Volume 111 — Pennsylvania State Reports

<p>1. A person is in jeopardy within the meaning of the Fifth Amendment of the Constitution of the United States and of Article 1, § 10, of the constitution of Pennsylvania, when a jury has been empanelled and sworn to try him upon a capital charge.</p> <p>2. The discharge of a jury without the prisoner’s consent after it has been sworn in a capital case, is allowable only in a case of absolute necessity ; if it be made without such necessity, the discharge will operate as an acquittal.</p> <p>3. A jury was sworn upon an indictment for murder, and by the consent of the prisoner was allowed to separate over night before the case had been opened to the jury; the next day, the court regarding this as an irregularity which the prisoner’s consent could not cure, ordered the discharge of the jury and the empanelling of another; the prisoner objected to the empanelling of the new jury, and pleaded former jeopardy, which plea the court overruled. Held (a) that the plea should have been sustained; (b) that the separation of the jury did not give rise to such an absolute necessity as would justify the discharge, for if the trial had resulted in a conviction of an offence less than capital, the separation would not have been a fatal error.</p>

<p>1. In closely built up portions of a city it is the duty of the authorities to keep the entire street in a safe condition, but this is not the rule as regards country roads within the territorial limits of a city. It is sufficient if a portion of the width of the road is kept in smooth condition and safe and convenient for travel.</p> <p>2. Contributory negligence in any degree on part of the plaintiff will ^ .prevent recovery in an action for damages.</p>

<p>1. A conveyance of land with an agreement, condition or stipulation incorporated therein that on payment of money the same shall become null and void or cease and determine or become of no effect, or that the estate granted shall be re-conveyed, is a mortgage; and the form of the defeasance, if in writing, is immaterial.</p> <p>2. A mortgage whose consideration "in whole or in part is the stiffing of .a prosecution for a conspiracy to defraud, and for embezzlement as a bank officer, is void.</p> <p>3. The ninth section of the Criminal Procedure Act (Act of March 31, I860), does not authorize the settlement of a prosecution for conspiracy to defraud a bank and its depositors or of one for embezzlement as a bank officer.</p>

<p>1. A testator made the following will: “I also bequeath the balance of my estate, real, personal and mixed, to my three nieces, share and share alike, during their lives, and at their deaths to go to their heirs, in equal amounts to all heirs living at the time of their'deaths.”</p> <p>Held, that the devisees took under the rule in Shelley’s ease, the real estate in fee simple and the personal estate absolutely.</p> <p>2. The word hairs is always to be presumed to have been used by a testator in its technical sense, and is to be regarded as a word of limitation and not of purchase, unless it very clearly appears that it was used and intended by him in some other sense.</p>

<p>1. The court will, not construe a written contract where the parts in dispute are expressed in words that have no well defined meaning. Such words create an ambiguity and their construction becomes a mixed question of law and fact in which the court, and if necessary the jury, must have the aid of scientific men.</p> <p>2. A proper case stated is made when all the facts are agreed upon by the parties, and the court is asked to declare the law upon such admitted facts.</p> <p>3. A case stated in which there is one essential fact in dispute will be quashed-</p>

<p>1. A company incorporated under the Act of 1874, and its supplements, “ for the purpose of supplying- natural gas to the public for lighting, heating, manufacturing, and other purposes,” has no authority to lay its pipes under a public road traversing the lands of another.</p> <p>2. By appropriating land for a public highway, the only servitude imposed on it is the right of the public to construct and maintain thereon a roadway which shall, at all times, be free and open for the public as a highway. Laying and maintaining a pipe line under the road imposes an additional servitude on the land and abridges the right of the owner, and hence it is a talcing within the meaning of Art. 6, § 8, of the Constitution, requiring just compensation to be made,for property taken, injured, or destroyed.</p> <p>3. A court of equity will restrain, by injunction, the laying of a pipe line without making or securing compensation, as an injury of such a continuing and permanent nature, for which an action at law would not be a complete and adequate remedy.</p>

<p>Where a lease contained a clause authorizing a confession of judgment in ejectment for non-payment of rent and the tenant failed to pay the rent, and a judgment was confessed for the amount due, and a writ of haberi facias possessionem was issued, and under.it the sheriff ejected the tenant and delivered possession of the premises to the landlord, the tenant could not maintain an action for the malicious use or abuse of civil process.</p> <p>It was error, therefore for the judge to charge the jury that they might find punitive damages.</p>

<p>Error to the Court of Common Pleas No. 2, of Allegheny County: To October and November Term, 1884, No. 165.</p> <p>Ejectment by the Borough of Homestead against Frederick Scliuehman, Michael Marshall and Wm. M. Carney, to recover three lots of ground held in severalty by the defendants. Before the trial each of the defendants filed a disclaimer as to all the land except that occupied by himself; and the plaintiff filed an amended description of the land in controversy so as to embrace the three lots in one description, including the streets separating them. The said lots were situated along the Monongahela river.</p> <p>Both parties claimed under The Homestead Bank and Insurance Company, which in 1871 purchased a large tract along the Monongahela river, and in the same year made and recorded a plan subdividing the tract into building lots. On the plan the lots in controversy were marked as lying between the water and “First Avenue,” a street which ran nearly parallel with, the water (see diagram).</p> <p>The plaintiff gave evidence that in 1871, a sale was made by the Homestead Bank and Insurance Company of its lots, that at its sale, which was made with reference to the recorded plan, it was announced by the auctioneer and by the business manager of the company that the space between First Avenue and the river would not be sold for ordinary purposes, but was to be held for a public wharf. This evidence was admitted after objection. (1st and 2d assignments of error.)</p> <p>The defendants showed that in 1878 the Homestead Bank executed a mortgage to the Dollar Savings Bank covering with other property the lots in question; that under foreclosure of the mortgage the lot claimed by Schuchman was sold by the sheriff to one Ormsby Phillips, from whom by mesne conveyances all in good faith and for value, and without notice of any claim of reservation for public use, defendant Schuchman in 1880 derived title; that the other two defendants in the same year derived title to their lots by mesne conveyances; also all in good faith and for value and without notice, from the same Phillips, who had bought the lots at an execution sale under a judgment on the bond accompanying the aforesaid mortgage.</p> <p> </p> <p>It also appeared that the borough of Homestead, which embraced the land in question, was organized in 1880 : that it had never taken possession of or improved the said land ; that Carney had erected a saw mill upon his lot in 1881 without objection by the plaintiff, until he encroached on the street, when he was stopped by the authorities until he made 'an arrangement with them to pay a rent of $15 per month for the part of the street occupied by him. The defendant presented the following points to the court:—</p> <p>1st. That under all the pleadings and evidence in the case the plaintiff is not entitled to recover.</p> <p>2d. That the authority of an agent or officer of a corporation to make a parol dedication of land of a corporation for public use, will not be presumed; it must be shown affirmatively that the authority was conferred by corporate action, by order, or resolution properly adopted. Individual actions of officials without special authority or their presence at a sale of lots of the corporation, and acquiescence in announcement to bidders of an intention to reserve for public use a portion of the lots set forth in the plan, is not sufficient evidence to change or contradict the recorded plan, showing no public reservation in the plan.</p> <p>3d. Even if the jury believe that there was a valid parol dedication of the land in dispute by the Homestead Life Insurance Company as a wharf, a subsequent purchaser for value, without notice, will be protected; and if the jury belipve that the defendants, or any part of them, paid value for the land claimed, or any part thereof, without notice at the time of the alleged dedication, the verdict must be in favor of such defendant.</p> <p>4th. Recorded plans are the best evidence of the dedication or non-dedication of lots described in them ; and parol testimony cannot be admitted to contradict or explain said plan to the prejudice of innocent purchasers for value buying on the faith of a plan of record.</p> <p>5th. Purchasers of lots are not required to search beyond the records for secret trusts or claimants; and if the jury find that at the date of the sheriff’s sale to Ormsby Phillips before the plaintiff’s incorporation, that the tract in' dispute was in peaceable possession of the Homestead Compan}'-, and that the sheriff’s deed passed to Ormsby Phillips the right of possession, and that he obtained possession and delivered the same to defendants in this suit, there can be no recovery for the plaintiff.</p> <p>6th. If the jury believe that the borough plaintiff, in this case, never adopted the plan of the Homestead Bank Company in evidence and never accepted the land in dispute as part of said plan, then there can be no recovery by plaintiff for want of evidence of its acceptance of the alleged dedication of the lots in dispute.</p> <p>7th. That if the jury believe that from its incorporation in September, plaintiff took no charge of the land in dispute and exercised no control over same, -nor did any act whatever prior to bringing this suit, to mark said land or change the plan of same on record, to notify contemplated purchasers of said alleged parol dedication and the plaintiff’s acceptance thereof, plaintiff cannot recover in this action, if the jury find that the defendants paid value and bought without notice.</p> <p>8th. If the jury believe that the borough plaintiff permitted Wm. Carney, one of defendants, to erect a sawmill and place other valuable improvements on a portion of said disputed ground, with the full consent of councils of said borough, and that it entered into an arrangement to charge the owner of said tract $15.00 per annum as a license for building over on a public street, this fact is evidence to contradict plaintiff’s claim and right to recover in this case.</p> <p>9th. If the jury believe that the representations were made to the lot owners on First Avenue, that the lots in dispute were to be set apart as appurtenant to their lots as a public ground to afford an unobstructed view of the river, etc., then the alleged parol grant was a mere easement for said lot owners in the tract, and the action of ejectment will not lie.</p> <p>10th. In the absence of any testimony of uses for wharf or public purposes of the land in dispute and in possession of Schuchman, the fact that this land was afterwards included and conveyed by mortgage, in evidence executed by The Homestead Bank and Insurance Company to the Dollar Savings Bank, would work a revocation of the alleged dedication, and plaintiff cannot recover for such portion of the laud.</p> <p>White, J., answered all these points as follows: — “Nearly all the principles stated in the foregoing points are embraced in the reserved question on the special verdict. Wherein' they are not so embraced they are refused.”</p> <p>The court submitted to the jury the question whether there was a parol dedication of the land in question to public use in 1871, instructing them, if they so found, to render a verdict for the plaintiff in the form of a special verdict; if they found there was no such dedication, then to render a verdict for the defendant, and in case of a verdict for the plaintiff reserved for the consideration of the court in banc the following questions: — 1st. Whether on the points of law presented by counsel the plaintiff is entitled to recover.</p> <p>2d. Whether on the facts found by the special verdict the plaintiff is entitled to recover.</p> <p>The jury found a special verdict as follows:—</p> <p>1st. That when the property was first put into the market at the public sale of lots in September, 1871, the crier and also the secretary of the Homestead Bank and Insurance Company acting as agent for said company in the presence of the president and a majority of the directors of said company, publicly announced to the bidders that the strips of land lying between First Avenue and the river, as shown on the recorded plans, would not be sold but were reserved and, dedicated for public use, on the faith of which declarations some of the purchasers bought lots.</p> <p>2d. That Ormsby Phillips who purchased the lots in dispute at sheriff’s sale in 1880,' on judgments against the Homestead Bank and Insurance Company, purchased without notice or actual knowledge of any claim that they had ever been reserved or dedicated to public use by.said company.</p> <p>And the jury find for the plaintiff for the three lots described in the writ, with six cents damages and costs, subject to the opinion of the court on the questions of law reserved as stated in the charge of the court.</p> <p>The court in banc refused a new trial and entered judgment for the plaintiff on the points reserved. The defendants took this writ and filed assignments of error as follows: — 1st and 2d, the admission of the parol evidence of dedication, 8d to 12th, not affirming the points presented by the defendants, 13th, the answer to the said points; 14th, not stating in terms the facts admitted or found by verdict and the questions of law arising on such facts; 15th, entering judgment for the plaintiff.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term, 1885, No. 18.</p> <p>Ejectment by Margaret Mellon, wife of J. M. H. Mellon, formerly Margaret Lemmon, in right of and for use of wife; Harriett Frazier, wife of L. O. Frazier, formerly Harriett Lemmon, in right of and for the use of said wife; and Nancy Lemmon, all children and heirs at law of William Lemmon, deceased; James Wilson, husband of Jane Wilson, deceased, formerly Jane Lemmon; John Henderson and Rebecca J. Henderson, his wife, formerly Rebecca J. Wilson, in right of and for the use of said wife ; Clarissa Voight, formerly Clarissa A. Wilson, Margaret J. Boreland, wife of Matthew Boreland, formerly Margaret J. Boreland, in right of and for the use of said wife; and James S. Wilson, heirs at law of Jane Wilson, deceased, formerly Jane Lemmon, plaintiffs; against Mary Lemmon, widow of Thomas Lemmon, deceased; Lydia A. Quinette, wife of Alfred Quinette, formerly Lydia A. Lemmon; Mary E. McCutcheon, wife of Robert S. McCutcheon, formerly Mary E. Lemmon; and Henrietta Sweeny, wife of - Sweeny, formerly Henrietta Lemmon; children and heirs at law of Thomas Lemmon, deceased; and John Dick, defendants.</p> <p>Plea, not guilty.</p> <p>This was an ejectment between the collateral heirs of Robert Lemmon, deceased, brought 15th March, 1883, to determine the title to a tract of land which formerly belonged to said Robert Lemmon, who died in June 2, 1871.</p> <p>On the trial of this case, before Ewing, A. L. J., the following facts appeared:</p> <p>Robert Lemmon was a bachelor, who accumulated some property, and in the early part of his life was generally employed as a farmer for different persons in Indiana township, in Allegheny County. On the 17th of November, 1841, he purchased the land in dispute from William Henderson. The deed is duly recorded. Shortly after the purchase, Thomas Lemmon, the brother of Robert, moved on to the farm with his wife and family, and remained there until his death, which occurred in 1876, and during his lifetime, Robert Lemmon, when out of a situation, made his home with his brother Thomas, up to his death in June, 1871, for the last few years of his life, when he became old and diseased, he resided permanently with his brother.</p> <p>On the 18th day of September, 1869, Thomas Lemmon presented his petition to the Court of Common Pleas of Allegheny County, Pa., setting forth that his brother, Robert Lemmon, was a lunatic, and was seised of a farm, &c., in East Deer township, in said county, and was incapable of managing his estate. An inquisition was awarded, and on October 18th, 1869, the inquest was returned, finding that Robert Lemmon ■was a lunatic, and had been a lunatic for five years last past. That he was 63 years of age, and was possessed of a tract of land, &c., worth $3,500, and of the yearly value of $100, clear of taxes, and that his next of kin were Thomas Lemmon, aged 60 years; David Lemmon, aged 65 years; Hugh Lemmon, aged 70 years; Nancy Speer, aged 72 years; Jane Wilson, aged 64 years; Rebecca Halstead, aged 50 years.</p> <p>On November 6th, 1869, the inquisition was confirmed, and Thomas Lemmon was appointed committee of the person and estate of said Robert Lemmon, and directed to give bond, &c. Same day bond of committee approved and filed. No account was filed by the committee in his lifetime, but on the 9th day of July, 1883, Joseph Henderson, administrator of Thomas Lemmon, deceased, filed the account of Thomas Lemmon, committee, claiming a balance due the committee of $1,740.58|-. In this account there was a credit given of $158.33|- for the rent; of this farm from the 6th day of November, 1869, until the death of Robert Lemmon, to wit, June 2d, 1871.</p> <p>On the trial the title in Robert Lemmon, the lunatic, was admitted, and also that he never owned but this one tract of land in this county, and also that the heirs at law were as stated in the abstracts, and the defendants then set up title to the land under a conveyance by Robert Lemmon to their father, Thomas Lemmon, made on the 26th day of September, 1861, and recorded (after Robert Lemmon’s death), to wit, on the 7th day of June, A. D., 1871, in Deed Book, vol. 274, page 260.</p> <p>This paper is in the words and figures, to wit:</p> <p>Robert Lemmon h I Deed Book, to > vol. 24, pp. 260, 261. Thomas Lemmon, j</p> <p>Know all men by these presents, that I, Robert Lemmon, of the township of East Deer, county of Allegheny, and State of Pennsylvania, in and for the consideration of the sum of one thousand dollars, to me in hand paid by Thomas Lemmon, of the township, county, and state aforesaid, at and before the sealing and delivery hereof, the receipt whereof I do hereby acknowledge, have granted, sold, assigned, and set over and convey unto the said Thomas Lemmon, his heirs, executors, administrators and assigns, all my estate, both real, personal and mixed, for the use of the said Thomas Lemmon, his heirs and assigns forever — to have and to hold, all and singular, the property granted, both real, personal and mixed, or mentioned, or intended so to be, unto the said Thomas Lemmon, his heirs and assigns forever — subject, nevertheless, to the right of redemption of the aforesaid property, both real, personal and mixed, by the said grantor, Robert Lemmon. In witness whereof, I have hereunto set his hand and seal this 26th day of September, A. D., 1861.</p> <p>Robert Lemmon. [Seal.]</p> <p>Witness, Wm. Y. Evans.</p> <p>Received the day of the date of the foregoing indenture of assignment of the within named Thomas Lemmon, the sum of one thousand dollars, the consideration money, above mentioned, in full.</p> <p>Robert Lemmon.</p> <p>Witness, Wm. V. Evans.</p> <p>This paper was duly acknowledged and recorded.</p> <p>The plaintiff asked the court to charge :</p> <p>1st. That the paper offered by the defendants, dated 26 th September, 1861, is a mortgage, and not an absolute deed of conveyance.</p> <p>Answer. We do not deem it necessary to determine whether or not the paper in evidence under the testimony constitutes a mortgage or a conditional deed. It gave to Robert Lemmon the right to redeem the property, on payment of the amount advanced by Thomas Lemmon, within a reasonable time. The paper was executed 26th September, 1861. If, within a reasonable time, Robert Lemmon redeemed the property by paying the debt or purchase money, or other necessary expenditures, to the satisfaction of Thomas Lemmon, the land became the property of Robert Lemmon.</p> <p>If this were done prior to October, 1869, it was within a reasonable time. If the transaction was a mortgage, Thomas Lemmon would have a right to make the repairs and the improvements necessary to the proper care and enjoyment of the same, and unless the jury are satisfied that the property had been redeemed by Robert Lemmon in his lifetime, there is not sufficient evidence to justify the jury that the net profits thereafter have been sufficient to repay the $1,000 mentioned as the consideration and improvements. (Third assignment of error.)</p> <p>3d. We request the Court to charge, that the judgment and decree of the Court at No. 131 December Term, 1869, in evidence (the lunacy proceedings), estopped Thomas Lemmon, and those claiming under him, from setting up title under the paper of September 26th 1861.</p> <p>Answer. The third point is refused. (Fourth assignment of error.)</p> <p>5th. That, under all the evidence, the plaintiffs are entitled to recover the undivided five sevenths of the land described in the writ.</p> <p>Answer. The fifth point is refused. It is for the jury to determine. (Fifth assignment of error.)</p> <p>6th. That if the jury find, from the evidence, that the conveyance from Robert to Thomas was made without consideration, and to take effect upon Robert leaving the neighborhood, and with the right to redeem the land, and have it back in case he returned at a future time, and that in point, in fact, Robert never did leave the neighborhood, but remained until he died, about ten years thereafter, then the verdict should be for the plaintiffs.</p> <p>Answer. This point is refused for want of evidence sufficiently definite to sustain it. (Sixth assignment of error.)</p> <p>7th. That the fact that the paper of September 26, 1861, refers to all the estate of the grantor, real and personal, without further description, is evidence to show that the' transaction between the two brothers was one contingent and conditional, and not an absolute conveyance of the land in dispute.</p> <p>Answer. Refused. (Seventh assignment of error.)</p> <p>The court charged the jury as follows:</p> <p>The action that you are called on to try, is an ejectment brought to recover the undivided five sevenths of a tract of 117 acres of land, situate in East Deer township, in this county. The property in question, it is conceded, belonged to one Robert Lemmon, to whom it was conveyed by William Henderson, in November, 1841. Robert Lemmon died on the 2d day of June, 1871, unmarried, and, neither his father nor mother living, he left as his heirs seven brothers and sisters. One of them was Thomas, who has since died. The defendants are his children. The plaintiffs are the descendants of five of the other six heirs. If there was no more than this in the case your verdict should be for the plaintiffs for their claim. The defendants claim title to this property through their immediate ancestor, Thomas Lemmon, the brother of Robert Lemmon, deceased, prior owner. They offer in evidence a paper executed and acknowledged on the 26th day of September, 1861, and recorded on the 7th day of June, 1871, a week after the death of Robert Lemmon. In that paper Robert Lemmon makes in form, first, a conveyance of all his property, real, personal and mixed, wherever it may be (or an assignment of it, whatever you see fit to call it)', to his brother, Thomas Lemmon, in consideration of $1,000, and reciting a condition, “Subject, nevertheless, to the right of redemption of the aforesaid property, both real, personal and mixed by the said grantor, Robert Lemmon.”</p> <p>We have had a learned and able discussion on the question as to what this paper is; it is rather .a novel paper, a little different from anything we have had occasion to construe, and we are asked bjr counsel on both sides to determine whether or not it be a mortgage or a conditional deed. A mortgage is where the property is pledged for the payment of a debt, and it is in our state immaterial in what form it may be. It might be an absolute deed on its face, and not contain a word in relation to it being a mere pledge for money, and the grantor being entitled to the property on the payment of the money. Nevertheless it may be shown, by oral testimony, that instead of being a deed of absolute conveyance, it was simply a mortgage, a pledge as security for money, to belong to the grantor again when he repaid the loan. Now, I incline to think that this is but a mortgage, and if the money was repaid, or settlement had, the property reverted tQ the original grantor, Robert Lemmon. I do not deem it necessary, however, to decide that question, because if it were a mortgage, and Robert Lemmon paid it in his lifetime, or before he became a lunatic (and it is not pretended he paid it afterwards) the property reverted to him. If it were a conditional deed, under which he had a right to redeem the propert}-, as said in this paper, and he did that in a reasonable time, no time being mentioned, he was entitled to the property in equity, and all he wants is a proper declaration from the grantee, Thomas Lemmon, that it belonged to him. [Now, unless it were redeemed in the lifetime of Robert Lemmon, I do not think there is evidence sufficient for you to find that it has been redeemed by the yearly rents and profits over and above necessary repairs and improvements for the enjoyment of the property, so that I do not deem it a matter of very great importance in the view I take of this case, whether this is to be called a conditional deed or a mortgage.] If Robert Lemmon satisfied the condition, which would be the repayment of the amount advanced, with any necessary expenses, whether it be a mortgage or a conditional deed he is entitled to the property, and if that was not done, if the deed ever was delivered and went into effect, as it is presumed, he was not entitled to the property, or these parties under him. Now, both Robert Lemmon and Thomas Lemmon are dead. There is but little evidence on either side as to what the actual transactions were between them. It seems that prior to this conveyance Thomas Lemmon, the brother, having a family, lived on the farm, and he lived on it afterwards, and up to the time of Robert Lemmon’s death, and his death. Robert Lemmon, it seems, did not live on the farm, perhaps he made his home there in part — washing was done, some witnesses say, but he lived in the neighborhood the most of the time, working for some farmer for wages. He was supervisor at one time, according to the evidence of Mr. Himmelwright. Some one spoke, of the amount of wages he got on the farm — not very much, but he had no family. It seems, from the evidence, that his intellect became impaired, and the finding of the jury indicates that that occurred away back in 1864, three years after this assignment or mortgage, or whatever it may be. We have in evidence the proceedings in the Court of Common Pleas by which Robert Lemmon was declared a lunatic.</p> <p>Thomas Lemmon, the brother, and the ancestor of the present defendants, through whom they claim, is the petitioner in that case. He filed a petition alleging that his brother Robert was a lunatic, stating his relations, and stating that he owned a farm of 110 acres, more or less, in East Deer township. The evidence indicates, and it is conceded, that the tract in dispute is the only land that Robert Lemmon ever owned there. On that petition, signed by Thomas Lemmon, and sworn to by him, the court appointed a commission and proceeded to summon a jury before him, and according to their proceedings they had before them Thomas Lemmon, among others, and on their testimony the jury found that Robert Lemmon owned the farm in East Deer township, of the annual value, clear of taxes, &e., of $100. Thomas Lemmon was duly appointed committee to take charge of the personal estate of his brother. Robert Lemmon, and he gave bond conditional for the faithful performance of his duty. [Now that petition, inquisition and report, and the bond, would be conclusive on Thomas Lemmon as to the income of that estate, and he is bound to account for it from that time as the committee of Robert Lemmon. He was not in any hostile position to Robert Lemmon after that, up to his death. It would be conclusive on him, I think, as to the income of that farm, but this proceeding is not conclusive on him as to the title to the land, because he may have made a mistake.] It seems to the court, however, to be very strongly, presumptive evidence, that prior to that time Robert Lemmon had redeemed this farm and owned it, and Thomas Lemmon did not own it at that time, but it is for the jury to determine. If it had not been redeemed before that time I incline to think, and so charge the jury, that there is no evidence of a redemption thereafter that would, by the proceeds of the farm, over and above repairs and improvements, entitle the plaintiffs to recover. If the jury find from the evidence that the land was redeemed, they will find for the plaintiffs for the undivided five sevenths of the land in dispute.- The defendants are entitled to one seventh of it in any event. Parties not represented maybe entitled to another one seventh; the parties, plaintiff, can only get five sevenths of the land in dispute, and their proportional titles would have to be settled in another proceeding. If they do not find it was redeemed, the}’ will find for the defendants generally. If they find it was redeemed, their verdict will be for the plaintiffs for the undivided five sevenths of the land described in the writ, with six cents damages and costs.</p> <p>Verdict for the defendant, and judgment thereon; whereupon the plaintiffs took this writ, assigning for error: 1st. The general charge, and especially the part thereof enclosed in brackets. 2nd. That the court erred in not holding that the paper of September 26th, 1861, was a mortgage, and submitting to the jury whether the same, or any part thereof, had been paid and satisfied by the rents, issues and profits, and directing the jury to find and certify what sum, if any, was due, or owing upon the mortgage, to wit: In not directing a conditional verdict, fixing the amount that the plaintiffs would be required to pay to redeem the land. 3rd. In the answer to the plaintiffs’ first point. 4th, 5th, 6th and 7th. In refusing the plaintiffs’ third, fifth, sixth and seventh points.</p>

2, of Allegheny county: Of October and November Term, 1885, No. 52. This was an action on a book account for groceries brought by Robert McFall against William L. Gould and Caroline Gould, his wife, before an alderman. The alderman gave judgment for the plaintiff for $25.26. Caroline Gould appealed. There was nothing in the alderman’s transcript to show a liability on part of the wife.

60. Assumpsit by W. A. Kreuzkamp against George Noble, late doing business as George Noble & Co. The plaintiff filed an affidavit of claim in which he stated that the defendant doing business as George Noble & Co., was indebted to him, for a part of which indebtedness he held the defendant’s acceptance, to wit:— >9.00 Pittsburgh, Dec., 1883.

1, of Allegheny county: Of October and November Term, 1885, No. 59. Appeal by Wm.

2, of Allegheny county: Of October and November Term, 1885, No. 63. This was an appeal by Jane Bryar from a decree of the said court dismissing a bill in equity, wherein the said Jane Bryar was plaintiff and Thomas Campbell was defendant. The bill alleged : 1. That the plaintiff, Jane Bryar, was the widow of James Bryar, of the City of Pittsburgh; that he died August 30th, 188l, intestate, leaving her and seven children surviving him. 2.

1, of Allegheny county: Of October and November Term, No. 66. Ejectment by Adeline Clark against James H. Bell and Mrs. L. Coulter to recover a tract of land situated in Robertson Township, Allegheny County. On'April 1st, 1870, Adeline Clark and her husband Benjamin made a deed for the premises to James PI. Bell.

<p>Certiorari to the Court of Common Pleas, No. 2, of Allegheny eoimty: Of October and November Term, 1885, No. 75.</p> <p>On April 8th, 1882, Shoenberger & Co. et al. filed their petition in said court, setting forth inter alia that they are the owners of certain coal lands and mines, in Wilkins township, county of Alleghenj'-, in the vicinity of the Pennsylvania Railroad, and not more than three miles therefrom.</p> <p>That they have surveyed and marked a route over the lands intervening between their said coal lands and the said Pennsylvania Railroad for a Lateral Railroad with double tracks, with the necessary switches, sidings, chutes, machinery,' fixtures and appurtenances, and connecting with said Penn-' sylvania Railroad between Wilkinsburg and Edgewood stations, in Sterrett township in said county, viz: The whole of said lateral railroad being particularly described and set forth in a plan annexed and made part hereof.</p> <p>The route as marked, surveyed and described was through the lands of the Pittsburgh National Bank of Commerce, the Home for Aged Protestants, the Western Pennsylvania Institution for the Instruction of the Deaf and Dumb, and George R. Johnson, and was thirty-three feet wide for its entire length, except a - portion over part of the lands of said bank and the said George R. Johnson, where it was forty-five feet •wide.</p> <p>They further set forth in their petition “that they desire to be allowed to construct on said route a double track railroad, with the necessary switches, sidings, chutes, machinery, fixtures and appurtenances; and that all of said land so as hereinbefore described, and in said annexed plan marked and set forth, is necessary for said double track railroad, and the necessary switches, sidings, chutes, machinery, fixtures and appurtenances.”</p> <p>“They therefore pray this honorable court to file and enter of record this, their petition, and thereupon to appoint six disinterested and judicious men, resident in said county, to view said route and premises and examine the same; and to make report in writing, according to the provisions of the Acts of Assembly in such cases made and provided, to this court, whether the railroad asked is necessary for public or private use, as well as the damages which will be sustained by the owners of intervening lands.”</p> <p>The said Pittsburgh National Bank of Commerce is shown in the petition and on the plan to be the owner of the principal portion of the lands over which the road passes.</p> <p>April 14th, 1882, George R. Johnson filed exceptions to the petition and appointment of viewers, alleging that the land described in the petition as belonging to him, is the identical land now in the occupancy and use of petitioners under a lease from him, granting them a right of way for transporting their coal.</p> <p>April 15th, 1882, George R. Johnson filed his answer to said petition, setting forth at length the matters briefly mentioned in his said exception. On the same day the Western Pennsylvania Institution for the Instruction of the Deaf and .Dumb filed its answer, averring its incorporation as a public charitable institution, the gift and conveyance of its ground to said institution, and its necessity for the purpose of its incorporation, and denying the right of petitioners to take it for the use of said road, and showing wherein it would be injured by such appropriation.</p> <p>April 24th,. 1882, viewers were appointed in accordance with the prayer of the petition.</p> <p>October 7th, 1882, report of viewers filed in favor of the road as surveyed by petitioners and described in the petition and fixing the width as set forth therein, and assessing damages to all the intervening landowners except the Western Pennsylvania Institution for the Instruction of the Deaf and Dumb, as to which they reported that an agreement had been made between it and the petitioners in respect to the land taken,.</p> <p>October 22d, 1882, exceptions filed by George R. Johnson to the report of the viewers, to the effect, in substance, that the road reported was more than the lawful width.</p> <p>October 25th, 1882, George R. Johnson appealed from said report to the Common Pleas.</p> <p>December 31st, 1884, the Pittsburgh National Bank of Commerce filed an exception to said proceedings and the report of the viewers, and joined in the exception filed thereto by George R. Johnson, alleging that the ground appropriated by the petitioners, and reported to court by the viewers for the purposes of said road, exceeded twenty feet in width, and was in excess of the quantity which the petitioners could legally take.</p> <p>No answers or exceptions were filed by any of the landowners other than those above mentioned.</p> <p>January 8th, 1885, petition of George R. Johnson filed, stating that he had come to an agreement with the petitioners, and accordingly an order of court was made thereupon of same date, granting him leave to withdraw his appeal and exceptions.</p> <p>February 23d, 1885, the exceptions filed by the Pittsburgh National Bank of Commerce argued, and thereupon overruled and dismissed.</p> <p>The Pittsburgh National Bank of Commerce thereupon took this certiorari, assigning for error the overruling and dismissing her exceptions and the refusal of the court to quash the proceedings and vacate and set aside the report of viewers.</p>

<p>If the remedy of specific performance is possible at the commencement of a suit by a vendee, and whilst the action is pending the vendor in any way renders the remedy impracticable, the court will not compel the plaintiff to bring an action at law, but will do full justice by decreeing a recovery in damages.</p> <p>When a suit is brought for specific performance of a contract to convey land, and through the trespass of a defendant in the suit, committed after the bill has been filed, the land is deteriorated in value, it is the duty of the plaintiff, if he desire to be compensated for such deterioration, to bring the same to the notice of the court by supplemental bill, or otherwise, and if he do not do so the decree of the court for specific performance will estop him from subsequently maintaining an action at law to recover damages for the trespass.</p>

1, of Allegheny county: Of October and November Term, 1885, No. 77. This was an action in assumpsit brought by the First Reformed Presbyterian Congregation of Pittsburgh against Henry J. McCracken. The facts of the case appear from the opinion of the Court and the following abstract of the proceedings : January 28th, 1885, prcecipe, affidavit of claim, and copy of account and resolution filed by plaintiff; same day, summons case in assumpsit issued.

<p>1. Where township and borough authorities drain a public road, the drainage of which is naturally down depressions and ravines leading from the road to a river, by artificial gutters on each side of the road carrying the drainage past said ravines, which gutters are joined by a culvert and empty the whole drainage upon the land of an individual, by which his land is damaged, the township or borough is liable to him for the damage thus caused.</p> <p>2. One who prevents the drainage of a public road from flowing upon his land and turns it back from its natural course upon the road, whence it flows down gutters upon each side of the road and empties upon the land of another, who does not object, which land he subsequently purchases, imposes no servitude upon that land, and in an action by one deriving- title to said land from him for damage caused by the flowing of ■ said drainage upon the land, it is error to admit the declarations of the party first turning the water back upon the road.</p> <p>3. For a tort committed jointly the law will not apportion the guilt or responsibility of the tort-feasors, but when compensatory damages are claimed holds them all for what the most culpable ought to pay. The cost of filling up a cut is proper to be considered in measuring the damage caused by a washout.</p> <p>4. It is error to admit evidence showing the cost of conducting the water across the road from the point where die damage was done. A witness who is not shown to have knowledge of a particular work will not be permitted to testify as to the cost of doing such work.</p> <p>5. The answering of the points of the parties in the general charge is condemned as misleading to the jury, not complying with the Act of Assembly, and imposing great labor on the Supreme Court.</p>

<p>1. A married, woman may receive as a gift lier husband’s property from one purchasing it at a bona fide sheriff’s sale, subject to a reservation by the donor and use it, trade with it, purchase other goods with its proceeds and hold all against the husband’s creditors.</p> <p>2. Whether the transfer of this property is a gift, or whether it is a purchase by the married woman on her own credit, without any separate estate to support it, is a question for the jury.</p> <p>3. Winch v. James, 18 P. F. Smith, 297, and Wieman v. Anderson, 6 Wright, 311, followed.</p>

<p>The making and delivering, to the payee therein named as trustee for another, a check for safe keeping, payable six months after the death of the maker, is not sufficient to establish a gift inter vivos, nor to create a trust which equity will enforce.</p> <p>Trough’s Estate, 25 P. F. Smith, 115, followed.</p>

<p>1. The Act of 13th of May, 1871, providing that whenever the councils of the City of Pittsburgh desire to re-grade or re-pave any street, and the cost of the original grading or paving was paid by the property holders, the matter shall be referred to viewers appointed in pursuance of the act to inquire and report to councils whether the improvement is of local or general benefit, or partly local; and if they report that it is in whole or in part a local benefit, they shall designate the district to be benefited thereby, and the proportion to be paid by the district benefited, and further, to apportion the local assessments among the property of the district in proportion to the benefit supposed to be conferred by the improvement is unconstitutional, being in con-conflict with Section 1, Article IX., of the Constitution.</p> <p>2. When the adjacent property has paid the original cost of grading or paving a street in a city it has fully paid for all its local advantages, and it eamiot thereafter be charged for maintenance and repairs.</p> <p>Hammett v. Philadelphia, 15 P. P. S. 146, followed.</p>

<p>1. Any ¡malicious publication, written, printed or painted, which by words or signs tends to expose a person to contempt, ridicule, hatred or degradation of character is a libel, and the person libelled may recover damages, unless it be shown that the publication was true, or that it was justifiably made.</p> <p>2. Malice is an essential element in an action for libel, but it is malice in a special and technical sense, which exists in the absence of lawful excuse, and where there may be no spite or ill-will or disposition to injure others. Whenever a wilful and unprivileged publication is made, having the other qualities of a libel, legal malice may be inferred.</p> <p>3. Where one published words which injured the reputation of another he must be taken to have intended the consequences naturally resulting therefrom, and the question whether he acted maliciously or not should not be left to the jury unless the occasion be privileged.</p> <p>4. It is a matter of law for the court to determine whether the occasion of writing that which would otherwise be actionable repels the inference of malice, and thus constitutes it a privileged communication. If it be a privileged communication and there is no intrinsic or extrinsic evidence of malice, it is the duty of the court to direct a nonsuit for the defendant. If, however, the communication contains expressions which exceed the limits of privilege, such expressions are evidence of malice and the ease must be given to the jury.</p> <p>5. Compensation for the injury done to the plaintiff’s reputation is the legal measure of damages to whicli he is entitled in an action for libel. It is for the jury, not for the court, to determine whether the defendant shall pay exemplary damages even where there is evidence of malice. It is error for the court to charge that the defendant is liable in punitive damages if the publication is found to be libelous.</p>

<p>1. The Act of 20th of April, 1869, P. L. 82, conferring on the Court of Common Pleas of any county jurisdiction to change the name of any corporation within the county upon notice having been given to the Auditor General of the application to change tlie name applies to religious corporations, and is not repealed by the Act of 29th of April, 1874, P. L. 73.</p> <p>2. The Court of Common Pleas may change tlie name of a corporation to that of another corporation, but that change does not invest the corporation, under its new name, with any of the property, trusts or charter rights of the corporation whose name is taken.</p> <p>3. The corporation whose name is taken will be protected in all its rights, no matter under what name attacks against them may be made.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term, 1885, No. 131.</p> <p>Action of covenant to recover eighteen instalments of ground rent of $156 each, falling due on April 1st of each year from 1865 to 1882, both inclusive, brought by Charles "Wallace and others, children of Charles Wallace, deceased, against The Fourth United Presbyterian Church of Pittsburgh. The defendant pleaded non est factum, the statute of limitations, and a special plea.</p> <p>On the trial the plaintiff proved the following case: On September 19th, 1785, one Thomas Hutchinson conveyed eight acres of land, which included the land out of which the rent was claimed in the present action, to George Wallace. At that time there were two persons of that name, father and son. On April 10th, 1811, George Wallace the elder entered into an agreement of sale of the said land with one Boyle Irwin, reserving a perpetual ground rent of $165; George died in 1812, leaving a will which contained the following clause, referring to the land in question :</p> <p>“And be it understood that I purchased an out-lot in the Allegheny bottom from Thomas Hutchins, and the deed is in the name of my son George ; and in case George should claim said lot in his own right, in that case my executor, hereinafter mentioned, shall have it valued, and if he chooses to receive it at such valuation he may, but in case such valuation shall be greater than his part, he must pay to the other'surviving legatees the overplus to make their share alike.”</p> <p>Partition was made of the real estate of the decedent; the sheriff’s return, filed November 29th, 1814, awarded the eight acres, above mentioned, to Charles Wallace, reciting the fact that it was leased to Boyle Irwin at the annual rent of $165. To the distribution of the realty of the decedent, George Wallace and the other heirs agreed in writing, and the partition was confirmed in open court. Previous to the partition George Wallace the younger and wife had, on July 25th, 1814, executed a ground rent deed for the eight acres to Boyle Irwin, reserving the same rent. George Wallace the younger died in 1826, and by his will bequeathed everything of which he died possessed, the personalty absolutely, and his real estate for life, to his wife Jane, who subsequently married the Rev. Zera Coston. During George’s life he gave orders to Charles for the rents, upon the presentation of which orders Charles collected the rents. After George’s death, as testified by his widow, Charles got no more rents, but George’s widow received the same regularly up to 1864. On January 17th, 1831, Jane Wallace executed a deed of trust, reciting the indenture of July 25th, 1814, and that the amount of rent therein reserved had been reduced by payments to $156, and conveying the said ground rent to Nathaniel Holmes, in fee, in trust to pay over the rents to the grantor during her life, on her death to Ann Gibson, mother of the grantor, during her life, if Ann should survive the grantor, but if she should not survive her then upon the death of the said grantor, to assign and transfer the said ground rent to the lawful children of Charles Wallace. Jane Wallace died in 1864, her mother having died before her.</p> <p>Irwin entered on the land covered by the lease, and laid it out in town lots. On January 8th, 1838, one of these lots was conveyed to the trustees of the Third Associate Reformed Church. The agreement of sale described this lot as lot No. 1 in Irwin’s Plan, fronting 78 feet 1-| inches on Penn Avenue, Pittsburgh, and extending .in depth one hundred feet; the consideration recited was $4,000, of which $1,400 was’ to be paid in instalments, and the remaining $2,600 was to remain in the hands of the trustees until the Wallace ground rent was purchased or discharged from the whole eight acres, and in the meantime in lieu of interest on the $2,600, the trustees were to pay the ground rent. The trustees entered, built a church, and paid off the $1,400, according to the agreement, this last instalment of said sum being paid June 29th, 1850 ; whereupon Irwin and wife by deed of perpetual lease conveyed the said lot to the Third Associate Reformed Church, reserving a rent of $156 per annum, the deed recited that it was made in pursuance of the agreement of 1838, and rent covered no consideration other than the payment of the ground rent. In 1858 one Morrison obtained a judgment against the Third Associate Reformed Church, and had an execution issued thereupon, under which the said lot No. 1 was in 1860 sold to A. M. Brown, who received a deed from the sheriff therefor. In the same year Brown conveyed the said lot to the Second Reformed Presbyterian Congregation of Pittsburgh, and by deed dated July 22d, 1862, the said congregation conveyed the lot to the Fourth United Presbyterian Church, the defendant; the deed recited that the property was conveyed, “ subject to ground rent.”</p> <p>The plaintiffs having closed, the court, on motion of the defendant, entered a compulsory nonsuit, which the court in banc subsequently refused to set aside, whereupon the plaintiffs took this writ.</p>

<p>Error to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term, 1885, No. 130.</p> <p>This was an action of debt brought 25th September, 1883, by B. J. McGrann against the Pittsburgh and Lake Erie Railroad Company to recover for extra work done and materials furnished in the construction of the defendant’s railroad.</p> <p>On the trial before Ewing, P. J., the following facts appeared from the testimony of the plaintiff.</p> <p>The defendant was incorporated to construct a railroad from Birmingham Pa., to Hazleton,Ohio, a distance of about sixty-eight miles.</p> <p>After some negotiations between the parties a contract was finally entered into between them on the 26th of September, 1877.</p> <p>The duties of the respective parties under the contract were, in brief, as follows:</p> <p>. The plaintiff was to make the necessary surveys and fix the location. He was, to that end, to furnish engineering service for such survey and location, and for the construction of the road, as well as for the preparation of necessary maps, profiles and plans. His engineers were to stake out and indicate the work to be done, and instruct sub-contractors, laborers and workmen as to the means for its accomplishment.</p> <p>The defendant was to appoint a chief engineer to examine the plaintiff’s maps, profiles and plans, and it’ was his duty to approve them when in accordance with the specifications. It was his duty also, to inspect and examine the work during its progress, and to approve the same when it conformed to the contract requirements. When the plaintiff selected a route which agreed with that prescribed by the agreement, in the named particulars of grade and curvature, it thereupon became the duty of the defendant to furnish him rights of way, so that the building of the railroad thereon might be promptly proceeded with.</p> <p>Further the defendant agreed to pay the plaintiff the sum of $2,500,000, $1,115,000 in cash, $1,115,000 in bonds of the company and $200,000 in stock of the company. Fifteen per cent, of the amount found due by monthly estimates by the defendant’s engineer was to be retained until the final completion of the work. The contract further provided: “ And upon the final completion of the work, at the request of the party of the first part, the said chief engineer shall examine all the work done, and if he finds the same completed in accordance with this contract and specifications, he shall so certify to the parties hereto, and thereupon the full amount of ($2,500,000) two million five hundred thousand dollars, less such former payments as may have been made on this account, shall be due and payable to the party of the first part by the party of the second part, and shall be so paid upon his giving a release from all further claims arising out'of this contract.”</p> <p>The plaintiff produced testimony to show that he was not permitted to build the road in accordance with the terms of the contract between him and the defendants. That the defendants to avoid paying large land damages changed the location of the road from that fixed by him, the plaintiff claimed that the additional cost to him resulting from this change was $131,593.30. The plaintiff claimed that the additional cost to him from a change of location of the bridge across the Ohio river after he had the bridge in the place fixed by himself under the contract partly manufactured was about $30,000. The change of the kind of masonry from that specified by the contract was the plaintiff claimed another great additional cost. The expense of maintaining these portions of the road after completion and which were used by the defendants from the time of completion until the whole road was completed and of repairing them when destroyed by floods and extraordinary storms aggregated some $75.000.</p> <p>The plaintiff presented an itemized statement of his claim under each of the following extras:</p> <p>1. Extra work resulting from changes between Jones & Laughlin’s and Chartiers.</p> <p>2. Work done on original location from Chartiers to Neville Island, (line graded and then abandoned by company’s direction.)</p> <p>3. Borrow pit at Lashell, extra cost of work.</p> <p>4. Extra work, Stoup’s Ferry to Shousetown.</p> <p>5. Work on abandoned location through Telford’s.</p> <p>6. Work done on abandoned culvert.</p> <p>.7. Changes in character of masonry in structures at stone culverts when extended.</p> <p>8. Extra cost for erection of Ohio R. R. bridge and viaduct, resulting from change at Beaver side.</p> <p>9. Beaver road crossing — overhead substituted for grade.</p> <p>10. Material hauled away from Sharon and Fallston road to grade street.</p> <p>11. Fallston road bridge, overhead substituted for grade crossing.</p> <p>12. Change at Fort Wayne crossing at Beaver Falls.</p> <p>13. Extra work at Clinton, grading and masonry, outside line, resulting from change of line.</p> <p>14. Wampum bridge changed to double track.</p> <p>15. Bridge at Robinson & McClelland’s, rendered necessary by arbitrary location.</p> <p>16. Extra work at Lowell from change to double track.</p> <p>17. Maintenance and repair of railroad from Beaver Falls to Hazelton from September 15th, when company took possession, to December 15th, three months, at $10,000.</p> <p>18. Maintenance and repair of railroad from Chartiers Creek to Beaver Falls from November 1st, date when company took possession, till February, 1879, three months, at $15,000.</p> <p>19. Excess of value of work on account of changes in character of masonry.</p> <p>20. Change from iron to steel in track, lock-nuts, sidings and spring frogs.</p> <p>The whole amount of exfras claimed for was $453,872.23.</p> <p>In January, 1879, the road having been, in the judgment of the engineers, completed, a final tour of inspection was made. Mr. Wimmer, the company’s chief engineer, accompanied by his assistant, Mr. Ackenheil; Mr. McGrann, the contractor, with his chief engineer, Mr. Saylor, made a trip over the entire road. Returning to Rochester on January 31st, the chief engineer expressed himself as satisfied with the road. Thereupon he told the contractor that he might discharge his force.</p> <p>Wimmer, the chief engineer of the company, gave the plaintiff the following certificate:</p> <p>Office of the Chief Engineer P. & L. E. R. R. )</p> <p>Pittsburgh, February 5th, 1879. j</p> <p>After due and careful examination of the Pittsburgh & Lake Erie railroad, on notice of the contractor, B. J. McGrann, of its completion, I hereby certify'- that said Pittsburgh & Lake Erie railroad is completed in accordance with the terms of the contract and specifications, and that the same is now ready for the ordinary freight and passenger traffic of the standard railroads, with the reserve, however, that seventy thousand dollars’ worth of work is yet to be done in order to cover all points of the contract and specifications, to be subtracted from the bills of extra work claimed by the contractor and submitted to me. Sebastian Wimmer.</p> <p>To B. J. McGrann, Contractor of P. & L. E. R. R.</p> <p>On the next day the plaintiff presented his claim to the board of directors of the defendant company. They refused anything for extras. He thereupon stated that his claim for extras was only that which had already been examined and approved by the engineers, that he asked for'nothing more.</p> <p>To this the reply was made, “ the report of the engineer is that you are not entitled to any extra work.” When he asserted the contrary, and that he had the engineer’s certificate, the reply was made: “ Oh! but he has been here since and reported that you are not entitled to any extra work.” They also informed him that if he did not like the contract price he might retain the road, and he would be held responsible for anything that might happen it. He replied he was compelled to take it. He accordingly'' took it, and gave the following-receipt :</p> <p>“Received, Pittsburgh, Pa., February 6th, 1879, of the Pittsburgh & Lake Erie Railroad Company, one hundred and eighty-three thousand one hundred and ninety- and 56-100 dollars ($183,190.56) being as follows: one hundred thousand dollars in the capital stock of the company, fifty thousand dollars in mortgage bonds of the company and thirty-three thousand one hundred and ninety and 56-100 dollars in cash, being in full of all claims and demands of any and every kind whatever by me on account of the construction of railroad for said railroad company, and I hereby deliver up possession, custody and control of said railroad to the said railroad company. And said railroad company by its president hereby accepts said railroad as completed in accordance with said contract.” (Signed) B. J. McGrann.</p> <p>Attest: J. H. Me Creery.</p> <p>(Signed)</p> <p>Pittsburgh & Lake Erie Railroad Company,</p> <p>By Jas. I. Bennett, President.</p> <p>The plaintiff testified that he was induced to take the contract price, and give the foregoing receipt by the belief that what the directors stated to him, as the statement of the chief engineer, was true. That this statement was untrue was testified to by several witnesses.</p> <p>Charles Davis, an engineer of the defendant, being on the stand, plaintiffs counsel propose to ask the witness this question : “ Whether or not the masonry work done by the plaintiff on defendant company’s road was of a character substantially the same as that provided for in the contract which plaintiff refused to enter into at or about the time that this contract was made, for the reason, among others, that he was unwilling to undertake such masonry at the price named?”</p> <p>Objected to as irrelevant. Objection sustained and bill sealed for plaintiff. (First assignment of error.)</p> <p>Francis H. Saylor, an engineer of the plaintiff, being on the stand, was asked: You may state whether or not the masonry, as actually constructed by the contractor, was substantially of-the same character as that described in Mr. Davis’ proposed contract. ,</p> <p>Objected to as irrelevant and incompetent. Objection sustained and bill sealed for plaintiff. (Second assignment of error.)</p> <p>Plaintiff’s counsel offer to show that on the 28th of January, 1879, prior to the final inspection of the road on the 31st of January, by the chief engineer, the chief engineer of the contractor, met the principal assistant engineer of the company who had been detailed by the chief engineer for that purpose, to endeavor to agree with him as to the proper amount, and proper cost of extra work done in.the execution of the contract, that certain figures were agreed upon between these parties at that time, and what those figures were ; that they were subsequently submitted to the chief engineer, and that subsequent to that time the chief engineer gave to the contractor a certificate, in which he recognized the bill of extra work claimed by the contractor and submitted to him — to be followed by the certificate of the engineer referred to.</p> <p>The purpose is to show a liability on the part of the company for extra work, and the amount of that liability. Objected to as incompetent and irrelevant. Objection sustained and bill sealed. (Third assignment of error.)</p> <p>Plaintiff’s counsel offer to show that the contractor called upon the chief engineer of the company for an estimate on account of his extra work, and that the chief engineer then, for the purpose of preparing such an estimate, brought about a meeting between his subordinate, his principal assistant engineer, whom he detailed for the purpose, and the chief engineer of the contractor, in order to arrive at the items of the contractor’s claim for extras; that such meeting was had; that the items'were arrived at, and to show what those items were; to be followed by evidence that they were submitted to the chief engineer.</p> <p>Conversation between the witness and engineer objected to. Objection sustained and bill sealed for the plaintiff. (Fourth assignment of error.)</p> <p>Counsel for plaintiff proposes to show by the witness on the stand: *</p> <p>“That previous to the meeting, as to which the witness has testified, [meeting for settlement] and covering the whole period of his work under the contract, the coarse of the chief engineer in making and furnishing estimates to the contractor had been influenced (to the delay and damage of the contractor) by certain of the board of directors for their own purposes.</p> <p>“ That at the time of the settlement, the contractor was largely indebted to Dr. Hostetter, one of the board, for money advanced to the contractor to enable him to carry on his work, at a time when his monthly payments had been delayed.</p> <p>“That the contractor was without means, save as they should be derived from a settlement with the company, to relieve himself of this and of other then pressing indebtedness.</p> <p>“ That relying on the authority of the chief engineer, given January 31st, 1879, he had dismissed his entire force, and Avas unable to care for said road.</p> <p>“That he had during the progress of the Avork under the contract, consulted James E.'Gowan, Esq., a member of tbe bar of Philadelphia, and received from him the advice that under the contract, he was absolutely in the hands of the engineer, and bound by his decision on any and every matter in connection with, or arising out of the work undertaken by him, the said contractor. That when the board of directors announced to him that the chief engineer had decided that he was not entitled to any extras, he believed them, and believed that the chief engineer had again made himself subservient to the board, and notwithstanding his certificate of the day before, decided against him (the contractor), and he also believed that such decision deprived him of any legal ground to recover his extras. That he was induced to sign a receipt in full, receiving only what was actually due him under the contract, by the representation made to him as to the engineer’s decision, which representation was untrue, entertaining the aforesaid belief as to the legal effect of such decision, coupled with the threat of the board, that if he did not sign such receipt, he might keep the road, and be responsible for its maintenance — and this made at a time when it was out of his power to keep said road — and when he was in actual and pressing need of money.”</p> <p>“ To show the combination of circumstances under which the contractor settled with the defendant, and what induced him to do so; and to show such fraud, misrepresentation and duress as invalidates in law the settlement referred to.”</p> <p>Counsel for the defendant object to this offer as a whole. The offer as a whole objected to as-irrelevant and incompetent, the several portions were also specifically objected to. Objection sustained and bill sealed for the plaintiff. (Fifth assignment of error.)</p> <p>Counsel for plaintiff proposed to show by the witness on the stand:</p> <p>That previous to the time of a settlement with the defendant company, he had been advised by James E. Gowan, Esq., a member of the bar of Philadelphia, that the chief engineer of defendant company’s decision as to any matter connected with the work was binding and conclusive on him.</p> <p>That he believed, on the day of meeting with the board and when a settlement was made, that if the engineer had decided that he was not entitled to extras, he could not maintain any action therefor; that he believed from the representation of the board of directors that the' chief engineer had decided against him; that this representation was untrue; that if he had not believed it to be true, and that the engineer’s decision bound him, he would not have signed any settlement short of getting his extras.</p> <p>For the purpose of showing such mistake and fraud as relieves the plaintiff from the effect of any settlement made.</p> <p>Objected to as incompetent and irrelevant. Objection sustained, and bill sealed for plaintiff. (Sixth assignment of error.)</p> <p>The plaintiff being on the stand as a witness, and under examination with respect to the receipt given by him to the defendant company, plaintiff’s counsel now propose to ask the witness what induced him to sign the receipt.</p> <p>Objected to because that it is to be gathered from the facts and circumstances as they happened at the time, and not from what the witness now states to have been his private motive iii signing the receipt, and as irrelevant and incompetent. Objection sustained, and bill sealed for plaintiff. (Seventh assignment of error.)</p> <p>Defendant’s counsel move to strike out, first, all thé evidence under offer of financial embarrassment, on the ground that the proof as made did not come up to the offer as made in this, among other things, that plaintiff’s counsel did not bring home knowledge to the board of witness’ embarrassed condition at the time of the settlement; and second, under the offer the plaintiff was permitted to ask the witness question as follows:</p> <p>Q. You can state whether or not this need of money on your part and inability to care for the road, and threat by the board, had any influence on you as to signing the receipt?</p> <p>A. It had.</p> <p>Motion granted and the evidence stricken out, and bill sealed for plaintiff. (Eighth assignment of error.)</p> <p>Defendant’s counsel move the court to strike out that portion of the plaintiff’s testimony under the following offer made:</p> <p>Counsel for plaintiff propose to show by the witness on the stand that he believed, when he signed'the receipt of February 6th, 1879, the law to be that if the defendant company’s engineers had decided that he was not entitled to compensation for extra work, he (the contractor) could not recover therefor ; that this belief influenced him in signing said receipt, for the purpose of showing the receipt was signed in an honest mistake as to the legal rights of the plaintiff. And the testimony in answer to the following question: “Just answer this question alone: You may state whether or not, at the time this receipt was signéd, you believed the - decision of the chief engineer as to extras to be binding on you.”</p> <p>And the testimony in .answer to the following question : “ Yon may state whether or not that belief influenced you in signing the receipt? ”</p> <p>Motion granted, and the evidence stricken out, and bill sealed for the plaintiff. (Ninth assignment of error.)</p> <p>The court, on motion of defendant’s counsel for compulsorynonsuit, entered the following judgment:</p> <p>The motion for peremptory nonsuit is granted, and judgment of nonsuit is hereby entered with leave to the plaintiff to move the court in banc to take off the same. (Tenth assignment of error.)</p> <p>The court filed the following opinion on the motion to take off the compulsory nonsuit:</p> <p>The contract under which the plaintiff built the Pittsburgh and Lake Erie Railroad was to build and deliver the road as a whole, finished in accordance with the specifications.</p> <p>The chief engineer of the defendant company was made sole arbiter as to when it had been so finished.. The contract in itself does not appear to contemplate any extras or anything to be done by the contractor outside of the specifications. It gave the chief engineer no power to order extras, nor to pass on the value thereof, should any be ordered by the company.</p> <p>The plaintiff could not recover his final payment on his contract without producing the certificate of the chief engineer that the entire work had been completed in accordance with the contract, or showing something that would be the legal equivalent therefor.</p> <p>The exigencies of the plaintiff’s case compelled him to give in evidence the settlement of the 6th-of February, 1879, as also the peculiar certificate of the chief engineer, of February 5th, 1879.</p> <p>The plaintiff avers that that settlement was obtained from him by fraud on part of the board of directors of the company in this, to wit: that the president' of the board asserted that the chief engineer had decided that he, McGrann, was not entitled to anything for extras, and that -he, believing the assertion, made the compromise and settlement in question.</p> <p>As we have already said, the chief engineer had no power to decide that question as arbiter. The evidence shows that the board declared to McGrann, who was asserting that the chief engineer had decided that he was entitled to extras, that he had no power to decide the question.</p> <p>The chief engineer was an important witness in case of a contest, but nothing more.</p> <p>Mr. McGrann had in his possession the written certificate of- February 5th, virtually asserting that he, McGrann, was entitled to at least $70,000 for extras, a paper which would have been a pretty conclusive answer to the assertion as to his alleged after decision.</p> <p>Mr. McGrann’s office was in the same building and close to that of the chief engineer, and both were in the building in which the settlement was made. The testimony shows that on, the same evening Mr. McGrann met the chief engineer. They appear to' have been on intimate terms.</p> <p>The suit was not brought until nearly six years had elapsed since the settlement. When and where, and how the plaintiff learned of the imposition which he alleged was practiced upon him, does not appear. How he could and should have learned of it with reasonable diligence, is easily seen.</p> <p>At the meeting for settlement, the plaintiff not only had not the certificate of the chief engineer that the road was completed according to contract, but his certificate declared (and decided) that there remained §70,000 worth of work to be done to complete the road according to contract.</p> <p>The defendant company was not bound to take the road off the contractor’s hands until this work was completed, nor was he until that time entitled to his pay.</p> <p>In making the settlement he received large and valuable concessions from the company. He was relieved of the responsibility of keeping up the road and from the cost of finishing it, and he received a large amount in money, in bonds and in the stock of the company. No offer has been made to restore these, or to put the company in the position it was at the time of settlement.</p> <p>At the close of plaintiff’s testimony we were of the opinion that the evidence did not warrant the court in submitting the case to the jury. Further consideration has not changed our conclusion.</p> <p>And now, July 1st, 1885, upon consideration the court in banc refuses to take off the compulsory nonsuit heretofore entered. (Eleventh assignment of error.)</p> <p>Thereupon the plaintiff took this writ, filing the foregoing assignments of error.</p>

<p>1. Giving a definite extension of time to the maker of a note upon consideration of interest paid in advance by Mm without the assent of an indorser will release him from liability.</p> <p>2. The burden of showing that the indorser assented to such extension of time is on the party seeking to charge him.</p> <p>3. An indorser cannot be held liable if a bank upon the promise of its president to an indorser to use his influence to secure for the maker of a note forbearance or temporary indulgence on condition that the note be redeemed as fast as possible, gives to the maker defimte extension of time without the assent of the indorser.</p>

1 of Allegheny county: Of October and November Term, 1885, No. 133. Assumpsit, brought by William Varnum against A. W. Oxnard upon a promissory note drawn by Geo. W. Scranage to the order of A. W. Oxnard, and by him indorsed to G. W. DeCamp, who in turn indorsed it to the plaintiff, William Varnum. Declaration by second indorsee against first indorser. Pleas: 1. No presentment. 2.

<p>1. The legislative grant of the franchise of a ferry gives only the right to maintain a ferry and to take tolls; it does not give the right to make a landing upon the property of a private person or upon a highway.</p> <p>2. When through the construction of a railroad bridge the travel upon a public highway is obstructed, such obstruction is a public nuisance and the injury to the owner of a ferry whose landing is at the terminus of said highway can not maintain a private action for such obstruction, his injury, though greater in degree, being of the same character as that suffered by the public at large.</p> <p>3. A. owned a ferry and held a leasehold in the landing thereof, the defendant constructed a railroad so as to materially interfere with the landing of boats. Said, that the measure of damages for which the defendant was liable was the difference between the value of the leasehold for the purpose to which it was applied, until the end of the term under ordinary circumstances, and its value for the same time as affected by the construction of the railroad, and that it was error to allow the recovery of damages for the depreciation of the value of the franchise unconnected with the leasehold</p>

<p>A married woman having a separate estate may purchase personal properly on credit, and if in so doing her husband who has no creditors, and without intent to defraud subsequent creditors, gives his notes to the vendor for the unpaid purchase money, and she subsequently pays the unpaid purchase money secured by her husband’s notes out of the profits and earnings of the business, the purchase is valid as against her husband’s creditors.</p>

<p>1. A valid reservation of a question of law on the trial of an issue of fact must be a question of law solely. The facts must be found by the jury or agreed upon by the parties.</p> <p>2. To authorize the court to enter judgment non obstante veredicto the record must show the point and the facts on which it arises.</p> <p>3. The specific reservation should be made a matter of record at the time of the reservation, the omission to do so is not cured by a statement of the reservation in the opinion of the court filed on entering judgment. The opinion of the court is no part of the record.</p>

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term, 1885, No. 201.</p> <p>Appeal of Henry Springer from the final decree of said court ordering, adjudging and decreeing that Henry Springer pay to Nancy Springer, the petitioner, $484, being the cash value of Nancy Springer’s share of production for two years of farm, devised by will of decedent to Nancy Springer, less $50 credit and costs.</p> <p>The following are the facts found by the court, Hawkins, P. J.</p> <p>This is a proceeding instituted on behalf of Mrs. Nancy Springer, widow, to enforce certain alleged charges on farms devised to Joseph Springer, Jr., Henry Springer, William A. Springer and John Springer. The respondents demurred, their demurrers were overruled, and thereupon answer filed, and a large amount of testimony was taken.</p> <p>The prima facie case made by the evidence of petitioner ; the defence made by respondents; the rebutting evidence adduced by the petitioner, and the findings of fact by the court will be briefly stated :</p> <p>Joseph Springer died in 1861, testate, seized of about 1,000 acres of land, and leaving to survive him a widow, Nancy Springer, the present petitioner, and children, viz.: John, Nancy Jane, afterward married to Donaldson, Henry, Joseph, George, Horace, an idiot, Ethaline Morrow, Mary A. Bailey, and William A. Springer, a minor.</p> <p>By his will he made the following among other provisions :</p> <p>1. To his son, John, he gave a farm containing 165 acres, excepting thereout the orchard field, containing about 5 acres, for the use of his widow during life; and</p> <p>.2. To Henry, a farm containing about 175 acres; and</p> <p>3. To Joseph, a farm containing about 130 acres, with this provision : “ Further, I will that mv two sons, Henry and Joseph, pay to my wife, delivered in the bushel, one third of all the grain they raise on their farms during her lifetime, also, one third the fruit,” and the devise to Joseph was also made subject to the payment of $25 by him to his sister, Mrs. Bailey.</p> <p>The foregoing constitute the only provisions made by testator for his widow; it is not claimed that she has had any other estate. The petitioner is now 80 years of age, feeble in body, and with mind impaired. She charges: •</p> <p>That her son, John, in 1861, took and has since kept exclusive possession and appropriated to his own use the profits and yield of the orchard and orchard field, and that she estimates the value of said yield at $100 per annum.</p> <p>That neither her sons Henry nor Joseph had delivered nor tendered her share of the grain and fruit according to the terms of the will, nor the equivalent -thereof, although often requested, and that she estimates the value of said shares at $250 each.</p> <p>1. The claim against John Springer was practically abandoned as not being within-the jurisdiction of this court.</p> <p>2. The evidence shows that Henry raised on an average on the farm devised to him — 11 acres of corn, yield per acre 100 bushels, worth per bushel 65 cts.; 11 acres of oats, yield per acre 35 bushels, worth per bushel 50 cts.; 15 acres of wheat, yield per acre 16 bushels, worth per bushel $1.05 ; making a total per annum of $1,159.50, one third of which, as due Mrs. Springei-, would be $386.50.</p> <p>The defences made by Henry to his mother’s claim are that by various settlements prior to 1883 he had paid her, in full, in cash and grain, and that by written agreement made in 1883 was thereafter to receive from him the sum of $25 per annum in lieu of the grain and fruit which the will had required should be given her.</p> <p>The evidence shows that he paid his mother December 19th, 1871, $100 ; October 10th, 1874, $100 ; November 29th, 1875, $33 ; March 18th, .1882, $30 ; and April 18th, 1883, $50 ; total $313. These payments appear in certain receipts, which all purport to be “in fool” to date. There was also shown'to have been delivered ten bushels of wheat in 1871. There does not appear to have been any fruit raised on the farm.</p> <p>In support of the receipts Henry called his brothers John, Joseph, George and William, as witnesses to the fact of execution, or to the genuineness of the signatures. William and Joseph seemed to be very willing witnesses, and when they testified to the fact of execution, said that the receipts had been twice read to and then read by their mother. In some cases Joseph undertook to testify to signature, but it afterward turned out that he couldn’t read writing.</p> <p>Mrs. Springer denied some of the signatures, but her testimony was contradictory. She was very positive that she had never signed any receipt with the knowledge that it was in full.</p> <p>There seems to be little reason to doubt that the signatures are genuine ; and although very unsatisfactory in respect of the later years, the weight of evidence seemed to establish the fact, that Mrs. Springer signed the receipts voluntarily and with knowledge of their contents as being in full.</p> <p>The written agreement above referred to as having been made liquidating the cash value of the charge at $25 per annum was made on the 27th day of February, 1883. It was shown to have been read to her in an ordinary tone of voice. Mrs. Springer testifies that it is not in accordance with what she understood the agreement to be; that she supposed she ■was signing an agreement for one year only, by which Henry was to pay her in cash $25 and a bill for necessaries which James Bigham had, for $50. Her story is corroborated by the fact that, in April following, on an attachment execution issued by James Bigham on which Henry was summoned as garnishee, he admitted that he owed his mother $50 and paid accordingly. There is no doubt that the agreement was made at the earnest solicitation of Henry. He made frequent visits to his mother previously with a view to get it. His health was poor and his crops had partially failed.</p> <p>The value of Mrs. Springer’s share of the grain raised by Henry is, as above stated, per annum, . $267.33</p> <p>And the value as per this agreement, . . . 25.00</p> <p>The weight of evidence establishes the fact that the agreement as written was in the cii’cumstances unconscionable, and was not understood by Mrs. Springer when executed.</p> <p>The court accordingly entered the decree above recited, filing the following opinion :</p> <p>1. As the will of Joseph Springer, deceased, imposed'no duty on his son, John,,in respect of this petitioner, Nancy Springer, this court has no jurisdiction of the claim made against him. Her claim, if she has any, is one of contract.</p> <p>2. Under the evidence, the interest which Mrs. Springer has in her son Joseph’s farm is that of common law dower, and jurisdiction of that also belongs to another court: Bradfords v. Kent, 43 Pa. St., 474.</p> <p>3. But the interest which she has in the farms of Henrv and Wm. A. Springer, arises under the will of her deceased husband; is a charge upon them: Buchanan». Duncan, 40 Pa. St., 82; and consequently within the jurisdiction of this court.</p> <p>The principle upon which the decision on the merits of these claims should be rested, can be best stated in the language of Mr. Justice Story: 1 Eq. Jur. § 331.....“ The proper jurisdiction of courts of equity is to make every one act according to conscience, and not to suffer undue advantage to be taken of the strict forms of law, or of-positive rule. Hence it is that even if there be no' proof of fraud or imposition, yet if upon the whole circumstances, the contract appears to be grossly against conscience, or grossly unreasonable and oppressive, courts of-equity will sometimes interfere and grant relief, although they certainly are very cautious of interfering,' unless upon strong circumstances. But the mere fact that the bargain is a very hard or unreasonable one, is not generally sufficient, per se, to induce these courts to interfere, and indeed it will be found that there are very few cases, not infected with positive or actual fraud in which they do interfere except where the parties stand in some very peculiar predicament, and in some sort under the protection of the law from age, or character, or relationship.”</p> <p>If this principle be applied here, the agreements relied on here by Henry and Wm. A. Springer must be disregarded. Upon the whole circumstances they are grossly against conscience. The petitioner against whom they were pleaded, was impaired in body and mind by reason of age when they were executed; they took away from her a competence which was her sole reliance ; and left her insufficient to supply common necessaries of life. Her relationship to these respondents imposed upon them a legal as well as a natural duty to maintain her in comfort; and public policy will not permit that they .shift their burden upon the poor rates.</p> <p>Mrs. Springer therefore stands in a “ very peculiar predicament and in some sort under the protection of the law from age,” as well as from “ relationship ” to these respondents, and is entitled to relief.</p> <p>Henry Springer took this appeal assigning for error inter alia the decree of the court above set out.</p>

<p>1. The Supreme Court does not have jurisdiction to review the judgments or decrees of the Court of Common Pleas in contested elections of Senators or Representatives. „ .</p> <p>2. The power conferred on the respective houses of the Legislature by Art. n., Sec. 9 of the Constitution of the state, viz.: that “ each house shall judge of the election and qualification of its members,” is not taken away by Art. VILI., Sec. 17, of the said Constitution, which provides that, “ the trial and determination of contested elections..... of all public officers.....shall be by the courts of law, or by one or more of the law judges thereof.” The purpose of this section is merely to provide a method for procuring and presenting to the respective house the evidence necessary for an intelligent decision, and to ' secure early action.</p> <p>3. The Act of 19th May, 1874, provides a complete method for speedily determining which candidate received the greatest number of legal votes and is entitled to the certificate oí election, hut it does not authorize the court to enter any judgments or make any decree declaring which claimant is entitled to the office.</p> <p>4. One aggrieved by the decision of the court in his case must present his petition to the proper house. If the correctness of the findings of the court he questioned, the whole case is sent to the proper committee for hearing, which is not restrained as to what evidence it shall hear and consider, nor from what source it shall be obtained; the committee then reports “ for the consideration of the house.” •</p>

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term, 1885, No. 211.</p> <p>Appeal of Mary A. Harper from the decree of the Orphans’ Court of Allegheny Comity, made October 3d, 1885, dismissing her exceptions to the decree of distribution made bv said court on July 15th, 1885, in the matter of the estate of James H. Brown, deceased.</p> <p>James H. Brown, who died in 1883, by his will, made the following bequest of all his bonds and stocks: “I also give and bequeath all stocks and bonds to said Mary A. Harper. The dividends derived from same to be paid to her by J. Morrow Arnold, whom I name as trustee for said bonds and stocks as said dividends may accrue from time to time.” He also bequeathed to said Mary A. Harper ten thousand dollars ($10,000) in cash. His said will algo contained a bequest of five thousand dollars ($5,000) to J. Morrow Arnold for his services as trustee for Mary A. Harper under the bequest of bonds and stocks previously mentioned.</p> <p>By decree of distribution made January 31st, 1884, upon the audit of the executor’s first account, the bond and stocks of said decedent were awarded to J. Morrow Arnold, as trustee for Mary A. Harper, the present appellant. Said Arnold has retained possession of the same from the time of said decree and still holds possession of the same.</p> <p>By said decree thirty-five hundred dollars ($3,500) in cash was awarded to appellant, on account of her said legacy of ten thousand dollars ($10,000,) leaving a balance of sixty-five hundred dollars ($6,500) still due to her thereon.</p> <p>By said decree nothing was awarded to J. Morrow Arnold, on account of his said legacy of five thousand dollars.</p> <p>By decree of distribution, made upon the audit of the executor's second and final account, the following distribution was made of the balance of $6,538.42 in the hands of the executors for distribution. Said balance being insufficient to pay the legacy of Arnold and the unpaid balance of Mary A. Harper’s legacy, the court awarded the full amount of Arnold’s legacy to him and $1,475.47 to appellant.</p> <p>By this distribution the court gave preference to Arnold’s leg-acy on the ground that said legacy was based upon a valuable consideration, to-wit, his services as trustee and therefore entitled to preference over Mary A. Harper’s legacy, which was a mere gratuity. Appellant contended that distribution should have been made to her for the full amount of the unpaid portion of her legacy, for which said balance for distribution was sufficient.</p> <p>That Morrow Arnold was not entitled to said legacy because, had a proper decree of distribution been made at the previous audit on January 31st, 1884, said bonds and stocks would not have been awarded to him and there would have been no services to perform. That said trust was a dry trust, and sa.id bonds and stocks should have been properly awarded to appellant. That, therefore, the condition precedent annexed to his legacy of $5,000, that of being trustee, having failed, his legacy likewise fails. And, further, that if said Arnold was entitled to participate in said distribution it was pro rata only wi(h other general legatees and .that his legacy was not entitled to preference nor exempt from abatement. To this affect appellant filed exceptions to said second decree of distribution which were dismissed by the court. Said dismissal of exceptions constitutes the assignment of error.</p> <p>Oyer, J. in making, distribution upon audit of the executors final account filed an opinion which was inter alia as follows :</p> <p>1st. The testator having directed that the legacy.to Mrs. Harper should be paid within six months after his death, it is contended that it is entitled to priority in right of payment to other general legacies. It is evident, however, that this direction was not made in apprehension of any deficiency of assets but merely for the purpose of giving'priority in time of payment, and it is well settled that on intent to give such priority does not give a legacy preference in right of payment. Penn’a Co.’s Appeal, 16 W. N. C. 170. It follows, therefore, that this legacy is not to be preferred.</p> <p>2d. Where a general legacy is founded upon a valuable consideration, it is entitled to preference in payment to other general legacies, which are mere bounties: University of Pa.’s Appeal, 97 Pa. St. 187; Classman's Estate, 38 Leg. Int. 261, and cases there cited.</p> <p>The legacy to Mrs. Harper is a mere bounty, while that to J. Morrow Arnold is founded upon a consideration, to-wit: His services as trustee for her; as, by accepting the trust, he has contracted to perform its duties for the compensation fixed by the testator. But the cases' in which the above rule prevails, appear to be where the consideration or the legacy inures to the benefit of the testator’s estate, as a legacy to a widow in lieu of dower. Here, however, the consideration for the legacy to Arnold does not enure to the benefit of the testator’s estate, but to Mrs. Harper as specific legatee, and if the contest were between him and general legatees not benefited by his legacy, it may be he would not be entitled to preference to them. But as it is between him and a legatee benefited by the consideration upon which his legacy is founded,-it seems that the rule applies, and that his legacy is to be preferred.</p> <p>It is true that the amount may be excessive compensation, that the services now rendered are not of much value, and that the trustee may not live to fully execute the trust. But, as the legacy is not conditioned upon him living to execute it, and payment is not postponed until the termination of the trust, the presumption is that the contingency of the death of the trustee before its termination, and consequent inability to exeeute it, were considered by the testator when lie fixed the compensation. The amount of this legacy, then, is the compensation fixed by the testator'for the trustee’s services, notwithstanding these contingencies. And Mrs. Harper being a mere recipient of his bounty, and benefited by the legacy, is not in a position to object to it, and has no equities requiring it to abate. Moreover, if the services which may be rendered are worth more, the trustee could not secure additional compensation. It seems clear, therefore, that this legacy is entitled to preference in payment to Mrs. Harper’s;</p> <p>In dismissing the exceptions to the adjudication of audit, Hawkins, P. J., filed the following opinion:</p> <p>In dismissing these exceptions it is proper that the court should notice briefly the arguments upon which exceptant relied.</p> <p>1st. It was contended that the will of Jas. H. Brown deceased, did not create a valid active trust for exceptant in respect of the stocks mentioned in paragraph 3d; and that consequently Mr. Arnold was not entitled to the provision made for his compensation as trustee.</p> <p>This position is not well taken, and,for these reasons:</p> <p>There can be no doubt that the intention of testator, however defectively expressed, was to create an active trust for Mrs. Harper. The direction to Mr. Arnold to collect and pay over the dividends, and the liberal provision made for compensation of his service, in this behalf, are inconsistent with any other theory. It was in furtherance of this manifest intention that the appropriation to Mr. Arnold as trustee in distribution on’the’audit of the former account was made. No question was then raised as to the validity of the trust, not to the decree. That decree cannot be collaterally attached; it is conclusive until set aside. It is, therefore immaterial in this proceeding which in respect of that proceeding is collateral: Rhoad’s Appeal, 39 Pa. Stat. 386, whether the trust was defective in its creation or not; the decree of appropriation made it a fact and conclusive here. When Mr. Arnold had accepted the trust he had complied with the condition precedent to his right to demand the legacy given him in that behalf: Harrison v. Rowley, 4 Ves. 232.</p> <p>2d. It was also contended that, assuming the trust to have been valid, the legacy given Mr. Arnold was liable to abatement, because it was not based on a consideration in existence at the death of testator, and in illustration of this position, .certain authorities were cited to the effect that a legacy to an executor for his care and trouble is liable to abatement.</p> <p>It was not necessary that the consideration should have been in existence at the death of testator to exempt this legacy from abatement.</p> <p>The general rule is that among volunteers legacies abate in case of deficiency of assets, but if there be any valuable consideration for the testamentary gift, as where a general legacy is given in consideration of a debt owing to a legatee, or of the relinquishment of any right or interest, as of her dower by a widow, such legacy will be entitled to a preference of payment over the other general legacies which are mere bounties: 2 Williams on Executors, 1364; Trustees Appeal, 97 Pa. St., 187. This statement is broad enough to embrace as well a consideration arising after, as in existence at the date of testator’s death, and there is no reason why it should not. An estate may be as effectually bound by a contract entered into in pursuance of a will as by a contract made with testator in his life time. A bequest on condition of taking care of testatrix’s house and goods for three months after her death, as in Wilson’s Estate, 39 Leg. Int., 109, or of taking care of testatrix’s husband after her death, as in Gasman’s Estate, 10 W. N. C., 275, were based on valuable considerations arising after testatrix’s death, and no one can, with reason, doubt that they were properly held to be within the rule of exemption from abatement. The legacy to Mr. Arnold falls within the same class. It was made to him as a conditional offer of so much compensation for his services as trustee, and when he had accepted the appointment his remedy against the estate for the amount of the legacy was as complete as though he had made a similar contract with testator in his life time. It is true, as was suggested by counsel for exceptant, that his acceptance was purely voluntary, but that might with as much force have been said, had a similar contract been made with testator in his life time. The essential fact here is that the legacy was given in consideration of the services and responsibility of the trustee. Had no legacy been given him he would have, been entitled to compensation all the same as well as a preference in payment; the gift of the legacy had the same purpose in view: Guien’s Estate, 1 Ash, 317, and there is no apparent reason why the preference should not continue as against volunteers.</p> <p>The exceptant’s counsel rely on a passage in 2 Williams on Executors, 1364, in support of their position, that in order to entitle a general legatee to exemption from abatement, the consideration upon which it is based must have been in existence at the date of the testator’s death. The case of Blower v. Morret, 2 Ves., 420, cited in the foot note for this qualification of the general rule, does not sustain it. The sole question involved there was’ whether a bequest to a wife in lieu of dower was liable to abatement, and there is not even a.discussion of the question suggested now. And the suggested qualification is entirely inconsistent with the letter and the reason of the rule. The sole test is whether the legacy is based on a valuable consideration, and it is obviously immaterial whether or not the consideration in fact sprang into existence before or after testator’s death.</p> <p>The illustration suggested by exceptant’s counsel in support of the same position, grew out of a peculiarity of the English law. The services of trustees there are gratuitous, and consequently a legacy for care and trouble in the administration of a trust is a part bounty. In this state trustees are entitled to compensation for their services, and the case cited from English books are inapplicable.</p> <p>If, therefore, the legatee stood upon the ground of consideration alone, he would be entitled to a preference in payment over Mrs. Harper, wbo is a volunteer. But there is an additional reason for preference. Mrs. Harper is the beneficiary of the trust fund of which Mi'. Arnold is trustee. Had no testamentary provision been made for compensation, the trust fund must have been liable; this legacy is in relief of the fund, and, therefore, for the -benefit of Mrs. Harper. If less than the full amount of the legacy should be realized, the trustee may have recourse against the trust fund for the deficiency : Guien’s Estate, supra. In answer to this, it is said that Mrs. Harper claims here as pecuniary legatee and not as beneficiary under the trust. There is no merit in this position. She claims under the same will in which the trust is created for her benefit. . The trustee accepted the trust upon the condition of payment of the legacy presumably with her consent. She can not now be heard to deny his right to the full consideration of his acceptance.</p> <p>For these reasons then the exceptions must be dismissed.</p> <p>Whereupon Mary A. Harper took this appeal, assigning for error the dismissal of the exceptions and decreeing distribution to J. Morrow Arnold in preference to the appellant.</p>

<p>1. On the trial of one who is indicted with others for murder, but who is not alleged to have actually struck the blow causing death, it is not error to charge that the defendant was guilty if he were present at the scene of the killing, aiding and abetting in the purpose for which he and those with him were there, and the killing was in pursuance of or an incidental probable consequence of such purpose. An intent to hold possession of disputed land by a show of arms is unlawful, and draws to it the consequences of all acts done in carrying it into execution.</p> <p>2. A juror is not disqualified because he has read the newspaper account of the trial of one jointly indicted with the defendant, and the newspaper report of the testimony taken at the said trial, if he has not formed a fixed opinion as to the guilt of the defendant himself.</p> <p>3. On the trial of one charged with murder, testimony that the defendant had consulted counsel, and had by counsel been advised that he had a legal right to maintain possession of the land, in a dispute about which the alleged murder took place, is not admissible in evidence.</p>

<p>Appeal -from the Orphans’ Court of Allegheny county: Of October and November Term, 1885, No. 207.</p> <p>Appeal of William A. Springer from the decree of said court that he pay to Nancy Springer the sum of $3,978.50, being the cash value of Mrs. Nancy Springer’s share of production for six years of farm devised by will of decedent to William A. Springer less admitted credit of $1,000 and cost.</p> <p>'The following are the facts in the case as appears from the statement filed by the Court, Hawkins, P. J.:</p> <p>This is a proceeding instituted on behalf of Nancy A. Springer, widow, to enforce certain alleged charges on farms devised to Joseph Springer, Jr., Henry Springer, William A. Springer and John Springer. The respondents demurred; their demurrers were overruled, and thereupon answers were filed, and a large amount of testimony was taken.</p> <p>The prima facie case made by the evidence of petitioner; the defence made by respondents; the rebutting evidence adduced by the petitioner, and the finding of facts by the Court will be briefly stated: [The facts not applicable to the case of William A. Springer are omitted. — Rep.]</p> <p>Joseph Springer died in 1861, testate, seized of about 1,000 acres of land, and leaving to survive him a widow, Nanc}'Springer (the present petitioner) and ten children, viz.; John, Nancy Jane (afterward married to Donaldson), Henry, Joseph, George, Horace (an idiot), Ethaline Morrow, Mary A. Bailey, and William A. Springer, .a minor.</p> <p>By his will he made the following (among other) provisions:</p> <p>“ Again, to my wife, Nancy, I allow the use of the farm on which I now live, during her natural life, for which she is to support my two sons, Horace and William A., and when the said William A. Springer arrives at the age of twenty-one years, he is to have the refusal of renting the farm from his mother, by paying to her one half of every thing that is raised on the farm; also, to be equal shares with her in supporting my son Horace. At the death of my wife, I bequeath the farm on which I now live to my son, William A. Springer, binding him to take good care of my son Horace during his natural life.”</p> <p>The foregoing constitute the only provisions made by testator for his widow; it is not claimed that she has any other estate. The petitioner is now 80 years of age, feeble in body and with mind impaired. See charges :</p> <p>That William A. Springer, on attaining his majority in 1868, elected to take the home farm, subject to the terms of the will; that she estimates the value of her share of the yield and produce of said farm at $1,000 per annum; whereas her said son had.paid her in groceries, flour and provisions, not exceeding $1,00*0 all told. That said Horace, owing to his mental condition and the failure of William to provide for him, had been wholly dependent on her for his care and support, and that she estimates the amount due her from William on that account to be $1,000.</p> <p>From the time of Wm. A. Springer’s election to take the farm in 1868 until 1880, his mother kept house for him. In Í879 or 1880 he notified her that he was desirous of getting married, but that he would not. do so unless she left the house. She at once agreed to go, and shortly afterward moved into a small house, which he built for her on the farm, where she remained with her son Horace, with the exception of two or three short intervals, until the fall of 1884. William undertook to supply her with necessaries. On April 28th, 1883, William induced his mother to sign an agreement which pui’ports to release all claim on the part of Mrs. Springer under her husband’s will; and in consideration thereof William undertakes to allow his mother to occupy the little house, keep her in flour and meat, and keep a cow for her if she wishes one, pay all taxes and keep up repairs, and pay her $36 a year during her life, with a right of rescission of the agreement after thirty days’ notice. The supplies furnished by William gradually decreased in quantity until his mother was compelled to appeal to the neighbors for help, and those to whom she appealed saw every evidence of destitution. She had previously run bills at the store as long as her credit lasted, was then sued, and attachments served on William and Henry. William did not only not supply her with a comfortable support, but was abusive in language and threatening in manner.</p> <p>The article with William was read to Mrs. Springer in an ordinary tone of voice. One of her sons testified that her hearing then was no better than now; if so, there is every reason for believing that she did not properly and fully understand the agreement. While on the witness stand it was difficult to make her understand what was said.' The contract is unconscionable.</p> <p>The productive value of William’s farm in grain and hay was about $1,659.50 per annum, and as he pleads the statute of limitations as against his mother’s claim, the value of her share for six years would be $4,978.50, less credit admitted of $1,000.</p> <p>Hawkins, P. J., filed an opinion which was inter alia as follows:</p> <p>But the interest which she has in the farms of Henry and William A. Springer, arises under the will of her deceased husband; is a charge upon them : Buchanan v. Duncan, 40 Pa. St., 82; and consequently within the jurisdiction of this Court.</p> <p>The principle upon which the decision on the merits of these claims should be rested, can be best stated in the language of Mr. Justice Story. [1 Eq. Jur., § 331.]</p> <p>..... The proper jurisdiction of Courts of Equity is to take every one’s act according to conscience, and not to suffer undue advantage to be taken of the strict forms of law, or of positive rule. Hence it is that even if there be no proof of fraud or imposition, yet if upon the whole circumstances, tlie contract appears to be grossly against conscience, or grossly unreasonable and oppressive, Courts of Equity will sometimes interfere and grant relief, although they certainly are very cautious of interfering, unless upon strong circumstances. But the mere fact that the bargain is a very hard or unreasonable one, is not generally sufficient, per se, to induce these courts to interfere, and indeed it will be found that there are very few cases not infected with positive or actual fraud in which they do interfere, except where the parties stand in some very peculiar predicament, and in some sort under the protection of the law from age, or character, or relationship.”</p> <p>If this principle be applied here, the agreement relied on by William A. Springer must be disregarded. “Upon the whole circumstances,” it is grossly against conscience. The petitioner against whom it is pleaded was impaired in body and mind b,y reason of age when it was executed; it took away from her a competence which was her sole reliance, and left her insufficient to supply common necessaries of life. Her relationship to these respondents imposed upon them a legal as well as a natural duty to maintain her in comfort; and public policy will not permit that they shift their burden upon the poor rates.</p> <p>Mrs. Springer, therefore, stands in a “ very peculiar predicament and in some sort under the protection of the law from age ” as well as from “ relationship ” to these respondents, and is entitled to relief.</p> <p>The Court accordingly entered the following decree: That William A. Springer pay to Nancy Springer the sum of $3,978.50, being cash value of Mrs. Nancy Springer’s share of production for 6 years of farm, devised by will of decedent to William A. Springer, less admitted credit of $1,000 and costs.</p> <p>Whereupon the said William A. Springer took this appeal and filed inter alia the following assignments of error:</p> <p>The Court erred in entertaining .jurisdiction of the petition and of the matters and things therein set forth.</p> <p>The Court erred in not sustaining and in dismissing appellant’s first exception, to wit: The judge erred in finding that the provision in the will of decedent as to respondent, to wit: “ Again to my wife Nancy I allow the use of the farm on which I now live during her natural life, for which she is to support my two sons, Horace and William A.; and when the said William A. arrives at the age of twenty-one years he is to have^the refusal of renting the farm by paying to her one-half of everything that is raised on the farm ; also, to be equal shares with her in supporting my son Horace. At the death of my wife I bequeath the farm on which I now live to my son William A. Springer, binding him to take good care of my son Horace during his natural life,” was alegacy to petitioner charged on the land devised to William A. Springer, respondent, and in entertaining jurisdiction of the petition.</p> <p>The Court erred in not sustaining and in dismissing appellants third exception to the decree, to wit: “The judge erred in finding that the article with William #as executed by petitioner without her fully and properly understanding the same, and that the contract was unconscionable.”</p> <p>■ The Court erred in not sustaining and i'n dismissing appellant’s fifth exception, to wit: “ The judge erred in disregarding the agreement set up by respondent in his answer dated April 28th', 1883.” ' |</p>

<p>Error to the Court of Common Pleas No. 2. of Allegheny county: Of October and November Term, 1885, No. 166.</p> <p>Assumpsit by A. J. McKinley for the use of James L. Orr against John R. Peters and Chester B. Lawrence to recover for a breach of promise on part of the defendants to lease McKinley, who afterwards assigned his interest to Orr, the right to mine coal from a tract of land held by the defendants as tenants in common.</p> <p>The form of the action was originally covenant by Orr against Peters and Lawrence.</p> <p>The court permitted the form of the action to be amended to assumpsit, and the plaintiff to be changed from Orr to McKinley for the use of Orr.</p> <p>On the trial before Ewing, P. J., the following facts appeared :—</p> <p>John R. Peters, one of the defendants, during the period covered by this case lived in Georgetown, Beaver County, Pa.; Chester B. Lawrence, the other defendant, during the same time lived in the City?- of New York.</p> <p>Prior to September 9th, 1879, they owned, as tenants in common, about two hundred acres of land on the Ohio River, about one mile above Georgetown, Beaver County, Pa., under-laid with coal, which had been opened for a short distance and badly worked. On that day an agreement in writing was executed by Peters and McKinley and delivered to McKinley, which contained these premises:</p> <p>This memorandum of agreement made and entered into this ninth day of September, A. D., 1879, by and between John R. Peters of Georgetown, Beaver County, Pennsylvania, party of the first part, and A. J. McKinley, of Pittsburgh, Allegheny County, Pennsylvania, party of the second part. Witnesseth: that for and in consideration of the covenants and agreements on the part of the party of the second part herein contained, the party of the first part — for and in behalf of himself and Chester B. Lawrence, of the City' of New York, who jointly own two hundred acres of land about one mile above Georgetown and fronting on the Ohio River, on which are several veins of coal, among which is a vein or mine of bituminous coal, known as “ the four foot vein ” — doth covenant and agree to and with the said party' of the second part, to grant him a lease for ten years from the date hereof, upon the terms and conditions hereinafter stated, of the said four foot vein of bituminous coal.</p> <p>The terms and conditions on which the lease is to be granted, and which are hereby agreed to by the party of the second part, are as follows, viz:</p> <p>(Then follows the terms and conditions, the said agreement concluding as follows):</p> <p>It is understood and agreed that a lease shall be made and executed by and between the parties hereto on all the terms and conditions herein contained (which is hereby agreed to bv both parties) within sixty days from the date hereof, and it is also further understood and agreed upon by the parties hereto that in case of the non-fulfillment of any of the provisions or stipulations contained in the agreement, or the lease based upon it, by the party of the second part, both the agreement and the lease are forfeited and become null and void at the option of the party of the first part, anything to the contrary herein contained notwithstanding. .</p> <p>It is furthermore understood and agreed upon by the parties hereto that all the provisions and stipulations of this agreement and the lease when made are to extend to and bind their successors, administrators or assigns.</p> <p>In witness whereof the said parties hereto have hereunto set their hands and seals the day and year first above written.</p> <p>John R. Peters, SEAL.</p> <p>Witness: R. Calhoon,</p> <p>A. J. McKinley, 'seal!</p> <p>A. J. McKinley entered into possession under this agreement and mined coal thereunder until the latter part of 1879, when he associated James L. Orr with him, and together they worked, the mine until January 15th, 1880, when McKinley assigned all his interest in the lease to Orr, who then took exclusive possession and proceeded without delay to improve the works. The improvements were large and valuable, the cost of the same being from $10,000 to $12,000. Peters lived near the mine and took’an active interest in all that was going on about the same. He was frequently on the ground and knew that Orr was working the mine, and on several occasions expressed his satisfaction that such was the case. Orr paid to Peters rent or royalty for the coal mined and received from him receipts therefor, acknowledging the payments by Orr, not as agent, but as principal. Lawrence never executed the agreement to lease. There was never any lease made. Neither did Lawrence ever receive any of the royalties.</p> <p>Orr continued in possession until March 10th, 1882, when the defendant Peters with a force of men took possession of the mine and works, during the temporary absence of Orr, and declared the lease forfeited.</p> <p>This suit was then brought to recover for the injury sustained.</p> <p>The plaintiff made the following offer of evidence:</p> <p>“ Plaintiff’s counsel propose now to offer evidence tending to show the improvements made by both the legal and equitable plaintiff in the premises, the eviction thereform of the equitable plaintiff and tbe damage suffered by him. • Further, to - show that- the period in which said improvements were made extended over two years without objection on the part of said Lawrence, and with the approbation of the said Peters, and that said improvements were large and valuable and notorious; the cost of the same being from $10,000 to $12,000. Which was objected to by defendant’s counsel as incompetent and irrelevant under the form of action and pleadings, and because there was not sufficient evidence to be submitted to the jury to charge Chester B. Lawrence in this case. The objection was sustained and bill sealed for the plaintiffs. (First assignment of error.)</p> <p>The Court charged the jury: “ Under the evidence your verdict should be for the defendants.” Which was excepted to and a bill sealed. (Second assignment of error.)</p> <p>Verdict for the defendants and thereupon judgment. Whereupon the plaintiffs took this writ assigning for error the refusal of his offer of evidence and the charge of the court.</p>

<p>1. Words in a will merely expressive of a desire, recommendation and confidence are not sufficient to convert a devise or a bequest into a trust.</p> <p>2. After an unqualified devise by the testator of his property no precatory words to his devisee can defeat the estate previously granted.</p>

<p>Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term, 1885, No. 7.</p> <p>■ This was an appeal by the Liggett Spring and Axle Company from a decree of said court dismissing a bill in equity, wherein the said, the Liggett Spring and Axle Company were plaintiff, and the Diamond National Bank the defendant.</p> <p>The bill and answer were referred to James S. Young, Esq., as Master, whose findings of fact and conclusions of law were as follows:</p> <p>The contention in this case is for the possession of four certificates of the Union Storage Company, which are negotiable, and represent about 403 tons of pig iron.</p> <p>The plaintiff, the Liggett Spring and Axle Company, “ Limited,” filed its bill, alleging that on March. 26th, 1883, it loaned to James Marshall, a member of plaintiff company, its promissory note for $7,000, dated March 26th, 1883, at thirty days, and payable to the order of said Marshall, and that Marshall agreed at the same time to either pay the note or to repay to the plaintiff the amount of the note in case the plaintiff paid it when due, it being the intention of Marshall at that time to have the note discounted by the Diamond National Bank, the defendant, and that Marshall pledged to the plaintiff as security for his agreement the four certificates in controversy, which were at that time in the possession of the defendant as security for a loan.</p> <p>' It is further alleged that the said note was discounted by the defendant, and that when it became due the plaintiff tendered to defendant the amount of the note and demanded the certificates.</p> <p>That the tender was refused and the certificates retained by the defendant.</p> <p>The defendant, the Diamond National Bank, alleged in its answer, that the note of $7,000 was a dividend given by plaintiff to Marshal], being his share as a member of plaintiff company, of the undivided profits of said company, and denied that said note was loaned by plaintiff to Marshall.</p> <p>The defendant further alleged that it held the certificates as general collateral for the note and for other loans to Marshall under an agreement with him to that effect, and that said agreement and loans were made to Marshall prior to any intimation from plaintiff that it had any claim upon said certificates.</p> <p>The first fact to be determined is under what circumstances the certificates came into the possession of defendant.</p> <p>The testimony shows that on March 9th, 1883, Marshall, who was at that time a borrower from defendant bank, asked Mr. Scully, cashier of the bank, to cash two checks of Marshall, drawn upon the Farmer’s Deposit National Bank of Pittsburgh for $7,000, and left with the cashier as collateral security the four certificates in controversy.</p> <p>The checks were cashed by the bank, Marshall receiving a New York draft for $7,000. On March 10th he called at the bank and exchanged checks with the bank, and this transaction was kept up from day to day, Marshall giving his check for $7,000 on the Farmer’s Deposit National Bank, and receiving the check of the defendant bank for the same amount, until March 24th.</p> <p>On Monday, March 26th, Marshall gave the bank the Liggett Spring and Axle Company note for $7,000, which was discounted by the bank and the proceeds used by Marshall in paying his check of March 24th.</p> <p>When the note was discounted the certificates were still in the possession of the defendant bank.</p> <p>It was contended by the plaintiff that the certificates were left with defendant as special collateral for the $7,000 loan and for no other purpose.</p> <p>It was contended by the defendant that the certificates were not left with it by Marshall as special collateral for the $7,000 loan, but as general collateral for that loan and for all other indebtedness of Marshall to the defendant.</p> <p>The Master finds that, while it is true that the certificates were first left on March 9th with the checks for $7,000, and were in the possession of defendant when it discounted the $7,000 note, that took the place of the checks, yet, there is no positive testimony that they were left as special collateral for that loan and for no other purpose.</p> <p>The Master also finds that there was no understanding between Marshall and the defendant, that the defendant should hold the certificates as general collateral for all indebtedness of Marshall until April 11th, 1883, and that at that time all the indebtedness that the defendant claims to hold the certificates as general collateral for, except the sum of $827-=^, being the balance on the $3,000 check, of April 11th, 1883, had been incurred, and that the advance was made on the $3,000 check of April 11th, 1883, upon the strength of the understanding that the four certificates were general collateral.</p> <p>The next controverted question of fact is whether the $7,000 note was loaned to Marshall by the plaintiff company or was given him by it in payment of his share of the undivided profits of the company.</p> <p>Plaintiff’s own testimony shows that the company had $28,000 of undivided profits, but that the money had not yet been collected, and that the note under consideration was given to Marshall in payment of his share of the profits, but as the members of the company did not desire to use the profits but wished them to remain as part of the capital, it was agreed that Marshall should repay the amount of the dividend received by him, and he pledged the certificates as security for that undertaking.</p> <p>The testimony of defendants shows that Marshall and Parke, also a member of the plaintiff company, represented to defendant that the $7,000 note represented Marshall’s share of the undivided profits. This disposes of all the disputed questions of fact. The Master submits the following findings of fact:</p> <p>1st. The plaintiff is a limited partnership under the Act of 1874 of the Commonwealth of Pennsylvania, and the defendant is a corporation under the banking laws of the United States.</p> <p>2d. On March 26th, 1883, Marshall was a member of plaintiff company.</p> <p>3d. That the $7,000 note of the Liggett Spring and Axle Company was given him by that company in payment of his share of the undivided profits of said company. The said division of profits having been made by plaintiff at the request of said Marshall and for the purpose of affording him relief.</p> <p>4th. That on March 26th, 1888, when Marshall received the note he verbally agreed (subsequently on March 28th, 1883, reduced to writing) to repay the plaintiff the amount of said note, and pledged as collateral security therefor the four certificates in eontroversjq the said certificates being then in possession of defendant.</p> <p>' 5th. That the four certificates in controversy were first deposited with the defendant by Marshall on March 9th, 1883, with his own check for $7,000, which were cashed by the defendant, and that the defendant exchanged checks with Marshall from day to day, from March 9th to March 24th, and that on March 26th the defendant discounted the Liggett Spring and Axle Company note for $7,000, giving Marshall the proceeds thereof, which were used by him in lifting his check of March 24th, the certificates still remaining with defendant.</p> <p>6th. That the certificates were not deposited by Marshall with defendant under a particular agreement that they were to be collateral security only for the $7,000 loan.</p> <p>7th. That on April 11th, 1883, there was'an understanding between Marshall and Scully, cashier of defendant bank, that the four certificates in controversy were to be held by the defendant as general collateral for all indebtedness of Marshall to the defendant.</p> <p>8th. That on April 11th, 1883, defendant advanced to Marshall, upon the understanding that the certificates were general collateral, the sum of $3,000, of which sum there is now owing to the bank the sum of $827.89, with interest on the sum of $744.79 from June 28th, 1884.</p> <p>9th. That all the indebtedness for which defendant claims to hold the certificates as general collateral (except the amount of $827.89, with interest as set forth in the 8th finding) was antecedent to April 11th, 1883.</p> <p>10th. That defendant had no notice of the claim of plaintiff upon the certificates in controversy until April 16th, 1883, or later, which was after defendant had made all the loans to Marshall for which it claims to hold the certificate as collateral.</p> <p>11th. That plaintiff tendered to defendant the amount of its note and demanded the certificates, and that defendant refused the tender and to deliver the certificates.</p> <p>Upon the above findings of fact two questions arise:</p> <p>1st. Can the defendants hold the certificates as collateral security for the payment of the indebtedness of Marshall as against antecedent equities.</p> <p>2d. What is the effect of the agreement to Marshall with the plaintiff to repay the $7,000 note ? Are there any equities in the plaintiff under that agreement?</p> <p>As to the sum of $827.89 being the balance due on the $3,000 check of April 11th, 1883, there can be no doubt that the defendant can hold the certificates as collateral until it is paid, for the Master has found as a fact that the $3,000 of April 11th, 1883, was advanced on the strength of the certificates. Neither is there any controversy as to the $7,000 note, plaintiff’s theory of the case being that the certificates were pledged as- collateral specifically for that note.</p> <p>But as to all the other indebtedness of Marshall the question remains, for the Master has found as a fact that it was antecedent to April 11th, 1883, the date fixed by the testimony as the date when the understanding was had between Marshall and defendant, that the certificates were to be held by the defendant as general collateral.</p> <p>The counsel for plaintiff contends that the rule prevails in Pennsylvania, that the pledgee of negotiable securities received by him as collateral security for an antecedent debt is not a holder for value, and is not protected from antecedent equities, and cites the following cases in support of his position : Maynard v. Bank, 98 Pa. St., 250 ; Davey’s Appeal, 97 Id., 153; Petrie v. Clark, 11 S. & R., 377; Colbrook on Collateral Securities, § 23.</p> <p>The counsel for defendant insists that the bankers’ general lien is an exception to this rule, and in support of his position cites the following cases: Brandao v. Barnett, 12 Clark & Finley, 787, H. of L.; In re European Bank, L. R„ 8 ch., app. 41; Sparhawk v. Drexel, 1 W. N., ch. 560 ; Bank of Metropolis v. New England Bank, 1 How., 239; Jones v. Peppercorn, 5 Jur., part 1, p. 140 ; Davis et al. v. Boush, 5 T. R., 488; Price to use, etc., v. Franklin Ins. Co., 13 W. N. C. 312.</p> <p>The Master is of the opinion that the rule in Pennsylvania is, that the pledgee of collateral securities, which are negotiable, and which he takes for an antecedent debt, is not entitled to hold them as against antecedent equities.</p> <p>The cases cited by counsel for defendant convince the Master that the rule is different from that above stated in the United States Courts, in England and other States, and that the general bankers’ lien is recognized by them, but he is unable to find any case in Pennsylvania that decides that the bankers’ general lien is an exception to the rule above laid down, except the case of Price to use, etc., v. Franklin Insurance Company, 13 W. N. C. 312, which is á case decided by the- Common Pleas Court of Philadelphia, and not removed to the Supreme Court of this State.</p> <p>If there were nothing else in this case the defendant would be unable to hold the securities as against the plaintiff, and this brings the Master to consider the second question, viz':</p> <p>What is the effect of the agreement of Marshall Avith the plaintiff to repay the $7,000 note? Are there any equities in the plaintiff under that agreement ?</p> <p>The agreement of Marshall to repay the $7.,000- note is in effect either an agreement to contribute $7,000 to the capital of the plaintiff company, or it is an agreement to loan the plaintiff company-the sum of $7,000.</p> <p>If it was an agreement to contribute $7,000 to the capital of thé company' it would have no effect until the articles of association, under the limited partnership act of 1874, Avere amended and recorded, and there would be no equity in the plaintiff until that Avás done. There is no proof before the Master that it was done; therefore, there is no equity in the plaintiff which Avould entitle it to the certificates.</p> <p>' If it was an agreement to loan the plaintiff $7,000, there arises no equity in the plaintiff upon his failure to lend the money, for what damages has the plaintiff suffered by reason of Marshall’s failure to lend that amount of money to it ?</p> <p>The Master is, therefore, of the. opinion that there are no equities existing in the plaintiff — and the bill should be dismissed.</p> <p>Between Marshall and defendant, there is need of no authority to sustain the proposition ; that having received the money from the defendant, and having agreed with the bank that it should hold the certificates as .collateral for all indebtedness, the defendant is entitled to hold the certificates until it receives all it has loaned to Marshall, with interest, or it may dispose of the certificates and apply the money realized to paying the indebtedness of .Marshall to it.</p> <p>The Master recommends that the bill be dismissed at the cost of the plaintiff.</p> <p>The plaintiff filed exceptions to this report, all of Avhich the' court dismissed and in accordance with the recommendation-of the Master ordered, adjudged and decreed that the plaintiff’s bill be dismissed. The plaintiff thereupon took this appeal assigning for error. said decree of the. court dismissing the plaintiff’s bill.</p>

<p>1. The action of replevin lies for the property of one person in the possession of another, whether the claimant ever had possession or not, and whether his property be absolute or qualified, provided he has the right of possession.</p> <p>2. The defendant procured a restraining order from the District Court of the United States, and thus restrained the sheriff from replevying the goods claimed, the sheriff made no return to his writ:</p> <p>Eelcl, (a) That the fact that the sheriff was restrained by the defendant from taking the goods was not a bar to the action, (b) That Hie lack of a return by the sheriff did not constitute a defence for the reason that there was a general appearance by the defendant, (o) That the action of replevin being not a mere proceeding in rem, but also a proceeding in personam,, the plaintiff in the case was entitled to recover damages to the full value of the property, and also for its detention.</p> <p>3. An adjudication of bankruptcy and a composition with creditors is not a bar to an action of replevin by one for goods pledged to him by the defendant as security for a loan to another; neither is it a bar to an action by a creditor whose name and amount due him was not contained in the statement of the debtor produced at the meeting in which the resolution effecting the composition was passed.</p>

2, of Allegheny county: Of October and November Term, 1885, No. 139. This was an action of assumpsit by the County of Allegheny, against A. H. Rowand, Clerk of the Court of Quarter Sessions of the Peace, for money belonging to the County which had been lawfully collected by that officer, but had not been paid over. The defendant pleaded non-assumpsit. There had not been any settlement or audit of the officer’s accounts by the Controller of the County. .

<p>1. Where a railroad company contracts for the construction of its road with one who agrees to do all the work for a stipulated price, retaining tc itself no direction or authority as to the means to be_ employed by the contractor to perform the work, the company is not liable for damages resulting from his negligence, for the contractor is exercising an independent employment.</p> <p>2. A railroad company to which one grants the right to enter upon his land to construct a road is not liable to him for damages resulting as a consequence of the company’s entering and constructing the road.</p> <p>3. Article XVI. section 8 of the constitution of the state does not apply to damages resulting from carelessness or negligence in constructing a railroad.</p>

<p>Ebbob to Common Pleas, No. 1, of Allegheny county: Of October and November Term, 1885, No. 225.</p> <p>Debt by the Commonwealth against P. Harvey Miller and George Í). McGrew, executors of the last will of Daniel Richey, deceased, to recover collateral inheritance tax alleged to be due on account of the provisions of the said will.</p> <p>In the court below the following case stated was filed:</p> <p>It is agreed by and between the Commonwealth of Pennsylvania, by Philip Hoerr, Register of Wills, etc., of Allegheny County, Pa., plaintiff, and George D. McGrew and P. H. Miller, executors of David Richey, deceiised, late of said county, defendant, that an amicable action of debt be entered in said court by plaintiff against defendants, and the following case is stated for the opinion of the court:</p> <p>David Richey, a citizen of Allegheny County, Pennsylvania, died July , 1879, having first made his last will and testament, dated April 8th, 1879, and duly registered in said county, which, in words and figures, is as follows:</p> <p>“I, David Richey, of the City of Allegheny, in the County of Allegheny and State of Pennsylvania, do make and publish the following as and for my last will and testament, hereby entirely revoking all other wills by me at any time heretofore made:</p> <p>“ I. To my sister, Rebecca Culbertson, I devise for and during her natural life, the house in which she now resides, with the lot therewith connected, the same being situated in the Third ward, of the City of Allegheny, in the County of Allegheny and State of Pennsylvania, the said house being numbered two hundred and ninety-three (293) Ohio street, in said City of Allegheny.</p> <p>“ I also bequeath to her for her natural life all the household furniture, goods and personal property in or used in said house.</p> <p>“From and after her death I devise and bequeath said real and personal estate to my executors hereinafter named, to be disposed of as hereinafter stated.</p> <p>• “II. To Kate Smurr, wife of Reason Smurr, of Fayette County, in the State of Pennsylvania, I do devise for and during her natural life, the farm on which she now resides, the same being situate in township, in said County of Fayette, contains about one hundred acres, and is the same I purchased of Edward Eaglen. From and after her death I do devise said farm to such of her children as shall be then living. Life estate of said Kate to be for her sole and separate use.</p> <p>“ III. I do give, devise and bequeath all the rest and residue of my property, rea], personal and mixed, to mv executors hereinafter named, in trust, nevertheless, that they shall dispose of and sell all the same, and, after paying all my legal debts and funeral expenses therefrom, shall divide the residue thereof as follows:</p> <p>“IV. To my sister, Rebecca Culbertson, the sum of twenty thousand dollars ($20,000). This sum shall have priority over all others, and shall bear interest at the rate of six per centum per annum from my death until it is paid.</p> <p>“V. To P. H. Miller of Allegheny City, aforesaid, the sum of twenty-five thousand dollars ($25,000) in trust, nevertheless, for the following uses and purposes: That the said P. II. Miller shall invest and re-invest said sum in such manner and in such securities as to him may seem proper, with power to change the investments ; that he will collect and receive the income, interest and pi-ofits therefrom, and, less the expenses of his trust, shall pay the same quarterly to my niece, Elizabeth Owens, wife of Samuel T. Owens, for her sole use, for and during her natural life, but neither the principal or income or interest from this money shall in any manner, shape or form be liable for any debtá she or her husband may create, nor shall she have the power in any way to anticipate any portion of her income, or in any way assign any portion of the same.</p> <p>“ From and after the death of the said Elizabeth Owens, the said P. II. Miller shall divide the money or securities in his hands to and among her children who shall then be living. . . .</p> <p>“XVIII. All the surplus, if anjq remaining after the payment of all these legacies and the expenses of selling property, distributing, etc., I do direct shall be equally divided among the following: My sisten, Rebecca Culbertson, my nephews S. H. Richey and D. S. Richey, and the said .Kate Smurr, P. II. Miller, in trust, as aforesaid, for Elizabeth Owens, Vasty J. Hammaker,. Jane Dorland, David Dorland, John Dorland, Isaac Dorland, Harry Dorland, Norris Haines, Maria Shelling, Elizabeth Young, Newton B. Richey, Thomas Richey, Catharine Tryan, Susan Young, Louisa Richey, Elizabeth Richey, Mary Richey and Cordelia Smith, Hunter Richey and the said three children of John Richey.</p> <p>“ To my said executors and trustees I do give full and ample power at their discretion to sell, barter and dispose of at public or private sale, on such terms and in such manner as they may deem best, all my property, real and personal, herein-before devised and bequeathed to them, and to make all proper bills of sale and conveyances thereof. To any one or more"of my legatees they may give or convey, in satisfaction of his or her legacy, such portion of my real or personal estate as in the discretion of my said trustees and the said legatees shall be a fair equivalent therefor.</p> <p>“ I do not desire any of my property to be sacrificed by too speedy sales, and I therefore hereby give to my said trustees and executors three years time from my death to make sales of my property and divide the proceeds thereof among the legatees if in their discretion such time be necessary. Until the trustees do make such division, the said legacies, except Rebecca Culbertson, shall not be payable nor shall they bear interest.</p> <p>“ I give the same power to the surviving trustee and executor which I do hereby give to both, and I hereby nominate and appoint George D. McGrew and P. H. Miller, both of Allegheny City, executors and trustees hereof.</p> <p>“ In witness whereof, I, the said David Richey, at the end of this my will hereinbefore written on six preceding pages, do hereunto set my hand and seal this eighth day of April, A. d. 1879. (“Signed), David Richey, [l.s.]”</p> <p>The testator died unmarried and without issue, and all his estate descended to collaterals. The Register of Wills of Allegheny County appointed an appraiser under the provisions of the law relating to collateral inheritance taxes, to make appraisement of the estate of the testator subject to such tax.</p> <p>Among the property of which the testator died siezed, and which formed a portion of the residuary estate devised to his executors, were certain lands in Virginia and Kentucky, of which the said appraiser made appraisement on April Í2th, 1880, and made return as follows, viz:</p> <p>“That he valued and appraised all the interest of decedent, -j^, in all that certain tract of land known as the California property, Rockbreeze County, Virginia, containing 7,000 acres, at the sum of . . $17,500</p> <p>“ Collateral tax thereon,.......... 875</p> <p>“ That he valued and appraised all the interest of decedent, being in the Peters Mountain property in -county, Virginia, containing 5,000 acres, at the sum of........ 8,000</p> <p>“ Collateral tax thereon, ......... 400</p> <p>“ That he valued and appraised all that certain farm tract,'containing from three to five hundred acres, situate in Frederick County, Virginia, at the sum of . . ............15,000</p> <p>“ Collateral inheritance tax,........ 750</p> <p>“ That he valued and appraised all the interest of decedent in tract of land situate in Marion County, Kentucky, at the sum of........ 4,000</p> <p>“ Collateral tax thereon,.......... 200</p> <p>Owing to claims made upon the estate as to the title to the two tracts of land in Virginia first described, viz: The tract known as the California property, and the tract known as Peter’s mountain property, and advice of counsel that the collateral inheritance tax was not payable on the lands in Virginia and Kentucky, the estate of decedent has not been settled; and though the collateral inheritance taxes have been paid on the balance of the decedent’s estate, the payment of it on the lands in Kentucky and Virginia was left for adjudication in the courts.</p> <p>If the court should be of the opinion that the estate thus appraised is subject to collateral inheritance tax under the laws of Pennsylvania, then judgment to be entered in favor of plaintiff for the sum of $2,225, with such interest as the court may adjudge to be due under the collateral inheritance laws, together with 5 per cent, attorney’s commission and costs of suit.</p> <p>If the court should be of the opinion that the said estate is not subject to such tax, then judgment to be entered in favor of defendant with costs.</p> <p>Either party to have the right to a writ o.f error within 30 days after, judgment.</p> <p>Witness the hands of the said parties at Pittsburgh, this 25th day of September, 1885.</p> <p>R. B. Petty, Attorney for Plaintiffs.</p> <p>D. T. Watson, Attorney for Defendants.</p> <p>The court held that appraised estate was subject to the collateral inheritance tax and accordingly entered judgment for the plaintiff for $2,225 with interest at the rate of six per cent., and attorney’s commissions and costs.</p> <p>The defendants took this writ assigning for error the entry of the judgment for plaintiff.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term, 1885, 1885, No. 168.</p> <p>This was an action in case by The Penn Bank, a corporation under the laws of the State of Pennsylvania, to the use of Henry Warner, assignee for the benefit of creditors, against the directors of the said bank to recover large sums of money alleged to have been lost to the corporation by reason of the carelessness, negligence and want of due and proper care on the part of the defendants in the control, direction and management of the affairs, business and property of the bank.</p> <p>The bank made the assignment to Warner on May 28th, 1884; this action was brought October 30th, 1884. To the declaration filed the defendants pleaded in abatement (1) That before the commencement of the action by Warner as assignee a bill in equity had been filed in the Court of Common Pleas, No. 2, for Allegheny County, against the same defendants for the identical causes of action complained of, by E. W. Swentzel, J. M. Montgomery and over a hundred other creditors of the Penn Bank, whose names were set out in the plea, and who filed the bill for themselves and such other creditors of the Penn Bank who might join therein, which said suit was still pending at the time of plea pleaded; (2) That before the commencement of the action a bill in equity for the identical causes of action had been brought in the Court of Common Pleas, No. 2, of Allegheny County, against the same defendants and Warner assignee as aforesaid, by Elias J. Unger and others, alleging themselves creditors of the. Penn Bank, and that they had filed the bill for themselves and any other creditors who might join therein, which said suit was still pending at the time of the plea pleaded.</p> <p>' The plaintiff demurred to the plea, on the ground that it was double, and also uncertain, informal and insufficient, etc. After argument the Court overruled the demurrer and entered judgment in favor of the defendants, that the writ be quashed.</p> <p>The plaintiff took this writ assigning for error the judgment of the Court quashing the writ.</p>

<p>Error to the Court of Common Pleas No. 1 of Allegheny county: Of October and November Term, No. 183.</p> <p>This action was brought by John Wildee against Alexander McC. Milligan, John A. McKee, James R. W. Sloane, and David B. Wilson, in which the defendants were summoned to answer a plea of trespass on the case for conspiracy. The declaration is against A. M. Milligan, J. A. McKee, J. R. W. Sloane, and D. B. Wilson, as having conspired with G. M. Elliot, Mary Miller, J. H. Pickens, and Duncan Echols, in the Commonwealth of Alabama; J. M. Faris, in the Commonwealth of Illinois; and David B. Gregg, in the Commonwealth of New' York; and others to the plaintiff known and unknown to defame with the intent, or for the purpose of injuring him in his good name and in his business and profession of teaching, and to cause it to be suspected and believed that the plaintiff was chargeable with insanity and monomania on the subject of adultery and whoredom, bad character, disobedience to employers, and libelling, and also for actually injuring him in his reputation and business and profession of teaching, in pursuance and execution of their conspiracy. The declaration contained seven counts, in the first of which is set forth the conspiracy to defame; in the second and third counts, the charge or imputation of insanity and monomania on the subject of adultery and whoredom; in the fourth count the charge of bad character; in the fifth count that of disobedience to employers; and in the sixth and seventh counts, the charge of libelling.</p> <p>In the sixth count the plaintiff charges that the defendants are guilty of slandei’, in that he printed and disseminated a paper, in which certain persons have been scandalized.</p> <p>The defendants demurred to the declaration, and alleged that the declaration and the matters therein contained were not sufficient in law to maintain the action. They also specified nine causes for demurrer, in which they contend, inter alia, that the declaration is improper and insufficient in form; that it erroneously charges them jointly with speaking and publishing the alleged oral slander; that the words alleged to be slanderous are not actionable; that the innuendoes vitiate the declaration by enlarging, extending, and changing the meaning or sense of the words charged; and that the statement or specification of damages contained in the declaration is erroneous. The plaintiff joined in the demurrer.</p> <p>The court sustained the demurrer, whereupon the plaintiff took this writ, assigning for error inter alia the judgment of the court in sustaining the demurrer.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term, 1885, No. 219.</p> <p>Assumpsit by the Western Pennsylvania Hospital for the Insane against the County of Clarion. Plea non-assumpsit payment with leave.</p> <p>Lorenzo Haight, whose place of settlement was in Jefferson County, was convicted of rape in the Oyer and Terminer of Clarion County, and sent to the Western Penitentiary.</p> <p>The Court of Quarter Sessions of Allegheny County, by an' order under its seal, directed the removal of said prisoner from the Western Penitentiary to the Hospital for the Insane at Dixmont. This order was founded on proceedings had in that court, under the first section of the Act of May 14th, 1874, P. L. 160. The order directed that the expense of the removal of said prisoner and his maintenance at the hospital be paid by the County of Clarion. No notice of the proceedings had been given to Clarion County.</p> <p>This suit was brought by the Hospital against the County of Clarion, to recover said expenses.</p> <p>The defendant submitted the following points:</p> <p>1. That under the provisions of the Act of 14th of May, 1874, P. L. 160, entitled “ An Act to provide for the custody of insane persons charged with and acquitted or convicted of crime,” the court or a law judge of the county in which the prisoner was convicted only has jurisdiction to appoint a commission for removal of prisoner from the penitentiary to the hospital, and as the evidence in this case shows that said prisoner was convicted in Clarion County, the order issued by the Court of Quarter Sessions of Allegheny County is void, and under the evidence the County of Clarion is not liable and the verdict should be for the defendant. Refused and reserved, (First assignment of error.)</p> <p>2. That the Act of Assembly mentioned in the first point is a general law and did not repeal the several prior local acts relating to the West Pennsylvania Hospital, and the Court of Quarter Sessions of Allegheny County was not authorized to transfer said prisoner from the penitentiary to the hospital, and under the evidence the verdict should be for the defendant. Refused and reserved. (Second assignment of error.)</p> <p>3. That under all- the evidence the verdict of the jury should be for the defendant. Refused. (Third assignment of error.) Verdict for the plaintiff, subject to the points reserved.</p> <p>The Court, Collier, J., filed the following opinion on the points reserved.</p> <p>On the trial of this case it appeared that Lorenzo Haight had been tried and convicted in Clarion County, of the crime of rape, and had been duly sentenced by the court of that county to serve a term in the Western Penitentiary, located in Allegheny County.</p> <p>While undergoing his sentence in the said institution, the said Lorenzo Haight was found to be insane, by proceedings under the Act of May, 1874, P. L. of 1874,160, and committed to the Western Penitentiary Hospital for the Insane, by the Court of Quarter Sessions of Allegheny County, to be maintained there at the expense of Clarion County.</p> <p>The above facts were admitted and undisputed.</p> <p>The Act of May 14th, 1874, sec. 1st, provides: “Whenever any person is imprisoned within the Commonwealth, convicted of any crime whatsoever, or charged with any crime and acquitted on the ground of insanity,” application in writing may be made by the warden, superintendent, physician, or any in,Spector of the penitentiary or prison in which such person is imprisoned, to the court hereinafter named, or any law judge thereof, “ which application shall certify under oath or affirmation that such prisoner is believed to be insane, and shall request that such prisoner shall be removed to a hospital for the insane,” “ whereupon it shall be lawful for any judge learned in the law of any court within this Commonwealth having immediate cognizance of the crime with which such prisoner is charged, or of the court by which such prisoner has heen convicted, to appoint a commission of three citizens,” etc.</p> <p>It seems to us that this Act, its provisions being in the alternative, gives jurisdiction to two classes of courts — first, to a law judge of any court within the Commonwealth, having immediate cognizance of the crime charged; and second, to the court by which the person was convicted. It was not necessary therefore that the petition for the removal of the insane convict to the hospital should be made to the Court of Clarion County.</p> <p>As to the second point, we are unable to see how the local or special Acts relating to the hospital, interfere with the general Act of 1874, and we do not think they do.</p> <p>And now September 18th, 1885, judgment is entered on the verdict of the plaintiff on the questions of law reserved on payment of the verdict fee.</p> <p>Judgment was entered, whereupon the defendant took this writ assigning for error the refusal by the court of the defendant’s points.</p>

<p>Error to the Court of Common Pleas No. 1, of Allegheny County: Of October and November Term, 1885, Nos. 208 and 209.</p> <p>These were two actions brought in the Court below against the same defendants, Dilworth, Porter & Co., Limited, one by George Rummell, Jr., a minor, to recover for injuries suffered through the alleged negligence of the defendants, the other by George Rummell, Sr., father of the said George Rummell, Jr., to recover for the loss of bis son’s services, and for expenses, medicine, etc., rendered necessary by the same cause.</p> <p>The negligence set up in the declaration in each case was the same, and was charged as follows: The defendants, on the 10th day. of September, 1881, had in their employ, George Rummell, Jr., as a laborer in their spike mill, in the 30th ward, city of Pittsburgh, near certain rollers, machinery and appliances in said mill. That it was defendant’s duty to furnish, keep and maintain said machinery that the same, while in motion, should be in safe and proper condition, with proper guards and lights, so that the said George might safely, and without peril to life and limb, labor and work in said mill, etc., that the defendants did not exercise due, ordinary and proper care in guarding against danger to said George and others, who worked at and near certain rollers, cogwheels, and machinery therein on said day, but wholly failed therein, especially to place and maintain at and near said cogwheels a guard to protect the plaintiff from hurt and injury; that, by reason of such failure and neglect on part of defendants, on said day and' year, the said George, a minor, while he was employed in defendants mill, near said cogwheels then in rapid motion, was injured by having his right leg caught in said cogwheels, and broken, crushed and bruised, causing him great bodily pain, and wholty disabling him from labor in defendants mill, or elsewhere, for life, so that he was unfit to labor or support himself by reason thereof.</p> <p>The defendants pleaded in each case, not guilty.</p> <p>The two cases were tried together before the same jury, when the plaintiffs proved the following case: George Rummell, Jr., was a son of George Rummell, Sr., and on the 10th day of September, 1882, was about seventeen years old. Young Rummell was employed by the defendants as “ dragger down ” in their spike mill: in that capacity it Avas his duty to drag heated pieces of billets of old iron rails out of a furnace and place them a few feet distant in a train of ten pairs rollers by which they were reduced to spikes. The rollers were so constructed that the head rollers Avere wider apart than the others as the billets passed along the train; the train was protected along its sides Avhere the cogwheels were exposed when in motion, with guard boards two feet high, extending from the second pair of rollers to the loAver end of the train, but the cogwheels of the two head pairs of rollers Avere left unprotected and the cogs were exposed when the “ draggers down ” were required to work. When a hot billet was started it would sometimes stick at the first rollers, and an appliance called a gate had to be opened to let it pass on ; this had to be done promptly, as otherwise the billet would cool and the rollers might be broken by it, and there was always another billet ready to start. The gate was betAveen the first and second rollers, where there was no guard board, and the person opening the gate would step to one side of the rollers and open the gate by throwing off a ring from the top of the two iron rods extending perpendicularly above the rollers. This done the billet would pass into, the second pair of rollers. The gate had then to be at once closed. To do this it was necessary to stand beside the cogs in rapid motion and reach over, catch the gate rods with his hands, draw them together and replace the ring. This duty was dangerous on account of the revolving cogs being exposed and the liability of the “ draggers’ ” clothing to be caught therein; had the guard boards extended three feet further, so as to cover the cogs on the first two pairs of rollers, as they did the other, the danger of being caught would have been avoided. It appeared that the duty of opening and closing the gates was more especially that of the roller boss, but that the “ draggers ” were accustomed to perform it and regarded it as part of their duty. On the day before mentioned, about 4 o’clock in the morning, while the mill was dark and not provided with sufficient light to show clearly the movements of the machinery, Rummell, who was on duty, while opening the gate had his trousers caught by the cogs, was drawn in to the machinery and had his leg terribly crushed by the revolving cogs. It also appeared by the plaintiff’s evidence that Rummell’s immediate employment was by one Richards, the roller boss, who paid him his wages, and that he had been employed in the defendants mills about five days before the day of the accident.</p> <p>The plaintiffs having rested, Collier J., on motion of the defendants entered a compulsory nonsuit in each case, which nonsuits the Court in banc refused to take off.</p> <p>The plaintiffs took these writs assigning for error the refusal of the court to take the judgments of nonsuit in each case. After the trial in the Court below George Rummell, Jr., died and the suit in his case was prosecuted by George Rummell, Sr., administrator of his son’s estate.</p>

2, of Philadelphia County: Of July Term, 1884, No. 109. This was an action of trespass on the case brought by George R. Duncan against the Pennsylvania Railroad Company, June 6th, 1881, to recover for damage done by the defendant to his real estate situate on the northeast side of Filbert street, and extending from Twenty-Third street to the Schuylkill river, Philadelphia.

<p>. Tiie Supreme Court of this Commonwealth, has power to issue a writ of certiorari to the Court of Quarter Sessions of any of the counties to remove a pending indictment and all proceedings thereon into the Supreme Court, it has the power of the Court of the King’s Bench in criminal cases.</p> <p>2. The Constitution of 1874 did not repeal the Act of 16th of June, 1836, nor the Act of 31st of March, 1860, conferring upon the Supreme Court the power to remove criminal cases into that court by certiorari.</p> <p>3. The Supreme Court has power to send a criminal case, removed into that court by certiorari, down to another comity for trial, and, if necessary, before any of the judges of the Supreme Court. Each judge of the Supreme Court has power to sit and try indictments in any county of the Commonwealth.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county : Of January Term, 1885, No. 18.</p> <p>Appeal of W. W. Winton, J. M. Chittenden and S. N. Chittenden, surviving members of the firm of Winton, Cone & Co., from a decree of said court dismissing the exceptions to and confirming absolutely the adjudication of the auditing judge, making distribution of the fund in the bands of the executors of the last will and testament of John Gibson, deceased, as shown by their third account filed April 21st, 1881.</p> <p>■In making the adjudication, Penrose, J., filed an opinion containing, inter alia, the following: The facts with regard to the claim of Winton, Cone & Co., are as follows:</p> <p>On the 13th of August, 1858, the testator, John Gibson, by instrument under seal of that date, granted, demised and let to John P. Offerman, his heirs, executors, administrators, and assigns, the right and privilege to mine, dig and carry away coal above and below water level in and from the lands of the lessor, on the east side of the Lackawanna river, in the townships of Blakely and Carbondale, Luzerne county, in the warranty names of James and Peter Ryder and William Rjmn— containing 1,050 acres, more or less; the coal to be mined and delivered to the Delaware and Hudson Canal Company, in yearly quantities, as provided for in a contract of the same date between that company and the said Offerman ; the same to be paid for at the rate of fifteen cents per ton in monthty settlements at the office of the said company in the City of Carbondale. The lessee to have the privilege of mining from such points of water level, and from such vein or veins as he might select, &c., &e. It was also agreed that the lease should not be assigned or transferred, in part or in whole, or the premises or any part thereof sublet without the consent in writing of the party of the first part, his heirs and assigns first had and obtained. It was also agreed, that the privilege- of mining thereby granted should only extend to such boundaries as “might be necessary to enable the party of the second part to fulfill his contract with the Delaware and Hudson Canal Company, and should the party of the first part grant any other lease to mine coal in any of the demised lands or on his lands on the west side of the Lackawanna river, which lease shall not interfere with the mines that may be opened by the party of the second part, the party of the second part shall have the first refusal of any such lease or leases.” The party of the second part or his assigns to have the right of way over the surface of the tracts and the free use of such portions of the same as might be necessary for the convenient prosecution of his mining operations.</p> <p>The lease to continue in force until one million of tons of 2,464 pounds shall have been mined and taken out as provided for in the said contract, between Offerman and the Delaware and Hudson Canal Company, for the delivery of coal to said company.</p> <p>The lease was acknowledged October 9, 1858.</p> <p># % # & % &</p> <p>. By instrument under seal without date, John P. Offerman assigned his lease as follows: “For and in consideration of the sum of one dollar to me in hand paid by Messrs. W. W. Winton, George Cone, J. M. Chittenden, and Samuel N. Chittenden, as well as other valuable consideration paid by them to me, I do hereby assign, transfer and set over to them, their heirs, executors, administrators and assigns the within lease and supplement and all rights I have by virtue of the same.”</p> <p>The assent of Mr. Gibson to this assignment was as follows: For valuable consideration to me in hand paid, I do hereby assent to the above assignment and transfer of the within lease and supplement, made by John P. Offerman to W. W. Win-ton, George Cone, J. M. Chittenden, and S. N. Chittenden, It being understood and agreed that the aforesaid leases are intended to cover the use of the Keystone Saw Mill, together with all the houses now erected, with the necessary surface for the same for the full time of the lease, also all the surface now enjoyed by Offerman until I may require the same for additional improvements.</p> <p>“In consenting to this agreement it is understood and agreed that all repairs required to be made to the buildings, machinery and dwelling houses except such as may be necessary from casualties that may arise by fire or otherwise shall be made by the lessees at their own proper cost and expense, and that the lessees shall, at the expiration of the lease, give full and quiet possession of all the premises hereby leased in as good order and condition as they now are, natural wear and tear or casualties that may accrue by fire or otherwise excepted.”</p> <p>It will be observed that in this paper Winton et al. are spoken.of, not as assignees, but as lessees; and that it is stipulated that at the expiration of the lease, they shall give full and quiet possession of the premises, nothing being said of a right of renewal or privilege of refusal.</p> <p>On the 24th of December, 1864, an agreement was entered into between “ W. W. Winton, J. M. Chittenden and S. N. Chittenden, surviving partners of the late firm of Winton, Gone & Company, and W. W. Winton and Dorastus Cone, administrators of the estate of George Cone, deceased, late member of said firm,” of the first part, and John Jermyn of the second part, which after reciting the lease by Mr. Gibson to Offerman, the concurrent agreement of Offerman with the Canal Company, the assignment by Offerman to Winton, Cone and the two Chittendens, “whereby all rights and privileges arising from his leasehold interest became absolutely vested in them the said W. W. Winton, George Cone, J. M. Chittenden and Samuel N. Chittenden as partners under the name and firm of Winton, Cone and Company,” and that there remained yet to be mined about 800,000 tons, provided that the said Jermyn should enter upon the property aforesaid and use and occupy the mines, gangways, &c., &c., as then established and lately operated by Winton, Cone and Company for the purpose of mining said coal as therein stipulated and for that purpose only; the said Jermyn to have such portions of the surface and all of the buildings then left that the said Winton, Cone and Company acquired by virtue of the assignment from Offerman for the unexpired term of said lease. In consideration off which Jermyn agreed to mine “the aforesaid quantity of coal at his own risk and expense” at the rate of 16-|- cents per ton of 2,240 pounds, 90,000 tons at least to be taken in each year, payments to be made monthly to the Delaware and Hudson Canal Company, ten cents per ton to be credited to John Gibson, and six and one-half cents to the credit of Winton, Cone and Company. In case of failure to mine the stipulated quantity, payments to be made therefor, nevertheless, with the right on the part of the party of the first part, in the event of failure to comply with the stipulations of the .agreement by Jermyn, to declare the lease forfeited, and take possession, Jermyn agreeing, also, to pay for the use of the surface and the buildings then left acquired by Winton, Cone and Company by the assignment from Offerman, $100 per month, payable to the Delaware and Hudson Canal Company to the credit of John Gibson and the said Winton, Cone and Company. “ When the supposed 800,000 tons shall have been mined or paid for......then all rights of the second party terminate, and the second party agrees to quit, surrender and give peaceable possession of the premises, and to return to the parties of the first part their heirs, executors, administrators, or assigns the same weight of iron, length of roads, and all fixtures, appurtenances, buildings, machinery, &c., in as good condition as when taken, natural wear and tear or casualties that may occur by fire or otherwise excepted. This reservation or exception, however, not to apply to the weight of iron, it being understood that the first party owned the gangway, roads, &c.”</p> <p>“It is further understood that the parties of the first part do not part with any prior rights of leasing mentioned in the Gibson lease.”</p> <p>This agreement was signed and sealed by W. W. Winton, J. M. Chittenden, S. N. Chittenden and the “ administrators of the estate of George Cone, deceased, late member of Winton, Cone and Company,” with the assent of the parties in interest in the estate of George Cone.</p> <p>Upon the same day (December 24th, 1864), the mules, cars and all personal property belonging to the said Winton et al, connected with the said mining operations were sold by them to Mr. Jermyn.</p> <p>■ The lease, or assignment of lease, by Winton, Cone and Company to John Jermyn was not presented to Mr. Gibson during his lifetime, nor to his executors or trustees after his death for approval. If the former are to be regarded simply as assignees of the lease of Offerman, such approval was, perhaps, unnecessary. A condition in restraint of alienation by a lessee does not extend to his assignees: Dumpor’s case, 4 Coke, 119; and the same appears to be the law in the case of a covenant: Pennant’s Case, 3 Coke, 64; Platt on Covenant, 26; 4 Kent, 124, note B. If, as would seem to be the case, the agreement of Mr. Gibson to the assignment by Offerman is to be regarded as a new and original lease to Winton, Cone and Company, the assent of the lessor to an assignment by them was certainly unnecessary.</p> <p>Mr. Gibson died, as alreadjr stated, March 11th, 1865, less than- three months after the lease or assignment by Winton, Cone and Company to Jermyn. Two years afterwards, viz: January 23d, 1867, Mr. Jermyn being then in the occupancy of the mine, Henry C. Gibson and James T. Young, styling .themselves executors of the last will and testament of John Gibson, leased “unto the said John Jermyn his heirs and assigns, one million tons of anthracite coal contained in the vein,” then “being worked by the said John Jermyn at the colliery of the said party of the first part in said townships of Blakely and Carbondale, late the property of John Gibson, deceased, lying or being on or under that certain piece or parcel of lands, situate in the townships of Blakely and Carbon-dale, County of Luzerne, State of Pennsylvania, containing 1,800 acres, more or less,” with the right to enter upon said lands, erect necessary machinery, etc., etc., the said John Jermyn covenanting to erect at a suitable location on said land, on or before the first day of January, 1868, a coal breaker with engine, machinery and apparatus sufficient for mining not less .than 100,000 tons of coal per annum ; he agreeing to mine and pay for not less than 100,000 tons per annum, provided the coal could be mined, etc., at an expense not greater than that required for mining from the mines of the Delaware and Hudson Coal Company ; with provisions for the event of “ faults ” occurring in said veins of coal, etc., etc., or for the exhaustion of the mines or the coal becoming unmerchantable in quality, etc., etc.</p> <p>The coal so taken to be paid for at the rate of ten cents per-ton of 2,240 pounds clean merchantable coal.</p> <p>It was further agreed by the lessee that he would “ work the said vein of coal upon the land hereby leased continuously, and as soon as opened, etc., etc.</p> <p>At the expiration of the lease, the lessors to purchase and pay for, at a valuation to be made by disinterested persons, the breaker, steam engine, machinery, railroad tracks, etc., etc., covenanted to be erected by the lessee for the purpose of mining under said lease.</p> <p>It was further agreed that the lease thus made should be subject to the lease or agreement between the testator and Offerman, and to a contract of even date with the lease then granted between Jermyn and the Delaware and Hudson Canal Company, such contract being similar to that made between Offerman and the Canal Company.</p> <p>This lease was duly acknowledged July, 1867, and recorded in the Recorder’s Office in Luzerne County.</p> <p>It will be observed that this lease contemplated the opening of new mines, and their simultaneous working with the openings under the Offerman lease; and that while the latter covered tracts containing only 1,059 acres, the new lease embraced 1,800 acres, more or less.</p> <p>The Offerman lease had several years yet to run, and the new lease can in no sense be regarded as a renewal of it.</p> <p>It is to be observed, also, that while the lessors style themselves “ executors ” of John Gibson, deceased, in granting this lease, they really acted as trustees. It is true the will gave the executors a power of sale; but until such power was exercised, the land would pass to the devisees, viz.: the trustees, subject to being divested by the exercise of the power: Blight v. Wright, 1 Phila., 549. It is true, also, that a power of sale may imply a power to lease; but such implication'would seem Do be repelled in the present case, as a matter of construction, by the fact that the power to lease is in express terms granted by the testatdr to the trustees.</p> <p>Under the provisions .of the lease of January 23d, 1867, Mr. Jermyn erected a breaker and machinery necessary for mining coal, and opened new mines, at an expenditure of from $75,000 to $80,000. His preparations were not completed until about January, 1868. He then began mining at the rate of 100,000 tons a year, — working at the same time, under the Offerman lease, the mining under which was completed in'1873. Thé million of tons stipulated for by the lease of 1867 were not taken out till 1878, the property in the meantime having been sold by the executors, viz.: February 1st, 1873, to the Northern Coal and Iron Company.</p> <p>More than fourteen years after the lease by the accountants to Mr. Jermyn, viz.: On the 31st of May, 1881, when the present account was called for audit, claim was, for the first time, made by Winton, Cone and Company for an alleged breach of the testator’s covenant or alleged covenant with them,— damages being stated at the sum of $150,000.</p> <p>Mr. Winton and the Messrs. Chittenden were aware of the lease made to Mr. Jermyn at or about the time of its date. Jared Chittenden was in the employ of the Delaware and Hudson Canal Company as inspector of coal, and was in almost daily communication with Mr. Jermyn. The sale made by the executors to the Northern Coal and Iron Company, which was consummated February 1st, 1873, was negotiated through "the agency of Samuel N. Chittenden, who received a commission from the executors of $10,000 for his services. At no time during the fourteen years which preceded the presentation of this claim in this court, was there any communication whatever from Winton, Cone and Company to the accountants, alleging or pretending any claim against the estate of the testator or against the executors or trustees. Nor in his personal interviews with them relative to the sale of the said lands by Mr. Chittenden, was there any suggestion by him of the existence of any such claim or allegation of a breach of covenant so far as Winton, Cone and Company were concerned. Nor did the accountants have any knowledge whatever from any source that a liability was claimed until their account was called for audit, May 31st, 1881, as already stated. The most that the claimants were able to show was that soon after the lease to Mr. Jermyn, Mr. Winton and Mr. Jared Chittenden, in a casual interview with him, had said that “ by rights they ought to have-had the new leasebut they made no complaint that it had not been given to them, nor did they say that they expected to have it, or that, if offered to them, they were in a position to take it. Mr. Cone was dead, their partnership was dissolved, their machinery and tools had all been sold to Mr. Jermyn, and Jared Chittenden was then in the employ of the Delaware and Hudson Canal Company; and it would seem clear, therefore, that if it had been offered to them, they would not have been in a position to have accepted it. The right of surviving partners to accept the lease, which would have required, under its provisions, an outlay of nearly $100,000, is perhaps more than doubtful.</p> <p>It is now claimed that the covenant of Mr. Gibson with John P. Offerman to give him the refusal of any lease to mine coal on his lands passed by the assignment to Winton, Cone, & Company; that such right remained in them after the death of Mr. Cone, notwithstanding their lease or assignment to Mr.. Jermyn; that it was the duty of the accountants to have offered the lease to them before granting it to Mr. Jermyn ; and that, without showing their own readiness or ability to accept, by reason of the failure to make such offer, the estate of the testator had become liable-to them in damages, to be measured by the difference between the amount paid by Mr. ■Jermyn, and what, as the claimants allege, the royalty was ■ worth, viz.: twenty-five cents per ton instead of ten cents as stipulated, in the lease; this difference of fifteen cents per ton, amounting upon a million of tons, to $150,000, with interest thereon from the time when they ought to have received the money as they allege, being the claim now presented.</p> <p>It must be conceded that the claim is a startling one, and that the delay in its presentation does not commend it to the' favorable consideration of a court charged with the duty of protecting the estates of dead men.</p> <p>I. The first question that arises is with reference to the jurisdiction of the Orphans’ Court to entertain such a claim at all.</p> <p>Whether a claim for damages arising from the act of a decedent himself, unliquidated and incapable of liquidation by mere arithmetical calculation, can be regarded as a debt within the meaning of the Acts of Assembly conferring jurisdiction on the Orphans’ Court to make distribution among creditors, until its amount shall have been ascertained by a jury in the courts of common law is, in the opinion of the auditing judge, a more than doubtful question.</p> <p>But it is clear that the debts in payment of which the Orphans’ Court is authorized to apply the assets of a decedent, are those contracted by himself, and which are either due (debitum in presentí solvendum in futuro) or. at least inchoate at the time of his death. At that moment, the status is fixed, and the estate becomes a trust fund for the payment of claims then existing. This is made clearer from the provision of the law with regard to the lien of debts, and limiting such lien, in the absence of suit, to five years from the decedent’s death.</p> <p>Here it is not pretended that any breach took place during, the lifetime of the testator. At his death, his lands passed by devise to his executors or his trustees. A devisee takes by purchase, and his act is no more the act of the testator than that of a purchaser of any other kind would be. In'this case, there is no covenant on the part of the testator for any one but himself. If, however, his covenant is one which runs with the land, it binds not his executors, but his heirs or devisees. If claim can be made against his estate for a breach of covenant occurring two years after his death, it can, with equal propriety, be made twenty years after. That this cannot be, is decided by Quain’s Appeal, 10 Harris, 510; Williams’s Appeal, 11 Wr., 283. It was said in this last case that the executors of a covenantor, whose covenant running with the land was broken after his death, might be sued (in common law courts), but that the judgment would be restricted .to the lands. In the present case, there could be no such judgment even in the common law courts, because the lien of claims against the decedent’s estate has expired as against his heirs and devisees: Hope v. Marshall, Leg. Int., 1881, p. 308.</p> <p>See further, as to breach of covenant-real after death of covenantor, Bland v. Umstead, 11 H., 317; Dickerson v. Callahan, 7 H., 227; Carr v. Lowry, 3 Casey, 257.</p> <p>If, as decided in these cases, the personal representatives can only be held for a breach of covenant occurring during the lifetime of their decedent, it is clear that the Orphans’ Court is not the tribunal before which this claim can be made. It was held in McBride’s Appeal, 22 P. F. S., 480, that in a proceeding for distribution in the Orphans’ Court, no one can claim but through the decedent as creditor, legatee or. next of kin. And where the wrong which is complained of is the act of the accountant and not of the decedent, the estate of the latter is not liable: Braman’s Appeal, 8 Norris, 78.</p> <p>It may be added, even if the court had jurisdiction, that so far as the lands of the decedent were concerned, the lien of any claim arising from the breach by accountants in 1867 ceased after the lapse of five years, no suit having been brought. The proceeds of such lands, when sold, therefore, after that time, must equally be discharged.</p> <p>II. But, concede the jurisdiction of the court, and the liability of a decedent’s estate for the act of an executor, has there been a breach of covenant so far as the present claimants are concerned ?</p> <p>In the lease from the testator to Offerman, while the demise is to him, “his heirs, executors, administrators, and assigns,” and the surface right of way is to him and his “assigns,” the covenant as to new leases is with him alone, without words of assignability. It might well be argued, therefore, as a matter of construction, that it was not intended that the right should pass to his assigns or be other than personal merely. If, however, the right passed by an assignment of the lease, it is simply an incident thereto, to be held by the tenant as a tenant, and inseparable from 'the tenancy. It would follow, therefore, that it was not competent for Winton, Cone & Company, when they assigned their lease to Mr. Jermyn (their lease to him of their entire interest in the mines, &c., being an assignment, though not in terms so called), to separate the incident from the principal, and afterwards claim any right thereunder from the lessor. If, as already intimated, the assent of Mr. Gibson to the assignment by Ófferman to Winton, Cone &' Company is to be regarded (not simply as an assent, but) as a new lease embracing the subject of the old one and something more, there never was at any time a right on the part of Winton, Cone & Company to a new lease; since it is there expressly stipulated that they will surrender possession at the expiration of the term.</p> <p>But if we concede the right ever to have been in the claimants and that it remained with them notwithstanding their assignment, and that the omission of the accountants to offer the new leáse to them before granting it to Mr. Jermyn constituted a breach, the damages for such breach would be nominal unless it could be shown by the claimants that they were ready, willing and able to accept it. If they were not, a tender would have been an idle ceremony. Not only were such willingness and readiness on their part not shown, but as already stated, it affirmatively appeared they were not in a position to have accepted it. It is said in Wood on Landlord and Tenant, p. 675, that where a lessor having covenanted to l’enew, has by alienation or otherwise put it out of his power to perform, the tenant must offer to perform in order to perfect his right.</p> <p>It is far from clear that the lease to Jermyn could, under any circumstances, have been regarded as a breach of the covenant with reference to new leases. The new lease, the refusal of which was to be offered to the lessee was, as the lease expressly stipulated, to be one which should “ not interfere with the mines that may be opened by the party of the second part.” With the mines thus opened in the occupation of one tenant, a new lease of mines to be opened side by side with them, would manifestly interfere; and the competition thus brought about might be destructive of the rights of the existing tenant.</p> <p>III. Let us concede, however, the jurisdiction, the right of the claimants, their readiness to perform and the breach. The question yet remains, What is the measure of damages ?</p> <p>That their rights were held by them as a firm is conclusively proved by their agreement under seal with Mr. Jermyn, which repeatedly asserts the fact. The firm having dissolved, it would have been impracticable for the liquidating partners to have carried on a business such as was contemplated by the lease. All that they could have done, therefore, was to have sold it as an asset of the firm; and it would seem, therefore, that the measure of damages, so far as they are concerned, would be the price which such an asset, if offered for sale, would have brought. ' No evidence of this kind was produced.</p> <p>Adopting, however, the standard of the claimants themselves, the auditing judge is of opinion that the evidence does not show the price agreed to be paid by Mr. Jermyil by the lease of 1867 to be less than what, at that time, could have been obtained.</p> <p>It is true that a number of highly respectable witnesses having a greater or less knowledge of coal operations, were called by claimants and testified that in their opinion a royalty, such as that given by the lease to Mr. Jermyn, was worth 25 cents per ton ; but it is manifest, from the cross-examination of these witnesses, that their knowledge of the condition of this particular property, or the value of royalty at the time the lease was made, was not such as to render their opinions valuable, especially when opposed by the facts which they themselves mention, and by the conduct of the claimants. No evidence is more calculated to mislead than that of experts giving their opinion as to the value of royalty. Royalty, or as it is sometimes called, coal or ore leave, is a price paid for the privilege of raising coal or ore. Manifestly, it can have no fixed value, but must depend on the quality of the coal or ore, the facility for mining, the locality, amount of pumping required, proximity and accessibility to market, &c., &c. This is well illustrated by the testimony of Judge Hand, a witness on the part of claimants, who stated in his cross-examination, that in the Lackawanna region, in the vicinity of the Jermyn mines, the price of royalty varied from eight to twenty-five cents, the causes of the difference being.a greater or less ease of mining, the fact of the mines being above or below water level, and, to some extent, the state of the market at the time when the lease was made. Another of claimants’ witnesses, John R. Davis, stated in his cross-examination that while at one mine he paid a royalty of 12-|- cents, at another on the same property and adjoining it, he paid a royalty of 22 cents. Under a lease made in 1857 and renewed in 1869, of a vein of Archbald, two miles from the Gibson property, and believed to be the same vein, Edward Jones, another witness of claimants, paid a royalty of 14 cents per ton — the greater part of his mines being above water level, and the lessor being bound to pay for the cost of breaker at the expiration of the lease. The Gibson mines are all below the water level. Judge Lewis Jones, another witness of claimants, in his cross-examination testified that prior to 1870, few leases were made. That in 1872 and 1878 there was more activity, but before that it was “pretty dull.”</p> <p>' It would appear from the evidence that there had been for some time past a gradual appreciation in the values of royalty. But that this was not always the case is'shown by the papers now before the court. Under the original lease in 1858, by Mr. Gibson to Mr. Offerman, the royalty stipulated for was 15 cents; 'while, under the supplemental agreement made in March, 1862, the rate was reduced to 10 cents per ton, though the price of coal had increased from 82| cents per ton to 90-^ cents.</p> <p>The claimants themselves assigned to Mr. Jermyn an open mine in working operation requiring the erection of no breaker or machinery, and involving the risk of little-or no capital, at a royalty of 16£ cents per ton. The lease of the accountants to Mr. Jermyn of an unopened mine, at a royalty of 10 cents per ton, when the covenant to erect machinery costing from $75,000 to $80,000 is taken into consideration, requires the amount to be paid for a million of tons to be from 17|- cents to 18-|- cents per ton.</p> <p>Upon the subject of values we have the testimony of Mr. Jermyn himself, an entirely disinterested witness, having a thorough knowledge of the very property in question. Speaking of the lease of the Archbald' property, to which allusion has been made above, where the rate paid was 14 cents per ton, he explained that the reason for the difference in the sum to be paid by him was that the Archbald mine was above water level, while his was below. He added positively that he would not have given more than 10 cents a ton for his lease; “I would not do so”’ he stated, “becauseI think there was not anything more in it. We were at the mercy of the Delaware & Hudson Canal Co., and they could do as they pleased. They could take our coal or not; they could make a contract, and after they made the contract they would not carry it out. They gave us cars whenever they pleased, and gave us just such prices as they pleased. After they made a lease with'us they would not carry it out. The last lease I made was with the president of the Northerrn Coal and Iron Company, which was an offspring of the Delaware & Hudson Canal Company. Those are the reasons I would not give more than I had agreed to give, because we could not get the price for it.”</p> <p>If the evidence on this subject were really conflicting, the conduct of the claimants themselves would turn the scale. Every presumption, both of law and fact, is to be made against one who delays his claim for a period of fourteen years. Three years after the date of the alleged breach of covenant, and five years after the death of the testator, a second account was filed by his executors. If the court has jurisdiction now, it had it no less then, yet no claim was presented. Two years later, the mines themselves were sold by the accountants. One of the claimants negotiated the sale, was in communication with the executors, and received commissions amounting to $10,000 for his services. "While the money was in their hands, it would have been natural to have asked for payment of the amount due for the breach of covenant occurring six years before. Brit no such claim was made, no Avas there any hint or suggestion of its existence then or during the eight years thereafter, Avhich preceded the presentation of the claim in this court.</p> <p>The silence and acts of the claimants may not amount to an estoppel, but they are convincing evidence that their claim never had a real existence.</p> <p>The claim of Winton, Cone & Company is disallowed.</p> <p>The balance shown by the account is awarded, after payment of clerk’s fees, as to six sevenths thereof to Henry C. Gibson and James T. Young, trustees under said will, and as to one seventh to the same persons as guardians of the children of Charles M. Gibson, deceased.</p> <p>To this adjudication exceptions Avere filed which were dismissed, and to their dismissal this appeal was taken.</p>

<p>1. íf a respectable citizen honestly believes and states, that a candidate for a public office is guilty of official misconduct or is a person of evil repute, in the sense that it affects his fitness for the office which lie seeks, such statement is privileged and may be repeated by another in a meeting assembled to inquire into the merits of the candidates, though ' it be absolutely false, and upon inquiry its falsity might have been ascertained, without being liable in an action for libel; for the voter has the right to canvass and discuss the qualifications of the candidates who seek his suffrage openly and freely.</p> <p>2. A communication to be privileged must be made upon a proper occasion, from a proper motive and must be based upon reasonable or probable cause. When so made in good faith the law does not imply malice from the communication itself as in the ordinary case of libel. Actual malice must be proved before there can be a recovery, and in the absence of such proof a nonsuit should be-granted. '</p> <p>3. Whether a communication be privileged or not, is a question for the . court, not for the jtay.</p> <p>[This case was argued in the Supreme Court, January 6th, 1835, Clark, J., absent. On January 26th, 1885, the court ordered a re-argument before a full bench. It was re-argued January 6th, 1886. The opinion of the court and the dissenting opinion were delivered January 25th, 1886. Rep.]</p>

<p>1. If an employer tabes reasonable care to provide a safe room for his employees to work in, it is all the law requires of him, and if an employee has knowledge that the room is unsafe, and in the course of his employment continues to use it without notifying his employer of its unsafe condition, and without asking him to repair or remedy it, he . voluntarily accepts the risk, and cannot, in ease of injúry from such cause, recover damages therefor.</p> <p>2. An employer is not to be held to a rule which would prevent the possibility of an accident. To leave a small hole in the floor useful for the purposes for which the room is used, and not in the ordinary line of travel, partially unprotected for a few days while changes and repairs in the room are being; made, is not evidence oAsuch negligence as would enable an employee, assisting in makiifg the changes, to recover for injuries sustained by falling into said hole.</p> <p>3. Where none of the essential facts in a case are in dispute, the defendant has the right to call upon the court to declare the law in relation thereto, and to direct the jury as to what verdict they shall render.</p>

<p>1. S.o long as a railroad company makes it safe for tlie public to cross its road on tbe public highway by gates, watchmen or other means, it may run its trains at any rate of speed over such crossings; but if it neglects to use every precaution necessary for the safety of the public, no moderation or slowness of speed will excuse its neglect.</p> <p>2. Negligence is want of ordinary care under the circumstances. No fixed rule of duty applicable to all cases can be established. When the standard of duty shifts not according to any certain rule, but with the facts and circumstances developed at the trial, what constitutes negligence cannot be determined by the court, but must be submitted to the jury. When a duty is defined,a failure to perforin it is negligence, and may be so declared by the court.</p> <p>3. Detached portions of the charge of the court, and especially only a part of a sentence, should not be assigned for error. They should be read in their connection with other parts of the charge, and with the charge as a whole. If the charge as a whole is a correct and adequate presentation of the case to the jury it will be affirmed.</p>

<p>If one contracts to furnish mill machinery to another, to he paid for in full, “ when the machinery has been run thirty days and proves satisfactory,” and after .a trial of four, or five days the machinery proves to he wasteful of’ grain, and inadequate to do the work for which it was ' sold, the purchaser need not allow further trial at a loss of time and a - waste of grain to himself. The contractor cannot recover,*if the purchaser rescinds the contract, for this reason,'and returns the machinery.</p>

<p>Error to the Court of Common Pleas No. 3, of Philadelphia county: Of January Term, 1885, No. 95.</p> <p>This was an action of assumpsit brought May 3d, 1879, by John T. Fowler trading as John T. Fowler & Co. against George W. Arms and John H. Schaeffer, late trading as Arms & Schaeffer. The Sheriff served John H. Schaeffer and returned “nihil habet” as to George Arms who had died before the suit was brought.</p> <p>The narr alleged the drawing of a certain bill of exchange by one Christian Sharer, on February 27th, 1877, for $522.01, which the defendants accepted, payable on April 1st, 1877, and thereby became liable to pay the said amount to the plaintiff; it also contained the common counts. John H. Schaeffer who appeared alone as defendant, pleaded non assumpsit, payment, with leave, etc.; he also filed an affidavit, under the rule of court denying the existence of any partnership with Arms, the co-defendant, under the name of Arms & Schaeffer or any other name, in relation to the subject matter of the action, to wit, the draft upon which the suit was brought. The plaintiff replied non solvit and issue.</p> <p>On the trial before Finletter, J. the facts appeared as follows :—</p> <p>The action was brought by the plaintiff on the following instrument:—</p> <p>Hannah Furnace, Feb. 27th, 1877.</p> <p>Messrs Arms & Schaeffer. Please pay to the order of John T. Fowler & Co., five hundred and twenty-two dollars, and charge the same to my account. $522.01.</p> <p>Christian Sharer.</p> <p>[Indorsed.]</p> <p>Accepted. Geo. H. Arms, for Arms & Schaefer. Payable. April 1st, 1877.</p> <p>The question of the consideration for the same depended on the following facts:</p> <p>Christian Sharer, the drawer, owned a farm in Center county, on which there was an old mine, or “ hole in the ground,” supposed to contain silver; he entered into a written agreement, to sell the farm to Messrs Arms & Schaeffer. This agreement was produced by the defendant, Schaeffer; it was dated February 24th, 1877, and executed under seal of the parties individually; the consideration was $1,500, of which $250 was paid at the execution; the balance was to be paid on or before April 1st, 1877 ; the quantity of land was said to be 170 acres, more or less; 20 acres were to be re-conveyed to Sharer, reserving the mineral rights. On March 31st, 1877, a supplemental agreement was entered into by the same parties, also individually, by which the time for the delivery of the deed was extended to April 20tb, 1877, and it was provided that the tract should be surveyed and payment made at the rate of $9 per acre for the number of acres so found. It was not disputed that the reason of the delay and for this supplemental agreement was the suspicious character of the warrant and letters-patent in Sharer’s title which made it doubtful whether the “ old mine ” was really on his farm. The evidence fails to show that Sharer made any attempt, to comply with the terms of the supplemental agreement, although the defendants’ attorney was ready to make payment upon such compliance. No deed was ever delivered to either of the defendants.</p> <p>At the date of this agreement, February 24th, 1877, John T. Fowler, the defendant in error, held certain judgments against Christian Sharer in the Court of Common Pleas, of Centre county, aggregating $522.01, which were subsisting liens on the property sold to Arms & Schaeffer under the agreement of February 27th, 1877.</p> <p>Fowler agreed with Sharer that he would accept an order on Arms & Schaeffer, who owed him the balance of the purchase money on said property, and would credit him with the proceeds on the judgments.</p> <p>The defendant offered to prove that the plaintiff was not a bona fide holder of the draft for value; that the consideration for the acceptance of the order in question failed between the original parties; that Fowlev had notice at the drawing and acceptance that the draft was only a part payment of purchase money of land sold by the drawer to George H. Arms and John H. Schaeffer as tenants in common, and that the sale of the land fell through on account of defects in Sharer’s title; that Fowler was not a bona fide holder for value of the draft, and that therefore the draft became of no value in the hands of Fowler who had knowledge of the transactions, and took the draft subject to the equities. Objected to. Exception. (First assignment of error.) '</p> <p>The defendant presented, inter alia, the following points:</p> <p>2. If the jury find from the evidence that the order was accepted by George H. Arms, in part payment of the purchase money of certain land without the express authority of Schaeffer, Schaeffer would not be bound by the acceptance, and the verdict should be for the defendant. Answer, refused. ■ Exception for defendant. (Second assignment of error.)</p> <p>3. If the jury find from the evidence that the plaintiff gave no consideration for this draft, then he is not entitled to recover thereon, and the verdict should be for the defendant. Answer, refused. Exception for defendant. (Third assignment of error.)</p> <p>4. If the jury find from the evidence that the defendant and Arms were acting together in the purchase of a particular tract of land to be used for mining and farming purposes, and that Arms accepted this draft before the land was purchased, and without the express authority of Schaeffer, then the plaintiff is not entitled to recover, and the verdict should be for the defendant. Answer, refused. Exception for defendant. (Fourth assignment of error.)</p> <p>5. If the jury find from the evidence that the defendant has given prima.fade evidence of the absence of any original consideration for the order or draft in question, then the burden of proving the consideration is cast upon the plaintiff as payee; and unless the evidence produced by him shall have satisfied the jury that there was a valuable consideration given for the order or draft, the verdict should be for the defendant. Answer, refused. Exception for defendant.</p> <p>The general charge of the court was as follows:</p> <p>I have, by ruling out certain testimony, relieved you of some of the questions which have been discussed. The plaintiff claims upon a draft drawn by Christian Sharer in favor of John T. Fowler & Co., upon Messrs. Arms & Schaeffer. This draft is accepted in the following words: “Accepted. Geo. H. Arms, for Arms & Schaeffer, payable April 1st, 1877.”</p> <p>[The only question for your consideration is, Piad Arms authority to accept the draft for Arms & Schaeffer ?]</p> <p>Pie would have no authority to accept in this form unless he and Schaeffer were in partnership.</p> <p>The plaintiffs must establish this partnership before they-can recover.</p> <p>Partnership may be created in many ways :</p> <p>1. By the written declarations of the parties.</p> <p>2. By the oral declarations of the parties.</p> <p>3. By the acts of the parties.</p> <p>[A partnership may be general or restricted. It may be for doing all things possible, and it'may be for a single enterprise. Whatever it may be for, or. however it may be created, the one partner has the right to bind the others in all matters pertaining to business or enterprise in which they may be engaged.]</p> <p>[The admitted facts in this case are:</p> <p>1. “That they had entered into articles of agreement for the purchase of a tract of land for the purpose of mining for silver, and paid $250 on account of the purchase.</p> <p>2. That they took possession of the land and worked the old mine, and made experiments upon the land.</p> <p>"3. That they were at the mine together two or three times.</p> <p>4. That they together paid the expenses of mining the land.]</p> <p>In this case there is no evidence of any written articles of co-partnership.</p> <p>The partnership must be found, if found at all in the acts of the parties and in their declarations and conversations.</p> <p>[Whenever parties are engaged in a common enterprise they are presumed to be partners in that enterprise until the contrary appears in evidence. If the evidence shows that Arms & Schaeffer were engaged in a common enterprise, and the draft was accepted in furtherance of that enterprise, then Arms had a right to accept for himself and Schaeffer.]</p> <p>What were the declarations of the parties ?</p> <p>The plaintiff has shown by several witnesses :</p> <p>1. That they spoke of each other as partners.</p> <p>2. They spoke of the business as the business of both.</p> <p>3. They acted together in the purchase of the land and working the land.</p> <p>4. They both spoke of this draft after the acceptance as their draft; as a draft they had to pay.</p> <p>If this evidence is believed it establishes a co-partnership, and fixes the liability of Arms & Schaeffer. •</p> <p>This evidence is met only by the evidence of Schaeffer, who says he never was in partnership with Arms.</p> <p>He does not, however, that I recollect, deny any of the acts or declarations mentioned by the witnesses for the plaintiff.</p> <p>If there was no partnership, Arms, had no authority to accept the draft without the express authority of Schaeffer.</p> <p>If, however, the draft was accepted without authority, but acquiesced in afterwards by Schaeffer, that would make both Arms and Schaeffer responsible upon the draft.</p> <p>There is some evidence upon this subject which the jury will consider, if they find that there was no partnership. If there was a partnership it will not be necessary to consider this evidence.</p> <p>As one of the witnesses testified that Arms said to Schaeffer, “ The draft is due,” and that they went to the bank to have the bank extend the time of payment to the 20th of April.</p> <p>To recover, the plaintiff must show either that there was a partnership between Arms & Schaeffer, or that Schaeffer acquiesced in the acceptance.</p> <p>If they have established neither of them, the verdict must be for the defendant.</p> <p>Verdict for the plaintiff for $748.04, and thereupon judgment, whereupon the defendant took this writ, assigning for error the rejection of his offer of evidence as set forth in the first assignment of error above, the refusal of his points, and those portions of the general charge included within the brackets.</p>

<p>Appeal from the Orphans’ Court of Philadelphia County-: Of January Term, 1885, No. 178.</p> <p>Appeal from a decree of said court sustaining exceptions to the adjudication of the Auditing Judge in the distribution of the estate of Joseph Heathcote, deceased, Benjamin Sharp executor, amounting to 19,236.18, and making a final adjudication of the same.</p> <p>The facts of the case sufficiently appear from the opinion of the Auditing Judge, Hanna, P. J., and the opinion of the court, delivered by Penrose, J., in sustaining exceptions to the adjudication of the Auditing Judge.</p> <p>The following is the opinion of the Auditing Judge :</p> <p>Testator died April -11th, 1883, in England, he being there on a visit. On May 4th, 1883, his last will and testament, dated December 13th, 1881, with a codicil dated May 18th, 1882, was duly admitted to probate in the register’s office of this county.</p> <p>Testator left neither widow nor children, his wife having-died December 4th, 1881. By his said will he bequeathed and devised to his brother, Thomas Heathcote, of London, England, absolutely one full half part of his entire estate. Out of the remaining half part he bequeathed to his niece, Maud Heathcote, five thousand dollars; to his sister, Sophia Brockelhurst, one thousand dollars; and to his niece, Annie Walls, his sisters-in-law, Clara Appleton and Annie Cox, and Iris brothers-in-law, George Pearson, Robert Pearson and Alfred Pearson, each two hundred and fifty dollars ; and to his brother, Thomas Heathcote, all the rest and residue of his estate. By the codicil testator bequeathed all the property and estate which he may acquire and take under the will of Clara Appleton, sister of his deceased wife, unto Samuel Appleton, husband of said Clara Appleton. The following claims were presented against the estate :</p> <p>First. That of Mrs. Annie Walls to recover upon a contract alleged, to have been made by testator in consideration of services rendered, and to be rendered by her to himself and wife, to amply provide for her by will so that she should never want as long as she lived. The claim was objected to.</p> <p>From the evidence presented in support of the claim it appeared that testator and his wife, together with the claimant and her mother, came to this country from England nearly thirty years ago.</p> <p>Claimant was a niece of testator’s wife, and then a child about six years of age. Her mother and testator’s wife were sisters. Testator and his wife had no children, and becoming attached to claimant they took her into their family to educate, clothe and maintain as their own child. They sent her to school until she was about twelve years of age. ' Testator’s wife in the meantime carried on the business of a dressmaker, and as claimant had grown old enough to be useful in the work of the household, she was taken from school and required to perform the labor and services of a domestic servant. It did not appear that any regularly employed servant did the work of the household for any length of time after claimant was taken from school. Nor did it appear that she ever received any compensation or wages in addition to her clothing and maintenance. Testator’s wife was severe and exacting in the treatment of her niece, and on one occasion when the latter was about fourteen years of age severely punished her, when her mother entered the house and protested against such treatment of her child, and declared she would not permit it, and would take her away. Testator was present and pacified claimant’s mother by stating that if she would permit her to remain with him and his wife he would see that she was treated differently; that she should have a good home as long as he lived, and at his death he would provide for her, and that she should never want as long as she lived.</p> <p>In consequence of these statements and promises claimant was permitted by her mother to remain, and she continued to live with testator and wife, performing all the household work, and in addition assisting testator’s wife in her business by sewing at night after the domestic labor of the day, continuously, except during the interval of a visit to England with testator and wife until the 3’ear 1873, when claimant married, and testator and his wife again visited England. Upon their return to this county they again commenced housekeeping, and claimant, although married, returned to their home and performed the services of a domestic. Her husband being a seaman was frequently absent. This was repeated frequently during the 3rears subsequent to the marriage of claimant, and the testator and wife on many occasions expressed their gratitude for the services of claimant bestowed upon them. The former more than once declared his intention of providing liberally for claimant in consideration of what she had done, and promised so to do, not only in her presence but to other persons who communicated to her the declarations made by him, and also those of his wife, ratified and adopted by him. Notwithstanding these promises and assurances testator on December 13th, 1881, executed his will, bequeathing to claimant only the sum of two hundred and fifty dollars, his wife having died a few days prior to the date of the will. On June 26th, 1882, he sailed for England, and died there April 11th, 1883.</p> <p>This claim is not to recover for the services of claimant rendered to testator and his wife, as a domestic servant, upon a quantum meruit; nor is it brought to recover upon a promise to leave her a legacy. Both of which positions could not be sustained. But it is a claim to recover damages for the non-performance of a promise and agreement of testator, in consideration of which claimant rendered during a series of years valuable and meritorious services. And that contract, as proved, was not only to amply compensate claimant, but to such an extent “ that she should never want as long as she lived.” The making of the original promise was proved b3r a single witness, it is true, but she was reliable, trustworthy, disinterested and unimpeached. She is corroborated by proof of subsequent declarations and acknowledgments of such a promise made both by the testator and 1ns wife ; those b}r the latter communicated to him and adopted by him. The3r were repeated after claimant had married and left the house of testator, and after the greater part of the services had' been rendered by her.</p> <p>The promise and undertaking having been proved, it is next to be considered whether it is of sufficient certainty and precision to be enforced.</p> <p>There is no question that the consideration required of claimant was given. She remained in the service of testator long after she attained her majority. The promise is not indefinite and uncertain as in Graham v. Graham, 10 Casey 475, which was a promise to leave to the plaintiff “ as much as to any relation on earth,” but is analogous to that in Thompson v. Stephens, 21 P. F. S. 161, where the promise was if she would stay with him as long as he lived he would provide and give her full and plenty after he was gone so that she need not work.” And this was held sufficiently certain and definite.</p> <p>Again, in Cottrell’s Estate, 2 W. N. C. 237, where the claimant rendered the testator services as a nurse and attendant, and in consideration of which he promised to leave her “ independent rich,” and that “ lie would take care of her and leave her in good circumstance's after his death,” the court held the contract sufficient to support an award in favor of the claimant.</p> <p>The present case is distinguished from Pollock v. Ray, 4 Norris 428. In that case, Sharswood, J.. who also wrote the opinion of the court in Thompson v. Stevens, said “ All the declarations proved were only indicative of an intention to leave the plaintiff a legacy — to provide for her by will.” It was not attempted to prove any contract by the testator, or that any services were rendered in pursuance of a contract. And in regard to the promise in this case by testator, it would be equally valid if made after the services had been performed. Snyder v. Castor’s Admr., 4 Yeates 353, approved in Thompson v. Stevens.</p> <p>The Auditing Judge is consequently of opinion that the claimant has proved such a contract as can be enforced. This being the case the next question is, what amount shall be awarded to her for non-compliance by testator with his agreement and contract. This was to provide-for her at his death, “ that she should never want as long as she lived.” There was no evidence upon the subject, but the evident intention of testator was to provide for her a reasonable livelihood,.having in view the magnitude of his own estate, and the probable station in life of claimant. He intended to keep her from penury and want.</p> <p>By analogy to the cases upon the subject in view of testator’s bequest to his niece mentioned in the will, and all the circumstances developed by the evidence, the Auditing Judge has reached the conclusion that the sum of five thousand dollars would be a fair and reasonable amount to award claimant as full compensation, and the same is accordingly awarded to her. It is not overlooked that testator bequeathed the claimant the sum of two hundred and fifty dollars. But this was a gratuity, and not in payment to claimaut in performance of his contract and agreement to provide for her.</p> <p>Exceptions were filed to the adjudication allowing Annie Walls five thousand dollars.</p> <p>The following is the opinion of the court, delivered by Penrose, J., sustaining the exception:</p> <p>It is perfectly well settled that an action will lie against the estate of a decedent for breach of an agreement to make provision by will for one who, at the request of the promiser, has performed services for him; and that compensation may also be demanded where the claim is not barred by the Statute of Limitations for services rendered by request, even if the person rendering them did so in expectation of a legacy: Addison on Contracts, *53; Roberts v. Swift, 1 Yeates 209; Thompson v. Stevens, 21 P. F. S., 161, etc. It is different, of course, where services have been rendered without request, in the hope of receiving a legacy, and where, consequently, there is no contract whatever on the part of the party receiving them. But, as was said by Judge Strong in Graham v. Graham, 10 Casey 481, such cases are “ always dangerous, and, when they rest upon parol evidence, they should be strictly scanned. Especially wdren an attempt is made, under cover of a parol contract, to effect a distribution different from that which the law makes, or that which the decedent has directed by his will, should it meet with no favor in a court of law. .....Such contract may be enforced only when it is clearly proved by direct and positive testimonjq and where its terms are definite and certain.”</p> <p>In the case now under consideration, Mrs. Walls, the claimant, was brought to this country when a young child by the decedent, of whose wife she was the niece. She remained with him as a member of his family for about eighteen years, when she married and removed to her husband’s home in Vineland, N. J., though' at various subsequent times she returned with one or more of her children, and made visits of greater or less duration. Her marriage took place about ten years before the decedent’s death. The parties appear to have been in comparatively humble circumstances; and when the claimant, who was only six years of age when she became a member of the family, grew old enough, she assisted her aunt in doing the work of the house, and finally, it would seem, during the latter years of her stay attended to it altogether herself. She now claims that the decedent promised, in consideration of her services, and of her remaining with him for the time she did, to make such provision for her by his will as would support her for life.</p> <p>' The only evidence of anything like an express contract on the part of the decedent to compensate the services thus rendered is found in the testimony of Mrs. Dukes, the material parts of which are as follows : “ I knew Mr. and Mrs. Heath-cote during their lifetime. My former occupation was dressmaking ; I learned my trade with Mrs. Heathcote. I lived in the house with them for seven or éight years. I did the work of the house until Annie was twelve years old, when she was taken away'from school and had- to do it. She continued to do that until she was married. I left there in 1864. She was about fourteen years of age then. I heard an interview between her mother and Mr. Heathcote, in reference to Annie, a week or two before I left......Her aunt had been beating her, and her mother came in and she said she would take her away; that she would not have her daughter treated that way; that she had been made a slave of all her life ever since she was there. Her uncle stepped up and said if she should let her stay that things would be different; that she would have a good home as long as he lived, and at his death he would provide for her; that she should never want as long as she lived. Annie’s mother agreed to let her stay, and she stayed until she was married. After I left, Annie had to do the housework and sew, too......This conversation occurred about twenty years ago.”</p> <p>Assuming that the testimony of the witness as to what had thus been said twenty years before was entirely accurate, and that the claimant, upon becoming of age, might avail herself of a contract made for her during her minority, it still remains that, to entitle her to its benefits, her own part of the contract must be fully performed. Bearing in mind the principles already stated which govern cases of this character, the fair interpretation of the contract testified to is that the claimant should “stay with” the decedent as long as he lived as the consideration of his promise to furnish her with a home while he lived and provide for her at his death. She did not do this, but left him and went to her own home, where she resided at the time of his wife’s death and of his own. Having thus voluntarily put an end to the contract the obligation ceased, and neither party was bound by it any longer. Compensation for services theretofore rendered, if it could be demanded at all, could only have been under a quantum meruit upon an implied contract; and such claim, when the decedent died, was barred by the Statute of Limitations.</p> <p>The case thus, it would seem, becomes identical with Pollock v. Ray, 4 Norris, 428, where a similar claim was rejected by the Supreme Court.</p> <p>That the parties themselves, eight years after the occurrence related by Mrs. Dukes, regarded the decedent as under no obligation, is demonstrated by the evidence, of Dr. Ingraham, who was also called as a.witness by Mrs. Walls, the claimant. In 1872 or 1873, it was supposed that her mother, Mrs. Elkton, was about to die, and Mrs. Heathcote, having been telegraphed for, went to Vineland. Finding her in great distress of mind, Mrs. Heathcote asked her the cause. ■ Her reply was that it was because of her great anxiety as to what would become of her daughter, who, in the event of her death, “ would be left without any means for her sustenance or anything of that sort.” To this Mrs. Heathcote answered, “ If that is all, you need .not trouble yourself, Annie will be provided for amply. Mr. Heathcote and I have agreed that this shall be seen to, that Annie will be cared for.” “This,” Dr. Ingraham testified, “ seemed to quiet Mrs. Elkton very much, and she subsequently recovered from her sickness, not dying for a considerable length of time after that, and then of a different disease.”</p> <p>There is here no suggestion,.on the part of either the mother or Mrs. Heathcote, that the decedent was already bound by a contract, such as that spoken of- by Mrs. Dukes, to “ provide a good home for Annie as long as he lived, and at his death to provide for her so that she should never want while she lived ; ” and the distress of mind on the part of the mother is wholly incompatible with the idea of the existence at that time of such a contract. What Mrs. Heathcote said was simply indicative of a voluntary undertaking on the part of herself and husband that the child of a dying sister should be “ cared for.”</p> <p>Four years later, as Dr. Ingraham further testified, the decedent said to him while attending Mrs. Heathcote, who was then very ill, “ My God! what am I to do ? If my wife is taken away, what is to become of me ? Annie is married, and she cannot come and take care of me any further.” He said, at the same' time, that he was extremely sorry she could not come, as she had been with them for a long time, having been raised by them, and they owed her a debt of gratitude, which he did not know that money could repay, but he meant to compensate her for it......That he would see that she was amply provided for......He said that he and his wife felt bound by every consideration, moral and otherwise, to compensate Annie for the services she had rendered/and the great deal of care she had taken in their behalf during the time she lived with them......He was feeling very badly, not knowing that his wife was not going to die, and regretting extremely that Annie’s condition was such that she could not come to his house and take, care of it as formerly.”</p> <p>This was in 1876. It certainly shows nothing like a recognition of any legal obligation to provide for the claimant, but a mere gratuitous intention to do so in discharge of a “ debt of gratitude.” It does show, moreover, that Annie had left him, and that she “could not come to his house and take care of it as formerly.”</p> <p>Tn 1882 the subject was again spoken of in a conversation with Dr. Ingraham, the occasion being the uneasiness of the decedent with regard to the appearance of ill health manifested by Mr. Walls, the husband of the claimant. What he then said was, “that he did not feel ready to make any provision for Mr. Walls, but he was going to do so for Mrs. Walls. .....He was very frank in the expression of making ample provision for Mrs. Walls.”</p> <p>Henry Cox, another witness, testifies that the decedent, when his wife narrated to him what had occurred upon the occasion of her visit to Mrs. Elkton at the time of her sickness, spoken of by Dr. Ingraham, replied: “We will attend to the little girl, and see that she never wants as long as she lives. When I am gone I will take care of her.” The same witness testifies that he frequently heard the decedent declare that he “ would look out for Annie after he died ; that she should always be cared for.” Another witness, Mrs. Bentley, said that, in a conversation with her in 1876, with regard to the precarious occupation of Mr. Walls, who was a sailor, the decedent exclaimed : “ Poor girl, I w.ill take care of her while I live, and at my death she is amply provided for, she and her child.” And his wife coming in and asking what he was talking about, he said: “ I was just telling her that we will provide for Annie during our lifetime, and at our death she is provided for......I told Annie and her mother, and they both know. She has been a faithful girl to us and done all tire work.”</p> <p>The only remaining witness, Mrs. Blakemore, testified that Mr. Heathcote and Mrs. Heathcote “ always said they would never see Annie or her children want for anything...... They would frequently say.....You know Annie was always a good little girl to us, and we will never see Annie want or her children.”</p> <p>All of this testimony shows nothing more than a voluntary intention, not the result of any legal obligation, either to make a testamentary provision, or that such provision had actually been made. Her children, as to whom it is not pretended there was any contract, are coupled, as some of the witnesses sajq with the claimant in the references made to the subject by the decedent. There was nothing to prevent a subsequent change of intention, whether the will was only contemplated or had. actually be.en executed. Nor could anything be more vague and indefinite and incapable of measurement than the expressions attributed to the decedent that he would “look out for” Annie, or that she should “always be cared for,” or “ amply provided for,” &c.</p> <p>The entire testimony on the part of the claimant has thus been carefully gone over, and we have been forced to the conclusion that it does not come up to the standard required by the authorities in the class of eases to which the claim belongs. Both “the quality and sum” of the evidence, as was said in Pollock v. Ray, supra, “were insufficient to establish it,” and the exception to its allowance must therefore be sustained.</p> <p>It was said in Harbold’s Executors v. Kuntz, 4 Har., 214, that “ admissions are the easiest mode of testimony to lead to error, the kind of evidence most apt to be misapprehended and mistaken, and in relation to which a facile conscience may stretch itself like India rubber.” Such evidence is particularly dangerous when offered in support of claims against the .estates of dead men, and thé witnesses undertake to detail conversations occurring many years before, and relating to matters in which they had no personal interest.</p> <p>The disallowance of the claim of Mrs. Walls will leave a balance for distribution, subject to the payment of collateral inheritance tax, and the account will therefore have to be referred back for further proceeding. An opportunity will then be afforded to the accountant to ask for compensation, the omission of which in the account was not called to the attention of the Auditing Judge.</p> <p>Exceptions sustained to the extent indicated, and account referred back to the Auditing Judge for further proceeding.</p> <p>Final distribution was made in accordance with the above opinion of the court; whereupon Annie E; Walls took this appeal, assigning for error, inter alia, the decree of the court disallowing her claim for services, and sustaining the exceptions to the adjudication of the Auditing Judge distributing to her $5,000.</p>

1, of Philadelphia county: Of January Term, 1885, No. 193. Assumpsit b}^ James Nugent against Frank Wolfe, brought 5th of October, 1882, upon a parol promise by Wolfe to Nu-gent, that if he, Nugent, would go security for stay of execution for another, he, the said Wolfe, would indemnify and save him harmless from any loss or liability, and from paying anything by reason of his so going security.

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term, 1883, No. 200.</p> <p>This was an action of assumpsit by Charles W. Kremer trading as C. W. Kremer & Co., against Joseph P. Reed, James L. Crane and John B. Watson, now or late trading as Reed, Crane & Co. Plea, non-assumpsit.</p> <p>Under the rule of the court an affidavit being filed by John B. Watson denying the partnership, the issue also raised the question of partnership between the three defendants. In fact this was the only point tried, as the other defendants admitted the liability, and the only party defending, Watson rested his defence on the denial of the partnership. On the trial of the ease before Pierce, J., the following facts ap-' peared:</p> <p>In April, 1878, Reed, Crane & Co. formed a partnership for trading in Para, Brazil. J. P. Reed and James L. Crane were then the partners. Crane resided in Para, Reed in Philadelphia. J. P. Reed and Kremer the plaintiff also had a commercial house in Philadelphia, the firm of which was J. P. Reed & Co.</p> <p>In July, 1878, J. P. Reed & Co. made a contract with Watson to employ him as a general manager, receiving a sum equal to thirty per cent, of the profits.</p> <p>In the following October a.similar agreement between Reed, Crane & Co. and Watson was drawn and executed by Reed for himself and Crane, but without authority from Crane, and by Watson. This paper was sent out to Crane for signature, who declined signing till he came to Philadelphia in 1879, when he signed it after discussing the meaning and effect with Watson. The following is the agreement:</p> <p>Philadelphia, October 18th, 1879.</p> <p>Received from John B. Watson twenty-five hundred dollars for account, Reed, Crane & Co., Para, Brazil, paid during the year 1879. Joseph P. Reed.</p> <p>Memorandum of agreement between Joseph P. Reed and James L. Crane, trading as Reed, Crane & Co., Para, Brazil, and John B. Watson of Philadelphia, United States of America. Reed, Crane & Co. agree to employ John B. Watson, during the term of their co-partnership as per agreement dated first day of April, 1878 (copy of same attached), to give a general supervision to their business in Philadelphia, but not requiring him to leave that city, nor to do anything that will interfere with his own business, nor prevent him from leaving the United States at any time, and for this they agree to pay him a sum equal to thirty per cent, of their net profits, to be ascertained and settled annually on the tenth day of October.</p> <p>The said John B. Watson agrees to pay the said Reed, Crane & Co., the sum of twenty-five hundred dollars within twelve months from the date of this agreement.</p> <p>■ It is mutually agreed that John B. Watson shall be consulted in all matters of importance, and his opinion shall be decisive, as to the course to be pursued, unless both partners agree thereon. It is also agreed that a full and complete balance sheet of the books of Reed, Crane & Co., showing all debts, contracts, assets, etc., etc., shall be handed to John B. Watson each and every month during the continuance of this agreement.</p> <p>Witness our hands and seals this twenty-ninth day-of October, 1878.</p> <p>Witnesses present all signatures.</p> <p>Joseph P. Reed, - [l. s.]</p> <p>' James L. Crane, [l. s.]</p> <p>Per J. P. Reed.</p> <p>Reed, Crane & Co., [l. s.]</p> <p>John B. Watson, [l. s.]</p> <p>Isaac J. Alexander,</p> <p>Thomas Winn,</p> <p>C. Cornish.</p> <p>Philadelphia, February 8 | 79.</p> <p>I agree to all the provisions of this agreement.</p> <p>James L. Crane.</p> <p>In January, 1880, Kremer bought out his partner, Reed-, in .the Philadelphia house, and they being creditors of Reed, Crane & Co., he says he asked Watson if he was a partner, and Watson admitted he was. He had, so Kremer asserts, made the same admission in October or November, 1878. In July, 1880, it was ascertained Reed, Crane & Co. were utterly insolvent; their assets were sold out and the debt due Kremer entirely unpaid.</p> <p>He then brought suit against this firm, including Watson as one of the defendants, and shortly afterwards sued him for deceit for fraudulently misrepresenting the condition of the house.</p> <p>The plaintiff having given evidence of an admission made in January, 1880, by the defendant John B. Watson, that he was a partner in the firm of Reed, Crane & Co., the defendants, to support the evidence in denial that such an admission was made, called John B. Watson, and he having testified that no such admission was made, it was proposed to ask the witness this question:</p> <p>“Going back to the interview which Mr. Kremer says he had with you in January, 1880, when he was buying out J. P. Reed & Co., state what was the credit of the house of Reed, Crane & Co. at that time in January, 1880,” which question was objected to as not pertinent, and the objection was sustained and the defendant excepted, and the judge sealed a bill of exceptions. (First assignment of error.)</p> <p>The defendant proposed to read to the jury a contract made with the plaintiff’s firm July 15th, 1878, and renewed by himself Januaiy 15th, 1880.</p> <p>The plaintiff on cross-examination had proved this contract was made when he formed the partnership of J. P. Reed & Co., and was renewed when he bought out J. P. Reed in January, 1880, and identified the document. The defendant then proposed to read to the jury the agreement between Watson and the firm of J. P. Reed & Co., dated July 15th, 1878, signed by the plaintiff himself, and also renewed between the plaintiff alone and this defendant on the 15th of January, 1880, to continue for three years. And thereupon the counsel for the plaintiff objected, and the objection was sustained, and the court, at the request of the defendant Watson, sealed an exception. (Second assignment of error.)</p> <p>The defendant requested the court to charge, inter alia.</p> <p>“6. There is no evidence from which the jury are warranted in finding that the actual contract between Reed, Crane & Co. and J. B. Watson was a partnership, or other than what is expressed in the writing produced and proved by the plaintiff and by the defendant, as being the contract between those parties.”</p> <p>Answer. I decline that point. (Third assignment of error.)</p> <p>Verdict for the plaintiff for $7,704.93 and judgment thereon; whereupon the defendant took this writ, assigning for error the rejection of his testimony as above set out, and the answer of the court to his sixth point.</p>

1, of Philadelphia county: Of January Term, 1885, No. 205. This was a proceeding to enforce a mechanic’s lien for work done and materials furnished, for and about certain premises belonging to the defendant. The amount of the claim was paid by the latter into court, under the act of Assembly, and an agreement was filed that the case should go to trial, as if sci. fa. had issued, and the general issue had been pleaded.

<p>1. The jurisdiction of the Orphans’ Court over all matters of account between guardian and ward is exclusive.</p> <p>2. Although a guardian may have made a private settlement with his ward, on his arriving at age, he may still in a proper case, within a reasonable time, be required to file and settle his account in the Orphans’ Court. If, however, such settlement shall have been made in good faith and on full deliberation, is full and fair, is accompanied by a full release executed under no mistake or misapprehension, and has been acquiesced in by the parties, it may be treated as a waiver of the legal right to an account in the Orphans’ Court, and its terms may be enforced in the Common Pleas as other contracts are enforced.</p> <p>3. A ward cannot impeach such a settlement and release, as having been procured by artifice, misrepresentation and fraud, in an action in the Common Pleas against those with whom hiynoney has been invested .by his guardian. If the settlement and release is repudiated, resort must be had to the Orphans’ Court.</p> <p>4. Equity would compel the use of the guardian’s name for the benefit of his ward in an action instituted by him against those with whom the guardian had invested his money.</p>

4, of Philadelphia county: Of January Term, 1885, No. 216. This was an attachment execution issued April 16th, 1884, by O. C. Day against James H. Boud, defendant, and the New England Life Insurance Company-, garnishee, on a judgment obtained by him in an action' of assumpsit against James H. Boud for $546.08, on October 20th, 1883. The garnishee appeared and pleaded nulla lona. A jury was called and the following special verdict was rendered by agreement: “ 1.

<p>1. The defendant in an attachment under the Act of March 17th, 1869, P. L., 8, after the attachment has been dissolved by the court, and the action is continued, as in a case of summons for debt, cannot in said action set off the damages -which he has sustained by reason of said attachment.</p> <p>2. There can be no breach of the bond, required by said Act before the attachment can issue, and consequently no right of action on it, until the attachment is dissolved by the court, or fails by reason of the inability of the plaintiff to sustain his claim.</p> <p>8. A set-off is in substance a cross action, and a cross demand must be complete when the ■ action was instituted. A cause of action incomplete at the impetration of the said writ of attachment is not available as a set-off in the prosecution of the action, as if begun by summons.</p> <p>4. Plunkett v. Sauer, 5 Out., 856, distinguished.</p>

<p>1. In the location and construction of a railroad the Act of 19th of February, 1819, P. L., 83, prohibits the corporation from passing through inter alia, any dwelling house in the occupancy of the owner or owners thereof without his, her, or their consent. This necessarily includes such curtilage connected therewith as is necessary for its reasonable enjoyment as a dwelling house for the owner and his family.</p> <p>2. The exact extent of curtilage cannot be defined by any arbitrary rule. As each case arises, the right of the owner and occupier of the dwelling house against hostile location of a railroad must be determined by a consideration of what is necessary for a reasonable and proper enjoyment of the house, as a residence, in view of its location and surroundings.</p>

<p>1. The appointment of a trustee under a will of the decedent-rice one removed, by the Orphans’ Court, without notice to all the parties in interest, will be revoked on the petition of a party in interest, who had no notice, without any other cause than want of notice being shown.</p> <p>2. When a trustee is appointed by the Orphans’ Court, without notice to all the parties in interest, a party in interest who had no notice is not estopped from petitioning the court for the removal of said trustee by reason of (a) the lapse of five months since the appointment, or (6) the receipt from said trustee of income, due.</p> <p>3. All parties in interest in a proceeding in the Orphans’ Court are entitled to notice of every petition or motion, not grantable, of course, as provided by the statutes.</p>

<p>1. One not a party to a contract, made for his benefit, can enforce . his rights in equity against one, a party to the contract, who seeks to- . appropriate to the payment of the debt due him, the property provided in said contract for the payment of debts, including a debt due him, to the exclusion of the party for whose benefit the contract was made.</p> <p>2-. A creditor who advances money to pay a debt of his debtor is entitled to a preference for the money so advanced, as against creditors standing on the same footing, as the party paid, in the distribution of the property provided by contract between said creditor and debtor for the payment of the debts of the said debtor.</p> <p>3. A and_ B entered into articles of co-partnership to carry on. the publishing business. A was largely indebted to B and others, which indebtedness it was agreed between them A should pay out of the profits of the business, after the expenditure of sufficient to keep up the stock, and eaeli partner had drawn a stipulated sum each' month. Tt was also agreed between them that after the debts of B were paid, the stock on hand and all of B’s stock and fixtures were to be equally divided, or the value thereof credited to each. A induced B to advance enough to pay C, one of B’s said creditors. A failed to pay B and some others. On dissolution of the partnership B took all the stock and fixtures, and claimed credit against them for the amount due him by A, and also for the amount he had advanced to pay C. Held, reversing the court below, that B was entitled to be paid in full for the amount advanced to pay C, and that he was entitled to his pro rata share with A’s said other creditors on the said amount A owed him.</p>

2, of Philadelphia county: Of January Term, 1885. This was an action of covenant brought by George B. Maride, plaintiff below, against Ario Pardee, defendant below.

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of Januarjr Term, 1885, No. 323.</p> <p>This was an action of covenant by Benjamin F. Seitzinger against The New Era Life Association, of 1876, upon a policy of life insurance issued by the defendant company to the plaintiff, on the life of one Roland, who was a creditor of the plaintiff. The narr was in the usual form. A copy of the policy was filed.</p> <p>The defendant filed an affidavit of defence, alleging that the policy had been forfeited by non-payment of dues; that plaintiff had no insurable interest in the life of Roland ; that the policy was a wager, and void, etc. The defendant pleaded the general issue. Covenants performed, absque hoc with leave, etc.</p> <p>The following facts appeared on the trial:</p> <p>The defendant was incorporated December 31st, 1875, under the general corporation Act of April 29th, 1874. Irvin Roland made an application for membership, or insurance, in the defendant Association. On October 11th, 1878, the defendant Association executed a policy or certificate of membership, whereby it covenanted, “ at the expiration of sixty days after said Association shall have received reasonable and satisfactory proof of death of said Irvin Roland, to pay, or cause to be paid, unto Benjamin F. Seitzinger, or his heirs or legal representatives, the sum of five dollars for every $1,000. maximum sum of benefit actually in force in this Association upon the decease of the said Irvin Roland, and upon which mortuary assessments are paid; provided, the amount so paid shall not exceed the maximum sum of 15,000.”</p> <p>Seitzinger was a creditor of Roland, and effected the insurance to protect his claim. Roland died November 17th, 1880, and on December 4th, 1880, proof of death was duly furnifehed to the defendant Association, which did not, at the expiration of sixty days thereafter, comply with its covenant, and suit was therefore brought by Seitzinger. At the trial the Association defended upon the ground that there were misrepresentations made by the insured in the application for membership ; that the policy had lapsed because of non-payment of dues and assessments; that “ reasonable and satisfactory proofs of death” were not furnished; and that the plaintiff below had no insurable interest in the life of Roland.</p> <p>These questions were left to the jury to determine, and they found a verdict in favor of the plaintiff for the full amount claimed, with interest. A motion for a new trial was made, and on March 21st, 1884, was refused, and a general judgment for 15,883 was entered upon the same day.</p> <p>On April 12th, 1884, an execution was issued and placed in the hands of the sheriff.</p> <p>On April 18th, 1884, the defendant presented to the court an affidavit alleging that the Association had made an assessment upon its members to pay the claim after the rule for new trial was discharged, and that notices were to be “ forwarded to the membership in a few days.” A rule to stay the execution for thirty daj'S for payment of assessments by the members was obtained. This rule was discharged December 27th, 1884.</p> <p>The court upon the same day, however, made absolute another rule, granted a short time previous, viz., on December 6th, 1884, u to restrict the operation of the verdict, judgment and execution to assessments collected, and to be collected, by the Association from its members.” This order was made upon a rule to show cause granted, upon the affidavit of the secretary of the defendant Association, and there were no depositions taken to support the allegation of the affidavit.</p> <p>It is to this order restricting the operation of the plaintiff's verdict, judgment and execution, that the writ of error is taken.</p>

<p>1. The report of a Referee under the Act of May 14th, 1874, must state separately and distinctly the findings of fact and the conclusions of law.</p> <p>2. The finding must state the facts with the certainty, precision aud fullness of a special verdict.</p> <p>8. The .judgment entered upon the report of the Referee in this case is set aside, for the reason that the report is not even a substantial compliance with the Act of Assembly.</p> <p>4. While a receipt in full is not conclusive, yet it is prima facie evidence of a settlement, and should only be set aside for weighty reasons, especially after the lapse of years.</p>

<p>Certiorari to the Court of Quarter Sessions of Philadelphia county: Of January Term, 1885, No. 351.</p> <p>The record showed the following: May 23d, 1883, on petition, the court appointed a jury of six to view and report upon the propriety of opening Pearl street. This juiy qualified, proceeded to perform their duties, and reported to the court February 21st, 1884, that “ in their judgment the state of improvements in the neighborhood, as well as the convenience of adjacent properties, make it necessary and proper that the said Pearl street should now be opened upon the lines laid down upon the city plan.”</p> <p>It was alleged and argued before the jury that Pearl street, between Thirty-fourth and Thirty-fifth streets, had been dedicated to public use, and therefore no damages should be awarded to those who now claimed the land, viz., the estate of Robert Steen, William Sellers et al.</p> <p>The jury found and reported to court—</p> <p>1. Pearl street is laid out upon the confirmed plans of the city of Philadelphia, thirty feet wide between Thirty-fourth and Thirty-fifth streets, as laid out upon the plan hereto dilin6X6(l</p> <p>2. By deed, dated July 17, 1856, in Deed Book R. D. W., No. 88, page 149, &c., Charles Ingersoll et al., trustees of the one part, granted and conveyed to Richard Smethurst of the other part, a lot or piece of ground described, inter aliar “ thence north along the west side of Thirty-fourth street, including a street, thirty feet in width, extending westward from Thirty-third to Thirty-fifth street.”</p> <p>3. Pearl street is identical in width and location with the thirty feet street referred to in the foregoing deed of conveyance.</p> <p>4. By deed, dated May 6th, 1859, duly recorded, Richard Smethurst and wife granted to Robert Steen a portion of said lot, a piece of ground, described as follows: “Beginning at the southeast corner of Baring street and Thirty-fifth street, thence extending southward on a line parallel with Thirty-fourth street, one hundred and ninety-three feet to the middle of a certain thirty feet wide street extending from Thirty-third to Thirty-fifth streets, thence westward along the middle of the said thirty feet wide street one hundred and ninety feet ten and three eighth inches to the east side of Thirty-fifth street, and thence northward along the east side of said Thirty-fifth street one hundred and ninety-three feet six and one eighth inches, to the place of beginning.</p> <p>5. In the year 1860 the late Robert Steen improved the property described in the above deed by erecting dwelling houses on the Baring street front, and also two houses known as twin houses Nos. 315 and 317 N. Thirty-fifth street, fronting on said Thirty-fifth street, and so arranged with reference to the line of Pearl street, that the front on Thirty-fifth street, when Pearl street is open, will be, for No. 315 N. Thirty-fifth street, thirty feet two and three eighth inches, and for 317 N. Thirty-fifth street, thirty feet. Since the houses have been built there has always been maintained by the said Steen or his estate a fence on the middle line of Pearl street, extending to the east line of his property, and that portion of the bed of Pearl street fifteen feet wide has been used as a part of the side yard of premises 315 N. Thirty-fifth street.</p> <p>6. By a deed, dated June 14th, 1866, recorded June 19th, 1866, in Deed Book L. R. B. No. 188, page 442, Richard Smethurst and wife conveyed to William Sellers and John Sellers, Jr., all that certain lot or piece of ground in the Twenty-fourth ward of the city of Philadelphia, beginning at the northeast corner of Powelton avenue (formerly called Callowhill street) as now opened of the width of eighty feet, and Thirty-fifth street, thence extending eastward along the north side of said Powelton avenue four hundred and thirteen feet eleven and seven eighth inches to the west side of Thirty-fourth street, thence northward along the east side of said Thirty-fourth street (including a street thirty feet in width, extending westward from Thirty-third to Thirty-fifth streets on a line parallel with Powelton avenue, the southernmost line of which thirty feet wide street is at the distance of one hundred and seventy-eight feet north of said Powelton avenue) three hundred and eighty-six feet to the south side of Baring street, thence westward along the south side of said Baring street two hundred feet, thence southward parallel with said Thirty-fourth street by ground now or late of Robert Steen, one hundred and ninety-three feet to the middle of said thirty feet wide street; thence westward along the middle of said thirty feet wide street one hundred and ninety-nine feet ten and three eighths inches to the east side of said Thirty-fifth street; thence south along the same one hundred and ninety-three feet six and one eighth inches to the place of beginning (being part of a large lot of ground which Charles Ingersoll et al., trustees, granted and conveyed unto the said Richard Smethurst in fee), together with all and singular the ways, streets, alleys, passages, etc., etc.</p> <p>7. All of the land covered by the last mentioned conveyance has been subdivided and by mesne conveyances granted and conveyed to the several registered owners whose names appear on their respective subdivisions in the plan hereto annexed. The land south between Powelton avenue and Pearl street is vacant and unimproved. The Baring street fronts are improved with dwelling houses from Thirty-fourth to Thirty-fifth streets.</p> <p>8. Tire jury, under the facts herebefore stated, have not recognized any dedication of Pearl street, because they found none, certainty not previous to the Steen title; and believing that they have the power to inquire as to the damages before determining the primary question of opening the street, they have accordingly covei’ed the entire question, rather than to subject the city to the expense of another jury, which might be asked for that purpose.</p> <p>They therefore assessed and reported damages to be paid to the sureties of the Steen estate and to the other property-holders.</p> <p>The city of Philadelphia excepted to the report of Viewers, and filed the following returns:</p> <p>1. Because by deed, dated July 17th, 1858, recorded in Deed Book R. D. W., No. 88, page 149, &e., Charles Ingersoll et al, trustees, &c., granted and conveyed to Richard Smethurst (grantor of the late Robert Steen, now deceased), the land situate between and bounded by Callo whill, Baring, Thirty-fourth and Thirty-fifth streets, describing by metes and bounds “a street thirty feet in width, extending westward from Thirty-third street to Thirty-fifth street on a line parallel with said Callo whill street (the southernmost side of said thirty feet wide street is at the distance of 178 feet north of said Callowhill street), being identical with Pearl street, and the said street was thereby dedicated to public use.</p> <p>2. Because the estate of Robert Steen, deceased, holds title to the land for the taking of which damages have been awarded, subject to the public right of way over said thirty feet wide street from Thirty-third to. Thirty-fifth streets.</p> <p>William Sellers, John Sellers, and other property owners on this line of Pearl street, also excepted, as follows:</p> <p>1. To so much of the report of said jury as relates to the Consideration and determination by the jury of the question of damages for the opening of the said street and apportionment of benefits by reason of such opening.</p> <p>2. To so much of the report of said jury as finds that the owners of the property, late of Robert Steen, deceased, will sustain damages to the net amount of $1,711.</p> <p>3. To so much of the finding of said jury as awards the said sum of $1,711 to the trustees of the estate of said Robert Steen, deceased.</p> <p>4. To so much of the finding of said jury as directs the'payment of said damages, or any part thereof, by the following owners of property abutting on said Pearl street, between Thirty-fourth and Thirty-fifth streets, to wit: Elizabeth A. Emory, Lewis Emory, Jr., Jessie S. Colton, Enoch Lewis, William Sellers et al., Everett Webster, Henry K. Smith, William G. Steel, Caroline A. Laughlin, Elizabeth C. Halliday, Harriet M. Claxton.</p> <p>5th. To the finding of said jury that the said Pearl street was not dedicated to the city as and for a public street of the width of thirty feet from Thirty-third street to Thirty-fifth street.</p> <p>6th. To the award of any damages by reason of the opening of the said street.</p> <p>By opinion, filed October 21st, 1884, Mitchell, J., overruled and dismissed the first exception of William Sellers and others, holding that the Act of May 14th, 1874, P. L. 174, in reference to the opening of roads and the duties of 'Viewers, applies to the county of Philadelphia.</p> <p>After hearing, the Court made-the following decree:</p> <p>And now, this twenty-eighth day of January, 1885, this court having by decree of October 21st, 1884, overruled and dismissed the first exception filed by William Sellers et al., and this matter having been argued upon the report of the jury of view and exceptions thereto filed on behalf of the City of Philadelphia and of William Sellers et al., it is ordered, adjudged and decreed, that the first and second exceptions filed by the City of Philadelphia be sustained, and that the second, third, fourth, fifth and sixth exceptions filed by William Sellers et al. be sustained; and the court being of the opinion that by reason of the facts found by the jury of view, as to the covenants by the grantors of Robert Steen, and as to the recitals in the deeds of conveyances by said grantors, referring to a thirty feet wide street, now known as Pearl Street, there is no right in the owners of the property late of said Robert Steen to recover damages for the opening of said Pearl Street.</p> <p>It is further ordered,and that the report of the jury of view finding that Pearl Street shall now be opened upon the lines laid down upon the city plan to public use as a highway of the City of Philadelphia be confirmed, and said street as laid down on said plan is ordered to be opened.</p> <p>The trustees of Robert Steen thereupon took this writ of certiorari, assigning for error the sustaining of the several exceptions and the decree.</p>

388. This was an appeal by the Washington and Lee University from the decree of the Orphans’ Court of Philadelphia county, in the matter of the distribution of the estate of Asa Packer, deceased, upon the account of his executors. -This decree confirmed the adjudication of the Auditing Judge, upon exceptions thereto by the appellants, awarding a legacy given by the decedent’s will to Washington College, Lexington, Virginia, to the Virginia Military Institute instead of to…

<p>1. A. agreed to sell to B. a mining property, the real estate and machinery. B., it was agreed, should have the right of possession and the product of the mine upon his making the down payment, until the first payment should become due. This payment was a certain amount of cash and notes, with security for the balance of the purchase money. A._ agreed to convey to him the title of the property, upon his paying this cash and secured notes. B. paid the down payment, took possession of the property and paid the cash part of the first payment, gave the notes, but without the security required. He continued in possession, but not having secured or paid the notes, the title of the property was not conveyed to him. By an arrangement of B. with C., he conveyed to C. all of his own individual property on the premises, and C. agreed with B. to get A. to convey to him, C, the title to said mining properly, which A. did. B. then brought an action of trover and conversion against A. to recover the value of the personal property, the title of which he, A., had conveyed to C. Held, reversing the court below, that B. had no cause of action.</p> <p>2. To maintain his action, it is essential for a plaintiff in trover and conversion to show that the right of properly was in Mm at the time he commenced his action.</p> <p>3. Trover and conversion does not lie where the plaintiff has the possession of the property of which the defendant has the title, and the defendant simply asserts Ms right to dominion by a sale of Ms title, unaccompanied by actual taking or delivery of possession.</p>

3, of Philadelphia county: Of July Term, 1884, No. 65. This was an action of covenant brought by Lewis P. Stone against Charles H. Middleton, October 28th, 1881, on a written contract under seal hereinafter set out. The first narr was filed on December 15th, 1881, to which defendant pleaded non est factum, covenant performed, covenants performed absque hoc. An amended narr was filed April 8th, 1882 ; all defendant’s pleas to the first narr were then withdrawn.

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term, 1885, No 60.</p> <p>This was an action on the case by F. Marion Davis against The Philadelphia Iron and Steel Company to recover damages for injuries sustained through the alleged negligence of the 'defendant.</p> <p>The first count of the narr was for bodily injuries to plaintiff by breaking of a fly-wheel constructed by defendants in a “.careless, unskillful, and unworkmanlike manner.”</p> <p>The second count was for like injuries by breaking of a flywheel out of repair, and “ carelessly, willfully, and negligently ” allowed by defendants to remain out of repair.</p> <p>The third count was for like injuries by breaking of a flywheel repaired by defendants in a “careless, unskillful, and unworkmanlike manner.”</p> <p>The plea was not guilty, with leave, &e.</p> <p>The following were the facts of the case as they appeared on the trial before Biddde, J.:</p> <p>Defendants owned and run a large establishment for rolling iron and steel on North Delaware avenue above Poplar street, in the city of Philadelphia. The trains 'of rolls or small mills were operated by steam-engines, and each train was, when in operation, attended by a gang of workmen, consisting of a roller, two ruffers, a heater, and a helper, who were paid by the ton of iron rolled. The regular heater of one of the gangs was sick, and the roller sent for plaintiff, who had formerly worked as a heater in another mill in the neighborhood, to come and take his place, on Friday morning, June 27th, 1878. He came and worked on Friday, and after an intermission resumed work at one o’clock Saturday morning, and continued to work until between two and three o’clock, when one of two iron •clamps which jointly assisted in holding a fly-wheel and cogwheel more firmly together, broke and flew off and imbedded itself with a great crash in the brickwork of the fly-wheel pit. Some of the gang working at this eight-inch mill set to work to pry the broken clamp out of the brickwork, which they succeeded in accomplishing in about fifteen minutes. The superintendent of the works was on duty in the building that night, but did not know and was not informed of the accident. On clearing away the debris, the gang, of which the plaintiff formed one, resumed work with the crippled machine.</p> <p>Up to this time no one had been hurt.</p> <p>Work continued until between five and six o’clock in the morning, when the remaining clamp gave way under the increased strain, and flying off, struck plaintiff in the forehead, fracturing his skull. He was unable for many months to resume work of any kind, and was permanently disabled from ever afterwards pursuing his regular vocation, and' is now subject to epilepsy as a direct result of his injury.</p> <p>The eight-inch mill at which the accident happened was constructed by James Massey, of Chester, a competent master machinist. On the shaft of the engine were a fly-wheel nine feet in diameter, weighing between four and five tons, and a cog-wheel two and one half feet in diameter, driven up in contact with each other, and keyed to the shaft. After being in operation for two or three years, the fly-wheel worked a little loose and showed a tendency to slide laterally along the shaft. A consultation was had between Mr. Verree, the president of the company and manager of the works, of nearly forty years practical experience in the operation of rolling-mill machinery, the superintendent, Vanhorn, since deceased, the assistant superintendent, Philips, and the blacksmith, Eckman, and as a result of their judgment as to a proper and safe device to prevent the lateral or sliding motion of the fly-wheel on the shaft, two U-shaped bolts of the best puddled one-inch round iron were made and applied about opposite arms of the fly and cog-wheels, clamped tight thereto by means of a flat bar of iron, through which the ends of the U-shaped bolts were passed, and firmly fixed by double jam-nuts, riveted to keep them from working off. The U-shaped bolt at first had three-quarter-inch ends which, six months before the accident, were taken off and inch ends welded on. No granulation of the iron appeared when this was done. The device thus served its purpose for at least two years before the accident, and there was no indication of any danger.in the use of it. The whole device, consisting of bolt, bar, and nuts, was in the testimony generally spoken of as a clamp. The breaks of both clamps were in the curves of the bolts.</p> <p>The defendant presented inter alia, the following points for charge:</p> <p>8. When plaintiff remained at work at the machine, after he knew, or ought to have known, of its defect and weakness, occasioned by the breaking of the first clamp, and without notifying his employers, he assumed the risk attendant on the use of such machine, and your verdict must therefore be for defendants. Refused. (Fifteenth assignment of error.)</p> <p>9. As the defect in the machine in this case, caused by the breaking of the first clamp, occurred in the dead of night, when the employers were absent from the works, it was contributory negligence on the part of the employés, including plaintiff, to continue operations with the partly crippled apparatus, without notifying the acting superintendent of the condition thereof, and no recovery can be had against the employers under such circumstances. Refused. (Sixteenth assignment of error.)</p> <p>10. A company is in no sense an insurer of the lives or limbs of its servants. It is bound to guard only against probable dangers, but not against merely possible ones; and it has a right to place a reasonable dependence on the care and skill of its servants in the matter of their own preservati.on and safety, and, if plaintiff failed to regard the warning given by the breaking of the first clamp, or failed to exercise reasonable care, he assumed the risk of that which followed, and he ca'nnot recover in this case. Refused. (Seventeenth assignment of error.)</p> <p>12. Since the president of the company, defendant, himself a practical roller, exercised his best judgment, and satisfied the judgment of other experienced persons, in placing clamps upon the machine and subjecting himself to the risk attendant upon the use of the machine, there was no negligence on the part of defendants, and the verdict must be for defendants. Refused. (Eighteenth assignment of error.)</p> <p>18. On the evidence in this case the verdict must be for defendants. Refused. (Nineteenth assignment of error.)</p> <p>In the general charge the court instructed the jury, inter alia, as follows: [The second point made by the defendant is, that as the engine was run by the engineer, after one of the clamps was broken, without an order from the superintendent, this would be negligence of a co-laborer, and the company would not be responsible. If the evidence satisfies you that the machine was safe with two clamps, and the accident happened from the use of one, this I think would be so, as a matter of law; but the plaintiff’s effort has been to show that it was dangerous with both clamps on. If you should therefore believe that.the use of the machinery was dangerous, with either one or two clamps, the plaintiff would not be defeated because it was more dangerous -with one.] (Fourteenth assignment of error.)</p> <p>It is true, that a master is not liable to his servants for injuries to them produced by the negligence of a fellow-servant engaged generally in the same business, provided there be no ’negligence in the appointment of such negligent servant, or in the retention of such servant after notice of hisiucompetency.</p> <p>Verdict for the plaintiff for $20,000. A rule for anew trial was granted, which was discharged on plaintiff’s consenting to a reduction of the verdict to $10,000. Judgment was accordingly entered upon the reduced verdict for $10,000, whereupon the defendant took this writ assigning for error the refusal of his points as above shown and that portion of the general charge included in brackets.</p>

<p>Error to the Court of Common Pleas, No. 8, of Philadelphia county: Of July Term 1885, No. 63.</p> <p>On the 25th of September, 1875, the following lien was filed:</p> <p>The City of Philadelphia, to the use of Joseph Johnson, James Holgate, and LaFayette Plotter v. Richard Wistar, owner. In the Common Pleas, No. 3, in and for the City and County of Philadelphia.</p> <p>The City of Philadelphia hereby files its claim to the use of Joseph Johnson, James Holgate, and Lafayette Plotter, against all that certain lot or piece of ground whereon the building 1009 Market street is erected, &c., for work done and materials furnished on Market street in front of said lot, and duly assessed and charged as follows, to wit:—</p> <p>1875. May 26. For 22 linear feet of curbstone, at</p> <p>11.75,.....$38.50.</p> <p>P'or measuring charge, . . . 1.94</p> <p>5 per cent, imposed by act of March 23d, 1886, 2.00</p> <p>$42.44</p> <p>Forty-two dollars forty-four cents, said work having been done pursuant to direction and order of the Highway Department, under authority of an ordinance approved December 31st, 1874, after the owner of the above-described ground had been notified to cause the curb in front of the same to be set with cut granite curbstones, and had neglected and refused to set curb as aforesaid for more than thirty days after said notice, for which sum of $44.44, with interest thereon, a lien is ^claimed upon the above described premises, pursuant to divers statutes enacted and provided.</p> <p>On the 21st of September, 1884, a scire facias was issued on this lien. The defendant filed his plea, and on the 10th of November, 1884, the parties agreed to the following case stated :</p> <p>The following ease, in the nature of a special verdict, is stated, for the opinion of the court: — ,</p> <p>By an Ordinance of the Councils of the City of Philadelphia, entitled “An Ordinance to make an appropriation to the Department of Highways, Bridges and Sewers for the year 1875,” approved December 31st, 1874, and printed in the ordinances of 1874, pp. 518-522, the following appropriation, inter alia, is made to that Department:—</p> <p>“Item 37. For paving Market street from Tenth to Juniper street, thirty thousand (30,000) dollars.”</p> <p>Market street in front of defendant’s premises was then, and for many years had been, a highway of the city of Philadelphia, paved with cobble stones in accordance with the manner in which most of the streets of the city were and are paved, and the sidewalk in front of defendant’s premises was supported by a curbstone well and properly set, at defendant’s expense, on the proper line, in accordance with the style in common use, and was in good order and repair.</p> <p>By reason of said appropriation, a contract was entered into between the City of Philadelphia and said claimants, Johnson, Holgate and Horter, for the paving of the cartway of Market street with Belgian blocks, and said pavement was duly laid. The defendant having neglected to comply with notice given to replace his curb with a new cut granite curb, the Highway-Department ordered and directed the said claimants to set such curb, which was accordingly done by them, and for the price or charge thereof this claim was filed.</p> <p>It is further agreed that each party shall be at liberty to cite all laws and ordinances, general, local, or special, bearing on the case, and to read the same from the printed volumes, with the same effect as if herein set forth at length.</p> <p>If upon the foregoing facts the court are of opinion that the plaintiff is entitled to recover in this action, then judgment shall be entered for plaintiff for the amount of the claim, with interest, &e. Otherwise, judgment shall be entered for defendant. Each party reserves a right to a writ of error, &c.</p> <p>The ordinances to which reference was made in the argument'in the court below were the following:</p> <p>Ordinance of February 12th, 1852, entitled “ An Ordinance to prescribe the size and character of curbstones in the streets which are to be paved with cubical blocks, passed. February 12th, 1852.”</p> <p>“ Sect. 1. That where the cartway of any public street shall be ordered paved with cubical blocks, every owner of the lot or lots of ground opposite such pavement, shall cause the foot pavement to be supported with cut granite curbstones, which shall not be less than eight inches in thickness, two feet in depth, and each stone not less than six feet in length; and in case such owner neglect or refuse so to curb his footway, then the same proceeding shall be had as ai*e now authorized in the case of the owners of lots neglecting or refusing to curb their footways.”</p> <p>An ordinance of May 3d, 1855, entitled “ An Ordinance to regulate the manner of paving the streets in the city of Philadelphia, and to provide for the payment of the expense thereof.” A portion of Section 1 is as follows : — •</p> <p>“The Select and Common Councils of the City of Philadelphia do ordain, That the cartways of the public streets and highways of the city of Philadelphia (except at the intersections thereof) shall be paved at the expense of the owners of the ground fronting thereon, and the repaving of the same shall be done at the expense of the city,” &c., &c., &c.</p> <p>And’also an ordinance of December 31st, 1874, entitled “An Ordinance to make an appropriation to the Department of Highways, Bridges and Sewers for the year 1875.” Item 37 of section 1 contains, among others, the following provision:</p> <p>“ For paving with Belgian blocks, upon plans and specifications'of the Chief Commissioner of Highways,.....Market street, from Tenth to Juniper street,” and appropriating $30,000 to that purpose.</p> <p>The Acts of Assembly relative to municipal claims which are made a part of the case stated are as follows:—</p> <p>Act of April 16th, 1840, section 9 (P. L., 412) :—</p> <p>“ It shall be lawful to file.....in the office of the prothonotary.....all claims and demands due.....for pitching and paving streets,.....for curbing, paving, and repairing any footway within the same.”</p> <p>Same act, section 10, authority is given :—</p> <p>“ At any time after the filing of the claim, to proceed to recover the amount thereof by writ of scire facias against the real estate upon which it is a lien.”</p> <p>Act of April 10th, 1843, section 1 (P. L., 342), provides that: — ■</p> <p>“In all actions, whether by scire facias or otherwise, .... for the recovery of any sum claimed for paving, curbing, .....it shall only be required to be proved.....to entitle a recovery.....that the said work was done, or the materials furnished, and the just value thereof; and upon any such trial, it shall only be lawful for the defendant to deny that the work was done, or materials furnished, or prove that the price charged therefor is greater than the value thereof, or that the amo'unt claimed has been paid or released.”</p> <p>Act of March 16th, 1846, section 1 (P. L., 115), provides that:—</p> <p>“Such claims may, in suits thereon, be read as evidence of the facts therein set forth.”</p> <p>These acts in their texts applied to the incorporated districts, and not to what was then known as the old city.</p> <p>Act of April 16th, 1838, section 3 (P. L., 626). “It shall and may be lawful for the Select and Common Councils of the City of Philadelphia,.....at the expense of the owner or owners of the property adjoining, to regulate, grade, pave and re-pave, curb and re-curb the said footways or sidewalks .....”</p> <p>The Act of February 2d, 1854, (commonly called the Consolidation Act), provided:—</p> <p>Section 40. “That it may be prescribed by ordinance that paving of streets, except at the intersection thereof, and of footways and of laying of water pipes within the limits of the city, shall be done at the expense of the owners of ground in front whereof such work shall be done, and liens may be filed by said city for the same as is now practiced and allowed by law.”</p> <p>Act of April 28th, 1873, (P. L., 854)</p> <p>“ That the Select and Common Councils of the City 'of Philadelphia be and they are hereby authorized and empowered to alter and regulate the curb lines and heights, and determine and make uniform the widths of the footways of the streets within the limits of the said city.”</p> <p>In 1875 the councils provided for the paving of Market street with Belgian blocks. This was done, and in accordance with ordinance of February 12th, 1852, the foot pavement was supported with cut granite stones, for which the claim was filed.</p> <p>The judgment of the court was for the plaintiff for $57.46. The defendant took this writ assigning for error the entering of this judgment.</p>

<p>Error to the Court of Common Pleas of Fayette county: Of July Term, 1885, No. 33.</p> <p>This was a scire facias by Edward J. Hughes for the use of Mackintosh, Hemphill & Co. against George A. Torrence, issued April 5th, 1880, to revive a judgment against him, entered on April 26th, 1875. Judgment was regularly entered against the defendant May 3d, 1880. On April 27th, 1882, an alias scire facias was issued and served on Joseph Johnston, as terre tenant, and his assignees, he having made an assignment for the benefit of his creditors. On June 16th, 1882, judgment de terris was entered against Johnston and his assignee, terre tenants of lands of Torrence, for want of a plea.</p> <p>The court afterward opened this judgment. Johnston’s assignee pleaded no lien, payment, and payment with leave. On this issue the parties agreed to the facts and filed the following :</p> <p>And now, December, 1884, it is hereby agreed by the parties to the above suit, that the following case be stated for the opinion of the court:</p> <p>In April, 1875, George A. Torrence, the defendant above named, borrowed.,from Mackintosh, Hemphill & Co., of Pittsburgh, Pennsylvania, through the agency of Edward I. Hughes, the plaintiff above named, the sum of $18,000, and gave as security therefor bis judgment bond dated and executed on the 22d day of April, 1875, and a mortgage dated April 22d, 1875, acknowledged April 23d, 1875, and recorded April 23d, 1875, in the Recorder’s Office of Fayette county, Mortgage book 2, p. 381. The mortgage covered a farm owned by the said Torrence in Dunbar township, in said county. The bond was entered of record in Fayette county aforesaid, on April 26th, 1875, at 327, June Term, 1875, in the Common Pleas of said county.</p> <p>Beside the said farm, so mortgaged as aforesaid, the said defendant owned certain other real estate in said township.</p> <p>' When the said mortgage debt became due, execution to collect it was issued on the judgment, entered on said bond aforesaid. Under this execution the mortgaged farm was sold by the sheriff, and purchased by Mackintosh, Hemphill & Co., on the 6th day of September, 1876, for about $4,600. Alias execution was issued on the judgment and about $6,500 realized out of other real estate of the said George A. Torrence, making about $11,000 in all produced by execution and applicable to the said debt of $13,000 due the said Mackintosh, Hemphill & Co. Some time after the purchase of the said farm by the said Mackintosh, Hemphill & Co., and after the said additional sum of $6,500 had been realized by them from the sale of defendant’s other land aforesaid, the price of real estate in Fayette county advanced, and Mackintosh, Hemphill & Co. sold the said mortgaged farm which they had bought for $4,600 to some eastern parties for about $40,000.</p> <p>The said Mackintosh, Hemphill & Co. were so well satisfied with the said amount of $40,000 realized by them out of the said mortgaged farm, besides the said $6,500 realized from defendant’s other lands, that they declared their purpose not to collect the balance of their debt, viz: the $2,000 aforesaid, and were willing to satisfy the said judgment. They did not satisfy the said judgment of record, but at the solicitation of the said George A. Torrence, without any consideration whatever, they wrote the letter dated Pittsburgh, February 21st, 1880, to Mr. Lindsey, their attorney in Uniontown, which letter was mailed in Pittsburgh on the said 21st day of February, 1880, and received by Mr. Lindsey in due course on the same or the next day. The said letter and envelope are hereby made a part of this case stated.</p> <p>Pittsburgh, February 21st, 1880.</p> <p>R. H. Lindsey, Esq., Uniontown, Pa.</p> <p>Dear Sir : — We enclose you the power of attorney required by that “ Pliila. lawyer,” which we hope will quiet his slumbers. George A. Torrence wants us to assign the unsatisfied remainder of our judgment to his son. What in the world good this will do him we don’t know nor care, and are quite willing to do so, except as far as the Boyce judgment is concerned, as we paid for that, we want to get it if getable. Will you please look into it and prepare the proper papers for us to execute.</p> <p>Yours truly,</p> <p>Mackintosh, Hemphill & Co.</p> <p>On the said 21st day of February, 1880, examinations of the title and records were being made by the eastern parties, preparatory to the purchase of the said mortgaged farm from the said Mackintosh, Hemphill & Co. At that time the said mortgage stood open on the records. The attorney of the purchasers wanted to have it satisfied to perfect the title; that fact was communicated to Mackintosh, Hemphill & Co. by Mr. Lindsey, and the said M. H. & Co. forwarded to him the power of attorney, authorizing the Recorder of Deeds to satisfy the said mortgage, a copy of which is hereto attached and 'made a part of this case stated. The said power of attorney has no date in the body, but was acknowledged before an alderman in Pittsburgh, on the 21st day of February, 1880, and was recorded in Fayette county on the 23d of February, 1880.</p> <p>George A. Torrence to E. I. Hughes, now for use of Mackintosh, Hemphill & Co. Art. of Ag. Book 4, p. 13. Mortgage dated April 23d, 1875, upon 207 acres of land in Dunbar Township, Fayette county, to secure thirteen thousand dollar^, with interest from April 23d, 1875.</p> <p>Recorded in Fayette County, Pennsylvania, on the 23d day of April, 1875, in Mortgage Book No. 2, at page 381.</p> <p>We do hereby authorize and empower the Recorder of Deeds of Fayette County, in the State of Pennsylvania, for us and in our name and stead, to enter satisfaction upon the mortgage of the record of the above stated mortgage, the debt thereby ■secured having been fully paid, and for so doing this shall be 'his‘sufficient warrant.</p> <p>Witness our hand and seal this day of February, Anno •Domini one thousand eight hundred and eighty.</p> <p>On the same day, in pursuance thereof, Mr.”Darby, the Recorder of Fayette county, entered satisfaction of the said mortgage on the record.</p> <p>Mr. Lindsey says that he talked to his clients, Mackintosh, Hemphill & Co., about the balance of $2,000; or thereabouts, still appearing to be due at the time of the sale of' the said farm on the said debt of $13,000, and that the said M. H. & Co. said they eared nothing about the matter,' that they had made enough money out of the transaction without the balance of the.judgment, and that it might be satisfied.</p> <p>On the 24th day of February, 1880, at the request of George A. Torrence’s attorney, by virtue of the said letter of the said Mackintosh, Hemphill & Co., to him, dated February 21st, 1880, and of the execution of authority therein conferred, Mr. Lindsey, as Mackintosh, Hemphill & Oo.’s attorney, assigned in the record without any consideration whatever, the unpaid balance of the said judgment to Maria M. Torrence, wife of the said George A. Torrence.</p> <p>Maria M. Torrence issued a scire facias on this judgment, No. and Term of the case now in hearing, on the 5th of April, 1880, being within five years of its date, in the name of the original plaintiff, Edward I. Hughes, to revive and continue the liens thereof on all lands originally bound by it.</p> <p>On the 15th day of July, 1875, George A. Torrence and the" said Maria M., his wife, conveyed to Joseph Johnston, by duly acknowledged deed, containing clause of general warranty, the east half of lot No. 91 in the old town in New Haven, in said county, on .which was erected the Claney House, together with certain other real estate, for a full money consideration, which was paid to the said George by the said Joseph Johnston; and by the other deed, dated July 16th, 1875, recorded in Deed Book 29, p. 482, the said George A. Torrence and Maria M., his wife, conveyed to said Joseph Johnston, for a valuable and full consideration, a piece of land in Dunbar Township, in the said county of Fayette — which said deed contained a clause of general warranty.</p> <p>This property the said George A. Torrence owned on the 26th of April, 1875, at the time of the entry of the said judgment in favor of the said Mackintosh, Hemphill & Co. for $13,000, and that judgment was the first lien on it.</p> <p>The said George A. Torrence and Joseph Johnston had been for a long time before the 15th day of July, 1875, partners in the banking. business in Connellsville, in the said county. The said Torrence, finding himself deeply in debt, both in the said banking business and outside of it, on or about the said 15th day of July, 1875, made conveyances of large amounts of valuable land to the said Joseph Johnston, not including the said Claney lot, not under any assignment or insolvent laws, but by private agreement, the said Joseph Johnston to dispose of the same to the best possible advantage, and pay all of the indebtedness of the said George A. Torrence, if money enough should be realized therefrom to do so. If any surplus remained after paying all of the said debts, and the expense of said proceeding, the said surplus was to be returned by the said Joseph Johnston to the said George A. Torrence. The said Joseph Johnston accepted the said trust, but there existed large indebtedness of George A. Torrence of record and liens on the property conveyed at the time of the conveyance by Torrence to Johnston, for the payment of which, all the property so conveyed was subsequently sold by execution, Johnston did not attempt the execution of said trust, but on the 21st day of October, 1875, made an assignment- under the state insolvent laws for the benefit of his creditors of his entire personal and real estate to Josiah Kurtz and to others, of whom Josiah Kurtz alone entered actively upon his duties as said assignee.</p> <p>In the said assignment for the benefit of his creditors, the said Joseph Johnston included the entire property so as aforesaid convejmd to him by the said George A. Torrence in July, 1875, for the purpose of paying the said George’s debts, setting forth in his said assignment the said conveyance to him by the said George, with all the conditions in full, as conveyed to him.</p> <p>The said Josiah Kurtz accepted the duties of the said assignment for the benefit of Joseph Johnston’s creditors, but never attempted the execution of the duties of the said George A. Torrence, but nearly the entire indebtedness of Joseph Johnston, to which the fund in court would be applicable if answered to the assignees of Joseph Johnston, were debts of the partnership of George A. Torrence & Co., composed of said George A. Torrence and Joseph Johnston. On the 16th day of June, 1876, the said Josiah Kurtz, assignee of the said Joseph Johnston, obtained an order of the Court of Common Pleas, pursuant to the Act of Assembly of 1876, Purd. Dig. 1978, to sell certain real estate of the said Joseph Johnston, including the Claney House, and the Dunbar -township land, and under the said order sold the said Claney House as the property of the said Joseph Johnston to Maria M. Torrence, for the sum of $1,030, the said piece of land in Dunbar township, containing twelve acres, more or less, to John T. Hogg for $1,300, and the disposition of the money from the sale of the Claney lot raises the question in this case, that is to say, as to whether this judgment shall be revived as against the said Claney lot.</p> <p>The seire-faeias on the Hughes’ judgment was issued at the instance of Maria M. Torrence on the 5th of April, 1880; judgment was confessed by George A. Torrence May 3d, 1880, and was regularly taken, de terris, after personal service by default against both Joseph Johnston and Josiah Kurtz, his assignee, denominated terre tenants.</p> <p>The judgment against Johnston and Kurtz is dated June 16th, 1882, and was obtained on an alias sei.fa. issued April 27th, 1882.</p> <p>Joseph Johnston had been in possession of the Claney lot from the 15th of July, 1875. when it was conveyed to him by Torrence and wife, until October 21st, 1875, when he conveyed it to his assignees, after which date it was in possession of the said Josiah Kurtz until he sold as aforesaid.</p> <p>Josiah Kurtz, as assignee of the said Joseph Johnston, filed an account in court showing in his hands a portion of the purchase money of the said Claney House, sold as aforesaid by the said Kurtz, under the order of this court, June 16th, 1876. An Auditor was appointed to ascertain liens, etc., and Maria M. Torrence appeared before him to claim the entire amount of the said Claney House money; the Auditor rejected the claim of Mrs. Torrence, but the court reversed the decision of the Auditor on the ground that the said judgment now in controversy having been revived and standing in full force at the time of the proceedings before the Auditor, and being the first lien on the said Claney House, Mrs. Maria M. Torrence was, according to the record, entitled to the said Claney House money, but the court also stayed all proceedings in the distribution of the said Claney House money until an application could be made to the court to open the said judgment and ascertain if a valid defence to it could be made; whereupon on the 12th day of May, 1884, the said Kurtz presented his petition to this court (which is hereby made a part of this case stated, and the facts in which said petition are not denied,) to open the said judgment as to the said Johnston and Kurtz, and allow them to make a defence on the ground set forth therein.</p> <p>The prayer of this petition was granted on the 26 th day of August, 1884, and the case was ordered to be placed on the trial list for this (December) term.</p> <p>Maria M. Torrence died during this progress of the said hereinbefore recited proceedings, and Alfred C. Knox, her administrator, has been substituted on this record as plaintiff.</p> <p>If the court shall be of opinion that the plaintiff, Alfred C. Knox, administrator of Maria M. Torrence, deceased, is entitled to recover in the action, and to have said judgment revived as against Joseph Johnston and Josiah Kurtz, his assignee, as aforesaid, terre tenants of the real estate so conveyed as aforesaid by the said George A. Torrence and wife to the said Joseph Johnston, to wit, the east half of lot No. 91 in New Haven, known as the Claney lot, then judgment de terris to be entered in favor of said plaintiff against said terre tenants for the sum of $2,000, with interest from May 8d, 1880, but if said plaintiff is not entitled to have said judgment revived as aforesaid, then judgment to be entered in favor of terre tenants, the costs to follow this judgment, and either party to have the right to sue out a writ of error thereon.</p> <p>The court entered the following judgment: Upon consid eration of the facts as presented by the case stated and an examination of the authorities, we are of the opinion that the plaintiff, Alfred C. Knox, administrator of Maria M. Torrence, deceased, is not entitled to recover in this action and to have said judgment revived as against Joseph Johnston and Josiah Kurtz, his assignee, terre tenants of the real estate, conveyed by the said George A. Torrence and. wife to said Joseph Johnston, to wit, the east half of lot No. 91 in New Haven, known as the Claney lot; and it is therefore ordered and directed that judgment be entered on the case stated in favor of Joseph Johnston and Josiah Kurtz, his assignee, terre tenants with costs.</p> <p>The plaintiff thereupon took this writ, and assigned for error the entering of the judgment.</p>

<p>Error to the Court of Common Pleas of Fayette county: Of July Term 1885, No. 767.</p> <p>This was an action on the case brought by Alfred Emerson against James W. Cochran and Lutellus Cochran for the malicious use or abuse of civil process whereby the defendant was arrested and imprisoned in the county jail.</p> <p>The plea was not guilty. The facts sufficiently appear from the charge of the court and the opinion of the Supreme Court.</p> <p>The defendant presented the following point: That if the defendants, at the time of procuring the writ of capias to be issued, and the plaintiff arrested, consulted their attorneys, made a fair statement of the facts to them, as they had reason to believe they existed, and that upon said statement the said attorneys advised the issuing of said writ, and the arrest of the plaintiff, the plaintiff cannot recover in this action. Answer, affirmed. (Second assignment of error.)</p> <p>The plaintiff presented, inter alia, the following points:</p> <p>1. If the defendants included the plaintiff in the capias in order to make him drive the strikers off his land, and not because they believed that he had encouraged the strikers and deterred the defendants’ hands from working, the plaintiff is entitled to a verdict. Answer, refused. (Third assignment of error.)</p> <p>2. Malice may be inferred from the want of probable cause, and both malice and want of probable cause may be inferred from the discontinuance of the capias. Answer, refused. (Fourth assignment of error.)</p> <p>The court instructed the jury in the general charge as follows: This is an action on the case, brought by Alfred Emerson against James W, and Lutellus Cochran, to recover damages for false imprisonment. It appears from the evidence in the case, that sometime in the month of March, 1879, the plaintiff in this case was working at the mines of the defendants for the firm of Brown & Cochran, at their Jim town works in this county, and that the workmen left the mines and refused to work about the 20th or 21st of March, and that after that, although quite a number of them went back to work, some of them did not return to the mines; that the work ran on with those who did see fit to return, until sometime in the month of April following, probably, when a tent was moved on to the land of the plaintiff in this suit, Alfred Emerson, and some strange men came there with a band of music and were interfering with the men employed, or who had been employed about the works of the defendants in this suit, to such an extent that the work was almost, if not entirely stopped; that the defendants in this suit, who were then the plaintiffs in the capias that was afterwards issued, after making an effort to have the tent removed and the parties compelled to leave the neighborhood, came to town and consulted counsel about the matter. It is claimed by the defendants in this suit, that they laid the matter fully and fairly before the counsel, stated the facts as they existed, and received such advice from their counsel as induced them to have a capias issued; that in view of that advice, application was made to an Associate Judge and the writ was issued, and the plaintiff in this suit, along with the others, was arrested ; and the plaintiff claims that he was arrested at his home, brought to this town and confined in the jail from Sunday until Monday, when he procured bail and was released ; and that afterwards, the capias proceeding was discontinued; and he, feeling aggrieved by that action on the part of the defendants, brought this action on the case to recover damages for what he claims to have been false imprisonment. [We have been requested on the part of the defendants in this suit, James W. and Lutellus Cochran, to instruct you, “ That if the defendants at the time of procuring the writ of capias to be issued and the plaintiff arrested, consulted their attorneys, made a fair statement of the facts to them as they had reason to believe they existed, and that upon said statement the said attorneys advised the issuing of said writ and the arrest of plaintiff, the plaintiff cannot recover in this action.” Under our understanding of the law as it exists, we will affirm that point. If the jury should be satisfied that the defendants, James W. and Lutellus Cochran, did consult their counsel, and there is nobody disputes it, both Mr. Ewing and M. M. Cochran, the attorneys, testified that' they were consulted, and that being an undisputed fact in the case, that point will be affirmed, and your verdict should be for the defendants under the view of the law that we take, and with your permission, the prothonotary will take your verdict for the defendants.] (Eighth assignment of error.)</p> <p>Verdict for the defendant and judgment thereon. The plaintiff took this writ assigning for error the answer of the court to the defendants’ points, the answer of the court to the plaintiff’s points, and that portion of the charge included within brackets.</p>

<p>1. A pledgee’s title to negotiable bonds, he being the bona fide holder of them for value, is good against all the world.</p> <p>2. Where one pledges negotiable bonds, as collateral security for a loan made to him by another, and deposits the same in bank for him, for which the bank issues a certificate of deposit to the pledgee, setting out the ownership of the bonds in the pledgee, the bank, in an action of "replevin against it by the pledgee, is estopped from contradicting its certificate to the pledgee and setting up ownership in another, for the possession of tire bank is the possession of the pledgee.</p> <p>3. It is error to admit evidence of a prior pledge of the same negotiable bonds to another, in the absence of proof of any knowledge on part of the pledgee of the mala fides of the pledgor. The rights of the alleged ■prior pledgee he not being a party to the record, as against the subsequent pledgee cannot be adjudicated.</p> <p>4. Gibson v.Lenhart, Receiver, 2 Out., 522, followed.</p>

<p>1. Where a defective recognizance has been entered, the appellant may be permitted to perfect it, or if without fault of his he has been prevented from appealing from the judgment of a justice by the act of the latter, an appeal may be allowed nunc pro tunc if asked for in reasonable tíme.</p> <p>2. In this ease no recognizance was entered. No security was given or offered. The omission so to do was not caused by any act of the justice. There was no error in refusing to permit him to give security nearly two years thereafter and in dismissing the appeal.</p>

<p>1. One partner cannot maintain an action on the case against his co-partners for damages, to which he himself would be liable to contribute, for breach of contract by the partnership; nor can he maintain any other action against Ms co-partners for a partnership transaction, the partnership accounts being unsettled, except a bill in equity, or an action of account render.</p> <p>2. Ozeas v. Foulke, 1 Binn., 191; Hall v. Logan, 10 Casey, 331; McFadden v. Hunt, 5 W. & S., 468; Leidy v. Messinger, 21 B. F. S., 177 followed.</p>

<p>Error to the Court of Common Pleas, of Fayette county: Of January Term, 1886, No. 192.</p> <p>Ejectment by E. K. Hyndman against Robert Hogsett, Abraham O. Tinstman, Arthur W. Bliss, and George C. Marshall, December 16th, 1881, for the undivided one eighth part of the nine foot vein of coal and all the minerals under the coal in those two tracts of land situate in North Union township, known as the Isaac Wood and Jacob Murphy tracts, containing 417 acres, more or less, and also 40 acres entire and in fee simple of the Jacob Murphy tract; reserving enough of said coal to support the surface; also a road to be left open across the 40 acres from the Station House on the Fayette County Railroad toward the mountain. There are on said 40 acres of land 125 coke ovens, railroad tracks, engine and engine house, boilers and machinery, 20 dwelling houses, a brick factory for manufacturing bricks, brick kiln, dry house, steam engine and machinery and stables. Damages are claimed and demanded in the sum of $10,000.</p> <p>Plea: Not guilty.</p> <p>By submission of the parties filed in the ease the decision of the case was referred to the court without a jury.</p> <p>The following facts appeared on the trial before Stowe, P. J., of the Court of Common Pleas of Allegheny county, ,No. 1, holding a special court in and for Fayette county:</p> <p>On the 7th of August, 1871, William PI. Baily, Robert Hog-sett and several others, associated together and formed the partnership of Plogsett, Watt & Co. The firm was organized for the purpose of manufacturing coke out of the Connellsville vein of bituminous coal. The partners bought by written article of agreement from Mr. Hogsett a tract of land and coal at Mount Braddock, in North Union township, Fayette county, Pennsylvania, for §87,400. Mr. Baily was to pay one eighth of this sum, and was then to own one eighth of the land and coal. This is an action of ejectment brought by E. K. Hyndman against Robert Hogsett and his tenants for Win. H,. Baily’s undivided eighth of the said land and coal, which became vested in Mr. Hyndman by an assignment from Mr. Baily, executed under the following circumstances:</p> <p>The partnership of Hogsett, Watt & Co. continued in business for more than seven years, when Mr. Baily became financially embarrassed. In 1878 judgments were entered against him, and on the 29th day of November, 1878, his undivided one eighth in the said land and coal was about to be sold by the sheriff of Fayette county aforesaid, on a venditioni exponas, issued out of the Court of Common Pleas of that county, at No. 69 December Term, 1878.</p> <p>On the day the interest to Mr. Baily was to be sold, before the hour of sale arrived Mr. Baily and Mr. Hogsett signed the following article of agreement. It was drawn by Mr. Boyle, who acted for both parties, and was delivered by them to him for safe-keeping.</p> <p>ARTICLE OE AGREEMENT.</p> <p>It is hereby agreed between Robert Hogsett and W. H. Baity as follows: That said Hogsett does hereby agree that if he should buy the interest of William PI. Baily in the coal and other real property at Mt; Braddock, to .be sold at sheriff’s sale, being the one eighth, the interest in certain coal and land heretofore sold by said Hogsett to Baity by article of agreement, that he will, at any time hereafter within five years, sell and convey to said Baity said interest which may be so bought by him at Sheriff’s sale, for the consideration of one dollar, and the balance now due said Plogsett by Baity on the purchase money for said one eighth under said article of agreement, and whatever sum said Hogsett may have to bid at sheriff sale, with interest from this date,, less any profit said Hogsett may realize from said property, the said Hogsett to have the right also to charge against said Baity, and to be paid by him, his share of the debts of Hogsett, Watt & Co., which said Hogsett may pay, and any other debts which may be incurred in operating said property. The said Baily is to. make known his intention to purchase in writing, and if he should fail to do so within five years this agreement to be null and void. This agreement to be binding in favor of said Baily and his heirs and against said Hogsett and his heirs. Dated November 29th, 1878.</p> <p>• Mr. Hogsett attended the sheriff’s sale and bought Mr. Baily’s undivided eighth in the land and coal for $400. He immediately assumed exclusive possession of it, and has maintained the same ever since. Mr. Baily removed shortly after the sale to the State of Minnesota, where he now resides. After the sheriff’s sale Mr. Baily took no part in the business of Hosgett, Watt & Go. Mr. Hosgett about that time became the sole owner of the partnership except one interest, and his possession of the entire land and coal is not now disputed by any one except the plaintiff in error, who is asserting the Baily title. A bill in equity is pending to ascertain the rights of another partner, but it is not supposed to effect this ejectment.</p> <p>On the 29th of January, 1881, Mr. Baily assigned'his rights under this article to E. K. Hyndman, who brought this suit. The assignment is as follows, viz.: “For value received, I hereby assign, transfer and set over unto E. K. Hyndman and his assigns, all my right, title and interest in this article of agreement, and all benefit and advantage to be derived therefrom.” This assignment is under seal, duly acknowledged and recorded.</p> <p>The following are the findings of fact by the court: The evidence shows Hogsett (one of the defendants) in possession of the property described in plaintiff’s writ at the time suit was brought, and it is admitted that title was in him on the 7th of August, 1871, at which time he contracted to sell to-Wm. H. Baity and four others (Harlan, Rankin, Taylor and Watt) the undivided five eighths of the nine foot vein of coal, etc., in certain lands at the rate of $200 per acre, and also the five eighths of forty acres of land at the rate of $100 per acre. The interest of Harlan, Rankin and Taylor, three of the parties, is now vested in Hogsett. That of Watt belongs to D. Kaine, Esq., and plaintiff claims he owns the interest of W. H. Baity under said contract as his assignee. After its execution Baity paid some $10,874.39 (as appears by the receipts on’the agreement). His share of the original purchase was $10,925 without computing interest, which would seem to leave due and owing as principal and interest at the lime tender was made 15th March, 1881, from $3,455 to $3,460. Baity failed, and his interest in the property having been seized on execution issued upon a judgment, viz.: Asa Harris v. Wm. H. Baily, No. 28, September Term, 1878, was sold to defendant Hogsett, 29th November, 1878, and deed made him by the plaintiff dated and acknowledged December 19th, 1878.'</p> <p>Previous to the sheriffs sale and apparently the day it took place, Hogsett & Baily entered into the agreement above set out, bry which it was agreed that if Hogsett should pay the interest of Baily in the property at sheriff’s sale he would within five years sell and convey said interest to Baily for the consideration of $1 and the balance then due Hogsett on the purchase money, and whatever sum Hogsett might bid at sheriff’s sale, with interest from that date, less any profit Hogsett might realize from the property, he to have the right also to charge against Baily and to have paid by him his share of the debts of Hogsett, Watt & Co., which Hogsett might pay, and other debts incurred in operating said property; Baily to make known his intention to purchase in writing within five years, otherwise the agreement to be void, and to be binding in favor of Baily and his heirs and against Hogsett and his heirs. The evidence shows the written agreement was intended by both parties to comprehend no other persons than the heirs of Baily, and that it was not intended to give Baily the right to assign his interest. On the 29th of January, 1881, Baily assigned all his interest under this last agreement to E. K. Hyndman by writing indorsed upon it, under seal. On the 15th of March, 1881, W. H. Coldren, Esq., attorney for Hyndman, tendered Hogsett $3,679.78, declaring to him that he did so for Hyndman as the amount due him (Hogsett) from Baily for his interest in Mt. Braddock (this property). Coldren mentioned the amount he was tendering Hogsett, who said he would see him day after to-morrow, and went away refusing to take the money. On the 15th of December, 1881, a motion, dated December 7th, 1881, was served on Hogsett by Hyndman, notifying him of the assignment to Hyndman of the article of agreement above referred to, and requiring him to have it recorded, as also the sheriff’s deed for the property. It further appears from the evidence that Hog-sett, Watt & Co. (by Hogsett) and inter alia Baily, leased the property in question to Samuel Colvin and J. Reed Torrence, August 29th, 1878, and the same Colvin and Chas. B. Murray, September 1st, 1879. On. the first lease Hogsett got the rent. On the 28th of February, 1881, Hogsett sold the entire property to A. O. Tintsman for $49,000; 27th February, 1881, Coldren, as attorney for Baily, notified Hogsett that he was ready to pay him all the money and interest due him on the article of agreement, above recited, relative to the Mt. Braddock coal works, and that he was ready to comply with it according to the terms and effect. There is considerable evidence on part of plaintiff in regard to what the works earned or should have earned up to the time plaintiff signified his desire to pay and have a re-conveyance under the agreement of November 29th, 1878. but I am compelled to find the fact to be that there was a large amount due by Baily to Hogsett under the contract for re-conveyance of the property, if we take into consideration the sums properly expended for permanent and necessary improvements upon the works to make them productive, as I think under the agreement we are bound to do. How it may be without such improvements I am not able to say, as I have failed to get the balance sheets offered in evidence, which would likely show the exact amount. This, however, I do not deem material, as I find that in no case was the tender sufficient to cover the amount due Hog-sett under the contract. The defendants also show that June 14th, 1878, the Dollar Savings Bank, of Uniontown, obtained judgment against Baily for $3,942.89, and that the property in suit was sold on a pluries vend. ex. No. 44, March Term, 1882, to R. H. Lindsey, Esq., and sheriff’s deed executed and delivered to him for the same. Under these facts, I am of the opinion that plaintiff cannot recover in this suit.</p> <p>1st. Because he has no right as assignee under the agreement between Baily & Hogsett to maintain this suit, without reference to the sufficiency of the tender.</p> <p>2d. Even if plaintiff, under the assignment by Baily, was vested with his right and interest under said agreement, the tender was insufficient without reference to the profits of property, or the costs of operating it.</p> <p>3d. The tender is greatly insufficient, taking intq consideration the profits and costs of operating the property as comprehended by the terms of the agreement.</p> <p>Judgment was entered for the defendants by the court, after overruling the plaintiff’s exceptions to the findings of fact and conclusions of law by the court. These exceptions sufficiently appear in the assignments of error. The plaintiff took this writ assigning for error, inter alia,</p> <p>1st. The court below erred in overruling the first exception of the plaintiff in error to the finding of the court below, which exception is as follows, viz.:</p> <p>“The court erred in finding as follows, viz.: That the plaintiff cannot recover in this suit, 1st. Because he has no right as assignee under the agreement between Baily and Hog-sett to maintain this suit without reference to the sufficiency of the tender.”</p> <p>2d. The court erred in overruling the second exception of the plaintiff in error to the finding of the court below, which exception is as follows, viz.:</p> <p>In finding’ ’that, " 2d. Even if plaintiff under the assignment by Baily was vested with his rights and interests under said agreement the tender is insufficient.”</p> <p>3d. The court erred in ovérruling the third exception of the plaintiff in error to the finding of the court below, which exception is as follows, viz.:</p> <p>In finding that “tender is greatly insufficient, taking into consideration the profits and costs of operating the property as' comprehended by the terms of the agreement.”</p>