”] (Ninth assignment of error.)</p> <p>The court dismissed exceptions filed to this report and confirmed the Master’s findings of fact and his application of the law to them and entered the following decree: “ That the contract between Julia A. Meloney and Samuel J. Meloney of the one part and James A. Ewing of the other part bearing date of June 6th 1881, and recorded in the office of the Recorder of Allegheny county in Deed Book, vol. 422, page 299, is void and of no effect as against said George S. Head, his heirs and assigns, and that the same shall be delivered up to be cancelled. That Samuel J. Meloney and Julia A. Meloney shaH upon payment by said George S. Head to said Julia A. Meloney the sum of $5,172, make, execute and deliver to said George S. Head a good and sufficient deed of conveyance to him his heirs and assigns, for the property particularly described in the first paragraph of the bill filed in this case.....”</p> <p>The defendants took this appeal, assigning for error, inter alia, the dismissal of their exceptions to the master’s findings of fact and conclusions of law, and the above decree.</p>

<p>Error to the Court of Oyer and Terminer of Westmoreland county: Of October Term 1882, No. 112.</p> <p>This was an indictment against Silas S. Gray for the murder of Mary McCready.</p> <p>Upon the trial, before Hunter, P. J., the Commonwealth proved that Mrs. Mary McCready on and prior to February 1877 lived in a small house on the Eusldminetas river, two miles above Paulton, in Westmoreland county. Upon the 20th day of February 1877, Mrs. McCready disappeared and was never seen subsequently by any of her neighbors. Her son James Mc-Cready, who was at that time about ten years of age testified: “ I saw her last in the morning. I don’t remember wha.t she was doing that morning. I ¿aw her in the house when I started to school, about 8 o’clock in the morning. It was after 4 o’clock when I got back in the evening — near about 4 o’clock, on the same day 1 went home and mother was not there. I went into the house, hut there was nobody there. There was nobody at homo. I staid around there till about dark, then I went up to Daugherty’s. When I went to the house the door was not locked. There was a good fire on and a couple of the bureau drawers were standing open. They were the middle drawers. I don’t remember what kind of clothing my mother had on that moaning. She had on just her every-day dress. After I went up to Daugherty’s, I came back to the house on Wednesday, I believe — the next day — I think it was on Wednesday morning, I found nobody there. I found the house that morning just the way I left it the evening before. I don’t remember of finding anything. Mrs. Lawrence’s boy went with me. My mother’s clothing was in the house. There were some dresses — a shawl and a bonnet. She had some good clothing, and working clothes. They were there.....There was a good fire when I came home from school. It was a grate in the room. It does not seem to have been covered. There was just a big lump of coal lying on it. There were no indications of supper being prepared. The table was not spread for supper. 1 stayed around till dark and then went to Mr. Daugherty’s.”</p> <p>It was further proved that on April 4th 1878, a fishing party on the Kiskiminetas found-a human skull near the bank of that river about eight feet from the edge of the water on a sand bank which extended some distance into the river and was covered with water when the river was high. Near the skull was a lower jaw-bone imbedded in the sand. A few locks of dark hair mixed with gray about ten inches long adhered to the skull. There were the marks of two wounds: a blow upon the temporal portion of the skull and a cut upon the top of the head, cither of which in the opinion of the medical witnesses, would be sufficient to produce death. By the time of the trial (May 23d 1882) the hair attached to the skull had disappeared, probably on account of the handling to which it was subjected during the four years, and Dr. William McBriar, one of the medical witnesses, was asked the following question:—</p> <p>Q. Supposing a skull was found yesterday on which there was attached hair ten inches long hanging from the occipital bone, what would be your inference in that case?</p> <p>A. From the custom and habit of wearing the hair nowadays I would infer that it was the skull of a female.</p> <p>The defendant’s counsel moved the court to strike out the above question and answer. The motion was denied. Exception. (Sixth assignment of error.)</p> <p>Witnesses for the prosecution testified that the defendant had been seen in the neighborhood of Mrs. McCready’s about the time of her disappearance but did not notice anything peculiar about him except that he was extremely dirty.</p> <p>The Commonwealth called Mrs. Lawrence, a neighbor of Mrs. McCready, to prove that she, Mrs. Lawrence, was well acquainted with Mrs. McCready — that the last time she saw her was about a week before she was missing — that at that time witness expected to be confined, and had, or did make, at that time, arrangements with deceased to wait on her during her confinement, which she was soon expecting.</p> <p>This offer was objected to. Objection overruled and evidence admitted. Exception. (First assignment of error.)</p> <p>H. A. Rudolph testified that he was well acquainted with Mrs. McCready and during a period of two years was in the habit of eating at the same table with her. The Commonwealth offered to prove by him that he was well acquainted with Mrs. McCready in her life and that there were certain marks about her head, and particularly about her lower jaw-bone and the teeth therein, and that the witness is able to identify this particular jaw-bone and skull from these peculiarities.” Objected to. Objection overruled and evidence admitted. Exception. (Second assignment of error.)</p> <p>Mary McCready a daughter of the deceased, was asked by the prosecution “ From what you know of your mother’s lower jaw, state whether or not you believe this jaw to be that of your mother ? Objected to on the ground that the witness is not competent to give an opinion and that the conclusions from these facts are for the jury. Objection overruled. Exception. (Fifth assignment of error.)</p> <p>The witness testified in answer to this question : “ That lower jaw looks very familiar to me.....From my knowledge of iny mother’s jaw and from the appearance of that jaw, I believe it to be my mother’s.” Upon cross-examination she said: “Mother had just a few teeth in her upper jaw, here in front. She had none back, only decayed teeth, roots like, back. I don’t know how many. There was nothing back of the eye teeth on each side only roots like, decayed teeth. I can’t just tell whether the last teeth wore the eye teeth, but I know all she had was a few in front. There was no double teeth on either side above, that I can remember, but there was some roots of decayed teeth back on each side.”</p> <p>Mrs. Mary Mason testified that about the time of Mrs. McCready’s disappearance she had heard the defendant saj^ that he would kill Mrs. McCready before he would leave the place. The objection of defendant to this testimony was overruled. Exception. (Third assignment of error.)</p> <p>The Commonwealth then called Johnston Dixon, who testified that in March 1878 he was a fellow prisoner of Gray’s in the Armstrong county jail at ICittanning, where Gray was confined for another offence, and that Gray had at that time made the following confession: “He told me he had a hatchet, and and had struck her on the side of the head with the hatchet, and the woman fell to the ground, and he was afraid she wasn’t dead, so he turned the axe end of the hatchet and hit her on the top of the head. Then he had taken the hatchet and rolled it up in her bonnet and buried it along side of a log, along the road, between the railroad and the river, and .then he had tied a string around her neck and tied a stone to the other end of it and throwed her into the river. He told me he had throwed her into the river some place above Apollo, handy to some dam. I don’t know where the place is. I never was there, to the best of my knowledge ... I have never seen the skull.” The offer of this evidence had been objected to, and the objection overruled. Exception. (Fourth assignment of error.)</p> <p>The defendant introduced testimony chiefly attacking the credibility of Rudolph and expert testimony to show the impossibility of identifying a skull in the condition of the one found.</p> <p>The court in its general charge said inter alia: “ [Threats are competent evidence when the corpus delicti, or the offense itself, has once been shown. They do not, of themselves, give rise to a presumption of law of guilt, but, taken with other circumstances, an inference of guilt may be logically inferred.] [Where a threat is repeated, however, it would gather force by the repetition.]” (Ninth assignment of error.)</p> <p>Verdict of guilty of murder in the first decree. A motion for a new trial and in arrest of judgment was made and refused and on August 26th 1882 the defendant was sentenced to be hanged.</p> <p>The defendant took this writ of error, assigning for error, inter alia, the rulings of the court upon the offers of evidence,. those portions of the general charge of the court included above within brackets, and the action of the court in refusing to grant a new trial as set forth in the following assignments of error:</p> <p>10th. The court erred in not granting a new trial for the reason “ That the jury acted improperly, in that on the Saturday evening pending the trial they allowed the door of their room, at the hotel, to stand open, the people to collect at the door,.and one of the officers in charge of the jury to remain seated inside of the room with them.”</p> <p>11th. The court erred in not granting a new trial for the reason “ That the district attorney in addressing the jury, while commenting upon the testimony, character and credibility of the witness, Johnston Dixon, remarked that the said Dixon was convicted of horse-stealing for the reason that he, the said Dixon, and his wife, could not be witnesses in his behalf to show that ho had traded for the horse honestly, and did not steal him; whereas the evidence showed that he was tried and convicted in the Court of Quarter Sessions of Armstrong county, Pennsylvania, at - Term 1878, almost one year after the Act of 21th March 1877, allowing defendants to testify in their own behalf, had become a law, thereby misleading the jury as to the credibility of the witness, Dixon.”</p>

<p>1. A case stated, being a substitute for and in the nature of a special verdict, must present facts, and not the evidence.</p> <p>2. At the close of the evidence, on the trial of a cause, the counsel for plaintiffs and defendants filed an agreement, in writing, “that the evidence, oral and record, and the entire records, shall be treated as a case stated, and judgment to be entered thereon by the court, according to its views of the law and facts, each party reserving the right to sue out a writ of error.” The court thereupon withdrew a juror, and afterwards entered “judgment on the case stated ” for flip plaintiff: Held, that the agreement was bad, as a case stated-, and, further, that it could not be sustained as a submission of the case to the court under the Act of April 22d 1874, the provisions of said Act not having been complied with.</p> <p>8. Where a special verdict or case stated in the nature thereof is defective, in failing to find the facts, a venire facias de novo will be awarded.</p>

<p>1. A testamentary charge on real estate situate in the city of Pittsburgh, will be discharged by a judicial sale of the premises under a subsequent municipal lien.</p> <p>2. A. by her will devised certain real estate in the city of Pittsburgh, to her married daughter B., for life, with remainder to B.’s children, charging said property with the support of an imbecile son. B., and her husband C., procured the sale of the premises on a municipal lien for grading the street upon which it abutted, in order to divest the charge thereon; and the purchaser soon afterwards conveyed it to C., who, with his wife, executed a mortgage thereon to D. D. subsequently foreclosed the mortgage and bought in the property. The administrator c. t. a. of A.’s estate, who had been supporting the imbecile son, filed a petition in the Orphans’ Court to enforce the charge; by a sale of the property to reimburse him for said support. Held, that the charge on the land was divested by the sheriff’s sale; and that the record was not notice to D. of C.’s fraudulent intention in procuring said sale. Held, therefore, that the petition should be dismissed.</p> <p>3. Wistar v. City of Philadelphia, 5 Norris 215, distinguished.</p>

<p>1. The authority to grade and pave streets is among the implied powers of a municipal corporation.</p> <p>2. The compensation which is secured by the constitution of 1874, for an injury to real estate occasioned by the improvement of highways by borough authorities, cannot be recovered in an action of trespass quare clausum fregit.</p> <p>3. An action for such consequential injury must be under the Act of May 24th 1879, P. L. 129.</p> <p>4. A., a property owner, brought trespass against B., a certain borough, for an alleged entry upon, and injury to his lot, in improving the street upon which it abutted. In order to fix the location of the street and to show the amount of ground taken from his lot, A. called a surveyor, who produced a plan of the property, made from an old plot of the borough regulators, and from certain deeds. This plan, A. offered in evidence, and his offer was rejected by the court. B. claimed that there had been no encroachment on A.’s lot, and justified the work on the street, under the Act of April 3d 1867 (P. L. 732), and under a borough ordinance of July 10th 1876, passed in pursuance thereof. The ordinance provided for a citizen’s committee to act with other authorities, although no authority for such committee was found in the Act; and B. offered evidence to show that certain provisions of the Act had been complied with, and that in accordance with the terms of the ordinance “a committee was appointed by the property owners,” . . . and the work thus carried on. This evidence was admitted by the court under objection, and a verdict and judgment rendered for plaintiff. Held, that there was no error in the rulings of the court as to the admission or rejection of evidence. Held further, that although it had been previously decided by the Supreme Court, that the assessment on private property owners under the Act of 1867 could not be collected; yet the provisions of the Act in regard to the right to make municipal improvements were valid.</p>

<p>Error to the Court of Common Pleas No. 2 of Allegheny county: Of October Term 1882, No. 160.</p> <p>Ejectment, by E. L. Barton, against Annie E. S. Hunter, administratrix of Pev. Wm. Hunter deceased, and others, for a certain tract of land in B&aver and Allegheny counties containing about 142 acres. Both parties claimed title as purchasers at sheriff’s sales of the land, as the property of James Strouss; the defendant at a sale held in 1875, and the plaintiff at one held in 1880.</p> <p>On the trial, before White J., the following facts appeared; In 1875 the land in question was owned by James Strouss, against whom there had been numerous judgments entered, some of which were recorded in both said counties, for money due the estate of Wm. Hunter deceased, and others. In the winter or spring of this year Strouss visited Mrs. Hunter, for the purpose of procuring an additional loan from her, but subsequently the following agreement was entered into between the said James Strouss, and Mrs. Hunter and Amos W. Enlow another creditor.</p> <p>“This agreement made this third day of May 1875, between ....</p> <p>“Witnesseth that the said James Strouss, in consideration of the covenants on the part of the parties of the second part hereinafter contained, doth covenant and agree to and with the said Amos Enlow and Annie E. S. Hunter, adm’x, that he will not dispute any claims of the said parties which stand upon the file of liens in Allegheny and Beaver counties against him, but will permit all his property and real estate to be put to sale by the sheriff of either of said counties as soon as it can be done by due process of law, and that he will not interpose any hindrance thereto, and that he will give up all receipts now in his possession for moneys that have been paid upon any liens against him which have not been receipted on the docket in the Prothonotary’s office in said counties.</p> <p>“ And the said Amos Enlow and Annie E. S. Hunter, adm’x, in consideration of the covenants on the part of the party of the first part, do covenant and agree to and with the said James Strouss that they will either purchase the property and real estate aforementioned at the sale of the same made by the sheriff, or cause it to bring a fair and sufficient value if it be sold to any other parties, and further that they will, on condition of purchasing the property aforesaid, put the same to resale with payments on time, and then, after all claims of their own are liquidated, both principal and interest, they will.place all remaining proceeds of the sale in the hands of any member of the family of said James Strouss that he may designate, and further that they will pay to the said James Strouss two hundred dollars on or before the first day of , one thousand eight hundred and seventy five.</p> <p>“In witness whereof we have hereunto set our hands and seals the day and year first above written.</p> <p>“ Sealed and delivered James Strouss. [l. s.] in presence of the A. W. Enlow. [l. s.]</p> <p>Annie E. S. Hunter, [l. s.]”</p> <p>On March 5th 1875, in pursuance of this agreement Mrs. Hunter issued execution on one of the judgments held by her as administratrix and in December of the same year at the sheriff’s sale, which had been adjourned from September, she bought the property for §4,550 being about $31.50 per acre. After the sale Mrs. Hunter obtained, for cash and notes, assignments to herself of the several judgments, which were prior liens to her own against the premises, and in the sheriff’s return the $4,550 was first appropriated to the payment of these liens, and then on account of her other judgments some of which were not reached. Strouss retained possession of the property for a time but was subsequently dispossessed at the instance of the defendants, by sheriff’s jury.</p> <p>In 1880 other creditors who held judgments against Strouss subsequent to Mrs. Hunter’s issued execution and had the property sold again by the sheriff, claiming that the sale in 1875 under the above agreement, was a fraud on the other creditors and void. At this sale, in 1880, E. L. Barton the plaintiff, acting as trustee for the other creditors, purchased the property.</p> <p>The plaintiff submitted inter alia, the following points:</p> <p>(1) “ That the article of agreement of May 31st 1875, in evidence, is prima facie fraudulent as to creditors.” Refused.</p> <p>(2) “That any title to the property of James Strouss acquired by the defendant under the terms and conditions and in pursuance of the terms of the agreement of May 31st 1875, in evidence, is absolutely null and void as against bona fide creditors of the said James Strouss.” Refused.</p> <p>(14) That under the plaintiff’s evidence tending to prove fraud on part of the defendant in this case, the jury will consider all the separate facts in evidence, whether each fact of itself would be sufficient or not to fasten fraud upon her in the premises, and they may consider separate facts, if they are connected by the evidence, and tend to prove that the defendant entered into and carried out a scheme or plan, to purchase the land in dispute at an undervalue, and for the benefit of herself and also the benefit of James Strouss or his family. Affirmed.</p> <p>In the general charge the court instructed the jury inter alia as follows:</p> <p>“ A sheriff’s sale should be free, open and untainted by fraud. Any trick or device of a purchaser which prevents a fair sale is a fraud upon creditors, and if by means of it he gets the property at less than it otherwise would have sold for he does not obtain a good title and it may be defeated by a subsequent sale of the property on the judgment of another creditor. To work this result, however, the purchaser must have been guilty of some falsehood or trick before or at the time of the sale which succeeded, and he must have obtained the property for less than it otherwise would have sold for. All of these are essential elements to defeat the title of the purchaser. A mere fraudulent intent or effort, if not successful, is not sufficient, nor is the mere fact that the property was purchased at less than its value.</p> <p>Plaintiff’s counsel have asked me to instruct you that the agreement of May 31st 1875, is fraudulent on its face. We decline to give you such instructions. We say to you that it is not necessarily fraudulent, and further that we see nothing in it indicating an intention to cheat creditors or prevent a fair sale of the property. It does not bind Mrs. Hunter and Enlow, or Strouss, to do anything illegal and improper. Evidently drawn by one not much accustomed to draw such papers, it is full on unimportant matters and indefinite on those more vital. Why Strouss agreed not to dispute the claims of Enlow and Mrs. Hunter, and for what purpose he gave up the receipts, is not .apparent, nor why they were to pay him $200. It is not to be simply inferred that these were fraudulent acts or for a fraudulent purpose. They seem rather to be in the nature of a compromise between the parties of some matter's in dispute. What receipts were to be given up? Against the judgments of Enlow and Mrs. Hunter or on former judgments ? And were they given up to enable Enlow and Mrs. Hunter to protect themselves from unjust claims of prior creditors, or to enable them to practice a fraud upon other creditors ? When an agreement may be construed for an honest purpose a jury should not guess that it was intended for a fraudulent one. What was the $200 to be paid for? To secure the co-operation of Strouss in any fraud, as a loan or gratuity to him, or to avoid a factious and exactions opposition to the collection of honest claims against him ? The inference should not be in favor of dishonesty but rather of honesty. The burden of proof is on the plaintiff to show an improper or fraudulent purpose in the agreement. It is only in the light of the surrounding circumstances that we can understand its real object, and for that reason we refuse to say it is prima facie fraudulent, but submit the question to you upon all the evidence in the case. The provision to re-sell the property, and after paying the defendants’ claims, place the surplus, if any, in the hands of such member of the Strouss family as he might designate, if honestly made for the benefit of his family, and not for the purpose of hindering or delaying creditors or interfering with a fair sheriff’s sale, was not fraudulent, and would not render the defendant’s purchase at the sheriff’s sale void as to the other creditors.</p> <p>Verdict and judgment for defendants, whereupon the plaintiff took this writ, assigning for error, the charge of the court; and also the answers to numerous points submitted, and the rejection of certain offers of evidence.</p>

<p>1. The sanity or insanity of a guardian who executes a mortgage for minor wards under an order of the Orphans’ Court, is not material.</p> <p>3. The jurisdiction of the Orphans’ Court to order a sale or mortgage of real estate is based on some preceding relation of the person applying for such order to the property thus to be disposed of, as guardian, executor, etc. But if there is no such relation, such an order is without jurisdiction and invalid and may be impeached collaterally.</p> <p>3. Where A. presented a petition to the Orphans’ court, falsely alleging her previous appointment as guardian of certain minors, and praying for authority to mortgage their real estate: Held, that an order of court empowering her to make such a mortgage was of no effect, and that its validity could be impeached in a suit in equity for the cancellation and satisfaction of the mortgage.</p>

<p>1. If a murder is committed in an attempt to conceal stolen goods, evidence may be introduced at the trial, tending to connect the murder with the robbery, in order to prove the motive and object of the crime, and as part of the history of the occurrence.</p> <p>2. Where in a trial for murder, the court, referring to the testimony of a witness, which was somewhat contradictory and. involved, said, in substance, that if the man had not been so ignorant, and had had a better command of language, “he might have been able to give some plausible explanation of the train of thought which led him to testify as he did.” Held, not to be error.</p> <p>3. A further instruction to the jury, that if they believed that certain witnesses had made sworn contradictory statements in regard to facts material to the issue, the testimony might be rejected; and before it was received as a basis for a verdict it should be carefully scrutinized. Held, not to be error.</p>

148. This was an appeal by John McMurray, guardian of Samuel II. Watters, Catharine Watters and William Watters from a decree of said court, directing George W. McMurray, administrator of Samuel Watters, deceased, to pay to John W. Chalfont and C. B. Herron, the balance of decedent’s estate in his hands for distribution, on account of their claim against said estate.

<p>Appeal from a decree of the Common Pleas of Butler county: Of January Term 1882, No. 12.</p> <p>This was an appeal of the Harmony National Bank from a decree of the Common Pleas of Butler County, making distribution of a fund in court, arising from a sheriff’s sale of land, sold as the property of W. G. Stoughton, under a judgment obtained upon a mortgage given by him to Charles McCandless.</p> <p>The facts of the case were substantially as follows: In 1876 W. H. H. Riddle became the indorser on a note of W. G. Stoughton to the Harmony National Bank for $5,000 for which indorsement Stoughton assigned to Riddle $5,000 worth of stock in the same bank as collateral security. Subsequently, at the request of Stoughton and Charles McCandless, Riddle assigned the stock to McCandless, and in lieu thereof received other stock of the same bank amounting to $3,000, and a deed from Stoughton for an undivided interest in a farm valued at $2,000 as collateral for his indorsement. The deed was executed and delivered to the cashier of the First National Bank of Butler where it remained unrecorded.</p> <p>Upon February 14th 1878, Stoughton executed a mortgage for $4,800 to McCandless as idemnity to him against indorsements, the mortgage however, not expressing upon its face for what purpose it was given. As this mortgage included the property previously conveyed to Riddle, it was agreed that the latter should relinquish his deed in consideration of participating in the mortgage security. Riddle testified upon this point as follows : "After Mr. Stoughton gave the mortgage from which this fund has arisen to Mr. McCandless, he (Stoughton) came to me and told me what he had done ; that he had first refused to put in the mortgage the property he had secured me with, but on Mr. McCandless agreeing to assign to me a similar amount of the mortgage he consented to it; I then called upon Mr. McCandless and asked him about this security of mine and he said that was the arrangement; and made to me an assignment of $2,000 of this mortgage on the train between this and Pittsburgh, when he was on his way to New Mexico; this assignment was made by Mr. McCandless, with the consent of Mr. Stoughton; Mr. McCandless prior to this, and before the giving of the mortgage, transferred to me $3,000 of his stock in the Harmony National Bank, which was applied as a payment on the Stoughton note.....My present recollection of the transaction is that this arrangement was importunately insisted upon by Mr. Stoughton; at the time, I regarded it as so much loss to myself; the securities he had given me I did not regard as near equal to my indorsement for it; the properties in the mortgage, in my opinion, were estimated by Stoughton clear beyond their value ; if that had been the arrangement at the time the paper was executed to Stoughton, I suppose it would have been put in it.”</p> <p>Contemporaneously with the execution of the mortgage Mc-Candless executed the following instrument to Stoughton (not under seal):—</p> <p>“ Whereas, William G. Stoughton has this day deeded me nine hundred acres of land, more or less, situate in Buena Yista, Sac, Calhoun, Pocahontas counties, Iowa, in consideration of the sum of six thousand dollars, mentioned in the deed. The consideration thereof was not paid by me to him, but these lands were deeded me for the purpose of securing me against losses by reason of being his endorser on notes in Parker Saving's Rank, Butler Savings Bank and the First National Bank of Butler, German National Bank of Millerstown, The Third National Rank of Pittsburgh, and also the mortgage given me by him in the Carr and McDonald farms; and the Zacliariah Phillips farm, and Hoge farm, and deed for one-third of the Shannon land, and the Cambria county land was for the same purpose, und to secure me against losses by said endorsements.</p> <p>“Now in the event that the debts are paid by the said Wm. G. Stoughton, and I am not called for the payment of the same or any part thereof, I am to reconvey said land to him and satisfy said mortgage by him paying any taxes I may have paid for him on the Iowa lands, but in the event that I have to pay any portion, or all of said debts in said banks above mentioned, or their renewals, then he has the right to have one whole year frem the time I have paid on said indebtedness, to procure a purchaser of the said Iowa lands at the highest price that can be procured for the same, and I am to make deed to the purchaser or purchasers and receive so much of said purchase money ¡ as is sufficient to refund the money I have paid for him, and interest thereon from the time of payment, and in case no sale can be made of the same in said time, then the purchase money of the same, viz: six thousand dollars, shall be credited on any payments I may have made for him of the date I made the payments, and if any remains in my hands it is to be paid over to him when all the debts for which I am endorser for him as aforesaid have been,paid.</p> <p>“ February 14th 1878. Charles McCandless.”</p> <p>An assignment of $1,500 of this mortgage to H. E. Wick, as of the same date, but not under seal and without witnesses was noted in the margin of the record, as security for him against a note endorsed by him for Stoughton. By several mesne assignments this became vested in the Harmony National Bank in the reduced amount of $500, and constituted a preferred claim in their hands, being allowed without controversy. A like informal assignment of $2,000 to the Butler Savings Bank to secure McCandless’s and Wick’s indorsements on notes held by the bank was make by McCandless on May 25th 1878. The claim arising therefrom was also allowed without controversy.</p> <p>On the 26th or 27th of May 1878, McCandless executed to W. H. H. Biddle an assignment of $2,000 of the mortgage in pursuance of their agreement to secure him against the note of Stoughton indorsed by him and held by the Harmony Bank. After the maturity of the note Biddle assigned this security to the bank on October 2d 1879.</p> <p>The notes, made by Stoughton and indorsed by McCandless, against which, inter alia, this mortgage was given to McCandless, were as follows: Note for $4,528.20, due December 16th 1879; and one for $1,431.51, due December 14th 1879, both held by the First National Bank; and one, amounting to $13,000, held by the Parker Savings Bank. The date of the maturity of this note was not stated.</p> <p>On May 4th 1880, McCandless executed to Geo. H. Graham “for value received,” an assignment of all his “right title interest and cláim present or that may accrue ” from the said mortgage. Graham was not a creditor of Stoughton. The notes not having been paid, and both Stoughton and McCandless being insolvent (though the precise, dates of their insolvency did not appear from the testimony), an action was brought upon the mortgage under the caption of Charles McCandless for use of the Harmony National Bank, Butler Savings Bank and George H. Graham v. W. S. Stoughton, on which judgment was obtained October 24th 1881. The mortgaged premises brought at sheriff’s sale $2,330.50 and after the payment of the uncontested claims a balance for distribution was left of $1,200.95. This was claimed by the Harmony National Bank by virtue of Biddle’s assignment to them of the $2,000 of the mortgage, by the First National Bank and by the Parker Savings Bank as creditors both of the maker and indorser of the notes, against which said mortgage was given, and by George H. Graham, as assignee of McCandless.</p> <p>Opon the questions of law thus presented, the Auditor, appointed by the court to report distribution of the fund (James W. Beed, Esq.), reported as follows:</p> <p>“ The principle is well.settled that when a surety, or a person standing in the position of a surety for the payment of a debt, receives security for his indemnity and to discharge such indebtedness, the principal creditor is in equity entitled to the benefit of that security and it makes no difference that the principal creditor did not know of this at the time, or give credit on the faith of it: Rice’s Appeal, 29 P. Smith 206; Cornwell’s Appeal, 7 W. & S. 305; Erb’s Appeal, 2 Pa. R. 296; Himes v. Barnitz, 8 Watts 39; Carman v. Noble, 9 Barr 366; Worrall’s Appeal, 5 Wright 524; Mifflin Nat. Bank’s Appeal, 38 Leg. In. 349; 2 Out. 150; 1 Penny. 233.</p> <p>The defeasance shows that the mortgage was executed to indemnify Chas. McCandless as surety of W. G. Stoughton on certain notes of Parker Savings Bank, Butler Savings Bank, Pirst National Bank of Butler, German National Bank of Millerstown and Third National Bank of Pittsburgh. The indemnity to Chas. McCandless was also indemnity to the creditors named in the defeasance. At the execution of the mortgage Mr. McCandless was the fiduciary of Mr. Stoughton and the creditors named in the defeasance, and he could not rightfully assign the mortgage or any part thereof to their detriment.</p> <p>By authority of Jones on Mortgages, vol. 1, section 726, “ A mortgage to a surety to secure him is in effect a security to the principal creditor and he is entitled to the benefit of it,” but “If it be a mortgage of indemnity, the security cannot enforce it until he has been injured, or has paid the debt for which he was surety, and in like manner the security does not in the first instance attach to the debt as an incident to it, but whatever equity may arise in favor of the creditor with regard to the security, arises afterward and comes into existence when the surety’s right to call upon the security becomes fixed.” “When the debt is paid, the mortgage expires,” ibid. 840, is probably the leason of this rule. The Auditor understands, further, from this authority, that neither surety nor creditor has a right in esse until the debtor fails to pay the secured debt, but pending the failure to pay, each have an inchoate right that upon a certain contingency may become complete and. absolute, and during the pendency the mortgagee is quasi trustee for both debtor and creditor, and a mortgagee’s assignment of the security before his rights were complete would pass no title, because of the cited authority he would have no title to assign. His assignment after his right had vested, with notice of the equities of creditors, would be void as against them because, by the same authority, their rights vested contemporaneously with his. “ A mortgage distinct from the debt has no value in itself, and if assigned, the assignee holds it in trust for the .holder of the note or debt.” Ibid. 838. And the Auditor is of opinion that the assignee accepting the assignment, with notice of the creditors’ equities, would take for their use, and would stand in the same fiduciary relation towards them as did his assignor. The question might have been asked: Why cannot a surety holding a mortgage as indemnity, assign it before the equity of a creditor arises, if he might under same circumstances surrender it? By the authority cited, section 387: “Even after insolvency of the parties primarily holders for the debt, the mortgagee may surrender the security, if he does it in good faith, and before any claim is made upon him for it.’ There is undoubtedly wide enough difference between an assignment and a surrender, but the authority stated leaves the reason of the rule cited a matter of conjecture. Perhaps the reason might bo sought from what follows, in same paragraph: ‘ But after the principal debtor has become insolvent, the security cannot make a valid agreement with the holder or any party interested in one of the notes on which he is indemnified by the mortgage, that the security shall be first applied to such note; the holders of all such notes are entitled in equity to share the property in proportion to their respective claims. When a mortgage is given to indemnify an indorser the creditor has an equitable claim to the security, and after the liability is fixed is entitled to have the mortgage assigned to him. This is the rule not only where the condition is that the mortgagor shall pay the debt, but also where it merely stipulates that he shall indemnify the surety.’ These principles seem to establish that the mortgagee has no power, in any manner, to divert the condition of the instrument to any other channel than originally provided for. To do so might give one creditor an undue advantage over another and fraud might be perpetrated with impunity and with every semblance of legality by assignment of the security to a confederate for a nominal consideration, and thereby defeating the rights of bona fide creditors. In other .words, an insolvent debtor, by collusion with his indemnified surety and a third person, might place all his mortgaged property out of the reach of his creditors, to be used for his own future benefit. And further, an assignment by the mortgagee before forfeiture of the indemnity, if held valid, would presuppose an absolute right in him by the mortgage from date of execution, instead.of from date of forfeiture. But the effect of surrender of the surety is entirely different. No injury could ensue in consequence thereof and all the debtor’s creditors would be left as before— upon an equal footing.</p> <p>“From these premises it follows, that while the indemnity to the surety exists the incipient rights of the indorsed creditors cannot be defeated by any collusion between the mortgagor and mortgagee; and although the mortgagor would request the mortgagee to assign to a third person, the Auditor cannot see that such an assignment would be more valid as against secured creditors, than if the mortgagee had made it of his own volition. The third person, by such proceeding, might take all of what otherwise would go to the secured creditors, if the mortgage remained as originally or was surrendered.</p> <p>“ The Auditor is fully satisfied from the testimony referred to in the text of the report, that Mr. Riddle cannot claim a right by the mortgage other than by his assignment, and that he took the assignment with notice of the equities of other creditors secured by the mortgage, and that consequently he has no right as against them, nor has his assignee for the reasons before reported. . . . . .</p> <p>“ The demand of Geo. H. Graham upon the fund for distribution rests upon the following:</p> <p>“May 4th 1880. For value received I assign to Geo. H. Graham all my right, title, interest and claim in this mortgage present or that may accrue to me through the reversion of the portion assigned to the Butler Savings Bank.</p> <p>“ (Signed) Chas. McCandless.</p> <p>“As before stated, the mortgage was given Ohas. McCandless to secure him as endorser of W. G. Stoughton. The endorsed notes have hot been paid — until they are paid their holders are entitled to the security, given Mr. McCandless. Mr. McCandless and Mr. Stoughton are both insolvent — unless the creditors can realize from the security they have nothing. Their rights’vested in the security from the time of its execution until they were paid or otherwise satisfied. Mr. McCandless could acquire no title against them, consequently Mr. Graham could take by his assignment what Mr. McCandless had and no more. Mr. McCandless’ rights were postponed to the secured creditors. So must be Mr. Graham’s. The stream can rise no higher than its source. So far. as the evidence goes Mr. Graham cannot be aggrieved, because there is no allegation that Mr. McCandles's pretended to have what he had not. The assignment was of his right, title and interest only. That he-had certain equities cannot be denied, but none such as would entitle him to any part of this fund, and at all events Mr. Graham has not shown that he gave any consideration for the assignment, which the Auditor holds lie would be bound to do in order to prevail against bona fide creditors.”</p> <p>The auditor’accordingly awarded the fund in court to the First National Bank and the Parker Savings Bank pro rata. Exceptions were filed thereto by the Harmony National Bank and dismissed by the court below, and the report of the auditor was confirmed. McJunkin, P. J. (no opinion filed). From this debree of the court the Harmony National Bank, took this appeal, assigning for error the action of the court in dismissing the exceptions filed by them to the report of the Auditor, and the decree confirming the same.</p>

<p>1. In an action against a surety, a judgment recovered against the principal debtor is, in the absence of fraud or collusion, conclusive as to the amount of the indebtedness as against the surety.</p> <p>2. A. having issued .execution upon a judgment entered against B., an order of court was made in vacation staying the writ “until the next term,” which order, by the rule of court applicable thereto, if not then objected to and rescinded by the court, was to stand in full force as an order of the court. A bond was given by B., with C. as surety to A., to indemnify him from all damages that might be sustained by reason of such stay of proceedings. Upon the first day of the next term a rule was granted to show cause why the judgment should not be opened, which. rule wad"made absolute, and at that time the property remaining and embraced in the execution was sufficient to satisfy the judgment. On. tiffitnal a verdict was rendered for A. and.judgmenfwais entered thereon, prior to whiqh time B. was adjudicated a bankrupt, and hi? property had entirely disappeared, none having ever come into the hands of his assignees. The order made in vacation was not objected to or rescindcd by the court. ‘ In an action by A. against C. the surety upon his bond of indemnityHeld (reversing the judgment of: the court, below), that the condition of the bond referred to the stay, after, as well as before the first day of the next term, and that therefore the court erred in directing a Verdict for the defendant.</p>

175. Debt, by Jacob Frederick, assignee of George Walter, sheriff of Butler county against W. H. Bradford, A. A. Shntt, W. H. Hoffman, R. V. Abbott, P. Christie and John Satterfield, upon a claim property bond in replevin, wherein W. II. Bradford .was principal and the other defendants were sureties.

223. On March 24th 1877, judgment was entered in the Court of Common Pleas of Armstrong county, in favor of the Kittanning Insurance Company against J. W. McFarland and John W. Scott, upon a judgment note for $1,050, wherein McFarland was maker and Scott was surety. A fi. fa. was issued and returned nulla bona; a testatum fi. fa: was issued, March 24th 1877, to the sheriff of Butler comity, and the real estate of John Scott in that county was levied upon April 9th 1877.

260. This was an action of assumpsit by Sylvester S. Smith and Elias W. Snook, doing business as Smith & Snook, against Cyrus Kitchen and Samuel B. Dick, to recover the amount of certain taxes alleged to have been paid by the plaintiffs, for the defendants.

<p>Error to the Court of Common Pleas of Clarion county: Of January Term 1882, No. 431.</p> <p>This was an action of debt by John Banks in part for use of John W. Reed against Jeremiah Delo, B. F. Keck and Thos. A. McKeon upon a bond given by these defendants together with Samuel M. Smith and Jno. A. McDowell to the legal plaintiff.</p> <p>The legal plaintiffs, John Banks and S. M. Smith, were partners as machinists in the Clarion oil field, Smith being the managing partner. Upon November 19th 1877 Banks filed a bill in equity in the Common Pleas of Clarion county, alleging mismanagement on the part of Smith and praying for a dissolution, an account, and the appointment of a receiver. Upon the hearing of the application on November 26th 1877 the court made the following order:</p> <p>“ And now, to wit, November 26th 1877, the above application (for appointment of receiver) made in open court and after argument, upon the consideration thereof, it is ordered, adjudged and decreed that the defendant, S. it. Smith, shall give a bond with two sureties, to be approved by the court, within five days, conditioned for the payment of any sum or sums that may be found due or owing John Banks, growing out of or arising from the partnership of Smith or Banks, or hereafter arising from collections made by said Smith of said funds, —in the sum of six thousand dollars ($6,000); and in case of the failure of the said Smith to file the approved bond aforesaid, within the time herein mentioned, then a receiver to be appointed as herein prayed for.”</p> <p>On December 3d 1877 Smith accordingly filed the bond as required with the above named Keck, McKeon, McDowell and Delo as sureties, which was approved by the court. The condition of the bond was as follows:</p> <p>“ The condition of this obligation is such that if the said S. M. Smith, his heirs, executors or administrators shall well and truly pay or cause to be paid unto the said John Banks (his) certain attorney, executors administrators or assigns the just and full sum that may be found due and owing the said John Banks, growing out of or arising from the partnership of said Smith & Banks, or hereafter arising from collections made by said Smith of said funds, without any fraud or further delay, then this obligation to be void, else to remain in full force and virtue.”</p> <p>Upon January 17th 1878, Banks again applied for the appointment of a receiver, averring dishonesty and mismanagement by Smith, and that plaintiff had no security from the said Smith for deponent’s share of the partnership property.</p> <p>The court accordingly appointed one Johnson as receiver, who forthwith took the assets and business out of Smith’s hands.</p> <p>Upon November 13th 1879, in the equity suit for an account the court made a decree against Smith and in favor of Banks for $618.76. To recover this amount Banks brought the present suit upon the bond above mentioned, against Smith and his four sureties. Judgment was taken for want of appearance against the defendants served, which was opened upon the payment of $200 by the defendants, when the case went on to trial for the balance.</p> <p>Upon the trial, the record of the above facts was shown in evidence, whereupon the defendant offered to show that between the filing of the bond and the order of court of January 17th appointing Johnson as receiver, no assets came into the hands of Smith or were converted by him, except possibly a very small amount not exceeding $50 if any. Objected to; Objection sustained. Exception. (First assignment of error.)</p> <p>The plaintiff requested the court inter alia to charge as follows:</p> <p>3. “Under the evidence, the verdict of the jury should be for the plaintiff for the amount of the said decree in equity, with interest thereon, less the sum of $200 paid by defendants June 11th 1880, and deducted at that date.”</p> <p>Answer. “We answer that point in the affirmative.” Exception. (Third assignment of error.)</p> <p>The defendants requested the court, inter alia, to charge as follows:</p> <p>2. “ The bond in suit having been given in consideration and on condition that this court would not appoint a receiver to take the assets and business of the firm of Smith & Banks out of the hands of Smith as managing partner ; and shortly after the filing of said bond, this court having, at the instance and request of the plaintiff, Banks, appointed one Michael Johnson as receiver, who took the said assets and business out of Smith’s hands, said Banks could not hold the sureties liable on said bond except for such assets as he must show were collected or converted by Smith between the filing of said bond and the appointment of Michael Johnson as receiver.”</p> <p>Answer. “We answer that point in the negative.” Exception. (Fifth assignment of error.)</p> <p>The jury under the direction of the court found a verdict for the plaintiff for $183.17 on which judgment was duly entered. Whereupon the defendants took this writ assigning for error, inter alia, the ruling of the court upon the defendants’ offer of evidence, and the answers to points as above stated.</p>

266. Assumpsit by Charles Harrington against B. B. Dunkle, sheriff, to recover damages for the alleged refusal of the defendant to deliver 400 feet of oil well casing claimed to have been purchased by the plaintiff at public sale.

<p>1. When a vendor institutes an action founded upon a contract for the sale of land, recovers a judgment for the purchase money and proceeds by execution to sell the land, he must be construed as selling all the estate in the land which he agreed to sell to the defendant.</p> <p>2. In such case the vendor’s lien on the property sold is prior to all others, and must be first satisfied out of the proceeds of the sheriff’s sale.</p> <p>3. A., the equitable owner of land in Indiana county, agreed to sell the same to B., and took as security for a part of the purchase money B.’s judgment bond, which was entered up in Indiana county, and for the balance B. & O.’s judgment bond which was entered up in Butler county. The purchase money not being paid according to the agreement of sale, A. issued execution in Indiana county and the land was sold to D. for a sum greater than the unpaid portion of the-purchase money: Held, under the rule above stated and the circumstances of the case that the defendants in the Butler county judgment were entitled to have the same satisfied of record.</p>

181. Appeal of E. H. Adams, from a decree of said court discharging a rule to show cause why judgment should not be opened and the defendant be let into a defence. The following facts appeared from the records: On March 12th 1868, E. II. Adams executed to James L. Mortland a judgment note for $216, with W. D. Renick as surety. On January 8th 1879, judgment was entered on said nóte by virtue of the warrant contained therein, and execution issued.

<p>1. Upon a distribution of the proceeds of sale by au assignee of real and personal estate assigned by a debtor for the benefit of creditors, no one claiming adversely to the assignment can participate.</p> <p>2. A. died, leaving real and personal estate, which he devised and bequeathed to his wife for life. He also appointed her his executrix with power to sell his real and personal estate, and directed his debts to be paid. The widow engaged in business, and three years after the death of her husband (having filed no account as executrix), assigned all her real and personal estate to an assignee for the benefit of creditors. The assignee sold the same, and the purchaser of the real estate bought it, each under the mistaken belief that the entire fee-simple passed, and the purchaser paid full value therefor. The latter, discovering his mistake, within five years from the husband’s death, procured a conveyance from the widow, as executrix with power of sale, the nominal consideration recited in the deed being the sum ho had previously paid to her assignee for creditors. The assignee filed his account, which was confirmed without exception, and the balance was paid into the court of Common Pleas, and referred to an auditor for distribution. The fund was claimed on the one hand by the wife’s creditors, and on the other, by the creditors of the deceased husband, and the court, on exceptions to the auditor’s report, awarded the entire fund to the creditors of the deceased husband: Held, to be error. The fund represented only the proceeds of the wife’s assigned estate, whatever that may have been, and it was therefore distributable to her creditors alone. Held further, that the fact that the purchaser at the assignee’s sale subsequently procured the above mentioned deed from the widow as executrix, and the fact that in her account, afterwards filed in the Orphans’ Court, she charged herself with the nominal purchase money, were immaterial to the controversy over the fund for distribution.</p>

457. This was an action, brought originally before an alderman, by J. B. Grooms against Edward Campbell, et al., directors of the poor of Fayette county, to recover the value of services rendered by the plaintiff, a physician, to one Nichols.

22. This was an appeal by George W. Frick, from a decree of the said court, dismissing his exceptions to the report of an auditor distributing the proceeds of a sheriff’s sale of real estate, and confirming the report.

72. Mandamus, by the Commonwealth of Pennsylvania at the relation of John Manaway, against Daniel Kaine, et al., school directors and superintendent of the school district of the borough of Uniontown, commanding them to admit the relator’s minor son, Springer Brown Manaway, a colored boy, as a pupil in the public school, in the main school building known as No. 1., and proceed to determine into which grade or class of said school he should be admitted.

<p>1. In determining whether or not a testator has been of sound mind and disposing memory, the question is, were his mind and memory sufficiently sound to enable him to know and to understand the business in which be was engaged at the time when he executed the will?</p> <p>A man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposition he desires to make of it and of the persons and objects he desires shall be the recipients of his bounty. He must have memory, but the failure of memory is not sufficient to create the incapacity unless it be total or extend to his immediate family or property.</p> <p>2. A case should not be submitted to the jury when the evidence is so insufficient that the court would not sustain the verdict.</p> <p>The question of the sufficiency of evidence is for the court; unless that evidence be sufficient it is error to submit it to the jury.</p> <p>3. A man over one hundred years of age executed a will by which he devised his property, one-half to certain of his relatives, one-fourth to his legal adviser and one-fourth to a woman with whom he had lived for many years and who took care of him. He was blind and partly deaf. His memory was treacherous as to recent events; he would repeat the same thing several times, and slept almost constantly. In his prime his mental and physical vigor had been remarkable and he had been observant of the proprieties of life; while in old age bis vigor abated and he became extremely filthy in his habits. Some who had known him in the prime of life thought that he lacked testamentary capacity. Some time prior to the execution of his will he had made a somewhat similar disposition of his property by deed, which he revoked before executing his will. In a feigned issue of devisavit vel non to determine, inter alia, whether the alleged testator was or was not of sound and disposing miDd.</p> <p>Held, that there was no sufficient evidence to sustain the negative of the issue and the court was right in taking the question from the jury.</p> <p>4. When an alleged .testator is, by reason of age or other cause, of weak mind, though his weakness is not sufficient to create testamentary incapacity, the fact that a person whose advice has been sought and taken by the testator receives a large benefit under the alleged will raises a presumption of undue influence; and the burden rests on such beneficiary to rebut that presumption by affirmative evidence of mental capacity, and the absence of undue influence.</p> <p>5. The evidence in this case held to disclose no actual fraud or undue influence in procuring the will, but merely to warrant the submission to the jury of the question whether the legal adviser who drew up the will and received one-fourth of the estate devised by it, had proved that the alleged testator had a full understanding of the nature of the instrument and of the disposition of his property thereby made.</p> <p>6. The evidence in this case failing to disclose that the legal and confidential adviser had ever made any representation to the testator as to the value of his services, or requested compensation by a provision in the will: Held, that it was not error to refuse to charge that the devise to such adviser, was void if incommensurate with the services rendered.</p>

<p>Error to the Court of Common Pleas of Bwtler county: Of January Term 1882, No. 328.</p> <p>Assumpsit on the following promissory note, by W. J. Langfit, last indorser against John Pearce, a prior indorser.</p> <p>$1,000. New York, December 19th 1876.</p> <p>Ninety days after date I promise to pay to the order of Austin Pearce, One thousand dollars, at Ninth National Bank, New York. Value received.</p> <p>(Signed) D. P. Barnhart.</p> <p>(Indorsed) Austin Pearce. Elias Zeigler.</p> <p>John Pearce. W. C. Latchaw.</p> <p>W. J. Langfit.</p> <p>On the trial, before Bredin J., the following facts appeared: — The note was discounted for Austin Pearce, by the People’s Savings Bank of Allegheny City. The People’s Savings Bank sent the note to their correspondent at New York for collection, and on the day of its maturity, to wit, March 14th 1877, it was presented for payment at the Ninth National Bank, New York, when payment was refused and it was duly protested for non-payment. The note, protest and notices for all the indorsers were returned by mail to the People’s Savings Bank at Allegheny City, and the cashier at that institution, immediately on receiving the same, on the forenoon of either the 15th or 16th of March, 1877, ascertained from Austin Pearce the post-office address of the indorsers, enclosed the notices of protest in envelopes addressed to them respectively, duly stamped, and delivered said letters to thejjUnited States mail carrier, when he, while on his official route, came into the People’s Savings Bank to deliver and collect mail. The cashier testified that such was his usual course of business in mailing letters, viz: to give them to the carrier, and not to mail them at the post-office.</p> <p>The plaintiff afterwards, on March 27th 1877, paid the note to the People’s Savings Bank, by his check for $1,003.81 drawn against his account which he kept in said savings bank, and when his account was next balanced the note was retuxmed to him with his cancelled checks.</p> <p>The defendant denied having received notice of protest, and testified that the first knowledge he had that the note was not paid at maturity was when the writ in this case was served upon him.</p> <p>Austin Pearce testified, on behalf of the defendant, that learning from Dr. Langfit that the note had been returned from New York, unpaid, he called at the People’s Savings Bank, and paid the note either by a check or in money, he did not remember which, and left the note with the bank for collection from Barnhart the maker.</p> <p>It further appeared by the plaintiff’s testimony that a few days before the plaintiff gave his check to the People’s Savings Bank in payment of the note in suit, Austin Pearce gave plaintiff a note of one Abbott, for $2,000, which upon the plaintiff’s indorsement was discounted and the proceeds placed to plaintiff's credit in the People’s Savings Bank. The defendant claimed, therefore, that while the Barnhart note was paid by plaintiff’s cheek, yet it was really paid with the money of Austin Pearce, being the proceeds of the Abbott note. This Abbott note was not paid at maturity, and the plaintiff testified that he paid it, and afterwards finding it worthless, gave it to Austin Pearce for fifty cents. On January 29th 1878, Austin Pearce had a settlement with Langfit of the amount of his indebtedness to Langfit, fixing it at $1,100, for which he, Pearce, gave his note to Langfit, together with twenty-four shares of railroad stock as collateral thereto; this $1,100 note was not paid and the plaintiff, at the time of trial, held the same with the railroad stock as collateral, which stock the plaintiff, at Pearce’s request, in order to withdraw it from the reach of other creditors, had caused to be transferred to his own name.</p> <p>The defendant, to rebut this testimony, then recalled Austin Pearce, and made the following offer:—</p> <p>“ Defendants’ counsel offer to show by the witness on the stand in sur-rebuttal, that it is all true that he had an arrangement with Dr. Langfit, the plaintiff in this suit, by which these 24 shares of stock were held as collateral by the doctor for this $1,100 note from the 27th of March 1877, or from the time the stock was given to Dr. Langfit, up to about the 28th of August 1878, when on the 28th or about the of August 1878, a new arrangement was made in parol by which Dr. Langfit agreed that he would take these 24 shares of stock as absolute payment of the $1,100 note for which he had held them up to that time as collateral; that in pursuance thereof a transfer of them was made and signed in the hand-writing of the secretary of the company, endorsed on the certificates of stock, which were held and voted on by the plaintiff, from that day to the present time, received and were treated as absolute payment and satisfaction of this $1,100 note; this to contradict the plaintiff’s testimony in which he swears that this stock was held only as collateral and that he at no time received the stock as payment, and to show that he paid the note by a transfer of the stock.</p> <p>“Plaintiff’s counsel objects to this as not being sur-rebuttal but their case in chief.</p> <p>“By the court. We sustain the objection because the witness on the stand, when examined previously testified that he had paid the note by check or money and there is now an attempt to set up in sur-rebuttal a different position altogether, and to show payment by transfer of stock in a railroad company; a party cannot be permitted to change his position in that way; we reject the evidence; we think this is a change of front, and defendants cannot be permitted to do that; we sustain the objection and give an exception.”</p> <p>Counsel for defendant, in his address to the jury, in commenting on the improbability of plaintiff’s testimony, stated that it was over five hundred miles from New York, and that notices of non-payment and protest could not'be received in Allegheny City on the day after the note was protested. The court, in the charge, said: — “ The testimony of the cashier of the bank in Allegheny and Dr. Langfit is that within a day or two after the protest, the notices of protest for non-payment were received in Allegheny. The counsel for defendants has stated to the jury that it is absurd and has made some statements in regard to the distance from Pittsburgh to New York, that are probably entitled to correction. It is not over 500 miles. It is 444 miles. Perhaps some of the jurors know that as well as the court. There is no improbability in the notices Joeing received the day after the note was due. It is well known that a train leaving New York between five and six o’clock in the evening, if on time, would reach Pittsburgh the next morning at eight o’clock. Perhaps the counsel who made the statement has often come on that train. Then there is another train leaves the same night, that would get to Pittsburgh about one o’clock the next afternoon. So there is nothing improbable in the notices being received the next day. They may not have been received until the second day, but that does not matter. The question is not whether they were received on the first day or on the second day, but whether these notices were promptly sent by the persons in Allegheny to Pearce and Ziegler, the defendants here. . . . . If you believe Mr. Young’s statement that he did deliver these notices of non-payment, enclosed in envelopes properly stamped, to the United States mail carrier, that is sufficient evidence that the notices were sent. After being delivered to the mail carrier the plaintiff or the bank has no further responsibility. All they have to do is to show that they mailed the letters, enclosing the notices of non-payment. It is sufficient to show that was done. By handing them to the mail carrier it has the same effect as though taken to the post-office and put in the letter box. All that is required is to mail them. Where there is no mail carrier for that purpose they must be delivered at the post-office, to the postmaster or his clerk or put in the proper box, but in the cities, mail carriers deliver letters and collect them; therefore being handed to one of them, is the same as though delivered to the postmaster. He is an officer of the United States, and to hand the notices to him properly stamped and addressed, has the same effect as though handed to a clerk in the post-office . . . . Of course we could not allow the defendants to change front here and say one moment that Austin Pearce had paid the note by a check or cash and afterwards say he had paid it by a transfer of stock. After the plaintiff had closed his case Austin Pearce came on the stand to say he had paid it by a transfer of stock in the railroad company. That would be a kind of double dealing that could not be allowed.”</p> <p>Verdict for plaintiff, $1,276, and judgment thereon. The defendant took this writ of error, assigning for error the rejection of his offer of evidence as above, and the portions of the charge above quoted.</p>

<p>1. A deed (made prior to the Act of June 8th 1881, P. L. 84), purporting to be an absolute conveyance, maybe proved by parol evidence to be merely security for a debt or liability. The gran tor in such case may bring a bill in equity for a re-conveyance, or an action of ejectment, but each form of procedure is subject to the same equitable principles.</p> <p>2. In order to convert a deed absolute on its face into a mortgage by parol evidence, such evidence must be clear, explicit and unequivocal. Subsequent admissions and declarations of the alleged mortgagee only, are not sufficient ; an agreement must be proved which is substantially contemporaneous with the execution and delivery of the deed.</p> <p>3. On the trial of an action of ejectment founded on an equitable title, the judge must consider and weigh the facts for himself, and if the evidence does not make out a case which would induce a chancellor to decree a conveyance he should give the jury binding instructions to that effect.</p> <p>4. The evidence in this case held insufficient to warrant the court in submitting to the jury the question whether a deed absolute on its face was in reality a mortgage.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of July Term 1882, No. 66.</p> <p>This was an action of replevin by Wm. Gibson against J. II. Lenhart, receiver of the First National Bank of Meadville, for $9,000 coupon bonds of the Shenango and Allegheny Railroad Company dated April 1st 1869 and numbered as follows: Nos. 121, 604, 698 and 991 for $1,000 each and Nos. 925, 931, 987, 988, 989, 1081, 1082, 1083, 1084, 1086, 1087. Pleas non cepit in inodo et forma, property, and a special plea setting up property in one George Beringer.</p> <p>Upon the trial, before Church, P. J., Gibson, the plaintiff, proved that on April 20th 1878, he loaned to one Wm. Thorp $6,674.40, taking therefor his promissory noté payable one year after date. At the time of making this loan and as the condition on which it was made, Thorp gave Gibson the following agreement in writing.</p> <p>Jamestown, Pa., April 20th 1878.</p> <p>I have this day borrowed from Dr. William Gibson, and given him my note, payable one year from date, the sum of six thousand six hundred and seventy-four dollars and forty cents, due in one year, for which I am to deposit in the First National Bank of Meadville, nine thousand dollars, Shenango and Allegheny Railroad bonds, as collateral security for the payment of said note, and to send him a certificate of said deposit within ten days from this date. Wm. Thorp.</p> <p>Upon May 3rd 1878 Gibson received the following notice from the bank.</p> <p>C. A. Deriokson, President. Wm. Thorp, Vice President.</p> <p>R. W. Deriokson, Cashier.</p> <p> </p> <p>Dr. Wm. Gibson, Jamestown, Pa:</p> <p>Dear Sir: — Wm. Thorp has this day deposited in this Bank nine thousand dollars in bonds of the Shenango and Allegheny Railroad Company, tobe held as security for the payment to you of his note for six thousand six hundred and seventy-four dollars and forty cents, dated April 20th 1878, due in one year from that date. Wm. Thorp has reserved the right of taking the coupons from the above mentioned bonds, as they become due. Yours truly, R. W. Deriokson.</p> <p>The bonds were all in the same form, and of the character known as railroad coupon bonds; one bond was put in evidence as a sample of the rest, but it was not printed with the record.</p> <p>Gibson did not call at the bank or demand the bonds until November 13th 1879 — Thorp having failed and made an assign-merit for the benefit of his creditors onNovember 12th 1879. The plaintiff was then informed by the President that the bonds Avere in the vault, and would be delivered to him upon the surrender of the certificate of deposit. The plaintiff called at the bank several times afterAvards, but as he had mislaid the required certificate the bonds Avere not given up. At one of these visits an envelope was shown him endorsed “Dr William Gibson $9,000 bonds Shenango and Allegheny Railroad Co.” and he was informed that his bonds Avere there. Coupons as they became due Avere cashed to the amount of $315 and this sum marked “ the property of Dr. William Gibson ” was placed in the envelope with the bonds.</p> <p>On June 3d 1880 the bank failed and an agent of the government named Young took possession as temporary receiver, until J. II. Lenhart, the defendant, was duly appointed as such and took possession on June 30th 1880. Gibson called on Young at the bank who took out the bonds and the $315 in money Avhich last he paid, and offered Gibson the bonds if he would show the certificate of deposit. Gibson did not find the certificate until after this suit was brought.</p> <p>The defendant shoAved that on September 20th 1877, one Win. Reynolds together with Thorp executed to George Beringer their promissory note for $15,000 payable two years after date for which they deposited as collateral with the First National Bank $20,000 of Shenango and Allegheny coupon bonds. The bank issued the following certificate of deposit therefor:</p> <p>Received, September 21st 1877, of Wm. Thorp the folkming bonds: Nos. 121 and 504, of one thousand dollars each; also Nos. 987, 989, 994, 988, 1081, 1087, 1084, 1082, 1088, 1086, 1085, and 1083, of five hundred dollars each of the Shenango and Allegheny Railroad bonds; also received of William Reynolds twelve bonds of one thousand dollars each of Shenango and Allegheny Railroad bonds, to be held by us in accordance with the terms of the deposit and trust hereto annexed — said bonds of Mr. Reynolds are Nos. 420, 701, 702, 125, 127, 126, 135, 703, 144, 362, 418, 419.</p> <p>R. W. Derickson,</p> <p>Cashier First Nat. Bank, Meadville.</p> <p>[The bonds corresponding to the numbers in heavy-faced figures being included among those pledged to the plaintiff.]</p> <p>The papers relating to this transaction Avere not discovered by the receiver until after the demand had been made by Gibson. lie then on examination found that $6,500 of the bonds were also included in those pledged to Beringer.</p> <p>The defendant then offered to prove by Reynolds “ that he went into the First National Bank of Meadville, and had a conversation'with the president of the bank since deceased, that he inquired about the collaterals on tlie Beiiuger note, after the failure of William Thorp; that the package of bonds, or the envelope containing the bonds, was produced; that the president of the bank then stated to witness that he had put the bonds in this envelope without knowledge of the contract of hypothecation to Beringer, but on the representation of Dr. Gibson that the bonds belonged to him as collateral security. That the president put the bonds in the envelope long after the alleged hypothecation to Beringer, on the strength of the statement of Dr. Gibson ; that the bonds were hypothecated to him as collateral security for his debt.”</p> <p>The plaintiff having objected to this offer:—</p> <p>By the Court. “We sustain the objection in part. We will allow the witness to state the fact (if it exist) if he received information, what the information was from the president of the bank, in which the custody of the bonds in controversy was placed, which information is alleged to have been given at the time the bonds were in the custody of the president of the bank, as to the time and manner in which they came into the custody of the envelope endorsed with this plaintiff’s name, and under which the plaintiff claims.” Exception. (1st assignment of error.)</p> <p>The plaintiff requested the court to charge as follows :</p> <p>1. The bonds involved in this controversy are railroad bonds, payable to bearer; and if they were negotiated to plaintiff as collateral security for a loan of money made by him to Thorp, at the time, and that he had no knowledge that another than Thorp claimed property in them, then he is a bona fide holder for value in the usual course of business, and the verdict should be in his favor.</p> <p>Answer. “ Defused under the circumstances of the case.” (2d assignment of error.)</p> <p>2. If the jury find that Mr. Thorp, at the time he contracted for the loan with Dr. Gibson, agreed to deposit in the First National Bank of Meadville, $9,000 of the Shenango and Allegheny Bailroad bonds, as collateral security for the payment of said loan, and that within a reasonable time thereafter Gibson received from the cashier of said bank a certificate that Mr. Thorp had deposited the bonds in the bank, as per agreement, and that the bonds in controversy $9,000 in amount, were subsequently found in the bank, enclosed in an envelope, with the name of Dr. Gibson endorsed thereon, and their being no evidence of anything wrong or mala fides on his part, the verdict should be for plaintiff.</p> <p>Answer. “ Defused under the circumstances and evidence in the case, and in the view the court takes of the same.” (3d assignment of error.)</p> <p>The court charged, inter alia, as follows:</p> <p>“ We say to you that the First National Bank of Meadville was the custodian of the pledgee, and pledgor of the original package of bonds in 1877, and they had no right (and the presumption, so far as the evidence in this ease is concerned, they did not exercise the right) to take the bonds pledged to George Bei’inger and pledge them to Dr. Gibson; and so far as the latter sets up the title as being a bona fide purchaser for value, we say to you he is not such a bona fide purchaser for value as to entitle him to recover these bonds. PIo never had actual possession of them. The First National Bank was a mere baillee for him as a pledgee, and the bailee for Beringer, the former pledgee. Hence .... his pledge being prior in point of time, he is entitled to hold $6,500 of those bonds, that amount being identified by their witnesses, as against the subsequent bailment, or, rather, as against the bailment or pledge, such as this plaintiff claims in this case, hence there is nothing to leave to you as a fact to be found.” (5th assignment of error.)</p> <p>The jury under the binding instructions of the court found a verdict for the defendant for Shenango and Allegheny Railroad bonds No. 504, of one thousand dollars; No. 121, of one thousand dollars; No. 1083, of five hundred dollars; No. 1087 of five hundred dollars; No. 1086, of five hundred dollars; No. 1084, of five hundred dollars; No. 1082, of five hundred dollars ; No. 1081, of five hundred dollars ; No. 989, of five hundred dollars; No. 987, of five hundred dollars; No. 988, of five hundred dollars. And for the plaintiff for Shenango and Allegheny Railroad bonds as follows: No. 791, of five hundred dollars ; No. 931, of five hundred dollars ; No. 925, of five hundred dollars ; and No. 968, of one thousand dollars. ,</p> <p>On which verdict judgment was duly entered.</p> <p>Whereupon plaintiff took this writ assigning for error, inter alia, the admission of Reynolds’s testimony, the answers of the court to plaintiff’s points and the charge of the court to the jury as above noted.</p>

<p>Error to the Court of Common Pleas of Mercer county: Of July Term 1882, No. 133.</p> <p>_ Case stated, wherein the county of Mercer was plaintiff and Thiel College of the Evangelical Lutheran Church defendant/ setting forth the following facts:</p> <p>Thiel College is an institution of learning incorporated by Act of April 14th 1870 and its supplement with power to take and hold real and personal estate by gift or purchase not-exceeding in yearly income $50,000, the management of which is lodged in a board of trastees appointed by the Pittsburgh Synod of the Evangelical Lutheran Church. In or about the year 1871 it acquired by gift and purchase fifty-five acres of land, in Mercer county, in one compact body, on which the corporation has erected certain buildings for educational purposes and dormitories, &c., and also a barn for farm purposes, and the corporation contemplates, in the immediate future, the erection of other buildings appropriate to college uses. In connection with the farm the corporation owns a horse and two cows.</p> <p>It has been and is one of the chief objects of the institution to furnish an education to the youth.of both sexes at as reasonable a rate as possible, and for this purpose they have provided ánd are keeping a boarding hall, where the students are furnished with, boarding at as low a figure as possible; and fur the purpose of encouragihg habits of industry as well as promoting the health of the students, and for the further purpose of enabling indigent students to obtain an education, those who desire it are allowed to work certain hours in the day on the college grounds under the direction of the superintendent, and are allowed a reasonable compensation for their labor, and everything that is so raised on the grounds is used and consumed in or for the support of the boarding hall. Under the present and future plans of the institution, all the said fifty-five acres of land are necessary for the purposes contemplated, and were donated or purchased and are held for such purposes only. The institution was originally founded and endowed by a donation of A. Louis Thiel, said endowment being by the instrument of donation and the supplement to the charter, mainly devoted to the endowment of a professorship of the German language and literature. Subsequently other liberal donations and collections were made for the benefit of the institution, which is open to all students of both sexes without qualification or limitation other than good moral character.</p> <p>The county of Mercer has caused to be levied for the year 1881, for county purposes, a tax of $12.54, assessed on said horse, two cows and thirty-seven and one-half acres of the land above mentioned.</p> <p>If the court shall be of the opinion, under the facts stated, that the defendant corporation is liable - for said tax, judgment to be entered for plaintiff; if not so liable, then judgment for defendant for costs, either party to have the right to sue out a writ of error.</p> <p>The court entered judgment for the plaintiff on the case stated. MgDermitt, P. J., filing the following opinion:— Prima jfacie, all property is taxable; and its owners, claiming exemption from taxation, must affirmatively show that their property is not liable thereto. The charter of this college enables it to receive charities, but imposes no liability on it to bestow any upon the public. Its students pay for their tuition in labor or money; and, in their admission, it has an unlimited discretion. It is compelled to receive no students against its own wishes. It can convert into money the very land, it seeks exemption from the payment of taxes on, and convert the same to its own corporate use. It may do so of all its property, save the college fund. . -</p> <p>Legally speaking, the only endowment it has, is the Thiel fund, whatever it is; and even its object is only to establish á German professorship. It is not admitted that any student can claim, and have his claim enforced by the courts, to receive gratuitously instruction in German.</p> <p>In no just legal sense can this college be said to have been “ founded, endowed or maintained by public or private charity,” so as to exempt its property under the Act of 14th May 1874, from taxation: Delaware County Institute of Science v. Delaware County, 13 Norris 163.</p> <p>With the exception of said Thiel bequest for the endowment of said German professorship, the property of the defendant corporation is as exclusively its own and as exclusively subject to its own control, management and disposition as is any mere individual’s farm. Tested by the case cited, the defendant is not, under the admitted facts, “a purely public charity;” and the property described in this stated case is, therefore, liable to taxation.</p> <p>The facts connected with this case are not so fully stated as they should be. It is admitted the college owns fifty-five acres of land, but it is not stated whether the necessary college buildings, now erected and those in contemplation of erection, are on the thirty-seven and one-half acres of land mentioned in this case, or whether they are on the remaining part of the land. Nor is it stated whether the remaining seventeen and one-half acres are taxed or not. I infer the buildings are on the latter piece or part of the land, and I infer, also, that it is not taxed. In a case stated, all the facts must be distinctly set forth, and nothing left to inference; what is not so stated, is deemed as not existing: Berks County v. Pile, 6 H. 493; Diehl v. Ihrie, 3 Wh. 143; Philadelphia & Reading R. R. Co. v. Waterman, 4 P. F. Smith 337.</p> <p>Again: it should have been admitted how many acres were necessary for college buildings proper — and the necessary playgrounds for the children and students. At first, I thought of referring the case to have the facts more fully and distinctly admitted, but taking into consideration the charter, and the facts admitted, I do not see how it is possible to so fully state the facts as to make this college “ a purely public charity;” and, therefore, such reference would only result in unnecessary and useless delay.</p> <p>And now, 16th May 1882, judgment is entered on this stated ease in favor of the plaintiff, and for the sum of twelve 54-100 dollars.</p> <p>The defendant took this writ of error assigning for error the judgment for plaintiff on the case stated.</p>

<p>Appeal from the Orphans’ Court of Mercer county: Of July Term 1882, No. 47.</p> <p>This was an appeal, by Ephraim Ludwig, a son of Abraham Ludwig, deceased, from a decree of said court dismissing his exceptions to an appraisement of $300 worth of personal property of the decedent, and the setting apart the same for the use of Eva Ludwig, decedent’s widow.</p> <p>Abraham Lridwig died intestate November 25th 1881, seised and possessed of real and personal estate valued at over $28,000, leaving to survive him a widow, Eva Ludwig, and eleven children by a former wife, including the appellant. Letters of administration were grauted on his estate, to Francis Ludwig, who, in January 1882, at the request of the widow, appointed appraisers, who appraised and set apart $300 worth of. personal property for the widow.</p> <p>Ephraim Ludwig, and others of the children of tire decedent, filed exceptions to said appraisement, on the ground that by an ante-nuptial agreement the widow was not entitled to said prope_ rty.</p> <p>_ Depositions were taken, which showed .the following fact: In the year 1867, Abraham Ludwig, being fifty-seven years of age, a widower, and the father, of eleven adult children, proposed marriage to Mrs. Eva Riekert, a widow of sixty-three years of age, and thereupon the following ante-nuptial contract was executed by himself and Mrs. Rickert viz:</p> <p>“Article of agreement, made this-first day of July, 1867, between Abraham Ludwig, of West Salem township, Mercer county, and State of Pennsylvania, of the first part, and Eva Rickert, of Hempfield township, same county and State, of the second part, as follows, to wit:</p> <p>Whereas, the said Abraham Ludwig is seised of certain lands and tenements situated in said county of Mercer, also personal property in said county; and, whereas a marriage is shortly intended to be had and solemnized between the said Abraham Ludwig and said Eva Rickert, it is therefore covenanted and agreed by and between the said parties to these presents in manner and form following: That the said Abraham Ludwig, for himself, his heirs, executors and administrators, doth Covenant and agree to and with the said Eva Riekert, her executors and administrators, in case the said intended marriage shall be had and solemnized that he, the said Abraham Ludwig, will give and furnish the said Eva Rickert a good and comfortable support in health and in sickness for and during her life, and at her death furnish, her with, a decent and Christian burial. And the said Eva Rickert, for herself, her heirs, executors and administrators, agrees to and with the said Abraham Ludwig, his executors and administrators, and does, in case said intended marriage shall be had and solemnized, hereby for and in consideration of the covenant and agreement aforesaid, as of the further sum of one dollar to her in hand paid by the said Abraham Ludwig, hath granted, remised and released, and forever quit claimed, and by these presents doth fully and absolutely grant, remise, release and forever, quit claim all dower, and thirds, and right and title of dower and thirds, and all the right, title, interest, claim and demand whatsoever in law or equity of her, the said Eva Rickert, that she may acquire in the,real and personal estate of the said Abraham Ludwig, in case the said intended marriage shall be had and solemnized, so that neither she, the said Eva Rickert, her heirs, executors or administrators, nor any other person or persons for them, or any of them, shall have, claim, challenge, or demand, or pretend to have claim, challenge or demand any dower or thirds, or any other right, title, claim or demand of, into, or to the said real or personal estate of the said Abraham Ludwig, but thereof and therefrom shall, be utterly debarred and excluded forever by these presents.</p> <p>“In witness whereof the parties have hereunto set their hands and seals the day and year first above written.</p> <p> </p> <p>Acknowledged same day before Wrn. Buck.</p> <p>(Becorded 8th day of Dec. 1881, in Article Book “ II,” page 236.)</p> <p>The intended marriage was solemnized three days after the date of the above contract. At this time Mr. Ludwig’s real and personal estate exceeded in value $14,000.</p> <p>The contract was drawn by Judge William Maxwell, who testified that the parties were present when he; wrote it; that he read it to them before it was executed, and said to Mrs. Bickdrt: “Now, if you sign this, you get nothing from Mr. Ludwig’s estate except your keeping and your decent Christian burial. I want you to understand what you are doing, for Mr. Ludwig has a large property — r-how much I don’t know — but whatever it is, you will have no interest in it at his death — that is what the paper says. She replied te mo, that ‘she understood it.’” The paper was then executed, and acknowledged before Esquire ’Buck. It was left in Judge Maxwell’s possession, and was not recorded until after Mr. Ludwig’s death.</p> <p>It was admitted: that from the time of their marriage in 1867 until Mr. Ludwig’s death in 1881, he acted as a kind and affectionate husband, providing for all her wants. At Mr. Ludwig’s death his children arranged for her to continue to live in the same house, and provided sustenance and attendance for her. After remaining there about two months, she left the place — as she testified “because she did not want to stay there” — and went to live with her son-in-law, and requested the appraisement to be made in her favor.</p> <p>On behalf of Mrs. Ludwig, witnesses testified that in 1867 she had no education in the English language, and could not read or write, and that she could only have understood the effect of the contract, in case it had been very fully explained to her; she could understand and speak English in ordinary conversation. There was no evidence that the amount of Mr. Ludwig’s property was made known to her, prior to her. executing the contract, other than the testimony of Judge Maxwell, above quoted. There was no evidence that at that time Mrs. Rickert had any property, or any means of support.</p> <p>Upon the foregoing facts the court entered a decree overruling the exceptions, and confirming the appraisement, McDermitt, P. J., filing an opinion in which he said, inter alia:</p> <p>"To call a contract between betrothed husband and wife, where his financial circumstances are not shown to have been fully explained to lier, and which only gives her, as his widow, one dollar in lieu of her interest in his estate under the intestate laws, an ‘ante-nuptial settlement’ is a travesty on that legal term. In my opinion the provision secured to the wife by this so-called. marriage settlement was manifestly unreasonable and disproportionate to the means of the intended husband, and it therefore raises a presumption of intended concealment and throws upon them (the exceptants) the burden of disproving that presumption. And when such presumption so arises, we cannot, in the absence of satisfactory evidence showing that the decedent made a full statement to her of all the property he owned or the sum he was worth, presume, she would have accepted one dollar in addition to a good and comfortable support in health and in sickijess for and during her life and at her death a Christian funeral, had she been fully and truthfully informed as to his circumstances.</p> <p>“ The exceptants are invoking the aid of a court of equity to enforce the specific performance of this marriage settlement, but as he under whom they claim to have this done did not himself do equity to his intended and betrothed wife, such specific performance will not be decreed.”</p> <p>Ephraim Ludwig thereupon took this appeal, assigning for error, inter alia, the portion of the opinion of the court above quoted, and the decree confirming the appraisement. .</p>

<p>1. Where, after judgment, execution and levy, the court grants a rule “ to show cause why the judgment should not be opened, and tire defendant be let into a defence, all proceedings to be stayed in the meantime, lien of levy to remain,” the fact that nearly four years elapsed before the discharge of the rule, will not affect the lien of the levy, so as to give priority to subsequent execution creditors who had levied on the same goods.</p> <p>2. Upon the granting of a rule to open judgment, after a levy has been made thereunder, the lien of such levy is preserved, pending such rule, by operation of law. A fortiori will the lien be preserved where it has been specially so directed in the order granting the rule.</p> <p>3. An indorsement on a fi. fa., signed by the sheriff and his deputy, certifying that by virtue of the within writ he had levied on certain personal property, describing it, though undated, is a valid levy, where, it sufficiently appears from other dated indorsements by the sheriff on the writ, and from entries on the record, that the date of the levy was within a certain period, not exceeding thirteen days.</p>

<p>The purchaser of a judgment received, together with an assignment thereof indorsed upon the back of an exemplification of the record of said judgment, the following instrument, also indorsed on said exemplification of record: — “For value received I guarantee the collection of the within amount, and I authorize any attorney or protbonotary to enter judgment against me for the within amount.”</p> <p>Held, 1. The indorsement must be read in connection with the record to which it referred, and the latter being certain as to all the particulars of the judgment, the indorsement was thereby rendered certain.</p> <p>2. Although the guaranty was a collateral obligation, judgment could be entered thereon without first showing unsuccessful efforts to collect from the principal debtor, though execution might be stayed until such proof were made.</p> <p>3. The warrant of attorney expressed in the above terms was valid to authorize any attorney at law to confess judgment against the maker in the proper court, for the amount of the guaranteed judgment, and to authorize the prothonotary to enter such judgment.</p>

<p>Appeal from the Court of Common Pleas of Crawford county: Of January Term 1882, No. 279.</p> <p>Appeal of William McNaughton and others, creditors of the firm of Kingsland & Reynolds, from a decree of said court, distributing the proceeds of a sheriff’s sale of the personal property of said firm.</p> <p>The Auditor appointed to distribute the fund found the facts to be as follows: In the winter of 1880-1881 J. S. Reynolds went to Titusville, Crawford county, where he proposed to carry on the grocery business. He asked A. P. Bennett, an acquaintance, to advance him money for this object. Bennett agreed to do so, and on March 3rd 1881, Reynolds drew a note to Bennett’s order for $1,200, which the latter endorsed, and the Second National Bank discounted.</p> <p>On the last day of February 1881, Reynolds and W. W. Kingsland agreed verbally, to enter into copartnership in the grocery business, and to buy out the stock of groceries owned by one John Besanson. Under the agreement Reynolds was to furnish the capital from the start, some $1,500 or over, and Kingsland was to pay Reynolds interest on the money he put in the business, in excess of any that Kingsland should put in; and Kingsland was to devote his time and labor to the business and receive half the profits. The arrangement between Bennett and Reynolds, was made before any agreement in reference to a partnership was entered into between Kingsland and Reynolds.</p> <p>With the $1,200 procured from the bank, Reynolds paid Besanson $780 for his goods and afterwards bought with the-balance other goods for the store.</p> <p>On May 6th 1881, when the note became due at the bank, it was renewed by another note drawn by Reynolds individually, and endorsed by Bennett. On May 18th 1881, in consideration of the surrender of the note of May 6th, Reynolds gave the bank a judgment note for $1,200 payable the next day, signed by him in the firm name of Kingsland & Reynolds, and also by himself individually. On this note the bank entered judgment May 20th 1881, issued execution and levied upon the defendants’, Kingsland & Reynolds, stock of groceries on May 21st 1881; On same day, after the levy, Kingsland, the other co-partner, executed judgment notes in the name of the firm, and judgments were entered upon them in behalf of all the other execution creditors, and same stock of groceries levied on same day, 21st May 1881. On these latter writs the goods were advertised and finally sold by the sheriff for $916.25.</p> <p>On May 23rd 1881, on application of Kingsland a rule was granted by the court to show cause why the judgment of the Second National Bank should not be opened as to Kingsland, and the proceedings stayed, which rule, after argument, was discharged.</p> <p>The firm having made an assignment, the bank claimed the entire fund, while the other judgment creditors contended -that although the judgment of the bank was prior to theirs, yet it was upon the individual indebtedness of Reynolds, and couldi. not be satisfied from the proceeds of a sheriff’s sale of the firm property.</p> <p>The Auditor reported in favor of the creditors, finding as a fact, that the judgment of the bank was founded on an individual debt of Reynolds, and awarded the fund: First, to the execution creditors, as to whom there was no doubt, in regard to their being firm creditors; Second, to the assignee for the benefit of the general creditors of the firm.</p> <p>Upon exceptions filed to this report on behalf of the bank, the court reversed the finding and award of the auditor, and decided that the bank judgment was upon a firm debt, and entered a decree awarding the entire proceeds of the sheriff's sale to the bank.</p> <p>Whereupon, McNaughton, the other judgment creditors and the assignee, took this appeal, assigning for error the decree of the court; and its action in sustaining the following exception to the auditor’s report:</p> <p>“ The auditor erred in undertaking to set aside a judgment that had already been passed upon by the court and decided to be good against the firm, viz: the judgment of the Second National Rank of Titusville, Pa. v. Kingsland & Reynolds, and J. S. Reynolds, No. 25, September 1881, Ex. D.”</p>

<p>Error to the court of Common Pleas of Mercer county: Of January Term 1882, No. 446.</p> <p>This was an action on the case brought by William F. Johnson against the Erie and Pittsburgh Railroad Company to recover damages for the non-fulfillment of an alleged contract made with him by the defendants to maintain fences along that portion of their road running through plaintiff’s farm.</p> <p>On the trial, before McDermitt, P. J., the following facts appeared: In 1856 the Erie and North Eastern Railroad Company was incorporated, and under its Act of incorporation proceeded to complete the construction of a railroad, between certain points, which had been commenced by a previously existing company. This road passed through the plaintiff’s farm in Crawford county, and upon his failure to agree with the company as to the amount of damage sustained by him in consequence thereof, viewers were appointed by the court, who on February 20th 1857 awarded him $178 damages. To this award no exceptions were filed, and it was duly confirmed by the court and the money paid to plaintiff.</p> <p>The Erie and Pittsburgh Railroad Company, defendants, were incorporated by the Act of April 1st 1858 (P. L. 511) which authorized the transfer to them of the right of way of the Erie and North Eastern R. R. Co. and provided that payment for the same should be made in stock of the former company.</p> <p>The plaintiff claimed that subsequent to the proceedings for the assessment of damages, sustained by him, there was a verbal agreement between him and the officers of the defendant company, that the company would build and maintain fences along the line of their road, through his property, and that they kept their agreement from the building of the road in 1859 or 1860 until 1877, at which time they refused to continue it.</p> <p>The defendants, on the other hand, claimed that the agreement was not made with them, but with the Erie and North Eastern R. R. Co. in 1857 before the granting of defendants’ charter, and that therefore they were not bound by it.</p> <p>Plaintiff offered evidence to show the difference in the market value of his farm, with the covenant on the part of the railroad company performed, and with it not performed. Objected to. Objection overruled. Exception. (Second assignment of error.)</p> <p>Plaintiff requested the court to instruct the jury that the proper measure of damages, for failure of the company to perform the contract, was as stated in the above offer.</p> <p>Answer. “ Upon a breach of the contract of defendant to keep and maintain a good and substantial fence on both sides of the line of its road through plaintiff’s farm, the measure of damages for such breach is what it would cost to build, keep and maintain perpetually a good, substantial fence on both sides of defendants’ railroad through plaintiff’s farm, a length of about 280 rods, if you believe the evidence on that point. In arriving at such measure, it would be a safe rule to capitalize the annual expense; that is to say, what gross sum would produce annually the amount it would cost annually to maintain and keep in repair the fence in question. The difference in the market value of plaintiff’s whole farm of 218 acres, with the alleged contract enforced, and with it abrogated, is not the measure of damages for the breach of this alleged contract.”</p> <p>The court further charged the jury, inter alia, as follows:</p> <p>“ It is important that you, in the investigation of this case, should endeavor to fix the date, as nearly as possible, of the alleged agreement, as testified to by Dr. Gibson, whose deposition was read in your hearing, and by the plaintiff and William McArthur, the only witnesses upon the part of the plaintiff who testify to the agreement. It is quite important that you should fix this date, for the reason that this suit was brought against the Erie and Pittsburgh Railroad Company, and the Erie and Pittsburgh Railroad Company was not incorporated until by an Act of Assembly approved April 1st 1858. How long after the passage of this Act the Railroad Company actually was incorporated — that is, the stock subscribed, directors elected, and the preliminary proceedings gone through to make it a living corporation — we do not know.....I have given you a detailed statement of these transactions for the purpose of calling your attention to the fact that it is of a great deal of importance whether the agreement testified to by Johnson, Gibson and McArthur was in 1857 or 1858, instructing you that if it was in 1857 these defendants are not bound by the alleged promise.....[Thus much for the purpose of calling your attention to what is an important element in this case; that is, whether the contract was made in 1857 or 1858. If it was made in 1857 it must have been made by some other corporation than the Erie and Pittsburgh Railroad Company. If it was made 1857 and they were making a line for themselves, then it must have been made (if we take the evidence on the part of the plaintiff to be correct) with the directors for the present company.]” (First assignment of error.)</p> <p>Verdict for plaintiff in the sum of $2,000 and judgment thereon. Thereupon defendants took this writ of error, assigning for error the admission of the evidence as above, and that portion of the charge above quoted within brackets.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of January Term 1882, No. 308.</p> <p>Ejectment, by James Hull against John Phillips to recover two hundred and fifty acres of land in West Shenango township, Crawford county.</p> <p>At the trial, before Church, P. J., the following facts appeared : — The title to the property in question was in Hull up to February 1879. About January 1st of the same year, Phillips, who held or represented judgments against Hull to the amount of $11,000, at the latter’s request, went to see him in order to arrange for securing this indebtedness, there being also other small judgments against Hull. At this interview it was agreed that the property should be sold at sheriff’s sale, and that Phillips should buy it, taking the deed in his own name, so that it might be sold afterwards in small parcels, or to the best advantage possible, and that Hull could retain anything left after paying the judgments.</p> <p>By him it was alleged that Phillips agreed to sell the farm at sheriff’s sale, purchase it for about $11,000 and allow Hull to remain on the place until he could sell it at private sale; that Phillips accordingly issued execution and the farm was advertised for sale in February 1879; but shortly before the sale Richard and Luther Mullen, who were later judgment creditors to the extent of about five or six hundred dollars, met Phillips by appointment at Hull's house and offered to give $13,000 for the farm, and upon being told that it was worth much more said they would attend the sheriff’s sale and buy it there; that Phillips then told them he wanted to save the place for Hull, and would give them $100 out of his own pocket, and that Hull and his wife would give them $100 worth of corn if they would stay away from the sale. The Mullens did therefore stay away from the sale, and Phillips bought the farm for $4,000, and when Hull remonstrated with him for bidding it in so low, he said it would make no difference in their arrangement but would save sheriff’s percentage; and finally that Phillips soon began to exercise control over the farm denying any right thereto to Hull, to whom he gave formal notice to leave about a year after the sale, and took possession of the farm himself, soon after-wards reviving his judgment and claiming that Hull was still indebted to him. Hull therefore brought this action against Phillips alleging fraud by the latter in offering the Mullens $100 to stay away from the sale, and in purchasing the farm for only $4,000.</p> <p>Phillips, on the other hand claimed, that by the agreement he was to bid in the farm, as low as possible to save costs, and give Hull one year in which to find a purchaser for a sum in excess of $11,000, when the former was to convey, take out the money due him, and give Hull the balance. Phillips further alleged that he allowed Hull to remain on the farm for one year, without finding a purchaser, and then continued the time for six months longer, when, upon Hull’s failure either to fine a purchaser in a year and a half, or to pay anything on the judgment, Phillips notified him to leave the farm; but that he was ready and willing, at anytime, to reconvey the same to Hull, or some one designated by him, upon payment of the sum due on the judgments.</p> <p>The defendant submitted inter alia the following points.</p> <p>1. “ That if the jury believe from the evidence that there was an agreement in parol between John Phillips, the purchaser and James Hull, the defendant in the execution, that the purchase of the property should be for the benefit of the latter upon certain terms, a representation of the fact made before the sale in the presence of the defendant would not vitiate the purchase, even though it should cause the property to be sold below its actual value.</p> <p>Answer. This point is affirmed, if there were no more in the case than the facts therein assumed and stated.</p> <p>2. “ That the effect of such agreement and representation as mentioned in first point could not go farther than to make John Phillips a trustee for James Hull, and no recovery in this case can be had against the defendant without reimbursement of the amount paid by him, and the amount held by him as a judgment creditor of said plaintiff, and there being no reimbursement or offer to do so in this case, the plaintiff can not recover.</p> <p>Answer. This point is true, if there were no more in the case, but that there is more is claimed by the plaintiff, and it is for you to determine. lie has given evidence upon the subject, and he claims upon a different theory than contemplated by the point and its predecessor.”</p> <p>10. That even if the jury find from the evidence that Phillips offered Luther Mullen $100 to induce him to stay away from the sheriff’s sale, and that the offer was made in the presence and with the knowledge of Hull, and that Hull made no objections thereto, but was satisfied with the arrangement, and still desired Phillips to buy the farm under the previous agreement, it was not such a fraud upon Hull as to avoid the sale.</p> <p>Answer. This is refused under the evidence in this case.</p> <p>11. That under the law and all the evidence in the case the verdict should be for the defendant.</p> <p>Answer. Refused.</p> <p>Verdict for plaintiff, and judgment thereon, whereupon the defendant took this writ of error, assigning for error the answers to his points as above stated.</p>

52. Case stated, dated March 20th 1882, wherein the city of Meadville was plaintiff and the county of Crawford defendant, as follows:— “ The city of Meadville, under an agreement with the county of Crawford, paid the expenses of the last February city and ward elections held in the city of Meadville, amounting to the sum of $88.71.

<p>1. The bondholders and stockholders of a railroad company may unite for the purchase of the property, at a sale made in good faith, to prevent a sacrifice thereof.</p> <p>2. In May 1874, the O. C. & A. Riv. R. Co. defaulted in the payment of interest on its bonded indebtedness. A receiver was placed in possession of its property and proceedings begun which resulted in a decree of sale September 18th 1875. Tire sale was made and duly confirmed January 6th 1876. Prior to this sale an agreement had been entered into, setting forth that for the protection of their several interests, the parties thereto should unite to buy in the property, and for that purpose should divide themselves into three classes — bondholders, stockholders, and creditors. The bondholders were to receive bonds in the new company, dollar for dollar; the stockholders were to receive share for share; and the creditors who would consent to sign were to receive deferred income bonds at par, for the amount of their debts. The stockholders and creditors wore to pay into the common treasury an amount sufficient to defray the expenses of the foreclosure and sale, and the reorganization. All the bondholders, except a very small proportion, signed the agreement; all th.e stockholders; and all the creditors except the complainant.</p> <p>The agreement was carried out, the railroad and franchises bought in, and a new company organized. A certain judgment creditor of the old company, who had not become a party to the agreement, thereupon filed a bill against the new company, praying that it be decreed to pay him the amount of his judgment.</p> <p>Held, that there was nothing in the agreement which was illegal, or fraudulent, or sufficient to render the sale, otherwise conceded to be á valid discharge of complainant’s claim, a fraud as to complainant; or to establish a constructive trust on the part of the new corporation, for the discharge of the liabilities of the old.</p> <p>Held, therefore, that the bill should be dismissed.</p>

<p>1. To a writ of foreign, attachment issued against goods in a store the sheriff made return that he at a certain time went to the store and there declared in the presence of A. & B., two credible witnesses of the neighborhood that he attached the stock of goods therein as the property of the defendant and made known the contents of the writ to C. & D., who had charge and possession of the store and stock of goods, and served each, of them as garnishees by reading the writ to them.</p> <p>Held, 1. In a contest between the plaintiff in the attachment and subsequent execution creditors that tlie return was sufficient and that tlie attaching creditor, who subsequently obtained judgment, was entitled to: the fund produced by the sale.</p> <p>2. That the sheriff need not insert in his returq that clause of § 50 of the Act of June 13th 1836, which provides that if the goods attached are “ susceptible of seizure of manual occupation the officer shall proceed to secure the same to answer and abide the judgment of the court in. tlie case, unless the person having the possession thereof will give security therefor.” These wordsare but a declaration of the sheriff's responsibility in the reference to the custody of the goods attached. They are not directory but descriptive.</p> <p>2. The writ of foreign attachment being served as above stated, the sheriff added to his return to subsequent writs of fi. fa. after the description of the levies the words “being the same property attached by me as the property of A., by virtue of a writ of foreign attachment issued at the suit of B., the time and manner of service being stated in full by my return to said writ”: Held, that this recital bound both the sheriff and his privies, the execution creditors, and subordinated their writs to the previous attachment.</p>

<p>Error to the Court of Common Pleas of Erie county: Of January Term 1883, No. 86.</p> <p>Replevin, by Joseph E. Hall, against G. W. Weed and Philip Hoffman, for a house which had been removed from a certain lot, and at the time the writ issued was in the highway. The defendant Weed gave bond and retained the house. Plea, riot guilty, and ownership.</p> <p>On the trial, before Galbraith, P. J., the following facts appeared — In 1873, the plaintiff, Hall, being the owner of a certain vacant lot of ground in the city of Erie, contracted by articles of agreement, to sell the same to one George D. Mead, for a certain sum payable in installments. The articles contained a warrant of attorney to confess judgment against the v.endee for any due and unpaid installments. Mead took possession, made some payments on account of the purchase money, and erected on the lot a small one-and-a-half-story frame house, 16x20 feet, resting upon blocks. On June 15th 1875, Mead, being then in arrear for purchase money due Hall, sold the house to the defendant Weed for $100, of which the latter paid $30 in hand, and the balance a week or two afterwards. There was some testimony tending to show that Weed knew that Mead Avas in arrear for purchase money, and that his object in selling the house was to prevent Hall from obtaining it. Mead vacated the house on July 19th, and on the same day the defendant Hoffman, employed by Weed, moved it off the lot, and into the public street, en route for its intended destination.</p> <p>On the evening of the same day, Hall caused judgment to be entered against Mead, by virtue of the warrant of attorney contained in the articles of agreement, for the amount of unpaid purchase money, and immediately issued a fi. fa., by virtue of which the sheriff the same evening levied upon the house.</p> <p>It appeared by the testimony of several Avitnesses that the house Avas sold at sheriff’s sale, under said fi. fa. to one Blood, agent for Hall, for $97, on July 26th 1875, the same day on Avhich the Avrit of replevin Avas issued. Among other witnesses, one Stuerznickel testified that he was.deputy of the then sheriff Hyner, since deceased; that he sold the house on said date, endorsed a return in pencil on the fi. fa., and made this entry in the sheriff’s sales book, Avhich ivas produced in evidence r “Jos. E. Hall v. G. D. Mead; fi. fa. No. 180, September Term 1875, at 9:30 a. m. sold one-and-one-half-story frame dAvelling house to Blood, for plaintiff, for $97.”</p> <p>The writ of fi. fa., when produced in evidence, contained the following indorsements : “ Writ returned by order of plaintiff’s attorney. B. J. Reid.</p> <p>“Aug. 7th 1875.”</p> <p>“ Stayed. So answers.</p> <p>J. L. Hyner, Sheriff.”</p> <p>Stuerznickel testified that he recognized remains of his pen-oil indorsement, which had been erased. No explanation of the erasure was offered.</p> <p>Upon August 9th 1875, Hall made a settlement with Mead, as follows. — “Hall v. Mead; C. P. Erie Co. 882, May Term, 1875. This judgment entered in the above stated case is for balance of purchase money on articles of agreement..... And in consideration of said Mead surrendering up and cancelling the said agreement, the plaintiff has satisfied the balance of said judgment in full, and this releases said Geo. D. Mead from all liability on account of said articles of agreement or judgment thereon. B. J. Reid,</p> <p>Attorney for Jos. E. Hall.”</p> <p>The defendant presented the following points:—</p> <p>1. The court is requested to charge the jury, that as the execution shows that no levy [sale] was ever made, that the plaintiff’s attorney stayed the execution No. 180, September Term 1875, and that the sheriff returned the execution stayed, the plaintiff, Hall, took no title to the house in controversy, and the plaintiff cannot recover.</p> <p>2. That the return of the sheriff on the execution is conclusive, and cannot be controverted nor impeached, in any manner by parol evidence.</p> <p>3. That Hall could only acquire title to the house by purchase from Mead, by sale on execution, or the recovery of the land and house by ejectment; and as Hall had done neither, he had no title to the house, and cannot recover.</p> <p>4. That Hall, per his attorney, B. J. Reid, settled with Mead, August 9th 1875, and canceled the contract for the lot, and therefore extinguished all claim upon Mead, and the house which was not on the lot at that time.</p> <p>The court refused all the above points, and in the charge said: — “ The jury is instructed as a matter of law that the plaintiff, Hall, is legai owner of the premises which had been abandoned by Mead, and has a right to the possession of the house, which was erected on the lot, and that notwithstanding the sale to, and partial removal by the defendant, Weed, under all the evidence the plaintiff is entitled to recover in this case, without reference to the alleged sheriff’s sale, and the jury will have only to assess the amount to be recovered by the plaintiff, which will be the value of the house, with interest from July 19th 1875.”</p> <p>Verdict for the plaintiff, for $180.56, and judgment thereon.</p> <p>The defendants took this writ of error, assigning for error, the refusal of the points and the instruction to find a verdict for plaintiff for the value of the house.</p>

<p>1. A., an oil-dealer, left at his bank, a check for $1,500, drawn id his favor by B. There being no funds of B. at the bank at that time, the check was left there, according to plaintiff’s evidence, under au agreement of the bank-officials that they would see that it was paid out of the first unappropriated funds of B. coining, in. Large sums were subsequently deposited by B.. but the jury found that they were not unappropriated. This suit having been brought to enforce the liability of the bank on its alleged agreement: Held, that the plaintiff was not entitled to recover.</p> <p>2. <The plaintiff offered to show that the above transaction was the ordinary course of business of" that bank with its depositors, and that this was known to plaintiff, and to all- persons engaged in -dealing in oil Held, that, the evidence was properly excluded, as .it was neither an offer -to prove (q) a special cus.tom, nor (6) a special course of dealing between the bank and plaintiff.</p> <p>3. 'Where the plaintiff’s theory of a case is supported by his evidence alone, it is not error for the court to repeat in its charge several times the expression, “If you believe the evidence of the plaintiff.”</p>

<p>Error to the Court of Common Pleas of Erie county: Of July Term 1882, No. 215.</p> <p>This was a scire facias, issued September 29th 1881, by the Erie Dime Savings & Loan Company against S. P. Kepler, with notice to terre-tenants, to revive and continue the lien of a judgment obtained October 19, 1876, by the said Erie Dime &c. Co. against said S. P. Kepler. The writ was served on said defendant and on Frank Gunnison, as terre-tenant. The latter filed the following affidavit of defence:—</p> <p>“Frank Gunnison being duly sworn says he has been served with a copy of the writ in the above stated case, which was served on him, as he supposes, on the supposition that he is the terre-tenant of lands formerly owned by the above named defendant.</p> <p>“That on or about October 1876, the above named defendant, with William P. Hayes, who were then doing business as a partnership, under the firm name of Hayes & Kepler, made an assignment to this deponent for the benefit of creditors, of all the property of said firm, and in said assignment conveyed to this deponent a large quantity of real estate which was incumbered with mortgage liens, the debts of said firm of Hayes & Kepler. That said liens greatly exceeded, in amount, the value of all the real estate that passed to this deponent by virtue of said assignment.</p> <p>“ That the said S. P. Kepler, the above named defendant, had no interest in said lands other than as a partner in the firm of Hayes & Kepler, and that said assigned real estate was all the property of the said partnership, and not of the said defendant, and consequently was not subject to the debts of said defendant, except so far as his interest in any surplus that remains after the payment of the partnership debts of said partnership is concerned ; the assigned property will not pay the said partnership debts, and the said defendant can therefore have no interest in said lands. He therefore believes the original judgment of the plaintiff was no lien upon the property assigned to him by said partnership, and cannot be made a lien by the scire facias to revive said judgment. He further says, none of the individual property of said defendant was assigned or conveyed to him. All of which he expects to be able to prove at the trial of this case. And further he saith not.”</p> <p>The plaintiff entered a rule for judgment for want of a sufficient affidavit of defence, which the court (McDermitt, P. J., holding a certified court) made absolute, whereupon the defendant took this writ of error, assigning for error the said judgment for want of a sufficient affidavit of defence.</p>

<p>1. Where an amicable action is entered by agreement without pleadings, and is proceeded in to trial, such agreement is not a waiver of a statutory defence. Thus where, in such case, the plaintiff on the trial seeks to recover upon a cause of action more than six years old, the defendant may set up the bar of the statute of limitations.</p> <p>2. In such case, after verdict, the case is to be treated as though pleadings had been filed conforming to the issue actually tried, in pursuance of the provisions of the Act of March 14th 1872 (P. L. 25).</p> <p>3. One cannot maintain an action in his own name for services rendered both in his individual capacity, and also while a member of a partnership, on the dissolution of which he had acquired the interest of the retiring partner.</p> <p>4. Where an attorney at law is retained for a special service, as to collect a debt or conduct a suit, the statute of limitations does not begin to run against his claim for compensation until the debt is collected of the suit ended, however long a time may elapse. Where, however, ho is employed to furnish general professional advice and services, extending over a long period, without special agreement as to time of payment, he is entitled to demand payment within a reasonable time, and a reasonable time would not exceed a year. In such case the statute of limitations would bar a claim for compensation for more than six years’ services.</p> <p>5. Where the widow and children of an intestate requested the administrators to sue out a writ of error to a judgment obtained against them in an amicable action upon a claim against their decedent’s estate: Held, that it was proper and prudent for them to comply with such request. A judgment obtained against administrators, in some circumstances, will not protect them in suffering the judgment to stand and payiDg it out of moneys of the estate.</p> <p>6. Where the trial judge seals a general exception to the whole charge, notwithstanding a rule of court requiring specific exceptions, the Supreme Court will not decline to consider assignments of error founded on such general exception.</p>

<p>1. A foot passenger on the sidewalk of a city street, who, with full knowledge of the dangerous character of an obstruction on the pavement, deliberately attempts to walk over it when he could have avoided it by a slight detour into the street, and who falls and is injured in such attempt, is guilty of contributory negligence per so. Hence, in an action brought in such case by the injured person against the city to recover damages for the injury, on the ground that the municipal authorities had negligently allowed such obstruction to remain in the highway for several weeks, the court should direct a verdict for the defendant.</p> <p>2. A foot passenger in the streets of a city attempted to cross a high ridge of snow very slippery on the surface which sloped at an acute angle across the sidewalk into the street. While making this attempt she fell and sustained severe injuries. The ridge had existed for about three weeks prior to the accident, and it was commonly regarded as dangerous. Many passers-by were in the habit of turning out into the street to avoid it. The foot passenger in question had previous knowledge of the condition of the ridge, and it was in the daytime that she attempted to cross it. In an action brought by her against the city to recover damages for her injuries : Meld, that the evidence showed that she had been guilty of such contributory negligence as to preclude her right of recovery, and that the. jury should have been instructed to find for the defendant. Meld further, that it was error in the above case to leave the question of contributory negligence to the jury.</p>