Volume 106 — Pennsylvania State Reports

Appeal front the Orphans’ Court of Northampton county: Of January Term, 1884, No. 361. Appeal of David H. Ackerman, from a decree of the Orphans’ Court of Northampton county, making distribution of the proceeds of certain real estate of William F. Moser, deceased, sold by the administratrix of his estate for the payment of debts.

147. Assumpsit, by Sarah Oyer, executrix of John J. Oyer, deceased, against William Ott, upon a promissory note given by the defendant to John J. Oyer.

190. This was an action of covenant by L. R. Weiss, Joseph Weiss, and Iliram Weiss, trading as Weiss Brothers, against the Universal Mutual Fire Insurance Company, to recover the sum of $1,000, with interest thereon, being the amount of a policy of fire insurance issued by the defendant to the plaintiffs on the machinery of the latter’s mill for three years from October 1, 1877. The mill, with the machinery therein, was destroyed by fire July 25, 1878.

368. This was an action of covenant by Tilghman Kepler against the Lebanon Mutual Fire Insurance Company to recover the amount of a policy of insurance issued by the defendant to the plaintiff on the stock of grain, etc., in the latter’s mill.

238. Assumpsit, by the First National Bank of Easton, 'Pa., against Uranus Wirebach, executor of Jacob C. Wirebach, deceased, upon a promissory note indorsed by the decedent. .Plea, non-assumpsit. Upon the trial, before Meyers, P. J., the following facts appeared: The note in suit, which was for $10,075.92, and dated December 7, 1876, was drawn by Richards & Christman to the order of J. C. Wirebach, and by him endorsed.

Of January Term, 1884, No. 46. This was an appeal by Benjamin Shafer and Joseph B. Shafer, administrators of Joseph Shafer, deceased, from a decree of said court sustaining exceptions to the report of an auditor, appointed to audit the account of said administrators and make distribution of the fund in their hands. • By deed, dated February 9, 1866, Joseph Shafer, the deceased, being then seised of a tract of land, on which there was a slate quarry, conveyed an undivided…

Writs of error to the Court of Common Pleas of Sullivan County: Of July Term, 1883, Nos. 164, 165, and 166. Feigned issues to try the validity of three judgments held by Edward Lyon to the use of the First National Bank of Muncy, against Griffith Phillips; which were opened by the court and the defendant let into a defence.

366. ■ This was an appeal by the First National Bank of Muncy from a decree of said court opening a judgment entered therein, in favor of Edward Lyon agaist Griffith Phillips. On February 17, 1869, Phillips gave Lyon his judgment note for $800, and on February 19, 1869, the prothonotary entered judgment thereon to No. 63 February Term, 1869.

Of January Term, 1883, No. 341. Bill in equity, filed February 3, 1881, between John Henry Dampf and Fanny P. Dampf his wife in the right of said wife, complainants; and Horace Pomeroy, Samuel W. Pomeroy, Frederick E. Smith and William Smith, surviving partners of Daniel F. Pomeroy deceased; and Eleazer Pomeroy surviving administrator of said decedent; and Henrietta B. Pomeroy, widow of said decedent and guardian of Daniel F. Pomeroy Jr. his infant son, — praying for an…

Appeals from the Court of Common Pleas of Bradford county: Of January Term, 1884, Nos. 142 and 143. Appeals by W. L. Ross & Go. and J. Leman Elsbree, from a decree of said court confirming tbe report of an Auditor appointed to make distribution of a fund, derived from .the sheriff’s sale of certain real estate, under executions issued by the said appellants.

291. Feigned issue under the Sheriff’s Interpleader Act, in which R. T. Handrick was plaintiff, and Edward S. Ziegler & Co. and thirteen other firms were defendants, to determine the ownership of certain personal property levied on as belonging to one E. S. Handrick. The following are the material facts: For several years prior to September 2-, 1882, E. S. Handrick kept a store in the borough of Tunkhannock.

<p>Error to the Court of Common Pleas of Bradford county: Of January Term, 1883, No. 190.</p> <p>This was an action on the case, by Alice Simmers against Victor E. Piollet and Joseph E. Piollet, to recover damages for injuries alleged to have been caused by the negligence of the defendants.</p> <p>On the trial, before Morrow, P. J., the following facts appeared: The defendants are the owners of a large tract of real estate situated in Wysox, Bradford county, Pa. There are several roads running through their lands along which they had constructed post and board fences, which for over twenty years they had been accustomed to whitewash. In the spring of 188Í they had erected a new fence along one of these roads, on both sides of which they owned the land, and in the months of June and July of that year were engaged in whitewashing the same. The whitewash, a preparation of lime and salt mixed in boiling water, was prepared in a heater in the hog-pen of the defendants, a distance from the nearest point of the fence to-be whitewashed of 130 rods. To get the whitewash to the fence for use a keg or barrel, two feet three inches high and fifteen inches in diameter, was placed upon a small four-wheeled wagon, the wheels of which were twelve inches and fourteen inches in diameter. The length of the wagon was three feet, and breadth two and a half feet. In the keg was a shovel, the handle extending above the keg a distance differently stated by the witnesses from a few inches to two or three feet. The outside of the keg was streaked with lime, and it was covered with a piece of canvas or dark carpet. The wagon, thus rigged, was taken to the hog-pen, the keg filled with the prepared whitewash and then drawn to the place of use, and placed by the side of the fence in the road convenient, of access, and as the work progressed was drawn along the fence.</p> <p>On the afternoon of Saturday, July 9, 1881, this barrel or keg had been filled and taken to a point in this fence 275 rods from the hog-pen where the whitewash was prepared. At the close of the day it was still half full, and as the workman intended to resume work on Monday morning, he covered up the keg, and left it standing in a ditch at the side of the road. At this place the road is 45^ feet wide. On the side next the fence being whitewashed there is a footpath from four to five feet wide, elevated above the road a foot or more. Next is a ditch about four feet wide, and from four to five inches below tlie travelled track. Then comes twenty-two to twenty-four feet of level smooth roadway, while the 13-J- feet remaining slope gradually downwards 2feet to the fence on the other side, a little steeper near the road than for the remainder of the distance. The surface of the road and slope is composed of small gravel. There are no banks or dangerous places on this road at this point, or above or below it.</p> <p>On Sunday, July 10, Henry Waters and the plaintiff left Towanda at 4 r. M. for a pleasure drive. After driving about fourteen miles they came, about 8 p. M., to the point in the road above described, where the plaintiff alleges the horse, becoming frightened at the defendants’ truck and lime keg, became unmanageable, reared up, plunged sideways and a little ahead, fell down and died instantly. The wagon was overturned, and the plaintiff thrown under it with its weight upon her, thereby causing the injuries for which this action was brought.</p> <p>The plaintiff offered to prove, by several witnesses, that the obstacle above described tended to frighten horses. Objected to by defendant because the question did not embrace the words ordinarily well-broken and road-worthy horses. Objection overruled. Exception. (First and third assignments of error.)</p> <p>The plaintiff also offered to prove other cases in which horses had been frightened at the same object in the same position. Objected to by defendant. Objection overruled. Exception. (Second assignment of error.)</p> <p>The defendants called J. G. Dougherty as a witness, who testified that he had had experience with horses for over twenty years, had owned quite a number, owned five at the time he was examined, had seen this horse shortly before his death the same afternoon, and had observed and described his condition, and had seen him immediately after his death. Defendants then asked him: “In your opinion, of what did that horse die?” Objected to by plaintiff. Objection sustained. Exception. (Fourth assignment of error.)</p> <p>Defendants then asked the same witness the following question : “In your opinion, was that tub calculated, placed upon the road as it was, to frighten an ordinarily well-broken road-worthy horse, or an ordinarily quiet and well-broken horse?” Objected to by plaintiff because it is not sufficient that the obstacle might not have frightened an ordinarily well-broken horse; but that the plaintiff has the right to the highway in such a condition that’ even skittish animals may be employed without risk. Objection sustained.' Exception. (Fifth and sixth assignments of error.)</p> <p>Robert Ferguson, another witness for defendants, testified that he had been a blacksmith for over fifty years, had “ always handled horses more or less since he was big enough,” and had seen horses frightened in various ways. He also testified that he had seen horses fall and thrown to the ground frequently. Defendants then proposed to ask witness the question whether the fall of this horse on its side straight out at full length could have killed it upon this piece of ground. Objected to by plaintiff as incompetent. Objection sustained. Exception. (Seventh assignment of error.)</p> <p>Defendants then asked the 'same witness this question: “ State to us j-our opinion whether a horse could be frightened to death at this object that was in the road.” Objected to by plaintiff. Objection sustained. Exception. (Eighth assignment of error.)</p> <p>The defendants also offered testimony to the effect that the horses that had been frightened by this obstacle were skittish horses. Objected to by plaintiff. Objection sustained. Exception. (Ninth assignment of error.)</p> <p>The plaintiff presented, inter alia, the following points:</p> <p>8. That in making such use of the highway the defendants were bound to a due regard to the rights of public travel and to the temper and disposition of horses used by the public. They had no right to leave any such object in the road as would frighten horses, and in this respect they were bound not only to leave the highway safe for dull, sluggish and gentle animals, but for spirited, timid and nervous animals as well.</p> <p>Answer. This is true, as a general proposition. Rut we qualify it with the remark that where a horse is disposed to shy, and the driver of the horse is aware of the defect, he is obliged to use greater care than in driving a horse that did not have such a vice or defect; and in this case you must find that the driver exercised such care, or the plaintiff cannot recover. (Fourteenth assignment of error.)</p> <p>4. That if the jury believe the object complained of in this ease, to wit, the whitewash barrel in the small cart or wagon spoken of by the witnesses, was an object likely to frighten horses and render public travel unsafe, it was negligence on the part of the defendants to leave it in the highway, and they are liable for any injury resulting from such negligence.</p> <p>Answer. Affirmed. (Fifteenth assignment of error.)</p> <p>5. If the jury believe the defendants were negligent in leaving the object in the road, and that in consequence of such negligence the horse behind which the plaintiff was riding was frightened, whereby the plaintiff sustained the injuries complained of, she is entitled to recover damages for such injuries.</p> <p>Answer. This is affirmed, with the further remark that the jury must find that the object was such as was well calculated to frighten the horse, and that, by reason of such fright, the plaintiff sustained the injuries complained of. (Sixteenth assignment of error.)</p> <p>The defendant presented, inter alia, the following points:</p> <p>1. That the plaintiff cannot recover because she was unlawfully upon the public road.</p> <p>Answer. Denied. (Twenty-third assignment of error.)</p> <p>2. That for the purposes of building fences along the line of the public highways through the country, the farmers owning the lands through which such highways run have the lawful right to place stones, boards, posts, paint, lime, or other materials used within the limits of the highway and keep such materials there, for such time as is reasonable for the erection and completion of such fences, provided such materials are left in the most convenient manner, and a free and easy passage is left by it, for all business and travelling purposes.</p> <p>Answer. This is a correct statement of the law, and, so far as it is applicable to this case, it is affirmed. But we will say that they would be answerable for injuries arising from an unreasonable or negligent use of these things upon the highway, in case injuries were received by any person. (Seventeenth assignment of error.)</p> <p>3. That if the defendants were continuously engaged in whitewashing their fences from day to day, and used such means of getting their whitewash to the place of use, so the same would be easy of access and handy, as ordinarily careful and prudent men engaged in the same0 or similar business would, use, then the plaintiff cannot recover, although the whitewash tub was an obstacle in the highway, but not obstructing or hindering the travel thereon.</p> <p>Answer. Affirmed, provided you find the obstacle was suck as was not calculated to frighten horses. (Eighteenth assignment of error.)</p> <p>4. If the defendants' were engaged in whitewashing their fence on Saturday prior to the Sunday of the happening of the alleged injury, and at the close of Saturday there was whitewash in the tub for further use, and the defendants were intending to resume the work on Monday following, they had the lawful right to leave the tub within the limits of the highway during Sunday, provided it did not obstruct and binder travelling upon the same.</p> <p>Answer. This is affirmed by adding to the end of the point —“ Provided it was not such an object as was calculated to frighten horses.” (Nineteenth assignment of error.)</p> <p>5. The general rule is: “A person is answerable in damages for the consequences of his fault, so far as they are natural and proximate, and therefore may have been foreseen by ordinary forecast. That by the laws of organized society, everybody must bear their misfortunes or accidents, and the results of actions and faults, when such results reach in their consequences'beyond what may be foreseen by ordinary forecast. That 'by the laws of organized society the defendants are compelled to build fences along the line of highways running through their'lands, and if in building such fences, by lawful means, and in a lawful manner such as ordinarily careful and prudent men would use in doing the same or similar work, and an injury is caused thereby, it must be ascribed to accident, one of the results of organized society which every person must bear for himself or herself, and the plaintiff cannot recover.”</p> <p>Answer. So far as this point is applicable to this case, it is denied. (Twentieth assignment of error.)</p> <p>6. -That if the lime tub in the highway, as shown in this case, is such means or method for taking the whitewash to the place it was to be used, as ordinarily careful and prudent men, doing the same or similar work, would have been likely to have used, then the frightening, falling and death of the horse and the consequent injury arising therefrom must be ascribed to accident, and the plaintiff cannot recover.</p> <p>Answer. Refused. The question is — was it negligence on the part of the defendants to leave the lime tub and wagon in the highway? If it was negligence the plaintiff can recover. (Twenty-first assignment of error.)</p> <p>7. That if the horse behind which the plaintiff was riding at the time of receiving the alleged injury was skittish and in the habit of shying at objects in the highway, and was not quiet and well broken, then the plaintiff cannot recover.'</p> <p>Answer. Refused. But if the horse w-as skittish and the driver knew of it, he was bound to exercise such care as was necessary under the circumstances. If he did not exercise such care, then the want of it so as to amount to contributory negligence, is matter of defence, and is upon the defence to show. (Twenty-second, assignment of error.)</p> <p>The court charged the jury, inter alia, as follows:—</p> <p>“ These defendants own the land on both sides of the road, as I understand, and as owners they had the right to whitewash their fences; they had the right to do whatever was necessary in or about their fences, and they had the right to use it to any extent they pleased, and to do what they pleased, to use that lime tub and wagon and leave it as they did, provided that in so using it they did not endanger the rights of others. They had the right and dominion over the land on both sides of the road, and in the road, subject however to the right of the public to travel as they might wish. Their rights, therefore, were relative. They had the dominion over the land, and the public had the right to pass and repass as they pleased; the road extended from fence to fence. Whatever was fenced out was public highway, and was dedicated to public use, and the public had the right to travel in any part of it they saw fit. (Tenth assignment of error.)</p> <p>“ The defendants had the right to use any part of this highway passing through their land, for the purpose of improving and building their fences or whitewashing them, provided they did not interfere with the rights of the public, the rights of travellers to pass and repass, so as to render it unsafe for them to pass and repass with their animals or otherwise. If you find that this lime tub and wagon, covered as it was, and left on the road as it was, from point to point, and left standing at any particular point for days, was calculated to frighten horses, then it was negligence on their part, because you and every other citizen had the right to pass there, without having your horses frightened by any obstruction placed on the highway. (Eleventh assignment of error.)</p> <p>“ The defendants had a complete right to take it and use it as they did, provided it was not such an obstruction or such an obstacle or object that it had the tendency and was calculated to frighten horses.. If it had such a tendency, and remained in any one place, or even if it did not remain in any one place so very long, but only for a few days or a day or two — if it was calculated to frighten horses on account of its position near the track, or on account of the covering that was on it, or taking it altogether, if it was calculated to frighten horses, then we think it was negligence to use it, and the plaintiff would be entitled to recover. (Twelfth assignment of error.)</p> <p>“ The plaintiff had a right to travel in any part of the road coming home. They had a right to drive on that side of the road, or in the middle of the road, or on the side of the road where this obstruction was ; they had a right to pass over any part of the public road ; whether they endangered themselves by travelling near that side is a matter for the jury to determine under all the circumstances; they had a right to be there.” (Thirteenth assignment of error.)</p> <p>Verdict for the plaintiff for $1,868, and judgment thereon. Whereupon the defendants took this writ, assigning for error, inter alia, the admission of plaintiff’s offers of evidence, and the refusal of defendants’ offers, the answers to plaintiff’s and defendants’ points, and the portions of the charge of the court above quoted.</p>

364. This was an action of scire facias sur mortgage, by G. H. VanDyke against Charles Wells and Amelia Wells his wife. On July 3, 1873 Charles Wells and Amelia his wife executed to the plaintiff a bond for §4,857.26, and a mortgage of the wife's real estate to secure the same. On April 12,1874, Van-Dyke entered judgment on said bond against both defendants and under an execution thereon purchased the mortgaged premises at sheriff’s sale for $4,000.

<p>1. A husband may make a gift to his wife of money, chattels or securities by delivery of possession thereof, accompanied by language which indicates an intention to part not only with his possession, but also with his properly in the subject of the gift.</p> <p>2. A., in contemplation of leaving home, purchased an accident insurance ticket, and laid it on a table in front of his wife, saying to her, that “ she should take it, and take care of it, and if he got killed before he got back, she would be $3000 (the amount of the policy) better off.”</p> <p>Held, That these facts were insufficient to establish a gift of the ticket to A.’s wife, as against creditors of his estate; that in order to ' establish such a gift, it was necessary to prove that A. intended to part with both the possession of and property in the ticket.</p>

<p>Error to the Court of Common Picas of Wyoming county: Of January Term, 1884, No. 138.</p> <p>Judgment was entered by John C. Herman, administrator of George Sinker, deceased, against John W. Sinker and Abraham Sinker, Senior, on a judgment note of which the following is a copy:</p> <p>$1,000. Wyoming, Pa., July 1,1867.</p> <p>Five years after date for value received I promise to pay George Sinker or order the sum of one thousand dollars and-cents with interest without stay of execution. And I, 7^Sy por cent, interest, hereby confess judgment for said sum with interest and cost of entry. And I also hereby waive the rights of inquisition, and all exemption laws of this Commonwealth.</p> <p>John W. Sinker.</p> <p>Abraham Sinker, Sen.</p> <p>James W. Sinker.</p> <p>[Indorsed], June 4, 1873. Received on the within note five dollars.</p> <p>Received on the within fifty dollars. June 29, 1877.</p> <p>Abraham Rinker.</p> <p>Judgment was entered up August 15, 1881, on this note against John W. Rinker and Abraham Rinker, Senior, James W. Rinker having previously died. The plaintiff omitted to comply with a rule of court, which provided that if the warrant be above ten and under twenty years old the court must be moved for leave to enter judgment, and an affidavit accompany the motion, to the effect that the warrant was duly executed, the money is unpaid, and the parties are living.</p> <p>A motion was' subsequently made, upon application of Abraham Rinker, Senior, to strike off the judgment, which was refused. The court, however, opened the judgment as to both the defendants for the purpose of letting in the plea of the statute of limitations. (First and second assignments of error.)</p> <p>The issue was made up at bar, the note to stand for the declaration, and defendant to plead the statute of limitations.</p> <p>Upon the trial, before Ingham, P. J., plaintiff offered the note and docket entries in the case. This offer the court rejected, as being barred by the statute of limitations. (Fourth assignment of error.)</p> <p>Plaintiff then renewed the offer, accompanying it with an offer to show a payment of $50 made by Abraham Rinker within six years, as indorsed on the note and attested by his signature. This offer was rejected on the ground that there being a joint issue as to two defendants, evidence which would toll the statute as to one only -was inadmissible. (Fifth assignment of error.)</p> <p>Plaintiff then moved to amend his declaration so as to declare against Abraham Rinker alone. This motion was disallowed, and the court instructed the jury to find a verdict for defendants. (Sixth and seventh assignments of error.)</p> <p>Verdict, accordingly, for the defendants, and judgment thereon.</p> <p>Plaintiff thereupon took this writ of error, assigning for error the action of the court below iu opening the judgment, in overruling his offers of evidence, in refusing the motion to amend his declaration as above set forth, and in directing a verdict for the defendants.</p>

<p>1. A corporation engaged in the manufacture and sale of goods is charged with the same responsibility to purchasers as are natural persons under similar circumstances; it is therefore answerable for the fraudulent representations of its agent, made within the ostensible scope of his authority while transacting the business of the corporation.</p> <p>2. To warrant a recovery in an action of deceit for fraudulent tions, the defendant or his agent must have been guilty of some moral wrong. Legal fraud, unaccompanied with moral fraud, will not support the action.</p> <p>3. I11 such case, to prove fraud it is not necessary to show that the person making the fraudulent representations knew them to be false; it is sufficient to prove that he did not know them to be true, or if believing them to be true, that he made them without reasonable grounds for such belief. The fraudulent purpose is essential.</p> <p>4. The knowledge of an untruth, or the want of reasonable grounds for believing such representations to be true, will not be inferred solely from the fact that such representations were untrue, and an action of deceit for false representations cannot be maintained upon such representations as are believed by the maker, upon adequate information and reasonable grounds, to be true.</p> <p>5. A manufacturer or seller of goods for a particular purpose is liable in an action in the nature of deceit, if the goods prove unfit for such purpose, even though there be shown no fraudulent intent and no scienter be proved. Such recovery is sustained on the ground of an implied warranty and not on the ground of fraud.</p> <p>6. Where, however, the gist of the action is not the implied warranty but the tort or fraud 'of the manufacturer or seller in falsely representing the goods to be fit for a specified purpose, the manufacturer or seller will not he liable, if such representations were made in good faith and upon reasonable grounds for the belief in their truth. In such case a scienter must be averred and proved and a moral fraud shown.</p> <p>7. Where a person, without sufficient knowledge, assumes to he an export, he will be liable as for deceit or false warranty, if he make any false representations in matters pertaining to his art, even though he believed such representations to be true. If, however, he made such representations as the agent of another, in order to make the principal liable in an action of deceit on the ground that the agent assumed to be an expert, there must be proof that the principal participated in the wrongful act. The more relation of principal and agent will not justify the inference that the agent is authorized to profess to he an expert and competent as such to make representations.</p> <p>8. Whether, if an expert has in fact skill and adequate knowledge of the subject of which ho speaks, and makes representations in matters pertaining to his art which he believes to be true, though untrue, to a party who relies on them, he would be liable in deceit for false representations, — not decided.</p> <p>9. In an action of case to recover damages for the partial destruction of a mill, the rental value of such mill during the time that it was necessarily idle while being repaired, should be included in estimating such damages. Altter, if the mill were wholly destroyed.</p> <p>10. Where files of letters are offered in evidence, and their exclusion is assigned as error, the Supreme Court will not consider Hie assignment unless such letters, or such material portions thereof as are necessary to show their pertinency to the cause at issue, are printed in the paper hooks.</p> <p>11. Where a court gives proper instructions to the jury, hut reserves the question whether such instructions are correct, and the jury render a verdict in accordance with sucli instructions for the plaintiff, and judgment is entered on the verdict, and not non obstante veredicto, the fact that the points were defectively reserved, is immaterial and will not constitute ground for reversal.</p> <p>12. An indefinite and defective verdict held to he cured by the Act of March 14, 1872, P. L., 25.</p>

<p>Appeal of The Fidelity Insurance Trust and Safe Deposit Company from a decree of the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term, 1884, No. 26.</p> <p>Appeal of Charles Lennig, John L. Erringer and James B. Ramsey, from the same decree: Of January Term, 1884, No. 26½.</p> <p>This was a hill in equity by Charles Lennig, John L. Erringer, James B. Ramsey and George W. Hall, complainants, against The Fidelity Insurance, Trust and Safe Deposit Company, and Stephen A. Caldwell, defendants, to compel the defendants to account to the complainants for the proceeds realized from the sale of certain bonds of the Delaware River Railroad Company, which wore issued to the said The Fidelity Insurance, Trust and Safe Deposit Company after a foreclosure of a mortgage upon the Delaware Shore Railroad Company, and a re-organization by the purchasers under the name of the Delaware River Railroad Company. After answer filed the cause was referred to Mayer Sulzberger, Esq., as examiner, and afterwards to him as master, from whose report the facts appeared to be as follows:</p> <p>Thomas L. Ogden was the builder of the railroad and principal owner of the stock of the Delaware Shore Railroad Company. The road extended from the West Jersey Railroad to the Delaware river a few miles below Woodbury. To raise money for its construction Mr. Ogden had raised money upon his own notes and given as collateral security the mortgage bonds of the railroad company. The plaintiffs Lennig, Erringer and Ramsey, each held 84,000 of these notes, and each were secured by 88,000 of bonds. The plaintiff Hall held notes to the amount of 84,500, and bonds to the amount of 826,000. The Fidelity Company held notes to the amount of $26,750, and bonds to the amount of 881,000.</p> <p>The railroad proved to be an unprofitable enterprise, and in the spring of 1879 foreclosure proceedings were begun upon tlie mortgage, and at the first sale a bid of 8100,000 was received but not accepted, and the property withdrawn.</p> <p>Ogden then sought to arrange a settlement with his creditors, the principal ones being the plaintiffs and the defendants herein, his negotiations being carried on through one James W. Boyd, the broker who had sold the plaintiffs their notes. The road was again advertised to be sold on July 26, 1879, and meanwhile the negotiation had culminated in an agrees* ment which was prepared under the supervision of Caldwell, and was signed by Messrs.' Lennig, Erringer and Ramsey, as follows:</p> <p>Philadelphia, July 25,1879.</p> <p>We the undersigned, holders of the notes of Thomas L. Ogden with bonds of the Delaware Shore Railroad Company as collateral, and which said railroad and franchises are about to be sold under proceedings had upon the mortgage made by the said Delaware Shore Railroad Company to secure the payment of the principal and interest of the said bonds, do hereby agree that in case of the purchase of the said railroad company, its rights and franchises, for our and each of our interests as holders of the said bonds as collateral security, we nor shall either or any of us claim our proportion of the cash that would be coming to us from the proceeds of said sale when made; and do further agree that in lieu thereof we will accept and take such first mortgage bonds as may be issued in a re-organization of said company, in the same ratio that the present bonds held by us respectively bear to the principal of said above-mentioned mortgage, and which said new bonds so issued in a re-organization as aforesaid are to be held by us as collateral security for the notes of said Thomas L. Ogden held by us.</p> <p>Tjr., , . . Witness at signing:</p> <p>James W. Boyd.</p> <p>Charles Lennig,</p> <p>J. L. Erringer,</p> <p>James B. Ramsey.</p> <p>The plaintiff Hall was absent from the city when this agreement was made, but he assented to it, was represented at its execution by Boyd, who as Hall’s agent verbally agreed to it for him, and the master found as a fact that Hall was a party thereto.</p> <p>On the day after the agreement was signed, to wit, on July 26, 1879, the railroad and its franchises were sold under the foreclosure proceedings. Ogden became the purchaser, and a day or two afterwards he transferred his bid to Stephen A. Caldwell (acting for the defendant corporation), who took title thereto. None of the plaintiffs was present at the sale, and they testify that the reason of their absence was their reliance upon the Fidelity Insurance, Trust and Safe Deposit Company to protect their interests according to the provisions of the agreement.</p> <p>Mr. Ramsey, one of the plaintiffs, testified, that before the sale he received a notice thereof, and that he went to the office of the Fidelity Insurance, Trust and Safe Deposit Company ; that he saw Mr. Caldwell; that he held the notice before Mr. Caldwell, who was sitting at his desk, and asked Mr. Caldwell whether it was essential that he, Ramsey, should attend the sale; that Mr. Caldwell’s reply was, “ no, I think not, we have the matter in hand, we are giving it attention.” Mr. Caldwell, himself, being interrogated upon this matter, testified, that it was quite possible that he had seen Mr. Ramsey before the sale, but bad no distinct recollection of the fact.</p> <p>The corporation defendant was represented at the sale by Wilkinson, an employee, who was instructed to bid as high as $30,000, and who stopped bidding at that figure. Other bidders, however, went on, and the property was sold to Ogden for $85,500.</p> <p>In order to raise money to complete his purchase, Ogden within a few days made an application to the Fidelity Company for a loan, which, after some negotiation, was granted upon condition that Ogden should pledge the property purchased as security for the new advances as well as his old indebtedness, and it appears that Mr. Caldwell also stipulated that the other Ogden note-holders should be permitted, if they so desired, to join with the Fidelity Company in the arrangement upon the same terms as themselves.</p> <p>The sum of $10,001.40 in cash was needed to pay off the liens prior to the mortgage and expenses of the foreclosure, and also $10,958.60 for dividends due bondholders other than the plaintiffs and the corporation defendant. An additional sum of $10,000 was estimated to be necessary for repairs and improvements, making the total amount needed $30,960. The proposition was accordingly made to the plaintiffs to contribute ratably to this fund, either on the basis of their whole claims or upon the basis of their claims less their dividends from the proceeds of sale. A schedule was prepared and submitted to them, but they refused to contribute as requested. Meantime on August 9, 1879, the defendant Caldwell took title to the railroad, and on October 31, 1879, conveyed it and its franchises to a new company organized under the name of The Delaware River Railroad Company. On November 1, 1879, the new company issued bonds secured by a mortgage of the road, franchises, &e., for $65,000, which bonds were delivered to the corporation defendant to secure the purchase money advanced, the amount expended for improvements, and the former indebtedness of Ogden. Ogden died soon afterwards, and the road was operated by his executor, who succeeded him as President, but it never earned enough to pay the interest on the money advanced. Early in 1881 the corporation defendant sold its claim against Ogden, together with the bonds held as collateral, to Messrs. Dupont for $61,750.</p> <p>Upon the question of the liability of the defendants to account to the plaintiffs, the Master reported inter alia as follows : “ If we assume for a moment that Ogden’s bid had been allowed to stand, and that the Fidelity Insurance, Trust and Safe Deposit Company had not negotiated with him, the conclusion is inevitable that the terms of the sale could not have been complied with, and that a re-sale would have been ordered of which the plaintiffs would have had notice, and at which they could have protected their interests by bidding. It seems to the Master that the defendants could not thus take away any rights of the plaintiffs. To hold under these circumstances that the adoption of Ogden’s bid by the defen-0 dants was a purchase totally disconnected from the agreement, and free from any of its obligations or trusts, would be to encourage quibbles and technical devices, to fritter away solemn compacts. The Master, therefore, finds that the purchase by the defendants of the railroad, franchises, and property of the Delaware Shore Railroad Company was a purchase under the terms and within the meaning of the agreement of July 25th, 1879.</p> <p>“ This leaves for consideration only one question, viz.: whether the plaintiffs’ refusal to contribute ratably for the payment of the outlays, as demanded by the defendants, constituted a waiver or forfeiture of the plaintiffs’ rights under the agreement. The plaintiffs earnestly denjr that they were liable to contribute anything. They point to the agreement, and find in it only one duty imposed on them, viz., that they shall not claim their cash dividends out of the proceeds of the foreclosure sale. A performance of this duty entitles them, according to their contention, to receive first mortgage bonds of the reorganized company, in the same ratio that their bonds, held as collaterals, bore to the whole amount of the foreclosed mortgage......</p> <p>“ The Master finds that at the time of entering into the agreement of July 25th, 1879, neither the plaintiffs nor the defendants contemplated or hoped for any advantage beyond the payment of their claims. It would seem to follow, therefore, that the plaintiffs and the defendants stood on an equal footing. If money was required to carry out the provisions of the agreement there was no valid reason why the plaintiffs should not ratably contribute. If they expected to share in the profits of the bargain, they were equally bound to bear their part of its burdens.</p> <p>“ If the case turned upon this simple question, it would doubtless be necessary to dismiss the bill. There were, however, other circumstances to complicate the matter. After the purchase by the defendants, they dealt with the property as their own, without the leave, assistance, or advice of the plaintiffs, or any of them. They did more. They gave away, as a gratuity to Ogden, an integral part of the property purchased for the joint benefit of the plaintiffs and defendants, to wit: that part of the value of the road represented by the shares of stock issued by the re-organized railroad company, being all over $65,000, the amount of the mortgage bonds issued by the company. If, for the sake of tlie argument, we assume that this conduct was a fair compliance with the terms of the agreement, it is still difficult to see how the defendants could he entitled arbitrarily, and against the wishes of the plaintiffs, to spend $10,000 for improvements, and then to demand a contribution including such expenditure on pain of a forfeiture of the plaintiffs’ rights under the agreement. The very foundation of the plaintiffs’ duty to contribute was the fact of their being jointly interested with the defendant, and the least right conferred by such joint interest was to be consulted as to the propriety of spending money in improvements.</p> <p>“ The Master is therefore of opinion that the refusal of tlie plaintiffs to contribute the amounts demanded by the defendant, under the circumstances attending such demand, was not a waiver of their rights, and they are entitled to relief.”</p> <p>The Master accordingly stated their account as follows:</p> <p>Net proceeds of sale of bonds.................$61,750 00</p> <p>Amount advanced by the Fidelity Insurance, Trust and Safe Deposit Company, expenses and liens.........................$10,001 40</p> <p>Dividends to other stockholders....... 10,958 60</p> <p>llepairs and improvements............ 10,000 00</p> <p>Interest on advances................. 3,196 32</p> <p>34,156 32</p> <p>Leaving net balance for distribution...........$27,593 68 which amount he distributed ratably among the plaintiffs and the defendant company. He further reported that tlie bill should be dismissed as to Caldwell.</p> <p>To this report The Fidelity Insurance Trust and Safe Deposit Company filed inter alia the following exceptions :</p> <p>2. The learned Master, having stated that at the sale of July 26tli, 1879, Thomas L. Ogden became the purchaser of the railroad and franchises of the Delaware Shore Railroad Company, erred in reporting that the said Ogden “ a day or two afterwards transferred his bid to Stephen A. Caldwell, acting for the defendant corporation, who took title thereto ” without also reporting the terms upon which such transfer was made to Mr. Caldwell, the evidence being uncontradicted that such transfer was made only as collateral security, the title to the property remaining in Thomas L. Ogden.</p> <p>8. The learned Master erred in reporting that the purchase by the defendants of the railroad, franchises, and property of the Delaware Shore Railroad Company was a purchase under the terms and within the meaning of the agreement of July 25th, 1879.</p> <p>11. The learned Mastér erred in reporting that the refusal of the plaintiffs to contribute the amounts demanded by the defendants, and the circumstances attending such demand, was not a waiver of the plaintiffs’ right, and that the plaintiffs are entitled to relief.</p> <p>The complainants also filed numerous exceptions inter alia as follows:</p> <p>1. The learned Master erred in reporting “ that the Fidelity Insurance Trust and Safe Deposit Company is entitled to a credit for the amount of the advances for improvements.”</p> <p>2. The learned Master erred in not finding and reporting that under the agreement of July 25, 1879, the complainants were not bound to contribute toward the payment of any advances made by the defendants after the purchase of the said road by the defendants.</p> <p>3. The learned Master erred in reporting that “if money were required to carry out the provisions of the agreement, there was no valid reason why the plaintiffs should not ratably contribute.” ,v</p> <p>All the exceptions -filed were dismissed by the court, and the Mastei’’s report was confirmed (no opinion filed.) Whereupon both parties took these appeals, assigning for error the action of the court in dismissing their respective exceptions, inter alia as above.</p>

<p>Ebiíoe to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term, 1884, No. 89.</p> <p>This was an action of assumpsit by Henry S. Grove et al., heirs and legal representatives of Conrad S. Grove, deceased, against A. Charles Barclay and John K. Barclay, to recover for use and occupation; for storage room, and for damages suffered by plaintiffs from the defendants’ refusal to remove certain machinery from, and allowing it to remain on and encumber plaintiffs’ property for a period of more than ten years, beginning in 1873. The name of A. Charles Barclay was afterwards struck out, leaving John K. Barclay the sole defendant. Pleas, non-assumpsit, .payment, with leave, etc., set-off, and the statute of limitations.</p> <p>The plaintiffs had previously filed a bill in equity, praying equitable relief, upon the same state of facts alleged in this action, which bill was dismissed for want of equitable jurisdiction : see Barclay’s Appeal, 12 Norris, 50.</p> <p>Upon the trial, before Thayeb, P. J., after the evidence was closed and the judge had charged the jury, the plaintiffs asked leave to file an amended narr. in tort, claiming damages for the defendants’ wrongful refusal to remove his goods from plaintiffs’ premises. Objected to; objection sustained; exception. . (Fifth assignment of error.)</p> <p>The other assignments of error were to the charge of the court. The facts, as they appeared from the evidence, are stated in the charge, which was as follows:</p> <p>This action is brought by the heirs at law of Conrad S. Grove, who is now deceased, against Mr. John K. Barclay, to recover damages for the failure to remove certain machinery from the premises No. 129 North Water street, in Philadelphia. It seems that these premises, together with the adjoining premises, 127, were originally owned by Mr. Andrew Barela}', the father of Mr. John K. Barclay and Mr. A. Charles Barclay, and that he conveyed these two houses respectively to his two sons. One hundred and twenty-nine, the house in which this machinery is situated, was conveyed to A. Charles Barclay. That conveyance was made by Mr. Andrew Barclay on the 1st of April, 1863. Mr. Boyer had been in partnership with these brothers in the business of manufacturing linseed oil on the premises. Mr. Boyer subsequently went out of the firm, and the two brothers remained alone and carried on the business. The machinery seems to have been the joint property of the two brothers. A bill of sale has been put in evidence on the part of the plaintiffs from the father, Mr. Andrew Barclay, to the two brothers, Charles Barclay and John K. Barclay, for the machinery. That instrument shows joint ownership in the machinery on the part of the two brothers. Some dispute seems to have arisen between the two brothers in regard to this machinery subsequently, the details and character of which are not in evidence. ..... While this was going on, Mr. A. Charles Barclay, the owner of the house in which the machinery was, who had become the owner by the deed from his father, conveyed the premises to Mr. Conrad S. Grove, now deceased. This conveyance from Charles Barclay to Grove was made on the 20th of June, 1878, and the consideration for the conveyance seems to have been, according to the conveyance, $19,000. That is, $6,000 of money, subject to a mortgage of $13,000, which was upon the premises, and the payment of which was assumed by Mr. Grove. After the conveyance the machinery continued upon the premises of Mr. Grove.</p> <p>Tbe good faith of the conveyance from Charles Barclay to Mr. Grove has been attacked, and it is said that he knew the machinery was there when he bought the house; that he had been a partisan of Charles before in the litigation which had taken place between him and his brother, and a witness for him, and it seems to be sought to be inferred that those circumstances give rise to a suspicion that he was not a bona fide purchaser, or indeed a purchaser at all, but that he was a mere cover for Charles Barclay. Well, it would be very dangerous, upon such slight evidence as that, gentlemen, to assume that he was not a bona fide purchaser, because, after all, It amounts only to a suspicion; the mere fact that he had been a witness for Charles Barclay, and that even he had identified himself as a partisan of his. If he did so — for I do not know how the fact is — it would not be sufficient to prove that a conveyance from Charles Barclay to him was a fraudulent conveyance. It seems to me, therefore, that, in the lack of any evidence to show to the contrary, you ought to assume that the conveyance of Charles Barclay to Conrad S. Grove was a bona fide conveyance, and that Mr. Grove became the lawful owner of the property by virtue of that transfer.</p> <p>The property remained upon the premises after Mr. Grove bought it. It was very large and heav}'- machinery, used in the manufacture of linseed oil. Mr. Grove, it seems, was desirous of getting rid of the machinery, because it incumbered his building.</p> <p>About six months after acquiring the title to the house, 129 Water street, he wrote a note, dated December 17, 1873, which has been given in evidence, addressed to the two brothers Barclay, in which he gave them notice that he claimed storage for machinery during the time which it had remained upon his premises after he had acquired the title up to the date of the note, and gave them notice to remove it, aud further notice that if they did not remove it he would sell it, with notice that the purchasers should remove it at their expense within a certain time. This note was sent about six months after he acquired his title. It was dated in December, and he acquired his title in June.</p> <p>An answer was sent to that note by Mr. West, who was the counsel acting for one of the Barclays, Mr. John K. Barclay, the present defendant. He does not seem to have represented the other brother. Acting for Mr. John K. Barclay, he sent a reply to that, in which, in effect, it seems to me, he sets up some kind of a claim, though it does not distinctly appear exactly what — from the note alone, to have this machinery remain upon the premises. He reminds Mr. Grove that he must have bought the property with the knowledge of certain complications which existed with regard to it. What those complications were are not set out in the note. In effect, he refuses to remove the machinery — that is, I think the fair inference from the note — and suggests, it seems to me, a right to have it remain there, giving him notice that if he, Mr. Grove,* removes it, he will- hold him responsible for any damage which may be incurred in consequence thereof.</p> <p>The effect of that reply from Mr. Grove seems to have been to have deterred him from carrying out the intentions declared in his note of the 17th of December, 1873, to the Barclays, for in that note, you will recollect, he gave notice that he would sell the property, and that it would be removed by the purchaser at the Barclays’ expense. The effect of this reply seems to have deterred him from carrying out that part of his declared intention, and the result was that the machinery continued to remain upon the premises through all these years, from 1873 down to 1883 — ten years. During that period Mr. Grove having died, the plaintiffs, being his heirs, claim compensation from Mr. Barclay in the way of damages for not removing this machinery, and their testimony shows a damage of $1,500 a year, which for ten years is $15,600. That may be said in round numbers, I suppose, to be the claim set up by the plaintiff. This claim is presented by the plaintiff in the pleadings which are filed in two aspects: First, as a claim for use and occupation of the premises, which can only be founded upon the relation of landlord and tenant existing between the parties, and, secondly, a claim for storage. The claim is presented in two alternative aspects. [Of course, both of these aspects cannot be maintained at the same time, because, if he was a tenant, and liable for use and occupation, he could not be charged for storage; and, oil the contrary, if lie was chargeable with storage, he could not be charged for use and occupation. But the plaintiffs, as they had a right to do, have presented their clqim, as I say, in these two alternative aspects. One of those views must be maintained'by the evidence, in order to enable the plaintiff to recover at all, because he can only recover upon the claim which he has presented in his declaration.]</p> <p>First, with regard to the claim for use and occupation. A claim for use and occupation is founded upon an implied contract of tenancy. No man can be sued for use and occupation, except where the relation of landlord and tenant exists between the parties. It is a claim which is made against a man, where he occupies as a tenant. Ordinarily this form of action is resorted to where there has been no express contract for a lease, but where the defendant has occupied permissively the premises for which the rent is claimed in the action. Where without any express contract between the parties one man has occupied the land of another, the other has tacitly permitted him to assume the relation of a tenant; has permitted the occupation, and so given rise to the implied contract between the landlord and tenant.</p> <p>It is true also that a man may recover for use and occupation, whore there has been an express contract of tenancy. In this case there is, of course, no express contract for any such tenancy. There is no evidence of any contract for a lease between Conrad S. Grove and Mr. Barclay. There never was any negotiation for a lease, and there is no evidence whatever of any express contract.</p> <p>Was there any occupation of the premises by Mr. John K. Barclay: such an occupation, I mean, as characterizes the relation of landlord and tenant; arising out of his failure to remove the machinery from the plaintiffs building? If a man takes possession of another man’s land and uses It, and the owner permits that use, he may claim for use and occupation. He may elect either to treat him as a trespasser and to dispossess him, or he may elect to treat him as a tenant, and sue him upon an implied promise to pay the fair value of the premises. [But the relation of landlord and tenant must exist in order to enable the party to maintain the action for use and occupation. The defendant must have had the dominion and control of the premises. It is not sufficient that lie may have had some property stored in a part of the premises, for which he may be chargeable for storage, or for warehousing, or something of that kind, but he must have had the absolute dominion and control. He must have been, in other words, the tenant, the tenancy arising out of the occupation upon the implied promise between the parties.]</p> <p>Now, had Mr. Barclay that kind of dominion and control over this house, 129 North Water Street, which characterizes the occupation of a tenant? Is his occupation, under the circumstances, consistent with the implication of a promise to pay rent as rent, leaving out of the question entirely now the claim for storage, and only considering it in its aspects as a claim for use and occupation ? [Did either of these parties regard the other as parties to an implied understanding for the payment of the rent ? Did Mr. Grove regard Mr. Barclay as liis tenant for these premises, or did he only regard him in the light of a person who had property there who refused to remove it; and did Mr. Grove himself retain the control of the premises ? If Mr. Grove retained control of the premises himself, then Mr. Barclay cannot be regarded as a tenant; and if not regarded as a tenant, he cannot be sued for use and occupation ; for it is necessary that that relation should exist, at least by implication, in order to enable the plaintiff to maintain that action. The correspondence would seem to show — at least, it seems to me to show — that -Mr. Grove himself was in possession of the property, because he claims in his letter that the Messrs. Barclay are keeping certain property upon his premises without his permission, and he claims damages for that unlawful act, and calls upon them to remove the property from his premises. If he were a tenant, it seems to me he would have called upon him for the payment of rent as rent, and recognized his rights there as a tenant by his consent. He writes* it seems to me, as a person in the possession of his own property, which he finds, however, incumbered by the property of another man whom he calls upon to remove that property. Is that consistent with the view that the defendant was his tenant? If he was not a tenant,'at least by an implied understanding with the parties, then as I said before, the action for use and occupation cannot be maintained.]</p> <p>.....In order apparently to avoid any question, however, which might arise from this difficulty of the alleged implied tenancy which is the basis for the action for use and occupation, the plaintiffs have, combined with that claim the claim for storage, during all these years, of the defendant’s machinery. As I said in the beginning, they have presented the case in an alternative form, so that if it should be determined that the defendant was not a tenant and was not responsible for any claim for use and occupation they might at any rate hold him for storage, and that brings me to consider the second branch of the plaintiffs’ case, which is founded upon the claim for storage. There never was any express contract for storage here, as is admitted by those parties. The property was upon the premises under the circumstances which I have already referred to. It belonged to the two brothers. It was there when Mr. Grove bought 129 North Water Street, and it remained there, not by any agreement of the parties, but through the failure of the owners of the machinery to take it away. There never was any express contract to pay storage, and the question arises, therefore, whether there was any implied contract to pay storage. [If a man will leave property in a warehouse or place adapted for such purposes at the cost of the owner, and take up the room which he might otherwise use himself, when he knows that he ought to remove the property out of the building, the law will raise an implied contract on the part of the owner of the goods to pay for the privilege of their storage. The owner of the premises may treat him as under an implied contract to pay for the storage of property. But that implication can only arise where it is consistent with all the circumstances and facts of the case. If the owner of' the property elects to treat the owner of the personalty as a trespasser, a wrongdoer, and gives him notice to remove his property or that he will remove it for him at his cost, that is inconsistent with the idea of a continuing contract between the parties for storage, because if he assumes that position and tells him to remove his property, or that he will remove it for him, it is totally inconsistent with the idea that the parties had entered into a contract either express or implied, that he would pay for the storage. In such circumstances he ought to put the property out after a sufficient notice to the owner. Up to the time when Mr. Grove assumed that position, I think he was undoubtedly entitled to look upon the Messrs. Barclay as responsible upon an implied contract that they would pay for the space which their goods were ocenpying in his house. He was entitled to regard it as a contract for storage at any rate during that six months, becanse they knew that their property was there; that it was incumbering his premises; that it was their duty to remove it; and that they might justly be called upon to pay storage if they allowed it to continue to remain there.</p> <p>[But can you suppose any contract for storage to have continued to exist after the correspondence of December, 1878? Is it possible to reconcile the attitude of the parties after that correspondence with the position of contractors to a contract of storage ? Mr. Grove gave them notice then that he should claim storage up to that time. He says, “I claim to be paid a reasonable amount for the storage of the said machinery during the time I have been the owner of the property.” That is, “ From the time I have been the owner of the property up to the time when I now write you this letter, I claim that you shall pay me storage.” He does not, however, go on to say, “I shall claim storage for the future during any time that you may leave it there,” but he says, “I notify you to take that property away, and I give you notice that if you do not take it away, I will sell it and I will have it removed at your expense.” Well, when Mr. Grove took this hostile attitude, and declared that the property should not remain upon the premises — that he would sell it and have it removed by the purchaser — it seems to me he placed himself then in a position which is inconsistent with any idea of a continuing contract for storage after that date. It was virtually saying to the Messrs. Barclay, it seems to me gentlemen, “ You are trespassing now, and I shall remove the property, which is trespassing upon my premises, at your expense; I will sell it, and I shall require the purchaser to remove it at your expense.” I do not see how the idea of an implied contract to pay storage can exist after that correspondence. It seems to me that the attitude of the parties was then totally changed, and that Mr. Grove might, as has been suggested, after that notice have taken that property out; that he would have been justified in doing so; and if the defendant refused to designate any place in which it could be put, he might have had it hauled to any fit place that lie saw proper, after notice to the defendant, without being liable for damages for so doing.</p> <p>[Does his neglect to'do that, and his omission to assert his rights in the manner which was the natural, and it seems to me, the legitimate manner to assert his rights after the letter of December, 1873 — does his neglect to do that authorize him to treat the contract of storage as a continuing contract and set up a claim now for ten years of storage, amounting to $15,000? It does not appear to me, gentlemen, that it does. While, therefore, I think it would be competent for hyn to maintain his action for the six months’ storage up to the 17th of December, 1873, it seems to me that his claim came to an end at that date, and that, having then taken a position which was totally incompatible with that of a contract relation, either express or implied, he could only assert his rights subsequently either by an actual removal of the property from the premises or by suing the defendant for not removing the property, in an action founded in tort. I suppose he might have had that remedy as well as the remedy by removal. But it does not seem to me that any contract relation about the storage could exist after the correspondence of December, 1873. Whether it existed before is a question for you. It seems to me that it is a fair inference, from all the facts, that it did exist before; that is, that the circumstances justly gave rise to an implied promise to pay storage up to that time, because the owners of this property could not fairly expect that Mr. Grove should allow that property, which took up a large pox'tion of the building and rendered it to a certain extent of little value, they could xxot fairly expect that px’operty to remain upon Mr. Grove’s premises without paying him for the privilege, and that being the condition of the parties, I think that a fair implication of a promise arose for him to pay and to pay for the use as storage during that period, but it seems to me that the relations of the parties were essentially altered by this correspondence of 1873, when they were given distinctly to understand that that property was not there then any longer by any contract, express or implied; that the defendants were trespassers; and that the plaintiff was going to remove it and sell it at their expense. I do not see how the idea of an implied contract for storage is consistent with the relative position of the parties after that date. I cannot see that. It seems to me, then, both parties were at arm's length. They had assumed a hostile attitude. Mr. G-rove was declaring: “You are trespassers in keeping this property upon my premises, and I will remove it.” He might have removed it; it was his duty to do so. That was his remedy, or he might then perhaps have sued the defendants in an action for tort, an action founded upon neglect in not removing. I do not see, however, how he could maintain the action upon a contract to pay storage after the correspondence of 1873.]</p> <p>After the charge, the counsel for the plaintiff said that under it there was nothing to go to the jury, whereupon the Court said to the jury: “You will, of course, understand, gentlemen, that I have practically decided this case upon grounds of law, and have virtually taken it from you.”</p> <p>Verdict for the defendant and judgment thereon. The plaintiffs took this writ of error, assigning for error the refusal of the court to allow them to file, on the trial, an amended’ narr. in tort, and those portions of the foregoing charge inclosed in brackets.</p>

<p>Error to the Court of Common Pleas No. 8, of Philadelphia county: Of January Term, 1884, No. 88.</p> <p>Assumpsit, by the Mount Vernon Building Association against Miles King, to recover the amount of taxes for the years 1879, 1881 and 1882, paid by the plaintiff, which it was claimed the defendant was personally responsible for by virtue of his ownership of the property taxed, during those years.</p> <p>Pleas, non-assumpsit, payment with leave, etc.</p> <p>On the trial, before Ludlow, P. J., the following facts appeared: For several years prior to 1879, Joseph B. Hancock was the owner of premises No. 1728 Girard Avenue, in the city of Philadelphia, subject to a mortgage thereon, held by the Mount Vernon Building Association. On June 14. 1879, said. Joseph B. Hancock by deed of that date, recorded two days later, conveyed said premises, inter alia, to Miles King, for the nominal consideration of $1,000. The real consideration was stated by Hancock to be indebtedness due by him to King. Shortly prior to said conveyance, the said mortgagee entered judgment against Hancock on the bond accompanying said mortgage. King testified that he knew nothing of the conveyance to him until after it was made, and finding the property was encumbered to an amount exceeding its value, he told Hancock he did not want it, whéreupon Hancock caused a deed of re-conveyance to be prepared, from King to Joel C. Hancock, a son of Joseph B. Hancock, which King executed on June 17, 1879, three days after the conveyance to him. This deed was not recorded, and did not pass out of the possession of the conveyancer, by whom it was produced on the- trial. There was no evidence of its delivery to the grantee.</p> <p>The Mount Vernon Building Association, in 1882, purchased said premises at sheriff’s sale under an execution upon their said judgment, for an amount insufficient to pay their mortgage debt, and received a sheriff’s deed therefor dated June 10, 1882. At that time the taxes on said property for the years 1879, 1881, and 1882, were due and unpaid, amounting to $482.93, which taxes said association paid July 11, 1882, to recover which this suit was brought. The taxes for 1879 were assessed in 1878, in the name of Joseph B. Hancock, and the taxes for 1881 and 1882 were also assessed in the same name.</p> <p>The Judge charged the jury, inter alia, as follows:—</p> <p>“ There is a principle of law settled in this State which virtually holds that when the owner of property owns it subject to certain fixed liens, he becomes responsible for them. If, at the time the defendant owned this property, there were taxes due and unpaid, which were liens, though assessed the year before, in my judgment, he is responsible for the taxes. I think that in any event he would be responsible for taxes due in June, 1879, for he held the property undoubtedly for three days, from the 14th of June, 1879, to the 17th of June, 1879.” (First assignment of error).</p> <p>“Another question is whether he is responsible for anything beyond this sum. That depends on who was the real owner after June, 1879. There is some evidence that a deed was executed to Joel C. Hancock three days after the deed to him of 14th June, 1879. In other words, after June 17, 1879, a deed was executed, and never recorded, which remained with Haines till this morning. In determining the question of ownership, I say to you that if that deed was executed with an intent to cover up this property so that the creditors of Joseph B. Hancock could not reach it, and that the deed so executed was left unrecorded in possession of Haines, the title never changed. The jury in finding such a state of facts as that would have a right to find the whole object of that conveyance was in point of fact, fraudulent, and, if so, the title was never divested and remained in King. If so, he becomes responsible for the tax liens existing at the time of the sale by the sheriff, which were paid by the plaintiff.” (Second assignment of error).</p> <p>“If King was the real owner from June 14 to June 17, 1879, then, for whatever taxes were liens upon the property at that time, he is responsible, and your verdict should be for that amount at least. If he was not the owner after the 17th June, then he i's not responsible for anytax.es assessed after he parted with the title, but he is responsible for taxes which were liens at the time of his so parting with his title.” (Third assignment of error).</p> <p>Verdict for the plaintiff for $517.91, and judgment thereon. The defendant took this writ of error, assigning for error the portions of the charge above quoted.</p>

- 4, of Philadelphia County: Of January Term, 1884, No. 90. Assumpsit, by the National Bank of the Republic against John Carpenter, on a promissory note for $1,500, made by the defendant to the order of one F. C. Hooton, and by him indorsed. The defendant filed the following affidavit of defence :— “ The note in question was given to F. C. Hooton without any consideration. He had endorsed a note by myself to the order of my father, Francis Carpenter, which was discounted.

<p>1. The Act o£ March 17, 1869, authorizing the commencement of actions by attachment, in certain cases where fraud is alleged, is not unconstitutional.</p> <p>2. It is within the power of the court, where testimony has been taken by depositions, to refer the same to a Master to report the facts.</p> <p>8. On the trial of an action against A., B., and C., trading as A. & Co., evidence is admissible, on behalf of the plaintiff, showing that although the debt in suit was contracted by A., prior to the admission of B. and O. into the firm, yet that the new firm, in consideration of receiving the assets of A., agreed to assume all his liabilities, and that the firm subsequently wrote a letter to the plaintiff recognizing said debt as a debt of the firm, and also included it in a schedule of the firm debts.</p>

100. This was an appeal by William H. Ivins from a decree of said court, in the matter of the distribution of the balance appearing due by the account of the Fidelity Insurance, Trust and Safe Deposit Company trustees under the will of Charles Abbey, deceased.- Said balance consisted partly of personal estate received by said trustees from the executors of said decedents, appraised at about $74,000, and partly of rents of real estate collected by the trustees.

<p>1. A devise of real estate, charged with the payment of existing incumbrances on certain other real estate limited under the provisions.of a deed of trust to persons other than said devisee, imposes a personal charge upon the devisee accepting such devise, as well as a lien on the property devised, in favor of the cestuis que trustent under such deed.</p> <p>2. Such testamentary provision is, in effect, a bequest of the amount of such incumbrances for the use of said cestuis que trustent, and they can enforce payment thereof by sale of the property charged, by petition in the Orphans’ Court.</p> <p>3. A person having a power of appointment as to certain trust property on which there were incumbrances, made a deed settling the property to tlie use of Ills sister for life, and at her death or marriage, to the use of other parties, and authorizing her to suffer the incumbrances to stand while she lived, and if necessary, to create new ones to discharge the old. Eight days later lie made a will, in which he devised and bequeathed tlie residue of his estate to the same sister charged with the payment of the mortgage debts upon this trust estate, without any provision or qualification as to the time of payment. The sister accepted the benefit of the will:</p> <p>Held, Unit the two writings could not be read as one instrument, that their provisions were conflicting, and could not both bo carried into effect, and that the last was the law for the parties, and that the directions of the will must therefore be carried out.</p> <p>Held, also, that the deed defined the persons for whoso use the trust property was hold, but that they were the beneficiaries of the provision in the will, that the incumbrances on this property should be paid out of testator’s residuary óslate, which provision ivas tlie same in effect as a bequest of so much money to them. The fact that it was necessary for them to produce the deed, with other evidence, to establish that they were entitled, as legatees, was no reason for saying that their interest is derived from the deed.</p> <p>4. In such case, where the holders of the mortgages oil the trust properly were not urging payment, and no sales were made of the land charged with the burden of discharging these obligations, the court might well infuse immediate action, as delay, for a reasonable time, would be of little, if any, prejudice to those entitled to the trust property on the termination'of the life-estate. But in this case, seventeen years having elapsed since the death of the testator, and portions of his residuary estate having been sold, and having realized several thousand dollars more than the incumbrances, one portion having been sold by judicial process which discharged all liens, it was</p> <p>Held, that there was no excuse for demanding further time, and that the legatees had a right to ask that the incumbrances be discharged at once, and that they bo freed from the clanger and inconvenience of watching for judicial sales, and tlie trouble and expense of contests for the proceeds in order to protect their interests under the will.</p> <p>o. Whether a legatee is entitled to a decree in the Orphans’ Court, fixing personal liability for the legacy upon the devisee who has accepted land charged with payment of the legacy, not decided.</p> <p>6. Semble, that where a petition presents a meritorious case, leave will be granted at any stage of the proceedings so to amend the prayer as to ask, in a formal way, for the relief appropriate to the case.</p>

<p>Appeals from the Orphans’ Court of Philadelphia county: Of January Term, 1884, Nos. 106, 107 and 108.</p> <p>These were three appeals (1) by James Rawle et al., executors of the will of Edward Peace, deceased; (2) by Robert Carter, guardian of Coleman Peace Brown; (3) by the Pennsylvania company for Insurances on Lives, etc., guardians of Anna Coleman Watts and John Murray Watts, all from the same decree, in the matter of the will of Dr. Edward Peace, deceased.</p> <p>The case arose upon a petition filed by James Rawle et al., executors of said decedent, praying (1) that a certain division of real estate into five equal parts, made by the petitioners, as directed by Dr. Peace’s will, be confirmed by decree of the court; (2) that the court decree as to who are entitled to said respective shares; and (3) that the petitioners be authorized to make good the said division by executing proper deeds of conveyance ; or (4) that the respective parties be decreed to interchange the necessary cross deeds to that end.</p> <p>, Answers were filed, which admitted the facts averred in the petition, which were as follows:</p> <p>Mrs. Anna C. Peace, wife of Edward Peace, died February 21, 1876, having by her will devised and bequeathed her residuary real and personal estate to her husband, Edward Peace, for his life, and at his death to such persons and in such shares and manner as he by will might appoint.</p> <p>Dr. Edwai’d Peace- survived his wife, and being’ the owner of real and personal estate other than that passing under the said will of his wife, died September 10, 1879, having by his will directed, inter alia, as follows:</p> <p>“ The residue of my estate, of every kind, and that left to hie by my beloved wife by her last will and testament, to dispose of as I deemed best, I direct my executors to divide into five parts. One part I will and bequeath to my son Philip Physick Peace; one part I will and bequeath to my son Edward Coleman Peace; one part I will and bequeath to my daughter Anna Peace Bache; one part I will and bequeath to my daughter Florence Peace; one part I' will and bequeath to Mary Peace. The three last parts of my estate are to be held in trust by my executors or trustees, and the interest'■ to be paid quarterly into their own hands.</p> <p>“I also give to my daughters power to dispose of their shares by will, if they leave no children, as they choose; but if either should leave children, they are to inherit their mother’s share equally at her death. If either of my children should die before attaining the age of twenty-one years, their part of my estate is to be divided among the survivors equally.</p> <p>“I appoint James Rawle, J. Coleman Drayton, John S. Watts, Philip P. Peace, and Edward Coleman Peace as executors and trustees.”</p> <p>Edward Peace left surviving three daughters, Anna, Florence and Mary, and two sons, Philip and Edward. Anna, one of the respondents, was then the widow of Alfred B. Bache; after her father’s death she married the respondent, Henry H. Brown. Florence was then, and is now, the wife of Robert M. Smith, both respondents herein; they have two minor children, Francis G. and Vernon P.</p> <p>Mary was then the wife of John S. Watts, one of the petitioners ; she died before this petition was filed, leaving her husband and two children, Anna C. and John M. Philip and Edward, the two sons, are of age, and are petitioners herein.</p> <p>Mary devised all her property, real and personal, to her husband, John S. Watts. On November 6, 1880, the Pennsylvania Company for Insurance, etc., appellants here, were appointed guardian of these two children.</p> <p>The petitioners, as directed by the will, divided the real estate in question into five equal parts, which division was set forth in the petition.</p> <p>Of the entire property disposed of by Edward Peace more than five sixths consisted of property real and personal of which Anna C. Peace died seised ancl possessed; the entire personal property was about $190,000, and real property about $145,000. Edward Peace drew his own will.</p> <p>The petition further set forth that the petitioners were advised that one fifth part of the real estate in question was vested in them as trustees for Anna P. Brown; another as trustees for Florence P. Smith; another was vested in the minor children of Mary; and the remaining two shares were vested in the two sons Philip and Edward Peace.</p> <p>The answers of Mr. and Mrs. Brown and Mr. and Mrs. Smith set forth that they were advised that each of them was entitled to one share of the estate in fee simple, free of trust.</p> <p>Thus a question arose as to the estate and interest the daughters took. There was no question as to the interest of the sons.</p> <p>The case was first heard by the court below upon petition and answers. Counsel for Mrs. Brown and Mrs. Smith contended that the first clause of the will gave to the daughters the fee of the real estate and the personal estate absolutely, hoth in their shares of Dr. Deace's own estate and in that of his wife over which he had a power of appointment, and that the clause directing a trust of the daughters’ shares applied only to Dr. Peace's own estate.</p> <p>The court, in an opinion by Penrose, J., held that “ a literal adherence to the language of the will of Dr. Peace would confine the operation of the trust to the estate of which he was the absolute owner; but this construction would leave ■little or nothing to be covered by it......With the very extensive powers which he possessed under his wife’s will, it was natural for him, when making a joint division of the two estates, to speak of them as his estate; and the precise signification of his words must give way to his manifest intention.”</p> <p>After this'opinion of the court below was delivered, Mrs. Brown remembered that her father had spoken to her of a certain interest he owned in unseated lands in Northern Pennsylvania, which since his death had become very valuable as oil lands. It had not been supposed that the interpretation of the will would hinge upon the relative sizes of Dr. Peace’s own estate and that derived from his wife. It was then agreed between the parties that the pleadings should be amended, and a more careful appraisement of both estates was made, by which it • appeared that Dr. Peace’s estate was relatively larger than as averred in the original petition.</p> <p>■ A question- of fact then arose as to -whether Dr. Peace, when he made his will, had in his mind the probable or even possible, future value of these wild lands. An examiner was appointed to take testimony, from whose report it appeared that the development of these lands took place two and a half years after the date of the will, and that Dr. Peace did not at that time actually deem the lands of any great present or even future' value. . ■</p> <p>The case having been again heard by the court below, upon the amended petition and answers, and proofs, the court reversed its former decision, Penrose, J., filing the following opinion:</p> <p>“As the case was originally presented to us, it was difficult to resist the conclusion, in view of the supposed insignificancy of his own estate, that the testator designed, in the trust -which he created for his daughters, to include the estate which passed under their-mother’s will, as to which, as his power of appointment was unlimited, and he had possessed a- life estate,- he' might naturally speak of it as his own.</p> <p>“But it is now shown that the" impression - created by the petition and answers was erroneous; and that not only was the estate of which he was himself the owner considerable, but that it embraced a property which he seems to have supposed might in the future have a very large value; and hence the wish to have it placed beyond the present power of disposal of his daughters and to secure it to them and to their children was an entirely natural one, especially as their mother’s estate gave them enough for their present necessities. The terms of the will may therefore be satisfied without any departure from their literal meaning: and this is always the safest rule of construction.</p> <p>“ The residue of my estate,’ he says, ‘ of every kind, and that left to me by my beloved wife by her last will and testament to dispose of as I deemed best, I direct my executors to divide into five parts. One part I will and bequeath to my son Philip;.....one part I will and bequeath to my son Edward;.....one part I will and bequeath to my daughter Anna;.....one part I will and bequeath to my daughter Florence;.....one part I will and bequeath to Mary; .....The three last parts of my estate are to be held in trust,’ &c., &e., &c.</p> <p>“ As he thus speaks in the beginning of the paragraph of his own estate and that of his wife subject to his power of appointment, as separate and distinct, it must be assumed that the fact that they were not the same was still in his mind when he directed that his daughters’ shares of his estate shall be held in trust; his intention being that their mother’s estate should go to them absolutely, just as she had directed in the event of the non-exercise of the power of appointment.</p> <p>u Tlie decree heretofore made must therefore be amended so as to exclude from the trust the daughters’ shares of their mother’s estate, which will be awarded to them absolutely.</p> <p>After the case was decided, but before the decree was entered Anna Brown died, leaving a husband and an infant child to survive her, and giving the greater part of her estate to her husband. Her death and a copy of her will were suggested of record.</p> <p>A lengthy formal decree was settled in accordance with the foregoing opinion, from which decree the several parties took these appeals.</p> <p>The executors of Dr. Edward Peace’s will filed the following assignments of error :—</p> <p>The court below erred: — ■</p> <p>1st. Because it decreed that by the proper construction of the said will one undivided fifth part of the real estate described in the petition is therein devised in fee simple to Florence Peace Smith, one of the respondents.</p> <p>2d. Because it directed the petitioners to execute and deliver such deeds of conveyance, release, or otherwise, as shall be necessary to vest in the said Florence Peace Smith in severalty in fee simple the title to the various parcels of real estate described in the petition as constituting “No. 5. — Share for Trustees of Thomas Peace Smith.”</p> <p>8d. Because it did not decree that by a proper construction of the said will the said undivided interest in said real estate is devised to the petitioners to hold during the life of the said Florence Peace Smith, in trust, however, to pay the income thereof quarterly into her own hands, and after the death of the said Florence Peace Smith the said real estate is thereby-devised to her children equally, if she should have any, and in default of such children, then to such person or persons as the said Florence Peace Smith may by her will direct; and in default of such children or such directions, to the heirs-at-law of the said Florence Peace Smith.</p> <p>The specifications of error in' the appeal of Robert Carter, guardian, etc., were as follows:—</p> <p>The court below erred:—</p> <p>1st. Because it decreed that by the proper construction of said will one undivided fifth part of the real estate described in the petition is therein devised in fee simple to Anna Peace Brown, one of the respondents.</p> <p>2d. Because it directed the petitioners to execute and deliver to the person or persons entitled thereto under the will of the said Anna Peace Brown all such deeds of conveyance, release, or otherwise, as shall be necessary to vest in him or them the various parcels of real estate described in the said petition as constituting “No. 1. — Share for Trustees of Anna P. Brown.”</p> <p>3. Because it did not decree that by the proper construction of the said will an undivided one fifth part of the real estate is therein devised to Coleman Peace Brown, the sole surviving child of Anna Peace Brown.</p> <p>4th. Because it did not decree the said petitioner to execute such deeds of conveyance, release, or otherwise, as may be necessary to vest in the said Coleman Peace Brown ih severalty in fee simple, the various parcels of real estate described in the said petition as constituting “Share No. 1. — The Share of Anna Peace Brown.”</p> <p>The specifications of error in the appeal of the Pennsylvania Company, etc., guardians, were as follows:—</p> <p>The court below erred:—</p> <p>1st. Because it decreed that by the proper construction of the will of Edward Peace, deceased, one undivided fifth part of the real estate described in the petition is therein devised in severalty in fee simple to Mary Peace Watts.</p> <p>2d. Because it directed the petitioners, James Rawle, John S. Watts, Philip P. Peace, and Edward C. Peace, to execute and deliver, such deeds of conveyance, release, or otherwise, as shall be necessary to vest in severalty in fee simple in John S. Watts, devisee under the will of the said Mary Peace Watts, the various parcels of real estate described in their petition as constituting “ Share No. 3. — The Share of Anna Coleman Watts and John Murray Watts.”</p> <p>3d. Because it did not decree that by the proper construction of the said will the said undivided one fifth interest in the said real estate is devised to the said Anna Coleman Watts and John Murray Watts equalty in fee simple.</p> <p>4th. Because it did not direct the said petitioners to execute such deeds of conveyance, release, or otherwise, as may be necessary to vest in the said Anna Coleman Watts and John Murray Watts, equally, in fee simple, the said various parcels of real estate constituting “ Share No. 3. — Share of Anna Coleman Watts and John Murray Watts.”</p> <p>The three appeals were argued together.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term, 1884, No. 122.</p> <p>This was an appeal by Joseph R. Livezey from a decree of said court, dismissing his exceptions to the adjudication of the auditing judge, in the matter of the account of Israel H. Johnson et al., trustees under the will of John Livezey, deceased, and distributing the residuary estate of said testator.</p> <p>The facts were as follows: — John Livezey died January 13, 1878, having made liis will, dated December 1, 1868, and six codicils, dated between 1870 and 1877. By bis will he directed his executors to pay to his wife during her life the whole of the net income from his estate, after deducting taxes and repairs of real estate, and the expenses of the trust, and also certain legacies, and gave, devised and bequeathed his residuary -estate, after the death of his wife, to his nephews John Livezey, Jr., and Thomas Livezey, and his nieces Anna Louisa Livezey and Sarali Marshall Livezey, t,o be divided between them share and share alike.</p> <p>By his third codicil, dated February 23, 1874, he disposed of his residuary estate as follows:—</p> <p>“Item. The rest and residue of my estate I will, and bequeath to my two nephews, Joseph R. Livezey and Thomas Livezey, Jr., and my two nieces, Ann Louisa and Sarah M. Livezey, share and share alike. Whatever portion shall come to Joseph R. Livezey and my two nieces shall be held in trust by my executors for their use, and the net income from the same shall be paid to each respectively, and in case of the death of either, the heirs of such decedent shall receive the same on arriving at the age of twenty-one years that the parent would have taken. In the event of the death of either of my nephews or nieces without leaving lawful issue, a child or children to survive them and attain the age of twenty-one years, then the share of such nephew or niece, I direct my executors to pay from principal of said share, two thousand dollars to the Emlen Institute for the Benefit of Children of African and Indian Descent; five thousand dollars to the Orthopedic Hospital, Seventeenth and Summer streets, Philadelphia ; five thousand dollars to the Old Men’s Home; three thousand dollars to the Home for Aged Colored Persons, Forty-fourth and Belmont avenue. All the remainder of said shares, if any, I direct my executors and the survivor to distribute amongst such charitable institutions and for the relief of the needy as may in their judgment seem proper...... I direct the foregoing to be added as a codicil to my last Will and Testament, dated twelfth month, 1st, A. D. 1868. I do hereby annul such parts thereof as conflict with this Codicil, all other parts I do hereby ratify and confirm the same, declaring that with these alterations and the foregoing Codicils only to be and contain my last Will and Testament and Codicils thereto.”</p> <p>The trustees filed an account of the residuary estate December 23, 1881, which was confirmed. The balance for distribution was 140,731.45.</p> <p>The testator’s widow being deceased, John R. Livezey and Thomas Livezey claimed to be entitled each to one fourth of the above balance, absolutely. The auditing judge (Ash-man, J.,) held that the shares of both said nephews of the testator, and of his two nieces were vested, under said codicil, in the accountants, as trustees for said nephews and nieces for life, and thereafter as limited in said codicil.</p> <p>Exceptions were filed by John R. Livezey and Thomas Livezey, respectively, to the adjudication, and the court, in an opinion by Hanna, P. J., sustained the exceptions of Thomas Livezey, but dismissed those of John R. Livezey, and a decree was entered awarding one fourth of the balance for distribution to Thomas Livezey, absolutely, and the remaining three fourths to the accountants “ as trustees for the purposes of the trusts as to the nephew and two nieces, declared by the third codicil of testator’s will.”</p> <p>John R. Livezey thereupon took this appeal, assigning for error the refusal of the court to award to him, absolutely, one fourth of said balance for distribution, and the decree awarding the same to the accountants, to be held in trust by them.</p>

<p>1. Where, by agreement; of the parties filed, a cause is submitted to a referee under the provisions of the Act of May 14, 1874, the decision of the referee must conform to the requirements provided by the Act of April 22, 1874, with respect to the decision of a court in a ease of a submission under the last mentioned Act. That is, such decision must state separately and distinctly the facts found by the referee, the answers to any points, submitted by counsel, and the referee’s conclusions o£ law, and judgment cannot be entered upon such decision, until thirty days after filing and notice thereof by the Prothonotary to the parties. A referee’s decision, lacking the foregoing requisites, and a judgment entered thereon upon the same day it was filed, although after ample notice given by the referee to the parties and a hearing of exceptions, will be reversed upon writ of error.</p> <p>2. Marr v. Marr, 7 Out., 463, followed.</p>

<p>1. The technical meaning of the word “heirs” must be given to it when used in a will, unless mere is a clearly expressed intent to the contrary.</p> <p>2. A testatrix died, leaving surviving her two daughters, A. and B., and a son, C. By her will she devised certain real estate to a trustee in trust to pay one-third of its income to A., another third to B., and the remaining third to C., “for the term of their natural lives respectively, and from and after their decease to vest absolutely in their heirs forever.” C. died intestate and without issue, leaving a widow.</p> <p>Held, that his share under the above will passed upon his decease to Ms sisters, A. and B., and not to Ms widow.</p>

<p>1. An Act of Assembly cannot be repealed by non-user. It can be repealed only by express provision of a subsequent law, or by a clause of sueli subsequent law so positively repugnant to its provisions tliat the two cannot stand together, or be consistently reconciled.</p> <p>2. The portion of the Act of August 26, 1721, section 4 (1 Cary & B. L., 157), prohibiting the sale of fireworks in the city of Philadelphia without special license, and imposing a penalty for violation of its provisions, is in force, and has not become obsolete or repealed by subsequent legislation.</p> <p>3. Statutes which are general in their scope relating to the raising of revenue, by imposing duties or taxes on vendors of merchandise, do not supersede or repeal any special Act or local statute regulating or prohibiting' the sale of certain articles, whether such latter Acts be prior or subsequent to the general tax law.</p>

<p>1. Where, fey the terms of a ground rent deed, a perpetual rent is reserved, with a proviso, that if the grantee, his heirs and assigns, should, within ten years from the date thereof, pay to the grantor a capitalized sum, and the arrearages of said rent, then said rent should cease and fee extinguished, and the covenant for payment thereof should fee void, said rent is not redeemable after said period has elapsed.</p> <p>2. The Act of April 22, 1850, § 21 (P. L., 553), does not apply to such a deed.</p> <p>3. Said Act of April 22, 1850, section 21, does not prohibit the reservation of a rent as above. It prohibits only the reservation of ground rents not perpetual in their inception, hut to become perpetual upon the failure o£ the vendee to eomply with a covenant or condition therein contained.</p>

<p>Error to the Court of Common Pleas No. 1, of Philadelphia county, to review the judgment entered upon the decision of a referee, appointed by agreement under the provisions of the Act of May 14, 1874: Of January Term, 1884, No. 166.</p> <p>Assumpsit, by William G. Pennypacker & Co., against Jones, Ballard & Ballard, to recover damages for breach of contract in failing to furnish certain machines to plaintiff's according to contract. Defendants subsequently brought an action against plaintiffs to recover the price of said machines. Both cases were referred to George Tucker Bispham, Esq., as aforesaid, who reported the facts to be substantially as follows :</p> <p>Plaintiffs owned and operated a flour mill in the city of Philadelphia. In 1881 they entered into the following contract with defendants:—</p> <p>“Philadelphia, Pa., July 5th, 1881.</p> <p>“We the undersigned hereby agree to place in your mill 2186 Market street, Five of our reduction machines for wheat, one machine for Bran, and Four of my Middlings Mills, which with the one Allis Boiler Mill and one set Smooth rolls now in said mills and to be retained, we undertake will produce the result stated below. We further agree and contract that with this arrangement of machinery, as we shall plan it, your mill shall have a capacity not below two hundred barrels daily with full modern percentage of high grades flour equal in quality to best in market. We will complete all and start everything complete and show full satisfactory results as above stated for the sum of thirty-seven hundred and fifty dollars, to be paid when all is finished and proved, including all bolting connections, spouts, elevators, belts, &c., and in fact everything made absolutely complete. We further agree that this shall be no experiment and in proof of same we hereby agree that our machines shall be retained without any price being paid by you in case results are not as promised. Again further we agree to ship our machines within ten days from date we receive your order, and not to stop your mills exceeding six days from time we commence work, which shall be done promptly on arrival of our machines at Philadelphia. It is understood that you will procure first-class workmen to put up machines and construction generally for our account and pay their wages charging same to my contract as an advance payment on same. I undertaking the full management and plans of said workmen. The responsibility of purifying the middlings must be entirely with party furnishing purifiers, and the middlings must be returned to my machines in clean condition.</p> <p>“I hereby agree to the Snow Flake Machine being used.</p> <p>“ Jones, Ballard & Ballard.</p> <p>“The above is hereby accepted subject to conditions as therein stated. Payment to be made after a stead}*- run of six days consecutively showing a production in flour of 1200 barrels, or 200 barrels each consecutive day, with clean feed.</p> <p>“ War. G-. Pbnnyp acker & Co.”</p> <p>The machines did not arrive at the time stipulated, and there was a delay of more than six days in starting the mill after the machines were delivered. This, however, was not occasioned by the fault of defendants.</p> <p>After being tested, the machines were found defective, and failed to produce the stipulated 200 barrels a day. The mill was kept running with said machines until October 15,1881, when it was stopped. The plaintiffs then repaired the mill arid put in some new machinery, retaining a portion of that furnished by defendants. The present actions were then instituted.</p> <p>The referee found that plaintiffs had paid defendants in advance on account of the price of the machines $930.79.</p> <p>Fie also found that they had sustained a direct actual loss on account of the defect of the machines in the running of the mill amounting to $1,096.75.</p> <p>He also found that plaintiffs expended in repairing their mill and putting it into condition to produce 200 barrels of flour a day the sum of ©2,080.95.</p> <p>He also found that a loss of possible profits was sustained by plaintiffs, amounting in all to ©12,411.</p> <p>The referee reported that the last class of damages above named were too speculative and remote, and further was of opinion that, as by the express terms of the contract, plaintiffs might retain the machines without paying any price “ in case the results were not as promised,” this amounted to a stipulation liquidating the damages, and that, therefore, plaintiff's were not entitled to other or further damages. In the cross-action by Jones, Ballard & Ballard against William (}. Pennypacker & Co., he found generally for defendants.</p> <p>The plaintiff filed, inter alia, the following exceptions to the referee's decision:—</p> <p>1. Because the referee finds as a conclusion of law that under the contract between the parties the value of the machines retained by the plaintiffs is to be treated as liquidated damages, and that hence although the said machines are totally incapable of producing the stipulated results, and may be utterly worthless, yet the said plaintiffs cannot recover any damages whatever caused by the defendants’ breach of contract.</p> <p>2. Because the learned referee erred in not reporting, as a conclusion of law from the facts found that the plaintiffs were entitled to recover the amount of damages which they proved to have sustained by reason of the defendants’ breach of contract.</p> <p>3. Because, assuming that the referee was correct in finding that the plaintiffs were barred from all redress for their proved damages by reason of the contract clause, whereby the defendants agree that “ our machines shall be retained without any price being paid by you in case results are not as promised,” yet the learned referee should have found as a conclusion of law that if the damages were thus liquidated by the said clause, yet that full effect must be given to the said clause, and that the plaintiffs were, therefore, entitled to recover the money actually paid by them as advance payments on account of the said machines, amounting, as reported by the referee, to ©930.79, as otherwise the said plaintiffs have not retained the machines without any price being paid, but on the contrary have paid a great portion of such price.</p> <p>The referee overruled these exceptions, and judgment having been entered according to his decision, Win. Gr. Penny-packer & Co. took this writ of error, assigning for error the overruling of said exceptions and the judgment.</p>

In the Supreme Court of Pennsylvania. This was a rule granted by this court upon the petition o£ Ira H. Burns, to show cause why a writ of… Held: and that no formal nominations were made for the office: that there were some votes cast for the relator at said election numbering in all 4500, and that these votes were not entered upon the records of the court because in the judgment of the respondent they were not warranted by law. The case was heard on petition and answer.

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term, 1884, No. 175.</p> <p>This was a case stated, wherein Charles Middleton et ah, executors of Allen Middleton, deceased, were plaintiffs, and C. Wilmer Middleton was defendant, setting forth the following facts for the judgment of the court as upon a special verdict, the parties reserving the right to take a writ of error from the judgment:—</p> <p>Defendant agreed to purchase from plaintiffs two certain tracts of lands situated in the city of Philadelphia, late in the township of Lower Dublin, county of Philadelphia, containing respectively 63 acres, 66 perches, and 33 acres, 129 perches of land, for the price or consideration of thirty thousand dollars; plaintiffs at the same time agreeing that the title to said tracts of land should be good and marketable, and clear of all encumbrances. And thereupon plaintiffs on March 1, 1883, duly executed, acknowledged, and tendered to defendants a deed in due form for said tracts of land, and demanded payment of the said price of thirty thousand dollars. Defendant refused to accept the deed, or pay the money, on the ground that such deed would not pass a good and marketable title in fee simple to the land.</p> <p>One John W. Middleton was in his lifetime seised of said lands in fee simple subject to the lien of a judgment entered in the District Court for the city and county of Philadelphia, at the suit of plaintiffs’ testator, Allen Middleton, against the said John W. Middleton to December Term, 1872, No. 1911. Said judgment was entered February 26, 1873, for $35,841.63, and was the fifth judgment of revival of a confessed judgment entered in the same court March 29, 1853, to March Term, 1853, No. 91.</p> <p>Afterwards Allen Middleton died, and plaintiffs, his executors, having been substituted, on December 1, 1877, issued a sci. fa. against John W. Middleton, to revive Said judgment and qu. ex. non, to which said John W. Middleton made defence,-filed pleas and issue was joined, but before the same came to trial said John W. Middleton died, leaving him surviving a widow, Sarah Middleton, and five children, to wit, Anna Smallwood, Clara Paul, Richard A. Middleton, Emma Kaighn, and Alice Middleton ; and the said Sarah Middleton took out letters of administration on his estate.</p> <p>On February 24, 1879, by writing filed, the death of said John W. Middleton was suggested on the record of said judgment, and in February 26, 1879, a sci. fa. to revive and qu. ex. non was issued against Sarah Middleton, administratrix, which was returned “made known.”</p> <p>On May 20, 1879, judgment was entered on said sci. fa. for want of an appearance, and damages were assessed the same day at $49,282.23.</p> <p>A fi. fa. issued on this-judgment the same day, under which the tracts of land hereinbefore mentioned were levied upon and condemned. A vend. ex. issued June 23, 1879, and said tracts were sold to plaintiffs by the sheriff on the first Monday of July, 1879, and Sheriff William H. Wright executed deeds for the same to plaintiffs, which deeds were acknowledged in open Court of Common Pleas, No. 1, for the county of Philadelphia, July 12,1879, and entered among the records thereof. The grant in said deeds was in the following words, to wit: “ Plave granted, bargained and sold, and by these presents according to the directions of the said writ and by force and virtue thereof, and the Constitution and laws of this Commonwealth in such case made and provided, do grant, bargain and sell unto the said Charles Middleton, Allen Middleton, William de Cou, and Howard W. Middleton, executors of Allen Middleton, deceased, the tract or piece of land aforesaid.”</p> <p>And the habendum was in the following words, to wit: “To have and to hold all and singular the hereditaments and premises hereby granted, with the appurtenances, unto the said Charles Middleton, Allen Middleton, William De Cou, and Howard W. Middleton, executors of Allen Middleton, deceased, their successors and assigns, to and for their only proper use and behoof forever, according to the form, force and effect of the laws and usages of this Commonwealth in such case made and provided.”</p> <p>In the deed for the 83-acre tract from Sheriff Wright to plaintiffs the Ttli and 12fch courses are respectively described as south 60|° east, and north 37|° east, whereas in truth the said courses are south 6]-° east, and north 57|° east; the same error occurs in the fi. fa. and vend. ex. under which said tract was sold.</p> <p>On May 22, 1879 (the same day the fi. fa. issued under which the land was levied and condemned), a sei. fa. was issued to bring heirs of said John W. Middleton, deceased, and the following return made thereto, to wit: “Made known to Emma Kaighn and Alice Middleton, and nihil habet as to Anna Smallwood, Clara Paul, Richard A. Middleton, and Sarah Middleton, administratrix.” No further proceedings were had under this sci. fa., and no judgment was entered against said heirs.</p> <p>It is further agreed as a fact that the plaintiffs in this present cause were the plaintiffs in the execution upon which the said tracts of land were sold, and under which they purchased and to whom Sheriff Wright executed deeds therefor.</p> <p>The above-mentioned two sheriff’s deeds, together with the record and docket entries of said suit, were made part of this case stated.</p> <p>If the court should be of opinion that said deeds, with the proceedings resulting in the sheriff’s sale, vested in plaintiffs a good and marketable title in fee simple in said tracts of land, then judgment to be entered for plaintiffs for thirty thousand dollars, with interest from March 1, 1883, and costs (said judgment to he satisfied of record upon defendant paying the amount thereof, with costs, and plaintiffs giving him a deed in fee simple clear of all encumbrances for said tracts of land), otherwise judgment to be entered for defendant with costs.</p> <p>The court after argument filed the following opinion and judgment:</p> <p>“ The question raised in the case stated is whether the title to certain real estate is such as the purchaser is bound to accept. It appears that a judgment was obtained on February 26,1873, against a certain John W. Middleton. On Dec. 1877, a sci. fa. was issued against him to revive it; to this defendant pleaded payment, and issue was joined, which, at the time of his death, Dec. 1878, was pending and undetermined. On February 26, 1879, a sci. fa. was issued against Sarah Middleton, administratrix, which was not in form a sci. fa. to bring in the personal representatives, but a soi. fa. to revive, and on this a money judgment was taken. As the only prior judginent bore date in 1878, it was clearly too late for this process to revive it.</p> <p>“The most favorable construction on the proceeding is to regard it as intended to bring in the personal representatives, and to consider the judgment as valid against the administrator. This the plaintiff contends is all that can be required. That when there is a valid, unimpeached judgment existing at the death of the defendant, the bringing in of heirs by sci. fa. is not necessary: McMillan v. Red, 4 W. & S., 237. But can this judgment be so considered? Its revival was contested by the defendant, and his plea of payment on his death left undetermined. Was this not, in the words of the Act of 1834, “an action or legal proceeding depending” at the death of the defendant, and' was it not the duty of the plaintiff, if he wished to charge the lands, to bring in the heirs? They clearly have had no day in court. Their ancestor was resisting this claim in a proper legal forum to the day of his death, after which a judgment was entered against an administrator, and the only notice taken of the heirs was to sell their property under it. Certainly this is the'very evil the Act of 1834 was intended to prevent. Entertaining these views on the main objection to the title, we do not think it necessary to discuss the minor ones. The title, in oiir opinion, is not so free from doubt as to the rights of the heirs of John W. Middleton as to compel its acceptance.”</p> <p>“ Judgment for defendant on case stated, with costs.”</p> <p>■ The plaintiffs took this writ of error and filed the following specifications of errors:—</p> <p>1. The court below erred in not holding that the sci. fa. of 1879 was an abandonment of the sci. fa. of 1877.</p> <p>2. In holding that the sci. fa. of 1879 was a sci. fa. to bring in personal representatives, whereas it was in form and in fact a sci. fa. to revive and quare executionem non.</p> <p>3. In holding that the judgment of 1873 was not an unim peached judgment.</p> <p>4. In entering judgment on the case stated for defendants.</p> <p>5. In not entering judgment on the case stated for plain tiffs.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term, 1884, No. 176.</p> <p>Scire facias sur mortgage by Charles E. Henry, administrator d. b. n. o. t. a. of Giles S. Musson, deceased, who was the assignee, etc., etc., against Morris Brown, terre tenant of John School and Charles Faurest.</p> <p>At the trial, before Ludlow, P. J., the following facts were proven: John School and Charles Faurest executed a bond and indenture of mortgage dated March 30, 1850, to Joseph Swift for $2,375, secured on premises now 1117 Lombard Street, in the city of Philadelphia, and recorded in mortgage book G. W. C. No. 15, page 543. By two assignments duly executed and recorded the title to this mortgage, through Benjamin Bullock, became vested in Giles S. Musson on May 19, 1852. Giles S. Musson being a resident of Antigua, one of the Leeward [stands belonging to Great Britain, the interest on the mortgage was paid to James J. Barclay, who collected it as Mr. Musson’s agent and attorney in this country. Giles S. Musson died in 1855, and by his will, proved in Antigua, he gave his Pennsylvania mortgages to his wife for life with remainder to his daughter. The widow died in 1881, and letters of administration d. b. n. c. t. a., on the estate of Giles $. Musson, deceased, were granted on June 8, 1881, by the register of Philadelphia county, to Charles E. Henry, defendant in error. Mr. Barclay continued to collect the interest until 1868, at which time he first heard of Mr. Musson’s death, and he believed his authority at an end. The mortgage papers remained in his possession until 1881, when he delivered them to said Charles E. Henry, the administrator.</p> <p>The said John School and Charles E. Faurest, at the same time they executed the first mortgage, executed three other indentures of mortgage to said Joseph Swift, which were all duly acknowledged and recorded the same day in said mortgage book G. W. C. No. 15, pages 541, 544, 546, each given for $2,375, and secured upon premises situate on the north side of Lombard Street, immediately adjoining those secured by the Musson mortgage. On June 17, 1858, the title to these three mortgages by two assignments duly executed and recorded, became vested in Horace Binney, Jr., administrator, d. b. n. c. t. a. of William S. Bell, deceased.</p> <p>On April 15, 1867, Horace Binney, Jr., appeared before the recorder of deeds to satisfy one of said three mortgages, it being secured on the property adjoining and to the east of the property secured by the Musson mortgage; and being recorded in said mortgage book G. W. C. 15, page 544, etc., the 'next consecutive page to the Musson mortgage. By an accident, or by the negligence of himself and the recorder, Horace Binney, Jr., satisfied the record of the Musson mortgage instead of that of the one held by him.</p> <p>In April, 1872, Morris Brown bought the premises covered by the Musson mortgage, 1117 Lombard Street, for $4,500, clear of all incumbrances, being a full price for the same. He employed Passmore Williamson, a well-known conveyancer, who testified that he had searches made by the proper officers for incumbrances, and he produced a certificate from the recorder of deeds that there were no unsatisfied mortgages on the premises, and further, that he had taken every precaution known to the profession of conveyancers in Philadelphia to satisfy himself that the land was clear, and that he had no knowledge or suspicion whatever of the existence of this mortgage until about the time this suit was brought.</p> <p>The plaintiff submitted, inter alia, the following points:</p> <p>“ That the mistake of Horace Binney, Jr., in entering satisfaction on the margin of the record of plaintiff’s mortgage is not such a satisfaction of the mortgage within the meaning of the Act of Assembly, but that such satisfaction stands as a nullity against plaintiff’s right to recover on his. mortgage, and therefore the verdict should be for the plaintiff.” Affirmed.</p> <p>“ That the error in entering satisfaction on the margin of the record of plaintiff’s mortgage does not discharge the real estate bound thereby from the lien of the same, and the verdict should be for the plaintiff.” Affirmed.</p> <p>The defendant submitted, inter alia, the following point:—</p> <p>“If the jury find from the evidence that the terre tenant was a bona fide purchaser for value, without notice of the mortgage sued on, and paid purchase-money, interest on and cash on account of purchase-money mortgage, on the faith founded upon clear mortgage-searches, and the advice of a competent conveyancer that he was getting the premises free of incumbrance, the delay of the holders of the mortgage to make any claim for the principal or interest for over twelve years, entitles the terre tenant to a verdict in his favor.” Refused.</p> <p>The court directed the jury to find a verdict for the plaintiff for the whole amount of the mortgage and interest claimed thereon. Verdict and judgment for the plaintiff for the sum of 04,457.12. The defendant thereupon took this writ, assigning for error the affirmation of plaintiff’s points, the refusal of defendant’s, and the direction of the court that the jury find for plaintiff for the mortgage debt and interest.</p>

<p>Appeal from a decree of the Orphans’ Court of Philadelphia County: Of January Term, 1884, No. 177.</p> <p>This was an appeal by Henry C. Townsend and Edward Hartshorne, executors and residuary legatees of Buhamah Calhoon, deceased, from a decree of the said court, ordering the said executors to pay the sum of $1,812.94 interest on a certain legacy from the date of the decedent’s death to the trustee for the legatee, and further ordering that in default of such payment, within twenty days, a levari facias should issue against the realty belonging to the residuary estate.</p> <p>The facts were as follows: Bahumah Calhoon died October 17, 1880. By her last will she directed her executors to sell all of her real estate and out of tho proceeds of such sale and of her personal property to pay to Henry C. Townsend and the Fidelity Insurance, Trust and Safe Deposit Company the sum of $24,000, in trust to invest the same and apply its income to “the maintenance, education and support of George Ireland, Benjamin C. Ireland, Thomas M. Ireland, and Elizabeth H. Ireland, children of my deceased niece, Elizabeth Calhoon, wife of Edward Ireland, in equal shares and proportions for and during their natural lives,” with the remainder to the children of such cestuis que trustent. The testatrix after further providing that the executors could pay said legacies in their discretion either in cash or by transferring to the trustees securities belonging to her estate, appointed Henry C. Townsend and Edward Hartshorne as her executors, and devised to them her entire residuary estate.</p> <p>The executors duly hied their account of the personal estate. On the audit of the same, a balance of some $50,000 was found in their hands for distribution, out of which there was awarded to the said trustees for the Ireland children the sum of $24,000, less the collateral inheritance tax. Payment of the other legacies was awarded, and after the payment of these legacies and of the debts of the estate, a balance of said personalty amounting to $49.70 was awarded to the residuary legatees. Upon the confirmation of this adjudication, the executors, in payment of the legacy to the Ireland children, transferred to their trustees' four interest bearing mortgages of equal value with the legacy. On these mortgages, interest had accrued since the death of the decedent amounting to about $1,500, and this interest had been included by the executors in their balance for distribution. The Ireland children, claiming that their legacy bore interest from the death of the decedent, and that this interest therefore belonged to them, filed a bill of review in the Orphans’ Court to re-open the said adjudication, but this bill was dismissed “ without prejudice ” to the petitioners in another proceeding. The said legatees then filed a petition for a citation to the executors to file an account of the proceeds of the real estate, of which the testatrix had died seised, and which by her will she had directed to be sold for the payment of the legacies, without averring, however, an actual sale of testatrix’ real estate. The executors filed an answer in which they alleged that by reason of the adjudication of their account, and the confirmation of such adjudication, and also by reason of the dismissal of petitioner’s bill of review, the matter was res adjudícala, and the petitioners were concluded; that in view of the facts that the petitioners were only distantly related to the testatrix, that the youngest of them attained full age within one month after the death of the testatrix, and that they had a father living, it could not be assumed that the testatrix intended to give the petitioners interest on their legacy from the date of her death; that they, the executors, had not sold the real estate as directed by the will, for the reason that the personal estate having proved sufficient to pay all the debts and charges upon the estate, the real estate of decedent belonged under said will to the residuary legatees, who had elected to take it as land.</p> <p>On the hearing of this petition and answer, the prayer of the former was amended, by leave of court, so as to pray for an order on the executors to sell the said real estate and account for the proceeds.</p> <p>The court, after argument, decreed that the petitioners were entitled to the interest on their legacy from the death of the decedent, that said interest, amounting to $1,812.94, was a charge upon the real estate in the hands of the residuary legatees, and that, in default of payment thereof to the trustees for such legatees within twenty days, a levari facias should issue against the said real estate. Hanna, P. J., delivered the following opinion:</p> <p>After a careful reading of the will, we do not doubt that in this instance, there is an exception to the general rule, that ¡i legacy of a gross sum only carries interest from one year after the death. The intention of testatrix to provide “ maintenance ” and “education” for the children of her deceased niece, could not be more unmistakable, and where this clearly appears, interest is allowed from the death, otherwise, the object and purpose of testatrix will be delayed, and perhaps defeated. Nor is it of any moment that the beneficiaries are so remote. There is nothing in the law preventing a testator from providing for the maintenance and education of strangers to his blood, and if that intention is accurately and unequivocally expressed, bis intention will be respected. Nor need the beneficiaries be minors only — adults are often as helpless, necessitous, and uneducated as those under lawful age, and equally appeal to the sympathy and generosity of the benevolent. They too should be cared for as intended by the bountiful, if that intention be clearly manifest, so that it is frequently a mere question of intention. Here the intention is clear, that the legatees should immediately upon the death of testatrix enjoy the means she provided for their education and support, and not be postponed one year, and perhaps, until the end of the second year. These view’s, we think, are fully sustained by tlie authorities: Hilyard’s Estate, 5 Watts & S., 30; Eyre v. Golding, 5 Binney, 472; Bird’s Estate, 2 Parsons, 168; Sergeant’s Estate, 9 Phila. Re])., 346; Keech v. Speakman, 1 Clark, 72; Steiner’s Estate, 13 Phila. Rep., 358; where the subject was carefully considered by Ashman, J.</p> <p>The second question is, whether the distribution of the entire personal estate relieves the real estate from the payment of the balance due of the legacy. This does uot concern the executors, qua executors. As the entire estate is chargeable with the legacies, although the personalty is primarily liable, it is immaterial to them that the latter has been exhausted in the payment of some legacies, to the exclusion of others, or in the partial payment of legacies. It directly affects, however, the residuary legatees, who have elected to take the land as land. This they had full authority to do, if they desired— and although by the terms of the will an equitable conversion took place,’ yet it is also well recognized as a rule in equity, that land not necessary to be sold for the purposes of the wiil, in this case the payment of debts and legacies, still remains land, and as such will go to the heir or residuary legatee: Hilton v. Hilton, 2 MacArthur, 88 (Sup. Ct. D. C.). The residuary legatees having taken the land subject to the lien of the legacies, therefore cannot complain at being required to pay any deficiency of the personal estate. They are only entitled to that which remains after all other claims upon the estate are paid in full.</p> <p>' Townsend and Hartshorne thereupon took this appeal, assigning for error the entry of the said decree.</p>

<p>1. A bill of interpleader cannot be maintained by a plaintiff, alleging himself to be a stakeholder, where it appears, at any stage of the cause, that there is a substantial controversy between the plaintiff and the defendants in regal'd to the extent of the plaintiff's liability, or the amount oí his indebtedness. He cannot bring the defendant's into a court of equity to settle a dispute with himself under the pretence of compelling them to settle one between themselves.</p> <p>2. A. filed a hill of interpleader against B. O. and D., alleging that he owed B. a certain sum of money, overdue, but without interest, thereon, which was claimed by G. and 1).' The defendants in their answer averred that A. also owed interest on said sum. The Examine]- and Master to whom the cause was referred reported, as a fact, that A. did not owe said interest, and, as matter of law, that he was entitled to maintain the bill.</p> <p>Held, thatthe controversy as to plaintiff’s liability for interest was such as to preclude Mm from, maintaining a bill for interpleader.</p>

<p>1. It is unlawful for the general partners in a limited partnership, organized under the Act of March 21, 1836 (P. L., 113), to assume, without any consideration, the debt created by the special partner in procuring the money which he pays into the firm as his special contribution.</p> <p>2. In a limited partnership formed under said Act, the general partners gave judgment notos to the individual creditors of the special partner, for the money furnished Mm by said creditors for Ms special contribution to the firm. Upon the insolvency of the firm these notes were entered up and executions issued thereon were levied on the firm assets.</p> <p>Hold, that the judgments and executions on said notes were void as against general creditors of the firm, not only because they were without consideration, but because they were against public policy, and in contravention of the Act of March 21, 1836.</p> <p>3. Under said Act the special contribution is a fund, appropriated by law to the payment of partnership debts, which cannot be withdrawn or diverted, either directly or indirectly, to the detriment of firm creditors.</p>

821. Appeal by James E. Gowen, trustee, from a decree of said court, dismissing exceptions filed by said trustee to the report of an auditor, appointed to audit and settle his accounts and to report distribution of the fund in his hands as executor and trustee under the last will and testament of Thomas Mellon deceased.

■ Error to the Court of Common Pleas No. 3, of Philadelphia county: Of January Term, 1884, No. 172: This was an action of debt, brought July 30, 1883, by Mary Jane Hackett, executrix of Joseph Hackett, deceased, against David R. Carnell, upon the following instrument of writing, a copy of which was filed by the plaintiff: Joseph Hackett and Mary Jane N Hackett vs. > George W. Ward and William H. Hood. Before William H. List, Magistrate of Court No. 5.

2, of Philadelphia county: Of January Term, 1884, No. 228. This was an amicable action by J. Dundas Lippincott, surviving executor and trustee tinder the will of James Dundas, deceased, against The Philadelphia Trust, Safe Deposit and Insurance Company, trustee under the will of William Richardson, deceased. The parties submitted the following case stated for the judgment of the court as upon a special verdict: 1.

<p>1. A testator directed by Ms will that Ms executors should “ collect and pay all the income arising from my estate both real and personal to my wife during the period of her life,” with remainder to his children and their children, fie empowered Ms executors to sell Ms 1 ‘ real estate ” but directed them “to exercise their own judgment as to the propriety of selling or leasing said estate.” The said real estate, of which he died seised jointly with two other owners, was chiefly valuable for coal mining purposes, but had never been mined or developed during the testator’s life time. The executors leased the coal lying thereunder. Held,</p> <p>(1) That the power to lease the real estate contained in said will included by implication a power to lease the coal lying under its surface.</p> <p>(2) That the rents or royalties arising from such lease were income, and as such payable to the widow, the life tenant.</p> <p>2. A testator died, leaving surviving Mm a widow, a son, a daughter, and a brother. Ilis will provided that his executors should “collect and pay all the income arising from my estate, both real and personal (except as hereinafter stated), to my said wife during the period of her life,” and then continued: “ Subject to what I have bequeathed to my wife, I will and bequeath all my estate, real and personal, to my children, share and share alike as hereinafter stated and particularly mentioned.” He then directed that his executors should hold his daughters “ share ” in trust to “ pay after the widow’s decease the interest and income of said share to my said daughter, half yearly, during the period of her life and then, at her decease, I direct my executors to pay the principal sum of her share of my estate left in trust to any child or children of hers, that she, my said daughter, may leave surviving her at her death, their heirs and assigns ; but in case my said daughter should not leave any child or children, then I will and bequeath the same, at her death, to her brother.”.....“In case my son should depart this life before he is tweniy-one years of age, then in that event, should he not leave any child or children of his him surviving at his death, his share is to go to his sister, to be held in trust by my Executors as her share is hereinbefore held as stated; but should he leave a child or children of his him surviving at his death, then said share is to go to said child or children, his, her or their heirs and assigns, subject as herein-before stated.”.....“ Should the survivor of my children die without leaving any child or children of his or her, him or her surviving at his or her death, then my will is that my estate go to my brother, T. H. W., his heirs and assigns, subject to the right of the wife as herein stated.”</p> <p>The son, after attaining his majority, died in the life time of his sister intestate, unmarried and without issue.</p> <p>Held, That under the will the children each took a fee, and not a life estate, in a moiety of the decedent’s real estate, subject only to be defeated by their dying without children; that the only contingencies in which the executory limitations to the testator’s brother could take effect were in thé event either of the son’s dying childless during his minority after the death of his sister without children, or of the son’s dying childless during his minority and the subsequent death of the daughter without children; that therefore upon the son’s attaining his majority his fee became absolute and indefeasible and passed upon his death intestate and without children to the daughter under the Intestate laws and not under the will; that, thereupon, the executory limitation to testator’s brother was defeated, and an absolute and indefeasible fee to both moieties of the testator’s real estate vested in the daughter, subject only to the widow’s life estate.</p> <p>Held therefore, that testator’s brother had no standing to object to a proposed distribution to the widow of the income arising from such real estate.</p>

<p>Error to the Court of Common Pleas Nó. 2, of Philadelphia county. In equity: Of January Term, 1884, No. 188.</p> <p>Bill in equity, between John Hill, complainant, and Henry W. Earnest and Mary Ann Earnest his wife, defendants, praying for a decree that the defendants execute a conveyance of the legal title of certain premises to complainant. The bill averred, inter alia, that on May 14, 1862, tlie complainant bought a house and lot, No. 804 South Tenth street, in the city of Philadelphia, for which he paid $4,300, of his own money, and had the deed made in the name of his wife Elizabeth, it being understood and agreed between himself and liis wife that she should hold the same in trust for him, and should by deed or will vest the legal title in him or in a purchaser from him, at his request. That Mrs. Hill, without having executed such conveyance, died in 1875, intestate and without issue, leaving to survive her, her husband, the complainant, and one sister, Mary Ann Earnest, wife of Henry W. Earnest, the defendants. That the defendants had, upon request by complainant, refused to convey to the complainant the legal title in said premises; and the bill prayed that they be required so to do.</p> <p>The answer admitted the above facts stated in the bill, other than the alleged trust, which the defendants denied.</p> <p>The cause was referred to an examiner, and subsequently to a Master (Hampton L. Carson, Esq.), who, after finding, in detail, the undisputed facts, reported as follows upon those which were disputed :</p> <p>It was alleged by the complainant’s counsel that Mrs. Hill knew of the object of the conveyance, and assented to it; that it was not a gift to her, but that she considered herself a trustee for her husband, and had agreed to convey or will it according to liis directions. Mr. Hill testified to conversations with his wife, some of them at or about the time of the purchase, and one of them at the time of the purchase, in which lie said: “ I am going to put the property in your name with the understanding that it would revert to mo after your death. She agreed to that. It was consummated in that way.” The force of his testimony is broken by that of Mrs. Earnest, who testified to conversations with him in which he said: “ All he had in it was a life estate, and when it came into my hands it should be clean and clear......He always stuck to it that the house belonged to my sister......He always said that he had nothing more than a life estate in it.” Again Mrs.. Earnest says: “Mr. Hill said: ‘Sis, I have bought this Louse for Liz, and gave it to her as her own.’ I said, ‘Liz, is that so ? ’ She said, ‘ Yes.’ I said, ‘ Won’t you show me the deeds ? ’ and she did.</p> <p>■ If these facts be true, they are so inconsistent with those stated by Mr. Hill as to deprive his testimony of value. Mr. Hill was not called in rebuttal.</p> <p>As Mr. Hill and Mrs. Earnest are interested parties to this suit, and their testimony is contradictory, the Master strikes them both from the list of witnesses.</p> <p>Thomas Brennan testified to admissions made by Mrs. Hill, while Joseph T. Richards testified to admissions by Mr. Hill. It was said in argument that Mr. Brennan was tainted by self-interest as a creditor of Hill, with no hope of payment save that of Hill’s success in this suit, while Richards had an interest as the son-in-law of the defendants. The Master, does not believe that interest influenced them in any appreciable degree, but as one testified to conversations as old as 1867, and therefore to be received with caution, and the other was not very clear in his recollection of the exact words used in 1876, they in effect neutralize each other; and they also may be stricken from the list of witnesses.</p> <p>We are then-thrown back upon the evidence of White and Fuller, both of whom were entirely without bias of any kind. White was objected to as a witness to conversations with Mrs. Hill under the exception to the Act of 1869, the assignor of the thing or contract in action being dead. The Master rules that the Act onfy applies to parties in interest or to those claiming through the deceased party.</p> <p>As Mr. White does not occupy either relation, he is competent; the same ruling applies to Mr. Fuller. Mr. White testified to a conversation with Mrs. Hill in 1870, or ’71 at the time Mr. Hill was lying dangerously ill. She expressed uneasiness about the property, and was assured by White that she need not feel troubled, as she held the title and the position would not be changed. “ As near as I can recollect she said, ‘This is Mr. Hill’s property, and I didn’t know but what it might go to some of his heirs.’ She spoke of a brother of Mr. Hill towards whom she did not seem to have a kindly feeling. I assured her there would be no difSculty about that, as the title was in her and would be safe enough. That seemed to satisfy her, and she was more calm and contented.” This is evidence of an uneasy mental condition, possibly arising from a knowledge that the property was not absolutely hers, but it is not very clear or conclusive upon the point in dispute. On this conversation the witness was not cross-examined.</p> <p>Mr. Fuller said: “ I conversed with her three times upon the subject. I don’t think she expressed herself except to say that it would be a good thing for John to buy it, as he would have something to support himself when he got out of employment or become disabled.”</p> <p>Q. “Was it your impression, from what she said, that she regarded herself as the absolute owner of the property?”</p> <p>A. “ No; as a sort of trustee, though she did not use that word.”</p> <p>Though the question was not objected to, the Master does not consider this testimony of much value standing alone. The impressions of a witness are inadmissible, and the exact words of Mrs. Hill which induced Fuller to use the word “ trustee ” are not given. On cross-examination it was said that “all these conversations were before the purchase of the house. One was just before; just as they were closing the bargain.”</p> <p>Mrs. Hill died without ever having conveyed the property and without a will. Nor did Mr. Hill ever request his wife either to convey or incumber it for his benefit or her own. It was alleged that she was insane and therefore disabled from making a deed or will. It is clear that she was peculiar, having suffered from paralysis in 1859. ; . . . . The Master is not satisfied that her peculiarities amounted to such a degree of insanity as to disable her from executing a legal instrument. .....The question is not important, however, for, if a trust be established, equity would not permit it to fail through the insanity or recalcitrancy of the trustee.</p> <p>Mr. Hill abstained for many years from all interference with the property. He neither collected the rents, nor made any effort, except on one occasion, to lease the property, which he knew was standing idle. He did not pay the taxes, but permitted his wife to do so. Subsequent to the purchase of the house, and during the short period that he lived with his wife at the house as a home, he gave her large sums of money. When they separated they remained apart for years, she at boarding, he at Mrs. Clifton’s, the house of her mother. His conduct may be explained in part by these circumstances. After his wife’s death, in October, 1875, he entered into possession, paid three years’ arrears of taxes, rented the property, took the title papers and is now receiving the rents. He did not communicate his claim to the defendants, and did not file his bill until December II,, 1879.</p> <p>The Master, after a review of the authorities, showing that “ the legal presumption is against the complainant, and it will require strong proof to rebut it,” reported as follows :</p> <p>Apply these principles to the ease in hand. The Master cannot overlook the fact that, though all objections to the competency of John Hill were withdrawn on the condition of the admission of Mrs. Earnest as a witness, yet under the grave view of such a case taken by the court in Buchanan v. Streeper, 11 W. N. C., 434, his testimony is to be weighed with the utmost care. It is not clear, in point of time, when the conversations testified to by Hill occurred. It would seem that for some time he had had a certain house in view that he wished to buy, and on a certain day, having drawn from White about ($>6,000) six thousand dollars, he sent for Mr. Callan, the owner, and, after some little talk, “bought the house.” “I paid forty-three hundred dollars. I left the money in his presence with my wife, to pay him......I ordered the deed to be made in my name.” This evidently was all on the same day when the bargain was closed. After dinner, presumably on that day, he bought a horse and wagon, and took his friends, Fuller and White, to drive, who gave him the advice already considered. A change of intention was the result, for he subsequently states “the title was put in my wife’s name, by my consent, after explanations from my conveyancer, who said she could not convey without my signature.” When did this take place? There is nothing to guide us in determining whether it was a day or a month previous to the day of settlement and delivery of the deed; but it is clear that it did not occur on the day of settlement, for on cross-examination he says, “I gave my wife the money she paid for it; I was not at home at the time of payment.” Mr. Hill then testified to conversations with his wife about the property, in which it was understood that the property was to be his at her death. These conversations took place at or about the time of the purchase. There was one conversation previous to the purchase. At the time of making the purchase, I said, “ I am going to put the property in your name, with the understanding that it would revert to me after your death. She agreed to that.” This is far from being’ clear, satisfactory, or consistent. The word “purchase ” is doubtful in meaning. It does not mark the time. It cannot mean day of settlement, for he says he was not at home at that time. It cannot mean the day of execution of the deed, for there is no intimation that the deed was prepared and held for examination, or that the conversation with Mrs. Hill took place in the presence of the conveyancer. If it means, as is most probable, the day on which the bargain was struck with Callan, when he says, “I bought the house,” then it contradicts his previous testimony that he ordered the deed to be made in his own name, and that it was not until after conversation -with his friends, and subsequently with his conveyancer, that his change of mind took place. This conflict or obscurity of statement may be explained by referring all these conversations to different days and times; nor is it to be wondered at that Mr. Hill’s recollection should be confused, as lie is detailing conversations which occurred about eighteen years before, but it certainly does not meet the requirements of proof indicated by Rearick’s Exrs. v. Rearick, nt supra, nor is it, in the language of Buchanan v. Streeper, “ full, clear, and convincing.”</p> <p>Mrs. Earnest’s testimony to admissions made by Hill, contrary to his own interest, still further shake confidence in it, and the Master has already ruled that both witnesses may, for the practical purposes of decision, be considered as destructive of each other. What other testimony is there in the causo ? The only conversation that Mr. White ever had with Mrs. Hill was ten years after the deed had been put in her name, and this would be admissible only in corroboration of prior arrangements at the time of the execution of the deed previously established by proof. The same is true of Brennan’s testimony, even if its force were not neutralized by that of Mr. Richards. In order then to ascertain what took place at the time the deed was executed and delivered we are limited to tlio testimony of Fuller. There is “ the pinch of the case.” Mr. Fuller said he had had three conversations with Mrs. Hill, all of them were before the “ purchase ” of the house. One was some months before, and one was “just as they were closing the bargain.” These words do not fix the time; they may mean the day of settlement, or they may mean, as is most probable, the day when Hill closed with Callan. This was the day on which Fuller went to see the house, and came back with Hill and had a conversation with Mrs. Hill, in which Fuller, not Mrs. Hill, said, “It would be a saving fund for him.” It does not appear that in any of the three conversations she said anything that could be relied on with safety, nor does the aggregate of what she said at all times weigh heavily on the scale. Fuller says: “I don’t think she expressed herself except to say that it would be a good thing for John to buy it as lie would have something to support himself when lie got out of employment or became disabled.” Then followed a question of doubtful propriety: “Was it your impression from what she said that she regarded herself as the absolute owner of the property?” A. “No, as a sort of trustee, though she did not use that word.” This answer may mean much or little, but as long as Mrs. Hill’s words are not given, and as all the conversations recalled are eighteen years old, the Master cannot rely upon this evidence as of value. The residuum of the analysis is the impression of a witness which is undoubtedly insufficient to sustain a resulting trust. How can it be said that the testimony is “full, clear and convincing? ”</p> <p>The case is full of hardship ; it is true, the defendants are mere volunteers, and through the misfortune of Mrs.' Hill’s inability or unwillingness to make a will, are enabled to enjoy tbe fruits of Mr. Hill’s hard toil, and to deprive him of that which he earned at the risk of his. life or liberty. Hardships, however, are not sufficient to abrogate well-established rules of law, intended to guard the muniments of title to real estate or to check the designs of artifice and fraud. The bill is dismissed ; the costs are to be divided between the parties.</p> <p>, The complainant filed, inter alia, the following exceptions to the Master’s report:</p> <p>1. Because the Master has erred in finding that the complainant’s equitable title to the real estate in question was not sufficiently established by the evidence.</p> <p>8. Because the Master has found the presumption of gift to the wife arising from the title being taken in her name, must be rebutted by the same measure of evidence as that required to establish the fact of payment by the husband.</p> <p>9. Because the finding is against the law.</p> <p>After argument these exceptions were sustained by the court, in the following opinion by Mitchell, J.:</p> <p>The- Master having found all the facts substantially in complainant’s favor, and having stated the law with clearness and accuracy, nevertheless felt himself constrained to report a decree against the prayer of the bill, because “the legal presumption is against the complainant, and it will require strong proof to rebut it,” and he did not find the proof sufficiently “strong, full, and convincing,” for that purpose.</p> <p>In this conclusion we are unable to concur. The presumption of a gift under the circumstances is merely a presumption of fact, which is to prevail in the absence of evidence, or when the transaction is altogether unexplained. It raises a legal intent in the absence of evidence, but the actual intention may be gathered from the circumstances, and when it can be so gathered it must prevail. “Although a purchase in the name of a wife or child, if altogether unexplained, will be deemed a 'gift, yet you may take surrounding circumstances into consideration, so as to say that it is a trust, not a gift: ” Jessel, M. R., in Marshal v. Crutwell, L. R., 20 Equity Cases, 329. The presumption merely determines the burden of proof, and though, of course, the evidence must be .satisfactory, yet this case does not differ from any other in that respect. “Taking into view all the circumstances, as I understand I am bound to-do, as a juryman, I think,” etc.: Jessel, M. R., in case above cited.</p> <p>The cases in which it is said that proof must be “ strong,” “clear,” “convincing,” and the like, by which the learned Master felt himself controlled, are not in' conflict with the foregoing views if the language be considered in connection with the facts before the courts at the time. Thus, in McGinity v. McGinity, 13 P. F. S., 38, it was the cardinal fact whether or not the plaintiff’s money paid for the land that was in dispute, and it was in reference to that that Sharswood, J., says “ the evidence ought to be clear, explicit, and unequivocal.” So, in Buchanan v. Streeper, 11 W. N. C., 434, the language of Thayer, P. J., that the proof must be “ full, clear, and convincing,” has reference to the same thing. “ The evidence must go distinctly to the fact of payment.”</p> <p>Bearing in mind here that there is no question of fraud, no claim of creditors, nothing but the bare question of gift or resulting trust between the husband whose money admittedly paid for the house, and a volunteer heir of the wife, we see no reason to hold the complainant to any more stringent rule as to evidence than is always required of a plaintiff upon whom the presumption of law, from the pleadings, casts the burden of proof. Tried by this standard, we think complainant has established liis case. At the time of the purchase he has earned the money in his business, and proposes to buy himself a house. In view of his habits, the suggestion was made by his friend, and for his sake, that the title should be put in his wife’s name as a security for a provision for the future, to him as well as to her. In this suggestion he acquiesced, and it was carried out. Had the contingency, which has now arisen, been pointed out to him at the time, there is not the slightest doubt, on the evidence, that he would have expressed his real intention by providing for his own right as against any claims from his wife’s relatives. The conveyance to his wife was the means, not the end desired, and the wife having enjoyed the property during her life, it should now go to him freed from all claims by mere strangers.</p> <p>The first, eighth and ninth exceptions are sustained, and a decree may be drawn for a conveyance as prayed in the bill, with costs.</p> <p>A decree was entered, in accordance with the prayer of the bill, whereupon the defendants took this appeal, assigning for error the sustaining of said exceptions to the Master’s report, and the decree.</p>

<p>Error to the Court of Common Pleas of No. 1, of Philadelphia county: Of January Term, 1884, No. 191.</p> <p>This was an action on the case, by Mary O’Conner against Samuel S. Keely, to recover damages for injuries sustained by the plaintiff through the alleged negligence of defendant to provide a safe external fire-escape to his mill in conformity with the Act of June 11, 1879, P. L., 128. Plea, not guilty.</p> <p>The facts of the case are fully set forth in the opinion of this court.</p> <p>Verdict for the plaintiff for $8,000 and judgment thereon. The defendant took this writ of error, assigning as error the answers to his points, both of which are fully recited in the said opinion.</p>

<p>1. Where the lien of a confessed judgment was, by the terms of the bond and warrant, restricted to particular real estate of the defendant, and pending a controversy relating to the extent of the lion of a revival of said judgment, the parties, by way of compromise settlement, paid and received a certain sum of money, less than the face amount of the judgment, in full satisfaction thereof: Held that the judgment was extinguished, and could not subsequently be enforced, as to the balance, upon the plaintiff’s allegation that additional terms of the settlement, resting in parol, had not been complied with.</p> <p>2. A. held a judgment entered against B., on a bond with warrant of attorney, by the terms of which the judgment could only be collected from certain specified real estate. This judgment was subsequently revived, and A. issued a test. fi. fa. on the revival judgment against other property than that specified iu the bond. Pending a rule to show cause why execution should not be restricted to said specified property, the jjarties agreed upon a settlement by which a less sum than the amount of the judgment was paid in cash, and a receipt given, not under seal, in full satisfaction of the judgment. Subsequently A. issued another execution on the judgment, whereupon the court opened the judgment, and awarded a feigned issue, on the trial of which B. alleged that as one of the terms of settlement A. had promised to procure Mm a situation as superintendent of a coal breaker, and had failed to do so.</p> <p>Held that such alleged breach was no defence to the issue trying. The compromise settlement remaining unresoinded, the plaintiff had no right of action or execution on the judgment, which was by such compromise satisfied. His remedy, if any, was a suit for damages for breach of the alleged parol agreement.</p>

<p>Error to the Court of Common Pleas of Luzerne county: Of January Term, 1884, No. 28.</p> <p>This was, in the court below, an appeal from the judgment of an alderman, in favor of the plaintiff, in a suit by J. B. Sperring against the Laurel Run Building Association, to recover the value of certain shares of stock in said association. The defendant pleaded non assumpsit, payment with leave, etc., and the ease was referred to a referee under the Act of April 6, 1869, and supplements thereto.</p> <p>The referee (Geo. K. Powell, Esq.), reported, inter alia, as follows:—</p> <p>CONCLUSIONS OE EACT :</p> <p>First. — That the defendant is a Building Association chartered and organized under the provisions of the Act of Assembly approved the 12th day of April, 1859, and the supplements thereto.</p> <p>Second. — That in October, 1873, plaintiff purchased five shares, and in January, 1874, two shares, of the first series of stock of said Association, all of said seven shares having been issued in July, 1871, and held by other persons from whom they were transferred to said Sperring; he paying as many dollars as had been paid in. on each share, but having no knowledge of their previous ownership.</p> <p>Third. — That said plaintiff borrowed, at different times, from said Association, upon five shares of said stock and gave the seven shares of stock as collateral security for said loans.</p> <p>Fourth. — That judgments were entered of record' in the Court of Common Pleas of Luzerne county against James B. Sperring, said plaintiff, amounting in the aggregate to $1,000, and thus stood the record in February, 1877.</p> <p>Fifth. — That at a meeting of the stockholders of said Association held 6th February, 1877, the said Sperring and nearly or quite every other stockholder being present, a motion was made and carried “ that all stockholders pay in the sum of $20.20 on each share, and those in the first series who pay. $20.20 on each share between this date and May meeting shail be entitled to the amount of their stock at $116 per share.”</p> <p>Sixth. — That pursuant to said motion a charge of $141.40 was entered on the books of said Association against said Sperring, it being a charge of $20.20 on each share held by him.</p> <p>Seventh. — That the value of said Sperring’s two free shares as per said resolution was $232, which exceeded the said assessment of $141.40 by $90.60.</p> <p>Eighth. — That it was understood between the said Sperring and the said Association, that said Sperring’s seven shares of stock should be cancelled, and the said maturing value of the said two free shares ($232) should be applied, so far as needed, in payment of the said assessment.</p> <p>Ninth. — Pursuant to said understanding the secretary of the defendant Association informed plaintiff that there was a balance of about $90 due him, and subsequently the judgments against said plaintiff were satisfied of record.</p> <p>Tenth. — The secretary of the said Association defendant charged up on the books of the Association against plaintiff various amounts, called “ proportion of expenses,” as follows, viz.: September, 1878, $34.86 ; January, 1880, $26.49; April, 1880, $4.20; June, 1880, $2.80, and December, 1880, $6.30, aggregating $74.65, said amounts being apportioned upon seven shares of stock.</p> <p>Eleventh. — 6th July, 1881, plaintiff gave defendant notice of his withdrawal from said Association, and of his desire to have returned to him the moneys paid in by him and returnable to him as a withdrawing stockholder, and 8th August, 1881, instituted this suit.</p> <p>CONCLTJSIOSfS OF LAW:</p> <p>First. — The plaintiff, J. B. Sperring, having availed himself of the motion of 6th February, 1877, at or before the May meeting of 1877, he ceased to be a stockholder of the Association defendant, except so far as his claim for $90.60, the balance due him from the maturing value of his stock, gave him an interest.</p> <p>Second. — No assessment to cover expenses incurred subsequent to said May meeting of 1877, could be legally laid upon the said J. B. Sperring, as the holder of said seven shares of stock.</p> <p>Third. — The action of the stockholders of the Association defendant, as expressed in the motion passed 6th February, 1877, having been followed by the payment by said Sperring of the sum thereby charged against him, he, the said plaintiff, became entitled, at or before the meeting held 22d May, 1877, to demand and receive from said Association the sum of ninety and sixty-hundredths dollars.</p> <p>Fourth. — The notice of withdrawal given by plaintiff to the Association defendant, 6th July, 1881, was sufficient to entitle him to bring suit against defendant for whatever amount remained due and unpaid more than thirty days thereafter.</p> <p>Fifth. — Thh.Q plaintiff is entitled to judgment against defendant for $90.60 and interest as of 22d May, 1877, viz.: $121.55.</p> <p>The Prothonotary will therefore enter judgment in favor of the plaintiff and against the defendant for one hundred twenty-one and fifty-five-hundredths dollars, with interest from this date.</p> <p>The defendant filed, inter alia, the following exception to the referee’s report:—</p> <p>5. That the referee erred in not finding in favor of the defendant. The plaintiff not being such a withdrawing member as is contemplated by either the constitution or by-laws of the association or the Acts of Assembljn</p>

<p>Appeal from the Orphans’ Court of Luzerne county: Of January Term, 1884, No. 385.</p> <p>This was an appeal by Philip Peters from a decree of said court dismissing his exceptions to the report of audit and distribution in the matter of his account as administrator of the estate of his father John Peters, deceased.</p> <p>At the audit Daniel Bloss administrator of the estate of Rebecca Peters, deceased, late wife of John Peters, claimed to be awarded the sums of $583.30, and $150, respectively with interest. The auditing judge found as follows:—</p> <p>The decedent, John Peters, died on the 4th day of June, 1881, intestate, leaving to survive him no widow, but two children, viz: Philip Peters and Violetta, intermarried with Wesley Betterley, both of full age.</p> <p>The decedent was married three times, his second marriage being with Rebecca Fenstamacher, who died in spring of 1855, leaving to survive her a daughter, with John Peters, viz., Mary E. Peters, of whose estate the decedent was guardian. .....That of the estate of Rebecca Peters, former wife of decedent, Daniel Bloss is adminstrator. The fund for distribution arose from personal estate and amounts to $2,424.02.</p> <p>The history of the claim for $588.30, presented by Daniel Bloss, administrator of Eebeeca Peters, briefly stated is as follows: — On the 6th day of April, 1850, William Hess, father of Eebeeca Fenstamaeher, gave his note to his said daughter for $583.80 to cover interest in a certain farm of her husband, Fenstamaeher, which said farm was held by William Hess as trustee for said Fenstamaeher. The amount due on this note above stated was subsequently paid by William Hess in fall of the year 1851, to John Peters, this decedent, who continued to retain it up to the time of his death, and still remains unpaid. On examination of the records we find that letters of administration on the estate of Eebeeca Peters, deceased, were not taken out until 22d March, 1888. This claim is allowed with interest.</p> <p>As to the other claim for $150, by Daniel Bloss, administrator of Eebecca Peters. — From the evidence adduced we find that in the year 1851, G. W. Hess borrowed from Eebecca Peters the sum of $250, of which $100 was repaid to her in the year 1853, the balance, to wit, $150, was paid to John Peters, this decedent, in winter of 1857 and 1858, which has never been accounted for by liim to the parties entitled thereto. In this ease as in the one last preceding, the claim is allowed with interest.</p> <p>Exceptions filed by Philip Peters to the report of the auditing judge were dismissed, in an opinion filed, and the distribution, as reported, was confirmed. The exceptant took this appeal assigning for error the allowance of said claims.</p>

<p>Appeal from the Court of Common Pleas of Luzerne county: Of January Term, 1884, No. 426.</p> <p>This was an appeal by F. G. Black from an order of said court, directing that one half the costs incurred in a feigned issue awarded by the court, to test the ownership of certain money which had been attached in the hands of a garnishee, and paid into court, be paid by the plaintiff, and the other half be paid by the defendant. The verdict in said feigned issue was in favor of the defendant. •</p> <p>The facts of the ease are fully set foi'th in the opinion of the court below, Woodward, J., as follows:</p> <p>William M. Miller, the assignee of a judgment against George M. Black, issued an attachment execution thereon and summoned O’Boyle & Wandell as garnishees. On the 6th of December, 1881, the garnishees filed their answers to the. interrogatories directed to them by Miller, the plaintiff. In these answers and the affidavit filed at the same time, they state, in substance, that they have in their hands the sum of four hundred dollars, which they had supposed belonged to G. M. Black, the defendant, but that they' have received notice from Frederick O. Black that the money in question (the proceeds of the sale of a lot of cabbages) belongs to him and not to G. M. Black. They accordingly ask leave to pay the money into court.</p> <p>On the same day the court directed the garnishees to pay in the money, and thereupon granted a rule on W. M. Miller and Frederick Black, to appear in court on Monday, the 12th day of December, to show cause why an issue in the nature of an interpleader should not be framed between them, to determine the ownership of the fund.</p> <p>On the 12th December, 1881, the rule thus granted was made absolute, and if was further ordered as follows: “That said case be put at issue between said William M. Miller as plaintiff, and said Frederick G. Black as defendant, by the said plaintiff filing his declaration within fifteen days from this date, and serving a copy of the same on the said defendant, and thereupon defendants to plead within five days after such service, and serve a copy of the same on the plaintiff, who shall file his replication thereto within five days thereafter, and the issue thereby made shall be set down among the issues at the head of the trial list for next term.”</p> <p>The issue thus formed came on for trial at October Term, 1883, and resulted in a verdict in favor of Frederick G. Black, the defendant, who then filed his bill of costs amounting to $274.43. The plaintiff now asks to have this bill disavowed and set aside, on the ground that under all the circumstances of the case, it would be unjust and against equity to compel him to pay it.</p> <p>The Act of 10th April, 1848 (Pur., 643, pl. 48), commonly known as the Sheriff’s Interpleader Act, and originally applicable to the counties of Philadelphia and Luzerne, but subsequently extended throughout the Commonwealth, after providing the method in which issues are to be framed and tried, proceeds to say that it shall be the duty of the court “to exercise for the adjustment of such claim, and the relief and protection of the sheriff or other officer, all the powers and authorities necessary, and made such rules and decisions as shall appear to be just, under the circumstances of the case, and the costs of all such ¡proceedings shall he in the discretion of the court.”</p> <p>In the case of Mansley v. Moore, 1 W. N. C., 268, it was held, by the Court of Common Pleas of Philadelphia, that “where the execution’plaintiff has not been guilty of oppression, it would be a hardship to compel him to pay costs.” In Bank v. Emerson, 7 W. N. C., 392, the court announces the same doctrine in the following language: “ Costs against an unsuccessful defendant in a sheriff’s interpleader under the Act of 1848, are not of course, but are in the discretion of the court.” The rule which we have adopted is, to allow costs to a successful claimant where it is apparent that the defendant in the issue — the plaintiff in the execution — has. proceeded upon insufficient grounds, where he has caused the goods to be levied on, and persisted in the seizure under circumstances which afforded no adequate presumption that the title was in the defendant, .where his conduct has been characterized by-oppression or indifference to the rights of third persons. Where, on the contrary, the facts developed on the trial show that the creditor had good reason to believe that the goods were the goods of the defendant in the execution, as, for example, when they are found in his possession, under circumstances which give rise to a presumption of ownership, costs are not awarded against the defendant. We refer, also, to the case of Dewees v. Evans, 7 W. N. C., 573.</p> <p>It would seem clear from the language of the statute as well as from the adjudicated' cases to which we have referred, that the costs in interpleader cases, and in other feigned issues, do not necessarily and of course follow the- judgment, as in other civil actions, but that they are within the control of the court, who are to exercise a sound discretion according to the circumstances.</p> <p>In the present case, the fund in dispute was in the hands of third parties, who were made garnishees. These garnishees state under oath, that, up to the time of the service of the attachment, they supposed and believed that this money belonged to G. M. Black. And, upon the trial of the case in court, it was shown in behalf of the plaintiff, that G. M. Black had, at various times and to various parties, claimed to have been the real lessee of the premises, upon which the produce in question was grown, and that to one person he had said, that the lease was made in his son’s name for the reason that he himself could hold no property in his own name. It Was also proved, that to one witness he had stated that the particular sum of money in controversy belonged, and should be paid to himself. These facts, and many others to the same effect, were sworn to by the witnesses for the plaintiff, and while • they were controverted and denied by the defendant and his witnesses, they are recalled now, to show that the plaintiff was not without good reasons for supposing that the money upon which he laid his attachment belonged to G. M. Black, whose creditor he was.</p> <p>But while we are disposed to agree that the plaintiff has done nothing which was oppressive or unreasonable, we must not forget that the defendant had the verdict. The jury have found that the fund in court belonged not to G. M. Black, but to his son, Frederick G. Black, the claimant. To relieve the unsuccessful party from the payment of the costs, because there was probable cause for believing, as he did, that this money was the property of his debtor, and to put them upon the successful party, whose theory of the case has been adopted and approved by the verdict of the jury, would seem to be anomalous and arbitrary.</p> <p>The true view of the case would seem to be this. The issue was directed by the court, for the purpose of ascertaining the real ownership of the money in the hands of the garnishees. The witnesses who were sworn were called for the purpose of affording the necessary information on this question. A comprehensive view of all the testimony results in the conviction that, while the plaintiff had abundant reason for believing that the fund was the property of his debtor, it was, in point of fact, as legally ascertained by the jury, the money of another. Under these circumstances it seems to us equitable, that the costs and expenses should not be borne exclusively by either party, but should be divided equally between them.</p> <p>It is therefore ordered that one half the costs, including the witness fees on both sides, be paid by the plaintiff, and that the other half thereof be paid by the defendant, and the rule is discharged.</p> <p>The defendant took this appeal, assigning for error the said order.</p>

<p>Appeal from the Court of Common Pleas of Luzerne county: In Equity: Of July Term, 1883, No. 75.</p> <p>This was an appeal by John T. Everhart from a decree of said court sustaining a bill in equity filed by James M. Ever-hart against John T. Everhart, his brother, and requiring the defendant to pay to the plaintiff the sum of $37,878.27, with interest, and to transfer to him 1666 shares of stock of the Everhart Coal Company, of the par value of $12.50 per share.</p> <p>The bill, filed June 23, 1874, set forth, in substance, that in the year 1853 the plaintiff and the defendant entered into a partnership, at Pittston, Pa., for the purpose of carrying on a farm, and for buying and selling lands in Luzerne and other adjoining counties, the terms of the partnership agreement being that the plaintiff should superintend and direct the farm aforesaid, and do such other business as occasion might require connected with the partnership, and receive one half part of all profits realized and accruing out of said business of farming and buying and selling lands, and share one half the losses that might accrue, and that the business should be conducted in the name of John T. Everhart; that since that time up to about two years ago, the plaintiff has faithfully performed and attended to all his share and portion of the said business ; that large purchases and sales have been made and large profits have accrued from such sales, and from the proceeds of the farm aforesaid, most of which have been paid to and absorbed by the said John T. Everhart; that among the lands thus bought and some of which have been sold, are the following tracts. (Here the plaintiff named each tract, and the number of acres contained therein.) That no settlement or adjustment of said business has ever been made between the plaintiff and the said John T. Everhart, although the said John T. Everhart has been often requested and hath often promised the plaintiff to make such settlement and adjustment; that the plaintiff firmly believes the said John T. Ever-hart does not intend to settle with or pay this plaintiff the several sums of money due him.</p> <p>The prayer of the bill was: “ That a decree of this honorable court may be made, compelling the said John T. Everhart to account to and with your orator for the profits and losses of the said business thus carried on since the year 1853, and pay over to your orator one half part of the net profits and gains arising from said business, and to convey to your orator one half part of the lands remaining unsold.”</p> <p>A demurrer to the bill was overruled, whereupon the defendant filed the following answer:—</p> <p>1. In answer to the bill of complaint filed in this case, I, John T. Everhart, the defendant, say as follows, viz: I deny that any contract of partnership such as set forth in the first paragraph of complainant’s bill was ever legally made between us.</p> <p>2. I have bought and sold lands during the time mentioned in the bill, but solely on my own account, and not on account of complainant, and I expressly deny that he has any right, title or interest therein, whereby he can legally call upon me to account to him for the same.</p> <p>The cause was referred to a Master (G. R. Bedford, Esq.), who, in his report, after commenting upon the terms of the above answer, reported that “ the preponderance of evidence is in favor of the plaintiff and establishes the truth of the allegations of the bill, providing the evidence be admissible.” He further reported that, the testimony relating to the partnership rested wholly in parol, and, the defendant having interposed the objection of the Statute of Frauds the plaintiff could not enforce the same generally as to interests in lands purchased; that, however, in the case of certain lands purchased under the partnership and sold to the Everhart Coal Company, the defendant had by his declarations subsequently to said sale, acknowledged the plaintiffs right to share in the profits, and agreed to pay over his share. The Master reported that as to such converted proceeds the Statute of Frauds did not apply, and the plaintiff was entitled to ail account of said sales and profits. Also that the plaintiff was entitled to an account of the farming operations, as the partnership agreement relating thereto did not involve the title to land.</p> <p>Exceptions filed by the defendant to the Master’s report were dismissed by the court (Handley, P. J.) and the cause having been referred back to the Master to state an account, he filed a supplemental report showing the sum of $12,494,52 to be due by defendant to plaintiff on the farm account; and also, 1666 shares of the capital stock of the Everhart Coal Company of the par value of $12.50 per share, as representing the plaintiff’s share of the stock received by defendant on sale of said lands to the Everhart Coal Company. The Master did not include, in the account stated, any share of the cash received by defendant on said sale.</p> <p>Both parties filed exceptions to the supplemental report, and it was referred back to the Master by the court (Woodward, J.,) with instructions to include in the account the plaintiff’s share of said cash proceeds.</p> <p>The defendant then moved (1) that the Master be directed, upon said recommitment “to take into consideration and report on all the evidence presented before him by both parties, and restate-his account accordingly. (2) For leave to amend his answer by interposing the Statute of Limitations with the same effect as it originally pleaded.</p> <p>The Master afterwards filed a second supplemental report, whereby in addition to the cash sum found due- the plaintiff by the original'report, the further sum of $25,384.75 was reported to be due as the plaintiff’s share of said cash proceeds, with interest to December 15, 1881.</p> <p>The defendant filed with the Master exceptions to said supplemental report, which the Master dismissed, saying: “ The joarties have already been fully heard both before the court and the Master, and the duties of the latter under this reference are simply ministerial. The first suggestion of a defence in analogy to the statute of limitations was made on the argument. It was not raised by plea, by objections to the admissions of testimony, nor by exceptions to my report stating the account. It cannot be considered now.”</p> <p>On March 12, 1883, the court (Woodward, J.,) filed orders dismissing the two motions of defendant as above and entered a decree as reported by the Master in his second supplemental report.</p> <p>The defendant then moved to strike off said decree, on the ground that it was prematurely and irregularly entered. The court dismissed this motion, Woodward, J. saying, in an opinion filed:</p> <p>“ We are now asked to hold, that the Master erred in making his supplemental report, while the motions of 2d October, 1882, were pending. It does not appear however, that any order staying the proceedings of the Master unti] these motions were disposed of was ever granted or asked for, or that he had any notice whatever of their existence in the case; nor, as we said before, does it appear, that the defendant’s exceptions to the Master’s supplemental report, made any reference to the pendency of these motions. It was the duty of the Master to make and file his supplemental report, in pursuance of the order of the court, and this duty be performed.</p> <p>“ When we made the order overruling the exceptions and confirming the report of the Master, we did so with full knowledge of the pendency of the motions of 2d October, 1882. They had been argued and submitted, and the confirmation of the report was a practical overruling of the motions, although the formal decree to that effect was not entered until 12th March, 1883, or contemporaneously with the final decree in the case.</p> <p>“In conclusion we will add, that as this case has now been in court nearly nine years, we are disposed to think that the time has arrived for a decree which in form at least shall be ‘final.’ The motion to strike off the final decree of 12th March, 1883, is denied. The motion to strike off the confirmation of the Master's supplemental report is also denied.”</p> <p>The defendant thereupon took this appeal, and filed the following assignments of error : — ■</p> <p>The court below erred in the following particulars to wit:</p> <p>1. In sustaining the complainant’s bill for any purpose.</p> <p>2. In ruling that complainant was entitled to an account of the fanning operations by themselves.</p> <p>3. In ruling that complainant was entitled to a trust in the proceeds of the sale to the Everhart Coal Company.</p> <p>4. In refusing to permit respondent to claim the benefit of the Statute of Limitations.</p> <p>5. In affirming the proceedings of the Master, and confirming his reports.</p> <p>6. In entering the final decree.</p>

<p>Appeal from the Orphans’ Court of Luzerne Qounty: Of Januarjr Term, 1884, No. 128.</p> <p>This was an appeal by John McDermott from a. decree of said court, distributing a fund in the hands of H. R. Hughes, administrator of Mary McDermott deceased, wife of appellant.</p> <p>. At the time of Mary McDermott’s death (intestate) there was a deposit balance to her credit and in her name in the Miners’ Savings Bank of Pittston, which John McDermott claimed to be his money. He informed the bank of his claim and notified it not to pay out the money, but he subsequently procured the appointment of one Hughes, as administrator of his wife’s estate, to whom the bank paid the fund. Said administrator, however, declined to pay it over to him, whereupon he brought suit against the bank, but failed to recover. See McDermott v. Miners’ Savings Bank, 4 Out., 285. In that case Mr. Justice Paxson, delivering the opinion of the court, said: “ The money was paid to the administrator with the consent of the plaintiff and by his procurement. It is too plain for argument, that after such payment he had no claim against the bank. He was turned round to the position of a creditor of his wife’s estate, and as such creditor he had a right to pursue his claim in the Orphans’ Court.”</p> <p>The administrator subsequently filed his account, which included said fund. At the audit thereof John McDermott claimed the said fund, as creditor of his wife’s estate. It was also claimed in part by certain attaching creditors of John McDermott, and it was also claimed by the children of the decedent, under the intestate law.</p> <p>The adjudication of the auditing judge was as follows: — •</p> <p>The fund for distribution was obtained by the administrator from the Miners’ Savings Bank of Pittston, and was at the time and now is claimed by the husband of the decedent as Ms own money and that it never belonged to the estate of his wife. It was thought when letters of administration were granted that the ownership of the fund could be most expeditiously and economically determined on the distribution of it in the Orphans’ Court, and so it has been accounted for by the administrator as the wife’s estate. A bill of review by the administrator is now pending for leave to withdraw the fund from his account owing to a mutual error of law. It is a rule founded on elementary principles that no one can claim the fund on distribution of a decedent’s estate, unless he be’a creditor, heir or legatee of the decedent (McBride’s Appeal, 22 Smith, 480; Braman’s Appeal, 8 Norris, 78), but at the request of all the parties interested, we have concluded to follow the suggestion of the Supreme Court in McDermott v. Miners’ Savings Bank, 4 Out.. 285, and dispose of the question of ownership on distribution of the fund rather than on the proceedings for review.</p> <p>The material facts of the case cannot be well understood without a narrative of the situation of the parties.</p> <p>1. The decedent married John McDermott in 1866, and died in 1875, leaving to survive her as heirs her said husband and six children, one by a husband named Rouse, four by one named Gerrity, and one by McDermott.</p> <p>2. Her husband Gerrity left her by will the use of all his property during widowhood, but the estate consisted almost entirely of the house and lot in Pittston where McDermott’s business was carried on as hereafter stated.</p> <p>3. After Gerrity’s death she kept up a thrifty business of some sort until her son Martin had learned the business of butchering, and then she joined him as an assistant in the house left her by her husband. She and her son ran the butchering business until her marriage with McDermott, and the son continued in the same place for some time, and until McDermott and his wife moved in and took it off his hands, which was in 1869. They then ran the business until her death in 1875.</p> <p>4. When they embarked in the business he was without experience as a butcher, having been a carpenter by trade, and lie was also without any capacity to keep books, or do anything else requiring the ability to write. She assisted him in the shop, waiting on customers, kept the books, deposited the money and drew the checks and notes all in his name. There was kept at the same bank two accounts, one called a “business account,” which was in his name, and one a deposit Or “ savings account,” drawing interest, which was kept in her name. It was from this last account that the fund in dispute came.</p> <p>5. The bank books show that the business account commenced in December, 1869, with a deposit of $470, and from that time the deposits ran something like $200 per month. The savings fund account opens in November, 1872, with $1,400, followed by one 2d January, 1873, of $400, March 19, $600, and at the end of 1873 this fund amounted to $2,800. In June of 1874 the fund had reached $3,873, when $500 was withdrawn by the wife, and at the time of her death the fund was $4,840.73, as reported by the administrator in his account.</p> <p>6. During the first two of the six years that McDermott and wife occupied the Gerrity premises as a residence and butcher shop the rent was paid by her application of the sum on Gerrity’s debts, and'at her death the rent owed by McDermott on a lease with the guardian of the Gerrity children was $975, for which the administrator has been attached.</p> <p>7. It does not distinctly appear that Mrs. McDermott had any money or property of her own separate estate at the time of the marriage except as above stated.</p> <p>8. It does appear that McDermott had at the time he went into business real estate valued at about $2,000, which he sold. At the death of his wife he had a special certificate of deposit at bank in his own name of $1,300, accounts on book since collected amounting to $1,000, and a balance on the business bank account of $143.58. Except the rent account, his debts amounted to something like $1,000, which were nearly all contracted in the business. Some of the creditors have attached the fund, but this will more fully appear in the report of the audit figures.</p> <p>9. Of the savings fund account $700 was deposited by the wife in cheeks drawn by her on her husband’s business account, and the source of the balance of the fund is not directly proven, but we feel safe in finding as matter of fact that it came from the business, and was deposited by her in her own name with his knowledge and consent, and that he intended it as a provision for his wife in case of misfortune in business. The savings bank book was found a short time before her death by her daughter in his chest, which was not under lock and key. The daughter gave the book to a friend, by whom it was delivered to the administrator.</p> <p>10. One of the terms printed in the savings bank book reads as follows: “Deposits made by married women, and by minors, of their own money and in their own names, cannot be withdrawn by their husbands, fathers or guardians.”</p> <p>These seem to be about all the facts at all material to the question at issue, and in arriving at these we have excluded the testimony of the husband and the children as to matters arising prior to the decedent’s death, except where they were drawn out by the adverse party on cross-examination: McBride’s Appeal, 22 P. F. S., 480; Gyger’s Appeal, 24 P. F.S., 42; Kimble v. Carothers, 31 P. F. S., 494; Murray’s Estate, 2 Pearson, 473. Under this state of facts to whom shall we say this fund belongs? In such cases the rule is that the wife must clearly show that the money was either owned by her before marriage or that it was acquired by her afterwards by means not provided by her husband, or that it was a gift from him to her: Walker v. Reamy, 12 Casey, 410; Gault v. Saffin, 8 Wright, 307; Wilson v. Silkman, 1 Out., 509; Speakman’s Appeal, 21 P. F. S., 25.</p> <p>In a contest with creditors the husband’s gift cannot affect them, as he must be just before the law will allow him to be generous ; but in a contest with heirs they may show the gift, but this must be done by clear and positive testimony: supra, Gamber v. Gainber, 6 Harris, 363; Bradford’s Appeal, 5 Casey, 513; Topley v. Topley, 7 Casey, 328; Herr’s Appeal, 5 W. & S., 494; Crawford’s Appeal, 11 P. F. S., 52.</p> <p>The mere possession of money by the wife is not sufficient evidence of her ownership : Parvine v. Capewell, 9 Wright, 89; Leow’s Estate, 6 W. N. C., 333 ; and the converse is also true that the mere possession of a wife’s money is no evidence, since the Act of 1848, that the title to it is vested in the husband: Hamill’s Appeal, 7 Norris. 363.</p> <p>Under these rules of law we have no hesitancy in saying that this fund belongs to the husband unless the proof will sustain us in finding that it was a gift by him to her as already found.</p> <p>In arriving at the fact of gift we have considered these points: 1st, that it was chiefly through her skill, industry and economy that the money was acquired. 2d, that it was at her old business place that the business was made successful. 3d, that without her and her friends he never did anything at the business, beginning after the marriage and quitting immediately’ after her death. 4th, that he kept a business account and had a special individual certificate at bank of an amount of money nearly equal to the amount which he had at the time of marriage. 5th, that immediately after her death ho inquired for the savings bank book, and said to the daughter something about the money of right should belong to him. 6th, that there is no evidence that she had concealed from him the fact that the savings account was in her own name. And 7th, assuming that he knew the fact of deposit in her own name, he could not have placed the fund more completely under her control and exclusive possession.</p> <p>In Herr’s Appeal, supra, the subject of the gift was money unaccompanied with any declaration amounting to a trust. There the money was kept in a lower or false bottom of a trunk to which the husband had access at all times, and to which he often went without the presence of his wife. There was no' formal delivery of the money to her, and his actual access and control over it, and the legal unity of person made the possession as much his own as his wife’s. The whole fact of gift rested solely on his declaration that he had given her a sum of money.</p> <p>In Crawford’s Appeal, supra, which was also a contest between the wife and the heirs, and therefore put upon different grounds than if it had been between strangers or creditors, the chief evidence of a gift by the husband to his wife was a memorandum made by his clerk in his account book crediting her. with the sum of $3,000.</p> <p>Here, as we have before said, starting with the assumption that she did not set up a fraud on him, the evidence of a completed executed gift could not be more clear.</p> <p>We have, therefore, under the request of counsel, distributed this fund, first, to the attaching creditors of John McDermott, and the balance to the heirs of the decedent, of whom he is one.</p> <p>Exceptions filed by John McDermott to the finding of the auditor that the evidence showed a gift, and to the distribution, were dismissed by the court in the following opinion :—</p> <p>In our report of audit we found as matters of fact that the money in question never belonged to the decedent except as a gift to her from her husband, and that as matter of law the burden rests on her heirs, who assert the gift to-establish it by something more than the mere possession of the fund by their mother. They are not obliged, however, to establish the gift by any more or other proof than what would constitute a gift to any other person who might be of kin to the donor : Herr’s Appeal, 5 W. & S., 494; Gibson, C. J.</p> <p>To say that gifts by husbands to their wives are to be looked upon with “suspicion” where creditors or others are to suffer, is also true of all gifts or mere voluntary grants of chattels: 2 Blackstone, 440. But gifts to a wife or child are in no sense “ suspicious ”: Hill v. Earnest, 13 W. H. C., 464. No one is to be deprived of his propert}*- without some evidence of his assent, but when he voluntarily places it out of his own name into the name and dominion of another the burden is upon him to show that at the time of parting with it he reserved to himself some right to retain it: Hill v. Earnest, supra.</p> <p>This fund was certainly placed beyond the control of the husband both under the terms printed in the bank book and the Act of 15th May, 1874 (P. L., 193), and if it ivas so_deposited by his assent, it is equivalent to his express direction, and the delivery would be complete and undoubted.</p> <p>From the barrenness of the evidence on the intent of the parties at the time the money was deposited we must resort to presumptions or inferences from acts done; and from the nature of the transaction and the relations of the parties, we must presume, 1st, that the deposit was made by the wife in her own name by her husband’s direction or assent, and for Ms own use; or, 2d, that it was made without his knowledge or assent, and with intent, through his ignorance or otherwise, to defraud him; or, 3d, that it was made in pursuance of an intent to make a gift of it to her.</p> <p>It is ruled in Tripner v. Abrahams, 11 Wright, 220, that “property transactions between husband and wife are to be scanned with great care and caution, yet they are not, as to their bona fides, to be overthrown upon presumptions merely; the same rules of law and evidence apply to them as obtain in other cases. Proof of ownership in the wife must he clear and satisfactory, sufficient to repel all adverse presumptions; but it need not be so clear that there can be no doubt, nor, if a doubt exists, must it operate affirmatively to induce a verdict against her.” When a man invests his money in the name of a stranger, the law presumes that a trust was intended; but when the investment stands in the name of a wife or child the presumption is one of gift, to be rebutted, however, by the ordinary rules of evidence: Hill v. Earnest, 13 W. N. C., 464. In McCluskey v. Provident Institution, 103 Mass., 300, the proofs were that the deposit had been made by the wife at her husband’s request and for his own benefit, and this was held sufficient to rebut the presumption of a gift to her. Sweeney v. Boston Savings Bank, 116 Mass., 384, is distinguished from the one just cited in that the husband made the deposit in his wife’s name without explanation to rebut the presumption of an intended gift, and it was ruled that he could not recover it back. Applying these rules of law, then, we are not to presume that the wife intended to commit a fraud on her husband if any other reasonable view can be taken of the transaction. If the deposit was made for the husband’s use and benefit, let him show it; indeed it is incurnbent on him to prove it by some evidence, which we think he has utterly failed to do.</p> <p>Was it a gift? Why not conclude that it was? What is there unreasonable about it?</p> <p>Dismissing the presumption that the wife concealed from her husband the character of the deposit, we are driven to the conclusion that he must have known of its existence and assented to it, and this seems every way reasonable ; for the business of making these deposits was carried on for many yéars with the bank book in his possession, and to say that he did not know the status of his several bank accounts is to presume that he was a mere booby. It must be remembered that he had a private bank account of the money which he had at his marriage; that he had another, called a “business account,” on which his wife drew his checks; while a third was the savings bank account in her name with no checks drawn against it. When the business account was low, notes were drawn by her in his name, but neither drew checks on their own separate account.</p> <p>The mere possession of the bank book by the husband in common with his wife does not change the legal effect of the deposit or ownership of the wife (Bachman v. Killinger, 5 P. F. S., 414), and in Crawford’s Appeal, 11 P. F. S., 52, the wife never saw the husband’s account book, or knew of its existence during his life. The merits of the case seem certainly with the presumption of a gift, for it was, as we have said in our report, chiefly through the wife’s skill, experience and labor that the fund was accumulated, and to give him the whole fund would be to enrich him and to deprive her children of a share of the inheritance. Besides, as he had no knowledge of the business, he may have thought it “ hazardous,” and hence proper for him to compensate his wife before any -misfortune might overtake him. These considerations have no weight, of course, in the legal scales, for the fruits of her labor and skill belonged to him, but they show no lack of motive to make the gift. As to the question of the admission of the husband as a witness we refer to McCauley v. Cook, 5 Out., 209, and cases there discussed, showing that the Act of 1865 did not apply to his case, and hence that his testimony is not to be considered further than already allowed.</p> <p>We therefore dismiss those exceptions which have not been withdrawn, and confirm the report of audit absolutely.</p> <p>John McDermott thereupon took this appeal, assigning for error, the dismissal of his exceptions and the decree.</p>

<p>Error to the Court of Quarter Sessions of Luzerne county: Of January Term, 1884, No. 167.</p> <p>Indictment against Charles Shovlin, Charles W. Tammany and Hiram Rhoades, containing' two counts, viz., (1) aggravated assault and battery; (2) assault and battery on one T. E. Bowser.</p> <p>On the trial, before Woodward, J., the following facts appeared: At a meeting of the Lee Park Trotting Association, held in June, 1883, one Bowser secured the privilege of putting up a gambling apparatus in the Park. Complaint of this fact was made to some of the constables of Wilkesbarre, among others to C. W. Tammany, who requested the officers of the Park to have the gambling stopped, and subsequently, upon learning that nothing had been done, applied to an alderman for a warrant for the arrest of Bowser, and was informed by said alderman, that the statute authorized his arrest without a warrant. He then secured the assistance of two other constables, Shovlin and Rhoades, and they went to the gambling tables, and Tammany announced himself as a constable, showed his star, and told Bowser to surrender his machinery, and consider himself a prisoner. Bowser refused, and upon Tammany’s attempting to put handcuffs upon him, a fight ensued, in which Bowser was severely bruised by a billy, and the butt of a revolver in the hands of one of the constables, and some of the money from the tables was taken by the constables. Bowser escaped.</p> <p>The constables were arrested upon information of one W. J. Harvey, the superintendent of the Park, charged with an aggravated assault and battery, and the prosecutor further alleged that the only purpose of the constables in making the raid was to secure gain for themselves.</p> <p>The court charged the jury, inter alia, as follows: [If you believe the witnesses for the Commonwealth, there was here an attack made upon this injured man which would seem to have been unnecessarily violent, although made by officers of the law, and the defendants may be convicted.] (First assignment of error.) If, on the contrary, you believe the evidence of the defendants and their witnesses that they exercised no more force than was necessary to vindicate the law and protect themselves from injury, they should be acquitted. Or if after a calm, conscientious, and full review of all the evidence on both sides, you still feel a reasonable doubt in regard to the subject, the defendants are entitled to the benefit of that, and should be acquitted......</p> <p>[If an officer proceeds to make au arrest for an offence committed under his eye, without a warrant, he is bound to give to the party to be arrested clear and distinct notice of his purpose of making the arrest, and also of the fact that he is legally qualified to make it, or is an officer of the law; and failure to do this, on the part of the officer, may make him guilty of an assault upon the person arrested, while under other circumstances — if proper notice had been given — he would not be guilty of an assault; and in this connection we may say to you further, that something more is necessary than merely to show a star or badge, insignia of office.] (Second assignment of error.)</p> <p>Verdict guilty on the second count. The court sentenced Shovlin to pay $50 and costs, and Tammany and Rhoades each to pay $100 and costs. The defendants took this writ, assigning for error the portions of the charge above inclosed in brackets.</p>

<p>Error to the Court of Common Pleas of Luzerne county: Of January Term, 1884, No. 81.</p> <p>This was an action on the case by William Warne against the Borough of Nanticoke, to recover damages for the loss of service and the expenses incurred by him in consequence of the injury suffered by his wife, Elwida, from a fall, which was alleged to have been caused by the defendant’s negligence.</p> <p>On the trial, before Rice, P. J., the following facts appeared : On the afternoon of August 30th, 1880, Mrs. Elwida Warne was walking along the board sidewalk on Market street, in the borough of Nanticoke, on her way to the doctor’s to procure medicine for her child, when suddenly the planks gave away, and she was thrown forward upon her stomach, receiving severe injuries of a permanent nature. At the time of the accident, and prior thereto, the sidewalk had been out of repair, the planks being loose and the stringers at the place of the accident being rotten. The Street Commissioner testified that he had noticed the condition of the walk, and had requested the owner of the adjoining property to repair it. Warne, the plaintiff in this suit, and the husband of the party injured, knew that there were loose places and holes in the sidewalk, and was present when his wife started on her errand, but did not tell her about the condition of the walk, although he knew his wife, by taking the usual route to the doctor’s, would pass these places. Mrs. Warne testified that she never observed anv defect in the sidewalk, except holes at some places, and she also testified that “it looked perfectly safe ” where she went through.</p> <p>Several other witnesses testified as to the dangerous character of the sidewalk.</p> <p>The defendant presented, inter alia, the following points:—</p> <p>3. If the jury believe there was a latent defect in the walk in front of Shay’s lot, and that Mr. Warne knew of this defect, and also knew that by reason thereof it was dangerous and unsafe, and failed to notify the borough authorities, or to warn his wife, then if it appears that she was injured, as described by her, the plaintiff cannot recover in this suit.</p> <p>Answer. We cannot charge as requested in this point. If he was guilty of concurrent negligence, that is, if he did not use ordinary care in the matter, that would, of course, prevent his recovery. In considering the question as to whether or not he exercised ordinary care, you will inquire whether he knew of the defect, whether it was latent, not readily seen, and whether it was dangerous and unsafe for a person to go upon it, even with the exercise of ordinary care in passing over; and lastly, whether he knew that his wife was about to pass over the same upon her way down town for the medicine. If, under all the circumstances, it is shown that he did not exercise ordinary care — the care which an ordinarily prudent man would exercise under the circumstances of the case— then he cannot recover. If a man should see his wife about going to a place where he knows she must in all human probability receive injury, and does not warn her of her danger, he could not, of course, recover for any damages that might result from such an act on her part. He would be guilty of negligence ; his conduct would not be the care of an ordinary prudent man.</p> <p>5. That it appearing by the plaintiff’s own testimony in the case that he knew that the walk was bad and dangerous by reason of loose plank, it was his duty to have warned or notified his wife of the danger, and having failed to do so, he cannot recover.</p> <p>Answer. We decline to charge as requested in that point. To do so would be to take the whole matter from you. We think it is a question of fact for you.</p> <p>7. That under all the testimony in {¡the case the plaintiff cannot recover. Refused.</p> <p>Verdict for the plaintiff in the sum of $2,575, and judgment thereon. Whereupon defendant took this writ, assigning for error the answers to the points as given above.</p>

<p>Error to the Court of Common Pleas, of Luzerne County: Of January Term, 1884, No. 414.</p> <p>This was a ease stated, wherein Frank Clark was plaintiff, and A. J. Davis, lessee, and John F. Jones, contractor, were defendants, setting forth as follows:—</p> <p>1. That by indenture of lease bearing date the 28th day of November, 1864, and recorded, &c,, Hendrick B. Wright, for himself and as guardian of Hendrick B. Wright, Jr., leased the coal lying under two certain tracts of land situate in. the township of Hanover, said county, to Abel Barker et al., with a covenant against underletting.</p> <p>3. That by indenture of assignment bearing date the 2d day of January, 1865, and recorded, &e., the said Abel Barker et al., after having procured the written assent of the said Hendrick B. Wright thereto, assigned their interest in the said lease to the Warrior Run Mining Company.</p> <p>3. That by indenture of lease bearing date the 26th day of March, 1870, and recorded, &c., the said Warrior Run Mining Company leased to the said A. J. Davis, for a term of ten years, with privilege of renewal for a further term of ten years, the coal under the tracts of land aforesaid, and since the execution of this lease, he the said A. J. Davis, has paid to the said Hendrick B. Wright and his legal representatives the royalties provided for in the lease first aforesaid.</p> <p>4. That the said A. J. Davis, pursuant to the lease last aforesaid, went into possession of the said premises, and has ever since remained in possession thereof, mining and removing the coal therefrom.</p> <p>5. That on the 21st day of October, 1883, the said John F. Jones, by contract in writing of that date, undertook to drive a certain rock tunnel on the premises aforesaid, three hundred feet in length and seven and. thirteen feet in depth, for the said A. J. Davis, at seventy dollars per yard.</p> <p>6. That immediately upon the execution of the last aforesaid contract, the said John F. Jones began to work upon the said tunnel and continued the prosecution of the same for a distance of about sixty yards and until the fore part of the month of April, 1883, when he abandoned the contract and left the country.</p> <p>7. That the said Jones employed the said Clark and others to work upon the said tunnel by the day, and at the time he, the said Jones, quit working as aforesaid, he owed him, the said Clark, on account of his work, as day laborer upon the said tunnel and performed as aforesaid at the instance of the said Jones, between the 1st day of March, 1883, and the 23d day of April, 1883.</p> <p>8. That-on the 25th day of April, 1883, the said Clark filed in the office of the prothonotary of Luzerne county, under the Act 28th June, 1879, P. L., 1879, pages 182 and 184, and the other laws of this commonwealth to which the said Act is a supplement, against A. J. Davis, lessee, and John F. Jones, contractor, his claim of which the following is a copy, viz:</p> <p>In the Court of Common Pleas of Luzerne County. Frank Clark v. A. J. Davis, Lessee, John F. Jones, Contractor, Mechanics’ Lien.</p> <p>Frank Clark, the above-named claimant, hereby files his claim or statement against the leasehold estate or interest of A. J. Davis, lessee, in certain lands and coal property hereinafter described. The names of the owners or reputed owners of the said property so held under lease are George Wright, Anna Wright, Carrie Wright and Mrs. Hawley, heirs of Hendrick B. Wright and H. B. Wright, Jr. The name of the lessee is A. J. Davis. The name of the person with whom the claimant made this contract is John F. Jones, but the labor done by the claimant was for the use and benefit of the said A. J. Davis. The sum of money claimed to be due is seventy-five and seven-liundreths ($75.07) dollars. The labor done was boring, drilling and mining a rock tunnel by the claimant in the capacity of minor, in the certain coal mine operated by the said lessee on the lands hereinafter described. Said tunnel commences about forty yards from the bottom of the new slope in said coal mine and runs in a southeasterly direction. The said labor was performed by claimant on thirty-two and one-half working days between the 1st day of March, 1883, and the 23d day of April, 1883. The agreed price for said labor was two and thirty one-hundredths ($2.31) dollars per day, making the total sum for such labor $75.07. The locality of the lands upon which the said labor was performed and held under lease by said A. J. Davis, is in the borough of Sugar Notch and township of Hanover, Luzerne county and state of Pennsylvania. These lands consist of two tracts: one of them being parts of lots numbered thirteen and fourteen in the first division of certified Hanover township, and containing about one hundred and twenty-four acres; the other parcel being parts of lots numbered fourteen and fifteen in the first division of certified Hanover township and containing about one hundred and sixty-three acres. A full description of said lands is contained in lease recorded in Deed Book 100, page 32, &c., in recorder’s office in and for said Luzerne county, to which reference, as part of this paper, is hereby made. There is a coal breaker upon this property, together with all the improvements belonging to an anthracite colliery. The lands are operated by the said A. J. Davis in coal mining. The coal is raised by lifts and through a slope to day light.</p> <p>Witness the hand of the said claimant, the 24th day of April, A. D. 1883.</p> <p>his</p> <p>Frank -f- Clark.</p> <p>Witness: Rdeds J. Bell. - mark.</p> <p>Sworn and subscribed, &c., this 25th day of April, A. D. 1883.</p> <p>9. If the court be of opinion that the Act 28fch June, 1879, P. L. 1879, page 182, &c., or so much thereof as is applicable to this case is constitutional, and that said Act authorizes a lien for an indebtedness not contracted by the lessee himself or by his agent; and that the work and labor set forth in the claim of the plaintiff was performed upon such an improvement as entitles him, the said plaintiff, to avail himself of the benefits of the Act, or that the said labor of the plaintiff was done for the use and benefit of the said A. J. Davis within the contemplation of the Act; and that (if the said clai'm does not warrant the construction that it was filed against the development, improvement and leasehold therein set forth,) the plaintiff had a right to file his lien against the leasehold alone without including the development or improvement to the construction of which he contributed his labor; and that the claim of the plaintiff is good notwithstanding the omission therefrom of the statement that the work was done “ for the development or improvement of the same,” viz., the lease, then judgment to be entered for the plaintiff, but if not, then judgment to be entered for the defendant, the costs to follow the judgment, and either party reserving the right to sue out a writ of error therein.</p> <p>The title and material sections of the Act of June 28,1879, are as follows:—</p> <p>Title. — “A further supplement to an Act relating to the liens of mechanics and others, approved the 16th day of June, 1836, and extending its provisions to embrace liens of meehanies and laborers upon leasehold estates and property thereon.”</p> <p>Section 2. “ That all persons performing labor for or about the construction or erection of any engine, engine house, derrick, tank, buildings, machinery, wood or iron improvement, constructed or erected upon any leasehold, held either by written or verbal lease, or for boring, drilling, or mining on any lease or lot, as aforesaid, for the development or improvement of the same, whether such labor is or may be done by the day, or by contract, for the tenant or tenants, lessee or lessees, of such lot or lease or parcel of land, or for their use or benefit, shall have a lien upon such engine or engines, engine house, derrick, tank, building, machinery, wood or iron improvements, oil wells and fixtures on said lot or leasehold of ground, and upon such lot or leasehold itself, for the price and value of such work and labor: Provided, That the lien hereby given shall extend only as to such lease or lot to the interest of the lessee or lessees, tenant or tenants therein.”</p> <p>Section 6 contains the following clause: “ Provided, that the provisions of this Act shall not apply to counties having a population of over two hundred thousand inhabitants.”</p> <p>Section 7. “AH general laws, or parts of general laws, inconsistent herewith, be and the same are hereby repealed.”</p> <p>Art. III. § 7 of the Constitution declares: “ The General Assembly shall not pass any local or special law, authorizing the creation, extension, or impairing of lions.</p> <p>The court, (Woodwaed, J.), entered judgment in favor of the plaintiff, on the case stated (no opinion filed).</p> <p>The defendants took this writ of error, assigning for error the entry of judgment for plaintiff.</p>

<p>Ebbob to the Court of Common Pleas of Luzerne county: Of January Term, 1884, No. 381.</p> <p>This was a case stated in the nature of a special verdict, in which Charles E. Dana and Emily Hollenback, his wife, to her use, were plaintiffs, and Andrew T. McClintock and Edward P. Darling, executors of the last will and testament of Sarah H. Woodbury, deceased, were defendants.</p> <p>The case as stated was substantially as follows: Emily H. Dana, the plaintiff, was the only child of Sarah H. Woodbury, the defendants’ testatrix, who died on March 24,1871, leaving a last will dated June 14, 1869, duly admitted to probate. By her said will the testatrix devised her residuary estate to Andrew T. McClintock and Edward P. Darling, her executors in trust, to invest from time to time her personal estate and the proceeds of her real estate, either from annual profits or from the sales .thereof, thereinafter authorized to be made, “in such securities as the said trustees, and to apply so much of the interest and yearly proceeds or income of my estate, real and personal, as, in the opinion of the said trustees, shall be proper and necessary for the suitable and comfortable support of my daughter, Ellen Hollenback Woodbury, until she attains the age of twenty-one years; the balance of the income of my residuary estate, if any, after a liberal allowance for the support of my said daughter, to bae securely invested as aforesaid.</p> <p>“ And upon the further trust to pay over to my said daughter after she attains the age of twenty-one years, yearly, in each and every year for and during her natural life, the entire yearly interest and net income of my said residuary estate, and the yearly interest and net income of any and all accumulations thereof, for her solo and separate use and benefit, and upon her sole and separate receipt, without the joinder of or interference in any way of her husband, if she should many, as is now or may hereafter be contemplated.”</p> <p>After the death of her daughter, the testatrix directed her executors to convey the estate to her children on their attaining the age of twenty-one; and by another clause gave her executors fall power to lease or sell her real estate. The testatrix’s daughter married Charles E. Dana in November, 1870, and had by him two children. At the time of her death the testatrix was seised as a tenant in common of certain coal lands, then unopened in Luzerne county, and was interested In the rental of other coal lands then opened and leased to the Wilkesbarre Coal and Iron Company, and the Delaware and Hudson Canal Company. On July 1,1882, the executors and trustees united with the other tenants in common with their testatrix in a lease to the Lehigh Valley Coal Company, by which the lessors did “ demise, lease and to mine-let ” to the lessees “ all the coal in, under and upon ” a certain tract of land, “ together with the right to mine and remove said coal until all tlio coal in, under and upon said tract of land shall have been exhausted.” A rent or royalty was reserved to the lessors proportioned to the number of tons removed, and the size of the coal, as set forth below in the opinion of the court. Under the said lease the defendants as executors and trustees of the said will had received as their share of the rentals up to and including October 1, 1883, the sum of $1,993.91. This sum the defendants refused to pay over to the plaintiffs, on the ground that it was not part of the income of the estate, but of the principal.</p> <p>“ If the court shall be of the opinion that the rents reserved, under the said lease to the Lehigh Valley Coal Company, and so received as aforesaid by the said defendants, are payable to the said plaintiff, Emily Hollenback Dana, then judgment to be entered in favor of the said plaintiff, but without costs. If, in the opinion of the court the said moneys are not so payable, then judgment to be entered for the defendants, with costs,” both parties reserving the right to a writ of error.</p> <p>The court (Riots, P. J.), entered judgment in favor of the plaintiffs. The defendants thereupon took this writ, assigning for error the entry of this judgment.</p>

<p>Appeal from the decree of the Orphans’ Court of Luzerne County, in the matter of the estate of Nancy S. Drake, deceased: Of January Term, 1884, No. 382.</p> <p>This case arose upon the petition of Willie Drake Loomis for a citation to L. D. Shoemaker, trustee under the will of said Nancy S. Drake,-deceased, and George K. Powell, guardian of the minor children of the petitioner, to show cause why certain coal rents received by L. D. Shoemaker as said trustee, should not be paid to the petitioner.. The facts as they appeared from the petition and the answer of Shoemaker and Powell were as follows-: Nancy S. Drake died on January 11, 1872, leaving a last will and codicil thereto dated January 13, 1865, and December 2, 1868, respectively, by which she gave and devised all her residuary estate to a trustee to be appointed by the proper court, in trust to apply the .annual income and proceeds thereof for the support of her grandson, Willie Drake Loomis, until he should attain the age of twenty-two years, and upon his arrival at said age to pay over to him the net annual income and proceeds of any accumulations thereof during his natural life and upon his death to pay, transfer and convey the said estate to the children of the said Willie Drake Loomis, with remainders over in default of children living at his death. Of this will, L. D. Shoemaker was duly appointed trustee by the Orphans’ Court of Luzerne county. The testatrix died seised inter alia of a farm of 100 acres of land in Newport township as to which she directed: “ I order and direct that my farm of 100 acres in Newport township and likewise the place where I now live on Main street, shall under no circumstances be sold during the life of my said grandson, Willie Drake Loomis, but my trustees may if they deem it proper lease the Newport farm for coal mining purposes.” Shoemaker, acting as said trustee, on October 19, 1881, “granted, leased and to mine let” to the Alden Coal Company “ all the coal and vein or strata of coal in, under and upon all these two certain tracts or pieces of land ” referred to by the testatrix as her “Newport farm,” for such term “as may be necessary and required to mine and remove all the workable coal in and under said lands,” under and according to the terms and provisions of the lease, reserving a fixed rent or royalty for specified quantities of coal to be mined in each year.</p> <p>Willie Drake Loomis, the petitioner, attained the age of twenty-two in August, 1865, and at the date of his petition had two minor children whose guardian was George K. Powell, one of the respondents. It appeared that Shoemaker as trustee had received as rent under this lease the sum of $375 which he refused to pay over to the petitioner on the ground that it constituted either a part of the corpus or principal of the estate of Nancy S. Drake or the accumulation of income, to the annual income or proceeds of which only would the petitioner be entitled under the said will.</p> <p>After hearing on petition and answer the Orphans’ Court ordered and decreed that the respondent account and pay over to the petitioner the amount admitted by his answer to be in his hands, to wit, the sum of three hundred and seventy-five dollars: Whereupon the respondents, L. D. Shoemaker, trustee, and George K. Powell, guardian aforesaid, took this appeal, assigning for error the entry of this decree by the court.</p>

<p>Error to the Court of Common Pleas of Montgomery county: Of January Term, 1884, No. 367.</p> <p>This writ of error was taken by W. IT. H. Davis, plaintiff in a judgment recovered against Charles Michener on a single bill, assigning for error certain orders of the court setting aside a fi. fa., issued by plaintiff in pursuance of his judgment, and refusing a petition for an alias fi. fa. The facts of the case and the questions presented by the assignments of error are fully stated in the opinion of this court.</p>

317. This was an appeal by John P. Leininger et al. from a decree of said court sustaining a bill in equity filed by the Summit Branch Bailroad Company against the appellants, and granting an… Held: used and claimed as one body. The exterior lines of this body of land were marked on the ground and painted about the year 1867, and the plaintiff has always claimed up to the lines so marked, and has not regarded the interior lines of the several tracts.

<p>1. In Pennsylvania tlxe action ol ejectment by a vendee against his ven<loi% under articles of sale, is the equivalent of a hill in equity for specific performance, and relief is therefore not of absolute right, bxxt rests in the equitable discretion of tlxe court.</p> <p>2. In actions for specific performance of a coxxtract of sale of land, the legal obligations ai'ising from it will not bo enforced if injxistice would result from a decree, whether the contract be originally inequitable, ox-rendered such by subsequent events. In such cases the parties will be remitted to their remedy in an action at law for damages.</p> <p>3. A vendee cannot enforce the specific performance of a contract for the sale of land if he has been guilty of Jaches or of conduct calculated to induce the other party to suppose that he had abandoned the contract.</p> <p>4. A. contracted by writteix agx-eemoni to sell a tract of land to B. A. being unable to make a clear title the deed was not executed at the time specified. Some three yeax-s elapsed, and other circumstances concurred from which A. might reasonably have concluded that B. had abandoned his purchase. Subsequently, after A. had begun to build a house oxx the land, which considerably inci-eased its value, C., an assignee of B.’s title, who bought with'full knowledge of all tlxe eix-cumstaixces, brought an ejectment to enforce the articles of sale.'</p> <p>Held, under the circumstances that C. was not entitled to recover.</p>

<p>1. A tenant, in a proceeding by Ms landlord under the act of 1830 to recover possession for non-payment of rent, may show in defence that the title of the landlord has come to an end by expiration, or by the landlord’s own act, or that it has been divested by act of law.</p> <p>2. There is no difference, in substance, between the determination of the landlord’s title by a sheriff’s sale under a judgment against Mm personally, and its determination by a sheriff’s sale under a judgment against the landlord’s grantor which was a lien upon the land at the time of the inception of the landlord’s title.</p> <p>3. A. being seised pf certain premises sold them to B. subject to the . lien of two executions already levied upon them. B. afterwards leased the premises to C. Subsequently the premises were sold at sheriff’s sale under the execution to another party. In a proceeding by B. against C. to recover possession of the premises for non-payment of rent:</p> <p>Held, that C. was entitled to set up the above facts as a defence.</p>

<p>Error to the Court of Common Pleas, of Montgomery county: Of July Term, 1883, No. 76.</p> <p>The material facts of this case were these: On December 30, 1881, Margaret Fisher recovered judgment against Edwin E. Fisher for $250. On July 29, 1882, the death of the plaintiff was suggested, and Andrew J. Fisher, administrator of her estate, was substituted of record. The defendant was one of the heirs of Christian Fisher, deceased, who died seised of certain real estate. In proceedings in partition in the Orphans’ Court, John M. Fenton was appointed .trustee, under section 44 of the Act of February 24, 1834, P. L., 81, for the purpose of making sale of said real estate. After the sale was made an auditor was appointed to distribute the fund in the hands of the trustee. The auditor distributed to G. R. Fox, Esq., ■attorney for Edwin E. Fisher, one of the heirs of the decedent, the sum of $340.33. Before this money was paid by the trustee to Mr. Fox, Andrew J. Fisher, administrator, etc., issued an attachment execution on the above mentioned judgment against said John M. Fenton, garnishee, to attach the interest of the defendant in the fund in the hands of said garnishee.</p> <p>On motion of defendant’s counsel the court granted a rule to. show cause why the attachment should not be dissolved, and the writ quashed, which rule the court discharged, and entered judgment against the garnishee, on his answers, for 8230, the sum admitted to be due the defendant in the garnishee’s hands, less costs and garnishee’s counsel fee.</p> <p>The garnishee thereupon took this writ of error, assigning for error the discharge of said rule, and said judgment.</p>

<p>Section 12 of the Act of April 29, 1871 (P. L. 79), authorizing a corporation to assess upon each share of stock such sums of money as the stockholders think proper, not exceeding in the whole the original par value of the stock, confers the power to make such assessment upon stock the full par value of which lias been already paid by the subscriber. The liability to assessment thereby imposed is independent of, and beyond the liability for assessment up to par value.</p>

<p>1. A., a physician in J., sold his practice to B., and agreed never “ to locate ” again within five miles of J. to practise medicine, and further, never to practise within five miles of J. Subsequently B. agreed to permit A., on payment of 0500, to “reside and locate himself anywhere within the limits of the city and county of P., for the pui’posc of practising the profession of medicine without any limitation or restriction whatever.” To this was added the following clause: “Nothing herein contained shall refer to or include any place without the limits of the city and county of P.” A. afterwards practised within five miles of J., and outside of the city and county of P., without objection on the part of B., who frequently saw him and mot him in consultation.</p> <p>Held, that under the supplementary contract, A. was precluded from locating himself within five miles from J. outside of the city and county of P.; but was not precluded from practising without the city and county of P., within five miles of J. This, especially, in view of the construction placed upon the contract by the parties themselves, as shown by their actions thereunder.</p> <p>2. An interlocutory injunction concludes no rights, and though affirmed, on appeal, by the Supreme Court, it does not follow that the Supreme Court will not, on appeal from a final decree, reach a different conclusion on the question whether or not a permanent injunction shall be granted.</p>

73. This was an appeal by Joshua, Reuben and Lewis Riegel, executors of Daniel Riegel, deceased, from a decree dismissing their exceptions to the report of an auditor of their account, and confirming said report. The facts were as follows: Daniel Riegel died January 20, 1881, leaving to survive him a widow and eight children, having by his will appointed his three sons, Joshua, Reuben and Lewis Riegel his executors.

41. This was a scire facias sur judgment, quare exeeutionem, non, by Tobias G. Frankenfield, administrator of the estate of Hannah Hess, deceased, against David W. Hess, executor of the last will and testament of Addison J. Hess, deceased. The original judgment was entered October 1, 1863. in favor of Hannah Hess against Addison J. Hess (plaintiffs husband) upon a judgment note-, bearing date April 3, 1860, for $3,000, payable one year after date, with interest.

<p>Error to the Court of Common Pleas of Clinton county: Of January Term, 1883, No. 319.</p> <p>Assumpsit, by Adam Earon against L. A. Maclcey, S. II. Fredericks, E. A. Mackey and N. W. Fredericks, late doing business in the firm name of Mackey, Fredericks & Co. L. A. and E. A. Mackey pleaded Jion assumpsit, payment with leave, and the statute of limitations; and N. W. Fredericks filed a special plea denying the partnership. The action was brought on a promissory vote dated January 10, 1865, payable one day after date to the order of Adam Earon for seventeen hundred dollars by Mackey, Fredericks & Co.</p> <p>On the trial, before Cummin, P. J., the facts appeared as follows: On and after February 1, 1853, L. A. Mackey, S. H. Fredericks and E. A. Mackey, were engaged in the business of manufacturing lumber, mining coal, etc., at Queens Run, in Clinton county, as L. A. Mackey & Co. On November 1, 1855, L. A. Mackey, with the assent of his co-partners, sold to N. W. Fredericks a part of his interest in the firm by written assignment as follows:</p> <p>“For value received, I hereby assign and transfer to N. W. Fredericks the one undivided eighth-part of the leases for lumber, coal and clay, as held by L. A. Mackey & Co., at Queens Run; also the one eighth of all the personal property, notes, bonds, and accounts, and all other property of every kind belonging to the firm of L. A. Mackey & Co., at Queen’s Run. Creating the said N. W. Fredericks by this transfer, a partner in the firm of L. A. Mackey & Co., to the amount of one eighth of all its profits and losses from November 1, 1855, and all time prior thereto, commencing with leases of said company.</p> <p>“L. A. Mackey.</p> <p>“ Queen’s Run, November 1, 1855.”</p> <p>After this sale the assignee was received as a partner, but the firm name remained as before, and no change was made in the books and accounts. On February 1, 1857, the name of the firm was changed to Mackey, Fredericks & Co., and so continued until December 1, 1858, when the partners ceased to do business, wound up and divided their assets among themselves. The services which were the consideration for the note in suit were rendered by Adam Earon, the plaintiff, to L. A. Mackey & Co., prior to and after the admission of N. W. Fredericks to the firm; and the original obligations given for the indebtedness were in the name of L. A. Mackey & Co.</p> <p>On January 10,1857, Mackey, Fredericks & Co., gave a new note to Earon for $1,975 in renewal of the notes then held by him of L. A, Mackey & Co. This note was again renewed after sundry payments made on account, and interest was regularly paid by E. A. Mackey until January 10, 1869, E. A. Mackey having acted as liquidating partner of Mackey, Fredericks & Co., from the time when they went out of business in 1858, until after the time of suit brought. N. W. Fredericks, however, denied in his testimony that it was agreed between the partners that E. A. Mackey should then act as liquidating partner.</p> <p>The plaintiff requested the court to charge as follows: “ That if they believe that Newton W. Fredericks became a member of the firm of L. A. Mackey & Co., under the written assignment of Nov. 1, 1855, and accepted the interest therein transferred, he is bound by all the terms of the assignment, and by accepting the assignment, agreed upon his part to pay any indebtedness then existing against said firm, and if they find that other members of the firm and the plaintiff in the suit consented to the agreement, the defendants became liable for the debt.”</p> <p>Answer. “If you should find that Newton W. Fredericks became a member of the firm of L. A. Mackey & Co., under the written assignment of November, 1855, and accepted the interest therein transferred, we say to ]mu that he is bound by the terms of that assignment; and this paper then having been brought before us, it is the duty of the court to interpret its meaning, counsel having requested us so to do. . . .We are asked to say to you that by reason of Newton W. Fredericks, taking his interest by virtue of this paper, he thereupon agreed on his part to pay any indebtedness then existing against said firm. '</p> <p>“We decline to charge you as requested on this point. We say to you that this paper will not bear any such construction. It does not mean that Newton W. Fredericks thereby agrees that the debts of the old firm shall be paid by the new one, of which he was then made a member; or that he, as a member, will pay the debts. There is nothing of that kind in the paper, as we understand it. If there is nothing in the case that will bind Newton W. Fredericks, except this paper, we say this paper is wholly insufficient so to bind him.”</p> <p>The court further charged as follows: “ This is the turning point in the cause: Did Newton W. Fredericks agree, or at any time assume to pay this note, or assent to the giving of this note? Now, an incoming partner is not liable for the debts of the firm unless he agrees to be, and of this you must have satisfactory proof. The presumption, in the absence of evidence to the contrary, is that he did not agree to pay the old debts of the firm. Unless, then, there is proof in this case which satisfies your minds that he did agree or assume to pay the old debts, or assent to the giving of this note, the presumption that ho did not so agree must prevail. The presumption is that he did not agree. That mast be removed from your minds by satisfactory proof.”</p> <p>It appeared from the record, as certified by the presiding Judge, that the jury retired at 4 p. M., and on the next morning, being out all night and rniable to agree, they asked the court, by a paper signed by their foreman, whether their verdict must be in accordance with the law as laid down by the court?' To which the court answered “Yes.”</p> <p>Verdict and judgment for the defendants. Plaintiff thereupon took this writ, assigning for error the refusal of the court to charge as requested, and the action of the court in sending a verbal message to the jury, as above stated.</p>

204. This was, in the court below, a certiorari directed to Aider-man W. K. Fearon, of the city of Lock Haven, to remove the proceedings in a suit before him in which D. R. Stoughton was plaintiff and the Pennsylvania Pulp Company was defendant. The alderman’s transcript‘showed that the sum demanded was $277.36, being the balance claimed to be due upon an account for labor and goods furnished by plaintiff to defendant.

<p>1. Tlie holder of a check cannot sue the bank upon which it is drawn unless the bank has either expressly or impliedly accepted the check. What acts upon the part of a bank are tantamount to acceptance is a question for the jury to determine under proper instructions.</p> <p>2. A bank is under no legal obligation to the holder of a check drawn upon it, to pay or accept the check, whether the funds of its depositor are sufficient to meet the check or not. But if the bank does not pay or accept the check on presentation, it is bound to refuse within the proper time; it has no right to receive and keep the check for an indefinite time (longer, it seems, than the next day at farthest), and then to refuse payment.</p> <p>3. A check was sent by mail from one bank, whose customer had deposited it there for collection, to another bank on which it was drawn with instructions to “ return it promptly if not paid.” It was received on' the day following its date, and at that time the drawer’s account was sufficient to pay the check. Three days later the drawee received notice from the drawer not to pay the check. The drawee accordingly caused the check to be protested on the day following, and returned to the bank through whom it had been forwarded for collection. The holder of the check having brought suit against the drawee bank for the amount thereof:</p> <p>SelA, that it was for the jury to determine whether or not the check had been accepted by the bank on which it was drawn.</p>

<p>A policy of fire insurance contained a condition that if the insured premises “shall be occupied or used so as to increase the risk, or the risk be increased by the erection or occupation of neighboring buildings, or by any means whatever, without the assent of this company endorsed hereon, then, and in every such case, this policy shall be void.” The insured premises consisted of a bam and farm buildings in the occupation of a tenant of the insured. In an action by the insured to recover for destruction of the barn by fire, the defendant was permitted to introduce evidence to show that at the time the policy was issued none of the farm operations were conducted by steam power, and that the tenant subsequently used a portable boiler and steam engine for threshing, which it was claimed, caused the fire.</p> <p>Held, that the evidence was properly received and submitted to the jury, with instructions that if they found that the introduction of steam power increased the risk, the plaintiff could not recover.</p> <p>Held, further, that it was immaterial whether the act of the tenant was with or without the knowledge or assent of his landlord, the plaintiff.</p>

<p>1. Where a feigned issue is awarded as ancillary to a suit or proceeding in the same court or in another court, the judgment in the feigned issue cannot be reviewed by writ of error until after final judgment or decree in the principal cause.</p> <p>2. Pending certain actions -of scire facias to revive judgments, the court awarded a feigned issue to try the question whether the assignment of said judgments to the use of plaintiff was absolute or as collateral security for money advanced by him to enable the defendants to compromise the judgment debts with the original plaintiffs. A verdict and judgment for plaintiffs having been entered in the feigned issue, the defendant therein sued out a writ of error to said judgment pending the said actions of scire facias.</p> <p>Held, that said writ of error was prematurely taken, and it was therefore quashed.</p>

<p>Error to the Court of Oyer and Terminer of Philadelphia county: Of January Term, 1884, No. 185.</p> <p>Indictment of Albert G. F. Goersen, for the murder in the first degree of Elizabeth E. Goersen, his wife. Plea, not guilty.</p> <p>The indictment was first tried in 1881, when the prisoner was convicted, but upon writ of error the judgment was reversed, and a venire facias de novo awarded: See Goersen v. Commonwealth, 3 Out., 388.</p> <p>Upon the second trial, before Ludlcw, P. J., the evidence was, in the main, similar to that given on the former trial. As recited in the charge of the court (to which' no exception was taken by either party) the material facts and evidence on this trial were as follows:</p> <p>There are a number of facts in this case, not seriously disputed, to which we briefly refer. The prisoner, a physician by profession, lived in the house of one Elizabeth F. Souder, No. 255 East Cumberland street, in this city. In that house also ¡resided a lady, the daughter of Mrs. Souder, whose name was Elizabeth E. Souder. Iu April, 1879, the prisoner married this lady, and thereafter appears to have lived with her in that house.</p> <p>On the 80th of March, 1880, late in the day, Mrs. Goersen became sick. This illness appears to have continued until the following Saturday night or Sunday morning, when she died. It may also be stated as a general fact in this cause that the mother of Mrs. Goersen, Mrs. Souder, was somewhat sick as early as January, 1880, and was being treated by the father of the prisoner, also a physician, until some time in March, 1880, when, he having died, the prisoner assumed the charge of the case. Mrs. Souder became very ill, and subsequently, on the 25th of March, 1880, died. Both of these ladies executed wills, and to these and their contents I will hereafter call your attention.</p> <p>The Judge then instructed the jury fully upon questions of law, and he reviewed the evidence on both sides as follows:</p> <p>As the presumption of law always is that a prisoner is innocent, the Commonwealth must affirmatively establish every point in the cause, beyond a reasonable doubt, and therefore in this case, the Commonwealth’s officers proceed to prove, as they allege, the following facts:</p> <p>(1) That Elizabeth E. Goersen is in fact dead. Although this fact is not seriously denied, yet the Commonwealth has proved by the evidence of Dr. John G. Lee, the coroner’s physician, that he made a post mortem upon the body of a female on the 5th day of April, 1880, which body was identified by Joseph A. Souder as the body of Mrs. Elizabeth E. Goersen. If you believe those witnesses, we must proceed to consider (2) the evidence by which the vital fact is sought to be established that a deadly poison was found in the body. Dr. Lee testified that, with what appears to be reasonable caution, he took portions of the body of Mrs. Goersen and delivered them to an expert chemist, Dr. Henry Leffmau. This witness swears that he subjected the contents of the stomach and a portion of the liver to seven distinct tests, and produced and exhibited to you the result of his experiment. In each there appeared a drug commonly known as arsenic.</p> <p>I think it unnecessary to go further into detail upon this branch of the case, but I call upon you to remember the explanation made of each of these tests, together with the cross-examination of the witness by the prisoner’s counsel.</p> <p>Indeed, the defence of the prisoner, so far as the death of Mrs. Goersen is concerned, does not seem to rest upon a denial of the presence of this drug in these remains and in this body, although the fact must be proved. Having thus, as is argued by the Commonwealth’s officers, established the death, and that deadly poison was found in the body, the prosecution proceed (8) to establish another most vital fact, to wit, that this poison produced this death. Both of the physicians declare that the arsenic found was administered in sufficient quantities to produce death, and that it did so produce the death of Mrs. Goersen.</p> <p>Both of the physicians testify to this fact, and both were subjected to searching cross-examination, the object being to show that other diseases might have produced death, and that the tests applied only to the presence of a poisonous drug, while other poisons arising from the diseased condition of the liver, and especialfy the kidneys, might account for the death. I leave all this evidence for your consideration, with the remark that the commonwealth must establish the fact that Mrs. Goersen was poisoned and died from the effect of poison by arsenic.. If you do not'so believe, there is an end of this case.</p> <p>(4) If you are satisfied of the fact of this death, and that it was produced by arsenic, you must now proceed to determine whether it was accidental or caused by self-murder; that is, •was it a case of suicide, or was it a murder committed by this prisoner. I shall have something to say hereafter concerning the first two causes of death referred to, when I come to consider the evidence for the prisoner. At the present time your attention will be directed to the evidence against the prisoner, wherein the commonwealth seeks to establish a motive for the deed, and such conduct and declarations of the prisoner as fix, it is contended, beyond question or doubt, upon him, and upon him alone, the commission of the crime......What, then, is the motive which it is alleged urged on the prisoner to commit this crime, if he did commit it?</p> <p>The theory of the commonwealth is that he desired to obtain possession of certain property, and to accomplish this purpose, it was necessary not only to destroy his wife, but her mother also.</p> <p>To establish this proposition, a deed is produced, intended to prove that the house No. 255 East Cumberland Street, was conveyed, on the 29th day of September, 1874, to Lizzie E. Souder, afterwards Mrs. E. E. Goersen. In addition to this, evidence is produced to prove that, although the legal title is vested in Mrs. Goersen, under a family arrangement, her father had an equitable interest in the property. The will of the father is- then placed in evidence, dated 24th day of November, 1876, showing what disposition he made of any estate he might possess, and this is followed by the production of the will of Mrs. Souder, dated 8th day of March, 1880, and of Mrs. Goersen, the wife of the prisoner, dated 2d day of April, 3880. All of which evidence, it is argued, establishes the fact that certain property would devolve upon Mrs. Goersen, who, by her last will and testament, devised and bequeathed the whole to her husband, the prisoner.</p> <p>I will here remark, with reference to this testimony, that the exact interest of Mr. Souder in the real estate does not appear, the evidence being that he contributed toward its purchase, but that Mrs. Goersen owned the greater portion thereof.</p> <p>It does not appear that Mrs. Souder had any other interest in the real estate, except possibly that which might arise under a possible construction of her husband’s will, and which amounted to a small contingent equitable interest. In any event, it was but a slight interest, limited to her life.</p> <p>Mrs. Souder did, undoubtedly, own some personal property, which was situated in the house in which the deceased died, and which Joseph A. Souder testified the deceased wife (upon some dispute arising between witness and Mrs. Goersen shortly before Mrs. Goersen’s death) declared that her “ mother gave to her the remainder of the things in the house,” and which with the interest Mrs. Goersen possessed, really passed to the prisoner under his wife’s will. I will refer hereafter to the view which the prisoner’s counsel take of this evidence.</p> <p>Having submitted this evidence, the commonwealth now proceeds to show that the conduct and declarations of the prisoner all point to the prisoner as the guilty author of this crime. In the order of time, evidence is produced to show that as early as March 25, 1880, Mrs. Souder, the mother-in-law of the prisoner, died; she had been sick for some months. On the 13th of April, 1880, her body was taken from the grave, and a post-mortem examination made.</p> <p>The son of the deceased and another witness both identify the body. She had been treated by the prisoner subsequent to the death of his father. Portions of her remains were given by the coroner’s physician, Dr. Lee, to the expert chemist, Dr. Leffman; these remains were subjected to the same seven tests which had been applied in the examination of Mrs. Goersen’s remains, and the same results followed, with the additional discovery of crude arsenic in the stomach, which was washed out by a proper process, and the result exhibited to you in court by the production of the identical arsenic then found.</p> <p>Unless desired by the jury, I will not recapitulate the testimony of these physicians upon the subject matter of their investigations, except to call your attention to the vital fact that both agreed that the post-mortem developed facts from which the opinion was formed, and expressly stated that Mrs. Souder died from the effect of poison by arsenic. The defendant’s counsel cross-examined these witnesses at great length, the object being to prove that other causes might have produced this death, especially as to Mrs. Souder’s ease, whose death, it is argued, might have been accidental, and that the tests applied to her remains had not exhausted the subject: and it was also argued that Mrs. Souder might have incautiously taken an imperfectly made dose of homoeopathic arsenic, not properly mixed; while I may as well state here as elsewhere that Dr. Korndoerfer was called by the prisoner to prove, first, that for a disease such as Mrs. Souder suffered from, she might be treated with arsenieum, and then described the character of that drug, its strength and course of manufacture, as practised by homoeopathic physicians. I leave this testimony as a whole to your consideration, remarking that if you are not satisfied that Mrs. Souder died from the effect of arsenical poison, an important link in the chain of evidence drops out of the case.</p> <p>Coming closer to the date of the death of Mrs. Goersen, evidence is produced to prove what Dr. Goersen actually did while attending his wife in her last illness. The most important evidence upon this point, and of the condition of Mrs. Goersen to the time of her death, is contained in the testimony of Miss Sarah E. Souder, and it is so important that I will read extracts from it for your information. (Reads from notes of evidence.) In so far as the testimony of this witness in relation to the tumbler of medicine is concerned, it is corroborated by the evidence of Mrs. Eliza, Wallace and her daughter, Susan L. McVaugh, who declare that the one observed two tumblers of medicine, and the other that one tumbler contained a clear liquid, and the other something mixed up like magnesia, and white. Dr. John R. Haynes testifies that he was called to see Mrs. Goersen on Friday, April 2, 1880. Dr. Goersen himself called at the house of a brother of this witness, and then met the witness; he accompanied him to his residence, and there saw the sick woman, Mrs. Goersen. The doctor inquired of the 'condition of the patient, when he was interrupted by the prisoner with the remark that “ two weeks before she had taken cold, and had had diarrhcea.” The statement was also made to Mrs. Lambson that Mrs. Goersen had taken cold at her mother’s funeral. The patient was ver3r ill, and her condition was fully described by the physician. A nurse was ordered, a certain prescription left, containing one grain of morphine, turpentine ordered, and other remedies. The turpentine was never administered as directed, nor do I remember an evidence of the administration of the other remedies, except that the prescription was obtained. (Reads evidence of Dr. F. L. Haynes and Dr. R. W. Haynes.)</p> <p>In addition to the above alleged evidences of indifference, disregard of obvious duties, and the implied administration of a poison, evidence is presented, intended to prove that an effort was made to obtain a death certificate, without which the body could not be buried, and that afterwards, when an effort was made by the physician whose certificate it purported to be, to obtain it, it was not to be found, and was concealed by the prisoner.</p> <p>The first appearance in order of time of this alleged desire to obtain this certificate appears in the evidence of Dr. John R. Haynes, who declares that when he saw the prisoner first, at or near his brother’s office, and as Dr. Goerson and Dr. Haynes walked together to the house of Dr. Goerson, the doctor remarked, “ I do not think it would be the correct thing to give a certificate in the case of one’s own wife’s death.” To which Dr. Haynes replied, decidedly not, etc., etc. Over the body of his wife, the witness declares that the doctor, after, among other things, objecting to the turpentine cloths, almost in the same breath “ asked me if, in case of death, I would give a certificate.” “I, attributing it to his semi-intoxicated condition, replied yes,” says the witness, “ in order that he might not repeat the question.” After the death of Mrs. Goersen, Dr. Francis L. Haynes declares Dr. Goerson called and asked him “ at least six times for the certificate.” This request was refused, when the prisoner turned and remarked, “I’ll get it from your brother.”</p> <p>A certificate, signed with the name of Dr. John R. Haynes, was subsequently obtained, containing the name of “Lizzie. E. Goersen; date of death April 4th; cause of death, gastritis.” Raymond Steinecke declares that his cousin, the prisoner, sent him to Dr. John Haynes for thq certificate, giving him a card with something written on it, which he did not read, and which Dr. Goerson wrote. This witness saw the housekeeper of Dr. John R. Haynes, Elizabeth Slack, who signed that name J. R. H., to the certificate, gave it to the witness, who handed it to Dr. Goersen. Sarah E. Souder states that this certificate was handed to Dr. Goersen by Raymond Steinecke, and that the doctor put it in his pocket. Mrs. Margaret Lambson declares the “doctor seemed to bo glad when the messenger brought the death certificate; ” he said, when it was given to him, “good; I can now put her away without any trouble, as I have two, one of my own and one from Dr. Haynes.” When William B. Scull, the carriage driver of Dr. Haynes, was sent for the certificate, he declares the following took place: (Testimony of William B. Scull read.) Sarah E. Souder testifies that when the boy came for this certificate the prisoner told her “he was lying on the sofa, pretended to be asleep, and hid the certificate in the sofa.”</p> <p>When a post-mortem of the body of Mrs. Goersen was suggested by his mother, he said, “it would cost money.” And when his mother replied, “ it makes no difference; I am able to pay it, and it will stop people’s talk,” he answered, “ all right.”</p> <p>It is also contended by the commonwealth that the prisoner and his wife did not live happily together, and Mrs. Mary M. Pierson is produced to prove the fact that, on one occasion at least, a conflict occurred, and that she heard loud and angry voices, and that “she cried, let me out; he struck her, for I heard the blow; there was a fall, and something struck the •coal scuttle.” This witness is in part corroborated by her mother.....</p> <p>As a final exclusion of a conclusión, the commonwealth calls a number of witnesses, said to include every person who visited the house certainly from Tuesday evening to the date of the death, to prove that no one of these administered arsenic in any form to the deceased; while the medicine chest of the prisoner, on being examined, did not contain the arsenic bottles, the prisoner explaining that he had taken them out to get them filled, or some such excuse.</p> <p>The commonwealth’s officers argue that a perfect chain of evidence has been established, every link of which has been proved by independent and competent testimony, each fact being consistent with every other, and with the main fact sought to be established; that the inferences to be drawn are natural, reasonable, and to a moral certainty certain, and above and beyond' all that the theory of the guilt of this prisoner excludes every reasonable and fair hypothesis or theory of his innocence. Thus establishing a complete chain of evidence, based strictly upon the severest tests which can be .applied to circumstantial evidence.</p> <p>What answer does the prisoner make to this grave charge ? His defence, in addition to the efforts made by his counsel to shake the force of the evidence of the commonwealth by.cross-examination, and thus to attack its truthfulness, and after an extended argument intended to overthrow the theory of motive, by proof that the interest in the property of the father was nothing of practical value; that Mrs. Souder might have died from an improperly mixed dose of arsenic, if that drug killed her at all; that the property bequeathed and devised to Mrs. Goerson, by her mother, was so insignificant as to amount to nothing and by additional proof that after his father’s death the prisoner was in receipt of certainly an income of from $20 to $40 a week, and was therefore able to sustain himself; also endeavors to establish his innocence in various methods.</p> <p>(1st.) It is contended that a number of the commonwealth’s witnesses have been directly contradicted in material points.</p> <p>a. As to the direction to obtain a death certificate for Mrs. Souder, a witness, Nicholas Biesiegel declared that he heard Mrs. Goersen herself direct, “ Albert you had better go for a doctor; my mother is very sick, and in case she dies you cannot give a certificate.” This occurred early in March, you will remember, before, of course, the death of Mrs. Souder, and a length of time before Mrs. Goersen died.</p> <p>b. While the evidence concerning the method by which Dr. Goersen obtained Dr. Haynes’ certificate of his wife’s death has not been disputed, a contest arises as to the method in which the commonwealth contends it was afterwards secreted, Sarah E. Souder stating that the doctor informed her he pretended to be asleep when the messenger came for it. And Mr. Buckner, that “ I think he told me it was in the sofa back; don’t recollect if he said he did do it or not.” The mother of the prisoner declares that, “ when the boy came for the certificate, Albert was asleep; I looked for the paper in his pocket, but could not find it; I did not wake up Albert, but told the boy to call again in the morning.” Nettie Miller also says, “yes, I remember the boy coming for certificate; he was lying-asleep ; we thought he was.”</p> <p>So, also, an effort was made to contradict Sadie Souder in relation to the doctor being present on Friday in the sick-room, but on cross-examination, or on being recalled, she corrected her statement. Again, a witness for the commonwealth having testified that, upon the delivery of the certificate of Mrs. Goer-sen’s death, the prisoner, with certain manifestations, exhibited by the witness, Mrs. Lambson, on the stand, by gestures declared, “ good; I can now put her away without any trouble, as I have two, one of my own and the other of Dr. Haynes.” The defence called the mother of the prisoner to prove that this was not the case. She says: I was present when R. Steinecke returned with the certificate; he said, here is the certificate ; he wrapped it up and put it in his pocket; lie did not say‘good;’ he did not say such a thing.” Raymond Steinecke, being also called, said that when he gave him the certificate he put it in his pocket, and did not say good; he made no remark at all.</p> <p>These are the chief contradictions upon this point; there may be others which do not occur to me, but you must weigh each and all, and you must remember what each said on crocsexamination, in so far as it is possible, the effort being to arrive at the truth by a comparison of the statements made, the time fixed, the persons present, and the manner of each witness under examination.</p> <p>e. Another apparent contradiction arises out of the conduct of the prisoner in relation to the necessity for a post-mortem. Sadie E. Souder testified, in substance, that the prisoner said to her, “ I should go to my Uncle Charlej^’s and tell him not to notify the coroner. The prisoner’s mother had that afternoon said it was best to notify the coroner; I told him it was too late, and he said ‘all right.’” Mrs. Goersen, mother of the prisoner’, upon this point says: “Neighbors came and told me what was said; I told my son that if he was clear of that what they say, they should send for the coroner; he said ‘ all right, I should send for him.’ ” Dr. Lee, upon cross-examination, had said that the prisoner had remarked to him, “ I don’t wish it done. He shed tears, and seemed to regret his wife’s loss......”</p> <p>d. Another and minor contradiction as to what Mrs. Goer-sen had eaten on the Tuesday when she was taken sick. Mrs. Goersen declares that she did not eat peaches. Sallie Souder, I think, says she did, but afterwards stated, “I think I made a mistake.” So a student in Mr. Randall’s office, who took notes at the former trial, testifies that Dr. P. Haynes did say that Dr. Goersen was in a semi-intoxicated condition when he saw him during the week of his wife’s death. The doctor had said upon this trial that he did not remember saying Dr. Goersen was in a semi-intoxicated condition, and added, “to the best of my recollection he was sober.”</p> <p>Upon these several points of contradiction, and upon any others which may occur to you, I again repeat, you must weigh all this evidence upon both sides, upon the principles heretofore stated, and, in so far as they are at all material, determine where the truth lies.</p> <p>(2d.) The second branch of this defence is the existence of arsenic under the control of the deceased, a tendency to great depression of spirit, which, accompanied by proof of an attempt to take poison, would lead to a theory of death caused by suicide. Just at this point I remark that, assuming as proved the fact that this death resulted from arsenical poison, a fact to be found by the jury, I do not find in this evidence a particle of proof (although that fact is for the jury to determine) that this death resulted from a pure accident. If Mrs. Goersen swallowed the poison, it must have been either because it was self-administered, recklessly administered, or deliberately given by some one.</p> <p>The defence, to establish the fact that Mrs. Goersen had possession of the deadly drug, and attempted to use it, calls a witness, Mr. Frank H. Honig, whose evidence I will read. (Honig’s evidence read.) The jur}>- will remember, I am sure, the searching cross-examination of this witness, wherein he stated how he had been mistaken in certain points, especially in regard to time, and, generally, the effort of the district attorney to shake the credit of the witness.</p> <p>There is no exact evidence of-what this bottle contained, other than the cross-bones and skull, and a color; nor, indeed, is there evidence of the kind of medicine she 'took from the closet, if it were so taken. So, also, to the same effect, is the evidence of Mrs. Getz, the old lady examined yesterday, and who described the box and bottle, the cross-bones and skull, and who was subjected to a severe cross-examination, the result of which and of her testimony is for you.</p> <p>If the jury believe the -witness, how far does that fact, coupled with others in a moment to be mentioned, tend to establish the theory of suicide ? That is the vital question upon this branch of the case, and the jury must decide it. To throw light on this subject, evidence was produced, intended to establish, I take it, a suicidal intent upon the part of Mrs. Goersen. What is this evidence ?</p> <p>That Mrs. Goersen was distressed by her mother's death seems to be both true and natural. How does the evidence establish anything beyond this ? Let us look fairly at it. To Sallie Souder she said, “ I will soon follow your grandmother.” And to her husband, “Albert, we will plant flowers on mother’s grave this summer.” At home she took certain letters from the second-story room (which appear to have belonged to her mother) and destroyed them. She gave certain articles to the witness, Sallie Souder, and also to another woman, and the ear-rings to Sallie after her death. On cross-examination this witness said “ she was going in black, and would not need them any more.” When Mr. Krein drew the will, among other things she said, “You don’t know what may happen; better have it done with.” To Harriet R. Kendle she said, “ It matters but little; I won’t be long here anyhow.” To the undertaker, Mr. Horsch, she said “she would not live long after her poor mother, anyhow......”</p> <p>(3d.) The third branch of this defence consists in the production of evidence intended to prove, in opposition to the proof and theory of the commonwealth, that Dr. Goersen lived pleasantly with his wife, and treated her with that kindness and consideration which is always due to a woman so situated, and that the will finally made by her was an additional proof of her affectionate regard for him.</p> <p>Turning first to the last point named in the above sentence, I call your attention to the evidence of the witness, Charles B. Krein, who narrates what occurred at the time of the directions given for, and the actual execution of the will. (Evidence of Krein read.) In addition to this, a number of witnesses are called, who swear to the fact that the doctor treated his wife kindly. Among these witnesses I name the following: Bertha Goersen, who says, “I never heard her complain to anybody of his ill-treatment.” John and R. Steinecke: “ He treated his wife kindly and affectionately.” To the same effect is the evidence of Prank H. Honig, Nicholas Beisiegel, Mrs. Lambson, I think his mother, also, and possibly others, Avhose names may have escaped my notice.</p> <p>Two witnesses are also produced to rebut the theory of the commonwealth on this point, and who say, subject to cross-examination, that one of them did not see marks and bruises, and the other that they did not exist on her, Mrs. Goersen’s, person. Louisa Rotheimer declares he always treated her good. “Albert took'her around the neck and hugged her, right after the marriage; he showed love to her.”</p> <p>(4th.) The fourth and last point of defence to which I refer is that of intoxication. As a general principle, voluntary intoxication is no excuse for crime. In a case of this nature, it sometimes reduces the grade of the offence. Where one drinks until his condition is such that he is attacked with a disease called “ delirium tremens,” he is not a responsible being — he is truly insane. So where, by the long-continued use of liquor, a human being approaches a condition of idioey, with a mind so weakened as to be unable to form a design to take life, or to understand the nature and character of his own acts, and cannot distinguish between right and Avrong, he is not a responsible being. These are general conditions of the mind, produced by long-continued abuse, and ending in a practical overthrow of the reasoning powers. From whatever cause this condition of things exists, the law is that a human being reduced to a condition which renders him like an insane man or an idiot, is rather an object of pity than the subject for punishment.</p> <p>But the law has never declared that a man may nerve himself by the Aroluntary use of liquor so that he may kill another, or that by the like voluntary use of liquor, Avithout a specific intent, he may put himself in a condition to do any reckless act, and then claim to be excused because of his intoxication.</p> <p>In the first instance above named the crime would be murder of the first degree, and in the second instance, murder of the second degree. This distinction arises because of the benevolent provisions of our Act of Assembly.</p> <p>To constitute murder of the first degree there must be a “wilful, deliberate, and premeditated” intent to kill. And although death by poison is declared to be murder in the first degree, yet it is evident that unless it is administered with an intent to kill, that is, with a wicked and malevolent purpose, the crime is not murder of the first degree. As where it is so administered by accident, mistake, or without what may be called an immediate criminal intent, but with a recklessness begotten of mental imbecility produced by liquor, and which deprives its victim of the power of forming a deliberate intent. “Where this ingredient is absent,where the mind, from intoxication or any other cause, is deprived of its power to form a design with deliberation and premeditation, the offence is stripped of the malignant feature required by the statute to place it on the list of capital crimes; ” and neither courts nor juries can dispense with what the statute plainly requires.</p> <p>If a prisoner, for the express purpose of committing the crime, drinks to intoxication, or if, without an express purpose, and notwithstanding his condition produced by drink, he had a knowledge of right and wrong, a power of discrimination and judgment, knew his moral obligations and his relations to others, and with wilful deliberation administered poison, with a knowledge of its deadly character, he is clearly guilty of murder of the first degree.</p> <p>If without wilful premeditation and deliberation, he wantonÍ3r and recklessly administered a drug, the effect of which was to kill, the offence would be murder of the second degree.</p> <p>The result of our deliberations may be summed up as follows : Wherever a person has sufficient mental capacity to distinguish right from wrong, to understand and appreciate what lie does, and to judge of the probable consequences of his acts, the law holds him criminally responsible for them, although (from drink) ho may in some respects be weak minded — -the degree of criminality (murder of the first or second degree) depending upon the judgment the jury pronounce upon the evidence on the question of the power to form a wilful, deliberate, and premeditated design. Of course, if the jury find such a condition of the mind to exist as to destroy capacity to distinguish between right and wrong, or which disables a prisoner from understanding the nature and character of his act, and its probable and ordinary consequences, the law will not hold him criminally responsible for them.</p> <p>The evidence upon this branch of the case establishes the fact that the prisoner was undoubtedly a drinking man; even the commonwealth’s witnesses declare that they observed the prisoner while under the influence of liquor at times. Dr. J. II. Haynes speaks of him, at the bedside of his wife, as semi-intoxicated; and, on cross-examination, “like a man under the influence of opium.” Dr. F. L. Haynes said, “I did not smell his breath, but he walked naturally. I saw no indications of drunkenness, but I can’t swear he was sober.” I. Hampton Moore was afterwards called to contradict this witness, and said, “ that at the last trial, the doctor had said the prisoner was in a semi-intoxicated condition during the night of his wife’s death.”</p> <p>Mrs. Lambson says, “he was under the influence of liquor on Friday night, and had drink in him on Sunday.” John F. Hyde declares, when he saw him, “he seemed to have been drinking.” And so also does Kerbaugh declare, when he said, “ that when Goersen attempted to push them down stairs he was in liquor.” In addition to this evidence the prisoner produces a number of witnesses to prove his intoxicated condition. Among others may be mentioned his mother, who says, “ on Saturday I visited him in my son’s house; I saw him in the afternoon, and he looked like a crazy man.” Robert Adams declared, “ I saw him a week before his wife died; he was pretty much under the influence of liquor; remember him on Friday night in my place; he got one or two drinks, and I refused him any more, because I thought he had enough.” Bertha Goersen, the sister of the prisoner, said, “he was drinking during day and evening the week just before his wife’s death.” Nettie Miller says, “ I saw Albert at his mother’s occasionally. I did not know what to think of him, he acted so queer and noisy.” She added again, “ he drank a great deal,” and then described the unlocking of a closet door, and the taking out of a bottle, a scene which, I think, the prisoner’s mother had already described, or another very like it. Louisa Rotheimer also says, “ he was always drunk; ” while Louisa Ratzkey describes the occasion of his visit to her house on Friday before his wife died, when he prescribed medicine for her sick child, which, because of his condition, she refused to use and burned. And John Bowder declared “ he was full all the time.”</p> <p>I thus review the testimony for the prisoner on this point, certainly as to most of the witnesses who testify upon the subject, and if I have omitted any, your memories will supply the unintentional omission.</p> <p>The commonwealth answers this defence, not only by cross-examination of these witnesses, but by the production of witnesses, who describe their view of the actual condition of the prisoner during that week; one or two say he was sober ;• the commonwealth also point to his acts, and to his general conduct, both as a practitioner of medicine, from and immediately after his father’s death up to the date of his wife’s death, and also to the fact that, notwithstanding this condition of intoxication, as is alleged, he was the active agent in producing two deaths, and not one only. And, it is argued, that a condition of mind which would either modify the degree of crime or reduce the prisoner to a state of mental imbecility, which would render him an irresponsible agent, ought to extend over and embrace the period of time, from before the death of Mrs. Souder, to that of his wife.</p> <p>Under the principles heretofore stated, you will observe, if you believe the prisoner to have labored under any abnormal condition of mind produced by liquor, that the true point to determine is the extent of this condition.</p> <p>Before concluding this review of testimony, I ought to call your attention to the evidence of the commonwealth in rebuttal, wherein Mrs. Getz was contradicted by Miss Souder, who declares she was not in Mrs. Goersen’s house at the time she fixed in her testimony, and also to the evidence of the same witness and of Mrs. McVaugli, who, to affect the credit of the witness, Frank Honig, declares after the funeral, that he said to the first, “ Al. has done this to get the money,” and to the last, “ if all had been right, they both would have been here yet.”</p> <p>I have thus, at some length, endeavored to place the vital points of this case, upon both sides, before you. It is too much to say that every particle of evidence has been referred to, but I venture to declare that every essential part of it, and each branch of the case, has been commented upon.</p> <p>Verdict, guilty of murder in the first degree. The defendant moved for a now trial, for the following reason, among others :</p> <p>1st. “ The separation of the jury before verdict, and their misconduct in permitting a stranger to visit the jury room, and converse with one or more of the jurors.”</p> <p>The facts established, under oath, at the hearing of the argument upon this motion were these: On Sunday evening, during the recess of the court, a juror was taken suddenly very sick; his condition appeared to be serious; and, in great alarm, the foreman of the jury summoned the officers in charge, and requested them to obtain medical aid. One officer immediately went for a physician, and produced Dr. Oadwallader, one of the coroner’s physicians, who, with the officer, went to the bedside of the patient, who had been placed in an adjoining room, and prescribed for him, and on Monday morning, about 9 A. M., again saw the juror, and again administered to his wants. Not a word on any subject was spoken to the eleven other jurors, and not one word said by anybody to the sick juror, except about the condition of his health.</p> <p>The court, in an opinion overruling the motion for a new trial, said, in reference to the above reason:</p> <p>Possibty under the rigor of the ancient law something’ might be said in support of the reason assigned. When a juror had expressed any opinion upon a case, no matter though he swore that it would not affect his judgment, he could not be sworn; and if he knew nothing about the case, and was sworn, he was obliged to suffer imprisonment without “ meat, drink, fire or candle; ” and finally, if an agreement was not reached before the adjournment of the court for the term, he must follow the judge around his circuit, until, by a verdict, justice was satisfied, and the jury discharged.</p> <p>When a case could be tried at one session of the court, there might be a reason for the rule, but now, when under our practice, notes of evidence must be taken of examinations and cross-examinations of witnesses, exceptions made and argued, and speeches be addressed to the jury, it is evident that the application of the rule would be absurd. Long ago, in the year 1822, our Supreme Court held that cases of absolute necessity might arise where the court might discharge a jury, even in a homicide case. Said Tilghmah, C. J.: “ There is, indeed, one principle which cannot be contradicted, and that is, that the jury may be discharged in cases of absolute necessity ; but what constitutes that necessity has been ascertained only in the particular eases that have arisen: ” Commonwealth v. Cook, 6 S. & R., 579. Commonwealth v. Clue, 8 Rawle, 497, follows the lead of the above cited case, and while the prisoner was in that cause discharged, it was because temporary exhaustion might have been relieved by appropriate nourishment. It is a curious fact that, in this very case, “ a respectable physician ” was ordered to visit the indisposed juror; it does not appear that he was sworn, and no objection whatever was taken to the visit.</p> <p>In Peiffer v. Commonwealth, 3 H., 468, the jurors, under an agreement of counsel, did not only and actually separate, but went to their homes for days together.</p> <p>My brother, Allisoh, P. J., speaking for the court of which I was a member, declared, that while separation of the jurors after they had been sworn in a capital case, will authorize the court to set aside a verdict, the separation must be clear and substantive: Commonwealth v. Thompson, 4 Phila. R., 215.</p> <p>From an examination and study of these authorities, we may deduce the following principles, by which we must be guided:</p> <p>A necessity may exist which is so overwhelming that the court may actually discharge the jury, and remand a prisoner for another trial.</p> <p>True, the case must be an extreme one, or the prisoner, by an improvident act of the court, may himself be discharged, and just because this is the law, a fortiori, a minor necessity may also exist which requires the court to attend to, and if possible, relieve the physical wants of a juror, because the necessity may become evident, and yet not such as would warrant a discharge of the jury. What this necessity may be depends entirely upon the facts of each case. If the court is in session, of course the presiding judge must be appealed to, and so, also, if he is within calling distance.</p> <p>Suppose, however, upon a Sunday, the judge cannot reach the court room in less than half an hour, must a juror, apparently extremely sick (as in this case), die? A fit of indigestion may be rapidly relieved, but cases on record prove that it may also speedily prove fatal.</p> <p>The true and common sense rule would seem to be, that the officers must at once act, subject to the general orders of the court, and also the necessity of the case. If it appears at anytime that by mere negligence the thing was permitted, or by-artifice an effort is made to circumvent justice, or that no necessity existed, or that, even in this last case, the juror or jurors, officers or physicians, conversed about the case on trial, the verdict should at once be set aside. I would also require, in every ease, affirmative evidence, under oath, of every fact which would justify the interference of the officer and physician, the absence of any conversation, except concerning the health of the juror, and the presence of what at least appeared to be an overwhelming necessity.</p> <p>Tested by these stringent rules, I am satisfied that nothing was done in this ease which I would not have specially ordered if I had known of the facts, and that every material circumstance has been established in open court, by an oath, which justified the visit to the juror in the room in which he was confined in bed. I am not willing, for the cause assigned, to set aside this verdict. No legal separation took place, and there was no misconduct of a “stranger” in the jury room, and, what is more important, there is here no stretch of judicial authority, and no injustice whatever, in the slightest degree, done to the prisoner.</p> <p>I shall, however, direct the reason filed, and all the evidence taken, to be affixed to the record, so that if the supreme tribunal sees fit to examine the point, every fact shall be before it, together with my judgment thereon.</p> <p>Sentence of death was pronounced, whereupon the defendant took this writ of error, and filed the following assignments of error:</p> <p>1. The court below was in error in permitting the Commonwealth, under an offer made by the district-attorney, to introduce evidence of a separate and distinct offence from that for which the prisoner was on trial. [The offer was as follows: The Commonwealth proposes to show by the testimony of Dr. Lee and other witnesses that Mrs. Souder came to her death •a few days before the death of Mrs. Goersen, by arsenic, .administered by the prisoner while prescribing for her during an attack of illness, and while she was residing with the prisoner and his wife; that the arsenic administered to Mrs. Souder was of the same description as that found in the stomach of the prisoner’s wife; that the poison was administered to Mrs. Souder and Mrs. Goersen in pursuance of a design on the part of the prisoner to obtain the property, real and personal, of Mrs. Souder and Mrs. Goersen, a portion of which was derived under the will of John F. Souder; to show the purpose and intent of the prisoner, and-the system by which that purpose was to be accomplished, and the connection of the death of Mrs. Souder and Mrs. Goersen with the said purpose and intent, and also to rebut the theory that the death of Mrs. Goer-sen was the result of accident or suicide, or of the negligent or ignorant use or administration of arsenic, by either the deceased or the prisoner.]</p> <p>2. In overruling the motion of prisoner’s counsel to strike out all the testimony relating to the sickness and death of Mrs. Souder, as it did not come up to or meet the offer of the district-attorney, under which it was admitted.</p> <p>8. In permitting the Commonwealth, for the alleged purpose of connecting the deaths of Mrs. Souder and Mrs. Goer-sen as part of a system or common purpose and thus to show motive for the crime on trial; to prove the existence of an equitable title in Mrs. Souder to the real estate owned by Mrs. Goersen under a secret parol agreement not brought home to the knowledge of the prisoner.</p> <p>4. In overruling the motion of prisoner’s counsel to strike out the testimony óf J. Fletcher Budd, it having failed to fulfil the offer under which it was admitted, to wit, to prove an equitable title by parol agreement.</p> <p>5. In overruling motion of prisoner’s counsel to prove all the circumstances connected with the making of Mrs. Goer-sen’s will, the conveyancer’s conversation with the deceased and the prisoner in reference thereto, at the time.</p> <p>6. In permitting the district-attorney to ask, on cross-examination, an irrelevant question of a witness, for prisoner (Honig), for the purpose of contradicting liim afterwards, and thus discrediting his character for veracity.</p> <p>7. In overruling prisoner’s offer to prove that deceased was in the habit of taking arsenic ten years prior to her death.</p> <p>8. The evidence in the case does not disclose the existence of the necessary ingredients to constitute murder in the first degree.</p> <p>9. By the separation and misconduct of the jury during the trial, the prisoner was deprived of the rights guaranteed him by the constitution of this Commonwealth and by the constitution of the United States.</p> <p>The following additional assignment was filed at bar.</p> <p>10. In refusing the offer of counsel for prisoner to prove that Dr. Goersen, Sr., the father of the prisoner, before his death, told him Mrs. Sonder could not recover, but that the sou should continue do give her ciña arsenioum and other medicines.</p> <p>(The several assignments contained references to the pages of the printed testimony.)</p>

<p>1. A. claiming to be a creditor of B.’s estate, filed exceptions to the executor’s account and procured the appointment of an auditor to pass upon them. Before the auditor, she claimed to be entitled, as creditor, to $123, for which the executor asked credit as having been paid by him to the sole legatee. For the avowed purpose of proving that she was a creditor, A. gave in evidence a note in her favor, drawn by B. in her lifetime, and then claimed that having made out a prima facie case, the auditor, under the terms of his aj:>pointment, could go no further, but must report the executor’s account irregular. The auditor, however, admitted evidence, produced by the executor, to show that the note had been paid, and this fact having been established, the auditor reported that A.’s exceptions should be dismissed. This report was confirmed by the court, and a decree made accordingly. On appeal from this decree :</p> <p>Held, that there was no error; that if A. had shown by the executor’s account itself, the improper blending of distribution and administration and then rested, she might have claimed the surcharge of the credit to which she excepted; but by voluntarily tendering the issue, which was accepted by the executor, and which resulted in establishing the fact ■ that she was not a creditor, she opened the way for proof that she had no standing in court.</p> <p>2. The approval and confirmation of the auditor’s report, by the court below, cured whatever irregularity there may have been in the auditor’s passing upon the matters not within the submission to him.</p>

<p>Appeal from the Orphans’ Court of Snyder county: Of January Term, 1884, No. 51.</p> <p>Appeal of Michael B. Holman from a decree of said court, distributing the proceeds resulting from the sale of the real estate of William G. Herrold, deceased.</p> <p>Before the auditor (John A. Cron miller, Esq.) the following facts appeared: About the year 1850 Abraham Blasser died seised of a large tract of land in Union county.' In 1851 partition was made of said land by the Orphans’ Court of Union county, and it was decreed to William G. Herrold, in right of his wife, Mary, one of the heirs of Abraham Blasser. Thereupon Herrold entered into a recognizance with two sureties in the sum of $17,100, to secure the shares of Jacob Blasser and Elizabeth Koerner (formerly Blasser), other heirs of Abraham Blasser.</p> <p>In 1855 Snyder county was created, by a division of Union county, and the aforesaid real estate was all included in Snyder county.</p> <p>On August 10, 1877, Wm. G. Herrold and Mary, his wife, executed a mortgage of all their lands, including the above, to Michael B. Holman. On this mortgage a scire facias was subsequently issued, and judgment obtained for $8,355.66 on September 29,1881.</p> <p>On October 81, 1879, Herrold confessed judgment on the recognizance aforesaid in the Court of Common Pleas of Snyder county in favor of the commonwealth suggesting Jacob Blasser, for. the use of Mary Herrold, for the sum of $7,462.44; and on November 13, 1879, the same judgment was entered by confession in Union county.</p> <p>Win. G. Herrold died intestate on February 10,1880, seised of several tracts of land which were heavily encumbered. An order was granted his administrator by the Orphans’ Court to sell all of said lauds for the payment of his debts. Under this order the lands wore sold, including six tracts, numbered from one to six, which were the lands covered by the above partition and bound by the recognizance. The sales thus made were confirmed by the court, except as to tract No. 1. Concerning this the administrator returned that it had been sold to Mary Herrold, widow of the decedent, for $6,000, she claiming to be first lien creditor by reason of the judgment on the recognizance above mentioned.</p> <p>Exceptions were filed to this return, and, upon petition of Michael B. Holman, mortgage creditor as aforesaid, an issue was awarded by the Orphans’ Court to ascertain whether this lien of the recognizance had been paid.</p> <p>In the meantime the administrator filed his account, and, the proceeds of the sales coming before the auditor for distribution, he found, upon the above facts, that the recognizance was a prior lien on said tracts Nos. 1 to 6, which were bound by it, and that the judgment thereon must be first paid out of the fund produced by their sale, subject, however, to the decision of the court upon the said issue awarded to determine whether her lien had been paid.</p> <p>Exceptions were filed to this report by Michael B. Holman.</p> <p>Meanwhile the issue awarded to test the validity of the claim of Mary Herrold was settled in her favor.</p> <p>On motion of Holman, the court then recommitted the report to the auditor to ascertain and report whether the lien of Mary Herrold’s recognizance was indexed in the judgment index book in Union county, where it was originally entered, and to make distribution accordingly. As to this, the auditor 1 reported that the proceedings in partition in 1851 had been duly recorded and indexed in the Orphans’ Court docket of Union county; that there was no such book as a judgment index book in the office of the clerk of said court, so there could be no entry therein; that the record did not show that tlie recognizance was ever certified from Union to Snyder county prior to 1879, nor was it ever entered on the judgment index or lien docket of Snyder county as a recognizance, but only as a judgment on the recognizance, and this only on October 81, 1879; that § 8 of the Act of April 22, 1856 (P. L., 532), provides as follows: “That the lien of no judgment, recognizance, execution levied on real estate in the same or another county, or of writs of scire facias to revive or have executions of judgments, shall commence or be continued as against any purchaser or mortgagee, unless the same be indexed in the county where the real estate is situated, in a book to be called the judgment index, and it shall be the duty of the prothonotaryor clerk forthwith to index the same according to priority of date, and the plaintiff shall furnish the proper information to enable him to perform said duty.”</p> <p>The auditor further reported that, in his opinion, this Act applied to recognizances in the Orphans’ Court in partition; that the recognizance upon which Mary Herrold’s judgment was based, not having been indexed in the county where the real estate was situate, in a book called the judgment index, as required by the Act, had lost its priority, and was not a lien, as against Michael B. Holman, a mortgage creditor.</p> <p>Mary Herrold filed exceptions to this report, which were sustained by the court, Bucher, P. J., delivering the opinion, on the ground that the Act of 1856 was inapplicable to Orphans’ Court recognizances taken in proceedings in partition, since they are in the line of title, and must be looked for there by judgment creditors and purchasers; and that, therefore, this recognizance was a prior lien as against the Holman mortgage. The court, therefore, entered a decree overruling the exceptions filed to the administrator’s special return as to tract Ho, 1, sustaining the exceptions to the auditor’s second report, and directing the fund to be distributed in accordance with the first report. Whereupon Michael B.. Holman took this appeal, assigning for error the decree of the court.</p>

<p>1. A., the owner of ooal lands, leased the same for a royalty of ten cents a ton on all coal mined. In liis will, after reciting said lease of coal lands, A. provided as follows: “I direct that after my death my executors shall take charge of the same and from the proceeds thereof first give to my wife, Lydia Gearhart, aforesaid, an ample and sufficient support while she may survive my death, and then they shall divide the remainder equally among my children, share and share alike.” The lease was afterwards conveyed to B. and then to C. The widow and certain of the heirs by separate deeds also conveyed their respective shares of the royalties to C. All of C.’s interests, both in tire lease and tlie royalties, were afterwards acquired by D. The trustee under A.’s will filed a bill in equity against B. G. and D. to compel a discovery of the amount of coal mined by them, and an account for the royalties due. The respondents filed an answer denying liability to account, on the . ground that the right to receive the royalties was vested in C. The Master to whom the cause was referred, reported that under the will there was a continuing trust both for the widow and children, and that the conveyances of the widow and heirs were therefore void. Exceptions to this report were dismissed and a decree entered that the trustee collect the moneys accrued under the lease, and, after first providing for the support of the widow, that he retain the balance subject to the further order of the court. The royalties accruing from E. were accordingly paid to Hie trustee. Subsequently the widow died, and an auditor was appointed to distribute the balance remaining in the trustee’s hands; the same being claimed by A.’s heirs, and by D.’s executors under the deeds to G.</p> <p>Held, that under the provisions of A.’s will the trust only continued •until the widow’s death; that the conveyances to C. by the heirs, of their contingent interests were valid, and that D. was entitled to those shares of the fund which would have been duo to said heirs, if they had not so conveyed.</p> <p>Held, further, that the report of the Master in pursuance of the bill in equity, and the final decree thereon, were not a bar to D.’s claim before the auditor for the shares conveyed to C. by the heirs; because, in the proceedings before the Master the validity of the deeds by the heirs was not the object of the issue, and whether valid or not, the right of the trustee to recover, by reason of the invalidity of the widow’s deed, was the same.</p> <p>2. A judgment of a court of concurrent or exclusive jurisdiction is not evidence of any matter incidentally cognizable, nor of any matter to bo inferred by argument from the judgment.</p>

179. Trespass quare clausum fregit, vi et armis, by John P. Hoyt against James W. McGhee, to recover throe-fold damages, iruder the Act of March 29, 1824, for breaking and entering plaintiff’s close, and cutting and taking away pine timber from a piece of land containing 58 acres and 92 perches, in Penn township, Clearfield county.

<p>1. The Commonwealth’s right to collateral inheritance tax is not defeated by a conveyance or transfer of the title to property, during the lifetime ol the owner, nor by possession taken under such conveyance, if the enjoyment of the properly conveyed is not intended to take effect until the death of the grantor.</p> <p>2. A. while suffering from his last sickness conveyed Ms property in foe to Ms brother, and only heir, 15., for the consideration of $1. At the same time B. executed a bond conditioned for the faithful payment to A. Ms executor, administrators or assigns, of the net income of said property, without fraud or delay.</p> <p>Held"That under this bond the ownership of the property conveyed to B. did not take effect in enjoyment until A.’s death; and, therefore, that upon the happening of this event, said property was subject to collateral inheritance tax.</p> <p>8. The owner of an estate cannot defeat the plain provisions of the Collateral Inheritance La,w (Act of April 7, 1826) by any device which secures to him, for life, the income, profits and enjoyment of Ms estate. Said law can only be defeated by such a conveyance as parts with the possession, the title and the enjoyment during the grantor’s lifetime.</p>

98. Upon the petition of William H. Hassenplug, setting forth that G. H. Hassenplug, his brother, was a lunatic, the court ordered that a commission issue in the nature of a writ de lunático inquirendo. The return of the commission found the lunacy as averred. A traverse was filed, and the issue was tried before a jury, who found in favor of the defendant, and judgment was entered on the verdict.

<p>1. Protest of a note may be waived either by a writing or by parol.</p> <p>2. A waiver o £ “ protest ” of a note by an indorser before maturity releases the holder from the necessity of making demand and of notifying the indorser of non-payment.</p>

383. Assumpsit, by John Phillips against George F. Meily, upon a promissory note for $3,000, drawn by defendant to the order of plaintiff.

154. This was an appeal by Thomas M. Wolf, a wage creditor of the firm of Light & Bros., from a decree of said court in the matter of the account of Samuel L. Light and Asaph S. Light, assignees for the benefit of creditors of Henry Light, John Light and Cyrus Light, individually, and as composing the firm of Light & Bros. The said assignees filed their second and final account in August, 1879, to which exceptions were filed by Thomas M. Wolf and others, and the account was…

<p>Error to the Court of Common Pleas, of Lebanon County: Of January Term, 1884, No. 394.</p> <p>Case, by Jacob Horst against Abraham Meyer, to recover damages for the diversion of water from the plaintiff’s saw-mill, by the removal of splash boards from the flood gate of his dam, whereby the supply of water to said mill was diminished.</p> <p>Plaintiff’s declaration was as follows: “.....That whereas he, the said Jacob Horst on the 1st day of June, A. D. 1881, at .... in ... . was seised in his demesne as of fee, of and in a certain messuage, tenement and tract of land containing .....with the appurtenances, upon which now' is (and from time immemorial,) has been, erected a certain water saw-mill, with the appurtenances, and the same Jacob Horst, and all those whose estate he hath in said tract of laud and saw-mill, with the appurtenances, have had and of right ought to have the use, benefit and advantage of the water of a certain water-course, or stream of water, in the township and county aforesaid, which, during all that time did flow and run, and of right ought to have flowed and run, and still of right ought to flow and run, to and into the saw-mill aforesaid, for supplying the same with water for the working thereof at, to wit: The county aforesaid, and being so thereof seised, the aforesaid Abraham Meyer, not being ignorant of the premises, but maliciously contriving and intending him the said Jacob Horst of the profits and advantages of his saw-mill aforesaid, to deprive, on, to wit: the first day of July, A. D. 1881, and at divers other days and times as well before as after and before the commencement of this suit, at .....did out down.....two of the splash boards in the waste way or flood gate of the dam erected in said watercourse......and thereby the water of the water-course, .....aforesaid, from its usual course towards the saw-mill aforesaid, then and there did divert and turn away, so that the said saw-mill, which before that time was able and used to saw, to wit: four hundred feet of lumber in every twenty-four hours, by such diversion of the water, was and is able to saw but to wit: three hundred feet of lumber within the time aforesaid......To the damage of the said Jacob Horst. .....” Plea not guilty.</p> <p>On the trial, before McPherson, J., it appeared that the defendant owned a tract of land adjoining plaintiff’s, over which the stream supplying plaintiffs mill with power ran its course to said mill. Defendant claimed that the plaintiff unlawfully set the water back upon him and that he removed the splash boards to abate the nuisance.</p> <p>For the purpose of showing title to the saw-mill property, and to the water right to run the mill, plaintiff offered the record of the Orphans’ Court of Lebanon county from which it appeared: that both plaintiff’s and defendant’s tracts of land formerly belonged to John Graybill, who died in 1840, intestate and seised of the same; that after his death partition of said lands was made by the court, under which proceeding the “ saw-mill tract ” was awarded to plaintiff (who was the husband of the intestate’s daughter) in right of his wife at the valuation arid appraisement; that the inquest appointed by the Orphans’ Court, in this proceeding, imposed a servitude upon the tract now owned by tbe defendant, in favor of plain-, tiff’s saw-mill tract, in these words: “ And the inquest aforesaid on their oaths and affirmations aforesaid do further order and direct that the saw mill tract, owner and owners thereof, marked with the letter-shall be and are hereby authorized to the water right of the creek, and shall have the right to swell the water in the said creek up to a certain stone this day fixed by the said inquest; the said inquest having taken this right and privilege into view in fixing the value of the saw mill tract and the tract marked with the letter ‘ A ’ in the annexed Diagram and Inquisition.”</p> <p>The defendant objected to the admission of this record on the following ground: “ That thereby the plaintiff seeks to sustain his action by a specific and independent grant of the water privileges, which is not referred to in the declaration at all, that being of a general character ” (i. e., for an invasion of a prescriptive right.)</p> <p>The Court. As to what will be the result of the language in which the declaration is couched we have nothing now to do. I think this evidence, under the declaration is admissible. That is the only question before us now. Exception. (1st assignment of error).</p> <p>The defendant’s counsel further objected as follows: “ I, object to that part in which reference is made to the right to swell the water in the creek up to a certain stone as the foundation of the special grant of water privilege; and that it is not supported by (i. e., does not support) the declaration, and that it does not agree with it, and that, therefore, it cannot be received in evidence under the narr.” Objection overruled. Exception. (2d assignment of error.)</p> <p>The plaintiff asked the court to charge: “That if the jury believe the testimony of John Strickler, Jacob Graybill and John Graybill, in the matter of fixing the point to which the plaintiff is permitted to swell the water as stated in the return of the inquisition in proceedings in the partition of the real estate of John Graybill, deceased, from whom both plaintiff and defendant derive their respective titles; and also believe, the testimony of W. J. Burnside, surveyor, Andrew Shower, John Strickler and John Graybill, and that the water did not swell beyond said point so fixed by said testimony, prior to the institution of this said suit, then the verdict must be for the plaintiff.”</p> <p>Answer. “ The jury must determine, if possible, from all the evidence in the cause, the point fixed by the inquest and referred to in their report. If they can find that point, an accurate level therefrom would determine the extent of the plaintiff’s right; if they cannot, the extent of the plaintiff’s occupation and enjoyment, as the jury may find it from the evidence, should determine the extent of the plaintiff’s right.” (4th assignment of error.)</p> <p>The defendant submitted the following points:</p> <p>7th. “The plaintiff, having counted for an injury to his alleged prescriptive right to this water privilege, must recover, if he recovers at all, upon that right alone. If he claims an extended privilege by reason of the alleged designation of his water right by the inquest, he should have founded his action upon it.”</p> <p>Answer. “ The plaintiff does not claim a right greater than existed when the inquest was taken, and cannot recover except upon the right designated and defined by the inquest.” (5th assignment of error.)</p> <p>1st. “The plaintiff has misconceived his remedy. Ilis action —if his complaint is well founded — should be trespass and not case.”</p> <p>2d. “ The injury proved by the plaintiff is, that the defendant removed from his flood-gate, which stood on the land of the former, a splash-board or boards, thereby reducing the height of the- dam at that place from five to six inches, whereby the water was diverted from his mill, of which he was then in possession. If this is so, trespass, and not case, is the proper form of action to redress the injury.”</p> <p>The court in its charge to the jury said:</p> <p>“ A question of law will arise for us to determine, and it will be necessary, in order for us to determine it, that you find the following facts:</p> <p>“If you find for the plaintiff, ire will ask you to answer these questions in writing:</p> <p>“ 1st. Did the defendant take away the splash-boards from plaintiff’s flood-gates ?</p> <p>“2d. Was the supply of water to plaintiff’s mill diminished thereby ?</p> <p>“ 3d. If so, did the diminished flow of water injure the •water-right of the plaintiff?</p> <p>■ “Upon the facts as found by the jury in answer to the above questions, we reserve the question whether the plaintiff is entitled ‘ to recover in this form of action.” (6th assignment of error.)</p> <p>Verdict; “The jurors.come into court and do say that they find in favor of the plaintiff the sum of five dollars damages, and answer the three questions submitted to them by the court in the affirmative.”</p> <p>The same day the court entered judgment on the verdict in favor of the plaintiff, and on the above reserved question; whereupon the defendant took this writ, assigning for error the admission of the Orphans’ Court record, the answers to plaintiff’s-and defendant’s points as above noted, and the entry of judgment for plaintiff on the question reserved.</p>

<p>■ Appeal from the Court of Common Pleas of Tioga county : In Equity: Of January Term, 1884, No. 420.</p> <p>This was a bill in equity filed by Charles F. Billings and Abbey B. McNeil, against Sarah M. Billings, Jefferson Harrison and William Putnam, praying for an injunction to restrain the defendants from committing waste by cutting timber on certain lands, and for an account of timber cut.</p> <p>An answer was filed, and the cause was referred to an examiner, and subsequently to a Master, who reported a decree dismissing the bill. Exceptions filed by the complainants were dismissed by the court, and a decree dismissing the bill was entered in accordance with the recommendation of the Master. The facts of the case are clearly stated in the opinion of this court. The complainants took this appeal, assigning for error the said decree.</p>

<p>1. A deed, besides containing courses and distances, described the land conveyed as follows: “ 197 acres, being the south end of a tract surveyed by virtue of a warrant in the name of H. M., being the remaining • part of said tract hitherto unsold.” It appeared that the H. M. tract originally contained 447 acres, and that, before the above deed was executed, the owner had sold 250 acres from the north part thereof. The courses and distances did not correspond to the marks on the ground, and the survey would not close under them unless one of the courses was reversed and several other changes made.</p> <p>Held, that the above call in the deed, “ being the south end of a tract, &c., remaining unsold,” definitely fixed the purchase, and, in the absence of line marks found on the ground, controlled,</p> <p>2. In an action of ejectment, the plaintiffs showed a paper title. Defendants then showed entry on the land under color of tiñe, and claimed . more than 21 years’ open, notorious, adverse and continuous possession. Plaintiffs contended that this possession was as agents and lessees under ' them, and submitted a point which set out that if plaintiffs’ agent made certain agreements with A and B to clear the land in dispute, and defendants’ ancestor, 0, as representative of said agent, prepared the agreements and signed them in the agent’s name, “per C,” and these agreements were renewed from year to year hy C, and A and B went into possession under them, and so remained in possession during the period covered by said agreements, that A andB became plaintiffs’ tenants, and C, by so signing said agreements, recognized plaintiffs’ title to the land and the right of the agent to lease the same, and that the defendants were estopped from claiming title through C during the time covered by said agreements, and that, in view of the fact that there was no evidence to show that A’s and B’s tenancy under said agreements had ever terminated, the jury should find for the plaintiffs.</p> <p>Held, that the court having affirmed this point without qualification, there was nothing left to submit to the jury.</p>

<p>Error to the Court of Common .Pleas of Bedford county: Of January Term, 1884, No. 4.</p> <p>Scire facias sur mortgage, by It. H. Oppenheimer, B. Oppenlieimer and S. Oppenheimer against Paul Wright and Laura Wright. The mortgage in suit was dated October 11, 1880, given by Paul Wright and Laura Wright, his wife, to the plaintiffs, to secure the payment of the sum of $219.15, in fifteen months after date, with interest; and conveying in mortgage a certain home and lot, being the separate estate of the wife. The debt was contracted by her husband. The mortgage was duly and separately acknowledged by the mortgagors in the form required by Act of Assembly to convey the wife’s estate, before a Justice of the Peace, and was duly recorded two days after its date.</p> <p>On the trial, before Baek, P. J., counsel for defendants made the following offer: To prove by the witness Laura A. Wright, defendant, that she was led to sign her name to the paper or mortgage in suit, by the misrepresentations of the plaintiff, and that she was imposed upon as to its purpose by him, and she signed it without a full knowledge of its contents and purpose.</p> <p>Objected to, because the offer does not allege fraud or duress, and in the absence thereof, the certificate of the magistrate is conclusive. Objection overruled, and testimony admitted. Exception.</p> <p>Mrs. Wright testified as follows:</p> <p>Q. What occurred on the day that this paper was signed?</p> <p>A. In the afternoon, Mr. Oppenheimer called and asked if Mr. Wright was at home. I told him he was not, and then he said he would be back again in the evening, and he did come in the evening, and they went in the. room, and Mr. Oppenheimer said they wanted to settle up their book, and they went in there and I went out in the other room, and after they were through they called me and I came in, and Mr. Oppenheimer said they counted up the book and asked me if I would have any objections for signing a little store paper, and I said not; he got up then and walked out and said he would be back in a minute, and when he came in he brought Mr. Smith (the Justice) along, and they came in and laid the paper down on the table, and Mr. Wright signed it, and they asked me to sign it, and Mr. Smith said do you know what you are going to do ? and I said no, and he stood quite a little while and then he-asked me again, and he said I had signed my property to Mr. Oppenheimer, and I commenced to cry and I don’t know who took it up, whether Mr. Smith or Mr. Oppenheimer, and they went out.</p> <p>Q. Was the paper read over to you?</p> <p>A. No, sir; it was not.</p> <p>Q. Did any one tell you what it was before your name was to it, except Mr. Oppenheimer said it was a little store paper?</p> <p>A. He said it was a little store paper, when he come in and laid it down he did not say it was.</p> <p>Q. Did you sign this, believing it was a store paper he asked you to sign?</p> <p>A. I could not say; I did not know what kind it was; I thought it was; I did not know it was a mortgage.</p> <p>Q. You thought it was a store paper?</p> <p>A. Yes, sir.</p> <p>Q. After you had signed it, Squire Smith asked you what you had done ?</p> <p>A. Yes, sir.</p> <p>Q. Did you ever sign a mortgage before ?</p> <p>A. No, sir; I did not; I never saw one until I saw that one ; I did not know what kind of a paper they were.</p> <p>Q. Did you ever sign a deed?</p> <p>A. No, sir.</p> <p>Q. Did you ever sign a paper of any kind ?</p> <p>A. No, sir; I did not; I never did.</p> <p>Q. Had anybody, up to the time you had put your name to this paper, mentioned that there was to be a mortgage given ?</p> <p>A. No, sir; they did not.</p> <p>Q. Had anybody suggested any paper was to be given that would be a lien on your property ?</p> <p>A. No, sir.</p> <p>Q. Or conveyance or deed of the property?</p> <p>A. No, sir; nothing of the kind.</p> <p>Q. Did you know that would be the effect of this paper ?</p> <p>A. No, sir; I did not.</p> <p>Q. Did you know that there was a clause in this paper, at any time, that allowed them to issue a writ to revive judgment against you or proceed against you to collect at the end of the year, or when the money was due ?</p> <p>A. No, sir ; they did not say anything; I did not know anything about it.</p> <p>Q. Did you ever know it until this day ?</p> <p>A. No, sir ; not until you mentioned it.</p> <p>Q. Did they tell you there was a clause allowing attorney’s fee for collection ?</p> <p>A. No, sir.</p> <p>Q. Was there anything said about this having the effect of a deed?</p> <p>A. No, sir.</p> <p>Q. Were those papers in your hands after you put your name to them?</p> <p>A. No, sir; they were taken right away off the table; I don’t know who had them.</p> <p>Q. Then you were told it was a mortgage ?</p> <p>A. Yes, sir.</p> <p>The material testimony on the part of the plaintiffs is recited in the opinion of this court.</p> <p>The plaintiffs presented, inter alia, the following point:</p> <p>3. Fraud is not to be presumed, it must be shown by clear and positive proof, and there is no such evidence in this case to warrant the court in submitting the case to the jury.</p> <p>Answer. This we decline to affirm. Fraud must be proved, and the jury must be satisfied by clear and satisfactory proof. They are to determine this from all the evidence, direct and circumstantial, that bears on the case. If she was induced to sign, and acknowledge through any false representations, or by being imposed upon, so she did not learn then to know she was executing a mortgage to secure her husband’s debt, and the plaintiff was himself active in it, then it is void as to her.</p> <p>Verdict and judgment for the defendants. The plaintiffs took this writ of error, assigning for error the admission of the above offer, and the answer to the above point.</p>

<p>Appeal from the Orphans’ Court of Bedford county: Of January Term, 1884, No. 153.</p> <p>This was an appeal by John B. Pote, from a decree revoking his appointment as guardian of Mary Margaret Irene Pote, a minor, and confirming the appointment of D. S. Brumbaugh as guardian of said minor.</p> <p>From the petitions and answer hereinafter referred to, the facts appeared to be as follows:</p> <p>Harriet L. Pote, a single woman, daughter of John B. Pote, became the mother.of a female child on or about the 18th day of February, 1876, the putative father being Dr. S. S. Brumbaugh. Claims on behalf of the mother were settled by the putative father paying the sum of about $500 to the mother. Harriet L. Pote died on or about the 28th of November, 1882, leaving this child with her parents where she and her child had always lived. Ou January 10,1883, Dr. S. S. Brumbaugh presented his petition to the court praying the appointment of a guardian for M. Brumbaugh, a minor child of Harriet L. Pote, and on same day D. S. Brumbaugh, a brother of Dr. S. S. Brumbaugh was appointed guardian.</p> <p>On February 12, 1883, there being no record or notice of any appointment of a guardian of Marv Margaret Irene Pote, Andrew C. Pote, brother of Harriet L. Poto, presented his petition to the court, praying the appointment of a guardian for Mary Margaret Irene Pote, minor child of Harriet L. Pote, deceased, and on the same day John B. Pote, grandfather of said child, was appointed guardian, and gave bond.</p> <p>On April 16, 1883, D. S. Brumbaugh presented a petition praying the court to amend the record of his appointment by changing the name in his petition from M. Brumbaugh to Mary Margaret Pote, and for a rule on John B. Pote to show cause why his appointment should “not be decreed null and void.” To this rule John B. Pote filed an answer, on the 18th of June, 1883, stating that he had no notice of the appointment of D. S. Brumbaugh, and objecting to the amendment, and on July 17th, 1883, D. S. Brumbaugh filed a replication, and on 25th July, 1883, John B. Pote presented his petition asking the revocation of the appointment of D. S. Brumbaugh. On September 3, 1883 (the first day of the regular term), this was returnable, and on that day the court, in a written opinion filed, revoked the appointment of D. S. Brumbaugh. The latter filed an answer upon the same day, and the court thereupon granted a rehearing. This took place upon October 31st, and on November 21st the court filed the following opinion and decree (after reciting the facts):</p> <p>“ Assuming that on the face of the petitions the appointment of each was sufficiently formal and regular, yet both appointments can not stand. The commission of one must be revoked.</p> <p>“ The argument that Pote’s petition should have been presented only after notice to the father, or that it should have set forth some reason why an appointment should be made on any other person’s petition without consulting him, though apparently well founded, loses its force when the facts are considered. The petition purported to be signed by an uncle, and, if the child had been legitimate, he would have borne this relation; it negatived the existence of a father by stating that the child ‘has no guardian to take care of her person and estate,’ and is the child, not of Dr. S. S. Brumbaugh, but of Harriet L. Pote, deceased. The counsel of Dr. S. S. Brumbaugh, themselves, show that he is the putative father and does not live within the jurisdiction of the court. The petition did not disclose the fact that the child was a bastard, and hence the appointment, on the petition of Andrew C. Pote, as uncle, was regular and valid until, for valid reasons, it is shown that it should be revoked.</p> <p>“ It is alleged that the appointment is void because of the prior appointment of D. S. Brumbaugh as guardian; but D. S. Brumbaugh was appointed guardian for M. Brumbaugh, minor child of Harriet L. Pote and daughter of S. S. Brumbaugh. It has been developed on this hearing that M. Brumbaugh was intended for Mary Margaret Irene Pote, and that the name was inadvertently used by the putative father, and that, in point of fact, D. S. Brumbaugh had been appointed her guardian on the petition of her putative father; but the petition on which the court acted indicated no such thing. The court might, even if it had knowledge of the appointment of a guardian for Harriet L. Pote’s daughter, Mary Margaret Irene Pote, have readily supposed that M. Brumbaugh was another daughter of Harriet L. Pote. Possibly close scrutiny might have led the court, in the one case, tp, have inferred illegitimacy ; but, surely, counsel did not even hint so much, at the time the appointments were made.</p> <p>“We are now confronted by the anomaly of two guardians for the same child. The commission of one must be revoked. It is not simply a contest between two guardians, but the mother’s father and the putative father of the child become the real actors. Andrew C. Pote, on whose petition John B. Pote was appointed guardian, was not legally related to the child, although he was her mother’s brother; nor is the guardian, John B. Pote, though her mother’s father, legally related to the child. Yet we should hold as a rule, when no good reason appeared for holding the contrary, that the putative father, as against the near relations of the mother, had no standing in court to urge the revocation of the appointment of a guardian made on their petition. As the case now stands, as to the question of allowing the amendment as prayed for by D. S. Brumbaugh, who was appointed guardian for the person and estate of this same child on the petition of the putative father, and was duly commissioned before the petition of Andrew C. Pote was presented, and if nothing else appeared, we should not hold that the mere fact of a first appointment would make Brumbaugh’s commission irrevocable. But the question is fairly raised as to which of the two guardians’ commissions should stand, in the light of the highest and best interests of the child. Both appointees are honest, worthy and responsible persons; and either would, doubtless, safely hold and manage the estate but the one appointed on petition of the putative father, by writings presented to the court which he prays leave to file and which leave is now granted, offers, apparently in good faith, that he will become responsible in a sufficient bond conditioned that the child shall be, in all respects, well cared for during its minority, sliall bo clothed, boarded, lodged and maintained comfortably, and well educated until it arrives at full age, free of all expense to its own estate, so that its own entire estate may be safely invested to the best advantage for its benefit.</p> <p>“ The custody of the person of this child, and its moral and intellectual training, are matters of great moment. The putative father claims the custody in order that he may train it morally and intellectually, and represents that his circumstances in life and his location and surroundings arc of such a character as, when taken in connection with his professed honest and sincere purpose to do well for his child, should warrant the court in confirming the appointment of the guardian made on his petition, as against the mother’s relatives, who cannot be supposed to have the same affection for the child that he has. They are farmers, residing in the country, where the same liberal school facilities do not exist as are in reach and command of the putative father; and their habits of life and religious convictions lead them to undervalue that higher education which he is so desirous it should have. The guardian appointed on his petition is favorable to the claim of the putative father.</p> <p>“ Counsel for Dr. Braumbaugh invoke the statute and insist that the appointment should be made with regard to tlie religious persuasion of the parties ; but we fail to see any force in this because the mother was, and her father, who was appointed a guardian, is a German Baptist, the putative father a member of the Reformed Church, and D. S. Brumbaugh a Lutheran, all protestants. If the religious faith of parents be considered, this child having in law a mother and only a putative father, and that mother having been a Baptist, would literally fulfill the statute; but, after an appointment has been made, and fitly made, a commission will not be revoked because the guardian is of a different religious faith, unless he would unduly influence the child, or other good cause be shown.</p> <p>“ Considering the praiseworthy offer made by the guardian first appointed on the petition of the putative father, and which we now assume was made in the utmost good faith and in the best interests of the child; and his offer to give bond and surety that no charge will, at any time, be made against the estate of the minor for the care and management of its estate; or for its clothing, lodging, maintenance, or education, during nonage; and the open and frank profession of good faith on the part of the putative father; and his professed honest and sincere desire to well care for his illegitimate child coupled with his acknowleged standing and ability; and the further fact that a more thorough and higher education than can be had in the community where the mother’s father resides, is offered, and is possible under the care of the putative father we cannot help looking with favor on what seems so apparently and manifestly calculated to promote the best interests of the child......</p> <p>“Upon due consideration of the whole case, we now order and decree:</p> <p>“ 1. That the former decree made and filed September 3. 1883, be revoked.</p> <p>“ 2. That the petition of Dr. S. S. Brumbaugh for the appointment of a guardian for M. Brumbaugh a minor child of Harriet L. Pote, deceased, and the record made thereof be amended by striking out the name of M. Brumbaugh and inserting that of Mary Margaret Irene Pote.</p> <p>“3. That the commission of John B. Pote be revoked, the costs of that proceeding, and of his commission to be paid by Dr. S. S. Braumbaugh.</p> <p>“4. That the appointment of D. S. Brumbaugh as guardian of Mary Margaret Irene Pote, minor daughter of Harriet L. Pote, deceased, be confirmed and his commission stand.</p> <p>“ 5. That D. S. Braumbaugh enter into a guardian’s bond with two sureties to be approved by the court, in the sum of $1500.</p> <p>“6. That D. S. Brumbaugh and Dr. S. S. Brumbaugh enter into a bond, with sureties to be approved by the clerk, in the sum of $1000, conditioned that the estate of the minor, Mary Margaret Irene Pote, shall be well managed, and that she shall and will be comfortably and well cared for in every way, properly clothed, lodged, boarded, maintained and educated during nonage, at the proper and exclusive cost and ■•expense of Dr. S. S. Brumbaugh, the putative father; and that the estate of Mary Margaret Irene Pote shall be invested .at interest, and, at her majority, paid over to her, free from all charges and deductions for any account whatever.</p> <p>“ 7. And it is further ordered that John B. Pote settle with ■and pay over to, the guardian within a reasonable time the .amount of the child’s estate in his hands, or secure the same to be paid to the guardian with accrued and accruing interest at such time as may not unnecessarily harass him, the said John B. Pote, but in such way and manner as will promote ■the interest of the child.</p> <p>“ 8. That the guardian and putative father do and shall afford proper and reasonable facilities for the child’s visits to its grandparents, and shall encourage and keep alive the love ■and respect it now has and bears for the parents of its mother.</p> <p>“ 9. That the costs be paid by Dr. S. S. Brumbaugh, the putative father.”</p> <p>John B. Pote thereupon took this appeal and filed the following assignments of error.</p> <p>1. The court erred in revoking the appointment of John B. Pote, as guardian of Mary Margaret Irene Pote, and in directing the record of the appointment of D. S. Brumbaugh to be amended and decreeing his appointment as guardian of Mary Margaret Irene Pote, in place of M. Brumbaugh.</p> <p>2. The court erred in not revoking the appointment of D. S. Brumbaugh as guardian of M. Brumbaugh a minor child of Harriet Pote, deceased, and in not decreeing that the appointment of John B. Pote, as guardian of Mary Margaret Irene Pote had been regularly and legally made and that the same appointment should continue for the person and estate of said child.</p>

<p>1. Where the compensation of a public officer is fixed by statute, the officer cannot recover additional compensation for expenses incurred by him incident to the performance of his official duties.</p> <p>2. It is immaterial that by usage long antedating the statute, such incidental expenses have been paid heretofore without objection. A custom, however venerable, must yield to positive statute law.</p> <p>3. The Act of May 7, 1864, fixed a per diem compensation for the commissioners of Bedford county while engaged in their official duties. In a feigned issue to determine the amount of compensation due, the commissioners offered to prove that for very many years it had been the custom for the commissioners to visit various portions of the county to hear tax appeals, attend bridge-lettings, amito make bridge inspections, &c., for the convenience of the public ; that for more than fifty years prior to the year 1880, the commissioners had claimed and received, without objection, the actual expenses for traveling fare, horse hire, and hotel accommodation necessarily incurred by them in making their rounds; but in that year the county auditors refused to allow such expenses.</p> <p>Held,, That the evidence was properly excluded, and that the commissioners were not entitled to he reimbursed for such expenses, or to receive any other compensation than the per diom pay authorized by said statute.</p>

<p>1. Section 39 of the Act of June 13, 1840 (P. L. 671], extending the equity jurisdiction of the Supreme Court and Courts of Common Pleas in Philadelphia county, to causes o'f action based on fraud, accident, mistake and accounts, is not repealed by section 19 of the Act of October l;>, 1840 (P. L. of 1841, 7), giving said courts throughout the state, chancery jurisdiction in settling partnership accounts and such other accounts as had previously boon settled by actions of account render. Nor does the Act of February 14, 1857, (P, L. 39), giving jurisdiction to the Courts of Common Pleas, throughout the state, of several classes of cases, including accounts which cannot be settled by actions of account render, repeal the said Act of October 13, 1840.</p> <p>2. A bill in equity prayed for an account, and for an injunction to restrain the defendants from manufacturing and selling certain machinery, in alleged violation of an agreement with the plaintiffs, who were owners of letters patent thereon. The bill also contained a prayer for the appointment of a master, to examine the defendants, their officers and agents, and their books a.nd papers ; in order to discover the data for a correct statement of account between the parties. Several years after the bill was filed, a,n injunction having meanwhile been granted, and a master appointed, the defendants moved to dismiss the bill on the ground that plaintiff’s counsel had not certified, as required by the Act of October 13, 1840, that the cause was of such a nature that no adequate remedy could be had at law. The court below held, that the bill presented a case which came under said Act, and dismissed the same, refusing the plaintiff’s request to be allowed to amend by adding the certificate of counsel. Plaintiffs appealed, on the ground, that the case was not within the said Act of 1840, because the bill, was not primarily for an account, but for an injunction and for discovery.</p> <p>Held, that the bill set out a case within the Act; but that the court erred in not allowing the plaintiffs to amend, by filing their counsel’s certificate nunc pro tunc.</p> <p>3. It is the intendment of the Act of May 4, 1864 (P. L. 775), to secure to parties the same right to make amendments in equity proceedings as in actions at law; and although the ruling of a court of equity upon a motion to amend will not be reversed save for plain and hurtful error, yet such ruling is subject to review by the Supreme Court.</p>

<p>. Error to the Court of Oyer and Terminer of Tioga county: Of January Term, 1884, No. 8. . fS</p> <p>Indictment of George Traviss for the murder of Martha Sylvia. Plea, not guilty. The case was brought to the May sessions of said court, 1883.</p> <p>A motion was made to quash the indictment, the grounds for winch appear in the opinion of Williams, P. J., overruling said motion, which was, inter alia, as follows:</p> <p>“ The regular spring term of the several courts in this countj commences on the first Monday of May and continues two weeks. The first week is devoted to criminal and the second to civil business. For the May term last writs of venire issued in due time, and the jurors, grand and petit, were drawn and summoned. But a few days before the time it was learned that the writs of error to the courts of this judicial district were returnable on the first Monday of May, instead of the second Monday, as had been previously understood. To accommodate gentlemen of the bar who were engaged in the argument of cases before the Supreme Court, and at the same time to secure the transaction of the business of the criminal courts during the two weeks allotted to the May term, orders were made on the first day of the term detaining the grand and petit jurors for service during the following week, to which time the trial of causes was postponed. In obedience to the order so made, the grand and petit jurors presented themselves on the second Monday of May, to which time the Courts of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace had been regularly adjourned, and the business of the term, so far as the work of-the grand jury and the trial of causes is concerned, was then entered upon.</p> <p>“During the sitting of the grand jury, among other indictments presented was one against the defendant in this case for. murder. Defendant’s counsel now move to quash the indictment against him, and assign reasons which assert that the court had no power to detain the grand jury under the circumstances- stated, and that their action was wholly irregular and without the authority of law......</p> <p>“ Our holding may be summarized as follows:</p> <p>“1. The ‘court’ has power under the Act of 1875 (P. L. 28, § 2), to make the order under consideration, and the actual bodily presence of the jurors at the time when it is made is wholly immaterial.</p> <p>“2. The ‘judges’ of the Criminal Courts are the sole triers of the necessity for making such order, and their decision upon the question is final and conclusive.</p> <p>“8. The service of the process of the court upon the persons drawn as jurors, and not their actual presence in the courtroom, gives the court jurisdiction over them, and the right to make any necessary order affecting their attendance is subject only to the qualification that they must have notice of such order before they can be held to be in contempt for not obeying it.</p> <p>“4. That the failure of the clerk to record the order when made does not affect its validity. The order is the act of the court. The entry upon the minutes is only evidence of it. This evidence can be supplied by the entry, of the order nunc pro tunc whenever the omission is brought to the attention of the court.</p> <p>“5. The power so to correct its own minutes is so well settled that we should feel justified in refusing permission to the defendant to have his objection thereto filed; but, out of abundant caution and that we may save any possible right of the defendant in the premises, leave is granted to file an objection in writing to the making of the order upon the clerk to enter nunc pro tune the order of May 7, 1884.</p> <p>“ The motion to quash the indictment in this case is overruled.” (First, second, third and fourth assignments of error.)</p> <p>When the case was called for trial defendant’s counsel proposed to ask one James M. Eoe, who was being examined on liis voir dire as to his qualification to sit as a juror, the following question:</p> <p>“ You may state whether you have formed any impression of liis guilt or innocence from what you have read and from what you have heard of this transaction? ”</p> <p>Objected to on the ground that the proper question was whether Eoe had formed an opinion, not whether he had an impression.</p> <p>The Court: “We arc of opinion that the impartiality of the juror should be determined by the legal test, which is the formation or non-formation of an opinion upon the guilt or innocence of the defendant, and that the phraseology of the question is too vague to afford any standard, if answered, by which to determine his impartiality, we exclude the question.” (Fifth assignment of error).</p> <p>Numerous other persons were challenged, practically, on the ground that they had impressions in regard to defendant’s guilt, and the challenges were not sustained by the court. (Seventh, eighth, ninth and tenth assignments of error).</p> <p>The evidence in the case was to the following effect: Mar-tha Sylvia was seen in the village of Wellsboro up to about six o’clock in the afternoon of April 3, 1883. She lived about three miles and a half from the village, and alone. She was seen going home, after having entered upon the road which led directly toward her house. The next morning her house was found locked, and she was not there. The clock was running, but the bed appeared not to have been used during the night, and there was no fire in the stove. She was never seen or heard of afterwards alive. Upon the road along which she had to pass stood a barn, which was found to be on fire about the time she would naturally have passed it, and was wholly consumed. After the fire had somewhat abated there was discovered in the ashes an object which was supposed at the time to be the remains of. some animal; but on the following morning a physician pronounced it to be the trunk of an adult woman. Upon further search in the ashes a door key was found, also a bunch of keys, a little locket, a few hairpins and buttons, and the remains of an ear-ring. It was afterwards discovered that the door key would fit the door of Martha Sylvia’s house, that one of the keys on the bunch would fit her satchel and another her trunk. A small picture was also found in the house which apparently belonged in the locket.</p> <p>The defendant, Traviss, was seen with Martha Sylvia on April 3, 1883, by numerous witnesses and at various times during the day. He walked along the road with her part way from her house to Wellsboro, when some one took her the rest of the way in his wagon. They were seen together in Wellsboro by several persons. Traviss called for her at a store about six o’clock in the evening. There was evidence that they were afterwards seen together in various streets and finally on the road leading toward the barn. One witness, who lived well up the road toward the barn,, testified that some time after dark a man came and rapped at his door; that on opening the door he was attracted by the strange appearance and manner of the man standing there. One of them said “ good evening,” to which the other replied, and then the stranger asked for some matches, which the witness gave him, whereupon he went away in the darkness. The witness identified Traviss as the man. Nothing was afterwards seen of Traviss until he arrived at the house of his brother-in-law, Mr. Reese — with whom he lived — a mile or more beyond the barn, some time between eight and ten o’clock in the evening. It further appeared that Traviss had agreed to buy some cattle from Martha Sylvia for $58, and when he left home in the morning he said he was going to Stokesdale to get some money which was due him from one Constant Bailey, to pay Martha for the cattle. Young Freddie Reese testified that after Traviss reached home, in the evening at supper, he said he had been to Stokesdale, and obtained the money from Bailey and paid it toMartlnv Sylvia. Other witnesses testified that he afterwards told them different stories about the money, and that he did not see Bailey, but had part of the money in his pocket and got the rest out of a field where ho had buried it. Theré was evidence, however, as above set out, that he did not go to Stokesdale, but went with Martha Sylvia from her house to Wellsboro. When called upon to explain when he last saw Martha, he said he last saw her on her way to the depot; that lie had paid her the money and she was going to Indiana to see her husband, from whom she had separated. The evidence, however, showed that she did not go to the train, but, on the contrary, she told certain witnesses that she was going to marry Traviss and go west with him. Although on his way home from W'ellsboro he had to pass Martha’s farm, where the cattle were, he did not drive them with him, but, upon a suggestion from Reese that Martha, having sold the cattle, would probably not feed them that night, Traviss, Reese and a boy went back after them.' They went to Martha’s house, and Traviss rapped on the door, but receiving no answer, turned to Reese and said he thought Martha had not come home. They then went to the field, took the cattle, and drove them home.</p> <p>The general charge of the court was inter alia, as follows:</p> <p>“ There is nothing more seen of the defendant, so far as the evidence in this case shows, until he arrives at the end of his journey a mile or more beyond the barn. [He reaches the house of Mr. Reese, depending upon the conclusion the jury may arrive at from all the testimony of the witnesses, without attempting to call your attention to it particularly, somewhere from a little before eight o’clock to half-past nine.” “You will remember the evidence of Mr. Boyce and Airs. Boyce fixing the time when Reese left their house......If he pursued the road upon which he was last seen, he passed by this barn. He passed by it at a time which must be not far from being coincident with' the’ time whén the fire must have originated — when the crime must have been committed......He passed this barn. He passed it not far from the time the fire must have been set and crime committed, and he reached the other end of his journey, as we have said]. (Sixteenth assignment of error)......[On the night of the third of April, after he had reached home, according to the testimony of this same young man, Frederick Reese, while he was at supper, or before he had started after the cattle, he said to his relatives that he had been at Stokesdale; that he had been at the house of Mr. Bailey; that he had obtained from Mr. Bailey fifty-three dollars, and that he had paid to Martha Sylvia. That is the testimony of Frederick Reese]. (Seventeenth assignment of error)......[The evidence indicates that the defendant had paid this woman; he certainly alleged he had paid her $53, the price of these, cattle, that night." (Eighteenth assignment of error)......[You can say and you must say, whether there is here any evidence of motive— whether there was money to be taken from her person, whether’ there were cattle to be secured, whether he had any purpose of lust to subserve,.....We suggest these possible motives to you for your consideration. They are pertinent suggestions which the jury must consider. If the defendant committed this crime, he had a- motive]. (Nineteenth assignment of error)......[Does that evidence (of defendant’s previous good character)persuade you that certain other testimony, to which you might otherwise give credence, ought not to be relied upon by you, or does it raise a doubt whether you ought to rely upon it? The depositions of two witnesses have been read, speaking of the past good character of the defendant as a peaceable man, and the testimony of his father was given before you. You are to say how far the testimony of these three witnesses as to the previous good character of the defendant affects your belief in the other circumstances in this cause that lead to the conclusion of his guilt]. (Twentieth assignment of error)......[You have the power to fix the degree. You have the right to find, if you find the defendant guilty, that it is murder in the second degree. Yet we should not acquit ourselves to our consciences if we said less to you than to say that we see nothing in the testimony in this case that would justify a verdict of guilty of murder in the second degree. We feel that we ought to say that to you, and say it in such a way as to leave no ground of mistake abut it, that in our judgment of the evidence, if it shows murder at all, it, shows a murder committed with deliberation and with purpose. This opinion is not binding upon you; but we have the right to give it to you, and we do give it to you]. (Twenty-first assignment of error)......Now you have this case. Your question is not whether the defendant ought to be executed or not. That is not your question at all. You have nothing to do with that. Your question is: Is the defendant guilty of taking the life of Martha Sylvia ? The penalty the law fixes; you do not. You are neither the makers of the law, nor are you in any proper sense the executors of it. You simply aid in administering it. [And the subordinate part assigned to you in the administration of the law in this case is to determine one question : Did the defendant in this case take the life of Martha Sylvia? You have nothing to do with anything else in connection with it.] ” (Twenty-second assignment of error.)</p> <p>Verdict, guilty of murder in the first degree.</p> <p>The defendant’s counsel moved in arrest of judgment on the following grounds:</p> <p>“ The indictment does not sot forth that the jurors were empaneled, nor that it was found a ‘true bill’ by the action of twelve jurors ; ” “ The indictment does not set forth that the grand inquest inquired in the county of Tioga, or that they were ever in Tioga county, or were of the county of Tioga ; ” “ The jury, purporting to be a grand jury, who returned said indictment against the defendant; a true bill, was not a legal grand jury.”</p> <p>Defendant’s counsel also moved for a new trial on the ground that “E. 11. Copp, one of the jurors who rendered the verdict in this case, is second cousin to Martha Sylvia, who is alleged in the indictment to have been murdered, and that this fact was not known by the defendant or his counsel until after the rendition of the verdict in this case, viz: on the 20fch of July, 1888.”</p> <p>The opinion of the court on both of these motions was, inter alia, as follows: “ After a defendant has been arrested and before bail is given, is the proper time to make objections to the writ or the manner of its execution. After an indictment has been found, and before taking defence thereto, all proper dilatory motions and pleas are heard and determined. If the indictment remains undisposed of, the defendant may then be called upon to plead and enter upon his defence. After trial and conviction he is called upon for reasons why sentence should not be pronounced in accordance with the verdict.</p> <p>“ In conformity with this well considered and well settled order of procedure, objections to the form of an indictment, or to the manner in which it reached the records of the court should be taken by demurrer or upon motion to quash. If not so taken, it is too late after trial and verdict to consider them. In this case they were raised, considered and determined at the proper time, and ought now to be considered not only as belonging to an earlier stage of the case but as actually settled......The motion in arrest of judgment is therefore refused. (Eleventh, twelfth and thirteenth assignments of error).....We have examined the facts in this case and we find that the juror was wholly ignorant of his relationship to Martha Sylvia. His judgment could not have been affected, even insensibly, by a circumstance of which he had not the slightest knowledge. If this be so, then the newly discovered relationship is no reason for setting aside the verdict......The rule for a new trial is, therefore, now discharged.” (Fourteenth assignment of error).</p> <p>On July 6, 1883, the court sentenced Traviss to be hanged. Whereupon he took this writ assigning for error, the refusal of the court to quash the indictment, or to sustain his challenges of the jurors as above mentioned; the parts of the general charge set out in brackets; the refusal of the court to arrest judgment or grant a new trial, and lastly the failure of the court to charge the jury that the evidence was not sufficient to sustain a verdict against the defendant.</p>

<p>Error to the Court of Common Pleas of MeKean County : Of July Term, 1883, No. 174.</p> <p>This was an action on the case by A. W. Wolf against Otto Township to recover damages for personal injuries suffered by the plaintiff, caused, as alleged, by the defendant’s negligence. Plea, not guilty.</p> <p>The facts of the case, as they appeared on the trial, before Williams, P. J., are fully stated in the opinion of this court. The court below directed the jury to find for the plaintiff.</p> <p>Verdict, accordingly, for the plaintiff for $1000, and judgment thereon. The defendant took this writ of error, assigning for error, inter alia, the instruction of the court to find for the plaintiff.</p>

<p>Appeal from the Orphans’ Court of Lancaster county: Of January Term, 1884, No. 141.</p> <p>This was an appeal (by special allocatur) by Clayton L. DeHaven from a decree refusing to set aside a sale of real estate sold by order of said court, as prayed for by the appellant, the, purchaser at said sale, and confirming the sale.</p> <p>The facts as they appeared from depositions taken to support the petition of Clayton L. DeHaven, were as follows :</p> <p>Perry Martin, the reputed owner of the land in dispute, died on June 10, 1881. Letters of administration on his estate were granted to Adam Overly. Under an order of the Orphans’ Court the administrator advertised and sold seventeen acres and forty perches as the property of Perry Martin, deceased. At the sale Poland Diller claimed about ten acres as belonging to himself, and said, “ whoever would buy the property would buy a lawsuit.” JEL M. Houser, a member of the Lancaster Bar, acting as counsel for the administrator, then publicly announced that Perry Martin had a good title to the whole tract of land, and urged those present to bid for the property without fear of loss. The property was advertised as the “real estate late of Perry Martin, deceased.” The printed advertisement was as follows:</p> <p>Public Sale. — On Saturday, January 28, 1882, by virtue of an order of the Orphans’ Court of Lancaster county, will be sold at public sale, at tlie public house of Capt. Abm. Setley, in New Holland, said comity, the following described real estate late of Perry Martin, deceased, viz.: All that certain piece or tract of land in East Earl Township, containing seventeen acres and forty perches, more or less, with a two-story stone house thereon, situated near the road leading from Spangler’s Mill house to Green Bank Post-Office, adjoining properties of David Putt, John Sandoe, Lewis Diller, Daniel Overly, John Royer, Wilson Brubaker, Widow Martin and Caroline King. Persons wishing to view the property before the sale can call on Daniel Overly, residing near by. Sale to commence at seven o’clock, P. M.; terms made known by</p> <p>Adam Overly,</p> <p>Administrator.</p> <p>The evidence as to Houser’s representations at the sale is fully stated in the opinion of this court. Clayton L. DeHaven purchased the land and paid ten per cent, of the purchase-money. On March 27 exceptions to the confirmation of the sale were filed by Roland Diller, who claimed a portion of the land sold. These exceptions were overruled, and the sale confirmed by the court, because Diller’s title was not in any way affected by the sale.</p> <p>On August 27, 1888, Clayton L. DeHaven presented his petition praying the court to set aside the sale. The court granted a rule to show cause why the sale should not be set aside and the ten per cent, returned to the purchaser. This rule was subsequently discharged, Patterson, J., delivering the following opinion:</p> <p>“ The above rule was asked for and granted on the application of the purchaser at the Orphans’ Court sale referred to. The rule of caveat emptor is potent in such sales. In the present ease the sale made by the order of the Orphans’ Court was absolutely confirmed before this rule to set aside was applied for, and even equities, if now shown, cannot relieve the purchaser'in this proceeding. Under the uniform ruling of the Supreme Court in such cases, we cannot see how relief can be granted, under this rule, to the purchaser. The facts shown by the depositions taken, and read on the argument, are conflicting: King v. Gunnison, Admr., 4 Barr, 171; Miles v. Diven, 6 Watts, 148; Richter v. Fitzsimmons, 4 Watts, 251; and other cases might be cited. We must assume the decree of confirmation to be valid, and therefore must, in this case, overrule the motion to set aside the sale made under the order of the Orphans’ Court, &c.</p> <p>“ Rule discharged.”</p> <p>DeHaven thereupon took this appeal, assigning for error the action of the court in discharging the rule.</p>

<p>Appeal from the Orphans’ Court of York county: Of July Term, 1884, No. 38.</p> <p>Appeal of Lewis Cline and Carrie Cline, administrators of Andrew Cline, deceased, who was executor of Samuel Grove, deceased, from a decree of said court confirming the report of an auditor — surcharging' the estate of the said Andrew Cline, with a certain sum lost to it by his alleged negligence as executor.</p> <p>Before the auditor, John W. Bittenger, Esquire, appointed to audit the account of Andrew Cline, executor, filed by his administrators, the following facts appeared: Samuel Grove died in August, 1872, leaving a will, which was duly proved on September 4, following, and letters testamentary granted to Andrew Cline, the executor named therein. Grove died possessed of certain real estate, including a tan-yard in the borough of Lewisberry, when he died. By his will he provided, inter alia, as follows:</p> <p>“I Will and direct the Tan Yard and farm, be controlled by my Executor until such time as my Son John shall have become twenty One years (21) old. Then my Executor and my two sons Henry and John to cany on the tanniug business, (the yard to be stocked out of the funds of my Estate,) half of the profits of the Tan Yard and, &c., for the use of my two sons Henry and John. The other half to go into the hands of my Executor — for the use of the other members of my family — to wit, my Wife and my other children. My sons John and Henry to be at an equal expense with my Executor in conducting the business of Tan Yard and farm. I also Wish and Will that John C. Danner may and will still continue in the Yard, and direct affairs under and with the approval of my executor, until such time as circumstances may require a change.”</p> <p>Andrew Cline accepted the trust and assumed the general supervision of the tan-yard, the practical business of which was conducted by John C. Danner, according to the terms of the will.</p> <p>In March, 1878, Cline sold to J. W. Lescure & Co., of Harrisburg, a bill of leather from the tan-yard, amounting to 81364.52, and took the firm’s note therefor, in his own name. This note was twice renewed without any payments being made on it, the last renewal being on July 1873. Immediately after the last renewal of the note, it became known that Les-cure & Co. were insolvent and their real estate was sold by the sheriff, without realizing enough to pay the judgment liens against the same. These liens existed in March, 1873, when the leather was sold to said firm. No suit was ever brought on the note.</p> <p>One Clinton Keister, a witness before the auditor, testified that he had been accustomed to sell leather to Lescure & Co. on credit up to December, 1872, when he discovered that they were not responsible, and that their real estate was encumbered to its full value.</p> <p>After Cline’s death his administrator filed his final account as executor of Samuel Grove, and the latter’s heirs sought to surcharge Cline’s estate with the $1864.52 and interest, claiming that the facts above set out showed culpable negligence on his part in selling Lescure & Co. leather on credit, without security. This final account included an account filed by Cline himself in 1877. The accountants denied such negligence on Cline’s part and claimed that Grove himself sold Lescure & Co. on credit up to the time of his death. In proof of this they referred to Cline’s account in which he charged himself, in 1873, with $544.35 “cash received from Lescure & Co.”</p> <p>The auditor reported, inter alia, as follows: “ It was argued by Mr. Spangler, counsel for the accountants, that Samuel Grove, in his lifetime, sold to these parties on credit. The evidence does not establish this position. It is true that the accountants charged themselves, for the executor, in the account filed, with $544.35 from J. W. Lescure & Co., in 1873, but it does not appeal' who sold them this bill or on what terms it was sold. If Andrew Cline had made proper inquiries in the spring of 1873, he would have discovered the facts ascertained by Mr. Keister, that Lescure & Co. were insolvent and wholly irresponsible. In neglecting to make such inquiries, and in taking the note of the firm, without security payable to himself, individually, the auditor is of the opinion that the executor, Andrew Cline, was guilty of gross negligence, such as, in law, makes him responsible for the loss. Accordingly he, or his estate is surcharged with the amount, as of date May 25, 1873, with interest for ten years.”</p> <p>Exceptions filed to this report, were dismissed by the court, Gibson, J. delivering the opinion, and 'a decree entered confirming the same absolutely. Thereupon the accountants, Lewis Cline and Carrie Cline, took this appeal, assigning for error the decree of the court.</p>

132. Assumpsit, by the Inquirer Printing and Publishing Company against Rev. H. S. Rice, D. Rhine Plertz, O. S. Rice, A. W. Zugg and H. E. Hermes. Pleas, non-assumpsit, payment with leave, &c. On the trial, before Patterson, J., August 30, 1883, the court, without reserving a question of law, directed the jury to render a verdict for the plaintiff for $195.71.

<p>1. An injury caused to a subterranean supply of water by the lawful acts of an owner of land resulting in damage to his neighbor, is damnum absque injuria.</p> <p>2. A. purchased land, subject to a reservation that B. should have the right to conduct Hie water from a certain spring thereon to his adjoining lands. A. dug a well on his own land, about forty feet from the spring, the effect of which was to cut off the subterranean supply of water to the spring, to the injury of B. Upon a bill in equity, filed by B. against A. to restrain the digging of the well, and compel its filling up:</p> <p>Held, that the bill must.be dismissed. The water supply to the spring being under ground and invisible, B. could not claim the absolute right to an uninterrupted flow of water through A.’s land, whereby A.’s lawful use thereof would be prevented.</p> <p>3. Whenever the subterranean water is so hidden that its course cannot be discovered from the surface, no distinction can be drawn between ordinary percolations, and a subterranean current or stream, and in such case there can be no such tiling as a prescription in favor of an adjacent proprietor to have an uninterrupted flow of such water through his neighbor’s land.</p> <p>4. The rights of the respective parties, under the grant and reservation in this case, were in no way different from those of adjoining land owners.</p>

72. Tins was an appeal by Adam Carl et al., heirs at law and next of kin of Christiana M. Lohr, deceased, from a decree of the said court, dismissing their exceptions to and confirming the report of an auditor, appointed to audit the account and distribute the balance found to be in the hands of Rufus A. Eichelberger and John Carl, executors of the last will of the said Christiana M. Lohr.

376. This was an action of debt by the Commonwealth to the use of John Black, upon the official bond of George Lentz, constable, and Charles L. Green and R. II. Brubaker, his sureties on said bond, for refusal by Lentz to accept and execute an execution issued upon the judgment of an alderman in favor of John Black against William N. Brady. Plea, nil debet.