Volume 105 — Pennsylvania State Reports

11. Indictment of Sabato Alexander, alias “ Jamie,” for the murder of Pietro Phillippe, alias “Peter.” The prisoner, when called for… Held: inter alia, the following language : “ If the Commonwealth has satisfied you that the defendant inflicted the wounds on the body of the deceased, and that he died from said wounds, then your next inquiry will be whether the Commonwealth has satisfied you beyond a reasonable doubt that the defendant is guilty of murder, and if so, of…

217. Also Certiorari to said. Court: Of October Term, 1884, Ho. 15. These two cases were argued together.

1 of Philadelphia county: of January Term 1883, No. 209. Scire facias sur municipal claim, by the city of Philadelphia against William Wolf for $60, being an assessment for building a sewer against property situate on the north side of Fourth street in the city of Philadelphia. By writing filed the same day the writ was issued Jacob Schoening was suggested as the -“actual and present owner” of the premises.

10. Appeal by Martha Burkholder from a decree of said court, dismissing her exceptions to the adjudication upon the audit of the account of the administratrix of the estate of Richard J. Rutter deceased. Before the auditing Judge the following facts appeared: The decedent, Richard J. Rutter, and his wife were married about the year 1834.

2 of JPhiladelphia county: Of January Term, 1883, No. 408. Case, by John Brophy against the Germantown Passenger Railway Company, to recover damages for personal injuries sustained by the plaintiff while riding in a passenger car on the defendant’s street railway, caused, as alleged, by the negligence of defendant’s servants. Plea not guilty.

1 of Philadelphia county: of July Term, 1883, No. 13. Case, by Eugene Kibele against the City of Philadelphia, to recover damages for injuries sustained by himself and wife, and the loss of personal property, through the alleged negligent maintenance by the defendant of a defective gas main. Plea, not guilty.

2, of Philadelphia county: Of July Term, 1888, No. 8. Assumpsit, by Samuel Bonnell, Jr., against William L. Lance, Jr., upon a draft accepted by defendant. Plea, pajara ent with leave, &c. The record showed the following: 1882. Oct. 18. Jury called. “ 21. Verdict for defendant. “ 28. Jury fee paid, and judgment on verdict. Nov. 20.

<p>1. Upon the insolvency of a moneyed corporation its uncalled and unpaid capital stock constitutes a trust fund for the benefit of all its creditors, and will be administered as such.</p> <p>2. Where such a corporation, incorporated under the provisions of the of April 29, 1874 (P. L., 78), becomes insolvent, a bill in equity will lie-, at the instance of judgment creditors of said corporation to collect such part of the unpaid and uncalled subscriptions to the capial stock as is necessary for the satisfaction of their debts. ,1</p> <p>8. The personal liability to creditors for work or labor done or materials furnished, imposed hy section 14 of the Act of April 29, 1874 (P. L., 78), upon the stockholders of corporations chartered under the provisions of said Act, is not the sole liability which such creditors may enforce for the satisfaction of their debts. They may also, by appropriate process, enforce for their benefit the liability existing on the part of the stockholders to the corporation to pay uncalled and unpaid subscriptions to capital stock.</p> <p>4. The provisions of section 7 of the Act of April 29, 1874 (P. L., 78), as-to the immunities and liabilities of a transferee of stock, are not to 'be-considered as imposing a special liability, but merely as fixing a status. Hence the liability of a transferee of stock to the corporation to pay up> to the par value thereof is not to be regarded as a special liability to be-enforced for the benefit of creditors in the manner specified in section, 15 of the said Act.</p> <p>5. The liabilities to be enforced in the mode pointed out in section 15 of the Act of April 29, 1874 (P. L., 73), are only those .special personal liabilities to pay particular debts created by the other sections of the Act.</p> <p>6. In case of the insolvency of a corporation, unpaid and uncalled amounts due upon the capital stock cannot be attached by a judgment creditor of the corporation by means of an attachment execution; upon insolvency the uncalled and unpaid subscriptions constitute a trust fund, which wiil be administered for the benefit of all the-creditors.</p> <p>7. A corporation incorporated under the Act of April 29,1874 (P. L., 731, became insolvent, and made an assignment for Hie benefit of its creditors ; certain creditors of the company, one of whom was a judgment creditor upon whose judgment a fi. fa. had been issued and' returned “nulla bona,” thereupon filed a bill in equity against the corporation, its assignee and its stockholders, some of whom were original subscribers, and others assignees of the stock. The bill set out the foregoing facts, and also alleged that there were no corporate assets to satisfy their debts, and that forty per cent, remained uncalled and unpaid on the capital stock of the corporation. The bill prayed for an account; an assessment upon the stockholders of such part of the sums remaining due upon their capital stock as would .pay complainant’s claims in full; a decree that such sums be paid; and the appointment of a receiver:</p> <p>Held, that the bill in equity was properly framed and used, and that complainants were .entitled to the relief sought.</p>

<p>1. Where a person receives a chattel for a specified time, and agrees to pay for its use, and, further, to purchase it during or at the expiration of said period, the contract is one of bailment and not of sale.</p> <p>2. As such a contract does not vest any title in the bailée at the time possession of the chattel is delivered to him thereunder, it is not void as against his creditors under the Statute of Fraudulent Conveyances.</p> <p>3. A. leased to B. certain machinery for one year at a specified rental. He agreed to sell to B. the said machinery at the expiration of the lease for a stipulated price, and B. agreed to purchase it at that time. B. further agreed that at any time, on thirty days’ notice from A., he would purchase the machinery for the said price; that if he failed to do so A. might sell the machinery at any time thereafter, and should the proceeds of such sale be less than the price aforesaid, B. would pay A. the amount of the deficiency. B. entered into possession, and C., one of his creditors, levied on the machinery as his property. In a feigned issue between A. and C. to determine their respective rights in said property:</p> <p>Held, that die agreement constituted a bailment and not a conditional sale; that in the absence of collusion between A. and B. it was not void as against C. under the Statute of Fraudulent Conveyances ; that A. was therefore entitled to recover.</p>

38. This action was originally begun in foreign attachment, by Mary King against Thomas Bolton, Heuiy Bolton and John Bolton, trading or late trading as The Bronx Company. Upon the entering of security the attachment was dissolved and the suit proceeded in -assumpsit. The narr. as originally filed, claimed to recover against the above named defendants the sum of $400, with interest from July 3, 1877, upon the following note:— $400. New York, July 3, 1872.

3, of Philadelphia county: Of July Term, 1883, No. 58. Assumpsit, by J. Charles Dicken against Emma M. Perry. The narr. consisted of the common counts.

<p>EmtOB. to the Court of Common Pleas, No. 3, of Philadelphia County: Of January Term, 1883, No. 378.</p> <p>Ejectment, by Emma Hitchins, a minor, by her father and next friend, Robert J. Hitchins, against Albert Webb, and James Penn McCaim, guardian ad litem of Eugene Webb and William Webb, minor children of said Albert Webb and Anna Webb, late Anna Warner, for a lot of ground on Mary street, in the city of Philadelphia.</p> <p>Subsequently, upon the suggestion of the death of Emma Hitchins, Robert J. Hitchins was substituted as plaintiff.</p> <p>The parties submitted to the Court the following case stated:</p> <p>“Both parties claim under the will of Sarah Warner, who died seised, inter alia, of the premises in dispute. The will was proved January 28, 1867, and bontained the following clause:</p> <p>“Item.' — I give, devise and bequeath unto my daughter, Anna Webb, late Anna Warner, my messuage and lo.t of ground situate on the north side of Mary street above Front street, for and during all the term of her natural life, she paying the taxes and water rent and keeping the same in good condition and repair, and from and immediately after the decease of my said daughter, I give, devise and bequeath the same unto her daughter, Sarah B. Loag, in fee simple, and, in case of Sarah B. Loag’s death, then to be divided amongst the children.”</p> <p>Testatrix left surviving her one son, William Warner, and three daughters, viz., Elizabeth Drinkhouse, wife of William Drinkhouse; Emma Martin, wife of Joseph B. Martin; and Anna Webb, wife of Albert Webb. Anna Webb had a daughter by a former marriage, viz., the Sarah B. Loag mentioned in the will. At the date of the will she had no children by Albert Webb, but was enceinte, which was known to testatrix, and between the date of the will and the death of testatrix a child by this marriage, viz., Eugene Webb, was born, and after testatrix’s death another child, viz., William Webb, was born. After testatrix’s death Sarah B. Loag married Robert J. Hitchins, and afterwards, on December 10, 1873, during the lifetime of Mrs. Anna Webb, the life tenant, died, leaving her surviving husband and one child, Emma E. Hitchins. On March 6, 1874, Anna Webb died, leaving surviving her husband, Albert Webb, who is still living, and two children by him, »viz., Eugene Webb and William Webb, already mentioned, both of whom are still living. Albert Webb and. the two children above named, viz., Eugene Webb and William Webb, took possession of the land in dispute upon the death of Anna Webb, and have continued to-occupy it ever since. On August 29, 1881, Emma E. Hitching died in her minority, intestate, unmarried and without issue, leaving her surviving her father, Robert J. Plitchins, who is still living. All of the children of Sarah Warner, except Anna Webb, are still living.</p> <p>Upon this case stated, judgment was entered by the Court for the plaintiff. Whereupon the defendants took this appeal, assigning for error said action of the Court in entering judgment for the plaintiff:</p>

<p>1. No amendment can be allowed, tbe effect of which is*eith,er to introduce a new cause of action, to deprive the opposite party of any valuable right, or injuriously to affect intervening rights of third parties.</p> <p>2. An error in a praecipe and writ of scire facias to revive a judgment, by reason whereof the lien of the judgment expired, cannot be corrected by amendment so. as to restore said lost lien, to the prejudice of a judgment creditor whose judgment, originally second in lien, has, by such expiration, become by operation of law the first lien. Such judgment creditor has the same right to object to such an amendment as a creditor or purchaser would have who obtained a judgment or made a purchase after the expiration of the lien of the prior judgment.</p> <p>3. A. held two judgments against the same defendant, which constituted the first and third liens on the defendant’s real estate. B. also held a judgment against the same defendant, which was the second lien. A.’, intending to revive his first judgment, by mistake recited in his proscipe tiie term and number of his other judgment, third in lien. The scire facias to revive likewise recited that term and number and was thus docketed. Subsequently, after the lien of the first judgment had expired, and during the pendency of the scire facias, A. took a rule to amend his praecipe and writ, so as to recite the term and number of his first judgment, alleging that it was by a clerical mistake he had inserted the wrong term and number in his prcecipe. This rule, not being objected to by the defendant in the judgment, was made absolute. Subsequently, on the application of B. the order of the court was modified, so as not to operate to the prejudice of B. Held:</p> <p>(1.) That as both the pnecipo and writ were regular on their face, and accurately described an existing judgment, there was nothing oil the record to amend by.</p> <p>(■J.) That the amendment could not be allowed to the prejudice of B., whose judgment, upon the expiration of the lien of A.’s first judgment, had by operation of law become the first lien.</p> <p>4. Whether the lien of a judgment has been kept alive and remains in force must be determined by an inspection of the record. If the record does not show its existence, it is lost.</p>

Appeals from and writs of error to the Court of Common Pleas. No. 4, of Philadelphia county: Of July Term, 1883, Nos. 59, 60, 61 and 62.

<p>1. A stockholder in a private corporation, who is denied access to corporate records and information as to corporate affairs, may, in certain cases, have a mandamus to compel the production of such books and papers as are essential to him for some proper and definite purpose, such as an accurate ascertainment and legal assertion of his rights as a stockholder.</p> <p>2. A. filed a petition for an alternative mandamus against a corporation and the directors thereof, alleging that he held a large amount of the stock, that the works were extensive and the business prosperous, that, notwithstanding, no dividend had been declared for nine years; that the principal part of the company’s business had been absorbed by a partnership, whereof the president of the company and two of its directors constituted a majority of the partners; that there was a contract of partnership between the company and said firm, whereby the said president and directors took advantage of their position to advance their private interests to the disadvantage of the corporation, and that the corporation had transferred real estate to trustees to secure an alleged indebtedness to the estate of a former president, the trustees being interested in said estate; that at a meeting of stockholders of the corporation, as well as at other times, relator had asked for information, which requests had always been refused, and that he proposed filing a bill in equity against the corporation and its officers, for which purpose it was necessary that he should see the books and papers in order to state the facts correctly.</p> <p>Held: That the writ should issue for the production of such books and papers as contained information upon the subject specified in the prayer of the petition.</p>

100. This was an appeal by William B. Wilen, John Wilen, Mary Ann Gifford and Robert O. Brodie, Jr., administrator of Susanna Banes, deceased, from a decree of the said court sustaining the exceptions of Mrs. Emily S. Hales to the adjudication upon the second account of Thomas Banes, executor of George S. Wilen, deceased.

1 of Philadelphia county: In Equity: of July Term, 1888, No. 104. This was an appeal by William N. Yeaton and Wharton E. Harris, trading as Yeaton & Harris, and Ell wood Thompson from a decree of the said court, enjoining them from the erection of a certain wall, as prayed for in a bill in equity, wherein they were defendants and the City of Philadelphia was' plaintiff.

<p>Three Appeals of Benaiali S. Hunt, remaining executor and trustee under the will of John H. Jones, deceased, from the decrees of the Orphans’ Court of Philadelphia, awarding distribution of the estate of said John H. Jones, deceased : Of July Term, 1883, Nos. 41, 213 and 214.</p> <p>Appeal of Edwin W. Lehman and John L. Buzby, trustees of the estate of William Crean, deceased, from the same decrees : Of July Term, 1883, No. 120.</p> <p>Appeal of Emily Lehman from the same decrees: Of July Term,T883, No. 121.</p> <p>These five separate appeals were argued together, and involved the same facts. John H. Jones died September 21, 1874, having appointed Benaiah S. Hunt and George N. Watson executors of his will, in which he gave them the following power of sale:</p> <p>“ First. To sell all or any part of the real estate, without liability on the part of the purchaser "to see to the application of the purchase money, and the proceeds of sale to reinvest from time to time, if practicable, in irredeemable ground rents, upon the same trusts......And thereby authorize and empower them, and the survivor of them, to sell and dispose of all or any part of my estate, real or personal, for the payment of my debts and the legacies which I have given, without liability on the part of the purchaser to see to the application of the purchase money.”</p> <p>The decedent, at the time of his death, was seised and possessed of real and personal estate of large value, and was heavily indebted. His executors filed an account in 1878, which was referred to E. Coppée Mitchell, Esq., as auditor, who filed three reports upon it. Subsequently, the executors sold some of the decedent’s real estate for the payment of debts, and the same auditor was appointed to distribute the fund.</p> <p>From the several reports of the auditor it appeared that in December, 1873, the decedent, John H. Jones, agreed to purchase from Edwin W. Lehman and John L. Buzby, trustees of the estate of William Crean, deceased, two lots of ground in the twenty-fourth ward, one of them situate at the north-east corner of Eadline and Forty-fifth streets, for the purpose of building upon them, and at his request the said trustees conveyed the property to one William S. Kite in fee, by deed dated December 27, 1873. The whole purchase-money of this lot was secured by eight purchase money mortgages bearing even date with the deed, each to secure the payment of $1166.67, with interest, said lot being subdivided into eight smaller lots, one of which lots was described in eachi of said mortgages. The other lot, purchased at the same-time by the decedent from the claimants, was situated on the east side of Forty-fifth street at the distance of seventy feet south of Seneca street, and was also conveyed to the said Kite, the whole consideration being secured by two bonds, and mortgages given by Kite to the claimants, each of said mortgages being for $1020.83, and secured upon a piece of' said lot.</p> <p>On December 31, 1873, the said William S. Kite and wife,, by deed of that date, conveyed the said lots of ground to Edwin M. Hunt and J. Dallas Hall in fee, subject to the payment of the ten above-mentioned mortgage debts.</p> <p>On January 22, 1874, the decedent entered into a written agreement with the claimants, in which the transactions above-mentioned are recited, and the said John H. Jones covenanted, and agreed: “ To be responsible for, and guarantee the payment, of the interest upon each of the said ten several indentures, of mortgage above mentioned, as the same shall accrue unto the said Edwin W. Lehman and John L. Buzby, executors, and trustees as aforesaid, until such time as the lot or subdivision of said larger lots shall be improved to fully secure the mortgage debt thereon secured.”</p> <p>This agreement was signed and sealed by the decedent.. The lots of ground described in the agreement have not been improved up to the present time.</p> <p>In 1874, Jones made an agreement, exactly similar to the-above, with Emily Lehman, which recited the purchase from. her, by Jones, of a lot' on Transcript and Forty-fifth streets ; a conveyance by her to Kite, dated July 6, -1874; seven mortgages by Kite to her, of even date, one for $1458.33, five for $1166.67 each, and one for $875, with interest thereon payable half-jmarly; and Jones covenanted to pay the interest in the same words as those contained in his covenant with Lehman and Buzby (supra).</p> <p>Upon the above facts arose the question in—</p> <p>Hunt’s Appeal, July Term, 1883, No. 41.</p> <p>In the distribution of the personal property, the said Lehman and Buzby, trustees, etc., presented a claim for interest on their mortgage up to January 1st, 1883, amounting to $5,460, under the covenant of decedent, to be responsible for the same; a similar claim for $3,820 was presented in behalf of Emily Lehman.</p> <p>These claims were objected to by the accountants:</p> <p>“ 1. Because neither Jones nor his executors have any power to comply with this covenant to build by improving these lots which were conveyed to Kite and are now vested in strangers.</p> <p>“2. -Because in that view of the case, the covenant is a perpetual covenant, which does not bind the estate of a decedent, except as to the land expressly pledged for it.</p> <p>“3. That since the claimants have two funds from which to get their money, they ought to exhaust the mortgaged premises upon which they have a first lien, before they can come here to disappoint other creditors of the general estate.”</p> <p>The auditor overruled the first of these objections on the ground that the conveyances tc Kite, Hunt and Hall, having been made before the execution of Jonps's covenant, were made with the knowledge of Jones, if not by his direction; and that he could not by a voluntary conveyance escape the consequence of his express covenant. As to the other objections he reported as .follows:</p> <p>“ 2. The second objection presents a more serious question. In support of it Mr. Olmsted cited Quain’s Appeal, 10 Harris, 510; Williams’ Appeal, 11 Wright, 283. Quain’s Appeal, which has since been affirmed and adhered to by the Supreme Court,-was the case of a ground rent, in which it was held that the executors of-a deceased covenantor in a ground-rent deed are no.t bound.to pay, out of assets in their hands, ground-rent accrued after his death, the reason given being that the cove: nant to pay rent is a perpetual one, which would forever prevent .the settlement of the estate, and make the office of executor as perpetual as itself. Subsequently the District Court of Philadélphia, in a learned opinion by Judge Stroud, decided that suit might be maintained against an administrator upon the covenant of his decedent for. ground-rent accrued' since his death, but that the judgment should be restricted to the land out of which the ground-rent issued. Gardiner v. Painter, 3 Philadelphia Reports, 365, which was afterwards approved by the Supreme Court in Williams’ Estate, 11 Wright, 283, in which case, after a vigorous assault by eminent counsel upon the doctrine of Quain’s Appeal, it was reasserted in the most positive terms. .....</p> <p>“It only remains to be determined whether the principle of Quain’s Appeal is to be extended to cases of covenants in instruments other than ground-rent deeds. There is a well-established principle that the representatives of a deceased contractor or covenantor are not liable for breaches of a promise which was so entirely personal to himself that it could not have been contemplated that any one else could or should perform it, as a contract to paint a picture or write a book, or to do some act where the skill of the contractor was an element in the making of the contract. Performance of such contracts becomes impossible when the party to fulfil them dies, and in such cases the personal representatives are not bound. Dickinson v. Calahan, 7 Harris, 227; Bland’s Adm. v. Umstead, 11 Harris, 316. But where the contract or covenant is for the payment of money, a different case is presented. As was said by Thompson, J., in White’s Ex’r. v. The Commonwealth, 3 Wright, 176, ‘ A contract to pay money, although it falls due after the decease of the obligor, does survive. And what is the difference between an agreement to pay at a future period or on a future contingency ? The contract is to be completed, not by any personal performance, but by the payment of money. This act an executor can do as effectually as the testator, and it cannot therefore come within the rule of the cases cited.’</p> <p>“ The point in the ease now .under consideration which makes it more closely resemble Quain’s Appeal, is the circumstance that the covenant here may be a perpetual one. It is to pay the interest until the mortgaged lots are so built on as to secure -the mortgages. And as the lots are not yet built on, and may never be, it follows that the covenant may endure forever, and the liability to pay may in this respect resemble a yearly ground-rent payable semi-annually. But there is this difference between a covenant to pay ground-rent and the covenant in question here, that the personal covenant to pay the rent is only a collateral security, the ground-rent being a real incumbrance, and the land being the main reliance of the landlord out of which to get his rent, so that, as C. J. Gibson observed in Torr’s Estate, 2 Rawie, 252: ‘ It is impossible to put a ease in which the land is more obviously or more conclusively the principal debtor.’ The covenant now under consideration was evidently made for precisely the opposite reason —namely, that the mortgagees were unwilling to look to the land exclusively for the interest upon their money until it had been built upon, and thus not only increased in value but in a situation to produce income out of which the interest might be paid.</p> <p>“The land was a vacant lot, the-whole consideration was secured by the mortgages, and the claimants evidently considered Mr. Kite’s bond as affording them little or no protection, so that although the mortgages were security for interest as well as principal, yet it cannot be said that the claimants mainly relied upon them for the payment of the interest which was claimed here.</p> <p>“ While the case is not free from difficulty, the auditor has come to the conclusion that Quain’s Appeal can not be considered as an authority to rule it, and this objection also is not sustained.</p> <p>“ 3. The third objection of the executors must be sustained. It is a well-settled and familiar principle of equity that a creditor who has a lien on two funds, shall not take satisfaction in a way to disappoint another who has a lien on but one. The mortgages of the claimants are security for interest as well as principal, and under the ruling in Gould’s Estate, 6 W. N. C., 562, the claimants should first exhaust the security which they have to themselves, by bringing suit upon their mortgages, before they can claim upon the general fund, which is the only resource of the general unsecured creditors.”</p> <p>. Exceptions were filed to this report, and the conclusions of the auditor as to the first two points were sustained by the court. The exceptions on the third point, however, were sustained. The court filed the following opinion:</p> <p>“ The auditor has very clearly shown that the principle of Quain’s Appeal (10 Harris, 510), which restricts liability for ground-rent falling due after the death of the covenantor, to the land out of which it issues, cannot be extended to a mere personal covenant not running with-the land, for thé payment of money. If the law were as contended by counsel for the accountant, every contract for the payment of money not falling due within a year from-the-death of the contractor, would, as a logical consequence, be of nbvalidity. The case of White’s Executors v. Commonwealth (3 Wright, 171), cited by the auditor, and the provision in the act of February 24th, 1834 (Purd. Dig., 422, § 24), continuing the lien of debts not maturing within five years after the death of the debtor, fully sustain his views upon this subject and the exceptions to the proof of the debts of Edwin W. Lehman, executor, and Emily Lehman, are overruled.</p> <p>“ It was error, therefore to exclude these creditors from the distribution. The principle which permits a creditor having a lien upon one fund to compel a creditor having a lien upon two to proceed in the first instance against that which he alone can resort to, does not apply where, as here, the two funds do not belong to the common debtor. (Conser’s Appeal, 11 W. N. C., 220.)</p> <p>“But under any circumstances, it cannot be right to appty the principle so as to deprive the creditor having the right to two funds of any participation whatever in one of them. The mere statement of this proposition is sufficient to show the error which the auditor has fallen into in this respect. (See Mason’s Appeal, 8 Norris, 402). Gould’s Estate (6 W. N. C., 5(*2), which he has cited, is not to the point. It is not the case simply of creditors, nor was there any exclusion from the fund; distribution was simply suspended for four months, with directions to the creditor (which were complied with) to proceed in the meanwhile against the mortgaged premises.”</p> <p>The executor thereupon took this appeal, assigning for error:</p> <p>1. The court below erred in not holding that the claim of Edwin W. Lehman et al., trustees, and of Emily Lehman should be confined to the land on which the mortgages were liens.</p> <p>2. The court below erred in allowing said elaim to be paid out of the funds of the estate generally.</p> <p>3. The court below erred in not deciding that after the death of John H. Jones no elaim for interest on the mortgages eould be paid out of any fund or property except the land mortgaged.</p> <p>Appeal of Edwin W. Lehman, Trustee, &c., July Term, 1883, No. 120.</p> <p>Appeal of Emily Lehman, July Term, 1883, No. 121.</p> <p>Appeals of Benalah S. Hunt, Executor, &c., July Term, 1883, Nos. 213 and 214.</p> <p>After filing their account of the decedent’s personal estate, the executors made sale of certain real estate to pay debts, and paid the proceeds into court for distribution. The auditor found that on December 1st, 1876, suit was begun by Lehman et al., trustees, etc., against Hunt et al., executors, and service of the writ was accepted. No further proceedings were had in the suit until January 10th, 1883, when a narr. and bill of particulars were filed. The narr. set out the above-mentioned covenant of the decedent, and ‘that the plaintiff had accepted the mortgages upon the faith of said covenant; the death of John H. Jones, and the appointment of the defendants as his executors; the usual allegation of performance by the plaintiffs of their covenants, and the usual general averment of breach. On January 25th, 1883, the defendants pleaded “ covenants performed absque hoe, with leave,” etc. On January 4th, 1883, another suit was begun, service accepted, and a narr. and pleas in all respects similar to those in the first case were filed. Similar suits were instituted by Emily Lehman, and were, mutatis mutandis, the same as above. All oí these suits were, inter alia, for interest accruing subsequently to decedent’s death. The claim was made that “ the bringing of the suit within five years continued the lien of the indebtedness due, and to' become due upon the covenants, upon the real estate of the decedent indefinitely, or at any rate, until a presumption of payment would arise from lapse of time.”</p> <p>The auditor reported upon this question as follows: *</p> <p>“ The second suit brought by Mr. Carty, having been commenced more than five years after the death of John H. Jones, deceased, is without any effect whatever upon the lien, and that if, as claimed by Mr. Carty, the lien of the indebtedness created by this covenant is to be continued against the real estate of the decedent for a longer period than five years from his death, it must be by means of the effect of the first action, which was commenced on the 1st of December, 1876.</p> <p>“ The auditor is of opinion that the first suit brought by Mr. Carty continued the lien against the real estate of the decedent of the debt which was then sued fori Inasmuch as the only debt due by the estate of the decedent to the plaintiffs was the amount due under this covenant, and it was known to the executors and their counsel that the suit was brought for the interest which had become due under this covenant, the real estate of the decedent is bound for all that is then sued for. But nothing could have been sued for at that time but the instalments of interest upon those mortgages which had accrued before the date of the suit, and remained unpaid. The bill of particulars shows that there was due at that time interest upon these mortgages, as follows:</p> <p>1875. July 1. Six months’ interest,.............. $341 25</p> <p>1876. Jan. 1. “ '“ “ 341 25</p> <p>1876. July 1. “ “ ' “ 341 25</p> <p>Total,.......i...................... $1,023 75</p> <p>“As to the instalments of interest upon the mortgages which have become due since the suit was brought, the auditor finds nothing upon the record to continue their lien.</p> <p>“The Act of Assembly of 1834, § 24, Purdon’s Dig.', 422, pi. 88, provides two ways in which the lien of debts of a decedent can be continued upon his real estate for a longer period than five years after his death. First, by the commencement and prosecution of an action against his heirs, executors, or administrators, within the period of five years from his death; and second, where the debt is not payable within five years, a copy or particular written statement of the bond, covenant, debt, or demand, shall be filed within the period of five years in the office of the prothonotary of the county where the real estate to be charged is situated.</p> <p>“It seems, then, that under this statute the creditor of a decedent, if his debt is due and payable, is bound to commence his action within five years or lose his lien; and for such debts as are not due and payable, the creditor is bound to file a copy or particular written statement of the instrument of writing by which the debt is secured within the period of five years. So far as the debt was due at the time the suit was brought, in the opinion of the auditor, this suit continued the lien, but it was the duty of the claimants to file a copy or statement of the covenant within the five years, if they desired to continue their lien upon the decedent’s land for the interest not yet accrued. No such statement has been filed. The fund in court is the proceeds of real estate sold nearly eight years after the decedent’s death. The auditor is, therefore, of opinion that the claimants have no lien upon the fund except for the debt for which suit was brought. This claim is, therefore, allowed to the extent of $1,023.75, and the balance of the claim is disallowed.”</p> <p>Exceptions were filed to this report and dismissed by the court. (No opinion filed.) Both parties then took these several appeals, and the claimants, Lehman et ah, assigned for error, in brief:</p> <p>1. Tiie decision that the second suit had no effect in keeping alive their lien.</p> <p>2. The decision that their first suit only continued the lion of interest then due.</p> <p>3. The decision that to continue their lien for interest to accrue in the future the claimants should have filed a copy or statement of their covenant.</p> <p>4. The court erred in not deciding that, in view of the default of the decedent, and his executors, after his decease, in not fulfilling the covenant by improving the lots, and that the action commenced in 1876 was a full knowledge, notice and demand to the executors of the nature and character of the continuing claim, and that such action having been brought within five years after the decedent’s death, it continued' the lien of the covenant for ten years, and that, therefore, claimant is entitled to an allowance for all interest accruing under the covenant within the period of ten years after his decease.</p> <p>And the accountant assigned for error:</p> <p>“ 1. The court below erred in not holding that the claims of Emily Lehman and of Edwin W. Lehman' and John L. Buzby, executors and trustees under the will of William Crean, deceased, should be confined to the lands on which the mortgages held by them were liens.</p> <p>“2. The court below erred in holding that the bringing of the suits in the Court of Common Pleas, No. 1, to December Term, 1876, Nos. 421 and 422, continued the lien of the debts.</p> <p>“ 3. The court below erred in allowing any part of the said claims.”</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July term, 1883, No. 152.</p> <p>This was an action on the case, by Mark Spicker against the Pennsylvania Railroad Company, to recover damages for an alleged illegal expulsion from a railway train.</p> <p>On the trial, before Biddle, J., the following facts appeared: In August, 1879, tlae plaintiff purchased at the office of the Pennsylvania Railroad Company, in Williams-port, Pa., a railroad excursion ticket, for one first class passage from Williamsport to Philadelphia and return, on which he travelled to Philadelphia. He did not use the return coupons of the ticket until more than two years afterwards, viz., on November 3, 1881, when he started to travel from Philadelphia to Williamsport. The ticket was accepted for passage on the Pennsylvania Railroad from Philadelphia to Harrisburg. After leaving Harrisburg, the conductor of the train declined to accept the ticket, and' demanded fare. Plaintiff did not pay it, but was permitted to travel until after the train had stopped at Dauphin, and had started from that station. The conductor then again declined to honor the ticket and demanded fare, which the plaintiff refused to pay. The conductor then stopped the train, some distance from the Dauphin station, and the plaintiff was ordered to leave the train, which he did, no violence being used. The train was not stopped at a station, and the testimony was conflicting as to the distance from the Dauphin station at which it was stopped; the conductor testified it was about a quarter of a mile; the plaintiff said it was a mile and a quarter.</p> <p>Plaintiff testified that when he went to buy a ticket, in 1879, he intended to buy a single trip ticket, but the agent said he could buy a round trip ticket which was good until used, and he did so; that he did not see or read any posters or other notice showing that the ticket was not an unlimited one; that the car he was ejected from was a Pennsylvania Railroad car, and the conductor and brakeman were in the uniform of that company; that at the time he was put off the train it was raining, and that the exposure in walking back to Dauphin station caused an illness from which he afterwards suffered in health and in his business, to the extent fully described by him.</p> <p>The defendant proved that the railroad, at the point where the plaintiff was put off the train, was then embraced in the Susquehanna division of the Northern Central Railroad. The testimony on behalf of the defendant was that the conductor of the train, in refusing to accept the ticket, was acting solely under printed instructions issued to him by the officers of the Northern Central Railway Company, and that while running on that division he was subject to the orders of that company.</p> <p>The following is a copy of the ticket and remaining coupons attached, which was offered and refused:—</p> <p>PENNSYLVANIA RAILROAD COMPANY.</p> <p>TMs excursion ticket entitles the bearer to one trip to Philadelphia, Pa., and return. This ticket is void unless officially stamped and dated. In selling this ticket for passage over other roads this company acts only as agent, and assumes no responsibility beyond its own line. This company assumes no risk on baggage except for wearing apparel, and limits the responsibility to one hundred dollars in value; all baggage exceeding that value will be at the risk of the owner, unless taken by special contract. The checks belonging to this ticket will be void if detached.</p> <p>Exc. P. & E. 1. '</p> <p>4499. L. P. PARMER,</p> <p>General Passenger Agent.</p> <p> </p> <p>Issued by</p> <p>PENNSYLVANIA RAILROAD COMPANY,</p> <p>On account of Northern Central Railroad One first-class passage Harrisburg to Sunbury.</p> <p>• This check is not good if detached.</p> <p> Philadelphia, Pa., and return. </p> <p>[Stamped on the back.]</p> <p>PENNSYLVANIA RAILROAD COMPANY,</p> <p>237,</p> <p>Passenger Department,</p> <p>Pennsylvania R. R. Co. Office.</p> <p>Aug. 22, Williamsport.</p> <p>Defendant offered to prove that prior to the sale of said ticket, in 1879, public notice was given at the place where the ticket was purchased, in Williamsport, at the railroad offices and elsewhere, by handbills, circulars and excursion books (produced), that such tickets, good for the round trip, are sold from June 1st to October 1st, good to return until November 1st of the same year.</p> <p>Objected to; objection sustained; exception.</p> <p>Defendant offered in evidence the record of a suit by the plaintiff against the Northern Central Railway Company, C. P., No. 2, December Term, 1882, No. 350, for the same cause of action as that for which the present suit was brought.</p> <p>Objected to; objection sustained; exception. (Sixth assignment of error.)</p> <p>The defendant presented the following points :</p> <p>. 1. The evidence fails to show any liability, either at common law or under a contract, on the part of the defendant, to carry the plaintiff from Harrisburg to Williamsport, and hence the verdict should be for the defendant.</p> <p>Answer. Declined.</p> <p>2. If the jury believe that the plaintiff, by the exercise of ordinary diligence and care in making inquiries, could have ascertained at or before the time he got the ticket, that under the regulations and rules of the company it was not good after November 1, 1879, and did not exercise such care and diligence, then the plaintiff is not entitled to recover, and the verdict should be for 'the defendant. Answer. Declined.</p> <p>3. The evidence does not show any malice or violence on the part of the conductor and other employees in putting the plaintiff off the train. Hence the damages, if any, which the plaintiff is entitled to recover must be limited to compensation for loss of time during which he was detained at Dauphin, his expenses then and there incurred, and the cost of another ticket. Answer. Declined.</p> <p>The Court charged the jury as follows:</p> <p>“There is no denial that the plaintiff went to the Pennsylvania Railroad office and prirchased this ticket, with the accompanying coupons, and there is no doubt that while travel-ling upon the route covered by this ticket he was ejected from the car in which he was travelling.</p> <p>“ Now the first question for you to consider is, had anybody a right to put him off the car in which he was at the time when tlie conductor asked him for 'his ticket. There is nothing whatever on this ticket that I can see that limits in any way the time within which it is to be used. There is nothing to show the purchaser of this ticket that it is not at liis discretion to use it when he was disposed to do so, and. the company cannot limit their responsibility after making a contract of that sort by any directions or instructions to their agents. [Therefore, when the conductor refused to receive this ticket, and turned him off the car, in my opinion he committed a gross outrage.] I do not think that it is fair to comment upon the conduct of Mr. Smith as being at all brutal or violent, or more disrespectful than was necessary. He put this man off against his will, but it was not accompanied by any actual violence. That, however, does not make the putting him off less or more justifiable. That is a simple incident which depended upon the characteristics of the man who happened to be the conductor at the time. [Putting the plaintiff off the train was without any right whatever.-] This, then, raises the second question, which is really the main question in this case.' That is, whose agent it was that put him off this car.</p> <p>“Now, with us, we ail understand the custom of the present day, where there are long roads connected over which the traveller.is taken by the sale of the ticket with coupons attached in this way. Where an outrage is committed upon the traveller by'some of these connecting routes over "which the original seiler of the ticket has no control, it would be very hard justice, indeed, if you were to attempt to make the railroad that sold this ticket responsible for the conduct of the employees of the'other railroads. Very often these tickets of this character take not only over railroads, but over steamboat routes, and, of course, it would bé a great hardship, because a company sold you a ticket which gave you a privilege of a trip to Europe, that the company who sold you that ticket, if the captain of the vessel at sea was to violate your rights in any way, should be responsible; and the defence in this case is, that these defendants were not the agents of the Pennsylvania Railroad at the time, and that they are not responsible, therefore, for their acts. Now, the plaintiff says that that was not true; that there was no doubt that it was a Pennsylvania Railroad car; that they were in the full uniform of the Pennsylvania Railroad; that the insignia attached to their coats designated that they were in the Pennsylvania Railroad service, and bad all the outward indications of being in the employ of that company; and, therefore, the plaintiff contends that the Pennsylvania Railroad Company, through their servants, are therefore responsible. The defendant on the other side has shown to you the different charters of these railways, and has argued to you that although there does appear to he a very intimate connection between the employees of the two roads, that in point of fact they were not the employees of their railroad, but of the Northern Central Railroad. You have heard the comments of counsel on each side, and this is a question for you. If you belie.ve the offence was committed by the officers of the Pennsylvania Railroad, defendant would be responsible. If, on the other hand, you believe it was done by those over whom the company then liad no control, that the conductor was the employee of another and distinct organization, then they would not be responsible.</p> <p>“The next question which will come before you is the question of damages- It is for you to say, if you think any damages are to be given in this case, what the extent and nature of those damages should be. You are not bound, as the defendant claims, simply to give the damages which would be limited by compensation during the loss of time that Dr. Spicker was detained at Dauphin, or his expenses there. [If you think he has been improperly turned out of this car and his health injured and his business injured, it is for you to say what is a fair compensation for those injuries.] In considering the matter of damages, it is scarcely necessary to say to you who have been serving with me here for nearly three weeks, that all these questions are to be considered by you dispassionately.”</p> <p>Verdict for the plaintiff for $5,000. A motion for a rule for a new trial was dismissed, and judgment was entered on the verdict. The defendant took this writ of error, assigning for error the exclusion of defendant’s offers of evidence as above, the answers to defendant’s points, and the portions of the charge above included within brackets.</p>

3, of Philadelphia county: Of January Term, 1884, No. 71. This was, in the court below, an appeal from the judgment of a magistrate, in a suit by Andrew Adams and Itichard Sheldon, late trading as Sheldon & Adams, against “ Catharine Burke (a feme sole trader.) ” Plaintiff filed in the Common Pleas a copy of book entries charged against “ C. Burke.” Defendant filed the following affidavit of defence: “ That she is now and was at the time of the issuing of the summons in this…

<p>1. A sheriff’s sale of real estate, under a judgment recovered in a scire facias upon a mortgage, passes to the purchaser title to the mortgaged premises discharged of equities of which the mortgagee had no notice or knowledge.</p> <p>2. Upon the distribution of the proceeds of a sheriff’s sale of real estate . under a judgment upon a mortgage thereof, which mortgage had been executed by one who held the legal title to the premises as trustee ex maleficio, the owner of the equitable title under said trust ex maleficio is entitled to claim the surplus of said fund after payment of the mortgage debt, to the exclusion of judgment creditors of the mortgagor.</p>

<p>1. A “ disinterested” witness to a will within the meaning of the statute of April 26, 1855, (P. L. 332), is one who has no legal interest; and a “ credible” witness is one not disqualified to testify. An employee of a charitable institution, to which property has been bequeathed, is a “ disinterested” witness to the will, within the meaning of said Act.</p> <p>2. "When a testatrix, who is unable either to read or write, executes a will in favor of a charitable institution by setting her mark thereto, it is unnecessary that the will be read to her in the presence of the subscribing witnesses. Other persons may testify that the testatrix knew the contents of the instrument. Nor is it essential in any ease to the probate oí a will to prove more by the witnesses who were present at its execution, than the identity of the instrument, that they saw the testador subscribe or make his mark, and at the time of the doing thereof he was of sound disposing mind, memory and understanding.</p> <p>3. Whether or not an executrix is.competent under the said Act of I860, to attest such a will, she is competent under the Act of March 27, I860, (P. L., 38), to-testify that the will was drawn by the testatrix’s direcrection, and was read to her before she affixed her mark.</p> <p>i. "When the jurat to the Register’s certificate of the probate of a will states that the witnesses were sworn, it is immaterial that the word “ oaths ” or “ affirmation” is omitted in the body of the certificate.</p> <p>5. An issue devisavit vel non will not be granted, if, upon the whole evidence on both sides, a verdict against the will would not be permitted to stand.</p>

<p>Coupon bonds payable to bearer, lawfully issued and sold by a private corporation, possess the incidents, of negotiable paper. Title thereto passes by delivery to a bona fide purchaser, unaffected by want of title in Ms vendor.</p>

<p>1. In an action to recover damages from one person for the negligence of another upon the principle of respondeat superior, the plaintiff cannot recover unless it be made to appear that the relation of master and servant in fact existed, whereby the negligent aot'of the servant was legally imputable to the master.</p> <p>2. Where the occupant of a store gave permission to, or directed the ser- . vant of another to remove merchandise which had boon sold to the latter by throwing it out of an upper window into a street below, and said servant negligently threw it out so that it struck and injured a passer by: Held, that the person injured had no right of action against the occupant of the store.</p>

<p>A testator, by his will, which was written by himself on the first page of a sheet of paper, devised and bequeathed all his estate to his wife. On r the third page of the same sheet he wrote, on the same date, the following two papers:</p> <p>“ Be it known to whom it may Concern, that in willing all my estate, real and personal, in favour of my wife Catharine I do it with the fullest Confidence (that should she survive me), she will Carry my intentions, as to the ultimate distribution, of it into effect,.....so far as in her opinion, my Children and Grand Children, respectively, may prove worthy of her attention. I'have therefore deemed it prudent (should it be the will of God that she should survive me, To Leave her, who has Toiled and Labored with me through Life, the management and disposition of our Joint Savings.....knowing that she will not only Judge of the Necessities of my respective heirs, but also of those most worthy of her regard. Under those impressions (should it please God to Call me first), I have the fullest Confidence of my intentions being Caried into due execution. Chakles JohnsoX.”</p> <p>“ Memorandum (for her). my Mansion house, Corner Lombard and 10th street, B. West, to my Grandson, Charles Johnson. (The factory to my son Charles.) The house I reside in, and the two frame houses, N. E. comer of Lombard and 10th streets, to the children of my daughter, Anne, being for her own Use during her Life, in Trust, so as not to be subject to the debts, Controle, or engagements of her husband. All the remaining part of my estate, divided among my heirs, as my wife may deem advisable. And I recommend to her To call on my Worthy friend, Benjamin Jones, Jr., as her assistant, who (if it suits him to serve) will faithfully execute the duties.</p> <p>Charles Johnson.”</p> <p>Held, that the above two papers (which were admitted to probate' with the will) formed no part of the testator's will, and did not create a trust, or in any way qualify the devise in fee to his wife.</p>

<p>1. Where the vestry of a Protestant Episcopal Church, in voting upon a question, stand six to five, the rector cannot .vote as a member of the vestry with .the minority and also cast a vote as presiding officer.</p> <p>2. The charter of a Protestant Episcopal Church provided that the tem- . pdral affairs thereof, should be managed by “ a vestry to be composed of the rector, chnrehwar'dens and vestrymen.” Subsequent provision was made for the choosing of the rector by “ the churchwardens and vestrymen,” and it was 'also provided that the “yestry” should .“consist of twelve persons ” elected in a specified manner. The wardens . were to be chosen from the vestrymen, and a by-law provided that the “ vestry ’’should have power to fill vacancies occurring in their body. Upon the occurrence of a vacancy in the vestry:</p> <p>HeU that the rector was entitled to a vote, as a member of the vestry, • in choosing a person to fill the vacancy.</p>

<p>Ebbob to the Court of Common Pleas No 4, of Philadelphia county: Of July Term, 1883, No. 221.</p> <p>This was an action of replevin by Morrill A. Furbush and Citarles A. Furbush, trading as M. A. Furbush & Son, against Chappell and Taylor, trading as Chappell & Taylor, and Ellicott Fisher, to recover a spinning mule claimed by Fisher under a distress for rent.</p> <p>On the trial, before Elcock, J., the following facts appeared : The mule originally belonged to Chappell & Taylor, and had been placed by them in a mill which they rented from Ellicott Fisher. It was about ninety feet long, occupied eleven feet space iu width, and had from four hundred to six hundred spindles. It was fastened to the floor by means of screws, and was part of the machinery of the mill. M. A. Furbush & Son, who had originally built the mule for a price which was never paid them, had received from Chappell and Taylor a bill of sale of it, and liad sent their workmen to the mill to remove it. Before the workmen had detached it from the building, Ellicott Fisher, the landlord, came to the mill and threatened to arrest the workmen, giving as a reason that Chappell & Taylor owed him some rent. According to plaintiffs’ witness, Fisher did not state the amount of rent. According to Fisher’s testimony, he said there was five months’ rent due, but it does not appear from- either testimony that he stated the amount of money due. In consequence of Fisher’s threats, Furbush’s men desisted from the attempt to take the machine, and the parties left the mill. According to Fisher’s testimonjq Taylor, one of the tenants, then locked up the mill and gave the key to Fisher, who said that he had possession, and that the machine could not go until the rent was paid. Furbush & Son thereupon sued out this writ of replevin. Fisher afterwards went to the mill with a constable, but found that the sheriff had seized the machine under the writ of replevin.</p> <p>The Court instructed the jury to find a verdict for the defendants, and to assess the damages at $417.50, which was the amount of rent in arrear. A motion for a new trial was overruled by the Court, and judgment entered on the said verdict, whereupon the plaintiffs took this writ, assigning for error the action of the Court in instructing the jury to find for the defendants.</p>

<p>1. Where a lease of real estate contains a clause giving the lessee the option of purchasing the demised premises for a stipulated price, which option is exercised by the lessee during the term, the relation of landlord and tenant is thereby determined, and the parties thereafter stand in the relation of vendor and vendee under the agreement.</p> <p>2. Where a tenant by the terms of his lease had the option to purchase the demised premises at a certain named price, “ on such further terms as shall be mutually agreed upon by the lessor and lessee,” and he exercised the option by notice in writing to the lessor, and by tendering in cash the'amount of purchase money stipulated for, the relation of landlord and tenant thereby ceased, and the landlord was not entitled to claim rent thereafter.</p> <p>8. Upon a rule for judgment for want of a sufficient affidavit of defence, all the material averments of the affidavit must be assumed to be true. An averment that a certain written contract sued upon contained a particular clause, which was omitted from the copy filed, cannot be contradicted or qualified, on the hearing of such rule, by exhibiting the original contract, whereby it appeared that said clause was not contained in the body of the contract, but was indorsed thereon without being signed by the parties.</p> <p>4. In the above case, the affidavit averring a sufficient defence, it was error to enter judgment for the plaintiff on the rule.</p>

3, of Philadelphia county: Of July Term, 1883, No. 196. Debt, by John F. Smith, against the Philadelphia and Reading Railroad Company, to recover the amounts of (1) certain scrip certificates, (2) certain interest coupons attached to said certificates, and (3) certain detached interest -warrants, originally annexed to bonds, (4) interest accrued on said coupons and warrants from the time the same became due and payable.

<p>1. Under a devise 'of. a contingent remainder, upon the determination of a precedent life estate, to “ the male issue then living of testator’s son R.” — R. taking no interest, and the testator’s intent being unexplained by the context — the words “male issue” &e., are words of purchase designating a class of devisees, to wit, all the lineal descendants of R., who are males, living at the determination of the life estate; and such male lineal descendants take in equal shares, whether they be of the same generation or not, and'whether they'trace descent from R. through males or through females.</p> <p>2. Testator devised certain real estate to liis two daughters and the survivor of them for life, remainder “ to the male issue then living of my son R., their or his heirs and assigns in fee,” and in default of such issue then living, then to all the children of testator’s said two daughters and of his said son R. in equal parts. Testator’s son R. was not married until after testator’s death. Upon the termination of the life estate there were living two sons of R., and several grandsons of R., who'were sons of daughters of R.</p> <p>Held, that the said grandsons of R. were entitled, under the above devise, to share equally, per capita, with the said two sons of R.</p>

1. Error to the Court of Common Pleas No. 2, oí Philadelphia county: Of July Term, 1883, No. 145. 2. Error to the Court of Common Pleas No. 1, of Philadelphia county: Of July Term, 1883, No. 141. These two eases were argued and decided together in this court.

<p>1. Tlle provision of the Act of June 11, 1879 (P. L., 128), that certain factories, etc., shall be_provided with fire escapes by the “ owners,” or other persons therein designated, does not apply to an owner in fee, (not in possession, who has leased the premises to a tenant who occupies same as such a factory.</p> <p>2. Such tenant in possession, using the premises as such a factory, is the “owner” of the factory, within the meaning of said Act, for the purposes and under the liability therein provided.</p>

<p>1. The false assertion of the soundness of a chattel by a vendor, who at the time knows that his assertion is falso, is such a fraud upon the vendee as will entitle him to rescission, and it is immaterial whether or not the assertion amounted to a warranty.</p> <p>2. A. having seen a mare belonging to B., which the latter told him was “kind, sound, and very speedy,” authorized C. to look at the mare, and “if she was what B. said,” to buy her. C. sa,w B., and without disclosing A. as his principal, purchased the mare for A. for a stated price, of which a portion was then paid. C. having notified A. of the purchase, they went together to B., and C. then informed B. that the mare was for A., and requested him to state then “ if she was not right.” B. replied: “ She is all right in every way,” and A. thereupon gave him a check for the balance of the purchase money. The mare having been delivered to A., she proved lame and unsound, whereupon A. refused to honor Ms cheek. There was some evidence that subsequently B. offered to return the check and take the mare back, whereupon A. returned the mare. In an action by B. against A. on said check, the court excluded all evidence of an alleged agreement to rescind tire contract, as void for want of consideration, or or the defective condition .of the mare, or that B. sold the mare knowing it to be defective, on the ground that the evidence disclosed that C. ana not A. was the purchaser; that when the earnest money was paid the sale was concluded, and that B. could not be held for representations made by Mm subsequently to A.</p> <p>Held, to be error; that testimony of the above facts was sufficient to submit to the jury to determine whether or not A. was the actual purchaser, known to be §uch by B. before the contract was concluded; and that if the mare was re-delivered by A. to B., there was a sufficient consideration for the alleged rescission.</p>

<p>1. Where title papers of property are. placed in the hands of a real estate broker for the sole purpose of effecting a sale of the property, the broker has no lien on said documents for reimbursement of his expenses incurred in an unsuccessful attempt to make a sale.</p> <p>2. In such a case, the retention of the papers by the broker, against the will of the owner, is a tort, for which an action of trover will lie, and in such action the broker cannot set off his said charges or expenses against the damages arising from the detention.</p>

1, of Philadelphia county: Of January Term, 1884, No. 53. Debt, by Edward S. McGlue, Sr., against the City of Philadelphia.

<p>1. An entry by a corporation invested with the right of eminent domain, upon private land without first making compensation to the owner or giving adequate security therefor, is a trespass. Until such compensation is made or security given, the full title 1;o the premises is in the private owner, and he may maintain ejectment for their recovery.</p> <p>2. Where land was taken by a railroad corporation without first paying or securing compensation, and the private owner subsequently agreed with the corporation to accept a specific sum for the right of way over his property, to be paid w'ithin twenty days after Hie issuance of certain bonds contemplated by said corporation, and the agreement was never executed by the payment of said purchase money:</p> <p>. Held, in an action of ejectment brought by the private owner against the corporation to recover said property, that the unexecuted agreement conld not be sot up to defeat the plaintiff’s right of recovery.</p>

<p>Error to the Court of Common Pleas No. 1, of Philadelphia county: Of January Term, 1884, No. 60.</p> <p>Assumpsit, by Charles N. Selser et al., trading as Selser & Brother, against Thomas Roberts et al., trading as Roberts & Co., to recover the sum of $296.22, with interest thereon,'for goods sold and delivered. The defendants admitted the debt, but pleaded a set-off of $212, and interest.</p> <p>On the trial, before Biddle, J., it appeared that the alleged set-off arose from the following collateral transaction: On October 22,1880, George ~W. Roberts, representing the defendant firm, visited the store of the plaintiffs, who were dealers in fruits, for the purpose of purchasing one hundred boxes of unpared evaporated peaches. John A. Selser, a member of the plaintiff firm, showed him a lot of one hundred or more boxes of such peaches, and offered to open them for his inspeetion. Mr. Roberts testified that he asked Selser to give him a sample of these goods; that an opportunity was offered him to ihspect the contents of all the boxes, but as such examination would have taken several hours, he declined to do so: that he examined the contents of three or four boxes, and found them to be sound and undamaged peaches of the kind desired. He expressed his satisfaction with their quality and purchased a hundred boxes for $750, which his firm subsequently paid. After their delivery, some forty-seven boxes proved mouldy and unsound. To determine the condition of the fruit, the parties chose arbitrators, who duly found that the contents of these forty-seven boxes were “unmerchantable.” It was further agreed by the parties that the defendants should sell the goods and charge the loss, if any, to loss account, the issue to await the result of a somewhat similar dispute between the defendants and M. Semple & Co. If this latter case was decided in favor of Semple & Co., then it was agreed that Roberts & Co. should have no claim on Selser & Bro., bnt if it was decided in favor of Roberts & Co., then Selser & Bro. agreed to pay Roberts & Co. the amount of the loss, if any, sustained on the re-sale of the ¡oeaches. It was in evidence that the case between Roberts & Co. and Semple & Co. was undecided. The defendants sold the goods at a loss of $212, which sum, with interest, is the set-off claimed.</p> <p>The Conrt charged the jury:—</p> <p>“ The first question is, whether this sale was a sale by inspection or by sample. A sale by inspection is where the buyer has an opportunity to inspect the goods. In such case the only obligation on the seller is that the buyer shall get the identical goods; that is, if he had the opportunity to examine as many as he pleased.</p> <p>“ On the other hand, the defendants contend that they purchased by sample; that they were shown a sample of the goods. [The law in regard to sale by sample, I mean the law in Pennsylvania, is this: If you buy by sample, the seller is not responsible for the goods; they need not correspond with the sample except in kind, but the goods must be merchantable as that kind. By merchantable as that kind is meant that the goods may be of a quality very inferior to the sample, but they must be sound goods; they must not be damaged or spoiled, and must be fit for the use for which they are generally intended. To illustrate: if you sold one hundred barrels of apples by one as a sample, you would be responsible as to kind, but not as to quality; the other ninety-nine might be of a kind very inferior to the sample, but if they were sound apples you would not be responsible. But if they were rotten or spoiled they would still be salable; they might he fit for hog feed, but that is not what is meant by merchantable, and you would be responsible. Now the defendants contend that they bought by sample, and that although they received the identical goods, they were spoiled, unfit for the use for which they were intended. They must be merchantable under the denomination affixed to them by the seller. If you believe that, you will allow defendants their claim of set-off.] If, on the other hand, you believe that these goods were sold by inspection, and that the defendants got the identical goods sold, you will reject their claim of set-off.”</p> <p>Verdict for the plaintiffs, for $63.87, and judgment thereon. , The plaintiffs thereupon took this writ of error, assigning for error the portion of the charge inclosed in brackets.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia Qounty: Of January Term, 1884, Nos. 65 and 66.</p> <p>Two mechanics’ claims were filed by the Southwark Foundry and Machine Company against the Girard Point Storage Company, owner, and Malster & Reany, contractors, for work and materials, to wit, steam engines, furnished to grain elevators A and B, erected on the property of the Girard Point Storage Company in the city of Philadelphia. A lien was claimed on the said buildings and the pier, and lots on which the same were constructed, respectively, and curtilage, &c., as described in the claim, being portions of the entire tract and buildings owned and used by said company.</p> <p>The defendant company filed the following affidavit of defence in each case:</p> <p>“ Said company was incorporated on the 21st of February, 1881, ‘ to elevate, store, handle, and transfer grain; to do a general storage business in all kinds of merchandise; to transfer 'merchandise from vessels. to cars and from cars to vessels, and to construct or otherwise provide elevators, wharves, warehouses, docks, telegraph lines, railway tracks, locomotives, cars, lighters, tugs, and such other appliances as it may deem necessary or desirable for the transaction of its business; to issue elevator, storage and warehouse receipts; to advance money thereon and to acquire, hold, and convey such, real and personal estate as is or may be necessary for the purpose of its organization, and for all such purposes to be vested with all powers granted by the Act of April 29, 1874, providing for the incorporation and regulation of certain corporations and the several supplements,’ as is specifically set forth in Pamphlet Laws of 1881, 230.</p> <p>“Deponent saith that the ground described in said claims is a part of a large piece comprising one hundred and thirty acres acquired by said corporation for the execution of its franchise, and that the buildings referred to in said claim with others were erected on said ground as an integral part of the corporate property, without which the franchise could not be successfully maintained, and for that reason neither is subject to the lien of the claims hereinbefore referred to. Said premises described in said claim, and the ground and buildings as to which the franchises apply and which are one and inseparable with regard to it, can be better made manifest by a plan of the same to be exhibited on the trial hereof.”</p> <p>The plaintiff took in each case a rule to show cause why jugdmeut should not be entered for want of a sufficient affidavit of defence, which rules the court, in an opinion by Tkayeb, P. J., made absolute, whereupon the defendant took these writs of error, assigning for error the entry of judgment for claimants for want of sufficient affidavits of defence.</p>

<p>Appeal from tbe Court of Common Pleas, No. 2, of Philadelphia county: Of January Term, 1884, No. 80.</p> <p>Bill in equity, by J. Carroll McCaffrey and Eugenie, his wife, in her right, against James Elverson, setting forth that tbe complainants, being owners and occupiers of a certain dwelling house, No. 915 Spruce street, in tbe city of Philadelphia, were disturbed in the enjoyment of their residence by the noise and vibration of machinery in the defendant’s printing house, which he had erected in a section of the city occupied by private residences, to wit, at the northwest corner of Ninth and Spruce streets, adjoining the house No. 913 Spruce street, which latter adjoins the complainant’s house; and praying that the defendant be restrained from operating said machinery between the hours of 6 p. M. and 6 A. m., and from running the machinery in such a manner as to jar the plaintiff’s house.</p> <p>The defendant in his answer denied that the vibration jarred the complainant’s house, and averred that he did not run his presses longer than was necessary for the purposes of his lawful business, and that ho had adopted the best means known to him to reduce the amount of inconvenience occasioned by said operations.</p> <p>The cause was referred to an examiner and subsequently to a master, who reported a decree perpetually enjoining the respondent from running his presses between the hours of 8 o’clock p. M. and 6 o’clock A. M., and that the doors and windows of respondent’s building, on the Spruce street side, be closed whenever the machinery and presses were in operation.</p> <p>Exceptions were filed by both parties to the master’s report, and after argument thereon, the court, of its own motion, appointed three persons as experts to visit the premises and report to the master; and referred the cause back to the master, who filed'a supplemental report, which was not printed. The case was again argued on the exceptions filed to the master’s report.</p> <p>The evidence was voluminous and conflicting. The findings of fact by the court are stated in the following opinion by Hake, P. J.:</p> <p>The respondent in this case carries on his business as the printer and publisher of a *\veekly newspaper, in a building which he erected for the purpose at the northwest corner of Spruce and Ninth, and the complainant resides at 915 Spruce street, two doors above. The bill avers that the respondent’s presses are run day and night, and that the noise and vibration resulting from this cause, and from the working of the steam engine by which they are set in motion, disturbs the repose and quiet of the complainant’s dwelling, prevents sleep, impairs the health of the occupants, and tends, to lessen the market value of his property. He therefore prays for an injunction to restrain the continuance of the respondent’s business in its present form.</p> <p>Various questions arise on the pleadings and evidence, which may be summed up under the following heads: Did the respondent use due care to prevent the transmission of sound by having an interstice between the walls of his buildings and the adjacent houses ? Is it necessary that the presses should be worked at night during the hours which are ordinarily devoted to sleep ? Are the noise and vibration such as materially to disturb the complainant’s family, and entitle him to ask for the intervention of a court of equity to enjoin the respondent ?</p> <p>Without going into details, it is sufficient to say that the respondent could not, agreeably to the evidence, suspend the working of his presses during the night, without such serious detriment as would render his business unprofitable. Such a course would not merely necessitate the purchase of new printing presses, and the employment of additional workmen, but an enlargement of the building, for which there is not sufficient space.</p> <p>. As it regards the second head, we incline to think that the respondent was negligent in not adopting a precaution that would obviously have tended to lessen the inconvenience that liis business might otherwise produce to the occupants of the adjacent houses. One who erects a manufactory in a neighborhood used for dwellings, should pay due regard to the maxim, “Sic utere tuo ut alienum non laedas;” and suffer some abridgment of his own rights rather than cause unnecessary injury to others. Had the respondent, instead of building a party wall, left three inches between his printing house and the buildings on either side, sound could not have been directly transmitted, and he would, at all events, have done all that was in his power to render the prosecution of his business consistent with the repose and tranquillity of his neighbors.</p> <p>We may now turn to the third head, the extent and nature of the disturbance which is alleged in the bill. Conceding that the respondent did not proceed with sufficient care and foresight in the construction of his building, it does not follow that he should he subjected to a restraint which may prove disastrous, by depriving him of his means of livelihood. In every judicial proceeding there should be a just proportion between the cause and consequence, the wrong complained of, and the redress afforded by the court. A wilful injury may justly be prevented at whatever cost, but the case is different where one who is proceeding in the ordinary course of a business that cannot profitably be conducted in any other way, incidentally inflicts an injury on others. Under these circumstances the question is relative, depending on the nature of the injury and the loss that will be occasioned by granting an injunction which, though nominally confined to a single point, covers the entire ground, and will compel the defendant to close his present establishment and move elsewhere. The injured party is entitled to such compensation in damages as a jury may think fit to award; but a chancellor .ought not to intervene unless the evidence is so clear as not to admit of reasonable doubt. In this instance the testimony is conflicting ; but the weight of the evidence appears to be that the noise which the hill describes as “ overpowering, intolerable, crashing,” and attended with a vibration which shakes the doors and windows, amounts to little more than the sound of the breakers on a distant beach, and that there is no vibration except that arising from the passage of vehicles through the street. This statement is to some extent fallacious, because the sound of the sea is associated with pleasing ideas, while that of the respondent’s printing presses no doubt falls painfully on sensitive ears, which regard it as an unwarrantable disturbance of the quiet of the night. Such a difference is hardly a sufficient ground for the prohibition asked for in the bill; but we do not think that it should be dismissed, or that the complainant’s case is so entirely groundless that he ought to bear the respondent’s costs. It may well be that the conflict of the evidence is due in part to observations made at different periods, and that the respondent’s printing office was not conducted with as much care to avoid unnecessary disturbance before the bill was filed as it is at present.</p> <p>Our decree, therefore, is that each party shall bear his own costs and share the expenses of the commission which we appointed to visit the premises, and that the bill be retained with leave to the complainant to apply for a further order, should circumstances render it expedient.</p> <p>The injunction is refused. The exceptions filed by the defendants were sustained.</p> <p>The complainants took this appeal and filed the following assignments of error:</p> <p>The court below erred in sustaining the following exceptions filed by respondent to the master’s report:</p> <p>1. That the master erred in reporting that the use of his premises by the defendant is a nuisance to the plaintiff.</p> <p>2. That he erred in reporting that the testimony proved that such use is a nuisance.</p> <p>3. That he erred in reporting, as a fact, that such use is a nuisance.</p> <p>4. That he erred in reporting that such use entitles the plaintiff to the relief prayed for, or to any relief in equity.</p> <p>5. That he erred in reporting the form of decree set forth in the report.</p> <p>6. The court below erred in refusing the decree of injunction prajmd for, and in refusing relief to the complainants.</p> <p>7. The court erred in receiving and considering, as evidence, testimony created and taken after the master had filed his report and findings of fact.</p> <p>8. The court erred in not allowing costs to the complainants, and in ordering that the complainants bear their own costs and share the expenses of the commission appointed by the court.</p>

<p>Appeal of H. A. Fross, Emma Fross, W. A. Blaine and Arthur E. Blaine from the decree of the Orphans’ Court of Erie county, making distribution of the estate of E. W. M. Blaine, deceased: Of January Term, 1884, No. 21.</p> <p>Appeal of Dyer Loomis and W. E. Marvin, administrators of the estate of A. W. Blaine, deceased, from the same decree: Of January Term, 1884, No. 146.</p> <p>These two appeals were argued together, and involved the same facts as follows: E. W. M. Blaine died October 31, 1858, at North East, Erie county, leaving three children, Wm. A. Blaine, A. E. Blaine, and Emma E. Fross, wife of Henry A. Fross. Letters of administration were granted to A. W. Blaine and Wm. A. Blaine on November 9, 1858, and an inventory of the personal property, amounting to $4260.06, was duly filed on December 7, 1858. This was sold at public sale, except some notes and judgments, amounting to $767.05. No vendue or sale list was filed by the administrator, as required by section 11. of the Act of February 24, 1834. W. A. Blaine never acted as administrator. On May 2, 1864, an account was filed by A. W. Blaine, styled a “partial account of A. W. Blaine, one of the administrators of E. W. M. Blaiue, deceased.” At the head of the account it was stated that “ the amount of the inventory was $4,270.60; but as other money came into his hands not in the inventory, the administrator charges himself with all moneys received, and credits himself with all moneys paid as debts and to heirs, &c.” A detailed statement of receipts followed, including notes to the amount of $946.26 unpaid, the whole amounting ■ to $5,459.87, and also an itemized account of disbursements amounting to $3,610.34, leaving a balance in the hands’'.of accountant of $1,849.53. This account was confirmed, nisi, August 5, 1864, and no exception having been filed it was finally confirmed on November 11, 1864. A. W. Blaine died January 10,1878, and on January 16, 1878, letters of administration were duly granted to Dyer Loomis and William E. Marvin, against whom, on November 12, 1878, a citation was issued, sur petition of Emma E. Fross, to file a final account of A. W: Blaine, as administrator of the estate of E. W. M. Blaine. In accordance therewith Loomis and Marvin filed the account of A. W. Blaine, in which they charged his estate with the balance shown by the partial account and other items amounting in all to $2,483.11, and claimed credit for $3,165.19, showing a balance due the accountant of $682.08. The items in dispute were:</p> <p>■ 1. The accountant claimed credit for the amount of $741 paid to Mrs. M. M. Glass for services rendered decedent under an alleged verbal direction of E. W. M. Blaine, given to A. W. Blaine about two weeks before his death, and while in his last illness, and which direction or request was to the effect that he, E. W. M. Blaine, -wanted Mrs. Glass to have certain notes, amounting to $500, made by Harper or Harper & Co., o'r $500 in money when the notes were collected, in consideration of her services rendered to him during the time she had lived in the family. Mrs. Glass testified to her having heard this request made. The only proof of this transaction was the testimony of Mrs. Glass herself. As to the merits of the claim,- the evidence was that Miss Harris, afterwards Mrs. Glass, went to live with E. W. M. Blaine when she was ten or eleven years of age; that she was treated and brought up by Mr. Blaine the same as his other children, and lived with him until he died, at which time she was twenty-one or twenty-two years of age; that Mrs. Blaine, wife- of E. W. M. Blaine, was an invalid during the latter part of her life, and died two or three years before her husband; and that Mrs. Glass had charge of- the house whenever Mrs. Blaine rvas unable to be around, during her lifetime, and entirely after her death, until the death of Mr. Blaine.</p> <p>The auditor (E. L. Whittlesey, Esq.) admitted Mrs. Glass to testify, reporting as folloAvs:</p> <p>“ The true test of interest is that she Avill either gain or lose by the direct legal operation and effect of the judgment, or that the record Avill be legal evidence for or against her on some other occasion : 1 Greenl. Ev„ §. 390. It is quite true that Mrs. Glass, the Avitness, did have a claim against the estate at the time of the' death of the intestate, but she had none at the time of giving her testimon}r, having received her pay in full, and it cannot be recovered back from her, she having received,it under a claim of right: Morris v. Tarin, 1 Dall., 147 ; Carson v. McFarland, 2 Rawle, 118 ; Kennedy v. Hughey, 3 Watts, 265; Keener v. Bank, U. S., 2 Pa. St., 237; Natcher v. Natcher, 47 Pa. St., 496. It has been held that a legatee,in a will, who has been paid, is a competent witness to support the will in a suit at law: 1 Greenl. Ev., §§ 408, 420; McIlroy v. McIlroy, 1 Rawle, 433.”</p> <p>2. It was shown that A. W. Blaine held a. note of Amos Gould for $500. dated January 28, 1860, payable one day after-date to A. W. Blaine, administrator-of the estate of E. W. M. Blaine. This amount was never accounted for by A. W. Blaine in his accounts. It was asked that the accountants be surcharged therewith. This the auditor refused to do, stating “there is no evidence that Mr. Gould was indebted to E. W. M. Blaine for this note at the time of his death. By reference to the note it will be seen that it is payable to the administrators of E. W. M. Blaine, deceased, and dated January 28, 1860. It is not in the inventory, and the auditor thinks it must have been given to secure the payment of money borrowed by Mr. Gould of the administrator of Blaine, deceased, and therefore declines to charge the accountant with it.”</p> <p>3. Two notes of J. C. Hays, one dated December 24, 1857, for $30.84, and another dated February 4, 1858, for $36.24 were charged in the original inventory filed and not accounted for in the partial account in 1864. It appeared that judgment for $74.71 had been recovered in the Common Pleas of Crawford county as of August Term, 1859. The judgment was receipted February 27, 1868, and at that date amounted to $110.77, with which sum the accountants were charged in the final account. The auditor refused to surcharge the accountants, as requested, with interest on this sum from February 27, 1868, for the reason: “The accountant has not claimed credit for any expense incurred in the collection of this debt, and as he had a right to retain a reasonable amount in his hands to pay expenses, etc., the auditor does not think he should be charged with interest from the date of the receipt of the money until the present time, as requested by exceptants. Davis’ Appeal, 11 Harris, 206.”</p> <p>4. On April 1, 1856, E. W. M. Blaine and one Johnson entered into an agreement .in writing with the heirs of P. S. V. Hamot, deceased, by which the latter agreed <bo convey a tract of land in North East to Blaine and Johnson in consideration of $2,800. Some $1,653.33 had been paid on this when Johnson assigned his interest in the contract to Blaine, who paid $260 more. After his death in 1858, A. W. Blaine paid on account $700, for which he was allowed credit in his partial account in 1864. A deed was made reciting payment of the consideration in pursuance of the contract on August 21,1872. George YV. Starr, who received the money and delivered the deed, could not give the date of the payment of the remainder of the purchase, amounting then to $825.95, but testified that it had been paid. The auditor therefore allowed the credit claimed for the payment to Starr by this amount. ■</p> <p>5. The auditor allowed $250 as commissions to the administrator to which objection was made on the ground that he had acted fraudulently. On this the auditor reported : “ The auditor can find no evidence of fraud in the case. If A. W. Blaine had lived and filed his account and failed to account for the items above mentioned, his conduct might have been considered fraudulent, so as to forfeit right to compensation ; but as it is, his account is filed by the administrators of his goods after his death. They had no knowledge of these matters, so far as the- evidence shows.” “ If Mr. Blaine had lived, he might have been able to explain what became of the notes and moneys, or, if he had filed his own account, might have charged himself with the full amount of the property and money unaccounted for in the partial account.”</p> <p>6. The auditor allowed a surcharge for a balance of principal and interest unpaid on a claim against Harper Ross & Co., dated April 10, 1851, for $392.74. In the partial account the administrator was charged with interest received thereon April 5, 1860, $100, April 28,1864, $221.15, and as of the same date was charged as follows:</p> <p>Harper Ross & Co.,...........$300.00</p> <p>This account the auditor re-stated as follows:</p> <p>Note of Harper Ross & Co., April 10,1851, . $392.74</p> <p>Interest to April 28, 1864,..... 307.53</p> <p>- $700.27</p> <p>Paid April 7, 1860,........$100.00</p> <p>Paid April 28,1864,........ 221.15</p> <p>Paid April 28, 1864, ....... 300.00</p> <p>-- $621.15</p> <p>Remainder April 28, 1864,......$79.12</p> <p>Interest to July 11, 1879,...... 72.17</p> <p>-- $151.29</p> <p>7. It was shown that the administrator leased a farm of decedent to one Johnson for five years at $200 a year, in all $1,000: of this he accounted for $300 in the partial account, and it was shown that he had received the balance. The auditor surcharged him with this sum with interest amounting to $410.34.</p> <p>8. In the inventory a note of JTohn R. French for $137.47 was marked doubtful and was not collected. The auditor reported that: “ There is no evidence that they could have been collected, or that they have been paid to accountant. If so paid, it would have been easy to have proved the payment by Mr. French, who is living, and a competent witness. He was not called. The burden of proof is on the exceptants, the debt being marked doubtful in the inventory. Reiff’s Appeal, 2 Barr, 256.”</p> <p>Exceptions were filed by both parties to the auditor’s report on the above questions and were dismissed by the court, except as to the surcharge in item eight above, the exceptions to which were sustained, Galbraith, P. J. filing the following opinion:</p> <p>“In the inventory, notes of John R. French & Co. were marked ‘ doubtful.’ The auditor in the absence of proof showing the money to have been collected, refused to charge the accountant with the amount, basing his decision mainly upon a remark of Judge Rogers in Reiff’s Appeal, 2 Barr, 256. But there is evidence that another person who held notes of French & Co., made about the same time, collected their full amount, and the notes not being found among the papers of the administrator, the burden of proof would appear to be on the accountants to show that the money was not received, especially as it appears from the evidence that French is living and within reach, so that his evidence could be had. This • exception is sustained. The accountant should be charged with the amount of the French notes and interest.</p> <p>“The next exception to be noticed is the refusal of the auditor to charge the accountants with the amount of a note executed by Amos Gould, and dated January 28, 1860, for the sum of $500. This note was made more than a year after the death of E. W. M. Blaine, and was payable to A. W. Blaine, administrator of E. W. M. Blaine, deceased. No such debt appears in the inventory, nor is there any proof that Gould was indebted to E. W. M. Blaine in any such sum in his lifetime. There is evidence that Amos Gould and A. W. Blaine had frequent business dealings, and the conclusion of the auditor that this note was merely the evidence of a temporary loan of money of the estate in his hands ah administrator, seems to be fully justified by all the facts. This exception is therefore dismissed.”</p> <p>Whereupon Emma Fross et al., children of E. W. M. Blaine, deceased, took this appeal, assigning for error:</p> <p>1, 2, 3, 4, 5. The reception of the testimony of Mrs. Glass in regard to the credit asked for the payment to her and the allowance of the same as in item 1 above.</p> <p>6. The refusal of the auditor and the court to surcharge the accountant with the amount by the Gould note as in item 2 above.</p> <p>7. The refusal of the auditor and the court to surcharge the accountant with the interest on the Hays’ judgment as in item 3 above.</p> <p>8. The allowance as a credit of the payment to G. W. Starr, for purchase money due the Hamot heirs as in item 4 above.</p> <p>9. The allowance of $250 to the accountant as commissions as in item 5 above.</p> <p>And Loomis et al., administrator of the estate of A. W. Blaine, deceased, took their appeal, assigning for error :</p> <p>1. That all the exceptions filed to the account should be dismissed: “ The auditor-erred in not dismissing all the exceptions filed to the account, for the reason that the exceptants are estopped from contesting the account filed by A. W. Blaine May 2, 1864, said account purporting to be a full account- of all moneys collected by him to that date, and the exceptants being then of full age or represented by guardians, and living iñ the same town with accountant during the whole time between the filing of said account and the death of accountant — about fourteen years.”</p> <p>2. The surcharge allowed for balance of principal and interest unpaid on claims against Harper Ross & Co., as in item 6 above.</p> <p>5. The surcharge allowed for rent received by accountant of real estate belonging to his intestate’s estate as in item 7 above.</p> <p>7. The surcharge allowed for note of John R. French & Co., as in item 8 above.</p>

<p>Error to the Court of Common Pleas of Erie county: Of January term, 1884, No. 147.</p> <p>Ejectment, by Caroline E. Wheeler against W. F. Kidder and Christiana Kidder, to recover a certain tract of land containing about eighty-five acres, situate in Erie county.</p> <p>At the trial, before Galbraith, P. J., the following facts appeared:' On November 24, 1864, E. M. Wheeler, who, at the time, resided with his family upon one of his farms in Crawford county, purchased for the sum of $2,000, from Clark Shaver, for his daughter, Caroline E. Wheeler, then only six-years of age, a farm of about eighty-five acres, situate in the county of Erie. The deed was executed and delivered on the 26th day of November, 1864. It was a warranty deed, to “ Caroline E. Wheeler, her heirs and assigns,” with this reservation, viz: “ with the use of the said premises to E. M. Wheeler during the minority of the said «Caroline E. Wheeler.” The deed was delivered by Mr. Shaver to E. M. Wheeler, and was retained by him until some time in July, 1879, (which was about four months after his daughter, Caroline, became of age,) when it was delivered by him to a brother of Caroline, and was placed on record August 15, 1879.</p> <p>When the deed was executed it was read to Shaver and his wife by the scrivener, J. D. Minniss, under the direction of E. M. Wheeler, as being executed to the said E. M. Wheeler.</p> <p>Late in the fall of 1865, E. M. Wheeler made some heavy investments in oil territory at Pithole, which proved very disastrous, and he became financially embarrassed. On the 12th day of January, 1866, he borrowed of Gideon Mosier, a banker at Meadville, Pa., the sum of $8,000, giving his judgment note therefor. Judgment was afterwards entered on this note, and the premises in question sold by the sheriff, on proceedings had thereunder, to Gideon Moser, from whom it passed, by various conveyances, into the possession of Wm. H. Mead, who, on November 20, 1878, entered into a contract, for the sale thereof to the defendant, W. F. Kidder. E. M. Wheeler was solvent on November 24, 1864, when he purchased the farm. Caroline E. Wheeler testified that she never saw the deed until July, 1879.</p> <p>The plaintiff submitted, inter alia, the following points:</p> <p>1st. “If on November 24, 1864, E. M. Wheeler was free from debt, or perfectly solvent after payment of all his existing debts, he had a right to make a gift to his daughter, Caroline, of $2,000 in money, or to invest the same in real estate for her, and the gift so made cannot be attacked by subsequent creditors, unless at the time it was made it was done with the intent of evading such subsequent debts.”</p> <p>Answer. “ This is good law as far as it goes, but such deed would not be available to the plaintiff in the absence of a subsequent delivery to her, or to some one for her. The conveyance not having been recorded until long after the sheriff’s sale and deed to Mosier.”</p> <p>2d. “The delivery of the deed to E. M. Wheeler, on November 24, 1864, his daughter, the vendee, being at that time only six years old, was a sufficient delivery in law to her, he being her natural guardian and trustee.”</p> <p>Answer. “This point is refused as inapplicable to a case where the controversy is between creditors or the vendee of a purchaser at sheriff’s sale and the intended beneficiary, the daughter, however it might be as between the father and the daughter on the question of the alleged delivery for her benefit.”</p> <p>5th. “If the gift from the father to the child was consummated by the acts done on November 24, 1864, it was not within the power of the father afterwards to revoke it, and the fact that he continued to hold the evidence of title in his possession until August, 1879, does not affect the title itself, which became complete in the plaintiff at ‘the time of the original delivery.” Refused.</p> <p>The pourt, in its general charge, instructed the jury, inter alia, as follows: “Now, you are instructed, as a matter of</p> <p>law, that no title passed to the plaintiff by this transaction; that the taking of the deed in the name of the daughter, the father still taking and holding the possession of the property, and holding the deed, gave no title to her, and it was an un consummated gift. It could have been revoked at any time; there was no possession in her, and no handing or delivering of the deed to anyone for her, and no putting it upon record. It was, therefore, an inchoate transaction as between the parties, and certainly between creditors. This transaction as to the creditors would have no effect whatever.”</p> <p>Verdict for the defendant, and judgment thereon. Whereupon the plaintiff took this writ, assigning for error, (first), the action of the court in admitting evidence to show that at the time of its execution, the deed was read by the scrivener, as being to E. M. Wheeler, instead of to Caroline E. Wheeler; and further, the answers to her points; and that part of the charge of the court above cited.</p>

142. Ejectment, by Sarah E. Maxwell against William Benson and Chester West, for a house and lot of ground in the borough of Waterford, Erie county. On the trial, before Galbratth, P. J., the following facts appeared: Both parties claimed through Sheldon Maxwell, deceased. On April 1,1870, Sheldon Maxwell being indebted to his wife, the plaintiff, in a sum exceeding $1,200, gave her his promissory note for $1,562, payable one day after date.

218. This was a scire facias sur municipal lien filed by the City of Erie against “ A piece of land fronting on Ninth street, and Trustees First Universalist Church, owners or reputed owners,” to recover a proportionate part of the cost of a sewer built by the city in Ninth street in front of said lot, being 82]- feet on Ninth street.

266. Assumpsit, by James B. Kerr against the city of Corry, upon certain unpaid interest coupons accrued on bonds of said city. Plea, non-assumpsit, with leave, etc. The case was tried before E. L. Whittlesey, Esq., as “legal arbitrator,” under tlie provisions of the Act of April 6, 1870, applicable to the counties of Erie, Elk, Crawford and Lawrence (P. L., 948 ; Purd. Dig., pp. 80, 81).

253. This .was an action of covenant by Chas. H. Orton, George W. Haverstiek and Elon A. Bennett, to the use of E. A. Bennett, against William W. Reed, executor of Henry Cad-well, deceased, to recover on an agreement under seal, whereby Cadwell, as a member of a firm with Orton, Haverstiek & Bennett, upon the dissolution of the firm, covenanted to indemnify his partners from all suits and demands arising out of and concerning the said copartnership.

334. Case stated, wherein Andrew G. Apple was plaintiff, and the County of Crawford defendant; being a claim by the said plaintiff for certain arrears of compensation alleged to have accrued to him during his term of office as sheriff of the said county.

70. Debt, by Edward Campbell against Thomas H. Higinbotham, administrator of Robert Maple, deceased, to recover $125 for legal services rendered Maple during his lifetime. On the trial, before Willson, P. J., the following facts ap peared: In September, 1869, Maple employed the plaintiff, as an attorney at law, to defend an action of ejectment which had' been brought against him for a tract of land in Green county, and paid a retaining fee of $25.

203. This, was an appeal by Elizabeth Stewart, widow of Andrew Stewart, deceased, from a decree of said court confirming the report of an auditor appointed to distribute the balance of the estate of the said decedent, appearing by the account of his executor. The auditor (D. M. Hertzog, Esq.) found the following facts: Andrew Stewart died testate, on July 16, 1872.

<p>Ebbok to the Quarter Sessions of Fayette county: Of January Term, 1884, No. 101.</p> <p>Indictment of William Britton, for selling liquor without a license. Plea, not guilty.</p> <p>On the trial, it was proved that the defendant sold whiskey in the borough of Connellsville, Fayette county, in quantities not loss than one gallon, which he had manufactured at his distillery in the borough of Brownsville, in said county. Further, that the defendant was appraised as a distiller in said county, and had paid the proper county tax, as distiller, for the year in question; it was not shown that he sold liquor at his distillery, or at any other place within the county except in the borough of Connellsville.</p> <p>The court charged the jury as follows: “ The defendant’s counsel has requested us to instruct you that the payment of this distillery tax did give him the right to sell this manufactured liquor at any one place in the county, but no other. But under' the view that we take of the law we refuse to so instruct you, and instruct you that the payment of the tax in 1882, by William Britton, to the county treasurer on his distillery in Brownsville, would not authorize him to sell in Connellsville the whiskey made at his Brownsville distillery, and that therefore, under the evidence in this case, it will be the duty of the jury to render a verdict of guilty if you believe the witnesses who have testified in regard to the alleged sales.”</p> <p>Verdict, guilty. The defendant was sentenced to pay a fine of $200, and the costs of prosecution, and to stand committed until the sentence was complied with. The defendant, having obtained a special allocatur, took this writ of error, assigning for error the above instruction of the court, and the sentence.</p>

214. This was an action on the ease, by the Erie Dime Savings and Loan Company against Aúna M. Parsons, (afterwards intermarried with S. A. McNulty) executrix of the will of James W. Parsons deceased. After suit brought the defendant died, and her executor, John P. Vincent -was substituted of record as defendant.

<p>1. The provisions of the Act of April 1, 1884 (P. L., 163), authorizing the Court of Quarter Sessions to declare alterations of borough limits, is not repealed by the Act of April 3, 1851, section 80 (P. L., 320), requiring the burgess and council of a borough, on petition of owners of lands adjacent to the borough limits, to ordain the admission of such lands as part of the borough. The two Acts are in pari materia, and are to be construed as one enactment.</p> <p>2. Where the records in the Quarter Sessions of the original incorporation of a borough, as also those of the subsequent enlargement of its limits, are lost, but- the petition and decree are recorded in the Recorder’s office, as provided for by the Act of 1834, such record is evidence, and cannot bo questioned in a proceeding in equity to restrain the borough from exercising jurisdiction over a section included in the enlarged limits.</p> <p>3. In such case it is presumed that the Court of Quarter Sessions required strict compliance with the provisions of the Act before the decree was made and recorded, especially after lapse of time, and when the citizens residing within the borough iimits thereafter acted as if the decree were valid. .</p>

159. This was an action of trespass on the case, by Henry E. Longenecker, and Mary his wife, against the Pennsylvania Railroad Company, to recover damages for the death of the plaintiff’s minor son, caused, as alleged, by the negligent running of a train on the defendant’s railroad.

<p>Error to the Court of Common Pleas of Delaivare county : Of January Term, 1883, No. 244.</p> <p>Ejectment, by Lavinia J. Lawrence against Thomas D. Lawrence and Patrick Raidy, to recover the undivided one-half part of a certain tract of land in Havcrford township, Delaware county.</p> <p>On the trial, before Clayton, P. J., the following facts appeared: Both parties claimed title through one Clement</p> <p>Lawrence, whose will, dated October 16, 1844, and duly proved in November of the same year, contained the following item in regard to the land in question:</p> <p>“I give and devise unto Thomas D. Lawrence and Mordecai Lawrence, sons of my brother Henry Lawrence, deceased, all that messuage and tract of land situate in the township of Haverford aforesaid, bounded by Darby creek and lands of Mary Bond and others. To have and to hold the said messuage and tract of land to them, the said Thomas D. Lawrence and Mordecai Lawrence, and their heirs, as tenants in common and not as joint tenants: But if the said Mordecai Lawrence should die without leaving lawful issue, then and in that case, 1 give and devise the moiety or undivided half part of said messuage and tract of land, with the appurtenances thereunto belonging devised to him, to the said Thomas D. Lawrence, his heirs and assigns forever.”</p> <p>The will further contained a devise of certain mill property to William P. Lawrence, “and his heirs,” but if William should die without leaving lawful issue the same to go to Thomas, “ his heirs and assigns forever; ” also a devise of a tract of land in trust for Clement Lawrence (another nephew), “his heirs and assigns forever” ; but if Ke should not live to the age of twenty-one years, the said tract of land to go to the oldest son of Thomas then living, subject to the same conditions. Then followed two devises of real estate, one to William, “ his heirs and assigns forever,” and finally eleven bequests of personal property, in each of which the words “heirs and assigns” were added to the name of the legatee.</p> <p>The testator died unmarried and without issue, leaving as his next of kin a brother, Joshua Lawrence, and nephews and nieces, children of deceased brothers.</p> <p>After the testator’s death the said Thomas D. Lawrence and Mordecai Lawrence held the property in question as tenants in common, during the lifetime of the said Mordecai, sharing the rents and profits, the property being occupied by tenants under them.</p> <p>On May 28,1878, Mordecai Lawrence and his wife executed a deed, which was duly acknowledged and recorded, to Lavinia J. Lawrence, for his undivided half of the premises in dispute, the consideration being one dollar. This deed recited a trust in Lavinia to reconvey to Mordecai, and that it was for the purpose of barring all estates tail in the said Mordecai. Lavinia J. Lawrence executed a deed the same day to the said Mordecai Lawrence, for the same premises, which was also duly recorded, 'and recited the above conveyance to her.</p> <p>In Februar}^ 1880, Mordecai Lawrence died, leaving a widow but no children, never having had a child born unto him. After his death Thomas I). Lawrence retained possession of, and continued to lease, tíre said premises.</p> <p>At the time of the testator’s death Mordecai had been married about twenty years; and William P.'Lawrence, who was older than his brothers Thomas or Mordecai, had been married about fifteen years and was also childless.</p> <p>Lavinia J. Lawrence was adopted by Mordecai Lawrence, by Act of Assembly approved February 9, 1871, and brought this suit, claiming as devisee under his will.</p> <p>The defendants submitted the following points:</p> <p>1. From the context of the will of Clement Lawrence it appears that he intended a distinction between the words “ heirs ” alone and the words “ heirs and assigns; ” that when he used the latter words he intended an absolute estate, and that as both William P. Lawrence and Mordecai Lawrence, with respect to whom the testator used the word “heirs” alone, had been married many years, but had never had any children, the testator intended by the word “ heirs,” in the devise to them, to say children, and consequently the devise to Mordecai was not an estate tail.</p> <p>Answer. This point is negatived.</p> <p>2. By the will of Clement Lawrence the estate devised to Mordecai Lawrence, in the premises in question, terminated upon his decease without issue.</p> <p>Answer. This point is negatived.</p> <p>3. The deed executed by Mordecai Lawrence, dated May 28, 1878, was ineffectual to bar an estate tail, if any existed in the grantor.</p> <p>Answer. This point is negatived.</p> <p>4. The verdict must be for the defendant.</p> <p>Answer. The point is negatived.</p> <p>The court directed the jury to find a verdict for the plaintiff. Verdict accordingly, and judgment thereon, whereupon the defendants took this writ of error, assigning for error the answers to their points, and the instruction to find a verdict for the plaintiff.</p>

<p>It is competent for the parties to a judgment (where the rights of third parties are not involved), hy their parol agreement to change the purposes for which the judgment may be held as security. Thus, upon the payment in full of a judgment debt, the parties may agree that the judgment shall not be satisfied of record, but may remain as security for another loan made or to be made by the holder of the judgment to the defendant in the judgment. No one but a lien creditor whose rights would be affected can complain of such an agreement. It would be inequitable to permit the debtor to repudiate the agreement after his judgment creditor had acted upon it at his request.</p>

132. Appeal of Abraham Wanger, guardian of William Lewis, a minor, from a decree of said court, dismissing his exceptions to the report of an auditor, appointed to audit the account of the administrator of Margaret Lewis’, deceased, and to report distribution of tbe funds in said administrator’s hands, and distributing the fund.

15. This was an action of debt (afterwards changed to assumpsit) by Isaac Hugus against Edward Alcott, to recover on a written agreement for the value of certain growing timber, which the defendant had contracted to pay for by notes at three, six, nine and twelve months.

318. Appeal of W. W. Patrick from a decree of.said court, confirming the report of an auditor appointed to distribute the fund arising from the sheriff’s sale of certain mortgaged premises, under proceedings on the mortgage.

240. ' Assumpsit, by James Parson against the Township of Somerset, to recover damages for injury to a plow while plowing a road. The suit was originally brought before a justice of the peace, who gave judgment for the plaintiff for the Sum of $8.00. On appeal to the common pleas it was tried twice, each trial resulting in a verdict for the plaintiff for $8.00, which, according to the evidence, was the value of the plow.

104. Appeal of William R. Haworth et al. from a decree of the said court, overruling their exceptions to the report of a commissioner appointed in the matter of a petition of Lydia Dover, deciding that certain land in possession of the appellants was subject to a testamentary charge, under the will of David Ditlow, deceased, for the support of said Lydia Dover, and requiring the appellants to pay a certain sum to the representatives of said Lydia Dover.

448. Trespass, vi et armis, by Thomas F. Laubach and Sarah A., his wife, in right of said Sarah, against Charles Liclitenwallner, James Liclitenwallner and Henry Roth. The narr. declared upon an assault and battery of the plaintiff Sarah, and injury to her goods, in'ejecting her and them from a house.

134. This was an action of trespass on the ease by Enos Erdman and Jacob Geisiuger against Solomon Geliman, to recover damages for backing up the waters of a certain stream, thereby impeding the operations of the plaintiff’s mill. Plea, .not guilty. The material facts of the case, as they appeared on the trial, before Albright P. J., together with a portion of the charge of the court, and the matters assigned for error, are fully set forth in the opinion of this court.

303. Appeal of A.-S. Grim and Bella D., his wife, S. A. Feldman and Anna M., his wife, and Bartley Murtaugh and Rachel P., his wife, from a decree of the said court, upon the first account of Joseph Schnurman, executor of Henry Schnurman, deceased.

308. Trover and conversion by Edwin Keller and Samuel S. Keller, against George W. Stuckert, for a hearse. Plea not guilty. The case was, by agreement, tried without a jury, before Albrtotit, P. J., whose findings of fact and conclusions were as follows: First — That on October 11, 1879, the plaintiffs entered in this Court a judgment in their favor and against Joseph Keller, on a promissory note with warrant for confession of judgment, for the sum of 85,094.

<p>Appeal from the Orphans’ Court of Lycoming county. In Partition: Of January Term, 1884, No. 289.</p> <p>This proceeding in partition was commenced by the filing of a petition by James M. Gillilan and Sarah W. Gillilan his wife, in her right, Alexander E. Harvey and Rachel L. Harvey his wife, in her right, and Lewis A. Scott and Fanny W. Scott his wife, in her right, setting forth that Richard Wistar, late of the city of Philadelphia, died November 3, 1862, intestate, and a widower, leaving to survive him as his sole heirs at law five children, to wit, the said three petitioners, Sarah W. Gillilan, Rachel L. Harvey and Fanny W. Scott, and two sons, Richard Wistar and William Lewis Wistar. That said Richard Wistar died seised, inter alia, of four certain tracts of land situate in Lycoming county, particularly described by metes and bounds. The petitioners prayed that an inquest be awarded to make partition of the said real estate among the aforesaid parties according to their respective rights.</p> <p>A rule to show cause having been granted upon the said Richard Wistar and William Lewis Wistar, they appeared, and by paper filed it was agreed by all the said parties in interest, petitioners and respondents, that John S. Laird, Evan Starr and W. H. Warn be nominated as commissioners to divide and value said real estate to and among said parties with the same effect as a sheriff’s inquisition for the same purpose; this nomination was approved by the court.</p> <p>Thereupon a writ of partition was issued authorizing and directing said commissioners “ to go to the premises aforesaid, and in the presence of the parties or their legal representatives, they having been severally warned, if upon being warned they will be present, having respect to the true value thereof, that they inquire whether the real estate aforesaid can be conveniently parted and divided, so as to accommodate all the children and legal representatives of said deceased without prejudice to or spoiling the whole ; and if they can, that then they part and divide the same among said children and legal representatives of said decedent. But if such partition cannot be made as aforesaid, that they then inquire,” etc., etc.</p> <p>The said commissioners afterwards filed their report, setting forth that after due notice, etc., they proceeded to view the real estate described in said order of court, and. having due respect to the value thereof, found that the same could be equally parted, and divided among the children and heirs of said Richard Wistar, deceased, without prejudice to or spoiling the whole, and have accordingly parted the same into five parts, which are of equal value, and have divided them among the said children and heirs, as follows, viz:</p> <p>Purpart No. 1. Bounded and described, etc.,..... Which said piece, parcel or lot of land, with the improvements, we have divided and allotted to Sarah W. Gillilan, wife of James M. Gillilan, and one of the children and heirs of said Richard Wistar, deceased.</p> <p>And setting forth similarly as to each of the other four purparts, one thereof being divided and allotted to each of the other parties in interest, viz : Purpart No. 2 to Rachel L. Harvey; Purpart No. 3 to Fanny W. Scott; Purpart No. 4 to William Lewis Wistar, and Purpart No. 5 to Richard Wistar.</p> <p>The commissioners further reported that they had caused the said purparts so parted, divided and allotted to be surveyed, and the lines separating them to be marked on the ground, and they attached to their report a draft or plot showing how they had parted, divided and allotted said lands into purparts of equal value.</p> <p>To this report Richard Wistar and William Lewis Wistar filed the following exceptions:</p> <p>1. Because the commissioners have not valued the real estate in said writ of partition described, as a whole.</p> <p>2. Because the commissioners have fixed no value upon any of the purparts into which they have divided said real estate.</p> <p>3. Because the commissioners have allotted the five purparts into which they have divided the said real estate to the five different heirs of Richard Wistar by name.</p> <p>. 4. Because the Act of Assembly authorizing the Orphans’ Court to issue writs of partition does not allow the commissioners to divide the real estate into purparts and arbitrarily allot them to different heirs.</p> <p>The court filed the following opinion, dismissing the exceptions :</p> <p>“ The primary duty of an inquest or commission in partition in the Orphans’ Court is to divide the real- estate into as many purparts of equal value as there are heirs or persons entitled thereto, and make allotment of the same. For many obvious reasons it rarely occurs that this can be done, and hence the existence of such power and practice is obscure. A careful examination of the statutes on the subject, considering the purpose to be effected, and the rules' of the common law which preceded the statutes, is convincing that such power and practice does exist. In the case before us the real estate to be divided is Unseated land, valuable, mainly as timber land, and as it was practicable so it became the duty of the commissioners, under their oaths, to divide the land into so many parts of equal value as there were persons entitled to share-therein.</p> <p>“ It is only when ‘ equal partition in value ’ cannot be made that the provisions of the law for returning a value for the whole or for each part becomes necessary.</p> <p>“ For these reasons, and because there is not even an allegation of inequality, unfairness orinjustice in these proceedings, all the exceptions are dismissed at the cost of the exceptants.”</p> <p>A final decree was entered confirming the report of the commissioners, and adjudging that said partition and allotments be and remain firm and stable forever.</p> <p>The exceptants, Richard Wistar and William Lewis Wistar, thereupon took this appeal. A certiorari issued from the Supreme Court on January 12, 1884.</p> <p>The petition as filed, in setting out the description of one of said tracts contained the following clause: “Reserving and excepting therefrom about twenty acres, known as the ‘Barber Improvement,’ which your petitioners are informed is now* being cultivated by one-Gray. This reservation is made without admitting title or right of possession in said Gray or any one else, except the heirs of the said Richard Wistar, deceased, to said ‘Barber’s Improvement,’ or any part thereof, but the same is reserved out of abundance of caution.” It afterwards appeared that said Gray occupied said twenty acres under lease from the heirs of the intestate, and said lot was, at the request of the parties, included in the partition by the commissioners.</p> <p>The court below, after the record had been removed to the supreme court, made the following order:</p> <p>And now, February 7, 1884, on reading and filing of affidavits of John S. Laird, W. H. Warn and Evan P. Starr, the commissioners in the above matter, and of Joseph A. Gilmore, L. E. Schuyler and Franklin Gray, and it appearing to the court that the title to that portion of the Leonard Leshart tract, known as the “Barber Improvement,” containing twenty acres, more or less, is in the heirs of said Richard Wistar, deceased, and- not in Franklin Gray, and that said land was included in the report of the commissioners at the request of D. B. Dykins, agent and attorney in fact for Richard Wistar and William Lewis Wistar, and that no injustice will be done the said Richard Wistar and William Lewis Wistar by the amendments asked for: On motion of attorneys for the petitioners, to which exceptions are filed by exceptants, after hearing, it is ordered that the petition filed May 7, 1883, and the writ or order issued to the commissioners,' be amended by striking therefrom the words contained in the description of the Leonard Leshart tract as follows [being the clause above cited].</p> <p>Richard Wistar and William Lewis Wistar excepted to the amendment? for the following reasons:</p> <p>1. Because it appears, by the affidavits filed, „that the counsel for the petitioners were aware of the mistake made in the petition and writ by the insertion of the “ Gray reservation ” as early as September 19, 1888, and the application should then have been made for the amendment.</p> <p>2. Because an appeal was taken from the final decree in this estate upon January 9, 1884.</p> <p>3. Because the paper book of the appellants has already been printed and served.</p> <p>Objections overruled; exception.</p> <p>The appellants filed a number of assignments of error, the material ones being to the overruling of their exceptions to the commissioner’s report, as above set forth; to the final decree in partition; to the action of the court in permitting the petition to be amended after appeal taken, and because the petition, as originally filed, contained a statement of adverse possession in another of a portion of the real estate to be parted, and in such case a partition cannot be made.</p>

124. This was an action of replevin by A. D. Hower against S. P. Wallis, L. G. Huling and Ida M. Huling, his wife, John Adam Swartz, and Peter Reeder, for “one-half of all the sawed lumber and logs sold by the sheriff, April 29, 1881, on an alias fi. fa. Ho. 14, May term, 1881, on writ of J. Ulrich, for use, &c., v. L. G. Huling, of the value of $100.” Plea, non cepit and property.

109. . Trespass, q. e. /., by Sarah E. Sieger, executrix of Reuben Sieger, deceased, against Jacob Ritter and Mrs. Mary E. Brobst, née Ritter, to recover damages for an alleged illegal use by defendants of a certain wall belonging to the estate of plaintiff’s testator. Pleas, not guilty, with leave, etc., liberum tenementum.

155. This was a feigned issue under the Sheriff’s Interpleader Act, between Mary J. Stockberger, plaintiff, and Lewis Troxell, defendant, to determine the ownership of certain personal property, levied upon in an execution on a judgment held by Lewis Troxell against Christian Stockberger, as the property of the defendant, and claimed by his wife.

<p>Error to the Court of Common Pleas of Lehigh county: Of January Term, 1884, No. 289.</p> <p>Assumpsit, by Jeremiah Roth, administrator of Henry Weaver, deceased, against Job Weaver, to recover the sum of $500, with interest, paid to the defendant by one Peter Benner, which sum, it was claimed by plaintiff, belonged to the estate of Henry Weaver, deceased.</p> <p>On the trial, before Aubrtg-ht, P. J., the following’ facts appeared : Henry Weaver died in 1878 intestate, leaving surviving him three children, Enos Weaver, Elizabeth Heimbach, née Weaver, and the said Job Weaver. Among the assets of his estate was a note for $500, drawn by one Peter Benner to the order of Henry Weaver, which note was paid by Benner in 1880 to Job Weaver, and the proceeds retained by him. On April 22, 1882, Enos Weaver died, and in 1883, Jeremiah Roth, having been appointed administrator of Henry Weaver, deceased, brought this suit against Job Weaver to recover the amount of the Benner note, with interest.</p> <p>The defendant was offered in his own behalf to prove that “ subsequent to the death of Henry Weaver, deceased, be and the two other heirs, viz., Elizabeth Heimbach and Enos Weaver, agreed to a division of the personal estate of the said decedent; that each party accepted the shares and held shares allotted to each of the parties, and that the $500 Benner note was delivered and given to Job Weaver, the defendant, in consideration of the services rendered to bis father during an illness of five years and'eight months.”</p> <p>Objected to by plaintiff on the ground that witness is incompetent to testify as to any matters that occurred prior to the deaths of either Henry Weaver or Enos Weaver.</p> <p>“ The Court: The objection to the witness testifying to matters occurring in the lifetime of Henry Weaver, deceased, also the objection to his testimony as to any contract between' Mr. Enos Weaver, now deceased, and himself, or to any contract to which Enos Weaver was a party so far as it relates to matters occurring in the lifetime of Enos Weaver is sustained. Exception.” (First assignment of error.)</p> <p>The court instructed the jury that the defendant could not set off in this action any claim for services rendered to his father, but that such claim could only be set up on the distribution of Henry Weaver’s'estate in the Orphans’ Court; that if the jury beiieved that Benner had-paid the note to. Job Weaver they should render a.verdict for the plaintiff.</p> <p>Verdict for the plaintiff for $606.46, and judgment thereon. The defendant took this writ of error, assigning as error the exclusion of his testimony and the said instruction of the court.</p>

12. Bill in equity, filed by Ezra Rathmell and Thomas Rathmell, members of a firm trading as G. F. Braun & Co., against their co-partner, G. F. Braun, praying for an account of the' business of said firm.

165. Ejectment, brought to April term, 1883, by Joseph Devling against Amos Hollinger, for a tract of laud situate in Rush township, Céntre count}'', containing 433 A.,153 P., surveyed in the warrantee name of Jacob Myer. Plea, not guilty.

216. Tliis was an action of covenant, by the Lycoming Fire Insurance Company against the Loudon and Lancashire Fire Insurance Company, to recover for a loss sustained by the plaintiff on a policy of insurance issued by them to one Thomas Helm, which risk it was claimed by the plaintiff was ro-insured to them by the defendant.

<p>Appeal from the Orphans’ Court of JElk county : Of July Term, 1883, No. 225.</p> <p>Appeal by John Moyer, administrator c. t. a. of Isaac Coleman, deceased, and nine others, from a.decree of said court sustaining a petition filed by Charles A. Brown, praying for specific performance of an alleged oral agreement for the conveyance of certain real estate to Brown by the said Isaac Coleman at his death.</p> <p>The petition alleged that about the summer of 1876 Isaac Coleman entered into' an agreement with the petitioner by which said Coleman in consideration of support by petitioner agreed to convey to petitioner at his, Coleman’s, death all that portion of his farm situated northwardly of the road leading from Brandy Camp to Centreville, containing about 75 acres. That petitioner entered into possession of said land under said agreement and supported said Coleman and his wife until his death, and made valuable improvements. That on or about February 7,1877, said Coleman made a will in which he devised the said land to the petitioner, as follows:</p> <p>“ Third. I give and bequeath to my grandson, Charles A. Brown, all that portion of my farm situated northwardly of the road leading from Brandy Gamp to Centreville, said portion containing about seventy-five acres, said Charles A. Brown to come in possession of said property at the time of my decease, and in consideration whereof the said Charles A. Brown is to maintain and support myself and wife as long as I live.”</p> <p>That afterwards, on or about September. 16, 1878, said Coleman made another will revoking the one of February 7, 1877, and devising said estate to Abigail Coleman for life and at her death to liis daughters named in said will, and died September 12, 1879.</p> <p>Abigail Coleman (the decedent’s widow) filed an answer denying any knowledge of the agreement or any compliance with the terms thereof by Brown, even if it did exist.</p> <p>The cause was referred to George A. Rathbun, Esq., as auditor, who found the facts substantially as set out in the petition. In reference to the making and carrying out of the alleged agreement, he reported, inter alia, as follows : “ There is no direct evidence of any talk between Coleman and Brown as to any bargain, but it is clearly proved by Harriet Brown, the mother of Charles A. Brown, who was a daughter of said Coleman, and by James Penfield, a son-iu-law, what the terms of the agreement were. Coleman was anxious to have Brown go upon the place, and take charge of it and support him and his wife Abigail. In consideration of this he agreed to give him the portion of the farm lying north of the road passing through the farm, but as Brown was in debt he was not to make a deed for the land, but was to provide for his receiving title by will......In pursuance of said agreement Brown entered into exclusive possession of the part he was to have; continued in possession, made improvements and performed his agreement to support Coleman and his wife during the life of the former. ..... He contributed to their support in various ways and took care of the stock, a horse and cow, belonging to- Coleman, and by himself and servants did all that was necessary in the way of chores and work about the place. He repaired the barn upon the part occupied by Coleman, and also built a wagon shed there. He made improvements upon the part occupied by himself, clearing some land, making additions to the buildings, a cave or outside cellar, brought water in pipes to the house, repaired fences on both parts.</p> <p>. ... . It further appears, as showing the recognition of Brown’s rights, that an outlying portion of the-land cut off by the road and containing some nine acres or thereabouts, was sold by Brown to one Bordorocco; Coleman making the deed and Brown receiving the purchase.money.”</p> <p>The testimony of Penfield and Harriet Brown, referred to by the auditor, was, inter alia, as follows: Penfield, who drew the will of 1877, testified in regard to it: “ At one time Brown asked me'why I did not write it. Mr. Coleman was not present at any of the times I talked with Brown. I asked Brown if he understood how Mr. Coleman wanted the will written as to that part of the land. I told Brown that Mr.-Coleman proposed to leave that part of the farm to him on condition that he (Brown) should support Coleman and wife as long as they lived......He seemed to be satisfied and said that was the way he wanted it, and wanted some understanding about it. I then came back to Ridgway after promising to write the will. I prepared the will within a few days and took it over; I think within about two weeks I stopped at Brandy Cam]3 and took Willis Taylor along with me, it being Mr. Coleman’s request that Taylor should be a witness; I read the will to Mr. Coleman in a room alone with him; asked him if it was as he wanted it. He said it was as he wanted it. He then signed the will in the presence of myself and Willis Taylor.”. Harriet Brown testified: “Had conversation with Isaac Coleman in regard to Charles A. Brown’s going to take charge of the farm, at different times before he went up there. ......My father wanted Charley to go there to take charge of him inhisold age......He persuaded him to go on condition that he, Charley, should have that part of the farm that he called the north part. ' Charley was to take care qf father and provide for him as far as he was able to......He was to will that piece to Charley. At that time Charley was a good deal in debt, and he thought the farm might be taken from him if he deeded it to him. He wasn’t.able to attend, to making the will for some time. He spoke repeatedly of having his will made, and of having it made by James Peufield. Always spoke of his making it. My father did not tell me that he had made the will. Charley went upon the place and lived on the north side. Have been there part of the time, made my home there. Charley provided for my father all that was necessary, as far as he could without going in debt, and that father said he didn’t want him to do. He furnished him coal and wood, potatoes, flour, shoes, tea sometimes.”</p> <p>In reference to the law involved, the auditor reported:</p> <p>(3.) “ That the will of February 7, 1877, was a sufficient reduction of the agreement to writing, to take the agreement out of the Statute of Frauds, if it was originally within it, or at least sufficient evidence of the terms of the contract: Brinker v. Blinker, 7 Barr, 58; Hart v. Carroll, 4 Norris, 508.”</p> <p>(6.) “That it is impossible, even if the contract remained entirely in parol, to ascertain a sum which would compensate the petitioner, and it would therefore be inequitable to rescind it.”</p> <p>(7.) “ That as the agreement contemplated the vesting of the title by will, strict specific performance cannot be decreed, but that the petitioner may have record evidence of his title the Administrator c. t. a. should be decreed to make, execute and deliver to the petitioner a deed for the portion of the Coleman farm lying north of the road leading from Brandy Camp to Centreville.”</p> <p>Exceptions filed to the findings both of law and fact in this report, were overruled by the court, and a decree entered ordering the administrator c. t. a. to make and deliver a deed to the petitioner as recommended by the auditor. Whereupon Moyer, the administrator c. t. a., Abigail Coleman, the widow, and eight daughters of the said Isaac Coleman, deceased, took this appeal, assigning for error the decree of the court.</p>

87. Appeal by Cornelia R. Sproul, administratrix of Isaac G. Sproul,.deceased, from a decree of said court, dismissing her exceptions to the report of an auditor in the distribution of the estate of Henry Sproul, deceased, in the hands of his executrix, and confirming the auditor’s report.

38. Appeal of Henry Sproul, Jr., from a decree of said court dismissing his exception to the report of an auditor in the matter of the distribution of the estate of Henry Sproul, deceased, and confirming the auditor’s report. This appeal was from the same decree as that appealed from in “ Cornelia R. Sproul’s Appeal,” reported supra.

3. Scire facias sur municipal claim, by tbe city of Scranton against tbe Pennsylvania Coal Company, owner or reputed owner, to recover tbe sum of $763.63, being tbe amount of an assessment laid against certain property fronting on Washington avenue, for the cost of grading tbe same.

Abpeal of Alva I. Lord from the Court of Common Pleas of Wayne county: In Equity: Of July Term, 1883, No. 27. Bill in equity between William Colbert and Franklin Holbert, surviving partners of the firm of Holberts & Branning’, complainants, and Mahlon McKinney and Alva I. Lord, defendants, praying a decree for the specific performance of an alleged contract for the sale of real estate to the complainants.

92. This was an action on the ease, by E. P. Woodbridge and wife against the Delaware, Lackawanna & Western Railroad Company, to recover damages for the death of Theodore Wood-bridge, the son of the plaintiffs, six years of age, caused by the alleged negligence of the defendant’s servants. On the trial the evidence on behalf of the plaintiffs was to the following effect: The plaintiffs lived in the town of Babylon, on the line of the defendant’s road.

148. Debt, by the county of Lackawanna against A. B. Stevens, to recover an alleged excess in the amount of fees received by the defendant as sheriff, for the service of jury notices during the year 1881.

<p>1. Where the surface of lands and the minerals in place thereunder have been severed by the agreement or conveyance of the owner, and the respective divisions have become vested in different owners, the municipal authorities are bound to levy their taxes according to the ownership and value of these divisions. And each owner can bo made responsible only for the tax on his interest, whether underlying strata or surface.</p> <p>2. A. made an agreement with B., leasing to Mm all the coal beneath the ' surface of a certain tract of land, of which A. was the owner. The lessee was to mine and remove in each year at least a certain number of tons, which he was to pay for monthly, at a certain rate per ton, whether mined or not, unless mining should be prevented by certain specified contingencies. In ease of neglect for thirty days to pay the said royally, it might be distrained for. And for continued default the lease might be forfeited. The letting, however, was not for a term certain with reversion to the grantor, but without reversion and to be perpetual, until all the coal under the surface had been mined. And the rights and privileges therein conferred were extended to the heirs, executors, administrators and assigns of the respective parties:</p> <p>Held, that this agreement was not merely a license or lease to mine coal to become the lessee’s when mined, but that it operated as such a severance of the surface and subjacent strata, and a sale or assignment of the coal in place, as would relieve the owner of the surface from responsibility for taxes levied upon the coal.</p> <p>3. The liability of the owner of coal or mineral in place for taxes levied thereon, resxxlts from the nature of Ms estate or interest, and, therefore, he is not relieved from this responsibility, on the principle inelusio unius est exclusio alterius, by an express covenant in the instrument of severance that he shall pay all taxes levied upon the coal mined, without recourse to the lessor to refund the same.</p>

<p>1. A receipt from a mortgagee to a mortgagor, for the same amount as tho face of the mortgage, and specified to be in full satisfaction thereof, is evidence of payment, but not conclusive of the fact. It is susceptible of explanation or direct contradiction.</p> <p>2. While such a receipt would estop tho mortgagee from denying payment of the mortgage, as between himself and a third party who had been induced, with the assent of tho mortgagee, to act upon tho faith thereof, yet it would have no such effect as between tho mortgagee and other persons claiming to have been misled by its being in the hands of said third party; nor, as between the mortgagee and mortgagor, would it estop the former from introducing evidence that tho mortgage was not in fact paid.</p> <p>3. Notwithstanding the fact that bankruptcy proceedings have been instituted against a mortgagor, the mortgagee, if he does not prove his debt in the proceedings in bankruptcy, is not debarred from afterwards proceeding in a state court by scire facias upon his mortgage.</p>

<p>Appeal from the Court of Common Pleas of Lackawanna county: Of January Term, 1884, No. 5.</p> <p>Bill in equity, by F. W. Mott and Harriet, his wife, in her right, against Nicholas Washburn and Maria, his wife, praying for an injunction to restrain the defendants from entering upon or passing over a certain lane, and from entering upon and taking possession of a certain strip or parcel of land, in the possession of the complainants, and for a decree to settle and quiet the complainants’ alleged title to the premises in question.</p> <p>A demurrer to the bill was overruled, and ah answer was filed, wherein the defendants set up title in themselves to the right of way over said lane, and to the strip of land in dispute, and averred want of equitable jurisdiction, on the ground that there was an adequate remedy at law.</p> <p>The material facts, as they appeared from the pleadings and the evidence, are set forth in the opinion of this court.</p> <p>The master reported a decree in accordance with the prayers of the bill. Exceptions filed by defendants to the master’s report were overruled by the court, Hand, J., filing an opinion, in which he held that “ the plaintiffs are in a position to ask that the defendants shall assert their claims in a court of law, and that until they do, the plaintiffs may ask for the interposition of equity to maintain their status.” A decree was entered in accordance with the recommendation of the master, granting the relief prayed for in the bill, “without prejudice to the defendants in any action at law that they may see fit to bring for the assertion of their claims to said lane and said strip of land, or either of them.”</p> <p>, The defendants took this appeal, assigning for error the overruling of the demurrer to the bill, the dismissal of their exceptions to the master’s report, and- the decree.</p>

<p>1. Under the Act of May 3, 1850, § 1, (P. L., 654,) which vests in district attorneys, “ the duties now by law to be performed by deputy attorney generals,” a writ of quo warranto may issue on the information of the district attorney to determine the right of certain persons to act as school directors.</p> <p>2. A preliminary rule to show cause is not indispensable to the issuance of a writ of quo warranto at the instance of a private prosecutor. The granting of the rule is in the sound discretion- of the court. If it appears . at any time during the trial that the writ issued improvidently, the court may refuse to entertain it.</p> <p>3. The citizens of a school district voted in 1879 for nine persons to serve as a school-board, of which six was the legal number. The nine so voted for organized as such board, and for some time .transacted its business, but subsequently, on the discovery of their mistake, three withdrew from further participation in its affairs. At an election in 1881 to fill-two vacancies which had subsequently occurred in said board, many citizens of the district, in the belief that the entire board then existing was illegal, voted for six persons to constitute an entirely new board. Of these A. and B. received the highest number of votes polled at said election. Held,</p> <p>(1.) That the voting for the three illegal directors in 1879, and their subsequent exercise of power as school directors, did not invalidate the right of the other six directors elected at the same time to constitute the school board, and that there were therefore but two.vacancies to be filled in 1881.</p> <p>(2.) That A. and B., having received the highest number of votes at the-election in 1881, were duly elected to fill said vacancies.</p> <p>(3.) That A., by subsequently refusing to act with the existing board, forfeited his right to a seat therein.'</p>

171. This was a petition by twenty-seven qualified electors ox Lackawanna county, filed in the Court of Quarter Sessions, contesting the election of Martin McDonough, who was returned as elected, on November 7, 1882, to the office of prothonotary of said county, and averring that Thomas H. Dale received a majority of the lawful votes cast at §aid election.

<p>1. Where a bank is the holder of a note payable at the banking house, and upon its maturity the maker has a cash deposit in said bank exceed-^ng the amount of the note, which deposit is not specially applicable to a particular purpose, the bank is bound to charge up the amount of the note against the deposit. In such case the note is in effect a draft on the bank in favor of the holder, and in discharge of the indorser.</p> <p>2. If, in such case, the bank does not charge up the note against the maker’s deposit, but allows the note to go to protest, the bank cannot recover in a suit against the indorser.</p> <p>8. A. executed two promissory notes made payable to the order of B. at a bank of which A. was cashier. B. indorsed the notes, and had them discounted at the said bank. A. refused to pay at maturity, and the notes were protested. In an action by the bank on B.’s indorsement: Held, that evidence offered on behalf of the defendant to show an agreement between A. and B. that B.’s indorsement should impose' upon him no obligation to pay, and that the bank was protected from loss through this agreement by stock in the bank owned by A., and by his bond as cashier, is irrelevant and inadmissible.</p> <p>Held further, that A.’s account with the bank is admissible in evidence, on behalf of the defendant, to show a balance in A.’s favor, on the day of the maturity of the notes, sufficient to have paid them.</p> <p>4. People’s Bank of Wilkesbarre v. Legrand, 7 Out., 309, distinguished.</p> <p>5. The erroneous admission of irrelevant testimony which, however, was harmless, is not ground for reversal, upon writ of error.</p>

<p>1. The current profits of a partnership are personal property, and upon the death of a partner descend as such under the intestate laws, whether the property of the firm be real or personal.</p> <p>2. During the continuance of a partnership, all the property of the firm, whether in fact realty or personalty, must be regarded for purposes of descent as personalty.</p> <p>3. Re-conversion of such personalty into realty will not take place until the dissolution of the firm and a settlement oi its accounts.</p> <p>4. Stipulations in articles of copartnership for the continuance of the firm after the death of a member and until the consent of all the partners is given to a dissolution, are valid and binding, and on the death of an individual partner will prevent a dissolution.</p> <p>5. Under such stipulations, until all the partners consent to a dissolution of the firm, and until a settlement of its accounts is made, tho interest of a deceased partner, and tho income accruing therefrom, are personalty and descend as such under the intestate laws.</p> <p>6. Foster’s Appeal, 24 P. F. Smith, 391, distinguished.</p>

330. This was an action of debt, by Jacob Bushong and Henry Bushong, doing business as Bushong &' Bro., against Daniel Shaaber, Adam Johnston and Henry Johnston, late trading as Shaaber, Johnston & Co., upon the following'note : No. 165. Office of the Berks County Railroad Co., Reading, May 13th, 1874.

This was an appeal by Annie M. Bitting and James Edward Bitting, minor children of Jacob Daniel Bitting, deceased, by their next friend and guardian, Henry Fegley, and Sarah Ann Bitting, widow of said Jacob Daniel Bitting, deceased, from a 'decree of said court, sustaining a demurrer to, and dismissing a.bill in equity filed by them against George Frill, praying for an' injunction to restrain the defendant from disturbance of a water right, as to which the defendant’s land…

<p>Error to the Court of Common Pleas of Berks county: Of January Term, 1884, No. 245.</p> <p>This was a feigned issue, under the sheriff’s interpleader Act, wherein Lavina Templin, wife of Levi Templin, was plaintiff, and Daniel W. Leinbach was defendant, to determine' the ownership of certain goods which had been levied upon as the property of Levi Templin under an execution upon a judgment against him, held by Daniel W. Leinbach, and which were claimed by Mrs. Templin as her property.</p> <p>On the trial, before Hagenman, P. J., the evidence on behalf of the plaintiff was to the following effect: In Í877 Levi Templin, a butcher, was financially embarrassed. Among other debts were two notes held by Amos Rothermel, his cousin, for the aggregate sum of $765. By an arrangement between Templin and Rothermel, certain personal property belonging to Templin, and used by him in conducting his business, was appraised at the sum of $700, and Rothermel agreed to take the same in payment of the notes, and to transfer the property back to Mrs. Templin upon her agreeing to pay the sum of $779.50, in instalments of $50 a month. This agreement was consummated in the following manner: At about two o’clock A. m., on December 18, 1877, the property was removed from Templin’s to a shed on the property of his adjoining neighbor, and there delivered to Rothermel, who gave up his notes. In the forenoon of the same day it was moved back to Templin’s place and delivered to Mrs. Templin, who thereupon executed and delivered to Rothermel an instrument of writing purporting to be a bill of sale of the same goods to him, reciting a consideration of $779.50 paid by Rothermel to her, and providing that upon payment by her to Rothermel of the sum of $50 on the first days of each month thereafter, until the said sum of $779.50, with interest, was fully paid, then the said instrument to be null and void, otherwise to remain in full force. Levi Templin then made an assignment for the benefit of his creditors. Mrs. Templin retained possession of the said goods, and the butchering business was continued by Levi Templin, for his wife, in the same place and manner as theretofore, except, that receipts and checks, &c., were signed “L. Templin, agent,” instead of “L. Templin.” Mrs. Templin paid regularly the instalments due Rothermel, the last payment being made February 14, 1879. Levi Templin claimed and received $300 in cash and furniture from his assignee for creditors, which he gave to his wife. There was no evidence that Mrs. Templin had any separate estate not derived from her husband.</p> <p>Upon August 10, 1880, Mrs. Templin presented her petition to the Court of Common Pleas of Berks county, praying that she might be declared entitled to the benefits of the Act of April 3, 1872, P. L., 35, entitled “An Act securing to married women their separate earnings,” which was granted by the court and the petition was duly recorded.</p> <p>The judgment of Daniel W. Leinbach against Levi Templin was entered September 20, 1880, upon a note dated June 1, 1877, and a fi. fa. issued thereon December 6, 1880, under which the goods in question were levied upon as the property of Levi Templin, and the same were claimed by Mrs. Templin, when this feigned issue was awarded.</p> <p>The defendant offered no evidence, but presented, inter alia, the following point:</p> <p>1. That the plaintiff having made claim to the property set out in the declaration by purchase during coverture, after the insolvency of the husband, she must show by evidence, .which does not admit of a reasonable doubt, that she bought it with her own money, and paid for it with funds which were not furnished by her husband. No such evidence having been given in the case, the plaintiff is not entitled to recover, and the verdict should be for the defendant.</p> <p>Answer. — We say to you, as we said before, the wife brought no money to her husband, and it comes back to the question, that if you find the transaction was a fair and honest one, between Templin and Rothermel, and there was a sale from Rothermel to Mrs. Templin, and she then carried on her business in her own name, the profits from the business were hers, and if from the profits thereof she paid for this property, the property was hers,- and was not liable to seizure under the execution; that I believe is a full answer to the point.</p> <p>The court, in the general charge, instructed the jury, inter alia, as follows: “A transfer, whatever it is, must be a transfer in good faith, and if this was a mere shifting around of the property so as to save it from creditors, and it was not done in good faith, the wife will receive no title. You have heard what the witnesses said about the bill of sale, and it is for the jury to say whether this was an honest, fair, and bona fide transaction; and if it was, under the view the court has of the law, the title passed over to the wife, upon her paying for it. It is claimed on the part of the defendant that all the earnings that were had, or everything that was done by the husband in carrying on the business of his wife, belonged to the husband. We say to you, as a matter of law, that the wife had a right to carry on business in her own name. She had a right to employ her husband as her'agent, and if the business was honestly carried along for the benefit of the wife, all the earnings that were had in the business belonged to the wife, and if the payment of the property was made by the earnings of the business which was carried on by the wife, the wife was legally the owner of it. If the husband’s money paid for the property, it would be the husband’s property. But if the. property was paid for by the business as it was carried on by the wife, the property was hers. . ... . The jury will ascertain from the evidence whether the property was paid for out of the business which was carried on by the wife ; and if so, she became owner of it when she made the last payment in February, 1879, and it being her property, the sheriff could not sell it, and for that property the verdict would have to be in favor of the plaintiff.</p> <p>Verdict and judgment for the plaintiff. The defendant took this wrik’of error, assigning for error the answer to the above point, and the portions of the charge above quoted.</p>

<p>Appeal from the Court of Common Pleas of BerTcs county: Of January Term, 1883, No. 348.</p> <p>This was a bill in equity by Magdalena Peiffer against John S. Rick, setting forth (1) that on March 16, 1878, Magdalena Peiffer executed a deed of assignment of all her estate to John S. Rick in trust, inter alia, to collect the rents, issues and profits, or permit the complainant to collect and enjoy the same, and upon her death to divide the personal estate among certain persons named, and to convey the real estate to certain others named.</p> <p>(2) That when the said deed was executed John S. Rick and A. G. Green, Esq., the attorney who drew the deed, represented to complainant that it was revocable, and could be annulled at pleasure; that on the faith of this representation</p> <p>she executed the paper, and without which she would riot have signed it.</p> <p>(3) That by virtue of said deed John S. Rick, the trustee, got possession of certain bonds, deeds, etc.</p> <p>(4) That on June 30, 1881, the complainant executed a deed duly revoking the dee'cT’bf July 6, 1881, and on July 12, 1881, gave to Rick, the trustee, actual notice of said revocation, and demanded a re-delivery of the personal property in his possession, and a re-conveyance of the house in Stouchsbhrg, which he refused to do.</p> <p>The bill prayed an account of the rents, issues and profits; an order to pay over the balance due; for discovery of the assets of the estate; and a re-conveyance of the real estate.</p> <p>After answer filed, the ease was referred to Isaac Heister, Esq., as master and examiner, who reported the facts as follows:</p> <p>In February, 1878, Mrs. Magdalena Peiffer, the plaintiff, was a widow, aged seventy-five years, unable to read or write, living in Stouchsburg, Berks county, possessed of an estate of four or five thousand dollars, and a life interest in a mortgage of twenty-five hundred dollars, given in trust for her by her former husband, to Augustus Burkholder. Her sister, Maria A. Phillips, aged about sixty years, lived with her. Her brother, John S. Rick, the defendant, aged about fifty-six years, lived in Port Clinton, Schuylkill county, where he has been for five years a justice of the peace. About February, 1878, while Rick was visiting Mrs. Peiffer in Stouchsburg, she expressed dissatisfaction with Burkholder, her trustee, and it was determined that Rick should be substituted for Burkholder in that trust. Rick offered to consult counsel as to the necessary steps to be taken, and accordingly, on March 9, 1878, called on A. G. Green, Esq., an attorney of Reading. [To Mr. Green, instead of asking for a change in the trusteeship of the Burkholder mortgage, Rick stated that his sister wanted to fix her property in some-way that she might not be subject to annoyance on the part of persons who might desire to borrow money of her.] Mr. Green suggested a declaration of trust, which he told Rick would, be permanent and could not be changed. Rick said he thought this was what Mrs». Peiffer wanted, but Mr. Green declined to draw the paper until he had seen Mrs. Peiffer personally.</p> <p>Rick then went to Stouchsburg and informed Mrs. Peiffer of his consultation with Mr. Green. He testified that he asked her whether she wanted to sell or dispose of any property ; told her that a deed of trust would be permanent, and that she could not change it; and that she said she did not want to sell any of the estate; that she wanted to keep her things together; and he then arranged to meet her in Reading on a day he would fix. Mrs. Peiffer’s recollection of this interview has entirely failed, but Mrs. Phillips testifies that Rick told Mrs. Peiffer that Mr. Green would draw up a paper by which he (Rick) would supersede Burkholder, and that he had been to Reading to consult Mr. Green about it. At this time, it must be remembered, [the only trust which Mrs. Peiffer has before her mind was the mortgage in which she proposed to substitute Rick for Burkholder as the trustee; she wanted it “sure,” as she defines the word “permanent,”] a.nd anticipated no necessity for changing that again. As to disposing of her property, she may well have answered that she wanted to keep her things together, or may have assented to Rick’s assuming entire control of her affairs without at all guessing the length to which he was leading her. Rick returned to Reading, fixed the following Saturday with Mr. Green for the meeting, and notified Mrs. Peiffer of the day by mail.</p> <p>On the morning of the day appointed, March 16,1878, Rick came from Port Clinton, and Mrs. Peiffer and Mrs. Phillips from Stouchsburg, and -meeting at the depot in Reading, all proceeded to Mr. Green’s office. Rick introduced the subject by stating that he had brought Mrs. Peiffer down for the purpose of having a paper drawn, such as he and Mr. Green liad spoken about. Mr. Green then proceeded to explain to Mrs. Peiffer that the difference between a will and declaration of trust was that the latter would be a permanent act which she could not change. At the same time Rick produced Mrs. Peiffer’s will, which he had written for her several months before, or a copy of it, and Mr. Green understood Mrs. Peiffer to desire to execute such a trust as he had described, with a limitation of her estate on her death, to the same persons as she had named in her will. Mrs. Peiffer, who was an illiterate woman, depending on her brother to arrange her affairs according to her understanding of .his plans, while apparently assenting to Mr.'Green, [said little or nothing, and it is by no means certain that she understood him to be doing anything more than carrying out the arrangement which she supposed her brother had desired of him.] Throughout the whole of her conversation with Mr. Green, as described by him, [she nowhere appears of her own accord, or in her own words, to have expressed a wish for such a deed of trust as was prepared for her, or to have given any certain signs that she ever understood that she was doing anything further than she originally intended.] Mr. Green made some memoranda, and told the parties all to call again in the afternoon when he would have the paper ready. They returned in the afternoon, when Mr. Green read the paper over to them slowly and distinctly. [It is not likely that the formal reading over of the legal language of the instrument conveyed any further information of its contents to such a person as Mrs. Peiffer;] it does not appear at this time to have been any further explained to her. Mrs. Phillips testifies positively that Mrs. Peiffer signed the paper under the impression that it was nothing but a trust to supersede the Burkholder trusteeship. If she did understand that she was giving Rick the management of her property generally, considering her own and Mrs. Phillip’s positive testimony that she was informed by Rick and by Mr. Green that she could change it at any time, as showing her own impression, it is hardly possible that she supposed she was making an irrevocable disposition of her estate. There is no other evidence that she at any time intended to do so. After the reading was concluded, Mrs. Peiffer made her mark to the paper, .and a notary wa,s called in to take her acknowledgment. She paid Mr. Green for his services, and the party left with the paper, which was recorded the same day.</p> <p>Rick then took charge of Mrs. Peiffer’s property, and proceeded to collect her outstanding moneys by suit and otherwise. On one occasion Mrs. Peiffer and Mrs. Phillips were present at an arbitration in a suit brought by Rick as trustee. In the fall of 1878 Mrs. Phillips said to Richard Lechner, in Mrs. Peiffer's presence, that everything was placed in Rick’s hands, mentioning the word “ trustee,” and saying that they did not have much confidence in Burkholder and changed it to Rick. In April, 1881, with Mrs. Peiffer’s approval, Rick purchased a house out of the funds of the estate, and removed there. Mrs. Peiffer at the time stated to several neighbors that now she had her brother near to attend to her business. But shortly after this Mrs. Phillips became suspicious of Rick’s management of some of her affairs, and communicated her distrust to Mrs. Peiffer, who shared her dissatisfaction, employed Mr. Derr as her counsel, and on June 80, 1881, executed a revocation of the deed of trust, which she caused to be recorded, and then made demand on Rick for a redelivery of her estate, and on his refusal filed this bill.</p> <p>The master having stated that the two questions of law raised in the case were: First. Was the deed of trust a revocable instrument? and Second. If not, did the grantor sign it under such circumstances that she was entitled to revoke it? answered both of these questions in the affirmative, and reported a decree in accordance with the prayers of the bill.</p> <p>Exceptions filed to this report by the respondent were dismissed, and the report of the master confirmed by the court, Hagen man, P. J., whereupon the respondent took this appeal, assigning for error, inter alia, the action of the court in confirming (1) Those findings of fact by the master enclosed in brackets as above. (4) The finding of fact that $300 ór $400 might be inadequate to Mrs. Peiffer’s wants, and the trust, .therefore, improvident, and that, under the circumstances of the case it was the duty of the attorney who drew the trust to have inserted in it a power of revocation, and that in the absence of such power the grant or is entitled to relief; and (5) that the court erred in confirming the master’s report on the ground that the instrument was revocable under the ruling in Frederick’s Appeal, 2 P. F. S., 338.</p>

257. Assumpsit, by the Cooper Iron Mining Company, against William M. Kaufman and others, doing business as William M. Kaufman & Co. The plaintiff filed a narr. in the common counts, and a copy of book entries, claiming the sum „of $1,338.75, for 382.10 tons of iron ore, sold and delivered, at #3.50 per ton, with interest.

<p>Error to the Court of Common Ideas of Berks county: Of January Term, 1884, No. 31.</p> <p>This was an action of scire facias sur mortgage, by Abiram Ream, plaintiff, against Henry Bennethum, defendant, with notice to Henry Spiece, terre tenant, and Rebecca Rowe, tenant in possession. Rebecca Rowe alone made defence.</p> <p>On the trial, before Sassastax, J., title to the premises in question was admitted to have been in Andrew Davis on May 21, 1870. The plaintiff put in evidence a deed of that date from Andrew Davis and wife to Henry Bennethum, in fee simple, and the mortgage in suit given by Bennethum to the plaintiff, dated July 29, 1876, duly recorded.</p> <p>The defendant, Rebecca Rowe, made the following offers of evidence:</p> <p>That on May 12, 1870, she furnished Henry Bennethum $300, for the purpose of purchasing a lot of ground for her; that on the 20th of the same month he purchased, for $300, from Andrew Davis, the lot described in the mortgage in suit, and took the deed in bis own name ; that a house was erected thereon for her, and upon its • completion, in August, 1870, she took possession thereof and remained in possession, as owner of said premises, to the present time; that the plaintiff knew that she was in possession at the time said mortgage was given; and that the plaintiff and Henry Bennethum are related to each other and in close friendship — the foregoing being offered to show a resulting trust in favor of Rebecca Rowe, that the plaintiff knew of the existence of the same, or had notice thereof by not making inquiry as to the rights of the occupier.</p> <p>Offers objected to, as vague and irrelevant. Objection sustained; exception.</p> <p>The court instructed the jury that there being no evidence that the plaintiff had any knowledge of the equity set up bjr Mrs. Rowe, he, as a bona fide mortgagee from the holder of the recorded title, was hot affected by the secret trust, and that their verdict, therefore, should be for the plaintiff.</p> <p>Verdict accordingly for the plaintiff, and judgment thereon. The defendant took this writ of error, assigning for error the rejection of her offers of evidence, and the direction of the court to the jury.</p>

246. This case originated, in the court below, by a petition filed June 18, 1881, by “Hiram S. Getz, and James K. Getz and Hiram S. Getz, doing business under the firm name of H. S. Getz & Co., lessees of Hiram S. Getz,” for the appointment of seven persons to assess damages to Hiram S. Getz, owner, and to' the firm of Hiram S. Getz & Co., lessees* for certain land taken and injured bjr the Philadelphia and Reading Railroad Company, in the city of Reading.

79. This case arose upon the petition of Jacob Swank for the appointment of viewers to assess the damages for land taken by the North and West Branch Railway Company in the construction of their road.

Ejectment, by John A. Jackson and wife, George D. Heron and wife, Charles J. Tower, and Robert M. Cummings against Eli Stoetzel, to recover possession of a tract of land in Conyngham township, described in the writ as containing three hundred eighty-six acres and sixteen perches.

286. This was an action of assumpsit by Adam Bard, Henry-Brown, and the executors of Peter Miller, deceased, against Patrick O’Reilly, surviving partner of H. F. Felix & Co., George Whitaker, Joshua Keely and Patrick O’Reilly. The said Patrick O’Reilly died after verdict and before judgment, and by writ of scire facias Catharine C. O’Reilly et al., his executors, were substituted of record in his place.

299. Ejectment, brought May 22, 1882, by Baltzer Gehr against David Sitler (tenant), Samuel II. Rothermel et al., heirs of Maria Rothermel, deceased, and George F. Miller and Amanda, his wife, in her right, et al., devisees of Hannah Nicely, deceased; to recover an undivided one third part of a messuage and tract of land, containing 281 acres, situate in Maxatawny township, Berks countv. Plea, not guilty.

268. This was an action on the case by William Sell against Reuben Transue to recover nominal damages for the obstruction by the defendant of an alley which the plaintiff claimed was appurtenant to his lots in South Bethlehem. Plea, not guilty.

350. This was, in the court below, a certiorari to a justice of the peace, bringing up the record in a proceeding by attachment, before the said justice, under Sec. 27 of the Act of July 12, 1842, relating to fraudulent debtors; wherein Cyrus Jacoby ivas plaintiff and Edward Shafer defendant. The plaintiff’s claim was for ®125 for goods sold and delivered, and was evidenced by a promissory note.

370. Appeal of the Susquehanna Mutual Fire Insurance Company, from a.decree of said court distributing a certain fund paid into court by said company. This fund was the amount of a judgment against the company, recovered by one Jqhu.

349. This was a feigned issue under the Sheriff’s Interpleader Act, wherein Mahlon Smith, Mahlon H. Kline and Washington I. Sellers, trading as Smith, Kline & Co., were plaintiffs, and M. L. Yost was defendant, to determine the ownership of certain chattels, which had been levied on by the sheriff on three successive writs of fi. fa., as the property of one. John Shoffner, and sold by the sheriff, on the first two writs, to the plaintiffs, and on the third to the defendant.