Volume 110 — Pennsylvania State Reports

<p>Error to the Court of Common Pleas of SehuylMll county: Of January Term 1885, No. 293.</p> <p>This was an action on the case, by Martin W. Keifer against the township of Eldred, to recover damages for the loss of a colt, caused by negligence of the defendant in not keeping in repair and safe condition a bridge on a public road.</p> <p>On the trial, before Persuing, P. J., the defendant presented the following point:</p> <p>1. That under the uncontradicted testimony in this case the plaintiff was guilty of contributory negligence in allowing his eattlo to run at largo on tbe highway, and on this bridge, and therefore cannot recover in this action.</p> <p>Answer — It is a rule of law that where a party claims damages in a case of this kind, a charge of negligence, if his own , conduct has contributed to the injury, he cannot recover. It is not material to what extent his negligence has contributed. If he is also negligent, and his negligence has contributed to the infliction of the injury upon his person or upon his property, he cannot recover. We will leave to you the question as a question of fact, whether Keifer in this instance was guilty of contributory negligence, whether his own action in allowing his horses to cross this bridge without anybody having them in charge, as would appear was the custom — for them to cross that bridge to get to the water — was negligence on his part, which contributed to bring about this accident. If it was so, then he could not recover. Therefore, we will negative this point. In doing so, I refuse to take the ease from your consideration.</p> <p>I will reserve the question of law raised by it to be disposed of by rule for judgment non obstante veredicto, if that should be necessary.</p> <p>In the general charge the court submitted the evidence in the cause to the jury, and said, inter alia: “Did the plaintiff lose this animal in consequence of the negligence of the township in not making proper repairs to this bridge? Or, is the theory of the defence correct, that the colt could not have fallen through that hole, or that the bridge was perfectly safe, and, therefore, that there was no negligence ? In the one case you will find for the plaintiff, and in the other you will find for the defendant. If you find for the plaintiff, that he lost his property in consequence of the negligence of the township, that they failed to make repairs there which they should have made, which the supervisor should have made, in order to render this bridge safe, then the next question you would have to dispose of would be the amount of damages to which he is entitled.”</p> <p>Verdict and judgment for the plaintiff for |150, subject to the point reserved.</p> <p>Subsequently the court entered judgment on the point reserved, for the defendant non obstante veredicto. The plaintiff took this writ, and assigned for error that “ The court erred in entering judgment for the defendant non obstante veredicto, as there was no question of law reserved upon any fact agreed to by the parties or ascertained by the verdict.”</p>

404. Case for deceit, by Thomas M. Saurman against Thomas Taylor.

413. Case, by J>ames Z. Wambold against Jacob Hoover, to recover damages claimed to have been sustained by the neglect or refusal of Hoover to reassign to plaintiff a certain judgment. The writ issued November 28th, 1881.

<p>1. The addition of the letters “Fr.” to the signature of the drawer of a cheek do not, of their own force, qualify Ms direct and personal liability ; they are, in legal contemplation, mere meaningless hieroglyphics.</p> <p>2. The burden of disproving the legal effect of such a check by parol evidence rests upon the drawer, and the right of the holder to rebut such proof by other proof of the same character follows as a necessary consequence.</p> <p>3. Testimony to show that a person, granting a privilege to another, agreed to take a check therefor, signed by the other’s agent in his own name with the letters “Fr” following, as the personal check of the agent, is not within the rule rejecting parol evidence contradictory of a written instrument.</p>

<p>A promise in writing to pay a certain sum towards the erection of a church, made without consideration, and where it does not appear that others were induced to subscribe, or that any work was undertaken on the faith of it, is rendered void by the death of the promisor within one calendar month after its date, being within the provisions of section 11 of the Act of April 26th, 18*55 (P. L. 382).</p>

44. Trespass quare clausum fregit, by A. H. Strayer to use of Peter W. Keller against F. S. Johnson, Isaac Shaffer and J. B. Powers, to recover statutory damages for cutting and removing timber on a tract of land in Bald Eagle township. Plea, not guilty, and liberum tenementum.

<p>1. An amicable scire facias to revive a judgment, must identity that judgment with certainty.</p> <p>2. A judgment entered upon an amicable scire facias to revive a judgment, which does not give the term and number of the original judgment, which erroneously gives the date of its entry “ April 1st, 1874°’. instead of “April 15th, 1874,” and which makes a slight change in the spelling of the defendant’s last name, will not continue the lien of the original judgment, as against subsequent lien creditors.</p>

169. This was an action of covenant by Henry M. Wright against the Susquehanna Mutual Fire Insurance Company to recover for a loss… Held: that a failure to resort to the arbitration clause was no barrier to a suit, as it seemed from an offer of evidence made on the trial and objected to, that one ground of defence was, that there had been a breach of another condition of the contract; and the defendants must show not only that a dispute had arisen, touching the amount…

January Term 1885, No. 173. Covenant, by Philip Thierolf against the Universal Fire Insurance Company on a policy of fire insurance to recover damages for loss sustained by plaintiff in the destruction of his property by fire. Plea, covenants performed, absque hoc.

108. Trespass quare clausum fregit, by Benjamin W. Pursell and Elizabeth A., bis wife, to the uso of the said Elizabeth A. Pursell against Albert Stover and Charles Williams to recover damages for injuries resulting from an alleged trespass upon her realty.

<p>Where a married woman owning no separate estate purcnases a farm on credit, and gives a mortgage, in which her husband joins, to secure the entire purchase money, the produce of said farm, raised by the joint efforts of husband and wife, is liable to be seized in execution by a judgment creditor of the husband.</p>

<p>1. The fees and mileage of witnesses called and examined on behalf of the defendants in trials for felony cannot be recovered' by such witnesses from the county.</p> <p>2. TheActof May 11th, 1874,(P. L. 132), which provides that, “inall cases of conviction of any felony, all costs shall be paid forthwith by the county, unless the party convicted shall pay the same,” does not include such witness foes and mileage.</p>

<p>1. Under the Act of May 8th, 1876, (P. L. 181,) and its supplement, a county may take a private bridge for public use and declare it a . county bridge free from tolls, but compensation must be first made for ' the bridge and its attendant franchises.</p> <p>2. The damages are not to be determined by what the property is worth to the party taking it, but by its value to the company that is deprived of it.</p> <p>S. A bridge company, whose property was taken under the above Act, had previously purchased a bridge over a canal, which formed a part of the approach to the main bridge, and had also erected a toll house upon a wing of the bridge:</p> <p>Held, that the jury were properly instructed that if the canal bridge and toll house were purchased and used by the company and were a necessary part of the main bridge, they were proper subjects for consideration in estimating the damages.</p> <p>4. The rule that inquiry cannot be made into past profits in assessing damages for property taken by right of eminent domain, does not apply when the property taken is a bridge; such property has no general market value, and the value of its franchises depends upon their productiveness at the time of taking, hence evidence is admissible to prove the receipts for, say the five years preceding the taking.</p> <p>Ü. Semble. The market value of the stock represents that of the bridge and its attendant franchises, and would be a fair test of the measure of damages. Had this test been applied in the present case, the damages would have probably been larger.</p> <p>6. In a proceeding under the Act of May 8th, 1876, the county has no right to complain that the bridge company had declared larger dividends than were authorized by law, particularly as it was a holder of a large amount of stock, and participated in the profits.</p>

<p>1. The report of a referee under the Act of May 14th, 1874 (P. L. 166), should state separately and distinctly the facts found, and the conclusions of law resulting from the facts.</p> <p>2. The fact that a debtor voluntarily paid more than six per cent, interest, and made a settlement on that basis, does not preclude him from setting up the defence of usury to an action brought to enforce such settlement.</p> <p>3. When the consideration of a confessed judgment is made up in part of usury, the court will open the judgment and afford relief.</p> <p>i. Hopkins v. West (2 Norris, 110), and Montague v. McDowell (3 Out., 268), distinguished.</p>

480. This was an appeal by Sarah M. Cake and Lueetta B. Cake from a decree of said court, confirming the report of an Auditor appointed to make distribution of the balance in the hands of the administrator of the estate of Margaret Schuyler, deceased. The following facts appeared before the Auditor (G. W. Zeigler, Esq.): Margaret Schuyler, the decedent, was a widow, living in the borough of Northumberland.

Appeal by Martha Yorks and C. E. Yorks, executors of the will of William Yorks, deceased, from a decree of said court confirming the report of the auditor of their account, and ordering distribution in accordance with said report. The facts as they appeared before the Auditor (F. C. Angle, Esq.) were substantially as follows: On August 21st, 1887, William Yorks died, leaving a will wherein he appointed his wife Martha Yorks and his son C. E. Yorks, executors.

140. Debt, by John W. Gillespie against the Home Mutual Life Association, on a policy of insurance for $2,000, issued by said company on the life of Anthony Gillespie.

<p>1. A testator, after directing tlie payment of his debts, provided as follows : “ Then after the allowance of the one third of my property to the widow, my will is that all my children share and share alike.”</p> <p>Held, that under the Act of April 8th, 1838, tins provision constituted a devise in fee of one third of testator’s real estate to the widow.</p> <p>2. The Orphans’ Court could not change the nature of the widow’s estate by any proceedings in partition.</p> <p>3. Under the above will proceedings in partition were had and two of the testator’s sons went into possession of the real estate giving a recognizance to secure the amount of the valuation money to those entitled and binding themselves, as to the widow, to “pay the interest on so much thereof, as interest should be paid on.....during each year other life.” In an action by the widow, on the recognizance, to recover her one third of the valuation: Held, that the words of the recognizance could not and did not change the character of the widow’s interest in the fund, and that she was entitled to recover in this action the one third of the valuation put on the property.</p> <p>4. The fact that the widow continued to receive the interest on her share for twenty years, without ever demanding the nrincipal, doe£ not estop her now from demanding the same.</p>

298. This was a petition filed by John R. Albright against Samuel Eberty, trustee under the will of Samuel Albright, deceased, praying that certain accumulations of income be paid to him by the said trustee. The defendant filed an answer and the matter was referred to an Auditor (William Trickett, Esq.,) who found the facts to be substantially as follows: Samuel Albright died in April, 1869, leaving a will which was duly probated.

297. Indictment of Charles A. Railing for unlawfully administering a drug to Annie Foust, a pregnant woman, with intent to procure a miscarriage, in consequence whereof the said Annie Foust died. Plea, not guilty et de hoc. On the trial, before Herman, P. J., the following facts appeared: On January 22d, 1884, about 4 P. M., defendant took Annie Foust, at that time pregnant with child, from her father’s house in a sleigh.

<p>1. The assignment of a policy of life insurance taken out by the assured on liis own life, though made by the assured in good faith, to a person who has no insurable interest in the life of the assured, is a wagering contract and contrary to the policy of the law.</p> <p>2. When in such case, on the death of the assured, the assignee recovers the amount of the policy, the personal representatives of the deceased may recover from said assignee the amount received by him, less the sum he has paid for the policy, with interest and the aggregate of the assessments paid on the policy by him.</p>

This was, in the court below, a certiorari, by Frank Fowler, to review tbe record of the Recorder of Bradford City, wherein judgment was entered against said Fowler and in favor of G. W. Eddy, for $225.94. The facts were substantially as follows: Eddy, who had leased certain premises to Fowler, distrained upon the goods of the latter, claiming $241.22 for rent in arrear.

141. Assumpsit, by J. K. Wallace against Joseph Post to recover for professional servic.es as an attorney-at-law. On March 24th, 1888, plaintiff filed a narr. consisting of the common counts, and on the same day filed a statement of claim for professional services as an attorney-at-law.

<p>■ Appeal from the Orphans’ Court of McKean county: Of July Term 1884, No. 146.</p> <p>This was an appeal by J. D. Wolfe from a decree of said court dismissing exceptions to and confirming the report of an Auditor, appointed to make distribution of the funds in the hands of the administrator of Victor C. Wright, deceased.</p> <p>The facts, as found by the Auditor (John Forrest, Esq.), were substantially as follows: Victor C. Wright died intestate-'on September 2d, 1881; his administrator filed his account showing a balance, after payment of preferred debts, of $2,687.30. This account was confirmed and an Auditor was appointed to distribute this balance among Wright’s creditors. The Auditor found the estate to be insolvent. J. D. Wolfe presented a claim before him for a balance due him on certain promissory notes, given by Wright, for the purchase money of a certain leasehold interest in ten acres of land in McKean county together with two oil wells, machinery fixtures, tools, etc. These notes were secured by a mortgage on the said leasehold for $4,668.75, dated February 23d, 1881, which was duly recorded. Wolfe testified that at the time he took said mortgage, he gave (he thought) a bill of sale or other paper transferring his title to Wright, but there was no title of record from Wolfe to Wright for said leasehold. The notes, for which said mortgage was given as security, were six in number and bore even date with said mortgage. At the time of Wright’s death, three of these notes, amounting with interest to $3,081.02, were unpaid; as they fell due they were protested for non-payment. Wolfe then issued a scire facias on the said mortgage, caused the property to be sold by the sheriff, bought in the property himself and receipted for the proceeds of the sale upon the writ. This amounted with interest to $1,024.87 and it was the balance still due, viz: $2,056.15, that constituted the present claim.</p> <p>The Auditor found from the above state of facts that Wolfe, by becoming the purchaser of the mortgagor’s equitable interest at the sheriff’s sale, had rescinded the contract with Wright and could not come in on the funds in his hands for distribution.</p> <p>Wolfe filed, inter alia, the following exception to this report:</p> <p>“1st. The Auditor erred in failing to report that J. D. Wolfe had made an absolute assignment or transfer of his legal title to the leasehold estate for which a leasehold mortgage was given to secure purchase money; and that" J. D. Wolfe having failed to realize the full amount of his claim from a sale of the mortgaged premises, was entitled to recover the balance of his claim against the estate.”</p> <p>The court overruled the exception and confirmed the report of the Auditor. Wolfe then took this appeal, assigning fb'r error the action of the court.</p>

<p>1. A widow is a proper party to a proceeding in partition, whether in the Common Pleas or in the Orphans’ Court.</p> <p>2. Quaere. — Whether an administrator d. b. n. c. t. a. is a proper party ■ where a discretionary power to sell land was given to the executors by the will.</p> <p>3. Where it is agreed, in a suit in partition, that the property shall be divided between the plaintiffs and defendants in two equal parts, the defendants cannot object that parties having no interest are joined with the plaintiffs, as such joinder cannot affect their rights, and is, as to them, immaterial.</p> <p>4. A verdict, irregular by a mistake apparent on its face, may be amended after judgment. .</p>

8. Trespass quare clausum fregit, by John M. Dexter and Mary C. Dexter, his wife, for the use of said Mary C. Dexter, against Sarah M. Billings, administratrix of the estate of Silas X. Billings, deceased, to recover damages for the cutting and removing of certain timber from land claimed by plaintiffs. Pleas, not guilty and the Statute of Limitations.

<p>Error to the Court of Common Pleas of Cameron county: Of January Term 1885, No. 204.</p> <p>This was an action of debt by D. J. McDonald, administrator of the estate of A. J. McDonald, deceased, against the Commonwealth Mutual Fire Insurance Company, on a policy of fire insurance issued by defendants on decedent’s property for one year from May 1st, 1883. Plea, non est factum, with leave, etc. Thomas J. Riley was subsequently substituted administrator d. b. n.</p> <p>On the trial the following facts appeared: A. J. McDonald was the owner of a large frame hotel and other buildings at Driftwood, Pa., all of which had been insured through Charles O’Conner, an insurance agent at Lock Haven. About April, 1883, his policy expired and he asked O’Conner to re-insure the property and paid him a premium of $22 therefor. As none of the companies of which O’Conner was agent would insure the property, he wrote to Robert Crane, the Philadelphia agent of defendant company, for whom he had done business for over five years, and sent him McDonald’s application. Crane had the policy made out, signed it as defendant’s agent and had it mailed to O’Conner who received it on May 1st, ancl delivered it to McDonald the same day. On May 3d, the property insured was destroyed by fire.</p> <p>It was customary for O’Conner, on delivering policies for Crane, to receive the premiums and return the same between the 10th and 15th of each month to Crane who would settle with his companies. In accordance with this established custom the premium received by O’Conner was retained by him for monthly settlement when the fire occurred. On May 5th, O’Conner remitted the premium to Crane and notified him of the loss. Crane refused to accept the premium and the defendant refused to pay the loss, alleging that the fifth condition of policy, providing that “No insurance, whether original or continued, shall be considered as binding until the actual cash payment of the premium,” had not been complied with.</p> <p>The court directed the jury to find for defendant — verdict accordingly : whereupon the plaintiff took this writ, assigning for error the action of the court.</p>

<p>Error to the court of Common Pleas of McKean county: Of January Term 1885,' No. 359.</p> <p>Feigned, issue, wherein David Rodgers was plaintiff and Jacob Olshoffsky was defendant, to determine the validity of a judgment'for $888 entered upon a judgment note given by defendant to plaintiff. On motion of defendant, said judgment was opened and an issue was framed by defendant pleading payment.</p> <p>On the trial, before Olmsted, P. J., the following facts appeared : On March 5th, 1880, Enos Parsons et ux. conveyed to David Rodgers, the plaintiff, by general warranty deed, without covenant as to quantity, a lot on the north side of Main street in the city of Bradford, Pa. The lot was described in the deed as twenty feet in front on said street. On the same day David Rodgers et ux. conveyed the same lot to Jacob Olshoffsky by deed containing no covenant as to quantity, and as to covenants and description it was precisely like the deed from Parsons et ux. to Rodgers. At the time of the sale by Rodgers to Olshoffsky, a portion of the purchase money was paid in cash, and the bond, upon which the present suit was brought, was given to secure the balance. Subsequently, on November 10th, 1881, defendant conveyed this same lot to M. Rothstein by a deed containing a similar description. It appeared that the lot was only 18-1- feet wide instead of twenty as described in the above deeds, but there was no evidence that Rodgers had made any specific representation that the lot was twenty feet in width, or that Olshoffsky was induced to purchase the lot on the faith that it was twenty feet wide. Olshoffsky testified that he had been upon the property and examined it before he purchased.</p> <p>Counsel for plaintiff requested the court to charge :—</p> <p>1st. “ The deed from the plaintiff to the defendant for the lot in -question, contains no covenant as to quantity, and the evidence shows that it was fully executed and delivered, and the bond in suit given to secure part of the purchase money, before the commencement of this suit; and the evidence not showing fraud or gross mistake in the transaction the plaintiff is entitled to a verdict for the balance due on the said bond.” Answer. “ We cannot affirm this point as it is put, but submit the question of the deficiency, and of the good or bad faith of the vendor in making the sale.” (Twelfth assignment of error).</p> <p>2d. — “The evidence showing that the defendant disabled himself from placing his vendor, the plaintiff, in statu quo by conveying to a third party the land for which the bond in suit was given, the defence set up in this case can not be maintained, and the verdict must be for the plaintiff for the amount of the debt and interest due upon said bond.” Answer. “ We answer this in the negative as applicable to this case.” (Thirteenth assignment of error.)</p> <p>3d. — “ Where a deed is accepted for land and bond given for the purchase money, the presumption of law is that the title is satisfactory and marketable, and to rebut such presumption and defend against the purchase money the defendant must show the title positively bad by showing a superior and indisputable title in another person asserting such title, and there is not sufficient legal testimony in this case to warrant, the jury in finding such legal title in another person. Therefore the verdict should be for the plaintiff.” Answer. “We cannot affirm this point in its full scope, but submit the question of the deficiency of the land to the jury. (Fourteenth assignment of error).</p> <p>4th. — “ Under the evidence in this case and the law applicable thereto, the plaintiff is entitled to a verdict for the amount of debt and interest now due and unpaid on the bond in suit.” Answer. “ We cannot affirm this point, but submit to the jury questions as indicated in the general charge. (Fifteenth assignment of error). *</p> <p>Counsel for defendant requested the court to charge that' “ If the jury believe from the evidence that there was one and two thirds feet of the land described in the deed from David Rodgers to Jacob Olshoffsky, to which plaintiff had no title, they must deduct from the amount claimed three hundred dollars.” Answer. “We affirm this point with this qualification, that the jury must not only be satisfied from the evidence that the land was deficient in quantity, but they must also be satisfied that the plaintiff acted in bad faith in making the sale.” (Sixteenth assignment of error).</p> <p>The court charged the jury, substantially, that if the lot was not twenty feet in front as described in the deed and that if, when the purchase was made, there was bad faith on the part of the plaintiff, the defendant was entitled to a reduction of the plaintiff’s claim for the amount that the land falls short, at the price it would come to by the foot under the original sale. (Assignments of error, seventh to eleventh inclusive).</p> <p>Verdict for the plaintiff for $58.01 and judgment thereon. Plaintiff then took this writ, assigning for error, inter alia, the answers to the points and the portions of the charge as substantially stated above.</p>

Ekrob, to the Court of Quarter Sessions of Perry county: Of July Term, -1885, No. 43.

<p>1. The mere confession of judgment to a bona fide creditor, by a debtor, on the eve of making a general assignment for the benefit of creditors, is not invalid as an act done to hinder and delay creditors.</p> <p>2. The Act of April 17th, 1843 (P. L. 273), simply prohibits preference in assignments; a preference given by a confession of judgment, made prior to the assignment and while the debtor had dominion over his property, is not invalidated from the fact that it was given to avoid the provisions of said Act.</p> <p>3. The intention of a debtor, unexpressed to the creditor, to give him a preference at the time he was contemplating a general assignment, does not operate to defeat such preference.</p> <p>4. In an issue framed to try the validity of judgments confessed as above, ■ the court below charged that if, at or before the giving of the judgment notes, the debtor had determined to make an assignment for the benefit of creditors and to give certain creditors a preference, and by way of effectuating such preference as part of the assignment, with the intent and for the purpose of avoiding the law forbidding preferences, executed the notes, procured them to be entered and execution to be issued on them without the knowledge of said creditors, this would be a fraud under the Act of 1843, forbidding preferences to debtors :</p> <p>Held, that this was error; the Act of 1843 only prohibits preferences in assignments, and, so long as the debtor had dominion over his property, ho could prefer such bona fide creditors as he chose.</p> <p>5. The Act of April 17th, 1843 (P.L. 273), and the statute of 13 Elizabeth, distinguished. Mellon’s Appeal, 1 Grant’s Cases, 212, followed.</p> <p>6. The effect of preferences, actually contained in an assignment is, that they inure to the benefit of all creditors in proportion to their respective demands.</p>

<p>In the Supreme Court of Pennsylvania: 25 Miscellaneous Docket No. 1. .</p> <p>This was a rule granted upon petition of John Slevin, John H. Cahill and Mathew McVay, to show cause why a mandamus should not issue against Hou. William S. Peirce, Hon. D. Newlin Fell and Hon. Michael Arnold, judges of the Courts of Common Pleas for the city and county of Philadelphia, the court assigned for the purpose of opening, computing and certifying the returns of the election held in the city of Philadelphia, on Tuesday, February 17th, 1885, to compel them to issue a certificate of election to tbe twenty-six candidates for the office of magistrate receiving the highest number of votes at said election.</p> <p>The finds of the case, as they appeared from the petition, were as follows: The Constitution of 1874, by Article V., section 12, abolished tbe office of alderman in Philadelphia comity, and provided that “in Philadelphia there shall be established for each thirty thousand inhabitants one (magistrate's) court, not of record, of police and civil causes, with jurisdiction not exceeding $100.” Tlie Act of February 5th, 1875 (P. L. 56), which was passed to give force and effect to this constitutional provision, enacted as follows: “There are hereby established in Philadelphia, twenty-four courts, not of record, of police and civil causes, with jurisdiction not exceeding $100, and an additional court shall be established from time to time, so as to provide one such court for every 80,000 inhabitants of said city; each of such courts shall be lield by one magistrate, wlxose term of office shall be five years ; it shall be the duty of the Councils of the City of Philadelphia, on or before the first day of March, a. d. 1875, and on or before the first day of January of every'fifth year therein, and whenever else it may be necessary to fix the general location of each of the said courts by declaring between which streets or roads it shall be, so as to be most convenient for suitors and for the dispatch of public business.”</p> <p>In March, 1875, the councils of said city provided for the location of the twenty-four magistrate courts, in pursuance of the above Act.</p> <p>By the official census of 1880, the population of the city of Philadelphia was 847,170 inhabitants, and in order to provide one magistrate for each 30,000 inhabitants the requisite number would be twenty-eight. By the death of two former magistrates during the continuance of their respective terms, their successors were elected for a period not expiring at the same time as the others.</p> <p>On January 23d, 1885, the sheriff of Philadelphia county issued his proclamation for the election of twenty-two magistrates on February 17th, 1885, at which time petitioners, along with others, were voted for to fill these places. Upon the votes being counted by the judges assigned to that duty, the petitioners were found to be the highest unsuccessful candidates for the twenty-two vacant courts already established. They demanded that, as the population of the city had increased sufficiently to allow of four additional courts, the judges, in pursuance of the Constitution and legislative authority, should issue a certificate of election to the twenty-six candidates receiving the highest number of votes. The judges refused to issue such certificates, whereupon the petitioners obtained from the Supreme Court this rule to show cause.</p>

<p>Appeal from the Orphans’ Court of Lancaster County: Of July Term, 1884, No. 105.</p> <p>This was an appeal by Mary E. Risk, from a decree of said court, overruling her exceptions to and confirming the report of an auditor appointed to distribute a fund in the hands of said Mary E. Risk, as executrix of her deceased husband, J ames Risk, being the proceeds of real estate sold for the payment of debts, by an order of the Orphans’ Court.</p> <p>The facts were as follows: James Risk, the testator, died November 9th, 1881, leaving to survive him a widow but no issue. The following is a copy of his last will and testament:</p> <p>“ Mount Pleasant, Lancaster Co., Pennsylvania.</p> <p>November the fifth day 1881. This is My Last Request of My Estate-. Fore My Wife Mary E. Risk to have ail Bonds and all the income thereof and all money now on hand & all the Personal Property is hers the Remaining Real Estate is to Go to Mary E. Risk one haff. Brother William Risk is to have one haff of the Remaining haff of the Real Estate. Samuel J. Risk is to have one thousand Dollars of the Remaining haff. Robard B. Risk is to have one hundred Dollars of the Remaining haff. If there is anny Balans Lef it is to Bee Equally Divided Between Samuel J. Risk and Mary E. Risk. I wish My wife to Mary E. Risk to Bee the Executor of My Estate.</p> <p>Sined by me</p> <p>HIS</p> <p>JAMES -f RISK.</p> <p>MARK.</p> <p>¡Samuel Shimp, Robt. Ferguson, W. G. Cairnss.”</p> <p>This will was admitted to probate November 18th, 1881, and letters testamentary were granted to Mary E. Risk. The inventory, as filed, showed personalty to the amount of #3,189. On November 30th the widow elected to take under the will and also elected to retain property to the value of #300 out of the real estate. On December 7th, 1881, the appraisers, appointed to value and set aside real estate to the value of #300, reported that this could not be done without injury to the whole real estate.</p> <p>On December 12th, 1881, upon petition of Mary E. Risk, the Orphans’ Court granted an order for the sale of the undivided one fourth of the decedent’s real estate for the payment of debts. Mary E. Risk and William Risk, as devisees under the will, advertised that at the same time the remaining three fourths of said real estate would be sold. The whole property was sold on January 5th, 1882, and realized #7,040.39. On January 16th, 1882, the executrix made return that she had sold the undivided one fourth for #1,760.09|-.</p> <p>Before the Auditor (A. C. Reinoehl, Esq.,) appointed to distribute said fund, counsel for the widow contended that this was the proper fund out of which the debts, expenses of settling up the estate and the widow’s #300 must be paid. The Auditor found that the debts contracted by decedent amounted to less than #100, this sum added to the expenses of settling the estate and the widow’s exemption made the liabilities amount to #1,172.83, one fourth of which he charged upon the fund in his hands.</p> <p>To this report, the widow filed, inter alia, the following exceptions :</p> <p>“7. The Auditor should have decided that the personal property, and the one half of the real estate bequeathed and devised absolutely to Mary E. Risk, the widow, should not bear any part of the expenses of settling the estate, the payment of debts of the testator, or widow’s exemption.”</p> <p>“8. The Auditor erred in not awarding #300.00 to the widow out of the proceeds of the sale of the real estate mentioned in the account.”</p> <p>These exceptions were dismissed by the court, Patterson, J.; the report was confirmed and a decree entered making distribution in accordance therewith. The widow thereupon took this appeal, assigning for error this action of the court.</p>

<p>1. An agreement for the purchase o£ stocks on margin, without any intention of delivering or receiving the stock, is a gambling contract, which will not support an action between the parties thereto.</p> <p>2. Where, however, one advances money at the request of another to purchase stock for him and the latter fails to pay the balance of the purchase money and take up the stock, in consequence of which the stock is sold at a loss to the first party, ho is entitled to recover from the other the amount of the loss.</p> <p>3. A., at the request of B., furnished a broker money to purchase stock for the exclusive benefit of B. The stock declined in value, and, B. being unable to take up the stock, it was sold at a loss to A. In a suit by A. against B. to recover this loss, Held:</p> <p>(1.) That evidence to show that A. liad purchased stocks for others under contracts which the law would regard as gambling, was properly excluded.</p> <p>(2.) That evidence of the intention of the parties in regard to this transaction, outside of their acts and declarations, was also properly excluded.</p> <p>(3.) That the question whether the above transaction was a gambling one,was properly left to the jury.</p>

<p>Error to the Court of Common Pleas of Lancaster county: Of January Term 1885, No. 88.</p> <p>Trespass, by Charles Fell and Rachel Fell against Edwin •Bennett, Josiah P. Lee and Samual T. Lee, to recover damages accruing from January 1st, 1874, to the time of bringing suit, May 17th, 1881, sustained by reason of defendants having raised their dam'on property adjoining the plaintiffs’ and backing the waters of the Octoraro Creek upon the lands of the plaintiffs, and refusing and neglecting to remedy the same. Plea, not guilty.</p> <p>On the trial, before Patterson, J., plaintiffs first proved title in themselves in common to the land alleged to have been damaged, Charles Fell’s interest being three quarters and Rachel Fell’s one quarter. Plaintiffs then offered in evidence the record of a former suit brought on August 14th, 1877 by Charles Fell against the same defendants in which he recovered $16 for the flooding of his lands by the raising of defendants’ dam in the summer of 1876, at which trial the court charged the jury that plaintiff was only entitled to recover three fourths of the damage. Objected to by defendants as not being the same cause nor between the same parties.</p> <p>Objection overruled and record admitted, but with the following qualification: “I don’t think it would be received under the present condition of things. I don’t see any difficulty.about admitting the' evidence for what it is worth, to that extent, but we don’t think, under the pleadings, it will help the plaintiffs any; but we will have to admit it to see whether, under the narr., we can try this case. It is only this record that permits us to know that one of the parties, one of the plaintiffs, has already recovered damages up to a certain time — up to September 3d, 1878. Now, stopping with that time, this record gives the court record information that one of these plaintiffs recovered damages before for the same grievance, that they have laid in their narr., and it shows that the other joint plaintiff has never recovered; at least, there is an absence of proof of that kind. We can’t permit you to give any testimony as the record stands, because we would not know how to divide and assess the damages — one party going back to 1874 and the other party to 1877 or 1878; and without any explanation, or averment on the face of the narr. as to the time. I don’t see what else the court can do, but to admit this record for what it is worth; but 1 don’t see how that will aid you as plaintiff's; but we will admit this record.”</p> <p>Plaintiffs then offered in evidence a draft of their property, and the defendants’' mill dam, showing the location of the nuisance, and proved by the surveyor who prepared it. Objected to by defendants for the reason that it was a record in the former suit and is not admissible under the declarations and pleadings in this suit. Objection sustained and offer excluded. Exception. (First assignment of error.)</p> <p>Plaintiffs further offered to prove by the testimony of Charles Fell, “ that the witness is one of the plaintiffs in this case ; that he is the owner of the undivided three fourths of the tract of land on Octoraro Creek, in Little Britain township, Lancaster comity, for injuries to which this suit is brought; that Rachel Fell is the owner of one undivided fourth; that it lies on the west side of the Octoraro Creek; extending along the creek between a quarter and half-a-mile; that the defendants have mills on said stream below the property of the plaintiffs; that the defendants have a mill-dam on the stream, and that the breast of their dam is a quarter to a half-a-mile from the land of the plaintiffs; that the witness came to live on this farm, now occupied by him, over 40 years ago, in the lifetime of Benjamin Fell, the devisor of the title; and that Benjamin Fell was in possession of the land in his lifetime, and that the possession of Benjamin Fell was succeeded by the possession of these plaintiffs. That, when the witness came into the possession of the property, the mill was supplied by water from this dam, and was run by Amor Carter, the owner, for a great many years ; that when Carter went to make a dam 35 or 40 years ago, it was like a pile of large stones put up there; that that was 35 or 40 years ago ; that the dam that was there was washed away frequently; sometimes almost leveled by Hoods, and sometimes gaps made through it, that the property came into the posession of these defendants — the mill property; that they built and raised the breast of the dam higher than it had ever been before; that this was done in the year 1876; that in 1876 the witness served a notice on the defendants that their dam was too high; that in that year the water was backed further up the stream than it ever had been before; that the water was raised on the land of the plaiutiffs about two feet higher than it had been before the dam was raised; that the water was backed farther on the plaintiffs’ land; that the dam has continued, up to the time this suit was brought, in its raised condition, and that the water has continued to be backed on the plaintiffs’ land, up to the time of the bringing of this suit, causing damage to these plaiutiffs; to show the amount of the damage and the extent of it; to show the extent of the injury, and the amount of land affected by it.”</p> <p>Objected to by the defendants for the reason that “ it is evidence.in support of an alleged claim for damages to the property of Charles and Rachel Fell, the plaintiffs in this case. The record of a former trial, in which Charles Fell, one of the present plaintiffs, was plaintiff, Rachel Fell, not being joined as plaintiff, now in evidence, shows that a"verdict was obtained and judgment entered thereon, in his favor, against these same defendants, for damages alleged to have been sustained by Charles Fell, by reason of the grievances complained of in the pleadings in this case, and covers the same period.” Objection sustained and offer excluded. Exception. (Second assignment of error.)</p> <p>Plaintiffs then offered to withdraw the record previously admitted.in evidence. Objected to by defendants because the record was admitted after argument on their part, was read to the jury, and was now part of the case. Objection sustained. (Third assignment of error.)</p> <p>Plaintiffs then made the following offer: “ The court having admitted testimony that Charles Fell and Rachel Fell, the plaintiffs in this action, have been the owners of the land, for injury to which this suit is brought, for upwards of 80 years, and in possession during all that time, and still in possession, we offer to prove that the defendants erected and built a dam below the land of the plaintiffs, on the Octoraro Creek, which runs.through the land of the plaintiffs; and that, in 1876, the defendants raised their dam some 18 inches, and raised the water in the creek, and backed the water on the plaintiffs’ land for the full distance of a half-a-mile through the land of the plaintiffs, thereby causing injury and damage to the land of the plaintiffs, by flooding their meadow, and by other injuries from the said overflow. Objected to by the defendants on the ground .that the offer was based on a misstatement of facts, and further, for the objection already given. Objection sustained .and offer excluded. Exception. (Fourth assignment of error.)</p> <p>Plaintiff repeated the same offer, coupled with the offer to withdraw the record already in evidence, and coupled with the statement that no damages are claimed by either of these plaintiffs prior to August 14th, 1877, the date of Charles Fell’s suit against these defendants. Objected to by defendants. Objections sustained. Exceptions. (Fifth and sixth assignments of error.)</p> <p>The court instructed the jury to find for the defendants. Verdict and judgment accordingly for defendants. Plaintiffs took this writ assigning for error the refusal of their offers of evidence as above, and the instruction of the court to find for the defendants.</p>

<p>1. Where payment of a promissory note has been guaranteed “without protest ” by one not a party thereto, the giving of an additional guarantee by an indorser who has been discharged for want of proper notice of non-payment, will not revive his liability as indorser.</p> <p>2. In a suit on a promissory note the plaintiff’s evidence was to the effect that on the day of the maturity of the note, of which C. & D. were the makers, A., a stranger thereto, signed a guarantee of payment of the same “without protest,” in consequence of which protest was not made, payment having been refused; that two weeks after this B., an accommodation indorser, who had been informed of the non-payment a day or two afterwards by the cashier of the bank holding the note, at the request of that cashier signed a guarantee of the “ payment of all notes drawn by C. & I), and indorsed by me now held by the-Bank [holder of the note in suit], either matured or to mature,” on the express understanding that this was to be additional to the prior guarantee. C. & I), becoming insolvent, and having made an assignment, and this suit having been brought by the bank against the executors of A., the court below directed the jury that “ under all the evidence in the case the verdict must be for the defendants: ”</p> <p>Held, that this was error, and that the evidence should have been submitted to the jury, with instructions that A.’s guarantee impliedly discharges the indorsers, and that B. was therefore discharged ; that the notice to B. of non-payment was insufficient to continue his liability as indorser, and that his subsequent guarantee, if made on good consideration, though enforceable if the bank, having used reasonable diligence. had failed to collect the note from the makers or prior guarantor, did not in anyway revive his original liability or amount to a waiver of protest.</p> <p>S. A bank holding a promissory note at maturity, has no right to appropriate in satisfaction thereof any part of the account of a mere guarantor, whose liability is postponed until other parties have been exhausted; contra, of an indorser who has not been discharged.</p> <p>4. Where at the maturity of a note held by a bank the maker’s balance on deposit is insufficient to pay the note, the bank is not bound for the protection of a guarantor to apply any subsequent deposits to the payment thereof, especially where it is unlikely that they are intended by the maker to be so applied, the balance on hand at any time being much less than the value of (she note. It is admissible, however, to put in evidence the state ol the account of the maker with the bank at the time of the maturity of the note and afterwards.</p> <p>5, Where error is assigned in excluding a deposition, such assignment will not be considered, unless such deposition is printed in full in the paper books.</p>

<p>1. The indorsement on a note, ‘ T hereby guarantee the payment of the within note without protest,” is an express waiver of demand and notice of non-payment and releases the indorser.</p> <p>2. The liability of an indorser thus released is not revived by reason of the fact alone, that on the day of the maturity of the note and subsequent to such guarantee, the indorser was informed of the non-payment of the note and signed an additional guarantee thereof. While such • indorser would be liable on his contract of guarantee, he would not continue liable on that of the indorsement, without proof that the guarantee was given for the purpose of continuing his liability as indorser, and whether or not this was so was, under the facts of the case, held proper for the determination of the jury.</p>

<p>Error to the Court of Common Pleas of York county : Of July Term, 1885, No. 38.</p> <p>This was an action of covenant by Michael Myers against Jacob Brodbeck, upon a covenant against a dower fund charged upon premises conveyed by the defendant to plaintiff. Plea,, covenants performed, absque hoc, with leave, etc.</p> <p>On the trial, the following facts appeared: Samuel King died intestate in 1864, leaving a widow, Sarah King, and eight children. At the time of his death he was seised in fee of two tracts of land in York county.</p> <p>Daniel King, a son of decedent, purchased the interest of the other children and took a deed from them subject to the following charge: “Subject nevertheless, to the payment of •$281.73, being the interest of $3,862.24, principal annually to Sarah King, widow of Samuel King, deceased, during her natural life, and after her death the said principal to be paid to the legal heirs of the said Samuel King, deceased.”</p> <p>On executions issued against Daniel King, this property was sold by the sheriff and William F. King, a brother, became the purchaser. On February 6th, 1877, this purchaser made an assignment for the benefit of creditors and the assignee sold one of the tracts at public sale, and on April 1st, 1878, executed a deed for the same to the purchaser, Brodbeck, the consideration being $8,970.87, subject however to the following charge : “Nevertheless subject to a lien of thirty-seven hundred and sixty-two dollars and twenty-four cents ($3,762.24) as a dower fund for the use of Sarah King; the interest thereof shall be paid annually to her on the 1st of April, and the principal at her death to the legal representatives of the said Sarah King, and subject to the claims of the commonwealth, if any.”</p> <p>On December 30th, 1879, Brodbeck and wife conveyed this property to Kain and Rentzel for $14,000. In their deed no mention was made of the charge in favor of Mrs. King, but it contained a covenant as follows: “And the said Jacob Brodbeck and Susan, his wife, for themselves, their heirs, executors and administrators, do by these presents covenant, grant and agree to and with the said parties of the second part, their heirs and assigns, that they, the said parties of the first part, their heirs, all and singular the hereditaments and premises hereinabove described and granted, or mentioned, and intended so to be, with the appurtenances unto the said parties of the second part, their heirs and assigns, against them, the said parties of the first part, their heirs and against all and every other person or persons whomsoever, lawfully claiming or to claim the same or any part thereof, aud especially by reason of the dower fund charged thereon shall and will warrant and forever defend.”</p> <p>On January 26th, 1880, these grantees conveyed this same property to Myers, the plaintiff, by a special warranty deed in which no allusion is made to the incumbrance of Mrs. King. Brodbeck continued to pay Mrs. King the annual interest due her by reason of said incumbrance, for two years after the conveyance to the plaintiff. When the interest of Mrs. King came due April 1st, 1882, Brodbeck refused to pay it, and thereupon Mrs. King brought her action of ejectment against Myers. The latter notified Brodbeck to appear to the action and defend his title against said incumbrance, who refused to so appear and defend. Thereupon, on September 7th, 1882, judgment was entered in default of appearance against Myers for said land, to be released upon the payment of the year’s interest due Mrs. King. To prevent his land from being sold by the sheriff, Myers paid the amount of said judgment and costs, and thereupon brought this action of covenant against Brodbeck.</p> <p>The plaintiff requested the court to charge the jury as follows: “That the plaintiff is entitled in this suit not only to recover the amount of money and costs paid by him in the ejectment against him, but also such sum as will indemnify him against the whole incumbrance upon his land, charged thereon as the dower fund of Mrs. Sarah King.” Refused.</p> <p>The court instructed the jury to find for the plaintiff $254.22, the amount of the year’s interest and costs. Verdict and judgment accordingly. Plaintiff then took this writ, assigning for error the refusal of his point and the charge of the court.</p>

56. Replevin, by A. P. Neff against J. R. Landis to recover two cases of cigars. Pleas, non cepit and property. On the trial, before Livingston, P. J., the following facts appeared: In May, 1883, plaintiff sold to G. G. Landis, k son of defendant, eight cases of cigars to be paid for on delivery at Lima, Ohio. On May 24th, plaintiff shipped two of the cases and, at Landis’ request, gave him ten days time for payment.

459. Ejectment, by Henry Kauffelt against William A. Thompson and Alexander 11.

<p>1. It is the duty of the County Commissioners, under the Act of May 5th, 1876 (P. L., 112) to rebuild a bridge, the road leading to and from which, is a turnpike, when the same lias accidentally been destroyed; and, on their failure to do so, the court will, upon petition, compel them by peremptory mandamus.</p> <p>2. The said Act of May 5th, 1876 is a general Act and repealed all Acts or parts of Acts inconsistent therewith, hence the Acts of February 27th, 1847 (P. L. 170), May 21st, 1857 (P. L. 653), and May 1st, 1861 (P. L. 488), relating to Lancaster county, authorizing the Commissioners to obtain subscriptions for part of the cost, requiring the townships wherein the bridge is situated to pay one third of the cost of rebuilding, and enacting that bridges on turnpike roads are to be kept in repair by the turnpike companies, are no longer applicable.</p> <p>3. It is too late to object that proceedings of a jury in reporting favorably upon the rebuilding of a bridge were irregular, after the report has been confirmed by the court and the bridge rebuilt.</p> <p>4.. The purpose of the Act of May 5th, 1870, relative to the reconstruction of county bridges is sufficiently expressed in its title.</p>

<p>Error to the Court of Common Pleas of Lancaster county: Of January Term 1885, No. 86.</p> <p>This was an action of trespass on the case by Samuel Horst against the Pennsylvania Railroad Company to recover dama-' ges for injuries to his wife, alleged to have been caused 63^ the negligence of defendant. Plea, not guilty.</p> <p>On the trial, before Patterson, J., the following facts appeared : On the morning of July 23d, 1881, plaintiff with his wife and daughter started for the market at Lancaster, in a one horse wagon. He went by way of the Harrisburg turnpike which crosses at grade the defendant’s road from Columbia (connecting with the main line at Dillerville) about one quarter of a mile from Dillerville, and about one mile from Lancaster. At this crossing, which is sixt}” feet wide, there was a freight train cut open and a gap of twenty or twenty-five feet made to allow persons and teams to cross the railroad. Plaintiff testified that he stopped before crossing and being beckoned to come on by a train-hand on the train, drove on, and while on the track there was a rattling noise, resembling the putting on of the brakes, made on or about the train, although no one knew liow or by whom it was made, which caused the horse to take fright and run away; plaintiff's efforts to control him were unavailing: the right hand rein parted where the round and flat parts joined and the pull on the remaining rein caused the horse to turn to the left where there was an embankment; the wagon was upset and broken, its occupants thrown out and plaintiff’s wife injured.</p> <p>The plaintiff presented the following points :—</p> <p>1. If the jury believe that the horse driven by the plaintiff was gentle, and that the plaintiff stopped at a reasonable distance from the railroad, and that after he had stopped he was instructed to advance by one of the employees of the railroad company, and that by reason of such instructions he drove upon the track, and that when his horse and wagon were immediately between the cars there was a noise or rattling on or about the cars, like the putting on or taking off the brakes, or the stretching or relaxing of the couplings, which frightened the horse and caused the accident in question, then their verdict must be for the plaintiff.</p> <p>Answer. Yes. (First assignment of error.)</p> <p>2. No one is chargeable with negligence who has acted upon his best judgment, or who, not having time for reflection or judgment, has failed to act. Such act or omission may be a mistake, but it is not negligence. If, therefore, the jury believe that when the plaintiff advanced upon the railroad track, in obedience to the instructions from the employee to advance, ho acted upon his best judgment under the circumstances, he was not guilty of contributory negligence, and their verdict •must be for the plaintiff.</p> <p>Answer. Yes, we affirm that. (Second assignment of error.)</p> <p>3. One who acts in obedience to the instructions of an officer of the road, cannot be held guilty of contributory negligence.</p> <p>Answer. This is affirmed. (Third assignment of error.)</p> <p>4. Unless the jury are satisfied by affirmative proof that the plaintiff did not use care, the defendant is liable for the consequence of his injury, and their verdict must be for the plaintiff.</p> <p>Answer. Yes. (Fourth assignment of error.)</p> <p>The defendant subpiittcd the following points:—</p> <p>1. In an action of this kind, the burden of proof is on the plaintiff. lie must show a case clear of contributory negligence on his own part, and he must prove negligence on the part of the defendant, contributing to the injury. The defendant is presumed to be free from negligence.</p> <p>Answer. — Yes; and the question of negligence is a question for the jury, unless there be undoubted evidence of clear contributory negligence by plaintiff, when the court must so pronounce it as a matter of law. Here we see no undoubted evidence of clear negligence. It is for the jury, therefore, to say whether there was negligence on the part of the plaintiff, and whether it contributed, to the injury or not. (Fifth assignment of error.)</p> <p>2. The cause of action averred in the narr. is, that by reason of negligence on the part of the defendant, “ its cars then and there struck each other with great violence, the brake rattled with great noise,” and as neither of these allegations is proved, the plaintiff cannot recover.</p> <p>Answer. — The proofs are for the jury; and it is their province to find, from all the evidence, what has been proven respecting the noise and the brake — whether the brake “rattled with great noise; ” and if the jury so find, and find that it was by reason of negligence on the part of the defendant, the company, or its conductors or employees; and find that the rattling and noise frightened the horse, and caused the runaway, then we instruct you that sufficient of the averments contained in the plaintiff’s narr. are proven to enable the plaintiff to recover — if, at the same time, you find that there was no contributory negligence on the part of the plaintiff. (Sixth assignment of error.)</p> <p>3. The proof on the part of the plaintiff is that he had from twenty to twenty-five feet wide in the opening of the train and ample room to cross, and that the cars were standing still, and that other people were driving through the same opening, immediately after the plaintiff went through ; therefore, the jury cannot be allowed to find that the crossing was unsafe or dangerous, or that the defendant was in any way negligent in respect thereto.</p> <p>Answer. — The court declines to affirm that point as a legal proposition. It contains alleged facts principally, and the facts are for the jury. (Seventh assignment of error.) ,</p> <p>4. It was not negligence, on the part of the defendant, for one of its employees to beckon the plaintiff to cross, when all the testimony on the part of the plaintiff is that there was ample room to cross, and that others did cross immediately after without injury.</p> <p>Answer. — We decline to answer this point as a legal proposition. (Eighth assignment of error.)</p> <p>5. There is no evidence that there was any noise unusual or unnecessary, or different from the ordinary noises incident to railroad trains, whether standing still or moving; and the testimony of the plaintiff and his wife is that there was no unusual noise about the train; and there being no other testimony as to what made any noise, there is no evidence of negligence by the defendant as to any noise made.</p> <p>Answer. — This point contains a statement of alleged facts, and we can only say that all the facts are for the jury, and that it is the province of the jury to decide what the evidence in the case proves to their satisfaction. (Ninth assignment of error.)</p> <p>6. The plaintiff having established, by his own testimony, that the cars were standing still when he approached the crossing; that there was a gap or opening in the train 20 to 25 feet wide, for passage through, and that it was sufficient aud ample and that others passed through immediately after the plaintiff without accident or injury; and that when on the crossing his horse frightened at something and ran, aud the plaintiff pulling the lines, the right line broke by the wax-ends pulling out or apart, and by the left line the horse was pulled over a bank into the summer road, and the wagon was upset, and that there was no unusual noise about the train, the plaintiff has shown no cause of action, and the verdict must be for the defendant.</p> <p>Answer. — The court declines to answer this point in the affirmative, it being a statement of alleged facts, and no legal proposition. The jury will find what the facts were from the evidence. (Tenth assignment of error.)</p> <p>7. Under all the evidence in the case, the verdict must be for the defendant.</p> <p>Answer. We decline to affirm this point. (Eleventh assignment of error.)</p> <p>In its charge the court said inter alia as follows:—</p> <p>Here, under the evidence, showing how the train was cut, and showing the space left to pass through, we will leave it as a question of fact' for the jury to say, under the evidence, whether or not this crossing of this public road, the turnpike, was blocked up by the locomotives or ears of the railroad company. (Twelfth assignment of error.)</p> <p>In this case, if you find from the evidence that the plaintiff stopped on the pike, back a distance from where the train of cars crossed the pike, and find that the agent or the conductor called or beckoned to Mr. Horst to cross the track improvidently, the defendant, the company, would be liable. (Thirteenth assignment of error.)</p> <p>Verdict for the plaintiff for $500 and judgment thereon. Whereupon the defendant took this writ assigning for error the answers of the court to plaintiff’s and defendant’s points and the portions of the charge quoted above.</p>

<p>Appeal from the Orphans’ Court of Lancaster county: Of January Term 1885, No. 362.</p> <p>This was an appeal by Jacob Rife from a decree of the said court sustaining exceptions to the report of an auditor appointed to make distribution of the funds in the hands of Milton Heidlebaugh, administrator of the estate of Isaac Rife, deceased.</p> <p>. The facts as found by the Auditor (Thomas B. Cochran, Esq.,) were substantially as follows: On October 13th, 1868, Isaac Rife made a voluntary deed of all his property to one Uriah Eckert, in trust for his own maintenance and support. This deed contained, inter alia, the following testamentary clauses: “And immediately after the decease of the said Isaac Rife, should any real estate be left belonging to said trust, the same shall be sold by my said trustee, and the proceeds arising therefrom and said principal sum, together with all my other property, shall be equally divided among my three named children, share and share alike, to wit: Catharine, intermarried with Richard Stewart; my sons Jacob and Levi; or in case of the death of either of them, to their heirs or representatives.</p> <p>* “It being understood and intended that no part of this trust estate is to be paid by my said trustee after my decease to my son William P. Rife, but the whole thereof to be given in equal shares to my daughter and sons, or their representatives, as above directed and designated.”</p> <p>Eckert accepted the trust and performed the duties required under its provisions until December 13th, 1879, when he filed his account, and had a settlement with Rife, the balance in his hands in favor of the trust being $1,792.25.</p> <p>On December 13th, 1879, Isaac Rife being entitled to other moneys, which he inherited from his half-sister, Keziah Eckert, who had died several years after the execution of the first deed, made another and second deed of trust to Milton Heidlebaugh of all the moneys so inherited “and also the just and former sum of $1,792.25, received by said Heidlebaugh from Uriah Eckert, my former trustee.” This deed was also in trust to support the grantor during his life, it contained no direction as to what should be done with or who should receive the trust money remaining at his decease, but contained a clause, as follows: “ It is hereby understood that in case said Rife should die without leaving a last will and testament, which he hereby reserves the power to make, his son, William P. Rife, shall receive no share of his property, unless otherwise disposed of by the last will and testament of said Isaac Rife.”</p> <p>Isaac Rife died in 1881, leaving a widow and four children, Jacob, Levi, and William P. Rife and Catharine Stewart. On September 27th, 1881, Heidlebaugh took out letters of administration on the estate of Isaac Rife, and on October 5th, of same year, he filed an account in the' Common Pleas as successor of Uriah Eckert and under the second deed of trust, showing abalance of $1391.26 and when he filed his inventory as administrator on October 12th, 1881, he charged himself with this sum.</p> <p>On May 20th, 1884, Heidlebaugh filed a final account as administrator showing a balance of $3,160.18 for distribution. This fund was referred to the Auditor to distribute and he divided the same, except the widow’s dower, among the three children named in the first deed of trust. To this report B. F. Hull, to whom William P. Rife had assigned his interest in said estate, filed exceptions which were sustained by the court, Livingston, P. J., who held that the second deed revoked the first and that hence the decedent died intestate and William P. Rife was entitled to come in equally with the children and accordingly entered a decree to that effect.</p> <p>Jacob Rife then took this appeal assigning for error this action of the court.</p>

1. Assumpsit, by John H. Moore against the firm of Rugg & Bryan, to recover damages for a breach of contract. On the trial, before Livingston, P. J., it appeared that in July, 1879, the defendants, who were grain dealers in Peoria, Illinois, thi’ough their agent in Lancaster, sold to the plaintiff six car loads of corn at a certain price per bushel, to be delivered on cars at Landisville. On August 16th, the first car arrived, and also two drafts.

<p>Error to tbe Court of Common Pleas of Selmylhill county: Of January Term 1885, No. 455.</p> <p>Mandamus, by the Commonwealth of Pennsylvania at the relation of Thomas W. Griffiths, Frank M. Bertram and John Haley, Auditors of Schuylkill county, against William J. McCarthy, Protbonotary of said county, to compel him to file copy of Lis fee account.</p> <p>The petition of tbe relators averred as follows: That they were duly elected Auditors for said county, were qualified according to law and entered upon the duties of their office on January 5th, 1885. That upon the same day William J. McCarthy, who bad been elected to the office of Prothonotary, entered upon the performance of the duties of bis said office. That the legislature bad passed an Act, approved on June 22d, 1883, entitled, “An Act fixing tbe salaries of county officers in counties containing over one hundred thousand and less than one hundred and fifty thousand inhabitants, and requiring the payment of the fees of such officers into the respective county treasuries,” which said Act provided that all fees received by each and every county officer in all counties containing such population shall belong to the county iii and for which said officers are severally elected or appointed, except such taxes and fees asare levied for the state, “ and none of said officers shall receive for his own use or for any use or purpose whatever, except for the use of the proper county, or for the state, as the case may be, any fees for any official services whatever.”</p> <p>By the second section of said Act, it is made the duty of each of said officers to keep a special account book, the form of which shall be prescribed by the county Auditors in counties where there is no Controller, in which shall be entered all moneys received for fees and all moneys earned, with the date, and from whom or for what received of due, and on the first Monday of every month each of said officers is required to pay to the Treasurer of the proper county all fees so received during the preceding month, taking duplicate receipts therefor, one of which shall be deposited with the county Auditors together with a transcript in detail of his fee account book or books for the preceding month to which he shall make oath or affirmation before the county Auditors. It is further made the duty of the county Auditors to meet on such first Monday of each month to receive such returns, to verify them and to file said receipt and transcript in the office, and to charge the county Treasurer with the money for fees so paid in.</p> <p>By the fifth section of this Act, it is provided that “ all county officers, within the counties to which this Act applies, whether elected by the people ór appointed according to law, and their several deputies and clerks shall be paid for their services by fixed and specific salaries, which shall be a charge upon the treasury of the county to which each shall respectively belong . . . and said salaries shall be paid monthljq except as herein otherwise provided, on the second Monday of the month succeeding that in which his services were rendered; but no warrant shall be drawn for the payment of any of said officers, his deputies or clerks, who shall not have filed the receipt and transcript provided for in this Act.”</p> <p>The petition averred, further, that in pursuance of this Act, the petitioners on the first Monday of February, attended the court house in Pottsville, to receive the returns of the county officers as required by the said Act. That the said William J". McCarthy, Prothonotary, as aforesaid, though requested so to do, neglected and refused to file with the said Auditors a transcript in detail of his fee account book or books for the preceding month, as required by the said Act of Assembly; and that owing to this refusal, the petitioners were unable to examine and verify the accounts of the said Prothonotary.</p> <p>The petitioners therefore prayed the court to issue a mandamus to the said William J. McCarthy, commanding him to file a transcript in detail of Ins fee account book or books for the month of January, A. D. 1885.</p> <p>The answer of McCarthy admitted the facts of the above petition, but claimed that the Act of June 22d, 1883, upon which it was based, was void and of no effect for the following reasons: (1) Because it is in violation of Art III., sec. 7 of the Constitution. (2) Because it is in violation of Art III., sec. 3 of the Constitution. He therefore prayed judgment against the petitioners and that he recover his costs.</p> <p>The court, Pursuing, P. J., made absolute the rule and granted the writ of mandamus. Whereupon respondent took this writ, assigning for error this action of the court.</p>

<p>Where a father, who is insolvent, deeds property to Ms married daughter from natural love and affection, and the gift is accepted by the daughter and her husband in good faith and without knowledge of the donor’s insolvency, and the son-in-law makes valuable improvements thereon, a court of equity, on the insolvency becoming known, will not order a reconveyance of the property without allowing the son-in-law for the amount expended by him upon the premises.</p>

<p>1. A party having a present claim against an estate notoriously insolvent, has a right of set-off against the same, when the debt sued upon and against which the set-off is claimed matured after the death of the deceased insolvent.</p> <p>2. In such a case the' defendant’s right of set-off existed at the time of the death of the holder of the note upon which said suit was brought, and the moro fact of the non-maturity oí tho noto at this time could not affect this right, which existed prior to tho right of other creditors to an equal distribution.</p> <p>8, A., a banker, died insolvent; sit the time of his death B. had about $760 on deposit with him, subject to (¡heck. Prior to A.’s death B. had a noto discounted at A.’s bank for $650, which matured about a week after A.’s death. After tho maturity of said noto, a ease was stated between A.’s administrator and B., for the opinion of tho court on the question whether T?. could set off fhe amount of Ins deposit against the note. IJeltZ, That this sot-off should be allowed.</p> <p>4. Boslor v. Exchange Bank, 4 Barr, 82, distinguished.</p>

446. Scire facias sur mortgage, by Joel W. Strawn, assignee of Levi L. Jacoby, against Ephraim Shank, with notice to Franklin T. Romig, John S. Romig, David T. Romig, William Kruger, Edwin Kiser, Jacob Sumstone and Magdalena Ruth, terre-tenants. The death of the plaintiff having been suggested of record Eli W. Strawn his administrator was substituted as plaintiff. The suit was brought on a mortgage made by Ephraim Shank to Levi L. Jacoby dated March 16th, 1874.

<p>1. It is not necessary to show that a prisoner had actual or special malice towards a person whom ho has killed iu order to convict him of murder in the first degree; malice will be implied from conduct which shows cruelty of disposition and recklessness of consequences, and the intent to take life may be inferred from the savage nature of an attack.</p> <p>2. In charging a jury in a homicide ease, the court may express an opinion that there isnoiliing in the case to reduce the crime to manslaughter when the same is not given as a binding instruction, and is, moreover, warranted by the evidence.</p> <p>;1. The Commonwealth, on cross-examination, asked a witness, who had been called on behalf of the prisoner to prove that the latter was intoxicated, how the prisoner acted, what he said and what ho was doing when he saw him. Objected to as improper cross-examination.</p> <p>JMd, That this evidence was admissible for the purpose of enabling the jury to determine whether the prisoner was intoxicated or not.</p> <p>•1. A witness for the Commonwealth testified, under objection, to a confession of the prisoner, which was elicited by the following question: “ Then 1 asked him (the prisoner) how it came that you killed that fellow ?”</p> <p>Held (1), That this was not such a question as assumed the guilt of the prisoner, and that the confession which it brought forth was properly admitted iu evidence.</p> <p>(2) That, as the prisoner had objected to the admission of the evidence, the action of the court in subsequently striking out this confession was not such error as tins prisoner had a right to complain of.</p> <p>5. The refusal of a court to grant a new trial is not assignable for error even where there is after-discovered evidence to contradict a juror’s statement on his voir dire as to his competency to sit as a juror in the case.</p>

<p>1. A party cannot, by a bill in equity, obtain a rehearing of a matter which a eourt'of competent jurisdiction has finally passed upon. But no decision of a court upon matters not within its jurisdiction will operate as such a bar.</p> <p>2. Mistakes of law or fact in an award of arbitrators can only be coi'rected by appeal; hence the fact that the merits of a case were presented on a motion to strike off an award for alleged mistakes of law and fact would not debar the unsuccessful party from subsequently invoking the equitable powers of the court in the same matter.</p> <p>3. A mortgage of a decedent’s real estate, grounded upon a decree of the Orphans’Court, cannot be attacked in a collateral proceeding; any irregularity in the procuring of the same can be amended only in that court or by'an appeal to the Supreme Court.</p> <p>4. When an Orphans’ Court authorizes an administratrix to mortgage decedent’s real estate for debts, such administratrix must make return of her proceedings to said court for confirmation. Until such confirmation, the heir-at-law may interpose any objection to the execution or delivery of such mortgage.</p>

<p>Error to the Court of Common Pleas of Blair county : Of July Term 1883, No. 208.</p> <p>Assumpsit, by James Gardner, to the use of Christian Baumgardner et al. against John Lloyd. Plea, non-assumpsit.</p> <p>On the trial, before Dean, P. J., the following facts appeared: For some years prior to October, 1873, William M. Lloyd had been engaged in business as a banker, at Altoona, in the name of William M. Lloyd & Co., at Ebensburg in the name of Lloyd & Co., and at Bedford in the name of W. M. Lloyd. He was also interested in banks at Tyrone, Latrobe, East Liverpool, Ohio, New York, and at other points. In the financial troubles of 1873 he became embarrassed, and in the month of October of that year his banks at Bedford, Altoona and Ebensburg closed their doors. He expressed the ability and willingness to pay his creditors in full, with interest, if they would grant him time. Either by bim, or at his suggestion, a meeting of his creditors was called at the opera house in Altoona on the afternoon of November 8th, 1873. A large number of his creditors, living in Altoona, with perhaps some others, attended the meeting; G. Clinton Gardner was elected President and E. B. McCruin acted as one of the Secretaries. The President stated that the object of the meeting was to hear a proposition of Mr. Lloyd for an extension by his creditors, ami to ascertain whether the creditors would give their assent to this proposition. Lloyd was present with his counsel, S. S. Blair; the proposition which he had to make was stated by Mr. Blair. It was also read from' a paper of which the following is a copy :</p> <p>“Altoona, November 8th, 1878.</p> <p>“To the creditors of William M. Lloyd & Co., Altoona; Lloyd & Co., Ebensburg; and W. M. Lloyd, Bedford: Having been obliged to suspend the business conducted by me under the above names, I respectfully invite your consideration of the following proposition: 1st. I propose to pay to the said creditors debt and interest in full, 20 per' cent, in one year, 30 per cent, in two years, 25 per cent, in three years, and 25 per cent, in four years, from the acceptance of this proposition. 2d. Inasmuch as I own a large amount of real estate, and many creditors might be willing to purchase portions of it in payment of the amounts due them, who would not otherwise wish to purchase, I request your consent that I may be permitted to make such sales. 3d. Where certificates are held they shall be marked extended as per agreement, or surrendered and new ones issued.</p> <p>(Signed) “William M. Lloyd.” •</p> <p>Blair read at the same time a statement of Lloyd’s assets and liabilities; this statement had also been printed on slips and distributed on the seats of the opera house before the meeting was organized. It declared that the liabilities were $602,449.36 ; and that the assets, consisting of bills discounted, judgments, bonds, mortgages, banking house and lot, etc., amounted to very nearly the same sum, and in addition to this that Lloyd owned real estate in this and other states valued at $705,960.</p> <p>As a further inducement for the creditors to sign this agreement, it was announced that there was a written guaranty, signed by responsible men, that Lloyd would meet these extended payments as they became due. This guaranty, which was read, to the meeting, was as follows:</p> <p>“Whereas, The separate creditors of William M. Lloyd, viz: William M. Lloyd & Co., Altoona; William M. Lloyd, Bedford, and Lloyd • & Co., Ebensburg, have been invited by him to consider a proposition for an extension of the time of payment of their respective claims: Now, in consideration of the acceptance of the said proposed extension by said creditors, and as an inducement to the creditors to accept the same, we whose names are hereto attached do severally promise and agree to and with the Hon. James Gardner, of Hollidaysburg, Pa., for the use of the said creditors, that we will severally, to the extent of the sums set opposite to our respective names guarantee, and by this instrument do guarantee the j>ayment of the said debts to said creditors by said William M. Lloyd at the times and in the manner mentioned in the said proposed extension and accepted by the said creditors.”</p> <p>John Lloyd, the defendant, signed this guaranty and put the sum of $10,000 opposite his name. Ninety-one others signed their names to this guaranty and each limited his liability by the amount set opposite his name, the aggregate being $425,000,</p> <p>A large number of- the creditors gave their assent to this proposition at the meeting and many more within a few weeks, but there was a number of them who never signed.</p> <p>In December 1873, Wm. M. Lloyd resumed business at his banks in Altoona and Ebensburg, and continued in business until after most of the certificates of the first payment of 20 per cent, fell due. These first certificates were generally paid, and Lloyd continued in business until September 18th, 1875, when some of the creditors brought suit against him and were about to obtain judgment, when a voluntary assignment was made by Lloyd for the benefit of creditors; and on November 11th of the same year, a number of his creditors, including some of the present plaintiffs, petitioned the United States Court of the Western District of Pennsylvania to have him declared an involuntary bankrupt. Lloyd resisted this proceeding, but was finally declared a bankrupt on June 24th, 1878. The assignees in bankruptcy realised on the estate sufficient to pay twenty per cent, to all creditors besides the costs. The second, third and fourth extension certificates held by the use plaintiffs not having been met at maturity, this action was brought on the guaranty in the name of the legal plaintiff to the use of the equitable plaintiffs named, against John Lloyd, one of the guarantors.</p> <p>The defendant requested the court to charge, inter alia, as follows: First, “that as no consideration for the offered guaranty of defendant moved from James Gardner, or was by its terms to move from him. but was to move from the several creditors of William M. Lloyd, this action cannot be sustained in his name.” Answer. Affirmed. (Third assignment of error.)</p> <p>Seventh, “ the creditors of William M. Lloyd, named in the proposal submitted by him for their consideration, being required in a reasonable time to accept the same, they were bound to do so if they accepted, and give notice to the defendant of their having done so, relying on his offer of guaranty, and the proof being that they did not accept in a reasonable time, and it being neither averred nor proved that notice of their acceptance of the offer of guaranty was given, the plaintiff cannot recover.” Answer. “This point is affirmed thus far: there was no proof of notice of acceptance by the creditors to the guarantors, therefore there can be no recovery."’ (Eleventh assignment of error.)</p> <p>The court charged the jury, inter alia, as follows:</p> <p>“ Where a guaranty is conditional, not absolute, notice of its acceptance by him who gives credit on the faith of it, to him who makes it, is generally indispensable. This is the settled law of Pennsylvania, as well as of most of the other states ; it is admitted to be the law by all the able counsel wlio have argued this case. This is not an absolute guaranty; it is plainly conditional on the acceptance of the proposition by the creditors, and is but an offer to guarantee. They guarantee that William M. Lloyd will pay what he owes, if the creditors extend the time of payment one, two, three and four years. If they did so extend on the faith of the guaranty, then the guarantors, under the law, were entitled to notice. No form of notice is specified in the contract; it is silent in this particular, and the law then imposes on the creditors the duty of notifying the guarantors severally, if their contract was several. It is urged that this would have been most vexatious and inconvenient to the creditors because of their number, and because of the number of the guarantors. This is true, but id only shows that provision should have been made in the contract, to avoid inconvenience, or that the creditors should not have assented to it in view of the inconvenience which would result from it. Notice might have been waived by the contract, or the fact that William M. Lloyd resumed business might have been stipulated as notice to the guarantors that the creditors had extended; but we cannot, in the face of the law, imply, as against these guarantors, that notice was not necessary or was waived because of the inconvenience of giving it.” ..... “Perhaps the evidence would warrant you in finding that many, or all, of the creditors assented to the proposition, relying on the promise of the guarantors; and that William M. Lloyd had knowledge of this, but there is no evidence at all to show that this defendant and the other guarantors had such knowledge, or that William M. Lloyd was their agent to receive notice; and the law will not imply that his knowledge was their knowledge.”</p> <p>“In a suit against sureties or' guarantors, the law holds the-plaintiff to strict proof of liability ; there is no implied obligation ; they are bound by their contract, or they are not bound at all; men are bound to pay their own debts; in the absence of an. express contract, the law implies one; but it will imply no contract to pay other men’s debts nor any essential element of such contract, such as waiver of notice, where the settled law requires notice that an offer to guarantee has been accepted. It was of vital importance to these guarantors that, if their offer was accepted, they should have notice of it.</p> <p>“ But, however this may have been, we are of the opinion that notice was indispensable under this contract; there is no evidence of notice here to submit to you; it is a question for the court, and while we, as doubtless you do, sympathize with those who suffered so severely by Mr. Lloyd’s disastrous failure, our sympathy cannot justify us in changing the law. Therefore, taking the responsibility, which is with the court alone — you share no part of it — as a matter of law, we direct you to find a verdict for the defendant.”</p> <p>Verdict and judgment accordingly. Plaintiff then took this writ, assigning for error, inter alia, the answers to the points as above and the portion of the charge quoted.</p>

<p>Where a claim ior paving is made under the Act of April 3d, 1851, (P. L. 320) which provides that such a claim is recoverable “as claims are by law recoverable under the provisions of the law relative to mechanics’ liens,” it must be filed within thirty days after the expense has been incurred as provided in the act of 1851. Plaintiff has not six months within which to file it, as specified in the mechanics’ lien law of June 16th, 1836, (P. L. 699) as the length of time a debt remains a lien without claim filed. :</p>

■ Error to the Court of Common Pleas of Warren county: Of January Term 1885, No. 96. Assumpsit by Joseph A. Neill against George S. Lacy and R. H. Kline to recover back money paid for taxes upon land owned by defendants which plaintiff claimed he was compelled to pay in order to save his mineral rights in the same.

<p>*1. The general borough law of April 3d, 1851, (P. L. 820) does not give jurisdiction to a burgess to impose flues for violations of borough ordinances. lie has no judicial authority outside of that which is expressly conferred upon him by said Act.</p> <p>2. Reid-«. Wood, 102 Pa. St., 812, distinguished.</p>

<p>Error to the Court of Common Pleas of Juniata county: Of January Term 1885, No. 249.</p> <p>Covenant, by William S. Oles against Gideon H- Seiber, to compel the payment of purchase money alleged to be due from the defendant upon a sale of real estate.</p> <p>Upon the trial, before Barnett, P. J'., the following facts appeared: Richard Bell died seised of the land in dispute, leaving a will, which was probated October 1st, 1823, wherein ho made the following provision in regard to said land: “ I allow my executors to sell to the best advantage, and convey the same as fully as I myself could now do the same, and the neat proceeds to distribute equally among my daughters, Martha, Rebecca, Mary and Sarah.”</p> <p>The daughters elected to take the land, and two of them, Martha and Rebecca, conveyed their interests, about the year 1825, to the other two, Mary and Sarah. Mary Bell married Evered Oles on May 4th, 1826, and on April 1st, 1831, Sarah with her husband, Armstrong Crozier, conveyed her interest to said Evered Oles, thereby vesting in Evered and Mary Oles each an undivided moiety of the tract.</p> <p>Evered Oles and Mary his wife, by their indenture dated the 29th October, 1831, duly acknowledged and recorded on the 13th August, 1833, for the consideration of $1,600 sold and conveyed “one undivided moiety or half part” of this same land to Jacob A. Christy; and Jacob A. Christy by simultaneous indenture, recorded on the same 13th August, 1833, and for the same consideration sold and conveyed “one undivided moiety or half part ” of the same tract of land to Evered Oles.</p> <p>Evered Oles continued to hold possession until his death on March 30th, 1877: Mary, his widow, died on April 7th, 3877; they left no issue. By his will Evered Oles devised the property in dispute to William S. Oles in fee. The said William S. Oles, by articles of agreement, covenanted to sell and convey this land to Gideon H. Seiber. The defendant, Seiber, Refused to accept the deed tendered upon the ground that the plaintiff had not a marketable title. Plaintiff then brought this action.</p> <p>The court charged the jury, inter alia, as follows: We prefer to say to you, therefore, as we now unhesitatingly do, that, according to the plain intent of the parties thereto, the simultaneous deed of the 29th October, 1831, conveyed to Evered Oles a good and sufficient title; so that thenceforth he was sole owner of the entire title to the land so devised as aforesaid formerly from Richard Bell. If, however, there could be any room for doubt as to the propriety of this instruction, then, certainly, the principles of estoppel and construction contended for by plaintiff, that a deed must be taken most strongly against the grantors, and the Statutes of Limitation are in aid of the plaintiff’s title; and we feel more completely satisfied that the plaintiff’s title is indubitable, and that your verdict should be in his favor.”</p> <p>Verdict for plaintiff for $8,712.22, and judgment thereon. Defendant then took this writ assigning for error, inter alia, the portion of the charge above quoted.</p>

<p>1. A deed duly executed and acknowledged by one of several grantors is entitled to be recorded, although the execution and acknowledgment by others of them be irregular or defective.</p> <p>2. The Act of April 27th, 1855, (P. L. 369-, Br. Purd. 600) provides for the mortgaging oí a leasehold of “ any colliery, mining land, manufactory or other premises with all the buildings, fixtures and machinery thereon to the lessee belonging and thereunto appurtenant, with the same effect as to the lessee’s interest as in the ease of the mortgaging of a freehold interest and title as to lien notice evidence and priority of payment; Provided, that the mortgage be in like manner acknowledged and placed of record in the proper county together with the lease,” and the Act of April 3d, 1868, (P. L., 57 Br. Purd. 600) provides that “ in mortgages upon leasehold estate, the mortgagee shall have the same remedies for collection thereof which mortgagees of real estate have under the laws of this Commonwealth for the collection of such mortgages.” A mortgage of a leasehold was executed November 29th, 1882, and recorded in one of the mortgage books of Warren county on December 15th, 1882. The lease itself dated October 18th, 1882 was recorded at' the same time and in immediate connection with the mortgage:</p> <p>Held that this was a recording of the mortgage “ in the proper county together with the lease.”</p> <p>Glading v. Prick, 7 Norris, 460 followed.</p> <p>3. The Act of May 13th, 1876 (P. L., 160, Br. Purd. 600) provides “ if the lease shall have been recorded in the deed books of the proper county before the execution of the mortgage, or shall thus be recorded at the time of recording the mortgage, such recording shall be deemed a sufficient compliance with the requirements of the Act ” of April 27th, 1865.</p> <p>Held, that tírese acts were in pari materia and should be construed together, and that the latter Act was intended to apply only to cases where by reason of the lease having been previously recorded or other similar cause the provision of the former Act as to recording the mortgage and the lease together cannot be literally complied with.</p> <p>4. The lien of a leasehold mortgage duly acknowledged and recorded in accordance with the Act of April 27th, 1855, is not divested by a sheriff’s sale upon a judgment subsequently recovered against the mortgagor. Such a mortgage is regulated by* the same rules as govern the mortgage of a freehold interest.</p>

<p>Error to the Court of Common Pleas of Warren county: Of July Term 1885, No. 72.</p> <p>Trover and conversion, by W. W. Weston, A. Weston and O. Weston, doing business as Weston Brothers, against J. D. Gill, to recover damages for the conversion of an engine and belt claimed by the plaintiffs as mortgagees of the same in connection with a certain leasehold from one A. R. Curtis. This mortgage was that involved in the preceding case of Gill v. Weston,'in ejectment. Both cases arose upon the same facts, and were argued together.</p> <p>At the trial,before Brown, P. J., the plaintiffs proved under objection by the defendant a lease from Dorsey Bros, and II. B. Porter and A. R. Curtis dated October 18th, 1882, and recorded December 15th, 1882, in mortgage book F., 564, and a mortgage of the same “ together with all machinery and fixtures thereon, one boiler one engine two tanks 1,000 feet tubing 400 feet casing, - feet sucker rods engine house derricks and all tools thereon and all and singular the appurtenances thereunto belonging,” dated November 29th, 1882, and recorded December 15th, Í882, in mortgage book F., 569.</p> <p>The plaintiffs proved that A. R. Curtis went into possession ■under the lease and had on the premises two engines, two belts and three completed rigs. He lent to Adams & Story, operating an adjoining tract, a boiler, engine and belt, without the knowledge of Weston Brothers, from which the defendant Gill removed them. The defendant objected to the evidence in relation to the belt, as it was not named in the leasehold mortgage and could not be comprehended under the term “ appurtenances.” The objection was overruled and defendant excepted. (Third assignment of error.)</p> <p>It appeared moreover that there was another engine upon the premises which had not been removed and that the engine which was removed from the Adams & Story lot had previously-been dismantled or taken to pieces, by whom it was not shown. The defendant claimed title to the goods as sheriff’s vendee under a judgment entered on sundry mechanics’ liens filed against Curtis et al„ doing business as the Florence Oil Company, which were filed on May 3d, 1883.</p> <p>The defendant requested the court to charge the jury :</p> <p>1. The mortgage in evidence containing no reference to the book and page of the record of the lease, as required by law, and the lease not being recorded in the deed boolrs of the proper county, as required by law, is invalid as a statutory lien, and the plaintiffs having taken no possession under it, it gives them no rights as against a subsequent execution creditor or the purchaser under such execution. Refused. (Fourth assignment of error.)</p> <p>2. The mortgage at best is notice of a lien on the property plainly covered by it, and as it expressly names among the articles mortgaged “ one engine,” it is no notice of a lien on a second engine not on the mortgaged premises, especially while there is still one engine remaining thereon. Refused. (Fifth assignment of error.)</p> <p>The court charged the jury as follows:—</p> <p>“On the 18th of October, 1882, A. R. Curtis took'a lease for a term of years for some twenty acres of land for oil purposes, in Mead township. This purports to be signed by Dorsey Bros, and H. B. Porter.</p> <p>On the- 29th November, 1882, Curtis made a mortgage to Weston Bros, of this leasehold, together with the fixtures thereon, including as claimed by the plaintiffs, the engine and belt, the subject of this suit. Mr. Curtis testifies that the engine and belt were on the property at the time of the execution of -the mortgage. If this is so, then we say [the mortgage vests in the plaintiffs the right to follow the property wherever they could find it, and this notwithstanding the property may have been, removed from the leasehold with the permission and consent of Mr. Curtis.] Mr. Curtis had no right as against the plaintiffs, to permit his property to be taken to the Story & Adams lease, and Story & Adams had no right to permit Mr. Gill to take the property from there. Mr. Curtis having mortgaged the property to plaintiffs, and that morL gage being of record, the plaintiffs have the right to follow it into the hands of any person with whom it may be found, and may, under the undisputed evidence, maintain this suit against Mr. Gill for taking the property. In other words [the plaintiffs having a mortgage on the property, cannot be deprived of if in any other way than by their consent, the mortgage being upon record and open to the world.</p> <p>“ The only question for your determination, is the value of the property, at the time and place, and in the condition that it was at the time Mr. Gill took it,] to which in the way of damages you can add interest from that time to this.</p> <p>“ Of course, if he had nothing to do with disabling the engine and merely took the pieces, it is only with the value of those pieces that he should be charged.”</p> <p>Verdict for the plaintiffs for $120 and judgment thereon. Whereupon the defendant took this 'writ assigning for error the admission in evidence of the oil lease and the mortgage thereof (first and second assignments); the admission of evidence relating to the belt (third assignment): the refusal of defendants’ points as above (fourth and'fifth assignments), and the passages of the general charge noted above in brackets (sixth and seventh assignments). Of these the first, second and fourth assignments relate to questions argued and determined in the foregoing case of Gill v. Weston, No. 73 of July Term, 1885.</p>

<p>Error to the Court of Common Pleas of Warren county: Of January Term 1885, No. 457.</p> <p>Assumpsit by William Toby and D. B. Toby, doing business as William Toby, for use of D. B. Toby against S. P. Hall and Henry Souther, executors of the will of Orris Hall, deceased. Subsequently, the court on motion of plaintiffs’ attorney amended the record so as to make D. B. Toby alone the plaintiff. The defendants afterwards moved to strike off this order for the following reasons: (1.) The motion of plaintiffs was not based upon an affidavit. (2.) The same was made improvidently and without notice to the defendants. (8.) That a trial of the cause upon the merits cannot be had on the part of the defendants, if said order and alleged amendment is allowed to stand. This motion was overruled by the court.</p> <p>On the trial, before Brown, P. J., the plaintiff offered in evidence a writing, of which the following is a copy:</p> <p>$551.50. Warren, Aug. 18, 1879.</p> <p>For value received I promise to pay to Wm. Toby, or order, five hundred and fifty-one 50-100 dollars with interest.</p> <p>Orris Hall.</p> <p>On the back of this paper was the following transfer or assignment:</p> <p>“ For value received I hereby assign, transfer and set over to D. B. Toby all my right, title, interest and claim in the within note. " Wm. Toby,</p> <p>Tionesta, Nov. 21, 1881. D. B. Toby.”</p> <p>Defendants’ counsel offered in evidence an order, which reads as follows: “Warren, Pa., August 20, 1881; Orris Hall, Esq., please pay to G. L. Friday or bearer, $502.71, for amount of our book account, and charge same to our account. (Signed,) Wm. Toby and Harry Sweet.” Signature of Wm. Toby, admitted. To be followed by proof, that this order has been paid by the executors of Orris Hall, and that the order is now offered as a set-off to the claim of the plaintiff in this case.</p> <p>Objected to, on the ground that it appears to be the joint order of Wm. Toby and Harry Sweet and that it is incompetent and irrelevant; the defence is inadmissible in this action.</p> <p>Objection sustained and evidence rejected. Exception. (Third assignment of error.)</p> <p>.Defendants further offered in evidence a settlement made between Orris Hall and William Toby and Harry Sweet, dated July 21st, 1881, for the purpose of showing a set-off and that there was a settlement of this note at that time. Objected to, on the ground that the paper offered purports to be a partnership settlement between the parties thereto and is not a proper subject of set-off in this action and that the evidence is incompetent and inadmissible. Objection sustained and evidence excluded. Exception. (Fourth assignment of error.)</p> <p>The court directed the jury to find a verdict for the plaintiff. Verdict for the plaintiff for $724.57 and judgment thereon. Defendants then took this writ assigning for error the allowance of the amendment changing the name of the party plaintiff and the refusal to admit the evidence offered.</p>

<p>Error to the Court of Common Pleas of Juniata county: Of July Term 1885, No. 29.</p> <p>Debt, by Enoch Beale against the Huston Township Cooperative Mutual Fire Insurance Company, upon a policy of fire insurance.</p> <p>Plaintiff brought this .action and filed his narr. on March 15th, 188,4. Two clays later arbitrators were chosen, who filed an award in his favor. Defendant appealed from this award and pleaded nil debet and covenants performed absque hoc; and also placed the ease on the trial list for the term beginning February 2d, 1885.</p> <p>On December 25th, 1884, a rule was entered on the defendant for a bill of particulars; and on January 12th, 1885, plaintiff filed an affidavit of the amount of his claim and a copy of the instrument sued upon, of which he gave defendant notice in writing,</p> <p>On January 14th, defendant filed a hill of particulars alleging (1) that the plaintiff had taken additional insurance in violation of his policy; (2) that the plaintiff was the author of the fire.</p> <p>Tlie cause was fixed for trial on February 5th, 1885, but on February 3d, the Prothonotary, at the instance of plaintiff’s attorneys, entered judgment in favor of the plaintiff for 1440.50 for want of an affidavit of defence.</p> <p>Rule 4 of the court of common pleas of Juniata county provides as follows: § 14. “In actions on recognizances, judgments, .....policies of insurance, book accounts, bonds, bills, notes and other instruments of writing for the payment of money, and in all actions on contract for the payment of money, either express or implied, and whether the same be in writing or not, and in all appeals from the judgments of justices' of the peace, if the plaintiff shall, ten days before the return day of the writ, with his declaration or statement when necessaiy, or in cases of appeal on or before the first day of the term to which the appeal is entered, file an affidavit stating the amount he verily believes to be due from the defendant, together with a copy of the book entries or instrument upon which the suit is brought, or when the claim is not evidenced by writing, a brief setting forth a full and detailed statement of the same, verified as aforesaid, he shall be entitled to judgment at any time after the second Saturday from the return day of the writ, unless the defendant shall have filed an affidavit of defence.”</p> <p>“Section 15. In lieu of a copy of the instrument required by the preceding rule to be filed by the plaintiff, when the action is upon a record of this court, or upon a mortgage, mechanic’s lien or recognizance in the Orphans’ Court, Oyer and Terminer or Quarter Sessions, it shall be sufficient if the plaintiff file, with this prsecipe or otherwise, a reference to the place where such record or other instrument may be readily found by the defendant, should he desire an inspection of the same. In any such case plaintiff's affidavit is not-inquired.”</p> <p>“Section 17. If the plaintiff omit to file his statement of claim or reference as provided for in Section 15 on of before the return day of the writ, or in cases of appeal, on or before the first day of the term to which the appeal is entered, he may, nevertheless, take judgment at any time after twenty days’ notice to the defendant, or to his attorney of record in the suit, of the filing of the same, unless an affidavit of defence as aforesaid be filed.”</p> <p>Subsequently a motion was made by defendant to open the judgment which was entered in accordance with the above rules. The court, Barnett, P. J.. opened the judgment upon condition that the evidence should be confined to the second item of defendant’s bill of particulars, thus excluding all evidence as to the plaintiff’s breach of contract.</p> <p>The cause proceeded to trial on this issue and the jury rendered a verdict for the plaintiff, upon which judgment was subsequently entered.</p> <p>Defendant took this writ, assigning for error the condition imposed by the court in opening the judgment, whereby defendant was precluded from giving evidence to sustain the first item in his bill of particulars.</p>

<p>Appeal from the Court of Common Pleas of Warren county: Of January Term 1885, No. 473.</p> <p>Appeal of W. B. Roberts and Son from a decree of said court dismissing their exceptions to and confirming the report of the Auditor appointed to make distribution of a fund raised from the sale of a leasehold interest in a tract of land which was taken in execution and sold as the property of Thomas Kervin.</p> <p>Before the Auditor, Charles Dinsmoor, Esq., the following facts appeared: W. B. Roberts and Son brought exemplifications of several judgments against Thomas Kervin amounting to about $1,800, from McKean county, and on June 14th, 1883, issued executions upon them, under which the sheriff of Warren county sold Kervin’s personal property, consisting of leasehold of sixty acres of land with three oil wells and their appurtenances. The plaintiffs bought in the property for $1,000; of this sum $95.65 was applied to costs, $487.26 was applied on the debt in this case, and the balance, which was paid into court, constituted the funds in the hands of the Auditor.</p> <p>Patrick Kervin, a brother of defendant, gave notice to the sheriff two days before the sale of a claim for wages under the provisions of the Act of April 9th, 1872 (P. L. 47). This notice was in the following form:</p> <p>“ Take notice, that I claim for wages, for manual labor, out of first moneys realized out of the sale of leasehold -and oil wells of Thomas Kervin, at suit of W. B. Roberts & Son, the sum of three hundred dollars, being for labor performed on said premises, and for improvement of same within six months last past; that said work was performed for S. M. Reid, whose business was producing oil from said property, and sinking oil wells and operating the same ; that the labor of claimant was taking care of oil wells, tanks and derricks on said premises, steaming oil, running boiler and engine, laying pipe, operating the wells and running the lease, being $50 per month for three fourths of expenses.</p> <p>Tiona, Pa., March 15, 1884.</p> <p>Patrick Kervin,</p> <p>Per T. Kervin, Att’y in fact.”</p> <p>This claim was presented before the Auditor, when it appeared that the said S. M. Reid mentioned in the notice was assignee of Thomas Kervin, under an assignment for the benefit of creditors, made several months after the levy upon this leasehold.</p> <p>The Auditor allowed $200 of this claim, and exceptions to the same were dismissed by the court, whereupon W. B. Roberts & Son took this appeal, assigning for error this action of the court.</p>

<p>Appeal from the Orphans’ Court of Blair county: Of July Term 1885, No. 19.</p> <p>Appeal of George M. Seibert and John Bradley, executors of the last will of Rev. James Bradley, deceased, from a decree of said court charging the estate of said James Bradley with collateral inheritance tax.</p> <p>The facts were as follows: James Bradley, a catholic priest at Newry, Pa., executed bis last will on December 1st, 1881, in which lie bequeathed the greater part of bis estate, consisting of bonds, stocks, etc., to certain of his collateral relatives and for religious and charitable purposes. Of this will lie appointed John Bradley and George M. Seibprt executors.</p> <p>On August 14th, 1882, the testator executed a deed to John Bradley and George M. Seibert reciting that he had his will deposited in the First National Bank of Hollida3rsburg, wherein John Bradlc)r and George M. Seibert were named as the executors, that be held securities amounting to $49,400, deposited with the Fidelity Insurance Trust and Safe Deposit Company of Philadelphia, for which he held receipt No. 20,192. That he also held thirteen bonds of Blair county, amounting to $2,900, together with other property, and in order to relieve himself of all worldly cares and anxieties, so far as possible, and in consideration of one dollar, he granted and assigned all of said securities, and other property, to them, for their own use and benefit, during bis life, they to receive to their own use the income, to be equally divided between them, and, at his death, to hold the same “ for the uses and purposes of bis will then deposited in the First National Bank of Hollidaysburg, they to apply the” same, after deducting any expenses of the trust, to the legacies therein mentioned.”</p> <p>John Bradley and Seibert took possession'of this property under this deed, which was duly acknowledged, and received the income therefrom to their own use until the death of James Bradley, which took place on April 13th, 1883.</p> <p>This will, after a citation issued, was duly admitted to probate on November 10th, 1883, and letters testamentary were issued to the executors named.</p> <p>On November 19th, 1883, the Register of Wills appointed an appraiser to value the estate so that it might be assessed for collateral inheritance. The appraiser made a return of personal property which he valued at $51,591.50; accompanied with his certificate that “ the bonds, stocks, etc., in the foregoing appraisement are claimed by the executors, not under the will of' the decedent, but under a deed made by testator, dated -- 1882, and that the said sums are not liable to a collateral inheritance tax.”</p> <p>The Register, on the assumption that the appraised property passed by the will, assessed the collateral inheritance tax as provided by law.</p> <p>From this assessment the executors appealed to the Orphans’ Court. The appeal was dismissed and a decree made ordering judgment to be entered in favor of the Commonwealth for $2,597.50. ■ The executors thereupon took this appeal assigning for error the entering of this decree.</p>

<p>Appeals from the Court of Common Pleas of Warren county: Of January Term 1884, Nos. 404 and 404-|-.</p> <p>Two appeals (1) lay Albert Bugbee; (2) by Samuel Tolies et al., both from the same decree dismissing a bill in equity filed by said Albert Bugbee, Samuel Tolies et al. against Wesley Millspaw David Beaty and Frederick Bugbee, praying that certain deeds and a lease be delivered up for cancellation.</p> <p>The bill averred that on June 10th, 1872, Frederick Bug-bee was seized in fee, inter alia, of lot No. 55 in Mead township, Warren county, containing about 250 acres of land. On April 13th, 1874, he conveyed this tract to his son, Albert Bugbee, one of the complainants, who went into possession of the same and. has since remained there.</p> <p>On October 22d, 1875, Albert Bugbee, at the request of his father, conveyed this property to Wesley Millspaw, one of the defendants, as security for the payment of money which Millspaw was about to advance for the benefit of Frederick Bugbee. The consideration, named in this deed was §2900, but in reality - there was no consideration and there was an express agreement that Millspaw would sign a written agreement to reconvey the property to Albert Bug-bee whenever the sum actually advanced should be repaid. With this understanding Albert Bugbee entrusted the deed to his father with express instructions not to deliver the same to Millspaw without receiving the said contract of reconvejmnce in return. Frederick Bugbee took the deed to the Recorder’s office and had it recorded without the knowledge or consent of said Albert Bugbee and without securing the contract for reconveyance. The said Millspaw never paid any consideration for the deed, and the whole proceeding was a corrupt and collusive agreement between Frederick Bugbee and Millspaw without the knowledge of said Albert Bug-bee, to defraud the creditors of Frederick and Albert Bugbee and to cheat said Albert Bugbee out of his land.</p> <p>On September 29th, 1876, Frederick Bugbee leased to Samuel Tolies, inter alia, this same tract of land for a period of twenty years for the purposes of mining for petroleum, reserving a royalty. Albert Bugbee subsequently ratified and confirmed the act of Frederick Bugbee in executing this lease. By sundry conveyances from Tolies the said leasehold became, vested in himself and, with the exception of Albert Bugbee, the other complainants, who were associated under the name of “ The Lake Erie Oil Company.”</p> <p>On May 4th, 1878, Millspaw conveyed to David Beaty part of said tract and executed an oil lease tp him for the balance. David Beaty had full notice of the title of Albert Bugbee and that the deed from said Albert Bugbee to Mills-paw was intended as security for money intended to be advanced. David Beaty entered upon a portion of said lands and drilled a well for oil.</p> <p>The bill prayed that the deed from Albert Bugbee to Mills-paw be declared to be a mortgage and that same' be delivered up to be cancelled, because fraudulently obtained, also that the conveyance and lease from Millspaw -.to Beaty be delivered up for cancellation.</p> <p>Answers were filed by Millspaw and Beaty: Millspaw admitting the conveyance to him and from him to Beaty, but denying the allegations of fraud, and claimed that the deed, to him was an absolute one. Beaty denied all knowledge of the matter and claimed as a bona fide purchaser for value.</p> <p>The cause was referred to an examiner, and subsequently to a Master (C. Heydrick Esq.], who reported on the disputed facts, inter alia, as follows:</p> <p>In or about the month of October, 1875, said Frederick Bugbee and Albert Bugbee were indebted to Messrs. Selew' and Popple, of Dunkirk, N. Y., and being so indebted, the said Wesley Millspaw proposed to the said Frederick Bug-bee, as a means of hindering and delaying the said Selew and Popple in the collection of their debt, that he should procure the said Albert Bugbee to convey the said tract No. 55 to him, the said Wesley Millspaw, and that he would give to the said Albert a bond, conditioned to reconvey the said tract when the said debt should be got out of the way. In pursuance of the said proposition, the said Frederick called upon the said Albert, and told him that the said Millspaw was about to lend him some money to be used in rebuilding the mill on said tract 55, then recently burned, and wanted him to get a deed of the said tract 55 as security for such loan, and would give a bond in return to reconvey the laud. Thereupon, to wit, on or about the 22d day of October, 1875, the said Albert executed and delivered to the said Frederick a deed conveying the said tract 55 to said Millspaw in fee simple; the deed bearing date the day and year aforesaid, was, by the said Frederick Bugbee, delivered to the recorder of deeds of said Warren county, and was duly recorded on the 28th day of October, 1875. At the time of the delivery of the said deed to the said Frederick by the said Albert, the said Albert said : “Before you deliver this deed to Millspaw get that bond that he agreed to give.” No, bond was ever given by said Millspaw to said Albert, and there is no evidence that said Millspaw loaned any money to either the said Frederick or the said Albert on the credit of the said deed. The said Albert was ignorant of the fraudulént intent of the said .Frederick Bugbee and Wesley Millspaw in respect to said deed.</p> <p>After Tolies and his associates in the Lake Erie Oil Company went into possession of this land under their lease from Frederick Bugbee and began drilling for oil, Millspaw asserted title to the land and notified the company that Bugbee’s lease gave them nc^ rights, and subsequently he, Millspaw., on March 15th, 1878, executed to them an oil lease for five acres of this land. The Master also found as a fact that the Lake Erie Oil Company was ignorant of the fraud committed in procuring the deed from Albert Bugbee, when this lease was made. That the deed from Millspaw to Beaty was for a good consideration, and the latter had no knowledge of the fraud practiced upon Albert Bugbee; that before the said David Beaty purchased and leased the said land he had notice from the said Lake Erie Oil Company of the said lease from the said Frederick Bugbee to the said Samuel Tolies, and that the said company claimed the said tract 55 imder the said lease, and in a conversation respecting said lease on the premises before Beaty’s purchase, the said Tolies said to him: “It seems that Millspaw and Bugbee have put their heads together to swindle us out of it, but that we (the Lake Erie Oil Company) will defend our rights.” At the time of making such declaration neither the said Tolies nor any other member of the said company had any knowledge of the fraud that had been practiced upon the said Albert Bug-bee, or of any fact pointing to such fraud, nor is there any evidence that they had any such knowledge until about the time of filing their bill. That until near the time of filing the present bill Albert Bugbee remained in ignorance of the fraud that had been committed in the procurement of the said deed, and believed, that he had lost the land in consequence of indebtedness of his father to’ Millspaw, and so frequently declared. He knew that his father had delivered the deed without exacting the stipulated bond, and took no steps for his protection, but acquiesced in the delivery. At the time of said purchase by Beaty the said Millspaw was in apparent possession of the tract 55, subject to the rights of IheLake Erie Oil. Company under the five acre lease, and was erecting a boarding house thereon. Said Albert Bugbee was working on said boarding house under the direction of his father.</p> <p>Upon this state of facts the Master reported that the bill should be dismissed as to all the plaintiffs, except Albert Bug-bee and that as to him there should be a decree for reconveyance of that part of the property leased to Beaty, subject however to the lease to Beaty, who was a bona fide purchaser as to the other part, as there was nothing to put him upon any such inquiry as would have led to the discovery of the fraud in the conveyance to Millspaw.</p> <p>The court, Taylor, P. J., confirmed all the Master’s findings of fact except that Albert Bugbee was ignorant of the fraud committed in the procurement of the deed to Mills-paw, and accordingly dismissed the bill as to all the complainants. *</p> <p>Whereupon complainants took this appeal assigning for error, inter alia, this action of the court.</p>

<p>1. All that is required in order to make out testamentary capacity is that the alleged testator has mind and memory sufficiently sound to dispose. of his estate with judgment and discretion. lie must have a knowledge of the act he is engaged in, the property he is possessed of, and the disposition he intends to make of it.</p> <p>2. A witness to the testamentary capacity of a testator is competent to state his opinion if he gives the tacts upon which it is founded.</p> <p>8. A witness (not an expert) who testifies to an opinion adverse to the capacity of a testator, must state the particular facts upon which his opinion is based. If however the facts, thus testified to, do not tendió show want of testamentary capacity, the court may refuse to hear the opinion of such witness.</p> <p>4. It is error for a court to charge the jury that, if they believe the testimony of one witness, who liad peculiar facilities for knowing the mental capacity of the testator, they must find for the will, when there are other material facts and circumstances and opinions of other witnesses in evidencie on the question of testator’s capacity. The evidence should be submitted to (lie jury as a connected whole.</p>

7. Appeal of Clarence A. Worrall from a decree of said court dismissing his exceptions to the report of .a Master reporting that tlie bill in equity filed in tbe case should be dismissed, etc. This was a bill in equity filed by Clarence A. Worrall against Mary A. Bailey to set aside a certain deed executed by the complainant to the defendant.

<p>1. One who guarantees the fulfillment of a contract, which had not yet been executed or accepted by the parlies intending to give credit on the guarantee, is entitled to notice of the acceptance thereof; and, in the absence of such notice, he is not liable on his guaranty.</p> <p>2. Such notice will not be presumed from the fact that the guarantor must have been aware that goods were furnished after the guaranty had been signed. Especially is this the ease, when there had been previous business relations between the parties to the contract to which the guaranty was given, and there was no visible notice of a change in their relations.</p>

<p>Error to the Court of Common Pleas of Dauphin county: Of May Term 1885, No. 3.</p> <p>Ejectment by Fred. M. Ott against J. Monroe Kreiter to recover a small plot of ground in the city of Harrisburg, described in the writ as follows: Beginning at a point on the corner of Herr street and the old Millerstown turnpike or Second street, one hundred and fifty feet in a westernly direction from Smith alley, thence along the line of old Second street and the line of land owned by J. M. Kreiter in a southeasternly direction sixty feet to a point on lot late of Malvina Ingram, thence along said lot in a southernly direction twenty-three feet to the centre of old Second street, thence in a northwest ernly direction seventy-two feet to Herr street, thence along Ilerr street eight feet to-the place of beginning. Being the land that accrued to A. C. Smith as the owner of lot on the corner of Herr street and old Second street by reason of the vacating of old Second street.</p> <p>On the trial it was agreed that a valid title to the property in dispute had been in A. C. Smith, through whom both parties claimed.</p> <p>Plaintiff showed the following title : A deed from A. C. Smith to Lyman D. Gilbert, dated October 7th, 1882, for the land as above described, also a deed from Gilbert to himself for the same land, dated May 25th, 1883.</p> <p>Plaintiff then gave in evidence the Act of April 9th, 1869, (P. L. 771,) which was the Act incorporating the city of Harrisburg. By the second section of this Act, commissioners were appointed, whose duty, inter alia, was to lay out new streets and vacate old streets in the city of Harrisburg, in order to make the streets more regular, and to report the proposed changes.</p> <p>Plaintiff further offered in evidence the Act of June 2d, 1871, (P. L., 1556,) being a supplement to the above Act, whereby certain streets designated by the said commissioners were declared vacated. Among these steeets was Millerstown turnpike or old Second street.</p> <p>The abandonment of this street and the establishment of Front street, which ran diagonally across the street thus declared to be vacated, left a certain wedge-shaped piece of ground in front of property conveyed by Smith to J. M. Kreiter, the defendant, and this is the land in dispute.</p> <p>Plaintiff offered in evidence a plan, of which the diagram on p. 372 is substantially a copy.</p> <p>The piece marked “ A ” shows the land in dispute.</p> <p>The defendant, Kreiter, claimed title to this piece of land by virtue of a deed to him from A. C. Smith, dated August 12th, 1881, for a lot of ground on the eastsideof the Millerstown turnpike or old Second street, by which deed he took title to the centre of the vacated turnpike or street. This deed purported to convey the “ whole ” of Smith’s interest in this land.</p> <p>Defendant then testified that, before the purchase from Smith, he went upon the ground, and that Smith then pointed out the boundaries of the land he proposed to sell and they included the land in dispute. After this conversation the deed was drawn by Kreiter following the lines of the old deeds. Smith testefied thatthat he was willing to “ convey him the lot there just as it was.” He further testified that when Bigler, who was the agent for Gilbert, came to see him about purchasing the ground in dispute, he told him he had nothing to sell and that subsequently he told him he would give him (Bigley) such title as he had.</p> <p> </p> <p>Defendant then offered in evidence the record of an amicable action in ejectment between Sarah Bigler and Kreiter for the portion of the ground in dispute directly in front of Sarah Bigler’s property which adjoined that of Kreiter, in which case Gilbert, through whom plaintiff claims, was counsel, and in the case stated it was agreed that Kreiter had a valid title to all that was vacated to the centre of old Second street.</p> <p>This offer was admitted for the purpose of showing notice to Gilbert, but not as an admission. (See report of this case, with plan, Kreiter v. Bigler, 5 Outerbridge, 94.)</p> <p>Plaintiff gave in evidence in rebuttal a deed from J. M. Wiestting, dated February 15th, 1867, “for the purpose of showing the location of one of the lines in Smith to Kreiter, the deed from Smith to Kreiter declaring that it includes all the land conveyed by Wiestling to Smith — the deed referred to in Kreiter’s deed, and we refer to it here for the purpose of getting the boundary in it, and particularly locating the line which is the line of Kreiter’s land.”</p> <p>Plaintiff requested the court to charge, inter alia, as follows :</p> <p>2. The Harrisburg and Millerstown turnpike, or old Second street, was vacated in 1871; by that vacation, A. C. Smith, the then owner of the abutting lot at corner of old Second street and Herr street, became the absolute owner of one half of the ground over which the vacated highway had extended, unencumbered by any public or other easement; could dispose thereof to any person to whom he desired, and the deed of A. C. Smith to J. M. Kreiter, dated August 12th, 1881, is to be read and construed with reference to this fact and the law arising therefrom.</p> <p>Answer. This point is not correct as a matter of fact. Part of the Millerstown turnpike only was vacated, and the title to that part is to be determined by the proper construction of the deed from A. C. Smith to Kreiter, as we have instructed you in the general charge. (First assignment of error.)</p> <p>A. The deed from A. C. Smith to J. M. Kreiter designated as the terminus of the first boundary line named ¿herein the Harrisburg and Millerstown turnpike or old Second street, stating distinctly that said line runs to said pike or street. The said pike or street is a monument, and the said first boundary line named in said deed runs only to the margin of said street, and does not extend beyond it; and all the land which had previously reverted to the said A. C. Smith by reason of the vacation of said pike or street is, by the terms of said deed to Kreiter, excluded from the grant to Kreiter, and does not pass to said Kreiter by said deed.</p> <p>Answer. This point is refused. (Second assignment of error.)</p> <p>5. The second boundary line named in said deed of Smith to Kreiter terminates at a point on lot of J. M. Wiestling; the said deed describes the' land conveyed thereby as covering all the land previously conveyed by said Wiestling to said Smith, and the point above referred to as the terminus of the second boundary line is the corner of the lot or ground previously conveyed by Wiestling to Smith, and that this is the true construction is apparent from the fact that his corner is the only point on said Wiestling’s lot from which the third line of said deed can run parallel with Herr street so as to conform to the line given in the deed of Wiestling to Smith.</p> <p>Answer. This point is really an argument, or an argumentative point. We decline to affirm it. (Third assignment of error.)</p> <p>The court charged the jury, inter alia, as follows: We come, however, to the deed itself, and the construction of the lan~ guage of the deed is for the court. The deed begins at a point on Herr street thirty feet westwardly of Smith alley; thence along Herr street one hundred and twenty feet, more or less, to the Harrisburg and Millerstown turnpike, or, as it otherwise describes it, being the old Second street; and thence along said turnpike sixty feet, more or less, to a point. This deed begins then at a point back from the street one hundred and twenty feet, more or less, and it runs until it calls for the Millerstown pike. This'description follows the description of the older deeds that were drawn before the Millerstown turnpike had been vacated, and it is admitted that the line one hundred and twenty feet would have run to the outside line of the Millerstown turnpike, and then, by the operation of law, we say it would have gone to the middle of the turnpike; but when this deed was drawn six feet of that, at that point, had been declared by the legislature to be vacant. Whether it was vacant upon the ground or not we do not know, as it has not been shown -in this case; but the plaintiff says the legislature had then vacated it, and that this call for the Millerstown turnpike would not carry the line to the centre of the turnpike, because the six feet having been vacated, and the turnpike having been therefore removed so much further away, the one hundred and twenty feet would not reach to its outer edge, and hence the line could not be extended by operation of law to its centre. The turnpike, however, was still there on the ground; the greater part of it was a public street; it may have been called by another name — that has not been shown — it may, in common parlance, still be called the Millers-town turnpike. It has not been shown or stated that, before the grant, the Millerstown turnpike was not still there, although the outside line at that point had been changed six feet — in legal contemplation at least. We say that makes no difference. This calls to go to the Millerstown turnpike, and it is one hundred and twenty feet, more or less. It therefore reached the Millerstown turnpike as it was then upon the ground, and when it did, it ran to the middle of it.</p> <p>When we strike the middle of that turnpike, then the next difficulty is, thence along said street, or turnpike, sixty feet, more or less, to a point on a lot of J. M. Wiestling. We say, then, that the line ran down the middle of the turnpike. It is argued by the plaintiff that this could not be, because at that point it calls to strike the line o-f J. M. Wiestling, and it goes on to describe the line of J. M. Wiestling as being parallel with Herr street, whereas it is shown by the draft that from the middle of the turnpike, to the-outside line of the turnpike, the line does not run parallel with Herr street. That is an argument, it is not a legal proposition. It is an argument, and we say it is not a conclusive argument. It is advanced here, and it is put in a point as though it were a legal proposition. The conveyance made by Mr. Wiestling to Smith, which is referred to here, does call for a point at the outer edge of the Millerstown turnpike; but the line of Mr. Wiestiing’s property, just the same as the line of all the others, would run to the middle of the street; and it is in consequence of a decision of the Supreme Court, establishing the direction in which the line runs from the outer edge of the street to the middle of it, that that line does not run parallel with Herr street. Nevertheless, coming down the middle of the turnpike the line does strike Mr. Wiestiing’s line, and then it runs parallel to Herr street; or, it runs to the outer line of the original turnpike in the direction declared by the Supreme Court in another case, and there it strikes a line established by Mr. Wiestling in the conveyance by him previously to A. C. Smith, and from that point it runs parallel with Herr street; and the fact that it does run parallel to Herr street from the middle to the outside of the street is of no consequence._ It is admitted on all sides that the deeds do not contain the half of the street, neither in their length, nor in their direction. They do not purport to contain the half of the street; it did not purport to be included within the lines of the survey, or of the description, or of a survey that would be made from the description; but the lines as made in the description are to be extended by operation of law; and, therefore, that argument cannot control. The line, then, in legal contemplation passes down the middle of the turnpike until it comes to Mr. Wiestiing’s line, and it then runs by the direction established by the decision of the Supreme Court until it strikes the outer edge of the turnpike, and then it follows the line established by Mr. Wiestling when he changed, or straightened, the line so extended around ; and the result of it all is that we instruct you that the description of this deed of the 12th day of August, 1881, from Mr. Smith and wife to Kreiter, did convey this part of this street, and that therefore Mr. Smith had nothing to convey when he made his deed to Gilbert, and therefore Mr. Gilbert had nothing to convey when he made his deed to Ott, and therefore the plaintiff has no case.</p> <p>Verdict for defendant and judgment thereon. Plaintiff then took this writ, assigning for error the refusal of the points and the charge as above quoted.</p>

<p>1. A mutual assessment association, wliicli was engaged in issuing wagering policies, was dissolved by proceedings instituted by the state, and a Receiver was appointed, who tiled a bill in equity against the officers and directors of tlie same to recover moneys, which, as he alleged, they had fraudulently appropriated to themselves. The Master so found and a decree was entered against the directors jointly for the sum so appropriated.</p> <p>Held: (1) that the joint decree was properly made.</p> <p>(2.) That the quesiion of the distribution of this sum was not before the court and objection could not be made to the decree on the ground that it might (¡mire to the benefit of members, who were interested in an unlawful enterprise.</p>

<p>Appeal from a decree of the Court of Common Pleas of Adams county: In Equity: Of May Term 1885, No. 10.</p> <p>Appeal by Amos Shafer, executor of the will of Samuel Shafer, deceased, and George Otts and John Otts, beneficiaries under said will, from a decree of said court ordering that $1,400 be paid to Jesse Shafer, Jr., out of land described in his bill for specific performance.</p> <p>Bill in equity wherein . Jesse Shafer, Jr., and Elizabeth Shafer were complainants, and Amos Shafer et al., executor of and beneficiaries under the will of Samuel Shafer, deceased, were defendants, to compel specific performance of an alleged oral contract, made by said Samuel Shafer in his lifetime to convey a farm in Adams county to said Jesse Shafer, Jr.</p> <p>The bill averred that complainants are the nephew and sister of said Samuel Shafer, and that the latter had promised his mother on her death-bed to provide for his sister Elizabeth, one of complainants, who was a single woman about sixty years of age and without means of support; that in order to carry out this promise, said Samuel Shafer purchased two lots in Littlestown, on one of which he erected a house at a cost of $1,400.</p> <p>That Samuel Shafer then agreed with Jesse Shafer, Jr., that he should have this property upon condition that he pay the interest upon the $1,400, and support the said Elizabeth Shafer and at her death give her a respectable burial. That in pursuance of said agreement Elizabeth Shafer went to live with Jesse Shafer, Jr., on said premises in the year 1869 and has since been maintained by him. That said Jesse Shafer, Jr., paid the interest on said $1,400 for the years 1869 to 1874 inclusive, that Samuel Shafer did not demand the interest for the year 1875, and in 1876 he sold the Littlestown property and purchased a farm in Franklin township, Adams county, and the said Jesse Shafer, Jr., went into possession of this farm, taking his aunt, Elizabeth, with him, with the understanding and agreement that the farm should be his for life, and at his death should go to his children' on condition that he would support the said Elizabeth.</p> <p>The said Samuel Shafer died on October 1st, 1877, in Maryland, and letters of administration on his estate were granted to Jonas C. Spangler, who applied to the Orphans’ Court of Adams county for an order to sell the property in question for the payment of debts. The bill further averred that the said Jesse Shafer has heretofore performed his part of the agreement and is able and willing to continue the same, and prayed for an injunction to restrain Spangler from selling the property and for specific performance of the contract between Samuel Shafer and Jesse Shafer, Jr.</p> <p>On January 21st, 1881, Elizabeth Shafer died, and Jesse Shafer, Jr., then filed an amendment to his bill setting forth this fact and stating that he had fully performed his part of the contract in regard to the maintenance and burial of said Elizabeth Shafer.</p> <p>The defendants filed an answer denying any such contract between Samuel Shafer and complainant, and they filed a copy of the will of said Samuel Shafer, made while he still owned the property in Littlestown, and in this will the said property was devised to Jesse Shafer, Jr., for life, provided he support Elizabeth Shafer, his aunt, and at her death give her a decent burial.</p> <p>The case was referred to an Examiner and Master, William McSherry, Jr., Esq., who found that Elizabeth Shafer had been well cared for by Jesse Shafer, Jr., and received a respectable burial, but that there was no sufficient proof of any contract between Samuel Shafer, Jr., that the hitter was to have the farm for doing this. The Master therefore recommended a decree dismissing the bill.</p> <p>Complainant took a number of exceptions to the Master’s findings of fact. The court, McClean, P. J., on the argument of these exceptions, was of opinion that the contract was not sufficiently proved, but retained the bill for the purpose of allowing J esse Shafer, Jr., compensation out of the land, and subsequently entered a decree that this farm be charged with the payment of $1,400, the amount of compensation due complainant under the pleadings and evidence.</p> <p>Defendants then took this writ, assigning for error this action of the court.</p>

<p>Error to the Court of Common Pleas of Fulton county : Of May Term 1885, No. 6.</p> <p>This was a feigned issue to test the validity of the will of Francis Scott, deceased, wherein Henry W. Scott, named as executor in the alleged will, was plaintiff, and Mary E. Scott, guardian of William H. Scott and Nelly Mary Scott, minor grandchildren and heirs of Francis Scott, deceased, was defendant.</p> <p>The issue was tried before McClban, P. J., who submitted the case to the jury on Saturday, April 20th, 1884, and instructed them that, in case they agreed upon a verdict when the court was not in session, they should seal the same and separate.</p> <p>On the following morning the jury came into court and the foreman delivered the sealed verdict to the prothonotary, which read as follows: “Verdict for defendant, Mrs. Mary E. Scott, defendant,” followed by the signatures of the jurors. When this paper was read, counsel for plaintiff immediately demanded a poll of the jury, whereupon the prothonotary proceeded to poll the jury, recording the vote of each upon the written verdict which had been handed him. The result was that eleven jurors declared for the defendant and one declared “that he was in favor of the will” — that is, for the plaintiff.</p> <p>The court ordered the prothonotary to enter the'verdict as it appeared on the paper submitted by the foreman. The following is the record: “April 21st, 1884. Verdict for defendant. At the quest of Att’y Smith, jury polled, and eleven jurors say they find for the deft., and one juror says that he was in favor of the will.”</p> <p>Plaintiff filed a motion in arrest of judgment, which the court overruled, and then entered judgment on the verdict.</p> <p>Plaintiff thereupon took this writ, assigning for error (1) the action of the court in overruling the motion in arrest of judgment, and (2) the entering of judgment on the verdict.</p>

16. This was, in the court below, a suggestion for a writ of quo warranto filed, by Lewis C. Cassidy, Attorney General of tbe Commonwealth, against The Lykeus Water Company, incorporated July 20th, 1883, to show by what warrant it claims to be and exercise the rights of a corporation.

20. This was an appeal by John Lininger and Samuel B. Lininger, executors of and legatees under the will of Samuel Lininger, deceased, dismissing their exceptions to and confirming the report of the Auditor appointed to distribute the balance in their hand as executors. The facts of the case were substantially as follows: Samuel Lininger died April 11th, 1880, leaving to survive him a widow, Margaret Lininger, and four children, viz., John, Samuel B., Susan and Lydia.

22. This was a petition to the said court by Eliza A. Maulfair and Christian S. Maulfair, her husband, praying that a citation be awarded against David M. Rank, guardian of said Eliza A. Maulfair, to file his account.

<p>1. An executor who retains goods of Ms testator is liable for .their value. The appraised value of the goods as shown in an inventory regularly made and filed is prima facie correct, but may be rebutted by competent evidence.</p> <p>2. A testator died possessed of an interest in a banking copartnership, represented by certain “shares of stock” therein. The partnership articles provided that a majority of the partners or “ stockholders,” as they were termed, might, upon the death of any of their number, purchase his “ stock ” or partnership interest at a valuation to be ascertained by the officers of the bank upon notice to the legal representatives of the deceased. The ‘.‘stock” was appraised at its par value, $100 per share. Some years after the decedent’s death the valuation was regularly made and the value ascertained to be $83, at which price the bank purchased 83 shares. The remaining shares the executor transferred to himself at the same price and charged himself accordingly in his account. Afterwards the executor received in dividends from this stock $64 per share, and the stock was worth at the time of filing the account $126 per share. It was claimed before the Auditor that the accountant should be charged with this value of the stock plus dividends received. The exception filed to the account however was that the accountant “ should be charged with the full value of the Juniata Valley Bank stock as it was appraised ”; the exception to the Auditor’s report and the assignment of error were similarly worded:</p> <p>Held, (1) that the purchase by the accountant of his testator’s interest was voidable at the instance of the parties interested, not on the ground of actual fraud; but from public policy.</p> <p>(2) That the demand of the exceptants being only that the accountant should be charged with the appraised value of the stock they had thereby elected to treat him as the owner and therefore entitled to retain the dividends he received.</p> <p>(3) And that consequently the accountant should be charged only with the appraised value of the stock, with interest from the time it was taken by him.</p> <p>S. AVhen exceptions are taken before an Auditor they should specify definitely what is claimed not only for the information of the Auditor, but in order that the accountant may know what claims are made against him and what he has to meet.</p> <p>4. A testator died in September, 1874, owning stock in The Pennsylvania and The Philadelphia & Reading Railroad companies which at that time and for some years thereafter paid dividends, and might have been sold at par, their appraised value. The executor did not sell until June, 1878 (when both stocks were greatly depreciated), selling at the same time some Pennsylvania R. R. stock which he owned individually. No necessity appeared to sell the stock to enable the accountant to pay debts of the estate:</p> <p>Held, that the accountant had exercised the ordinary judgment of a prudent man in making these sales, had not been guilty of supine negligence and could not therefore be surcharged with the loss arising from his error of judgment.</p> <p>5. A testator devised Ms house to his widow for life and bequeathed her an annuity which he charged on land devised to Ms son, the executor. The widow signified her intention to elect to take against the will, and all parties in interest united in an agreement by which the executor was to pay the widow a certain sum in consideration of which she released all claim to her dower or thirds in the estate. The agreement made no mention of the annuity. The executor having paid the widow the amount thus agreed upon and asked credit for the same in Ms account, a residuary legatee claimed that Hie accountant should be surcharged with the annuity charged upon the land devised to Mm, on the ground that, as the widow declined to accept the provisions of the will including the annuity, the latter constituted a trust for the benefit of the residuary legatees :</p> <p>Held, that the money was paid by the agreement of all parties for the common benefit and was properly paid out of the residue ; and that as the widow did not take either at law or under the will the doctrine of Sandoe’s Appeal, 15 P. F. S., 314, did not apply.</p> <p>6. In the settlement of a complicated estate, extending through some nine years and involving great responsibility and trouble for the accountant, whose account showed debits amounting to $127,387.07 and credits amounting to $74,821.16, $4,000 was allowed as compensation to the accountant.</p> <p>7. Where an accountant is charged with interest on moneys received by him he is entitled to interest upon the sums paid and especially to be allowed credit for interest upon claims of creditors when actually paid.</p> <p>8. Where personal property is taken by the parties interested in an estate at the appraised valuation, the executor is entitled to a credit for the amount in his account and is not liable for interest thereon, for it never was money in his hands which could bear interest.</p> <p>9. The compensation of executors and trustees is due them at the time when the services are performed.</p> <p>10. A testator died September 21st, 1874, and letters testamentary were issued to Ms executor September 24th, 1874. A first account was filed June 21st, 1883, and was referred to au Auditor who re-stated the account up to January 1st, 1876, deducted commissions then earned and charged interest on the remainder. After 1876, the commissions were allowed in each year and interest was allowed thereon, being also charged on each item of money received by the accountant from one month after its receipt.</p> <p>Held, that the Auditor correctly stated the account.</p> <p>11. Callaghan v. Hall, 1 S. & E., 241, followed.</p>

<p>Error to the Court of Common Pleas of Greene county: Of October Term 1884, No. 27.</p> <p>Assumpsit by Charles Hughes, guardian of Elizabeth Bell, against the First National Bank of Waynesburg, to recover the sum of $2,40(1 with interest from January 1st, 1876. Pleas, non assumpsit, non assumpsit infra sex annos, payment with leave, etc. »</p> <p>On the trial, before Willson, P. J.,.the following facts appeared :</p> <p>On September 27th, 1865, John Bell, the father of Elizabeth Bell, placed certain United States 7-30 government bonds to the amount of $11,400 in the First National Bank of Waynesburg and received a certificate to that effect, signed by A. L. Myers “for the cashier.” Some time afterwards these bonds, were exchanged by J. C. Flenniken, cashier of said bank, for 5-20 bonds, to an equal amount, but the original certificate was- not lifted, nor was any other certificate given. John Bell died intestate in October," 1866, leaving his wife and five children surviving him. Charles Hughes, the plaintiff in this case, was appointed guardian of Elizabeth, the oldest child, and Samuel Luse and Jesse K. Bailey were appointed guardians of the other four children; and letters of administration upon the estate were issued to his widow and James Bell. In September, 1871, the administrators settled their final account, showing a balance in their hands of about $30,000, which consisted in part of these bonds. In pursuance of an agreement between them, the administrators and guardians met at the bank, on October 2d, 1871, and the certificate of September 27th, 1865, was then surrendered, and other certificates were issued to the guardians — the one to Charles Hughes, guardian of Elizabeth, being in the following form:—</p> <p>“ First National Bank or Waynesburg.</p> <p>Capital Stock $100,000.</p> <p>R. W. Downey, J. C. Flenniken, B. F. Flenniken, President. Cashier. Assistant Cashier.</p> <p>“First National Bank or Waynesburg, )</p> <p>October 2d, 1871. j</p> <p>“ Charles Hughes, Guardian of Elizabeth Bell, has left for safe keeping $2,400 U. S. 5-20 bonds.</p> <p>“B. F. Flenniken.”</p> <p>A similar paper was given to the guardians of the other children for 5-20 bonds to the amount of $9,000.</p> <p>During, the years from 1869 to 1873, inclusive, various loans were made by the bank with Ira B. McVav and Company, their correspondents in Pittsburgh, to secure which government bonds were deposited and when the loans were called the bank was unable to pay and the bonds, in amount sufficient to cover the call, were sold. The bonds thus given as collateral belonged to plaintiff and were given as collateral and sold without the knowledge or authority of the guardian.</p> <p>■On January 14th, 1874, the bank went into voluntary liquidation and shortly afterward the plaintiff called and demanded the bonds. He was informed by B. F. Flenniken, the assistant cashier, that the bonds were not in the bank, but had been sent to Pittsburgh for safe keeping. He said that they were “ all right ” and that he would have them brought back in a few days. ■■ J. C. Flenniken told the same story and made repeated promises to get the bonds from Pittsburgh and return them.</p> <p>The interest was regularly paid on these bonds until January 1st, 1876, which was some two years after the sale of the bonds. In April of that year the plaintiff first learned that the bonds had been sold by McVay & Co., and at the trial of a criminal prosecution, brought by Hughes and the other guardians, against J. C. Flenniken for embezzlement, it was discovered that they had been appropriated to the use of the bank. Plaintiff, subsequently, on February 18th, 1882, brought this suit against the bank.</p> <p>The défendant requested the court to charge “that the plaintiff’s claim being barred by the Statute of Limitation he cannot recover.” Answer. “Affirmed.” Exception. (First assignment of error.)</p> <p>Plaintiff requested the court to charge, inter alia, as follows</p> <p>“3. If the jury believe from the evidence that the bonds in suit were left with the defendant bank as a special.deposit, and were afterwards hypothecated by the cashier of said bank for a debt of the bank and sold by the pledgees and the proceeds applied to the payment of the debt of defendant bank, without the knowledge, authority or consent of the plaintiff, the said hypothecation and sale was a fraud on the plaintiff, and the Statute of Limitations does not begin to run against the plaintiff’s claim until the discovery by him of such appropriation.” Answer. “Refused.” Exception. (Second assignment of error.)</p> <p>"The court charged the jury as follows: — “ This is an action brought by Charles Hughes, guardian of Elizabeth Bell, against the First National Bank of Waynesburg for the purpose of recovering the value of certain United States bonds deposited with the defendant bank as a special deposit in the year 1871. Under the evidence in the case as given on the part of the plaintiff, we are of the opinion that it is our duty to instruct you as we have been requested to do by the counsel for the defendant bank, and that 'is, that the plaintiff’s claim being barred by the Statute of Limitation, the plaintiff is not entitled to recover and your verdict will be for the defendant.”</p> <p>, Verdict for the defendant and judgment thereon. Plaintiff then took this writ, assigning for error the answers, to the points as above and the charge of the court.</p>

<p>Appeal from the Court of Common Pleas of Westmoreland county: Of October and November Term 1885, Nos. 24, 25 and 26.</p> <p>This was an appeal by J. W. Moore from an order of said court allowing attorney’s commissions on certain judgment notes entered up against him by Rachel Kilgore et al,, under the following circumstances: On November 26th, 1883, Moore borrowed from Rachel Kilgore the sum of $2,000, and gave her his note tlierefor in the following form :</p> <p>“$2,000.00 G rbensburgh, Nov. 26th, 1883.</p> <p>“ One year after d_ate I promise to pay to Rachel Kilgore, or order, Two thousand Dollars, value received with interest; and do hereby authorize any attorney of this county, or any other county in this state, or elsewhere, to enter and confess judgment for the above sum, with costs of suit and attorney’s commission of five per cent, for collection, release of errors, and without stay of execution; and do waive the right and benefit of any law of this or any other state, exempting property, real or personal, from sale; and if levy is made on land, do also waive the right and inquisition, and consent to the condemnation thereof, with full liberty to sell the same on Fi. Fa., with release of errors therein.</p> <p>“Due- J. W. Moore:”</p> <p>On January 19th, 1884, Rachel Kilgore caused this note to be entered in the prothonotaryls office.</p> <p>On November 26tb, 1884, the day the note fell due, Moore tendered to Rachel Kilgore's counsel the amount of the debt, interest and costs, less .attorney’s -commission. This was refused and on the same day permission was given Moore to pay this sum into court “ without prejudice as to the question of attorney’s commission.”</p> <p>On December 8th, 1884, the court, Hunter, P. J., on motion of plaintiff’s attorney, taxed an attorney’s commission of two and one half per cent, upon this claim as well as upon two other claims in favor of Jane and Violet Kilgore respectively, upon notes of same form and date as above, filing the following opinion :</p> <p>“The debt, interest and costs of these three judgments, amounting to $5,314.05, has been paid into court, and the question is now as to attorney’s commission. The notes provide for five per cent, attorney’s commission and judgment has been so confessed. The judgments have been entered by an attorney who has taken on himself the professional responsibility of seeing that this was promptly and correctly done; and now the additional responsibility of receiving and paying over the money, and securing himself in the future from any question of having paid over the money. Is it reasonably required of him to do this for nothing? I think not; and if .not, must his client pay what the defendant himself contracted to pay, and for which they now severally have judgment, if attorney’s commission be refused. There has been no payment of the money to them or tender of money personally to them. I am unab.le to see any difference between this case and Daly v. Maitland, 7 Norris, 384, and the plaintiffs should be allowed enough to pay their counsel.</p> <p>“As there are three separate judgments, the trouble to counsel will be proportionately greater than if there was but one judgment. In other words, three parties, instead of one, and the respective amounts payable to each consequently Smaller, I think 20 per cent, would be reasonably fair.</p> <p>“And now, December 8th, 1884, leave is given plaintiffs’ attorney to take out of court the money paid in, to wit, the sum of $5,314.05; and on payment of an attorney’s commission of $125.00, being 20 per cent, on the aggregate judgments, it is ordered that the judgments be marked satisfied.”</p> <p>Moore then took this appeal, assigning for error, inter alia, the allowance of the attorney’s commissions on the three claims and the above order of the court. Counsel agreed in writing that the three cases be argued as one and that fhe judgment entered in one should govern and decide all.</p>

<p>1. The trae measure of damages for the taking of land for the construction of a railroad is the difference between the market value of the property unaffected by the obstruction, and its market value afterwards.</p> <p>2. In arriving at the difference, however, the jury are entitled to consider such advantages alone as are special to this particular property and only such disadvantages as are actual.</p> <p>3. Damages that may be sustained from the negligent or unskilful management of the road cannot be taken into consideration. Hence, it was to allow a witness to state his experience as to his own property from which the jury might anticipate the extent of the prospective injuries to the plaintiff.</p> <p>4. The railroad company cannot be charged an excessive rate for timber on the land taken, on the ground that there was not more than was reasonably required for fencing and fire-wood.</p> <p>5. The cost of fencing cannot be recovered as a distinct item of damages, but the question of how much the burden of fencing will detract from the value of the land may be considered by the jury.</p>

<p>Error to the Court of Common Pleas of Forest county: Of October and November Term 1885, No. 29.</p> <p>Ejectment, by the Salmon Creek Lumber and Mining Company against William A. Dusenbury, to recover possession of a strip of land, situate partly in Kingsley and partly in Howe township, described in the writ as follows: “Bounded on the northeast by Warrant No. 5104; on the northwest by Warrants Nos. 5266, 5267, 5268 and 5269; and on the southwest by a line running southeast from the northwest corner of Warrant No. 5128; and on the southeast by other lands of the plaintiff, and being parts of Warrants Nos. 5105, 5108, 5109 and 5128, containing nine hundred and fifty acres, more or less.”</p> <p>On the trial,before Brown, P. J., plaintiff gave in evidence warrants to Jonathan Mifflin for tracts of land numbered 5105, 5108 and 5109, dated February 4th, 1794, each for one thousand acres; also drafts of surveys of the same made by Ennion Williams, deputy surveyor. On these drafts, immediately outside of the northwestern boundary line, was written the words “Geo. Meade.” The return of the surveyor general and also the patents to Mifflin, both of which were given in evidence, called for the Meade lands as the northwestern boundary in these words, “thence by land of G. Meade.” Plaintiff-also offered in evidence Warrant No. 5128 to Dr. Jos. Red-man, dated February 5th, 1794, also draft of the same by the deputy surveyor and the return of the surveyor general and patents. Neither the survey nor the patent for this tract called for the Meade tract on the northwest; it was described as bounded by other “ surveyed land.”</p> <p>Plaintiff then deduced title from these patentees to himself and claimed that the northwestern boundary of these tracts was the Meade land and that the land in dispute was included in these tracts.</p> <p>Defendant claimed title by virtue of a patent for this strip of land, granted to him September 29th, 1882, and claimed that the warrants to Mifflin and Redman did not extend to the Meade line.</p> <p>Plaintiff claimed that the northwestern boundary line of its land was as indicated by the solid line in the following diagram, whicli was the known southeastern boundary line of certain lands warranted to George Meade before the warrant to Red-man and Mifflin and surveyed on the same day as the Mifflin, tract.</p> <p> </p> <p>The defendant claimed that the northwestern boundary of the Mifflin and Redman tracts was as indicated by the dotted line. The strip between these lines is the premises in dispute.</p> <p>It was agreed that the line from the south corner of 6129, northeasterly to the east corner of 5102, is an original line, as proved by Mr. Whittekin, of the Mifflin warrants; and that the line running northwesterly from the eastern corner of 5102 to the beech corner of 5282 is an original line also, as testified to by Mr. Whittekin, of the Mifflin warrants; and further, that there never was a line found running from the beech corner of 5282 southwest parallel with the line first mentioned.</p> <p>From the fact that the survey of the Meade land was made at the same time as that of the Mifflin land and by the same survej'or and from the further fact that the words “ G. Meade ” were written along the northwestern boundary line of the Mifflin tracts, plaintiff claimed that the line surveyed for George Meade was the boundary of 6105, 5108, 5109 and 5128.</p> <p>Defendant, on the other hand, claimed that the surveyor in 1794 never intended to adopt and never did adopt the Meade land as the northwestern boundary, and, in order to sustain this position, showed that if the Mifflin warrants extended to the Meade line they would contain a larger quantity of land than was called for by the return of the surveys, that the only surveyed lines of the Mifflin tracts were the southeastern and northeastern lines, that the balance was platted work and that if a line were run southwest from the northeastern corner of tract 5101, being one of the tracts warranted to Mifflin, which said corner was marked by a beech tree, it would leave a strip of land between the Meade and Mifflin tracts, for which defendant had made application to the Board of Property as vacant and for which the state have given him a patent.</p> <p>. Plaintiff requested the court to charge as follows:</p> <p>“ 1. The returns of the surveys made in pursuance of warrants numbered respectively 5105, 5108, and 5109, and the patents granted for the several tracts so surveyed, calling for land of George Meade on the northwest, the said tract must, in the absence of any other line marked on the ground for its northwestern boundary, be carried to the line of the said land of George Meade.”</p> <p>Answer. “ This point assumes that the surveys made in pursuance of the warrants named call for the Meade lands. We aro not prepared to say from the surveys that such is the correct interpretation of the surveys, but say, as we have already said, in the general charge, that if the surveyor adopted the line of the Meade lands as the boundary of the warrants named, then the northwestern line of said warrants does extend to the line of the Meade land.”</p> <p>“ 2. The return of survey made in pursuance of warrant numbered 5128, and the patent granted for the tract so surveyed, calling for surveyed laud on the northwest, the said tract must, in the absence of any other liue marked on the ground for its northwestern boundary, be carried to the line of the Meade surveys, if there was no other surveyed land to the southwest of that line.”</p> <p>Answer. “ This point assumes that the survey of the warrant named calls for surveyed lands on the northwest. We are not prepared to sav that the survey is such that it should be interpreted as a call, but we say, as we have already said in the general charge, that if the surveyor adopted the line of the Meade land as the boundary of the warrantnamed, then the northwestern line of such warrant does extend to the line of the Meade land.”</p> <p>Defendant requested the court to charge, inter alia, as follows :</p> <p>“6. That the name of George Meade, merely written on the paper containing his return, as the owner or supposititious owner of land northwest of the Mifflin block or surveys, is not a call for any line of the Meade surveys or evidence of his intention to adopt the line of the Meade surveys as the northwestern boundary of the surveys'of the Mifflin warrants.”</p> <p>Answer. “ We think that the name, George Meade, written on plot which accompanied the return of survey, is not without more, a call for any line of the Meade land ; but we think it is evidence proper to be taken into account by the jury upon the question as to whether the surveyor did adopt the line of the Meade surveys as the northwestern boundary of the surveys of the Mifflin warrants.”</p> <p>“ 7. The absence of any mention of Meade lines or lands in the returns of the surveyor who surveyed the Mifflin and Red-man warrants, is evidence that he did not adopt any such line as the boundary of the surveys then made.” Answer. “ Affirmed.”</p> <p>“14. That the original returns of the deputy surveyor, E. Williams, on the Mifflin warrants, do not call for the Meade ' surveys.” Answer. “Affirmed.”</p> <p>The court charged the jury, substantially, that if they were • satisfied from the evidence that the surveyor, who made the • surveys in 1794, did not adopt the Meade line as the north-1 western boundary of the land now owned by plaintiff, the verdict should be for the defendant, otherwise for the plaintiff. .</p> <p>• Verdict for defendant and judgment thereon. Plaintiff took this writ, assigning for error tiie answers of the court to the points as above given.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1885, No. 55.</p> <p>This was, in the court below, a scire facias sur sheriff’s recognizance by the Commonwealth, at the instance of John Gilmore, against James Borlin, late sheriff of Westmoreland county, and his sureties, to recover damages resulting from the action of the said sheriff in staying certain writs of execution without plaintiff’s consent and after he had notice from plaintiff of a claim for rent out of the money that might be realized from the sale of the personal property upon these writs.</p> <p>; On the trial,-before Hunter, P. J., the folio wing facts appeared : On May 12th, 1879, H. F. Ludwick issued an alias ji.fa. against John F. Thomas for the sum of $1,050 and costs recovered upon a judgment in the Court of Common Pleas of Westmoreland county, returnable to the fourth Monday of August and placed the same in the hands of James Borlin, who was then sheriff of said county. To this writ Borlin made i'éturn as follows:</p> <p>“August 5th, 1879. I did levy on the within described personal property of John F. Thomas, which property still remains in my hands unsold for want of buyers, so answers.</p> <p>“James Borlin, Sheriff.”</p> <p>Then follows a list of the articles levied upon, consisting of Stock, crops and farming instruments.</p> <p>On May 22d, 1879, another writ offi. fa. was issued out of the same court in the suit of Hazlett and Williams against John F. Thomas, the same defendant; this was also returnable to the fourth Monday of August next and -was delivered to the sheriff, to which writ he made return as follows: “August 5th, 1879. Same return as at No. 5 (being the suit of Ludwick v. Thomas, as above), August Term 1879.”</p> <p>Attadhed to one of these writs was the following paper:</p> <p>“Hazlett & Williams, Fi. Fa., August Term, 1879.</p> <p>vs.</p> <p>John F. Thomas.</p> <p>To James Borlin, Sheriff.</p> <p>• “You have executions in your hands in favor of Hazlett & Williams against John F. Thomas, and you have made a levy upon the personal property of said John F. Thomas, now take notice that I, John Gilmore, as landlord, claim to receive out of the proceeds of the salé of said personal property rent not exceeding that of one year, namely six hundred dollars, which was due and in arrear before your said levy, of all which you will take notice. John Gilmobe. .</p> <p>“ Greensburg’, Pa., September 2d, 1879.”</p> <p>On September 8th, 1879, a vend. ex. in the suit of Hazlett and Williams against Thomas was issued and placed in the hands of the sheriff, to which he made return as follows: “November 10th, 1879. Stayed by order of the plaintiff.” On September 8th, 1879, a vend,, ex. was also issued in the suit of Ludwiek against Thomas, to which the sheriff made the following return: “November 10th, 1879. After §220 paid to plaintiff, the writ was stayed by order of plaintiff.”</p> <p>The evidence on behalf of the plaintiff was direct and undisputed that Thomas was the tenant of John Gilmore; that the arrears of rent claimed, not exceeding one year, were due and unpaid and that the property levied upon was of sufficient value to pay the same. There was no testimony to show when, or by whom, the notice of Gilmore's claim was attached to the return. Neither did the return itself make any mention of the paper.</p> <p>The defendants asked tlie court to charge “ that there can be no recovery in this action, for the reason that the writs as returned show that they were returned into the prothonotary’s office on the 5th day of August, 1879; that the return day for the August court of 1879 was August 25th, 1879; that on that day the writs were dead in the sheriff’s hands, if they were there at all; that there is no evidence showing that the notice of 2d September, 1879, was ever delivered to sheriff Borlin or any of his deputies, and for these reasons the plaintiff cannot recover.” Answer. “ Refused.”</p> <p>The court reserved, as a question of law, “whether or not the notice came in time, and whether or not the plaintiff would be entitled to recover from the showing of the record,” and instructed the jury pro form,a to find for the plaintiff the amount that is demanded, subject to the above question of law.</p> <p>. Verdict accordingly for. the plaintiff for §689.50, subject as aforesaid. Subsequently, on motion, the court entered judgment on. the verdict on the question reserved. Defendant then took this writ, assigning for error the action of the court in not submitting to the jury and not permitting them to find ' the fact whether or not a notice by Gilmore, the landlord, had been served on the sheriff or his deputies, and in entering •judgment for the plaintiff on the verdict on the reserved question.</p>

<p>Appeal from the Court of Common Pleas of Greene county : Of October and November Term 1885, No. 56.</p> <p>This .was an appeal by W. S. Adamson and Jesse Hunnell & Co., from a decree of said' court overruling their exceptions to, and confirming the report of, .the Auditor appointed to distribute a fund arising from a sale of the personal property of Robert Dougherty.</p> <p>■' The facts, as found by J. B. Donley, Esq., Auditor, were substantially as follows: In December, 1883, and for somé years previous, Robert Dougherty carried on the business of manufacturing carriages in Waynes burg. On December 31st, 1883, the sheriff, of Greene county, by virtue of a fi.fa. issued from the Court of Common Pleas, levied upon all the personal property of Dougherty, consisting of the stock and tools per-, taining to the buggy factory. Other executions, including those of Adamson and of -Hunnell & Co., issued out of said court and came into the hands of the sheriff on the same day. A levy was made by the sheriff on each of these writs and the property was taken in execution.</p> <p>On the day of the levy, December 31st, 1883, notices of claims, for labor were served on the sheriff by Ernest Hundertmark, Patrick Driscoll, David E. Engle and Joseph Yahl. The notice of Hundertmark was as follows :</p> <p>“ Waynesburg, Pa., Dec. 31st, 1883.</p> <p>“ Robert Dougherty</p> <p>To Ernest Hundertmark, Dr.</p> <p>1883. To balance due on account for labor as a mechanic done in the carriage, factory of said Dougherty within the last six months.................................................$27.10 ”</p> <p>Attached to this was Hundertmark’s affidavit that said sum was due “for wages as a mechanic iii the carriage factory of said Dougherty during the six months last past. That said amount is due and unpaid, the credits and payments made by Dougherty having been deducted before the balance was struck.”</p> <p>Endorsed on this claim was the following notice:</p> <p>“Dec. 31st, 1883.</p> <p>“D. A. Spragg, Esq., Sheriff:</p> <p>“You are hereby notified that I claim the amount of the within probated account out of the estate of Robert Dougherty, the same being due me for wages as a mechanic for labor performed within the last six months. I further notify you to pay the same in preference to any other claim or writ, under the Act of Assembly in such cases made and provided.</p> <p>“ Ernest Hundertmark,</p> <p>“ By R. F. Downey, his Att’y.</p> <p>“Rec’d Dec. 31st, 1883, at 5:10 P. M.</p> <p>“ D. A. Spragg, Sh’ff.”</p> <p>The notices of the other claimants were filed by the same attorney and were in the same form as the above.</p> <p>The Auditor allowed these claims, being of opinion that there was a fair compliance with all the essentials of a propel notice and recommended a distribution accordingly. Adam-son, one of the execution creditors, filed the following exception to this award: “1. The Auditor erred in allowing claims of Ernest Hundertmark, Patrick Driscoll, David Engle and Joseph Yahl, as the notices of claims are defective and insufik cient.”</p> <p>The court, Inghram, P. J., dismissed this exception and confirmed the report of the Auditor.</p> <p>Thereupon this appeal was taken by Adamson and Hunnell & Co., assigning for error the action of the court in overruling the above exception and in confirming the report of the Auditor.</p>

<p>1. A wager upon the result of a primary election is not a penal offence within the provisions of the Acts of March 24th, 1817, and July 2d, 1839. These Acts, being penal in their nature, will not be extended to primary elections which did not exist at the time of the passage of the same.</p> <p>2. The words “ any election within this commonwealth,” as used in the' Act of July 2d, 1839, apply only to the election of public officers.</p> <p>3. The Act of June 29th, 1881 (P. L., 128), entitled “ An Act to regulate the holding of and prevent frauds in tlie primary elections of the several political parties in the commonwealth of Pennsylvania,” does not bring primary elections within the purview of the Act of July 2d, 1839.</p>

<p>Error to the Court of Common Pleas of Jefferson county: Of October and November'Term 1885, No. 115.</p> <p>Ejectment, by Jacob Meinweiser against B. F. Hains and H. Brady Craig, to recover an undivided half of a lot of ground in the borough of Brookville. Plea, not guilty.</p> <p>On the trial, before Knox, P. J., it was agreed that Thomas K. Litch had a valid title to the premises in dispute on and prior to August 2d, 1871. On that day Litch conveyed the whole of said lot to Andrew Craig and Enoch H. Wilson, in equal portions as tenants in common. On June 12th, 1875, William Dickey entered a judgment in the Court of Common Pleas of Jefferson county against Enoch H. Wilson, David McGarey and James McGee for $1,200. On May 81st, 1880, Dickéy filed a prsecipe for a scire facias to revive the said judgment, with notice to all terre-tenants. This scire facias was issued on the same day, and was served upon Wilson on May 81st, 1880, upon McGee on June 22d, 1880, and upon McGarey on August 4th, 1880. On October 15th, 1880, judgment was entered, for want of an affidavit of defence, against all the defendants for the amount of the judgment and interest.</p> <p>On July 18th, 1882, a fieri facias was issued on this judgment, and inquisition having been waived on the original judgment, Wilson’s undivided interest in the land conveyed to Andrew Craig and him was sold and purchased by Jacob Meinweiser, the plaintiff in this case, to whom a deed was duly acknowledged in open court on September 18th, 1882. Meinweiser then brought this action of ejectment against Ilains and H. B. Craig, who were in possession of the property.</p> <p>The defendants showed the following title: On May 26th, 1879, E. H. Wilson sold his undivided interest in the Brook-ville lot to his co-tenant, Andrew Craig, and gave him a deed for the same dated the same day. This deed was not recorded until February 17th, 1883. On May 24th, 1879, the defendants entered a judgment against Andrew Craig for $603.38, with interest from May 25th, 1879, waiving inquisition. On January 16th, 1883, a writ of fieri facias was issued on this judgment, and the same property was levied upon and sold; it was bought in by the defendants, to whom the deed for the same was duly acknowledged on February 16th, 1883. The defendant then showed that, after the purchase by Andrew Craig in 1879, he had exclusive possession of the lot until February, 1880, at which time he rented it to his son, H. B. Craig, one of the defendants, who continued thereon until the purchase by the defendants at the sheriff’s sale.</p> <p>Defendants further showed that there had been no service of the seire facias to revive the Dickey judgment upon either Andrew Craig or IT. B. Craig.</p> <p>Plaintiff requested the court to charge the jury as follows:</p> <p>1. That as A. Craig had put on record the title from Litch to Craig and Wilson, which would sufficiently account for his alleged possession at the time of the revival of the judgment on which Jacob Meinweiser purchased,'his alleged occupancy would not be such notice of his exclusive claim of title as would discharge the lien of the judgment for the want of notice to him as terre-tenant. Answer. — “Under the facts in this- case, as we understand them, gentlemen, we answer this point in the negative.” (First assignment of error.)</p> <p>2. That as the judgment of Dickey v. Wilson et al. was entered on the 12th of June, 1875, and a scire facias issued thereon on the 31st of May, 1880, and under that judgment the property was sold to Meinweiser, the plaintiff, on the 14th of September, 1882, the judgment was a lien against the property at the time of sale, and the verdict of the jury should be for the plaintiff. Answer. “We answer that in the negative.” (Second assignment-of error.)</p> <p>3. That under the evidence the verdict of the jury should be for the plaintiff. Answer. “We answer that in the negative.” (Third assignment of error.)</p> <p>The defendants requested the court to charge “that, under the evidence, the verdict must be for the defendants.” Answer. “We answer that in the affirmative.” (Fourth assignment of error.)</p> <p>The court charged the jury, inter alia, as follows:</p> <p>Now, it is admitted apd conceded that if there were an amicable scire facias and the terre-tenant were not brought in, the lien on his property would be discharged. Then, if there is no distinction between the two, between the amicable scire facias and the writ of scire facias issued in the regular way, the rights are the'same so far as the terre-tenant is concerned; then he must have notice of the writ to bind his property, as well as join in the amicable arrangement. Such being the ease, and we will say to you that it is very far from being clear of doubt, our mind is very much confused over this thing, and it is not the first time we have thought the matter over. The cases are conflicting; they are so much so that it is very hard to tell just where this will finally end, and it will probably take another court, the Supreme Court, to settle this question and to reconcile these cases, because to our mind they are very troublesome cases, being very far from reconcilable. But let that be as it majq for the purposes of this case we have concluded. to instruct you that the service of the scire facias upon the terre-tenants in that property on thé Dickey judgment was not sufficient to continue the lien longer than the five years dating from the date of the original entry of the judgment, and that as. the sale took place seven years thereafter, the lien had been lost about two years, and there being no lien on the property, that the sale would pass no title.</p> <p>Verdict for the defendants and judgment thereon.</p> <p>Plaintiff then took this writ, assigning for error the answers to the points as above and the portions of the charge quoted.</p>

<p>1. Mines and quarries open at the beginning of a life estate may be worked by the life tenant even to exhaustion, without rendering him liable in damages for waste.</p> <p>2. It is not waste for a life tenant to cut and fell dead and decaying timber which would otherwise become worthless before the life estate fell in.</p> <p>3. An action for waste by a reversioner is founded upon damage done io the inheritance, and as the cutting of such timber would tend to enhance rather than diminish the value of the same by making room for new timber, there can be no recovery for such action.</p> <p>4. The common law rule as to what constitutes waste has been much relaxed in this state, especially in regard to timber. A life tenant may here cut down trees if they impede cultivation and if good husbandry requires their removal.</p> <p>5. Assignments of error, which do not conform to the rules of court, will be disregarded.</p>

<p>1. A note payable at the residence of the payee in West Virginia and delivered there for goods purchased, is a West Virginia contract and the law of that state must govern in determining its validity, obligation and construction.</p> <p>2. The right of a surety upon such a note to discharge his liability by notice to the creditor to pursue the principal debtor is an incident of the contract of suretyship and must therefore be determined by the law of the place of the contract.</p> <p>3. A surety upon a note cannot set up a defence on a suit against him by the administrator of the payee, that the plaintiff, after the note fell due, paid over money to the principal debtor which he owed him individually and did not apply the same to the payment of the debts to the estate.</p> <p>4. The laws of another state may be proved by means of a printed volume purporting to be printed by authority and to contain the laws of that state.</p>

<p>Error to the Court of Common Pleas of (Greene county : Of October and November Term 1885, No. 147.</p> <p>Ejectment, by Rodman B. Ellison and William P. Ellison, co-partners trading as John B. Ellison & Sons, against Daniel M. Anderson and Jane Anderson, his wife, to recover possession of a lot of ground in the borough of Waynesburg. Plea, not guilty.</p> <p>. On the trial, before Stowe, P. J., of the fifth judicial district, it was admitted that a valid title to the premises in dispute was in Samuel Montgomery prior to May, 1879, when he conveyed the same to Jane Anderson, wife of Daniel M. Anderson, for a consideration of $500.</p> <p>Plaintiffs showed the following title: Between April 9th and December'17th, 1874. plaintiffs sold goods to one 'Daniel M. Anderson, who Avas a merchant tailor, to the amount of $1,218.39.</p> <p>Subsequently plaintiffs recovered a judgment for this amount and issued a fi.fa. upon the same in 1882, under which the property in dispute Avas sold and bought in by plaintiffs, to Avhora a deed for the same was duly executed by the sheriff.</p> <p>The defendant, Jane Anderson, claimed title to herself under the deed from Samuel Montgomery and offered several witnesses to show that her husband, Daniel M. Anderson, in the year 1878 and subsequently, had, from habitual drunkenness, neglected and refused to provide for her and her children, twelve in number, and claimed that by reason thereof she became and Avas entitled, under the Act of May 4th, 1855, to all the rights and privileges of a feme sole trader under the Act of February 22d, 1718. '</p> <p>She further showed that she supported the family from her separate earnings as a seamstress and out of her earnings purchased the property in dispute, paying for the same in quarterly instalments. Jane Anderson had no separate estate nor did she ever petition the court for her separate earnings.</p> <p>It appeared from the evidence that Daniel M. Anderson, being in financial difficulties in 187G, transferred his stock and business to George II. Anderson, a relative in his employ; from the date of this transfer until the death of said George II, Anderson, on December 13th, 1879, the business Avas carried on in the name of George H. Anderson & Co. During this time Daniel M. Anderson remained in the shop, doing the cutting. He Avould do enough cutting to keep them busy for a time and then go on a spree. After the death of George, Daniel bought his interest and continued the business alone until the year 1881, Avlien he took in his son, Daniel M. Anderson, Jr.</p> <p>When Jane Anderson first purchased the property in dispute, 11. II. Phelan Avent on her note for the first $150 of the purchase money, Avhicli was paid in part by persons purchasing clothes at Anderson’s shop and paying the price of the same to Montgomery. A mortgage Avas also executed upon'the property by Jane Anderson and her husband to Montgomery for the balance of the purchase money; this moF ige was paid for by clothing and $72 in cash. Montgom, y testified that all the money he ever received was represented to him as coming from Mrs. Anderson ; and Avlien money was paid by George H. Anderson ■ & Co., it appeared that Mrs. Anderson would credit them on her work.</p> <p>It further appeared from the evidence that Daniel M. Anderson, when not intoxicated, was an industrious man.</p> <p>Plaintiffs requested the court to instruct the jury as follows:</p> <p>1. “Mrs. Anderson in this issue is 'claiming the property in dispute in opposition to plaintiffs, who are creditors of the husband, and now are the owners by purchase through the sheriff, of the interest of her husband in the property. The deed-upon which she relies is dated since her marriage; and before she can defeat a verdict for the plaintiffs in this case she must show affirmatively, that she not only has received money or other property by ‘ will, descent, conveyance or otherwise,’ but that ■ she actually applied them in payment of the property claimed.” ■</p> <p>Answer. “ This is affirmed. It is hardly applicable to this ease, although in general terms it is. She didn’t acquire it by ‘will, descent or conveyance,’ büt she did with the consent of her husband, ‘ otherwise,’ that is to say, according to the law of their position — now .1 am not endorsing it, I am only stating it-^-upon the presumption that the husband hadn’t provided for the wife arid she earned the money under the Act of 1855, as her own-; and interpreting it in that way, the point is affirmed.” (Fourth assignment of error.)</p> <p>5. “That the evidence in this case is not such as to entitle Jane Anderson, wife of Daniel M. Anderson, to the benefits of the Act of May, 1855; relating to feme sole traders. There was not sufficient evidence of the suspension of the marital rights of the husband to relieve the wife of-marital disabilities. Mrs. Anderson had no claim to the status of a feme sole, at the time of the purchase of the property in dispute.”</p> <p>Answer. “ This is refused. This is the question we submit to}rou t'o determine under the evidence. It is for you to determine and not for the court. This point is framed upon the hypothesis that there is not sufficient evidence to submit to the jury the fact of the husband not supporting the famil}\ We think there is evidence on that subject sufficient to submit it to yoivand evidence, which if 3iou belieVe such a state of facts to hate existed, would not only justify you but make it your duty to find a verdict for the defendants. There is evidence for your consideration upon the question of whether you ought to do that.' When there is no evidence, or a mere spark of evidence, or so little that we would be compelled to set aside the verdict if the jury found a certain way, we feel justified in taking a-case from the jury; but in this case, we think there is evidence here for your serious consideration, that you ought to scan carefully and dosel}’ — evidence offered on the part, of the defendant, here, which if you believe, would not only justify you, but make it your duty to find a verdict for the defendants; and thinking so, we have no right to take the ease from you, but submit it under all the evidence, simply saying that the burden of proof is on the defendant to establish to your satisfaction that she is entitled to the benefits of this Act of 1855, in order to justify you in finding for her.” (Fifth assignment of error.)</p> <p>6. “Under all the evidence in this case their. verdict must be for the plaintiffs.”</p> <p>Answer. “ This is also refused.” (Sixth assignment of error.)</p> <p>The court charged the jury, inter alia, as follows: [“The Supreme Court have held in a ease of this kind whenever it is made to appear to the satisfaction of the jury, that a husband by reason of drunkenness, profligacy or other cause, has failed, neglected or refused to provide for his wife, that is, to give her a reasonable — I suppose it means — a reasonable and competent living according to his supposed circumstances, or if without her own assistance she is unable to procure enough to eat'for herself and family, or if she hasn’t sufficient clothing — the word “provide ” means, shall give her that which shall be reasonable and necessary, I presume — the construction I would put on it —to keep the soul and body together, at least to keep her from freezing, to do that which is necessary to contribute to her reasonable health and comfort — or if a man from whatever cause, because it may not necessarily be from drunkenness — if he stays away from home, preventing him from doing that which he ought to do to maintain his’wife and family. — if from any cause so neglects his wife that she is unable to live by reason of what he does for her, then the provisions of this Act come into effect, and the law assumes that thereby he has forfeited his right to her labor, and gives her a right to maintain herself.] ....</p> <p>. “A man may make a great deal of money, but if he is drunk a great part of the time, it is not very likely, ordinarily, that much of it will go to the support of Ids family, because drunkenness costs a great deal-; and the evidence of it has a tendency to support the fact that he don’t providé for his family, first, because drunkenness makes men careless1 and indifferent, ánd they are also apt to be wasteful, and whatever they earn can’t go to the wife and family because it is gone before it gets there... Yet drunkenness may become a habit, and a man provide for his family just as liberally as yon or I, or even more so. So that the matter of drunkenness is only to be looked at as it bears on the question of provision for the family.</p> <p>“ [If he wasn’t drunk at all, and didn’t provide for the family, she would have a right to purchase the property and pay for it</p> <p>with her own earnings, and in case of a contest with her husband’s creditors, it would be for the jury to determine, as in this Case, whether or not the allegations, taken with the other evidence in the case, were true — that he didn’t provide for the family.] ■</p> <p>“ Now, gentlemen, whenever a person sets up a defense of this kind, or makes an allegation of this kind to take away the prima facie rights of others, as it is manifestly in the plaintiffs under the record in this case, the evidence should reasonably and fairly satisfy the jury that it is true.</p> <p>“ [You ought to be satisfied by the weight of the testimony in this case, that Mrs. Anderson was not provided for by her husband from whatever the reason — the apparent reason, if at all, being that of drunkenness. Now, did she have to support this family, or did the husband do it ? I don’t mean by that, did he not contribute some. I don’t apprehend that that is the meaning of the Act. Did he do it substantially, or was the family thrown into such a position by reason of his refusing to provide for them, whether arising from drunkenness or not, that she had herself to go outside of her ordinary domestic duties as a wife, and resort to her needle to keep the children in clothing and food? If she did, then she had a right, if she could do so, to take those earnings, or some of them, if any were left after providing for the children, to buy property and hold it in her own name, and keep the title for it as against her husband’s creditors. That is the whole - case, gentlemen, as I understand it here. Did the husband provide for the wife, or did he leave her in such a position that she had to resort to her needle to keep herself and children from suffering and perhaps starvation? If he did, then under the Act of Assembly, without any proceedings in court, the law gave her the right from that time to be what we call a feme sole trader— earn her money for herself, and spend her money for herself and her family; and if the evidence shows that that relation arose before she bought this property, and that she bought it on credit and subsequently paid for it with the product of her own earnings, then this property is hers, and your verdict ought to be for her; that is, the defendant.] If the evidence, however, don’t satisfy you of that fact, and the presumption of the law is the other way, you ought to find for the plaintiffs. [But if the evidence satisfies you fairly and reasonably, that the husband didn’t provide for her — for we must harp upon that -thing all the time, for that is the question in this case — then your verdict, if she paid for this property out of her own earnings, should be for her:] ”</p> <p>At the conclusion of the charge, counsel for plaintiffs made the following request: — “ If your Honor pleases, we would like you to instruct-the jury specially on the question of fraud —that even though they believe the evidence is such as to entitle Mrs. Anderson to the benefits of the Act of May 4th, 1855, yet if they believe that the property in dispute was actually paid for with money belonging to Daniel M. Anderson, then their verdict ought to be for the plaintiffs.”</p> <p>By the Court — “ I thought I had done that substantially. You don’t want me to argue the facts, do you? I might say something you wouldn’t want to hear.”</p> <p>Counsel — “ You couldn’t hurt us much now. You might as well go ahead.”</p> <p>By the Court — “Well, gentlemen, notwithstanding this' defendant was entitled to the benefits of this Act in purchasing this property, you must be satisfied fairly and fully by the evidence that she paid for it by the pi-oduct of her own labor. Not that she paid money, but if clothing was given, that it belonged to her or that she paid for that clothing by means of her own labor. (To counsel.) Will that satisfy you ? ”</p> <p>Counsel — -“You might as well go ahead now and say whatever you please. I don’t see that you can make it any worse, and we’ll get you on record.”</p> <p>By the Court — “Well, gentlemen, I thought the fact that the Guiher mortgage was not satisfied did not justify counsel in saying that the jury should infer, or had a right to infer any fraudulent act from that fact. It amounts to nothing. It is the most common thing in the world for people not to satisfy mortgages. So common indeed, that the fact gives us a good deal of trouble in our county, years and years afterwards. ”</p> <p>Verdict for defendants and judgment thereon. Plaintiffs then took this writ, assigning for error the answers to the points, the portions of the charge in brackets, and the remarks of the court at the conclusion of the charge.</p>

175. This was, in the court below, a petition by’ John Gumbert, et al., to set aside and rescind a decree of said court ordering the sale of “ The Old Brick Church,” situate in the township of Allegheny. Upon this petition a rule was granted upon Jacob Kepple, the trustee who made the sale, and upon Daniel Kepple et al., the petitioners for the said sale, and also upon the Pleasant Hill Cemetery Association, the purchaser of said old brick church and grounds.

<p>1. Under the special Act of March 20th, 1862 (P. L., 142), which repealed by implication the Act of February 26th, 1853, each district of the township of Hempfield is entitled to have one supervisor, who is to be elected, however, by the qualified voters of the whole township.</p> <p>2. Where all the essential provisions of a special Act of Assembly are supplied by a later Act, the former will be deemed to have been repealed by implication, although there be no repealing clause.</p>

157. Assumpsit, by the Exchange bank of Waynesburg, for the use of John C. Flennikin and W. T. E. Webb, now for use of F. W. Downey, against John Smith, to recover the sum of $2,249.27 with interest from April 1st, 1875, upon an alleged promise by defendant to pay the said bank the amount of a certain note, entered as a judgment against Hiram Smith, John C. Flenniken and W. T. E. Webb.

<p>Error to the Court of Common Pleas of 'Westmoreland county: Of October and November Term 1885, No. 153.</p> <p>Ejectment, by Jesse Fries against Joseph Null and Hester, his wife, William M. Null and W. J'. Shawley to recover possession of a tract of land containing one hundred and ninety acres of land, situate in the township of East Huntingdon. Plea, Not guilty.</p> <p>On the trial, before Blair, P. J., of the Fortieth Judicial District, it was agreed that a valid title to the land in dispute was vested in Joseph Null on March 1st, 1869.</p> <p>Plaintiff claimed title from said Joseph Null by virtue of the following deeds: Deed from Joseph Null and wife to Samuel H. Null, William M. Null, Philip Null and F. M. Null, Jr., dated March 1st, 1869.- Deed from Samuel H., William, and Philip Null, dated March 28th, 1871, releasing their interests to F. M. Null, Jr. Deed from F. M. Null, Jr. to plaintiff dated -April 6th, 1875 and recorded October 5th, 1875, for the consideration of $11,691. At the time this deed was executed plaintiff signed a paper showing how the above consideration was made up; the following is a copy of the paper:</p> <p>“ Judg’t Bond for $5000.00 dated 9 Apl 1869</p> <p>“ “ 1000.00 “ 17 Mch 70</p> <p>Interest due Apl 1875 360.00 on above</p> <p>Judg’t note 487.45</p> <p>“ note 3744.26</p> <p>Interest on all of above 1059.17 for one year</p> <p>11650.88</p> <p>Amt of error 40.12</p> <p>11691.00 ></p> <p>“I have this day purchased the farm of F. M. Null Jr. from him. The amount paid being as above stated eleven thousand six hundred & fifty dollars and eighty-eight cents, which was made up as above stated, although the consideration in the deed dated & delivered this day is mentioned as being ^eleven thousand six hundred & ninety one dollars an error having been made of Forty & 12-100 dollars in writing the amount.</p> <p>April 6th, 1875 Jesse Fries.”</p> <p>Attest:</p> <p>W. II. Keingensmith.</p> <p>On the day the deed was made the plaintiff satisfied of record the judgments he held and surrendered all the evidence of indebtedness. Plaintiff further gave in evidence articles of agreement entered into on the same day, April 6th, 1875, whereby he agreed to give Null the privilege or option of buying back, this property on or before the first day of January 1876, the said articles continued as follows: “The dis-</p> <p>tinct understanding being that if the said party of the second part, fails to pay the consideration money herein mentioned, to wit the sum of Eleven thousand six hundred and Fifty & 88-100 dollars on or before the first day of January A. x>. 1876, or in manner following to wit, One third of said sum on or before the 1st day of January, 1876, one third in pne year, and one third in two years, with interest on the unpaid purchase money from the date of a delivery of a deed by the party of the first part in fee simple clear of all incumbrances, receivable sooner however, otherwise to be null and void.</p> <p>“ And it is further agreed between the parties, that the party of the second part who is now in possession of the premises, for and in consideration of one dollar paid to the party of the first part hath hereby leased the premises until first day of April 1876 at which time the premises are to be delivered to the party of the first pa t in the same good order that they now are,” reasonable wear and tear and accidents happening by fire or otherwise excepted. The clause in this agreement in the nature of a lease not in any wise to interfere with any other provision or provisions in this article of agreement inserted and contained.”</p> <p>Under the above agreement Null went into possession of the land and testified that he gave notice that he would accept the option.</p> <p>In December 1876, plaintiff, treating Null as a tenant, served notice on him to surrender the premises on April 1st, 1877. Null not having surrendered possession, plaintiff brought ejectment against him and secured a verdict and judgment in his favor, to be released on payment by Null of the sums mentioned in said articles. The said sums not having been paid, plaintiff brought the present action, claiming that the former verdict was conclusive.</p> <p>Defendants offered in evidence a mortgage upon eighty-one acres of this land, given by F. M. Null to Hester Null, dated April 2d, 1875, recorded October 4th, 1875, and testified that he had given Fries notice of this mortgage before he took title, they also offered the record of a suit upon this mortgage and a sheriff’s sale of the said eighty-one acres to Hester Null.</p> <p>The defendants further showed a judgment obtained by William and Michael Null, against F. M. Null, a levy on the land in dispute, waiver of inquisition byF. M. Null, and sale on thefi. fa., and sheriff’s deed to William Null and Michael Null, dated 18th May, 1878, acknowledged 28th November, 1879. F. M. Null testified that the articles, accompanying the deed were “to give me the right to redeem the land and pay Fries his money, that is all he desired.” In order to substantiate this, he offered in evidence a note from Fries of which the following is a copy. “F. M. Null — Dear Sir: I think I have a buyer for your farm; we will be there to see it on Monday or Tuesday .of next week, 6th or 7th instant; be at home if you can. September 3rd, 1875.”</p> <p>On cross-examination, he admitted that after the conveyance to Fries, he brought an action against him to recover part of the sum which entered into the consideration of the deed as interest, on the ground that it was usurious: he also admitted that on the trial of that action the deed from himself to Fries was given in evidence as proof that he had sold the land to Fries and in that way had paid the usury. He further admitted that the judgments and evidences of debt, held by Fries, were satisfied and surrendered.</p> <p>Shawley, one of the defendants, who was a tenant of the Nulls, testified that, in a conversation with Fries, the latter said, “I hold a deed for that property; I loaned him (Null) a sum of money, and he gave me the deed and the mortgage together.”</p> <p>Plaintiff, in rebuttal, denied that he had any knowledge of the mortgage to Hester Null, that the agreement of April 6bh, 1875 was intended as a mortgage, and further denied any such conversation with Shawley.</p> <p>Plaintiff presented, inter alia, the following points :—</p> <p>“ 2. The paper writing of 6th April, 1875, signed by Fries and Null, gave Null the option to become thereafter a purchaser, and also gave him a lease of the property for one year. Such a paper does not constitute a defeasance, when the debt did not survive, and no loan made at the time.” Answer. “We have instructed you in the general charge that the various instruments executed by the parties on the 6th of April, 1875, do not constitute a mortgage. The papers themselves, in connection with the attending circumstances and evidence in the case, are not sufficient to satisfy us that it was the purpose of the parties to create a mortgage.” (Sixth assignment of error.)</p> <p>“5. The action of ejectment, Jesse Fries v. F. M. Null, No. 529, May T., 1877, being for the same tract of land now in dispute, and the plaintiff having recovered a verdict for the land to be released upon condition of paying the moneys mentioned in the article of agreement of 6th April, 1875, and the defendant having failed to pay these moneys, the title became absolutely vested in the plaintiff, Jesse Fries.” Answer. “The judgment in that case, in connection with the failure to pay the sums therein mentioned, could vest the title in the plaintiff as against F. M. Null, and all others claiming through him, under sales made upon liens or judgments entered since April 6th, 1875.” (Seventh assignment of error.)</p> <p>“8. The sheriff’s sale on the judgment of William M. Null and Michael II. Null v. F. M. Null, to No. 522, May Term, 1877, vested no title in William M. and Michael II. Null as against Jesse Fries to 190 acres, more or less.” Answer. “This point is affirmed.” (Eighth assignment of error.)</p> <p>.Defendants presented, inter alia, the following points:</p> <p>“2. If the jury believe that on the 6th day of April, 1875, Jesse Fries did. not want the land described in his deed from F. M. Null of that date; that he only wanted his money then owing him by Null; and that he only intended to secure it by taking the deed, and then his executing, at the same time, articles of agreement to re-sell and convey to Null; such articles of agreement, whether they contained an option or not, are a defeasance of said deed, and, together with it, constitute a mortgage.”</p> <p>“3. That, if the deed and agreement of 6th April, 1875, constitute a mortgage, then, as the agreement was not recorded, it was no lien upon the land described in the deed, and the judgments of William and Michael Null v. F. M. Null being duly-entered of record, were a lien ; and a sale thereon by the sheriff, and his deed to them, conferred upon said William and Michael a good title, and the jury must find for the defendants.” Answer to 2 and 3. “We do not think there is sufficient evidence in this case to justify us in submitting to the jury the question whether the deed can be treated as a mortgage.” (Ninth assignment of error.)</p> <p>The court charged the jury, inter alia, as follows: “We are disposed, upon the whole, although perhaps the question is not free from difficulty, to regard this transaction as a conveyance, or sale, between Fries and F. M. Null, and not a mortgage, and you will, therefore, treat it in that light. Being a sale, according to the instructions which we have given you, then whether Jesse Fries would have the right to recover, as against Hester Null, the portion of the premises covered by the mortgage, would depend upon the question whether Fries, at the time of the purchase by him, had notice of the existence of the mortgage in favor of Mrs. Null. If he had he could not recover against her. If he had not, he would be entitled to recover. That is a question of fact for you to determine under the evidence.”</p> <p>Verdict for plaintiff for the land described in the. writ, except so much thereof as was conveyed by the sheriff to Hester Null, and judgment thereon. Defendants then took this writ assigning for error the answers to the points, the action of the court in construing the transaction between Null and Fries to be an absolute sale, and in failing to submit the facts to the jury to determine whether the transaction was an absolute sale or a mortgage.</p>

<p>Error to the Court of Common Pleas of Mercer county: Of October and November Term 1885, No. 57.</p> <p>This was an action of debt by W. B. Hazen and W. A. Hazen, co-partners trading as W. B. Hazen & Son, on a policy of insurance, issued by the American Fire Insurance Company, to recover damages for loss by fire of certain premises of the plaintiffs, covered by said policy. Plea, nil debet.</p> <p>On the trial, before Mehabd, P. J., the following facts appeared : On June 1st, 1882, the plaintiffs effected an insurance with the defendant company in the sum of $1,000 on their flouring mill, machinery and fixtures. The application for the policy provided, inter alia, as follows: “ If the insured shall have or make any other insurance on the property herein insured, or any part thereof, without written notice to, and the consent of this company hereon.....then and in every such case the policy shall be null and void.”</p> <p>The policy provided that “ the insured under this policy, sustaining loss or damage by fire, shall forthwith give notice in writing of said loss to the company and as soon thereafter as possible render a particular account by separate items, and proof thereof signed and sworn to by the assured,” setting forth certain matters specifically mentioned.</p> <p>On February 16th, 1888, the entire building and contents were destroyed by a fire, which was the work of an incendiary.</p> <p>Notice of loss was immediately furnished the company; proofs of loss were furnished prior to May 10th, 1888, but were returned as defective. These defects were remedied and a subsequent proof of loss was sent and its receipt acknowledged by the company October 20th, 1883. This was also alleged by the company to be defective. W. B. Hazen was at the time of the fire and for a long time afterwards in feeble health and claimed that from February until August 1883, he was totally unfit for and did not pretend to do any business whatever, and that as soon as he was sufficiently recovered, he gave the matter his attention and on August 30th, 1888, made out the proofs.</p> <p>Defendant denied the right of plaintiffs to recover in this action, First, because the proof of loss furnished by plaintiffs, and on which plaintiffs rely, is defective in several particulars. Second, because this proof was not furnished within the time stipulated in the policy on which this action is based; and third, because, as the defendants allege, the property insured was burned by one of the parties plaintiff.</p> <p>Defendant offered in evidence the record of a judgment for $945 in favor of Emma Seedle against W. B. Hazen, filed February 8th, 1888, for the purpose of showing a motive on the part of plaintiffs in incumbering the property and after-wards burning it. Objected to as incompetent, because no such defence was set up in the affidavit of defence and under the rules of court no matter, unless so specified in the affidavit, can be set up at the trial, also because the judgment was against W. B. Hazen individually and not against the firm.</p> <p>The Court. “ As there is no plea or statement in the affidavit of defence filed claiming that the policy was void on account of any incumbrance on the property, the objection is sustained, so far as the offer is made for that purpose.” Exception. (Fifth assignment of error.)</p> <p>Defendant offered in evidence the record of an action in the same court by the Susquehanna1 Mutual Fire Insurance Company against Wm. B. Hazen, and especially that part relating to an application by Mr. Hazen for insurance in The Susquehanna Fire Insurance Co. for $1,500, dated the 12th of June, 1879, for the term of five years. Offered for the purpose of voiding the policy in suit under the rules of the defendant company.</p> <p>Objected to by plaintiffs. “ (1.) Because the papers in the case show that the policy is not in force. (2.) Because there is not such plea in this case alleging any such policy. (3.) That under the Acts of Assembly applications are no parts of policies or no parts of the contract unless attached to the policies themselves and printed with the policies. (4.) That even if it should be an application to the defendant company, the defendant could not offer it in evidence here.” Objection sustained. (Sixth assignment of error.)</p> <p>In rebuttal, plaintiffs proposed to ask certain witnesses questions to prove the reputation of the plaintiffs in this case .as peaceable, orderly, honest and good citizens to rebut the allegation made against them- that they burned this mill.</p> <p>Objected to by defendant upon the ground that it is incompetent, and also that the Statute of Limitations -would bar any prosecution against the plaintiffs for the burning of this mill, and that they are now in a position that no indictment can be framed against them. Objection overruled ,and evidence admitted. Exception. (Seventh assignment of error.)</p> <p>Defendant requested the court to charge, inter alia, as follows :</p> <p>1st. “ If the jury find as a fact from the evidence that the fire occurred on the 16th of February, 1883, that the proof of loss filed in this case was sworn to by the plaintiffs on the 30th of August, 1883, and should find as a further fact that the same was not forwarded to the defendant company until the 15th of October, 1883, a period of eight months, then they have not complied with the terms of the policy and the verdiet must be for the defendant.” Answer. “ Refused as explained in the general charge.” (First assignment of error.)</p> <p>2d. “ That if the plaintiffs or either of them have permitted any incumbrance on the property insured during the existence of the policy and before the date of the fire, without the consent of the company endorsed on the policy, then the policy by its terms is void and the plaintiffs cannot recover.” Answer. “ As the question raised by this request is foreign to the issue raised by the pleadings in the case, the request is refused.” (Second assignment of error.)</p> <p>3d. “ That under the facts of this case, as they appear from the papers on file, it is a question of law for the court whether the proofs of loss have been furnished in compliance with the [terms of the policy and should not be submitted to the' jury.” Answer. “ Refused.” (Third assignment of error.)</p> <p>5th. “That under the law and the evidence the plaintiffs cannot recover.” Answer. “Refused. Whether or not the plaintiffs can or can not recover is submitted to you in view of all the facts in the case.” (Fourth assignment of error.)</p> <p>The court charged the jury, inter alia, as follows:</p> <p>“ About October 15th, 1883, the plaintiffs furnished the proof of loss which is in evidence, and which, I instruct you, is a sufficient proof, so far as form and substance is concerned, and the question whether it was furnished within a reasonable term or not, I leave to you for you to determine in view of the circumstances of this case. If sufficient reason for so long delay has not been affirmatively shown by the plaintiffs, their neglect to comply with the requirement of their policy is fatal to their claim, and plaintiffs cannot recover. In this connection you will consider the items which the policy required to be expressed in this proof, the exactness of the proof which the company required, as shown'by their letters of May 10th, 1883, and the difficulty a person of ordinary intelligence and information would have, under the circumstances in getting such proof as the terms of the policy or the requisitions of the company required. If the plaintiffs used all reasonable means and exertions by themselves or through their agent or attorney to get together the requisite facts for a proof of loss, and to furnish such information as the company desired, and in so doing were unable to perfect the proof and furnish it to the company until the time the final proof in this case was furnished, their delay would not bar their recovery......You will also consider the evidence which has been given as to the character of W. A. Hazen, because where one is shown to be a man of good character for honesty, for peace and for good order, it is a fact which should weigh with the jury before they would come to the conclusion that he would be guilty of such an offence — it is one fact to be weighed with others, and all are to be taken together.”</p> <p>Verdict for plaintiffs for $1,046.70 and judgment thereon. Defendant thereupon took this writ, assigning for error the ■ruling upon the evidence, the answers to the points and the portions of the charge above noted.</p>

<p>1. An order awarding an inquest of partition is an interlocutory decree and no appeal lies therefrom, but the decree of confirmation, entered upon the return of the inquest is final and any person interested may appeal from the same. The partition proper is then complete.</p> <p>2. The return of an inquest in partition should be free from uncertainty or ambiguity, it should clearly show whether the land is appraised as an entirety or as divided into purparts, and if the latter be intended each purpart should be so described in the return that it may be easily identified.</p> <p>3. The practice of attorneys for petitioners in partition furnishing the inquest with proper instructions and form is one to be commended.</p> <p>4. In partition, the court has no power in the absence of a severance by a testator, to order the coal and surface to be divided and each appraised separately. Whether the inquest could make such division and appraisement, not decided.</p>

<p>Certiorari to the Court of Quarter Sessions of Armstrong county: Of October and November Term 1885, No. 140.</p> <p>This was, in the court below, a petition by A. W. Montgomery for a private road in Plumcreek township from coal mines on his land to a point on the Indiana Pike, partly over and partly under the surface lands of James Armstrong.</p> <p>The record showed, inter alia, the following: The petition was filed December 21st, 1883, and on the same day the court appointed three viewers who filed their report, March 3d, 1884, which was indorsed by the court on that day, “approved nisi and road ordered to be opened twenty feet wide.”</p> <p>On May 28th, 1884, James Armstrong filed, inter alia, the following exceptions to the report of the viewers : (1.) The appointment of the three viewers and their report were without authority of law. (2.) The assessment and report of the three viewers of the damages of James Armstrong was unauthorized by law. (3.) The report of viewers does not show that personal notice of the intended assessment of the damages of James Armstrong and said view, and the time and place, etc., thereof, was given to him as required by law. (4.) There is no law authorizing a road of the character indicated and intended by the petition and report in this case, nor is there any law authorizing the appropriation of private property as indicated in said report, and the same, especially as to the turning room, is erroneous and illegal. (6.) There was no coal mine open upon petitioner’s land, and the description in his petition of the beginning of said road was vague, indefinite, uncertain and exceptionable. (10.) The report is erroneous in not showing the width the viewers adopted as a basis for the assessment or computation of damages. (12.) The report is erroneous and exceptionable in that it does not show the considerations moving the assessment of damages of James Armstrong at the meager sum of $18, and also in that it does not itemize such damages adjudging what amount is for the land appropriated, and what for the coal, etc., etc.</p> <p>On July 7th, 1885, the court, Neale, P. J., after argument, dismissed the exceptions and confirmed absolutely the report of the viewers.</p> <p>James Armstrong then toot this writ, assigning for error the dismissal of the above exceptions, the order of the court directing the road to be opened twenty feet wide, and the confirmation of the report of the viewers.</p>

<p>1- Many papers, given in evidence generally, may, in the discretion of the court, be sent out with the iury.</p> <p>: 2. Proofs of loss, made out by the insured and admitted in evidence for the purpose of showing that the requirements of -the policy in regard to the same have been complied with, are for the court, who must judge of their sufficiency for that purpose. Being ex parte statements of the insured, they cannot be given in evidence for the jury, still less will they be permitted to be sent out with them.</p>

<p>1. The 90th section of the Act of April 14th, 1834, provides that “ as soon as the selection of jurors and the depositing of their names shall be completed, the sheriff shall cause the same to be locked and secured by sealing-wax, and thereon the said sheriff aud commissioners shall impress distinctly their respective seals.” On a motion to quash the array because the box was sealed only with the individual seal of one of the commissioners:</p> <p>Held, That the absence of the proper seals, as directed by law, was cause for quashing the array.</p> <p>2. The 83d section of the same Act further provides that every of the said wheels shall be provided with a sufficient lock and key; the wheel shall be in the custody of the commissioners of the respe tive county, (by Act of April 10th, 1807, jury commissioners were substituted for county commissioners) aud the keys thereof in the custody of the sheriff of the same county ” :</p> <p>Held, That the separation of the custody of the wheel and the key is a wise provision and a failure to comply with the same renders the array fatally defective; especially as the 84th section of this Act makes the neglect or refusal of the sheriff to take and keep the custody of the key a crime punishable with a heavy fine.</p>

<p>Under a deed, whereby the grantor conveyed all the bituminous coal and minerals under certain land together with all the necessary mining rights and privileges for which the grantee covenanted “ to pay twenty-five cents for each and every ton of 2,150 pounds screened coal so mined by them,” the grantee is not obliged to pay for the slack taken and sold by him.</p> <p>2. The meaning of the words “ screened coal,” as used in the above contract, is such coal as would pass over the customary screen in general use in the region where this mine was situated; the testimony being conflicting in this case, it was for the jury to determine whether such screen had been used.</p> <p>3. Where the grantee under the above deed made statements of the amount of coal taken and weighed and paid for the same taking receipts in full, such receipts will not operate as an estoppel if it can be shown that the grantees omitted to screen coal that should have been screened.</p> <p>4. The point at issue in the present case being whether the parties understood that screened coal included both lump and nut, payment for nut coal cannot be avoided on the ground that the lump coal was badly screened and included nut coal and refuse.</p>

<p>Error to the Court of Common Pleas of Cambria county : Of October and November Term 1885, No. 161.</p> <p>This was, in the Court below, an action of debt by John B. Baum against Vincent Tonkin, to recover the balance of purchase-money of a tract of land in Cambria county.</p> <p>On the trial, before Johnston, P. J., the following facts appeared: On May 24th, 1873, plaintiff agreed by articles of agreement to sell to defendant and R. C. McCurdy, who after-wards assigned his interest to Hipps & Lloyd, a tract of timber land situate in Susquehanna township, Cambria county. The consideration was five thousand dollars : two thousand to be paid on the 1st of July, 1873 ; one thousand on the first of June, 1874, and the balance, two thousand, on the 1st of June, 1875, with a limitation as to the quantity of timber to be cut each year until the land was paid for in full, unless security for the payments was given. The deed to be made at the last payment, with the same covenants for title which the plaintiff had received from the former owner.</p> <p>Tonkin being anxious to cut timber in larger quantities, Baum on January 13th, 1875, before all the payments were made, executed the deed for this property; no purchase money was paid at this time, but the previous payments and one payment made afterwards were receipted on the articles.</p> <p>Subsequently, on August 19th, 1876, Baum met Tonkin and Lloyd, of the firm of Hipps'& Lloyd, for the purpose of arranging a settlement of the balance of the purchase-money, when it was found that there was a balance of $2,375 due Baum. Of this sum Hipps & Lloyd agreed to pay, and did pay $1,075, and, as was alleged, Tonkin agreed to pay the balance, $1,300, and as security for the same executed to Baum a writing in the nature of a mortgage whereby he conveyed to Baum his undivided half in the said tract in consideration of $1,300.</p> <p>This agreement contained the following stipulation: “ This grant is intended as a security for the payment of one thousand three hundred-dollars on the fifteenth day of July, one thousand eight hundred and seventy-seven, with interest thereon at the rate of six per cent, per annum, which if duly made will render this conveyance void, and if default shall be made in the payment of the principal or interest above mentioned, then the said party of the second part, his heirs or assigns are hereby authorized to sell the premises above granted, or so much thereof as will be necessary to satisfy the amount then due with the costs and expenses allowed by law.” No bond or other instrument in writing accompanied this indenture.</p> <p>Baum testified in clear and positive terms, that at the time the deed was delivered, Tonkin agreed to pay him the balance of the purchase money (one thousand three hundred dollars in one year, and which was Tonkin’s share), and that afterwards Tonkin renewed this agreement in 1877, 1878, 1879 and in. 1880, but-none of these promises were in writing.</p> <p>Baum subsequently issued a scire facias on this mortgage and obtained a judgment upon which Tonkin’s interest in this land was levied upon and sold to Baum for a nominal consideration. It appeared that at this time Tonkin had removed most of the lumber from the land and that it was of little value.</p> <p>On the trial plaintiff offered in evidence the above mentioned mortgage of August 19th, 1876, for the purpose of showing that on that day Tonkin admitted an indebtedness of $1,300, and a contract between the parties.</p> <p>Objected to that the paper presented is in fact a mortgage, that it was so treated by the plaintiff in this case who entered the same of record'as a mortgage on the 4th of March, 1881, that upon this mortgage judgment has already been obtained, and that it imposes no personal liability upon the defendant in this ease and cannot be proceeded upon in an action of debt. Objection sustained. Exception. (Assignment of error.)</p> <p>Plaintiff also offered the original articles for the sale- of the land, dated May 21th, 1873, between J. B. Baum, Vincent Tonkin and R. C. McCurdy, to be followed by evidence that R. C. McCurdy authorized the deed set forth in this agreement to be made to Hipps & Lloyd instead of to himself; this to be followed by evidence that when the deed was signed and acknowledged no money was paid, that on the day it was delivered Tonkin agreed to pay the balance due from him, $1,300, and that he has since, on several occasions renewed that promise and agreed to pay the sum of $1,300, the balance of the purchase money.</p> <p>Objected to, because it is between parties other than the parties to this record ; and because, even according to the testimony of the plaintiff, the agreement is merged in the deed which was made and delivered. Objection sustained. Exception. (Assignment of error.)</p> <p>The court upon motion entered judgment of compulsory nonsuit, and subsequently refused to take off the same, filing the following opinion : “As to the facts we can find no authority for a recovery in a case like the present. The receipt on the deed is of no moment between strangers, and at most prima facie between the parties.</p> <p>“ Neither would the plea of the statute of limitations avail the defendant. MeClurg v. Fryer, 3 Harris, 293, and other cases dispose of that question. But for the reasons we have endeavored to adduce, the rule to take off the nonsuit is refused.”</p> <p>Plaintiff then took this writ of error assigning for error the exclusion of the evidence as above, the entry of nonsuit and the refusal to take off the same.</p>

163. Case, by Samuel Shaffer against J. Haish & Co. to recover damages for injuries received while in the employ of defendants, alleged to have been caused by reason of defendants’ failure and neglect to supply him with a-safe machine. The material facts of the case, showing how the accident happened and the condition of the machine, are fully set out-in the opinion of Mr. Justice Paxson, infra.

202. This was, in the court below, a petition by William F. Rum» berger and Mary A., bis wife, iu right of said Mary, for a citation upon John Murphy, assignee of Edward S. Golden under a voluntary assignment for the benefit of creditors, to show cause why he should not be dismissed and another assignee appointed.

<p>1. The words “ contractor, architect or builder,” as used in the Act of June 16th, 1836 (P. L. 696), which provides that a mechanics’ lien maybe filed for materials furnished such person, mean a person employed to construct the building and not a mere workman or material man.</p> <p>2. One who merely furnishes lumber for the erection of a building is not a contractor within the meaning of the above Act; there is no privity between him and the owner through which those from whom he may purchase may subject the building to a lien.</p> <p>3. In a scire facias upon a mechanics’ lien, it is manifest error to charge that if the claimant parted with his lumber on the credit of the building and on the representation of the man who ordered it that he was a contractor for the erection of the building, then the jury need not inquire into the actual relation between such person and the owner.</p>

126. Case, by George Reiber against George Walter, Jacob Boos and G. W. Miller, to recover damages for injuries to plaintiff’s mill caused by the backing of water by means of a dam built and xxxaintained by the defendants. From the record of the case the following facts appeared : The case was tried before Bredin, J., and two associates, and on February 22d, 1884, resulted in a verdict for defendants.

<p>Error to the Court of Common Pleas of Westmoreland County: Of October and November Term 1885, No. 159.</p> <p>This was, in the court below, a feigned issue under the Sheriff’s Interpleader Act to try the title to certain railroad coal cars, wherein the claimant, the Waverly Coal and Coke Company, was plaintiff, and the execution plaintiff, John D. McKennan, trustee, was defendant.</p> <p>On the trial, before Hunter, P. J., the following facts appeared: John D. McKennan, trustee, obtained a judgment iu Allegheny county against B. F. Rafferty and B. F. Rafferty & Co. and issued an attachment execution thereon against the Waverly Coal and Coke Company, to which tbe latter replied that they held a number of railroad coal cars of Rafferty which had been pledged to them for a debt.</p> <p>Pending this attachment, McKennan removed his judgment to Westmoreland county, when the Waverly Coal Company, seeing that an execution was about to he issued, notified the sheriff that they held thirty cars of Rafferty as security for a debt of $3,600, and. warned him that those cars were not subject to a levy on a writ oí fieri facias.</p> <p>A fi. fa. was afterwards issued on said judgment and the sheriff levied on seventy-six railroad coal cars, as the property of B. F. Rafferty & Co., and took a rule on the claimant to interplead.</p> <p>To this rule, claimant filed an answer, claiming all the seventy-six cars, part of them as pledged property and the balance as their absolute property; an issue was then formed, and after a bond and narr. were filed the sheriff withdrew from the property.</p> <p>The plaintiff’s narr. contained two counts, the first count claiming qualified property in the seventy-six cars as pledged to it for payment of a debt as aforesaid, there being nothing in the levy or schedule by which to separate or identify the particular cars held in pledge.</p> <p>The second count claimed absolute property in seventy-six cars generally.</p> <p>The defendant, by writing filed, asked that the first count in the narr. be stricken out for impertinence', upon the ground that the Act of Assembly and rules of court contemplated an issue only when absolute property was claimed, and on the further ground that the rule of court prescribed the form of the narr. and how the issue should be made.</p> <p>Plaintiff treated this as a demurrer and joined therein and, on argument, the court sustained the demurrer “without prejudice to.the rights of the plaintiff.” Exception. ' (First assignment of error.)</p> <p>To the second count, the defendant pleaded, and the issue being formed as to the absolute property only in the plaintiff, the cause came on for trial.</p> <p>Plaintiff offered to prove by ffm. McCune, superintendent of plaintiff company, that thirty of the cars levied on by the sheriff were B. F. Rafferty’s cars, and that forty-six of the cars levied on, and in the issue, belong to the plaintiff company absolutely; that they were in the plaintiff’s possession before leased to Rafferty, and were returned by him to the plaintiff, and are now in plaintiff’s possession; for the purpose of proving the issue on the part of the plaintiff.</p> <p>To which offer counsel for the defendant objected, for the reason that the offer is incompetent and irrelevant, it appearing from the record that an issue was awarded only as to thirty railroad cars, which were claimed by the plaintiff as a pledge for the security of $3,600 for rent. Objection sustained and evidence excluded. Exception. (Second, assignment of error.)</p> <p>Plaintiff then offered in evidence the lease of its cars and coal works to Rafferty, to show the foundation of plaintiff's claim on the thirty cars for $3,600, under the bailment stated in the narr. Objected to by defendant’s counsel as irrelevant and incompetent, and because in the count of the declaration under which this action now proceeds, absolute ownership is averred, and the offer purports to prove a qualified, restricted ownership. Objection sustained and offer refused. Exception. (Third assignment of error.)</p> <p>Plaintiff again offered the lease in evidence to show that the seventy-six cars — which may include the thirty cars — that forty-six of them were plaintiff’s own cars leased to B. F. Rafferty with the works, and returned by him to the plaintiff at the termination of the lease, before the issuance of the execution in the case; to be followed by other evidence to prove what is stated in this offer. Objected to as irrelevant. Objection sustained. Exception. (Fourth assignment of error.)</p> <p>Plaintiff further offered to show that all the cars levied on by the sheriff were in plaintiff’s possession at and before the time of defendant’s judgment and issuance of the execution ; that forty-six of the cars were plaintiff’s property absolutely, and thirty of them were held as security for a debt which B. F. Rafferty and B. F. Rafferty & Co. owed to the plaintiff, and were so held by plaintiff by agreement with B. F. Rafferty & Co., entered into some two months or more before defendant’s execution issued; that they were in the plaintiff’s exclusive possession as bailee under said agreement, at and before the time of the execution issued, and said B. F. Rafferty, defendant in the writ of B. F. Rafferty & Co., had no control over them whatever. Defendant objected to all of the above offer, except as to that showing possession of the chattels in the issue, for the reason that the same was incompetent and irrelevant. Objection sustained. Exception. (Fifth assignment of error.)</p> <p>The defendant requested the court to charge “ That under all the pleadings and evidence in this case, the verdict must be for the defendant.” Answer. “ Affirmed.” (Seventh assignment of error.)</p> <p>The court charged the jury, inter alia, as follows: “ The plaintiff, having set up title to property as against the execution creditors of B. F. Rafferty & Co., must make out its case by competent proof. It has the affirmative of the issue, and must satisfy the jury that the identical property in dispute is its own property, and not that of the defendant in the execution.</p> <p>“Having, as I have said, stricken out the first count in the plaintiff’s declaration, all evidence tending to show a qualified property as set forth would be inadmissible; and only evidence showing an absolute property can be considered by the jury.</p> <p>“ In our opinion, the plaintiff has failed to show an actual, absolute property in these thirty cars in dispute. As to the others, the sheriff has made no complaint, and it is alone the right of the sheriff to complain in this wa}\ These, therefore, we need not consider. Taking this view, therefore, we are of the opinion that, under all the evidence, and under the pleadings as they now remain of record, the plaintiff has failed to make out a case, and we instruct you to find a verdict in favor of the defendant for the thirty cars, the title to which is now being tried.</p> <p>“ As we have said, we have no control over the remaining forty-six cars, there being no issue framed as to them. Your verdict for the defendant will therefore have the effect of settling the question as to the title to the thirty cars in which the plaintiff has set up a qualified property.” (Sixth assignment of error.)</p> <p>' Verdict for defendant for the thirty cars returned by the sheriff as being the property in dispute.</p> <p>Plaintiff thereupon moved in arrest of judgment and for a new trial on the ground that a judgment on the verdict would make a perfect record, enabling the defendant to demand a return of thirty of the cars upon plaintiff’s forthcoming bond, clear and discharged of any claim of the plaintiff thereon, and would justify the sheriff in seizing and selling them, and would afford a perfect estoppel against the plaintiff in a defense to its bond in a suit against the sheriff or the vendees of the cars under him.</p> <p>After argument on this motion, the court made the following order: “And now, July 25th, 1885, the motion in arrest of judgment and for a new trial is overruled, and on the filing of a paper by the defendant releasing forty-two of the cars from the sheriff’s levy, judgment may be entered on the verdict for the thirty cars, with costs of suit, without prejudice, however, to the rights of the Waverly Coal and Coke Co. set up in their notice to the sheriff, as to their said thirty cars.” (Eighth assignment of error.) .</p> <p>Judgment was subsequently entered in pursuance of this order, whereupon plaintiff took this writ, assigning for error the assignments above noted.</p>

<p>3. Under the Act of May'3d, 1855 (Purd. Dig., 1501), which authorizes courts of Quarter Sessions “to inquire of and to change or vacate the whole or any part of any public or private road which may have been laid out by authority of law, and opened in part,” the partitioners are not obliged to ask for a view in the alternative. They may .pray for either vacation or change separately, or the prayer may bo in the alternative.</p> <p>2. A writ of certiorari brings up the record only and not the evidence of collateral facts, hence an objection that one of the viewers in a proceeding to vacate a road was a signer to the original petition upon which a road was laid out, cannot be urged in the Supreme Court, as the former petition is not a part of the record of the proceedings to vacate.</p> <p>3. Semble that a person, who was a petitioner in a proceeding to open a road, is not disqualified from acting as a viewer in a subsequent proceeding to vacate the same road.</p> <p>4. A rule of court prescribing the time within which certain miscellaneous applications shall be made, is valid provided it takes away no right given by the general law of the land.</p> <p>5. The rule of the Court of Quarter Sessions of Allegheny county, prescribing that a petition for a review must be made before the expiration of the first week of the term succeeding that in which the report of the viewers is filed, is a valid rule and does not conflict with the Act of May 3d, (1855, which provides that any person interested shall be entitled for a review upon application therefor “at or before the next term.....after the report on the first view. ”</p>

<p>1. The amendment of charters of corporations of the first class is, by the Act of April 29th, 1874 (P. L., 73), committed to the discretion of the court to which the applicatioh is made; it is only when such discretion is abused that the Supreme Court can review the same upon a writ of certiorari.</p> <p>2. A petition for an amendment to a charter should contain all the facts necessary to enable the court to actunderstandingly; nothing should be left to inference.</p> <p>3. Any member liable to bo affected by an amendment to the charter of a corporation has standing to sue out a writ of certiorari, and remove the record for review.</p>