Volume 115 — Pennsylvania State Reports

<p>Appeal from the Court of Common Pleas, No. 2, of Allegheny county: Of October Term, 1886, No. 266.</p> <p>Appeal of John Hancock from a decree of said court confirming the Report of the Auditor.</p> <p>The following are the material facts of the case as they appeared before the Auditor, R. B. Petty, Esq.</p> <p>H. S. Hancock, the execution defendant, having leased a certain two-story brick building situate in the Third ward of the city of Pittsburgh, known as Number 4, Master’s alley (otherwise styled Market alley), in which it was designed by the lessee to carry on the retail liquor business, entered into a contract with one, John T. Natcher, by which stated work was to be done and materials furnished in the making of additions to, and alteration and repairs in and about the building.</p> <p>The defendant having failed to meet the payment of the balance due the contractor, a mechanics’ lien was filed by him at No. 26, June Term, 1886, in the Court of Common Pleas, No. 1, of Allegheny county, for the sum of $1,327.54 against the interest of said Hancock as such lessee.</p> <p>Executions were subsequently issued by a number of creditors, John Hancock inter alia, and upon a sale of the leasehold by the sheriff the sum of $3,000 was realized. Of that amount $i,500 were paid upon prior executions and the balance was ordered into court for distribution. The Auditor distributed to Natcher the amount of his lien and the remainder to W. H. Holmes, one of the execution creditors, on account of his judgment. John Hancock filed exceptions to the Report of the Auditor. The court overruled his exceptions and confirmed the report, whereupon he took this writ, and assigned said action of the court for error.</p>

2, of Allegheny county: .Oí October Term, 1886, No. 139. Held: First, That where a municipal corporation is seeking to enforce an ordinance which is void, a Court of Equity has jurisdiction, at the suit of any person who is injuriously affected thereby, to stay its execution by injunction.

<p>Error to the Court of Common Pleas No. 2, of Allegheny county: Of October Term, 1886, No. 232.</p> <p>This was a petition in the name of the Commonwealth ex rel. Charles Reinhard, setting forth inter-alia that he had been duly appointed by the Court of Quarter Sessions of the Peace of Allegheny country, collector of taxes for the borough of Verona under the Act of June 29th, 1885, P. L. 187, to fill a vacancy in said office. That he qualified and entered upon the duties of said office; but that Michael Malloy Burgess of the borough of Verona and Samuel L. Barndollar, Charles Durning, John Cowan, P. L. Banrian, John P. Shoud, R. H. Kelley, Jr., and' H. Dubarry, councilmen of said borough, and James Marshall of said borough refused to deliver the tax duplicates to him for the collection of' the borough taxes as by law they were required to do.</p> <p>The Court directed a writ of alternative mandamus to issue. It was issued as directed. On the return day of the writ the respondents filed an answer denying the legal right of the said Reinhard to receive from them the tax duplicates for borough taxes averring further, inter alia, as follows :</p> <p>They aver that Section 13, of said Act of 25th June, 1885, provides inter alia, “ but this Act shall not apply to- any taxes, the collection of which is regulated by a local law,” and they aver that under the charter of the said defendant borough, which is made part of this answer, and the Act of incorporation of the borough of Birmingham, to-wit, “An Act entitled a further supplement to an Act entitled ‘An Act to erect Norristown, in Montgomery county, into a borough, and for other purposes,’ ” approved 1826, and the various supplements thereto to-wit: an Act approved 21st April, 1841, P. L. page 244, and the Act of 29th March, 1861, P. L., 224, and the other Acts of' Assembly which are supplements to the said Act of incorporation of the borough of Birmingham, and which under the provisions of the said Act of 10th May, 1871, are part of the charter of the borough of Verona, defendant, all of which said Acts of Assembly are hereby made part of this answer, and which are local laws within the meaning of said Act of Assembly, a system is provided for the collection of taxes levied by the Town Council of said borough of Verona, which is complete in itself, and is much more advantageous to the taxpayers of said borough, and under which the taxes so assessed can be collected more quickly and at less expense than under the said Act of 25th June, 1885. That by virtue of the power vested in them under the said charter of defendant borough, and the Acts “of Assembly herein above referred to, which are applicable to the borough of Verona, and in accordance with the mode heretofore pursued therein, they passed a resolution' directing said tax duplicate to be turned over to the treasurer thereof, by whom notice should be given by mail or otherwise to each taxpayer of tne said borough of the receipt thereof.</p> <p>After argument the court directed a mandamus to issue, filing the following opinion:</p> <p>The Act of 25th June, 1885, P. L. 187, providing for the election, by the qualified voters of each borough and township, of a collector of taxes, says: “ this Act shall not apply to any taxes, the collection of which is regulated by local law.” Sec. 13. ‘</p> <p>It is a general Act, applying to all boroughs and townships in the state, with no exception or qualification but the clause just quoted. It applies to boroughs, no matter when or how incorporated. The fact that the borough of Verona is not incorporated under the general Act of 1851, but by a special Act in 1871, does not, therefore, determine this ease.</p> <p>The phraseology of the excepting clause, “ any taxes the collection of which is regulated by local law,” seems to refer to the mode of collection, rather than the collector; to some special mode of collection, regulated by local law; either a special person to collect, or some special regulations as to time or place of payments, or special regulations for deductions, additions, &c.</p> <p>■ In none of these respects is the collection of borough taxes in Verona different from that in boroughs incorporated under the Borough Act of 1851. Under the special Act incorporating Verona, the Borough Council elect a collector, define his duties, and fix his compensation; and the Burgess issues his warrant authorizing him to collect. Under the Borough Act of 1st April, 1834, Sec. 8, (which was still in force for this purpose,) the council of all boroughs elected a collector annually ; under the 15th section, they had power to fix the compensation; under Sec. 6, of the Act of April, 1851, the Burgess issued his warrant to the collector. Nor were there any special regulations in its charter, or by subsequent enactments, as to the time or mode of payment of borough taxein Verona.</p> <p>The Act of 12th April, 1881, Purd. Dig., vol. 1, page’ 211, regulating the mode of collecting borough taxes, providing for deductions for prompt payment, &c., applied to all boroughs in the state, and had the same provisos as the Act of 25th June, 1885: “ Provided, that this Act shall not apply to any taxes the collection of which is regulated by a local law.” Evidently that proviso was intended to save only the local acts of any borough which covered the same subject; where the borough had a special law as to the mode of collection, times of payment,'deductions, &c.</p> <p>If this language exempts Verona from the Act of 1885, it excludes Verona from the benefits of the Act of 1881.</p> <p>The collector and the mode of collecting borough taxes in Verona, were precisely the same as in other boroughs. In no respect were her borough taxes “ regulated by local law.”</p> <p>We have nothing to do with the wisdom or propriety of the Act of 1885. It is the general law of the state, and it is our duty to enforce it.</p> <p>And now, Sept. 14th, 1886, this cause having come on for hearing, was fully argued by counsel; whereupon the court, after due and mature consideration therein had, (for that it appears that the said return by the defendants, made to the alternative writ is altogether insufficient,) do order and adjudge that judgment be entered for the Commonwealth, and the defendants, Michael Mallojr, Burgess, Samuel L. Barndollar, Charles Durning, John Cowan, P. L. Bannen, John P. Stroud, R. H. Kelley, Jr., and PI. Dubarry, couneilmen, and James Marshall, treasurer of the Borough of Verona, and their successors in office, be, and they are hereby commanded forthwith, to permit Charles Reinhard, collector of taxes; to have the tax duplicate of said Borough of Verona, for the fiscal year ending the first Monday of March, A. D. 1887, being for the taxes assessed by Ordinance passed the 29th day of March, A. r>. 1886, in said alternative writ mentioned, and it is further ordered that the defendants pay costs.</p> <p>The defendants thereupon took this writ assigning for error the judgment of the court awarding the peremptory mandamus.</p> <p>The Act of 25th June, 1885, is in conflict with Article III., Sec. 7, of the Constitution, which provides, “ The General Assembly shall, not pass any local or special law.....regulaiing the affairs of counties, cities, townships, wards, boroughs, or school districts,..... creating offices, or prescribing the powers and duties of officers in counties, cities, boroughs, townships, election, or school districts:” Davis v. Clark, 10 Out., 684.</p> <p>An Act to be general, must include all who .come within its purpose and scope: Snowden’s Appeal, 10 Norris, 424; Morrison v. Bachert, 2 Amerman, 328.</p> <p>Nor can it be sustained under the legislative power of classification. There are two kinds of taxes recognized: — 1st. Those levied in the, borough, etc., the collection of which is regulated by a general law. 2nd. Those, the collection of which is regulated by a local law.</p> <p>There is no attempt made to legislate for the latter, but only for the former; that regulated by a local law is absolutely and permanently excluded from the Act, and being in conflict with the constitution, because it is a local law, it is void and no effect can be given to any part of it: Davis v. Clark, supra.</p> <p>The Act of 25th June, 1885, is entitled, “An Act regulating the collection of taxes in the several boroughs and townships of this Commonwealth,” evidently meaning all the boroughs, etc., while the Act only provides for part of them, and is therefore in violation of Art. III., Sec. 3, of the Constitution, that “ no bill shall be passed except appropriation bills containing more than one subject, which shall be clearly expressed in the title.” It is conceded that if the provisions of the Act are germane to the title, it is sufficient; but it is contended that, as the provisions of the Act extend only to some of the boroughs, the title is misleading and the Act is void: Donnelly’s Appeal, 22 P. F. S., 192; Union Pass. R. R. Co.'s Appeal, 32 Id., 91.</p> <p>It is unconstitutional therefore, because • it is a local Act, 1st. Regulating the affairs of boroughs, etc. 2d. Creating an office, and prescribing the powers and duties of a borough officer. 3d. Because the title to it is misleading.</p> <p>In a ease reported since the printing of this paper book, viz., Appeal of the city of Scranton School District, 18 W. N. C., 261, this court held that the Act of 18th March, 1875, P. L. 15, which was an Act relating to the levying and collection of taxes, was unconstitutional; and reaffirming Davis v. Clark, supra, (Green, J.) say “All our recent decisions are to the effect that, if local results either are or may be produced by a piece of legislation, it offends against the Constitution and is void.”</p> <p>The borough of Verona is not subject either to the Act of April 1st, 1834, P. L. 163, nor to the general borough Act of 1857.</p> <p>Neither does the general borough Act of 1851, apply to de: fendant borough: Commonwealth v. Montrose, 52 Pa. St., 391; Borough of Verona’s Appeal, 32 P. L. J., 251; Dillon Mun. Corp., § 54.</p> <p>The Relator does not possess an adverse, specific legal right, because the local Acts above referred to are not repealed by the Act of 25th June, 1885. All Acts of Assembly are not repealed, but only “ general ” Acts, and repeals by implication are not favored. Special laws, conferring particular rights upon municipal corporations, are not repealed by subser quent statutes general in their character: Dillon Mun. Corp., § 54.</p> <p>In short, the Act is only intended to and does supersede those general Acts regulating the collection of taxes, and does not supersede any local or special Acts.</p> <p>Although a mandamus is a demandable writ of common right, yet it will be granted only in extraordinary cases, and where there would be a failure of justice. The applicant must establish a specific legal right as well as the want of a specific legal remedy: James v. Commonwealth, 13 Pa. St., 75; High Ex. Rem., §§ 450-507.</p> <p>— The Act of 25th of June, 1885, (P. L. 187,) regulates the collection of taxes in the boroughs and townships of the Commonwealth. It provides for the election of an officer to be styled “ Collector of Taxes,” and the Court of Quarter Sessions shall have power to fill, by appointment, all vacancies in said office.</p> <p>The excepting clause in said Act has reference to the mode of collection and not to the manner of'appointing collectors.</p> <p>The Act cannot, in anjr proper sense, be called a local Act. By legislation prior to the Constitution of 1874, the modes for the collection of borough taxes were two, viz.: special and general. In passing the Act in question, the legislature simply adopted a general system without interfering with certain special Acts already in existence. It cannot be contended with any show of reason that if the legislature thought proper to act it was bound either to repeal the special Acts and then pass a general statute, or to extend their provisions to all boroughs.</p>

<p>1. The action of the court below, in giving the conclusion of the argument to counsel for one side or the other, is not reviewable in error.</p> <p>2. Where a will has been written by a stranger who is by its terms the principal beneficiary, the burthen of proving that the testator was acquainted with its contents, and had an intelligent consciousness of the proportions of the whole to be taken by the beneficiary, rests upon him ; but where, as in this case, the will was written by the son of the testator, who was the principal beneficiary, the burthen of disposing these allegations rests upon the contestant.</p> <p>3. Where a will has been written by a son of the testator, who is, by its terms, the principal beneficiary, the burthen of proving that the testator was not acquainted with its contents, and had not an intelligent consciousness of the proportion of the estate to be taken, by the beneficiary, rests upon the contestant; but if the jury believe from the testimony, that the will was not read to the testator, nor by him, nor explained to him before its execution, nor read by him afterwards before his death, the burthen of showing that the will was drawn as directed by the testator, is on the beneficiary.</p>

<p>1. The Price Act, Act of April 18th, 1853, P. L. 503, and the Act of March 29th, 1832, P. L. 198, are not in pari materia. Under the former Act it is not necessary that the order for the sale of the real-estate of a minor be made by the court having jurisdiction over the account of the guardian of the minor.</p> <p>2. Where the sale of the real estate of a minor is made by decree of court, at private sale, under the Price Act, the Supreme Court will not inquire whether the sale was actually for the interest of the minor. The duty of full investigation before making the decree is vested in the Orphans’ Court, and the title of an innocent purchaser does not depend on the fidelity or .sound judgment of the judges malting the decree.</p> <p>3. Where jurisdiction in the Orphans’ Court to make a decree for the sale of the real estate of a minor under the Price Act attaches, as against all persons who are made parties, the purchaser’s title is unprejudiced by any error in the proceedings.</p> <p>4. The Price Act does not require that the decree for the sale of the real estate of a minor at private sale should be made in the presence of the president or law judge of the court. In the absence of evidence that a law judge was not present at the time of making the decree, it is not presumed that the court was held by judges unlearned in the law.</p>

<p>Error to the Court of .Common Pleas No 2, of Allegheny county : Of October Term, 1886, No. 223.</p> <p>This was an action of assumpsit by W. A. Shaw against the City of Allegheny to recover the amount of taxes paid by him to said city under protest.</p> <p>The plaintiff filed the following affidavit of claims which,, by agreement of parties, was submitted to the court, White, J., as a case stated.</p> <p>W. A. Shaw, the plaintiff, being sworn, saith that the defendant, the city of Allegheny, a municipal corporation under the laws of the state of Pennsylvania, is indebted to the plaintiff in the sum of $210.89, with interest thereon from July 9th, 1879,' and in the sum of $272.45, with interest from October 10th, 1879, together, at the date of the making of this affidavit, aggregating the sum of $652.12, for which sum with interest from this date and costs of suit, plaintiff claims judgment against the defendant.</p> <p>The facts upon which plaintiff bases his right to recover the above sums of money are substantially as follows, viz:</p> <p>First. In the month of July, 1878, plaintiff became the owner in fee of a piece of land containing about four acres, situate in the 7th ward of the city of Allegheny (the corporation defendant) in Allegheny county, Pennsylvania, at a sheriff’s sale thereof, made upon the 5th day of July, 1878, by the sheriff of Allegheny county, Pennsylvania, upon a levari facias issued at No. 145 of July Term, 1878, in the Court of Common Pleas No. 2, of said county, upon a scire facias at No. 412 of October Term, 1876, in said court, issued upon a mortgage covering said land made by one Francis Hartmeyer, the then owner in fee, to one Isaac M. Pennock for the sum of $10,000, dated and executed the 8th day of November, 1875, and recorded the 17th day of November, 1875, in Mortgage Book, vol. 212, page 189, in.the Recorder’s office for the county of Allegheny, and owned by the plaintiff at tire time'of said sale, the plaintiff having purchased said property at said sale for $50, which sum was applied to payment of costs. The plaintiff’s sheriff’s deed being duly acknowledged In Court of Common Pleas No. 2, aforesaid, on the 13th day of July, A. D. 1878, since which time up till lately, and within the last three months the plaintiff has been the owner in fee, and in the actual possession of the piece of land aforesaid.</p> <p>iSecond. On the 5th day of April, 1879, the city of Allegheny through its treasurer, David Mac Ferron, and its solicitor, Wra. B. Rodgers, under Sec., 6 of Act of Apr., 14, 1863, filed a claim of $173.92 at No. 4 of April Term, 1879, in the Municipal Lien Docket of Allegheny city, Common Pleas Court No. 2 of Allegheny county ; said claim being according to the certificate of the city treasurer filed therein for taxes assessed on Dr. Frank Hartmeyer for the year 1878, and which had been returned to said treasurer by the ward collector as uncollectible for want of goods and chattels. The items of said claim, as stated therein, are as follows, viz: •</p> <p>City taxes, . . . . $ 58.70</p> <p>Park taxes, ...... . 7.00</p> <p>Séwer taxes, . . . ... „ 11.88</p> <p>Poor taxes, ...... 14.68</p> <p>School taxes, ..... 36.69</p> <p>School building taxes, . . . 36.69</p> <p>Five per cent., . . . . • 8.28</p> <p>$173.92</p> <p>Said claim was filed for taxes which had been assessed and levied by the citjr of Allegheny prior to March, 1878, for the year 1878, against the property of said Dr. Frank Hartmeyer, afterwards purchased by plaintiff at sheriff’s sale, as aforesaid, and on the day of filing of said claim, judgment thereon was entered in the' case comformably to law for the amount claimed, to wit: $173.92 against said Hartmeyer, and after-wards on July 19th, 1879, an execution thereon was issued, and the property aforesaid of this plaintiff, and which had formerly been the property of said Dr. Frank Hartme3rer, levied upon by the sheriff of Allegheny county, and advertised for sale on the first Monday of July, 1879, the costs of which judgment and execution amounted to the sum of $36.95.</p> <p>Third. Dr. Frank Hartmeyer had also, as was alleged by the defendant,-the city of Allegheny, become similarly delinquent in the payment of taxes on said property for the year 1877, amounting .to $225.34. The items of said claim, as stated therein, are as follows :</p> <p>City tax, ......$ 73.38</p> <p>Water rent, ...... 28.25</p> <p>Poor tax,.....- 18.35</p> <p>School tax, 36.69</p> <p>School building tax, . ... . 36.69</p> <p>Park tax, ....... 7.00</p> <p>Sewer tax, ...... 14.25</p> <p>Five per cent., 10.73</p> <p>■ $225.34</p> <p>For those taxes the city of .Allegheny instituted proceedings as above in the cases of the taxes for the year 1878, by filing claim in the said Court of Common Pleas No. 2 of Allegheny county, entering judgment thereon, issuing executions and levying upon the property aforesaid. The claim being filed September 16th, 1879, for $225.34 at M. L. docket-No. 6 of October Term, 1879, judgment entered against said Hartmeyer for said sum of $225.34, and execution issued same day and plaintiff’s same property as aforesaid levied upon and advertised for sale on the first Monday of October, 1879, the costs of which judgment and execution amounted to the sum of $47.45. Plaintiff asks that the above two claims filed by the city of Allegheny and the whole records thereof, and pf all the proceedings thereon had, be considered and treated as a part of this affidavit, as fully as though certified-copies thereof had been appended hereto as part hereof.</p> <p>Fourth. As soon as the plaintiff became informed of the' existence and pendency of the above legal proceedings insti- ‘ tuted by the city of Allegheny against his (plaintiff’s) property aforesaid, on the judgments aforesaid, against said- Dr. Hartmeyer, the knowledge of which, in both cases, came to him accidentally through his counsel observing the sheriff’s sales as advertised in the Pittsburgh papers, he (the plaintiff) claiming that the said property was not liable for any of said taxes, because their lien was divested by said sale, endeavored by pursuasion to have the Allegheny city authorities and their attorney discontinue said proceedings and remove the said judgments from the record, but this they refused to do; and thereupon he at once filed bills in equity against said city of Allegheny, its treasurer and attorney, and the sheriff of Allegheny count}'-, praying for the necessary relief and injunction restraining them from their proposed sale. The bill for the first tax above recited being filed July 2d, 1879, at No. 637, July Term, 1879, Common Pleas No. 2, and that for tlie second tax recited being filed October 2d, 1879, at No. 842, October Term, 1879, Common Pleas No. 2, said bills are still pending (which said bill in equity and the whole record of said two cases plaintiff asks may be regarded as a part of this affidavit, as fully as though certified copies thereof had been appended- hereto). In each of said cases the Court of Common Pleas No. 2, after having refused to grant an injunction, and on or about the last day on which said sheriff’s sale could be bad, the city of Allegheny persisting in going on with the same, the plaintiff paid the two judgments aforesaid together with the costs thereon ; the first judgment with costs amounting to $210.95 being paid July 9th, 1879, and the second with costs amounting, to $272.45 being paid October 10th, 1879.</p> <p>Fifth. Said payments were both made in the sheriff’s office of Allegheny county, Pennsylvania, and were made in both cases on the executions issued as aforesaid to the sheriff of Allegheny county, and in the presence of W. B. Rodgers, Esq., the attorney of the city of Allegheny who had charge of said writs, and both payments were made under solemn protest of plaintiff, to both said sheriff and the attorney of the city of Allegheny, and after the payments aforesaid the city of Allegheny received the said taxes and interest, and the amounts paid for costs were paid out by the sheriff to the proper persons and places to which they were applicable.</p> <p>Sixth. Plaintiff says he made the payments aforesaid under protest as aforesaid, and he being advised by his counsel, learned in the law, (Mr. Cummings) that although he (the counsel) thought said judgments and legal proceedings of the city of Allegheny could not affect the title as aforesaid of the plaintiff, yet it might, and that it certainly would cast a serious cloudi upon the same, as the question of whether such a tax sale would divest such a title as plaintiff had under the mortgage sale aforesaid was, as counsel believed, as yet undecided by either the courts of Allegheny county or the Supreme Court of the state of Pennsylvania.</p> <p>Plaintiff further says that he would have brought this suit long prior to this date but for the fact that negotiations have been going on until within the last few months between him and the defendant looking to an amicable settlement by the refunding or repaying him by the city of Allegheny of his said claim, with fair prospects, as plaintiff believed, 'of success; which negotiations have now failed.</p> <p>Upon these facts, as set for in this affidavit, all of which plaintiff avers are incontrovertible by the defendant, and the law under these facts, plaintiff claims judgment for said sum. of $652.12 with interest from this date and costs of suit.</p> <p>The court filed the following opinion directing judgment to be entered for the defendant.</p> <p>By agreement of counsel the facts set forth in the affidavit of claim are to be considered as a case stated, and it is desired to have the case decided without delay, so as to get it before the Supreme Court this Term. The late day when it is submitted (October 22d, and that without argument) makes'it impossible for the court to give the case a full consideration. We, therefore, rule the case in harmony with our rulings on the application for an injunction, without saying more.</p> <p>And now, October 23d, 1885, after consideration of the case stated as set forth in the affidavit, of claim, and the agreement of counsel filed in connection therewith, the question of law, to wit: the liability of the defendant to pay the plaintiff the sum claimed on the facts stated, is decided in favor of the defendant, and judgment is ordered to be entered for defendant on the case stated.</p> <p>Judgment was accordingly entered for the defendant, whereupon the plaintiff took this writ and assigned for error the action of the court in directing judgment to be entered for the defendant.</p> <p>— The present case is clearly distinguishable from the case of The Union Insurance Co. v. Thelerly, 5 Out., 255. We do not ask for a reversal of that case. There the party had not had his day in court .and he was held to be a volunteer for that very reason; here the plaintiff had his day in court, had done all in his power to protect her rights, and paid only when compelled to do so to save his property from damage by a clond about to be cast on his title. He is not a volunteer: Railroad Co. v. Commissioners, 8 Otto, 544; Preston v. Boston, 12 Pick., 14; Peebles «.-City of Pittsburgh, 5 Out., 308.</p> <p>— 1. The plaintiff places his right to recover here upon the fact that he filed two bills in equity in the Court of Common Pleas No. 2, in which he alleged that the lien of the taxes which he seeks to recover back in this action was divested by the sheriff’s sale to him, and asked for a preliminary and final injunction and general relief.</p> <p>Undoubtedly under these bills, if the lien of the taxes was divested, there could be decrees against the city for the refunding of the taxes received: Mason’s App. 20 P.-F. S., 28.</p> <p>But- these bills are still pending. These must first be pro-needed with to final determination: Glunz v. Kauffman et al.i 7 Phila., 459; Penn. Bank v. Hopkins, 2 Atlantic. R., 85; Head v. Maloney, 1 Amerman, 99; Smith v. Mel ver, 9 Wheat.,-533; Shelby v. Bacon, 10 How., 56.</p> <p>The lien of these taxes were not divested by the sheriff’s sale. There can therefore be no recovery: Duffey v. Phila., 42 Pa. St., 192; Harrisburg v. Orth, 9 W. N. C., 121.'</p>

Error, to the Court of Common Pleas No. 2, of Allegheny county : Of October Term, 1886, No. 254. This was a case stated wherein Elizabeth May was plaintiff and Stephen Affolter was defendant.

<p>A. and B., judgment creditors of the same defendant C., agreed to attack the title of the sheriff’s vendee of C.’s real estate. A. agreeing in writing with B. that if successful after paying costs and expenses and his judgment, the judgment of B. should be paid out of the said real estate. They were successful. A. obtained title to said real estate and went into possession of it. It was more than sufficient to pay the costs and expenses and both judgments. A. however refused to pay B.’s judgment, alleging (1) that the agreement so to do was without consideration, (2) that B.’s judgment at the time of making the said agreement had already been paid, and this appeared to be true. B. thereupon filed his bill in equity, praying for specific performance of said agreement. Held (a) that there was sufficient consideration for said agreement, (6) that it was no defense that B.’s judgment had already been paid, for he was.only asked to pay. what he .had -expressly agreed to pay, (a) that equity had jurisdiction to enforce said agreement.</p>

1, of Allegheny county: Of October Term 1886, No. 215. Appeal by O. C. Dicke}7 and W. A. Shaw, judgment lien creditors of the Siemens Anderson Steel Company, from a decree of said court distributing the fund arising from the sheriff sale of the steel mills of said company to the mechanics’ lien, creditors of said company, filed for alterations, additions and repairs to said mills. The court appointed Archibald McBride, Esquire, Auditor, to make distributions of said fund.

2, of Allegheny county: Of October Term, 1886, No. 52. This was a scire facias sur municipal lien, brought by the citjr of Pittsburgh against Thomas P. Hershberger to recover damages caused by the grading of Carson street in said city.

<p>1. The Statute of Limitations begins to run against a subscription to the stock of an intended corporation from the date of its incorporation. The running of the statute is barred in such case by the filing of a bill in equity against the stockholder praying for a decree compelling the payment of the unpaid stock in discharge of the*c]aims of creditors. Bringing a stockholder in to such bill by amendment has the same effect.</p> <p>2. One who subscribes to the stock of a company in view of and for the punióse of its organization and incorporation which is afterwards effected', and pays for one share of the stock thus subscribed for and transfers the other share thus subscribed for, thereby recognizes and affirms his contract of subscription and is estopped from denying it.</p> <p>8. The obligation on part of a stockholder to pay his stock is not a statutory obligation but an obligation in equity arising out of the consideration that the capital stock of a corporation is a"trust fund for the payment of its debts. Only so much of the unpaid capital as is necessary for the payment of the debts can be called in, and this can only be done when all other assets are exhausted.</p> <p>4. Before a decree can be made for the payment of the capital stock of a corporation there must be an account taken of the amount of debts, assets and unpaid eaptal stock of the corporation. The decree must be for the amount due by each stockholder.</p> <p>5. Lane’s Appeal, 9 Outerbridge, 49, approved.</p> <p>6. Subject to exceptional instances depending on special provisions in particular charters and in cases subject to the general railroad law of February 19th, 1849, the obligation'to make good the unpaid portions of capital stock when the necessities of creditors require it, is a charge upon the stock which passes with it to the holder of it.</p> <p>7. The liability of one as owner of stock in a corporation is not discharged by an ex parte transfer in writing not entered upon the books of the corporation or recognized by the corporation, with a private agreement of the transferee that the transferer should not be liable for the payment of the same.</p>

<p>1. "Where several persons are appointed executors they are generally regarded in law as one person, and, therefore, the acts done by one which relate to the testator’s goods, such as sale, delivery and possession, are considered as equivalent to the acts of all, as they possess a joint authority; but, in relation to their several liabilities, they are liable, personally and individually, no further than assets have come into their hands, or where they have done some act which the law considers as equivalent to an admission that the assets were in their hands and power, and were culpably and negligently parted with.</p> <p>2. An executor, loaning money of the estate upon the personal security of the borrower, does so at his own risk.</p> <p>3. A. the friend, and B. the son of the testator were appointed by him co-executors. No express trust duties were imposed on them by the will. B. collected $10,000 due the estate for which both A. and B. gave the debtor their receipt. B. gave A. a statement declaring that he alone received the money and was alone accountable for it. lie, claiming that he was the natural guardian of his daughters, took this in payment of their legacies under their grandfather’s will, which amounted to this sum. A. consulted^ counsel as to B.’s right to do this and permitted it only • upon_ being informed that it was safe, as B. was financially sound and individually responsible for it. B. became insolvent, when it was discovered that he had misapplied the sum so collected. Upon filing his account, A. was surcharged with the said sum, so collected and misapplied by B. Held to be error.</p>

2, of Philadelphia county: Of January Term 1886, No. 198. Assumpsit by D. Sheldon against Charles P.. Tasker on the following instrument in writing: Philadelphia, October 13th, 1885. Spring Garden Bank, “Pay to the order of D. Sheldon one hundred and fifty dollars ($150). [Signed] ' Charles P. Tasker. “Endorsed, D. Sheldon. “D. Webster Dougherty. “ Attorney for Plaintiff.” Judgment was entered for want of an affidavit of defence, and damages assessed at $150.93.

<p>Error to the Court of Common Pleas No. 3 of Philadelphia county: Of January Term, 1886, No. 161.</p> <p>Case by Benjamin F. Young against the Pennsylvania Railroad Company to recover damages sustained by the unlawful and wrongful action of the alleged agent of the defendant in ejecting the plaintiff from a passenger train. Plea, not guilty.</p> <p>The facts of the case, as they appeared on the trial, sufficiently appear in the opinion of the Supreme Court.</p> <p>A copy of the ticket sold to the plaintiff by the agent of the New York & Ohio Railroad, is shown on pages 112'and 113.</p> <p>The court instructed the jury as follows: [Under all the evidence in this case, and especially under the depositions which have Been read, and which I have had to catch as the answers were read to you, I am satisfied that the remedy here is not against the Pennsylvania Railroad Company.] I am satisfied of that fact first, — I speak in general terms now, I may hereafter have an opportunity to explain my views in a more elaborate manner. First, [there was no authority to make this contract, and no authority is pretended, other than that which arose from a series of coupons passing this person over various roads]. [In the next place there is no evidence here that this ticket was refused upon a road which belonged to the defendant — no evidence whatever.] And, thirdly, in my judgment, [there is no ratification of this contract by the letters produced, and which is commented upon by orre of the gentlemen, the counsel for the plaintiff.] Lastly, [on the face of his ticket, and without more evidence, without other evidence, the conductor, whatever may have been said of the way in which the thing was done, and however disagreeable it may have been to the parties concerned, and unfortunate under the circumstances, it strikes me now, though perhaps I may change my view about that hereafter, but it strikes me now that, these tickets in the possession of the passenger, the conductor with his knowledge of events, and of the fact that this person had stopped off, was fully justified in refusing to take the ticket.] I do not say that he might not have made some arrangement by which they should have remained, that is another thing; but it comes down to a difficult question of law, as I understand it, that is not a stop-off ticket. There is nothing upon the face of this ticket to show that it is other than a limited ticket for a continuous passage, .and the conductor, acting upon bis responsibilities, and under his orders, would have found himself in a serious position with the company, if he had permitted this person to travel upon that ticket, and, from every view of this case, thus briefly stated, [I shall direct you, upon all the evidence in the case, to render a verdict for the defendant.]</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>Verdict for the defendant and judgment thereon,-whereupon the plaintiff took this writ assigning for error those portions of the charge included within brackets.</p> <p>— The sale of tickets such as these in the form of coupons is regarded in the same light as when the tickets of one company are sold at the stations of the other companies. Such transactions are regarded in the light of agency: American Law Register, N. S., vol. I., p. 12.</p> <p>These through tickets are regarded as having been sold by the first company as agent for the other companies, so far as the passenger is concerned: See Redfield on Railways, p. 292, etc., and foot-note.</p> <p>The tickets were sold by a regular ticket agent at Akron, Ohio, stationed there for that purpose, and, therefore, presumably acting within the scope of his authoritju Being the authorized agent of the road which sold the tickets as agent for the other roads, if he was acting within the , scope of-his employment, it could make no difference, even if the agent disobeyed the direction of his superior: Redfield on Railways, pp. 188 and 139; Railroad Company v. Derby, 14 Howard, 468; Murdock v. R. R. Co., 137 Mass., 293; Burnham v. R. R. Co., 63 Me., 298.</p> <p>This court, in Pennsylvania Railroad Company v. Spicher, 9 Out., 143, has decided that any items of evidence, tending to show that the act complained of was committed by one of the company defendant’s officers, acting within the general scope of bis authority, should be submitted to the jury: Hanover Co., v. Coyle, 55 Pa. St., 396.</p> <p>— There is no pretence of any authority for extending the limit and permitting a stop-over except what took place at the purchase of the ticket from Auble, who was not the agent- of the defendant, who took the responsibility to issue a ticket for a continuous ride when he ought to have known -.that conductors on other roads would be governed by the ticket alone, as was said in Beebe v. Ayres, 28 Barbour, 278: — He (the conductor) had no right to act upon oral evidence; what was written or printed upon the passenger’s ticket was the only evidence he had a right to take;.....once admit the right of the conductor to take the word of a passenger as a substitute for a ticket, or what a ticket indicates, and - frauds innumerable would be committed by dishonest travelers upon over credulous conductors......He (the passenger) is presumed to have purchased the ticket with reference to the regulations of the road, and, when he chose to lie over a train, there was nothing unreasonable in requiring him to procure his ticket to be so indorsed as to make it a voucher to the conductor who should have charge of the next or some subsequent train.</p> <p>■ None of the cases cited by the plaintiff in error impair the accuracy of the ruling of the court below.</p> <p>■ In Murdock v. R; Road, 137 Mass., 293, the company sued had by its agent made the parol contract controlling that expressed in the ticket, and which was broken by it. Similar is the case of Burnham v. R. Road, 63 Maine, 298. In Spichef v. R. Road, 9 Outerbridge, 143, the plaintiff sued tlm selling road, and which, according to the evidence, was the one making the wrongful ejection.</p>

175. Appeal by William Hellerman from the decree of the Orphans’ Court of said county, confirming the report of a Master, A. Atwood… Held: that such child was entitled to the principal sum after the grandmother's death, and that to effectuate the intention of the testator the words “without leaving any child” were implied, Sir John Romilly saying: “It may be stated as a general rule that wherever the context requires it, words may be supplied, changed, and transposed.”…

4, of Philadelphia county: In equity: Of January Term, 1886, No. 197. This was an appeal by William H. Johnson from a decree-of said court. A bill in equity was filed by Robert G. Loughrey against William H. Johnson, averring that a partnership had existed between them, that it had been dissolved and that, the defendant on being requested and commanded had refused1 an account and settlement of the partnership business.

<p>Error to the Court of Common Pleas No. 1, of Philadelphia county: Of January Term, 1886, No. 285.</p> <p>Case by Charles M. Arnold against the Pennsylvania Railroad Company to recover damages from the defendant for injuries alleged to have been sustained by him by reason of the agents of the defendant unlawfully and negligently ejecting him from one of their passenger trains ill which he was a passenger. Plea, not guilty.</p> <p>The following are the facts of the case as they appeared on the trial before Peirce, J.</p> <p>On the morning of April 6th, 1883, the plaintiff went to the Broad street station at Philadelphia of the Pennsylvania Railroad Co. to buy a ticket for Lancaster. He bought an excursion ticket, the return coupon of which was as follows:—</p> <p>Pennsylvania Railroad Co.</p> <p>Daily Excursion Ticket.</p> <p>In consequence of the reduced rate at which this ticket is sold, it will only be received for return passage on the day of sale, as stamped on the back. If issued on Saturday or Sunday, will be good to return until the following Monday, inclusive.</p> <p>Lancaster</p> <p>to</p> <p>Philadelphia.</p> <p>Not good to stop off.</p> <p>(On the side) J. R. Wood,</p> <p>Return Coupon. (general Passenger Agent.</p> <p>482.'</p> <p>(Endorsed) Pennsylvania Railroad Co.</p> <p>April 6th, 1883.</p> <p>Broad Street, Philadelphia, Pa.</p> <p>He went to Lancaster, transacted his business, and arrived at the depot at Lancaster at about 11 o’clock in the evening, ready to return to Philadelphia. He waited for a train until about 12.45, when a train arrived, which he took. He took his seat in one of the passenger cars. A short time after the train had left Lancaster, the conductor entered the car for the purpose of collecting the fares of the passengers. The plaintiff handed him the return coupon. The conductor examined it and refused to take it, saying that it had expired at 12 o’clock (about an hour before), and said he would have to pay the full cash fare. The conductor then left, and proceeded to collect the fares of the other passengers. He returned and again asked the plaintiff for his fare, and said that unless h'e paid it he would .put him off. The plaintiff replied that his ticket was good, but rather than be put off he would pay the difference between the redemption value of his return coupon and a full fare. This offer the conductor refused. In the meantime the train had made several stops at its regular sta-tions and no effort was made by the conductor to eject the plaintiff, when the train reached a way station, called Laemon Place, the conductor stopped the train and told the plaintiff that he. Would now have to get off. The plaintiff arose and, under protest, followed the conductor to the door. On reaching the platform of the .car the conductor1 showed the plaintiff off on the side of the train nearest to the station, and motioned with his hand toward the station. In order to get there it was •necessary for him to cross the tracks of the west-bound trains. He had hardly stepped on the ground when the train moved off. It was about half-past one o’clock at night, and very dark. There were no lights or signals at the station, and before the plaintiff had time to clear the track, the head-light of the express train, which was then due at that place, suddenly flashed upon him, and the next instant he was thrown a considerable distance on one side of the track. He lay for a time unconscious, then sought a place of shelter for the night. The only place he could find was in the signal tower of the railroad company, where he spent the night on the floor. In the morning he returned to Philadelphia.</p> <p>After the plaintiff had closed his case the court on motion of the defendant’s counsel entered a compulsory nonsuit. A motion was made to take off the nonsuit which the court in banc overruled. Judgment was accordingly entered, whereupon the plaintiff took this writ, assigning for error the said action of the court.</p> <p>— I. The plaintiff’s ticket was good for the passage if begun on the day upon which the ticket expired. He was at the depot of the company and thus beginning his journey before the ticket expired : Allender v. The Railroad, 37 Iowa, 264; Caswell v. The Railroad, 98 Mass., 194; Gordon v. the Railroad, 40 Barb., 546; Central R. R. Co. v. Perry, 58 Ga., 461; Buffett v. The Railroad, 40 N. Y., 168; Warren v. The Railroad, 8 Allen, 227; Poucher v. The Railroad, 49 N. Y., 263.</p> <p>The plaintiff was entitled to be carried as a passenger because he offered to pay the difference between the redemption value of his return coupon and the full fare.</p> <p>By the Act of May 6th, 1863, sec. 5, P. L. 582, railroad companies are obliged to redeem their unused tickets.</p> <p>II. Even if the plaintiff be regarded as a trespasser upon the defendant’s cars and as rightfully ejected therefrom, still he is entitled to recover.</p> <p>1. If a trespasser at all he was on the defendant’s cars under a reasonable claim of right. He believed the ticket which he had purchased entitled him to ride. When informed to the contrary he offered to pay the difference between the redemption value of the ticket and the cash fare.</p> <p>2. Even if a willful wrongdoer he was still entitled to be ejected from the train with a due regard for his safety. A conductor is not permitted to use violence in ejecting a trespasser: Penna. R. R. Co. v. Toomey, 10 Norris, 256; Rorer on Railroads, vol. 2, pp. 960, 963, 966; Biddle & Wye v. R. R. Co., 2 Amerman, 551; R. R. Co. v. Rosenzweig, 3 Id., 519; Law v. R. R. Co., 32 Iowa, 534; Healy v. R. R. Co., 28 Ohio, 23; Kline v. R, R. Co., 400; R. R. Co. v. Stout, 17 Wall., 657; Penn-, R. R. Co. v. Vandwer, 6 Wr., 365.</p> <p>III. There was ample evidence of negligence and of damage, and the case should have been submitted to the jury.</p> <p>The question of negligence should have been submitted. If there is any question of fact raised the case should go to the jury: Berg v. Abbott, 2 Norris, 177; Prutzman v. Bushoug,. 2 I'd., 526.</p> <p>On motion for a nonsuit, not only must the evidence of the plaintiff be taken as true, Gordon v. The Railroad, 6 W. N. C., 405; Miller v. Bealer, 5 Out., 583 ; but every inference of fact which a jury might draw from it in favor of the plaintiff must be drawn by the judge; Smith v. Craig, 3 W. & S., 14; or if there be some evidence, though slight, from which a jury might draw an inference favorable to the plaintiff, the case should be left to the jury: Bevan v. The Ins. Co., 9 W. & S., 187; Maynes v. Atwater, 88 Pa. St., 496 ; Howard Ex. Co. v. Wile, 64 Pa. St., 201.</p> <p>Negligence is always a question for the jury when there is reasonable doubt as to the facts or as to the inference to be drawn from them. Where the measure df duty is ordinary and reasonable care, and the degree of care varies according to circumstances, the question of negligence is necessarily for the jury: McCully v. Clark, 4 Wright, 406; Penna. Canal Co. v. Bentley, 16 P. F. S., 30; W. C. & P. R. Co. v. McElvee, 17 Id., 311; Crissey v. Hestonville Pass. Railway Co., 25 Id., 83 ; McKee v. Bid well, 24 Id., 223; Phila. City Railway Co. v. Hassard, 25 Id., 367.</p> <p>The plaintiff had no ticket entitling him to a passage and declined to pay his fare, the conductor had a right to decline to carry him further. No cause of action exists for the ejection : Dietrich v. R. R., 7 Pa. St., 432 ; Railway v. Clark, 72 Pa. St., 231.</p> <p>As his ticket had expired, it was his duty, if able to do so, to pay his fare. If he caused his expulsion, he can recover nothing unless the railroad had committed a breach of contract. Hall v. R. R., 9 Am. & English R. Way Cases, 348. He had ■no right to couple the payment of his fare with a condition that his expired ticket should be redeemed. Yahkirkw. R. R., 76 Pa. St., 66.</p>

<p>1. A. advertised that he would carry on business as A. & Co.. “ admitting-B. and C. to interests.” At the same time, he employed B. and C. at a stated annual salary with a contingent interest of a per centage in the net proceeds of the business above a certain amount. A. made declarations that B. and C. were his partners in carrying on the business. B. and C. each signed cheeks and gave receipts in the firm name. A. confessed judgments to his individual creditors who levied on the property of A. & Co. The creditors of A. & Co. subsequently issued attachments under the Act of 1869, and attached the same property. The property was sold by the sheriff, and the fund arising therefrom was paid into court for distribution. B. and C. filed claims for wages, under the Act of 1872. On distribution, it was held (a) that B. and C. were not partners with A.; (b) that B. and C. were not bound by the declarations of A. , made in their absence, without their knowledge or consent; (c) that B. and C. were not estopped from denying the partnership; ([d) that the attachment creditors were not prevented from participating in the distribution by reason of their not having their claims in judgment, but because the property sold was the individual property of A., and his individual creditors were prior in levy and lien; (e) that the claims of B. and C. for wages should be allowed.</p> <p>2. The rights of firm creditors are worked out through the equities of the partners, and where, as in this case, the property sold was individual property, the partners had no equities in it, and the firm creditors had no claim upon the fund, to the exclusion of individual lien creditors.</p> <p>;3. The existence of a partnership may be proved by the separate declarations of each of the alleged partners, but neither of them is bound by the separate declarations and admissions of the others, made in their absence and without their knowledge or consent.</p> <p>4. York County Bank’s Appeal, 8 Casey, 446, followed.</p>

2 of Philadelphia county: In equity: Of January Term 1886, No. 168.

<p>Appeals from the Orphans’ Court of Philadelphia county: Of January Term, 1886, Nos. 352 and 353.</p> <p>Appeals by the Fidelity Insurance, Trust and Safe Deposit Company and John H. Sloan, executors of the last will and testament of Adam J. Glasz, deceased, and of the German Roman Catholic St. Vincent’s Orphans’ Asylum of Philadelphia, and its vicinity, residuary legatees under the last will and testament of Adam J. Glatz deceased, from the decree of said court dismissing these exceptions to the Auditor’s second report, distributing the estate of Frank J. Glasz deceased, and confirming the same. The facts of the case as they appeared in the court below appear in the following opinion dismissing the exceptions to and confirming the Auditor’s second report.</p> <p>When the balance due by an executor or administrator, who died without administering the estate, is ascertained, it must be awarded to the administrator d. h. n. of the original decedent for filial distribution : Act of February 24th, 1834, Pur. 528, pi. 109; Commonwealth v. Strohecker, 9 W., 479; Montgomery’s Estate, 7 Phila., 504; Carter v. Trueman, 7 Barr, 315. Nor do the facts of this case present any reason for an exception to the well settled rule.</p> <p>The personal estate of the decedent Frank J. Glasz consisted wholly of city of Philadelphia loan, to the amount of $14,300. He died February 2d, 1865, intestate, unmarried and without issue, and letters of administration were granted to theacountant Adam J. Glasz, also now deceased. On February 16th, 1866, the administrator filed an account, in which he charged himself with the city loan, but with no other personal property; and also, but improperly, with one-half of the supposed value of a certain piece of real estate, owned by himself and the decedent as tenants in common, but which remains unsold. Upon the credit side he claimed credit for the payment of fabuIons claims against the decedent, which, if allowed, would abr sorb nearly the entire estate.</p> <p>The following extracts will suffice to “show their extraordinary character, viz: “Board and attendance, $2,500; medicines, $150; doctors’ bills, $250; traveling expenses, $650; clothing, $500; funeral expenses, $950; marble works, $455 ; mourning, $250 ” (when the decedent died, unmarried and without issue); “and cash received, $6,500.” The meaning of this last is inexplicable.</p> <p>When it is remembered that no moneys were received by the administrator, and the city loan remains unconverted until the present day, it is evident these remarkable alleged payments, if made at all or to the extent charged, must have been defrayed from the individual moneys of the administrator, or they were simulated, for the purpose of appropriating to himself the entire estate.</p> <p>On March 16th, 1866, the account was referred by our predeeessors to an Auditor. He advertised notice of his appointment, as required by rule of court, and on the day appointed for the performance of his duties, was attended alone by the administrator. No creditor or other person interested appeared. From representations made to him by the administrator the Auditor was satisfied he was a brother of the decedent, his only heir at law, and the only person interested. And therefore concluded to allow the credits asked for and award to the administrator the balance remaining for distribution, subject to the payment of the collateral tax.</p> <p>Unfortunately for the administrator, but fortunately, perhaps, for those ultimately entitled to the estate, he neglected to pay the costs of the inference to the Auditor, who therefore did not file his report, and cause the same to become a record of the court, and his award its judgment and decree, and also to transfer and assign the city loan to himself. They remained the assets of his decedent’s estate, and continue so to the present.</p> <p>In March, 1883, the administrator died, and his executors found among his assets the Philadelphia city loan referred to, still in the name of the original decedent. This occasioned an investigation, and, after a thorough search, the report of the Auditor was discovered, and on May 10th, 1884, filed in the office of the court, at the request of the executors of the deceased administrator. Thus, for the first time, it became of record.</p> <p>On May 17th, 1884, before its final confirmation, and consequently a decree of the court, upon the petition of Peter Wagner, claiming to be one of the next of kin of the decedent, the report was recommitted to the Auditor “for further audit and settlement of the account, to take testimony and report' distribution of the balance found due by the deceased adminis-. trator to the administrator d. b. n.”</p> <p>At the re-audit the deceased administrator was represented by the executors of his will, and numerous claimants, as heirs and next of kin of the original decedent, were represented by counsel. After a careful and patient investigation, the Auditor disallowed certain of the credits claimed in the account, reduced other allowances asked for, surcharged the deceased administrator with interest upon the city loan collected by him from January, 1865, to January, 1883, inclusive, and awarded the city loan and balance of moneys, thus ascertained to the administrator d. b. n.</p> <p>The Auditor also found from the evidence that the deceased administrator was the illegitimate son of the mother of the decedent, born nearly five years prior to her acquaintance with the father of the decedent, and subsequent marriage to him, and consequently could not inherit from the decedent, the legitimate sou of his mother, for the reason that the Act of April 27th, 1885, Pur. 934, pi. 40, while an enabling statute, restricts the capacity of illegitimates to inherit to and between the mother and her illegitimate child respectively.</p> <p>These conclusions of the Auditor are the subject of the exceptions. After a careful consideration of the evidence, we think it fully sustains the finding of the Auditor, and his view of the law is in harmony with statute and authority.</p> <p>Prior to the Act of June, 1883, Purd. 934, pi. 41, which followed Woltemate’s Appeal, 5 Norris, 219, decided in view of the Act of 1855, illegitimate children might inherit from their mother, and the latter from her, illegitimate child, but the former could not inherit from each other. Grubb’s Appeal, 3 P. F. Smith, 55; Steckel’s Appeal, 14 Id., 493; Woltemate’s Appeal, supra. And while the Act of 1888 enables illegitimate children to take and inherit from each other in the same manner as children born in lawful wedlock, they “ must be born of the same mother, and leave neither mother nor issue, capable of inheriting, surviving.”</p> <p>But we do not know of any statute which enables the illegitimate child to inherit the estate of the legitimate child of the same mother, except where, as provided by the Act of May 14th, 1857, Purd., 1149, pi. 9, the parents subsequently married, “ such child or children shall thereby become legitimated, and enjoy all the rights and privileges as if they had been born during the wedlock of their parents.” But the facts in this case show that the Act of 1857 is inapplicable. The father of the decedent was not the father of the .administrator, and, although he married their mother, and the decedent was born in lawful wedlock, yet the act contemplates that the children to be legitimated by a subsequent marriage must be born of the same parents. Our conclusion therefore is that the administrator could not inherit the estate as heir or next of kin of the decedent. That, as such administrator, he was liable for the interest upon the city loan collected by him to the date of his death. And the city loan, together with the amount ascertained to be due the estate by him or his estate, are properly awarded to the administrator d. b. n.</p> <p>It was suggested at the argument that the claim of the next of kin, not having been- made within seven years after the death of the intestate, is barred by the Act of April 8th, 1833, Purd., 934, pi. 38, which provides that “ all such of the intestate’s relations, and persons concerned, who shall not lay legal claim to their respective shares within seven years after the decease of the intestate, shall be debarred from the same forever,” etc. But it is held that the Act does not apply to real estate, Blackmore v. Gregg, 2 W. & S., 182, and can only be pleaded where there has been a bona fióle distribution, without notice of any claim by the heir or next of kin : Logan v. Richardson, 1 Barr., 372. In that case Judge Rogers said : “ This Act is intended to protect administrators and the personal representatives in the event of the distribution of the estate by the administrator without notice. When payment of the fund is made in good faith, it cannot afterwards be disturbed by an heir who has neglected to claim his share at the proper time. The administrator has a right to rely on the Act in such case for his shield and protection.</p> <p>But it never was designed that it should be^rsed for the unjust purpose of enabling the administrator to put the money, against all good faith, in his own pocket. The administrator is a trustee for the next of kin, and, while a trust subsists, the statute does not continue to run between the trustee and cestui que trust. Lapse of time in this, however, as in every other case, may raise a presumption of payment.” Nor does the Act extend to the surplus of a sheriff’s sale of the decedent’s real estate : Carter v. Trueman, supra.</p> <p>The exceptions are dismissed, and the report confirmed. i The appellants thereupon took these appeals, assigning for error the action of the court iu dismissing these exceptions and confirming the said report.</p> <p>— The appellee was not entitled to have the audit opened. He was guilty of such gross laches as to preclude a court on equitable principles to interfere in his behalf: Gress’ Appeal, 2 Harris,. 463; ex parte Cress, 2 Whart., 494; Luken’s Appeal,,! W..& S., 48; Penna. Company’s- Appeal, 5 Norris, 102; Eckert’s Appeal, 6 W. N. C., 21; Maulfair’s Appeal, 2 Atlantic Reporter, 530.</p> <p>Bill for an account was dismissed solely on the ground of the laches of complainants, although they alleged in palliation their poverty and their situation as sea-faring people in an unsettled way of life: Pearson v. Belchin, 4 Vesey, *627.</p> <p>Bill- for an account was dismissed by reason of the difficulty of the account after a great length of time: St. John v. Turner, 2 Vernon, 418.</p> <p>Courts of equity will sometimes refuse to grant relief, although the Statute of Limitations cannot be pleaded in bar, and although presumptions cannot arise from lapse of time, or may be conclusively rebutted. In such cases courts proceed upon the ground that the public convenience will not allow old and stale claims to be investigated, when many of the parties-or witnesses are dead, or their memories impaired and vouchers are lost. JExpedit república ut sit finis litium : Perry on Trusts, section 869.</p> <p>Mere lapse of time or delay in suing is such laches in the plaintiff in a certain class of cases that he is not entitled to relief unless he can explain the delay: Perry on Trusts, section, 869.</p> <p>Thus, where a bill was brought against an executor for an account,.there being no statute protection, and the presumption of a final settlement being rebutted, the court refused to open the account after a great lapse of time, when it was probable that most of the parties were dead and the vouchers and receipts were lost: Hunton.-w. Davies, 2 Ch., 44; Hult v. Fletcher, 1 Átk., 457 ; Campbell v. Graham, 1 R. & M., 453; Anderson v. Bunvell, 6 Gratt., 405; Hercy v. Durwoody, 2 Bro. C. C., *287 ; Pollock v. Gardner, 1 Hare, 594; Taulum v. Williams, 3 Hare, 347; Provost v. Gratz, 6 Wheat., 480; Piatt v. Vattier, 9 Peters, 405; McKnight ¶. Taylor, 1 How., 161.</p> <p>The Auditor should have filed his report nunc pro tunc as of 1886 : Campbell v. Meiser, 4 John. Ch., 334; Benson v. Wolverton, 1 C. E. Green, 110; Durnham v. Dalling, 1 Id., 310 ; Bank of the U. S. v. Weisinger, 2 Peters, 481.</p> <p>Where the plaintiff died, after an entry of an appeal from the decision of a vice-chancellor, and after the cause was ready for a hearing upon the appeal, but the fact of his death being unknown to the counsel,.the cause was afterward heard and decided by the chancellor'upon the appeal; it was held, that the decree upon the appeal might be entered, nunc pro tunc, as of a day previous to the death of the plaintiff, and after the entering of the appeal: Vroom v. Ditmas, 5 Paige, 528; see Wood v. Keyes, 6 Paige, 478 (Emory v. Parrott, 107 Mass., 104). What is the remedy in such a case ? By bill of review, or by practice prior to the Act of 13th of October, 1840 ?</p> <p>They would then have to show affirmatively fraud and account for laches. See the injustice done by the proceedings. Twenty years after an account is filed, all parties in interest dead, in consequence of the lapse of time all evidence by papers, etc., destroyed, the executors of the accountant are called upon to prove a case of which they have no knowledge, and all testimony lost. Can there be a greater hardship ?</p> <p>The purpose of the Act (1840) was to make a bill 'of review a matter of right, and at the same time to prescribe a limit to its exercise; Kinter’s Appeal, 62 Pa. St. Rep., 318.</p> <p>To justify a bill of review there must be error on the face of the account, or new facts arising since the decree, or newly discovered evidence: Riddle’s Estate, 19 Pa. St. Rep., 431; Hartman’s Appeal, 36 Id., 70 ; Green’s Appeal, 59 Id., 235. It is never allowed to stand on strict law and against equity: Yeager’s Appeal, 34 Pa. St. Rep., 173; Russel’s Admin. Appeal, Id., 258; Stevenson’s Exr’s Appeal, 32 Id., 318. Unless the alleged errors in the account are set forth specifically and verified by oath or affirmation, the original decree will not be opened : Kachlein’s Appeal, 5 Barr., 95.</p> <p>— The appeal of the German Roman Catholic St. Vincent’s Orphans’ Asylum of Philadelphia, and its vicinity, should be quashed, as it is in no way a party to the record in the court below, and as the appeal is no,t from a decree for the distribution of the estate of Adam J. Glasz, deceased; even though this appellant be a legatee under his will, which does not appear of record in the present cause, it has no standing to take an appeal from a decree in a collateral proceeding in which the executors of the last will of the decedent represents all parties interested in his estate.</p> <p>Under the Act of 1834, an administrator de honis non, is entitled' to recover from the representatives of a former administrator the balance of an administration account, for the purpose of distribution : Carter v: Tureman, 7 Barr, 315: Connelly’s Appeal, 1 Grant, 366; Commonwealth v. Strohecker, 9 Watts, 479; Estate of Austin Montgomery, 7 Phila., 504; Little v. Walton, 11 Har., 164.</p> <p>Even though the deceased administrator would have been entitled to the entire assets as distributee, the amount in his hands must be paid to the administrator, d. h. n., who is the only person who can make distribution: Lewis v. Ewing, 6 Har., 313.</p> <p>Of course, the Act of April, 1833, Br. Purd., 934, pi. 38, does not apply, for as was said in Logan v. Richardson, 1 Barr, 372:</p> <p>This act is intended to protect administrators and tbe personal representatives in the event of the distribution of the estate by the administrator without notice. When payment 'of the fund is made in good faith, it cannot afterwards be disturbed by an heir who has neglected to claim his share at the proper time. The administrator has a right to rely on the Act in such case for his shield and protection. But it never was designed that it should be used for the unjust purpose of enabling the administrator to put the money, against all good faith, in his own pocket. The administrator is a trustee for the next of kin, and, while a trust subsists, the statute does not continue to run between the trustee and cestui que trust. Lapse of time in this, however, as in every other case, may raise a presumption of payment.</p>

<p>1. The General Railroad Act of April 4th, 1868, P. L., 62, in so far as it confers power on a railroad company to construct branches from its main line, is not repealed. The Act of May 21st, 1881, P. L., 27, has no application to the power to construct brandies conferred by the former Act.</p> <p>2. The construction of a branch railroad nearly double the length of the main line, is not of itself an abuse of the branching powers conferred on railroad companies by the Act of April 4th, 1868, P. L., 62. The relative importance of the main line and the branch cannot always be measured by their length respectively.</p> <p>3. The courts, in the proper and judicious administration of the law, have ample power to restrain abuses of corporate grants.</p>

<p>The general ¡lower of the court, to amend a verdict so as to make it conform to the verdict actually rendered, is inherent in the court, and where the rights of third parties have not intervened, it is not limited as to time. It rests in the sound discretion of the court, and whether made from the facts as they appear on the record, or upon other evidence, it is not the subject of an appeal, or a writ of error.</p>

<p>Error to the Court of Common Pleas No 2, of Philadelphia county : Of July Term, 1886, No. 130.</p> <p>Case by Anna Gold against the city of Philadelphia, to recover damages, alleged to have been sustained by her by reason of the falling off in patronage at her inn, through the negligence of the defendant in not repairing and keeping in passable condition the highway upon which it was situated. Plea, not guilty.</p> <p>By agreement of parties, the case was referred to E. Coppee Mitchell, Esq., as referee, under the Act of June 16th, 1836.</p> <p>The facts of the case appear in his report as follows:</p> <p>The Germantown and Perkiomen Turnpike Road Company was incorporated by the legislature by an Act passed 12th February, 1801, by which statute the courses and distances of the road were prescribed, and also the width, level, and manner of construction. In section 9 of that Act it was provided “that at least twenty feet of the road was to be made an artificial road-bed, with wood, stone, gravel or any other hard substance, well compacted together, and of sufficient depth to secure a solid foundation for the same; and the said shall be faced with gravel or stone pounded, or other small hard substance, in such a manner as to secure a firm and even surface,” etc., and the company was required to keep the same in good and perfect order, and allowed to collect tolls from travelers thereon. Under this authority the road was built.</p> <p>By Act of Assembly of March 26th, 1865 (Pamphlet Laws, 570), certain rights and privileges, which had been reserved by the state by the original charter, to wit, to resume possession of the road upon paying a valuation, were transferred to and vested in the city of Philadelphia. And, by that Act, it was provided that, as soon as the appraised value should be paid by the city, all tolls upon the road should cease. Subsequent statutes were passed on the subject of the method of making the appraisement, the last one of which was the Act of 27th May, 1871 (Pamphlet Laws, 1250). In the manner pointed out by this last statute, the appraisement of the road was made, the amount was paid by the city, and the road relieved from toll. The city took possession of this road under these Acts of Assembly on the twenty-eighth day of October, 1874, and by them the duty of keeping the road in proper condition for travel was laid upon the city.</p> <p>On the question whether the city had neglected to repair this road, the weight of the evidence was overwhelming. It was proved by many witnesses that the road, especially in the winter time, was in very bad condition during the whole period which elapsed from the taking possession by the city until the day of beginning this suit, the summons in which was issued March 4tli, 1882. It cannot be said that the road was impassable at any time, for the fact is that at the worst times persons did go through; but it was proved beyond dispute, and I find as a matter of fact, that the defendant neglected its duty with respect to this road, that it was in a condition which made it inconvenient and' unsafe for ordinary travel, and that with respect to it the defendant was guilty of negligence.</p> <p>The plaintiff, Mrs. Gold, is the widow of James L. Gold, who kept an inn fronting on this road, in Chestnut Hill, for many years prior to his death. He died in 1874, and, from that time to the day of bringing suit (and since), the same inn has been kept up by the plaintiff, who was his widow and succeeded him in the business. During the whole occupancy of the plaintiff and her deceased husband, they were tenants, under a lease from year to year, of the premises.</p> <p>Prior to the year 1874, the business at this inn was prosperous. It was the only inn on that road for the accommodation of farmers and drovers. It was the habit of certain cattle dealers to go through the grazing districts of Bucks and Montgomery counties to buy and collect cattle, and drive them down this road to the city of Philadelphia to market. It was considered very desirable by these drovers to arrive at market, in Philadelphia, in the morning; and, as the inn was situated at a convenient distance from the cattle market, they were in the habit of stopping there over night with their droves of cattle and their servants. This was a regular business for which preparations had been made by the building of extensive cattle sheds and other conveniences, and which had been carried on for many years, and was a source of constant profit to the persons keeping the inn. It was also frequented by farmers and clothing dealers.</p> <p>Little or no work was done upon the road by the defendant after taking possession in October, 1874. Many complaints about the bad condition of the road were made to the proper departments of the city of Philadelphia, not only by the plaintiff herself, but also by policemen, neighbors, persons traveling along the same and the assistant commissioner of highways of that district. But all these complaints were without avail to induce the city to do its duty and put the road in proper repair. In addition to this, in the fall of 1880, the defendant graded Growen avenue, at Mount Airy, some distance below the inn of the plaintiff, and, from the cuttings made necessajy by that grading, had obtained a quantity of red or yellow earth or loam, which was spread upon portions of the road in question with the intention of grading it. During the winter after this red or yellow earth or loam was put upon the road, the condition of it was very bad. The ruts and holes, which had been allowed to grow deeper in the old artificial bed of the road, were covered and hidden from sight by the soft earth thus put on top of them; and, when the rains came, and this soft earth was turned into mud, these old holes served as pitfalls for travelers, who, by reason of the covering of mud, were unable to see them. Still, I am not able to say that, even during this winter, the road was impassable for teams. The fact is that, even at the worst, some persons did habitually go over the road; but its condition was such that it was avoided by many who had been in the habit of going over it, and the stream of travel past the plaintiff’s inn was undoubtedly greatly decreased on account of the condition of this road.</p> <p>A great deal of testimony was taken to show the specific items of damage done to the plaintiff, by reason of the condition of this road. She claimed that she was entitled to recover the profits lost up to March 4th, 1882; the value of the good-will which was lost: the cost of keeping her useless team; the moneys expended by her in freight and express charges; the cost of erecting cattle sheds, which were rendered useless by the breaking up of that business; compensation for the prevention of access to her own premises, and for being prevented from using the highway in her business; and for being compelled, to take a circuitous route from and to the markets.</p> <p>In the view which I take of this ease, the consideration of these claims for damages will not be necessary.</p> <p>Thé defence relied on by the city was:</p> <p>1. That it had been decided, with respect to this very road, that it was not the duty of the city to keep up an artificial highway like that described in the Act of 1801. That it was sufficient for the city to keep the said highway safe and convenient for ordinary travel as a country or dirt road: Commonwealth v. The City, 11 W. N. C., 485.</p> <p>2. That under no circumstances could the plaintiff recover in this action, inasmuch as the obligation imposed upon the city to keep this road in repair was a public duty, a neglect to perform which was punishable by indictment; and that no one was entitled to a private action for negligence against the city, unless he could show some injury peculiar to himself, and different in kind from that which was suffered by the general public.</p> <p>Before, however, proceeding to discuss the law in the ease, I will, in answer to the written request of the plaintiff’s counsel, make findings upon certain questions of fact.</p> <p>He requested me to find :</p> <p>1. That the defendant, having been under a duty to maintain Germantown avenue since October 28th, 1874, in a condition safe and convenient for ordinary travel, has wholly failed to perform such duty, and is therein guilty of gross negligence.</p> <p>I find that to be true, as stated.</p> <p>2. That, since January 1st, 1874, the plaintiff has been from year to year tenant of certain premises on Germantown avenue, Chestnut Hill, where the plaintiff has kept an inn for the accommodation of farmers, drovers and others, for which she has duly paid license.</p> <p>The averments contained in this clause I find to be true.</p> <p>3. That the plaintiff has shown that she has been injured by the defendant’s negligence in a manner peculiar to herself and beyond any injury sustained by the general public.</p> <p>a. In that Germantown avenue is the only means whereby plaintiff and others can have access to'the inn, and that egress therefrom and ingress thereto have been prevented by obstructions in the highway in front of the premises.</p> <p>b. In that she was prevented from carrying goods, etc. (necessary to her business), by means of her own team, over this highway, and into her premises, by reason of the unsafe condition of the road, and the obstructions existing in front of her premises, thereby being put to increased expense, besides losing the use of her team.</p> <p>c. In that plaintiff was prevented, in 1881, from passing over the highway, and was compelled to take a circuitous route; because of the obstructions in the highway.</p> <p>d. In that plaintiff’s customers were, by reason of the obstructions left in the highway by the defendant’s negligence, prevented from reaching the inn, whereby plaintiff lost the profit of their patronage.</p> <p>e. In that, because her profits were so reduced, the goodwill of her business has been rendered valueless.</p> <p>f. In that .she was compelled to incur expense, and to lose the time and labor of her servants in repairing the highway immediately in front of her premises twice every year.</p> <p>g. In that she, having erected cattle sheds for the accommodation of her customers, has lost the moneys so expended, because the sheds are now useless and valueless.</p> <p>I am unable to find as requested in this clause. I do not think that the injury done to the plaintiff by the defendant’s negligence has been peculiar to herself and different in kind from that sustained b}r the general public.</p> <p>a. Inasmuch as the plaintiff’s inn was not on a corner of the street, but fronted on Germantown avenue and bad no other outlet, it may be said that Germantown avenue is the only means whereby the plaintiff and others can have access to the inn; but, after traveling a short distance on German-town avenue, one desiring to go from the inn to Germantown or Philadelphia might have turned off and taken a longer and more circuitous route. I da not find that- egress from and ingress to the inn have been prevented by obstructions in the highway in front of the premises. Tdo find, as before stated, that Germantown avenue, between the plaintiff’s inn and Mount Airy and in front of plaintiff’s premises, was not kept in a condition safe and convenient for ordinary travel, and that many persons were prevented, by that condition of the road, from passing by and stopping at the plaintiff’s inn.</p> <p>b, c, d, e,f, g. Under the view, taken by me of the-plaintiff’s right to recover, it is unnecessary to pass more particularly than I have already done upon the other heads of this item. I believe that the plaintiff’s profits were reduced, and her business rendered much less valuable, by the condition of this road. It is true that she did incur expense in repairing the highwajr immediately in front of her premises. It is true also that she did have cattle sheds upon her premises, sufficient to accommodate a large number of cattle, which are now comparatively valueless because few drovers now pass that way.</p> <p>4. That in 1874 plaintiff’s business was productive, her net profit for the year being $950.84, besides which she got the living of a family of seven persons out of the business.</p> <p>5. That the injuries, resulting in the special damage, flowed directly from the defendant’s negligence, which was the causa causans producing the plaintiff’s loss, without which plaintiff would have realized the amounts of the profits lost. The evidence clearly showing that the inn was well kept and popular so long as the plaintiff’s customers were able to reach the place.</p> <p>6. .That plaintiff has shown a loss in the sum of $9,084.54, which had accrued to plaintiff on March 4th, 1882, the day on which the writ in this action issued.</p> <p>These clauses relate to the question of damages. It is unnecessary for me to consider them inore specifically than I have already done, inasmuch as I think the plaintiff has no right to recover damages in this action at all. I find from the evidence that the plaintiff's inn was well kept and popular, so long as the road was in condition to enable her customers to pass that way in reaching the markets of the city of Philadelphia.</p> <p>I now proceed to consider the question of law arising from the foregoing state of facts.</p> <p>The only question in the ease is this: Has the plaintiff shown that the negligence of the defendant has caused her an injury special to herself, and different in kind from that sustained by the general public ?</p> <p>The general rule is well settled that one who is injured by a public nuisance, either in his person or in his property, cannot have his remedy by action, unless he can show a damage which is peculiar to himself, and different in kind and degree from and beyond that which is sustained by the general public.</p> <p>Nearly all of the eases in which plaintiffs have succeeded in - fastening upon municipal corporations a liability, arising from negligence in keeping highways in proper and safe condition, are those of travelers upon the highway. One who is traveling along the highway, and is injured, either in his person or in Ins property, as the result of defects in the highway, can undoubtedly recover all the damage suffered by him from the • municipality whose duty it was to keep the highway in repair, and who has neglected to do that duty.</p> <p>But, even in cases of travelers, the courts have been prompt to apply the doctrine of contributory negligence, and it is well settled in a number of cases that, if the unsafe condition of the highway is known to the traveler before he enters upon it, he cannot recover; because his going over the road, which he knew to be unsafe, was contributory negligence on his part, Which defeats his right. The duty of' the municipality to the traveler on her highways, therefore, with this limitation, may be stated thus: That the municipality must keep the highway in condition, safe and convenient for .ordinary travel, or give notice to the traveler that it is not in safe condition. The effect of notice brought home to the traveler before he enters the unsafe highway is to put upon him the responsibility for any injury that may happen to him.</p> <p>In City of Erie v. Magill, 12 Weekly Notes, 409, decided in December last by the Supreme Court, the law was stated by the court below in the following words:</p> <p>Whatever may have been the condition of the street, or however dangerous, if the plaintiff knew of such danger and could have avoided it by turning aside, or by going to the opposite side of the street, but, instead of doing so, chose to run the risk of passing over the dangerous spot, and so encountered the hurt or injury complained of, she would be guilty of what is called in law contributory negligence, and the verdict must be for the defendant.</p> <p>This was approved by the Supreme Court as a correct statement of the law. In the opinion of the Supreme Court, the following language of the Supreme Court of Massachusetts is quoted with approbation :</p> <p>It is well settled that, if a person knows a way to be dangerous, when he enters upon it, he cannot in the exercise of ordinary prudence proceed and take his chances, and, if he shall sustain damage, look to the town for indemnity: Wilson v. Charlestown, 8 Allen, 137.</p> <p>But there is a manifest distinction between one who is a traveler on the highway and one who, like the plaintiff here, has received no direct injury, but sues for consequential damages, as the occupier of a house and lot fronting upon the highway. It is true that the plaintiff claims that she desired to travel over the highway, and was prevented by reason of its condition; that the horse and wagon which she kept and owned was thereby rendered of less use than they would have been, had the highway been in proper repair; that, when she did use her horse and wagon, she was compelled to spend more time and labor by taking a circuitous route, so that, instead of bringing her goods along the highway by means of her own horse and wagon, as she had been accustomed before to do, she w7as compelled to send them by the railroad and express company and pay charges of freight upon them. But I do not think that her position as one intending to be a traveler makes her injury at all different in kind from that which was suffered by every other member of the general public, who desired to travel on that highway and refrained from doing so because it was unsafe.</p> <p>The only other claim of the plaintiff for damages depends upon her being an occupier of a house and lot fronting upon the highway; and I am unable to see how the damage done to her, as such occupier, by the condition of this road was different in kind from that of every other citizen occupying premises situated similarly, or premises which might have been more conveniently approached by means of this highway than they could be by other highways to which they had access. It is the right of all citizens to travel upon all the highways of the •commonwealth. The circumstance that some of them, by reason of proximity, or other cause, may be accustomed to use one highway more than others do, makes a difference in the amount of damage which accrues to them by being deprived of the use of that highway; a difference in degree merely, and not in kind. Any citizen of Philadelphia, having occasion to pass over that road, and being prevented from doing so by reason of its unsafe condition, would have, in theory at least, the same right of action against the citj7 as is claimed by this plaintiff on account of the denial of that right.</p> <p>The general principle is well stated by Mr. Bigelow, in his note to Rose v. Miles (Leading Cases of Law of Torts, 471).</p> <p>If then the right invaded or impaired is a common or public one, which every subject of the state may exercise and enjoy, such as the use of a highway 'or a canal, or a public landing place, or a common watering place upon a stream,— in all such cases, a mere deprivation or obstruction of the use, which excludes or hinders all persons alike, from the enjoyment of the common right, and which does not cause any special or peculiar damage to any one, furnishes no ground of action in favor of an individual. '</p> <p>The opinion of Chief Justice Bigelow, Willard v. Cambridge, 3 Allen, 574, is also a clear and concise statement of the law on this point. The action was tort for obstructions in a highway which defendant was bound to keep in repair, whereby plaintiff, who had a wharf, was injured in his business; his customers were unable to. come to his wharf; he lost sales and was subjected to increased expense and trouble in delivering what he had already sold, and in .getting in his crops. He had been obliged to abate rents of houses, etc.</p> <p>The defendants demurred, which demurrer was argued before the full bench.</p> <p>The opinion of the court was as follows:</p> <p>Bigelow, C. J. — We cannot distinguish 'this case from those in which it has been determined by this court, that no action at law can be maintained, to recover damages for the obstruction of a highway, unless a party can prove that he has sustained some special and peculiar damage thereby, different in kind, and not merely in degree, from that which is occasioned to other pei'sons by the alleged nuisance : Quincy Canal Co. v. Newcomb, 7 Met., 276; Brainerd v. Connecticut R. R., 7 Cush., 511; Blood v. Nashua and Lowell R. R., 2 Gray, 140 ; Brightman v. Fairhaven, 7 Id., 271; Harvard College v. Stearns, 15 Id.; Hartshorne v. South Reading, ante, 504. No doubt the annoyance and Injury to the plaintiff by the acts alleged in the declaration were much greater in amount than those which were caused to any other person having occasion to use the same highway. But it was á similar sort or species of damage. His near proximity to the bridge and the nature of the business in which he was engaged did not change the kind of damage to which he was subjected, but only increased the extent of the injury. Every traveler having occasion to pass the bridge or to transport goods or merchandise across it, incurred in some degree additional trouble and expense, as well as a loss of time, by being compelled to seek another and more circuitous route. These elements of damage are the same as those claimed by the plaintiff, and are not special or peculiar to him, so as to furnish a good cause of action. The same is true of the alleged loss of rents. Every person owning property on the highway leading to the bridge, near to or remote from the place of the alleged obstruction, sustained a similar injury: Sm. v. Boston, 7 Cush., 257. The case of Stetson v. Faxon, 19 Pick., 147, is distinguishable from the case at bar, by the leading fact that thei’e the nuisance causing the obstruction to the plaintiff’s premises, was erected directly against and abutting on the estate of the plaintiff, and diverted travel therefrom, and it did not appear that any other person sustained a similar injury.</p> <p>Demurrer sustained.</p> <p>In Mrs. Gold’s case there was no pretence that she had any right of passage over the street more than such as was common to all the public, and the extent of the injury.done her is that, by the negligence of the defendant, the exercise of this right has been rendered less safe and convenient than it ought to have been: Bigg v. Corporation of London, L. R., 15 Equity, 376.</p> <p>In Hill v. City of Boston, 122 Mass., 344, the whole subject of the liability of municipal corporations to civil actions for neglect of duty, was most critically and fully examined in an able opinion, by Chief Justice Gray, and after a careful review of the decisions in England, on this subject, he reaches the following conclusion:</p> <p>The result of the English authorities is, when a duty is imposed upon a municipal corporation for the benefit of the public, without any consideration or emolument being received by the corporation, it is only where the duty is a new one, or is such as is ordinarily performed by trading corporations, than an intention to give a private action for a neglect of its performance is to be presumed.</p> <p>And after going over the American cases on the same subject, the learned Judge comes to the conclusion that those decisions, which hold the law to be otherwise, are not founded on sound principles.</p> <p>The duty of keeping the highways within the limits of the city in repair is not a new one. No consideration or emolument is received by the corporation for the performance of that duty, and, according to the doctrine stated, the intention to give a private action for its neglect is not to be presumed. The duty is imposed solely for the benefit of the public, and is not of a nature ordinarily performed by trading corporations.</p> <p>It may be added to this, that the results of holding that the city of Philadelphia is responsible to the property owner for consequential damages, arising from neglect in repairing the streets, would, in my opinion, be very unfortunate. Who shall say what condition of disrepair, or what amount of negligence, shall be sufficient to warrant a verdict against the city? If every man who lives upon a street has a right of action against the city every time some portion of the street, more or less distant from his residence, shall fall intoan unsafe condition, and be so allowed to remain for any length of time, it is impossible to say what number of suits against the city might be brought upon cases more or less trifling.</p> <p>From these considerations, I am of the opinion that, although the evidence establishes the duty of the defendant to keep the streets in repair, and that the defendant has neglected to perform that duty, and that consequential damage has been suffered by the plaintiff, as the result of that negligence, I do not think she has the right to maintain this private action. I therefore find and report in favor of the defendant.</p> <p>Exceptions were filed by the plaintiff which were dismissed and judgment entered for the defendant, whereupon the plaintiff took this writ and assigned for error, inter alia, the entering of judgment for the defendant.</p> <p>— The injury inflicted on the plaintiff in the case at bar is particular, and different in kind from that sustained by the public, and that by the words “ the public ” is meant the people at large, the citizens of the state, and not that very limited number of the whole body of the public who happen to live on Germantown avenue, at Chestnut Hill. The referee does not find that any other person was injured, but even had the injury extended to others, the plaintiff could yet maintain her action for her own particular injury. “ It is no defence for a wrongdoer to show that he by the same act inflicted like injury upon other persons. No matter how numerous the persons, each is entitled to compensation for his injury:” Francis v. Schoellkopf, 53 N. Y., 152; Stetsom v. Faxon, 19 Pick., 147; Lansing v. Smith, 4 Wend., 25; Wet-more v. Story, 22 Barb., 497; Spencer v. Railway, 8 Simons, 193; Borrows v. Pixley, 1 Root, 362; Wood’s Law of Nuisances, Sec. 678; Sansom v. Smith, 8 Simons, 272; Brown v. Watson, 47 Maine, 161.</p> <p>The injury to the plaintiff, being peculiar to herself and different in kind from that sustained bj’- the public, the plaintiff is entitled to maintain her action and recover to the extent of her loss:—</p> <p>1. Because her right of access to and from her premises, not only for herself but for her customers also, has been hindered. The cases are to the effect, that an occupant of land bordering on a highway has, by such occupancy, a right to free access; that such right is distinct from his right, as one of the public, to pass over the highway, and if this right be impeded, he may recover his loss of profits in the business done on the premises: Rose v. Groves, 5 Man. & G., 613; Lyon v. Fishmonger Go., 1 App. C. (L. R.), 662; Fritz v. Hobson, L. R., 14 Chan Div., 542; Pittsburg R. R. v. McCutcheon,18 W. N. 0., 527 ; Venard v. Cross, 8 Kansas, 248; Knox v. New York, 55 Barb., 404; Wetmore v. Story, 22 Id., 497; Smith v. Boston, 7 Cush., 256 ; Farelly v. Cincinnati, 2 Disney, 541; Stetsom v. Faxon, 19 Pick., 147; Williams v. Providence, 11 R. I., 447; Prosser v. Ottumwa, 42 Iowa, 511; Garitee v. Baltimore, 53 Mary’d, 422.</p> <p>2. Because the regular customers of the plaintiff were diverted- from her inn and she thus lost the profits of her business: Dillon on Mun. Corp., sec. 730 and note; Iveson v. Moore, Ld. Raymond, 486; Wilkes v. Hungerford Market, 2 Bing. N. C., 281; Senior v. Metr. Railway, 2 H. & C., 258; Benjamin v. Storr, L. R. 9, C. P., 400; Fritz 'v. Hobson, L. R. 14 Chan. Div., 542; Borrows v. Pixley, 1 Root (Conn.), 362; Stetsom v. Faxon, 19 Pick., 147; Prosser v. Ottumwa, 42 Iowa, 511; Farelly v. Cincinnati, 2 Disney, 541; Pittsburg v. Scott, 1 Barr,' 309; Garitee v. Baltimore, 53 Mary’d, 422; Enos v. City of Hamilton, 27 Wisconsin, 256; Spencer v. Railway, 8 Simons, 193; Cook v. City of Bath, L. R. Eq. Cases, 177; Blanc v. Klumpre, 29 California, 156.</p> <p>Nor are those which have been already stated the only grounds upon which the plaintiff is entitled to maintain her action. The referee found not only that the defendant was guilty of negligence in failing to repair, but that the city put quantities of soft earth or loam directly in front of plaintiff’s premises, and that this deposit was increased by other quantities of mud washed down by the rain from that part of the road on the hill above the inn, and lodged in front of the inn and entrances thereto.</p> <p>— No person can have an action for a public nuisance, but if he suffers a special damage from it he may maintain a special action for that damage, but he must show that it distinctly bears that character. The diversion of ordinary traffic is not such an injury: Rex v. The Bristol Dock Company, 12 East., 429; Hubert v. Grove, 1 Esp., 148; London and Northwestern Railroad Co. v. Smith, 1 Mac. & G., 216.</p> <p>All the cases in which the claim to compensation has, under such circumstances, been directly recognized, are cases affecting land as land: Ricket v. The Directors of the Metropolitan Railway Company, Law Rep., 6 English . and Irish Appeal Cases.</p> <p>In Hill v. City of Boston, 122 Mass., 344, Gray, C. J., cites the case of Russell v. Men of Devon, 2 T. R., 667, in which it was held that an action would not lie against the inhabitants of a county for an injury sustained in consequence of a county bridge being out of repair, and the remarks of Ashhxtrst, Judge, in that case, are applicable to the case at bar.</p> <p>“It has been said that there is a principle of law on which this action may be maintained, namely, that where an individual sustained an injury by the neglect or default of another, the law gives him a remedy. But there is another general principle of law which is more applicable to this case, that it is better that an individual should sustain an injury than that the public should suffer an inconvenience.”</p> <p>Cases are cited by Mr. Chief Justice Gray to the same effect in New -York, Bartlett v. Crozier, 17 Jones, 439; New Jersey, Freeholders of Sussex v. Strader, 8 Harrison, 108; Michigan, Commissioners of Highways v. Martin, 4 Mich., 557; Ohio, Hamilton Commissioners v. Mighels, 7 Ohio St., 109; New Hampshire, Eastman v. Meredith, 36 N. H., 284.</p> <p>The Pennsylvania cases are alluded to as follows:</p> <p>“ Of the two Pennsylvania eases cited, one was the case of a city being in possession of a public wharf, exercising exclusive supervision and control over it, and receiving tolls for its use, and therefore rightly held liable to an action for special injury to an individual, in consequence of its neglect to keep the wharf in proper condition for use: Pittsburgh v. Grier, 22 Pa. St. Rep., 54.</p> <p>In the other, a city which was bound by its charter to keep the streets in repair, was held liable to an action for an injury occasioned by its neglect to do so : Erie v. Schwingle, 22 Pa. St., 384.</p> <p>But in Pennsylvania, town and counties are held liable to similar actions: Dean v. New Milford, 5 W. & S.,-545 ; Humphreys v. Armstrong, 56 Pa. St., 204; Rapho v. Moore, 68 Pa. St., 404.</p>

145. Appeal of Maiy Dickerson, widow, from the decree of distribution of said court in the estate of her husband, John Dickerson,… Held: that the terms of the trust as originally created, were as subsequently disclosed by the will; yet the fact that the grantor reserved an interest during life in the proceeds of the property, and gave a future benefit to other persons named, gives no implied right of revocation, even had he sought to exercise it: Greenfield’s Estate,…

<p>1. Under the Act of April 9th, 1870, P. L., 44, a party to the record will be permitted to testify to a fact existing after the death of one who is a party to the record through his legal representative, where the existing fact merely tends to prove by implication that the same or a similar state of facts existed prior to the death of the decedent, but where it appears that the testimony necessarily relates to that which existed, or took place in the decedent’s lifetime, the parly will not be permitted to testify.</p> <p>2. In an action of ejectment by A, claiming to be a sister of B, who died seized of the land, described in the writ, the deposition of A, the plaintiff, was admitted in evidence to prove her relationship to B. Mid, that this was error.</p> <p>S. It is a mistake to bring an action in the name of an attorney in fact; but the judgment will not be reversed for that reason, as it is amendable in the court below, or in the Supreme Court</p>

<p>1. A married woman is not liable for the breach of a contract made by her for articles necessary for the support of the family of herself and husband.</p> <p>2. To maintain an action against a married woman on her contract, the pleadings must set out, and the evidence must sustain, not only that the debt was contracted by her, but that it was incurred for articles necessary for the support of the family of herself and husband.</p>

4, of Philadelphia County. Of January Term, 1886, No. 200. This was a scire facias sur mortgage brought by the city of Philadelphia against Joseph Ross and Eugene S. Stull. The facts as they appeared on the trial of the case before Arnold, J., sufficiently appear in the opinion of the Supreme Court.

1, of Philadelphia county: Of July Term, 1886, No. 200. This was an action of ejectment brought to recover a lot of ground with the buildings thereon, situated in the city of Philadelphia, on the east side of Seventh street, 226 feet 3f inches northward from the north side of Susquehanna avenue, containing in front on said Seventh street 30 feet, and extending in depth eastward 174 feet 10-|- inches to Marshall street. Plea, not guilty.

143. Trover and conversion by Rose Bella Flanigan against Thomas Flanigan. Plea, Not guilty. The following are the facts as they appeared on the trial of the case before Finletter, J. The plaintiff and Patrick Flanigan were husband and wife. About the 12th of December, 1883, the husband being sick, they made the following agreement. Philadelphia, Dec. 12,1883.

<p>1. An action cannot be brought on the bond, required by the Act of March 17th, 1869, P. L., 8, before an attachment can issue, until the final determination of the action commenced by said attachment. The condition, of the bond, ‘ ‘ if the plaintiff shall fail to prosecute the action commenced by said attachment with effect” cannot be construed to mean if he shall fail to prosecute the attachment.</p> <p>2. “Action” and “ attachment” are not synonymous in said Act.</p>

<p>1. Where the title of all the parties is set out in a petition to the Orphans’ Court for a partition, and it appears therein that any dispute respecting it has been adjudicated, and in consequence the tenants in common arc in joint possession, the mere denial of the tenancy and right of partition is not enough to require the court to suspend proceedings. They must point out some defect in the petition, or aver their own title or adverse possession to justify the court to refuse to proceed in the partition.</p> <p>2. An appeal from the decree of the Orphans’ Court awarding an inquest in partition does not lie.</p>

<p>Certiorari to the Court of Quarter Sessions of the Peace of Philadelphia county: Of January Term, 1887, No. 20.</p> <p>The record in this case showed that, on the petition of Joseph Dungan, the said court appointed a jury of six to assess and apportion the damages in re vacating Center street.</p> <p>The juiy entered upon the discharge of their duties and filed the following report:</p> <p>On Thursday, May 28th, 1885, upon notice given to the Pennsylvania Schuykill Valley Railroad Company, David W. Sellers, Esq., appeared in behalf of the said company and was heard by this jury upon the questions at issue. Mr. Sellers, in behalf of the said company, offered neither evidence nor arguments touching the just amount of damages to be assessed to claimant, nor the just amount of benefits which should be charged upon the said company, but only urged that the law did not permit any assessment of benefits upon lands for the vacation of a street.</p> <p>And now, after having thus duly viewed the neighborhood and given full hearing to all the parties, the jury find that the land mentioned in the petition, belonging to the claimant, Joseph Dungan, has received special damage over and above any which may have been received by it in common with neighboring land in general, through the said vacation, in the amount of seven hundred dollars; and that further, the land owned by the Pennsylvania Schuylkill Valley Railroad Company in the localit}' of the said portion of the said street, has received special benefit from the said vacation over and above any benefit which may have been received by it in common with neighboring lands in general, in an amount not less than seven hundred dollars.</p> <p>The jury further find that no other land than that of the Schuylkill Valley Railroad Company has received any special benefit from the said vacation.</p> <p>The jury, therefore, report that, in their opinion, the said claimant is entitled to the sum of seven hundred dollars,-and that they assess and apportion the whole of the said sum of seven hundred dollai's against the Pennsylvania Schuylkill Valley Railroad Company.</p> <p>To this report the following exceptions were filed, inter alia, by the Schuylkill Railroad Company.</p> <p>.1. That said report is invalid, in that the land owned by this exceptant, and alleged to have received a special benefit, is not described with any certainty, so that this exceptant can know if the road bed, or the depot for freight, or the station lot for passengers, is intended.</p> <p>2. That said apportionment is invalid, because the Act of April 1st, 1864 (P. Laws 207), under which the jury in this case has proceeded, does not authorize an apportionment of damages consequent upon the vacation of a street.</p> <p>The following exceptions were filed, inter alia, by the city of Philadelphia.</p> <p>First. — Said report is bad, because it awards damages in the amount of seven hundred dollars to petitioner and claimant.</p> <p>Fourth. — Said report is not in conformity with law.</p> <p>These exceptions were sustained, the court, Aknold, J. filing following opinion:</p> <p>The Act of April 21st, 1858, -which makes it the duty of juries selected to assess damages for opening, widening, and vacating streets to assess and apportion the damages against'such owners of land as shall be benefited thereby, is deficient in not directing the jury to specify the property benefited, so that the benefits may be collected out of that property. There is no personal liability for taxes of that nature: Creighton v. Manson, 27 California, 618; cited in Hammett v. City of Philadelphia, 65 Pa. St. Rep., 146. The Act of April 1st, 1864, which directs the jury to specify the properties benefited, applies only to damages for opening streets. Nor can damages for vacating a street be charged to the municipality, unless the councils assume the payment thereof under the Act of 1858. There is no obligation on the part of the city to provide compensation for the vacation of a public street: Paul v. Carver, 24 Pa. St. R., 207.</p> <p>The exceptions of the railroad company, and the first and fourth exceptions of the city, are sustained, and the report set aside.</p> <p>The petitioner, Joseph Dungan, thereupon took this writ, and assigned the action of the court in sustaining said exceptions and setting aside the report for error.</p> <p>— With respect to the constitutionality of the Act of 1858, we submit the following considerations :</p> <p>1. Thfe Act expressly requires the assessment to be against the owners of land benefited. This has been the uniform construction by the Court of Quarter‘Sessions. In Re Moyer Street, 6 Pa., 81; Chestnut Avenue, 3 Id., 265.</p> <p>2. The Act provides for the most direct application of the approved principle upon which municipal assessments are sustained.</p> <p>Municipal assessments are referable to the taxing power. The principle of their apportionment is that of an actual assessment in proportion to the benefit conferred. Whether for paving, grading, culverts, opening or vacating of streets, or any other purpose for which they are authorized, they are but various developments of that principle of local taxation which “ assesses on the property benefited, or its owner, a tax in proportion to the superadded value of the property, caused by the local improvement of which this property has a peculiar advantage beyond that of others not in like circumstances: ” Washington Ave., 69 Pa., 352; Seeley v. Pittsburg, 82 Id., 360; Saw Mill Run Bridge, 85 Id., 163.</p> <p>The assessment is conclusive as to the benefit conferred, so far as the question is material in the present stage of the case. Commonwealth v. Woods, 44 Pa., 113; Wray v. Pittsburg, 70 Wr., 365; Hammett v. Philadelphia, 65 Pa., 146.</p> <p>No other questions than those raised by the exceptions filed, can be considered in this court.</p> <p>4. The uniform practice of the legislatures in every State in the Union, has been to make the owner personally liable in its discretion, and personal judgments without number have been entered: Baltimore v. Cemetery Co., 7 Md., 586; Clemens v. Baltimore, 16 Id., 208; Lowell v. Hadley, 8 Met. (Mass.), 180; People v. Brooklyn, 4 N. Y., 420; Bennet v. Buffalo, 17 Id., 383; Hill v. Higdon, 5 Ohio (N. S.), 243; Creighton v. Scott, 14 Id., 439; Bonsall v. Lebanon, 19 Id., 422; Nicholls v. Bridgeport, 23 Conn., 189; Williams v. Detroit, 2 Mich., 560; Dillon on Municipal Corporations, § 752.</p> <p>■ In New Haven v. Railroad Co., 88 Conn., 423, the act under consideration provided that the assessment should be a lien upon the property benefited. It was held, that the right and power to assess were in no way dependent upon a lien; that the lien was intended merely as security in addition to a proper remedy at law; and that an action of debt would lie to recover such assessment.</p> <p>In Pennsylvania; statutes have been passed, authorizing such assessments to be collected by personal action, or by distress upon the goods and chattels. See opinion of Judge Reed in Hammett v. Phila., 65 Pa., 146 ; Pennoclc v. Hoover, 5 Rawle, 291; Act of May 23,1874, § 37, P. L., 250; Act of May 1, 1876, § 3, P. L., 86.</p> <p>5. Where an assessment is levied, according to the approved principle of apportionment, the remedy for the recovery thereof is a matter of legislative discretion: Desty on Taxation, 286.</p> <p>6. The fact that no express provision is made for the collection of the assessment is immaterial at present: R. R. Co’s Appeal, 32 Cal. 499; People v. Lawrence, 36 Barb., 181.</p> <p>The legislature may remedy any defect by further legislation; or as was said in McMasters v. Com., 3 Watts., 392: “It is an elementary principle that there is no right without a remedy, and a writ might have been devised, without legislative aid, which would have afforded relief to the parties.” New Haven v. R. R. Co., 38 Conn., 423.</p> <p>7. A railroad corporation may be assessed for benefits without describing the particular property benefited with sufficient certainty to enable a lien to be filed.: R. R. Co’s Appeal, .32 Cal., 499; Bridgeport v. R. R. Co., 36 Conn., 255; New Haven v. R. R. Co., 38 Id., 423; Chicago v. Baer, 41 111., 306 : Parmalee v. Chicago, 60 111., 267; R. R.> Co. v. Spearman, 12 Iowa, 112.</p> <p>The Constitution of the State does not confer any right to compensation upon the land owner for the vacation and closing of a public highway. Article 16, section 8, relates only to the taking, injury or destruction of private property by the construction or enlargment of public works, &c.</p> <p>. The legislature has the power to provide for the vacation of a public street, without compensation for an alleged injury or inconvenience to an owner of land; Paul v. Carver, 24 Pa. St., 207 ; Bauer v. Andrews, 7 Phila., 359; Godley v. Phila., 637.</p> <p>It is suggested:</p> <p>1. That it is, to say the least, doubtful whether the Court of Quarter Sessions in 1858 had any power to vacate a public street forming part of a town plot; and</p> <p>2. That it is certain that it has never granted the right nor provided a system for the assessment of damages for the vacation of a public road, lane or alley, unless the right is to be inferred from theAct of 1858 and a system for assessment, built up by analogy and judicial construction, and it is not to be overlooked that the jurisdiction of the Quarter Sessions in road matters is purely statutory.</p> <p>If the Act of 1858 is to be construed as granting for the first time a right of action for damages in this class of cases, and the learned judge of the Court below is right in his opinion that that part of the Act which provides for payment by a personal assessment upon the owners of lands benefited is nugatory and incapable of enforcement, then it would naturally follow that the Act is inoperative, for it is expressly provided that the municipality shall not pay the damages except by ordinance, upon a two thirds vote of the Councils upon a call of the yeas and nays, which are to be recorded in the journals of the said Councils. The opinion of the learned judge in the court below, and the report of the case in 17 W. N. C., p. 809, are respectfully referred to as part of this argument.</p>

40. Ejectment by George Pearson against Benjamin .Sharp and Thomas Heathcote, executors of the last will and testament of Joseph F. Heathcote, deceased, et al. for a lot of land in the city of Philadelphia. Plea, not guilty. On the trial before Biddle, J., the plaintiff showed title to the land described in the writ in himself derived from Thomas S. Bonsall, August 12th, 1868.

<p>I. In proceedings by a landlord against his tenant, before a magistrate, under the Act of December 14th, 1863, P. L. of 1864, 1127, to recover possession of the demised premises, every essential fact necessary to give the magistrate jurisdiction must appear affirmatively on the face of the record, or the proceedings are coram nonjudice and’utterly void.</p> <p>2. A demise, “At the yearly rent of the interest and taxes accruing thereon,” is not “a certain rent,” as required by the Act of March 6th, 1872,, ,. P. L., 22, necessary to give a magistrate jurisdiction, in a summary-proceeding by a landlord against his tenant to recover possession of the demised premises, under the Act of December 14th, 1863.</p>

- 2, of Philadelphia county: Of July. Term, 1886, No. 137. Replevin for certain goods and chattels of the value of $935 by Angelina Nutt against Gertrude Pleasanton. Held: since the Act of 1848, that a wife may bring suit to recover property belonging to her, in her own name: Cumming’s Appeal, 1 Jones, 272; Goodyear v. Rambaugh, 1 Harris, 480. Whenever the wife is interested, the husband cannot be a witness: Pringle v. Pringle, 59 Pa. St., 228; Snyder v. Snyder, 6.

1, of Philadelphia county: Of January Term, 1887, No. 60. This was a scire facias sur mortgage brought by William P. Uhlinger against Samuel Hartranft who, after the bringing of' this suit, made an assignment for the benefit of his creditors to Frank A. Hartranft.

<p>1. The insolvency of a building association puts an end to its operations, as a building association. To a certain extent, it also ends the contract between it and its members respectively, and nothing remains but to wind it up in such a manner as to do equity to creditors and between the members themselves.</p> <p>2. A borrowing stockholder, in settling with an insolvent building association, should be required to repay what he actually received with interest. I-Ie will then be entitled, aiter the debts of the corporation are paid, to a pro rata dividend with the non-borrowing stockholder for. what he has paid upon his stock.</p> <p>3. In entering judgment against a borrowing stockholder, in favor of an insolvent building association, on a mortgage given to secure the payment of a loan, damages should be assessed by charging the defendant with the sum actually received on the.mortgage, and interest on the same, and crediting him with all actual payments and interest. But his payments upon his stock, assigned as collateral security for the payment of the mortgage, should not be credited on the mortgage as pavments of either principal or interest.</p>

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1887, No. 72.</p> <p>This was an action of covenant brought by The Vulcanite Paving Company of Philadelphia, and The Barber Asphalt Paving Company of Washington, D. C., to the use of the city of Philadelphia against the Philadelphia Traction Company.</p> <p>The following are the facts of the case as they appeared in the court below :</p> <p>On October 15th, 1884, the city of Philadelphia by their agents, the commissioners for the erection of the public buildings, made a contract with The Vulcanite Paving Company, of Philadelphia, and The Barber Asphalt Paving Company, of Washington, D. C., by which said paving companies agreed to “grade and pave the whole of the roadways surrounding the.new city hall, furnishing all the materials and labor complete, including Broad street from the south line of the curb on Penn square to tbe north line of the passenger railway track on Chestnut street.”</p> <p>The said pavement was to be of Trinidad asphalt, upon a hydraulic concrete base eight inches in thickness, with gutters eighteen inches in width of Neüchatel asphalt, and the work and materials were to be done and furnished according to certain specifications annexed to the contract.</p> <p>By the terms of the contract the work to be done and the materials furnished were to be subject to the approval of the architect and the superintendent of the public buildings, and payments made for the said work upon bills certified by the architect and superintendent and the chief commissioner of highways, as shown by the following paragraph of the contract :</p> <p>7. All the said work is to be done and materials furnished under this contract to the entire satisfaction and acceptance of the architect and superintendent; and either the said architect or superintendent is to have full and absolute power and authority, from time to time, and at any time, to reject any work done or materials furnished under this contract, which they or either of them may think not properly done or unfit; and the said parties of the second part agree forthwith, at their own cost and expense, to do over again any and all such work, and replace all such materials so rejected; and in case of neglect or refusal by the said parties of the second part to do over again and replace the same respectively, the said architect or superintendent are hereby authorized and empowered, upon or after the third day after notice of any such rejection, to cause the same to be done over again and replaced respectively, and to charge the cost and expenses of and attendant upon such doing over and replacing to the said parties of the second part; and the amount so charged is to be retained and deducted from the payment and payments due said parties of the second part under this contract, next after any and every such doing over again and replacing.</p> <p>The decision of the architect, as to the character of the work • done or materials furnished, as above provided, and his consequent rejection thereof, is, under all circumstances, and in every event, to be final, binding and conclusive on the parties hereto.</p> <p>For this work the city of Philadelphia agreed to pay The Vulcanite Paving Company and The Barber Asphalt Paving Company at the rate of three dollars and fifty cents per square yard.</p> <p>The Philadelphia Traction Company, desiring this pavement to be laid around the buildings, agreed to pay the one fifth part of the cost thereof, and accordingly, on the sixteenth day of - October, 1884, executed a contract indorsed upon the contract between the city and the paving companies as follows:</p> <p>The Philadelphia Traction Company assent to the terms and conditions of the within contract, and agree to wholly assume, be responsible for, and pay to the parties of the second part-the one fifth part of the cost of grading and paving the whole of the roadways surrounding the new city hall, and the one fifth part of the cost of grading Broad street, from the south line of the curb on Penn square to the north line of the passenger railway track on Chestnut street, as within provided. In witness whereof, they have hereunto, by their president affixed their corporate seal, attested by their secretary, this sixteenth day of October, A. D. 1884.</p> <p>The plaintiff filed in the case a copy of the contract and the following averment:</p> <p>That the total cost of grading and paving the whole of the roadway surrounding the new city hall was 17,877.52.square yards, at $3.50 per square yard, $62,571.32.</p> <p>That the total cost of grading Broad street, from the south line of the curb on Penn square to the north line of the passenger railway track on Chestnut street, 1244^- cubic yards, at 62 cents per cubic yard, $771.59.</p> <p>That the defendant, the Philadelphia Traction Company, by its contract, agreed to pay to the Vulcanite Paving Company and the Barber Asphalt Paving Company the one fifth part of the cost of grading and paving the whole of the roadway surrounding the new city hall, and the one fifth part of the cost of grading Broad street, from the south line of the. curb on Penn' square to the' north line of the passenger railway track on Chestnut street, the said one fifths amounting to twelve thousand six hundred and sixty-eight dollars and fifty-eight cents ($12,668.58), which said sum the Philadelphia Traction Company refused to pay, and the said sum was paid by the city of Philadelphia to the said Vulcanite Paving Company and the Barber Asphalt Paving Company.</p> <p>. That the said work has been entirely completed, in accordance with the said contract and specifications.- And the said Vulcanite Paving Company and the Barber Asphalt Paving Company having assigned their claim against the Philadelphia Traction Company to the city of Philadelphia, the said the city of Philadelphia brings suit to recover the said amount, to wit, twelve thousand six hundred and sixty-eight dollars and fifty-eight cents ($12,668.58). . .</p> <p>The defendant filed the following affidavit of defence.</p> <p>• That said defendant is advised that said copy is not such an instrument of writing as entitles the plaintiff to have and require of the said defendant an affidavit of defence thereto, but without waiver of this objection on behalf of said defendant this deponent saith,</p> <p>That it is not true, as in said averment set forth, that said work referred to in said contract has been entirely completed in accordance with the said contract and specifications, but on the contrary, this deponent avers that after said alleged completion of said work defendant had five samples ■ of asphalt taken from said pavement around the city hall. These samples were left with Charles M. Cresson, an expert, to determine if the pavement was laid of the quality and kind required by said contract and specifications.</p> <p>The said Cresson made a report in writing, of which the following is a copy:</p> <p>Here follows the report at length concluding as follows:</p> <p>There is, then, a deficiency of over 66 per cent, in the amount of carbonate of lime required and an excess of over 11 per cent, in the amount of sand allowed, based upon the maximum percentage set out in the specification. It is evident from this statement that the three samples of asphalt surfacing analyzed vary materially in composition from that one which would result from the use of the formula; that is, they are not compounded in the manner specified, and do not constitute an equivalent asphaltic surfacing with that required by the specification. Charles M. Cresson, M. D.</p> <p>And deponent saith he believes the facts set forth in the above and foregoing analysis to be true, and that the defendant will be able to prove the same to be true on the trial of this case.</p> <p>And deponent further saith that the defendant is advised that as said roadway is not substantially conformable to the said contract and specifications, and does not constitute an equivalent, that no liability to pay for the same arises on the covenant entered into by the said defendant.</p> <p>A rule was entered to show cause why judgment should not be entered for want of a sufficient affidavit of defence.</p> <p>This rule the court, Mitchell, J., discharged, filing the following opinion:</p> <p>In view of the number of separate courts in this county and the consequent difficulties of practitioners, it becomes specially important that settled practice should not be departed from. For that reason, this court has uniformly resisted the efforts to enlarge the operation of averments supplementary to copies of instruments filed, to obtain judgment for want of affidavits of defence.</p> <p>As said by Chief Justice Sharswood, in Ins. Co. ¶. Brierly (10 Weekly Notes 45), “It doubtless would be very convenient for plaintiffs to obtain judgment by filing averments ” in addition to the instrument itself. But it is always to be remembered that the question is not whether the plaintiff has a good cause of action, but whether he has a complete case on the face of the instrument. It was accordingly settled many years ago in Imhoff v. Brown (6 Casey, 506), that averments are not permissible to enlarge or complete the plaintiff’s claim, and the practical formula established in the late District Court, where nearly all such questions arose, was whether the instrument itself makes so complete a case that a jury can give a verdict upon it alone without other evidence.</p> <p>This general rule has been repeated in many cases, of which, however, ifc is sufficient to refer to only a few. In Lasb v. Von Neida (42 Leg. Int. 172, 16 Weekly Notes 93), it was held that averments of payment of interest within twenty years would not make out a case against the presumption of payment, Paxson, J., saying, “The credits are no part of the bond, and are not evidence of such payments until proved.” In Ins. Co. v. Brierly, above quoted, the practical rule of the District Court is cited with approval by the Supreme Court as a settled rule. This ought to be conclusive of the present case. Calhoun v. Monongahela Building Association (8 Out., 392), though upon a somewhat different'class of instruments, is a very strong illustration of the limits in the office of an averment, as the rule of court allowed the copy of the instrument to be supplemented by an averment, notwithstanding which the Supreme Court reversed the court below on the application of its own rule.</p> <p>The instrument sued on in the present case is an agreement to pay for work to be done thereafter. On the face of the paper there is no proof that the work ever was done at all, and this proof cannot be supplied by an averment.</p> <p>Rule discharged. Exception by plaintiffs to ruling and decision of the court.</p> <p>The plaintiff thereupon took this writ assigning for error the action of the court in discharging said rule.</p> <p>— In stating that the instrument was for the payment of money in future, and, therefore could not require an affidavit of defence, the court evidently took the ground that the instrument was an executory contract, and, therefore, not within the affidavit rule.</p> <p>This certainly was error, for it has been laid down by Judge Thayer, in a very thorough and exhaustive opinion in the case of Sutton v. Athletic Club, 4 W. N., 90 (which case has been considered a leading one and has been affirmed by the Supreme Court in Matthews v. Sharp, 3 Outerbridge, 560), that just such cases as the present one did come within the affidavit of defence law.</p> <p>He also cited Dewey v. Depuy, 2 W. & S., 556; Montgomery v. Johnson, 1 Miles, 324; Rile v. Worl, 1 Phila., 45.</p> <p>The averment sets forth compliance with the contract by the plaintiffs, i. e., the completion of the work and default by the defendants, i. e., the refusal to pay for the work done, and liquidates the sum which the defendants agreed to pay, by setting forth the exact amount of the one fifth of the cost of the work. And that is all that the averment does; it does not attempt to enlarge the plaintiff’s claim or to allege any facts against the defendants, outside of the contract sued on. It simply follows tlie law laid down in other, cases, in which averments, alleging the same matters, have been allowed, and does not in any manner attempt to establish any liability of the defendants, for the liability was fixed by the contract itself, independent of any averment which was or could have been filed in this case: Fertig v. Maley, 5 W. N. C., 133; Johnson et al. v. Cowan, 9 P. F. S., 275; Bank v. Thayer, 2 W. & S., 443; Ourhoff v. Brown, 6 Casey, 504; Dickerson v. MoCausland, 3 W. N. C., 327; Kerns v. Life Ins. Co., 86 Pa. St., 171; Journal of Commerce v. Reever, 17 W. N. C., 222; Leonhardt & Son v. Curtiss, 18 Id., 63.</p> <p>The only defence which the defendant attempts to make is to a part of the pavement; that is, to the asphalt surfacing. There is nothing in the affidavit of defence, nor in the analysis, which alleges that either the grading on Broad street, south of the curb line on Penn square, or the grading, or the hydraulic concrete base of the roadways around the buildings, was not properly done; in fact there is nothing said in the affidavit about the grading or concrete base, which, formed a. very large part of the work and material, under the contract for the one fifth of the cost of which defendant promised to pay.. And. it cannot be inferred' that it was not done in accordance with the contract, but, on the contrary, it is to be presumed that it was properly done. Whatever is not said in an affidavit of defence is taken not to exist': Lord v. Ocean Bank, 8 H., 381: Gould v. Bush, 13 W. N. C., 29; Watson v. Galloway, 1 W. N. C., 109.</p>

, Error to the Court of Common Pleas, No. 4, of Philadelphia Qounty: Of January Term, 1887, Nos. 77, 78,105 and 111. These were four municipal claims filed by the city of Philadelphia, and by the city of Philadelphia to the use of McManus and O’Rourke, and to the use of Horter, respectively against the Haddington M. E. Church, Edward Pepper and Jesse Coulston. Writs of scire facias were issued on these claims to recover the same.

<p>Error to the Court of Common Pleas No. 1, of Philadelphia County: Of January Term 1887, No. 80.</p> <p>Ejectment by D. Dodge Tomlinson and Caroline B., his wife, John M. Armington, William Elliott and Sarah H., his wife. Charles Ganshine and Ann E., his wife, and Monterey Arming-ton against Christiana Horn. Walter L. C. Biddle, who as landlord was admitted to defend, pleaded not guilty,</p> <p>The following are the facts of the case as they appeared on the trial before Peirce, J.</p> <p>By virtue of a judgment against John F. Armington entercd in 1847 and subsequently revived, the property which was the subject of the action in the court below was levied upon by the sheriff, who by deed of- December 30th, 1856, conveyed the same to John Wurfflein in fee, subject to a certain yearly ground-rent of forty-two dollars. Rebecca Snowden, in whom the said ground-rent was vested, by deed of April 12th, 1867, granted and conveyed the same to Wurfflein. On May 20th, 1869, Wurfflein conveyed this property to Jacob Knoell in fee. In this last deed the union of the two estates in Wurfflein is recited ; the estate in the ground and the estate in the ground-rent, whereby (so runs the recital) the ground-rent merged and became extinguished. In 1877, the present defendants in error instituted an action of ejectment in Court No. 4, to recover this property from the above-named Jacob Knoell. In said action the present defendants in error (as plaintiffs therein) contended that by deed from the above-named John F. Arming-ton, prior in date to the revival of the above-mentioned judgment against him, the fee in this ground was vested in their mother, Catharine Armington, and no notice having been served .upon, .her in the proceedings to revive the judgment its lien was lost. It was'further contended that at the time of the sale by the sheriff to Wurfflein, John F. Armington was entitled only to an estate for life, as'tenant by the courtesy (he having survived his wife, the said Catharine Armington), that the deed to Wurfflein passed only this estate for life, and that John F. Armington being dead at the time of the institution of the suit iu Court No. 4, they, as heirs of Catharine Arming-ton, became entitled to the property in fee. In the ejectment suit in Court No. 4, the present defendants in error (who were plaintiffs in that suit) successfullj'- established their right to piossession as against the defendant therein, Jacob Knoell.</p> <p>While the ejectment in No. 4 was pending suit was instituted by action of covenant in Court No. 3 to recover the arrears of ground-rent which had accrued since February 5th, 1877, and on Maj1- 17th, 1882, judgment was entered for these arrears. The record shows that the judgment was entered on two returns of Nihil. ■</p> <p>On June 20th, 1882, a venditioni exponas was issued from Court No. 3 on the above-mentioned judgment for arrears of ground-rent. On June 28th, 1882, the following order was made: And now the court on motion and affidavit filed, for the heirs of Catharine Armington, terre tenants grant a rule to show cause why judgment should not be opened, venditioni ex-ponas set aside and the terre tenants admitted to make defence, proceeding to'.stay meanwhile. On July 1st, 1882, the following order was made: Rule continued and sale to proceed subject to the rule.</p> <p>On July 3d, 1882, the plaintiff in error purchased the property at Sheriff’s sale for the sum of $2,050. On July 8th, 1882, the rule to open the judgment and set the venditioni exponas was discharged.</p> <p>On July 15th, 1882, a deed by the sheriff to the plaintiff in error for the land was acknowledged in open court and delivered to him. Subsequently the sheriff paid the purchase money into court and on motion of the present defendants in error, .the same was impounded to await the determination of a bill in equity filed by the present defendants in error in Court No. 3 for the purpose of setting aside the sale by the sheriff to. the plaintiff in error.</p> <p>No notice was given at the sheriff’s sale that there was a rule pending to open the judgment under which the sale took place.</p> <p>After hearing upon bill answer and proofs, the bill in equity above referred to was dismissed. This.action of ejectment was thereupon brought.</p> <p>The court instructed the jury to find a verdict for the plaintiffs. Verdict for the plaintiffs and judgment thereon, whereupon the defendant took this writ assigning for error the charge of the court directing a verdict for the plaintiffs.</p> <p>— A judgment cannot be attacked collaterally: Taylor v. Young, 21 P. F. S., 85; Farrington v. Woodward, 82 Pa. St., 259. If dissatisfied with the action of the court, they might, before the sheriff’s sale, have removed by writ of error the record of Court No. 3, and thus have submitted for revision the action of that court in entering the judgment of May 17th,' 1882, for arrears of ground-rent, as well as the order made on July 1st, 1882, directing the sale to proceed: Fraley v. Steinmetz, 10 Harris, 440. Having failed to do.this the terre tenants (the plaintiffs below) acquiesced in the judgment against them, and cannot now be heard in prejudice of rights derived from such judgment.</p> <p>That the defendants in error should not be now permitted to call in question the title of the plaintiff in error., lies in the fact that the respective rights of the parties were the subject of a bill in equity filed in the interest of the defendants in error against the plaintiff in error. In that equity suit every point now urged in favor of the defendants in error was fully presented.</p> <p>The delivery of the deed by the sheriff after it has been properly acknowledged, the sale confirmed, and the purchase-money paid, vests the title in the purchaser. It is a good title until it is proved that he procured it by fraud upon the defendant in the execution: Evans v. Maury, 2 Amerman, 300.</p> <p>— Wurfflein could not maintain an action for ground-rent as he had no title : McClure v. Gamble, 3 Casey, 288; Pryor v. Wood, 7 Casey 142; Helser v. Pott, 3 Barr, 179; Walbridge v. Pruden, 13 W. N. C.., 529; Heckert v. McKee, 5 Watts, 385; Schollenbeyer v. Felbert, 8 Wr, 404.</p> <p>None of the Armington heirs were present at the sale. Mr. Pile, their counsel, was present, and was entitled to presume that any one who was a possible bidder had knowledge of what the record clearly set out. Mere silence will not estop a party haying title, it will only postpone when silence is a fraud: Robinson v. Justice, 2 P. & W., 19.</p> <p>There can be no fraud in silence where the purchaser or other actor was or ought to have been acquainted with the subject of his action, or, having means of knowledge, neglected it: Commonwealth v. Moltz, 10 Barr, 531; Hepburn v. McDowell, 17 S. &. R. 383. But was not the affidavit and rule of record in the suit before the sale notice to the purchaser of the facts in the affidavit?</p> <p>In Griffith v. Sears, 2 Amerman, 523, it is held that the purchaser of a judgment is bound to take notice of the entry of a rule to open the judgment taken after he had paid a portion of the consideration money though he paid the balance without knowledge of the rule: Beck v. Ulrich, 1 Harris, 636; Juvenal v. Jackson, 2 Harris, 519; Yourt v. Martin, 3 S. & R., 423.</p> <p>In answer to the contention of the plaintiff in error: That a judgment obtained in a court of competent jurisdiction, cannot be attacked collaterally we say, it has never been questioned that the law as thus laid down is the law of Pennsylvania ; but it is subject to the qualification that if there be a valid defence to the action which might have been made by the terre tenant had he been named in the action and served with process, he may afterwards assert that defence against the title of the purchaser at sheriff’s sale : Nace v. Hollenbach, 1 S. & R., 548; Mattier v. Clark, 1 Watts, 491; Cowan v. Geliy, 5 Watts, 535 ; Koons v. Hartman, 7 Watts, 20 ; Meory’s Appeal, 4 Barr, 80; Delaney v. Gault, 6 Casey, 63 ; Bury v. Seiber, 5 Pa. St., 431; Brown v. Day, 28 P. F. S., 129; Montgomery v. Merideth, 5 Harris, 42.</p>

4, of Philadelphia county: Of January Term, 1887, No. 87. Case bjr William M. Maneely, trustee for Mary A. Lamon against the Knights of Birmingham of Pennsylvania. The following facts were agreed upon by the parties and filed in the case, in the nature of a case stated; The defendant is a corporation duly chartered under the Act of Assembly, approved the twenty-ninth day of April, A. D. 1874, and the supplements and amendments thereto.

1, of Philadelphia county: Of January Term, 1887, No. 122. Assumpsit by the Religious Press Association against the Charles McKeone & Son Soap Manufacturing Company. The following instrument in writing and averments in support of the plaintiffs claim were filed. Philadelphia, Sept. 3d, 1885.

2, of Philadelphia county: ' Of January Term, 1887, No. 138. This was an action of assumpsit brought by the Merrick Thread Company against the Philadelphia Shoe Manufacturing Company for goods sold and delivered from November 11th, 1882, to April 3d, 1884, amounting to 1969.09. The defendant pleaded payment and subsequently accord and satisfaction. The following are the facts as they appearaed on the trial of the case: The Merrick Thread Company is a corporation.

431. The following are the facts as they are stated by the auditing judge, Ashman, J.. in his opinion: Stephen Smith died October 9th, 1884, leaving a will dated November 9th, 1878, and a codicil dated May 11th, 1881. He left surviving him a widow, the appellant (by whom he had no children), and six children by a former wife.

<p>Error to the Court of Common Pleas of Fayette county: Of January Term, 1887, No. 123.</p> <p>On May 8th, 1882, Thomas Vance presented his petition to the Court of Common Pleas of Fayette county for the appointment of viewers to assess damages sustained by him by reason of the location and construction of the Pittsburgh, Virginia and Charleston Railway Company over his land. The court thereupon, on the nomination of the parties, appointed viewers under the Act of February 19th, 1849. The railway company took a strip of the land of Thomas Vance, sixty feet wide and twenty-three hundred feet long. This was a part of a tract of .land of ninety acres, used as a farm, and upon which, in addition to the farm buildings, were a grist mill and a saw mill operated by him.</p> <p>The viewers entered upon the dischargeof their duties and, on June 21st, 1882, filed their report, awarding Thomas Vance $1,100 damages. From this he appealed; the issue was made up and tried before a court, Inghram, P. J., and a jury. Verdict for the plaintiff, Thomas Vance, for $4,532.50, and judg- ^ ment thereon. The defendant, The Pittsburgh, Virginia and -Charleston Railway Company, thereupon took this writ and filed inter alia the following assignments of error:</p> <p>1. The court erred in not sustaining the objection of the defendant to the qualification of witness John Brownfield to give an estimate of plaintiff’s damages, the offer and objection and ruling being as follows, viz.:</p> <p>Witness John Brownfield, having testified that he is “ not much acquainted” with plaintiff’s farm, “only the lower part, I was never over it, only on it about the house and railroad and mill,” was asked by plaintiff:</p> <p>Q. Well, sir, state what you consider, if any, the difference in the market value of that tract of land of about eighty-eight acres, as affected by the location and construction of the railroad upon it?</p> <p>The defendant objects that the witness has disclosed facts which show that he is not competent to give an estimate.</p> <p>By the court: He has answered that he was acquainted with the land before and since the construction of the railroad,, and, if the witness is able to answer the question, it is a proper question. Objection overruled, and exception sealed for the defendant.</p> <p>2. The court erred in not sustaining the defendant’s objection to the following question, put by plaintiff to his witness, Samuel Ball, who had just testified that he did “not know the market value of» the property, either before or after the construction of the railroad, only what he would have been willing to give if he had wanted to buy it” — the offer and objection and ruling being as follows, viz.:</p> <p>Q. I will ask you, Mr. Ball, “ if your opinion is based on what you consider its market value before and after?”</p> <p>• Defendant objects that the question is incompetent and leading.</p> <p>The Court : The same question has been raised and passed upon. The objection will be overruled, and an exception sealed for the defendant.</p> <p>A. It is, yes, sir.</p> <p>3. The court erred in overruling defendants’ motion to strike out and withdraw certain testimony from the consideration of the jury, which motion and ruling are as follows, viz.: And now, to wit, February 24th, 1886, the testimony in above stated case being closed, the defendant company, by counsel, moves the court to strike out and withdraw from the consideration .of the jury the estimate made by plaintiffs’ witness, John Brownfield, of the amount of damage plaintiff sustained in his property, as the result of the location and construction of the defendants’ railway over said property, for the reason that said witness testified on cross-examination that he did not know the market value of said property, either before or after the location and construction of said railway thereon, or at the time of said location and construction. .And defendant makes the same motion as to the estimate of said damages made by each of the following other witnesses on part of said plaintiff, viz.: William Feuster, Daniel Swearingen, John Bitner, Samuel Ball, John Dennis, Robert Byers, Andrew Bryson, Enoch David and Joseph Barton, for the same reason as that assigned as above in the case of John Brownfield, and for the additional reason the cases of Andrew Bryson and Enoch David that they also testified on cross-examination that their estimates were based solely on the value of said property for the uses and purposes for which the plaintiff used and held it; and for the additional reason, in the cases of said Hormell, Bitner, Ball, Dennis and David, that they testified on cross-examination that they based their said estimate upon what they would be willing to give for said property ; and for the additional reason, in the case of said Barton, that he testified on cross-examination that he based his estimate upon his .opinion of the present (at the time of trial) value of said property.</p> <p>. And now, February 24bb, 1886, the foregoing motion is overruled, and an exception sealed for the defendant company.</p> <p>4. The court erred in sustaining the objection of plaintiff to the question defendant offered to ask witness, Henry Boyer, on cross-examination, which offer, objection and ruling are as follows, viz.: The defendant offers to ask the witness if, in an advertisement for the sale of this land at public outcry, he wouldn’t consider it an advantage and an attraction to bidders to state that the defendant company had located and constructed and was operating its line of railroad through the farm.</p> <p>Plaintiff objects to the evidence offered as being incompetent and irrelevant.</p> <p>' The Court: The same question was asked before in a different form. The objection is sustained, and an exception sealed for the defendant.</p> <p>5. The court erred in sustaining the objection to the question propounded to witness, Andrew Bryson, on cross-examination ; the witness having already testified that he did not think a railroad of any advantage to a farm through which it ran, unless it had coal under it, which question, objection and ruling are as follows, viz.:</p> <p>Q. Are not farming lands of the same quality worth more in the neighborhood of railroads than away from them ?</p> <p>Plaintiff objects.</p> <p>The Court: I believe the case referred to determines, as it had been determined before, that the advantage must be special and the- disadvantages actual.- The..objection will be sustained, and an exception sealed for the defendant.</p> <p>6. The court erred in overruling defendant’s objection to plaintiff’s offer to prove loss of custom, by witness Jacob Vance, which offer., objection and ruling are as follows, viz.:</p> <p>Plaintiff offers to ask the witness how the trade or custom of the mill was affected by the construction of the railroad.</p> <p>Defendant objects that the evidence offered is incompetent and irrelevant.</p> <p>The Court : In the absence of some authority to the contrary-, we think the testimony is competent. The objection will be overruled, and an exception sealed for the defendant.</p> <p>7. The court erred in overruling defendant’s objection to plaintiff’s further offer of proof by the same witness, which offer (referring to fear of the neighbors to go to mill so close to railroad) and objection and ruling are as follows, viz.:</p> <p>Q. Well, can you state how much of your custom you lost by reason of that?</p> <p>Defendant objects that the evidence offered is incompetent.</p> <p>The Court : If the witness can state, it is competent; it would be a very difficult matter for him to state how much lie had lost by reason of that, I would suppose, but if he can state, it is competent enough, and the objection will be overruled and an exception sealed.</p> <p>Witness: Well, I could not tell just what amount of custom has been drove away by the railroad being so close, but there has been more than half of it, I suppose, anyhow.</p> <p>• 8. The court erred in overruling defendant's objection to the offer of the plaintiff, when witness, Daniel Swearingen, was on the stand, which offer, objection and ruling was as follows, viz.:</p> <p>The plaintiff offers to show by this witness that, at the time he was there, before the railroad was constructed, there was a considerable country custom coming to the mill that has been in part obstructed by reason of the construction of this railroad; that the farmers who used to come, in part have abandoned coming to that mill on account of the danger in crossing the railroad, and to their teams while standing in front of the mill and getting their grist — delivering their grist.</p> <p>Defendant objects that the evidence is incompetent and irrelevant.</p> <p>The Court: Objection overruled, and bill sealed for the defendant.</p> <p>Q. I will ask you what kind of a custom they had at that mill some six or seven years since and before the construction of the railroad there?</p> <p>A. Well, there was pretty good custom I thought; we done a good deal of work.</p> <p>Q. Well, sir, how is it now, since the construction of the road, if you know?</p> <p>A. Well, it is rather limited now at certain times.</p> <p>9. The court erred in the answer to the third point submitted on the part of the plaintiff, which point and answer are as follows, viz.:</p> <p>3. If the jury find from the evidence that the construction of the railroad tended to decrease the business of the flouring mill and the saw mill, or either of them, by making it unsafe to drive horses near them, and dangerous and inconvenient for persons going to and from them, then these would be legitimate items of damage.</p> <p>A. That point is correct and is affirmed, as we have already so instructed you.</p> <p>— A perusal of the testimony of each of the witnesses named in the assignments of error will disclose how completely lacking they are in all essential requirements to give estimates of the damages for the guidance of the jury. Such an estimate is, as Justice Strong said, in Watson v. P. & C. R. R. Co., 1 Wright, 481, “but a mere guess, with no substantial foundation upon which to rest.” It does riot rise to the standard of an opinion, and is as far below the requirement as was the testimony commented upon by Chief Justice Lowrie, in Carr et al. v. The Northern Liberties, 11 Casey, 327.</p> <p>Expert testimony is not required, it is true, but it is necessary that the witness should have sufficient knowledge of the requisite facts upon which to base an opinion, and that lie should make up his opinion on those facts in the manner the law directs, or else his testimony should not be permitted to go before and influence the jury.</p> <p>Except in the case of the witness Brownfield, the fact did not appear, until cross-examination, that the estimates of these witnesses were so founded in ignorance and formed in error, and the only proper course was then pursued by a motion to strike out and withdraw these estimates from the considerar tion of the jury. Any instruction b}r the court in the charge, after comments and. arguments bj- counsel, does not cure the error ;.D. & H. C. Co. v. Barnes et al., 7 Casey, 193; P. R. R. Co. v. Butler, 7 P. F. S., 338; H. & B. R. R. Co. v. Decker, 1 Nor., 124.</p> <p>The party against whom a witness is produced has a right to show everything which may in the slightest degree affect his credit: Cameron v. Montgomery, 13 S. & R., 132; Ott v. Houghton, 6 Casey, 451. Whatever may expose the bias or intelligence of witnesses may be elicited on cross-examination; Yeager v. Weaver, 1 Leg. Gaz., 156.</p> <p>The sixth, seventh, eighth and ninth assignments of error have reference to the claim of the plaintiff for damages for custom lost at his mill, and to the charge of the court relative thereto in reply to the plaintiff’s third point. Since the case of the R. R. Go. v. Hill, 6 P. F. S., 460, it appears to be settled that loss of custom may be proven for the purpose of showing how and to what extent the real estate has been depreciated in market value by the railroad.</p> <p>Loss of custom can no more be allowed as an item of damage than can the cost of fencing. In both cases it is but the consequent depreciation in the value of the realty that can be estimated. Thus, in Montour R. R. Co. v. Scott, 11 W. N. C., 51, this court explicitly says the “ cost of fencing cannot be allowed as a distinct item of damage.” The court below charged in the present case that loss of custom is a “ legitimate item of damage.” The cost of fencing can only be considered as it affects the market value of the land. The jury cannot include in the verdict a fund to cover that cost: R’y. Co. v. McClosky, 16 W. N. C., 561; Setzeer v. R. R. Co., 2 Amerman, 56. The jury can’t take into consideration any supposed loss to plaintiff of profits in his business. This is too speculative, and would lead to most ruinous results: R. R. Co. v. Patterson, 11 Out., 461.</p>

<p>Error to the Court of Common Pleas of Fayette county: Of January Term, 1887, No. 250.</p> <p>Trover by Minerva S. Patterson aud M. M. Patterson, her husband, in right of the wife against Joshua M. Dushane to recover the value of $10,500 of registered 5-20 United States coupon bonds.</p> <p>On the trial before Willsón, P. J., the piaintiff testified that the bonds in question had been given to her by her aunt, now dead, with whom she had lived for more than two years and whom she had nursed and cared for during this time. That she received them from her aunt and had them in her exclusive custody until the defendant persuaded her to give them to him for safe keeping. That after her aunt died she demanded them from him, and that he refused to give them to her. There was evidence corroborative of this which appears in the opinion of the Supreme Court.</p> <p>The defendant was executor of the will of the aunt of the plaintiff. He testified that he had held the bonds appraised as part of the estate of the decedent, had charged himself with the same, and had accounted for and distributed them to the next of kin of the decedent.</p> <p>On motion the court struck out the evidence of both the plaintiff and the defendant as incompetent under the Act of April 15th, 1869, P. L., 50, and then directed the jury to find a verdict for the defendant.</p> <p>Verdict for the defendant and judgment thereon, whereupon the plaintiff took this writ, assigning for error the action of the court as shown above.</p> <p>■ Since the passage of the Act of 1869 all witnesses are prima facie competent so far as interest and policy are in the question; and the court must discountenance all objections on the score of interest and policy unless they be made clearly to appear. McClelland’s Ex’r v. West’s Ex’r, 20 P. F. S., 183. Hence the presumption is that Mrs. Patterson is competent generally. Her incompetency as to matters occurring in the life-time of Mrs. Connell must, therefore, be made clearly to appear, before the court would be warranted in withdrawing her testimony from the jury.</p> <p>It is true that the plaintiff claims by gift from Mrs. Connell in her life-time, and that the defendant grounds his defence upon Mrs. Connell’s title, but it is submitted that these facts do not make Mrs. Connell the assignor of the thing in action within either the letter or spirit of the law. The rights of the decedent must be affected, and the contest must be between parties claiming such rights by devolution on the death of the owner. Cawley, Adm’x v. Wilson, 7 Phila. 676. Dushane does not possess or enjoy the rights of the decedent by devolution, or otherwise. In this respect this case differs materially from the adjudicated cases. In Diehl v. Emig, 15 P. F. S", 320, the point determined was that the vendee of a decedent was incompetent to prove facts occurring in the life-time of the decedent against his devisee. In Earns v. Tanner, 16 P. F. S., 297, the survivor to a controversy was held incompetent as against the owner of the deceased party's title. In Hess v. Gourley, 8 Nor., 195, the devisee of a wife was held incompetent to prove the wife’s title against the heir of the deceased husband. And of like character are the points decided in all the cases which have arisen since the pass-age of the Act of 1869. In every one of them the action was by or against the representative of a decedent or the owner of the decedent's title, neither of which is the case here. '</p> <p>Upon a question of the submission of a case to the jury “ the court must take the testimony as true, with every reasonable inference favorable to him who has the burden of proof:” Blakeslee v. Scott, 37 Leg. Int., 474. Viewed in that light can there be any possible escape from the submission of this case to the jury?</p> <p>“Any evidence which would justify an inference of the disputed fact must go to the jury, no matter how strong or persuasive the countervailing proof: ” Express Co. v. Wile, 14 P. F. S., 201; Bank v. Wirebach’s Ex’r, 10 Out., 37; Norton & Co. v. Breitenbach, 1 Pears., 467. “ In an action at law the testimony of a single witness, offered to establish a controverted point, must be submitted to the jury no matter how flatly contradicted it may be.” Weaver v. Craighead, 8 Out., 288. The question involved in the case is purely one of fact, which it is the duty of the jury alone to determine, and the plaintiff’s proof was positive, direct and ample. The credibility of the witnesses could not be decided by the court, for that is peculiarly the province of the jury. Heister v. Lynch, 1 Yeates, 108 ; Massey v. Buck, 1 Phila., 215 ; Prowattain v. Tindall, 30 P. F. S., 295; Shaffer v. Clark, 9 Nor., 94. And “ contradictory statements go merely to the credibility of a witness, and must be referred to the jury.” Miller v. Stem, 2 Jones, 383.</p>

<p>Error to the Court of Common Pleas of Fayette county: Of January Term, 1887, No. 144.</p> <p>Ejectment by John Manaway against George W. Cover and Louise Cover for 116 acres of land in Henry Clay township, Fayette county. Plea, Not guiltjn</p> <p>The facts of the case as they appeared on the trial before Inghram, P. J., are as follows :</p> <p>Both, parties claimed under Jacob Staup who, up to 1872, was the owner of a tract of land in Henry Clay township, containing 234 acres and 131 perches. On the 12th of August, 1872, a judgment was entered against Jacob Staup in favor of John Collins, for $2,000, which became a lien on this tract of 234 acres and 131 perches. On the trial, title in Jacob Staup in 1872 was admitted, and the plaintiff gave in evidence the above mentioned judgment of John Collins entered to No. 139 September Term 1872, against Jacob Staup, and a writ of scire facias thereon to No. 230 June Term 1876, which was served on Jacob Staup, the defendant in the judgment, and George W. Cover, terre tenant, and judgment of revival was entered against them for $2,629.34. Plaintiff offered the fi. fa. issued on said judgment on the 10th of Feb. 1877, to No. 1Ó9 March Term, 1877. The return to the fi. fa. and subsequent proceedings were not offered in evidence, consequently it does not appear what was done, although in the charge the court assumed that the sheriff, to whom the fi. fa. was directed, had levied on and sold the tract of 234 acres and 131 perches to Collins.</p> <p>On the 17th of January, 1877, before the sheriff’s sale of the land, John Collins and G. W. Cover entered into the following agreement:</p> <p>Agreement made and entered into this 17th day of Jan. 1877 between John Collins of North Union township, Fayette county Pa., of the first part and George W. Cover of Henry Clay township, county and state aforesaid of the seóond part, as follows: that a judgement held by the said John Collins against Jacob Staup be revived on scire facias, and that the land of the said Jacob Staup shall be sold on a writ issuing ■on said judgment, and that the said John Collins will buy in said real estate situated in Henry Clay township aforesaid— provided the same does not sell for more than the judgment, and if said John Collins does so purchase said land he will then make a deed to Louise Cover for a part of said' land, the number of acres to be determined as the amount of 'money found due George W. Cover upon settlement of all claims between Jacob Staup and George W. Cover and paid to Jacob Staup, and for Mm by the said George W. Cover — is to thirty-five hundred dollars so shall the number of acres deeded to the said Louise Cover be to the whole number of acres in the tract of land aforesaid now estimated at two hundred and thirty-four acres, the balance of said tract of land to be conveyed to Jane Staup upon her paying to the said John Collins two hundred and seventy-five dollars, with interest from June 1875 until paid, provided, however, that she pays the same within two years from the date — -if C. Boyle and William Playford are satisfied — but not otherwise. All costs accruing on said judgment and writ of execution and one half of all costs of deeds, survey and settlement, shall be paid by said Jane Staup as they may accrue, and the said George W. Cover hereby agrees to pay the other half of the costs of deeds, surveys and settlement as above mentioned. A full payment by each of the said parties to whom a deed is to be made shall comply strictly with the aforesaid agreement before they can demand or require a deed to be executed to them or either of them, as witness our hands and seals the day and year aforesaid.</p> <p>Attest:</p> <p>J. M. Collins. John Collins, [seal/</p> <p>G. W. Covek, [seal/</p> <p>On the 22d day of October, 1872, Jacob Staup and wife conveyed the whole of said tract of land to George Cover and Samuel B. Staup for $3,500.</p> <p>On the same day George Cover and Samuel B. Staup entered into the following agreement:</p> <p>Article of- agreement, made and concluded this 22d day of Oct., 1872, between Samuel B. Staup etc., of the one part, and George W. Cover etc., of the other. Witnesseth: That* whereas the parties to this agreement having purchased from Jacob Staup and wife, a certain tract of land situate in Henry Clay township, county and state aforesaid, containing 234 acres and 131 perches for the sum of $3,500, which tract of land was duly and carefully conveyed to them .by deed bear-, ing even date herewith, now, then, the parties aforesaid have-agreed to make such payments on, and to have and possess such interest in said tract of land, respectively, as the following terms and article indicate and declare. 1. G. W. Cover aforesaid agrees to make the first payment of $1,500 on the tract of laud aforesaid and also to pay one half of the judgment for $2,000, held by John Collins against said tract of land. 2. Samuel B. Staup aforesaid, agrees to pay the other one half of the judgment aforesaid. 3. The parties aforesaid shall own and have such interest in said tract of land respectively as they shall pay part of the purchase money aforesaid, i. e., the said Geo. W. Cover shall own and have the undivided 5-7 of said tract of land, and said Samuel B. Staup shall-own and have the undivided 2-7 of said land.</p> <p>Witness: G. Crawford, G. W. Cover, [seal.]</p> <p>“ Louise Staup, S. B. Staup. [seal.]</p> <p>On the same clay Jacob Staup and G. W. Cover entered into the following agreement:</p> <p>Article of agreement made and entered into between Jacob Staup of etc., of the first part, and Geo. W. Cover, of etc., of the second part, this 22d day of October, 1872. Conditions are as follows: Jacob Staup agrees to make a deed to G. W. Cover for one half of his farm in Henry Clay township, etc., there being 234 acres in the farm as stated in the deed, and • G. W. Cover agrees to pay three hundred dollars when deed is acknowledged to the said Jacob Staup, and if the said Jacob Staup or Louise Staup pays G. W. Cover three hundred dollars within three months from the date of the deed, G. W. Cover agrees to make a deed to Louise Staup for the one half of the farm deeded to him; and the said Jaeop Staup further agrees to not hold G. W. Cover for the amount stated in the deed, whether it is deeded to Louise Staup or kept by G. W. Cover.</p> <p>Witness our hands and seals.</p> <p>Attested Jacob Staup, [seal.]</p> <p>Susan Louise Staup. G. W. Cover, [seal.]</p> <p>At the time of making the deed and these contracts, Jacob Staup was in jail charged with the murder of Alpheus Glover in the summer o'f 1872. He afterwards escaped and his whereabouts are now unknown.</p> <p>On the 23rd day of June, 1873, Louise Cover claimed the land first under the agreement of Collins to convey to her, and second under a deed dated November 5th, 1872, from George W. Cover to her, then Louise Staup.</p> <p>This deed was received in evidence under objection by the plaintiff; because the deed shows that the word “fifth”in the date of the acknowledgment is written over an erasure; The justice of the peace who took the acknowledgment was thereupon called, who proved the date and explained the erasure.</p> <p>At the time of making this deed, George W. Cover was not indebted to Louise Staup. The plaintiff in rebuttal sought to show that this deed had been dated back by George W. Cover with the knowledge and consent of Louise Staup and that the purpose of the same was to hinder, delay and defraud the creditors of George W. Cover. This evidence sufficiently appears in the opinion of the Supreme Court.</p> <p>The court submitted the question of fraud to the jury. The defendant presented inter alia the following points for charge:</p> <p>4. There having been no narr. filed in the case, the description in the praecipe is insufficient, under the evidence in the case, to properly designate the land in dispute, and iherefore the verdict must be for the defendant.</p> <p>A. Refused.</p> <p>5. The sale by the sheriff on the 3d day of Feb., 1879, to John Manaway of the land in dispute as the property of Geo. W. Cover, conveyed no title to Manaway, even if the deed from John Collins to Mrs. Cover was in fraud of creditors of Geo. W. Cover, for the reason that the judgment of W. H. Playford was entered on the 25th day of June, 1873, and was •revived in 1878, after title was vested in Mrs. Cover, and she was not made a party or terre tenant in the writ.</p> <p>A. Refused.</p> <p>6. Under the pleadings and all the evidence in the case the verdict must be for the defendant.</p> <p>A. Refused.</p> <p>7. There is no proof that Geo. W. Cover, by the conveyance to the defendant, defrauded, hindered, or delayed, or attempted to defraud, hinder or delay any creditors of his, who are in any way connected with this case; and therefore the verdict must be for the defendant.</p> <p>A. Refused.</p> <p>Verdict for the plaintiff for the land described in the writ and thereupon judgment; whereupon the defendants took this writ and assigned for error inter alia the submission of the question of fraud to the jury under all the evidence, and the refusal of the court to affirm their points as shown above.</p>

<p>Error to the Court of Common Pleas of Chester County: Of January Term, 1887, No. 64.</p> <p>This was an action of trespass brought by James E. Neall against Albion W. Hart and Charles M. Griffith, to recover damages for his alleged illegal arrest and false imprisonment by them. Plea not guilt}’.</p> <p>The following are the facts of the case as they appeared on the trial before"Futhey, P. J.</p> <p>In May, 1886, James E. Neall, the plaintiff, the superintendent of the Pennsylvania Granite Co., purchased from Albion W. Hart, one of the defendants, a quantity of curbing stone. Having failed to pay for this curbing. Hart, on May 18, 1886, made complaint before Charles M. Griffith, the other defendant here, a justice of the peace, charging “that James E. Neall, by misrepresentation and trickery, has defrauded him in the sale of curbing stone, and has appropriated the same to his own use.” Upon this complaint the justice issued a warrant for the arrest of Neall. The warrant charged Neall with “ defrauding him (Hart) of moneys due for labor and stone.” On May 19, 1886, Neall was arrested and brought before Griffith, and in default of $400 bail was committed to the jail of Chester county. The constable came to West Chester with Neall and an application was made to the Court and Neall was discharged from custody about 9 o’clock in the evening, on the ground that the complaint and warrant charged no offence known to the criminal law.</p> <p>Nothing further was done by Hart or Griffith in the matter., Neall then brought this action.</p> <p>On the trial the defendants, Charles M. Griffith on the stand, offered to show the statements made by Hart to the witness, upon which he issued the warrant.</p> <p>Objected to, as being irrelevant, the offence charged not being a crime at law, and it being immaterial whether there is probable cause or not, as it would not be justification. Objection overruled. Exception noted for plaintiff.</p> <p>A. Mr. Hart stated to me that he had sold to Mr. Neall, who was the superintendent of the Pennsylvania Granite Company, a certain quantity of stone, which he wa‘s to be paid for; that he had sold this curbing to Mr. Neall, the superintendent, for 55 cents per foot, to be paid for as soon as it was loaded upon the ears at his quariy. I do not remember what number of feet it was, nor anything about it, further than the amount per foot, and that I remember distinctly ; that the curbing had been shipped and had been sold; that the money had been put in Mr. Neall’s pocket, and that he had never received a cent of it, and that there were rumors in the neighborhood that the company was selling or disposing of its property, which would thereby render it impossible for him ever to recover his money. He may have said consideraba more than that, but I do not now particularly remember. (First assignment of error).</p> <p>The defendants also offered to prove the price paid by the Pennsylvania Granite Co., for their property. Objected to, objection overruled, exception noted for plaintiff. (Second and third assignment of error).</p> <p>The plaintiff presented inter alia the following points:</p> <p>1. That the information and complaint which constitute the foundation of the present suit, charged before the justice of the peace against the plaintiff here, nothing but,a simple trespass, in no way amenable to the criminal jurisdiction of the justice, nor cognizable at the Quarter Sessions, and all concerned in his imprisonment by virtue of the proceeding before the justice, were trespassers.</p> <p>A. I instruct you that the papers in the case, viz.: the in-. formation, complaint, warrant and the commitment based upon them, constitute a criminal charge, and not merely a simple trespass. (Fourth assignment of error).</p> <p>3. There is no sufficient evidence in this case to justify the jury in finding that there was probable cause for the arrest of the plaintiff, and the imprisonment complained of by him.</p> <p>A. I instruct you that there is evidence on this point for your consideration, and that evidence I have submitted to' you. (Fifth assignment of error).</p> <p>5. Under all the evidence the verdict must be for the plaintiff, and the only question for the jury to consider is the amount of damages which may be recovered.</p> <p>A. This' point is disaffirmed. It is the duly of the jury to determine how the verdict shall be under the instructions they have received from the court. (Sixth assignment of error).</p> <p>In the general charge the court instructed the jury inter alia as folio ws:</p> <p>The foundation of the present action is that Squire Griffith had no authority to issue a warrant for the arrest of the plaintiff. It is admitted as being the law that, if the justice acted within his jurisdiction, he is not liable, unless malice should appear. There is no evidence in the case that would impute dishonest or wrongful motives on the part of either the justice or the prosecutor. The justice appears to have fairly and deliberately heard the case, and determined it according to the best of his judgment.</p> <p>The question therefore resolves itself into one of jurisdiction. If it is shown that the justice had jurisdiction of the matter the plaintiff cannot recover.</p> <p>Justices of the peace are entrusted with certain duties of a limited character, and, in viewing their proceedings, it is well perhaps not to be too hypercritical. In this case it appears that Albion Hart made certain statements to the justice, constituting what is termed the information that upon this information, the justice issued the warrant of arrest, held the hearing, and, in default of bail, committed the plaintiff to jail.</p> <p>The language of the affirmation made by Hart is that “James E. Neall, by misrepresentation and trickery has defrauded me in the sale of curbing stone and appropriated the same to his own use.”</p> <p>The language of the warrant, based upon this affirmation, is not quite as full as that of the affirmation itself, but the two papers must be taken together in order to clearly understand the nature of the case that was heard by the justice.</p> <p>The commitment of the justice has not been produced, but in its absence, the presumption arises that it substantially followed the language of the statement given to the justice, upon which the information was based, and that the plaintiff was committed for the offence therein charged against him.</p> <p>These papers are not drawn with the skill of a lawyer, or one especially familiar with such matters, but, after a careful examination, I instruct you that they substantially charge an offence against the criminal law; that [a fair reading of these papers does charge a crime against James E. Neall — the offence of obtaining possession of the property of Albion Hart by means of false pretences; that he appropriated the proceeds of the same to his own use, and that a fair reading also charges him with embezzling moneys belonging to Albion Hart, one of the defendants in this action]. (Seventh assignment of error).</p> <p>It does not follow, however, because these papers charge an offence against the criminal law, that the justice had jurisdiction of the offence. It may happen that, while a party is charged before the justice with larceny, yet at the hearing, larceny may not be shown, but that the action ought to be simply one to recover a debt, in which event the charge of larceny would not entitle the justice to assume jurisdiction.</p> <p>It is necessary, therefore, to examine the facts of the case, in order to determine whether the justice had jurisdiction of the offence charged against James E. Neall. The question is not whether he was guilty of the offence charged, but simply whether the statement of Albion Hart was sufficient to warrant the information being made, holding the hearing and the commitment by the justice. ' It is not important to consider whether Neall might have been acquitted if placed on trial for the offence charged, because that possibility would depend not only upon the testimony of the Commonwealth, but upon that of the defendant. There are many instances of acquittals in courts, in which it could not be said that the prosecutor and the justice were liable to an action for false imprisonment.</p> <p>It appears from the evidence that James E. Neall, or the Penna. Granite Company, of which he was superintendent, had entered into contracts for furnishing curbing to parties in Philadelphia; that Albion Hart, having a quantity of material ready for the market, was persuaded by Mr. Morgan to sell it to Neall, and that pending the negotiations, conversations relative to the sale occurred between the three parties; that Mr. Hart being in need of money, finally agreed to accept 55 cents per foot for the curbing, in accordance with Mr. Morgan’s advice, and that payment was to be made when the stone was loaded on the car; that Mr. Hart delivered the stone, in accordance with his contract, and so notified Mr. Neall; that he then demanded payment and was informed by Mr. Neall that he would pay him the next day.</p> <p>The stone was shipped to Philadelphia, and the plaintiff testified that he again demanded payment, and that the reason Mr. Neall assigned for not paying him was that he had not received the money; that payment continued to be deferred upon that ground, and that finally he learned from the Company in Philadelphia, that Mr. Neall had received the money, when he again demanded payment from him, but was ordered off the premises and told to get the money the best way he could do so.</p> <p>It is your duty to consider the circumstances under which this stone was purchased. [Was it a mere debt? If a mere debt was incurred by Mr. Neall, or the company he represented, the justice would have had no authority to institute a criminal proceeding. It becomes important to ascertain whether the stone was taken away before Mr. Neall complied with his part of the contract, in respect to the payment in cash. If it was, then it was removed against' the will of Mr. Hart, and would be a misappropriation of his property;] (eighth assignment of error) but if not, and the agreement was that it should be paid for at some future time, the relation of creditor and debtor was simply established between the parties, and it would not have been a mis-appropriation of Mr. Hart’s property.</p> <p>The stone belonging to Mr. Hart was shipped to Philadelphia, and subsequently sold with other property belonging to the Penna. Granite Company. Mr. Hart testified that he repeatedly asked Mr. Neall for payment, but that the reply always was that he had not received the money.</p> <p>You will determine whether the fact stated by Neall that he had not received the money from the sale of the stone is of any importance, if you believe Hart’s testimony, that the payment was to be cash on the delivery of the stone.</p> <p>If you find that Neall did receive the money from the company, the question arises as to whom it belonged. [Whose money was it? Was it Mr. Hart’s money he received? If it was Hart’s money that Neall received from the company, and refused to pay to Hart, when Hart learned the fact of its receipt and demanded payment, then Neall would be guilty of embezzling money to which Hart was entitled.] (Ninth assignment of error.)</p> <p>You will therefore determine from the evidence in the case whether the relation of creditor and debtor existed between tbe parties, or whether the criminal law was violated. In order to ascertain this fact, you will, ascertain whether Mr. Neall removed Hart’s property contrary to the provision of their agreement, that it was to be paid for in cash on delivery. If so, the stone still remained Hart’s property, and the proceeds of its sale, when received by Neall, should have been paid to Hart; and, under these circumstances failing to make the necessary payment, Neall would render himself liable to a prosecution for embezzlement.</p> <p>[In this view of the case, the next question for you to determine is whether there were such circumstances surrounding the transaction as warranted the prosecutor in making the complaint, and the justice in issuing the warrant of arrest, thus placing the plaintiff in the position of a criminal.] (Tenth assignment of error.)</p> <p>In cases where the facts are not disputed, the court determines whether they are sufficient to constitute probable cause ; but where the facts are in dispute, it is the duty of the jury to ascertain what the facts are, and then the court decides whether or not, under a given state of facts, probable cause is shown to have existed at the time of the arrest.</p> <p>I instruct you, that if you find the stone was sold to the Penna. Granite Company, or Mr. Neall, as its representative, or individually, and the relation of creditor and deotor was created between the parties, the action would have been simply on a debt, and the justice would have had no jurisdiction to entertain criminal proceedings against Mr. Neall; [but if you find that the stone was to be paid for in cash, and that it was removed without payment being made, the stone, or its proceeds, still remained the property of Mr. Hart, and if the money was received by Neall and not paid to Mr. Hart, then the prosecutor was warranted in making the complaint, and the justice authorized to issue the process and hold Neall for trial in default of bail.] (Eleventh assignment of error.)</p> <p>The question as to whether Neall could have been convicted on the charge in court is not material; because juries decide the guilt of a defendant from all the evidence in the case, and a defendant may be acquitted, although there may be ample evidence to justify a prosecution.</p> <p>The jurisdiction of -the justice is the only question involved in the case. If it was simply a debt between the parties, the justice would have had no jurisdiction to institute a criminal proceeding. If he did so, under such circumstances, he would be a trespasser in law, and those who made the complaint would be placed in the same position. If, however, it was a case where the criminal law had been violated, so far as it could be made prima facie to appear, neither the prosecutor nor justice could be held liable to damages in an action for false imprisonment, and there would be nothing in the case to warrant the conclusion that they had acted in a wanton or wrongful manner.</p> <p>This is the case jrou have been called to try. It is simply a question of jurisdiction. If the justice had no jurisdiction, under the principles of law, as I have explained them, the plaintiff is entitled to recover. [If you find the facts to be as I have stated the defendants contend, I instruct you that there was 'probable cause'for the prosecution, and the plaintiff cannot recover.] (Twelfth assignment of error.)</p> <p>In cases of this kind, the damages are compensatory, or such as will compensate the plaintiff for any loss he may have sustained; nominal damages, for some trifling sum, and exemplary damages, which are usually given for the purpose of setting an example to others. [If you render a verdict in favor of the plaintiff, there is no evidence to warrant your giving him exemplary damages.] (Thirteenth assignment of error.) The circumstances, as developed by the evidence, would warrant simply either nominal or compensatory damages, but ordinarily compensatory damages are allowed in such cases.</p> <p>(1.) Trespass is the proper remedy where an arrest has been made on a warrant which charges no crime: Maher v. Ash-mead, 6 Casey, 344; Baird v. Plouseholder, 8 Id., 168; Kramer v. Lott, 14 Wright, 495.</p> <p>“ The principle of the rule is that the warrant is void, no crime existing to give it legality, and that an arrest under it is no more to be justified than any other iliegal arrest and.detention without a warrant. Trespass in such a case is undoubtedly the remedy:” Kramer v. Lott, 14 Wright, 496.</p> <p>(2.) The distinction is between irregular process, or that which is absolutely void, and process erroneously issued, but not void: 1 Waterman on Trespass, § 307.</p> <p>(3.) A justice of the peace and his jurisdiction are creatures of statute. A justice’s court is not one of general, but of special and limited jurisdiction.</p> <p>In such case there are no presumptions in favor of jurisdiction, but such jurisdiction must appear on the record': 1 Waterman on Trespass, §§ 54, 56, 359.</p> <p>(4.) Every person who interferes with the liberty or prop; erty of another is prima facie a trespasser, and is liable to an action unless he can show legal justification for his act: Dicey on Parties, 450; Baird v. Householder, 8 Casev, 169 ; 1 Waterman on Trespass, §§ 57, 362, 364; 3 Wait’s Act. & Def., 316; Hill v. Bateman, 1 Strange, 711.</p> <p>(6.) The defendant, Hart, is clearly liable as well as the justice: Parsons v. Lloyd, 2 Wm. BÍ., 845; 1 Waterman on Trespass, § 302; Bigelow’s L. Cases on Torts, 279 ; 1 Smith’s L. Cases, 557.</p> <p>(7.) Neither the information, warrant nor evidence disclose a case amenable to the criminal law pending before the justice when the arrest and imprisonment occurred.'</p> <p>The whole proceeding was therefore absolutely illegal and. void and amounted to a trespass as pure and simple as- if the so-called warrant had been signed by one of the counsel arguing this ease instead of Justice Griffith.</p> <p>— The question as to what occurred at the office of the justice was an important one. The statements of the parties were essential to an understanding of the case. Their intent iind meaning may not be clearly expressed in the papers, but, taken with them, they import an offence against the criminal law, of which the justice had jurisdiction. An offence was substantially charged upon the face of the papers. A failure «to sustain the charge upon a hearing had does not render the defendants liable, as Justice Gordon well sa.ys, in Gilliford v. Wiudel, 12 Outerbridge, page 145: As it is the duty of every citiz'en to aid in enforcing the criminal laws of the state against those by whom they are willfully disobeyed,- so it is tbp business of our courts of justice to see that the person thus undertaking to vindicate the law shall not suffer in consequence of' such an attempt, even though it maj'- have proved abortive. So where it appears that the defendant acted merely through mistake, or where the prosecution resulted from the mistake of the justice of the peace before whom the information was made, the action cannot be maintained.</p> <p>In McCarthy v. DeArmit, 3d Outerbridge, page 70, Justice Trüííkey clearly says: The law favors honest efforts to bring the guilty to justice, and where a citizen proceeds by complaint before a magistrate, though the prosecution be unwarranted in fact, if his motives were pure he will be protected.</p>

63. Appeal of Jonathan H. Kulp and Eber C. Amolé, administrators of the estate of Jonas Amolé, deceased, from the decree of said court confirming the report of the Auditor, H. T. Fair-lamb, Esq., distributing the fund in the hands of the administrators, 'inter alia, to the administrator of Sarah A. Amolé, deceased, the amount of a certain promissory note dated 24th January, 1874, made by Thomas Beekley, principal, and Jonas Amolé as surety for $100, and payable to the order…

<p>Error to the Court of Common Pleas, of Elk county: Of January Term 1886, No. 319.</p> <p>Partition for certain lands in Elk county, wherein C. R. Earley was plaintiff and W. B. Brickell and P. Y. Hite were defendants. The Central Bank of Pittsburgh on its petition was admitted as defendant upon the record. The plaintiff filed an answer to this petition, admitting the right of the Central Bank of Pittsburgh to be admitted as defendant as to two thirds of the land described. The bank pleaded, non tenent insimul.</p> <p>Upon the trial before Mayer, P. J., the jury was instructed to find for the plaintiff, subject to the opinion of the court on the question of law reserved : Whether the plaintiff is entitled to have the undivided one ninth part or the undivided one third part of the lands, for which the action of partition was brought, set apart to him in severalty.</p> <p>The jury found as directed. The court entered judgment in favor of the plaintiff on the reserved question for the undivided one third part of the lands described in the writ, and directed that the same be set apart to him in severalty. The defendant thereupon took a writ of error assigning for error inter alia the judgment thus directed to be entered. The Supreme Court affirmed the judgment of the court below. 'The case is fully reported in 3 Amerman, 477. The plaintiff in error subsequently moved the.court to grant a re-argument and assigned, as reasons therefor, that the point upon which the case was-affirmed had not been raised and argued by counsel in the Supreme Court, and that the ends of justice required that another trial should be had, and a venire facias de novo should have been awarded. A re-argument was granted.</p>

219. Assumpsit by Robert Freed against John Richey to recover the purchase money, $1,100, of a house and lot, which the defendant verbally promised to pay the plaintiff. On the trial before Inghram, P. J., the following facts appeared: About the year 1877, Robert Freed agreed to sell about twenty acres of land to Joseph Richey for the sum of $3,500. Joseph Richey went into possession, but subsequently surrendered it, being unable to pay for the same.

<p>Error to the Court of Common Pleas of Fayette county: Of January Term, 1887, No. 223.</p> <p>Case by Isaac G. Roby against the Redstone Coke Co., Limited, to recover damages for injuries sustained through the alleged negligence of the defendants in not properly ventilating their coal mine in which the plaintiff was employed as a miner. Plea, not guilty.</p> <p>The following facts appeared on the trial of the case before Ingraham, P. J.</p> <p>The Redstone Coke Company, Limited; the plaintiff in error, and defendant below, was organized under the Act of 2d June, 1874, and its supplements. The character of its business was the mining of coal and manufacturing of coke. The company leased certain coal lands on the Southwest Pennsylvania Railway, about three miles southeast of Unioutown, and in the summer of 1881, soon after its organization, began the business for which the company was organized. The mine was worked through two slopes, called upper and lower — about fourteen hundred feet apart. In addition to these, there were two other openings, one near each slope, called a man-way or air course. These mines were originally opened late in the fall of 1880, and but little mining had been done prior to the time plaintiff in error leased them. They were ventilated, as others in the coke region were at that time, by a steam pipe, which extended from the mouth of the lower pit to its bottom. The air in this slope was by this means heated, and, being rarified, passed out, while the air coming in through the upper openings passed into the lower slope, thus producing a current of air through the mine. The air was driven into the headings, or rooms, by a brattice, or door. This was the approved mode of ventilation in that mining region at the time, and is still used there in many places. The uncontradicted testimony-showed that the pipe used in this mine was sufficient to ventilate a “ mine as extensive again.”</p> <p>In May, 1883, and for two years prior, Isaac G. Roby, the defendant in error, had been working as a coal miner in this mine for the plaintiff in error. About five and one half o’clock on the morning of May 28th, 1883, Mr. Roby went to his work as usual in that part of the mine known as Flat Heading, No. 4, which was about seven hundred and sixty feet from the mouth of the upper slope. He testified that when within forty feet of the face of the heading an explosion occurred and he was burned. At that time there were three flat-headings connecting the two slopes. The company employed from seventy to one hundred men.</p> <p>At the time of the explosion W. T. Dom was the superintendent, Adolph Whyel was the mining boss, and Jacob Pfeffer was the assistant mining boss at this mine. No question as to the competency'of these employees for their respective positions was alleged in the plaintiff’s narr. or was raised on the trial in the court below.</p> <p>For the injuries sustained by Roby he brought this suit, alleging that the plaintiff in error allowed its mines to become filled with evplosive gases, by which he was burned, and did not provide ample means of ventilation, nor have its mines carefully examined every morning before the workmen were allowed to enter.</p> <p>Verdict for the plaintiff in the sum of 11,500 and judgment thereon, whereupon the defendant took this writ and filed the following assignments of error :</p> <p>1. The court erred in refusing defendant’s first point, which point is as follows: That under all the evidence in this case, the plaintiff is not entitled to recover, and their verdict must ■be for the defendant.</p> <p>2. The court erred in refusing defendant’s eighth point, which point-is as follows.: That if the jury believe from the testimony that there was no explosive gases or fire damp known in défendant’s mines prior to the day of the explosion which caused plaintiff’s injuries, the defendant was not compelled to have every working place in said mine carefully examined every morning with a safety lamp by a competent person, before any workmen were allowed to enter.</p> <p>3. The court erred in not charging the jury fully on the law applicable to the facts of the case.</p> <p>4. The court erred in not directing a verdict for the defendant after affirming defendant’s fourth point, which point is as follows-: That notice to the mining boss of gas in the mine was no notice to the company, and that if the jury believe that the explosion occurred and the plaintiff was injured by the negligence of said mining boss, the defendant company would not be responsible and the plaintiff cannot recover; and defendant’s seventh point, which point is as follows: That under the Act of Assembly, it was the duty of the mining boss-to keep a careful watch over the ventilating apparatus, and to see that the mine was properly ventilated, and his neglect or failure to do so would not render the defendant company liable.</p> <p>— There was no testimony to establish negligence on part of the defendant. It is error to submit to a jury a question of fact of which there is not sufficient evidence to support a verdict: Raby v. Cell, 4 Nor., 82; Egbert v, Payne, 3 Out 244; Stouffer v. Latshaw, 2 Watts, 165.</p> <p>The mine owners or operators are not presumed to have sufficient practical knowledge to manage the inside workings, and hence the law requires them to employ a competent person for that purpose. If the person thus employed is not competent it is the duty of the miner to so notify the superintendent or mine owner. If, however, due care is used in his selection— and that is presumed till the contrary is shown, Mansfield Coal Co. v. MeEuery, 10 Nor., 191 — the mine owner is not responsible for his mistakes or negligence.</p> <p>It is well settled in this state, that a mining boss under the Act of 1877 is a fellow-servant with the miners and laborers, and that for his negligence the employer is not responsible: Reese eí al. v. Biddle, 2 Amerman, 72; Waddell & Walter v. Simoson and wife, Id., 567.</p> <p>— The contention in this ease is: Whether or not the plaintiff in error provided for its mines “ample means of ventilation;” and whether or not it was required to have in its employ a fire boss under the Act of April 18th, 1877, P. L., p. 58.</p> <p>This court cannot afford to declare that the law requires the test of an actual explosion before the owners of mines are required to go to the paltry expense of employing a fire boss, for one human life is worth more than all the expense of all the fire bosses of all the mines.</p> <p>The case was properly submitted to the jury, who from all the evidence found as a matter of fact that the' defendant was negligent in not providing ampler means for ventilation as required by law.</p>

<p>Error to the Court of Oyer and Terminer of Belaivare County': Of January Term 1887, No. 165.</p> <p>On March 2d, 1886, Samuel Johnson was indicted for the murder of John Sharpless; on the same day on being arraigned he pleaded not guilty.</p> <p>The following are the facts of the case as they appeared on the trial before Clayton, P. J.</p> <p>John Sharpless, a farmer, resided in the township of Lower Providence, in the county of Delaware. On the night of Sunday, November 22d, 1885, about half-past eight o’clock, a rap was beard at the door, which was immediately answered by him. He inquired of the person what was wanted. After some little conversation had passed between them, Jane Pratt, his sister-in-law, went to see what was the mattér. She asked John Sharpless what he was going to do, and he told her that the person who had knocked at the door .said there was a carriage broken down and he wanted assistance. She asked him if he knew the man. He said he did not. She then asked him if he was a colored man, and he said, “No, he is a white man.” She then went out to the door-way whilst Mr. Sharp-less was in the house getting ready to go out, and asked the unknown man if any one was hurt, and he said no. He also said that he was not with them on the road, but had come up and got assistance for them. Her impression was that he was a colored man, although her conversation with the stranger was from the door-way whilst he stood out some little distance, apparently avoiding a close meeting. Jane Pratt’s eyesight is not good. John Sharpless having got his umbrella and lantern, then went out toward the barn, being heard to say, “ I will go to the barn and get some.” Jane Pratt did not want him to go, and said that she had some twine and would give it to him. He replied, “ Oh, no, I will go.” She says after this she saw the figure of a man following him towards the barn,-then she went into the sitting-room and sat down to writing, at which she had been when the rap came to the door. After John Sharpless had been gone some time, and no light had been seen to pass the window towards the road, his wife, Susan Sharpless, who with Jane Pratt and Lydia Reynolds, a cousin, were in the sitting-room, became alarmed, and Jane Pratt said she would go out to the road to see what was the matter. After putting on her rubbers and coat, she did this. When she got there, not seeing any light or vehicle, she returned back and went to the barn, and just- in front of the stable door she found an umbrella lying on the ground. She called John Sharpless three times, and not getting any reply she picked up the umbrella and started to Joseph Mickle’s, a neighbor. She found Mr. Mickle and his brother at their barn with carriage hitched, the latter being about to go away. They drove .over rapidly, at her request, to the Sharpless barn. All went into the stable and John Sharpless was there found lying dead, with his head opposite the entrance to the fifth stall and within a few inches from the heels of a horse in the next stall. He was lying straight out, his hands at rest across his body, and one leg drawn up. On his head were two wounds, sufficient, the doctors said, to produce death.</p> <p>Whilst Jane Pratt was absent, and Susan Sharpless and Lydia Reynolds were alone in the sitting-room, a noise was heard at the latch of the vestibule door and a strange, tall man entered the room quickly, closing the door behind him. Approaching Susan Sharpless, he greeted her with a half-grunt which she took to be a salutation. She said: “ What does thee want?” He replied: “I want a little money.” She replied: “We are not in the habit of keeping money in the house.” He then said: “But I want some.” To this she gave no definite answer for a few seconds. He then asked her if they had a young girl living with them. Mrs. Sharpless asked: “A colored girl?” He said, “No, a white girl,” and asked to see her. Mrs. Sharpless said: “But thee cannot see her; she is not our girl,” she having reference to a young girl in their employ, but who had gone to bed. Lydia Reynolds then said: “ We have a colored man and his wife living here,” and suggested she would call them. The man replied he did not want to see them, and then, after a few seconds, turned and went out at the door he entered at and closed it after him. Mrs. Sharpless immediately bolted it after him. Mrs. Sharp-less described the stranger as a tall man, with long arms, which he held by his side during the whole time, [clothing dark, a frock coat, and dark felt hat; a white handkerchief around his neck, not silk; the frock coat of good length and rather neat appearance. She said he had a large nose, “not African; ” lips seemed to stand out, as though something was in his mouth, and he talked in that manner and indistinctly. His front teeth were prominent, and to her recollection appeared to be the most distinguishing mark about him, the stranger showing them during the talk with her. In color he was not right black, but not a mulatto, considerably darker.</p> <p>The night of the 22d of November, 1885, at the time of the crime, was cloudy and drizzly, and the roads muddy. It was not dark, as the moon was almost at the full. The same night, about 10.45, the Lindsays, neighbors of Sharpless, living about a quarter of a mile further west, discovered their barn on fire. It was burned up, with the stock.</p> <p>Information of the murder was not generally known in the county until the morning of November 23d, and not in Chester City, two and a half miles distant, till near midnight.</p> <p>A number of persons, white and black, were arrested in the week or two succeeding the crime, nearly all of them on account of some resemblance in their teeth to the unknown man described by Mrs. Sharpless.</p> <p>On December 12th, 1885, Samuel Johnson, the defendant, was arrested in Philadelphia on information given to the police by a colored man, Pritchett, who had been a fellow-prisoner with him in Moyamensing, who stated Johnson had told him in conversation in a saloon, on Thanksgiving Day (November 26th), that he had knocked an old fellow on the head near Chester, and after wards-that the man’s name was Sharpless.</p> <p>During the trial the Commonwealth, Lewis Morris Lewis on the stand, asked:</p> <p>Q. Where do you live ? A. Upper Darby. Q. State whethej or not your house was entered in November last?</p> <p>(Question objected to by counsel for defendant.)</p> <p>Proposed to prove by this witness that one of the coats found in the possession of this defendant was the coat of Lewis M. Lewis, and that the other coat that was worn there was left there at the place.</p> <p>Mr. Cummins: What night?</p> <p>Mr. Baker: The same week of the murder. Evidence admitted, exception noted and bill sealed for the defendant. (First assignment of error.)</p> <p>Susan Sharpless callédfor, the Commonwealth being on the stand, the District Attorney called upon the defendant Johnson as follows:</p> <p>“ Johnson, stand up.” The prisoner is asked to open his mouth. Mr. Baker to the prisoner: “ Johnson, will you repeat the following sentence: I want a little money. But I want some. Have you a little girl about the house? But I don’t want to see them.” Johnson is asked to stand up by the District Attorney and put on a slouch hat. This is objected to by the counsel for the defendant. The offer is not pressed by the district attorney. (Second assignment of error.)</p> <p>The following was the third assignment of error founded on the above.</p> <p>The court in permitting the District Attorney to place the defendant in the position of compelling him to give evidence against himself, or by objecting to put himself in a more dangerous position before the jury.</p> <p>Lewis Morris Lewis being recalled, the Commonwealth proposed to ask the witness if he ever saw that spirit level before. Objected to by Mr. Robinson. Proposed to prove that this spirit level, the property of the witness, was taken from his house, and the coat was taken and this coat was left in his place in place of the coat taken from him; and this spirit level was found at a certain place, the same place which was the former lodging of the prisoner. Objected to by Mr. Robinson. The question is admitted. Exception taken by Mr. Robinson, and bill sealed.</p> <p>A. Yes, sir; that is mine. The court: Q. When did you miss it? A. The Sunday following. I don’t know at what time; in the afternoon, I think. It was taken the same time the other things were taken. The court: Q. Where did you see it again? A. At the Third District Station House. Q. Did you then identify these things ? A. At the station house? Q. Yes, sir. A. Yes, sir. Q. This razor? A. Yes, sir. (Razor-strop shown witness.) (Objection by Mr. Robinson.) Q. Will you look at this? (Mr. Baker calls the attention of the witness to the fact that the handle of the razor is broken.) Q. After looking at .that razor do you identify it? A. Yes, sir; that is mine; that is my razor Q. When was it missing? A. It was taken away upon the same day the other things were taken. Q. Where did you find it? A. I didn’t see it until last Monday evening. Q. Did you give any information to the officer when you got the level about the razor-strop? A. I told him the razor-strop, and a pair of boots, and some other things had been taken. (A bag shown to the witness.) (Objection by Mr. Robinson.) A. That is mine also. Yes, that is mine. Q. When did you miss it? A. I didn’t miss it at the time; it was in my coat I was using in market, but I didn’t miss it until at this office. Q. Were those your shoes? A. Yes, sir. Q. Did you identify the bag? A. Yes, sir. Q. Was there any peculiarity about the coat that was taken? A. Yes, sir. (A couple of razors shown to the witness.) A. I could not swear about them, they were among the number. The brush lean remember particularly well; it was presented to me twenty years ago, and I kept it. By Mr. George Quinby: Q. Where did you next see this ? A. Not until Sunday night. Q. Did you identify it then as yours? A. Yes, sir. Q. You have a-pair of boots on there? A. Yes, sir. (Objection by Mr. Robinson.) (Fourth assignment of error.)</p> <p>The court instructed the jury inter alia as follows:</p> <p>It is your duty to arrive at a just conclusion with reasonable certainty from all the evidence. The jury, therefore, should take up the testimony and consider it in an orderly, calm, systematic manner. A little system is necessary in all cases where an important matter is to be performed. You should, therefore, first direct your attention to. the primary question in the case, Was John Sharpless murdered? or-was his death the result of accident? That is the first question. I will advise yoh when you go out to take up that question first. It seems to me that you may find, without doing violence to your conscience, that John Sharpless was murdered. Now, while speaking upon the subject of doubts, there is a possibility, that he was not murdered. There is a possibility perhaps, that he may have fallen in a fit, that he may have struck his head, and that the horse may have trod upon him, or kicked him, while down ; but you see it will not do for the jury to indulge in these speculative doubts; the law does not recognize' them; you are to*decide according to the weight of the evidence. It seems to me, therefore, that you may find that John Sharpless was murdered. You will remember, while considering this question, that he was inveigled from his house; that he was taken from his fireside at night for some purpose, and that he was never seen alive afterwards by any of the members of his family; that he was, when last seen, in. the company of a person, the one who induced him to leave his house, and that he was found in his stable, where he started to go to get a rope, dead, with two wounds on his head, one of which had fractured the skull; that he was found lying upon his back, not with his head from the horses, where it would probably have been if he had been kicked, but with his head toward the horses, his feet the other way and his hands lying at rest upon his bodjr, with one leg a little raised. The evidence, therefore, it seems to me — but the evidence is for you— is sufficient for you to settle the first question, that John Sharpless was murdered. Then comes the second question, By whom was he murdered? Here is where, perhaps, you will have jmur greatest difficulty. The Commonwealth says, “ By the prisoner.” The defendant denies it. That is the great issue for the jury. If you find on the first question that he was murdered, you have got over one difficulty; but the great one will be, By whom was the deed committed? [You have heard the evidence of the Commonwealth, and it seems to point to this defendant as the man who committed the crime; but it will be for you to say whether the index is sufficiently certain to warrant you in a conviction. I say, the evidence seems to point to this defendant as the murderer; it undoubtedly does.] (B'ifth assignment of error.) Whether the evidence is sufficient to satisfy 3-011 beyond a reasonable doubt that he is the guilty man, is a question entirely for the jury. I do not intend, if I can avoid it, to give you the slightest intimation of my own judgment, after hearing the testimony, as to what your verdict should be ; and if I did you would not be bound by it. If I were to tell you that I believed the man innocent, you would have no right to take that as having any weight upon you whatever; and if I were to say to you that he was guilty, it ought not to have any effect upon your minds. You are the ones to take the responsibility of settling that question. I have not been sworn to decide that; you have. In considering, therefore, the evidence adduced by the Commonwealth and the answering of that evidence by the defendant, if you shall come to the conclusion that this man is the murderer, then your next great question will be, What is the degree? Is the man guilty of murder in the first or in the second degree? And as I said to you a moment ago, if you find the killing was committed not in an attempt to perpetrate a robbery, and that when the blow was struck only great bodily harm or some other ulterior object was in view, then it is murder in the second degree; but if the blow was struck in an attempt to rob, then, whether the intention was to absolutely kill the man or only to do him great bodily harm; the offence is murder in the first degree.</p> <p>Now, was the man killed in an attempt to rob ? Here is one of the weak points in the Commonwealth’s case; there is no evidence of any robbery ; there is no evidence that the dead man’s clothing was interfered with; there is no evidence that any money was in his pockets or that any money was taken from him. I confess I was somewhat surprised at this lack of testimony. No one has been called to state whether John Sharpless had any money with him when he left the house or that any money was found upon his person after he was murdered. This fact will have an important bearing upon the question of the degree of the murder, and it is proper you should, understand it; for I say to you, you have the power either to find this man guilty of murder in the first or in the second degree; but of course you ought not to exercise this power of finding him guilty in the second degree unless his offence does not rise higher than murder in the second degree. If you find that when that blow was struck he was making an attempt to rob, it does not matter what his intentions were when he went there. He may have intended to rob; but at the time that the blow was struck, was it struck for the purpose of robbing the man ? Robbery in law is a personal attack upon a man to deprive him of property then upon his person, by actual violence or putting him in fear. That is robbery in law. I think I have said enough upon this subject for the jury to understand it, therefore we will go on to the next question. If you find, as I stated before, that the man was killed, and that the defendant killed him, and that he killed him while attempting to rob him, then he is guilt}' of murder in the first degree. If you find that the man was killed, and that the defendant killed him for any other purpose than that of robbing him, and that at the time the blow was struck it was struck without any intention to kill, but only to do him great personal harm, then the offence would be murder in the second degree, and, as I before stated, the question of degree is for the jury. Therefore, I say to you, that under all the evidence, you may either convict this man of murder in the first degree or in the second degree, or you may find him not guilty. Now, to assist you in grappling with the important facts in this case, but without making a close analysis of the testimony, I will call your attention briefly to the testimony of the several witnesses who have been called and examined before you. I will give you a mere synopsis of their testimony. I do this more for the purpose of assisting your memories than for any other object. You are required by law to find the facts from the testimony, and you are not permitted to have the notes of the court or of the phonographer befo”e you, and it is therefore proper that your memories should be assisted as far as possible by the court, as to what the witness said when examined. Courts are in the habit of grappling with difficulties, and we get into a natural habit of associating ideas to assist memory ; not from any innate power, but from the habit of constantly dealing with these questions, we can remember important points better than jurors, and to a certain extent this is the result as before mentioned of an association of ideas. If you see the man before and after .he has testified, you naturally remember what was said; but if you can’t remember the witness’ name or appearance, you will probably not remember anything the witness has said. Therefore I shall merely give you a list of the witnesses and a brief review of what they said.</p> <p>No doubt you remember the first witness who was called, Mr. Hall; now merely naming the witness will probably be enough to recall to you what he testified to. He was called simply to prove the map and the plan. That plan you may take out. The next witness called was the warden or keeper of the jail, Mr. Baker. He testified that the defendant’s personal appearance now is not what it was when he first came to jail. He says that his beard was more stubby. He also testified that prisoners have the opportunity once a week to shave. At a subsequent stage of the proceedings he was called again, and testified as to the mumbling manner in which the defendant spoke, and said it was no uncommon thing for the defendant to show his teeth while speaking, and that they had the appearance of being somewhat prominent. That is the substance of Mr. Baker’s testimony. The next witness called 'was Joseph E. Mickle. No doubt you remember him. He was the neighbor who was sent for by Jane Pratt. He tells you what took place when he arrived and what he found. He is corroborated by the fourth witness, his brother, William Mickle.</p> <p>The principal witness in the case, and one perhaps without whose testimony this defendant could not be convicted, was Alexander Pritchard, and to his testimony your closest attention ought to be directed. You should examine it well, because, if you believe Alexander Pritchard, then the defendant may be found guilty of the crime of murder; it would not be a conviction upon circumstantial evidence at all; it would be positive, upon the confession of the defendant. You will remember what the testimony of this man Pritchard was. He says he was a fellow-prisoner in Moyamensing with the defendant ; that he was at that time in jail for assault and battery ; that he was constantly in contact during the day with the prisoner: that they were both runners; that they became rather familiar and- talked about what they intended to do when they got out. That the prisoner said he wanted to have a good time after he got .out of jail, and Pritchard says he told him that New York was the place to have a good time, but that it cost a good deal of money to have it there. He says the defendant told him he knew where he could get a stake of $200 or $300, and said that as soon as he got out he was going to get it and that they would go to New York and have a good time together. Pritchard tells you he was discharged on the 22d of October, and that the prisoner at the bar was not discharged until the 20th of the following November. He tells you that shortly after his discharge — I think it was on the same day, that will be for you — he met him upon Lombard street. He tells you how he was dressed, and that he then told him he could get that stake down near Chester and that he was going after it. He says he saw him the next day, Saturday, which would be the 21st of November, in' the evening about 0 o’clock, at Seventh and Lombard, and that the next Thursday he saw him again. Upon the next Thursday he says the defendant told him that he did not succeed in getting the stake, and he told him that be had to knock an old fellow in the head about two miles from Chester. Pritchard says he said to him, “ Did you ? ” He says he answered, “ Yes ” but that he only got six dollars. Pritchard then said, “Are you the man that went to ask for the rope?” And he said, “Yes.” “You were the man with the white handkerchief around your neck?” And he said, “Yes. Did you read that in the papers? ” And he said he did. Afterwards, when asked about it, he said he heard it from those that had read it. Pritchard then-said, “ Do you know you killed that man ? ”' and the prisoner replied, “Yes, but don’t say anything.about it.” He said, “ Then don’t say anything more to me about it.” Pritchard said the prisoner told him he only got six dollars, and then had two dollars in his pocket. The third Saturday after this he says he met him again and asked the name of the man that he knocked in the head, and he told him it was Sharpless. ' That on the 28th of November, Pritchard says he informed the police.</p> <p>Now that is the substance of Pritchard’s testimony. Of course I have not given all the details, but that is the substance of it. Now, you saw the witness, you heard the cross-examination, and you have heard the other corroborating testimony, and it will be for you to say whether you believe him. If it is true, then the evidence is sufficient to convict this man; but if you do not believe it, you may acquit him. No witness has been called who has said upon his oath that Pritchard is a man unworthy of belief. In law every man who testifies under the sanction of an oath, is prima facie entitled to credence. There are several ways, permitted by the law, to discredit a witness. The most familiar way is to call those acquainted with him, and let them say whether they know the man, and whether they know others who know him, and what his reputation is for truth and veracity. The mere fact that he has been convicted of assault and batter}»-, is not sufficient to throw discredit upon him as a witness. If a witness is convicted of a felony, it sometimes is sufficient, but the mere fact that he is now under arrest for robbery, is not in itself sufficient to discredit him, for the law presumes him to be innocent until he is proven guilty. You may, however, consider all the facts — the fact that he was in jail, the fact that he is now under arrest — as that may influence you with the other testimony in the case in rejecting his story. So you may believe or disbelieve him ; but as a rule a witness is entitled to belief unless some good reason be given for discrediting him. Now, of course, you will give the defendant credit for his inability to procure witnesses; you will remember that he has been in jail, and that he is poor and friendless to a certain extent, and that while no witnéss has been called to discredit the credibility of Pritchard, it may be that if the prisoner had the means, he could, perhaps, have procured some witnesses upon that subject. I only call your attention to the fact that it has not been done, and at the same time that the defendant was in actual custody, and, of course, could not procure witnesses with the same ease that the Commonwealth could. If you believe the testimony of Pritchard, it would seem that the defendant is guilty of the murder of John Sharpless. If you do not believe the testimony of Pritchard, then there is sufficient, it seems to me, to warrant you in saying he is not. And you will, of course, endeavor to ascertain whether Pritchard has been corroborated, whether he- has been contradicted in any material misstatement, whether he has prevaricated. You will call to your mind his manner of testifying, and upon this most vital testimony you ought to carefully deliberate. He certainly has been corroborated as to all that he has testified to as having taken place while they were both in Moyamensing, except as to the conversations. He was what he testified to, a runner, and the defendant was a runner ; they were frequently together; they occupied the same cell during their leisure hours; that has been proved by Mr.— (Mr. Baker: “Mr. Livingstone,”) Mr. Livingstone. To a certain extent he is corroborated as to what took place after he got out of prison also. He tells you where he went and where the defendant went, that they visited the girls and went to different places together, and this does not seem to be contradicted by the defendant’s witnesses, and is to a certain extent corroborated.</p> <p>The next witness called was George Yorke. He tells you that the defendant came to his place on Friday evening at seven o’clock, and he describes his dress, and that the defendant told him he was going into the country to hunt work, and that he slept upon his floor that night and left next morning at eight o’clock; that was Saturday morning. He says he saw him the next Wednesday, and that he said he had been husking corn, and said that he had heard a touch of the murder, and that people were mean enough 'now to do anything. That is the substance of Yorke’s testimony. [The defendant has been able to account satisfactorily for where he was from the time he got out of jail up to ten o’clock on Saturday morning— (Mr. Baker: “Sunday morning.”) And up to two o’clock the next morning. Between those two periods there is a bad break, and it was between these two periods of time that John Sharpless was killed. He has not been able to tell us where he was that night. That is the unfortunate part of his case.] (Sixth assignment of error.) The next witness is Annie Yorke. She was the wife of George Yorke, and simply corroborated him as far as she could. The Commonwealth then called the reputed wife of the defendant, and the judge felt it to be his duty under the law and under the evidence to exclude that witness. Now I want to warn you against giving any weight to any intimations made as to what that witness would have testified to. You must banish it from your minds. She was the wife of the defendant and she could not testify against him; the law prohibits it; and you must not allow your minds to be in the' slightest degree affected by the reference which has been made to the affidavit by Mr. Norris. He tells ¡you that he procured the affidavit, read it to the defendant and asked him to explain it. You must not allow yourselves to give any weight whatever to what the woman swore to in her affidavit, or what she would have testified to. Nor are you to supply in your minds what you suppose the woman would have sworn to; her testimony is ruled out, and it is to have no weight whatever in settling this issue. [The next witness called was Charles Stephens. His testimony was important. You will remember the witness. He tells you that between one and two o’clock on Monday morning, the murder having been committed between nine and ten o’clock on Sunday night, some five or six hours after the commission of this terrible crime, that this defendant came to his house, cold, shivering and muddy, and desired shelter.] (Seventh assignment of error.) Pie says he let him in and gave him a quilt, and that he set him in a chair by the fire. He says that the man shivered and shook and groaned all night. He also says that the defendant told his wife in his hearing that he had been sleeping in barns and out-buildings, and that he had caught a terrible cold, and that he had seen Sharpless’s barn burned. He called it Sharpless’s barn ; he said that it lighted up the whole country round. Now that is very important testimony, and when compared with Pritchard’s, it has an undoubted bearing upon the case. If it is true, it would indicate that this defendant was in the vicinity of this murdered man’s house at that time, for, at quarter to eleven, Mr. Lindsay tells you he was awakened because of his burning barn ; and if the witness, Stephens, tells the truth, the defendant saw the light of the flames of that burning barn. Now remember, gentlemen, I do not pretend to give every word these witnesses say. I am only recalling to your minds the important parts of their testimon}'-, and if I leave anything unsaid, and you remember anything that the witnesses have said having a bearing upon the case, give it due weight.</p> <p>The next witness called was Daniel Livingstone, the keeper of the jail, who tells you that Pritchard and the prisoner were friends, that they were in the Same cell together in the daytime, and he tells you the kind of clothes the prisoner had on when he left the jail on Friday, and that is about all he knows of the case. He tells you that he was dressed in a dark suit, frock coat, and he recognized the coat so far as to say that it looks like the coat he gave him. The next most important witness in the case, important for the defendant as well as for the plaintiff, is Susan Sharpless, the widow of the murdered man, and to my mind her testimony is inclined to cast more doubt’ upon the Commonwealth’s case than that of any other witness. She was present when the alleged murderer entered the house; she was in a state of excitement and fear lest something had happened to her husbaud, and one would think that she would never forget the face of the man she supposed was his murderer, as she saw it that night. She tells you she was near enough to put her hands on him. After closely examining this man she is in doubt. She says she cannot say that this is the man that was in her house that night. She tells you his voice is similar, but that he has not got the nose and teeth. The nose she says is something like his, but the teeth she says are not the same as she saw them that night, and she says she will never forget those teeth. You will take her testimony with the other testimony in the case, and if its effect is to cause you to fairly doubt whether this is the man who murdered John Sharpless, he is entitled to the benefit of it. She gives you a description of the knock at her husband’s door at half-past eight in the evening; she tells you how the man stood with his arms close to his side, of his stealthy entrance, of his mumbling voice, and, what she particularly noticed, was his teeth. The District Attorney alleges’ that this man has prominent teeth, but it seems to me that the evidence upon that subject does not comport with Mrs. Sharpless^s description 'of the appearance of the man. Unless, therefore, there was some attempt to disguise, her testimony, as I before stated, is the most important, to inv mind, for the defendant. Jane Pratt was called next. She said that John Sharpless told her that the man who called him out was a' white man, but she says, when she went out to talk to the man, she found he was a black man. You will remember that the man was not in the full rays of the light from the house. As I understand it he was on the porch, or the vestibule, and when she spoke to him she had the impression that he was a white man from what John Sharpless had told her, but his appearance was sufficient to overcome that impression, and she found he was a black man, and her testimony as to his color has great weight, especially when Mrs. Sharpless tells you that the man who entered the house was a black man, and she says he was about the' color of this man. Now you will give to that expression of John Sharpless whatever weight it is entitled to. He said, undoubtedly, that the man who called him out was a white man, and you have the evidence of his wife and that of Jane Pratt that he was a black man. Mrs. Sharpless also fixes the time when Jane'Pratt left the house to hunt for her husband; it was 9.04. It appears that one of the windows was open, and Jane tells you that after she had been down to the road, which took her perhaps four or five minutes, she looked in at the window and saw Mrs. Sharpless walking around the table, so you may find that that was the time that the man was confronting Mrs. Sharpless,' about 9.04; that was about the time the man left the house.</p> <p>The theory of the District Attorney is, that when the murderer came from the barn he looked in at the window and saw that one of the women was missing; he supposes that the defendant also looked in at the window before, and that he had taken Jane Pratt to be a girl; she was small and had something of the appearance of a girl; and when he came into the house and found that the one he had previously seen through the window was not there, he thought she had gone to give the alarm, and that is the reason he asked, “Where is the girl?” That is the theory of the District Attorney, that when the man demanded, “Where is the girl?” he meant Jane Pratt, and when he found she was not there, he supposed she had left for the purpose’ of giving the alarm, and that is the reason that no further felony was perpetrated. Take that for what it is worth. But it is somewhat singular that a man should be murdered, and his person not robbed and no attempt made to rob the house, if that was the intention of the murderer. Now give this theory of the District Attorney whatever weight it is entitled to, as applied to the evidence. If it is reasonably consistent with the evidence, adopt it; if not, reject it. Lydia Reynolds says her eyesight is not good ; her testimony corroborates Jane Pratt and Mrs. Sharpless. She says she thinks there is a similarity between the voice of 'the defendant and the voice of the man as she heard it that night.</p> <p>John Lindsay’s testimony is important. It is important for the defendant as well as for the Commonwealth. He tells you that his barn was burned that night; that he went to bed at ten o’clock, and that at a quarter of eleven he was awakened by his barn burning, and that he supposes the barn had been burning for some" time. He also tells you that he knew the defendant, and that he believes that John Sharpless knew him,, as he had sent this defendant over there upon errands. Now you can take that testimony, and if it has caused you to doubt whether this man was the man that murdered John Sharpless he is entitled to the benefit of it. Unless he disguised himself, the presumption is that John Sharpless would know him. This may have been his reason for calling the man out, so that he might rob him there, out in the dark, and enter the house afterward. But the presumption is, that he would not go to the house of a man that he knew without being disguised, and there is no evidence that he was disguised. The fact that he had a white handkerchief around his neck is not evidence that he was disguised. Neither Susan Sharpless nor Jane Pratt say that he was disguised. If he knew John Sharpless, and Mr. Lindsay says that he thinks that he did, you should give that due weight in considering the case. Walter Lindsay’s testimony merely corroborates his father.</p> <p>[Then comes the testimony of another very important witness — to mj'- mind, one of the most important witnesses in the case — Mr. Lewis Morris Lewis. He lives in Upper Darby. One week after this murder, his house was entered by somebody, and among other things taken he missed a coat, and found a coat which was left there. The coat he missed was found in the apartment of the defendant, and the coat he found is identified as looking like the coat that Mr. Livingstone gave to the defendant when discharged from jail a week or so before ; and it is also identified as looking like the coat that Mrs. Sharpless says the man had upon his back the night of the murder. I look upon this testimony of Lewis M. Lewis as very important. Undoubtedly, if the coat that is produced is the coat that was worn by the man who stood in the presence of Mrs. Sharpless, then that coat would seem to be sufficiently traced to the defendant. The defendant, when asked to explain this difficulty, said that he had bought the coat that had been taken from Mr. Lewis, from a tramp; and when he was asked how he came to be possessed of the spirit level, he said he had found it upon the street. He was not asked how he came to be possessed of the other articles, but that excuse is too flimsy to be believed; it is not sufficient, to my mind, to raise a reasonable doubt.] (Ninth assignment of error.) •</p> <p>It seems to me there is evidence from which you may find that this defendant left the coat which is produced here, and identified by Mr. Livingstone and by Mrs. Sharpless, at Mr. Lewis’, and took Mr. Lewis’ coat with him, and at the same time took the other articles found in his room. I say to you, that in my opinion Mr. Lewis’ testimony has a bearing upon the general question, as well as upon this particular part. It is very important, and it ought to be given due weight.</p> <p>The next witness was Dr. Frank Rowland. He made the post-mortem examination, and has described to you the character of the wounds upon the murdered man. He tells you that either might have produced death, but that the one upon the side of the head was the immediate cause of the death of John Sliarpless, and was produced by some heavy, blunt instrument like a hatchet. In his judgmeut, the one upon the top of the head, on the occipital bone, was made by a sharp instrument, looking as if the one was made by the sharp part of the hatchet, and the second by the pole; but no hatchet has been found, and there is no positive evidence how or with what instrument the blow was inflicted; it might have been done with the heel of a boot.</p> <p>[Next comes the testimony of William Hahn. If the jury believe this witness, and I can see no reason why they should nott they will come to the conclusion that the negro man who called at his stand early on Monday morning, before it was known in Philadelphia that this murder had been committed, because the details were not telegraphed to Philadelphia until 10.30, was the murderer of John Sharpless. For at 8 or 8.30 in the morning, two hours before the associated press received the news from Chester, a colored man came to his stand and asked for a paper giving an account of the murder near Chester. I say to }rou that the ju^ may come to the conclusion, without much hesitation, that the man who asked for that paper, whoever he was, was the murderer of John Sharpless.] (Eighth assignment of error.)</p> <p>He was, in all probability, the man who committed the deed. ' That would seem to indicate .that it was a colored man and not a white man. As to the identity of this man, it is not by any means satisfactory. He says that in general appearance the prisoner looks like him; he tells you how he was dressed ; but he says-he thinks the man had broader shoulders; he says he was the same color.. He looked at-the. coat and said that it was similar.' You can take the testimony of that witness and fit it with the other testimony, and then form your conclusion from the whole. The next witness called tells you that he is the agent of the associated press in Chester. By this association all the newspapers, he says, have an arrangement among themselves by which any item of news is distributed among all the papers belonging to the association, and most of the papers belong to it. He says that he is the agent in Chester and that it was 10.30 Monday morning when he sent .the dispatch. Morris Landauer, a reporter, says it did not appear in the Philadelphia morning papers, and that it was not known to the press. Chief of Police Williamson, however, says that he telegraphed to Philadelphia at 2.13 in the morning that a murder had been committed, but it appears that it did not get into the papers. Then comes Thomas Alexander. His testimony is only important as bearing upon the manner in which the man was dressed. He corroborates the other witnesses as to his dress and the finding of the spirit level, and as to what was said by the defendant about the coat. It is very important as bearing upon that point. Chief Williamson’s testimony was directed to the time he sent the dispatch. My recollection is, that it was 2.20 in the morning.</p> <p>The testimony of James McKniff is.not important. The testimony of Carrie Lane has a considerable bearing upon the case. She tells you that she has rooms to let, and that the wife, or the alleged wife, of the defendant, secured a room there for herself and-her husband, and that the coat found there and the other articles were the 'property of the defendant, and in that respect her testimony is important. Then comes the testimony of John Norris, one of the editors of the Philadelphia Record, who is evidently a gentleman of more than ordinary intelligence and of apparent candor. He seems to have -exercised more than ordinary energy in endeavoring to ferret out this murder. He is to be commended for that, not condemned. He tells you that the px-ess gave, after the details of the murder had been worked up as far as they could, $125 to ■Detective Alexander to defray the actual expenses incurx-ed. There was nothing wrong in that. That money was paid; it was not demanded. It was given to cover incidental expenses incurred in working up the case. He also tells you that lie had sevex-al conversations with this defendant, which he recounted here yesterday. He tells you that soxne of the efforts of the defendant to explain away inconsistencies were failures. He tells you that after a long conversation, calling the defendant’s attention to inaccuracies and inconsistencies, to what his wife had said (to this you will, of course, pay no attention except so far as the answers are concerned), he said it was only a pack of lies, and that he supposed he would be tried and reckoned he would be hung for it. That is what he said. You can say what bearing that might have upon the case. Witness also states that he walked over the ground from the place where the defendant arrived at Stephens’house to the Sharpless barn, and he says he walked it in three hours and forty minutes. In this he is corroborated by Lieutenant Roche and Mr. Curley, and this is all the testimony of ’the Commonwealth. 1 have called your attention to the witnesses now and given you a synopsis’ of their testimony. If I have left untouched any material point, the jury can remember it and, of course, supply it. My object in calling your attention to these witnesses is to strengthen your memory, because upon the testimony you are to decide the case. I have no doubt you will now remember sufficiently all the important points in the case.</p> <p>' Now as to the defence. The defendant alleges that there is a mistaken identity here, and that the witnesses that have been produced against him, Pritchard and Stephens, are actuated by a malicious desire to get him out of the way. He says that Pritchard is anxious to get him out of the way in order to get the reward, and that is the object he has. He says his wife is anxious to get rid of him that she may live with another man, and that she may not be liable for prosecution for adultery while she is with him, and that Stephens wishes it so that he may live with his wife. That is the defence. He also relies upon the failure of Mrs. Sharpless to identify him, and lays great stress upon the fact that Joh’n Sharpless said that it was a white man, and it is apparent that the defendant is not a white man. The testimony of Elijah Yorke, Mrs. Simmons, Lydia, Fitzgerald, and Benjamin White are not important except to corroborate some of his statements, and to explain some inconsistencies in what he had said to Mr. Norris. But upon the whole, their testimony corroborates one side about as much as the other. I have no doubt but the girls all tell the truth. There is nothing inconsistent with their testimony and that of the Commonwealth. You can easily harmonize all the testimony produced upon the part of the defendant with that on the part of the Commonwealth without perjury in any witness. We have also John C. Lindsay; as I before stated, he-informed you that in his judgment John Sharpless knew this man, and that is an important part of the case. Now I am about to leave the case with you, and I have no doubt that after you have carefully considered all the evidence, you will be able to come to a satisfactory conclusion. As I before stated, you must not try to please the people ; you must not find the defendant guilty because you think it will be acceptable and agreeable to a great-majority of the people of Delaware county to see some victim suffer for this crime. If the defendant is found guilty, it must be because from all the evidence you consider him guilty; and it seems to me under all the evidence, that you may find him guilty or you "may find him not guilty; you may find him guilty of murder in the first degree, or you may find him guilty of murder in the second degree. With these remarks I leave the case with you entirely. We have done our part and you must now do yours. Do it conscientiously, and the court will be satisfied with your verdict.</p> <p>A rule for a new trial was granted and after argument discharged. Verdict of guilty of murder in the first degree, whereupon the defendant was sentenced to be hanged. He thereupon took this writ and in addition to the assignments of error above shown he filed the following assignments of error.</p> <p>The record does not show that the prisoner was present when the jhry were sworn. (Tenth assignment of error.)</p> <p>The record does not show that the prisoner was present when the verdict was rendered. (Eleventh assignment of error.)</p> <p>The record does not show that the prisoner was present during the time of trial. (Twelfth assignment of error.)</p> <p>The record as first made up did not show that the prisoner was present when the jury was sworn, when the verdict was rendered or during the time of the trial. As a matter of fact however, the prisoner was present at the swearing of the jury, the rendering of the verdict and through all the time of the trial. The attention of the court was called to this omission during the same term at which the motion for a new trial was overruled and sentence pronounced. The court thereupon ordered the necessary correction to be made so that the record would conform to the facts as they actually were. The record was accordingly thus corrected.</p> <p>— I. The first and fourth specifications of error will be considered together, as they both relate to the admission of Lewis Morris Lewis’ testimony.</p> <p>By this witness the Commonwealth proposed to prove that a spirit level and a coat were taken from his house, and another coat was left there by the person who took Mr. Lewis’ coat.</p> <p>It was error to admit this testimony..</p> <p>“ To make one criminal act evidence of another, a connection -between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish, or it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other:” Shaffner v. Commonwealth, 22 P. F. S., 60; Goerson ¶. Commonwealth, 3 Outerbridge, 398; Shaffner v. Commonwealth, 22 P. F. S., 65; Zell v. Commonwealth, 13 Norris, 258.</p> <p>II. The second and third assignments of error may be considered together.</p> <p>When the Commonwealth directed the prisoner to “stand up,” and to otherwise make profert of his person, unseen it held over him, then presumed wholly innocent, the swurd of Damocles. It is not the law of the land that truth should be thus extracted or the guilty convicted.</p> <p>This point is one never reviewed before, we believe, in the Supreme Court of this state, but is covered in the following authorities: State v. Jacobs, 5 Jones (North Carolina), 259.</p> <p>In Day v. State, 63 Georgia, 669, the court say : “ Better that the vindication of outraged justice be postponed for a season than that a human being, however deeply stained with crime, be convicted and punished contrary to law.”</p> <p>See also People v. Mead, 50 Mich., 228: “It is highly improper,” commenting upon this Michigan case, says the Amer. Crim. Law Magazine, p. 810, “to ask one accused to do any act that would aid in any way to make evidence against him.”</p> <p>Nothing is better settled than that a defendant in a criminal charge cannot be compelled to produce a private paper which would be evidence against him on his trial.</p> <p>There is no difference in the principle between this protection and the shield of the Constitution, which protects his person from being indecorously inspected: People v. McCoy, 45 How. (N. Y.), 216.</p> <p>The true intent of the constitutional guarantee, which we invoke, is that an accused in a criminal trial should not only have the right to close his mouth, but he could fold his arms and refuse to be a witness against himself in any-sense, or to any extent, by furnishing or giving evidence against himself, whether by testimony under oath or affirmation, or confessions or admissions without either, or by proof of a physical nature.</p> <p>For a full review of this subject, new in this state, see Amer. C. L. Jour., Vol. 6, 805.</p> <p>No consent of the prisoner in the extremity of his need ought to bind him:” Prine v. Com’th, 6 Harris, 103; Pieffer v. Com., 3 Harris, 470; Rex v. Woolf, et ah, 1 Chitty’s Rep., 401.</p> <p>In the case of Stokes v. The State, 30 Amer. Rep., page 72, the court held that an accused person in the presence of the jury should not be asked to make evidence against hiniself. This is a case where a criminal defendant was called on to make tracks in court in a pan of soft mud brought in for the purpose and in the presence of the jury.</p> <p>The Act of 1885 is ably construed in Commonwealth v. Brown, 16 W. N. G, 557.</p> <p>III. The court must not decide on the weight of the evidence : Elkins v. McKean, 79 Pa. St., 493.</p> <p>IV. The burden of proof never shifts but rests on the Commonwealth throughout: Turner v. Commonwealth, 5 Norris, 54 ; Pannell v. Commonwealth, 5 Norris, 266; Commonwealth v. Brown, 16 W. N. Q. 557.</p> <p>V. A misstatement by the judge in his charge of any of the evidence is error: Goersen v. Com’th, 3 Out., 388.</p> <p>Where the language of the charge as to the true character of testimony tends to mislead the jury, it is error : Fawcett v. Fawcett, et al., 14 Norris, 376 ; Elkins v. McKean, 79 Pa. St., 493.</p> <p>VI. The tenth, eleventh and twelfth specifications of error relate exclusively to the correctness of the record, as it does not show that the prisoner was present when the jury were sworn, or at the rendering of the verdict, or during the time of trial.</p> <p>In capital felonies, it must appear by the record that the prisoner was present at .the trial, verdict and passing of sentence; his presence cannot be presumed: Dougherty a. Com’th, 19 P. F. S., 286 ; Hamilton v. Com’th, 4 Harris, 129.</p> <p>In Prine v. The Commonwealth, 6 Harris, 1.04, Gibson, C. J., said: “Never has there heretofore been a prisoner tried for felony in his absence. No precedent can be found in which his presence is not a postulate. of every part of the record.”</p> <p>The Act of 1718 is the groundwork of our criminal law, and is still in force : Dunn v. Com’th, 6 Barr, 384.</p> <p>The record must show that the prisoner was present at the trial, particularly at the rendition of the verdict. Every record of this kind ought to show clearly that the prisoner was tried and sentenced, and is to suffer according to the substantial forms of law: Id., 389.</p> <p>— I. The effort of the Commonwealth was not for the purpose of “making one criminal act evidence^of another” as in Shaffner v. Commonwealth, 22 P. F. S., page 60, and Goerson a.-Common wealth, 3 Outerbridge, page 398. Nor was.(“ The evidence so dubious that the judge did not clear!}" perceive the connection ”) as is referred to in Schaffner v. Commonwealth, 22 P. F. S., 65. Nor was there any attempt during the trial to show that the defendant was guilty of any other crime than that for which he was charged. As stated before, it was simply a link in the chain of circumstantial evidence.</p> <p>Evidence, however slight, which tends to corroborate the testimony as to the res gestee will not be considered incompetent: Moyer v. The Commonwealth, 89 Leg. Int., 160; MeConkey v. Commonwealth, 40 Leg. Int., 102.</p> <p>“This court must look at the real competency of the evidence and not at the order of its reception- when it is found that the evidence is all finally competent, will not reverse because of the time or .order of its introduction: ” Carroll et al. v. The Commonwealth, 3 Norris 152.</p> <p>II. The court below says: “As the ease stands the prisoner voluntarily exhibited himself to the witness for identification. After carefully examining him the witness failed to identify him. His counsel then considered it a strong point in his favor. The jury were so instructed by the court. As he did not see proper to object then it is too late to object now. The authorities are abundant and clear upon the subject: Fife v. Com’th, 5 Casey, 429; People v. Thompson, 41 N. Y., 6; People v. Casey, 72 Id., 399; Connors v. People, 50 Id., 240; Brotherton v. People, 75 Id., 159; People v. Guidice, 2 Eastern R., 923. “It is enough if the court respond to all objections to testimony taken by either party and give the proper instructions to the jury. A verdict will not be set aside because improper evidence was admitted, if no objection to its admission was made at the trial: 1 Wharton’s C. L. Motions for New Trial; Wait v. Maxwell, 5 Pick., 217 ; Dau v. Gerger 4 Halst., 225; Worford v. Isbell, 1 Bibb., 247; Cannon v. Alsbury, 1 A. K. Marshall, 76; Rice v. Bancroft, 11 Pick., 469.”</p> <p>The Supreme Court has no authority to look beyond the record and as to the matter complained of in the second and third assignments of error it is not based on any exceptions taken in the court below : Jewel v. Commonwealth, 10 Harris, 99; Catheart v. Commonwealth, 1 Wright 110.</p> <p>The right of review is limited by law “ to points of evidence or law exeepted to by the defendants and noted and filed of record by the court: ” Fife et al. v. Com’th., 5 Casey, 429; Hopkins v. Com’th., 14 Wright, 9.</p> <p>“After the admission of evidence without objection, there can be no bill of exceptions to its admission nune pro tune:” Robinson v. Snyder, 1 Casey, 207.</p> <p>“That whether the evidence received on part of the plaintiff be legal or not it was heard without objection and the court was not asked to say anything about it in the charge: ” Robinson v. Snyder, 1 Case}7, 207.</p> <p>“ The defendant permitted the case to close and argued upon the effect of what the witness had stated both to .the court and to the jury. Having used it for his own purpose, and having taken the chance of influencing the jury by it favorably to himself he thereby waived his objection and passed his time:” Rees v. Livingston,'5 Wright, 119; Mclnroy et al. v. Dyer, 11 Wright, 120,</p> <p>“The defendant cannot permit answers which he may now choose to call irregular to go to the jury without objection and to suit his own purpose at the time of trial, and then claim a new trial on the ground of its admission : ” Commonwealth v. Sullivan, 13 Phila., 418.</p> <p>III. “A judge may rightfully express his opinion respecting the evidence, and it may sometimes be his duty to do it, yet not so as to withdraw it from the consideration and decision of the jury:” Johnson v. Commonwealth, 4 Norris, 65; Kilpatrick v. Commonwealth, 7 Casey, 216.</p> <p>■ “If the case were in the least doubtful upon this part of the evidence, or if there had been anything for the jury to hesitate about, there might have been more force in this assignment of error. As it stands, the defendant could not have, been injured by that portion of the charge complained of. The charge of the court must be considered as a whole: ” Kilpatrick v. Commonwealth, 7 Casey, .216.</p>

<p>Error to the Court of Common Pleas of Somerset County: Of January Term 1887, No. 72.</p> <p>Covenant by George H. Hocking brought April 17th, 1885, against the German American Insurance Company of Pennsylvania, on a policy of fire insurance issued by the defendant to the plaintiff.</p> <p>The facts of the case as they appeared on the trial before Baer, J., were as follows:</p> <p>On the 3d day of December, 1884, the defendant issued a policy of fire insurance to Geo. H. Hocking, for $1000. “ On his two story, frame, tin-roof building, occupied for mercantile purposes and family residence, situate on wre$t side of Centre street, Meyersdale, Penn’a,” &c., &c.,.“and other concurrent insurance permitted,”'to rup from the 29th Nov., 1884, to the 29th Nov., 1885.</p> <p>At the time this policy was issued, Hocking had the following policies of insurance on the same property, namely, in the Howard Insurance Company of New York, for $2000, dated 24th March, 1884, running to 24th March, 1885, and in the Commercial Union Assurance Company of London, for $1000, dated 1st Dec., 1884, and running to 1st Dec., 1885.</p> <p>In the policy of the Howard Insurance Company it was-provided, “$2000 additional concurrent insuranceand in the policy of the Commercial Union it was provided, “Privilege of other insurance,” &c.</p> <p>By the terms of the policy it was provided, inter alia, as follows:</p> <p>First. “And said company• hereby agrees to make good unto the said assured, his executors, &c., all such immediate loss or damage, not exceeding in amount the sum insured, nor the interest of the assured in the property, except as herein provided, &c., &e., &c.; the amount of loss or damage to be estimated according to the actual cash value of the property, at the time of the loss, and to be paid sixty days after due notice and proofs of the same shall have been made by the assured and received at this office, in accordance with the terms and provisions of this policy, unless the property be replaced, or the company has given notice of its intention to rebuild, or repair the damaged premises.”</p> <p>Second. Condition VII. “In case of any other insurance upon the property hereby insured, whether prior or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss •sustained than the sum hereby iusured bears to the whole amount insured therein, whether such other insurance be by. specific or by general or floating policies. Re-insurance for any other insurance company to be on the basis of joint liability with said company, and in the event of loss this company to pay its proportion of said loss sustained by said company under their policy.</p> <p>Third. Condition X. Persons having a claim under this policy shall give immediate notice thereof to the company, and as soon thereafter as possible, render a particular account and proof thereof, signed and sworn to by them, setting forth, 1st, a copy of the written portion of this policy and all endorsements thereon ; 2nd, other insurances, if any, on same property or any portion thereof, with copies of the written portion of each policy and endorsements thereon; 3rd, the actual cash value of the subject insured, at the time immediately preceding the fire; 4th, the ownership of the property insured, and the interest of assured in same; 5th, for what purpose and by whom the building insured or containing the property insured and the several parts thereof, were used at the time of the loss; 6th, if the claim be for loss on a building, the assured shall furnish a plan and specifications of the building destroyed; 7th, the date of the loss and the amount thereof; 8th, how the fire originated so far as said persons know or believe,” &c., &c. It is further provided, that “ until such proofs as above required are produced, and examinations and apprisals permitted, the loss shall not be payable. And this policy is made and accepted expressly on the foregoing terms and conditions.”</p> <p>On the 4th of December, 1884, the building was entirely destroyed by fire. The next morning the company received notice of the loss. The value of the building was from $4000 to $4500.</p> <p>The secretary of the company wrote Hocking on the 21st of February, 1885. calling his attention to condition 10 of the policy,' and stated “ as soon as we receive necessary proofs, &c., we can determine whether we owe you anything, and if so, how much.”</p> <p>On the 28th of March, 1885, proofs of loss were made, which contained notice of the amount of insurance in the Howard Insurance Company and in the Commercial Union Assurance Company of London, in the former, $2000, and in the latter, $1000; but the assured did not “ furnish a plan and specifications of the building destroyed,” as required by the terms of the policy.</p> <p>The only proofs of loss were those made on the 28th of March, 1885, and Hocking, without waiting 60 days, in which, the company had time to pay, provided the proofs were properly made, and the liability of the company fixed, brought suit, on the 17th of April, 1885, in defence the plaintiff in error alleged that the right of action had not then accrued.</p> <p>The original summons was not served. An alias summons issued June 1st, 1885, and was .served 15th June, 1885.</p> <p>The defendant requested the court to charge inter alia:</p> <p>1. That inasmuch as it has been proAmn in this case that the fire took place on the 4th or 5th of December, 1884, and proofs of loss Avere not made out until the 28th of March, 1885, the plaintiff did not comply with condition No. 10 of the policy, which requires the plaiutiff to furnish proofs of loss as soon thereafter as possible; and the verdict must be for the defendant. Refused.</p> <p>2. That the plaintiff in his proofs of loss furnished, did not comply Avith condition 10 of the policy, which required him to furnish a plan and specifications of the building ; and therefore the verdict must be for the defendant.</p> <p>Refused except as ansAvered in the general charge.</p> <p>3. That inasmuch as the proofs of loss Avere made on the* 28th of March, 1885, and as the company, under the terms of the policy, had 60 days time in which to make payment, “ after due notice and proofs of the same shall have been made by the assured and received at the office of this company,” and as the suit was brought on the 17th of April, 1885, the right of action had not accrued to' the plaintiff; and the verdict must be for the defendant.</p> <p>This point on the facts stated we reserve to be considered afterwards; it is purely a question of law on the facts stated.</p> <p>After verdict the court made the following order:</p> <p>Sur motion for new trial and motion to enter judgment non obstante veredicto. On due consideration after full argument, the rule for new trial is refused and judgment ordered to be entered on the verdict.</p> <p>4. That under the pleadings and evidence the verdict must be for the defendant.</p> <p>In the general charge the court instructed the jury inter alia as follows:</p> <p>It is claimed by the defendant that the particular account that is required of the claim was not furnished by the assured as soon as possible after the notice and sworn to by him, setting forth, the requirements named in article 10 of the policy; but if you find that notice had been given of a total loss and that the number of the policy was given, such a notice or statement of loss, though it was by the first or preliminary notice given by telegraph, was a substantial particular statement, and was a compliance with the condition requiring it to be made; and as the policy does not declare a forfeiture for non-compliance with the stipulations contained in article 10, the jury must, from all the evidence, determine if such particular statement under oath were given in a reasonable time ; and if it were, the requirement of the policy has been substantially complied with so far as relates to notice...... The defendant says the particular statement furnished did not furnish a plan and specifications of the building destroyed; and therefore, he insists, there can be no recovery because of that. If this, by the terms of the policy, were to be construed as a condition precedent, upon the non-performance of which the policy was to be forfeited, such omission would be fatal; but we do not so read and construe the contract. On this trial the dimensions and plan of the building were proven, though no draft was produced here; and as the defendant offered no evidence indicating any desire to adjust the loss or to rebuild, and if you find that the defendant company declined to acknowledge the liability, then we submit to the jury the question whether or not, under all the evidence and circumstances in this case, and in the absence of any request for plans and specifications, the clause in question was waived.</p> <p>■ If the company did not conclude to resist payment, plans and specifications would have been very important because they would have been necessary then in determining whether the company would exercise its right under the policy to pay the money or to rebuild. But if it relied on defeating a recovery on any other ground, such conduct might, by the jury, be considered on the question of whether it was waived ; and if found to have been waived,’it would not bar a recovery now.</p> <p>Verdict for the plaintiff in the sum of 11100.66 and judgment thereon, whereupon the defendant took this writ assigning for error the answer of the court to the defendant’s points and’ that portion of the general charge above given.</p> <p>— Our fourth point was reserved by the court below, but was afterwards refused and judgment ordered to be entered on the verdict. And herein, as it is viewed by the counsel for plaintiff in error, is the principal error in this case.</p> <p>In the case of Camberling v. McCall, 2 Yeates, 281, it is held “ when a policy of insurance expresses that the loss shall be paid three months after proof made thereof, a suit can not be supported until the three months have elapsed.” In delivering the opinion of the court McKean, C. J., says: '‘The clause in the polic3r, that the loss shall not be demanded till within three months after proof made appears highly material. The parties have mutually stipulated that no duty shall arise till within a certain period after notice given of the loss, and the commencement of a suit before that time has elapsed is premature. Two reasons may be suggested for this delay: 1st, The underwriters have thereby an opportunity of investigating the justice of the plaintiff’s claim ; and, 2d, an interval is allowed them for making up the money, if his pretensions, are well founded.” See also on this point Kemble v. Hamilton Fire Insurance Company, 8 Bosworth, (N Y.) 495; Bryant v. Commonwealth Insurance Compaq7, 6 Pick., (Mass.) 131; Halton v. Provincial Insurance Company, 7 Upper Canada 355; Davis v. Davis, 49 Maine, 282; County Mutual Live Stock Asso. v. Evans, 13 W. N. C., 203.</p> <p>— As the loss was total and the company were immediately so notified, further notice was not necessary: Lycoming Ins. Co. v. Schollenberger, 8 Wr., 262; Farmer’s Mat. Fire Ins. Co. v. Moyer, 1 Out., 441; Home Ins. Co. v. Davy, 2 Out., 280; Penna. Fire Ins. Go. v. Doughert3r, 6 Out., 568.</p> <p>Had further notice fleen necessary it was waived: Hall v. Ins. Co., 2 Phila. 332; Ins Co. v. Mann, 13 W. N. C., 345; Western Assurance Co. v. Ackerman, 2 Penny., 145; Susquehanna Fire Ins. Co. v. Cusick, 16 W. N. C., 136; Lycoming Ins. Co. v. Schreffler, 6 Wr., 188.</p> <p>This company resisted payment of the claim, on grounds wholly independent of the question of the suit having been prematurely brought, and therefore that defence should not avail now. Farmers’ Ins. Co. v. Moyer, 1 Out., 449; Farmers’ Ins. Co. v. Meckes, 10 W. N. C., 306.</p> <p>If it be thought that the second or alias summons is a continuance of the first case, then we ask your Honors to permit an amendment of the record, by striking out the word “ alias,” in the case at No. 55, September Term, 1885. That this court has power to permit such an amendment, and in a proper case, such as this is, will do so, cannot, we think, be doubted: Feig v. Meyers, 6 Out., 10.</p>

<p>1. Under the terms of a policy of fire insurance, the assured was required forthwith to give notice of loss and within sixty days render a particular account of said loss. The assured gave notice of the total loss of tho building insured forthwith, but did not render a particular account of said loss for nearly five months. The company, however, received said proofs of loss, referred them to its adjuster and retained them without objection or complaint for five months. In an action on the policy by the assured tlie company defended inter alia on the failure of: the assured to furnish proofs of loss as required by the terms of the policy. Held, That the company had waived any objections to the proofs of loss they might have made.</p> <p>2. Where an agreement to arbitrate does not provide for submitting matters in dispute to any particular person or tribunal named, but to one or more persons to be eventually chosen by the parties, it is revocable by either party, and such a provision is not adequate to oust the jurisdiction of tho courts having cognizance of the subject-matter of the dispute.</p> <p>3. A policy of fire insurance provided, that in case of loss and any difference arising between the parties respecting the loss or damage, at the written request of either party the matter should be submitted to arbitrators and that no suit or action against the company should be sustainable in any court of law or chancery until after the award of said arbitrators should be filed fixing the amount of the claim. A loss having occurred and a difference arising respecting the loss,---two arbitrators , were appointed. They failed to agree. In an action brought by the assured on the policy against the company, the company defended inter alia on the action having been brought before the filing of the award of arbitrators. Held, That the bringing of the action, on part of the assured, was a revocation of the submission to arbitrators.</p> <p>4. Under the terms of a policy of fire insurance it was stipulated that the Company might rebuild the property destroyed within a reasonable time, giving notice of their intention so to do within thirty days after the receipt of the proofs of loss; and it was also stipulated that the loss was not payable until sixty days after the receipt of the proofs of loss. 'The assured, having given notice forthwith to the company of the total destruction of the property insured, brought an action on his policy some four months after but within twenty days of his’ furnishing the company proof of loss. Held, That the action was prematurely brought and could not therefore be maintained.</p> <p>5. The 'German American Insurance Co. v. Hocking, 5 Amerman, followed.</p>

173. Assumpsit by George H. Hocking, brought April 17th, 1885, against the Howard Insurance Company of New York on a polic3r of fire insurance issued by the defendant to the plaintiff.

<p>Error to the Court of Common Pleas of Chester county: January Term, 1887, No. 261.</p> <p>Covenant by Frederick Bingaman, Emmor B. Cope and Wellington Hickman against Wellington Hickman, M. B. Hickman, Theodore P. Apple, the First National Bank of West Chester, William Hoopes, T. A. Lloyd, A. E. Lloyd Milton Berry and E. T. Cope & Son. The following are the facts of the case as they appeared on the trial:</p> <p>'On March 31st, 1880, Seneca G. Willauer conveyed by deed of assignment all his property, real and personal, to Wellington Hickman and-David M. McFarland, in trust for the benefit of his creditors.</p> <p>' Part of the property thus conveyed consisted of a tract of land in West Cain township, Chester county, known as the “ Cedar Knoll Kaolin Works,” upon which was a mine of kaolin clay and water power, machinery etc., for washing, pressing and preparing the same for market. Many of the creditors of the assignor, as well the assignor himself, considered this an exceedingly valuable property, and believed if the mines were operated and works run, they could be made to go far towards paying Willauer’s debts, who otherwise would prove hopelessly and disastrously bankrupt.</p> <p>In deference to this feeling, the assignees by advertisement called a meeting of the creditors.</p> <p>This meeting appointed a committee to visit the mines and works in company with such experts as they might select, and make report to an adjourned meeting.</p> <p>At the next or adjourned meeting the committee made report in favor of retaining and operating the works, which report was adopted by the meeting, and upon the assignees declining to undertake the running of the works and mines, the meeting recommended Frederick Bingaman, who was hot a creditor of Wilauer’s, and Emmor B. Cope and Joseph J. Morris, who were creditors, as a committee to operate the same.</p> <p>. These meetings were attended by both lien and common creditors. But after the adjournment of the last meeting, at the instance of some of the lien creditors, Wellington Hickman was substituted on the committee in place of Joseph J. Morris, and the following agreement was prepared, which was signed by the assignees and all the lien creditors.excepting one.</p> <p>Whereas, the creditors of Seneca G. Willauer, deem it advisable to continue in operation the kaolin works of said Willauer for the purpose of liquidating his indebtedness: :</p> <p>\ And whereas, the undersigned lien creditors and assignees of the said Willauer, being willing that the said kaolin works shall- be operated, have entered into the following agreement, for the purpose of carrying out the wishes of said creditors, to wit: The said kaolin works, mines and farm shall be placed in the hands of a committee of three (3), to consist of F. Bingaman, E. B. Cope and Wellington Hickman, who shall have full power and authority to operate the same in such manner as, in their judgment, will be for the best interests of said creditors, and shall not be held responsible for any errors of judgment or losses in the conducting of the business; that .said committee are hereby empowered to purchase carts, horses, harness, and such other personal property as may be necessary for conducting the business, and pay for the same out of the first moneys coming into their hands from the sale of kaolin or clay; that said committee shall each respectively have and receive two dollars per day and their traveling expenses for each and every day actually devoted to said business; that, after deducting aR expenses, including taxes, insurance, etc., said committee shall, on the first day of October, next, and every six months thereafter, pay over into the hands of the assignees of said Willauer the net proceeds of said business for distribution in manner following: First. The interest due on the mortgage of William Hooper for debt, three thousand dollars, shall be paid. Second. One seventh of the balance shall be paid to Milton Berry, on account of principal and interest of. his mortgage debt, five hundred dollars, until the same shall be satisfied in full. Third. The remaining six sevenths shall be paid to the judgment and mechanic lien creditors, according to their priority according to law, until they are paid in full. Fourth. After payment of all lien creditors, distribution shall thereafter be made pro rata among tire common creditors. It is also further agreed, that the greater part in value or in number of the lien creditors shall, on three months’ notice, in writing, to said committee and said assignees have power to revoke this agreement, and they shall also have power to fill any vacancy or vacancies that may at any time occur in said committee. Should said committee or a majority of them, or the lien creditors, as above provided, at any time deem it advisable to discontinue the operation of said kaolin mines and works then, and in such case, thejr shall give said assignees written notice, who shall as expeditiously as possible proceed to sell said farm, mine and works, and distribute the proceeds thereof according to law. It is also further understood and agreed, that neither the said assignees nor their sureties shall in any way or manner be held responsible for any part or all of said kaolin mines, works, farm or property while the same is in the hands of the said committee, except only for such amount of the proceeds thereof as they may actually receive in cash for distribution</p> <p>Witness our hand and seals, this 8th day of May, A. D. 1880.</p> <p>C Wellington Hickman, [l. s.] I One of the assignees of S. Gr. Willauer. W. P. Mercer.<( D. M. McFarlan, [l. s.] I One of the assignees of S. Gr. Willauer, ^ Wellington Hickman, [l. s.] M. B. Hickman, [l. s.] Theo. P. Apple, [l. s.] E. Thatcher, Cashier First Nat. Bank of West Chester, [L. s.] William Hoopes, [l. s.] T. A. Lloyd, [l. s.] A. E. Lloyd, [l. s.] Milton Berry, [l. s.] E. T. Cope & Son, [l. s.] Witnesses Present: Jos. Hemphill. William Dowlin. H. M. Philips. W. P. Mercer. Ida Y. Berry. F. Bingaman.</p> <p>Upon the execution of this agreement, and under its provisions, the assignees turned over the kaolin works and mines to the committee who went into possession, purchased horses, carts, harness, tools and other personal property with their own money and operated the works at their own expense for about four or six months or until November, 1880. Finding it impossible to carry on the business at a profit they ceased work, returned the real estate to the assignees, converted the personal property into money and settled an account of their operations, showing a loss of $1,833.62.</p> <p>The plaintiffs requested the court to charge inter alia as follows: 1. The paper writing sued upon is a contract under which the defendants are liable to pay the plaintiffs for their services, at the rate stipulated therein, their traveling expenses, and all moneys paid, laid out and expended by them in carrying on the kaolin works,' which the receipts of the business were insufficient to meet.</p> <p>Answer. This is disaffirmed.</p> <p>In the general charge the court instructed the jury as follows : I instruct you that, under this agreement, the plaintiffs are not entitled to recover against the lien creditors who signed it, and that, therefore, your verdict will be for the defendants.</p> <p>Verdict for the defendants and judgment thereon, whereupon the plaintiffs took this writ, assigning for error the answer of the court to their first point and instructing the jury-' to find for the defendants.</p>

157. Scire facias to revive and continue the lien of a judgment brought by John Otto and John R. Hazlett, assignees of Knapp & Thompson, against E. D. Trump, endorser of A. T. Nichols & Co. Pleas, payment with leave, and specially release and discharge.

<p>In an action on the case to recover damages for the loss of a horse which had strayed from the pasture through a decayed and broken down fence, and fallen into a stone quarry, the court refused to charge the jury, as requested, that if the plaintiff knew that the quarry of the defendants was open and exposed on the side adjoining the property occupied by him, and with such knowledge he put or permitted his horse to pasture in the adjoining field, and while so pasturing the horse strayed on the property of the defendants and was killed by accidentally falling into'a stone quarry, the plaintiff was guilty of contributory negligence, and could not recover. Held to be error, for the gist of the action was the negligence, and not the breach of the contract to keep the fence in repair, and therefore any contributory negligence on part of the plaintiff would defeat his recovery.</p>

36. The record showed the following: On September 16th, 1884, upon petition, the court appointed viewers to view and make report of the propriety of laying out a public road, to begin in a public road leading from Kaul’s mill to George Reuscher’s, at a point near Erhardt Gahn’s barn, and to end in a public road leading from Swissmount to Rathbun at a point near where said road, crosses West Creek in Benzinger township.

250. Debt by P. B. Derr, administrator of the estate of Levi B. Derr, deceased, against the Allentown School District. Plea, nil debet. The following are the facts of the case as they appeared on the trial before Albright, P. J. In 1874, the Allentown School District issued bonds of the. following tenor: $500.00. UNITED STATES OP AMERICA. No. 249.

<p>Error to the Court of Common Pleas of Lehigh county: Of January Term 1887, No. 271.</p> <p>This was an action of debt by Charles Norris to the use of Jacob R. Spangler against The Keystone Mutual Benefit Association on a policy of life insurance on the life of Louisa Rausch. Plea nil debet.</p> <p>The following are the facts of the case as they appeared on the trial before Albright, P. J.</p> <p>On August 6th, 1878, an application for life insurance was made to The Keystone Mutual Benefit Association, which purported to have been made by Louisa Rausch, of York, Pa. The Association, on the 29th of August, 1878, issued a policy, for $1,000, payable to Charles Norris, her son-in-law. On the 16th of September, 1878, Norris assigned all his right, title and interest in the policy to Dr. Jacob R. Spangler, of York, Pa. It was understood between Mrs. Rausch and Dr. Spangler, before the application was made, that it was to be taken out in the name of Charles Norris as the beneficiary, because Dr. Spangler was the medical examiner of the Association and could not take it in his own name, and that it was to be assigned by Norris to Spangler. All of the assessments and annual premiums were paid by Spangler, whose assignment was accepted by the Association, and it was entered on their books. Spangler admitted that he had no interest in the life of the assured. Norris admitted that he assigned the policy because it was understood that as Spangler was to keep it up if was for his benefit.</p> <p>The policy contains the following condition: “No suitor action at law, under this contract, shall lie against this Association, unless the same be brought within one year from and •after the death of the insured; and this policy is issued, and accepted, upon the express condition, that said period of time be the limit of the right of action at law under this contract.” Mrs. Rausch died in Baltimore, Md., October 28th, 1882. This suit was not brought until March 14th, 1885, two years and nearly five months after the date of the death of the insured. The plaintiff sought to avoid the legal effect of his failure to bring suit by setting up the following facts; On March 10th, 1883, Dr. J. R. Spangler, in his own name, brought suit upon this policy in the Common Pleas of York county. As Mrs. Rausch did not die in that county, and as the principal office of the Association was in Lehigh county, the Court of Common Pleas of York could not obtain jurisdiction of the person of the defendant, through a service made by the Sheriff of Lehigh county on the officers in Allentown. A conditional appearance was entered for the defendant, and the Court after a rule for that purpose, set aside the-service, holding that under the Act of April 24th, 1857, (P. L., 318) and its supplement of April 8th, 1868 (P. L. 20) the suit could not be entertained. Spangler sued out a writ of error to the Supreme Court, and the judgment of the Common Pleas was affirmed.</p> <p>The defendant requested the court to charge inter alia as follows:</p> <p>Fourth. — This suit, not having been brought within one year from and after the death of the insured, cannot be sustained, as that is the limit of the right of action at law under the contract.</p> <p>Answer. — Negatived. (Second assignment of error.)</p> <p>Fifth. According to the admission of Spangler the policy was taken out by him; all the joremiums and assessments were paid by him ; and that was done upon the strength of an understanding-between Spangler and Mrs. Rausch; this made Spangler, in law, the real beneficiary, and as he had no insurable interest in the life of the insured, the verdict must be for the defendant. Answer. Negatived. (Fifth assignment of error.)</p> <p>Sixth. According to the admissions of Spangler and Norris, made at the trial, this contract of insurance was, in its inception, a wagering policy, and therefore void, and the verdict must be for the defendant. Answer. Negatived. (Sixth assignment of error.)</p> <p>Seventh. If the jury believe that Spangler effected this insurance for himself; that he paid all the premiums and assessments ; that the policy was taken out with the understanding that it was to be for the benefit of Spangler, and to be assigned to him; then, he having shown no insurable interest in, the life of the insured, he would not be entitled to recover and the verdict must be for the defendant. Answer. Negatived. (Seventh assignment of error.)</p> <p>Verdict for the plaintiff in the sum of $1,236.46 and judgment thereon, whereupon the defendant took this writ and filed the assignments of error shown above.</p> <p>— The conditions of a policy of insurance are a part of the contract between the parties: Desilver v. Ins. Co., 38 Pa. St., 130; Kensington Bank v. Yerkes, 86 Pa. St., 227; Fire Association v. Williamson, 26 Pa. St., 196; Trask®. Ins. Co., 29 Pa. St,, 198; Ins. Co. v. Stauffer, 33 Pa. St., 397. They must be observed. If they are not waived, or if the party does not estop himself from insisting upon their observance, the courts have nothing to do but to ascertain the contract and enforce it as they find it. It is a familiar maxim. Modus et conventio vincunt legem.</p> <p>The parties to this contract limited the time within which an action shall be brought to “one year from and after the death of the insured.” Such a limitation is valid and binding upon the parties: Insurance Company v. Phoenix Oil Company, 31 Pa. St., 448.</p> <p>In Universal Ins. Co. v. Weiss, 106 Pa. St., 20, there was a limitation essentially similiar to the one in the case at bar. Mr. Justice Gordon, in the opinion, page 27, says: “Suit must have been brought within the time prescribed, and the neglect of this provision must necessarily, if a contract of this kind is worth anything, bar a right of action on the part of the assured.” To the same effect are Wait v. Ins Co., 1 W. N. C., 165 ; Schroeder v. Ins. Co. 2 Phila. R., 286 ; Warner v. Ins. Co. 37 Leg. Int., 475. Even a mistake in the policy as to the time when the risk commenced will not excuse a literal observance of the limitation within which suit must be brought: Ins. Co. v. Barr, 94 Pa. St., 345. See also Wood on Fire Ins., See. 434, et sea., and Wood on Limitations of Actions, Sec. 42, p. 80.</p> <p>The action brought on this policy in York county could not operate as an estoppel for the court there had no jurisdiction of the defendant: Riddeberger v. Hartford Ins. Co. 7 Wall, 386; Herman on Estoppel, 192 ; Campbell v. McCahau, 41 111., 45; Lessee of Walden v. Craig’s Heirs. 14 Pet., 154; Baxley v. Senate, 16 Pa. St., 241; Ripley v. iEtna Ins. Co., 30 N. Y. 137; Wilkinson v. National Fire Ins. Co., 72 N. Y., 500; Harris v. Dennis, 1 S. & R., 236; Todd’s Appeal, 24 Pa. St., 429.</p> <p>The policy was a wager policy and an action could not be maintained upon it: Shilling v. Ins. Co., 2.H. & N., 42; Pulcliet v. Ins. Co., 3 Yeates, 458; Gilbert v. Moore, 104 Pa. St., 74; Warnock v. Davis, 104 U. S., 775; Cammick v. Lewis, 15 Wall, 643; Corson’s Appeal, 3 Amerman, 438; Ruth v. Katterman, 2 Amerman, 251; Scott v. Dickson, 108 Pa.. St., 6 ; Conn. Mut. Life Ins. Co. v. Shaefer, 74 U. S., 457; N. Y. Mut. Life Ins. Co. v. Armstrong, 117 U. S., 591..</p> <p>— We submit in the first place that, this action being brought in the name of Norris to the use of Spangler, the question is to be tried as upon the title of Norris. When a legal plaintiff is on the record and proves a case in his own favor against the defendant, it is not necessary for the use plaintiff to prove his title from the legal plaintiff. If the defendant is indebted to the legal plaintiff it is of no concern that the sum recovered is to go to the use plaintiff. The judgment protects him and the parties entitled to the fund can intervene to protect their interests in it: Armstrong v. The City of Lancaster, 5 Watts, 68; Mongomery v. Cook, 6 Id., 238; Irish v. Johnson, 1 Jones, 483; Com’th v. Lightner, 9 W. & S., 117; Hamilton v. Brown, 6 Harris, 87; Crawford v. Stewart, 2 Wr., 34; Memphis & R. R. Co. v. Wilcox, 12 Id., 162; Berks Co. v. Levan, 5 Norris, 360.</p> <p>Norris had an insurable interest in Mrs. Rausch’s life. He was her son-in-law. This, of itself, might not have been sufficient to create such an interest. In fact this Court so said in Stover v. Liue, 16 W. N. C., 187.</p> <p>It was proven in this case that the insured was the debtor of the beneficiary; that he supported her, and she owed him for this ; that the family' relation existed between them, and that she took out tins policy to pay this debt or obligation. This question w'as fairly submitted to the jury, and found against the defendant: Keystone Mut. Benefit Ass’n v. Beaverson, 16 W. N. C., 158; May on Insurance, 107; Ins. Co. v. Shaw, 2 Casey, 189; Ins. Co. v. Kane, 31 P. F. S., 154; Scott v. Dickson, 12 Out., 6; Corson v. Garmer, 15 W. N. C., 451; Corson’s Appeal, 3 Amerman, 438.</p> <p>In Pennsylvania the Statute of Limitation, as to personal actions, provides, that if a judgment for plaintiff is reversed on error, or the judgment arrested and judgment given against the plaintiff, he take nothing by his plaint, a new action may be brought within a year thereafter. It has been held that by analogy the equity of the proviso must be extended far beyond its terms: Downing v. Lindsey, 2 Barr, 332; Given v. Albert, 5 W. & S., 330; McClury v. Fryer & Anderson, 3 Harris, 293; Wood on Lim. of Actions, 81-86; Wood on Fire Ins., 761.</p>

310. Assumpsit by Lewis S. Smith and John W. Rissel who survived Daniel Clapp, late trading .under the firm name of D. Clapp & Co., against John R. Gonsev. Plea non assumpsit, payment, set off, with leave. « ' • By agreement of the parties, trial by jury was waived, and the ease was reférred to Cummin, P. J., under the Act of April 22d, 1874. The following are the findings of law and of fact by the court: 1.

<p>1. The purchaser of land at a treasurer’s tax sale has an inchoate title the moment the property is knocked down to him, which becomes perfect with the payment of the purchase money. His rights are fixed by the sale, and the subsequent payment of the purchase money and the delivery of the deed relate back to it.</p> <p>2. In order to ascertain the relative rights of purchasers of land at a commissioner’s or treasurers tax sale by reason of priority of purchase, the law might regard fractions of a day; but where there is no evidence as to priority of purchase, the accidental priority of one-to another in the delivery of the deeds is unimportant.</p> <p>3. Fritz v. Brander, 28 P. F. S., 342, distinguished.</p> <p>4. When two tracts of land, embraced respectively in an elder and in a junior warrant and survey, are assessed as two distinct tracts for the same year as unseated, and are both sold at a treasurer’s tax sale to the county commissioners, the land embraced in the elder warrant and survey first, and the two tracts are subsequently sold at a commissioner’s tax sale on the same day to different purchasers, there being no evi- • denee as to which was the prior sale, the purchaser of the tract first sold to the commissioners will be entitled to the land embraced within the interference of the two surveys. The seniority of title is th§ test of right between the two purchasers.</p> <p>5. Hunter v. Albright, 5 W. & S., 423, followed.</p>

100. Trespass vi et armis, brought by E. A. Maxwell and Marlett Maxwell, her husband, in right of E. A. Maxwell, against Henry Baxter, sheriff of Tioga county, to recover damages sustained by her, by the sale of two horses, wagon, harness and blankets, alleged to belong to her, which the defendant seized, levied upon and sold, by virtue of a writ of fieri facias issued on a judgment against her husband.

115. Ejectment by W. B. Brickell and P. Y. Hite against C. R. Earley for the undivided two thirds of forty one lots of land situate in the townships of Benzinger and Fox in the county of Elk. Plea, not guilty. The following are the facts of the case as they appeared on the trial before Mayer, P. J.: The plaintiffs and defendant were tenants in common of a number of tracts of land.

<p>Appeal from the decree of the Court of Common Pleas of Lehigh county : Of July Term 1886, No. 110.</p> <p>Appeal by Emma E. Bauder from a decree of said court decreeing a divorce from the bonds of matrimony in a proceeding wherein lier husband, John J. Bauder, was the petitioner and she was the respondent.</p> <p>The petition alleged as the ground of divorce that the said Emma E. Bauder, his wife, on the 25th day of July, 1882, had willfully and maliciously deserted him, her husband, and had absented herself from his habitation without any just or reasonable cause and that she had persisted in the desertion for two years and upwards.</p> <p>Emma J. Bauder filed an answer denying these allegations and requesting an issue and in addition filed the following: The said Emma E. Bauder, in her own proper person, comes in court and says, that the said John J. Bauder ought not to have and maintain his action in this case, because the said John J. Bauder is now under sentence of the Court of Quarter Sessions of Lehigh county, under proceedings instituted by thé said Emma E. Bauder, for desertion, and in the said Court of Quarter Sessions at November sessions, 1882, and the cas-e having been fully heard in said court on the 13th day of N< - vember, 1882, the court made the following sentence and decree, to wit: That the said John J. Bauder pay to his wife, Emma E. Bauder, the sum of one dollar and fifty cents per week for the support of herself and child, and that he enter into a recognizance in the sum of one hundred dollars for the faithful performance of tsaid sentence. That on the same day the said John J. Bauder, with John Bauder, his surety, entered into' a recognizance as required by said sentence. That said decree is still in force and of record in said court. That the said John J. Bauder has regularly paid the weekly allowance and still doth.</p> <p>And of this she puts herself upon the country.</p> <p>On the trial before Albbight, P. J., the respondent offered in evidence the record of the said proceedings in desertion in the Court of Quarter Sessions, which were admitted under the objection of the petitioner.</p> <p>The respondent requested the court to instruct the jury inter alia as follows:</p> <p>“1. If the jury find that the sentence of the Court of Quarter Sessions of Lehigh county, in compliance of which the libellant in this suit entered bail for the payment of a weekly sum of money to Emma E. Bauder, the respondent, is still in full force, and that the libellant has still continued up to the present time to pay to said respondent in compliance of said sentence, the verdict of the jury must be in favor of the respondent.”</p> <p>“Answer. Negatived.” (Third assignment of error.)</p> <p>“2. If the jury find that there was no agreement entered" into between libellant and respondent to again live together as husband and wife, since order of the Court of Quarter Sessions of Lehigh count}', sentencing to pay a weekly sum to respondent, the verdict of the jury must be in favor of the respondent.” “Answer. Negatived.” (Fourth assignment of error.)</p> <p>“3. .The former sentence of the Court of Quarter Sessions of Lehigh county, and the entering of the recognizance of libellant to pay respondent a weekly sum so long as they shall live separate and apart, and if it is proven that said sentence and recognizance is still in force, it is a complete bar to the present action, and the verdict must be for the respondent.”</p> <p>“ Answer. Negatived.” (Fifth assignment of error.) ■</p> <p>The court instructed the jury in the general charge inter alia as follows:</p> <p>It appears that a controversy between these parties was heard in the Court of Quarter Sessions. A husband is bound to provide for his wife, and if he has children to provide for them.</p> <p>There is another law, which provides that if a husband neglects or refuses to support his wife or children, that a complaint may be made before a justice of the peace, and the case brought in a Court of Quarter Sessions, and there it may be heard before the judge, and if the court finds the complaint established, the' court may make an order that the accused party pay a certain sum for the support of his wife and children as long as the husband and wife live separate and apart, or as long as he fails to provide for his children. Such a proceeding was instituted by the wife, and on the 13th of November, 1882, the matter came before the judge of the criminal court of this county, and an order was then made that John J. Bauder pay $1.50 for the support of his wife and child as long as he lived separate and apart from her, and that he enter into bail in the sum of $100 to comply with that sentence, and in default of his entering bail should be committed to prison. .It appears he entered bail and thus becamé bound to pay the $1.50 per week, and I believe that sum has been paid from that time to this.</p> <p>The respondent takes the ground here that that is a bar to a proceeding for a divorce ; that that judgment of the criminal court is conclusive, and that the fact of that record ought to prevent the plaintiff from maintaining his case here to-day.</p> <p>Such is not the view of the court. If the libellant has shown a desertion by the wife as required by the Act of Assembly to entitle him to a divorce, he is entitled to a divorce notwithstanding that proceeding. But we have received that record in evidence, and you will have it before you as one of the circumstances in the case, showing how these parties came to be separated, and you can also receive it as persuasive evidence of things as they stood at that time, but not conclusive. It may have an effect upon your minds, but you are not to decide this case the way the judge of the court decided that case. The reason for my conclusion is this: The Act of Assembly provides that if certain facts are proved, the injured party shall have a divorce, and if either party demand it, there may be a ijury trial, and if the court were to hold to-day that the decision of the judge in the criminal court was conclusive, then an injured party who alleged desertion and who proved it, and proved that it had existed for two years, would have denied that right which the law gives him, to have a divorce.</p> <p>The libellant, John J. Bairder, in his testimony admitted that he left his wife in July, 1882. It seems they could not agree, and how they lived together and how they disagreed and how they separated has been told to you. Like in many cases of this kind there are two stories, and it is for you to say which story is true, if one or the other becomes material in the decision of the question submitted to you.</p> <p>As I said before, in November, 1882, the court sentenced libellant to pay a certain sum per week so long as he lived separate and apart from his wife.</p> <p>It is argued on one side that this proceeding is before us today because John J. Bauder wants to get rid of the pay of $1.50 to his wife, and on the other hand the wife resists the proceeding for divorce because she wants to continue to receive the $1.50 per week. That really has nothing to do with the case, excepting so far as you think that interest maj^ warp the judgment of the witnesses, and affect his or her credibility— that of the libellant or respondent. It is not a question whether he shall pay the $1.50 and she receive that much per week. The question is, has the respondent willfully and maliciously deserted libellant, and has she continued in that desertion for two years, counting to this daj'- ? If that is proved, your verdict ought to be in favor of the libellant. If not, the verdict should be against him and in favor of the wife.</p> <p>[The effect which the court has given to the proceeding in the criminal court is for certain reasons, which may not be out of place to state to you. If the husband had voluntarily agreed to live separate from his wife, and had since made no offer, and had agreed to pay her a certain sum per week, and had after-wards made no offer to live with her, we would say it was conclusive ; but here it was in pursuance of a decree of the court, which compelled him either to pay money or.give bail for its payment or go to prison. In the opinion of the court, if the court were to say that that was conclusive, then the Acts of Assembly, which provide that if desertion is proved for two years, the party is to have a divorce, would be negatived and of no effect. So you will take that action of the criminal court as one of the facts in the case and give it such effept as it may be entitled to, bearing in mind what the court has said upon the subject.] (First assignment of error.)</p> <p>Verdict for the petitioner: That Emma E. Bauder, the respondent, willfully and maliciously deserted and absented herself from the habitation of John J. Bauder, the libellant, without any just or reasonable cause, and such desertion has been ■persisted in for two years and upwards.</p> <p>A final decree of divorce from the bonds of matilmony was therefore entered, in which her own costs were imposed on the respondent (ninth assignment of error), and in which the respondent was allowed the sum of $30 for her expenses and counsel fees in making her defence (eighth assignment of error), the amount in the opinion of the respondent being too small.</p> <p>The following is the opinion of the court filed on discharging a rule for a new trial:</p> <p>It is urged that the order for maintenance made by the Court of Quarter Sessions was a bar to this action : Vanleer v. Van-leer, 1 H., 211, is relied on as authority; this is the main ground for the motion for a new trial.</p> <p>In that case the husband, who was libellant, had been proceeded against by the guardians of the poor for the support of his wife, which prosecution was settled by the husband giving a bond, .conditioned for the payment of a sum per week, for her support.</p> <p>The date of the bond is not given, but it seems to have been some time in July, 1884. The husband filed his libel on September 25th, 1846, alleging desertion by the wife and praying for a divorce from the bonds of matrimony. The answer denied the desertion by the wife, averred that the husband had separated himself from her without reasonable cause, and that said bond had been given as aforesaid. Upon the trial the bond was produced in evidence after the husband had given evidence of desertion by the wife. The court trying the case, said that the bond might be viewed as'an agreement to live separate and apart, or, if not considered in that light, the libellant was at least precluded by it from alleging that the desertion took place from the 6th of July, 1844; that in the face.of that bond, before the libellant could allege willful and malicious desertion on his wife’s part, he ought to have communicated to her that his house was open to her and that he was ready to supply her wants and conduct himself towards her as a husband ought to do; that if, after such notice, she still persisted, then would the desertion have become willful and malicious, because without any good cause. The court directed a verdict for the respondent.</p> <p>Upon writ of error the Supreme Court affirmed the action of the court below.</p> <p>That case is not at all decisive of the question here presented.</p> <p>At the trial the libellant showed that after the order in the Quarter Sessions had been made, he leased a house and repeatedly asked the respondent to come and live with him, and that she answered him evasively; in substance refused. She was living with her parents. The order in the sessions was made in November, 1882. During that and several months immediately following the offers were made.</p> <p>Here the husband-did not voluntarily agree to live separate and pay to the wife, as did the husband in the case cited. He was compelled to become bound in the recognizance or go to prison. At the trial the court admitted the record of what whs done in the Quarter Sessions in evidence, but declined to say that it was conclusive. The allegation of the libellant in substance was that after the date of the order she had deserted him. To prove it he showed his willingness and offers to receive her, and her refusal.</p> <p>I cannot see how the action of the criminal court, as a plea or as evidence, could be given the effect of a former judgment, 'and as such be taken to be conclusive in this issue. But that question is not before the court; the libellant to make out his case, did not go back beyond the period when he and his wife separated in J uly, 1882.</p> <p>I am still of the opinion that said question, respecting the effect of the record in the criminal court, was correctly decided. ■There is no other matter requiring attention. The jury, the tribunal to which respondent appealed, decided against her. There was sufficient evidence to warrant the verdict.</p> <p>Now, June 3d, 1885, the rule for a new trial is discharged; a decree of divorce will be made; it is ordered that libellant pay to respondent (under the rule pending) the sum of thirty dollars, including the fifteen dollars heretofore paid for respondent’s expenses and counsel fees. The said decree was accordingly made.</p> <p>The respondent thereupon took this appeal and filed the assignments of error as shown above.</p> <p>appellant.— We contended in the court below that the conviction and sentence in a criminal court was a bar to this libel — the bond being still in full force.</p> <p>The bond was a complete bar to a suit for desertion during its existence: Vanleer v. Vanleer, Harris, 211.</p> <p>The decree of the court between the same parties and on the .same subject matter, is an absolute bar until reversed or set aside: Marsh v. Pier, 4 R., 273.</p> <p>And this is so even if the former judgment were erroneous but not void: Hinds v. Willis, 13 S. & R., 213.</p> <p>A respondent cannot be guilty of desertion who merely declines the invitation of her husband, who had therefore (according to the language of the bond) “ separated himself from her without reasonable cause ” to return to his home after he had been adjudged guilty and was held in a bond for her separate support: vanleer v. Vanleer, supra; Nathans v. Nathans, 2 Phila., 393; Breinig v. Breinig, 2 C., 165; McClurg’s Appeal, 16 Sm, 373 ; Act Feb. 26th, 1817,_ Purdon, 512.</p> <p>There can be no desertion pending a suit by the husband : 1 Bishop on Marriage and Divorce, §§ 801 and 802.</p> <p>Schoote v. Schoote, 8 W. N. C., 236, is a case precisely like the case at bar. There the court held that a plea in bar, such as was filed in this 'case, setting forth the giving of a bond, was ground for dismissing the libel.</p> <p>The Missouri court, by Scott, J., stated the doctrine as follows: “Under color of maintaining a suit for a divorce, the husband would not be permitted to avoid the consequence of an abandonment and neglect to provide for his wife: ” Doyle v. Doyle, 26 Missouri, 545, 550.</p> <p>In Texas also, the doctrine has been laid down in the same way: Simons v. Simons, 13 Texas, 468.</p> <p>A husband cannot obtain a divorce from his wife on the ground of desertion, although she has separated herself from him for over two years, where it appears, that during that period, he remitted an allowance to her: Ralston’s Appeal, 12 Norris, 133.</p> <p>The decree in the criminal court being in full force and not having been impeached or reversed, is a bar.</p>

<p>1. A married woman entered into a written contract with a sewing machine company for a. sewing machine, in which it was agreed that the contract was a contract of renting only and not a sale conditioned or otherwise, and that no payment of money except the payment of the purchase money as provided — the payment of a nominal sum at her option after she had paid the stipulated rent for the time specified — should vest in her any title or prevent the company from reclaiming possession of the machine. Held, (a) That this contract was to all intents and purposes a bailment and not a sale; (5) That in default of the payment of the purchase money for the machine as provided in the contract, she had no title to it, and that she and her husband were both liable in an action of trover for their refusal to permit the company to take the machine.</p> <p>2. When the husband is present during the commission of a tort by the wife, whether himself actively partieipating in it or not, prima facie, the wrong is deemed his alone, but this may be rebutted and each of the two may be deemed in law the doer of the wrong the same as though they were unmarried.</p>

<p>1. In an action by a mutual insurance company against a policy holder to recover the amount of an assessment, if the company proves its claims, without showing so large an excess in the assessment as in itself satisfies the jury of fraud or gross mistake in making the assessment, it is entitled to recover unless the defendant adduces evidence of matter which defeats the action. The burden of showing fraud or misconduct or mistake is on the defendant when he relies upon that as a defence.</p> <p>2. It is competent for members of a mutual fire insurance company to contract as to the rule to be followed in making the assessments for the payments of losses and exjienses, and the company, through its directors, have no authority and will not be permitted to make assessments according to any other rule.</p> <p>3. The filing of an affidavit by the defendant, as is provided by the 56th section of the Act of May 1st, 1876, P. L., 53, precludes the plaintiff from proving its claims on an assessment by the certificate of the officers of the company, it is in such case required to show liabilities which make an assessment necessary and that it was made according to the terms of the charter and by-laws as if the statutory provision relative to tlie certificate had not been enacted.</p> <p>4. Where the ruling of the court on the trial of a ease on a question of law is free from error, the court will not be reversed if the reasons assigned for such ruling should be erroneous.</p>

135. This was an action of ejectment in the nature of an appeal from the decision of the Board of Property, under the provisions of the 11th section of the Act of April 3d, 1792, 3 Smith’s Laws, 74 (Purdon’s Digest, 1026, pi. 9), in which John B. Mattern and George Mattern were plaintiffs and Moses Thompson and John I. Thompson were defendants. The following are the facts of the case as they appeared on the trial before Simonton, P. J., of the 12th Judicial District.

<p>Appeal from the court of Common Pleas of Dauphin county: Of May Term 1883, No. 27.</p> <p>Appeal of the Pennsylvania Railroad Company from a decree of said court awarding an injunction restraining said company from constructing or maintaining a railroad track, siding or other structure upon or along Brown street in the borough of Middletown, Pa., on hearing a bill in equity filed October 23d, 1882, wherein said company'was defendant and George E. Mish and Mary E. Mish, his wife, in right of the said Mary E. and Kirk Few, Jacob H. Blitz and Anna M., his wife, in right of the said Anna M. and John W. Few, children and heirs of Kirk Few, deceased, were plaintiffs.</p> <p>The facts sufficiently appear in the opinion of the court below, Simonton, P. J., and in the report of the Master.</p> <p>The bill avers that complainants are owners of real estate fronting on a public street known as Brown street, in the borough of Middletown, in this count}r. That respondents are about to construct a railroad track or siding on and along the bed of said street, from the main line of their road in front of and along the whole length of complainants’ real estate on said street. The respondents have no legal right so to do, and that the construction and use of said track will be greatly detrimental to complainants and others, complainants’ “ property will be injured and greatly impaired in value by reason of the construction of said railway, and the passing and repassing of cars upon said track.” Complainants, therefore, pray for an injunction to restrain the construction and maintaining of said track upon said public highway.</p> <p>A temporary injunction was granted, which on hearing was dissolved.</p> <p>Respondents afterwards answered, admitting that they have “ entered, appropriated and occupied Brown street, as complained in said bill,” but averring that they had done so in the lawful exercise of the rights of eminent domain,' conférred upon them by their charter and its several supplements, and especially by a “ further supplement to said Act, approved April 10, 1867,” (P. L., 993). They also claim all the rights and privileges conferred upon the Harrisburg, Portsmouth, Mount Joy & Lancaster Railroad, by the Act approved May 7th, 1841 (P. L., 369), they being now the lessees of the railroad of said company. They also deny that complainants are injured by the construction and use of said track, or that the value of their property is impaired thereby. They also, in effect, demur to the bill, on the ground of want of jurisdiction, but assign no reason therefor.</p> <p>The parties agreed upon an Examiner, .who was duly appointed, and took testimony on the one issue of fact, viz., whether the property of complainants was injured and impaired in value by the construction of said track, which had then been substantially completed, and its use by respondents.</p> <p>On the coming in of this testimony the cause was heard by us on bill, answer and evidence.</p> <p>The evidence shows that Brown street is about thirty feet wide, and the lots of complainants ea'ch front thereon about two hundred feet.</p> <p>There is nothing in the bill to show that the lots are built upon even, and of course nothing showing the kind of buildings, nor the uses to which they are adapted or applied.</p> <p>The evidence, however, shows that complainants have their private residences thereon, and that the value of their respective properties for the purposes of residence, would be much impaired, and they are injured and incommoded in the enjoyment of them for this purpose. If used for manufacturing purposes, the railroad track might be an advantage. No evidence was given to show that there was or was not a demand for these properties for manufacturing purposes. Nor do we think it would have been material. The evidence shows, also, that complainants .suffer special injury and damage, because of the construction and use of this track, not common to the public, who simply travel along said street. One of the complainants is a practicing physician, and convenience of access to his office, and the safetj»- of persons calling upon him there, and of their horses,, is lessened.</p> <p>The testimony further shows that the track in question is not, properly speaking, a siding, but rather a short branch extending from respondent’s main line to certain manufactories situated on Brown, and perhaps other streets.</p> <p>If respondents have the legal right to enter upon, appropriate and occupy Brown street, as claimed by them in their answer, complainants’ bill cannot be sustained. The legislature have ample power to authorize a railroad company to appropriate a public street for the purpose of laying their track thereon (Philadelphia & Trenton Railroad Company’s case, 6 Wh., 25; Danville, Hazleton & Wilkesbarre Railroad Company v. Commonwealth, 28 P. E. S., 29). But without such authority, given expressly or by necessary implication, such a use of a public street constitutes a public nuisance (Harvey v. Lackawanna & Bloomsburg Railroad Company, 11 Wr., 428; Commonwealth v. Erie & North-East Railroad Company, 3 Casey, 339). And if given by implication, it must be a necessary implication, because it cannot be lightly presumed that the legislature intended to divert land, already dedicated to one public use, to another and different use.</p> <p>We must, therefore, carefully examine the legislation pleaded by respondents, to find whether.it does or does not confer the authority claimed. It is not seriously contended that the charter of the Company respondents, nor any of its supplements, which relate to its main line between Harrisburg and Pittsburgh, have any bearing on the question. Nor can we see that the Act of May 7, 1841, relating to the Marietta, Bainbridge, Falmouth & Portsmouth Road Company, set up in the answer, affects the case in any way.</p> <p>The authority claimed, if found at-all, in any of the legislation relied upon in the answer or on the argument must be found in the “Act entitled a further supplement to the Act incorporating the Pennsylvania Railroad Company, approved April 10, 1867 (P. L., 993).</p> <p>This Act authorizes respondents “ as they may deem necessary, to construct and use along, adjoining or contiguous to their lines of railroads, or the lines of railroads now owned or leased, or that may hereafter be owned or leased by them, additional tracks, sidings, depots, turnouts, water-ways, workshops and other appurtenances requisite and needful, etc.,” and provides that “ for all or any of said purposes the Company shall and may enter upon, acquire, take and appropriate such lands, tenements and property along, adjoining or contiguous to said railroad or elsewhere, that they may deem necessary, etc.,” provided that when the Company cannot agree with the owner or owners of such lands, tenements and property, as aforesaid upon the price of the same, or the compensation for the damage done, or likely to be done or sustained, then the same shall be appropriated and the damages ascertained and determined” in the manner provided by their charter and its supplements.</p> <p>If this Act authorizes respondents to appropriate or use Brown street for the’purpose of constructing and maintaining a railroad track thereon, it also authorizes them to take and appropriate it for the building of a depot or workshop.</p> <p>The authority is the same to “enter upon, acquire, take and appropriate such lands, tenements and property as they may deem necessary, for all or any of said purposes.” There is certainly no implied authority to take the street for such purposes. Again, provision is made in the Act for the purchase of the property taken from the owners, or for compensation to be ascertained by legal proceedings. This could not apply to streets. Manifestly by “lands, tenements and property,” the legislature intended to designate what belonged to private owners.</p> <p>Such is the construction given to a like provision in a charter by the Supreme Court in Cake v. Philadelphia & Erie Railroad Company, 6 Norris, 307, which is, we think, directly applicable here. And it is there pointed out by Mr. Justice Trunkby that if streets are included within the authority so are “ county and city grounds and buildings and everything else which the company may deem it expedient to take.” This case is cited as authority in the Pennsylvania Company’s Appeal (12 Norris, 150). For all these reasons we are of the opinion that the Act relied upon does not give respondents the right to take or use for any of the purposes mentioned the street in question.</p> <p>As we have already seen the track of respondents, if laid on the street without authority of law, is a public nuisance. Can complainants sustain this suit for an injunction against it? The well-settled rule seems to be that individuals who have sustained, or will sustain special damage, as we have found complainants have and will in this case, may have a remedy by injunction, in a proper case, notwithstanding the right of the Attorney General to sue on behalf of the public (Bispham’s Equity, 395;'Kerr on Injunctions, 334-5; Mississippi & Missouri Railroad Company v. Ward, 2 Black, 485).</p> <p>The case of a corporation acting in excess of its corporate authority, is one which calls especially for the intervention of a Court of Equity, and the remedy by injunction (Bispham on Eq., 402; Kerr on Inj., 241-2 ancl 296-7; Sanford v. Railroad Company, 12 H., 378). . •</p> <p>There is no allegation in the bill in this case that the damage suffered and to be suffered is irreparable, except by injunction, as there ought to have been if complainants so believed it. But the testimony shows that because of its continuing character and its nature, and the difficulty of estimating it, except by conjecture, even if it could be recovered at all at law, it is such damage as is comprehended in the term iri’eparable (Commonwealth v. Pittsburg & Connellsville Railroad Company, 12 H., 159). In Duncan v. Pennsylvania Railroad Company (18 Norris, 435), the question of jurisdiction does not appear to have been raised.</p> <p>We are of opinion that the complainants are entitled to an injunction restraining defendants, their agents, servants and workmen, from constructing or maintaining a railroad track, siding or other structure upon or along said street. ■ The following decree was thereupon entered. And now to wit: March 12, 1883, this cause came on to be heard at this term, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit: That the defendants, the Pennsylvania Railroad Company, their agents, servants and workmen, be, and they are hereby enjoined and restrained from constructing or maintaining a railroad track, siding or other structure, upon or along Brown street, in the borough of Middletown, and so far as the same has been constructed since the granting of the preliminary injunction, they are required to remove said track from the bed of said street, and that the defendants pay the costs of this proceeding.</p> <p>The defendant thereupon took this appeal and filed the following assignments of error.</p> <p>First. — The plaintiffs having neither alleged in their bill, nor proved, any special damage or irreparable injury, the court below erred in holding that they had such standing as to entitle them to remedy by injunction.</p> <p>Second. — The court below erred also in holding and decreeing that the defendant had not the power under its charter and supplements to appropriate the street as it did.</p> <p>Third. — Tim court erred also in decreeing the final injunction against the defendant.</p> <p>'Fourth. — The court erred also in so shaping the decree as to require the defendant to take up the siding and tracks as laid, there being no prayer for such a decree in the plaintiffs’ bill.</p> <p>Fifth. — The court erred in stating the complainants have sustained irreparable injury, there being no such allegation in the bill.</p> <p>When the case was called for argument in the Supreme Court, June 1st, 1883, it -was referred to A. B. Sharpe, Esq., as Master, “ to find the facts from the evidence taken by the Examiner, and report the same to this court at the next term, together with his conclusions of law.”</p> <p>. "He reported, inter alia, as follows: That Brown street is a public highway in the borough of Middletown, and has been for a quarter of a century or more; that it is a short street, sixty j'eet wide, running from the railroad to the canal; and crosses Union street, which is the main street of that borough. The track or siding, which is a continuation of the siding that existed before, extends along Brown street a distance of 1000 feet, from the railroad to Canal street, and to within 150 feet of the canal, where the street terminates. It relieves the crossing at Union street from hindrances and delays, facilitates business and transfers it to a handier and safer point. There is but one track, which is five feet to the outside of both rails, and it is laid, not in the center of the street^ but nearer by about one half to the side of the street on which the property of the,Few heirs fronts, than to that on which the property of Dr. Mish fronts, which is just opposite the other. The track follows the grade of the street, is well laid, and is intended to be finished so that the top of the rail shall be no more than two inches above the surface of the street. The borough authorities consented to the laying of the track as it now is, with the understanding that the company would grade part of the street and bring it up to the level of the grade of the street as established, and this they were doing when the evidence was taken. This street never was in as good condition as it was then (i. e., when witnesses testified), so far as the work was finished. The Few and Mish. properties are private residences. The Raymond & Campbell property is a foundry, is along the side of the track, and is close to the Few and Mish properties. There are other business establishments on the north side of the railroad, on Brown street and vicinity, that derive advantage from the use of this siding. Snavely’s flour and feed store, Kendig & Lauman, lumbermen, Landis’s grist mill, S.amuel Singer, cabinet maker, the Middletown Furniture and Manufacturing Company, Coolbaugh & Hendrickson, lumbermen, Rife Brothers’ steam tannery and tobacco warehouse, are instances.</p> <p>He also finds that the properties of complainants’ front on Brown street a distance of 200 feet each and on Union street about 50 feet. That they are private residences. That of Dr. Mish is occupied by him, both as a dwelling and an office. He has hitching posts along his property oh Brown street and a side entrance to his office on it, where parties coming for him hitch their horses. He is a practicing physician, and has country patients, who are afraid to tie their horses on Brown street for feat .of the engines frightening them. He cannot turn a vehicle in front of his office without backing on the pavement, since the track was laid down. When cars are being unloaded on Brown street, between Union street and the alley, he cannot take his usual course from his stable, but has to go around a block. His business as a physician is interfered with by reason of the siding laid down on Brown street. But it is not 'a fact that his property or that of any of the complainants has been injured by reason of the construction of this siding. On the contrary, Daniel Peters, a witness called before the Examiner, states, “ About a year ago the Few heirs offered to sell me their property for $4,500,” and C. Y. Coolbaugh, “the Few heirs asked me $5,000 for their property since the location of this siding;” and the bulk of the evidence, when carefully considered, fails to establish any intrinsic decrease in the value of the -property of complainants, since the location and construction of this siding.</p> <p>He reported the following conclusions of law:</p> <p>1. That the Act of April 10th, 1867, legalizes the construction of this road on Brown street.</p> <p>2. That the general railroad law, passed Feb. 19th, 1849, authorizes the Penn’a Railroad Company to build this road on a public highway.</p> <p>3. That the 8th section of the 16th article of the constitution of 1874 does not make the Penn’a Railroad Company liable for consequential damages.</p> <p>4. That complainants, if entitled to damages, have not made out such a case as would warrant an injunction.</p> <p>Exceptions were filed by the plaintiffs to the Master’s findings of fact, to his right to report conclusions of law and to his conclusions of law.</p> <p>To his finding, and recommending, that the bill of complainants should be dismissed with costs.</p> <p>. The case was argued at Harrisburg at May Term, 1884; a re-argument was subsequently ordered, when it was finally argued May 31st, 1886.</p> <p>— Nothing but very clear error will justify an appellate court in setting aside a Master’s finding of the facts: Burton’s Apjpeal, 12 Norris, 214.</p> <p>On the record and the facts the plaintiffs had no such standing as to entitle them to remedy by injunction. The very remedy sought here is never granted unless there was a clear right which was violated, resulting in irreparable injury ; and where there is no adequate remedy at law: Hagner v. Hayber.ger, 7 S. R., 104; approved in Clark’s Appeal, supra; Gray v. O. & Pa. R. R. Co., 1 Grant, 412; Richard’s Appeal, 7 Smith, 105: Hil. on Inj.,'271; Adams Eq., 485; Fonb. Eq., 51; 2 Stoiy’s Eq., § 925, et seq.</p> <p>An injunction against such an erection will be refused, upon the principle that private advantage must yield to public benefit: Daughtry v. Warren, 13 Reporter, 667; Wells v. R. R. Co., 47 Maine, 345.</p> <p>That the complainants have no standing to sustain an injunction. See Snyder v. P. R. R. Co., 5 Smith, 340; Duncan v. Same, 14 Norris, 435; Heller v. A. T. & S. F. R. R. Co., 7 Am. and Eng. R. R. Cases, 636; Clark v. Bridge Co., 5 Wr.', 161; Getz’s Appeal, 10 W. N. C., 453.</p> <p>A court of equity will not enjoin an offence against the public at the instance of an individual, unless he suffers private, direct, and material damage beyond the public at large, as well as damage otherwise irreparable. Mere dimunition of the value of the property by the nuisance, without irreparable mischief, will not furnish any foundation for equitable relief: R. R. Co. v. Brudden, 20 N. J. Eq., 530.</p> <p>One who does not own the fee of a public street over which a railroad is about to be built, but is only an abutting proprietor, must show a special damage to himself before he can invoke the aid of a court of equity: Osborne v. R. R. Co., 5 Blatch., C. C., 366.</p> <p>Whether the act complained of amounts to a public or private nuisance, the fact must be clearly proved by satisfactory evidence. If the evidence is conflicting, the injunction wiil not be granted: DuMesnil v. Dupont, 18 B. Mon., 800; Commonwealth v. Long, 1 Par. Eq., 143; Silliman v. Hudson River Bridge Co., 5 Wall., 403.</p> <p>Courts of equity will not interfere where the erections are for public convenience: Harrison v. Brooks, 20 Ga., 537; Barnes v. Calhoun, 2 Ire. Ch., 199.</p> <p>A public grievance furnishes no ground for a suit by a private individual. That remedy is applicable only to special injuries in violation of private rights, and individuals are not authorized to redress private grievances at their own suit: R. R. Co. v. Stump, 8 G. & J., 479.</p> <p>A party cannot vindicate others’ rights by process in his own name, nor employ civil process to punish wrongs to the public.</p> <p>When equity intervenes to restrain acts prejudicial to the community, it must be by bill by the Attorney General: Spar-hawk v. Pass. R. R. Co., 4 Smith, 401. And to the same effect, Coal Co. v. Graham, 13 Smith, 290.</p> <p>A court of equity will not enjoin the obstruction of a public street at the suit of a private -citizen, who shows no special damages: Cox’s Appeal, 10 W. N. C., 552; 11 Id., 571. ~</p> <p>The Act of 10th of April, 1867, expressly authorizes the defendants, from time to time, as they may deem necessary, to construct and use, along, adjoining or contiguous to their lines of railroad, or the line of railroads now owned, or leased, or that may hereafter be owned, or leased, by them, additional tracks, sidings, depots, turnouts, waterways, workshops and other appurtenances requisite and needful for the prosecution of their business, and for the accommodation and transportation of the trade and traffic over and upon the said railroads. .....And the Act further authorizes the company to enter upon and take any “ lands ” necessary for all said purposes. It is difficult to see how the Act could have been broader. Both the discretion of the company and its power to take are full and clear. “ Lands, tenements and property,” are words well known in the law, and when used are intended to include everything. “ Land ” includes not only the face of the earth, but everything under or over it. Sec J udge Gibson, in Brocket! v. Ohio & Penn’a R. R. Co., 2 Harris, p. 241. That “ land ” should be any the less land because it had an easement upon it, is incomprehensible and incredible: R. R. Co. v. Williams, 4 P. F. Smith, 108.</p> <p>The Acts of 1832,1834 and 1869, plainly show a legislative intent to confer all necessary powers claimed here, even more fully than the general railroad law of 1849.</p> <p>A railroad company may use a street or highway, when authorized by its charter, expressly or inferentially.</p> <p>“Land in railroad charters has its common law and technical meaning, comprehending all structures upon it:” Agnew, Justice, in C. & P. R. R. Co. v. Speer, supra.</p> <p>“ In the construction of a statute granting privileges to individuals, where there is ambiguity or inconsistenc}’- in the language of the grant, if one construction bears against the public trade and convenience, and another abridges the grant, that must be adopted which favors the public convenience and trade: ” Stormfeltz v. Turnpike Co., 1 Harris, 555.</p> <p>— That the legislature may authorize a railroad company to construct their road tipon and along a public street, is not questioned. But the power to do so must appear in express terms, or by clear and necessary implication. All powers not given in this direct and unmistakable manner are withheld: Commonwealth v. Erie & North-East Railroad Company, 3 Casey, 339.</p> <p>The principle decided in this case is recognized and affirmed in Pennsylvania Railroad Company’s Appeal, 12 Norris, 150. It is there held that in favor of a right of a corporation to appropriate a public franchise, there is no implication, unless it arises from a necessity so absolute that without it the grant itself will be defeated. It must also be a necessity thát arises from the very nature of things, over which the corporation has no control, and not a necessity created by itself, for its own convenience, or for the sake of economy.</p> <p>That the Pennsylvania Railroad Company has the right, under their charter and its supplements, to occupy the streets and alleys of towns and cities, along the route of their main line from Harrisburg to Pittsburg, may be regarded as settled by the case of The Mayor, etc., of Pittsburg v. The Pennsylvania Railroad Company, 12 Wright, 355. But the decision in this case was the result of an examination of the various Acts of Assembly relating to this road, two of which by clear implication give the right to use the streets, lanes and alleys in any town, borough, or city through which the road may pass. These two Acts, one of them passed March 27th, 1818 (P. L., p. 275), and the other April 12th, 1851 (P. L., p. 518), are both referred to in the opinion of Judge Read, and are amply sufficient to sustain the ruling of the court. This case, however, can have no bearing upon the question involved in the present controversy, as its solution depends upon a very different statute.</p> <p>But so far as the pending case is concerned it matters very little on which of the grounds indicated in the lower court the decision is made to stand. The borough of Middletown is situated neither upon the main line of the Pennsylvania Railroad, nor upon the road running from Columbia to Philadelphia, but upon the line of a railroad held by appellants, not under their charter but simply as lessees. They stand, therefore, precisely in the shoes of the Harrisburg, Portsmouth, Mt. Joy and Lancaster Railroad Company, and unless additional powers are given by subsequent legislation, can exercise only' those conferred upon their lessors. We look in vain through the charter of the former company, and its supplements, for any grant of power to occupy the bed of a public highway; and the appellants themselves do not claim to have discovered any. They set up, therefore, the Act of April 10th, 1867, and ailege that it invests them with full authority to build this branch road or siding along the bed of Brown street. If it does, our bill must be dismissed; if not, the injunction must stand. We méefc them on this ground, and contend that the Act of 1867 will bear no such construction.</p> <p>It is not denied that the Pennsylvania Railroad Company have authority, under the Act of 1867, to construct sidings and the other works mentioned in the Act, along the line of their leased roads. But they must do it by either purchasing or condemning private property, and, like other honest people, paying for it. It may be very convenient for them to build feeders for their mainline along public highways, and. thus save money whilst they trample upon the rights of citizens, but they do it without color of law. Says Judge Gordon, in this same Company’s Appeal, 12 Norris, 150, already cited: “We thus discover that this necessity by which the unlawful acts of this company appellant are sought to be excused is one of its own making — a matter of economy. It 'is cheaper to use Dock street and the appellee’s franchise than to bujr the property above mentioned. A defence more weak, or one more barren of equity could scarcely be imagined.” These words so full of meaning, may well close this part of our argument.</p> <p>But if our right to raise the question of the legal authority of the Pennsylvania Railroad Company to occupy Brown street were at all doubtful, under the cases already cited, the Act of June 19th, 1871 (P. L., p. 1360), entitled “ An Act relating to legal proceedings by or against corporations,” removes all doubt. By that Act courts of equity are expressly authorized to inquire, at the instance of private parties, whether corporations have the legal right to do the acts by which it is alleged complainants are injured, and to enjoin the corporation if it is exceeding its power. This is probably simply an affirmance of a right already existing, but it makes the matter perfectly clear. In Western Peun’a R. R. Co’s Appeal, 8 Outer-bridge, 399, Judge Gordon says, in commenting upon this Statute: “ The powers of this, as of every other corporation, must be found in its charter, and under the provisions of the Act of 1871, the plaintiff has the undoubted right to call upon the defendant to show by its charter that it has the power to do what it proposes to do.”</p>

<p>Error to the Court of Common Pleas of Dauphin county: Of May Term 1886.</p> <p>Covenant by Jacob Rife against The Lebanon Mutual Insurance Company of Jonestown, Pa., upon a policy of fire insurance dated April 3d, 1871, for twenty-four hundred dollars, upon his dwelling house $1,000, upon his barn $1,000, and upon his corn house $400. Pleas. Covenants performed «¿«gw hoc with leave, etc.</p> <p>The policy was in the perpétual class, mutual department, and was in force on March 12th, 1883, on which date the barn and corn house were totally destroyed by fire. Due notice of the fire was given the defendant, and proofs of loss were made as required by the policy. Section 9 of the policy providing against increase of risk without notice to the company fully appear in the opinion of the Supreme Court.' No change in the buildings or in their use and occupation 'was made, but there was a change made in the premises about ten years after the', date of the policy. This change consisted in a lateral railroad being constructed over it upon which a locomotive engine was used to draw cars from the furnace situate on the adjoining premises to the Pennsylvania railroad. Notice of the making of the railroad was not given to the defendant.</p> <p>On the trial the plaintiff offered to prove that the defendant had, after the making of another lateral railroad, to be used in the same way as this one, running in close proximity to certain property insured by said company, with full knowledge of the existence of such railroad, renewed the policy or policies at the same or a less rate of insurance than had been charged before said railroad was- made, for the purpose of showing from the acts of the company, that it was not considered that the risk was thereby increased. This offer the court refused and excluded the evidence. (First assignment of error.)</p> <p>The court charged the jury, inter alia, as follows:</p> <p>It was also said that Mr. Rife should have knowledge of the increased risk. Now this is not the law under this contract, whatever it may be under contracts which distinctly provide that he shall have knowledge of the increased risk,— whoever it may concern under such contracts that is not the case under this contract. (Second assignment of error.). . . . So if you find that the natural and probable consequences were that the danger of loss by fire was increased, he must be taken to have known its natural and probable consequences. (Third assignment of error.)</p> <p>********</p> <p>If the jury believe there was an increase of risk in making the railroad, the law presumed that the plaintiff had knowledge that the rate of insurance was also thereby increased. (Fourth assignment of error.)</p> <p>Verdict for the defendant and judgment thereon, whereupon the plaintiff took this writ and filed the above assignments of error.</p> <p>— The question for the jury was not whether the risk was increased so as to change the rate of insurance in the opinion of the jury, but did the plaintiff know that the rate of insurance was increased by the change. This case is decided by Lebanon Mutual Insurance Co. v. Losch, 42 Leg. Int., 416.</p>

<p>1. A married woman, received government bonds, as a trust fund, to the interest of which she was entitled during her life, the same to be returned at her death. She converted them into money, and gave a receipt for the same, in which her husband joined, acknowledging the conversion of the bonds, and promising that the proceeds of the same should be returned at her death. Upon the distribution of her estate, it was held (a), that the conversion of the bonds into money, and the promise of herself and husband to return the same, did not affect her obligation or liability so to do. (6) That she was guilty of a wrongful conversion of the trust fund, and that her estate was liable for the same, (c) That the mere fact of her husband joining with her in said acknowledgment and promise to return the proceeds of the bonds, did not raise a presumption of his presence at the time the wife committed the tort, or that he directed her so to do.</p> <p>2. When a tort is committed by the wife, she is personally liable, unless her husband was both personally present and directed the doing of it at the time. Iiis presence furnishes evidence and raises the presumption of his direction; but it is not conclusive, and the truth may be established by competent evidence.</p>

<p>Error to the Court of Common Pleas of Delatvare county: Of January Term 1887, No. 92.</p> <p>This was a feigned issue under the following order of the court:</p> <p>And now to wit, May 5th, 1884, the court, upon due consideration, directs that a feigned issue be framed in the above case, upon a wager in the usual form, in which the said Joseph M. Cook and W.'W. L. Cook, trading as J. M. Cook & Co., shall be plaintiffs, and the said Benjamin F. Folsom shall be defendant, to determine whether the centrifugals, pansi tools, machinery, fixtures and all other goods and chattels, and property of any and every kind and description, to prevent the removal of which the above writ of estrepement issued, belonged to the said J. M. Cook & Co., or Charles R. Cook, or whether the said J. M. Cook & Co., or Charles R. Cook, at the time of the issuing of the said writ, could lawfully remove the goods and chattels aforesaid from the premises, demised to them by the said Benjamin F. Folsom.</p> <p>The facts of the case as they appeared on the trial were as follows:</p> <p>In the month of February, 1881, Benjamin F. Folsom, the defendant below, was the owner of a sugar house in the city of Chester. The house was .fitted up with machinery, piping, vessels, etc., adapted to the manufacture of sugar from cornmeal. William L. Cook, one of the plaintiffs below, applied to Mr. Folsom at that time for a lease of the sugar house, saying that he wanted it for the purpose of manufacturing sugar from starch; that they expected they would not go into the business very largely, but that they would want the whole house, and that the business would be somewhat experimental. Mr. Folsom proposed to rent them the house, with certain wharf privileges and some appurtenant ground, for an annual rental of $4,000. To this Mr. Cook objected, and upon stating that they expected to manufacture about two hundred barrels per week, Mr. Folsom proposed to lease the house for $8,000 per annum, with a proportionately increased rent, regulated by the excess of product over two hundred barrels per week.</p> <p>On the 29th of March, 1881, W. Marr who adapted the mill to manufacture sugar under his process made the following written memorandum of what he testifies was the verbal lease between the parties.</p> <p>Statement of William Marr. Dated March 29th, 1881. Memr. The following are the terms and conditions upon which Mr. Folsom agreed to rent the Chester refinery:</p> <p>The rent was to commence on the first day of March, 1881, and to be paid monthly, and the tenancy was to be for one year from the first day of March, 1881. The rent was to be three thousand dollars for the year-, and upon the basis that the quantity of goods to be manufactured would be two hundred barrels per week, and for any excess in quantity over and above two hundred barrels per week for any one month, a proportionate increase of rent was to be paid for said month. That the tenant was to have the use of the whole of the sugar house building with the boilers, machinery, pumps, fixtures, materials, in fact all there was about the place relating to a sugar house or glucose factory, with the right to rearrange any portion or articles to suit his business with the proviso that any removals that might be made should be reinstated if desired by the landlord. The tenant was also to have the use of the ground around the buildings with the use in common of the landing wharf; but not the use of covered inclosed sheds used for bonded stores. As a ground for-the foregoing terms and conditions, representations were made by the agent of the landlord and confirmed by the landlord that at the time of the former parties ceasing operations the boilers, machinery and other appliances were in good working order, and that proper care had been taken of them, and they were then in good working order, and required only cleaning up and a small outlay, amounting to about three hundred dollars, to set the whole again in operation.</p> <p>After some efforts on the part of Mr. Folsom to have Mr. W. L. Cook join him in having a written lease prepared, Mr. W. L. Cook came to his office shortly before the 26th of April and proposed to Mr. Folsom to make the annual rental $4,000 iustead-of $3,000, leaving out any pro rata increase, and that on account of the great expense incurred and to be incurred in the adaption of the house for their purpose, the rent should commence on May 1st, instead of March 1st. This proposition was accepted by Mr. Folsom, and on the 27th of April Mr. Folsom had the following written lease prepared.</p> <p>Lease B. F. Folsom to J. M. Cook & Co.:</p> <p>This article in writing witnesseth that Benjamin F. Folsom, of the city of. Philadelphia and state of Pennsylvania, hereby leases and demises to Joseph M. Cook and W. W. L. Cook, trading as Joseph M. Cook & Co., of the city of Baltimore, and state of Maryland, all that certain sugar house in the city of Chester, and state of Pennsylvania, on the Delaware river at the east end of Market street, with the engines, pumps, boilers, tanks, machinery and fixtures therein, and the privilege of so much ground immediately around and adjacent to the said sugar house as may be necessary for the reception and storage of the coal used in the business to be conducted by the said lessees in the said business, and for a passage way for carts, wagons, horses and drays; also the privilege of allowing vessels to come to and lie at the wharf immediately in front of the said sugar house for the delivery and receipt of goods and merchandise which they may use or manufacture in their business, for the term of fourteen (14) months from the first day of March, A. D. 1881, at the annual rent of four thousand (4000) dollars, payable quarterly, for one year, and the remainder at the end of said term. Out of the first quarter’s rent the said lessees shall be allowed to retain the sum of six hundred and sixty-six dollars and sixty-seven cents ($666.67)'in consideration of the repairs, additions, alterations and improvements they have made or may make to the said building and machinery, and these repairs, additions, alterations and improvements shall remain at the expiration of this lease as the property of the said lessor, but should the said lessor give to the said lessees ten (10) days notice before the termination of this lease of his desire to-have the machinery, fixtures, pipes, etc., restored to the position they o'ccupied at the beginning of this lease, then the said lessees shall make such restoration at their own proper cost and expense; at any event, however, whether restored to their position or not, all these additions, repairs and improvements shall be the property of the lessor without any liability on his part to account to the lessees therefor. The said lessees on their paid agree to pay the said rent in the manner aforesaid and in every particular carry out and perform their part of this agreement. And they promise and agree that they will not conduct in or upon the said demised premises any business other than the manufacture and sale of sugars and syrups, and that at the end of their term will yield up and surrender all the said demised premises with the machinery, fixtures and all the appurtenances as aforesaid in good condition and running order, and that they will pay all bills for. repairs and for such water and gas as they may use, so that at the end of this lease the said demised premises shall not be burdened or incumbered by any act or omission of them, the said lessees.</p> <p>In witness whereof the said parties hereto have hereunto set their hands this day of A. D. 1881.</p> <p>This was delivered to W. L. Cook on the same day, by Mr. Folsom, at the Girard House in Philadelphia for the purpose of having it executed by Cook & Co. Cook testified that he did not read the paper at that time, that before he read it he sent the following letter:</p> <p>Baltimore, May 7th, 1881.</p> <p>Mr. B. F. Folsom, Phila.: — Dear Sir: My arrangement when I last saw you was for me to see my brother on my return to Balto. Saturday as he was to come up Monday, and send it back with him. He took a notion to come Saturday instead, and we passed each other on the road, and I have been intending to come over each day since, but the 1st of the week was too busy, and latter part been very unwell. I intend coming over Tuesday or Wednesday next, and if you can meet me at Chester then, telegraph me to that effect, if not, then please wire me when you can. However there is now no issue between us, and when rent is due you can get check for amt. Very respectfully,</p> <p>W. W. L. Cook.</p> <p>That after he read the lease he wrote to Mr. Folsom and. properly addressed the letter to Mr. Folsom and mailed it to him, in which he stated he declined to execute the lease.</p> <p>This letter Mr. Folsom testified he never received.</p> <p>Cook & Co. paid the rent for two quarters maturing August 1st and November 1st, at the rate of 14,000 per year.</p> <p>Cook & Co., the tenants, in the latter part of December commenced to remove the additions to the machinery which they had put in, when they were stopped by a writ of estrepement issued by the landlord, and an issue was framed in this case to try the right of the parties to the property which the tenants claimed the right to remove.</p> <p>In the general charge the court instructed the jury, inter alia, as follows:</p> <p>If, however, from all the evidence you come to the conclusion that they did not agree, but that their agreement was that all the repairs and additions and improvements to the old machinery only should be and remain the property of the landlord, if you find that that is all the plaintiffs agreed to, then they have the right to remove the new machinery, and in that event your verdict should be for the tenants, the plaintiffs. (First assignment of error.)</p> <p>* * * ÍÜ * «- * # *</p> <p>One of the tenants says that after he read the lease over the second time, giving the reason for not signing the lease that there was something ambiguous in it, and that did not convey the meaning he had intended; he thought he did write a letter to that effect. Now whether the letter was received or not, if he wrote it and mailed it, it is evidence in the case; it does not bind the landlord, but it is evidence to relieve the tenant of the presumption that would otherwise arise, that he assented to the lease as it was written out. Therefore, whether that letter was received or not, if he mailed it, it is evidence, and proper evidence for the jury, even though defendant never received such letter. (Secoud assignment of error.)</p> <p># •* * * * * * *</p> <p>Now, this letter of May 7th, you will notice, is a very important piece of testimony, because it seems to intimate that the parties left and had some further talk ; it winds up with the expression, or at least with the intimation, that it was not material whether the lease was signed or not, as he-says all matters at issue are now settled. . Listen again: “ My arrangements were, when I last saw you, for me to see my brother on my return to Baltimore, Saturday, as he was to come up Monda)', and send it back with him ; he took a notion to come up Saturday, instead, and we passed on the road.” You will remember that this is in answer to a letter from Mr. Folsom, wanting to know why the lease had not been signed and returned. And again: “ I have been intending to come over every day since; ” he had nothing to do but sign the lease and send it back. “ But the first of the week I was too busy, and the latter part I have been too unwell; I intend coming either on Tuesday or Wednesday next; if you can meet me telegraph to' that effect, and if not, please wire me when you can.” I do not remember any evidence that he was'telegraphed to, and I do not remember that the parties met; then comes the closing clause: “However, there is now no issue between us, and when the rent comes due you can get a check for the whole amount.” What did he mean ? That he had read over the lease and found that it was all right, or that he did not want to sign the lease until he saw Mr. Folsom; or that there was really no issue between them now, as it had been settled before, in the trouble over the extra expense he had undergone. (Third assignment of error.)</p> <p>* * * * -» * * * #</p> <p>If you find that the lease does not express what the parties meant, but that it contains something that the parties did not agree to, then you will say whether this paper (Marr’s statement) is a correct memorandum of their contract. This is, therefore, a very important paper for the tenants; it is almost as strong testimony for their side of the case as the lease is for the side of the landlord. (Fourth assignment of error.)</p> <p>The defendant presented, inter alia, the following points:</p> <p>If the jury believe that the written lease, is the terms upon which the property was demised, the verdict should be for the landlord.</p> <p>Answer. — This point I will answer after I have received your special verdict. (Fifth assignment of error.)</p> <p>The court directed the jury to find a special verdict as follows :</p> <p>1st. If the jury find that the tenants accepted the blank lease as the contract between the parties, they may leave the construction of the said paper to the court. In which event you will say that you are ignorant in point of law on which side you ought, upon this fact, to find the issue; that if the court shall construe the paper as giving the landlord the right to remove new machinery then you find for the defendant. If the court should .construe the paper to give the tenant the right to remove new machinery, put in by them, then we find for the plaintiff, and annex a list of the property which we find was new and could be lawfully removed.</p> <p>2d. If the jury find that the blank lease was not accepted by the tenants, say whether the memorandum made by Mr. Marr is a correct statement of the contract. If it is, your verdict should be for the tenants (plaintiffs), and annex'a list of new machinery.</p> <p>3d, If you find that neither paper contains the agreement, then under all the evidence do yoii find for the plaintiffs (the tenants, or the landlord (the defendant). If you find for the tenants, annex a list of the property you find they could remove.</p> <p>What I mean by new machinery is machinery no matter if it be one hundred years old, if it were nob in the mill before the tenants entered into possession, and to all the machinery that was put in there by them; and by the old machinery, everything that was there in the mill, even if it be new in every part but a crank, indeed if it be new in ever}"- part but it supplies the part of an old machine or is put in the place of one.</p> <p>The jury found in favor of the plaintiffs, J. M. Cook & Co., with the right to remove the following property : One pump, five centrifugals, two small converters, three neutralizing tubs, two sunken tubs, one converter, three neutralizing tubs, one refuse tub, one frame building, one wooden tub, fifty iron tanks, nine wooden tubs, one mill, three tubs, one mixing tub, one grinding machine, one water filter.</p> <p>Judgment was entered on the verdict, whereupon the defendant took the writ and filed the assignment of error as shown above.</p> <p>— Where a party calls upon the court to construe a written contract in evidence, it is incumbent on the court to do so, and not submit it to the jury for construction : Reaney v. Culbertson, 9 Harris, 507.</p> <p>The lease in this case was direct evidence of the relations of the parties to each other concerning the matter in controversy, and all direct evidence in writing is to be interpreted by the judge and not by the jury: Miller v. Fichthorn, 7 Casey, 252.</p> <p>The question whether the tenants were bound to leave on the demised premises the additions to the machinery and building which they put thereon, is de-ducible from the writing in evidence, and wherever a material fact is thus deducible from a paper in evidence, it is the duty of the court to construe it: Heath®. Page, 12 Wright, 130. '</p> <p>Particular terms used by parties in writing are to be interpreted by the court: Gass’ Appeal, 23 P. F. §., 39.</p> <p>The construction of a written instrument is exclusively the province of the court: Bryant and Enwer ®. Hagerty, 6 Norris, 256 ; Nellis v. Coldinaii, 2 Out., 465; Pegg v. Rist, 15 W. N. C., 70.</p> <p>It makes no difference that the writing is not directly the matter in controversy. All the written evidence in a case must be construed by the court: Foster v. Berg & Co., 14 W. N. C., 215.</p> <p>A suitor cannot give evidence of the contents of a letter mailed to his opponent without first having given him notice •to produce it: Elbert v. Finkbeiner, 18 P. F. S., 248.</p> <p>If it be answered that Mr. Folsom denied on trial the receipt of such a letter, then clearly it is evidence of nothing. How'can a tenant, after giving his acceptance of a lease, and after receiving the advantage of it, by the abatement of two months rent under it, and paying the rent at the times prescribed in the writing, be permitted to introduce evidence of an uncommunicated. objection to it, entertained after the acceptance of it?</p> <p>There is no presumption of law that a letter mailed to one at the place he usually receives his letters was received by him: Bank v. McManigle, 19 P. F. S., 156.</p> <p>— It is the duty of the court to interpret a contract, and of the jury to determine whether it is established by proof: Stokes v. Burrell, 3 Grant, 241.</p> <p>The finding of the jury made the construction of the paper immaterial. Any error in this respect is no cause for reversal: Buuce v. Stamford, 27 Pa. St., 265.</p> <p>Was it error in the court to say that the parol proof of the contents of the letter of the plaintiffs, properly mailed to the defendant, was evidence ?</p> <p>It would be sufficient answer to these objections to say that as there is no exception to the admission of the evidence, it was not error in any view for the court to say it was evidence. This has been settled law ever since McCullough v. Wallace, 8 S. & R., 181, where the evidence having been admitted without objection the court below said explicitly that “ it was evidence’’and your court affirming, decide that, “If illegal evidence has been given without objection it is not error in the court to treat it as legal evidence:” Weckerly v. Geyer, 11 S. & R., 35; Powell v. Sedgwick, 5 Wharton, 336.</p> <p>The rule as to notice to produce, is that it must be given to a party who. is in possession of the paper, and its admitted purpose is to enable such party, so having the paper, to produce .it' at- the trial; so that- the very terms of the rule, were there no authorities, show that it cannot apply to a party who absolutely denies having ever liad the paper, as, in such cases, the notice could serve no possible purpose. And this has been settled by authority in Pennsylvania, ever since Company v. Johnson, 7 W. & S., 317, and has been so held as late as Company v. Swartz, S. C. of Penna. E. D. January Term 1884, No. 149 (not yet reported). See also 1 Wharton’s Evidence, § 161.</p> <p>The depositing in the post-office of a letter properly addressed, with the postage prepaid, is prima facie evidence that the person to whom it was addressed received it. The fact that the defendants had no additional proof that the letters were actually received is immaterial.....The defendants had no control over the letters, it was not in their power to produce them; the plaintiff had testified that she never received them; and elearly a notice to her to produce them would be attended with no result, and would be a mere idle 'ceremony which the law did not require of the defendants: Briggs v. Hervey, 130 Mass., 186.</p>

<p>Error to the Court of Common Pleas of Lackawanna county: Of July Term 1886, No. 89.</p> <p>Ejectment by Joseph Slocum against Mary Heath and Wm. H. Heath, her husband. The proceedings were instituted before an alderman to obtain possession of real estate purchased at sheriff’s sale pursuant to Act of .Assembly approved June 16th, 1836, and supplement approved May 24th, 1878, removed to said court on affidavit and recognizance of claimant. Plea, not guilty.</p> <p>The following were the facts of the case as they appeared on the trial before Hand, P. J.</p> <p>On March 12th, 3 878, Joseph Slocum, the plaintiff, entered a judgment against Wm. H. Heath on a judgment note in his favor for the sum of $6,000, dated April 7th, 1877. On this judgment he issued an execution, by virtue of which the sheriff levied and sold the land in dispute on the 9th of August, 1879. At that sale Joseph Slocum became the purchaser. He then instituted these proceedings to obtain possession of the land in dispute. In these proceedings Mary Heath filed an affidavit setting forth—</p> <p>First. — That I have notf come into possession of the aforesaid premises, and do not claim to hold the same under the said Wm. H. Heath, the defendant in this suit and the defendant in the execution by which said premises were sold as the property of the said Wm. H. Heath, but in my right.</p> <p>Second. — That I have come into possession of said premises under a title derived by me from S. A. Gardner, and by her derived from the said Wm. H. Heath, before the date of the judgment of the said Joseph Slocum against the said Wm. H. Heath, under the execution issued on which the said premises were sold by the sheriff as the property of the said Wm. H. Heath, as set forth in the plaintiff’s petition filed in this case. The proceedings were thereupon removed to the Court of Common Pleas.</p> <p>On the 12th of September, 1864, Wm. H. Kfeath ■ bought of Joseph Fellows the land in. dispute for the sum of $1,200, for which Fellows executed and delivered to him a deed on that date. Mary Heath, the defendant, alleged, and so testified, that this purchase was made with her money, and that Wm. H. Heath acted as her agent in making the purchase; that she objected to the title being taken in the name of her husband, and that he thereupon agreed to convey the land to her; that lie drew and executed to her an assignment of' the deed upon the back of the original deed, November 20th, 1869.</p> <p>The defendant offered to prove by the witness on the stand (L. W. DeWitt, attorney at law) that in 1875 he met W. H. and Mary Heath in the city of Scranton; that they had with them the original deed from Joseph Fellows for the lot in suit; that upon it there was an assignment from W. H. Heath to Mary Heath; that they asked him whether that was sufficient in law to convey the estate ; that he said the more regular and legal way was to convey the property to a third person as trustee, and let him convey it back to Mary Heath.</p> <p>Counsel for plaintiff object to the offer as immaterial and irrelevant; and that any conversation between Dr. Heath and his wife and the witness on the stand, in the absence of Joseph Slocum, is not evidence.</p> <p>The Court. — We sustain the objection and reject the evidence.</p> <p>Exception noted for defendant, at -whose request a bill is sealed. (First assignment of error.)</p> <p>Original deed from Joseph Fellows to W. H. Heath for the land in dispute shown witness.</p> <p>Counsel for the defendants propose to prove that the witness saw that in 1875, and the assignment to Mrs. Mary Heath was on the hack of it at that time.</p> <p>Counsel for plaintiff object to it.</p> <p>The Court. — We will sustain the objection and reject the evidence.</p> <p>Exception noted for defendants, at whose request a bill is sealed. (Fourth assignment of error.)</p> <p>On October 11th, 1877, the defendants, by deed reciting the consideration of $5,000, conveyed the land in dispute to Miss S. A. Gardner. Miss Gardner gave her note to Wm. H. Heath foi this amount. On November 25th, 1877, Miss Gardner assigned her deed to Mary Heath. Wm. H. Heath thereupon returned to her her note of $5',000.</p> <p>The defendant offered to prove by the witness on the stand (Miss S, A. Gardner) that the purpose of the deed and assignment was to convey the legal .estate in the land in question from Wm. H. Heath to Mary Heath, and that the transfer to S. A. Gardner and her assignment was for that purpose.</p> <p>Counsel for the plaintiff object to the offer as irrelevant, and they cannot show the intention in any such way — the papers must speak for themselves.</p> <p>Counsel for defendants. — That offer is to be preceded by the offer and admission of the deed.</p> <p>The Court. — We will sustain the objection and reject the evidence. • ...</p> <p>Exception noted for defendant, at whose request a bill is sealed. (Second assignment of error.)</p> <p>The defendant offered to prove by the witness on the stand (A. D. Dean) that at the time Dr. Heath signed the note to Joseph Slocum of $6,240, April 7th, 1877, he, Wm. H. Heath, at that time, was the owner in his own right of real estate to the value of from twenty to thirty thousand dollars outside of the land in question in this case; and that at the time the said money was borrowed there were no encumbrances against said property; that the real estate purchased by Slocum on the sheriff’s sale on Slocum’s judgment was sold for a nominal consideration, and that Joseph Slocum, as the result of the sheriff’s sale, has been in possession of property at least to the value of twenty thousand dollars, and is now the owner of the same. This offer is made for the purpose of rebutting any presumption of fraud in the conveyance of the title to the land in question from Dr. Heath to his wife, or in the perfecting of the title in Mrs. Heath, which Mrs. Heath claims was in her deed; and that at the time the deed was transferred through S. A. Gardner to Mrs. Heath, the property included in the offer was still owned by Dr. Heath. ■</p> <p>Counsel for the plaintiff object to the offer as irrelevant.</p> <p>The Court. — Objection sustained and evidence rejected.</p> <p>Exception noted for defendant, at whose request a bill is sealed. (Third assignment of error.)</p> <p>The defendant offered in evidence the assignment dated November 20th, 1869, from W. H. Heath to Mary Heath of the Fellows deed.</p> <p>Counsel for the plaintiff object to the offer as irrelevant.</p> <p>The Court. — Objection sustained and evidence rejected. (Fifth assignment of error.)</p> <p>In the general charge the court instructed the jury, inter alia, as follows :</p> <p>[It seems that Mrs. Heath received from her father’s estate a considerable sum of money. This is not in dispute. The evidence on this point is clear. Now did she actually purchase this property with her money as her property? She says she-did. She further says that- the deed was made by mistake to her husband.</p> <p>How does she trace her own money into this lot, and how does she show that her husband held this in trust for her? She says she loaned a thousand dollars to her husband when at Dalton. She says he paid a part of this back again to her, and that it went into this lot. She afterwards says she paid twelve hundred dollars for the lot, which was the consideration mentioned in the deed.</p> <p>I do not recollect that she specifically traces the whole of this money into this lot (if the evidence shows it why the jury will correct me if I am mistaken upon that point) except by, perhaps, a general assertion.] (Sixth assignment of error.)</p> <p>[Now, you heard all her evidence. Does she clearly satisfy you that she put her money into the lot? Does she trace her money into the lot? If she fails to' do this, she does not make her title to it, and she must clearly trace the whole of the money into the lot. She cannot mix her money with her husband’s and then claim that the lot is hers.</p> <p>How does she prove the trust? She says in effect that when her husband brought the deed he was sorry he had it made to him, but if they sold it he could convey it; if not, he could arrange it.] (Seventh assignment of error.)</p> <p>Now, against this evidence is. the fact, that the deed was made to Dr. Heath; it was recorded in his name and remained on record down to 1877 in his name. [Under these circumstances does Mary Heath give you the true version of this transaction from beginning to end, because the whole of it must come before you under all the evidence. If she gave the money to her husband — that is, if she gave it to him as his — then she cannot recover.</p> <p>She must have given him the whole amount of twelve hundred dollars for the purpose of buying this lot, and he must have bought it with that money for her.] (Eighth assignment of error.)</p> <p>The deed to S. A. Gardner was dated the 11th day of October, 1877, and the assignment from S. A. Gardner to Mary Heath was dated the 26th of November, 1877. The date of the first deed was after the date of the loan of the money from Joseph Slocum to Dr. Heath. The deed was recorded a little over two months before Joseph Slocum entered his judgment.-</p> <p>[Now, was that whole transaction an honest transaction? It is alleged that this deed was made, alleged by the .defendant that this deed was made simply to carry out the trust of Dr. Heath in favor of his wife.</p> <p>The difficulty with this position is, that Dr. Heath and his wife did not put it upon that basis at the time that they made the deed. The attempt was to give the deed the appearance of a purchase aud sale for the sum of five thousand dollars, and Mary Heath set this up in her affidavit.] (Ninth assignment of error.)</p> <p>Sarah A. Gardner says no money was paid; it was a note given by her, and the note was passed back.</p> <p>Now, gentlemen, under all these circumstances, we leave all these facts, with the other facts, to you to determine whether the claim set up by Mary Heath was an honest and bona fide one against this title of Joseph Slocum. If it were, she is entitled to recover; if it were not, then she is not entitled to. recover.</p> <p>[Your attention has been called to this deed and the .alterations upon it. The alterations upon the,deed raise some suspicions in regard to the deed, and they must be clearly proved before the deed is allowed to come in evidence.</p> <p>Now all the facts sworn to'in regard to this are facts in the case, and they are facts which we leave to you, under all the circumstances, to determine whether the claim set up here is an honest bona fide claim. (Tenth assignment of error.)</p> <p>The defendants presented, inter alia, the following points:</p> <p>5. There is no evidence of actual fraud on the part of Mary Heath in the purchase and conveyance of said land.</p> <p>Answer of the court. — That, gentleman, is a question of fact for you under all the evidence. (Eleventh assignment of error.)</p> <p>Verdict for the plaintiff for the lands described with damages for detention in the sum of $1,596.66 and thereupon judgment, whereupon the defendants took this writ and filed the assignments of error above shown.</p> <p>— It is competent for a party to show his acts in carrying out an agreement: Devling v. Little, 26 Pa. St., 506 ; York County Bk. v. Carter, 38 Pa. St., 446 ; Gilchrist v. Ball, 8 Watts, .356 ; Stekel v. Desk, 12 W. N. C., 133.</p> <p>As we understand the charge of-the court it asserts as a rule of law that a married woman in such a case as this must not only prove clearly that she had a separate estate, that she paid for the land or other property purchased by her during coverture, but she must specifically trace her money from its source through the various change of form it may have undergone, into the property purchased.</p> <p>After the lapse of over twenty years, in nine cases out of ten, this requirement could not be complied with. The enforcement of this rule b}r requiring Mrs. Heath to explain what she did with the $1,200 paid for the Fellows lot from the time it was received from her father’s estate until it was used in that purchase, was in effect instructing the jury to find for the plaintiff.</p> <p>There is no evidence in the case that Mrs. Heath ever claimed that she purchased the lot of Miss Gardner except that such a consideration was expressed in the deed and assignment, Deeds are frequently given which, as in this case, express a different consideration from that which actually passes between the parties. That is not a badge of fraud, especially where the actual consideration can be proved a good one.</p> <p>It is competent to show that the consideration of a deed, which is expressed as pecuniary, was one of kindred or marriage : 2 W ash burn on Real Property, 406; Gale v. Colburn, 18 Pickering, 297.</p> <p>That the consideration expressed in a deed is different from the actual one is of little importance: McElfatuck v. Hicks, 21 Pa. St., 407; Stewart’s Appeal, 98 Pa. St., 384.</p> <p>The affidavit of Mrs. Heath alleges that she derived her title from Sarah A. Gardner, who received the same from W. H. Heath before the Slocum judgment was entered.</p> <p>If the court had allowed proof -of the acts and declarations of Mr. and Mrs. Heath prior to the entry of the Slocum judgment, before the loan to Heath was made, and when an intention to defraud him was impossible, the motive of the transaction would have been fully explained.</p> <p>— The defendant could offer no evidence of a title, legal or equitable, except that set up in her affidavit filed before the justice: Kimball v. Kelsey, 1 Pa. St., 183; Walker v. Bush, 30 Id., 352.</p> <p>If a wife permits her husband to take title to her lands, and to hold himself out to the world as the owner of them, and to contract debts upon the credit of such ownership, she. cannot afterwards, by taking title to herself, withdraw them from the reach of his creditors, and thus defeat their claims: Wait .on Fraudulent Conveyances, § 305, and cases cited.</p> <p>“ Whether a trust is deducible in any given case from the nature of the transaction as a matter of actual intent is susceptible of oral proof, but he who alleges the trust takes the burden of establishing it, and all the essential requisites of that trust must be shown by clear, explicit and unequivocal proof:” Earnest’s Appeal, 15 W. N. C., 19; McGinity v. McGinity, 13 P. F. S., 38; Nixon’s Appeal, Id., 279; Legen-' felter v. Richey, 12 Id., 123; Kistler’s Appeal, 23 Id., 93; Fricke v. Magee, 10 W. N. C., 50; Myers v. Leas, 101 Pa. St., 172; Buchanan v. Streeper, 12 W. N. C., 434; Gault v. Saffin & Wife, 8 Wr, 307.</p> <p>■ Mary Heath was bound to show that Joseph Slocum had notice of this alleged trust prior to his purchase at sheriff’s sale.</p> <p>As long ago as 1824, Judge Gibson said: “The purchaser of a legal title takes it discharged of every trust or equity which does not appear on the face of the conveyance, and of which, he has not had notice, either actual or constructive: ” Chew v. Burnett, 11 S. & R., 392.</p> <p>See also Eillman et al. v. Divers, 31 Pa. St., 429; Sweetser v. Atterbury, 100 Pa. St., 18.</p> <p>The alleged declarations of Wm. H. Heath were not part of the res gestee.</p> <p>First. Declarations to become part of the res gestee must be declarations which may truly be said to be part of “ the things done.”</p> <p>Second. They must be contemporaneous to the facts to which they relate: Enos v. Suttle, 3 Conn., 250; Ins. Co. v. Mosely, 8 Wall, 397; Greenleaf on Ev., page 130, note.</p> <p>Third. They must limit, explain or characterize the fact to which they relate so as in a just sense to be a part of.it, and necessary to its complete understanding.</p> <p>Fourth. They must not be a narrative of past events.</p> <p>Declarations of a party in his own favor, not part of the res gestee, are not evidence: Duvall v. Darby, 38 Pa. St., 56.</p> <p>Where there is no ambiguity in a deed, parol evidence of the intention of the parties is inadmissible: Albeit v. Zeigler, 29 Pa. St., 50; Fisher v. Diebert, 54 Id., 460; Kirk v. Hartman, 63 Id., 97; Martin v. Berens, 67 Id., 459. In the absence of proof, any acquisition by the wife from her husband is presumed to be a gift voidable as against subsisting creditors: Kelly’s Appeal, 27 P. F. S., 236; Graybill v. Moyer, 9 Wright, 533; Keeny v. Good, 9 Harris, 355; Baringer v. Stiver, 13 Wr., 129; Aurand v. Shaffer, 43 Pa. St., 363.</p> <p>It is clearly recognized in equity that where there are suspicious circumstances the party is put upon proof of bonafides: Boyd v. Dunlap, 1 Johns. Ch., 479.</p>

No. 120. Appeal by the Dyberry School District, from the judgment of a justice of the peace in favor of Nellie J. Mercer, in an action brought by her to recover damages from said school district, for refusing to permit her to teach school for the term for which she alleged she was employed.

<p>Error to the Court of Common Pleas of Laehawanna county: Of January Term 1887, No. 30.</p> <p>Assumpsit by The Citizens’ and Miners’ Savings Bank and Trust Co. to the use of W. D. Kennedy and F. B. Silkman, assignees for the benefit of creditors of said bank, against James W. Gillespie, to recover the balance due on a subscription to the stock of said bank. Plea, non-assumpsit, payment set-off with leave.</p> <p>On the trial, before Archbald, J., the following facts appeared:</p> <p>The Citizens’ and Minei’s’ Savings Bank and Trust Company was incorporated by Act of Assembly, approved April 13th, 1872.</p> <p>It was organized April 11th, 1873, and went into successful operation.</p> <p>Stock was subscribed for by John B. Gillespie, who paid’ fifty per cent, upon it as called for by the directors, but no certificate was ever delivered to him, although one was made out and signed by the officers of the bank. It remained in the certificate book.</p> <p>Thirty shares of this stock were transferred to James W. Gillespie, the defendant, who, upon receiving them, signed a subscription, as follows:</p> <p>“ We, the undersigned, do herein subscribe for the amount set opposite our respective names of the capital stock of the Citizens’ and Miners’ Savings Bank and Trust Company, incor•porated by an Act of the Legislature of the state of Pennsylvania, approved April 13th, 1872. We do hereby agree to pay the amount subscribed at such times and in such manner as the Board of Directors of said corporation may from time to time order and direct. Providence, Pennsylvania, Saturday, April 12lh, 1873.”</p> <p>Signed, among others, James W. Gillespie, $3,000.</p> <p>The certificate for this stock was issued and delivered to the defendant December 3d, 1873.</p> <p>Semi-annual dividends were declared and received by tbe defendant up to February 1st, 1878, which amounted to forty-four per cent, of the money paid upon the stock.</p> <p>On April 17th, 1879, the bank became embarrassed and made a general assignment of all its estate, assets and effects to W. D. Kennedy and Ii. Roberts, which was duly recorded. H. Roberts resigned the trust and F. B. Silkman was appointed assignee in his place by thp court. The assignees gave bonds which were approved by the court, and entered upon the duties of their trust.</p> <p>This action was brought December 6th, 1882.</p> <p>During the trial the- plaintiff offered in evidence a citation to W. D. Kennedy and F. B. Silkman, setting forth, among other things, that they had neglected to collect the unpaid subscription to the capital stock of the bank, asking for their removal on that ground.</p> <p>Petition for citation was filed January 14th, 1882, upon which citation was issued the 27th of Januaiy, 1882. Answer of W. D. Kennedy and F. B. Silkman was filed February 6th, 1882, setting forth, among other things, that the question whether or not there should be an assessment for the unpaid subscription to the capital stock of said bank has been submitted to the court and still remains undecided, that they at all times heretofore have been and now are desirous to follow the directions of the court in this matter.</p> <p>In connection with that, the order of Handley, P. J., made in chambers, during vacation August 7th, 1882: “On consideration of the petition of the assignees of said bank, said assignees are authorized and directed to collect the unpaid subscription to the capital stock of said bank, and they are authorized to receive in payment of the unpaid subscription any just and legal claims against the bank.” (Signed) John Handley, President Judge.</p> <p>. Objected to by defendant as irrelevant and immaterial. Objection sustained, and a bill of exceptions sealed for the plaintiff. (Twelfth assignment of error.)</p> <p>The defendant’s counsel against the objection of plaintiffs counsel was permitted to interrogate Mr. Kennedy, the witness on the stand, as to the financial responsibility of one Henry O. Silkman, the allegation being that Silkman was a stockholder to the amount of $20,000, and that if his subscription were good the whole amount of the unpaid stock would not be needed. There was no evidence that Silkman was a stockholder to the extent of over $5,000. The witness was not very clear as to Silkman’s responsibility. (Ninth assignment pf error.)</p> <p>The court charged the jury, inter alia, as follows: [The main questions at issue, to wit, whether the defendant was a stockholder who had subscribed for capital stock of the bank, and whether this balance of unpaid stock is fully necessary to meet the liabilities of the bank, are both denied by the defendant. These raise the issues then upon which you are to pass, and according as you determine these so your verdict will be for the plaintiffs or the defendant, as I shall explain to you.] (First assignment of error.)</p> <p>[The first question then for you to determine is whether ¿he defendant is a subscriber, or was a subscriber at the time of the failure of this bank to the capital stock of the bank; now, this is not simply whether he held stock in the bank, because of that there is no dispute; at the time of the failure of the bank, he held thirty shares, and still holds them, upon which one half, fifty per cent., had been paid; but the question is whether he subscribed for this stock.] (Second assignment of error.)</p> <p>* The minutes of the organization of this bauk in 1873 have been put in evidence before you. By the recitals contained in them, it appears that the corporators, or a majority of them, having met, subscriptions were made to the capital stock of the bank, to the extent of $125,000. While this may not be sufficient evidence to hold the parties who áre recited in these minutes to a subscription, if they were contesting their position as original subscribers, still, under the evidence as it has been presented to you, I must hold, and so instruct you, that the original subscribers to the stock of the bank were the parties who are named in these minutes.</p> <p>This, then, excludes the defendant from being held as an original subscriber. His name is not recited there, and 'he does not appear therefore to have been one of the parties who subscribed to the original stock of the bank.</p> <p>The method in which he actually acquired his stock is disclosed to you by the evidence, and there appears to be no particular dispute in regard to this.</p> <p>One of the parties who subscribed to this $125,000 of original stock was the brother of the defendant, Mr. John B. Gillespie. He subscribed for 100 shares or, at par value "of $100, $10,000 of this $125,000, and subsequently he transferred of this 100 shares 30 shares to the defendant. This transfer was made about the 2d of December, 1873, as I remember the evidence, and at that time Mr. John B. Gillespie marked upon the certificate, which had been made out to him for his original subscription, an assignment of 30 shares covered by that original subscription to the defendant, and upon the certificate back, which has been presented to youffiere, a regular transfer of 30 shares of that 100 was made to the defendant,, and a stock certificate issued to him for it.</p> <p>[Now then, if the case stopped there, the defendant would be virtually a transferee of stock, as it is called, that is, a person to whom, either immediately or through other intervening parties, stock has been transferred from a person who originally subscribed, and a simple transferee is not liable to the corporation for any balance that might be unpaid upon it as a subscription.] (Third assignment of error.) But at the time of receiving this certificate for 30 shares of stock, the defend-, ant was called upon to sign a book, which has been put in. evidence here, and in compliance with that requirement of the bank he did sign that book.</p> <p>He signed his name under the following head: “We, the' undersigned, do hereby subscribe for the amount set opposite our respective names of the capital stock of the Citizens’ and Miners’ Savings Bank and Trust Company, incorporated by an Act of the legislature of the state of Pennsylvania, approved April 13th, 1872, and we do hereby agree to pay the amounts subscribed at such times, and in such manner, as the board of directors of said corporation may from time to time órder and direct. Providence, Pa., Saturday, April 12th, 1873.”</p> <p>Then follows along a list of names with the amounts set opposite them in a column arranged for that purpose, and, among others, the name of the defendant, James W. Gillespie, with the figures 3,000 opposite his name.</p> <p>It is alleged on the part of the defendant, that this book was signed by all parties to whom stock was transferred, and he says that this was done simply for the purpose of having a complete record and list of the stock as it was transferred* and of the stockholders to whom it was transferred.</p> <p>But in terms as it stands before us, that is not the purport of this writing, and there is no sufficient evidence in the case, in my opinion, to change this from its natural effect, or to give it auy other effect than such as would be drawn from it as it stands.</p> <p>The question then is, what is tile purport of this writing subscribed by the defendant?</p> <p>[Now, as I have already said to you, gentlemen, a person is not liable for unpaid subscriptions to the capital stock of a bank, unless he originally participated in the organization of the bank, and was one who originally subscribed to the capital of the bank, and that the person to whom stock was simply transferred was not, as a transferee, liable to the bank.] (Fourth assignment of error.)</p> <p>That is, however, subject to «this qualification, that if a party to whom stock has been transferred, upon the requirement of the bank agrees to pay the unpaid balance upon stock which is transferred to him, then a contract relation is established between himself and the bank, which can be enforced. And that is the effect, under the evidence, of this writing, to which the defendant subscribed his name at the time of the transfer.</p> <p>The evidence is, that it was required of him that he should sign this book as a condition of the stock being transferred to him, and while it reads as an original subscription might, still it is not necessarily confined to that; we are not warranted in discarding it, because it is in part of that form; in substance it assumes to pay, as part of the capital stock of the bank, the amounts set opposite the parties’ respective names who signed it. And that, taken in connection with the fact that the defendant was required to do this, as a condition of the transfer to him of his stock, and the issuing of a certificate to him, established a contract or agreement on his part to hold himself liable to the bank to the extent of three thousand dollars.</p> <p>I might say further, gentlemen, that it was right and proper for the officers of the bank to. call upon the defendant to do this, in making this transfer. While it is true, if he had refused to do that, the bank could not have compelled him, because every one may dispose of his stock in a corporation to another, and a party to whom it is transferred has a right, unless there be by-laws to the contrary which bind him, to have it transferred upon the books of the bank, and certificates for it issued to him, upon a mere transfer. ,</p> <p>[But the defendant'did not stand'upon that right. He accepted the requirement of the bank, and as the bank or corporation could only enforce unpaid subscriptions to stock against parties who had agreed to pay, and so if they had not compelled parties to sign this book, or to sign something like it, would have been remitted to the original stockholders.] (Fifth assignment of error.)</p> <p>Upon a failure such as this, it was proper for the bank, when parties came in with a transfer of stock, to compel them to sign such an agreement as this, so that they, in every case, might be held for the balance that was unpaid.</p> <p>* * *.* * # * *</p> <p>[It is right and proper to take into consideration these parties who appear as original subscribers to this one hundred and twenty-five thousand dollars, and if you find from that, and you are not satisfied in regard to this sixteen thousand dollars, which the appraisers have considered available assets, taking those two circumstances into consideration, that the whole of the stock subscriptions of each solvent stockholder, and among others this defendant, is required to meet the liabilities, then the plaintiffs are not entitled to recover in this case. As I have said to you before, the question on this issue is not whether there may not be a necessity for calling in some part of the subscriptions; in any view of the case, as I take the evidence, a necessity is shown for calling in some part, but neither you nor I, in this proceeding and under such facts as have been developed, would be able to make an assessment and say how much is needed less than the whole amount. If you find under the evidence that the whole amount is not necessary, then the plaintiffs cannot recover for any amount, because we have no standard to fix how much; but if you are satisfied from the evidence that the whole amount will be necessary, then the plaintiffs will be entitled to recover upon that issue.] (Sixth assignment of error.)</p> <p>Verdict for the defendant and judgment thereon, whereupon the plaintiff took this writ and filed, inter alia, the assignments of error shown above.</p> <p>— Can a corporation assign an unpaid subscription to its capital stock, so that its assignee can collect the same?</p> <p>“ Corporations unless expressly restrained by the Act which establishes them or some other Act, have and always have had an unlimited power over their respective properties, and may alienate and dispose of the same as fully as any individual may do in respect to his own property: ” Dana v. Bank of U. S., 5 W. & .S., 223; 1 Kyd. ¿n Cor., 108; 16 Sid., 162.</p> <p>The directors of a bank have power to assign all its property to trustees to pay its debts: Catlin v. Eagle Bank, 6 Conn., 233; Bank of Tennessee v. Ellicott, 6 Gill & Johnson, 363.</p> <p>“ The general assignment made by the corporation for the benefit of creditors passed all its rights substantially to the assignees: ” Yeager v. Trust Co., 14 W. N. C., 296.</p> <p>“Unpaid stock is as much a part of the assets of the company as the cash which has been paid in upon it: ” Sanger v. Upton, Assignee, 1 Otto, 60.</p> <p>It was error to hold that the assignees holding the legal title to this debt, and having power to make the calls under Yeager v. Trust Company, which they did, could not collect anything unless there was first an adjudication by a competent tribunal that the whole of the unpaid stock of all the subscribers was required to pay off the liabilities: Bell’s Appeal, 44 Leg. Int., 27 ; Cornell’s Appeal, 44 Id., 37.</p> <p>A transferee or holder of’stock is liable to pay calls for any amount unpaid while he so holds the same: Bell’s Appeal, supra; Angelí & Ames on Corporations, § 534; Webster v. Upton’s Assignees, 1 Otto, 65.</p> <p>The Court of Common Pleas may exercise its chancery powers in directing an assignee for creditors, to call in unpaid installments without notice to each stockholder before making such order: Kennedy v. Gibson, 8 Wall., 505; Cadle, Receiver, v. Baker, 20 Id., 650.</p> <p>— The transferee of stock of the bank in question without more is not liable for unpaid subscriptions.</p> <p>There is nothing in the charter of the bank which imposes any obligation to pay, on the transferee of its stock: Act of Incorporation, P. L., 1873, p. 1100, Appendix C.</p> <p>In the case of Pittsburgh and Baltimore Coal, Coke and Iron Co. v. Otterson, 4 W. N. C., 545, this court said:</p> <p>“ It is settled in this state by Canal Co. v. Sansom, 1 Binn, 70; Palmer v. Mining Co., 10 Casey, 288, and Franks Oil Co. v. McClearry, 13 P. F. S., 317, that the assignee of stock in an incorporated company is not personally liable for assessments made upon him subsequently to his purchase, and his having paid some, certainly cannot make him liable for others.”</p> <p>Before the plaintiffs can recover, they must show a call by the board of directors, or what is equivalent, by a court of competent jurisdiction in a proper proceeding: Lane’s Appeal, 9 Out., 49.</p> <p>We can add nothing to what has been so well said by Mr. Justice Green in Bunn’s Appeal, and beg leave to refer to the cases cited by him therein: Germantown Pass. R. R. Co. v. Fitler, 10 P. F. S., 124; Pierce on Railroads, 75, 74; Morawitz on Private Corporations, 281; Bunn’s Appeal, 9 Out., 49.</p> <p>In every case cited in plaintiff’s paper book in support of an action at law, there was a call by the directors or an assessment by a competent court.</p> <p>We think the correct practice is clearly pointed out .in Bunn’s Appeal and Bell’s Appeal, viz.: That where a cred-</p> <p>itor or creditors desire to avail themselves of the equitable liability of stockholders they should file a bill in equit3r, praying for an assessment on which an action can be brought or for a decree directly against each stockholder.</p>

285. Scire facias sur mechanics’ lien, wherein E. H. Cook Co., Limited, were plaintiffs, and William H. Dimmiek, owner, or reputed owner and contractor, was defendant. The claim, as filed by the plaintiff, was for materials purchased and placed in the Irving Cliff Hotel, in accordance with entire special job contracts made between said E. H. Cook & Co., Limited, and said William H. Dimmiek, within six months last past.

<p>1. A judgment confessed in an amicable action of ejectment, by the owner of the equitable title, in favor of the owner of the legal title to land, conditioned that it shall be void, if the amount justly due the latter shall be paid within a stipulated time, if entered into by the parties for the purpose of hindering, delaying or defrauding the creditors of the former, is voidable by his said creditors, and for the purposes of applying his interest in the land to the satisfaction of the claims of said creditors, the same is deemed to be still vested in him; and whether or not said judgment was so entered into by the parties, is a question of fact for the jury from all the evidence in the case.</p> <p>2. The purchaser, at sheriffs sale, of the interest of the owner of the equitable title to land, may maintain an action of ejectment, against the owner of the legal title for the same, without paying or tendering the purchase money due the owner of the legal title, where the owner of the legal title, and the owner of the equitable title to said land, have colluded to hinder, delay and defraud the creditor of the latter, on whose judgment the said sheriff’s sale was made, by means of an amicable action of ejectment with confession of judgment entered into between them.</p> <p>3. The burden of proof is on him, who charges that a judgment in ejectment was collusively confessed and entered, for the purpose of hindering, delaying or defrauding creditors, and he must make out his case, under the rules of evidence, applicable in actions at law; he is not however required to do so under the rules of equity, that the equivalent of the testimony of two witnesses is necessary to overcome the responsive answer to the fact averred in the bill.</p> <p>4. The rule in Martin v. Borens, 17 P. P. Smith, 459,' and Thome, McFarlane & Co. v.. Warfflein, 4 Outerbridge, 519, which applies where one party to an instrument seeks to vary, reform or set it aside by oral testimony, does not apply where a party to a collusive and fraudulent judgment confessed and entered for the purpose of hindering, delaying or defrauding his creditors testifies as to said collusion and fraudulent purpose.</p>

<p>Appeal from the Orphans’ Court of Chester county: Of July Term 1886, No. 101.</p> <p>Appeal of Virginia Baker and Elizabeth C. Wheeler from the decree of said court dismissing their exceptions to the report of the Auditor distributing the funds in the hands of the administrator, c. t. a., of Gustavus C. Wheeler, deceased, arid confirming said report.</p> <p>H. T. Fairlamb, Esq., was appointed Auditor to distribute the funds in the hands of the administrator.</p> <p>The following are the facts as they appeared before him:</p> <p>Gustavus C. Wheeler, the decedent, was possessed, under the will of his father, William Wheeler, decedent of a life estate in certain property, with the power of appointing the reversion by any will he might make.</p> <p>From his grand uncle, Charles Bennett, by deed of trust, and his mother, Marion'Wheeler, he inherited other estates in his own right.</p> <p>In August, 1865, the decedent was declared an habitual drunkard, and a committee was appointed, who gave bond with security for the estate which came into his hands.</p> <p>The same person was also testamentary trustee under the will of William Wheeler, for Gustavus, of that part of the estate of William Wheeler, over which the power of appointment existed.</p> <p>This trustee, and committee, died insolvent, and that part of William Wheeler’s estate in his hands, was found on settling his affairs to have been dissipated.</p> <p>R. E. Monaghan, Esq., was appointed committee to' succeed him, and succeeded in recovering from the sureties of the former committee, the amount in his hands, as committee.</p> <p>In 1869, Gustavus C. Wheeler made the following writing, which was proved as his will, and upon which this controversy arises:—</p> <p>“ Witness all persons I Gus 0. Wheeler this day 2d day of October 1869, if I should be killed or otherwise lose my life, I leave and bequeath all my property (as stated in my father’s will) to my wife Mary S. Wheeler. Gus C. Wheeler.”</p> <p>Gus C. Wheeler died April 10th, 1884, leaving a widow, Mary S. Wheeler, but no children.' His next of kin are his two sisters, H. Virginia Baker and Elizabeth Wheeler, the appellants. They and their brother Gustavus, being the only children of William Wheeler, deceased.</p> <p>The administrator, e. t. a., filed his account, showing a balance in his hands of $2,995.80, which sum includes, as ascertained by the Auditor, the sum of ninety dollers, which was derived from the estate of William Wheeler, in Virginia, after the death of his trustee, and was paid to the committee of Gustavus, instead of to a new trustee under the will.</p> <p>The question presented to the Auditor was, what is the proper construction of the will of Gustavus C. Wheeler, deceased.</p> <p>It was contended on behalf of the widow of the decedent, that by its terms the whole moneys for distribution passed to her; while it was claimed, on behalf of his sisters, that the will was merely an exercise of the power contained in the will of William Wheeler, and that nothing passed by the will of Gustavus C. Wheeler to his widow but the $90 referred to, which came from the estate of William Wheeler; that as to the estate which the testator held in his own right, he died intestate, and that it must be-distributed under the intestate laws to the widow and sisters of the decedent.</p> <p>The Auditor reported a distribution awarding the whole estate to the widoAv.</p> <p>The sisters of the decedent filed exceptions to the report and distribution which the court after argument dismissed and confirmed the report, and entered a decree distributing the whole estate to the widoAv of the decedent. The sisters thereupon took this appeal, and assigned the said decree of the court for error.</p> <p>— The intention of the testator is clear and unambiguous. The Auditor and court below, have raised a doubt outside of the will of Gus C. Wheeler, and that of the father to which it refers.</p> <p>Upon the face of the papers there is no doubt or ambiguitjr, and extraneous evidence as to intention, cannot be admitted.</p> <p>The general rule is that parol evidence is admissible only to explain latent ambiguities, so as to apply the provisions of a will to the subject or person intended, when the description is defective, uncertain, or too general to be understood specifically : Best v. Hammond, 5 P. F. S., 409; Westhoff v. Dracount, 3 Watts, 240; Wigram on Wills, 118; Bartholomew’s Appeal, 25 P. F. S., 169; Spousler's Appeal, 11 Out., 95; Hancock’s Appeal, 2 American, 532.</p> <p>The court below lays stress on the fact that he uses the word my — “all my property.” As the power which he had was general and unlimited, it was not unnatural for him to call the property upon which it operated, my property.</p> <p>A general power is, in regard to the estates which may be created by force of it, tantamount to a limitation in fee, not merely because it enables the donee to limit a fee, but because it enables him to give the fee to whom he pleases: Thompson v. Garwood, 3 Wharton, 305.</p> <p>An unlimited power of disposal is sometimes said to be equivalent to ownership, because it enables the person who possesses it to make the property his own: Com’th v. Duffield, 2 Jones, 280.</p> <p>— “It has been long and well' settled, and indeed it is a principle so consonant with reason, that the only wonder is that it should ever have been questioned, that all the surrounding circumstances of a testator— his family, the amount and character of his property — may and ought to be taken into consideration in giving a construction to the provisions of his will: ” Shabswood, J., in Postlethwaite’s Appeal, 18 P. F. S., 480; Marshall’s Appeal, 2 Barr, 388; Earp’s Will, 1 Parsons, 453.</p> <p>This is not admitting evidence of intention, as is contended by the appellants. It is only for the purpose of enabling the court to discover the intention by “ putting themselves in the place of tire party and to see how the terms of the instrument affect the property or subject-matter:” 1 Greenleaf on Evidence, sec. 287; Bingham’s Appeal, 14 P. F. S., 349; Best v. Hammond, 5 Id., 412; Brownfield y. Brownfield, 8 Harris, 55; Newell’s Appeal, 12 Id., 197.</p> <p>Prior to the Act of June 4th, 1879, “the supplement to the Wills Act,” a bequest of all his property would not have been an execution'of a power of appointment: 2 Jarman on Wills, p. 679.</p> <p>The only thing stated in his father’s will that the parenthetical claim can have reference to, is the ability to make a will. When a will is executed, the natural and reasonable presumption is that the testator does not intend to die intestate as to any of his property: Miller’s Appeal, Leg. Int., Dec. 31st, 1886; Stehman et al. v. Stehman, 1 Watts, 466; Raudenbaclx’s Appeal, 6 Norris, 51; Hofins v. Hofins, 11 Id., 305 ; Roland v. Miller, 4 Out., 50; Feny’s Appeal, 6 Id., 207; Little’s Appeal, 3Í P. F. S., 190; Appeal of Board of Missions, 10 Norris, 507; Axford’s Estate, 2 W. N. O., 663.</p> <p>The presumption therefore is that when Gus C. Wheeler.■wrote this will, he intended to dispose of all his property. In construing the will the court will act upon that presumption, and, unless the language of the will absolutely forbids, it will so interpret it as to make it efficacious in the disposition of all his estate.</p>

<p>Error to the Court of Common Pleas of Chester county: Of July Term 1886, No. 169.</p> <p>Rule to show cause why judgment taken by default for want of an affidavit of defence should not be stricken off, and to stay proceedings on an attachment execution.</p> <p>The facts of the ease sufficiently appear in the following opinion of the court discharging the rule:</p> <p>The plaintiff brought suit against the defendant on March 20th, 1879, and filed his statement of his cause of action March 22d, 1879. The summons was. served on the defendant March 24th, 1.879, and judgment by default taken April 3d,' 1879, for $663.71. The Act of Assembly relating to the commencement of actions in Chester county, passed April 5th, 1862 (P. L., 270), provides, that all writs for the commencement of actions in said county shall be made returnable in ten days after the service thereof, and that if the plaintiff shall file his statement, where the ease is a proper one for a statement, as prescribed by said Act, at least five days before the return day, he may enter judgment by default against the defendant at any time after the return day, unless the defendant shall, on or before the return day, file an affidavit of defence, stating the nature thereof. The return day of the writ in the case was April 3d, 1879, that being the tenth day after its service, and judgment by default could not, therefore, be regularly taken until the next day — the 4th. It was, however, doubtless through inadvertence, taken on the 3d.</p> <p>On August 10th, 1885, six years and four months after the judgment was thus taken, the defendant took this rule, to show cause why the judgment thus entered should not be stricken off, based wholly upon the fact that it was thus taken one day too soon. This is resisted by the plaintiff, on the ground that the defendant, by his delay, has waived his right to have the judgment stricken off, and that he has also acquiesced in the entry thus made, and cannot, at this late day, interfere with the judgment and with rights acquired by the plaintiff thereunder. It appears from the records, that an attachment execution was issued on this judgment, attaching, in the hands of the executors of John Harper (grandfather of the defendant) a legacy or share coming to the defendant at a future day. This attatchment execution was issued April 7th, 1879, four days after the judgment was entered, and was served on the garnishee and the defendant on April 11th, 1879. The sheriff’s return shows that it was served on the defendant personally, by giving him a true and attested copy of the writ, and making known to him the contents thereof. This writ of attachment recites the recovery of the judgment on the 3d of April, 1879, and its amount. The defendant, therefore, on the 11th day ot April, eight days after the entry of the judgment, had notice of the date when the judgment had been entered. On April 18th, 1879, another attachment execution was issued on the judgment, attaching moneys in the hands of the other garnishees. This was served on the defendant April 25th, 1879. This writ also recited the judgment as taken on the 3d of April; so that the defendant had again notice, some three weeks after the entry of judgment, of the day on which it was entered. No appearance was entered, or affidavit of defence filed, but the defendant, with knowledge thus brought directly home to him, of the entry of the judgment on April 3d, one day too soon, acquiesced in the judgment thus entered, and in the attachment execution issued thereon and served, and took no steps to interfere therewith, until the taking of this rule on August 10th, 1885, to strike off the judgment. • In addition to this a scire facias was issued on the judgment on March 13th, 1884, and duly served personally on the defendant, Harper. This writ recited the judgment on which it issued, as entered on April 3d, 1879. No appearance was entered, or defence taken, and judgment by default was subsequently entered before the taking of this rule. An attachment execution at the suit of another creditor, was issued on August 4th, 1885, and the same moneys attached; so that while the motion to strike off the judgment in question is made by the defendant, the controversy is really between two judgment creditors, as to which of them shall take the money attached — the creditor in the attachment .issued April 7th, 1879, or the creditors in the attachment issued August 4th, 1885.</p> <p>We shall consider the case, however, as wholly between the plaintiff and the defendant. That a judgment entered as this was is not void but voidable, is, we think, clear. That is absolutely void which the law or the nature of things forbids to be enforced at all, and that is relatively void or voidable which the law condemns as a wrong to individuals, and refuses to enforce against them : Pearsoll v. Chapin, 8 Wright, 15.</p> <p>In Hamer’s Appeal, 5 W. & S., page 473, a judgment entered in the District Court of Lancaster, but on a warrant to confess judgment only in the Common Pleas, was sustained as an actual, though an irregular judgment, and, therefore, that if the defendant did not interfere to abate it, no one else could, unless for fraud or collusion, which was not alleged; and in Drexel's Appeal, 6 Barr, 272, it was held that an actual but irregular judgment, entered on the records of the court, without authority, can only be reversed in a writ of error, or set aside in the court below on motion, but only at the instance of the defendant, and that strangers have no right to interfere with a judgment, except where it is collusive, and that as long as the party injured by the irregularity submits to it, no one else can complain.</p> <p>In Lowber and Wilmer’s Appeal, 8 W. & S., 390, the court say: “But when the objection extends no further than that the judgment upon which the execution has been issued has been erroneously entered or obtained, or the execution erroneously issued thereon, no other person than the defendant therein, or his legal representatives, will be permitted to make it.”</p> <p>This judgment, therefore, was not void, by reason of its being taken one day too soon, but simply voidable.</p> <p>For this irregularity, however, as the authorities cited show, the defendant, if guilty of no laches, is entitled, on notice, to have it stricken from the records of the court. Can this motion prevail at this late day ?</p> <p>The defendant had knowledge when the attachment execution was served upon him, eight days after the taking of judgment, that the judgment was thus erroneously entered, and he had similar knowledge when the second attachment was served, two weeks after the first attachment, yet he took no steps to correct the error, and even allowed the judgment to be revived five years after it had been entered.</p> <p>He knew that the plaintiff relied upon the attachment which had been made to secure the debt due him, but 'laid by for over six years, and until an attachment at the suit of another creditor had issued, or was about to be issued, and then, suddenly waked up to the fact that the judgment of the plaintiff had been erroneously entered, and that it should be stricken off, and the fruits of the attachment be' lost to the plaintiff, and go to another attaching creditor.</p> <p>In Roemer v. Demig, 6 Harris, 482, where execution was issued one day too soon, the court say: “ That acquiescence of the defendant after notice that the writ had issued a day too soon, would conclude him.” In Christian v. Pine Knot Coal Co., 2d Legal Record Reports, 269, the Common Pleas of Schuylkill county held, that where a judgment by default is irregularly entered, it is the duty of the defendant to move to strike it off, or have, it opened, without unreasonable delay, after knowledge that it is entered.</p> <p>In that case something over one year had elapsed after the defendant had knowledge of the judgment, and the' court, by reason of the delay, and no excuse being offered therefor, refused to strike it off.</p> <p>A judgment before a justice of the peace, against a party not served, is illegal and will be reversed. It is said, that in a certain sense, a justice has no jurisdiction in such a case. But a certiorari must be sued out within a reasonable time after the party has knowledge that judgment has been rendered against him, If he does not do so, and allows an unreasonable length of time to elapse before moving to set the judgment aside, or taking out a writ of certiorari, he will be precluded : Rice v. Kitzelman, 1 Ches. Co. R., 174; Christian v. Pine Knot Coal Co., supra.</p> <p>The same principle applies to the case before us. We think the defendant waived the irregularity now complained of, and acquiesced in the judgment, and the process issued thereon for 'its collection, as is shown by his long delay after knowledge of such irregularity without excuses, and his permitting the revival of the judgment without objection, and that he cannot now have the judgment stricken off.</p> <p>The rule to strike off the judgment, and also the rule to stay proceedings on the attachment execution, are dismissed.</p> <p>The defendant thereupon took this writ and assigned for .error the judgment of the court in discharging the rules.</p> <p>— This case presents .the question, whether or not a judgment, taken in violation of the provisions of an Act of Assemblj', is void. It is admitted that the judgment was taken a day too soon, and the only reply to this error which appears upon the face of the record, is the alleged laches of the defendant, by which it is claimed this defect has been cured.</p> <p>The evidence of John Harper shows, that he never knew of this nine- day judgment until about July 25th, 1885; and by what process of tins court, or any court, can this diseased record be made legal, and sound for all purposes?</p> <p>There was no saving grace in subsequent service of attachment executions and writs of scire facias: Westmoreland Bank v. Rainey, 1 Watts, 26; Mellon Assignee v. Guthrie, 1 P. F. S., Ill; Eldred v. Hazlett’s Admr’s., 2 Wright, 32; Dorrance v. Scott, 3 Wharton, 309; Camp v. Wood, 10 Watts, 118; Banks’ Appeal, 10 Out., 71.</p> <p>The Act of Assembly of 1862 is in language that cannot be misunderstood. Under, and by virtue of its provisions, this suit was brought. The Statute fixes the day for judgment. A .variation therefrom makes this judgment absolutely void — void ah initio: Dewart v. Mussen, 4 Wright, 302.</p> <p>There is but one judgment, or alleged judgment, in this case. The writs of scire facias represent an extension or continuation of this entry of April 3d, 1879. If that were void, the processes based thereon fall with it. If the foundation is rotten the whole structure tumbles: Cope’s Appeal, 15 Norris, 297; Van Ormer v. Ford, 2 Out., 178; Dietrich’s Appeal, 11 Out., 177.</p>

<p>1. It is error to allow a hypothetical question which assumes a state of facts not warranted by the testimony either in words, or in substance, to be asked an expert witness.</p> <p>2. Where,the court below neglects to explain to the jury the precise question at issue and calls attention to the evidence of one side only, the judgment will be reversed, for such is not an adequate presentation of the case to the jury.</p>

245. Assumpsit by Seth K. Grim for the use of David K. Grim, Peter 'K. Grim, Seth K. Grim, Jesse Kline and Henrietta Kline his wife, against The Thomas Iron Company, to recover, as stated in the narr., “ the price and value of iron ore mined upon the premises of the plaintiffs, for the royalty of the same.” Plea, non-assumpsit .payment with leave.

318. The record showed the following: January 31st, 1887, a number of residents and voters of Bern township, Berks county, Pennsylvania, presented a petition to the judges of the Court of Quarter Sessions of thé Peace of said county, and filed the same, praying the said court to divide the said township of -Bern into two election districts or precincts, in the manner therein specified, alleging that the same was necessary for the convenience of the voters.

97. Assumpsit by Priscilla Grant and Adam H. Schmehl, administrators of the estate of Bertolette Grant, deceased, against Jacob Kline, deceased, to recover the amount of insurance received by him on a policy of life insurance on the life of the decedent, less the amount of premiums paid to secure and carry said policy and the amount of the debt due him by the decedent. Pleas, non assumpsit, with leave.