Volume 103 — Pennsylvania State Reports

278. This was a feigned issue, directed by the court to determine whether M. W. Dewitt and George Henning, mortgage creditors of Harriet E. Yorscheimer, and B. W..Lewis, her grantee, .or Wm.

377. This was an action of ejectment by John Swaekhammer against Charles Sill and Mary Sill his wife, for two pieces of land, adjoining each other, situate in Herrick township, Bradford county, one… Held: and that since the judgment was entered, to wit, Nov. 7th 1S77, Philip Swackhainmer had conveyed to Mary Sill, wife of said Charles Sill, the said land for $300, the deed never having been recorded.

<p>1. Where a deed conveys a present interest in lands to the grantee for life, the fact that it contains provisions to take eifect, by way of contingent remainder, upon the death of the grantor during the life of the grantee, does not convert it into a will. Such limitation, therefore, cannot be revoked by the grantor, or by operation of law for life, upon his subsequent marriage.</p> <p>2. A limitation in a deed to the “five children of A. and their representatives,” cannot operate to vest in them a fee simple. It is immaterial that such appeared to be the intention of the grantor. The rule of law is that a present conveyance without the word “ heirs ” passes but a life estate.</p>

<p>The writ of error authorized by the Act of April 10th 1848,. § 8 (P. L. 450) to a feigned issue directed by the Orphans’ Court, does not lie until linal decree has been entered in that court. The verdict and judgment in the issue are not binding on the Orphans’ Court, but if adopted as the basis of the final decree, any party aggrieved may appeal from said decree, and at the same time take a writ of error to review the judgment in the feigned issue.</p>

Of January Term 1883, No. 76. This was an appeal by Mark J. Hartley, from a decree of the said court sustaining a report of a Master, whereby a bill iu equity, in which George T. Tingley was complainant, aud said Hartley defendant, praying for the reconveyance by tiie latter to the former of certain property, was sustained, and the relief granted.

Of July Term 1882, No. 113. This was an appeal by S. S. Pierce, from an order of tbe said court, awarding an attachment against him for non-compliance, with an order requiring him to pay costs, including the fees of the Master and Examiner, in a certain suit in equity wherein a decree had been duly entered against Pierce for debt and costs.

<p>1. The authorities of a borough may, in cases justified by necessity or custom, license private individuals to occupy public highways, to a reasonable extent and for a reasonable time, for private purposes, in a manner which would otherwise constitute a nuisance.</p> <p>2. A ditch dug in a street of a borough, for the purpose of laying water-pipe from a spring to a private dwelling-house, in pursuance of a municipal license, is not a public nuisance per so, so as to make all parties concerned in sinking it liable for any damages that may result from it.</p> <p>3. Where one who contracts to perform a lawful service for another is independent of his employer in all that pertains to the execution of the work, and is subordinate only in eSecting a result in accordance with the employer’s design, he is an ‘"independent contractor;” and in such case tlie contractor alone, and not the employer, Í3 liable for damages caused by the contractor’s negligence in the execution of the work.</p> <p>4. A., having obtained a license from the borough authorities to lay water-pipe in a street, contracted with B., for $25, to dig a ditch in a borough street and lay the pipe, A. to furnish the pipe and boxing, but to have no further connection with the work. In an action against A. to recover damages for an injury caused by B.’s negligence in leaving the ditch unprotected: Held, that B. was an independent contractor, and that A. was not liable for B.’s negligence in performing his contract.</p>

<p>1. Whore the grantee in a deed is dead, the grantor is not a competent witness, under the Act of April loth 18G9 (P. L. 30), to impeach the title of the grantee’s devisee, by showing that such deed, though absolute on its face, was intended as a conveyance in trust for the grantor and his heirs, lior are the depositions of a grantor, taken shortly before his death, admissible for such a purpose.</p> <p>2. Where the grantors in a deed, absolute on its face, execute a paper, sixteen years afterwards, in the natuie of a will, in which such conveyance is referred to as having been made in trust, such paper is not admissible in evidence to impeach the original deed or to vary its terms.</p> <p>3. The evidence proper to be submitted to a jury to reform or impeach a written instrument, on the ground of fraud, accident or mistake, must be clear precise and indubitable; and the fact that words to this effect are repeated to the jury seven times, in the course of the instructions given by the court, cannot be complained of as error.</p>

125. Ejectment, by Norman C. Thompson against Emily Allen and Almanzo B. Allen, to recover a tract of land situate in the township of Albany. Plea, not guilty.

<p>Error to the Court of Common Picas of Bradford county; Of January Term, 1883, No. 314.</p> <p>This was a scire facias snr mortgage, issued February 13th 1879, wherein G. II. Vandyke to the use of James Vandyke was plaintiff, and Charles Wells and Amelia Wells his wife, were defendants. The mortgage in suit was given and executed by the said Charles Wells and Amelia Wells bis wife, to the said G. II. Vandyke, dated July 3d 1873, reciting the terms of a certain bond and warrant of attorney, of even date therewith, given and executed by said Charles Wells and Amelia Wells his wife, to said G. 11. Vandyke, in the penal sum of $11,514, to secure the payment of the sum of $5,757.28, in installments as therein set forth, and conveying in mortgage a certain lot or piece of land situated in the township of Ulster, Bradford county. Said mortgage was duly acknowledged and recorded on the day of its date. ,</p> <p>The said defendants filed the following affidavit of defence, and copy of bond :</p> <p>“ That the scire facias in this ease is issued upon a mortgage dated the third day of July, A. I). 1873 and recorded the same day, that the said mortgage, was for the sum of $11,514.00 and given to secure the payment of the just sum of $5,757.28, which said sum was borrowed by said defendants of Gr. H. Vandyke, mortgagee in said mortgage; that said mortgage was a first lien upon certain lands therein fully described ; that said money was loaned upon a bond accompanying said mortgage and bearing even date therewith, a copy of which bond is filed in this case, and is herewith shown the court; that said bond contained a confession of judgment and was filed of record in said court and judgment entered thereon April 27th 1S74, and a fi. fa. issued on the same, and a levy of all the defendants’ real estate was taken thereon; that after-wards, to wit, January 7th 1876, a vend. ex. was issued by said Gr. EL Vandyke, the holder of said bond and mortgage, in the judgment in said bond and defendants’ lands and premises described in said mortgage, were sold at sheriff’s sale February 3d 1876 and purchased by said G. H. Vandyke, mortgagee and payee in said bond for the sum of $4,000 — the whole of said sum of $4,000 being received by said Vandyke after expenses of said sale were taken out, and was applied as*a payment on' said bond and mortgage, and the possession of said premisés became vested in said G. EL Vandyke, mortgagee, by said sale, hé, the said G. El. Vandyke, having obtained possession shortly after said sale, and continues to have said possession to the present time, as your affiants are informed; that said Amelia Wells, one of your affiants, was the owner of said lands in her own right and the title of the same in her.</p> <p>.“That said G. H. Vandyke, the payee in said bond, by an agreement in writing attached to said bond and signed by the Said G. El. Vandyke at the same time said defendants executed said bond' and mortgage, and for a valuable consideration, agreed in the event of a sale of the said premises upon said mortgage bearing even date with said bond, which premises are fully described in said mortgage, and in the event of said G. El. Vandyke receiving all of the money arising from said sale, to release the said payors therein from the further payment of any sum remaining due or unpaid upon said bond; that by said sale aforesaid the said G. EL Vandyke did receive the full proceeds of said sale, and by the terms of his agreement. aforesaid, said, bond and mortgage became extinguished and void in law and fact, wherefore the said defendants would become greatly injured if said plaintiff was allowed to obtain judgment in said scire facias.</p> <p>That said bond was assigned to James Vandyke Nov. 27th 1878, being after said sale, and after the rights of the parties had become vested and the equities fixed : That said mortgage does not appear to be assigned to said James Vandyke by anything appearing of record further than above specified. All which the defendants expect to bo able to prove upon the trial of said cause.</p> <p>“ Charles Wells,</p> <p>“ Amelia Wells.”</p> <p>BOND.</p> <p>“Know all men by these presents, That we, Charles Wells and Amelia Wells, of the township of Ulster, county of Bradford and States of Pennsylvania, are held and firmly bound unto G. II. V andyke, of the same place, in the sum of eleven thous- and five hundred and fourteen dollars lawful money of the United States, to be paid to the said G. H. Vandyke or his certain attorney, executors, administrators or assigns, to the which payment well and truly to be made and done, wo do bind ourselves and onr heirs, executors and administrators, and every of them, firmly by these presents; sealed with onr seals and dated the third day of July, A. D. 1873. The condition of this obligation is such : First, that if the above bound Charles Wells and Amelia Wells, their executors, administrators or any of them, shall and do well and truly pay or carise to bo paid unto the above named G. 11. Vandyke, his executors, administrators or assigns, the just and full sum of one thousand eight hundred and fifty-seven and twenty-eight one-hundredths dollars, lawful money aforesaid in manner following: that is to say, one hundred and fifty and eighty-seven one-hundredths dollars in ninety days from date hereof, three hundred and fifteen dollars and interest on the same from the date hereof before the first day of May next; three hundred and eighteen- and twenty-six one-hundredths dollars on the first day of September, A. D. 1874 ; three hundred and thirteen and sixty one-hundredths dollars on the first day of September, 1875 ; three hundred and seven and forty oue-lumdredths dollars on the first day of September, 1878, and seventy-two and sixty-one oue-lmndredths dollars and interest on the same from the date hereof on the first day of July 1874, and three hundred and seventy-eight and twenty one-hundredths dollars on the first of March 1878, with interest on said last payment hereinbefore mentioned, from the first day of September next; and it is further agreed that, Whereas, On the twenty-fifth day of September, 1872, the said Amelia Wells and Charles Wells by deeds recorded in Bradford county records, as per deeds in deed book Ro. 114, page 450, etc., recorded on the 20th day of February, 1873, conveyed to the said Gr. H. Vandyke the piece of land in said township of Ulster, fully described in the above recited deed, and whereas, the Said Gr. H. Vandyke, by articles of agreement dated the twenty-seventh day of September, 1872, agreed with the said Amelia and Charles Wei's in said Contract as follows, to wit: Whereas, the said party of the first part, (viz: G-. II. Vandyke), has taken a conveyance of the said parties of the second part, (viz ; Amelia Wells and Charles Wells), of the above described premises, (being the premises described in mortgage bearing even date herewith), in consideration that the said party of the first part shall make advances to the said parties of the second part, for the purpose of building a Grist Mill on said premises, said advancements to be made and furnished by the said party of the first part as required and necessary in the construction of said mill to the amount of $3,000, and to be repaid by the said parties of the second part within five years from the first day of March next, and when the said advancements are fully paid to the first party, he is then to reconvey to the said parties of the second part, &c.” ; and whereas it is understood by the parties to the above recited deed and contract, that the said deed and contract constitute a mortgage conditioned for the payment of the just sum of three thousand dollars, with interest thereon, to the said G. II. Vandyke, by the said Amelia Wells and Charles Wells, as therein recited. Row, for the purposes of fully carrying out said deed and contract, and for the purpose of securing the payment of the interest accrued upon the said three thousand dollars, from the first day of March 1874, and annually thereafter, the said parties of the first part herein in consideration of the said party of the second part promising to make to said parties of-the first part a further loan of money, as well as for the consideration hereinafter expressed, that said interest and said sum of $3,000 shall be made a part of this bond, viz : the sum of nine hundred dollars, and shall be paid as follows, viz : one hundred and fifty dollars on the first day of March, A. D. 1874, 1875, 1876, 1877 and 1878, being the interest accruing on the said three thousand dollars.</p> <p>“ It is further agreed by the said parties of the first part herein, that for the consideration hereinafter expressed, that they the said parties of the first part herein, will keep the mill now erected on said premises, fully described in mortgage, bearing even date herewith, insured against loss by fire, &c., in the sum of three thousand dollars, in insurance companies that are reliable, and which are to be designated by the said party of the second part herein, and the loss if any, is to be made payable to Gr. H. Vandyke, bis heirs and assigns, and so set forth in the policy of insurance, and in the event of said parties of the first part neglecting to keep said mill so insured in the sum of $3,000 payable as aforesaid, then the money on this mortgage unpaid, and the money due and payable on said recited contract of the 27th of September, 1872, viz: the three thousand dollars aforesaid, it is all to become due and collectible without fraud or further delay, then this obligation to be void or else to be and remain in full force and virtue.</p> <p>“ And further, I do hereby empower any attorney of any of the courts of record of this State or elsewhere, to appear for me, and after one or more declarations filed for the above penalty, thereupon to confess judgment or judgments against us or either of us, as of the first, next or any subsequent term without stay of execution, and with a release of all errors. Signed sealed and delivered,</p> <p>in presence of “ Amelia Wells, [Seal.]</p> <p>“ Wit S. Vincent.” “ Chaelks Wells, [Seal.]</p> <p>Gl. II. Vandyke, the payee in the within bond, agrees in the event of a sale of the premises, upon the mortgage bearing even date herewith, which premises are fully described in said mortgage, and in the event of the said Gr. ÍI. Vandyke receiving all of the money arising from said sale, to release the said payors herein, from the further payment of any sum which may remain due and unpaid on this bond.</p> <p>July 3, 1873. Gr. II. Vandyke.</p> <p>The plaintiff thereupon took a rule to show cause why judgment should not be entered in his favor for want of a sufficient affidavit of defence, which rule the court, after argument, discharged, Mobbow, P. J., tiling the following opinion :</p> <p>“ Where a conveyance is made to a married woman, and she and her husband give a bond and mortgage to secure the payment of the purchase money, such bond and mortgage are valid against the wife as to the land so convoyed ; and if judgment is entered on the bond by virtue of a confession contained in it, a sheriff’s sale on such judgment transfers her title to the purchaser. This is a well settled rule of law in Pennsylvania: Shnyder v. Noble, 13 Norris 286. In this ease it was said “a bond secured by mortgage is part of tbe mortgage, and must be regarded as one or more of the conditions of that instrument put, for the sake of convenience and more ready enforcement, into the shape of a bond.” It was true this was said in a case of purchase money for land — the only ease in which a married woman can bind herself by bond — but where she borrows money to improve her own estate, or to secure money loaned to her husband, or for the payment of his debts, her bond and mortgage are valid, and they form one instrument or obligation as much as if given for purchase money, and I am unable to see why her confession or judgment in the bond is not equally valid. A judgment entered upon it would be a lien only on the land described in the mortgage — that is, no other land belonging to her, would be bound by it, and a sale, made under such judgment, would convey all the interest that a sale would, on the mortgage, for the reason that “the bond secured by the mortgage is a part of the mortgage,” and if suit could be maintained on the bond, I see no want of power’, on her part, to give a valid warrant of attorney; and as Judge Gordon said, in the caso already referred to, “we cannot understand why such conditions may not be enforced as well when contained in the bond as when written in the mortgage itself.” The mortgage was given to better secure the payment of the bond, and the power to confess jndgment was no greater exercise of power than to obligate herself to pay money. I have been of this opinion for years, and although some doubt has been raised by the individual expression of opinion by some of the judges of the Supreme Court, I do not understand that court to have decided different from what is here indicated, and I think their ruling in the distribution of the fund, raised by the sale mentioned in the affidavit of - defence. is a substantial determination of the validity of the sale on.the jndgment entered against Wells and wife on the bond, secured by the mortgage in this suit. At least, it is my opinion that such sale vested in Gr. H. Tandyke, all the title that Wells and wife had in the land, and'hence this proceeding on the mortgage is unnecessary.</p> <p>“ Rule discharged.”</p> <p>The plaintiff thereupon took this writ of error, assigning for error the order of the court discharging said rule for judgment for want of a sufficient affidavit of defence.</p>

<p>Writs oe error to the Court of Common Pleas of Bradford county: Of July Term 1882, No. 57, and January Term 1883, No. 196.</p> <p>Debt, by C. AY. Clapp against Jolm Welles Hollenbacb and John O. Welles, the former of whom alone was served, upon an instrument of writing, of which the following is a copy.</p> <p>“Received, Athens, Pa., October 25th 1873, of C. AY. Clapp, fifteen hundred dollars ($1,500), the consideration of his assignment of all his right, title and interest in and to a contract dated March 1st 1870, between C. F. Welles, C. AY. Clapp and John C. Welles, for the sale of lots in the • Satterlee and Mile Hill plots; and, also, the sum of twenty-five hundred dollars ($2,500), in consideration of the services of every name and nature rendered by him to C. E. Welles, deceased, in and during the years 1866, 1867, 1868, 1869 and 1870; and the undersigned executors agree to account for the above sums, amounting to four thousand dollars ($4,000), to be allowed to said Clapp, in a full and complete settlement of accounts hereafter to be made between said Clapp and the executors of the estate of C. E. AATelles, deceased.</p> <p>John C. Welles, [Seal.] [ “ Executors of C. E.</p> <p>J. AY. IIollenback, [Seal.] j W elles, deceased. “Witness: A. P. Wolcott.”</p> <p>Pleas nil debet, payment, with leave, &c.</p> <p>On the trial, before Morrow, P. J., the following facts appeared: Charles E. Welles died in 1872, having by his will appointed John Welles IIollenback and John O. AYelles his executors. Among the claims against his estate was an unsettled account between himself and O. AY. Clapp, covering several transactions, and among others the two claims recited in the agreement sued on. Decedent had counter-claims against Clapp, and tlie executors, being unable to'adjust the'respective claims at that time, made the agreement in question. The contract for the sale of land was unrecorded, and ■ the land in question had all been conveyed by Welles during his lifetime to other parties. No money • was actually received by the executors from Clapp, the sums mentioned being merely the valuations agreed on by way of compromise. Subsequently the executors were removed, and James Webb was appointed administrator d. b. n. c. t. a., in their stead. A settlement was afterwards had between Webb and Clapp upon the other accounts, and a balance of $942.42, being found due by Clapp to the estate, it was credited on the $2,500 recited in the agreement in suit. Welles’s estate proving insolvent, Clapp brought this suit against Hollenback and Welles, seeking to hold them individually liable on the agreement.</p> <p>The defendant submitted the following point; “ That upon the whole evidence the plaintiff is not entitled to recover.”</p> <p>Answer. We refuse to charge you that there can be no recovery in the case, but we have submitted certain questions of fact for you to find, and as you find these facts you will determine vo'ur verdict. We refuse to say that the plaintiff cannot recover.</p> <p>The court charged the jury, inter alia, as follows;</p> <p>you understand that this suit is against John Welles Hollenback, to make, him personally liable for this four thousand dollars, Avith interest, from the time of the final settlement, Avhen the right of action accrued. They seek to make Hollenback personally liable for what he did as executor of Charles F. Welles. [There is no question that where a man settles a claim as executor, and gives his promise to pay that, and signs it as executor, and thinks he is binding the estate and not himself personally — there is no question but what he has bound himself to.pay it. That is'a general rule, and undisputed.] But the agreement hero is not a promise to pay expressly. They agree to account for four thousand dollars, “ to be alloAved Clapp in a full and complete settlement of accounts hereafter to be made between said Clapp and the executors of the estate.” That is, a full and complete settlement of accounts between the estate and Clapp. It is Avli at they agreed todo; and, so, far as the $2,500 is concerned, I think there is no question that there can be no recovery upon the agreement; because Webb succeeded them as administrator c. t. a. d. b. n., aud they made a final adjustment and settlement March 29th 1880, and this suit was brought on the 10th of March, 1880 ; and this agreement provides that they agreed to account when there Avas a full and complete settlement made. When Webb made that settlement there was $942.42 to apply, and Webb did apply it upon this item contained in the agreement. So that leaves for consideration only the amount of §1,500. [He sold the land to them, and they agreed to account to him for §1,500. If they bought the laud personally, or if they had the personal benefit of the land, there would be no question, I think, about the agreement, and they couldn’t apply it on this account. But if he had a claim against the estate on account of the land, a much greater amount than the $1,500, and the executors, for the benefit of the estate, in good faith settled it for §1,500, and they gave him this receipt, and agreed to account to him for $1,500, I think they had authority to do it, and no creditor could complain, provided you find that the estate had the benefit of Clapp’s interest in the land.] On the part of the plaintiff, it is argued that John O. Welles and Edward Welles had the benefit of it, and that the estate did not. Put I have already said that Welles having conveyed away the land in the way he did, it was a breach of that contract, and Clapp had a claim against the estate, and while he might have followed the land, he could hold it against the estate, and if it was several thousand dollars, and they settled it for $1,500, was not that for the benefit of the estate? [If the estate had the benefit, in my judgment, this contract required them, only on a final and complete settlement, to apply this $‘2,500 and this §1,500 upon whatever Clapp might he owing the estate. If it turned out that the estate owed him, then he would be entitled to recover out of the estate the §1,500 and the $2,500. The estate was insolvent. Whether it was known at that time, the evidence does not disclose. Welles died October 9, 1872. This settlement was made in October, 1873. Whether it was known that the estate was insolvent then or not, is not shown by the evidence. It seems that it is insolvent, and the result is that Clapp has got of this $1,000 on the final settlement, only §942.47. Put that would not change the matter of the construction of this contract. It reads: “ The undersigned executors, are to account for the above sums, amounting to four thousand dollars, to he allowed to said Clapp in a full and complete settlement of accounts.” We think, therefore, that Clapp cannot recover anything in this case, provided the jury find that this $1,500 was for a settlement of the claim which he asserted against the estate, that the settlement wras accomplished by tbe executors in good faitli, that the estate had the benefit of tbe settlement; under the agreement of the parties ; under such circumstances, all the executors had to do wras, in the final and completo settlement, to allow him for these sums as agreed in this contract. If you do not find these facts as stated, the plaintiff would be entitled to recover $1,500, with interest, from the time of the settlement — two years and a month, lacking four days.</p> <p>By Mr. Patrick: It should be for the exclusive benefit of the estate, should it not ?</p> <p>By the Court: Certainly; I mean that; that nobody else should have been benefited by the settlement; that it was for the exclusive benefit of the estate; and it is for the jury to say, under the circumstances, whether that was or was not the purpose of the settlement. If Clapp had a large claim of three or four thousand dollars, and they settled it for fifteen hundred dollars, and he had an interest in the land and could have enforced breach of contract and have recovered damages against the estate, would it not be for the exclusive benefit of the estate, if they settled a claim of several thousand dollars for fifteen hundred dollars ?]</p> <p>Yerdiet and judgmc nt for the plaintiff for $1,687.50. Both parties took writs of error; the plaintiff Clapp, assigning for error the portions of the charge above quoted withinvbrackets, and the defendant, Hollenback, assigning for error, inter alia, that portion of the charge following the first portion above quoted within brackets.</p> <p>The two cases were argued together.</p>

80. This was an action oil the case, in slander, by Temperance Quick, against Susan Miller and Lewis B. Miller, her husband, for slanderous words spoken by the wife.

183. Appeal of Li lb urn Harwood et al. from a decree of distribution of said court, upon the adjudication of the final account of William Trainer, trustee under the will of Thomas Shivers, deceased. • At the audit, before Ashman, J., the following facts appeared : ‘ Thomas Shivers died at Philadelphia in 1850, having made his will dated May 31st 1849, with a codicil without date, duly-proved July 1st 1S50.

2 of Philadelphia county: Of January Term 1883, No. 172. This was an action of assumpsit by Simon Zugsmith, against Isaac S. Isaacs, upon a promissory note made by the defendant to the order of J alien Gallett, and b}’ the latter indorsed to the plaintiff.

<p>1. The retention of a check, without presentation for payment, for a considerable time after its date, will cast discredit upon it, and one who then receives it will be put upon inquiry. Hut the mere fact that a person receives a check two or three days after ils date, without notice or inquiry, does not necessarily subject him to the objections which the maker could have made against it in the hands of the payee.</p> <p>2. Under the circumstances of this case, Held, that the lapse of two or three days after the date of a cheek payable t,o A. or bearer, was not sufficient to put a party who received the same, for a valid consideration, upon inquiry in regard to the consideration on which it was drawn.</p>

<p>Eeboe to the Court of Common Pleas No. 1, of Philadelphia county: Of January Term 1883, No. 193.</p> <p>Assumpsit, by John W. Miller to the use of William Runyan, against W. W. Glentworth and Anne E. Glentworth his wife. The narr. was in the common counts. Pleas nonassumpsit, payment and set-off, and, as to Anne E. Glentworth, coverture. Replication to the plea of coverture, that the defendant William W. Glentworth had, for five years and upwards before the debts for whijch this suit Was brought were contracted, neglected or refused to provide for his wife, the defendant, Anne E. Glentworth, and that the said debts were incurred for necessaries, for personal services for her rendered at her request, and in the management of her separate estate ; and being so indebted, she, the said defendant, Anne E. Glentworth, in consideration thereof promised to pay, etc.</p> <p>The .plaintiffs’ bill of particulars contained several claims, inter alia, the following :</p> <p>“ Obtaining estimates for arid having built for defendant, Mrs. Glentworth, employing anq paying workmen buying and paying for materials for house Twenty-sixth Street near Brown Street ten per cent, on $8,500, in 1879 and 1880, $850.</p> <p>“Moneys paid and advanced by plaintiff for account of Mrs. Glentworth between November 2d 1878, and May 13th 1881, $500.</p> <p>“'Commissions for moneys collected by plaintiff under power of attorney for defendant, Mrs. Glentworth, between November 2d 1878, and May 13th 1881' — say $80,000 at 5 per cent. $1,000.</p> <p>Compensation of plaintiff for his services to defendant, Mrs Glentworth, in divorce suit and other business, and for management of her property, from November 2d 1878, to May 13th 1881, at $5,000 per annum.....$12,666.67.”</p> <p>On the trial, before Biddle, J., plaintiff’s counsel read in evidence the deposition of John W. Miller, the legal plaintiff, in which he testified, among other things, that he became acquainted 1878, with Mrs. Glentwood who was then living separate from her husband ; he (Miller) went to live at her house, occupied a room adjoining hers, and “ gallanted her about the cityho attended to her business for her, acting under a power of attorney ; he acted as her next friend in a divorce suit instituted by her against her husband ; and generally managed her affairs, collected and deposited her income, and made contracts for her. Mrs. Glentworth and her husband afterwards lived together, and Miller left. Being poor and in bad health, he assigned his claim to the use-plaintiffs, who he testified were supporting him, and would probably have to pay his funeral expenses.</p> <p>Plaintiff’s counsel offered in evidence a general letter of attorney from Mrs. Glentworth to Miller, duly recorded; the deposit books and account books of Mrs. Glentworth, to prove amount of money collected and deposited by Miller for Mrs. Glentworth ; offered to prove by witnesses, inter alia, that Miller had brought suits for rents, had employed architects and builders, and had built a house on a lot owned by Mrs. Glentworth ; and offered to show, by the testimony in the divorce suit, admissions by Mr. and Mrs. Glentworth that the defendants lived apart, and Mr. Glentworth did not contribute to her support.</p> <p>Upon objections, the court rejected all these offers, and at the close of the plaintiffs case, on motion, entered a compulsory nonsuit, wThich the court in bank subsequently refused to take off; whereupon the plaintiffs took this writ of error, assigning for error the rejection of the plaintiff’s offers of evidence, and the refusal of the court to take off the non-suit.</p>

4, of Philadelphia county: Of January Term 1883, No. 187. Assumpsit, by Erancis X. Dilzer and Maria, Iris wife, in right of said Maria, against the] Beethoven Building -Association, incorporated July 2d 1868, to recover certain sums of money, paid by said wife to the ^association.

199. Appeal of Mrs. Maria L. Greiner and Mrs. Tabitha L. Vigners from the decree of said Court dismissing their exceptions to, and confirming the adjudication of, the auditing judge on the settlement of the first account of Samuel Fox and W. Frederick Snyder, executors of the will of William Lang, deceased. The facts were as follows: The testator, William Lang, died May 17, 1881, leaving a widow, Ann Lang and six children.

213. This was an. appeal by Oliarles D. Middleton, residuary legatee of Edward Penn Middleton, deceased, from a decree of said court dismissing his exceptions to, and confirming the adjudication of the auditing judge in the matter of the account of F. Carroll Brewster and James Otterson, Esqs., trustees of the estate of Martha O. Ware, under the will of Edward Penn Middleton, deceased.

<p>Error to the Court of Common Pleas No. 2 of Philadelphia county: Of January Term 1883, No. 194.</p> <p>This was, in the court below, a proceeding by petition and answer, wherein the said court awarded a writ of peremptory mandamus, directed to the Register of Wills of Philadelphia county, commanding him to certify to the Orphans’ Court a certain difficult and disputable question of kindred, to wit, whether the caveators in the matter of the alleged will of Peter Cullen, deceased, are of kin to said Peter Cullen, deceased, and restraining him from issuing a precept to the Common Pleas for an issue devisavit vel non, until the determination of the said question of kinship.</p> <p>The facts,, and proceedings in the case are fully recited in the said writ of mandamus, which was as follows:</p> <p>In the Court of Common Pleas No. 2, in and for the City and County oe Philadelphia.</p> <p>In tiie Matter of the Last Will of ) Peter Cullen, Deceased. j</p> <p>March Term 1882. No. 323.</p> <p>Philadelphia county, ss:</p> <p>The Commonwealth of Pennsylvania to William M. Taylor,</p> <p>Esq., Register of Wills, Greeting:</p> <p>Whereas, the petition of Charles W. Sparliawk, executor of the will of Peter Cullen, deceased, has caused us to understand and be informed that Peter Cullen died September 5th 1881, leaving a last will and testament, wherein lie, the said Charles W. Sharliawk was appointed executor: that upon September 9, 1881, he, the said Charles W. Sparliawk, offered the said will for probate before William M. Taylor, Esq., Register of Wills of Philadelphia County; that a caveat having been filed by Mary Duffy and Ellen Callaghan against the admission to probate of said will, the said William M. Taylor, Esq., Register of Wills, proceeded to take testimony of the subscribing Avitnesses to said will; that before the subscribing Avitnesses Avere savoiui, lie, the said Charles W. Sparliawk, as proponent of the will, insisted that the said caveators should first prove their relationship to the testator; that tlie said caveators, in ansAver to the demand, testified from hearsay that Peter Cullen was born in County Wicklow, Ireland, and was brought to America, whilst a child, by a family by the name of Maitland; that though Peter Cullen Avas a very old man, and they came from the same county, they, had never seen the said Peter Cullen until within a few years last past, although all residents of Philadelphia for a long time past; that after the subscribing witnesses had been sworn, the said caveators produced as a witness one John J. Maitland, subposnaed as a member of the said family of Maitlands, with whom the said Peter Cullen had come to America as a child; that the said John J. Maitland testified that it was the tradition of his family that the said Peter Cullen was brought to America by his grandmother ; also that Peter Cullen was a relative of the Maitlands, and that all came from the neighborhood of .Dublin, and not from the County Wicklow: that the said caveators produced another witness, John Tack, who testified that he knew the said Peter Cullen when a boy, and understood that Cullen was a relation of the Maitlands; that the said caveators produced another witness, William E. Lehman, who testified that he had heard it stated that Peter Cullen' was born at sea; that neither the caveatoi'S nor .any other witnesses stated, of their own knowledge, that they were related to the said Peter Cullen ; that some witnesses produced by the caveators testified that Cullen had said that said caveators were his relations, whilst others testified that he had said that he had no living relations ; that other witnesses were produced by the caveators, on the grounds of undue influence and insanity ; that, after the caveators had concluded their testimony, the said Charles W. Sparhawk, in order to have the matter of relationship of the said caveators referred to the Orphans’ Court, produced two witnesses, namely, William Kane and Samuel Burrows, who contradicted pointblank the-testimony of the witnesses produced by the caveators that the said Peter Cullen had said that the caveators were relatives, and testified that they had heard him say that he had no living relatives ; that a conflict of testimony having thus arisen amongst the witnesses produced by the said caveators, as well as between them and those produced by the said Charles W. Sparhawk in regard to'the question whether the said caveators-are of kin to decedent; that he, the said Charles W.Spar-hawk, to the best of his knowledge and information, does not believe that the said caveators are of kin to the decedent, or in any way related to him ; that such also is the uncertainty connected with their claims, that on the fifteenth day of September, 1881, information of an escheat was filed with the Auditor-General of Pennsylvania, and on the seventh day of December, 1881, a deputy eseheator, appointed on behalf of the Commonwealth ; that after the production of the witnesses aforesaid by the said Charles W. Sparhawk, on the tenth day of January, 1882, he made a formal request in writing, to the said Register of Wills, to refer the said difficult and disputable matter (that is, the determination of the question whether or not the said caveators were of kin to said decedent) to the Orphans’ Court, under the provisions of the twenty-fifth section of the Act of March 15th 1832 ; that afterwards, to wit, upon January 31st 1882, the said caveators filed a formal request in writing to the said Register of Wills, to grant an issue devisavit vel non, to determine the validity of said will; that upon January 27th 1882, Christopher O’Toole filed a petition with the said Register of Wills, claiming kinship with the said decedent, and also praying that an issue devisavit vel non be granted ; that at the time when the said Charles W. Sparhawk made the request to the said Register of Wills, to wit, January 10th 1882, to refer the said difficult and disputable matter to the Orphans’ Court, no request for an issue devisavit vel non had been made by either of the said caveators, or by the said Christopher O’Toole; that the said William M. Taylor, Register of Wills, upon February 10th 1882, refused to grant the request of the said Charles W. Sparhawk, to refer the said question of kindred to the Orphans’ Court, but granted an issue devisavit, vel non to the Court of Common Pleas, to determine the validity of said will, but not to determine the question of kindred, thereby preventing him, the said Charles W. Sparhawk, from having the said question of kindred determined by a court of law judges, as contemplated by the Act of March 15th 1832 ; that upon February 14th 1882, the said Charles W. Sparhawk made application to the Orphans’ Court for a rale to show cause why the said William M. Taylor, Esq., Register of Wills, should not certify the said difficult and disputable matter to the said Orphans’ Court; that on the fourth day of March 1882, the rule was discharged, and the said Charles W. Sparhawk is without legal remedy in the premises unless our said court shall intervene.</p> <p>We, therefore, being willing that due and speedy justice should be done in this behalf, do command you, William Marshall Taylor, Register of Wills, that forthwith you shall certify the said difficult and disputable question of kindred whether the said caveators are of kin to the said Peter Cullen, deceased, to the Orphans’ Court for the county of Philadelphia, the precept for said issue devisavit vel non not to be sent to the Court of Common Pleas until the determination of this proceeding.</p> <p>Witness, etc.</p> <p>The decree of the court was: “ Petition granted, and peremptory mandamus awarded,” (no opinion filed). The respondent took this writ of error*, assigning for error : (1.) The awarding the peremptory mandamus : (2.) The direction therein contained restraining* the respondent from issuing his precept for an issue devisavit vel non in the Common Pleas, pending the disposition of the said disputed question of kinship.</p>

1 of Philadelphia county : Of January Term 1883, No. 184. Case, by John M, Vanderslice, “assignee in insolvency of Matthew IXall, to the use of Franklin S wayne, assignee in bankruptcy of Matthew Hall,” against the city of Philadelphia, to recover damages for injuries to the property of said Hall, caused, as alleged, by the negligence of defendant, in the construction and maintenance of a sewer.

2, of Philadelphia county: Of January Term 1883, No. 212. Case, by Alexander Rickey against John Muldoon, to recover damages resulting to plaintiff from the institution and prosecution of certain actions of ejectment against him by the plaintiff.

<p>1. A garnishee in ail attachment execution cannot claim credit by way of set oil for the amount of an accommodation note on which he was snretyfor the defendant, which was not due at the time of the service of the attachment execution.</p> <p>3. A valid set-oil must be of a debt or demand due at the time of the eommencement of the action in which it is interposed. If the claim is not then ripe for action, it cannot be set oS.</p>

2, of Philadelphia county : Of January Term 1883, No. 205. Assumpsit, by Charles G. Walstrom and Edwin B. Stevens, copartners trading as Walstrom & Stevens, against William Hopkins, senior, and Abraham Bowker, copartners, late trading as Bowker & Hopkins. ■ The defendant. Hopkins alone was served. The suit was originally brought before a magistrate, who gave judgment for the plaintiff against the defendant Hopkins for $51.49.

Certiorari io the Court of Quarter Sessions of Philadelpida county: Of January Term 1883, No. 225. Upon the petition of Mary Robinson and others, filed April 2d 1881, the court appointed a jury of view to report oil the petitioners’ claim for damages caused by “ the alteration of the regulations and revision and actual establishment” of the grade on Grape street, made by virtue of an ordinance of councils of the city of Philadelphia.

2 of Philadelphia county: Of January Term 1883, No. 222. Case, by James Keenan against the Philadelphia, Wilmington and Baltimore Kailroad Company to recover damages for personal injuries received by plaintiff while in the employment of the defendant, though the alleged negligence of the latter in not furnishing suitable implements. The facts were as follows: Keenan was employed by the defendant company in the work of shifting and making up trains.

<p>1. A bill, filed to restrain an alleged infringement of a trade-mark used upon labels or wrappers, which does not aver a similarity or imitation in the appearance of the labels or wrappers, is insufficient and will be held bad on demurrer.</p> <p>2. The appropriation as a trade-mark of the word “ Samaritan ” in one combination of words does not prevent its being used as a trademark in any other combination.</p>

271. This was an appeal by Annie II. Barry, Alice McN. Eisenbrey, and Clara S. Durant, from a decree of the Orphans’ Court dismissing their exceptions to, and confirming the adjudication upon the eighth account of Sarah Harrison, Theodore L. Harrison, and James L. Claghorn, executors of Joseph Harrison, Jr., deceased.

2, of Philadelphia county: Of January Term 1883, No. 261. Held: for the purpose of electing five directors to serve for the ensuing year, and to designate one of these directors as president of the company.

277. This was an appeal by Mary R. Séguin from a decree of said court dismissing her exceptions to, and confirming the adjudication in the matter of the account of Charles II. Beckefus, late guardian of said Mary R. Séguin, formerly Mary R. Richardson.

<p>Error to the Court of Common Pleas No. 2, of Philadelphia county: Of January Term 1883, No. 270.</p> <p>Case, by Robert A. Anderson against Frederick Sutton, to recover damages for alleged false arrest and malicious prosecution.</p>

<p>Error to the Court of Common Pleas No. 2 of Philadelphia county: Of January Term 1883, No. 284.</p> <p>This was a scire facias sur municipal claim filed by the city of Philadelphia to the use of Joseph D. Maull against Thomas Brientnall, to recover for work, materials, &c., employed in the construction of a culvert in Market street, Philadelphia, extending from its intersection with Thirty-third street eastward 233 feet, 9 inches.</p> <p>The defendant pleaded nil debet, payment with leave, &c., and, specially, inter alia:</p> <p>3: That the application for the construction of the sewer was not made by thecowners of property fronting thereon as ■required by the ordinance of May 12th 1866.</p> <p>5. That the said sewer is of no value to any land of the said defendant situate on the line thereof.</p> <p>6. That by the ordinance of May 9th 1877, under the authority of which the sewer was constructed, the chief commissioner of highways was required to advertise for bids therefor, and allot the contract to the lowest bidder and that this ordinance was not complied with.</p> <p>To these pleas the plaintiff demurred and the court, after argument,- sustained the demurrer.</p> <p>At the trial, upon the issues formed, the claimant read in evidence the ordinance of councils approved May 9th 1877 (Ord. p. 98), “that the department of highways be and is hereby authorized to construct the following sewers, viz.:... on Market street from Thirty-third street 270 feet eastward. . . . The chief commissioner of highways shall advertise according to law, announcing that bids will be received for the sewers above designated and be shall allot them to the lowest bidders.”</p> <p>The claim on which the scire facias was issued was then offered in evidence and the use plaintiff testified that the work was done and the materials were furnished and that the price mentioned was their just value.</p> <p>The defendant offered no evidence, Tut requested the court to instruct the jury to find a verdict for the defendant. The court refused so to charge, and instructed the jury, if they believed the evidence, to find a verdict for the plaintiff.</p> <p>Verdict for plaintiff for $376.81, and judgment thereon, whereupon defendant took this writ, assigning for error, inter alia, the refusal of the court to instruct the jury as requested, the charge of the court as above noted, and the entry of judgment for plaintiff upon the demurrer to the above special pleas.</p>

2, of Philadelphia count,!/: Of January Term 1883, No. 283. This was a bill in equity by Ilenry Ii.

295. This was an appeal by J. M. G. Fairfax, and others, children of deceased children of Eobert Gay, from a decree dismissing their exceptions to, and confirming the adjudication in the matter of the account of the Pennsylvania Company for Insurance of Lives, etc., executors of the will of Scott Stewart, deceased. The facts are set forth in the following adjudication, by Penrose, J. Scott Stewart, the decedent died June 27th 1881, unmarried and without issue.

<p>1. A purchaser at sheriff’s sale under a judgment obtained on a sci. fa. sur municipal claim, is not bound to show that the Acts of Assembly, relating to such proceeding, have been strictly complied with. He is protected by the judgment.</p> <p>2. Where a court, having jurisdiction of a proceeding in rem enters judgment, and the property is sold at sheriff’s sale under an execution thereon, the purchaser will take a good title, notwithstanding the fact that the observance of all the statutory prerequisites to such judgment does not appear affirmatively of record.</p> <p>3. Although, in such case, the record affirmatively shows that a writ of sci. fa. sur municipal claim was not served as directed by law, yet after judgment upon the sci. fa. and a sheriff’s sale of the property thereunder, it is too late to inquire, in a collateral proceeding between the original owner and the parties in possession, claiming under the sheriff’s sale, into the sufficiency of the service or the validity of the judgment.</p> <p>4. Where the return to a writ of sci. fa sur municipal claim, issued in 1864, failed to show that the posting was on a “ conspicuous ” part of the premises, and where it appeared from said return that notice of the writ was not published “twice a week for two weeks before the return day,” as required by the statute, and the premises were sold at sheriff’s sale under a judgment and execution on said sci fa.</p> <p>Held, notwithstanding, that a good title vested in the purchaser.</p> <p>5. Delaney v. Gault, 6 Casey 63, followed.</p>

<p>1. Where a policy of life insurance provided, that the company would, if requested, ‘‘after the payment of premiums for two full years, issue a paid-up policy ” for a specified amount, but was subject to the usual covenant by the assured, to pay the premiums on the day they fell due, and to the stipulation that in case of the violation of any of the conditions the policy would be void.</p> <p>Held, that a request for the issue of a “ paid-up ” policy must be made while the original policy was in full life, and not after it had become forfeited for non-payment of premiums.</p> <p>2. Bussing v. Ins. Co., 34 Ohio 226, and People v. Ins. Co., 15 Hun 8, followed; Dorr v. Ins. Co., 67 Me. 438, Johnson v. Ins. Co., 9 Ins. L. J. 189, Montgomery v. Ins. Co., 8 Ins. L. J. 300, and Winchell v. Ins. Co., 8 Ins. 651, distinguished.</p> <p>3. In such a case neither evidence of declarations made concerning the character of such policies, by agents of the company on other occasions, nor the opinion of an insurance actuary as to the meaning usually put, by insurance companies, upon a certain clause, is admissible.-</p> <p>4. An insurance company which is in the habit of sending notices to its assured of the time when the premiums are due, is not obliged to continue the practice, and the neglect of the assured to pay at the proper time is at his own risk.</p>

<p>Appeal from the Court of Common Pleas No. 4, of Philadelpha county: Of January Term 1882, No. 458.</p> <p>This was an appeal by William Wagner, from a decree of said court, distributing the proceeds of personalty sold under an execution issued upon a judgment obtained by said Wagner against one Charles W. Wright.</p> <p>The material facts were as follows: The sheriff paid into court a certain fund, being the balance of the proceeds of an execution against personal property belonging to Charles W. Wright, and an auditor was appointed to report distribution thereof. At the audit, one Anthony Huver (who had filed with the sheriff, prior to the sale, a labor claim) claimed $200 out of the fund in court. The Auditor found that Huver had been in the continuous employ of the defendant in the execution for a period exceeding six months immediately preceding the sheriff’s sale; that at the commencement of six months preceding the sale a balance of $355.67 was due him for wages ; that during said six months he earned the sum of $525, and that during said six months he had been paid sums for wages aggregating $426.94 — no specific appropriation of these sums having been made at the times of payment by his employer or himself.</p> <p>Huver claimed to appropriate said sum of $426.94 to the earliest indebtedness, including the wages due prior to the six months, and to be awarded from the fund the full limit of $200, allowed by the Act of Assembly. The Auditor allowed his claim, and awarded him $200, and awarded the balance of the fund to Wagner, plaintiff in the execution.</p> <p>Exceptions filed by Wagner to the award, on the ground that the Auditor erred in applying the doctrine of appropriation to the Act of 1872, whereas the payments made to Huver during the six months preceding the sale should have been deducted from the wages earned by him during the same period, thus reducing his lien on the fund to the sum of $98.06, were dismissed by .the court, and the report was confirmed ; where* upon Wagner took this appeal, assigning for error said action of the court.</p>

<p>1. In this case, owing to its exceptional features, the Supreme Court elaborately reviewed all the evidence; no serious error being discovered in the findings of fact by the Master, as approved by the court below, the same were affirmed.</p> <p>2. The Master reported that the costs in the case should be divided between three of the several unsuccessful parties: Held, that as they were chiefly responsible for the very protracted litigation, the decree was equitable.</p> <p>3. A party defendant in a bill praying for a partnership account may be called as a witness for complainant, although one of his co-defendants is dead, and his executors had been substituted of record at the time said witness was called. Said witness is within tlie letter of the Act of March 37th 1865. and the fact that he was presumably a friendly witness for the complainant goes to his credit and not to his competency.</p> <p>4. A witness who would have been competent prior to the Act of April 15th I860, is not rendered incompetent by said Act.</p>

<p>1. The presumption of payment of a judgment arising from lapse of time is a general one, and applies as well between the parties to the judgment, as between the plaintiff and subsequent creditors. In the absence of countervailing proof, it is a good defence to a scire facias to revive.</p> <p>2. The mere pendency of a scire facias to revive the judgment, where the defendants appeared and took defence, and nothing further was done for over twenty years, will not rebut the presumption of payment.</p> <p>3. It is error to exclude testimony tending to support the presumption of payment, or to explain and contradict evidence tending to rebut said presumption.</p> <p>4. Testimony showing the solvency of the estate sought to be charged,' and that no demand for payment was made upon it for over twenty years, is such evidence, and its exclusion is error.</p>

<p>1. Section 3 of the Act of March 3d 1870 (P. L. 3) does not prohibit the mining of coal for market in those seams of a coal mine which have two openings or outlets, as required by the Act, at the same time that work is being carried on by not more than twenty men, in another seam for the purpose of making a gangway from said last-mentioned seam to a second opening- or outlet.</p> <p>2. A coal mine, containing five strata or seams of coal, was operated through a shaft extending from the surface through the various seams of coal ; and the entrance to the shaft was covered by the breaker. In the first and third seams fifty or more miners were employed, mining coal for market. The second and fourth seams were not being worked. In the fifth seam a number of miners, not exceeding twenty, were engaged in working a gangway to connect with a second opening, which had not been completed to that scam, although said second opening or outlet was already connected with the first and third seams, in accordance with the requirements of the Act of March 3d 1870 (P. L. 3). Under sections three and five of said Act. the Inspector of Mines filed a bill in equity to restrain the working of the first and third seams, at the same time that work was being carried on to make a second opening or outlet in the fifth seam. A demurrer to said bill was overruled by the court below, and the injunction granted.</p> <p>Held to be error, and that under the proviso to said third section, the work might be carried on as above stated.</p>

<p>1. Under the Act of April 1st 1874 (Put'd. 1873, pi. 21) a writ of certiorari to a court of quarter sessions, in the matter of the proceedings to vacate and relocate a township road, must be taken within two years from the date of the confirmation of the report of the viewers appointed by the court. A writ taken more than two years from such date will be quashed.</p> <p>2. A petition to vacate and relocate a road in Luzerne county was presented to the court of quarter sessions, and the viewers ordered to make return at May sessions, 1878, at which time the order was duly continued until September sessions following, which sessions extended through á fixed period, ending September 14th. No return was made at the September sessions, nor any continuance asked for, but on September 16th, at an adjourned session, the following order was granted. “Now, September 16th 1878, on motion, the return of viewers in this case is continued until next sessions, and the above order is filed at this time with the same effect as though filed on the first day of last term.” The next sessions, being in December following, the return of the viewers was duly filed and was confirmed January 24th 1879. On April 18th 1881, a rule was granted to show cause why the proceedings should not be set aside on the ground of the invalidity of the order of September 16th 1878, under the Act of June 13th 1836 (P. L. 5o5) requiring the return of viewers in such cases to be made or a continuance granted, at the next term after their appointment. This rule was discharged by the court ; and a certiorari was taken more than two years after the confirmation of the viewers’ return:</p> <p>Held, that the order of September 16th 1878, having been made after the end of the September sessions, was invalid, although made at an adjourned session and stated to have the same effect as if made at said September sessions ; but that the certiorari being taken too late under the Act of April 1st 1874, the writ must be quashed.</p>

354. This was an appeal by McLean & Jackson from a decree of said court, making distribution of the estate of Milan Barney, deceased, whereby the appellants, who were assignees of a certain sum to be taken from a one-eighth share of a bond and mortgage belonging to the decedent's estate, were awarded a pro rata part of said one-eighth share, instead of the full sum mentioned in the assignment to them.

' Error to the Court of Common Pleas of Luzerne county : Of January Term 1883, No. 93. Replevin,, by Thomas Murphy against The Times Printing Association and A. A. Chase, to recover the possession of certain personal chattels levied on by the said Murphy, as executor of T. J. Walsh, deceased, and bought in by him at the constable’s sale.

107. This was an appeal by Joseph Church from an order of the said court, awarding an attachment against him for non-payment of costs. The facts were as follows: On November 22d 1871, G. Stevens, et ah, heirs of Charlotte Stevens, filed a bill in equity against Joseph Church and Charlotte, his wife, praying for a conveyance of a piece of land in the city of Scranton on the ground that a trust existed.

<p>Error to the Court of Common Pleas of Luzerne county: Of January Term 1882, No. 44.</p> <p>Assumpsit, by J. P. Ijams against William E. Maffet, upon a written contract, whereby Maffet agreed to provide for certain judgments due Ijams, if the latter would refrain from bidding' at a sheriff’s sale of certain property upon which said judgments were liens.</p> <p>At the trial, before Eice, P. J., the following facts appeared: E. C. Smith was the owner of a number of lots of ground in Wilkes-Barre which were encumbered with mortgages. Subsequent to the mortgages, fourteen judgments were entered against Smith, which became general liens on his real estate. Úpon the judgment which was the first lien against the property, after the mortgages, and was in the name of C. D. Biddle; execution was issued, and Smith’s real estate was advertised to be sold thereunder on February 10th 1877. After this sale had commenced, and several bids had been made, it was adjourned until the afternoon of the same day. During this adjournment the following agreement (upon which this suit is brought), was entered into between J. P. Ijams, who was the owner of the third and fourth judgments against Smith, and Win. E. Maffet, the owner Of a subsequent judgment:</p> <p>“How, February 10th 1877, in consideration that J. P. Ijams allows the real estate of E. C. Smith to be sold without bidding, it is agreed that he shall have the property in which he now lives, at a valuation of three thousand dollars, upon which purchase money above judgments shall apply, or if he refuses he shall be paid by me the amount of the above judgments, debt and interest, in two years from this date.</p> <p>Wm. E. Maffet.”</p> <p>Ijams was the son-in-law of Smith and lived in a house on one of the lots advertised for sale.</p> <p>The plaintiff claimed that this agreement was made with the knowledge and assent of Smith and his creditors, at the suggestion of L. D.'Shoemaker, who had become the owner of the Biddle judgment, and of several other judgment creditors, who, owing to the condition of Smith’s property under the mortgages, did not wish Ijams to bid at the sale, but were anxious to have the property struck down to Shoemaker, which was done.</p> <p>The defendant, on the other hand, claimed that this agreement was not known to most of Smith’s judgment creditors, and that none of the property was bought at the sheriff’s sale for him (the defendant), or in his interest.</p> <p>The plaintiff submitted the following points :</p> <p>1. That if the contract of W. R. Maffet of date of February 10th 1877, was made with the knowledge and consent of R. O. Smith, and the creditors of said Smith, the plaintiff is entitled to recover in this case the amount of the two judgments, Nos. 292 and 293, January Term, 1875, with interest and costs of snit.</p> <p>Answer. “ That point we affirm. If you are satisfied that this contract was made with the knowledge and consent of R. O. Smith, and the creditors of R. C. Smith, the plaintiff is entitled to recover the amount of these two judgments.”</p> <p>2. That if the said contract was made with the knowledge and consent of R. C. Smith, the plaintiff is entitled to the same recovery.</p> <p>Answer. “We say to you, gentlemen, that in order to render this contract valid, it was necessary there should be the approval or the consent of those creditors who would be affected by the bidding of the plaintiff. As thus qualified we affirm the point. Was the contract made with the assent or knowledge and approval of those creditors who would have been affected by the bidding of Ijams’ attorney ?”</p> <p>The defendant asked the court charge:</p> <p>I. If the jury believe that the agreement was made between Ijams, the plaintiff, or Mr, Payne, his attorney, and Mr. Maffet alone, the verdict should be for the defendant.</p> <p>Answer. “ If we understand this point it excludes the idea of an assent by Mr. Smith, the debtor in the execution. With that understanding we affirm the point.”</p> <p>3. This agreement being made at the sheriff’s sale was against public policy, and the verdict should be for the defendant.</p> <p>Answer. “We decline to charge as requested in this point.”</p> <p>The jury rendered a verdict for the plaintiff and judgment was subsequently entered thereon, whereupon the defendant took this writ assigning for error, the admission of the contract in evidence, “ without evidence that it was known of and assented to by all the judgment creditors affected thereby and the answers to plaintiff’s points as above.</p>

<p>Error to the Court of Common Pleas of Luzerne county : Of January Term 1883, No. 388.</p> <p>Assumpsit, by D. M. Dunning against II. Heller, on a promissory note.</p> <p>The note and the indorsements thereon were as follows :</p> <p>“ Post-office, Dorrance Centre, County of Luzerne, State of Pa. Dorrance, Feb. 23d., 1880.</p> <p>Six months after date, I promise to pay to the order of myself one hundred and niuety-two dollars at First National Bank at Hazleton, Pa., value received with use.</p> <p>Kenatus Heller.”</p> <p>INDORSEMENTS.</p> <p>“I hereby certify that I own and am worth in personal and real estate in the county of Luzerne, State of Pa., $4,000, over and above all indebtedness, and that the within obligation is given for goods bought by me of the Queen City Fertilizing Company, and the same is in full settlement of all claims and demands of every name and nature between said company and myself up to date of this obligation.</p> <p>“Henatus Heller. Queen City Fertilizing Company, H. Moran.”</p> <p>The plaintiff, who was holder of the note, claimed to have taken it bona fide, before maturity, and without notice of any defence.</p> <p>The suit was originally brought before an alderman, from whose judgment an appeal was taken January 7th 1881, and the same day a plea'was filed, and also an affidavit of defence denying the genuineness of the defendant’s signature to the endorsement. 1</p> <p>' The case was subsequently referred to arbitrators, and an award rendered in favor of the defendant. The plaintiff then took an appeal to common pleas, and there the note was put in evidence, and no objection made to its admission on the part of the defendant. ' ...</p> <p>, . On motion, a comp.ulsory non-suit was granted by the court, based upon the following reasons, as stated by Woodward, J. :</p> <p>“ Well, gentlemen, 1 am obliged to take a certain view of this case. c I will protect the rights, however, of all parties by granting a rule which will enable us to examine it more thoroughly at another time. Under my view of the. case, at present, I hold that this note should have been indorsed by the payee in order to pass title to a third party ; secondly, that it lias not been so indorsed; thirdly, that the signature claimed to be an indorsement is intended to apply or does apply to the certificate or contract on the back of the note, and is not such an indorsement as the law contemplates is necessary to pass title to the note. I do not think that the signature in question can have a two-fold force — one as a contract growing out of the certificate, and the other as an indorsement of negotiable paper. For these reasons the motion for non-suit must prevail. We enter a rule at the same time to show cause why the non-suit shall not be taken off to be placed on the argument list.”</p> <p>A rule to take off the non-suit was subsequently discharged, and judgment was entered for.the defendant. W.hereupon the plaintiff took this'writ of error, assigning for error the refusal of the court to take off the non-suit.</p>

<p>Appeal from a decree of the Court of Common Pleas of Luzerne county: Of January Term 1883, No. 387.</p> <p>This was an appeal by M. C. Earley, a judgment creditor of the borough of Pleasant Valley, from a decree of said court, making absolute rules to show cause why certain judgments he Id by said borough against Earley should not be set off against the judgment which Earley held against the borough.</p> <p>The facts are fully recited in the opinion of this court and that of the common pleas, infra. Bice, P. J., delivered the following opinion :</p> <p>The above judgments were formally assigned to .the borough of Pleasant Valley by M. T. lloban, on the 14th June 1881. On the same date, at a special meeting of the borough council, it was moved and carried that the judgments be purchased by the borough and that M. T. lloban receive one hundred and fifty dollars therefor; it does not appear in the depositions that the consideration lias been paid. Mr. Hoban was at the time treasurer of the borough, and he testifies that his object in having the two judgments held against Mr. Earley assigned, is and was to collect the money due thereon, through the hands of the borough. As a part of the transaction he also gave to the officers the following paper: “Now, 14th day of June 1881, this is to certify that I, M. T. Hoban, do hold myself responsible for any costs incurred by the officers of the borough of Pleasant Valley, through ordinary expenses, that is, train fare, etc., etc., then the town council accept these conditions.”</p> <p>Prima facie at least the assignment of these two judgments vested their ownership in the borough. Is there anything in the testimony to show that the borough is not the real owner ? We think not. Mr. Hoban does not testify that they were to be re-assigned to him on any contingency, and the object which he says he had'in view cannot affect the title and ownership of the borough in the absence of proof of an agreement or understanding on its part that the transfer should be conditional. The agreement to indemnify the officers for any expenses incurred by them was entirely consistent with an actual sale. The right to offset judgments is an equitable, not a legal, right, and that the offset would be allowed was by no means certain. It might be that Earley would set up some superior equity to defeat it, and therefore, the officers of the-borough had a right to make such terms guaranteeing, them against costs and expenses, as the parties saw fit. It is quite apparent that the borough purchased the judgments for the purpose of offsetting them, but there was nothing inequitable in that, nor can it affect its title or ownership. It is equally clear that if the transfer was an absolute one, the equitable right of the borough cannot be affected by the price paid. Nor does it concern Earley that it was not a full consideration, which has not yet been paid.- From this consideration of the evidence we do not think the case comes within the principles announced in the authorities : Kessler v. Angle, 2 W. N. C. 23.</p> <p>To set off one-judgment against another is not a legal power nor is its exercise demandable of right: Burns v. Thornburgh, 3 Watts 78; Wellock v. Cowan, 16 S. & R. 318. It will therefore not be exercised where it would be against equity : Adams v. Wear, 3 Luz. Leg. Reg. 134; Ramsey’s Appeal, 2 Watts 223; Horton v. Miller, 8 Wr. 256. The cross examination of Mr. Hoban was largely directed to the purpose of showing some equitable defence of Mr. Earley to these judgments, but it can hardly be argued that the examination was successful. So far as the record and testimony show, these judgments are in full life, and no grounds either in law or equity, appear why Mr. Earley should not pay them.</p> <p>But finally it was urged that the action of the borough authorities in purchasing these judgments was ultra vires. If, as is contended by the defendant, the borough is simply acting as an agent for Mr. Hoban, to collect his debt, the action of the borough authorities would not be within their powers, and this court, in administering an equitable remedy, would not assist them in an unlawful exercise of power. But if, as we have found the fact to be, the borough purchased these judgments in good faith and owns them in its own right, we do not understand upon what legal principle the defendant can call'in question the lawfulness of the transaction by which the borough became the owner. So far as the .title is concerned, the contract has become an executed one, which we are not authorized to declare void in a collateral proceeding, and at the behest of a stranger to it, the abstract right of the borough to hold these judgments cannot well be questioned; and when we say that the contract is an executed one we mean that so far as third persons are concerned, its title to the judgment- became as complete upon the execution of the assignment as it would have been had the consideration actually been paid. Whether such a contract could be rescinded by either party before the consideration had passed is not the question raised here. It might well be that it could, without giving to a stranger to it the right to impeach it. For example, in the case of McGowan v. Budlong, 29 Sm. 470, the defendant took a note against his failing creditor for the purpose of using it as a set-off, he gave his own note therefor, with the agreement that it should not be collected if the set-off was not allowed. In reversing the court below, where the set-off was rejected, Mr. Justice Paxson said, Abbott had a right to give the note to McGowan, and the latter’s right to use it as “set-off against the maker does not depend upon the fact of its worthlessness. The question of the consideration of the transfer could not have been raised by Budlong had McGowan sued him upon the note. Nor can such question be raised when the note is offered as a set-off.” So, we think it might pertinently be said in this case that the solo question is whether there was an actual transfer of the judgments to the borough, and if there wras, the defendant cannot attack the validity or sufficiency of the consideration, nor can he pertinently argue that its contract to pay it cannot be enforced. The rules are made absolute.</p> <p>The appellants took this appeal, assigning for error the action of the court in making the rules absolute.</p>

<p>Ebbob to the Court of Common Pleas of Luzerne county: Of January Term 1883, No. 389.</p> <p>Case stated, wherein Thomas Munroe was plaintiff, and the county of Luzerne was defendant, setting forth as follows: It is agreed—</p> <p>1. That Thomas Munroe was elected Prothonotary of Luzerne county, at the general election in the fall of 1879, and, having duly qualified, entered upon the duties of his office on the first Monday of January 1880, and discharged the same during the continuance of his term, namely, for three years.</p> <p>2. That when the Constitution of 1873 was adopted and went into effect, and also when the Act of March 31st 1876, P. L. 13, entitled “An Act to carry into effect Section 5 of Article XIY. of the Constitution, relative to the salaries.of county officers, and the payment of fees received by them into the state or county treasury, in counties containing over one hundred and fifty thousand inhabitants,” went into effect, the county of Luzerne, as then organized and constituted, contained according to the United States decennial census for the year 1870, a population of one hundred and sixty thousand nine hundred and fifteen.</p> <p>3. That the county of Lackawanna was erected and created out of the county of Luzerne on the 21st day of August 1878, in pursuance of an Act of the General Assembly approved April 17th 1878, and ceased to be a part of the latter county on that date, namely, August 21st 1878. Also, that the county of Lackawanna, at the time of its erection, liad a population of eighty thousand inhabitants; and further, that that portion of Luzerne county not embraced within the territorial limits of Lackawanna county, had, when the said decennial census of 1870 was taken, and, as indicated by the same, less than one hundred and fifty thousand inhabitants.</p> <p>4. That under the Act of March 31st 1876, commonly known as the “ Salary Act,” the salary of the said Thomas Munroe, Prothonotary as aforesaid, was six thousand dollars ; and further, that the said Thomas Munroe paid into the treasury of Luzerne county during the year 1880, of the moneys received and earned by him for fees for that year, the full sum of six thousand dollars after ascertaining and deducting the amounts due his deputies and clerks respectively for that year.</p> <p>5. That the comity of Luzerne paid to the said Thomas Munroe on account of Iris salary as Prothonotary of said county for the year 1880, the sum of five thousand three hundred and seventy-three dollars and twenty-seven cents, thus leaving a balance of six hundred and twenty-six dollars and seventy-three-cents of said salary unpaid.</p> <p>6. That the county of Luzerne withheld payment of the said balance of salary, alleging that after the county of Lackawanna was erected out of tlie county of Luzerne, as specified in the third paragraph above, the latter county did not contain a population of “ over one hundred and fifty thousand inhabitants,” and hence, that her comity officers, during tlie year 1880, were not within the provisions of the Act of March 31st 1876, commonly known as the “ Salary Act.”</p> <p>7. If the court should he of the opinion that, under the facts as stated, as matter of law, the said Thomas Munroe was entitled to the whole amount of his salary as Prothonotary of the said county for the year 1880, then judgment is to be entered in his favor and against the county of Luzerne, for the sum of six hundred and twenty-six dollars and seventy-three cents; if otherwise, then judgment is to be entered generally for the county of Luzerne.</p> <p>Tlie court, after argument, in an opinion by Nice, P. J., entered judgment for the defendant on tlie case stated. The plain tilf took this writ of error, assigning for error, the said judgment.</p>

298. Debt, by Stephen Ilill and Hrias Seybert, administrators of Reuben Seybert, deceased, against the Pennsylvania Mutual Fire Insurance Company, to recover the amount of a policy of fire insurance issued September 15th 1877, by the company defendant, on the dwelling house of the decedent. Pleas, nil debet, payment-with leave, etc. The building was totally destroyed by fire May 25th 1880, during the life of the policy.

<p>1. A court of.equity will not give relief where the answer of the defendant expressly negatives the material allegations of the bill, and the evidence of only one person, without corroborating circumstances, affirms what has been so negatived.</p> <p>2. Where a bill in equity prays for .the cancellation of a deed on the ground of want of consideration, mistake and ignorance of legal right, it must offer to place the adverse party in statu quo before the execution of the deed.</p> <p>?>. What evidence is not sufficient to authorize a court of equity to set aside a deed on the ground of want of consideration, mistake and ignorance of legal right.</p> <p>4. Where a married woman did not join with her husband in proceedings for fbe adoption of a child under the Act of 1855, no confidential relation exists between her and the child so adopted by her husband. In business transactions, they deal at arm’s length.</p>

Ebeob to the Court of Common Pleas of Luzerne county : Of January Term 1883, No. 57. This was an action of assumpsit by Aaron Whitaker, late sheriff of Luzerne county, to recover of J. W. Peck the difference bet ween, the bid of said Peck, on a sale of the real estate of one Trine by said sheriff Whitaker (said Peck having failed to comply with his bid), and the amount the real estate sold for at a subsequent sale.

<p>Appeal from tlie Orphans’ Court of Luzerne county : Of January Term 1883, No. 353.</p> <p>This was an appeal by John S. Eley, Thomas Eley and Elizabeth Detwciler, devisees of James Eley, deceased, from a decree of the said court dismissing their exceptions to and confirming the report of an Auditor appointed to audit the account of John Bartholomew, surviving executor of the said James Eley, deceased.</p> <p>The material facts were as follows.: The testator, James Eley, died November 17th 1879, leaving surviving him five sons, four daughters, and the children of a deceased daughter. By his last will and the codicils thereto, he gave to each of his children and the said grandchildren “ one-tentli part of all his property, real, personal and mixed.” The property was given absolutely to all but three of the children, for whom the following especial provisions were made :</p> <p>“ 1 give' and bequeath one-tenth part of all iny property, real, personal and mixed, to the children of my son, John S. Eley, to be divided equally among them, share and share alike, at the death of their father, John S. Eley. The part hereby given to the children of John S. Eley I direct to be held in trust by my executors, hereinafter named, during the natural life’ of the said John S. Eley, and the interest or income arising from the same to be paid to the said John S. Eley annually by my said executors during his natural life.” . . . “ The said tenth part of my estate, real, persona] and mixed, shall be and the same is hereby directed to be held in trust by my executors, in said will named, during the natural life of my said daughter, Elizabeth Detweiler, and the interest or income arising from the said tenth part of my estate, to bo paid to the said Elizabeth annually, by my said executors, during her natural life, the fee to said share to be and remain in iny other heirs, subject, nevertheless, to the above stated trust.”</p> <p>. . “ I do hereby devise and bequeath to Abram Lines, of the said Kingston township, all the said portion which, under the said last will and testament, would have gone to my said son Thomas, in trust, nevertheless to pay over to the said Thomas Eley all income’ arising from the said portion during the term of the natural life of the said Thomas Eley, and upon his death, that is the death of the said Thomas Eley, to convey in fee the said portion to the proper heirs of the said Thomas Eley.”</p> <p>At the time of his death, the testator wTas seised of a large tract of coal lands, for which he provided as follows :</p> <p>“ I hereby authorize and empower my executors hereinafter named, and the survivor of them, to sell and dispose of all or any part of my real estate, or to lease the coal upon or under the same, and to convey the same to the purchasers by good and sufficient instruments of writing, provided, however, that my said executors shall first have the written consent of owners of six-tenths of the before selling or leasing the same.”</p> <p>On October 7th 1881, the executors, with the requisite consent of the parties in interest, leased all the coal in a certain tract of land of the testator to the Delaware, Lackawanna and Western Railroad Company for an indefinite period “ together with the sole and exclusive right to mine, remove, and dispose of said coal,” etc. The consideration of the lease was certain monthly payments at the rate of 25 cents per ton. An installment of this rent is the fund in controversy.</p> <p>On the audit, counsel for John S. Eley, Thomas Eley, and Elizabeth Detweiler claimed that the installment was “income” within the meaning of the will, and as such that three tenths thereof should be paid absolutely to them: also that Thomas took an equitable fee and not a life-estate under the will, by virtue of the rule in Shelley’s case. Counsel for the surviving executor and the minor children contended, on the contrary, that the shares of this rent belonging to the said John 8., Thomas, and Elizabeth should be invested by the designated trustees in trust for them and that only the interest accruing therefrom should be paid to them during their lives.</p> <p>The Auditor sustained the latter contention and awarded the sum to the trustees to be invested for their respective cestuis que trustent.</p> <p>Exceptions filed to this report were dismissed by the court, in the following opinion :—</p> <p>The exceptant’s counsel claims the substance of the testator’s language to be, that if his executors lease the coal under his land, as ho has authorized them to do, then the income arising therefrom shall be paid to John S. annually during his life. This is, perhaps, the strongest light in which his case can be put, and retain any portion of the language of the will. Then it is argued the exceptant will take the income absolutely under the general rule, that “ a devise of the rents, issues and profits of. land is equivalent to a devise of the land itself.” We have stated the rule of law as it was argued by the counsel to be, but there must be added to it this important qualification, that in order to carry the fee, a devise of the rents, issues and profits must be without limitation as to time of enjoyment or other conditions: Bentley v. Kauffman, 5 Norris 99; France’s Estate, 25 Smith 220.</p> <p>The same rule applies to personal estate, though with greater force : Millard’s Appeal, 6 Norris 457.</p> <p>In Frances’ Estate the devise was to the testator’s wife the “ one-third of all my personal estate, and one-third part of all the income, rents, and use of my real estate,” arid to testator's son “ all the residue and remainder of my estate, real and personal,” giving his executors full power to sell and convey any and all of his real estate. The land was sold in pursuance of such power, and on the distribution of the fund it was held, reversing the court below, that the devise to the widow carried only a life estate. The reasoning of Judge Meecur in that case is very applicable to this one.</p> <p>Here there is a devise over, the intervention of a trustee, the express provision that the interest or income shall be paid by the trustees to the first taker “ annually for life,” followed by a power of sale in the trustees, which, in the absence of a contrary intent expressed in the will, shuts the claimant up to a life estate in the land and its proceeds in case of a sale: Sheets’ Estate, 2 Smith 257.</p> <p>, Here, as in the eases cited, the testator blends his personal and real estate ; hence follows the expression, “ interest or income” — interest on the personal estate fund and proceeds of a sale or lease, and income from the land if unconverted.</p> <p>As we remember the argument of the counsel for the exceptant, his next proposition is, that admitting it was the intent of the testator that his son, John S., should have only the interest on the fund in case of a sale of the land, yet when he used the terra “lease,” of the coal lie meant a leasing in its ordinary sense, in which case the payments thereon must be considered as compensation for the use of the land, or income thereof, which would clearly belong to the exceptant absolutely. But a lease of the exclusive right to mine and sell all the minerals in or under land, without limitation as to quantity or time, is to be taken as a sale of the mineral in place, and consequently a sale of a portion of the land : Caldwell v. Fulton, 7 Casey 475; Harlan v. Lehigh Coal and Navigation Company, 11 Casey 287.</p> <p>Wherever a conveyance is made of mineral, whether the conveyance be called a lease or a deed, it is, in effect, the grant of a part of the corpus of the estate, and not of a mere incorporeal right: Stoughton’s Appeal, 7 Norris 198.</p> <p>We are bound to presume that the testator knew the legal interpretation of the term “ lease,” and that in the absence of his own definition to the contrary, we must say he used it in the sense of a sale, as before shown, especially as he has prescribed no terms or conditions on which the lease should be made. It follows, then, that John S. has no more right to the income from the coal lease than he would have to the proceeds of a sale of the entire land in case one had been made. On the whole, we know of no language that could have been used to better express a gift to John 8. of amere life estate in the land, and its proceeds, whether from a sale or a lease of the coal.</p> <p>As the gift is of the estate, “ real, personal and mixed,” we do not consider it necessary to decide whether the income from the coal lease be real or personal estate. Certain it is the devise to the executors did not work a conversion of the real estate into personalty, for the direction to sell is not absolute, and is coupled with certain contingencies: McClure’s Appeal, 22 Smith 414. _</p> <p>_ The devise to the testator’s daughter, Elizabeth, is found in item one to be a fee, modified into a mere life estate in the first codicil, at the conclusion of which the testator says : “ The fee to said share to be and remain in my other heirs.” It seems to us this devise cannot be distinguished from the former one, except that the intent to give only a life estate is, perhaps, more clearly expressed. Neither can wc see that the testator intended Thomas should have any more than a life estate, the devise to him being in substantially the same language as that to John S. In the case of both Elizabeth and Thomas a fee had been given by the will, and the only purpose of the codicils seems to have been to reduce the estate to them for life, for the reasons therein given.</p> <p>The exceptants thereupon took, this appeal, assigning for error the court’s- dismissal of tlieir exceptions to and tlie confirmation of the Auditor’s report.</p>

<p>Error to the Common Pleas of Luzerne county: Of January Term 1883, No. 371.</p> <p>Assumpsit, by the People’s Bank of Wilkes-Barre, against Lewis Legrand, indorser of a promissory note made by one Lowensteiu. Pleas, non assumpsit, payment with leave, set-off, &c.</p> <p>On the trial, before Woodward, J., the counsel for plaintiff and defendant filed the following agreement of facts established by the evidence, in the nature of a special verdict subject to certain points reserved, viz:</p> <p>It is agreed that the evidence establishes the following facts:</p> <p>1. That Legrand, the defendant, indorsed Lowenstein’s note for $2,500, which was discounted by plaintiff, not paid at maturity, and duly protested with lawful notice to said Legrand, indorser.</p> <p>2. That Lowenstein was a depositor of large amounts in the plaintiff’s bank, at the time said note was discounted, to wit: May 15th 1875, and also at the time it was protested, to wit : August 16 th 1875.</p> <p>' 3. That suit was brought by the bank against Lowenstein, November 13th 1875, and judgment obtained January 13th 1S76. Suit against Legrand was begun December 8th 1876.</p> <p>4. That Lowenstein continued to do business with the bank as a depositor until December 8th 1876.</p> <p>■ 5. That after suit was brought against Lowenstein, he asked the'president of the bank for time to pay the note, and agreed to pay ten per cent, interest thereon, and to continue doing business with the bank, but no particular time was specified or agreed upon.</p> <p>6. That Lowenstein.had not sufficient funds in the bank to pay the note at the time it matured, but that afterwards, and after the agreement aforesaid, he had at several different times between the maturity of the note, August 16th 1875, and the closing of his account, December 8th 1876, sufficient funds there to pay the note.</p> <p>7. That the amount due upon the note, May 18th 1882, is $2,977.45.</p> <p>■ The points reserved by the court are the following:</p> <p>1. Was Legrand entitled as the surety of Lowenstein to have the money deposited by the latter in the plaintiff’s bank, applied to the payment of the note, and was it the duty of the bank so to apply those deposits?</p> <p>2. Had-the bank the right to apply the money deposited by Lowenstein, to the payment of the note, under the terms of the agreement on which he continued his business with the bank ?</p> <p>So agreed this Í8th of May, A. D. 1882.</p> <p>The court thereupo,n entered the following order and verdict of the jury:</p> <p>Now, 18th May 1882, the facts of this case being determined by agreement filed, the court directs the jury to render a verdict in favor of the plaintiff for the sum of $2,977.45, subject, however, to the reserved points specified in the foregoing agreement of counsel, and reserving the right to enter judgment, non obstante veredicto, in favor of the defendant, if upon consideration of those points, and the facts agreed upon, the court shall be of the opinion that judgment should be so entered.</p> <p>Same day the jury do say they find in favor of the plaintiff for the sum of1 $2,977.45.</p> <p>Afterwards, on argument of the motion to enter judgment on points reserved, the following opinion and judgment was .filed by Woodward, JY:</p> <p>From the statements filed in this ease, we content ourselves with a brief reference to two facts that are conclusive in their effect upon our mind :</p> <p>First. That after suit was brought against Lowenstein, he made an agreement with the president of the bank for an extension of time upon the note, on the condition that he should • pay ten per cent, interest thereon, and should continue to do business with the bank as a depositor and otherwise.</p> <p>Secondly. That between August 16th 1875, the date of the maturity of the note, and December 8th 1876, the date of the closing of his account, he had on deposit in the bank sufficient funds to pay tire note.</p> <p>U nder these facts we consider the law of the case to be properly stated in Miller v. Stem, 2 Penn. St. 286, and that the surety or indorser is discharged (1), by virtue of an extension of the time of payment which was sufficiently definite to meet the requirements of the law, and (2), because there was a valuable and sufficient consideration in the case.</p> <p>Therefore, judgment is now entered in favor of the defendant, and against the plaintiff, non obstante veredicto.</p> <p>The plaintiff took this writ of error and filed the following specifications of error.</p> <p>1. The court erred in holding that the defendant was discharged by reason of the extension of time, as follows: “ By virtue of an extension of the time of payment, which was sufficiently definite to meet the requirements of the law.”</p> <p>2. The court erred in entering judgment upon a point which was not reserved.</p> <p>3. The court erred in directing judgment to be entered in favor of the defendant, non obstante veredicto.</p>

<p>After the lapse of more than two years from the entry of judgment and issuing of a writ of .fieri facias thereon, it is too late to take a writ of error, or certiorari, to review the subsequent action of the court below in refusing a motion to quash the fieri facias.</p>

<p>Ebkoe to the Court of Common Pleas of Luzerne county : Of July Term 1881, No. 116.</p> <p>Case stated, wherein Betsey Gaylord was plaintiff and Peter Shupp and Abram Nesbitt, executoi-s of Henderson Gaylord, deceased, were defendants, to determine the question whether a certain legacy of $500 per annum should be paid to said Betsey Gaylord by the said executors.</p> <p>The facts agreed upon in the nature of a special verdict were substantially as follows: The testator, Henderson Gaylord, died November 28th 1876, leaving a will, of which the following were the material portions:</p> <p>Item 1st, I give and bequeath unto my beloved wife, Betsey, the sum of two thousand dollars, to be used by her for the purpose'of erecting a dwelling house, if she so desires ; but I leave the use of the said sum discretionary with my said wife. And also the sum of five hundred dollars a ypar, in addition to .the sum of three hundred dollars per annum which she is to receive under our marriage settlement or agreement, recorded in the recorder’s office, in and for said county of Luzerne; the said two thousand dollars to be paid to my said wife one year after my decease, and the said five hundred dollars to be paid to her yearly, in each and every year during her natural life ; the first thereof to be paid one year after my decease, and the said yearly payment of five hundred dollars is to be paid out of rents accruiug under and from the lease of coal to The Wilkes-Barre Coal and Iron Company, if the said rents fail not to be paid; the same to depend upon the payment of rents under said lease, sufficient at least to pay the legacies herein charged thereon, and not to be paid out of or charged on any other part of my estate; but if my said wife does not survive me, then and in such case the foregoing legacies to her are to be void, and of no effect.</p> <p>Item 2d. I give and bequeath unto The Christian Church of Plymouth two hundred dollars a year out of the rents accruing under and from the said lease with The Wilkes-Barre Coal and Iron Company, so long as the said lease runs and produces rents sufficient at least to pay the legacies herein charged thereon, to be paid yearly in each and every year while said lease produces rents as aforesaid; the first to be paid in one year after my decease. . . .</p> <p>■ The bequests made in the foregoing will, viz : Five hundred dollars to my wife, two hundred dollars to The Christian Church, and six hundred dollars'to the trustees of The Christian Church for the benefit of indigent widows, I will and direct shall be paid out only from the rents of The Wilkes-Barre Coal and Iron Company, and «to be paid, one-half on the twentieth days of January and July in each and every year, and no other part of my estate is charged therewith.</p> <p>The residuary devises were in sevenths of his “estate, real, personal and mixed, that may remain after paying my other be.quests,” and were made to his six children and the issue of a deceased child.</p> <p>On January 1st 1874, the testator, then the owner of one fourth part of certain coal lands in Luzerne county, in conjunction with the other owners, made the aforesaid lease to the Wilkes-Barre Coal and Iron Company. The term was for 40 years, ‘‘ unless the said term be sooner ended under provisions herein after contained, or the merchantable coal on said premises be sooner exhausted and worked out.” The lease provided that if the lessee defaulted in its payments of rent for sixty days, “ the lessors, their lieirs or assigns could declare the term of the lease at an end.” The minimum rental under said lease was $50,000 per annum, payable in quarterly payments of $12,500 ; one-fourth of which sum was due to said Gaylord ; and the first quarterly installment after the death of said Gaylord became due January 1st 1877.</p> <p>On February 14th 1877, the Wilkes-Barre Coal and Iron Co. went into the hands of a receiver, and on December 22d 1877, the said lease was declared forfeited by a decree of the circuit court of the United States, on the joint application of Gay-lord’s executors and the other lessors. Payments on account of said lease of rents which had accrued prior to its forfeiture were made to the executors of Henderson Gaylord, in 1878, under decree of the United States circuit court, amounting in all to the sum of $5,527.65, out of which Betsey Gaylord received the sum of $500, as her yearly payment for 1877.</p> <p>On May 8th 1878, the executors and the other owners made a lease of the same coal lands to Thomas Beaver and Daniel Edwards for a minimum annual rental of $16,666.67, under which payments have been made to the executors in the year 1878, of $1,629.74; in 1879, of $860.10; in 1880, of $3,849.24.</p> <p>The estate of said Gaylord is solvent, there being assets, other than the rentals from said leases, sufficient to pay all legacies, other than those charged upon the rentals, as specified in said will.</p> <p>The case stated provided : “ If the court be of the opinion that the said legacy of $500 a year can and should, as matter of law, be paid to said Betsey Gaylord by the said Peter Shupp and Abram Nesbitt, executors, out of the rentals accruing under the lease with Thomas Beaver and Daniel Edwards, or that the balance of the $5,527.65, which became due and was paid in 1877, can be applied to the payment of the said legacy of $500 for the year 1878, and subsequent years, then judgment to be entered for the plaintiff for the sum of $1,500, together with interest, if in the opinion of the court interest should be allowed on said legacy; but if. not, then judgment to be entered for the defendants ; both parties reserving the right to sue out a writ of error to the supreme court.”.</p> <p>The court entered judgment for the plaintiffs for $1500, with interest thereon, Rice, P. J., filing the following opinion :</p> <p>I. The annuity for the year 1877 has been paid to the plaintiff out of the rents accruing in that year, but she further claims — and this raises the first question in the case — that the residue of rent collected in the same year and not appropriated to the other pecuniary legacies, is applicable to the annual payments on her legacy accruing in subsequent yeai's. We are quite clearly of the opinion, however, that this was not the intent of the testator, as shown by the language of the particular bequest which’we have quoted, and the general plan of his will; for,</p> <p>(1st.) It is the yearly payment, and not the vesting of the legacy, which is made to depend on the payment of the accruing rents. The condition, properly x’ead, is not that the legacy shall be paid if the rents fail not to be paid, but that the stipulated sum shall be paid yearly if the rents fail not. The testator evidently had in view a temporai;y suspension of the payment of rents, which he intended should operate as a temporary suspension of the annual bequest, but it is equally apparent that he did not have in view such a total suspension of the payment of rents during the lifetime of his widow as would malic it necessary to accumulate them as a fund, out of which her legacy should be paid.</p> <p>(2d.) The testator’s whole estate is devised by the will, and after paying the pecuniary legacies, the residue passes directly to the residuary legatees, his children and grand-clxildren. Thex’e is no provision for the accumulation, investment, or otherwise setting apart of the annual residue of rents as a fund for the payment of the annual bequests to accnxe in the future; for, as we have said, the testator evidently saw no necessity for such a provision; nor is its vesting in the residuary legatees held in abeyance, or made to depend on any contingency. There is no express power given the execxxtors to collect and receive the rents, and if there is any’ implied power for the purpose of paying the legacies as they annually fall due, it does not imply the fui’ther power to impoxxnd the x;esidue, and to withhold it from the residuary legatees, who were equally the natural objects of the testatoi’’s bounty until the death of the widow, or the expiration of the term of the particxxlar lease, as security against the possible failure in payment of rents in future years-sufficient to pay the annual bequests then falling due. The absence of any provision, such as we have indicated, shows quite clearly that the gifts to the residuary legatees appropriated at once to them any residue of x-ents accruing and received in any one year after paying, at the most, all arreax1 ages of the specific annual bequests then due. It follows that the residue of rents for the year 1877, after paying the annual bequest to the widow for the current year, went to the residuary legatees, and did not remain in the hands of the executors as assets for the payment of the annual sums accruing to her in the three subsequent years.</p> <p>II. The next question is one of much greater difficulty. It arises from this state of facts. The lease to the Wilkes-Barre Coal and Iron Company, referred to in the will, was for the term of forty, years from January 1st 1871, “ unless the said term be sooner ended under provisions hereinafter contained, or the merchantable coal on said promisee is sooner exhausted and worked out.” One of the conditions or provisions referred to authorized the lessors, “their heirs or assigns,” upon default in payment of rent, “ at their option, to declare the term of the lease at an end,” etc. In December, 1877, the lessee corporation having been previously placed in the hands of a receiver, the lease was declared forfeited by the circuit court of the United States on the joint application of the executors of the decedent and the other lessors, whose lands were combined with those of the testator in the lease. In the subsequent year the executors made a new lease of the same coal lands to different parties, at a considerably reduced minimum rental, under which they appear to have received enough as rents to pay this and the other legacies; and provided the money thus received is, as matter of law, applicable thereto, judgment is to be entered for the amount of the last three yearly payments. Whether the decree of the circuit court can bo attacked directly or indirectly is a question not raised by the facts of the case stated, and we’ therefore take it for granted that it was a valid decree so far as it concerns this proceeding, and that it effectually wiped out the former lease.</p> <p>The main question is thus presented, whether the forfeiture and termination of the specified lease by the unimpeached decree of a court of competent jurisdiction had the effect of totally extinguishing the plaintiff’s annual legacy. It was not argued that the gift to the plaintiff was intended, in any event, to be a general legacy, nor, strictly speaking, can it be said to be a demonstrative legacy. As to all other parts of his estate, excepting, certainly, the rents, or price of the coal, to be received from the coal then leased to the Wilkes-Barre Coal and Iron Company, the testator intended it to be specific. His intent in this particular is not left to inference, but is clearly, unequivocally, and repeatedly expressed. His words are, “to be paid out of the rents accruing,” etc., “if the said rents fail not to be paid,” “the same to depend upon the payment of rents,” etc., “ not to be paid out of or charged on any other part of estate,” “ shall be paid out only from the rents,” etc., “ and no other part of my estate is charged therewith.” These repeated expressions of the testator’s will show that this legacy was intended to be charged on some particular part of his es-state; that the object upon which it was charged was not designated for the purpose of furnishing a convenient means of payment ; and that all other parts of his estate were expressly discharged. In Walls v. Stewart, 4 H. 275, 281, the distinction between specific and demonstrative legacies is thus dearly stated : ‘‘ If the legacy be given with reference to a particular fund only, as pointing out a convenient mode of payment, it is considered demonstrative, and the legatee will. not be disappointed though the fund totally fail. But where the gift is of the fund itself, in whole or in part, or so charged upon the object, made subject to it as to show an intent to burden that object alone with the payment, it is esteemed specific, and consequently liable to be adeemed by the alienation or destruction of the object.” It is undoubtedly on this account, as much as any other, that courts are averse to construing legacies to be specific, and the intention of the testator that they should be so must be clear, and in the discovery of this intention, the principle having the greatest influence is not that the designated fund is charged with the payment, but that all other portions of the estate are discharged : Balliet’s Appeal, 2 H. 451. Judged by these principles, whether the bequest to the plaintiff be regarded as a gift of a part of the rents to be received under the described lease only, oras a. gift of mere quantity charged thereon, or as a gift of mere quantity intended to be charged on the coal estate, which was the subject of the described lease, it must be held to be in its nature, if not technically, a specific, and not a general, nor strictly a demonstrative legacy. But, as has been seen, one of the incidents of specific legacies is their liability to be adeemed, and this is not a question of intention. But this does not dispose of the whole question here involved, but brings us face to face with it. “ The rule seems to have prevailed in some of the old English cases that the ademption was a question of intention. But all this has been exploded long ago, and no such distinction is taken in the modern cases. It was finally settled that the only rule was to see whether the subject of the bequest remained in specie at the time of the testator’s death, for if it did not there was an end of the legacy, no matter' how it may have been disposed of Hoke v. Herman, 9 H. 301. It would seem logically to follow from the principle announced in the case cited, that the ademption of a legacy does not depend on an intent to revoke the gift, to be inferred from any act of the testator, but results, as a rule of law, from a destruction of the thing itself,- or the object o.n which alone the legacy is charged, and that, therefore, it may in effect, though not technically, take place on the happening of the event after the testator’s death. Arguing from these premises, it is urged by the defendants as an inevitable conclusion that the termination of the described coal lease effectually extinguished the plaintiff’s legacy. This supposed effect of the termination of the described lease requires us to examine more particularly the nature of the legacy, and to ascertain, if possible, from the whole will, what was the object on which the testator intended it to be charged. Lot it be assumed, then, that an alienation of the estate or fund by the testator, or its destruction by operation of law or otherwise in his lifetime, would have worked an ademption of this legacy, does it necessarily follow, from a fair construction of the whole will, that the testator intended to so charge the particular legacy that the power to extinguish it would be placed in the hands of his beneficiaries who are adverse in interest, and possibly without any diminution in the ability of the estate from which it was ultimately to issue to pay it? If the conclusion contended for by the defendants be correct, then the gift to the plaintiff might have been as effectually revoked by a cancellation of the lease by the voluntary act of the executors and the residuary legatees, for though the forfeiture in the case in hand was under a decree of court, that decree, nevertheless, rested on the exercise of an option by the executors.. This lease did not fall in by reason of the default in payment of rents, but by reason of the exercise of this option, to which the circuit court gave effect. If, after a fair construction of the whole will, the effect claimed is that which must legally be given to the forfeiture of the lease, then however monstrous it may seem that the gift to the testator’s widow may be made null by the voluntary act of his executors, or of his residuary legatees, who wrill profit thereby, the court is powerless; for the court is neither authorized to make wills, nor to reform them, but only to construe and give effect to them according to the expressed intent of the testator, if possible. But if the effect claimed here for the forfeiture of the particular lease was not only not in the mind of the testator, but is against his intent, as gathered from the whole will, then we are bound by every consideration of reason and authority to construe the particular expressions from which the effect is claimed to follow in subordination to the testator’s general intent. It is said that this is a canon of construction, so universally recognized as sound and just, that it would be mere affectation of learning to cite books in its support: S ii Aits wood, J., in Doebler’s Appeal, 14 Sm. 15. In obedience to this just rule, must not the words, “the lease of . coal to the Wilkes-Barre Coal and Iron Company,” be regarded, not as in itself the object of the charge, but as descriptive only -of the source from which the rents were to issue, upon which 'the legacy was charged. In this view, the plaintiff’s legacy would be regarded as specific, in that the produce in rentals of the coal estate then leased to the company was charged therewith only, and all other parts of the estate were discharged ; and demonstrative, in that the rents or produce of the coal, being primarily and solely charged therewith, the particular lease was referred to as the channel through which they were receivable. Several considerations seem to us to warrant this view of the testator’s will.</p> <p>(1st.) The legacy or annuity is ¿o be paid to the plaintiff during her life. There is no express declaration that it is to cease upon the termination of the lease, and no inferable intention that it should cease short of the term which the lease was to'run. In this respect, the language used differs from the language of the bequests to the Christian Church and to the trustees. In the first of these bequests the language is, “so long as the said lease runs and produces rents sufficient at least to pay the legacies herein charged thereon and in the second the language is, “ while the said lease produces sufficient rents,” etc. What is the proper construction of these latter expressions is a question not before us at this time, and therefore tve are not called upon to state their effect. We cannot say, however, that the different language chosen in the bequest to the plaintiff was used accidentally. But whether accidental or intentional, it has a different import, and it is quite clear that the non-payment of rent was not intended to designate a period ■when the payment of the plaintiff’s annuity should cease absolutely, and the words, “ if the said rents fail not to be paid,” “ the same to depend on the payment of rents under said lease,” do not particularly refer to the termination of the lease, but at the most to the temporary suspension of the payment of rent — an event, the happening of which was possible under the lease without its termination, or liability to forfeiture, and which, when it should happen, was intended to suspend the payment of the annuity for the time being.</p> <p>(2d.) There is nothing to indicate that the legacy was charged, or intended to be charged, on the particular coal lease because of any peculiarity in its conditions, nor because of the amount of the minimum therein reserved and required to be paid. That these considerations were not uppermost in the testator’s mind is evidence, first, from the fact that there was to be no abatement in the plaintiff’s annuity by reason of any diminution in the amount of rents received, the only condition being that enough should be received to pay it; and second, it is only the residue “ which may remain after paying my other legacies” '(hat was given to his residuary legatees, thus indicating that they are to be deferred until after the plaintiff’s legacy is fully satisfied. The reiteration of the condition that there should be sufficient rents to pay this legacy shows that, while the testator was particular that no other part of his estate should be charged therewith, the absolute insufficiency of rent was intended to be the only contingency which shonld suspend or defeat it. That the testator had some purpose in view in the reiteration of his directions in this particular is evident, and we are not at liberty to thwart it, but neither are we at liberty to assume that his purpose was to defeat the gift to his wife, of all others, by charging it on a lease which we knew could not bo lived up to, and must be forfeited. If, as is argued, this was such a lease, then, without charging the testator with having resorted to a cunning, which is nowhere apparent, we cannot hold that the inevitable forfeiture of the lease was the event he had in view in his reiterated directions that the payment of the legacy was to depend on the payment of sufficient rent. The fact, then, that the present lease is at a reduced rental does not materially affect the question. It might have been at an increased rental, but no inference could be drawn from that fact that the annuity was intended to increase in proportion to the increase in the rent, nor would it strengthen the plaintiff’s right to the annual, sum which the testator intended her to have, provided only there were sufficient rent to pay it.</p> <p>(3d.) But, to repeat, the testator had a purpose which we are to discover, not from a single sentence, but from his whole will, and that the lease was referred to for the purpose of describing and identifying the fund out of which this legacy -was to be paid, and that the fund thus designated was in his mind, the produce of the coal estate then under lease is further evidenced by the last clause in the will, which is presumed to contain the final expression of his intention, and in the light of which all that has gone before is to be read. The words are, “ shall be paid out only from the rents of the Wilkes-Barre Coal and Iron Company, and no other part of my estate is charged therewith.” Take this sentence literally, and it means rents paid by the Wilkes-Barre Coal and Iron Company, and in this sense the corporation to pay the rents was the primary thought, and the land or other estate from which they were to issue was secondary, if not immaterial. But if it is taken in the evident sense of the testator, it means that the rents of some particular land, coal, or other estate then under lease to the company are the subject of the charge; the name of the lessee is used in the place of the property itself, as if the testator had said rents of the Wilkes-Barre Coal and Iron Company property, and the lease then in force was regarded as merely the channel through which the rents were receivable.</p> <p>(4th.) If any inference is to be drawn from the testator’s direction, that the legácv is not to be paid out of or charged on any other part of his estate, it: is favorable to the view which we have taken. The will shows that the testator left personal property and other real estate, which the executors were directed to sell. It was quite natural that he should be particular in discharging this other part of his estate from this legacy. So, too, keeping in view all the time his general intention that the annuity should be paid each year, provided only that sufficient rents should be received to pay it, it is quite evident that he rested confidently in the belief that the .fund would not permanently fail, although he of course knew that the particular lease referred to was liable to be changed, modified, and even forfeited. He knew, also, that in this region the coal and surface are often sold and otherwise made available as though they were 'separate estates, and foresaw the time wlien it might be desirable, and to the advantage of his children and grandchildren, to dispose of. the surface free from all charges and incumbrances. For aught we know, the latter may already have been so disposed of by contract or otherwise in his lifetime. However this may have been, it was natural, believing, as he did, that he had already made abundant provision for this legacy, and having in mind the availability of the surface as distinct from the'coal,'that he should direct particularly it should ’be paid only out of the rents and profits of the coal estate referred to, and that all other parts of his estate should be discharged. If we have correctly intérpreted the testator’s purpose in this particular, and the motives which guided him in his restrictions as to the source from which the legacy was to come, we are justified in concluding that the testator meant by the terms “ no other part of my estate,” no other part of his estate except that then under lease. This construction is quite as reasonable as to suppose that the testator mistakenly regarded the lease as such, as a part of his estate separate and distinct from the reversion, and in contradistinction to the land or coal on which it was charged, and will give effect to his whole will, while the latter will not; for if, as is argued, the fee went to the i’esiduary legatees, the lease went with it, in the absence of specific devise otherwise. As the owners of the fee, they were entitled to the rents, either directly or indirectly, through the executors, subject, it is true, to the charge of the specific legacies. But if, by a discharge of all other parts of •his estate, the testator had in view not only his personal estate, his other real estate, and the surface of the lands under lease, but also the coal, which was the subject of the lease, and all rents t© issue,therefrom, except through the described channel, then a termination of the described lease, not by any act of the testator, nor by necessary operation of law, nor by failure of title to tbe land, nor by the expiration of the term, nor by the exhaustion of the coal, but by the voluntary act of the executors, or of the residuary legatees, who would profit thereby, either in taking advantage of a technical default in -the payr merit of rents, or accepting a surrender from the lessees, would close up the source of the plaintiff’s annuity, and thus defeat the testator’s evident intention to provide for her a sure, if not abundant, income during her natural life. We think it reasonable to say, that because a construction of the words, “ no other part of my estate,” etc., would defeat the gift in reference to which they are used, the very indefiniteness of the terms furnishes negative evidence at least that they were not intended to include the only sure source from which the legacy could be paid.</p> <p>We conclude, that the plaintiff’s legacy was not adeemed, or, more properly speaking, extinguished by the forfeiture of the lease, as set forth in the case stated, but is payable out of the rents of the estate of the testator made tbe subject of that lease, provided sufficient rents are produced to pay it. We are free to say that we do not feel confident that we have as adequately as they deserve met and answered the argument of the eminent counsel who urged the opposite conclusion ; but, on the other hand, after a careful consideration of the whole will taken together, we are satisfied that our conclusion carries out the intent of the testator as disclosed by its terms, and that no other conclusion would.</p> <p>III. As we understand the terms of the case stated, the main issue is as to the right of the plaintiff to recover her legacy, notwithstanding the forfeiture of the lease. There is no formal plea of want of assets, and if there were, the main issue would properly be determined first, and the secondary question could be raised on an application to stay execution until proceedings were had in the Orphans’ Court: Act of February 24, 1834, sec. 54, P. L. 83, P. D. 449, pl. 219; Breden v. Gilliland, 17 Sm. 34. In this view of the case stated, and with this understanding of the issue, we will enter judgment for the plaintiff, and if it is desired to raise the question of jurisdiction it may be done on a motion for stay of proceedings.</p> <p>And now, July 12th 1881, judgment is entered for the plaintiff for the sum of fifteen hundred dollars, with interest on each semi-annual installment from the time it was payable under the terms of the will: the dates when such semi-annual installments were payable being January 20th and July 20th in the years 1878, 1879 and 1880 j the amount to be computed by the prothonotary.</p> <p>The defendants took this writ of error, assigning for error the entry of judgment for the plaintiff.</p>

<p>In the Supreme Court of Pennsylvania : Of January Term 1883, No. 403.</p> <p>This was an appeal by the 'Fidelity Insurance, Trust and Safe Deposit Company, from the decision of the prothonotary of the supreme court dismissing exceptions filed to bail in error.</p> <p>The action in the court below was begun by a scire facias sur mortgage made by Joseph D. Koecker. Judgment was recovered thereon by the Fidelity Insurance, &c. Go. for $4,126, for want of a sufficient affidavit of defence. A writ of error wa,s then taken by said Koecker, and bail entered with two sureties in the amount of only $4,500, instead of double the amount of the judgment as provided by rule of court IV.</p> <p>Defendants in error excepted to the recognizance as insufficient in amount, and also to the sureties therein, but the prothonotary held, upon the authority of Ilosie v. Gray (23 Smith, 502), that security for costs is all that is necessary to render a writ of error a supersedeas, where the judgment is obtained upon a scire facias sur mortgage. He therefore dismissed the exceptions without calling on the bail to justify.</p> <p>Defendants in error thereupon took this appeal.</p>

<p>In an action on a non-negotiable promissory note the defendant proved, under the plea of non-assumpsit, that some seven years previously the plaintiff and defendant agreed by articles• under seal, that the title to the undivided moiety of certain premises, was in reality held by the plaintiff as security for the payment of a debt owing by the defendant of the same amount as that of the note.</p> <p>Held, that this evidence was irrelevant, as under the contract the payment of the sum mentioned therein was a condition precedent to the defendant’s right to demand a deed.</p> <p>Held, further, that a verdict was rightly directed for the plaintiff.</p>

<p>1. The question, whether a sum stipulated for iu a written contract, to be paid on its breach, is a penalty or liquidated damages, is a question for the court, to be determined by the intention of the parties as drawn from the words of the whole contract, examined in the light of its subject-matter and its surroundings; in this the court will consider the relation which the sum stipulated bears to the extent of the injury which may be caused by the several breaches provided against., the ease or difficulty of measuring a breach in damages, and such other matters as are legally or necessarily inherent in the transaction.</p> <p>2. White extrinsic evidence may be admissible, in such case, to explain the subject-matter-and relevant facts, the truth of such facts is for the jury, but their legal effect is for the court. The declarations of the parties at and before the execution of the writing, arc inadmissible except to show fraud or mistake.</p> <p>3. Bigony v. Tyson, 25 P. F. S. 157, explained.</p> <p>4. A. sold to B. his stock and good will in a certain grocery store and business, by an agreement under seal, which contained the following stipulation: “And the said A. hereby binds himself not to engage in or open a store doing the same kind of business within [certain defined limits], under a penalty of one thousand dollars, and in ease either party fail to comply with the terms and conditions of this agreement, he shall forfeit and pay to the other a sum of one thousand dollars. And the said A. also further binds himself hereby not to let or lease the new store building which he is now about ejecting on -the opposite side of Marshall street, to any person or persons to carry on the same kind of business .... under the same penalty of one thousand dollars as above stated.” In an action by A. against B. for an unpaid balance of purchase money, in which B. defended on the ground that A. liad violated his contract by doing the same kind of business within the defined limits: Held,</p> <p>‘ (1.) That the question whether the sums mentioned in the agreement were penalties or liquidated damages, was one of construction for the court, and it was error to submit to the jury the question as to the intent of the parties, as shown by the writing and their parol declarations at the time of its execution.</p> <p>(2.) That said sums specified in the agreement were penalties, and not liquidated damages.</p> <p>(3.) That it was not error to refuse to instruct the jury that in this action the defendant was in no event entitled to a certificate of any amount due him by the plaintiff.</p>

<p>Appeal from the Common, Pleas of Montgomery coxmty: Of July Term 1881, No. 62.</p> <p>This was an appeal by David Zell from an order of said court, refusing to open a judgment entered against him on a judgment note, for $941.49, to Sarah Burk, dated April 30th 1879, purporting to be signed and sealed by Isaac D'. Zell and David Zell, on which judgment was entered by virtue of the warrant of attorney contained therein, to June Term 1881, Mo. 70.</p> <p>On May 17th 1881, David Zell presented his petition to said court, setting forth that his real estate had been levied on under an execution issued on said judgment; that his name as it appears on said judgment note was not written by him or by his authority, concurrence or permission, but was fraudulently forged thereon ; he therefore prayed that the judgment be opened and'he be let into a defense, execution to stay, &c.</p> <p>A rule was granted, and depositions taken, which tended to show that the signature of the petitioner to said note was forged,under the following circumstances: Isaac. Zell, brother of David Zell, owed to one Mrs. Burk the sum of $941.49 ; on April 28th 1879, he procured David Zell to exchange two promissory notes with him, aggregating said sum, payable one and two years after date. Isaac Zell, having indorsed David Zell’s said two promissory notes, offered them on April 30th 1879, in payment of said indebtedness, to Mrs. Burk, who refused to accept them in that form, but she was willing to apeept a judgment note. Her agent thereupon filled up the judgment note in suit and gave it to Isaac Zell, who took it home with him, signed his own name and forged his brother’s name •thereto, and returned it to Mrs. Burk. David Zell knew nothing of this until September 2d 1880, when, as testified to by his sister, Isaac Zell, in conversation with David and herself, said to David : “ David, I must confess to you concerning this note. Those two notes which you gave me — when I took them to Mrs. Burk, she was dissatisfied and would not receive them, and I took the two notes and put them into one note and signed your name to it.” David Zell, in cross-examination, did not deny this statement, but said that he did not know what kind of a note it was that Isaac referred to, until very recently when he consulted counsel to get the judgment opened; that he did not, during the conversation referred to, ask Isaac any questions about it, because he was provoked; he did not see Mrs. Burk about it, “ because ho thought there would be honor enough in them to let a body know; didn’t even ask when they would be due.”</p> <p>The Court, after argument, discharged the rule, Boss, P. J., saying in an opinion filed: — “It is only because the court believes that the silence, the passive action (if there be such class of action) and acquiescence on his part, now conclude him from availing himself of the knowledge of the fact, which knowledge he possessed at a time when its disclosure might have largely availed the plaintiff. For this reason, and this reason only, the court declines to make the rale absolute; and therefore the rule is dismissed.”</p> <p>David Zell thereupon took this appeal, assigning for error the order of the court discharging this rule, and refusing to open the judgment.</p>

<p>School directors have no power to appoint a district superintendent for the public schools in a township, and where in such township the school directors engaged the services of a man whom they called “principal of the schools,” but whose duties under the contract were substantially those of a district superintendent under the school law:</p> <p>Held, that the contract was without warrant of law and void.</p>

<p>1. Although legislative authority be given to impose a.tax for a certain purpose, yet if the tax levied be clearly in excess of the sum required f01. the purpose, a court of equity will enjoiu its collection to the extent of the excess.</p> <p>2. A building tax of a school district cannot be used for ordinary school purposes, and where such a building tax was levied for the purpose of using a portion thereof to pay a deficit in the general fund for the preceding year, which deficit was due to the expense incurred in erecting and furnishing a new school building, there being in said preceding year no building fund: Held, that the levying and collection of such tax would be enjoined.</p>

211. This was a certiorari to said court, and an appeal of Margaret Hendricks from its decree, sustaining the exceptions to and setting aside the report of a jury appointed to assess the damages caused to said Margaret Hendricks by a change of grade of .Haws avenue in the Borough of Norristown.

Ebkob to the Court of Common Pleas of Schuylkill county: Of January Term 1883, No. 280. Assumpsit,.by Andrew Comry to the use of Andrew Kobertson, against the township of Mahanoy. The narr. contained the common counts for work and labor done and special counts upon thirteen several warrants or orders differing only in dates and amounts. The following is a copy of one : “No. 81. Mahanoy City, June 12th 1874.

366. This was an appeal by Peter F. Coleman from an order of said court, dismissing his exceptions to and confirming an appraisement of certain real estate, levied upon in execution, and awarding $300 of the proceeds of a sheriff’s sale thereof, to the defendant in the execution, under his claim for exemption. The facts of the case were as follows : On April 19th 1880, Peter Coleman obtained judgment in the common pleas of Montgomery county against T. Coleman for $1,300.

109. This was an appeal by Elizabeth L. Hamilton, from a decree of said court dismissing her exceptions to, and confirming the report of an Auditor appointed to distribute a fund in court, being the balance of the proceeds of a sheriff’s sale of the real estate of Henry E. Newberry and Israel D. Newberry. They had been partners, trading as Newberry & Brother. The sheriff had distributed the greater part of the fund to lien creditors, and he paid the balance, $800, into court.

Appeal of John C. Johnson, trustee for the creditors of George and Caleb H. Malin, from a decree of the Common Pleas of Montgomery coimty, upon his account as trustee, filed in said court, setting aside the.report of the Auditor thereon, for want of jurisdiction : Of July Term 1882, No. 152. .

<p>An action will lie by one bondholder against a corporation for interest due on a bond, although the principal is not yet due, and notwithstanding the fact that the mortgage securing the bond provides that upon default in payment of interest, the trustees to whom the mortgage was executed shall, at the request of the holders of a certain amount of bonds, proceed, by writ of scire facias, to collect the interest and principal of the debt for the benefit of all the bondholders equally.</p>

345 and 346. Scire facias, by the Philadelphia Trust, Safe Deposit and Insurance Company, administrator, d. b. n. c. t. a. of William Richardson, deceased, against James Murphy, Administrator d. b. n. ,c. t'. a. of Michael Murphy, deceased. The original judgment was obtained by Richardson against Michael Murphy in his lifetime, on March ,12th 1862, for $2,238.36.

7. Case, by Catherine Rigony, widow of James Whalen, deceased, and John Rigony, her husband, and John Whalen, Martin Whalen and Frank Whalen, minor children of James Whalen, against the county of Schuylkill, to recover damages for the death of said James Whalen through the falling of a bridge in the borough of Gilberton, Schuylkill county, caused by the alleged negligence of defendant. Plea, not guilty.

33. This was an appeal by Francis W. Boyer from a decree of the said court sustaining a demurrer to? and dismissing a bill in equity, filed by said Boyer praying for an injunction to restrain tlxe commissoners of Schuylkill county, defendants, from levying a tax on ten shares of National Bank stock held by said Boyer. The following is an abstract of the bill: 1.

<p>Appeal from the Orphans’ Court of Montgomery county : Of January Term 1883, No. 176.</p> <p>This was an appeal by Horace Haverstick, administrator of Mrs. Melcense McAlonan, from a decree of the said court dismissing his exceptions to the report of an Auditor in the matter of the distribution of the balance in the hands of the executors of Eli Stover, deceased, and confirming the said report.</p> <p>The facts of the case were as follows: Eli Stover died September 4th 1881, having by his will, dated October 11th 1879, proved September 20th 1881, provided, inter alia as follows:</p> <p>“Item. I give, devise and bequeath in the first place unto the children or legal representatives of my deceased sister, Mary, who was intermarried to Abraham Hendricks, the sum of four thousand dollars ($4,000,) in five equal parts or shares as follows: To Mary Hartzell, wife of John Hartzell, eight hnudred dollars. To Aaron H. Harley, son of Isabella Iiarley, deceased, the sum of eight hundred dollars. To Aaron Hendricks the sum of eight hundred dollars. To Mary Ann Detwiler, wife of William Detwiler, the sum of eight hundred dollars. To Melcense Shrawder (widow) the sum of eight hundred dollars.</p> <p>“ Should any of the above named not survive me, then their share to go to their legal representatives, in equal parts or shares, and should any of them die before the distribution of my estate, without heirs: then the part allotted to such shall be divided equally among the others named.”</p> <p>The said Mrs. Melcense Shrawder, widow, married Archie McAlonan in May 1881, about four months prior to testator’s decease. She died November 19th 1881, about ten weeks after the testator. She left her husband surviving, but no issue. Letters of administration on her estate were granted to Horace llaverstick, who appeared before the Auditor appointed to distribute the estate of Eii Stover and claimed the $800 as bequeathed to Mrs. Shrawder under the above cited bequest. The Auditor rejected the claim of Mrs. McAlonan’s administrator and decided that the testator meant that if Mrs. Shrawder died without children, her share should go to “ the others named,” and also that the husband was not “ an heir.”</p> <p>The Auditor therefore distributed the legacy or sum of $800 which would have gone to Mel cense McAlonan, had she been living, to Elizabeth Hartzell, Aaron II. Harley, Aaron Hendricks and Mary Ann Dotwiler.</p> <p>Exceptions filed by Horace llaverstick, administrator of Mrs. McAlonan, deceased, to the said findings and report of the Auditor were dismissed by the court and the report was confirmed. Whereupon, the exceptant took this appeal, assigning for error the decree of the court.</p>

<p>Error to the Court of Common Pleas of Schuylkill county: Of July Term 1882, No. 171.</p> <p>Case, by Peter Iloerper against William Hoff and Esther, his wife, to recover the value of goods sold and delivered to defendants. The narr. averred that the articles were contracted for by the said Esther Hoff and were necessary for the support of her family. Pleas, non-assumpsit, payment, with leave, etc., and coverture as to Esther Iioff.</p> <p>On the trial, before Bechtel, J., the plaintiff produced a ledger containing entries charging the defendants jointly for goods. These entries had been taken daily from the blotters and entered in the ledger by Nicholas Lauer, the plantiff’s clerk. The blotters were not produced. With the exception of a few items for dry-goods, the entries were in lumping amounts for “sundries.” Lauer could not testify as to the character of these “ sundries.” They were delivered sometimes to Hoff, and at other times to his wife and charged to their joint account at the direction of Koerper. The witness testified that the first time Mrs. Iioff came to the store he mentioned the order of Koerper to “give no goods to Mrs. Hoff unless you charge them to Hoff and to his wife,” and that Mrs. Hoff replied: “All recht,” meaning “all right.” This was denied by Mrs. Hoff.</p> <p>The court refused to charge the jury, as requested by defendants, that under all the evidence the verdict must be for the defendants, and left to the jury the question whether the evidence established a contract on the part of Mrs. Hoff to pay for necessaries out of her separate estate.</p> <p>Verdict for the plaintiff for $90.60 and judgment thereon. The defendants took this writ of error, assigning for error the action of the court in refusing their point and in charging the jury as above.</p>

276. Trespass quare clausum f regib et de honis asportatis, by Alanson Knapp against Samuel Hortung, to recover damages for breaking and entering plaintiff’s close, and carrying away certain timber, ties of the alleged value of $2,500. Pleas, not guilty, and the statute of limitations. The case was twice tried. The first trial resulted in a verdict for plaintiff. ' On error to the supreme court, the judgment thereon was reversed and a new trial ordered. See 23 P. F. S. 290.

■Error to. the Court of Common Pleas of Schuylkill county: Gf January Term 1883, No. 346. Scire facias sur mechanics’ lien filed by P. Kearns & Co., against the Mountain City Hall and Market House Association, lessee of a tract-of land in the borough of Pottsville, Schuylkill county.

273. Debt, by John P. Hofman against Morris Ilohrheimer, to recover a balance of rent alleged to be due under a cei'tain lease.

285. Case, by William Butler against Edward Cooper and Abraham S. ■ Hewitt, trading as Cooper, Hewitt & Co., and operating tlie Durham Iron Works, to recover damages for personal injuries sustained by plaintiff through the alleged negligence of the defendants in not keeping in proper repair an elevated tramway operated, by said defendants. Plea, not guilty.

282. _ • _ Debt, by Dennis Lane to the use of Anthony T. Williams against Charles Smith, on a bond in the penal sum of $2,200, conditioned for the payment of $1,100, given by Lane to Smith, and by him assigned for a valuable consideration to Williams. PÍea, payment, with leave, etc. On the trial, before Watson, P. J., the plaintiff put in evidence the bond, with the assignment to him for value indorsed thereon, and rested.

121. The record showed the following facts: — On January ,6th 1882, William H. Hackenberg, Esqüire, a justice of the peace of Northumberland county, issued a summons- wherein D. M.' Osborne, G. W. Allen and J. H. Osborne, trading as ,1). M. Osborne & Co., wrere plaintiffs, and Enoch Everitt was defendant, returnable January 14th 1882.

<p>Error to the Court of Common Pleas of Bucks county: Of January Term 1883, No. 412.</p> <p>Case, by Amy X. Ilollahan et al., widow and minor children of Michael Hollaban, deceased, against Edwin X. Lewis, Franklin P. Gowen and Stephen A. Caldwell, receivers of the Philadelphia and Reading Railroad Company, to recover damages for the death of said Michael Hollaban, through the alleged negligence of defendants in the management of their trains.</p> <p>On the trial, before Watson, P. J., the only question at issue was the extent of defendants’ liability1, the fact of their negligence being admitted. No points were presented by either of the parties, but the court, in answer toan oral request of the defendants to instruct the jury to limit the damages to $5,000 and interest thereon, under the Act of April 4tli .1868, charged that the said Act was avoided by Art. III. § 21, of the Constitution of 1874, and that therefore the jury should estimate the damages without respect to its provisions.</p> <p>Verdict for the plaintiffs for $12,268.66 and judgment thereon. The defendants thereupon took this writ of error, assigning for error the said instruction of the court.</p>

338. Trespass, by James McKee against E. C. Christman and T. M. Taggart, originally brought before a justice of the peace. A judgment was rendered by the justice in favor of the plaintiff for $175, from which an appeal was taken to the common pleas.

339. Case stated, wherein Taylor Dillon was plaintiff and Christiana L. McGee et al. were defendants, setting forth the following 'facts : On April 23d 1881, the defendants brought ten suits before a justice of the peace in the township of hsockainixon, Bucks county, against ten different defendants.

46. E jectment, for three lots of ground in the borough ofShamokin, by Michael Salter and others, children of William Salter, deceased, against William Owen. The latter died before trial, and Samuel Owen- and others, his children and heirs at law were substituted as defendants. Plea, not guilty. On the trial, before Rockefeller, P. J., the court ruled out all the plaintiffs’ offers of parol evidence, and directed a verdict for defendants.

101. This was au appeal from a judgment of a justice of the peace, entered in favor of John Bertie against W. D. Weidenhamer for $274.96, in an action brought by Bertie against Weidenhamer for work and labor done.

190. Ejectment, by Ellis L. Orvis against Ario Pardee and R. G. Cook, for a tract, of land, described in the writ as situated in Beech Creek township, Clinton county, being part of a tract known as the Rebecca Kelso tract. The defendants disclaimed as to a part of the tract admitted to be situated in Clinton county, and pleaded not guilty as to the residue, which, they claimed was situated in Centre county.

49. This was a certiorari and appeal of L. B. Llewellyn, Gabriel O. & M. P. Stiver, John Keener, William McGregor, John Mayes, Charles Parker and liobert Miller from the decree of the said court, dismissing their exceptions to and confirming the report of an Auditor appointed to distribute the proceeds of a sheriff’s sale of certain property of Austin Curtin & Co. Before the Auditor (S. M. McCormick, Esq.), the facts appeared to be as follows : On March 24th 1880, Austin…

181. Jxxdgment was entered May 15th 1877, upon a judgment note, in favor of W. H. Marr, to use of Frank S. Marr, assignee, against A. G. Marr, for $8,000. Upon petition of defendant the judgment was opened, and an issue directed to determine how much, if anything, was due to the plaintiff on said judgment.

<p>Error to the Court of Oyer and Terminer of Lebanon count]/ : Of January Term 1883, No. 320.</p> <p>Indictment of Jacob W. Staeger for burning the barn of Jefferson Light. Plea, not guilty.</p> <p>The indictment contained seven counts. The first six charged the defendant with feloniously, willfully and maliciously setting fire to a barn, within the curtilage, and a parcel of the dwelling-house of Jefferson Light; said counts being for felonious arson Tinder section 337 of the Crimes Act of March 31st 1860 (P. L. 415). The seventh count was for “ feloniously, unlawfully, willfully and maliciously ” setting fire to and burning “ a certain barn of the aforesaid Jefferson Light, there situate, with intent to destroy the same,” &c. This being intended as a count for the misdemeanor of burning a barn, under section 138 of the same Act.</p> <p>The verdict of the jury was in the following words : “ That they find the said Jacob W. Staeger, the prisoner at the bar, guilty of a misdemeanor in wilfully and maliciously having set fire to the barn mentioned in the indictment.”</p> <p>A motion in arrest of judgment and for a new tidal was overruled by the court, and judgment was entered in favor of the Com moñ weal til, and sentence of fine and imprisonment entered against the defendant, whereupon he took this writ, assigning for error, “ that all the counts in the indictment under which he was tried, charged the defendant with felonies, and the verdict of the jury convicted him of a misdemeanor for which he was not indicted or tried.”</p>

<p>Error to tbe Court of Common Pleas of Union county: Of July Term 1883, No. 22.</p> <p>Assumpsit, by George A. Guyer against Jane O. Harrison and E. C. Harrison, ber husband, to recover the value of professional services rendered by tbe plaintiff to Jane C. Harrison, as ber attorney-at-iaw. Pleas, non assumpsit, payment, and as to the defendant, Mrs. Jane C. Harrison, coverture.</p> <p>By agreement filed, tried by jury was dispensed with, and tbe case was tried before the court (Barnett, P. J.), under tbe provisions of tbe Act' of April 22d 1874. Tbe recital of tbe pleadings, the findings of fact, and tbe conclusions of law by the court, were as follows :</p> <p>Tbe narr. charges tbe defendants jointly for services rendered as tbe attorney and solicitor of the defendants, and upon their retainer, in and about tbe prosecuting and defending divers suits for them, and for fees due in respect thereof; as also for drawing and copying various instruments of writing; and for divers journeys and other attendance, consultation and advice, made, performed and given at their special instance and request; as well as also in tbe common counts, in consideration of 'which they promised, &c., &c.</p> <p>A supplemental narr. charges the defendants jointly, in tbe first count, for professional services, a's tbe attorney and solicitor of said defendants, and upon their retainer, in prosecuting and defending divers suits, and for fees due in respect thereof ; in tbe second count for professional services as their attorney, counselor and solicitor in and about the business of the said defendants, for and in behalf of tbe separate estate of tbe said Mrs. Jane O. Harrison and at her special instance and request; and in and about the separate estate of tbe said Jane O. Harrison at ber special instance and request, and as tbe attorney, counselor and solicitor of ber and ber said separate estate. In tbe third count tbe charge is foi; professional services in behalf of the separate estate of the said Mrs. Jane C. Harrison at her special instance and request; and the 4th count is for necessaries furnished to Mrs. Harrison at.her special instance and request, in the- shape of work and labor, &c., about and for the separate estate of the said Mrs. Harrison, and as her special attorney, counselor and solicitor.</p> <p>An amended supplemental narr. in the first count charges Mrs. Jane O. Harrison, one of the defendants, for professional services, as her attorney aud solicitor, and upon her retainer, about her business, and for fees due in respect thereof. The second count charges-for professional services, as the attorney and counsellor and* solicitor of Mrs. Harrison, one of said defendants, rendered at her special instance and request, for and in behalf of her separate estate. The third charges Mrs. Harrison, one of said defendants, for professional consultations upon legal business during three years and six months, for and on behalf of her separate estate, and at her special instance and request. And the fourth count charges for necessaries furnished to Mrs. Harrison, one of the defendants, in the shape of work and labor, &c., in and about and for the necessary improvement of, and the enhancement of, and repairing to the separate estate of the said Mrs. Harrison, at her special instance and request, by the plaintiff, as the attorney, counsellor and solicitor of her and of and for her separate estate.</p> <p>As it appears from the evidence, William Cameron executed what purported to be his last will and testament on the 26th day of March, 1875, of which he appointed his sons-in-law John B. Packer and Ur. Francis O. Harrison the executors. He died in September 1877, seised and possessed of a large estate, both real and personal, all of which he had disposed of in said written instrument. He had therein given to Mrs. Harrison,' his daughter, and one of the' defendants, a large portion of his estate, but not so large as would have descended to her had lie-died intestate. Being therefore dissatisfied, Mrs. Harrison-joined with some other of the heirs to contest the validity of-said alleged will. The plaintiff and other distinguished members of the bar became retained for that purpose. The matter in due time came before the court on an application for an issue,which after argument and due consideration was refused. The other counsel, originally retained, then dropped their connection with the case and the plaintiff came to be more especially the counsel of Mrs. Harrison, and at her special instance and request rendered his professional services in and about an appeal to the supreme court from the lower court’s action in refusing the issue. The supreme court, however, affirmed the proceedings, and the validity of the will was finally established.</p> <p>■ We find the following as the facts in the case:</p> <p>1. Jane O. Harrison, one of the defendants, is a daughter of the late William Cameron, deceased, and is a married woman, the wife of Dr. Francis C. Harrison, the other defendant.</p> <p>2. She engaged the professional services of the plaintiff, who is a member of the Union county bar, for the purpose of contesting the last will and testament of the said William Cameron, in which her husband, Dr. F. C. Harrison, the other defendant, was named as one of the executors.</p> <p>3. As the counsel and attorney of Mrs. Harrison, the plaintiff rendered her his professional services, extending through a period of three years and upwards, during which time very many consultations were had between them ; a great many letters were written by the plaintiff, and a great deal of labor was performed by him in the necessary preparation for contesting said will; and about five hundred days of his time were occupied in this business.</p> <p>4. No special contract was executed by the plaintiff and Mrs. Harrison, determining the compensation which the plaintiff should receive, but the services so rendered by liitn at her special instance and request were reasonably worth fifteen hundred dollars, the amount claimed.</p> <p>5. The efforts of the plaintiff were not successful ; and the validity of the will of the said William Cameron was established by the decision of the supreme court: 4 Out. 458.</p> <p>6. Dr. F. C. Harrison did not assume any legal attitude of antagonism towards the said will, of which he was one of the executors.</p> <p>The contention as to the law applicable to these facts is whether the plaintiff is entitled to recover, notwithstanding the coverture of Mrs. Harrison is interposed as a defence. This depends upon the extent of a married woman’s ability to make a valid contract. At common law she could do this in four instances. (1) When her husband has been absent unheard from for seven years. (2) When he has been banished from the country. (3) When he is an alien, and she being deserted by him, does business as a feme sole. (4) When by local custom she is a feme covert trader. See 1 Wharton’s law of Contracts, § 76.</p> <p>The defendant does not fall within any of these instances, and has therefore no common law power to contract, She has, in Pennsylvania, no greater capacity to form contracts than at common law — except only as to her statutory separate estate : Bear’s Administrator v. Bear, 9 Casey 525; Shannon v. Shultz, 6 Norris 481; Kuhns v. Turney, 6 Norris 497.</p> <p>Much confusion, doubtless, has arisen from failing to distinguish between the common law separate estate of a married woman and her statutory separate estate in Pennsylvania. Indeed the latter is not a separate estate at all. It is a legal and not an equitable estate. It is to be enjoyed in company with her husband, and not independently or as if a feme sole: I Bishop’s Law of Married Women, §§ 792 to 79S; Todd’s Appeal, 12 Harris 429; The Pennsylvania Co., &c. v. Foster, 11 Casey 134; Thomas v. Folwell, 2 Wharton 11; 30 Amer. Decis. 230.</p> <p>Some of the cases cited by the plaintiff refer to the common law separate estate and are not authority in the present ease. In point of fact there is in this case, so far as this contest is concerned, neither common law nor statutory separate estate. The plaintiff’s services were secured to contest a will that devised an estate to Mrs. Harrison. If that will was a valid instrument then the testator having therein disposed of his whole estate, no part of William Cameron’s estate ever could descend, and none of it had then descended to the contestant. But it was to secure the alleged descended estate that the plaintiff’s services were employed, and as the sequel proved the will to be good, there was, of course, no estate to be bettered or improved by those services. That Mrs. Harrison had other legal estate does not better the case. It was not in or about, that estate the plaintiff was employed, and neither was it bettered or improved by the employment; and in the absence of a general legal capacity to contract, it could not be held liable for her debts, except for necessaries for ike support and maintenance of her family : Williams v. Hugunin, 69 Ill. 214; 18 American Reports 607.</p> <p>But the debt sued for was not contracted for such necessaries ; and is not so claimed in either of the narrs. filed. It is therein alleged to be necessaries in the shape of work and labor for the necessary improvement of, and the enhancement of, and repairing.to the separate estate of Mrs. Harrison. But, as we have seen, there was no such separate estate, and a married woman has no general capacity to contract. A bond and warrant of attorney executed by her under the circumstances would have been void : Dorrance v. Scott, 3 Wh. 313. A judgment entered thereon and a sale of her real estate by virtue thereof would not have divested her title: Caldwell v. Walters, 6 II. 79. Her written agreement would have been void as an obligation : Rumfelt v. Clemens, 10 Wr. 455; Gliddon v. Strupler, 2 P. F. Smith 400; Graham v. Long, 15 P. F. Smith 383. If her judgment or written agreement is void, except when specially authorized by and executed in conformity with law, for a stronger reason the merely implied contract of a married woman, under similar circumstances, is a nullity. If she is liable on her contracts for professional services in her unsuccessful attempt to set aside a will, then she is liable for professional services employed in any litigation, and if liable for services employed in litigation it is difficult to see why she would not be liable in all contracts as if absolutely a feme sole.</p> <p>Tne defence of coverture may seem to bo technical, and the failure to recover a great hardship and apparent injustice to the plaintiff', but to afford relief to individual hardships would open the gate to a flood of greater evils against which the law is intended to protect.</p> <p>The conclusion of law at which we have arrived, therefore, is that however meritorious the plaintiff’s claim the coverture of the defendant bars its recovery.</p> <p>The prothonotary is directed to file this decision and give notice thereof to the parties or their attorneys, and if no exceptions are filed in accordance with the Act of Assembly within thirty days after service of such notiee, to enter judgment in favor of the defendants.</p> <p>Plaintiff filed the following exceptions to the foregoing decision :</p> <p>1. The court erred in ruling that the defendants were not bound to pay tlio plaintiff for professional services rendered for and in behalf of the separate estate of Mrs. Jane C. Harrison, one of the defendants.</p> <p>2. The court erred in ruling that if a married woman could not bind herself by her judgment or written agreements her implied contract under similar circumstances is a nullity.</p> <p>3. The court erred in ruling that a married woman is not liable on her implied contract for professional services in any litigation unless she is successful in such litigation, in favor of her said separate estate.</p> <p>4. The court erred in ruling that in this case the plea of coverture is a bar to a recovery by the plaintiff.</p> <p>5. The court erred in not finding for the plaintiff.</p> <p>Said exceptions were overruled in the following opinion :</p> <p>Pee Curiam. It is hut proper for the court to say in reference to the first exception that we think we have not so stated the law, because we have not found as a fact that Mrs. Harrison had any separate estate.</p> <p>In reference to the second, we think we have not so stated any general principle of law. We have simply said in arguendo that in this case, “ under the circumstances,” Mrs. Harrison’s judgment would have been void ; her written agreement, which falls short of a judgment, would have been void as an obligation, .and for a stronger reason her implied contract, which falls short of a written agreement, is a nullity.</p> <p>In reference to the third, we think we have not so stated the law. We have not attempted to state any abstract principle óf law, unnecessary to the decision. We have simply ruled that under the facts of this case the coverture of the defendant is a successful defence. See further, in support of such ruling, Hicker v. Haak, 7 Norris 238; Hughes v. Duthridge Glass Co., 15 Norris 160.</p> <p>We therefore overrule the exceptions and order judgment to be entered according to the decision previously filed.</p> <p>The plaintiff thereupon took this writ of error and filed the following assignment of error :</p> <p>The court erred in ruling that however meritorious the plaintiff’s claim, the coverture of the defendant was a bar to his recovery, and in ordering judgment to be entered for defendants.</p>

3, of Philadelphia county: Of January Term 1883, No. 411. Quo warranto, by the Commonwealth of Pennsylvania, at the relation of Lewis C. Cassidy, Esquire, Attorney-General, directed to David H. Lane, requiring him to show by what authority ho exercised the office of recorder of Philadelphia.

461. Debt, by the commonwealth of .Pennsylvania at the suggestion of S. Solomon, for nse of Chester S. Sartwell, prothonotary of McKean county, against Chester S. King, sheriff of said county, and E. B. Dolley and H. B. King, upon the official bond of the first named defendant, upon winch the other two defendants were sureties.

232. '■ ..... . Ejectment,, by the. Enterprise Transit Company against Patrick Slieedy aud Maryette Sheedy, bis wife, in tlie right of tlie Mary'étte Slieedy, and' Roberts & Lockwood, terre-ten'ants, for the, possession of a tract'of about; 3Ó acres;of land in Bradford tbwnsjiip.''Plea','not guilty. - '■ ' On the trial, before Williams, P. J;, the plaintiff offered in evidence a lease, .dated September 11th 1876, signed and sealed by.

<p>1. A., whose business was the buying and selling of real estate for others upon commission, negotiated a sale of real estate for B., for which A. was by special agreement to receive §10,000. For the year in which said sale was negotiated A. had no license as a real estate broker. In an action by A., against B., to recover the §10.000, the jury found a special verdict subject to the question reserved, whether, upon the above stated facts, the plaintiff was entitled to recover. Held, that A. was not entitled to recover.</p> <p>2. Whenever it appears on the trial of an action of assumpsit (whether in the plaintiff’s case in chief, or upon cross-examination, or by way of defense, under the plea of non assumpsit) that the plaintiff’s claim rests upon an illegal foundation the court will not lend its aid to enforce it. Where, however, the illegal transaction is not involved in the case trying, but in a matter distinct and collateral, a-recovery may be had.</p>

228. ' This was an appeal by defendant .from the judgment of a justice of the peace. The transcript was not printed with the record, but it was stated in tlie paper booEs that the action was trespass.

<p>1. Parol evidence is admissible to show a verbal contemporaneous agreement, which induced the- execution of a written obligation, though it may change the terms of the written contract.</p> <p>2. In a suit by a building association against a surety on a bond given to secure a loan made by the association to a member thereof, evidence that it was the custom of the association to secure its loans'by real estate security, which was treated as primary security and was first resorted to, is incompetent.</p> <p>3. In such a case it is error to allow the defendant to be asked ■whether he would have, signed the bond in suit unless it had been understood and agreed at a meeting of the directors that certain real estate should be mortgaged as security for the loan, and be first liable for its repayment.</p> <p>4. The by-laws of a building association provided'that borrowers from it “shall secure the payment of said loan with legal interest by satisfactory bond or mortgage upon real estate,” etc. Held, that the officers of the association had power to take both securities, and if both were taken, with sureties on the bond, the presumption would be that the officers relied upon the security of both; and that the association was not restricted to the pursuit of one before the other.</p> <p>5. When an instrument of writing is sought to be impeached by an equitable defence, the uncorroborated testimony of the defendant is insufficient to carry the case to the jury.</p>

<p>Error to the Court of Common Pleas of Perry county: Of January Term 1883, No. 42.</p> <p>Debt, by the Pennsylvania Canal Company against George Losh, to recover the statutory penalty imposed by the Act of April 10th 1826, § 9 (P. L. 304), which provides as follows :</p> <p>“ That no person shall construct any building, wharf, basin, or watering place, or make and apply any device whatsoever, for the purpose of taking water from any canal or feeders, reservoir, dam, or pool, belonging to, or forming part of any artificial- navigation, constructed, as aforesaid, without first obtaining permission therefor from the directors, managers, or commissioners of such navigation, in writing; and, if any person shall offend against this section, by commencing or making any such construction, or apply such device without such permission, or shall not conform to the direction of such directors, managers, or commissioners, in respect to the location and size of such building, wharf, basin, watering place, or device, as aforesaid, such person shall, for every such offence, forfeit a sum not exceeding one thousand dollars.”</p> <p>Pleas, nil debet, and license.</p> <p>On the trial, before Junkin, P. J., the defendant admitted the taking of the water from the plaintiff’s canal, and offered to prove in defense that he had obtained a verbal grant from Wierman, chief engineer of the Pennsylvania llailroad Company in 1860 or 1862, when that company owned the canal, to tap the basin, and that in pursuance of that grant, he had entered into possession, made valuable improvements, and had uninterruptedly used the waters of said eaual for his mill race from 1861 down to 1878, when the action was first brought; that he obtained this right in consideration of his permitting the said company to fill up the bottom of a culvert under the canal below the tail race of his saw-mill, which liad the effect of impeding his water wheel.</p> <p>The court refused to admit this evidence as a justification, or as granting a right to tap the canal, because the Act of Assembly required that such grant must be in writing, and obtained from the directors, managers or commissioners of said navigation, but admitted it in mitigation of damages.</p> <p>The court instructed the jury to render a verdict for the defendant. -Yerdict accordingly for $1, and judgment thereon. The defendant thereupon took this writ of error, assigning for error the refusal of his offer in justification and the instruction to find for the plaintiff.</p>

290. This was an appeal from a judgment of a justice of tlie peace in a proceeding by Jacob Seavers against O. Long, David Allison, et al., to recover the value of certain wheat which had been delivered to the defendants under the following circumstances : Cyrus Allison was the owner of a farm which was occupied by bis son, David Allison, on a lease from year to year upon shares, terminating April 1st 1880.

<p>Appeal from the court of Common Pleas of McKean county: Of July Term 1883, No. 28.</p> <p>' This was the appeal of Henry "Weiskettlo, assignee of J. W. Humphrey, A. A. Aspimvall, and J. W. Humphrey & Co., for the benefit of creditors, from the decree discharging him from liis trust as such assignee, and appointing J. M. Fuller in his place. This decree was made upon the petition of Morris, Tasker & Co., et al., which set forth that the petitioners were creditors of J. W. Humphrey & Co., of J. W. Humphrey and of A. A. Aspinwall, that on the 19th or 20th day of January 1S83, their said debtors made an assignment to Henry Weiskettle in trust for the benefit of creditors, which was delivered on the 20th of the same month ; that said assignment was filed in the court of common pleas of McKean county on February 14th 1833 ; that the said Henry Weiskettle had taken possession of such trust estate, or part thereof, but had filed neither inventory nor bond in this state, and was irresponsible; that he was mismanaging and neglecting the trust estate ; that there was property in the state of Pennsylvania belonging to said insolvents, and that the assignee had sold and disposed of portions of the same. The petitioners prayed, inter alia, that said Henry Woiskettlc should be dismissed from the said trust, and that some suitable person should be appointed in his place.</p> <p>The answer of Weiskettle, assignee, set forth that said J. W. Humphrey & Co., J. W. Humphrey and A. A. Aspinwall, had executed a general deed of assignment in trust for creditors to him as assignee ; that the assignment was dated January 20th 1883, at Olean, in the state of New York, the time and place where it was executed, delivered and accepted ; that it was drawn, executed, delivered and accepted under the laws relating to voluntary assignments in the state of New York; that a large if not the greater part of the estate was situate in Allegany county, New York; that the assignment was duly recorded in the proper office in that county and state on January 22d 1883, in accordance'with the laws of that state ; that inventories and schedules were duly filed in the proper office in said county of Allegany, New York, and that an order of the county judge of said county of Allegany had been made, fixing the amount of the bond required, and that a bond had been executed and approved by the said judge, and duly filed in the proper office as provided by the laws of that state. That neither a bond or inventory had been filed in Pennsylvania for the reason that respondent had been advised and believed that the filing of bond and inventories in the county of Allegany, New York, which had been done in strict compliance with the laws of that state, was all that was required. That the assignment was not filed in the court of common pleas of McKean county, but had been left for record in the recorder’s office of said county ; that respondent was not mismanaging the estate ; that he was ready to file an inventory in the county of McKean, Pennsylvania, if it should be adjudged his duty, and to file a bond in such amount as should bo fixed by the court.</p> <p>After hearing on petition and answer the court 'below entered a decree discharging Henry Weiskettle as assignee, and appointing J. W.-Fuller in his stead.</p> <p>The assignee then took this appeal, assigning for error, inter alia, the action of the court in not dismissing the petition for want of jurisdiction, and in discharging the appellant from his trust as assignee.</p> <p>It appeared from the appellee’s paper book that at the time of the assignment, J. W. Humphrey was a citizen of McKean county, Pennsylvania, that A. A. Aspinwall was a citizen of Erie county, Pennsylvania, that the assignee resided in Bradford, McKean county, Pennsylvania; and that the principal office of J. W. Humphrey & Co. was also at Bradford. These facts did not appear upon the record, but were said in the appellee’s paper book to have been among the “ facts which were before the court below, and upon which the decision was based;” and they were not contradicted by the appellant. ■</p>

1883, No. 144. This was an indictment against R. A. Bucher under the Act of September 24th 1866 (P. L. 1866, p. 1363), charging him as a warehouseman, with transferring and removing beyond his immediate control, grain, for which he had given a receipt, without requiring its return. Plea, not guilty.

<p>A foot pavement'laid by an individual lot-owner in an unincorporated village along the line of his lot, which projects seven and a half feet into the public highway, and the placing by said lot-owner of six trees and two hitching-posts along the outer edge of said 'pavement, do not constitute a public nuisance per se, and such acts, in the absence-of evidence to show that they create an unreasonable obstruction to the carriage-way, will not support an indictment for committing and maintaining a public nuisance;</p>

<p>1. A., for a nominal rent, leased from B. an old furnace property with water-power thereon for a term of ten years, covenanting to repair, improve and rebuild the furnace so that it should be fit for manufacturing iron. In no case was A. to remove his improvements, but if he elected to surrender the lease at the end of three years, he was to have an equal interest with the lessor in the improvements :</p> <p>lie Id, That the lease amounted to a building contiact, and that the property was bound for all improvements made under the terms of that contract, if they came within the mechanic’s lien laws.</p> <p>2. The lessee substituted steam for water power, and having for this purpose constructed a boiler-house and an engine-house, it was held that the contract did not authorize such erection, so as to render the lessor’s property subject to mechanic’s lien therefor.</p> <p>3. The premises were not liable to a mechanic’s lien for alterations and repairs, even though made with the consent of the lessor, the Act of May 1st 1861 (P. L. 550), not being in force in Clinton county, where the premises were situated.</p> <p>4. The fixing of the “stack” so that in outward appearance it remained the same, and patching of the broken stone walls of the castiifghouse with boards, and patting on n new roof, amounted to repairs oniy, not entitling the person doing the work or furnishing the materials to a mechanic’s lien therefor.</p> <p>5. Even had the lease authorized the erection of the engine-house and boiler-house, so as to justify the filing of a lien for them under the Acts of June 16lh 1836 (P. L. 090) and April 21st 1856 (P. L. 496), the claim in this case would have been bad, as it was filed against the whole premises and not against the new erections specifically.</p>

<p>1. A sum deposited for a certain use, if not so used, is '• a debt due ” to the depositor, within the meaning of section 35 of the Act of June 16th 1836 (P. L. 767)'; and an attachment execution will lie therefor.</p> <p>3. At a sheriff’s sale, on an execution against an incorporated company, A. bought in the company's property with money given him for this purpose by the company. He subsequently transferred said property in good faith, with the approval of the board of directors, and the assent and acquiescence of the stockholders of the company, to a newly organized corporation into which the old one was merged. After this transfer of the property by A. an attachment execution was issued agaiust him as garnishee of the original compan}’ :</p> <p>Held, that he was not liable as garnishee of said company, either for the property purchased for them and so transferred to the new corporation, or for tlie value of it.</p> <p>3. The directors of a corporation have no right to sell or dispose of the company's movable properly, where this prevents the continuance of its business ; such a sale by them is void against non-assenting stockholders. But if the stockholders, having notice, are silent and make no objection whatever, by their acquiescence they will be taken as assenting.</p>

<p>Erbob to tbe Court of Common Pleas of Perry county: Of January Term 1883, No. 400.</p> <p>Assumpsit, by John K. Blattenberger against M. B. Holman, to recover back tbe sum of $350, paid by plaintiff to defendant for the assignment of a policy of life insurance on tbe life of Mary Owen.</p> <p>On tlie trial, before Babnett, P. J., tbe plaintiff testified that on June 14th 1881, he bought tbe policy in question from the defendant, to whom it had been assigned April 1st 1881, by S. E. Klinger, tbe beneficiary named therein ; that Holman said the claim was all right, and the company would assess on it. Mary Owen was then dead, and the plaintiff and Holman both knew it, but Holman had not filed a death proof. “ His reason for not filing it was that he was a member of the legislature, and could not attend to it at that time.” /</p> <p>On cross-examination, the plaintiff testified that he was in the speculative life insurance business as a business; that he had taken out several policies on the life of said Mary Owen, in different companies, about January or February 1881, by arrangement with S. E. Klinger, a distant relative of Mary Owen ; plaintiff said he knew she was 'a good risk — one who would drop off soon. She was then 84 years of age, and she died April 19th 1881. The policy in question was in the Lochiel Insurance Company, of Harrisburg, of which said Holman was an agent.</p> <p>Further extracts from the plaintiff’s testimony are given in the opinion of this court.</p> <p>H. C. Hoveter, who was secretary of the Lochiel Insurance Company, and a director and member of the executive committee at the time the application was made for the policy in question, testified that he was informed, before the delivery of the policy, by the physician who examined Mary Owen, that :he had made the examination simply as a personal favor for some one, and that the company should not issue the policy. .The president of the company was informed of this, but no investigation was then made of the facts ; the policy was delivered, and the secretary, after Mary Owen’s death, told Mr. Holman that he would do all in his power to forward his interests in this claim by bringing the matter before the board, and having an assessment made for the claim. Two assessments were in fact levied, one on May 15th and one on June 1st 1881; but while they were in process of collection, and soon after the date of the assignment to plaintiff, the company “ broke up.”</p> <p>Plaintiff, in several offers, offered to prove that defendant at the time of the assignment knew that the policy in question was fraudulent and void, having been issued for speculative 'purposes on a forged application ; and that the company had refused to pay the claim on demand made by plaintiff.</p> <p>Objected to; objections sustained ; exception.</p> <p>At the close of the plaintiff’s case the court entered a compulsory non-suit, which the court subsequently refused to take off, whereupon the plaintiff took this writ of error’, assigning for error the rejection of his offers, and the x'efusal of the court to táké off the non-suit.</p>

<p>1. A general or demonstrative legacy is not adeemed by the sale or change of the fund; but generally a specific legacy is revoked by s sale or change of form of the thing bequeathed.</p> <p>2. When a legacy is so connected with a fund out of which it is payable, that the legacy and the fund are the same, it is specific.</p> <p>S. A testator in his will provided as follows: “I give and bequeath to my son, A. . . . the sum of $3,000, out of the sum of near $1,000, now on deposit in the Farmers’ Bank .... providing the said amount and interest is collected from the assets or stockholders of said bank . . . .” and to his sou B. the sum of $1,500, with the same proviso. “ The remaining part of the money collected from said . . . bank . . . out of the sum deposited in said bank ... to be divided equally between my sons A. and B. or their heirs.” The testator afterwards collected $1,342.7(5 from said bank, accepting it in full of all claims. The executor’s account showed a balance of $3,264 35 for distribution.</p> <p>Held, That the legacies to A. and B. were specific, and were adeemed by the testator’s collection during his lifetime of the fund with which they were payable; and that the entire fund in the executor’s hands should be divided among the testator's next of kin according to the intestate laws.</p>

<p>Appeal from the Orphans’ Court of Cumberland county : Of July Term 1883, No. 93.</p> <p>Appeal of E. A. Grove, administrator of the estate of II. II. Grove, deceased, from the decree of the Orphans’ Court of Cumberland county, making distribution of the proceeds of sale of real estate of P. H. Long, deceased, sold by order of said court for the payment of debts.</p> <p>From the report of the Auditor (John P. Miller, Esq.) appointed to report distribution of the fund in court, produced by the sale of the real estate of P. II. Long, deceased, for the payment of his debts, the following facts appeared : On April 4th 1859, H. II. Grove (the appellant’s intestate), and Susan Catharine Ulrich, his sister, being then the owners of a tract of land situate in Cumberland county, conveyed the same to ‘David H. Voglesong. subject to the dower right, amounting to $3,350.62, of their mother Catharine Ulrich, the interest thereof to be paid to her during her life, and the principal at her death to said II. II. Grove and Susan Catharine Ulrich. In addition to the reservation of this sum in the deed to him, Voglesong executed on April 2oth 1859, a bond to II. Ii. Grove and Susan Catharine Ulrich in the penal sum of $6,701.24, conditioned as follows;</p> <p>“ The condition of this obligation is such, that if the above bounden David II. Voglesong, his heirs, executors, administrators or any of them, shall and do well and truly pay .or cause to be paid unto the above named Henry H. Grove and Susan Catharine Ulrich (in equal parts), their certain attorneys, executors, administrators or assigns, the just sum of $3,350.62 at the death of Mrs. Catharine Grove, widow of the said Henry Grove, deceased (the same being part of the purchase money for certain real estate purchased from the said Henry H. Grove and Susan Catharine Ulrich as heirs at law of said Henry Grove, deceased), being the same as charged-in the deed, witl'iout any fraud or further delay, then the above obligation to be void, or else to be and remain in full force and virtue.”</p> <p>Upon May 13th 1859, II. II. Grove executed the following assignment to Pev. John Ulrich :</p> <p>“ Whereas, Pev. John Ulrich, of Carlisle, Pa., holds certain promissory notes against me, upon which, after discounting credits, there is an indebtedness of $1,083.40; and whereas it is the .object of this instrument to secure the same' by an assignment of my interest in a bond from David H. Yoglesong to myself and Susannah Catharine Ulrich, my sister, to the extent of any indebtedness that may exist at the time of the decease of my mother, Mrs. Catharine Grove, at which time said bond is payable. Row, in consideration of the premises, I hereby assign such an amount in said bond as will liquidate any indebtedness that may exist when the said bond is payable, and direct that the obligor in the said’bond shall pay over, and hereby authorize the said Ulrich, his executors, administrators and assignees, to receive from said Yoglesong, or whosoever else may be required or obliged to pay the said bond, such sum as may be agreed or ascertained to be due on account of the indebtedness aforesaid.”</p> <p>■ A portion of the premises were sold by Voglesong to P. H. Long, subject to the payment of $1,800, the apportioned amount of the said dower fund. Long died June 5th 1877, and his real estate was sold by order of court for the payment of his debts September 17th 1879. Mrs. Catharine Grove died. October 21th 1877.</p> <p>Before the auditor, Mrs. Susan Catharine Ulrich claimed $120.69 in her own behalf from the fund, having already re-* received $1,558.62 on account, and her claim was admitted to that extent. She also, as executrix of John Ulrich, deceased, claimed from the balance of the fund the sum of $1,083.57, with interest from .1859,. by virtue of the above assignment— the amount of this indebtedness of H. H. Grove to John Ulrich, thereby secured, being much greater than said balance.</p> <p>Upon this question the auditor reported as follows:</p> <p>“It is claimed that the assignment, was only a collateral security for any debt of H. H. Grove which might exist at the death of Catharine Grove, and that there is no evidence of any debt then existing, that the notes are barred by the statute of limitation, and that Grove’s administrator is the proper person to receive the fund for distribution, excepting the $120.69 tendered to Mrs. Ulrich. If the assignment was only as collateral security, I do not think the statute of limitations could be set up, but that the executrix of Rev. John Ulrich would have the right to receive whatever had not been paid prior to the decease of Catharine Grove. The assignment is in effect also an agreement to pay at the death of Mrs. Grove whatever should be due to Ulrich and the statute would not commence to run until the happening of that event. The case of Acheson v. Shenk, 2 Legal Gazette 861, has been cited in support of this position: ‘Where a judgment bond is held as collateral security for advances the statute cannot be pleaded against such debt.’</p> <p>“ On the back of the notes is this entry, ‘ Settled by a bond, 13th May 1859, and recorded.’ But the assignment sets out that ‘ its object is to secure the indebtedness of $1,083.57 by an assignment of my interest in a bond.’ It authorizes the said Ulrich, his executrix, administrators and assigns to receive from Yoglesong or whoever else may be required or obliged to pay ‘ said bond, such sums as may be agreed or ascertained to be due on account of the indebtedness aforesaid.’ '</p> <p>“ There can be no doubt that the intention of the parties was not that which took the assignment merely as a collateral and that the dower fund would have to go to Grove’s administrator and the claim made against his estate, or his representatives, but it provides that whatever is owing shall be paid to Ulrich, his executors, &e. The amount due at the assignment was fixed at $1,083.57. There is no pretence of any payment, and it seems that the debt due is established.</p> <p>“ It is urged that it was not the bond that was assigned, but there can be no doubt that it was the intention of Grove to assign his interest in the dower fund, payable at the death of his mother, and this included the reservation in the deed — the assignment after the requisite proof was recorded, as shown by the testimony.</p> <p>“Again, the bond of Yoglesong was in possession of Mrs. Ulrich, was produced by her, has on it the entry that ‘ so much of II. II. Grove’s interest in the bond is assigned to Ilev. John Ulrich as to secure the payment of $1,083.57, at present due him by said Grove, &«.’ As in the assignment, there is nothing said about collateral security, but in it is a transfer of his interest in the bond to a certain extent.</p> <p>“ It appears also that H. II. Grove was one of the appraisers of the estate of John Ulrich, and that he appraised this transfer of the dower as part of the assets of Ulrich’s estate. This inventory cannot be found on file, search having been made by the register and by the auditor ; the records show the date of its filing, but there is no record showing the items it contained. There is testimony as to its contents which clearly establishes that it contained the item referred to and that IÍ. II. Grove was one of the appraisers.</p> <p>All these matters show that the transfer was intended to be an absolute transfer of enough of the interest of H. H. Grove in the dower fund to pay the indebtedness to Ulrich at the time of Mrs. Grove’s decease, and that Ulrich’s executor has a right to receive it from whomsoever might be obliged to pay it, and that the amount of debt on the 13th day of May 1859, was $1,083.57, and that there is no evidence that any portion of this sum has been paid. It amounted on April 1st 1880, to $2,440.79 — much more than Grove’s interest in the dower fund. We have, therefore, concluded to sustain the exception and distribute the fund in accordance with the opinions above expressed.”</p> <p>Exceptions filed to this report by E. A. Grove, administrator of H. H. Grove, deceased, were overruled by the court and the auditor’s report confirmed, in an opinion by Rowe, P. J., whereupon E. A. Grove, administrator, took this appeal, assigning for error the dismissal of said exceptions.</p>

<p>In a foreign attachment proceeding by A. against B., B. and one O. gave to A. a bond conditioned to be void on payment by B. to A. of the debt and costs that might be recovered by A. in said proceeding, wnich bond, while purporting in form and substance to be a recognizance to procure the dissolution of the attachment, was simply acknowledged by O. before a justice of tlie peace and then filed in the office of the prothonotary :</p> <p>Held, That while void as a statutory recognizance, it was valid as a bond at common law, and B. having failed to pay A. the amount of debt and costs, for which A. recovered judgment in the foreign attachment, A. could recover on said bond against O.</p>

<p>1. A testator may, as between legatees and devisees, constitute his real estate the primary fund for the payment of his debts. But this must be by express words or manifest intention apparent in bis will. The blending of his real and personal estate in the residuary clause, whereby the debts are charged upon the realty, may be a circumstance indicative of an intention to exempt the personalty as the primary fund for payment of debts, but of itself it is insufBcient to effect that result.</p> <p>2. A testator, after directing that his debts should be paid out of his estate, gave to his w;fe the interest of one-third of all his personal estate absolutely, and the interest of one-third of his real estate for life. He then gave all the rest and residue of his estate, real, personal and mixed, to his children, share and share alike. The personalty proved insufficient for the payment of his debts, and his real estate was sold by order of the Orphans’ Court, for the payment of debts. Upon distribution of the balance of the proceeds of real estate remaining after payment of all the testator’s debts, the court below held that the testator, having in the residuary clause in his will blended his realty and personalty, each fund was charged ratably with the payment of debts, aid that the widow was therefore entitled to receive out of the said fund for distribution one-third part of the balance of the personal estate after the payment of a proportionate share of tiie debts, and the interest of one-third of the balance of the proceeds of the real estate after payment of a proportionate share of the debts:</p> <p>Held, to be error, as there was no intention manifest in the will to exempt the personalty as the primary fund for the payment of debts, and that the widow was therefore only entitled to the interest of one-third of the net balance of the said fund for distribution.</p> <p>3. McGlaughlin v. McGlaughlin, 12 Harris 20, distinguished.</p>

53. Assumpsit, by the First National Bank of Lancaster, against Michael Zahm, on a promissory note, which read as follows : “§1,350. Lancaster, Pa., May 9th 1877. Sixty days after date we promise to pay to the order of Samuel Groff, at the First National Bank of Lancaster, thirteen hundred and fifty dollars, without defalcation. Value received. “ Samuel Groff. Duller & Groff.” [Indorsed:] “ Samuel Groff, H. D. Groef.

<p>1. A. gave B. a promissory note, which was indorsed by C. and D. Subsequent to the indorsement and on the day of its maturity, E. wrote and signed on the back of said note: “I hereby guarantee payment of the within note without protest.” Held, that the contract of E. was that of a technical guarantor.</p> <p>2. Said note was discounted by F., a banking company, for the benefit of D., who, before E. had guaranteed the note as above, had given lo F. the following paper: “I hereby guarantee the payment of all notes<1 rawn by A. and indorsed by me, now held by F., whether matured or to mature.” In an action by F. against B., testimony was offered showing the above facts, and that at the time of the delivery of said paper and after-wards, D. had money on deposit with P. sufficient to pay tile note, and that F. had made no effort to collect the amount of said note from I).:</p> <p>Held, That the exclusion of said offer was error, that it should have been admitted to show that all the parties to the note and liable to pay the same, had not been pursued to insolvency before resorting to E., the guarantor.</p> <p>3. Zahm v. Bank, ante, p. 576, followed.</p>

Certioraei to, and appeal from the Court of Common-Pleas of Lancaster county: Of July Term 1882, No. 83. Bill in equity, filed June 2d 1880, by Lorenz Noble, et al., claiming to be trustees of the “ Seventh Day Baptists of Epkrata ” against A. E. Madlem, et al., who also claimed to be such trustees, praying for an injunction to restrain the defendants from interfering with the plaintiffs, in their office as trustees.

153. This was an appeal by E. A. Muhlenberg from a decree of the said court dismissing liis exceptions filed to the report of the auditor, appointed to… Held: to be a vested legacy, and upon the death of either of the children his share would go to his personal representative..... To the same effect the following cases may be cited, among others: Manderson v. Lukens, 11 II. 31; McGill’s Appeal, 11 P. F. S. 47; McClure’s Appeal, 22 P. F. S. 414; Sebastian’s Est., 4 Phila.

<p>Appeal from the court of Common Pleas of York county : Of January Term 1883, No. 313.</p> <p>Appeal of Henry Weller from a decision of said court, refusing to open a judgment entered upon a warrant of attorney, and to let the defendant into a defence.</p> <p>The following were the material facts : On April 2d 1879, judgment was entered in favor of John Keener against John Keener, “David!’ Miller and Henry Weller, on the following instrument:— j</p> <p>“ $500. York Pa. April they first 1874</p> <p>W e or Eathers of ns Promise to pay to the order of John Keener the sum off five</p> <p>Hundred</p> <p>Dollars</p> <p>Without defalcation, for value received</p> <p>[Then follows warrant to confess Judgment.]</p> <p>Witness hand and seal this day of A. D. 187 Witness: John Keener [Seal.]</p> <p>Daniel Miller Henry Weller.”</p> <p>On December 19th 1881, the clerical error in the entry of the judgment was corrected, by amendment, and the name “ David” changed to “ Daniel” Miller.</p> <p>Upon motion of John Keener, July 11th 1882, the court ordered his name stricken from the judgment as defendant, leaving it in the name of John Keener v. Daniel Miller and Henry Weller. This action of the court was based on the Act of May 4th 1852 (P. L. 574) and the supplement thereto, of April- 12th 1858 (P. L. 243), providing for the striking out of parties, plaintiff or defendant, in a suit — by amendment — when necessary in order to try a cause on its merits.</p> <p>Execution was issued on this record, July loth 1882, and, Miller being then insolvent, the real estate of Henry Weller was levied upon thereunder. Whereupon Weller filed a petition, which, after setting forth the above facts, prayed that the judgment might be opened and that lie might present his defence, which lie stated to be as follows: “ That Henry Weller, the petitioner, was induced to sign his name to the paper, on which the said judgment was entered, by reason of the misrepresentation of J ohn Keener in allowing his name to appear on the said paper as principal obligor; and further by the representations of Daniel Miller who pointed out to the petitioner the names of John Keener and the said Daniel Miller signed above the place where the petitioner was requested to sign, at the same time assuring the petitioner that he could not be harmed, because the said John Keener and the said Daniel Miller were before him. That he never contracted, or intended to contract, as would appear from the judgment record, after the name of John Keener had been stricken from the note. That the loan from John Keener to Daniel Miller was usurious, which fact was not disclosed to the petitioner, nor was he informed until seven years afterwards that John Keener had loaned Daniel Miller any money on the said note. That for several years after the note became due the said Daniel Miller ivas solvent and able to pay and did offer to pay the said debt to John Keener ; and the said John Keener neglected to collect the same until after Miller had become insolvent.”</p> <p>It was further alleged that the plaintiff, a German, wás exceedingly illiterate, and was only able to read or write English very imperfectly.</p> <p>A rule to open the judgment, based on this petition, was discharged by the court, and the prayer of the petitioner denied, Wiokes, J., delivering the following opinion : “ If the defendant, Henry Weller, occupied the position of a guarantor, instead of a surety, in the note upon which this judgment was entered, there would be much force in the contention that the delay of the plaintiff, in proceeding to collect it until after the insolvency of Daniel Miller, the principal, is fatal to his claim against the surety. It is clear law that the contract of guaranty is conditional on the creditor’s diligence to collect the debt, but that mere delay will not release a surety; to be released, he must demand proceedings with notice that he will not be bound if they are not instituted : 2 P. F. S. 440, 525; 3 Penn. R. 437; 9 P. F. S. 356. There is no evidence that such a demand was ever made upon the plaintiff, and mere forbearance or delay will not operate to discharge the surety from his liability. Nor would the fact that Miller paid the plaintiff a bonus for the use of the money, or at times more than the legal rate of interest, discharge the surety, unless there was evidence of some change in the contract. Of this, however, there is no evidence; indeed it is denied by the plaintiff that lie ever charged usurious interest, and that whatever was paid above six per cent., was when Miller voluntarily paid him something for waiting when the interest became due. Rut there is nothing to show that the original contract was changed, and without this the surety would not be released: 9 Ca. 106. Nor does the evidence submitted in support of the application show such “ mistake, misrepresentation, and laches,” either on the part of the plaintiff, or principal, as entitles the defendant, Weller, to be released from his liability.</p> <p>“ It is not- pretended that any fraud was practised upon him to induce him to sign this note. But it is said he was misled by the appearance of Keener’s name at the foot of the note, and supposed himself protected by Keener’s liability. He was asked to sign the note by Miller, who told him he wanted to borrow some money. Whether he told him from Keener or not is perhaps doubtful. Weller says not. Miller says ‘ Yes’ and ‘No.’ But Weller signed a joint and several note as surety for Miller, and the note showed on its face that John Keener was the payee. His name appeared, it is true, by mistake, as maker also; but the error was apparent on the face of the note, and the case is absolutely destitute of evidence to show collusion between Keener and Miller to mislead him. Keener was not present when Miller signed the note and never seems to have had any communication with him on the subject; he ought not therefore to be affected by what took place between Miller and Weller at the time: Graves v. Tucker, 18 S. & M. 9. But apart from this, if, at the time of signing, Weller chose to rely upon what Miller affirmed as to the note he cannot now avail himself of the mistake, as it was a matter entirely open to his own inquiry : 10 Ca. 365.</p> <p>“ It is said he is an illiterate man and only imperfectly understood English. The second resolution in Thoroughgood’s case, was that an illiterate man need not execute a deed before it is read to him in a language he understands; but if he do, without desiring it to be read, the deed is binding : 17 P. F. S. 389. Rule discharged.”</p> <p>Thereupon Weller took this appeal, assigning for error the action of the court in ordering Keener’s name stricken from the record as defendant; and in refusing Weller’s petition to open the judgment.</p>

95. Assumpsit, brought August 18th 1877, by Joseph Van Leer and Caroline, his wife, formerly Caroline Carman, in her right, against Sidwell T. Wilson and Needham M. Wilson, executors of Needham Wilson, deceased. The narr. contained a count upon the instrument printed in the above syllabus, and a count in quantum meruit for work and labor done, &c. Plea, non assumpsit infra sex annos.

272. Certiorari to said court, and an appeal by Josephine R. Thompson, legatee, and M. A. Ilerr and John Ralston, executors of William R. Ralston, deceased, from a decree confirming the report of an auditor appointed to make distribution of the balance in the hands of said executors. Win. R. Ralston, the testator, who died in May 1877, bequeathed to his daughter, Josephine R. Thompson, a legacy of $500.

Ebbob to the Court of Common Pleas of lancaster county: Of January Term 1883, No. 383. Ejectment, by the president and managers of the Old Columbia Public Ground Co. against the First Methodist Episcopal Church, to recover a certain tract of land in the borough of Columbia. Plea, not guilty.

174. Assumpsit, by Amos Slaymaker, executor of J ames L. Reynolds, deceased, who-was administrator of William Mathiot, deceased, against the Farmers’ National Bank of Lancaster, to recover the sum of $770.76, alleged to be a balance of deposits in said bank .to the credit of “James L. Reynolds, administrator of William Mathiot, deceased.” Pleas, non-assumpsit, payment with leave, and set-off.

<p>1. The provision in the constitution of 1874, that every railroad company shall have the right “ to intersect, connect with or cross any other railroad, ” does not change the policy of the State as embodied in the Act of June 19th 1871, to prevent railroad crossings at grade where that is reasonably practicable.</p> <p>3. Where the jurisdiction conferred by said Act of 1871 on courts of equity is invoked, it is for the court to ascertain, as a conclusion from the special facts and circumstances of each case, whether it is reasonably practicable to avoid a crossing at grade, and if so, to prevent such grade crossing, and by its decree define the mode of crossing to be adopted.</p> <p>3. What is reasonable, is that which ordinary persons acquainted with the business would have anticipated as hlcely to be required — that which •has usually been done by discreet and intelligent persons under similar circumstances.</p> <p>4. Some of the factors which enter into the solution of the question of the reasonable practicability of an overhead crossing are: the location and surroundings of the proposed crossing, the character of the railroads and the use made and intended to be made of them, the increased cost and expense of construction and operation, the public safety and convenience, and the interests and convenience of the road intended to be crossed.</p> <p>' 5. Under the evidence in this case the court below decided that an overhead crossing was not. reasonably practicable, and entered a decree defining the mode in which a crossing at grade should be made and operated: Held, that the evidence warranted the findings of fact, the conclusion, and the decree, which was therefore affirmed.</p>

166. Ejectment, by Benjamin S. Muhlenberg et ah, surviving executors of the will of Dr. F. A. Muhlenberg, deceased, against Catharine Druckenmiller and Jacob Druckenmiller, her husband, to recover possession of a piece of ground in the city of Lancaster.

' Error to the Court of Common Pleas of Juniata county: Of July Term 1882, No. 192. Ejectment, by Stewart Elliott, against J. Shepperd McCahan and William B. McCahan, for a tract of land, situate in said county, containing one hundred acres. The defendants appeared and filed an abstract of title.