Volume 104 — Pennsylvania State Reports

Eeror to the Court of Common Pleas of Huntingdon county: Of January Term 1883, No. 208. This was, in the court, below, an appeal from the judgment of a justice of the peace. The following transcript was filed April 10th 1882: Joseph JIeifnek v. Daniel Womelsdokf.

Certiorabi to, and appeal from the decree of, the Court of Common Pleas of Warren county: Of January Term 1883, No. 2. Held: however, that in the absence of fraud, which had not been proved, the defendant in the judgment was without a remedy, and therefore discharged the rule. Babcock thereupon took this appeal, assigning for error the discharge of his rule.

39. Scire facias sur mortgage, by Joseph P. Bonesteel, plaintiff, against Charles Sullivan, defendant, upon a mortgage given by defendant to plaintiff, dated September 19th 1867, duly recorded, to secure the payment of $8,000, within five years from date, with interest thereon. Plea, want of consideration, with leave, &c. On the trial, the plaintiff put in evidence the mortgage in suit, and rested.

<p>Appeal from the Orphans’ Court of Huntingdon county: Of July Term 1883, No. 69.</p> <p>This was an appeal by Mrs. Rebecca Walls, née Harmon, from a decree of said court refusing to order the filing of a final account by Benedict Stevens, who had been her guardian during her minority.</p> <p>The record showed the following: On April 11th 1881, Rebecca Walls, formerly Rebecca Harmon, filed her petition in the Orphans’ Court, setting forth that her father, Frederick Harmon, died intestate July 1st 1852, leaving surviving him a widow and eight children, of whom the petitioner, the youngest, was a minor (born September 3d 1851); that on November 8th 1S52, Benedict Stevens was appointed by said court guardian of her person and estate; that the petitioner is now of age, and that her said guardian lias never filed an account of his trust since'she reached her majority. The petitioner therefore prayed for a citation against said Benedict Stevens, commanding him to file an account or show cause, &c.</p> <p>A citation was awarded as prayed for, to which said Stevens filed an answer setting forth that he filed a guardianship account on January 15th 1863, which was confirmed April 20th 1863, no exceptions having been filed thereto ; that he had expended all the moneys of his late ward in such way as was lawful and for her best interest, and that he had received no money or property belonging to his ward since the filing and confirmation of said account; that no complaint was made by the petitioner during the twenty years since the confirmation of said account, nor since her arrival of age more than eight years ago ; that the respondent is over 80 years of age, and in feeble health.</p> <p>After hearing, on petition and answer, the court filed the following decree:</p> <p>“25t'h October 1881, the court .refuse to order filing of account by guardian, it appearing that he has settled and filed account, but t.he ward has leave to present petition for leave to file exceptions to account already filed and confirmed.”</p> <p>On November 14th 1881, Mrs. Walls filed a second petition setting forth that at the time of filing said account by her guardian, on January 15th 1863, she was but twelve years of age, and knew nothing of the matter; that she had never received from her guardian any part of her father’s estate, and that, being illiterate, she was ignorant of her rights until she was informed, a short time previously to the filing of her first petition, that she was entitled to have the matter investigated. In this petition she charged fraud in the said account filed January 15th 1863, and prayed leave to file certain specified exceptions thereto.</p> <p>No answer was filed to this petition, but the answer to the former petition appears to have been treated as the answer to this.</p> <p>A rule to show cause was granted, on the hearing of which the court, Barnett, P. J., made the following decree:</p> <p>“ And now, 29th September 1882, this cause being called and heard, their answer denying fraud, in the absence of any testimony to support the rule, and owing to the laches of the applicant, the rule is discharged.”</p> <p>The petitioner thereupon took 'this appeal, assigning for error both the above decrees of the court.</p>

<p>1. A defendant in an execution whose land lias been sold at sheriffs sale is entitled to retain possession between the date of the sale and the acknowledgment of the sheriff’s deed to the purchaser, and to enjoy, during that period, the rents, issues, profits, ripening crops (if he severs them), use of open mines, quarries and oil wells, including the oil from “flowing ” wells.</p> <p>2. But if said defendant in the execution, before the acknowledgment of the sheriff’s deed, abandons or surrenders possession of the land to the purchaser at the sheriff’s sale, the latter immediately becomes lawfully entitted to all the above-mentioned incidents of title and possession ; aud the same, whether remaining part of the freehold or severed and converted into personalty, cannot be levied upon and sold in execution by a judgment creditor of the former owner.</p> <p>3. Under a judgment against A., his title to certain land upon which were two “ flowing ” oil wells was taken in execution and sold at sheriff’s sale to B. on July 26th 1882. The sheriff’s deed to B. was not acknowledged until November 27th 1882. Soon after the sheriff’s sale A. abandoned possession of the land, and B. entered into possession, collected the oil as it flowed from said wells, and stored it in tanks on the premises. On October 10th 1882, the said oil then in tank was levied on under an execution upon a judgment held by C. against A. and sold at sheriff’s sale as A.’s property. In replevin by the purchaser of said oil against B. :</p> <p>Held, that the plaintiff was not entitled to recover.</p> <p>A The respective interests of a purchaser of land at sheriff’s sale, and of the defendant in the execution, during the interim between the date of the sale and the acknowledgment of the sheriff’s deed, commented upon and explained.</p>

<p>1. Where a railroad company was accustomed to receive minors into its service to work in its shops, for wages, under certain general rules and'regulations, and a minor on being so received signed in duplicate an agreement to be subject to said rules for four years, the company holding one copy and the minor the other, and said employ®, after arriving of age, ratified said agreement by claiming under it: Held, that said agreement was a valid contract, binding upon both parties, though signed by the employ® alone.</p> <p>2. Such contract provided that in case of absence during the said term (except occasioned by sickness) the employ® should serve such additional time as would make up the time lost; and in case the company should suspend, wholly or in part, the work in the shops, the wages should be correspondingly suspended; and that ten per cent, of the wages earned should be retained as security, that the employ® should complete his term of service. In an action by said employ®, after he arrived of age, wherein he claimed to recover, un'der a narr. ill the common counts, the percentage of wages retained by the company:</p> <p>Held, that upon performance of his contract he was entitled to recover; that lie was bound, however, to make up for time lost (not from sickness) when the company had full or partial work for him to do, but not for time when he was idle because the company suspended work, and wages, wholly or in part.</p>

<p>Error to the Court of Common Pleas of Dauphin county : Of May Term 1883, No. 19.</p> <p>This was a proceeding before a justice of the peace by Seymour Raymond and Joseph.Campbell. trading as Raymond and Campbell, landlords, against George Wenger, tenant, to recover the possession of a certain leasehold under the Act of December 14th 1863. The justice gave judgment of ouster for the plaintiffs, whereupon Wenger appealed to the Court of Common Pleas of Dauphin county. The transcript of the justice was treated as a declaration, to which Wenger pleaded not guilty. The trial then proceeded as in the nature of a proceeding in ejectment as provided by the Act of 1863.</p> <p>The facts of the case and the material portion of the charge of the court are fully recited in the opinion of the Supreme Court.</p> <p>Verdict for the plaintiffs and judgment thereon. The defendant thereupon took this writ of error, assigning for error the instruction of the court that the notice to quit (hereinafter recited) was sufficient, and the portion of the charge quoted infra.</p>

<p>Error to the Court of Common Pleas of Hcmjphi/n counly: Of May Term 1883, No. 23.</p> <p>This was, in the court below, an appeal by the International Navigation Company, from the settlement of an account by the auditor-general and state treasurer against said company, charging it with the first installment of a bonus upon an increase of its capital stock, claimed to be due under the provisions of section 15 of the Act of May 1st 1868, which reads as follows:</p> <p>“Section 15. That hereafter every company incorporated by or under any general or special law of this commonwealth, except railroad, canal, turnpike, bridge, or cemetery companies, and companies incorporated for literary, charitable, or religious purposes, shall pay to the state treasurei’, for the use of the commonwealth, a bonus of one-quarter of one per centum upon the amount of capital stock which said company is authorized to have, in two equal installments, and a like bonus upon any subsequent increase thereof. The first installment shall be due and payable upon the incorporation of said company, or upon the increase of the capital thereof, and the second installment one year thereafter.”</p> <p>The company filed the following specifications of objection :</p> <p>1. The International Navigation Company was created by, exists and does business under, authority contained in an act entitled “An act to incorporate the International Navigation Company,” approved May 4th 1871 (P. L. 565), which said act entitles said company to all the rights, powers and privileges conferred by an act entitled “An act to incorporate the Pennsylvania Company,” approved April 7th 1870 (P. L. 1025). The said company is'a railroad and transportation company, and as such is within the exception contained in the fifteenth section of the act of May 1st 1868, and is not required to pay the bonus provided for by said section.</p> <p>2. The fourth section of an act entitled “ An Act to incorporate the Pennsylvania Company,” which is, by the act of May 4th 1871, made part of the charter of the International Navigation Oompanj?, provides that said company “shall be taxable only on the proportion of dividends on its capital stock, and upon net earnings or income only in proportion to the amount actually carried by it within the state of Pennsylvania.”</p> <p>By agreement filed, the case was tried without a jury, under the provisions of the Act of April 22d 187-L before McPhekson, J., whose findings of fact, and conclusions of law were as follows:</p> <p>1. The International Navigation Company was incorporated by the Act of May 4th 1871 (P. L. 565), which gave to it, inter alia, all the powers and privileges of the Act incorporating the Pennsylvania Company, passed April 7th 1870 (P. L. 1025). Both Acts are made part of this finding.</p> <p>2. On February 27th 1882, the capital stock of the company was increased one million of dollars.</p> <p>3. About 1872 the defendant built a short railroad connecting an elevator at Girard Point with the Pennsylvania railroad near Philadelphia, and operated the said road until April 1st 1881, when it sold the same to another corporation of this state, in which the defendant owns nearly one-half of the stock.</p> <p>4. At the time when its capital was increased the defendant did not own or operate a railroad, and its principal business was the management and operation of a line of steamships between Philadelphia and New York and Antwerp.</p> <p>Upon these facts two questions arise:</p> <p>1. Is the defendant a “railroad” company, and therefore not liable to this claim for bonus?</p> <p>The fifteenth section of the Act of May 1st 1868, upon which the ease of the Commonwealth rests, is -as follows:</p> <p>[Quoted, ut supra.]</p> <p>Usually corporations are created in order to carry on a single, or at least a principal, business or enterprise, and in such case they can readily be classified; but this company has survived from the days of special legislation with an “ omnibus” charter, under which it can do many things, from operating a railroad or constructing a steamship to lending money to manufacturers or guaranteeing the note of a firm. No doubt it may build a railroad, but it may build also “ any work or works, public or private, which may tend or be designed to improve, increase, facilitate or develop trade, travel, or the transportation and conveyance of freight, live stock, passengers, and any other traffic by land or water.” . . It may build steamships, employ the same in foreign and domestic transportation, may build any “improvements, structures, roads or fixtures necessary or convenient for the purposes of the said company under the powers herein grantedmay erect lines of telegraph, exercise the right of eminent domain “ for the purpose of erecting, constructing, maintaining or managing any public works such as ” are mentioned above: may advance money or credit to companies, contractors, or manufacturers, may receive on deposit any estate, even though it be real estate, may indorse and guarantee obligations of corporations, firms and individuals, and may assume and carry out any contracts, leases and sub-leases made by any company to or with any company or individual. In view of such an array of powers, — and even this is incomplete,— it is evident that the character of the corporation, in such an inquiry as this will depend upon the business it actually does, and that its proper description may vary, from time to time, as its business varies.</p> <p>It is not necessary now to decide how the simultaneous carrying on of different enterprises would affect the question ; in the case before us the defendant first exercised its powers as a railroad company only, hut when the increase of capital stock was made it had ceased to use this franchise and was acting as a steamship company alone. We see no difficulty in such a state of facts; the defendant by its own act has classified itself, and surely it cannot complain if the Commonwealth takes it at its word. The substance of its business is the essential matter. If the company was really operating a railroad and doing nothing else, is it doubtful that it could not be taxed as a steamship company, merely because it had powers of that sort which it did not exercise ? And when, as a navigation company, it is really operating a steamship line and doing nothing else, can it be pretended that it is still a railroad company, because it once carried on that business and may perhaps do so again ? It might with as much reason be said that a merchant, who has given up his store and taken to fanning, is still liable to pay for a mercantile license. In Com. v. Penn. Coal Co., 2 Pears. 404, Judge Pearson held the defendant to bo a coal company, although it liad authority, and exercised it, to build railroads to carry its coal to market, on the ground that its principal business was to mine, and that transporting was an incident. There the two operations were carried on together; here the defendant had ceased to act as a railroad company ■when the Commonwealth’s claim arose, and there is no question of principal and incident. On the facts, as found, we hold the defendant was not a railroad company in February 1882.</p> <p>It is argued, however, that the defendant, being then no doubt a transportation company, is within the spirit of the exception,' and therefore should not pay this bonus; but the difficulty is, that there is not a word, or phrase, or sentence in the exception, which, by the most liberal enlargement or construction could be held to cover a steamship company, and the careful enumeration of special classes without general words •makes the exclusion of such a corporation too plain for discussion.</p> <p>2. The second objection is based on section four of the Act of 1870, providing that the company “ shall be taxable only on the proportion of dividends on its capital stock, and on net earnings or income only in proportion to the amount actually carried by it within the state of Pennsylvania.” . . . This, it is said, exempts the capital stock from all other burdens, and relieves it from liability here. It is not necessary to decide whether the bonus required to be paid by the Act of 1868 is a tax or not, either strictly speaking or in its ordinary and popular sense. If it is a tax in any sense, then the language used does not surrender the right of the Commonwealth to impose it. It is undoubted law that such a surrender can only bo made by clear words and upon sufficient consideration: Jones & Nimick Co. v. Commonwealth, 19 P. F. S. 137; and it is by no means clear that the words of this provision should bear the meaning contended for. They apparently refer only to the taxes on capital stock and net earnings, and nowhere, either expressly or by necessary implication, indicate an intention to give up the right of the state to other taxes. If the bonus claimed is not a tax, then the provision does not touch it in any way. In either event, the liability of the defendant is not affected.</p> <p>The amount due is as follows :</p> <p>First installment of bonus ..... $1,250 00</p> <p>Attorney-general’s commission ... 62 50</p> <p>Total ......$1,312 50</p> <p>For which amount we direct judgment to be entered in favor of the Commonwealth, if exceptions are not filed as provided by law.</p> <p>Exceptions were filed to the above decision, on the ground that the court found that the defendant was not a railroad company, was not within the exception in the Act of 1878, and was not protected by the Act of 1870, providing that the company should be “ taxable only on the proportion of dividends on its capital stock.”</p> <p>Said exceptions were overruled, and judgment was entered for the Commonwealth, whereupon the defendant took this writ of error; assigning for error the dismissal of the exceptions and the entry of judgment for the Commonwealth.</p>

5. Ejectment, by Henry Hartman against William B. Moul to recover a strip of land in East Berlin township, Adams county, in the possession of the defendant. The facts, as they appeared on the trial, before McClean, P. J., were as follows: Hartman and Moul were owners of contiguous lots in the borough of East Berlin, bounded on the north by King street.

30. Appeal by Edward G. Fahnestock, from a decree of said court, reversing the findings and award of an Auditor, appointed to pass upon exceptions filed to the final account of said Edward G. Fahnestock as successor to Benjamin Deford, trustee under the will of Joseph Baugher, deceased.

29. This was a writ of error to the judgment of the court in a feigned issue, directed upon an appeal and exceptions by the city of Harrisburg to a report of viewers, appointed by the Court of Common Pleas of Dauphin county, upon the petition of John M. Sheck, awarding damages against said city of Harrisburg for straightening Paxton Creek through the petitioner’s lands. • The record of said proceedings showed the facts to be as follows : The city of Harrisburg was…

<p>Eeeoe to the Court of Common Pleas of Franldin comity: Of May Term 1883, No. 34.</p> <p>Assumpsit, brought November 3d 1882, by Samuel J. Bare against Jacob Beaver, John Bare, and D. F. Beaver, trading as Beaver, Bare & Co., with notice to S. B. Binehart, assignee of Beaver, Bare & Co. The narr. contained the common counts and a special count for wages for labor performed by plaintiff for said firm, amounting to $381.43, beginning February, 1878, and ending November 14th 1879, with interest on monthly'instalments as due. Pleas, non-assumpsit, payment with leave, &c.</p> <p>On the trial, before Bows, P. J., the following facts appeared : The firm of Beaver, Bare & Co., were manufacturers of agricultural implements, who employed, among other workmen, minors as apprentices in their shops, paying them wages at the rate of seventy-five cents a day the first year, eighty-five cents the second year, and ninety-five cents the third year. In February, 1878, the plaintiff, Samuel J. Bare, a son of John Bare, who was a member of said firm, then a minor nineteen years of age living in his father’s family, was received by said firm as an apprentice in the shops. He testified that his father told him “ he was to get the same as other shop apprentices, seventy-five cents, eighty-five cents, and ninety-five cents that he had no conversation with the other members of the firm on the subject; that an account was kept, on the firm’s books, in his name, wherein he was credited with wages at seventy-five cents a day the first year, and eighty-five cents the second year; that lie did not draw said wages, except on one occasion the sum of $3 ; and that his father never forbid his drawing his wages. It also appeared that his father never made any claim to said wages himself, and was not credited with them on the books.</p> <p>On November 17th 1879, the said firm made a general assignment for the benefit of its creditors to S. B. Binehart, who continued the business for a time. The plaintiff continued to work for the assignee, being still a minor, and after his arrival of age, March 24th 1881, received from Binehart the wages due him for such employment since the date of the assignment.</p> <p>On October 30th 1882, John Bare executed to the plaintiff a release under seal, whereby he did “ remise, release and quitclaim unto my said son, Samuel J. Bare, all right, title and interest which I have or may now have to the wages due from ' Beaver, Bare & Co., for the labor and services of my said son while in their employ, during his minority.” The plaintiff thereupon brought this suit.</p> <p>The defendants presented the following points :</p> <p>1. The wages sued for in this case having 'been earned by the plaintiff during his minority, and there being no evidence of emancipation of the son by the father, the law gives the exclusive right of recovery therefor to the father, and this action cannot be maintained. Refused.</p> <p>2. The father being a member of the firm of Beaver, Bare & Co., the real defendants, the assignment by liim of his right to these wages to the son himself, after the latter attained his majority, gives to the son no other right of action than the father himself had with respect thereto. And the partnership being insolvent and its estate still in the bands of an assignee for settlement, this action of assumpsit will not lie for the-recovery of these wages at the suit of either father or son, therefore, the verdict must be for defendants. Refused.</p> <p>3. The father at most could only have maintained an action of assumpsit against his co-partners individually, and not against the firm, and the son having no other right of action than the father, the suit against the assignee of the partnership cannot be maintained. Refused.</p> <p>The court charged the jury, inter alia, as follows :—</p> <p>“ And, first, it is said the plaintiff ought to be entitled to recover because he was emancipated from the control of his father and allowed to receive his own wages. I do not-so-think. Eo evidence of that sort was offered so far as his wages were concerned, that he was allowed to receive his wages himself. I saw no evidence at all of that in this case. The wages therefore at the time they were earned were by law due to the father.</p> <p>“It appears, however, that on October 30th 1882, some four days before this suit was brought, the father made a' release or an assignment in favor of the plaintiff, whereby lie relinquished to him the right to the wages for which he now sues, and authorized him to receive the same. The father is a-member of the firm, defendant, and it is contended on the part of the defendants that he could not do this inasmuch as the firm is shown to be insolvent. But the plaintiff contends inasmuch as the son, though a minor, performed the work, and that the father released to him his right to receive the money, that the father was not bound to assert his right to recover this money for the benefit of any one, and that he had in fact, on October 30th, relinquished his right to recover- the wages in favor of the plaintiff.</p> <p>“ Such being the case, I am of opinion that the plaintiff is entitled to recover on the ground that the father, John Bare, had the right to execute a paper reléasing and relinquishing his right to recover the wages in favor of his son, and thereby the son was put in a position whereby he might sue the firm, defendant in his own name.</p> <p>“ Your verdict, therefore, as there is no fact in dispute, but only a question of law for the court, should be for the plaintiff for the same amount that is claimed.”</p> <p>Verdict, accordingly, for the plaintiff for $437.93, and judgment thereon. The defendants took this writ of error, assigning for error the refusal of their points as above.</p>

Erroe to the Court of Common Pleas of Adams county: Of May Term 1883, No. 12.

<p>Error to the Court of Common Pleas of Adams county: Of May Term 1883, No. 10.</p> <p>Debt by David Moose and George A. Moose, administrators of Jacob Moose, deceased, against John G. Gilbert. .The narr. claimed the sum of $300, for money had and received by defendant to plaintiffs’ use. Plea, nil debet.</p> <p>On the trial, before McLean, P. J., the following facts appeared : The Southern Pennsylvania Mutual Relief Association of Hanover, York county, Pennsylvania, was incorporated under the Act of May 1st 1876, (P. L. 61, § 37), with authority to insure lives upon the plan of assessments upon surviving members. Jacob Moose, on August 17th 1880, took out a certificate of membership in said association for $2,000, naming as beneficiary, one Peter W. Jacobs; who was named in the application as “step-grandson” of the insured, but who, as it afterward appeared, was not related to Jacob Moose, and had no insurable interest in his life. The policy or certificate provided that the persons for whose benefit it was issued might assign the. same to any person, with the approval of the president and secretary.</p> <p>On August 31st 1880, for the consideration of $28, the said Jacobs assigned his interest in' said certificate to John G. Gilbert, the defendant, who was also without insurable interest in the life of Moose. The association approved such assignment, and recognized Gilbert as the beneficiary of the certificate in question. As such he became liable for assessments^ upon it, which he afterward paid, to the amount of $81.</p> <p>On April 3d 1881, Jacob Moose died, and on September 10th 1881, the association paid to John G. Gilbert, as assignee and beneficiary of the certificate, the sum of $356, as the product of an assessment upon the surviving members of its cías-, and division.</p> <p>The personal representatives of Jacob Moose thereupon brought this action against the said Gilbert, to recover the excess of the amount received by him upon the certificate over his disbursements on account of the same.</p> <p>The defendant requested the court to instruct the jury that under the narr. filed, and the evidence and the law applicable thereto, the plaintiffs were not entitled to recover. The court declined so to charge ; and, in accordance with, the direction of the court, the jury found a verdict for the plaintiffs for $144.04, subject to the question reserved “whether the assignment having been made upon the consideration of $28 only, and the assignee, having no interest in the life insured, holding the policy for the purpose of speculation, and having received the money on the same, whether he is entitled to retain it as against the administrators of the estate of Jacob Moose beyond what he (the defendant) paid out.”</p> <p>The court subsequently entered judgment for the plaintiff upon the verdict and point reserved ; whereupon the defendant took this writ, assigning for error the action of the court in refusing to affirm their point, in directing a verdict for plain - tiffs, and in entering judgment for plaintiffs upon the verdict and point reserved.</p>

<p>The fact that a railroad corporation is in the hands of receivers; appointed by a decree of the United States court, is no hindrance to the settlement of an account against the corporation, in its name alone, for tax on gross receipts due the Commonwealth under the Act of June 7th 1879.</p>

25. Debt, by tbe Commonwealth of Pennsylvania, against the Philadelphia and Reading Railroad Company, upon an account alleged to have been adjusted and settled against the said company by the Auditor-General of the Commonwealth, and to have been approved by the State Treasurer, for tax on gross receipts duo, under the Act of June 7th 1879, for the six months ending June 30th 1881.

<p>“Wkits of error to the Court of Commou Pleas of Dauphin county: Of May Term 1883, Nos. 13, 14, 15, 16.</p> <p>These cases arose in the court helow upon appeals by the respective corporations defendant from settlements made against them by the accounting officers of the Commonwealth, under the Acts of June 7th 1879 (P. L. 112), § 17, and June 10th 1881 (P. L. 99), § 2, upon their bonded indebtedness for the years 1880 and 1881.</p> <p>The companies did not deduct the four-mill tax from the interest on their bonded debt, and pay the same into the state treasury, for the years stated, as provided by the Acts of 1879 and 1881, but paid the interest to their creditors in full, as it matured.</p> <p>The defendants, under protest, made report of their bonded indebtedness for the years in question. The Auditor-General thereupon settled accounts against the Lehigh Valley Bailroad Company for tax at four mills upon bonds not shown tobe held by non-residents, claiming as tax for 1880 the sum of $98,792, and for 1881, the sum of $37,140.</p> <p>To which settlements specifications of objections and appeals were filed, setting forth, inter alia, that the taxes sought to be collected had been paid through' other channels, and that tile’ State, having received them once, was not entitled to recover them again.</p> <p>The cases were tried together before the court, without the intervention of a jury, under the Act of April 22d 1874 (P. L. 109). The facts were substantially the same in each case, and the legal questions identical.</p> <p>There were produced in evidence the returns to the Revenue Hoard, made in 1880, by county commissioners, showing by townships, wards, and boroughs the assessed “value of ail mortgages, money owing by solvent debtors, etc.,” in each county and city of the Commonwealth. Also the duplicate valuation made October 20th 1880, by the Revenue Hoard (consisting of the Auditor-General, the State Treasurer, and the Secretary of the Commonwealth), showing the “ value of all mortgages, money owing by solvent debtors, etc.,” and apportioning among the counties the four mills tax thereon, amounting to"$392,283.23.</p> <p>The State Treasurer was called, and testified that upon the valuation made by the Revenue Hoard, the taxes had been paid in full for 1880 and 1881.</p> <p>The court (McPueesom, J.) found, inter alia, the following facts:</p> <p>7. Eor the year 1880, the commissioners of every county of the Commonwealth made returns to the Revenue Commis: sioners as required by law, of the valuation of “ all mortgages, money owing, by solvent debtors,” etc., within their respective counties, which returns were adopted by the said Revenue Commissioners, and a record of such valuation was by them transa mitted to each county, upon which valuation the State tax upon mortgages was assessed. This valuation remained unchanged for the year 1881, and no other valuation or assessment of mortgages for the purpose of State taxation was made for 1880 or 1881.</p> <p>8. The taxes assessed upon said valuation and record for the years 1880 and 1881 have been paid in full to the Commonwealth.</p> <p>The findings of fact are more fully referred to in the opinion of the Supremo Court, infra.</p> <p>In its conclusions of law upon the fact as found, the court used the following language:</p> <p>[“ There are other questions to which we will hereafter refer, proceeding now to the discussion of an objection which goes to the entire claim, and which, after much reflection and careful • examination, .seems to us to be fatal, viz.: That the taxes now sued for are presumed to have been paid.] The tax in question is claimed under the seventeenth section of the Act of June 7th 1879, and its supplement of June 10th 1881, and under either Act is upon the ‘ mortgages or bonds secured thereby of the defendant corporation. .It is in no sense a tax upon the corporation itself, either upon its franchises or its property ; it is upon the corporation’s bonds in the hands of its creditors, and is consequently a tax upon property belonging to individual citizens of the State. The defendant is simply a collector, and, as we have seen is only liable- if, and because, it fails to collect. [The tax is one which has been long in force, and was not imposed by the Acts of 1879 and 1881.] They only change the rate from three mills to four mills, and so far as they enumerate subjects of taxation, are merely re-enactments of the earlier law. We regard these two Acts as part of the revenue system of the Commonwealth, and it becomes necessary therefore to consider the former statutes in order to determine their proper-place and effect. . . ■ . .</p> <p>[“ When therefore the Act of Juno 7th 1.879, was passed, there existed a complete system for assessing and collecting State taxes upon mortgages. That Act made no change in the method of valuation or assessment; it is wholly silent on that subject; it simply declared certain subjects to be taxable at four mills upon their value, and as.to-mortgages of corporations owned by individuals, directed that the corporation should deduct the tax upon the value from the interest, and pay it over to the State treasury.] But how was the value to be ascertained ?' The words'of the section are: ‘ Made taxable for State purposes at the rate of four mills on every dollar of -the value thereof annually:’ This phrase, ‘ every dollar of the value thereof,’ occurs also in section thirty-four of the Act of 1844, and clearly means actual value. . . ... Moreover, section seventeen itself of the Act of 1879, has eonstrned this phrase in the same way by providing a method for ascertaining the actual value of bank shares, which arc taxed by the same. words and in the same sentence as the mortgages now in qnestion. [There is no other machinery for ascertaining the actual value of mortgages, however, than that provided by the earlier laws, and the evidence before, ns shows that it was put in operation.] The County Commissioners made returns to the Bevenuo Board of all mortgages valued for State taxation ; the returns were accepted- and duly acted upon by the Board,, the taxes were assessed,, collected, and, as the State Treasurer testifies, fully paid for the years in question.</p> <p>“We.must presume, ho.we.ve'r much,in the face of common knowledge, that the Assessors, the County Commissioners and the B-evenue Board have done their d.vty, and must give to their solemn and recorded acts thqprimy facies of truth. We have no evidence of.any kind tending to rebut the presumption that their official duties, performed under oath and aided by extensive and unusual statutory powers, have been fully and faithfully discharged, and we cannot act upon common fame. The Commonwealth must make out her case, botli because the right to a tax must be clear before collection can be made, and because she comes into court like any other suitor, having no peculiar advantage of presumption or intendment. Here she claims to recover a tax, collectible by her own careless legislation in two ways, and is met with evidence tending to show that all taxes upon the property in question have been assessed and collected through one of her agencies. Without more, how can we say that this is not true ? . . . Moreover, there is certainly no presumption, whatever the negligence of assessors may be, that none of these bonds were included in the assessment of 1879, and if some were included they are still there and have paid tax already for 18S0 and 1881. But how can their number be ascertained by the defendant ? [It has no control over the process of assessment or over the ordinary collectors; it is only one of the State’s agents without information as to the action taken by the others, and commanded to collect a tax without oven being furnished with a duplicate of its assessment. And further, this tax being upon the actual value of the bon,ds, how much shall the corporation retain ? It has been given no power to make a valuation, and none is made by the Act itself. This is done by another agency, of whose proceeding the defendant has no knowledge; how then can it calculate the sum it must deduct? The Act of 1881, does not materially differ from the Act of 1879, and we need not separately discuss its provisions. Both leave untouched the old method of valuation and assessment, and the same presumption of payment applies to the taxes claimed under the later statute. . . . The Act of 1881 is a supplement to the Act of 1879, and was intended to re-enact and supply the seventeenth section, but in the failure to provide for a valuation of mortgages it is like the original, and the remarks just made apply to it with equal force. In this respect it only differs from the Act of 1879 by providing for a return by the corporation of ‘ the amount of such indebtedness,’ and this does not seem to us to be any nearer a perfect valuation.]”</p> <p>Simontoit, P. J., concurred in the above opinion.</p> <p>Judgment for defendants in each case.</p> <p>The Commonwealth excepted to those portions of the conclusions of law above included within brackets and to the judgments.</p> <p>The court overruled the exceptions, and judgment was entered for the defendants in each case; whereupon the Commonwealth took these writs, assigning for error, inter alia, the dismissal of the exceptions.</p>

17. This was, in the court below, an action of debt by the Commonwealth against the Philadelphia and Southern Mail Steamship Company, and an appeal by said corporation from a settlement made by the Auditor-General and State Treasurer, charging said company with tax on its gross receipts for the period from Jannary 1st 1877 to June 20th 1881, under the Acts of March 20th 1877 and June 7th 1879.

1. Certified from the Middle District to the Western District of this court. Indictment of John Coyle, Jr., for murder in the first degree of Emily Myers. The indictment was found, and the case was originally tried in the Oyer and Terminer of York county, when there was a verdict of guilty, as indicted, and sentence was pronounced. Upon a writ of error to this court the judgment was reversed and a venire facias de novo awarded (reported 4 Out. 573).

<p>Appeal from the Court of Common Pleas of Clarion county: In equity : Of October and November Term 1883, No. 113.</p> <p>This was an appeal by John Logue, Sr., from a decree declaring a certain sheriff’s deed .to him, absolute on its face, to be a mortgage, and enjoining him from conveying or incumbering the premises, &c.</p> <p>Bill in equity, filed November 1st 1879, between John Logue, plaintiff, and John Logue, Sr., defendant, setting forth as follows:</p> <p>(1) That complainant had a judgment of $2,000 against Eli Logue, on which a fi. fa. was issued to No. 322, August Term 1879, on which the sheriff of Clarion county, levied and advertised for sale as the property of said Eli Logue, a certain tract of land, known as the Logue farm, in Perry township, in said county, containing 27-1 acres, more or less, bounded, &c. The said property was at the same time advertised for sale as the property of said Eli Logue at the suit of Sarah Jane Slatteiy.</p> <p>(2) At the same term, the said tract of land was levied upon and advertised by the sheriff to be sold as the property cf Keuben Logue at the suits of J. V. Pitts, cashier ; IT. Collner & Bro., and others.</p> <p>(3) That on the 23d of August 1879, after due and public notice the said tract of land was cried and sold by the sheriff to the plaintiff, as the property of said Eli Logue on the said writs of the plaintiff and Sarah Jane Slattery for $100; and that it was also cried and sold to the plaintiff on the said writs of J. Y. Pitts et al., as the property of the said Peuben Logue, for $6,110.</p> <p>(1) That after said property was so knocked down to the plaintiff, the defendant, John Logue, Sr., agreed with the plaintiff to lend him the money so bid ($6,110) until the plaintiff could refund the same with interest; and as security for said loan it was agreed and arranged between plaintiff and defendant that the sheriff’s deed for said property should be made directly to the defendant instead of to the plaintiff, and to be held by defendant in the nature of a mortgage until plaintiff could and would repay him the said money with interest thereon — and the sheriff’s deed was executed, acknowledged and delivered accordingly.</p> <p>(5) That soon after defendant obtained the sheriff’s deed for the property as set forth in the preceding paragraph, he fraudulently repudiated the said arrangement and agreement, and asserted and pretended, and still asserts and pretends, that he holds the legal title to said premises absolutely in his own right and free and clear of any trust for or equity of redemption in the plaintiff.</p> <p>(6) That on tlieMth of October 1879, the plaintiff tendered to defendant in repayment of said loan and interest thereon, $6,200, which defendant refused to accept, and the plaintiff is still ready and willing to repay the same to defendant as the court shall order or direct.</p> <p>The bill prayed : (1) That the said deed so held by defendant may be declared to be a mortgage, and that the defendant may be enjoined from taking possession of said premises or the rents, issues or profits thereof. (2) That the defendant may be decreed to re-convey the said tract of land to the plaintiff. (3) Further relief.</p> <p>The respondent, in his answer, denied the agreement and arrangement set up in the bill, and averred, in substance, that the complainant had bid in the property at said sheriff’s sale, acting as respondent’s agent; that he (respondent) had paid the purchase-money, and bought the premises absolutely, and in his own right and free and clear of any trust or equity in complainant. It was admitted that the defendant obtained possession of the premises after the bill was filed.</p> <p>Before the Master and Examiner (James Boggs, Esq.) voluminous testimony was taken in support and contradiction of the averments of the bill. The complainant testified directly as to the making of the alleged agreement, and he was corroborated in all essential details by several other witnesses. The respondent testified as positively in contradiction of such agreement, and was also supported in his testimony by that of several other parties. A great many witnesses were offered to establish or impeach the reputations for veracity of the leading witnesses.</p> <p>The Master, after reviewing the testimony, and citing authorities, reported as follows:</p> <p>“ In the light of these authorities, and upon full consideration of all the evidence, without further commenting upon the weight, weakness or contradictions therein, on either side, in our judgment it preponderates strongly in favor of plaintiff ; and establishes beyond any reasonable doubt, to our satisfaction, the complaint'set up in this bill. We therefore find the facts stated in plaintiff’s bill to be substantially true and correct, and. content ourselves by this reference thereto, without extending this report by re-writing them here.”</p> <p>It having been contended by counsel for the respondent, that complainant, by his own showing, had no such interest in the premises as could be mortgaged ; the Master reported as matter of law that the complainant had such an inceptive interest in the property by his bids, as enabled him to make the alleged agreement.</p> <p>The Master therefore reported a decree that the sheriff’s deeds in question be declared to be mortgages in the defendant’s hands; that the respondent re-convey the property to complainant upon re-payment of the loan, less any rents or profits issuing from the land during the possession of the respondent, and that a Master be appointed to state an account between the parties, and state what amount, if any, remained due upon the loan.</p> <p>Exceptions filed to this report both as to findings of fact, and conclusions of law, were dismissed by the court, and a decree was entered that the deeds made and delivered by the sheriff of Clarion county to John Logue,'Sr. “ be declared to bo taken and held by said defendant as a mortgage to secure the payment of a loan of $6,110, made by defendant to plaintiff, August 23d 1879 ; and that defendant be hereby enjoined from conveying or incumbering the said premises.”</p> <p>The defendant thereupon took this appeal, assigning as error the dismissal of his exceptions and the entry of the above decree.</p>

<p>Error to the Court of Common Pleas of 1Westmoreland comity : Of October and November Term 1883, No. 29.</p> <p>Scire facias by the Commonwealth of Pennsylvania, at the instance of John H. Highberger, who is suggested as plaintiff, against James Borlin, William Brisbine, et ah, upon a recognizance in the penal sum of $25,000, given to insure the faithful execution by said Borlin of his official duties as Sheriff of Westmoreland county, upon which recognizance Brisbine et ah were sureties. A certified copy of this recognizance was filed by the recorder of deeds of said county, in the office of' the prothonotary.</p> <p>The facts were as follows: During the yeans 1878 and 3879, Borlin and Higliberger occupied the positions of sheriff and prothonotaiy of Westmoi'eland county respectively. In the course of their official duties, each received certain fees due to the other. Several attempts were made to adjust these accounts, but a settlement was never consummated. Higliberger, believing that a balance of over $1,000 remained due to him on said account, after deducting every credit dixe to Borlin, filed a praecipe instructing the prothonotary of Westmoreland county, to “issue scire facias sur recognizance” against James Borlin, assigning as a breach, the failure of Borlin to pay the said amount ($1,234.77). The writ incorrectly recited the recoveiy of a judgment against Borlin et al. on said recognizance, but this was a clerical error, as the scire facias xn fact issued upon a certified copy of the recognizance duly filed in the office of the prothonotary.</p> <p>The defendants pleaded nul tiel recoi’d, nil debet, and payment with leave, &c.</p> <p>On the trial, before Hotter, P. J., the plaintiff moved to amend the writ so as to make it conform to the praecipe and record. Objected to; objection overruled, and amendment allowed. Exception.</p> <p>The court then entered judgment for the plaintiff upon the plea of nxxl tiel x’ecord, and directed the trial to proceed. Exception. (First assignment of error.)</p> <p>The plaintiff offered in evidence the record of Ho. 331, Febnxary Term 1878, of the Common Pleas of Westmorland county, being a certified copy of the official recognizance of the defendants. Objected to, inter alia, because under the Act of April 15th 1834, § 74 (Purd. 1307), a certified copy of the recognizance is insufficient to support a scire facias. Objection overruled and record admitted. Exception.</p> <p>It further appeared that Highberger had receipted on the dockets for the amounts so claimed to be due him. To explain these receipts, he offered to testify that they were placed by him on the dockets in the course of axx attempted settlement, without the payment of any money, and as a matter of convenience. That, as the amounts due him were called out, he receipted therefor, in anticipation that the settlement would be ultimately concluded, and with the understanding that when the balance was struck, the amount adjudged to be due him would be paid. Objected to, as a parol contradiction of tbe record by one whose term of office had expired. Objection overruled and evidence admitted. Exception. (Third assignment of error.)</p> <p>The court charged the jury that the recognizance was duly filed in the office of the prothonotary, and left it to them to determine from the testimony the amount, if any, due to' the plaintiff.</p> <p>Verdict for the plaintiff for $1,196.49, and judgment thereon. The defendants took this writ of error, assigning as error the judgment on the plea of nul tiel record for the plaintiff, the admission of ITighberger’s testimony, and the instruction of the court that the recognizance had been duly filed.</p>

55. Appeal by Jacob McCormick et al. devisees of Robert McCormick, deceased, from a decree' of said court affirming the report of an Auditor, appointed to distribute the funds in the hands of A. A.… Held: the rents and profits of real estate, until sold, go to the heirs or persons named in the will, and if any one of them occupies real estate, he must account to the other heirs and not to the decedent’s estate.

<p>Error to the Court of Common Pleas of Venango county: Of October Term 188.3, No. 136.</p> <p>This was a quo warranto, allowed by the court of Common Pleas of Mercer county, to the Commonwealth of Pennsylvania, ex relatione Wallace Pierce, James B. Pierce, Prank Pierce and James L. Deeter, directed to Jonas J. Pierce, Enoch Eiler, Joseph Porker, B. TI. Henderson, John Phillips and H. C. Blossom, requiring them to show by what authority they exercised the office of directors of the Sharpsville Bailroad Company. *</p> <p>The respondent filed an answer which was, on motion, allowed to be regarded solely as a plea, and the relators having filed a replication thereto, the venue was removed to Yenango county and the case tried before Taylor, P. J., and a jury, when the facts appeared as follows :</p> <p>The Sharpsville Bailroad Company was a railroad corporation, incorporated March 6th 1876, under the Act of April 4th 1868 (P. L. G2), and subject to the provisions of the Act of February 19th 1849, entitled an “ Act regulating railroad companies” (P. L. 79). Its capital stock consisted of 7,000 shares, all of which had been issued before January 8th 1883. On that day the company held an election for a president and six directors. It was admitted that there was no irregularity about the election, that it was properly called and at the proper time. At the election 6,433 shares of the total 7,000 were voted for directors: of these 3,396 were for the respondents and 3,037 were cumulated and distributed among the four relators, making the actual votes cast as follows:</p> <p> </p> <p>It was testified that, none of the votes for the relaijffife Hi'ere cast until after those for the respondents ; nor was any'offer to vote made by those voting for the relators until all the stock of the respondents had been polled.</p> <p>There was evidence that some of the stock that was voted for the relators, amounting to two hundred shares, had been hypothecated and assigned in blank. All the votes cast for the relators were folded up and indorsed with the name of the voter and the number of shares voted. These .ballots had been prepared previous to the election by one of the relators who had the plan ready for some time; it was testified that he had said “The Erie gentlemen did not expect that I would play this trick on them. They didn’t think I had sealed these votes up and put them away in my safe two weeks before the election, and I didn’t let anybody know it.” It was denied, however, Prior to the that this languagé had been used. counting of the votes, no one claimed the right to cumulate his vote.</p> <p>The votes cast on the cumulative system were not counted by the judges of election, and the respondents were accordingly declared elected.</p> <p>The respondents asked the court to charge : “ That stockholders of railroad companies constructed for general public use, have no legal right to cumulate their votes at any corporate election held by said stockholders, and if such corporations are included in the provisions of section 4 of article 16 of the Constitution of Pennsylvania, the legislature has not passed any law for carrying into effect the provisions of said article, so far as relates to such corporations.’ ’</p> <p>The court answered this point in the negative and charged, inter alia, as follows :</p> <p>“ There is no controversy but that the respondents voted open ballots. If the evidence is believed, it was discovered after the votes were polled for the first time, that the relators had with unanimity voted a cumulative ballot, that is, they voted for four persons only, thus cunmlating their votes upon four persons. Now, the whole number of votes for the plaintiffs as cumulated, amounted to four thousand five hundred and fifty-seven (4,557), that — deducting two hundred shares, which were hyjDothecated, and which the respondents allege the relators were not legally entitled to vote, upon deducting these two hundred shares which had been hypothecated, and there still would be a majority, if you believe the evidence, in favor of the Pierces, as follows: Wallace Pierce, 4,357; Frank Pierce, 4,356 ; Jas. B. Pierce, 4,355, and James L. Deeter, 4,852. That is the amount of the cumulative vote upon these four candidates for the office of directors.</p> <p>“We instruct you, in our opinion, that either party at this election, or any one of either party, had the right to cumulative voting. That is, any one or more could cumúlate his vote upon one or .as many candidates as he or they saw fit. The ballot was in proper form, and we can see no impropriety in it. The only matter under the law, or which seems to have been required by the law, was that there should be upon the back of the ballot the name of the party voting, and the number of shares he claimed to have the right to vote upon. Under this Constitution we say to you, these relators had the right to cumulate their votes upon one or more of the candidates as they saw fit. We cannot legislate — we can only execute the laws as we understand them.</p> <p>“ There is no general rule of law but will work hardships in particular cases, but the remedy is with the legislature or constitutional convention; not with us. If there be an evil whereby a minority has acquired control of this railroad, the remedy is not with us. W e simply execute the law as we find it. $</p> <p>“Row, gentlemen, as to whether there was any fraud in the conducting of that election. As has been well remarked by counsel, fraud vitiates everything, renders null and void ail acts, and a court of justice is the last ¡dace on earth where it ought to find shelter. But fraud is never presumed — it must be proven. It is proven in the same manner any other fact is proven. That is, the jury must be satisfied from the weight of evidence that there was a fraud perpetrated. The counsel, it seems, have deemed this question of so little importance upon either side, that they have not addressed you upon it. We say to you that, in our opinion [mere secrecy in the conduct of these gentlemen upon either side by withholding from the other party, whom they intended to vote for, or that they intended to cumulate their votes, does not amount to fraud].”</p> <p>Verdict for the relators, and judgment of ouster thereon against the respondents, whereupon the respondents took this writ, assigning for error, inter alia, the refusal of respondents’ point above noted, and so much of the general charge as is included in brackets.</p>

125. Debt, on a bond of indemnity, by Lindsey, Sterrit & Co., against George T. Yan Doren, obligor, and Lewis Siianafelt and John O. Reid, sureties. The last named defendant alone was served, and he pleaded nil debet and payment. On the trial, before Knox, P. J., the record showed the following facts : — On March 28th 1877 judgment was' entered oil a judgment note in favor of Lindsey, Sterrit & Co., against David M. Sample for $923.

<p>Ebbob to the Court of. Common Pleas of Westmoreland coimty : Of October and November Term 1883, No. 35.</p> <p>Ejectment, by Rachel Fulton against William and Lawrence McLaughlin to recover a certain farm or tract of land in Washington township, Westmoreland county.</p> <p>On the trial, before Hpntek, P. J., both parties claimed title through one John Dunn, who had conveyed the land in ■question on March 28th 1872, to William A. Fnlton, the consideration recited in the deed, which was recorded May 7th 1872, being $3,150. On behalf of the plaintiff it was alleged that most of the money paid by William A. Fulton, her broth■er, belonged to their mother Eleanor Fulton, and therefore that the son held in trust for his mother to the extent of the •money paid by lier, though no mention was made of this fact ■in the deed.</p> <p>Eleanor Fulton died in January 1880 leaving a last will and testament by which she devised all her property real and personal to the plaintiff.</p> <p>The defendants claimed title as the grantees of the Apollo Savings Bank, which purchased the property on May 12th 1879 at a sheriff’s sale thereof, made under an execution issued on a judgment obtained against William Fulton while the title was in him. At this sale a notice was given that Eleanor Fulton claimed an interest in the land to the extent of $1,050.</p> <p>The defendants went into possession under a writ of habere facias, issued in pursuance of a judgment in ejectment obtained by them in 1880, by virtue of their title under the sheriffs sale.</p> <p>Rachel Fulton brought this suit on September 23d 1880, and in order to show whence the money paid to Dunn came, and thus to establish the trust, put in evidence : a deed from Eleanor Fulton to James S. Ford, dated November 14th 1867, consideration $3,000, for a tract of land in Armstrong county ; a deed by Robert M. Reed to William A. Fulton, dated March 31st 1868, consideration $6,143, for a tract of land in Westmoreland county; and a deed from William A. Fulton to William Sloan, for the last mentioned tract, dated March 29th 1872, consideration $6,143. It appeared from the testimony, that in 1867 and previous thereto, William A. Fulton, with his mother and sister, all lived together on the property afterwards sold to Ford; which belonged to Eleanor Fulton. In 1868 they all went to live on the farm which was bought from Reed in the same year, and in 1872 they moved to the Dunn farm (the one in dispute), where they all lived in the same house until 1874, when William was married, and his mother and sister wont into another house on the same farm. In March 1879 William loft this property and his mother and sister remained until ejected by the defendants. During this time William A. Fulton managed the farms upon which they lived, as well as all his mother’s affairs, and she, being old and illiterate, trusted him implicitly.</p> <p>In regard to the money paid for the several farms William Fulton testified as follows: ‘‘ When the farm was sold to James S. Ford, I conducted the transaction in behalf of my mother. When the money was paid I was present.....I remember that the money was counted out and laid on the table in the house ; I cannot tell you who took it up. ... It was taken in charge by some one in the house: then I took it from my mother’s and left it in Bovard’s safe in Apollo ; it stayed there until I bought from Sheriff Reed : I got most of the money that I paid Sheriff Reed from that sale ; the same money that Ford paid was paid over to Reed.....Altogether there was $2,000 of the proceeds of this sale- to Ford paid by me to Sheriff Reed ; the purchase money of the Reed farm amounted to over $6,000 ; there was a good deal of it on credit; there was over $2,000 or $2,500 that was paid in cash ; the last of the purchase money of the Reed farm was paid to Reed when I sold to Sloan ; I never paid it all out until I sold the farm again to James Sloan ; $2,000 of tlie money I got from Sloan went into the Dunn farm; that was all the Sloan money that went into it direct.....I purchased that farm from Eeed on my judgment; I was urged by mother to buy a farm ; when that farm was sold to Ford, mother said she wanted the money saved for the purpose of buying a farm ; she urged me to buy one after it was sold, and I did buy it from Sheriff Eeed and paid for it in this way; my mother never knew, by me, that I was taking the deed in my own name ; my mother was born in 1795; in 1867, when I sold that farm, she would be seventy-two years of age ; she could not read writing nor write ; . . . . to the best of my recollection I sold the Eeed farm in 1872 ; I bargained with James Sloan to sell it; this bargain was made on the farm; it was not at the house; we looked over the farm, and it was up at the upper end of the farm, on the big road, when he said lie would take it; we agreed upon the price of $50 per acre ; . . . . the contract was made sometime in the fall or winter, and the deed was executed about the 1st of April; or a day or so before it, maybe; I am speaking of the Sloan sale ; to the best of my knowledge it was the 1st of April, 1872, when that deed was made.....I deposited a good part of the $1,000 that he paid down in the Apollo Savings Bank ; I think I deposited $800 of it . . . I deposited it in my own name; my mother knew that I had sold the farm; I did not give her nor my sister any of it; Sheriff Eeed was there at the transaction when the balance Avas paid by Sloan ; I Avrote for him to meet me at Oakland ; if I recollect right the balance I got from Sloan at the time the deed Avas made Avas something over $3,000; I told you that Sheriff Eeed held judgments, against this farm, and he met mo and got his money at the time of that transaction ; Sheriff Eeed was there and he just received what was back on the Eeed farm; I can not distinctly fix the amounts that he and I got; I said $3,000 ; I think that included the first $1,000 that he gave me when we made the contract; I think it was something over $2,000 that he paid me when he got the deed; that I had after paying Sheriff Eeed ; I put that $2,000 in my pocketbook and took it home and gave it to a neighbor that evening ; I did not loan it; I just left it at Jacob Earns’, and the next day I was to meet Dunn at Apollo, and I went and got the money and took it over and paid Dunn; Jacob Earns’ daughter was present and I gave it to her and told her to take it down to her father to keep until I called on it; I paid it the next day to John Dunn ; I made the article with John Dunn in the winter; I think if it was in December it would be in 1871; I think it Avas in 1872 to .the -best of my judgment. . . . 1 think I was to pay Dunn $100 when avc dreAV the article.....I got tlie $100 or the part of it that I paid him when the article was made, out of my pocket; I had some money of my own ; I suppose this first payment was of my own money ; that was paid at the date of the article.”</p> <p>Rachel Fulton was then offered as a witness to prove: the number and condition of her mother’s family at her death ; that her mother was the owner of the farm sold to Ford ; that the money arising from the sale of the Armstrong county property was given by Eleanor Fulton to buy another farm for her in Westmoreland county, and was so used; that the mother, brother and herself occupied all these farms successively until Eleanor Fulton died, and that the witness occupied the Dunn farm until it was forcibly taken possession of by the defendants; all this for the purpose of proving that William A. Fulton was trustee for his mother, Eleanor Fulton.</p> <p>The defendants objected to this evidence as incompetent under the Act of 1869, because it related to facts occurring during the lifetime of Eleanor Fulton.</p> <p>Objection overruled and evidence admitted. Exception. (Eighth assignment of error.)</p> <p>The defendants submitted, inter alia, the following points :</p> <p>1. “William A. Fulton, having contracted for the purchase of the land ; having paid the purchase money; having taken the deed in his own name ; and having put it on record ; and having gone into the possession of the land ; and having paid the taxes, the same being assessed to him, and thus clothed with all the indicia of ownership, although the plaintiff and her mother, Eleanor Fulton, also w’ent into possession along with him, such possession of the mother and daughter would not be in the execution of the alleged trust, and the plaintiff is barred by the provisions of the sixth section of the Act of 22d April 1856 (Briglitly’s Pnrdon, page 930), unless the trust arose by the fraud of William A. Fulton or his mother in taking-title in his own name.”</p> <p>Answer. “ We have called your attention to the Act of 1856, and have only to say that if there was any abuse of confidence on the part of W. A. Fulton, this statute does not apply.” (First assignment of error.)</p> <p>3. “In a case of this kind the court sits as chancellor, and if the evidence is too vague, uncertain or doubtful to establish the equity set up, it is the duty of the judge to withdraw the case from the jury. (See Church and wife v. Rnland and wife, 14 Smith 432.) In this case we instruct yon, that in the absence of any direct evidence that Eleanor Fulton directed her son William to purchase the Reed farm or the Dunn farm in her name, and in the absence óf any evidence that she took any part in the purchase of those tracts of land, or made any inquiry about the price they cost, and in thp absence of any evidence that William used any artifice to induce her to believe that the land, had been purchased in her name, although she was living with him, and where the evidence rather tends to prove that she allowed her son to use a portion of her money to purchase a farm or farms for himself, together with such money as he might have, the evidence in such case is insufficient to establish the trust here set up, and your verdict should be for the defendant.”</p> <p>Answer. “ The first branch of this proposition is correct. But as to the second branch of it we are unwilling to say that there must be proof that there was artifice on the part of William. You have a mother and son ; if the mother reposed confidence in the son and he abused it, she could not be prejudiced. If ho did he would be a trustee ex maleficio, and we decline to take the case from the jury.” (Third assignment of error.) '</p> <p>5. “ If you believe the evidence, William Fulton contracted for the purchase of the Dunn farm in his own name, and paid, at the time the contract was made, about one hundred dollars or less of his'own money ; from such a contract no trust could arise in favor of Eleanor Fulton, the mother, as to that tract of land, which is the one in dispute. — The important time at which a trust attaches, if at all, is at the inception of the title, which, in this case, would be when the contract was made for the purchase of the Dunn farm ; and although William may afterwards, when the deed was made, have used a portion of his mothePs money to pay the balance of the purchase money due on the land, yet such use of her money subsequent to the inception of the title, would not fasten on it a trust in favor of the mother; and as the plaintiff claims under her mother, your verdict should be for the defendant.”</p> <p>Answer. “ We are unwilling to affirm these points as submitted. As a general proposition, where a trust is set up it would be where the contract is first entered into. But as we have repeatedly said, did William use the money of his mother in the purchase of these farms and in the abuse of any confidence which she had in him ? If he did, and used her money when deeds were procured, in good conscience and equity he would be liable.” (Fifth assignment of error.)</p> <p>S. “ If the jury believe the evidence, the Apollo bank was a purchaser for a valuable consideration without notice of the trust, if there was one. The written notice given at the sheriff’s sale was an abandonment of any implied notice that might arise by the plaintiff and her mother being on the land, and the notice given at the sheriff’s sale was inadequate to warn bidders and purchasers of the trust now set up.”</p> <p>Answer. “Wo think the notice given at the sheriff’s sale was sufficient to put the bank on their guard, that Eleanor Fulton, claimed an interest in the land to the extent of $1,650.” (Sixth assignment of error.)</p> <p>Verdict for plaintiff for thirty-three sixty-thirds of the farm, with six and a quarter cents damages and costs; and judgment thereon. Whereupon the defendants took this writ, assigning for error the answers to their points, and the admission of Eachel Fulton’s testimony as above noted.</p>

<p>1. In an application to the Court of Common Pleas to have a judgment marked satisfied, under the Act of March 14th 1876 (P. L. 7), it is essential to aver that actual payment of the judgment has been made in full. An allegation of set-oil to the full amount of the judgment will not bring the application within the operation of the Act.</p> <p>2. In such an. application, a petitioner set out that the judgment was not fully paid, but that he claimed a set ofE to the amount remaining due thereon, which the plaintiff in said judgment refused to allow. The court granted a rule to show cause why the judgment should not be marked satisfied. The respondent filed an answer, denying the materia) allegations of the application. The court appointed a commissioner to take testimony, and the parties litigant agreed in writing that said commissioner should “report the facts with his opinion to the court.” Held:</p> <p>(1.) That the averments of the application did not bring the petition within the intendment of the Act of March 14th 1876 (P. L. 7), and the granting of the rule to show cause was error.</p> <p>(2.) That upon the filing of the answer, the rule should have been discharged, and the appointment of a commissioner was error.</p> <p>(8.) That the said written agreement of the parties did not warrant the conclusion that they had consented to such appointment or had submitted the case to the commissioner as to an arbitrator or referee.</p> <p>3. Felt v. Cook, 95 Pa. St. 247, followed.</p>

106. Debt, on a sealed note. The action was brought April 4th 1879, by A. R. Miller, treasurer of the Pennsylvania Synod, against Nathaniel Clark, Thomas Hoskinson and Timothy W. Ross, the makers of the note. Service was accepted by Ross. and the writ was served on Hoskinson.

53. Indictment by the Commonwealth of Pennsylvania against John Sifred, Sr., and John Sifred, Jr., for selling and permitting liquor to… Held: nor on Sunday, nor at any time to a minor or to a person visibly affected by intoxicating drinks.” Section 1 of the same Act provides : “ That any sale made of vinous, spirtuous, malt dr brewed liquors, or any admixture thereof, contrary to the provisions of this law, shall be taken to be a misdemeanor, and upon the conviction of the…

104. This was, in the court below, a petition by Samuel M. Stewart praying leave to pay into court the amount “admitted to be due ” on a certain mortgage, given by him, with interest, etc., the mortgage to be thereupon marked satisfied by order of court.

46. Debt, by H. Croushorb, M. L. Painter and J. B. Blyholder, administrators of the estate of Israel Painter, deceased, against A. O. Tinstman. Pleas, payment with leave, etc., and set-off. On the trial, before Hunter, P. J., the following facts appeared : Daniel Felgar owned a tract of land in Westmoreland county, and by agreement dated June 16th 1879, he gave an option to his son William B. Felgar to purchase the same.

31. Feigned issue, devisavit vel non, directed by the Orphans’ Court, to determine the validity of a writing purporting to be the last will and testament of Ilettie Furry, deceased, wherein William Anderson and William Nichols, executors under said will, were plaintiffs, and Martha Caldwell, Mary Anderson, Amanda Anderson, Nancy Anderson, John B. Johnston and Martha, his wife, in her right, Harry E. Anderson, Maggie Anderson and John Beatty, contestants, were defendants.

<p>Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1883, No. 51.</p> <p>Debt, by Martha M. Hughes against The Westmoreland Coal Company, to recover a balance of unpaid purchase money for coal in Westmoreland county.</p> <p>On the trial, before Hunter, P. J., the following facts appeared : The plaintiff had a life estate in certain coal under the will of her first husband. In 1853 she was married a second time, to Rev. Watson Hughes who joined with her in a conveyance of this coal to William Larimer, Jr. The deed, dated August 31st 1853, was signed by Hughes and his wife as parties of the first part, and by William Larimer, Jr., party of the second part, and contained, inter alia, the following provisions :</p> <p>“ For each acre of good merchantable coal contained in that portion of the land which lies along the west side of the ravine on the east side of the Sowash property, the sum of $140 per acre, and for the merchantable coal upon the remainder, the sum of $70 per acre, payable semi-annually, as fast as the coal is mined. The payments shall commence from and after the first day of January next, and shall not average less than $500 per annum. And if the coal mined should not be sufficient to pay this amount, the balance shall be advanced by the party of the second part. These payments of $500 per annum shall continue until the whole of that portion for which $140 per acre is to be paid, shall have been mined, and this portion shall be the first taken out, after which the payments shall be in the same proportion as the price per acre of the coal, it being understood that if more coal should be mined than will pay the $500 per annum, at the prices named, the full amount shall be paid to the parties of the first part.”</p> <p>The defendants became grantees of William Larimer, Jr., on December 22d 1854, and succeeded to his rights and obligations under the original deed. Rev. Watson Hughes died in March 1870 and William Larimer, Jr. died in May 1875, six years before this suit was brought by Mrs. Hughes.</p> <p>The plaintiff alleged that since July 1st 1878 the defendants had paid her but $250 per annum, and therefore claimed to recover an additional $250 per annum during the interval; also to recover money due and unpaid by reason of the defendant having mined more coal per annum, for several years, than would pay either the $250 or the $500 per annum, as provided in the article, with interest thereon from, the time that the same should have been paid ; and also to recover an unpaid balance of $70 per acre on about 41.55 acres of coal mined by defendant, and for which but $70 per acre had been paid, whereas $140 per acre should have been paid.</p> <p>The evidence showed that on the east (or more accurately on the south-east) of the Sowash property, commencing at the northern part, there was but one ravine, which ran approximately north and south, but that after running south about opposite the middle of said Sowash property, this ravine separated into two, No. 1 running south-east and No. 2 southwest. Therefore, opposite the southern half of the Sowash jiroperty, in a general easterly direction, there were two ravines.</p> <p>The plaintiff contended that No. 1, the ravine furthest from the Sowash property, was the one intended in the conveyance of 1853, and that defendants ought therefore to pay $140 per acre for the coal, between that ravine and the So-wash property.</p> <p>The defendants, on the other hand claimed that No. 2 was intended, and that they were bound to pay only $70 per acre for the coal between the two ravines.</p> <p>In order to show the amount of coal actually mined by the defendants, the plaintiff called one F. Z. Sehellenberg, superintendent of the defendant company; and on the direct examination the witness was asked only as to this fact. But on the cross-examination the defendants asked the witness: First. “ Where is ravine No. 2 that you claim is the division line between these two values of coal; state where it is located and whether it is a well-marked ravine on the ground ?” Objected to by plaintiff. Objection overruled and evidence admitted. Exception. (First assignment of error.) Second. “ You have stated the amount of coal you took out; state whether or not it had been paid for up to May 17th 1881?”</p> <p>Answer. “The amount of coal that had been taken out from 1874 up to May 17th 1881, from my own knowledge I can say was paid for.” Objection by plaintiff. Objection overruled and evidence admitted. Exception. (Second assignment of error.)</p> <p>Plaintiff -then called one Mrs. Logan, who had attended to plaintiff’s business since 1870, and she testified that from 1874 to July 1878 defendant had paid plaintiff but $500 per annum. -And that since July 1878, up to the date of suit brought, defendant had paid plaintiff but $250 per annum leaving a balance, as was claimed, of over $1,800 dire and unpaid to plaintiff for coal mined by defendant up to the date of suit brought.</p> <p>On motion of the defendants, the court granted a compulsory non-suit for the following reasons :</p> <p>“ 1st. Because plaintiff, having proved that her action is' founded upon an indebtedness arising from the mining, by defendant, of the coal of plaintiff, has also proved that "no right of action exists in her, her own witness, Mr. Schellenberg, liaving testified that all the coal so mined has been paid for in full, and that he had receipts for the same.</p> <p>“ 2d.' The evidence on the part of plaintiff clearly exhibits that there is on the ground a well-marked ravine, east of the Sowash property, which, with the Sowash line, bounds and cuts off a part of this coal, which has been paid for at $140 per acre. This being the fact, it now becomes the duty of the court to place a construction upon the agreement, and to declare as matter of law, that it is not any longer ambiguous ; that this ravine No. 2 is the one intended by the parties in the agreement, and that plaintiff has therefore no cause of action.”</p> <p>A motion by the plaintiff to take off the non-suit was refused by the court, Huntbk, P. J\, delivering the opinion which was, inter alia, as follows :</p> <p>“ After a patient investigation we are satisfied that we committed no error in entering non-suit. Eroni the plaintiff’s own showing, there was no disputed question of fact,.the defendants admitting all that plaintiff had shown, and the case therefore turned wholly on the construction of the contract. There was no dispute as to the fact that there were two well-defined ravines, and to the mind of the court, No. 2 filled the description in the agreement. The plaintiff lierself showed that the coal up to this ravine had been paid for at the rate of $140 per acre. There was no evidence, aliunde, as to what ravine was intended by the parties, except that of the comparative value of the coal, but that could not control well-defined natural marks on the land. The defendants, as we have said, admitted all the plaintiff proved, what then was there for the jury? Was it not purely a question of the construction of the written ■contract? The “ravine, etc.” — what was meant by this, under the plaintiff’s own showing? Was not this for the court ■under the facts — the undisputed facts ?”</p> <p>Thereupon the plaintiff took this writ, assigning for error the admission of Sehellenberg’s testimony on cross-examination ■as above noted ; and the action of the court in granting a compulsory non-suit, and refusing to take off the same. •</p>

<p>1. In creating a sole and separate use by will, the will speaks from the date of its execution; if the devisee is neither married nor.in contemplation of marriage at that time it is beyond the power of the testator to create the use. The fact that the devisee was a married woman at the time of the testator’s death will not render that valid which was before invalid.</p> <p>2. The Act of June 4th 1879, § 1 (P. L. 88), which provides: “that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will,” affects only the property devised; it does not create a disposing power in the testator just before his death which he did not possess when he executed his will.</p>

211. Indictment of Charles Swan and F. E. Lynch for burglary and larceny. Plea, not guilty. Upon the trial, before Reale, P. J., the following facts appeared : On the night of September 13th 1882, the store of H. Bush & Son, in Kittanning township, was broken into and the contents of the safe were carried away. About the same time the house of Franklin Reynolds, in the same township, was robbed.

<p>Error to the Court of Common Pleas of Lcmorenee county: Of October and November Term 1883, No. 114.</p> <p>Ejectment, by Elizabeth Clark against Joseph Zuver and Nancy Zuver, his wife, to recover possession of lot No. 15, in the borough of New Wilmington, Lawrence county. Plea, not guilty.</p> <p>On the trial, it was admitted that title to the premises in dispute was in D. E. McCready, prior to 1855. At that time Joseph Zuver, residing in New Wilmington, being involved in business, agreed with McCready to exchange Ins property for the premises in dispute, which was valued at $700, with $1,250 additional in money, with the agreement that so much of this sum as was necessary should be applied by McCready, to the judgments entered against Zuver at the date of their deeds. The parties exchanged deeds on March 30th 1857, at which time the record liens amounted to $891.71. McCready paid these and gave his note for the balance, $358.29 in favor of Nancy Zuver. The deed for the premises in dispute was also made and delivered to her. Samuel Zuver, a brother of Joseph Zuver, was present at. the execution of both deeds, and was a subscribing witness. It appeared also that the agreement for the exchange of properties was made upon his recommendation ; though there was no direct evidence that he knew the deed was to be made to Fancy Zuver. In addition to the judgments against Joseph Zuver, he also owed two notes, amounting to $250; and some other debts. Samuel Zuver was surety on these notes. On March 30th 1857, the date of the execution of the deeds, Joseph and Fancy Zuver executed and delivered to Samuel Zuver, their bond and warrant of attorney in the sum of $250, conditioned to indemnify Samuel Zuver against the payment of these notes, on which he was surety. The signature of Fancy Zuver to this bond and warrant was denied. Samuel Zuver, in the absence of Joseph Zuver from the state, sold Joseph’s personal property, took notes from the purchasers, and receipted to Joseph for $159, to apply on the notes. On January 19th 1858, Samuel Zuver entered judgment on his bond, and issued a fi. fa. under which the sheriff sold the property in dispute to him, the proceeds of the sale being applied on his own judgment. There was indorsed on this fi. fa. a waiver of inquisition, signed by Joseph and Fancy Zuver, dated Fovember 4th 1858. Samuel Zuver took possession of the premises and afterward conveyed them to one Elliott, by a deed of general warranty. Elliott afterwards by a like deed conveyed to Elizabeth Clark the plaintiff in the court below. Joseph Zuver and family moved from the state in 1859, and returned in 1880 or 1881, when he took possession of the premises, which were then vacant. Samuel Zuver died before the suit was brought and Joseph Zuver died before the trial.</p> <p>Plaintiff having offered in evidence the fi. fa., with indorsement of waiver of inquisition, the defendant objected, on the ground that the waiver was a forgery apparent on its face, the Zuver’s names being wrongly spelled, and that Joseph Zuver could not waive inquisition as against his wife, the judgment being void as to her.</p> <p>The Oouet. “ The court decide to consider that Fancy Zuver was a married woman, and the wife of Joseph Zuver ; that the bond on which judgment was entered and property sold, and all proceedings as to her were void; and to receive the evidence offered so as to affect title in Joseph Zuver. Further, that Fancy Zuver cannot take advantage of, or set up the want of inquisition, and the sale on the fi. fa.” Objection sustained. Exception. (First assignment of error.)</p> <p>The plaintiff then offered George E. Zuver as a witness generally. Objected to by defendant “as incompetent to testify to matters prior to the death of Joseph Zuver, he being a son of Samuel Zuver, who conveyed the property in suit, by deed of general warranty, and under which defendant claims title, said George E. Zuver being now the owner and occupier of lands descended or devised to him from his father, and which his father owned at the time of making such deed of general warranty.” Objection sustained. (Third assignment of error.)</p> <p>[The objection to this offer rvas so stated in the assignment of error, but it was also stated that the objection was really to the witness testifying as to any matter prior to the death of Samuel Zuver.]</p> <p>The defendant offered to prove by Ella Henderson that Joseph Zuver was absent from home during the fall of 1858, at the time the waiver of inquisition purports to be signed and up to, and after the time of sale by the sheriff of the property in dispute ; and that the signature to the waiver of inquisition is not the signature of Joseph Zuver, for the purpose of showing that there was no waiver of inquisition. Objected to- by plaintiff. Objection sustained. Exception. (Second assignment of error.)</p> <p>Defendant presented these points:</p> <p>1. That if Samuel Zuver approved, recommended or acquiesced in the conveyance of the property in dispute to Haney Zuver, at, or before the date thereof, the same was not fraudulent as to him, and plaintiff cannot recover.</p> <p>Answer. Affirmed if there were no other creditors, and this one was provided for. Exception. (Fourth assignment of error.)</p> <p>2. That if Joseph Zuver paid Samuel Zuver any moneys at any time, and placed personal property in his hands for sale, sufficient to pay the debts secured % the judgment, upon which the premises in dispute were sold, plaintiff cannot recover.</p> <p>Answer. Affirmed if this was all the debts, and they were secured or provided for. Exception. (Fifth assignment of error.)</p> <p>Verdict and judgment for the plaintiff. Whereupon the defendant Haney Zuver took this writ, assigning for error the rulings of the court upon the offers of testimony, and the answers to her points as above noted.</p>

<p>Appeal' from. tbe Orphans’ Court of Armstrong county : Of October and November Term' 1883,-Mo. 126. ■</p> <p>Appeal by A. F. Linton and P. R. E. Elwina Linton, bis wife, from a decree of said 'court dismissing their appeal from the decree of the register, admitting to probate the will of Jane D. Finlay, deceased, and refusing their petition for an issue devisavit vel non.</p> <p>From the testimony taken by the register, and submitted to the court, the following facts appeared : Mrs. Jane D. Fin-lay died December 80th 1876, leaving an estate worth over $50,000, and leaving to survive her, her husband, John B. .Finlay, an only child, P. R. E. Elwina, then aboiit fourteen years of age (now the wife of A. F. Linton), and her father, James D. Brown. Letters of administration were granted upon her estate, and subsequently in January 1881, in pursuance of a citation issued by the register, the following testamentary paper in question was produced by John Gilpin, and offered for probate:</p> <p>I, JaneB. Finlay, of Kittanning borough, in Armstrong county, state of Pennsylvania, do make and publish this my last will and testament.(hereby revoking any and all prior wills by me at any time heretofore made) in manner following, to wdt: As to all and singular the property, whether real, mixed, or personal, or cboses in action of whatsoever kind and wdiereevor situated, that I may own or be entitled at the time of my death, I do give, devise, and bequéath the same unto Grier O. Orr, and his heirs, to have and to hold the same for the uses'and trusts following, to wit: In trust to receive and collect the rents, issues, profits and proceeds of said property, and from time to time, until my daughter Phoebe R. E. Elwina Finlay, shall attain the age of twenty-one years, to add such rents, issues, profits and proceeds to the principal sum or property; and after my said daughter shall have attained the age of twenty-one years, then in trust to receive and collect the rents, issues, pi’ofits and proceeds of said property and its accumulations, and to pay over to my said daughter the said rents,' issues, profits and proceeds, in semi-annual installments, for her sole and separate use during her natural life, and after her death, then to hold the said property in trust for her children, who may survive her, or their issue; and in case my said daughter shall die without leaving lawful issue living at the time . of her death, then in trust to invest said property and accumulations in such memorial as said trustee or his successor shall determine will best perpetuate the name and memory of my said daughter.</p> <p>Item. I do hereby nominate, constitute and appoint my friends, Grier C. Orr, Esq., and John Gilpin, of the borough aforesaid, the executors of this my last will and testament.</p> <p>Lastly, that I do recommend that the trustee hereinbefore named shall, when he sees proper, and deems it for the interest of my said daughter, sell or dispose of any portions of the property herein devised or bequeathed to him, 'and shall hold the proceeds of such sales in lieu of the portions so sold ; and I do hereby authorize and empower the said Grier O. Orr, 'Esq., to sell and dispose of any and all property that I may own ' or be entitled to at the time of my death, to such person or ' persons, in such manner, and for such prices as he shall deem meet; and I do order and direct that the purchaser or pur- ’ chasers from said Grier C. Orr, Esq., shall be in no wise liable or bound to see to the proper application of the purchase money ! which they may pass to said Grier C. Orr, Esq.; and further, ■upon receipt of the purchase money said Grier G. Orr shall have full power and authority to make, execute, and deliver to the purchasers, deeds and conveyances, in fee simple or otherwise, for any of said property which he may see fit to sell.</p> <p>' In witness whereof, 1, Jane B. Einley, have to this my last will and testament, written upon two pages of paper, hereto set my hand and seal, this eleventh day of December, A.D., eighteen hundred and seventy-five. • Jane B. Einlay.</p> <p>Signed, sealed, published and declared by Jane B. Einlay, the testratrix, as and for her last will and testament, in the presence of us, who have at her request signed our names as witnesses thereto, in the presence of said testatrix and of each other. James Kino.</p> <p>T. H. Allison.</p> <p>T. M. Allison.</p> <p>Testimony was offered explanatory of the delay in presenting the will for probate.</p> <p>It was shown that the execution of the will took place on December 13th 1875, just previous to the performance of a dangerous surgical operation upon the testatrix, viz., the removal of cancer in the breast.</p> <p>Dr. James King, one of the subscribing witnesses to the will, being dead, his signature was proved.</p> <p>Dr. T. II. Allison, another of the subscribing witnesses, testified, inter alia, as follows :</p> <p>Q. Did you see Jane B. Einlay sign it (the will)?</p> <p>A. blow, listen closely. On the 13th day of December, 1875, in a room of the house in which Mrs. Einlay was living, she pulled out a paper from some place about her person, and said : “ Gentlemen, I want yon, or I wish you, to see me sign this, or witness this,” or some words equivalent to that. I don’t remember the words exactly. She went to a chair over at the side of the room, and sat down, and took this paper that she had brought forth, and she took a pen and ink in her hand, and I saw her making motions as though she were writing. Dr. King went forward first; you saw his writing here. . . .</p> <p>I had been at the house before. When I came in, just before the operation, Mrs. Einlay and her father were quarrelling. It appeared to me that they were jangling something about a deed connected with a house. I had gone from there into the front room. She followed in, and I suppose others. I don’t know who all. About this time she jerked this paper from out of her bosom, and I think said, “I will do it;” said that to lior lather.</p> <p>Q. Just at that point what washer appearance as to excitement or calmness?</p> <p>A. She was very much excited — intensely excited.</p> <p>Q. Was that before you signed this paper that she made use of that language ?</p> <p>A. Ycs, sir.</p> <p>Q. Now, as near as you can, if you can estimate it, how long before you signed that paper ?</p> <p>A. A very short time — a very few minutes.</p> <p>Q. Between the time that she made that reply to her father, and the time that you signed the paper, had there been any change in lier condition as to excitability ?</p> <p>A. I think not.</p> <p>Q. No change in her condition ?</p> <p>A. I think not.</p> <p>Q. How long, Doctor, after yon signed that paper- did you perform the operation ?</p> <p>A. Just as soon as we got everything ready.</p> <p>Q. Within an hour ?</p> <p>A. I think so. . . .</p> <p>Q. What was her physical and mental condition as to excitement?</p> <p>A. Her physical condition was bad. Her mental condition was very much excited, both before and at the time of the operation.</p> <p>Q. At the time you were asked to and did sign the paper, Doctor, did any person read any portion of that paper in your presence or hearing?</p> <p>A. They did not.</p> <p>Q. Was it named in your presence or hearing as a will ?</p> <p>A. It was not.</p> <p>Q. Did Mrs. Jane B. Finlay at any time ask you to sign it as her will ?</p> <p>A. She asked us as I have told you; her language was, “Gentlemen, I want you to witness this,” or words equivalent to that anyway.</p> <p>Q. The point in my question is, did she ask you to witness it as a will ? ■ '</p> <p>A. That was the full amount of her language.</p> <p>Q. A word of the will was not read ?</p> <p>A. No, sir ; nothing said about a will. . . .</p> <p>Q. At the time yon signed that paper was Mrs. Jane E. Einlay of sound mind, memory, and understanding?</p> <p>A. What do you mean by the words sound mind ?</p> <p>Q. Well, the legal construction is : that is, that she was of sufficient soundness of mind, memory, and understanding to make a valid will. You understand the meaning of sound mind, memory, and understanding just as well as I do, and a little better. You take your own view on that?</p> <p>A. To answer that, yes or no, I don’t like that. What is it you want of me ?</p> <p>Q. Sound applies to the words mind, memory, and understanding.</p> <p>A. I don’t like that kind of a question, the wa_y that you put it in. I don’t like it. I don’t pretend to intimate at all that Mrs. Finlay was clear insane. She was very much excited, and her mind had been wrought up by her diseased condition to a very great extent, and the trouble with her father had got her into a still greater state of excitement that day. She had very great fears in regard to the disease; she had very great fears in regard to being placed under an anaesthetic; and she had great fears in regard to the operation, from the fact of her mother having died under the same circumstances ; these were her fears. ... As I said before, I saw Mrs. Finlay sit down and take a pen, and went through the motions, I presume, of writing. Dr. King went forward, and, I presume, I suplióse signed this ; then, I presume, I went forward and signed, as it is my name here.</p> <p>Q. Did she specifically acknowledge in your presence, Doctor, either of those signatures ?</p> <p>A. She said nothing about them.</p> <p>Q. When she had the pen and ink and made this writing, was it on a chair or table ?</p> <p>A. She was writing on her knee. ...</p> <p>Q. From the 6th of December, 1875, to the 13 of December, 1875, Mrs. Finlay discussed with you in a reasonable, sensible manner, the proposed operation and the probabilities of it, did she ?</p> <p>A. Well, some of it was sensible and some of it was not extremely sensible.</p> <p>Q. Did she seem to appreciate the nature of the disease ?</p> <p>A. Yes, she was appreciating it wonderfully well.</p> <p>Dr. T. M. Allison, the other subscribing witness, testified, inter alia, as follows :</p> <p>Q. After the communication of the result of your consultation there, what was her condition as to excitement and mental condition.</p> <p>A. She was very much excited.</p> <p>Q. State now whether she asked you to sign any paper and just as near as you can what she said about it.</p> <p>A. She produced a paper of some kind, I don’t know what, from about her person somewhere, from the bosom of her dress and asked us all to come. She said, u Gentlemen, 1 want you to witness my signing this paper,” or witness her signature, I believe was the words.</p> <p>Q. Did she sign in your presence?</p> <p>A. Well, I suppose she did. She took a pen in her hand. She had the instrument on her knee, on a writing stand or portfolio, or something of that kind ; took a pen in her hand and run over it. I suppose she was writing her name; I was not very clear.</p> <p>Q. You could not see the actual signature ?</p> <p>A. No, sir, I did not see her make the letters to form the name.</p> <p>Q. You saw her make motions as though she was writing. ,</p> <p>A. Yes, sir. ...</p> <p>Q. In medical parlance, what would you call her condition at the time ? Was it in the nature of hysteria, or was it something else ?</p> <p>A. It would be pretty hard to give it a name. I have spoken of her being in a great state of nervous excitement; wonderfully wrought up ; acted somewhat strangely ; talked a great deal, and at random sometimes. It would bear as closely on hysteria as anything I could name, part of it. ’ ¡</p> <p>R. J. Earns testified, under a commission to Socorro, New Mexico, as follows:— . 1</p> <p>Fourth. What do you know about Mrs. Finlay, having a form of will written about the time of, and before said surgical operation was performed ? Do you know whom they employed to write said form of will and if so state who it was ?</p> <p>A. A few days prior to the said surgical operation having been performed, while she was in a very poor state of health, she directed me to go and ask Mr. John Gilpin, a practicing attorney of Eittanning, to call upon her. I gave him the message, that is, I gave Mr. John Gilpin the message, and he called upon her, and I understood it was for that purpose, of drawing up a form of will for her.</p> <p>Fifth. What did she say of the form of will that was prepared for her when she received it? What objections, if any, did she make, and what reply did the attorney who wrote the will make to such objections ?</p> <p>A. One or two days after Mr. Gilpin had called upon her as aforesaid, and before the surgical operation had been performed, I took up a paper from Mrs. Finlay’s table purporting to be a will, written in the handwriting of said Mr. Gilpin, but without any signature whatever. Mrs. Finlay told me that was the paper Mr. Gilpin had prepared for her to sign, and added, “ I am so far gone I really don’t know what is in it. I have left it all to Mr. Gilpin, believing he will act honestly in the matter,” or words to that effect, which words she repeated several times in my hearing, and even after said surgical operation was performed, after she began to get better, said that she really did not know what was in said will.</p> <p>Mrs. Mary Henry tessified in answer to interrogatories under a commission to Port Huron, Michigan, as follows:—</p> <p>4. As to a paper purporting to be a will written by John Gilpin, Esq., for the said Mrs. Jane B. Finlay, I did know of said paper. Mrs. Finlay said to me when I first saw her after said operation, “ Why did you not come sooner and I would have given you something in my will?” I said, “ Is it too late now?” She said, “Yes; I have given everything away.” Knew of no changes she wanted made.</p> <p>fí. Was with Mrs. Finlay some six or seven months after the operation. All she said about her will was that she had made' it at the time or just before the operation was performed. This she told me when I first saw her after the operation, and she never spoke of it again.</p> <p>E. J. Karns, Mrs. Henry, and Sallie E. Brown testified as to angry disputes and quarrels between Mrs. Finlay and her father prior to and about the date of the alleged execution of the will.</p> <p>The register revoked the letters of administration, and admitted the will to probate, from which decision A. F. Linton and wife appealed to the Orphans’ Court, and also presented a petition for a precept for an issue to the Common Pleas, alleging want of testamentary capacity, undue influence, and that the proofs before the register were not sufficient impróbate.</p> <p>The court, in an opinion by Breton, J., refused the petition for an issue and dismissed the appeal; whereupon said A. F. Linton and P. E. E. Elwina, his wife, took this appeal, assigning for error the said action of the court.</p>

143. Ejectment, by Nathan Book against Mary Book, Andrew Wells (tenant), Charles Book, John Book, Dellie Book, Essie Book, minors, by John S. Conner, guardian, for a tract of land in Shenango township, containing 50 A. 62 P. Plea, not guilty. Ón the trial, both parties claimed through Jacob Book, in whom title was admitted to have been vested in fee simple on and prior to December 22d 1875.

<p>Error to the Court of Common Pleas of Mercer county: Of October and November Term. 1883, No. 13£.</p> <p>This was an action, originally brought before a justice of the peace, by the Mercer County Mutual Eire Insurance Company, against James A. Stranahan to recover the amount of two assessments for losses and expenses, imposed by said plaintiff upon two policies of insurance held by the defendant. Pleas, nil debet, and the statute of limitations.</p> <p>On the trial, before McDekmitt, P. J., the defendant contended that by virtue of an agreement made by him with the president of the company plaintiff and one of its directors, prior to the imposition of the assessments, he was released from all future liability upon his policies, which were surrendered for cancellation ; that the consideration of said agreement was the reduction in amount of a loss that was due defendant from plaintiff. The plaintiff denied as matter of fact the existence of such an agreement, and this question of fact was submitted to the jury. The defendant also contended, as matter of law, that the president and director had no power to make such an agreement. The material provisions of the company’s charter with respect to the power of the president and directors are as follows:</p> <p>Sec. IY. The affairs of this corporation shall be managed by a board of directors consisting of twelve members,- to be elected and chosen in accordance with sections four and five of Act of 2nd April 1S56, who shall have full power to appoint other officers, and employ such agents, clerks and attorneys, as may be found necessary for the transaction of the business of said company ; and shall determine the rates of insurance, the sum to be insured, and the sum to be deposited for any insurance; and to make, execute and perfect such and so many bargains, policies and other instruments, as shall or may be necessary.</p> <p>Sec. III. The president shall preside at all meetings of the board of directors or company, sign all policies of insurance, give his signature to all orders on the treasurer, and shall have full power to examine, adjust and settle, in all cases of loss not exceeding one hundred dollars. In all cases exceeding this amount, he may call to his assistance one or more directors, as lie may think necessary, and shall call special meetings of the board of directors when necessary, and shall have a general supervision over the affairs of the company.</p> <p>The minutes of the directors showed that a committee, consisting of the president, the director in question, and one other, was appointed to “adjust the (plaintiff’s) loss.” The other material facts of the case are fully recited in the opinion of this court.</p> <p>The plaintiff presented the following point: That neither Seth Hoagland, president of the plaintiff company, nor the committee appointed to adjust the defendant’s loss in 1874, had any authority to make an agreement that either of defendant’s policies of insurance should not be assessed for losses and expenses the same as other policies belonging to the same class, and so far as any defence based Upon sncb an agreement is concerned the plaintiff is entitled to recover.</p> <p>Answer. Answered negatively as explained in the general charge.</p> <p>The court charged the jury, inter alia, that“ the committee, composed of the president and one or more directors, had the power to make a binding settlement such as the defendant sets up.”</p> <p>Yerdict for the defendant and judgment thereon. The plaintiff took this writ of error, assigning for error the refusal of his point and the said instruction of the court.</p>

123. This was an appeal by Joseph W. Ilalderman, from a decree discharging a rule, granted upon his petition, to show cause why the appointment of C. Snyder as committee in lunacy of the estate of the petitioner, and all acts performed by him as such committee, should not be set aside.

129. The record showed the following facts: On April 5th 1880, certain citizens of Ottercreek township presented a petition to the court of Quarter Sessions of Mercer county, for the vacation and supply of a public road.

150. Assumpsit, by John McElevey, Administrator of Robert McElevey, deceased, against David Sankey, to recover tbe amount of a promissory note given by said Sankey to Robert McElevey on April 15tb 1848, for $1545, with interest thereon. Pleas, non assumpsit, payment with leave, etc., and tbe statuté of limitations.

73. ’ This case arose upon a petition of the Pittsburgh, Virginia & Charleston E. E. Co., filed May 13th 1881, praying for appointment of viewers to assess damages occasioned, by its entering on and constructing its railroad through land belonging to Susanna Gilmore, in Carroll township, Washington county. The viewers so appointed awarded $550 damages, from which award an appeal was taken.

<p>1. The satisfaction of a judgment is prima facie evidence of payment, or of a gift; ils legal effect is the extinguishment of the debt.</p> <p>2. A. confessed judgment to a trustee for Ills wife to secure a just debt due to her. Shortly afterwards, when A. was in financial difficulty, and in custody under a warrant of arrest obtained by anol her creditor, he obtained his discharge by giving bond to have the judgment against him satisfied. This was done and iris wife assented in writing to the entry of satisfaction. There was no evidence of payment of the debt, or of fraud or duress in obtaining the satisfaction of the judgment. Sixteen years after, in settling A.’s account as administrator of his wife’s estate, the parties in interest endeavored to surcharge A. with the amount of said judgment. Held, that the transaction was presumptively a gift by the wife to the husband, and there was no burden ou him to prove consideration or bona fides.</p>

30. Ejectment, by Janies Craighead et al., doing business as The Farmers’ Deposit Company, against J. P. Weaver and Alexander Gaston, for a tract of land in North Strabane township, Washington county. Pleanot guilty. On the trial, before Hart, P. J., the following facts appeared: On and prior to January 27th 1876, the title to the premises in dispute was vested in J. P. Weaver.

83 and 84. These were two indictments against Samuel Ruth, one for forgery and the other for embezzlement and larceny .as employee. The record in No. 83 showed the following : March 14th 1883, grand jury returns true bill. March 23rd 1883. Petition of defendant, for entry of a stet on all further proceedings under the indictments against him. And now March 26th 1883, the court enters a stet upon above indictment, on payment of costs by defendant. Geo.

108. Ejectment, by Henry Eitner against George W. Moninger, for a house and lot situate in Washington, Pa. Plea, not guilty. On the trial, title to the premises in dispute was admitted in Martha Pool, on July 30th i860, who by deed of that date conveyed the same to Ellen Eitner, wife of Henry Eitner, the plaiutiff, the marriage having taken place in 1834.

161. Debt, by Abram Martin against Oakland township, Dennis O’Donnell and James Thornberg, supervisors, to recover a sum of money alleged to be due plaintiff on a contract with the township supervisors, for the construction of a bridge.

79. Case, by Matthew Taylor against the Pittsburgh Southern Railway Company to recover damages caused by the alleged negligence of the defendant company, in allowing its cars, which had run off the track at a road crossing, to remain in such á position that plaintiff’s horse took fright at them and ran away.

Error do the Court of Common Pleas of Butler county Of October and November Term 1883, No. 186. Feigned issue upon the opening of judgment on a bond and warrant of attorney, wherein the overseers of the poor of Worth township were plaintiffs, and Samuel Wimer was defendant, to determine the question of defendant’s liability.

148. This was an appeal by John Y. LeMoyne, from a decree sustaining a demurrer to a petition filed by him for a review or rehearing of the adjudication upon the account of Julius Le Moyne and Y. Harding, executors of the will of Dr. F. J. Le Moyne, and dismissing his petition.

187. Trover and conversion, by J. Y. Foster against John Berg, Sr., and John Berg, Jr., doing business as John Berg & Co. On the trial, before Bredin, J., the following facts appeared : A. B. White applied to the defendants for a loan of money, $10,000 or $15,000, which the defendants were willing to loan upon satisfactory security.

110. This was an action of assumpsit, by Samuel L. Riddle against Josiah M. Thompson, Solomon R. Thompson, Allen Wilson and John C. Martin. Allen Wilson was not served ; the other defendants pleaded non assumpsit, and special matter in affidavits filed.

<p>1. The 7th section of the Act of April 22d 1856 (P. L. 532), providing that the probate of a will devising veal estate shall be conclusive as to such realty unless appealed from within five years, affects the title to the land, lays down a rule of evidence, and is not merely a limitation of the remedy.</p> <p>2. The probate of a will by the Register of Wills, is a judicial act which cannot be impeached collaterally, but must be contested by “ caveat and action at law duly pursued.”</p> <p>3. Unless the probate of a will devising real estate is contested within five years, and as directed by the Act of April 22d 1856, it becomes conclusive upon all persons, whether infants, femes covert or non compotes mentis or not.</p> <p>4. The probate of a will by the Register of Wills is a proceeding in rem as well as in personam. All persons interested must be regarded as • parties or privies, and are concluded by his decree. After five years, the subsequent production and probate of a will later in date does not affect the conclusiveness of the decree on the will first proved.</p>

173. Indictment of John Smith, for perjury, No. 31, December Sessions 1882.

Appeals from the Orphans’ Court of Indiana county: Of October Term 1883, Ho. 213. 1. Held: that the Act of May 6th 1811, § 2 (Purd. Dig. 1176) did not apply, that the legacy to her lapsed and became part of the residuary fund. The principal contest arose upon the fourth clause of the testator’s will.

Eeeoe to the Court of Common Pleas of Indiana county: Of October and November Term 1883, No. 112. Assumpsit, brought February 3rd 1880, by John Montgomery against William Cunningham, to recover a sum of money alleged to have been paid by plaintiff as surety for defendant on a note which matured in 1851, and also a sum alleged to have been loaned by plaintiff to defendant, in 1854.

<p>Appeals from the Court of Common Pleas No. 1 of Allegheny county: Of October Term 1883, Nos. 5 and 6.</p> <p>Appeals by F. D. Geist, assignee for the benefit of creditors of Adolph Oberhelman, and J. D. Scliroeder, one of the sureties on the said assignee’s bond, from a decree of said court, distributing the assigned estate.</p> <p>Before the Auditor (T. EL Davis, Esquire), appointed to pass upon exceptions to the assignee’s account, and to report distribution, the following facts appeared : On September 10th 1874 Adolph Oberhelman executed a deed of general assignment for the benefit of his creditors, to F. D. Geist. Among the personal assets, which came into the assignee’s hands, was a claim of $5,311.40, designated in the inventory as “a claim against the city of Pittsburgh on account of contract building bridge, assigned to divers parties as collateral security.” ‘Prior to the execution of the deed of general assignment Oberhelman had made three separate assignments, of as many parts of this claim, to certain of his creditors. These assignments were in form as follows: “For value received, I, Adolph Oberhelman, do hereby sell, transfer and assign to S. A. Lang, Y. P. and business manager of the Franklin Savings Fund and Safe Deposit Company, twelve hundred dollars of my claim against the city of Pittsburgh, for and on account of the sums due me by the said city for the building of the bridge across Saw-Mill ¿un.”</p> <p>There was no dispute as to the fact of the assignments, or as to the further fact that they had been given into the hands of the then city controller, and by him turned over to his successor in office.</p> <p>Geist, as assignee, collected the entire claim from the city, by an action at law ; and appropriated the money to the purposes of his trust, disregarding the said assignments of parts thereof. This action on the part of the assignee was excepted to, upon the filing of his account, and formed the principal contention before the Auditor, who ruled that the said three partial assignments by Oberhelman were not binding upon his general assignee.</p> <p>To this ruling exceptions were filed by the claimants under the partial assignments, which exceptions the court sustained, after argument, and entered a decree, directing the Auditor to distribute the proceeds of the claim against the city, among the three assignees thereof, to the extent of the sums demanded by their assignments. Thereupon Geist, the general assignee, and Scliroeder, one of his sureties, took these appeals, assigning for error, the decree of the court.</p>

<p>1. The acknowledgment of a debt necessary to remove the bar of the statute of limitations must be clear, distinct and unequivocal, not only as to the existence of a debt, but of the particular debt to which it is sought to be applied.</p> <p>2. The admissions of a debtor that lie owed the debt and wished he could pay it, coupled with the expression of regret that he could not, but with no promise to pay, are not sufficient to toll the statute of limitations.</p> <p>3. In an action upon a promissory note, barred by the statute of limitations, the plaintiff testified to a direct promise to pay within the six years. The defendant positively denied that he had made such promise, but bad acknowledged to the plaintiff that he owed the debt, wished he could pay it and was sorry he could not. There was no other witness, and the court directed a verdict for the plaintiff. Held, that this was error, and that the case should have gone to the jury to find what language was used, and whether it fulfilled the requirements of the law.</p>

28. Appeal of Martha Hulton, executrix of Jonathan Hulton, deceased, from a decree of said court, surcharging her, in her account as executrix, with certain sums used by her out of the estate of tbe decedent for tbe payment of his debts. At tbe audit of her account as executrix the'following facts appeared : Jonathan Ilulton died, testate, August 10th 1876.

<p>Error to the Court of Common Pleas'No. 2 of Allegheny eounly: Of October atid November Term 1883, No. 36.</p> <p>Assumpsit, by Alonzo W. Latlirop against C. T. Ihmsen and Domenec Ihmsen on a promissory note for $264.12 signed “Ihmsen & Co.” The suit was originally tried before an alderman, who entered judgment for the plaintiff against C. T. Ihmsen but in favor of Domenec Ihmsen. On appeal by Lathrop, the cause was removed into the Common Pleas.</p> <p>On the trial, before Kirkpatrick, J., the following facts appeared: The firm of Ihmsen & Co. was organized in Pittsburgh January 1st 1881 for the purpose of manufacturing glass* It consisted of Christian T. Ihmsen and Domenec O. Ihmsen. and succeeded a firm consisting of the said Christian T. Ihmsen Domenec O. Ihmsen, J. W. Lake, and C. Ihmsen, Jr. Due notice of the formation of the new firm and the names of its members was given to the public by the usual advertisement in two newspapers of the city of Pittsburgh and by circulars addressed to the customers of the firm which it succeeded. In the articles of copartnership, Domenec Ihmsen, the father of Domenec O. Ihmsen, was duly constituted the general manager and superintendent of the firm’s business, with sole power and authority to make all contracts and sign the firm name to all commercial paper. In February 1881, the said Domenec Ihmsen wrote and signed the firm name to a letter to J. S. Reed & Co., inviting proposals for furnishing boxes, in which to pack glass. Upon the receipt of this letter, W. W. Reed, representing. the latter firm, went over to see Domenec Ihmsen, who was not in ; he saw Domenec O. Ihmsen, however, who told him that die (Domenec O. Ihmsen) “ could do nothing ;” but that Reed “ would have to see his father,” the defendant. Reed further testified : “ The next day I went over'and saw Mr. Domenec Ihmsen, and he told me that he wanted to make a contract for these boxes with us, and he gave me a price list that he had in a pass-book, and he told me if we made boxes after that description and took ninety days’ paper for them we could make them ; I told Mr. D. Ihmsen I would consult my father; I did so, and then I asked Mr. Lathrop if he would take the paper, and Mr. Lathrop went over to see if they wouldn’t give sixty days’ paper ; Mr. Lathrop and I went over, and wé made this contract.”</p> <p>Upon the conclusion of the contract, it was reduced to writing and Domenec Ihmsen signed the firm name thereto; as a consideration therefor, he further wrote and signed the firm name to a promissory note, upon which this suit was brought by Alonzo W. Lathrop, who had discounted it. ,</p> <p>Evidence was admitted on behalf of the plaintiff that Domenec Ihmsen had admitted on the trial before the alderman that he had seen a copy of the Pittsburgh Directory for 1880-1 in which he was named as “ of Ihmsen & Co.” and had made no effort to correct the error, if any. The plaintiff further offered in evidence the directory in question and also that for 1881-2 for the purpose of showing that the defendant permitted and continued to permit his name to be held out to the world as a member of said firm of Ihmsen & Co.; objected to, as it had not been shown that the entries were made with the consent or by the authority of Domenec Ihmsen. Objection overruled and evidence admitted. Exceptions. (Second and third assignments of error.) The plaintiff contended that under these facts Domenec Ihmsen was either a member of the firm of Ihmsen & Co., or if not a member, had so held himself out to the world as such, as to .estop him from denying his liability on said note.</p> <p>Domenec Ihmsen testified that he was not a member of said firm, in which he was corroborated by other witnesses ; that he liad given the fullest information to all who inquired as to his relations therewith; that his first knowledge of the entry in the directory for 1880-81 was after its publication ; that when the agent came to collect the money for the directory, the witness refused to pay for it, unless the entry was corrected ; that the agent said it was too late to be changed then ; but that it would be altered in the issue for the next year ; that he saw the directory for 1881-2, and although some alteration had been made, it was still incorrect.</p> <p>The plaintiff submitted the following point:</p> <p>1. That if it be found from the evidence that the defendant, Domenec Ihmsen, by the name “Ihmsen & Co.,” signed letters to J. S. Reed & Son, which was sent to and received by them, that by the same name he signed a contract negotiated by himself with said Reed & Son for boxes, that for the price of boxes delivered under such contract,'he afterwards, by the same name, signed the note in suit and caused it to be delivered to the said Reed & Son, and there was nothing in his words or acts, or otherwise, to indicate to said Reed & Son that the name “ Ihmsen & Co.” did not embrace him, and that consequently, the said Reed & Son believed him to be a member of “ Ihmsen <& Co.,” and on such belief gave credit to him as such, for the debt sued for, the verdict should be for the plaintiff. Affirmed. (First assignment of error.)</p> <p>The court instructed the jury that if they found that Domenec Ihmsen was a member of the firm of Ihmsen & Co., or had so acted as to induce such a belief in Reed & Son, and if they found that Reed & Son were men of ordinary care and prudence, then they should find a verdict for the plaintiff ; aliter, for the defendant.</p> <p>Verdict for plaintiff for $2-68.27, and judgment thereon. The defendant took this writ of error, assigning as error, the admission of the directories in evidence, and the affirmation of plaintiff’s first point.</p>

13. This was an appeal by Robert W. Patterson from a decree dismissing his exceptions to the account of T. BT. Baird Patterson, trustee appointed by said court for the devisees under the will of Joseph Patterson, deceased, and reforming and restating said account.

1 of Allegheny county : Of October Term 1883, Wo. 15. This was an appeal by Sarah M. Bryant from a decree of the court of Common Pleas Wo. 1 of Allegheny county confirming the sheriff’s special return of his distribution of proceeds of sale of the real estate of Citarles Stoehr, arising out of the following facts.

2 of Allegheny county: Of October and November Terms 1883, No. 2. Assumpsit, by James Horner against Z. and J. Boyle, to recover the amount of a promissory note for $400. The summons issued September 12th 1882, returnable tlie first Monday of October (Oct. 2d) 1882.

2, of Allegheny eounty: Of October Term 1883, No. 9. Bill in equity filed February 10th 1878, by W. II. Held: however, that her claim was barred by the statute of limitations there in force.

<p>A testator provided by his will as follows: “Also I give to my daughter, Martha, all the remainder of my ground, except what is hereafter mentioned; that is, a lot bounded and described as follows (here followed a description). If I do not sell the above lot during my lifetime, then it must be divided into six equal lots, four on Railroad avenue and two on I street, to my heirs, as follows; Francis, Mary, James, Harriet, Alice and Elizabeth, .... Martha to have none of the above lots. If I sell the above lot, the money that is left to be equally divided among the six heirs.” He subsequently sold this lot, and took a mortgage thereon for the purchase money, and then executed the following codicil: “The money coming from the lot sold to Mrs. Reynolds (the lot in question), must be equally divided among all my heirs except Mrs. Elizabeth Bright, and her share shall go to Martha.” The testator died, leaving surviving him the said Francis, Mary, Harriet, Alice, Elizabeth, Martha and children of James:</p> <p>Held, that the amount collected from the said mortgage should be divided into six equal parts, to one of which the said Francis, Mary, Harriet, Alice, Martha and children of James should each be entitled. d.</p>

<p>Error to the Court of Common Pleas No. 1 of Allegheny comity: Of October and November Term 1883, No. 64.</p> <p>Debt upon a bond, by the Monongahela Building and Loan Association of Pittsburgh, against Robert Calhoun and George B. Sterritt. The plaintiff filed a copy of the bond and an affidavit of claim, averring damages. The defendant filed an affidavit of defence.</p> <p>The court granted, and subsequently made absolute a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence. The condition of the bond and plaintiff’s averments are fully set forth in the opinion of this court.</p> <p>' The defendant took this writ of error, assigning for error, that “ the court erred in not dismissing the rule as not within any Act of Assembly or rule of court requiring affidavit of defence,” and the entry of judgment as above.</p>

2 of Allegheny county : Of October Term 1883, No. 52. This was an action of scire facias sur mortgage by the Elizabeth Building and Loan Association, to the use of G. W. Lutes and E. S. Walker, assignees for benefit of creditors of said association, against Josiah P. Johnston, with notice to Allen Williams, terre-tenant. Pleas, payment, payment with leave, set off and special matter in affidavit of defence.

Appeal of the Western Pennsylvania Bailroad Company, and the Pennsylvania Bailroad Company, lessee, from a decree of the Court of Common Pleas No. 1, of Allegheny county: In Equity. Of October Term 1883, No. 56.

<p>1. In an action on the case for libel against the proprietors of a newspaper. it is no defence to the action that the article alleged to be libelous was written by an employs of the defendants, acting within the scope of his employment, and that the defendants first acquired knowledge thereof after publication. The defendants in such case are, in law, held to have committed the act through their agent, and cannot claim exemption from, any of the legal consequences flowing therefrom, whether the wrong resulted from mere negligence, or from willful, wantoa or reckless intent by the agent.</p> <p>2. In such an action, evidence is admissible on the part of the plaintiff of the facts and circumstances connected with the publication prior thereto, tending to show malice on the part of the employs who wrote the article, and other circumstances of aggravation tending to justify the imposition ou the defendants of punitive damages.</p> <p>8. The defendants may, under the plea of not guilty, prove, in mitigation of damages, any relevant facts prior or subsequent to the publication, which facts should be considered by the jury in connection with all the other evidence relating to damages.</p>

Appeal and Certiorari to the Court of Common Pleas! No. 2 of Allegheny cowity: Of October and November Term' 1883, No. 57. • This was an appeal and certiorari by James P. Brewer, in his own right and as executor of Ebenezer Brewer, deceased, from a decree of the said court, enjoining him from assigning or transferring a certain mortgage, and ordering him to enter satisfaction thereof upon the record. 'The decree was entered in accordance with the prayers of a bill in equity,…

<p>1. The Act of April 15th 1869 (P. L. 30), by its express terms does not apply to any action by or against an executor.</p> <p>2. In an action against an executor upon an instrument alleged to have been executed by his testator (prior to the Act of April 15th 1869), the execution of the paper cannot be proved by proof of the handwriting of a deceased subscribing witness, who was, at the time, a party interested therein. Such proof is incompetent at common law, and the case is not within the Act of 1809.</p>

1 of Allegheny county: Of October and November-Term 1883, No. 89. Ejectment, by the Allegheny National Bank against Robert J. Bailey, to recover two tracts of Jand particularly described in the writ, containing respectively over six acres and over three acres. Plea, not guilty.

80. Petition by Patrick O’Connor, setting forth that be is a poor person and unable to work; that be .has a wife and eight children (reciting their names and ages), of whom his adult children, Michael, Ellen, James, Mary, Ann and Catharine are able to provide for bis support; and praying for an order compelling them to do so.

1 of Alleghany county: Of October and November Term 1883, No. 93. Debt, by Thomas P. Simpson against James II. Connor, to recover $750, the amount of an award by an arbiter in favor of the plaintiff. . The plaintiff filed an affidavit of claim, and appended thereto a copy of an agreement under seal, between plaintiff and defendant, and a copy of the award.

2 of Allegheny county: Of October Term 1883, No. 91. Bill in equity, by the Pittsburgh and-Castle Shannon Railroad Company against John Matthews, Agnes Matthews, Robert Matthews, and William B. Matthews, to set aside a sheriff’s sale and sheriff’s deed whereby the defendants took title to a tract of land in Snowden township, Allegheny county.

<p>1. Whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to knowledge of the requisite fact by the exercise of ordinary diligence and understanding.</p> <p>2. The actual possession of a tract of land by one, other than the holder of the recorded title, is sufficient to put an intending purchaser upon inquiry as to the occupant’s title. The possession of a tenant is notice to a purchaser both of his own and of his landlord’s title, which would have been developed by inquiry.</p> <p>3. A purchaser is affected with notice of an unrecorded title if such notice be acquired by him directly from any person interested in the title, but he is not affected by a mere general rumor that an adverse unrecorded title exists.</p> <p>" 4. A., without inquiry of the tenants in possession, purchased a tract of farm land (without buildings), from B., who had purchased it a short tune previously at a sheriff’s saie as the property of O., who was the owner of the recorded title. O.’s wife, however, was the equitable owner under an unrecorded trust deed. The said tract adjoined another tract owned by O.’s wife, on which C. and his wife lived, and both tracts were being farmed together as one tract, on shares, by the wife’s tenants. B. never had possession. In ejectment by A. against O. and his wife:</p> <p>Held, that the evidence was properly submitted to the jury to determine whether the possession of O.’s wife, by her tenants, was such as to affect A. with notice of her unrecorded title.</p>

<p>1. Whether materials for which a mechanic’s claim has been filed were furnished on the credit of the building or that of the contractor is a question for the jury.</p> <p>2. It is not necessary for a material man to allege in his lien or to prove affirmatively that his materials were furnished upon the credit of the building, if it be shown that they were furnished for and entered into its construction. The burden is then on the defendant to show that they were furnished on the credit of the contractor alone.</p> <p>3. The fact that the materials are charged on the plaintiff’s books to the contractor alone affords some slight evidence that they were furnished on his credit, but is not prima facie evidence that his credit was relied on to the exclusion of the credit of the building.</p> <p>4. The court need not answer specifically or read to the jury the points presented to it, if they are substantially negatived in the general charge, and the jury are told that all points not answered are refused.</p> <p>5. Where the plaintiff dies during the pendency of a scire facias sur mechanic’s claim, and his administrator is substituted, the contractor, being a defendant and a party in interest, is not a competent witness. Nor can the owner render his co-defendant, the contractor, competent by releasing him from liability for costs.</p>

<p>Error to the Court of Common Pleas No. 1 of Allegheny county: Of October Term 1883, No. 9T.</p> <p>This was an action of ejectment by Mary E. Schenley against the city of Pittsburgh, to recover possession of a lot of ground in the first ward of said city. Plea, not guilty.</p> <p>At the trial, before Stowe, P. j., title was admitted to have been in John Penn and John Penn, Jr., in January 1784.</p> <p>The plaintiffs title rested in main upon the following agreement, which was put in evidence :</p> <p>Memorandum of agreement made and agreed upon between John Penn, Jr., and John Penn, both of the city of Philadelphia, esquilmes, of the one part, and Isaac Craig and Stephen Bayard, both of the said city, esquires, of the other part, as follows: The said John Penn, Jr., and John Penn, have this day contracted with, and sold to the said Isaac Craig and Stephen Bayard, a certain tract of land situate in Washington county, and in that part of this manor of Pittsburgh, is west of Monongahela, and opposite the junction of that river with the Allegheny, beginning on the bank of the river twenty-five perches below the place where the old French hospital stood ; from thence extending eighty perches up the river; thence extending up the coal hill fifty-four perches, from thence parallel with and opposite to the first line eighty perches, and from thence fifty-four perches to the place of beginning, containing twenty-five acres and the usual allowance for a road that is now along the bank of the river; and also a certain other small piece' of land situate in Westmoreland county, in their manor of Pittsburgh, lying and being in a point formed by the junction of the rivers Monongahela and Alagaine. Bounded on two sides of the livers aforesaid, on a third side by. the top or ditch of Fort Pitt, continued from the Monongahela to the salient angle of the north-east bastion, and from thence on the other side of a ditch, out to the Allegheny, containing about three acres more or less, with the appurtenances, for such a consideration or sum of money as the said John Penn, Jr., and John Penn shall at any time within one year from this time, bona fide, sell the same quantity of their said manor land for, adjoining the said hereby bargained premises, respectively, to any person or persons whatsoever. The said Isaac Craig and Stephen Bayard do now pay to the said John Penn, Jr., and John Penn, on the account of the said premises, the sum of twenty-five pounds specie, of gold and silver, for which a receipt is hereon endorsed. The said John Penn, Jr., and John Penn, do hereby, respectively, covenant and agree that within the said one year by patent or patents, deed or deeds, to grant and convey the said bargained premises to the said Isaac Craig •and Stephen Bayard, their heirs and assigns, in severalty forever, as tenants in common, they paying all expenses for waiting, and also paying to them, the said John Penn, Jr., and John Penn, the remainder of the consideration money, which shall then appear to be coming to them for the said bargained premises. The said John Penn, Jr., and John Penn, do also agree that the said Isaac Craig and Stephen Bayard shall, and may take immediate possession of the said bargained premises, and receive the rents and profits thereof to their own use; for the true performance of all and singular the covenants and agreements aforesaid, the said parties hereto mutually bind themselves, their heirs, executors and administrators, each unto the other of them in the penalty of three hundred pounds, gold or silver money, firmly by these presents to be paid by the defaultive party to the party complying.</p> <p>In witness whereof, the said parties to these presents have interchangeably set their hands and seals this twenty-second day of January, in the year of our Lord one thousand seven hundred and eighty-four.</p> <p>John Penn, Jr. [Seal.]</p> <p>Sealed and delivered in the John Penn, [Seal.] presence of us: Isaac Craig, [Seal.]</p> <p>Mary Allen. J. Cerund. Stephen Bayard, [Seal.]</p> <p>Received at the time of executing this instrument of writing of the named Isaac Craig and Stephen Bayard, the sum of twenty-five pounds, as therein specified to be paid on account of the bargained land-and premises.</p> <p>Test: John Penn.</p> <p>Mary Allen. J. Cerund.</p> <p>And. it is further agreed that Major Isaac Craig and Colonel Stephen Bayard shall have the right prenition to the land enclosed within the pans and rampart of Fort Pitt with the appurtenances as soon as the Garrison is within from that part.</p> <p>John Penn.</p> <p>John Penn.</p> <p>Recorded October 31st 1785, in Washington county, in Deed Book A, page 525.</p> <p>The plaintiff then offered in evidence the following deed •from the Penns to Craig and Bayard, recorded November 1st 1785, in Westmoreland county, in Deed Book D, 4, 299, &c., and on September 11th 1795 in Allegheny county.</p> <p>This Indenture made the thirty-first day of December, in the year of our Lord one thousand seven hundred and eighty-four, between John Penn, Junior, and John Penn, of the city of Philadelphia, in the Commonwealth of Pennsylvania, esquires, late proprietaries of Pennsylvania, of the one part, and Major Isaac Craig and Colonel Stephen Bayard, both of the town of Pittsburgh, in the county of Westmoreland in Pennsylvania aforesaid, of the other pare, witnesseth: That the said John Penn, Junior, and John Penn, for and in consideration of the sum of four hundred and eleven pounds, five shillings, •lawful silver money of Pennsylvania unto them, at or before the sealing and delivery hereof by the said Isaac Craig and Stephen Bayard well and truly paid, the receipt whereof is hereby acknowledged, have granted, bargained, sold, released and confirmed, and by these presents do grant, bargain, sell, release and confirm unto the said Isaac Craig and Stephen Bayard, and to their heirs and assigns, thirty-two lots or pieces of ground, situate in a point formed by the junction of the two rivers, Monongahela and Allegheny, in the town of Pittsburgh aforesaid, marked in the general plan of the said town made by Colonel Geo. Woods, number one, two, three, four, five, -six, seven, eight, nine; number ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen; one hundred and thirty-two, one hundred and thirty-three, one hundred and thirty-four, one hundred and thirty-five, one hundred and thirty-six, one hundred and thirty-seven, one- hundred and thirty-eight, one hundred and thirty-nine, one hundred and forty, one hundred and forty-one, one hundred and forty-two, one hundred and forty-three, one hundred and forty-four, one hundred and forty-five, and two hundred and sixty, and which said plan is recorded, or intended to be recorded, in the office for recording of deeds for the county of Westmoreland ; the said lots of ground, number one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen and seventeen are bounded, northwardly, by the said Allegheny river; eastwardly, by Marbury street; southwardly, by Penn street, and south-westwardly, by the said Monongahela river; the said lots of ground, number one hundred and thirty-two, one hundred and thirty-three, one hundred and thirty-four, one hundred and thirty-five, one hundred and thirty-six, one hundred and thirty-seven, one hundred and thirty-eight, one hundred and thirty-nine, one hundred and forty, one hundred and forty-one, one hundred and forty-two, one hundred and forty-three, and one hundred and forty-four are bounded, south-westwardly, by the said Monongahela river; northwardly, by the said Penn street; eastwardly, by the said Marbury street, and southwardly,-i by Liberty street, and the lot of ground marked number one hundred and forty-five, being bounded, south-westwardly, by the said Monongahela river; northwardly, by Liberty street; northeastwardly, by Front street, and southeastwardly, by West street; and the lot number two hundred and sixty being bounded, northward, by Liberty street; southeastward, by West street, and south-westward, by Front street; together with all and singular the rights, members and appurtenances whatsoever to the said thirty-two lots or pieces of ground hereby granted severally and respectively thereunto belonging or in any wise appurtainiug. To have and to hold the said thirty-two lots or pieces of ground, hereditaments and premises hereby-granted or mentioned to be granted, in manner following, that is to say : One full, equal and undivided moiety or half thereof, with the respective appurtenances, unto the said Isaac Craig, his heirs and assigns, to and for the only.,proper use and behoof of the said Isaac Craig, his heirs and assigns forever. And the other like moiety or equal and undivided half part thereof with the respective appurtenances unto the said Stephen Bayard, his heirs and assigns, to and for the only proper use and behoof of the said Stephen Bayard, his heirs and assigns, forever. In witness whereof the said parties have interchangeably set their hands and seals hereunto, dated the day and year first above written.” (Duly executed, &c.)</p> <p>Wood’s plan, alluded to in this deed, was offered in evidence as follows:</p> <p> </p> <p>“ Wood’s plan ” is recorded in Allegheny county and is indorsed: “Plan of town of Pittsburgh, laid out May 1784; original draft kept by Thomas Vickroy. This draft presented to the city of Pittsburgh December 16th 1841. Thomas Vickkoy. [Seal.]”</p> <p>The plaintiff then deduced her title from Craig and Bayard by a series of mesne conveyances not necessary here to be recited.</p> <p>This was followed by the testimony of plaintiff’s engineers, and map, showing that the land claimed in this writ lay wholly without the lines of the lots in Wood’s plan and mostly within the beds of the rivers as shown on Wood’s plan. The entire claim is made land, or natural and artificial accretions, the present extent of which is approximately shown by the dotted lines in the plan. Plaintiff further proved that this made land is now and for many years has been rented out by the city for private purposes ; and the Act of 1804, a supplement to the borough charter (4 Smith Laws 144), showing that the old borough was bounded by these rivers ; and rested.</p> <p>The defendant moved for a compulsory non-suit because the plaintiff did not show any right of possession in herself to the land described in the writ. The Judge granted the non-suit and afterwards the court in banc refused to take it off. Whereupon the plaintiff took this writ of error, assigning for error the action of the court below in refusing to take off the non-suit.</p>

2 of Allegheny cotmty : Of October and November Term 1883, No. 140.

2 of Allegheny county: Of October Term 1883, No. 155. Debt, on a joint and several property bond in replevin, by John IT. Hare, sheriff, for use of James McKay, against John Jennings, Israel Painter and Alfred Patterson, said .Painter and Patterson being sureties of J minings. The death of Painter being suggested, his administrators c. t. a. were substituted on the record, and a scire facias was duly served on them.

2 of Allegheny county: Of October and November Term 1883, No. 157. Assumpsit, by Rev. James Treaey against Rt. Rev. John Tuigg, trustee of St. Bridget’s Roman Catholic Church, Pittsburgh, with notice to Rev. Jerome Kearney, pastor or quasi pastor of the same, and John McFarren, M. J. Farrell, Iiugb Dorris, John Brown, and others, members of said church.

2 of Allegheny county : Of October and November Term 1883, No. 166.

<p>1. It is settled law that where mortgaged land is sold or mortgaged in pieces and at different times, the several pieces are liable for the mortgage debt in the inverse order of their alienation.</p> <p>3. A second mortgage is a sale within this rule.</p> <p>3. At law a judgment is discharged by actual payment, but in equity it may still subsist when justice requires it; and in such cases actual assignment of the judgment to the party equitably entitled is not essential.</p> <p>4. A. mortgaged a tract of land to B., and divided the same into three lots. The first he mortgaged toO., the second he mortgaged to D., the third he conveyed to E. B. entered judgment on the bond accompanying his mortgage, and D. became the purchaser at sheriff’s sale of the lot mortgaged to him. A. became a bankrupt, and the lot mortgaged to O. was sold by his assignees in bankruptcy, free of all liens,for a sum sufficient to pay the mortgage of B., to whom tbe fund was awarded. O. filed a bill against B., D. and E., claiming to be subrogated to the rights'of B. as against D. and E., and to realize his claim by a sale of their lots in the inverse order of their alienation. On demurrer' to the bill. Held :</p> <p>(1) That when C. took his mortgage, he had an. equity to compel A.. to pay the paramount mortgage to B. out of the remaining portions of the property covered by it; and as C.’s security, by no act of his own or of B., bad been taken to pay the common incumbrance, he had a right to-be relieved as against D. and E. in the inverse order of the conveyances to them, and that, being subrogated herein to B.’s rights, he should be entitled lo the lien of the paramount judgment for this, purpose, although the same had been paid by process of law.</p> <p>(2) That Ibis was a case of subrogation and not of contribution.</p> <p>(3) That D. did not change his position by becoming the purchaser at a judicial sale under his own mortgage.</p> <p>5. The Act of April 23d 1856 § 9 (P. L. 534), “for the greater certainty of 'title and more secure enjoyment of real estate,” provides in cases where the real estate of several persons is subj ct to llie lien of a judgment to which they should contribute, or to winch one should be subrogated as against the others, that the person having such right of contribution or subrogation may, upon suggestion thereof, obtain a rule on the plaintiff to show cause why he should not levy on and make sale of the real estate so liable in the proportion or in the succession in which the properties of the several owners shall be respectively liable, &c. Held,:</p> <p>(1) That this Act did not give the light of substitution, but merely provides a mode of enforcing it in certain cases, as, for example, where the plaintiff in a judgment which binds several properties is about to collect it and there are equities to be adjusted between the terre-lennnts.</p> <p>(2) The Act does not provide an exclusive remedy when the land has been sold and the judgment paid without the issuing of execution upon that judgment.</p> <p>Quere, whether the Act applies at all to such cases.</p> <p>Carpenter v. Koons, 8 Harris 222, distinguished.</p>

<p>Error to the Court of Common Pleas No. 1 of Allegheny county : Of October and November Term 1883, No. 163.</p> <p>Case, by Amelia Richter, widow of Frank Richter, deceased, as well for herself as for Frank Richter, Jr., minor child of said Frank Richter, deceased, against The Pennsylvania Company, operating the Pittsburgh, Fort Wayne and Chicago Railway, to recover damages for the death of said Frank Richter, caused, as alleged, by the negligence of the defendant’s servants.</p> <p>On the trial, before Stowe, P. J., the plaintiff’s evidence showed the following facts; The deceased was employed in the rolling mill of Oliver Bros, to haul ashes from the furnace to a cinder pile, which was on the opposite side of a switch of defendants’ railway, which ran into the mill. While so employed, finding his way across the switch obstructed by empty cars standing thereon, he uncoupled them, and, while moving • some of them, an engine ran on the switch and pushed the oars together, whereby the deceased was crushed to death. Tim alleged negligence consisted in the omission of the mail in charge of the engine to give any warning of its approach by ringing the bell or whistling.</p> <p>The court, on motion, granted a non-suitf on the ground that the Act of April 4th 1868 applied to the case, the deceased having been “ lawfully engaged ” on or about the railway of defendants; and the court subsequently refused to take off the non-suit: whereupon the plaintiffs took this writ of error, assigning for error the said action of the court.</p>

1 of Allegheny county: Of October Term 1883, No. 167. This was, in the court below, an appeal by Louis Eisenbeis, agent, and Maggie Eisenbeis, defendants, from the judgment of a justice of the peace in favor of Louis Iiilke, the plaintiff, for $104. The facts were as follows : Louis Eisenbeis, agent, leased to Hilke certain premises inEederal street, Allegheny city, at an annual rental of $600.

1 of Allegheny county: Of October Term 1883, No. 192. Assumpsit, by The Arsenal Bank of Pittsburgh against William Smith, upon a promissory note dated January 9th 1879 at four months for one thousand dollars made by William Sunderman to the order of the defendant and by him indorsed. The paper book of the plaintiff in error contained none of the evidence.

<p>Writs of error to the Court of Common Pleas No. 1 ®f Allegheny county: Of October and November Term 1883, Nos. 193, 194, 195, 196, 197, 212.</p> <p>These cases were, in the court below, actions of scire facias sur municipal liens, for taxes, by the city of Pittsburgh against the Pennsylvania Railroad Company, the Pennsylvania Company operating the Pittsburgh, Port Wayne and Chicago Railway, and the Citizens’ Passenger Railway Company of Pittsburgh, respectively. Affidavits of defence were filed in each case, and also pleas of nunquam indebitatus. The parties, by agreement filed, waived trial by jury, and the cases were tried, in accordance with the provisions of the Act of April 22d 1874 (P. L. 109), before Stowe, P. J., whose findings of fact and conclusions of law in the several cases were as follows:</p> <p>City of Pittsburgh v. Pennsylvania Railroad Company.</p> <p>Finding of facts, No. 584, March Term 1882.</p> <p>The following facts appear from the evidence and admissions of the parties in the case :</p> <p>The Pennsylvania Railroad Company was incorporated by 'an Act of Assembly, approved April 13th 1846 (P. L. 312), with authority to construct a railroad, one terminus of which should be in the city of Pittsburgh ; and to purchase, hold, use and enjoy lands, tenements and hereditaments such as may be necessary or convenient for the making and con-, structing of the railroad, or for furnishing materials therefor, and for the accommodation of depots, offices, warehouses, machine houses, toll houses, engine and water stations, and other appropriate appurtenances, and for persons and tilings employed or used in or about the same (section 2).</p> <p>In the year 1879 taxes for city purposes were assessed by the proper authorities of the city of Pittsburgh upon a certain property situated in the First ward of said city, and described in the lien filed February 17th 1882, as lot 660x110, Liberty street, from Water street to Third street, one large frame freight depot. This property, as the evidence discloses, is one of the terminal freight stations of the Pennsylvania Railroad Company, and is such property as is ordinarily and properly pertinent to the railroad as such, and strictly necessary for its proper operation in exercising its franchises. The property is used exclusively for railroad purposes, and was so used during the years for which the taxes in question were assessed. It was not then, and is not now, assessed as taxable for county purposes. It was acquired by the Pennsylvania Railroad Company in part by appropriation proceedings under its charter, and in part by conveyances in fee simple, and in part by a city ordinance as hereinafter explained.</p> <p>The acquisition of said property for railroad purposes was expressly authorized by an Act approved February 17th 1854 (P. L. 76j, and an Act approved April 21st 1854 (P. L. 453). The right of the company to lay its rails over and through the streets of the city of Pittsburgh, so as to connect 'with this property, was expressly granted by an ordinance of said city enacted on. the 15th day of June, 1848. An alley, known as Bell’s alley, and which extended from Liberty street to Exchange alley, through the middle of the property, was vacated by an ordinance of the city dated May 9th 1854, and the use of the ground occupied by said alley granted to the Pennsylvania Railroad Company, said company paying the city therefor at the same rate that they paid for adjoining property, and with a proviso that whenever the said ground should cease to be used for the purpose of a depot the same should revert to the city.</p> <p>An Act of Assembly, approved January 4th 1859 (P. L. 828), entitled “ An Act to enable the city of Pittsburgh to raise additional revenue,” gave additional powers to the city of Pittsburgh with respect to taxation. Section 1 authorized the levy and collection of a license upon pawnbrokers, and authorized the enacment of a penalty for the non-payment thereof. Section 2 authorized and empowered the levy and collection of a tax upon retailers and auctioneers, and provided that the tax so levied should be collected as other taxes are now by law collected, and should be a lien until paid upon all property owned by parties assessed, in like manner as prescribed, with reference to taxes upon real estate under then existing laws. Section 4 authorized the levy and collection of a business tax; and section 5 provides that this latter tax should be retained and deducted by cashiers, treasurers or other officers having charge of corporations upon which the tax was levied, amd that upon a failure to pay the same the property of the corporation should be subject to levy and sale by any ward constable upon a warrant to be issued by the city treasurer. And provided, also, “ And all taxes levied in pursuance of this Act may be recovered as debts of similar amounts are recoverable by law.”</p> <p>Section 8 is in these words : “ That all real estate situated in said city owned or possessed by any railroad company shall be and is hereby made subject to taxation for city purposes, the same as other real estate in said city.”</p> <p>It is under this section that the city now claims a right to assess and recover the taxes claimed in this suit. The lien in this ease filed was filed pursuant to the provisions of an Act entitled “ An act in relation to cities of the second class, providing for the levy, collection and disbursement of taxes and water rents,” approved the 22d day of March, 1877 (P. L. 16). This Act does not name the subjects of taxation. It provides, however, that taxes and water rents shall be payable in instalments during certain months, in the Act named, and provides also for the appointment by the city treasurer of an officer to be denominated “ Collecter of Delinquent Taxes.” When taxes are delinquent under the Act it becomes the duty of the city-treasurer to prepare lists of such delinquent taxes and furnish the same to the collector.</p> <p>The act then provides, section 9 : “ Upon lists aforesaid being furnished to such collector, he shall immediately thereafter proceed to collect all such delinquent taxes and water rents either out of the personal or real estate of such delinquent owner, wherever the same may be found, and for such purpose he shall be and is hereby invested with full authority to levy on and sell the personal property after the tax and water rents have become delinquent thirty days, and the real estate of any owner where the taxes or water rents remain unpaid for six months may be sold by direction of such collector.</p> <p>“It shall be the duty of- such collector to procure an accurate description of the real estate upon which said delinquent taxes have been assessed if the same is not given on the assessor’s books, the costs thereof to be charged against such 'owner not to exceed in any case one dollar, and to tile liens therefor in the office of the prothonotary.” ....</p> <p>And section 11 provides : “ All taxes and water rents levied for any purpose in cities of the class aforesaid, shall remain liens until fully paid and satisfied, and shall not be divested by any judicial sale, except to the extent to which distribution shall be made out of the proceeds of said sale.”</p> <p>This Act has a general repealing clause of all Acts or parts of Acts in conflict with it.</p> <p>An Act approved the 28th day of March, 1872 (P. L. 606), entitled “ An Act giving power to the councils of the city of Pittsburgh to equalize the valuation of the taxable property within the city for city purposes,” provides (inter alia), section 2, “ That the said councils of the city of Pittsburgh shall take for city purposes the aggregate valuation of the taxable property within said city as assessed for county purposes, and in altering, revising or equalizing said valuation for city purposes, they shall not increase the aggregate valuation beyond the aggregate amount assessed for county purposes within the city.</p> <p>An Act approved the 5th day of May, 1876 (P. L. 124), entitled “ An Act providing for the classification of real estate for the purposes of taxation and for the appointment of assessors in cities of the second class” provides in its first section, for the election of a Board of Assessors ; and in its second section provides as follows: “ That said Board of Assessors shall make an assessment of all subjects of taxation now by law or hereafter made subject to taxation for city purposes, and shall take as the basis of such assessment, the assessments as returned by the ward assessor of the several wards of said city to the County Commissioners, a copy of which shall be furnished to said board by the said County Commissioners of the county in which said city is situated, and shall have power to revise, equalize or alter such assessments by increasing or reducing the valuations, either in individual cases or by wards or parts of wards, to add to such lists of assessments any subject of taxation subject to taxation as aforesaid omitted therefrom, and attach a valuation thereto.”</p> <p>It is contended upon the part of the railroad company that taxes claimed in these proceedings are not collectible for the following reasons:</p> <p>1st. Because the term “ real estate ” in the classification of the tax laws has no application to real property which is indispensable to a railroad as such and constitutes part of its franchise.</p> <p>2d. Because the only proper subjects of assessment for the purposes of taxation by the city of Pittsburgh arc such as are the subjects of assessment and taxation for county purposes, and,</p> <p>3d. Because the remedy provided for the collection of these taxes is by a proceeding in rem, and that the property described in the liens cannot be sold or divested of its public use, and that the statutory remedy is exclusive.</p> <p>Same v. Same.</p> <p>Finding of facts, No. 587, March Term 1882.</p> <p>In the year 1881 taxes for city purposes were assessed by the proper authorities of the city of Pittsburgh upon a certain property situated in the Third ward of the city of Pittsburgh, and described in the lien filed Feb. 17th 1882, as lot 36x60, Cherry alley, corner of Oak alley, two two-story brick dwellings, one three-story brick smoke-house. Lot 33x74, Oak alley, corner of Railroad alley; one three-story building. Lot 31.3^-inches, Liberty street, 79.9J inches, Cherry alley, averaging 98 feet deep to Railroad alloy, one three story brick hotel building. Lot 250x120, Grant street from Seventh avenue to Plum alley. Lot 250x120, Grant street to private alley between Seventh avenue and Liberty street. Triangular lot 158, averaging 65, Grant street and Liberty street.</p> <p>Upon all of this property, except the last three items named, the Pennsylvania Railroad Co. paid taxes in fullas claimed by the city. The last three items, as the evidence discloses, constitute together one of the freight stations of the Pennsylvania Railroad Co., and constitute a property such as is ordinarily and properly pertinent to the railroad as such, and strictly necessary for its proper operation in exercising its franchises; it is used exclusively for railroad purposes, and was so used during the years for which the taxes in question were assessed. It was not then and is not now assessed as taxable for county purposes.</p> <p>The right of the company to lay its rails over and through the streets of the city of Pittsburgh, so as to connect with this property is expressly granted and recognized by several ordinances of said city.</p> <p>An Act of Assembly, approved January 4th 1859 (P. L. 828), entitled “ An Act to enable the city of Pittsburgh to raise additional revenue,” gave additional powers to the city of Pittsburgh with respect to taxation, etc., etc., as in finding at No. 584, March Term 1882, supra.</p> <p>Same v. Same.</p> <p>Finding of facts, No. 5S8, March Term 1882.</p> <p>In the year 1880, taxes for city purposes were assessed by the proper authorities of the city of Pittsburgh upon a certain property situated in the Fourth ward of said city, and described in the lien filed February 17th 1882, as lot 30x120, Liberty, between Thiid and Fourth streets, two-story brick dwelling; lot 140x110, Liberty street, corner of Eleventh street, less right of way, Slate office. Lot 60x68, Liberty street, corner of Third, one two-story brick office building.</p> <p>Upon item in the lien filed described as lot 140x110, Liberty street, corner of Eleventh street, less right of way, Slate office, the Pennsylvania Railroad Company paid taxes as assessed by the city. The remainder of the property in said lien described constitutes the freight offices of the company, used in connected with Duquesne Freight Depot, and is such property as is ordinarily and properly pertinent to the railroad as such, and strictly necessary for its proper operation in exercising its franchises. The property is used exclusively for railroad purposes, and was so used during the years for which the taxes in question were assessed. It was not then; and is not now, assessed as taxable for county purposes.</p> <p>An Act of Assembly, approved January 4th 1859 (P. L, 828), entitled “An Act to enable the city of Pittsburgh to raise additional revenue,” gave additional powers to the city of Pittsburgh with respect to taxation, &c., &c., as in finding at No. 584, March Term 1882, supra.</p> <p>Same v. Same.</p> <p>Finding of facts, No. 593, March Term 1882.</p> <p>In the year 1880, taxes for city purposes were assessed by the proper authorities of the city of Pittsburgh, upon a certain property situated in the Ninth ward of said city, and described in the lien filed February 17th 1882, as lot averaging 330x260, Liberty street to Faber street, from Washington street to Elm street, less right of way of Pittsburgh, Ft. Wayne & Chicago Railwaj', and Pittsburgh, Cincinnati & St. Louis Railway, one small freight depot, one round-house for twenty engines, one one-story machine and blacksmith shop. Lot 1702x210, Liberty street to south side of Quarry, beginning at Elm street, including Elm, thence eastwardly to ward line at Fifteenth street, less right of way of Pennsylvania Railroad, one two-story brick depot and shed, one two-story brick gas house, two ' coal yards, machinery. Lot 332x200 Quarry street south side to alley from Elm street to Twelfth street.. Lot 325, averaging 87, Quarry street, south side, betweep Twelfth and Thirteenth streets. Lot 865, averaging 203, Quarry street-, south side, between Thirteenth and Fifteenth streets. Lot 50x50, Washington street.</p> <p>On the items of property described in the lien, two coal yards and lot 50x50, Washington street, the Pennsylvania Railroad Company paid taxes as assessed by the city. The remaining property described in the lien, as the evidence discloses, is covered entirely with tracks, passenger station, roundhouses and ways of approach to the passenger station, and buildings used in connection with the railroad. There is included therein the Union Station, which is the Pennsylvania Railroad Company’s terminal passenger station in the city of Pittsburgh, used also by a number of western lines centering in said city, and also the Pittsburgh yard, used by all these companies ; according to the evidence, a railroad train comes or goes from this station on an average of each three minutes of every twenty-four hours, and not less than 17,000 persons daily make use of said station. A very large portion of the property described is made up of certain streets of the city of Pittsburgh, which were surrendered to the Pennsylvania Railroad Company, by authority of Acts of the legislature, and ordinances of the city, for railroad purposes. The entire property is such as is ordinarily and properly pertinent to the railroad as such, and strictly necessary for its proper operation in exercising its franchises. It is used exclusively for railroad purposes, and was so used during the years for which the taxes in question were assessed. It was not then, and is not now, assessed as taxable for county purposes. It was acquired by the Pennsylvania Railroad Company in part by appropriation proceedings under its charter, and in part by conveyances in. fee simple, and in part by virtue of legislation, state and municipal, authorizing the vacation of certain streets as before stated.</p> <p>The acquisition of said property by the Pennsylvania Railroad Company for railroad purposes, was authorized by legislation as follows:</p> <p>1. “ An Act to authorize the Pennsylvania Railroad Company to purchase and hold certain real estate in the city of Pittsburgh,” approved February 7th 1856, P. L. 33.</p> <p>2. “ An Act relative to the removal of the tracks of the Pennsylvania Railroad Company from a portion of Liberty street, in the city of Pittsburgh,” approved April 5th I860, P. L. 667.</p> <p>3. “An Act extending the term for the removal of the tracks of the Pennsylvania Railroad Company from a portion of Liberty street, in the city of Pittsburgh,” approved April 1st 1863, P. L. 194.</p> <p>4. “ An Act relative tp taking certain ground in the city of Pittsburgh by the Pennsylvania Railroad Company,” approved April 18th 1863, P. L. 512.</p> <p>5. “ A further supplement to an Act relative to the removal of the tracks of the Pennsylvania Railroad Company from a portion of Liberty street in the city of Pittsburgh, approved April 5th 1860,” approved April 20th 1864, P. L" 5Íé.</p> <p>6. “ A farther supplement to an Act relative to the removal of the tracks of the Pennsylvania Pailroad Company from a portion of Liberty street, in the city of Pittsburgh, approved April 5th 1860,” approved March 2Íst 1865, P. L. 466.</p> <p>7. “An ordinance granting certain privileges to the Pennsylvania Pailroad Company,” ordained June 15th 1848.</p> <p>8. “An ordinance changing the grade of Liberty street, between Wayne and O’Hara streets,” ordained August 19th 1858.</p> <p>9. “ An ordinance' to enable the Pennsylvania Pailroad Company to remove its tracks from a portion of Liberty street, in the city of Pittsburgh,” ordained December 12th 1861.</p> <p>A large number of streets, public alleys, and passage ways of the city of Pittsburgh, herein before referred to, were vacated pursuant to the foregoing legislation and are included in the property described in the lien, all of which are now used exclusively for railroad purposes, and are necessary to the operation of the company in the exercise of its franchise.</p> <p>An Act of Assembly, approved January 4th 1859, P. L. 828, entitled “An Act to enable the city of Pittsburgh to raise additional revenue,” gave additional power to the city of Pittsburgh, with respect to taxation, &c., &c., as in finding at No. 584, March Term 1882, supra.</p> <p>Same v. The Pennsylvania Company, operating the Pittsburgh, Port Wayne and Chicago Railway.</p> <p>finding of FiCTS, No. 589, March Term 1882.</p> <p>The following facts appear from the evidence and admissions of the parties in the case:</p> <p>The Pennsylvania Company was incorporated by an Act of Assembly, approved April 7th 1870 (P. L. 1025), with power (inter alia) to lease, manage and operate railroads. The Pittsburgh, Fort Wayne & Chicago Hailway Company, a corporation duly existing under the laws of Pennsylvania, by appropriate proceedings, leased its entire railway property and appurtenances to the said Pennsylvania Company, and the Pittsburgh, Fort Wayne & Chicago Railway Company is now being operated and managed by the said Pennsylvania Company under said lease.</p> <p>Said Pittsburgh, Fort Wayne & Chicago Railway Company has authority (inter alia) to construct a railroad, one terminus of which should be in the city of Pittsburgh, and to purchase, hold, use and enjoy lands, tenements and hereditaments necessary or convenient for the making and constructing of the railroad and the operation of the same.</p> <p>In the year 1880 taxes for city purposes were assessed by the proper authorities of the city of Pittsburgh, upon certain property of said Pittsburgh, Port "Wayne & Chicago Railway Company, now in the use and occupation of the Pennsylvania Company, situate in the Fourth ward of said city, and described in: the lien filed February 17th 1882, as follows :</p> <p>Lot 360, averaging 596, Penn avenue, through to the river, comer of Tenth street, less right of way, five-story brick office building, three-story brick building, two small' freight depots, one large freight depot shed.</p> <p>! Upon so much of this property as is not in actual use for railroad purposes the defendant company paid taxes as assessed by the city. That portion of the property upon which taxes were not paid is, as the evidence discloses, the terminal freight station of the Pittsburgh, Fort Wayne & Chicago Railway Company, in the city of Pittsburgh and its general offices used in connection with its railroad business, and is such property as is ordinarily and properly pertinent to the railroad as such, and strictly necessary for its proper operation in exercising its franchise. The property is used exclusively for railroad purposes, and was so used during the years for which the taxes in question were assessed. It was not then and is not now assessed as taxable for county purposes.</p> <p>An Act of Assembly, approved January 4th 1859 (P. L. 828), entitled “ An Act to enable the city of Pittsburgh to raise additional-revenue,” gave additional powers to the city of Pittsburgh with respect to taxation. Section 1 authorized the levy and collection of a license upon pawnbrokers; and authorized the enactment of a penalty for the non-payment thereof. Section 2 authorized and empowered the levy and collection of a tax upon retailers and auctioneers, and provided that the tax so levied should be collected as other taxes are now by law collected, and should be a lien until paid upon all prop•erty owned by parties assessed in like manner as prescribed with reference to taxes upon real estate under then existing .laws. Section 4 authorized the levy and collection of a business tax ; and section 5 provides that this latter tax should be retained and deducted by cashiers, treasurers or other officers having charge of corporations upon which the tax was levied, .and that upon a failure to pay the same the property of the corporation should be subject to levy and sale by any ward ■constable upon a warrant to be issued by the city treasurer. And provided, also, “ And all taxes levied in pursuance of this Act may be recovered as debts of similar amounts are recover■able by law.”</p> <p>Section 3 is in these words : “ That all real estate situated ■in said city owned or possessed by any railroad company shall bo. and is hereby made subject to taxation for city purposes the same as other real estate in said city,” &c., &e., as in finding at No. 584, March Term 1882, supra.</p> <p>OPINION OF THE . COURT, IN ALL OF THE FOREGOING OASES.</p> <p>There are several principles of law involved in this controversy so well settled that it is needless to do more than state them here.</p> <p>1st. Under the constitution of this state the taxing power is vested absolutely in the legislature, and is limited only by its discretion.</p> <p>2d. To carry out the purposes of municipal governments the legislature may vest in them powers of taxation.</p> <p>3d. The legislature may tax railroad property either for state or municipal purposes, except where in special cases it would violate, the charter of some particular company,</p> <p>4th. The law is -settled that the words “ real estate ” in the general tax law of the state do not include or make liable to taxation the real estate of a railroad company, such as road-bed, depots, machine shops, and other land necessary for the operation of the road.</p> <p>It is not alleged here that the charter of the defendant is such as exempts it from the taxing power of the Commonwealth. And the question upon which the whole matter turns, is the proper construction of|the Act of Janury 4th 185.9.</p> <p>What then did the legislature mean when it passed the Act in question, and in terms declared “ that all real estate situate in said city (Pittsburgh), owned or possessed.by any railroad company, shall be and is hereby made subject to taxation for city purposes, the same as other real estate in said city?”</p> <p>At fi.rst view the intention would seem to be too apparent to admit of doubt. The language is clear and explicit. Its ordinary meaning is clear and unquestionable. Is there anything in law as it existed prior to the Act, or at,the time it was passed, which should cause a different interpretation to be given to it? .1 have failed to see any. Indeed, the natural signification of the terms of the Act are strongly intensified by the law as distinctly ruled by the Supreme Court and generally understood prior to its passage.</p> <p>' Under the words “real estate” in the general law, property such as here involved, could not be taxed for city or county purposes. All other real estate than that owned and used by railroad companies, for strictly railroad purposes, was liable tq such taxation. If the construction urged by defendant is correct that statute was useless. If it gave the city no right.'to tax railroad property, before exempt, why was it enacted ? To so hold would imply either great ignorance or dishonesty in the legislature. This we can not do. We must give the A.et the same construction that applies to all others standing in like position. To my mind it is clear that the legislature meant by the Act in question to subject the real estate of railroad companies, previously exempt, to taxation for municipal purposes, and that all the real estate assessed by the plaintiff is subject to the tax imposed.</p> <p>I am also of opinion that the other objections raised by defendant, as to regularity of assessment and form of proceeding, should be. overruled, and that plaintiff is entitled to judgment in this case for the amount claimed.</p> <p>July 20th 1S83, the foregoing decision ordered to be filed, and that judgment be entered thereon by the prothonotary in favor of plaintiff for $1,834.16, unless exceptions are filed thereto within thirty days after notice hereof, said notice to bo given by the prothonotary to the parties or their attorneys forthwith.</p> <p>EXCEPTIONS TO THE DECISION OE THE COURT IN EACH OE THE FOREGOING CASES.</p> <p>1st. The court erred in deciding that the term “ real estate ” in the Act of the 4th day of January 1859, has any application to the property described in the lien in this case filed, or that said property is real estate witliin the meaning of that term as used in said Act.</p> <p>2d. The court erred in deciding that such portion of the property described in the lien in this case filed, as does not belong, to the defendant company in fee simple, is within the purview of said Act of the 4th day of January 1859.</p> <p>3d. The court erred in not holding that it was beyond the power of the assessing officers of the plaintiff city to include ás asssessable the property described in the lion in this case filed.</p> <p>4th. The court erred in not holding that such portions of the property described in the lien in this case filed, as do not belong to the defendant company in fee simple, were not the subject of assessment for the purposes of taxation.</p> <p>5th. The court erred in not holding that the property described in the lien in this case filed, was exempt from any proceeding such as this — that is to say, the court erred in not holding that said property was exempt from process in rem.</p> <p>6th. The court erred in deciding that the defendant company’s property',. described in the lien filed, is subject to taxation by the jfiaiij tiff for city purposes.</p> <p>City of Pittsburgh v. Citizens’ Passenger Railway Company of Pittsburgh.</p> <p>FINDINGS OF FACT.</p> <p>From the evidence and admissions of the parties, the following facts are found:</p> <p>1. The lien was filed by the collector of delinquent taxes of the city of Pittsburgh under the provisions of an Act entitled “ An Act in relation to cities of the second class, providing for the levy, collection and disbursement of taxes and water rents,” approved March 22d 1877, P. L. 16, for taxes levied upon a lot of ground situated on'the north side of Butler street, in the city of Pittsburgh, between Forty-first and Forty-second streets, fronting on Butler street 125 feet, and extending northwardly, the same width, 150 feet; and having a largo brick stable erected thereon.</p> <p>2. The taxes claimed were assessed for the year 1879, and amounted to the sum of $649.08; the said real estate being taxed the same as other real estate in said city.</p> <p>3. The property was assessed by the proper city authorities, under the provisions of an Act of Assembly approved January 4th 1859, P. L. p. 828, entitled “ An Act to enable the City of Pittsburgh to raise additional revenue,” the provisions of which-were as follows : Section 1 authorizing the levy and collection of a license upon pawnbrokers, and the imposition of a penalty for non-payment thereof. Section 2 authorizing the levy and collection of a tax upon retailers of liquors and auctioneers, arid provided that the same should be collected as other city taxes, and to be a lien upon all property owned by parties assessed in like manner as prescribed with reference to taxes upon real estate under then .existing laws. " Section 4 authorizing tlie levy and collection of taxes upon business of forwarding-and commission merchants, brokers, banks, insurance companies, &c. 'Section 5 provides that said tax-shall be retained ■ by-cashiers, treasurers, and other officers of corporations, and upon failure to pay the same, the property of the corporation shall be subject to levy and sale by any ward constable, upon a warrant to be issued by the City Treasurer; and, further, that .all-taxes levied in pursuance of this act may be recovered as debts of similar amounts are recovered by law. Section 3 is in these words: “That all real estate situated in said city owned or possessed by any railroad company shall be, and is hereby made, subject to taxation for city purposes, the same as other real estate in said city.” ,</p> <p>The provisions of the Act of March 22d 1877, under which the lien was filed, are as follows: Sections 1 to 6, inclusive,provide the mode of assessing taxes and the time.of payments The 7th section authorizes the appointment, by the City Treasurer, of a Collector of Delinquent Taxes. Section 8 directs the treasurer to prepare lists of delinquent taxes, and place them in the hands of the collector. Section 9 provides as follows : “ Upon the lists aforesaid being furnished to such collector, he shall immediately thereafter proceed to collect all such delinquent taxes either, out of the personal or real estate of such delinquent owner, wherever the same may be found ; and for such purposes he shall be and is hereby invested with full authority to levy on and sell the personal property after the taxes or water rents have become delinquent thirty days; and the real estate of any owner, when the taxes or water rents remain unpaid for six months, may be sold by direction of such collector. It shall be the duty of such collector to procure an accurate description of the real estate upon which said delinquent taxes have been assessed, if the same is not given on the Assessor’s books, the cost thereof to be charged against such owner, not to exceed in any case one dollar, and to file liens therefor in the office of the Prothonotary.” Section 10 provides for monthly returns of collections made. Section 11 is as follows : “ All taxes and water rents levied for any purpose in cities of the class aforesaid shall remain liens until fully paid and satisfied, and shall not be divested by any judicial sale, except to the extent to which distribution shall be xnade out of the px’oceeds of such sale.” Section 12 provides that all taxes shall be liens upon real estate whether the real owner is named or not, and also provides for i’edemption by owner within one year after sale. Section 13 px’ovides that lists of unseated lands be advertised previous to entry in the office of the prothonotary. Sections 14 axxd 15 relate to procxiring descriptions of property, and section 16 is a genei'al i’epealing clause.</p> <p>This Act does not specify the subjects of taxation.</p> <p>4. The publication of delinquent taxes was made previous to filing liens, as required by the Act and the supplement thereto, approved March 15th 1878, P. L. p. 7.</p> <p>5. The Act of March 30th 1S60, P. L. 364, section 3, provides that councils, in levying taxes, shall be authoxized to adjust the rates of taxation upon the different subjects now liable or that may hereafter be liable- to taxation for city pxirposes, without regard to limitations in former Acts.</p> <p>By Act of Assembly entitled “An Act giving power to councils of the City of Pittsburgh to equalize the valuation of the taxable property within the City of Pittsbux'gh for city pui’poses,” approved March 28th 1872, P. L. 606, it is piwided [section 2] : “ That the said councils of the City of Pittsburgh shall take, for city purposes, the aggregate va-luatioxx of the taxable property within said city as assessed for county purposes, and in altering, revising, or equalizing said valuation for city purposes, they shall not increase the aggregate amount assessed for county purposes within the city,” And by an Act entitled “ An Act providing for the classification of real estate for purposes of taxation, and for the appointment of assessors in cities of the second class,” approved May 5th 1876, P. L.. 124, the councils were authorized to appoint assessors; and by section 2 it was provided : “ That said board of assessors shall make an assessment of all the subjects of taxation now'by law, or hereafter made, subject to taxation for city purposes, and shall take, as the basis of such assessments, the assessments as returned, by the ward assessors of the several wards of the city, to the County Commissioners of the county in which said city is situated ; and shall have power to revise, equalize, or alter such assessments by increasing or reducing valuations, either in individual cases or by wards or parts of wards, to add to such' lists of assessment any subject of taxation subject to taxation as aforesaid omitted therefrom, and attach a valuation thereto.”</p> <p>6. The property against which the lien is filed in this case has not been assessed for county purposes. The Citizens’ Passenger Uaihvay Company, the defendant, was incorporated by an Act of Assembly, approved the 22d day of March 1859, P. L. 203, with power to lay out and construct and operate a railway from the intersection of Fifth and Liberty streets, and along Penn avenue, Greensburg Pike, and Butler street, in Borough of Lawrenceville, and the Lawrenceville and Sharps-burg Turnpike, to Sharpsburg, and with the right to purchase, take, and hold all such real and personal property as may be necessary and convenient to enable them to carry on the traffic of their said road. Section 9 is as follows: “The said railway company shall not be permitted to use and occupy any of the streets of the said city for the purposes of their railway, until the consent of the city councils is first thereto had, by ordinance duly passed ; nor shall the said company at any time alter or change the grade or line of any street without the consent of councils first had and obtained ; and the said company shall keep so much of the streets of said city as may be used and occupied by them in perpetual good repair, from curb to curb, at the proper expense and charge of the said company. Provided, further, that the said company, for and during the first five years after they shall commence running cars upon said road, shall pay into the city treasury,’ for the use of the city, the sum of twenty (20) dollars per year for each car run over the said road ; and for and during the five years next ensuing, the sum of thirty (30) dollars per year for each car, as aforesaid; and from thence, thereafter, the sum.of. forty doldollars per year for each car run over said road ; and also, for the first five years after they commence running cars upon said road, the said company shall pay into the city treasury, for the use of said city, three per cent, of the dividends or net profits of said company; and from thence, and thereafter, the said company shall pay into said treasury, for use of said city, five per cent, of the dividends or net profits of said company.” Section 10 provided that they should not occupy any street or road of the borough of Lawrenceville, or of any incorporated company, without the consent of said corporation, and upon failure to agree, then upon terms to be fixed by court.</p> <p>7. The consent of all the authorities was duly obtained except the borough of Lawrenceville, as to which a decree was made by the court of Quarter Sessions of Allegheny county,-at March session, 1859 Eo. 11.</p> <p>The consent of the city of Tittsburgh was given by ordinance of April 14th 1859. Among the conditions are the following : (1.) To pay into the city treasury, for the use of the city, within one month after the cars commence running on said road, and at the same date annually, the sum due said city prescribed in section 9 of said Act of Assembly, for each car run over said road, viz., twenty dollars per annum for each car for the first five years from the date of the first payment; thirty dollars per annum for each car for the next five years thence next ensuing; and forty dollars per annum for each car thereafter run over said road ; but this shall not be held to apply to cars used on extraordinary occasions, such as holidays and fair days, or to cars reserved for use in case of accident or damage to others ; and the cars shall be numbered as drays and carriages are now numbered under the ordinance regulating licenses on such vehicles. (3.) To pay into the city treasmy, for the xise of the city, on the thii'd Monday in January and July, in each year, for the fix’st five years after they commence running cax’s upon said road, three per cent, of the net profits of said company ; and thence, thereafter, upon the same days in each year, five per cent, upon the net profits of said company. (5.) To keep that portion óf the streets through which the said road may pass in good repair, fi’om curb to curb, subject to the directions, of the l’ecoi'ding l'egulatox’, with privilege to appeal, in case of any disagreement with said regulatoi', to the committee on streets, whose decision shall be final; and any failure to comply with any of the foregoing conditions shall be held to woi’k as a revocation of the consent and piivileges gi'anted by this ox’dinance.</p> <p>8. The railway was constructed in pursuance of the authority gi'anted by the Act of Assembly, and oi’dinance, decree, and agi'eements aforesaid, and has been since operated under them. ...</p> <p>9. The charter of the Citizens’ Passenger Railway Company was the first granted for a road within the city of Pittsburgh, and all other charters subsequently granted contained similar provisions for taxes upon cars and dividends on net earnings, and repairs of streets.</p> <p>The property, upon which the taxes claimed in this case were assessed, was purchased and is now owned by the defendant corporation in fee simple; is used wholly and solely for the purpose of stabling horses of said company, anfi is indispensable to the operation of said railway and the exercise of the public franchise granted to said company by its charter.</p> <p>POINTS SUBMITTED IN WRITING.</p> <p>Counsel for defendant asks the court to find, as matter of law: *</p> <p>1st. That the word “ real estate,” as used in laws imposing taxation, does not include real property owned by corporations, and used by them in, and necessary for, the exercise of their corporate franchises; and therefore the Act of January 4th 1859, under which the city of Pittsburgh claimed the right to impose tax upon the property against which the lien in this case was filed, did not authorize the imposition of said tax.</p> <p>2d. That the word “ railroad,” in the Act of January 4th 1859, did not include passenger railways, the construction of which was subsequently authorized, and upon which special taxes were imposed for city purposes.</p> <p>3d. That the Acts of March 28th 1872, P. L. 606, and May 5th 1876, P. L. 124, limited the right of taxation for city purposes to property liable to assessment for county purposes; and it appearing that the property against which the lien in this case was filed was not assessed for county purposes, and it not appealing that it was by law assessed for county purposes, the authorities of the city of Pittsburgh were not authorized to make the assessment of taxes now claimed.</p> <p>4th. That the property against which the lien in this case was filed, being necessary for the exercise of the franchises of the defendant corporation, cannot be sold upon a judgment against it ; and the proceeding in this case being in rem, the plaintiff cannot recover in this suit.</p> <p>OPINION OF THE COURT.</p> <p>The views expressed in city of Pittsburgh v. Pennsylvania R. R. Co., No. 584, March Term 1883, control this case, unless the charter of defendant, or some other special circumstance, will withdraw it from the effect of the conclusions there arrived at.</p> <p>There are some apparent differences in the status of the two cases. The most obvious are, that defendant is incorporated under the name of “ railway ” company. It was not in existence at the date of the Act under which plaintiff claims the right to tax, and it was, and is now, compelled to pay a perpetual tax to the city for the privilege of using the streets, and also a yearly tax on dividends. Will any or all of these jnstify the conclusion that the Act does not comprehend the defendant? We think not. While there is a popular understanding that the expression ‘^passenger railways ” does not mean the great lines of road operated by steam power, yet it by no means follows that the term “ railroad ” does not properly include all passenger railways, for purposes of taxation. A railway is essentially a railroad. They mean the same thing, and are used indiscriminately in reference to our great inter-state lines. We have the Penn’a Railroad Co., and the Pittsburgh, E. W. & C. Railway Co. Nothing in defendant’s charter, so far as has been made to appear, will justify me in saying that the term railroad in the Act does not include passenger railways.</p> <p>But it is very strenuously urged that' the defendant should not'be held for all. within the Act, because it is compelled, by other Acts, and ordinances of the city, to pay a tax to the city for the use of its franchises; and that to enforce this claim, would subject defendant to double taxation, and be manifestly unjust. It is true that courts will always seek to avoid such interpretation of a statute as would work injustice or oppression, or as would be in contravention to the general policy of the state; and, in a doubtful case, such considerations are entitled to great weight. But where the statute is unambiguous, and nothing appears showing that the intent of the legislature was different from that indicated by the terms of the Act itself, it is our duty to give it effect, however unjust and oppressive it may be. The remedy is with the legislature, not with the courts. But it does not strike us that the complaint of double taxation is well founded in this case. A tax imposed upon the-real estate of a railroad company used for stables is a very different thing from a tax imposed upon it for the use of the public highways for railway purposes.</p> <p>Upon the whole, we can discover no sufficient reason for making a distinction between this and the case of the railroad company, and are therefore of opinion that defendant is liable to pay the taxes involved in this suit.</p> <p>The points presented by defendant are answered in the fore-, going opinion, and are now specifically refused.</p> <p>And now, July 21st 1883, the foregoing decision of the court directed to be filed in the office of prothonotary, and ordered that judgrnent.be entered thereon by the prothonotary in favor of plaintiff, and against defendant, for the amount of its claim, viz., $693.99, unless exceptions are filed thereto within thirty days after notice hereof; said notice to be given by the prothonotary to the parties, or their attorneys, forthwith.</p> <p>EXCEPTIONS TO THE FINDINGS OF THE COURT.</p> <p>The court erred in not finding, as matter of law:</p> <p>1st. That the word “ real estate,” as used in laws imposing taxation, does not include real property owned by corporations, and used by them in, and necesssary for, the exercise of their corporate franchise ; and therefore, the act of January 4th 1859, under which the city of Pittsburgh claimed the right to impose tax upon the property against which the lien in this case was filed, did not authorize the imposition of said tax.</p> <p>2d. That the word “railroad,” in the Act of January 4th 1859, did not include passenger railways, the construction of which were subsequently authorized, and upon which special taxes were imposed for city purposes.</p> <p>3d. That the Acts of March 28th 1872, P. L. 606, and May 5th 1876, P. L. 124, limited the right of taxation for city purposes to property liable to assessment for county purposes; and it appearing that the property against which the lien in this case was filed was not assessed for county purposes, and it not appearing that it was by law assessed for county purposes, the authorities of the city of Pittsburgh were not authorized to make the assessment for taxes now claimed.</p> <p>4th. That the property against which the lien in this case was filed, being necessary for the exercise of the franchises of the defendant corporation, cannot be sold upon a judgment against it; and the proceeding in this case being in rem, the plaintiff cannot recover in this suit.</p> <p>The court subsequently entered final orders, dismissing the exceptions in all the said cases, and entering final judgment for the plaintiff in each case. The defendants thereupon took separate writs of error in each case, assigning for error, respectively, the action of the court in dismissing the said several exceptions, and in entering judgment in each case for the plaintiff.</p>

2 of Allegheny county: In equity. Of October Term 1883, No. 203.

<p>1. Where a father, being indebted to his married daughter in a certain sum, conveyed certain real estate, in consideration of said sum and of natural love and affection, to her as her separate estate, it not appearing that the property was worth more than the consideration money named: Held, that the grantee took and could convey a good and marketable title in fee simple.</p> <p>2. Whether, if the deed had been a voluntary settlement, it would have created a sole and separate estate in the daughter, not decided.</p>

216. Appeal of Samuel H. McKee from a decree of said court dismissing tbe petition of the administrator d. b. n. c. t. a. of Samuel Henry, deceased, for leave to sell certain real estate.

<p>1. Although tho Statute of Gloucester, 6 Edw. 1, is in force in Pennsylvania, the Statute of 4 & 5 Anno c. 1G, § 21, is not, and therefore a warranty by a tenant by the curtesy, is a bar to the heir, taking, by descent from his warranting ancestor, assets of equal value to the land warranted.</p> <p>2. While-in the United States personal covenants of warranty in deeds, enforceable only in covenant and sounding in damages, have superseded the warranty of the common law; yet such covenants, in analogy to the ancient rule respecting warranties under similar circumstances, preclude the heirs of the grantor, who hold assets equal in value by reason of inheritance from the warranting ancestor, from claiming the land.</p> <p>3. A., a tenant by the curtesy, conveyed lands to B., the deed purporting to convey the fee, and containing the usual covenants of general warranty. Afterwards, A. executed an agreement to C. and D., who were entitled to the fee of the aliened premises as heirs of bis deceased wife, in which, after reciting a deed of release, without consideration, by O. and D., for certain other lands, to which they wore entitled as heirs of their mother, A. covenanted that in consideration of the premises, he would not by “deed, mortgage, sale, judgment-, devise or otherwise prejudice or interfere” with the rights of C. and D., as “his heirs at law ” of their free and equal share of his real estate, “ but that the Same should remain free and uncontrolled to bo divided among all his legal heirs, including the said” O. and D. Subsequently A. made a will by which he directed bis real estate to be divided equally among his heirs. At A.’s death, C. and D., who, as his heirs, took assets to a greater value than the land conveyed to B., brought ejectment against B. for said land. Held,</p> <p>(1) That, although a consideration was expressed therein, the agreement was a covenant by A. to stand seised to the use of his heirs, based upon natural love and affection, in view of which his will was of no effect.</p> <p>(2) That at A.’s death his heirs took his realty as heirs, according to the terms of the agreement, and that the lands thus taken must be regarded as assets, in the hands of said heirs, derived from their warranting ancestor by inheritance; and, therefore, that said agreement did not prevent O. and D. from being estopped to deny the covenant of warranty made by A. in his deed to B.</p>

1 of Allegheny Goionty: Of October and November Term 1883, No. 222- A writ of alternative mandamus was issued at the relation of the attorney general, reciting that a portion of a certain public highway, had been entered upon, occupied and obstructed by the construction of the defendant’s railroad, and requiring the defendant to cause the same to be reconstructed on the most favorable location, etc., or show cause, etc. The defendant filed an answer, which was ordered to…

1 of Allegheny county: In equity. Of October and November Term 1883, No. 210. This was a suit in equity for partition, wherein Clarence M. Johns and Leonard M. Johns were complainants, and Mira II. Johns, widow, and the said Mira II. Johns, guardian of Cora, Blanche, Imogene, Estella and Herbert A. Johns, heirs of Leonard S. Johns, deceased, defendants.

2 of Allegheny county^: Of .October and November Term 1883, No. 218. Feigned issue, wherein George K. Lauman, administrator d. b. n. c. t. a. of William Scott, deceased, was plaintiff, and Andrew Scott was defendant, to determine whether the right to a certain sum of $4,000 passed to the defendant by the following indorsed certificate of deposit. No. 2,432.

2 of Allegheny county: In Equity. Of October and November Term 1883, No. 223. This was an appeal by William McQueen from a decree of the said court, sustaining a bill in equity, wherein Henry C. Oakley was plaintiff, and William McQueen and Eliza M. McQueen were defendants. The bill averred : 1. That A. D. Dean and David Pentz gave the plaintiff, TIenry C. Oakley, two promissory notes for $200 and $125 respectively, drawn to his order. ! 2.

Ekeok to the Court of Common Pleas No. 1 of Allegheny county: Of October and November Term 1883, No. 105. Case, by Margaret J. French, widow of William French, deceased, for herself and for Jennie French and Ella M. French, minor children of said William French, deceased, against Samuel S. Brown and others, partners, doing business under the name of William II.

1 of Allegheny county, sitting in Equity : Of October and November Term 1883, No. 230. This was an appeal by George Socher from a decree of the said court, directing him to deliver to Catharine Hauber, Philomena Hines and others, deeds for and the possession of, certain tracts of land, which were declared by the said decree to beheld by Socher in trust for Catharine Hauber et ah, and also directing him to pay to said Catharine Hauber et ah, the sum of $2,700.65.

172. The record showed the following: G. B. Seely and eleven others presented a petition to said court, setting forth that they were “ property owners and freeholders in the vicinity ” of a- “ certain alley without a name, situate in the Nineteenth Ward, City of Pittsburgh, laid .out and located in Isabella Beatty’s plan of lots in said ward, iii which said alley . . . was dedicated to public use,” that “ said alley is of no public use to those owning lands abutting…

2, of Allegheny county: Of October Term 1883, No. 215. This was an action of ejectment brought in 1881 by Charles C. Miller against Michael McCullough, Jr., and the Pittsburgh and Western Railroad Company, for a piece of land containing about four acres, situate in the Eighth ward of Allegheny city (formerly Duqnesne borough), on the bank of the Allegheny river. Both parties claimed through one Benjamin Ilerr.

1 of Allegheny county: Of October Term 1883, No. 220. Assumpsit, by John Bardsley against George Lysle and Addison Lysle, executors of George Lysle deceased, to recover the sum of $2,035.34 #vith interest from August 4th 1877, being the balance of plaintiff’s deposit, at that date, with The Allegheny Savings Bank ; a partnership of which George Lysle. .was, previous to his death, a member.

228. This was an appeal by Eranklin Osbnrn - and D. N. White, executors of the last will of Griswold E. Warner, deceased, from a decree of the said… Held: in an opinion filed, that the testator intended to divide his residuary estate equally between Harry G. McCartney on the one part and the children of Mrs. Osburn on the other, each class to share and share alike. He therefore entered a decree restraining the executors from distributing the estate in any other proportions.