Volume 107 — Pennsylvania State Reports

66. This was an action on the case, by Charles T. Cole against Michael Schall, to recover damages- for injuries sustained by the plaintiff through the alleged negligence of the defendant in operating certain defective machinery without sufficient supervision. Plea, not guilty. On the trial, the following facts appeared : The plaintiff was employed at the time of the accident in operating a planing machine at the works of the defendant.

Of January Term, 1884, No. 298. Case, by John E. Schum et ab, children of Philip Schum, deceased, against the Pennsylvania Railroad Company, to recover damages for the death of their father, alleged to have been caused by the negligence of the company’s servants.

<p>L. Jurisdiction in equity depends not so much, on the want of a common law remedy as upon its inadequacy, and its exercise is a matter which often rests in the discretion of the court.</p> <p>2. A bill in equity may" be maintained where fraud is alleged in the procuring an absolute assignment of a security intended as collateral security whereby a trust arose, and where the relief prayed for is an account and a decree that the defendants pay to complainants the excess averred to have been received by them from such assigned security over and above the debt it was intended to secure.</p> <p>3. The fact that in such case an action of assumpsit might be brought against the principal defendant to recover back such excess, will not oust the jurisdiction in equity where the parties and circumstances are such that the remedy afforded in equity is more appropriate and more convenient than at law.</p>

<p>1. Where a husband and wife executed a written agreement to separate, whereby each for a valuable consideration relinquished whatever marital rights either might have in the estate of the other, and they forthwith ceased to cohabit, and such separation was actual, immediate and continuous:</p> <p>Held, that on the death of the husband the widow was not entitled to the $300 exemption provided by the Act of April 14, 1851, § 5, P. L., 613, nor to one third of his personal estate under the intestate laws.</p>

40. The records showed the following proceedings: — Habeas corpus, awarded by said court, upon the petition of S. V. Davis, directed to John Doyle and the sheriff of Warren county directing them to have the body of said relator before the court forthwith.

403. Assumpsit, on a policy of fire insurance, by “J. L, Grandin, who sues for himself as well as in trust for others ” against the Rochester German Insurance Company, of Rochester N. Y., to recover for a loss on certain oil, destroyed by fire in tbe Tidioute and Titusville Pipe Line, Limited.

43. Tbis was a seire facias sur mechanics’ lien, entered by William Stoke & Co. against David C. McCullough.

<p>1. A treasurer's tax sale of land which is in fact unseated, but which was assessed upon the seated list, and which was advertised and sold for the unpaid tax of one preceding year only, is void for want of jurisdiction, and conveys no title to the purchaser.</p> <p>2. In order to give jurisdiction for a treasurer’s sale of unseated land for taxes, it must appear that the land was assessed and sold as unseated, and that taxes thereon had been due and unpaid for the space of two years prior to such sale.</p> <p>3. Hathaway v. Elsbree, 4 P. F. S., 498, followed.</p>

<p>1. Where in an action of ejectment, one claiming to he the landlord of the defendant, and to be in actual possession of a part of the premises in dispute, applied by petition for leave to become a party defendant, and exhibited in his petition a claim of title not inconsistent with that of the tenant, the court should, in.the absence of denial of such facts, grant such application, and its refusal to do so is assignable as error, and may be cause for reversal. ■</p> <p>2. Under a judgment against A., his property was sold at sheriff’s sale to B. ' B. leased the property to C., who entered into possession and allowed A. to remain in possession of part of the premises as his tenant at will. Subsequently, under a later judgment against A., the property was again sold as his property at sheriff’s sale to D. In an action of ejectment by D. against A., Ó., setting forth the above facts, and that, at the time of the institution of the action he was in possession of the premises, and that since Hie issuance of the writ of ejectment he had purchased the premises from B. in fee, applied by petition to be made a parly defendant, which application was refused.</p> <p>Held, to be error and cause for reversal.</p>

<p>1. To take a parol gift of land out of tlie operation of the statute of frauds, the gift must he shown by proof which is credible and of such weight and directness as to make out the facts alleged beyond a doubt. The evidence must designate the land, must show open, notorious, exclusive possession taken and maintained in pursuance of the gift; that the improvements which constitute the consideration were made on the faith of the promised conveyance, and that compensation in damages would be inadequate.</p> <p>2. Where the contracting parties are not parent and child such gift may be proved by the acts and declarations of the parties either together or separately; and, if the contract be of recent date, the above rules will be more rigorously applied than if a long time has elapsed and the donee has been in continuous adverse possession for many years.</p> <p>3. In an action of ejectment the defence was a parol gift to the defendant, A, of the lot, by B, his uncle. In support of this A. introduced the testimony of eight or ten witnesses to the effect that B. erected a house on the lot in 1867, and that while Hie building was going up he stated that it was being built for A.; that to several of the witnesses he said he had money of A.’s in his hands which he was using to build the house and that when it was completed he intended to give the lot to A.; that to others B. stated, after the house was finished and A. had taken possession, that he had given A. the lot as a gift, and it was his. A. retained open, notorious and exclusive possession of the premises for about fifteen years without any claim being made byB. or his representatives. During this time he built a kitchen, pig pen and chicken house, laid a board walk, sodded the yard and set out trees. After B.’s death his residuary legatees claimed the premises and brought ejectment.</p> <p>Held, that the evidence was sufficient to support a parol gift to A., and to take the case out of Hie operation of the statute of frauds; and that, in view of the long time which had elapsed, the death of B., and the consequent incompeteney of A. as a witness, it would be inequitable to oblige him to resort to his action at law for damages.</p>

<p>1. Under the Statute of 32 Henry VIII., e. 32 (reported by the judges to be in foroe in Pennsylvania) tenants in common, who hold an estate for life or years, may compel those having the estates of freehold or inheritance to make partition, but such partition shall not prejudice or injure the interest of any one not made a party thereto.</p> <p>2. A lease for twenty years “ of the exclusive right for the sole and only purpose of mining and excavating for petroleum, rock, or carbon oil ” in the one half part of a certain tract of land “ in alternate quarters,” the lessors reserving for tillage and lumbering purposes the improved land and the use of all other land not necessary for producing oil, and further reserving certain royalties, vests in the lessee an estate for years, and not a mere license on the land demised, and such lessee is entitled to notice of a, partition by the owners of the fee, whether such partition be by action at law or by amicable agreement, and the lessee will not be bound by such partition, if it divides the land to his injury, unless he has had notice thereof or been made a party thereto.</p> <p>3.The said lease was made by the tenants in common owning the fee of certain tracts of land. Subsequently, the undivided one fourth interest owned by one of said tenants was sold under a mortgage, which had been recorded prior to the execution of the lease. The remaining owners of the fee, together with the purchaser under the mortgage, who had notice of the lease, without notice to or the knowledge of the lessee, amicably agreed to a partition of the land, which divided the tract to the injury of the lessee, and the purchaser under the mortgage sold his purpart to third parties. In an action of ejectment by said third parties against the lessee to recover the possession of the land so purchased by them:</p> <p>■ Held, that the lessee was not bound by the said partition, and the plaintiffs could not recover.</p> <p>4.McKee v. Straub, 2 Binney, 1, commented upon; Long's Appeal, 27 P. F. S., 151, and Mark v. Mark, 9 Watts, 410, distinguished; Chicago & Allegheny Mining Co. v. U. S. Petroleum Co., 7 P. F. S., 83, followed.</p>

<p>Error to the Court of Quarter Sessions of Juniata county: Of July Term. 1884, No. 65.</p> <p>Upon a petition filed in the name and on behalf of Juniata county, the Court of Quarter Sessions granted a rule on the overseers of the poor of Delaware township, in said county, to show cause why said court should not certify to the trustees of the Pennsylvania State Lunatic Hospital at Harrisburg that Delaware township poor district is the place of settlement of Theorus Thompson, a pauper committed to the Pennsylvania State Lunatic Hospital, and to show cause why said township of Delaware should not reimburse or pay to Juniata county the sum of $52.85 costs of commission and removal of said Theorus Thompson, and also to show cause why said township should not pay expenses of keeping him there.</p> <p>An answer was filed, and testimony was taken before a commissioner. After hearing the court discharged the rule, BARNETT, P. J., filing the following opinion :</p> <p>The facts in this case sufficiently appear from the testimony of witnesses examined by the commissioner and we need not repeat them, nor refer to them further than to say we have found the facts to be as contained in the request made by the Attorney for Juniata county, as follows :</p> <p>1. That Theorus J. Thompson was born in Delaware township, Juniata county, and had a settlement there.</p> <p>2. That his parents resided in Delaware township, and had a settlement there at the time of his birth.</p> <p>8. That he never acquired any other settlement in the Commonwealth of Pennsylvania.</p> <p>4. That he had resided iii Delaware township since 1878 until the 21st day of March, 1888, when he was removed to the Hospital for the insane, at Harrisburg, by virtue of proceedings instituted under the Act of Assembly approved April 20th, 1869, by order of the Court of Quarter Sessions of Juniata county; and also further find, that Theorus Thompson removed from the State of Pennsylvania to Kansas about the year 1869, where he became the owner of real estate and lost his domicile in Pennsylvania by acquiring a new one in the latter state, and that he acquired a new domicile independent of his father. See Overseers of Toby v. Overseers of Madison, 8 Wright 60, as applicable to the facts of this case.</p> <p>Domicile, residence and settlement each differ from the other. The first two depend upon fact and intention, the last is regulated and determined by the poor laws. There may be residence where there is no settlement within the meaning of these statutes. When Theorus Thompson lost his residence here by acquiring a new domicile in Kansas, he also lost his settlement in Delaware township. • Upon his return, with the intention of remaining, this again became his residence, but it does not appear from the evidence that he acquired a settle ment in Delaware township, but residence only. In such cases by the Act of 1854, the liability for his maintenance falls ■upon the Count}'. See Danville and Mahoning Poor District v. Montour Count}', 25 Smith 35, wherein on page 38 Justice GobdoN considers such liability to result from said Act of Assembly.</p> <p>We are of opinion that Theorus Thompson had no settlement in Delaware township at the time he was committed to the hospital, and that the county is liable for his maintenance there, and not»said township, and that therefore the rule to show; cause, &e., must be discharged. And now, 28th of 1884, April, rule discharged.</p> <p>Juniata County thereupon toot this writ of error, assigning for error the conclusions of law set forth in the above opinion, and the discharge of the rule to show cause.</p> <p>Gaining a settlement in another State does not lose the last settlement in the State where born. Inhabitants of Townsend v. Inhabitants of Billerica, 10 Mass. 411; Inhabitants of Canton v. David N. Bentley, 11 Mass. 441. The old settlement continues until he gains a new one; it is a permanent thing, it lasts during life or until a new one is acquired: 3 Burns Justice 448.</p> <p>The case is analogous to a female who marries a husband who resides in another district, but has no settlement there and never acquires one ; upon the death of the husband, the old settlement of the wife remains. Ibid : Buffaloe v. White-deer, 3 Harris 182. It is well settled that a settlement in this state is not lost until another is acquired, no matter how long the pauper may have wandered from one district to another. And as the provision in our statutes for the removal of paupers into other states is nugatory, because there is no power by which it can be carried into effect (Limestone Township v. Chillisquaque, 6 Norris 294), the settlement remains. The learned judge relied on Toby Township v. Madison, 8 Wright 60, in which the court say: “ Under our statutes the removal is to be to the place where the pauper was last legally settled, whether in or out of Pennsylvania.” But it has since been decided that the courts of this state have no power to send a pauper beyond the limits of our own state: Limestone Township v. Chillisquaque, 6 Norris 294. The lunatic was committed to the hospital under § 6 of Act of April 20th, 1869 (P. L. 78, Purd., 970, pi. 6.). This act makes no provision for the support and maintenance and expenses of removal of the persons so committed. The liability must be fixed by either the 11th section of Act of April 14th, 1845 (P. L. 44Í, Purd. 971, pi. 19), the latter clause of which in regard to cases “ where such person has no legal settlement in any township or district in this Commonwealth, but only a residence therein,” would seem to be repealed by the Act of February 17th, 1854 (P. L. 85, § 1, Purd. 972, pi. 20). And this Act of February 17th, 1854, is inconsistent with the Act of April 8th, 1861 (P. L. 249, § 4, Purd. 973, pi. 31), which enacts, “ whenever an indigent insane person shall hereafter be sent to said hospital, the city or county from which he or she was sent, shall be liable to the trustees of the hospital for his or her maintenance, and shall have remedy over against the proper township where by existing laws the township is liable for the support of such pauper, and the overseers of the poor of such township shall have remedy over against the property of the pauper, or against any relative required by law to maintain him or her to the extent of their liability under the poor laws.” What do the words “existing laws’’mean in this section ? To what Act or Acts of Assembly do they refer ? Evidently to the Act of June 13th, 1836, Poor Laws. This is a general law relating to all classes of poor, sane or insane, and most likely to have been in the mind of the legislature when the Act of 1861 was passed. Besides this construction would produce uniformity throughout the state. The Act of April 8th, 1861, is very similar to the first section of the Act of April 22d, 1863 (P. L. 539, Purd. 974. pi. 34) in relation to Western Pennsylvania Hospital, under which it was held the township was liable: Harmony Township v. Forest county, 8 W. N. C. 37.</p> <p>The decision of this Court is the very opposite of the doctrine announced in the two Massachusetts cases cited by plaintiff in error. In Limestone v. Chillisquaque, 6 Norris 294, it is ruled that where one abandons his settlement in Pennsylvania, and acquires a new one in another State he not only loses his settlement in the former State, but ceases to be a citizen thereof. On this authority the pauper must be regarded as a foreigner, so far as the poor laws of the state are concerned. Thompson having lost his settlement in Delaware township by having acquired one in Kansas, the next question is: does the liability of Delaware Township, for his maintenance, continue so as to give the county a remedy over against it. The answer to this question must depend not on the poor laws, but on the statute regulating the transfer of insane paupers to the State Lunatic Asylum. The 11th Sec. of Act of April 14th, 1845 (Purd. 971, pi. 19), makes it the duty of courts “ to certify to the trustees the legal settlement of such person, if he or she have any legal settlement in this commonwealth ; and if such persons shall have no such settlement, then to certify the place of residence of such person at the time of offence committed; and the poor district so certified to be the place of settlement or residence of such person shall be chargeable with the expenses of his or her care or maintenance and removal to and from said asylum.” This refers to insane criminals, but may be applicable also to the case of insane paupers. If there were no other Act of Assembly the liability of Delaware township to the county would hardly be questioned. But the Act of February 17th, 1854 (Purd. 972, pi. 20), provides: “ That where such person has no legal settlement in any township in this commonwealth, but only a residence therein, the county shall be chargeable.” When an indigent insane person is placed, by direction of the court, in one of the. lunatic hospitals of the state, the county is primarily liable to the trustees for his or her care and maintenance, with remedy over against the township or poor district “ where, by existing laws, the township is liable for the support of such pauper,” the township or poor district to be reimbursed out of the estate of the lunatic, if he or she has any, or by relatives if they are of sufficient ability: Ex parte Blewitt, 32 Leg. Int. 336. The “ existing laws ” under which a township or poor district, as the case may be, is made liable for the maintenance of paupers in a State Lunatic Hospital, are to be found in but a single section of the Act of April 14th, 1845 (Purd. 971, pi. 19), namely § 11. This section provides, that it shall be the duty of the. court, in all cases where they shall commit" any person to the asylum, to certify to tbe trustees tbe legal settlement of sucb person if be or sbe have any legal settlement in this commonwealth, and if such person shall have no sucb settlement, then to certify tbe place of residence of such person, and the poor district so certified to be the place of settlement or residence of sucb poor person, shall be chargeable with the expense of bis or her care and maintenance, and removal to and from said asylum. This certification, however, is not to be made until after due notice has been given to the constituted authorities having control of the poor in the township or district to be charged, and this notice is material; for, under the first section of the Act of February 17th, 1854, Purd. 972, pi. 20, which was a supplement to the Act of April 14th, 2845, and which very properly recognizes a distinction between a legal settlement and a residence as applied to paupers, a township or district thus notified might come into court and show that some other district was the true place of settlement of the lunatic, and thus legitimately escape liability (Shenango Twp. v. Wayne Twp., 10 Cas. 184) ; or that the lunatic was not settled in such district, but only resided therein at the time-of the transfer to the asylum; in which case tbe liability for care and maintenance would fall upon the county. The case of Overseers of the Poor of Harmony Twp. v. Forest County, 10 Nor. 404, was under the Western Hospital Act and has no application here.</p>

18. This was an appeal by Francis Jordan and George W. Porter from a decree of the said court, dismissing their exceptions to the Auditors’ report in the matter of the distribution of the assigned estate of Casper S. Bigler.

<p>1. An owner of real estate cannot by leasing the same to a tenant avoid liability to a third party for the continuance of a nuisance on the premises which before such leasing it was Ms duty to abate.</p> <p>2. A lessor out of possession is liable in damages to a third party foi; the continuance by his tenant of a nuisance arising from a privy well and private sewer on the leased premises which was either defectively constructed, or was obstructed and out of repair at the beginning of the lease.</p> <p>3. Semble, that the tenant, if he contributed to the existence of the nuisance, would also be liable to a third party injured thereby.</p>

<p>A married woman, owning separate real estate, contracted with me-diamos to make repairs and improvements on the same, and while tlio work was in progress, being unable to pay the workmen, she borrowed money for that purpose, and so applied it. She afterwards died without having repaid the loan. Upon the distribution of her separate estate by an auditor: Held, that in the absence of evidence showing affirmatively that such repairs were necessary, and a finding of the auditor to that effect, the party who loaned the money could not maintain a claim to be repaid the same out of the fund for distribution.</p>

<p>Appeal from tbe Orphans’ Court of Cumberland county: Of May Term, 1884, No. 36.</p> <p>This was an appeal by George Sponsler from a decree of said Court in the matter of the distribution of the funds in the hands of John Hays, executor of the last will of A. L. Sponsler.</p> <p>From the report of J. M. Weakley, Esq., the Auditor to whom the distribution of tbe balance in tbe bands of the executor was referred, the following facts appeared: The fund for distribution was made up of a cash balance of tbe personal estate, together with some unconverted securities held by testator in his lifetime.</p> <p>Testator’s will dated November 19th, 1880, provided, inter alia, as follows:—</p> <p>“I also give and bequeath to the said Alice fifteen shares of ‘second preferred’ Cumberland Valley Railroad stock, and one second mortgage, $500, Bond (No. 1) of the said R. R. Company.”</p> <p>A codicil, dated June 28th, 1882, (the day before he died) began as follows: — ■</p> <p>“I further give to my cousin Alice Rheem, in addition to what I have given her by my will, fifteen shares of Cumberland Valley R. R. stock, preferred, one-Cumberland Valley R. R. eight per cent, bond, and thirty shares of Car Deposit Bank stock.” Then follow several legacies to other persons.</p> <p>The will and codicil were proved July 3d, 1882, and letters testamentary were granted to John Hays; the executor.</p> <p>The appellant, George Sponsler, a brother of the testator, was one of the residuary legatees under the will above inferred to.</p> <p>It was admitted before the Auditor, that testator wrote his own will, but that the codicil was written for him by counsel; that the will was not read nor examined at the time the codicil was written, and that testator dictated the codicil to counsel who wrote it.</p> <p>It was also admitted that, at the time of his death and for several years prior to it, including the time when he made his will, ■ testator had but fifteen shares of Cumberland Valley Railroad stock.</p> <p>The principal contention before the Auditor was upon the construction of the portion of the will and codicil above quoted. The appellant sought to limit the claim of the legatee to the specific fifteen shares of stock actually owned by testator at the time of making his will, and up to the time of his death; but the legatee, claiming that she was entitled to thirty shares of stock in all, under the will and codicil, averred her willingness to accept out of testator’s personal estate the cash value of the additional fifteen shares of stock bequeathed to her in the codicil.</p> <p>The Auditor concluded that thé legacies of stock were not specific, but were general; and he therefore awarded the fifteen shares of stock in kind to the legatee, together with the cash value of fifteen additional shares. He also awarded two mortgage bonds to her.</p> <p>Exceptions were filed to the Auditor’s report, that he erred in awarding both the cash value, of. the additional fifteen shares of stock, and the additional bond, on the ground that the bequests of the codicil were but repetitions of the legacies contained in the body of the will.</p> <p>The Court (HERMAN, P. J.) dismissed the exceptions, and confirmed the report of the Auditor (no opinion filed), whereupon George Sponsler took this appeal assigning for error tbe dismissal of his exceptions to the Auditor’s report, and the decree of the court.</p> <p>The intention of the testator must govern. This testator could not have meant to give the legatee what he never had to give. Why, then, give her money in lieu of the additional fifteen shares of stock and two bonds, when it is manifest that he never intended to give her more than one ? The Auditor does not refer in his report to the distinction between the cumulation and the repetition of legacies, but decides the case upon the question as to general and specific legacies, and we submit that in finding that the legacy in the will of the fifteen shares of stock was general and not specific the Auditor erred, for it was the only stock testator had, and if it clearly appears from the context that the testator meant to bequeath the identical stock he was possessed of at the date of his will, such manifest intention will render the legacy specific, although testator' has not expressly declared such intention nor expressly referred to the stock; 2 Williams on Executors, 6th ed., page 1259, note (1).</p> <p>The real question involved is, whether the legacies are cumulative or repetitive. We contend they are the latter. If a legacy be of some specific thing, and be repeated ever so many times in the will or codicils it can only amount to one bequest, since the same identical thing can only be bequeathed once. There is no presumption either against or in favor of accumulation where the repetition occurs in a codicil, as here. It is in all cases a question of intention, to be sought for and collected from the language of the testator, taking the will and codicil together: Westcott v. Cady, 5 Johnson’s Ch. Rep. 884; Jones v. Executors of Creveling, 4 Harrison (N. J.) 129; For clear and careful distinction between cumulative and repetitive legacies see: Williams on Executors, 1899 and 1400, 6th American edition; Perkins’s Notes, section 7 ot Cumulative Legacies; Notes to Hooley v. Hatton, 2 L. Cas. Eq. *346.</p> <p>The cases in which this question arises, may be classed under two heads: 1st. Where there is no evidence of the testator’s intention apparent on the face of the will. 2nd. Where there is such internal evidence.</p> <p>1st. When there is no internal evidence of intention, the following positions of law appear established :</p> <p>(a). If the same specific thing is bequeathed twice to the same legatee in the same will, or in the will, and again in a codicil, in that case he can claim the benefit of one legacy only, because it could be given no more than once.</p> <p>(5). When two legacies of quantity of equal amount are bequeathed to the same legatee in one and. the.same instrument, then also the same bequest is considered a mere repetition, and he shall be entitled to one legacy only.</p> <p>(c). When two legacies of quantity of unequal amounts are given to the same person' in the same instrument, the one is not merged in the other, but the latter shall be regarded as •cumulative, and the legatee is entitled to both.</p> <p>(d). When two legacies are given simplieiter to the same legatee by different instruments, in that case, also, the presumption is, that the latter is cumulative, whether its amount be equal or unequal to the former. But the presumption may be rebutted if the Court can find in the context of the instruments an intention that the latter gift shall be substitutional.</p> <p>2d. When there is internal evidence of the intention of .the testator. ' In many cases the will or codicil affords intrinsic ■evidence that the second gift was intended by the testator as •a mere substitution for the first, and consequently that one legacy alone was intended. For example where a latter codicil appears to be a mere copy of the former, with the addition of a single legae.y, or where it is manifest that the latter instrument was made for the purpose of explaining or better ascertaining the legacies bequeathed by the former. So if in two instruments the legacies are not given simplieiter, but the •motive of the gift is expressed, and in ■ both instruments the same motive is expressed, and the same sum is given, the Court ■considers the two coincidences as raising a presumption that the testator did not, by the second instrument, mean a second .gift, but meant only a repetition of the former gift.</p> <p>We take it that the same specific things have been bequeathed to the legatee in this case in both will and codicil. All the attributes of a repetition are apparent in this codicil.</p> <p>1st. It is one of “ those instruments drawn in extremis .... ■and.executed without being read over and examined 'by the testator.and the legacies unintentionally repeated, in the same, or in nearly the same language. All we have to do then, in the application of this rule, is to be satisfied that the alleged repetition was the effect of forgetfulness in the testator:” Jones v. Executors of Creveling, supra.</p> <p>2d. Whilst the introductory words of the codicil are, “I further give to my cousin, Alice Rheem in addition to what I have given her by my will, [the stock and bond] and thirty shares’ of Carlisle Deposit Bank Stock;” these words can with perfect propriety be applied to the Carlisle Deposit Bank Stock alone, for that he had not already specifically disposed of. The Bank Stock was not a repetition of a former legacy, but “ the addition of a simple legacy,” the right to which we do not dispute.</p> <p>3d. A glance at the will shows the internal likelihood, the possibility that 'the error that has occurred, would occur. (1) The legatee was the chief object of his bounty. (2) In his will he devised and bequeathed to her other property and chattels. Was it not most likely that when he was thinking last of her of whom he thought most, he forgot the details of what he had given her, and in giving the stock and the bond, with the Carlisle Deposit Bank Stock, repeated the former in the bequest of the latter.</p> <p>The English cases in point are numerous, where similar legacies have been construed to be repetitive: lleming v. Glutterbuck, 1 Bligh N. S. 479; Allen v. CalLow, 3 Ves. 289; Lee v. Pain, 4 Hare 201; Moggridge ¶. Thackwell, 1 Ves. Jr. 472; Fraser v. Byng, 1 It. & My. 90; Garth v. Meyrick, 1 Bro. Ch. Rep. 30; Westeott v. Cady, 5 Johns. Ch. 334.</p> <p>The language of the bequest in the codicil varies slightly from that in the will, but neither law nor reason demands that a repetition of a bequest should be in totidem verbis-. Jones v. Executors of Creveling, supra; Coote v. Boyd, 2 Brown 521.</p> <p>Regarding this as a case of first impression, so far as the jurisprudence of this state is concerned, we respectfully submit whether the rule of the civil law, which puts the case on the testator’s intention and presumes against accumulation and in favor of repetition (Corpus Juris Civilis, Dig. 30, 1, 34, et 22, 3, 12), does not better accord with reason and justice than that laid down in England, of which Lord Thuelow averred that it “had tended to throw property into jeopardy and uncertainty:” Ridges v. Morrison, 1 Brown’s Chancery Reps. 393; DeWitt v. Yates, 10 Johns. 159.</p> <p>There is no ambiguity in the will or the codicil. The controlling words of the bequest in the codicil are : “ I further give.in addition to what I have given her by my will.” The intent is clear, and cannot be outweighed by an imaginary presumption that the testator forgot the bequest in the will. The bequest of the fifteen shares of stock was clearly a general legacy, and the fact that testator possessed at the time just fifteen shares of that stock does not make it specific : Hawkins on Wills, 301; Eckfeldt’s Estate, 7 W. N. C. 19. The bequest in the codicil of fifteen shares of the stock was also general; hence the two general legacies go to the legatee. The intention of the testator and the law applicable to it have been rightly construed and applied by the court below. The elaborate presentation of the law relating to repeated legacies in the appellant’s brief may be of use in some other case, but it does not apply to the one at bar.</p>

<p>. built a row of eight houses in the city of Harrisburg, and provided them with five hydrants and one pavement washer. He rented the eight buildings to as many different tenants, who used the five hydrants and one pavement washer for the purposes of the eight houses. A. was charged by the city and paid for some years, until his death, the same amount in water rents, as he would have been charged had each of the eight tenants used a separate hydrant and pavement washer. Upon his death in 1875, B., as the agent of Ms heirs at law, continued to pay the water rents on the said basis until in 1880, when he refused to pay for that year for more than five hydrants and one pavement washer. Upon the threat of the city to cut off the water supply from, said buildings, A.’s heirs at law filed a bill in equity praying for an injunction to restrain the city from so doing, and alleging that the use of the water by the eight tenants was without the knowledge and authority of the complainants :</p> <p>Held, that the above facts were sufficient to justify the inference that the heirs at law did authorize and permit the use of the water by the tenants.</p> <p>Held, further (without deciding the legal merits of the controversy), that the complainants presented no sufficient ease to warrant the interference of a court of equity.</p>

38. Trover and conversion by Henry M. Watts, and William M. Watts, trading as Henry M. Watts & Son, against J. C. Lehman, to recover… Held: as in Ege et al. v. Kille et al., 3 Norris 333, they would be fixtures and part of the realtyand if the owner, that is, the landlord, who is this defendant, took possession of the premises under a claim that the lease was forfeited before this property was severed from the realty, and it still remains a part of the realty, I cannot…

<p>1. Where, in a contested election for senator, the law judge of the judicial district in which the contest arose is disqualified from sitting in the •" case, it should he certified to the law judge residing nearest the courthouse of the county in which the trial is required by law to be had.</p> <p>2. The seventeenth section of the Act of May 19th, 1874, relating to contested elections of senators, provides that in case “there shall be no law judge of the district in which any contest shall arise” qualified to act, “the judge learned in the law residing nearest the court-house of the county, in which by the provisions of this Act the trial in any such case is required to be had, shall preside on the trial,” etc.:</p> <p>Held, that the “ district ” referred to in said Act is the judicial district and not the senatorial district.</p> <p>8. A senatorial district was composed of two counties, each of which 'formed a separate judicial district. A petition was filed in the Common Pleas of one of said counties contesting an election for senator. The judge of said county being disqualified from acting, called ‘upon the President Judge residing- nearest the court-house of said county (whose judicial district was not within the said senatorial district), to sit in the case. His jurisdiction was excepted to on the ground that the President Judge of the other county within the senatorial district, was alone qualified to act, under the provisions of the Act of May 19tii, 1874:</p> <p>Held, that the objection was not well taken, and tliat the President Judge, to whom the case was certified, had jurisdiction under said Act.</p> <p>4. A judge having jurisdiction of a contested election case, in which, by agreement of the parties, no testimony was taken, and the respondent admitted that the contest was not without probable cause, decided, in accordance with said admission, that the contest was not without probable cause, and entered a decree apportioning the costs of the contest between the counties forming the senatorial district in which the contest arose; and a mandamus execution was issued to enforce payment of said apportioned costs:</p> <p>Held, that there was no error in said decree or execution.</p>

<p>Where, in a partition of real estate in the Orphans’ Court, in the year 1817, the land was sold, and the purchase money was secured by recognizance to be paid to the several heirs, one of whom was a married ■woman, who executed and filed a declaration, in pursuance of the Act of March 29th, 1882, that she did not require her husband to give security upon payment to him of her share, and she afterwards died before the whole of her share became due and payable — Held,</p> <p>(1) That the sale in partition absolutely converted -her interest into personalty.</p> <p>(2) That the effect of the above declaration by the wife was to vest absolutely in her husband the right, as a chose in action, to the wife’s share, not only of such money as might become due and be paid to him during her life, but to all that might become due, whether prior or subsequent to her death.</p> <p>(3) That after the wife’s death her heirs or personal representatives had no right to any portion of such funds secured by the recognizance, as against the individual claim of the surviving husband.</p>

48. This was an action of covenant, upon a policy of life insurance for $5000, by Margaret A. Friese against the Homeopathic Mutual Life Insurance Company of New York.

<p>Appeal from the Court of Common Pleas of Cumberland county: Of May Term, 1884, No. 58.</p> <p>Appeal by John Jacobs, trustee of Mrs. C. B. Rupp, from a decree of said court confirming the report of an Auditor appointed to make distribution of a fund resulting from a sheriff’s sale of certain real estate under judgments confessed by the purchaser.</p> <p>The following facts (which are more fully set out in the opinion of the Supreme Court), appeared before the Auditor, John R. Miller, Esq.: D. H. Gill contracted with C. B. Rupp for the sale of a certain house and lot on Bedford street in the borough of Carlisle. The consideration, which was $4,000, was provided for as follows : Rupp assumed the payment of a $1,000 mortgage against the property held by Mrs. Miller. Of the remainder, $1,000 was paid by a transfer to Gill of a judgment of that amount against one George Rinesmith, held by Mrs. C.' B. Rupp; $500 was paid in cash on the delivery of the deed to Rupp, and on the same day Gill’s agent, one Joseph Shrom, received from Rupp’s attorney, Mr. Hays, a judgment bond of C. B. Rupp for the balance of $1,500.</p> <p>At the same time Rupp executed a judgment bond to John Jacobs, trustee for Mrs. Rupp, for $1,000; and when Mr. Hays gave Shrom the judgment bond in favor of Gill he told him (Shrom) that he ought to enter it up at once, because he (Hays)’ had a judgment bond which Rupp had given to his wife, and which Would be entered the next day.</p> <p>Mr. Hays accordingly entered up the judgment bond in favor of Mrs. Rupp on the following day, April 2d. But Shrom did not enter Giil’s judgment until April 3d. Subse-qnently the property was sold under the Gill judgment, bought by Gill, subject to the mortgage, for $1,305, and the fund paid, into court.</p> <p>In reference to the distribution of this fund the Auditor reported as follows:</p> <p>“ It seems to your Auditor from this state of facts that it is a reasonable conclusion that the understanding between all the parties tb this transaction, except John Jacobs and Mrs. Rupp, who nowhere appear in this audit, was that the Gill judgment should be entered first and be the first lien; for certainly Mr. Hays, careful business man as he is, would not have told Shrom to enter the Gill judgment at once, as he would enter Mrs. Rupp's the next day, unless his clients knew and were satisfied that the Gill judgment should be entered first. The conclusion, therefore, with the Auditor is irresistible that the understanding and intentions of the parties were that Mr. Gill’s judgment for purchase money should be paid before that of Mrs. Rupp, and it is hardly presumable that either Mr. Gill or Mr. Shrom would deliver the deed without some such understanding, as otherwise Gill’s judgment would be jeoparded. While the Auditor has no doubt as to the intention and understanding of the parties, be is not entirely free from doubt as to tlie proper distribution of the fund; there is no evidence of any actual agreement between the parties that the Mrs. Rupp's judgment was not to be entered until after the entry of the Gill judgment, and there is no doubt that Shrom was negligent in not entering the Gill judgment when he knew there was another judgment outstanding. He believes, however, that tlie understanding and the intention of the parties at the time of the transaction, as between themselves, should control this distribution.He, therefore, awards the fund, after deducting the costs of this audit, to the judgment of C. H. Gill v. C. B. Rupp.”</p> <p>Exceptions filed to this report by Jacobs, as trustee for Mrs. Rupp, on the ground that the fund should have been awarded to the latter on her prior lien, were dismissed by the court, HiskmaN, P. J., delivering the opinion, and a decree entered confirming the report. Whereupon Jacobs, trustee, &c., took tbis appeal, assigning for error tlie decree of the court.</p> <p>The, auditor expressly found that there was no evidence of any actual agreement between the parties that Mrs. Rupp’s judgment was not to be entered until after the entry of the Gill judgment; and further, that “Shrom was negligent in not entering the Gill judgment when he knew there was another judgment outstanding.” Gill’s judgment being entered two days after the convejmnce, was a lien only from its entry and did not exclude a judgment entered before it and after delivery of deed: Watt v:Steel, 1 Barr 886; Lyon v. M’Guffey, 4 Barr 126 ; Brown v. M’Cormick, 6 Watts 60. The fact that it was for purchase money makes no difference: Kauffelt v. Bower, 7 S. & R. 64; Semple v. Burd, 7 S. & R. 286; Zent-myer v. Mittower, 5 Barr 412; Ayer’s Appeal, 4’Casey 179; Rigler v. Light, 9 Norris 235.</p> <p>It is claimed by the appellee, so found by the Auditor, and approved by the court, that the balance of the purchase money for the property sold by Gill to Rupp, should be a purchase money judgment, and as between Rupp and Gill, be a first lien upon the property deeded to Rupp, after the mortgage to Mrs. Miller. The parties had a right to make such an agreement and the courts will enforce it: Ayer’s Appeal, 4 Casey 179,180; Hendrickson’s Appeal, 12 Harris 365; Claason’s Appeal, 10 Harris 363, 364; Maze v. Burke, 35 Legal Int. 396; Rigler v. Light, 9 Norris 235, 237; Gillig v. Maass. 1 Tiffany (N. Y.) 216; Freeman v. Schroeder, 43 Barb. 619, 620 ; 29 Howard, Pr. (N. Y.) 263.</p>

25. Appeal by Jacob Kost, administrator of the estate of Jacob Mussleman, deceased, from the order and final decree of said court, in proceedings to review the account of said administrator, under the Act of October 13tb, 1840. Jacob Mussleman died in December, 1875, and letters testamentary on bis estate were granted to Jacob Kost, witb whose father, John Kost, Mussleman had lived for many years.

<p>Error to the Court of Common Pleas of Dauphin county: Of May Term, 1888, No. 36.</p> <p>This case was, in the court below, an appeal by Pullman’s Palace Car Company from a settlement of account by the accounting officers of the Commonwealth, charging the said corporation with the sum of $1,395.17, for tax on gross receipts, under the seventh section of the Act of June 7th, 1879 (P. L. 112), for six months ending December 31st, 1.882, at the rate of eight tenths of one per cent., said gross receipts “derived from all sources in the State of Pennsylvania,” amounting, as per report filed, to $174,396.35.</p> <p>The company appealed from said settlement and filed the following specifications of objection:</p> <p>The said settlement is erroneous and illegal because :</p> <p>1. The Act of June 7th, 1879, taxes only receipts derived from “ tolls and transportation, telegraph business or express business,” and as stated in the report upon which the account hereby appealed from purports to be based, no part of the receipts upon which the tax is charged was derived from such sources. Pullman’s Palace Car Company has no authority to engage in the business of transportation, and has never, in any way, either directly or indirectly, engaged in the business of transporting either freight or passengers, nor derived any receipts whatever from such business.</p> <p>2. Pullman’s Palace Car Company is a corporation of the State of Illinois, and at the time when the tax claimed is alleged to have accrued, or become due, and also at the time of the settlement of the account by the Auditor General, the receipts upon which tax is charged were the personal property of said company, at Chicago, Illinois, mingled with its other receipts and personal property, and were not subject to taxation by the State of Pennsylvania.</p> <p>3. The taxation by the State of Pennsylvania of property owned in Illinois by a corporation of Illinois, is in violation of a necessary implication of the Constitution of the United States, that each state shall have jurisdiction only over property within its territorial limits.</p> <p>4. If the Act of June 7th, 1879, imposes a tax upon the receipts of Pullman’s Palace Car Company, then0tlie said Act is in violation of clause four, section eight, of article one of the Constitution of the United States, and therefore is void.</p> <p>The case was, by agreement, as provided in the Act of April 22d, 1874, tried without a jury, before SiMONTON, P. J., whose findings of fact and conclusions of law were as follows:</p> <p>Defendant is an Illinois corporation, with its principal office in Chicago. It has authority, by its charter, “ to manufacture, construct and purchase railway cars witli all convenient appendages and supplies for persons travelling thereon, and the same may sell or use or permit to be used in such manner and upon such terms as the said company may think fit and proper.”</p> <p>During all the period for which tax is charged in this case, it had and still has contracts to furnish, and did and does furnish to many railroad companies, in this and other states, sleeping and parlor ears to be run upon the roads of said companies on the following terms : The cars furnished by defendant are attached to and made part of the trains upon said railroads, no charge being made by either party against the other. The railroad companies sell the usual tickets or collect the usual fare from passengers, which entitles them to travel on the train, but does not give them the right to be transported in the defendant’s cars. For this right an additional sum is paid to the defendant, which entitles the passenger to be transported in the cars of defendant, and to the use of the sitting and sleeping accommodations with which they are furnished while being so transported.</p> <p>Most of these cars run and carry their passengers from some other state into Pennsylvania, or from the latter into some other state, and many of them run continuously through this state.</p> <p>The cars used or furnished by the defendant to railroads in Pennsylvania were leased by it from a corporation of this state known as the Central Transportation Company, to which defendant paid an annual rental during the period for which tax is charged in this case, which exceeded the amount of the gross receipts accruing to it for business done in this state. Said Central Transportation Company has regularly paid all taxes claimed from it by the state.</p> <p>The gross receipts upon which tax is charged in the settlement appealed from accrued from the business carried on by defendant in this state, in the manner above stated, a large portion thereof having been received from passengers carried into, out of, or through the state. These receipts went into the general treasury of the company.</p> <p>Defendant, on these facts, denies all liability for tax upon gross receipts in this state—</p> <p>First. Because the Act of June 7th, 1879, under which the tax is charged, taxes onN receipts derived from “ tolls and transportation, telegraph and express business,” and defendant claims “ that no part of the receipts upon which tax is charged was derived from such sources.”</p> <p>This raises the question whether the receipts of defendant derived from its business, conducted as above stated, were, within the intent and meaning of said Act, paid to it “ for transportation; ” it not being pretended by any one that they ■were paid either for tolls, telegraph, or express business. A careful examination of section seven of the Act will show that its scope extends beyond companies engaged directly in the business of “transporting freight or passengers.” It imposes the tax upon “every company.leasing to or from another corporation, company, or limited partnership any ..... device for the transportation of freight or passengers ; ” it includes “ any palace car and sleeping car company,” and it provides that “ where the works of one corporation, company, or limited partnership are leased to or operated by another corporation, company, or limited partnership, “ they shall adjust the taxes between them, but “ the Commonwealth shall first look to the corporation, company, or limited partnership operating the works,” and if the tax is paid by them the lessor company “ shall not be held-liable under this section for any tax upon the proportion of said receipts received by it as rental for the use of said works.”</p> <p>It appears, therefore, from the express language of the Act, that any company leasing to another “ any device for the transportation of freight or passengers,” is liable to the tax, and that the rental received is understood by the Act itself to be received “ for transportation.”</p> <p>But, apart from the interpretation whieh the scope of the Act requires, to be put upon the terms “for transportation,” let us endeavor to ascertain what is the precise nature of the business in which defendant is engaged, as shown by the facts found. It is the owner or lessee of the cars for which consideration of the receipt of the ordinary fare from those who use tliem, the railroad companies agree to furnish the motive power to draw them. And for the consideration of the use of this motive power, the defendant agrees that the railroad companies may receive the ordinary fare. But the payment of this does not entitle the passenger to be transported in defendant’s cars, nor do the railroad companies undertake so to transport him. For this privilege he must pay an additional price to the defendant, and if this did not entitle him to be so transported, he would never pay it. The main purpose of the passenger in taking his seat or sleeping-berth in defendant’s ear, is to be transported. The sitting on one of their chairs — more comfortable, perhaps, than a seat in the first-class railroad car — or lying in one of their berths, is a mere incident. The passenger is influenced by precisely the same motives and feelings as be is who pays full fare, and travels in a first-class car, instead of taking second-class at a reduced rate. In either case the price paid is primarily for transportation, the only difference being that in one case a higher price is paid for better accommodations by the way. If llie railroad companies owned the palace and sleeping cars, and charged those passengers who chose to travel in them a higher rate of fare than those paid who travelled in their other ears, no one would think of claiming that the sum realized from the difference of rate, was not received “ for transportation,” but that the transaction is divided between the two cannot change its essential character.</p> <p>[We hold, therefore, that both by the terms of the Act of June Ttli, 1879, and from the nature of the business transacted by defendant in this state, the gross receipts reported by it were received “for transportation,” and are taxable and properly taxed in the settlement appealed from in this case.]</p> <p>We do not intend to decide anything as to the receipts for meals furnished to passengers “ en route.” There is nothing in the case to show that there are any such included in the sum taxed, and if there be, defendant has not shown that fact, and it is not, therefore, in tbe case.</p> <p>Second. Defendant contends that these gross receipts are not taxable in this state, because it is an Illinois corporation, and at the same time the tax was claimed, and the settlement was made, these receipts were the personal property of the company at Chicago, mingled with its other property, and that the taxation of property owned in Illinois, by a corporation of that state, is forbidden by the Constitution of the United States.</p> <p>We are not aware that there is any provision in the Constitution of the United States which forbids the taxation of personal property without the jurisdiction of the state, if its owner be within the jurisdiction. The state must have jurisdiction of the property or the person, but not necessarily of both. Here, the defendant doing business within the state, is within its jurisdiction, and its right and power to tax the property acquired here, cannot be defeated by removing the property beyond its border.</p> <p>[We hold that the gross receipts of defendant accruing from business done in Pennsylvania are legally taxable here, although they may have gone into its general treasury in Chicago before the tax became due, and that such taxation is not forbidden by the Constitution of the United States.]</p> <p>Third. Defendant contends — and in doing so, as we understand it, merely makes the second objection, which we think is involved in this, more specific — that “if the Act of June 7th, 1879, imposes a tax upon receipts of defendant, said Act is in violation of clause four, section eight, of article one of the Constitution of the United States, and therefore void.”</p> <p>This objection cannot be sustained. The point has been settled for the present, at least, by the case of State Tax on Railway Gross Receipts, 15 Wallace 284. There was a strong dissenting opinion by Mr. Justice Mitjoer, concurred in b}*- two other judges, in that case, but until it is, if ever, overruled, we- are bound by it, and so long as the court which decided it does not restrict it to the case of corporations chartered by the state imposing the tax we shall not undertake to do so.</p> <p>[We decide that the Act of June 7th, 1879, does impose a tax upon, the receipts of the Pullman Palace Car Company, and in doing so does not violate clause four, section eight, of article one of the Constitution of the United States.]</p> <p>Upon the whole case defendant is liable to the tax charged in the settlement, the amount of which is as follows :</p> <p>Amount of settlement dated March 15th, 1883 . $1,395.17</p> <p>Attorney General’s commission . . . 69.75</p> <p>Total ....... $1,464.92</p> <p>For which sum let judgment be entered in favor of the Commonwealth and against defendant, unless exceptions be filed according to law.</p> <p>The defendant filed exceptions to the portions of the foregoing decision inclosed within brackets, which exceptions the court overruled, and judgment was duly entered for the Commonwealth in accordance with the decision; whereupon the defendant took this writ of error, assigning for error the overruling of said exceptions and the said judgment.</p> <p>Tbe seventh section of tlie Act of June 7th, 1879, tinder which this tax is claimed, does not apply to all corporations, nor to all the receipts of such corporations as may be in terms mentioned in it, but only to such receipts as are derived from “ tolls and transportation, telegraph business, or express business.” If this company has no receipts from transportation it is not liable for this tax. Its relation to the railroad companies has been the subject of judicial investigation in the state which created it a corporation, and is thus tersely stated by SheldON, J., in Pullman’s Palace Car Company v. Chester M. Smith, 73 Ill. 360: “ The company has no interest in the fare paid by the passenger to the railroad company for transportation, and the railroad has no interest in the prices paid the Pullman’s Palace Car Company for berths; the latter receive pay for sleeping accommodations, none whatever for transportation.” The company, as may be seen from its charter, has none of the powers incident to a transportation company. It manufactures and owns, or leases, cars known as sleeping coaches and hotel cars, which it permits to be used upon railroads. It has no right of eminent domain, no railroad or motive power. The railroad company alone transports the passengers. The Pullman Company is simply a hotel company on wheels. It provides lodging and rest for the weary, and meals for the hungry. It does not make any contract to carry a passenger. It will not even sell him a berth until he shows that he has paid the railroad company for his transportation. The Pullman Company receives pay only for the incident. Tn case of an accident to a passenger caused by a defect in a Pullman palace car in which be is travelling the railroad company is alone held liable, for the car must be turned over to that company in good order, and be approved by its general superintendent, and if it gets out of order it is the fault of the railroad company. The Act of 1879 does not tax receipts incident to transportation, but only those for transportation. These receipts are derived by tbe railroad company, which does pay the tax thereon.</p> <p>The tax is imposed upon property not within the jurisdiction of the state, and is therefore in violation of a necessary implication of the Federal Constitution : State Freight Tax, 15 Wall. 232; Ins. Co. of N. A. v. Commonwealth, 6 Norris 173. While there is no express provision in the Federal Constitution which forbids the taxation of property without the jurisdiction of a state, the owner being within the jurisdiction, there is, nevertheless, a necessary implication that the sovereignty of each state shall extend only to property within its jurisdiction: St. Louis v. The Ferry Company, 11 Wall. 423. Hut in the case at bar the state has jurisdiction neither of the person nor of the property. The plaintiff in error is a corporation of Illinois, has its domicile there, and cannot migrate to another sovereignty: Potter on Corporations § 10; Bank of Augusta v. Earle, 13 Pet. 586 ; Paul v. Virginia, 8 Wall. 168; St. Louisa. Perry Co., 11 Id., 423'; Commonwealth v. Standard Oil Co. 5 Out. 119.</p> <p>The tax is in violation of the inter-state commerce clause of the Federal Constitution. The court below found, as facts, that “ Most of these cars run and carry their passengers from some other state into Pennsylvania, or from the latter into some other state, and many of them run continuously through this state.”' Also: “ The gfoss receipts upon which tax is charged in the settlement appealed from accrued from the business carried on by defendant in this state in the manner above stated, a large proportion thereof having been received from passengers carried into, out of, or through the state. These receipts went into the general treasury of the company.” This case differs essentially from State Tax on Gross Receipts, 15 Wall. 284, and Phila. & Southern Mail S. S. Co. v. Com monwealth, 8 Out. 109, the corporations in those cases being domestic corporations. In the present case the conditions are all reversed. The fund is not here. The corporation is not here. Its principal office is not here, and it has derived no power whatever from this state. If taxable at all, it is taxable simply because some of the passengers, from whom the fund in its treasury at Chicago was derived, were transported over Pennsylvania soil on their way to or from points in other states. This corporation has no franchise from the state of Pennsylvania, and needs none. If its business is transportation it is inter-state transportation, and it cannot be excluded or taxed: Paul v. Virginia, 8 Wall. 168 ; Pensacola Tel. Co. v. W. U. Tel. Co., 6 Otto 1; Indiana v. Pullman Palace Car Co., 16 Fed. Rep. 193. The last cited case was similar to this, and the opinion of Gresham, J., covers the case at bar.</p> <p>The utmost that may be admitted is that the plaintiff in error is sufficient of a transportation company to make it liable to tax on gross receipts for business done solely within the state of Pennsylvania — not “into, through and out of” said state.</p> <p>That it was the legislative intent to tax this company is shown by the express naming in the Act of “ any palace car or sleeping car company,” and this express intent cannot be negatived by a technical construction of the words “ transportation business.” The Act requires the corporations named to make return of gross receipts “ derived from all sources.”</p> <p>The tax in this case is not obnoxious to the Federal Constitution. It is not upon the property or franchise of the corporation, but, we contend, upon the business done within the state, measured in amount by the extent of such business or the degree to which its franchise is exercised in its transaction: State Tax on Railway Gross Receipts, 15 Wall. 294. If it is “ doing business ” within the state, it is sufficiently here, both in person and property, to bring it within the taxing power of the state in respect to the business done within her borders. In the transaction of such business it enjoys the protection of the Commonwealth, and is subject to liability to taxation so long as the tax is not laid directly upon the subjects of commerce, but upon the business, measured by the extent to which the franchise is exercised.</p>

35. This case was, in the court below, an appeal by Pullman’s Palace Car Company from a settlement of account by the Auditor General and State Treasurer charging the said corporation with tax on its capital stock for the years 1870 to 1880 inclusive, under the provisions of the Acts of May 1st, 1868, April 24th, 1874, sec. 4, March 20th, 1877, and June 7th, 1879.

22. This was an appeal by C. F. Rheeling from a decree of said Court dismissing his exceptions to the report of an Auditor, in the matter of distribution of the proceeds of a sheriff’s sale of the personal property of C. S. Hurd under writs of fieri facias.

<p>The U. B. Mutual Aid Society, in pursuance of its chartered 'power, issued to A. a certificate of membership which entitled B., “his wife, her heirs or assigns, upon the death of said A., to $3,000.” The wife died intestate during A.’s lifetime, leaving five children. Afterwards A. died, insolvent. The Society thereupon paid the $3,000 to said five children, who surrendered the original certificate. Subsequently letters ■ of administration were granted on the estate of B., and the adminis- ■ tratar (who was also assignee for benefit of creditors of A.) brought suit against the socieiy to recover the amount of the certificate. The court below directed a verdict for plaintiff, and upon a question reserved, entered judgment for plaintiff for one sixth of the amount of the certificate with interest, holding that as A. survived Ms wife, he or his estate was entitled to share equally with the live children in the proceeds of the policy, and that the payment by the society of the whole amount thereof to said children was no defence to the plaintiff’s claim for such one sixth part thereof.</p> <p>Held, that there was no error in the judgment.</p>

<p>1. Eeither the Act of April 13th, 1846 (P. L. 320), nor the Act of March 17th, 1869 (P. L. 12), authorizes the Pennsylvania Railroad Company, upon the approval and filing of their bond to a lessor, to enter upon land in the possession of the lessee.</p> <p>2. A tenant is an “ owner or party interested,” within the Statutes, entitled to security, before entry under the right of eminent domain can be lawfully made on his leasehold without Ins assent. For injury to his estate by reason of such unlawful entiy, he may recover in trespass'; and the subsequent giving of security by the railroad company, in the mode authorized by the Statute, will not deprive him of this remedy.</p> <p>3. In such an action of trespass by a tenant against a railroad company:</p> <p>Held, that the record of a suit by the lessor against the company for his damages, containing the bond given by the company for the security of the lessor’s damages, was not admissible in evidence to show that the company had the right to appropriate the tenant’s property; but that the record of an action of ejectment by a third party against the lessor for the land leased, and a disclaimer filed by the lessor for part of said land, were admissible as 'affecting the measure of damages suffered by the tenant.</p> <p>4. As to the measure of damages, the plaintiff was properly allowed to prove the value of his leasehold over the rent paid therefor, but was then permitted to say: “II had stayed on there, rather than moved away, it would have paid me $1,000 a year.”</p> <p>Held, that the latter testimony was impertinent matter, in the nature of an estimate of future profits, which should not have been submitted to the jury.</p> <p>5. The plaintiff’s calculation of damages, which was allowed to go out with the jury, contained an item ol “ damages for being deprived of lease for two years.” The company had filed a bond about six months after entering the premises, and the court had ruled that any damage accruing after the filing of said bond must be recovered under it, and not in the action of trespass.</p> <p>Held, that it was error to send out said item with the jury.</p> <p>6. Where the purpose for which certain evidence is offered is not asked for or stated, if the same is competent for any purpose, it is error to reject it, even though it may be incompetent for some other purpose.</p> <p>7. Although a corporation Which enters upon property without right is liable for punitive damages, yet where the jury are satisfied that the entry was made in good faith by the corporation, in the belief that it had the right to do so, the jury should not impose such damages.</p>

<p>Appeals from the Court of Common Pleas of Dauphin county: Of May Term, 1884, Nos. 8 and 9.</p> <p>Appeals by Mary J. Dietrich and Catharine Creamer from a decree of said court, confirming the report of an Auditor appointed to make distribution of a fund in the hands of an assignee for the benefit of creditors arising from the sale of the assignor’s real estate.</p> <p>On September 30th, 1879, one George Winters made an assignment for the benefit of his creditors to Peter K. Boyd. The assignee’s first and partial account was duly filed, an Auditor appointed to make distribution, the latter’s report confirmed and moneys paid in pursuance thereof. November 80th, 1882, the assignee’s final account was filed, and the same was duly confirmed April 26th, 1883. In this account he charged himself with the proceeds of the sale of Winter’s real estate, made in pursuance of an alias order to sell, granted September 7th, 1882.</p> <p>The court appointed LeRoy J. Wolf and F. M. Ott, Esquires, Auditors to distribute the fund arising from the sale of said real estate, before whom the following facts appeared: A judgment was entered in the Court of Common Pleas of Dauphin county, May 4, 1871, by the “State Bank v. George Winters, No. 145, August Term, 1877. Debt, 128,120.72!” On October 12th, 1878, a credit was entered on this judgment by the bank of $10,264, leaving a balance of $>20,000, with interest from October 1st, 1878. This balance was then assigned to sixteen different persons, in consideration of their surrendering up their certificates of deposit, the interest of each being set forth in the assignment. Among others were Mary J. Dietrich, $>1,300, and Catharine Creamer, $340. On October 12th, 1878, the State Bank also entered another judgment against Winters to No. 403, November Terra, 1878, for $10,264.</p> <p>Mrs. Dietrich issued a praecipe for a sci. fa. on May 2d, 1882, to revive the judgment to No. 145, August Term, 1877, to the extent of the sum due her therein. In this praecipe the case was entitled as follows: “ The State Bank, for the use of Mary J. Dietrich v. George Winters and Peter K. Boyd, assignee of George Winters, terre tenant in possession. Debt $1,300.”</p> <p>The same day Mrs. Creamer also issued a praecipe for a sci. fa. to revive said judgment to the extent of her share therein, entitling the case in the same manner, but stating her debt to be $340. In both praecipes the plaintiffs admitted payment of certain sums received by them from the distribution under the assignee’s first account. Writs of scire facias were duly issued and judgments of-revival granted May 27th, 1872, for $1,229.18, and for $323.26, in favor of Mrs. Dietrich and Mrs. Creamer respectively.</p> <p>They accordingly claimed before the Auditors that, having issued their sci. fas. in time and obtained judgments of revivals before the sale of Winters’ real estate, said judgments were liens upon the real estate so sold, and should be paid out of the fund arising from said sale, in preference to other owners of portions of the $20,000 judgment, or to the State Bank on its judgment for $10,264, entered October 12th, 1878, and revived May 9th, 1883, in favor of James I. Chamberlin, assignee of said bank.</p> <p>The bank and Chamberlin, on the other hand, contended that the entire judgment to No. 145, August Term, 1877, had lost its lien, that the attempts to revive portions of it were ineffectual, and therefore that the bank’s judgment for $10,264, being next in order of priority, was entitled to the fund.</p> <p>The Auditors found that no part of the original judgment had been revived by the sci. fas. issued by Mrs. Dietrich and Mrs. Creamer, because neither of said writs correctly recited the said original judgment. They accordingly filed a report awarding the money in their hands to Chamberlin on the bank’s judgment for $10,264. Exceptions filed to this report were dismissed by the court, and a decree entered confirming the same. Whereupon Mary J. Dietrich and Catharine Creamer took these appeals, filing the following assignment of error:</p> <p>The court below erred in overruling the exceptions of the appellants to the Auditors’ report, and in decreeing the fund in dispute, $7,141.38 to the appellee, James I. Chamberlin, assignee of the State Bank.”</p> <p>A scire facias may be issued upon a judgment, as in this case, to enable any party interested, to recover on his share of the larger judgment: Arrison v. Commonwealth, 1 Watts 874. Where a sci. fa. is sued out for the benefit of one having a limited interest in the judgment, it is error to enter judgment thereon for the whole amount of the original judgment: Peterson v. Lothrop, 10 Casey 228. Informalities in a writ of scire facias to revive a judgment, cannot be taken advantage of by a stranger .to the judgment: Dougherty’s Estate, 9 W. & S. 189; Plauer’s Appeal, 5 W. & S. 473; Dickerson’s Appeal, 7 Barr. 257; Thompson’s Appeal, 7 P. F. S. 175. The bank, therefore, had no standing to object. The bank induced the appellants to surrender their certificates of deposit, and in consideration thereof assigned them parts of the 128,120.72 judgment; and not being a party in the writs of sci. fa. issued by the appellants, the bank is estopped from contesting their regularity, and from claiming any part of the fund bound by the assigned judgment.</p> <p>A scire facias sur judgment must follow the original judgment in amount, date and parties, and a failure to recite any one of these correctly is fatal: Richter v. Cummings, 10 P. F. S. 443; Grenell v. Sharp, 4 Wharton 345; Dougherty’s Estate, 9 W. & S. 195; Arrison v. Commonwealth, 1 Watts 375, 880. The sci. fas. and the original judgment in this case vary in parties and amount.</p>

<p>Appeal from the Court of Common Pleas of Dauphin county : Of May Term, 1884, No. 10.</p> <p>This was an appeal from the same decree as that in Dietrich’s Appeal (the preceding case), and was taken by Win. B. Gratz, administrator of Christiana Ferrence and thirteen others, who were the persons to whom the State Bank had assigned parts of the $20,000 remaining due on the Bank's judgment of $28,120.72 against George Winters, No. 145, August Term, 1877, after entering the credit of $10,264 thereon.</p> <p>It appeared that on October 7th, 1882, the day of the sale of Winters’s real estate, but before said sale, the attorneys for Gratz and others filed a paper suggesting a judgment of revival for $16,532.95, under No. 42, August Term, 1882, which was the scire facias issued by Mrs. Dietrich for $1,300 ; and that said judgment of revival was entered. This sum of $16,532.95 was then apportioned among the said assignees of judgment No. 145, August Term, 1877, and before the Auditors, F. M. Ott, and LeRoy J. Wolfe, Esquires, appointed to distribute the proceeds of Winters’s real estate (as set out in Dietrich’s Appeal, supra) these said assignees claimed the fund by virtue of the revival judgment of $16,582.95, on the ground that Dietrich’s sci. fa. to No. 42, August Term, 1882, continued the lien of the entire original judgment.</p> <p>The Auditors disallowed this claim, holding that inasmuch as said sci. fa. to No. 42, August Term, 1882, failed to revive the judgment No. 145, August Term, 1877, or any part thereof, therefore it followed that the claimants in this proceeding, who had done nothing toward reviving their judgment within five years from its date, except what was based on said sci. fa., had no standing. The fund was therefore awarded to the bank on its judgment No. 408, November Term, 1878, which came second in order of priority.</p> <p>Exceptions filed to this report were overruled by the court, McPheusoN, J. delivering the opinion, and a decree entered confirming the same; whereupon Christiana Ferrence’s administrator, and other assignees of the judgment No. 145, August Term, 1877, took this appeal, assigning for error said decree, and the ruling of the court in refusing to hold, “that the effect of the assignment by George Winters, the defendant in appellant’s judgment for benefit of his creditors, was to make his creditors joint owners in equity of the assigned propertjp in proportion to the amount of their respective claims as they stood at the date of the assignment, and in not holding that appellant’s judgment, which was the first lien at the time of the assignment, continued'to be and was the first lien upon the fund, irrespective of any question as to its revival.”</p> <p>The scire facias to revive the original judgment, issued by Mrs. Dietrich to No. 42, August Term, 1882, was necessarily for the benefit of all the equitable plaintiffs in said judgment: Arrison v. Commonwealth, 1 Watts 378. The variances between this sci. fa. and the original judgment were merely formal, and the court should have permitted them to be amended: Willard v. Norris, 2 Rawle 68; Maus v. Maus, 5 Watts 315; Richter v. Cummings, 10 P. F. S. 441; Dougherty’s Estate, 9 W. & S. 189. The rights of the creditors of George Winters as they stood at the date of his assignment were fixed by said instrument and could not be changed except by mutual consent, by anything subsequently occurring: Miller’s Appeal, 11 Casey 482; Morris v. Olwine, 10 Harris 441; Keim’s Appeal, 3 Casey 42; Black’s Appeal, 8 Wr. 508; Patten’s Appeal, 9 Wr. 160; Hess’ Estate, 19 P. F. S. 275.</p> <p>The appellants’ proceeding was an ezideavor to take judgment for $16,582.95 on a scire facias that only claimed a debt of $1,229.18, and on which a judgment for the latter sum had already been taken. That this could not be done is too clear for argument: 1 Blackford 297. The-appellants’ judgment was a first lien on Winters’s property. They knew the bank held a second judgment, and they were bound to know that their own judgment would lose its lien in five years unless properly revived. They failed to revive, and lost their legal advantage by their own negligence. Winters’s deed of assignment did not do away with the necessity for revival: Ebright v. Bank, 1 Watts 398; Dohner’s Appeal, 1 Barr 102; Commonwealth v. Lelar, 1 Harris 23; Fulton’s Estate 1 P. F. S. 206; Kirby v. Cash, 12 Norris 505.</p>

<p>Certiorari to the Court of Quarter Sessions of Dauphin county: Of May Term, 1884, No. 49.</p> <p>A petition of twenty-five qualified voters of the first ward of the borough of Steelton was filed, contesting the .election of Harry H. Snare, as high constable of said borough, on the ground that certain of the ballots east were illegal, in that instead of being printed with the heading “Borough,” as directed by law, they were headed “ Republican Borough Ticket.”</p> <p>The petition averred that the officers of the general election held for said borough on the third Tuesday of February, 1884, liave certified and returned that Harry H. Snare received 246 votes for said office, and Cyrus Zerby received 237 votes; that said election was undue and illegal; that manj' ballots which were illegal, for the reason above stated, were voted and counted against Cyrus Zerby as though they were legal, notwithstanding objection thereto was made to the election officers. The petitioners averred “ that should the illegal votes be taken from the whole number of votes cast in tbe first ward of said borough, then Cyrus Zerby, and not Harry H. Snare, would receive a majority of all the legal votes in the borough of Steelton, and be entitled to the office of high constable of said borough.” The petitioners therefore prayed for an order, &c., &c.</p> <p>Harry H. Snare filed a motion to quash the said petition, on the ground, inter alia, that the petition was defective in failing to aver the number of alleged illegal ballots, or that the same were counted for said Snare, or to aver the total number of all the votes cast.</p> <p>After argument on the motion to quash, the court, in an opinion bv McPhersoN, J., held that while said ballots headed “ Republican Borough Ticket ” were irregular and improper, yet the provision in the Act of March 30th, 1866 (P. L. 92), as to the headings of tickets, was directory merely and not mandatory: citing McCrary on Elections, 126, 194, 400 ; Wheelock’s Case, 1 Norris 297 ; Boileau’s Case, 2 Pars. Eq. Cas. 603 ; Brightly’s Elec. Cas. 268 ; and further, that as the petition did not allege that the actual merits of the election were affected by the irregular ballots cast, and the petition was otherwise defective, the court granted said motion, and entered an order quashing the petition.</p> <p>The petitioners took this certiorari, assigning for error, inter alia, said decree.</p> <p>The Act of 1866 is not the only Act pertinent to this question ; the Act of July 2d, 1839 (P. L. 634), is in pari materia with the Act of 1866, section 71 of which provides: “ All tickets folded and endorsed as aforesaid, and personally delivered by the voter, and none other, shall,” &c., &c. The Act of 1866 provides that voters are “ authorized and required ” to vote by tickets classified and headed as therein directed. These statutory provisions, we contend, are essential and mandatory; hence the ballots in this case which the court below termed “ irregular and improper ” were absolutely illegal and void. If this be so, the averment in the petition that if they had not been counted Zerby would have been elected, -was sufficient to give jurisdiction, and the court erred in quashing the petition. The Act of 1874 merely requires that “ the petition shall concisely set forth the cause of complaint,” &c.: Commonwealth v. Woelper, 3 S. & R. 40; Melvin’s Case, 18 P. F. S. 333 ; Wheelock’s Case, 1 Norris 299 ; Election Cases, 15 P. F. S. 31; Mann v. Cassidy, 1 Brewst. 26,^29 ; In re Contested Election of McDonough, 9 Out. 488.</p>

<p>Writs of error to the Court of Common Pleas of Dauphin county: Of May Term, 1884, Nos. 52 and 53.</p> <p>These cases arose, in the court below, upon appeals by Joseph J. Martin, late Treasurer of the city of Philadelphia, from settlements of account by the Auditor General and State Treasurer, charging him with the sum of $415,523.30, for taxes due the Commonwealth for the years 1880,1881 and 1882, upon certain municipal bonds, issued and sold by the city of Philadelphia. It was claimed that it was his duty, as City Treasurer, to deduct said taxes from interest paid bv him on said bonds, and to pay over the same to the State Treasurer.</p> <p>The accounts embraced taxes upon several classes of bonds issued by said city, viz.:</p> <p>1. Bonds held in the several sinking funds of-the city of Philadelphia.</p> <p>2. Bonds known as “South Street Bridge bonds.”</p> <p>3. Bonds known as “ Wills Hospital bonds.”</p> <p>4. “ Bounty and Defence bonds.”</p> <p>The account charged a tax of four mills on these bonds for the years 1880 and 1881, under the Act of June 7th, 1879, (P. L. 112) the seventeenth section of which provides, inter alia:</p> <p>“.All public loans or stocks whatsoever, except those issued by this Commonwealth or the United States .shall be and are hereby made taxable for state purposes at the rate of four mills on every dollar of the value thereof annually.”</p> <p>And the account charged a like tax of four mills on said bonds for the jmar 1882, under the Act of June 10th, 1881 (P. L.), section 1, of which contains a clause identical with that of the Act of 1879, above quoted.</p> <p>The duty of the City Treasurer to deduct said taxes from interest paid on said bonds was claimed to exist under the Act of April 30th, 1864 (P. L. 218), section 4 of which, after providing that the treasurer of each county and city shall make annual return to the Auditor General of the amount of bonds, &c., outstanding by said county or city on the first day of January in each year, provides, inter alia, as follows:</p> <p>“And hereafter it shall be the duty of the treasurer of every county, city, borough and incorporated district in this Commonwealth to deduct the said state tax on payment of any interest or dividend on debts due by the county, city, borough, or incorporated district, and pay the same over to the State Treasurer within thirty days after the said interest or dividend has fallen due.”</p> <p>The specifications of objection filed to said accounts were, in substance, to the following effect:</p> <p>1. The bonds were exempt from taxation, (a) The bonds held in the sinking funds of the city were not taxable, because although originally issued by the city they had been subsequently purchased by the city, and so stamped and identified as the property of said sinking funds as not to be ’ further negotiable; that said bonds do not represent “money owed by solvent debtors,” nor “money capital in the hands of individual citizens of the state.” and that there was not any interest paid on said bonds in said years, in any legal sense, within the meaning of said Acts of 1864,1879 and 1881.</p> <p>(5) That bv the Act of March 23d, 1870 (P. L. 542), under which the South Street Bridge bonds were issued, it is expressly provided “ that the said loan shall be exempt from all state and municipal taxation.”</p> <p>(e) As to the Wills Hospital bonds, the Act of April 11th, 1848 (P. L. 504), provides that the property held in trust for said hospital “ is and shall be exempt from all State. tax or taxes.”</p> <p>(d) As to the Bounty and Defence bonds, the Act of March 25th, 1864, section 5 (P. L. 90), provides that the same “shall be exempt from taxation.”</p> <p>2. The foregoing bonds being exempt from taxation by the Acts authorizing their issue, any subsequent Act taxing them is unconstitutional.</p> <p>3. The County Commissioners having made return, for the years in question, of all “ bonds, mortgages, money owing by solvent debtors ” and other property liable to and assessed for taxation, and the state revenue commissioners having adopted said returns, and the tax thereby levied having been paid, said bonds, if taxable, are presumed to have been included thereip, and the tax paid.</p> <p>4. Said bonds being taxable (if at all) not on their nominal value but upon their actual value, an assessment of such actual value was essential to the validity of the tax.</p> <p>5. The true title of the Act of June 7th, 1879, as the same appears upon the original manuscript roll, on file in the office of the Secretary of State, is : “ An Act to provide revenue by taxation of corporations associations and limited partnerships.” The title to the Act of June 10th, 1881, is “A supplement” to the Act of 1879, referring to the latter by a wrong title. Said title of the Act of 1879 does not expressly include, but by implication excludes taxation of individuals, and all the bonds on which tax is claimed (other than those in sinking funds) are the property of individual holders, and therefore not taxable under said Acts.</p> <p>The cases were, by agreement under the Act of 1874, tried without a jury, before SlMONTON, P. J., upon a statement of facts agreed on, setting forth the details of said bonds, &c.; and also upon oral testimony which was chiefly directed to explain certain facts in connection with the title of the Act of June 7th, 1879, hereinafter particularly referred to.</p> <p>The opinion of SlMONTON. P. J. was as follows:—</p> <p>This is an appeal bv defendant from the settlement of an account auainst him as Treasurer of the citv of Philadelphia, by the Auditor General and State Treasurer, for state taxes claimed to be due for the tax years 1880,1881 and 1882 on certain bonds theretofore issued and sold by said city. The Commonwealth claims that it was the duty of said treasurer, prescribed bv the several Acts of Assembly hereinafter cited, to assess and retain said tax from the interest paid from time to time upon said bonds, and to pay it over to the State Treasurer for the use of the Commonwealth ; while the defendant contends that the bonds were not and are not taxable under said Acts, or any of them, and that, therefore, it was not his duty to retain any part of said interest, and that no tax is due the state in respect of said bonds. The case was, by agreement, tried by the court without a jury. It does not call for any formal finding of facts. The correctness of the amounts stated in the settlement is not disputed. The questions involved are purely questions of law.</p> <p>There are specifications of objections in the appeal claiming exemption from taxation, by virtue of the several Acts of Assembly cited thereon, for a large portion of the bonds. Specifications identical with these, and as to the same bonds were filed in Commonwealth v. Delos P. Southworth (defendant’s predecessor in office!) No. 11, April Term, 1888, Dauphin County Common Pleas; and the questions of the right to the exemption were argued on the trial and disposed of, so far as this court is concerned, by the opinion filed and judgment rendered in that case, and the result of that decision will be applied in entering judgment in this case also.</p> <p>The questions raised by others of the specifications herein were raised and argued in Commonwealth v. Lehigh Valley Railroad Company, and some of them were decided in the opinion by Judge McPheusON, reported in 39 Leg. Int. 209; others were discussed, but not decided, because the case did not call for their decision.</p> <p>That case was affirmed by the Supreme Court, upon the points decided below, Glauk, J., saying of those undecided: “ Other questions of the greatest magnitude and importance were raised in the presentation of this cause to the court below, but the view we have taken and expressed in this opinion renders it unnecessary that we should dispose of them 13 W. N. C. 469; s. o., 8 Out. 89.</p> <p>These references will enable those interested to follow the whole course of the discussion of these questions — a discussion much complicated by the want of care and comprehension evinced in the tax legislation with which it is concerned.</p> <p>The result in this case depends in a good degree upon the construction to be given to statutes not in question in the Lehigh Valley Railroad Company’s case, and for this reason it becomes necessary to decide some of the questions then waived, as well as to determine the bearing of these statutes upon others there decided.</p> <p>The first of these questions is raised by the Averment of defendant that the true title of the Act of June 7th, 1879, is “An Act to provide revenue by taxation of corporations, associations and limited partnerships,” and that so much of section 17 as relates to the taxation of bonds, mortgages and other property owned by individuals is unconstitutional and void, because its purpose is not clearly expressed in the title, as required by section 3 of Article III of the Constitution of 1874.</p> <p>The title printed in the pamphlet laws is, “ An Act to provide revenue by taxation,” and they contain the usual printed certificate of the Secretary of the Commonwealth that he has “ collated with and corrected by the original rolls on file in this office, the proof sheets of the printed copies of this edition of the laws, &e.” See Act April 4th, 1792 (Smith’s laws, vol. 3, p. 82.)</p> <p>But the original roll was produced upon the trial, by the Deputy Secretary of the Commonwealth, for our inspection and information, and the title there appearing is “ An Act to provide revenue by taxation of corporations, associations and limited partnerships.”</p> <p>The words of this title “of corporations associations and limited partnerships,” are surrounded and enclosed by a heavy pen and ink line, * and we are asked by the Commonwealth to look into the journal of the two houses, and to find from their proceedings, as there recorded, that the words so surrounded and enclosed were stricken out prior to the final passage of the bill; that the line drawn around them indicates this; and, hence, that the true title is that given in the pamphlet laws.</p> <p>Can we do this ? Is the enrolled Act authenticated by the signatures of the Committee to Compare Bills, the presiding officers of the two Houses and the Governor of the Commonwealth, and on file in the office of the Secretary of the Com-^ monwealth, its legal custodian, the ultimate and conclusive ■ proof of what itself contains, or can it be contradicted, explained or amended by the journals?</p> <p>As will appear from an examination of the cases in which this question has been discussed, it has always been considered, and in the nature of the case it is, a question of evidence, and must be determined upon the principles which apply to that branch of the law.</p> <p>One of these principles is that a record is to be tried by itself and imparts absolute verity. “A record or enrolment is a monument of so high a nature, and imparteth in itself such absolute verity, that if it be pleaded that there is no such record, it shall not receive any trial by witness, jury or otherwise, but only by itself3 Black. Com. 331.</p> <p>But an Act of the Legislature, enrolled in the proper office, is’ a record. It is said in the King v. Arundel, Hobai’t 110 (Boston Ed. 248), that an Act of Parliament is “a high record which must be tried by itself, teste meipso."</p> <p>And in Pangborn v. Young, 32 N. J. L. 29. Beasley, C. J., delivering the opinion of the court, says: “From the earliest times, so far as I have been able to ascertain, it has been the invariable course of legislative practice in this state for the speaker of each house to sign the bill as finally engrossed and passed. It is likewise certified by endorsement by the clerk of the house in which it originated.” This we believe describes exactly the practice in Pennsylvania j and at this stage the bill is sent to the Governor for his assent or veto; a step which in former times was not required in New Jersey, but now is. The Chief Justice continues: “ With these attestations of authenticity upon it, it is then filed in the office of the Secretary of State.”.“ There seems therefore to be no doubt whatever that these copies, thus authenticated and filed are to be regarded as enrolled bills, (Acts) corresponding in their general character, and partaking, if not in all, at least in most respects of the nature of parliamentary rolls.”</p> <p>So in Sherman v. Story, 30 Cal. 253, Sawyer, J. says, 258 : “ The enrolled Act, thus authenticated and deposited in the office of the Secretary of State, must be regarded as the record, and as a monument of as high a nature and solemn character as an Act of Parliament enrolled in chancery, or as a record in a court of justice.”</p> <p>On the other hand the journals of the houses are not records. Thus it is said in King v. Arundel, ubi supra: “ Now journals are no records, but remembrances for forms of proceedings to the record; they are not of necessity, neither have they always been.”</p> <p>“ The journal is of good use for the observation of the gen-ovality and materiality of proceedings and deliberations as to the three readings of any bill, the intercourse between the two houses and the like, but when the Act is passed the journal is expired.”.“But if the record of the Act itself carry its death wound in itself, then it is true that the parchment, no nor the great seal, either to the original Act, or to the exemplification of it, will not serve, as in the 4 H. VII., 18, where the Act was by the King, with the consent of the Lords, (omitting the Commons) and was judged therefore void. And be that observes the ease 33 H. VIII., 17, which was the only case relied upon by defendant’s counsel, shall find it so, and upon this rule the doubt to be conceived, soil, upon the parliament roll itself, not upon the journal.”</p> <p>The Constitution of 1874, article IT. on the legislative section 12, requires each house to keep, and from time to time publish a journal; and the same section as well as sections 4 and 5 of article III. on legislation require the entry in the cases stated of the names of members voting for and against any measure upon the journal. There is no other requirement as to the contents of the journal; no mode provided for authenticating it, nor any place of deposit for safe keeping designated, nor is it made evidence by the Constitution or Laws for any purpose. As is said in Pangborn v. Young, ubi supra: “If intended as evidence for any purpose whatever in any course of judicial investigation, can anyone conceive that these registers would have been left in the condition in which by the Constitution we find them? In the nature of things they must be constructed out of loose and hasty memoranda made in the pressure of business and amid distraction of a numerous assembly. There is required not a single guaranty to their accuracy or to their truth; no one need vouch for them, and it is not enjoined that they should be either approved, copied or recorded.” We may add that we have not been able to learn with certainty whether they are ever preserved after being printed, and that it was the printed copies to which we were referred or which could be found.</p> <p>The whole question is most thoroughly and ably discussed in the two cases of Shermen v. Story and Pangborn v. Young, above cited, and in State of Nevada v. Swift, 10 Nev. 170; wherein it is clearly shown that the decided weight of reason as well as of authority is on the side of the doctrine that the court cannot look behind the law itself as enrolled in the proper office and that it is a record which cannot be contradicted. These cases are well worthy of perusal.</p> <p>The cases on this subject are so fully quoted and discussed in the first and last of those above cited that we do not consider it necessary to refer to them here; they are numerous and found in nearly every state in the Union. There are, it is true, some which hold a contrary doctrine, but most of these are influenced by the provisions of the modern constitutions on the subject of legislation, and hold doctrines which are opposed to those in our own recent case of Kilgore v. Magee, 4 Norris 412, and also to those of Speer v. Plank Road Company, 10 Harris 378, declaring that “when a bill has received the sanction of the Senate and House of Representatives, and the Executive’s approval, it is a law ; and the highest evidence of its authenticity is the enrollment in the Secretary’s office.”</p> <p>We may add that we have looked into the printed journals for information and are satisfied that even if they could be received and acted upon they would not enable us to arrive ata satisfactory conclusion. They give no intelligible account of the passage of the Act, and indeed, we think it would be impossible to show from them that it was ever legally passed, in any form.</p> <p>The thing which most clearly appears is that at all the stages of the progress of the bill in question, up to the time when it first passed both houses and was sent to the Governor, it contained ite full title; and it is manifest that if a bill can be passed with a title which does not denote its subject, and after its passage the title can be amended so as for the first time to express its purpose, the constitutional provision is of little value.</p> <p>When this question first arose, it was contended that the Act, as printed in the pamphlet laws, was the best evidence, and could not be contradicted by the original roll. We do not understand that this is now insisted upon, and it certainly cannot be the law, as is abundantly, though incidentally, shown in the cases cited.</p> <p>We have then before us the original Act, with lines drawn around part of the title, as already stated. Can we, looking only at the Act itself, as evidence of its contents, and remembering that the title is a part of the Act, give significance to these lines, and understand them to import that the words within them were stricken out? We think the reasons given by Judge McPheksON, in the Lehigh Valley Company’s case, 39 Leg. Int. 210, are sufficient to show that this cannot be done.</p> <p>Confining ourselves therefore, to the original bill, we find .lines drawn around certain words in the title. Is it possible that we can say of our own motion that because of the lines the words ought not to be there ? They are not even erased; they are simply enclosed, and the marks of themselves have no meaning, for they are not even ordinary marks of parenthesis. We certainly will not say that they indicate a legislative purpose to strike out the words, for tbev give no evidence of snob purpose, and even if they did it would be most dangerous to hold that legislative marks themselves could have that effect. What is to prevent any person having or obtaining access to the original statutes from drawing such lines as these ? Original bills should be wholly free and clean from marks, erasures and interlineations, and we will avoid one danger at least by treating these marks as if they were not there. We can, at all events, lessen the temptation to make them by refusing to give them any effect.</p> <p>And it must not be forgotten that looking only at the enrolled Act, as we are bound to do, we cannot determine when or by whom these lines were drawn upon it.</p> <p>We cannot say that they were there before the bill left the legislature or when it reached the Governor; nor can we know that they were not placed there by some evil disposed person for a sinister purpose.</p> <p>Hence, if we were to permit them to speak for any purpose, we might be giving significance to the unwarranted act of an intermeddler or a forger, and forcing into a solemn Act of the Legislature a meaning which none of those concerned in its enactment ever intended or imagined.</p> <p>It is no doubt for reasons such as these that it has always been held, since the time when punctuation marks were first introduced, that they have no legal place in a statute, and when, inserted by compiler or printer are to be ignored by the courts as an aid to construction. We find, therefore, on inspection of the roll, that the title to the Act is “ An Act to provide revenue by taxation of corporations associations and limited partnerships.”</p> <p>Is section seventeen, therefore, unconstitutional so far as it purports to tax individuals?</p> <p>Defendant contends that the Act violates the Constitution, both negatively and positively; that it does not clearly express in its title that the taxation of individuals is its subject, and that it excludes any inference that such is its purpose by declaring affirmatively that the taxation of corporations, associations and limited partnerships is its subject.</p> <p>Dorsey’s Appeal, 22 P. F. S. 192, is cited in support of this proposition, and, we think, sustains it. There the title to the act was “ An Act relating to the liens of mechanics, material men and laborers upon leasehold estates, &c,” and a section of the Act, which extended the liens to freeholds, was held to be unconstitutional, because freehold estates were not within the title. The court held that the title was restrictive, and that while if “ estates ” simply had been made the sub-jpct of the Act, all binds of estates, freehold as well as leasehold, might have been included, yet, “leasehold estates” being designated, the idea of any intention to legislate as to “freeholds ” was excluded.</p> <p>So, here, the purpose to tax “ corporations, associations and limited partnerships ” being expressed, we think the Act cannot be extended further, and that so far as it purports to •impose a tax upon bonds, mortgages, public loans or other property of individuals, it must be held unconstitutional and void. See, also, Union Passenger Railway’s Appeal, 32 P. F. S. 91; Beckert v. City of Allegheny, 4 Nor. 191, and Ruth’s Appeal, 10 W. N. C. 498.</p> <p>As already stated, it was not necessary to decide this point in the Lehigh Valley Railroad Company’s case, 8 Out. 89, because when it was there found that the tax claimed must be presumed to have been assessed and collected by the local assessors and collectors, the case was at an end.</p> <p>It is claimed, by the defendant that the same presumption arises inothis case, but to this we cannot asse2it for the conclusive reason that, as we shall proceed to show, it was not any part of the duty of the local assessors and collectors to assess and collect the tax on municipal loans, and hence it cannot be presumed that they have done so.</p> <p>The forty-second section of the Act of April 29th, 1844, enacts as follows: “It shall be the duty of the treasurer of each county, incorporated city, district and borough of this Commonwealth, on the payment of any dividend or interest to any holder or agent claiming the same, on any scrip, bond or certificate of indebtedness issued by said incorporated city, district and borough aforesaid, to assess the tax herein made and provided for State purposes upon the nominal value of each and every said evidence of debt; said tax to be deducted by the said treasurer on the payment of any interest or dividend aforesaid, and the same shall be held by him until paid over to the State Treasurer; and the same treasurer shall be subject to the same penalties and liabilities now provided by existing laws in relation to taxes on bank dividends.”</p> <p>This section of the Act of 1844 is not repealed by the Act of June 7th, 1879; and even if section 17, which fixes the rate of four mills, were valid,'the tax would still be collectible in the manner provided by section 42. The only effect of section 17 would be to change the rate from three mills, as fixed by section 34 of the Act of 1844, to four mills. But if section 17 fails because unconstitutional, both the rate of three mills and the mode of assessment and collection prescribed in the Act of 1844 remain in force.</p> <p>Defendant contends, however, that even if this would otherwise be the case, it is not so for the reason that section 42, Act of 1844 was superseded by the Act of April 2d, 1846 (P. L. 486), entitled “An Act to provide for the reduction of the public debt.”</p> <p>We are asked to imply this repeal because, as it is argued, municipal bonds are included in the description “ all public loans and stocks whatever ” which by the Act of 1846 are to be assessed and taxed by the local assessors and county officers, and, therefore, the mode of assessment and taxation provided for them in section 42, Act of 1844, being inconsistent with the latter mode provided, is abrogated and repealed. We do not think the validity of the Act of 1844 can now be questioned.</p> <p>The taxes upon municipal bonds have been collected under it from the date of its passage until now, and its existence has repeatedly been recognized by the courts since the passage' of the Act of 1846.</p> <p>Thus in Maltby v. Reading and Columbia Railroad Company, 2 P. F. S. 148; Commonwealth v. Phoenix Iron Company, decided in the Supreme Court but not reported; and Delaware, Lackawanna and Western Railroad Company v. Commonwealth, 16 P. F. S. 69; the validity of section 3, Act of April 30th, 1864, (P. L. 218) was upheld upon the ground that section 42, Act of 1844, was then in force, and that its provisions were by said section 3 extended to the financial officers of corporations.</p> <p>And its continued existence is recognized by the Supreme Court in the Lehigh Valley Railroad Company case, 8 Out. 89, and the principle upon which the general expressions, which are said by defendant to work a repeal, are to be construed is stated by Clark, J., as follows: “ Thus it will be seen that the forty-second section of the Act of 1844 makes particular provision for the assessment and collection of State taxes on municipal indebtedness, and, therefore, contains within itself abundant machinery for its own enforcement.”</p> <p>“A special method of assessment being thus prescribed, the subjects embraced in it are of course withdrawn from the ordinary methods pursued under that Act, and the regular general assessment could not be presumed to contain what did not legitimately fall within its range.In such case a return of ‘all mortgages, moneys owing by solvent debtors, &c.,’ would be construed to cover such mortgages, &c., only as come within the range of the assessor’s duty.”</p> <p>Rut if the legislature did not consider the general language used in section thirty-four of the Act of 1844, providing tor the assessment and collection of the tax upon ‘-‘all public loans and stocks whatever,” by the local assessors and collectors, inconsistent with the special method provided in section forty-two for the assessment and collection of the tax upon municipal loans, how can we decide that the same general language in the Act of 1846 is any more inconsistent therewith? And especially in view of the fact that the Act of 1846 itself, notwithstanding the general language which is broad enough to cover the whole subject, provides-in section eight the same special mode for assessing and collecting loans, guaranteed by the State, as is provided by section forty-two of Act of 1844 for municipal loans.</p> <p>We therefore think that the whole tenor of these two Acts shows that the special mode of assessment and collection of the tax on municipal loans, provided in section forty-two, Act of 1844, remains in force and unrepealed.</p> <p>■ And as these loans have been taxable, and actually taxed in this special manner ever since the passage of the Act of 1844, we may conclusively presume that they have not been returned for state taxation by their owners, nor assessed or taxed in any other manner, even if they be subject to taxation in the ordinary mode, for county purposes.</p> <p>Hence, we conclude that the taxes claimed in this case for the tax years 1880 and 1881 are to be assessed at the rate and collected in the manner prescribed by the Act of 1844, precisely as if the Act of 1879 had never been passed.</p> <p>And since, as has been decided in the Lehigh Valley Railroad Company’s case, supra, the Act of 1881 does not provide a mode of assessment or collection, but merety changes the rate from three mills to four, the tax for 1882 must be assessed and collected in the same manner, but at the latter rate.</p> <p>In coming to this conclusion, we necessarily overrule the objection of defendant that the Act of 1881 is unconstitutional, because it is entitled a “ Supplement to an Act to provide revenue by taxation,” when this, as we have found, is not the title of the Act to which it was intended to be a supplement. In Allegheny county Home’s Appeal, 27 P. F. S. 77, quoted in State Line and Juniata Railroad Company’s Appeal, Id. 429, it was held that “ if the title fairly gives notice of the subject of the Act so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary.” And in the latter case it is said that “ the true rule is that where the legislation in the supplement is germane to the subject of the original bill, the object of such supplement is sufficiently expressed in the title.”</p> <p>The legislation in this supplement is certainly germane to the subject legislated upon in the original bill, and the title expressed in the supplement would fairly give notice that taxation in general was its subject. Hence, to say the least, there is a doubt which must be resolved in favor of the constitutionality of the Act.</p> <p>But it is further objected by defendant that the assessment of the tax upon the nominal value of municipal bonds, while other like subjects of taxation are to be assessed at their actual value is forbidden by the first section of the ninth article of the Constitution, which requires that “all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.”</p> <p>We do not think there is force enough in this objection to destroy the. validity of the tax. The statute had required the assessment of municipal bonds at their nominal or par value, and the collection of the tax due upon them by the treasurers of the several municipalities by retaining it out of the interest accrued for more than twenty years before the Constitution of 1874 was adopted, and if our construction of the effect of the Acts of 1879 and 1881 is correct, no other mode of assessment and collection has since been provided by the legislature.</p> <p>If this be so, the case is brought directly within the scope of the principles clearly and forcibly enunciated by Chief Justice Ag-NEW, in Lehigh Iron Company v. Lower Macungie Township, 31 P. F. S. 482, which led to the conclusion as stated by him, “ that section 1 of article IX. is not immediately operative, but was intended by the convention to be mandatory upon the legislature to enact laws framed upon its special intent, and to repeal all laws inconsistent therewith, leaving the legislature in the exercise of a sound and wise discretion to time the repeal after proper general laws have been passed. Any other interpretation would lead to most ruinous results.”</p> <p>And as no intention to repeal the Act of 1844 has been expressed by the legislature since the adoption of the Constitution of 1874, we cannot infer it from the simple fact that the tax rate is changed by the Act of 1881 from three mills on the dollar to four.</p> <p>Moreover, in view of the fact that municipal bonds have for so many years been assessed and taxed in this special manner, it might not be going too far to hold that they form a “ class of subjects ” within the fair intent of this article and section, and that all the Constitution requires is that the tax upon them be uniform. But, be this as it may, we think the objection of defendant for want of uniformity cannot be sustained.</p> <p>We do not deem it needful to lengthen this opinion by discussing in detail the numerous other specifications of objections filed by defendant. We have not overlooked any of them, and they must be considered overruled, in so far as they are inconsistent with our conclusions of law upon the whole case, which are as follows :</p> <p>First. Defendant is not liable for any tax in respect of the bonds held in the several sinking funds of said city of Philadelphia.</p> <p>Second. Defendant is liable for tax in respect of the bounty and defence bonds issued under authority of the Act of March 23d, 1864, because of the proviso in section 7 limiting the exemption to ten years: See 11, April Term, 1883, Dauphin county C. P.</p> <p>Third. Defendant is not liable for any tax in respect of the bonds known as South street bridge bonds.</p> <p>Fourth. Defendant is not liable for any tax in respect of the bonds owned by the trustees of the Wills Hospital for the Indigent Lame and Blind.</p> <p>Fifth. The title of the Act of June 7th, 1879, is “An Act to provide revenue by taxation of corporations associations and limited partnerships.”</p> <p>Sixth. So much of the 17th section of said Act as imposes a tax upon individuals is unconstitutional and void.</p> <p>Seventh. Defendant is liable for the tax during the tax years 1880 and 1881, upon so many of the bonds taxed in the settlement in this ease as are not hereinabove held to be exempt, at the rate of three mills upon every dollar of the nominal or par value of said bonds.</p> <p>Eighth. Defendant is liable for the tax during the tax year 1882 upon so many of said bonds as are not exempt as above stated, at the rate of four mills upon every dollar of the nominal or par value of said bonds.</p> <p>Ninth. Defendant is liable to interest upon the amount due in each of said years, from three months after the date of the settlements of the accounts respectively at the rate of six per centum per annum.</p> <p>Tenth. The amount due to the Commonwealth from defendant is as follows:</p> <p>Tax for 1880 and 1881,.$51,149 10</p> <p>Interest from February 23d, 1883, to May 20th, 1884. 3,810 10</p> <p>Tax for 1882,. 32,114 40</p> <p>Interest from October 26th, 1883, to May 20th, 1884. 1,106 99 Attorney-General’s commission, 5 per cent, on 183,263.50,. 4,163 17</p> <p>Total, ........ $92,343 76</p> <p>For which amount let judgment be entered if exceptions be not filed according to law.</p> <p>Botb parties filed exceptions to the decision of the court.</p> <p>The Commonwealth excepted to the third, fifth, sixth and seventh conclusions of law.</p> <p>The defendant filed, inter alia, the following exceptions :</p> <p>2. The court erred in not finding as a fact that for the year 1880 the commissioners of every county in the Commonwealth, including Philadelphia, returned to the State Board of Revenue Commissioners, under oath, as required by law, a tabular statement showing by wards, boroughs and townships, the amount at which all the personal property and other mutters and things taxable by the laws of this Commonwealth were valued and assessed, the said return including in each instance the “value of all mortgages, money owing by solvent debtors, whether by promissory note, penal or single bill, bond or judgment, also all articles of agreement and accounts bearing interest, owned or possessed by any person or persons whatsoever (except notes or bills for work or labor done, and all obligations given to banks for money loaned and bank notes), and all public loans or stock whatsoever, except those issued by this state or the United States, and all moneys loaned or invested on interest in any other state, and all other moneyed capital in the hands of individual citizens of the state.”</p> <p>8. The court erred in not finding as a fact that the revenue commissioners adopted the returns made to them by tlie commissioners of tlie several counties, including Philadelphia, and oh the 20th day of October, 1880, the duplicate record of the valuation of the several counties in the Commonwealth of Pennsylvania, including the “value of all mortgages, money owing by solvent debtors, whether by promissory note, penal or single bill, bond or judgment, also all articles of agreement and accounts bearing interest, owned or possessed by any person or persons whatsoever (except notes or bills for work or labor done, and all obligations given to banks for money loaned and bank notes), and all public loans or stocks whatsoever, except those issued by this state or the United States, and all moneys loaned or invested on interest in any other state, and all other moneyed capital in the hands of individual citizens of the state; ” and transmitted a record of such valuation to each county, the said valuation remaining unchanged for the years 1880, 1881, and 1882.</p> <p>4. Tlie court erred in not finding as a fact that the tax assessed upon said valuation and record so made by the revenue commissioners for the years 1880,1881 and 1882 has been paid in full to the Commonwealth.</p> <p>5. The court erred in not finding as a conclusion of law, based upon the facts referred to in the foregoing exceptions, that the said assessment and taxation includes, or must be presumed to include, the loans of the city of Philadelphia, and that the Commonwealth is not entitled to recover a second time a tax which it has already once collected.</p> <p>7. The court erred in overruling the twelfth specification contained in defendant’s appeal, as follows :</p> <p>“ Twelfth. If the bonds upon which tax is now claimed were not included in the assessment and taxation mentioned in the preceding specification, then the said bonds have not been, neither the city of Philadelphia nor the treasurer thereof could lawfully have deducted any sum whatever when paying interest upon said bonds. And neither the said city nor the treasurer thereof can now be held responsible for failure to collect tax upon property which had not been lawfully assessed.”</p> <p>8. The court erred in overruling the thirteenth specification contained in defendant’s appeal, as follows:</p> <p>“Thirteenth. The Act of June 10th, 1881, makes the tax chargeable, if at all, upon the actual and not upon the nominal value of the bonds. The bonds of the city of Philadelphia upon which the tax in dispute is charged, bear different rates of interest and differ in market and in actual value. Neither the city of Philadelphia nor the treasurer thereof was authorized by law to make any valuation or assessment by any properly constituted authority.”</p> <p>9. The court erred in overruling the fourteenth specification contained in the defendant’s appeal, as follows:</p> <p>“Fourteenth. If any Act of Assembly required that the city of Philadelphia or the treasurer thereof should, when paying interest to holders of bonds of the citjq retain from them a so-called tax upon bonds which had not been assessed by lawful authority, or makes the said city or the treasurer thereof liable unto the Commonwealth for failure to collect the so-called tax, then the said Act is unconstitutional and void, because in conflict with Article V. of the amendments to the Constitution of the United States, which provides that “ no person shall be .... . deprived of life, liberty nor property, without due process of law;” and also because in conflict with Article XIV. of the amendments to the Constitution of the United States.</p> <p>10. The court erred in overruling the fifteenth specification contained in defendant’s appeal, as follows:</p> <p>“Fifteenth. The said Act of Assembly is void, also, because in conflict with Section 9 of Article I. of the Constitution of lJennsyl vania, which provides that no person shall be ‘ deprived of his fife, liberty or property, unless by the judgment of his peers or tlie law of the land.' ”</p> <p>11. Tbe court erred in overruling the sixteenth specification contained in defendant’s appeal, as follows :</p> <p>“ Sixteenth. The said Act of Assembly is void, also, because in conflict with Section 10 of Article I. of the Constitution of Pennsylvania, which provides that private property shall not be taken for public use without- authority of law.”</p> <p>12. The court erred in overruling the seventeenth specification contained in defendant’s appeal, as follows:</p> <p>“Seventeenth. The Act of June 10th, 1881, so far as it relates to the taxation of the bonds of the city of Philadelphia, or requires the said city or the treasurer thereof to deduct any tax when paying interest thereon, is incomplete, inoperative, unconstitutional and void, the said Act failing to provide any mode for the assessment of said bonds or for ascertaining their value or the amount of tax to be deducted from the interest paid.”</p> <p>13. The court erred in overruling the eighteenth specification contained in defendant’s appeal, as follows:</p> <p>“Eighteenth. If the Act of June 10th, 1881, does not require an assessment of the bonds, but imposes the tax upon the nominal, regardless of the real value, then the said Act is in conflict with Section 1 of Article IX of the Constitution of Pennsylvania, which requires that ‘all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority of levjdng the same.’ ”</p> <p>14. The court erred in overruling the nineteenth specification contained in defendant’s appeal, as follows:</p> <p>“Nineteenth. If any Act of Assembly requires that cities or the officers of cities shall assess a tax upon bonds or other evidences of indebtedness at their nominal value, or makes any discrimination between the assessment and taxation of bonds issued by cities and bonds issued by individuals or private corporations, then the said Act is void, because in conflict with Section 1 of Article IX. of the Constitution of Pennsylvania, which requires that ‘ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.’ ”</p> <p>15. The court erred in overruling the twentieth specification contained in defendant's appeal, as follows:</p> <p>“Twentieth.' The title of the Act of June 7th, 1879, is ‘An Act to provide revenue by taxation of corporations, associations and limited partnerships.’ In the title of the supplementary Act of June 10th, 1881, the original Act of 1879 is referred, to by a wrong title, and no new purpose or subjects of taxation are expressed, tío much of the Act of June 10th, 1881, as relates to the taxation of bonds, mortgages, and other personal property in the hands of individuals, is unconstitutional and void, the purpose thereof not being clearly expressed in the .title as required by Section 3, Article III. of the Constitution of Pennsylvania.”</p> <p>16. The court erred in its second conclusion of law, as follows:</p> <p>“ Second. Defendant is liable for tax in respect of the bounty and defence bonds issued under the authority of the Act of March 25th, 1864, because of the proviso in section 7, limiting the exemption to ten years. See 11, April Term, 1883, Dauphin C. P.”</p> <p>17. The court erred in” its seventh conclusion of law, as follows:</p> <p>“Seventh. Defendant is liable for the tax during the tax years 1880 and 1881, upon so many of the bonds taxed in the settlement in this case as are not hereinabove held to be exempt, at the rate of three mills upon every dollar of the nominal or par value of said bonds.”</p> <p>The court entered decrees overruling the exceptions on both sides. SiMONTON, P. J., filed the following opinion in the case of Commonwealth v. Martin:</p> <p>“ The evidence offered to prove the matter stated in the second, third and fourth exceptions, while it proved that the presumption of law was that the officers and boards therein mentioned did their duty and made return of all the mortgages, &c., which it was their duty to return, and collected all the moneys which it was their duty to collect, did not prove that they valued, assessed, returned or accepted a return of the bonds in question in this case, or collected the tax on them, for the reason that it was not their duty so to do; hence the matters alleged are irrelevant in this case, and were not found as facts, because irrelevant.</p> <p>“ The other exceptions call for no special remarks.</p> <p>“All the exceptions of the Commonwealth and of defendant are overruled, and judgment is directed to be entered in accordance with the opinion heretofore filed.”</p> <p>Judgment having been entered accordingly, both parties took writs of error, assigning for error, respectively, the overruling of their respective exceptions as above, and the judgment.</p> <p>The court below held that the South Street Bridge bonds were exempt under the Act of March 23d, 1870, and that said Act was not repealed by the Act of April 9th, 1873, because so to construe the latter Act would be to impair the obligation of a contract with the state. Bnt we submit that the exemption granted by the Act of 1870 was a mere privilege without consideration ; a “gratuity spontaneously made, which might be kept, changed or recalled at pleasure:” Tucker v. Ferguson, 22 Wall 527; Cooley on Con. Lim. *883, *280 and *281; Christ Church v. Philadelphia, 24 Howard 300; East Saginaw Salt Co. v. East Saginaw, 13 Wall 373; People v. Roper, 35 N. Y. 629; Johnson v. Crow, 6 Norris 184; Borough of McKeesport v. Owens, 6 W. N. C. 492; Welch v. Cook, 7 Otto 541.As to the title of the Act of June 7th, 1879. The court should have rejected those words of the title of the original manuscript roll which were enclosed within the pen and ink lines. The inspection of the original roll raised a doubt as to the correct title, which doubt was solved by evidence of the proceedings of the House of Representatives and oral testimony showing that those lines indicated an amendment of the original title, striking out those words. The Secretary of the Commonwealth officially certified and published in the Pamphlet Laws the title without the disputed words. The court erred in holding that they were wrongly rejected, and by retaining them, rendered invalid the seventeenth section of the Act imposing a tax on individuals. If, however, there has been error in the ruling upon this point, the seventeenth section will stand as a legitimate part of the Act of 1879, and in that event the rate of taxation will be four instead of three mills for the years 1880 and 1881.</p> <p>The enrolled Act authenticated by the signatures of the committee to compare bills, the presiding officers of the two houses, and the Governor of the Commonwealth, and on file in the office of the Secretary of the Commonwealth, its legal custodian, is the ultimate and conclusive proof of what itself contains, and cannot be contradicted, explained or amended by the journals, or by any extrinsic proof whatever: Speer v. Plank Road Co., 10 Harris 378; Bank of Pennsylvania v. Commonwealth, 7 Harris 144; Kilgore v. Magee, 4 Norris 401-412; In re Welman, 20 Vt. 658 ; Commonwealth v. Lehigh Valley R. R. Co., 39 Leg. Int. 210.</p> <p>[Elaborate and lengthy arguments w'ere presented on both sines.]</p>

<p>A judgment was recovered against A., B. and C. on a joint and several note signed by them. At A.’s request, and without the knowledge of B. and C., D. and E. entered recognizance for stay of execution, on which recognizance the plaintiffs subsequently recovered judgment against said D. and E. Afterwards the plaintiffs collected the debt from B. and 0. and assigned both judgments to them. B. and C. averring that they were sureties mereiy on the original note, and that by the interposition of the bail for stay of execution, without their knowledge, they had been compelled to pay A.’s debt, sought to revive and enforce said judgment against D. and E.:</p> <p>Held, that the liability of D. and E. on the recognizance had been discharged by the payment of the original judgment by B. and C , and that the latter were not entitled to recover.</p>

<p>1. To entitle the public to a right of way by prescription over unenclosed , woodland, it must be affirmatively shown that substantially the same line of travel was continuously used by the public for twenty-one years prior to the Act of April 2oth, 185U (Purd. Dig'. 1468), which Act ■ provides that thereafter no such right of way through unenclosed woodland shall be acquired by mere user. If the way once used has been abandoned and a different route selected, or if the line of travel has shifted from one location to another and substantially different one, ' there is no such continuous user as will justify the presumption of a grant.</p> <p>•2.. A. was the owner of a strip of unenclosed woodland, through which the public in travelling from one highway to another had been accustomed to cross by five different roads. The distances between tracks Nos. 1 and 2, 2 and 3, 3 and 4, and 4 and 5 were 65, 57, 33, and about 4 feet respectively. The public had acquired by prescription a right of way in Nos. 1 and 2, but as to the length of time for which the other roads were used aud as to the continuity of such use, and as to whether or not these tracks did not constitute substantially one single road, the •evidence was conflicting. A. in 1883 built a fence across his tract of land, tiras crossing and obstructing all five roads, which fence B. in passing along Road No. 4 tore down. In an action of trespass guare clausum fregit 'by A. against B., the court charged that if the jury believed that the public had not acquired a right of way in Road No. 4. but had acquired such right in another road in the vicinity, which A. had closed up, B. would not be liable; that if B. with A.’s consent had substituted Roads Nos. 3, 4, and ¡5 for Nos. 1 and 2 as a thoroughfare, while A. would have the right to obstruct Roads Nos. 8, 4, and 5, he could not do so without leaving open Nos. 1 and 2, and that if he so constructed his fence as to close all the five roads, B. would have the right to remove the fence at No. 4, even if the public had no right of way therein:</p> <p>Held, to be error. That if B. removed A.’s fence at any point in which the public had no right of way, he was a trespasser and liable as such; that while the maintenance of a nuisance by A. would justify its abatement by B., it would not justify the commission by B. of' an independent trespass.</p>

14. This was a certiorari sur appeal taken by the Cumberland Yalley Railroad Company to the action of the said court in dismissing the said company’s exceptions to the report of viewers, appointed under the Act of February 19th, 1849, § 11 (Purd. Dig. 1219), on the petition of Jere Rlioadarmer et al. to assess damages for the obstruction by said railroad of a street in front of property belonging to the petitioners.

<p>1. While it is true that a conveyance of land hy a parent to a child in the form of a gift is, prima facie, an advancement, yet no such presumption arises when the transaction assumes the form of conveyance for full value.</p> <p>2. A. conveyed certain tracts of land to Ms sons B. and C. by deeds of bargain and sale, each of which expressed a consideration equal to the full value of the land, the payment of which was recited in the deeds and acknowledged in the appended receipts in the usual form.</p> <p>Held, Upon the distribution of A.’s estate, that the court in each case •would assume the transaction to bo a sale by the father to Ms son for a valuable consideration paid; and that the Durden of proving that the conveyances were advancements was upon those who alleged it. The evidence introduced for this purpose, held insufficient.</p> <p>3. Tlie mere ex parte declarations of the father, in such case, made in the absence of his sons, and not communicated nor agreed to by them, were held incompetent to affect their interests.</p> <p>4. Storey’s Appeal, 2 Norris 95, and Boyd’s Appeal, 2 Norris 97 — distinguished from the present case.</p> <p>5. It was claimed in regard to two of the deeds that they were never delivered, and that under the Statute of Frauds they were void as evidence of a sale of the lands therein mentioned; but they were nevertheless offered in evidence to show advancements to the grantees.</p> <p>Held, that if the deeds had never been delivered they were worthless for every purpose, and were therefore no proof of advancements.</p>

<p>Ebbob to the Court of Common Pleas of Westmoreland county: Of October Term, 1884, No. 13.</p> <p>Ejectment, by W. J. Ross and Mary C.. bis wife, in her right, against Samuel T. Evans, and Hiram Shearer, to recover possessor of an undivided seventh part of a tract of one hundred and seventy-five acres of land in Allegheny township.</p> <p>At the trial, before Hunter., P. J., it was admitted that David Evans in his lifetime owned the land in dispute, and that he died intestate leaving a widow, Ellen Evans, still living, and eight children, one of whom, Mary C., the wife of W. J. Ross, was the plaintiff. Proceedings in partition were instituted in the Orphans’ Court of Westmoreland county in 1875, under which the land was appraised in the usual manner, and the premises in controversy were awarded to W. J. Ross in right of his wife, Mary C. Ross. In pursuance of the decree of the court Ross entered into recognizance to.pay the widow, Ellen Evans, the interest during life of one third of the valuation, and to pay the principal at her death to the heirs of David Evans. The decree of the court recited the death of Lazarus, a son of David Evans, since his father’s decease, leaving a wife Mary, but no issue, and directed Ross to enter into recognizance to pay the interest of one half of Lazarus’ share to Ellen Evans during her life, and to pay the interest of the other half to Mary, the widow of Lazarus, during her life, and at their respective deaths to pay said share to the heirs of David Evans, deceased. Ross complied with this order of the court, and gave recognizances as directed, with Hugh Ross and Hiram Shearer as sureties. Default was made 'by Ross in his payments to the widow, who brought an action of scire facias upon his recognizance, and obtained judgment. The damages were assessed for the whole amount of the recognizance, $1,529.66 plus $91.51, the amount of the interest then due her, making the total amount $1,629.66. Upon this judgment execution for $91.51 was issued, and the 175 acres taken by Ross in right of his wife were sold by the sheriff to Hiram Shearer for $1,500. Shearer, as surety for Ross, paid the recognizances given by him, and continued the annual payments of interest to the widow. This suit was then brought by Ross and wife against Shearer and his tenant Evans.</p> <p>The court reserved the point presented by the defendants, “that the plaintiff is not entitled to recover in this case any part of the land in dispute,” and directed a verdict for the plaintiff for one seventh part of the land described in the writ.</p> <p>Verdict for the plaintiff for the undivided one seventh of the premises with 6| cents damages and costs. The court subsequently entered judgment for tbe plaintiff on tbe verdict, Hunter, P. J., filing an opinion, as follows:</p> <p>“ I am unable to find any authorities since tbe Act of 1882, justifying a sci. fa. for arrearages of the widow’s annuity secured by recognizance in the Orphans’ Court. The Act of 1832 provides that the same maybe recoverable by distress or otherwise, as rents are recoverable,.and when a statute prescribes a remedy it should be followed. It is true that the usual mode of enforcing recognizances is by writ of sci. fa. issued out of the Court of Common Pleas, and this remedy has for many years been the one pursued by heirs seeking to recover money due them upon proceedings in partition in the Orphans’ Court. But can this remedy be adopted by the widow whose dower, in the nature of an annuity, is thus secured, she having a lien clothed with authority to collect yearly, as a landlord has to collect his rents ? In Stewart v. Martin, 2 Watts 200, that a sci. fa. would lie, was not questioned, but in that case the recognizance was given in 1811, long before tbe Act under which tbe widow here has proceeded. I am inclined to the opinion, therefore, that the remedy of tbe widow was that prescribed by tbe Act. But be this as it may, the judgment was taken for the whole amount of recognizance, principal as well as interest. The judgment was liquidated at $1,029.66, and this sum entered into the list of liens which secured condemnation of the land, and if defendant be right, the sale based upon such condemnation, swept away, so far as the land is concerned, the entire patrimony of the plaintiff. It is true that execution was only taken for the interest then due the widow, namely the sum of $91.51. But this was part of the judgment, and it was on this fi. fa. the land was sold. In Stewart v. Martin, supra, the court would not suffer a verdict or judgment for a greater sum than the annuity due the widoiv. There is a very grave doubt, therefore, if the writ upon which tbe sheriff sold the land, was based upon such a judgment as would sustain the sale.</p> <p>“ Taking up the second proposition in plaintiff’s points, that although the sheriff’s sale may have been valid, it did not pass the plaintiffs interest in the land, nor divest her of her title as one of the heirs of David Evans : The land was decreed to William J. Ross in right of his wife, the present plaintiff, she, so far as the record informs us, not being present or taking any part in the proceedings in partition. Was there then such title in the husband as would pass the wife’s interest in the land by a sheriff's sale upon a judgment obtained against him ? It is well settled that when a husband takes land in proceedings in partition in right of his wife, he takes it as if bv purchase and in fee simple in the purparts of all except his wife’s portion of it, in which he holds a life estate onlv: Sn»-vily v. Wanner, 8 Barr 396; Otto’s Estate, 2 P. F. S. 434; McCullough v. Wallace, 8 S. &. R. 181; Kean v. Ridgway, 16 S. & R. 60. Nor is the recognizance of the husband, in such case, a lien on his wife’s interest or estate: Kean v. Ridgway, supra; Good v. Good, 7 Watts 195.</p> <p>“ We might multiply cases to sustain this rule, but it is not necessary. The sheriff’s sale, therefore, did not divest the plaintiff of her estate in the land (the land having been sold on a judgment obtained against the husband, as we have seen), and judgment must be entered on the verdict. The defendants’ point has been already answered, but we now finally answer it in the negative.</p> <p>“And now February 4th, 1882, judgment on the verdict on payment of jury fee.”</p> <p>The defendants thereupon took this writ, assigning for error the direction of the court to the jury to find a verdict for the plaintiff for one seventh of the premises ; the refusal to charge as requested by defendants, and the subsequent entry of judgment upon the verdict, in the foregoing opinion.</p>

36. Ejectment, by Edward O. McHenry against Mary S. Stock-well, to recover a tract of land in Forest countjq containing 1096^- acres, being warrant No. 4186. The defendant filed a disclaimer of title as to the undivided one half of said premises, and as to the other undivided one half pleaded not guilty. On the trial, before BrowN, P. J., the court directed a verdict for the plaintiff, subject to a question of law reserved.

<p>1. A sheriff’s sale on a purchase money judgment, the lien of which is continuous and contemporaneous with the conveyance of the land, vests a good title in the sheriff’s vendee, clear of all equitable interests in the land subordinate to the legal title bound by the lien of the judgment.</p> <p>2. A. contracted by articles of sale to sell land to B. who conveyed his equitable title to C. to whom A. made title, taking as security for the residue of the purchase money C.’s judgment bond, which was entered up the same day. B. prior to his conveyance to C. had entered into articles of agreement with D. to sell Mm a portion of the same land, and D.’s title by mesne conveyances became vested in E. Execution was issued on the judgment entered against C. and the property was sold thereon by the sheriff to F., who brought ejectment against E. who was in possession. There was also evidence that B.’s sale to C. was made with the acquiescence of A. 'and with notice to D.</p> <p>Held, that the court should have charged the jury, as requested by the plaintiff, that, if they found Hie facts as above stated, Hie sheriff’s sale vested in the sheriff’s vendee the legal title to the premises and divested the subordinate equitable title of D.</p> <p>3. The facts being as above stated the court charged the jury that the action of ejectment was brought to enforce the contract for the sale of the land made between A. and B. and instructed the jury to find a verdict for the plaintiff, to be released upon Ms payment of the amount due on the contract between B. and D.</p> <p>Held, to be error, as the contract between A. and B. was specifically performed by the conveyance by A. to C. with the consent and by the procurement of B.</p>

<p>Error to the Court of Common Pleas of Clarion county: Of October Term, 1884, No. 48.</p> <p>Judgment was entered in the court below on October 1st, 1878, in the name of J. W. Guthrie, for use of The First National Bank of Clarion against John C. Reid, upon a judgment note dated June 20th, 1878, for $3,050, payable ninety days after date, with 5 per cent, attorney’s fees for collection, thus making the damages assessed on the note amount to $3,202.50. On January 7th, 1881, the judgment was satisfied and the following receipt entered oR the docket:—</p> <p>“ Received January 7th, 1881, from the defendant, $3,633.94, in full of debt, interest and costs, money realized on Ralph Bagley note. G. W. ARNOLD, Cashier.”</p> <p>On February 3d, 1881, upon the defendant’s application, a rule was granted to show cause why this entry of satisfaction should not be stricken off and the judgment opened, on the ground that the note represented the last renewal of a series of notes which Reid had given to Guthrie for his accommodation, and which had been discounted by the plaintiff at a usurious rate of interest, and that the attorney’s commission charged was excessive. The court made the following order on the hearing of the rule :</p> <p>“ It is ordered, that the rule in this case be made absolute, and that the judgment be opened, for the purpose of enabling the defendant to defend against the payment of interest included in the note on which this judgment was entered. Also to reduce the attorney’s commission to a reasonable allowance for the professional services rendered; and an issue is awarded to ascertain the amount due the plaintiff on this judgment January 7th, 1881, and the amount of over-payment (if any) applied to the satisfaction of the same. It is further ordered, that in said issue the note on which judgment was entered shall stand as a narr., and shall be evidence prima facie of the plaintiff’s claim in chief, and that the defendant may defend, as hereinbefore indicated, on the plea of payment with leave,” &e.</p> <p>On the trial, before Knox, P. J., it was shown on behalf of the defendant that the first of the series of defendant’s notes was discounted by the bank for Guthrie on April 5th, 1877. It was for $3,000, and payable four months after its date, April 5ib, 1877. The cashier of tbe plaintiff bank was asked bow mucli money was paid to Guthrie on the note. Objected to (1) for the reason that it is irrelevant in that no contract or stipulation made by Guthrie, the person from whom the bank bought the note, affords any defence to Reid, the maker, who was no party to the contract or stipulation, and (2) that the order opening the judgment does not involve an inquiry into the consideration of any note except the one now in dispute, dated June 20th, 1878. Objection overruled. Exception (first assignment of error).</p> <p>The witness then stated that he paid Guthrie, when the note was discounted, §2,900; and further testified as to the various renewals of the loan down to the note in suit, and the several discounts paid at each renewal.</p> <p>Reid, the defendant, testified that the notes in question were accommodation notes, and that no value had been paid him for them. On September 30th, 1878, he being financially embarrassed, made a general assignment for the benefit of his creditors to B. J. Reid, and on January 2d, 1880, both the assignor and assignee sold a piece of the assigned' real estate to Ralph Ragley for §20,000, taking four notes for §5,000 each. One of these the assignee and assignor assigned on January 31st, 1880, to the bank, “ as collateral to the claims now held by said bank against John C. Reid.” This note was paid at maturity, January 2d, 1881, and on January 3d, 1881, B. J. Reid gave the following notice to G. W. Arnold, cashier of the bank:</p> <p>“Clariok, Pa., January 3d, 1881.</p> <p>“ G. W. ARNOLD, Cashier First National Bank of Clarion :</p> <p>“Dear Sir — The five thousand dollar Bagley note assigned to the bank as collateral for claim you hold against J. C. Reid has been paid. You are hereby notified not to make any application of the proceeds to judgments Nos. 254, 255, and 256, of November Term, .1878, until the correct amounts due on said judgments can be liquidated, by throwing out or reducing the attorneys’ commission, and making proper application of the principal of judgment No. 256, of the amounts retained as discounts or charge, and paid for renewals, John C. Reid having been only surety for James W. Guthrie in tbe loan covered by said judgment. Yours respectfully,</p> <p>“R. J. Reid,</p> <p>“Assignee of John C. Reid, for the benefit of creditors.”</p> <p>The bank at tins time beld, including tbe judgment in dispute, four claims against John C. Reid.</p> <p>Testimony was given on both sides as to the value of the attorney’s services.</p> <p>The plaintiff requested the court to charge as follows:</p> <p>1. That when the defendant put the collateral into the hands of the. equitable plaintiff, to pay the judgment, so far as the proceeds of that collateral was concerned, it was out of his power to set up usury to defeat the application of the collateral, as it was agreed it should be at the time of its receipt. Refused.</p> <p>2. That the jury cannot, in this action, allow the defendant for any interest paid by J. W. Guthrie. Refused.</p> <p>3. That the jury cannot, in this action, allow the defendant the benefit of any stipulation or agreement made by J. W. Guthrie with the bank to which the defendant was not a party. Refused.</p> <p>4. That if John C. Reid, the defendant, loaned his note to J. W. Guthrie, and J.. W. Guthrie sold it to the use of plaintiff, at a greater discount than six per cent., and John C. Reid made no contract or stipulation, nor paid any interest to- the bank on the note, he cannot set up any transaction the bank had with Guthrie as a defence. Refused.</p> <p>6. That if, when the plaintiff had instituted proceedings to enforce collection against John C. Reid, he and his assignee obtained a stay for one year on this judgment, and on other claims the bank had against him, in consideration whereof he transferred the Bagley note as collateral security for the payment of this judgment and the other claims, the plaintiff had a right to apply the amount of the collateral to the payment of this judgment, as it was then agreed for and stipulated by the parties; and if he so applied the money it would be a. rightful application, and would be a payment of this judgment, and he cannot now defend for alleged usury thereon. Refused (3d, 4th, 5th, 6th and 7th assignments of error).</p> <p>The court affirmed the following points submitted by the defendant:</p> <p>1. If the jury believe from the evidence, that at the time of discounting the first note of $3,000.00, interest or discount was charged, or stipulated for, at a greater rate than six per cent, per annum, and. that said interest or discount was not actually |)aid by the borrower, but was included in the note, to be paid with the note at maturity, such contract or agreement for usurious interest destroyed the interest-bearing quality of the note — and the bank could not lawfully collect any interest whatsoever on said note, or on any subsequent note given in renewal of the original loan.</p> <p>2. If the jury believe from the evidence, that the note on which judgment in this ease was entered was one of a line of notes given in renewal of said first note, and that interest or discount at a greater rate than six per cent, per annum was included in the note, no interest whatever could be lawfully collected by the bank on said renewal note, and nothing could be recovered thereon except the original loan of 82,900.00 if that was the actual amount of the money loaned by the bank in the original transaction.</p> <p>8. If the jury find the facts to be as stated in the first two points, the jury (in ascertaining how much was due in this case by John C. Reid to the bank on the 7th of January, 1881.) should allow the plaintiff bank for the amount of the original loan, without interest, and such compensation for professional services in the matter of the collection of the claim, as the jury may find to be reasonable under all the evidence, and the docket costs. (8th, 9th and 10th assignments of error.)</p> <p>The court left it to the jury to determine from the evidence bow much the attorney’s services were reasonably worth.</p> <p>The jury found the following verdict:</p> <p>“Aug 21, ’88, We find there was due the plaintiff on this judgment Jan’y 7th, 1881, at the date he applied a part of the proceeds of the collateral (Ralph Bagley) note as follows:</p> <p>$3000.00 $3000.00 “ On the debt,</p> <p>63.00 63.00 “Att’ys commission,</p> <p>“Total am’t of judgm’t and att’ys com. - $3063.00</p> <p>“We find the excess of application applied by plaintiff to the payment of this judgment on Jan’y 7th, 1881, to be 560.15.” On this verdict judgment was entered. The verdict and judgment were entered upon the docket as follows:</p> <p>“ August 21, 1883, jury being called, came and were sworn, as per minutes, who find for plaintiff, Jno. C. Reid, for five hundred and sixty dollars and fifteen cents.</p> <p>“January 24th, 1884, The jury fee having been paid, judgment is hereby entered on the verdict secundum regulan.”</p> <p>The plaintiff thereupon took this writ of error, assigning for error the admission of the testimony of the cashier of the plaintiff bank, and the answers to the defendant’s and plaintiff’s points as above noted, and the action of the court in opening the satisfied judgment.</p> <p>The judgment against Reid was fully paid and satisfied, and the court had no power to strike off the entry of satisfaction: Sohuitzler v. Hammill, 1 W. N. C. 471; McCalla v. Brennan, 14 W. N. C. 513. It is settled, that where usury has been actually paid to a National Bank, it cannot be used as set-off or defalcation to the payment of the note ; but the only remedy for its recovery is for the penalty under the Act of Congress: Barnet v. National Bank, 8 Otto 555; First National Bank of Clarion v. Gruber, 10 Norris 377; National Bank of Fayette County v. Dushane, 15 Norris 340. The right to recover back the interest paid, is recoverable only by “the person paying the same, or his legal representatives:” Revised Statutes of the United States, page 1012, § 5198; Bly v. Second National Bank of Titusville, 29 P. F. S. 453. Hence it was irrelevant in this trial to ask how much discount J. W. Guthrie paid: First National Bank of Clarion v. Gruber, 10 Norris 377. The loss of interest on account of usury is expressly made a forfeiture by the Revised Statutes § 5198, page 1012. That forfeiture cannot be legally extended by construction. It is only the interest that the “note carries with it, or that which has been agreed to be paid thereon,” that is forfeited. The statute provides for two different contingencies : one, where the note bears or carries with it interest. When the note carries interest, that interest is forfeited under the first clause. Where the note does not carry interest, then that which was agreed to be paid thereon is forfeited. The note in this case did not carry interest: then the. forfeiture was only of that which was agreed to be paid thereon. All that was agreed to be paid thereon in this case that was not paid, (as claimed by the defendant,) was one hundred dollars, when the first note of the series was discounted, and fifty dollars which was afterwards included in one of the notes at a subsequent renewal. As claimed by the plaintiff, there was only the fifty dollars which was included in one of the notes. Then, one of those amounts should have been the extent of the forfeiture.</p> <p>The order of the court opening the judgment cannot be reviewed on a writ of error: Hill v. Irwin, 8 Casey 314; Putney v. Collins, 3 Grant 72. The opening of a satisfied judgment is sustained by Montague v. McDowell, 3 Out. 269. The application of the money by the bank after notice not to apply it till the judgment could be liquidated was a wrong of which the bank cannot take advantage: Moloney v. Davis, 12 Wright 512; Guthrie v. Bashline, 1 Casey 80. Reid is not suing to recover usurious discounts paid by Guthrie, and therefore Bly v. National Bank, 29 P. F. S. 453, Barnet v. National Bank, 8 Otto 555, have no application: Miller v. Irwin, 4 Norris 376. Only the sum lent can be recovered without interest: Barnet v. National Bank, 8' Otto 558; Lebanon National Bank v. Karmany, 2 Out. 75; Lucas v. National Bank, 28 P. F. S. 231; National Bank v. Hoagland, 10 W. N. C. 123. The entry of the ver-diet and judgment as against the plaintiff was a mere clerical error.</p>

<p>Error to the Court of Common Pleas of Westmoreland county. Of October Term, 1884, No. 55.</p> <p>Assumpsit by J. D. Milligan and Martha J., his wife, in her right and for her use against M. M. Dick.</p> <p>On the trial, before Huster, P. J., the facts of the case appeared as follows: At the time of bis death in 1862, J osepb Guffey was the owner of some 113 acres of land in Sewiekley township, Westmoreland county. By bis will he devised this land to bis two daughters, Martha, the plaintiff, and Mary, who afterwards married M. M. Dick, the defendant. Mary Dick died in 1869 or 1870 intestate, leaving her surviving her husband, the defendant, and two children, Joseph and Jeremiah. Joseph died soon after, an infant; and Jeremiah, who was sickly, survived about three years longer, during which time his father was his guardian. Joseph Guffey left also another daughter, Mrs. Rebecca Greenawalt, who was living when the transactions occurred which gave rise to the controversy in this case.</p> <p>In the summer of 1871 Martha, who was then Mrs. Pinkerton and afterwards intermarried with J. D. Milligan, filed her petition in the Orphans’ Court for partition of the premises. The sheriff’s jury divided the land into two purparts, A. containing 57 acres 121 perches, appraised at $122.50 per acre; and B. containing 55 acres'138 perches, appraised at $115.41 per acre. A rule being entered on the heirs to appear and take or refuse the land at the valuation, the plaintiff, Martha, elected to take purpart B. at the appraised value and accordingly entered into recognizance to pay one half of the appraised value to Dick as the guardian of Jeremiah. The other purpart was not taken at the valuation and the court appointed Sheriff Kilgore as trustee to make sale of it. It was purchased by one Hamilton at $252 per acre, or $14,553 in all. The defendant paid the costs of the partition to the sheriff, amounting to $528.29, and gave him a receipt as guardian for one half the purchase money coming to his son, and also produced and delivered to the sheriff the plaintiff’s receipts for the other half of the purchase money. At the same time he satisfied the plaintiff’s recognizance for $8,221.71 given by her when she took purpart B. The sheriff executed and delivered to Hamilton a deed for the property, which he in turn shortly afterwards conveyed to Dick. Hamilton paid no money to the sheriff and was paid none by Dick for whom it was conceded he was acting.</p> <p>In 1878 Jeremiah Dick died, an infant, unmarried and without issue. Mrs. Milligan then brought this suit to recover from Dick $7,012.35, the amount called for by the receipt she had given him to enable him to settle with the sheriff, less $3,221.71, the amount of her satisfied recognizance. The manner in which Mrs. Milligan’s receipt was obtained and the purpose of its procurement were questions of fact in dispute. The substance of the testimony in behalf of the plaintiff was that Mr. Dick told her that his son would not live to enjoy the land; that he himself did not want it; that she ought to buy it in at the sale ; that she could then convey the one half of part A. to her sister, Mrs. Greenawalt, and that the land would thus be kept in the line of the blood of Joseph Guffey, from whom it came. This accorded with the desire of the plaintiff, and sbe expressed her intention of attending the sale and bidding on the land. She was prevented from doing so by the defendant, who said he would save her that trouble and have the land bid in for her; that he had thought of several men to do the bidding, and had finally selected ’Squire Hamilton.</p> <p>Afterwards the defendant told her that the land had been knocked down to Hamilton ; that he would, at once, make the deed to her, and that to close up the record, etc., it was necessary for her to sign certain papers. Upon the faith that the land had been bought in for her, and would shortly bo conveyed to her, she signed the receipt for 17,012.85. The defendant, upon one pretext or another, evaded her demands for a conveyance of the land until he refused to do so.</p> <p>Mrs. Milligan, the plaintiff, was asked on cross-examination “ whether she sold her share of the land and what she received for it, for the purpose of giving the full history of the transaction and her connection with it as part of the res gestae.” Objected to, and objection overruled. (First assignment of error.) The witness testified that about 1879, she sold it for $14,000.</p> <p>The testimony of the defendant was to the effect that Mrs. Milligan so far from desiring to benefit Mrs. Greenawalt, was not friendly to her and desired the land sold “ so that it would not revert ” to her in case of Jeremiah’s death. That she entered into an agreement with Dick by which the land was to be divided between them, and Dick was to pay her the difference in money between the valuations of the purparts and also make good to her by conveyance the difference in acres. That this arrangement was concluded by the payment of the costs, $528.29, by Dick, and by the conveyance of one acre of purpart “A.” to Mrs. Milligan to equalize her acreage. The defendant further claimed that the contention of the plaintiff showed an agreement to defraud Mrs. Greenawalt of her “contingent remainder” to Jeremiah’s share, and that, therefore, the plaintiff could not recover.</p> <p>The defendant presented the following points:</p> <p>2. The plaintiff, claiming that she signed the receipt for $7,012.35 as part of the consideration for the parol agreement of the defendant to convey her the land, such claim will not avail to destroy the effect of such receipt as against the defendant, unless such a contract was made with the defendant, about the said land so specified and definite in its terms that a chancellor could enforce it — if partly performed, or damages could be recovered for its breach.</p> <p>Answer. This proposition would be correct if the parties, plaintiff and defendant, were strangers to the proceedings and without any prior interest in the estate, and without explanation as to how the receipts came to be given. The parol promise standing alone would not be sufficient. (Second assignment of error.)</p> <p>7. That according to the plaintiff’s showing and claim, the defendant was the real purchaser of the land and A. C. Hamilton bid it in for him. This, if true, as contended by the plaintiff, leaves the land unconverted; the remainder, after death of defendant, going to Mrs. Greenawalt and the plaintiff as the heirs of Jeremiah Dick, deceased ; they may recover the same after the death of the defendant as if it had not been sold. The plaintiff, therefore, has sustained no injury and cannot recover the money claimed out of .the purchase money on the Kilgore sale, and the inheritance to the land also. Therefore the plaintiff cannot recover in this case.</p> <p>8. The plaintiff, by her testimony, claiming to show that the defendant was the purchaser at the sale, and thus getting nothing else but his life estate in the land which he had before, and he having heretofore receipted the recognizance for $8,221 for his son’s share in purpart “ B,” any promise by him to convey his estate, including his life estate, purpart “A,” would be without any consideration, and being parol and vague in its terms would be void under the statute of frauds; and the plaintiff not having been damaged but really benefited by the receipt, which the defendant gave her, cannot recover any of the proceeds of the Kilgore sale in this case.</p> <p>Answer to 7th and 8th points. We decline to instruct you positively, that by the plaintiff’s showing the whole of the land is unconverted. If there was actual fraud, as we have said, in procuring the sale for the benefit of the parties here, the sale would be void as to all parties in interest, leaving the land remaining as it was. But we decline to say that even if Dick was the purchaser, the sale would be without effect. If the proceedings and sale were fair and honest, and Dick was the purchaser, while not competent to buy the interest of his ward in his own right, he might purchase any other interest in the land. But as to the share of the ward, he could only hold it in trust for him or his heirs in case of his death. But, taking the purchase as a whole, together with a simple parol promise to convey, could not bind the defendant, or make it effective as between the plaintiff and defendant, and entitle the plaintiff to recover on such grounds alone. (Third assignment of error.)</p> <p>3d. If the plaintiff knew that defendant, being guardian of the estate of Jeremiah M. Dick, could not legally become the purchaser of purpart A., but she consented that he should get the title at such sale in disregard of his duty as guardian, thus converting tbe land into personal!}", and agreed with him that after such purchase by him she would receipt for her share of the purchase money, and he would convey it absolutely to her, thus defeating the estate of Jeremiah M. Dick, his ward, in the land, and also the contingent remainder of Mrs. Greena-walt therein, she is in pari delicto with defendant as purchaser of the land, and cannot recover for defendant’s failure to make title to her.</p> <p>4th. That the defendant could not purchase the land at the sale by Kilgore and have the deed made to himself, so as to convey a good title to Mrs. Milligan; and if he did so, it would be a fraud on his ward, Jeremiah M. Dick, and if Mrs. Milligan agreed with defendant and wanted him to so purchase, and knew afterwards that Hamilton had bid it in for the defendant, and that afterwards Hamilton made the deed to him, and she wanted the deed from Dick in pursuance of this arrangement so that she could get the title herself, she is in pari delicto and cannot recover.</p> <p>Answer to 3d and 4th points: These points raise the question of fraud in law and in fact, and in answer, we instruct you that if you believe the plaintiff and defendant entered into any arrangement for the purpose of directing the course of descent, and securing the land to her, to the wrong and prejudice of the heirs of Mary Dick, and Jeremiah Dick, of whom the defendant was guardian, she would be in pari delicto, or a party to the wrong, and could not recover upon the strength of any promise made by the defendant under the circumstances. Dick could not purchase at the sale to the prejudice of the interest of his ward. (Fourth assignment of error.)</p> <p>Verdict and judgment for defendant. The plaintiff took this writ of error, assigning for error the admission of the jdaintiff’s testimony on cross-examination, and the answers of the court to the defendant’s points as above noted.</p> <p>The evidence as to the price for which the plaintiff sold her land, eight years after the partition, was irrelevant: Hill v. Meyers, 7 Wright 170; Weidler v. Farmers’ Bank, 11 S. & B.. 134; Bratton v. Mitchell, 3 Barr 50; Cummings v. Williamsport, 3 Norris 472. Even if the contract is void under the Statute of Frauds the plaintiff can recover the money she advanced to aid the defendant in obtaining the title upon the faith of his agreement: Bender v. Bender, 1 Wright 419 ; Hastings v. Eekley, 8 Barr 197; Moore r. Small, 7 Harris 467; McNair v. Compton, 11 Casey 23. There was no fraud on the plaintiff’s part. Any fraud in the case arises out of Dick’s relations to bis ward, who held his mother’s share of the land in fee subject to his father’s curtesy. It is absurd to speak of Mi’s. Greenawalt’s “ contingent remainder.” As well might a son claim a “contingent remainder” in the land his father owns in fee, and endeavor to avoid his father’s sale to a stranger. It was error to submit the question of fraud to the jury: Stouffer v. Latshaw, 2 Watts 167; Elkins v. McKean, 29 P. F. S. 493.</p> <p>The contract alleged by the plaintiff is void under the Statute of Frauds: Woods v. Farmare, 10 Watts 196; Rowand v. Finney, 15 Norris 192; Meason v. Kaine, 13 P. F. S. 340. The agreement was a fraud on the defendant’s minor son, whose title was to be- divested as well as Mrs. Greenawalt’s possible reversion, and the plaintiff cannot recover: Swan v. Scott, 11 S. & R. 164; Evans v. Dravo, 12 Harris 65; Ritter v. -Lehigh Yalley R. R., 7 W. N. C. 122.</p>

<p>Error to the Court of 0_yer and Terminer of Westmore-land county: Of October Term, 1884, No. 46.</p> <p>Indictment of John T. Moss for the murder of James McGugan. Plea, not guilty.</p> <p>The cause was called for trial before Hunter, P. J., and on November 21st and 22d, 1888, jurors wore duly chosen and sworn. The case was opened and witnesses called and examined on behalf of the commonwealth until about noon on November 24th, when the following communication was presented to the court by one of the jurors:</p> <p>“ I have a brother-in-law that lias bad tbe consumption for almost two years, and is now very low if alive. He has given me instructions with regard to his burial which I would like to carry out, but under the circumstances would like to see him once more if alive, and if lie is dead to give instructions with regard to his burial. Can I get permission from tbe court to go homo in charge of an officer? My family know nothing at all about this trial, besides I know the oath I took. If I am allowed to go, please state how close I shall be bound down — if 1 may be allowed to speak to my family on subjects outside of this trial or not.- Respectfully submitted,</p> <p>“James H. Byerly.”</p> <p>In pursuance of this request the court allowed tbe juror to absent liimself, as appears by the following minute entered by the clerk:</p> <p>“ The foregoing communication having been addressed to the court, and it having been made to appear to the court that tbe person referred to is now dead, and that the juror is desirous to attend the funeral, the court thereupon granted permission to the said juror, James H. Byerly, and placed him in the custody of officer James White, who was duly appointed for that purpose, and sworn according to law, and to whom (the officer as well as the juror) full instructions were given by the court as to the care to be observed, and the clerk was directed to make a full minute hereof.”</p> <p>After the return of the juror, Byerly, the trial proceeded in due course, and on December 1st, 1888, the jury returned a verdict of guilty of manslaughter.</p> <p>Subsequently defendant’s counsel moved in arrest of judgment and for a new trial, assigning inter alia the following reason:</p> <p>“John T. Moss was arrested and indicted for the murder of James McGugan.. The prisoner was arraigned, and after the jury were empannelled and sworn, one of the jurors was permitted to separate himself from his fellow jurors for a period of two days. This was error, because a juror is charged with a prisoner as .soon as he has looked upon him and taken the oath, for he cannot be withdrawn.”</p> <p>By the Court : “ The last reason which was so strongly insisted on by counsel in their argument on the motion, viz.: the separation of one of the jury from his fellows during the trial, deserves much consideration. We have examined the authorities cited, and we find that in all of them, except Peiffer v. Commonwealth, 3 Harris 468, there was a separation without the knowledge of the court, and mostly in the absence of an officer. In the Peiffer case the jury were allowed to go to their homes, no one of whom was under the care of an officer. Such is not the case here. Nor do we think the case of Goersen v. Commonwealth, 10 Out. 477, is by any means a parallel case. In numerous cases where there was a separation without the permission or knowledge of the court, and the commonwealth satisfied the court that there had been no tampering with the jury, a new trial was refused.</p> <p>“ In the present case, extraordinary care was taken that the jury were properly guarded. The juror who was allowed to separate on an e.rrand of sorrow and philanthropy was an intelligent man. In his petition to the court he stated that he knew the nature of the oath he had taken. He was placed in the hands of an officer who was not only sworn, but fully instructed as to his duty and the care to be observed, and the juror himself was cautioned. The officer took him in charge and returned with him promptly at the appointed time. There was no proof that he was not constantly in the custody of the officer, and the presumption is that the officer obeyed the instructions of tbe court. On the question raised tbe authorities are collated in Wharton Or., PI. and Pr., sections 814 to 826 inclusive, in no one of which can I find what was done here to have been fatal. The only case similar to this (and which has become a matter of history), is the case of the United States v. Gitteau, a case where the nation’s honor required that even though the prisoner was a poor, wicked, bad man, and had slain the most eminent personage, the technical rules of the law should be observed. There, after lengthy argument and due consideration by the court, it was adjudged not to be irregular for a juror to go in custody of an officer to the funeral of his wife.</p> <p>“ What we have said here applies as well to the motion in arrest of judgment as to the motion for a new trial.</p> <p>“And now, January 19th, 1884, upon due consideration the motions in arrest of judgment and for a new trial are overruled.”</p> <p>On February 2d, 1884, tbe court accordingly sentenced the prisoner to pay a fine of six cents, the costs of prosecution, and to undergo an imprisonment at hard labor for four years. Whereupon Moss took this writ of error, assigning for error the refusal of his motions in arrest of judgment and for a new trial.</p> <p>-The separation of the jury, permitted in this case, was error, and the judgment should be reversed: Peiffer v. Commonwealth, 3 Harris 466 ; McLain v. State, 10 Yerger 241 ; Hines v. State, 8 Humph. 597; Wiley v. State, 1 Swan. 256 ; State v. Prescott, 7 N. H. 287 ; Woods v. State, 43 Miss. 369; Boles v. State, 13 Smedes & Marsh 398 ,• Goer-sen v. Commonwealth, 10 Out. 477. It did not appear affirmatively that the officer had Byerly in charge all the time ho was absent, and that be had not mingled witb tbe public in general, and had not conversed with any one on the subject of the trial.</p> <p>In all of the cases referred to as bearing on the point presented, and where the objections were held sufficient, the separation was the wilful and voluntary act of tbe juror, or on account of improper license granted by tbe court, without proper restrictions. In no instance, where the court permitted a separation of .the jury and placed them under the care of a proper officer, and under the usual restrictions, has the entire propriety and legality of such separation been questioned, or a new trial granted, for that reason.</p>

<p>Error to the Court of Common Pleas of Forest county; Of October Term, 1884, No. 65.</p> <p>Trespass quare clausum fregit, by William Petrie and John L. Kimberly, for use of The Tionesta Creek Oil Company against William F. Wheeler, N. P. Wheeler, John E. Dusen-bury and William Dusenbury, doing business as Wheeler, Dusenbury & Co., to recover damages for timber trees cut and removed from a tract of land containing 447 acres, being parts of tracts Nos. 5196 and 5269, in Kingsley township.</p> <p>On the trial, before BrowN, P. J., the record was amended by the substitution of John G. Carpenter as plaintiff. It was admitted that on and before August 13th, 1857, the title to the land on -which grew the timber in dispute was in Henry Sheldon, Henry Dusenbury, William F. Wheeler and Hamilton Stowe. Upon that day these parties conveyed the land to the plaintiff Carpenter, by a deed in which the habendum was as follows :</p> <p>“ To have and to hold the said piece or parcel of land, with the hereditaments and premises hereby granted and intended to be, with the apurtenances, unto the said party of the second part, his heirs and assigns, to and for the only proper use and behoof of the said party of the second part, his heirs and assigns forever, except all the pine timber fit for sawing, which the party of the first part hereby reserves unto themselves, their heirs and assigns, with the right to enter upon said land for the purpose of taking off said pine timber without any let or hindrance from the party of the second part, his heirs or assigns.”</p> <p>Carpenter himself testified as follows: “In the fall of 1864 I contemplated selling out and told Mr. Stowe and also Mr. Wheeler, while he was there at Newtown, that I was contemplating selling out, and I desired that they should remove all the timber they claimed under the reserve, so that I could make a free title without the reserve.”</p> <p>Carpenter was directly contradicted as to this by both Wheeler and Stowe. Plaintiff further gave in evidence a deed from Stowe to himself dated January 25th, 1865, conveying Stowe’s one undivided half interest in the timber reserve, reciting the reservation in the deed of August 13th, 1857, and that “ the said Stowe and others, grantors therein, have taken off all the pine timber from said tract, which by the terms of the aforesaid deed they are entitled to take.” This deed was not recorded until April, 1881, and Stowe conveyed his right for valuable consideration to the defendants by deed dated May 30th, 1868, and recorded August 12th, 1868. The timber which was the subject of the suit was cut between the fall of 1880 and October, 1882, and testimony was given as to the size' and value of the timber cut and converted by the defendants.</p> <p>The court left it to the jury to determine whether Carpenter had given any notice to Stowe and Wheeler to finish cutting their timber, and also whether the notice given was sufficient: ruled, that the deed of January 25th, 1865, was evidence against the defendants, not having been recorded when the conveyance was made to them by Stowe in 1.868, and then charged:—</p> <p>“If under the instructions given you, the defendants’ right to take any of the timber was exhausted by reason of notice to remove it, and the failure so to do within a reasonable time thereafter, then the defendants are liable for the timber cut and carried away. But on the other hand, if the rights of defendants were not exhausted by reason of notice to remove, and the lapse of reasonable time, then they are only liable for cutting and taking away of such timber, if any, as was not fit for sawing as of the date of August 13th, 1857, and if they only took such as was then fit for sawing, there should be no verdict against them; but if they took timber that was not in 1857 fit for sawing, then for so much there ought to be a verdict in plaintiff’s favor for the fair market value of the timber in the tree situated where this was.”</p> <p>The jury found a verdict for the plaintiff for $125 single damages: and the court, upon motion of the plaintiff, after-wards entered the verdict in treble damages in the sum of 8375, under the Act of March 29th, 1824, on which judgment was duly entered. Whereupon defendants took this writ of error, assigning for error the action of the court below in entering the verdict and judgment in treble damages.</p> <p>The Act of 1824 gives treble damages only where the cutting and conversion is of “timber trees growing on the lands of another; “therefore neither tenants in common nor parties jointly interested in the land are persons against whom the penalty can be enforced. By the exception in the deed the grantors retained an interest in the land. Yeakle v. Jacob, 9 Casey 376; Patterson’s Appeal, 11 P. F. S. 294; Bowers v. Bowers, 14 Norris 477.</p> <p>Although the Act of May 4th, 1869, gave the action of trespass for the cutting of timber by one against the consent of his co-tenant, it nowhere prescribes the penalty imposed by the Act of March 29th, 1824. Both statutes are penal and should be strictly construed. The reservation of the right to enter and cut timber included the right to select it. Boults v. Mitchell, 3 Harris 379. Even if the defendants abused their right, still they are uot rendered trespassers ab initio under the rule in the Six Carpenters’ case, and therefore trespass q. c. f. is improper: i\.llen v. Crofoot, 5 Wendell 507.</p> <p>The Acts of May 4th, 1869, and March 29th, 1824, are in pari materia. The former Act, in § 1, declares that “ it shall be unlawful for any owner or owners of any undivided interest in timber land to cut or to remove, or to cause to be cut or removed, from the said land any timber trees without first obtaining the written consent of all co-tenants in said premises.” And § 2 provides that “the parties injured shall have every remedy in law and equity.for the recovery of damages for the cutting or removing of the same, which they now have against an entire stranger to the title.” These statutes are to be construed together: Keeling’s Road, 9 P. F. S. 358. In both cases the mischief was not that there was no form of action by which the injured party could recover the fair market value of his trees or of his interest in the trees as they stood at the time of their destruction, but that such recovery was in most cases an inadequate compensation, and that the right thereto was no protection against such lawlessness as was complained of in this case. The legislature had this mischief in view when they enacted the statute of 1869, and when they used the word “remedy” they did not mean a mere form of action which experience proved would be wholly ineffectual to suppress the mischief; they meant to give a right to recover such damages as would not only be an adequate compensation for i he injury, but a protection against that kind of' lawlessness that has destroyed so much valuable timber. It was the proper practice for the jury to find “single damages,” and for the court to enter judgment in double or treble the amount, as the pleadings and evidence should warrant: Welsh v. Anthony, 4 Harris 254; O’Reilly v. Shadle, 9 Casey 489; Hughes v. Stevens, 12 Casey 320. From 1864 until 1880 there was no claim or pretence that the grantors had any further right. There was also abundant evidence from which the jury may have found that the right was ended by notice if not by exhaustion. Carpenter’s testimony was direct, positive and circumstantial. If the jury found that the defendants had no right of entry at the time of the trespass complained of in this suit, either by reason of their having previously removed all the pine timber fit for sawing in 1857, or by reason of the notice given in 1864, then there cannot be any question of the propriety of the court’s action in trebling the damages found by the jury.</p>

<p>1. Where a statute makes indictable two or more distinct acts connect&i. with the same transaction, each of which may be considered as representing a phase of the same event, they may be coupled in one count.</p> <p>2. A. & B. were indicted for forcible entry and detainer, the indictment containing but one count. Before plea filed, their counsel moved . to quash the writ, which the court refused to do. The jury returned a verdict of not guilty, but that the defendants pay the costs. Defendants then moved in arrest of judgment that the offences with which they were charged were distinct and separate, that they were coupled in one count and, that the indictment was therefore void for duplicity. The court sustained the motion and arrested the judgment.</p> <p>Held to be error. The indictment was good, and judgment or sentence should have been entered thereon.</p> <p>3. Semble. That if there had heen duplicity in the indictment the defendants in this ease could have taken advantage of it by motion in arrest of judgment, but perhaps otherwise, if they had voluntarily entered their plea and put themselves xrpon trial.</p>

<p>Where a person purchases property abutting on a street, a change in the grade oí which has been legally established, and the work of grading actually begun on the ground before the purchase, the damages accruing to the property by reason o£ the change in grade will not be divided so as to give the purchaser a share thereof. He takes the property cum onere.</p> <p>2. But where some work has been done toward altering the natural grade of a street, but it does not appear that any specified grade has been fixed by tíre municipality, what has been done creates no legal presumption that any further change in the grade will be made. And a person buying property abutting on a street after such first change in grade has been made, but before other alterations acknowledged to have been made by municipal sanction, may, since the constitution of 1874, recover for the damages accruing to his property by reason of the last mentioned changes.</p>

<p>Error to the Court of Common Pleas of Clarion county: Of October Term, 1884, No. 73.</p> <p>Debt, by J. T. Lee for the use of Melissa C. Lee, his wife, against R. D. Newell and E. M. Lee, administrators of Jacob Edmonds, deceased, upon six notes under seal, drawn by Ed-monds in favor of J. T. Lee.</p> <p>One of the notes in suit, for $321, was dated May 28th, 1866, payable one year after date ; the other five were dated May 14th, 1874, for $1,000 each, and were payable in five, seven, nine, eleven and thirteen months after date respectively. On May 7th, 1874, Lee gave Edmonds a bond and mortgage for $7,000, which remained unsatisfied until December 31st, 1880.</p> <p>On the trial, before Knox, P. J., the plaintiff claimed and endeavored to show that Lee and Edmonds had business dealings with each other extending over many years, and that the five notes of May 14th, 1874, were the result of a general settlement of that date ; that the note of May 28th, 1866, was omitted from the settlement by mistake and therefore included with the others; that Lee was entirely solvent when he received the five notes, and he delivered them to his wife Melissa, as a gift, together with the note for $321, she thereafter retaining possession of them; that about 1876 Lee became involved, filed a voluntary petition in bankruptcy, and was adjudged a bankrupt, but before his property was actually taken into the possession of the assignee, he paid all his debts and his assignee made him a deed of reconveyance; that Mrs. Lee retained possession of said notes until after Edmond’s death in June, 1882, when she demanded payment from his administrators, and being refused brought this suit on July 7th, following.</p> <p>The defendants admitted the execution of the notes, but denied any title to them in Mrs. Lee and alleged payment. They offered in evidence an exemplification of the record of Lee’s proceedings in bankruptcy, and testimony to show that for years after making said notes, Edmonds was fully able to pay them, while Lee was poor and in absolute need of the money; evidence of declarations by Mrs. Lee, made in 1867, in the absence of her husband, respecting their indebtedness to Edmonds; also of declarations and admissions by Lee to tlio same effect, made in the absence of his wife, and after the alleged transfer of the notes to the latter; evidence of continued business dealings between Lee and Edmonds after the notes were given, and of settlements between them precluding. as alleged, the existence of any large unsettled claim.</p> <p>Plaintiff, in rebuttal, gave evidence of declarations by Ed-monds admitting the existence of the notes down to a short time before his death ; and offered to follow with proof that Lee never actually parted with possession of his property to his assignee, by giving in evidence the deed of reconveyance from said assignee back to Lee. Offer refused. Exception. (Tenth assignment of error.)</p> <p>Plaintiff submitted, inter alia, the following points:</p> <p>1. “The Statute of Limitations interposes no obstacles to the plaintiff’s recovery.” Affirmed.</p> <p>2. “ The delay of the plaintiff to collect the notes at maturity, or to bring suit sooner for the recovery, is but slight evidence of the payment of the notes.”</p> <p>Answer. “ If there were no other evidence or circumstances in this case than mere expiration of time, that would not be sufficient in itself to defeat the plaintiff’s claim; but that fact must be taken into consideration by the jury, in connection with the other circumstances and facts in the case, and given such weight as it may be entitled to, as explained by such facts and circumstances; and as thus explained, we answer this point in the affirmative.” (Twelfth assignment of error.)</p> <p>6. “ If J. T. Lee endorsed and delivered, as a gift, the notes in question to his wife, as her own separate property, and Jacob Edmonds knew it, any declarations or acts of J. T. Lee, after such delivery and knowledge of Edmonds, in the absence of Mrs. Melissa Lee, should be disregarded by the jury in making up their verdict.”</p> <p>Answer. “If the husband endorsed these notes over to his wife as a gift with Jacob Edmond’s knowledge and consent, the result stated in this point would follow, but the jury must Hud this from all the facts in the case ; and as further explained by defendants’ points and our answers thereto, we answer .this point in the affirmative.” (Fourteenth assignment of error.)</p> <p>Defendants asked the court to charge:</p> <p>2. “ The possession of dioses in action, such as the notes in suit, for instance, by the wife while cohabiting with the lius-band, is not evidence of title in tbe wife. In such case the wife is bound to show by satisfactory primary evidence her title to such choses in action, and in the absence of such evidence, the notes would remain the property of the husband.”</p> <p>Answer. “ When they make use of the words ‘ choses in action,’ that means a note or due bill, something of that kind. In this case it means these notes in suit. We will call your attention to a decision of the Supreme Court on that subject, in a late case, delivered by Justice GobdoN, which expresses it rather more pertinently than we are able to. He says: ‘Before the Act of 1848, the marriage contract vested the right to the personal property of the wife in the husband. She had no such thing as a separate and independent personal estate. Since that Act she may not only continue to own and hold the property she had at the time of the marriage, but she may, during coverture, acquire a separate estate. In favor of such an estate, however, there is no legal presumption, but the contrary; the husband is presumed to be the owner of the property of which he and the wife have the joint possession. Does she purchase lands or goods, their price is presumed to come from the pockets of the husband; or does he transfer to her property, real or personal, it is presumed to be a gift from him to her. Thus the Act of 1848, whilst it makes it possible for a feme covert to have and enjoy a separate estate, raises no presumption in favor of the existence of such an estate. She must affirmatively establish that fact, and this] not only because of the ease with which the husband’s creditors might otherwise be defrauded, but because, ordinarily, it is impossible for her to have a possession separate and distinct from her husband; hence one of the most obvious and prominent marks of proprietorship is, in her case, not only wanting, but such possession being usually attributed to the husband, a presumption of his ownership naturally follows, by which his credit is increased. Even in a case where a widow claims property as against her husband’s estate, it has been held that she must show by evidence which does not admit of a reasonable doubt, either that she owned it at the time of her marriage, or else acquired it afterwards by gift, bequest, or purchase. In case of a purchase after marriage, the burthen is upon her to prove distinctly that she paid for it with funds which were not furnished by the husband. To bring the property of a married woman under'the protection of the Act of 1848 — that is the married woman’s Act — it is made necessary by the letter, as well as the spirit of the statute, to prove that she owns it. She must identify it as property which was hers before marriage, or prove how she came by it afterwards. Evidence that she purchased it, amounts to nothing unless it be accompanied by clear and full proof that she paid for it by ber own separate funds. In the absence of such proof, the presumption is a violent one that her husband furnished the means of pay ment.’</p> <p>“ In addition to that, gentlemen, we say to }rou that a husband has a right to make a gift to his wife, and where the gift is made to the wife under proper circumstances, it is good, and she can hold it as such; but that must not be against creditors. He must not denude himself of property or the right whereof the creditor has the right to make his money, for the purpose of creating a maintenance or support for the wife in the shape of a gift. If so, it would be fraudulent as to those creditors. But if there is no creditor to suffer, and the man has ample remaining to pay his debts, so that there is no one to be injured, then it is simply a matter between husband and wife, and if the husband gives it, he would not have the right to reclaim it. There is the law. It belongs to the wife.</p> <p>“ In addition to creditors, if there were dealing between men —say Jacob Edmonds and Jefferson T. Lee — and there was an understanding between them, like that mortgage debt, that these notes would be satisfied and paid by that mortgage debt, aud that was the original understanding, and Jacob Edmonds did not have knowledge of nor consent to the transfer to the wife and did not agree that she should hold the notes, — he had a right to follow them because they are under seal — they are not negotiable. He had a right to follow them; and a settlement honestly made, bona fide, between him and Jefferson T. Lee afterwards of those notes would satisfy them, so far as Jacob Edmonds was concerned.” (Fifteenth assignment of error).</p> <p>3. “That in the case of acquisition by the wife after marriage of dioses in action, such as the notes in suit, the law presumes that they are the property of tbe husband in the absence of satisfactory primary evidence that she purchased the same and paid for them out of her separate estate, and there being no sueli proof in this case, the verdict should be for the defendants, if the jury believe from the evidence that Jacob Edmonds settled aud paid the notes in suit, either by applying them to the payment of a mortgage he held against J. T. Lee, or by any other settlement between the parties.”</p> <p>Answer. “ We answer that in the affirmative.” (Sixteenth assignment of error).</p> <p>In the general charge the court instructed the jury, inter alia, as follows:</p> <p>“ Gentlemen, you must take this testimony all together, with the notes, the time that has run, the evidence on behalf of the defence, the rebutting evidence on behalf of the plaintiff, and the rebutting testimony subsequently offered on behalf of the defendants. ..... Time becomes material in connection with the circumstances in the case showing payment. [Settlement — anything that settles a note, such as settling between parties — would amount to payment and that is what we meant by payment. Payment can be made by settlement between parties, of accounts, by notes, adjusting their affairs, liquidation, just as much as direct payment.'] (Eleventh assignment of error). Whenever you hear us use the word “payment,” in reference to the points or the answers we simply mean that it was satisfied between the parties in some way.”</p> <p>Verdict for the defendants and judgment thereon ; whereupon the plaintiff took this wait of error, assigning for error the answers to points and the rejection of evidence as above set out; and that part of the general charge included in brackets.</p> <p>The deed of recon-veyance from the assignee to Lee was admissible to rebut the idea of insolvency ’ contended for by the defendants. That 2^art of the general charge complained of in the eleventh assignment, permitted the jury to find payment from settlement, while in fact there was no evidence of any settlement between the parties which would satisfy these notes. In answer to the defendants’ second point the court read the opinion of the Supreme Court in Wilson v. Silkman, 1 Out. 512, which defines the burden of proof cast on a wife in a contest with the creditors of her insolvent husband. This case is a suit by a solvent husband for the use of his wife, against his solvent debtors, and the opinion in Wilson v. Silkman, has no bearing on it whatever. Mrs. Lee’s title could in no way affect the defendant’s liability to pay the notes, and she was not re-required to make any such proof thereof as the jury were led to suppose she must by the answer to defendants’ second point. It was no defence to the notes to allege wrant of title in her: Artisan’s Ins. Co. v. Moonejr, 4 Brew. 103; Crawford v. Stewart, 38 Pa. St. 35; Armstrong v. City of Lancaster, 5 Watts 68; • Memphis, etc., R. R. Co. v. Wilcox, 48 Pa. St. 161; Reynolds v. Richards, 14 Pa. St. 205.</p> <p>Lee was the debtor of Edmonds by the bond and mortgage and remained so until they were settled and satisfied. A right existed in Edmonds to have so much of this indebtedness applied as set-off to the motes in suit as would satisfy them. This right to set off, Edmonds could not be deprived of even by an assignment or transfer to a holder for value: Thompson v. McClelland, 29 Pa. St. R. (5 Casey) 475; Jacoby v. Guier, 6 S. & E. 448; Filbert v. Hawk, 8 Watts 448. The ease of Wilson v. Silkman was properly read to the jury and was applicable to Mrs. Lee’s claim to be the owner of the notes. If the notes were used by her husband, J. T. Lee in a settlement and payment of the mortgage debt due Edmonds, Edmonds was, until such satisfaction was consummated, a creditor of Lee, and Lee was Edmonds’ debtor. Payment may be presumed “ from an intermediate settlement of accounts:” 2 Wharton’s Law of Evidence, Section 1363. “ So payment of a debt, after the death of the parties, may be presumed from the fact that at the time of maturity the debtor was in opulence and the creditor in needy circumstances: ” Levers v. Van Buskirk, 4 Pa. St. (4 Barr) 309; Henderson v. Lewis, 9 S. & R. 379; Lesley v. Nones, 7 S. & R. 410 ; Diamond ®. Tobias, 12 Pa. St. '812; Connelly v. McKean, 64 Pa. St. 113. Time was properly submitted to the jury, along with the other testimony in the case.</p>

Ereos to the Court of Common Pleas of Forest county: Of October Term, 1883, No. 128. Replevin, by the Woodland Oil Company against John Shoup, for about 1,000,000 feet of pine lumber, valued at #10,000. At the trial, before Taylor, P. J., the following facts appeared: On June 10th, 1878, the plaintiffs purchased at a Treasurer’s sale of unseated lands in Forest county for ar-rearages of taxes, a certain tract of unseated timber land in .Kingsley township.

102. Tins was an action of trover and conversion, by J. C. Geist and W. D. Thomas against R. S. Winlaek to recover the value of a raft of square timber claimed by the plaintiffs as their property and taken and converted by the defendant to his own use. Plea, not guilty.

152. This was, in the court below, an appeal by the Poor District of Knox township from an order of a Justice of the Peace directing the removal of E. H. Vanwormer and famity, paupers, from Warsaw to Knox township, on the ground that they had a legal settlement in the latter township.

<p>Error to the Court of Common Pleas of Clarion county: Of October Term, 1884, No. 98.</p> <p>Assumpsit, by J. R. Foster, cashier, in trust for the New Bethlehem Savings Bank, against W. F. Collner and Theo. S. Wilson, on a promissory note, of which Henry Weller was maker and the defendants were payees and indorsers.</p> <p>On the trial, before Knox, P. J., the following facts appeared : On December 3d, 1881, Henry Weller, now deceased, presented for discount at plaintiff’s bank, a promissory note, made by him, dated November 28th, 1881, for $5,000, at four months, payable to the order of Theo. S. Wilson and W. F. Collner, at the New Bethlehem Savings Bank, and indorsed, “W. F. Collner,” “Theo. S. Wilson.” The note was discounted by plaintiff, who paid to Weller all the proceeds except $1,120, which was paid by a New York draft to the order of Theo. S. Wilson, one of the indorsers. At the maturity of the note, the maker, Weller, paid $500 and the discount on a renewal note which he then presented, dated March 31st, 1882, for $4,500, at four months, made by himself, payable to the order of W. F. Collner and Theo. S. Wilson, at the New Bethlehem Savings Bank, and indorsed, “ W. F. Collner,” “Theo. S. Wilson.” This note was discounted by the bank in renewal of the first note, which was then surrendered to Weller. The second note, not being paid at maturity, was protested for non-payment, and this suit was brought, August 30th, 1882, against the indorsers.</p> <p>The defendant, Wilson, admitted that he indorsed both jiotes. His name was written, in each instance, under that of W. F. Collner, and after it in point of time. The defendant, Collner, denied that he indorsed either note, and alleged that his name on each was forged.</p> <p>The plaintiff called Manasseh Arnold, a stockholder in the bank, to prove the signature of W. F. Collner on the back of the note. Objected to as incompetent to testify to any thing which occurred during the lifetime of Henry Weller. Objection sustained. (First assignment of error.)</p> <p>Plaintiff offered draft dated New Bethlehem, December 3d, 1881, on the National Park Bank, New York, for $1,120, payable to the order of Theo. S. Wilson, signed J. R. Foster, cashier, indorsed Theo. S. Wilson; in order to show that part of the proceeds went to one of the defendants. Objected to on behalf of the defendant, Wilson, as irrelevant. Objection sustained. (Second assignment of error.)</p> <p>William Pollock, a witness called for plaintiff, after testi-lying that he had been a bank officer for twenty-five years, was handed the note in suit and asked: “Look at the face of that note, and state whether as a bank officer, if that note was offered for discount, there is or isnot anything on its face of a suspicious character, that woula'eause yon to distrust It ? ” Objected to by defendants on the ground that it was asking an opinion of the witness. Objection sustained. Exception. (Third assignment of error.}</p> <p>Nathan Myers, called on behalf of the defendants, testified that he had been a cashier for ten years. An exhibit being shown the witness having upon it the' signature “W. F. Collner,” which Weller had sworn (in a deposition taken soon after suit brought) he wrote himself; also the first and second notes made by Weller having the indorsements “W. F. Collner ” — witness was asked “ whether the signatures on the two latter notes were written by the same person as the first signature, or were similar to the first signature ? ” Objected to by plaintiff on the ground that it would be allowing a comparison of hand-writing by the expert. Objection overruled. Exception. (Fourth assignment of error.)</p> <p>In cross-examination plaintiff’s counsel asked the witness Myers whether there was any thing on the face of the renewal note which would make him, as a bank officer, distrust it, if it were presented in his bank as a renewal note. Objected to by defendants. Objection sustained. Exception. (Fifth assignment of error.)</p> <p>J. R. Foster, called in rebuttal, having sworn that he had ten years experience in judging hand-writing as a banker, was asked: “Look at this note, exhibit C., for $1,500, examine the face of it, and state whether the word ‘ fifteen,’ in the line that reads ‘fifteen hundred,’ is in ink or in pencil.” Objected to on the ground witness was interested, as a stockholder, in the plaintiff’s bank, and could not testify as to matters relating to the case, which occurred during Weller’s lifetime. Objection sustained. Exception. (Sixth assignment of error.)</p> <p>The plaintiff submitted, inter alia, the following point:</p> <p>“Even if the jury should find from the evidence that the defendant Collner cannot be held because of the alleged forgery, or of the fraudulent alteration of the note as to him, there may be a recovery in this suit against the defendant Wilson, if he indorsed the note in suit below the name of W. F. Collner, and after the name of Collner was written on the note; and especially would this be so, if Wilson was not a mere accommodation indorser, but participated in the proceeds of said note.” Refused. (Ninth assignment of error.)</p> <p>The defendants asked the court to charge :</p> <p>“ That if the note on which suit is brought was fraudulently raised by the maker after indorsement by Collner even if genuine, from fifteen hundred to forty-five hundred dollars, the verdict of the jury should be for the defendants.” Answer. “ As explained in the general charge, we answer that point in the affirmative.” (Eighth assignment of error.)</p> <p>In its general charge, the court instructed the jury, inter alia, as follows:</p> <p>“ Indorsers are bound simply to ordinary care and diligence. They are bound to protect their paper bjr simply ordinary care and diligence, and no more. If the writing in the face of the note and the blanks were filled in, and there were no spaces left, and the note was filled in with a lead pencil or an indelible pencil of such a nature that it would indicate the use of something permanent, or of ink — they are only bound to ordinary care — would that be ordinary care? Would not that be using diligence ?</p> <p>“ Take the circumstances of the case and the facts and apply that rule, and if you find there was a want of ordinary care in the issuing of this note by the indorsers — in other words, indorsing it, giving it credit, and returning it to Major Weller so he could have it discounted — under such circumstances showing that want of ordinary care — which is all that is required — then, gentlemen, they would be responsible to the New Bethlehem Savings Bank, although the note was raised.” (Seventh assignment of error!)</p> <p>Verdict for defendants and judgment thereon ; whereupon the plaintiff took this writ assigning for error, the admission and rejection of evidence, and the answers to points as above set out, and that part of the general charge of the court, cited.!</p> <p>Arnold and Foster were excluded as interested witnesses on the ground that Weller, who died before the trial, was the “ assignor of the thing or contract in action,” and hence they were incompetent under the Act of 1869. But he did not assign to the bank, because he had no property in the note capable of assignment. It was not property in his hands, but simply evidence of indebtedness by him to the payees or their assigns. This case is not ruled by Karns v. Tanner, 66 Pa. St. 297, because neither party represents Weller’s interests or claims his rights.</p> <p>Foster was competent, as an expert in handwriting, to prove that at the time of the trial the word “fifteen ” in the $1,500 note was in pencil, not in ink. The objection that such testimony would tend to establish inferentially that it was not in ink prior to the death of Weller, as Collner testified it was, is effectually disposed of by Rothrock v. Gallaher, 10 Nor. 108, and Stephens v. Cotterell, 3 Out. 188. The testimony of Pollock and Myers, as bankers, was admissible under the rule that on a question of science, skill or trade experts are permitted to give their opinion: 1 Greenl. Ev. § 440. But the comparison of handwriting by Myers, as permitted by the court and complained of in the fourth assignment, was clearly error. Such comparison is exclusively for the jury : Travis v. Brown, 7 Wright 9 ; Aumick v. Mitchell, 1 Norris 211,* Berryhill v. Kirehner, 15 Norris 489; Clermont v. Tullidge, 4 Carr. & Payne 1; Mutchinson v. Allcock, 1 Dowd. & Ryl. 165 ; Jackson v. Phillips, 9 Cowen 94. The general doctrine that if there are two payees both must indorse to pass title, is avoided by the special circumstances of this ease. Wilson put his name to the note under that of Collner and after it in point of time; he thereby vouched to the world for the genuineness of his co-payee’s and eo-in-dorser’s signature: Bank of United States v. Bank of Georgia, 10 Wheat. 355; Chambers v. Union National Bank, 28 P. F. S. 209; Weakly v. Bell, 9 Watts 273; McConeghy v. Kirk, 18 P. F. S. 200; Story on Prom. Notes § 135; Turnbull v. Bow-yer, 40 N. Y. R. 456; Bank v. Caverlv, 7 Gray 217; Dwight v. Pease, 8 McLean 94; Coggill v. Am. Exchange Bank, 1 Comstock 113. Wilson was the only real payee and in-dorser. The record and pleadings should have been amended to allow a judgment against Wilson alone: Fritz v. Heyl, 8 W. N. C. 374; Patton v. P. C. & St. L. Railway Co., 15 Nor. 169; Bolton v. King, 9 Out. 78.</p> <p>Foster was the plaintiff in the action, and he and Arnold were members of the joint stock company or firm for the use and benefit of which this action was brought. Karns v. Tanner decided that the Act of 1869 was intended to reach, not simply cases where there was a literal assignment made by an assignor, but all cases, “ where one of two parties to a transaction is dead, the survivor and party representing the deceased party, stand on an unequal footing as to a knowledge of the transaction occurring in the lifetime of the deceased. The enacting clause had opened the lips of all parties, but when death came it closed the lips of one, and evenhanded justice requires the mouths of both to be sealed.” By the plaintiff’s own evidence Weller was the party who procured the discount of the note in suit and received the proceeds of the discount. The defendants were not present, and did not take any part in the transaction. The plaintiff and the parties interested in a recovery in such a case, are ‘hot competent witnesses against the estate of a deceased maker: Craig-head v. McLoney, 99 Pa. St. 211. The cases cited to sustain the sixth assignment are not in point. The words “fifteen hundred,” to which Poster’s attention was called, were admittedly written prior to Weller’s death and by Weller himself. Both of the cases cited refer to acts done after the death of the party. As to the third and fifth assignments, Myers and Pollock were not asked to state facts. They were asked if there was anything of a suspicious character on the face of the note that would cause them or a banker to distrust it. What they as bankers would do was immaterial. It was competent for them to give their opinion as to what the facts actually were, so far as their superior skill as experts enabled them to do; the opinion should be conclusions from particular facts: Wharton’s Evidence, § 440, &c.</p> <p>The facts relative to the point raised by the fourth assignment do not bring it within the rule of the eases cited. The note Myers was asked to compare with the note in suit and the $5,000 note was Exhibit “D.” admitted not to be the handwriting of Collner. The evidence was entirely competent: Bailen tine v. White, 77 Pa. St. 20; Reese v. Reese, 90 Pa. St. 89. Myers was not an expert as to Collner’s signature because he had a knowledge of his handwriting: Travis v. Brown, 7 Wright 9. Where joint payees hold' a note they must jointly indorse to transfer title; and it is immaterial which name is first indorsed on the paper: Lane v. Stacy, 8 Allen 41. Joint debtors must be jointly sued and a joint liability-established : Robertsons. Smith et al., 18 Johnson’s R. 479 and 481. A material alteration in a note after the indorsement will discharge the maker and the indorser: Hepler v. The Mount Carmel Savings Bank, 1 Out. 420; Mc-Sparran, Adm’r v. Neeley, 91 P. S. R. (10 Norris) 25; Neff v. Horner, 68 P. S. R. (13 P. P. S.) 830; Brown v. Reed, 78 P. S. R. (29 P. P. S.) 370. In form the contract was between plaintiff and defendants, and he was clearly bound to know both signatures of the indorsements were genuine.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: Of October Term, 1884, No. 146.</p> <p>Debt, by J. M. Gilson et al., Auditors of Derry township, for the use of said township against Jacob Short, John Short and John A. Bridge, on a Supervisor’s bond given by Jacob Short, on which the other defendants were sureties.</p> <p>On the trial, before HuNter, P. J., the following facts appeared : Jacob Short was Supervisor of Derry township for the years ending in the spring of 1879 and 1880. On April 26th, 1879, the Auditors of the township met and settled his accounts for the first year, showing a balance clue by him to the township of $294.59. On April 19th, 1880, they met and settled his accounts for the second year, carrying forward in this report the $294.59, “amount due on settlement of ’79.” At the second settlement the Auditors found a balance due the township by Short of $274.01; and to recover that amount this suit was brought.</p> <p>The defendant Jacob Short contended that the Auditors made errors in auditing his accounts; and that in the township Auditor’s book, immediately after the statement showing a balance of $274.01 due .by him to the township, appeared an entry made by one of the Auditors in lead pencil as follows : “Error on settlement of 1879, $151.62;” that this correction was made before the Auditors’ statement was published, and the credit of $151.62 was allowed him in their published statement. Further, that being still dissatisfied with the Auditors’ report, Short applied to them to re-examine his accounts which they agreed to do, but failed to meet for the purpose until 1882, when two of the Auditors for 1879 and 1880 did meet, and found that Short was entitled to further credits for taxes, work and money expended, amounting to $100.39, leaving his debt to the township only $22. Two of the Auditors for 1882 (one of whom was also an Auditor in 1879 and 1880), approved of this statement.</p> <p>Joseph Guthrie, a witness called by the plaintiff, testified in his examination in chief, “ that he was one of the Auditors of Derry township for the years 1878, 1879, and ending in 1880; that he was present at the meeting of the Board of Auditors in-, 1880 ; that the account of defendant Short, as one of the Supervisors of said township, was presented, examined and settled ; that a certain book, purporting to contain said settlement, was the book of the township, in which accounts of the Supervisors were kept.” Defendant then proposed to ask the witness in cross examination: “How and from whom the items contained in the alleged settlement were obtained; whether defendant presented the book he was required to keep by law, and from which the settlement should be made; and if so, whether certain credits, as they now appear in the back part of the book, were seen, examined or considered in the settlement; whether the Auditors, as required by law, published a statement of said account; and if so, what that published statement showed, for the purpose of eliciting information as to questions on which the witness was examined in chief.”</p> <p>To this offer the plaintiffs objected, on the ground that the evidence thus sought to be elicited was immaterial, inasmuch as the settlement as made by the Auditors was now final and conclusive.</p> <p>Objection sustained and evidence rejected. Exception.</p> <p>The court charged as follows :—</p> <p>“ This is an action brought upon a Supervisor’s bond. It appears by the evidence that Jacob Short was a Supervisor in Derry township in the years 1879 and 1880. For those years he executed bonds. Upon his bond for the last year this action is brought to recover from the Supervisor a balance in his builds as shown by the Auditors’ report. It appears that the Auditors passed upon the accounts of the Supervisor and carried the balance for one year over to his accounts for the last year. In the Auditors’ report for the last year they found that there was a balance of $274.01 in Mr. Short’s bands. [This finding of the township Auditors is an adjudication of the balance in his hands, and, for the purpose of this action, is conclusive upon him]. The law provides that a person must appeal from the finding of the Auditors within a certain time, and if he does not do so he cannot in any other proceeding question the correctness of their finding. It has incidentally leaked out during the trial that there was an error In the first year in footing up the duplicates. That was a year before tbis final audit. We cannot now open up this audit, and especially tbe audit of the former year, and question what has been done, in this action. As we have said, if the Supervisor was not satisfied with the result, his remedy was by appeal to the court, in which case the court would have placed the matter in such shape as that it could have been examined and correctly adjusted. But now, this Auditors’ report for the last year, footing up this balance, as shown by their books, is conclusive upon tlie defendant, and, there being no other evidence, yon must find for the plaintiff this amount, to which, of course, you will add interest. This suit having been brought upon an official bond, your verdict should be for the full amount of the penalty in the bond, but you will assess as damages only the amount actually due by the defendant to the township, as shown by the Auditors’ report.”</p> <p>Verdict for the plaintiffs and judgment thereon; whereupon the defendants took this writ, assigning for error the refusal of the court to admit their evidence, and that part of the general charge included in brackets.</p> <p>In all the cases cited by the defendants in error, new burdens were sought to be thrown on the municipalities by tbe allowance of claims which bad formerly been disallowed. In no case has it been held that the mere correction of a palpable mistake in the addition of figures, or in the overlooking of certain items of credit, could not be corrected by the proper auditing officers of a township.</p> <p>Tbe court was in error in instructing the jury that tbe first statement of Auditors was final and conclusive, in the face of the correction made before publication, apparent in the township book. Was it not a pure question of fact for tlie jury to determine as to which one, if either, of these appearing settlements was the true and correct one ?</p> <p>The method of accounting by township officers is fixed by the Act of 1834. Section 104 provides that the township or officer accounting may appeal from the settlement made by the Auditors within thirty days after such settlement. If the accounting officer feels aggrieved by such settlement, the Act of Assembly providing for appeal is his only remedy. It affords a complete remedy. No other remedy can be adopted. That the settlement is conclusive has been held by this court in many cases: Leasure v. Mahoning Township, 8 Watts 551; Brown v. White Deer Township, 3 Casey 109; Porter v. School Directors, 6 Harris 144; Dyer v. Covington Township, 4 Casey 186 ; Blackmore v. Allegheny county, 1 P„ F. S. 160; Glatfelter v. Commonwealth, 24 P. F. S. 74; Siggins v. Commonwealth, 4 Norris 278. To allow the evidence proposed by the defendant in his first three points to go to the jury would be to substantially re-open the accounts for 1879 and 1880, which this court has said could not be done : Leasure v. Mahoning Township, supra.</p>

<p>1. A., a railroad company, executed a mortgage, which was the first lien, upon its property and franchises. Subsequently it entered upon and appropriated B.’s land without paying him therefor or giving him security for such compensation. B. recovered a judgment for damages against the railroad company, which the company failed to satisfy. The company became insolvent, its property and franchises were sold by the Receiver under a decree of foreclosure on said first mortgage to 0.,'who subsequently conveyed Ms purchase to D., also a railroad corporation.</p> <p>In an action of scire facias by B. against A., with notice to C. and IX,</p> <p>Held, that B.’s interest in the land so taken being an estate and not a lien, it was not divested by the judicial sale under tlie first mortgage; that therefore B. was entitled to recover from 1). the amount of ills judgment, which was the price of his land.</p> <p>2. Western Pennsylvania Railroad Company v. Johnston, 9 P. P. S. 290, followed; Pries v. R. R. Co., 4 Norris 73, distinguished.</p>

<p>Error to the Court of Common Pleas of Armstrong county: Of October and November Term, 1884, No. 53.</p> <p>Ejectment, by Joseph W. Halderman against James S. Young, to recover a certain tract of land in Armstrong county. Plea, not guilty.</p> <p>On the trial, before Neale, P. J., the following facts appeared: By proceedings under the Act of April 20th, 1869 (P. L. 78), Joseph W. Halderman was found to be insane, and Conrad Snyder was appointed committee of his person and of his estate. Conrad Snyder thereupon gave security, and filed an appraisement of flalderman’s personal property. Subsequently the said committee filed a petition in the Court of Common Pleas of Armstrong county, praying for an order to sell the tract of real estate belonging to Halderman, which is the subject of the present controversy. The court made the order as prayed for, whereupon Snyder sold the land in question to James S. Young, and this sale was confirmed bjr the said court. Halderman, who claimed to be sane, thereupon took a rule to show cause why the appointment of Conrad Snyder as committee of his estate should not be revoked, and all proceedings thereunder set aside, on the ground that the Act of April 20th, 1869, did not authorize the appointment of Halderman as committee of his estate. On discharge of this rule an appeal was taken by Halderman to the Supreme Court, which sustained his contention, revoked the decree appointing Snyder as committee of Halderman’s estate, and remitted the record for further .proceedings: See Hal-derman’s Appeal, 8 Out. 251.</p> <p>On refusal of Young to deliver possession of the tract in controversy, Halderman brought this ejectment.</p> <p>The court instructed the jury to render a verdict for the plaintiff, reserving the question, “ whether, under the whole law in the case, the plaintiff is entitled to recover.” Verdict for the plaintiff accordingly. Subsequently, the court, on motion of the defendant, eutered judgment in favor of tbe defendant non obstante veredicto on the ground that however invalid the appointment of Snyder might be, his sale of the property to Y oung was validated by the Act of April 28th, 1876 (P. L. 50.)</p> <p>Halderman thereupon took this writ of error, assigning as error the entry of judgment for the defendant.</p> <p>The Act of 1876 was not designed to cure a total' want of jurisdiction but only such irregularities as might happen in the appointment, etc., of a trustee or committee by a court having jurisdiction of the subject matter.</p> <p>The title of the Act of 1876 uses the words “improperly appointed.” The Act itself adds the word defect, showing clearly that every phase of a voidable judgment or appointment was intended to be guarded against'by providing that such defects should not affect the title of the purchaser. It will be conceded that Conrad Snyder was a trustee and stood in the fiduciary relation to the lunatic, and that his bond was abundantly good. It would seem, therefore, that this Act of Assembly was intended to meet just such a case as the present, and to secure purchasers against the errors of court or counsel. Under a similar Act of Assembly, 1705, Brightly’s Digest 651, the title of the purchaser is protected even in cases of the reversal of a judgment under which the sale took place, “ for any error or errors,” and it has been held under that Act, that the purchaser is protected, if a stranger to the judgment or proceeding, even whore the sale occurred upon a judgment fraudulent and collusive, and which was afterwards set aside upon a feigned issue : Martin v. Gernandt, 7 Harris 124. -</p>

<p>Appeal from a decree of the Court of Common Pleas of Lawrence county: Of October and November Term, 1884. No. 83.</p> <p>This was an appeal by George W. Hartman, trustee of Carrie T. Reis, from a decree of the said court sustaining the exceptions of certain labor claimants to the report of an Auditor, appointed to make distribution of a certain fund arising from a judicial sale of personal property belonging to William E. Reis, and awarding to said labor claimants the fund for distribution as preferred creditors under the Act of April 9th, 1872, § 3, P. L. 47.</p> <p>The facts were as follows: William E. Reis was a member of the firm of Reis Bros., which was engaged in the manufacture of plate and sheet iron. In 1883, at a time when he individually and the firm of Reis Bros, were both notoriously insolvent, he gave his individual judgment note to Geo. W. Hartman, as trustee of Carrie T. Reis in payment of a private individual debt, upon which note judgment was entered up, and a fi. fa. issued in November, 1883. Under this writ certain personal property of William E. Reis consisting of household goods used in his private residence and in no way connected with or used in the business of Reis Bros., were sold by the sheriff, and the proceeds constitute the fund for distribution. This fund was claimed on the one hand by the plaintiff in the execution and on the other hand by certain employees of the firm of Reis Bros., who contended before the Auditor that their wages for labor done in and about the business of Reis Bros, for six months poreceding the insolvency and sale of the said personal property of William E. Reis constituted a lien on said property under the Act of April 9th, 1872, § 3, and should be first paid out of its proceeds.</p> <p>The Auditor reported that the lien of the labor claimants upon the property of the firm of Reis Brothers did not extend to the personal property of an individual member thereof, and he accordingly awarded the fund for distribution to George W. Hartman, as trustee of Carrie Reis.</p> <p>Exceptions filed to this report by the labor claimants were sustained by the court in the following opinion :</p> <p>“ The first section of the Act of April 9th, 1872, limits the lien of labor claims to six months immediately preceding the sale, by execution or otherwise, of the mine, manufactory, &c., and confines the lien to the mine, manufactory or business, or other property connected therewith in carrying on said business, to the time preceding the death or insolvency of the employer or employers. Nothing is said in this first section what limit shall be to the extent of the lien at or after the death or insolvency of the employer or employers of the labor. Preceding the death or insolvency .of the employer or employers, the lien for labor is confined to the works, manu-factories or business, or other property connected therewith in carrying on said business. But for the state of the case in regard to lien after death or insolvency of the employer or employers, we must look to the third section of the Act, which says that in all cases of death, insolvency or assignment of any person or persons, or chartered company engaged in operations as herein or heretofore mentioned, or of executions issued against them, the lien of preference mentioned in the first section of this Act, with like limitations and power, shall extend to every property of said persons or chartered company. The first section shows to what property the lien of labor claims shall be confined preceding the death or insolvency of the employer; the third section shows that at death or insolvency of the employer the lien is extended to his ‘ every property.’ By this construction of the Act the exceptions to the Auditor’s report are sustained, and the fund for distribution is ordered to be applied to the labor claims found by the Auditor to be legal and just.”</p> <p>Hartman thereupon took this appeal, assigning as error the said action and decree of the court.</p> <p>The lien given by the Act of 1872 is against common right and in derogation of the common law, and as such must bo strictly construed : Esterley’s Appeal, 54 Pa. St. 192 : Dame’s Appeal, G2 Id. 417. Thus construed and interpreting its sections as in pari mate-ria, it would seem clear that the Act of 1872 confined its lieu for wages to “the said mine, manufactory, business, or other-property in and about, or used in carrying on the said business, or in connection therewith.” The first section is very explicit, and in exact language so confines the lieu. The second section prescribes the uotice required to be given to the sheriff, in cases of executions and writs of a similar nature, and directs the. officer to pay to “ such miners, &c.,” the amount each is justly and legally entitled to receive. The third section cannot be construed to extend the lien to all property of defendant, irrespective of its relation to or connection with the business. The decision, however, of the court below is rested exclusively on this section ; and the decision involves the position that the effect of the third section is to enlarge the lien given in the first, so as to cover all the property of defendants, real and personal, without reference to the connection it bears to the business. But the fourth section provides, as to mortgages: that “ no mortgage shall operate to impair or postpone the lien and preference secured to the wages and moneys mentioned in the first section of this Act,” which clearly implies that the lien is entirely by the first section. Besides, the proviso to the first section requires claimants to file their claims “in the same manner as mechanic’s liens are now filed.” That is, specially against property whereon the work was done, while if the whole Act intended to give liens on all property of the defendant, as in the ease of a judgment, it would not require filing, as in the case of a mechanic’s lien. The construction given by the learned court to the Act of 1872 would seem to lead to absurd and unjust conclusions. Where, for instance, a person owned several distinct manufactories, in case of bis death or insolvency all the employees in the different manufactories would have a lien on the whole property instead of on that manufactory alone in which they were employed. Again, if all the property of a defendant is bound for the wages of a class of servants, why exclude other classes ? Why admit the lien of those workmen at the mill on Wm. E. Reis’s household goods and exclude that of all his laborers, employed about a business that had no “fixed and permanent character,” as was the case in Pardee’s Appeal, 4 Out. 408 ? Suppose Wm. E. Reis resided in a rented house, then the effect of the construction complained of would be to give all the operatives in the mill for six months’ wages a lien on the goods in the dwelling in preference to the warrant of the landlord for his rent. In Jacobs v. Woods, 14 W. N. C. 237, Judge Baknett held, in Perry county, that neither under the Act of 1872 nor of 1883, had a hired man on a farm any lien on the goods on the farm sold on execution. Yet, if the decree below is sound, while a farmer’s hand would have no lien, the hands at a mill or mine in which he happened to be a partner would have a lien on the stock, etc., on the farm.</p> <p>The opinion of the learned Judge below seems- to proceed on a false assumption. He assumes that the first section gives a lien of six months’ duration preceding the death, execution, etc., and confines this lien to the goods in and about the business; but the lien given by the third section is intended to be the lien arising upon or after sale, death, etc., and this is intended to be extended to all property of a defendant. The truth is that the Act gives no lien whatever until the time of execution, death, assignment, etc. The six months mentioned is the duration of the time within which the wages claimed must have been earned, and not that within which the lien has been continuing. The section is very explicit: “All moneys that may be due” “for labor” “rendered,” “ by,” etc., “ for any period not exceeding six months immediately preceding,” etc. Thus the six months expressly refers to the time within which the labor must be performed, and not that during which the lien has continued. The premise of the learned Judge failing, his conclusion has nothing to sustain it and must likewise fail. Up to the time of execution, etc., there is no lien on the goods, but the proprietor is perfectly free to dispose of the same. If there had been a continuing lien, it is difficult to perceive why it would not follow the goods to another place, and after the business was finished; this was negatived in Pardee’s Appeal, supra. Besides, the lien given by the third section is the same lien given by the first; expressly “ the lien mentioned in the first section.”</p> <p>While this is a ease of first impression, and has never been directly decided by this court, yet there are several decisions under the Act of 1872, the reasoning of which is inconsistent with the position taken by the learned court below. Thus, in Ward’s Appeal, 32 P. F. S. 270, execution was issued against King for his individual debt, and his interest in the partnership of King & Morris levied on and sold; laborers of King & Morris had no lien. It is difficult to see how, if all King’s individual property was liable, this decision can be sustained. In Allison v. Johnston, 11 Norris 314, this court held the notice insufficient, for the reason, among others, that the notice did not indicate that the goods and chattels seized and sold were “property in and about, and used in carrying on the business, or in connection therewith.” If the lien, after execution, extended, under the third section, to all property, certainly the notices need not contain such indication. In Jones’s Appeal, 1 Chester Co. Rep. 582, this court held that, after receivership, the wages claim did not extend to a chose in action. The lien was expressly confined to that set forth in the first section of the Act of 1872: See also Pardee’s Appeal, supra; and Pepper’s Appeal, 2 Penny-packer 113.</p> <p>In passing the Act of 1872, the legislature realized that the manufacturing and mining interests of the state were carried on almost exclusively by partnerships. The property, in cases of insolvency, in and about the mine or manufactory, is usually insufficient to pay the claims of the laborers, as in this case. It consists of cars, tools, machinery, &c., which is not generally increased; while the individual property of the members of the firm is being constantly added to. For the purpose of preventing the operation of the rule in cases of the “insolvency” of a partnership, upon the claims of their laborer,?, tlie third section provides that in case of “insolvency ” the lien of the laborer shall extend, to every property of the employer or employers. Statutes are to be construed so as best to effectuate the intention of the makers: Commonwealth. v. Fraim, 16 Pa. St. 163, and this statute, which is not penal but remedial, should be liberally construed in advancement of the remedy contemplated by the legislature : Dame’s Appeal, 62 Pa. St. 417. Thus construed, it would seem clear that the first section of the Act of 1872 protects the laborer in case of a sale and transfer of the particular business, manu-factory, &c., in which lie is engaged, and the property in and about the same, or used in connection therewith, by giving liim a lien on that particular property above all other creditors. The third section protects him, in case of death, insolvency, or assignment, whether there is a sale and transfer or not, and in ease of executions issued, by giving him a lieu for his wages, not only on the particular property in and about the business, áse., but on every property of his employer. The “ execution ” of the first section is the “execution'’ directed against the particular business, áse., and by virtue of which the same is sold and transferred; while the “execution” of the third section is a general execution directed against all the defendant’s property, whether in and about his business or not. This construction of the Act seems to reach its true meaning and spirit; its evident intention was to give to the wages of labor a preference over all other claims.</p> <p>If the argument of the learned counsel for the execution creditor be correct, the firm of Reis Brothers might have taken all the money arising from the sale of the products of the mill, invested it in costly furniture or other private property, and thus exempt the fruits of their laborers from the lien of the Act of 1872. The very debt that the legislature intended to prefer would in this way be defeated, and the product of the laborer would be applied to the payment of other debts, which the Act of 1872 intended to postpone to his claim. Thus the whole end and spirit of this beneficent statute would be defeated.</p> <p>The cases cited by counsel for the appellant involved merely the construction of the first section of the Act of 1872, except Jones’s Appeal, 1 Ches. Co. Rep. 582 (s. c., Pitts. Leg. Jour; of May 9, 1883, p. 875), which is directly in our favor.</p>

<p>1. A certificate of deposit payable to tlie order of the depositor, on return, of the certificate, is not due until demand made, and until then the Statute of Limitations does not begin to run thereon.</p> <p>2. A demand of payment on such an instrument may be made after the expiration of six years from its date. Finkbone’s Appeal, 5 Norris 368, approved.</p> <p>3. A firm of bankers, doing business as the P. Savings Bank, issued a certificate of deposit joayable to the order of the depositor, on return of the certificate. Within a year afterwards the P. Savings Bank was incorporated and the said firm transferred all their business to the corporation. Subsequently the holder of the certificate presented the same at the bank and demanded payment from the members of the old firm. Payment being refused, suit was brought against said co-partners “lately doing business as the P. Savings Bank.” The defendants filed affidavits of defence denying that “ any proper or lawful demand” had been made, or that any demand had been made on the day it was averred “in any way binding upon said firm.” Upon a rule for judgment for want of a sufficient affidavit of defence:</p> <p>Held, that the court below properly awarded judgment for plaintiff, the above averments of the affidavits being insufficient.</p>

178. Case stated, in which John Wagner was plaintiff and D. A. Luther, sheriff of said county was defendant. The facts agreed upon by counsel were as follows: “ On October 1st, 1888, the ‘ Krise Place ’ was sold by the sheriff, as the property of John Wagner, to F. A. Shoemaker for $370. The property was bound by a recognizance in the Orphans’ Court for about $1,470, the annual interest on which, to wit: $87.88, was payable to Margaret Krise, widow of Henry Krise.

<p>. 1. Under the provisions of the Act of March 20th, 1810, sec. 20 (5 Sm. L. 171), the judgment of the Court of Common Pleas upon a certiorari to remove the proceedings before a justice of the peace, is final, not only as regards affirmance or reversal of the justice’s judgment, but also as regards the subsequent allowance of a writ of execution for costs accrued on the certiorari.</p> <p>2. A writ of error from the Supreme Court will not lie to review the action of the Common Pleas in permitting execution to issue for costs, on the reversal on certiorari of a justice’s judgment, and such writ, if improvidently issued, will be quashed.</p> <p>3. Silvergood v. Storriek, 1 Watts 532, followed.</p>

196. This was an action of replevin by J. L. Meldren, Sr., administrator of J. L. Meldren, Jr., deceased, against G. M. Smith,Albert Smith, Jeremiah Smith and G. M. Smith & Son, to recover certain chattels in the possession of Jeremiah Smith, consisting of the fixtures and machinery of an oil well.

<p>1. Upon an unconditional contract to pay a certain sum of money on demand a right of action accrues immediately, and the Statute of Limitations commences to run from the date of such contract. But whore the contract is to pay upon the future performance of a condition or the happening of a contingency, no right of action accrues, nor does the Statute commence to run until the performance of the condition or the happening of such contingency.</p> <p>2. Where, therefore, a member of a mutual insurance company contracts to pay the company his share of its losses and expenses occurring during the period of his membership, the amounts of such payments to be ascertained by one or more assessments to be levied by the directors of the company, no right of action accrues on such contract, nor docs the Statute of Limitations commence to run thereupon until the assessments have been levied by the directors.</p> <p>3. In such case, an action can be brought by the company upon such contract at any time within six years after the imposition of the assessment, even though such assessment be not levied until more than six years after the member’s policy expired and his membership ceased.</p> <p>4. iti January, 1873, A. became a member oí a mutual fire insurance company. In January, 1875, by the expiration of Us policy, his membership therein ceased. By the company’s charter and by-laws, members sustaining a loss were required to give notice to the company forthwith, and the company was compelled to pay the loss within 90 days thereafter, and if not paid within three months thereafter, an action could be brought for its recovery. A. paid no premium for his policy, but agreed “ to pay for all losses or damages ”.in proportion to the amount of his policy “ annually, or as often as the directors may make assessments.” A. paid three assessments, which the directors made in 1875, 1876, and 1880. In March, 1884, the company levied another assessment upon A. to pay for losses which had occurred during the term of his membership, which assessment A. refused to pay, claiming that under the Statute of Limitations he was not liable for any assessment made more than six years after the expiration of his policy'. In an action by the insurance company against A. to recover the amount of said assessment:</p> <p>Held, that the Statute of Limitations did not commence to run until the date of the assessment, and that, therefore, the plaintiff was entitled to recover.</p>

<p>1. Where an objection made to the admission of depositions is valid as to part of such depositions only, and instead of being restricted to such jiart it is aimed at the whole deposition, the objection will not be sustained so as to exclude the entire deposition.</p> <p>2. Tn a scire facias on a sheriff’s recognizance, brought against the sheriff’ and Ms sureties, by an execution creditor whose fi. fa. the sheriff had returned nulla bona, — the sheriff claimed title to the property, while the plaintiff claimed that it was in the defendant in the execution when the writ was issued. The latter having- died,</p> <p>Held, that the sheriff could not testily to transactions, relating to the property in question, occurring between him and the decedent during the lifetime of the latter and prior to the death of one of the sureties on the sheriff’s recognizance whose administrator was a party defendant to the record.</p> <p>Held, further, that the defendant in the execution was, in a certain sense, an assignor, and the plaintiff in said execution an assignee of the property in dispute, so as to bring tlie witness within the spirit, if not within the letter-of the proviso of the Act of I860, forbidding parties to testify, where “ the assignor of the thing or contract in action may be dead.”</p> <p>3. A witness was offered on behalf of the sheriff to testify that he, the witness, took possession of the property in dispute, when it was given up by the defendant in execution, and that he paid the sheriff for it — • this to show title to the property in the sheriff at that time.</p> <p>Held, that the testimony was properly rejected, as not competent to show title in the sheriff while the defendant in execution was in possession.</p> <p>4. The court below committed no error in refusing to charge that it was the duty of the plaintiff in the execution to find out whether the sheriff had any interest in the property to he levied on, and if he had, to cause the fi. fa. to be directed to the coroner.</p> <p>5. The defendants asked the court to charge that if the jury believed the property in the possession of the defendant in the execution was the sheriff’s, or that the latter’s claim thereto was bona fide, he and his sureties were not liable on his official bond.</p> <p>Held, that in view of the evidence,- the affirmance of this point was properly qualified, by instructing the jury that, the sheriff’s bona fida claim must be by reason of a sale to him and not a mere pledge.</p> <p>6. In the absence of evidence to show that tire sheriff made diligent inquiry, the court properly refused to chai-ge that a writ of fi. fa. is not for the purpose of being held by the sheriff but must be executed as soon as possible, and if he has made diligent inquiry and can find no property he may return the writ before the return day without becoming-liable on his official bond, although the defendant after the return and before the return day, may acquire property.</p> <p>7. If a sheriff has any reason for not executing a writ of fi. fa. delivered to him, he should make known such reason when he receives the writ and before the rights of any one can be affected by his refusal to execute it.</p>

Appeals from the Court of Common Pleas of Armstrong county: Of October Term, 1884, Nos. 154 and 155. These were, in the court below, petitions by Michael Kunkle to open judgments entered on two judgment notes, and let the defendant in to a defence.

116. Scire facias brought by P. A. Templeton and J. Y. Foster against A. T. Spenee, Daniel M. Shakley and H. P. Shakley. The scire facias was in form to revive a judgment and continue the lien, but it was treated throughout the trial as a sci. fa. to liquidate damages arising from a breach in the conditions of a bond.

32. Appeal of David S. Baker from a decree of said court, reversing the decree of the Begister of Wills admitting to probate a certain testamentary instrument as the last will and testament of George… Held: that under the statute of New York, which is substantially the same as ours, the will was sufficiently executed.

<p>1. Signing by the grantor is essential to the validity of a deed conveying real estate: McDill v. MeDill, 1 Dallas 63, followed.</p> <p>2. Under the Act of February 24th, 1770 (P. L. 376), providing the mode in which the separate real estate of a married woman may bo convoyed, both husband and wife must sign as well as seal, acknowledge, and deliver the deed. Said Act is not repealed or modified in this respect by the Act of April 11th, 1848.</p> <p>3. A deed purporting to convey real estate of a married woman, wherein she and her husband were'named as grantors, was prepared by the scrivener with scroll seals, and with a form of acknowledgment by husband and wife. The wife signed it, opposite one of the seals, but the husband omitted to do so. Both husband and wife acknowledged the deed, and it was duly delivered:</p> <p>field, that the deed passed no title to the grantee.</p>

<p>Appeal from the Orphans’ Court of Washington county: Of October Term, 1884, No. 67.</p> <p>Appeal from a decree of said court reversing the report of an Auditor appointed to make distribution of the fund in the hands of N. Bearly, executor,, under the last will and testament of John Patterson, deceased.</p> <p>John Patterson, a farmer of Washington county, died testate, in 1861, leaving to survive him a widow, Jemima Patterson, his second wife, and several sons and daughters, children of his first wife. The said Jemima Patterson was a widow with two children when he married her, one of whom afterwards died, and the other, Mrs. Martha Mounts,, survived both John Patterson and her mother.</p> <p>■ By his will, the decedent, after leaving his wife a house and certain personal property, provided as follows: “Also I will that my farm be rented at public outcry and the proceeds thereof be applied to the support of my beloved wife during her natural life, and the surplus rent, if any, be paid out as hereinafter directed.”</p> <p>The farm was afterwards sold by the executor under order of court, for the payment of decedent’s debts, and the balance of the money received therefor, after payment of said debts, amounting to $1,799.79. was placed at interest. In 1866, the widow went to live with her daughter, Martha Mounts, and remained there until August, 1881, when she died, leaving a will whereby she bequeathed and devised her entire estate, after deducting funeral expenses, to her daughter.</p> <p>On March 10th, 1883, Mr. Bearly, as executor of John Patterson, filed his second and final account, showing a balance of $2,125.26 in his hands, and John Murdoch, Esquire, was appointed Auditor to report distribution. Before him Martha Mounts claimed, through her mother’s executor, the balance of unexpended interest on the $1,799.76, set apart for the support of the widow under the decedent’s will, the widow having used only a small part of said interest during her lifetime, and having left the remainder in the hands of the executor.</p> <p>Mrs. Mounts claimed, first, on the ground that the will of John Patterson gave this income to his widow absolutely and it became part of her estate and passed, therefore, under her will to her daughter; second — on the ground that the widow made an express contract with claimant, for support, agreeing that at her death all of said income should go to claimant for such support. The fund was also claimed by the representatives of John Patterson as part of his estate.</p> <p>Mr. Bearly, the executor, testified before the Auditor as follows: “ The widow, after death of her husband and after the lapse of some time, didn’t lift near the amount of interest that was coming to her, alleging that there was an arrangement between her and her daughter, some way, by which she was to be cared for, and she drew what was necessary for her support, and what was left, after her death, was to go to her daughter in consideration of her support. I wanted her to lift interest and give it to' her daughter or do what she pleased with it. She replied that if she gave it to her daughter, the daughter might die before her and leave her without support, and if she took it herself she might lose it. The interest was ready for her, whenever she wanted it. After her husband’s death she lived with he’r daughter, Martha Mounts. They lived together before the daughter’s marriage. She lived with her up to time of her death. I had conversation with her just shortly before her death, and I wanted her to take the interest; she refused, and wanted me to attend to the funeral expenses and doctor’s bill, and pay residue to her daughter. She spoke of Dr. Kelly’s bill in particular. I had wanted her to take money and pay it, but she wouldn’t do that; she told me to pay this bill out of money coming to her out of estate of her husband.”</p> <p>The Auditor reported that “As to the first ground it is sufficient to say that, as we understand the intention of the testator, the income could not go into the widow’s estate, but remained part of the estate of the testator until actually severed and applied to her support.” He however allowed Mrs. Mounts’ claim on the second ground, finding from the evidence an express.agreement between the parties, by which Mrs. Mounts was to support her mother during the latter’s life, and at her death to receive the balance of interest contended for. The Auditor accordingly awarded said balance to Mrs. Mounts.</p> <p>Exceptions filed to this report by the representatives of John Patterson' were sustained by the court, on the ground that no express contract was proved by the evidence, Habt, P. J., delivering the opinion, and a decree was entered awarding the fund in dispute to the exceptants: whereupon Martha Mounts took this appeal, assigning for error the decree of the court.</p> <p>The vital question in the case is not so much whether there was an express contract between Mrs. Patterson and Mrs. Mounts for the former’s support, but whether there was an appropriation by Mrs. Patterson of the interest in the hands of the executor. That there was such an appropriation clearly appears from the evidence.</p>

108. The facts set forth in the petition of Henry Leibold, and not disputed, were as follows: In October, 1888, Henry Lei-bold, a livery stable keeper of the borough of Butler, hired a horse, owned by him, to James C. Hughes. Hughes drove the horse to Kittanning, there traded him for another, sold the one for which he had traded, and squandered the proceeds.

<p>Error to the Court of Common Pleas of Indiana county: Of October Term, 1884, No. 147.</p> <p>Ejectment, by Mary Criswell and four others, against Emanuel H. Grumbling and ten others, to recover two adjoining tracts of land in Green township, Indiana county.</p> <p>At the trial, before Blatr, P. J., the evidence on behalf of plaintiffs showed the following facts :■—</p> <p>In 1887 the title to the land in dispute was vested in Robert Evans. The premises were occupied by Evans and his daughter Ann, with her husband, Howell H. Jeffries, and their children. While so occupied, on September 27th, 1855, the following agreement was entered into between the parties:</p> <p>“.That said Robert Evans of first part agrees to give bis farm unto the said Howell II. Jeffries and Ann, bis wife, to farm during bis natural lifetime, for the consideration of keeping him comfortable in food and clothing and necessaries.</p> <p>“ Said Robert Evans further agrees that after his decease said Howell TI. Jeffries and Ann, his wife, shall have said farm for their use during their lifetime, and after their decease io go to their heirs after them forever, provided said Ann Jeffries will leave any children, otherwise the farm is to go to the nearest relations of said Robert Evans.Said Howell H. Jeffries and Ann, his wife, agree to fulfil the foregoing conditions, and also agree not to transfer or sell their right of aforementioned farm to any person whomsoever. For, be it understood, that said Robert Evans grants no power to sell or transfer the privilege of these presents to any other than the within named Howell H. Jeffries and Ann, his wife, for the performance of these presents.</p> <p>“ (Signed) Robert Evaks, Howell H. Jeffries, Akm J EFFRIES.”</p> <p>Robert Evans died in 1861, and his daughter Ann in April, 1869, leaving her husband and children (plaintiffs in this suit), to survive her.</p> <p>After the death of his wife Ann, to wit: oil September 8th, 1869, and again on April 11th, 1878, his second wife, Rachel, joining in the deed, Howell Jeffries conveyed said land to Emanuel A. Grumbling, one of the defendants, and Grumbling, by several deeds, conveyed to the other defendants.</p> <p>Plaintiffs contended that under the said agreement, which was recorded when Grumbling purchased, Howell Jeffries and Ann, his wife, had a life estate, which was to commence at the death of Robert Evans, and continue during the life of Jef-fries and his wife, and the survivor of them, with a vested remainder in fee in the children of Ann, which opened to let in children born after the execution of the agreement.</p> <p>That by the provisions of said agreement the sale of said life interest was prohibited. That the conveyances made by Howell Jeffries were in violation of such prohibition, and a breach of the condition annexed to his life estate, working a forfeiture thereof.</p> <p>Plaintiffs were heirs of Robert Evans, and therefore entitled to the remainder in fée under the agreement.</p> <p>Howell Jeffries was living when suit was brought.</p> <p>At the close of plaintiffs’ evidence the court granted a compulsory non-suit, which it subsequently refused to take off, Blair, J., delivering the opinion, which was, inter alia, as follows :</p> <p>“ The plaintiffs’ right to recover is based upon the position that, under the contract above mentioned, a life estate only was secured to Jeffries and his wife, and that this estate was forfeited when the surviving husband undertook to sell, and did sell and convey the land in dispute, in violation of that provision of the contract prohibiting alienation. It is plain, however, from the reading of this paper, that the prohibitory clause cannot have the effect attributed to it. What Robert Evans desired was to have a home with his daughter and son-in-law, and he therefore bargained with them that they should keep him comfortably during his life. It occurred to him that they might sell the land in his lifetime, or such interest in it as they might have, and thus turn him over to the keeping of strangers. He guarded himself against accident of this kind, because he wanted the personal service and attention of those with whom he was bargaining so long as he lived. This was the whole purpose of the provision, and it cannot, therefore, be rationally and fairly construed into an absolute prohibition against alienation after his death. This is sufficient to dispose of the case, for if we should concede (which we do not) that Jeffries and his wife took only a life estate, the fact that the husband is still living would prevent a recovery. So long as he lives his children can have no legal claim to the possession under the contract. When a tenant for life conveys a greater estate than he holds, the conveyance does not work a forfeiture, but is effectual to pass such estate as lie has.”</p> <p>Whereupon the plaintiffs took this writ of error, assigning fur error the entry of the non-suit and refusal to take it off.</p> <p>A condition may be annexed to a life ¡'state prohibiting alienation : Turner v. Fowler, 10 Watts 828. The violation of such condition works a forfeiture : Sheaffer v. Sheaffer, 87 Pa. St. 525 ; Hamilton v. Elliott. 5 S. & It. 875. The clause of this agreement forbidding alienation clearly referred to the estate of Jeffries and wife, after Evans’s death as well as before. Evans’s intention was not only to provide for himself but to make a permanent home for his grandchildren which could not be sold by their father. The conveyances by Jeffries being in violation of the condition against alienation, worked a forfeiture. It is evident from the context that the word “ heirs ” in the agreement was used by Evans in its popular sense of “ children.” An estate for life to A. and B., and after their decease to their children, gives only a life estate to the first takers, and a remainder in fee to the children : Gernet v. Lvnn, 81 Pa. St. 94 ; Miller v. Lynn, 7 Id. 443 ; Iluber’s Appeal, 80 Id. 848 ; Urioh v. Merkel, 81 Id. 832 ; Hileman v. Bouslaugh, 13 Id. 344, in which the word heirs is deemed a term of art which cannot be controlled by the context, was overruled in Huss v. Stephens, 51 Pa. St. 282.</p> <p>In order to sustain the plaintiffs’ position it must be conclusively shown that this clause in restraint of alienation referred to or had any effect upon the estate granted to Howell and Ann Jeffries, for otherwise the plaintiffs have no present right of possession and cannot therefore maintain ejectment: Tyler on Ejectment, page 76; Alden v. Grove, 18 Pa. St. 377 ; Cheney v. Cheney, 26 Vt. 606. The court below found that the restraint of alienation applied to the privilege granted to Jef-fries and his wife to farm the property during Evans’s lifetime, which is the most reasonable construction of the agreement. But even if it should be granted that the restraint refers to the estate, and that the estate is for life only, we still contend that the plaintiffs have no present right of action. “ A provision in a deed or a will that a life tenant shall not alienate or anticipate — that is, not that he and his assigns shall lose the estate upon alienation but that he shall be compelled to keep it, so that neither his grantees nor any third person can get hold of it or enjoy it — is void: Gray’s .Re-strainfcs on Alienation, page 86; Rochford' v. Hackman, 9 Hare 475 ; Brandon v. Robinson, 18 Vesey 429 ; McCleary v. Ellis, 54 Iowa 811; Bridge v. Ward, 35 Wis. 687 ; 2 Redfield on Wills 289.</p> <p>In a deed the word heirs has but one meaning; it is a term of art, and cannot be controlled by the context: Hileman v. Bonslaugh, 1 Harris 344; Auman v. Auman, 9 -Id. 343 ; Ell-maker v. Ellmaker, 4 Watts 89. The word “ children ” in the clause “provided said Ann Jeffries will leave any children,” if it has any meaning, is used in the sense of “ issue.” Haldeman v. Haldeman, 4 Wr. 29 ; Voller v. Carter, 4 Ellis & Bl. 173 ; Broadhurst v. Morris, 2 B. & Ad. 1; Jones v. Davies, 4 Id. 43.</p>

<p>1. As a general rule, a sale of personal property is not valid as against the creditors of the vendor, unless possession be delivered by the vendor in accordance with the sale. In determining the kind of possession necessary to be given, regard must be had not only to the character of the property but also to the nature of the transaction, the position of the parties, and the intended use of the property. No such change of possession as will defeat the fair and honest object of the parties is required.</p> <p>Crawford v. Davis, 3 Out. 576, followed.</p> <p>2. An insolvent father sold his daughter a mare for a valuable consideration, which was promptly paid. The father and daughter lived together on a farm, and the mare was kept at the time of the purchase with the father’s other live stock. No formal transfer of possession ever took place. The mare remained upon the farm, and was kept and used as before by the father and daughter and other members of the family. The evidence as to the extent of the change of possession was conflicting. Some witnesses testified that the daughter used and treated the mare as her own property after the purchase, and that her father and brothers admitted that the mare was her property. It was testified on the other hand that after the sale the father used the mare as before, as one witness said, “most all the time;” that on one occasion he claimed to own her and offered to sell her as his property, and that the blacksmith’s bill for shoeing her was charged to his account., About a year after the sale, the father and daughter moved to another farm and took with them the mare which was used and kept as before. Some months later, the father and daughter separated,,the daughter moving to another farm and taking the mare with her. The father continued, however, to occasionally use the mare, and while in his possession, the mare was levied upon by one of his judgment creditors and sold as Ms properly.</p> <p>Ilian action of trespass by the daughter against the judgment creditor and the constable, the court submitted the question of ownership to the jury as one of fact, and charged that if the daughter used, treated and claimed the mare as her own after the sale, and took it with her after her separation from her father, such possession would give her a valid title to the mare as against her father’s creditors, and this notwithstanding the fact that the father borrowed the mare from her and used it occasionally.</p> <p>Held, not to be error, and that the ease was properly submitted to the jla></p>

<p>Error to the Court of Common Pleas of Beaver county: Of October and November Term, 1884, No. 183.</p> <p>Debt, by the city of Pittsburgh against David Hostetter, as surety on tbe bonds of Andrew Hartupee, who had entered into two contracts with the city of Pittsburgh for the erection of pumping engines to be used in supplying tbe city with water.</p> <p>The conditions of the bonds were that Hartupee should “ well and truly keep and perform all the terms and conditions of the said contracts on his part to be kept and performed.”</p> <p>Tbe material parts of tbe contracts were as follows: “ The said party of the second part agrees to furnish all labor and materials, construct, deliver and set up, at the proper engine-house, and upon the proper foundations to be erected on the grounds belonging to tbe city, on the Allegheny river, immediately above the mouth of Negley's Run, two graduating double cylinder plunger pumping engines, each of tbe dimensions, designs and materials explained and exhibited in tbe accompanying specifications, and in tbe drawings to which they refer, with the attachments and appurtenances therein described ..... The two pumping engines shall be in all respects completed and ready for the service required of them, on or before the 15th day of November, Anno Domini one thousand eight hundred seventy-four.</p> <p>The party of the first part agreeing to furnish sufficient foundations, in accordance with the requirements of the above mentioned plans, on or before the first day of July, 1874.On condition of the true and faithful performance of all tbe requirements of this agreement and tlie specifications hereto annexed, the said party of the first part hereby agrees to pay to the said party of the second part tlie sum of three hundred and seventy-five thousand dollars,* in full payment of all the work, labor, materials and supplies in this contract and the specifications hereto annexed, embracing tlie perfect and satisfactory construction of the machinery.</p> <p>And it is further agreed by the parties to this contract, that the mechanical engineer of the board of water commissioners</p> <p>* In other contract @423,500. shall make approximate monthly estimates for all iron work or composition work completed, and that payments shall be made of eighty (80) per cent, only of the amount of said monthly-estimates: provided that such monthly payments on account shall at no time exceed in the aggregate the amount of the bond given by the said party of the second part, and the said engineer shall, at the same time, certify that the work is progressing faithfully and to his satisfaction.</p> <p>After the faithful erection of the engines to the satisfaction of the engineer, and after their satisfactory action, and their accomplishment of the conditions required, the party of the second part, on the certifícate of the said engineer, shall be paid the balance due on this contract, with the exception of ten (10) per cent., which shall be retained until after the term of probation already mentioned.</p> <p>At the end of said term, on the certificate of said engineer of the faithful completion of this contract, the said party of the second part shall be paid whatever balance may be owing them.And the said party of the second part hereby further agrees that the party of the first part shall be, and is hereby authorized to deduct and retain out of the moneys which may be due or become due to the said party of the second part, under this agreement, the sum of $100 per day as liquidated damages for each and every day the aforesaid work may be uncompleted, over and above the time herein stipulated for its completion; provided that said board of water commissioners, by and with the consent of said party of the second part, shall have the right to extend the time for the completion of said work, by resolution to that effect, and indorsing on this agreement.And it is hereby expressly understood and agreed, by and between the parties to ■this contract, that the board of water commissioners of the city of Pittsburgh, as agents of the party of the first part, reserves to itself the power to suspend the execution of this contract, and to annul the same, whenever the other contracting party hereto fails to comply with the terms, or any of the terms of this contract, or with the proper directions of said board, in relation thereto; and.that such suspension or annulment shall not affect the right of the city to recover any damage from such failure.</p> <p>In case of forfeiture of this contract, under any of the instances above mentioned, or in case of failure to perforin and satisfy the other conditions and obligations of this contract, due notice shall be given to the said party of the second part accordingly, by the mechanical engineer of said commission, and the contract and agreement may then be declared null and void; and the said party of the first part may in such case, at their discretion, contract with other parties for the delivery or completion of all or any part of the work left uncompleted by the said party of the second part, or for the correction of the whole or any part thereof.</p> <p>In case of such failure to perform the contract, the said party of the second part shall become liable for any damages caused the said city of Pittsburgh by reason of said non-performance ; and shall besides, and under any circumstances, forfeit to the said city the amount of twenty per cent, above mentioned, or of any other monej's which may be held in reserve by the said party of the first part.</p> <p>It is hereby further agreed, that in case any question or dispute between the parties shall arise under this contract or touching the quautity, quality or value of any work done thereunder, the same shall be referred to the mechanical engineer, whose decision shall be final and conclusive. And the said party of the second part hereby waives and releases all right of action and suit at law under or by virtue of this contract.”</p> <p>After the work was partly completed the city complained that the quality and strength of the materials used were not such as the contract called for, by reason of which numerous breakages ensued resulting in great loss to the city; that the workmanship was inferior, and that the work was unnecessarily delayed, not being completed for several years after the time called for in the contract. Accordingly after due notice to the contractor and demand of possession, under claim of forfeiture, the city took forcible possession of the work in an unfinished condition, refused to make further payments and claimed damages.</p> <p>The contractor denied these allegations and claimed that the delays were occasioned by the city's failure to have the foundations ready, and its numerous changes of plan; that lie had replaced the broken parts at his own expense and that there were large sums dne him on the contract and for extra work.</p> <p>The facts in dispute were then submitted to the mechanical engineer, who after a hearing, and consideration of the testimony, reported that the contractor had been fully paid for all the work done by him ; and further that lie owed the city on each contract, a sum named, by reason of his breach of contract in furnishing defective materials and in doing imperfect work — which sums the engineer reported the contractor must pay the city.</p> <p>This suit was against Hostetter, as surety on the contract- or’s bonds, to recover the sums indicated in the mechanical engineer’s award.</p> <p>On tbe trial, before Hice, P. J., the plaintiff offered in evidence the record in tbe case of Hartupee v. The City of Pittsburgh (reported in 1 Out. 107), which was a suit by the contractor against the city to recover the sum which he claimed to be due him on his contract, as above set out. This, in order to show what the matters in dispute under the contract were; and for the same purpose plaintiff offered the testimony taken in said case. Both offers objected to as irrelevant to the present issue. Objections overruled and testimony admitted. Exceptions. (First and second assignments of error.)</p> <p>Plaintiff then offered the testimony taken before the mechanical engineer, and also the arguments of counsel in that proceeding, for the purpose of showing- — -(1) *“ What the questions in dispute between the city and Hartupee were, prior to the reference; ” (2) To show that Hostetter, the present defendant, “ employed counsel, who appeared before the mechanical engineer and cross-examined witnesses and introduced testimony in his own behalf — all the testimony taken before mechanical engineer Joseph L.'Lowry, acting under the contract of September 4th, 1873, as referee.” Objected to as irrelevant. Objection overruled and testimony admitted. Exception. (Third and fourth assignments of error.)</p> <p>Plaintiff also offered the decision and award of said mechanical engineer. Objected to by defendant:</p> <p>(1) “ Because there is no evidence of any dispute between said parties as to which the mechanical engineer had jurisdiction.”</p> <p>(2) “ Because under the contract, as a matter of law, the jurisdiction of the mechanical engineer related only to questions of quality, quantity and value as a condition precedent to payment by the city to its contractor.”</p> <p>(3) “Because under the contract, as matter of law, the jurisdiction of the mechanical engineer did not extend to the decision of any questions as to the city’s right against the contractor for damages.”</p> <p>(4) “Because under the contract, as matter of law, the mechanical engineer had no jurisdiction as to the matters which, upon the face of the award, appear to 'have been passed upon by him.”</p> <p>(5) “ Because the defendant is not bound by any of his undertakings as bondsman by any decisions of the mechanical engineer, except possibly in so far as the same is a condition precedent of payment to the contractor.”</p> <p>(6) “Because the award is void in law for the reason that it was not competent for the parties to the contract to oust the ordinary tribunals of jurisdiction of matters of dispute not existing at the time tbe contract was made.”</p> <p>By the Court. “We believe that, giving a fair, reasonable construction to the contract between tbe plaintiff in the case and Andrew Hartupee, tbe contractor, that the purpose and effect of tbe contract was to constitute the mechanical engineer of the city of Pittsburgh an arbitrator to pass upon questions that might arise under the contract of September 4th, 1878, between plaintiff and Hartupee, and that he had jurisdiction to hear and determine those questions. That the questions submitted to him as shown by this award were questions competent for him to pass upon, and that he has passed upon them, and this conclusion we believe is also in accord with the rulings of our own courts.” Evidence admitted. Exception. (Fifth assignment of error.)</p> <p>The defendant offered to show, by calling Hartupee and others:</p> <p>“ That the said engines mentioned in the contract were constructed according to specifications contained in letters patent of the United States, granted to the said mechanical engineer and according to the plans and designs prepared by the said mechanical engineer, and that said machinery was constructed by the contractor under the personal supervision of the mechanical engineer, and that all material defects of said machinery were the result of improper propositions and designs and relative parts in said machinery, and not by the use of bad material or imperfect workmanship on the part of contractor.</p> <p>“ This, as tending to show fraud in the making of the award, not alone from inconsistent declarations of the mechanical engineer and a contradiction of his findings by the facts, but also for showing motives for fraudulent finding upon the part of the mechanical engineer.” Objected to. Objection sustained and evidence excluded. Exception. (Ninth assignment of error.)</p> <p>Defendant also offered to show: “ That when the award was made there was unpaid to the contractor, under the terms of the contract, and according to certificates of the mechanical engineer given during the progress of the work, the sum of $69,405.04, and other moneys for work done under the contract and not certified to, amounting to the sum of $80,000 ; and also moneys for extra work amounting to about $25,000; and that said mechanical engineer, in his award, forfeited all these moneys and charged the contractor in addition, as damages, with the cost of all material and work which he alleged to be defective, amounting to $174,000. That according to the estimates and certificates of the mechanical engineer already furnished, the work done under the contract was of the value of 1347,027.73; that the aggregate amount paid to the contractor was $277,622.18, leaving in the hands of the city $69.405.54; that the mechanical engineer officially reported to the city both before and after the making of his award, that all alleged defective work could be replaced for a sum less than the aforesaid sum remaining in the city’s hands ; that all said alleged defective work has been replaced, and that a balance still remains in the hands of the city of the moneys certified by the engineer and unpaid to the contractor ; that under the terms of the contract the city of Pittsburgh obligated itself to furnish foundations whereon to erect the engines contracted for on or before the first day of July, 1874, and to furnish to the contractor from time to time, as required, detailed drawings of all the principal parts of the machinery to be constructed: that the erection of said engines could not be proceeded with until said foundations were furnished, and said machinery could not be made until said drawings were furnished; that said foundations were not furnished until the 24th day of April, 1875, and that said drawings of many of material parts of the said machinery were not furnished until 1876 and 1877, and the last not until April 12th, 1878, all of which facts were well known to the mechanical engineer at the time when he made his award.</p> <p>“ That notwithstanding these facts and this knowledge, the said mechanical engineer in the said award charges the said contractor with damages at the rate of $100 per diem for the period covered by the delajr caused by. said mechanical engineer in the failure to furnish foundations and plans as aforesaid; that during the progress of the work the same was inspected by the mechanical engineer and his agents, and each and every item thereof estimated by said engineer, and certified by him to be satisfactory.</p> <p>“ That in his award he condemns and charges the contractor damages for work estimated by him (the engineer) as satisfactory, upon the ground of alleged defects, and this without any information as to quantity or value of said work gained after said original inspection certificate and estimate.”</p> <p>All this “for the purpose of showing mistake of law on the part of the mechanical engineer, and as evidence for the jury of actual fraud on the part of the said engineer in the making of the award.” Objected to. Objections sustained and evidence excluded. Exceptions. (Tenth, eleventh, twelfth and fourteenth assignments of error.)</p> <p>In the general charge the court instructed the jury, inter alia, as follows:</p> <p>“These disputes and questions that were thus to be sub-nritted'to him, as we understand the contract, and as we instruct yon, were not merely disputes in relation to the quantity, quality or value of the material, but the jurisdiction of the mechanical engineer, under the agreement, extended beyond this. The language of the provision is this, ‘It is hereby further agreed that in ease any question or dispute between the parties arise under this contract or touching the quantity, quality or value of any work done thereunder, the same shall be referred to the mechanical engineer, whose decision shall be final and conclusive, and the said party of the second part’ (Mr. Hartupee) ‘hereby waives and releases all right of action or suit at law under and by virtue of this contract.’</p> <p>“ You will observe that under this provision they establish a tribunal, as it were, that should pass upon all questions of dispute that might arise between and determine them so far as they were under this contract.</p> <p>“ It would seem from the evidence that not only Mr. Har-tupee appeared before the arbiter in pursuance of this notice served upon him, but that notice was also given to his sureties, and that they with their counsel appeared there and took part in the proceedings, cross-examined witnesses, introduced testimony and argued the case to the referee.</p> <p>“ If we were right in admitting this award (as we believe we were), then, we say to you that the plaintiff has made out a case; that it establishes the fact that there were breaches of this contract on the part' of Mr. Hartupee, the principal, and breaches for which Dr. Hostetter, as surety upon his bond, is liable.</p> <p>“We say further to yon that this award (unless it be properly impeached) unless it be attacked in such a way as to show that it is not a valid award, and should not therefore be sustained, is binding upon the defendant in this case. It is conclusive upon him.As the case now stands, it simply narrows itself down to this: Here was a contract by which Mr. Hartupee, the contractor, undertook to do certain work, and do it in a certain way, and make it of certain materials. .For the faithful performance of that contract he gave his bond with sureties, one of those sureties being the defendant in this case. In that contract it was agreed that all matters in variance between them should be submitted to a certain party designated as a referee or arbiter-, and that his decision should be final and conclusive as between them. Matters in variance —questions in dispute — arose between them. These were submitted to this arbiter in pursuance of this provision of the contract, and he has found that there were breaches, and has assessed the damages.</p> <p>“ This we conceive to be in accord with the contract; that be bad power to consider and determine these questions, and to award as be has done. This, as between Mr. Hartupee, the contractor, and the city, is binding and conclusive upon him, and having found that there were breaches of this contract, that he failed to perform and fulfil its terms, then we say to you, that under their bond the liability of the surety arises, and that the finding of the referee, the mechanical engineer, is binding upon him also, unless it is shown that that award was in some way defective. In this way, as remarked before, we have had various offers to show that it was defective, that it was not a valid award, and this upon various grounds, but none, of these offers, as we conceive, were sufficient. Therefore this award stands before you unimpeached, and you would have, as we can see, but one dutjr in this case, and that is to find a verdict in favor of the plaintiff for the sum claimed, to wit, $174,000, together with interest upon that sum from the date of the award, the 31st day of July, 1882, to the present time.</p> <p>“ The form of your verdict should be for the penal sum of the bond, $375,000, to be released on the payment of the amount of your verdict.” (Sixteenth, seventeenth, eighteenth, nineteenth and twenty-fourth assignments of error.)</p> <p>Verdict for plaintiff for $375,000, to be released on payment of $190,240, and judgment thereon. Whereupon the defendant took this writ, assigning for error the admission and refusal of evidence, as above set out, and that part of the general charge of the court, cited.</p> <p>Having refused to permit the defendant below to show that the contingency in which the engineer’s right to make an award at all had never happened, the court below admitted the award in evidence, and held it conclusive against the contractor’s surety, the defendant below. In this there was manifest error, for the following reasons:</p> <p>(a) The jurisdiction of the engineer as arbiter extended only to “questions or disputes” between the city and its contractor “touching the quantity, quality or value of work done under the contract.” It did not extend to the decision of questions of law and fact arising under the contract generally.</p> <p>All the cases in which the engineer’s authority has been upheld, are cases where there was a dispute relative to the amount, character or quality of the work done: Lauman v. Young, 7 Casey 309; McGovern v. Bockius, 1 W. N. C. 557.</p> <p>(b) His power extended only to the decision of questions and disputes so far as they related to payment to the contractor; it did not extend to determining that anything should be paid hy the contractor to the city.</p> <p>The principle as expressed in the Pennsylvania cases is— that the arbiter’s valuation becomes a condition precedent to recovery: Monongahela Navigation Go. v. Fenlon, 4 W. & S. 205 ; Fannce v. Burke & Gonder. 4 Harris 469; Snodgrass v. Gavit, 4 Casey 221; Lauman v. Young, 7 Casey 306; Herdic »■ Bilger, 11 Wr. 60 ; Reynolds v. Caldwell, 1 P. F. S. 298 ; Quigley v. Dellaas, 1 Norris 267.</p> <p>(c) Even if both the city and the contractor had agreed to refer to the engineer all questions or disputes that might arise between them under the contract, it would not have been in their power to do so. Such an agreement would have been void as contrary to public policy, and could not have ousted the jurisdiction of the courts: Rea’s Appeal, 13 W. N. C. 546; Gray v. Wilson, 4 Watts 39; Mentz v. Armenia Fire Ins. Co. 29 P. F. S. 478, and notably of Morse v. Ins. Co. 20 Wallace 445 ; Hart v. Hart, L. R. 18 Ch. Div. 670 ; Condon v. South Side R. R. Co., 14 Gratt. 302; Scott v. Avery, 36 Eng. L. & Eq. 1; Canal Trustees v. Lynch, 5 Gilman 521; Wallace v. Curtiss, 36 Ill. 156.</p> <p>(d) In any event the engineer’s award against the principal debtor was not evidence against the surety. Even a judgment would not be such evidence: Freeman on Judgments, § 180; Giltinan v. Strong, 14 P. F. S. 247; Jackson v. Gris-wold, 4 Hill 522.</p> <p>00 The award, even if evidence against the surety, was subject to be impeached and set aside by proof of fraud or mistake. On the question of fraud “ any testimony having any bearing, however remote, is admissible; ” and in impeach ing an award, fraud or mistake may be inferred, inter alia, from outrageous error, excessive damages, and manifest pal pable injustice: Zerbe v. Melley, 4 Harris 495; Heath v. Page, 13 P. F. S. 126 ; Woods v. Gummert, 17 P. F. S. 137 ; Baker v. Crockett, Hardin (Ky.) 389; Van Cortlandt v. Un-derhill, 17 Johns. 405; Vallance v. Life Ins. Co., 42 Pa. St. 441; Graver v. Miller, 65 Pa. St. 456; Loucheim v. Hons-zey, 77 Pa. St. 305.</p> <p>Under the disputed clause in the contract the mechanical engineer was made not only judge of questions of fact, but also of all questions of law, including the construction and meaning of all clauses of the contract necessary to the decision of disputes. This was distinctly ruled in Connor v. Simpson, 8 Out. 440. The engineer, having jurisdiction, his award was admissible in evidence in this suit; and like the judgment of a court of co-ordinate jurisdiction, was conclusive between the parties upon the same matters of dispute : Merrick’s Estate, 5 Watts & S. 9; Darlington v. Grav, 5 Wharton 487; 2 Smith’s Leading Cases 781, 801; 2 Wharton’s Evidence, § 800; Lamb v. Miller, 6 Harris 450. The surety appeared before the arbitrator and made defence, and was thus concluded by the award, even though he was not a necessary party to the issue: Heller v. Jones, 4 Binney 61: Kinnersley v. Orpe, 2 Douglass 517; Masser v. Strickland, 17 S. & R. 358 (Gibson, C. J., dissenting opinion) ; Lovejoy v. Murray, 3 Wall. 18. The appellant’s offers to prove fraud were properly excluded from the jury, for they neither alleged fraud in any act of the engineer as arbitrator, nor showed facts fraudulent in themselves. They were mere isolated acts of the engineer outside of his sphere as arbitrator, and not inconsistent with his honesty in making the award.</p>

<p>1. A bill in equity alleged that the plaintiffs were at various times mem- ' bers of a certain co-partnership; that by the articles of agreement any partner had the right to assign his interest therein, the assignee succeeding to the rights and liabuities of the assignor; that the assignees and the remaining partners were thereupon bound to exonerate the assignor from all debts contracted before or subsequent to the assignment, and to apply the assets of the firm to the payment of tire then existing liabilities; that plaintiffs sold their interests in said firm at different dates to various purchasers; that the assets of the firm at the time of the assignments were sufficient to pay the debts of the firm then existing, but that the defendants (being the assignees and remaining partners) had failed to so apply them and had converted them to their own use; that plaintiffs were consequently obliged to pay various sums to the creditors of the firm. The bill prayed that an account be taken of the claims against said firm, which have been paid by the plaintiffs; also of the claims against said firm which are still unpaid, and of the relative liability therefor of said defendants and plaintiffs and each of them, and to each other; that the defendants be ordered to reimburse the plaintiffs for the sums so paid by them and to exonerate them from all unpaid claims against the firm; that an account be taken of the assets of the firm, and that the defendants be ordered to transfer and deliver them to a Receiver; also, general ■ relief.</p> <p>i Held, that a court of equity had no jurisdiction; that the plaintiffs had ^complete and adequate remedy at law.</p> <p>2. On the hearing of said hill it further appeared that at the time of its filing a partnership hill was then pending, filed by other members of the firm and involving substantially the same questions; that a Receiver had been appointed thereunder and the assets placed in his hands.</p> <p>Held, that such facts constituted a further reason for the dismissal of ^the hill.</p>

1 of Alie, ahemi county, sitting in Equity: Of October and November Term, 1884; No. 233. This was an appeal by Samuel Dyer, guardian of Edwin T. Ray, who was a minor child of David E. Ray, deceased, from a decree of the said court, sustaining a bill in equity, wherein Martha Ray et. al., were plaintiffs and Samuel Dyer, as guardian, and Brice Ray, as administrator of David E. Ray, deceased, were defendants.

<p>1. Where, in an action to recover damages for the Preach of an alleged parol contract for the conveyance of land, it appears from plaintiff’s testimony that ho has possession of the land, in which he has not been disturbed by the defendant; and that he has never made a demand on the defendant for a conveyance; it is not error for the court below to direct a verdict for the defendant. It is immaterial that the defendant testified that ho never intended to execute a deed even if it were demanded giving as a reason, that he never entered into the alleged contract.</p> <p>2. rt is not enough that the contract is within the statute of frauds and that by reason thereof either party may rescind at pleasure; there must be an'actual rescission, a breach, or no action will lie.</p> <p>3. Where there has been an actual breach of such a contract, the damages must he confined to the purchase money paid, or the expenses actually incurred in consequence of the contract. The vendor is not bound to compensate the vendee for the loss of a bargain.</p> <p>4. An action for damages will not lie for the value of personal property, left in charge of a person as bailee, unless the plaintiff shows a demand for the possession of the same.</p>

<p>1. Market value, as a measure of damages for land taken or injured by a railroad company, cannot be ascertained by evidence of particular sales o£ other properties alleged to be situated similarly to the one in question. Such evidence would introduce collateral issues, and is not admissible in such a proceeding. 1 a</p> <p>2. Tlio adaptation of the property in question to any particular use to which it has been or may be applied, is a proper element to be consul-erial by the jury in estimating its market value before and after the location of the railroad.</p> <p>The jury cannot take into consideration any supposed loss to the plaintiff of profits in Ms business, by reason of the appropriation of his property by the railroad company.’</p>

<p>Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term, 1884, No. 75.</p> <p>Assumpsit, by the Allegheny Valley Railroad Company against R. B. Phillips, administrator of the estate of William Phillips, deceased, to recover a balance alleged to be due to the plaintiff by the decedent, who was former president of the company. Plea, the general issue.</p> <p>On the trial, before Stowe, P. J., the following facts appeared: William Phillips was president of the plaintiff corn-pany from 1865 until his death, in April, 1874. In December 1874 the Auditor of the company made a report showing the accounts between the company and William Phillips, during the period of the latter’s presidency, from which there appeared a balance due the company of $357,527.40.</p> <p>On December 20th, 1875, the company brought this suit against William Phillips’s administrator, for said balance ; filing as their statement of account the above report of the Auditor. Before the cause came to trial R. B. Phillips filed his account in the Orphans’ Court, as administrator of William Phillips, and the company presented their claim before the judg’e who audited said account. In pursuance of this proceeding, after a contest which extended over several weeks, the Orphans’ Court entered a decree awarding the company a dividend of $8,004.41, from William Phillips’s estate, on a debt stated in the decree to be $408,378.43.</p> <p>Subsequently, when the present suit came to trial, the plaintiff company offered in evidence the record of the Orphans’ Court showing the above decree. Objected to by defendant’s counsel as incompetent and irrelevant, on the ground that the finding of the Orphans’ Court was not binding upon the parties who would be affected by the judgment in this cause. Objection overruled and evidence admitted. Exception.</p> <p>Both parties then rested, and defendant’s counsel asked the court to charge that under the evidence the verdict should be for the defendant.</p> <p>The court charged as follows: “Under the evidence in this cause the plaintiff is entitled to your verdict for the amount indicated by the decree of the Orphans’ Court with interest up to the present time.”</p> <p>■ Verdict for plaintiff for $466,837.86 and judgment thereon ; whereupon the defendant took this writ assigning for error the admission of said Orphans’ Court record in evidence and the charge of the court.</p> <p>The issue framed by the pleadings in this suit was as .to the right of the plaintiff below to recover from defendant a balance appearing to be due by the Auditor’s report or bill of particulars. On the trial the company claimed to recover the amount of a judgment or decree of another court, and the court below not only admitted this decree in evidence, but held that it was conclusive between the parties. An action at law will not lie on a decree of the Orphans’ Court: Eichelberger v. Smyser, 8 Watts 181. How then can such a decree be used in evidence, tiras accomplishing the same end indirectly. It was not the duty of the administrator specially to examine and defend every account presented for payment; and even if he bad known that the claim proven was for more than was justly due, it is doubtful if lie had the power to appeal from the decree: Mellon’s Appeal, 8 Casey 121; Gallagher’s Appeal, 8 Norris 80. The parties who will suffer by tbis judgment if it is allowed to stand are the heirs of William Phillips, who were not parties to, and could not be beard in the Orphans’ Court proceedings. A judgment in Common Pleas in favor of a creditor would not conclude the Orphans’ Court: McCreery’s Appeal, Pitts. Leg. J., vol. 31, No. 23, p. 230. To affirm tbis judgment is to destroy the recognized right of the heirs to defend a scire facias to charge land with the debts of their ancestor.</p> <p>Dalzell (with whom was Hampton) for defendant in error.— The Orphans’ Court, found, after a strenuous defence by the administrator, that William Phillips was at his death indebted to the railroad company in a sum specified. The items entering into tbis decree were the same as those embraced in the bill of particulars in this action. The defendant did not object to the evidence offered because the plaintiff had not declared on any such claim, but “ because the finding of the Orphans’ Court was not binding upon the parties who would bo affected by the judgment.” Bat the parties were identical in both courts; the issue was the same, and the Orphans’ Court was one of competent jurisdiction. The decree of the Orphans’ Court was final — not appealed from. It could “be enforced by an action of debt or assumpsit in the common law courts. The record in the Orphans’ Court is evidence of the debt, and conclusive of the subject matter of the decree. The party may have redress by action of debt or assumpsit, in which the decree is but inducement, or evidence of the debt: ” Eichelberger v. Smyser, 8 Watts 183.</p> <p>The court below did not rule that the decree offered was conclusive between the parties. It was not called upon to so rule. The defendant below offered no evidence, made no pretence of a defence, but contented himself with asking the court to say that the decree offered was not evidence.</p>

<p>Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term, 1884, No. 76.</p> <p>Scire facias, issued by the Allegheny Valley Railroad Company, against R. P. Phillips and others, heirs of William Phillips, deceased, upon a judgment previously obtained against the administrators of said decedent.</p> <p>William Phillips, president of the Allegheny Valley Railroad Co., died on April 14th, 1874. As a creditor of the decedent, tlie said company brought an action of assumpsit against, bis administrator on December 20th, 1875, and recovered judgment January 8th, 1888. On January 10th, 1883, the company issued this scire facias, oil said judgment, against tlie decedent’s heirs.</p> <p>On the trial, before Coluter, J., the defendants offered in evidence exhibits Nos. 1 and 2, which were papers prepared by counsel to show that the Auditor’s report or statement of account between Wm. Phillips and the Allegheny Valley R. R. Co., upon which recovery was had in the suit against the administrators, was erroneous and included items which should not have been included. Objected that in the absence of evidence as to the incorrectness of the items specified, the exhibits were incompetent. The court admitted all items which were professed to be incorrect, but excluded the remainder of the exhibits. Exceptions. (19th and 20th assignments of error.)</p> <p>Defendants offered in evidence the ledger and journal of the plaintiff company from 1870 to 1875, to show that the defendant in the original action was not credited with many items for which he was entitled to credit. Offer refused. Exception. (18th assignment of error.)</p> <p>Defendants offered certain entries in the plaintiff company’s ledger (which had already been proved), dated December 81st, 1874, in order to show, in connection with other testimony, that the books of the company were erroneously changed on that day and certain items transferred to the individual account of William Phillips, which should have been charged to him as president. Objected to; excluded. Exception. (21st assignment of error.)</p> <p>Defendants offered witnesses to prove that William Phillips had a number of private personal papers in the company’s office which .the latter afterwards took possession of; also to prove the financial condition of the road when Phillips became president. Objected to ; excluded. Exceptions. (22d, 23d and 24th assignments of error.)</p> <p>Defendants^ proposed to show by the clerk of Lyon, Shorb & Co., of which firm William Phillips was a member, that certain negotiable paper was drawn by the Allegheny Valley Railroad Companj'-, indorsed by Phillips for the benefit of the company, and also indorsed by Lyon, Shorb & C6. as accommodation indorsers ; that said firm was obliged to take up the notes ; that on a settlement between it and the railroad company the former received income bonds on account of which there was a balance of $>96,000 charged to the private account of Phillips and paid by him to Lyon, Shorb & Co. This for the purpose of showing that William Phillips was entitled to á credit as against the Allegheny Valley Railroad Co. which had not been allowed in this account or taken into the settlement. This to be followed by evidence showing that the matter of the settling of the affairs of the firm of Lyon, Shorb & Co. was the subject of a bill in equity, and the facts proposed to be shown were adjudicated in that ease; that this balance was charged up to the interest of William Phillips in the firm of Lyon, Shorb & Co. Objected to ; evidence excluded. Exception. (25th and 26th assignments of error.)</p> <p>Defendants offered in evidence “ minute of December 8th, 1871, on page 14 of the minute book, showing a contract between the Allegheny Valley Railroad Co. and the Pennsylvania Railroad Co. and J. S. Morgan & Co., by which a certain amount of the Allegheny Valle}r Railroad bonds were exchanged for Philadelphia and Erie bonds, and those Philadelphia and Erie bonds placed in the hands of J. S. Morgan & Co. for sale on account of the Allegheny Valley Railroad Co., to wit: Bonds to the amount of $5,000,000. This for the purpose of showing what disposition was made of the Allegheny Valley Railroad bonds while William Phillips was president, and to rebut the allegations or presumption that ho retained or appropriated any of them to liis own use, to be followed by calling on plaintiff to produce the accounts of sale of the bonds or receipts for the sale of the bonds; ” also various receipts from the treasurer of the Allegheny Valley Railroad Co. to William Phillips for certain bonds therein mentioned. Objected to ; excluded. Exceptions. (27th, 31st, 32d and 33d assignments of error.)</p> <p>Defendants offered to prove “ that the books now in possession of the witness (J. B. Phillips) are the books of William Phillips, President of the Allegheny Valley Railroad Co., kept in the office of the company when he was President, under his direction, by his secretary or clerk, who ,has since died, and propose to offer them in evidence as transactions of the President with the company.” Objection ; offer refused. Exception. (28th assignment of error.)</p> <p>Defendants’ counsel offered to ask the following- question : “ State whether at your uncle’s death, either in his safe, as President, or his box or private desk, or anywhere else, he had any bonds except the two spoken of?” Counsel stated that by this question they proposed to “ show that amongst William Phillips’s assets, coming into the hands of his administrator, there was never a single bond or coupon came into his possession except the two bonds and coupons which were surrendered.” Objection; excluded. Exception.</p> <p>They also in this connection made the following offer : To put in evidence “ Exhibit No. 97, and also No. 97|-, which is the account of Mr. Spencer, the Assistant Treasurer of the Pan Handle Railroad. This as bearing upon the question of the propriety of the large charge of missing coupons and certain coupons charged to William Phillips.” Objection ; offer refused. Exception. (29th and 46th assignments of error.)</p> <p>Defendants offered in evidence Exhibit No. 78, check of William Phillips on the Iron Citv National Bank to C. Reiter Bro. & Co. for $527.</p> <p>Objected to, first, as incompetent and irrelevant; second, because John Ballentine, Treasurer, testified that the said check was repaid by the Allegheny Valley Railroad Co., by an Allegheny Valley Railroad check, No. 344, said check representing a lumber bill. Objection, sustained. Exception. (34th assignment of error.)</p> <p>Defendants offered in evidence numerous checks drawn by William Phillips to John Ballentine, Treasurer of the company. Objected to, on the ground that there had been testimony to show that Phillips had received credit for the amounts mentioned in the checks. Objection sustained. Exception. (35th to 43d assignments of error.)</p> <p>Defendants offered in evidence “ Exhibit No. 19, being two receipts signed by William A. Tomlinson, Treasurer, given to William Phillips, the first of which appears to be a receipt for Pittsburgh, Cincinnati and St. Louis bonds received b}r the Treasurer from the President, one batch to be given to Michael Shall for cars, and the other for Jackson & Sharpe for cars.” This is offered for the purpose of showing that William Phillips accounted for all the bonds of that class that came into his possession, and therefore it was error in the plaintiff to charge him in the Auditor’s report and bill of particulars in evidence with coupons of these bonds missing.</p> <p>Objected to, first, as incompetent and irrelevant.. Second. The receipts upon their face import no liability on the part of the Allegheny Valley Railroad Co. to a credit'to Phillips for the subject matter of the receipts. Objections sustained. Exception. (44th assignment of error.)</p> <p>Defendants offered in evidence “ entry on page 70, plaintiff’s cash book ‘ B,’ produced and identified by the witness, being entry under date of the 16th September, 1871: ‘ Bills payable, note given William Phillips, dated September 16th, 1871, —-months being for $40,000 borrowed for the Bennett’s Branch Railroad; carried out, $41,152.26.’ This is offered as general evidence to show that the account or bill of particulars as sued on is incorrect, according to the plaintiff’s own books and papers, and not correctly stated in taking from the books as showing errors in the account.” Objected to; excluded. Exception. (47th assignment of error.)</p> <p>Defendants then made the following offer: “ To put in evidence the entries upon pages 164 and 259 of journal ‘ A,’ produced by plaintiff, being the same as testified to by John Ball entine, the Treasurer, to wit: ‘ Sundries, William Phillips to Phillip Templeton for 129 aeres and 61 perches of land situated in Pine township, Armstrong county, sold to said Phillips July 6th, 1866, 828,125. General expense for interest in adjustment of account for above purchase as settled October 18th, 1869, $489.65. Discount- on mortgage bonds for discount on 16 bonds as per bill 10 per cent., 81,600.’ 4 Philip Templeton, Dr. to sundries, 830,214.65. To first mortgage bonds, eastern extension for 16 bonds $1,000 each, given in part settlement of account, $16,000. Bills payable William Phillips, note at three months from October 6th, 1869, 84,738.22. Do. do. four months, $4,738.22. Do. do. five months, $4,738.21. Carried out, $14,214.65.’ On page 259 the following entry: “Real estate to William Phillips, $30,000 for SO acres of land situate in Pine township, Armstrong county, Pa., held by him for the company, and to be conveyed by him when the proper survey is made. See agreement signed by William Phillips, on file with journal entry of this date, $30,000. Bills payable to William Phillips, $14,214.65 for account of following notes given by him to Phillip Tem-pleton on October 6th, 1869, erroneously charged to his account on journal ‘A,’ page 164, he having assumed and paid the same at maturity, to wit: Note at three months from October 6th, 1869, for $4,738.22 ; at four months, $4,788.22 ; Do. five months, $4,738.21.’ These are offered to show that the surcharge against William Phillips, appearing in plaintiff’s statement of account, on which the judgment was recovered, of the item under date of 1875, for 16 mortgage bonds, Bennett’s Branch, numbers 40 to 55 inclusive, with 1870 coupons attached on, October 19th, 1869, in settlement with P. Tem-pleton for mortgage on 129 acres and 61 perches said land bought from him by William Phillips July 6th, 1866, is an erroneous charge and surcharge, and also, when taken in connection with Exhibit No. 50, allowed to William Phillips in the settlement. Exhibit No. 25, and afterwards surcharged in this account as against him, was an erroneous charging of the account, and as to those items defendants are entitled to have them credited in this proceeding, and in connection with this offer Exhibit No. 50 is offered in evidence.”</p> <p>By the court: “What the defendants offer to prove is perfectly competent, and the only question is whether the entries offered do sustain the purpose they offer, and we think they do not; until the defendants show that the property was conveyed to plaintiff we cannot admit the evidence.” Exception.</p> <p>Defendants further offered in evidence “Exhibit headed 4 Templeton tract of land,’ being a printed copy of an agreement which it was agreed should be used in the absence of the written cop}1' which we have not got, for the purpose of showing that the whole of the Templeton tract was originally purchased for the Allegheny Valley Railroad Companjq and by subsequent arrangements the said railroad took thirty acres of it, William Phillips took a portion of it, J. Edgar Thompson took a portion of it, Thos. A. Scott took a portion of it, and Dr. J. Pancoast took a portion of it.” Objected to. Objection sustained. Exception. (48th, 49th and 50th assignments of error.)</p> <p>Plaintiff asked the court to charge:</p> <p>“ 4. It was adjudicated in said judgment (against the administrator) that William Phillips was chargeable with the sums entered to his debit on the books of the Allegheny Valley Railroad Company subsequent to his death. The defendants have offered no evidence sufficient to impeach the judgment of this court as to the said items. The mere fact that the items were charged up to William Phillips upon the books of the company after his death is insufficient.” Affirmed. (14th assignment of error.</p> <p>Defendants submitted, inter alia, the following points:</p> <p>1. “ That although the judgment of the plaintiff against the administrator of William Phillips, deceased, is prima facie evidence for the plaintiff, yet if the defendants have introduced evidence which is believed by the jury, showing that said judgment is incorrect in many material items, then the .burden of proof shifts and rests upon the° plaintiff, and it becomes incumbent upon the plaintiff to sustain its judgment by proper legal evidence.” Refused. (10th assignment of error.)</p> <p>3. “ That the settlement between William Phillips and the plaintiff, produced and proved by the plaintiff, shows that the plaintiff has no cause of action upon its bill of particulars filed by it, and are sufficient to overturn the prima facies of the judgment and to impose the burden of proof upon the plaintiff.” Refused. (11th assignment of error.)</p> <p>4. “ If the jury believes from the evidence that after the death of William Phillips the books of the plaintiff r company were altered by charging large sums of money to the private account of William Phillips, which sums were transferred from other accounts, and said alterations have not been satisfactorily accounted for, then in making up their verdict the jury have a right to take into account said alterations, and if they do not find the same sustained by satisfactory evidence, to reject all of the sums so transferred in making up their verdict.” Refused. (12th assignment of error.)</p> <p>7. “ The plaintiff in order to charge the lands of the defendants descended to them from William Phillips, deceased, was bound under the law to bring its action against the administrator of said decedent witliin five years from the death of said William Phillips, and to prosecute the same with due diligencio to trial and judgment.”</p> <p>Anmc.r. “ This proposition is correct; but we instruct you that this has been done.”</p> <p>11. “ That if the jury believe from the evidence that William Phillips died on the 14th day of April, 1874, and that an administrator was appointed on the 21st day of April, 1874. and that the plaintiff commenced its action against said administrator on the 20th day of December, 1875, but did not prosecuie it to trial and judgment until the 8th day of January, 1888, a period of over seven years, then said suit was not ‘ duly prosecuted,’ and the lien of the debt of the plaintiff as against the heirs of said William Phillips expired in live years from the death of said William Phillips.” .Refused.</p> <p>12. “If the instructions above prayed for be refused, then the court is requested to charge : That if the jury find from the evidence that William Phillips died on the 14th day of April, 1874, that plaintiff brought suit against the administrator of said decedent on the 20th day of December, 1875, but did not prosecute the same to trial and final judgment until the 8th day of January, 1883, and from the evidence believe that said suit was not duly prosecuted, then their verdict must be in favor of the heirs of said Phillips, deceased.” Refused.</p> <p>The answers to said 7th, 11th and 12th points, and others to the same effect constituted the first nine assignments of error.</p> <p>In the general charge, the court instructed the jury; referring to the defendants’ offer of plaintiff’s books in evidence, as per 18th assignment, as follows :</p> <p>“It lias been stated, gentlemen, by the learned counsel that there was some paper in evidence that showed a large item, and that your judgment should be for defendants. Well, gentlemen, I don’t want a mis-trial of this ease, and I therefore say to you there cannot be a verdict for defendants. It would be a violation of law, and if I did not say so 1 would violate my duty, and if you would find for defendants you would violate yours, because the necessary evidence is not here. Tlie evidence does not go to that extent. The defendants have all the books liere and may call your attention to the items and show you item by item this judgment is wrong, but the law will not permit the books to be thrown in to you when the judgment is prima facie, everything on the books, for you to re-state the account.” (15th assignment of error.)</p> <p>Plaintiff’s counsel asked to have Exhibits Nos. 106 and 107, to wit: a copy of a settlement between the Philadelphia and Erie Railroad Company and the Allegheny Valley Railroad Company: and the bank book of the latter company — go out with the jury. Objected to by defendants. Objection overruled. Exception. (17th assignment of error.)</p> <p>Defendant’s counsel asked to have Exhibits Nos. 1 and 2 (set out above in 19th and 20th assignments) go out with the jury. Objection by plaintiff. Objection sustained. (16th assignment of error.)</p> <p>Verdict for plaintiff on the scire facias, December 17th, 1888, and judgment entered thereon March 28th, 1884. Whereupon the defendants took this writ, assigning for error the admission and rejection of evidence; the answers to points, and the general charge of the court, as above set out.</p>

<p>1. Since the Crimes Act of 1860, one indicted as an accessory jointly with the principal may be tried before the conviction of the principal, but it is requisite, on the trial of the accessory, for the Commonwealth to prove the guilt of the principal.</p> <p>2. Upon such trial of the accessory, any evidence competent to show the guilt of the principal is admissible for that purpose, not for the purpose of showing the connection of the accessory with the offence.</p> <p>3. The 'plea of nolo contendere by the principal (no judgment or sentence having been imposed) is inadmissible, on the trial of the accessory, either to affect the accessory or to establish the guilt of the principal. Such plea is but the equivalent of a confession by the principal, which is inadmissible to affect an accessory, and which may be withdrawn at any time before sentence.</p> <p>4. It is not proper practice to ask a witness upon cross-examination whether he had been indicted and convicted of an offence, even for the purpose of affecting his credibility. The record is the only proper evidence.</p> <p>5. The court, on the trial of a criminal case, may, in its discretion, control the cross-examination of witnesses by requiring the proposed questions to be reduced to writing and submitted to the court, before being propounded to the witness.</p> <p>6. The fact that a juror, empanelled on the trial of an accessory, had served as a juror on the trial of a previous indictment against the same defendants who were indicted jointly with him as principals, but involving a different state of facts, is not a ground for challenge for cause.</p>

<p>Before Mercur, C. J., Gordox, PaxsoN, TrtjNKEy, Sterrett and Clark, JJ. GreeN, J. absent.</p> <p>Error to the Court of Common Pleas No. 1 of Allegheny county: Of October and November Term, 1884, No. 112.</p> <p>This was an action on the case by William P. D. Smart against the National Line Steamship Company, to recover the value of baggage transported by the defendant company from Liverpool to New York, and destroyed by the burning of the pier upon which the goods had been landed.</p> <p>The declaration contained two counts, the first of which averred that the defendants as common carriers were put in possession of the plaintiff’s personal baggage, to be carried by defendants from Liverpool to New York, for hire, to be delivered to the plaintiff at the latter port, and that defendants, not regarding their duty in that behalf, did not deliver said goods to the plaintiff, but so negligently conducted themselves that said goods became and were destroyed, and wholly lost to the plaintiff. The second count was precisely similar to the first, except that there was no averment of the destruction of the goods, but it was simply alleged that the goods were wholly lost to the plaintiff. ■ Plea not guilty.</p> <p>The case was removed to the Circuit Court of the United States, but was by that court remanded to the Common Pleas. Another action, similar to this, brought by Elizabeth Smart against the same defendant, was tried at the same time with this case.</p> <p>On the trial, before Bailey, J., the facts appeared as follows : — The plaintiff was a cabin passenger on the defendants’ steamship “ Egypt,” which sailed from Liverpool on January 18th, 1883, and arrived at New York on January 31st, at about ten o clock, A. M. The plaintiffs personal effects were contained in eleven cases, and as they exceeded in weight the free allowance for baggage, the plaintiff was charged and paid $20 for extra baggage.</p> <p>On the arrival of the ship at New York the baggage of the passengers, including the plaintiffs, was discharged on the pier of the Inman Steamship Line which was adjacent to the pier of the National Steamship Line, at which the “Egypt” was unable to land as it was pre-occupied by other vessels. The plaintiff superintended the custom house officer’s inspection of his baggage, on the pier.</p> <p>Shortly before reaching the pier, the ship was boarded by E. R. Low, passenger agent of the defendant company, whoso business it .was, among other things, to inquire of passengers their destination, and in reply to his question the plaintiff said he intended to remain in New York, but as be bad not decided where ho should stay, he wanted his goods to remain, or, as plaintiff testified, “to be removed to the National pier for say a week, until he should find a place to take them to.” At this point the testimony was conflicting. The plaintiff testified that Mr. Low told him “ they would have them moved up the same afternoon.” Mr. Low denied this, and said that after consulting with Mr. Andrews, defendants’ superintendent, he told plaintiff the baggage could remain on the pier at his (plaintiff’s) risk. Nothing was said about compensation for permitting the baggage to remain, but defendants’ witnesses testified that the company did not receive compensation in such cases, the act being a mere accommodation to passengers. The baggage remained on the pier on which it was landed, (the Inman pier) and at about 2 o’clock A. M. the following day that pier caught fire, and notwithstanding the efforts of employees and firemen, it was burned with its contents, including the plaintiff’s baggage.</p> <p>Plaintiff submitted no evidence of negligence by defendants as to the fire. The defendant adduced evidence to show that the fire occurred accidentally from a small boiler and steam engine located on the end of the pier; and also, that there was an adequate force of watchmen and clerks in charge of the pier.</p> <p>The defendants submitted the following points:</p> <p>1. That under the pleadings and evidence the plaintiff is not entitled to recover, and their verdict should be for the defendants.</p> <p>2. If the court declines to charge as requested in the foregoing point, then the court is requested to charge: That if the jury find that the goods in question were discharged from the steamship and delivered to the plaintiff upon the pier or wharf, and that the said goods were subsequently left upon the said pier, in the custody of defendants’ employees, to await the convenience of plaintiff, and that the same were destroyed by fire, then the plaintiff is not entitled to recover.</p> <p>3. If tbe court declines to charge the jury as requested in the foregoing points, then the court is requested to charge: That if plaintiff’s goods were left in the custody of defendants’ employees, without any contract or promise on plaintiff's . part to pay for such custody, and were subsequently destroyed by fire, then the plaintiff cannot recover without proving, to the satisfaction of the jury, that the loss of the goods was occasioned by the gross carelessness of the defendants.</p> <p>4. That, under the facts appearing in and by the evidence of both parties, the defendants were not liable as common carriers, but, in the view most favorable to the plaintiff, as warehousemen ; and that as warehousemen, they are not liable for the loss of the goods by fire, unless the plan tiff affirmatively proves, to the satisfaction of the jury, that the fire was occasioned by the neglect of the defendant.</p> <p>5. That there is no evidence in the case which would warrant the jury in finding that the loss of the goods was occasioned by the- fault of the defendants, and the verdict should be for the defendants.</p> <p>6. That even if the jury think that the plaintiffs left their goods on the Inman pier, upon the promise of Low to have them removed that day to the pier of the defendants, a failure to’ cause them to be so removed would not of itself, be such an act of negligence as to make the defendants liable.</p> <p>The court referred for answer to the above points to the general charge, which was as follows:</p> <p>The defendant company, in the carriage of passengers, freight and baggage, is a common carrier, which means a carrier in common for everybody- who needs its services. Upon such companies the law has imposed a liability excepting for the acts of God .and the public enemy.</p> <p>After the company had brought the plaintiff’s baggage to New York and deposited it upon the wharf its liability did not necessarily cease, as a common carrier, and, though it retained the property afterwards, under some understanding between Mr. Low, representing the company and the plaintiff, it does not follow that its liability, to the extent imposed upon common carriers, continued. In my judgment it did not continue. The arrangement made between the parties was (as I understand it and so instruct you upon the law of the case) that while possession of this propert}r was not taken by the plaintiffs in such a way as to relieve the company of all care of it — not merely as common carrier but in any other aspect — that by ail arrangement the custody was to continue in the defendant company for a short period of time, at the convenience of the plaintiffs, because for the reason stated they did not feel disposed at the time to take the goods into their actual custody. Therefore, I regard the relation subsisting between the property of these plaintiffs and the defendant company, as warehousemen ; not as common carriers.</p> <p>The liability of a common carrier I have stated. The liability of a warehouseman is very different and very much less. I do not consider the defendant, in the care of that property as bailees without compensation. As I have stated I do not consider that the property was delivered to the plain-, tiffs in such a way as to relieve the defendant, at any point of time, from the care of it, and therefore I regard the relation that subsisted afterwards as being accessory to the carriage, and in a degree, at least, compensated for by the passage money and by the additional price which was paid, some $520, for extra baggage.</p> <p>The liability of this company as warehousemen (and such I instruct you they were, for the purpose of this case) was that of ordinary care — a liability for negligence, the absence or failure to give such care to the property as an ordinarily prudent man would give to it under the circumstances. Not an extraordinary degree of care nor a very slight degree, but such care as an ordinarily prudent man would give to his own property under the circumstances — dependent upon the circumstances, upon the surroundings; because that care might be greater under one state of facts than under another. Apparently there was nothing in this case to provoke any undue care or more than the ordinary care of a prudent man. It was a deposit upon a sufficient wharf in the city of New York at a customary place for the deposit of baggage and freight remaining there under cover, in the care and under the supervision of a number of watchmen and other employees.</p> <p>Á discrepancy exists between the parties as to their memory of the contract or agreement, or statement that this baggage would be transferred from the Inman wharf to the dock of the defendant company, and also that the property would be, if left in the mode stated by the plaintiffs, at the risk of the owner. I think the law in relation to that has been very correctly stated by Mr. Sliiras, and do not think it material enough to take any time in discussing it further.</p> <p>The counsel on the respective sides have each presented points which it may be well to dispose of at this time: The plaintiffs ask me to instruct you in their fourth point, as follows:</p> <p>4. If, from the evidence in the case, the jury believe that the plaintiff made an arrangement with the defendants, through their agent, Mr. Low, that his goods should be taken from the wharf of the Inman Line, where they were landed, to the wharf of the defendants, and there warehoused for safe keeping and that the defendants had ample time that day so to do, and did not do so, and the loss arose therefrom, then the defendants were chargeable with negligence, and are liable for the value of the goods of the plaintiff not delivered to him.</p> <p>• Answer. For the reason that I will state presently I refuse that point.</p> <p>On the other hand the defendants ask me to instruct you in its sixth point, as follows:</p> <p>6. That even if the jury think that the plaintiffs left their goods on the Inman pier, upon the promise of Low to have them removed that day to the pier of the defendants, a failure to cause them to be so removed, would not, of itself, be such an act of negligence as to make the defendants liable.</p> <p>A. That point I affirm. In my judgment, at most, it was but a breach of the arrangement, a breach of the contract if you choose, between the plaintiffs and the defendant eompanjr, and the mere failure in itself would not be negligence unless there is something about the surroundings which would indicate a want of care in not transferring. The leaving of the property upon the Inman pier was not, what is called in law the proximate cause of the loss if there be more, than one. The proximate cause of' this loss was, clearly, the fire. As Mr. Shiras has illustrated, the failure to comply with that arrangement on the part of the company might have been the saving of the goods if the fire had occurred upon the other pier instead of upon this.</p> <p>We look only to the proximate cause, not to the remote cause, and the proximate cause was not the leaving of the property there, but the fire, and I instruct you that the leaving of it there was not of itself such an act of negligence as would make the defendant liable, and was not, in my judgment, negligence at all, in the legal meaning of the term. So that, I think, you can safely dismiss from your minds anything in relation to that conversation, whether the terms were used about risk or not, or what the arrangement was.</p> <p>Then I have held the defendant company to the duty of explaining how this loss occurred, and to give us not merely the fact that the property was destroyed by fire. but the surroundings and circumstances under which it occurred, so that the' jury would have an opportunity of determining whether the fire or the loss was the result of want of care or proper prudence upon the part of the defendant. Not that they shall absolutely show you just how the fire occurred, because that might or might not be practicable, but the surroundings of the tire, as, in the absence of evidence of the loss by fire, by theft or otherwise, there would be nothing before us to show that it was not the act of the defendant, itself. It may have converted the property to its own use or it might have been negligent, and in that way be liable, notwithstanding the loss did occur from a casualty, which, properly explained and understood, would relieve it from responsibility. It has-shown, possibly to your satisfaction, that the property was destroyed by fire upon the pier. The witness Smith stated' that ho had seen the property upon the pier immediately before the fire, that it had not been removed and that the pier and its contents were destroyed. So that you will probably be satisfied that the goods were lost upon that pier and that the-loss was by fire. You then turn to the surroundings of the-fire and ascertain whether there is evidence about it which indicates a want of proper care on the part of the defendant, producing that fire. Was it the result of negligence? Does, it appear from all the surroundings ? If it does not appear, the company is not liable for the loss that bas occurred to the plaintiffs. It was one of the misfortunes sucb as we all suffer in this world. Tt does not follow because property is lost in the custody of somebody else that that somebody else is necessarily responsible for the value of the goods. It does not follow that where an accident occurs to one, that necessarily somebody is responsible for that accident. It must be determined by the circumstances. This defendant company would not be responsible unless the facts indicate that it were guilty of some negligence, the want of ordinary prudence and. care which persons give to their property. If you should find that to be the state of facts and fail to find this want of.' prudence and care, this uegligenee, then your verdict would, be for the defendant.</p> <p>If you find otherwise then you come to the question of’ damages. . . .</p> <p>The other points of the respective parties except as affirmed by what I have said, are refused.</p> <p>Verdict for plaintiff for §2,156.83, and judgment thereon. The defendant took this writ of error, assigning for error the answers of the court to defendants’ points, as contained in the charge. The assignments were numbered to correspond with the respective numbers of the defendants’ points.</p> <p>Under tbe pleading's there could be no recovery against the defendants as warehousemen ; the declaration charged them only as common carriers, and the judge, having ruled that the plaintiff failed to mate out a case on that ground, should have affirmed the defendants’ first point and have directed a verdict in their favor, instead of submitting a different question to the jury, viz.: tbe liability of defendants as warehousemen on the ground of negligence. The plaintiff, however, gave no evidence of negligence other than the alleged breach of an alleged agreement to remove the goods prior to the time when the fire occurred. The burden of proof to show negligence— gross negligence, we contend — was on the plaintiff. The judge ruled that the breach of agreement to remove, if there was an agreement and a breach, would not of itself constitute negligence, but left it vaguely to the jury to find negligence “in the surroundings,” if they could. There was no evidence that defendants were bailees for hire, but on the contrary that if bailees they were gratuitous bailees, and the judge should have instructed the jury that in such case they were only liable for'gross negligence. The judge erred in saying that the plaintiff’s passage money and freight for extra baggage were legal considerations for a subsequent undertaking to permit the plaintiff’s goods to remain on the pier. Defendants had a clear right to refuse such permission, because they did not receive compensation therefor. We submit that upon the completion of the voyage and landing of the goods, where the plaintiff took possession of them and superintended the custom house inspection, there was a complete delivery to the plaintiff.</p> <p>The declaration charges, inter alia, that it was the duty of the carrier to deliver the baggage to the passenger, and avers the breach of that duty. A common carrier ceases to be liable for the baggage as a carrier only after the lapse of a reasonable time after its arrival at the place of destination; from that time he holds the baggage under a modified liability, analagous to that of a warehouseman. His duty to exercise care over the property thus remaining in his hands, grows out of the original contract; he assumes the duty of keeping the property till called for; he does not hold it as a mere gratuitous bailee; he is therefore bound to exercise ordinary care in keeping and preserving the property: Edwards on Bailments, sec. 90. The relation between the parties, springing out of the original contract, remained, but the extent of the liability, arising from that relation, varied in proportion to the extent of the performance of the contract: Burnell v. The New York Central It. R. Co., 45 N. Y. 184; Matteson v. New York Central & Hudson River R. R. Co., 76 N. Y. 381.</p> <p>A private carrier, or ordinary bailee for hire, in case of a non-delivery of goods intrusted to him is liable therefor in the absence of ordinary diligence, and the fact of a nondelivery is prima, facie evidence of want of ordinary care, and throws the burden of proof on the bailee: Shenk v. The Phila. Steam Propeller Co., 60 Pa. St. 109; Verner v. Sweit-zer,' 8 Casey 208; Beckman v. Shouse, 5 Rawle 189; Clark v. Spence, Í0 Watts 347.</p> <p>Were it as contended for, a new undertaking, not accessory to and springing from the contract of carriage, the defendants would be still liable, and the contract, and breach of failure to re-deliver being shown, the burden of proof would be on them to show due diligence in the keeping or custody of the goods, or a loss of them notwithstanding srich diligence: Edwards on Bailm., sec. 62, and cases cited. He is not regarded as a gratuitous bailee, though he receives nothing definitely charged for the storage, at the commencement or at the close of the transaction. The incidental facilitates or contributes to the principal bu.sin.ess; the storage of the goods is not therefore a gratuitous service: In the matter of Webb and others, 8 Taunt. R. 443; White v. Humphrey, 11 Adolph & Ellis, N. S. 43; Cairns v. Robins, 8 Mees. & Weis. 258.</p>

<p>A married woman, having no separate estate, who purchases land and pays for it with money borrowed by her in good faith from a third party, to secure which she and her husband,subsequently to the conveyance to her, join in giving to the lender a bond and mortgage of the property so purchased, cannot retain said property as against creditors of her husband whose debts were incurred prior to such transaction.</p>

<p>1. In order to entitle a plaintiff to a judgment for want of a sufficient affidavit of defence, under a rule of court, he must have complied with all the requirements of the rule. The filing by defendant of an affidavit of defence in a case where the plaintiff would not have Peen entitled to judgment if no affidavit of defence had been filed, will not give the court jurisdiction to enter judgment for the jdaiutíff, on the ground that the affidavit of defence was insufficient, and such a judgment will be reversed on writ of error.</p> <p>2. A rule of court of Allegheny county provided, that in certain actions the plaintiff should file “ a specification of the items of Ms claim, together with a statement of the facts necessary to support it, verified by affidavit, to which defendant shall, within the time hereinafter specified, file an answer, verified by affidavit.” Another rule of court provided: “All affidavits required by these rules may be made by the party or his agent.”</p> <p>HeM, that in an affidavit of claim made by a person other than the plaintiff, the fact of the affiant’s agency for the plaintiff must be averred in the affidavit.</p> <p>,". An affidavit of claim was made by one not the plaintiff, without alleging that the affiant made it as the plaintiff’s agent.</p> <p>held, that the case was not in a condition to demand any affidavit of defence, and the fact that the defendant filed one, was no waiver of the objection to the sufficiency of the affidavit of claim.</p> <p>4. In the above case, the objection to the sufficiency of the affidavit of claim was not raised in the court below, which court entered judgment for want of a sufficient affidavit of defence. Upon writ of error to the Supreme Court, said objection was assigned for error, and the judgment was reversed upon that and other grounds.</p> <p>5. The liability of a surety is not to be extended by implication beyond the terms of his contract. Hence, where, in a contract between A. and B., on which C. was surety for B., in which it was provided that, in case of breach by B., A. should retain in his hands certain property of B., and after a reasonable time sell the same at public or private sale, and a breach having occurred, A. caused said property in Ms hands to be sold at sheriff’s sale under a judgment for another debt due by B.</p> <p>held, that the surety was discharged.</p> <p>6. When a creditor lias the means of satisfaction either actually or potentially in his hands or within his control, as security, and does not choose to retain it but relinquishes it, the surety is discharged. '</p> <p>7. The mere taking of promissory notes by a creditor from a debtor does not of itself create a legal presumpfion that they were taken in satisfaction of a previously existing indebtedness, nor establish an agreement to give further time for payment of said indebtedness, whereby a surety will be discharged.</p>

<p>. Error to the Court of Common Pleas No. 2 of Allegheny county: Of October and November Term, 1884, No. 125.</p> <p>This was an action of covenant by Jonas Frazee against the Pittsburgh Insurance Company upon a policy of fire insurance issued by the defendant company to the plaintiff, dated August 13th, 1881, for 12000, for one year, “ on his stock of dry goods, groceries, and merchandise usually kept in a country store, contained in the frame building occupied as store and dwelling, situate, detached, in the village of Selbysport, Garrett county, Maryland.”</p> <p>The policy contained, inter alia, the following printed provisions :—</p> <p>“III. Prohibitions and conditions under which this policy becomes null and void. Except as otherwise permitted and expressed in the printed conditions of this policy, gunpowder, .are positively prohibited from being deposited, stored, kept or used in any building insured upon, or containing any property insured on by this policy, unless by special consent in writing indorsed hereon, naming each article specifically— otherwise the insurance by this policy shall be void.”</p> <p>“IV. Privilege as to lights, keeping and vending of coal oil, gunpowder, etc.Merchants accustomed to deal in the articles are privileged to keep for sale twenty-five pounds of in close tin to be sold</p> <p>“V. General Provisions. ..... It is understood and agreed that this policy is void unless the assured be and shall remain the sole, undisputed and exclusive owner of the legal title to the subject of insurance mentioned in this policy, and that the same is free and shall remain free from all incum-brances, except it be otherwise provided in writing in this policy.”</p> <p>A fire occurred November 11th, 1881, by which some of the goods in the store were destroyed and others were damaged. The plaintiff submitted proofs of loss, on receipt whereof the company offered to pay one half the loss, which the plaintiff refused, and he thereupon brought this suit.</p> <p>On the trial, before White, .J., the plaintiff testified that he was the sole and unconditional owner of the goods insured, but that the store business was conducted under the name of J. Frazee & Bro. under an agreement between himself and his brother, Jasper Frazee, by which he (Jonas) contributed all the capital and paid for all goods subsequently added to the stock, and Jasper was employed to conduct the business and was to receive for his services one half the profits realized, less one half of the losses from bad debts, but was not to have, and did not have, any ownership or interest in the stock of goods. In this the plaintiff was corroborated by bis brother Jasper.</p> <p>The defendants claimed that the property insured belonged to Jonas Frazee and Jasper Frazee doing business as Frazee & Bro.. each owning one half interest in the property. They also claimed that the policy had been avoided by the insured keeping on the premises a greater amount of gunpowder than was permitted under clause 4 of the policy above quoted. To establish these claims they put in evidence the proofs of loss furnished by the plaintiff, sworn to by Jonas Frazee, the plaintiff, and Jasper Frazee, which contained among other clauses the following:</p> <p>“4. That the property insured belonged to Jonas Frazee and Jasper Frazee, doing business as Frazee & Bro., each owning one half interest in the property.”</p> <p>Appended to the proofs of loss were sundry schedules, among which was one of goods saved, from which the following are extracts :</p> <p>“ 29 lbs. Rock powder, at 10c . . $2.90 ”</p> <p>“ T “ Rifle “ “ 20c . . . 1.40”</p> <p>“ 11 “ “ “ “ 20c . . 2.20 ”</p> <p>Other evidence submitted in support of their defence is referred to in the opinion of this court.</p> <p>The plaintiff’s counsel, in rebuttal, made the following offer: “To prove that the policy in suit, stipulating in the written part thereof, that the goods insured are such as are usually kept in a country store, and it already being in evidence that the goods destroyed were kept in a country store, the plaintiff proposes to prove by the witness on the stand, that it is usual and customary to keep powder, both gunpowder and rock-powder, in the quantities indicated by the schedule attached to the proofs of loss, in a country store.”</p> <p>Objected to as incompetent and irrelevant, and especially because the fourth condition of the policy provides the quantity of gunpowder that may be kept for sale by merchants accustomed to deal therein, and it is not competent to show any custom to keep more.</p> <p>By the court: We have here, what is usually kept in a country store, and your conditions say nothing about what is kept in a country store.</p> <p>Objection overruled. Exception.</p> <p>The testimony of two witnesses admitted under said offer, one a dealer in explosives and another a country storekeeper, was to the effect that it is a general thing in country stores to have in stock one keg of rifle powder, and often part of another, and from one to ten kegs of rock or blasting powder, each keg containing twenty-five pounds, the kegs generally being made of iron with screw bungs that can be taken out so that the powder can be poured out into the scale and the bung replaced.</p> <p>The defendant presented,'inter alia, the following points:</p> <p>1. If the agreement between Jonas and Jasper Frazee was, that Jonas should contribute the capital, and Jasper manage the business of the store mentioned in the policy, and receive half the profits^ and bear half the losses from bad debts, then Jonas was not the sole and exclusive owner of the legal title to the goods insured upon, within the true intent and meaning of the fifth condition of the policy; and if the jury so find from the evidence, the verdict should be for the defendant.</p> <p>Answer. This point is affirmed. But if the plaintiff furnished the original stock of goods and kept up the stock with his own money, and his brother Jasper had no interest in the stock, but for his services in keeping the store, instead of a salary, was to receive one half the net profits, and be responsible for one half the bad debts, then the goods would be the sole property of Jonas Frazee. . (First assignment of error.)</p> <p>4. If the jury find from the evidence that, after the issuance of the policy and before the occurrence of the loss, without the consent of the defendant, there was kept in the building containing the goods insured upon, more than twenty-five pounds of gunpowder, the verdict should be for the defendant.</p> <p>Answer. This point is affirmed, unless the jury find that more than that quantity was usually kept in country stores, and that the defendant company knew of this custom.</p> <p>The court charged the jury, inter alia, as follows:</p> <p>The first point presented by the plaintiff’s counsel and the first point presented by defendant’s counsel, raised this question, and I say to you, in answer to those points [that, if Jonas was the exclusive owner of the goods; if Jasper had no interest in the goods themselves; was only interested in the proceeds, was entitled to one half the net proceeds by way of compensation for attending to the store, and being liable for one half of the bad. debts; that if these are the facts, the plaintiff must be considered in law the sole and exclusive owner of the goods.] (Sixth assignment of error.) As insurance companies prescribe their own conditions, they ought to be clear and unambiguous. They ought to be put in such form and in such language that the insured may not be misled or entrapped. They ought to be so clear that there would be no controversy or mistake on the subject. It is because I think the policy in this respect is not so clear and unambiguous, that I allowed evidence to be given as to what was the usual Custom among country stores. Tbe written part of the policy is for goods, &c., “usually kept in a country store.” Where there is any conflict between tbe written and printed portions of a policy, tbe written portion should prevail. The fourth clause would seem to limit merchants who sell gunpowder to keep not exceeding 25 lbs. of gunpowder, and gunpowder, 1 apprehend, covers all kinds of powder used for explosive purposes, either rock or rifle powder — but the language is peculiar again. “ Are privileged to keep for sale 25 lbs. of gunpowder in close tin can.” Does that mean that there shall be only one can ? If so, there can be only one kind of powder kept. This seems to be an enlargement of the third condition. It also applies to merchants generally, in the city as well as elsewhere. There would be a very evident propriety in making some discrimination between merchants in the country and merchants in the city. The latter can replenish their stock much more frequently than the former. It strikes me that the language in this policy is not so clear and free from ambiguity and doubt as it ought to be, and in view of the written portion of the policy, I have admitted evidence as to what is the custom among country stores, [and I leave it for you to say whether it was customary in such stores to keep more than 25 lbs. of gunpowder, and whether that custom was known to the defendant company. If so, I then say to you that the plaintiff can recover, notwithstanding this clause in the policy.] You have the testimony of two witnesses, 1 believe, that it is the custom among country stores to keep rifle powder in one keg, 25 lbs. perhaps, and different kegs of rock powder, and to a much larger amount than is indicated in this policy, and the testimony would go to show that that was a custom invariable in country stores. [Now did the defendant companj^ know of that custom ? There is no direct evidence that they did, but if it is a universal custom among country stores, it would not be a violent presumption to suppose they did know it. Bearing on that question is the fact that when these proofs of loss were made out at first, the number of pounds of powder was clearly set forth, and there seems to have been no objection made by any of the officers of the company at that time. No question raised on this point then.] The only thing spoken about then, as I remember the testimony, was that Jasper being a half owner, Jonas was not entitled to the whole amount. It may be some evidence to your minds, the fact that Mr. Gordon or Mr. McKeown raised no objection on the score of there being more powder than the policy provided for, — that they did not consider that as a violation of the condition of the policy; that, at least, they did not consider it material in tbe ease. I will say, however, that the insurance company are not limited in their defence here to the objections they made at that time. Counsel for plaintiffs have asked me to instruct you that there was a waiver as to anything else, and I have declined to instruct you in that way. If you find, that the plaintiff was not the sole and exclusive owner of the goods, your verdict should be for the defendant; if he was, then yon pass to the next question, and if it was the universal custom to keep a greater quantity of gunpowder in country stores, and the defendant knew that at the time the policy was executed, then the plaintiff is entitled to recover the whole amount of the policy with interest on it from the time fixed in the policy for payment after the proofs were furnished.</p> <p>Yerdictfor the plaintiff for $2,462, and judgment thereon. The defendant took this writ of error, assigning for error the answers to the above points, and the portions of the charge above included within brackets.</p> <p>-Under the evidence Jonas and Jasper Frazee were partners inter sese, each entitled to half the profits, and liable for half the losses whether arising from depreciation, deterioration, injury or destruction of the goods by fire or otherwise. As the policy in express terms contained an exception to the prohibition against keeping gunpowder, which permitted a certain limited amount to be kept, such express clause cannot be modified by the prior general clause insuring such goods as are generally kept in a country store. There was no repugnance or inconsistency between the two clauses. The contract was, to insure the goods in the store, of the kinds usually kept therein, on condition that certain hazardous goods usually kept therein, be kept only in limited quantities. The clause “ usually kept in a country store ” is used to indicate the kinds of merchandise contained in the store; the condition furnishes the rule as to the quantities to be kept of articles deemed hazardous: Birmingham Fire Ins. Co. v. Kroegher, 2 Nor. 64; Lancaster Fire Ins. Co. v. Lenheim, 8 Nor. 497.</p> <p>The evidence to show that it was customary to keep more than 25 pounds of powder in country stores, and that the defendant company knew that fact at the time of issuing the policjr, was admissible : Franklin Fire Ins. Co. v. Upde-graff, 7 Wr. 350; Citizens Ins. Co. v. McLaughlin, 3 P. F. S. 485; May on Insurance, §§ 177, 233, 239; Wood on Insurance, § 63; Flanders on Insurance, 93; Phoenix Ins. Co. v. Taylor. 5 Minn. 492; Angelí on Insurance, §§ 14, 15; 1 Phillips Insurance, § 489 ; Peoria Insurance Co. v. Hall, 12 Midi 214; Wall v. Howard Ins. Co., 14 Barb., 890; Harper v. Albany Mutual Ins. Co., 17 N. Y. 199; Harper v. New York City Ins. Co., 22 N. Y., 442; Whitmarsh v. Conway Fire Ins. Co., 16 Cray, 359; Lounsbury v. Protection Ins. Co., 8 Conn. 459; Harper et al. v. City Ins. Co., 1 Bosworth, 520.</p> <p>It was in evidence, that the company knew, at the time the proofs of loss were made out and furnished, the quantity of powder on hand at the time of the fire, and made no objection. In the Kroegher case the agent of the company knew of the petroleum, but his knowledge could not bind the company, for he had no authority to waive a positive prohibition in the policy. But the company itself could, and we contend in this case did, waive the limitation of twenty-five pounds.</p>

<p>License to use a certain wharf belonging to a city was granted to A. upon the payment of a stipulated monthly sum for wharfage. The city subsequently passed an ordinance authorizing a railroad company to build tracks along the wharf, and later, to widen said tracks. While thus en-faged, the railroad company removed certain posts from the whai’f, leretofore used for the mooring of vessels, and left a pile of stones and debris deposited thereon. A. notified the city to replace the posts and remove the debris, which it neglected to do, and upon a sudden rise in the river certain rafts belonging to A. and attached to the wharf broke away and were lost. A. brought suit against the city for the damages thus occasioned, and asked the court to charge: That if the jury believed the wharf was under the exclusive control of the city, that the city derived a revenue from it; that A. had paid wharfage for its use to the city, and that the city was guilty of negligence in Slowing stones and rubbish to remain on the wharf after notice, in consequence of which neglect A. suffered loss, then A. was entitled to recover therefor from the city. The court having affirmed A.’s points the jury found for the plaintiff. Held,</p> <p>(1.) That there was no error in affirming said points.</p> <p>(2.) That as between A. and the city, the latter was responsible for its negligence. Whatever A.’s remedy against the railroad company might be, it did not affect the city’s liability to him.</p> <p>(3.) That A. was entitled to interest on his claim as part of his damages.</p> <p>(á.) That A. was not guilty of such contributory negligence as to prevent his recovery. Although he may have had equal opxDortunity of knowing the danger, he was not bound to the same degree of diligence as the city.</p> <p>(5.) That A.’s occupany of the wharf under license from the city, did not relieve the latter from its duty to keep the wharf in repair. There was no analogy between this relation, and the ordinary one of landlord and tenant.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term, 1884, No. 153.</p> <p>This was an action on the case by Christina Foxley by her father and next friend, Jolm Foxley, against the Citizens’ Passenger Bailway Company of Pittsburgh, to recover damages for an injury caused to said Christina, then a child of four years of age, by being run over by a street car of the defendant company on Penn Avenue in Pittsburgh.</p> <p>The material facts of the case, as they appeared on the trial, before Stowe, P. J., are briefly stated in the foregoing syllabus and fully stated in the opinion of this court, where “ the material testimony is cited in detail.</p> <p>The defendant presented the following point:</p> <p>“ That under all the evidence in the case the plaintiff is not entitled to recover.”</p> <p>Answer, “ Refused.”</p> <p>The court submitted the case to the jury under clear instructions relating to the law of negligence in such circumstances.</p> <p>Verdict for plaintiff for $3,000, and judgment thereon. The defendant took this writ of error, assigning for error the refusal of the above point.</p>

<p>The Act of April 20th, 1869 (P. L. 82), provides that it shall be lawful for the Courts of Common Pleas “to change the name, style and title of any corporation within their respective counties,”.“provided, that no proceeding for sueli purpose shall be entertained by the courts until notice of such application is given to the Auditor General, and proof of such fact is produced to the courts.”</p> <p>Held, that said proviso is mandatory and applies to all corporations, religious as well as others, notwithstanding the charters of church corporations are not required by law to be filed in the Auditor General’s office, but are recorded in the local County Recorder’s office.</p> <p>Held, therefore, that it is essential, to give jurisdiction to the Court of Common Pleas to change the name of a church corporation, that it should appear in the record of the proceeding that notice of the proposed application had been given to the Auditor General, as required by said proviso.</p>

<p>Appeal from the Court of Common Pleas No. 2, of Allegheny county: In Equity. Of October and November Term, 1884, No. 119.</p> <p>Appeal of Leland R. McAboy and Mary Ann his wife, in her right, and Robert Woods and Sarah L., his wife in her right, from a decree of said court dismissing a bill in equity filed by them against the Pittsburgh & Connellsville Railroad Company, and Robert Henderson, contractor, and the City of Pittsburgh, to restrain the construction by said railroad company of an extension of their railroad, and of a passenger depot, &c., in front of the complainant’s premises on that part of Water street known as the Monongahela Wharf, between ’ Grant street and Smithfield street.</p> <p>After answer filed, the parties filed an “ Agreed statement of Facts,” in which the following facts, in substance, wore set forth:—</p> <p>Water street in the City of Pittsburgh as originally laid out, extended along the river front of the Monongahela River (which there runs east and west), and included all the land between a certain lino parallel with the river and low water mark. In pursuance of an ordinance of said city passed in 1886, the northernmost part of said land composing Water street was graded to a level, and paved, for use as the street proper, of the width of 35 (now 47) feet, measured from the north line thereof; and the remainder of said land (divided from the street proper by a line known as the “ Wharf Line ”), 227 feet in width, was graded at a regular descending grade of 16 feet to the 100 feet from the “wharf line ” to the line of low water mark, and uniformly paved — this portion, extending along the immediate river front, is known as “ Monongahela Wharf,” and is used by steamers and boats as a landing place, and by Act of April 15th, 1851 (P. L. 708), said Monongahela Wharf was declared to be a public landing, under the control of the city councils.</p> <p>The plaintiffs own a house and lot of ground situate on the north side of Water street, between Grant and Smithfield streets — both these streets run north and south into Water street.</p> <p>The terminus of the Pittsburgh and Conn ells ville Railroad, as provided in its charter, has heretofore been at the foot of Grant street abutting on the Monongahela River. Said railroad company has begun the construction of an extension westwardly from its terminus, consisting of an elevated double track railroad 50 feet in width, and proposes to extend the same westwardly along, upon and over said Monongahela Wharf between Grant street and Smithfield street, in front of plaintiff’s property, and to construct a passenger station near the abutment of the Monongahela bridge (Smithfield street continued). The distance between the line of plaintiff’s lot to the nearest point of said proposed structure is 148 feet; the distance from the “ wharf line ” to the structure is 96 feet, and the distance from plaintiff’s building to the “ log line ” or low water line, is 274 feet.</p> <p>The general features of the case are illustrated in the accompanying Plan, as shown on p. 550.</p> <p>It was admitted, for the purposes of this case, that the proposed extension and structures would cause damage to the plaintiff’s property.</p> <p>The defendant company claims the right to construct said works, under its charter and supplements thereto, and espe-</p> <p>cially by virtue of the following Act of Assembly and ordinance of city councils, viz. :</p> <p> </p> <p>(1) Charter of said company by Act of April 3d, 183T, investing them with the right of eminent domain, and the several supplements thereto.</p> <p>(2) Act of April 15th, 1869, entitled “ An Act to authorize Select and Common Councils of the city of Pittsburgh to vacate streets and alleys in said city,” and providing as follows:—</p> <p>“Section 1. That the select and common councils of the city of Pittsburgh be and are hereby granted full power and authority to make and enter into a contract or contracts with the Pennsylvania Railroad Company, the Pittsburgh, Ft. Wayne & Chicago Railway Company, and the Allegheny 'Valley Railroad Company, or either of them, or Pittsburgh •& Connellsville Railroad Company, whereby public travel may be rendered more safe' in said city, and the depot property of said companies, or either of them, may be •enlarged and made to afford greater facilities for the receipt and shipment of merchandise, and the general comfort of the traveling public.</p> <p>“Section 2. That said councils, for the purpose of enabling said contract or contracts to be carried out, shall have and are hereby given authority to vacate and close np the whole or any portion of any streets or allej's in said city, and generally to do such acts and pass such ordinances as they deem expedient for the purposes aforesaid; Provided, however, That no street or alley, or portion of the same, as aforesaid, shall be vacated or closed up, unless the said companies, or either of them, shall first acquire, by purchase or otherwise, the property fronting on both sides of the street or alley, or such portions thereof that may be vacated or closed up.” (P. L. 965).</p> <p>(3) Ordinance of the Select and Common Councils of the city of Pittsburgh passed June 20th, 1870, entitled “An Ordinance authorizing the Pittsburgh & Connellsville Railroad Company to erect a Passenger House or Depot upon a certain portion of the Monongahela Wharf,” and providing—</p> <p>“ Section 1. That the Pittsburgh & Connellsville Railroad Company be and they are hereby authorized to erect a Passenger House or Depot, with two tracks and their accompanying platforms, upon that portion of the Monongahela Wharf which lies between the eastern side of Smithfield street and the eastern side of Grant street. Provided hoiuever, and the authority hereby granted is only to take effect upon condition that the structure of said Depot shall be supported by piers composed of rows of Iron Pillars founded on masonry not to exceed two feet in thickness; said piers to be longitudinally one hundred feet apart for a distance of four hundred feet from the oast side of Grant street, and thence for a distance of about sixty feet to be not less than twenty feet apart lengthwise of the building, and that thence for a distance of about seventy-six feet to the east side of Smithfield street; and the said Pittsburgh & Connellsville Railroad Company shall have the right to extend the front of the Suspension Bridge abutment that distance (seventy-six feet) by a wall of masonry, and thence by a similar wall at right angles to the first towards Water street, said walls to enclose a space to be filled in and paved as a Carriage Drive, leaving a sufficient width in front of Water street for the thoroughfare to the River; and that the said Company make their Passenger House fronting on said Carriage Drive of two stories in height, not exceeding seventy-five feet in length; the remainder of said building to be one story. The under side <d‘ the structure supporting said house to be not less than fourteen feet in clear height from the surface of the wharf on the upper side of the house at the east side of Grant street, and not less than nineteen feet at the distance of four hundred feet therefrom aforesaid; and Provided, also, that the strip or portion of the wharf covered by said structure shall not exceed Fifty feet (50 feet) in width, and that the roof of said building shall be composed of iron or slate, and that in other respects due precautions be taken against fire.</p> <p>“ Section 2. That the Railroad Company is also required to provide stages to facilitate the discharge of river freights from boats when the height of water and the position of the tracks hereby authorized to be built shall render the same necessary.</p> <p>“ Section 3. That for and in consideration of the privileges herein granted the said Railroad Company shall be held and bound to pay annually to the City Treasurer for the use of the city the sum of Three Thousand Dollars, in semi-annual payments. The first of said payments to be made at the end of nine months from the time the said company shall begin work on the ground. That this ordinance shail be held to grant such rights as the city of Pittsburgh may legally confer and no more.”</p> <p>The defendant company accepted the terms of said ordinance. If the court shall be of the opinion that the said defendant company has the legal right to construct the said passenger house, depot and tracks in the manner proposed, against the will of plaintiffs, and with or without making compensation to them, then, a decree to be entered in favor of the defendants, dismissing the bill; otherwise, decree to be entered in favor of the plaintiffs restraining the defendant company from proceeding with the construction of the proposed improvement; reserving the right to either party of appeal to the Supreme Court; also reserving to the plaintiffs all remedies for the assessment and collection of such damages as they may be entitled to receive.</p> <p>At the argument, counsel for the railroad company, in addition to the Act of April 15th, 1869, above quoted, relied on the Act of April 1st, 1868 (P. L. 547), which authorized said Pittsburgh and Connellsville Railroad Company, at any time thereafter, “to survey, locate and construct one or more branches of railroad, extending from any point or points in any county through or in which the said main line passes, or in any adjoining county, with a view to the development of the territory within said limits, and furnishing an outlet for its productions.And the said company shall have the same rights, privileges and powers, in respect to the location, construction and management of each and all of said branches, and the operating thereof, as are conferred by their charter, and all supplements thereto, in regard to its main line of railroad.”</p> <p>Also, the Act of June 9th, 1874 (P. L. 282), which provides :—</p> <p>Section 1. Be it enacted, c., That the proper authorities of any county, city, town, or township of this State respectively, be and they are hereby authorized and empowered to enter into contracts with any of the railroad companies whose roads enter their limits, respectively, whereby said railroad companies may re-loeate, change, or elevate their railroads within said limits or either of them, in such manner as in the judgment of such authorities, respectively, may be best adapted to secure the safety of lives and property, and promote the interest of said county, city, town or township, and for that purpose the said authorities shall have power to do all such acts as may be necessary and proper to effectually carry out such contracts, and any such contracts made by any railroad company or companies, as aforesaid, with said authorities, or either of them, are hereby fully ratified and confirmed. Provided, &e.</p> <p>The cause was argued before EwiNG, P. J., and White, J., and the following opinion and decree was afterwards filed:</p> <p>The original charter of the defendant company locates its western terminus at the foot of Grant street, Pittsburgh, on the Monongahela river. Then and now from Grant street to the junction of the Monongahela river, with the Allegheny, a strip of land about 250 feet in width, was and is used as a public street and wharf, dedicated to the use of the lot holders and the public by the proprietors of the town, by the city councils and by Act of Assembly.</p> <p>The defendant company seeks to extend the terminus of its road to Smithfield street, by extending its tracks across Grant street and Cherry alley, along the public wharf, and building a depot on the wharf between Cherry alley and Smithfield street.</p> <p>We agree that this proposed extension is in no sense a branch road, such as is contemplated in the Act of Assembly, approved 1st of April, 1868. (P. L., page 547.)</p> <p>It is claimed by the defendant company that the Act of Assembly, approved 15th of April, 1869, (P. L., page 965,) entitled, “ an Act to authorize the Select and Common Councils of the city of Pittsburgh, to vacate streets and alleys in said city,” and the ordinance of said councils passed 20th June, 1870, set out in the statement of facts, is sufficient authority for the extension of defendant’s road and its occupancy of the wharf therefor.</p> <p>On this vital question the court is divided in opinion. The necessary result of this division is that the bill must be dismissed.</p> <p>And now, 23d June, 1884, after argument of counsel and upon consideration, (the court being divided in opinion,) the bill of complaint is dismissed at costs of complainants.</p> <p>Per Curiam.</p> <p>The complainants took this appeal, assigning for error the above decree.</p> <p>It is settled that a railroad company cannot occupy with its tracks a public street or highway in a city, without legislative sanction ; the city alone cannot grant it such power: Phillips v. Dunkirk R. R. Co., 78 Pa. St. 177; Atty. Gen. v. R. R. Co., 32 Leg. Int. 238; Phila. and Trenton R. R. Co. Case, 6 Wh. 25. The Act of April 15th, 1869, does not authorize councils to grant, or the company to use, the highway as they propose to do. That Act, as shown by its title and its enacting clauses, authorizes councils to close up streets or alleys and contract with the company for the enlarging of their depot facilities, provided the company purchases all the property fronting on both sides of such vacated streets, whereby public travel may be rendered more safe. But it does not authorize the use of the wharf or street as here proposed. Such an occupation would not be the abolition of a street, but a monopoly of it. Besides wharves were not within the contemplation of the Act; wharves do not have “ property fronting on both sides,” and no provision is made for compensation to those whose property abuts on them.</p> <p>A wharf is a highway, and the argument that if is not a street is a mere play upon words ; names cannot alter things ; in fact the Monongahela wharf alwaj'S was, and still is a part of Water street, and it is not the less a street because it has the river as a boundary. This has been judicially determined: Com’th v. McDonald, 16 S. & R. 390; Barclay v. Howell, 6 Pet. 498; see also Barney v. Keokuk, 94 U. S. 324; Cook v. Burlington, 36 Iowa 357; N. O. & C. R. R. Co. v. New Orleans, 26 La. Ann. 517. The Act of 1869 is a full warrant for the grant by councils. In its first section it provides that councils may contract with the railroad company whereby its depot property “ may be enlarged and made to afford greater facilities for the 'receipt and shipment of merchandize and the general comfort of the travelling public.” In its second section, councils are given authority not only to vacate streets, but “ generally to do such acts and pass such ordinances as they deem expedient for the purposes afore* said.”</p> <p>Wo contend, further, that if there were no previous legislative authority for. the passage of the said ordinance, yet, its enactment was ratified and confirmed by the Act of June 9th, 1874. (P. L. 282.)</p> <p>We submit, also, that this extension of the main line beyond its original terminus is a “branch” railroad within the Act of April 1st, 1868. Such was the construction of a similar Act in Western Penna. R. R. Co.’s Appeal, 3 Out. 155. A similar Act was similarly construed in Pittsburgh v. Penna. R. R. Co., 48 Pa. St. 359. The fixing of the termini of the branch is entirely within the discretion of the president and managers of the company: Getz & Co.’s Appeal, 10 W. N. C. 453; C. & P. R. R. Co. v. Speer, 56 Pa. St. 332. And if the terminus ad quem of the branch is so fixed as to make it necessary or reasonably convenient in order to reach it, to build the branch along or upon a public highway, it may be done: Pittsburgh v. P. R. R. Co. supra ; Black v. Phil a. & Reading R. R. Co., 58 Pa. St. 252; C. & P. R. R. Co. v. Speer, supra ; Com’th v. Erie & N. E. R. R., 27 Pa. St. 339; Getz & Co.’s Appeal, supra.</p> <p>It is insisted that this elevated road from Grant street to Smithfield street is not a “ branch ” within the meaning of the Act of April 1st, 1868, but just why it is not has never been explained. Is it because it is not long enough ? If so, how much longer down the river must we run 'it in order to make it a branch? Would it be a branch if it were a mile long, and not a branch if it is five hundred feet long. Who has established length as a criterion of a branch railroad ? Is it not a branch because it is elevated? Who has said that a branch must be on the surface of the ground? Is it not a branch because it extends from the present terminus of our main line to and into a new passenger depot ? Why must a branch not extend to a new passenger station erected for the accommodation of the public traveling by the old main line ? In Getz’s Appeal, supra, the branch extended from the main line to a private iron mill. Does the purpose to reach a private factory make it a branch, and to reach a public depot, make it not a branch ? It was said in the court below it could not be a “ branch,” because it is proposed to cover the tracks b}'’ a shed. What legal principle requires a branch railroad to be exposed to the weather? In short, why should a “branch” be anything else than just precisely what this road will bo from Grant street to Smithfield street? No valid reason can be assigned why this railroad should not come fairly within the intendment of the Act of April 1st, 1868, as a branch railroad.</p>

<p>Appeal from the Court of Common Pleas No. 1, of Allegheny county: In Equity : Of October and November Term, 1884, No. 144.</p> <p>Appeal of George Thompson from a decree of the said court restraining him by injunction from bringing any action of ejectment against the appellees for certain premises, and ordering him to deliver up, to be cancelled, a certain sheriff’s deed.</p> <p>This was a bill in equity, filed by Samuel B. McElroy and Sarah B., his wife, in lier right-, against George Thompson, averring substantially, inter alia, as follows : Under a judgment obtained in 1875 against Samuel B. McElroy a certain tract of land fronting on Hiland avenue, in the City of Pittsburgh, containing about eleven aeres, was levied upon as the property of said Samuel B. McElroy and sold at sheriff’s sale as his property on December 15th 1877, to George Thompson, and a sheriff's deed executed to him therefor. Thompson brought an action of ejectment against the present plaintiffs in 1879, on the trial of which, in June, 1880, after the evidence on both sides was in, and the court bad charged the jury, said Thompson suffered a voluntary nonsuit. In August, 1880, be brought a second action of ejectment on the trial of which in March, 1883, after the court bad charged the jury, he also suffered a voluntary nonsuit. In each ease the plaintiff’s abstract of title filed showed that the said sheriff’s deed was the foundation of his claim.</p> <p>The complainant, Sarah B. McElroy averred, that the said tract of land on Hiland avenue was her separate property, purchased by her during coverture with moneys of her separate estate, acquired by her in the manner fuily set forth in the bill, independently of her said husband ; that her husband had no title or interest in said real estate, and therefore, no title whatever passed to George Thompson by said sheriff’s sale thereof under the judgment against her husband.</p> <p>That the respondent intends and threatens to bring another action of ejectment, based upon exactly the same title as he set up in the two prior actions of ejectment, and threatens to continue to annoy and vex the complainant by repeated actions of ejectment in order to compel her to pay him a large sum of money for his pretended title.</p> <p>That by these means the respondent has cast a cloud upon the title of the complainant, Sarah B. McElro3r, which prevents her from disposing of the property, or from obtaining advances on the credit thereof with which to pay interest on certain incumbrances which are overdue, whereby she is liable to lose the same.</p> <p>The complainant, averring that she had no adequate relief at law for the injuries threatened (she being in possession of the premises), prayed equitable relief, as follows :</p> <p>(1) That your Honors will now, by preliminary injunction, hereafter to be made final, restrain and enjoin the said respondent from bringing or instituting any further or other action of ejectment for the said property, by virtue of the said pretended title by him procured by reason of the sheriff’s deed aforesaid, made to him on the sale upon the judgment obtained against the said Samuel B. McElroy.</p> <p>(2) That your Honors will decide and decree that the said George Thompson, the respondent, has no title to or right or interest in the said Hiland avenue property, and that the said deed to him by the sheriff for said property, as the property of Samuel B. McElroy, conveyed no right, title or interest therein, or any part thereof, to the said George Thompson as against your oratrix.</p> <p>(3) General relief.</p> <p>Defendant demurred to the bill for want of equity, and because the title to real estate between parties claiming adversely cannot, within the statutory period of limitation, be determined by decree on a bill in equity.</p> <p>The demurrer having been overruled by the court, the defendant filed an answer denying certain averments of the' bill, and answering, inter alia, as follows:</p> <p>Sixth. I admit that nonsuit was taken in my suit at 603 September Term, 1880, for the reason, among others, that I failed to obtain material evidence in my behalf, which I hope yet to procure. I was not ready for the trial and was not present thereat. And I deny complainant’s allegation that I threaten to annoy her by repeated actions of ejectment to compel payment to me of a large sum of money for my title. I maintain my claim in good faith, because I believe Samuel B. McElroy had an interest in said property so purchased by me as his at sheriff’s sale.</p> <p>Seventh. I deny the inferences and legal conclusions asserted by complainant, and aver that I believe I have a good ground for my claims, and that my proceedings are not malicious.</p> <p>Eighth. I further submit that all the matters complained of in the bill are determinable at law, and that complainants are not entitled to any relief therein in a court of equity; that the title to the land in dispute is triable only by ejectment in a court of law, to which action I have an absolute right; that this court has no power by law to grant the prayers of the bill, and has no jurisdiction over the subject matter; and 1 ask to have the same advantage of this answer as of a plea or demurrer to the bill; and pray to be hence dismissed, &c.</p> <p>The cause was referred to William S. Pier, Esq., as Examiner and Master, who filed a report, wherein, after reciting' the contents of the bill, demurrer and answer, he reported the facts and his conclusions of law as follows:</p> <p>1. That the plaintiff, Sarah B. McElroy, at the time of her marriage in 1852 with Samuel B. McElroy, her eo-plaintiff, was seised in her own right of a separate estate.</p> <p>2. That said separate estate consisted of a tract of land in Venango county, in this state, known as the Hickorytown lands, comprising about 2,800 acres; of an undivided one sixth interest in a tract of land in Allegheny county, afterwards known as the Knox fruit farm ; and of an undivided one sixth interest in another tract in Allegheny county, fronting on the south side of the Monongaliela river, and now within the city of Pittsburgh.</p> <p>8. That she became seised of the said Venango county land by devise from her father, who died testate in 1884; and of the Allegheny county lands, by descent from her mother, who died intestate in 1850, leaving six children surviving.</p> <p>4. That plaintiff, Sarah B. McElroy, conveyed the Venango county laud in 1855 for a consideration of six thousand dollars, secured by promissory notes, which were renewed from time to time until about 1860.</p> <p>5. That about 1860 she loaned to her husband, plaintiff Samuel B. McElroy, about eight thousand dollars, being the avails of the sale of the Venango county land, principal and interest, upon a parole agreement between them that he should apply the same when she should require it for tbe purchase of a home.</p> <p>6. That in 1859 Sarah B. McElroy conveyed her interest in the Knox fruit farm, pursuant to an agreement that in consideration thereof her interest in the Monongahela river tract should be increased to an undivided one half.</p> <p>7. That this agreement was executed, and in 1867 upon the sale and conveyance of the said Monongahela river tract, one half of the consideration of forty thousand dollars, to wit, a purchase money mortgage for twenty thousand dollars was taken by said Sarah B., in the name of her husband, Samuel B. McElroy.</p> <p>8. That this mortgage was sold by Samuel B. McElroy, August 81st, 1867, for the sum of $19,892.98, which sum was retained bjr him under agreement with his wife that he should repay himself thereout advances made by him for her in the purchase by her of a tract of land in the Twentieth ward, city of Pittsburgh, arid should apply the balance, whenever she should require it, to pay for a home.</p> <p>9. That on April 7th, 1866, plaintiff, Sarah B. McElroy, purchased and took in her own name a tract of land in what is now the Twentieth ward of the city of Pittsburgh, paying therefor a consideration of twenty-five thousand dollars.</p> <p>10. That of-this purchase money, $10,000 was paid in hand at the delivery of the deed, and the balance was secured by two mortgages on the land, made by herself and husband— one being for' $11,000 and the other for $4,000.</p> <p>11. That of the said hand money, about $8,000 was paid for Sarah B. McElroy by her husband out of her moneys in his hands, derived from the sale of the Venango county land, and the balance of about $2,000 was advanced by him for her.</p> <p>12. That at this time, to wit, April 7th, 1866, the said ‘Samuel B. McElroy was in good financial condition, and was worth, over and above his liabilities, more than one hundred thousand dollars.</p> <p>13. That the said advance of about $2,000 and the said purchase money mortgages of $11,000 and $4,000 were all paid out of the proceeds of said Sarah B.’s interest in the said Monongahela tract.</p> <p>14. That on March 22d, 1870, said Sarah B. exchanged said Twentieth ward tract for another in the Nineteenth ward of said city (to quiet the title to which this bill was filedj and gave in addition therefor, beside the said Twentieth ward tract, eight thousand dollars.</p> <p>15. That she paid this $8,000 out of money which she borrowed on the security of a mortgage of the said Nineteenth ward tract, which she and her husband, Samuel B. McElroy, executed August 3d, 1870.</p> <p>16. That the said Nineteenth ward tract, to quiet the title to which the bill in this case has been filed, was purchased by said plaintiff, Sarah B., was paid for out of her separate estate, and that not any of the said land, and no portion of the consideration therefor came to her from her said husband.</p> <p>17. That the deed to her of said Twentieth ward tract and of said Nineteenth ward tract, and all the other deeds of conveyance and mortgage of land in Allegheny county referred to in the bill were duly recorded in the Recorder’s office of said county, and the will of said Sarah B.’s father was duly proved and registered in the Register’s office of said county.</p> <p>18. That immediately after the purchase thereof, on March 22d, 1870, said Sarah B. entered into possession of said Nineteenth ward tract, and by herself or her tenants, lias ever since been, and is now, in possession thereof.</p> <p>19. That defendant, George Thompson, on December 15th, 1877, took a sheriff’s deed of all the right, title and interest of said Samuel B. McElroy in said Ninteenth ward tract.</p> <p>20. That said George Thompson brought his action of ejectment on said sheriff’s deed, against the plaintiffs in this case and others, to No. 467 March Term, 1879, in this court.</p> <p>21. That said action was brought to trial June 2d, 1880, and the next day, after both sides had put in all their testimony, after counsel had addressed and the court liad charged the jury, and after they had retired, said George Thompson took a voluntary non-suit.</p> <p>22. That on August 28th, 1880, said George Thompson, the defendant, brought a second action of ejectment in this court, to No. 603, September Term, 1880.</p> <p>23. That said action was brought to trial March 12th, 1883, and on the following day, after both .sides had put in all their testimony, after counsel had addressed and the court had charged the jury, and after the jury had retired, said George Thompson took a voluntary non-suit.</p> <p>23 a. That both actions of ejectment brought by said George Thompson against said Samuel B. McElroy and Sarah B., his wife, for the said Nineteenth ward land involved the same questions, were based upon the same sheriff’s deed; that the plain tiff’s abstract of title in both the said actions was the same; .that the issue joined in each was the same; that the witnesses and testimony in each were substantially tlie same; and that the defence of said McElroy and his wife in each action was the same. And further, that the threat of another action of ejectment made by said George Thompson is based upon the same sheriff’s deed as his two former actions aforesaid.</p> <p>28 h. That the sheriff’s sale and deed, which supplied the foundation of these ejectments, were obtained upon an execution against Samuel B. McElroy sur judgment against him in favor of the Tradesmen’s National Bank of Pittsburgh, recovered in an action on a promissory note, whereof said Samuel B. was the maker and one James Briar was the indorser.</p> <p>24. That said bank also recovered judgment on said note against said indorser.</p> <p>25. That the defendant was the assignee for the benefit of the creditors of said indorser, and as such paid into court on said judgment $8,652.98.</p> <p>26. That to make said payment into court, said defendant advanced of his own moneys more than $2,000, which is still owing to him.</p> <p>27. That said defendant claims said Samuel B. McElroy is indebted to him in $8,600 or $3,700, made up of the said advance of over $2,000, his purchase money to the sheriff for his deed, and his expenses.</p> <p>28. That the plaintiff, Sarah B., was in no manner connected with said judgments in favor of said bank, or liable for or upon the promissory note upon which they were obtained, or to said defendant for said claimed indebteness of her husband to him.</p> <p>29. That said defendant brought the said ejectments to compel the payment of the said claimed indebtedness of said Samuel B. to him.</p> <p>30. That said defendant, by means of said sheriff’s deed, and by threats, has vexed and annoyed plaintiff.</p> <p>31. The said defendant intends, and has threatened, to bring another action of ejectment against these plaintiffs, upon the said sheriff’s deed and for the same land.</p> <p>32. That the said sheriff’s sale and deed, the said ejectment brought thereon, and said threats made by said defendant, have cast a cloud upon said plaintiff, Sarah B.’s, title to said land.</p> <p>33. That the said land is encumbered with two mortgages, aggregating more than $23,000, both of which are due, and upon one of which foreclosure proceedings have been threatened, and plaintiff, Sarah B., because of said cloud upon her title, is unable to borrow money thereon, and she has not sufficient means of her own to pay the same, and is in danger of losing said land by reason thereof.</p> <p>34. That defendant, George Thompson, at the time of the trial of his first ejectment, was prepared to produce and did produce all the evidence that he knew to exist and which he thought material and relevant to his case, and that he has not since learned and does not now know of any other and further evidence to support his claim.</p> <p>Counsel for the defendant have strenously insisted before the Master that the court have no jurisdiction over a bill like this, or to decree the relief here prayed for, for the reason that the dispute between the parties is as to the title to land which can only be settled by trial at law, and that he, the defendant, can seek his redress at law at any time ho may think proper within the period when the statute of limitations will bar him.</p> <p>If the defendant did maintain his claim to the land in good faith; if he sought to recover it, relying upon and believing in the strength of his title, and if he had not already sought and secured full opportunity to obtain his redress and trial at law, his position would be unassailable. Mere neglect to assert his title could not prejudice his right to a common law action at any time he chose to seek it within the period of limitation. But if he uses his deed and ejectment thereon for an ulterior purpose, and not merely to recover the property; if by it he seeks to extort from the fears and vexations of the wife payment of her husband’s debt, then his conduct is unlawful and perhaps fraudulent (Mayer v. Walter, 64 Pa. St. 286), and is a proper object for the exercise of the chancery powers delegated to the courts by the Acts of 1836, 1840 and 1857.</p> <p>Now, the evidence of the defendant himself was that his object in bringing bis actions of ejectment and in maintaining bis claim to the land was to collect some S3,600 or S3,700 which Samuel B. MoElroy owed him. But ejectment is not a remedy for the collection of debts, and cannot be lawfully employed to extort their payment. It is manifest, therefore, that the defendant has not maintained his claim to this land in good faith, but that bis conduct in harassing the wife of his alleged debtor by two ejectments on a title which the evidence before the Master shows clearly to be worthless, in taking non-suits after putting in all the evidence within his power and knowledge, in asserting that be would continue to harass her in the same manner, and in demanding money as the price of peace under the cloak of purchasing his title, was fraudulent, and gives a right to the wife to seek aid from a court of equity: Lyon’s Appeal, 11 P. F. S. 15.</p> <p>The evidence produced shows that defendant’s claim upon his sheriff's deed has been and is a serious cloud upon the title of Sarah B. McElroy, the plaintiff, and lias rendered it so unmarketable that it is in danger of being sacrificed to satisfy encumbrances against it. Bills of peace, to remove clouds from title constitute a well defined and long established branch of equity jurisprudence. Says Story in his work on Equity Jurisprudence, 12th Ed. § 711: “ It is very common in courts of equity to entertain suits for the purpose of removing a cloud resting upon the plaintiff’s title. This is done upon the ground that it is for the interests of both parties that the precise stat.e of the title be known if all are acting bona fide; and if not, that a merely colorable and pretended claim is a fraud upon the real owner, and as such should be extinguished.” See also High on Injunctions, § 372. But the counsel for the defendant contend that unless the legislature have explicitly delegated such power to the Courts of Common Pleas, we in this state are without any such jurisdiction, and they deny that such ever has been delegated. But whether it ever has been delegated or not, the Supreme Court said in Pollard v. Shaffer, 1 Dali. 210, and again in Jordan v. Cooper, 3 S. & R. 578, that “Equity is part of the law in Pennsylvania,” and therefore there must be somewhere jurisdiction to remove a cloud from a title. In this connection the paragraph just quoted from Story offers a solution. “If the parties act in good faith,” he says, “ it is to both their interests that the precise state of the title be known.” This then could be ascertained here by having a verdict and judgment in ejectment at law. But if one of the parties has only “ a colorable and pretended claim, then it is fraud upon the real owner.” The Acts of 1840 and 1857 have conferred upon the Courts of Common Pleas, first in Philadelphia and then throughout the state, chancery jurisdiction over frauds. The Master is of the opinion that the evidence adduced before him shows that this court has jurisdiction of this case upon this ground, to wit, that the defendant’s claim of title is col-orable only, and therefore a fraud upon the real owner, Sarah B. McElroy.</p> <p>Many authorities were cited by the defendant’s counsel at the argument before the Master, all of which he has carefully examined. None of them, in his judgment, in any manner decide that a court of equity in Pennsylvania would not take cognizance of such a case as this, and decree the relief prayed for. Several of them, and notably Craft v. Lathrop, 2 Wall. Jr., 103, and Lyon’s Appeal, 11 P. F. S. 15, he regards as strong authority in support of the bill. In Craft v. Lathrop, the Ü. S. Circuit Court in this district, a defendant was restrained who claimed, as is done here, that he could not be deprived of his right to bring as many ejectments as he pleased until there had been two verdicts and judgments for the same party, he having in former trials taken non-suits. But the court enjoined him. In Lyon’s Appeal a wife owned land subject to mortgage. Judgments were recovered against her husband, creditors alleging the land to be his. They bought the mortgage, issued execution on it for the purpose of securing tbeir judgment. The court enjoined the creditors from proceeding until they should execute an assignment to the wife on payment of the debt, interest and costs; for, although they had a right to execution on the mortgage at law, equity will look to the use to be made of the power, and if it be aside from the legal right to have satisfaction, will restrain the improper use.</p> <p>Barclay’s Appeal, 12 Norris 50, was the ease upon which defendant most relied. There the plaintiff was the owner of a warehouse and lot, and after he purchased it a lot of machinery remained there, the property of its former occupants, whom he notified to remove it, and received a reply threatening to hold him responsible for the defendant’s interest in the machinery and real estate. He asked the court, among other tilings, to decree that he had a good title. The Supreme Court dismissed the bill, reversing the lower court, saying, among other things: “ If there is anything certain in the equity practice of Pennsylvania, it is that a court cannot by bill bring before it parties having adverse claims to land, and between whom there are no relations of trust or contract, and settle their several titles by decree. If it be said that Grove was in possession, and therefore could not bring ejectment in order to test the appellant’s claim, it may be answered tlie goods of the partnership were upon tile premises before his entry, and if either of tlie partners claimed to Iiavt) them there of right, there was nothing to prevent the appellee from testing that right by ejectment.” But in that case there was no fraud, no title, even colorable, exhibited to the court, and tlie facts sliown in tlie bill as pointed out by the court, gave them a remedy by bringing ejectment at law. “The truth of the case seems to be,” said the court, “ that the appellee, alarmed by Barclay’s ambiguous threat, has endeavored to interpose the decree of a court between himself and the possible consequences of the exercise of his own right. This, however, he cannot do. A trustee may seek the advice and protection of a court of equity, but such is not the right of an ordinary person. Such a one must take tlie risk of an assertion of his own rights, or leave them unasserted.”</p> <p>In Winch’s Appeal, 11 P. F. S. 421, there was a dispute between a wife and her husband’s creditor as to her title to land. She prayed an injunction against its sale on execution against her husband, which was granted after hearing before a Master, where the proof was not at all conclusive. The Supreme Court reversed, because “ it is only when the creditor is proceeding clearly and undeniably against right and justice to use the process of the law to the injury of another, that equity interferes to stay his hand.” None of tlie other cases cited seem to the Master to bear upon the questions involved in this case, and he therefore forbears reviewing them here.</p> <p>The Master being of the opinion that the relief prayed for should be granted, returns herewith the form of a decree to that end, which he respectfully recommends to the court.</p> <p>The defendant filed numerous exceptions to the Master’s findings of fact and conclusions of law, among others, the following: Defendant excepts to all the Master’s findings of fact as questions entirely for a jury. The Master erred in finding (No. 36)’ that the tract in question was paid for out of the wife’s separate estate and none of the consideration came from her husband. The Master errs (in his discussion on question of jurisdiction), in inferentially and hypothetically assuming facts not found, and that could not be found from the evidence, such as bad faith in defendant, want of confidence in his title, attempts to extort, threats to harass, demand of money as price of peace, unlawful and fraudulent conduct. -And errs in his conclusion in favor of the jurisdiction in equity claimed by plaintiff. He also errs in holding or reporting that this proceeding, as a bill of peace, is within equity jurisdiction in this state. He errs in reporting that defendant’s title is a fraud and therefore within equity jurisdiction.</p> <p>The court filed no opinion on the exceptions, but according to the form -reported by the Master, entered the following decree:—</p> <p>“ And now, July 1st, 1884, the above named cause came on to be heard upon bill, answer and proofs, and upon the Master’s report and exceptions thereto, and was argued by counsel, and upon consideration thereof it is hereby ordered, adjudged and decreed that all the exceptions to said report be, and they are hereby, overruled, and that the defendant, George Thompson, be forever restrained and enjoined from bringing any action'of ejectment against the plaintiffs, Samuel B. McElroy and Sarah B. McElroy, his wife, or those claiming under them, or under the said Sarah B., upon or by virtue of the sheriff’s deed made to said George Thompson by virtue of a sale to him on execution levied upon a judgment recovered against said Samuel B. McElroy by the Tradesmen’s National Bank of Pittsburgh, in this court at No. 1058 of December Term, 1871, for the lot of ground on which are erected two brick dwelling houses, two stables and other valuable improvements, situate in the Nineteenth ward of the city of Pittsburgh, Allegheny county, Pennsjdvania, bounded and described as follows :..... And it is further ordered, adjudged and decreed that the said George Thompson has no right to, or right or interest in, the said described, land, and that the said sheriff’s deed to him conveyed no right, title or interest therein, or any part thereof; and it is further ordered, adjudged and decreed that the said defendant, George Thompson, forthwith deliver up to the court, to be cancelled, the said sheriff’s deed, and that he pay the costs of this suit, including a Master’s fee, which is hereby taxed at one hundred and fifty dollars.”</p> <p>The defendant thereupon took this appeal, assigning for error the overruling of his said exceptions to the Master’s report, and the above decree.</p> <p>The radical error of the court below was in entertaining equity jurisdiction of the case. Nothing is better settled in Pennsylvania than that where two persons assert conflicting legal titles to land the remedy is at law. This principle has been recently forcibly stated by Mr. Justice GORDON in the following language : “ If there is anything certain in the equity practice of Pennsylvania it is that a court cannot by bill bring before it parties having adverse claims to land, and between whom there are no relations of trust or contract, and settle their several titles by decree. We know of no power in equity or elsewhere by which the owner of an adverse title can be called into court by the party in possession to assert and defend that title, on penalty of forfeiture should he refuse to do so. While this might be a convenient and speedy method to settle title, the Statute of Limitations interposes, and a claimant cannot be compelled to assert his right or test his claim within a time less than the statutory period ” : Barclay’s Appeal, 12 Norris 50. To the same effect are North Penna. Coal Co. v. Snowden, 6 Wr. 488 ; Long’s Appeal, 11 Norris 171. The action of the court cannot be sustained on any assumption of fraud, for there is no fraud charged in the pleadings: Brightly’s Equity, p. 72, § 57. It cannot be on the allegation that appellant’s title was obtained contrary to law. A creditor has a right to sell whatever right he believes the husband has in property standing in the wife’s name. Equity cannot be used to obstruct the creditor in the collection of his claim: Winch's Appeal, 11 P. F. S. 424. The creditor in this case lawfully selling, the purchaser lawfully bought. Consequently his title was not obtained contrary to law. The recital of facts by the Master, as showing unlawful and fraudulent conduct in appellant, is not supported by the evidence. There was no proof of anything said or done by him showing bad faith, want of confidence in his title, attempts to extort, threats to harass, or demands of money as price of peace. But from all that appears he acted in the conscientious belief that the husband, whose title he bought, bad an interest in that property, and that he sought to establish by his proceedings. The Statute of Limitations allows him ample time within which to test it, and if he brings the actions the law allows, and from want of sufficient preparation chooses to take non-suit, the costs fall upon himself, the loss is his own; nothing is thereby determined against him. Equity jurisdiction in Pennsylvania depends on express statute: Dohnert’s Appeal, 14 P. F. S. 311. It has not made such strides as to take from the holder of an adverse title the right to have the facts tried by a jury.</p> <p>But even assuming the jurisdiction, the bill should have' been dismissed on the Complainant’s own showing. The facts found by the Master — as distinguished from his inferences from facts and his assumptions of facts — instead of making out a clear case of exclusive ownership and title in the wife, make out a clear case to the contrary. The entire evidence of the plaintiffs themselves, taking it as true, shows that the property, the title of Samuel B. McElroy in which was sold to the appellant, was not purchased by the means of Mrs. McElroy alone. They allege that she realized in 1855 from sale of her Venango property $6000 in notes. Those were given by.her to her husband, to be used in his business, that of dry goods merchant, and the amount to be repaid to her, when she should want it to buy a home. There was no agreement that he should pay her interest. He says that by extensions and renewals of the notes he, in the course of some years, along in 1858, ’59, ’60, ’61, realized therefrom $2000 more. That he must have made by his skillful handling of the paper, obtaining evidently even more than legal interest. That income from the notes his wife did not and could not claim under 'their arrangement as hers. It belonged to himself. Then she had not more than $6000 in her husband’s hands from that source. She got no more means from any source until August 27th, 1867, when they allege the sum of $19,892.98 was received for her by her husband, being the proceeds of sale of an interest she had in Allegheny county land. This, added to the $6000, gives the amount of her entire separate estate as $25,892.98 — all having been put in her husband’s possession and under his control, for use in his business, until she would call for repayment. Before getting this latter and larger amount of money, on the 7th day of April, 1866, appellees bought the Black property in Twentieth ward for $25,000, the husband paying down cash $10,000 and giving the customary securities from himself and wife for the residue, $15,000. That residue was not paid up and mortgages satisfied until May 9th, 1868, when the interest thereon would amount to over $1875. The husband made all the payments, which, from those figures, make a total of $26,875, being nearly $1000 more than the amount of his indebtedness to his wife. Her means alone had not then bought and paid for the Black property, but his money and credit contributed thereto.</p> <p>Four years after this Black purchase, and nearly two years after inception of the debt for which the husband’s title was sold, appellees concluded to make a further operation and investment in real estate. On 22d March, 1870, they bought the Bates property, now in question, for $40,000. They paid the consideration in part by selling and conveying to Bates the Black property at $82,000, and the remaining $8000 they raised by ¡jointly incurring an indebtedness of $9000 to another party. They afterwards borrowed $14,000 more on this same property for some other operation.</p> <p>Is this $40,000 tract thus bought by the joint means of husband and wife, and largely on credit, the credit of the husband, to be held as the wife’s exclusively in defiance of the husband’s creditors ? Property purchased by a married woman on credit is not her separate property; her credit is nothing in the eyes of the law. Her credit is her husband’s, and her inability to pay for the thing bought out of her own funds causes it, as to the husband’s creditors, to be taken as his : Heugh v. Jones, 8 Casey 432 ; Hallowell v. Horter, 11 Id. 375; Bobinson v. Wallace, 3 Wright 133; Gault v. Saffin, 8 Id. 807; Lienbach v. Templin, 32 Pitts. L. J. 77 ; 9 Out. 522; Keeney v. Good, 9 Har. 349; Gamber v. Gamber, 6 Id. 366.</p> <p>[MeiicujR, C. J. Is there not an Act of Assembly by which a party in possession can compel an adverse claimant to prosecute his ejectment, or be barred?]</p> <p>None that I know of, applicable to this case. The Act of May 21st, 1881, provides for such a rule after one verdict and final judgment, or verdict and judgment against verdict and judgment; but we have no verdict or judgment here. The Act of April 3d, 1872 (P. L. 33), seems to provide for such a rule in case of a compulsory nonsuit, but not in case of a voluntary nonsuit, as here.</p> <p>A Master’s findings of fact confirmed by the court below will not be reversed except for palpable error. The Master has found in this case, and the court below has confirmed the finding, “That the said 19th Ward tract, to quiet the title to which the bill in this case has been filed, was purchased by said plaintiff, Sarah B., was paid for out of her separate estate, and that none of the said land and no portion of the considertion therefor came to her from her said husband.” He further finds that the title which George Thompson claims to this land, “the evidence before the Master shows clearly to be worthless.”</p> <p>* It is argued that Mrs. McElroy’s purchase was, in part, on credit; but as it was upon the credit of her separate estate, this is immaterial. In Seeds v. Kahler, 76 Pa. St. 262, the present chief justice said: “ It is well settled that when the wife has a separate estate, and she buys property on the credit of that separate estate, she may hold it against the creditors of her husband: Wieman v. Anderson, 6 Wright 311; Rush v. Yought, 5 P. F. S. 437; Brown v. Pendleton, 10 id. 421; Musser v. Gardner, 16 id. 242. It is not necessary that she shall have paid for it at the time of her purchase. She is not precluded from buying upon credit, provided it be upon the credit of her separate estate.” Again, in Sixb'ee v. Bowen, 91 Pa. St., 152, this same doctrine is approved, and this court said: “ It has been repeatedly held that when a married woman, who has a separate estate of her own, buys property on the credit of such estate, she is entitled to claim and hold it as her own against the creditors of her husband.”</p> <p>Have the courts of common pleas in Pennsylvania jurisdiction to grant an injunction in a case like this? We start with the facts that the property in dispute is Mrs. Sarah B. McElro3r’s, bought and paid for out of her own money — that her husband had no title or right of any kind in it — and that Thompson, the appellant, has no title or right to it — that Thompson has already brought two actions of ejectment for this pr'bperty, in each of which he took nonsuits — that his pretended title is utterly worthless and merely colorable — yet he threatens and intends to bring- other actions of ejectment, based on the same alleged title, for the purpose of compelling Mrs. McElroy out of her own property to pajr her husband’s debt to Thompson — that Thompson’s conduct is malicious and fraudulent, contrary to law and equity — that these actions of ejectment cast a cloud on Mrs. McElroy’s title, prevent her from selling her property, and the result will be, unless Thompson be enjoined, that l\|rs. McElroy’s property will be sacrificed at sheriff’s sale on the mortgages. Mrs. McElroy is in possession, and cannot herself bring any common law action to settle her title.</p> <p>The Married Woman’s Act of 1848 and 1850 provides that the real estate of married women “ shall not be subject to levy and execution for the debts and liabilities ” of the husband. This court has repeatedly held that it will interfere by an injunction to prevent such a levy and sale. It is in contravention of the statutes cited to subject her to the costs, expense and trouble of the repeated and. unfounded actions of ejectment, and on this ground even a preliminary injunction would be granted. This question of jurisdiction was most carefully considered and decided in Hunter’s Appeal, 4 Wr. 196, cited and approved in Lyon’s Appeal, 11 P. F. S. 15: Stockdale v. Ullery, 1 Wr. 446. Now, when two actions of ejectment have already been brought on the same title, in each of which the plaintiff took nonsuits after the case was tried, and when, on the fullest judicial investigation three times had, it is demonstrated that the plaintiff’s title is worthless, and yet he uses it to cloud Mrs. McElroy’s title, and threatens other actions of ejectment unless she will pay him a large sum of money — and the fact is, as the Master has found, that unless Thompson is restrained, the result will be that Mrs. McElroy, unable to sell any part of her land to pay off the mortgages, owing to the cloud Thompson’s conduct casts upon her title, will have the property sold at sheriff’s sale on the mortgages against it — is it not apparent that Thompson’s conduct is contrary to law and equity, and should be restrained ? She is in possession, and utterly remediless at law; therefore, the broadest ground of equitable jurisdiction, i. e., want of an adequate remedy at law, sustains her case. Add to this that the Master has found that Thompson’s conduct in repeatedly bringing these actions of ejectment on what he knows to be a worthless title, is “fraudulent,” and done to extort money, and we have another broad ground of equitable jurisdiction, i. <?., fraud.</p> <p>Barclay’s Appeal, 12 Norris 52, and the other cases relied upon by appellant are not in point, as the Master demonstrates.</p> <p>In the case at bar, the facts found were that Thompson’s title was worthless, and that the real estate was Mrs. McElroy’s individual property. In the trials in court Thompson admitted this by taking nonsuits, and thereby prevented a jury from passing on the facts. The appellant’s ground is that for twenty-one years he may bring as many ejectments as he pleases — take nonsuits in each — and thus extort money to buy peace, and that Mrs. McElroy is utterly remediless. Bills of peace to remove clouds from titles and to prevent multiplicity of suits, are well-recognized grounds of equity jurisdiction, and this under the head of fraud: 1 Story on Eq. •Jurisprudence, § 711; High on Injunctions, Secs. 64,827; Orton v. Smith, 18 Howard, 263.</p>

<p>A testator by Ms will provided as follows: “I devise a,nd bequeath to my beloved wife, Rebecca Kearns, all my household and kitchen furniture; I also allow my wife to have any part of my dwelling-house which I now reside in which she may think proper to take and occupy during her natural life, for her use and the use of my two daughters, Mary Jane and Charlotte, so long as they remain single and unmarried.” And testator devised to Ms son J. twenty-five acres of land, which included the said dwelling-house. The widow occupied said dwelling-house with testators two daughters, one of whom died unmarried in the widow’s lifetime, and then the widow died, leaving the other daughter, unmarried, residing in the house:</p> <p>Held, that upon the death of the widow the testator’s son J. was entitled to possession of the house, to the exclusion of testator’s surviving unmarried daughter.</p>

1, of Allegheny county: Of October and November Term, 1884, No. 122.

2 of Allegheny county: Of October and November Term, 1884, No. 160. Debt, by John Hall for use of E. K. Hyndman and Daniel Kaine against the Pittsburgh National Bank of Commerce, upon a replevin bond given by said defendants to Hall, U. S. Marshal for the .Western District of Pennsylvania. The narr., as originally filed, assigned but one breach, viz.: the failure of the plaintiffs in the replevin to prosecute their action with effect.

<p>lid and binding pledge can be made of the interest of a partnership to be subsequently created, so as to secure to the pledgee apriority of lien as against other creditors of the pledgor. 1. In equity a va the pledgor in</p> <p>2. Hence, the existence of the subject of the pledge at the time the contract of pledge is made, or delivery thereof, is not necessary; if it comes into existence afterwards it is affected, in equity, at once by the lien stipulated for.</p> <p>3. In general, however, it is essential that the instrument creating the pledge should make or provide for an- unconditional assignment of the subject of the pledge to the pledgee; otherwise some further act of assignment by the pledgor is necessary.</p> <p>4. But a recognized exception to this rule is, where, by the agreement of the parties, the possession of the subject of the pledge is to remain with the pledgor.. In such case the pledgor and all persons claiming under him, except bona fide purchasers for value without notice of the pledge, are bound by the agreement.</p> <p>5. The principle of such exception has been applied to the pledge of specific chattels; a fortiori, it applies in the case of the pledge of an intangible interest, incapable of delivery or manual occupancy, or in the case of an expectancy to come into existence after the contract of pledge is made, and where the personal effort of the pledgor is necessary, both to its subsequent existence and its actual maintenance.</p> <p>6. A. being about to borrow money from B., to form a limited partnership, executed a paper whereby he pledged to B. all his interest in the limited partnership of A. and C., A. to remain in possession, but to make an assignment of his interest on demand. The proposed limited partnership was duly formed, but under another name, and including additional parties besides A. and C. B. loaned the money to A., by whom it was contributed as part of the capital of the limited partnership. B. never demanded an assignment, and none was ever made. A. died insolvent, but upon the subsequent winding up of the partnership a balance of profits remained, and A.’s share thereof was paid to his executor. Upon distribution of said fund the same was claimed by B. as pledgee, and by D., a separate general creditor of A., to the exclusion of each other:</p> <p>Held, that B. was entitled to receive, in priority to D., the full amount for which the pledge had been given.</p>

<p>1. The finding by a jury of inquest in lunacy or habitual drunkenness proceedings is only prima faeie evidence and may be rebutted by other testimony. This is so whether the inquisition be negative or "affirmative.</p> <p>2. The absence of a power of revocation in a voluntary deed is a circumstance which throw s the burden of proof upon the party deriving the benefit, and in the absence of proof of a distinct intention to make the gift irrevocable the conveyance will be set aside, if the other circumstances of the case require it.</p> <p>3. A transaction between persons in a confidential relation is regarded with, jealousy and solicitude, and if there be found any trace of undue influence or unfair advantage, redress will be given to the injured party. In the case of a voluntary deed from a son to his father, who is a beneficiary under it, the burden'of proof is upon the latter to show that he has taken no advantage of Ms influence or knowledge, and that the arrangement is fair and conscionable.</p> <p>4. A man of intemperate habits, by which he had become enfeebled in mind and body, made a voluntary conveyance of all his estate to his father, in trust for his (the grantor’s) father, mother and sister. The deed made no provision for the grantor’s wife and but an inadequate provision was made for the only son. The parties benefiting by the deed were in affluent circumstances and the consideration expressed in it was but nominal. The deed contained no power of revocation and there was no proof that the grantor was conscious of that fact or that his attention was called to it. The transaction was under the professional advice of the father’s attorney, and the son’s private attorney was not cognizant of the proceedings.</p> <p>Held, in a suit in equity brought by the widow and administratrix of the grantor, to set aside the deed, that the deed should be set aside in favor of the grantor’s widow, and the property be transferred to her as the administratrix of her husband’s estate.</p>