Volume 102 — Pennsylvania State Reports

116. Case, by Hiram Pruden, against Charles Miller and C. H. Walbridge, to recover damages for malicious prosecution and false imprisonment. Plea, not guilty. Held: expired, and Walbridge surrendered possession to the owner, Sill; Pruden remained in possession of the house.

<p>Appeal from the Court of Common Pleas of Erie, county: In Equity. Of January Term 1883, No. 106.</p> <p>This was a bill in equity, filed by Eliza Jane Sturgeon, widow of Andrew Sturgeon, deceased, against Melvin M. Kelso, praying that one-third part of a certain tract of 110 acres of land, of which her husband was in his lifetime seised,- and of which the defendant was in possession, be set out to her for her dower; and for an account of the rents and profits thereof since the death of her husband.</p> <p>The defendant filed an answer, and the cause was referred to Frank Gunnison, Esq., as examiner and master, whose findings of fact and conclusions of law were in substance, as follows :</p> <p>The complainant is the widow of Andrew Sturgeon, who died February 2oth 1879. He was seised in his life-time of the premises in question which were encumbered by mortgages, executed by him and judgments entered against him. He was adjudicated a bankrupt, and the premises in question were assigned to his assignee in bankruptcy, by whom, the same were sold under an order of the District Court of the United States “free of all liens and incumbrances,” at which sale Melvin M. Kelso, the defendant, became the purchaser for the sum of $11,800. The sale was duly confirmed, the deed delivered and the purchase money paid.</p> <p>Upon the morning of the sale, Mr. Kelso, with the assignee n bankruptcy .and .another witness, called on Mrs. Sturgeon and inquired of her whether she claimed to have any right of dower in the farm. She replied : “You needn’t hesitate a moment on that account, as I make no claim whatever, nor don’t intend to; if yon want to buy the place Mr. Kelso, you needn’t hesitate; Pll never make you any trouble.” Mr. Sturgeon, the complainant’s husband, was present at this interview.- Mr. Kelso testified that but for this statement of Mrs. Sturgeon, he would not have bought the farm.</p> <p>The Master reported (1) that the court had jurisdiction of the bill; (2) that the widow’s right of dower was not divested by the sale in bankruptcy; and (3) that' the complainant, being a married woman at the time of making the above statements, was not thereby estopped from subsequently claiming her dower. He, therefore, reported (4) a decree in accordance with the prayers of the bill, and (5) the defendant to pay all costs in the case.</p> <p>Exceptions, filed by the defendant to the above findings and decree, were overruled by the court (Galbraith, P. J.); and, the parties having agreed (without prejudice), upon certain .amounts to represent tlfe complainant’s proportion of the rents and profits since the death of her husband, and upon a yearly amount to be paid to her during her life in lieu of setting out to her one-third of the land, the court entered a final decree, directing the defendant to pay to complainant said amounts, and charging the annual payments during her life-time upon said lands; and further, that the defendant pay all the costs in the case, including the Master’s fee of $150.</p> <p>The ejefendant took this appeal, assigning for error the dismissal of his exceptions to the Master’s report and the said final decree.</p>

<p>Error to the Court of Common Pleas of Somerset county: Of July Term 1882, No. 229. •</p> <p>Ejectment, by Rebecca C. Meyers, against John Eeig et al., for a lot of ground in Berlin borough, Somerset county. Plea, not guilty.</p> <p>On the trial, before Rowe, P. J., it was admitted that Charles Heffley died seised of the premises in dispute in 1868.</p> <p>The plaintiff, Mrs. Rebecca Meyers, claimed under an Orphans’ Court sale in partition, made March 25th 1870, duly confirmed May 5th 1870, and she offered in evidence the record thereof and a deed dated June 10th 1870, from Josiah Heffley and George Heffley, administrators and trustees for sale of real estate of Charles Heffley, deceased, to herself, recorded in March, 1877. Objected to because the said record of the Orphans’ Court shows that the sale was made to Emanuel J. Meyers, and so returned and confirmed, while the deed is made to Rebecca J. Meyers; further, because the name of the grantee “ Rebecca C.” and the words “ her ” and “ she ” wherever they occur are in a different handwriting from the body of the deed. Objections overruled. Exception. (7th assignment of error.)</p> <p>The plaintiff offered to prove, by her husband, Emanuel J. Meyers, that he bought the property at the sale in partition at her solicitation, and it was knocked off to him for $2,001; that a day or two before the sale his wife suggested that she wanted that property. Objected to. Objection overruled. Exception. (5th assignment of error.)</p> <p>This witness testified that he bought the property for his wife, at her request, and the cash payment of $301 made by him at the sale was her money which he got from her and which she had received from her father. The deed was made to his wife at his direction, subject to the payment of $850 to the mother of Charles Heffley and $850 to his widow; that the interest thereon and subsequently the principal of one of said sums was paid with his wife’s money which she got from her father’s and mother’s estate; that she obtained from her parents estates in all $6,500, in money and notes, some of which he had borrowed from her and had given her notes therefor. It appeared that Emanuel J. Meyers gave his bond to secure the above mentioned dower rights.</p> <p>Plaintiff’s counsel offered to show by Charles Shank, that D. J". Lichty, plaintiff’s father, come to plaintiff’s house the evening before Christmas, 1870, and threw a roll in her lap that looked like a roll of money, saying at the time it -was a Christmas gift, and that plaintiff next morning .said it was .$500. of money, whilst D. J. Lichty was still at her house. Objected to, because the plaintiff’s declarations are not admissible. Objection overruled. Excepción. (9th assignment of error.)</p> <p>Plaintiff offered in evidence a deposition of Harvey Meyers. Objected to, as to so much as gives the declarations of the husband. because his declarations are not admissible to make title in the wife. Objection overruled, and the whole deposition admitted. This deposition contained, inter alia, the following : “Father bought it for my mother. I heard 'him say he bought it for her, and I heard her tell him to buy it for her before the sale. I saw her give father money to make the first payment.” (6th assignment of error.)</p> <p>After the purchase of the property, Emanuel J. Meyers and Rebecca C., his wife, took joint possession, and improvements were made, under the supervision of the husband, who also insured the house. The property was assessed in his name, and he paid the taxes.</p> <p>The defendant, Feig, testified that he loaned money to Emanuel J. Meyers, in 1875, on the faith that Meyers owned the property in dispute, in which he then resided, that Meyers told him he was the owner. Emanuel J. Meyers subsequently became embarrassed, and Feig obtained judgment against him, and in 1877 issued execution, sold the property in dispute at sheriff’s sale, and himself bought it in, receiving a sheriff’s deed therefor May 1st 1879. Subsequently in 1879 Feig brought an action of ejectment against Emanuel J. Meyers and Rebecca 0., his wife, obtained a verdict, and afterwards Obtained possession. Plaintiff subsequently brought this suit against him.</p> <p>The court, in affirming plaintiff’s first point, which was, in substance, that if the lot was bought by the husband for his wife, the plaintiff, with her money, and the deed was made in her name, the verdict must be for the plaintiff, said : “ I affirm this point: she must show that the property was,bought for her; that she had the means to buy with ; and that she applied those means in payment of the purchase-money. And this she must show by evidence at once clear and so full and satisfactory that the jury can rely on it with reasonable certainty.”</p> <p>The defendant presented, inter alia, the following points:—</p> <p>3. That if the jury believe from the evidence, that the debt of John Feig was contracted by E. J. Meyers before the alleged deed to Mrs. Meyers was put upon record, and upon the faith of the title to the property being in Mr. Meyers, and upon his representation that the title was in him, and she permitted the trustees to return the-property sold to her husband, and the Orphans’ Court record showing title in him to stand unchanged ever since the purchase by him in 1870, and suffered her husband to exercise exclusive acts of ownership and dominion over the property, and to hold himself out to the world as the owner thereof — such as representing himself to be the owner and dealing with it as owner, having it assessed to him, paying the taxes on it, making improvements thereon in his own name, and insuring it in his name — then she is estopped from setting up title in herself, and the verdict must be for the defendants.</p> <p>Answer. The defendant’s third point is refused. If the wife was the grantee named in the deed, and her money paid for the property, she is not estopped by such things. A married woman does not convey or lose her lands by estoppel. She can only convey her lands in one way — by deed with separate examination. She can be estopped only in those cases where she has power to act or contract by herself. (First assignment of error.)</p> <p>(5) That if a husband or wife purchases'land and pays for it, and has the deed made to the other, there is no presumption of a resulting trust in favor of the one who pays for it. Such presumption of trust arises only between strangers. As between husband and wife, the law presumes it to bo a gift.</p> <p>Answer. If a husband purchases land and pays for it himself, but has the deed made to his wife, it is a gift, no trust results. The land is the wife’s except as against her husband’s creditors. (Second assignment of error.)</p> <p>(8) If the jury believe that the deed was drawn with the Christian name omitted, but that it was the intention of the grantors to make the deed to Emanuel J. Meyers, the party to whom the property was sold at the trustees sale, and so returned to and confirmed by the court and the purchase-money secured by him; and that ■ by mistake it was delivered to Emanuel J. Meyers in that, condition, then the subsequent insertion of the name of Rebecca. C. Meyers, without the consent of the grantors, would not convey the title to her, but the title would remain in Emanuel J. Meyers, and the defendant Feig, having purchased his title, the verdict must be for the defendants.</p> <p>Answer. I do not affirm this point. There is no evidence to support it. And even if the deed was delivered blank- as to name of grantee, but afterwards the wife’s name was filled in, and she paid all the purchase-money, -it would give her title. (Third assignment of error.)</p> <p>10. That as the evidence on thé part of the plaintiff shows that the name of Rebecca C. Meyers was inserted by another party than either the counsel who wrote the deed, or the one who delivered it,.but does not show that it was done with the consent of the grantors, the plaintiff has failed to show such a title to the land in dispute as would entitle her to recover, and the verdict must be for the defendants.</p> <p>Answer. Refused. (Fourth assignment of error.)</p> <p>The court charged, inter alia, as follows:</p> <p>“ Under proceedings in partition of the real estate of Charles Heffley, deceased, Josiali and George Heffiey, his administrators, were appointed by' the court to sell this property, and. did sell it- on 25th March 1870, for $2,004.' [It was knocked down to Emanuel J. Meyers, the husband of the plaintiff, and was returned to court as sold to him and the sale so made and returned was on the 5th day of May 1870 confirmed by the court. On the following 10th of June, the administrators made and delivered a deed therefor in pursuance of the sale. That deed is here and the grantee named therein is the plaintiff, Rebecca C. Meyers.] (Eleventh assignment of error.)</p> <p>“ Was the property bought for her? She, her husband and her son tell yon that it was. The return of sale makes against her. [The deed as it now appears makes in her favor, showing that at the beginning the title was put in her. The deed is to Rebecca C. Meyers.] (Twelfth assignment of error.)</p> <p>“It seems that in 1870 E. J. Meyers was a man in good financial circumstances; no debts, no creditors to cheat; contemplating no hazardous venture. If, such being the case, he had the deed made in the name of his wife, it shows the house and lot was bought for her. [Therefore the defendant avers that this deed was not always as it now appears. You start, however, with the presumption that it was. The name of Rebecca C. Meyers is written in it as grantee, and there is not the least appearance of erasure on the face of the paper.] (Thirteenth assignment of error.) ■</p> <p>“ [Then the defendant tried to show by Dennis Meyers that by the use of certain chemical agencies a writing might be taken out without injury to the paper so as to allow of the substitution of other writing in its stead, without leaving any trace of alteration. But the evidence came far short of establishing the proposition. In the absence of the deed itself (as was the case in the last trial) the evidence adduced by the defendant would be strong to show the grantee in the deed was Emanuel J. Meyers. But how can it prevail against the evidence of the deed itself? Manifestly it is not altered. I do not hesitate to say so for myself. The fact, however, is for yon, and I submit it to you.] ” (Fourteenth assignment of error.)</p> <p>Verdict for the plaintiff, and judgment thereon. The defendants took this writ óf error, assigning for error, the ruling of the court on the question of evidence, above particularly-noted, the portions of the charge above included within brackets, and the omission of the wife to join her husband as co-plaintiff in the action.</p>

<p>1. Where one signs an application for insurance on one of several different plans of insurance on which the company does business; receives a policy in accordance with the application; gives a premiun note in accordance with the policy, and retains the policy for a long period without objection to the company; he cannot afterwards set up, as a defence to an action by the company to recover an assessment duly made during the life of the policy, that by a mutual, mistake of the agent and himself' the policy was upon a different plan from that which he originally verbally requested, and which he supposed he had received.</p> <p>2. Where-one signs an-application for insurance, without.reading it, and subsequently accepts and retains a policy in accordance with the application, without reading the policy, parol testimony is inadmissible, on his behalf, of representations made by-the agent, prior to contract, to contradict or to enable him to escape liability from the terms of the policy.</p> <p>3. Returning a policy of insurance to the agent of the company who effected the insurance, whose employment was merely to solicit insurance, is not a surrender of the policy to the company, and does not relieve the insured for liability for assessments.</p> <p>4. Where one accepts and retains a policy of insurance, thereby enjoying its protection, he cannot repudiate his liability for assessments thereunder on the ground that he was under a mistake as to the character of the policy.</p> <p>5. An instrument may be reformed in cases of fraud, accident or mistake, but where the mistake was the result of supine negligence of the party, who sleeps upon his rights until other duties and responsibilities have grown up, the law will not help him.</p>

<p>1. The charter of the Pennsylvania So Ohio Canal Company provided that it might enter upon, take possession of, and use all such lands as might be necessary for the construction of its works, certain commissioners being authorized to assess such damages as they thought any person would sustain by the'opening of the canal through his land. The canal was further declared to be a public highway whereon any one might travel on payment of tolls. The stock was declared real estate, and the works were vested in fee in the stockholders as tenants in common: Held, that the company acquired under the terms of the charter a right of way only over the lauds appropriated by them, and that they did not acquire said lands in fee.</p> <p>2. The said canal company having become insolvent, and all its property and franchises being sold to a railroad company by order of court: Held, that said last-named company could not construct its tracks on the right of way acquired by the canal company without making compensation to the owner of the land.</p> <p>3. The owner of the land was held entitled, where such track had been laid without making or tendering compensation, to recover in ejectment against the railroad company.</p> <p>4. Where a judgment is obtained by the owner of the fee in such action of ejectment, the railroad company may secure a right of way and save its improvements by having damages assessed as provided by law, and the court may by injunction restrain execution on the judgment until this can be accomplished.</p>

<p>Error to the Court, of Common Pleas of Somerset county: Of July Term 1882, No. 163.</p> <p>Assumpsit, by William B. Mausbury against Ludwiclc Brack, to recover the price of work done under a parol contract. The defendant died after service, and an alias summons was served on his administrator Conrad Brack, who pleaded nonassuinpsit, payment with leave etc., and set off.</p> <p>On the trial, before Hall, P. J., the evidence showed that the plaintiff agreed by parol with Ludwick Brack to construct for him a saw mill on his land, of a certain description, and to lay certain water pipes, within a certain time, for $300 ; Brack to furnish material and to board the hands. This action was to recover the price agreed on. The defendant’s testimony showed that the mill had not been constructed in conformity with the contract, and that it had not been completed. The plaintiff alleged failure by Brack to furnish material as agreed upon. The court submitted the ease to the jury, but the charge and points, if any, were not brought up in the bill of exceptions.</p> <p>The jury found a “ verdict in favor of the plaintiff for the sum of two hundred and forty six dollars and sixty six cents, ($246.66), and the plaintiff to complete the job according to contract.”</p> <p>A new trial was refused by the court.</p> <p>About four months after the date of the verdict, plaintiff’s attorneys “ moved the court to remove the stay of execution, and permit plaintiff to have execution for the amount of the verdict and judgment, the plaintiff having completed the mill according to contract.” On the hearing of this motion, at a certified court before Ewing, J., plaintiff filed certain affidavits setting forth that he had completed the saw mill and it was in running order; the defendant presented counter affidavits, denying the fact. The court, after argument, made absolute the above rule, and judgment was accordingly entered on the verdict for plaintiff for $246.66.</p> <p>The defendant took this writ of error, assigning for error, that the verdict was uncertain, inconclusive and bad; that the judgment entered thereon was erroneous, and that the court erred in awarding execution thereon.</p>

<p>Certiorari sur. appeal, by the Central Railroad Company of New Jersey, from an order of the Court of Quarter Sessions of Northampton county, dismissing the petition of the appellant, and refusing to set aside the. order of confirmation of the reports of viewers appointed to lay out and alter the route of a road in Palmer township. Of July Term 1881, Nos. 37, 38.</p> <p>The material facts of the case, as they appeared from the. record, are fully stated in the opinion of this court. The error assigned was the refusal of the court below to set aside the viewers’ reports.</p>

<p>Appeal from the Court of Common Pleas No. 3, of Philadelphia county: Of January Term 1881, No. 115.</p> <p>This was a bill in equity filed by Matthias Dill against Marcus Haugh, praying that the defendant be enjoined from using a cess-pool or privy well, on his lot, whereby the water in a well on plaintiff’s lot was fouled. The defendant filed an answer, and the cause was referred to an Examiner and Master, (J. Howard Gendell, Esq.), who found the facts to be substantially as follows:</p> <p>The complainant and the defendant own adjoining houses and lots, situate in the outskirts of that part of the city of Philadelphia known as Manayunk. The plaintiff purchased his property in 1845, on which the well had been dug the preceding year. The water of said well was always pure and suitable for household purposes until shortly after the construction by the defendant of the cess-pool on his lot, when it became foul and unfit for use. The properties were not in a thickly built-up section, and wells and pumps were in common use in similar properties. The street on which the lots abut, was paved, water-pipes from the water-works laid, and the property taxed at full city rates.</p> <p>The Master, after reviewing the evidence as to the relative situation of the well and the privy, and the character of the soil, found as a fact “ that the water in plaintiff’s well has been and is contaminated by the defendant’s privy-well.” The Master reported, as matter of law, that the plaintiff was entitled to the relief prayed for, and recommended a decree accordingly.</p> <p>The defendant excepted to the M aster’s finding that “ the injury complained of is directly traceable to the defendant’s privy,” and to the decree as reported.</p> <p>The court, after argument, dismissed the exceptions, confirmed the master’s report, and entered a decree perpetually enjoining the defendant “ from permitting or suffering any water or filth to run or percolate into the water well upon plaintiff’s premises from the privy on defendant’s premises; that to this end the said defendant be, and he is hereby required within thirty days to thoroughly cleanse said privy-well ; and he is hereby further perpetually enjoined from using said privy-well, or permitting or suffering the same to be used until it be thoroughly cemented, or otherwise rendered water-tight.”</p> <p>The defendant thereupon took this appeal, assigning for error the said decree, and the confirmation of the Master’s report.</p>

<p>Error to the Court of Common Pleas No. 4, of Philadelphia county: Of January Term 1882, No. 400.</p> <p>Scire facias sur mechanic’s claim, by Wilbur F. Miller against Charles A. Blessing. . Pleas, non assumpsit, payment, set off with leave, etc. No notice of special matter was given by the defendant before trial.</p> <p>The facts of the case, as they appeared on the trial, before Elcock, J., are fully reported in the opinion of this court. The verdict was for the plaintiff for $277, and judgment was entered thereon. The defendant took this writ of error assigning for error the following portion of the charge of the court:</p> <p>“ If defendant failed to pay for the bricks as they were delivered, he cannot insist upon performance on the part of the plaintiff, nor can he set up as a defence the difference in the price of bricks he bought of other parties to the claim of the plaintiff for such bricks as were delivered. If the defendant at any time used the bricks which were not required in the building, he is obliged to pay for them at the contract price.”</p>

<p>• Appeal from the Court of Common Pleas No. 4. of 'Philadelphia county : Of January Term 1882, No. 344.</p> <p>This was an appeal by Neal Hambleton, committee of the person of William Neal, a lunatic, from a decree of said court, dismissing his exceptions to the report of an auditor appointed to audit, settle and adjust tlie account of said committee, and confirming the report.</p> <p>Before the auditor the facts appeared to be as follows : — In proceedings in lunacy, in 1877, William Neal was found to be a lunatic and to have been sucli’without lucid intervals for the space of one year prior to the date of the inquisition, October 23d 1877. At that time his estate consisted of personalty valued at $101,000, and of realty valued at'$9,000.;.. He was 8.3 years of age, in sound physical health, and -without mental hallucinations, but afflicted with senile dementia and loss of memory. His wife died in 1875, and he had no children. His nearest relatives were nephews and nieces. For many years he had resided in his own house, he lived comfortably and kept two servants. As long ago as 1863, he had written to his nephew, Neal Hambleton, who lived in Chicago, urging him to come and live with him, and subsequently often repeated that request.. In 1876, Neal Hambleton with his -wife and two children, yielded to Mr. Neal’s request and went to live with him, under the arrangement that Neal Hambleton should .receive a salary of $1,500 a year, for taking care of his estate. From.that’time Hambleton and his family were supported .by Mr. Neal, as members of his household. After the inquisition in lunacy the Provident Life and Trust Company was appointed committee of Mr. Neal’s estate, and Neal Hambleton was appointed committee of his person; the latter entered security, as required* in the sum of $8,000.</p> <p>After this appointment, the household was kept up in the same manner as before, and the court from,time to time made orders authorizing the committee of the estate to. pay to the committee of the person the sum of $300 per month, for salary, expenses, and maintenance, &c., and on December 9th 1878, a permanent order was made for the payment by the committee of the estate, to the committee of the person, of $300 on the first day of each month “ for the support and care of the person, and to defray the household expenses of the said lunatic.”..-</p> <p>Shortly after the appointment of Neal Hambleton as com: mittee of the person, a nephew and a niece of the lunatic, on petition, obtained a rule to show cause why; said NeaUIambleton should not be dismissed as committee.. The matter was referred to an auditor, who took voluminous testimony, and reported that there was no ground for his dismissal, but that, on the contrary, he fulfilled his duties as committee in a praiseworthy manner. The said rule was discharged.</p> <p>In 18S0, on petition of a nephew and a niece of the lunatic, the court ordered Neal Hambleton to file an account as committee, which was filed and reierred to an auditor. The accountant charged himself with the total sum received by him. $8,700, and claimed credit for salary at $1,500 a year, $3,625, and household and other expenses, as per itemized account, $5,072.35 ; total, $8,707.35, thus showing a balance of $7.35 in favor of the accountant. The auditor reported that he “ does not consider that the family of'the accountant should be supported ..from the estate of. the lunatic, and the accountant, at the same time, receive a salarj^ of $1,500 a year as committee; further, that, although William Neal had kept two servants previous to Neal Hambleton’s coming-to his house, still one servant, besides the committee, would be sufficient to attend on the lunatic, and that the other servant should be properly chargeable to the accountant personally.” The auditor therefore surcharged the accountant with the wages of one servant, $300, and one-half the actual household expenses for food, &c., viz., $1,441.83, thereby bringing the accountant in debt to the estate in the saw of $1,734.48.</p> <p>Exceptions filed by the accountant to the auditor’s report were overruled by the court (no opinion filed), whereupon the accountant,.took this-appeal, assigning for error the dismissal of his exceptions and the confirmation of' the auditor’s report.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1882, No. 23.</p> <p>This was an appeal by Charles Hewson, trustee, under the will of Mary E. Cox, deceased, and Ellen M. Emlen, from a decree of said court, dismissing their exceptions to the adjudication of the auditing judge on the second account filed by said Charles Hewson, trustee.</p> <p>At the audit, before Hanna, P. J., the following facts appeared : — Mrs. Mary R. Cox, widow, died October 16th 1859, leaving three young children aged eight years, two years, and six days respectively. By her will, dated October 15th 1859, she appointed Charles Hewson to be her executor and trustee, and directed as follows:</p> <p>“I wish my aunt, Ellen M. Emlen, to take charge of my children, and to receive annually from my estate for her services $500. I leave to my aunt Emily Chapman $500. Heave to my aunt Ellen M. Emlen $500.”</p> <p>After several bequests and annuities, the testatrix further directed :</p> <p>“ The annuities in all instances to cease at the death of the annuitants, and to revert to my estate, and be equally divided between niy children, the issues of any child receiving among themselves the share which would have belonged to its parent if living.”</p> <p>By a codicil, dated the same day as the will, the testatrix provided as follows:</p> <p>“In case my above-named executor and trustee, Charles Hewson, shall find that the sum left me by Mrs. Ricketts, shall not be sufficient to cover the annuities and legacies, above named, then shall a reduction be made, pro rata, in all the sums mentioned, with the exception of those left to Mrs. Emlen ; to Rosalie, and Medora Cox; to Mrs'. Chapman ; and to Dr. Addinell Hewson.”</p> <p>The children of the testatrix remained in the charge of Mrs. Emlen until they reached the age of twenty-one years, respectively, the youngest becoming of age in October 1880. During •said period the annuity of $500 was paid to Mrs. Emlen annually.</p> <p>In the present account, the accountant claimed credit for the payment of said annuity to Mrs. Emlen of $500, on October 17th 18S1.' This item was objected to, on behalf of the residuary legatees, on the ground that the annuity to Mrs. Emlen, under the will of the testatrix, for taking charge of the children ceased upon the arrival of the youngest child of age in October 1880. It appeared that one of said children was married, and the others were self-supporting, and no longer required the “ charge ” or services of their aunt Mrs. Emlen.</p> <p>The auditing judge sustained the objection, and disallowed the said credit.</p> <p>Exceptions filed to the decision of the auditing judge were dismissed by the court, in an opinion by Ashman, J., whereupon the exceptants took this appeal, assigning for error the dismissal by the court of the exceptions and the confirmation of the adjudication.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county : Of January Term 1883, No. 108.</p> <p>This was an appeal by Johanna Dorothea John, from a decree of the Orphans’ Court, in the matter of the partition of the estate of Frederick L. John,-deceased, overruling her exceptions to the adjudication upon the account of a trustee appointed to receive the proceeds of a sale in partition.</p> <p>Frederick L. John died intestate, owning certain real estate in the city of Philadelphia, leaving eight heirs, of whom Carl Gottfried John was one. In proceedings for the partition of said estate, a sale thereof -was had, and a trustee - appointed by the court to receive the proceeds and account. The total fund for distribution was $24,478.98, each distributive share being $3,059.88. The controversy in this case arose over the distribution of the share of Carl Gottlieb John. At the audit, before Hanna, P. J., in 1882, said share was claimed, on the one hand, by the said Carl Gottlieb John (subject, as to a small sum, to the claim of one Huflet, an attaching creditor), and, on the other hand, by his wife, Johanna Dorothea John.</p> <p>The latter claimed by- virtue of an instrument executed by her husband and herself, February 1, 1869, in Germany, of which the following is the official translation :—</p> <p>DEED.</p> <p>February 1, 1869. Carl Gottfried John to Johanna Dorothea John.”</p> <p>1 thaler, 10 sq. stamp, A. 292.</p> <p>Carl Gottfried John, a farmer by occupation, and Johanna Dorothea, his wife, widowed Zimmerman, and nee Schmeller, both of Gehofen, have agreed upon the following contract concerning the sale of a certain inheritance : I, the said Carl Gottfried John, having become heir to a certain property by virtue of the last will and testament, dated November 30, 1864, of Frederick L. John, one of my brothers, deceased at Philadelphia in the year aforesaid, together with the rest of my brothers and sisters and the widow of the testator, to whom the said testator has left the dowager due to her according to the laws of the Commonwealth of Pennsylvania, do hereby, in consideration of five hundred thalers, the amount mutually agreed upon, seal and transfer unto my said wife all those rights which have devolved upon me as the heir of my brother Frederick L. John. This inheritance involves particularly my shares in certain lots of ground in the city of Philadelphia belonging to the estate of the deceased, and in the building erected on one of them — No. 320 Race street, which is occupied as a drug store, the latter having been leased for an indefinite term, together with all the rent-moneys and other profits accruing from the same hereafter; furthermore, all funds, furniture, effects, etc., which are still at the present time under the care and charge of the executor of the will, or which have not yet been distributed among the heirs. Whatever I have received from the substance of the estate, or whatever money has been paid to me from the profits of the same, however, is to be excluded from the said sale. In regard to the latter claim, I, Dorothea Johanna, wife of Carl Gottfried John, do hereby waive all claims as to the surrendering of or accounting for profits received by my husband, and likewise, I, the said husband, do hereby waive all claims as to the return of any taxes such as inheritance, property or other taxes paid on account of my share of the inheritance. All the charges and profits of the estate from the present date do pass over to the said Mrs. Jolin, nee Schmeller. The purchase money of five hundred thalers has been duly paid by the said Mrs. John, which is hereby acknowledged ; ownership and risks of the inheritance, as well, as of the several objects of inheritance inherited do pass over into the possession of the purchaser, and the same does hereby acknowledge the surrender - of the inheritance, and of the several objects inherited, so far as is required by the laws of the State of Pennsylvania, has actually taken place.</p> <p>The privilege of re-purchasing the said inheritance, hereby sold for the original purchase-sum of five hundred thalers, however, is reserved to the said Carl Gottfried John, in case he should survive his wife. In case the said Carl Gottfried John should make use of the said privilege, then the. heirs of the said Mrs. John, his wife, shall not be entitled to claim the purchase-money of five hundred thalers until the whole of the estate, and particularly until the buildings and drug store, has been sold.</p> <p>In regard to the security in the matter, the existing laws shall govern. The costs-of these proceedings to be paid by the. contracting parties jointly.</p> <p>Done at Gehofen, February 1, 1869.</p> <p>Carl Gottfried John,</p> <p>Johanna Dorothea John,</p> <p>Hesse, Attorney of the latter.</p> <p>The following proceedings done before the Commissioner of the Circuit Court at Artern, February 10, 1869 :</p> <p>Before this court this day did appear, personally known, and known to be responsible, Mr. Carl Gottfried John, cabinetmaker by trade, now a farmer, and Johanna Dorothea John, nee Schmeller, his wife, the latter being a sister by Mr. Hesse, secretary of the circuit court of this city. The same did submit the contract concerning.the sale of a certain inheritance, dated February 1st, declaring their desire to acknowledge its .contents by their signature. The contract was slowly, explicitly read to the components, whereupon they agreed to every part of it, and acknowledged their signatures affixed. The contents of the contract were explained to Mrs. John by undersigned judge, and the latter is fully convinced that there has been no hastiness in regard to the conclusion of the contract, and that Mrs. John fully knows the contents of it. Mr. and Mrs. John requested the issuing of these proceedings. Read, agreed to, and signed by Carl John,</p> <p>A. U. S. Wurzner. Johanna John,</p> <p>Hesse, her Attorney.</p> <p>Hereby issued on behalf of Johanna Dorothea John, née Schmeller, at G-ehofen. Sealed and signed at Artern, February 10th 1869.</p> <p>Commissioner of the Royal Circuit Court. [sea.l]</p> <p>Wurzner.</p> <p>Translated by J. F. Girard, Interpreter and Translator of Foreign Languages, January 6th 1877.</p> <p>Proved by subscribing witnesses October 23rd 1876, before J. De F. Juukin, Notary Public for the city of Philadelphia, and recorded February 23rd 1877, in the Recorder of Deeds’ Office for the county of Philadelphia, in Deed Book D. H. L, No. 75, p. 169, etc.</p> <p>■ Counsel for Carl Gottlieb John contended that the said deed constituted but a mortgage of his interest and share, that he had the right to pay the mortgage debt, and tendered the same, the amount to be taken from his share.</p> <p>The auditing Judge held as follows: — “There can be no doubt of; the intention of the parties, husband and wife. At the date of the execution of said deed it was an absolute transfer to the wife, accompanied by the reservation of the light to repurchase, and this is sufficient to constitute the deed but a mortgage. The clause of defeasance need not be a separate deed; it may even be by parol : Merkel & Smith’s Appeal, 10 W. N. C. 116. Nor is it material that the option to repurchase was only to take effect in case the husband survived the wife. It would make no difference, even, if he died in her lifetime. The point is the existence of the defeasance, irrespective of the time of its operation ; and this being the intention of the parties is sufficient to constitute the instrument, which upon its face appears an absolute deed of conveyance, to be simply a security for a debt. This seems so-well settled that it is unnecessary to refer to the numerous authorities on this subject. Under this view the judgment of John Huflet is entitled to payment out of the share of said Carl G. John, and after deducting the same and the loan due his wife, the balance of his share will be awarded to him absolutely.”</p> <p>Exceptions to this adjudication filed by Johanna Dorothea John were overruled by the court, in the following opinion, by Penrose, J.:—</p> <p>“Notwithstanding the very able argument on behalf of the exceptant, we are not convinced that the auditing judge has erred in treating the instrument of February 1st 1869, as a mortgage, and not as a conditional sale, or contract to convey. The absence of the word heirs in the agreement, forces the exceptant to contend that the contract-was ■ simply executory, but if such were its true nature, the gross inadequacy of consideration $363, for property selling at public sale for $3,059, would probably be sufficient to prevent a decree for specific performance, even if specific performance of a post-nuptial contract for the sale of lands, would in any case be enforced. The inadequacy of consideration in itself is some evidence upon the question, whether the transaction was not intended simply as a security, while the reference in the instrument, in the concluding clause, to the security in the matter, which otherwise seems meaningless, is perhaps conclusive.</p> <p>“Exceptions dismissed and adjudication confirmed.” Johanna Dorothea John thereupon took this appeal, assigning for error the dismissal of her exceptions and the confirmation of the adjudication.</p>

<p>1. Upon a writ of error in a homicide case where the prisoner is convicted of murder in the first degree, the province of the Supreme Court is to review the law as declared by the court below, and the evidence so far as to determine whether facts were testified to, which, if believed by the jury, show that the elements of murder in the first degree existed.</p> <p>2. The Supreme Court will not, in such case, review the discretion of the court below in refusing to grant a new trial. The provision of the constitution, of 1874 (art. V. sec. 24) that the accused, after conviction, may remove the indictment, record, and “all proceedings” to the Supreme Court for review, has not changed the law in this respect.</p> <p>3. The evidence in this case considered, and held to show the existence of the elements of murder in the first degree, and to warrant conviction of that crime.</p> <p>4. The instructions of the court below in tin's case on the question of the degree of murder as affected by intoxication of the accused, approved.</p> <p>5. The prisoner in this case shot his wife in the presence of her mother. The latter fled, and was followed and chased into an alley by the prisoner, who then shot her twice in vital parts, killing her instantly. The judge charged the jury, inter alia, as follows: — “Here the first attack was upon the wife, and an opportunity to kill Mrs. Reed had not been embraced. If there is a deliberate and premeditated purpose to kill one, and, in the execution of'such purpose, another is killed, the requisites of a murder in thfe first degree exist. But where there is a second and independent assault, there must be at that time, and accompanying the assault, a willful, deliberate and premeditated intent to kill some one, the person need not be designated. In this case, the evidence is as strong as to the intent to kill Mrs. Reed as to kill Mrs. McGinnis. He did"not embrace the first opportunity he had to kill Mrs. Read. At that time lie may have as yet formed no mu-pose to kill or he may have intended to kill both.”</p> <p>Held, not to be error.</p>

4, of Philadelphia county: Of January Term 1882, No. 417. Assumpsit, by L. S. Filbert against J. A. McFerran, upon a promissory note given by defendant to plaintiff, for $500, dated June 22d 1870, payable six months after date.

<p>1. It is ft general rule that a judgment or decree of a court of competent jurisdiction cannot be impeached collaterally. The sole exception to this rule is, that -when such judgment or decree is given in evidence against third persons, they may aver and prove that such judgment or decree was procured by fraud or collusion between the parties to it. But this exception does not apply to parties or privies who have already been heard, or have had an opportunity to be heard, in that proceeding upon that same alleged fraud. As to them the record is conclusive in any collateral proceeding. Their remedy, if any, is to apply to the same court in which such judgment was entered to open or vacate it, or by writ of error or appeal.</p> <p>2. Upon the distribution in the Orphans’ Court of a decedent’s estate, the question of the bona lides of an assignment of a certain legacy was litigated between the assignee and an attaching creditor of the legatee; the court decided in favor of its validity and awarded the fund to the assignee. In a subsequent proceeding in the common pleas, to wit, the trial of an issue under the attachment execution in which-the garnishees, executors, admitted that the amount of said legacy still remained in their hands, the said attaching creditor offered evidence (alleged to have been discovered subsequently to the said proceeding in the Orphans’ Court), to show that the said assignment of the legacy was collusive and fraudulent as between the legatee and his assignee:</p> <p>Held, that the said attaching creditor having been heard in the Orphans’ Court on the*question of the good faith- of the assignment, the decree of the Orphans’ Court in favor of its validity was conclusive upon him in this collateral proceeding, and that the evidence offered by him to show fraud in the assignment was inadmissible.</p>

4, of Philadelphia county: Of January Term 1882, No. 437. Covenant, on a policy of fire insurance for $5,000, by Philip Mund and Bernhard Albrecht, to the use of Alexander Biddle and Charles H. Hutchinson, guardians of the estate of W. A. Bingham, plaintiffs, and The Teutonia Fire Insurance Company of Philadelphia, defendant. The question in the case was the construction of a clause in the policy, and it was raised by demurrer.

<p>Error to the Court of Common Pleas Np. 4. of Philadelphia county : Of January Term 1882, No. 451.</p> <p>The record showed the following: — On August 14th 1876, a municipal claim was filed, wherein the city of Philadelphia was claimant, against ■“ Unknown owner, or reputed owner, or whoever may be owner,” for $156.54, being the amount assessed against a certain lot of ground situate on the southwesterly side of'Jackson street, particularly described, “in accordance with the Act of Assembly of the 1st day of April 1864, as the benefit occasioned to it by the opening of Jackson street, as found and determined by a jury of damages appointed by the court of Quarter Sessions of said city and county, and the report of which jury was duly confirmed by said court on the 14th day of February 1876, of all which said owner or reputed owner had due notice as required by law. Said sum of $156.54, together with the lawful interest, is claimed as a lien in favor .of.the city of. Philadelphia,-, and against said premises, whoever may be the owner or owners thereof, agreeably to the Acts of Assembly in relation thereto.”</p> <p>On January 31st'1881, by writing filed it was suggested that Solomon G-ans is actual and present owner of the said premises, and on the same day a scire facias was issued on said claim* which was- returned “ made known to Solomon Gans, and nihil habet as to unknown.”</p> <p>To this scire facias Solomon Gans filed the following special plea : That the lot of ground against which the said claim of the said plaintiff was- filed, was,conveyed by deed dated the 17th day of January 1851, and recorded in the office for recording deeds in and for the said city and county of Philadelphia on the 14th day of April 1852, in which said deed Solomon Prank and wife were the • grantors, and the said Solomon Gans and Meyer Gans, Daniel Gans, and Lazarus J. . Léberman were the grantees in fee as tenants in common ; and that the-said named grantees have been from the said date of the said conveyance continuously.and are now the owners in fee. of the said premises described in. said claim, except that the said Daniel Gans being now deceased, his interest therein is vested in his devisees under his will and no partition between the said co-owners has been made. And the said Solomon Gans further saith that the said lot of ground described in said claim was at the time of the said conveyance and from thence continuously and is now upon the. planned plot of the said city of Philadelphia, and that afterwards, to wit, on the 5th day of December 1867, to wit, at the city aftd county aforesaid, in-pursuance of the Acts of Assembly in such case made and provided, the said grantees in the said deed, and owners of the said lot, presented their said title- deed • for -registry to the Registry Bureau,, in the Department of Surveys of the said city of Philadelphia, and made report then and there of the said conveyance with the precise dimensions and locality of the premises in accordance with the Acts of Assembly in such case made and provided ; and thereupon the said title deed was noted, endorsed and stamped with the impress of the stamp of the said Registry Bureau as entered and registered in said Registry Bureau on the said 5th day of December 1867. And the said SolomonGans further saith that he, the said Solomon Gans and the said Meyer' Gans and the said Lazarus J. Leberman, were fora period of forty years continuously prior to - the issuing of the said writ of scire facias'residents of the city of Philadelphia,- and the said Daniel Gans, who was deceased at the time of the issuing of the said writ had been a resident of the said city as aforesaid for a period of twenty-seven years continuously.”</p> <p>The plaintiff demurred to the above plea, assigning as causes of demurrer : For that the matters,in the said plea averred are an allegation of non-joinder and misjoinder of parties, whereas the Act of Assembly in such case provides that no such plea shall be allowed. ■ Aud also that the said plea avers that the said Solomon Gans who was served with the writ of scire facias in the above case was at the time said writ issued, a part owner and tenant in common of the lot of ground, against which the said-municipal claim was filed. And also- that the said claim was filed by the city of Philadelphia to collect from the said lot of ground the amount of benefits assessed against it by the confirmed report of the road jury in the matter of the opening of Jackson street; and the said claim being a proceeding in rem, the said ■ matters alleged in the said plea - are irrelevant.</p> <p>The court, after argument, entered judgment for the plaintiff on the demurrer to the plea (no opinion filed).</p> <p>The defendant took this writ of error, assigning for error the entry of judgment for the plaintiff in the demurrer.</p>

1 of Philadelphia county: Of July Term 1882, No. 1. Assumpsit, by Michael McManus against II. Merriman, JDe Forest II. Merriman and II. A. Merriman, trading as II. Merriman & Sons, to recover for the breach of an alleged contract to pay for certain work and labor done and materials furnished.

36. The record showed the following: — Upon a petition of twenty citizens of Philadelphia the Court of Quarter Sessions appointed a jury of view to report on the question of opening Twenty-second street, between Islington lane and Lamb Tavern road, in the city of Philadelphia.

<p>1. In an action to recover damages for an injury caused by alleged negligence of defendant’s servant, where such alleged negligence consists of the omission of a duty .suddenly and unexpectedly arising, it is incumbent on the plaintiff to show that the circumstances were such that the .servant had an opportunity £o become conscious of the facts giving! rise to such duty and a reasonable opportunity to perform it.</p> <p>2. As a passenger car, moving slowly, after dark, was approaching a .switch, two boys, aged seven and ten years respectively, approached the car, and the driver requested or consented that the elder one should turn the switch. - .The elder boy then jumped on the front platform, followed by the younger boy. The former crossed the platform, jumped off the other side, ran ahead and turned the switch. The younger boy remained on the platform for about thirty seconds or less, during which time the driver was leaning forward devoting his attention to looking if the switch was right. - As soon as the car entered the switch the driver turned to see the younger boy, who had, however, an instant before, jumped off -after his hut which was blown off ; in so doing he fell on the track and was immediately struck by the wheels and fatally injured. In an action by his parents against the company, to recover damages :</p> <p>Reid, that under these circumstances there was no evidence of negligence on the part of the driver, and that the court should therefore have directed a verdict for the defendant.</p>

<p>1. The defendant in a suit in equity may, under the equity rules, object to the equitable jurisdiction of the court either by demurrer to the bill, or by averment in his answer.</p> <p>2. Where the defendant in a suit in equity did not demur to the bill, but excepted to the jurisdiction in his answer, and the cause was referred to an Examiner and Master, and the court finally dismissed the bill for want of equity, but imposed the costs of the reference to the Examiner and Master upon the defendant, on the ground that he was remis3 in not having made objection to the jurisdiction before the plaintiff incurred ■the expense of said reference: Held, tobe error. The defendant might have raised the question of jurisdiction by demurrer, but he was not bound to do so under penalty of paying costs subsequently incurred.</p>

<p>1. Corporate franchises may be taken Jike any other species of property by the Commonwealth by virtue of the right of eminent domain, upon making compensation. Any one to whom the Commonwealth has delegated the right of eminent domain has like powers.</p> <p>3. A supplement to a charter which merely confers upon the corpora? tion a new right or enlarges an old one without imposing any new or additional burden upon it, is a mere license or promise by the state, and may be revoked at pleasure. It is without consideration to support it and is not binding on a subsequent legislature.</p> <p>3. In this case the original charter and the supplement were passed at the same session with only a few days intervening, and the organization of the company took place after the passage of the supplement. There being other questions controlling the decision of the case, the court declined to pass upon the legal effect of the said supplement.</p> <p>4. A supplement to the charter of a passenger railway company provided that it should have the exclusive right to use and occupy the streets named in the charter for railroad purposes. Said railway company by virtue of its charter used and occupied a single square of a cross street so as to make the connection between the tracks on the two main streets upon which the cars ran :</p> <p>Held, that the exclusive grant must have a reasonable construction, and that its object was to protect the company from competition, nothing more.</p> <p>Held, therefore, that there was nothing in the terms of the supplement to prevent another railroad company from laying down a track on said single square of the cross street and running its cars thereon in an opposite direction to those of the company first named.</p> <p>5. The second railroad company above named having beeu expressly authorized by Act of Assembly to construct its track upon the cross street in question, the utmost that the first railroad company was entitled to demand, was compensation for the use of said street.</p> <p>6. A railway company was authorized by its charter to construct its tracks, inter alia, on a certain street. In order to avoid an obstruction at a certain point in ¡said street, said company was authorized to ‘‘ use such portions of adjacent streets as may be necessary.” The company accordingly laid its track on a portion of an adjacent street and continued for several years to run its cars .on such track. Subsequently, the obstruction being removed, it undertook to construct its track wholly on the first named street. A bill in equity being filed by another railroad company having its tracks on part of such cross street to restrain said construction :</p> <p>Held, that the first named company liad not made such an election of its location as to preclude it from altering the same, so as to run on the first named street.</p> <p>Held, further, that the complainant had no standing in court to obtain an injunction on such ground. The Commonwealth or the city alone could institute such a proceeding.</p>

<p>Error to the Court of Common Pleas No. 4, of Philadelphia county : Of July Term 1882, No. 75.</p> <p>Case, by Eliza G Landreth against the American Steamship Company, to recover damages for personal injuries sustained by her, in consequence of the alleged negligence of the defendant in not providing a guard-rail on a certain part of the cabin of a steamship.</p> <p>On the trial, before Elcock, J., the following facts appeared: — The plaintiff was a passenger on board the steamship Pennsylvania, a vessel of the company defendant, on a voyage in October, 1877, from Liverpool to. Philadelphia. After a severe storm, lasting for several days,- the plaintiff attempted to walk from her state-room to that of a lady friend on the opposite side of the vessel. While thus engaged in crossing the vessel, it gave a sudden lurch, the plaintiff was thrown backward, and, in the effort to save herself, fell and fractured one of the bones of one of her wrists. A high sea was running, as natural, following the abating of a storm. The place where the'plaintiff fell was alongside of a smooth panelling, twelve feet in length, covering the space between the first two alcoves of the cabin, near the staircase leading to the deck, where no guard or railing existed, which persons could take hold of or cling to, in case of a lurch of the vessel. The want of this guard or rail, to which plaintiff might have clung, was alleged as negligence or omission of a duty on the part of defendant.</p> <p>It was also asserted that, by the negligent conduct and improper treatment of the injured wrist by the ship’s surgeon, the plaintiff was occasioned great pain and suffering, and had to have extended and difficult treatment for a considerable time after the arrival of the vessel in port.</p> <p>The following testimony by the plaintiff was admitted under objection: —</p> <p>Q. Who was the captain of the steamer ?</p> <p>A. Captain Harris.</p> <p>Q. How soon after the accident did yon see him?</p> <p>A. He came in the moment he heard of it; he came to my state-room door and expressed the greatest regret about the accident.</p> <p>Q. What did he say ?</p> <p>A. .He asked me where it happened. I told him, and ho said that was a very dangerous part of the ship.</p> <p>Exception. (First assignment of error.)</p> <p>Testimony from the depositions of one Earle, a passenger, was then offered, as follows:—</p> <p>Q. Was there any hand-rail there ?</p> <p>A. No, sir; I spoke to Captain Harris about it, and told him what a dangerous thing it was, and he said he would have it remedied immediately.</p> <p>Objected to. Objection overruled. Exception. (Second assignment of error.)</p> <p>The defendant submitted, inter alia, the following points:—</p> <p>3. That if the jury believe that Dr. Hirons, when appointed surgeon of the Pennsylvania, was an educated physician, having a proper certificate from a medical college of good standing, the defendants are not responsible for any error in his treatment of a passenger on board of the-ship. Affirmed.</p> <p>5. That there is no evidence to support the charge of negligence in this.case, and the plaintiff is not entitled to recover. Refused. (Fourth assignment of error.)</p> <p>In the general charge the court said, inter alia: “ The defendants are here common carriers [carriers of passengers; and, as such, of course they are obliged to use in their business the most modern improvements], and to furnish safe and good vessels to the traveling community. When they do that, they do all that the law compels them to do, and the plaintiff.in this case, when she seeks to bring this action, brings it on the ground of the omission of some duty on the part of the steamship company.”</p> <p>The character and scope of the testimony is further set forth in the opinion of the supreme court.</p> <p>Verdict for the plaintiff in the sum of $1,791.56, and judgment thereon, whereupon the defendant took this writ, assigning for error (1, 2 and 4) the admission of testimony, and the answer to defendant’s fifth point as above noted ; (3) that portion of the charge to the jury cited in brackets, and (5) the omission of the court to rule that “ under the plaintiff’s evidence she was guilty of contributory negligence and cannot recover.”</p>

1, of Philadelphia county: Of July Term 1882, No. 44. This was, in the court below, a rule to show cause why a judgment, entered under a power of attorney contained in a lease against a deceased lessee, should not be opened and the administratrix let into a defence, and a writ of habere facias possessionem set aside.

29. . The record showed the following proceedings :— Petition for the appointment of a jury of view, to view and report upon the necessity of opening Twenty-eighth street from Peed street to the north line of what was Passyunk road, according to the old city plans. A jury of view was appointed in pursuance of the prayer of the petition.

<p>Appeal from the Orphans? Court of Philadelphia eounty : Of July Term 1882, No. 168.</p> <p>This was an appeal by Charles W. Brooke, from a decree of said court,- directing him to deliver up certain securities to the guardian of the minors to whose estate said securities belonged. The case was heard on petition and answer.</p> <p>The petition of Ann Stack, formerly Ann Tobin, filed March 25th 1882, set forth substantially as follows: On January 5th 1866, the petitioner, then Ann Tobin, widow of Walter Tobin, deceased, was appointed by the Orphans’ Court guardian of her two minor children, Mary and Johanna Tobin, and the court directed security to- b»' entered in the sum of $800. Her then counsel, Charles W. Brooke, Esq., became her surety on her bond for said amount. The petitioner alleged that Mr. Brooke induced her to place in his hands for safe keeping the corpus of the estate of said minors, consisting of four United States 7-30 bonds of $100 each, for which he gave her the following receipts:</p> <p>Philadelphia, January 20th 1866.</p> <p>Received of Mrs. Ann Tobin for'deposit for account of minors in Tobin estate two 7-30 United States bonds for $100 each, being part of bonds purchased with moneys paid in settlement of cause of Tobin v. Coastwise Steamship Company.</p> <p>Charles W. Brooke.</p> <p>Received of Mrs. Ann Tobin for deposit for account of minors in Tobin estate two 7-30 United States bonds for $100 each, being the remainder of the bonds purchased with moneys paid in settlement of cause of Tobin v. Steamship Company.</p> <p>Charles W. Brooke.</p> <p>That Mr. Brooke paid the petitioner interest upon said bonds to July 1880, but has since paid nothing, and has refused, on demand, to return said bonds or their proceeds with interest. That Mr. Brooke some years ago removed permanently to the city of New York, where he now resides; that petitioner believes he owns no real estate in this county, and is advised that being a non resident ‘has no right to retain said property. The petitioner prayed for a citation, and that the defendant be required to surrender said bonds or their proceeds, and to pay interest due thereon.</p> <p>A citation issued as prayed for. Mr. Brooke appeared, without service, and filed an answer, wherein he averred that in January 1865 he was retained as attorney for the petitioner, then widow of "Walter Tobin, deceased, and for his heirs, to prosecute a claim against the Coastwise Steamship Company for negligently causing the death of said Walter Tobin ; that after the commencement of an action a settlement thereof was had upon the following conditions : “ The said' petitioner having been appointed guardian of -the minor children, heirs of said decedent, your respondent becoming the security for such guardian ; and the said defendant’s attorney (Charles E. Lex, Esq.) having by agreement in writing, executed by said petitioner, exacted a covenant that the amount of the shares of said children agreed upon by the parties to said settlement should be retained in the possession of this ‘ respondent until such minor children should arrive at the age of maturity, that thereupon the sum of four hundred dollars ($100) was paid in accordance with said agreement to this respondent, who duly receipted to the petitioner as guardian therefor ; that the reason for such agreement was in the interest of said minor children, the said petitioner being a very illiterate and inexperienced person, and liable to again marry and have other interests and affections besides those existing at the time of the settlement of said action ; that this respondent reluctantly consented at the time to be the custodian of said moneys, and the allegation in the petition herein that tin's respondent ‘ induced ’ said petitioner to place the corpus of the estate of said minors (consisting of four hundred dollars as aforesaid) in his hands for safe keeping is wholly false and untrue, but having done so, continued semiannually to pay- the said petitioner the interest upon said-moneys, taking her receipt therefor ; that in the month of May 1871, this respondent removed to the city of New York, but from that time for ten years regularly paid, through his mother, residing in the city of Philadelphia, not only the interest semiannually as theretofore, but as the receipts of said petitioner show a sum in excess thereof; that if, as claimed by petitioner, any portion of such interest is unpaid, it is undoubtedly owing to the fact that respondent’s mother having about a year since changed the location of her 2-esidence in said city, which the petitioner had taken ho pains to ascertain the whereabouts of. This respondent upon claim being made for such interest sent to the attorney for the petitioner to ascertain the amount asserted to be remaining due and unpaid, and being informed thereof sent the same to the office of said attorney by messenger ; but said attorney had left the city and could not be found, nor could any person be found to receive the same ; that he is now and has ever been ready and willing to pay any such sum as may be due, but believes and asserts that such interest has in reality been fully paid up to the present time. The respondent further saith, that none of the children of said decedent for whose benefit said moneys are held in trust have .arrived at the age of maturity, but are still minors ; that one •of them, a daughter, is married, and that efforts have heretofore been made to obtain the principal of said sum for the use •of her husband ; that the petitioner has, since the decease of •said Walter Tobin, remarried, and has other interests and affections apart from said minor children ; that the respondent is ■desirous of guarding and protecting the interests of said minor ■children, and of protecting his own interest in view of the ■security he has entered herein; that the said petitioner is in his judgment and belief by reason of the circumstances herein .above set forth, not a judicious or proper custodian for such moneys : that your respondent has in all things faithfully and honestly administered the trust thrust upon him. And he therefore prays that the proceeding may be dismissed, and the prayer of the petitioner herein be denied.”</p> <p>After argument, on the petition and answer, the court (Hanna, P. J.) filed the following opinion and decree: — We do not think there can be any doubt as to the jurisdiction of the court to grant this petition. By the Act of June 16th 1836, Purdon 1104, it is declared that the jurisdiction of the Orphans’ Court shall extend to “ the appointment, control, removal, and discharge of the guardians of minors and the settlement- of their accounts,” and “ all cases within their respective counties, wherein executors, administrators, guardians, or trustees, may be possessed of, or are in any way accountable for, any real or personal estate of a decedent.”</p> <p>It would indeed be a narrow construction of the Act to hold that the authority of the court is limited to the control of executors, etc., individually, and the disposition of the estates committed to them, while as respects their sureties, or other parties obtaining possession of the -money, or other assets, which should properly be in the custody of the fiduciaries mentioned, or interfering with them in the management of either the real or personal estate, to the prejudice of those interested, it is powerless. Such could not have been the intention of the legislature. The prior Act of March 29th 1832, Ibid. 1106, prescribes the practice in proceedings^against persons amenable to the jurisdiction of the courts, and the form of process to enforce its decree. ' And further provides, in any case where proof shall be made that the defendant in the petition has in his possession trust property or effects, which he is wasting or otherwise disposing of, contrary to his duty or trust, or that he is about to abscond and carry such trust property or effects out of the jurisdiction of the court, “ it shall be lawful for the court to award a writ to the sheriff to take possession of such trust property, and hold the same subject to the order of the court.” It will thus appear that the most ample powers and authority are conferred upon the court to protect the estates of decedents and minors, and retain the same "within its own control. And further, as if declaratory of its jurisdiction as a court of equity within the limits of the powers theretofore conferred, the Act of 1874, Purdon 1934, pi. 7, was passed, whereby it has “ power to prevent, by orders in the nature of writs of injunction^ acts contrary to law or equity, prejudicial to property over which they shall have jurisdiction.”</p> <p>Here we have the case of a surety, who received from his principal, a guardian, moneys of minors invested in United States loans, which he has not only removed from this jurisdiction, but claims to retain until they severally attain lawful age. If he had continued to reside in this city, or upon his removal deposited tbe certificates of loan in some safe place of deposit, in all probability the present application would never have been made; but being now a non-resident, and not possessing any property or estate within this jurisdiction, it is not surprising that the guardian should seek to have the small estate of her children returned to her, or placed within the control of the court. And this we think should be done. A guardian is but a trustee, and where he deposits with, or surrenders to, another the trust property, either as his surety or a stranger to the trust, such third person becomes a constructive trustee, and the trust property may be followed in like manner as other trust property, by a court of equity, into whosoever’s hands it may be, with notice of the trust. Particularly will this be the case where the trust estate is about to be removed, or has been removed, out of the jurisdiction. And not only will such constructive trustee be held, accountable therefor, but compelled to return and redeliver the trust property to the legal trustee: Story’s Equity §§ 1257, 1266 ; Perry on Trusts, §§ 217, 241, 245 ; Abbotfs Executors v. Reeves, -13 Wright 494; Act of 1874, supra; Mussleman’s Appeal, 15 P. F. Smith 480; and Bell’s Appeal, 21 Ibid. 465 are instances of the jurisdiction of the Orphans’ Court against third persons dealing with property belonging to estates of decedents. As early as 2 Ash mead 448, In re Petition of Getts, a guardian had absented himself from the state and appointed an agent to manage the ward’s estate. Judge King held that the Orphans’ Court had power to compel the agent to file and settle an account; that the novelty of the application furnished no reason for its refusal; and under the circumstances, to prevent a failure of justice, he granted a citation. And in Hopkins’ Estate, 11 Phil. Rep. 45, we held, following Musselman’s Appeal, supra, “ that persons are amenable to the jurisdiction oí this court, either because they are parties having an interest in the subject-matter of a proceeding in it, or because they are under official obligation to it, or because they are sureties or parties to bonds or recognizances.”</p> <p>We therefore think it clear that we have undoubted authority to interfere in behalf of the petitioner. While the defendant may with good reason doubt the propriety of delivering the investments to the guardian, yet he has no authority to remove or detain the same out of the jurisdiction. He will be protected against personal liability by the guardian being required to enter additional security. Purdon 453, pi. 234.</p> <p>We therefore order and direct the defendant to forthwith surrender and deliver to the petitioner, the four bonds of the seven-thirty loan of the United States, for one hundred dollars each, being the estate of the minors received by him from petitioner, together-with all interest collected since the last payment of interest to the petitioner. And in case said loan has been called in and paid off, then to pay to the petitioner the sum of four hundred dollars, the principal thereof, with interest thereon, as stated; additional security therefor to be first entered by petitioner in the sum of six hundred dollars, to be approved by the court. Should such security be not entered, the defendant is directed to surrender and deliver said loan, or pay the principal thereof, with interest, into the depository of the court, subject to its further order.</p> <p>The respondent thereupon took this appeal, assigning for error the above decree.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1882, No. 125.</p> <p>Case, by Phineas M. Barber and Ambrose B. Henderson, trading as P. M. Barber & Co., against the Erie City Iron Works, to recover damages for the destruction of plaintiffs’ mill by the explosion of a boiler, which was alleged to have been defectively constructed by defendants. Plea, not guilty.</p> <p>The plaintiffs’ narr. was in three counts, and was substantially as follows:—</p> <p>The first count set forth that the plaintiffs employed the defendants to construct and build a'boiler of certain size and material in the plaintiffs’ lumber mill, it then proceeded to allege that “the said boiler was carelessly, negligently, and improperly made of an inferior quality of iron, to wit, C. H. iron, and not of flange iron,” and concluded by alleging the destruction of their mill in consequence thereof.</p> <p>The second count alleged the same, with the addition that the iron was of less thickness than'contracted for.</p> <p>The third count, after re-asserting the foregoing facts, proceeded as follows: “ And the said plaintiffs say that afterwards, to wit, on the day and year aforesaid the said defendants, at the city aforesaid, made a certain boiler, which said boiler was made and -represented to be made of C. H. iron, and not of flange iron, and the said plaintiff avers that the said defendants falsely and maliciously represented ' to said plaintiffs that the said boiler so made and constructed and delivered was in every respect as good as the boiler so ordered as aforesaid, and would safely carry one hundred and twenty pounds of steam. And that the only difference between the said boilers was in a name. That the said plaintiffs, relying upon the said representations as aforesaid, set up the said boiler in their said lumber, mill. And the said plaintiffs further say that the said boiler was carelessly, negligently, and improperly made of poor, inferior, and worthless iron, and of less than tliree-eighths of an inch thick, and not as warranted and represented by the said defendants, concluding with the allegation of damage done by reason thereof.</p> <p>On the trial, before Allison, P. J., the following facts appeared:—</p> <p>In the month of January, 1874- -the plaintiffs, Barber. & Henderson, who owned a lumber 'mill, desired to replace a worn-out steam boiler in their establishment with a new one. The senior partner came to Philadelphia, went to the place of business of one Isaac H. Shearman, the agent of the defendant, and made a contract with him as the representative of the defendant, to furnish a boiler in accordance with certain specifications, among which it was provided that the boiler should be made of “ flange ” iron of tbree-eightlis of an inch in thickness, and should be sufficient to carry with safety 120 pounds of steam. The purpose for which the boiler was intended was also mentioned. After some further negotiations, the agreement was concluded, and the boiler ordered, and in due course of time shipped from the defendants’ works to the plaintiffs’ mill. Upon inspection, it was then found to have been constructed of materials and in a manner that were at variance with the specifications. Instead of being made of “ flange ” iron, the material used was C. H. No. 1; instead of being three-eighths of an inch in thickness, it proved it to be only five-sixteenths of an inch ; the maximum pressure which the boiler would safely bear was also shown to have been less than one hundred pounds.</p> <p>Upon this discovery, Barber went at once to Philadelphia, to Shearman’s office, where he mot Selden, the president of the defendant company. According to the testimony of the former, he told Selden that his company had not given him (Barber) the boiler which he had contracted for. Selden acknowledged this, but assured Barber, “ upon his reputation as a boiler-maker and a gentleman, that the boiler was equal in every respect, and superior in some respects,” for the purpose intended. According to Barber’s testimony, and, at his request, Selden guaranteed the truth of these representations, but this was directly contradicted by the latter.</p> <p>On May 2nd 1874, the boiler exploded, and caused great damage to the plaintiffs’property; whereupon, in 1877, this suit was bi’ouglit.</p> <p>On the trial, Barber testified in regard to the disputed language of his interview with Selden as follows : — “ 1 said to him, you have not given us the boiler you agreed to give us. He answered, Mr. Barber, that is so, it is not a flange iron boiler, but I say to you, on my reputation as a boiler-maker and as a gentleman, that the boiler we sent you is equal in every respect, and superior in some respects, for your businessto the one you ordered. I answered Mr. Selden, I know nothing about boilers; if this is all in a name, and you are willing to guarantee boiler equal in every respect to the one I contracted for, we will roll it in and use it. He answered he would guarantee it to be equal and as good in every point, and would even guarantee it better in some respects. We then accepted the boiler on this guarantee, and put it in. He said it would carry 120 pounds safely, and that it was perfectly safe, and guaranteed it equal to original agreement and specifications.”</p> <p>Defendant objected to this testimony on the ground that it sought to establish a contract which had not been declared on in the narr.</p> <p>Plaintiffs thereupon moved to amend the narr. by filing the following additional counts : —</p> <p>■ First count. That defendants were manufacturers of boilers, and were desirous that plaintiff should purchase one made by them, and thereupon represented to them that it was a good and safe boiler, and fit and proper .to be used, and could be used with safety; that said boiler was equal in quality to a boiler made of, to wit, flange iron; that plaintiffs thereupon purchased said boiler upon terms that it could be safely used in their lumber mill; breach — that defendant negligently and improperly conducted itself in selling, preparing, and manufacturing said boiler ; that it was dangerous, .defective, and wholly unfit and unsafe to use, and afterwards exploded, &c.</p> <p>Second count. That defendants being desirous plaintiffs should purchase a boiler of their manufacture, “ fraudulently, falsely, and deceitfully stated that said boiler was safe and fit for use, and was of as good quality as a boiler made of, to wit, flange iron ; that plaintiffs believing this, purchased said boiler and placed it in their mill; that said boiler was greatly inferior to one made of flange iron, and was totally unfit and unsafe for use, as defendants knew, and said boiler did, by reason of the premises, explode,’-’ etc. . ■</p> <p>Third count. That defendants, the manufacturers, being desirous that plaintiffs should purchase one of their boilers for use in plaintiffs’ mill, in consideration of said purchase warranted said boiler “ to be equal to, to wit, flange iron, and to be entirely fit and safe for use that plaintiffs, relying on said warranty, purchased said boiler for use in said mill; but defendant was guilty of a breach of duty, deceit, and negligence in so as aforesaid warranting said boiler, because said boiler was, on the contrary, not equal'to flange iron, and was entirely unsafe and unfit for use, of which defendants had notice ; that plaintiffs, confiding in said warranty, used said boiler in their mill, where said boiler, by reason of the premises, exploded, etc.</p> <p>The defendants objected to the filing of- these amendments (1) because they set forth a different cause of action than that declared on in their original narr.; and (2) because the statute of limitations had run against the claim set forth in the amendments.</p> <p>The judge overruled the objections and allowed the amendments ; but permitted the defendants to file the additional plea of the statute of limitations. Exception. The defendants submitted, inter alia, certain points, which, with the answers thereto, were as follows : —</p> <p>6. The.language testified to by the plaintiff Barber as having been used.by Mr. Selden, rises no higher than representations as to an article which the plaintiffs admittedly were buying after inspection, and does not create a definite contract, of guarantee with the plaintiffs.</p> <p>Answer. This point I decline to affirm. On the contrary, I say to yon, if you find that as an inducement to' accept a boiler, which was not according to the contract, the president of the company defendant, said to Barber, and had authority to say it in behalf of the company, that which is set out in this point, it amounts to a contract of guarantee. It is a warranty that the article was that which he represented, equal to and in some respects better for plaintiff’s use than the boiler which he had ordered. Such representation rises higher than a mere representation of the quality of the article.</p> <p>7. The true measure of damage in this case is the difference between the value of this mill and its contents immediately before and after the explosion ; as the evidence does not show these values respectively to the jury, their verdict if for the plaintiffs will be for nominal damages only.</p> <p>Answer. If the jury find for the plaintiffs on the other questions raised in the trial of the cause, that this was a contract between plaintiffs and defendants, entered into through the agency of Shearman, that the boiler was not equal to the one which defendant contracted to make; that it was not of proper construction as to thickness or quality of the iron, or sufficiency of bracing; that in consequence of this, the boiler exploded, your verdict should be for the plaintiffs for such damages as you believe, under the evidence, they have sustained ; you are not restricted to giving nominal damages.</p> <p>Verdict for the plaintiffs for $8,440.26 and judgment thereon, whereupon the defendants took this writ of error, assigning for error the allowance of the amendments to the narr., and the answers to the points as above. Subsequently, three additional assignments of error were filed, complaining of the action of the court in allowing the amendments to the narr.: (1) because it caused a misjoinder of counts and introduced new matter ; (2) because it joined counts, one of which was in deceit, and the other on a warranty, and (3) because the first count of the amended narr. failed to aver a scienter.</p>

<p>Error to the Court of Common Pleas No. 2, of Philadelphia county: Of July Term 1882, No. 149.</p> <p>Case, by Frederick A. Koons, Gustavus Schwarz and Julius Schwarz, trading as Koons, Schwarz & Co., against the Western Union Telegraph Company, to recover damages for the alleged neglegent and erroneous transmission of a-telegraph dispatch. Plea, not guilty. ; '</p> <p>On the trial, before Hare, P. J., the following facts appeared : The plaintiffs were commission merchants doing business in Philadelphia, and were agents for the Little Creek Landing Canning Company, of Little Creek, Delaware, in selling their goods. On August 26th 1879, plaintiffs sent a telegraphic dispatch to James L. Heverin, a manager of said company, at Dover, Delaware, in these words: “Sold two thousand cases Bay7 View tomatoes, ninety cents. Shall we sell more ? ” On the same day plaintiffs received by telegraph a reply as follows:</p> <p>“ Dover, Delaware, 8 | 26 | 1879.</p> <p>44 Koons, Schwarz & Co.:</p> <p>44 You can sell ten thousand (10,000) more, same price.</p> <p>“ J. L. Heverin.”</p> <p>They proceeded to sell as directed on behalf of their principals, and effected large sales. On August 30th, plaintiffs were informed by Heverin by letter that he had directed them in his dispatch, to sell two thousand more, not ten thousand. Plaintiffs were unable to procure the goods to fill their contracts, except at an advanced price, by reason # whereof they lost $2,400, which sum they claimed to recover from' the telegraph company. ,</p> <p>The original message was put in evidence,’ a fac-simile whereof is printed on tb,e next page. Mr. Heverin wrote it in a store in Dover on a piece of note paper, and sent it to the telegraph office by a boy about nine'years old, to whom he read it. The operator testified : “ A boy by name of John Head brought this messagé to the.office; he threw- the ¡message down and said : 4 Grandpap has no blanks and to please send it' as it is.’ I called him back and read it to him as follows : 4 You can sell ten thousand more, at same price.’ He said,4 That is right; that is the•'way grandpapread it.’” The message was pasted on a blank in the telegraph office in accordance with a regulation of the telegraph company7. - :</p> <p>Mr. Heverin was in.the habit of sending frequent telegraphic dispatches from Dover, and the operator was familiar with his’ handwriting. !</p> <p>■ At the close of the evidence counsel for the defendant presented the following points for charge, all which the judge reserved, viz:</p> <p> </p>

<p>1. A dividing wall between two buildings in the city of Philadelphia owned by different parties, the foundations of which rest partly upon the ground of each is a party-wall. It is immaterial that the foundation is not equally laid upon the lot of each party, and that the wall itself, above the foundation, is wholly within the lot of one of the adjoining owners.</p> <p>2. In Í837, by agreement between the owners of adjoining lots, buildings were erected thereon, which, though'distinct in the interior, appeared on the outside to be a single building. The dividing wall was 18 inches in thickness, and the whole of it, except 1% inches of the foundation at one end, and %% inches of the foundation at the other end, rested upon the ground of one of the said owners. This foundation, and the lower portion of the wall resting thereon, supported the lateral thrust of a series of arches which supported the floors of both buildings. After changes of ownership of both lots, the owner of one lot removed the arches in his building and built on his ground an additional w.all abutting on the division wall to resist the lateral pressure of the airchés in.tlie other building, and to give additional support to his own interior construction as altered. Subsequently the owner of the other building tore it down and erected a new and higher building, constructing on his ground a new wall abutting on the old division wall. He also, in building, encroached 6^ inches over the top of the old division wall, and the same distance in front of. a certain portion of it whicli did not extend to the building line. The adjoining owner thereupon filed a bill in equity against him, averring that the division wall was not a party wall, and praying that the defendant be restrained from overlapping on top or in front thereof, or from otherwise using it as a party wall:</p> <p>Held, that the wall was a party wall, and that the court below rightly dismissed the bill.</p> <p>3. Deeds must be construed with reference to party-wall legislation, and the usual description by metes, courses and distances will not be held to defeat the grantor’s right under the statute when he conveys a lot adjoining one which he continues to hold. To have the eSect of depriving him of that right, the language of the deed must imply such intent.</p>

<p>Appeal from the Court of Common Pleas No. 4, of Philadelphia county: Of July Term 1882, No. 199.</p> <p>Appeal of Sam uel J. Christian and Henry Van Beil from a decree of said court, dismissing exceptions to, and confirming the report of an auditor appointed .to audit and adjust the account of the assignee of the William Brown Building and Loan Association, and to report distribution of the balance in the hands of said assignee.</p> <p>The following facts appeared before the Auditor: The William Brown Building and Loan Association was duly incorporated December 2nd 1872. Towards the close of 1878 it appeared from its annual report that its affairs were not in a prosperóu's condition. Prior to January 1878, the association had made loans upon properties and securities of little or no value. A fimnber of stockholders had withdrawn, or given notice of their withdrawal, some of them at a meeting of directors held prior to the annual meeting for 1877, in favor of whom orders were afterwards drawn,on the treasurer according ■to the valuation of shares fixed at the annual meeting in November 1877. Others gave notice of withdrawal at a director’s meeting in December 1878, for whom no orders were drawn on the treasurer.</p> <p>At a special’ meeting of the stockholders on February 28th 1879, called for 'the purpose of devising measures for closing up the affairs of the association, after several stockholders had given notice of their intention to withdraw, “ on motion it was agreed that every stockholder be considered as giving notice to withdraw to-night, and that the committee, in connection with the officers, be intrusted to make out .a statement of the amount actually due each stockholder.” Every stockholder present voted for the motion, but some were absent.</p> <p>A number of the stockholders continued to act as such at meetings of the association held March 8th and April 4th 1879, the latter meeting being more than thirty days after the adoption of the above motion.</p> <p>An assignment for the benefit of the creditors of the association was executed May 2nd 1879.</p> <p>The charter of the association contained the following provision : — Article VII. “ Withdrawals. — Any stockholder wishing to withdraw from the association shall give at least one month’s notice to the directors, when he or she shall receive the amount paid in by him or her, first deducting his or her proportion of the expenses, and all charges, fines, etc., against him or her. In ease a number of members wish to withdraw at the same time, the first notice shall always take precedence provided, that, at no time shall more than one half of the funds in the treasury be applicable to withdrawing members without the consent of the board of directors.”</p> <p>Article X. of the printed by-laws reads as follows : “ Withdrawals. — Any stockholder who has not received a loan may withdraw from this association by giving one month’s notice to the board of directors, when he or she shall be entitled, during the first year, to receive the amount of dues actually paid in, first deducting all fines and charges, and the second year shall be allowed at the rate of six per cent, per annum in addition to the dues paid in; and thereafter the stockholders shall have the right to assess the value on said stock to enable members to withdraw. Provided, That at no time shall more than one-half of the funds in the treasury of the association be applicable to the demands of withdrawing stockholders without the consent of the board of directors.”</p> <p>There were three classes of claims presented before the Auditor. -</p> <p>First. — The claims made by the late treasurer of the association, Mr. E. F. Stewart, to be reimbursed for moneys which he had paid upon orders drawn upon him before the assignment, and which the assignee refused to allow him credit for in the settlement of his accounts as treasurer.</p> <p>Second. — The claims made by persons who held orders on the treasury for withdrawn stock, and which had been issued more than six months before the assignment was made, including therein the claims of those who gave notice of their intention to withdraw at the meeting of the directors in December 1878, moré than four months before the date of the assignment: Third. — The claims of those who were, or had been stockholders, not included in the second class.</p> <p>The Auditor first allowed the claim of the treasurer.; and the balance of the fund in his hands he awarded, pro rata, to the stockholders of the second class, on the authority of the United States. B. & L. Ass. v. Silverman, 4 Norris 394. He disallowed the claims of the stockholders of the third class on the ground that they had failed to comply with the charter, in giving notice of withdrawal from the association.</p> <p>To the report of the auditor, Christian and Yan Beil excepted, on the ground that he erred; in holding (1) that as stockholders who gave notice of their intention to withdraw, at the meeting on February 2Sth 1879, they had not given the thirty days’ notice required by the charter ; (2). that the resolution adopted at that meeting failed to make those present, creditors, after thirty days had passed; (3) that a notice of withdrawal given at a stockholders’ meeting was not a legal notice; (4) in refusing to Christian and Yan Beil a distributive share of the balance in the hands of the assignee ; or in making any distribution of said balance, unless they received a pro rata share with all who had at any time been stockholders in the association.</p> <p>These exceptions were dismissed by the court, Thayer, P. J., delivering the opinion, whereupon Christian and Van Beil took this appeal, assigning for error the dismissal of their exceptions.</p>

<p>Error to the Court of Common Pleas No. 3, of Philadelphia county : Of July Term 1882, No. 210.</p> <p>This was an action of debt, by the city of Philadelphia against the Ridge Avenue Passenger Railway Company, to recover tax upon dividends, imposed by the Act of March 8th 1872, § 3, P. L. 264.</p> <p>The cause was, by .agreement, referred to a Referee (C. Stuart Patterson, Esq.) under the provisions of the Act of June 16th 1836, and its supplements, either party to have the right to file exceptions, and take a writ of error.</p> <p>The facts of the case, and the Acts of Assembly in question, are fully recited in- the opinion of this court.</p> <p>The Referee decided (1) that the words “ capital stock ” in the Act of 1872, meant capital stock paid in, not authorized capital stock ; (2) That the defendant, having declared no single dividend in excess of six per cent, on the amount of paid-in capital stock, was not liable to any tax, under the provisions of said Act.</p> <p>On the latter point the referee reported as follows: — The construction of the taxing clause in the Act seems to be free from difficulty. The directors of the company are authorized to declare and pay dividends “ at such time or times as they may deem expedient, and the company is directed to ‘ annually’ pay a tax ‘ upon so much of any dividend declared which may exceed six per centum upon their said capital stock.’ ” The direction to pay tax “ annually ” cannot control the legislative limitation of the subject of taxation to the excess of “any dividend ” over the designated percentage of capital. The authority vested in the directors to declare and pay dividends, “ as they may deem expedient,” and the words “ any dividend ” and “ such dividend,” as used in the clauses prohibiting and making penal any impairment of capital, show that the legislature contemplated dividends, as made not necessarily annually, but at irregular intervals, whether more or less frequently than annually.</p> <p>The construction for which the plaintiff contends would require me not onlyto disregard the word “ any,” but to change “dividend” into “dividends,” and to interpolate “annual”' before dividends as a qualification thereof. I know of no rule of statutory construction which"wouid authorize this.</p> <p>Construing the Act of 1872, without reference to the prior Acts of 1858 and 1859, I cannot doubt that the legislative intent is to exempt this particular company from municipal taxation upon every several dividend which is less than six per cent, upon its capital stock. But if the taxing clauses in the charters of 1858 and 1859, which were repealed by the Act of 1872, be contrasted with the repealing Act, the argument becomes irresistible. The Girard College Passenger Railroad Company was, by its charter, authorized to declare only semi-annual dividends, and was required annually to pay tax “ whenever the dividends shall exceed six per centum on the capital stock.” The Ridge Avenue and Manayunk Passenger Railway Company was also restricted to semi-annual dividends, and was required annually to pay tax “ whenever the dividends shall exceed six per centum per annum on the capital stock.”</p> <p>The legislature, in its wisdom, has repealed those taxing clauses, and has substituted for them the third section of the Act of 1872, which has no reference to annual dividends, and which taxes only the excess over and above six per cent, on the capital stock, of “ any dividend,” when declared “ at such time as ” the directors “ may deem expedient.” To construe the Act of 1872 as the plaintiff would read it, would be legislation, not judicial construction. It maybe that .the, defendant -has acquired great privileges at the expense of the public, and that it ought to be more heavily taxed therefor. W ith that, I have no concern in this case. If the legislature has not seen proper to tax the defendant to its proper measure, courts of law cannot .correct the legislative failure of duty. Nor can a court assume that the legislature did not mean that which the words of the statute plainly indicate.</p> <p>As the defendant has not in “ any dividend ” exceeded the limit designated in the Act of 1872, I enter judgment for the defendant with costs.</p> <p>The plaintiff filed exceptions to the above findings and judgment of the Referee, which, after argument, were dismissed by the court (no opinion filed) and judgment was entered for the defendant. The plaintiff thefeúpon took this writ of error, assigning for error the dismissal of the exceptions and the entry of judgment.</p>

<p>Appeal from the Court of Common Pleas, No. 1, of Philadelphia county; In equity : Of July Term 1882, No. 217.</p> <p>Appeal of Sophia Marsden, widow, and Hannah E. Marsden, daughter, of John Marsden, deceased, from a final decree of said court, determining the ownership of certain sitares of stock, formérly the property of the decedent.</p> <p>Appeal of William 0. Marsden, executor of said John Marsden, deceased, from a portion of the same decree, determining the disposition of the income from said bonds, and their proceeds.</p> <p>The following were the material facts: John Marsden, the testator, died June 13th 1874, leaving a widow Sophia, a daughter Hannah E., and a son William C. Marsden. By his will, dated May 29th 1866, and duly proved, the testator left two small farms to his son, his household furniture to his wife Sophia, and all. the rest and residue of his estate to her for life.</p> <p>William C. Marsden was executor under the will, and took out letters June 19th 1874. At the appraisement of the. estate, six $1,000 coupon bonds of the North Penn. R. R., which were found among his securities, were claimed by Mrs. Marsden as a gift from her husband in his lifetime, and were not included in the inventory. The executor demanded these from time to time, claiming that they bélonged to the estate.</p> <p>In December'1874, Mrs. Marsden produced what she claimed to be a later will of decedent, dated March 6th 1874, under which she was sole executrix, and the whole estate, excepting the two farms, was left to her absolutely.</p> <p>William C. Marsden thereupon surrendered his letters on December 29th 1874, and the alleged later will was duly admitted to probate, and letters testamentary granted thereon to Mrs. Marsden. .. .</p> <p>In 1878, the Orphans’ Court awarded an issue to try the validity of the alleged will of 1874, and on J une 1st 1881, the jury found it to be a forgery, whereupon the letters to Mrs. Marsden were revoked, and William C. Marsden was reinstated as executor under, the will of May 29th 1866. Upon resuming his duties as executor, William C. Marsden found that the North Penn. R. R. bonds, which had not been included in Mrs. Marsden’s account as executrix, had been sold, and the proceeds invested in one hundred and twenty shares of Pennsylvania R. R. stock which were in the name of Hannah E. Marsden. On June 28th 1881, the executor filed a bill in equity against Sophia and Hannah E. Marsden, setting out the ownership of the North Penn. R. R. bonds in the decedent, and praying that, the respondents be ordered to transfer the proceeds thereof to the executor, and to account for said proceeds with interest, dividends, and options obtained thereby.</p> <p>The respondents filed an answer, setting up the ownership ■of the original bonds, in Mrs. Marsden, as a gift from her husband ; and also the Statute of Limitations.</p> <p>The opinion of the court was delivered by Biddle, J., who found that the six bonds were the property of John Marsden at his decease ; and, further, that William C. Marsden had been fraudulently dispossessed of his office of executor, by Mrs. Marsden, in producing and acting under the alleged will of 1874; and therefore, that the Statute of Limitations will not run in her favor against the executor, who had thus been prevented by her fraud from bringing his suit within six years.</p> <p>The court accordingly appointed a Master (John W. Patton, Esquire), to report an account of the balance of principal, dividend and options, with which Sophia Marsden and Hannah E. Marsden, or either of them, should be charged; and also a form of decree. The Master submitted a. report and a form of decree which set forth, that the six bonds of the North Penn. R. R. were the property of John Marsden at his death and belonged to his estate, and directed Hannah E. Marsden to surrender up the certificates for the one hundred and twenty shares of Pennsylvania R. R. stock obtained by the sale of said bonds, and have them transferred to the executor, on the books of the co npany ; and further, that Hannah and Sophia Marsden should account for the options and dividends obtained from the said one hundred and twenty shares of' stock, since -January 28th 1881, and pay the said dividends to the executor with interest from the date of the Master’s report.'</p> <p>Exceptions were filed to this report; the first of which was as follows ; That the Master “ erred in stating an account of income on the one hundred and twenty shares of stock. If the same are the estate of the decedent, there being no creditors, said income is the absolute property of said Sophia Mars-den.”</p> <p>The court entered a final decree sustaining the first exception as above, but otherwise in accordance with the decree reported by the Master. Whereupon Sophia and Hannah E. Marsden took an appeal, assigning for error the decree of the court and the finding of fact that they, or either of them, had been guilty of fraud, thus preventing the running of the Statute of Limitations.</p> <p>William 0. Marsden also appealed from that portion of the decree sustaining the first exception to the Master’s report as above, and refusing to charge the defendants with dividends and interest, as reported by the Master.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county : Of July Term 1882, No. 231.</p> <p>Appeal of Gertrude E. F. Ferry, from a decree of said court, making distribution of the estate of Francis Scoffin, deceased.</p> <p>Upon the audit of the account of the executor of Francis Scoffin, deceased, before Penrose, J., the following facts appeared : — Dr. Francis Scoffin, the testator, died on April 26th 1875, leaving a widow, S. Matilda Scoffin, and four daughters —two unmarried, Mary Louisa and Adelaide; and two married, Gertrude E. F., wife of William Ferry, and Francis M., wife of one Goodall. By his will, dated June 19th 1873, and duly proved, the testator, after directing his executors to sell his real estate and invest the proceeds, provided as follows ;—</p> <p>“1 give and bequeath my personal property which may remain unsold, the interest and dividends of the investments made in pursuance of the above, directions .... unto my beloved wife, S. Matilda, during all the term of her natural-life, to be used by her as she may think proper for her benefit and the benefit of those of my children, who may be living at the time with, and while they continue to reside with, her.</p> <p>“Should I be able to meet my annual payments in the Newark Mutual Insurance Company (called the life insurance company, Newark) until the period of my death, and my estate should realize from the said insurance company the amount of the insurance which I have effected upon my life, then, at and immediately upon the decease of my said wife, I give and bequeath unto each of my daughters who may then be married, the sum of $1,000, absolutely.....</p> <p>“ If, however, in consequence of my inability to meet my annual payments, or for any other cause, my estate should fail to realize from the said insurance company the amount of the insurance effected upon my life, then, at and immediately upon the decease of my said wife I give, devise and bequeath all my furniture which may remain unsold and the investment or investments which may have been made as aforesaid, and the residence, if any should have been purchased, and all the rest, residue and remainder of my estate (saving and excepting the sum of $500 as hereinafter bequeathed) unto such of my daughters who may then remain unmarried, or who having married shall be widowed, their heirs, executors, administrators and assigns to be equally divided between them, if more than one, share and share alike, and if only one, then to her and her heirs, executors, administrators and assigns.”</p> <p>The policy of insurance was paid to the estate; and the account filed by the executors after the death of the widow, which occurred May 4th 1881, showed a balance in their hands of $16,079.87.</p> <p>Mrs. Ferry claimed that she and Mrs. Goodall, after receiving their legacies of $1,000 each, were entitled also to share equally with their unmarried sisters in the remainder of the estate. Mrs. Goodall, however, disclaimed her right to anything except her legacy.</p> <p>The auditing judge rejected Mrs. Ferry’s claim, and after awarding to her and to Mrs. Goodall $1,000 each, distributed the balance of the estate equally between the two unmarried daughters, Mary Louisa and Adelaide.</p> <p>To this award Mrs. Ferry filed exceptions, which were dismissed by the court, Penrose, J., delivering the following opinion :</p> <p>Lord Hardwicke, in East v. Cook, 2 Ves. Sr. 30, said that it is an ordinary and common rule of construction in wills “ not to consider exactly the order of placing the words, if it would better answer the apparent intent of the testator otherwise.” The purpose and limit of this rule were ascertained by the same judge in Marlborough v. Godolphin, 2 Ves. Sr. 74 to be to attain the intent which appeared on the face of the will, but not to let in other devisees, where the persons to take are certain, and the only question respects the interest to be taken. In a case like the present, where the testator has clearly indicated his intended beneficiaries, and the proportions in which they shall take his entire property, but where a literal adherence to the order of his bequests will involve an intestacy as to the greater part of his estate, there would seem to be a clear field for the application of the rule. His design, apparent on the face of the will, was to provide for his unmarried daughters, and to make the gift to those who were married, contingent upon the receipt of the insurance moneys. It 'was uncertain at the date of the will whether these moneys would be realized. He, therefore, in one part of the instrument, disposed of his estate as it then stood, and in another gave additional legacies in case the moneys should be received. He neglected, however, in expressing it, to give the natural and logical order of his thought. That order would have been observed if he had said; “ I give to my unmarried daughters all the residue of my estate, and in case my estate shall realize the insurance upon my life, I give to each of my daughters who may be married $1,000.” If the clause in which he disposes of his whole estate be made to precede the clause which was meant to be subsidiary to it, the introductory words providing for a failure to realize the insurance moneys would be unnecessary, and might safely be rejected as surplusage. Unless we so marshal his language, the gift of the residue will be defeated, and the children who most needed his bounty, and who were evidently the chief "objects of his care, will receive less than those whose legacies were fixed at a specific sum, and limited upon a contingency.”</p> <p>Whereupon Mrs. Ferry took this appeal, assigning for error the dismissal of her exceptions and the action of the court in awarding the balance of the estate to the unmarried daughters, after payment of the legacies.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county : Of January Term 1883, Np. 47.</p> <p>Assumpsit, by Joseph J. Cummings, M.D., against Handy P. Holt, Richard Banks and John Banks, co-owners of the steam-trig J. B. Woodward.</p> <p>At the trial, before Yerres, J., the following facts appeared : — On August- 14th 1881, an explosion occurred on the steam-tug, while in the port of Philadelphia, where she belonged, by-which John Harrigan, the engineer, employed by the defendants, was scalded and. otherwise injured.</p> <p>At the request of the captain the plaintiff, a physician, dressed the injured man’s wounds. The captain then sent for a carriage and offered to send the man to a hospital, but at his own request he was taken to his home in the city, where the plaintiff continued to attend -him professionally for a period of six weeks. Plaintiff then presented his bill, for medical attendance and medicines furnished, to the owners of the trig, who refused to pay him, except for his services in dressing the man’s wounds at the scene of the accident. He then brought this suit.</p> <p>The judge charged the jury as follows :—</p> <p>“ This is a new question to me, and for its proper solution needs more time than can be given to it at this time. To put it in the course of proper determination, I charge you that the owners of a coasting vessel, such as in this case, are liable for the medical attendance to a sick seaman, liable to such attendance if taken to his home from the vessel; and that the Act of Congress relative to hospital dues does not change the law in this respect.”</p> <p>Verdict for plaintiff, for $100. Upon motion for a new trial the two judges sitting in banc, Ludlow, P. J.,.and Yerkes, J. (Finletter, J., being absent holding a court of Quarter Sessions), being divided in opinion, a new trial was refused, and judgment was entered on the verdict.</p> <p>The defendants thereupon took this writ of error, assigning for error the charge of the court, as above.</p>

<p>A mechanics’ lien for repairs, alterations and additions under the Act of August 1st 1868 (P. L. 1168), filed after the death of the debtor but ■within six mouths after the completion of the work, is not entitled to priority, over the general debts of decedent, in distribution of the proceeds of a sheriff’s sale, in'execution, of tlie premises against which such mechanics’ lien was filed.</p>

<p>• Error to the Court of Common Pleas, No. 3, of Philadelphia county : Of January Term 1883, No. 96.</p> <p>Attachment execution, by The Howard Building and Loan Association against Samuel S. Wismer, defendant, and The Philadelphia and Reading Railroad Company, garnishee.</p> <p>The judgment under which this attachment execution was issued was obtained as follows : The Eoward Building and Loan Association entered up judgment on bond and warrant of Samuel S. Wismer, June 14th 1873. In the warrant the defendant waived “ all benefit that might accrue to him by virtue of any and every law, made or to be made, to exempt the premises described in the indenture of mortgage therewith given, or of any other premises whatever, from levy and sale tinder execution or any part of the proceeds arising from the sale thereof from the payment of the moneys thereby secured, or any part thereof.” On this judgment an attachment execution was issued October 21st 1880, and the Philadelphia and Reading Railroad Company were summoned as garnishee.</p> <p>Wismer, the defendant, in this proceeding, was not served with the attachment execution; and the court allowed his claim for $300 exemption, which was made March 5th 1881. The garnishee pleaded nulla bona.</p> <p>On the trial, April 11th 1882, before Yerkes, J., the plaintiffs gave in evidence the record of a judgment ' obtained by Wismer against The Philadelphia and Reading Railroad Company, on a verdict, dated. October 20th 1880, for $500,. and plaintiff’s bill of costs $291.95, and rested.</p> <p>The garnishee proved an assignment of said verdict, and any judgment thereon, to George Junlcin; Esq., dated October 20th 1880, to secure his fees in that case, and that his fee was $250, and that none of the witnésses (whose fees were included in plaintiff’s bill) had been paid-</p> <p>The plaintiffs claimed the amount of Wismer’s verdict against the Railroad Company. $500; interest $44.17, and Wismer’s bill of costs $291.95, less $300, exemption, amounting in all to $536.12 ; and submitted the following point:</p> <p>“ That plaintiff is entitled to recover the whole amount of the verdict, interest, and plaintiff’s bill in Wismer v. Railroad Company, less the $300 claimed as exempt, and that Mr. Junkin’s fee, being less than amount of exemption claimed, is not to be deducted.” Refused. Exception.</p> <p>The judge instructed the jury to find a verdict for the plaintiff, and that there was in garnishee’s hands $286.12, subject to the point of ’ law reserved, whether plaintiff’s bill was liable to the attachment: if not, verdict to be reduced by-amount of that bill.</p> <p>Afterwards, the court in banc decided the point of law reserved, in favor of the garnishee, and entered judgment non, obstante veredicto in favor of the garnishee.</p> <p>Thereupon the plaintiffs took this writ, assigning for error, the action of the court, in allowing Wismer’s claim for exemption, in refusing the point, ■ and giving the instruction above noted, and in entering judgment for defendant- on the point of law reserved.</p>

113. The facts of this case were as follows : Matthew Van Dusen, Jr., died January 21st 1879. By his will, dated April 16th 1875, which was duly proved, he bequeathed to his wife Mary Van Dusen, the net income of his entire estate for her life or widowhood, and, upon her death or marriage, he directed his executors to apply a portion of it to the support of his minor children, and to invest the balance for the benefit of the estate.

In the Supreme Court of Pennsylvania: Of January Term 1883, No. 213. Rule to show cause why a writ of peremptory mandamus should not issue, directed to the honorable the Judges of the Orphans’ Court of Philadelphia county, commanding them to certify the record in certain proceedings had before them, in the matter of tlie estate of M. C. Ware, deceased, and the definitive decree of said court therein, in obedience to a writ of certiorari heretofore issued from this court.

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1883, No. 118.</p> <p>Covenant, by Catharine A: Pollock, against the United States Mutual Accident Association, of the city of New York, upon a policy of insurance issued by the said company upon the life of Henry Pollock, the plaintiff’s husband.</p> <p>The parties agreed upon a case stated which set forth substantially the following facts: The corporation defendant was chartered under the laws of New York ; the object of the association being the accumulation of a fimd for the mutual benefit of its members, or their beneficiaries, “ who shall have sustained, while members of the association, bodily injuries, whether fatal or disabling, effected through or by external violent and accidental means.” Said company issued a certificate or policy to Henry Pollock, dated March 7th 1882, the principal sum to be raised by assessment from members in his class, not exceeding $5,000, to be paid to his wife, Catharine Pollock, within sixty days after due proof that said insured “ shall have sustained bodily injuries effected through external violent and accidental means .... and such injuries alone shall have occasioned death within ninety- days from the happening thereof .... Provided that benefits under this certificate shall not extend to any bodily injury of which there shall be no external and visible sign; nor to any bodily injury happening directly or indirectly in consequence of disease .... or by the taking of poison . . . And no claim shall be made under this certificate when the death or injury may have been caused by . . . suicide, felonious or otherwise, sane or insane ... or self-inflicted injuries . . . The member is required to use all due diligence for personal safety and protection.”</p> <p>The case stated further set forth': “ That the said Henry Pollock was by occupation a commercial traveler, N and sold goods for his father, John Pollock, who is a brush manufacturer in the borough of Easton, Pennsylvania, the deceased son being a resident of the same place.</p> <p>“ That on Saturday, April loth 1882, the said Henry Pollock, being upon a business trip, and having reached the borough of White Haven, Penna., went into a store in that place, kept by a man named John S. Parke, to whom said Pollock was in the habit of selling brushes. That the said Parke, who keeps a general country store, also buys from the small distillers in the neighborhood the essential oils of birch and wintergreen. That while the said Pollock was in the store and engaged in showing his samples to the proprietor, a distiller by the name of John' S. Keiper came in with a can of £ birch oil ’ to sell to Parke. Parke left Pollock, and taking the can ef oil from Keiper to examine the same, poured a tumbler about two-thirds full, held it up to the light and then set it down upon the counter. Parke then said,£ Come, boys, I will set them up,’ or £ Now I will treat, won’t you take something V and Pollock thereupon took the glass, either from Parke’s hand or from the counter, and said, ‘ 1 don’t care if I do;’ whereupon Pollock tasted it, then took a good swallow. Then Keiper said,£ Young man, you have killed yourself!’ Pollock laughed and said that ‘ he had often drank it on the Pocono Mountain, where they made it,’ and with this remark drank the balance of the oil.</p> <p>“That during the previous summer, to wit, the summer of 1881, the said Henry Pollock, together with one Robert Martin, a brush manufactui’er of New York city, and Allen Carpenter, a dry goods merchant of Easton, Pa., and the families of the three named, had boarded on the Pocono Mountains in Monroe county, at a public house kept by a man named Peter Mervine ; that in close proximity to the hotel where the party was staying there was a distillery, operated by a son of the proprietor named above, where the essential oil of birch was manufactured; that the said Pollock and the other members of the party, including ladies and children, frequently drank at this distillery £ the milk of birch,’ or ‘lighten,’ which is the water through which the oil passes in the process of distilling, and which in' color, smell and general appearance can hardly be distinguished from the genuine £ oil of birch.’</p> <p>“ That after the said Pollock had drank the ‘ birch oil,’ as hereinbefore described, he remained in the store of the said Parke for from one hour to two hours, and after selling some goods, left the store, having remarked to. Parke that he would soon call and see him at his (Parke’s) new store at Weatherly, Pa. That while in Parke’s store, after having drank the oil, Pollock was asked ‘ how he felt on the oil,’ and he answered, ‘ all right.’</p> <p>“ That after the said Pollock left Parke’s store he went to the hotel, sent the hostler for his samples, and afterwards took the 3 p. m. train for Easton, his home. That he arrived at the Lehigh Valley Railroad Company’s depot at South Easton at about 6.25 p. m., and rode in the omnibus which carries passengers to and from that depot, to his house on Front street, in the borough of Easton, a distance of about one-half mile: that during the ride over to town he told the driver ‘to hurry up, that he was sick ;’ that he was taken violently ill as soon as he got into the house ; that Dr. Isaac Ott, the family physician, was sent for and attended him, and that subsequently Dr. Traill Green was called in to assist him ; that all that medical skill could do to save his life was done, but without avail, as the said Pollock died the next day, to wit, on Sunday, April 16th 1882, at 11 a. m.</p> <p>“ That the death of the said Pollock was caused solely by the ‘ oil of birch’ which he had taken by mistake, the said oil being a deadly poison ; that the said ‘ oil of birch ’ was taken by the said Pollock without any intention of taking life, and without the knowledge by the said Pollock of its deadly effect, he having mistaken it for ‘ lighten,.’ or the ‘ milk of birch,’ which he had drank scores of times before, and which is a harmless beverage.</p> <p>“ That due notice of the death of the said Pollock was served upon the association, defendant, at its place of business in the city of New York on Monday, the 17th day of April, 1882, and that satisfactory proof of the fact and cause of death have been furnished to the managers of the said association.</p> <p>“ If the conrt be of the opinion that the death of the said Pollock was such an accidental death as is intended to be covered by the certificate of membership hereinbefore referred to, then judgment to be entered for the plaintiff for the sum of five thousand dollars, with interest thereon from the fifteenth day of June, a. d. 1882, but if not, then judgment to be entered for the defendant. The costs to follow the judgment, and either party reserving the right to sue' out a writ of error therein.”</p> <p>The court, in an opinion by Ludlow, P. J., entered judgment for the defendant on the case stated, whereupon the plaintiff took this writ of error, assigning for error, said judgment.</p>

Appeals from the Orphans’ Court of Philadelphia county: Of January Term 1883, Nos. 149, 142, and 150. These were three separate appeals from a decree of the Orphans’ Court of Philadelphia county, in the matter of the adjudication of the account of Elliston P. Morris, surviving executor of the will of Perot Lardner, deceased, and the distribution of the balance in the hands of the accountant.

<p>1. Where one of two executors, upon the filing and confirmation of his account, and payment of all the assets in his hands to his co-executor, was regularly discharged from his office of executor, by a decree of the Orphans’ Court, and such decree has remained unchallenged for a period of nearly twenty years, during which both executors died, it is too late for a party interested in the estaté to require the executors of such discharged executor to file a further account.</p> <p>2. The fact that the petitioner seeking such further account had not attained her majority at the date of said decree of discharge, does not give'her such right to a further account, especially where it appeared that she was above the'iige of fourteen years, and was married at .the-date-of said decree, and both she and her husband were parties to and were represented by counsel in the proceedings’in which such decree was made, and no fraud in the procurement thereof is shown.</p>

<p>Error to the Court of Common Pleas No. 2, of Philadelphia county: Of January Term 1883, No. 137.</p> <p>Debt, by Leonard Burkhard, Sr., administrator of Leonard Burkhard, Jr., detíeased, against the Travellers’ Insurance Co., of Hartford, Connecticut, upon a policy or ticket of accident insurance, issued to the said Leonard Burkhard, Jr., in the sum of $3,000.</p> <p>The policy contained, inter alia, the following clauses: “ Provided always that this insurance shall not extend to any case . . . when the death or injury may have happened in consequence of . . . voluntary exposure to unnecessary danger, hazard or perilous adventure. . . . Walking or being on the road-bed or bridge of .any railway are hazards not contemplated or covered by this contract, and no sum will be paid for disability or loss of life in consequence of such exposure or while thus exposed.”</p> <p>The case was tried by agreement, under the provisions of the Act of 1871, before Hare, P. J., whose findings of fact were as follows:</p> <p>“ The deceased, Leonard Burkhard, was on his way through Indiana to Louisville, Kentucky, via the Ohio and Mississippi Railway. The train was stopped on the railway bridge across the Ohio by the opening of the drawbridge, and Burkhard rose from, his seat, went to the front platform, stepped off it to the railway track, fell through a hole caused by the removal of some of the planks with a view to repairs, and received a fatal injury which caused his death.”</p> <p>(Other facts which appeared from the evidence, which was brought up with the record, are referred to in the opinion of the Supreme Court.)</p> <p>The plaintiff submitted, inter alia, the following points :</p> <p>1. Should your honor believe from the evidence adduced, that plaintiff’s decedent was half asleep or drowsy at the time of the accident, and that he was under the impression that he had arrived at the Louisville depot, his destination, and left the coach to see whether his surmises were correct, plaintiff is entitled to recover.</p> <p>Answer. I hold that it is not necessary to enter on the consideration of this, because I find that there is no sufficient evidence that the plaintiff was half asleep or drowsy at the time of the accident, or that he was under the impression that he had arrived at his destination and left the car to see whether his surmises wore correct.</p> <p>2. Should you, however, believe from the evidence adduced, that when plaintiff’s decedent left the car he had full control of his senses, and merely left the same because the train had stopped, as it is customary for male passengers to do on long journeys, intending to return when notified by the railroad officials or engineer’s whistle, and that he was not told to remain in the car and had no knowledge of the dangerous condition of the bridge; it was not such a voluntary exposure to unnecessary danger as will excuse the defendants and relieve them from liability under the contract of insurance and the law applicable to this class of cases.</p> <p>Answer. Declined.</p> <p>His Honor’s conclusions of law were as follows :</p> <p>[The defendants would consequently be liable were it not that the policy contains two clauses — one, that the insured shall not voluntarily expose himself to danger; the other, that he shall not be on a railway track or bridge. Both these conditions were, in my opinion, broken by Leonard Burkhard. To leave a railway train in the obscurity of the night while it is standing on a railway track over a river is certainly an exposure to danger, which, if not uncommon among the travelling community, is clearly “ voluntary ” within the meaning of the policy; nor can there be a reasonable doubt that deceased violated the prohibition against being on the track or bridge, although his stay was momentary and he fell immediately through into the river.]</p> <p>It was, indeed, contended that Burkhard had been asleep a short time previously, and might not have known what he was doing ; but if such an excuse could avail under any circumstances [it is not sustained by the evidence, because the deceased was roused by the conductor, went to the water-closet, came back and seated himself before the train arrived at the bridge, and was pi-esumably in full possession of his faculties when he again rose a few minutes afterwai-ds and proceeded to the platform as above stated.]</p> <p>I find the above facts on the evidence as laid before me, and that the plaintiff is not entitled to recover.</p> <p>Exceptions filed by the plaintiff to the above decision were overruled by the court, and judgment was entered in favor of the defendant, whereupon the plaintiff took this writ of error, assigning for error the dismissing of said exceptions, which were to the answers to the above points, to the portions of the decision above quoted within brackets, and to the strict construction of the condition in the policy against “ voluntary exposure to unnecessary danger,” instead of construing the same liberally in favor of the assured.</p>

<p>1. In a suit by a broker against a corporation to recover commissions, he must establish his employment by a competent party authorized to bind the corporation, or prove a subsequent knowledge of, adoption and ratification of his services by the corporation.</p> <p>2. Where a by-law gives the president of a corporation “the generabi charge and direction of the business of the company, as well as all matters connected with the interests and objects of the corporation,” that does not include the authority to do an act, which, by another by-law, is expressly given to a separate committee.</p> <p>3. The president of a corporation, without the knowledge or consent of the finance committee, to whom was given the power to “ make arrangements for providing the necessary funds for meeting all liabilities of the company, and report to the board any suggestion they may consider advisable for paying off or discharging any of the permanent indebtedness of the company,” employed a broker to procure a party to pay off an existing ground-rent upon the company’s property, and take another security at a less rate of interest. After such a party had been procured, the president employed a sec.ond broker to notify the original holders that unless they reduced the rate of the ground-rent, it would be extinguished. Upon the holders agreeing to reduce the rate, the matter was then, for the first time, brought before the board and ratified, nothing being said about the employment of the first broker. In an action by him for his commissions, the court below allowed the jury to determine whether there was such an agreement between the president and the broker, and incidentally the question whether the company, by accepting the benefits of this broker’s services, did not ratify his employment.</p> <p>Held, that the president having no power to make such a contract, it was error to allow the jury to determine whether there was a ratification when there was no evidence that the facts were ever communicated to the board, or that they had knowledge of or assented to the acts alleged to have been done for the company’s benefit.</p>

<p>Error to the Court of Common Pleas of Chester eo'wnty: Of July Term 1882, No. 80. .</p> <p>Assumpsit, by William B. Blakeslee,M. D., against the Directors of the Poor and of the House of Employment for the county of Chester. Plea, non assumpsit.</p> <p>On the trial, before Futhey', P. J., the following facts ap-* peared : On November 13th 1877, John Mullin, a day laborer at a rolling mill in Coatesviíle, met with an accident while at work, whereby one of his legs was broken. The plaintiff, a physician and surgeon, was called in and attended Mullin professionally until December 31st 1877, at Muffin’s own residence. The plaintiff had formerly attended him. and been paid by him. After Muffin’s recovery, plaintiff sent him his biff for services, which remained unpaid; and in July 1881, Muffin told the plaintiff that owing to his poverty he was unable to pay it or any part of- it. Plaintiff then within ten days presented his biff to the directors of the poor, who refused-to pay it, whereupon plaintiff brought this suit.</p> <p>Plaintiff offered to .prove “that it had been customary, in the business relations between the directors of the poor and the plaintiff, in emergency cases, to settle the biffs with him whenever those biffs were presented, irrespective of the time.”Objected to; objection sustained ; exception.</p> <p>The defendants offered in evidence the rules and regulations of the Chester County Alms House, pertaining to outdoor relief, approved by the Court of Common Pleas, February 20th 1876, one of which provided as follows :</p> <p>“ 2. To entitle any person to pay for medical attendance or other relief furnished to paupers in cases of emergency, the claimant must notify one of the directors, or their steward, of the case, in writing, within three weeks after the first attendance or relief has been rendered to the pauper, and also of the earliest occasion the pauper can safely be reirioved to the Alms House. . Provided, This rule shall not apply when the pecuniary circumstances of the individual relieved are not known to the physician or other person furnishing such relief. And when the circumstances of the individual relieved shall become known .to the physician or other person after the attendance or other services have commenced, notice as aforesaid shall be given within three weeks after obtaining such knowledge.”</p> <p>Objected to, because the directors had no autliority to make rules restricting their liability under the Act of Assembly. Objection overruled; exception.</p> <p>The plaintiff presented, inter alia, the following points, which the court declined to affirm, viz. :—</p> <p>2. “If the jury believe that at the time the services were rendered by the plaintiff, John Mullin was a person entitled to relief from the county, and that the plaintiff was ignorant of that fact, the plaintiff is entitled to recover, even although the jury believe that he did not notify the directors of the case within three weeks after obtaining such knowledge.”</p> <p>3. “If the jury believe that this was a ease of emergency, and that the'patient could not have, been safely removed to the Alms House before treatment, the plaintiff is entitled to recover, even although the jury believe that he had knowledge of the patient’s circumstances -at the time he was called in, and did not notify the directors of the case within three weeks thereafter.”</p> <p>4. “ The defendants had no power conferred upon them by law to make the rule-relating to notice, and, therefore, it is not binding upon the plaintiff.”</p> <p>The court charged the jury, inter alia, as follows :—</p> <p>“ In view of the evidence that has been given in the case, I instruct you that if the plaintiff intended to charge the county with the expense of his medical attendance upon John Mullin, he should have informed himself, within a reasonable time after the accident, as to whether he was a person entitled to relief, and to have so notified the directors of the poor, if he found Such to be the case ; but-not having given this notice until July or August, 1881, a period of three and a half years after the patient’s recovery, it was an unreasonable length of time, and that being the fact, he did not comply with the rulé requiring that when the circumstances of a patient entitling him to relier become known, notice should, be given.to the directors of the poor, or their steward, within three weeks after obtaining such knowledge.”</p> <p>Yerdict and judgment for the defendants, whereupon the plaintiff..took this writ of error, assigning for error the rejection of the plaintiff’s offer.of evidence : the admission of the rules and regulations of the directors, the refusal of the plaintiff’s points, as above,, and the portion of the .charge-above, quoted.</p>

<p>Error to the Court of Common Pleas of Chester county : Of January Term 1883, No. 37.</p> <p>Covenant, by Oliver Evans against The Coventry Mutual Live Stock Insurance Association of Chester county, upon a policy of insurance to recover the amount insured on tire life of a horse belonging to plaintiff. Pleas, nil debet, non infregit conventionem.</p> <p>The constitution and by-laws of the association, which were printed on the policy, contained, inter alia, provisions: (§ 1) that the business of the association shall be “ confined to the counties of Chester, Montgomery and Berks;” (§ 5) that no policy should be issued on “ horses kept for livery stable purposes ;” (§ 8) that a member sustaining a loss “shall give notice within 24 hours from the time of the loss, to three members of the association ;” and (§ 14) that suits at law may be prosecuted “ after the association is duly notified of such loss.”</p> <p>On the trial, before Futhey, P. J., the facts appeared to be as follows : — On April 23d 1879, plaintiff insured his two farm horses in the association defendant. On May 2d 1880, plaintiff took the horses to Philadelphia to sell them, and left them at livery and sale stables in charge of his brother, Dr. Evans. On June 25th 1880, one of tlxe horses died. Defendants claimed that the horses had previously been purchased by the Adams Express Company; the evidence on this point tended to show that on June 5th 1880, the express company with a view to purchase the horses took them on three days trial, and kept one, but within the three days notified Dr. Evans that the other horse was sick and the company declined to keep him. Evans prevailed on the express company to permit the horse to remain at their stables, where he was attended by a veterinary surgeon employed by Evans, and died June 25th 1880.</p> <p>Dr. Evans notified the plaintiff by letter on June 26th that the horse was dead, but plaintiff failed to notify three managers of the association, within 21 hours after receipt of the letter, of the loss. About two weeks afterwards he made claim, and the association at a special meeting held September 27th declined to pay the claim, of which they formally notified plaintiff in writing on October 1st 1880.</p> <p>The defendant presented the following points :</p> <p>1. “If the jury believe that he took the horse to Philadelphia and kept him there in the William Penn, Great Western and other stables, over a month, and materially increased the risk of disease and death, the plaintiff cannot recover.” Answer. This point is affirmed.</p> <p>2. “ As the business of the Coventry Mutual Insurance Company is, by its section 1 of the constitution thereof, confined to the counties of Chester, Montgomery and Berks, the plaintiff, a member thereof, and bound by its constitution and by-laws, cannot recover the value of this horse which had been over a month in Philadelphia, for the purpose of sale.” Answer. This point has been fully answered in the' general charge, and I need not add anything further to the instructions I have given you.</p> <p>3. “ The plaintiff not having complied with the provision of section 8 of the constitution, is not entitled to recover.”</p> <p>4. “ The plaintiff, not having complied with section 14 of the constitution, is not entitled to maintain this action.”</p> <p>These two points will be reserved for future consideration; but you will determine the fact involved in them in relation to the giving of the notice, in accordance with my previous instructions.</p> <p>5. “If the jury believe that this horse was sold to the Adams Express Company, the plaintiff is not entitled to recover.”</p> <p>6. “ If the jury believe the evidence, this horse was sold to the Adams Express Company, and the plaintiff, not being the owner of him at the time of his death, is not entitled to recover.”</p> <p>These points have also been fully answered in the general charge, and I need not repeat the instructions I have given you.</p> <p>7. “ Under the evidence in the cause, the plaintiff is not entitled to recover.”</p> <p>I cannot affirm this point, inasmuch as there is evidence for your consideration which I cannot take away from the jury.</p> <p>The court charged the jury, in substance, that the plaintiff had a right to take the horse to Philadelphia, but if he negli-' gently permitted it to remain an undue time in extensive stabies whereby the risk of disease was materially increased, he could not recover; that a strict compliance with the charter provision for 2i hours’ notice was not a condition precedent, and-failure to comply with it was not a bar to recovery, provided the jury find the plaintiff notified the company within a reasonable time; that if the horse’s illness was caused by the fault of the Adams Express Company while they had him on three days trial, the plaintiff could not recover, but if it was not the fault of the Adams Express Company, who notified plaintiff’s agent within the three days that they declined to purchase, then the horse remained the property of the plaintiff and covered by the insurance.</p> <p>Verdict for the plaintiff for $162.97. The court subsequently disaffirmed the two points reserved, and entered judgment on the verdict.</p> <p>The defendant took this writ of error, assigning for error the answers to, and refusal of their points, and the instructions of the court as given in substance above.</p>

<p>Appeal from and certiorari to the Court of Common Pleas of Chester county: Of January Term 1883, No. 115.</p> <p>Appeal of John Jones from a decree of said court confirming the final report of an auditor, making distribution of the balance in the hands of a receiver, appointed by the court in an equitable proceeding between certain partners, and ordering payment in accordance.therewith.</p> <p>Before the Auditor (Alfred B. Reid, Esq.) the following facts appeared: Robert Preston was the owner of a certain woollen mill in Chester county and of land attached thereto, which was encumbered with liens. On December 31st 1878, he entered into partnership with one Firth, and the business of manufacturing woollen goods was carried on by them, under the firm name of “ Robert Preston.” The stock and machinery in the mill, the mill building and water power and the other real estate, became by virtue of the articles, partnership property.</p> <p>In 1880 the partners disagreed, and Preston excluded Firth from the premises and thereafter conducted the business himself ; and in January following he effected an insurance on the stock and machinery in the mill. ■</p> <p>The firm failed, and on February 12th 1881, Preston executed an individual assignment, intending to convey all of said real and personal property, and the business was then discontinued.</p> <p>On June 1st 1881, the mills were destroyed by fire ; and, in pursuance of proceedings instituted by Firth, a receiver was appointed on the 22d of the same month.</p> <p>Immediately after the fire, Preston adjusted one of the policies of insurance (the other having been assigned by him to an individual creditor) and received $1500 from the company. Of -this, he was afterwards compelled to pay $1300 to the receiver.</p> <p>At the time of the appointment of the receiver, there were growing on the land attached to the mill, wheat, corn and grass, and there was in the ruins of the mill, a quantity of old iron, the remnants of the machinery, left after the fire.</p> <p>The receiver sold the old iron and the crops, the wheat and grass as they stood in the fields : and the assets thus in his hands as well as the insurance money, were claimed by the operatives in the mills, under the Act of April 9th 1872, in payment of wages due them for labor performed within six months prior to February 12th 1881, when the mills stopped ; and also by the lien creditors.</p> <p>The Auditor awarded the entire fund to the wages claimants ; but on exceptions filed, the court modified the auditor’s report, by allowing to Jones, who was the first lien creditor, the proceeds of the old iron and of the grass, and entered a decree accordingly, Futi-iey, P. J., delivering the opinion.</p> <p>Whereupon Jones took this appeal, assigning for error; (1) and (2) the decree of the court, in awarding the proceeds of the sale of the corn and wheat to the wages claimants ; and (3) and (4) in awarding to them the money realized on the policy of insurance.</p>

<p>1. A legacy is to be taken as contingent or vested, just as the contingency, if any, is annexed to the gift or to the payment of it.</p> <p>2. Equitable merger or extinguishment of independent rights owned by the same person, is largely a question of intent, actual or presumed, and when no intent is proven or apparent, the principle may or may not be deemed to attach, just as merger is or is not to the interest of the owner of the several and'independent rights. ■</p> <p>3. A testator devised his estate to his four sons, subject to the payment, inter alia, of interest on a legacy of $1800 to his daughter for her life, “ which interest is her full legacy and if she die leaving issue said $1800 to be paid by the four sons to such issue, but if she die without issue, said $1800 to be and remain the property of the four sons. One of the sons, John, conveyed his interest in the lands charged with the legacy, and afterwards died, during the lifetime of testator’s said daughter. The daughter afterwards died without issue :</p> <p>Held, (1) Tiie said legacy of $1800 vested at the testator’s death, 'not only as to the daughter but as to the four sons, although whether the sons would ever come into the enjoyment of it was contingent upon the dentil of the daughter without issue.</p> <p>(2) There was no merger or extinguishment of the sons’ vested interest in the legacy, in their title to the land charged therewith ; hence John’s interest in the legacy did not pass by his said conveyance of his share of the land so charged.</p> <p>(3) After tiie death of the daughter without issue John’s representative became entitled, from the owner of the land so charged, to the share of the legacy which John would then have taken if living. ,</p>

<p>1. A mortgage creditor of a decedent whose estate is solvent, and whose land has been sold by order of the Orphans’ Court for the payment of debts, may recover interest on his accompanying bond after the confirmation of said sale and until the date of payment.</p> <p>2. AUter, if the estate were insolvent.</p>

191. Ejectment, by Owen O’Neil against Hannah Elbert, to enforce specific performance of articles of agreement whereby the defendant agreed to sell to the plaintiff a tract of land containing about tweiitv acres. Plea, not guilty. On the trial, before Futhey, P. J., the plaintiff showed title in Isaac Elbert, and put in evidence his will, proved February lltli 1882, wherein he devised the premises in question to his wife, Hannah Elbert, the defendant.

421. Case, by Jacob Jones and Mary L. Jones, his wife, in right of said wife, against The Fernwood Masonic Hall Association, and Neil McFadden, to recover damages for an alleged excessive distress. Plea, not guilty.

198. This was a summary proceeding by the chief burgess of the borough of West Chester (brought originally in the name of the Commonwealth), imposing a penalty upon the defendants, under a certain borough ordinance, for refusing to remove a portion of a building, alleged to project too far into the street. Wm. B. and Frederick D. Keid, the defendants, were citizens of West Chester, where they were owners of real and personal property.

<p>Appeal from the Orphans’ Court of Delaware county: Of July Term 1882, No. 94.</p> <p>Appeal of Friend Pyle, executor of the last will and testament of Reece Pyle, deceased, from a decree of said court, making distribution of the personal estate of said decedent, and of the proceeds of Ms realty.</p> <p>Before the Auditor appointed to make such distribution, the following facts appeared : Reece Pyle, a resident of Delaware county, died February 4th 1860, possessed of two tracts of land and certain pei-sonalty, and left surviving him Ms widow Mary Pyle and five children, Friend, Atwood, Cynetta, wife of George Oobourn, Mary, wife of R. S. Bullock, aud Anna M., wife of James M. Smith.</p> <p>In his will bearing date Mai’ch 6th 1849, the testator, after providing for the payment of his debts, continued as follows: “ I give and bequeath unto my loving wife, Mary P.yle, the use and profits of all the residue of my estate, real, personal and mixed, so long as she shall remain my widow, unmarried and single, and upon the marriage or death of Mary (my wife), whichever may happen first, then my will is that my executors, as soon after as can conveniently be done by them, are to sell and dispose of all my real and personal estate as follows, first, if my sons, Friend Pyle aud Atwood Pyle, or either of them, have a wish to have my real estate (which is in two parcels, or tracts- of land) it may be appraised to them.....each farm separately,' putting a fair valuation on each, and after such valuation, my son, Friend Pyle, to have his choice of the farms, then after the whole amount, or value of my real and personal estate is found by sale, or valuation, or both (as the case may be), then my will is: To wit:.....I give and bequeath unto my son, Atwood Pyle, $500, all the rest and residue of my estate I give and bequeath unto, and among all my children ........to be equally parted and divided among them, share and share alike, and my will is, that in case any of my. children shall depart this life before such time as the portion of him, her or them so dying shall become payable, which shall be at their several respective ages of twenty-one years. Then' in such case the portion of him, her or them, so dying, shall go and be equally divided among the survivors or survivor of them, share and share alike. Unless they so dying shall leave lawful issue, who in such case shall have the parents’ portion, provided they (the issue) shall live to be twenty-one years of age, . . . And lastly, I constitute and appoint my said wife and my son, Friend Pyle, to be executors to this my last will and testament.”</p> <p>One of the testator’s children, Anna M. Smith, died June 27th 1862, twenty-six years of age, intestate, leaving a husband James M. Smith, but no children. Mary Pyle, the widow, died November 3rd 1872. In 1873, by the advice of counsel, the estate, both real and personal, was divided as follows : The real estate was appraised according to the terms of tbe will, and taken by the two sons, one parcel by Friend at $5,000; the other by Atwood at $5,300. These amounts, together with the value of the personalty, were divided into four equal shares, and distributed among the four children then living. James M. Smith was not notified of this settlement, and made no claim for any part of the estate at this time.</p> <p>Six years afterwards, Smith took out letters of administration on his wife’s estate, and presented a petition to the Orphans’ Court, setting out the foregoing facts, and averring that he was entitled, in right of his wife, to one-fifth of testator’s estate. The Auditor to whom this claim was referred reported in favor of the petitioner, and awarded him one-fifth of the personal property, on the ground that, under the will, his wife’s interest in her father’s estate, vested in her absolutely upon her arriving at the,age of twenty-one years,’ and was not contingent on her surviving her mother ; and also one fifth of the proceeds of the real estate, holding that the will worked an equitable conversion thereof into personalty.</p> <p>Exceptions filed to this report were dismissed by the corn t; Clayton, P. J., delivering the opinion, and a decree was entered accordingly, whereupon Friend Pyle as executor took this appeal assigning for error the decree of the court.</p>

<p>Writs of error to the Court of Common Pleas of Delaware county: Of July Term 1882, Nos. 100, 101.</p> <p>Case, by William J. McClure against the Township of Aston.</p> <p>Case, by John Quigley, against the same defendant. Plea, in each case, not guilty.</p> <p>These were actions to recover damages, in the one case for injuries to a horse and wagon, and in the other for personal injuries to the plaintiff, Quigley, caused by the defective and unprotected condition of a certain road on which the plaintiffs were driving, in the township of Aston.</p> <p>The cases were tried to gether, before Clayton, P. J., when the following facts appeared : — On the forenoon of August 12th 1881, the plaintiff Quigley and one Robert McClure were driving a horse and wagon belonging to the plaintiff William J. McClure, going from Bridgewater to Rockdale, on business. At the suggestion of Quigley, who was driving, they took the shortest road, which ran for some distance by the side of and some sixteen feet above the track of a railroad. At one point the roadway was not more than eight or ten feet wide, and as they approached this point the horse, which was ordinarily a quiet animal, shied at a large rock on the side of the road and both horse and wagon fell down the embankment. The horse was killed and Quigley was injured, whereupon the present suits were brought against the township to recover damages for said injuries.</p> <p>The evidence showed that the road was originally a public road, and in 1868 that portion of it on which the accident happened had been appropriated by the' Chester Creek Railroad Company. So modi of the road as was actually required for the railroad was cut down to grade, about sixteen feet below the grade of the road, and the railroad company permitted the public to continue to travel over the unused portion of the old road. The supervisors erected guards along the embankment, and notices were posted on the fence of on signboards that the road was “ dangerous until repaired.” Some two or three years before the said accident occurred the notices and the guards at the point in question had disappeared, and had not been replaced. There was testimony that until within two or three years the township supervisors had taken charge of the road, and when complaints were made to them of its dangerous condition, they promised to make it all right, claiming at the same time, that the railroad company was responsible.</p> <p>At the time of the accident, proceedings were pending to open a new road in place of the old one.</p> <p>The defendants presented, inter alia, the following points:—</p> <p>5. The uncontradicted evidence is that the whole track as now used at that place is within the lines of the land taken possession of by the railroad company, for the use of its road, it was therefore neither the right nor the duty of the supervisors to make and maintain a road at that place, and the township is not liable in this action.</p> <p>Answer. I affirm that down to the words, “ for the use of its road,” but I cannot say that they are not liable for the consequences of this accident — not because of their failure to perform that duty, but because they did not shut up the road, and did not use guards to prevent the accident when they knew the road would be used. I therefore decline to affirm that point as stated.</p> <p>4. If the jury believe that at the place of the accident the Chester Creek Railroad Company in locating their road, had occupied the public road so as to prevent the township from making and maintaining a road for public travel without encroaching upon private property, it was the duty of the railroad company to re-locate the road, paying the necessary damages, and as the said company has not done so, it, and not the township, is liable for the injury done the plaintiff.</p> <p>Answer. 1 affirm that point down to the words, “ paying the necessary damages.” I cannot say that the township is not liable, and that the railroad company would have been liable; we are not trying the railroad company, and it is not necessary to decide whether it will be liable or not.</p> <p>The plaintiff presented, inter alia, the following point:</p> <p>1. It was the duty of the supervisors of Aston Township, to keep the road in question in such condition as to be safe and convenient for public passage, and a failure to perform their duty is such negligence and carelessness, as renders the township liable in damages for any loss resulting from such negligence, unless such loss is the result, either in whole or in part, ot' the negligence of the injured person.</p> <p>Answer. This is affirmed, if you find as I before stated, that the road was in constant use as a- public road, from the time the railroad destroyed the original track, up to the time of this accident. If you find that the supervisors of the township exercised the ordinary care of supervisors over that road, in a word, if yon find that they planted at one time guards on that road, and failed to keep them- up, I charge you that they are liable, and if yon find that those guards would have prevented the injury, I charge you that if they did not intend to accept a road given them by the railroad company, or if they did not intend the public to travel this road as a public road, it was their duty in some way to warn the unwary traveller of that intention. They should have shut up the road, or put up a conspicuous notice, that it was not a thoroughfare, then persons would travel over it at their own risk.</p> <p>The court submitted to the jury the question of contributory negligence by plaintiffs, and in the general charge, said, inter alia: — “ I charge you that if you find that this road has been permitted to be used from the time the railroad took it to the present time, and if the township has supervised that road and permitted the public to travel over it without warning, the township is liable as much as if it was a public road beyond question, and had never been interfered with or destroyed by the railroad company.”</p> <p>Yerdict for the plaintiff in each case (for McClure, $230; for Quigley, $750) and judgments thereon. The defendants took these writs of error, assigning for error, inter alia, the answers to points, as above, and the portion of the charge above cited.</p>

<p>Error to the Court of Common Pleas of Delaware county : Of January Term 1883, No. 164.</p> <p>Ejectment, by George Velott, Annie, V. Leland, Abigail Velott, Mary Velott, and Penrose Velott, against Albert P. Lewis, for a tract of land in the borough of Media. Plea, not guilty.</p> <p>On the trial, before Clayton, P. J., the plaintiffs claimed title under one Elias Worrall, deceased. The title of Elias Worrall was disputed by the defendant. The plaintiffs, in order to show title in Elias Worrall, having put in evidence the record of a deed from William Penn, proprietor, to William and Peter Taylor, dated March 3d Í681, for a large tract of land, including the premises in question, offered in evidence the record of a deed from Handle Croxton and wife to Peter Trego, dated October 10th 1734, recorded October 12th 1790, in Delaware county. This deed contained recitals of title by wills, descents and mesne conveyances, from the above mentioned William and Peter Taylor to the said Handle Croxton-, grantor.</p> <p>Defendants objected to the admission of the record of this deed, because it did not appear from the record that the deed was acknowledged or proved as required by law to entitle it to be recorded, and to render the record admissible in evidence.</p> <p>The record showed that the deed purported to be executed by the marks of Handle Croxton and Sar-ah, his wife. It was sealed and delivered in the presence of three subscribing witnesses, of whom Peter Taylor was one. It was admitted to record upon the following certificate of proof, to wit:—</p> <p>“ Delaware county, ss.</p> <p>“ Personally appeared before me, the subscriber, one of the justices of the county court of common pleas in and for said county, Nathan Taylor, of Upper Providence, in the said county, and the within written indenture, with the names Randle Croxton (his mark) and Sarah Croxton (her mark) severally signed to a seal, with the name Peter Taylor (inter alia) subscribed as a witness, being shown to him, this appearer, he, upon his solemn affirmation according to law, did declare, affirm and say he verily believes the said indenture was duly executed in the presence of the said Peter Taylor, who was this affirmant’s father; for that the name of the said Peter Taylor subscribed as a witness as aforesaid doth well agree with the handwriting of his said late father, this affirmant being well acquainted therewith ; and further this affirmant saith not.</p> <p>Given under my hand and seal this twelfth day of the tenth month, Anno Domini one thousand seven hundred and ninety.</p> <p>[l. s.] Joel Willis. Nathan Taylor.”</p> <p>Objection sustained, and offer excluded ; exception. (First assignment of error.)</p> <p>At a subsequent stage of the trial, the plaintiffs were enabled to show, from the defendant’s deeds for an adjoining portion of the tract in dispute, that defendant held the land in controversy under a title derived through the above-mentioned deed, which was recited in one of the deeds in his chain of title. Thereupon counsel were permitted by the court to read from the above deed, and though not formally admitted in evidence, it appeared to have been considered by all parties as in evidence, and was so referred to in the charge of the court.</p> <p>The plaintiffs, in this manner, deduced title to the land in controversy to Mary Worrall, mother of Elias Worrall. They further proved that Mary Worrall died intestate in 1801, leaving to survive her her husband, Peter Worrall, and seven children, of whom said Elias was one. Peter Worrall occupied the land after the death of his wife as tenant by the curtesy until about 1818, when he died, leaving a will in which he attempted to devise the said tract of land to Elias Worrall for life, and after his death to the children of a deceased son, Jonah Worrall, under whom the defendant claims.</p> <p>Elias Worrall occupied the land after the death of his father, exercising acts of ownership over it, and not accounting to his brothers and sisters for the rents, &c. His possession continued for a period of forty years, until his death in 1863, when he devised it to James D. Velott and Gordon Tullock, under whom the plaintiffs claim.</p> <p>On the death of Elias Worrall, the said children of Jonah Worrall brought ejectment against Gordon Tullock for the land in question, and recovered a verdict in their favor, to May Term 1863, No. G4, but, by inadvertence of. counsel, no judgment was entered on the verdict.</p> <p>Subsequently James D. Yelott and Gordon Tullock brought ejectment against said children of Jonah Worrall, to November Term 1863, No. 8, .in which a verdict and judgment were entered for defendants. This judgment was reversed on writ of error by the Supreme Court, and a venire facias de novo ■awarded. íhe case is reported in 13 Wright 133. On the second trial a verdict was entered in favor of the plaintiffs, James D. Yelott and Gordon Tullock. Another ejectment was then brought by the children of Jonah Worrell against Yellott and Tullock, which resulted in a verdict in favor of the plaintiffs, on August 29th 1866, on which judgment was entered.</p> <p>At the times the several ejectments above referred to were tried, the record of the above mentioned deed of 1734, from Handle Oroxton and wife, to Peter Trego, had not been discovered, owing to its having been defectively indexed in the name of Peter Fregó, instead of Peter Trego. After its discovery the present ejectment was brought, November 24th 1880.</p> <p>One of the plaintiff’s witnesses, Clayton Smith, sixty-eight years of age, being interrogated as to the condition of buildings on the premises at a former date, said he did not remember the time when a certain addition was put to the log house. ITe remembered testifying as to the matter in a former proceeding before arbitrators. The plaintiff’s counsel then offered to read to the witness what lie said on that occasion, first authenticating the notes of evidence. Objected to, because the plaintiffs cannot thus lead their own witness. Objection sustained; exception. (Second assignment of error.)</p> <p>The defendant offered in evidence the account of the executors of Peter Worrall, in the settlement of his estate, showing that Elias Worrall claimed and received a small sum of money from the executors, and that he therefore knew of the will of his said father Peter Worrall, by which Elias was devised only a life estate in the premises in question. Objected to ; objection overruled, and evidence admitted; exception. (Third assignment of error.)</p> <p>The defendant offered to show that Mordecai Lewis, his predecessor in the title, paid full value for the land in dispute, at public sale, without notice of any adverse claim of title. Objected to; objection overruled ; exception. (Fourth assignment of error.)</p> <p>The defendant offered in evidence the record of the first ejectment suit, above referred to, to May Term 1863, No. 64. Objected to, on the ground that no judgment was entered on the verdict. Objection overruled; exception. (Fifth assignment of error.)</p> <p>The defendants offered in evidence the appraisement for collateral inheritance tax of the real and personal estate of James D. Yelott, for the purpose of showing that George Yelott, one of the plaintiffs here, who was executor of James D. Yelott, did not include the premises here in dispute as part of the estate. Objected to; objection overruled; exception. (Sixth assignment of error.)</p> <p>The defendant offered in evidence the exemplification of record of a lease of the premises in dispute from Randle Croxton and wife to William Carter, dated January 30th 1724, executed by the lessors by their marks, and witnessed by a subscribing witness, but the record did not show any proof or acknowledgment of the instrument.</p> <p>Also the record of a deed between the same parties, to which was prefixed a recital of acknowledgment by the grantors before Isaac Taylor, a justice of the peace of Chester eoun ty, but without a certificate thereof by said justice.</p> <p>Plaintiff’s counsel objected to the admission of said documents, for want of acknowledgment or due proof of execution ; Objection overruled ; exception. (Seventh assignment of error.)</p> <p>Defendants then offered to prove that at the date of the recordingof said instruments (1724) it was the custom to record all deeds in the same manner that these were, viz: with a mere recital of the acknowledgment, without recording the certificate of acknowledgment. Objected to; objected overruled; exception. (Ninth assignment of error.)</p> <p>The plaintiffs presented, inter alia, the following point:—</p> <p>1. If the jury believe that under the evidence, Elias Worrall entered into the property in question at the death of his father as heir of his mother, and continued in exclusive possession until his death, in 18fi2, exercising acts of ownership over the property, such as cutting timber and selling it, making permanent improvements upon it, claiming it as' his own to his nephew, Peter Worrall, offering to sell it as his own, devising it in fee at his death, claiming and collecting the damages for the opening of a road through it, and not accounting in any way to his brothers and sisters for rents received by him, for the proceeds derived from the sale of timber, or in any other manner, and his brothers and sisters never having made any claim upon him, all covering a space of time of over twenty-one years, they may find an ouster by Elias Worrall of his brothers’ and sisters’ and title by possession to the six-sevenths which descended to them at the death of their mother.</p> <p>Answer. The plaintiffs’ first point is affirmed, but the evidence of ouster ought to be clear and satisfactory. The other interested parties had the right to, suppose he was holding for their mutual benefit. Some act must be shown, sufficient to warn them that he was not holding as heir of his mother, or that he Was not holding under his father’s will. If you find that the remaindermen in his father’s will knew or ought to have known that Elias held adversely to them, the point is affirmed. (Tenth assignment of error.)</p> <p>The defendant presented, inter alia, the following point:—</p> <p>3. If the plaintiffs claim that Elias took title from his mother, they must, in order to show tide in him to the whole, first show title in the mother, and then show that Elias did some decisive act, or commenced a course of conduct more than twenty-one years prior to April Mth 1863, brought home to the knowledge or notice of liis brothers aud sisters, by which he ousted them from the possession, and must follow this up by showing a continued, visible, notorious, distinct, and hostile possession in him or those who claim under him, persisted in for twenty-one years. The mere keeping possession, leasing the property, receiving the rent, erecting fences and buildings adapted to its cultivation and profit would be no evidence of ouster.</p> <p>Answer. The third point is affirmed. (Twelfth assignment of error.)</p> <p>The court charged the jury, inter alia, substantially as follows :—</p> <p>“ The plaintiffs claim the 'same title which Elias Worrall had at the time of his decease. His title was as heir of his mother and by twenty-one years’ adverse holding. ... I instruct you that the plaintiff’s have made out a good paper title from the commonwealth to Mary Worrall. She died in possession intestate, about. 1802, leaving seven children. Her husband, Peter Worrall, the father of Elias, remained in possession. If the land was hers, he had a life estate therein. Elias, her son, was entitled, as one of her heirs, to one undivided seventh. His father, Peter Worrall did make a will, by which he devised the land in question to Elias for life, the remainder in fee to his children if he had any,'if none then to the persons through whom the defendants claim title. Elias died without leaving any children.</p> <p>“ If, then, the jury find that Elias took possession after his father’s death by virtue of and under his father’s will, and not as heir of his mother, then his holding was not adverse as to the remaindermen under his father’s will, and in such case, the defendants should recover. His holding for his life estate under the will of his father would be adverse to his brothers’ and sisters’ title as heirs of the mother, and if such holding continued for twenty-one years, the mother’s estate would be lost.</p> <p>“ But if you find that Elias did not take possession under his father’s will, but as heir of his mother, then as before stated, he would hold full title to one-seventh of his mother’s interest in the land. If he took open, hostile possession of the whole under.a supposed will of his mother, and persisted in such possession for twenty-one years, he would be entitled to the- whole by virtue of such adverse holding.</p> <p>“ [I do not instruct you that there is no sufficient evidence of an ouster of his co heirs. It is, however, not as clear and satisfactory, as to remove all doubts on this point.] (Eleventh assignment of error.)</p> <p>“ If his co-heirs knew, or from his conduct ought to have known that he repudiated his father’s will and held under his mother’s supposed will, this would amount to an ouster. Without such knowledge, or without some decisive act of his amounting to notice that he claimed to own the whole land, his co-heirs might well suppose he was holding for them as well as himself, under their father’s will.”</p> <p>Verdict and judgment for the defendant. The plaintiffs took this writ of error, assigning for error the rulings on evidence and the answers to points hereinbefore particularly recited, and the portion of the charge above quoted within brackets.</p>

<p>1. A clause in an application for a policy of fire insurance provided that all statements made therein should be warranties on the part of the insured. One of the questions was, “ What incumbrances on the property ? ” The answer as written was “ none.” In an action on the policy issued in pursuance of the application, brought by the insured, the company defended on the ground that at the time of the application a judgment against the plainliff was a lien on the property. The court permitted the plaintiff to show that at'the time of signing the application he told the company’s agent that he had given a note, but he did not know whether it was entered up or not; that the understanding was, it was not to be entered; that the agent then asked, “Well, shall I put it down incumbrance or no incumbrance ?” to which plaintiff replied, “You can put it as you please.” The agent said, “I will put it down no incumbrance,” to which plaintiff made no answer. ■ The court instructed the jury that if the plaintiff stated the truth to the agent, and the agent wrote no incumbrance, the company could not set up the act of their own agent to defeat the policy ;</p> <p>Held, to be error. The statement being written by the plaintiff’s assent without his knowing whether it was true or not, and being a warranty, the plaintiff took the risk of its being true, and it turning out to be untrue in fact, there was a clear breach of warranty, and the plaintiff was not entitled to recover on the policy.</p> <p>2. The fact that the agent, in above case, was also a director in the company, was immaterial.</p>

<p>1. After the lapse of forty years from the making of a treasurer’s sale of unseated lands for taxes, .as proved by certificate of assessment and return of sale from the “ land book for taxes on unseated lands,” for the years 1838-1840, the delivery of a treasurer’s deed may be presumed ; and where it is shown that unsuccessful search had been made for such deed where it might naturally have been expected to be found, and that the parties to this transaction are dead or removed from the state, secondary evidence of the contents of such deed is admissible, to show title in ah action of ejectment.</p> <p>2. The certificate from the “ land book for taxes on unseated lands of Ridgway township ” admitted in evidence in this-case (printed below) was a substantial'.compliance with the Act of April 19th .1843..sect. 2, providing for the admission in evidence of “ certified extracts from the assessment books of unseated lauds.”</p> <p>3. The court below instructed the jury as follows : “Land becomes seated either by residence or cultivation and use for the purpose of'making profit from the same by the owner or persons under him, and it cannot be assessed as unseated even by consent of the owner.” Held, under the circumstances of this case, to be a correct instruction.</p>

<p>Error to the Court of Common Pleas of JEik comity: Of January Term, 1883, No. 216.</p> <p>Scire facias, issued September 12th 1881, by the Spring Nun Coal company, against Thomas Tosier, to reyive and continue the lien of a certain judgment obtained by said plaintiff against said defendant, to January Term, 1869, No. 16.</p> <p>The record showed, inter alia, the following facts : — The original action was trespass vi et armis, brought November 28th 1868, by the said plaintiff, against the said defendant, to recover, under the act of March 29th 1824, treble damages for cutting, carrying away and converting certain timber from the plaintiffs land, without their consent. On September 20th-1876, judgment was entered against the defendant for want, of an appearance and plea. A rule to open the judgment was made absolute upon condition of the defendant paying all costs accrued, and fifty dollars to the plaintiffs attorney, but these conditions did not appear to have been complied with and the judgment stood. Several writs of inquiry of damages were issued and stayed, and finally, on May 23rd 1883, upon a third plnries writ of inquiry, an inquisition was held, and damages assessed at $11,714.47 and costs $250.</p> <p>To the scire facias to revive the judgment, the defendant filed the following affidavit of defence: — “ That on April 30th 1878, your petitioner filed his petition in bankruptcy to No. 3499, in the District Court of the United States in and for the Western district of Pennsylvania, and was adjudged a bankrupt under the Revised Statutes of the United States, Title “ Bankruptcy,” and having conformed to all the requirements of law in that behalf it was, on the 9th of May, A. D. 1879, ordered by the said court that “ the said Thomas Tosier be forever discharged from all debts and claims, which by said title are made provable against his estate and which existed on the 30th day of April, A. D. 1878, on which day the said petition was filed by him ; excepting such debts, if any, as are by law exceptecl from the operation of a discharge in bankruptcy. That a certificate of said bankrupt’s, defendants’s, discharge was issued by the said court at No. 3499 in bankruptcy on May 9th 1879. That the deponent is informed and believes that the judgment herein before mentioned, No. 16, Jan. T., 1869, was a debt provable and was not exempt from the operation of said discharge in bankruptcy, all of which he expects to prove on the trial of this cause.”</p> <p>The plaintiff took a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, which rule, the court, after argument, discharged. Exception. The plaintiff took this writ of error, assigning for error the order discharging said rule.</p>

<p>1. Where in a deed the words “ children ” and “ heirs ” are used indiscriminately, in order to harmonize the two parts of the deed, the word “ children ” will be substituted for the word “ heirs ” in the habendum.</p> <p>2. On May 10th 1831, D. granted unto A. and wife, “ for and during their lives or the life of the longest liver or survivor of them, in trust to and for their children ” a certain tract of land “to have and to hold the said messuage or tract of land, hereditaments hereby granted, mentioned or intended so to be, with the appurtenances, unto the said A. and wife, in trust to the only proper use and behoof of the said A. and his wife in trust for their heirs forever.” In 1834 the land was sold at sheriff’s sale under an execution on a judgment of a creditor of A. the grantee. A. died in 1857 and his wife in 1864. In 1879 the heirs of A. who claimed that under the above deed A. and his wife had estates for life, brought an action of ejectment against the defendant, who had been in possession forty-one years, and who derived title, through several mesne conveyances, from the sheriff’s vendee.</p> <p>Held, that the equitable title, whatever may have been its character, was from the beginning in the cestuis que trustent, who alone by themselves or their trustees had the right of possession and the right to recover possession, and that t heir right whether sui juris or under disability was barred as against the defendant and those holding under him, after thirty years from the date of the entry.</p>

<p>1. By virtue of the provisions of the Constitution of Pennsylvania 1874, art. XIV. § 1, and of the Act of March 31st 1876, § 17, the office of “ City Controller ” of the city of Philadelphia was made a county office, and by virtue of the provisions of the Act of May 15th 1874, the Governor of the Commonwealth is authorized to fill a vacancy oocuring in said office, by and with the consent of the senate.</p> <p>2. The city councils of Philadelphia have no power to fill a vacancy occurring in said office.</p> <p>3. The title of the Act of March 31st 1876, to wit : “ An Act to carry into effect § 5 of art. XIV. of the constitution, relative to the salaries of county officers, and the payment of the fees received by them into the state or county treasury, in counties containing over one hundred and fifty thousand inhabitants,” is sufficiently indicative of all the provisions enacted in said Act, to comply with the constitutional requirement relating to the title of Acts of Assembly.</p> <p>4. The fact that in the Act of June 11th 1879 (P. L. 130) the controller of Philadelphia is referred to as “ City Controller ” and the fact that several ordinances of councils, passed since the Act of 1876, imposed duties upon him as “ City Controller” do' not change his status as a county officer.</p>

<p>The maker of a judgment note, regular upou its face, but given to the payee without consideration, for a fraudulent purpose, cannot set up as a defence, in an issue to try the validity of a judgment entered on the note and opened by the court, that the plaintiff in the judgment, took the note from the payee with full knowledge of the fraud, as collateral security for an antecedent debt.</p>

<p>In an action by A., a property owner, against B., a mining company, to recover damages for the pollution by B. of a private watercourse, which flowed through A.’s lands and was used by her for domestic purposes, Held,</p> <p>1. Ttie measure of damages is the sum which will compensate the plaintiff for the actual loss which she sustained by reason of said pollution prior to the institution of the suit.</p> <p>%. It was error to leave said amount entirely to the discretion of the jury, with instruction that they were at liberty to find a verdict for any damages, whether nominal or compensatory. They should have been instructed to determine from the evidence what sum would be a full compensation for the loss, and it was not discretionary with them to and for less.</p> <p>3. The fact that the tortious act of the defendant increased the supply of water and in other ways was of advantage to the plaintiff is immaterial, and such benefits cannot be set up by way of set off or recoupment.</p> <p>4. It was error to restrict the damages to the loss in the value of the water, irrespective of that of the improvements which had been erected for its ordinary and useful purposes.</p> <p>5. It was error to admit, in mitigation of damages, testimony to show that the mining of coal in the anthracite region is below water mark, that water is always encountered in mining operations in that region, and that defendants’ method of working its mines is the ordinary, reasonable and proper one, such facts being irrelevant.</p> <p>6. An offer on behalf of the plaintiff to prove “ what was the permanent injury and damage to the property itself, that is, the freehold, in the loss of value caused by the destruction of this water,’’ was properly excluded.</p>

<p>1. Where a pedestrian on a public street at night intentionally left the highway in order to take a by-patli, but missed the path and was injured by falling off the end of a culvert which projected beyond the street line on a level therewith, he cannot recover damages from the municipality on the ground of negligence by it in omitting to erect guards at the point of the highway where he turned off.</p> <p>2. Where the undisputed evidence, including that of the plaintiff himself, showed the above state of facts, the court should have directed a verdict for the defendant.</p>

<p>1. An action of debt will lie upon a city warrant or order, drawn by the mayor and countersigned by the city controller upon the city treasurer, of a city of the third class, for the payment of the consideration of a contract between the city and a gas company, for supplying gas to the public lamps, and directed to be paid ‘‘ for account of gas and water appropriation.’’</p> <p>2. Under an ordinance of the city of Scranton in force at the date of the issuing of a city warrant, as above, interest is recoverable in an action on said warrant.</p> <p>3. Dyer®. Covington Township. 7 Harris 200, and other cases holding that suit cannot be maintained, nor interest recovered, upon township, county, borough and school orders, distinguished.</p>

<p>Error to the Court of Common Pleas of Lackawanna county : Of July Term 1882, No. 124.</p> <p>Amicable action of debt and case stated, between the Fidelity Insurance Trust and Safe Deposit Company and John Welsh, trustees under the will of Dr. Samuel Jackson deceased, plaintiffs,-and the city of ■' Scranton, defendant. The case was submitted by agreement to the decision of the court, as under the provisions of the Act of April 22d 1874.</p> <p>The material facts were found by Hand, J., to be as follows :—</p> <p>The plaintiffs claimed to recover the sum of $70, being the amount of two coupons, on a certain bond issued by the city of Scranton, with interest payable “ free of taxes for state, county or local purposes.”</p> <p>The defendant claimed to deduct therefrom certain taxes paid to the state, to wit (1) the sum of $9, paid since notice to the plaintiff thereof; (2) the sum of $18, for taxes, defendants have been compelled to pay the state, due prior to 1878, but not deducted from coupons already paid on this bond, with no notice at the time of payment of such claims. The city did not pay the latter to the state until suit brought, February 1st 1878.</p> <p>The bond, which was duly transferred by indorsements to the plaintiffs, was in the following form ;</p> <p>$1000. CONSOLIDATED LOAN. $1000.</p> <p>United States oe America, State oe Pennsylvania.</p> <p>Seven per cent bond, payable twenty years from date.</p> <p>The City oe [No. 78.] Scranton.</p> <p>Know all Men by these Presents, That the city of Scranton is indebted, and is hereby held and firmly bound unto the Fidelity Insurance, Trust and Safe Deposit Company, or assigns, in the sum of one thousand dollars, lawful money of the United States, payable twenty years from the date hereof at the First National Bank of Scranton, in the city of Scranton, with interest thereon at the rate of seven per centum per annum from the first day of June, A. D. 1873, payable semi annually on the first days of December and June of each year, free of taxes for state, county or local purposes. By Act of Assembly of March 19th, A. D. 1873, this bond is made a legal investment for all moneys held by any person or corporation in trust, or in a. fiduciary capacity, and is issued in pursuance of an Act of Assembly of the state of. Pennsylvania, approved May 7th, A. D. 1870, and a supplement thereto, approved March 19th, A. D. 1878, and a joint resolution of the councils of the city of Scranton, approved May' 19th 1873, for issuing bonds and consolidating the city debt, and is transferable on the books of the commissioners of the city of Scranton, attested by their clerk and not otherwise.</p> <p>In witness whereof, and in pursuance of said joint resolution, the commissioners of the city of Scranton have caused this bond to be signed by their president, and have caused the seal of said city, attested by their clerk, to be hereto affixed, this first day of June, a. d. 1873.</p> <p>[seal.] J. W. Bushnell, President.</p> <p>Attest: F. A. Beamish, Clerk.</p> <p>The court, after reciting the provisions of the several Acts of Assembly, recited in'the bond, and the 25th section of the Act of April 23d 1866, incorporating the city of Scranton (P. L. 1044) ; also the provisions of the Acts of April 9th 1873 (P. L. 68); April 30th 1864 (P. L. 219), and certain resolutions of the Finance Committee and Commissioners of the city of Scranton, held, as matter of law, inter alia, as follows:—</p> <p>1. The city of Scranton, by said bond, did covenant to relieve the holder thereof from said taxes, and in effect covenant to pay the same.</p> <p>2. The city is estopped from setting up any formal defects in regard to tiie issue of the bond.</p> <p>3"’ That, in regard to all matters relating to the legal power of the city to issue the bond in question, the holder is bound to take notice of any want of power in the city, and the city is not precluded from setting up such want of power in this case. The holder of the bond was bound to take notice of any covenant upon the face of the bond which the city had not the express power in its charter to make.</p> <p>4. The city of Scranton, at the time of issuing this bond, had no power to covenant to pay the state tax upon this bond.. The charter of 1866 exempted $20,000 of the city debt from taxation for state purposes; It did not authorize the city to pay the tax. The acts of 1870 and 1873 were to the same effect. By the act of March 19th 1873, these exemptions were expressly taken away from city loans, not previously negotiated into the hands of innocent holders. At the time of the issuing of this bond, this repealing law was in force, so that, if the previous legislation could be construed to empower a city to covenant to pay a tax, the repeal, being as broad in language as the words implying the power, must be held to have repealed the power. It matters not whether the individuals of the city committee or the councils supposed they had the power, or supposed they were making a true representation ; if we are right in construing this as a question of power, the true meaning of the law as it stands is the criterion of construction, and the evidence of a fact.</p> <p>In matters of this kind the city authorities act for and bind the people, and they must have express power so to do. We think nothing can be taken by implication. If this corporation has the power to make this covenant, she has it by express language in her charter ; if it rests in doubt she has not the power. It is not a question of what ought to be done ex aequo et bono, but a question of what has been done by the express power of the state, and we look in vain for any authority to the city of Scranton to issue bonds and pay the taxes thereon. It is not a parallel case with a bond issued by the Commonwealth, or by the United States Government, for it is possible that the state may so act with her creditors as to render it unjust for her (having the legislative power) to exercise that power subsequent to and against such action. The powers of the city are not self-derived or self-existent; they are derived from superior powers which must grant them or they are not in existence.</p> <p>The Act of March 27th 1865, does not give this power to a municipal corporation ; that we deem is lacking in her charter, even if that act should be construed to include municipal corporations, it must mean corporations who, by their charter, have such power to contract. It is doubtful if that Act conferred any power on the private citizen, lie had the power to so contract naturally, and it required the usury law to take it from him, and by virtue of those laws it became unlawful to contract for any higher rate than statutory interest. The act of 1865 repealed so much of the usury laws, and restored a power which by law had been taken away, or at least rendered an exercise of it legal, but it did not confer any power on a municipal corporation. Municipal corporations have no power to contract for any unlimited rate of interest, unless conferred by their charter. It has been questioned whether a municipal corporation can agree to pay interest on its obligations without authority, though we are aware that by the course of trade and business and common custom, it is now held that they are now liable for interest on over-due obligations. In the case at bar, the power given to the city of Scranton was to pay seven per cent, interest and no more. It is true the law did exempt from state taxes, but that was no power conferred on the city; on the contrary, it was a restraining power on the state itself. No question of implied power can arise, for an implied power is one necessary for the execution of a granted power. We therefore conclude that the city is not liable for the tax levied by the state on their bonds, and may deduct the amount as required by the law of this state from the coupons at the time of payment.</p> <p>The plaintiff is therefore entitled to recover the amount of the coupons less the amount of tax which the city may now legally retain under the act of April 30th 3864, section 4. (Purdon, 1387, P. L. 219.)</p> <p>5. This raises the second question in the ease. The defendant asserts the right to deduct from the coupons not only the tax of current years, of which the plaintiff had notice, viz., nine dollars, but the taxes upon the bonds due for the six years previous, the coupons of which were paid without any claim for deduction, to wit, eighteen dollars in addition.</p> <p>We are of the opinion that when the city has paid a coupon in full, without claim for abatement for the tax, it is a voluntary payment, binding upon her as upon an individual. It was neglect of duty imposed by the Act of 1864, for which the city could not maintain an action to recover back the sum neglected to be deducted. As against the present holders, it could not be asserted back of the time they became owners, for they did not receive the money. We think it can not' be asserted since, except in strict compliance with the Act of 1864. The city of Scranton was authorized to pay seven per cent, interest on this bond. She covenanted so to do. Her right to pay less must be in strict accordance with the law of the state which interferes with this payment. That law makes the treasurer of the city the medium for the collection of this tax, and liable for it. It makes it his duty to deduct the tax on the payment of any interest or dividend on the debt due by the city, and pay the same over within thirty days after the said interest or dividend has fallen due. The treasurer not having done this, there is no authority in the law by which he may deduct the taxes of former years; the judgment in this case should therefore be for the amount of coupons, seventy dollars, less nine dollars tax deducted since notice to plaintiff.</p> <p>Judgment is therefore entered in favor of plaintiff, for the sum of sixty-one dollars.</p> <p>The plaintiffs thereupon took this writ of error, and filed the following assignments of error :—</p> <p>1. The learned judge erred in holding that the city of Scranton was not authorized to enter into a contract for payment of interest, clear of tax.</p> <p>2. The learned judge erred in not entering judgment for the full amount of the coupon, without deduction for taxes.</p> <p>3. The learned judge erred in only entering judgment for the plaintiff for the amount of the coupon, less the interest.</p>

<p>1. The tenor of existing legislation in regard to filling vacancies in public offices, state, county and municipal, points to the intention of filling them by a popular vote at. the earliest opportunity after the vacancy occurs; and where, in a statutory provision the time for filling a vacancy is doubtful, it should be construed in harmony with such general intent, rather than in derogation of the rights of the people.</p> <p>2. Where a vacancy occurs in the Board of School Controllers in the city of Scranton, which is a city of the third class divided into more than twelve wards, such vacancy is to bo filled by the qualified votes of the proper ward at the next municipal election.</p> <p>3. An incumbent appointed by the Board of Control to fill a vacancy occurring in the board is not entitled to hold his seat until the next biennial election provided by law for the regular election of school controllers, but only until the election of a successor at the next spring election after the happening of said vacancy.</p>

<p>Error to the Court of Common Pleas of Lackawanna County: Of July Term 1882, No. 65.</p> <p>This was originally a proceeding before an alderman to obtain possession of real estate purchased at sheriff’s sale, pursuant to the Act of June 16th 1836 (P. L. 780) and its supplement of May 24th 1878 (P. L. 134) wherein The First National Bank of Carbondale was plaintiff and Nancy C. Cowperthwaite and James Cowperthwaite her husband; were defendants.</p> <p>Before the alderman the said defendants filed respectively the following affidavit in arrest of judgment:—</p> <p>“I, James Cowperthwaite, do swear that I firmly believe that I am legally entitled to the premises in dispute against the First National Bank of Carbondale, the petitioners; that I do not claim the same by, from, or under the defendant (myself), as whose property the same were sold, by any title in me before the sale, but by, from, and under a different title, namely by, from and under Nancy C. Cowperthwaite, and further say not.”</p> <p>“I, Nancy C. Cowperthwaite, do swear that I firmly believe that I am entitled to the premises in dispute, against the First National Bank of Carbondale, the petitioners ; that I do not claim tlie same by, from, or under, the defendant as whose property the same were sold, but by another and different title, and that I do not claim the same by title derived from defendant subsequent to the rendition of judgment.”</p> <p>The cause was thereupon certified by the alderman to the court of common pleas, and the plaintiff filed a declaration in ejectment, to which the defendants pleaded not guilty, and a verdict and judgment was entered for the defendants, which judgment, upon writ of error, was reversed by the supreme court, and a venire facias de novo awarded. (Reported 10 W. N. C. 532.)</p> <p>Upon the second trial, before Handley, P. J., the plaintiff having put in evidence the judgment against James Cowperthwaite et al. and the fi. fa. issued thereon, with waiver of inquisition.and exemption, under which the premises in question were levied upon, condemned and sold at sheriff’s sale to the plaintiff, offered in evidence a deed from the sheriff of Luzerne County to James Stott, Cashier, dated May 16th, 1878, for the premises in question. Objected to, on the ground that the said deed upon its face shows no authority .for making it; it recites no inquisition or waiver of inquisition, or condemnation. Objection overruled and deed admitted. Exception. (First assignment of error.)</p> <p>The defendants made the following offer of evidence :—</p> <p>“To prove by the witness on the stand (James Cowperthwaite), that in March 1878, when the real estate of James Cowperthwaite, comprising the land in dispute and three other pieces of land, were, or were about to be, levied upon and sold by the sheriff, that Win. W. Bronson and James Stott, together and separately made an agreement with Nancy Cowperthwaite, that Bronson, representing the plaintiff, should bid in the farm, or laud in dispute, and upon a deed being made to him or the bank, the purchaser should re-convey the same to the said Nancy Cowperthwaite; that upon such conveyance by deed, the said purchaser should convey to the said Nancy Cowperthwaite, who was to pay one thousand a year to the purchaser until the amount of the bid was paid, with interest, and a reasonable compensation to said Bronson for his trouble ; that this arrangement was made with the consent and approbation of James Cowperthwaite, and was accepted by Nancy Cowperthwaite ; that to carry out this agreement James Cowperthwaite was not to fight the sale, or interfere with the same; that Bronson represented that. in carrying out this agreement by the medium of a sheriff’s sale, the property could be bought in for some $3,000 or $4,000 ; this to be followed by evidence that after said agreement was made, and before the sale, it was represented and held out by both Bronson and Stott, represeating the bank, that they were going to bid off the property for Nancy Cowperthwaite, and that by reason of such representations certain parties refused to bid who otherwise would have bid a much larger sum than the amount it was struck down at; that the value of the property at the time of the sale was about $14,000 ; that a number of times after the sale said Bronson and Stott said to different parties that the sale was made, and the property was bid off for the benefit of Nancy Cowperthwaite and her family ; that Nancy -Cowperthwaite soon after the sale, and several times since, has gone to the plaintiff and signified her readiness and willingness to carry out said agreement, and is ready, willing and able to do so now. And that the said Bronson or the bank never repudiated said agreement until after the sheriff’s deed was delivered to the plaintiff, but that ever since the plaintiff has fraudulently refused to carry out the agreement.</p> <p>And further, the defendants propose to prove that at the time of the purchase of the property now in dispute, the said Nancy Cowperthwaite was possessed of a large amount of money, to wit: $1,000; that in paying the purchase money for the property in dispute she, herself, 'paid to the vendor of it a large part of the purchase money; that this money, paid by her, was owned by her in her own right; that at the time there was an arrangement between her and James Cowperthwaite that she should have a distinct interest in the property to the amount of money that she had advanced and paid towards the purchase; that at a number of times before the sale to the bank, and at the time of the conversation above referred to, it was represented to and made known to the said ¥m. W. Bronson, in connection with’ this sale, that the said Nancy Cowperthwaite claimed, and had an interest in the said real estate, by virtue of her said paying the purchase money therefor; that she refused the said Bronson to make any private sale to him for the property, or to allow any consentable sheriff’s sale to take place, by reason of her paying 'said purchase money, unless said sheriff’s sale should be to her benefit.</p> <p>Objected to: First, because the offer is inconsistent with the claim made by Mrs. Cowperthwaite before the alderman : •Second, because there is no consideration for the agreement mentioned in the offer — it is nudum pactum : Third, the offer does not propose to prove a tender of the amount agreed upon to be paid by the defendants, or either of them, for the land, or any portion or installment of it.</p> <p>The Court I cannot see possibly how we can admit this evidence under the present showing in this case. The supreme court decision in this case is very clear what the defendants may show upon this trial; but, as I understand it, she is now prevented from showing anything except as set forth in her claim made before the alderman or justice of the peace. Whatever title Mr. Cowperthwaite had, these parties acquired it by the sheriff’s sale, and therefore are entitled to the possession of the property. Upon another ejectment of course whatever questions that are outstanding between these parties can be tested, but not in this case, as I understand it by the decision of the supreme court.</p> <p>Exception. (Second assignment of error.)</p> <p>The court charged the jury as follows:—</p> <p>“ This is an action of ejectment brought in this court by proceedings commenced before one of the aldermen of this county ; the rule is that where the case is brought in by a plea under the Act of 1836, the party is confined to the defence he made before the alderman. Whatever outstanding equities may exist between the parties cannot be tested in a proceeding of this kind. There therefore remains nothing for you to do save only to put your heads together and agree upon a verdict for the plaintiff for the land described in the writ. You may do so without leaving the box.” (Third and fourth assignments of error.)</p> <p>Verdict accordingly, for the plaintiff, and judgment thereon. Tlie defendants took this writ of error, assigning for error the rulings upon evidence, and the charge of the court as above set forth.</p>

<p>Upon the confirmation of an administrator’s account the Orphans’ Court awarded the balance to a distributee; she being a lunatic, the administrator paid it over, in pursuance of an order of court, to her committee, “ subject to the further order of the court.” Subsequently a claim against the decedent’s estate was presented and judgment recovered thereon; whereupon the judgment creditor obtained a rule to show cause why the decree of distribution should not be opened, which rule the court discharged, and no appeal was taken.</p> <p>After the death of the committee and appointment of a new committee, the lunatic died, and on settlement of the account of the substituted committee the court decreed that a certain sum was due by him to the lunatic’s.estate. The above mentioned judgment creditor again applied for and obtained a rule to show cause why the original order directing payment of the distributive share to the committee of the distributee should not be revoked, and the funds remaining in the hands of the substituted committee be applied to payment of .the judgment:</p> <p>Held, that the application came too late, and the court properly discharged said rule.</p>

<p>1. In a prosecution for seduction under promise of marriage, proof of such mere social attentions upon the part of the defendant to the prosecutrix, as accompanying her from church, waiting upon her home, calling upon her at the house of her parents, and there waiting upon her now and then for two years, is not sufficient evidence to corroborate the prosecutrix’s testimony to the effect that a promise of marriage was made to her, and will not warrant the jury in finding that fact in the affirmative.</p> <p>2. Where in such case there is testimony that the defendant called upon the prosecutrix.’s mother and expressed contrition for what he had done, and a willingness to make amends by marrying the prosecutrix after a time, this is not evidence from which a jury could safely find a previous promise to marry.</p> <p>3. The failure of the Commonwealth to call the father of the prosecutrix, who was present at the. above mentioned conversation, to testify to the particulars thereof, was a circumstance which would have justified an inference unfavorable to the prosecution, and the court would have been warranted in so instructing the jury.</p> <p>4. In the case above stated, testimony of a conversation between the defendant and a third person, in the course of which the defendant said in reference to the matter in hand that “ he would give two hundred dollars to settle it, and no more, that he was guilty of the crime,” was no evidence of a promise of marriage. The admission must be construed to refer to the illicit intercourse with prosecutrix.</p> <p>5. The evidence in this case held not to warrant a conviction for se■duction under promise of marriage, but that a conviction for fornication, &e. might be sustained under the same indictment.</p>

34. Scire facias sur mortgage, by the Lafayette Building and Savings Association, plaintiffs, against Samuel Albright and Elizabeth Albright, defendants, with notice to E. Jonathan Deininger, terre-tenant.

Ebbob to the Court of Common Pleas of Berlcs county: Of January Term 1882, No. 11. Case, by Eliza Ritchie and others, widow and minor chil-“ dren of William Ritchie, deceased,.against the Reading and Columbia Railroad Company, to recover damages for the death of said William Ritchie, caused by the alleged negligence of defendant’s servants. Plea, not guilty.

<p>1. In a suit upon a guardian’s bond, the bond is admissible in evidence though it contain material erasures apparent on its face. It will be presumed, in the first instance, subject to rebuttal, that such erasures were made before delivery and approval.</p> <p>2. Such a bond being a statutory obligation, and the basis of the guardian’s appointment and credit, no collateral agreement between the obligors at the time of execution can affect its legal force. Fraud practiced in obtaining the signature of a surety is no defence by him in a subsequent suit on the bond.</p> <p>3. Therefore, in such a suit, it is no defence by a surety that- his signature was procured upon condition that A. should sign as co-surety, and that after execution by both, but before approval by the court, the name of A. w'as erased.</p> <p>4 The approval by the Orphans’ Court of a guardian’s bond.is.an adjudication that the bond is valid in all respects; and in a subsequent proceeding it will be presumed that erasures or interlineations apparent on its face were made before approval and were satisfactorily explained.</p> <p>5. Where one by misplaced confidence enables another to commit a fraud, he must, as against an innocent party in interest, suffer the loss occasioned thereby.</p>

<p>Appeal from the Orphans’ Court of Berlts comity: Of January Term 1883, No. 231.</p> <p>This was an appeal by Esther Kindt from a decree of the Orphans’ Court of Berks county, dismissing her exceptions to and confirming the report of an Auditor appointed to distribute the estate of Christian L. Bechtel, deceased.</p> <p>The facts, as found by the auditor (Jeremiah K. Grant, Esq.) were as follows : On April 6th 1871, Christian L. Bechtel,</p> <p>the decedent, became a surety on a judgment bond for $2,000, given by Charles H. Miller to Michael Haak, with a warrant of attorney bearing even date therewith attached, upon which judgment was entered on the same day. At the time of said entry, Charles H. Miller had certain real estate of sufficient value to pay the judgment. Subsequent to said entry, Charles H. Miller and Elvira L. his wife, conveyed their respective interests in said estate to Christian L. Bechtel, who on the following day reconvéyed it to Elvira L. Miller, in fee, which conveyances were duly recorded. On March 9th 1876, the said judgment was revived at the instance of Michael Haak by an amicable sci. fa. against Charles H. Miller and Christian L. Bechtel, but no notice was given to Elvira L. Miller, the terre-tenant; whereby the judgment lost its lien and became uncollectible in respect to the estate conveyed as aforesaid (See Haak’s Appeal, 4 Out. 59).</p> <p>On February 27th 1879, Michael Haak assigned the judgment to Esther Kindt. Bechtel died in July 1880, and on the audit of his estate, Esther Kindt presented this judgment for payment. Counsel for the administrators objected to its allowance on the ground that the failure to properly revive the judgment, was a discharge of the surety.</p> <p>The auditor disallowed the claim, and the exceptions filed to his report on behalf of Esther Kindt were dismissed by the Court (Sassaman, J.), and the report confirmed. The exceptant thereupon took this appeal, assigning for error the said action of the court.</p>

<p>1. While an attachment execution will lie against an executor to attach the defendant’s interest in a legacy or distributive share before settlement of the decedent’s estate, yet where the amount of such interest can only be ascertained upon the settlement of the decedent’s estate, the Common Pleas cannot determine the same, the jurisdiction of the Orphans’ Court therein being exclusive.</p> <p>2. In such case it is error for the Common Pleas to enter judgment for a sum certain against the garnishee de bonis propriis. The judgment should be against the executor, qua executor, for the amount of the plaintiff’s judgment, to be levied of the interest of the defendant in the personal estate of the decedent.</p>

340. Appeal by Thomas Penrose et ah, residuary legatees under the will of Plicebe Wright deceased, from an order of said court in the matter of the distribution of a fund in the hands of Thomas Lightfoot, trustee under the will of said testatrix.

178. Debt, by the Commonwealth of Pennsylvania at the suggestion of George Raup, against Casper Rhawn, J. B. McKelvy and W. H. Abbott, upon an official bond given by W. U. Abbott as assignee for the benerit of creditors of William Raup, on which the other- defendants were sureties. Pleas, nil debet, payment, payment with leave, and as to Casper Rhawn, non est. factum.

286. This was an appeal by Mary Jane Weldy and Catharine M. Fox, Administratrix d. b. n. c. t. a. of Elizabeth Seyfert, deceased, from a decree of said court dismissing their exceptions to and confirming the report of an Auditor appointed to audit and restate the second account of Hon. Tlios. K. Elcocfe, executor of Henry A. Seyfert, deceased, and make distribution of the balance in the bands of the accountant.

17. Ejectment, by Jacob Merkey against Emanuel Huoncker, for a tract of laud in Berks county containing 18 acres. Christian Huoncker, Michael Schmeltzer and Franklin Syn'der were admitted as parties defendant, as landlords, the original defendant being tenant in possession. Plea, not guilty. On the trial, before Sassaman, J., title was admitted in Daniel R. Kline prior to September, 1871.

Aereal from the Court of Common Pleas of Berks county : In equity. Of January term 1883, No. 344.

334. Case, by Barbara Neff against the corporation of the Borough of Easton, to recover damages for injuries resulting from a fall, caused by an alleged defect in one’of defendant’s highways. Plea, not guilty. On the trial, before Eeeder, J\, the following facts appeared: Barbara Neff, the plaintiff, was a lady sixty-eight years of age and a resident of the borough of Easton.

212. Case stated, between Oscar Meyer, plaintiff, and the county of Lehigh, defendant, setting forth the following facts : The plaintiff was duly appointed official stenographer of the courts of Lehigh county, in accordance witli the provisions of the Act of May 8th 1876 (P. L. 140). Said county has a population loss than 200,000.

138. Ejectment, by George Brobst against Benjamin Lochman and Catharine Lochman his wife for a certain house and lot situate on Seventh street in the city of Allentown, of which the defendants were in possession. Plea, not guilty. On the trial, before Albright, P. J., the plaintiff put in evidence a deed for the premises in question, dated May 27th 1873, from one Fitch to Benjamin Lochman.

111. Amicable action between Catharine H. Shouse, administratrix of the estate of John Shouse, deceased, plaintiff, and the Merchants’ Bank of Easton, defendant. A case stated was filed, setting forth the following facts : The Merchants’ Bank of Easton was incorporated by a special Act of the legislature, approved March 14th 1871 (P. L. 350), the business of which was to receive money on deposit at interest, and to invest the same.

155. Debt, by Thomas Steckel, administrator of John II. Romig, against David Koons, to recover a distributive share of the principal sum charged on certain lands, as the dower interest of the widow of John H. Romig Sr. during her life, and payable on her death to the children of John H. Romig, Sr., of whom the plaintiff’s intestate was one. Plea, nil debet.

140. Debt, by Esther Wotring, et ah, administrators of Michael Wotring, deceased, against Stephen Shoemaker, administrator of William Saeger, deceased, upon a promissory note for $463.50, dated September 22d 1875, signed by Thomas Bertseh and William Saeger to the order of Peter Gross, an On the trial, before Albright, P. J., the following facts appeared : At an Orphans’ Court sale of reSl estate by the administrators of Wotring, Thomas Bertseh became the purchaser of a…

309. ' Case, by Jacob J. Hottenstein, Charles L. Hottenstein and William H. Hottenstein, against John F. Weiler, to recover damages for the refusal of the defendant to remove a fence and other obstructions, from a certain strip of ground between the respective lots of plaintiffs and defendant, which strip the plaintiffs claimed the right to use as and tor an alley-way, in common with the owners of adjoining lots. Plea, not guilty.

364. Appeal by Charles Bush, who was surety upon the administration bond of William H. Blumer, administrator of the estate of Eliza Blumer, deceased, from a decree dismissing his petition for a bill of review in the matter of the audit of said administrator’s account, and the decree of distribution thereon.

<p>1. No particular words are necessary to constitute a devise of real estate. A testamentary clause disposing of “all the rest, residue and remainder of my estate ” will, in the absence of a contrary intention apparent in the will, pass residuary realty as well as personalty; and, by virtue of the Act of April 8th 1833, after-acquired real estate will pass under such clause. .</p> <p>2. The terms of the deed of trust in this case held to create a vested remainder in the grantor’s mother, and not to operate as a testamentary instrument.</p> <p>3. The Commonwealth claimed collateral inheritance tax upon certain real estate upon the ground that the same passed, on the death of A., intestate, to his sister, B. She denied that she acquired any title direct from her brother; claiming that she took as devisee of her mother, in whom she averred an estate in remainder had vested by virtue of a deed of trust executed by A. in his lifetime. Held, that under the true construction of the said deed of trust and will, B.’s contention wfts correct, and therefore collateral inheritance tax did not accrue.</p>

63. Bill in equity, filed May 23d 1882, by the Lehigh Water Company against the Corporation of the borough of Easton, and the Board of… Held: “that the charter incorporated twelve persons therein mentioned as trustees, and granted to them and their successors the usual corporate privileges and powers, and declared that the trustees should forever thereafter consist of twelve, and no more, and should govern the college, and fill up all vacancies which might be created in…

201. Covenant, by John II. Staats against the Susquehanna Mutual Fire Insurance Company, on a policy of lire insurance to recover damages for loss sustained by plaintiff in the destruction of the insured property by fire. Fleas, non est faotum, covenants performed, with leave, etc. On the trial, before Myers, F. J., the following facts appeared : — On September 22nd 1876, the plaintiff bought the insured property at a sheriff’s sale upon a mortgage held by him.

114. Trover, by O. M. Heller et ah, members of an association called “TheHamilton Cornet Band,” against Samuel Hufsmith, to recover damages for the alleged conversion of certain property of the association. The action was originally brought before a justice of the peace, who gave judgment for the plaintiffs, whence it was removed into the Court of Common Pleas by-appeal.

1. This was an appeal by Lewis Meekley, from a decree of said court, making distribution of a certain fund in court. Held: by assignment, two other judgments against her husband, for $427, and $319.50, respectively, the same being next in order of lien to the above judgment under which the sale was made.

301, 302. This was, in the court below, a petition filed by Sarah Felir, administratrix of Elizabeth Miller, widow of Jacob Miller, deceased, averring that certain sums due to the decedent in her lifetime and charged upon certain lands devised to Thomas Miller and others, remained due and unpaid, and praying that the balances due be ascertained and paid. An answer was filed, and the cause was referred to an Auditor to take testimony and report.

172. Assumpsit, by Wilson P. Ludwig, against Henry Siegfried, Charles W. Ludwig, Samuel Both and George Hagenbuch, late partners in the linn of Siegfried, Ludwig & Co., upon a promissory note, dated December 20th 1877, signed “ Siegfried, Ludwig & Co.,” in favor of the plaintiff, for $1,050.

252. This was an action on the case by Stephen Shoemaker, administrator of William Saeger, deceased, against John D. Stiles, to recover certain money received by the defendant as attorney for Saeger, in his lifetime, but claimed by the defendant for counsel fees.

145. Foreign attachment, by Solomon Boyer, against Edward P. Bullard and C. Van Brunt, with whom were impleaded John Murray, Joseph Hill, James H. McKee and Joseph W. Fuller; also a summons in case sur assumpsit again The American Life Insurance Company. Bail was entered, and the attachment dissolved, September 10th 1881. The defendants pleaded non assumpsit.

257. Appeal of Charles Kemmerer and wife and Mary Ann Danner, from the decree of said court, dismissing their exceptions to and confirming the report of an Auditor in the matter of the distribution of the balance in the hands of Mary Ann Danner administratrix of David Danner, Sr., who died August 1st 1878.

<p>1. While the writ of audita querela is seldom used, it seems that it may be awarded iu this state, in a proper case.</p> <p>2. Audita querela is not a writ of right, but can only be awarded, upon petition filed, by a special allocatur of the court in which the judgment was eutered.</p> <p>3. The facts iu this case held to be insufficient, upon the merits, to warrant the issuing by the court below of a writ of audita querela.</p> <p>4. Whether the obtaining a rule to show cause why the judgment should not be opened, which rule was discharged by the court after hearing, is a bar to a subsequent application for a writ of audita querela, — not decided.</p>

186. Debt, on a policy of insurance, by Henry Dougherty, administrator c. t. a. of Elizabeth .Dougherty, deceased, against the Pennsylvania Fire Insurance Company. Plea, nil debet. On the trial, before Albright, P. J., tlie following facts appeared : Elizabeth Dougherty, wife of Henry Dougherty, purchased a lot of ground from the executors of Charles Kramer, on October 17th 1867.

297. Appeal by Alexander Rodenbach, administrator of the estate of Jesse Rodenbach deceased, from a decree of said court surcharging him with interest on a note given by him to the decedent. The facts were as follows : The decedent Jesse Rodenbach, at the time of his death, held a judgment note, dated April 7th 1875, for $2,460, against Alexander Rodenbach, upon which were indorsed two payments, of $147.60 each. This judgment note was never entered of record as a lien.

160. Appeal by Rebecca Van Vliet, administratrix c. t. a. and legatee under the will of Elizabeth V. Barry, from a decree of said court, dismissing her petition, praying that a certain… Held: in an opinion by Dreher, P. J., that the will of Derrick Van Vliet did not charge said legacy on the said lands by him devised to his sons Charrick or Richard, and therefore dismissed the petition. The petitioner took this appeal, assigning for error, the decree dismissing her petition.

Of July Term 1882, No. 169. This was an appeal by Stephen O. Cortelyou, from a decree of said court, dismissing a bill in equity, filed by him against John Ott, praying for specific performance of a contract under seal for the sale of a tract of laud. The contract was in form of a lease from the defendant to the complainant, with an option of purchase, at a sum certain within a specified time.

361. Appeal by Mary Follweiler, widow of Jonas Follweiler, deceased, from a decree of said court, making distribution of the proceeds of certain real estate of the decedent, sold by order of the Orphans’ Court for the payment of debts. After payment of debts a balance remained for distribution under the testator’s will.

326. Ejectment, brought December 6th 1881, by Michael Lutz and Mary Lutz, against Jesse Follweiler and Rebecca Follweiler, for a piece of laud containing four acres, situate in Lynn township, Lehigh county. On the trial, before Albright, P. J., title was admitted in David W. Follweiler prior to October 10th 1871.

Appeals from the Court of Common Pleas of Lehigh county: Of January Term 1883, Nos. 358, 359. These appeals were to a decree of said court in the matter of the account of William H. Blunter, committee of Joseph Strassburger a lunatic. Before the Auditor to whom the said account was referred, it appeared that the accountant received, on his appointment as committee in 1868, about $4818.41, and in his account filed April 30th 1877, claimed a balance due to him of $1,600.

<p>Where money due to a defendant in a judgment was, by private arrangement between himself, his counsel and other parties, deposited with a depositary to abide the result of a certain suit, an attachment execution issued on said judgment and served on parties to the arrangement in whose hands said fund had once been but who held no part of it at the date of service of the attachment, is ineffectual to bind the fund. Such an arrangement, under the circumstances of this case, though concealed from the judgment creditor of the insolvent owner of the fund, with the view of preventing its being attached, is not a fraud on said creditor.</p>

<p>Error to the Court of Common Pleas of Lehigh, county : Of January Term 1883, No- 321.</p> <p>Ejectment, by Samuel Lutz against Reuben Weaver and George W. Griesemer, for a house and lot. Plea, not guilty.</p> <p>On the trial, before Albright, P. J., the following facts appeared: In 1877, the plaintiff Lutz, being the owner of a half-acre lot, (which included the lot in controversy) agreed verbally to sell the same to. Franklin Miller for $250. The boundaries were marked, and Miller went into possession and built a house thereon, but never paid the purchase money, and no deed was executed to him. A mechanics’ lien for labor and materials furnished in the erection of said house was filed by one Daniel Kressley against Miller, as contractor, and Lutz as owner or reputed owner. A scire facias wás issued on this claim against Miller and Lutz and duly served on.them, on which judgment was obtained against both. Under an execution thereon the premises were sold at sheriff’s sale, as the property of Lutz and Miller, to the defendant Weaver, who put the defendant Griesemer in possession as his tenant. A sheriff’s deed was duly executed to Weaver. Lutz thereupon brought this action of ejectment.</p> <p>The defendant requested the court to charge in substance, that under the above stated facts, the sheriff's sale divested the title of both Miller and Lutz to said premises. Refused. (First assignment of error.)</p> <p>The court charged, inter alia, as follows :</p> <p>[“According to the title as it appears by writing the plaintiff here is entitled to this land.] He has title by deed to this land, and there is no evidence that he by deed or writing in 'any form, ever conveyed it to the defendants or anybody from whom they claim. But the court is of the opinion and so instructs the jury that there was such a performance on the part of Miller of this verbal contract as would render it inequitable that Lutz should recover the land absolutely. The court is of opinion that this is a proper case for a conditional verdict.” ...</p> <p>Verdict in favor of the plaintiff, on condition that if defendants within 30 days pay to plaintiff the amount of purchase money stipulated for in the parol agreement for the sale of the lot in dispute to Franklin Miller, then the plaintiff to release to defendants all claim to the title to the premises in controversy and all claim to said purchase money. Judgment on the verdict.</p> <p>The defendants took this writ of error, assigning for error, the refusal of their point, and the portion of the charge above quoted within brackets.</p>

<p>Error to the Court of Common Pleas of Sullivan county: Of January Term 1852, No. 422.</p> <p>Debt, by the Commonwealth of Pennsylvania, at the snggeslion of Thomas Norton et ah, against Henry Yan Etten, T. B. Pomeroy, Solomon Bahr and Philip Tubach, upon the official bond of said Yan Etten as prothonotary of Sullivan county, upon which bond the other defendants were sureties. Plea, nil debet, with leave, &e., and conditions performed.</p> <p>On the trial, before Ingham, P. J., the following facts appeared : Henry Yan Etten was elected prothonotary of Sullivan county and gave an official bond with the above named sureties in $6,000, conditioned “that if the said Henry Yan Etten shall and does faithfully execute the duties of said office and shall and does well and truly account for and pay according to law all moneys which shall be received by him in his official capacity, and shall and does deliver the books, seals, records, writings and papers belonging to the said office whole, safe and undefaced, to his successor therein, then this obligation to be void, or else, to be and remain in full force and virtue.”</p> <p>On December 22d 1874, a judgment was recovered in the common pleas of Sullivan county, by Eranklin Township against John S. Osier, for $700, which was duly entered on the judgment docket, and became a lien on two tracts of land in said county owned by said Osier. By deed dated May 4th 1875, Osier sold one of said tracts to Thomas Norton, for a full consideration, the other tract being of ample value to secure said judgment, and Osier agreed with Norton that he would pky and satisfy the same.</p> <p>Subsequently, in 1877, other judgments were recovered against Osier, the first two, in order of lien, being the following: W. T. Davies, $292.37; N. 0. Johnson, $1,090. Under an execution upon a subsequent judgment, the tract still owned by the defendant was taken in execution and advertised to be sold on May 27th 1878. Thomas Norton employed counsel to represent his interest at the sheriffs sale, who examined the judgment docket and found that the above mentioned judgment of Franklin Township against John S. Osier had been duly marked “ satisfied ” by the prothonotary, and that there were no other liens of record, prior to Norton’s purchase. lie therefore informed Norton that he had no interest to protect in bidding at the sheriffs sale. W. T. Davies also examined the judgment docket, and, finding that by reason of the satisfaction of the Franklin Township judgment his judgment was the first lien against the premises, bid up the same to an amount barely sufficient to protect his judgment; whereupon the property was-knocked down to N. C. Johnson, the judgment creditor next in lien, for $450, which sum Johnson paid to the sheriff, and he received a deed for the tract.</p> <p>The sheriff and his counsel having also examined the judgment index, distributed the fund to the judgments in their order of lien, viz.: the Davies judgment of $292.37 in full, and the balance of the fund, on account of the judgment held by N. C. Johnson, the purchaser at the sheriff’s sale.</p> <p>Subsequently, in July 1878, the court on petition of Franklin Township, averring that its said judgment had not been paid, granted a rule to show cause why the sheriff should not pay into court the proceeds of said sheriff’s sale, for distribution, and, it appearing by depositions that the satisfaction of said judgment had been entered by mistake, made absolute said rule; which order was, on certiorari, reversed by this court (Franklin Township v. Osler, 10 Norris 160).</p> <p>Osier being insolvent, Franklin Township then proceeded against Thomas Norton to enforce the lien of its said judgment -against the tract purchased by him from Osier, as aforesaid; whereupon Norton, in order to save costs, paid to Franklin Township the debt, interest and costs on said judgment, amounting to $896, and took an assignment thereof, and thereupon instituted this action on the prothonotary’s official bond. The evidence showed that on or before May 1st 1878, the prothonotary was requested to enter satisfaction upon the judgment docket of a certain judgment of B. M. Silvara v. J. M. Osler and Wm. May, which was indexed in said docket on the line immediately above and preceding the entry of the said judgment of Franklin Township against John S. Osier; that the prothonotary, by inadvertence and mistake, marked the word “satisfied” on the wrong line, so that the same was written opposite the judgment of Franklin Township v. John S. Osier, instead of opposite the judgment of Silvara v. J. M. Osier and Wm. May ; that this mistake was not discovered until several weeks after the said sheriff’s sale, when the prothonotary erased the word “satisfied” as written, and wrote it on the line above, opposite the Silvara judgment. It further appeared that Franklin Township had no knowledge of said erroneous entry until after said sheriff’s sale, and also aid not have knowledge of said sale until some time after it took place. W. T. Davies testified that the full value of the tract sold at said sheriff’s sale was $1,800 or $2,000, and that if the Franklin Township judgment had not been satisfied of record, he would have bid up the property to an amount sufficient to cover both that judgment and his own. Other witnesses corroborated him as to the value of said tract. The court affirmed the plaintiff’s points to the effect that if the jury found from the evidence that the plaintiff Norton had suffered damage by reason of his having relied upon the unauthorized entry of satisfaction, the verdict should be for the Commonwealth in the amount oí the bond, and for Norton for the amount of damages be sustained.</p> <p>The defendant presented, inter alia, the following points :</p> <p>2. “That an honest mistake or clerical error committed on the part of the prothonotary in the discharge of his duties in making up his records, corrected in good faith as soon as the error is discovered, is not such neglect of duty or failure to perform the duties of his office as makes him liable in an action upon his official bond.”</p> <p>Answer. Wo deem it unnecessary to answer this point in terms so broad as to coyer cases which are .not now before us. The defendant alleges that the judgment in favor of Franklin was.marked satisfied by. his mistake; if the evidence proves that this mistake defeated the lien of the said judgment on the real estate sold, misled purchasers and those who wished to become bidders at the sheriff’s sale,- and misled the sheriff in his distribution of the funds raised by the sheriff’s sale, then it was such negligence on the part of the prothonotary as amounts to a breach of the conditions of his official bond and the plaintiff may recover in this suit for damages suffered by them.</p> <p>6. That a party examining the lien docket in the office of the prothonotary, does so at his own risk, and be can not hold the prothonotary liable on his bond exce'pt for furnishing a false certificate of liens. Refused.</p> <p>14. That in any event, if Thomas Norton, the assignee of the Franklin Township judgments, is' entitled to recover in this action he cannot recover any greater sum than would have applied on the Franklin Township judgment out of the proceeds of the.sheriff’s sale of the land of Osier, had the same beeu properly distributed according to priority of lien, to-wit: the sum of $393.70.</p> <p>Answer. Not affirmed.</p> <p>Verdict and judgment for the commonwealth for the penal sum of the bond, $6,000, and for the plaintiff Thomas Norton, for $700.. The defendants took this writ of error, assigning for error, inter alia, the answers to above points.</p>