Volume 114 — Pennsylvania State Reports

<p>1. It is not a valid objection to a deposition that the witness in his testimony refers to a contemporaneous paper, book, .or memorandum made by himself, and not in evidence, if the reference be made as a means of refreshing his memory, or as enabling him to speak with accuracy on the subject-matter under investigation.</p> <p>2. A witness, in fixing the date of a given transaction, may refer to a book or diary to refresh his recollection. He may state that the entries of events were made therein at the time of their occurrence, respectively, and that he is enabled thereby to fix with accuracy, the date in question ; but if objected to, he would not be permitted to read the entry in evidence, excepting perhaps, upon cross examination. It follows of course that the book or diary need not be produced for the inspection of the jury.</p> <p>3. It is error to submit to a jury a question of fact, which is conclusive in the case, to be determined upon mere conjecture, there being no evidence from which the fact may be inferred.</p> <p>4. When there is evidence on part of the plaintiff, which, taken alone, would justify an inference of the disputed facts, the question is for the jury, and in civil cases the facts are to be determined by the weight of the evidence.</p>

387. Appeal of Christiana Knauss and Catharine Seip, from the decree of said court, dismissing their appeal from the Register of Wills of Lehigh county, admitting to probate a paper purporting to be the last will and testament of George Probst, late of said county deceased, and refusing their demand for an issue. The facts of the case appear in the opinion of the Court, Schuyler, P. J., of the third judicial district holding a special court.

79. This was an amicable action of debt, wherein Calvin M. Patterson was plaintiff and Charles Vowinckel was defendant, in which the following case stated was filed by the parties. And now, February 20fh, 1886, it is hereby agreed by and between the parties, plaintiff and defendant above named, that the following case be stated for the opinion of the court in the nature of a special verdict.

158. Appeal of H. C. Frick, administrator of the estate of William Baldwin, deceased, from the decree of said court in the case of the petition of George E. Baldwin for revocation of letters of administration granted to him upon the estate of William Baldwin, deceased. The facts of the case appear from the following opinion of the Register of Wills of Fayette county, Chas.

291. Assumpsit brought by J. H. Thomas, trading under the firm name of J. H. Thomas & Sons, against Samuel A. Loose, Charles F. Seaman and Peter M. Shollenberger, trading under the firm name of Loose, Seaman & Co. Plea, non assumpsit with leave, and. issue. The following are the facts of the case as they appeared on the trial beforeHagenman, P. J. The plaintiff was engaged in business in Springfield, Ohio, under the name of J. II. Thomas & Sons.

<p>Error to the Court of Common Pleas of Berks county:' Of January Term 1886, No. 69.</p> <p>This was an action of ejectment brought by Clinton Levan and wife, George H. Seidel and wife, Eva Miller and Mary Miller, against Mary A. Millholland. On petition, the heirs of James Millholland were admitted as defendants, viz.: Harriet A. Hunter, James A. Millholland, Fanny C. Reppher and husband, Henry Millholland, Paul D. Millholland, and John H. and Robert D. Millholland, minors, who have Henry A. Hoff for their guardian. The land in dispute was two lots in the city of Reading. Plea, not guilty. On the trial, before Sassaman, J., the following facts appeared:</p> <p>The parties to the suit claimed title from the same source.' The.plaintiffs in error claimed under the will of Anthony F. Miller, who died in 1863, and devised the house and lot in which he lived, being the premises in dispute in this case, to his sister and his widow for life, and at the death of the survivor, “to the children of Albert Miller, now born, or hereafter to be born, and their heirs in fee.” The sister and the’ widow of Anthony F. Miller are both dead, and the four surviving children of Albert Miller now bring this action to recover the’property.</p> <p>The defendant in error claims under a sheriff’s sale of the property, on a judgment obtained after the death of said Anthony F. Miller, in a suit brought by Solomon Ely, Sen., against his administrator, the widow and devisees.</p> <p>The defendant offered in evidence judgment of Solomon Ely, Sen., v. Jacob Schmucker, administrator cum testamento annexo of A. F. Miller, dec’d, Maria C. Miller, Susan Miller, and the minor children of Albert Miller, to wit: Eva, Susan, William, Ellen and Mary, devisees of said A. F. Miller, dec’d, to be followed by the record of ji fa. and vend. ex.; to be followed b} the sheriff’s deed, conveying the premises in dispute, pursuant to a sale made by the sheriff on the vend.ex., on the 17th of April, 1865, to Benjamin Tyson; to be followed by other conveyances, deducing the title from the grantee in the sheriff’s deed to the defendants.</p> <p>The plaintiff objected.</p> <p>1. That the widow and devisees of Anthony F. Miller were joined as co-defendants with Jacob Schmuker, the administrator, in suit brought bv Solomon Ely, Sen.</p> <p>2. That a rule was entered in the cause, before the appointment of suggestion of a guardian ad litem for the minor children of Albert Miller.</p> <p>3. That the record discloses the fact, that the.summons was served on Francis Bright as guardian of the minor children of Albert Miller, and subsequently discloses the fact that Francis •Bright was suggested as guardian of Eva, Susan, William, Ellen and Mary, the minor children of Albert Miller, after the service of the said summons.</p> <p>4. The record discloses the fact that Francis Bright was not appointed guardian for Eva, Susan, William, Ellen and Mary Miller, the minor children of Albert Miller.</p> <p>5. That there was no service on the next of kin of the minor children of Albert Miller.</p> <p>6. That the return to the ji. fa. discloses the fact that the sheriff did not pursue the personalty, but that he immediately levied on the real estate, as shown by his return.</p> <p>7. That the whole record on its face bears such strong evidence of fraud, as to render the judgment and consequent sale under it void ab initio.</p> <p>8. Irrelevant and immaterial.</p> <p>The Court: — I have no trouble on this question, nor had I at any time, except that in the suit of Ely against Schmucker, administrator, with will annexed of Anthony F. Miller, there was no judgment recovered de bonis, followed with a sci.fa., resulting in a judgment de terris, coupled with the objection that there was no guardian, but upon an inspection of the appearance docket, it appears that the sheriff made service upon Francis Bright, the guardian of the minor children of Albert Miller, which said minor children’s names were made parties to the suit in their several names. This service would be good under the 83d section of the Act of the 13th of June, 1836; and the responsibility of Francis Bright after such service, assuming it to be as the record purports, would be fixed by the 84th section of the same Act. The suit necessarily being impetrated under the 34th section of the Act of the 24th of February, 1834, would be irregular under the decision of Atherton v. Atherton, 2 Barr, 112, inasmuch as the legal representative of the widow and devisees of Anthony F. 'Miller, deceased, were joined in one writ. But the service returned would be notice to a guardian of minor devisees, and if they were in any way injured by the judgment that followed, and the balance of the fund raised by the sale was transmitted by this court into the Orphans’ Court for distribution, upon doctrines of equity and good conscience, the parties for whose benefit the fund was transmitted to the Orphan’s Court would be estopped from setting up the irregularity whereby to defeat the title to the lands in question in the ownership of the purchasers at this remote period. The offer is admitted, and bill sealed for the plaintiff. (First assignment of error.)</p> <p>The plaintiff offered in evidence the account of Jacob Schmucker, administrator e. t. a. of Anthony F. Miller, showing a balance in hand of $6,396.88; also, the Auditor’s Report, in which it is shown that $2,071.78, the balance of the estate, was distributed absolutely to Maria C. Miller and Susan Keely. This for the purpose of showing that there were sufficient assets in the hands of the administrator at the lime of issuing the fi.fa., to satisfj the judgment obtained by Solomon Ely, Sen., against the administrator, widow and devisees of Anthony F. Miller, deceased. The Auditor’s Report is offered for the purpose of showing that the money was distributed to the life tenants, and that not a dollar was invested or remained for the benefit and maintenance of the estate of Anthony F. Miller.</p> <p>Objected to by the defendant, because, though the account may show the administrator, with the will annexed, had sufficient money to have paid this judgment of Solomon Ely, Sen., his right to do so, or the propriety of his doing so, would depend upon his having enough money in his hands to pay all other debts; the executor or administrator was not called upon to pay one debt in full out of the assets which he had, and run the risk of being obliged to pay the other creditors a pro rata distribution out of his own pocket.</p> <p>2. Because the decree of the Orphans’ Court distributing this money can not be reviewed in this court.</p> <p>3. Because, at the time of the said distribution this sheriff’s sale had already been made; the title of Tyson, the defendant’s predecessor, had already been fixed in him, and the disposal of the money subsequently could not divest the rights already vested.</p> <p>4. Because the testimony is generally irrelevant and inadmissible.</p> <p>The Court: The objections are sustained, and a bill sealed for the plaintiff. (Third assignment of error.)</p> <p>The plaintiff proposed to show, by the clerk of the Orphans’ Court, that a personal examination of the records of the Orphans’ Court show that the first and only guardian appointed for Susan, Eva, William, Ella and Mary Miller, the minor children under fourteen years of age of Albert Miller, was made September 22, 1865, on the petition of Albert Miller, the father. This for the purpose of showing that at the time of the bringing of the suit by Solomon Ely, Sen., against the administrator, Avidow and devisees of Anthony F. Miller, the minor children of Albert Miller, who were under fourteen years of age,, were without a guardian.</p> <p>Objected to l>3 the defendant, because the testimony is offered to contradict the facts set forth in the return of the sheriff of the service made of the summons in the action of Solomon Ely, Sen., against the administrator, with the will annexed, and which the defendants have offered in evidence.</p> <p>2. Because it is generally irrelevant and inadmissible.</p> <p>The Court: These objections are sustained; the offer is rejected, and a bill sealed for the plaintiff. (Fourth assignment of error.)</p> <p>In the general charge, the court instructed the jury inter alia, as follows:</p> <p>It appears by the evidence given on the part of the defendant, that Avhen Anthony Miller died he had debts, and that there was a recovery of a judgment against him, of Avhich we held that his heirs had the legal and required notice. That judgment then became a judgment de terms, and upon that the land Avas sold, upon a fi. fa. and vend, ex., by the sheriff, and Benjamin Tyson became the purchaser. That sheriff’s sale divested all the title that Anthony F. Miller had in it, because it was a sale for the payment of his debts by legal process, and that legal process remained unquestioned up to this day. So that the title that Benjamin Tyson got was a good title, against the title that the debtor, Anthony F. Miller, had in liis lifetime. For the title of Anthony F. Miller was divested by a sale for the purpose of paying his debt. There is then nothing left for his devisees, and there being nothing left for them, the title was good in the purchaser at the sheriff’s sale. (Fifth assignment of error.)</p> <p>********.</p> <p>The widow, who is made the defendant here by an arrangement with the children, who are the landlords, is left in possession as a tenant; and here this day the landlords have filed a petition, and have been allowed by this eourt to be joined with Mary Millholland, the tenant in possession, so that all those who have any right to the title, on the part of the defendant here, are of record. Their title is a stronger title in the law than the title set up by the plaintiff, which in law at present would amount to no title; and their title amounting to nothing, they could not recover under the rulings that we have been obliged to make. Your simple duty, therefore, gentlemen, is to render a verdict generally in favor of the defendants. (Sixth assignment of ei’ror.)</p> <p>Verdict for the defendants and judgment thereon, whereupon the plaintiff "took this writ and. filed inter alia, the above assignment of error.</p>

<p>1. Under the Act of April 9th, 1872, and its supplement of June 12th, 1878, the claims for wages of mechanics, laborers and others, employed in or about mines, manufactories or other business, are preferred to claims for rent of any of said mines, manufactories or other real estate held under lease, where the lessee or lessees are the parties employing the said mechanics, laborers and others.</p> <p>2. The notice of the value and amount of the claim for wages required by said supplement of Juno 12th, 1878, to be given to the landlord or his bailiff is properly given to the sheriff in case of a sheriff’s sale.</p> <p>3. Where a landlord receives accepted drafts as satisfaction of rent and gives receipts acknowledging the payment of said rent he loses his right, under the Act of June 16th, 1836, to be preferred in his claim even if said drafts were never paid.</p> <p>4. Labor claims for wages under the Act of April 9th, 1872, and its supplement of June 12th, 1878, may be sold and assigned, and the assignees are thus invested with all the rights the labor claimants themselves would have had if their respective claims had not been so sold and assigned.</p>

437. This was a scire facias on a mortgage dated June 1st, 1872 for |9,000 on a farm in Schuylkill county given by Joseph M. Payne, who was the defendant, to Samuel R. Jackson, who was the plaintiff. Pleas — payment with leave. The plaintiff offered in evidence the said mortgage and rested. The defendant denied that he was indebted to the plaintiff on the mortgage in any sum whatever.

275. This was an action of account render brought by Peter S. MeTague against Patrick Rehill for an alleged balance due the plaintiff of 148,819.74 on partnership account, tried under the following written agreement of counsel, drafted by the court at the trial, permitting the jury to find a balance due, for or against plaintiff or defendant, namely: “It is agreed that this action.be tried upon the merits and without regard to the pleadings; that the jury shall determine…

<p>Error to the Court of Common Pleas No. 4, of Philadelphia county: Of January Term 1885, No. 212.</p> <p>This was a scire facias sur municipal claim for paving, filed by the city of Philadelphia to the use of H. and L. Ilorter against the property of Edward Pepper.</p> <p>To it the defendant pleaded the general issue, and specially that the property against which the claim was filed was farm land, and was used as such at the time the work was done, and at the time the pleas were filed ; that it,was so classified for the purpose of taxation ; that all the properties on that street where the paving bad been done was rural property, though part was built upon; that part of the property was still wood or timber land; and that the assessment against all the properties had been made according to the per foot front rule of assessment; that the paving constituted a general public benefit, and was not merely a local improvement; and that the work was done for the use, benefit and behoof of the general public. To these pleas plaintiffs replied expressly admitting the truth thereof, but averring that the property was not exempt because defendant agreed in April, 1874, that said paving should be done under tlie direction of the department of highways, and by reason thereof the contract was made. ,</p> <p>The following is the agreement referred to :</p> <p>We, the undersigned, owners of property fronting on Sixty-third street, from Market street to Haverford avenue, do hereby covenant and agree to and with William A. Frederick, to grade, curb and pave the said street within the points named. He, the said William A. Frederick, is to furnish all labor and material necessary thereto and therefor, and do the work in a satisfactory manner, and under the direction of the department of highways.</p> <p>Defendant rejoined that the agreement referred to was for personal services with one William A. Frederick, and that plaintiffs’ contract was not made by reason thereof, but by virtue of the ordinance of councils only. Plaintiffs surrejoined that nothing in the rejoinder barred a recovery, because by an ordinance of December 3d, 1878, it was provided that all contracts for street paving entered into by the department of highways, under which work was done was thereby ratified and approved. The issue was thus made as to those pleas.</p> <p>The following is the ordinance of December 3d, 1875, referred to:</p> <p>That an ordinance entitled “An ordinance in relation to contracts for street paving,” approved December 31st, 1862, be, and the same is, hereby repealed, and all contracts for paving streets entered into by the department of highways, under which work has been done under resolution or ordinance authorizing the same, be, and are, hereby ratified and approved.</p> <p>Defendant further pleaded that the property was not benefited to the extent of the claim filed, to which plaintiffs replied that it was; that the street was not a public highway, to which plaintiffs replied that it had been dedicated to public use by a former owner; that the ordinances as to the quantity and quality of material had not been substantially complied with, to which plaintiffs replied that they had; and that the work had been done at a time when councils had by ordinance declared that it should not be, and that if it was the contract should be invalid without notice, to which no formal reply was made.</p> <p>The facts as they appeared in the trial are set out in the following opinion of the court filed on discharging a rule for a-new trial.</p> <p>In the year 1874, the owners of property on Sixty-third street, from Market street to Haverford avenue, agreed in writing with William A. Frederick to pave the said street, under the direction of the department of highwaj's, and on January 13th, 1875, Frederick assigned the contract to Hiram and Lafayette Horter, the use plaintiffs. On April 3d, 1875, the councils of the city by ordinance directed the chief commissioner of highways to enter into a contract with a competent paver or pavers for the paving of Sixty-third street, between the points above named, with rubble pavement; and on May 6th, 1875, the contract was awarded to Messrs. Iiorter. This is the usual manner of proceeding to have a street paved in this city. The property owners agree to have the street paved under the directions of the department of highways, an ordinance is passed and the contract awarded. That the agreement is assigned, is unimportant; the property owners want the street paved and the public want a competent paver, all of which was obtained in this case. Testimony was given to show that Frederick was a quarryman and not a paver, that the Horters were skilled pavers, and that the stone used to carry out the contract was furnished by Frederick. The time for doing the work was extended by the Chief Commissioner of Highways to the year 1876, during which year the work was done. The power of the councils to order the paving of the street, the kind of material to be used, and to fix the price therefor, is no longer open to question: City v. Hays, 93 Pa. St. R., 72.</p> <p>To a claim filed against the property of the defendant, he pleaded among other things, that the locality was rural or suburban, and that the paving was a general public improvement, and not a local benefit, and that he ought not to be charged therefore by the foot front rule of assessment. To-this the plaintiffs replied that although the locality was rural, yet it was not exempt from payment of their claim, because the defendant agreed in writing that the paving should be done ; and after some further pleading issue was joined.</p> <p>The first question raised is this: Can the defendant avoid liability for paving in front of his property on the ground that the locality was rural and the work a general public improvement, and not a special benefit to the locality, when he has agreed that it shall be done? Following the judgment of the Supreme Court in Bidwell v. The City of Pittsburg, 85 Pa. St. R., 412, and McKnight v. Same, Id., 273, I held that he was estopped, and ruled out his offers to prove that the property was rural and was not benefited by the paving. The facts were admitted by the replication, and on those facts the law is against the defendant. The agreement was for paving the street, to be done under the directions of the department of highways. It was assigned to the use plaintiffs, and they obtained the contract from the city and did the work. It would be a great injustice to permit the defendant to defeat their claim for payment on an objection of this kind, when he has, by writing, induced them to lay out their money and labor for the improvement of the street in front of his property. The plaintiffs had a right to rely on the writing, and infer that the defendant would not set up this objection to their claim.</p> <p>The next question concerns the dedication of Sixty-third street to public use. It was opened and used, according to the testimony of the witnesses, more than twenty-one years before it was paved in 1876, and at one time there was a plank road on it. The defendant’s deed calls for it as a boundary, and so do other conveyances of propert} on that street made since 1854. Stronger evidence of dedication by matter in pais cannot be had: Schenley v. The Commonwealth, 36 Pa. St., 29 and 62.</p> <p>In view of the fact that the verdict is for the full amount of the claim, I do not see that the defendant was injured by the instruction to the jury, that if they were satisfied that the charge made for the work was greater than the value of it, they could allow the value of the work, and that if the work was done in substantial compliance with the ordinances of councils the plaintiffs could recover. The proof was convincing that the work was well done ; the defendant conceded that the stones were the best of rubble stone which could be obtained ; and the gravel produced in court satisfied the jury that it came up to the standard. Numerous witnesses owning property on that street testified that the paving was a good piece of work, that it had lasted eight years without requiring repairs ; and it was not without great effect that the plaintiffs showed that forty-three out of forty-six owners of property on the line of that street paid their bills without suit. ' : ></p> <p>When the jury returned to render their verdict, the foreman, in response to the usual questions, said that they found for the plaintiffs, and when asked for the amount of the damages, replied, “ the full amount of the claim,” and when asked for the amount in figures, he said $1,558.59. Noticing that the jurors were looking about at each other in an uneasy manner, I asked the foreman to send up the paper which he had in his hands. On examining it I could not find the figures on it which the foreman had given. It had on it the figures $1,658.59, being the principal of the plaintiff’s claim, but the figure 6 was written so that it resembled the figure 5. The jury were yet together ; they had not yet been discharged. I told them to look over the paper again and say whether we had the proper amount of the verdict. They again consulted in the court room, and then the foreman said that they found for the plaintiffs and assessed the damages at $2,470.98, principal and interest. It will be noticed that the jury had not been discharged nor separated ; the first rendering of the verdict by the foreman was self-contradictory and manifestly incorrect; the verdict was for the full amount of the claim, and yet the figures given were less than the principal of the claim; it was a plain mistake. Courts have the right to correct such plain mistakes on the instant, before they have taken effect, without the delay and expense of a new trial, provided the jury have not yet been discharged. This is a discretion which is left to the trial court, and unless in case of a flagrant exercise of it, the Supreme Court will not review it: Reitenbaugh v. Ludwick, 31 Pa. St., 141. (Last six assignments of error.)</p> <p>During the consideration of the ordinance of April 3d, 1875, to provide for said paving, the following protests by the defendant et al. were presented against its passage :</p> <p>“ That we consider it premature and inexpedient to have the said street paved at this time. There is very little travel now (since the paving of Market street to the city line), on Sixty-third street, except light driving. It is a wide avenue, with double rows of trees on each side, and is a beautiful drive for light vehicles or pleasure carriages. We consider that the paving of it, especially with rubble pavement, would ruin it as a pleasure drive. There is no necessity for it, and at this time, when property cannot be sold, it would cause a very heavy and needless expense to the property owners along it, many of whom have but recently built upon it, and are not now prepared for the additional heavy outlay which the paving would put upon them.</p> <p>“We, the undersigned owners and residents on Sixty-third street between Market street and Haverford avenue, having signed a remonstrance against the paving of said Sixty-third street at the present time, and having produced the signatures of owners on said Sixty-third street, representing a majority of the feet fronting thereon, hereby protest against the said paving until we, the said owners, are prepared to have it done, and most emphatically enter our protest against paving it with rubble pavement at any time. We, therefore, respectfully inform your honorable bodies that we are not prepared to have it done, and enter this our protest against it.”</p> <p>The following notice was also served on the contractor by the defendant et al.:</p> <p>. “ West Philadelphia, September 4th, 1875.</p> <p>“ Mr. Lafayette Horter :</p> <p>'■'■Bear Sir: — We, property owners on Bloekley avenue, or Sixty-third street, have been informed that you are about to curb and pave the said street from Market street to Haverford avenue. Now, in behalf of ourselves and other property owners fronting on the said street, we protest against the work being done, and warn you that if you proceed it will be at your own risk; because a majority of the property owners have protested against it, and because Blockley avenue is private property, it never having been dedicated to public use or taken by any lawful proceedings as and for a public highway.”</p> <p>During the trial, the defendant’s witness being on the stand, the court excluded as irrelevant the following questions :</p> <p>Please state what occurred between you, as attorney for Edward Pepper and William A. Frederick, in relation to this paper (the agreement between the property owners and Mr. Frederick), at the time of the signing thereof? (Nineteenth assignment of error.)</p> <p>Please state whether or not there was any condition precedent made, and stated by you when you signed this paper, and if so, what it was? - (Twentieth assignment of error.)</p> <p>Under objection of the defendant the court admitted in evidence the following ordinances:</p> <p>Section 10, of the ordinance of December 23d, 1874, which was as follows: The owners of property desiring to have the streets which shall pass through their property paved, shall apply to councils by petition, to which shall be attached a certificate of the district surveyor that the petitioners are a majority of the owners of property between the points named. After an ordinance shall have been passed for the paving of any street, it shall be the duty of the chief commissioner of highways to award a contract for the same to a practical paver or pavers regularly engaged in such business. (Twenty-second assignment of error.)</p> <p>Ordinance of December 3d, 1878, which was as follows: That an ordinance entitled “An ordinance in relation to contract for street paving,” approved December 31st, 1862, be and the same is hereby repealed, and all contracts for paving streets entered into by the department of highways, under which work has been done under resolution or ordinance authorizing the same, be, and are, hereby ratified and approved. (Twenty-third assignment of error.)</p> <p>The defendant presented, inter alia, the following points for charge:</p> <p>17. Under the pleadings in this case the verdict should be for the defendant. This point I refuse. (Ninth assignment of error.)</p> <p>12. That as the paper signed by the property owners does not provide a method by which the amount tlie3 shall be called upon to pay for said paving shall be determined, there is nothing in this case to prevent their objecting to the present mode of assessment, and therefore, if the jury find that this was rural property, and was assessed according to the per foot front rule of assessment, their verdict should be for the defendant. The twelfth point I have answered in the general charge.</p> <p>9. That as neither the commissioner of highways, the councils of the city of Philadelphia, nor the city of Philadelphia herself, could legally make a contract for street paving in a rural district which should provide that the property owners should be charged according to the per foot front rule of assessment, the ordinance of councils of December 3d, 1878, approving prior contracts is of no validity as against the defence interposed in this case. The ninth point I also refuse. (Eleventh assignment of error.)</p> <p>19. There being no proof that by reason of the signing of the paper by the property owners, the city of Philadelphia, or the highway department, entered into the contract to pave, the verdict should be for the defendant. The nineteenth point I refuse, because it requires the court to inquire into the motives of councils. Their motives are not a subject of inquiry by a court. (Twelfth assignment of error.)</p> <p>20. If the jury believe that the contract to pave was entered into solely by reason of the ordinance of councils, and not by reason of the paper signed by the property owners, their verdict should be for the defendant. The twentieth point I refuse, because the parties having signed the paper, they are estopped from setting up the defence that the property is rural. (Thirteenth assignment of error.)</p> <p>14. If the jury believe that the property owners signing the paper protested against the paving of Sixty-third street, and despite that protest the contract was made and the work done, their verdict should be for the defendant. The fourteenth point I refuse, for the same reason, to wit, for the reason given in refusing the thirteenth point, which reason was as follows : The thirteenth point I refuse because councils may direct streets to be paved without a petition, but in this case there was a petition. (Fifteenth assignment of error.)</p> <p>10. That the plaintiffs cannot claim anj' benefits from the paper signed by the property owners, unless they show that it was assigned to plaintiffs by Mr. Frederick with the knowledge or consent of the defendant. The tenth point I refuse. The paper which the parties signed speaks for itself. It is, you will remember, the paper which the parties signed requesting that the street be paved. It speaks for itself, and it is not alleged nor proved that any stipulation entered into is omitted by fraud, accident or mistake of the parties. If parties put their signature to a writing containing their agreement, they cannot add to it or take from it without proof that they were induced to sign by fraud, overreaching, accident or mistake. That is the reason I rejected the testimony here to show the conversations and circumstances that took place at the time of signing the paper, because those conversations and other things are merged in the paper when it is signed, and there would be no use of signing a paper if the parties were allowed to come into court and contradict it entirely. (Sixteenth assignment of error.)</p> <p>16. If the jury find that the pavement, as laid by the contractors, was not done in substantial compliance with the ordinances of councils, either as to depth of gravel, the quality of the gravel, or the size of the stone, their verdict should be for the defendant. The sixteenth point I refuse. A contractor can recover the value of the work not done in substantial compliance with the ordinance of councils. (Seventeenth assignment of error.) In the general charges the court instructed the jury, inter alia, as follows:</p> <p>The defence is, that the property is rural, that is, that Sixty-third street is in a rural locality, that the paving of the street is a public improvement, not a local improvement, but simply intended for the general welfare of the entire city, and which ought to be charged to the general taxation fund and paid out of the city treasury, and not charged against the adjoining owners. Municipal assessment — that is the more proper term to use — municipal assessments, or claims for paving streets, are a species of taxation. Every property is liable in this city to be taxed once for paving in front of it; and once taxed for the paving it goes free afterwards for. all other expenses in the way of re-paving or paving anew. Keeping the streets in repair is a charge to the city generally, and after a man has once paid for having paving done, if the city repair the street, or if the city entirely re-pave it, she cannot charge it against the owner of the property, but must charge it to the general fund. But every city lot is liable to be assessed once for paving done in front of it. This rule, which authorizes the city to charge the assessment, or to assess the charge against the adjoining lot, does not, however, apply to rural or farm property, and therefore where the city projects an avenue through farm property which is not cut up into compact city lots, nor built upon as city lots, the property is not liable to be charged by the per foot front rule of assessment, to wit, $1.50 a foot. City councils have power to enact that a street shall be paved. That power is vested in councils by law. They shall determine the time when it shall be paved ; [they have a right to determine what kind of a pavement, the material to be used, and they have a right to fix an uniform price to be paid by all the owners]. These are powers vested in the city legislature or councils, and the property owners may petition for paving or ask for another kind of pavement, but where the city authorities elect that a certain kind of pavement shall go down, all disputes as to the kind of pavement are at an end. The power is lodged by the people generally in councils. It is not wise to permit one jury to say what kind of pavement ought to have been put down, and for another jury to select another kind, but it shall be as councils shall select. When councils say that a certain kind of pavement shall be put down, then the adjoining properties become liable, unless the adjoining property is farm or rural property, and then it is not liable to be charged by the per front foot rule of assessment [and the property owner may prove that the property is rural, and therefore not liable, or he may prove that the work was not done at all, or he may prove that the price charged for the paving is more than the value thereof. These are the only defences to a municipal claim]. (Eighteenth assignment of error.)</p> <p>. Now, if this defendant set up as a defence and produced evidence that the property was rural or farm property, you might have some doubt upon that question to solve. However, that question is taken out of case by the pleadings of the parties. [The city — the contractors —have for the sake of narrowing the issue down, admitted in the pleadings that this street is in a rural neighborhood, but they say the defendants are estopped from setting up that defence because they signed a petition for the paving- of the street. Well, gentlemen, if that answer is made out and proven to your satisfaction to be true, it is a legal answer to the objection that the street is rural. Now, Pepper’s signature to the petition for paving is admitted beyond any question whatever, and by all law and all justice he is estopped from setting up the defence that this street is a rural street, and that the paving was not a local benefit merely but a general one. A man cannot blow hot and blow cold. He cannot induce the city to have his street paved and have contractors take the contract and do the work, and all' the time reserve to himself the right to object to paying for the paving because the street is rural. Therefore, when Pepper signed that petition to have the street paved, he estopped himself from setting up the defence that this error.) street was a rural one]. (Fourteenth assignment of</p> <p>The next defence set up by them, is whether the price charged for the paving is greater than the value thereof. Now, gentlemen, upon that point there-has been a great deal of testimony — I do not propose to go over it all in detail. You have had the proof here that there were forty-six owners of property along the street, and of them forty-three paid their bills. Of these owners a good many came before you and testified that the work done, as done, was a good job, and said that it has lasted ever since 1876 without any repairs being done upon it. The defence admitted that the stone is good rubble stone. No defence is made upon that score, and the only defence left is that the gravel used is not good, sharp gravel, and that not enough gravel was used as is required b,y the ordinance. You have had the gravel brought before you and it will go out with you — samples of it. You have had the testimony of witnesses who have examined it in various places. You have the testimony of other witnesses that, upon an average, it was of the depth required by the ordinance, and that the work as done was a good job, and lasted since without repair. Gentlemen, if the work was done by the contractors in substantial compliance with the ordinance of councils, the3 are entitled to recover. Instances here and there of a shallow depth of gravel would not defeat the right, unless they convince 3-ou that the whole work was not of the required depth, or unless the gravel supplied was not such gravel as is required for paving. If you find that there was a substantial compliance with the ordinance of councils, that plaintiffs dug out this street to the required depth, put in good gravel, put down good-stone and did a good job in compliance with the ordinance of councils, they are entitled to recover. [On the contrary, if yum are satisfied that the charge made for that work is greater than the value of the work, ymu may-, in that ease, allow the plaintiffs the value of the work. Upon this point, gentlemen, there is no evidence to show what proportion ought to be allowed on a bill of this kind for the depth of gravel furnished, there having been no estimate given you, and you nnty have some difficulty in finding what sum to allow where the proof is so meagre upon the point.]</p> <p>Therefore, to resume, gentlemen, I say' that Pepper is estopped from setting-up the claim that the property is rural.</p> <p>Verdict for the plaintiff in the sum of $2,470.98, and judgment thereon, whereupon the defendant took this writ, filing the above assignments, of error. The first eight assignments of error were to the dismissal of the defendant’s reasons in arrest of judgment.</p>

77. Ejectment for one half of a lot of ground in the city of Altoona, brought by Mary Ann Cauffman against Elizabeth Pancake. Plea, not guilty. The facts as they appeared on the trial before Dean, P. J., sufficiently appear in the opinion of the Supreme Court. The defendant requested the court to instruct the juiy, inter alia, as follows : 2.

249. This was an action of ejectment brought by N. F. Jones against S. A. Backus to enforce specific performance of articles of agreement executed between them February 9th, 1867, for the sale and conveyance by Jones to Backus of the land described in the writ. The plea of not guilty was entered for the defendant.

<p>Appeal from the Orphans’ Court of Warren county: Of July Term, 1885, No. 74, setting aside a sale of real estate made by order of said court by G. C. James, former guardian of minor children of P. J. Falconer, deceased, to A. W. Grove and J. G. Dale, taken by S. P. Johnson, present guardian of said minor children. The following are the material facts of the ease:</p> <p>In April, 1881, P. J. Falconer, a resident of Warren county, died intestate, seized of several tracts of wild land situate in different parts of the county, inter alia that part of Warrant No. 5234, in Limestone (now Watson) township, lying immediately north of and adjoining the dividing line between Warren and Forest counties — being the land in controversy— which he purchased in 1860, at Treasurer’s sale for arrearage of taxes. The treasurer’s deed therefor describing it as containing 150 acres.</p> <p>P. J. Falconer left surviving him three minor children, of whose persons and estate G. C. James, was, on June 11th, 1881, duly appointed guardian by the OrphansV.Qourt of Warren county. These children were placed in the custody and under the care of Z. H. Eddy, their grandfather, with whom they still live.</p> <p>As Mr. James had no knowledge of the location, character or value of the wild lands belonging to the estate, and as Mr. Eddy was familiar with the same, and an old and experienced surveyor by profession, he was employed and authorized by Mr. James to look after such lands, find purchasers therefor, and negotiate sale thereof, when he, James, would make title thereto through the Orphans’ Court, and receive the purchase money.</p> <p>On March 3d, 1882, W. A. Grove called upon Mr. Eddy to ascertain if the land in controversy was for sale, when Mr. Eddy informed him that it was; that it belonged to the Falconer heirs: that he was their agent for selling the same; that he had surveyed the tract twice; that there were 212 ■ acres and upwards in the. tract, and gave the length of the lines; that the price was $10 an acre, but that he would sell it for $2,000.</p> <p>On April 6th, 1882, Dale and Grove came to Warren to make the purchase, when, for the first time, they met G, C. James, who on the following day, to-wit, 7th of April, had prepared and presented to the Orphans’ Court, a petition for leave to make private sale of the land in controversy to J. G. Dale and W. A. Grove for $2,000 — describing the tract as “ containing two hundred acres, be the same more or less.” Whereupon the court decreed the sale to be made accordingly. On the same day, to-wit, April 7th, return of sale was made by the guardian, which was, on the same day, confirmed absolutely by the court. Neither the petition nor decree of court authorizing the sale, showed how the minors’ title had been acquired, whether “ by descent or last will,” or otherwise; nor that it could be sold “ without injury or prejudice to any trust, charity,” or “ violation of any law,” conferring “ an immunity or exemption from sale or alienation.”</p> <p>On the same day, April 7th, G. C. James, as guardian, executed and delivered to Dale and Grove a deed, conveying the land as described in said petition, and received the purchase money, $2,000, in full.</p> <p>Prior to, and at the time of this sale to Dale and Grove, the guardian had in his possession the treasurer’s deed to P. J. Falconer (which had not been recorded) for the land, and a draft of the same, which he found among Falconer’s papers — both of which call for but 150 acres of land. Neither, of which were shown, nor was mention made of them to Dale or Grove until some time after their purchase.</p> <p>On April 7th, 1882, after receiving their deed from the guardian, Dale and Grove sold and eonvejmd 100 acres of their supposed purchase, subject to survey, to S. E. Brainerd and others, and on the following day, to-wit April 8th, 1882, went upon the land with F. F. Whittiken, a surveyor, for the purpose of having the 100 acres surveyed and set apart for Brainerd and others, when it was discovered by actual survey and measurement upon the ground, that the tract contained but 52 acres and 69 perches.</p> <p>On the 7th day of January, 1884, Dale and Grove presented their petition to the Orphans’ Court, setting out the above fact and praying the court to vacate and set aside its said decree and the said conveyance to them, upon the executing to the heirs of said Falconer a deed re-vesting said land in them, and that their guardian be ordered to refund to them either the whole of said purchase money or a ratable part thereof, and that the court should grant them such other and further relief as is just and equitable.</p> <p>Johnson filed an answer denying any authority in Eddy to contract, sell or make any representations in relation to the land in controvers3, and prayed that 'the petition of,Grove and Dale might be dismissed.</p> <p>The court referred the petition and answer to H. H. Goucher Esq., as Auditor, who after taking testimony and full hearing reported that the decree prayed for should be entered.</p> <p>Johnson filed exceptions to this report which were dismissed by the court, and the decree recommended was thereupon entered, whereupon Johnson took this appeal assigning for error the decree of the court.</p>

Of January Term 1886, No. 220. This was a scire facias sur mortgage wherein the Mutual Life Insurance Company of New York was plaintiff, and Rufus K. Hulett was defendant, with notice to Effie C. Hulett and Rufus K. Hulett, her husband, Alice J. 'Patterson and Walter G. Patterson her husband, and Gilbert E. Hulett, terre tenants.

<p>1. A, a limited partnership mortgaged its buildings and machinery for the sum of $12,000, to B. as trustee for bondholders. On November . 80th, 1882, the mortgaged property was partially destroyed by fire, the loss subsequently being adjusted at $10,669. On December 1st, 1882, A. executed and delivered to B. a deed of assignment for the amount of insurance payable, the surplus if any after paying the bondholders to be returned to A. C., a judgment creditor, issued an attachment execution subsequent to the delivery of the deed of assignment attaching the insurance money and summoning the insurance companies as garnishees. By leave of court they paid the money into court. In an issue framed between B. and C. to determine to whom the insurance money belonged: Held, that the deed of assignment was valid and not intended to hinder, delay or defraud the creditors of A.</p> <p>2. In contemplation of law an instrument within the Recording Act is taken as recorded from the time it is left with the Recorder of Deeds for the purpose of being duly recorded.</p>

<p>1. Creditors of an. incorporated company who have exhausted their remedy at law can, in order to obtain satisfaction of their judgments, proceed in equity against a stockholder to enforce his liability to the company for the amount remaining due upon his subscription although no account is taken of the other indebtedness of the company and the other stockholders are not made parties.</p> <p>2. Where subscriptions to stock in an incorporated company are made upon conditions that a certain amount shall be subscribed and that amount is not subscribed by reason of a small amount of the subseribtions made by married women are void, subscribers for stock subsequent to the subscription of the married women, and with knowledge thereof, cannot set up a failure of said condition in a proceeding in equity against them by creditors of the company to compel the payment of the stock thus subscribed by them, in payment of the company’s debts.</p>

847. Appeal of Joseph Cullmans et al. from the judgment of a Justice of the Peace in favor of James Lindsay, plaintiff in the action. The narr filed contained the common counts with a special count on a contract alleging a loss of one hundred and fifty dollars caused by a re-sale of leaf tobacco. Plea, non assumpsit. The facts as they appeared in the trial before Patterson, J. sufficiently appear in the opinion of the Supreme Court.

It had been argued before the court, Paxson, J., absent, May 26th, 1885: On’ October 5th, 1885. A re-argument was ordered. The attention of counsel ivas especially invited to the consideration of the question whether the defendants can avail themselves of the alleged fraud of Heylman upon Pomeroy to defeat the plaintiff’s recovery. Error to the Court of Common Pleas of Blair county: Of January Term 1884, No. 35.

132. This was a feigned issue, wherein Rebecca J. Patton was plaintiff and Daniel Conn and other creditors of Thomas Patton were defendants. The following are the facts as they appeared on the trial before Barnett, P. J.: Thomas Patton, on February 6th, 1884, being indebted to Daniel Conn and others, the defendants in this ease, gave to Alfred J. Patton, in trust for his wife, Rebecca J. Patton, the plaintiff, his judgment note for $1,695.

445. This was a scire facias sur mechanics’ lien filed by B. R. Buckius against Jacob Griel, Sr., owner, or reputed owner and contractor. The plaintiff filed an affidavit of claim November 10th, 1884. On December 5th, 1884, the following affidavit of defence was filed.

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1885, No. 50.</p> <p>Assumpsit by Rex Weigley against William R. Gunnis, Charles H. Barrett, Albert L. Smyth, trading as Gunnis, Barrett & Co., on the following promissory note : “ $378</p> <p>“Trenton, N. J., February 7th, 1884.</p> <p>“Four months after date I promise to pay to the order of myself three hundred seventy-eight dollars, at First National Bank, Trenton, N. J., without defalcation, value received.</p> <p>“No. due, June 7 — 10. “(Signed) J. J. Laning,</p> <p>(Indorsed) “ Gunnis, Babbett & Co.,</p> <p>“W. W. Weigley,</p> <p>“R. Weigley.</p> <p>The defendant filed an affidavit and two supplemental affidavits of defence, the material parts of which, together with the facts of the case sufficiently appear in the opinion of the Supreme Court.</p> <p>The plaintiff took a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence. This the Court made absolute. The damages were assessed at $884.86 and judgment was thereupon entered, whereupon the defendants took this writ, assigning for error the judgment of the court in making such rule absolute.</p>

489. This was an action of ejectment brought June 4th, 1879, in the name of Edward K. Seibert, Elias Weidman, Levi Sherp, Israel Zartman,… Held: unanimously resolved and agreed to change the said trustees, who agreed and consented to convey and make over all their estate, right, title, trust and interest in the said tract of land andpremises unto Martin Wydeman, George Albert, Leonard Miller, and David Bheler, being the new trustees chosen and elected by the Lutheran…

Appeal of Enos Shipe, administrator of David Shipe, deceased, from the decree of the Orphans’ Court of Nortimmberland county: confirming the Auditor’s report, making distribm tion of the funds in the hands of the administrator, as shown by his partial account of July Term, 1885, No. 59.

<p>1. It is error for the Court to direct a verdict for the defendant if there he anything in the testimony admitted or in the offers of evidence rejected, that would have presented a material question of fact for the jury; but it is not error, if the plaintiff’s case as exhibited by the testimony and the rejected offers of evidence be fatally deficient, either in the requisite kind or degree of proof.</p> <p>2. A., not indebted nor about to embark in a hazardous business, confessed judgment to B., to be held by him and used only in case of the financial embarrassment of A., to make sale of A.’s real estate at sheriff’s sale for the benefit of A.’s wife, A. became financially embarrassed. B. sold A’s real estate at sheriff’s sale on this judgment, and became the purchaser; he afterward sold it to C. In an action by A. and wife, in right of wife against B., to recover the amount of the purchase money paid him by C. Held, that there could not be a recovery, for the arrangement between A. and B. was a device to hinder, delay and defraud the creditors, which A. could not set up to defeat the claim of B.</p>

136. Assumpsit by Michael L. Huver, assignee of Henry Shenk and wife, against Lancaster County National Bank. Pleas, non assumpsit, payment with leave.

Appeal of Annie L. Lowry, trustee under the will of Mary Lane Davidson, deceased, for Richard A. Carden, Jr., from the decree of said court disallowing her credit claimed in her account for a mortgage-and two ground rent deeds, in which it was alleged by her and denied by Richard A. Carden, Jr., the appellee, that she had invested the trust funds under the will.

49, Philadelphia county: Of January Term 1885, No. 59. Assumpsit by Alexander Boyd, against Edward P. Whelen to recover $1,000 and interest on the same, being the balance which he alleged was due him for plastering twelve houses. Pleas non assumpsit, payment, set-off with leave.

114. This was an action of trespass on the case brought by Jeffrey Fanning and wife against The Pottstown Iron Company, to recover damages sustained by them by the loss of their son, whom they alleged was killed through the negligence of the defendant. Plea, not guilty.

144. Case by Luther L. Lotz against the city of Altoona to recover damages alleged to have been sustained by the plaintiff by reason of the negligence of the defendant in neglecting to provide and keep good and sufficient sidewalks in the corporate limits of said city. Plea, not guilty.

No. 6. Debt by Thomas J. Nill and E. J. Nill his wife, in right of wife against The Laneanshire Insurance Company to recover the amount of a policy of lire insurance issued by said company on a woollen mill of the plaintiff. Pleas nil debet, payment, non est factum. The following are the facts of the case as they appeared on the trial. In 1881, and prior thereto, Mrs. Nill owned a life estate in a woollen mill situated near Chambersburg, Pennsylvania.

<p>1. A local corporation which contributes only its own local right of traffic to a system of through traffic by means of contract arrangements with other local companies cannot for that reason be permitted to exercise corporate franchise within a foreign jurisdiction free of such burdens as may be imposed by such foreign jurisdiction upon the theory that it is engaged in inter-state commerce.</p> <p>2. The office license tax imposed upon foreign colorations having offices or places of business within the commonwealth by the IGth section of the Act of June 7th, 1879, P. L., 120, is not a tax upon the business or property of the corporation, and when imposed upon a foreign railroad company it is not in conflict with the commercial clause of the Federal Constitution, Art. I, section 8, clause J.</p>

Ekbok. to the Court of Quarter Sessions of the Peace of Dauphin county: Of May Term 1886, No 18. On July 10th, 1885, W. L. Powell, a merchant of the city of Harrisburg, was arrested for a violation of the Act of 21st May, 1885, P. L., 1885, p. 22, entitled “ An act for the protection of the public health, and to prevent adulteration of dairy products, and fraud in the sale thereof.” The following is the first section of said Act: Section 1.

153. This was an indictment against William Josiah McMeen for the murder of his wife, Nancy McMeen. The indictment was found in the Court of Quarter Sessions of the Peace of said county and after the trial it was certified into the Court of Oyer and Terminer of said county as of the date the indictment was found.

192. This was a proceeding instituted by Henry R. Davis against the Titusville and Oil City Railway Co., under tlie Act of 1849, to recover damages for land taken by said company for railroad purposes. Upon petition viewers were appointed who made report. From this report Davis appealed. On motion, the court directed that the issue be tried by a jury in the form of an action of trespass, Davis being the plaintiff and the railway company the defendant. Plea not guilty.

197. This was an action of debt brought by Daniel E. Brenneman. and William Brenneman, executors of the last will of Daniel Brenneman, deceased, against the First National Bank of Clarion, Pa. The following facts appear from the affidavit of claim, and from the affidavit of defence filed in this case.

37. This was an action of trespass on the case brought by W.‘ H. H. Jackson against the Oil City and Petroleum Bridge Company, to recover damages for the death of his son, which he alleged was caused by the negligence of the defendant in not providing and maintaining a safe passage-way for the use of pedestrians. Plea, not guilty.- The facts, as they appeared on the trial of the cause, sufficiently appear in the opinion of the Supreme Court.

127. This was an action of assumpsit brought by Thomas Plackett against J. B. Reynolds, R. Colbert and S. H. Lamberton, partners trading as Reynolds, Lambert & Co. Plea, non assumpsit, payment, set-off with leave.

<p>Error to the Court of Common Pleas of Venango county: Of October Term 1886, No. 61.</p> <p>This was a judgment confessed by J. PI. Osmer, Esq., attorney by virtue of a power of attorney in a license bond in favor of the Commonwealth against Nathan Brown, Peter Curry, S. Kreis and Michael Neidle for the sum of two thousand dollars, the penaltj of said bond with the damages assessed at the sum of two hundred dollars.</p> <p>On motion the court granted a rule to show cause why the judgment should not be stricken off for reasons apparent of record, and also to show cause why a rvritof fieri facias issued upon said judgment should not be stricken off. This rule the court discharged, which was assigned for error.</p> <p>The following are the facts of the case as they appeared before the court.</p> <p>Nathan Brown, one of the defendants below, made an application for an innkeeper’s license to the Court of Quarter Sessions of Venango county, Pennsylvania, to be held the fourth Monday of Januaiy, 1884, to keep an inn or public house for the entertainment of strangers and travelers in a house situate in Emlenton county and state aforesaid, and in pursuance of that business to sell intoxicating liquors as a beverage, as regulated by the various Acts of Assembly. At the time he made the application he filed therewith his bond of indemnhy in the penal sum of two thousand dollars, Peter Curry, S. Kreis and Michael Neidle, the co-defendants, signing the bond as sureties.</p> <p>The following are the conditions of the bond: ■</p> <p>Now the condition of the above obligation is such that if the above bounden Nathan Brown shall pay all damages which may be recovered in any action which may be instituted against him under the provisions of an Act of the General Assembly of the Commonwealth of Pennsylvania, entitled, “An Act to repeal an Act to permit the voters of this Commonwealth to vote every three years on the question of granting license to sell intoxicating liquors, and to restrain and regulate the sale of the same,” approved the 12th day of April, A. x>. 1875, and shall pay all costs, fines and penalties which may be imposed upon him in any indictment for violating said Act, or any other law of this Commonwealth relating to selling or furnishing intoxicating drinks; or if the above bounden Nathan Brown do Avell and faithfully observe and keep inviolate all the laws of said CommonAvealth in reference to the business aforesaid, for and during the period of such license, then the above obligation to be void, else to be and remain in full force and virtue.</p> <p>The license was granted, he paid the license fee and duly took out his license.</p> <p>At the August Term of the Court of Quarter Sessions next ensuing the granting of the license, he was indicted for selling liquor on Sunday. At the ensuing November sessions of said court he pleaded guilty to this indictment, and thereupon was sentenced to pay a fine of two hundred dollars and the cost of prosecution, or in default to undergo an imprisonment in the county jail for a period not exceeding ninety days. The defendant Avent to jail, and at the expiration of his term of imprisonment was discharged as an insolvent. He paid the costs but did not pay the fine.</p> <p>To collect this fine the judgment Avas confessed and the fieri facias issued as above shown. On the discharge of the rule to strike off the judgment and the execution, the defendants took this Avrit assigning for error the action of the court in discharging said rule.</p>

271. This was an action of debt brought by the Monongahela College against Stephenson Garard, September 4th, 1885. Plea, payment, with leave.

180. This was a quo zvarranto issued at the relation of Lewis C. Cassidy, Attorney General of the Commonwealth against the New York, Lake Erie and Western Railroad Company with notice to the Northwestern Mining and Exchange Company to show by what warrant they and each of them held some four thousand acres of coal land in Jefferson county, and to escheat the same to the state. The facts of the case are sufficiently shown in the opinion of the Supreme Court.

220. This was an appeal of Elizabeth K. Gallagher, Maggie M. Gallagher, Bella C. Gallagher, and James H. Gallagher, (byr his guardian, Maggie M. Gallagher), widow and heirs of Thomas F. Gallagher deceased, from the decree of the Court of Common Pleas, of Westmoreland county, confirming the report of the Auditor in the distribution of the fund in the hands of the assignee of Geo. Gallagher.

<p>Error to the Court of Common Pleas of Armstrong county: Of October Term 1886, No. 2.</p> <p>This was an action of assumpsit brought by J. H. Truby, who afterward made an assignment to Jacob Hobougb for the benefit of his creditors, against James Murphy, upon an alleged promise to pay the amount of his note discharged by a discharge in bankruptcy. Pleas, non assumpsit. Non assumpsit infra sex annos.</p> <p>The facts as they appeared on the trial before Neale, P. J., sufficiently appear in the opinion of the Supreme Court.</p> <p>After the plaintiff had closed his case the defendant moved for a compulsory nonsuit which was granted. The same day the plaintiff moved to take off the compulsory nonsuit which motion was overruled by the court.</p> <p>The plaintiff thereupon took this writ, assigning for error the refusal of the court to take off the compulsory nonsuit.</p>

<p>1. In a proceeding to incorporate a borough the certificate of the grand jury should set forth substantially, that after a full investigation of the case the jurors found, that the conditions prescribed by law have been complied with, and that they believe it is oxiiedient to grant the prayer of the petitioners. A certificate, “Approved,” simply, is notin conformity with the requirements of the Act of April 1st, 1834 (P. L., 1G3).</p> <p>2. It need not appear in the petition praying for the incorporation of a borough, that it was signed hy the petitioners within three months immediately preceding its presentation. The record, however, must show affirmatively that the requirement of the Act of June 2d, 1871 (P. L., 283,) has been complied with. If, however, the petition was signed as required by the Act that fact can be shown and he made a matter of record at any time before final decree.</p>

87. This was an action of ejectment for seventy acres of land situate in Mercer county, brought by Mary J. Curry against James B. Curry. Plea, not guilty. On the triai before McMichael, P. J., the following facts appeared. It was admitted that the title to the land described in the writ was in William Curry prior to April 17th, 1875.

<p>Error to the Court of Oyer and. Terminer of Mercer county : Of October Term, 1886, No. 223.</p> <p>Indictment for manslaughter found against James W. Hi-lands.</p> <p>The following are the facts of the case, as they appeared before Mehard, P. J.:—</p> <p>The defendant in this case was tried at No. 1, March Term, 1885, in the Court of Oyer and Terminer of Mercer county, Pa., and convicted of murder in the first degree and sentenced to be hung. A writ of error was taken to the Supreme Court at No. 89, October and November Term, 1885, and the action of the court below was reversed, and afterwards the defendant was discharged under this indictment: 1 Amerman, 1.</p> <p>He then was arrested for involuntary manslaughter, and an indictment was found against him for that offence. On the trial a special plea was filed, alleging the former acquittal of the defendant for the crime of murder growing out of the same transaction and on the same state of facts. These facts were admitted by the demurrer, filed by the Commonwealth: to the special plea of defendant, and the court sustained the demurrer in an opinion filed, claiming that the discharge of defendant on the charge of murder would not avail him on the charge of involuntary manslaughter, as this was not included in the former indictment. Afterwards a jury was called, and the defendant was convicted of involuntary manslaughter and sentenced to the Allegheny county workhouse for two years.</p> <p>The following is the special plea filed:—</p> <p>March 8th, 1886, defendant pleads former acquittal of the offence embraced in the indictment in this case, more particularly set forth as follows: — ■</p> <p>That at No. 1, March Term, 1885, in the Court of Oyer and Terminer of Mercer county, Pa., the defendant, James W. Plilands, was indicted for the murder of John Kirch, under the same circumstances and for the same act or acts charged in this indictment. That upon said indictment said defendant was formally arraigned and plead not guilty. That he was tried under said indictment and found guilty by the jury of murder in the first degree. That during said trial, in addition to the general plea, in answer to the arraignment, the said defendant plead former jeopardy, which plea was not sustained by the court. That on said verdict of guilty the court, on the 13th day of April, 1885, sentenced the said James W. Hilands to suffer death by hanging.</p> <p>That a writ of error was taken to the Supreme Court at No. 89, of October and November Term, 1885, and on consideration of the case it was considered that the offence of which the said James W. Hilands was convicted in the court below was a capital offence, and his plea of former jeopardy should have been sustained, and the defendant should have been discharged under said indictment at No. 1 March Term, 1885, as will appear from record in said case.</p> <p>That this was on an acquittal of the offence charged in said indictment at No. 1, March Term, 1885, and all other offences included in same, and that the offence charged in this indictment, under the guise of a misdemeanor, is none other than the offence of which the said defendant was discharged or acquitted at said No. 1, March Term, 1885, and therefore he should not be held for trial under this indictment.</p> <p>The Commonwealth, by the District Attorney, demurred to said special plea, as follows:—</p> <p>Now, March 8th, 1886, the Commonwealth, in answer to the matters and things alleged and pleaded by the defendant, in his special plea filed, being the proceedings and discharge shown by the record at No. 1 of March Term of the Oyer and Terminer Court of this county, says the same is not sufficient in law to bar the prosecution of the defendant on the indictment in this case, and this the Commonwealth is ready to verify by the said record at No. 1, March Term, of the Oyer and Terminer Court, and prays that the same may be inquired of by the court.</p> <p>The court sustained said demurrer for the reasons appearing in the opinion at No. 38, March Term, 1886, in Court of Common Pleas of Mercer county, Pa., as follows:—</p> <p>On the hearing of this case it appeared that the petitioner Avas placed in the custody of the keeper of the jail of Mercer county, being accused of the crime of murder ; that the grand jury found an indictment against him for that crime, on Avhich he was thereafter brought to trial; that a jury Avas regularly impanelled, selected and sworn; that thereafter, and before any further step had been taken in the trial, that jury Avas discharged because of a separation permitted by the court with the consent of the defendant; that a second jury was thereupon impanelled, selected and sworn, but in the meantime the defendant had interposed the plea of “former jeopardy.” This plea was not sustained, but the court proceeded with the trial, and the jury rendered a verdict of guilty of murder in the first degree. Defendant moved in arrest of judgment because of the refusal of the court to sustain the plea of former jeopardy. This motion was refused and judgment given on the verdict. The proceedings were removed to the Supreme Court on writ of error, and the judgment of the lower court Avas reversed on the ground that the plea of former jeopardy ought to have been sustained, and was therefore a bar to further proceedings on the indictment. The order was there made that the record be remitted witli a copy of the opinion for further proceedings in the lower court. Since then an information has been made against the petitioner charging him with the offence of involuntary manslaughter, and he is now in the custody of the keeper of jail of Mercer county, held to answer said charge. It is admitted that the fact of killing or homicide, on which the charge of involuntary manslaughter is based, is the same as that charged in the indictment for murder above referred to, and which was tried at No. 1, of March Term, 1885, in the Court of Oyer and Terminer of Mercer county, Pa.</p> <p>The matter of the petitioner’s discharge on this writ has been argued on both sides with a view to the single question Avliether the result of the trial on the indictment for murder is a bar to the trial of the petitioner for involuntary manslaughter. It is possible that the question of petitioner’s discharge might be determined upon other grounds, but it seems proper to examine the question argued at the hearing and to confine this opinion to that alone.</p> <p>It has been contended on behalf of the petitioner that his situation in regard to the charge of involuntary manslaughter is the same as though, on the indictment for murder, there had been a trial, conviction and pardon; or a trial, conviction and execution. If there had been a lawful conviction on the trial on the indictment'for murder, it needs no argument to show that the petitioner could not thereafter be tried for involuntary manslaughter based upon the same homicide. For a conviction of murder would be a conviction of all the elements essential to that crime. But it seems evident that the situation of the petitioner uow is the same as though his plea of former jeopardy had been sustained by the lower court, on the trial there had. While it is true the plea was not sustained but the trial proceeded to verdict and judgment, it is also true that thereafter all proceedings were without force, and that the verdict and judgment were ineffectual for any purpose. Then, the present situation of the petitioner, without reference to this second charge, is not exactly as it would have been had there been a lawful conviction on the first charge. The most that can be claimed for the result of the former trial is that it lias the same effect as though the petitioner had been acquitted of the charge embraced in that indictment. But even here the analogy does not hold good, so far as special effect is given to an acquittal, for the special reason that it was an adjudication on the merits. Nevertheless, a plea of former jeopardy, if sustained, is an effectual bar to a second prosecution for any offence whereof a conviction could have been had on the former trial. Does its effect extend beyond this point, and so far as to bar a prosecution for any offence which was a part of the crime charged in the first indictment? The word “jeopardy,” as used by our Constitution, plainly means danger of conviction and punishment. A second, jeopardy, then means a danger of a second conviction. Viewing the term, then, with reference to the simple meaning .of the word it would seem that a second prosecution would not be debarred by this plea, unless, under the former indictment, there was danger of conviction of the offence charged in the second.</p> <p>It is plausibly argued on behalf of the petitioner that, as a conviction of the former charge would have been a bar to this new prosecution, so, therefore, an acquittal or discharge of defendant on a plea of former jeopardy has the same effect. This does not follow. The crime of murder is made up of several parts, punishable separately as distinct offences. When there is a conviction of murder, there is necessarily a conviction of all the parts making up that crime. Such conviction, ho wever, can be had only upon proof of all of those parts. If proof of any part fail, there must be an acquittal of that charge. But because all the parts were not proved, it does not follow that no part was proved. An acquittal of that crime, then, is not an adjudication that the accused is not guilty of a lesser offence included in it. Hence it is that upon an acquittal of a charge of murder there can be a conviction of voluntary manslaughter. Why, then, upon the same reasoning can'there not be a subsequent prosecution for a still lesser part of the crime, if a conviction of that part could not have been permitted on the first ? That there can be such second prosecution has always been a doctrine of the common law, and it has more than once been recognized by our Supreme Court as the law of this state.</p> <p>Thus, at common law a felony and a misdemeanor were so incompatible in character, punishments and legal incidents, that they could not be joined in the same indictment. Where the common law rule prevails, there can be no conviction for a misdemeanor on an indictment for a’ felony. Bishop Crim. Law, Vol. 1, page 483, sec. 804. And on the other hand, the doctrine of merger worked an acquittal where, upon trial for a misdemeanor, the proof showed a completed felony. Whart. Crim. Pl. & Pr., sec. 464; Com. v. Parr, 5 W. & S., 345. But in neither case was the acquittal a bar to a subsequent prosecution for the offence disclosed by the evidence. 1 Bishop Cr. Law, secs. 788, 804; 2 Hawkins P. C., Curw. Ed., p. 621; 1 Bishop Cr. Law, sec. 1065; Com. v. Gable, 7 S. & R., 427.</p> <p>While the constitutional provision against a second jeopardy is, in some respects, different from the common law doctrine involved in the plea of autrefois acquit, yet both are founded upon the principle “ that no man shall be placed in peril of legal penalties more than once upon the same accusation.” Whart. Cr. Pl. & Pr., sec. 490. Hence, when called, upon to determine whether the offences be the same, the common law decisions have great weight.</p> <p>In the case of Commonwealth v. Trimmer, 84 Pa. St. R., 69, our Supreme Court have given a test which seems to be, in effect, a solution of the question in hand. It is as follows, viz : “ Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea of autrefois acquit is generally good, but not otherwise.” See Whart. Cr. Pld. & Pr., 8 ed., see. 456; Bishop Cr. Law, 7 ed., see. 1051, et seq.</p> <p>It is not necessary to point out the many and great differences between involuntary manslaughter and murder; and with the above test before us, the only question is whether upon the first indictment there could have been a legal conviction of any offence, had the evidence been only such as is necessary to support this second charge. In other words, can there be a conviction of involuntary manslaughter on an indictment charging murder? This question has been twice before the Supreme Court of this State — once incidentally, to wit: in Commonwealth v. Gable, et al., 7 S. & R., 423, and once directly, to wit: in Walters v. Com., 44 Pa. St. R. 135. In the above cases it was decided that there cannot be a conviction of involuntary manslaughter on an indictment for murder.</p> <p>These cases of Hunter v. Com., 79 Pa. St. R., 503, and Staeger v. Com., 13 W. N. C., 200, have since been decided, but they do not purport to disturb the former decisions, nor do they in effect necessarily reverse them.</p> <p>It is the duty of this court, therefore, to accept the law as laid down in Walters v. Commonwealth, supra; and in view of that decision the conclusion follows, that evidence necessary to support this charge of involuntary manslaughter would not have been sufficient to procure a legal conviction of any offence on the indictment whereof the petitioner has been discharged.</p> <p>Then, it appears that the words of the constitutional provision, the spirit and reason of the rule, the decisions at common law and under the law of this state, all léad to the conclusion that the plea of former jeopardy will not avail where proof of the offence charged in the second prosecution would not have supported a conviction under the former indictment. Adding this to the further conclusion, that upon the trial for murder the petitioner could not have been convicted of involuntary manslaughter, it follows that a discharge from the former indictment is not a bar to this second prosecution. It is not in place to say anything about the evidence adduced on the former trial, or to add to what has already been said about the verdict of the second jury. Neither the evidence nor the verdict have any bearing on the question here considered, for it has been determined that those proceedings were without force.</p> <p>The discharge of the petitioner from the custody of the sheriff is refused.</p> <p>To which ruling of the court in sustaining such demurrer, the defendant excepted, and at his request bill of exceptions sealed. . (Assignment of error.)</p> <p>The defendant thereupon plead not guilty to said indictment.</p> <p>Verdict of guilty, whereupon he was sentenced to undergo an imprisonment in the Allegheny County work house for the term of two years. He thereupon took this writ and assigned for error the judgment of the court in sustaining the demurrer of the Commonwealth as above shown.</p>

113. This was an action of trespass vi et armis de bonis asportatis, brought bjr Dr. E. X. Giebner against William Kile, high sheriff of Mercer county, for levying on and selling, as he alleged, a saw mill of his by virtue of a fi. fa., issued against one W. E. McDonald.

<p>1. A confession of judgment in a cause at issue m the Court of Common Pleas, o-n an appeal from a justice of the peace is conclusive upon the defendant as to the right of the plaintiff to recover other payments on the same contract, in subsequent actions, in which the defence is the same as that made before the justice of the peace in the former action.</p> <p>2. A mutual fire insurance company is impliedly authorized to borrow money to pay its losses and to secure the payment of the same by giving ■ its note.</p> <p>S. A member of a mutual fire insurance company, liable to an assessment to pay fire losses of the company, paid by borrowed money, is liable to an assessment to pay a judgment obtained on the company’s notes given for said borrowed money.</p>

<p>The district in which a poor person having no legal settlement within the Commonwealth first becomes helpless and a lit subject for relief, must provide the same, until the necessity therefor ceases. The fact that he boarded and lodged in another district at the time of the accident which made relief necessary, gives him no settlement there, so as to make that district liable.</p>

<p>Error to the Court of Common Pleas of Mercer county: Of October Term, 1886, No. 122.</p> <p>This was an action in debt brought by James Patterson against W. W. Jonhston, Money Miller and S. P. Johnston to recover damages alleged to have been sustained by him by reason of W. W. Johnston failing to carry out a contract with him in which Money Miller and S. P. Johnston were sureties.</p> <p>On the trial before Mehard, P. J., the defendants made the following offers of evidence which were overruled, exceptions noted, and bills sealed.</p> <p>Defendants propose to show by the witness (W. W. Johnston) for and on behalf of the sureties and for their release that he, the witness, communicated to his bail, S. P. Johnston and Money Miller, the terms of the contract he had made with Mr. Patterson as to the time it was to run; to be followed by evidence that when they came to sign the contracts in the presence of Mr. Patterson, they were yet in blank, and that Mr. Patterson in the presence of the two sureties asked Mr. Johnston, “ Do these men understand our contract? ” and that Mr. Johnston replied, “ Yes, I have told them what it is,” and then Mr. Patterson replied, “We may as well sign them and they can be filled up afterwards,” and that they, thereupon, did sign the contracts in blank and they were filled up after-wards in the absence of the sureties; and further that Money Miller, one of the sureties, can neither read English, nor sign his name in English. (First assignment of error.)</p> <p>The defendants propose to prove by the witness, S. P. Johnston, one of the sureties on the contracts offered in evidence, that on the morning of the 7th day of July, the day the said contracts were signed, his brother William’, who is the principal, the second party to said contracts, came to his place and solicited him to become a surety on the contracts to carry the mail that he had made with James Patterson, at the same time telling him that the time of the contract was to be for one year with the privilege of three; to be followed by testimony of the same witness that in the afternoon of the same day he came with his brother to .the clerk’s office in the courthouse and there met Mr. Patterson, Mr. Money Miller, the other surety, and Mr. Madge and his brother who came with him, and that Mr. Patterson stated that the contracts were not yet ready, or prepared, and that as Mr. Miller was in a hurry to get home, they might be signed in blank, having first asked Mr. Johnston if the sureties (those gentlemen present) understood their contract, and in reply to Mr. Patterson’s question, Mr. William Johnston stated, “Yes, I have told them what our contract is,” and this for the purpose of relieving the sureties from the effect of the contract as it was after-wards filled up. (Second assignment of error.)</p> <p>Defendants propose to prove by the witness, Money Miller, one of the sureties on the contracts offered in evidence, that between ten and eleven o’clock on the morning of the 7th of July, the day the said contracts were signed, William W. Johnston, who is the principal, the second party to said contracts, came to his place and solicited him to become his surety on the contracts to carry the mail that he had made with Mr. James Patterson, at the same time telling him that the time of the contract was to be for one year with the privilege of three; to be followed with testimony of the same witness, that in the afternoon of the same day he came to the clerk’s office in the court-house and there met Mr. Patterson, Mr. S. P. Johnston, the other surety, Mr. W. W. Johnston and Mr. Madge, and that Mr. Patterson stated that the contracts were not yet ready or prepared, and that as Mr. Miller was in a hurry to get home, they might be signed in blank, having first asked Mr. Johnston if the sureties (those gentlemen present) understood their contract, and in reply to Mr. Patterson’s question, Mr. William Johnston stated, “ I have told them what our contract is,’’ and this for the purpose of relieving the sureties from the effect of the contracts, as they were after-wards filled up. (Third assignment of error.)</p> <p>The court charged the jury inter alia as follows, from which the facts of the case sufficiently appear.</p> <p>It seems that in 1884, W. W. Johnston undertook to carry the United States mail upon two routes leading from Cadiz, Ohio, the one to Cambridge and the other to St. Clairsville; that the carrying of the mail had been undertaken by Mr. Patterson, the plaintiff in this case, and he sublet those contracts to W. W. Johnston, one of the defendants. Mr. Johnston entered into writings agreeing to fulfill these contracts for carrying the mail, and bound himself, and gave as sureties in the same obligation the other two defendants, for the sum $3,000 in the two contracts; that is to say, $1,500 each. The condition of the obligation was, substantially, that W. W. Johnston would faithfully fulfill his agreements with the plaintiff, Mr. Patterson. It is not denied that the three defendants signed these writings which have been given in evidence. It is also a conceded fact that in February of 1885, W. W. Johnston ceased to carry the mail, contrary to the stipulations made by him, as set forth in these writings.</p> <p>This makes out for the plaintiff a prima facie case and entitles him to recover a verdict at your hands, unless other matters have been proven in the case which relieve the defendants from their obligation.</p> <p>The defendants assert that they are not bound to pay the plaintiff any part of the damages claimed by him, for the reason that the plaintiff procured the execution of these written contracts by them fraudulently — first, that he deceived them, or deceived W. W. Johnston as to the nature of the roads or routes over which the mail was to be carried, and second because there was inserted in the writings a stipulation materially different from that which was agreed upon by the parties, and that the insertion was made in fraud of the defendants’ rights. The evidence as to the first assertion or matter of defence is to the effect that prior to the time these writings were entered into, Mr. Patterson had represented to Mr. W. W. Johnston that the road from Cadiz to Cambridge was better than the road from Mercer to Sharon, and that the road from Cadiz to St. Clairsville was better than the road from Cadiz to Cambridge.</p> <p>If the plaintiff in this case undertook to give to the defend-; ant, W. W. Johnston, information regarding the routes which were the subject-matter of their contracts, it was his duty faithfully and honestly to state such information as he had. Or if he held himself out as knowing something which he did not know, and stated falsely material facts concerning that matter, that would be fraud of the defendants’ rights.</p> <p>But the defendants in this case undertake to defend against a written contract signed and sealed by them. ' In order to entitle them to this defence on the ground of fraud, they must prove the fraud clearly, precisely and indubitably.</p> <p>[And while the evidence is not disputed by the plaintiff'as to the representations which he did make as to the nature of those roads, the evidence on the behalf of the defendants does not show that material variation between the representations as made and the facts as they existed which we think would entitle us to submit the ease to you upon that branch of the defence. The witnesses on behalf of the defendants have testified as to the character of the road from Cadiz, Ohio, to Cambridge and to St. Clairsville, but thej' have not shown that there is a material difference between the character of those roads and the road between Mercer and Sharon, or that the representation, as made, was made falsely or fraudulently in detriment of the defendants’ rights. Therefore, gentlemen of the jury, you will leave that out of consideration, for you could not base your verdict upon it]. (Fourth assignment of error.)</p> <p>The other branch of the defence is as to whether the reacontract made betwmen these parties was that the defendant W. W. Johnson should take these routes for one .j-ear on the terms agreed upon, with the privilege of three, or whether the contract was as set forth in the writings.</p> <p>On behalf of the defendants you have the testimony of Mr. W. W. Johnson as to what took place between himself and Mr. Patterson in the presence of Mr. Harry in front of the post-office; you have the testimony of Mr. Harry upon that subject, and you also have the testimony of Mr. Money Miller and Mr. W. W. Johnson as to what occurred in the office of Mr. S. H. Miller after the time this suit was brought, and from all of this the defendants ask you to find that the agreement at the post-office was that Wi1 W. Johnson was to take those routes for one year with the privilege of two more years, and that he could give the plaintiff thirty days notice before the expiration of the year» that he did not wish to have them for a longer time, and then be released from his contract.</p> <p>• On the other hand, the plaintiff denies that he made such an agreement at that time or any other time.</p> <p>Your first inquiry will be whether that conversation took place and assumed the form of an agreement between the parties. If it did not, then the plaintiff would be entitled to recover his whole claim in this cáse. If it did, then you must proceed one step farther. [It is conceded that the agreement was not consummated at that time, but that it was consummated in the office of R. G. Madge on the same day but at a subsequent lmur.]</p> <p>* * * * * '* * *</p> <p>Now, it is your duty to recall the evidence of W. W. Johnson, of Money Miller, of S. P. Johnson, of Mr. Patterson and of Mr. Madge and judge of those men as they came before you. First, had they an opportunity of knowing the things they undertook to state? Did they show that they remembered them with that clearness and distinctness which would warrant you in believing that they did remember them ? Did they show that they were stating fairly what they did remember? Was the substance of their story, their manner of telling it and the correspondence of their statements with the other proven facts in the case, as you may find them, such as to lead you to the conclusion that this witness or that witness was telling the truth ?</p> <p>Now, this is a material point in this case, and you should examine all the evidence bearing upon it with great care, and remembering the degree of proof which is required from the defendants to establish the fraud, you then must pass upon the question whether these writings were filled in or were in blank at the time they were signed by these parties. If they were in blank at that time, and if they set forth an agreement for three .years when the agreement actually was for one with the privilege of three,-then the defendants would be entitled to relief from the burden of the two years which they do not elect to take. But, on the- other hand, if you are not satisfied that the agreement was made in the first place for one year with the privilege of three, it would be immaterial whether the writings were filled up or not. [Or if you find that the> writings were filled up when signed by the parties, then it would be immaterial whether the agreement had previously been made or not. For if the defendants failed to acquaint themselves with the true statement of that part of the contract, as contained in the writings, when they had an opportunity to do so and were not prevented from doing so by a trick or artifice of the plaintiff, and the defendant W. W. Johnson acted under that agreement for the length of time he states he did, he must be held and so must his sureties to an absolute waiver of whatever privilege he might have had under the first agreement. There would be no fraud upon the sureties aside from any fraud upon the' principal, for Mr. Patterson had a right to suppose that the principal would protect his sureties by giving them all needed information ; and the privilege which the defendants assert in this ease was one which was peculiar to W. W. Johnson; the sureties had no right to elect one way or the other. The election that they claim to have had was an election to be made by W. W. Johnson, and if he waived it the sureties could not complain.] (Sixth assignment of error.)</p> <p>********</p> <p>The plaintiff has submitted the following request for instruction :</p> <p>“ If the jury find from the evidence that the contracts in suit were filled out before they were signed, as sworn to by it. G. Madge, then they must be taken as contracts for three years, as they are written.”</p> <p>“I have given to you explicit instructions as to the effect of the signing of these papers if they were filled out at the time. They differ slightly from this request. The request is affirmed, as explained in the general charge. (Seventh assignment of error.)</p> <p>Verdict for the plaintiff in the sum of $1,848.12 and judgment thereon, whereupon the defendants took this writ, assigning for error the rejection of their offers of evidence those portions of the charge included within brackets and the-answer of the court to the plaintiff’s point.</p>

235. . This was an indictment for obtaining money by false pretence found by the grand jury of said county against Daniel H. Wallace. The following is the indictment.

<p>Error to the Court of Common Pleas of Cambria county: Of October Term 1886, No. 191.</p> <p>This was an action in debt brought by John B. Baum, to recover from Y. Tonkin the sum of $1,800 alleged to be a balance of purchase money due from him on an undivided interest in a tract of laud sold by the plaintiff to the defendant and one R. C. McCurdy, who afterwards assigned his interest to Hipps & Lloyd by articles of agreement dated May 24th, 1873. By this agreement the plaintiff agreed to sell to the second parties therein a tract of land, containing between ninety and one hundred acres, more or less, situated in Susquehanna township, Cambria county. The consideration was $5,000, in three annual payments, two thousand dollars on or before July 15th, 1873. one thousand dollars on the 1st day of June, 1874, and two thousand dollars on the 1st day of June, 1875, the parties of the second part agreeing not to cut more than two river rafts a year until the land was paid for, or security for the payment of the same was given.</p> <p>On the 19th day of August, 1876, John B. Baum, the plaintiff, Y. Tonkin, the defendant, and Uriah Lloyd, one of the firm of Plipps & Lloyd, and a brother-in-law of the plaintiff, met at the house of the defendant and ascertained the amount due upon the articles of agreement before referred to. By the settlement then, made it appears that Plipps & Lloyd, as assignees of R. C. McCurdy, owed $1,075, and that V. Tonkin owed $1,300. Prior to the date on which the last payment fall due, June 1st, 1875, John B. Baum, the plaintiff, had prepared a deed for the land described in the agreement, which lie had with him ready for delivery when the settlement was made on August 19th, 1876. It was then agreed between the parties that Hipps & Lloyd should give the plaintiff below their note, with V. Tonkin as security, for $1,075, the amount due from them, and that V. Tonkin, the defendant, a mortgage upon his undivided interest for the sum of $1,300, the amount lie still owed on the contract. In pursuance of this arrangement the defendant delivered to the plaintiff a mortgage for his one undivided half interest in the land embraced in the articles of agreement, as security for the payment of one thousand three hundred dollars on the 15th day of July, 1877, with interest, which if duly made would render the conveyance void, and if default was made in the payment of the principal or interest therein mentioned, then John B. Baum was authorized to sell the premises above granted, or so much thereof as would be necessary to satisfy the amount due, with the costs and expenses allowed by law. The mortgage was dated August 19th, 1876, and on the same day the defendant signed the note for $1,075, with Hipps & Lloyd as their security. The plaintiff then delivered the deed. All the payments named in the agreement were then due. By its terms the parties could cut only two rafts of timber in one year. He thus retained the land and timber unless other security was given. The deed was then delivered to Mr. Tonkin, the defendant below, for the grantees therein. The purpose for which the deed was delivered to him was that he could sell the timber remaining upon the land when opportunity offered. This the defendant below soon after did to Merryman & Son, of Williamsport, who cut and removed part of the timber from the land. The note given by Hipps & Lloyd and the defendant was paid to the plaintiff at different times by the defendant with the money received from the sale of the lumber. The mortgage remained unpaid. On March 1st, 1880, the plaintiff had the mortgage recorded. On this a scire facias was issued and judgment obtained, a levari facias issued, the interest of the defendant below in the land sold to John B. Baum.</p> <p>The plaintiff claimed in this action that on the 19th day of August, 1876, when the deed was delivered, the note of Hipps &.Lloyd, and Tonkin, and the mortgage of the defendant, was received by the plaintiff in satisfaction of the purchase money remaining unpaid on the articles of agreement, that V. Tonkin, the defendant, made a parol promise contemporaneous with, and independent of the mortgage, to pay the plaintiff the sum of $1,300. The defendant denies that he made any parol promise whatever to pay the plaintiff the amount for which the mortgage was taken ; that upon his failure to pay the plaintiff the mortgage was to be foreclosed and the land, or so much as was necessary, sold to pay the debt therein named, viz.: $1,300. The plaintiff accepted the interest in the land described in the mortgage owned by the defendant, and that alone as security lor the $1,300, payment to be enforced according to the terms of the paper given by the defendant when the deed was delivered. The defendant claimed that when the plaintiff caused a scire facias to be issued and obtained judgment upon' the mortgage, and sold the land, the plaintiff had exhausted the only security asked for and accepted by him from the defendant when the deed was delivered. To sustain his allegations the plaintiff below offered evidence to prove the parol promise of. the defendant on the 19th day of August, 1876. the defendant having amended his pleading by adding the plea of actio non accrevit infra sex annos, the plaintiff introduced evidence to prove that the defendant renewed his parol promise alleged to have been made on the 19th of August, 1876, on several occasions afterwards and prior to the issuing of the summons in this case on December 6th, 1882. The defendant denied the original parol promise as well as any subsequent renewals or parol promises to pay the $1,300, independent of the mortgage security.</p> <p>The following is the charge of the court, Johnston, P. J.</p> <p>On the 24th day of May, 1873, an article of agreement was made between John B. Baum, the plaintiff, and Vincent Ton-kin, the defendant, and Mr. McCurdy for the purchase of the land out of which this controversy has arisen. Afterwards McCurdy’s interest was transferred to Hipps & Lloyd. On the 19th day of August, 1876, Mr. Baum made a conveyance to the defendant for this land. I believe that was the date of the1 delivery of the deed, though it was written some time before; I speak .of the deed as not being executed till its delivery. Upon that occasion John B. Baum, the plaintiff and his brother-in-law, Uriah Lloyd, went to Cherry tree for the purpose of settling the balance of the purchase money and delivering the deed. It seems that $2,625 had been paid upon this purchase by these parties, Tonkin and Hipps & Lloyd, and $2,375 remained unpaid. They desired the deed, and out of this transaction arises the only question that is in controversy before you. It is true, the evidence has taken a wider range; but with that evidence you have nothing to do. That Vincent Tonkin made a bad bargain and suffered a loss from that baiv gain according to the testimony of both the plaintiff and defendant, does’ not weigh a feather in this case; you cannot take that into consideration at all in coming to your verdict. Where a contract is made the parties are required by law to stand by it, or suffer in damages for the breach of it. The transaction, then, at the office of John Eason, on the 19th of August, 1876, was the foundation of this action. It seems there were $2,375 due from these parties to the plaintiff, $1,075 by Hipps & Lloyd, and $1,300 by Vincent Tonkin, the defendant. If they had attended to their business as business men should, this controversy would never have arisen ; and I may say, it was a transaction of a very unusual character. When this deed was passed from John B. Baum to the party defendant here and the other parties, proper security should have been taken; but instead of that we find the singular fact of a bond being taken for the $1,075 with Tonkin as bail for the other parties, and a mortgage from Vincent Tonkin for the $1,800 that he was to pay, without any bond or note or anything to base it on.</p> <p>Now, in the consideration of this case the mortgage is entirely out of the question, excepting as a basis for the amount, as fixing the amount, or the liability from one to the other; it is no other element in the case than that. It was only a security upon the land; and so far as the mortgage itself was concerned, when it was unpaid, the only remedy that Baum had was the one he actually adopted, to proceed upon the mortgage, sell the laud, and raise the money from it, or purchase it himself. That is, then, out of the question ; and it is not with that especially that we have to do.</p> <p>The plaintiff here declares upon the debt created by a promise of Vincent Tonkin cotemporaneous with the deed, made at the same time with the deed, and upon which an action of debt is brought and is the subject of the action now before you. You have to make out a case of this importance from the testimony of the witnesses who were present at the transaction. And just here we may state that the defendant has asked us to instruct you as a matter of law, “that to take the case out of the Statute of Limitations by an acknowledgment made within six years, such an acknowledgment must be plain, unambiguous, express, and so distinct and palpable in its extended form as to preclude hesitation; therefore the verdict should be for the defendant.”</p> <p>I may say here, while we agree with the language of the point, “that to take the ease out of the Statute of Limitations by an acknowledgment made within six years, such acknowledgment must be plain, unambiguous, express, and so distinct and palpable in its extended form as to preclude hesitation,” [we cannot agree with its conclusion, that therefore the verdict should be for the defendant. In other words, when we are asked to take the case from you entirely, we do not feel that we are justified in doing so; but we will submit that question to you, believing it a question for your determination and not for ours.] (Ninth assignment of error.)</p> <p>“ Second, under the pleadings and the evidence in the case, the court should instruct the jury to find-for the defendant.”</p> <p>We decline to so instruct you. (Tenth assignment of error.)</p> <p>It will behoove you then, gentlemen, to carefully examine the testimony under the -law as we have stated it to you. The Statute of Limitations is a plea that is very much favored by courts; and, to take a case out of the provisions of the statute, the testimony must be very plain, clear, distinct, precise, and such as would give you no room for hesitation, not only as to the amount of money, but as to the character of it. For instance, it is not sufficient for a man to acknowledge a debt generally, without referring to the particular paper which creates the indebtedness; and the reason, to a thinking man, is very observable. It is to prevent old claims from being prosecuted, to encourage men in the prompt and regular transaction of their business, and to prevent perjury in the trial of verbal transactions years and years after they have occurred, when witnesses must and will necessarily differ in their recollection of the facts. •</p> <p>■ Now as to the transactions of the 19th of August, 1876, witnesses have been called upon.each side, and you are to take their testimony and scan it very carefully. John B. Baum, the plaintiff, testified and you have heard his testimony. He is the plaintiff in the case; still, he is made a competent witness, as the defendant is-also. You will further take into consideration the. testimony of Uriah Llojul, the other witness on the part of the plaintiff who was present at the delivery o’f the deed, and who is the brother-in-law of the plaintiff. You have heard their testimony. [Was it of itself of such a precise, distinct, unambiguous, and explicit character as to satisfy you that there was an actual, verbal promise in consideration of this mortgage or indebtedness, on the part of Vincent. Tonkin, to pay this money, entirely independent of the mortgage?] (Second assignment of error.) Is the testimony clear to you upon that subject? You heard what it was and will remember it better than we do. You heard the testimony of Mr. Lloyd, which in the main, it occurs to us, corroborates the testimony, so far as it goes, of John B. Baum, though not so explicit. [Does it, we repeat, satisfy your minds that there was a promise of the character required by the law to establish a case of this kind?] (Third assignment of error.) If you should come to the conclusion that it does, then, gentlemen, you may refer to the testimony upon the other side. Vincent Tonkin, who is the party defendant here, takes the stand and swears that the arrangement was that the land should pay it; that he made no personal promise outside the mortgage. ’Squire Eason, an entirely disinterested witness, who was called, swore that he so understood the conversation.</p> <p>Now, gentlemen, if you can reconcile the testimony of these four witnesses, do so. If you cannot, it Mull be your duty to decide which of them is entitled to be believed, under all the circumstances of this case. Of course it is alleged that Mr. Tonkin is a party here, that he is deeply interested; and it is urged that he was a loser by the contract; but this, as we stated before, cannot avail him in any way, except that it might give a tone to his recollection and his feelings that a purely disinterested witness would not have.</p> <p>It is contended on the other side that, from their age and from feelings of interest in the matter, the plaintiff's witnesses, Messrs. Baum and Lloyd, are not so reliable as the other witnesses ; and the fact is suggested that Mr. Baum has forgotten a quite material part of the transactions of that day, lie not having any recollection of another paper that uras signed at the same time. This testimony you must reconcile and dispose of in some way. If you believe this testimony, that will still not make out the case of the plaintiff. The Statute of Limitations has been here pleaded ; and we instruct you as a matter of law that the Statute of Limitations would run from the time of that promise, because there is no proof in the parol testimony about any fixed time at which the money was to be paid, and it can only be ascertained by reference to the mortgage, if we recollect the testimony correctly; and if this is the testimony, we then instruct you as a matter of law that the Statute of Limitations would run from that day; and this suit, being brought more than six years after that conversation, would be barred by the Statute of Limitations.</p> <p>But, gentlemen, there are subsequent conversations which would bring the case within the provisions of the Statute of Limitations, excluding the testimony of Uriah Lloyd and young Bowers upon that branch of the case, because an assumption, to take a case out of the Statute of Limitations, must be to the party himself or his authorized agent, — talk to a stranger could not have that effect; it is not like an admission, but it is an assumption that is sought to be proved — [discarding, then, the testimony of Uriah Lloyd and young Bowers, on that branch of the case, you will consider the testimony of ’Squire Baum, wherein he .says subsequent admissions were repeatedly made to him, whether they were within the six years and not barred by the Statute of Limitations, and you will take into consideration whether they prove the case according to the terms of the law as laid down by the court. In other words any other subsequent admissions to Mr. Baum must be as broad, as full, and as clear, as the original promise was.] (Fifth assignment of error.) It must refer to the existing debt unconnected with the mortgage entirely. If the testimony convinces you of that then your verdict should be for the plaintiff.</p> <p>Mr. Tonkin denies any subsequent conversation at which he made any such admissions. You will compare this testimony, give it full consideration, and be governed by your best judgment in coming to a conclusion. [If the testimony satisfies you, as the point of the defendant has put it, that the acknowledgment was plain, unambiguous, express, and so distinct and palpable in its extended form as to preclude hesitation, then, gentlemen, your verdict should be for the plaintiff.] (Sixth assignment of error.) The plaintiff’s counsel will send out a calculation, after showing it to the other side, which will relieve you from the necessity of calculating the interest, in case you find for the plaintiff.</p> <p>If the evidence fails to come up to the measure required by the law to take the case out of the Statute of Limitations, then your verdict will be for the defendant.</p> <p>I have only to answer the plaintiff’s points :</p> <p>2. That if the jury believes from all the evidence Tonkin promised to pay the amount of the purchase money set out in the mortgage, the verdict should be for the plaintiff for such ¡tu amount as they may find due, after deducting the proceeds of the sheriff’s sale, with interest.</p> <p>Answer. This is affirmed, as qualified by our general charge and by the point of the defendant. (Seventh assignment of error.)</p> <p>3. That if from all the evidence the jury believes that Ton-kin, within six years prior to the time of the bringing of this suit, promised and acknowledged to pay the amount of the purchase lhoney set out in the mortgage, then the verdict should be for the plaintiff for such an amount as they find remains unpaid with interest thereon from the 19th of August, 1876.</p> <p>Answer. This point would be correct with the explanations already made. (Eighth assignment of error.)</p> <p>Verdict for the plaintiff in the sum of $1,300.</p> <p>A motion for a new trial was overruled upon condition that John Baum, the plaintiff, convey to Vincent Tonkin, the defendant, the interest in the mortgaged premises acquired by him at the sheriff’s sale on or before the first Monday in September next; and in default thereof a new trial is granted.</p> <p>On the 11th of August, 1886, the plaintiff filed a deed to the defendant as directed. Judgment was thereupon entered upon the verdict, whereupon the defendant took this writ-filing inter alia the above assignments of error.</p>

<p>Error to the Court of Common Pleas of Mercer county: Of October Term 1886, No. 173.</p> <p>This was a feigned issue wherein William Waugh was plaintiff and Nicholas Beck was defendant.</p> <p>The following are the facts as they appeared on the trial: Some time in the month of August, 1884, the defendant Beck applied to the plaintiff, to loan or advance him some money for the purpose of purchasing some oil, stating at the same time that his friend, J. C. Cornwell, would advance him a like amount for the same purpose, and that Mr., Cornwell would take control of and manage the purchase of the oil.</p> <p>Some days after this Mr. Cornwell with Mr. Beck called on Mr. Waijgh, when, after some conversation between the parties and after Mr. Cornwell had informed Mr. Waugh that he was willing to loan his friend, Mr. Beck, some money, Mr. Waugh agreed to advance or loan Mr. Beck a sum of money not exceeding one thousand dollars ($1,000) when called upon.</p> <p>In pursuance of this arrangement Mr. Cornwell, through his broker, Mr. Lamberton, of Oil City, drew on Mr. Waugh for five hundred dollars ($500). Mr. Waugh informed Mr. Beck of the draft and called on him for his note for the same before he would honor it. Mr. Beck then, on the 8th of August, 1884, gave Mr. Waugh his promissory judgment exemption note at one day for the amount of the draft, to wit, $500, and Mr. Waugh the next day remitted the amount, per express, to Mr. Cornwell’s broker. A few days subsequent thereto Mr. Be.ek called on Mr. Waugh and requested a further loan of $500, and on September 6th, 1884, he gave his promissory judgment exemption note at one day for the sum of $500. Mr. Waugh then, according to the direction of Mr. Beck, remitted the amount, per draft, to Mr. Cornwell’s broker. These two notes were entered respectively at Nos. 446 and 447 September Term, 1884.</p> <p>On September 21st, 1885, on the petition of the defendant, Nicholas Beck, a rule to show cause was granted why these judgments should not be opened, and, after answer and argument, his Honor opened the judgments and directed an issue to try the following facts, to wit: (1)“ Whether the notes on which these two judgments are based were given as part of a gambling transaction, in which the plaintiff and defendant were engaged for their mutual gain; or (2) whether the plaintiff furnished the money which formed the consideration of the said notes for the benefit of the defendant, but knowingly and with the purpose of furthering a gambling transaction'.”</p> <p>In the general charge the court instructed the juiy, inter alia, as follows :</p> <p>The serious legal question arises under the second part of the issue.</p> <p>The learned counsel for the plaintiff have most ably argued that even though the facts involved in this part of the issue be found in favor of the defendant, still the plaintiff can recover the money represented by these notes.” With this position, however, we cannot agree, and we therefore instruct you that if the plaintiff furnished the money represented by these notes knowingly and with the purpose of furthering a gambling transaction, as above explained, then your verdict must be for the defendant, even though Judge Waugh, the plaintiff, had no interest in the expected profits of the transaction. (First assignment of error.)</p> <p>* * * * •* * * *</p> <p>Secondly. The turning point in the case is as to Judge Waugh’s knowledge of what was to be done with the first sum of money, for if he knew what was to be done with the first lie knew what was to be clone with the second, for it was all part of the same transaction, and that is not a mutter in dispute. It seems to me that if it be an established principle of law, as it is, that a contract made as part of a gambling transaction is unlawful as against good morals, it follows that all parts of the transaction are unlawful. (Second assignment of error.)</p> <p>rr jj, ÜC*</p> <p>“The test as to whether or not Judge Waugh in this matter is entitled to recover, is to my mind the same test that would be applied if this gambling transaction were a misdemeanor or felony. If it were a misdemeanor, would the facts alleged by the defendant make him a principal? If a felony, would the facts alleged by the defendant make him an accomplice ? (Third assignment of error.)</p> <p>* * * * * * *</p> <p>The burden of proof in this issue is upon the defendant. It is for him to show by the weight of the evidence that Judge Waugh knew that this was being used for the purchase of oil upon margins. You will take all the evidence in the case and conclude whether he did know that fact. (Fourth assignment of error.)</p> <p>The plaintiff presented, inter alia, the following point:</p> <p>2. That if the jury believe, from the evidence, that the plaintiff loaned the money which formed the consideration of the notes for the benefit of the defendant, and although he knew the money was to be used in buying oil on margins, still the plaintiff can recover, and the verdict should be for the plaintiff.</p> <p>Answer. Simple knowledge by the lender of money that the borrower was likely to, or was going to, use it in gambling might not be enough to prevent a recovery of the money loaned, but if the plaintiff paid this money to Mr. Lamberton, the oil broker, in accordance with an arrangement made between himself and Mr. Cornwell, and if he knew that this money was to be used for the purchase of oil on margins, he could not recover. Therefore, so far as this case is concerned, this request is refused. There is one matter in this request that has been left indefinite. I presume the time of the knowledge, of course, is meant to apply to the time of the loaning of the money. Of course, if Judge Waugh did not know at the time the money was loaned and the notes were given that this money was to be used in a gambling transaction, but learned that afterwards, he would not be bound by that subsequent knowledge. The question is, what did he know at the time When these notes were given.</p> <p>A general verdict was given for the defendant, and on motion for a new trial and argument had, the court overruled the motion in an opinion filed, inter alia, as follows:</p> <p>There were virtually two issues tried by the jury in this case. They had been framed by the court. The jury were not directed to pass upon these issues separately by their verdict, but they rendered a decision generally for the defendant. Of this we think the plaintiff has cause to complain. But the defendant consents that the record shall be made to show that the jury found the first clause of the issue in favor of the plaintiff, but found for the defendant upon the second. This will repair any injury the plaintiff might sustain because of the general verdict. It is urged further upon behalf of the plaintiff, that the second clause of the issue was not properly framed. We think, however, that it could not have been otherwise framed and have included all the elements necessary 'for defendant’s defence. An order will be made correcting the verdict as indicated above and, as it is considered that the plaintiff has not been injured in any other particular, the rule is now dismissed.</p> <p>Judgment was entered upon the verdict, whereupon the plaintiff took this writ and filed the above assignments of error.</p>

<p>1. The terms and conditions to which a fire insurance is subject must be such as are reasonably ajiplicable to the kind of insurances upon the particular species of property insured, and such, therefore, as the parties may be presumed to have had in view when the contract was made.</p> <p>2. The description of a horse, as “ contained in the assui'ed’s barn,” in a policy of fire insurance with a lightning clause attached, insuring said horse, is not a promissory contract or warranty that the horse is to be kept all the time in the barn, and that the policy shall cease to cover it the moment it left the barn.</p> <p>3. A policy of fire insurance in the usual form used in insuring personal property and real estate to which a clause of indemnity against loss by lightning is attached, upon a horse described as ‘ ‘ contained in a barn on the assured’s farm, covers a loss of the horse while in pasture on said farm.</p> <p>4, Grandin v. Rochester German Insurance Company, 11 Outerbridge, 26, followed.</p>

<p>Error to the Court of Common Pleas of Butler county: Of October Term, 1886, No. 6.</p> <p>. This was an appeal by the borough of Millerstown from a judgment of a justice of the peace in an action of debt on a bond of $100 issued by said, borough, wherein B. Frederick was the plaintiff, and the said borough of Millerstown was the defendant. Pleas, nil debet, non est factum.</p> <p>Prior to the year 1874, the borough of Millerstown had no debts, but began to contract debts soon after the new Constitution took effect, in January, 1874, and at the date of the passage of the Act of April 20, 1874, the indebtedness of the borough did not exceed $500. Between the 20th of April, 1874, and the issue of the bond in suit, the borough had incurred or created a large indebtedness of upwards of $9,000, and the bond in suit, with others, was issued by the alleged authority of the town council of the Borough to cover or fund said indebtedness. Prior to the issue of bonds the Burgess of the Borough filed in the court of Quarter Sessions of Butler county, a paper purporting to be a statement of the actual indebtedness of the borough, the last preceding assessed valuation of the taxable property, the amount of proposed increase of debt, the number and form of bonds, pursuant to the Act of 20th of April, 1874, which said statement did not give the real indebtedness of the borough, but an amount much below the real indebtedness. The indebtedness, $4,332,74, of the Borough as shown by the statement of the Burgess filed, all of which, except perhaps about $500, was created after the new Constitution took effect in January, 1874, and the passage of the Act of April 20, 1874, was more than two per cent, of $72,529, the last assessed valuation of the taxable property of said borough. Said indebtedness as above set forth was created without giving the electors of said borough an opportunity to vote thereon, or give their assent to such increase of indebtedness, as provided in the 3d section of the Act of April 20, 1874, and section eight of article nine, of the Constitution. After incurring this indebtedness without the approval of the electors of the borough, the town council, by resolution dated November 14th, 1874, determined to increase the indebtedness $744.29, and issue bonds to cover the entire indebtedness, including said increase, pursuant to which resolution the bond in suit, with others, was issued.</p> <p>On the trial the defendant offered “to prove by competent testimony and to the satisfaction of the jury, that on the first of January, 1874, when the Constitution of Pennsjdvania took effect, the Borough of Millerstown was not indebted in any sum, actual or imaginary.” Objected to. Objection sustained and bill sealed for defendant. ( First assignment of error.)</p> <p>2. To prove by the same testimony and to the same effect, that on the 20th of April, 1874, the Borough of Millerstown was not in debt actual, legal or illegal, to a sum exceeding five hundred dollars. Objected to. Objection sustained and bill of exceptions sealed for defendant. (Second assignment of error.)</p> <p>3. To show by the same satisfactory and conclusive testimony that the indebtedness referred to by the Burgess in the paper on file in the Quarter Sessions and in evidence here, was created and formed by the Borough of Millerstown between the 20th of April, 1874, and the 20th day of November of the same year, when the statement of the Burgess was filed at Quarter Sessions, No. 4, January Term, 1875.</p> <p>This for the purpose of showing:</p> <p>First. That there was no indebtedness, legal and actual, on the part of the borough at the time this paper of the Burgess was filed, the resolution of the board passed, and the bonds issued.</p> <p>And second, To show that the indebtedness mentioned in the statement of the Burgess as a result necessary from the fact proposed to be proved was an illegal debt for which the borough was not responsible, which had been made in violation of the law and Constitution, and that the action of the common council in issuing the bond in suit, with others, was illegal, did not bind the borough, and gave the holder of said bond no right of action against the borough; and in short to show that the verdict of the jury, under the charge of the court, must be in this case and now in favor of defendant. Objected to. Objection sustained and bill sealed for defendant. (Third assignment of error.)</p> <p>4. Defendant offers to prove, further, that no election was held, nor did the electors or taxpayers of the borough of Millerstown authorize this debt, or express their willingness to incur it, or to increase it, nor had they notice or knowledge of it, otherwise than by the action of the town council, based, as alleged, upon the statement of the Burgess filed in the Quarter Sessions of this county.</p> <p>The plaintiff makes the following general objections to the foregoing offer, to wit:—</p> <p>The council of the borough of Millerstown, having, by resolution entered on their minutes, resolved to fund the present floating indebtedness of the borough of Millerstown, allowed to be funded by the seventh section-of the Act of 1874, and to increase the debt of said borough, in an amount not exceeding two per cent., or the amount allowed by the said Act of 1874; and, in pursuance of said resolution, having directed the Burgess, the chief officer of said borough, whose duty it was, under said Act of 1874, to ascertain, settle and'prepare a statement showing what the indebtedness authorized to be funded by said Act was; having prepared the statement which said Act required, and having verified it and filed it according to law, setting forth that the floating indebtedness which the council had resolved to fund, by virtue of the Act of 1874, was the sum of 4,332.74; the valuation, $72,559; the said .statement is conclusive upon said borough in the suit brought on the bond issued in pursuance of the resolution of council, and the statement prepared and filed under the Act of 1874, and cannot be contradicted or explained away when the suit is brought by the bona fide purchaser for value, who had a right to presume that all the directions of said Act had been duly and legally performed: and nothing in the said statement was illegal and fraudulent.</p> <p>Objection sustained and bill sealed for the defendants. (Fourth assignment of error.)</p> <p>The defendant presented the following point:</p> <p>That upon the face of the pleadings and the testimony in the case, and especially upon the fact that the real defence was excluded, and particularly the fact that the bond is payable at the office of the treasurer of the borough of Millers-town, and there being no demand made there, nor the bond presented there for payment, the suit is premature, and the plaintiff cannot recover.</p> <p>Answer of the court. This is refused. (Fifth assignment of error.)</p> <p>The court directed the jury to find a verdict for the plaintiff.</p> <p>Verdict for the plaintiff in the sum of $144.35 and judgment thereon, whereupon the defendant took this writ and filed the above assignments of error.</p>

164. Case by William Johnston against the Pittsburgh and Western Kailroad Company to recover damages for injuries sustained by the negligence of the conductor and the engineer of the railroad train on which he was a brakeman. Plea, not guilty. After the plaintiff closed his testimony the defendant moved the court, Hazen, P. J., to grant a compulsory nonsuit. ■ A compulsory nonsuit was granted.

<p>In a proceeding under the Act of May 14th, 1874, (P. L. 159) to divide a borough into wards, the proper notice should be directed by the court on the filing of the petition, and the character of the notice to be given should be embodied in the order, and the report of the commissioners should certify specifically what notice was given. The order of the court should also contain an explicit direction to the commissioners to inquire into the propriety of granting the prayer of the petitioners; and the report of the commissioners should contain an equally explicit opinion as to the propriety of granting this prayer.</p>

187. Certiorari to said court to bring up the record in case appealed: Of October Term, 1886, No. 150. The following are the facts of the ease as they appeared on the hearing before the court, Hart, P. J. On April 27th, 1886, Julius B. Clark filed the following petition, verified by his affidavit: .

<p>1. Since the Act of May 28th, 1858, P. L. 622, it is not unlawful for a debtor to pay, or a creditor to receive, more than six per cent, interest. The right to release and deduct the amount of usury from a mortgage debt is strictly personal in the mortgagor.</p> <p>2. The terre tenants of the mortgaged premises cannot defend as to the amount of usury charged, in a scire facias, on the mortgage; nor can they make such defence by virtue of an agreement with the mortgagor made before they became terre tenants, that he would assert his personal rights and defend as to usury. Their remedy is an action against the mortgagor for a breach of his contract.</p>

<p>Appeal from the Court of Commou Pleas, No. 1, of Allegheny county, in equity. Of October Term 1886, No. 67.</p> <p>Tliis is an appeal by Peter McGee from the decree of said court sustaining a demurrer to a bill in equity, and dismissing said bill, wherein Peter McGee was plaintiff, and the Pennsylvania Railroad Co. and the city of Pittsburgh were defendants.</p> <p>The plaintiff complained in bis bill substantially that the Pennsylvania Railroad Company, under a contract with the city of Pittsburgh, through her council, who claimed to have the power to make said contract under the Act of April 15th, 1869, had taken and appropriated to private use Washington street — a public street of the city of Pittsburgh — •contrary to the laws and Constitution of this Commonwealth.' That he owned property beyond the portion of said street thus taken which was greatly damaged by said unlawful taking and using of said street. That said company had destroyed a bridge a portion of said street, and thus without warrant of law to his damage were vacating said street. He prayed that a mandatory injunction be decreed to issue compelling and requiring said company to replace and rebuild said bridge. That an order be made to assess the damage sustained by him by reason of the unlawful acts of the defendants against them. And for general relief.</p> <p>To tliis the defendants severally demurred, and assigned the following reasons:—</p> <p>1. That the matters in said bill complained of appear to have been done under a claim of right derived from the select and common councils of the city of Pittsburgh.</p> <p>2. That it appears, in and by said bill, that the vacation of Washington street therein complained of was the subject of a contract between the said Pennsylvania Railroad Company and the said defendants, aud that no complaint is made by said city that the said acts complained of by the plaintiff are not in conformity with said contract.</p> <p>3. That it appears, in and Ry the terms of an Act of Assernbly recited in said bill, viz., the Act of April 15th, 1869, that the said defendants were empowered to make said contract.</p> <p>4. That it is not in said bill alleged or insinuated that, prior to the vacation of Washington street, as complained of, the said Pennsylvania Railroad Company' had not acquired the property fronting on both sides of the. said portion of said street vacated.</p> <p>5. That the matters in said bill complained of do not present such case as entitles the plaintiff to the relief prayed for.</p> <p>6. That it. appears, in and by the said bill, that for any cause complained of the said plaintiff has an adequate remedy at law.</p> <p>The demurrers were sustained by the court and the plaintiff’s bill dismissed, whereupon the plaintiff took this appeal, assigning for error the action of the court in sustaining the demurrers and dismissing his bill.</p>

<p>Certiorari to the Court of Quarter Sessions of the Peace of Allegheny county: Of October Term 1886, No. 27.</p> <p>The record showed the following:—</p> <p>January 26lh, 1884, petition o'f Pittsburgh and Birmingham Passenger Railway Company presented, stating a failure to agree with the Monongahela Bridge Company as to the rate of compensation to be paid for the use of the bridge; that the rate demanded by the bridge company is excessive, and asking the court to fix the rate and the terms, and the manner in which the tracks shall be kept up.</p> <p>February 9th, 1884, answer of the bridge company filed, denying the jurisdiction, and that the rate is excessive.</p> <p>March 1st, 1884, arguments of counsel on petition and answer, and N. S. Williams appointed commissioner.</p> <p>September 1st, 1885, the court- filed the following opinion and decree: After an examination of the facts in evidence in above case, and the questions of law submitted by counsel for defendant going to the foundation of this proceeding, I have come to the conclusion that the objections urged to the jurisdiction of the court should be overruled. And now, proceeding under such conclusion to fix and determine the amount of tolls which should be paid by plaintiff for the use and passage over defendant’s bridge, I am of opinion that the sum of two cents per trip of each car, that is for each time a car passes over said bridge, is a just and fair compensation .therefor; and. therefore I do now,'in pursuance of the . powers and duties devolving upon the said Court of Quarter Sessions, fix and determine that said plaintiff shall hereafter, and from the date of the filing of the petition, account and pay said defendant the sum of two cents as a proper comuensation and toll for each single trip or passage of a car of "plaintiff over and across said bridge of defendant, payable monthly, as the same shall accrue; and further, that the expense of maintaining and keeping in order the tracks on and over the said bridge shall be borne by said bridge company, in the same manner as was done at the time of the filing of the petition in this case.</p> <p>September 28th, 1885, petition of the Monongahela Bridge Company for an appeal to the Court'of Common Pleas of Allegheny county and demand for a jury trial filed.</p> <p>November 30-fch, 1885, petition dismissed.</p> <p>The Monongahela Bridge Company thereupon1 took this writ and assigned for error the decree of the court fixing the tolls to be paid by the said railway company, and the action of the court in dismissing the petition for an appeal and jury trial.</p>

1, of Allegheny county: Of October Term 1886, No. 46. This was an action of ejectment brought by Peter List, committee of the person and estate of Nicholas Shaffer, a lunatic, against Christina Shaffer, the wife of the lunatic, to recover possession of the homestead occupied by her and his minor children as they had done while he was sane. Plea, not guilty.

2, of Allegheny county: Of October Term, 1886, No. 47. Debt on an insolvent bond by The Drovers’ National Bank of Union Stock Yards, Lake, state of Illinois, against Simon Marks, John Herchenroether and Gustav Kahn.

1, of Allegheny County: Of October Term 1886, No. 58. This was a scire facias to revive a judgment obtained in March, 1877, by Harris Crawford against Murphy & Hamilton, then co-partners — carpenters' and builders, which judgment had been paid, at the expiration of the stay of execution, by E. P. Jones, who took an assignment of the judgment. Pleas, non assumpsit, payment with leave.

7. This was an appeal from the judgment of a justice of the peace, for $111,65, in favor of the plaintiff in an action of debt brought by James Henry against Heilman Brothers. Henry, the plaintiff, was the sheriff of Armstrong county. The defendants, at a sheriff sale of personal property, had purchased goods amounting to $110.

86. Ejectment by A. E. Barrett against Simon Hawk for a lot of land in South Buffalo township, Armstrong county, containing twenty-four acres, more or less. Plea not guilty. The plaintiff claimed that Colum McGinley died, seized of this- land, and that he derived title under his will, which was duly probated.

<p>1. It is a good cause for opening a judgment and letting a defendant into a defence that, at the time of the entry of the judgment on a judgment note, it was prima facie barred by the Statute of Limitations.</p> <p>2. A promissory note given by two individuals will, in the absence of evidence, be presumed to be their note as individuals and not as partners.</p>

<p>1. The lands of. a decedent were sold by order of court in proceedings in partition, and purchased by the husband of one of the heirs entitled to participate, who paid the purchase money except such portion as his wife was entitled to receive; this she released to the Master who made a deed to the husband alone. Held, that a trust resulted in favor of the wife to the extent of her interest in said real estate.</p> <p>2. When real estate is held by a title which is regular on its face, a bona fide mortgagee thereof or one claiming title under such mortgagee, . is not liable to be affected by any secret trust or equity if he be without notice of it; but if notice of it be given by the cestui que trust to the agent or the attorney of the mortgagee examining the title of said real estate prior to the execution of the mortgage, it is such notice of it to the principal as will bind him.</p> <p>3. Partition is made of lands of tenants in common, when their possession is common; "ejectment is the remedy when the possession of one is adverse to the others. A tenant in common is therefore not estopped from bringing an action of ejectment against one in possession holding adversely, by the dismissal.of his bill for partition of the same real estate against the same person.</p> <p>4. Where binding instructions are given to the jury to find for the ' plaintiff, the Supreme Court in a writ of error will assume that the evidence adduced by-the defendant is true, and also the trulh of every fact which may be fairly inferred therefrom.</p>

<p>A. gave notice, at a sheriff’s sale, of a leasehold interest in certain real estate, that the sale would be subject to his mechanic’s lien, and thus became the purchaser at a low price. On distribution of the fund arising from said sale, held that in the absence of any explanation as to his conduct in giving said notice, that he should be held to the terms of the sale announced by himself, and should not be allowed to participate in the distribution, on his mechanic’s lien.</p>

<p>Error to the Court of Common Pleas No. 2 of Allegheny county: of October Term, 1886, No. 111.</p> <p>This was an action of trespass on the case by James C. Grogan and A. Merz, partners as Grogan and Merz, against the Adams Express Company. .</p> <p>The plaintiffs in their declaration set out that the defendant is a common carrier of goods for hire between the city of Pittsburgh and Springfield, Massachusetts; that on December 20th, 1883, plaintiffs delivered to defendant and defendant received a certain article of jewelry of the value of one hundred and ninety-eight dollars ($198.00), to be safely and securely carried by said defendant to tbe city of Springfield; there to be delivered for said plaintiffs. Yet said defendant not regarding its duty as common carrier, but contriving, etc., did not, nor would safely and securely carry and deliver the same,, but behaved so carelessly and negligently in the premises that by its carelessness, etc., the jewelry aforesaid was wholly lost to plaintiffs to the damage of plaintiffs, etc.</p> <p>The defendant pleaded “Not guilty, and the special facts set forth in tbe affidavits of defence, with leave to add, alter, or amend, at bar.”</p> <p>The affidavit of defence first tenders to plaintiffs, judgment for $50 ; admits the loss of the goods in transportation and the value, to wit, $198; and sets up a contract between the parties alleged to be contained in the receipt given to plaintiffs by defendant.</p> <p>After a rule had been taken for judgment for want of sufficient affidavit of defence, a supplemental affidavit was filed, alleging a failure on the part of plaintiffs to give notice in writing to defendant within thirty days of the loss; and alleging that they were bound so to do under another contract in the receipt, and withdrawing the tender already made.</p> <p>The following are the facts of the case as they appeared on the trial before Ewing, P. J.</p> <p>On December 20th, 1883, the plaintiffs, who were engaged, in business as jewelers, in the city of Pittsburgh, delivered to the defendant company, for transportation, a small box, containing a lace pin made of gold and diamonds, of the value of one hundred and ninety-eight dollars. The box was securely packed and plainly addressed to the person for whom it was intended, in the city of Springfield, Massachusetts. At the time of shipment, the plaintiffs paid all charges asked by the defendant company, for transporting the box to its destination, and received a receipt therefor, from the company, in their receipt book, which was furnished to them by the Express Company; each page of the book is headed “ Adams Express Company, Domestic Bill of Lading, Received of Grogan and Merz, the following article, subject to the contract printed below.” Then follows ten blank lines, for date of shipment, value, number of packages, name of consignee, destination, and name of receiver.</p> <p>The receipt for the package involved in this case is the first one upon the page, and the entries are as follows : “December 20th, 1 package, Miss B. T. Tiffany, 297 Union street, Springfield, Massachusetts, 25 cents paid, J. G. Storen,” the receipt also shows the figures ^-| in purple ink, interlined after the date, which Mr. Post, the clerk of the Express Company, says are his handwriting, and signify the date of notice of loss, hereafter mentioned. Then follows nine other receipts for packages shipped at various later dates, and at the bottom of the page in small type, the following words appear: “which it is mutually agreed is to be forwarded to our agency, nearest or most convenient to destination only, and there delivered to other parties, to complete the transportation. It is part of the consideration of this contract, and it is 'agreed, that said Express Company are forwarders only, and are not to be held the holder hereof demand payment ^ _ sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them and so specified in this receipt, which insurance shall constitute the limit of the liability of the Adams Express CompanyX . In no event shall the Adams Express Company be liable for any loss or damage, unless the claim therefor shall be presented to them, in writing, at this office, within thirty days after this date, in a statement to which this receipt shall loe annexed.” liable or responsible, etc, event shall</p> <p>There was no value marked in the receipt book, and Mr. Sample, the plaintiffs’ agent who shipped it, swears positively that none was asked. MV. Stover, the defendants’ agent who received the package, says that lie has no recollection of this package; but that it was his general custom, and a rule of the company, to ask its value at the time of shipment. It is admitted that the value of the package was $198. On December 29th, 1883, nine days after shipment, the plaintiffs, hearing from Springfield of the non-arrival of the package, sent Mr. Sample with the receipt to the Express Company’s office, in Pittsburgh, and he called the matter to the attention of Mr. Post, the company’s agent in such matters, to the fact, and Mr. Post thereupon wrote the figures referred to, upon the book. No other or further notice was, at that time, demanded by the Express Company, nor, in fact, claimed at. any other time, until after plaintiffs brought their action, and had served a rule on the defendant, for judgment, for want of a sufficient affidavit of defence, when, in a supplemental affidavit of defe.nce, the Express Company withdrew the tender of $50 made in their original affidavit of defence, and set up the clause printed on the receipt, requiring notice in writing, within thirty days, with the receipts annexed. It was admitted bj^ the witnesses of the Express Company, that the company acted upon the notice thus given them, and traced the package as far as Springfield, where it was lost. No explanation was offered by the company as to how it was lost, or what became of it.</p> <p>The plaintiffs presented the following points:</p> <p>1. That the plaintiffs having shown and the defendant (having) admitted the loss of the goods, while in the defendant’s hands, in course of transportation, a presumption of negligence arises; and the alleged condition limiting the defendant’s liability to $50, is no defence in the absence of any evidence to show that the loss occurred without the fault of defendant.</p> <p>Answer refused. (First assignment of error.)</p> <p>2. That if the jury believe from the evidence that the plaintiffs on December 29th, 1883, at the Pittsburgh office of the defendant, notified the defendant of the loss, and gave to it full information as to the package, time of shipment, its destination, and its non-delivery, at the same time producing the receipt book, and calling defendant’s attention to these particulars by the entry of the package therein ; and that defendant did not request other and further proof, then the plaintiffs have complied with said alleged condition as to notice, and so far as said alleged condition is concerned, the plaintiffs are entitled to recover.</p> <p>Answer refused: under the testimony the above would not be sufficient to constitute a waiver of the condition. (Second assignment of error.)</p> <p>The defendant presented the following points:</p> <p>That in no event can the defendant company be held to a greater sum than fifty dollars, as in said contract provided. Affirmed. (Fourth assignment of error.)</p> <p>The defendant company could limit its liability by special contract. Affirmed. (Fifth assignment of error.)</p> <p>In the general charge', the court instructed the jury inter alia as follows:</p> <p>In addition, Mr. Grogan, one of the firm, admits that he saw this book frequently, and knew what was in it, and the presumptions are that he saw it, and knew what was in it. Mr. Grogan also knew that there was a higher charge for articles of a higher value than $100, than for an article worth $50. Now, if that be the method of business between that firm and this company, and those the circumstances under which this receipt was given, unless something was said to the contrary, I instruct you that this shipment was under the contract. It was equivalent to Grogan & Merz saying, we give you this package to be shipped under the conditions of the contract, and if it was worth more than $50, it was their business to have the company informed of that fact; there was a greater risk then to the company, a'nd a greater charge for carrying. While it is for you to determine the facts, if I understand the testimony that is uncontradicted, and that being the fact, it makes this the contract under which the defendant incurred the liability, and have rights. Now, there are only two stipulations of this contract that become important in this case. The first is in relation to this limitation of $50. The contract reads, among other things: Nor in any event shall the holder thereof demand beyond $50 ; at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured. ■ That, we instruct you is a valuation, and if the circumstances under which the goods were delivered be as testified to, and as I have stated, then'it was a binding contract, .a determination on the part of these parties as to the value of that package, and governs this transaction, unless the company took and appropriated it to its own use when it would have to pay the whole of it......But following the ruling of the Supreme Court of the United States, in a very recent case, I instruct you that this is a limitation of the liability, a valuation of the package that in this contest is conclusive, even though the loss occurred by the negligence of the defendant. (Sixth assignment of error.)</p> <p>Verdict for the plaintiff in the sum of $56.18, and judgment thereon, whereupon the plaintiff took this writ, and filed inter alia the above assignments of error.</p>

<p>Appeal from the Court of Common Pleas, No. 2, of Allegheny county: of October Term 1886, No. 140.</p> <p>•Appeal of Priscilla G. Miskimins and others from the decree of said court vacating and cancelling the satisfaction of two mortgages, and subrogating Charles A. Warmcastle administrator of the estate of William Miskimins deceased, to the rights of the mortgagee.</p> <p>The facts as they appeared in the court below sufficiently appear in the opinion of the Supreme Courl.</p>

<p>Error to the Court of Common Pleas No. 2 of Allegheny comity: Of October Term 1886, No. 166.</p> <p>Debt bj D. W. C. Bidwell against the Pittsburgh, Oakland & East Liberty Passenger Railway Company. By agreement of parties R. B. Carnahan Esq., was appointed referee under the Act of 1874. The facts as they appeared before him on the trial of the cause sufficiently appear in the opinion of the Supreme Court.</p> <p>The referee reported, inter alia, as follows:</p> <p>The referee finds that the contributions, assessments and paj’ments of money by the plaintiff to the defendant company were, when they were made, advanced and paid, voluntary assessments on his stock as a stockholder, and were not loans to the company and created no debt, and were .not intended to be loans or debts, either by the plaintiff or the defendant company, and that there has been no subsequent assumption, acknowledgment or recognition of. the same by the defendant company, as loans or debts, and that accordingly the plaintiff cannot recover as respects -said advances, contributions and voluntary assessments. It is strongly urged by plaintiff’s counsel that the plaintiff’s claim is supported by a strong equity in view of the recovery in General Barton’s suit. This would be true and have much weight if the stock remained in the hands of the three origiual stockholders; but General Barton did not sue until after he had disposed of his stock, and the whole of Mr. Zug’s has passed into the hands of Captain Gordon without notice of the plaintiff’s claim or means of acquiring information; and he owns at present three eighths of the entire stock. The plaintiff cannot have, under these circumstances, any equity against the corporation, and the holder of a majority of the stock. The so-called equity would work the grossest injustice as respects'all the stock but that held by the plaintiff.</p> <p>In the affidavit of defense, it is admitted, that there is due to the plaintiff the sum of $173.89, with interest from October 1st, 1880, being a balance due on a spring wagon furnished by the plaintiff to the defendant. The defendant tendered judgment in its affidavit of defense for this sum, with costs to the date of filing of the affidavit of defense and tender of judgment. Under rule 68 of the Common Pleas Courts of this county, it is provided: “If the defendant in his affidavit admit a certain sum to be due and offer to confess judgment for the same, which is not accepted by the plaintiff, defendant shall be entitled to recover costs subsequently accruing, unless the plaintiff recovers a greater sum than the amount offered.”</p> <p>There was no controversy before the referee in reference to this balance and in fact no testimony was offered on either side in reference to it, and it does not appear to be at all in controversy. The referee accordingly finds in favor of the plaintiff for the sum of $233.85, being the amount of said balaiice with interest to this date. The interest is computed to this date for the reason that there appears to have been no tender of payment, but the judgment must be entered without costs to the defendant, under the rule above referred, which have accrued since the teuder of judgment.</p> <p>Exceptions were filed by the plaintiff to the findings of the Referee which were reviewed by him. He reported that lie found no reason to change his report. Judgment was accordingly entered on the report of the Referee for the plaintiff in the sum of $233.85. The plaintiff thereupon took this writ assigning for error inter alia the findings of the Referee upon which the judgment was entered.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October Term, 1886, No. 63.</p> <p>This was an action of trespass on the case brought by Joseph Langdon against Chartiers township, Allegheny county, to recover damages alleged to have been sustained by reason of the negligence of the supervisors of the road of said township in not keeping the foot walks along the public road in a safe and passable condition. Plea not guilty.</p> <p>The following are the facts of the case as they appeared on the trial before Magee, J.</p> <p>On April 2d, 1869, the following Act of Assembly was approved : — ■</p> <p>An Act to provide for the construction and maintenance of foot walks in Chartiers, Scott Union, and Robinson townships, Allegheny county.</p> <p>Section 1. Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania, in General Assembly met, and it is hereby enacted by the authority of the same. That the supervisors of Chartiers, Scott, Union, and Robinson townships, Allegheny county, be and are hereby authorized and instructed to deduct from the road taxes of each taxpayer such sum as he may expend in making and keeping in repair foot walks on the public roads in said townships, to be constructed in the following manner, viz.: It shall be the duty of the taxpayer to furnish the supervisors a bill of the cost of the foot walk constructed by him, stating location, kind of material used, cost of same, et cetera, which bill, if not excessive, is to be deducted from his road tax; should the bill exceed the value of the work done, it shall be the duty of the supervisor, to put a just valuation on the same; owners of teams, drivers or horsemen riding or trespassing on the foot walks of said townships, shall, for every offence, pay a fine or forfeit, not exceeding fifty dollars, recoverable in the name of the Commonwealth, at the instance of any person who will sue therefor, in the same manner as debts of like amount are recoverable with costs of suit; one half shall be paid to the person suing for and recovering the same, and the residue to the supervisors of the proper township, for the benefit of the foot walk of said township.</p> <p>Under the provisions of this Act a board walk was built along the side of one of the public roads of Chartiers township and the plaintiff- below claimed that on account of the defective construction of the board walk, and its being out of repair, he was injured. The board walk was built with plank about sixteen feet long, laid lengthwise .with the wagon-way, and was supported by cross-pieces, one under the center and one under each end of the plank. About the first of November, 1883, the plaintiff and two other persons were going home from their work, at about 4 o’clock in the afternoon, and one of the persons in front of the plaintiff stepped on one end of a plank in the board walk, the stringer under this end sinking, the opposite end was raised and caught the plaintiff’s foot and tripped him. In falling some of his ribs were broken. For this injury suit was brought. The township defended for two reasons: 1st. Under the Act of Assembly the citizens are allswed to build foot walks and keep them in repair, and the‘township authorities have no control or supervision over them and are not required to repair them; and 2d. There was no defect in the board walk which would make the township liable, especially in view of the testimony of the plaintiff and three of .his witnesses, that they had traveled over this board walk twice a day for several years and did not suspect any defect at the place where the plaintiff was injured.</p> <p>The plaintiff presented inter alia the following point:—</p> <p>2. It is the duty of the township authorities to so construct the board walks along the line of the public highways, at least when said township is authorized so to do by statute, so as not to endanger the lives or limbs of persons traveling along the said sidewalks, and if the board walk at the date of the accident was in an unsafe condition, resulting from faulty construction, and by reason thereof the plaintiff was tripped, or thrown down, causing him great injury and suffering, the verdict of the jury should be for the plaintiff.</p> <p>Affirmed. If the duty was upon the township, or they assumed it, they were-bound to build a walk, free from faulty construction, or such construction as would endanger the community traveling upon the walk.</p> <p>The defendant presented, inter alia, the following points:</p> <p>4. That if the board walk was built under the provisions of the Act of Assembly of April 2d, 1869,#P. L., page 625, the plaintiff cannot recover and their verdict should be for the defendant..</p> <p>Refused. (Second assignment of error.)</p> <p>5. - That under all the evidence the verdict should be for the defendant.</p> <p>Refused. (Third assignment of error.)</p> <p>Verdict for the plaintiff in the sum of $349, and judgment thereon, whereupon the defendant took this writ assigning for error the answer of the court to the points of the plaintiff and the points of the defendant as shown above.</p>

2, of Allegheny county: Of October Term, 1886, No. 106. This was a case stated wherein Andrew Kalchthaler was plaintiff and the city of Pittsburgh was defendant. The following is the case stated as filed:— And now, October 24th, 1885, at Pittsburgh, Pa., it is hereby • agreed between the parties to-the above suit that the following case be stated for the opinion of the court in the nature of a special verdict.

1, of Allegheny county: Of October Term, 1886, No. 109. This was an action on the case brought by H. B. McCurdy against the Pittsburgh, Allegheny & Manchester Passenger Railway Company, and Charles P. Sorg, to recover damages alleged to have been sustained by him, by reason of a libellous notice posted by the defendants, of and concerning him.

<p>Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October Term 1886.</p> <p>Appeal by Edwin Bindley from the judgment of said court discharging a rule to show cause why a certain amount, paid by him in satisfaction of a judgment obtained against him for the alleged debt of George F. McLean, should not be credited upon a judgment obtained against him by the said McLean.</p> <p>The following are the facts of the case as they appeared in the court below: — ■</p> <p>George F. McLean, the lessee of certain timber lands, made a contract with R. B. Little to saw the timber on the lauds. Little accordingly took possession of the tract and manufactured a large amount of lumber. Before he was paid, McLean sold a portion of the lumber to Bindley, the appellant, and it was delivered to him upon the understanding between all these parties that Little’s saw bill should be paid out of the proceeds of sale.</p> <p>Numerous complications arose about McLean’s right to the lumber, resulting in several suits by McLean and other claimants against Bindley. At the same time suit was brought by Little against Bindley, for the balance claimed to be due him on account of his services in sawing the lumber. To all these cases various defences were made by Bindley, arising out of the special circumstances of ea-ch case, and notice given by him of the Little suit to McLean. The result in the McLean case (the one out of which the present appeal arises) was a verdict for the plaintiff for $700. After the recovery of judgment in that case the suit of Little against Bindley was tried before a referee, resulting in an award against Bindley for $661.53. After the recovery of the latter judgment, Bindley filed his petition in the McLean case, setting forth the facts and avering that the amount of the Little judgment should be properly paid out of the money due McLean for the lumber, as it was a charge against said lumber and one for which a lien had existed in. favor of Little, which had been transferred to the purchase money by agreement of all parties. He subsequently filed an affidavit averring that he had paid the Little judgment. The court below was asked to mark a credit upon the judgment to the extent of the judgment paid to Little.</p> <p>The following is the petition of Edwin Bindley:—</p> <p>The petition of Edwin Bindley, the defendant in the above named case respectfully represents: That in this case judgment was obtained against him by George F. McLean, the plaintiff, for $700 and costs, being a balance claimed to be due on account of the purchase of certain lumber by said defendant from said McLean.</p> <p>That one B. B. Little, for use of Douglass and Keally, brought suit against the defendant, claiming that they were entitled to be paid a certain sum of' money for the sawing of timber and manufacturing of lumber, which said McLean sold to said Bindley, claiming that by agreement among the parties they agreed to waive their lien for their said saw bill and work, and to be paid out of the proceeds of the said sale to said Bindley.</p> <p>That said suit was pending at No. 612, June Term, 1884, in your honorable court, and was referred by consent of parties to B. B. Petty, Esq.,'as referee, without exception or appeal, and the said referee did, on the 12th day of March, A. D. 1886, file his award, finding for the plaintiff in the sum of $661.53.</p> <p>Your petitioner represents that this award against him is for the work done by said Little in the manufacture of said lumber, as aforesaid, and based upon the claim by said Little, 'that it was to be paid bjr said Bindley out of the purchase money due said McLean for said lumber, and pursuant to agreement with said McLean, and is in truth and fact a debt of said McLean, owing on account of lumber sold to your petitioner for the balance due, upon which the judgment in this present case was obtained, and your petitioner represents that, if he be compelled to pay to the plaintiff in this case the amount of his judgment, and also to pay to the said B. B. Little the amount of the award in the suit at No. 612, June Term, 1884, great injustice will be done to your petitioner thereby. .</p> <p>He therefore prays for an order, after notice to the said plaintiff in this case, granting to jrour petitioner a credit upon the judgment in this case for the amount of the award and costs in the suit at No. 612, June Term, 1884, when your said petitioner shall have paid the said award and costs in said last named case, and that execution be stayed in this case until such credit be entered.</p> <p>On filing this petition the court granted the following rule : And now, to wit, March 13th, 1886, the above petition presented in open court and on motion of Knox' & Beed, attorneys for petitioner, a rule is granted on plaintiff to show cause why the prayer of the petition should, not be granted. Execution to be stayed in the meantime upon the judgment in this case.</p> <p>To the petition of Bindley, McLean filed the, following answer:—</p> <p>The answer of George F. McLean for and in behalf of the equitable plaintiff in the above case to the rule of March 13tb, 1886, granted on defendant’s application to show cause why he should not be allowed a certain set-off, etc., respectfully represents:—</p> <p>First. That the award of said R. B. Pettj^, Esq., referee, referred to in defendant’s petition, is in'no wise binding upon plaintiff; that neither this respondent, nor the said equitable plaintiff, ever consented or agreed that the controversy between said Bindley and R. B. Little should be tried and determined before a referee; that the equitable plaintiff in this case died before the case of R. B. Little v. Bindley was referred to said R. B. Petty, Esq., and no notice of said case was ever given to his administrator.</p> <p>Second. That in fact said R. B. Little is and was, at the tjme he alleges said Bindlejr agreed to pay the saw bill referred to in the case of Little v. Bindley, indebted to said George F. McLean to an amount larger than the sum demanded by him from said Bindley, and said McLean has brought suit for the balance due him against said Little at No. 81, December Term, 1884, in the said Court of Common Pleas No. 1, which' suit is still pending and undetermined.</p> <p>Third. That in this case said Bindley failed to set up by way of defence any alleged liability on his part for or in behalf of said George F. McLean to the said R. B. Little, and final judgment has been entered in this case, and this court has no jurisdiction to disturb, or in any way interfere, with said judgment.</p> <p>After argument on this petition and answer, the court discharged the rule, whereupon E.dwin Bindley books this appeal, assigning for error the action of the court in discharging said rule.</p>

<p>1. Collateral inheritance tax accrues at Hie decease of the person whose estate, passing to collateral heirs or strangers is subject to the tax; and this is so whether the estate passes in actual enjoyment, directly or remotely upon the termination of an intervening life estate, or term of years.</p> <p>2. Although under the Act of March 11th, 1850, P. L. of 1849, 158, and its supplement of May 4th, 1855, P. L. 425, the remainderman may postpone the payment of collateral inheritance tax until he comes into possession, the time when the tax accrues is not changed by them.</p> <p>8. If the Commonwealth neglects to proceed to collect collateral in heritanee tax for a period of twenty years after the death of the decedent, a conclusive presumption of payment arises as to bona fide purchasers from those to whom the remainder in fee descended; and the lien theretofore existing in favor of the Commonwealth forthwith ceases as to such persons.</p> <p>4. The failure to commence proceedings for the ascertainment and ultimate collection of collateral inheritance tax due to the fact that there was no administration of the estate of the decedent, and thus the matter was not brought to the attention of the register creates no exception to the law limiting the right to commence such proceedings to a period of twenty years.</p> <p>5. The statute limiting: the right to proceed to collect collateral inheritance tax to a period of twenty years after it had accrued, is a statute of repose and should be construed in favor of bona fide purchasers.</p> <p>8. A. was siezed of an undivided one third interest in certain real estate, by his death a collateral inheritance tax accrued to the Commonwealth by the devolution of his undivided interest to his collateral heirs, his co-tenants. After his death partition of all of said real estate was made among his collateral heirs, his co-tenants. The purpart allotted to one of them was sold on a .judgment against himself by the sheriff, and a sum realized therefrom in excess of the amount needed to pay all of the collateral inheritance tax accrued upon all the real estate. The Commonwealth made no claim,on the fund on distribution for the collateral inheritance tax, and it was distributed to other liens. Held, (a) That the partition of said real estate did not have the effect of apportioning the lien of said collateral inheritance tax. (b) The lien of the whole of the. said collateral inheritance tax upon the whole of the real estate was divested by the said sheriff sale.</p>

<p>Appbal from the Court of Common Pleas, No. 2, of Aliegheny county. Of October Term, 1886, No. 157.</p> <p>Appeal of the Brush Electric Light Company and John E. Bidall from a decree of said court, dismissing a bill in equity, where they were plaintiffs and the Allegheny County Light Company was defendant.</p> <p>The defendant filed an answer to the plaintiffs’ bill upon which issue was joined. Thomas Herriott, Esq., was appointed Master in the case. He made the following report, from which the facts of the case appear:—</p> <p>The Brush Electric Company, one of the plaintiffs, is a corporation of the state of Ohio, and has its main office in the city of Cleveland, Ohio. This companj- owns or controls what are known as the Brush patents for electric arc lighting, and Messrs. Bidall and Ingold were the agents for the county of Allegheny, Pennsylvania.</p> <p>In the year 1881, the Allegheny County Light Company was about to engage in funfishing electric light to parties desiring it, in the cities of Pittsburgh and Allegheny; and, after some negotiations, an article of agreement dated the day of 1881, was executed, wherein the Brush Electric Company was the party of the first part, John E. Bidall and Eugene Ingold, partners, the parties of the second part, and the Allegheny County Light Company the party of the third part.</p> <p>This agreement provides, among other things, that the “ said parties of the first and second parts hereby give and grant to the said party of the third part the exclusive right, license and privilege, within and throughout the said cities of Pittsburgh and Allegheny, but not elsewhere, of leasing or furnishing for use, by or under a contract or agreement of lease with persons desiring to use the same lights, such as the apparatus made by the said party of the first part is designed or adapted to give.”</p> <p>The parties continued to deal under this agreement until the early part of the year 1883, when some disputes arose, and they attempted to make another agreement.</p> <p>The Allegheny County Light Company claimed among other things that it was and had been paying too much for the apparatus furnished it by the other parties to the agreement of Í881.</p> <p>Jno. E. Bidall, one of the plaintiffs, was during all this time one of the directors of the Allegheny County Light Company and its secretary ; a new secretary was afterward elected, but Mr. Bidall is still one of the directors.</p> <p>On the third of February 1883, the secretary of the Brush Company, Wm. F. Swift, came to Pittsburgh and met the directors of the Allegheny County Light Company and the differences between the parties were discussed in a friendly way for several hours and it was thought that a new agree-, ment was made. The following was then drawn up by George T. Oliver, one of the directors of the defendant company, and adopted by its directors:—</p> <p>“ Moved that the officers of this board enter into a new contract with Ridall and Ingold, agents, and the Brush Electric Company, providing that on all future purchases of all kinds, a discount of ten per cent, or such higher rate as is allowed to other lighting companies, purchasing from agents, be allowed this company; and that a rebate of ten per cent., in cash or stock, be allowed on all purchases of apparatus heretofore made, on condition that this company agrees to purchase or use no other arc light except that provided bjr the Brush Electric Company ; it being understood that the discount above stated is only to be allowed on apparatus and does not include storage batteries and incandescent lamps.”</p> <p>“Adopted.”</p> <p>When this resolution was adopted, both Mr. Ridall and Wm. F. Swift were present and, as secretary of the defendant, Mr. Ridall transcribed it on the minute book.</p> <p>After this meeting a blank agreement was sent to Pittsburgh by the Brush Company, but this not being satisfactory to the Allegheny County Light Company, its attorney drew a new agreement and this was sent to Cleveland, but was changed in many particulars by the officers of the Brush Company and returned to Pittsburgh.</p> <p>The correspondence between the Brush Company and the Allegheny County Company was, on the part of the Allegheny County Company, all conducted by Mr. Ridall, its secretary; the contract, as changed by the Brush Company, was presented by him at a meeting of the board of directors of the defendant company, and the attention of the directors was called to the fact that the Brush Company had not returned sufficient stock to pay the rebate of ten per cent, on past purchases of apparatus. There is no testimony as to any reference being made to the changes made by the officers of the Brush Company in the contract sent to them.</p> <p>The new contract was not executed bj'- the Allegheny County Light Company at this meeting, but was laid aside until the balance of the stock was returned by the Brush Company. The stock being received, Mr. Ridall then told Mr. H, H. Westinghouse, the president of the defendant, that the contract was all right, and on behalf of his company, he, Mr. Westinghouse, executed it.</p> <p>This contract was accessible to the directors of the defendant company, but it does not seem that any of them, except Mr. Nidal!, ever read it before it was executed.</p> <p>The parties continued to deal with each other for, about a year, when, at a meeting of the directors of the defendant, held in March, 1884, the question of "the price of carbons was raised; some members claimed they could be bought cheaper than the Brush Company was selling them. Mr. Ridall claimed that the defendant was bound to buy its carbons through him from the Brush Company; and, it seems, then for the first time it was discovered that there was a difference between the resolution of February 8d, 1888, and the contract of March 31st, 1883. Th',e resolution did not expressly authorize the officers of the defendant to buy its carbons from the Brush Company, while the contract, as signed, did obligate the defendant to do so; hence this dispute.</p> <p>In May, 1885, the parties to this cause agreed to submit all matters in controversy, arising out of the agreement of March 31st, 1883, to Wm. Bakewell, as referee, but before his award was made the defendant revoked the submission. I do not •think this has anything to do with the merits of the cause, except as to the question of costs.</p> <p>After the defendant had thus revoked the submission to Mr. Bakewell, the plaintiffs in this case-; file their bill, in which they allege, among other things, the making of the contract of 1881 and the subsequent contract of March 31st, 1883; that the defendant is bound by said contracts to buy all its apparatus and carbons from the plaintiffs, and allege that it has not done so, but has itself engaged in constructing apparatus and has bought its carbons from others than the plaintiffs, and intends to continue so doing. The bill then prays that specific performance of the said contracts may be enforced, and an account, and that discovery maj^ be made by the defendant of the amount of carbons, arc lights or apparatus bought by it from others than the plaintiffs, and also of all commutators, apparatus, machinery or accessories, or definite parts thereof, made by it or by others than the Brush Electric Company. The defendant, in its answer, admits the making of the agree..ment of 1881, but claims that it was induced to sign the agreement by misrepresentations of the plaintiffs; it denies that it is making any apparatus or machinery described in that agreement. The answer also alleges that having discovered the alleged misrepresentations of the plaintiffs, which induced the signing of the agreement of 1881, and that the prices charged under this agreement were unfair, the defendant proposed to discontinue all further purchases from the Brush Company or its agents.</p> <p>That after this the directors of the defendant and the secretary of the Brush Company met on February 3d, 1883, when the differences were discussed and the resolution of February 3d, 1883, above quoted, was adopted by the directors of the defendant and was approved by Mr. Ridall and Mr. Ingold, who were both directors of defendant and agents of the Brush Company, and was also approved by Mr. Swift, the secretary of the Brush Company.</p> <p>That the contract of March 31st, 1883, was not drawn pursuant to the resolution of February 3d, 1883, but without any authority the word “ carbons ” was inserted in it, and -that this change was not known to any officer or director of defendant, except Mr. Ridall, until some time in 1884; that said Ridall was business manager of the defendant and undertook to have the agreement prepared in accordance with the resolution, but did not do so, and that as soon as any of the officers of the defendant learned the terms of the contract the defendant refused to respect or be bound by said last mentioned agreement. The defendant also claims that the bill does not disclose any ground of equitable relief.</p> <p>The testimony of the plaintiffs does not show that the defendant bought any new machinery from other than the plaintiffs; it does show, however, that when parts of the machinery bought fronv the plaintiffs would wear out the defendant would make these parts and fit them in the old machinery; this was the case with parts of the lamps that would burn out, these would be taken out, filed up and replaced, also parts of the' commutators would wear out or burn out; the burnt-out wires would be replaced, and other parts that were worn out would be replaced when unfit for use.</p> <p>In Wilson v. Simpson, 9 How., 109, the difference between repairs and reconstruction is discussed, and the repairs in this case clearly come within the rule there laid down.</p> <p>Besides, Mr. Ridall knew that this work was done by the defendant and never made any objection to it, and had similar work done for himself in his own private business.</p> <p>There is not sufficient in this branch of the plaintiffs’ case to justify any decree.</p> <p>The execution of the contract of March 31st, 1883, is admitted, and all the testimony offered by the defendant, in relation thereto, is objected to as incompetent and irrelevant. The Master, however, thinks that if the defendant can prove the matters alleged in the answer, in regard to the making and signing of this contract, it has a clear right to do so.</p> <p>If the parties came to a new agreement on February 3d, 1883, the resolution of that date does not express it.</p> <p>Mr. Bidall says this resolution might include carbons, but he does not think “carbons” are included in “apparatus.” Mr. Swift, and also Mr. Caldwell, understood the resolution to include carbons, while Mr. Oliver and others of the defendant company were just as positive that carbons were not included in what the defendant was obliged to buy from the plaintiffs.</p> <p>The defendant also was to receive a discount of ten per cent, on all purchases of apparatus heretofore made, and in computing the amount due for this rebate it does not seem to have suggested itself to any one that carbons were included, at least the Brush Company did not include a rebate on carbons, and the defendant did not ask it.</p> <p>The master is therefore of the opinion that the plaintiffs thought that defendant had agreed to buy carbons exclusively from them, and that the defendant’s officers, with one exception, did not think so, and further, that, in the light of the rebate allowed at the time on past purchases as well as the words of the resolution, the word “apparatus” does not include carbons. It follows, therefore, that at a meeting of February 3d, 1883, the parties never came to any common understanding, and there was no contract then made between them.</p> <p>The further question remains, is the agreement of March 31st, 1883, binding on the defendant?</p> <p>It is based on the resolution of February 3d, 1883, at least ■the plaintiffs knew the extent to which that resolution authorized the defendant’s officers to bind it.</p> <p>The secretary of the Brush company was present when it was adopted and knew its contents, and Mr. Bidall was secretary of the defendant and transcribed it on the minutes; a contract is then prepared by defendant’s attorney which does not include, among the things to be bought from the plaintiffs, carbons. This contract is sent by Mr. Bidall to the Brush company; it is changed by the president and secretary of the Brush company so that it will include carbons, and returned to'Mr. Bidall. He, very properly, lays it before the defendant’s directors and reports that the Brush company has nob returned enough stock to pay the rebate agreed upon.</p> <p>There is no evidence that he had any notice or knew of the change made in the contract in regard to carbons, nor did any other officer of the defendant know of this until March, 1884.</p> <p>In March, 1883, Mr. Bidall occupied the relation of agent for the Brush company, and was also a director and secretary of the defendant. If he knew of the change made by the Brush company and then told Mr. Westinghouse that the contract was all right, he was false to his duties to the defendant; while if he did not know of it, when it was his duty to see that it was drawn in accordance wifclr the resolution, it would not be strange if the other officers of the defendant did not discover it, especially when this branch of the business was attended to by Mr. Ridall.</p> <p>The Master, therefore, thinks that the officers of defendant did not intend to bind the defendant in the manner claimed, and that the contract of March 31st, 1883, is not such a contract as, signed in this peculiar way, a court of equity should enforce by injunction.</p> <p>It is well known that in equity practice it requires a much stronger case to enforce specific performance-than to resist it, and that specific performance is not a matter of absolute right to either party, but is the subject of a sound discretion: Willard v. Taylor, 8 Wall., 565 ; Dalzell v. Crawford, 1 Par., 37.</p> <p>It is also well settled that the court will not decree specific performance in cases of fraud or mistake: see Eastman v. Plumer, 46 N. H., 464, and in many other cases when it would be against the conscience of the court.</p> <p>In this case the contract of March 31st, 1883, was executed by the defendant’s officers without any authority, and this lack of authority was known to the plaintiffs, to Mr. Ridall as defendant’s secretary, and to Mr. Swift the secretary of the Brush company, which is notice to the company itself; the contract was disavowed by the defendants as soon as it knew its true character.</p> <p>The defendant, however, has received from the Brush com: pany fifty-five hundred dollars of stock as part of the consideration of the agreement of March 31st,. 1883; this stock it certainly has no right to hold and still refuse to' abide by the agreement. It has made no offer to return the stock to the Brush company, neither has any demand been made for it by the Brush company ; as no special injury has been shown to have been caused by this delay in returning the stock, the Master is of the opinion that-if it is returned to the Brush company this bill should be dismissed.</p> <p>It is strenuously insisted by the defendant’s attorney that the bill does not disclose sufficient reasons for equity taking jurisdiction in this case, and many citations are furnished to sustain his position.</p> <p>While the margin may be narrow, yet the Master thinks that the plaintiffs’ remedy at law is not complete, adequate and satisfactory and the damages sustained by plaintiffs can be much more readily and accurately found by a Master than by a jury.</p> <p>For this reason he thinks that this court should assume jurisdiction to decree an account if the defendant should fail to return the stock as above suggested.</p> <p>The question of costs remains to be disposed of.</p> <p>In 1885, there was prepared in the office of the defendant’s attorney a paper by which, as above stated, all this controversy was referred to Wm. Bakewell, this agreement to refer was not drawn by Mr. Rodgers himself, but was supposed by him to include all matters included in the present case. After the referee had taken the testimony of all parties and the case had been argued before him it was discovered that the agreement of reference was not broad enough to include the facts connected with the execution of the contracts,' and the submission of the referee was revoked by the defendant.</p> <p>There is no question raised about the right to thus revoke the reference, but as the parties had gone to the expense and trouble of once trying the case, and the agreement of reference was that of the defendant, it would seem equitable to the Master that the costs of this case should be put on the defendant.</p> <p>To this report both the plaintiffs and the defendant filed exceptions. The following are the defendant’s exceptions:</p> <p>1. The Master erred in not finding that the plaintiffs had a full, complete and adequate remedy at law, and in not recommending that the bill be dismissed on that ground.</p> <p>2. The Master erred in recommending that the costs be paid by defendant.</p> <p>The court, Ewing, P. J., filed the following opinion, sustaining the defendant’s exceptions.</p> <p>The plaintiffs have no ground for complaint as to the Master’s findings of fact. The evidence fully sustains the Master. He has taken the most favorable view for the plaintiffs that the testimony warrants.</p> <p>Had he found, from the evidence, that the insertion of the word “ carbons ” in the supplementary contract of 31st March, 1883, and the procuring it to be signed by the president of defendant company in the face of the resolution of the board of 3d February, 1883, without calling his attention to the change, was a fraud on the defendant company and not a mere mistake, the court could not have said that his conclusion was error.</p> <p>The Master finds that there has been no violation of the terms of this contract, by defendant, in regard to making commutators as charged in the tenth section of the bill.</p> <p>This leaves the complaint substantially this, namely: That on March , 1883, the defendant, for a consideration of the surrender to it of $5,500 of its stock held by plaintiffs, agreed, inter alia, to buy its supply of carbons from the plaintiffs, and that it has violated its contract by purchasing its supply, in part, elsewhere, to the loss and damage of the plaintiffs, and that it intends to continue to so violate its contract. They allege a loss of profits on tlie manufacture and sale, and the encouragement of rivals in business.</p> <p>The fact that rivals may be encouraged in business is not a meritorious complaint on which to found a claim for relief in equity, under the circumstances of this case. The profits lost by the failure of defendant to purchase its carbons from the plaintiffs, or the damages, by reason of the alleged breach of contract, are not more difficult of ascertainment in a common law action than are most cases of unliquidated damages. It is probable that one suit at law for damages would end the contentions, even if after an adverse decision to defendant in such a suit it should continue to purchase its carbons from other than the plaintiffs, we are unable to see any such damage to plaintiffs as to require the interposition of a court of equity to decree a specific performance of the contract, or to enjoin the defendant from making such purchases. The question of jurisdiction in equity, under tlie circumstances of this case, seems to us to be ruled by Grubb’s Appeal, 9 Norris, 228; Clark’s Appeal, 12 P. F. S., 450; Koch, P. B. Appeal, 12 Norris, and kindred cases, and ruled against the plaintiff.</p> <p>The circumstances of this case and the relations that Mr. Ridall occupies as to the defendant, are not such as to require a court of equity to exercise any discretionary power in the case.</p> <p>For the reason that the plaintiff's have an adequate remedy at law, the bill of complainants must be dismissed; costs to be divided one half to plaintiffs, one half to defendant.</p> <p>The following decree was accordingly entered:'</p> <p>And now, July 3d, 1886, this cause having been fully argued before the court by the counsel of the respective parties, and the cause fully considered, it is now ordered, adjudged, and decreed that the plaintiffs’ bill be and is hereby dismissed, without prejudice, and that the parties, plaintiffs and defendant, each pa}r one half the costs of this suit.</p> <p>The plaintiffs thereupon took this appeal assigning the decree for error, inter alia.</p>

2, of Allegheny county: Of October Term, 1886, No. 165. Ejectment for the undivided three fourths of the undivided one half of one hundred and thirty-three acres of land situated in Allegheny county brought by Samuel J. Jones and Hattie Jones his wife, in right of said Hattie Jones, George L. Rose and.

2, of Allegheny ■county: Of October Term 1886, No. 163. This was a petition on part of the Commonwealth ex rel., James W. Friend & Co., praying for a writ of mandamus against The Central District and Printing Telegraph Company. .On this petition a rule was- granted on the defendant to show cause why a writ of mandamus should hot be granted. On the return day of the rule an alternative mandamus was awarded and issued.

<p>Error to the Court'of Common Pleas, No. 1, of Allegheny county: Of October Term, 1886, No. 171.</p> <p>This was a feigned issue, framed to determine the ownership of certain machines for making paper boxes, wherein Charles Buckley was plaintiff and P. Duff & Sons were defendants.</p> <p>The facts of the ease appear from the following opinion of the court. Stowe, P., J., directing judgment to be entered for the defendant non obstante veredicto:</p> <p>On the trial of the case the following facts were proven and admitted, viz.:—</p> <p>That on the 1st of July, 1872, Charles Buckley, the plaintiff, sold his paper box manufactory to the firm of Greaves & Marland, taking, in payment therefor, judgment notes. The purchasers paid all these notes except the last one, which was for $358.33, maturing July 1st, 1874. . On April 7th, 1875, the purchasers having failed to pay this note for three hundred and fifty-eight dollars and thirty-three cents, ($358.33), an arrangement was effected by which Greaves & Marland gave to Buckley a bill of sale of certain paper box making machines, being a part of the stock ancl fixtures originally sold to them by Buckley, and took from the said Buckley a lease of said machines at a fixed rental. The lease is as follows :—</p> <p>“I, Charles Buckley, agree to rent Greaves & Marland one Clark’s machine, one Dennison machine, one corner cutter, one Bates’ oval cutter, and two pairs of Brombacker shears, now in the third story of house No. 92, Third avenue, in this city, for the sum of fifty cents per week, which they agree to pay on the 'first Monday of each and every month from this date.</p> <p>“Pittsburgh, April 7th, 1875.</p> <p>[Signed,] “ Greaves & Marland.</p> <p>“ Charles Buckley.”</p> <p>The unpaid judgment note for $358.33, was then cancelled, and the machines remained as before, in the possession of Greaves & Marland.</p> <p>Under this arrangement Greaves & Marland continued business as before, aud under the same business sign, until the withdrawal of Marland from the firm. The machines remained in the use and possession of Greaves & Marland continuously from the sale by Buckley to them in 1872, until the sheriff’s levy upon them in this case, December, 1882, at the suit of P. Duff & Sons, the defendants, to whom Greaves, successor to Greaves & Marland, had given a judgment note for an indebtedness accruing some years after the lease to Greaves & Marland of the machines now in dispute. Greaves & Marland paid to Buckley the fixed rental for said machines, two dollars per month, from April, 1875, until the levy on the same in 1882. Buckley kept the machines insured for the same period, as his property. There was no evidence that, at the time of the transaction of April 7th, 1875, Greaves & Mar-land were indebted to any other persons than to the plaintiff, Charles Buckley.</p> <p>Under the above admitted facts, the court directed the jury to find a verdict for the plaintiff, subject to the opinion of the court on a question of law reserved, which question is: “ Was the transaction of April 7th, 1875, by which the machines were assigned and transferred to Buckley, fraudulent in law as to creditors.</p> <p>The transaction of April 7th, 1875, was, we think, clearly a re-sale of the machines by Greaves & Marland to Buckley, the plaintiff. There was no change of possession in fact, nor any reason shown why there .could not be. Nothing was done but giving a bill of sale to Buckley and taking a lease from him. The machines remained in the possession of Greaves & Mar-laud just as they had done before, and their business was carried on just as it had been before the transfer, down to the-time of the levy by the sheriff o*n the writ of the defendants’ creditors. We think this case is ruled by Clow v. Woods, 5 S. & R., 278; Cunningham v. Neville, 10 S. & R., 201; Babb v. Clemson, 10 S. & R., 419; Stuper v. Eckart, 2 Wh., 302Hoofsmith v. Cope, 6 Wharton, 53; McBride v. McClelland, 6 W. & S., 94; Stark v. Ward, 3 Pa. St., 328 ; Milne v. Henry, 40 Pa. St., 352; Henry v. Milne, 43 Pa. St., 418; and that class of cases which hold that a transfer of personal property unaccompanied by a corresponding change of possession, is void par se. as to creditors.</p> <p>In Cunningham v. Neville, 10 S. & R., 201, the court held in an opinion by C. J. Gibson that, “where goods assigned are susceptible of delivery, a mere symbolical delivery is not sufficient to exempt .the case from the charge of legal fraud,-if the assignor retain possession.”</p> <p>In McBride v. McClelland, 6 W. & S., p. 94, the court held that “ a symbolical, constructive or temporary delivery of personal property is not'sufficient to change the ownership as to creditors; there must be an actual delivery at the time of the transfer, and a continuing possession; otherwise, the sale, although bona fide as between the parties themselves, is fraudulent in law.” And the court further says, in its opinion: “ In order to make a transfer of personal property available against creditors, ....'. it must be accompanied by a change of possession at the time, or within a reasonable time thereafter. The change of possession must be bona fide, not colorable — clear, unequivocal and exclusive. The rule is intended to prevent fraud, and avoid the danger to creditors, by giving a man a false and delusive credit.....and how is it possible that a change, merely for a single night or day, can answer the purpose, and advise the public.of the change of ownership in the property. It 'is not sufficient that the assignor give to the assignee a delivery, which may be symbolical, or constructive, or a temporary delivery, and then take the articles back into his own possession, and keep and use them just as before. This is not the possession in the assignee which the law requires. There must be not only a delivery of the thing at the time of the transfer, but a continuing possession, and that must be shown by the claimant.</p> <p>So Chief Justice THOMPSON, in delivering the opinion of the court, in Milne v. Henry, 40 Pa. St., 358, says:—</p> <p>.«In Young v. McClure, 2 W. & S., 147, this court said, following established doctrine and developing nothing new: “The question, however, is not in these cases (of retained possession by a vendor), whether under all the circumstances, the transfer is in good faith, and .without design to cover the property, or to hinder or delay creditors. It is an inflexible rule, which makes it fraud per se, if the possession does not follow, as well as accompany, the transfer: Clow v. Woods, 5 S. & R., 275; Babb v. Clemson, 10 S. & R., 419; Carpenter v. Moyer, 5 Watts, 485 ; Hamilton v. Russell, 1 Cranch, 309.” If it was a fraud in law, without regard to the intent of the parties, it becomes a question for the court and not for the jury to decide : Dornick v. Reichenbach, 10 S. & R., 84; Carpenter v. Moyer, 5 Watts, 483. .... See also, 6 Casey, 639; 6 Harris, 113; and particularly Twyne’s Case, 1 Smith’s Leading Cas., 47, 5th ed. Am., note; where this whole subject is fully and learnedly examined, and the law stated in accordance with the principles here declared.</p> <p>In our opinion, there having been no such change of possession as is required by law, nor of which the property was susceptible, the transaction of April 7th, 1875, by which the machines were assigned and transferred to Buckley, the plaintiff, was fraudulent in law, and void as to creditors ; and judgment must be entered for the defendants, non obstante veredicto.</p> <p>The plaintiff thereupon took this writ, assigning for error the entry of the judgment for the defendant non obstante veredicto.</p>

<p>1. Any words spoken, or any acts done, by a client in the presence of his 'attorney and in the course of his employment, are privileged, and. may not be proved by the testimony of the attorney without the consent of the client.</p> <p>2. An agreement by which one places his personal property in the hands of another without any obligation of sale on part of the one, or the right of purchase at any time in the other, is not a conditional sale but a bailment.</p>

<p>Error to the Court of Common Pleas No. 1 of Allegheny county: Of October .Term 1886.</p> <p>Ejectment by Herbert A. Johns against C. P. Tiers and G. W. Irwin, for lots 1, 2 and 3 on Johns’ plan, Pittsburgh. Plea, not guilty.</p> <p>In 1879, Herbert A. Johns, the plaintiff, who was then a minor, was the owner of lots Nos. 1, 2' and 3 in Johns’ plan, Seventeenth ward, Pittsburgh. He was also the owner of other valuable real estate, and all of it, including lots Nos. 1, 2 and 8, was encumbered by tax and other liens. Some of the tax liens were filed before the property was subdivided into lots, and required .an almost impossible apportionment, and a municipal lien, under the Penn Avenue Act, was filed against an entire frontage, and besides being disputed was, in other respects, difficult of adjustment. Under the circumstances the title was so much clouded as to be unsalable.</p> <p>His guardian, Levi Bird Duff, and his brother, L. E. Johns, after consultation as to the disposition of the property, concluded that the best thing to do would be to sell lots Nos. 1, 2 and 3 and to make a title to the purchaser' by means of a sale for taxes on a city lien, which was then threatened. Accordingly the tax sale was allowed to proceed, and at the' sale L, E. Johns bid the lots in for the sum of $150, in the name of his wife, Y. M. Johns. Shortly after the sale, and before the sheriff had made a deed to the purchaser, L. E. Johns sold the three lots to the defendants, C. P. Tiers and G. W. Irwin, for the sum of $2,250, cash. At the time of the sale L. E. Johns explained to the defendants the condition of plaintiff’s property, that the sale was for his benefit, and how title was to be made. Five dollars was paid on account, and L. E. Johns gave the defendants a receipt, of which the following is a copy:</p> <p>“Received from C. P. Tiers and G. W. Irwin the sum of five dollars on account of the sale of lots Nos. 1, 2 and 3 on Main street, Seventeenth ward, and extending back 100 feet to a twenty' feet alley, being on account of $2,250, to be paid in cash upon the examination of the title, if good, in Johns’ plan, and upon receiving guardian’s agreement on non-redemption of H. A. Johns, minor. L. E. Johns.</p> <p>“ March 13th, 1880. “ V. M. Johns per L. E. Johns, Ag’t.”</p> <p>For the purpose of carrying out the agreement of sale and to vest the title in the defendants, the vendee, L. E. Johns’ went to the sheriff’s office and substituted C. P. Tiers for Y. M. Johns as bidder, and Tiers paid the sheriff the bid and took a deed for the lots. The title was not yet complete, for the lots were subject to redemption for a year. To enter into an agreement of non-redemption with Levi Bird Duff, the guardian, C. P. Tiers and L. E. Johns visited him at his office, where it was agreed that instead of giving a written stipulation, not to redeem, the guardian should permit the time for redemption to expire, whereby a complete title would be vested in the defendants according to the terms of the receipt. The time for redemption having expired, Levi Bird Duff, the guardian, called upon C. C. Dickey, Esq., attorney for the defendants, and requested payment of the purchase money. It was still objected by Mr. Dickey that the minor’s right of redemption did not expire until he arrived at his majority. After considerable parley an action of ejectment was brought by Tiers against the guardian to try the title. Subsequently a ease stated was agreed upon, and submitted to the court for its decision. Judge Collier., before whom tlie case was argued, decided that the tax sale divested the.title of the plaintiff and vested it in C. P. Tiers, one of the defendants. Notwithstanding this decision Mr. Dickey .still objected to the title and desired to have the Supreme Court pass upon it. The guarddian, thereupon, at the request of the defendants and at their expense, took a writ of error and removed the case to the Supreme Court, where the judgment of the lower court was affirmed.</p> <p>The guardian then called upon Tiers to pay for the lots, which he refused to do, and suit was brought by the guardian against Tiers and Irwin for the purchase moneju Tiers filed an affidavit of defence setting up the title to the lots acquired at tax sale, and denying any contract with the guardian. This suit was set down for trial, but before it came to trial, the minor came of age, and the guardian took a nonsuit.</p> <p>The plaintiff came of age on the 5th day of February, 1885, and on the 16th day of March, 1885, he brought this suit. The defendants again set up the tax title in bar of plaintiff’s recovery, and after hearing the whole of the evidence the court directed the jury to find a verdict for the defendants. As to the manner in which the defendants acquired title to the lots the evidence was clear and undisputed. There was no evidence that they ever paid the purchase money to any one, or that they ever offered to pay it to the plaintiff or his guardian.</p> <p>The defendant presented, inter alia, the following point:</p> <p>2. That under the pleadings and evidence in this case the defendants are entitled to a verdict. ■</p> <p>The court in the genei'al charge instructed the jury:</p> <p>I fail to recall in the testimony anything to sliow that the plaintiff in this case was a party to the transactions between his brother’, L. E. Johns and his guardian, and these defendants. In order that he may maintain an action of ejectment it is needful that he should have at least the right of possession and I fail to discover anything in the case which would give him, under any circumstances a right to the possession of this property in ejectment, even if only to enforce the payment of the purchase money. [So I affirm the second point on the part of the defendants, that under the pleadings and evidence in this case the defendants are entitled to a vei’diet, and your verdict will accordingly be for the defendants.] (Assigned for error.)</p> <p>■ Verdict for the defendants and judgment thereon, whereupon the plaintiff took this writ, assigning for error that .portion of the general charge included within brackets.</p>

<p>Error to the Court of Common Pleas No. 2 of Allegheny 'Counly: Of October Term, 1886, No. 188.</p> <p>Ejectment by John Spencer and C. August Spencer, his wife, in right of said wife, and Margaret E. Spencer, Fred Waldschmidt, guardian of Henry Schumacher and Edward Schumacher, against John F. Jennings and Nicholas Freiehel, for 115 acres of land in Plum township, Allegheny county. Plea, not guilty.</p> <p>White, J., filed the following opinion, overruling a motion for a new trial, from which the facts of the case as they appeared on the trial, appear.</p> <p>Affirming defendants’ point raises the question whether under all the evidence the plaintiffs are entitled to recover.' The facts not being in controversy, there -was nothing for the jury to pass upon.</p> <p>Wm. A. Schumacher died in Butler county in 1858, leaving a widow and three minor children. The widow administered and took out letters in Butler county. The deceased owned a tract of land in Allegheny county. The widow presented a petition to the Orphans’ Court of Allegheny county, December 15th, 1860, setting forth the above facts, and that the said “real estate is subject to the lien of debts due by said decedent and not of record, and that it is for the best interest and advantages of those interested therein that the same should be mortgaged for the purpose of raising a sufficient amount of money to pajr off and discharge the debts due by the estate of said decedent,"’ and praying the court for authority to mortgage the same for seven hundred dollars. The same .day the court appointed a guardian, ad litem, for the minor children, and issued a citation upon him to answer within ten days. The same day the guardian answered that it was for the best interest of all concerned that the property should be mortgaged to. raise that sum, and made affidavit that there were' lien of debts not of record which required that sum of money. The same day the court made an order'“that the said Julia C. Schumacher (the widow), have authority to execute her bond with a mortgage to secure the same on the'"'real estate mentioned and described in the said petition, in manner and amount as prayed for in said petition, and that the money raised on said mortgage be applied according to law in discharge of such debts as -may be liens on said real estate, and the remainder of said money, if any, she shall hold subject to the future order of this court.”</p> <p>The widow was required to give bond with sureties in the sum of -S1,500, which she did.</p> <p>The “liens not of record” were not described in any manner; there was no schedule of debts, and no order of the court of Butler county on the subject.</p> <p>Two days later, December 17th, 1860, the mortgage was executed and acknowledged in open court. On the face of it, and as signed and acknowledged, it appears to be the individual mortgage of Julia Caroline Schumacher. The only thing to indicate otherwise is this clause inserted after the recital of title: “And this mortgage being made and executed by virtue of an order and decree of the Orphans’ Court of Allegheny county, aforesaid, duly made and entered on the 15th day of December, 1860, on the petition of said Julia Caroline Schumacher, as will more fully appear b.y the proceedings of said court as recorded at number of October Term, A. D. 1860.”</p> <p>A seire facias was issued on the mortgage in 1866, served upon Julia C. Jones, (she was then married to W. H. Jones,). judgment obtained, and the property sold to Joseph Logan, from whom the defendants derive title.</p> <p>The question of law arising upon these facts are : 1st, had the Orphans’ Court of Allegheny county jurisdiction to decree the mortgaging of the premises; 2d, were the proceedings regular and the mortgage valid as against the children of Wm. A. Schumacher?’</p> <p>The proceedings were intended to be under the Act of 18th April, 1853, (Price Act,) and it is contended by the defendants, that under that Act no schedule of debts was required, nor any order from the court of Butler county.</p> <p>The clause in the Act of 18th April, 1853, relied upon to sustain the proceedings, is the clause in the 2d section, which enumerates the eases in which a decree for sale or mortgage may be made, and is in these words : “Whenever a decedent’s real estate is subject to the lien of debts not of record.”</p> <p>Wlnit that clause means, or for what purpose inserted, is difficult to determine. ' Before the passage of that Act all the debts of a decedent, whether of record or not, were liens upon his real estate, and under the Act of 29th March, 1832, the Orphans’ Court had ample power to authorize the sale or mortgaging of the real estate for their payment. It was probably intended for some peculiar cases not embraced in the Act of 1832. It certainly was not intended to be a substitute for the Act of 1832, and to repeal all the wise restrictions and limitations of that Act. The two Acts being, pari materia, at least, so far as this case is concerned, they should be construed to harmonize with each other.</p> <p>The Act of 1832 authorized the Orphans’ Court having jurisdiction of the accounts of an executor or administrator, to decree a sale or mortgage of the real estate in that county, and where the real estate was situate in another county to make a decree authorizing the executor or administrator “-to raise so much money as the said court may think necessary from real estate situated in such county,” upon which the court of that county on proper application could order a sale or mortgage. And “section 33 ” saj-s: “No authority for the sale or mortgage of real estate, lying in the same or another county, should be granted until the executor, administrator, &c., shall have exhibited to the said court ” a schedule of the real and personal estate, and a sworn statement of the debts.</p> <p>None of these requirements were complied with in this case.</p> <p>Even if the Orphans’ Court of Allegheny county had jurisdiction, it is doubtful whether the decree or mortgage was in proper form to bind anything more than the widow’s interest in the land.</p> <p>If the case were sent back for a new trial and a verdict given for defendants, the same question would arise as now. As the case will have to go to the Supreme Court in any event, it may as well go up in the present form as any other, and save further trouble and expense to the losing party. Therefore a new trial is refused.</p> <p>During the trial the defendants made the following offer of testimony:</p> <p>Defendants’ counsel offers the record at No. 90, October T., 1860, Orphans’ Court of Allegheny county, in the estate of Wm. A. Schumacher, deceased, for the purpose of showing a petition and order of court directing a mortgage to be made of the property in dispute and the acknowledgement of the mortgage in open court.</p> <p>Objected to. First, because it does not appear anyr where in these proceedings that any application was made by Julia Caroline Schumacher, the administratrix of Wm. A. Schumacher, a resident of Butler county, and in which county she appears to have been appointed administratrix, to the Orphans’ Court of Butler county, or any order made by said court permitting the raising of money by a mortgage upon the real estate in dispute or for any purpose whatever, that the application for the mortgaging of the property in dispute in the county of Allegheny, in the first instance without the sanction or authority of the court of the domicile, to wit, the court of Butler county, renders the proceedings and mortgage given thereunder without validity, and makes the action of the Orphans’ Court of Allegheny county by reason thereof null and void. Second, the Orphans’ Court of Allegheny county had no jurisdiction of the administratrix, and could acquire none, either under the Act of 1832 or 1853, to order the mortgaging of the said premises under said application, or for any other reason; that the Orphans’ Court of Allegheny county had no authority to appoint a guardian ad litem of the heirs of Wm. A. Schumacher, deceased, for the purpose of ratifying or acquiescing in the jurisdiction of the Orphans’ Court of Allegheny county in making such order and decree, which should be done under the law by the appointment of guardians who should give bond to t.he Orphans’ Court of Butler or Allegheny county for such purpose; and third, as incompetent and irrelevant.</p> <p>Objection overruled, exception and bill sealed. (Third assignment of error.)</p>

90. The record showed the following : June 21st, 1884, petition of citizens of Sterrett township presented, showing that they labor under great inconvenience for want of a public road “from a point on the east line of the city of Pittsburgh, at the intersection of Waverly lane and Peebles avenue in said city, to a point on the Edgewood public road, at or near the Home for Aged Women. June 21st, 1884, the court appoints Charles Davis, Win.

<p>Error to the Court of Common Pleas No. 2, of Allegheny county: Of October Term 1886, Nos. 211, 212, 218 and 214.</p> <p>These were four actions of assumpsit by John J. Spearman, Branton H. Henderson, Walter Pierce, Joseph Forke-r and John Phillips, partners doing business as Spearman Iron Company against James Ward and Lizzie B. Ward bis wife on four promissory notes of Eliza B. Ward.</p> <p>Verdict for the plaintiffs in the sum of $5,230.66, subject to the opinion of the court on the following question of law reserved.</p> <p>1. That at the time the notes in suit were given the defendant, Eliza B. Ward, was a married woman, resided with her husband at Niles, Ohio, and owned a rolling mill and carried the same on in her name.</p> <p>2. That the notes in suit were given for iron purchased for the purposes of the mill in the manufacturing of sheet iron, and was made and payable in the state of Ohio.</p> <p>3. That on the 27th of July, 1883, the defendant made a voluntary assignment for the benefit of creditors of all her property in the state of Ohio.</p> <p>4. That she was one of the children of William H. Brown, a resident of the city of Pittsburgh, Allegheny county, Pennsylvania, who died in 1876, and from her father’s estate she received in 1881, in personalty and realty, about $900,000, the principal part of the said realty being in Pennsylvania.</p> <p>5. That the statutes of Ohio, on the subject of married women, are the Act of March 30th, 1874. and the sections of the Revised Code of 1880, copies of which are annexed hereto and made part hereof.</p> <p>The verdict is subject to the opinion of the court on the question of law reserved, to wit, whether under these facts and the law of Ohio in reference to married women, as evidenced by the statutes referred to and the decisions of the Supreme Court pf Ohio, the plaintiffs are entitled to recover in this action at law, and have execution against defendants’ property in this state.</p> <p>Revised Code of Ohio for 1880. Section 4996. A married woman cannot prosecute or defend by next frienct, but her husband must be joined with her, unless the action concerns her separate property, is upon her written obligation, concerns business in which she is a partner, is brought to set aside a deed or will, or to collect a legacy, or is between her and her husband.</p> <p>Section 5319. When a married woman sues or is sued alone, like proceedings shall be had, and judgment may be rendered and enforced, as if she were unmarried, and her separate property and estate shall be liable for the judgment against her; but she shall be entitled to the benefit of all exemptions to heads of families.</p> <p>An Act to amend Section 28 of the Code of Civil Procedure, passed April 18th, a. d. 1870. (O. L., Vol. 67, pp. Ill and 112.) Section 1. Be it enacted by the General Assembly of the state of Ohio, that section twenty-eight (28j) of the code of civil procedure be amended so as to read as follows:</p> <p>Section 28. Where a married woman is a party, her husband must be joined with her, except that when the action concerns her separate property, or is upon a written obligation, contract or agreement signed by her, or is brought by her to set aside a deed or will; or if she be engaged as owner or partner in any mercantile or other business, and the cause of action grows out of or concerns such business, or is between her and her husband, she may sue and be sued alone. And in all cases where she may sue or be sued alone, the like proceedings shall be had and the like judgment rendered and enforced in all respects as if she were an unmarried woman. And in every such case her ■ separate property and estate shall be liable for any judgment rendered therein against her to the same extent as would the property of her husband, were the judgment rendered against him; provided that she shall be entitled to the benefit of all the exemption laws of the state to heads of families. But in no case shall she be required to prosecute or defend by her next friend.</p> <p>Section 2. Said original section 28 is herebj1- repealed.</p> <p>Section 3. This Act shall take effect and be in force from and after its passage.</p> <p>The court entered judgment for the defendants non obstante veredicto, White, J., filing the following opinion:</p> <p>If the business had been carried on, and the notes given, in Pennsylvania no judgment could be obtained against Lizzie B. Ward. By the law of this state, which has been the law from its first settlement to this day, a married woman cannot enter into general mercantile or manufacturing business and cannot be held personally, or. her. estate be made liable for the payment of debts she may contract in the prosecution of such business. The policy of our law is to save her and protect her property from such hazardous adventures.</p> <p>But the plaintiffs contend that by the laws of Ohio a married woman may engage in such business and is personally liable for her notes, and as the contract was legal there, it may be enforced against her and her property in this state.</p> <p>I question the soundness of that position. It is true that the lex loci contractus governs as to the legality and construction of a contract. But the lex fori will not always enforce a contract because it was lawful where made. It will not be enforced by the courts of other states where the contract is against public morals or the public interests. The lex loci always governs as to the disability of minors, married women, etc., to contract; and sometimes it governs as to their ability to contract. But I do not think it should always govern. If so, the property in this state held by guardians, trustees, etc., might be swept away by contracts made in other states directly in conflict with our laws. Our laws save a married woman’s property from the debts or contracts of her husband and from her own imprudent acts. Shall we enforce contracts that deprive her of this protection ? We say she shall not engage in general business or bind herself or her estate by giving negotiable notes. If another state allows her to give such notes shall we enter judgment on them and. permita foreign creditor to sweep away her paternal patrimony, which we would not allow one of our own citizens to touch ?</p> <p>But passing that question, we come to the main contention in this case. It is denied, on part of defendant, that the laws of Ohio authorize married women to enter into general business and bind themselves personally for notes given; that the statutes on the subject (quoted in the reserved question) do not remove the common law disability of married women to make contracts (except in a few specified eases — not such a case as this), but where they do engage in business, and execute notes in carrying it on, the property they have in the state may be made subject to the pajunent of them, in order to prevent a fraud upon creditors.</p> <p>If that is the true construction of those statutes, then there is no general personal liability on which Mr^. Ward could be sued in this state; nor could her property here be made liable in either law or equity. The decisions of the Supreme Court of Ohio must decide the question.</p> <p>In the first place, it maj^ be observed that the sections of the code and the act embraced in the special verdict — being the statutory provisions on which the plaintiffs rely — refer primarily to the mode in which a married woman may sue or be sued, and incidentally to the effect of a judgment against her, “Iier separate property and estate shall be liable for the judgment.” But there is not a word in these sections or act in the way of" authorizing a married woman to make any contract. The argument of the plaintiffs is, that, because she may be sued in certain cases and a judgment obtained against her on which her property may be taken in execution, therefore she is authorized to make all such contracts and bind herself personally for all such debts. On this mode of reasoning (quoting the words of the sections), a married woman in Ohio may become a “partner” in any kind of business; may enter into any “ written obligation, contract dr agreement”; may “be engaged as owner or partner in any mercantile or other business ”; and if so, then, in Ohio, all the common law disabilities of married women are removed.</p> <p>That such was not the intention of the legislature of Ohio is manifest from another section of the code which expressly authorizes a married woman to “ make contracts for labor and materials for improving, repairing and cultivating ” her real estate, and leasing the same “for any period not exceeding three years ” : Sec. 3108.</p> <p>The Supreme Court of Ohio has repeatedly held that the provisions of the code referred to, sections 4496 and 5319, “ were not intended to enlarge or vary the liabilities of married women, but relate merely to the form of remedy”: Jenz v. Gugel, 26 Ohio St., 527; Allison v. Porter, 29 Ohio St., 136; Payne v. Thompson, decided March 23d, 1886, reported in The Weekly Law Bulletin and Ohio Law Journal of April 5th, 1886. A married woman’s common law disability to make contracts, remained in all cases, except where directly removed by statute. Accordingly it was held in Levi v. Earl, 30 Ohio St., 167, she could not enter into partnership with her husband, and re-affirmed in Payne v. Thompson, supra; in Alexander v. Morgan, 31 Ohio St., 551, it was decided that a partnership, in which an unmarried woman was engaged, was dissolved by her marriage, because a married woman has no capacity to engage in business as a partner. In McClelland v. Bishop, 42 Ohio St., 113, it was held that a joint note of husband and wife was the valid obligation of the husband alone.</p> <p>The proceeding in Ohio, under the Revised Statutes, to secure payment of a note given by a married woman, is not against her personally, or on the footing of a personal liability. It is rather a proceeding in rem — a petition and prayer to have the debt declared a lien upon certain described property, and make this same subject to the payment. It is based on the theory that when she contracted the debt, she intended to subject her separate property to its payment, and in equity the property should be made pay it. An ordinary suit against her on the contract cannot be sustained, or a general judgment' against her be obtained. If she has no property in the state, no action can be had against her. This is utterly inconsistent with the contention that the statutes give her capacity to contract and bind herself, or lrer property generally. At first the courts of Ohio held that before her separate property could be made subject to the payment of such debts, there must be evidence that she intended to make it subject.</p> <p>But the later decisions hold that the presumption is she so intended, and she will not be allowed to testify that such was not her intention : Avery v. Van Sickle, 35 Ohio St., 270; Patrick v. Little, 36 Ohio St., 79; Herscherzer v. Florence, 39 Ohio St., 525.</p> <p>In the very recent case above referred to, Pajme ©. Thompson, the law of Ohio as to the liability of married women, in eases like these, was stated by the plaintiffs’ counsel, as strongly perhaps against them as the statutes would justify: “It may be well to define what we mean when we claim that a married woman may be a partner. It is not contended that she is a partner in the same sense in which a man is a partner. A person sui juris who is a partner thereby makes himself or herself personally liable at law for all engagements contracted in the partnership business by any of the partners. This we do not claim to be true as to a married woman, but we do claim that a married woman majT embark her separate estate in trade, that this trade may be carried on alone or in conjunction with other persons, and that her separate estate may be charged in equity with the satisfaction of engagements entered into in the course of such joint trade, either by herself or her associates.”</p> <p>This statement of the law was virtually admitted by the court to be correct, but it was held that Mrs. Thompson’s property was not chargeable with the debts of the firm because she had no capacity to enter into a partnership, even with her husband.</p> <p>The Supreme Court of Ohio having held that the sections of the Revised Statutes relied upon by the plaintiff did not enlarge thtf powers of married women, but related merely to the remedy (Payne v. Thompson, supra), we have nothing left on which to sustain these actions. It will hardly be contended that we are bound to enforce the forms of remedy under the Ohio law; nor does it follow that if Mrs. Ward intended when she gave these notes to subject her property in Ohio to their payment she also intended to subject her separate real estate in Pennsylvania.</p> <p>We are of opinion that the law is with the defendants on the reserved questions. ■</p> <p>And now, July 31st, 1886, after argument by counsel on the questions of law reserved, and consideration thereof, it is ordered that judgment be entered, for the defendants on the same, non obstante veredicto, in each of the tour cases.</p> <p>Judgment was accordingly entered whereupon the plaintiffs took this writ, assigning the entry of the judgment for error.</p>

<p>Error to the Court of Common Pleas No. 1, oE Allegheny county: Of October Term, 1886, No. 221.</p> <p>Trespass on the case by William Y. Anderson and Nancy Cordelia Anderson, his wife, in right of said wife, against the Township of Crescent to recover damages for injuries, sustained through the alleged negligence of the supervisors of the road of said township, in nob keeping the public road in a passable condition.</p> <p>Plea, not guilty.</p> <p>The facts as they appeared on the trial of the cause before Collier, J., sufficiently appear in the opinion of the Supreme Court.</p> <p>The defendant presented the following points: 1. That the plaintiffs’ case shorvs a case of negligence on their side contributing to the injury. Answer. Refused. (First assignment of error.) 2. That the case fails to show any negligence on the part of the township. Answer. Refused. (Second assignment of error.) 3. That under all the evidence the verdict must be for the defendant. Answer. Refused. (Third assignment of error.)</p> <p>Verdict for the plaintiff in the sum of $1,500, and judgment thereon, whereupon the defendant took this writ and filed the above assignments of error.</p>

2 of Allegheny county: October Term 1886, No. 208. Ejectment by Iolia M. Reed and Lavina B. Reed by their guardian, Michael DeWalt, against Thomas Mellon and W. L. Scott for one undivided third part of fifty acres of land in Elizabeth township, Allegheny county, being a part of a larger tract of which Lewellen Howell, Sr., died seized.