Volume 112 — Pennsylvania State Reports

<p>Error to the Court of Common Pleas of Fayette county Of July Term, 1886, No. 166.</p> <p>This was an action brought by the Fayette City Borough against William G. Huggins, before a Justice of the Peace, to recover wharfage. The justice gave judgment for the plaintiff for $26.00. The record shows the following:</p> <p>Appeal by the defendant from the judgment of Justice Holmes — debt $26.00. November 8th, 1882. Bail- entered in the sum of $70.00 conditioned for the payment of all costs on the part of the appellant. Transcript filed November 29th, 1882, and plea of mil debet entered for the defendant see. reg. February 12th, 1885, jury sworn, tried, and same day verdict for the plaintiff for the sum of thirty dollars, with leave to the court to enter a judgment for the defendant if the court should be of opinion that the plaintiff is not entitled to recover upon the reserved point. And now to wit, June 12th, 1885, after consideration thereof, it is ordered and directed that the rule to show cause why judgment should not be entered in favor of defendant upon the point reserved, non obstante veredicto, be made absolute and judgment be entered in favor of the defendant, non obstante veredicto.</p> <p>The plaintiff took this writ, assigning for error the action of the court in entering judgment for the defendant, non obstante veredicto.</p>

<p>Appeal from the Orphans’ Court of Fayette county: Of January Term, 1886, No. 272.</p> <p>This was an appeal by George E. Baldwin from a decree of the court, refusing to revoke and set aside a decree of the samé court revoking letters of administration, granted to H. G. Frick. This decree appointing Frick administrator had been made on a petition in which George E. Baldwin had joined. An appeal had been taken by Frick to the Supreme Court to review the action of the court in making this decree. The following is the decree of the court in this case from which this appeal is taken:</p> <p>And now December 17th, 1885, this matter came on for hearing and was argued by counsel. And now, December 21st, 1885, after consideration thereof, it' appearing to the court that an appeal from the decree entered June 12th, 1885, revoking the letters granted to H. C. Frick, had been taken prior to the presentation of the petition of George E. Baldwin, for a rule to show cause why said decree should not be revoked and set aside, etc., etc., and it further appearing to the court that a certiorari had been filed in said matter prior to the hearing on the rule granted to the said George E. Baldwin, it is ordered, adjudged and decreed, that said petition and all proceedings had thereon be dismissed at the costs of said petitioner.</p>

<p>1. The proceedings by attachment under the act of 1869 are reviewable on certiorari.</p> <p>2. A writ of attachment not made returnable on the first return day, . next after the issuing thereof, as commanded by the statute, will be quashed.</p>

<p>Error, to the Court of Common Pleas of Crawford county: Of January Term, 1886, No. 227.</p> <p>Assumpsit by Garson Shamburg against W. H. Abbott, George Moody, W. W. Thompson et ah, late partners doing business under the firm name of the Citizens Bank, to recover the sum of 114,250.82, which he paid to the creditors of said firm on account of debts of said firm contracted after his withdrawal from said firm, and for which he had become liable to said creditors by reason of his having been a partner and not having given notice of his withdrawal. The pleas were, wow assumpsit, non assumpsit infra sex annos, payment with leave, and as to some of the defendants the additional plea of bankruptcy.</p> <p>The following facts appeared on the trial of the ease before Church, P. J.:</p> <p>In the year 1870 the defendants formed a co-partnership association under the name and style of “ The Citizens’ Bank,” for the purpose of transacting a general banking business. In June, 1871, the plaintiff purchased certain shares in the association, amounting to the sum of two thousand dollars, and thereby became a member of the association, and so continued and was so advertised until the 23d day of December, 1872, when he sold his interest to one of the other members. The association thereafter continued the banking business without any apparent change of membership until the month of October, 1878, when it became insolvent and closed its doors. The plaintiff, having neglected to give such notice as was requisite to relieve him from liability as a partner for debts contracted by the association after his withdrawal, was made a co-defendant with the remaining members in many suits brought by depositors and other creditors in the Common Pleas of Crawford county.</p> <p>To these suits Shamburg made defence that he had withdrawn from the association on the 23d of December, 1872, and was not liable for debts contracted after that date or before he became a member. The judgment of the Common Pleas was against him upon both points. One of the suits, viz.: that of Ruggles v. Shamburg and others, doing business as The Citizens’ Bank, reported in 2 Norris, 148, as Shamburg v. Ruggles, having been removed to the Supreme Court, the judgment of the Common Pleas was reversed as to debts contracted before-Shamburg became a member of the association, but affirmed as to debts contracted after his withdrawal.</p> <p>The decision upon the latter point, which alone is material here, was put on the ground of Shamburg’s failure to give notice of his withdrawal. After this decision Shamburg made the best terms he could with the creditors of the association who had brought suits, and others who threatened to sue, and in so doing paid out on account of debts contracted after his withdrawal the sum of 114,250.82, which payments so made were, to the extent thereof, in relief of the defendants. To recover the money so paid the plaintiff herein filed a bill in equity against the defendants herein, setting forth substantially the same facts relied upon in the present suit, and in addition the fact that the association had large assets, and no account had ever been rendered of their disposition. To this bill the defendants demurred, and for cause of demurrer said, among other things, “Because it appears from said bill that the plaintiff sold and transferred all As interest in the alleged co-partnership on the 21st day of December, 1871, and from and after that time was not a co-partner therein or interested in the business, accounts or assets of the same, and the plaintiff has no just right or claim to any discovery, account or relief from the defendants, or either of them-, by reason of any thing appearing in said bill.” The demurrer was sustained, and thereafter the present action of assumpsit was brought to recover the same moneys.</p> <p>The plaintiff having proved his membership in the partnership from June, 1871, until December, 1872, his sale of his interest therein to one of the partners at the latter date and compulsory payment of debts of the association contracted by it after his withdrawal, rested, and thereupon the court, upon motion of the defendants, ordered a nonsuit.</p> <p>■ The defendants were sued as partners, and there was no denial of the partnership by affidavit or otherwise. The rules of court in such case dispense with proof of partnership.</p> <p>A motion was made by the plaintiff to take off the nonsuit which the court overruled, and allowed the nonsuit to stand. In so doing the court filed the following opinion :</p> <p>■ The plaintiff brought suit against the defendants as partners doing a banking business, and as his cause of action avers that he was at one time a fellow partner of the several defendants, and as such was compelled by law to pay a large amount of the indebtedness of the banking partnership to its creditors, and therefore claims from his several co-partners to be made good for such payments.</p> <p>The plaintiff claims, however, that although he was held by the courts to be a partner with these defendants named, as to third parties doing business with the bank, yet he was not held and could not be held such partner as between the parties themselves. He therefore claims as a surety rather than as a co-partner seeking reimbursement, on the ground that, whatever his situation might be, whether surety or co-partner, plaintiff could'not recover in this form of action, and under the present pleadings, or at law, he was non-suited at the conclusion of his evidence.</p> <p>I have not the pleadings before me as I write, nor was reference made to them in the argument, hence I have no conclusion on their completeness or. incompleteness. Yet it is plain to me that the plaintiff cannot recover from these defendants in this form of action. His remedy, if any he has, is in equity.</p> <p>He has sued a dozen or a score of individuals, alleged co-partners, in assumpsit,, and though he may have proved with more or less distinctness that each and every of the defendants had been engaged as co-partners in the banking business, and that he himself had been compelled, either after litigation ended, or to avoid litigation threatened, to pay a large amount of the indebtedness of the banking firm, yet he offered no evidence whatever, as of course he had none, to show any express promise or undertaking on the part of even one of the defendants to pay him, the plaintiff, any portion of the sum so alleged to have been paid by him, hence their liability or the liability of any one of them depends solely on the ipiplied obligations arising out of the partnership relation.'</p> <p>But it is settled too well in this State to admit of controversy that one partner cannot maintain assumpsit against his co-partners to recover the excess of his advances unless there has been a settlement of the áccounts and a balance has been struck. This rule applies whether the subject-matter or property of the partnership has ceased to exist or not: Leidy v. Messinger, 71 Pa. St., 177. As is well said in the cited case, “ It would beget an intolerable multiplicity of suits to allow one partner to sue another for contribution as often as he paid moneys or made advances on account of the partnership.”</p> <p>To prevent such burdensome litigation the law has wisely provided that the partnership accounts shall be settled in one proceeding, either account render or by bill in equity; and that in the absence of an express promise to repay, assumpsit will not lie by one partner against another to recover for advances until there has been a settlement of the partnership accounts. To the same effect will be found the cases of Klase v. Bright, 71 Pa. St., 186; McFadden v. Hunt, 6 W. & S., 468,. and many others which it were a waste of labor to cite.</p> <p>. In the case before us it appeared in evidence, or at any rate it was known officially to the court from its own records, that some, and indeed many, if not all, of the defendants have paid out various and large sums of money from time to time in paying the creditors of the banking partnership, and possibly in the adjustment of the whole accounts recompense might have to be allowed to them — some more, some less, — and not only from the plaintiff, but from each other.</p> <p>It is most absurd to say that all these various intricacies and adjustments could be settled in this common law action of indebitatus assumpsit. The question has passed beyond the realm of argument.</p> <p>But the plaintiff claims that he was simply a surety for the co-partnership as an entirety, and as such, having been compelled in the ways hereinbefore pointed out, to pay many of its debts, or a large percentage thereof, he is entitled to contribution from and to recover against the whole co-partnership as his principal, and in this common law action of assumpsit. H.e seeks to establish his position as surety in this way: That he, being a partner at one time with defendants, sold and transferred in good faith his share in the co-partnership to one of the members thereof; that thereby he became released from the debts of the firm as to all the remaining partners themselves, even if not as to third persons dealing with them.</p> <p>The singular and somewhat unique nature of the banking co-partnership associations, of which these defendants’ bank was one, has been frequently commented upon by the courts, but we have here very little to do with it further than to say that its articles of association provided for the assent and consent of the members to any sale or transfer of the share or interest of one member to another, or to a third person, and lacking which the same would be of none effect.</p> <p>That assent did not appear in evidence in the ease and presumably did not exist. Hence it would appear that such sale or attempted sale did not have the effect of dissolving the contractual relations between the plaintiff and these defendants, his co-partners, unless indeed it was so in regard simply to the plaintiff’s vendee of his share interest.</p> <p>If this be so, the plaintiff could not have contribution or indemnity from the defendants en bloe as his principals, but must seek it as an equitable right of contribution between partners, but this, as we have seen, he cannot obtain on the common law side of the. courts in this form of action.</p> <p>If the' plaintiff’s purchaser of his share interest agreed to indemnify and save harmless the plaintiff from the past or future debts of the firm, such agreement might be enforced against such purchaser in an ordinary action of assumpsit, or other proper action, and recovery might be had against him on an implied contract of indemnity if no express agreement existed.</p> <p>The relation of principal and surety might arise between the parties growing out of the contract of purchase and sale alone. But that is not this case. The plaintiff has sued the whole partnership. This we have shown he cannot do successfully, because,</p> <p>First. — If a partner, his remedy is at equity.</p> <p>' Second. — If not a partner, he holds the contractual relation of surety only with the vendee of his share interest and with no one else.</p> <p>The nonsuit was properly granted, and the motion to take off the nonsuit is refused.</p> <p>J udgment was entered and the plaintiff thereupon took this writ assigning for error the refusal of the court to take off the nonsuit.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of January Term, 1886, No. 255.</p> <p>This was an action of trespass quare clausum fregit for cutting and removing timber trees from the lands of the plaintiffs by the defendants brought by Haniel Clark, Edwin P. Clark and Henry A. Drake against William G. Sargeant, Samuel Gillett, Thomas J. Shonts and -Charles Stewart.</p> <p>The plea was not guilty, with the special plea that the cutting and removing said timber trees was by mistake and under the belief that they belonged to the defendants, with the offer to pay to the plaintiffs the full value of the same, viz., $223.41, and a tender of judgment for that sum with interest and cost of suit. Verdict for the plaintiffs for $450.</p> <p>• Subsequently the plaintiffs obtained a rule to show cause why the court should not.treble the single damages or value of the timber cut and removed, and double the single damages or value of the timber cut and not removed, as provided by Act of Assembly. - The court afterwards' discharged the rule.</p> <p>The plaintiffs excepted to this, and thereupon took this writ assigning for error the action of the court in discharging the rule.</p>

<p>1. A'step-father is under no legal obligation to support a step-child after ■ the death of its mother. If the child resides in Ms family and he maintains, clothes and educates it, he is not entitled to compensation, without proof of an express contract to pay therefor; but if the guardian of the child, in good faith, and under the advice of counsel, contracts with the step-father, who is unable to support the child, to pay him for its sup- , port, the amount received by him from the United States as a pension for the support of the child, in this case $1.35 per week, he is not guilty of mismanagement of the trust, and upon Ms filing his account, he will not be surcharged with the amount so paid the step-father.</p>

<p>Appeal from the Court of Common Pleas of Delaware county: Of January Term, 1885, No. 131.</p> <p>Appeal of William Anspach and M. Hall Stanton from the decree of said court in the distribution of the proceeds of the sheriff’s sale of the real estate of Henry C. Eyre, Thomas H. Mirkil, Jr., and William Dougherty.</p> <p>The following facts appear from the report of the Auditor, J. N. Shanafelt, Esq., appointed by the court to distribute the fund:</p> <p>On March 7th, 1881, Henry C. Eyre, Thomas H. Mirkil, Jr., and William Dougherty purchased from William Anspach and M. Hall Stanton, the appellants, certain real estate in the city of Chester, known as the Chester Iron Works, and for part of the purchase money executed a mortgage to Anspach & Stanton for $7,500, which was afterwards reduced by payment to $5,500. This mortgage when it was given was the only lien on the premises, except a prior mortgage, which does not concern the questions in this case. The purchasers, under the firm name of H. C. Eyre & Co., immediately took possession of the premises, and prosecuted the business of iron founders and machinists, which had theretofore been carried on at the same place.</p> <p>Your Auditor finds that H. C. Eyre & Co. were doing business from the spring of 1881 up to June of 1883, when they made an assignment for the benefit of creditors to William Ward, Esq. On March 7th, 1881, the said firm of H. C. Eyre & Co. gave a mortgage to Anspach & Stanton upon their real estate in the city of Chester, whereon they conducted their business.</p> <p>On December 1st, 1883, execution was issued upon said mortgage, the property was sold by the sheriff and purchased by said Anspach & Stanton for the sum of $500.</p> <p>On June 19th, 1882, the council of the city of Chester passed an ordinance, levying the city taxes for 1882. On the same date the school taxes for 1882 were levied. On April 2d, 1883, the city council passed an ordinance levying the city taxes for 1883.</p> <p>On June 15th, 1883, the school tax rate was laid; on February 27th, 1882, the county commissioners levied the taxes for said year, and on March 7th, 1883, the commissioners levied the taxes for said year.</p> <p>The city taxes for 1883 amount to . . . $101.00</p> <p>“ county “ “ “ “ “ . ' . . 35.35</p> <p>“ school. “ “ 1882 84.83</p> <p>“ “ “ “ 1883 “ “ ... 40.40</p> <p>On August 27th, 1883, a lien for city taxes for the year 1882, amounting to $100, was filed by Mr. Henry Abbott, a former collector.</p> <p>The said lien was accepted by the city of Chester and credit given Mr. Abbott on his account with the city. Your Auditor finds that the city, county and school taxes for the years 1882 and 1883 were duly assessed upon the real estate sold by the sheriff from which the said fund for distribution arose. Your Auditor finds that Ellis Smedley and William Hinkson, on and before the day of the sale, notified the sheriff that these taxes were due and unpaid.</p> <p>Your Auditor also finds that there was upon the premises of H. C. Eyre & Co., during the time they were conducting their business, personal property ranging in value from $1,500 to $3,000.</p> <p>There are two kinds of taxes for your Auditor to consider. Those for which no lien has been filed, and those for which a lien was filed.</p> <p>The city, county and school taxes for the year 1883 are undoubtedly, under the Act of 1873 applying to Delaware county, made a lien upon the real estate for one year. The sale of the lands against which they were a lien took place before the year expired, and as''they are divested by the said sale, the fund arising from said sale must certainly be looked to for payment: See Borough of South Chester v. Broomall, 1 Del. Co. Reports, page 58.</p> <p>The other taxes, are the city taxes for the year 1882, for which the collector filed his lien and was exonerated by the city.</p> <p>It is argued by the counsel for Anspach & Stanton that the .collector was bound to go upon the personal property upon the premises for his taxes before filing his lien. The city taxes for 1882 are a lien on the real estate sold under the authority of Treas. of Delaware county v. McClees, 1 Delaware County Reports, 73. By authority of that case though a year may have expired from the time of the levying to the date when the lien was filed, the filing of the claim continues the lien as against the owners, and would only fail as against a purchaser or mortgagee without notice.</p> <p>It is immaterial whether there was any personal property on the premises out of .which the collector could have got his taxes.</p> <p>The fund in the hands of the assignee could not be looked to for the -payment of any of these taxes, for he is not an owner in fee as purchaser, but only a mere trustee. The fee may revert to the assignee: 1 Barr, 104; 1 P. F. S., 204, and 15 P. F. S., 135.</p> <p>The Auditor distributed the fund to the payment of all the taxes, which with the expenses of the audit, exhausted the fund.</p> <p>Anspach & Stanton filed exceptions to this distribution, which the court dismissed, confirmed the report of the Auditor and directed that the fund be distributed in accordance with the report.</p> <p>They thereupon took this appeal assigning for error the said decree of the court.</p>

<p>Error to the Court of Common Pleas of Chester county: Of January Term, 1885, No. 294.</p> <p>Case brought by Frank P. Miller against the Pennsylvania Railroad Company, August 24th, 1883, for the recovery of damages resulting to him by reason of the insertion of a pipe in Brandywine Creek, above the plaintiff’s mill, on the land of the defendant, and the consequent diminution of the water supply at the mill of the plaintiff. Plea, not guilty.</p> <p>The following facts appear on' the trial before Ftjthet, P. J.:</p> <p>The defendant in error is the owner, as tenant for years, of a paper mill near Downingtown, Pa. The mill is run by water power, and is wholly supplied with water drawn from a dam in the Brandywine creek. The breast of the dam is erected on the lands of the defendant in error. The back or still water of the dam extends up the bed of the Brandywine creek several hundred yards above and beyond the point where the railroad of the plaintiff in error crosses said creek on a bridge over the same. The right to maintain said dam, and back the water above and across the line of the railroad, was 'Convejmd to defendant’s predecessors in title in the year 1798, and has belonged to them ever since that date, and has been maintained as it now exists for over half a century.</p> <p>The plaintiff in error is the owner by purchase from the Commonwealth of 'Pennsylvania of a railroad running from Harrisburg to Philadelphia, which crosses the Brandywine creek, where the same stands as still water in the defendant’s dam, several hundred yards below the head of the same. At this point of crossing the railroad is conducted over the dam upon a bridge. The bed of the stream beneath said bridge was not at any time physically occupied by the railroad of the State, and has not been since it was purchased by the plaintiff in error.</p> <p>For some years prior to 1881, the plaintiff in error was supplied with water for the uses of their road by the Downingtown Gas and Water Company, from a point about a mile west of the Brandywine creek. In the summer of 1881, the plaintiff in error, being unable to agree with the Water Company for the price to be paid for this supply of water, which had previously been at the rate of $2,000 per year, erected an engine on the banks of the dam of the defendant in error, for the purpose of supplying themselves with water to be pumped therefrom. The defendant protested but to no avail. A six inch iron pipe was inserted in his dam, two or three feet below the surface thereof, and large quantities of water have been since constantly pumped therefrom by day and night, and conveyed in pipes to the tanks of the plaintiff in error, a mile distant. By this act, the defendant’s water supply was materially diminished, and he subjected to considerable loss, for which this suit was brought.</p> <p>After the case of the plaintiff in the court below was in, the defendant, to show a right to take the water without liability to this suit, offered in evidence the deed from the Commonwealth for the main line of the public works. Neither the charter of the plaintiff.in error, nor the supplemental Acts of Assembly, conferring special privileges upon pt, were offered as proofs or specially pleaded.</p> <p>’ No compensation was eve'r made the defendant in error, nor was security given'before or since the water was taken.</p> <p>The defendant presented the following points, all of which the court refused to affirm :</p> <p>I. If by reason of the use made by the company defendant of the water of the stream upon which the plaintiff’s mill is situated, the plaintiff has suffered any damage, the plaintiff must pursue the statutory remedy provided in the Act of Assembly for the recovery of compensation for the alleged injury, and the present action cannot be maintained.</p> <p>’ II. The Legislature having provided a specific remedy for the recovery of damages sustained by the plaintiff in this ease, he cannot have recourse to the present action, and the verdict of the jury must be for the defendant.</p> <p>' III. By Virtue of the Act of May 16th, 1857, the Pennsylvania 'Railroad .Company had the right to take the water from Brandywine creek for the operation and improvement of its railroad, and if in taking such water the plaintiff had suffered any damage, his remedy is by a jury of view, to assess such damages in accordance with said Act of Assembly, and the present action cannot be maintained.</p> <p>IV. The-defendant in this- action having purchased its railroad from the Commonwealth of Pennsylvania, has conferred upon it by the State the right of eminent domain, and is not liable in the present- action for consequential damages to the defendant if any have been suffered by him.</p> <p>V. The Act of May 16th, 1857, by virtue of which the company defendant became the purchasers of the main line, having made no provisions for the payment of consequential damages occasioned by the operating or improving the railroad purchased by the defendant, there can be no recovery in the present action, and the verdict of the jury must be for the defendant.</p> <p>VI. The defendant having purchased the Philadelphia and Columbia Railroad, were bound to keep the same in good repair and operating condition, and for this purpose had the right to take water for the use of their road, from the Brandy-wine creek, without being liable for consequential damages to the defendant in so doing.</p> <p>VI. All the acts proven by the plaintiff to have been done by the defendant were within the powers conferred upon it by the Legislature, and for such acts the defendant is not responsible to the plaintiff.</p> <p>VIII. The defendant has the right to repair, enlarge or improve its railroad for the purposes for which said road was constructed and maintained by the commonwealth, and the plaintiff cannot in this form of action recover damages for any such acts of repairs, enlargement or improvement, and the verdict of the jury must be for the defendant..</p> <p>IX. Under all the evidence in this case the verdict of the jury must be for the defendant.</p> <p>in the general charge the court instructed the jury, inter alia: “We say to you that there is nothing in the law to prevent the plaintiff recovering damages for consequential injury which he may have suffered ” from the defendant inserting his pipe into the Brandywine and taking water, therefrom.</p> <p>' Verdict for the plaintiff in the sum of $750,. and thereupon judgment, whereupon the defendant took this writ, assigning for error the refusal of the court to affirm the nine points above set out, and that portion of the charge above cited.</p>

<p>1. A testator in Ms will directed Ms executors “to inclose with, a good and substantial iron fence the Friends’ Meeting-house grounds, as also the school-house grounds and the Friends’ burial ground.” These three grounds were adjoimng, held, that under the circumstances, there was no latent ambiguity as to the testator’s intentions to inclose each of said grounds on all sides.</p> <p>2. Equity has jurisdiction to establish a right under a will and to conrpel the performance by the executors of their duties incident to that right, under said will.</p> <p>8. The adjudication of the Orphans’ Court of a matter, wherein the executors are accountants and the legatees under the will are exceptants, does not estop a beneficiary from proceeding in equity to establish Ms rights ahd to compel their performance.</p>

<p>1. The legal measure of damages for constructing a railroad through the land of another, by a railroad company, is the difference between what the properly would have sold for, before the construction of the road, and what it would have sold for after the road was constructed,</p> <p>2. The adjustment of this difference involves, in all cases, a fair and just comparison of the advantages and the disadvantages resulting from the opening and the operation of the road and the construction of its works; but the advantages to be considered are such only as are special and the disadvantages such as are actual. The question in each ease is, whether or not the special facilities afforded by the improvements have advanced the market value of the property beyond the mere general appreciation of property in the neighborhood. So also on the other hand, the disadvantages must be actual, not speculative; they must be such as substantially affect the present market value of the land. Mere speculative damages cannot be allowed.</p> <p>3. In assessing damages to the land owner in such case, the risk of fire, necessarily following the proper and lawful use of locomotives, must be taken into consideration ; but this only as it affects the market value of the land.</p> <p>4. All such matters as. owing to the particular location of the road, may affect the convenient use and future enjoyment of the property, are proper for consideration; but they are to be considered in comparison with the advantages only as they affect the market value of the land.</p>

<p>Certiorari to the Court of Quarter Sessions of the Peace, of Delaware county: Of January Term, 1886, No. 247.</p> <p>This was a certiorari to bring the record and all the proceedings of said court in the matter of the incorporation of the Borough of Sharon Hill before the Supreme Court.</p> <p>The record showed that on September 21st, 1885, certain citizens of the Borough of Darby and the Township of Darby, in Delaware County, Pennsylvania, presented their petition to the Court of Quarter Sessions of said count}', setting out pertain boundaries as a proposed new borough to be called the “ Borough of Sharon Hill,” and praying the said court to cause 'their application to be laid before the grand jury, and if a majority of said grand jury should, after full investigation, certify to the said court that the provisions of the Act of Assembly had been complied with, and that it was expedient to, grant the prayer of the petitioners, that said court would confirm said judgment, and that upon compliance with the several Acts of Assembly, the said village of Sharon Hill should be deemed an incorporated borough by the style and title of the “ Borough of Sharon Hill.”</p> <p>On the same day, the said court caused the said petition to be laid before the grand jury, then in session.</p> <p>On September 24th, 1885, the grand jury returned the said petition to the said court, upon which was the following indorsement : “ The grand jury approve of the within petition.”</p> <p>On October 5th, 1885, the petition of the Borough of Darby, by its Burgess and Council, was presented to the said court, praying to have that part of the Borough of Darby included within the limits of the proposed new Borough of Sharon Hill, excluded therefrom. This application was heard by the said-court, and on December 7th, 1885, the court, in a written, opinion, refused the application, and on December 24th, 1885, made a final decree incorporating the new borough, retaining, within its limits some three hundred acres of the Borough of Darby.</p> <p>The Borough of Darby thereupon took this certiorari, assigning for error, inter alia, the decree of the court incorporating the Borough of Sharon Hill, including within its limits a part of the incorporated Borough of Darby.</p>

<p>1. Where an operator of a coal mine has used reasonable cai'e in the selection of a mine boss, he is not responsible to a miner for an injury to ' him, resulting from the negligence of the mine boss.</p> <p>2. A mine boss is a fellow-servant of the miner.</p> <p>3. Lehigh Valley Coal Co. v. Jones, 5 Norris, 432; Delaware & Hudson , Canal Co. v. Carroll, 8 Id., 374; Keystone Bridge Co. v. Newbury, 15 Id., 246, followed.</p>

<p>Error to the Court of Common Pleas, of Somerset county: Of July Term, 1885, No. 187.</p> <p>Assumpsit brought by John Usaw and Lydia Usaw, his wife, against the Somerset County Mutual Fire Insurance Company, November 1st, 1883, to recover the insurance on a two-story frame house, which was burned between one and two o’clock on the morning of the 13th of May, 1883.</p> <p>The following facts appeared on the trial before Baer, P. J.:</p> <p>The policy of insurance on which the suit was brought was issued on the 1st day of February, 1883, and insures “Dr. John Usaw and wife against loss or damage by fire, to the amount of twenty-four hundred dollars on the property described in the application which is declared to be a part of the policy.” The property insured was a “two-story stone and frame house and store-room, and a stone and frame spring and ice house.” A tenant occupied the property to the termination of his lease, which was on the 1st day of April, 1883, and then, after this time, the property was left unoccupied. The key to the house was sent to Usaw by the late tenant on the 2d day of April, 1883, in a registered letter, with notice that the buildings were unoccupied. It was admitted that Usaw received the registered letter containing key and notice.</p> <p>About the 10th of April of the same year, Usaw was at Friedline’s Mills, where the building was located, and was around and in it. He left there and went home without putting a tenant in the house, and without giving notice of this to the company.</p> <p>On the night of the 11th of May, 1883, Usaw, who.lived some two hundred miles away from the insured property, was seen near it. When he was seen there and asked where he was going at that late hour of night, he told him a falsehood, and left.</p> <p>He explained this by saying that he had lost his pocketbook and was then on his way to search for it, and until he found it he did not care to have any one know where he was going.</p> <p>On the afternoon’of the next day, the 12th'of May, he was again seen-around the property, heard in the house, and seen locking the front door; that night, or rather in the morning between one and two o’clock, the fire was first seen bursting through the eaves of the roof.</p> <p>The property when rented only yielded from $55 to $60 rent per annum. The burnt portion of the buildings was valufed by the plaintiffs,’ at the time of the insurance, at $3,000. Under the policy the plaintiffs are entitled to recover two thirds of the cash value of the buildings burned, at the time of the fire.</p> <p>■ The defendants set up as one of their defences that Usaw had burned the building.</p> <p>The application, which was putin evidence by the plaintiffs, set out that the premises insured w'ere “ occupied by a tenant for dwelling and store.”</p> <p>The policy provides “that in case the above mentioned premises shall at any time, after making, and during the time this policy would otherwise continue in force, be so altered or appropriated, applied or used, to or for the purpose of carrying on or exercising therein any trade, business or vocation, which according to the By-laws added conditions, class of hazards, or rates hereto annexed, would increase the hazard, unless it be by the consent and agreement in writing of this corporation, and indorsed upon this policy, then and from thenceforth so long as the same shall be so appropriated, applied or used, this policy shall cease, and be of no force and effect.”</p> <p>Article 15 of the by-laws, which are printed on the back of the policy and made a part thereof, provides: “ Applications for insurance, or for any change in a policy of insurance, in all cases, may be passed upon, or approved, pr rejected by two directors.”</p> <p>Article 19 provides that, “ Whenever any alteration shall be made in any building insured which changes the class of such building, by increasing the risk, such alteration shall void the policy, unless the insured give notice to the secretary of the company, and pay a sum in addition equal to the increased hazard.”</p> <p>The defendant claimed that the insured building was so appropriated, applied and used, as to increase the hazard and change the class of such building, and that the evidence should have been admitted, so that this question could have been submitted to the jury.</p> <p>The defendant claimed that the plaintiffs did not comply with the terms of the application, which is declared to be made a part of the policy; therefore,’the policy was forfeited, and the court should have instructed the jury as requested, to find for the defendant.</p> <p>The application signed by John Usaw and Lydia Usaw declares that “if any untrue answer has been given to the foregoing interrogatories, whereby the said company have been deceived as to the character of the risk, or if any change be made as to tenants or occupancy of these- premises, without being notified to this company and indorsed upon their policy, then this insurance to be void, and the policy be of no effect.”</p> <p>The moving out of the tenant, with notice to the plaintiffs, and the buildings remaining unoccupied until burned, covering a period of six weeks, the defendant held was a change of “ occupancy of the premises,” and no notice being given to the company, worked a -forfeiture of the policy.</p> <p>The defendant made the following offer:</p> <p>“ The counsel for the defendant propose to prove by John Hicks, the witness on the stand, that the plaintiffs gave no notice to the company that the property insured was left vacant for a period of six weeks; that the building was insured as a dwelling-house and store, and that by reason of the property being left unoccupied, the hazard was increased to the company; this for the purpose of showing that the acts of the plaintiffs worked-a forfeiture of the policy.”</p> <p>Objected to, that under the policy no such notice was required, and that there was no warranty or representation that the building was to continue to be occupied as a storehouse and dwelling, and the testimony is irrelevant.</p> <p>Objection sustained, exception noted and a bill sealed for the defendant. (First assignment of error.)</p> <p>The defendant presented inter alia the following points: That inasmuch as the building which was destroyed was insured as a dwelling and store-house, and was occupied at the time of the insurance, and as the uncontradicted evidence shows that said building was left vacant and unoccupied from the 1st of April, 1888, to the 13th of May, 1883, at which time the fire took place, and that no notice was given to the defendant company that the same was left unoccupied during said period, this was such a failure on the part of the plaintiffs to comply with the conditions of the application and policy as works a forfeiture thereof, and the verdict must be for the defendant.</p> <p>Which point the court answered as follows :</p> <p>“Answer: This we refuse; that notice was not required.” (Second assignment of error.)</p> <p>That if the jury believe that John Usaw either set fire to said building, or caused the same to be set on fire, then, he being a party in interest in said policy, there can be no recovery by the plaintiffs in this case.</p> <p>Answer: — If he either set it o.n fire himself, or had somebody else set it on fire and destroy it, then there could be no recovery here, because he is a party plaintiff, and presumably has an interest so far as the case stands here. When we say that if he burned it or had it burned, which is the same thing, there can be no recovery, we must also instruct you that the burden to prove that he burned it is on the defendant, who alleges it. Has the defendant company satisfied 3rou by proof that John Usaw burned this property? [Before the defendant can be relieved from payment oh account of the building being burned by him, it must have established the fact that John Usaw burned the house by testimony as'strong as the Commonwealth would be required to produce in case John Usaw was being tried in the Criminal Court on a charge of arson for burning the house.] The plaintiff, Usaw, in this easels not required to prove that he did not' burn the house ; the defendant must prove by direct or circumstantial evidence that satisfies 3rou that he did burn it, or this ground of defence fails. It is not necessary that they should prove it by some one who saw him burn the house, because a crime may be proved by circumstantial evidence; but these circumstances must be of such a character as to satisfy you that he was there and did it. (Third assignment of error.)</p> <p>That under the pleadings and evidence in this case, the verdict must be for the defendant.</p> <p>Answer-: — This we refuse. (Fourth assignment of error.)</p> <p>Verdict for the plaintiffs in the sum of $1,400, and judgment thereon.</p> <p>The defendant moved the court to grant anew trial.</p> <p>This motion the court overruled, filing the following opinion:</p> <p>On close examination of the evidence, the charge and the . points answered, we fail to discover material error to the in- . jury of defendant.</p> <p>If we were now charging the jury, we should eliminate from the answer to defendant’s fifth point the following clause : “And before the defendant company can be relieved from payment on this account it must have established the fact that John Usaw burned the house, by testimony as strong as the Cogimonwealth would be required to produce in case John Usaw was being tried in the criminal courts on a charge of arson for burning the house.” We find authority for so ruling in Bennet on Insurance and cases cited from New York .and Maine.</p> <p>But on the strength of the Con. Ins. Co. v. Delpeuch, 82 P. S. R., 225, we are now of opinion that the clause referred to was stronger than is held in Pennsylvania. In that case it was held that the party alleging suicide to avoid a policy must prove it; and in Wharton’s Ev., 1246, it is stated that the better view now is that in civil issues the result should follow the preponderance of evidence, even though crime is imputed. The answer to the point, as a whole, did not however require that the jury should be satisfied beyond a reasonable doubt that Usaw burned the house.</p> <p>We said to the jury if they found that John Usaw burned the house there can be no recovery. And after stating the degree or kind of proof required to make out the offence, we followed it by charging in the same answer that “the plaintiff, Usaw, in this case, is not required to prove that he did not burn the house. The defendant must prove by direct or circumstantial evidence that satisfies you that he did burn it, or this ground of-defence fails. Not a word was said about proof beyond a reasonable doubt, but possibly the jury did, asa lawyer would, understand it in this light. But be it so — What injury lias the defendant suffered by it? None whatever. The evidence in the case would not warrant a verdict in favor of the defendant on the ground that the plaintiff, Usaw, burned the house — such a finding would be against the evidence, and if rendered for the defendant, on the evidence before the jury, on the ground of plaintiffs having burned the house, it would be the manifest duty of the court to set the verdict aside. So we view the case, and hence upon due consideration the motion is overruled and new trial refused.</p> <p>The defendants then took this writ assigning for error, the refusal of the offer of testimony, the refusal of the defendant’s second and sixth points, and that portion of the answer to the defendant’s fifth point inclosed within brackets.</p>

151. This was an action on the case brought by Cornelia Tissue, widow, and Elizabeth Pearl Tissue, child of Charles Tissue, deceased, against the Baltimore and Ohio Railroad Company, lessee of the Pittsburgh and Connellsville Railroad, to recover damages for the death of the husband and father of the plaintiffs, alleged to have been caused by the negligence of the defendant in storing a large quantity of dynamite so near the place in which the deceased was employed as to…

<p>Error to the Court of Common Pleas, of Lycoming county: Of January Term 1886.</p> <p>The facts appear sufficiently in the opinion of the court. Cummin, P. J.</p> <p>The only question involved in this proceeding is the ascertainment of the last place of legal settlement of Susanna Gray, daughter of Joseph Gray.</p> <p>May 14th, 1875, an 'order of relief for Susanna Gray was issued, at the instance of her mother, directed to the overseers of the poor of Fairfield township. Whether any relief was furnished under this order does not appear, in the evidence..</p> <p>October 22d, 1882, another order of relief for Susanna Gray was issued, directed to the overseers of the poor of Fairfield township, which was served on them November 21st, 1882. They tpok charge of the pauper, and made some investigation as to her last place of legal settlement, and fearing they could not succeed in removing her, they made no effort to remove her.</p> <p>May 2d, 1885, an order of removal was obtained, and same day the pauper was removed to the poor district of Montoursville borough, who accepted and now have charge of her.</p> <p>May 4th, 1885, an appeal was taken by the overseers of the poor of Montoiirsville borough and was duly entered, and thus the question'of the last place of legal settlement of this pauper came before the court. Susanna Gray, the pauper, is the daughter of Joseph Gray and Letitia, his wife, and was born in 1845. Her mind became deranged about the time she came of age, to wit, in 1866 or 1867. Letitia Gray died about June, 1882. .Joseph Gray, her husband, died, about March 28th, 1869. - He' was a pauper at thé time of his déath 'and was buried at the expense of the overseers of the borough of Montoursville.</p> <p>Susanna), the pauper, 'lived with her parents until 1861, when her mother became possessed of a house and small lot of land in Fairfield township, after which.time she resided, with her mother until the time of her mother’s death, shortly after which the last order.of relief was taken out.</p> <p>In 1854, Joseph Gray rented a house and lot from Jacob Fry for one year at a rental of twelve or fourteen dollars.</p> <p>He moved with his family into the premises and resided there at least one whole year, and paid the rent in baskets, work and money, This hou.se and lot afterwards became and is now within the limits of the borough of Montoursville. This fixes the place of legal settlement of Susanna Gray in 1854 in the borough of Montoursville.</p> <p>It is claimed by the appellant, that, the pauper acquired a settlement in Fairfield township subsequently, by becoming seized of a freehold estate therein and' dwelling thereon for one whole year. To sustain this claim, they have put in evidence, a 'mutilated assignment, indorsed on deed to Letitia Gray, her mother, for the lot of land above mentioned. This assignment is dated December 10th, 1867, and purports to convey the premises therein described to Susanna Gray. It is executed and acknowledged by Letitia Gray, whose husband was. then- living,, but is 'without his signature or acknowledgment.</p> <p>’ Without stopping to.'inqu.ire whether this assignment was ever delivered to Susanna, or whether she ever resided on the. premises as owner pne whole year, [I am of opinion that no estate whatever passed ¡to Susanna by this transfer, because Joseph Gray, the husband .of Letitia, was then living and did not join in its execution. The assignment is not voidable, but absolutely void.] (Fifth assignment of error.)</p> <p>“ The deed of a feme covert, in which; her husband does not join, is absolutely void, and' cannot be validated by evidence, of his assent, .nor can she .be estopped by the receipt, of the .consideration, or any subsequent act pf satisfaction. Nothing, but a new deed, duly^ executed and acknowledged, could avail:” Buchanan v. Hazzard, 95 Pa. St., 240.</p> <p>1 It is no longer possible to perfect this title, as both. Letitia Gray and her husband, Joseph Gray, are dead, and the real, estate in question has been sold under.an order of the .Orphans Court as' the property of Letitia' Gray, for the payment of her debts. ' • '</p> <p>The plaintiff presented the following points:</p> <p>1. That the-occupancy o'f premises by a person who does not lease the same and pay rent therefor, gives him no settler ment. To gain a settlement, occupancy must be by virtue of a lease. ' •</p> <p>Answer. This point is affirmed.</p> <p>_ 2. That the occupancy of premises at the will of the lessee of the same, without any agreement • for payment of rent, either with the original landlord or his lessee, and without the payment of any rent, will not give a’ settlement to such occupant, no matter how long such occupancy continues,-</p> <p>Answer. This point is affirmed.</p> <p>3. That a mere occupancy of premises without any lease- or agreement for payment of rent, and without any actual payment of rent, cannot be tacked to an occupancy of other .premises held under a lease for the purpose of giving such .occupant a settlement. The only, occupancy which can-.be counted, is that which is by virtue of a lease reserving rent.'</p> <p>Answer. This point is affirmed.</p> <p>4. The rule that the settlement of the parent is that of the child only applies until the latter acquires another.</p> <p>Answer. This point is affirmed.</p> <p>5. If the paupefi in this case became seized -in her own right of an estate of freehold in the township of Fairfield in 4866, ,and dwelt upon the same,one whole-year, then she did'acquire a settlement in said township of Fairfield, and it does -not matter where her father was last legally settled.</p> <p>Answer this point is affirmed.</p> <p>6. The legal effect of the assignment of Letitia Gray to the pauper was to give the latter an estate of freehold. _ ■ , •-</p> <p>Answer. This point is negatived. - (Sixth assignment of error.) - ■ ,</p> <p>7. The execution and delivery of the- assignment.-having been shown, and a long continued occupancy by the pauper of the premises thereafter, and .there being nothing in the evir dence to show when said assignment was tampered with and attempted to be obliterated, nor anything to show that the pauper, who was -the grantee,or assignee; assented to any cancellation of said assignment, s.uch obliteration or . attempted cancellation did not divest the title of, the pauper.</p> <p>Answer, This point being immaterial is negatived.</p> <p>8. The burden of proof is on .’the township of Fairfield to show a settlement in Montoursville bqrough.. If .said township has failed to satisfy the' court ■ that the pauper has á settlement in- said borough; then the, prder pf removal must be .discharged. Also if the court should be of opinion that at one time the pauper had derived a legal settlement in said borough through her father, but that since then she acquired another settlement in Fairfield township, then the order of removal must be discharged.</p> <p>Answer. This point.is affirmed.</p> <p>9. The last place of the settlement of the pauper not being in Montoursville borough, the order of removal must be discharged.</p> <p>Answer. This point is negatived. (Second assignment of error.)</p> <p>10. If Susanna Gray lived with Letitia Gray in Fairfield township, and did service for her one year or more by virtue of any understanding or agreement that she was to be paid for her services, either in money or property, then Susanna Gray acquired a settlement in said township.</p> <p>Answer. That point is affirmed.</p> <p>No other place of legal settlement being shown for this pauper since 1854, it follows that she was properly removed to the borough of Montoursville.</p> <p>Order of removal confirmed with costs. (First assignment of error.)</p> <p>The overseers of the poor of Montoursville borough thereupon took this writ, assigning fbr error that portion of the general opinion included in brackets, the answer of the court to the plaintiff’s sixth and ninth points, and the order and decree of the court confirming the order of removal of the pauper.</p>

<p>Error to the Court of Common Pleas of Lehigh county: Of January Term, 1886.</p> <p>Ejectment by Jesse Follweiler and wife against Michael Lutz and wife and Amandes Shellhammer, a tenant in possession under Lutz and wife.</p> <p>The following facts appeared on the trial of the case before Albright, P. J.:</p> <p>The land in controversy is a tract of about four acres in Lynn township, Lehigh county, the'northern boundary of the tract being the county line between Lehigh and Schuylkill counties. The plaintiffs claimed title as follows: On October 27th, 1879, Jesse Follweiler obtained judgment in the Common Pleas of Lehigh county against David W. Follweiler. Upon this judgment execution was issued, the premises in question condemned, and upon a vend. ex. sold to Rebecca Follweiler, the present plaintiff, and deed acknowledged to her by Thomas B. Morgan, sheriff of Lehigh county, on November 17th, 1881.</p> <p>The title of the defendants below arose as follows:</p> <p>On October 12th, 1874, David W. Follweiler above mentioned, being the owner of 195 acres of land, partly in Lehigh and partly in Schuylkill county, made an assignment for the benefit of his creditors to one C. D. Frederitza.</p> <p>This assignment was recorded in Schuylkill county but never in Lehigh.</p> <p>C. D. Frederitza having died, the Court of Gommon Pleas of Schuylkill county, upon petition, appointed one Alvin F. Creitz of Lehigh county, in his stead, on December 30th, 1878.</p> <p>By deed of June 9th, 1879, A. F. Creitz conveyed the lands in Schuylkill county, as well as Lehigh county land in controversy, unto Mary Lutz, the defendant in this case.</p> <p>The plaintiffs in error contended that at the time of the assignment for creditors David W. Follweiler, the assignor, resided in Lehigh county, and as the assignment was never recorded in Lehigh county it was void as .to the assignors’ creditors, and Jesse Follweiler, one of these- creditors, could proceed upon his judgment in that county to sell the land in controversy. ></p> <p>The Act of Assembly of March 24th, 1818 (Purd., p. 92, pl. 7), reads as follows : “All assignments so as aforesaid to be made and executed which shall not be recorded in the office for the recording of deeds in the county in which such assignor resides, within thirty days after the execution thereof, shall be considered null and void as against,any of the creditors of the said assignor.”</p> <p>The defendants- in error insisted ¡that, at 'the time of the assignment the assignor was a resident of Schuylkill county.</p> <p>- This was the' only issue -presented to the court below, it being conceded that upon its determination the verdict must turn.- y;-;</p> <p>In 1869 or 1870 David WVFollweiler built the house — hotel in which he lived with his family frpm that time continuously to 1879. This'hotel wasTocat’ed, on the tract- of land in controversy, and either upon or close to the county line between Lehigh and 'Schuylkill. - - .'</p> <p>. ■ John F.- Stoudt, county surveyor of Schuylkill, testified on behalf of the plaintiffs in error that'the county line ran north .of the hotel, and that the other building was in Lehigh county. .The court charged the jury that if this was the fact their verdict must be-for the plaintiffs.</p> <p>. ; The defendants called the co’unty surveyor of Lehigh and his-assistant, who testified that they had.made a recent survey .of the county line, and that it cut a small part of the hotel in .Schuylkill county.' . ‘</p> <p>The hotel was a large frame building, some 52 feet front and 80 feet deep, the northern end or-side of which was toward Schuylkill county. The defendants’ witnesses testified that the building line cut into Schuylkill county, a narrow strip along the north end of the-building- — to-wit: a strip 4 feet 9 inches wide in front,, and widening out. tó 5 feet 10 inches in the rear.- This Strip of-, two, rooms, about- 5 feet wide, was the only part of the building in Schuylkill county. There .were no doors in" that county. ' The remainder of the house, 50 .feet front, all the halls and roqms except the narrow slice off the northern rooms, were in' Lehigh County.</p> <p>The ground plan -of the hotel will be found on page 109:</p> <p> </p> <p>During the trial the defendants made the following offer of evidence:</p> <p>Jesse Follweiler being upon the witness stand defendants’' counsel proposed to ask him tbe following-question :</p> <p>“ Where did he (the assignor) get his license when he kept this hotel?</p> <p>“ Objected to as incompetent and irrelevant, and because it is not the best evidence of the granting of a license by a court; because it is not proposed to follow the evidence by proof that David Follweiler did actually, as a matter of fact, reside in Schuylkill county, of that he had any business there, or that there was any evidence of actual residence or settlement in Schuykill county, except such as may be inferred from the fact that a narrow strip of this house-in which he lived was over the Schuylkill county line.</p> <p>“By the Court: The evidence so far shows that the line separating Lehigh and Schuylkill counties passed through the house which was kept by David W. Follweiler from 1870 to a period after the time of making the assignment. Therefore it would seem that his residence at the time of making the assignment was equivocal; and in the opinion of the court his intention in respect to his residence in the one or the other county is material. The objection is overruled and a bill sealed for the plaintiffs. (Sixth assignment of error.)</p> <p>'“ Defendants propose to prove that the witness was a clerk at an election about the year 1870, and subsequent to that time that he oftentimes saw David W. Follweiler vote in Schuylkill county, for the purpose of showing the intention of the party as to his residence.</p> <p>“ Objected to as incompetent and irrelevant, because the intention of a party does not fix his residence except as it may bear upon the effect to be given to the fact that he has actually-located in a district. The mere fact that a man votes in a district is not legally competent evidence that is his residence.</p> <p>“The Court: Inasmuch as, it has been shown that the county line passed through the house where the assignor lived, the question of what he regarded his residence may be material. The objection is overruled and a bill sealed for the plaintiffs. (Seventh assignment of error.)</p> <p>The plaintiffs presented the following points:</p> <p>First. — Under all the evidence the verdict should be in favor of the plaintiffs.</p> <p>Answer. — Negatived. (Third assignment of error.)</p> <p>Second. — If the jury believe the evidence of Alvin Creitz as to the location of the house with reference to the county line, then your verdict should be in favor of the plaintiffs.</p> <p>Answer. — Negatived. (Fourth assignment of error.)</p> <p>In the general charge the court instructed the. jury, inter alia, as follows:</p> <p>. The contest here, as you have observed, is whether David Follweiler, at the time he made the assignment, was a resident of Schuylkill county or a resident of Lehigh county. If he was a resident of Schuylkill county, then inasmuch as the deed was not recorded in Lehigh county, a judgment entered in Lehigh county at the time the Jesse-FolLyveiler judgment •was entered would have become a lien on the land in Lehigh county, and any one taking under that judgment would take a good title.</p> <p>[It is admitted that Rebecca Follweiler, who bought at the sheriff's sale, knew that the assignment, had been made, and that these four acres were included in the assignment. It is admitted also that at the time of the sheriff’s sale notice was given by Mrs. Lutz that she had bought the property. It is also admitted that Mrs. Follweiler bought the title she now has with notice that Mrs. Lutz .had it by virtue of her deed from the assignees. The law says where a party thus has notice she cannot complain that the deed is not recorded, because the object of putting a deed on record is to give notice to the public that somebody else has a title, and where a party had actual notice of the other deed though not recorded, the law places him or her in the same position as if the deed'had been recorded. In order to simplify this case, the plaintiffs very sensibly admitted that they had notice. They are therefore in the same position as if the deed had been recorded in Lehigh county. The only question 'that then remains, as it seems to me now, and the main controversy in this case, is as to whether at the time'the assignment'was made, October 1 Oth, 1874, David W. Follweiler, the assignor, was a resident of Schuylkill county or not. If he, was a resident of Lehigh county then the deed of assignment was not recorded in the county in which the assignor resided, and it was void as to the creditors, and the plaintiffs are entitled to recover so far as this branch of the inquiry is concerned.]. (Fifth assignment of error.) , '</p> <p>Several surveyors have testified as to where the line separating Schuylkill and Lehigh is, in reference to the dwelling house on the tract of land which David Follweiler .owned. You no doubt understood that on the. Schuylkill side, the township is “ West Penn,” and on the Lehigh side the town/ ship is called “ Lynn.” The tract of land containing 195 acres,, it seems, is situated on top of the Blue Mountains. On the top, or somewhere, near the top, the county line runs between these two counties. One of the surveyors, Mr, Stoudt, testified that he run this line, and he described to you how and where he run it, and what land marks he found. He testified that he found the county line to be north of the house in which David Follweiler lived. You will remember that the witnesses agree in saying that there was a house on this property, which at one time was used as,a hotel; that it was built about the year 1869 or 1870, and that David Follweiler lived in it from 1870 to 1879, living in it in 1874. Mr. Stoudt says the county line ran north of this house, placing the whole of the dwelling house in Lehigh county, and ran through the' barn, which is situated further to .the north than the house.’ Are you satisfied from his testimony that the line as he ascertained it is the correct line? If it is, then'David Follweiler at the time he made the assignment resided-in Lehigh county,' and then,the assignment, not being recorded in Lehigh, would be void as to the plaintiffs, if Jesse Follweiler was a creditor in 1874. Then, without further inquiiy, you will find in favor of the plaintiffs.</p> <p>[’Squire Creitz, another surveyor, says he run the line with ’Squire Weiss, who was also a surveyor, -and both of them have told you what land marks they found, and how they run this line. If I am not wrong, ’Squire Weiss agrees with ’Squire Creitz in this, that they found the county line ran through this house in which David Follweiler lived at the time he made this assignment, cutting the larger part of the house into Lehigh county. What weight' do you attach to their testimony? Do you believe that that is the line rather than that which Stoudt says is the line? 1 If you find the line, as stated by Creitz and Weiss to be the correct line, you have the fact that the house in which David Follweiler lived at the time of the assignment was on the line, and then another question will arise.</p> <p>We have not been informed as to how David Follweiler occupied this house. It was said that he-kept a hotel, and that the north end of the house, the end towards Schuylkill county, was divided into two rooms, one in front, and one in the rear, and that the front room was used as a bar room while-the hotel was kept, and that the door into that room was on-the Lehigh county side. How the other rooms were used we do not know, nor where David Follweiler ate or slept. We have the bare question of an assignor, if you take that to be the true line, living on the county line and recording the deed in one of the counties, and the county in-which the smallest portion of the house was located.. This presents a question of some difficulty in the opinion of the dourt. The first impression would be to say that where a house is located on the county line, and the man occupying makes an assignment for the benefit of his creditors, the deed must be recorded in both counties in order to be valid. That view, in my opinion, would be untenable, because that would be legislating; that would be adding by the court to the provisions of the legislature in reference to this subject.</p> <p>Another view which is most strenuously urged by the plaintiffs is, that because the portion of this house in the' county of Schuylkill is so small, it must be said as a matter of law that the recording in Schuylkill county was ineffective, and that taking the line as Creitz gives it, we must assume that David Follweil.er was a resident of Lehigh county. . I-cannot assent to that,-gentlemen. In my opinion! where the dwelling house of a party owning real estate and making an assignment, is located on the county line, his residence is ambiguous, uncertain and doubtful; and either for the purpose of the Act of Assembly referring to assignments, and for some other legal purposes, in my opinion he may determine and elect in which of the districts his residence shall be. It is not simply a matter of intention, undivulged, but acts done by the assignor, which demonstrate unmistakably in which of the two counties he regarded himself as a resident. We cannot say to you that you are to regard David Follweiler, at the time he made this assignment, as having been a resident of one county or the other. If you find his house, was on the line, you may regard that he had the right to elect in which county he would be treated and regarded as a resident.] (First assignment of error.)</p> <p>When I say he might elect, I do not mean simply that he might choose and do nothing in consequence of it, but if it is proved unmistakably that lie regarded and held himself out as a resident of ^he county of Schuylkill, and acted upon it, you will find that he was .a resident of the county of Schuyl-. kill, in which event the defendants would-be entitled to your verdict.</p> <p>[It has been said in your hearing that it is proved David Folhveiler obtained a license from the court of Schuylkill county, and that a hotel was kept by him. Whether that is distinctly proved I do not recollect. The testimony on that point is for you. Witnesses testified that he voted repeatedly, in West Penn- township, Schuylkill county, before 1874, and while he lived in this new house. If you find that the line is not .the line as testified to by Stoudt, but the line is that which Creitz testified to and passed through the house, and if David Folhveiler, by his acts demonstrated that he regarded and treated himself as a resident of West Penn township, Schuylkill county, at the time of the assignment, you may find that the assignment was recorded as required by law and find in favor of the defendants. If you find the line as testified to by Mr. Stoudt to be the true line, then Mr. Folhveiler undoubtedly lived in Lynn township, in which event the plaim tiffs are entitled to a verdict, provided it is found that Jesse Follweiler was a creditor in 1874 when this assignment was made. If you find in favor of the plaintiffs, you will describe the tract of land, which description can be taken when you' bring in your verdict. If you find in favor of the defendants you: will simply-say, “ We find in favor of defendants.”] (Second assignment of error.)</p> <p>• Verdict for the defendants and judgment thereon ; whereupon the plaintiffs took this writ assigning for error the admission of the defendants’ evidence above shown, the answer of the court to the plaintiffs’ points and those portions of the general charge included in brackets.</p>

191. This was an action of debt brought by Moses Thompson against the Central Pennsylvania Telephone and Supply Company to recover the price of a lot of telephone poles furnished by him on a contract made with him by Dunkle, whom he alleged was the agent of the defendant.

<p>1. ’ Where a-corporation under the right of eminent domain enters upon -the' lands of an- individual, without malting compensation or, tenderingahondas required by-statute,’the .entry is unlawful and tbe owner of. , ■ the land.may recover.damages therefor; .in an action of trespass.</p> <p>2. The subsequent giving of a bond ill the mode- 'authorized by statute • wBi not-deprive the injured party of 'his appropriate remedy for tres-' ■ pass. He is entitled tó recover for whatever damages he has suffered , down to the time of bringing suit, or until bond is filed and approved ' by the court.' ' '</p> <p>3. Where a jury of view is appointed tó assess the damaged, under the, , -Act of Assembly, and the injured party, the plaintiff jn the. action of. trespass, submits to the viewers the .question or the value-of timber cut: and sisks' that tlié damages' sustained thereby,’ aild for all1 other injuries done him be allowed, he thereby waives his right to pursue his action-' ' of trespass, whether-the'jury állows him'damages or not. .</p> <p>4. The Timber Act of 29th’of March, .1824, imposing double, and treble; . damages-, does not apply to á corporation; entering upon tire land of an-' ■other and cutting and taking timber trees,' under the right 'of eminent domain.</p>

<p>The Court of Quarter Sessions, under the Act of the 18th of May, 1876, P.’ L., 178, divided a township into two election districts, by a straight line running east and west; subsequently, upon petition, a commission was appointed to review and report as to the propriety of changing said election districts and of dividing the township into two or more districts. A majority of this commission reported in favor of dividing the township into two election districts, by a straight line running north and south. This report was confirmed and said division decreed. Held (a) that the Quarter Sessions has the exclusive power to determine' as to the propriety of the division of a township into election districts; (b) that this was not a proceeding to annex one election district to another, nor did this decree produce that result. An election as provided for in the fifth section of said Act was therefore not necessary, (c) The court is not deprived of the power of dividing a township into election districts, because at some time previously it had made a different division.</p>

<p>Error to the Court of Common Pleas of Centre county : Of January Term, 1886, No. 158.</p> <p>This was an action .of covenant by John Erb against the Lebanon Mutual Insurance Company on a.policy of fire insurance issued by defendant to the plaintiff. The defendant pleaded covenants performed absque hoc.</p> <p>The facts as they appeared on the trial of the ease before Krebs, P. J., of the 46th Judicial District holding special court, sufficiently appear in the charge of the court and in the opinion of the Supreme Court.</p> <p>The defendant presented the following points for charge :</p> <p>1. Under the terms of the policy it was not binding until the actual cash payment of the premium into the office of the company, and as the undisputed evidence is that the premium was not so paid, and was not paid to any appointed agent of the company defendant the policy never took effect, the plaintiff cannot recover and the verdict must be for the defendant.</p> <p>Answer: We refuse this point for the reason that no contract is stated in this point as is contained in this policy of insurance. (Sixth assignment of error.)</p> <p>2. It is the undisputed evidence that R. E. Munson & Co. and C. B. Pease were acting solely in the capacity of brokers in effecting this insurance, and that neither of them was an appointed agent of or for the company defendairt. They were, as such brokers, the agent of the insured, and not the agent of the defendant. Payment of premium to them was not a payment to the company, the company never having received the premium, the policy in suit is void and the verdict must be for the defendant.</p> <p>Answer: We have already instructed you on this point in our general charge, but we say again to you, gentlemen of the jury, and that the decision of the Supreme Court in Maryland v. Royal Insurance Company is the basis of our reasons for so-instructing you, that if this defendant company delivered this policy, in evidence, to C. B. Pease to be delivered by him, upon the payment of the premium, to the assured, and that he did pay that premium in good faith then the defendant company is liable for this -policy of insurance. (Seventh assignment of error.)</p> <p>3. The said policy of insurance on which this suit is brought was issued by the company and accepted by the plaintiff, inter alia, on the following condition, which is made part of this policy : Condition 4th: If this property to be insured be held in trust or in common or be leasehold or other interest not amounting to absolute or sole ownership, etc., it must be so represented to the company, and expressed in the policy in writing, otherwise the insurance as to such property shall be void. It being the evidence in this case that at the time of the issuance of this policy and the time of the fire the plaintiff was not the absolute or sole owner of the property insured, and the verdict must be for the defendant.</p> <p>Answer: If you find the facts upon this question of the ownership of this property, as testified by John Erb, Mr. Love and Mrs. Erb, then we instruct you that he may recover upon this policy of insurance, and we refuse to affirm this point. (Eighth assignment of error.)</p> <p>4. The conditions of the policy in suit required that in case of loss the insured within ten days after the fire render a particular account and proof thereof, etc. (see 8th condition): and if being the evidence that at least twenty-six days intervened between the time of the fire and 'the making of the proof of loss your verdict must be for the defendant.'</p> <p>Answer: We refuse to instruct you as requested on this point. (Ninth assignment of error.)</p> <p>5. It being the evidence appearing on the face of the policy that the property was insured as a manufacturing establishment, and being operated as such, and that-at the time of the fire it was vacated without the consent of the company indorsed on the policy, the policjq if ever' in force, had ceased and determined, and the verdict should be for the defendant:</p> <p>Answer: We have instructed you on this question of occupancy of this property and for the purposes of this case: If you find the testimony of Thomas Weston to be true as it was stated by him on the witness stand wé refuse .this point. (Tenth assignment of error.)</p> <p>In the general charge the court instructed "the jury, inter alia, as follows: . . . . The next point of contention is, as to the occupancy of this property. The policy of'insurance says: “On a tannery building and additions, machinery,'shafting,' belting, tools and apparatus therein, boiler and engine.” The policy on its face does not say that the tannery was' then being operated. The defendant company contends that it was vacated as a tannery building — that it was not occupied and operated as such, that therefore this policy is void under this clause in the 7th condition of the policy, the language of which condition is this: “This policy will not cover unoccupied buildings, unless insured as such, and if the premises insured shall be vacated without the consent of this company indorsed hereon, or if the property insured be a manufacturing, establishment or mill running in whole or in part over or extra time, or running at night, or if the same'shall cease to be operated without the consent of the company indorsed hereon, this policy shall cease and determine.”</p> <p>In support of this condition, the plaintiff has upon his part, under this clause of the 17th condition of this policy, called Thomas Weston, who testified how he had occupied a part of this property as a shoemaker shop. That lie also, while occupying it as such, worked a skin into leather, finished it as he needed the leather in -his shop — or a neighbor worked a hide tanned out of some old damaged hides that were left there in the vats at the time the tannery ceased running, which was some considerable time before this property was sold at sheriff’s sale. He testified that he so occupied and used it, from the time that Mr. Erb bought it up until the time this loss occurred.</p> <p>[For the purposes of this trial, gentlemen of the jury, we instruct you that if you believe this testimony of Thomas Weston, then there was no such a vacation, or non-compliance under this clause of the 17th condition of this policy as would make it null and void. If that testimony is true — if you believe it to be true — then there could be a recovery in this case by the plaintiff against the defendants for the amount of insurance here claimed.] (First assignment of error.)</p> <p>The defendant company also contend that this policy was void because no premium was paid under part of the 5th condition of this policy, which provides “or shall have neglected to pay the premium, then and in every such case this policy shall be null and void.” These are the words of this contract between the parties on this point, and the defendant contends that this policy is void beeause the money was not paid into and received at the home office of the company. This point, gentlemen of the jury, we confess, is not free from difficulty in our minds. There are numerous authorities on this point, bat of all the several authorities on the subject there is not one which covers exactly the point in controversy in this case. But it nevertheless becomes our duty to instruct you what we deem the law under this provision or condition of this policy. If you believe the facts as they are proven in this case, the plaintiff,i as far as he himself is concerned, has paid the premium.. You will notice that the condition is, “or shall have neglected to pay the premium.” This is the whole condition on that point. To this point the plaintiff calls Mr. Reed, one of the insurance firm of R. E. Munson & Co., of Philipsburg, and by him they present testimony to show that John Erb the insured came to him and solicited insurance upon this building, and 'that he (Reed) applied to Clifford B. Pease, of Boston, Mass., to have insurance placed upon this building. It appears from the testimony in this case that neither this insurance agent or broker,’or the firm of R. E. Munson & Co., were tbe agents of the defendant — Tbe Lebanon Mutual Insurance Company. Mr. Reed also testified that subsequently he received from Mr. Pease this policy of insurance, and that after its receipt, on the very day he gave the policy to Mr. Erb, he received from Mr. Erb the amount of premium specified therein, and remitted the same to Mr. Pease in Boston, less their commission ; and in support of that testimony they produce 'here a receipt from Mr. Pease for the money. The receipt being signed by C. B. Pease, and in signing so the plaintiff alleges he is the agent of the Lebanon Mutual Insurance Company.....</p> <p>[If you believe the testimony that the Lebanon Mutual Insurance Company delivered this policy to C. B. Pease, to be delivered to John Erb through any agent whatever upon the payment of the premium on this policy, and that John Erb when he got this policy paid the premium to Peaseur to others who sent it to Pease, then we instruct you there could be a recovery on this policy of insurance for the amount claimed. But Pease could not have entered into a contract or agency with these parties in this case, and delivered to them this policy without the payment of the premium; if he had done ho, it would have been a violation of the rights of the defendants in this case, and there could be no recovery under such a state of facts. We instruct you as a matter of law that this defendant company having placed this policy with this receipt in it in the hands of C. B. Pease, if he received into his hands the premium for the policy upon delivering it to the insured, that the company would be bound by that contract. When they delivered this policy with this receipt in it to Mr. Pease they made him their agent for its delivery, and your verdict, if you find these facts to be true, should be for the plaintiff.] (Second assignment of error.)</p> <p>The defendant, however, contends also that the company is 'not liable because there is no such proof of loss, or notice of loss, made out in this case as is required under the eighth condition of this policy as would make them liable. The eighth condition of this policy reads in this wise : “ Persons having a claim under this policy shall give immediate notice thereof to the company, and within ten days thereafter render a particular account and proof thereof, signed and sworn to by them, setting forth, first, a copy of the written portion of this policy and ail indorsements thereon ; second, other insurance, if any, on. the same property, or any .portion thereof, with copies of written portion of each policy and indorsements thereon; third, the actual cash value of the subject insured at the time immediately preceding the fire; fourth, the ownership of the property insured and the interest of assured in same'; fifth, for what purposes and by whom the building insured, or containing the property insured, and the several parts thereof, were used at the time of the loss; sixth, the date of the loss and the amount thereof; seventh, how the fire originated, as far as said persons know or believe ; and it further and finally provides, and until such proofs as above required are produced and examinations and appeals permitted, the loss shall not be payable.”</p> <p>As we understand the position of the defendants in this case it is, first, that there was not given to them the “immediate notice of loss” as this condition requires ; secondly, that there was no such formal proof of loss as that required in the first, second, third, fourth and fifth conditions of this policy. Upon these several points the plaintiff produces testimony to show what the facts really were in the case. [The first witness called was Mr. Reed, -who testified to you that on the 14th day of August, 1882, he wrote'this letter to the Lebanon Mutual Insurance Company: “Gentlemen — The property insured under policy 20934, special No. 1952, was burned August 10th, 1882. The risk was placed by us through C. B. Pease, of Boston, Mass. Please advise what steps we shall take in the matter, and oblige, yours truly, R. Munson & Co.” Mr. Reed also testified that he thought he had telegraphed to the company' of the loss, but he was not sure. The testimony upoox the subject therefore is, that the first notice the insurance company received of this loss was this letter written on the 14th August, 1882, mailed on that day to the Lebanon Mutual Insurance Company, at Jonestown, Pa. There is no denial that the company received this notice, and this letter is produced by them, as we understand, through a notice served on them by plaintiff’s counsel in the case. This question, then, that we are requested to instruct you upon, we say to you, that if you believe this letter was received by the company, that under ithe first part of this eighth condition of this policy there was such notice given such preliminary notice as is required by that condition of this policy, if you find there was a loss at that time.] (Third assignment of error.) '</p> <p>[The second inquiry under this eighth condition is, whether or not the company received such formal proof of loss, and whether they have done anything on their part which would waive their right to require such formal proof of loss as is specified in this eighth condition of this policy. In answer to this letter of August 14th, 1882, D. M. Karmany, special agent of the Lebanon Mutual Insurance Company, writes in these words:</p> <p>R. E. Munson, Esq. — Dear Sir: Yours of 14th inst. was-sent to me, and upon examination I find that the premium on No. 20,984, special No. 1952, has not been paid at bur office, and therefore no liability could exist; the policy was dated June 5th, 1882; being overdue seventy days ago we could not; under any circumstances, ever take the case under consideration. Respectfully, yours, D. M. Kabmanv.</p> <p>We instruct you, gentlemen of the jury, that under the authorities of the Supreme Court as decided, that if that letter was written to R. E. Munson, or to John Erb, or shown to him, then the defendant company have by their act waived the right to receive' the formal proof of loss ; if you find that such notice had not been given, and that they did not object to this loss because there was no formal proof of loss put in, but that they put it upon the ground that the premium had not been paid, and for that reason refused even to consider it, then we say to you they have waived their right to demand a formal proof of loss, such as is called for in the several clauses of the eighth condition of this policy in evidence. It is shown, however, on the part of the plaintiff, John Erb, that some time in the beginning of September, 1882, the plaintiff made out a formal proof of loss and sent it on to the company, and the company up to this day, so far as the evidence in the ease goes to show, did not object to the deficiency or informality of this proof of loss.] (Fourth assignment .of error.)</p> <p>[Now, gentlemen of the jury, we think this is about all the instructions we need to give you upon this contract; you must take this testimony and examine it carefully, first, as to whether this property was the property of John Erb, under the instructions we have given you upon that point; second, whether or not it was occupied; third, whether or not the premium was paid to C. P. Pease, and whether or not this policy of the Lebanon Mutual Insurance Company was delivered by the company to C. B. Pease, to be delivered by him to John Erb or his agents, upon the payment of the premium; fourth, whether or not the defendant company waived the right of receiving a formal proof of loss by this letter which is offered in evidence here, and which had been written by their special agent. If you find these facts to exist, from the evidence in the case under the instructions we have given you, we instruct you to find a verdict for the plaintiff for the amount of this policy, with interest thereon from the 7th day of September, 1882. If, however, you come to the conclusion that any one of these conditions have not been complied with, or are wanting in the evidence, then your verdict must be for the defendant company.] (Fifth assignment of error.)</p> <p>We reserve in this case, gentlemen of the jury, two questions for. our future consideration :</p> <p>First. Whether or not there was a payment of the premium; whether there was such a payment of the premium as would comply with the condition of this policy so as to make the company responsible, and</p> <p>Second. Was there such a vacation of the property as to render the policy void.</p> <p>• These are two questions which we will determine after you have found your verdict, and file a written opinion on the same. We have submitted all questions of facts involved in this case to you, and direct you to make a careful examination of all the evidence in the case, and that you should come to no hasty conclusion, render no verdict until you are clearly satisfied, and render a verdict according to your careful deliberation.</p> <p>Verdict for the plaintiff in the sum of $1,090, subject to the opinion of the court on the questions of law reserved. The court subsequently directed judgment to be entered on the .verdict in favor of the.plaintiff on both the' questions of law reserved.</p> <p>Judgment was thereupon entered; whereupon the defendant took this writ, assigning for error the answer of the court to the defendant’s points, those portions of the general charge included in brackets, and the order of "the court to enter judgment on the verdict for the plaintiff on the points of law reserved.</p>

<p>Error to the Court of Common Pleas of Lehigh county: Of January Term 1886, No. 266.</p> <p>Assumpsit by Barbara Snyder against Nathan Lerch and wife, Reuben Lerch, trustee of Catharine Lerch, and Leonard Frommer. The defendant pleaded non-assumpsit, payment With leave, former recovery and statute of limitations.</p> <p>The following facts appeared on the trial of the case before Albright, P. J.:</p> <p>Henry Snyder died some time during the year 1885, leaving to survive him a widow, Barbara Snyder and five children, Richard Snyder, Hetty Walter, Sarah E. Heckman, Abysinia Stofflet and Nathan Snyder, seized of a farm situate partly in Hanover township, Northampton county, and partly in Hanover township, Lehigh county, Pa., containing 59 acres and 123f perches. On April 2d, 1866, said widow and children by deed duly recorded, conveyed said farm to Nathan Snyder in fee for the consideration of $9,000. Six thousand dollars of said consideration was paid in cash to the grantors, and the balance of the consideration being $3,000 remained by said deed a charge on the farm, in the nature of a dower in favor •of Barbara Snyder, widow of Henry Snyder, deceased, on which the interest was.payable to the widow during life, and after her death the principal sum of $3,000 was payable to the legal heirs and representatives of- Henry Snyder, deceased. ■</p> <p>■ The charge on the farm in the deed in favor of the. widow is expressed in the following language: “-Excepting.nevertheless that he holds the same subject to the payment of the said dower of three thousand dollars to the heirs .and legal representatives of the said Henry Snyder immediately after the death of the said widow, Barbara Snyder, and the interest thereof annually on the first of April during her natural life, being one hundred and eighty dollar’s annually,” “excepting their interest attaching to the widow’s dower.”</p> <p>At the time the deed was given, a bond and mortgage was executed by Nathan Snyder in favor of Barbara Snyder for the securing of the widow’s dower of $3,000, mentioned in said deed, and represented the same charge of $3,000 contained in the aforementioned deed. To the deed there was affixed a six dollar United States revenue stamp, and to the.mortgage a three dollar United States revenue stamp.</p> <p>The deed above named was recorded only in Northampton county. The part of said farm located in Northampton county contains 49 acres and 123f perches, and was sold by the sheriff of said county as the property of Nathan Snyder, in 1875, to Leonard Frommer. The part located in Lehigh county contains, about, ten acres, and was sold by the sheriff of Lehigh county, on October 4th, 1875, as the property of Nathan Snyder to Nathan Lerch, and the said Nathan Lerch, by deed dated April 1st, 1879, granted the same to Reuben Lerch in trust for Catharine Lerch.</p> <p>The total interest accruing annually on said dower was $180. Leonard Frommer annually paid $150 interest to Barbara Snyder on said dower. At no time did Nathan Lerch or his vendee pay interest on the dower to Barbara Snyder. Annually there was a deficiency of $30 in the payment of the dower interest accruing in favor of said widow. To recover the arrearages of dower interest suit was brought against the defendants. Upon a former trial a nonsuit was entered against Barbara Snyder, for the reason that the deed which contained the dower charge was insufficiently stamped, and thus.could not be used in evidence; a writ' of error was taken, and the rulings of the court below were sustained: Snyder v. Lerch, 42 Leg. Iut., 345. On June- 23d, a. d. 1885, the deed was taken before the United States Revenue Collector at Philadelphia to have affixed thereto the proper and legal stamp. The Collector, through his deputy, received three dollars for the costs of the stamp, lacking on the deed,, penalty six dollars, and indorsed on.,the .back of the deed the following :</p> <p>“Received, Philadelphia, June 23d, 1885, of M. C. Cline, attorney for the heirs of Nathan Snyder and Barbara Snyder,the sum of three dollars to cover the value of stamp omitted from the deed, and the further sum of six dollars as penalty incurred under section 3422 R. S. ■</p> <p>John F. Cline,</p> <p>($9;00.} Deputy Collector, 1st Dist. Penna.</p> <p>A new suit was instituted against the plaintiffs in error to recover the arrearages of dower interest due. On the trial of which the plaintiffs offered in evidence deed dated April 2d, 1866, from Barbara Snyder, Richard Snyder, Eliza Snyder, Andrew Walter and E. Walter, William Heckman, Sarah E. Heckman, Jacob Stofflet and Abj^sinia Stofflet to Nathan Snyder.</p> <p>Objected to by defendant, 1st. Because the deed is not properly stamped, as the consideration stated in the deed is $9,000 • — $6,000 to be paid presently, and $3,000 to'be paid after the death of the widow, whilst the deed itself contains revenue stamps for $6, and is therefore improperly stamped under the Act of Congress. 2d. Because the stamps therein are not cancelled in manner and form provided by the Act of Congress. 3d. Because of certain interlineations and erasures in the acknowledgment thereto, viz: the erá&ure of the word “Northampton,” and the interlineation “Lehigh,” and the interlineation “1866” are not explained. 4th. Because there is indorsed upon the back of the deed under date of June 23d, 1885, a receipt signed John F. Kline, deputy collector, 1st District of Pennsylvania, which is not explained, and no .authority shown in the said John F. Kline to give what purports to be a receipt, and because the receipt as given does not remove the incomplete stamping of the instrument, and it is invalid, and does not .entitle it to be received in evidence. 5th. As incompetent and irrelevant.</p> <p>Defendants further object that the signature.to the receipt purporting to be that of John F. Kline, and the seal purporting to be the seal of the United States Revenue Collector for the First District of Pennsylvania, are not of such import in law as to entitle the instrument to be read in evidence without proof that the person purporting to be a deputy collector is a deputy collector of Internal Revenue, and as such is entitled to give a receipt as thereon indorsed. Objection overruled; exception taken and bill sealed for defendants. (First assignment of error.)</p> <p>The defendant presented, inter alia, the following point:</p> <p>It having been shown that Frommer paid to the plaintiff $150 annually to April 1st, 1885, as interest in full on tl^e charge contained in the deed so far as the tract owned by him iir Northampton county is concerned, and that a receipt in full was given for the same; the plaintiff cannot split up her claims of interest and recover for the two tracts separately at an arbitrary sum per acre. For this reason there can be no recovery in the case. Ans. Negatived. (Second assignment of error.)</p> <p>« The court in the general charge instructed the jury inter alia: “ The court can discover no questions for the jury except to ascertain the amount due......The plaintiff is also entitled to interest on each installment of $30 as it fell due until this date.” (Third assignment of error.)</p> <p>Verdict for the plaintiff. The court, of its own motion, entered a rule for a new trial. This was discharged and the following order made:</p> <p>The rule for a new trial is discharged, and upon payment of the jury fee it is ordered that judgment de terris be entered upon the verdict against the real estate referred to in the plaintiffs’ declaration held .by Reuben H. Lerch, trustee for Catharine Lerch, the wife of Nathan Lerch, that is : All that certain tract or piece of land situate in Hanover township, Lehigh county, bounded on the east by a public road leading from Bethlehem to Shoenersville, on the north by land of Joseph Dewald, on the south by land of Reuben Patterson, now Andrew Weil, and on the west by land of Joseph Dewald, containing ten acres, more or less.</p> <p>The verdict and judgment as to said Reuben H. Lerch, Nathan and Catharine Lerch, not to affect them personally; as to said Leonard Frommer the verdict is stricken from the judgment or lien docket.</p> <p>Judgment was accordingly entered ; whereupon the defendants, except Leonard Frommer, took this writ, assigning for error the admission of the plaintiffs’ evidence as above indicated, the answer of the court to their point, and so much of the general charge as is above set out.</p>

321. This was an appeal by Annette P. Hess and Robert J. Hess, administrators of Jantes Hess* deceased, who was executor of the last will and testament of Mary Hess, deceased, from the decree of the Orphans’ Court of Lehigh county, surcharging the estate of the said James Hess, deceased, with the proceéds of certain, real estate sold by him to W. H. Desbler in 1878.

<p>1. If the plaintiff in ejectment claims by descent, it is sufficient for him, in the first instance, to prove his heirship, and that the ancestor from whom he derives title was the person last seised of the premises in controversy. If he claims as devisee he must, in like manner, prove the will and seisin of his devisor.</p> <p>2. Tim seisin of the ancestor or devisor may be proved by showing he was in actual possession of the premises at the time of his death, or in receipt of rent from the terre tenant'; because possession is presumptive evidence of seisin in fee until the contrary is shown.</p> <p>3. When the title to real estate is, in the wife, in her own right, the presumption js that the joint possession of herself and husband is in subordination to her recorded title. If the husband be the devisee for life of said real estate under her will, the presumption is that his con: tinuance in possession after her decease is as tenant for life under the will. Upon his death,, therefore, the devisees in remainder are entitled to the possession as against his widow or any other stranger to'the title.</p>

<p>1. Condemnation of private property for a private road can be justified-only on the plea of strict necessity. The owner of the .land, over which it is proposed to lay the road, must have personal notice of the time and place of the meeting of the viewers, and also of the time and place fixed for the assessment of damages. .'</p> <p>2. Boyer’s Road, 1 Wright, 257; Neeld’s Road, 1 Barr, 353, followed.</p>

<p>Error to the Court of Common Pleas of Lycoming county: Of July Term, 1885, No. 108.</p> <p>This was an action in trespass on the case to recover damages which the plaintiff sustained through the alleged negligence of the Supervisors of Washington township, in neglecting to keep the highways of said township in a safe and passable condition. Plea, not guilty.</p> <p>' The facts of the case as they appeared on the trial before Cummin, P. J., are fully shown in the following charge:</p> <p>The issue which you have been sworn to try arises in an action on the case brought by Henry C. McCormick against the township of Washington. Henry C. McCormick, the plaintiff in this case, brings suit to recover damages which lie alleges he has sustained by reason of the negligence of the officers of the township of Washington, defendant, in not keeping their public highways in proper repair. He claims that on the 20th of September, 1888, at' about one o’clock in the afternoon, as he was travelling upon the highway of Washington township and attempted to cross South creek upon a bridge which is there erected as a. part of this highway, the bridge broke down. That at the time he was traveling with his steam threshing machine,' which consisted of three different vehicles. The first was the engine and boiler on four wheels, the second containing the water .tank, and the third containing the separator — all hitched together. That these vehicles were being transported by means of a traction engine. That a team .of horses (or rather a horse and mule), were hitched in front for the purpose mainly of guiding the machine. The machine was propelled by the traction engine contained in the first vehicle. That when they got upon this bridge-one of the stringers broke’; the team was precipitated into the stream and the engine and tank followed, and the separator remained hanging on the one side : the horse was injured and the machine was injured; That it cost him a considerable sum of money to have this machine repaired, the items of which he testified to. The injury to the horse was stated to you as equal to the sum of $20, making a total of the items of damage of $349.06. He has brought this action to recover the damages which he sustained at that time. Now, that an.accident occurred at that place at that bridge on the 20th of September, 1883, is not in dispute. That fact you will have, no trouble about. The amount of damage which he sustained is not seriously in dispute. I am not sure that there was any contrariety of opinion as to any of the items. So those questions will not be of difficult solution for you. The real point in this case is, however, whether or not the township is liable for this accident. It does not follow because a man is hurt on a public highway that, therefore, the township must pay the damages. That conclusion does not follow such premises. It requires something more than that. As I have said to you the real question is whether or not this township is liable to this plaintiff under the circumstances of this case, and this is a question partly of law and partly of fact. It is the duty of the court to lay down to you the law governing the case, and it will be your duty to apply that law to the facts as you may find them, and in this way you will arrive at a laAVful and just conclusion of the case. It is proper for me to say in the outse't that you are to be controlled by the evidence in this Case as to your finding of facts, and the law which you are to apply in this case is the law which is given you by the court. If you should apply anything else great injustice might be done. If the court makes a mistake either one of the parties will have the right to have such errors corrected, and hence it is important that you should apply the law as the court gives it to you. You are to be controlled then by the law and the evidence in this case, and nothing else. You are not here to distribute money to anybody who may make a claim against the township of Washington. On the other hand, you are not here to excuse the misconduct or the negligence of township officers. You are to be controlled by the law and evidence in this case, and by nothing outside. Now, then, the question of the liability of this defendant to pay damages is really the important question, and the first thing to look at will be what were the duties of the Supervisors of Washington township in respect to this bridge where this accident occurred. By the sixth section of the Act of Assembly on the 13th of June, 1836, their duties are thus set forth:</p> <p>Purd. Dig., p. 1278, pl. 43. Public roads or highways laid out, approved and entered on record as aforesaid, shall, as soon as may be practicable, be effectually opened, and constantly kept in repair ; and all public roads or highways made, or to be made, shall at all seasons be kept clear of all impediments to easy and convenient passing and travelling, at the expense of the respective townships as the law shall direct.</p> <p>Purd. Dig., p. 1279, pl. 49. It shall be the duty of the Supervisors aforesaid, in making and repairing the public roads, to make and maintain, within their respective townships, sufficient causeways of stone or timber on marshy or swampy grounds, and also to make and maintain sufficient bridges over all small creeks and rivulets and deep gullies, where the same shall be necessary for the ease and safety of travellers.</p> <p>Where a bridge becomes necessary to be built in the con-' struction of a highway, it becomes a part of the highway, and is to be kept in repair just as the highway is to be kept in repair. This statute says that the bridges must be “ sufficient for the-easy and safe travelling by the persons desiring to travel the same.” This word “ sufficient,” as used in this Act of Assembly, does not merely mean that there shall be a sufficient number of bridges. It does not merely mean that they shall be of sufficient width.- It means as well that they shall be of sufficient strength. The word “ sufficient,” as used, means that the bridges shall be equal to the end proposed by their erection ; that they shall be adequate to the wants of the public there; that they shall be competent for the purpose for which they are intended. Thus we find that when bridges form a part of the public highway, they must be of sufficient size and strength to accommodate the public in the usual and ordinary modes of travel, so that they may pass and re-pass over the same with ease and safety. The township, though bound by this law to the duty of the maintenance and sufficient repair of its bridges, is not absolutely bound for the soundness of the structure it erects as a part of the highway. The township is not an insurer against all defects, latent as well as patent, upon its highways, but is liable for negligence. Where a defect in a lawful structure is latent — that is hidden, cannot be seen, or is the work of a wrong-doer, for instance, some person cutting the timber — -express notice of it must be brought home to the township officers, or the defect must be so notorious as to be evidence to all passers, then the township will be charged with constructive notice. What is negligence is a question in each different case, and must depend on the peculiar circumstances of each different ease. When a bridge has stood for the time timbers are expected to last, and it may be reasonable to expect that decay has set in, it is negligence to omit proper precautions to ascertain its condition. In such cases — where it has remained a sufficient time — appearances will not excuse the negligence, but it is the duty of the supervisors to call to their assistance those whose skill will enable them to ascertain the state of the structure.</p> <p>These are the duties of supervisors in respect to the bridges. It is claimed by the township defendant that they ought not to be held liable in this case, because the bridge was not defective, or contained at least no such defect as the law holds them liable for. The plaintiff complains that the' bridge was defective, and that it was such a defect as the law holds the township responsible for. That then is one of the points for you to examine. Another point you will have to pass upon is, the defendants say (whether or not the bridge was defective) the plaintiff was not travelling in the usual and ordinary way in which persons travel in that township and its vicinity. That he was travelling by means of an unusual and extraordinary vehicle; and this will also be a question for you to determine ; whether or not he was using the usual and ordinary modes of travel; the modes of travel for which these highways were constructed and these bridges were intended to be used. It will be necessary for you to consider what sort of a vehicle this was. You will also consider its weight; that it consisted of three different parts which were connected together ; that these parts could be used separately ; that at the time the accident occurred the two horses were in front of the first machine and were upon the bridge. Their weight will come into consideration, together with the weight of so much of the machine as was upon the bridge. You will also take into consideration the fact that it was being propelled by steam, by traction. The engine, the front part of which was upon the bridge, was pulling the two vehicles that were behind. They were coming up the incline approach to the bridge on that side. You will also consider that this machine had been used in this township and vicinity for three seasons; that other machines were used in adjoining townships; and you will ascertain how much of this machine was upon the bridge — what weight there was there. Witnesses have testified as to the weight; you have the way-bill upon which the plaintiff paid his freight, and he explains why that shows more than the real weight. You will also consider that there was water in the boiler and in the tank. From the evidence you will determine whether or not this was an unusual vehicle, and determine whether or not the plaintiff was using the bridge in the usual and ordinary way that it was intended to be used. Then you will look at the bridge. Was there or not a defect in that bridge? This bridge it seems was built in June, 1877. The witnesses are called upon the stand who selected the trees in the woods and superintended their being cut down and made into timber, and their being put into this bridge. The witnesses are called who put it in. They testify as to the condition of the timber.. You will observe how long it remained there until swept away. The evidence is that it went off by a flood in July, 1888, that is, about six years and a month after it was erected. The whole bridge was carried down the stream some distance, .the abutments having been washed away. In August, 1883, the abutments were rebuilt and these same timbers replaced as the chords of the bridge. The witnesses are called who put the timbers back and erected the bridge in 1883. One of the • witnesses testifies that he' observed the unsoundness of the stick which broke, but did not communicate his views to the supervisor. Another witness testifies that he' observed it and told the supervisor. The supervisor is called but has no recollection of any such thing being told to him. Numerous other witnesses are called who were there and assisted' in re-building the bridge, and they testify that the stick was tested and was believed to be sound, and no objection was made by any person there as to its unfitness to be put in. You will also consider in this connection that this bridge was used from the time it was erected and until broken, by the persons who travelled back and forth across it, and that about ten days before this accident a heavy threshing machine, propelled by horse-power, was taken across the bridge, which, with the weight of the horses, would amount to about five tons. That a few days before another machine was transported across there, and the witness says, if the whole apparatus was on the bridge, it would weigh from three to five tons. You have before you a block cut from the chord that was broken. That is a piece of evidence which it will be, your duty to consider. In looking at that block you will remember that it is about two years — nearly two years — since it was broken,'and that that block was kept in a wagon shed —probably exposed to the weather — whether or not is not disclosed by the witness. Part of the time it was used as a chopping block. You will observe whether or not it contains dry rot or' discloses doziness, such as is claimed by the plaintiff. From the evidence you will determine whether or not that bridge was of defective construction at the time of the accident, and whether or not it was of such defective construction as the law will hold the defendants responsible for. If they knew it was defective, then of course the township would be liable for their knowledge and failure to remedy it. If they did not know of the defect, then was it such a defect, and was their means of examining it so imperfect, that they should be held responsible for it. If it was not that kind of a defect then the township would not be liable although it broke.</p> <p>Another point conies into this case-: the defendants claim that the plaintiff did not use ordinary care and caution in going over the bridge. That he was travelling with an unusual and extraordinary'vehicle of great weight, and being propelled by such power as increased the danger to bridges; that lie might have gone by another route; that he might have crossed the fording; that he might have hauled pieces over separately, and that they were arranged for that purpose. To this the plaintiff replies that the fordings were not used ; that he had no reason to suppose anything was wrong with the bridge, and that he was told the other route was unsafe. You will remember that the plaintiff is a resident of the township, and was, in 1879 and 1880, a supervisor of the township, and was probably acquainted with all the roads and bridges, acquainted also with the usual mode of travel in that vicinity, and was aware of the purpose for which the bridges were built. All this is proper for you to consider in determining whether or not the plaintiff neglected to do what an ordinarily prudent man would have done under the circumstances. The .points submitted by counsel are so numerous, and go so extensively over the law in' the ease that to avoid a repetition of what I have to say upon it, I think you will better understand the law by my proceeding to answer them at this place.</p> <p>Counsel for plaintiff respectfully request the court to charge the jury as follows, viz.:</p> <p>1. That the bridge over which the plaintiff was, .at the time of the injury complained, taking his steam thresher, formed a part.of tbe public highway, and the defendant was bound to keep the same in such condition and repair as to make it secure and safe for all persons having occasion to pass over it with their animals or any vehicles or property required to be taken ovqr the same, while in pursuit of .their lawful business g.nd employment.</p> <p>This point is refused because it is not .limited to the usual and ordinary modes and means of travel.</p> <p>■ 2. If the jury believe, from all the evidence, that the steam thresher, which the plaintiff was taking over the bridge at the time of the injury complained of, was used by' the plaintiff in conducting his usual business or employment, and in the pursuit and management thereof, it was necessary for him to use the public highways for conveying the said thresher from place to place; and that while he was thus engaged, and was passing over said bridge with said thresher, the said bridge, by reason of being defective, proved insufficient, and broke down, whereby the thresher, engine and other property of the plaintiff was damaged and injured, then the plaintiff is entitled to recover.</p> <p>This point is refused, because to justify its conclusion it does not require you to find that the plaintiff 'was using the public highway in the usual and ordinary manner. It does not recognize the distinction between latent and patent defects. Nor that the plaintiff was not guilty of contributory negligence.</p> <p>3. If the jury believe, from all the evidence, that threshing with a steam-power thresher is a legitimate employment, and that, at the time of the injury, the plaintiff was propelling his thresher over the highway and bridge as such threshers are ordinarily taken over highways and bridges, and the injury and damage was caused by a defect or the use of unsound timber in the re-building of such bridge, which defect the supervisor, by a proper examination, could have ascertained or discovered, then the plaintiff is entitled to recover.</p> <p>This point is refused, because its affirmance would require us to assume .that the plaintiff was not guilty of contributory negligence, and was using the usual and ordinary means of travel.</p> <p>4. If the jury believe from the evidence, that the chord or stringer was defective and rotten when put into the bridge when it was rebuilt, and such defectiveness or rottenness was the immediate cause of the injury, then the plaintiff is entitled to recover.</p> <p>This point is refused, because to justify its conclusion it does not require you to find that the plaintiff was using the public highway in the usual and ordinary manner, and requires us to assume that the plaintiff was not guilty of contributory negligence.</p> <p>Counsel for the defendant respectfully requests the court to charge the jury as follows:</p> <p>1. That the township defendant is liable only for want of ordinary care and diligence on the part of its supervisors in the maintenance of the bridge, which formed part of the highway.</p> <p>That point is affirmed.</p> <p>2. That the township is not liable, unless there was negligence upon the part of its supervisors in the maintenance of this bridge, and that the burden of proving negligence is upon the plaintiff.</p> <p>That point is also affirmed.</p> <p>3. That in order to enable the plaintiff to recover in this case, it must have been proven to the satisfaction of the jury, if the defect in the stick of timber was latent or hidden, that the township supervisors either had express notice of the defect and did not repair it, or that the stringer which broke must have been in use for such a length of time as would in itself imply a knowledge of its unsóundness 'on the part of the supervisor.</p> <p>That point is also affirmed.</p> <p>3|. If the jury believe that the ordinary life or durability of white oak timber, such as was used in the stringers of this bridge, was from 15 to. 25 years, and that the timber which broke had been used but six years, there could be no implied notice to the supervisors of the unsoundness of the stick.</p> <p>That point is affirmed.</p> <p>4. If the jury believe that tbe supervisors, or those in their employment, when rebuilding the bridge in July or August of 1883, tested the alleged defective chord or stringer by cutting into it with an axe, or in any, other manner,, as an ordinarily prudent man would do under the same circumstances, they performed their duty, and negligence cannot be inferred because of a mistake made in the performance of such duty.</p> <p>That point is affirmed.</p> <p>5. That the duty of the supervisors is well performed if the bridge complained of was in a reasonably safe condition for travel in the ordinary modes, in the neighborhood and by the people who commonly used said bridge.</p> <p>That point is affirmed.</p> <p>6. That the supervisors of tbe township, are not required by law to make preparation for the safety or convenience of those who "undertake to use the highway in an unusual or extraordinary manner, involving peculiar and special peril and danger by reason of the magnitude of the construction of the carriages used, or the volume or weight of the property transported.</p> <p>That point is also affirmed.</p> <p>7. If the jury believe that the plaintiff, in attempting to cross the bridge in question, was using the bridge in an unusual and extraordinary manner, or with extraordinary vehicles or vehicles of unusual weight not suitable ^or adapted to a highway opened and prepared to be used in the common intercourse of society and in the transaction of the usual and ordinary affairs of business, he takes upon himself the risk of loss and damage, and he has no right to recover from the township for the injuries sustained, even though such injuries be the direct results of such defects and imperfections of the highway as would render the township liable to individuals in the lawful and proper use of the highway.</p> <p>That point is affirmed also.</p> <p>8. If the jury believe that the vehicles being transported by the plaintiff across the bridge in question were of extraordinary weight and of unusual character, involving peculiar and special peril and danger to the bridge, the plaintiff was bound to exercise extraordinary care' and caution in passing over-the bridge, and the omission to exercise such extraordinary care and caution would be negligence on .his part, and he cannot recover in this ease.</p> <p>That point is-also affirmed.</p> <p>9. If the jury believe that an ordinarily prudent man, in transporting such vehicles as were used by the plaintiff across this bridge, would have- disconnected them and .taken them over separately, and the plaintiff neglected to do so and attempted to take them all over at once, the plaintiff would be guilty of contributory negligence, and the verdict must be for the defendant.</p> <p>That point is affirmed, if you find that such negligence, contributed to the happening of the accident.</p> <p>10. That the plaintiff was bound to take notice of the apparent strength of the bridge, the purpose for which it was built, and the kind of vehicles ordinarily used thereon; and if he took upon said bridge vehicles of unusual and extraordinary weight, he was putting the bridge to an unlawfuf use, and he is not entitled .to recover for damages that ensued.</p> <p>That point is also affirmed.</p> <p>11. That if the jury believe that an ordinarily prudent man, in transporting vehicles of the weight and character used by the plaintiff, would either have disconnected the parts and taken theni across the bridge separately, or would have crossed the creek by the one or the other of the two convenient findings, proven by, the plaintiff himself to have existed, then the plaintiff, by attempting to cross the bridge with the entire train of Vehicles connected together, was guilty of contributory negligence, and there can be no recovery in this case, no matter what the character or condition of the bridge may have been.</p> <p>That point is refused, because it seems to me to include a matter not proper for the court to decide. But it is submitted to you to say whether or not such negligence contributed in any degree to the happening of the accident. If you find it did, then we say to you, the plaintiff is not entitled to recover in this case.</p> <p>12. That it is the duty of the jury, in determining the question whether or not the supervisors performed their duty-in the premises, to take into consideration the situation of the bridge, the character of the highway of which it formed a part, the number of people it was designed to accommodate, the character of the travel over and across the same and the freight to be transported, and if the jury find that the bridge in question was sufficient to accommodate the persons likely, under ordinary circumstances, to use the same, and safe and convenient for travel in the ordinary inodes used in that neighborhood, the township is not liable for the accident resulting to the plaintiff, if such accident was occasioned by an extraordinary and unusual use of the bridge on the part of plaintiff.</p> <p>That point is also affirmed.</p> <p>Now, then, gentlemen of the jury, from this you discover that to entitle the plaintiff to recover you must be satisfied, first, that the plaintiff suffered damage'by reason of an accident that occurred while he was travelling on the highway, in the township of Washington. [He must show you next that at the time this accident occurred he was using the highway in the ordinary and usual manner in which that highway.is, has been, and was intended to be used. Then he must show you, in addition to that, that the accident complained of was occasioned by the negligence of the supervisors of Washington township in not keeping their public highways in proper and sufficient repair and condition. Then it must appear that the plaintiff was not guilty of any act'of neglect which contributed to the accident. If you find that this plaintiff was not travel-ling in the usual and ordinary way of travel in that vicinity, lie is not entitled to .'recover. If you find that this accident was not occasioned by the negligence of. the supervisors of Washington township in not keeping their public highways in proper condition and repair, then he' is not entitled fo recover. If you find that he in any degree contributed by his negligent acts to the happening of this accident, then he is not entitled to re.cover. Thus you see what the points are that you are to pass upon. If the plaintiff fails on either of these points, he is not entitled to recover.] . If he is entitled to recover in this case he will be entitled to a verdict for such damages as he suffered at the time of the injury, and the amount, as I have said, is not disputed. The detailed statement he gave you amounted to $349.06. If that is the amount of damage he suffered, he would be entitled to interest on that sum from the time of the injury until the time of the verdict. If the plaintiff is not entitled to recover, then your verdict will be, in general words, .verdict for the defendant.</p> <p>Nerdict for the defendant and judgment thereon; whereupon the plaintiff took this' writ assigning for error the answers to the plaintiff’s points, the affirmance of the defendant’s points, and that portion of the charge included within brackets.</p>

361. This was an issue between Valentine Rosar and Caspar Sossong, in which a note of Sossong payable to Rosar for $300, containing a confession of judgment, stood as the declaration and non assumpsit and non est factum, with leave to alter or amend, and the Statute of Limitations were the pleas. The facts of the case, as shown on the trial before Hand, P. J., sufficiently appear in the general charge of the court and in the opinion of the Supreme Court.

Ereoe to the Court of Common Pleas of Wayne county: Of July Term, 1885, No. 10. Ejectment brought by George W. Walker for three lots or parcels of land October 30th, 1883, against W. B. France. Plea, not guilty. The facts of the case, as they appeared on the trial before McCollum, P. J., sufficiently appear in the charge of the court and in the opinion of the Supreme Court.

150. The record showed the following: October 23d, 1882, petition for new public road filed. October 23d, 1882, appointment of viewers on the above petition. January 22d, 1883, report of viewers laying out road filed. January 22d, 1883, report of viewers confirmed nisi. April 2d, 1883, exceptions to report of viewers filed. June 25th, 1883, petition for review filed. June 25th, 1883, reviewers appointed. June 27th, 1883, court allows amendment of review.

176. Rule to show cause why judgment should not be stricken from the record, and the fi. fa. and levy thereon should not be set aside. Rule discharged except as to the levy on the defendant’s personal property. As to this the rule is made absolute. The defendant had insured his real estate in the Lycoming Fire Insurance Company, and had given in part payment of his premium the following deposit note:— $795.00.

43. Indictment of Charles Pilger for arson. Plea, not guilty. The facts of the case as they appeared on the trial appear in the charge of the court, Archbald, A. L. J. Charles Pilger, the defendant, stands charged in this indictment with felonious arson, in having on the 30th day of March, 1884, in this county, feloniously, maliciously and voluntarily set fire to burn, and cause to be burned, a certain dwelling-house of one Jacob Rodetskie.

217. Assumpsit by George Abraham against B. S. Mitchell to recover the amount of money he had been compelled to pay as an indorser of a note given under the circumstances hereafter set out. Plea, non-assumpsit, payment with leave. The following facts appeared on the trial of the case: In the spring of 1877 both parties to this suit ran ties down the river to Philadelphia.

229. This was an action on the case brought by Mary Brown against Jesse Orr et al., to recover damages for loss of the amount due her as beneficiary on a policy of life insurance in the Reading Mutual Aid Association, of which the defendants were the directors, by reason of their misapplying the moneys specifically collected to pay her as such beneficiary, and by reason of their refusal to levy and collect assessments on the members of said association to pay her as such…

3, of Berks county: Of January Term, 1885, No. 372. Appeal by Richard Denithorne and James Denithorne, against whom the action was brought as Denithorne & Brother’, from a judgment of a Justice of the Peace in favor of Geoi’ge W. Hook & Brother. Plea, noxx assumpsit, payment with leave, &e. The defendants filed an affidavit denying the partnership, and this was the only question contested.

<p>Error to the Court of Common Pleas, of Berks county: Of January Term, 1886, No. 426.</p> <p>Capias in trespass on the case sur promise of marriage, brought by Clara Lerch against Charles Gring. Pleas, not guilty, non-assumpsit with leave, &c.</p> <p>The following facts appeared on the trial before Sassaman, J.: The defendant did npt deny the promise of marriage alleged to have been made November 26th, 1882, but sought to excuse the subsequent refusal to marry upon the ground of physical incapacity upon the part of the plaintiff to allow sexual intercourse. In December, 1882, the defendant testified he ascertained from the plaintiff that there was a physical incapacity, the character of which she described to him, and that she promised to have it remedied, because she alleged she could not perform the duties of a wife without doing so. Sim failing touha ve The necessary-ep efations --perfo r m ed”he "S'tcTp p e d his visits and refused to marry. She denied the infirmity, that she had promised to have an operation performed, and that she had informed the defendant as to any infirmity or defect.</p> <p>There was evidence that the defect was well known to her. Dr. Ammon testified that he made an examination at her request; that he told her an operation was necessary, and that she could not marry without having this done. Dr. Reeser also testified that she had consulted him, and that after repeated efforts was unable to remove the physical defect, he advised that an operation was necessary, and that she did not have it performed. Both doctors testified substantially that the physical defect consisted of a thickened hymen so situated, abnormal as to position, and of such thickness as to preclude breaking by sexual intercourse; that an operation was necessaiy, and that the condition of the hymen was such that sexual intercourse after marriage could only be had in so imperfect a way as scarcely to be natural, and that it constituted an impediment to marriage without being operated upon.</p> <p>Upon the trial no aspersions were cast upon the character of the plaintiff by the defendant.</p> <p>The plaintiff presented, inter alia, the following points :</p> <p>2. If the jury find that there was a contract of marriage between the plaintiff and the defendant, and that the same was broken in such a manner as to disgrace, mortify, and humiliate the plaintiff, the jury can allow such damage as they see fit to compensate the plaintiff for such disgrace, mortification, and humiliation.</p> <p>Answer — This point is affirmed. (Eighth assignment of error.)</p> <p>3. The defendant having testified that he knew in the month of December, 1882, three months before tlie breach of the contract, of the alleged trouble of the plaintiff, and that he continued during the said three months to visit her, and keep up the engagement, and make preparations for the marriage, fixing a dajr for the celebration thereof, he is estopped from setting that matter up as a defence, and the verdict should be for the plaintiff.</p> <p>. Answer — The doctrine of estoppel invoked here would be correct if it applies, but its application depends so much on the mutual conduct of these parties to each other, that the jury must determine its applicability from all the facts relating to their conduct with each other. (Fourth assignment of error.)</p> <p>4. If the jury believe that the defendant seduced the plaintiff while he was engaged to marry her, they may, on that account, give punitive damages, for the purpose of punishing the defendant and compensating the plaintiff for the disgrace and mortification.</p> <p>Answer — This point is affirmed. (Ninth assignment of error.)</p> <p>5. If an impediment exists.with the plaintiff, in order to afford the defendant an excuse for the breach of his marriage contract, it must be such an impediment as would entitle him to a divorce after marriage, and if capable of being remedied by an operation, it would afford no grounds for divorce after, marriage. Therefore, if the jury believe that this impediment is capable of being remedied by an operation, it affords the defendant no excuse for the breach of his marriage contract, and the verdict should be for the plaintiff.</p> <p>Answer — We say that in the abstract this point is true, yet it may be modified by the degree of the difficulty and the character of the operation required. If the difficulty and the remedy would both be serious, common sense and a sound discretion might make a divorce, appropriate for the relief of such people after marriage on account of the seriousness of the difficulty; in such a case, if it could be ascertained before marriage, a breach of the contract would be excusable. (Third assignment of error.)</p> <p>In the general charge the court instructed the jury, inter alia, as follows:</p> <p>The girl speaks very little of her physical difficulty — in fact seems to indicate that she knew very little of it, and the doctors that were on the stand that have .examined her — you have heard their testimony. The principal men of experience were Dr. Beaver and Dr. Luther. I only speak of them because they were the oldest. The other doctors were learned and entitled to equal credit, and I have only named these two gentlemen because from their experience the}' would seem to have .more knowledge — but you must take all the medical testimony and it is, after all, the evidence upon which this excuse must rest. If you find from the medical testimony in the case that this breach of promise of marriage is excusable, your verdict must be for the defendant.' If you find from all the medical testimony in the case that the breach of contract was not ex-disable, then that breach of contract would have to be answered in damages, and • your verdict would be for the plaintiff for such damages, and you would have to assess these damages as you should find to be. just and proper. I repeat that it is from all the medical testimony of the cause, if you should ascertain that the breach of contract was excusable, then the verdict should be for the defendant. (Fifth assignment of error.)</p> <p>Verdict for the plaintiff for $1,575 and judgment thereon, whereupon the defendant took this writ, assigning for error, inter alia, the answer of the court to the plaintiff’s points, and so much of the charge as is above set out.</p>

<p>1. .A policy of insurance in favor of one who has no interest in the . life of the assured, either as a near relative or as a creditor, is speculative and a wager on the life of the assured. As against the representatives of the estate of the assured, the said beneficiary or his assignee can hold of the proceeds' of the policy only the amount which he has expended for fees and expenses.</p> <p>2. Gilbert v. Moose, 8 Out., 74, followed.</p> <p>3. The legal representatives of the estate of the assured may, in an action of assumpsit, recover from the beneficiary the amount received by him as the proceeds of the policy, less the amount expended by him for the policy. An assignment of all their interests in the policy to the beneficiary by all the heirs but one, a minor, and a settlement with the company by the widow of all her claim under the policy, is not evidence in said action to prevent recovery.</p> <p>4. The Orphans’ Court, in the distribution of the estate of the assured, has full power to judge between the widow and heirs and the said beneficiary, and award to him the amount justly due him.</p>

134. This was a certiorari is'sued at the instance of the city of Reading from the order, judgment and decree of the Court of Quarter Sessions of Berks count}7, wherein and whereby the; said court awarded a writ of peremptory mandamus or mandatory execution against the councils of the city of Reading, or their successors in office, requiring them or their successors to make ample provision for the payment of the sum of twenty-three hundred and fifty dollars, ($2,350) damages…

<p>Error to the Court of Common Pleas of Berks - county: Of January Term, 1886, No. 163.</p> <p>Case stated, in the nature of a special verdict, between the Township of Cumru, plaintiff, and the Directors of the Poor and of the House of Employment for the County of Berks, as follows:</p> <p>1. By an Act of General Assembly of the Commonwealth of Pennsylvania, approved March 29th, 1824, it was provided as follows: That the citizens of said county of Berks, qualified to vote for members of the House of Representatives, shall, at the general election next ensuing the passing of this Act, in the manner prescribed by the laws regulating the general election of this Commonwealth, elect three reputable citizens of said county to be Directors of the Poor and of the House of Employment for the county of Berks,.....to meet at the court house in said county,.....and divide themselves by lot into three classes; the place of the first to be vacated at the expiration of the first year; of the second at the expiration of the second year; and of the third at the expiration of the third year; so that after the first' election one director shall be annually elected in the mode above prescribed, to serve for the term of three.years......That the said directors shall forever hereafter, in name and in fact, be one body politic and corporate in law, to all intents and purposes whatsoever relating to the poor of the county of Berks, and shall have perpetual succession, and may sue and be sued, plead and be impleaded, by the name, style, and title of “ The Directors of the Poor and of the House of Employment for the County of Berks,” and by that' name shall be and are hereby authorized to receive, take, and hold any lands, tenements, and hereditaments, not exceeding the yearly value of twenty thousand dollars,.....and to purchase, take, and hold any lands and tenements within the said county in fee simple or otherwise, and erect suitable buildings thereon for the reception, use, and accommodation of the poor of the same county. The said Act of Assembly further prescribed that as soon as conveniently may be after their organization as aforesaid, the said directors shall make an estimate of the probable expense of purchasing the land, erecting the necessary buildings, and furnishing the same; whereupon the commissioners of said county were, by said Act of Assembljq authorized and required to provide by taxation of said county the moneys requisite for such purchase, erection, and furnishing. In pursuance and by virtue of said Act of Assembly the defendant corporation, being constituted, composed and organized in accordance with the provisions thereof, with funds for that purpose furnished by the county of Berks, in pursuance of and in compliance with the requirements of said Act of Assembly, acquired and purchased certain lands in the township of Cumru, in said county, amounting to about 600 acres, and erected buildings thereon, which said lands, with the buildings and improvements thereon, commonly known and designated as the “poorhouse property,” the said corporation defendant still holds in fee simple.</p> <p>2. The said lands are used, employed, worked, and cultivated by, and under the direction of, the said corporation defendant as farm land, and the revenues derived therefrom are accounted for to, and paid into the treasury of, said county of Berks, by said corporation defendant, in pursuance of said Act of Assembly, and incorporated with the general funds of said county.</p> <p>3. The expenses of the management of said property and institution are, in pursuance of said Act of Assembly, provided for by taxation of the county of Berks, and defrayed by means of orders or warrants drawn by said directors upon the treasurer of said county, and payable out of the general funds of said county. The said corporation defendant and said property and institution derive no support from the state.</p> <p>4. The 13th section of the Act of General Assembly, approved April 5th, 1848, provides: “That the real estate belonging to the county of Berks, and situate in Cumru township, in the said county, shall be liable to the payment of road taxes in the said township, and shall be assessed for that purpose in the same manner as the real estate in the said township owned by individuals.”</p> <p>5. The said real estate belonging to the county of Berks, held, as aforesaid, by said The Directors of the Poor and of the House of Employment for the County of Berks, in the said township of Cumru, commonly known or designated as the “ poorhouse property,” has been duly and in due legal form assessed, in the same manner as the real estate in the said township-owned by individuals, for the purpose of road tax in said township, in pursuance of said last mentioned Act of Assembly, and the road tax apportionable thereto has been duly and in due legal form assessed and levied thereon, opportunity being duly afforded and demand made upon said directors of the poor, &c., to work out the same, and payment thereof and of any balance or balances due thereupon has been duly demanded from the said The Directors of the Poor and of the House of Employment for the County of Berks, for and during the years 1878,1879, 1880, 1881, 1882, 1883,1884 —the road taxes for said years being payable, respectively, in the years 1879, 1880, 1881, 1882, 1883, 1884,1885 — and payment thereof, or of any balance or balances due thereupon, has been refused by the said The Directors of the Poor, &c., the corporation defendant.</p> <p>6. It is agreed that the total amount of the road taxes proportionable to and assessed as aforesaid, upon said “ poorhouse property,” for and during the years aforesaid, is $3,501; and that the work done by and under direction of the said the directors of the poor, during said years, upon notice and demand to work out road taxes, upon public roads in said township of Cumru, has been to the amount of $548.82.</p> <p>7. It is further agreed that all Acts of Assembly, special or general, bearing upon the question or questions presented or raised by this case stated, are to be considered as part thereof and as embodied therein.</p> <p>If the court be of opinion that the aforesaid real estate-held by the said The Directors of the- Poor and of the House of Employment for the County of Berks, in said township of Cumru, is liable to assessment for, and that the said corporation defendant is liable to pay, road tax in and to said township of Cumru, then judgment to be entered for plaintiff for the sum of two thousand nine hundred and fifty-two dollars and eighteen cents ($2,952.18) ; but if not, then judgment to be entered for defendant. The costs to follow the judgment, and each and either party reserving the right to sue out á writ of error therein.</p> <p>The court, Sassaman, J., directed judgment to be entered for the defendant, filing the following opinion:</p> <p>The point raised by this case stated is, Is the defendant liable to the plaintiff for road tax ? As to all other taxes this question was settled in the negative by the late Judge Woodward in The Township of Cumru v. The Directors of the Poor and House of Employment of Berks County, C. C. P., Berks Co., 183, April Term, 1864, 1 Woodward’s Decisions, p. 175. This would also, in principle, have held the defendant not liable for road taxes, but for the intervention of the Act of Assembly of the 5th day of April, 1848, P. L., p. 338, sec. 13, which says that the real estate belonging to the county of Berks, in the township of Cumru, shall be liable to the payment of road taxes in the said township. This would be definite and final in the determination by its legislative discretion had the matter been left to stand so. This section is a special enactment tacked on to a bill for other purposes, but it made positive law for the time being. The Constitution of 1874 for the State of Pennsylvania, art. 9, sec. 1, declares that all taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws, but the General Assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial, not used or held .for private or corporate profit, and institutions of purely public charity. In pursuance of this, now the fundamental law of the state, the legislature did, on the 14th day of May, 1874, enact that all hospitals.....and institutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity,.....be and the same are hereby exempted from .all and every county, city, borough, bounty, road, school, and poor tax: Act 14th May, 1874, P. L., 158, sec. 1, Purd. Dig., 1596, pl. 90. This is a generalTaw to carry out a constitutional provision and would supersede and by implication repeal any and every private or special law inconsistent therewith. This law prevails now in this county.</p> <p>It is admitted that defendants are a corporation under the Berks County Poor House Act of the 29th day of May, 1824, P. L. 200-6, and that these lands sought to be taxed, the buildings thereon erected, and the institution thereon conducted and maintained for about sixty years, was all done and paid for out of the funds and the treasury of the county of Berks, and that it was the institution for the maintenance and employment of the poor in and for said county. The whole affair required a continuous appropriation for the use of the poor drawn from the body of the people and their property by means of taxes levied upon them by the power of the county —collected and thus contributed. There is no question made that during all this time, and to this day, there was not an hospital, a department for the insane poor and place of employment kept there for the maintenance of the poor found within said county, who had no other means of support and maintenance. It cannot be successfully alleged or maintained that it éver was any source of revenue or profit to the said county. It is notorious that it annually requires a large amount of the public funds of the county to keep up this institution. No one is favored here above another — there are no class distinctions — all of the class of poor found within the county go there and are all kept, protected and maintained in one common home at the common expense of the county, which never has derived any revenue or profit therefrom. This makes it a purely public charity such as* contemplated by the Act of Assembly above referred to, and hence belongs to the class of properties exempted from the payment of taxes, including road tax. Many cases of this class have been before the Supreme Court, and in all of them, where the institutions were not in some way exclusive, but for the public good generally, and in no wise conducted for revenue or profit, they were held to be exempt. The only question is whether the present tax exemption law embraces the objects about which the controversy arises, and if it does, the statute is plain and conclusive. On this point we are clear that it is purely a public charity.</p> <p>Judgment for defendant.</p> <p>Judgment was accordingly entered for the defendant. The plaintiff thereupon took this writ, assigning for error the entering of judgment for the defendant.</p>

<p>Error to the Court of Common Pleas of Berks county: Of January Term, 1886, No. 170.</p> <p>This was an appeal by Samuel H. Rothermel from the judgment of an alderman for James F. Dumn for land damages and costs in a proceeding before said alderman, under the provisions of the Act of April 14th, 1863, to recover land demised, at the expiration'of the term of the demise.</p> <p>The facts of the case sufficiently appear from the charge of the court, Hagenman, J.</p> <p>During the trial the defendant offered the following evidence:</p> <p>Q. (To Samuel H. Rothermel): Tell us what took place between you and Mr. and Mrs. Stichter by which you came to get possession of this property, and built your wharf upon it, — give us dates and circumstances.</p> <p>Mr. Bland: Objected to by the plaintiff, if the offer is to show a lease with Mrs. Stichter, or from her for over three years, because in that case the lease must be in writing and produced.</p> <p>The Court: We will admit the question under our formeruling. Exception for plaintiff.</p> <p>A. Well, I went to Pottsville on December 4th, 1880, went to Stichter’s house, and met Mr. and Mrs. Stichter in the house, and wanted to buy the property which thuy.had in Fleetwood. He ashed too much for the property. ’ Then I wanted to lease. Mr. Stichter said he would lease it to me, and was trying to find out what'I was going to do with'the property. I told him — Mrs. Stichter being present most of the time, — I wanted to lease for 15 years, and he wanted to give me a lease for 5 years, and I to put up a wharf at n^ expense. I did not agree with him on the 5 year term, because I had to put up a wharf, and there was too much expense for the 5 year lease. So, finall}’-, we agreed to a lease for 10 years, and by the time we had agreed upon this lease, it was very nearly time for the train. It was on Saturday evening, and I did not want to miss it. So I paid him the rent right down — $60—and he wrote a receipt very quick, and I went off for the train. (First assignment of error.)</p> <p>Mr. Ermentrout: The defendant offers in evidence letter dated December 6th, 1880, marked D. T. A. F.</p> <p>Mr. Bland: The plaintiff objects, for the reason that it does not purport to be a lease signed by Maria Stichter, the owner of the property, or by any one in her name, or by her authority. 2. The evidence of the defence entirely fails to establish the paper which is now offered in evidence as the act of Maria Stichter, and it does not appear from anything that has yet been shown that she had any knowledge of it at all.</p> <p>3. The paper is inadmissible, as not in any sense in compliance with the requisites of the Statute of Frauds and Perjuries on the subject of leases of more than three years. 4. It is irrelevant, immaterial and inadmissible.</p> <p>The Court : If it appears that this paper was read by the parties at the time when they were together in Bernhardt’s office, the paper is admitted in evidence, together with everything that was said and done by them. Exception for plaintiff. (Second assignment of error.)</p> <p>Mr. Ermentrout read the letter in evidence as follows:</p> <p>Pottsville, December 6th, 1880.</p> <p>Mr. S. H. Rothermel — Bear /Sir: Before drawing up the agreement, we will agree what shall be put in it.' Have thought over it, and think the following will do with your approval. You are to have piece of ground for 10 years, pay yearly taxes, have it surveyed and corners marked off, construct a good, substantial wharf of oak timber, permit no rubbish or offal to be put on it, cannot sublet or rent any portion of the lot not used in loading of sand or ore without my consent, and to.pay $60 per year in advance, on the 4th day of December as the rent becomes due. If there is anything else to be put in, write me. We talked over and agreed upon all I have written, except where you will not have the power to sublet or rent any portion of the lot not necessary in the loading of sand and ore. York can use thé whole lot, but not to sublet any portion without my consent. I put this in to save trouble in case you should die (hope you may not), and another party got possession of lease and use it for any and every purpose. It will do jmu no harm. You can go ahead and put up your wharf and write me whether all contained herein suits you, as we want nothing but what is honorable. Write me.</p> <p>Yóurs respectfully, ' H. P. Stichter, Agt.</p> <p>“ Always write to Pottsville.”</p> <p>The court charged the jury as follows:</p> <p>You are sworn to try the issue between James F. Dumn and Samuel H. Rothermel. The evidence discloses that Mrs. Stichter of Pottsville was the owner of some property at Fleet-wood, which she sold to Madeira on the 22d of December, 1881, and was by him sold to James F. Dumn, the plaintiff, on January 13th, 1882, at which time the defendant was in possession. The property consists of a tract of land on which is erected an ore wharf.</p> <p>Mr. Dumn alleges that after he acquired the title to this property, he made an agreement with Rothermel, the defendant, to lease the property to him for one year at $60 rent, the year to. begin with the date of the deed to Madeira — . December 22d, 1881 — which rent was paid in advance. It is not alleged that this lease was made on' the 22d of December, 1881; but it is said that it was made after the 13th of January, when Dumn acquired title. Mr. Dumn says: “ Shortly after the tíme I bought — I cannot exactly state the date ; it may have been a week, more or less, afterwards,” he entered into this alleged agreement with the defendant to let him have this property, the year beginning on the 22d of December, 1881. On the 21st of September, 1882, he had a notice served on the defendant in which he states that he desires to re-possess his property again. The notice is as follows:</p> <p>Samuel H. Rothermel — Sir: Being in possession of a-certain wharf and piece of ground with the appurtenances, belonging to me, situated in the borough of Fleetwood, Pa., which was demised to you by me for the .term of one year, which term will expire and terminate on the 22d day of December next, I hereby notify you that it is my desire to have again .and re-possess the said premises; and Ido hereb3'-demand.and require you to leave the same. Witness my hand, this twentieth day of September, 1882.</p> <p>At the expiration of the time fixed for the running of the lease, the defendant continued in possession; and on the 6th of January following, 1883, the plaintiff commenced proceedings under the Act of Assembly, relating to landlords and tenants, for the purpose of recovering the .possession of his property.</p> <p>Where a tenant holds over after the termination of his lease, and when he has been fully notified according to the terms of the Act of Assembly, to wit, three months, the landlord commences his proceedings in law before a justice of the peace, if he wants to obtain possession of the premises. That was done in this case.</p> <p>Information was laid, and proceedings were started on the 6th of January, 1883; and on the 15th of January, 1883, judgment was rendered in favor of the plaintiff and against the defendant for these premises.</p> <p>[The defendant claims that he had a lease from the Stichters, beginning in -1880, and running for a period of ten years. He states that he went to Pottsville for the purpose of making a lease with the Stichters, and that he there made a lease with them, with Mrs. Stichter, for the term of ten years at the rate of $60 a year in advance. This was on the 4th of December, 1880, and on that day he paid them $60. Upon returning home, he took possession of the property, and made certain improvements;, building.a wharf and planting scales upon it, under his alleged lease for ten years.</p> <p>When Dumn became the owner of these premises in 1882, the defendant was his tenant; and if there was such an agreement made between the defendant, the Stichters, for ten years, the sale of the property by the Stichters to Madeira, and by Madeira to Dumn, did not destroy that lease. If the defendant had such a lease, he had the right to hold the premises for the time specified.</p> <p>Subsequent to the time when he alleges he made this agreement with the Stichters, the defendant- received a letter, which he claims is almost or quite tantamount to a lease, or an acknowledgment that there was a .lease, entered into between the parties.] (Fourth assignment of error.)</p> <p>[We will take the first part of that letter, and the jury will say from that what was understood by th.e parties. The letter is dated Pottsville, December 6th, 1880, and is as follows :</p> <p>“ Mr. S. H. Rothermel — Dear Sir : Before drawing up the agreement, we will agree what shall be put in it. Have thought over it, and I think the following will do with your approval.”</p> <p>Whether there was or was not a lease made between. Rothermel and tlie Stichters is a matter of fact which you will ascertain. If there was, then the improvements made by Rothermel in pursuance of it, although the lease is not in writing, would be sufficient to carry the lease. And, if the jury found there was a lease for ten years, and there was nothing else in the case, the plaintiff had no right to institute these proceedings, and oust the defendant.] (Third assignment of error.)</p> <p>It is claimed, however, on the part of the plaintiff that whatever may have been the rights of Rothermel by virtue of this alleged agreement with the Stichters for ten years,, after Dumn became the owner of the premises, there was a new contract and a n.ew lease made with the defendant. On this point Mr. Dumn testified as follows:</p> <p>Q. Did you lease to anybody? A. I did; to Samuel H. Rothermel, the defendant here.</p> <p>Q. For how long? A. The term of one year, for $60 payable in advance.</p> <p>Q. For one year from what date? A. It was agreed between us that the year was to run from December 22d, 1881, the date of the deed from the Stichters to Madeira, in the office of William Bernhardt, and end on the 22d of December, 1882.</p> <p>That he says was the agreement which he entered into with the defendant. After some further inquiry in regard to it, he says, speaking about the meeting at Bernhardt’s:</p> <p>“We finally agreed for one year’s rental for $60 in advance, and I gave him a receipt; and we agreed that the lease was to run from the date of the deed of the Stichters to Madeira, and end one year afterwards. I did not know the exact date of the deed from Stichter to Madeira ; did not have it with me ; and it was agreed between us that ’Squire Bernhardt should put in that date into the receipt after I had looked at it.”</p> <p>■ That is the plaintiff’s testimony in regard to what was agreed between himself and defendant.</p> <p>The defendant, however, contends that he did not enter into a new lease with the plaintiff; that the rights of the parties were to be maintained as they were before under the Stichter lease; and ’Squire Bernhardt is called to corroborate this statement of Ro therm el’s. The case before you then is, what, if anything, was agreed between the parties when they met in the office of ’Squire Bernhardt? To sustain his statement in regard to the terms of that new lease, the plaintiff points to the fact that the date of the time when it was to begin to run was left blank in the receipt; and that unless there was such an understanding, there was no occasion for leaving such a blank. Upon this the plaintiff bases his right to recover in this case.</p> <p>We have been asked by the plaintiff to charge you upon the following point:</p> <p>[1. The defendant has not shown by-any competent evidence that at the time of the proceedings of James F. Dumn for possession of the wharf, he, Samuel H. Rothermel, was in possession under lease from Maria Stichter, under which he might have held over. The proceedings for possession by James F. Dumn, the then owner, were therefore legal and regular; and that the plaintiff is entitled to recover in this case.</p> <p>If the jury find that there was a lease made at the time when they were at Bernhardt’s when that $60 was paid, and when that receipt was written, or an agreement for one year, then the plaintiff, his proceedings being regular (and there is nothing against the regularity of the proceedings), would be entitled to recover.] (Fifth assignment of error.)</p> <p>The defendant has also submitted points :</p> <p>1. The plaintiff, having in his complaint before alderman Brownwell, from whose judgment this appeal has been entered, made affidavit that he had leased the premises in dispute to the defendant on the 22d day of December, 1881, and having further testified before said alderman that the lease was made some time in January, 1882, in the office of ’Squire Bernhardt, at Fleetwood, 'for one year to date from December 22d, 1881, in pursuance of which judgment was entered in his favor by said alderman and the defendant dispossessed; the plaintiff will not be entitled to recover, unless the jury find under the evidence in this case that Rothermel, the defendant, agreed to lease the premises from Dumn, the plaintiff, as testified to by him.</p> <p>This point is affirmed. We have already said to you that it is necessary for Dumn to show that there was a lease made in January, 1882, between himself and the defendant.</p> <p>2. If from all the evidence in the case the jury do not believe that a lease was made before ’Squire Bernhardt, as the plaintiff has testified, then the verdict must be for the defendant.</p> <p>This point is affirmed.</p> <p>3. If from all thé evidence the jury believe that Dumn agreed to take $60 which Rothermel left with ’Squire Bernhardt, with the agreement that it should not affect the right which each party claimed to the property, and that no agreement was made by Rothermel to lease the same from Dumn, the verdict must be for the'defendant.</p> <p>This point is affirmed, provided the jury find that there was a lease made with the Stichters for the period or term of ten years.] (Sixth assignment of error.)</p> <p>- 4. If the jury should find for the defendant, it will be their duty, under the Act of 1863, to give such damages as under the evidence he shall have sustained by reason of his removal from the premises.</p> <p>This point is also affirmed.</p> <p>The question, then, comes back again to where we started— what, if there was any, was the lease between the defendant and the Stiehters? Was it a lease for ten years, or was it a lease from year to year? If it was a lease for ten years, the question arises whether that was changed when the parties met at Bernhardt’s. If it was changed, it is immaterial what the defendant’s lease with the Stiehters was. If there was an agreement entered into at Bernhardt’s office as testified to by the plaintiff, when he says, “ we finally agreed for one year’s rental at $60 in advance, and I gave him a receipt, and we agreed that the lease was to run from the date of the deed from the Stiehters to Madeira, and end one year afterwards.” If the jury find that to have taken place, and that that was the agreement entered into between these parties, these proceedings are regular, and the plaintiff is entitled to recover.</p> <p>Should you, however, find in favor of the defendant, it will be for you to say what-damages should be awarded to him. The defendant has testified what the building of that wharf cost him; and that is an element which is to be taken into consideration by you when you come to assess the damages. You will recollect also that before ever the defendant was dispossessed by the constable, he went there as early as three o’clock at night with two or three persons, and by or Ifefore seven o’clock, with some others, and tore down the wharf which he had built upon these premises; that Dumn came there and remonstrated with them, and that after he left, they continued tearing it down; and that Dumn returned with some twenty men afterwards to interfere with their tearing it down; and as fast as they tore it up and loaded it on the wagon, Dumn’s men unloaded it and spiked it down again. These, are niatters which you will take into consideration if you come to consider what damages the defendant suffered.</p> <p>That is all that is necessary for the court to say to you. You will first inquire what the lease was between Rothermel and the Stiehters, and if was for ten years, whether the parties met afterwards and made a different lease; and whether, as Dumn testified, they entered into an agreement that the lease, although made in January, 1882, should begin December 22d, 1881, for one year; and if the jury so find, the plaintiff will be entitled to your verdict.</p> <p>Verdict for the defendant and judgment thereon, whereupon the plaintiff took this writ, assigning for error the admission and rejection of evidence, the answers to the several points of the plaintiff and' the defendant, and those portions of the charge included within brackets, as above set out.</p>

<p>Error to the Court of Common Pleas of Columbia county: Of January Term, 1886, No. 242.</p> <p>Scire facias sur mortgage brought by David Phillips for the use of Josiah Phillips, against W. Potts Ramsey, Anna D. Hagenbuch, and C. C. Hagenbuch. Pleas, payment with leave, and as to Anna Hagenbuch the additional plea of coverture. ...</p> <p>The facts, as they appeared on the trial before Elwell, P. J., appear in the following charge to the jury:</p> <p>This case depends upon a question of law. There is no contradiction in the parol evidence, and we therefore take it for granted that all the facts alleged by the defendants are established, and the question is whether they amount to a defence in law. In 1878, William Potts Ramsay, brother of Anna D. Hagenbuch, purchased from David Phillips some property, agreeing to pay at certain times, and by April, 1874, to secure the balance due Phillips. He was unable to meet his obligations, and, not having, as he says, sufficient real estate to secure the debt, he applied to his sister, Mrs. Hagenbuch, to become surety for the balance due. There is no question that the debt to David Phillips was a valid subsisting debt against William Potts Ramsey, who owned one seventh interest in land which had descended to him and six other children of his deceased father, Mrs. Hagenbuch being entitled, at the date of the mortgage, to two undivided sevenths. On her brother’s application the sister consented to aid him. A mortgage was suggested (perhaps at the instance of Phillips), was drawn and presented for signature to Mr. Ramsey, Mrs. Hagenbuch, and her husband. The husband did not approve the arrangement, and hesitated to give his assent; at all events, he objected to being made personally liable. H,e was informed that the object was to hold the land, and upon that assurance gave his assent, and [the three (Ramsey, Hagenbuch and his wife), joined in the mortgage upon the one seventh Ramsey’s interest, and the two sevenths Mrs. Hagenbuch’s interest, as described in the instrument itself, which is properly executed, duly acknowledged, and is recorded, and binds these defendants, unless there is some principle of law w them is not bound Phillips to Josiah nessed by two witnesses passed to Josiah Phillips rich holds that some one (or more) of The mortgage was assigned by David hillips by an instrument in writing, wit- and recorded, which assignment the legal title, so that he can recover, provided David Phillips might have recovered. The question is whether Mrs. Hagenbuch, a married woman at the time of executing the mortgage, is bound by it; whether the mortgage has created a lien upon her property; whether-it was competent for her to make an instrument of that kind. Can a married woman bind her separate estate by mortgage for the debt of a person not her husband? She may, for a present debt of her husband. She may, for a future debt not yet contracted; but in all the cases in this state hitherto decided by the Supreme Court, the question appears to have stopped at that. The language is that “ she may give a valid mortgage for the debt of her husband,” “may bind her estate for the.debt' of her husband,” and this seems to have led to the conclusion that she could, go no further, that her power to bind her estate by mortgage stopped at the debts and liabilities of the husband, and such was the view we took in the Building Association case that has been cited here. But since that decision, a learned judge of the Supreme Court has gone further; and although the point is not precisely the same, yet, as the reason is applicable here, I have concluded to adopt the view expressed by that judge as the law of this case. As far back as 1838 (Jamison v. Jamison, 3 Whart., 457), the judge delivering the opinion said: “It has been further contended that a married woman has no power to mortgage her lands. It is believed, however, that nothing has been more usual in Pennsylvania than for husband and wife to mortgage the wife’s land by the ordinary mode of conveyance in a mortgage acknowledged according to the legal form; and it cannot be doubted that the power to convey in fee simple has been practiced from the first settlement of the province, and recognized and established by the Act of Assembly of 1770, which confers the right to mortgage, since the power to grant the land necessarily implies the power to grant a lesser estate.” The statute law authorizes a married woman to sell or convey her land, and it provides the mode by which she shall make the conveyance. Her husband must join with her, and the acknowledgment must be before a magistrate (empowered to take it) separate and apart from her husband — she acknowledges that of her own free will and accord she makes the instrument, without any coercion or compulsion on the part of her husband. Such a conveyance passes title as surely as though she were unmarried. The conclusion of the Supreme Court, in the case just read, is that if she can convey her land, pass the whole title away from herself, she certainly may make a conditional deed by which the land may be- returned to her again by the redemption money being paid. The case of Cridge v. Hare, 2 Out., 561, was decided in 1881, and is the latest we have upon the subject. In it Judge Tkunkey says: “A married woman may mortgage her estate for her husband’s benefit, to secure either existing debts or a future indebtedness: 23 P. F. S., 431. She may borrow money on the security of her mortgage, and immediately give the money to her husband: Daubert v. Eckert, 13 Norris, 255. The right of disposition is incident to her separate property, and she may sell it or give it to whom she pleases. But, generally, she could only convey her real estate with the consent of her husband manifested by his joining in the deed. [Her mortgage deed is valid When given to secure the debt of a stranger, upon the same principle that it is when given for her husband’s debt. She can make no binding executory contract- except as authorized by the statute; nor can she convey her real estate without compliance with the statutory requisites ; the consideration for her deed of mortgage may be valueless to herself, and yet be good. It has been settled that when she can convey her land she may mortgage it. Though a mortgage is often called a mere security for a debt, and in many respects that is true, yet it is a conveyance (subject to an equity of redemption), executed in the same manner as ah absolute deed.” Although the exact question raised here was not before the court there, yet the reasoning of the judge has. in it so much strength, that I feel myself forced to adopt his view as the law ox Pennsylvania. If a contrary view had been the mind of that tribunal, the Supreme Court, that a married woman could not mortgage her property to secure the debt of another person, these expressions of Judge Trunkey would have been brought to their notice, and there would have been an expression of dissent. It is therefore, I think, now the settled law of the state, that a married woman may make a deed in the shape of a mortgage to help her brother — may become security by mortgage for the debt of a person not her husband.] She would not be bound by a note, bond or judgment, because none of these have the-safeguard of separate acknowledgment before a magistrate. Her individual mortgage would not bind her; but [where there is a valid debt, and some of the parties to the instrument, some of the mortgagors, are bound, and she conveys her land as security for them, her land is bound by means of such conveyance, her husband joining in the deed.</p> <p>I might have contented myself by merely saying that the defendants have made no defence against this mortgage. Mr. Ramsey has no defence, because it was his debt and his mortgage. Mr. Hagenbuch has no defence, because the mortgage does not affect him, it being a proceeding in rem., enforceable only against the thing described; Mrs. Hagenbuch has no defence on the ground of being a married woman, because her conveyance was in due form of law, and she was not induced to enter into it by either fraud or duress, or anything of the kind.]</p> <p>[We instruct you that the plaintiff is entitled to a verdict for the whole amount secured by the mortgage (there being no evidence of any payment) with interest. It is contended that because Ramsey had agreed'with Phillips some time before the mortgage was executed that he would secure Phillips, the mortgage was' givén for a pre-existing debt of Ramsey, and is therefore void. We decline to hold that to be the law. Mrs. Hagenbuch may have thought that if she assisted her brother he would be able to go on with his busiuess, and that if she did not he might be sold out;, and she may have executed the mortgage to prevent that, a mortgage payable some three years after date, due April 1st, 1876. It is the same thing as though by mortgage'she had borrowed money of Phillips and handed it over to Ramsey for the purchase of goods.]</p> <p>Verdict for the plaintiff, and judgment thereon ; whereupon C. C. Hagenbuch and Anna Hagenbuch, his wife, in right of said wife, took this writ, assigning for error those portions of the charge included within brackets.</p>

<p>1. _When one person performs labor for another, the law ordinarily implies a contract of hiring and a promise to pay the price. Hear relationship of the parties by consanguinity tends strongly to rebut that presumption. Li the absence of any family relation, mere consanguinity of itself, as between grandfather and grandson, is insufficient for that purpose. The intention of the parties must be gathered from all the facts and circumstances of the case.</p> <p>2. A grandson, without any evidence of a contract of hiring, cannot recover compensation Lorn the estate of his deceased grandfather for services rendered to his aged grandfather and grandmother by sleeping in their home and caring for their wants at night.</p>

<p>Appeal from the Orphans’ Court of Berks county : Of January Term, 1886, No. 322.</p> <p>Appeal of George W. Levan from the decree of the Orphans’ Court of Berks County revoking the letters of administration granted to appellant and referring the matter back to the Register for the appointment of another person as administrator of Gideon Levan, deceased.</p> <p>The following are the facts as they appeared before the Register of Wills:—</p> <p>Gideon Levan died July 15th, 1885, leaving no widow, but six children in the following order as to age:—</p> <p>1st. Lucy, wife of David Wolf, living in Illinois.</p> <p>2d. - Maria, wife of Franklin Bridegam, of Berks county.</p> <p>8d. George Levan, living in Reading, Berks county.</p> <p>4th.- James Levan, living in Columbus, Ohio.</p> <p>5th. Louisa, wife of-:-Eckenrode, living in Reading.</p> <p>6th. Daniel M. Levan, living in Kutztown, Berks county.</p> <p>He left personal property worth about $430, and a farm worth about 6,000.</p> <p>On November 11th, 1885, George M. Levan, the oldest son, and Daniel M. Levan, the youngest son, both appeared before the Register of Wills and demanded letters of administration. Both were examined under oath by the Register. George claimed as oldest son, and objected to Daniel because Daniel has a claim against the estate of |2,000, which George contests. Daniel objected to George on the ground of alleged insolvency, and called witnesses to prove his insolvency. The effect of the testimony of these witnesses on the mind of the Register was to prove George’s solvency, good character, and fitness to administer. He therefore granted letters to George as first in right.</p> <p>From this decision Daniel appealed, and on hearing in the Orphans’ Court the testimony of Daniel, George, and Louisa was again heard by the court, Schwartz, J., who reversed the Register’s decision, held George Levan to be incompetent, and remitted the matter to the Register with instruction “thatthe contest of an administration should continue between Daniel M. Levan and Franklin Bridegam.” In making said decree the court filed the following opinion : — -</p> <p>On or before the 14th day of November, 1885, George Levan and Daniel M. Levan appeared before the Register of Wills, etc., for said county, and demanded letters of administration, each for himself, on the estate of their father, the said decedent. The Register on said named day, after having heard the proofs and allegations of the said applicants, awarded and issued letters to George Levan, the eldest son.</p> <p>On November 21st, 1885, Daniel M. Levan, the youngest son, took an appeal from said decision of the Register to the Orphans’ Court. The appeal came on to be heard on December 22d, A. D. 1885. From the records and evidence submitted, it appears that prior to the present proceedings said Daniel M. Levan and one Franklin Bridegam, a son-in-law,' were applicants for administration of this estate. At which the Register, after having heard the parties, decided that said George Levan was insolvent; Daniel M. Levan, a creditor, whose claim said George averred he wjoujd contest, and for that reason granted the letters of administration to said Franklin Bridegam. From this decision Daniel M. appealed. After the hearing of said appeal by the Court, it decided that under the statutes and the constructions put thereon, the Register must prefer males to females when in equal degree of consanguinity. That the mere allegation of George, that he would contest. the claim his brother Daniel held against the estate,, without assigning any objection to its validity, did not disqualify him and make him a litigant of the estate.</p> <p>The court for said reasons reversed the Register and annulled the appointment of Bridegam, and referred the matter back to him for further proceedings.</p> <p>From all of which it should have appeared to the Register that the court intended that the contest for administration should continue between said Daniel M. Levan and Franklin Bridegam. In other words, if the Register should, after due and full investigation, find Levan to' be a litigant creditor-against the estate, then to reissue administration to Franklin Bridegam ; if otherwise, then letters to Daniel M. Levan.</p> <p>The court is fully satisfied from the evidence in this and former proceedings that George Levan is .not legally entitled to administration on this estate. The evidence clearly discloses that he has no property except such as is exempt from levy and execution. His share of inheritance in this estate must not be taken into consideration in passing upon his solvency: Edward’s Estate, 5 W. N. C., 432.</p> <p>It has been shown that he has quite a number of small debts, some of long standing. The evidence also shows that in the past he could not be compelled to pay under process of law. It is, however, contended that this estate would be safe under his administration, for the reason that his sureties and other friends.would see that the funds were kept out of his control. Of this fact there can be no doubt. The parties interested and concerned with him in this matter would no doubt protect the estate. But as the precedent is bad, and inasmuch as the law and the court have no hold upon such protectors, it cannot recognize them. Administrators should be realities, not mere figure-heads. There is now a case pending before me where the accountant is only such in name. He is the responsible party before the law, but others have the fund. In my opinion' no court should lend itself to such arrangements. For these reasons the proceedings had in this matter before the Register are reversed.</p> <p>The matter is again 'referred back to the Register for further investigation, and appointment of a proper and legal person as' administrator of this estate, with instructions that he observe' laws laid down to him in this opinion.</p> <p>From this decree George W. Levan took this appeal assigning the decree for error.</p>

<p>Error to the Court of Common Pleas of Berks county: Of January Term, 1886, No. 59.</p> <p>This was a rule obtained by Gernant S. Maury, defendant in the execution, and Rebecca Maury, a lien creditor, upon Miller M. Evans, purchaser-at sheriff sale- of the real estate of Gernant S. Maury, to show cause why the sheriff’s deed to Evans should not be cancelled, and the sheriff’s sale of said real estate should not be set aside. This rule was granted upon the allegations of the petitioners that by a mistake 'in law they were led to believe that the lien of a mortgage upon this real estate would not be divested, and, as a consequence, there was an inadequacy of price. They subsequently filed an additional reason, viz., that the purchaser had perpetrated a fraud upon them, by reason of which he had succeeded in becoming-the purchaser of said real estate at the said sale. The rule was made absolute by the court, Hagenman, P. J., filing the following opinion, from which the facts of the case sufficiently appear.</p> <p>The depositions and records show that defendant, Gernant S. Maury, was the owner of a farm of 114 acres, and a tract of woodland of 15 acres, situate in Berks county, which said Maury accepted under proceedings in partition of his father’s real estate in 1869, the farm at $15,000, and the woodland at $315, a recognizance was entered for the amount of the valuation money to secure the widow her dower .and the other heirs their shares. In consequence of debts against the decedent’s estate, the recognizance was reduced to $11,586.86. One third of this sum, to wit, $3,862.28, remains a dower charge ; the widow is still living. There were three children, G. S. Maury, the defendant; Ellen, married to James Griesemer; and Catharine, married to George G.- Ruth. Each of these heirs was entitled to $2,574.85 out of the remaining two thirds of the recognizance. Mrs. Griesemer was- paid her present and future interest, and entered full satisfaction on the recognizance. Mrs. Ruth and her husband gave Maury a receipt for $2,000 for cash received. The balance, $574.85, Maury alleges, was settled by the surrender of notes which he held against the husband. This, however, is denied by Ruth. Mrs. Ruth is dead, and claim is made by her administrator for the balance, by suit, on the recognizance. So far as appears by the depositions, the balance would seem to be due. Subsequently the property became encumbered with other liens. The first after the recognizance was a mortgage in favor of Aug. B. Hottenstein, in trust 'for Rebecca Maury, the wife of the defendant, for $7,200. The next was a judgment in favor of Miller M. Evans, the plaintiff, for $5,000.</p> <p>In the spring of 1883, Evans having occasion to raise money, applied to his counsel, Mr. Bard, to have him dispose of his judgment of $5,000. An examination of the records revealed the fact that the wife’s mortgage was a prior lien. After inquiring into the financial condition of Maury, Evans’ counsel advised him to purchase the farm and woodland, the better to secure himself, even if he had to give a thousand dollars more than the property was worth. Accordingly, in the fall of 1883, Evans went to Illinois to see Maury, when an agreement was arrived at between .Evans and Maury and Mrs. Maury, whereby Evans agreed to give $14,000 for the farm and woodland. It was also agreed that Evans’ judgment of $5,000 should constitute part of the consideration money, and if the other liens, with the mortgage, exceeded the difference between $5,000 and $14,000, then the mortgage was to abate to that amount, and continue and remain a lien on the property at five per cent. Evans took some of the title papers with him when he returned home, to have the necessary deeds prepared by his counsel, and have the same forwarded to Maury and his wife for execution. A more thorough examination of the records disclosed the fact that the recognizance in favor of Catharine Ruth was unsatisfied. Correspondence was then commenced in relation to it between Evans, his counsel, and Maury. Thereupon-Maury mailed to Mr. Bard the receipt of Catharine Ruth and her husband for $2,000, given on account of her share secured by the recognizance, and with it a statement showing a settlement of the balance by notes and due bill, which Maury held against the husband. No claim was ever after made by Mrs. Ruth in her lifetime, nor by any one after her death, until it was discovered that the recognizance was not satisfied. Notwithstanding the adjustment which Maury alleged he had made with Mrs. Ruth for her full share, he was extremely urgent on Evans and his counsel to have a settlement made of the claim then made on behalf of her estate. He wrote that he was willing to take a thousand dollars less for the farm and woodland. The correspondence thus begun was continued to and into the fall of 1884, and one or two letters'passed between the parties after Evans had had. an execution issued on his judgment, and had the farm and woodland levied upon for sale by the sheriff. The sale was held on the 6th of December, the Saturday before the return day of the writ on the following Monday, and the property was purchased by Evans for $110. The deed was acknowledged in open court on the 20th of December,-and immediately taken to the prothonotary’s office, and in order to secure an early record of it on the same day, an extra fee was paid to the prothonotary. Within a week Evans went to the premises and secured possession by making a new lease with Maury’s tenant. After all this had been done Maury was notified that his property had been sold by the sheriff, and that Evans was the purchaser.</p> <p>Ity the sale Evans took the property discharged from Mrs. Maury’s mortgage of $7,200. In other words, he takes it at his bid of $110, with the only additional payment of the dower interest on the sum of $3,862.28 during the lifetime of the elder Mrs.’Maury, who is now well advanced in years, and at her death the further payment of one third of the dower charge, $1,287.43, to the heirs and legal representatives of Catharine Ruth, deceased. The other two thirds of the dower charge being the property of Maury, passed by the sale to Evans. If a motion had been made to set aside the sheriff’s sale before the deed was acknowledged, and the facts here stated had appeared to the court, the sale would certainly have been set aside. Now that the deed has been acknowledged and delivered to the purchaser, has the court the power to direct the deed to be cancelled, and set aside the sale?</p> <p>The Orphans’ Court will set aside a sale for mere inadequacy of price, but the Common Pleas will not unless the price is so grossly inadequate as to shock the common sense of the court. Where there is a clear case of inadequacy of price the court will seize hold of a slight irregularity- to set aside the sale. The time to take advantage of any irregularity is before the sheriff’s deed is acknowledged; when tliati. is once done all irregularities are cured. But where there is fraud on the part of the purchaser, the rule is otherwise. In such a case the court will grant relief and set aside a sale, although the deed has been acknowledged.</p> <p>It requires.no citation .of authorities to show that where the purchaser at a sheriff’s sale has been guilty of a fraud, the sale cannot be used as a means to transmit title'to him. In Gilbert v. Hoffman it was held that where one enables himself to become a purchaser of land át a sheriff’s sale by the commission, of a fraud, no title is vested in him by the sheriff’s deed. A claim set up under such circumstances would be speedily disposed of in an action of ejectment or on a bill in equity. We think the fraud may also be reached in an application to strike off the acknowledgment of a sheriff’s deed and to set aside the sale, one or two authorities will suffice. In Jackson to use v. Morter, 1 Nor., 291, it was held that the court has power to strike off the acknowledgment of a sheriff’s deed, and set aside a sheriff’s sale for fraud, if application be promptly made, where deed has not been delivered. In that case the deed was acknowledged at the September Term. On the 20th March following the rule was granted to show cause why the acknowledgment should not be stricken off and the sheriff’s sale set aside. Two terms, December and February, had intervened. Chief Justice Mercur said: The court may, for sufficient cause, set aside the sale before the deed has been acknowledged, is very clear. That it may exercise a like power after acknowledgment, but at the same term, appears to be conceded by the authorities, whether it may after the term at which the deed was acknowledged, and after being duly recorded and delivered, does not appear to have been distinctly ruled by the court.</p> <p>In the case of Shakespeare v. Delany, 5 Nor., 108, in the per curiam opinion Chief Justice Agnew says, Charles Delany being himself the purchaser at sheriff’s sale as well as an encumbrancer, clearly had a right to waive the effect of the delivery of the deed to him, and surrender it for cancellation with the permission of the court. The facts of that case showed there was no delivery of the deed to the purchaser, but Chief Justice Agnew expressed what he regarded as the law, the power of the court to direct a deed to be cancelled after it had been acknowledged and delivered to the purchaser, and to set aside the sale.</p> <p>Chadwick v. Patterson, 2 Phila. R., 276, was a case where the purchaser, after the deed had been acknowledged, came into court and asked to have it cancelled. There was no fraud, only a misdescription that seriously affected his rights. Judge Sharswood said, we vacated such acknowledgment at the instance of the purchaser, where he has produced the deed itself and delivered it up to be cancelled. In all other cases it has been refused with an intimation however, that we did not mean to preclude ourselves from interfering in a case of fraud.</p> <p>In Chadwick v. City of Philadelphia, 5 Nor., 110, the deed was executed and acknowledged by the sheriff, and delivered to 'the purchaser.' It was clone by mistake ; a rule to show cansé; why the sale should not-be set aside was still pending. The court ordered the-deéd to be returned to the prothonotary for cancellation. This was assigned for error. Judge Gordon, in the opinion, said that a court may intervene to protect such a creditor, where it has reason to believe that his rights have' been compromised, either through mistake or fraud, is not. doubtful. In Vauerman v. Cooper, 4 Clark, 219, Judge Lowrie, after discussing frauds in relation to sheriffs’ sales, used this-language: “ If any of these frauds are discovered, even after the deed is confirmed and before delivery, I do not know why they cannot be made a ground of setting aside the sale on motion without the need of a formal trial. Nor do I see anything' to prevent the court from interfering, even after the deed has-been delivered, if the money still remains in court undistri-' buted.”</p> <p>Cooper v. Wilson, 15 Nor., 409, was cited and relied upon as-sustaining a contrary principle from what I have stated.-. As; an authority it is conclusive that the acknowledgment of a sheriff’s deed cures all irregularities, such as misdescription, inadequacy of price, &c., but it goes no further. Indeed it recognizes the law as I.have stated it. The facts are briefly as follows : Minnis was the owner of a lot of ground on which: he executed a mortgage.. He afterwards sold one half of this lot to Wilson, the mortgage remaining a lien on it. Subse-' quently the mortgage was foreclosed, and the whole lot-sold to Cooper and deed acknowledged and delivered before Wilson learned that his half of the lot was sold.-- He presented his. petition, setting forth these facts and prayed the court to cancel, the deed and set aside the sale. The court below made such, an order. It was put on the ground'of misdescription and inadequacy of price. The property was worth from $3,000 to $3,500, and it was sold by the sheriff for $766. Judge Paxson said that this is an admittedly hard 'case, and from the-tenor of the opinion he had regrets that he was compelled to: reverse the court below. He further said, we have looked: through this record in vain to find something upon which we could sustain the action of the court below. The property' was sold under a valid judgment and upon legal process. The sale was duly advertised and a bill posted on the premises. It it true no bill was posted upon the-half of lot owned by Cooper, the terre tenant. The writ followed the mortgage and described it as one property. We have no doubt that relief might -have-been granted for the misdescription, had an application been-made in proper time. But it was too late after, acknowledgment and delivery of the deed and payment of the purchase/ money. There must be a point of time when such irregularities are cured. The law fixes the acknowledgment of the sheriff’s deed as that time. Were we to relax this rule we might imperil titles. There was no fraud on the part of the purchaser. The court below concedes that he contemplated no fraud until after the sheriff’s sale. If this is so, and there is nothing in the case to gainsay it, the mere fact that the purchaser was disposed to hold on to an unexpectedly good bargain does not make out a case of such fraud as the law can recognize. It is clear from this language that if the purchaser had been guilty of fraud before the sale, the judgment of the court below would not have been reversed.</p> <p>The next inquiry is, was there fraud on the part of Evans? Fraud consists as well in the suppression of what is true as in the representation or suggestion of what is false. No principle is more firmly settled, that the concealment of a material fact by design or mistake, however innocently made, avoids a contract on the ground of a legal fraud. When Evans entered into a contract with Maury and Mrs. Maury for the sale of the farm and woodland, and took with him the title papers to have the necessary deeds prepared for the convej'ance of the property, and especially when he assumed the part of agent in the settlement of the balance alleged to be due on the recognizance, a relation of trust and confidence was thereby established between Evans and Maury and Mrs. Maury, which rendered it inequitable on the part of Evans to acquire the title to the property by a judicial sale and wholly destroy the claim which Mrs. Maury had by her mortgage, without notice to Maury and Mrs. Maury. It would have been a breach of faith on the part of Evans to have allowed the property to be sold by the sheriff or by anyone; much more so to procure such a sale upon his own judgment. Evans had agreed to give $14,000 for the property. In his deposition he states that it is worth at least $12,000, and at the sheriff’s sale he buys it for $110. Does any one suppose that if Maury and Mrs. Maury had known of the sale, that Evans could have bought the property for such an insignificant sum ? Mrs. Maury could have bid the property up beyond the amount of her mortgage and would not have been required to pay more than the small balance alleged to be due on the recognizance. Maury says he knew nothing of the sale until after the property had been sold and was then first told of it by a neighbor who got his information from a Reading newspaper. As late as September 22d, 1884, Maury wrote to Evans’ counsel, stating: “You wrote me some time ago stating Ruth wanted $500 more out of estate. I answered, to satisfy Evans, I would take $600 less for the farm than what Evans was to pay. Ruth $500 and you $100 to straighten out matters and you never said yes or no, if that was not satisfactory. I do not know what you mean. Maury received no notice from Evans or his counsel in regard to the sale of the farm until after the sheriffs deed had been' acknowledged and delivered to Evans. Nor was any notice given to Mrs. Maury. Under these circumstances, the sale of the property by the sheriff on Evans’ judgment was a breach of good faith, and a fraud on Maury and Mrs. Maury. The principle ruled in Matthew’s Appeal, 8 Out., 444, applies to this case. It was there held, “ the relation of landlord and tenant is a confidential relation, so far as to render it inequitable for a tenant who is also a lien creditor, to issue execution and buy the property at a sheriff’s sale without notice to his landlord. Some of the authorities say that the application, to set aside a sheriff’s sale, must be made at the same term at which the deed has been acknowledged. Others extend the time: Stevens v. Stevens, 1 Phila. R., 108. As to rule to show cause why judgment should not be opened and also to set aside sheriff’s sale after the acknowledgment of sheriff’s deed, in the opinion Judge Lowrie said: “ But it is further objected that the parties come too late in asking the interference of the court, because a term has passed both since the judgment and since the acknowledgment or confirmation of the deed. We do not think so. I cannot help thinking that the assertions, so often made, that no court can reverse or amend its own final judgment for errors of fact or law, after the term at which they were entered is, so far as our practice is concerned, little else than a humbug, useful only to frighten ignorance and rashness from meddling with matters too great for their comprehension."</p> <p>In Jackson v. Morter, above mentioned, after referring to some authorities, and after discussing the question as to whether the court, at the same or at a subsequent term, can interfere after a sheriff’s deed has been acknowledged and delivered to -the purchaser, Chief Justice Mercur said, much must depend on whether the sale or acknowledgment was made through fraud, and with what promptness the application is made, to avoid the sale.</p> <p>This I am inclined to regard as the true rule. A party knowing the fraud cannot lie by and wait until it suits his convenience .to move. He must act promptly and diligently. If he delays, the court will not in this summary way grant him relief, but will compel him to resort to his action of ejectment or bill in equity.</p> <p>Maury lives in the State of Illinois. As soon as he learned that his property had been sold by the sheriff, he at once opened a correspondence with counsel at Reading. Some letters passed between himself and his counsel before the counsel was sufficiently informed of the facts to prepare the necessary papers to’ move the court for relief. There was no delay, action was-as promptly taken as the circumstances of the case admitted. The application to strike' off the acknowledgment of. the deed and set aside the sale, was made during the same term-at which the deed had been acknowledged.' The Act of 6th February, 1868, increased the number of the terms of the Court of Common Pleas of Berks county from four to eleven.</p> <p>The Act whs passed to expedite the business of the court. It provides that the terms shall commence on the second Monday of each and every month, except the month of July. And all writs for the commencement of actions, and .all executions shall, be made returnable on the first day of each and 'every term of sai'd court, excepting' writs of venditioni exponas and levari facias, which shall be returnable on the.'first day of the terms of said court in February, April, June, August, October and December. Thus six terms were established for the salé of real estate by the sheriff. The December term began on the 8th of December, 1884. The deed was acknowledged on the 20th. This application was madé oh the 2d of February, 1885, and February term began on the 9th Technically therefore the application to set aside thé sheriff’s sale was made at the same term in which the deed was acknowledged.</p> <p>Since the present age has demanded greater dispatch in the courts, and divided the year into more and shorter terms, the court will not confine themselves to the term, but will ascertain whether under all the circumstances of the case the party seeking relief i acted promptly and' made his application in a reasonable time.</p> <p>Evans having acquired title to this property through a breach of faith with Maury and Mrs. Maury, he can take nothing by the, fraud which he has practiced on them.. Maury having promptly and within a reasonable time .after notice of the fraud, presented .his petition to the court, he is entitled to have relief by this proceeding from the wrong which was done him.</p> <p>And now, 14th September, 1885, it is. ordered that the sale on the venditioni exponas above named be set asidé, the acknowledgment of the sheriff’s deed be rescinded, and that Miller M. Evans deliver up the deed to the sheriff to be cancelled. . It is further ordered, the prothonotary is directed to note this order on the margin of the page in the docket wherein is recorded or registered this deed in question.</p> <p>Miller M. Evans thereupon took this writ assigning for error the decree 'of the court making the rule absolute.</p>

<p>Error to the Court of Common Pleas of Northampton county: Of July Term, 1885, No. 79.</p> <p>Covenant brought by William Memmert and Babetta, his wife, in right of said wife, against Henry McKeen, to recover damages for a breach of covenant against incumbrances in a deed of conveyance. Pleas, non est factum,, non infregit eonventione, covenants performed, covenants performed absque hoc.</p> <p>The following áre the facts of the case as they'appeared on the trial before Reeder, J.:</p> <p>■By deed, dated December' 22d, 186.4, Thomas McKeen and' wife conveyed to Henry McKeen, the defendant, certain premises upon the east side of Second'street,'between Northampton and.Spring'Carden streets, in 'the bor'ougluof'-Easton.. Included in this conveyance were the honsés-and lots afterward- conveyed' by the said Henry- McKeen to John Reilly and to Babetta Memmert, the plaintiff. ' < -</p> <p>By deed dated December 30th, .1865, the said Henry'Mc-Keeri and .wife .conveyed to John-Reilly a- brick .dwelling house and lot of ground, being a portion of the.above described, premises. This'deed-contained :the following provision: “ Together with the right- to the said - John Reilly, his heirs, and assigns, to keep.and:maintain =th¿! front steps to said brick dwelling house as they -are now- erected.”</p> <p>By deed dated December 1st, 1866, for the consideration therein named, to wit, $1,800, the said Henry. McKeen conveyed to Babetta Memmert, the plaintiff, a certain lot or piece of ground situate on the east side of Second street, in the borough of. Easton, containing in. front or width upon Second street,‘forty-seven and eighteenths feet, joined upon the north by the lot conveyed (as above) to John Reilly. This deed to Babetta Memmert contains a clause of special warranty.</p> <p>The building upon the Reilly lot at the time of the conveyance was a two-and-one-half-story brick dwelling house, with a basement story, the front door to which was reached by a winding flight of steps. These steps were so constructed that they projected over in front of the Memmert house three feet and six inches, and extended out upon the pavement four feet and ten inches. The building upon the Memmert lot at the date of its purchase by plaintiff was a double one-and-a-half-story stone.house.</p> <p>About two years after the purchase of the property by Babetta Memmert, she desired to -rebuild the same, and upon notice to John Reilly (since deceased) to remove the steps, she was informed that he had 'the right to maintain the same .by deed fromRis grantor, Mr. Memmert then applied to Mr. Swift, who was Mr. McKeen’s agent at Easton, to have the incumbrance removed, and the agent’s answer was, “That is all right; that will be made good by Mr. M.cKe.en,” As no steps were taken by the defendant to have the obstruction removed, Mr. Memmert applied to- Mr. McKeen personally, three or four times, b'ut the latter always made excuse that .the plaintiff should go to Mr. Reilly.</p> <p>All efforts to secure relief having failed,, and , the plaintiff claiming that the words “grant, bargain, sell,” in the deed, 'are an express covenant against incumbrances done or' suffered from the grantor, this suit was brought to recover damages for the breach of covenant, and the permanent injury to the premises.</p> <p>The plaintiff presented, inter alia, the following points:</p> <p>1. That as the evidence is undisputed that at the time the ^property was purchased by Babetta. Memmert, the steps of the adjoining property, which was formerly owned by the defendant, and by him sold to John Reilly, projected in front of the property sold by the defendant to Babetta Memmert, three feet six inches, it constituted an incumbrance for which the defendant was bound to compensate the plaintiff.</p> <p>Ans. This we deny. (First assignment of error.)</p> <p>3. That if it was known to Babetta Memmert at tbe time she purchased, that the steps projected three feet six inches in front of the property sold to her, she is nevertheless entitled to recover damages- under the covenants in the deed.</p> <p>Ans. This point we deny. (Second- assignment of error.)</p> <p>4. Under all the evidence in the case the verdict must be in favor of the plaintiff.</p> <p>■ Ans. This point we also deny. (Third assignment of error.)</p> <p>The defendant presented, inter alia, the following points:</p> <p>1. Under the undisputed testimony of the plaintiff there can be no recovery by the plaintiff in the present case.',.</p> <p>Ans. This point we affirm. (Fourth assignment of error.)</p> <p>2. There can be no recovery under the pleadings in this case.</p> <p>Ans. That we affirm. (Fifth assignment of error.)</p> <p>3. Under all the evidence in the case the verdict must be for the defendant.</p> <p>Ans. That also we affirm. (Sixth assignment of error.)</p> <p>In the general charge the court instructed the jury, inter alia, as follows:</p> <p>So we say to you, gentlemen of the jury, that in this case, "if Henry McKeen-and William Memmert went upon this property at the time of the purchase by Memmert, as was testified to you by Henry McKeen and William Memmert both, and there was a patent, visible, and open encroachment upon the premises conveyed to William Memmert, of three feet and over, of the steps of the Reilly house beyond the line of the two buildings, then we say to you that under the decisions commencing with the case of Patterson v. Arthurs, in 9 Watts, 152, and ending with that of Wilson v. Cochran, 12 Wr., 112, that the law presumes that the vendee purchased and agreed upon the price with full knowledge of that defect or incum brance, and with the knowledge of that incumbrance in his mind, estimated and fixed the value of the property which he bought; that- is to say, that the law presumes that he paid the price agreed upon because of the existence of that incumbrance, and that if he paid the price at the time agreed upon, with full knowledge of the existence^ of that incumbrance, your verdict now should compel him to abide by that price. We therefore say to you, gentlemen of the jury, that under the instructions of the court, as we understand the law, it will be your duty- to render a verdict in this case in favor of the defendant. (Seventh assignment of error.)</p> <p>Verdict for the defendant and judgment thereon, whereupon the plaintiff took this writ, assigning for error, inter alia, the answer of the court to the points of the plaintiff and of the defendant, and so much of the general charge as is above set out.</p>

<p>1. An Act excluding perpetually from its operation counties containing more than one hundred and fifty thousand or less than ten thousand inhabitants is a local law. The perpetual exclusion of certain counties from the operation of a law is not a classification of counties.</p> <p>2. An Act to ascertain and appoint the fees to be received by prothonotaries and other county officers is an act regulating the affairs of counties. . The affairs of a county within the meaning of the Constitution are such affairs as affect the people of that county.</p> <p>3. The Act of June 12th, 1878, entitled, “ An Act to ascertain and appoint the fees to be-received by the sheriffs, coroners, prothonotaries, clerks of the several courts, registers of wills, and recorders of deeds of this Commonwealth, except in counties containing more than one hundred and fifty thousand or less than ten thousand inhabitants is a local law regulating the affairs of counties, and is in conflict with Article III, .section 7, clause 2, of the Constitution.</p> <p>4, So far as the compensation to county officers is concerned, the counties of the state have been classified by Article XIV., section 5, of the Constitution.</p>

<p>1. It is the duty of a constable, to -whom an execution is delivered to make return of the same to the justice on or before the return day. If ' he do not do so or show sufficient cause why execution should not issue' against him, upon, being summoned before the justice, under the Act of March 20th, 1810, judgment must be entered against him for the amount of said execution and costs.</p> <p>2. The measure of damages under said Act for neglecting to make return of an execution on or before the return day is the amount of the execution and costs; and it matters not that the constable could not, by the greatest diligence, have recovered anything whatever on the execution.</p>

<p>1. The taxing power of the state, within the limits of the Constitution, is bounded only by the necessities of the state and the will of the people. It may select its subjects of taxation, provide the requisite machinery for the assessment and collection of taxes, and impose penalties for their non-payment.</p> <p>2. The legislature has power to provide for an.increase of the assessment of a taxpayer in the case of his refusal to comply with the law in the matter of the return of his property to the assessor, by the addition of fifty per centum to the amount of his assessment estimated by the assessor from the best information at his command.</p> <p>8. The exception in the first section of the Act of June 30th, 1885, of “notes or bills for work or labor done” from other notes or bills as subjects of taxation, is in violation of Article IX. section 2 of the Constitution. This exception, therefore, drops out of the Act; but the Act stands.</p> <p>4. The proviso, in the first section of said Act, exempting building associations from the operation of the Act, is harmless, because said section does not, and was not intended to apply to corporations of any description.</p> <p>5. The phrase, “any person or persons whatsoever,” in the first section of said Act, does not include corporations.</p> <p>6. A tax upon the capital stock of a corporation is a tax .upon its property and assets.</p> <p>7. The tax on moneys at interest, mortgages, etc., imposed upon natural persons by said Act, is not by said Act extended to. corporations. The Act does not, however, for this reason, conflict, with, Article IX. sections 1 and 2 of tire Constitution, for said Act being, a, supple? • ment to the Act of June 7th, 1879, the two Acts must he read. together-, and by the Act of 1879, a tax similar to that imposed on the said;property of natural persons by the Act of 1885, is imposed on the-' capital! stock of corporations, artificial persons, by the Act of 1879...</p> <p>8» The constitutionality of the said Act of 1885 does not d'ep.end on section twenty of said Act, repealing taxes heretofore- laid' o.n manufacturing corporations, as the Act is complete without it.- The effect of tire repeal of the:tax on this class of corporations, is-, not discussed, on-determined.</p>

<p>Appeal from the Court of Quarter Sessions of the Peace of Carbon county: Of January term, 1886.</p> <p>Appeal by the Lehigh Coal and Navigation Company, on behalf of Mauch Chunk township, from the order of the Court of Quarter Sessions of the Peace of Carbon county, ordering a mandamus to issue against the supervisors of said township to levy and collect a special tax of seven mills.</p> <p>The facts of the case as they appeared before the Court, Dreher P. J., are shown by the petition, answer and paper filed in the case as follows :</p> <p>November 30th, 1885, the following petition was filed:</p> <p>To the Honorable, the Judges of the Court of Quarter Sessions of Carbon county:</p> <p>Your petitioners by their attorney, respectfully represent: That they are creditors of the township of Mauch Chunk, in the county of Carbon, and the plaintiffs in the following stated judgments which have been obtained against said township, which judgments together with the interest and costs thereon remain unpaid.</p> <p>Here followed the statements of thirty-nine judgments. They further represent that demand has been made on the supervisors of said township for the payment of said judgment and costs. That the supervisors of said township inform them that after the payment of the ordinary and necessary repairs of the roads and bridges in said township out of the taxes which they are allowed by law to levy, no funds remain in their hands to apply to the payment of said indebtedness.</p> <p>They therefore respectfully pray said Court to issue a writ of mandamus to John O’Donnel and Jenkins E. Jenkins, supervisors of said township, directing them by special taxation to collect an amount sufficient' to pay said judgments. And they will ever pray, &c.</p> <p>And now, November 30th, 1885, upon reading the within petition a rule is granted upon John O’Donnel and Jenkins E. Jenkins,'supervisors, to show cause why a mandamus shall not issue as prayed for, returnable next term. By the Court.</p> <p>January 12th, 1886, the said supervisors filed the following answer:</p> <p>The undersigned Supervisors of the township of Maueh Chunk .in answer to the petition filed as aforesaid, say:</p> <p>That it is true that the creditors named in said petition have recovered judgments against the said township for the amounts as stated in said petition. That it is also true as set forth in said petition that demand has been made of the undersigned for the payment of said judgments and costs. The undersigned further answer that after the payment of the ordinary-current and necessary repairs of the roads and bridges in said township out of the taxes which they are allowed by law to levy, no funds will remain in their hands to apply to the payment of said judgments. That the undersigned have no surplus in their hands or other funds belonging to said township out of which to satisfy said judgments; that the assessed valuation of said township is §567,495,'upon which a ten mill tax has been laid for the year ending the first Monday of March, 1886, §5,674.95. That a large-proportion of said taxes have and will be worked out by the tax-payers, amounting to at least §4,782.43, leaving a balance of $892.43 of said tax to be collected, which will be necessary for the payment of the ordinary and necessary repairs of the roads and bridges of said township'and other necessary and current expenses for the year ending first Monday of March, 1886. That the present indebtedness of said township outside of the current expenses for the year ending the first Monday of March, 1886, so far as has come to their knowledge is as follows:</p> <p>Judgments enumerated in said petition for mandamus about ..... §2,000</p> <p>Outstanding orders about .... 500</p> <p>Judgment in favor of John Brighton against the township debt, interest and costs, . . . 1,100</p> <p>Total indebtedness, §3,600</p> <p>The undersigned therefore aver in answer to said petition that they have not now and will not have in their hands any funds or taxes which can be applied to the payment of the judgments mentioned in said petition.</p> <p>January 21st, 1886, The Lehigh Coal and Navigation Company filed the following petition :</p> <p>The petition of the Lehigh Coal and Navigation Compaq" respectfully represents:</p> <p>That your petitioner is an incorporated Company and is the principal tax-payer of the township of Mauch Chunk in said county of Carbon, paying about two-thirds of the taxes in said township. That the alleged indebtedness for which the thirty-nine suits were brought and judgments obtained as set forth in the petition of the above stated creditors was contracted in violation of law, and said claims are not valid against said township. That said thirty-nine alleged claims are for labor and material claimed to have been performed and furnished upon and for the roads of said township during the years of 1883 and 1884, and that during said years your petitioner, the Lehigh Coal and Navigation Company, was not permitted by the supervisors of said township to work out its road taxes on the roads as it by law had the right to do, and that if the said Lehigh Coal and Navigation Co. had been permitted to work out its taxes according to law, there would have been no occasion to employ labor on the roads and make the indebtedness for which the judgments recited in the petition were obtained. That there is due to said township from the supervisors money sufficient or nearly sufficient to pay said judgments, and that the township auditors failed to charge the said supervisors with the amount due the township on the settlement of their accounts, and that your petitioner has appealed from said settlement of the said accounts on behalf of the said township, and that said appeal is now pending in the Court of Common Pleas of Carbon county, and that the sum due to the said township from the supervisors of 1884 is sufficient, with the ordinary taxes, to pay said judgments if they are valid claims against said township without levying any special tax for that purpose. Your petitioner therefore prays to be permitted to intervene in said proceeding to compel the supervisors to levy a special tax and be pérmitted to defend therein on behalf of said township, that if so permitted this petition may be treated as an answer to said rule. And your petitioner will ever prajn</p> <p>January 22d, 1886, this petition was read at the calling up of the petition and application of creditors of Mauch Chunk township referred to therein; the Court being of opinion that nothing contained in said petition can be legally objected against the creditors of the township, the same is dismissed.</p> <p>By the Court.</p> <p>The court on the same day made the following decree :</p> <p>And now, January 22d, 1886, the petition of a number of creditors of Mauch Chunk township having been presented, setting forth that they had recovered judgment against said township for the several amounts due them, and praying that a mandamus might issue to John O’Donnell and Jenkins E. Jenkins, supervisors of said township, commanding them by special taxation to collect an amount sufficient to -pay said judgments, and upon the reading of said petition on November 30th, A. D. 1885, a rule having been granted upon said supervisors to show cause why a mandamus should not issue as prayed for, and the supervisors aforesaid having on January 12th, Í886, filed their answer to said rule and petition setting forth and stating that the facts as stated and contained in said petition are true, but that no funds remain in their hands applicable to said judgments as set forth- in said, petition after the payment of the ordinary and necessary expenses of said township; that the assessed valuation of said township liable to road tax is $567,495. That in addition to the judgments contained in said petition other indebtedness exists against said township amounting to about $1,600, making the total indebtedness against said township about $3,600.</p> <p>Now, therefore, said rule is made absolute, and it is ordered, adjudged and decreed that a mandamus be issued directing and commanding John O’Donnell and Jenkins E. Jenkins, supervisors of Mauch Chunk township, and their successors in office, to levy and collect a special tax of seven (7) mills on the dollar on the present assessed valuation of taxable property, real and personal, and occupations in said township to pay said indebtedness.</p> <p>February 12th, 1886, The Lehigh Coal and Navigation Company filed the following offer of evidence:</p> <p>The Lehigh Coal and Navigation Company, a tax-payer in said township, which has intervened to defend - said township in the above matter, offers to prove that the alleged indebtedness to the extent of about $2,500 was contracted by William Fritz, one of the supervisors of Mauch Chunk township, in the year'March, 1884, to March, 1885, in employing men and purchasing materials .for the repairs of the roads of said township in violation of section 34 of the Act of 15th of April, 1834, by not permitting the said Lehigh Coal and Navigation Company to work out on the roads its taxes ; it having given to said supervisors notice of its desire so to do, and having been at all times ready to supply labor and material to the extent of the road tax assessed against its property in said township, and the value of the labor and materials which it might have been called on to supply being greater than the amount of such alleged indebtedness so incurred, and in excess of any needs of the said township during that year for working and repairing the roads thereof. .</p> <p>Second. That there is pending in the Court of Common Pleas of said county an appeal from the settlement of the auditors of said township of the accounts of the supervisors of said township for the year March, 1884, to March, 1885, involving the allowance of the claims for labor and materials for the repairs of the public roads in said township during said year so made by said William Fritz, supervisor.</p> <p>Third. That within twenty days from the rendition of the judgments against said township by Wm. Shea, justice of the peace, the then supervisors of said township were requested by said Lehigh Coal and Navigation Company to enter appeals from said judgments, the said company offering to pay all costs and expenses for obtaining said appeals and prosecuting them to final judgment, and to indemnify the then supervisors and the said township against all claims or loss by reason of said appeals, which request the supervisors declined to comply with.</p> <p>Fourth. That upon the then said supervisors refusing to take said appeals, James MeGready, a resident tax-payer of 'said township, within twenty days of the rendition of said judgments by said Wm. Shea, justice of the peace, went before the justice of the peace and on behalf of said township offered to take out appeals from said judgments against said township, pay the costs accrued, make the necessary affidavits, and give bail for interest, costs, and to indemnify said justice against all claims and damages which might be made against him by reason of granting said appeals, which offer of said MeGready was refused by said justice.</p> <p>Fifth. That said Wm. Fritz, supervisor of said township, in the year March, 1884, to March, 1885, is insolvent, and has given no valid security or bond for the protection of said township from his wrongs or neglects as said supervisor.</p> <p>Sixth. That no provision was made at or before the incurring of any of said alleged indebtedness to repay the same by the collection of an annual tax for that purpose.</p> <p>Upon this offer the following order was made :</p> <p>February 12th, 1886, the within paper with offers of evidence was presented to me at chambers, and it is ordered that the same be filed mine pro tuno as of January 22d, 1886, and the same is overruled nunc pro tuno as of January 22d, 1886.</p> <p>The same day the following statement was filed:</p> <p>February 12th, 1886. This day there was presented to me at chambers by counsel for The Lehigh Coal and Navigation Company a paper containing certain written offers to prove the facts therein stated, and on motion of counsel I indorsed on said paper an order allowing the same to be filed nune pro tuno as of January 22d, 1886, and at the same time I overruled the offer nunc pro tunc as of January 22d, 1886. The creditors of the township at whose instance the mandamus was issued as also the supervisors by their respective counsel objected to the motion for the order of leave to file the paper nunc pro tune because the Company had its day in Court when the offer could have been made, and because the supervisors, relying upon the order of the Court of January 22d, 188o, had already</p> <p>levied the tax and were proceeding to collect the same. I verbally stated to the counsel for the company (counsel for creditors and the supervisors notbeing present, but having stated their objection by letter), but did not note it in the order for filing the paper nunc pro tunc, that I had grave doubts as to the power of a judge of the Court of Quarter Sessions to make any such order -at chambers, but that the company might have the benefit of such action if the power existed, I made the order. The clerk of the court is therefore now this same day, February 12th, 1886, directed to file this paper as of the same date of filing the order, allowing the'offers of the said company to be filed nunc pro tunc so that it may appear of record that the said order was made under objection made by the creditors and supervisors of Mauch Chunk township.</p> <p>Samuel S. Dbeheb, P. J.</p> <p>The Lehigh Coal and Navigation Company took this appeal assigning for error the order of the court dismissing its petition to be permitted to become a party, the order of the court overruling its offer of evidence, and the order and decree directing the mandamus to issue.</p>

<p>1. Where the court withdraws the evidence from the jury and gives binding instructions, on review by the Supreme Court the question is, whether or not there was any evidence in the cause from which the facts in issue might be fairly inferred; and in determining this the court will not pass upon the credibility of the witnesses, nor the conflict in the evidence, nor will the preponderance of the proofs be considered; but the facts must be assumed to be as stated.</p> <p>2. What a contract between parties is, in its terms and extent, is ordinarily for the jury under all the evidence; its force and legal effect is a matter of law for the court.</p> <p>3. However general the terms of a contract may be, it comprehends only those things in respect of which it clearly appears the parties proposed to contract.</p> <p>4. Words employed in a release should not be extended beyond the consideration ; otherwise a release is made for the parties which they never intended nor contemplated.</p>

<p>. Error to the Court of Common-Pleas, of Bradford county : Of January Term, 1886, No. 39. ; • '</p> <p>Foreign attachment brought by George B. Davidson against A. C. Bentley, defendant, and L. Si Kingsbury,.garnishee, in -whose hands ihe sheriff attached a horse, Waxey B, as the -property of A. C. Bentley. , Kihgsbu'ry gave bonds and regained the horse. • Judgment ivas’obtained against the defeiid-ant for $494.38. -• - 1 ' -:</p> <p>; . A‘ scire, facias was issued and 'served- upon-Kingsbury, the garnishee, to-which he pleaded nulla bona: ■ ></p> <p>i - The facts of the case as they- appeared at the trial befor'e •¡Morrow; P. J.,-sufficiently appear in -the opinion of the Sd.preme -Court. . .- ’ . ...... „ :</p> <p>In the general charge the court instructed the 'jury, interalia, “ín your verdict we direct you.-to find, first, that this horse ,Waxey-B., was in the possession of L. S. Kingsbury when the attachment was executed, and that said horse was worth at that time so many dollars (which amount you will have to fix from the1 evidence), and that A-. C. Bentley owned (at lea,st) two sevenths of said horse. And if .you fail to find that the $500 which Mrs. Bentley at first paid on the horse was the money that her mother gave her, then you will find that A. C. Bentley owned, one half of - the horse.”</p> <p>The verdict.of the jury was: “That the horse, Waxey B.,' was in the hands of L. S. Kingsbury at the time the attachment was served, and that the value of the' horse was $1,650, and that A. C. Bentley’s interest was two sevenths of the-value of the horse, which would be $471.43.”</p> <p>Judgment was accordingly entered, and thereupon the garnishee took this writ' assigning for error, inter alia, the above portion of the charge'of the court. ;</p>

<p>1. A municipal corporation, granting to one a license for a purpose proper and lawful, in this case to lay a private water-pipe in the street, is not liable to one injured by reason of the misuse or abuse of that license, whether the same be by an independent contractor for the work from, the licensee, or by the licensee himself. ■</p> <p>2. That the street commissioner, or other authorities of the munici-' pality had knowledge, that the said license wasbeing misused or abused by the independent contractor of the licénsee or by the licensee himself, ¡in that the .excavations for water-pipes • in the streets were-left in unguarded and dangerous condition, will not render the municipality liable for damages resulting from such misuse or abuse of the license.</p>

<p>1. A verbal promise by an executor, either with or without assets, to a legatee to pay a legacy, since the Act of April 26th, 1855, P. L., 808, imposes no personal liability upon him, and no right of action against him can therefore be maintained.</p> <p>2. A testator bequeathed certain sums to Ms daughters and devised a farm to Ms son, and directed that the son should pay to Ms estate the sum of $500 to enable Ms executor to pay off-the said legacies. He had previously directed Ms executor to pay Ms debts. The personal property, including the $500 paid by the son, was not sufficient to pay the debts and the legacies. Held (as), that the legacies were not a charge upon the land; (b) that it was the duty of the executor to first pay the debts; (c) that in first paying the debts he was not guilty of a breach of trust, and was not personally liable to the legatees.</p>

148. Ejectment brought by George W. Stark against E. J. Shupp and S. A. Shupp for about one hundred acres of land in Lemon township, Wyoming county. Plea, not guilty. The following are the facts as they appeared on the trial before Sittser, P. J.: Plaintiffs title is founded on a tax sale made by the. treasurer of Wyoming county on the 12th of June, 1882. From 1872 to 1877 Henry D. Beebe was in possession of one hundred acres in Lemon township under a contract.

<p>Error to Court of Common Pleas, of Susquehanna county: Of January Term, No. 208.</p> <p>Trespass on the case by Albert Bell against the New York, Lake Erie and Western Railroad Company to recover 'damages for injuries .sustained by being struck by an obstruction, a gas pipe, carelessly and negligently carried over a railroad track by the defendant, over which track it was the duty of the plaintiff to pass in the performance of his duty. Plea, Not guilty.</p> <p>The following are the facts as they appeared on the trial before McCollum, P. J.:</p> <p>The New York, Lake Erie and Western Railroad Company are a corporation organized under the laws of the state of New York, and are the successors of the Erie Railway Company. Their railroad passes through the county of -Susquehanna, and they have at the borough of Susquehanna, large shops for the repair and manufacture .of locomotives, cars, switches, castings, frogs, and other supplies which are used upon, the various divisions of the road. Susquehanna being the terminus between the Susquehanna division on the west, and the Delaware division on the east, large numbers of cars of all descriptions accumulate, and are made up into trains necessitating a large number of parallel tracks in the yard.</p> <p>The shops of- the company are not all under one roof, but the foundry, hammer shop, and paint shop are separate from the main machine shop, as it is called, which is some 700 feet long.</p> <p>Between the foundry- and paint shop, and machine shop, a track is laid for the purpose of bringing in material and supplies to the various shops from the main track, and for carrying out the castings, cars, locomotives, and repaired and manufactured articles upon the main track, for' distribution over the road.</p> <p>There is also a scale upon this track upon which locomotives are run on to be weighed.</p> <p>All these shops, and the men employed therein, and on this foundry track, were under the general charge of V. Blackburn, who is known as the master mechanic, and under him was a general for.eman, J. Hawthorne.</p> <p>The master mechanic has the sole power of employing'and discharging men at these.shops, but this power he delegated to the general foreman, who frequently exercised it. There were about 800 men employed in and about these shops — and they Avorked under the immediate charge of foremen and bosses.</p> <p>O. D. Falkenbury was foreman of the foundry, Mr. Leal of the paint shop. C. O. Vedder was gang foreman of the turning department,, and bad charge of making rods and links, and of gas and'steam .pipe and fitting. . -</p> <p>M. H. Pope bad charge as a boss of a gang of nien whose business it was to bring in any cars loaded with materials and supplies for the shops from the main track, take them into the paint shop, foundry, and other shops, and unload them there, and to load any manufactured articles or supplies from the shops into cars for distribution along the road. For this purpose this foundry track was used. It was not used for the general transportation business of the road.</p> <p>The men in Pope’s gang were an engineer and fireman, who were upon a switching engine used only for this purpose : two switchmen, of whom the plaintiff was one; a number of laborers, who performed the work of loading and unloading the cars.</p> <p>O. D. Falkenbury, who was foreman of the foundry, applied to the master mechanic for leave to have a gas pipe run from the paint shop to the foundry so as to furnish light to inspect the cores of some particular castings made there. It being then winter, and the ground frozen, so that the trench to convey the pipe underground could not conveniently be dug, he was directed to wait until the spring, when the ground would be thawed out. In June he went to Mr. Hawthorne and received permission to have Vedder do it.</p> <p>Instead of having a trench dug and conveying the pipe under ground, O’Dea, who was one of the gasfitters, ran the pipe across this foundry track, sixteen feet and three inches above' the rail. This was done on the 29th of June, 1881, and the same afternoon, about 4 o’clock, before Hawthorne or Blackburn knew that the pipe had been put across over the track instead of under it, the plaintiff, in standing on a car which was being run into the shop, was hit by the pipe across his shoulders. He was not injured, but caught hold of it and tried to pull it down. He then went to Pope and told him of it, and Pope said he would see Hawthorne about it. Plaintiff says he said he would have it taken down. The pipe was of such a height as not to hit a man sitting on the cars or if he stooped about a foot or so.</p> <p>The plaintiff went to work the next morning after he had been hit by the pipe, and in passing along -on this track standing on a box car, with his back to the pipe, he was knocked off the car and sustained severe injuries, for which this suit is brought. He could have seen the other switch-man just as well if he had been sitting, as if standing on the car.</p> <p>The defendant claimed on the trial:</p> <p>Mrst. That the plaintiff, and all the men employed in and about these shops, being, and engaged in a common employment under the same general foreman and master mechanic, were fellow servants, and that for the negligent acts of any one, the other could not recover.</p> <p>Second. That'plaintiff having knowledge that the pipe was there the night before he was injured, was bound to look out for it the next morning; that a failure to do so was such utter recklessness, that the court was bound to pronounce it contributory negligence.</p> <p>Third.. That the fact that plaintiff told Pope, who was simply his immediate, gang boss, of it, even if Pope did say he would have it taken down, was no excuse for such failure to look out for the pipe before passing under it.</p> <p>The defendant-presented, inter alia, the following points:</p> <p>5. “That the men employed in the shops of the defendant, and the men employed in the shop yard, to take in and out cars loaded with supplies for use in the shops, and to load and unload them, all being under one common foreman, are fellow-servants, and for the negligent acts of any one of them, not communicated to the general foreman, no recovery can be had.”</p> <p>Ans. We decline to affirm this point. It calls upon us to say in substance, as respects the questions here, and the acts under investigation, that Bell, and O’Dea, and Vedder were fellow servants and co-laborers, and that we decline to do. (Fifth assignment of error.)</p> <p>6. “ That the plaintiff having testified that the injury was caused by a gas pipe crossing from the paint shop .to the foundry, and having shown by his own evidence that the same was put up by O’Dea, under the directions of Vedder, the foreman of the rod department, such act was the act of a co-employee, and if negligently done, no recovery can be had therefor by the plaintiff.”</p> <p>Ans. This point is refused. (Sixth assignment of error.)</p> <p>The plaintiff presented, inter alia, the following point:</p> <p>2. “If the jury believe that the gas pipe was put up just as sworn to by the plaintiff, on the 29th day of June, 1881, by O’Dea, by direction or permission of V. Blackburn, the master mechanic, as testified to by him, then the defendant is responsible for the manner in which it was erected, .whether a skillful workman was employed or not. For the defendants, in law, are deemed to be present, though not actually present. And if the gas pipe was so erected as to be unsafe and dangerous, or so as to render the place where the plaintiff worked unsafe and dangerous, then the defendants are, without further notice, guilty of negligence, and if the plaintiff was injured thereby he may recover for those injuries, unless the jury are satisfied from the evidence that the plaintiff’ was guilty of contributory negligence.”</p> <p>'Ans. "VYe affirm this point. (Second assignment of error.)</p> <p>Verdict for the plaintiff for the sum of $7,000, and thereupon judgment, whereupon the defendant took this writ, assigning for error, inter alia, the answer of the court to the plaintiff’s and the defendant’s points as above given.</p>

<p>Error to the Court of Common Pleas No. 4 of Philadelphia county: Of July Term, 1884, No. 18.</p> <p>Debt by the city of Philadelphia, at the instance of James Zimmerman, Joseph M. Hancock and Robert H. Bowers, constituting the board of building inspectors in and for said city, against Severin Singer, to recover the penalty imposed by the Act of April 21st, 1855, P. L., 265, for the violation thereof by the defendant.</p> <p>The narr in the case set forth that the defendant had erected and constructed five new dwelling houses in the city of Philadelphia, on a street of less width than twenty-five feet, and that there was not attached to each of the said dwellings an open space at the side or rear, equal to at least twelve feet square. To this the defendant pleaded “not guilty.”</p> <p>The facts, as they appeared on the trial before Elcock, J., are sufficiently shown in the charge of the court and the opinion of the Supreme Court.</p> <p>The court instructed the jury as follows: The law is that every man must erect his building on a twenty-five feet wide street, and must have at the back or sides an open space of 144 square feet. The buildings were erected in the rear of the lots on Sixteenth street, and the rear of the Philadelphia street houses. There is not sufficient space in front or any yards in the rear or at the side. What has been done since has nothing to do with this case. The penalty was then incurred, and defendant is liable for that penalty, if the'houses were not in condition at that time. If he had any understanding with the building inspectors it makes no difference, as they had no authority to do it. The law is imperative, and if the building inspector commits a wrong he has a remedy against him. [Your verdict should be in favor of the plaintiff for the penalty of $100 on each house.]</p> <p>The defendants in this case have requested me to charge:</p> <p>1. That the penalties in cases of this kind have been reduced fifty per cent: I do not think this applies to eases of this kind.</p> <p>2. That cases of this nature do not come irnder the jurisdiction of the board of building inspectors. This is refused.</p> <p>3. That if the jury find from the'evidence that this property is assessed as rural property, and is in the rural district, then the building inspectors were not authorized to bring this suit. This is refused.</p> <p>Verdict for the plaintiff for $500 and judgment thereon, whereupon the defendant took this writ, assigning for error inter alia, the answer of the.court to his points, and that portion of the charge included in brackets, giving the jury binding instructions to find for the plaintiff.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term, 1885, No. 425.</p> <p>Trespass on the case by Clarence William Layer by his next friend and father, William Henry Layer, against the Philadelphia, Wilmington and Baltimore Railroad Company, to recover damages for injuries sustained by him by reason of the alleged negligence of the said railroad company in running their cars. Plea, not guilty.</p> <p>The facts, as they appeared on the trial- before Peiroe, J., aré set out in the opinion of the Supreme Court.</p> <p>The defendant presented the following points:</p> <p>1. It being conceded that the child crossed between the cars, taking hold of the coupling- just as the train started, there was no duty of the defendant to it, and the verdict should be for the defendant.</p> <p>Ans. I decline to so charge.</p> <p>2. When a train covers, in part, a crossing while on a journey, no one has a right to pass under it at any point. It is the duty of all to stop or go around, and the defendant had a right to presume that this duty would be performed, and the verdict should be for the defendant.</p> <p>Ans. I affirm this so far as it relates to a train actually in motion. I will qualify it to read, “When a train covers a crossing and is actually in motion, it is illegal for one to cross between its cars, and while it is not in motion it is illegal for any one capable of contributory negligence to cross,” except in case of a child of tender years, who is not capable of contributory negligence, and if you find the plaintiff crossed, or attempted to cross, while the cars were in motion, the verdict in-such case should be for the defendant. That would be a presumption and point of law certainly well taken with respect to an adult, as one capable of contributory negligence. In this case it is qualified by a want of capability of contributory negligence, if the cars were not in motion when the plaintiff attempted to cross.</p> <p>Verdict for the plaintiff for $10,000.</p> <p>A rule for a new trial was granted which was discharged, the court making the following order: Rule for new trial discharged on plaintiff filing release of all above $7,500 within ten days, or on declining so to do, the rule for the new trial to be made absolute.</p> <p>Pursuant to the order of court made, plaintiff, by his next friend, W. Henry Layer, released all of the verdict above $7,500 with like effect, as if the verdict had been for plaintiff in the sum of $7,500 when rendered.</p> <p>Judgment was thereupon entered, whereupon the defendant took this writ, assigning for error the answer of the court to the above points.</p>

<p>1. A promissory note, given in a gambling transaction, is void; although negotiable in form, and in the hands of an innocent holder for value.</p> <p>2. The fact that a fraudulent device was superadded to induce the giving of the note does not destroy the gambling nature of the scheme.</p>

4, of Philadelphia county : Of July Term, 1885, No. 129. In this ease a lien was filed against ten houses for digging cellars, and the defendant entered security under the Act of Assembly, and had the lien removed.

143. Appeal of Robert Scott, surviving trustee under the will of James Jackson, deceased, and James G. Woodrow; executor of John T. Weir, deceased, co-trustee of said Robert Scott, from a decree of said court granting the petition of the remainderman, Nancy Brown, for a review of the adjudication of the joint account filed by said appellants, as of the date of the death of John T. Weir, the deceased trustee, and from the decree of said court dismissing certain exceptions…

1, of Philadelphia county: Of July Term, 1885, No. 144. Case by William Abernethy by his father and next friend Robert Abernethy against Christiana E. Schilling, to recover damages for injuries sustained by him by the falling of a privy wall on the premises belonging to the defendant, which, he alleges, she negligently allowed to remain out of repair. Plea, not guilty.

4, of Philadelphia county: Of July Term, 1885, No. 162. Ejectment by Leeds K. Bemdge and wife, in right of wife, against Jane Glassey, to recover possession of premises on Haverford street in West Philadelphia, containing in front sixteen inches, and in depth one hundred and fifty-three feet three inches, to Rockland street, on which it contains fifteen inches. The plea was, not guilty.

<p>1. To convert a deed, executed prior to the Act of June 8th, 1881, absolute on its face, into a mortgage by parol testimony, such testimony must be clear and specific, of a character such as will leave in the mind the Chancellor no hesitation or doubt; and failing in this, the effort to impeach the legal character of the deed must be regarded as abortive.</p> <p>2. A mortgage is essentially a pledge or security, and it is distinguishable ñ-om a trust in this only, that the property described in it is to revert to the mortgagor on the discharge of die obligation for the performance of which it is pledged.</p> <p>8. Where the intent is merely to pass the property as a pledge for the payment of a debt, the transaction may be regarded as a mortgage; but not so when the grantee has the power to sell the premises, though the proceeds are to be applied on the indebtedness of the grantor.</p> <p>4. Where a mortgagor or .trustee is liable to account to three jointly ’ and not to either severally, a bill in equity for an account filed by one alone should be dismissed for want of proper parties.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of July Term, 1885, No. 121.</p> <p>Appeal of the City of Philadelphia, trustee under the will of Stephen Girard, guardian of the estate of John M. Eisler, a minor, from the final decree of the Orphans’ Court of Philadelphia County, in the estate of Jacob F. Silber, deceased, sustaining exceptions to the adjudication of the Auditing Judge, in the distribution of the funds in the hands of the executrix as per her account filed.</p> <p>The following are the facts of the case as they appeared before the Auditing Judge, Hanna, P. J.</p> <p>On March 17th, 1877, the Orphans’ Court appointed David F. Krail guardian of the estate of John M. Eisler et al. minors. Security was ordered in the sum of $3,000, and Jacob F. Silber became security for the faithful performance by Krail of his duties as guardian.</p> <p>Krail entered upon his duties as guardian, and collected moneys belonging to the minors. He died insolvent about November, 1882, never having filed an account. His widow and administratrix filed the account of the deceased guardian, which was audited by the Orphans’ Court, and a balance of $421.10 found to be due the minor, John M. Eisler, which was awarded to the City of Philadelphia, trustee, &c., his present guardian. Upon the settlement of the estate of the deceased guardian a claim was' made for the amount due the minor, but only a pro rata dividend of $54.43 was awarded, leaving a balance still due of $366.67.</p> <p>Jacob F. Silber, the surety, died November 8th, 1877, leaving a will, by which he directed his real estate No. 1238 North Second street, and No. 2217 North Fourth street, to remain unsold during the widowhood of his wife. All his other real estate he .desired to be sold as soon after his decease as practicable, and the proceeds invested, and the income paid to his wife, so long as she remained his widow, and he authorized and empowered his wife, the sole executrix, to sell his real estate, except the two properties mentioned, at public or private sale, &e. In pursuance of this power and direction the executrix sold real estate on Kensington avenue, and filed her account of the proceeds. Upon the audit of the account a claim wms made for $866.67, the balance due .the minor’s estate by his deceased guardian. The claim was allowed, and the entire balance appearing on the account, $248.14, less the Orphans’ Court costs, was awarded to the appellant.</p> <p>The following is the adjudication:</p> <p>No objection was made to the account.</p> <p>Testator died November 8th, 18T7, leaving a will duly proved, by which he directed his real estate No. 1288 N.'Second street, to remain as a store and dwelling, and his business to be carried on by his wife, so long as she may deem best, and she remains his widow.</p> <p>' He further desired his property No. 2217 N. Fourth street to remain unsold and the income paid to his wife," so long as she remains his widow.</p> <p>By the next item of his will he desired all his other real estate to be sold as soon after Tris decease as practicable, and the proceeds invested and the. income paid to his wife, so long as she remained his widow, etc.</p> <p>And to carry out this purpose'he authorized and empowered his wife, the sole executrix, to sell his real estate, except the two properties mentioned, at public or private sale, etc.</p> <p>• In pursuance of this, power and direction accountant has sold some of the real estate, and now accounts for the proceeds.</p> <p>The only claim presented was that of the City of Philadelphia, as guardian of John M. Eisler, to recover against testator upon the bond entered into by him as surety of David F. Krail, now deceased, who was guardian of said minor.</p> <p>It was admitted that testator became the surety; that the guardian died insolvent; that his estate was settled by his administratrix, and of the sum found to be due his ward, viz.: ........ $421 10</p> <p>Only the sum of .... 54 43</p> <p>Was paid to his successor, --</p> <p>Thus leaving the balance of . . $366 67</p> <p>With interest from February 19th, 1884, due the estate of the minor.</p> <p>This is now presented as a claim against the estate of testator.</p> <p>Mr. Tull objected to the payment of the claim for the reason that the testator having been dead more than five years it was not such a debt against the real estate as could now be paid, as-it had lost its lien against the real estate from lapse of time. ’And further, there was no conversion by the will, and the proceeds of sale must go to the devisees of the land.</p> <p>In the opinion of the Auditing Judge it was unnecessary to consider the question of equitable conversion, and it may be conceded that the claim made is not a lien upon the land sold. A purchaser takes it clear of any lien, and it might have been sold by accountant at private or public sale, but still she is obliged to account for the moneys realized, and the same are to be applied to payment of decedent’s debts, whether liens of record or not, provided they are not barred by the Statute of Limitations.</p> <p>■ Here is a debt, admittedly due by testator and unpaid, and surely any moneys in the hands.of the administrator, whether from real or personal estate, should be applied to its payment.</p> <p>A sale of real estate could not be authorized to pay this debt, but if sold to pay any debts which are a lien, it may come in for payment out of the proceeds of sale.</p> <p>This is of common occurrence. The claim is, therefore, allowed.</p> <p>Balance due estate per account .... $248 14 From which deduct Clerk O. C. costs . . 7 50</p> <p>Balance..........$240 64</p> <p>Which is awarded to F. E. Brewster and Hon. F. Carroll Brewster, attorneys for the city of Philadelphia, as guardian of John M. Eisler, a minor, on account of his above claim.</p> <p>And now, April 13th, 1885, it is ordered and decreed that the balance in the hands of accountant be distributed and paid as above awarded, and the annexed account be confirmed nisi upon payment of the clerk’s costs.</p> <p>The widow and heirs of the decedent filed the following exceptions:</p> <p>Now, April 20th, 1885, comes Joseph L. Tull, counsel for widow and heirs of said decedent, and excepts to the adjudication filed by the Auditing Judge, sur account of the executrix of said estate, and assigns the following reasons therefor:</p> <p>1. Because the Auditing Judge erred in deciding that the proceeds of the sale .of real estate sold by said executrix after five years of decedent’s death, are to be applied to the payment of decedent’s debts, whether liens of record or not.</p> <p>2. Because the Auditing Judge erred in deciding that the debt of the testator proved that the audit could be paid out of the funds in the hands of the executrix, being the proceeds of the sale of real estate sold after the testator had been dead over five years.</p> <p>3. Because the Auditing Judge erred in awarding the sum of $240.64 to the city of Philadelphia, guardian of John M. Eisler, á minor.</p> <p>4. Because the Auditing Judge erred in not awarding the said sum to the widow and heirs of said testator under the terms of his last will and testament.</p> <p>The court in lane sustained the exceptions and made the following decree:</p> <p>May 23d, 1885. And now- above exceptions having been argued by counsel and considered by the court, it is ordered and decreed that the same be sustained. And the adjudication is corrected and modified as follows :</p> <p>1. The claim of the city of Philadelphia as guardian is disallowed.</p> <p>2. The balance in the hands of the accountant, after the payment of costs, viz., $240.64, is awarded to her for life, in accordance with the will of testator.</p> <p>3. And said adjudication as corrected is confirmed.</p> <p>The city of Philadelphia, trustee, guardian of John M. Eisler thereupon took this appeal, assigning this decree for error.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county : Of July Term, 1885, No. 133.</p> <p>This was an action of assumpsit, brought July 11th, 1870, by Dundas T. Pratt against Lydia Patterson and Frederick Patterson, executors of the last will and testament of George Patterson, deceased, to recover commissions, as a real estate broker, for the sale of real estate of George Patterson by the plaintiff. Pleas, non assumpsit, actio non accrevit infra sex annos, payment with leave.</p> <p>The following are the facts as thej’ appeared on the trial •before Willson, J.: In 1868 the plaintiff was a real estate broker. In March of that year George Patterson employed him to find a buyer for his real estate at the southwest corner-Eighth and Chestnut streets, Philadelphia. The plaintiff found a purchaser in the person of Mr. W. W. Harding, and the price agreed upon was $140,000, which was the price fixed by Mr. Patterson. Of this sum $30,000 was to be paid in cash, and the remainder secured by the purchaser’s bond and mortgage on the premises. Mr. Harding desired to purchase also the adjoining property, and being afraid that if his intention was known, the owners of the property would advance the price, he made an agreement with the plaintiff, by which a clerk in his employ, Mr. Thomas Natt, was put forward as the ostensible purchaser. Mr. Natt was a young man in Harding’s employ at a small salary, and was altogether irresponsible pecuniarily. By the arrangement made between the plaintiff and Mr. Harding, Mr. Natt was reported to the owner of the property as the purchaser, and his name was put into the written contract of purchase as the buyer. The name of the real purchaser was never communicated to Mr. Patterson.</p> <p>Patterson had represented the property as containing in depth about 10 per cent, more than it really contained, and when this was discovered the purchaser declined to give more than $135,000 for the property.</p> <p>The plaintiff replied that it was useless to make a reduced offer, as Patterson would not take less than $140,000, and that he, the plaintiff, would not communicate with him unless the purchaser agreed to give that sum for the property.</p> <p>The purchaser then said that he would give the $140,000 only on condition that the plaintiff should offer first respectively $135,000 and $137,500: they being declined, then to close the transaction with the $140,000. The plaintiff replied that he knew that the smaller offers would be declined, and that he would not submit them unless Natt would sign the agreement to purchase at $140,000 if Patterson should decline them. Natt then signed the agreement to purchase at $140,000 — $30,000 in cash, balance secured on the property. With this agreement the plaintiff called on Patterson. The smaller offérs were declined. The plaintiff explained to Patterson why he made them. Patterson accepted Natt as the purchaser, but said he would not sign the agreement until he had seen his lawyer, as he had got into trouble before by signing papers, but he said the “ sale is made,” and that he would produce the deed the next day to make the conveyance. He accordingly called on the plaintiff the next morning, but without the deed, and said again that he would consummate the sale. This, however, he finally refused do, and broke off all negotiations.</p> <p>. The plaintiff having closed his case, on motion of the defendants the court granted a compulsory nonsuit. This the court in banc refused to take off.</p> <p>Judgment of nonsuit was accordingly entered; whereupon the plaintiff took'this writ, assigning for error the refusal of the court to take off the nonsuit.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term, 1885, No. 142.</p> <p>This was an action of assumpsit upon a due bill given to ■plaintiff by defendant’s testator. The narr, in addition to the common counts, contained a special count on the due bill.</p> <p>The pleas were non assumpsit, payment with leave, &e.</p> <p>The action was brought on the. following due bill:</p> <p>“ Phila., April 5th, 1883.</p> <p>“ Due Miss Julia W. Lamb, Three thousand dollars additional compensation as saleslady in my store, No. 728 Spring Garden Street, payable within one year after my decease by my Executors or Administrators, to be paid out of my estate. If Miss Julia W. Lamb dies before it becomes due, the money will revert back to the estate. ;</p> <p>“ (Signed) John B. Green,</p> <p>“ 728 Spring Garden Street.”</p> <p>This was given in pursuance of an agreement of like date, which read thus:</p> <p>“ Phila., April 5, 1883.</p> <p>“Whereas Miss Julia W. Lamb has been in my employ for about twenty-three years as saleslady, and having been faithful in the discharge of her duty, and wishing to give her additional compensation for the services rendered, I hereby agree to give her a due bill for Three thousand dollars, payable by my Executors within one year from the time of my decease, to be paid out of my estate.</p> <p>“ (Signed) John B. Green,</p> <p>“ 728 Spring Garden Street.”</p> <p>The facts of this case must be gathered almost entirely from the above papers, as the court excluded the testimony of the testator’s daughter as to what she knew of the claimant, and of her services, during her father's lifetime, and of another witness who was ready to prove the value of claimant’s services.</p> <p>John B. Green died on the 14th day of June, 1883, leaving a last will dated 1st June, 1883, which revoked all prior wills.</p> <p>Testator’s daughter swore that on the Tuesday following her father’s decease she paid the plaintiff “ her week’s wages, six dollars. I knew that six dollars was her week’s wages, as I have frequently paid her before. She did not claim anything more being due her. She said that it was all right.”</p> <p>The court instructed the jury to find a verdict for the plaintiff, which they accordingly did in the sum of $3,153.</p> <p>Judgment was entered upon the verdict, whereupon the defendants took this writ, assigning for error the instruction of the court to the jury to find a verdict for the plaintiff.</p>

<p>1. An action to recover purchase money on articles of agreement is in' the nature of a bill for specific performance; hence where the title to the land is doubtful, or not marketable, the plaintiff cannot be allowed to recover.</p> <p>2. Where the legal title to land is outstanding in a naked trustee who may be compelled to convey at any time, the title is not a good and' marketable one; and an action on a covenant to convey a good and marketable title cannot be maintained by the vendor, upon his tendering a deed for said land with said legal title thus outstanding.</p> <p>3. Whether a title to land is a good and marketable one, is for the determination of the court on the papers and other facts submitted to it. The opinion of a witness, however competent to determine whether the title be good and marketable or not, cannot be received in evidence.</p> <p>4. Where a purchaser of land refuses to take it, pay the cash and give the required securities, he makes himself liable for the whole amount of the purchase money immediately. The verdict, in an action of covenant or debt to recover the purchase money on the articles of agreement, if for the plaintiff, should be an absolute and not a conditional one.</p>

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term, 1886, No. 179.</p> <p>The action was a scire facias sur, a municipal claim for paving the centre of Broad street, in front of a lot of ground belonging to the defendant. The claim was for $603.52. The defendant pleaded specially that the paving for which claim was filed was- not an original improvement, but a substitute for an improvement already made.</p> <p>The facts of the case as they appeared on the trial before Mitchell, J., are sufficiently set out in the opinion of the Supreme Court.</p> <p>The defendant presented the following points, all of which were declined by the court:</p> <p>1. That if they believe that Broad street, in front of the defendant’s lot, was, in or about the year 1855, as here alleged, improved-by the paving of the roadway on either side of the centre space or park with cobble stones, and by the filing in of the park with gravel, and the curbing thereof, and that the owner of the property paid for the same, the present claim is invalid, and their verdict should be for the defendant.</p> <p>2. That if they believe that in or about the year 1866 the central part of Broad street, called the park or boulevard, was macadamized, the present claim is invalid, and their verdict should be for the defendant. *</p> <p>3. That the fact that the defendant signed a petition to the councils asking that the central part of Broad street be paved with Belgian blocks, cannot prejudice his claim here that he is not to be charged with the cost thereof in front of his lot.</p> <p>4. That municipal claims are taxation for local benefits, and if the jury believe that the work for which this claim was filed was not a benefit to the lot of the defendant, their verdict should be for the defendant, although the public at large may have been benefited.</p> <p>5. That inasmuch as the assessments of the property on Broad street, including this property of the defendant, are lower at this time than they were in 1878, the evidence is conclusive that the property has not been benefited, and their verdict should be for the defendant.</p> <p>6. That as the Act of March 23d, 1866, which authorized the improvement of Broad street, intended the said street as a public drive, and the improvement thereof for the public benefit, the paving at Broad and Wharton streets, for which this claim is made, having been in pursuance of the said Act, was not a local benefit te the said property, and should not be charged thereon, and, therefore, the verdict of the jury should be for the defendant.</p> <p>7. That under the evidence in this cause their verdict should be for the defendant.</p> <p>The jury, under the direction of the court, found a verdict for the plaintiff for $807.50, the trial judge saying :</p> <p>“ I may assume that the question will be reserved, stating all the facts ; the admitted fact that the road was graveled in 1855 and was macadamized in 1864 or 1865. I propose to take a verdict for plaintiff, reserving the point whether, those facts being conceded, this charge for the present pavement can be sustained. The jury is directed to find a verdict for the plaintiff for amount stated.”</p> <p>Subsequently the court entered judgment for the plaintiff.</p> <p>The defendant thereupon took this writ, assigning for error the refusal of his points and the direction of the court to the jury to find their verdict for the plaintiff.</p>

2, of Philadelphia county: Of January Term, 1886, No. 75. This was an appeal by David H. Lane and Henry G. Clement from the decree of said court in discharging a rule to show cause why a judgment entered on a bond by virtue of a power of attorney should not be opened, and they be let into a defence. The following are the facts of the case as shown by the depositions : Prior to 1874, Charles Hooper was a bill clerk in the employ of the Trustees of the Philadelphia Gas Works.

<p>Certiorari to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term, 1866, No. 50.</p> <p>The record showed the following:</p> <p>On September 23d, 1885, the said Edward C. Napbeys presented to the court below a petition, alleging, inter alia, that on the south end of the west side of said 309 Cypress street was a wall, which had been condemned by the building inspectors as being a party wall insufficient for the building about to be erected by the petitioner. That notice had been given to respondent, George K. Childs, on September 19th, 1885, and praying that the court order and direct the respondent to take down said wall, or permit the petitioner and his agents and contractors to enter upon said land, No. 309 Cypress street, and take down and remove said wall, and that the said Childs had taken no appeal from said condemnation.</p> <p>On September 24th, 1885, George K. Childs, the respondent, filed an answer to said petition stating, inter alia, that the whole of said brick wall is erected upon land occupied by respondent.</p> <p>That the adjoining premises on the west were lately known as the “Scots’ Presbyterian Church,” and were lately sold and conveyedTo the petitioner as your respondent is informed, at which sale and conveyance it was expressly stipulated by the trustees of said church that they could give no title to, nor make any conveyance of, said brick wall, and that their title extended only to and as far as the said wall and no further; that the said petitioner accepted the said property subject to such line as set forth to them by said trustees.</p> <p>That the respondent admits that no appeal has been taken up to the time of filing this answer, but avers that the time for taking an appeal to the Court of Common Pleas, as allowed by law, lias not elapsed, and that the prayer .of said petition is premature and should be dismissed. That the said wall is perfectly safe, and capable of sustaining the building placed' upon it. All of which facts the respondent avers he is ready to verify.</p> <p>The court upon that date immediately heard the cause upon petition and answer, and make the following decree:</p> <p>•And now, to wit, September 24th, 1885, on motion of E. C. Mitchell, Esq., attorney for petitioner, it is ordered and decreed that the said petitioner, Edward C. Napheys (who is the last builder), do remove and take down the party or division wall which has been condemned as set forth in the said petition; the cost and expense of the new wall to be erected in lieu thereof shall be borne and paid exclusively by the said petitioner, Edward C. Napheys.</p> <p>George K. Childs thereupon took- this writ and filed the following assignments of error :</p> <p>First. The court below erred in entertaining the petition, because:</p> <p>1. No affidavit of the facts had first been filed by the building inspectors setting forth the said violation particularly.</p> <p>2. Because the petitioner, George C. Napheys, was not the proper person to prosecute said suit.</p> <p>Second. The court below erred in entering the decree and not dismissing the petition. Because :</p> <p>1. No affidavit of the facts had first been filed by the building inspector setting forth the violation particularly.</p> <p>2. The facts necessary to give the court jurisdiction were in dispute.</p> <p>3. There was no proof of the allegations of fact in the petition which were denied in the answer.</p> <p>4. The court should have referred the case to an examiner for proof, or sent the same to a jury to try the disputed questions of fact.</p> <p>5. The petition, answer and decree are in the nature of an ejectment bill.</p> <p>Third. The court below erred in finding that said wall is a party, wall. Because:</p> <p>1. The facts set forth in the answer are uncontradicted, and show the whole wall is erected upon the land of the respondent, and that the petitioner’s title extended only to and as far as said wall.</p> <p>2. The fact was shown that petitioner purchased subject to the line of said wall with full knowledge. ‘</p> <p>Fourth. The court below erred in entering the decree of September 24th, 1885, because the time for taking an appeal to the Court of Common Pleas, as allowed by law, had not elapsed.</p>

1, of Philadelphia county: Of January Term, 1886. This was an action on the case brought by Sophia Conway, the widow, and Mary Ellen, John Owen, and James Patrick Conway, minor children of Hugh Conway, deceased, against the Philadelphia, Wilmington and Baltimore Railroad Company, to recover damages for his death caused by the alleged negligence of the defendant. Plea, not guilty.

<p>1. - A lease for three years from a time subsequent to the time it was made, signed and sealed by the lessee, and signed by one as agent for the lessor, he affixing a seal to the lessox’’s name, without any authority in writing to execute the said lease, which lease was never accepted or ratified in writing by the lessor, vests no certain term in the lessee; he holds only an estate at will.</p> <p>2. As no certain term vested in the lessee, the consideration for his covenant failed,' and an action of covenant will not lie upon the lease; but the lessee is liable in assumpsit for the rental value of the premises he occupied ; and in this action the said lease is admissible in evidence on the question of value. .</p> <p>3. Whether the case would be different had the lease been for a term not exceeding three years from the making thereof, not determined.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term, 1886, No. 246.</p> <p>This was an issue between John V. Sears, assignee of Harry F. Newhall, to the use of T. Morris Perot, plaintiff, and Elijah E. Griffiths, defendant. Judgment entered on a bond given by Griffiths had been opened to let him into a defence. Pie pleaded, payment with leave, etc.</p> <p>The facts as thej^ appeared on the trial before Ludlow, P. J., were as follows:</p> <p>In 1880, Elijah E. Griffiths commenced buying stocks on a margin from Harry F. Newhall, a stock broker. Griffiths at first deposited with Newhall, as a margin, $300, and after having lost that, in order to protect said Newhall from any loss which he might incur in buying or selling stocks on said Griffith’s account, said Elijah É. Griffiths, with his mother, Catharine E. Griffiths, and sister, Anna E. Griffiths, executed and delivered to said Harry F. Newhall a bond and mortgage, dated May 8th, 1880, for $4,000, conditioned for the payment of $2,000 at the expiration of one year from date, together with interest thereon. Newhall never paid any money for the bond and mortgage, and it was only intended to indemnify him in case of loss. Newhall never delivered any stock to Griffiths, or in fact offered any to him. Mr. Newhall testified upon cross-examination : “ I suppose I bought stocks on a margin for him (Griffiths), as he never paid me in full for stock, and I never delivered them.”</p> <p>The understanding was that Mr. Newhall should hold the bond and mortgage until such time as there should be a settlement between Newhall and Griffiths, and Griffiths should pay whatever he might have lost. However, in June, 1880, Mr. Newhall representing that he was in need of money, and wishing to raise some on the mortgage, requested Mr. Griffiths to consent to its being assigned. Mr. Griffiths desiring to assist Mr. Newhall in his difficulties, executed and delivered to John Y. Sears a declaration of no set-off, in which his mother and sister joined him, on June 8th, 1880. At the date of the assignment there was but about $1,600 which Griffiths had lost in his stock speculations.</p> <p>The bond was entered of record as belonging to Sears, April 19th, 1881. The property described in the mortgage was sold at sheriff’s sale, October 3d, 1881, to Harry F. Newhall, for $100, subject to a mortgage of $3,000, and on November 11th, 1881, the judgment was marked to the use of Harry F. New-hall. Mi'. Sears never owned any interest in the bond and mortgage.</p> <p>On October 18th, 1884, a sei. fa. was issued to revive.</p> <p>October 27th, 1884, rule was taken to open or vacate judgment against Elijah E. Griffiths’ proceedings to stay.</p> <p>October 8th, 1884, Newhall agreed to sell the judgment, amounting with interest to $1,976, to E'. J. Records, Records agreeing to pay for the same $1,000 within thirty days, and paid $100 on account on the date of the agreement of the sale, Newhall guaranteeing the full amount of $1,976 was due, and the defendants had no “set-off” to the same.</p> <p>Mr. Records did not know on October 8th, 1884, the day he agreed to buy the judgment from Newhall and paid'$100 on account, that Griffiths had any defence, or the nature of the transaction on account of which it was given. He, however, had full knowledge prior to the time he paid Newhall the balance of the purchase money, namely, $900.</p> <p>On October 28th, 1884, Records sold the judgment to T. Morris Perot.</p> <p>Mr. Perot did not know on October 28th, 1884, the day he bought the judgment from Records, the nature of the transaction by which the judgment was obtained, or that Griffiths had taken a rule to open the judgment on the day prior, namely, October 27th, 1884. He drew his check for $1,400 to W. H. Brown, in payment for the same, and gave it to Records. In the course of a few days Mr. Brown notified Mr. Perot that the rule had been taken, and said he would hold the check until the rule was disposed of. After the rule was discharged Mr. Brown paid $900, the balance due, to Mr. Newhall, and gave the balance to Mr. Records.</p> <p>Upon the trial of the case, the plaintiff offered to prove knowledge by Records and Perot of the existence of the declaration of no set-off from Griffiths to Sears prior to the purchase of the judgment by Records and Perot.</p> <p>Defendant objected, but the objection was overruled and exception allowed. (First assignment of error.)</p> <p>In the general charge the court instructed the jury, inter alia, as follows:</p> <p>[While Newhall could not have recovered, as the transaction was a gambling one, still, if the jury found Records and Perot were bona ficle purchasers, without notice, the defendant was precluded from setting up a defence as against them.] (Second assignment of error.) [That if the jury found that Records was a bona fide purchaser, without notice, and that he paid $100 October 8th, 1884, on account of the purchase of the judgment, and the balance, $900, after he had notice, that he took the judgment freed from any equities which the defendant might have had.] (Third assignment of error.) [If the jury found Perot was a bona fide purchaser, without notice, and gave his check in payment for the same to Records, drawn October 28th, 1884, to William H. Brown, which was held by Mr. Brown (with the knowledge of Mr. Perot, who was notified of the proceedings), until after the rule to open judgment was discharged and then cashed, that it would not defeat his (Perot’s) equities.] (Fourth assignment of error.)</p> <p>Verdict for the plaintiff in the sum of $2,376.57 and thereupon judgment, whereupon the defendant took this writ, assigning for error the admission of evidence and those portions of the charge included within brackets as above set out.</p>

<p>1. The question in expounding a will, is not what the testator meant, hut what is the meaning of his words.</p> <p>2. A testator gave and bequeathed to A., “son of my sister B., only one sixth of such portion as the law would give to said B., and the remaining five sixths to be divided among my other sisters and brothers or their heirs.” Held (a) that he died testate as to the portion of his estate his sister B. would have taken, had she survived him, under the intestate law, and intestate as to the remainder of his estate ; (5) that as to this remainder, therefore, A took, with the other heirs at law, his proportionate share under the intestate law.</p>

<p>1. Where an insolvent fails in obtaining his discharge as an insolvent • debtor, and voluntarily surrenders himself to the warden of the jail of the county; he complies with the alternative condition of his bond; “that he shall surrender himself to the jail of the county,” and, though the warden refuses to receive him, his bond is void and Iris sureties are discharged.</p> <p>2. The obligee in an insolvent’s bond can not recover in an action thereon by showing that the jurat to the insolvent’s petition was irregular and improper after the bond has been accepted and has answered its purpose.</p>

8, of Philadelphia county: Of January Term, 1886, No. 132. This was an action of trespass on the case brought by Francis F. Biddle and Martha Biddle, parents of Clarence Biddle, to recover damages for the death of their son through the alleged negligence of the defendants. Plea, not guilty.

<p>Appeal from the Orphans’ Court of Luzerne county: Of January Term, 1886, No. 28.</p> <p>Appeal of the widow and heirs of August Stiebens, deceased, from a decree of said court discharging a rule to show cause why the audit of the account of the administrator of the said August Stiebens should not be opened.</p> <p>On November 29th, 1884, the final account of J. W. Eno, administrator of the estate of August Stiebens, was confirmed showing a balance of $649.13 for distribution.</p> <p>On March 10th, 1885, the estate was audited by the court, Rhone, P. J.</p> <p>The following is the adjudication :</p> <p>The audit in this ease came on to be heard in pursuance of due legal notice, and from the evidence adduced, we find the following matters of fact:—</p> <p>1. That the decedent died on. or about April 2, A. D., one thousand eight hundred and eighty-three, intestate, leaving to survive him a widow and children, viz.: Caroline Wilhelmine Stiebens, the widow; Franz Herman Stiebens, a son; Carl Ferdinand, Stiebens, and a daughter, Augusta Batcher, ne& Stiebens, all residents of Prussia, having for their attorney in fact, Rev. S. C. Meckel, of Plymouth, Luzerne county, Pennsylvania.</p> <p>The -fund for distribution, arose from personal estate, and amounts to the sum of six hundred and forty-nine dollars.</p> <p>2. The following bills were presented at the hearing:</p> <p>Mrs. Milton Charles, claim for board and lodging, $246.00</p> <p>Money loaned, February, 1881, .... 35.00</p> <p>Miscellaneous items, ...... 15.25</p> <p>Total, . .'.....$296.25</p> <p>This claim is allowed at three hundred and six dollars, including all interest.</p> <p>We find as a matter of law that after deducting costs and the above claim, the balance should be distributed to the heirs of decedent under the Intestate Laws.</p> <p>Exceptions were filed to that adjudication, which were dismissed.</p> <p>After the audit was closed the widow and heirs presented their petition praying for a review to permit them to contest the claims of Mrs. Charles. A rule was granted them and evidence taken by them to sustain it, from which the following facts appear:</p> <p>August Stiebens was a native of Prussia, without relatives or family in America, and was a common day laborer, residing at Plymouth, Pa. He worked in the mines. In September, 1879, he obtained lodging at the hotel of Mrs. Charles,.but buying for himself and eating in his room most of the time. In April, 1881, he left her house and lodged elsewhere, until his death, April 2, 1883. After his death it was discovered that he had left the sum of $800. It was supposed that he had died without kindred. At the audit, Mrs. Charles, who was the only claimant, presented a claim of $296.25 for board and lodging of decedent, during the entire period, one year and seven months of his sojourn at her house.. For aught that the evidence showed, she allowed him to leave her, without any suggestion of indebtedness or request to pay; and during the two years, which elapsed before his death, she made no effort, by demand, suit, or otherwise, to collect her claim.</p> <p>After the death of Stiebens, Mrs. Charles brought suit against his estate, for board and lodging, before an alderman, and obtained judgment for $296.25. The administrator appealed from this judgment, which appeal is pending in the Common Pleas.</p> <p>The court discharged the rude to grant a review, filing the following opinion August 31st, 1885.</p> <p>This rule is discharged for the reason that the testimony which has been produced against the claim of Mrs. Charles is of such a negative and transitory character, that it does not convince us that her claim is not a just one and under all the circumstances we are satisfied that the sum of $306.00 including all interest is a reasonable allowance.</p> <p>The costs of this proceeding to be paid by the estate.</p> <p>The petitioners thereupon took this appeal, assigning for error, inter alia, the decree of the court denying a review.</p>

199. Assump>sit by John Flanigan against the Pennsylvania Railroad Company to recover for services as ticket agent of said company. Pleas, non-assumpsit, payment with leave, etc. The following are the facts as they appeared on the trial before Woodward, J.: The North and West Branch' Railroad Company completed a railroad from Catawissa to South Wilkesbarre in November^ 1882.

Error .to the Court of Common Pleas of Luzerne county: Of January Term, 1886, No. 832. This was an action on the case by Morris Simoson and Emma O. Simoson, his wife, against Thomas Waddell and J. Frank Walter, doing business as Waddell & Walter, to recover damages for the death of their son, W. T. S. Simoson, caused by the alleged negligence of the said defendants. Plea, not guilty.

137. This was an action on the case by M. C. Watson against the Township of West Mahanoy to recover damages for the killing of a team of horses and injury to a sleigh and harness belonging to him through the alleged negligence of the defendant in allowing a heap of ashes to be deposited in the highway, which overturned the sleigh to which the horses were hitched, caused them to run away, and in their fright to get upon a railroad track, where they were killed by a moving…

<p>Appeal from the Court of Common Pleas of Schuylkill county, sitting in Equity: Of January Term, 1886, No. 166.</p> <p>This was an appeal by Lewis B. Walker, assignee of Thomas H. Walker, trustee of Thomas H. Schollenberger, from a decree of said court dissolving a preliminary injunction and sustaining a demurrer, and dismissing a bill in equity wherein Lewis B. Walker, assignee of Thomas H. Walker, trustee of Thomas H. Schollenberger, was plaintiff, and Adolph W. Schalck, Elizabeth Heilner and J. Monroe Boyer, sheriff of Schuylkill County, were defendants.</p> <p>The bill alleged substantially:</p> <p>1st. That the plaintiff holds title to certain lands which are advertised to be sold as the property of L. F. Whitney, by the sheriff of Schuylkill County, on July 3d, 1885, at the suit of Elizabeth Heilner, which are there described by metes and bounds.</p> <p>2d. That said real estate had been held in trust by L. F. Whitney, deceased, for Thomas H. Sehollenberger.</p> <p>8d. Thomas H. Sehollenberger assigned his interest to Thomas H. Walker.</p> <p>4th. That Thomas H. Walker assigned to Lewis B. Walker, party hereto.</p> <p>5th. That L. F. Whitney devised, inter alia, the legal title to this property to Hannah Whitney, his wife.</p> <p>6th. That Hannah Whitney conveyed the legal title to Lewis B. Walker in pursuance of a decree of the Court of Common Pleas of Schuylkill County, on April 6th, 1885.</p> <p>7th. That Elizabeth Heilner obtained a judgment against L. F. Whitney’s estate, and levied upon and is about to sell the aforesaid real estate. That A. W. Schalck, Esq., is acting as her attorney, and is aware of the decree of court referred to in section 6th.</p> <p>8th. That L. F. Whitney left other real estate liable to be sold.</p> <p>9th. That Hannah Whitney holds real estate acquired from L. F. Whitney for $1.</p> <p>10th. That these conveyances were made to Hannah Whitney while L. F. Whitney was indebted to Elizabeth Heilner, and may be sold to pay this judgment.</p> <p>11th. That a sheriff’s sale will cast a cloud upon the title, and render the property unsalable.</p> <p>12th. That there is no adequate remedy at law.</p> <p>The prayer for relief asks that the defendants be restrained from clouding the title by a sheriff’s sale.</p> <p>On filing this bill the court, June 29th, 1885, granted a preliminary-injunction as prayed for.</p> <p>On the hearing of the motion to continue the preliminary injunction, the following facts appeared :</p> <p>Charles Baber and wife, by deed dated December 1st, 1878, conveyed to Lawrence F. Whitney the undivided seventeen twenty-fourths (|-|) of certain lands near Pottsville, containing 45 acres. Consideration, $6,302.90.</p> <p>By another deed, of same date, George B. Strauch conveyed the other seven twenty-fourths (tí) of the same lands to said Whitney. Consideration, $2,595.30.</p> <p>Isaac Lea et al., by deed of December 20th, 1873, eonvejmd the seventeen twenty-fourths (tí) interest in an adjoining tract, containing 34 acres and 40 perches, to said Whitney. Consideration, $3,396.45.</p> <p>By another deed, of same date, George B. Strauch conveyed the other seven twenty-fourths (^) in said lands to Whitney. Consideration, $1,398.53.</p> <p>These deeds were duly executed and acknowledged at or about the time of their dates, and were duly recorded on the 22d day of January, 1875.</p> <p>The deeds were in fee simple, absolute to Lawrence F. Whitney, his heirs and assigns.</p> <p>The lands were assessed in Whitney’s name,-and so continued until after his death, and he paid the taxes thereon.</p> <p>Whitney took the exclusive possession and management of the land, put up improvements, laid out streets, divided the land into town lots, sold off lots and received the purchase money, and executed conveyances therefor, taking all securities for balances due in his own name.</p> <p>• Whitney, at that time, was a prominent broker and banker in Pottsviíle, a man of reputed wealth, and the title to this' land in him went far to increase and strengthen his credit in the community, so that when he died he left unsecured debts amounting to $25,000 (among them Mrs. Elizabeth Heilner in $5,000), besides a number of secured creditors. His estate proved utterly insolvent.</p> <p>Whitney’s alleged declaration of trust is dated April 1st, 1874 (over three months after the execution of said deeds), and was not acknowledged till February 27th, 1875 (a véar later.) The assignment from Schollenberger to Judge Walker is dated May 1st, 1877, two years later still. Neither were recorded until November 21st, 1878, two months and eleven davs after Whitney’s death, which occurred September 10th, 1878.</p> <p>This was the first notice to the world of any trust, or of any interest in Schollenberger or Walker in the premises.</p> <p>In 1881, Lewis B. Walker, Esq., as assignee of Judge Walker, Schollenberger’s first trustee, filed his petition in the Orphans’ Court of Schuylkill County, praying for an order on Mrs. Whitney, the executrix and sole devisee of Lawrence F. Whitney, to convey this land to him. This application was resisted by Mrs. Whitney, and also by the unsecured creditors of Whitney’s estate, who intervened, and the petition was finally dismissed by the Orphans’ Court for want of jurisdiction. On appeal from that decision to the Supreme Court (No. 336, January Term, 1884), the ruling of the court below was affirmed.</p> <p>Counsel for creditors attempted to resist the making of the decree sought for by Mr. Walker,, but this interference was strenuously objected to by Schollenberger and Walker' in the court below; and in the Supreme Court, on the hearing Walker’s appeal, the counsel for the creditors asked to be heard, but his paper book and argument were suppressed by the court at the instance of Mr. Walker and his counsel. So, when Mr. Walker filed his bill in equity in the court below (No. 1, January Term, 1884), against Hannah Whitney, as sole executrix, devisee and legatee of L. F. Whitney, deceased, he did not include the creditors of Whitney’s estate, or make them parties, or take any notice of them.</p> <p>In the meantime suit was brought by Mrs. Heilner against Whitney’s estate (No. 347, September Term, 1882), and judgment was duly obtained, October 14th, 1884, for $6,8Í6.66. Execution was issued November 8th, 1884, and the land condemned, and subsequently advertised to be sold by the sheriff.</p> <p>The preliminary injunction was dissolved.</p> <p>The defendants then filed a demurrer to the plaintiff’s bill, which on hearing was sustained and the plaintiff’s bill dismissed by Pershing, P. J.</p> <p>The plaintiff thereupon took this appeal, assigning for error the decree of the court dissolving the preliminary injunction, and also the decree of the court sustaining the demurrer and dismissing his bill.</p>

<p>Error to the Court of Oyer and Terminer of Schuylkill county. Of January Term, 1886, No. 300.</p> <p>On the 9th of September, 1885, the Grand Jury of Schuylkill county found the following indictment against Charles H. Weiderhold, for 1st, Felonious attempt at arson ; 2d, Attempt at arson.</p> <p>The grand inquest of the Commonwealth of Pennsylvania, inquiring for the county of Schuylkill, upon their respective oaths and affirmations, do present, that Charles H. Weiderhold, late .of the said county, yeoman, on the first day of September, A. D. one thousand eight hundred and eighty-five, at the county aforesaid, and within the jurisdiction of this court, with force and arms, &c., did feloniously, unlawfully, wilfully and maliciously attempt to set fire to, with intent to burn a certain barn or stable that is parcel and belongs to a dwelling house then and there situate, the same being then and there the property of Samuel Morgan, and being of the value of $5,000, and in such attempt did then and there place a quantity of combustible materials within the said barn or stable building, and then and there set fire to said combustible materials, with the intent to burn the aforesaid barn or stable building, but the said Charles Weiderhold did then and there fail in the perpetration of said offence so as aforesaid attempted to be .perpetrated by him.</p> <p>And the grand inquest aforesaid, upon their respective oaths and affirmations aforesaid, do further present, that the said Charles H. Weiderhold, late of the said county, yeoman, on the first day of September, A. D. one thousand eight hundred and eighty-five, at the county aforesaid, and within the jurisdiction of this court, with force and arms, &e., did unlawfully, wilfully and maliciously attempt to set fire to, with intent to burn, a certain barn or stable that is parcel and belongs to a dwelling house then and there situate, the same be ing then and there the property of Samuel Morgan, and being of the value of $5,000, and in such attempt did then and there place a quantity of combustible materials within the said barn or stable building, and then and there set fire to said combustible materials, with the intent to burn the aforesaid barn or stable building, but the said Charles' H. Weiderhold did then and there fail in the perpetration of said offence so as aforesaid attempted to be perpetrated by him, contrary to the form of the'Act of the General Assembly in such ease made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.</p> <p>To this he pleaded riot guilty. The jury found him not guilty on the first count; but guilty o.n the second count, and recommended him to the mercy of the court. The defendant moved in arrest of judgment and for a new trial. The motion for a new trial was overruled; but the motion in arrest of judgment was sustained. Green J., filing the following opinion:</p> <p>This case was tried some months ago, upon an indictment for arson; containing two counts. It was supposed at the time of the trial, and for a long time subsequent, that the first count was drawn under the 137th section of the Penal Code, Which makes an attempt to set fire to a barn or stable which is parcel of a dwelling house, or belonging or adjoining thereto,</p> <p>“ felonious ” arson; and that the second count was drawn under the 138th section, which makes an attempt to bum a barn or stable which is not parcel of a- dwelling house a mere misdemeanor. In the charge of the court to the jury, the distinction between the two offences, as laid down in the two sections, was carefully explained. The jury, taking a very charitable view of the case, acquitted the defendant on the first count and convicted him on the second count, with a recommendation to the mercy of the court. A motion has been made in arrest, and for a new trial, and seven reasons were filed to sustain the same. It is needless to review these reasons. We think them clearly insufficient to require the granting of anew trial, and shall, therefore, dismiss them without any further remark. But a grave objection to the correctness of the verdict has arisen since the reasons for a new trial were filed. It is now discovered that the second count of the indictment, on which the defendant was convicted, is not drawn on the 138th section of the Code, but that it is drawn on the 137 th section, and is an exact repetition of the first count, except that the offence is not set forth as having been done “feloniously.” The effect of this is, that in the first count the offence is charged as a felony, and in the second the same offence is charged as a simple misdemeanor. But this would be incongruous. The law makes the offence, as described in the indictment, a felony, and yet the indictment, as framed, would give a license to the jury to disregard the law and convict of a mere misdemeanor, which they would have no right to do. It is evident that the second count is entirely superfluous as charging an offence under the 137th section ; nay, it is worse than that, it is vicious, for if it stood alone and defendant were convicted under it, we should be obliged to arrest the judgment, for the reason that the omission to charge the offence as a felony would vitiate it. It is not necessary to cite authority to show that the omission to charge the act as having been done “feloniously” is fatal, and that there could be no conviction of a felony under it. Can there be a conviction for a misdemeanor ?</p> <p>In the written argument furnished us by the counsel for the Commonwealth, it is said that “the first count was framed to come within the 137th section of the Penal Code; 'the second count to convict upon a misdemeanor for the mere attempt to burn a barn that was a parcel or belonged to a dwelling house, &c.” That is, either to convict of a felony under the statute, or to convict of a misdemeanor at common law, because, at the common law, mere attempts to commit felonies rise to no higher grade of offence than misdemeanor. But this cannot be done in Pennsylvania. Where the statute raises the offence from a lower to a higher grade of crime, the misdemeanor becomes merged, the offence becomes felony, and it must be prosecuted as such. Whar. Cr. Law (old edition), page 34, also page 133; Com. v. Gable, 7 S. and R., 423. If both of these counts could stand together, and the defendant were acquitted upon one and convicted upon the other, how should he be sentenced? Certainly not under the 137th section, for he has been acquitted of that offence. Would we be at liberty to disregard the penalties there set down, and impose punishment according to the course of the common law? Clearly not.</p> <p>But it is further claimed that this conviction on the second count can be sustained under the 138th section of the Code, which makes it a misdemeanor to set fire to a barn which is “not parcel of the dwelling house.” Undoubtedly it could, if the count had been framed under that section. Unfortunately it was not. We must take it as we find it, unless it may be so amended as to be considered as drawn under the 138th section. The thought of the Commonwealth’s counsel, as expressed in his written argument, was that “if the court or jury decided that the barn was not a parcel or belonging to a dwelling house, to so amend the second count, either to strike out the words 'parcel or belonging to a dwelling house,’ or insert the word ‘ not ’ before the words ‘ parcel or belonging to a dwelling house,’ which would have been perfectly proper under our law permitting amendments.”</p> <p>But in the first place it may be answered that the question of amendment cannot arise here, because none was asked for. The case was tried on the indictment as it stood. But in the next place, no amendment of this character could have been made even if asked for during the trial. This is regulated by the 13th section of the Criminal Procedure Act of March 31st, 1860, and authorizes the court to amend in various particulars named, when “ there shall appear to be any' variance between the statement of such indictment and the evidence offered in proof thereof.” All the evidence produced by the Commonwealth went to prove the offence as described in the indictment.</p> <p>The Commonwealth took special care to prove that the stable in question was parcel of or belonging to a dwelling house, and there was no evidence to contradict this. There was, therefore, no such “ variance ” as would have warranted the granting of an amendment, even if it had been asked for.</p> <p>We must, therefore, deal with this count as it stands, and the only question that remains is whether we can throw out, as surplusage, so much of it as describes an offence, under the 137th section, so as to change it into an offence under the 138th section. This question must be determined not by anything extraneous — neither by the evidence in the cause, nor by the charge of the court, nor what we may believe the jury intended by their yerdict.</p> <p>May we then regard the words, “ that parcel and belonging to a dwelling house,” as surplusage? The language of the count accurately describes and sets forth an offence under the 137th section. They are necessary words to the description of the offence. They must, therefore, be regarded as intended for a charge under that section, and cannot be considered as surplusage. The manner in which the offence is charged follows closély the language of the statute, which is a sufficient description of the offence, and we are not, there' fore, at liberty, arbitrarily, to strike out any part of that description in order to make the count conform to a different section of the Code and a different offence. This would be doing violence to the indictment as found, and would not be carrying out the intention of the prosecution in the drawing of the same. It does not appear that there was. any clerical mistake or omission in the drawing of this second count; on the contrary, it seems to have been intentional to draw the second'count in the way it appears. It is obviously defective, and I do not see how it can be cured. This is not such a case as that of Stager v. The Commonwealth, 13 W. N. C., 200, where the indictment set forth an offence under the 138th section, and charged it as having been done “feloniously,” was surplusage, because the description of the offence was the guide, and that only described an offence under the 138th section, which was, therefore, only a misdemeanor. In the present instance we have nothing within the body of the indictment to warrant us in considering any part of the second count as surplusage. The only way seems to be to consider the whole count as surplusage, and to strike it out altogether.</p> <p>This may, perhaps, be considered an unfortunate result, but we must follow the law and the authorities which have been laid down for our guidance, even though the guilty may at times go unpunished. Had the second count been drawn under the 138th section, on had a third count been added under that section, as should have been done, this would have avoided the whole difficulty.</p> <p>I have given a great deal of anxious thought and careful investigation to this case, and have been able to come to no other conclusion than the one indicated, and it is proper to say that this is the unanimous opinion of all the members of this bench, before whom the motion for a new trial and in arrest of judgment was argued.</p> <p>It is, therefore, needless to grant a new trial, and the result is that the motion in arrest of judgment must be made absolute.</p> <p>January 18th, 1886. — Motion in arrest of judgment made absolute.</p> <p>The Commonwealth thereupon took this writ, assigning for error the action of the court in arresting judgment.</p>

308. This was an action brought by Terrence Mohan, as landlord, against James Butler, as tenant, under the Act of April 3d, 1830, before T., D. Brennan, justice of the peace. The justice gave judgment for the plaintiff. The defendant thereupon appealed to the Court of Common Pleas. The transcript of the proceedings before the justice stood as the declaration to which the defendant pleaded non demisit, no rent in arrear.

Arreal from the Orphans’ Court of Montgomery County: Of January Term, 1886, No. 406. Appeal of William Henry Sutton from a decree of said court adjudging and decreeing purpart No. 6 of the real estate of which Lewis Warner died seised, to Gardiner L. Warner on an oral bid in open court in proceedings in partition in said estate. The following is the case as it appeared in the court below.

<p>Error to the Court of Common Pleas of Schuylkill county: Of January Term, 1886, No. 167.</p> <p>This was a writ of quo warranto at the relation of Lewis C. Cassidy, Attorney General of the Commonwealth of Pennsylvania, against John Leonard, commanding him to shoAV by what authority he exercised the office of county commissioner in and for the county of Schuylkill.</p> <p>The cause was tried by Pershing, P. J., Green and Bechtel, A. L., JJ., and a jury. The pleadings were as follows:</p> <p>On July 11th, 1885, the Attorney General filed the following suggestion verified by the affidavit of Charles Hause :</p> <p>Schuylkill County, ss.:</p> <p>Be it remembered, that Lewis C. Cassidy, Attorney General of the Commonwealth of Pennsylvania, who sues for the commonwealth in this behalf, comes here into court, and gives the court to understand and be informed that John Leonard was a candidate for the office of county commissioner for the county of Schuylkill, in the year eighteen hundred and eighty-four, Avhen, under the laws of this commonwealth, it was and became the duty of the electors of said county to elect three county commissioners for the said county, at the general election to be held in and for said county on the fourth day of November, A. D. one thousand eight hundred and eighty-four, to fill the said office of county commissioner for said 'county for the term of three years, commencing the first Monday of January, A. D. 1885. That the said John Leonard was returned as elected at the aforesaid general election held in and for said county of Schuylkill, on the fourth day of November, A. L. one thousand eight hundred and eighty-four, to the office of county commissioner for said county of Schuylkill, and that since the fifth day of January last he has exercised and still does exercise the-franchises, rights, privileges, functions and office, and enjoys the emoluments of the office of county commissioner of the county of'Schuylkill. That while a candidate for. said office he was wilfully and corruptty guilty of bribery, fraud and the wilful violation of the election laws of the commonwealth, in that he at divers times and places during the year of eighteen hundred and eighty-four, and while he was a candidate for the nomination for the office of county commissioner in said county by the republican nominating convention, in violation of the election laws of this commonwealth, and to divers electors in said county did offer and promise money, situations, appointments and offices and other valuable things, and knowingly allowed the same to be done by others for him, for the purpose of securing the assistance of said persons for the election of delegates in his behalf to said convention, and for the purpose of procuring his nomination by said republican convention for the said office of county commissioner. And in that he at divers other times and places during the year eighteen hundred and eighty-four, and while-he was a candidate for the office of county commissioner in said county, in violation of the election laws of the commonwealth, and to divers electors in said county, did offer and promise money, appointments, situations and offices and other valuable things which he, if elected to said office of county commissioner, could and would appoint to and. give to said electors, and did knowingly allow the same to be done by others for him, for the purpose of securing his election to said office of county commissioner of said county. And in that to one, Charles Hause, a qualified elector of said county, he (the said John Leonard), during the year 1884, and while he was a candidate for the nomination and election for county commissioner in said county as aforesaid, did offer, promise and agree to give to him (the said Charles Hause), the appointment of watchman at the court house in said county if he (the said Charles Hause), woirld support him (the said John Leonard), and aid him in securing the nomination and election as such commissioner; and that the said Charles Hause, on the faith of such offer, promise and agreement, traveled through said county and labored hard and successfully in securing the nomination and election of said John Leonard as such commissioner. And in that one, David Evans, a qualified elector of said county, he (the said John Leonard), during the year 1884, and while he was a candidate for the nomination and election for county commissioner in said county as aforesaid, did offer, promise and agree to give to him the. appointment of watchman of the jail of said county, if he (the said David Evans), would support him (the said John Leonard), and aid in securing his nomination and election as such commissioner; and that the said David Evans, on the faith of such offer, promise and agreement, did exert himself among his friends, and did aid in securing the nomination and election of the said John Leonard as such commissioner. And in that to one Nicholas Madara, a qualified elector of said county, he (the said John Leonard), during the year 1884, and while he was a candidate for the nomination and election for county commissioner in said county as aforesaid, did offer, promise and agree to give to him the appointment of collector of county taxes for Norwegian and East Norwegian townships in said county, if he (the said Nicholas Madara), would come into said convention as a delegate and would vote for the said John Leonard for commissioner, and aid in securing his nomination ; and that the said Nicholas Madara, on'the faith of such offer, promise and agreement by said John Leonard to give to him (Nicholas Madara), said tax duplicate, the said Nicholas Madara ran as a delegate to said convention and secured his election as such, and. came into said convention as á delegate and did then and there not only himself vote for the said John Leonard for commissioner, but also exerted himself among his friends to secure the nomination of said John Leonard. And in that to one Edward Henry, a qualified elector of said county, he (the said John Leonard), during the year 1884, and while he was a candidate for the nomination and election for county commissioner in said county as aforesaid' did offer, promise and agree to give to him the appointment of collector of county taxes for said township of Porter in said county, if he (the said Edward Henry), would come to said convention as a delegate from said Porter township and support him (said Leonard), for commissioner ; and that the said Edward Henry, on the faith of such offer, promise and agreement, did secure his election as a delegate to said convention, and did in said convention support and vote for the said John Leonard and aid in securing his nomination. And iii that to one George W. Heffner, Esq., a qualified elector of said county, who had been a rival candidate before said Republican nominating convention for the nomination for commissioner, but failed in. securing such nomination, he (the said John Leonard), during the year 1884, and while he was a candidate for the nomination and election for county commissioner in said county as aforesaid, did, after said convention and before the general election, offer and promise to and agree with the said George W. Heffner to give to 'him the appointment of warden of the jail of said county, if he (the said George W. Heffner), would support him (the said John Leonard), and aid in securing his election as such commissioner. And did at the same time also further offer, promise to and agree with the said George W. Heffner that, as warden of the jail, he (Heffner), could leave his (Heffner’s), farm (the said Heffner being the owner and occupant of a farm in North Manheim township), in charge of his (Heffner’s), son, and that said son could bring the produce of said farm to the jail, and thus secure a good steady market and customer for the produce of his farm at the best market prices; and the said George W. Heffner, on the faith of such offer, promise and agreement, did support the said John Leonard and aid in securing his election as such commissioner. And in that, to divers other persons, qualified electors of said county, the names of whom are to the relator unknown, he (the said John Leonard), at divers other times, while he was a candidate for the office of county commissioner as aforesaid, did offer and promise to give money, appointments, situations and offices and other valuable things, which said appointments, situations and offices and other valuable things were in the power and gift of the commissioners of said county, and did knowingly allow and authorize the same to be done by others for the purpose of securing his said nomination and election to the office of county commissioner of the said county of Schuylkill. And in that he (the said John Leonard), at divers other times, while he was a candidate for said office of county commissioner as aforesaid, furnished money, rewards and other valuable things to Charles Hause, Edward Henry, Nicholas Hadara, and to divers other persons, qualified electors of said county whose names are unknown, to influence their votes respectively, .and also to be used to influence the votes of others in favor of him (the said John Leonard), at said election for the said office of commissioner as aforesaid, and in carrying the said election for him, for other purposes than printing and ■traveling expenses and tire dissemination of information to the public, or for political meetings, demonstrations and conventions, or for any necessary and proper expense expressly authorized by law, but for corrupt and illegal purposes in procuring his .election.</p> <p>And the said John Leonard, while a candidate for said office, made other promises and offered to give to the electors of the said county of Schuylkill money, rewards and other valuable consideraPons for votes at his election ; and did, wilfully and corruptly, use and pa.y money to a large amount, to wit: to the amount of five hundred dollars, to divers, of the electors, whose names are unknown, of said county, for'the purpose of securing and controlling the votes of said electors at the election at which he was a candidate as aforesaid; and the said John Leonard having taken the oath required by the constitution of the State of Pennsylvania, after he had been declared elected to the office of said commissioner, did then and there commit and was guilty of wilful and corrupt perjury, having committed and been guilty of the acts and offences first above alleged and charged, which in said oath, taken as aforesaid, he denied, whereby the said John Leonard has become and is disqualified from holding said office of commissioner of the county of Schuylkill, and since the first Monday of Januaiy, 1885, he has usurped and does usurp on the commonwealth therein, to the great damage and prejudice of the constitution and laws thereof.</p> <p>Whereupon the said relator for the said commonwealth does make suggestion and complaint of the premises, and prays due process of law against the said John Leonard in this behalf to be made, to answer to the said commonwealth, by what warrant he claims to have, use and enjoy the franchises, rights and privileges aforesaid.</p> <p>On filing this suggestion a writ of quo warranto was directed to issue and an order made that the respondent answer, plead or demur to the allegations and charges on or before August 1st, 1885.</p> <p>On August 2d the respondent filed the following answer, vérified by his affidavit:</p> <p>This defendant, now and at all times hereafter saving and reserving unto himself all benefit.and advantage of exception which can or may be had or taken to the many errors, uncertainties and other imperfections iii the suggestion for the said writ of quo warranto contained, for answer thereunto, or unto so much and such parts thereof as this defendant is advised is or are material or necessary for him to make answer, this defendant answering saith:</p> <p>That it is true that this defendant was a candidate for the office of county commissioner for the county of Schuylkill in 1884, and was duly and legally elected a county commissioner for the said count]'- of Schuylkill on November 4th, 1884, for the term of three years, and had a majority of 1676 votes over his defeated competitor; and that he holds, exercises and enjoys said office and its franchises.</p> <p>That it is not true that this defendant was wilfully and corruptedly guilty of bribery, fraud, and the wilful violation of the election laws of the commonwealth while he was a candidate for the nomination for county commissioner in- the year 1884.</p> <p>That it is not true that this defendant offered and promised money, appointments, situations and offices and other valuable things to' divers electors, or to any elector in 1884 while he was a candidate for said office for the purpose of securing his election.</p> <p>That it is not true that this defendant offered, promised or agreed to give to Charles Hause the appointment of watchman at the court house if said Hause would support him, the said Leonard.</p> <p>That it is not true that this defendant offered, promised or agreed to give to David Evans the appointment of watchman of the jail, if said Evans would support him, the said Leonard.</p> <p>That it is not true that this defendant offered, promised or agreed to give to Nicholas Madara the' appointment of collector of county taxes for Norwegian and East Norwegian townships, if said Madara would come as a delegate to the nominating convention and support said Leonard.</p> <p>That it is not true that this defendant offered, promised or agreed to give to Edward Henry the appointment of collector of county taxes for Porter township, if said Henry would come as a delegate to the nominating convention and support him, the said Leonard.</p> <p>That it is not true that this defendant offered, promised or agreed to give to George W. Heffner the appointment of warden of the jail if said Heffner would support said Leonard or aid in securing the election of said Leonard.</p> <p>That it is not true that this defendant offered, promised or agreed that said George W. Heffner could leave his farm in charge of his (Heffner’s) son, and, as warden of the jail, could purchase from his (Heffner’s) son, the farm produce at the best market price as set forth in said suggestion.</p> <p>That it is not true that this defendant furnished money, rewards or other valuable things to Charles Hause, Edward Henry, Nicholas Madara, or any other qualified elector to influence their votes or to be used to influence the votes of others in favor of him, the said Leonard at said election and in carrying the said election for him, the said Leonard, for other purposes than printing and traveling expenses, and the dissemination of information to the public, and for political meetings, demonstrations and conventions, and for such other necessary and proper expenses expressly authorized by law, and not for any corrupt or illegal purposes in procuring his election.</p> <p>That this defendant denies that while a candidate .for the office of county commissioner that he did offer, promise or agree to give any money, appointments, situations or offices or other valuable things to divers or to any qualified elector.of said county or that he did knowingly allow or authorize the' same to be done by others for the purpose of securing his nomination or election to the office of county commissioner of the said county of Schuylkill.</p> <p>And this defendant respectfully submits to this honorable court that he-should not be called on to answer or defend against all such vague, uncertain and indefinite allegations, which charge him with bribery, fraud, and a violation of the election law, without specifying the persons with whom such offences are alleged to have been committed.</p> <p>And this defendant therefore prays the court to quash, all said specifications in said suggestion mentioned which relate to persons not named, unless the commonwealth will furnish him with a bill of particulars naming the persons and specifying the time upon which it relies to sustain the charges set forth in those specifications.</p> <p>That it is not true that this defendant was guilty of, or committed wilful and corrupt perjury in taking the oath required by the constitution of Pennsylvania.</p> <p>And this defendant denies all and all manner of bribery, fraud or wilful violations of the election laws of this commonwealth, wherewith he is bjr the said writ charged, and any other matter, cause or thing in the said suggestion contained material or necessary for this defendant to make answer unto and not herein and hereby well and sufficiently answered, confessed, traversed, avoided or denied, is not true to the knowledge of this defendant.</p> <p>All which matters and things this defendant is ready and willing to aver, maintain and prove as, this honorable court shall direct.</p> <p>Wherefore this defendant prays judgment, and that the office of county commissioner may be adjudged and allowed to him, and humbly prays to be dismissed with his reasonable costs and charges in this behalf most wrongfully sustained.</p> <p>On August 22d, 1885, the Commonwealth filed the following replication:</p> <p>And the said relator, who prosecutes for the Commonwealth in this behalf, having heard the plea of the said John Leonard in manner and form aforesaid, above pleaded in bar to the said suggestion for the said Commonwealth, says that by reason of anything in that plea alleged, the said Commonwealth ought not to be barred from having the said suggestion against the defendant, because protesting that the said plea and the matter therein contained are not sufficient in law to bar the said Commonwealth from having the aforesaid suggestion against the said defendant, to which plea in manner and form above pleaded, the said relator is under no necessity, nor in any way obliged by the law of the land to answer; for replication nevertheless, the said relator says, that the said defendant was not on the said fourth day of November, in said plea mentioned, or at any other time, according to the provision of the said Act of Assembly, duly elected, constituted and appointed county commissioner of the said county of Schuylkill, and that the said John Leonard did not become lawfully authorized and entitled to take upon him to exercise and enjoy said office as county commissioner of the said county of Schuylkill, and the franchises, rights and privileges thereunto belonging and appertaining within the said county. And of this the saidrelator puts himself upon the country, etc.</p> <p>On August 27th the relator filed a rejoinder.</p> <p>The court ordered that the cause be set down for trial for the week beginning September 28th, 1885.</p> <p>The relator presented, inter alia, the following point:</p> <p>. 9. That the Act of June 8th, 1881, P. L. 70, entitled “An Act to prevent bribery and fraud at nominating elections, nominating conventions, returning boards, county or executive committees, and at the election of delegates to nominating conventions in the several counties of this Commonwealth,” is not one of the election laws of this Commonwealth, and the violation of its provisions is not a violation of any of the election laws with which this defendant now stands charged.</p> <p>Answer by Pbushing, P. J. We answer that in the negative. By this the question is very squarely raised. The Legislature felt bound to take action to regulate nominating conventions and prevent fraud there, and you can readily see if a candidate for nomination should resort to bribery, fraud and corruption to get the nomination, and then between the time of the nomination and election conduct himself properly, and jet escape any liability for the corruption in getting the nomination, then it would not correct the evil that the constitution and the Legislature intended should be corrected in order to purify our elections. The primary elections and nominating conventions have become important elements in the politics of this state and the country, and this Act of 1881, which is referred to here, was for the purpose of controlling and regulating those primary elections, the delegate elections as they are called. It provides “ that hereafter if a candidate for any office within this Commonwéalth shall, directly or indirectly, give, offer or promise to give, or procure any other person to give, offer or promise to'give, to any elecfcor'any gift or reward in money, goods or other valuable thing, or any security for the payment or the delivery of money, goods . or other .valuable thing, or any office, emolument or employment on condition, express or implied, that the said elector shall cast, give, retain or withhold his vote, or use his influence at a nominating election or delegate election, or cast, give or substitute another to cast or give, his vote or use his influence at a nominating convention for or against the nomination of any particular candidate for nomination (and so on), is subject to a penalty, and may be sentenced to'pay a fine not exceeding 1300, and be imprisoned for a period' not exceeding three .months.”</p> <p>It was intended to purify the delegate elections, prevent fraudulent means being employed to send delegates to nominate candidates. It was .a great evil, one which the Legislature felt bound .to interfere with. It very often happened that the party who received the most votes was not returned, and men who never were elected were returned as delegates to a county convention, and so there is a punishment' provided .here for any party who accepts any bribe of that kind. This was found still not to be sufficient, and there was further legislation on the subject which has not been called to your attention, which indicates to my mind very clearly that this must be regarded as a part of the election law of the state. It goes to the very foundation of our political system in making nominations and electing men to office. I repeat, that if a man should by corrupt influence, by promise of reward, or in any other way obtain a nomination over honest men who would not resort to such methods, and then, by simply conducting himself properly after that, hold the office without subjecting’himself to punishment for his fraudulent incipiency of the canvass, there would be a great defect in the law. A subsequent -Act passed by the same legislature provides for the duties of judges, inspectors and clerks and other officers of these delegate elections, meetings or caucuses for the purpose of nominating candidates for office of state, city or county. They are required each one to take an oiitli to properly, impartially and faithfully perform their duties. The oath is to be administered by some judicial officer, and it is to be a matter of substance, and not a matter of form. And then if any judge, inspector or clerk shall presume to act at a delegate election without taking that oath, he is liable to a penalty of $200. “If any judge, inspector or clerk or any other officer at such delegate election, shall wilfully disregard or violate the conditions or rules of his party, he is liable to a like penalty. If they shall reject any legal vote or receive an illegal vote, they are subject to the same penalty; shall knowingly receive a vote of a man who is not entitled to vote, or reject the vote of a man who is entitled, they are subject to this penalty. • If any judge, inspector, clerk or other officers of a primary election as aforesaid, shall be guilty of any wilful fraud in the discharge of his duties, by destroying or defacing ballots, adding ballots to the poll, other than those-lawfully voted, by stuffing the ballot box ” — very familiar language in Pennsylvania, — “by false counting, by making false returns, or b]r an]r act or thing whatsoever, the person so offending shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not exceeding $500, or imprisoned not exceeding one year, or both, or either at the discretion of the court. (Act of June 29th, 1881, P. L. 128).</p> <p>These two Acts which I have read to you are to regulate delegate elections. I think they must be regarded as part of the election laws of the state, and a very important part of them. (Tenth assignment of error.)</p> <p>Verplict for the plaintiff and judgment thereon. And it is .further ordered and directed that the defendant, John Leonard, be, and be is hereby ousted from the office of county commissioner, and that he be enjoined from the'exercise and enjoyment of the rights, privileges and franchises of said office, and that the Commonwealth recover her costs from said defendant. Same day injunction issued to enforce the same.</p> <p>The respondent, John Leonard, thereupon took this'writ, assigning for error, inter alia, the answer of the court to his ninth point and the entering of judgment of ouster against him.</p>

<p>Proceedings were instituted in the Court of Quarter Sessions, under the Acts of May 8th, 1876, P. L. 181, and May 3d, 1878, P. L. 41; to free a toll bridge, built by a company incorporated by the Act of February 27th, 1839, P. L. 39, the charter of which provided, that if it were thought proper to purchase said bridge for the purpose of malting it a free bridge, the said company should be obliged to sell the said bridge for such sum as a majority of twelve disinterested men, appointed by the Court 'of Common Pleas, might adjudge the same to_ be worth. Held, (a) that the said provision in the Act of the corporation was not repealed by the Acts of May 8th, 1876, and May 3d, 1878. (&) That the Court of Quarter Sessions had no jurisdiction in the matter.</p>

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term, 1884, No. 166.</p> <p>Ejectment brought by Edward J. Steer against Henrietta Warren and David K. Large, guardian of the estate of Annie Warren, a minor, for a certain lot of land in the City of Philadelphia.</p> <p>Plea, not guilty.</p> <p>The following are the facts of the case as they appeared on the trial before Hare, P. J.</p> <p>The plaintiff claimed, through a deed from Henry Davis and Mary, his wife, executed after the death of William J. Warren. Tlie defendants claimed under William J. Warren, who held by a deed which they alleged Davis and wife had made to him; they also claimed that Mrs. Davis was his trustee under the following circumstances: In 1854, William J. Warren informed Henry Davis, who had married his sister, Mary, that there was some dispute between him and Richard W. Steel, in relation to a lot that was to be sold that night at the Exchange. He requested him to be present at the sale and bid it in, and promised if he would do so be would have the deed made' to bis sister, the wife of Davis, and give it to her. Davis ashed if there was anything wrong about if, and was assured by Warren that there-wás not, and that thus the. present for his sister could be best secured; whereupon he assented, and duly made the purchase. The money was paid b}' Warren, and at his order the deed was made to Mary Davis. Dayis testified that shortly after the deed was made Warren brought it to his house in Camden, laid it upon the bureau, staid several hours, and as he was about to leave said to bis sister that he would take the deed back with him and take care of the property for-her. Mrs. Davis and her husband soon after departed from Camden for Rio Grande, in New Jersey. He stated to them, and to- others afterwards, that his sister owned the lot, that he was collecting’the rents for her, and that he proposed when the rents had Accumulated to use them in paying for a building on the ground, so that she might have something to fall back upon. He had the property duly registered as hers in the Registry Bureau of the Survey Department of Philadelphia, and there was thus secured to her as owner the advantages created by the several Acts of Assembly relating to that department.</p> <p>At the close of July or beginning of August, 1872, Warren visited his sister at her home in New Jersey. His plan then was, instead of erecting a substantial dwelling for her on thé lot, in the place of the frame building which was there; to avail himself of an opportunity to sell the land and give his sister the money. She was quite aged, being now about eighty-four. He discussed the matter with Mrs. Davis and her husband. The former was averse to a change in the arrangement, and the latter declined to act; but the views of all were in accord by the next morning, upon his assurance that the transaction was to'secure the money for Mrs. Davis; and then she and her husband gave him an instrument which cannot be described, since it was lost by Warren on his reaching his home. It may have been a letter of attorney, authorizing a sale. It was not, according to the plaintiff’s proofs, a-deed to Warren in fee simple, but it gave him some personal power, the words, “heirs and assigns,” having been intentionally omitted. The conjecture that this was a letter of attorney flows from the narration of what occurred on the morning referred to. Warren visited two neighbors of his sister, Samuel and Susan Izzard, before breakfast, and told them, in the course of his conversation, that he had come from Philadelphia to obtain a paper from “ Mary Anne,” that he might sell her lot for $3000.. “ He said that he thought he would come down and get the deed, and sell the property and give her the money that he got; the $8000 that he got for it; that it would do her more good than the property.” Shortly after his return to Philadelphia he saw Henry Davis there, and told him that the paper was lost. “ Ho hollowed at me,” said Davis : ‘Henry,’ says he, ‘the deed that I had at home for you, and one other deed, were lost.’ Whether it was so, or not, I know not; but that is what he told me. The deed from Mr. Steel and this deed was together in his pocket, and he hung up his coat in the entry, and when he got up in the morning both deeds were gone, and he says to me, ‘ Henrietta has taken them out.’ ”.....Q. Who had taken them out ?..... “ Henrietta, his woman that he lived with.”.....“He said, ‘Never mind, it will not make any odds; it will only make the other deed the better, the stronger.’ ” Nothing of moment occurred after this till Warren’s death.</p> <p>On the trial, May 19th, 1884, the plaintiff called on the defendants to produce the deed of Steel and wife to Mary Ann Davis, dated February, 18th, 1854, acknowledged but not recorded. Objection was made to the deed being offered in evidence, unless possession under the deed was shown in Mrs. Davis. The plaintiff was then called in his own behalf, and under objection and exception of defendants, he testified that he had been informed by William J. Warren that Mrs. Davis went into possession of the lot after February, 1854; that he, William J. Warren, acted as her agent, because she lived out of Philadelphia. On cross-examination it appeared that’ Mr. Warren was dead, and that the defendants were Mr. Warren’s widow and heir. (First assignment of error.)</p> <p>Defendants then moved to strike his testimony out, which was refused: but subsequently the judge, in his charge to the jury, directed them to disregard this evidence.</p> <p>The deed, Steel to Davis, was then admitted in evidence, under exception.</p> <p>Plaintiff offered a deed from Mary Ann Davis and her husband, Henry Davis, dated May 6th, 1875, to Edward J. Steer, the plaintiff, which was admitted under objection and exception.</p> <p>He also called Samuel Izzard, a neighbor of the Davis’s in New Jersey, who testified, under objection and exception, that he visited Warren’s house but once, and then took a walk with Warren, and, while going along one of the streets of the city of Philadelphia, Warren said to him, while pointing to a frame house: “This house is Mary Ann Davis’s; I bought it and made her a present of it.” He (Warren) further said he got Davis to bid it in for him. But the witness could give no idea when this walk and conversation took place; whether it was fifteen years before or not; be said be could not tell what street the house was on, or anything about it.</p> <p>.After offering the writs in this case plaintiff closed, and defendants moved for a nonsuit, which motion was overruled, and defendants then called witnesses to show that Mr. Warren had owned property adjoining and around the property in question ; had taken possession of this lot; built a frame carpenter shop upon it in 1855; had leased it in his own name ; paid the taxes; exercised all acts of ownership; and had never done anything that indicated that he was acting as agent for. Mary Ann Davis or anybody else until he (lied in 1874. They further called a witness, who testified that, on the day that Warren was buried, Henry Davis and Mary Ann Davis had told him, the witness, that Warren had bought this lot through Davis at the Exchange ; took title in her, Mrs. Davis’s, name; and that when Mrs. Davis was sick, they had made a new deed to him.</p> <p>They also called a witness who had been clerk to Judge Marcy of the Court of Common Pleas of Cape May county, New Jersey, and testified to the signature of Judge Marcy; and his (the witness’) own writing- in the acknowledgment to the deed of 1871; and that the alterations in the acknowledgment had been made at Judge Marcy’s request. After winch defendants offered in evidence the deed of November 3d, 1871, Mary Ann Davis and Henry Davis to Wm. J. Warren, and rested.</p> <p>The plaintiff then called, in rebuttal, Henry Davis, who was objected to as being an incompetent witness. He then put in evidence a deed dated March 31st, 1884, from himself to Davis and wife, releasing them from all liability upon their covenants in their deed to him. The court held Davis a competent witness and permitted him to testify. (Fourth assignment of error.)</p> <p>■Davis testified, under objection and exception, that Warren had declared to him and his wife that the lot in question was a gift from him to Mary Ann Davis, his sister, and that he, Warren, held the premises for her. (Fifth assignment of error.)</p> <p>Davis also under objection and exception denied the execution of the deed, Mary Ann Davis, wife of Henry Davis, to William J. Warren, dated November 3d, 1871, for the lot in -question. (Sixth assignment of error.)</p> <p>The defendants presented, inter alia, the following points :</p> <p>3. If the jury believe that the premises in question were purchased by William J. Warren with his own money in 1854,' and after said purchase he entered into possession and remained in possession until his death in 1874, holding the properfy and premises as his own, the verdict should be for the defendants.</p> <p>9.’ If William J. Warren went into possession of said premises in 1854, and held such possession as his own, openly, notoriously and adversely until his death in September, 1874, and his widow and heir have held the same kind of possession since that time, or until the bringing of this suit, then the verdict should be for the defendant.</p> <p>In answer to these points the court said that such possession as was described in the third point was evidence for the defendants, and if notorious and adverse, as stated in the ninth point, conclusive in his favor, and a defence to the suit. If, however, it was coupled with an admission that the right was in Mrs. Davis, it would not be adverse or constitute a defence, though still evidence for the consideration of the jury. (Eleventh assignment of error.)</p> <p>4. The payment of the purchase money for the said premises, if made by William J. Warren, was all that was needed to vest the ownership of the property in him, and the fact that he had the title put in the name of Mary Ann Davis would not have defeated Warren’s right to possession or his ownership of the premises.</p> <p>Answer. Declined. (Twelfth assignment of error.)</p> <p>5. If William J. Warren paid the purchase money for said premises at the time of the conveyance from Richard-W. Steel in 1854, and he (Warren) entered into possession of the premises, and remained therein until his death, then, although he took the paper title in the name of Mary Ann Davis, still the presumption is that lie intended the property for himself, and in the absence of satisfactory evidence showing any contrary intent on the part of Warren, the verdict should lie for the defendants.</p> <p>Answer. I affirm that proposition, having told you already that if a man pays for land and puts the title in another and holds the deeds and takes the rent, then the presumption is that he is buying for himself and that he is the owner. But, as I have told you, if at the time of doing that he promises that party to whom the title was made that the property shall be his, and the party consents to take it on those terms, and if such language is used as is calculated to convey the idea that the person to whom the paper title was made was the absolute owner, and persons so understood the language, the presumption would not arise. (Thirteenth assignment of error.)</p> <p>10. Under all the evidence in this case the verdict should be for the defendants.</p> <p>Answer. Declined. (Fourteenth assignment of error.)</p> <p>Verdict for the plaintiff and judgment thereon, whereupon the defendants took this writ, assigning for error, inter alia, the admission of evidence and the answer of the court to these points, as above shown.</p>

77. Appeal of John R. Kauffman from the decree of said court distributing the fund arising from, the sheriff’s sale of the real estate of Charles J. Conrad, deceased. The following are the facts in the case as found by the. Auditor, W. I. Greenough, Esq. The money in court is the sum of $91.40, and is. the purchase money, after deducting costs, of a piece,of land sold bjr the sheriff, under and by virtue of said writ of levari facias.