Volume 116 — Pennsylvania State Reports

<p>No. 224 January Term 1887, Sup. Ct.; court below, No. 17 December Term, 1885, C. P.</p> <p>On August 24, 1885, viewers were appointed by the Court of Quarter Sessions for Northampton county to assess damages to John Rinek, Thomas Rinek and Henry Rinek, caused by the opening of Eighth street, in the Borough of Easton. The viewers’ report was filed assessing damages against the borough and in favor of the parties named, in $2,432, whereupon the borough appealed from the report and assessment to the Court of Common Pleas. Issue having been joined by statements on the part of the claimants as plaintiffs, and the borough as defendant, secundum regulam, a jury was called on October 26, 1886.</p> <p>On the trial the plaintiffs put in evidence the charter of the Borough of Easton and its supplements, and the several ordinances relating to the opening of streets therein; deed from Frederick Wagner and wife to Jacob Rinek, dated September 23, 1839, recorded; deed from Thomas McKean and wife to Jacob Rinek, dated May 1, 1856, recorded; record of the proceedings in partition in the estate of Jacob Rinek, deceased, showing that by said proceedings the property in question became vested in John Rinek; deeds from John Rinek and wife to Henry Rinek and Thomas Rinek, each for an undivided one third part; whereupon it was admitted by the defendant that by the proceedings in partition in the Orphans’ Court of Northampton county, the property in question became vested in John Rinek, and by him the undivided two thirds interest in it was conveyed to Thomks and Henry Rinek. The plaintiff then proceeded with evidence showing that in April 1885, in pursuance of a resolution of Town Council adopted July 7, 1884, Eighth street of said borough was opened and graded from Ferry street to Lehigh street, with the damages occassioned thereby to the plaintiffs’ property along the line thereof, and rested. Then on motion of defendant’s counsel, court was adjourned and the jury, accompanied by counsel for plaintiffs and defendant, proceeded to inspect the premises in question, plaintiffs’ counsel assenting.</p> <p>A plan of the streets and property affected thereby, is shown by the diagram on page 3, — Spruce Alley being twenty feet, and Eighth street, sixty feet in width.</p> <p>The defendant then proved the record of a deed from Jacob Rinek and wife to Samuel K. Miller, dated April 12, 1861, for “ all that certain lot or piece of ground situated in the West Ward of the said Borough of Easton, beginning at the southeast corner of Ferry and Eighth streets, as laid out in the new plan of said town, thence east 60 feet ..... to said Eighth street, then north along the east line of said Eighth street, etc., ..... containing in front on said Ferry street, etc., also the record of a map of Easton, dated November 7, 1873; which records were offered in evidence but on objection were, for the time being, withdrawn. After evidence then adduced as to the damages caused to the plaintiff’s property by the opening of Eighth street, the following offer was made:</p> <p> </p> <p>Defendant now offers in evidence the records of the Recorder’s office to show that Jacob Rinek, during his lifetime, made conveyances by which he recognized the existence of Eighth street.1</p> <p>Also the official borough map of the Borough of Easton for the purpose of showing the jury that Eighth street had been marked on the borough chart for many years, and that it has the official stamp of the corporation of the Borough of Easton upon it; and that if Jacob Rinek in his lifetime sold any lots on Eighth street, or that if he made any conveyances by which he recognized the existence of Eighth street, that is a fact which in itself dedicates Eighth street to public use; and that these plaintiffs who claim title to this property through Jacob. Rinek are estopped from setting up any claim for damages for the taking of any land for the opening of Eighth street.2</p> <p>Objected to, for the reason that the record of the deed which is offered in evidence is not a record of the conveyance of any part of the property in question ; and for the reason that the grantee in that deed is not a party to this suit nor interested in the result of it; and, generally, that it is incompetent and irrelevant; and that the defendant cannot prove the dedication of Eighth street, from Lehigh to Spruce street, by offering the record of the conveyances of another property situated on that street in evidence, a property not between the same two points, that is, not between Spruce street and Lehigh street; and objected to further, that the borough map appears to have been made in 1873, after the death of Jacob Rinek.</p> <p>By the Court. — The objection is sustained and bill sealed for the defendant.</p> <p>The case being closed on the evidence, the court, W. W. Schuyler, P. J., charged the jury:</p> <p>The undisputed facts are that on May 4, 1885, the authorities of the Borough of Easton opened Eighth street in this borough, between Lehigh and Spruce streets, and that in so doing they took for the purposes of the new street a strip of land belonging to the plaintiffs sixty feet in width by one hundred and ninety-six feet in depth. The present proceeding has been instituted under the Act of Assembly to recover damages which plaintiffs allege they have sustained by reason of this action on the part of the defendant borough.</p> <p>Plaintiffs claim that they are entitled to be compensated in damages to the extent of the value of the land thus taken by the defendant, and we so say to you, subject to the qualification to be presently mentioned. [You have heard the testimony as to the value of the land taken. The witnesses differ widely in their estimates, but it is your duty to reconcile these differences as best you may, and to say what this value was at the time the street was opened, -and your verdict will be for that sum, together with interest to the present time, unless you find that the property of the plaintiffs, which remained after the opening of Eighth street, was benefited by the opening of said street.]3</p> <p>Defendant contends that the opening of Eighth street enables plaintiffs to cut up their remaining property to better advantage, and that its value was thereby enhanced. It is for you to determine how the fact is. [If you find that the remaining property has been benefited by the opening of the new street, you will next find how much, and your verdict will be for the value of the property taken, less the enhanced value of the property not taken, together with interest on the balance from May 4th, 1885, to the present time.]4</p> <p>The jury found in favor of the plaintiffs for 12,482.54. A rule for a new trial was discharged, the court saying:</p> <p>None of the authorities cited by the learned counsel for the defendant go to the length that the sale of a lot described as bounded by a street is sufficient evidence of the dedication of such street to public use, no matter how long the street may be or how many streets may intersect it, and I should hesitate to be the first to announce such a doctrine. In the case in hand Ferry and Spruce streets furnish an outlet to the vendees of Jacob Rinek both ways, and this is all that can fairly be said to have been within the contemplation of the parties. By holding that the dedication extends to all the lots within the same block, it is going as far as there is precedent, and as far, I am of opinion, as the justice of the present case requires. See In re Thirty-ninth St., 1 Hill, 189.</p> <p>1886, November 9, rule discharged.</p> <p>Judgment being entered upon the verdict, the defendant took this writ, assigning for error:</p> <p>1. The refusal of defendant’s offer.1</p> <p>2. The refusal of defendant’s offer.3</p> <p>8. The part of the charge embraced in [ ] 3</p> <p>4. The part of the charge embraced in [ ] 4</p>

No. 59 January Term, 1887, Sup. Ct.; court below, No. 22 September Term, 1884, O. C. .

<p>No. 93 July Term, 1886, Sup. Ct.; court below, No. 67 November Term, 1884, C. P.</p> <p>William Mersber owned a half interest in a leasehold of a slate quarry on the lands of M. C. Hirsch, other parties owning the other half interest, and on October 20, 1883, Mr. Mersher sold his interest to W. P. Krum and B. F. Peters by an agreement under seal containing the following:</p> <p>The party of the first part agrees to sell to the party of the second part one half interest of a certain lease ■which he holds on the property of M. C. Hirsch, situated in Washington township, Lehigh county, Peun., with all the slates on bank .....the said half interest Win. Mersher has granted and sold to the said W. P. Krum and B. F. Peters for a certain sum conditioned for the said sum shall be sixteen hundred dollars, of which sum two hundred dollars is to be paid at the above date and the balance to be paid monthly out of the clear proceeds, that is, after deducting all expenses. And out of the clear proceeds cash in hand he shall receive the balance that is out of the one half. Should the quarry prove a failure that no proceeds should be in hands of the second party, or that they should abandon the quarry, believing that the quarry would not be a paying one or a profitable one to them in their estimation, and if the quarry had not netted any clear profit to the second party at abandoning said quarry, then the second party shall not be responsible for any further payment, and this agreement shall be null and void and of no effect.</p> <p>The purchasers under this agreement paid the cash payment, went into possession with the other owners under a new and substituted lease from the landowner and worked the quarry from October, 1883, to June, 1884, when it was abandoned by all the lessees.</p> <p>In October, 1884, Mersher instituted an action of Covenant against Krum and Peters upon the agreement, assigning as breaches that, although the said quarry was a paying and profitable one, yet the defendants had not worked it and paid the monthly instalments, nor did they abandon the quarry, as provided and covenanted in the agreement, but had surrendered the lease so assigned to them to the lessor, M. C. Hirsch, and kept and retained for their own use all the said property, etc. Thp pleas were non est faotum, covenants performed absque hoc, payment, with notice of defalcation.</p> <p>On the trial, the plaintiff proved the lease and the agreement of sale and followed with evidence tending to show, inter alia, that no payments had been made except the $200 cash payment; that the quarry at the time that it was abandoned might have been worked with profit, but was not worked skillfully when it was worked, and that it was not abandoned in good faith ; but no evidence was produced that any profit was made. The plaintiff being on the stand:</p> <p>Q. What was the value of this property and the machinery on these premises when they 'left and gave up to Hirsch? Objected to.</p> <p>The Court: The plaintiff has offered to show that the abandonment of the quarry by the defendants was not in good faith, and that the quarry was in a condition to have been worked profitably. In addition to that, they propose to show that, when the defendants did abandon the quarry, they sold or carried away a portion of the machinery and personal property, which the plaintiff had transferred to them by the written agreement; and they seek to show the value of the property thus carried away, with a view of recovering for it, in addition to the demand to recover for what the profits were or would have been if the quarry had been properly worked; the plaintiff’s position being that, upon the abandonment by the defendants, the agreement as stated in it was null and void, and that the plaintiff’s right to the quarry, machinery and personal property there were then revived. To this the defendants object as incompetent and irrelevant and not admissible under the pleadings, which objection is overruled, and a bill sealed for the defendants.5</p> <p>A. It was worth $5,000 to any party.</p> <p>The defendants introduced evidence showing that the material was of such a quality that the slates were not marketable; that they had given the quarry a fair trial; that exclusive of the money laid out by themselves for new machinery, their total expenditures exceeded the value of the slate quarried by nearly $2,000, and that, after notice to the plaintiff, the lease was surrendered to the lessor because the defendants believed the quarry could not be operated with profit.</p> <p>The defendants requested the Court to charge that under all the evidence the verdict should be for the defendants, which was refused. 1</p> <p>The Court, Edwin Albright, P. J., charged the jury in part as follows:</p> <p>It was argued by plaintiff’s counsel that there would be a profit if you did not take into account the machinery and labor. In the opinion of the Court that argument is unten able. There was no profit. The plaintiff has not shown that there was any profit, nor does the defendants’ evidence show any profit during the time Krum & Peters worked the quarry. The agreement says out of the profit Mersher is to be paid, and you have the fact that it is not proved there was any profit during the time they worked, and the fact that the agreement was given up. The plaintiff, then, has no claim against Krum & Peters under his own writing, except on one theory, and the question arising upon that theory will be submitted to you.</p> <p>The agreement says that if Krum & Peters should abandon the quarry, believing that the quarry was not a paying one or a profitable one to them in their estimation, and if the quarry had not netted clear profits to the second party at the time of abandoning the said quarry, the second party shall not be responsible for any further payments. The quarry was given up, but not with the consent of .Mr. Mersher. They had a right to give it up under the writing of Mr. Mersher.</p> <p>[The allegation of the plaintiff is that the agreement implies that the quarry was to be worked in good faith; that the quarry might have been worked so as to render a profit. I say to you that when this lease was given up in June, 1884, if it is proved that at that time by ordinary diligence and ordinary business enterprise and capacity it might have been made to pay a profit, Mr. Mersher may recover, because there is implied in this agreement a covenant or understanding that they shall work it in an ordinary workmanlike manner. Mersher’s pay depended upon the profits of the quarry, and therefore the lessees, Krum & Peters, had a right to give up the lease if they in good faith believed it could not be made to pay. The plaintiff says they did not give it up in good faith ; that they gave it up from some other motives, and alleges that at the time the lease was given up the quarry might have been worked with profit by the defendants. If that is proved the plaintiff may recover.] 2.....</p> <p>If. the material in the quarry was as bad as the defendants say it is, very likely you will come to the conclusion they could not work the quarry with a profit. This the plaintiff denies, and says that the stone there was as good as the average in the region where the quarry was located, and that quarries there could be operated with a profit. The lease was given up in June, 1884. If the plaintiff has satisfied you that the quarry, when the lease was given up, was of such a kind and the material was of such a quality, and the quarry itself was of such a character as to be workable with profit, the plaintiff can recover. If that is not shown, the plaintiff has no case. If you consider all the evidence on that question, and you are convinced that the quarry could have been worked with profit at the time it was given up, the plaintiff can recover, and in that event he may recover all that is owing to him under the stipulation to give him $1,600, $200 of which he already has. It is not enough for the plaintiff in order to recover, to show that the defendants'gave up the quarry and nothing more, because they reserved by the writing the right to give it up. [The plaintiff can recover on the ground, and on that ground only, that he has satisfied you that when they gave up the lease the quarry might have been worked with a profit.] 3 ... .</p> <p>[You will take the case and inquire as to the main question, whether the plaintiff has shown that the defendants, when they gave up the lease, by ordinary business enterprise could have worked the quarry with a profit, and that it was not given up in good faith, and if you find that issue in favor of the plaintiff, he will be entitled to your verdict for whatever may appear to be due under the explanations I have given to you.] 4 . . . .</p> <p>To this charge and the answers to their point the defendants excepted, and on verdict and judgment for the plaintiff they took this writ, assigning for error:</p> <p>1. The answer to the defendants’ point.1</p> <p>2. The part of the charge in [ ] 2</p> <p>8. The part of the charge in [ ] 3</p> <p>4. The part of the charge in [ ] 4</p> <p>5. The admission of plaintiff’s offer.5</p>

<p>No. — January Term, 1887, Sup. Ct.; court below, No. 41 September Term, 1884, C. P.</p> <p>This was an action of Assumpsit, (originally tried before a Justice of the Peace and on appeal in the Court of Common Pleas), by William Botts against Peter S. Knabb and Sarah Knabb, his wife. After the appeal to No. 41 September T. 1884, court below, a declaration was filed, set out in part below, and defendants pleaded non assumpsit and payment, with leave, &c. While the cause was at issue, the death of Peter S. Knabb was suggested and Sarah Knabb, his administratrix, substituted. The declaration averred:</p> <p>“ For that whereas the said Sarah Knabb, heretofore to wit, about the first day of October, A. D. 1882, at the county aforesaid, being then and there the owner in fee simple of a certain messuage, tenement and tract of land situate in Oley township, county aforesaid, containing seventy acres, more or less, agreed to and with the said plaintiff, &c., . . . . And whereas the said plaintiff and his wife during the month of October, 1882, worked on said farm seventeen days, and the said plaintiff, with horse and wagon, during the months of December, 1882, and January, February and March, 1883, worked, on said farm sixty-nine days, said work having been done at her, the said Sarah Knabb’s, request, in and about the management of her said separate estate, and necessary for the preservation, enjoyment and use and profit of the said separate estate by the said Sarah Knabb. By means whereof the said Sarah Knabb then and there became liable to pay to the said plaintiff,” etc.</p> <p>On the trial before a jury, Edwin Albright, P. J., it was admitted that Sarah Knabb, the wife of Peter S. Knabb, was the owner in her own right of a farm in Oley township, Berks county, containing about 80 acres, and William Botts, the plaintiff, testified that he and his wife husked corn for Mrs. Knabb in the month of October, 1882, and, during the months of December, 1882, and January, February and March, 1883, he worked with Ms horse hauling hay and straw and corn-fodder and hauling in her corn, potatoes and wheat; that he had been employed by Mrs. Knabb, and was to have $1.25 per day for the work done by himself and wife, and $2.00 per day when working with his horse, and he was to pay the toll. His entire bill was $159,25, upon which he had received $20. The plaintiff then rested, when the defendant moved for a compulsory nonsuit, on the ground that the plaintiff’s claim and proof did not come under the exceptions of the statute of 1848, and he could not recover, the defendant having been a married woman at the time Avhen the alleged contract was made. This motion was allowed and nonsuit entered, and subsequently a motion to take off the nonsuit was overruled. The plaintiff then took this writ, specifying as error the entry of the judgment of nonsuit and the refusal to set that judgment aside.</p>

<p>No. 442 January Term, 1887, Sup. Ct.</p> <p>On October 12,1880, Dr. Ludwig Elentje was the defendant in two pending actions instituted by Adelaide Stumpf ; one a criminal prosecution in the Court of Quarter Sessions of Carbon county for fornication and bastardy; the other an action for breach of promise to marry, in the Court of Common Pleas. On that date the following agreement was executed:</p> <p>This agreement made this 12th day of October A. d., 1880, between Adelaide Stumpf, of the one part, and Ludwig Flentje, of the other part, witnesseth: Whereas, the said Adelaide Stumpf has brought a prosecution against said Flentje for fornication and bastardy, which said prosecution is now pending in the Court of Quarter Sessions of Carbon county: And whereas, the said Adelaide Stumpf has also brought a suit against said Flentje in the Court of Common Pleas of said county, for breach of promise of marriage, which said suit was entered on the 11th of October, 1880, and is now pending.</p> <p>Now, it is agreed between the parties as follows: The said Adelaide agrees to take and deliver her present small child into the care of Dr. G-raul, at Danville, Pennsylvania; and also agrees to discontinue her present prosecution against said Flentje for fornication and bastardy and not to appear against him therein; and also further agrees to settle and discontinue the said suit of breach of promise of marriage by her brought against said Flentje in said court and acknowledges to have received full satisfaction and settlement of the same, and that she will make no further claim or demand therein against said Flentje, but hereby releases and absolves the said Flentje from all claims and demands that she may have or has had therein.</p> <p>In consideration whereof, the said Flentje agrees to pay all the Record costs incurred in said prosecution and said breach of promise case, to relieve the said Adelaide from any cost or expense in the support and maintenance of said child, and to see that it is well taken care of, and further to pay to said Adelaide thirty dollars in cash, in full settlement and satisfaction of all claims and matters between them.</p> <p>In witness whereof the said parties have hereto set their hands and seals the day and year first above named.</p> <p>Ludwig Flentje, [seal.]</p> <p>Witness, Adelaide Stumpe, [seal.]</p> <p>F. Bertolette. )</p> <p>Richard Kieeer. \</p> <p>In pursuance of this agreement the child was taken to Dr. Graul, and was by him placed in the care of Mrs. Catharine Stoll whose bills rendered for the maintenance and clothing of the child were paid by Dr. Flentje during his lifetime.</p> <p>Dr. Flentje died on November 21, 1882, leaving a will dated October 14, 1882, with a codicil dated November 7, 1882, in neither of which he made any provision for the performance of said agreement for the support and maintenance of said child. On September 11, 1883, an account of the executors of said will was filed, showing a balance due the estate which was referred to Mr. Joseph Kalbfus, as an auditor to make distribution. At the hearing before the auditor, Miss Stumpf appeared by attorneys and claimed support and maintenance for the said child, under the agreement above quoted. The auditor, after having received evidence of the cost of supporting a child of the age of the one in question, and hearing the parties, found and reported as follows :</p> <p>First. That the agreement proven was a valid contract, having been entered into in consideration of the settlement of the suit for breach of promise to marry, as well as the case charging fornication and bastardy, and it secured a maintenance for the child, and was not therefore the simple settlement, or stifling of a criminal prosecution; that it was also continuing and bound the executors of the decedent, although they were not expressly bound by its terms.</p> <p>Second. That, as the agreement specified no definite time during which the support was to continue or the amount of money to be advanced for that purpose, and as a parent would be liable for the support and maintenance of a child during its minority, and as in this agreement the mother was to be protected and relieved from such liability for support, the intent and purpose of the agreement were to cover at least one year of the minority of the child, or until its death, should it die before reaching the age of twenty-one. years; also, that the terms, “ and to see that it is well taken care of,” meant and were intended to secure such a reasonable support according to the means of Dr. Flentje, as his habits of life would suggest. “ Your auditor, considering the evidence as produced and his own experience, the fact that, as this child grows older it will in all probability by its own labor be enabled to- supply its increasing needs, finds that the sum of three thousand dollars should be retained in the hands of these executors, from the interest or principal of which the fixed sum of two hundred dollars shall be paid annually for the maintenance and support of said child until it arrives at the age of twenty-one years, or until its death, should it die before that time.”</p> <p>To a distribution based upon these findings of the auditor, the executors and devisees under the will of Dr. Flentje excepted, whereupon the Orphans’ Court, S. S. Docher, P. J., aftet hearing, on January 16, 1885, filed an opinion saying :</p> <p>“ I take it, he assumed the duties of a parent by his contract, and whether the obligation was to continue during the whole period of the child’s infancy, if the testator so long lived, is not now material to determine, because the testator having died, his duty and obligation of support like that of a parent of a legitimate child, ceased at his death. So long as he lived, the contract was binding on him in his relation of parent created by the contract. If the child had been the legitimate issue of the testator, he could have disinherited it.” 1</p> <p>By the decree made, the claim o E Adelaide Stumpf was disallowed and the report referred back to the auditor with directions to make distribution accordingly. The auditor then made a second report with distribution in accordance with the directions of the opinion and decree. Exceptions filed to this second report by Miss Stumpf were dismissed, and the report confirmed. This appeal was then taken by Miss Stumpf, who specified that the court below erred (1), in not confirming the auditor’s first report, and in referring it back to the auditor with directions to disallow appellant’s claim; (2), in dismissing the exceptions of the appellant to the second report and in confirming- that report; (8), in ruling as in that part of the opinion filed January 16, 1885, which is quoted supra.1</p>

<p>No. 272 January Term, 1887, Sup. Ct.; court below, No. 122 October Term, 1882, C. P.</p> <p>Reuben Fenstermacher, a merchant of Lehighton, brought suit before a justice of the peace against Dallas Xancler and Mary Ann, Ms wife, for provisions, clothing, etc., for the use and support of herself and family, and glass, nails and hardware for repairs to her dwelling-house, sold to the wife, and on November 28,1882 obtained a judgment against both defendants. On December 19, 1882, upon a transcript from the justice’s docket, judgment was entered in the Court of Common Pleas. On September 10, 1885, a certificate from the justice of the issuance of an execution and its return “ nulla bona ” was filed and an execution against the husband was issued to the sheriff and by him returned “ nulla bona." Then, upon an alias fi. fa. against both defendants, the real estate of the wife was levied upon and condemned and a venditioni exponas issued to sell the same. Thereupon Mary Ann Xander, the wife, filed her petition, setting out (1) That at the time the goods were purchased, suit brought and judgment entered, she was a married woman, the wife, of Dallas Xander, who has since died leaving no real estate; (2), That the debts on which the judgment was obtained had not been contracted by herself nor by any one authorized by her; (3), That the articles in the account were not necessaries for the support of herself and family, nor for the improvement and on the credit of her separate estate; (4), That the judgment did not show that said debts were contracted by her or by her authority, nor that the same were necessaries, etc., nor that the articles were furnished upon her separate credit; praying that her name be stricken from the record of said judgment, and for' a rule to open. December 2, 1885, rule granted, proceedings stayed in the meantime. •</p> <p>The transcript from the justice showed:</p> <p>Now November 27, 1882, parties appear; plaintiff (sw) claims $226.99 book account for necessaries furnished to the wife and at her request and direction, for the use of herself and family, and for the improvement of her separate estate.. Defendant Dallas Xander admits plaintiff’s claim. Defendant Mary Ann Xander (sw) also admits plaintiff’s claim, but denies of having bought the said necessaries herself.</p> <p>Having heard the parties, their proofs and allegations, adjourned to the 28th, 10 A. M., for want of time to decide.</p> <p>And now November 28, 1882, judgment publicly for the plaintiff and against the defendants for two hundred and twenty-six dollars and ninety-nine cents and costs of suit.</p> <p>On argument, June 18, 1886, the court, S. S. Dkeher, P. J., filed the following opinion and decree :</p> <p>As the record shows that Mary Ann Xander was a married woman when judgment was obtained, and when the necessaries were furnished, the question is, whether the record shows sufficient facts to make the separate estate of the wife liable.</p> <p>The plaintiff’s claim is for necessaries furnished to the wife, and at her request and direction, for the use of herself and family, and for the improvement of her separate estate. It does not appear that such necessaries were furnished upon the wife’s separate credit. The pleadings, as well as the evidence, must show that the goods were furnished on the wife’s separate credit: Berger et ux. v. Clark, 79 Penn. St. 340; Hoff v. Koerper, 103 Idem 396 ; Sawtelle’s Appeal, 84 Idem 306.</p> <p>The plaintiff’s claim is also for necessaries “for the improvement ” of the wife’s separate estate. How much of the claim was for the improvement of her estate, and what the necessaries for such improvement, the record does not show.' The decisions are that a married woman is liable for repairs to her separate estate made at her request, and necessary for its preservation and enjoyment: Lippincott v. Leeds, 77 Penn. St. 420; but she is not liable for a debt contracted (money borrowed) for the avowed purpose of improving her separate estate unless it is shown that the money was applied to that object: Heugh v. Jones, 32 Penn.St. 432. I think the record fails to show the essential fact that the goods were furnished on the separate credit of the wife</p> <p>The question of the power of the Court to strike off a judgment entered against a married woman on the transcript of* a justice is raised. We held the case of Balliet v. Andrews and wife, No. 93, January Term, 1882, that we had the power, and made the rule to strike off the judgment absolute. Other Courts had held differently, but did what was substantially equivalent by staying execution indefinitely: Buffington v. Hay, 1 Pears. 90. Since the Act of 1885, P. L. 160, it has been held that under the Act the Court has power to strike off such judgment: Collins v. Brower, C. P., No. 2, Phila., 1 Pa. C. C. R. 261; Campbell v. Evler, C. P., Dauphin County, Idem 394. If we were in error in ruling as we did in Balliet v. Andrews, we think now, since the Act of 1885, there can be no question as to our power to strike off the judgment. We do not however propose to do so, but will simply make an order staying execution against the wife. From such order a writ of error lies to the Supreme Court: Patterson v. Patterson, 27 Penn. St. 40; Pontius v. Nesbit, 40 Idem 309.</p> <p>And now, to wit: June 19, 1886, it is ordered that the plaintiff be and is hereby enjoined from issuing execution process against the said Mary Ann Xander. To winch ruling and judgment the plaintiff by his counsel excepted, and at his request a bill of exception is sealed.</p> <p>The plaintiff thereupon took this writ, assigning for error the said ruling and decree.</p>

<p>No. 337 January Term 1877, Sup. Ct.; Court below, No. 291 May Term 1886, C. P.</p> <p>The proceeding in the Court below was a case stated wherein John A. Codding was plaintiff and the county of Bradford defendant, giving the facts following:</p> <p>The plaintiff is a justice of the peace in and for Bradford county, Pennsylvania, residing at Towanda borough in said county, duly commissioned and qualified.</p> <p>That, on January 6, 1886, the plaintiff presented to the commissioners of said county a transcript of a criminal proceeding had before him, hereto attached, and hereby made a part of this case stated, showing a bill of costs, itemized, as follows, viz.:</p> <p>Docket entry, . . . • . . . .20</p> <p>Complaint, ....... .40</p> <p>Warrant, ....... .40</p> <p>Commitment, . . . . . .40</p> <p>Subpoenas,.......60</p> <p>Hearing,........40</p> <p>Recognizances, ..... 1.00</p> <p>Continuance, ...... .10</p> <p>Conviction, ...... .50</p> <p>Discharge, ....... .25</p> <p>Transcript, . . . . . . ■ .40</p> <p>making a total, justice’s costs, .... #4.65 — and showing a bill of constable’s costs as follows, viz.:</p> <p>Const. Dimock, ..... $2.48</p> <p>It is also agreed that the above stated charge for “subpoenas, .60,” is for one subpoena on part of commonwealth, 30 cents, and one subpoena on part of the defendant, 30 cents.</p> <p>It is also agreed that the above stated costs were demanded of the said commissioners on the said 6th day of January, 1886, and that the said Matt. Merritt, defendant in said criminal proceedings, was discharged from 'the county jail on December 26, 1885, by direction of the plaintiff to the jailer of said county.</p> <p>If, in the opinion of the Court, the county of Bradford is liable for the costs of the justice under the foregoing facts, or for any of the items of the said costs, and not liable for other items, then judgment to be entered for the whole amount of said costs, or for such part thereof, as in the opinion of the Court the said county is liable for, with costs. If, in the opinion of the Court, there is no liability on the part of the defendant for all or any portion of said costs, then judgment to be entered for the defendant.</p> <p>Either party to have the right of appeal or writ of error to the Supreme Court.—</p> <p>The transcript referred to and made a part of the case stated showed that one Matt. Merritt had been brought before the justice on a warrant issued upon an information charging the larceny of 400 pounds of coal, the property of the Towanda Coal Company, and proceeded: *</p> <p>November 23, 1885, defendant brought up, and the complaint being read aloud in his hearing he pleaded “ Guilty.” Hearing continued to November 25,1885. And now, November 25, 1885, parties appear, and said Matt. Merritt is convicted of larceny, as set forth in said complaint. Whereupon he is sentenced to pay a fine of one dollar and costs of prosecution, to restore the goods stolen or the value thereof to the owner, if not already done, and to undergo an imprisonment in the county jail thirty days, and to stand committed until this sentence is complied with.—</p> <p>The bill of costs as shown in the case stated was taxed upon the margin of the transcript.</p> <p>On argument, the Court, P. D. Morrow, P. J., on April 5, 1886, delivered an opinion:</p> <p>There is no Act of Assembly expressly making the county liable for costs of the justice. The claim is based only upon inference, and we think this is not enough. The county is liable only where it is so made by the statute. The law relating to payment of costs in certain cases relates to cases where indictments have been found and trial had in the Quarter Sessions. Because,- in cases of conviction before a justice, tbe sentence is to have the same effect as if pronounced by the Court of Quarter Sessions, does not make the county liable, for the Act of 1860 and of May 11, 1874, applies to costs on indictments: Crawford Co. v. Barr, 92 Penn. St. 359. And now, March 31, 1886, judgment for the defendant upon the case stated.</p> <p>Plaintiff excepts.</p> <p>Thereupon the plaintiff below took this writ and assigned for error the judgment of the Court.</p>

No. 262 January Term 1887, Sup. Ct.; Court below, No. 1069 June Term 1885, C. P. This was a bill in equity in the Court of Common Pleas No. 4, Philadelphia county, to enable… Held: first, that the power of councils was exhausted by the first ordinance, the city having exercised its veto power given by the Commonwealth; and, second, that the conditions coupled with the assent contained in the second ordinance were at variance with the terms of the charter, and therefore void.

<p>No. 80 July Term 1886, Sup. Ct.: Court below, No. 303 March T., 1885.</p> <p>This was an Ejectment originally before a magistrate under the landlord and tenant act of 1863, and, on appeal, in the Court of Common Pleas.</p> <p>On November 11, 1878, Herman Kroll (as the agent for his wife Maria Kroll,) and Alonzo L. Jones, executed a lease of which the portions that are material in this case are as follows, the parts in Italics being in writing, the other parts printed :— This Agreement witnesseth, That Herman Kroll, of the City of Philadelphia, doth hereby let unto Alonzo L. Jones, of the same place, that four-story bride house, No. 114 North Sixth Street, for plumbing, gas, and steam-fitting business, from the first day of December, 1878, at the rent of six hundred dollars per annum, payable monthly when due, which said rent so reserved, the said lessee agrees to pay regularly as it may fall due, or within five days thereafter; in default of which the lessor may, without notice, re-enter upon and take possession of the premises, or at his option, enter judgment against the lessee, or any sub-tenants, in any action of ejectment to be brought to recover possession of the premises, withojit appeal, writ of error, or stay of execution; and for confessing said judgment this shall be the warrant of any person......</p> <p>It is hereby further agreed, that if the above-name Alonzo L. Jones should continue on the Ubove-described premises after the termination of the above contract, then this contract is to continue in full force for another year and so on, from year to year until legal notice shall be given for a removal.</p> <p>It is hereby understood and agreed to that if the above-named Alonzo L. Jones should continue on the above-described premises after the temination of the above contract, then he shall have the privilege of staying there for another five years at the above-fixed rent per annum.</p> <p>In witness whereof,.....</p> <p>On August 29, 1884, the husband of the lessor having died, Mrs. Kroll, the owner, served upon the lessee a notice to quit the premises upon December 1, 1884, and on January 6, 1886 began proceedings before a magistrate to recover possession under the act of December 14, 1868, P. L. 1126. An appeal from the magistrate’s judgment in favor of the lessor was entered in the Court of Common Pleas, and an issue raised by narr. in ejectment and plea of not guilty.</p> <p>On the trial before M. Arnold, A. J., after the plaintiff’s case was closed, the defendant was called in his own behalf in chief and was asked to state all that occurred between him and Herman Kroll, the agent of the plaintiff, when the lease was executed, as to the length of time or the term through which his tenancy was to run; to which question the plaintiff objected, which objection was overruled and exception given to the plaintiff. The defendant then testified: “I hired the place for five years with the privilege of staying there five years in addition to it. I said I would not take it for less than five years at first, with the privilege of five more. I said so to Mr. Kroll at the time and he put the additional clause in the lease,.....” On cross examination:..... “I don’t remember if Mrs. Kroll was present. I couldn’t move there unless a long lease was made to me ; it would cost me too much money to move my machinery.” The defendant’s case being closed, the plaintiff was called in her own behalf in rebuttal, and without objection testified; “ I took Mr. Jones to the store to Mr. Kroll; the lease was drawn at the store; he wanted, the house for one year to try, with the privilege of ten years. I said five years are long enough. The agreement was made for one year, with the privilege of five years more.....”</p> <p>A formal bill of exceptions filed after verdict showed that the defendant requested the court to charge the jury upon certain points (found with the 7th assignment of error) and the Court did not charge upon them as requested, saying that they had been covered by the general charge, which was excepted to and was as follows:—</p> <p>[After stating the nature of the action and general terms of the lease] : If there were nothing else in this lease, I would say it was a lease for a year; but it contains other clauses. The first clause is: If Jones continues after the expiration of the term, he may continue for another year, and so on from year to year. This shows a yearly letting. Then by another clause he has the privilege of staying another five years. What, then is the extreme length of his term and option ? If the first term was for one year, with the privilege of another five years, he has had that. If the lease was not for one year, but for five years, with the privilege of five years more, he has been prematurely warned out. Because of ambiguity in the lease I have admitted testimony to explain it. Jones says he hired the place for five years, and would not have taken it unless for five years, with the privilege of five years more. If you find that the term was for one year, with the privilege of five years, you will find for the plaintiff. If you find the term was for five years, with the privilege of another five years, then this suit is premature, and you will find for the defendant. I leave it to you to say, upon the lease and the extraneous evidence, what the term was, whether of one year, with the privilege of another five years, or five years, with the privilege of another five years.—</p> <p>The jury found for the plaintiff for the possession, and damages for detention in $716.66. A rule for anew trial was then allowed, which was afterwards discharged, the court filing the following opinion:—</p> <p>The plaintiff leased a house- to the defendant, “ from the first day of December, 1878, at the rent of $600 per annum, payable monthly.” It was agreed that on the expiration of the term the property should be surrendered in as good order as it then was, reasonable wear and tear excepted. By another clause in the lease it was further agreed that if the defendant should continue on the premises, “after the termination of the above contract, then this contract is to continue in full force for another year and so on, from year to year, until legal notice shall be given for a removal.” By a subsequent clause it was agreed that if the defendant should continue on the premises “ after the termination of the above contract, then he shall have the privilege of staying another five years, at the above fixed rent per annum.” Notice having been given to the defendant to quit on December 1, 1884, he refused to comply, whereupon this action of ejectment was commenced. A verdict was rendered for the plaintiff. The. defendant now moves for a new trial, and the question is, what was the duration of the lease?</p> <p>The construction of this lease is for the court. The ambiguity as to the duration of the estate, is patent and not latent. There is enough on the face of the paper to enable us to settle the doubt which has been raised, without the aid of extrinsic evidence.</p> <p>A lease for no determinate length of time, but by which an annual rent is reserved, payable half-yearly, quarterly, monthly, or in any other aliquot proportions, is a lease for a year: Lesley v. Randolph, 4 R. 123; Hey v. McGrath, 81 Penn. St. 310; Richardson v. Langridge, 4 Taunt. 128; The King v. Herstmonceaux, 7 B. & C. 551; and a demise for a monthly or weekly rent affords a presumption of a monthly or weekly tenancy: Hollis v. Burns, 100 Penn. St. 206; Huffel v. Armitstead, 7 C. & P. 56. The first term in the lease before us was for one year. The words “ another five years ” in the subsequent clause do not overcome the rule of law in this respect, because another five years might follow as well upon another and prior term of one, two or three, as of five years.</p> <p>It is contended, however, by the learned counsel of the defendant, that a tenancy “ for one year, and so on from year to year ” (which Woodfall in his work on Landlord and Tenant, at page 202, says is frequently done by mistake), is a tenancy for two years at least, and cannot be determined at the end of the first year. It is true that such rulings have been made in England, but there are other and more numerous decisions the other way. In a settlement case, in order to piece out a term for a year so as to give a pauper a settlement, it was held that a lease for six months, and so on from six months to six months, until six calendar months notice is given to quit, is a tenancy ior twelve calendar months at least: Regina v. Chawton, 1 Q. B. 247. How much influence the benevolent object to be attained had in the result we do not know. However, the judgment was followed in Doe dem. Chadborn v. Green, 9 Q. B. 658, and there are some earlier cases to the same effect. On the other hand, it was held that a tenancy from year to year may be determined by either party at the end of the first or any subsequent year, unless the parties use expressions showing that they contemplated a tenancy for two years at least: Doe dem. Clarke v. Smaridge, 7 Ad. & El. N. S. 957; Thompson v. Maberly, 2 Campbell, 573. Other decisions on both sides of this question may be found cited in Lesley v. Randolph, supra, by Mr. Justice Kennedy, who adopted the ruling of Lord Chief Justice Holt in Dod v. Monger, 6 Mod. 215, that a lease for a year and so from year to year, is a lease binding but for one year, and that may now be considered the rule in this state. It was applied and enforced, although the question was not considered in McGregor v. Rawle, 57 Penn. St. 184.</p> <p>Besides, this is not a lease for a year and so on from year to year. It is a lease for one year with an agreement that if the tenant should continue on the premises after the first year, then the lease should be in force for another year and so on from year to year. The mistake which Woodfall says is frequently made was not made here.</p> <p>At the trial the defendant was permitted to give evidence to show that the first term was to have been five years. This was an error, but it is one of which the defendant cannot complain. The verdict of the jury is founded upon the proper construction of the lease, such as the court now puts upon it.</p> <p>The defendant was tenant of the premises for one year, with the option of continuing from year to year for another five years; and having enjoyed all that his option gave him, the plaintiff is entitled to the possession of the premises.</p> <p>Rule discharged.</p> <p>Judgment having been entered the defendant then took this writ,, specifying that the court erred:</p> <p>1, 2, 8. In submitting the construction of the lease to the jury.</p> <p>4, 5, 6. In the instructions to the jury, as to the length of the term under the lease, and declining to charge that the verdict should be for the defendant.</p> <p>7. In refusing, while saying that the general charge covered them, either to affirm or deny the defendant’s points, which were as follows:</p> <p>1. The lease given in evidence by the plaintiff must be so construed as to make a term of five years from the date thereof, with the privilege to the defendant of continuing as a tenant upon the premises therein described, “for another five years; ” and the plaintiff has no cause of action. The verdict must, therefore, be for the defendant.</p> <p>2. In the granting clause of the lease, material words defining the term of the demise appear to have been omitted, and the lease must be construed as if such words were inserted, and so as to give effect to the subsequent clause, which gives to the defendant “ the privilege of staying there for another five years.” The verdict, upon such construction, must be for the defendant.</p> <p>3. The grant or demise of the term “ from the first day of December, 1878, at the rent of six hundred dollars per annum,” is without limitation or termination, and the same must be read and construed in connection with the clause which provides for. the privilege of “ another five years; ” and the verdict must be for the defendant.</p> <p>4. The lease must be construed in favor of the grantee or lessee and against the grantor or lessor, and so as to give effect to every beneficial intendment in favor of the lessee. It must therefore be construed as creating a term of ten years, and the jury must find a verdict for the defendant.</p> <p>5. Upon any construction of the said lease, the defendant was entitled to have and maintain possession thereunder for a term at least of seven years. The notice to quit on the 1st of December, 1884, and proceedings upon the same by the plaintiff, were premature, irregular and void, and the verdict must be for the defendant.</p>

<p>No. 117 January T. 1887, Sup. Ct.; Court below, No. 580 March T. 1884, C. P. in Equity.</p> <p>The proceeding in the court below was by a bill filed by Louisa Duraind, trustee for Mary, May, Edward, Joseph, Julia F. and Teressa Duraind, against George L. Dych, administrator of the estate of Marie F. Duraind, deceased, and Josephine Duraind, a sister of deceased, F. A. Duraind, Charles E. Lombard and Joseph E. L. Acosta (children of a deceased sister). After answer and replication, Mr. William Kelly was appointed Examiner and Master, and the facts of the casé and the question raised sufficiently appear from his report, which after matter introductory proceeds:—</p> <p>This was a bill in equity, filed by the plaintiff against the defendants, to compel George L. Dych, administrator of the estate of Marie F. Duraind, to deliver to the plaintiff a certain deed purporting to have been made and executed by the said Marie F. Duraind in her lifetime to the said plaintiff as trustee, and to enjoin all the defendants from interfering with the control of the premises mentioned in said deed.</p> <p>The facts, as they appear from the testimony, are as follows:</p> <p>Marie F. Duraind was the owner in fee of a lot of ground and messuage, situate at the northeast corner of Twelfth street and Sheaf’s alley, in the city of Philadelphia. In the early part of August, 1879, she called upon Henry McMiller, Esq., a member of the bar, who for a number of years had been her counsel, and requested him to draw a deed for the above mentioned premises, conveying the same to Louisa Duraind, in trust for her six children, they being the children of James Duraind, a deceased brother of the said Marie F. Duraind, and in said deed reserving to the said Marie F. Duraind the “legal right to collect the rents, issues and profits of the said property for her own use during life, and at her decease the said property to be held for said children by said trustee during minority, and when they arrive at full age the fee simple to vest in them absolutely as tenants in common.” Mr. McMiller, in pursuance of the instructions so given him, prepared the deed, and upon the eighth day of August, 1879, handed it to the said Marie F. Duraind, who, upon the same day, went before a notary and acknowledged the deed. The consideration named in the deed was the sum of §10,500, but there was no allegation on the part of the plaintiff that the consideration had been paid, and the receipt upon the deed was unsigned. Mr. McMiller also testified under objection, that the grantor stated to him that her object in making the deed was that, in case of her death, “ she wished all of her property to go to the children of her deceased brother James;” and, further, “that Josephine Duraind, her sister, had treated her badly, and she was determined that she should have none of her property if she died prior to Josephine.” After the grantor acknowledged the deed, she retained possession of it until the time of her death, which occurred on the thirty-first day of January, 1884, whilst on her return to Philadelphia from the South where she had been sojourning. The “ deed ” was found in her trunk at the Pennsylvania Railroad station at Broad and Market streets, Philadelphia. It is admitted by counsel for plaintiff that there was no actual manual delivery of the deed for the premises. Louisa Duraind, the trustee, and her children were, at the time of the acknowledgment of the deed, residing in the city of San Francisco, California, and have since continued to reside there, and it does not appear from the testimony that any of the parties interested in the deed had any knowledge of its existence until after the decease of the said Marie F. Duraind, tbe grantor, when it was found in her trunk as before mentioned. It appears from the testimony that, at the time the deed in question was prepared by Mr. McMiller, another deed was drawn by him between the same parties and upon the same trusts, and in pursuance of instructions from the said Marie F. Duraind; this last mentioned deed was for a property at Jenkintown, Pennsylvania, and was executed and acknowledged by the grantor before the same notary, on the same day and in the same maimer as the deed in question. This deed also appears to have been retained in the possession of the grantor, and was found in her trunk when it was opened as before mentioned. This deed, when found, was torn in half, and in this 'mutilated condition was produced before me. It was further shown by the testimony that, after the execution and acknowledgment of the deed above mentioned for the property at Jenkintown by the said Marie F. Duraind, she sold and conveyed the said property, in her own right as her own property, and received the consideration therefor, and the proceeds of said sale are now deposited in her own name in a savings institution in Philadelphia.</p> <p>It is admitted by counsel for plaintiff that the deed in question cannot be regarded as a testamentary writing, and, if supported, it must be as a “ deed,” and to take effect as such.</p> <p>The only question, therefore, is whether the instrument in question is such a deed as passed the title to the trustee named therein. It appears to possess all the requisites of a deed with the exception of one, to wit, delivery. It is not contended by either side that the consideration named in the deed was ever paid or intended to have been paid; the conveyance was therefore voluntary, and the case presented is not one of a party seeking to enforce a delivery on the ground that the consideration money had been paid......</p> <p>The case in question so strongly resembles.that of Critchfield v. Critchfield, 24 Penn. St. 100, and the law, as held in that case, is so clearly applicable to the facts in the present case that, in the opinion of the Master, it is ruled by it.</p> <p>Counsel for plaintiff relied strongly upon the formal acknowledgment of the deed, made by the grantor before the notary, as constituting a valid and sufficient delivery; but in this case, as in that of Critchfield v. Critchfield, the presumption of delivery is rebutted by the fact that the grantor held and retained the deed in her own possession. The testimony of the notary, before -whom the acknowledgment was taken, was that the grantor came before him and simply acknowledged the deed, and there was no evidence to show that the grantor had at any time parted with the custody and possession of the deed. The fact that the grantor sold the Jenkintown property, after having made and acknowledged the deed for the same to the plaintiff, shows very conclusively that the grantor did not intend the acknowledgment of the deed in question to operate as a delivery.</p> <p>Under the law and facts as above stated, the Master finds that the deed for the premises in question was never delivered, and is, therefore, inoperative to vest title in the trustee therein named. The Master, therefore, suggests to your Honorable Court that a decree be entered dismissing the bill.—</p> <p>The plaintiff below excepted to this report in that the Master erred (1) in finding that the deed for the‘’'premises in controversy was never delivered, (2) in finding that the case was ruled by Critchfield v. Critchfield, and (3) in suggesting a decree dismissing the bill. The exceptions were then argued, dismissed and the Master’s report confirmed, the Court, D. Newlin Fell, A. J., delivering an opinion which, after stating the facts as found by the Master, proceeded:—</p> <p>Excepting the reservation in the deed, this case does not differ materially from Critchfield v. Critchfield, 24 Penn. St. 100. In that case a father executed a deed for land to his son, but retained the deed in his possession until his death. The son had no knowledge of the deed, which had not been' recorded until it was found among his father’s papers. Notwithstanding evidence that the father had said to a stranger that he had given the land to his son, that he would keep the title during his life, but that the son would get the land after his death, it was held that the intention of the grantor that the deed should be delivered after his death was insufficient, and no title passed. It was urged upon the argument of the case before us that, as the grantor had reserved an interest, she had a motive for retaining the deed, and that its retention by her was not inconsistent with the belief that she regarded it as a completed instrument, and Scrugham v. Wood, 15 Wend. 575, and Louverbye v. Arden, 1 Johns. Ch. 240, were cited in support of this view. The facts in Serugham v. Wood are very similar to those of the case under consideration except that the deed was acknowledged by the trustee and recorded. A father in that case conveyed his property in trust for the benefit of his children, he to possess and enjoy the premises during life to enable him to apply the proceeds, to their support and education. The deed was signed by the grantor and the trustees, acknowledged by all the parties, recorded and after his death found among his papers. It was held to be valid. In Louverbye v. Arden, it was held by the Court that “a voluntary settlement fairly made is always binding in equity upon the grantor unless there be clear and decisive proof that he never parted or intended to part with the possession of the deed, and, if he retain it, there must be other circumstances besides the mere fact of his retaining it to show that it was not intended to be absolute.” In this case the fact of the conveyance had been, at the time it was made, communicated to all the parties in interest, and the deed delivered to the trustee. It afterwards came into the possession of the grantor, and the attempt was to defeat the deed by proof of a subsequent condition. In Garnons v. Knight, 5 B. & C. 671, a leading case upon the subject, in which there is a full discussion of the authorities referred to in the preceding cases, a conveyance was made by an attorney to secure an indebtedness to his client for money misapplied. The misapplication of the money and a promise to secure him were communicated to the grantee. The deed was handed by the grantor to his sister to hold for the grantee. Upon the trial the distinct question was whether the delivery to the third party was a good delivery, and the jury were instructed that, if the delivery was a parting with the possession and the power and control over the deed for the benefit of the grantee in order that it might be delivered to him in the grantor's lifetime or after his death, the delivery was good ; but, if delivered for safe-keeping for the grantor, to be subject to his future control and disposition, it was not a good delivery. On this instruction the jury found the delivery good, and, upon the argument of a motion for a new trial, the correctness of the instruction, as well us the sufficiency of the evidence to justify such a finding, was raised.</p> <p>The Court held the instruction to be correct, and that the evidence justified the finding of the jury. The further question was considered, “whether where a deed is duly signed and sealed, and formally delivered with apt words of delivery, but is retained by the party executing it, that retention will obstruct the operation of the deed;” and it was said, “where an instrument is formally sealed and delivered, and there is nothing to qualify the delivery except the keeping of the deed in the hands of the executing party, and nothing to show that he did not intend it to operate immediately, it is a valid and effectual deed ; delivery to the party who is to take under it, or to any other person for his use, is not essential.” In all of the cases cited in support of this opinion, Broughton v. Broughton, 1 Atk. 625; Clavering v. Clavering, 2 Vern. 473; Naldred v. Gilham, 1 P. Wms. 578, and Lloyd v. Barnett, 8 C. & P. 124, there had either been an actual delivery to a third party, or a formal delivery of the deed.</p> <p>These cases do not in any degree affect the settled rule that delivery is essential to the validity of a deed, and that a mere intention to convey, where the convejmnce is voluntary and the determining act is unexecuted, is without effect.</p> <p>After the delivery, the deed may remain in the possession of the grantor, but delivery, actual or constructive, is essential to its validity. Acts of the grantor in relation to the deed, such as recording, may give rise to the legal presumption of delivery: Stewart v. Riddell, 3 Md. 67. The recording of a deed is a publication, and places the title under the control of the grantee as effectually as the delivery of a deed.</p> <p>It is, moreover, an act inconsistent with any other thought than that the grantor has finally and completely divested himself of the title. The signing and acknowledgment of a deed cannot be said to have this effect. They are preparatory to a conveyance, and indicate only an intention. This intention, where the act is voluntary, the grantor is always free to change until the decidiiig and determining act is performed. In the case before us, the grantor did change her mind as to •one of the properties, having destroyed the deed and conveyed ■it to another party for a valuable consideration; and, as to the remaining property, there is only evidence by the deed, and by her language to her attorney, that she at one time contemplated a conveyance to the complainants, but the fact remains that she never carried this intention into effect. If the deed in this case is imperfect by reason of a want of delivery, the complainants cannot obtain relief in a court of equity. Equity will not aid an imperfect voluntary conveyance,- even when by accident the deed was not delivered: Clavering v. Clavering, 2 Vern. 473. No imperfect conveyance, which is also merely voluntary, will be aided or enforced in equity: Bispham’s Equity, 101, and cases there cited.—</p> <p>This appeal was then taken by the plaintiff below, who assigned as error the dismissal of her exceptions, and the confirmation of the Master’s report.</p>

<p>No. 137 January Term 1887, Sup. Ct.; Court below, No. 371 September Term 1885, C. P.</p> <p>This case originated in the court below upon the petition by William R. Matchett for an alternative mandamus directed to William Ludlow, Chief Engineer of the Water Department of the city of Philadelphia and Charles H. Russell, Permit Clerk, followed by the issuance of said writ, a return thereto, a replication (after a demurrer withdrawn) and a rejoinder. At the argument which followed, the parties upon the recommendation of the court entered into a case stated wherein the city of Philadelphia was made plaintiff and William- R. Matchett, defendant:— •</p> <p>[The case stated proceeds to set forth the property owned in 1872 by The German Hospital; the laying of the water pipe in front thereof in 1878 ; the filing of the lien for $400 in 1874, and the satisfaction of the same of record by the city solicitor under an ordinance of councils the same year; the subsequent conveyance of the property by the hospital in 1879, the title in 1885 becoming vested in said William R. Matchett.]</p> <p>That prior to the delivery of the last mentioned deed, the said William R. Matchett caused certificates of search to be procured from the office of the Court of Common Pleas (which since the adoption of the Constitution of 1874 includes searches in the late District Court) and also from the city solicitor’s office, which said certificates are dated the 21st day of May, 1885, and show no municipal claim for water pipe, or any other claims, against said lot.</p> <p>That prior to the payment of the purchase money of said lot, the said William R. Matchett knew that the said water pipe had been laid in front of the same, that the said claim had been filed therefor, and that the said claim had been satisfied of record by the then city solicitor, and relying on these facts,neither he nor any one on his behalf, before paying said purchase money, made any inquiry at the Water Department, to ascertain there if the said pipe had been paid for.</p> <p>That by inquiry at the said office of the Water Department, he would have ascertained that said pipe had not been paid for. That there is connected with said Water Department a search office, and that for a fee of 25 cents, as provided by a resolution of councils, dated the 4th day of March, 1884, searches are now, and have been since the last mentioned date, issued by the chief engineer of the Water Department. That no search was ordered or requested in this case.</p> <p>That since the passage of the ordinance of January 29,1855, [found in the syllabus] it has always been within the power of a purchaser to ascertain by inquiry at the Water Department whether pipe has been paid for. It has been customary for some years past for attorneys and conveyancers in Philadelphia to make inquiry at the Water Department to ascertain as to the payment of pipe.</p> <p>That, as a matter of fact, the water pipe' in question has not been paid for, but that the said William R. Matchett was not aware of said fact at the time of the payment of the purchase money of said lot. The admission of the fact that said pipe has not been paid for is not to prejudice.the right of the defendant to argue that the plaintiff is estopped from alleging such fact as against him.</p> <p>That the said William R. Matchett has caused a row of dwelling houses to be erected on said lot, which are now nearly completed, and it became necessary to connect the water pipes of said houses with the said water pipe in the street for the purpose of introducing water into the said houses.</p> <p>That on the 23d day of November, 1885, the said William R. Matchett applied to Charles H. Russell, the officer at the Water Department of the said city, duly authorized to.issue permits for the introduction of water into buildings, who was duly appointed by William Ludlow, chief engineer of said Water Department, and that said application was refused, unless the said William R. Matchett would first pay into said department the cost of laying said water pipe in front of said lot, in pursuance of an ordinance of councils of the 29th day of January, 1855, a copy of which is hereto annexed.</p> <p>That the said William R. Matchett on the 28th day of November, 1885, presented his petition to this Honorable Court for a writ of mandamus to the said William Ludlow, chief engineer, and Charles H. Russell, permit clerk of said Water Department, commanding them to issue to him apermit to introduce water from said pipe into said houses, whereupon a writ of alternative mandamus was awarded to which the said William Ludlow, chief engineer, made return and an issue was joined thereon and the case argued before this Honorable Court and held under consideration, and thereupon at the suggestion of said court an agreement between the said plaintiff and the said defendant was entered into,- providing that the said plaintiff should grant the said permit, upon the said defendant entering into a covenant to pay the cost of laying said water pipe, if upon a case stated reciting the foregoing facts, the court should be of opinion, that the plaintiff was not estopped from alleging, that the said pipe had not been paid for, and that defendant was not entitled to use said water pipe without paying the cost of laying the same, which said covenant has been duly signed and delivered to-the City-solicitor, and thereupon the said permit was duly issued to the said defendant.</p> <p>If upon the foregoing facts the Court should be of opinion that the plaintiff is not estopped as to the defendant from alleging that said water pipe has not been paid for, and that the said defendant is not entitled to introduce water into his said houses from said water pipe, without first paying the cost of laying the same, then judgment to be entered for the plaintiff in the sum of five hundred dollars, otherwise judgment to be entered for the defendant, costs to follow the judgment, with right in either party to take a writ of error to the Supreme Court.....</p> <p>[Signed by the parties.]</p> <p>On argument the Court ordered judgment for the defendant, whereupon the plaintiff city took this writ assigning the said judgment for error.</p>

<p>No. 209 July Term 1886, Sup. Ct.; court below, No. 11, September Term 1884, C. P. 1</p> <p>The proceeding in the court below was in Foreign Attachment by Henrietta Brock v. Max Brock and Martin Brock, trading as M. Brock & Co. The declaration was in the common courts in Assumpsit, with a bill of particulars in which “ the plaintiff claimed to recover the sum of $2,600 loaned defendants March 19, 1888, with interest thereon.” The pleas were, “ non assumpsit, payment with leave, set-off, etc.” The plaintiff and defendants resided in New York; the garnishee was A. E. Massman of Philadelphia.</p> <p>For the plaintiff, James Ertheiler, her brother, testified: “.....I handed these two checks on March 20, 1888, to Martin Brock; he demurred to taking the check for $500. I told him he need not demur as my sister had authorized me to hand it to him as a loan to the firm ; his firm. I do not remember anything else at that time. The money was Mrs. Brock’s.” On cross-examination: “I did not stipulate for any rate of interest on the money, nor was there any agreement to return it. He did not agree at that time or any other time to return it. My sister desired me to hand if to him as a loan to the firm.....I did not know of the existence of the firm before I gave Martin the money.”</p> <p>Henrietta Brock, the plaintiff, sworn, and plaintiff proposed to prove by the witness that she was the wife of one of the defendants, having been married to him on March 19, 1883, and was divorced, from him in January, 1886; and further, to prove by her testimony from whom the money came upon which suit was brought, and that defendant Martin Brock promised to return it. Objection was made to the admission of any testimony from this witness as to matters which took place after her marriage with Martin Brock. The objection was overruled and bill sealed for the defendants.1</p> <p>. The plaintiff then testified: “I was the wife of Martin Brock and was married to him March 19, 1883. I was divorced from him in January, 1886. The $2,000 was a wedding present from my father. The $500 was my own. I instructed my brother to loan it to the firm. After we were separated in the year 1885, I had an interview with Martin Brock in Philadelphia, and he then said he would return me every cent; he has not returned it or anjr part of it.” On cross-examination : “.....I merely told James to loan the firm the money.....I don’t remember whether I mentioned the name of the firm or not at the time I gave the money to James.....”</p> <p>• Mrs. Minnie H. Ertheiler testified that she was present at an interview with Martin Brock in April, 1885, in New York, when he said to his wife, “you will get every cent of the money back.”</p> <p>The checks referred to, dated May 19, 1883, were then put in evidence, and, the plaintiff having closed, a motion for a compulsory nonsuit was overruled.</p> <p>For the defendants, Max Brock, a defendant, was called and testified: “The partnership was formed in March, 1883. It was sometime between the 20th of March and the end of the month. I did not borrow any money from James or Moritz Ertheiler. At the time I was not aware of any loan having been made to the firm by any one. My brother put into the firm $2,500. He put it in on condition that he was to have the right to draw out a good deal of it within a few days. He took out during his connection with the partnership a good deal more than he put in.” On cross-examination: “ The firm was composed of Martin Brock and Max Brock; it continued until May, 1884.....He deposited the checks and we had an agreement to form a partnership. I knew nothing of the checks before the 20th of March, 1883.”</p> <p>Martin Brock testified: “.....I was in New York city in my house the day of my wedding. James Ertheiler called me into one of the side rooms and said: ‘ As father did not make you any present he sent you this,’ and he handed me an envelope containing the check for $2,000, and he added, ‘ I will give you this,’ and he handed me an envelope containing a check for $500. I refused at first to take the $500, and told him he had done enough for me, but he insisted that I should take it. He said nothing about its being loaned.” On cross-examination : “ This $2,500 was handed me as a gift by James Ertheiler. It was a gift to me on my wedding day..... The partnership was formed a day or two after my marriage, March 20 or 21. I indorsed the checks; they went into the partnership, and I drew out during its continuance more than I was entitled to.....This money was not used to pay the firm debts.”</p> <p>When the case was closed on the evidence, the counsel for the defendants requested the court to charge the jury that, under all the evidence in the case, the verdict should be for the defendants, which point was refused.8 The jury found a verdict for the plaintiff for $2,950, and judgment being entered thereon after a refusal of a new trial, the defendants took this writ, assigning for error</p> <p>1. The admission of the testimony of Henrietta Brock.1-</p> <p>2. The refusal of the defendants’ point.8</p>

No. 162 January Term 1887, Sup. Ct.; court below, No. 14 December Term 1886, C. P. Elizabeth S. Davis, executrix of Samuel L. Davis, deceased, began this proceeding in the court below by writ of foreign attachment against John Tingley, summoning Charles G. Blatchley as garnishee. A rule to show cause of action was granted on motion of Mr. Meliek, an attorney at law, whose appearance was not entered of record.

<p>No. 148 January Term 1887, Sup. Ct.; court below No. 1 January T. 1884, C. P.</p> <p>The suit below was in case for Negligence by Annie M. Hoffort against the county of Lehigh.</p> <p>On the trial it was shown that in 1834 a county bridge was erected six hundred feet long across the Jordan Creek and Meadows at Allentown, Lehigh county. Allentown was then a village, all on the western side of Jordan Creek; now it is a city of about 25,000 inhabitants occupying both sides of said creek. The bridge was twenty-six feet in width, a passenger railway occupying eight feet on one side, a foot-walk of four feet in width being on the other side with curb-stones six inches high, and a road bed of fourteen feet in width with no barrier between it and the curb-stones of the foot-way. A branch of the Lehigh Valley Railroad runs beneath the bridge through one of its arches.</p> <p>An’ act of Assembly was passed approved, February 18, 1870, P. L. 191, providing: “That the commissioners of Lehigh county are hereby authorized to erect foot sidewalks adjoining the stone bridge crossing the Jordan Creek at the Hamilton street crossing, in the city of Allentown, county of Lehigh, Pennsylvania, at the cost and expense of the county; ”■ but the sidewalks thus authorized had not been erected by the county commissioners on October 5, 1883.</p> <p>About noon on the date last mentioned, while the plaintiff, a young woman, was crossing the bridge referred to from west to east, carrying the diftner of a brother employed on the other side, a team of two horses and a wagon crossing the bridge in the same direction became unmanageable and, the driver losing control of them, ran upon the sidewalk. On account of the noise of steam escaping from an engine on the railroad beneath her, the plaintiff did not hear the team approaching until it was almost upon her, and then she leaned over the parapet of the bridge to escape, but was struck by the hubs of the wheels and severely injured.</p> <p>The plaintiff produced on the trial testimony from some witnesses that the bridge was dangerous for ordinary travel, from others that it was extremely dangerous in case of a runaway, and one witness testified that on a Saturday in December, 1881, a not unusually busy day, by actual count, not including the trips of street cars and omnibuses, 8141 persons and 875 conveyances (from one to six horse teams) had passed over the bridge from 5 o’clock A. M. to 10 o’clock p. m.</p> <p>The plaintiff requested the court to charge, (1) that the act of Assembly before quoted, was mandatory upon the county commissioners, and a failure by the county to build a sidewalk or sidewalks along the bridge in question within a reasonable time after its passage was negligence; (2) that if the jury believed from the evidence that by the building of a sidewalk or sidewalks along and on the outside of the bridge with a proper guard wall or railing between the road-bed of the bridge and sidewalk, the injury to the plaintiff could have been avoided, the defendant was guilty of negligence and the plaintiff should recover; and (3), if the jury believed from the evidence that at the time of the injuries the bridge was in an improper, unsafe and dangerous condition and the defendant had knowledge thereof, the defendant was guilty of negligence and the plaintiff should recover. The defendant requested the court to charge that under all the evidence the verdict should be for the defendant.</p> <p>The court, Edwin Albright, P. J., refused all these points and charged inter alia :—</p> <p>..... There is no allegation that the ,commissioners at the time this accident happened had not maintained the bridge as it had been there before, and as it had been ordained from the beginning; but the allegation of the plaintiff is, that the bridge was insufficient, and the complaint is that the bridge was insufficient because it was too narrow, and because there was not a sidewalk there of adequate width, and because there was not a proper guard or protection between the wagon road and the sidewalk for foot passengers. If it were not for the act of Assembly', to which reference has been made, the court would say to you that the plaintiff had not made out a case, nor had shown that the county was negligent inasmuch as want or repair has not been shown. In 1870 the legislature of this state enacted that the commissioners of Lehigh county were authorized to erect foot sidewalks adjoining the stone bridge across the Jordan in Allentown — this bridge. The plaintiff took the position that this act of Assembly compelled the commissioners to build the sidewalk, and that because they did not do it the county was to be held liable in that the commissioners were negligent. The defendant took the ground that it was left discretionary with the commissioners to exercise their own judgment, whether the sidewalk was necessary or not, and that it was not for this court nor for you jurors to say whether it was necessary or not; that the law lodged that discretion with the commissioners. The court rule against both parties as respects these several positions. The view the court entertain and instruct you to follow on this point, is this: That it was not the absolute duty of the commissioners, after the passage of the act of 1870, to build a sidewalk or sidewalks, but they had the authority and the privilege and the power to do so, and that if the bridge as it was then, and as it was in 1888, was insufficient so as reasonably to accommodate the ordinary travel, and the building of the sidewalk thus became necessary in order to accommodate the public travel, then you may say that negligence has been shown.....</p> <p>The county, it seems, maintained this bridge up to 1883 as it had been for many years. They had the authority .to build a sidewalk. You are to consider that and you are to consider the travel, which it is shown there was in 1883 at this bridge in question. Also the uses to which it was ordinarily put. Then you are to ask yourselves the question whether it has been shown that the county should before 1883 have built this sidewalk, and whether the omission to do so was negligence. If it is not shown that the county was negligent in leaving the bridge in the condition it was, then the plaintiff has no case, although she may have been hurt. In that event you will then return a verdict for the defendant.</p> <p>As I said before, in passing upon this question you will consider the public wants respecting this bridge, the amount of travel that was ordinarily there and the kind of travel.</p> <p>Those who are required to provide roads and bridges are to provide only in a reasonable way for ordinary travel. While it has been argued to you that such authorities are not required to prevent accidents from runaways, the court say to you that you will consider, in passing upon this question of negligence or no negligence at the place where this happened, whether or not it was the duty of the commissioners to provide such safeguards at this place as would have prevented this injury, even although it occurred from a runaway. In other words, there may be places in remote districts of the county, or in small towns, or in streets in large towns, where it could not be reasonably required that guards should be put up along a bridge or between the sidewalk and the wagon road. At many places it could not be said that it was reasonably necessary that there should be any footwalk at all, separate from the wagon road, while at other places where the travel was great and other circumstances concurred, it might be said there ought to have been a footwalk, and that the travel was such that there ought to be some guard or protection between the footwalk and the wagon road. I have said to you that there may be places where this is necessary. I qualify that word by saying that it is for you to say whether it was necessary here or not.....—</p> <p>Both parties excepted to the charge of the court and the answers to the said points, and, the verdict being for the plaintiff for f>770..83, the defendant took this writ, assigning that the court erred in refusing to charge the jury that under all the evidence the verdict should be for the defendant.</p>

<p>No. 17 July Term 1886, Supt. Ct.; court below, No. 238 June Term 1885, C. P.</p> <p>The case in the court below was an attachment-execution by Mason C. Rhodes, executor of Sidney Bailey, deceased, against Eben Rozelle, defendant, Isaac C. Tillinghast, garnishee, based upon a judgment obtained upon a note, with warrant of attorney and waiving exemption, etc., as follows:—</p> <p>§100 Factoryvtllb, Pa., Sept. 29,1884.</p> <p>One day after date I promise to pay Sidney Bailey or bearer out of my first pension money the sum of One Hundred dollars, with interest, etc.</p> <p>The writ was issued May 2, 1885, and served upon the garnishee May 2, 1885, and upon the defendant May 19, 1885; June 8, 1885, interrogatories, and rule upon the garnishee to answer on or before August 1, 1885. June 27, 1885, a special plea was filled as follows:—</p> <p>And now, June 27, A. d. 1885, the defendant, by his attorney, R. H. Holgate, says that he has no money, goods, effects or merchandise in the hands of I. F. Tillinghast, the above named garnishee, except the sum of §800, which the said defendant received from the United States government as a pension for the loss of his son, while in the military service of the United States, during the war of the Rebellion. That this money is the identical money so received, and that the said money is in the hands of the above named garnishee for safe keeping only. That it is not a pledge, pawn, loan or deposit, and the said I. F. Tillinghast took the same, not under agreement to repay the same in! kind, or in gold, or in silver, or legal tender of like amount, but to return the identical money, cash, bank notes, or other legal tenders left in his custody, and as such it is not attachable.—</p> <p>On July 8, 1885, the widow, son and daughter of Sidney Bailey (then deceased) called on the defendant at the garnishee’s place of business, and upon their representation that any moneys paid to them or any of them would be applied upon the judgment their father had obtained, the defendant paid to the daughter the full amount of the note and interest.</p> <p>September 30, 1885, the garnishee’s answers to the interrogataries were filed, the fourth of which was: “Yes; I had the sum of $800, belonging to Eben Rozelle, which was in my hands for safe keeping only, it being the identical money paid him on a pension claim by the government of the United States, for the loss of his son while in the military service of the United States, during the war of the Rebellion,” and on the same day on motion of plaintiff’s attorneys rule to show cause why judgment should not be entered against the garnishee on his answers. On January 6, 1886, the plaintiff, at the suggestion of the court at the hearing on the rule, demurred to the plea filed, and on the same day the defendant, without leave, pleaded “ nil debit, payment.”</p> <p>On April 1, 1886, the court, Aleued Hand, P. J., delivering an opinion, ordered: “The rule in this case is made absolute, and the demurrer to the plea sustained, and judgment in the proper form as of a case of foreign attachment is directed to be entered against defendant and garnishee. An allowance of ten dollars is made to the garnishee to be taxed as costs as provided by act of Assembly.”</p> <p>The defendant then took this writ, assigning for error the action of the court in sustaining the demurrer and directing judgment to be entered against the defendant and the garnishee.</p>

<p>No. 34 January Term 1887, Sup. Ct.; court below, No. 122 April Term 1886, C. P. #</p> <p>On July 28, 1883, Hiester H. and Henry A. Muhlenberg, of the one part, and John Henning and James H. Madeira, of the other part, executed a contract under seal, in which the former granted, bargained and sold to the latter for the period of five years the exclusive right to all the iron ore in a tract of fifty acres in Berks county. Inter alia, the lessees, as they were termed in the contract, covenanted to pay to the lessors, “ for every ton of 2240 lbs. in weight of clean and merchantable iron ore raised, mined and taken away by them or their order from the said premises, the price of 35 cents per ton,” etc. The said lessees further covenanted “ to raise, mine, carry away and sell at least 1500 tons-of iron ore annually during the continuance of this lease; or, in default thereof, to pay a royalty of $525 annually; and that this lease shall be forfeited at the option of the lessors if at the end of each year at least $525, as rent or royalty, has not been paid during the course of the year.”</p> <p>On April 1, 1886, an action of covenant was brought upon the contract against the defendants, the narr. declaring for “ the yearly sum, rental or royalty of $525 annually,” for two years ending July 28, 1885. To this claim of the plaintiffs, sustained by affidavit, the defendants filed an affidavit of defence averring:</p> <p>That, shortly after the execution of the lease upon which this suit is brought, they went into possession of the premises therein described, and erected thereon the necessary machinery for the proper prosecution of mining, digging and washing the iron ore thereon; they also sunk a well, and thereby obtained a sufficient supply of water to properly wash and separate the same. That they expended more than $3,000 in erecting said machinery, and digging said well, and in carrying on said mining operations, and they were fully prepared and equipped to mine, dig and wash all the iron ore upon said tract. That in carrying on said operations they had employed eight or nine men for a period of about nine months; that they prosecuted the operations of mining, digging and washing the iron ore with due diligence for said period of time in a workmanlike and skillful manner; both of the defendants being skillful and practical miners of iron ore, and having large experience in the same.</p> <p>That, notwithstanding the fact that the said tract was operated by them as aforesaid, on account of the non-existence of sufficient ore in said tract and of the inferior quality of the same, they were unable to carry on and continue the operations of mining, digging and washing the iron ore upon said tract, as contemplated by the parties to said agreement. That, after they had thus fully explored, searched for and developed the ore on said tract, and finding that the quantity and quality of the same were such as to render it impossible for them to perform their covenants in the lease, your deponent called upon.H. A. Muhlenberg, Esq., one of the plaintiffs, and informed him of the condition of the ore in said tract, and stated to him that it was not of sufficient quantity and of the quality requisite to enable them to comply with their agreement; and that, if under these circumstances the lessors intended to insist upon the payment of royalty, they would, tear away their machinery and surrender it. That thereupon the said plaintiff requested your deponent not to remove said machinery, but should leave it stand, should wait until times got better, that they would not look for royalty so long as they did not operate the mine. That thereupon the defendants complied with said request and did not remove the machinery from the premises, but that, since said request, the defendants have not resumed mining operations upon said tract, nor has anything occurred to warrant them to so resume.</p> <p>A supplemental affidavit of defence averred in addition:</p> <p>That the iron ore which is in the tract of land described in the lease from the plaintiffs to the defendants, after it is properly and carefully mined, washed and prepared for market, as iron ore is usually prepared for market, is not, because of its inferior 'quality, merchantable; and, further, deponent says that all the negotiations between the defendants relative to the obtaining and execution of the lease and the terms of the same were had and made with Henry A. Muhlenberg, Esq., one of the plaintiffs, acting for himself and his said co-plaintiff, H. H. Muhlenberg, now deceased.</p> <p>A rule granted to show cause why judgment should not be entered against the defendants for want of a sufficient affidavit of defence was discharged by the court below, J. Hagenman, P. J., whereupon, after .exception sealed, the plaintiff took this writ, assigning for error the discharge of said rule, and the refusal to enter judgment against defendants for the amount of the claim.</p>

No. 203 July Term 1886, Sup. Ct.; court below, No. 603 December Term 1883, C.'P. On the trial in the court below of a scire facias sur a mechanic’s lien which had been filed by Hiram Clime, a stone mason, against the church edifice and appurtenant curtilage of The Centenary M. E. Church of the city of Philadelphia, owner, and the board of trustees of the same, acting by Philip Rudolph, contractor, it appeared that said edifice had been begun and partly erected with a gray…

<p>No. 190 July Term 1886, Supt. Ct.; court below, No. 164 September (?) 1885. Q. S. •</p> <p>In the court below Jane Dubois presented her petition averring that Henrietta and Lizzie James, aged sixteen and thirteen jmars respectively, were poor and unable to work and had a grandfather, Thomas James, who had means, was able to support them, but would not. The petition did not aver any interest of the petitioner. After citation the court, T. K. Finletter, P. J., made an order requiring Thomas James to pay the sum of $6 per week for the support of said children, until they were able to support themselves, and to give bond in $1,000 for the performance of the order, and subsequently awarded an attachment to enforce said order by commitment. After several ineffectual attempts to have said orders revoked, Thomas James obtained a writ of certiorari assigning the said orders as error.</p>

No. 186 July Term, 1886, Supt. Ct.; court below, No. 32 March Term, 1885.. Q. S Samuel Thompson and Robert Thompson were indicted in the Quarter Sessions uppn an information made by Mrs. Ada Krepps for forcible entry and detainer. On the trial the court below, James Inghram, P. J., submitted to the jury to find from the evidence of facts, which are sufficiently stated in the opinion below, whether the defendants were guilty or not guilty.

<p>No. 149 January Term 1887, Sup. Ct.; court below, No. 1 August Term 1886, C. P.</p> <p>This case arose in the court below in the issuance of a scire facias quare executionem non and to revive and continue the lien of a judgment entered to No. 28 April Term 1878 in favor of John Dech v. James K. Rauch.</p> <p>On May 8, 1874, said Rauch had executed a mortgage to Dech for $1,000 upon a house and lot in Bethlehem already subject to several prior encumbrances, in order as follows : A mortgage to the' Moravian Congregation, July 24,1867, for $1,612.50; another to Sarah A. Myers, October 14, 1872, for $5,000; a judgment in favor of A. S. Weber, April 1, 1874, for $2,000.</p> <p>On July 5, 1877, said Rauch was adjudicated a bankrupt under the acts of Congress; on March 22,1878, judgment was entered against him in liquidation of the Dech mortgage, and on March 28, 1879, he received his discharge as a bankrupt from all debts and claims which were by the acts of Congress provable against his estate, and which existed on July 5,1877.</p> <p>To the scire facias upon the plaintiff’s judgment issued on June 14, 1886, the defendant filed special pleas setting out the discharge in bankruptcy and other facts which appear fully in the opinion of the court below, claiming, in addition to the effect of said discharge, that the lien of the plaintiff’s judgment and mortgage had been forever divested by a sheriff’s sale of the mortgaged premises upon one of the mortgages prior to that of the plaintiff.' The plaintiff filed a demurrer to these pleas which was as follows:—</p> <p>The first plea shows on its face that the claim of the plaintiff was merged in a judgment after the day upon which the petition for the adjudication in bankruptcy was filed against the defendant, from which judgment the defendant was not discharged as appears by said plea. And also that it is not alleged in said plea that the plaintiff proved his mortgage debt against the bankrupt.</p> <p>The second plea avers that the defendant is again the owner of the real estate pledged by him for the payment of the plaintiff’s claim and the defendant is therefore estopped from denying that the said real estate of the defendant is bound by said mortgage.</p> <p>After hearing, the court, W. W. Schxtyleb,, P. J., delivered the following opinion :—</p> <p>The facts disclosed by the special plea are substantially as follows: On April 2, 1872, one Charles W. Rauch conveyed to defendant a'house and lot in the borough of Bethlehem, subject to a mortgage in favor of the Moravian Congregation for $1,612. On October 14, 1872, defendant gave a second mortgage on said property, which was entered of record, to Sarah A. Myers, for $5,000. On April 1, 1874, defendant confessed a judgment to A. S. Weber in the penalty of $2,000. On May 8,1874, the mortgage in controversy was given by defendant to plaintiff to secure the payment of $1,000.</p> <p>On November' 9, 1876, defendant conveyed the aforesaid house and lot, subject to the aforesaid incumbrances, to one William Deremer. On July 5, 1877, a petition in bankruptcy was filed against defendant. On September 26, 1877, Sarah A. Myers recovered a judgment on her. mortgage. A levari facias was subsequently issued on this judgment, under which the house and lot were sold by the sheriff, and on July 1,1878, the sheriff acknowledged a deed for the same to Charles A. Luckenbach for the consideration of $6,500.</p> <p>In the meantime, to wit, on March 22, 1878, plaintiff recovered judgment on his mortgage, being the judgment on winch the present scire facias was issued. On July 10, 1878, Mr. Luckenbach, without contemplated fraud, and “ as a matter of charity,” agreed to convey the house and lot to defendant at cost. Plaintiff did not prove his claim in the bankruptcy proceedings, and on March 28, 1879, defendant received his discharge. - On July 1, 1882, Mr. Luckenbach being then deceased, his executors made a deed to defendant, according to the agreement of their testator.</p> <p>It is not clear how the proceedings in bankruptcy have anything to do with the present controversy. Plaintiff did not prove his claim and hence the bankrupt law did not prohibit him from proceeding by scire facias on his mortgage: Megargel v. Megargel, 105 Penn. St. 475. And having so proceeded to judgment, the original debt was merged in the judgment, and the judgment became a new debt, which was not affected by the defendant’s subsequent discharge: Wise’s Appeal, 99 Penn. St. 195.</p> <p>With the bankruptcy feature eliminated there is nothing in principle to distinguish the present case from Cleary v. Kennedy, 16 W. N. 313, where Judge Arnold, in a very able opinion, shows most conclusively that, “where a party grants property in mortgage, and subsequently the property is sold by the sheriff under a prior mortgage, which divests the second mortgage of its lien, and the property is bought by a third party, who reconveys the property to the mortgagor, this new acquisition will enure to the benefit of the second mortgagee, so as to restore his right to sue upon his mortgage and entitle him to execution against the property mortgaged.”</p> <p>It follows that the facts set forth in the special plea are not sufficient in law to prevent a recovery by the plaintiff, and that the demurrer must be sustained.</p> <p>And now, November 29,1886, judgment on the demurrer is entered in favor of the plaintiff.—</p> <p>Thereupon the defendant took this writ, assigning that the •court erred in entering judgment oil the demurrer in favor of the plaintiff.</p>

<p>No. 72 January Term 1886, Sup. Ct.; court below, No. 242 May Term 1885, C. P.</p> <p>In the court below the proceeding was a Feigned Issue directed to try the right of Daniel Blum, the claimant, to certain property which had been levied upon under an execution against Joseph C. Blum issued upon a judgment in favor of Lewis P. Ross.</p> <p>Joseph C. Blum lived in Towanda, Pa., and in December, 1881, he conveyed to his wife Ida E. Blum, a house and lot in that place and soon afterwards removed to Akron, Ohio, with a stock of boots and shoes and there began business. He there became indebted to insolvency for money borrowe*d from his sister-in-law Barbara J. Blum, and for goods purchased from Lewis P. Ross and from others,'when on an execution issued December 4, 1882, upon a judgment confessed to'her, Barbara J. Blum, residing at Ludlow, Vt., became the purchaser of his entire stock. The purchaser carried on business for a short time, when in February or March, 1883, she sold the goods then on hand to Ida E. Blum, the wife of Joseph C. Blum, taking in payment therefor three notes for $500 each signed by Mrs. Blum alone. Mrs. Blum was not present when the bargain was made, but signed the notes when they were brought to her. The goods were then removed by Mrs. Blum and her husband to Towanda, Pa., and put into a rented store-room.</p> <p>On March 31, 1883, Mrs. Blum presented her petition and obtained a decree giving her the benefit of the provisions of the act of April 3, 1872. This decree was recorded in the recorder’s office on April 11, 1883. An opening of the store was then advertised by cards, circulars and notices, to take place on April 14, 1883, in the name of Ida E. Blum, and thereafter the store was carried on and other stock from time to time purchased in her name. On January 21, 1885, Lewis P. Ross issued an execution against Joseph C. Blum upon his judgment obtained while the defendant lived at Akron, Ohio. Six days afterwards, and before a levy, Ida'E. Blum sold to Daniel Blum for $2,700 cash what goods were then on hand and which embraced a small part of those bought from Barbara J. Blum at Akron, Ohio, together with others bought from time to time after she had opened at Towanda. Daniel Blum boxed the goods, removed them- to the freight station to be shipped, when they were seized upon the Ross execution. The feigned issue was then directed upon the sheriff’s petition.</p> <p>The court, C. A. Mayer, P. J., in his charge directed the jury to find for the defendant, whereupon the plaintiff in the issue took this writ specifying for error, (1) The instruction to the jury to find for the defendant, the court being of the opinion that no title was acquired by Ida E. Blum by her purchase from Barbara J. Blum, but that the goods belonged to her husband and were liable to execution at the suit of his creditors; (2) The instruction that the fact that Mrs. Ida E. Blum, a married woman, obtained a decree under the act of April 3, 1372, did not vest the title of the property in question in her to the exclusion of her husband and his creditors; (3) The instruction that there was no evidence that the purchase by Ida E. Blum was upon the credit of her separate estate.</p> <p>The case was first argued in this court on March 29, 1886 • a re-argument • was ordered, the attention of counsel being invited to the sufficiency of the evidence to submit to the jury to find that the property was purchased by Mrs. Blum on the credit of her separate estate.</p>

<p>No. 171 July Term 1887, Sup. Gt.; court below, No. 75 June Term 1884, C. P. No. 3, in equity.</p> <p>In the court below this case' was a bill in equity filed by Morris Brown against William J. Binney, executor of the last will and testament of Horace Binney, Jr., and in his own right; John Binney; Edward V. Lansdale, guardian of Maria T. B. Lansdale; Elizabeth C. Binney; Julia H. Binney and Charles C. Binney; William G. Milliken and Mary M. K. M., his wife; and W. Moylan Lansdale.</p> <p>The bill filled July 16, 1884, in substance, averred:</p> <p>There being of record at Philadelphia, in Mortgage-book G. W. C., No. 15, page 543, prior to April 15, 1867, a mortgage of |2,375 from John School and Charles Faurest to Joseph Swift, upon No. 1117 Lombard street, on that day Horace Binney, Jr., wrongfully entered satisfaction on the margin of the record.</p> <p>On April 16, 1872, the plaintiff bought No. 1117 Lombard street, from Elizabeth E. School, widow and devisee of John School, for $4,500, paid or secured to be paid to her, having first obtained a certificate from the recorder that on searching the indexes he found no unsatisfied mortgages of the premises given by school or Faurest.</p> <p>Horace Binney, Jr., died in 1870, the defendant William J. Binney, being his executor, and he and the other defendants, the residuary legatees and devisees.</p> <p>The plaintiff spent $265.30 for conveyancing, etc., and $500 for repairs to the premises, and lived there till July 12, 1881, when he first heard of the said mortgage.</p> <p>Charles E. Henry, administrator of the estate of Giles S. Musson, then brought suit on the mortgage, and William J. Binney, was called upon by letter to pay the mortgage with interest.</p> <p>The action resulted in a judgment in favor of Henry for $4,457.12, which was afterwards affirmed by the Supreme Court. In this defence the present plaintiff incurred a liability for counsel fees and other expenses, and suffered great anxiety of mind, for which he claimed compensation. The premises were afterwards sold by the sheriff, and wholly lost to the plaintiff.</p> <p>The relief prayed for was:</p> <p>1. Discovery of the estate of Horace Binney, Jr., of what part distribution has been made and to whom and what still remains undistributed.</p> <p>2. That it be declared that the entry of satisfaction by Horace Binney, Jr., was a fraud upon the plaintiff, a purchaser for value of the premises without notice of the fraud.</p> <p>3. Compensation from the estate of Horace Binney, Jr., for the loss suffered by the plaintiff.</p> <p>4. A decree in plaintiff’s favor for $5,265.30, with interest from April 16, 1872, together with all counsel fees and expenses incurred in defending the suit on the mortgage, and such other compensation as he might be entitled to.</p> <p>5. A decree for payment of such amounts with costs by the defendants, so as to effectually secure the payment out of the estate left by Horace Binney, Jr.</p> <p>6. General relief.</p> <p>The answer admitted that Horace Binney, Jr., wrote on the margin of Mortgage-book Gf. W. C., No. 15, page 543, the words and letters “ Horace Binney, Jr., Admr. d. b. n. c. t. a. of Wm. J. Bell,” but denied that his act in so writing was in any way wrongful on his part. It gave the whole entry of which these words and letters formed a part, stated the circumstances under which they were written, and the title of Horace Binney, Jr., to certain other mortgages from School and Faurest to Swift, including one recorded on the next page, which Mr. Binney then wished to satisfy, whereby it happened that the recorder’s clerk wrote the entry of satisfaction and ■directed him to sign on the wrong page. It denied that any loss which the plaintiff might have suffered was due in any manner to the act of Horace Binney, Jr. It admitted that certain interests in his estate were vested in the defendants, but averred that certain interests were vested in other parties. It admitted that William J. Binney, the executor, had been called upon by letter to pay the mortgage on No. 1117 Lombard street, with interest, but denied that he or any of the defendants had ever been asked to assist at the trial of the action on that mortgage.</p> <p>The answer further submitted:</p> <p>1. The estate of Horace Binney, Jr., was not liable to the plaintiff, for any loss sustained by him through the erroneous certificate of search, because:</p> <p>(1.) In the absence of wilful fraud by other parties, the recorder who issued the search was alone liable for it.</p> <p>(2.) The statute of limitations barred the claim.</p> <p>(3.) The fact that the recorder is protected by the same statute cannot substitute the plaintiff to any supposable rights of the recorder against other parties.</p> <p>(4.) Either the recorder’s clerk was negligent in' preparing the search, or</p> <p>(5.) He relied solely on the attestation of the previous recorder, who alone was responsible for the erroneous entry of satisfaction.</p> <p>(6.) The fact that the statute of limitations protects the previous recorder cannot alter the matter.</p> <p>(7.) Horace Binney, Jr., was not negligent in obeying the directions of the recorder’s clerk.</p> <p>2. The bill itself showed that the plaintiff’s true remedy was against his vendor, on the ground of her concealment of the existence of the mortgage.</p> <p>3. The falsity of the certificate of search escaped detection on account of a combination of extraordinary circumstances, for which the defendants were not liable.</p> <p>4. The compensation claimed was excessive.</p> <p>On hearing before Mr. M. Hampton Todd, to whom as Examiner and Master the case when at issue was referred, the following facts were shown:</p> <p>On March 30, 1850, John School and Charles Faurest, partners, mortgaged to Joseph Swift four lots on Lombard street, on which the houses numbered 1111, 1113, 1115, and 1117 were afterwards built. The mortgages were all for the same amount ($2,375 each), recorded on the same day, in the same mortgage-book (G. W. C. No. 15), on pages 546, 541, 544, and 543, respectively.</p> <p>On January 31, 1853, Swift assigned the mortgages on premises No. 1111, 1113 and 1115 to Horace Binney (the elder) and Margaret Bell, executors of William J. Bell. The assignment was recorded in Mortgage-book T. H. No. 20, page 355.</p> <p>On June 17, 1858, these three mortgages were assigned by Horace Binney (the elder), surviving executor, to Horace Binney, Jr. (the defendants’ testator), administrator d. 1. n. e. t. a. of the Bell estate. This assignment was recorded in Mortgage-book A. D. B. No 12, page 471.</p> <p>The mortgage on No. 1117 had previously been assigned to Giles S. Musson, of Antigua, the interest being collected here (though with some irregularity) by his agent, the late J. J. Barclay, Esq. Musson died in 1855, having bequeathed the sum secured by this mortgage to his wife for life, with remainder to his daughter.</p> <p>In 1856 School and Faurest dissolved partnership, Faurest conveying his share in the four mortgaged properties to School, who subsequently sold Nos. 1113 and 1115 to other parties, subject to the mortgages.</p> <p>On April 15, 1867, the mortgage on No. 1115 (recorded on page 544) was paid to Mr. Binney, the assignee, and he went to tb.q recorder’s office to have satisfaction entered. The chief clerk, Mathias Myers, indorsed the satisfaction properly on the mortgage itself, but the following entry was made upon the margin of page 543 (instead of 554) and opposite the record of the mortgage upon No. 1117:</p> <p>“ April 15, 1867, This mortgage is fully satisfied,</p> <p>“Asst. T. H. 20-355 Before Horace Binney, Jr., Adrnr. d. b.</p> <p>“A. D. B. 12-471 J. T. Owen, n. c. t. a. of Wm. J. Bell-.</p> <p>Recorder.”</p> <p>Mr. Binney wrote only the words printed in Italics. The rest, except Recorder Owen’s signature, was written by Myers.</p> <p>School paid no interest on the mortgage on No. 1117 from the dissolution of partnership in 1856 till July 30, 1868, when he paid Mr. Barclay all the interest ($1,638.75) due up to March 30 of that year. On December 17, 1868, he paid him the interest due September 30. About that time Mr. Barclay first heard of Musson’s death in 1855. His agency being thereby revoked, he collected no more interest, and it remained undemanded for nearly thirteen years.</p> <p>On January 5, 1869, School made his will, devising inter ali-a Nos. 1111 and 1117 to his wife, with this proviso, “she taking the same subject to any incumbrances existing thereon, whatever the same may be,, and paying said incumbrances, which are in no event to be charged upon-or paid out of the remainder of my property.”</p> <p>His will also contained this clause : “ I order and direct that in every case in which I have devised real estate, the parties taking the same shall see to and pay the incumbrances thereon, which are in no event to be paid out of or a charge upon the rest of my estate.”</p> <p>He also bequeathed to her one half of his business and of his interest therein, and of the stock and fixtures thereto belonging.</p> <p>Six days later he died. His executors were his widow and eldest son, and they filed an inventory, showing nearly $14,000 of personalty, but never filed any account. On September 21, 1870, Mrs. School gave her cousin, one James A. McCaffrey, a power of attorney to manage all her property in Philadelphia, and sell it when advisable. She soon after went to San Francisco, where she still resides. In 1871, McCaffrey sold No. 1111, subject to the mortgage.</p> <p>In 1872 McCaffrey advertised No. 1117 for sale, in the Ledger, therein representing it as “ clear ” and “ a bargain.” Morris Brown, the plaintiff below, saw this advertisement, and being personally assured by McCaffrey that the property was- ‘ clear,” agreed to buy it for $4,500, $2,000 being cash, with a bond and mortgage to Mrs. School for $2,500. Passmore Williamson, the conveyancer, did not see the entry of satisfaction himself, but obtained from the recorder a certificate that on searching the indexes of mortgages, he found no unsatisfied mortgages of record against the premises. The deed, executed April 16, 1872, was from Mrs. School as devisee of the premises, and contained a covenant of warranty against all parties claiming either by, from or under her, or by, from or under John School, deceased.</p> <p>Mrs. School afterwards assigned the plaintiff’s bond and mortgage to A. B. Carver, Esq., to whom the plaintiff has since paid $1,000 on account, leaving $1,500_ still due.</p> <p>Musson’s widow died in 1881, and her husband’s will was soon after proved, Charles E. Henry being appointed administrator d. b. n. c. t. a. He demanded the interest then due on the School and Faurest mortgage on No. 1117, and the plaintiff then first learnbd that the certificate of search was misleading, and the entry of satisfaction on page 543 an error. He intervened as defendant in Henry’s suit on the mortgage, and counsel on both-sides joined in a letter to William J. Binney (the present appellant), executor of Horace Binney, Jr. (who had died in 1870), suggesting that he, as executor, should pay Musson’s administrator the amount sued for. William J. Binney referred them to his brother, Charles C. Binney.</p> <p>Musson’s administrator obtained a judgment for $4,457.12 in 1883, and on April- 21, 1884, this court affirmed the judgment. (Brown v. Henry, 106 Penn. St. 262.)</p> <p>Under this judgment the premises, No. 1117 Lombard street, were taken in execution and sold by the sheriff for $3,500 bn June 2, 1884, and Morris Brown then filed this bill.</p> <p>Upon finding these facts the Master further found that there was no fraud, actual or constructive, on the part of Horace. Binney, Jr., in the satisfaction of the mortgage, but that by mistake, and mistake alone, he wrote his name on the wrong page. He therefore recommended that the bill be dismissed.</p> <p>Exceptions were filed to the Master’s report, and the cause was argued before Ludlow, P. J., and Finletter, A. J., and re-argued before the full bench. The death of Yerkes, A. J., before any decision, occasioned a second.re-argument. On March 13,1883, Ludlow, P. J., dissenting, the court sustained the plaintiff’s exceptions and referred the case back to the Master to state an account, Gordon, A. J., delivering an opinion, which, after quoting the facts, proceeds :—</p> <p>Upon these undisputed facts of this case the Master reports a decree dismissing the plaintiff’s bill upon the ground that the act of Mr. Binney in entering satisfaction of the mortgage was merely a mistake and not a fraud. Though the Master does not so state, it is to be presumed that he founds his conclusion dismissing the bill upon the application of the statute of limitations, holding that since the plaintiff’s action was not begun until July 16, 1884, it was barred by the statute. He does not refer to the statute of limitations either in his reasoning or his finding. Neither does he report when he finds that the plaintiff’s right of action accrued. It may be presumed, however, that he adopted the view of defendants’ counsel upon this subject, which was that the right accrued when the plaintiff parted with his money in purchasing the property. There is nothing in the Master’s report itself, however, to indicate what his conclusions were upon this subject. He does not indeed state that branch of the contention at all, or in the most remote manner present the question as to whether the plaintiff’s right of action accrued when he purchased the property, or when demand was made upon him for the payment of the mortgage, or when suit was brought to enforce payment, or when judgment was entered on the verdict, or when final judgment was rendered by the Supreme Court, or when as a result of all these things the sheriff sold the property and the plaintiff was dispossessed. While all these questions are of importance in determining the plaintiff’s right in this proceeding, especially in the Master’s view of the legal aspect of Mr. Binney’s act, yet they are not touched upon in the report. The Master merely finds that Mr. Binney’s act was a mistake and not a fraud, and that therefore the plaintiff’s bill should be dismissed......</p> <p>We may as well, first, dispose of one proposition contended for by defendants’ counsel, and apparently subscribed to by the Master. It was urged that fraud could not be imputed to Mr. Binney’s act unless he was shown to have been guilty of an actual fraudulent intent, and that in the absence of direct proof of malafides, whatever else his act was, it was not actual fraud. There is, however, such a thing as legal fraud, to which the law, without proof of fraudulent intent, gives the full legal consequences of actual fraud. We were referred to a dictum of Bramwell, L. J., in Weir v. Bell, L. R. 3 Ex. D. 238, in which he repudiates the term “ legal fraud,” and says that he can conceive of no fraud not actual fraud, and that to his mind the words “ legal fraud ” have no more meaning than legal heat or legal cold, legal light or legal shade. It is sufficient in reply to this sweeping criticism of the learned lord justice to say that the term “ legal fraud ” is used and recognized in every text-book upon equity and every treatise upon fraud that is found in our libraries, and that so far as Pennsylvania and other states are concerned, our reports abound with cases in which acts innocent of moral guilt have been held to be legal fraud, and treated in the same manner as actual fraud.</p> <p>In Bank v. Forster, 8 Watts 12, it was held that the neglect of the cashier of- a bank to officially notify the directors that his discounted notes were due and unpaid, was such a failure of duty, even though he believed the directors knew the fact, as to amount to a fraudulent concealment, and be a bar to the statute of limitations. In so deciding, Judge Rogers .says: “ In justice to the defendant, I must say that we put this case on the ground of felony without the slightest idea that there was on his side any intentional concealment or meditated fraud whatever.”</p> <p>Judge Black, in the case of Kaine v. Weigley, 22 Penn. St. 179, says: “It is sometimes said that fraud is to be proved, and is never to be presumed. This proposition can be admitted only in a qualified and very limited sense. It is not true that fraud can never be presumed. Presumptions are of two kinds, legal and natural. A sale of chattels without delivery or a conveyance of land without consideration is conclusively presumed to be fraudulent against creditors, not only without proof of any dishonest intent, but in opposition to the most convincing evidence that the motives and objects of the parties were fair. This is an instance of fraud established by mere presumption of law.”</p> <p>In Kisterbock’s Appeal, 51 Penn. St. 483, Judge Agnew says: “ The question of constructive fraud has nothing to do with this case. An act innocent in the intention may be so injurious in the 'consequences that the law declares it to be a fraud and forbids it. Out of the act the law constructs the fraud, though not tainted with actual fraud.”</p> <p>Many cases from our reports might be cited to the same effect, but we will refer only to one other, in which the last cited case of Kisterbock’s Appeal was expressly affirmed. Mitchell v. Buffington, 10 W. N. C. 361, was a case in some respects much like the present. It was an action to recover damages for the wrongful satisfaction of a judgment by the defendant, who set up the bar of the statute of limitations, and the court held that his act was a fraud, that until its discovery by the plaintiff tolled the statute. Judge Sterrett, in the opinion of the court, says: “ All the presumptions are against his innocence in the transaction and every just inference points to it as an actual fraud. But even if he was not actuated by any improper motive, the act would nevertheless be fraudulent in its result. An act innocent in the intention may be so injurious in its consequences that the law declares it to be a fraud......But the mantle of charity, broad as it is, will not cover such a transaction as that disclosed by this record. .....As the case stands upon the evidence, his act was a positive fraud on the rights of his assignees, for which he should be compelled to respond in damages, unless he is successfully shielded by the statute of limitations.” The court then hold that, being a fraud, the statute did not begin to run against the plaintiff until he discovered the fraud. It is to be noted that in that case there was no proof of fraudulent motive upon the part of the defendant in entering the satisfaction.</p> <p>The Master in the present case has cited three decisions in support of his finding that Mr. Binney’s act was not a fraud, because there was ho proof of a fraudulent intent: Bokee v. Walker, 14 Penn. St. 139: Graham v. Hollinger, 26 Penn. St. 55; and Dilworth v. Bradner, 85 Penn. St. 238. None of these cases, however, are at all applicable to the present contention, for they were all actions on the case for deceit, the gist of which action is the bad faith of the defendant. Deceit is only one form or species of actual fraud. There can be no deceit without an intent to deceive, and. all that was decided in the cases cited by the Master was that in an action for deceit the intentmustbe proved. This was what Judge Gibson meant in Bokee v. Walker when he said: “This is an action on the case for deceit, but a constructive deceit is a new thing under the sun. There can be no constructive dolus malus.” Of course there cannot. It would be an abuse of language to say there could. That Judge Gibson, however, decided no more than that the dolus must be proved in actions for deceit is apparent from every line of his argument as well as from his citing with approval Lord Hardwicke’s division of fraud into four classes, only one of which is actual fraud.</p> <p>The cases we have referred to above are sufficient to undoubtedly show that there is such a thing, in this state at least as legal fraud, and that certain acts are, independent of whether the motives of the party be immoral or innocent, regarded as and given all the effect of actual fraud. The textbook authorities equally support this view: Kerr on F. and M., 54, 79, 81, and Bigelow on Fraud, 68.</p> <p>None of the causes we have cited, however, were on the equity side of the court. The present proceeding is, and in equity the rule with reference to what constitutes fraud is still broader than at law. It is a doctrine of equity not to define fraud or announce any inflexible criterion for determining it, in order that the courts may not be shackled by any unbending rule upon the subject, but may be free to administer relief according to the facts of each particular case. “ The court very wisely,” says Lord Hardwicke, Lawley v. Hooper, 3 Atk. 278, “hath never laid down any general rule beyond which it will not go, lest some other means for avoiding the equity of the court should be found out. In Story’s Equity, section 1521, it is said : “ Courts of equity not only act in obedience and in analogy to the statute of limitations in proper cases, but they also interfere in many cases to prevent the bar of the statute where it would be inequitable or unjust.”</p> <p>In the recent case of Marsden’s Appeal, 102 Penn. St. 199, Judge Green says: “This is not a common-law action, but a proceeding in equity. While equity will follow the law in administering statutes of repose, it will also take care that such statutes are not used as instruments in the perpetration of frauds. On the contrary, it will prevent such results by refusing to apply the bar of the statute where justice requires it......However it may be at law, it is very certain that equity is not bound to permit the statute of limitations to be used as a' shield or protection to fraud, and is at liberty to deny its application in order to prevent manifest injustice.”</p> <p>In Kirby v. Ingersoll, 1 Harring. Ch. 172, it is said: “ By the term fraud is meant the legal intent and effect of the act complained of. An illegal act prejudicial to the rights of others is a fraud upon such rights, although the parties may deny all intention of committing a fraud.”</p> <p>In his work on Fraud and Mistake, 54, Kerr laj^s down the following doctrine: “It is not necessary in order to constitute a fraud that a man who makes a false representation should know it to be false.”</p> <p>The reason and principle upon which courts of equity move in such cases is well stated by Bigelow in his excellent work on Frauds, 68 : “ Courts of equity do not affect to consider fraud in the light of a crime ; it is not their province to punish, nor have they any censorial authority. They interfere in cases of fraud not in a criminal but in a civil point of view.”</p> <p>With these authorities before us how must this court, sitting in equity, regard Mr. Binney’s act in the present case ? There can be no dispute upon the evidence as to what he did. He wrongfully and illegally wrote upon the margin of a public record satisfaction of a mortgage which he did not own or represent, in which he had no interest, as to which he had no rights to protect, and no duties to perform. So far as the evidence goes, his act was voluntary and gratuitous, as well as unlawful. He knew he had no right to satisfy the mortgage ; he must have known ; it was his duty to know; he had the means of knowing. He was a man of more than ordinary intelligence. Had he desired to do so, it was within his power by the exercise of the commonest intelligence to have ascertained that he was committing a wrong. The page upon which he wrote, had he read but a few lines of it, was. notice and warning to him that he was doing that which he had no right to do. Why did he not exercise common intelligence ? Why did he not read the open page before him ? Is a court of equity obliged to ask these questions, or shall it assume that he did what it was his duty to do, and acted in spite of knowledge ? ■ Or the other alternative — that, having the means of knowledge in himself and before his face at the time he acted, he closed his eyes and sealed his mind to the means of knowing, and did the wrong in reckless ignorance ? Either inference is equally fatal to the innocence of Mr. Binney’s act. 'One who closes his eyes and will not know is quite as culpable as one who, knowing, acts in defiance of his knowledge.</p> <p>Is the court,however, bound to inquire at all as to the motives ■of Mr. Binney farther than his own acts ? It finds that he voluntarily did an unlawful and wrongful act, which he knew he had no right to do, and in the doing of which he was in the ■discharge of no other lawful and proper duty. His duty with reference to the mortgage he assumed to satisfy was only that incumbent upon every other person, in the world except the ■owner — the duty-to let it alone and not tamper with it. Is not such an act as his, under this evidence, both in fact and law a fraud? . Is it necessary before a court of equity can pronounce such .an act a fraud that it shall know the conscience and motives of the man at the time he did it ? Must the innocent party injured by that act show more than merely the act — all that by reason of its secrecy he can show, and all that has been shown by either side in' this case — or must he be asked to do the impossible thing of laying open the mind and conscience of the wrong-doer?</p> <p>■ And what has been the effect of Mr. Binney’s conduct, for that-must to a great extent influence the decision of a court •of equity. By reason of Mr. 'Binney’s wrongful entry of satisfaction,. Morris Brown, this plaintiff, was deceived into believing' that.he was purchasing an unincumbered property, and on the strength of that reasonable belief parted with his money. Subsequently Mr. Binney’s unlawful act was discovered and the plaintiff was evicted from his home, his title was destroyed, and his property was entirely lost to him. We have thus before us a voluntary, unlawful and wrongful act on the one hand, and on the other an innocent plaintiff deceived and seriously injured by that act. Surely if there ever was á case in which a court of equity, to prevent a manifest injustice, and to relieve against the injurious consequences of an illegal and wrongful act, should pronounce that act a fraud, this is the case. There is nothing in the evidence to give any other color to it than that of fraud. All that has been argued to show that Mr. Binney’s act was an innocent mistake is mérely assumption, and is based upon the well-known character of that gentleman for probity. But, as we have before said, that assumption is not a fact of which the court in this proceeding can take judicial notice. We do not by this judgment impeach his general rectitude. We only decide that when he wrongfully and unlawfully entered satisfaction of the mortgage in this case, he did an act which was a fraud upon any subsequent purchaser, who was deceived thereby into parting with his money. His act in so doing was a false and continuing representation of ownership as to any one who might be thereafter misled thereby. It was therefore a fraud, and the statute of limitations would not operate to protect it until its discovery by the party alleging it as the foundation of his right of action, and, the Master erred in not so finding. ■ 1</p> <p>As we have said, the court, before the lamented death of Judge Yerkes, had reached a decision favorable to the plaintiff’s right of recovery upon all the questions raised by the exceptions filed except the one considered in this opinion. It was for this reason that the argument before the court, as at present composed, was confined to the single question we have discussed. In deciding, therefore, that the Master erred in finding that Mr. Binney’s act was not a fraud,'and in dismissing the plaintiff’s bill, we wish the judgment of the court to be understood as also carrying with it a decision upon all the exceptions filed (without formally reciting them) in favor of the plaintiff’s right of recovery against the defendants under the evidence reported. The proceedings are therefore referred back to the Master for the purpose of stating an account in accordance with tins opinion.—</p> <p>Tbe Master thereupon stated an account in accordance with the foregoing opinion and decree, which being reported and exceptions thereto heard, the court made a final decree: “ That the plaintiff is entitled to compensation from the estate of Horace Binney, Jr., deceased, for the loss that he has suffered by reason of the wrongful entry of satisfaction by the said Horace Binney, Jr., on the margin of the record of the mortgage in the first paragraph of plaintiff’s bill mentioned, to the extent of $5,449.42, and that the plaintiff do recover from the estate of Horace Binney, Jr., deceased, the sum of $5,449.42, and that the plaintiff do recover from the estate of Horace Binney, Jr., deceased, the costs of this suit.”</p> <p>From this decree William J. Binney took this appeal, assigning as error:—</p> <p>1. The court below erred in ignoring the fact that the plaintiff’s loss was due to the acts of' other parties than Horace Binney, Jr.</p> <p>2. In holding that the evidence conclusively established, and that the Master found that Mrs. School knew nothing of the School and Faurest mortgage.</p> <p>3. In holding that the testimony failed to show the custom of the recorder’s office, or that the entry of satisfaction was made in accordance therewith, and in holding that such a custom, even if proved, could not relieve a person following it from liability for error in the entry.</p> <p>4. In holding that Horace Binney, Jr., did not sign the entry of satisfaction by mistake, but knew that he had no right to do so, there being nothing in the evidence to give his act any qther color than that of fraud.</p> <p>5. In assuming that the Master founded his conclusion, in dismissing the bill, upon the application of the statute of limitations.</p> <p>6. In holding that in Pennsylvania a court of equity requires less proof of intent in establishing non-contractual actual fraud than is necessary at common law.</p> <p>7. In holding that legal fraud is something “to which the law, without proof of fraudulent intent, gives the full legal consequences of actual fraud.”</p> <p>8. In holding that the act of Horace Binney, Jr., was a false and continuing representation of ownership, by which the plaintiff was misled, and that, it being thereby 'a fraud, the statute of limitations would not run till its discovery.</p> <p>9. In holding that the plaintiff’s claim, even if valid, could be increased by interest accruing after his discovery of the mortgage on July 12, 1881.</p> <p>10. In not so moulding its decree as to protect the defendants against Mr. Carver’s claim for the loss of his mortgage.</p> <p>11. In entering the decree of July 3, 1886.</p> <p>12 In not dismissing the plaintiff’s bill.</p>

<p>No. 252 January Term 1887, Sup. Ct.</p> <p>This was an ejectment by Thomas Jones and Catharine, (late Kate Williams), his wife, in right of said wife, Owen Owens and Grace Owens (late Grace Williams), his wife, in right of said wife, and David Williams by Thomas R. Hughes, his guardian, against Jennie Bland, Willis O. Smith, Jennie Smith and Margaret Brown, to recover the property No. 125 Wyoming street, Philadelphia.</p> <p>On the trial, the plaintiffs rested after having introduced evidence of the facts sufficiently set forth in the opinion of this Court, whereupon on motion of the defendants a judgment of compulsory nonsuit was entered. A motion to vacate the judgment of nonsuit was afterwards denied, the court, Henby Reed, A. J., delivering this opinion:—</p> <p>This case, which has already been passed upon more than once, comes now before the court in a shape which differs essentially from any in which it has before been presented.</p> <p>The plaintiffs show that Grace Bland, under whose will they claim, was the grantee of the premises in dispute in a deed made by one Ford in the year 1865, and that she went into possession, occupying the whole or a portion of the property with her husband, Aneurin Bland. No purchase money was paid by her, as far as the evidence showed, and no title or any act indicative of a claim of title was shown on the part of her grantor, Ford. The evidence also showed that the defendants, Jennie Smith and Willis O. Smith, were respectively the second wife of Aneurin Bland (whom he married after the death of Grace Bland), and the second husband of Aneurin Bland’s widow, Jennie. But there was no evidence that the defendants claimed either under Grace Bland or Aneurin Bland.</p> <p>For all, therefore, that appears in this stage of the controversy, the suit may be merely a struggle for the possession of land between persons who are alike intruders upon it, and to settle such disputes courts of justice do not sit.</p> <p>The case of Jones v. Bland, 112 Penn. St. 181, proceeded upon a dissimilar state of facts. There was there some proof of the payment of purchase money by Grace Bland, and the issue below had been made to turn exclusively upon a single question, namely, that of Ford’s possession, which was at best but one element in the case.</p> <p>The motion, therefore, to take off the nonsuit is refused.—</p> <p>The plaintiffs then took this writ, and specified that the court below erred in entering the judgment of nonsuit and in refusing to vacate it.</p> <p>The case was in this court before upon a similar state of facts and is reported in 112 Penn. St. 176.</p>

<p>No. 31 January Term 1887, Sup. Ct.; court below, No. 48 June Term 1885.</p> <p>In tbe Court of Common Pleas a certificate from tbe Court of Quarter Sessions of an appeal on tbe part of E. B. Lamoreux from the report of viewers awarding him damages in the sum of $500 in the matter of the laying out of a public road in Jackson and Lehman townships, Luzerne county, was filed. By agreement of parties tbe title of the cause was afterwards amended so as to read, E. B. Lamoreux v. The County of Luzerne, and on the same day motion was made to strike off the appeal for reasons filed. Subsequently on argument the rule was made absolute, Charles E. Rice, P. J., delivering an opinion:—</p> <p>The act of June 13, 1874, P. L. 283, which was passed for the purpose of carrying into effect the 8th section of article XVI. of the Constitution, gives an appeal to either party “ in all cases of damages assessed against any municipal or other corporations, or individuals invested with the privilege of taking private property for public use, for property taken, injured or destroyed by the construction or enlargement of their works, highways, or improvements.” Judge Edwell has held in a carefully considered opinion that the foregoing section does not apply to proceedings for the opening of township roads, and has assigned two reasons for his conclusion: first, because a county is not a municipal or other corporation within the meaning of the Constitution and the act under consideration ; second, because it is not invested with the privilege of taking' private property for public use for highways: Freeze v. Col. Co., 6 W. N. 145. The arguments adduced by the learned judge to sustain these propositions cannot be easily answered, nevertheless the current of opinion seems to bé in the direction of a more liberal construction of the statute than his first proposition would permit. Being a remedial statute it is entitled to such construction; at all events, the following conclusions would seem to be warranted by the later decisions: First, an appeal' lies where, in the exercise of the right of eminent domain, land is taken for the use of a municipal corporation, notwithstanding the proceedings for its appropriation were neither instituted by its authority nor under its control: Bachler’s Appeal, 90 Penn. St. 207; Robinson v. S. Chester, 2 Ch. Co. R. 441; In re Frankford, etc., Turnpike, 42 Leg. Int. 46; and see Hendricks’ Appeal, 103 Penn. St. 358. Second, the fact, that in such a case the damages are assessed .against a county, and that a county is not, strictly speaking, .a municipal corporation, is not in itself conclusive against the right of appeal: Bachler’s Appeal, supra. If the case turned upon that point we would also be inclined to hold that, wherever a county is invested with the privilege, and in the exercise thereof takes private property for public use, the act applies: Brower v. Chester County, 1 Pa. C. C. R. 1. But assuming, as is declared in Bachler’s Appeal, supra, that Section 8, article XYI. of the Constitution secures an appeal and a trial by jury for damages, wherever private property is taken by a municipal corporation for public use, and the act of June 13,1874, furnishes the remedy thus secured to owners, where the sufficient provision for trial by jury already existed; ” and still it does not follow that an appeal lies in the present case. If the act contemplates a county at all, it is as a body corporate and not as a geographical division of the state. But as a body corporate a county is not in any sense of the terms “ invested with the privilege- of taking private property for public use ” for highways. It cannot institute nor defeat the proceedings for that purpose; it cannot open the road after it has been decreed; and after it is opened it has neither ownership in nor control over it. In this respect its power differs materially from that of a borough or city. How, then, can it be said that the damages assessed against the county are for property taken, injured or destroyed by the construction of its highway? And if this cannot be said, the subject matter of the appeal comes neither within the letter nor spirit of the act. For, assuming that the act was intended to give an appeal and trial by jury to every person who has a constitutional right to claim compensation for property taken for public use, it must be remembered that the appellant does not come within that class. The six per cent, allowance for roads embraced in all the original grants from the proprietaries and the commonwealth makes his claim for compensation a matter of grace on the part of the legislature, and not of constitutional right: McClenachan v. Curwen, 6 Binn. 509; Plank Road Co. v. Thomas, 20 Penn. St. 91; Com. v. Fisher, 1 P. & W. 465; Workman v. Mifflin, 30 Penn. St. 370; Township of East Union v. Cowrey, 100 Penn. St. 362. We cannot better sum up the case than in the forcible language of Judge Elwell: “From the commencement of proceedings to lay out a public road to its being finally confirmed and opened for use, and from'thence through all time, a county has nothing whatever to do with it, except to pay damages and expenses in compliance with a general law of the state. The taking is by the state by right of eminent domain, in the manner provided by its laws, through the agency of the judiciary. It has always been the policy of the state to make provisions for necessary highways for all its citizens; and to that'end, in grants of its lands there was added six per cent, for roads, and the courts of the state were clothed with authority to appoint viewers and to establish roads. This may be done without the consent or even against the protest of the county officials. They are invested with no power, authority, or privilege pertaining to the matter: ” Freeze v. Columbia Co., 6 W. N. 45.</p> <p>Now, September 6,1886, the rule .is made absolute and the appeal is stricken off.—</p> <p>To this decree the appellant excepted and then took this writ, assigning that the court erred: 1. In holding that a county as a body corporate is not in any sense of the terms “invested with the privilege of taking private property for public use ” for highways. 2. In holding in their opinion that the subject matter of this appeal comes neither within the letter nor spirit of the act of June 13, 1874, P. L.. 288. 3. In holding that there is no appeal from the award of viewers in a county road case from tlie Quarter Sessions to the Common Pleas. 4. In making the rule to strike off the appeal absolute.</p>

<p>No. 54 January Term 1886, Sup. Ct.; court below, No. 219 April Term 1883, C. P.</p> <p>The case below was an action for negligence by Jacob Peters against the Pennsylvania Railroad Company.</p> <p>On the trial before John Dean, P. J., of Blair county, holding special term, it appeared that on the morning of October 5, 1882, Jacob Peters, the plaintiff below, bought a ticket from Unionville to Port Matilda, on the Bald Eagle Valley Railroad, leased and operated by the defendant company. The cars being somewhat crowded he found a seat in the forward end of the passenger compartment of the smoking-car, about 85 feet from tbe rear door of tbe car which was the only exit. When the train stopped at Port Matilda, Mr. Peters, who was a corpulent man and about 70 years of age, arose and made his way toward the door and down the steps, and as he reached the ground he was thrown and severely injured.</p> <p>The plaintiff testified in his own behalf that he was hindered in his efforts to get out by persons in the passage way and on the platform to enter the car: “ And then just as I went to get down the steps I noticed the car was in motion; I am not certain whether it was on the first .step from below or the second, so I made a spring to get out and jumped,” when he was thrown upon his side down below-the road. On cross-examination the witness said, “ Just as I was going to step off the car it started and then I was too far and then I could not take myself back again.” Geo. T. Jones testified: “ He seemed when he got to the last step, as though he was going —he-stepped as though he was afraid to go, but by that time he had got toó far, and he stepped right off the end.” Other witnesses corroborated the plaintiff. There was also testimony on the part of the plaintiff that the cars had stopped at the station 10 to 20 seconds only. On the part of the defendant there was testimony that the train had stopped its usual time about two minutes-; and also that it had started while the plaintiff was moving along the passage way before he reached the door. It also appeared that the train was signalled to start by a brakeman and started when the engineer had not yet entered the cab, and that there were many passengers entering the train at that station, some of whom entered before the passengers stopping had alighted.</p> <p>The testimony being closed the defendant requested the court to instruct the jury that, admitting the testimony of the plaintiff to be true, it showed he contributed to the injury complained of; that without his negligence in leaving the train when in motion the injury would not have happened; and that therefore he could not recover. The court refused the points of the defendant and inter alia charged as follows :■—</p> <p>The plaintiff alleges that his injury resulted from the negligence of the railroad company, this defendant. It was the duty of the defendant to stop such reasonable time as was necessary for him to get off, and plaintiff in making an effort to get off, was bound to use reasonable diligence and promptness. If the train had not moved too soon, he alleges, he could not have been injured by getting off as he did. The defendant alleges that on this statement of undisputed facts the plaintiff was guilty of contributory negligence, and therefore cannot recover. Where the defendant has been negligent in the performance of what is conceded to be a duty and an injury has resulted, yet if the injured party by his negligence has contributed to the injury, there can be no recovery. The law will not undertake to measure the degree of negligence of the two parties, nor will it undertake to apportion the damages which have resulted from an injury that is occasioned by mutual negligence so that each shall bear his share. It says simply and peremptorily, where there has been negligence on the part of the defendant, and contributory negligence on the part of the plaintiff, and an injury has resulted, there can be no recovery.</p> <p>The defendant, admitting it was the duty of tbe company to stop the cars a reasonable time to permit the passengers to get out, alleges that even if the train moved unreasonably soon, the plaintiff knew it was moving, and so knowing, got off. This, it is alleged, was an absence of ordinary care; because under the circumstances no man of ordinary care would step from or jump from a moving train.</p> <p>If the admitted or undisputed facts were all the facts in the case bearing on this issue, we would without hesitation instruct you that, under the law, the plaintiff could not recover, because his own negligence contributed to the accident. Ordinarily it is negligence to get on or off a moving train, and one who does so and is injured cannot recover from the railroad corporation, no matter what may have been the negligence of the corporation. It is notorious that it is dangerous to get on or off a moving train; a man who voluntarily risks this danger and sustains injuries, is negligent, he does not show ordinary care; he shows absence of ordinary care if he performs the act voluntarily. The defendant alleges, the plaintiff’s act being voluntary, the rule of law is applicable in this case. [It is true this is the general rule, but there are exceptions to it. Whether this case comes under the general rule or is an exception, depends on whether there are other facts or circumstances in the case which rebut the presumption of negligence generally warranted by the mere fact of getting off a moving train. Whether there be such facts in this case, we are clear, is a question for you and not for us.]6......</p> <p>Now the first question here of fact for you to determine is, did the train stop such a reasonable time at Port Matilda as to permit him to get off safely; that is a question of fact and it is for you. It was his duty when the train stopped to get up, proceed to the door and step off. He could not sit still and thus consume the time which was given by the company to get off; nor could he linger on the way .for conversation or to suit his whim. The train stopped for passengers to get off. It was his duty to do so with reasonablé celerity, considering his age; he was not bound to move with the same swiftness as a young, active man, for old persons have a right to reasonable time to get off a train at their destination as well as young persons. Did the train stop such time as under the circumstances was sufficient? There is not according to the evidence any fixed time to stop at any station. It stops generally at Bellefonte five minutes, two minutes at Unionville, and two minutes at Port Matilda, but no fixed time according to the evidence. The stoppage is timed by the amount of work to be done; that is, by the number of passengers to get on or off and the amount of baggage to put on or unload. Now the evidence on each side as to the time of stoppage you must consider. That is the first question of fact for you.</p> <p>[The court here reviews the testimony on both sides with reference to the time the train stopped at the station.]</p> <p>If the train did not stop such reasonable time as was sufficient to enable Mr. Peters, moving with reasonable promptness, to get off while it was still standing, then was he guilty of negligence in getting off while it was moving. [This is the next question. In order to recover at all on the part of the plaintiff, he must establish negligence on the part of defendant to the satisfaction of the jury; but yet, after he has once done this, does the evidence show contributory negligence on his part; the burden then is on the defendant to show such contributory negligence where such negligence is set up as a defence.] 7</p> <p>It is alleged here by the defendant that not only does the evidence of the defendant show contributory negligence, but that the plaintiffs own evidence shows such negligence. What does the evidence show? That is the second question for you in the case, should you find against the defendant on the first question submitted. The defendant alleges, the plaintiff in getting off a railroad car while it was moving, and when he knew it was moving, was guilty of contributory negligence. As we have stated; generally the presumption of negligence is warranted from this fact alone. But this is not always the case. It is dangerous to jump or step from a moving train. This is a fact known to all persons of ordinary intelligence. [If a man does voluntarily that which is generally accompanied by risk of life or limb, does that which a person of ordinary prudence would not do, therefore he is presumed to be negligent. But this is a presumption to be drawn by you. It is a presumption which may not be warranted in view of all the other facts surrounding the act. Circumstances attending may show that this presumption is not warranted in the particular case.] 8 A man may jump off the cars as a matter of safety; because of the position he occupies in the car it might be ex-ttemely hazardous to remain ; for example, if a collision were imminent; or he may step off at the invitation or command of the conductor. It would depend upon the particular circumstances of the case as to whether this presumption is warranted. The defendant alleges, in this case, that the car commenced to move while Mr. Peters was still in the aisle, before he had reached the door. S. M. Hall, a witness for the defence, states that he was standing on the platform of the station and he noticed a man walking in the aisle; he noticed the same man coming down the steps, and while the man was walking in the aisle he noticed the train was then moving; that he saw him come out of the door and down the steps, step off and fall; that then the car had moved the length of itself. Mr. Thompson states that he was sitting in the front of the rear car; that he had got out and was standing on the platform of the station when the car started; that he saw no one get off; that the platform was clear when he came down; leaving the inference to be drawn that Peters, the plaintiff, was still in the car and must have been in when the train commenced to move. Mr. Rnmbarger, another witness for the defendant, testifies that he, the plaintiff, was about a foot past him when the train commenced to move. He said he was sitting in the car; the witness did not get out; he says, he was about a foot past me towards the door when the train commenced to move. Mr. Hardy, another witness who got on, testified that they met him right at the door; the “floating gang” had got on and they were entering the door when they met him. The distance the ear had moved, the length of it, when plaintiff fell, shows it must have commeneed to move before he got to the door. Now the plaintiff in reply says, that as soon as the car stopped he, the plaintiff, got up and moved towards the door. This is the testimony of the plaintiff; and he further states that he did not stop anywhere voluntarily, but some persons coming into the car obstructed the passage somewhat, and that he asked them to stand aside and they did so, and when he reached the steps, the lower step or second step from the last one, the car was then moving; that he was met there on the platform or steps by these men coming in. It is argued his first knowledge of the car being in motion was when he was on the steps. [One of the men who got on, Bennett, was going up as Peters came down, yet Bennett got on just before the car started. ]18 It is alleged by the plaintiff that the car had not moved until he got on the steps and if it had moved, the movement was imperceptible to plaintiff and others in the car but may have been noticed by those outside; that the motion might have been perceptible to those in their seats, but not to those standing on their feet, or those hurrying in or out; especially would this be so, it is alleged, if their attention was absorbed in accomplishing the act of getting out or in. The motion, it is alleged, would not have been perceptible to them in a hurry to get in or out of a ear, or while going up or down the steps.</p> <p>We have no hesitation in saying to you that, if the plaintiff was in the car in a place of safety when the car commenced to move, and he knew it had started while he was in the body of the car, ordinary prudence and care demands that he resume his seat and await the next stopping place. It would be negligence, if not recklessness, to go from the inside of a car and get off when he knew it had started from the station. It was negligence, if not recklessness,, to go out on the platform and j ump from a moving train, or step from a moving train, if he started from his seat knowing that the train had started; nothing could have prompted him to this except the inconvenience of being carried to the next station, and being subjected to the trouble of going back. [But if the car was not moving, or, if moving, moved so slowly that he did not observe it until he got on the steps, then it is a question for you whethér under the circumstances it was negligence in him to get off. What would a man of ordinary prudence have done under the same circumstances, would be the question, i'f he first noticed the train was moving when at the point he said he noticed it, on the second or lower step; not what a prudent man not in his situation might think ought to have done, but what ought to have been done under the circumstances, would be the question.]9 We all know that here, after coolly and dispassionately examining and weighing the evidence, and after hearing the narratives of the witnesses, that it would probably have been more prudent if he had gone back into the car. [But what would a prudent man have done standing on the car steps and just at that moment observing for the first time that the ear was slowly moving ? — Standing on the car steps and observing for the first time the car slowly moving, taking him away from his destination with the difficulty and danger, if any there were, of a man of his age and habit getting safely up the steps into the car ? — What ought to have been done with these surroundings in the exercise of ordinary prudence ? You are to judge of that.]10 If in the exercise of ordinary prudence he ought to have refrained from stepping off, then he was guilty of contributory negligence, and cannot recover. If he ought to have gone back into that car in view of 'all the evidence that has been submitted to you, he was negligent in not going back, and cannot recover. [If, however, situated as he was, he did that which a prudent man under the same circumstances, in the same situation, would have done, then no negligence can be imputed to him, and he can recover, if you find the company was guilty of negligence in not stopping the train a reasonable time, and his injury resulted therefrom.]11 You will consider all the evidence, gentlemen, bearing on tMs question as to whether he was guilty of contributory negligence. We have not mentioned near all the testimony. You will consider all the evidence bearing upon this point so far as it is material. If, under all the evidence and instructions we have given you, you find the case is with the defendant, you have simply nothing more to do but to render a verdict for the defendant. But, if the case is with the plaintiff, under all the evidence and instructions we have given you, then it is your duty to ascertain the damages he is entitled to. Damages are of two kinds, vindictive and compensatory......</p> <p>Under this charge the jury found a verdict for the plaintiff for $3,000, and, a new trial being refused and judgment entered, the defendant company took this writ assigning for error:</p> <p>1, 2, 3, 4, 5. The answers to the defendant’s points substantially that the court should have instructed that the plaintiff was chargeable with contributory negligence and ought not to recover.</p> <p>6. That part of the charge embraced in [ ] 6</p> <p>7. That part of the charge embraced in [ ] 7</p> <p>8. That part of the charge embraced in [ ] 8</p> <p>9. That part of the charge embraced in [ ] 9</p> <p>10. That part of the charge embraced in [ ] 10</p> <p>11. That part of the charge embraced in [ ] 11</p> <p>12. That part of the charge embraced in [ ] 18</p>

Nos. 70, 70½, 71 July Term 1886, Sup. Ct.; court below, Nos. 72, 73, 74 December Term 1885.

No. 249 January Term 1887, Sup. Ct.; court below, No. 749 September Term, 1885, C. P. This ease arose in the court below on a petition filed October 15, 1885, by Samuel H. Warner, for a commission in… Held: attended by the petitioner, the respondent in person, and by counsel on both sides.

<p>Nos. 361, 363, 420 January Term 1887, Sup. C.t.</p> <p>In tbe auditing and distribution of a balance of 155,578.13 shown by the first and partial account of the last will and testament of John Reichard, deceased, it appeared that the testator died on August 19, 1884, leaving to survive him no widow, but</p> <p>Children, as follows, to wit: George N. Reichard, Henry 0. Reichard, Catharine, intermarried with Charles Leonard, John Reichard, Jr., Magdalena (called in the said will “Helena ”), now intermarried with J. H. Swoyer' (formerly with M. A. Holmes), and Charles W. Reichard. ■</p> <p>Also grandchildren, as follows, to wit: Children of a deceased daughter, Albertina, who died before, decedent, to wit: Harry E.,-William, Jessie, Anná ■■ and ■ Marie Swoyer, all minors, having for their guardian John M.'Crane, Esq. Also James Hancock, son of a deceased daughter, Julia, a minor, having as his guardian ad litem John M. Crane, Esq. Also two living children of'the above' named Helena, to wit: Mary Holmes, of age, and Albert Edward Swoyer, a minor, having as his guardian The Miners’ Savings Bank of Wilkes-Barre, Pa.</p> <p>A contest arose upon the construction and effect of codicil .No. 2 to the will of said decedent. The said will, dated April 1, 1880, and with its codicils admitted to probate October 14, 1884, after the appointment of John Reiehard, Jr., Andrew H. McClintock and Harrison Wright, its executors, provided for certain pecuniary legacies, and proceeded:—</p> <p>Eighth. Subject to the provisions aforesaid, I give, devise and bequeath all my estate, real, personal and mixed, in manner as follows:</p> <p>(A) To my son George N. Reiehard one equal sixth part thereof.</p> <p>(B) To my son John Reiehard, Jr., one equal sixth part thereof.</p> <p>* * * * * * •*.</p> <p>(D) To John Reiehard, Jr., Andrew H. McClintock and Harrison Wright and their heirs one other equal sixth part thereof. In trust nevertheless to collect and receive the annual income or profit arising therefrom and to pay over the same less all proper costs, charges and disbursements to my daughter Helena, wife of M. A. Holmes, for and during the period of her natural life, her own receipt whether married or sole to be a good and sufficient voucher therefor. And from and'after the death of my said daughter in trust to pay the said net annual income or profits to the child or children of my said daughter who shall be living at the time of her death and the issue of any deceased child or children in equal parts (such issue taking always by representation), until they shall severally and respectively attain the age of twenty-one years. And upon the further trust to pay over, convey and deliver to such child or children and such issue of any deceased child or children when and as they respectively attain the age of twenty-one years his or her proper and respective share of the principal or corpus of said trust fund or estate.—</p> <p>Part (C) of this eighth item was a provision for Catharine Leonard and her children the same as part (D) above. Parts (E) and (F) bequeathed each “ one other equal sixth part ” to the same persons in trust for Charles and Henry respectively, the income and principal payable as directed. The twelfth item related to a lease made of a brewery property to George N. and Henry and its continuance. The other parts of said will are not material to the questions raised.</p> <p>A codicil, No. 2, dated September 21, 1888, was as follows:</p> <p>Item, I do hereby revoke the appointment of Andrew H. McClintock and Harrison Wright to be executors and trustees under my last will and testament, and in their stead now nominate, constitute and appoint George N. Reichard and E. S. Osborne as my executors and trustees, to do all those things needful and necessary to carry out my said will and testament; my said will being hereby so amended as to substitute therein the names of the said George N. Reichard and E. S. Osborne, in place and instead of the names- of the said Andrew H. Mc-Clintock and the said Harrison Wright as executors and trustees.</p> <p>Item, Item (D), paragraph eight, wherein by my will I have directed my executors to collect and receive the annual income and profit arising out of the one sixth part of my estate, and to pay over the same less costs and charges to my daughter Helena, for and during the period of her natural life, is hereby revoked. And instead thereof my said executors, John Reichard, Jr., George N. Reichard and E. S. Osborne, are hereby directed to pay to my said daughter Helena, now intermarried with J. H. Swoyer, as soon after my death as they conveniently.can the sum of two thousand dollars.</p> <p>Item, The twelfth and last paragraph in my said will is hereby revoked.</p> <p>In witness whereof,.....</p> <p>Upon this contention, Rhone, P. J., auditing judge, held:</p> <p>The trusts created in said item D are two very distinct ones: 1st. For the use of Helena for life. 2d. For'the use of her children during minority, with a fee to them afterwards.</p> <p>The codicil reads.....</p> <p>The other five children of the testator claim that this codicil revokes all the trusts created by the said item D of the will, while, for the children of Helena, it is contended that no more of the will is revoked by the codicil than that which relates to the bequest to her.</p> <p>In Williams on Ex., p. 8. n. (q.), ed. 1877, the rule of law is stated to be that “ a codicil does not interfere with any of the specific provisions of the will, unless its 'language naturally and obviously produce such result, or the terms of the codicil expressly recognize the alteration. See also p. 185, n. (1). In Jarman, p. 176, n. (62), the rule is stated to be that a codicil does not disturb the dispositions of the will further than is absolutely necessary for the purpose of giving effect to the codicil. This rule is recognized in Lewis’s Appeal, 42 Leg. Int. 336, and Spang v. Hill, 2 Woodw. 45. The burden then lies upon the five children, for the will clearly gives to Helena and her children the whole of one sixth of the estate.</p> <p>Those claiming adversely to the grandchildren contend that codicil No. 2 properly reads “Item D, paragraph eight..... is hereby revoked, and instead thereof” etc.; and that the words intervening are clearly descriptive of the whole.paragraph ; while on the other hand, for the grandchildren, it is claimed that the said intervening words are only descriptive of their mother’s bequest. By his codicil the testator clearly intended to drop from item D, paragraph eight, the provision therein made for his daughter Helena, and to substitute therefor the sum of $2,000, but we cannot conclude that anything more was intended.</p> <p>In the same codicil he revokes the whole of paragraph twelve of the will in most clear and technical language, and his intention to revoke the appointment of two of the trustees named in the will, and to substitute two others, is stated with great clearness.</p> <p>The bulk of his estate was, by the will, divided into six equal parts, and so demised to his six children then living, giving to two, sons a clear estate, and to the rest a use for life, with remainder to their children. To give to Helena and her children $2,000 ás a substitute for one sixth of the whole estate, and to increase the shares of the rest to fifths cannot be allowed on so strict a construction as is contended for.. After so carefully disposing of his whole estate, we are loth to conclude that he intended to die intestate as to one sixth of his estate, and leave unsettled the question as to whom the same should be distributed, and under the rule of law we feel bound to conclude that the codicil can be made to have full effect upon Helena’s portion alone. It seems very fair to apply the language of the codicil to Helena’s life estate, and to no other part of the item D. The language used covers her bequest exactly, and does not fairly and reasonably embrace the whole of said item.</p> <p>The next question is, from what fund shall the bequest of $2,000 given by codicil to Helena be paid? The testator says, my said executors “are' hereby directed to pay (the same) as soon after my death as they conveniently can.” So it seems that this is a general legacy, and to be paid out of the general fund.</p> <p>Assuming so much as we have said to be correct, then the inquiry follows, what: shall be done with the income on the one sixth of the estate bequeathed to Helena for life ? Has the decedent as to this died intestate, or does it drop into the lap of the children of Helena, or does it fall to the residuary legatees? We cannot say that the testator intended either of these distributions, for it seems most likely the question never presented itself to his mind, hence its distribution must' be made as the rules of law direct.</p> <p>Our first .impression was that the said income would go to those who are to take 'the remainder after Helena’s death, to wit, her children; but it now seems quite clear this never could have been, contemplated, as the result would be to give them the benefit of .the bequest to their mother of $2,000, t<? the 'injury of-,the other five residuary legatees. The state of facts here presented does not bring; this case under the rule that wheie the enjoyment of an estate is postponed for the use of one. for life it vests in fee immediately in case the life tenant’s interest' be h’ele'a'sed or extinguished: Coover’s Appeal, 74 Penn, St. 143, for in such case no one but-the remainder-men are interested. In such cases no one is injured: Gast v. Porter, 13 Penn’. St. 533. Here the bequest is not to the children of Helena, subject to the life estate of their mother, but is to trustees for distinct uses at specified times and under certain contingencies. The persons who are to be the ultimate beneficiaries are not to be determined now, but at Helena’s death — they are to be those of her children “ who shall be living at the time of her death, and the issue of any deceased child or children, in equal parts,” etc. The estate bequeathed, under.the terms of the will, is personalty. The real estate is to be converted into money by the executors, and this converts it into personalty: McClure’s Appeal, 72 Penn. St. 414, and cases there cited. Until.it is ascertained by the death of Mrs. Swoyer who are the Survivors, it cannot be known to whom the estate will belong, and of course it is not vested, but is contingent: Pleasanton’s Appeal, 99 Penn. St. 362; Seibert’s Appeal, 13 Idem 501; Dunwoodie v. Reed, 3 S. & R. 435.</p> <p>Where the contingency is attached to the legacy itself, and not merely its payment, the legacy itself is contingent; and the want of a bequest over makes no difference. It becomes merged in the residue, if it never vests: Gilliland v. Breden, 63 Penn. St. 397.</p> <p>If this bequest had been to Helena for life, and at or after her death to her children, naming them, then the estate might be considered as vested in them; but here the estate is vested in trustees until it is determined who of Helena’s children are living at her death: See Chew’s Appeal, 37 Penn. St. 23; King v. King, 1 W. & S. 205.</p> <p>Having established to our own satisfaction that the income which was at first bequeathed to Helena for life does not belong to her children, the only remaining question is, shall the income be distributed to the decedent’s heirs in general, or to those who are to take the residue, of whom Helena is one ?</p> <p>The codicil is to be read as though it were a part of the original will, which would put Helena out of the residuary clause altogether and place her with the prior general legatees. So if we give the disputed income to the residuary class only, she will not be entitled to any share of it; but if we conclude the said income is to be distributed to the decedent’s heirs in general, then she will take one eighth thereof, the grandson, James Hancock, taking one share, and the children of 'Albertina, another deceased daughter, taking another, with those named in the residuary clause.</p> <p>Residuary legatees take lapsed and void legacies, to the exclusion of the testator’s heirs in general, if the terms of the will are comprehensive enough to embrace them : Massey’s Appeal, 88 Penn. St. 470; Woolmer’s Estate, 3 Whar. 478; but this is not the case of a lapsed or a void legacy, but only and simply an intestacy. Kennedy, J., in Woolmer’s Estate, supra, recognizes the rule to be “ that if the gift of some portion of the residue itself fails, where it is given in several distinct shares, the share so failing will not accrue to the remaining shares, but belongs to the next of kin as undisposed of” : citing Bagwell v. Dry, 1 P. Williams, 700. To the same effect is Duffield v. Morris, 8 W. & S. 348, and see Williams on Exrs. ed. 1877, *p. 1460 or p. 1570, n. a, b, c. We therefore direct that the one sixth part of the estate, bequeathed in “ item D, paragraph eight,” be distributed to the trustees na.mp.rl in trust, to pay the income thereof during the life of Mrs. Swoyer to the heirs of the decedent in general, and after her death for the use and benefit of her children, as provided in said item, and that the legacy of $2,000 be .paid to her now out of the funds of the estate before it is divided into sixth parts.—</p> <p>A statement of distribution being made, it was decreed that the accountants pay out the funds in accordance therewith, whereupon George A. Reichard and John Reichard, Jr., took an appeal (No. 361), assigning for error that:</p> <p>1. The court erred in dismissing appellants’ fourth exception to the report of the auditor, which reads as follows :</p> <p>IV. The learned judge erred in finding that the codicil No. 2 to said will did not revoke the remainder in the one sixth part of the said estate given to the children of Mrs. Helena Swoyer in “ item D, paragraph eight,” of the will of said decedent, and in not finding that said codicil revoked the whole of said “item D, paragraph eight,” and all the estates and interests devised or bequeathed in said item, as well to the children of Mrs. Swoyer as to herself.</p> <p>2. The court erred in dismissing appellants’ fifth exception to the report of the auditor, which reads as follows:</p> <p>V. The learned judge erred in not finding that codicil No. 2 revoked the whole of “item D, paragraph eight,” of the will, and that the one sixth part of said estate referred to and mentioned in the said item should be distributed to the other residuary legatees, named in said paragraph “ eight,” in equal shares and in the same manner as the other shares are given to them in said paragraph.</p> <p>John M. Crane, Esq., guardian, also took an appeal (No. 363), assigning for error that:</p> <p>1. The court erred in dismissing appellants’ first exception to the report of the auditor, which reads as follows, to wit: the learned judge (as auditor) erred in finding that codicil No. 2 did not disturb the remainder given to her (Mrs. Swoyer’s) children in the one sixth part of decedent’s estate :</p> <p>2. The court erred in dismissing appellants’ second exception to the report of audit, which reads as follows, to wit: The learned judge (as auditor) erred in not finding that codicil No. 2 revoked the whole of item D,paragraph eight, of testator’s will, and that testator died intestate as to the one sixth of his estate devised by said item.</p> <p>Mary Holmes and The Miners’ Savings Bank' of Wilkes-Barre, guardian, also took an appeal (No. 420), assigning for error that:</p> <p>1. The learned judge erred in not finding that the children of Helena are entitled to the income of the one sixth devised in D, paragraph eight, of the will.</p> <p>2. The learned judge erred in finding that the interests of the said children of Helena are contingent and not vested until the death of their mother.</p> <p>3. The learned judge erred in finding that the interests of the children of Mrs. Leonard and Henry Reichard are vested and not contingent.</p>

<p>No. 419 January Term 1887, Sup. Ct.; Court below, No. 2. -February Term 1887, C. P. in equity.</p> <p>In this proceeding which was by bill in equity, William R. ^Gibbons, the plaintiff below, complained that he was a taxpayer of the city of Wilkes-Barre, and the defendant, the said ¿city, was incorporated a city by act of May 4, 1871, P. L. ¿539, and its supplement of April 2, 1872, P. L. 740, and was ¡authorized by the second section of said supplement “ to levy -and collect annually for city purposes any tax not exceeding itwo per centum on the dollar of the valuation assessed,” and proceeded:</p> <p>3. That the said council is about to levy and collect a tax of two per centum on the dollar of the assessed valuation for the ordinary purposes of conducting the city affairs, viz.: for streets, fire department, sewers, police, lights, salaries, etc., and .in addition thereto the said council is about to levy a sinking fund tax of three mills on the dollar of the assessed valuation, •to be applied to the extinguishment of eight per cent, of the interest and principal of the bonds and funded debt of the said city incurred or refunded since the adoption of the constitution in 1874, and to the extinguishment of three mills on the -dollar of the bonds and funded debt of the city incurred prior to the adoption of the said constitution and not yet paid or refunded.</p> <p>4. That your orator is advised and believes that the said ■council is not authorized to levy, for any purpose whatever, any tax in excess of two per centum on the assessed valuation, and therefore that the three mill tax aforesaid is void, and that the council must provide for the said sinking fund out of the two per cent. tax.</p> <p>Your orator therefore prays:</p> <p><A.) That the said defendant, its officers and agents, be enjoined from levying any tax in excess of two per centum of the assessed valuation of property in said city.</p> <p>(5.) That the council of said city be required by mandatory order of this court to provide for the said sinking fund out of the two per cent, tax levied as aforesaid, and to make appropriations accordingly.</p> <p>(e.) That such other and further relief be granted, etc.</p> <p>To this bill the city demurred and for cause showed, that the act charged was authorized and directed by section 2 of the act of April 20, 1874, P. L. 65, passed in pursuance of section 10, article 9 of the constitution, and by the act of March 23, 1877, P. L. 35, passed in pursuance of section 3r article 15 of said constitution.</p> <p>On argument, the court delivered an opinion:</p> <p>The act of April 20, 1874, P. L. 65, known as the Municipal Indebtedness act, entitled an act to regulate the manner of increasing the indebtedness of municipalities, etc., provides that “ an annual tax, commencing the first year after such debt shall be incurred or increased, equal to at least eight per centum of the amount thereof, snail be forthwith assessed to provide for the payment of the interest and liquidation of the principal thereof.” The city having increased its debt, cannot escape the obligation to levy a tax for its gradual extinction; but is this tax to be levied in addition to the taxes authorized by the charter, or does the obligation still remain to keep all taxes within the limit therein fixed? We remark, in the first place, that this act does not expressly repeal the provision of the charter, and in the second place, that it does not declare that the tax shall be levied in addition to other corporation taxes. In the absence of such expression of intention does a repeal by necessary implication arise?.....Implied repeals are not favored and are never allowed except in cases of strong repugnancy or irreconcilable inconsistency. Especially is this true where the prior act is local and special and the latter act is general; see Brown v. Williamsport, 84 Penn. St. 438; Sifred v. Com., 104 Idem 179 ; Same v. Same, 12 W. N. 380 ; Harrisburg v. Sheck, 14 W. N. 280; O’Malley v. Luzerne County, 15 W. N. 88. We do not think any such inconsistency or repugnancy is shown in the present case. If any inconvenience exists because of the limit fixed by the act of 1872 upon the rate of taxation, it results not from any inconsistency between that act and a general law limiting the amount of debt which a city may incur, and providing a mode for its liquidation, but from the changed condition of affairs in the city, and for relief from this inconvenience she must apply to the legislature. ■</p> <p>We conclude, therefore, that in levying taxes for the gradual extinguishment of indebtedness incurred or refunded since the adoption of the constitution, the council cannot go beyond the two per cent, limit.</p> <p>Is the city, in addition to the above taxes which it must levy for the gradual payment of the indebtedness incurred or refunded since 1874, required or authorized to levy a sinking fund tax under the act of May 23, 1874, as amended by tbe act of March 23, 1877, P. L. 35, and if so, must that tax also be- kept within the two per cent, limit ? Section 3 of article 15 of the constitution provides that “ every city shall create a sinking fund, which shall be inviolably pledged for the payment of its funded debt.” This provision of the constitution is mandatory, and applies as well to funded debts then in existence as to such debts- thereafter to be created. The act of April 20, 1874, the Municipal Indebtedness Act,P. L. 65, carried it out only in part, for that provided for indebtedness thereafter to be incurred or refunded, but not to other funded debt then in existence. This led, as we think, to the insertion of the first clause of section 11 in the act relating to cities, May 23, 1874. The tax there referred to is authorized “in addition to the other taxes of said corporation,” and is to continue only until payment'of the bonds and funded debt be provided for. Possibly, if there were any such debt of the city not fully provided for, the council might levy this three mill sinking fund tax in addition to the taxes authorized to be levied under the charter. But it was admitted on the argument that all the funded debt existing at the date of the adoption of the constitution has been since that time paid or refunded. We must presume that the city is annually levying a sufficient tax under the act of April 20, 1874, P. L. 65, to provide for the payment of the interest and the liquidation of the principal at maturity. If so, the constitutional mandate has 'been carried out, and, to adopt the language of the 11th section of the Wallace act, payment of all the bonds and funded debt of the city has been fully provided for, and hence there is no longer any necessity or authority for levying this particular tax, in addition to the tax which the city is bound to levy under the act of April 20, 1874, P. L. 65, the Municipal Indebtedness act. We may remark, however, that in our opinion the latter act contemplates a tax specially laid for the purpose of paying the interest and principal of the funded debt, and not an annual appropriation out of the general revenues. Hence, the tax mentioned in the bill as levied for that special purpose is not illegal, but the taxes for ordinary purposes must be correspondingly reduced.</p> <p>The demurrer is overruled and the defendant is directed to answer.—</p> <p>Afterwards, no answer having been filed, but the defendant standing upon the demurrer, a judgment was entered pro confesso and a final decree made enjoining and restraining the‘defendant from levying any tax in excess of two per centum on the dollar of the assessed valuation of property liable to taxation for county purposes in said city, either for the sinking fund or for interest on the funded debt, or both ; whereupon the complainant took this appeal, assigning the said decree as error,</p>

<p>Nos. 26 and 27 July Term 1886, Supt. Ct.</p> <p>These cases were appeals from the court below by Alexander Gray, Jr., who was administrator c. t. a. of the estate of Alexander Gray, Sr., deceased.</p> <p>In the auditing of the account of said administrator, whose letters were ancillary to letters testamentary upon the estate of the same decedent granted in New Jersey, the Orphans’ Court of Luzerne county surcharged the accountant with a certain fund, to wit, $11,624.89. This fund having been thus surcharged, was awarded to said Joseph Brown upon a claim against the estate adjudicated in his favor, against a claim made by the accountant in satisfaction of a debt due to himself.</p> <p>The “ Statement of the Evidence ” taken on the audit, which is referred to in the opinion of this court, showed the following facts:—</p> <p>That Alexander Gray, Sr., died testate on the 6th of April, 1873, leaving him surviving Jane Gray, widow, and children as follows : Jane Gray, John Gray, Maria, wife of S. B. Green; Alexander Gray, Jr.; Margaret, wife of E. W. Carpenter; William Gray, Isabella Gray, James Gray and Benjamin Gray, all residents of the state of New Jersey, and Ann, wife of Joseph Brown, and Elizabeth, wife of D. A. Fell, residing at Wilkes-Barre, Pennsylvania.</p> <p>That the will was probated in April, 1873, and letters testamentary taken by John Gray and Alexander Gray, Jr., as executors in New Jersey. That in April, 1874, letters of administration were taken in Luzerne county, Pennsylvania. That the deceased at the time of his death was possessed of the following property, inter alia, in Pennsylvania, viz.: The Hutchison mortgage, about $12,000, on property in Luzerne county; Silverbrook colliery; note of Joseph Brown, of Wilkes-Barre, for $10,000 and interest, and $50,000 deposited in the banking house of Brown & Gray, Wilkes-Barre.</p> <p>The executors filed inventories of the properties of the estate in the Orphans’ Court of Middlesex county, New Jersey, in which were included the above named assets of the estate, and these inventories and the appraisements thereof were duly confirmed by the said Orphans’ Court. No inventory or appraisement of these items was ever had in Pennsylvania.</p> <p>In 1873 Joseph Brown paid Alexander Gray, Jr., as executor, the said ten thousand dollar note and the interest thereon, amounting to the sum of $11,624.89, in payments at different times in the following manner: The amount was placed by Joseph Brown on his banking books to the credit of Alexander Gray, Jr., executor, and the note was delivered up and canceled. Alexander Gray, Jr., living at Princeton, New Jersey, drew on this account from time to time by check or draft, depositing the same in his bank at Princeton, New Jersey, to his credit as executor, and the bank collected the check or draft in the ordinary way; the last payment being made 9th November, 1873. These payments by Brown were made voluntarily.</p> <p>The $50,000 deposit was paid by Joseph Brown voluntarily to John Gray, executor, who accounted for the same in .the Orphans’ Court of Middlesex county, New Jersey, and the same was distributed by said court to the parties entitled thereto, including the heirs or legatees living at Wilkes-Barre.</p> <p>On the 25th of June, 1875, Alexander Gray, Jr., executor, filed his account in the Orphans’ Court of Middlesex county, New Jersey, for, inter alia, said $11,624.89.</p> <p>In 1882 some of the heirs in New Jersey, together with Mrs. Fell, of Wilkes-Barre, petitioned the Orphans’ Court of Luzerne county, setting forth the receipt, by the said Alexander Gray, of the said sum, and that he had not accounted therefor in the said Luzerne county, and praying for a citation to show cause why he should not be dismissed and also for an injunction. Citation was awarded, but the injunction was withheld. To this petition Alexander Gray filed his answer, in which he admitted the receipt of said money and claimed his accounting therefor in New Jersey, and setting forth that the Hutchison mortgage was in process of collection. The Hutchison mortgage was collected by process of law in Luzerne county and amounted to $13,806.99, which amount was paid into the First National Bank of Wilkes-Barre, subject to the order of the Orphans’ Court, to the credit of Alexander Gray, Jr., administrator, whereupon said Gray filed an account in the register’s office of Luzerne county.</p> <p>After the citation had been served upon him, and before filing this account, Gray, as executor, on the 15th of April, 1882, filed an amended account in the Orphans’ Court of Middlesex county, New Jersey, for the purpose of withdrawing this item of his 1875 accounting therein, and the effect of the allowance of which amended account would be the withdrawal of said former accounting.</p> <p>In 1877 Joseph Brown, former debtor of the estate, filed a bill in equity against' the estate of the decedent in Luzerne county, Pennsylvania, and obtained a final judgment thereon in 1885 for about $20,000.</p> <p>In March, 1882, Jane Gray, widow, Jane Gray, Isabella Gray and Benjamin Gray proceeded in the Orphans’ Court of Middlesex county, New Jersey, by petition praying that the letters testamentary granted to Alexander Gray, Jr., be revoked and that in the meanwhile he may be enjoined from acting as executor, and on May 7, 1883, the said court filed a decree of removal. A copy of which said proceedings was filed in the Orphans’ Court of Luzerne county, pending the audit, duly certified under the act of Congress.</p> <p>Alexander Gray appealed from the decrees of the Orphans’ Court to the Prerogative Court, which court by decree dated April 7, 1884, affirmed the decrees of the Orphans’ Court and ordered the said Alexander Gray to pay over said moneys to. Abram S. Meyrick, administrator, d. 1. n., in New Jersey.</p> <p>Alexander Gray appealed from these decrees to the Court of Errors and Appeals and these decrees were in 1885 affirmed by the said last named court, which decree was certified under the act of Congress and filed in the said Orphans’ Court of Luzerne county ; these several courts finding as matters of fact and law that this $11,624.89, “the Brown note item,” was received by Alexander Gray, Jr., executor, in the state of New Jersey, that it was due from Joseph Brown, of Pennsylvania, to the estate on a note, that the amounts were placed by Brown to Gray’s credit as • executor, who drew it in New Jersey by check or draft, and that it was a fund for distribution in the state of New Jersey and must be distributed there.</p> <p>From the decrees, first, surcharging him with said fund and, second, awarding the same to said Joseph Brown instead of to himself in satisfaction of the debt due him from the estate, the accountant took these appeals, assigning said decrees as error.</p>

<p>No. 369 January Term 1887, Sup. Ct.; Court below, 311 July Term 1879.</p> <p>In tbe court below tbe action was assumpsit by the Potts-ville Bank against J. Adam Cake, as indorser, to recover upon three negotiable notes made by Joseph W. Cake.</p> <p>On May 1, 1877, the Pottsville Bank, a corporation, held seven different notes, matured and duly protested, made by said J. W. Cake, amounting in the aggregate to $14,060, on two of which, notes said J. A. Cake was indorser; and on tbat date all tbe said notes were settled by tbe giving to tbe Potts-ville Bank of three notes amounting to $14,128.29 made by J. W. Cake and indorsed by J. A. Cake; and on May 2,1877, J. W. Cake executed and delivered to tbe said bank Ms bond in tbe sum of $28,246.58, conditioned for the payment of $14,128.29, in three years, with interest, and a mortgage securing said bond, in like amount, upon twenty-five lots in Sunbury, where the maker and indorser of said notes resided. There was also indorsed upon eaclr note, “ Bond and Mortgage as collateral security to Pottsville Bank for $14,128.29, dated May 2, 1877.” The suit was upon two of the notes dated May 1, 1877, and a third note given November 6, 1877, in renewal of the third of May 1, 1877. The pleas were non assumpsit and payment with leave to give special matter in evidence.</p> <p>On the trial before C. L. Pershing, P. J., the plaintiff :put in evidence the notes with the indorsements and rested.</p> <p>The defendant being called and sworn as a witness in his own behalf, this offer was made:</p> <p>Defendant’s counsel propose to prove by the witness that at the time the notes In suit were given and prior thereto, the Pottsville Bank, the plaintiff, was the holder of negotiable paper to the amount of $5,000 and upwards, upon which J. W.. Cake, the maker of these notes, was liable; that J. A. Cake, the defendant in this suit, was at that time liable upon a portion of such paper upon which there was due not exceeding $3,500; that on or about the first day of May, the time two of the notes in suit were given, and a third note, of which the third note in suit is a renewal, was given, Henry Saylor, then president of the bank, came to Sunbury and asked for a settlement of the overdue paper of J. W. Cake; that at that time a settlement was made of all such paper including the paper upon which the witness and defendant in this suit was liable, upon the following terms: That three notes were to be given by the said J. W. Cake, upon which J. A. Cake was to be indorser, and for which a bond secured by mortgage upon real estate for the full amount of the indebtedness was to be given by J. W. Cake; that J. A. Cake, the defendant, was not to be held liable upon said indorsements, but that they were to be given merely to satisfy the rule of the bank requiring an indorser upon negotiable paper, but in consideration of the giving of the mortgage as security he was not to be held liable.</p> <p>Objected to:</p> <p>(1) The plaintiff does not object to any testimony on the part of the witness upon the stand going to show or tending to prove that usury was paid upon the notes in suit by the maker, but the plaintiff does object to any testimony of conversations between the defendant in this case and Henry Saylor, who was the president of the plaintiff corporation bank, as to the effect by the defendant’s indorsements of the negotiable paper in suit; that the declaration of the president or other officers of a bank to an indorser, that his indorsement shall be merely nominal, or that he shall not be held liable upon his indorsement, are not binding upon the bank, unless it be first shown that the president of the corporation was authorized by the board of directors to make such a contract; that the discounting of commercial paper is a function vested in the board of directors of the bank, and cannot be delegated to any one single officer of the bank, and that the offer is otherwise incompetent and irrelevant except as to the question of usury.</p> <p>(2) That J. A. Cake, in this case, during the lifetime of Henry Saylor, the president of this bank, made an affidavit .[of defence] in which he admitted that there was about $8,000 due the plaintiff; that since the filing of that affidavit, Henry Saylor, the president of this corporation and its agent, the party with whom the contract was made, has died, and that the witness is not a competent witness within the Act of 1869, and that is another reason why this testimony is incompetent.</p> <p>(3) Because this is a suit by the plaintiff against the defendant as indorser on a promissory note, but defendant’s contract being in writing cannot be varied by parol testimony except upon the ground of fraud, accident or mistake.</p> <p>The court, referring to Taylor Corp. § 236; Booth v. Farmers’ Bank, 50 N. Y. 396, overruled the offer, sustained the objections and sealed a bill for the defendant.1</p> <p>The defendant then made a second offer :</p> <p>To renew the offer and to prove in addition to it that J. A. Cake, the defendant, would not have indorsed the notes, had it not been for the express stipulation that he should not be held liable thereon, and that he so stated to Mr. Saylor, the president of the bank at the time they were indorsed, and that the said Henry Saylor then agreed for the bank that he should not be held liable, and thereupon he indorsed the notes in the suit.</p> <p>Plaintiff’s counsel makes same objection as to the previous offer.</p> <p>This offer was also overruled, objection sustained and bill sealed for the defendant.8</p> <p>The defendant then offered:</p> <p>The bond and mortgage dated May 2, 1877, from J. W. Cake to the Pottsville Bank, both of the same date and in the sum of $28,246.58 conditioned for the payment of $14,128.29 in three years, with interest thereon payable annually, the mortgage being upon certain lots in Sunbury, and recorded May 2, 1877, in Northumberland county: To be followed by proof that the bank accepted the mortgage and have used it and pledged it as collateral for loans obtained by the bank; (1) as a part of the res gesta, the bond being the bond and mortgage referred to and the notes themselves being indorsed on the notes, bond and mortgage as collateral security to the Pottsville Bank for $14,128.29; (2), for the further purpose of showing that the bank accepted and ratified the agreement as made by J. W. Cake and Henry Saylor, as president, in relation to the settlement of the indebtedness of J. W. Cake. The bond and mortgage being produced by the plaintiff on the trial.</p> <p>Objected to:</p> <p>(1) Because it is not disputed that this bond and mortgage were given by J. W. Cake as collateral security for the notes in the suit. The notes themselves show that fact. (2) Because the bond and mortgage do not show and do not tend to show that the bank accepted the bond and mortgage in full satisfaction and payment of their indebtedness. (8) Mr. Cake, the defendant, being an indorser on a note which on its face shows that a bond and mortgage were also held by the holder of the note or the bank as collateral security for the debt, becomes entitled to the collaterals the moment he pays this debt; that as indorser of this note, which is the only contract in evidence, it was Ms duty to pay this note at maturity and if he had paid this note at maturity he would have been entitled to the mortgage and bond which were collaterals given to secure the payment of it and might enforce the mortgage and collaterals for his own benefit. (4) That the testimony is irrelevant to the issue in this case and in so far as sought by this offer to impeach the legal effect of the defendant’s indorsement it is irrelevant and incompetent.</p> <p>This offer was overruled, the objections sustained and bill sealed for the defendant.3</p> <p>The defendant then proceeded to testify as to certain payments made upon the notes, submitting a calculation, and was followed by rebutting evidence on the part of the plaintiff, when the latter agreed that if the jury believed the testimony they should 'find a verdict for the plaintiff for $18,009.39 ,- whereupon the' court charged accordingly.</p> <p>The jury having found for the plaintiff as directed, and judgment being entered, the defendant took this writ, assigning as errors the overruling of the offers of evidence, 3</p>

No. 36 July Term 1887, Sup. Ct.' This was an appeal by Frank C. Reese, Flower Stetler, Hannah Reese, Mary Ann Reese, Edward Reese and John Reese, children and heirs of John Reese, deceased, and Flower Pritchard, formerly Reese, widow and administratrix of said deceased, from the decree of the Orphans’ Court of Schuylkill county. John Reese died in August, 1880, leaving to survive him a widow and seven children. Another child was born four months after the death of Mr. Reese.

No. 305 January Term 1886, Sup. Ct.; court below, No. 199 April Term-1882, C. P. This was an action of .covenant in the court below, by Adeliza M. Merriman et al., executors of Hiram Merriman, deceased, against D. G. Bush, William F. Reynolds, Edmund Blanchard and John H. Orvis, who survive George M. Yocum.

<p>No. 22 January Term 1887, Sup. Ct.</p> <p>Jacob Leiby died on April 5, 1884, leaving to survive him as Ms heirs at law children and the children of deceased children. The will of the decedent duty proved contained the following provision:</p> <p>2. I bequeath and direct that all my personal and real property shall as soon as convenient be, sold at public vendue to the highest bidder, by my executors hereinafter named, and also collect all outstanding money, and divide the same among ■my children and legal heirs in such portions, so that if all the notes I hold against them or any of them my said children and heirs, and all moneys advance to them or any of them, my said children and heirs, that their shares or dividend of each amounts to the same, share and share alike.</p> <p>The testator left a family book which he had been'keeping' for many years as far back as 1855, and in which he had made entries under the names of Esther U. Leiby, Jacob U. Leiby, Ephraim Leiby, John Leiby, Hannah U. Leiby, Isaac U. Leiby, Joseph U. Leiby, Helena U. Leiby, Henry U. Leiby and Lucy Ann Leiby, who were his children. The book began with a heading in German on the first lation being as follows : page, the original, and a trans-</p> <p>Dis Buch, sei inhalt ist was ein ietes vor aussteier gekregt hatt, wo bis auf .elt geschaft hen.</p> <p>Johan was 3 iahr vor seiner elt abwesent, daher solche ein huntert thaler angerechelt werten vor die trei iahr.</p> <p>Vor das, woh in dem Buch aufgeschrieben ist, sollen keine intressengerechelt werten, ausgenommen was ueber 900 huntert ist, da sollen sie gerechnet werten.</p> <p>[Signed] Jacob Leiby.</p> <p>The contents of this book is what each one has received for outfit who have worked until' they attained their majority.</p> <p>John, who was away three years before his majority, therefore shall be charged one hundred dollars for the three years.</p> <p>For that which is charged in the book, no interest shall be reckoned, excepting what is more than 900 dollars, there they shall be reckoned.</p> <p>[Signed] Jacob Leiby.</p> <p>The following are illustrative the names of John Leiby and tions: extracts from the entries under Isaac U. Leiby, with transla-</p> <p> Johan Leiby sei aussteier. </p> <p>ein bet und betlat........ 18 00</p> <p>1 tebig.................. 2 50 acks und misthaken...... 2 40</p> <p>* * * * * .1i</p> <p>eataeismus.............. 18 testament................, 1 00 3 bushel Korn........... 1 65</p> <p>* !{s * if! * ift</p> <p>3 iahr vor seiner elt vort-</p> <p>geganen.............. 100 00</p> <p>ein amberel............. 1 00</p> <p>beiszang................ 37</p> <p>% if! * Sf! * *</p> <p>2 sei.................... 7 00</p> <p>1870 hat gekriegt die intresen von 11 huntert und 2 huntert von der haubt sum............ 255 00</p> <p>$1,668 58</p> <p>Johan u. Leiby sei sack. — (Continued.)</p> <p>wehen dem arnt seim Gotment hat johan gekriegt die sum von $1,600 huntert................... Ahrill 1, 1880, ist das aufgereeheltworten....... 2,982 79</p> <p> John Leiby, his Outfit. </p> <p>a Bed and Bedstead...... 18 00</p> <p>1 Coverlet............... 2 50</p> <p>Ax and manure forks---- 2 40</p> <p>* * * * * *</p> <p>Catechism............... 18</p> <p>Testament.............. 1 00</p> <p>3 Bushels Bye........... 1 65</p> <p>gone away 3 years before</p> <p>his majority........... 100 00</p> <p>an umbrella............. 1 00</p> <p>Pincers................. 37</p> <p>:fs ifs sj; Hs *</p> <p>2 Pigs.................. 7 00</p> <p>ij« ^5 t¡í }|i</p> <p>1870 has received the interest of 11 hundred and two hundred of the principal sum............. 255 00</p> <p>$1,668 58</p> <p>John U. Leiby, his things. — (Ooratinued.)</p> <p>By reason of Arndts judgment, John has received the sum of 1,600 hundred dollars............... April 1, 1880, this was reckoned up.......... 2,982 79</p> <p> Eisiclc, u. Leiby sei aussteier. </p> <p>catacismus.............. 18</p> <p>testament............... 1 00</p> <p>ein Kist................. 5 00</p> <p>noeh ein Kist............ 4 00</p> <p>ein Wik................. 2 50</p> <p>sens und frucht reff...... 6 00</p> <p>ein bet und betlat........ 20 00</p> <p>2 tebig.................. 5 00</p> <p>Koch Kesel............. 80</p> <p>* H? sfs # # sfc</p> <p>Eisik sei sack vor aussteier. — (Continued.)</p> <p> Isaac U. Leiby, Ms outfit. </p> <p>Catechism............... 18</p> <p>Testament.............. 1 00</p> <p>a Chest................. 5 00</p> <p>another Chest........... 4 00</p> <p>a Cradle................ 2 50</p> <p>Scythe and grain scythe.. 6 00</p> <p>a Bed and Bedstead...... 20 00</p> <p>2 Coverlets.............. 5 00.</p> <p>Boiler.................. 80</p> <p>if: if: jf: sf: ;{s</p> <p>Isaac, his things for outfit. — (Continued.')</p> <p>in gelt an Eisik bezalt- auf dem grosen buch toher gebracht.............. 136 17</p> <p>ein bank................ 95</p> <p>ein sau................. 2 00</p> <p>1870 ein Dish vor Karten spilen............:..... 1 95</p> <p>bort und negel vor bort Dish.................. 1 05</p> <p>ein bank................ 96</p> <p>Abrill 1, 1880, ist das aufgereehelt worten....... 550 42</p> <p>in money paid to Isaac out of the large book brought forward....... 136 17</p> <p>a bench................. 95</p> <p>a pig................... 2 00</p> <p>a table to play cards...... 1 95</p> <p>Boards and nails for Board Table................. 1 05</p> <p>a bench................. 96</p> <p>April 1st, 1880 This reckoned.................. 550 42</p> <p>Sometime in 1879, and before the execution of his will, the testator placed the book in the hands of David G. Mengel, his grandson-in-law, to reckon up each one’s amount. These sums subsequently the testator entered in said book in his own handwriting, and in the examples above they are shown by the entries of date April 1, 1880.</p> <p>The testator, at his death, also held notes made by certain ones of his children, which notes were not under seal, and, as evidences of indebtedness, would have been barred by the statute of limitations.</p> <p>Jacob U. Leiby, Isaac U. Leiby and David G. Mengel, the executors of said will, on April 24,1885, settled their account, to which exceptions were filed by the appellant and others. The account and exceptions coming on for adjudication, a contention arose whether the book before mentioned was a book containing a record of advancements, or a book of accounts of indebtedness charged against testator’s children, and as such barred by the statute of limitations.</p> <p>On the hearing, evidence was introduced in proof of the family book and of the manner in which it was kept; that about four months before his death he told a witness “ he would 'leave a writing back when he was not here any more, so that all the heirs could see what each one had got, and then it would not give any dispute; ” that to another witness he said “ that he wanted to keep his children alike so that there would be no difference between them, not even a cent.”</p> <p>The court, Hiram H. Schwartz, P. J., upon the contention referred to, held:</p> <p>It is contended that the amount charged against the children in a certain book must be deducted from their respective shares by and under the will.......</p> <p>The accounts against the several children begin usually with the item of eighteen cents for a catechism or items of house furniture or mechanical tools. It may thus be inferred that these charges were made against these children either in their youth, when they were struggling for an education, or at their first approach to manhood, when they entered upon real life and required furniture and tools in their pursuit of it.</p> <p>There is nothing contained in the book or expressed in his declarations that these charges should be advancements; and were this estate an intestate’s estate, they would be debts and as such not proven under the plea of the statute of limitations. There is not a single fact or circumstance in the case that even tends to show that the parent intended them as advancements at the time the property or money was received or alleged to have been received by the children. Such intentions must exist at the time the property or money is advanced.</p> <p>There is no proof that the charges were made when the property or money was received or alleged to have been received by the children. Declarations made by the parent at the time or subsequent to the time when the charge is made in the absence of the children and not communicated to them are not sufficient: Millers Appeal, 40 Penn. St. 57.</p> <p>In Haverstock v. Sarbach, 1 W. & S. 390, it is said, “Loose declarations of- a parent, that he intended an existing debt should be an advancement not substantiated by writing, not made to the children, nor assented to by them, nor accompanied by an act, are not sufficient to destroy a debt secured by a legal instrument in full force, and change rt into a gift, by way of advancement, whether offered by the Son to defeat the recovery of the debt or by the representatives of the father against the son to defeat his claim for a distributive share.” In Yundt’s Appeal, 13 Penn. St. 575, it is held that “declarations of a parent made after debts have been contracted, of an intention to treat them as advancements are not admissible to produce that effect where the declarations are not communicated to the child nor accompanied by an act to obliterate the obligations as debts.” In Merkel’s Appeal, 89 Penn. St. 340, this doctrine is re-affirmed and the cases maintaining it, approved. There is no allegation that the declarations of the decedent of his intentions to charge what the children had received as advancements (if any such declarations were made) were communicated to any of the children or that any of them has assented to such a charge being made. The book, call it by any name you please, does not substaniate such an intention. The testator’s conduct and acts create a contrary presumption.</p> <p>At about the time he desires to make a will, he takes his papers and hands them to Mr. Men gel, with the request to make a calculation: what calculation of what matter, and by what process has not transpired. The calculation was certainly progressive; and whether the calculator adopted the rule of arithmetical or geometrical progression and whether progression was by increase or decrease, he certainly employed no insignificant number as common difference, quotient or multiplier. But be that as it may, as a result and in pursuance of this calculation the decedent made the following entries in his book, viz.: [Entries made April 1, 1880, and subsequently, reviewed.]</p> <p>How these results were obtained can only be imagined. We presume interest forms in most instances a great part of the items “ reckoned ” as appears by the following statement of the amounts actually contained in the book and charged against the children respectively and the amounts “reckoned.”...... Certainly no one will contend that if there were no will that the charges in the book, the declarations of the decedent or his conduct and acts relative thereto or all of them together, would .make or change these charges in the book or the notes he held against Ephraim, Helena, and Lucy Ann at the time of his death into advancements.</p> <p>In the next place, does the will turn or change these book charges and notes or either of them into advancements? Was this the testator’s intention ? This intention must be gathered from the four corners of the will. The will directs that after the payment of the funeral expenses, his just debts and one hundred dollars to the one who took care of and provided for him, when he was himself unable to do so, “ all his estate should be divided among his children and legal heirs in such portions so that, if all the notes he held against them or any of them his said children or their heirs and all moneys advance to them and said children and heirs that their shares or dividend of each amount to the same.”</p> <p>The entries in the book have all the appearance of book accqunts, intended to show the indebtedness of the children. They have no mark identifying them as advancements. They are for interest on money received by the children. They are for rent. These accounts are changed from time to time. New balances struck and in every way treated as’ accounts showing an indebtedness by the children. The book was kept in such a way that it is now unintelligible to any one. The debit and credit sides seem to have been kept on the same side, and the whole added together; for instance, in the account of Isaac U. Leiby, there is an item, as follows, “1869 meat deducted from reckoning $6.08,” and added to the account, instead of subtracted. This is only one instance; there are many of a similár character.</p> <p>Some of the children deny the correctness of the accounts. Of course we have no power to pass upon that question. Our duty is to determine what the testator intended to give to each of his children.</p> <p>It must be conceded that the amount charged in the book against the children cannot be deducted from their respective shares, unless they are advancements made to them. For by the directions of the will, money advanced alone shall be deducted. Look at the accounts as we may, they involve the idea of obligations or future liability. The fact of charging amounts giving credit either in part or in whole of such amounts, and striking new balances from time to time involves the relation of debtor and creditor, and precludes all idea of advancement: Yundt’s Appeal, 13 Penn. St. 575.</p> <p>If the will directed that certain amounts should be deducted from the respective shares of the children, or that the amount charged in his book (describing it) should be so deducted, then the way would be clear. But the will does not refer to the book, but directs that his estate shall be divided among his children and heirs in such portions, that with the notes he held against them or any of them and their heirs, and all moneys advanced to them or any of them and their heirs, their shares shall be equal.</p> <p>The charges in the book are not advancements of money to the children and are not mentioned or referred to in the will, and therefore cannot be considered a • part of the decedent’s estate and deducted from their shares. The notes are mentioned in the will. They are thus referred to in it, viz.: “ The notes I hold against them or any of them and heirs, etc.” The intention of the testator no doubt was that all notes against the children by him held should form a part of his estate, and that they should be deducted from the shares of those against whom they were held.</p> <p>That a testator has power to convert an obligation into an advancement, or to direct that the amount of a note against a child should form a part of the assets for distribution and. be deducted from its share, there is no doubt: Watson v. Watson, 6 W. 254; Wright’s Appeal, 89 Penn. St. 67; Wright’s Appeal, 93 Id. 82; Hutchinson’s Appeal, 47 Id. 84; Porter’s Appeal, 94 Id. 332.</p> <p>And a testator has such power, whether the notes are valid or not.......</p> <p>Interest, where notes are thus charged by a testator in his will against his children, is not chargeable, unless there be a clear expression of such intention: Porter’s Appeal above cited, Green v. Howell, 6 W. & S. 203; Hutchinson’s Appeal, 47 Penn. St. 84. The two notes against Ephraim, the one for $524, and the other $180, are therefore deducted from his share; the note against Helena U. for $100 from her share, and the note against Lucy Ann Goldstraw for $714 from her share.</p> <p>To this finding of the court and the distribution based thereon, in so far as it refused to consider the book as evidencing advancements, Louisa Men gel and others filed exceptions •which were overruled and a decree made accordingly, whereupon the exceptants took this appeal.</p>

<p>No. 270 January Term 1886, Sup. Ct.</p> <p>The suit in the court below was an action by Walter G. Wilson against Charles K. Barns for a quarter’s rent of premises in Philadelphia. The landlord, plaintiff, filed a copy •of his lease with his claim. The tenant, defendant, filed an affidavit of defence in which he averred:</p> <p>The premises demised were a dwelling-house in the city, and the lot on which it stood.</p> <p>On the 14th April, 1885, during the quarter for which rent is demanded by the suit, and before the rent sued for accrued, the defendant was evicted from the premises, and did actually remove therefrom, and so continued evicted until the termination of the quarter. The manner of the eviction was as follows : The owner of the adjoining premises, intending to erect a house on that lot, caused the party or eastern wall of the first story of the main building and the said wall of the first and second stories of the back building of the house mentioned in the lease, to be condemned by the person or persons entitled to determine such questions under the laws of Pennsylvania, and the same were adjudged to be insufficient for the purpose of a party wall, and' the said adjoining owner was authorized to remove the same. Pursuant thereto, on or before the 27th day of April, the said adjoining owner did remove the said walls, and thereby left the rooms of the house described in the lease open and exposed to be entered into at pleasure, and so •open to wind and rain as to render it impossible to use the house as a dwelling; and displaced and cut the pipes for water and gas and the flues for heating the house, so that the same could not be used as a dwelling-house. Thereupon the defendant removed from the dwelling after notifying the plaintiff and he failed to protect him in the enjoyment of the premises, paying rent up to the time when the house became uninhabitable.</p> <p>On motion, the court after hearing entered judgment for the plaintiff for want of a sufficient affidavit of defence, whereupon the defendant took this writ.</p>

No. 42 January Term 1887, Supt. Ct.; Court below, No. 59 December Term 1882, C. P. No. 8. In the court below this was an action of ejectment by C. A. Max W.iehle and Bernard Feldman as executors of Elizabeth Psotta, deceased, against Isaiah S. Barbour, to recover two certain lots of ground in the 23d ward of the city of Philadelphia. A disclaimer was filed as to one of said lots.

<p>No. 239 January Term 1887, Sup. Ct.</p> <p>This was an appeal by W. M. Sinclair from a decree of the Orphans’ Court of Luzerne county, confirming the report of the auditing judge distributing the balance found to be in the hands of the executors of William E. Hance, deceased.</p> <p>Prior to November, 1877, William E. Hance was a merchant doing business in the borough of Plymouth, Luzerne county, Penna. About that time he failed, owing (among others) W. M. Sinclair the sum of $650.01, for which suit was brought and judgment obtained January 14, 1878, for $659.55, with $8.62 costs. In the year 1883 Hance compromised with his creditors for about 25 per cent, of their respective claims, which was received in full satisfaction of debts, interest and costs. Sinclair entered satisfaction of his judgment June 30, 1883, having received $179.54.</p> <p>Mr. Hance never married; and on May 4, 1885, he died, leaving a will in which he provided, inter alia, as follows:</p> <p>It is my will, and I do order that all my just debts and funeral expenses be duly paid and satisfied as soon as conveniently can be after my decease.....It is my will and I do order that the balance due my old creditors whose claims were compromised be paid in full. It is my will that the residue of my estate go to my brother, Edwin A. Hance.</p> <p>On settlement of the accounts of his executors the balance of the estate for distribution amounted to $22,134.70.</p> <p>The claim of W. M. Sinclair was presented to the auditing judge for allowance, payment in full of the judgment, with interest and costs, less the sum of $179.54 paid by Hance at the compromise, being demanded. The executors contended that the claimant was entitled to receive only 75 per cent, of the original debt, to wit: $487.50 without interest, having been paid 25 per cent, under the compromise settlement. The court in making distribution to Sinclair’s judgment added the debt and costs as they appear on the record, to wit: $659.55 and $8.62 costs, making a total of $668.17, from which was deducted the sum of $179.54, the amount paid by way of compromise, leaving a balance of $488.63, upon which interest was allowed from June 30, 1883, the date of compromise, making amount with interest of $566.81 payable out of the fund.</p> <p>To the distribution reported exceptions were filed on behalf of Mr. Sinclair and others which exceptions were dismissed by the court after an opinion:—</p> <p>We do not see any good reason for disturbing our finding of law as to any matter of interest. It is not all of the testator’s creditors who are to be paid, but those “whose claims were compromised; ” and it was not all of the debt which was to be paid, but the “balance,” and this balance was to be paid “in full.” The balance it seems to us can only refer to the portion ascertained and remaining unpaid when the compromise was effected;</p> <p>The settlement-compromise ascertained the amount, as well as the persons who are to have the legacy. We have a list of the persons and the balance due'them in the handwriting of the testator and our finding corresponds with the list and fills the whole letter and spirit of the will.</p> <p>The bequest is not to be ascertained as the renewal and confession of any legal obligation. It is a gift and the old account is only to be regarded as a means of ascertaining the amount of the same.</p> <p>In Tait v. Lord Northwick, 4 Vesey 816; 3 Jarman Wills, 446, Am. ed., 1881; it was held that a direction to pay such debts as the testator should at the time of his death owe by mortgage, bond or other specialty or by simple contract however, and all interest thereof, should be limited as respects interest, to debts which were bearing interest.</p> <p>In Graham v. Keys, 29 Penn. St. 189, the amount recovered was governed by the admissions of the debtor, and interest was refused between the time of the admission and the time of suit brought because that was the time when the creditor accepted the proposition. These cases are cited to show that a gift or the acknowledgment of a debt barred by the statute of limitations, does not carry interest regardless of the intent of the donor as expressly declared. Debts bear interest by way of damages for non-payment of them when due, while in this case there is no obligation to be inferred by.law.</p> <p>It was answered on the argument that the testator must have recognized a moral duty to pay all his debts with inter- ■ est. This cannot be so for he has only selected a portion, a certain class of them. For the same reason he may have been prompted to limit the gift to them of the balance unpaid by him in his lifetime. [No mention was made of interest, none was demanded, none was compromised, none is found on the list of creditors presented, none is mentioned in the will, and we have given what we consider full force to the words “ in full.”] 1.....</p> <p>All of the exceptions are therefore dismissed and the report of audit is confirmed absolutely.—</p> <p>A decree of distribution was made in accordance with the adjudication; whereupon W. M. Sinclair took this appeal, assigning as error the ruling of the court, as contained in that portion of the opinion included in [ ]*, and the finding that the legacy to the appellant was only 75 per cent, of his book account with interest thereon from the date of compromise to the date of audit.</p>

<p>No. 10 January Term 1886, Sup. Ct.; Court below, No. 289 May Term 1884, Q. S.</p> <p>In tbe court below this case was an indictment of John Hanney, charging him with fraudulently conspiring with William Kelly and Thomas Keating to cheat and defraud the township of Norwegian, in the county of Schuylkill. A true bill was found May 19, 1884, and the case came on for trial November 19, 1884.</p> <p>The defendant in 1883-84 was the treasurer of Norwegian township, Schuylkill county, and during the same period Thomas Keating was a supervisor and William Kelly his clerk. The indictment was under the 128th section of the act of March 31, 1860, P. L. 412, and contained two counts, one general, and. the other setting out as overt acts the issuance of fraudulent orders upon the township treasurer for labor and services in the repairing and construction of roads, highways and bridges, to and in the names of persons to whom the township was not indebted for such labor or services, and the fraudulent indorsement of the names of the payees in said orders, and the appropriation of the money purporting to be due thereon, by the defendant to his own use. The testimony of defendant included a large number of witnesses as to his good reputation.</p> <p>The court, D. B. Green, J., delivered a charge to the jury, the whole of which was before this court in the paper-book of the defendant in error, and part of which was as follows:</p> <p>[It is also charged that Mr. Hanney engaged in a conspiracy to defraud the township by the purchase of a horse from Crowe, and that this horse was to be used on the public roads in violation of law. The law upon that subject is embraced in the act of 1859, section 9, P. L. 53, “ That from and after the passage of this act, any supervisor of highways within the county of Schuylkill, who shall furnish teams, wagons, carts, materials or labor, except his own superintendence as supervisor, in the township in which he is a supervisor, in the use, sale or profit of which he is directly or indirectly interested, and shall receive money from the said townships therefor, shall be held guilty of a misdemeanor in office, and, upon conviction thereof, shall be punished as provided for in the 8th section of this act.”</p> <p>That makes it a criminal offence for the supervisor to use his horse and cart on the public roads and receive money for their use. It is a criminal offence on the part of the supervisor. Would it be any offence on the part of the treasurer, or on the part of another party, to assist, knowingly, to conspire for the purpose of perpetrating sucha fraud as that upon the township ? It is undoubtedly true that Hanney’s paying for or going .security for the payment of the horse, would not justify a conviction. If, however, you find under the evidence in this case that the horse was purchased by Hanney, or be: tween Hanney and Keating; that he was to be used upon the public roads; that he was put in the name of William Kelly</p> <p>for the purpose of evading the provisions of the law; that these orders were drawn in the name of William Kelly, but the money paid to Thomas Keating, because, as John Hanney says, Thomas Keating was entitled to it, because it was his horse and wagon; if you believe that John Hanney was cognizant of all these things and was assisting in perpetrating this fraud upon the township, you have here testimony which would warrant a conviction for conspiracy to defraud the township, because such orders were illegal and the party was not entitled to receive any money, under the provisions of the law.] 1</p> <p>[You have heard a great many witnesses as to the good ■character of John Hanney. It is not necessary that we should ■comment upon the character of these witnesses, because they ■are amongst the first names in the community. They uniformly testify to the fact that John Hanney has borne all ■along a good character for honesty. It is for you to determine what effect good character shall have in determining the guilt ■or innocence of this defendant under this indictment. If you ■believe that the testimony in this case clearly points out the guilt of John Hanney, then hiá previous good character should ■have no weight in determining the question of his guilt ox-innocence. If, however, you think that the commonwealth have made out but a weak case; that whilst, possibly, it xnight be sufficiexit for conviction, still the case is a weak one, there the testimony as to his good character should weigh with you, with strength sufficient to raise a reasonable doubt in his favor, which reasonable doxxbt would inure to his acquittal. Testimony as to good character is always to be taken irxto consideration where the testimony in the case is seriously conflicting, and where the commonwealth have not made out a clear case. If, however, the commonwealth make out a clear case beyond any question as to guilt, then we say to you that testimony as to good character ought not to avail for the purpose of screeixixxg a party from punishment.] 8 It should only be taken into consideration in determining the degree and amount of punishment.</p> <p>[The jury, of course, always gives the defeixdant the benefit of a reasonable doubt, even where there is no testimony as to good character. Where you have a reasonable doubt as to a party’s guilt, that doubt growing out of the facts in evidence in the case — that is, where you feel satisfied that the testimony in the case is not of such a convincing character as to satisfy you of the guilt of the party, there would be a reasonable doubt, and such doubt would inure to the benefit of the defendant.] 3</p> <p>The jury found a verdict of guilty, and on June 1, 1885,. the court sentenced the defendant to pay a fine of $100 and costs, and to undergo an imprisonment in the county prison for a period of nine months. Thereupon the defendant took this writ, assigning for error :</p> <p>1. That part of the charge embraced in [ ]1</p> <p>2. The parts of the charge embraced in [ ] 3 3</p>

<p>No. 151 January Term 1886, Sup. Ct.; Court below, No. 19 September Term, 1883, C. P.</p> <p>This was an action of ejectment in the court below by Jacob M. AUebach against Reiff H. Godshalk, to recover a parcel of ground at Rahn’s Heights, Perkiomen township, Montgomery county.</p> <p>On the trial the plaintiff proved title in himself and rested.</p> <p>The defendant filed a disclaimer of all land claimed in the writ except lot No. 42 in the plan of Rahn’s Heights, and proved an article of agreement, under seal dated October 25, 1875, between Jacob M. Allebaeh of the one part and about sixty-six other persons named (embracing Reiff H. Godshalk and Martin Kulp), of the other part, for the consideration of $13,350, of which the sum of $4,450 was payable in cash on the execution of the articles, the said party of the first part therein covenanting to convey “ by such deeds of conveyance as he or they or his or their counsel learned in the law shall advise,” unto the parties of the second part a tract of land at Rahn Station, containing about thirty-six acres more or less; following by evidence tending to show that after a division .into lots was made deeds were executed, including one to defendant for lot 42, drawn under direction of a committee and left with the plaintiff, but not delivered to the defendant; that defendant paid $50 and gave his note for $100 at the time the contract was signed; that subsequently, under permission at the time given by the plaintiff, the defendant had fenced the lot in, built a shop on it and had dug a well, but the fence and shop were afterwards removed; and that a balance of $68 remained unpaid. On cross-examination of defendant it appeared that defendant had drawn lot 38 and had exchanged with Martin Kulp, who had bought lot 42; that when the contract of sale was made it was part of the arrangement that the parcel was to be divided into lots and a distribution to be made by a lottery, in which distribution lot 38 fell to defendant. The testimony of defendant as to his possession and improvements upon lot 42 was as follows: “ At the time I gave Mm this check I gave Mm a note of $100 ; that was the full consideration of this lot; after I had done that and at the time I fenced it in he gave me privilege to; he said, I should fence that lot in; I wanted to fence it in along with my other lot along side of it; he told me I should fence it in; I asked him about it before I did any fencing; I told him I was going to move the fence away from the other lot to inclose that right along there with it, and asked him for permission; he gave me permission to do so; he said I could have the deed any time whenever I wanted it; he told me it was at Schwenksville; when I fenced it in was during the summer of 1876 and the note was maturing at that time.”</p> <p>On rebuttal it was shown on the part of the plaintiff that when the agreement was signed it was arranged (and so carried out) that the plaintiff should then retire, and in his absence the tract was to be laid off into lots and the lots distributed by a lottery under the management of a committee appointed by the purchasers in the agreement; that the defendant drew lot 38; that after the drawing was held, the plan was handed to plaintiff; that plaintiff had not consented to the exchange by defendant with Martin Kulp, who had never paid anything for his lot 42; that the deeds when prepared were deposited in bank for safe keeping, and plaintiff did not know that the deed to defendant purported to convey lot 42, and that he had not given permission to the defendant to occupy or improve that lot.</p> <p>The court, B. M. Boyer, P. J., charged:</p> <p>Gentlemen of the Jury: — October 25, 1875, the plaintiff entered into a contract in writing with a number of individuals to sell them certain premises, containing about thirty-six acres of land, for the sum of $13,350; $4,450 of which was paid as down money, and the remaining $8,900 was to be paid on the first of April, 1876. The plaintiff covenanted to convey the premises by such deeds of conveyance as counsel learned in the law should advise to the purchasers. This, on its face was a lawful contract. But it is said by the plaintiff to have been an illegal and void contract, because of the method resorted to by the purchasers to make partition of the premises amongst each other. But it is an illegal contract only in case the plaintiff was himself a party to the illegal understanding and agreement to divide the land by lottery. If this were not a part of the original understanding with the plaintiff, he is free from complicity in the unlawful transaction which followed, and to him it could not matter how the purchasers divided their property. All he was bound to regard was the payment of the purchase money, and the execution of the conveyances as required by the purchasers, and they could have enforced against him, and he against them, the terms of the original contract. But if the plaintiff originated the scheme of the lottery, or was cognizant of it and a promoter of it at the date of the written contract, then the latter was a mere device to evade the law, which could not have been enforced on either side. [B ut I regard the contract in question between the plaintiff and defendant in this suit as standing independent of the original contract of October 25, 1875. Lot No. 42 was not drawn by the defendant in the lottery. He drew another number; and whether the transaction which resulted in the drawing, were legal or illegal, the defendant could not, under it, have made any demand for the conveyance to him of the land in question. Neither could the plaintiff have compelled him to accept or pay for it. If the defendant has any claim to the possession of lot No. 42 it arises upon a new and' independent contract, outside of the original transaction.]8 He derived no title or interest from Martin Kulp, who drew the lot and is said to have surrendered his claim to it to the defendant. What right or title he has rests solely upon what took place between the plaintiff and the defendant concerning it; and here is the vital and most material point in this controversy. Did a parol contract take place between the plaintiff and defendant concerning it? Did the plaintiff agree that the defendant should have the lot, Kulp being out of the way? Was the price agreed upon? Was possession given in pursuance of this contract, to the defendant ? Did the defendant make valuable improvements upon the premises with the knowledge and consent of the plaintiff ? Was any part of the purchase money paid, if so how much ? These are all material points for the consideration of the jury. There has been much discussion about the lottery, which was, in the light the court views this matter, unimportant. For it is not through or by force of the lottery that the defendant can claim the rightful possession of the premises; for the lottery assigned the premises to another person; and it is only by force of the new agreement made with the plaintiff that the defendant can maintain his right of possession to the lot in question. Now the claim set up by the defendant is founded upon a verbiil contract, called in law language a contract by parol; and there is a statute against the transfer of title to lands otherwise than by writing. It is a wise statute, intended to prevent the frauds likely to be practiced, a,nd the perjuries likely to be committed to the confusion of titles, if sales of land could be effected by verbal transfers. But, to prevent injustice, certain exceptions have been sanctioned by courts, and estates in land may sometimes be acquired even by parol; as for example, where the possession has been given under a contract; and the purchase money, or a considerable part of it, has been paid ; or valuable improvements made upon the premises with the knowledge and consent of the seller, so that it would be unjust and inequitable to rescind the contract and give back the land to the seller. Whether or not such a state of facts exists in this case, is the main matter for your consideration. [If there were a verbal contract between the plaintiff and defendant that he should have the lot in question upon paying a certain fixed mice, Kulp being out of the way, and if in pursuance of this arrangement the defendant were allowed by the plaintiff to take possession of the premises, and with the knowledge and consent of the plaintiff, to make valuable improvements thereupon, which could not adequately be compensated for in damages ; so that it would be inequitable under those circumstances to allow the seller to take back the property ; if you so find it, it is a parol contract which may be sustained, notwithstanding the statute upon the subject; and if you find these facts to exist in this case, under these instructions, the defendant would be entitled to retain possession of the lot.] 9 Sometimes, in order to do exact justice between the parties, juries may render a conditional verdict, and after I have answered the points which have been presented to me on both sides to charge upon, I will further call your attention to this subject.</p> <p>The plaintiff requests me to charge you as follows:</p> <p>1. That the plaintiff having established title to himself out of the commonwealth, is entitled to the verdict in his favor for the premises described in the writ.</p> <p>Answer : This will depend upon the facts to be found by the jury.1</p> <p>2. That under the evidence of this case the defendant has failed to show such a parol contract as to take the case out of the operation of the statute of frauds.</p> <p>Answer : We decline to so instruct the jury. It will depend upon how the jury find the facts submitted to them.9</p> <p>3. That under all the evidence in this case the verdict must be for the plaintiff.</p> <p>Answer: We decline to affirm this point.3</p> <p>Defendant has also presented to me certain points upon which to charge the jury.</p> <p>1. If the jury find that the defendant took exclusive possession of lot 42, continued to hold such possession to this date, made valuable improvements with the assent of the plaintiff, tendered the balance of the purchase money, and that the metes and bounds of said lot were fully described by deed, •drawn to the defendant and duly acknowledged, but not delivered, such facts are sufficient to take the case out of the statute of frauds, and the verdict should be for the defendant.</p> <p>Answer: This is true if. the jury find these facts, and that possession of the premises was delivered and improvements made in pursuance of the parol contract of sale existing between the parties.4</p> <p>2. If the defendant went into possession of lot 42 in pursuance of an illegal lottery, continued in exclusive possession of the same to this date, paid part of the purchase money, made valuable improvements with the knowledge and assent of the plaintiff, and this was all done in pursuance of such illegal lottery set up by the plaintiff and others, then the verdict must be for the defendant</p> <p>Answer: This would be true if the jury were to’find the facts as here stated; for in that case the plaintiff could not take advantage of his own wrong and ask the aid of - the court to recover back that which in pursuance of an illegal and forbidden contract he had delivered.5</p> <p>3. If the jury find from the evidence that the distribution was by owners in common of a large tract of land, such distribution is not á lottery, even if the purparts are of unequal value.</p> <p>Answer: If from the beginning the land was purchased with a design to make partition by lot in parcels of unequal value, in the manner employed, as shown by the evidence, it was an illegal lottery ; otherwise not.6</p> <p>4. If the plaintiff were a party to an illegal lottery by which the defendant secured possession of lot 42, he cannot set up such lottery as a bar to the defendant’s title.</p> <p>Answer: This is true. 7</p> <p>Now, gentlemen, in case you should find the facts which I have stated to be essential in order to support a parol contract, you may, if you choose, render a conditional verdict. In that case you will consider, and balance the equities between these parties. [You would ascertain how much of the purchase money had been paid; and on this point there has been some controversy as to whether the $50 first paid should be counted as a payment upon tins lot. The court instruct you, if you find that there was a parol contract that the defendant should have lot 42 instead of the lot he drew,- and it was the understanding that the $50 should be considered as part of the purchase money, then, though it was originally paid without reference to any particular lot, it may be counted as a payment upon the lot in question, the plaintiff having consented, if you so find, to such an appropriation.] 10 And you will find from the facts what additional purchase money was paid by the defendant upon the lot. There, is some conflict of testimony upon this point, which you must reconcile and decide upon as you best can from the evidence. In case you find that there was a tender of the balance of purchase money by the defendant to the plaintiff at any time, and the amount tendered constituted the whole balance that was due, then, although you might calculate interest upon it from the time it became due up to that date, you would not calculate interest beyond the date of the tender. The court leave the facts entirely with the. jury; but in order that the jury, in a certain event, may not be embarrassed, the court have moulded a verdict, in case you should come to the conclusion that a conditional verdict in this case is required under the instructions which have been given to you, and the facts as you shall find them.....- You can mould the verdict as you please. You can attach to it what conditions you choose; and the court have only indicated what they regard as a proper form in case you should come to the conclusion that such a verdict is required to do equity between the parties.</p> <p>[You can find a verdict, if under the instructions you have received you consider yourself justified, absolutely in favor of the plaintiff, or absolutely in favor of the defendant.] 11 Plaintiff and defendant both except to the charge of the court and bills sealed.</p> <p>The verdict of the jury was for the defendant, and after the refusal of a motion for a new trial judgment was entered, whereupon the plaintiff toot this writ, assigning that the court below erred,</p> <p>In the answers to the plaintiff’s points 183</p> <p>In the answers to the defendant’s points 4367</p> <p>In those parts of the charge embraced in [ ] 8 9 10 11</p>

<p>No. 11 July Term 1886, Sup. Ct.; Court below, No. 247 November Term 1885.</p> <p>This was a feigned issue on tbe petition of tbe sheriff of Schuylkill county, wherein P. W. Sheafer was plaintiff and W. G. Maurer, S. H. Rothermel and C. D. Maurer were defendants.</p> <p>Upon a judgment of W. G. Maurer, S. H. Rothermel and C. D. Maurer against John A. Dutter for $1,200 a fi. fa. was issued on August 18, 1885, and on the same day the sheriff levied upon:</p> <p>All the right, title and interest of John A. Dutter of, in and to all that certain coal lease having 15 years to run from the first day of January, 1884, on land of the city of Philadelphia, trustee under the will of Stephen Girard, with the right and privilege to mine, dig and carry away coal in and from all the veins of coal lying south of interfering surveys in the names of George Flower and Conrad Mertz and east of the interfering survey in the name of Richard Stevens on the John Blackey and Thomas Paschall tracts of land, situate in West Mahanoy township, Schuylkill county.</p> <p>Also, all the right, title and interest of John A. Dutter of, in and to all that certain coal lease having fifteen years to run from the first day of January, 1884, on land of the estate of John Gilbert, deceased, and others, situate in the borough of Gilberton, Schuylkill county, and adjoining the above mentioned tracts of land, with the improvements, consisting .....known as the South Laurel Ridge Colliery. Also, all the right, title and interest of John A.. Dutter of, in and to all that certain coal lease, having years to run on land of the estate of John Gilbert, deceased, and others, situate in the borough of Gilberton, Schuylkill county, with the improvements, consisting.....known as the North Laurel Ridge Colliery, as the property of John A. Dutter.</p> <p>On September 7, 1885, the sheriff presented his petition in the usual form, setting out his levy in full and alleging that he had received notice from P. W. Sheafer that the premises, etc., levied upon belonged to him, obtained a rule upon the execution plaintiffs to show cause why an issue should not be formed to try the title to said premises. To this rule the execution plaintiffs filed an answer objecting that the leases and improvements, etc., were estates in the land, not subject to seizure as personal goods susceptible of transportation, but by reason of their fixed and permanent character, could under an execution be seized and held only as real estate and sold in the same manner as real estate; and such property was not within the spirit and meaning of the Interpleader Act. On October 17, 1885, the rule was made absolute and an issue framed as stated.</p> <p>On the trial there was evidence, inter alia, that before the issue was formed the plaintiff therein had transferred his interests in the properties in dispute tó S. H. Barrett and N. H. BeddaU.</p> <p>The defendants (the execution plaintiffs), submitted the following points:</p> <p>1. The evidence being undisputed that the property levied upon under the writ of the defendants were leasehold estates of mining rights and the improvements thereon, and said leases having nearly fifteen years to run, such property partaking of the character and permanency of realty is incapable of seizure so as to.affect the liability of the sheriff and hence is not within the act of assembly of 10th April, 1848, and its supplements, and this issue cannot be sustained and the verdict must be for the defendants.</p> <p>2. That Peter W. Sheafer, having parted with all his interest in the property levied upon on the 14th Sept. 1885, and this issue having been formed thereafter, the plaintiff has no status to maintain the issue and the verdict should be for the defendants.</p> <p>The court charged the jury:</p> <p>We overrule and negative the points of the defendant and direct a verdict in favor of the plaintiff. As to the second point we say further that the issue in this case is really as to the ownership of the property at the time of the levy. The undisputed evidence in this case is that it was in Mr. Sheafer, and therefore the testimony which has been given in evidence and as to the effect of which we reserved, as to the subsequent assignments of this property by Mr. Sheafer to Mr. Barrett, that is really not relevant to the trial of the issue in this case; or if it were, then we think that the plaintiff would have a right to amend by making Barrett and Beddall the use ■ plaintiffs in the case. And for these reasons we negative the points of the defendant and direct a verdict in favor of the plaintiff.</p> <p>Judgment was entered upon the verdict in favor of the plaintiff claimant, whereupon the defendants (the execution plaintiffs) took this writ, assigning for error the overruling of their' points and the charge of the court.</p>

No. 435 January Term 1887, Supt. Ct.; Court below, 294 July Term 1884, C. P. In the court below this was an action in case for negligence by M. C. Watson against the township of West Mahanoy, Schuylkill county, for damages for the loss of a pair of horses, a sleigh and harness. On January 16, 1884, two horses and a sleigh, owned by M. C. Watson, were being driven along a public highway in West Mahanoy township, Schuylkill county.

<p>No. 104 January Term 1887, Sup. Ct.; Court below', No. 16 May Term 1885, C. P.</p> <p>This was an appeal, with writ of certiorari thereon, by John C. Hilton, assignee of the Humboldt Safe Deposit and Trust Company, from the decree of the court below upon exceptions to the report of an auditor making distribution of the proceeds of a sheriff’s sale of the property of John H. Welsh.</p> <p>On February 28, 1829, Rufus S. Reed, the owner in fee of part of lot 2,039 in the then borough of Erie, executed a lease thereof to one Charles Lay for the term of nine hundred and ninety-nine years from November 1, 1830, at a yearly rent of $100 for the first eight years and of $65 thereafter, and all taxes, — “ and that when the present store-house is removed, that the said Charles Lay, his executors, administrators and assigns, or some of them, shall build or cause to have built a brick house in place thereof.”</p> <p>On March 8, 1877, John H. Welsh became the owner of said leasehold by assignment of that date from James S. Sterrett and wife, which assignment was recorded on March 10, 1877, in deed book 58, page 232. Welsh took actual possession and continued therein until May 1883; after that date the premises were occupied by tenants under said Welsh until the time of the sheriff’s sale, below.</p> <p>1. On May 19, 1883, said Welsh, to secure a debt of $1,500, executed a mortgage of said leasehold to Charles M. Reed, which with the lease following it was recorded on May 23, 1883, in mortgage book 3, page 182.</p> <p>2. On May 25,1883, said Welsh made an assignment of said leasehold to John S. Elliot, treasurer of the German Savings Institution of Erie, as collateral security for the payment of judgment No. 356 May Term, 1880, in favor of the German Savings Institution; said assignment was recorded on same day in contract book No. 2, page 536.</p> <p>3. On May 25, 1883, said Welsh executed a mortgage of the same leasehold to Gustave Jarecki in trust for The Humboldt Safe Deposit Bank of Erie, to secure three notes-amounting to $3,500 on which judgments were entered to Nos. 437, 438 and 439 November Term, 1884. The only reference to the lease in the mortgage was as follows: “ being the same land or leasehold conveyed to the said John H. Welsh by James S. Sterrett by deed dated March 8,1877, and recorded in deed book 58, page 232, by reference to which the origin of said leasehold and chain of title thereto will fully and at large appear.” This mortgage was recorded on May 26, 1883, in mortgage' book 2, page 661, but the lease was not recorded with the mortgage nor further reference to it than stated.</p> <p>4. On July 23, 1883, the said Welsh, to secure a debt of $2,000, executed a mortgage of the same leasehold to W. W. Johnson, trustee for three creditors named. This mortgage contained the lease copied into it in full, and was recorded July 26, 1883, in mortgage book No. 3, page 280.</p> <p>Said Welsh having failed to pay his indebtedness, the Humboldt Safe Deposit and Trust Company issued executions upon its judgments secured by mortgage to Gustave Jarecki, in trust, (3), and levies were made on the said leasehold. After said levy and before sale, John Elliot, treasurer of the German Savings Institution, claimed the said leasehold b-y virtue of the assignment above referred to, (2), and on March 2, 1885, upon the sheriff’s petition under the Interpleader Act, a feigned issue was awarded to determine the respective rights of the claimant and the execution plaintiffs.*</p> <p>Pending these interpleader proceedings judgment was obtained to No. 16 May Term, 1885, by Charles M. Reed upon his mortgage, (1), and on levari facias to No. 76 May Term, 1885, the leasehold of said Welsh was sold for $4,200, the money paid into court and Mr. O. L. Baker appointed auditor to make distribution.</p> <p>Before the auditor, John C. Hilton, assignee of the said Humboldt Safe Deposit and Trust Company, claimed the full amount of the debt and costs of the judgments (secured by the mortgage of May 25, 1883,) by virtue of his executions and levy before referred to, as being the first liens after the payment of the ground rent to the owner in fee; or, if the auditor should be of opinion that the mortgages were valid liens upon the leasehold, then that by virtue of the said mortgages he was entitled to the amount of money remaining after the payment of the mortgage debt of Charles M. Reed.</p> <p>The auditor in his first report, holding that the words “ or other premises,” in the eighth section of the act of April 29, 1855, P. L. 369, are synonymous with “ other lands and tenements,” and that the mortgage from said Welsh to Charles M. Reed came within the provisions of that act, awarded payment of the judgment thereon. He further held that the assignment of the leasehold by said Welsh to John Elliot, treasurer, etc., was made as collateral security, was therefore but a mortgage: Russell’s App., 15 Penn. St. 319; but being unrecorded in the mortgage book was an unrecorded mortgage and not a lien on the fund: Luch’s App., 44 Penn. St. 519. He further holding that as, in Inis opinion, under Sturtevant’s App., 34 Penn. St. 149; Ladley v. Creighton, 70 Idem 490, and the act of May 13, 1876, P. L, 160, the reference to the leasehold in the mortgage of said Welsh to Gustave Jarecki, in trust for the Humboldt Safe Deposit and Trust Company (3), was sufficiently full and distinct, awarded the balance of the fund to John C. Hilton, assignee of said company, on the said last mentioned mortgage.</p> <p>To this report John C. Hilton, assignee, excepted:</p> <p>That the auditor erred in not allowing the claim of except-ant in full with costs, the fund having been raised from the sale of personal property upon which this exceptant had a lien prior to all other liens except ground rent, by virtue of his executions issued sur judgments Nos. 437, 438 and 439 of November Term 1884, in the Court of Common Pleas of Erie county, and levied in due form of law, as appears by the record of said court put in evidence at the hearing before the auditor.1</p> <p>W. W. Johnson, trustee, excepted:</p> <p>That the auditor erred in not appropriating the sum of 12,249.23 to the mortgage of W. W. Johnson, trustee, said mortgage being the second lien on the property sold and next to the lien of mortgage to Charles M. Reed, instead of to the mortgage to Gustave Jarecki, in trust, said mortgage being no lien on the property sold.8</p> <p>The court, Vi. A. Galbbaith, P. J., dismissed the exception filed by J. C. Hilton, assignee,1 and sustained that filed by W. W. Johnson, trustee,8 and referred the report back to the auditor to state a distribution accordingly. The second report being filed, the exception thereto bj^ John C. Hilton, assignee,1 was renewed and dismissed, the report confirmed and distribution decreed in accordance therewith. Thereupon, this appeal was taken by John C. Hilton, assignee, and errors assigned to the overruling of his exception1 and the sustaining of that filed by W. W. Johnson, trustee.8</p>

<p>No. 199 July Term 1886, Sup. Ct.; Court below, No. 6 February Term 1884, Ex. D., C. P.</p> <p>On November 26, 1888, Nicholas Hofer filed a mechanics’ lien against a certain one-story frame and glass building, called a green-house, located on a lot or piece of ground, in the borough of Danville, Montour county, the property of Peter Baldy. Upon certain writs of fi. fa., one to No. 6 February Term 1884, issued upon a judgment against Peter Baldy in favor of Wm. J. Baldy, trustee, the premises subject to said mechanics’ lien were sold, $2,500 of the proceeds paid into court and an auditor appointed to make distribution. On the hearing before the auditor the right of Nicholas Hofer to receive prior payment upon bis mechanics’ lien was contested by R. G. Neal, trustee for Martha Clark, a judgment creditor; and, discrepancies arising between the testimony of Mr. Hofer and of witnesses on the. part of R. C. Neal, Mr. Hofer demanded an issue to determine the facts bj’’ jury trial, to avoid which the contestant filed an agreement that the testimony of Mr. Hofer already taken by the auditor on the hearing “ should be considered as tlie facts of the case by the auditor and the court relating to bis mechanics’ lien filed.”</p> <p>The bill of particulars attached to the mechanics’ lien began on October 16, 1882, with items of material and labor, and so continued, day after day almost, to December 2, 1882 ; then followed like items January 8 and 9; April 7, 9, and October 4, 5, 8, 9, 1883. The question raised in the court below and brought into this court, was upon the third objection to said claim, to wit, that it was not filed in time.</p> <p>The facts disclosed by the testimony of Mr. Hofer, before referred to, sufficiently appear in the opinion of this court.</p> <p>Upon this evidence the auditor, Mr. John G-. Freeze, was brought to the conclusion that so far as Mr. Hofer was concerned, the green-house was finished in April 1883; that the ventilating fixtures, whatever they were, were to have been put in by Mr. Wetzel, and that not until Mr. Wetzel failed to put them in, and what he proposed were believed or found to be too expensive, was Mr. Hofer applied to to do the work. It was not continuous nor in the ordinary progress of the work upon the building, as was that of January, preparing and delivering shelving which was delayed, without his fault, and put in place in April. For these reasons the claim of Mr. Hofer upon his mechanics’ lien was rejected, and a schedule of distribution recommended.</p> <p>Exceptions having been filed, the report of the auditor was confirmed by the court, William Elwell, P. J., delivering the opinion:</p> <p>Whether the green-house upon which Nicholas Hofer claims to have a lien was such an independent structure as entitled a mechanic or a material man to a lien, it is not necessary now to determine; but we concur in the opinion of the auditor in respect to the claim being filed too late.</p> <p>When work is done by the day upon a house, and all is done that the owner desires to have done at the time, the fact that the owner tells the mechanic that at some future time after he has concluded how he will have other work done in ventilating the building, and such work is afterwards done by the day, and a small amount of materials found, it will not draw to it the work and materials previously done or found by which the lien will be carried back to the commencement of the construction.</p> <p>After the work was done, except putting up the ventilators, there was no contract which bound Mr. Hofer to come back at some indefinite time and put them in; nor was Mr. Baldy obliged to employ Mm to do the work. When done, it was not within the meaning of the statute, “ continuous of the work, &c., previously done.”</p> <p>The exceptions by Mr. Hofer aré not sustained.</p> <p>And now July 5, 1885, the several exceptions to the auditor’s report are dismissed; and it is ordered and decreed that the fund in court, subject to such commissions or fees as the prothonotary is entitled to, shall be paid in accordance with said report.</p> <p>Thereupon Mr. Hofer took this appeal, assigning the dismissal of his exceptions as error.</p>

<p>No. 74 January Term 1887, Sup. Ct.; court below, No. 1008 October Term 1885.</p> <p>In March., 1885, the Plymouth Coal Company, operating the Dodson mine, in Luzerne county, made a contract with John Rothers, a miner, by which the latter was to mine coal for the company at the rate of seventy-six cents for each car of coal mined, and one dollar and sixty-five cents per yard for driving headings, Rothers to find his own supplies and labor. Rothers employed Adam Kommiskey as a laborer at the rate of two dollars and twelve cents per day or shift. When the contract was ended Rothers went to the paymaster’s office and drew from the company the money due him less his store account. Kommiskey had worked for a miner who had a contract with the same company prior to March, 1885, and had been paid by the company by direction of the miner out of the earnings of the miner’s contract. After he ceased to work for Rothers he went to the paymaster’s office and demanded pay for his labor and was refused. Kommiskey then brought suit against the company.</p> <p>The plaintiff testified, through an interpreter, in his own behalf, that he had worked eight shifts or days, in March, 1885, at |2.12 per shift; that when he went to the paymaster for his pay the latter told him his time was turned in and that the miner had taken everything out of the store. On cross-examination: he had been employed by John Rothers; he and the paymaster couldn’t understand each other very well; he had an interpreter, Joseph. Re-direct: Lance was the paymaster ; he had paid plaintiff when he had worked for other miners, who had always turned his time in.</p> <p>Walter Lance, the paymaster, called for the defendant company, testified as to the contract with Rothers, and that his account was overdrawn; that Rothers had not turned in Kommiskey’s time or given lfim any order before being paid in full himself, and that he did not know that plaintiff was working for Rothers before the latter received his pay. Davis, the mine-boss, testified that the rule of the mine was to pay the laborer when the miner turned in his time, and it was the custom for the miner to keep the laborer’s time and turn it in; that it was not the company’s rule to see after the time of the laborer.</p> <p>The defendant’s attorneys submitted certain points, when the court, Stanley Woodward, J., charged the jury as follows:</p> <p>This is an action brought by Adam Kommiskey against The Plymouth Coal Company, to recover a- certain amount of money which he claims is due him from that company, for work and labor performed in their mine. It seems that the plaintiff went to work for the defendant in March, 1885, that he worked eight shifts, as they are called-, at #2.12 per shift, loaded 48 ears, and that although he has frequently demanded Ms pay from the defendant for this work, he has not yet received it. It seems also, from the testimony of the plaintiff, that he had worked for the company for about a year, and that previous to tMs particular work he had been paid for his labor in the mines by Mr. Lance, who acted as paymaster and who kept a store there, where the accounts were also kept. The defence consists in an allegation that the company are not liable to the plaintiff, because he was employed to do this work, not by the company, but by a miner, or a contractor with the company, named Rothers.</p> <p>[This case raises a question of some importance in this mining region, which has not been definitely settled, so far as I know, by any decision of the Supreme Court. The question is one of law, and therefore it is the duty of the court to give the jury definite instructions in regard to their views of it. Hence, we say to you, that while it is true that a party is only liable to a contractor for the price of a contract piece of work, and is not responsible to other men employed under the contractor as sub-workmen, nevertheless, in a country devoted to mining, and where the custom is for miners to employ their laborers, and where also it is the custom that the company or operator shall settle not only with the miner but also with the laborer, that in such a case the custom makes the law, and the company or the employer may be liable to the laborer for his earnings, although they have made a contract with the miner to do a certain amount of work in the mines at a certain price.</p> <p>Now, we have the testimony of Mr. Davis, who states that he has been employed in the coal mines for several years, aijd that he wras the inside foreman of this particular mine at the time to which your attention has been directed by the evidence in this case. He states, furthermore, that the mining has been done at that mine through the medium of laborers and miners, as is generally the case in this region. He also states that it has not been the custom at this mine for the miner to draw his laborer’s pay. This is qualified to some extent by his cross-examination, but the fact remains that it has not been the custom at this mine, heretofore, for the miner to draw the laborer’s pay, without some order or direction to the contrary by the laborer-; and we say to you that, in our opinion, the law is this: That where a coal company emploj^s or contracts with a miner, and the miner employs the laborer, and keeps his time, and returns it to the employer; and where, furthermore, it has been the custom of the employer to pay the laborer according to this return, that in case any change of practice is made at that particular mine in this regard, it is the duty of the company or employer to notify the laborer of that change, or else the company or employer will still be liable to pay the laborer for his work. Therefore we say to you that, in our judgment, in this particular case, it having been shown that for some months previous to the time in question, this laborer had been paid by the ■ company upon returns of time made by the miner, and that the company had given no notice to him of any change in their practice in this regard, if you are satisfied that his claim is not denied, is correctly stated as to the amount of work done, and the price, then having received no notice of this change of practice, he would be entitled to your verdict against this company for the amount remaining due him for his services. We state this distinctly as our opinion, so that it may be fully understood, and we be corrected in our law if we are reviewed by a higher tribunal, to which this case will probably be taken.</p> <p>Under all of these circumstances, we say to you as matter of law, there 'being no question about the amount involved, the plaintiff is entitled to your verdict.]1</p> <p>I am asked by defendant’s counsel to charge you upon certain points in writing, as follows:</p> <p>1. From the undisputed evidence in the case, the plaintiff was an employee of a miner named Rothers and not of the said defendant, and the verdict of the jury should be for the defendant.</p> <p>We decline so to charge you.8</p> <p>2. There has been no contract shown between the plaintiff and the defendant, and therefore there can be no recovery.</p> <p>We decline so to charge you.3</p> <p>3. There has been no. such custom as to the paying of the laborer by the miner as would hold the defendant here; particular customs do not make law; if this were the custom here, it would be particular and therefore would bind nobody. Taken as a whole, we decline to affirm that point.4</p> <p>4. That the only evidence as to custom, general or particular, is that the defendant would stop from the miner the wages of the laborer, only when he had previously had his time returned into their office ; and the plaintiff not having done this previous to the payment of the miner, cannot recover.</p> <p>We decline to charge you as stated in that point.5</p> <p>The jury found for the plaintiff for $18.31; and, after judgment entered, the defendant took this writ, assigning as error:</p> <p>That part of the charge embraced in [ ] 1</p> <p>The answers to the defendant’s points, s’3’4’5-</p>

<p>No. 386 January Term 1887, Sup. Ct.; Court below, No. 262 February Term 1885, C. P.</p> <p>The trial in the court below was on an appeal by Daniel Shovlin, the defendant in an action of trespass brought by John F. Owens before a justice of the peace.</p> <p>On March 19, 1884, Daniel Shovlin demised to John F. Owens a lot and dwelling in Wilkes-Barre for one year from April 1, 1884, at a rental of $185, payable $15 per month in advance The lease contained this provision :</p> <p>It is further agreed, that in case of removal, or attempt at removal, of said John F. Owens from said premises during the continuance of this lease, then and in that case the whole rent unpaid to become at once due and payable, and collectible by distress or otherwise, at option of the lessor.</p> <p>Owens, the lessee, entered upon the premises and remained in possession until November 27, 1884, when, complaining of arbitrary restrictions with reference to the use of the premises he moved away taking his goods and chattels with him. At that time the rent had been paid in full up to December 1.</p> <p>Shovlin, the lessor, then executed a landlord’s warrant and caused a distress and sale of all the furniture and household effects of Owens in his new residence, whereupon the latter brought said action of trespass before a justice who gave judgment in his favor for $188.50; whereupon the said appeal was entered.</p> <p>On the trial, the foregoing facts and the value of the property sold were shown, and at the close of the testimony the plaintiff requested the court to charge the jury:</p> <p>That the clause in the lease “ that in case of removal on the part of the lessee from the premises during the continuance of the lease then and in that case, the whole rent unpaid to become at once due and payable and collectible by distress or otherwise,” did not warrant a distress and sale on a landlord’s warrant of the lessee’s goods already moved to premises not covered by lease, there being no rent actually due and no allegations or proofs that said goods were clandestinely or fraudulently removed. 3</p> <p>The court, Stanley Woodwakd, J., then charged the jury jury as follows :</p> <p>This is an action of trespass brought by John T. Owens against Daniel Shovlin to recover damages for an alleged illegal distress upon personal property for rent. There is no dispute in the case as to the fact that Shovlin, the defendant, leased the property to Owens, the plaintiff. The rent for the premises was to be $15.00 per month, payable monthly in advance. [At the time the tenant, Owens, quit the premises, which was in November, 1884, he had paid all the rent due. That is, he had paid for all the months preceding the time that he left, including the month of November, during which he left. It is not denied that the distress in question took place upon other premises than those covered by the lease ; hence the plaintiff alleges their seizure on the distress and their sale was a trespass and he seeks to recover the amount in damages caused thereby. In the view we take of the law of the case, we feel it our duty to say that the plaintiff is not entitled to recover.) 1.....</p> <p>The act of Assembly of the 21st of March, 1772, provides that in case any lessee for life or lives, term of years, at will or otherwise, of any messuages, lands or tenements, upon the demise whereof any rents are or shall be reserved or made payable, shall from and after the publication of this act, fraudulently or clandestinely convey or carry off from such demised premises his goods and chattels with intent to prevent the landlord or lessor from distraining the same for arrears of such rent so reserved as aforesaid, it shall and may be lawful to and for such lessor or landlord, or any other person or persons by him for that purpose lawfully empowered, within the space of thirty days next ensuing such conveying away or carrying off such goods and chattels as aforesaid, to take and seize such goods and chattels wherever the same may be found, as a distress for the said arrears of such rent and the same to sell, etc.</p> <p>[We say to you, in our judgment as matter of law, if this were a simple lease between two parties, the. force and effect of which, so far as the remedies by distress or otherwise were concerned, depended not on the language of the instrument but upon the act of Assembly in regard to landlord and tenant, then there could be no distress except upon the premises demised, unless it was shown that the removal was fraudulent or clandestine. But we say to you further, that the law of this case is to be found in the contract which the parties made and which is shown by the lease. This lease provides, among ■ other things, as follows: “ It is further agreed that in case of removal or attempt at removal of said John F. Owens from said premises during the continuance of this lease, then and in that case, the whole rent unpaid to become at once due and payable and collectible by distress or otherwise, at the option of the lessor.” It is admitted that the tenant did remove these goods during the time of this lease to other premises without the consent of the lessor. This, under the contract, caused the whole rent to become at once due and collectible by distress or otherwise. It follows under this evidence that the action of the landlord was agreeable to the contract, and therefore was not a trespass for which he is liable in damages.] 8 In the cases cited to us there was no such contract; they turned as we understand them on the significance of the terms clandestine or fraudulent, and not on the provisions of a lease like this.</p> <p>Holding these views, we say as matter of law, that in our judgment there was no trespass in this case, and, therefore, there can be no recovery by the plaintiff, and your verdict should be for the defendant.</p> <p>The jury rendered a verdict for the defendant, whereupon the plaintiff took this writ and assigned for error :</p> <p>1. That part of the charge embraced in [ ] 1</p> <p>2. That part of the charge embraced in [ ] 8</p> <p>3. The refusal of the court to charge as in point. 3</p>

<p>No. 119 January Term 1886, Supt. Ct.; court below, No. 64 June Term 1883, C. P.</p> <p>This was an action in case for negligence by John Rhoads against The Lancaster Avenue Improvement Company, to recover damages for injuries received by the plantiff. The defendant company was reducing the grade of its turnpike road at one point and had employed, by a verbal contract, B. M. and J. F. Shandley to do the work of grading and reconstruction for certain prices per cubic yard of grading and per cubic yard of stone. The road on one side had been graded down, the other side remaining open for travel. Tolls were collected from travelers. The plantiff, driving a load of hay at night too near the embankment, was thrown over and injured. The material facts are fully stated in the opinion.</p> <p>On the trial before B. Markley Boyer, P. J., the defendant company submitted certain points which, with their answers, were as follows :</p> <p>1. The defendants, having by contract given to Messrs. B. M. and J. F. Shandley, the work of grading and constructing the turnpike at the point where the accident occurred, and the said accident having occurred during the progress of the work, are not responsible to the plaintiff for any injury he may have sustained through the negligence of the contractors or any of their agents or servants, and your verdict must therefore be for the defendants.</p> <p>Answer: This is true, unless the injury resulted - from the negligence of the defendants in trusting to the contractors or their employees duties which devolve upon the defendants themselves.1</p> <p>2. If the jury believe from the evidence that the defendants contracted with another person to perform the work of altering the grade of the turnpike at the point where the accident occurred, and had intrusted to said contractor the sole charge and management of the work, they are not liable for any injuries the plaintiff may have sustained by reason of any negligence upon the part of the contractor or of his agents or employees.</p> <p>Answer: We decline to affirm this point as it stands, for the defendants could not delegate to a contractor all the responsibilities which devolved upon them by their charter, as trustees, for the public traveling upon their road. They could not lawfully create dangerous nuisances in their highway, or knowingly permit them to be maintained by others.8</p> <p>3. That the engineer, employed by the defendants, exercised a supervision over the work while it was in progress, does not make the defendants responsible if you find the facts to be as stated in the second point.</p> <p>Answer: The employment of an engineer by the defendants, as stated, makes the defendants neither more nor less responsible. They are answerable in either case for the consequences of their own negligence or the negligence of their agents.3</p> <p>9. Under all the evidence in this case your verdict must be for the defendants.</p> <p>Answer: We decline to affirm this point.4 •</p> <p>Under the charge of the court and the answers to said points, to* which the defendant excepted, the jury found a verdict for the plaintiff for $1,525. A motion for a new trial being refused (reported in 17 W. N. 125), the defendant took this writ, assigning for error:</p> <p>1. The answer to defendant’s point.1</p> <p>2. The answer to defendant’s point.8</p> <p>3. The answer to defendant’s point.3</p> <p>4. The answer to defendant’s point.4</p>

<p>No. 391 January Term 1887, Sup. Ct.; Court below, No. 117 July Term 1886, C. P.</p> <p>In an action before a justice by George W. Good against The Pottsville Iron & Steel Company, at Pottsville, for wages as an employee, the justice gave judgment for the plaintiff, when an appeal was taken by the defendant.</p> <p>On the trial in the court below, it was shown that the plaintiff was a machinist and draftsman, but being unemployed in that work, sought and obtained employment as a roll-turner with the defendant company on January 4, 1886, at $9 per week, but for an unspecified time. He was not then informed of a rule of the company requiring fourteen days notice by an employee of an intention to quit, in default of which the pay due at the time of quitting was tobe forfeited. The rule is printed on time-cards, or “ dividers,” upon which appears also a statement of the account of the employee, and the card is handed to the employee at the end of each month, to be receipted and returned on the third Saturday of the following month when payment is made. The plaintiff admitted that he knew of the rule on February 20, 1886, when he signed the “ divider ” for the month of January, which when signed was as follows:</p> <p>No. 306. Pottsville Rolling Mills, Jan., 1886.</p> <p>George Good, R. T.,</p> <p>In account with the Pottsville Iron & Steel Co.</p> <p> </p> <p>Employees must give fourteen days notice when they wish to leave our employ. If they do not give the notice required, it is agreed and understood that they forfeit all wages due them at the time they so quit work, without the required fourteen days notice..</p> <p>Pottsyille Ikon and Steel Co.</p> <p>Received payment, 2, 20, 1886.</p> <p>Geo. W. Good.</p> <p>The plaintiff signed a similar time-card on March 20, 1886, for the pay for February ; but on March 31, 1886, having received an offer of employment at his trade of machinist and draftsman from another company at higher wages, he quitted the defendant company on a notice of one day and a half. Subsequently, payment of his wages for March being refused by defendant, he brought suit therefor.</p> <p>The court, O. P. Bechtel, J., after reviewing the testimony, charged the jury:</p> <p>As there is no dispute upon two of the propositions in this case, first, as to the amount of money which this man has-earned, if he is entitled to recover it at all; and second, the fact that he did not give two weeks notice, we regard this as entirely a question of contract; what was the bargain between this plaintiff and the defendant? Of course, this plaintiff would be, just as any other plaintiff, bound by any contract or bargain which he makes with a party when he goes into their employ. He is as much required to observe the terms and conditions of this contract as any other person would be who enters into a contract and either labors or agrees to do any other matter or thing. Parties are required to live up to their contracts.</p> <p>First, then, what was the contract between the plaintiff and defendant? If you should find that, at the time he went to work for the defendant there was in existence at that place, and, according to Ziebach’s testimony, there was a rule that all employees were required to give two weeks notice before they quit work, and, as a penalty for their failure so to do, to forfeit what was then due to them for their services; and second, that he had knowledge of the existence of that rule at the time he made his bargain with Sharpless in January, or that, after he had worked a certain length of time, he made a bargain with the company thereafter to be governed by such rule, which required him to give two weeks notice prior to his leaving the employ of his employer ; in either such case, or in case you find either of these two matters in this way, it would be your duty to render a verdict in favor of the defendant, because it would place the plaintiff in the position of having bargained to give that notice, and of having failed to observe the provisions of his own contract.</p> <p>[If, upon the other hand, you should find that, at the time he entered the employ of the defendant, it was entered through a bargain made with Sharpless, and either that there was no such rule in existence at the time, or, if there were, that the plaintiff had no knowledge of any such rule, and entered the employ of the defendant without any knowledge of the existence of such rule; that there was no definite time fixed as to how long he should labor for his employer, but that the employment continued until it was terminated either by the act of the employer or the act of the employee; then we think it would be your duty to render a verdict in favor of the plaintiff for the full amount of his wages, with the interest on it from the time it became due and payable under the contract between the plaintiff and the defendant; for, in such case, the plaintiff would be in the position of not having contracted to give two weeks’ notice before he quit the employ of the defendant, and, of course, would not be required to do that, which he did not agree to do. And as you determine this ^question, so your verdict will necessarily have to be.] 1</p> <p>The jury returned a verdict for the plaintiff $51.25, whereupon the defendant company took this writ, assigning for error:</p> <p>1. That part of the charge embraced in [ ] 1</p>

<p>No. 377 January Term 1886, Sup. Ct.; Court below, No. 6 March Term 1884, C. P. in equity.</p> <p>I. D. Rosenberger filed a bill in equity in the court below against Aaron Sperry et al., members of Springhouse Lodge, No. 329, I. O. O. F. of Pennsylvania, setting forth a wrongful suspension from the lodge and praying for a decree of restoration to membership and an account of benefits to which he Was entitled. An answer having been filed, Mr. F. G. Hobson was appointed Master, who found the following facts:</p> <p>That the plaintiff was a member of said lodge from September 1, 1849, and in good standing until July 1, 1881; that on April 30, 1881, he was reported sick to the lodge and on May 14*1881, he demanded by letter two weeks benefits; that on July 9, 1881, James M. Walters, a member, preferred charges against him, alleging that he was attempting to defraud the lodge by a feigned sickness and disability; upon which charge an investigation or trial committee was appointed in conformity with the laws of the order, and notice served; that at the date and place the committee were to meet, the plaintiff attended, but as only three members of the committee appeared nothing was done; that on August 13, 1881, the lodge appointed a new committee of five members, to investigate the charges, and at their meeting, the plaintiff did not attend, and on August 27, 1881, he was reported to the lodge as in contempt ; that on September 10, 1881, the plaintiff was expelled from the lodge for his failure to attend the trial committee; that he then appealed to the Grand Lodge of Pennsylvania, which body reversed the action of the lodge below and recommended that the plaintiff be tried on the original charge; that then the lodge proceeded to try the plaintiff upon the original charge and by the committee already appointed, one of whom then resigned and another member was appointed in his stead; that at a full meeting of the committee on March 28, 1882, the plaintiff and Ms counsel were present and testimony was taken; that at this hearing the plaintiff called Dr. B. K. Johnson, whose testimony was rejected by the committee on the ground that he had not attended the plaintiff until after the charge had been filed in the lodge; that the committee found and reported that the plaintiff was guilty on all the specifications of the charge and on April 15, 1882,'the plaintiff being present at the lodge meeting, the report of the committee was considered and its finding made the judgment of the lodge; whereupon a motion to expel was lost, but a motion to suspend the plaintiff for two years was carried by the necessary vote; that plaintiff then appealed to the Grand Lodge, and thence to the Sovereign Grand Lodge, and his appeals were dismissed, whereupon he filed this bill.</p> <p>The master further reported:</p> <p>1. That the charge made, if true, was not found to be sufficient to expel, or to suspend, the plaintiff.</p> <p>2. That the appointment of the investigation or trial committee was not in conformity with the constitution and laws of the order, in that the N. G. had appointed two members, the V. G. two, and the N. G. the fifth member, whereas the plaintiff had the right to appoint the fifth member; but that the plaintiff had expressly waived' this irregularity.</p> <p>3. That the proceedings before the said committee were irregular in this : (1), that the committee refused to take and report the testimony of Dr. Johnson who had attended the plaintiff in his sickness, on the ground that the attendance was after the charge was filed; (2), that the lodge itself appointed counsel to prosecute, and (3), that the evidence taken was not read to the lodge, — all which was contrary to sections 3 and 4, article VIII., of the constitution of the lodge.</p> <p>4. That the master had no right to inquire into the merits of the case on the charge made.</p> <p>5. That the plaintiff had a right to an account of the benefits he should have received, which were found to be $600.50.</p> <p>The master recommended a decree that the plaintiff be reinstated in his membership and that the defendants pay the said sum of $600.50 as benefits to which he was entitled from April 30, 1881, to April 10, 1884.</p> <p>The following are provisions of the constitution of the lodge:</p> <p>Article VIII.</p> <p>Sec. 3. It shall be the duty of the committee to examine the parties, their proofs and witnesses, giving the member charged notice and full opportunity to be present at the examination. The accused and the accuser shall each have the right to be represented before the committee, by a member of the order. The committee shall keep a correct journal of its proceedings, and shall also reduce the testimon}1- taken to writing, to be signed by the witness ; after having heard the evidence they shall reduce their opinion as to the guilt or innocence of the person charged, on each charge, to writing, and report the same, together with the journal and the original copy of the testimony, to the lodge at its earliest meeting.</p> <p>Sec. 4. After the presentation of the report of the committee to the lodge, the brother charged shall be notified thereof, and at the next stated meeting of the lodge the report shall be considered; after consideration a ballot shall be taken, and if a majority of the votes approve the finding of the committee, it shall be recorded as the judgment of the lodge. If found guilty the lodge shall then prescribe the punishment to be imposed; the vote thereon shall be by ballot in all cases; but for an expulsion the assent of two thirds of the members voting shall be required.</p> <p>The defendants filed exceptions to the report of the master, which were overruled by the Court, B. M. Boyer, P. J., and the decree made as recommended; whereupon the defendants took this appeal, and assigned that the Court and master erred :</p> <p>1. In holding that there was irregularity in the appointment of the trial committee.</p> <p>2. In holding that the rejection of the testimony of Dr. Johnson was an irregularity.</p> <p>3. In taking jurisdiction of causes of complaint not raised by the plaintiff in his appeals to the tribunals of his own order.</p> <p>4. In not holding that the judgments of these courts were conclusive.</p>

<p>No. 447 January Term 1887, Sup. Ct.; Court below, No. 36 May Term 1885.</p> <p>This was an action of ejectment brought by Elizabeth Krebs, widow of Jacob Krebs, deceased, against Philip Stroub, to recover a tract of 73 acres and 130 perches of land in Union township,‘Snyder county.</p> <p>On the trial the jury found a special verdict containing the following facts:</p> <p>The plaintiff is the widow of Jacob Krebs, deceased, who died May 7,1877, and who had been the owner of the land described in the writ. On August 26, 1868, Jacob Krebs and his wife, the plaintiff, executed and delivered to William Krebs, a son, a conveyance of said tract, in the usual form with general warranty, “ for and in consideration of the sum of one hundred dollars, and for the further consideration of articles of agreement entered into by above named parties, bearing even date herewith, lawful money of the United States of America, to them in hand paid,” etc. The deed was followed by a receipt of “ the assurances as mentioned in an agreement made by the within named parties, and the sum of one hundred dollars in full of the consideration above named,” was acknowledged the same day and recorded on July 19, 1875.</p> <p>On the date of the conveyance William Krebs executed and delivered a contemporaneous instrument which read as follows :</p> <p>Know all men by these presents, that I, Wm. Krebs, of the township of Chapman, county of Snyder, and state of Pennsylvania, am held and firmly bound unto Jacob Krebs, my father, of the same place, in the sum of five hundred dollars, lawful money of the United States, to be paid to the said Jacob Krebs or his legal wives, which he may have during his lifetime, or to their certain attorneys, executors, administrators, or assigns, to which payment well and truly to be made and done I1 do bind myself, my heirs, executors and administrators, and every one of them firmly by these presents, sealed with my seal, and dated this 26th day of August, A. d. 1868.</p> <p>Whereas the said Jacob Krebs and Elizabeth, his wife, by indenture bearing even date herewith have granted and confirmed under the said William Krebs, in fee, a certain messuage, situated in the said township of Chapman, beginning .....containing seventy-three acres and one hundred and thirty-one perches and. allowance,.....the said William Krebs having agreed to maintain in part the said Jacob Krebs and wife Elizabeth, or other legal wives which said Krebs may have during his life time.</p> <p>Now the condition of this obligation is such, that if the said Wm. Krebs or his heirs, executors, administrators or assigns, shall and do allow the said Jacob Krebs or his wife or widow, during each of their natural life time and furnish them with of all cord wood needed, 15 bushels of wheat, 5 bushels of rye, 30 bushels of corn in ears, 20 bushels of oats, 10 bushels of cook potatoes, 35 pounds of beef (no neck), 3 bushels of buckwheat, and as much fruit of all kinds as may grow on said premises as they may need for family use, one peck of chestnuts (if any grow), two gallons of apple-butter and one half barrel of cider (if any apples grow),, pasture for 2 months, one horse, two cows, and three pigs, two tons of timothy hay and one two horse load of corn-fodder and one third of all straw needed. All the above items shall be delivered unto the said Jacob Krebs, or his widow, during their lives, delivered annually at their door, providing said Jacob Krebs or his widow does not move away from the premises herein described a greater distance than Selinsgrove is from said described tract of land. That the said William Krebs shall also well and sufficiently maintain and keep Mary J. A. Krebs, a blind grand-child of said Jacob Krebs (only however until the death of said Jacob Krebs), in the house of him, the said Wm. Krebs, for four months in each year with meat, drink, lodging and washing. And also furnish her with one third of all her clothing and one third of bill of medical attendance, and one third of funeral expenses, should she not survive said Jacob Krebs.</p> <p>All the above items to be delivered by the said William Krebs, or his heirs, executors, administrators and assigns, then this obligation to be void: but if default shall be made in any of the items or articles aforesaid, then to be and remain in full force and virtue. This indenture to take effect in April 1, a. d. 1869.</p> <p>Wm. Krebs. [L. S.]</p> <p>William Krebs failed to deliver in the years 1881-1885 inclusive, certain of the articles mentioned in the bond, the aggregate value of which with interest was $377.48, and his title had passed by various conveyances to the defendant who was in possession of the lands in dispute.</p> <p>The verdict then concluded :</p> <p>We find for the plaintiff the land mentioned in- the writ, to be released upon the payment of the above sum within six months with interest from date, and that annually thereafter that the defendant and the owners or occupiers of said premises shall deliver the articles of produce, etc., mentioned in the said bond or agreement referred to in the deed from Jacob Krebs and wife.</p> <p>That if upon the facts as herein found, the plaintiff is entitled to verdict, then our verdict is for the plaintiff $377.48, otherwise our verdict is for the defendant, and if ejectment can be sustained in this case, then our verdict is for the amount aforesaid.</p> <p>After argument of the question raised by this special verdiet, the court, J. C. Bucher, P. J., delivered the following opinion:</p> <p>It will be seen from this statement of the facts that the sole question is whether ejectment will lie to enforce the delivery of the articles recited in the bond and conveyance. If it will, judgment to be entered for the plaintiff for the -lands described in the writ to be released upon the payment of $377.48. If ejectment will not lie, judgment to be entered for the defendant. It will have been observed from the language of the conveyance already recited that it is not made upon the condition that the grantee shall perform the acts and deliver the articles specially enumerated in the contract. The legal title passed from Jacob Krebs, the vendor, to Wm. Krebs, his vendee, even though he did not pay at the time the consideration contracted for, but covenanted and agreed to pay it in futuro. It is not like the case of Bear v. Whisler, 7 W. 144, where the estate was granted upon condition, nor Westhoff v. Dracourt, 3 Idem 240, where there was a reservation of two rooms in the house, nor Watters v. Bredin, 70 Penn. St. 235, where the estate was upon condition. In these, and in kindred cases as well, it has been held that ejectment will lie to enforce a .condition contained in a deed, but in the case at hand, there is neither a condition nor a reservation in the conveyance. The words, proviso, ita quod, sub conditione, or their equivalent, is necessary to create a condition in a deed, and they are wanting, and for that reason ejectment will not lie.</p> <p>At most, the conveyance and bond or agreements constitute a covenant or contract on the part of Wm. Krebs, the grantee, to pay the grantor the consideration therein contracted for. Ejectment will lie to enforce a condition, but not a consideration : Cook v. Trimble, 9 W. 15; Heacock v. Fly, 14 Penn. St. 540; Garver v. McNulty, 39 Idem 473; Bortz v. Bortz, 48 Idem 386; Perry v. Scott, 51 Idem 124. The remedy of plaintiff is by action on the contract, and not by ejectment. It may be that the remedy is made inadequate by reason of the insolvency of the party, but this cannot be considered.</p> <p>Judgment having been entered in favor of the defendant, the plaintiff took this writ, assigning for error the construction put upon said deed and contemporaneous instrument, and the entry of judgment for the defendant.</p>

<p>No. 23 January Term 1886, Supt. Ct.; court below, 279 April Term 1880, O. C.</p> <p>J. Sergeant Price and Joseph B. Townsend, members of the Philadelphia bar, were employed by Lewis A. Scott, Esq., guardian of Lewis A. Scott, Jr., and his two brothers, minors, to recover in ejectment real estate in the city of Philadelphia, valued by the city assessor at $151,800. The suit was successful; see proceedings in the court bejow: Scott v. Wistar, 13 W. N. 295, in this court; Wistar v. Scott, 105 Penn. St. 200. The guardian had paid in part for the services of his counsel, but they claimed, as additional compensation, $700 from the estate of each plaintiff in said suit.</p> <p>The ward, Lewis A. Scott, Jr., coming of age, his guardian settled a final account embracing personal estate alone, showing a cash balance due the ward of $222.39 and securities of the value of $2,700. Upon the adjudication of the account by the Orphans’ Court, Mr. Price and Mr. Townsend presented their claim against the property of the ward in the guardian’s hands as shown by the said account, and offered to prove—</p> <p>(1) That they were employed by the guardian during his ward’s minority, in the name and right of the ward, to conduct the litigation referred to, and did conduct it to a successful termination. (2) That the guardian had offered to pay them $800 in full of their claim. (3) That the amount charged for their services was reasonable and fairly earned.</p> <p>The auditing judge, Hanna, P. Jdisallowed the said claim, and, exceptions being filed, after argument dismissed the exceptions and confirmed the adjudication, filing the following opinion:</p> <p>The single question presented is, whether the Orphans’ Court has jurisdiction to determine a contested claim against a guardian, and, through him, the minor’s estate. Under § 10 of the act of March 29,1832, P. L. 192, the account of a guardian should include the “ management of the minor’s property under his care,” and is a settlement only between himself and his ward. The latter, if living at the time of settlement, is, other than the guardian, alone interested.</p> <p>It follows, therefore, that matters foreign to transactions between the guardian and ward, during the minority, have no place in the adjustment and settlement of the account: Crowell’s Appeal, 2 W. 295; Portuondo’s Est., 14 Phila. 271. This being the case, should claims be presented against the minor’s estate, or against the guardian personally? Unless they be admitted by the latter or by the late minor to be correct, and payable out of his estate coming to him from his late guardian, the Orphans’ Court has no jurisdiction to determine their validity, or the liability either of the guardian or the late minor, but must remit the claimants to their remedy at law. And the parties sought to be made liable have a right to a trial by jury, and, in case of judgment, to the exemption allowed by law to every debtor: Shore’s Est., 10 W. N. 572.</p> <p>The exceptions are dismissed, without prejudice to claimants’ right to proceed at common law, and the adjudication is confirmed.</p> <p>In this ruling, Penrose, J!, concurred, but Ashman, J"., filed a dissenting opinion. Mr. Price and Mr. Townsend then took this appeal, assigning the decree and confirmation as error.</p>

No. 210 January Term 1886, Sup. Ct.; court below, No. 85 September Term 1881, O. C. The parties to this cause were John W. Walker and Thomas M. Walker, executors of the last will of John H. Walker, deceased, appellants, and Mrs. Catharine Davenport, Mrs. Belle M. Armstrong, Mrs. Mary Beemer, children and heirs of said deceased, and E. L. Whittelsey, guardian of Catharine D. Davenport and Catharine D. Armstrong, devisees of Harry Walker, deceased, appellees.

<p>No. 207 January Term 1887, Sup. Ct.</p> <p>The action below was debt by Sarah Hilberry against Henry H. Clever, upon a bond for $1,250, dated October 6, 1881.</p> <p>In August, 1881, Sarah Hilberry, the plaintiff, who was an old lady, went to the house of H. H. Clever, the defendant, who was her nephew. She remained there apparently as a guest until October 6, 1881, when an arrangement was entered into in pursuance of which she conveyed to Mr. Clever all her real estate, consisting of a house and three lots of ground aggregating thirteen acres and six perches, and transferred to him also her personal property consisting of about $85 in money and her household effects. In consideration of this conveyance and transfer, Mr. Clever executed a bond to her in the sum of $1,250, the condition of which was that “the said Henry H. Clever, his executors, administrators or assigns do and shall from time to time and at all times hereafter during the life of said Sarah Hilberry well and sufficiently keep or cause to be well and sufficiently maintained and kept the said Sarah Hilberry in the house of Mm, the said Henry H. Clever, with meat, drink, clothes and all1 other things necessary and convenient.” The papers were prepared by Mr. Miller, an attorney.</p> <p>Under this arrangement the old lady made Mr. Clever’s house her home until July 6, 1885, when she left. She then went about from house to house in the neighborhood until the spring of 1886, when she was committed to the poor house of the county, where she was an inmate when this cause was tried. She had brought suit upon the bond on September 28, 1885.</p> <p>On the trial before Sadler, P. J., the plaintiff, called in her own behalf, testified to various matters constituting a breach of the conditions of the bond, — that she had not been provided with sufficient clothing; was obliged to purchase yarn and knit her own stockings; had insufficient bedding and insufficient fuel; was obliged to cut and carry wood for herself in inclement weather, and that she had been treated unkindly by members of the defendant’s family, on account of which she was compelled to leave defendant’s household. She was corroborated by a number of witnesses.</p> <p>In his'case in chief the defendant testified that it was only after repeated refusals and with great reluctance and hesitation that he had agreed to take the plaintiff into his house; that he had provided for her as he had done for Ms own family, as to food, fuel and clothing, and never to his knowledge was she ill treated; that his table was well provided and her room well furnished, and that when she left he bad endeavored, but failed, to have her return. The testimony of defendant was corroborated by that of a number of witnesses', including the members of his family, neighbors and the family physician and minister.</p> <p>The defendant being on the stand :</p> <p>Defendant’s counsel propose to prove by the witness on the stand that at the time Miss Hilberry went to her counsel, Mr. Miller, she represented to him that her property was worth twelve hundred and fifty dollars; that when Mr. Clever, the defendant, came there and they agreed to enter into the execution of the deed and make the bond, that Mr. Clever accepted deed and executed the bond, the consideration stated in each being twelve hundred and fifty dollars, with the understanding on all sides, and by both parties, and by their counsel, that he was to be held in no event for more than the value of the property, whatever that might be; that he had no knowledge of the true value of the property at the time, and accepted plaintiff’s statement as to its value as the true one ; that he has since learned it is not worth more than eight hundred dollars, with all the improvements he has since put on it, and that it was a mistake to the extent of more than one third of the value of the property to have estimated it at twelve hundred and fifty dollars; this for the purpose of limiting the liability of the defendant, if there is any, for his breach of this bond, to the actual value of the consideration which he received for the execution of the contract.</p> <p>Objected to; that there is nothing in the offer alleged which, if proven, would justify a reformation of the contract between the parties as entered into at the time; no fraud, or mistake, or imposition is alleged and the effect of the offer would be to make a new contract entirely independent of the written one.</p> <p>Q. (By the Court.) Did you know of the property before you took it? A. Yes, sir; I saw the property.</p> <p>Q. How near is it to you ? A. About a mile.</p> <p>Q. Did you know it for many years ? A. I passed along.</p> <p>The Court. — The offer is rejected; defendant excepts and bill sealed.1</p> <p>In the plaintiff’s rebuttal, the testimony of Joseph Martin and Emily Warren was admitted under the offer and ruling following:</p> <p>Plaintiff’s counsel offer to show the declarations of Sarah Hilberry made to this witness soon after she left the house of Henry Clever as to the manner in which she was treated at Mr. Clever’s house; these declarations being of the same character as those made by the witness on the stand; this for the purpose of showing that the statement she has made on the stand is not of recent fabrication; the defendant having introduced testimony to contradict the statement made by Sarah Hilberry when on the stand that she expressed herself as well satisfied with her treatment, to show that she was childish and her mind impaired by age; that she said to this witness, that she didn’t get enough to ' eat, hadn’t sufficient clothing, and was badly treated by the members of the family, and used to leave the house on that account; the purpose of this testimony is to show that her testimony given on the witness stand has not been fabricated recently, but is the same story she told at the time she left the house.</p> <p>Objected to: That this is a civil issue, and the point in controversy is as to whether Miss Hilberry was provided with food, clothing, drink and other necessaries in the family of Mr. Clever, by him. She has already testified on the stand that she was not so provided, but, on the contrary, that she was neglected and badly treated. This testimony goes to sustain her cause of action. The defendant has shown that she was properly clothed and fed and well treated, and that she had no just cause of complaint. The plaintiff cannot bolster her testimony by showing that she made declarations of a similar character to other witnesses; the best statement of her complaint comes from herself, and it is improper to allow her to be corroborated by her declarations coming at second hand from another party, and not made in the presence of the defendant; secondly, the evidence is incompetent; the defendant has not introduced any evidence to show that her mind was impaired, but one of the witnesses on the stand, in giving a reason for not reproving her, said that she regarded her as childish, and this is the whole extent of the testimony on that subject.</p> <p>The Court: We believe this testimony would tend to show tiiat the story of the plaintiff is not of recent fabrication, and that it will also help the jury in rightly estimating her mental condition. The offer is admitted; defendant excepts, and bill sealed.4</p> <p>The following are certain points submitted by the defendant, with their answers:</p> <p>3. Miss Hilberry claims, as any other person, on the letter of her bond, and it was incumbent on her to do her duty as well as Mr. Clever. It was her duty, under her contract with Mr. Clever, to notify him of any neglect or improper conduct by.his family or hirelings toward her, so as to allow him an opportunity to correct anything that was wrong, and if she left Mr. Clever to believe that he and his said agents were doing their duty towards her, and, instead of notifying him because she thought it would make trouble between him and his wife, or for any other reason, preferred to and actually did relinquish her bargain, and went away rather than notify Mr. Clever, then she cannot complain of a breach of the bond by Mr. Clever, and the verdict should be for the defendant.</p> <p>Answer: Under the bond of the defendant his duty was to well and sufficiently keep, or cause to be well and sufficiently maintained and kept the plaintiff, to provide her with meat, drink, clothes, and other things necessary and convenient. We do not think that he would be excused from the performance of its conditions because the plaintiff did not complain to him (especially so as she gives a reason for not making complaints to him); but if she misled the defendant by false statements as to the provision made for her and the treatment given her by his family, and this was the reason why defendant failed to maintain, keep and provide for her as he had bound himself to do, he would be excused, and the plaintiff could not recover.2</p> <p>6. If the jury believe that the clothes of plaintiff were not washed, wood was not provided, and that the children and family annoyed her, and that she never communicated any of these facts at the time to defendant, or gave him notice thereof, plaintiff cannot recover, and verdict must be for defendant.</p> <p>We refuse this point. We think, as we have stated already, that as the defendant gave his bond, the condition of which was to do certain things, upon him was an obligation to perform his bond according to its condition; and he was not excused from the performance because the old lady did not tell him that she was not sufficiently provided for or properly treated. It would only be in case she misled him by reason of false representations which prevented him from complying with the condition in his bond.3</p> <p>The jury found a verdict for the plaintiff for $792, and after motion for a new trial refused and judgment entered, the defendant took this writ, assigning for error:</p> <p>1. The rejection of defendant’s offer.1</p> <p>2. The answer to defendant’s third point.8</p> <p>3. The answer to defendant’s sixth point.3</p> <p>4. The adinission of evidence under plaintiff’s offer.4</p>

<p>No. 129 January Term 1887, Sup. Ct.</p> <p>The case originated by the petition of Joseph M. Morrow, son and devisee under the alleged will of Thomas W. Morrow, deceased, to the register of wills of Perry county, and, upon appeal, to the Orphans’ Court, of said county, to vacate letters of administration upon the estate of the deceased, granted to Thomas Morrow and Robert Morrow, and to admit to probate said alleged will as the will of the deceased.</p> <p>Thomas W. Morrow was a farmer residing at the time of his death, September 21, 1885, in Carrol township, Perry county, and was about seventy years of age. On Monday, September 14,1885, he was engaged in drilling wheat on his farm when his drill broke and he determined he would go to Landisburg to have it repaired. Before starting he went to his room, remained there awhile, and when he came out remarked that he was “ not feeling well, hardly fit to go,” but would go any way. On the road to Landisburg he became sick, and when he reached the town he went to his son Joseph’s house, went to bed, and on the following Thursday was taken to his own home in a buggy, put to bed, where he remained, growing worse, until he died the following Monday.</p> <p>On October 12, 1885, letters of administration were granted to Thomas and Robert Morrow and, some weeks after, the paper offered for probate as his will was found behind the clock, upon the shelf of which the decedent kept his writing materials. It also appeared in the testimony that for several months before his death, Mr. Morrow had determined upon the exact disposition of his estate found to have been made in his will; and that upon his death bed he had called Joseph to him and informed him how “ things yere to be.”</p> <p>Upon the hearing before the register, the latter refused to admit the alleged will to probate and to vacate the letters of administration granted, whereupon the proponent appealed to the Orphans’ Court.</p> <p>The appeal was dismissed by the Orphans’ Court, Charles A. Barnett, P. J., in the following opinion :</p> <p>Thomas W. Morrow died at home on or about the 21st of September, 1885. Letters of administration upon his estate were granted on the 12th October, 1885, to Thomas Morrow and Robert Morrow, two of his sons. On the 25th November, 1885, Joseph Morrow, another son, presented his petition to the register, setting forth that he had, since administration granted, come into possession of a testamentary writing which he believed, to be the last will and testament of said Thomas W. Morrow, and praying for the appointment of a day when he might produce said will and proof of its execution, that the same might be admitted to probate; and that a rule might be granted upon said administrators to show cause why this should not be done, and their letters of administration vacated and surrendered.</p> <p>A day was appointed, and the testimony of witnesses taken to show the due execution of the instrument offered for probate, but the register refused the offer on the grounds that it was a conditional or contingent will, and the contingency not having happened,, the instrument became void as a will. From this decision of the register the said Joseph Morrow has appealed to this court.</p> <p>A true and correct copy of said instrument is as follows:</p> <p>I am.going to town with my drill and i aint feeling good and in case if i shouldend get back do as i say on this paper tomey and robert is to pay they last payment one this place Samuel nows his payments Joseph you are to have that land and town property and pay Magy $3.00 dollars $1.00 dollar a year without interest tomy Miten is to have his colt fore fredum.</p> <p>tomy and robert is to settle up and make sail and devide the money equil amung my five boys this i write down .and sign to my will.</p> <p>Tho W. Morjrow.</p> <p>We have been referred by the able and zealous counsel of the proponent to the following authorities:</p> <p>Jarman on Wills, 5 Amer. ed., Vol. I, page 28. It is there said, “ A will may be made so as to take effect only on a contingency, and if the contingency does not happen the will ought not to be admitted to probate.” In note 2, there are cited several examples of contingent wills, among others the following : A pers'on intending to go to Ireland made'his will in these words: “If I die before my return from my journey to Ireland, I direct,” etc. The testator went to Ireland, returned to England, and died some years afterwards. It was held by Lord Hardwicke that the will was contingent, depending upon the event of the testator returning to England or not. As he did return the will could have no effect, but was void: Parsons v. Lanoe, 1 Vesey Sr. 190. The will of a mariner commencing, “ Instructions to be followed if I die at sea or abroad,” is conditional: Lindsay v. Lindsay, L. R. 2 Prob. & Div. 459. In Kentucky a will saying, “ If I never get back home I leave you everything I have in the world,” was held to be contingent; Maxwell v. Maxwell, 3 Metc. 101. In Damon v. Damon, 8 Allen 192, the will began: “In the name of God, Amen! I, J. W. D., being about to go to Cuba, and knowing the dangers of voyages, do hereby make this my last will and testament,” etc. “ First. If by casualty or otherwise I should lose my life during this voyage, I give and- bequeath to my wife A,” etc. He then went on to. give other specific devises. He returned from Cuba and died two or three years afterwards. The will was admitted to probate, but it was held to be conditional as to the first clause. On the other hand, in Tarver v. Tarver, 9 Pet. 174, the will began: “In the name of God, Amen! Being about to travel a considerable distance, and knowing the uncertainty of life, think it advisable to make some disposition of my estate, do make this my last will and testament.” Mr. Justice Thompson said: “ And it is contended that the condition upon which this instrument was to take effect as a will, was his dying on the journey and not returning home again. But such is a very strained construction of the will and by no means warranted. It is no condition, but only assigning the reason why he made his wiil at that time. But the instrument taking effect as a will is not made, at all, to depend upon the event of his return or not from his journey. There is no color, therefore, for annulling this will on the ground that it was conditional.”</p> <p>Walbem on Wills, page 257: The author says: “Papers propounded as .wills are frequently contingent or conditional in form, and difficulty is sometimes experienced in determining whether or not, in the events that have happened, the will is to take effect. The question turns upon the point whether the contingency is referred to as the occasion of making the will, or as the condition upon which the instrument is to become operative.” “Where the will is made dependent on a condition precedent, it cannot be upheld as a will unless the condition is performed. Thus, where the deceased, a master mariner, whilst on a voyage, wrote with his own hand a will which commenced: — ‘ This is the last will and testament of me, in case anything should happen to me during the remainder of the voyage from hence to Sicily and back to London, that I give and bequeath,’ etc. The court held that the dispositions of the will were dependent on^the event referred to at the beginning of it, and that it had therefore only a contingent operation and probate was refused,” and refers to In the Goods of Robinson, L. R. 2 Prob. 171, and other cases cited in the note. “ On the other hand a will in these words : I, W. M., being physically weak in health, have obtained permission to cease from all duty for a few days, and I wish during such time to be removed from the brig Appelina to the floating hospital ship Berwick Walls, in order to recruit my health, and in the event of my death occurring during such time, I do hereby will and bequeath,” etc., was held not to be conditional. And a will commencing with the words: “In case of any fatal accident happening to me, being about to travel by railway, I hereby leave,” etc., was held not to be contingent on the testator’s death on that journey.</p> <p>3 Phill. 397, Strauss v. Schmidt, is to the effect that a conditional will may be established by subsequent recognition.</p> <p>4 Swab. & Trist. 36 ; In the Goods of George Thorne, deceased. The deceased died in London in September, 1864, leaving a paper writing dated at the Gold Coast of Africa, on 2d November, 1863, containing inter alia as follows : “ Be this known to all concerned: I request that in the event of my death while serving in this horrid climate, or any accident happening to me, I leave and bequeath to my beloved wife,” etc. “ I consider that every person should be prepared for the worst, and particularly in such a treacherous climate as this, which is considered one of the worst in the world, which has compelled me to write this letter.” It was held not necessary to limit its operation to the event of death while on the Gold Coast.</p> <p>2 Bradf. 204: In ex parte Lindsay; the will contained:— “ According to my present intention, should anything happen me before I reach my friends in St. Louis, I wish to make a correct disposal,” etc. The testatrix went to St. Louis, returned to New York, and died there more than a year after the date of the will. The will was admitted to probate, the surrogate saying: “ There is another question necessary to be determined in tins class of cases, and that is, whether the words clearly express a contingency upon which the instrument is to take effect, or whether they may fairly be interpreted as indicating the cause or occasion of making the will; whether, in the language of Sir John Nicholl, “ it is an absolute condition, or dependent upon any particular motive operating at the time.” The surrogate cites the following cases: In Burton v. Collingwood, 4 Hagg. 176, the will began: “March 5, 1814. Morning, near one. All men are mortal, and no one knows how soon his life may be required of him. Lest I should die before the next sun, I make this my last will and testament,” etc. Eighteen years afterwards the will was held not to be contingent, and was admitted to probate. In Forbes v. Gordon, 8 Phill. 625, the words : — “ In case of my inability to make a regular codicil to my will, I desire the following to be taken as a codicil,” etc., were held not to be conditional. In Bateman v. Ponnington, 3 Moore P. G. C. 223, the instrument was written in ink, but dated and signed in pencil, with the addition: “In case of accident, I sign this will.” The testator died more than three months afterwards, and the will was admitted to probate. In the Goods of Ward, 4 Hagg. 179, the paper propounded contained the expression: “I mention these matters thus particularly, to serve as a memorandum for you, in case it should be the Lord’s will to call me hence by any fatal event in the voyage or journey before us.” The paper was rejected, but the testator had made a subsequent altered will. In Sinclair v. Hone, 6 Ves. 608, the contingency expressed in a codicil was: “ In case I die before I join my beloved wife; ” it was held to be contingent, and defeated by failure of the condition.</p> <p>3 Bradf. 366, in Thompson v. Conner, the testator, Charles Stephenson bequeathed to his cousin, Margaret Baxter, three hundred dollars; “ this gift and bequest being subject to the following condition, viz.: that the said Margaret Baxter shall produce from the officers of the ship in which I shall sail on my next cruise, satisfactory evidence of my decease during the same.” His will was admitted to pAbate, the surrogate saying : “ Doubtless, the possibility of death during the contemplated cruise was considered, and led to the incorporation of the condition in the will; but then the,condition refers primarily to evidence, or in other words, he does not give only upon condition he should die during that voyage, but that certain specified proof of his death shall be produced.” The foregoing eases illustrate very fully the difference between the contingency which furnishes the occasion or motive, and is given as the reason for making the will at that particular time, and the contingency upon which the instrument is to take effect; the contingency which must happen before the instrument becomes a will at all. It is the certainty of death and the uncertainty of the time thereof that leads to the making of a will. The undertaking of a perilous journey, or the probable exposure to more than usual accidents, may furnish the occasion for making a will at a particular time; but although the time of making has been hastened by the apprehension of danger, the testator does not consider the instrument inoperative, or regard any further disposition necessary merely because the danger has been survived. When, however, the ordinary uncertainties of" human life have not been carefully provided against, and circumstances may now postpone the opportunity for doing so, a crude instrument of testamentary character is sometimes made to bridge over the chasm, and become operative only upon some designated contingency, which shall prevent the execution of a maturely considered will. It is objected by his administrators against the writing left by Thomas W. Morrow, that it belongs to this latter class; that it is a contingent will, and the contingency not having happened, that the will is void. They rely upon the case of Todd’s Will, 2 W. & S. 145. And it was upon the authority of that case that the register refused admission to probate. The will of George Todd began as follows: “ My wish, desire and intention now is, that if I should not return (which I will, no preventing Providence) what I own shall be divided as follows,” etc. C. J. Gibson refers to the cases of Parsons v. Lanoe, and Sinclair v. Hone, supra, in which the wills were held to be contingent. “ But,” he says, “ an intention to make the operation of the paper eventual, is not near so apparent in either of these cases as it is in the one under '‘consideration; ” and the sentence of the court below refusing probate was affirmed. In the case at bar we think the will illustrates both sorts of contingency; that which urged to the present making of the instrument, and that upon which the instrument itself was to take effect. “ I am going to town with my drill and I aint feeling good,” was the contingency suggesting the propriety of making the will. “ And in case if I shouldend get back, do as I say on this paper,” contains the contingency upon which the will should become operative. It is very clear that the will is not presently operative. He does not say: “I hereby give and bequeath; ” there is no immediate gift. He does not say absolutely, “ do as I say on this paper ; ” some time at least must elapse after his departure for town, before any such duty is imposed. The command is provisional: “if I shouldend get hack do as I say on this paper.” It is plain, that his failure to return, is the condition precedent required before the instrument can become effectual. If it was ineffectual until there was a failure to return, and if there was no such failure, it is also plain it never became effectual; that it was a contingent will, and became void by the non-happening of the contingency.</p> <p>In Todd’s Will, the expression is, “ if I should not return, what I own shall be divided as follows.” In Morrow’s Will the expression is, “ if I shouldend get back do as I say on this paper.” If I should not return, and if I shouldend get back, are forms of expression so plainly equivalent, that we are unable to see any distinction or difference between them. Notwithstanding the able argument of proponent’s counsel, we are of opinion that the register’s decision was right in principle, and obedient to the authority of Todd’s Will, and must therefore be affirmed. And now, 4th November, 1886, the decision of the register is affirmed.</p> <p>Thereupon the proponent took the present appeal and assigned for error the affirmation of the register’s decree refusing to vacate the letters granted and to admit the alleged will to probate.</p>

<p>No. 356 January Term 1887, Sup. Ct.; court below, No. 405 September Term, 1886.</p> <p>In an action of debt by tbe commonwealth, for use of Annie Collins, against Thomas Grimes and Simon P. Whited, .upon the bond of Grimes (with Whited as surety) as a petitioner for the benefit of the insolvent laws, on November 22, 1886, the jury found the facts fully appearing in the opinion of this court and proceeded:</p> <p>We also find that the amount presently due, as per calculation attached as part of our finding, is $163.39, besides the Supreme Court costs, $17.00, and that $165.75 will in the future fall due in quarterly payments of $9.75, according to the original sentence.</p> <p>But that we are ignorant in point of law on which side we ought, on these facts, to find the issue. That if upon the whole matter the court should be of opinion that the issue is proven for the plaintiff, we find for the commonwealth the sum of $500, plaintiff accordingly, and assess the damages at $180.89, as presently due, and $169.75 as falling due in quarterly payments of $9.75, the first quarter of which falls due 20th January, 1887; but if the court are of an opposite opinion, then vice versa.</p> <p>Subsequently the court, W. J. Baer, P. J.J entered judgment upon the verdict in favor of the defendants, whereupon the plaintiff took this writ, assigning the entry of judgment for the defendants as error.</p>

No. 328 January Term 1887, Sup. Ct.; Court below, No. January Term 1887. Mr. Joshua R. Serfass, a resident of Easton, graduated at Lafayette College, studied law and was admitted to the bar of Northampton county in 1881. His principal business after his admission was conveyancing, making searches against real estate, placing money on loans and making collections.

<p>Nos. 180, 181, 182, January Term 1887, Sup. Ct.; Court below, No. 58 September Term 1884, No. 32 Mareli Term 1885, No. 80 March Term 1883, C. P. No. 4.‘ No. 127 January Term 1887, Sup. Ct.; No. 258 September Term 1882, C. P. No. 2.</p> <p>These cases below were several actions on the case by Joshua W. Lippincott and Eliza G. Lippincott, his wife, in right of said wife, The Church of the Covenant in the city of Philadelphia, Ellen Y. Sterner, administratrix of Edward Y. Sterner, and George W. Hunter, brought against the Pennsylvania Railroad company — the first three, in the order of the title hereof, in the Court of Common Pleas No. 4, and the last one in the Court of Common Pleas No. 2, to recover damages for injuries to real estate. They were tried separately, but near the same time, and in this court they were argued together.</p> <p>The declarations set forth the ownership of plaintiffs, respectively, of properties situate on the north side of Filbert street, in Philadelphia, and charged injuries by the defendant company in the building and construction of its viaduct or elevated roadway along the south side of said street to reach its terminal station on Broad street, the placing thereon of its tracks, works and other improvements, and the use and operation of said railroad with locomotives, engines and cars upon said structure, causing the properties to become greatly depreciated in value.</p> <p>The roadway is erected upon substantial brick arches on property owned by the défendant company in fee, and the properties of the plaintiffs are separated from the viaduct by the whole width of Filbert street, fifijr-one feet wide. There was evidence in one case, that there were eight tracks in front of the plaintiff’s house, and that as many as fourteen hundred and forty trains daily, or about an average of one a minute, passed. Seventeenth, and Filbert streets, where a record was kept. Much evidence was given to show the dust, smoke, noise, sparks, etc., caused by the operation of the railroad.</p> <p>The first three cases were tried before Willson, J.; the fourth before Fell, J.</p> <p>The following points were submitted by the defendant company in each of the cases:</p> <p>1. The defendant, under its charter and supplements in evidence, had full lawful authority to erect and operate the Filbert street extension or branch described in the declaration, without incurring any liability by reason thereof for consequential damages to the property of the plaintiff; the uncontradicted evidence being that none of the said property was taken by the defendant, but that the entire width of Filbert street intervenes between the railroad of the defendant and the nearest point thereto of the property of the plaintiff.</p> <p>2. The defendant, as purchaser of the main line of the public works of this state, under the acts of assembly and deed in evidence, had full lawful authority to erect and operate the said Filbert street extension or branch, without incurring any liability to the plaintiff for alleged consequential damages to his property; the uncontradicted evidence being that none of the said property was taken by the defendant, but that the entire width of Filbert street intervenes between the railroad of the defendant and the nearest point thereto of the property of the plaintiff.</p> <p>8. The contracts contained in the charter of the defendant and the supplements thereto in evidence, as well as the contract contained in the acts of assembly and deed for the main line, already mentioned, authorized the defendant to construct said extension or branch with liability for property taken only; and no subsequent legislation by this state can impair the obligation of those contracts, or either of them, by increasing the price of the exercise of the franchises granted, by imposing an obligation to pay for property alleged to be injured, but not alleged to have been taken.</p> <p>4. The property of the plaintiff being separated from the railroad of the defendant by the entire width of Filbert street, a public highway of the city of Philadelphia of the width of fifty-one feet, there is no liability on the part of the defendant for alleged consequential damages to said property.</p> <p>5. The uncontradicted evidence being that the property of the plaintiff is situated on the north side of Filbert street, a public highway of the city of Philadelphia, on the opposite side from the railroad of the defendant, which does not occupy any part of said street opposite the property of the plaintiff, and is erected wholly on its own property, being a distance of fifty-one feet therefrom, and there being no evidence that any of the property of the plaintiff was taken, injured or destroyed by the construction of the said Filbert street extension or branch, the verdict must be for the defendant.</p> <p>6. The plaintiff’s property being situated in a thickly built portion of the city of Philadelphia and upon the opposite side of a frequented public highway, the defendant is not responsible for the consequences to the plaintiff’s property of the proper and careful operation of its road.</p> <p>7. Under all the evidence, the verdict should be for the defendant.</p> <p>In The Church of the Covenant and Sterner cases, the following additional points were submitted:</p> <p>8. The defendant, under the constitution of 1874, is not liable to the plaintiff in damages for injury to his property occasioned by the lawful and careful operation of its railroad. The liability of a corporation for injury to property not actually taken or destroyed by the corporation, extends only to the damage directly occasioned by the construction or enlargement of its works, and does not include a liability for the subsequent operation of the road in a careful manner. The jury will therefore not consider, in estimating the damages, if any, any convenience to the plaintiff or loss suffered by him in the lower value of his property in consequence of the dust, smoke, cinders, sparks, noise or other things arising or being caused by the ordinary careful operation of the defendant’s railroad.</p> <p>9. The defendant, being authorized by law to construct and operate its railroad opposite the property of the plaintiff, is not liable to the plaintiff for damages to his property occasioned by such construction and operation unless the road was constructed and has been operated in such a negligent way as to be a nuisance. There being no evidence that the road was constructed and is operated in such a manner, there is no liability in damages in the present case, and the verdict must be for the defendant.</p> <p>10. The injury, if any, for which the plaintiff must be compensated, must be one which arises from the construction of the defendant’s road as distinguished from its subsequent use or operation.</p> <p>11. The proper and reasonable operation of the defendant’s road by virtue of its franchise, although it may have occasioned a depreciation in value of the plaintiff’s property, is not an injury for which any damages can be recovered within the meaning of the eighth section of the sixteenth article of the constitution of the state.</p> <p>12. There is no evidence that the property of the plaintiff was injured by the construction of the defendant’s railway within the meaning of the eighth section, article sixteenth, of the constitution of the state, and hence the verdict must be for the defendant.</p> <p>These points were denied, and the jury was charged in each case, substantially, that “ the legal measure of the plaintiff’s damages, if the property has been injured, is this: The difference between the market value of the whole property before the railroad was built and its market value after the structure was completed.”</p> <p>Verdicts were rendered in favor of Mrs. Lippincott for $4,235, of The Church of the Covenant for $19,333.33, of Mrs. Sterner for $2,633.50, of Mr. Hunter for $3,500, and judgments being entered, the defendant company took these writs and assigned for error the refusal to affirm the said points.</p>

<p>No. 429 January Term 1887, Sup. Ct.; Court below, No. 1 December Term 1885, C. P., in equity.</p> <p>In the court below on October 27,1885, a bill in equity was filed by C. N. Barrett and others, taxpayers of the borough of Port Allegany, McKean county, against Thomas McDowell et al., members of the Town Council, the Chief Burgess and the Tax Collector of said borough; the prayer of which bill was for a preliminary and thereafter a permanent injunction against the defendants to restrain the collection of a water tax.</p> <p>The bill averred: That on July 20, 1885, a special election was held in said borough under the provisions of the act of April 16, 1875, P. L. 55, and its supplement of May 1, 1876, P. L. 93, upon the subject of a water tax. The electors intended to vote concerning a water tax only, and voted written or printed tickets having on the outside the words, “ Water Tax,” and on the inside, “For a Water Tax,” or “Against a Water Tax.” The election was returned in favor of a water-tax, and the defendants proceeded to lay and collect a special tax for water purposes only. It was claimed, that the levy and collection of said tax was illegal, as unauthorized by the said act of 1875, under the provisions of which the electors must vote for and the defendants must levy and collect a tax subject to use for gas or water, and that the amendatory act of 1876 was unconstitutional.</p> <p>The answer admitted that the electors voted and intended to vote concerning a water tax only, and that the tax was levied for water purposes only.</p> <p>On the hearing of the motion for a preliminary injunction, Wm. D. Brown, P. J., holding special term, after reviewing the facts, held:</p> <p>We think the language of the act of 1875 is so ambiguous that when considered in connection with the subject-matter, it leaves abundant room for construction, and we think we do no violence to the rules of interpretation, but rather adhere thereto, when we hold that the disjunctive “or” should be substituted for the conjunctive “ and ” where the latter occurs in the words, “Gas and Water Tax.” By so holding, we think a sense appears that is consistent with the other parts of the act, and one that accords with what seems to us, the clear legislative intent, namely, to permit the legal voters to authorize .a special tax for both water and gas purposes, or for either, as their necessities or convenience may require. But if the claim of the plaintiffs is correct, the voters if they would have the one must also have the other, because the act provides that the money so raised and collected shall be expended for such fire plugs, hydrants, etc., as may be required to supply such boroughs with a sufficient supply of water for the extinguishment of fires, cleaning streets, and with gas for properly lighting and illuminating the streets.</p> <p>We regard the act of 1876, P. L. 98, as simply declaratory of the law as it existed under the provisions of the act of 1875, and hence we give no opinion as to whether it is or is not in conformity with the provisions of the sixth section of article third of the constitution of the state.</p> <p>The application for a preliminary injunction is refused.</p> <p>Thereupon the complainants took this appeal and assigned for error the refusal of the preliminary injunction.</p>

<p>No. 109 July Term 1886, Sup. Ct.</p> <p>This “cause was an appeal by Dr. Franklin Hinkle, from the decree of the court below upon exceptions filed to the report of an auditor in the matter of the estate of John M. Whitehill, deceased, and directing the said Dr. Franklin Hinkle to give security for the use of Frank Whitehill Hinkle and others.</p> <p>John M. Whitehill died in 1866. By his will, dated Feb. 22, 1866, he directed that his estate should be divided into three equal shares. One share he gave to his daughter Jane Redsecker. One half of one other share he gave to his son James C. Whitehill; the other half of this share (1) he directed to be retained by his executor during the life of J ames C. White-hill, the interest to be paid to him during his life, and after his death the principal to be paid to his children. The other third or share (2) he directed to be retained by his executor during the life of his daughter Anna M. Hinkle, wife of Dr. Franklin Hinkle, the interest to be paid to her during her life, the principal at her death to be paid to such person or persons and in such manner as by her last will and testament she should limit and appoint to receive the same, and in case of failure of such appointment, to any child or children whom she might leave ; and in ease she left no children and did not exercise the power of appointment, this share to be distributed as he had directed for the first two shares.</p> <p>By the report of the auditor in the estate of John M. White-, hill, made in the year 1869, it appeared that James C. White-hill had conveyed all his interest in his father’s estate to Anna M. Hinkle; and the sum of $2,735.59 was directed to be retained by the executor as the half of the share or third, the interest of which by the will was to be paid to J. C. Whitehill during his life, the interest on this fund to be paid to Anna M. Hinkle during the life of J. C. Whitehill; and $5,450.20, another share or third, was set apart to be retained by the executor for the use of Anna M. Hinkle, as directed by the will.</p> <p>A. N. Cassel, the executor of the will, resigned and C. E. Graybill was appointed trustee in his place.</p> <p>Anna M. Hinkle died on November 24, 1884, without leaving any issue, but leaving to survive her a husband, Dr. Franklin Hinkle. She made a will dated April 9, 1881, the material portions of which are as follows:</p> <p>Item. I give, devise and bequeath to my brother, James C. Whitehill, M. D., all his share and interest in the estate of our deceased father as devised to him by our said father and not already received, and by him transferred and assigned to me, to have and to hold the same or the interest, income and increase thereof during his life, subject however to the payment of a premium on a life insurance policy on his life to the amount of three thousand ($8,000) in the Mutual Life Insurance Company of New York, which I now hold as trustee for the benefit of his three children (Lizzie, now Mrs. Stranahan, Anna Whitehill and Frank Whitehill Hinkle) at his death, and also first subject to the repayment to my estate of such sum or sums of money as I may.have overpaid as premiums on said life insurance policy more than I have received, as interest on the said share of my brother, the said Dr. James C. Whitehill. After the decease of my said brother, I give, devise and bequeath the said share of the said estate of my father, transferred to me by my said brother, the said Dr. James C. Whitehill, to his said three children, viz.: Lizzie, now Mrs. Stranahan, Anna Whitehill, and Frank Whitehill Hinkle.</p> <p>Item......</p> <p>Item. All the rest, residue and remainder of my estate, whether real, personal or mixed, of which I shall die possessed, or to which I shall be entitled at my decease and over which I have any power of control or disposition under the will of my deceased father or otherwise, I give, devise and bequeath to my beloved husband, Franklin Hinkle, M. D., to have and to hold the said estate with the rents, issues and profits thereof during his life, for his own use and profit and enjoyment as he may see fit, giving my said husband full power to sell or dispose of the same during his life as he may desire, hereby giving him full power to convey the same or any part thereof, and make good and sufficient title and conveyances therefor during his life. Pie first to give our said adopted son, Frank White-hill Hinkle, means to start in professional business, as he, my said husband, may think proper. And subject also to the payment to our said adopted son, Frank Whitehill Hinkle, of the sum of one hundred dollars each year until such time as our said adopted son shall be in business and able to support himself. And subject also to the payment to Anna Whitehill, of the sum of fifty dollars each and every year, so long as said Anna Whitehill, my niece, shall be and remain single and unmarried, the said payment to cease immediately upon the marriage- of my said niece.</p> <p>Item. All my estate, whether real, personal or mixed, remaining after the death of my said husband, I give, devise and bequeath to my nephew and adopted son, said Frank Whitehill Hinkle, his heirs and assigns forever, subject, however, to the payment to my said niece, Anna Whitehill, of the sum of one thousand dollars. And also subject to the payment to each of my nieces, Anna Mary Redsecker, and Belle Redsecker, of the sum of five hundred dollars.</p> <p>And, lastly, I do make, constitute and appoint my beloved husband, Franklin Hinkle, M. D., to be the executor of this, my last will and testament......</p> <p>After Mrs. Hinkle’s death, C. E. Graybill filed his account, showing a balance in his hands of $7,554.49, of which he set forth that the sum of $5,407.43 represented the share of John M. Whitehill’s estate set apart for the use of Anna M. Hinkle, and that $2,147.06 represented the half of a share to be invested during the lifetime of J. C. Whitehill. This latter sum had been reduced by the payment of $500 to Franklin White-hill Hinkle, one of the children of J. C. Whitehill, in 1884, by the consent of all parties concerned.</p> <p>To this account exceptions were filed, involving the commissions charged by the trustee, and the division of the fund in his hands between the trusts above set forth (1), (2); and Mr. Wm. Augustus Atlee was appointed auditor to pass upon the exceptions and report a distribution.</p> <p>The auditor re-adjusted the account, and found a sum for distribution of $7,741.07, which he distributed as follows: To Dr. Franklin Hinkle, interest due at Mrs. Anna M. Hinkle’s death, $395.73, and as legatee of Mrs. Hinkle, $5,208.78; to children of James C. Whitehill, $2,136.56; to Lizzie' Stranahan, $878.85; to Anna Whitehill, $878.85, and to Franklin Whitehill Hinkle, $378.86.</p> <p>To this report James C. Whitehill, Franklin Whitehill Hinkle, Anna Whitehill and Lizzie Stranahan excepted:</p> <p>6. As the legacy to Dr. Franklin Hinkle under the will of Anna M. Hinkle is for life, and at his death to others, he should be required to give security as provided-by § 49 of the act of February 24, 1834, P. L. 82.3</p> <p>To the same report Dr. Franklin Hinkle excepted:</p> <p>2. The auditor erred in awarding any money to Lizzie Stranahan, Anna Whitehill and Franklin Whitehill Hinkle.1</p> <p>3. The auditor erred in awarding $878.85 to Lizzie Stranahan, in awarding $878.85 to Anna Whitehill and $378.86 to Franklin Whitehill Hinkle.3</p> <p>On argument of the exceptions the court, D. W. Patterson, J., filed the following opinion and decree:</p> <p>We have read the report of the auditor, and in view of the circumstances of this fund, and the facts as shown by the testimony, we are of the opinion that in the main the conclusions of the learned auditor are correct.</p> <p>The limitation of thé bequest to Dr. F. Hinkle, by the will of his wife, Anna M. Hinkle, leads us to qualify the awarding of the legacy to the legatee. The 6th exception we must sustain. Said exception is: “As the legacy to Dr. F. Hinkle under the will of Anna M. Hinkle is for life, and at his death to others, he should be required to give security, as required by sec. 49 of the act of February 24,1834, P. L. 82.” That section of said act provides that “ Whenever personal property is bequeathed to any person for life, or for a term of years, or for any other limited period, or upon a condition or contingency, the executor of such will shall not be compelled to payor deliver the property so bequeathed to the person so entitled, until security be given, in the Orphans’ Court having jurisdiction of his accounts, in such sum and form as, in the judgment of such court, shall sufficiently secure the interest of the person entitled in remainder, whenever the same shall accrue or vest in possession.” The act of 17th May, 1871, P. L. 269, also requires the executor or administrator, or trustee or trustees, to deliver such property to the life tenant, upon the entry of satisfactory security by the latter.</p> <p>The award of $5,208.78 legacy to Dr. F. Hinkle will be retained by the trustee until security be given in the Orphans’ Court by Dr. F. Hinkle, in such sum and form as in the judgment of said court will sufficiently secure the interests of the person or persons entitled in remainder.</p> <p>The first, second, third, fourth, fifth and seventh exceptions filed by the four persons above named are dismissed.</p> <p>We can see no error, as alleged in the three exceptions filed for Dr. F. Hinkle, and they are therefore not sustained.</p> <p>The exceptions filed are all dismissed, except the sixth, which is sustained; and it is ordered that the trustee, C. E. Graybill, retain the legacy awarded to Dr. F. Hinkle until he gives security in the Orphans’ Court, to be approved by said court, in the sum of ten thousand four hundred dollars ($10,400), to the commonwealth of Penn’a for the use of the several persons in remainder [naming them], and with change so made the auditor’s report is absolutely confirmed.4</p> <p>Whereupon Dr. Franklin Hinkle took this appeal and assigned for error:</p> <p>1. The dismissal of appellant’s exception.1</p> <p>2. The dismissal of appellant’s exception.3</p> <p>8. The sustaining of appellee’s exception.3</p> <p>4. The making of the decree.4</p> <p>5. The not ordering the payment of the legacy of $5,208.78 to Dr. Franklin Hinkle without security and without conditions.</p>

<p>No. 273 January Term 1887, Sup. Ct.</p> <p>The proceedings in the Orphans’ Court below were in the matter of exceptions to the report of an auditor making distribution of the balance shown by the account of the executors of Martin Ringwalt deceased, filed February 13, 1886.</p> <p>Martin Ringwalt, of Lancaster county, died March 1,1884, leaving a will dated January 29,1884. The will was admitted to probate and David Ringwalt, one of the executors thereof, having declined, letters were issued to Dr. Levi Z. Ringwalt, the other executor, who, on his account being filed, was found to have a balance for distribution of $15,608.37. Exceptions were filed to this account and an auditor was appointed to determine them and report distribution.</p> <p>The disposing parts of said will are here given:</p> <p>First After all my lawful debts are paid and discharged the-residue of my estate both real and personal. I give and bequeath as follows to wit: The Farm I Live on. and the, Property I Bought from the Executor of my Brother Levi Ests, I give to my Brother David Ring wait and my Nephew Dr Levi Z Ring wait at One Hundred and Twenty-five dollars per acre ($125.00.) if they dont want the Land at that price it is to be Sold. The Wood Land I own in the Forrest, they can have at (Twenty dollars per Acre) The wood land on the Mountain is to be Sold. The property John Thomas (collerd) lives on he is to pay (Fifteen dollars) a year rent and at the death of him and his wife, it is to go back to the heirs of Martin Ringwalt. I give and Bequeath to my House Keeper Sarah Cooper ($200.00) besides the note She holds against me for ($1000.00) and three years Interest on it.- I give and Bequeath the Interest of ($200.00) at five per cent to keep my Grave and Brothers wife’s in repair for the German (Reform Grave Yard in New Holland) it is to remain in the property as a Lienn forever, At my death the Note I hold against (Cyrus Stroman) he is to pay no Interest on. Just the principal. None of my Money is to go back further than My Brothers and Sisters Children. Except the ($200.00) I left to Sarah Cooper. My Nephew William Smith is to have $500.00 More than the rest of My Neices and Nephews.</p> <p>And as to all the rest, residue and remainder of my Estate, real, personal or mixed, of whatever nature or kind, or wheresoever situate at the time of my decease, I do hereby give, devise and bequeath.</p> <p>It was contended before the auditor, Mr. Benjamin F. Davis, that the testator intended that his estate “ should be distributed equally among the testator’s nephews and nieces except William Smith, who was to have $500 more than the rest of them ”; but the auditor found, that, excepting the special bequests or devises in the.will of the deceased, his estate should be distributed, as if under the intestate laws, to and among his brother David, or his legal representatives, and his nephews and nieces. He therefore reported a distribution of said balance, after payment of the legacies, including that of $500 to William Smith, in six shares.among the thirteen nephews and nieces per stirpes.</p> <p>To the report of the auditor exceptions were filed, and upon argument the court, J. B. Livingston, P. J., delivered the following opinion:</p> <p>We are of opinion that the learned auditor has erred in his construction of the will of Martin Ringwalt, deceased, and in his distribution of the balance in the hands of the accountant.</p> <p>Martin Ringwalt did not intend to die intestate, as to any portion of his estate, or that his estate should be distributed under or in accordance with-the intestate laws of this commonwealth ; and he so declares in the will he made. He says, “ after all my lawful debts are paid and discharged, the residue of my estate, both real and personal, I give and bequeath, as follows, to wit: ”</p> <p>He then devises certain real estate to his brother David Ringwalt (who was then alive, and his only living brother), and his nephew, Dr. Levi Z. Ringwalt, both of whom he constituted his executors. Having thus provided for his brother, and, after making some specific bequests, he says:</p> <p>None of my money is to go back further than my brothers and sisters children, except the $200 I left to Sarah Cooper. My nephew, Wm. Smith, is to have $500 more than the rest of my nieces and nephews.</p> <p>Now, while this will is inartistically drawn and by no means so clear ■ or explicit as it might have been made, it clearly shows that his intention was that after deducting the specific legacies he had given, his estate was to be divided among and distributed to his nephews and nieces, as a class. And that, after giving to his nephew, William Smith, first, out of the sum for distribution, $500, so that he might have, as the testator desired, so much more than the rest, the remainder was to be divided equally among his nephews and nieces.</p> <p>[The court here made a distribution, after deducting the legacies, including the $500 to William Smith, equally among all the thirteen nephews and nieces per capita.]</p> <p>We, therefore, thus correct the report by substituting the distribution thus made, for the distribution reported by the auditor, and with this correction, dismiss the exceptions, and confirm the report.</p> <p>Thereupon David Dunlap, the only child of a deceased sister, took this appeal and assigned for error the refusal of the court to confirm the distribution by the auditor and the distribution of the balance among the nephews and nieces per capita.</p>

<p>No. 43 July Term 1887, Sup. Ct.</p> <p>This cause in the court below originated in the distribution by an auditor of the balance in the hands of the administrators of Amos S. Henderson, deceased, who died insolvent.</p> <p>Mrs. Anne Franklin died in 1858. By a codicil to her will she directed her executors to retain three thousand dollars of her estate, in trust, to pay the annual interest and income thereof to her two daughters, Anne E. and Elizabeth R., during their lives, and to the survivor of them during her life, and after the death of the survivor, to divide the same among her surviving children and the issue of any then dead.</p> <p>At the time of Mrs. Franklin’s ■ death her two daughters were unmarried. Subsequently, in 1861, Anne married Amos S. Henderson, and her sister Elizabeth, after that, lived with her. After Anne’s marriage, the $3,000 of trust money was invested in U. S. 7-30 Treasury notes, which were subsequently delivered by the executors to Mrs. Henderson and her sister Elizabeth, who gave the following receipt:</p> <p>Received Lancaster, May 1, 1865, from the executors of the will of Anne Franklin, deceased, three $1,000 7 3-10 Treasury notes, which they invested under the provisions of said will, and the interest of which is to be retained by us, the bonds to be returned to the said executors by the survivor of us as directed by said will.</p> <p>Anne E. Henderson,</p> <p>Elizabeth R. Franklin.</p> <p>After giving the above receipt, Elizabeth R. Franklin died in 1865. In August, 1881, Mrs. Henderson and her husband gave the executors another paper which after reciting the above receipt proceeded as follows:</p> <p>And whereas Elizabeth R. Franklin is now deceased, and the investment of the three thousand dollars in 7-30 Treasury notes has been changed; now we the said Anne E. Henderson and her husband Amos S. Henderson, acknowledge that we have in our hands the sum of three thousand dollars, the interest on which is to be retained by said Anne during her life, and the principal sum upon her decease is to be returned to the said executor, to be distributed according to the will of Anne Franklin, deceased.</p> <p>Witness our hands this fifth day of August, a. d. 1881.</p> <p>Anne E. Henderson,</p> <p>Amos S. Henderson.</p> <p>Amos S. Henderson died on the 13th of January, A. d. 1885, intestate and insolvent.</p> <p>Anne E. Henderson died in June, 1885, leaving a will, by which, after bequeathing sums of money and specific articles to divers persons, she gave the remainder of her estate to Mrs. Clara A. Franklin, and appointed George Nauman, Esq., the executor thereof. After her death the trust fund could not be found. She left an estate which was clearly shown to have been derived from another source ; the whole amount for distribution having come from a policy of life insurance.</p> <p>Upon the distribution of Mrs. Henderson’s estate in the Orphans’ Court of Dauphin county, George M. Franklin, administrator d. b. n. e. t. a. of Anne Franklin, deceased, claimed before the auditor the sum of $3,000, being the trust funds that came into her hands in May, 1865. The auditor allowed the claim, but upon exceptions to his report, the Orphans’ Court of Dauphin county awarded the whole residuum of the estate to the residuary legatee. On appeal to the Supreme Court it was held that the facts revealed a wrongful conversion of the trust fund by Mrs. Henderson and that she was liable therefor in damages, and that therefore the appellant was entitled to recover; and the decree of the court below was reversed: Franklin’s Appeal, 18 W. N. C. 245.</p> <p>George Nauman, Esq., executor of the will of Mrs. Henderson, then paid the said sum of $3,000 to the administrator d. b. n. o. t. a. of the estate of Anne Franklin, deceased, and now claims to recover as a creditor of the estate of Amos S. Henderson, a dividend on the said sum of $3,000.</p> <p>This claim was opposed by Dr. B. Leaman, and other creditors, and the auditor in making a distribution of the estate of Mr. Henderson, having found the foregoing facts, proceeded with reference to the claim of Mr. Nauman, executor of Mrs. Henderson, as follows:</p> <p>Mr. Nauman, in further support of his claim, called William Henderson, who testified:</p> <p>I am the son of Amos S. Henderson, deceased; two or three days before my father died he asked me if we had plenty of currency at the bank, and if we had to bring him three thousand dollars. I asked him what it was for. He said I would find in the safe his note to my mother for that amount. I didn’t find the note, nor bring the money. He said it was to pay that note. Nothing ever was paid to her.</p> <p>Under the evidence submitted in support of the claim, the auditor was constrained to find the fact that the relation of debtor and creditor did not exist between Mr. Henderson and his wife in reference to this claim. All the evidence submitted to your auditor except the declaration or statement of Mr. Henderson to his son William was before the Supreme Court in another proceeding: Franklin’s App., 18 W. N. 245. There the court held that Mrs. Henderson was guilty of a wrongful" conversion of the trust fund, and held her estate liable in the sum of $8,000 damages. Also that “there is nothing in the case showing that she committed the tort by coercion of her husband.” Assuming therefore that Mrs. Henderson had this $3,000 at the time she converted the trust securities, is there sufficient evidence in the statement of Mr. Henderson, two days before he died, to his son, to show that he ever received this money and owed it to his wife?</p> <p>Before Mr. Nauman as executor can recover this claim, he must prove his right as a creditor with as much certainty and clearness as the wife of Mr. Henderson would have to prove her right as a creditor against her deceased husband’s estate, if living. Mr. Nauman as executor is her representative. The principal evidence here is a verbal statement or admission made by Mr. Henderson only two or three days before he died. 1 Greenl. Ev. § 200, says: “Such admissions should be received with great caution. The evidence, consisting as it does in mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens that the witness by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party really did say. But where the admission is deliberately made and precisely identified, the evidence it affords is often of the most satisfactory nature.”</p> <p>There is nothing in Mr. Henderson’s admission tending to show a liability except in the part in which he says, “.it was to pay that note.” The note was not found. Mr. Henderson said it was in the safe. It was not there. There is no evidence that any such' note ever was made. The verbal admission before us is insufficient to justify the inference. If the note had been found, we might have known what the note was given for, when, and all about it. The note not being found where Mr. Henderson says it was, shows conclusively that he was mistaken in the most material part of his admission or statement. To ascertain the full effect of a verbal admission, the whole, that is, every part of that admission, must be considered together. One part may be favorable and another part unfavorable, and both parts in direct contradiction. of each other. There is no evidence to show what money Mr. Henderson ever borrowed from his wife, if he ever borrowed any at all. Though Mr. Henderson was unfortunate in business, he was always respected as an intelligent and good citizen, one who was familiar with customs and manner of doing business.</p> <p>In Hause v. Grilger, 52 Penn. St. 412, Justice Agnew in his opinion said: “ It is necessary for the peace of families and the protection of estates that one standing in the confidential relation of wife should prove her right as a creditor with clearness.” “ When there is a balancing question as to whether the money alleged to have been lent by the wife to her husband came from her means or his, it is not error in the court to take the question from the jury.”</p> <p>If, on the other hand, the facts were found that Mr. Henderson and his wife converted these trust securities, and he used the money, there could be no recovery, for the reason that there is no contribution between tort-feasors: The North Penn. R. Co. v. Mahoney, 57 Penn. St. 187.</p> <p>This claim is therefore disallowed.</p> <p>To this report of the auditor exceptions were filed by various claimants, including Mr. Nauman, as executor of Mrs. Henderson. The court, D. W. Patterson, J., overruled all the exceptions and confirmed the report, whereupon Mr. Nauman took this appeal.</p>

No. 210 January Term 1887, Sup. Ct. j court below;, No. 22 December Term 1886, C. P. In an action brought before a justice of the peace by James Woodring against the Lehigh Valley R. Co., to recover wages earned, on October 18, 1886, the justice gave judgment for the plaintiff, when the defendant appealed.

<p>No. 236 January Term 1887, Sup. Ct.; court below, No.— October Term, 1886, C. P.</p> <p>On November 15, 1886, Jacob Folkenson presented to the court below Ms petition setting forth that he was the owner of property abutting on Northampton street, in the borough of Easton ; that in the year 1871, during the time of. such ownership, the authorities of said borough changed the grade of said street, thereby causing Mm great damage ; that he had endeavored to agree with the authorities of said borough on the compensation for the damage so done, but had failed to so agree, and that due notice of his intended application had been given; praying for the appointment of five viewers to determine the damages sustained by him, etc.</p> <p>To this petition the borough demurred and assigned for cause that it was not sufficient in law, inasmuch as it is shown by said petition that the injury complained of by reason of the change of grade was inflicted in the year 1871, and the proceedings were therefore barred by the statute of limitations.</p> <p>The court, H. J. Reeder, J., dismissed the petition and sustained • the demurrer for the reasons given in an opinion filed in the case of Beck v. The Borough óf Bethlehem, which is reported in 2 Pa. C. C. R., 511. Thereupon the petitioner took this writ and specified that the court erred in sustaining the defendant’s demurrer that the statute of limitations was a bar to the proceeding, and in dismissing the petition.</p>

<p>No. 260 January Term 1887, Sup. Ct.; court below, No. 54 June Term 1884, C. P.</p> <p>From a judgment in favor of Jacob L. Grim against Dr. Martin L. Yost before a justice of the peace, the defendant took an appeal. The cause was put at issue sec. reg. under the plea of nil debet, and the plea of the statute of limitations was added subsequently.</p> <p>On the trial October 28, 1886, before W. W. Schuyler, P. J., it was shown that in April 1873, Grim, the plaintiff, who was a miller, had a settlement with Dr. Yost, the .defendant, of an account for horse-feed furnished. At this settlement, Dr. Yost informed Grim that he had gone into the lumber business with his brother-in-law Moritz; that Yost & Moritz also would get their feed from Grim, who should charge the whole to the individual account of Dr. Yost, but with the items that went to Yost & Moritz marked so as to identify them. This was done. Grim got some lumber from Yost & Moritz, and Dr. Yost, as before, got his horse-feed from Grim which was charged iu his individual account, running from May 10, 1873 to April 9, 1877. Yost & Moritz also got feed from Grim, which under said arrangement was charged to Dr. Yost’s account, but marked after each item, “Yost & Moritz.”</p> <p>On May 22, 1878, Grim met Dr. Yost for a settlement with an itemized statement of his account, and, after deducting the lumber bill of Yost & Moritz against Grim, the balance was $129.39 in Grim’s favor. Át this time Dr. Yost gave Grim his check for $54.92. Grim, the plaintiff, testified on direct examination :</p> <p>Q. What did he say then? A. Well, he didn’t say anything then, he wanted to know what goods he personally got for himself and I told him I could not tell him exactly what except these lower items for the seed wheat and for the seed rye, etc., and then we looked over it awhile and I told him this bill is made out Jan. 1, 1887 until here, and then he figured out and then “Well,” says he, “I and Mr. Moritz are two, we are not friends together, we don’t speak together and I don’t get along with Mr. Moritz and now I’ll give you a check and then you go to Mr. Moritz and get some out of Mr. Moritz,” and I told him I couldn’t go to Mr. Moritz because I didn’t have it charged to him in my ledger that way; that I had charged him, Dr. Yost, with it, and he said they were not on good terms and they would not speak and I should go and see him and collect it out of him, and I told him I would do so provided I could, and the next time I saw Dr. Yost I told him that I couldn’t collect anything and I wouldn’t do it that way.</p> <p>Q. Did you go and see Mr. Moritz? A. I did...... Q. Did you see Dr. Yost again after that before you brought suit? A. Yes, I saw him again and again. Q. When you saw him what did you do ? A. I told him, “ Doctor, I ought to have money.” Q. What did he say? A. He said, “You have to go to Moritz and try and get some out of Moritz.” Q. Did he tell you that several times ? A. Yes, and at last I met him in Bethlehem, driving along in his carriage, and I said to him, “ Doctor if you don’t pay that bill, I am going to bring suit, I don’t let it run out of law, it’s now near time,” and then he told me I shouldn’t bring suit, that I should put it to a justice of the peace and then they would come together, lie and Moritz, and then I took it to Charley Mauch, the justice of the peace, and Dr. Yost was notified.</p> <p>On cross-examination the plaintiff testified:</p> <p>Q. Why was it that the check was given for $54.92 and not for just $54.00. A. Why, he wanted to know what he got individually and I told him I couldn’t tell on this bill, that I hadn’t the books with me, that if I had the books with me I could tell — but here is the marks yet that were made with my pencil, and I said “I know that this hundred you got out on the farm private where the lead pencil mark is,” and then he figured up a little and says he, “ I’ll give you my check now for $54.92, and I and Moritz are not on speaking terms and you try and collect that from him.”</p> <p>Q. You say that after some figuring and talking (to find out what Yost got himself you came to this amount of $54.92, and after that he gave you a cheek for that amount-. A. Yes, he figured out and told me that he would give me a cheek for that amount. Q. Was that the amount you and he made out that he had got individually ? A. No, I told him I couldn’t tell the amount he got. Q. You say you marked some there ? A. Only this here — but this don’t count up to that figure — he wanted to know and I could not tell. Q. You tried to ascertain that? A. Yes. Q. And after figuring and trying to ascertain that he came to the conclusion that that was the amount and he gave you a check for that amount. A. He gave me a check for $54.92. Q. That was to be for his individual account as you understood it at that time ? A. No, sir.</p> <p>The defendant, Dr. Yost, called in his own behalf, denied the testimony of the plaintiff as to what occurred at the giving of the check, and testified that the check was given for his own part of the bill, in which testimony he was corroborated by his wife, Mrs. Julia Yost.</p> <p>The following points were presented by the defendant with the answers thereto:</p> <p>1. Under all the evidence the verdict must be for the defendant.</p> <p>Answer. I can not affirm this point.1</p> <p>2. If the jury believe the testimony of Mrs. Yost, the verdict must be for the defendant.</p> <p>Answer. This point I affirm. If you believe the testimony of Mrs. Yost as to what took place at the time the check for $54.92 was given, then your verdict must be for the defendant.</p> <p>3. The claim of the plaintiff, on its face, is barred by the statute of limitations, and unless the defendant within six years from the time suit was brought, clearly, distinctly and unequivocally acknowledged the whole debt to be due, the verdict must be for the defendant.</p> <p>Answer. This point I affirm with this qualification, that the acknowledgment need not be express, that is, he need not say so in so many words — “ I acknowledge this debt to be due.” Payment on account is a constructive acknowledgment, and if you are satisfied that this money was paid on account of the balance for which the present suit was brought, and if you can say that without any hesitation from all the evidence in the case, then that would be such a sufficient acknowledgment as would take this claim out of the statute. But if you have any hesitation you must give the benefit of your doubt to the defendant. .</p> <p>The court charged the jury in part:</p> <p>You will see from these authorities, gentlemen, that the acknowledgment relied upon by the plaintiff to take this claim out of the statute of limitations must have been made by the defendant, and that the evidence that he intended to acknowledge the existence of the debt in suit, must be so clear and so distinct and so full, that in considering it it will leave you without any hesitation or doubt upon the subject.</p> <p>[Now take the evidence as given by Jacob L. Grim himself and consider whether that, assuming it to be true, would justify you in finding that the defendant did acknowledge the existence of the debt. Mr. Grim testifies upon that subject as follows: (Reads from direct and cross-examination of J. L. Grim.) Now this is the account given by the phiintiff himself, and is the only evidence, so far as I remember, bearing upon what took place at Dr. Yost’s office at the time the check for $54.92 was given; the only evidence given by the plaintiff bearing upon what took place at that time.</p> <p>Throwing for the present out of the case all the other evidence, can you say, from what Mr. Grim says, that this giving of the check for $54.92 was such a clear and distinct aeknowledgment on the part of the defendant that the whole bill that was presented at that time was his individual bill. Was his evidence upon that point so clear and distinct that you can say without hesitation that the defendant, by the payment of the $54.92, intended to acknowledge his liability for the full amount of the bill?]3 In this connection you are also to take into consideration the evidence with reference to what took place, before any of these goods were furnished, between the plaintiff and the defendant.</p> <p>Mr. Grim says on that subject: (Reads.) You will see from this that the account made out against Dr. Yost, and which is in suit here, is made up of flour and feed furnished-, in the first place, to Dr. Yost himself individually, and, in the second place, to the firm of Yost & Moritz; and, in weighing and sifting the testimony of Mr. Grim as bearing upon this point, you will also take that into consideration, and will say whether or not this evidence satisfies you beyond hesitation, that when Dr. Yost gave the check for the $54.92, he intended to clearly and distinctly acknowledge his liability for the whole bill. This is the situation of the case so far as the testimony of Mr. Grim is concerned. But that is not all the testimony in the case. If you find that this was a distinct and unequivocal acknowledgment on the part of Dr. Yost from the testimony of Mr. Grim, then your next inquiry will be whether this testimony of Mr. Grim is true, and you will consider that question without any reference whatever to the effect that your decision may have upon either the credibility or character of Mr. Grim, or of Mr. Yost and his wife. You are to take the evidence as it has been delivered to you, and without reference to consequences you are to determine what is true and what is not true.</p> <p>' Now, Dr. Yost testifies, in a general way, that this $54.92 was not paid on account. He alleges — that is the theory of the defence, that it was paid in discharge of his full individual indebtedness to the plaintiff, and that it was not paid on account at all; but that it was paid in full of his individual indebtedness, leaving the balance of the account as the claim of the plaintiff against .the firm of Yost & Moritz; and you will in this connection also take into consideration the testimony of Mrs. Yost, who says that when this claim was presented by Mr. Grim, Dr. Yosfc said : “ Why, I did not get all this flour and feed individually,” and that as a result of this remark she went and got a piece of paper and that there was then put down upon this piece of paper the items that had been received by Dr. Yost individually, and that this check was given in payment of that amount which footed up, as she testifies, $54.92. If you believe the testimony of Dr. Yost, and the testimony of his wife as bearing upon this part of the case, your verdict would have to be for the defendant, be the consequences to the plaintiff what they may......</p> <p>[If you are satisfied that this was a firm debt to begin with, .and that Dr. Yost agreed on May 22, 1878, that the bill was right, acknowledged his liability for it, then your verdict would be in favor of the plaintiff, provided the evidence is .such as satisfies you beyond hesitation that such was the .fact.] 3</p> <p>The jury found in favor of the plaintiff for $112.06, after-wards reduced by a remittitur to $51.58, whereupon the defendant took this writ, specifying as error:</p> <p>1. The refusal of defendant’s point.1</p> <p>2. The submission to the jury of the question of law as to. whether the evidence of the plaintiff alone was sufficient, if true, to take the case out of the statute of limitations, in that part of the charge in [ ] 3</p> <p>3. In charging the jury as in [ ] 3</p>

<p>Nos. 281 and 315 January Term, 1887, Sup. Ct.; court below No. 1 February Term, 1884, C. P. in Equity.</p> <p>In tbe court below Charles Bródhead, administrator of Catharine Shimer, deceased, filed a bill in equity against Stephen D. Heller, to recover the dower and arrears of dower due the said decedent out of a tract of land owned by the said defendant, wherein it was claimed the paid deceased was dowable from April 30, 1866, to May 9, 1881. The cause was heard by Mr. Robert I. Jones, as examiner and master, who found the following facts:</p> <p>Conrad Shimer died in Hanover township on April 30,1866, intestate, leaving a widow, Catharine, and three children, Samuel C., Asher D. and Camilla M., who is the wife of Charles Bródhead, the plaintiff in the bill. No letters of administration were taken out, and his estate, real and personal, was amicably divided among his children. In this division Samuel C. Shimer received from Asher D. Shimer and wife and Charles Brodhead and wife their deed of conveyance for six parcels of land, late of the decedent, one of them a tract of seventy-eight acres and seventy-eight perches in Hanover and Bethlehem townships.</p> <p>On December 10, 1866, the three children executed an agreement reciting: “ Whereas Samuel C. Shimer, Asher D. Shimer and Camilla M. Brodhead, children and heirs at law of Conrad Shimer, deceased, have this day apportioned the real estate of said decedent among themselves; and, whereas Catharine Shimer, widow of said decedent has not made any claim for any dower out of said real estate; now, the parties above named hereby agree with each other that so long as said Catharine shall make no claim for dower they will each of them pay annually to the said Catharine during life as follows: The said Samuel the sum of $200 annually; the said Asher the sum of $100 annually, and the said Camilla the sum of $200 annually, the said amounts to be paid half yearly,” etc. In addition to these payments, Asher D. was to furnish the widow with certain specified articles and to permit her to enjoy certain privileges. It was further provided: “Whenever Catharine Shimer shall claim her dower at common law then these payments and privileges shall cease; but nothing herein contained and no receipt by her of any of the above mentioned payments shall be any bar to her application for such dower, but such payments shall be claimed as a credit on the amount of dower which may be claimed.” The widow did not sign this agreement.</p> <p>On April 1, 1870, Samuel C. Shimer executed a .mortgage for $6,000 upon the said tract to the Society of the United Brethren for Propagating the Gospel among the Heathen. This loan was obtained upon representations made by the mortgagor that there were no liens on the premises. He also borrowed from Jacob Crossman $5,000, and from Isaac Treible $2,000, in each case representing that there were no incumbrances upon the land. On October 11, 1879, all the real estate of Samuel C. Shimer was sold at sheriff’s sale upon a writ from the judgment of Isaac Treible, who became the purchaser of the tract mentioned for $50, subject to the mortgage of the Society of the United Brethren &c., which was a first lien. At this sale the following notice was read:</p> <p>To all bidders at the Sheriffs sale of the real estate of Samuel C. Shimer:</p> <p>Take notice that I, Catherine Shimer, widow of Conrad Shimer, deceased, am entitled to and shall claim my statutory dower and thirds of such widow in the lands and tenements late of the said Conrad Shimer, deceased, and now about to be sold as the property of the said Samuel C. Shimer. That I have received no part of the said dower and thirds and claim the same from the time of my late husband’s death to the time of payment thereof, and with interest thereon according to law.</p> <p>(Signed)</p> <p>Catherine Shimbk.</p> <p>On December 4, 1879, Isaac Treible and wife conveyed the said tract to Stephen D. Heller, the defendant in the bill, subject to said mortgage, and with general warranty. But before Mr. Heller bought he called on Mrs. Shimer relative to her claim for dower, and his testimony is the only evidence in the case as to the conversation which then took place. He asked her what her claim was and she said she wanted nothing, that he should go to Samuel, and as he made it she would be satisfied. He said he would like to buy the land, but would not like to have a lawsuit, and that he intended buying the farm Samuel had owned. She said there would be no lawsuit about it, that he should buy the farm and that her husband always said it was a good piece of property. Upon the faith of what Mrs. Shimer said, Mr. Heller bought the land from Treible.</p> <p>Afterwards, in 1880, Mr. Heller again visited Mrs. Shimer with Isaac S. Knect, who had bought another of the properties, and Jacob Gernet. Knect alone talked with Mrs. Shimer and afterwards came out and told Mr. Heller what she had said, which was in substance that she would claim no dower out of any of the land which had belonged to Samuel. Knect went to inquire as to Mr. Heller’s land as well as his own. After this, on April 3, 1880, Mr. Heller paid off the mortgage held-by the Society of the United Brethren.</p> <p>Samuel C. Shimer died insolvent. In his lifetime, he had paid to Mrs. Shimer in all not over two hundred and fifty dollars, at different times and in smaller sums than provided for in the agreement executed. Mrs. Shimer herself died on May 9, 1881, and had never made a demand on Mr. Heller for dower or for interest. Charles Brodhead took out letters of administration upon her estate July 19,1881, and on December 10,1883, filed this bill.</p> <p>The master then proceeded to find that, so far as concerned the question before him, it was not material whether Samuel C. Shimer owned other land than the seventy-eight acres and seventy-eight perches or not, because the bill sought only to have the statutory dower set apart so far as the Heller tract was concerned. The widow was no party to the agreement between the children, and under the law she had an estate in the land which could not be divested except by a conveyance or by such conduct on her part as would amount to an equitable estoppel; and under the authority of Merrill’s Appeal, 16 W. N. 491, her administrator might maintain a bill for her dower. As to the alleged estoppel by her acts and declarations, Heller had bought of Treible before he called upon her about her claim. Her statements to Knect were also after Heller had bought from Treible. Estoppel arises when an injury has been caused or at least attempted : Taggart’s App., 99 Penn. St. 631; Ayres v. Wattson, 57 Idem 363, and here both Heller and Knect had already acted, and although Heller paid off the mortgage afterward, he had already been bound to do this as he had bought subject to it, and therefore there was no estoppel.</p> <p>The answer admitted that the tract was sold at sheriff’s sale on October 11, 1879, subject to the mortgage of $6,000, and that at the time of the sale the notice heretofore quoted was read; yet it was claimed that it was the duty of the widow to demand her dower out of the proceeds of the sheriff’s sale. But, at the time of the sheriff’s sale, no dower had been apportioned and no arrearages fixed; and besides, the mortgage was then a subsisting first-fixed lien, and the land was sold subject to it, which preserved the dower: Dickinson v. Beyer, 87 Penn. St. 274; Devine’s App., 30 Idem 348; Schall’s App., 40 Idem 170. However, it was not material whether Treible and Heller had notice or not. It is no defence to an action of dower that the defendant was a bona fide purchaser without notice: 2 Scrib. Dow. 29, 168; 1 Story Eq. J., §§ 630, 631.</p> <p>Nor was it of importance that, if plaintiff should recover, distribution would be made to Samuel C. Shimer of a share of his own. debt; that is, his share of the arrearages he owed to his mother; for a decree in favor of the plaintiff would not prevent any proper defence to the distribution hereafter.</p> <p>This was a proceeding by a plaintiff administrator. Stephen D. Heller was incompetent, and so were Charles Brodhead and Camilla, his wife, Samuel C. Shimer, Asher D. Shimer and his wife: Tintsman v. Croushore, 104 Penn. St. 193. The declarations, made by Samuel C. Shimer to parties from whom he borrowed money, were clearly inadmissible to affect the question in this controversy.</p> <p>A number of farmers were examined as to' the value of the farm per acre, and as to the amount in value of the improvements put upon it by Heller. From the testimony as to the value of the yearly products, and the custom in the township to rent on shares, it was found that the landlord’s yearly share of the rents, issues and profits would amount to $400 as the average yield, giving to the widow $133.33 each year% There was no evidence taken as to the yearly value of the other properties that Samuel C. Shimer took under his deed, and there was nothing to enable the master to divide the money paid by him as dower among the six pieces of property. The master therefore allowed the arrearages at the above rate from the death of Conrad Shimer, giving credit for the entire $250 paid in money by Samuel, as though paid on account of the arrearages due upon the Heller land.</p> <p>The widow made no demand upon Heller .for the payment of her dower. She lived, after the sheriff’s sale on October 11, 1879, until May 9, 1881, without instituting suit, and there seems to be no authority for the allowance of interest: Scrib. Dow., 2d ed., 738* ; Paul’s Exrs. v. Paul, 36 Penn. St. 270.</p> <p>Thereupon the master recommended a decree that the defendant pay to the' plaintiff the sum of $1,749.95 (being $133.33 annually from April 30, 1866, to May 9, 1881, fifteen years, less $250 paid his mother by Samuel C. Shimer), as the one third of the rents, issues and profits of the tract of seventy-eight acres and seventy-eight perches, wherein the said Mrs. Catharine Shimer was dowable, with costs. To this report, exceptions were filed by Stephen D. Heller, the defendant, that the master erred:</p> <p>1. In holding “ so far as concerns the question before the master it is not material whether Samuel owned other land than the seventy-eight acres and seventy-eight perches or not, because the bill only seeks to have the statutory dower set apart so far as the Heller tract is concerned.” 1</p> <p>2. In holding “ The widow was no party to the agreement between the children.” He should have found that she accepted under the agreement and had her living under it, until Samuel was sold out by the sheriff.3</p> <p>3. In holding that Catharine Shimer was not estopped by reason of her declaration made to Knect on .the ground that “ both Heller and Knect had already acted, and although Heller paid for the mortgage afterwards he had already agreed to do this because he bought subject to it.” He should have held that Heller was not bound to pay the mortgage, and would have declined to pay it, had he not relied on Mrs. Shimer’s statement, communicated to him by Knect, that she would claim no dower in any of the lands that had belonged to Samuel.3</p> <p>4. In holding “ in the present case the $6,000 mortgage was prior to all other liens at the time of the sheriff’s sale, and the land was sold subject to it. This preserved the dower under the authorities in Pennsylvania.” He should have held that the arrearages of the dower were discharged by the sheriff’s sale and the widow should have ruled the money into court and taken her distribution. 4</p> <p>5. In holding that it was of no importance that in case the plaintiff recovered, distribution would be made to Samuel C. Shimer of his share in his own debt. 5</p> <p>6. In holding that “ the declarations of Samuel C. Shimer to parties from whom he borrowed money are clearly inadmissible, to affect the question arising in this controversy.” He should have held that Samuel’s mother had always referred all inquirers about dower to Samuel, that she had record notice that Samuel had encumbered the farm with a $6,000 mortgage, and was bound by all that Samuel said about the dower. 6</p> <p>T. In finding that the rents, issues and profits of the Heller farm amounted to $400 per year, giving the widow $133.33 each year. If there were any dower chargeable it would be a proportionate share of $200 per annum for the six tracts, and then it would begin to run only from the time that Heller bought the land and had the yearly income, or from the time that Mrs. Shimer abandoned her claim under the agreement and made her claim against the land. ?</p> <p>8. In not dismissing the bill at the costs of the plaintiff. 8</p> <p>9. In not finding that Samuel C. Shimer’s children are in equity estopped from recovering in this suit, moneys which their father was bound to pay.9</p> <p>10. In deciding that Samuel C. Shimer was not a competent witness on the call of the défendant.10</p> <p>Exceptions were filed by Charles Brodhead, the plaintiff, that the master erred:</p> <p>1. In finding as a fact that one third of the rents, issues and profits annually of the said tract of land of seventy-eight acres and seventy-eight perches amounts to the sum of $138.33, whereas the weight of the testimony is that the said tract of land is worth upwards of $12,000, and the widow’s annual interest based on this valuation is nearly $240.1</p> <p>2. In not allowing interest on the sum found due the plaintiff from the time of the death of Catharine Shimer.8</p> <p>3. In deducting from the amount found to be due the plaintiff the sum of $250, the entire amount paid by Samuel C. Shimer on account of the dower in his real estate, because the said sum was paid on account of the dower in all of -the six tracts of land received by the said Samuel, whereas the dower now to be recovered is the widow’s interest in only one of the said tracts. 3</p> <p>The exceptions, were all overruled by the master and upon their renewal, they were dismissed by the court, W. W. Schuyler, P. J., and the report confirmed, without opinion. Thereupon the defendant appealed to tins court, assigning for error:</p> <p>1-10. The dismissal of his several exceptions,1-10</p> <p>The plaintiff also appealed, assigning for error:</p> <p>1-3. The dismissal of his several exceptions,1-3</p>

<p>No. 314 January Term 1885, Sup. Ct.; court below, No. 440 October Term 1878.</p> <p>Louis D. Beck died in Philadelphia on July 24, 1878, a widower and without issue, leaving a number of nephews and nieces. By his will duly admitted to probate and letters testamentary issued thereon, after giving certain legacies including a bequest to John George Ulmer, “and this not to be construed as being for executor’s commissions,” he provided as follows:</p> <p>After the payment of all the foregoing legacies or bequests, and other expenses of carrying out the provisions of this, my will, and settling my estate, considering those to my relatives as being liberal, I do hereby give and grant unto my executor, hereinafter named, full and unlimited power and authority to appropriate or dispose of all the rest, residue and remainder of my estate, real and personal, or the proceeds arising from the sale thereof, to such objects, persons or institutions as in his discretion shall be best and proper, as I have full confidence in his judgment, ability and integrity in the premises.1</p> <p>Lastly, I nominate, constitute and appoint John George Ulmer (hereinbefore named) sole executor of this, my last will and testament, hereby giving and granting unto him as such, and his executors or administrators, full power and authority to sell and dispose of all my estate, both real and personal, either at public or private sale, as to him shall seem best for the interest thereof. Also to make, execute, and deliver all such deeds or other instruments, in writing or otherwise, as may be necessary, in the law, to pass a good title for the same, or otherwise, to any and all purchasers thereof, without any liability whatsoever on the part of such purchasers to see to the application of the purchase or other moneys.</p> <p>The account of John George Ulmer, the executor, showing, after the payment of debts, legacies and expenses of administration, a balance of $31,060.98 for distribution, came before .the Orphans’ Court for adjudication.</p> <p>The heirs at law, among whom was Gottleib Beck, claimed that as to this balance the decedent died intestate; that the residuary paragraph above quoted created a trust which was void for uncertainty of objects, and that said balance was properly distributable to them under the intestate laws.</p> <p>The auditing judge, Clement B. Penrose, J., ruled: That the gift was to be sustained as a general power of appointment conferred upon the executor. The will created no trust with regard to the residue, nor was there anything to indicate an intention that the objects selected should be of a charitable character. The power given was “ full and unlimited.” It was to “ appropriate or dispose ” of the residue to such persons, objects or institutions as the executor should name. The gifts to the persons, objects or institutions thus selected were direct; and when the selection was made, they would take precisely as if the testator had himself made the selection, and their names had been set forth in the will.3 “As, however, the distribution of the estate is now to be made, it is necessary that the persons, objects or institutions to be selected by the executor should be named at once. This will be done in the schedule of distribution hereinafter directed.” Thereupon a distribution was made of the said balance of $31,060.98, “which balance the executor.....appropriates and disposes of as follows, to wit: John George Ulmer, $81,060.98 (subject-to such further rises as he may hereafter by his last will and testament appoint).”3</p> <p>A decree accordingly having been entered, Gottleib Beck took this appeal, specifying that the court erred:</p> <p>1. In sustaining the paragraph1 of the will as a valid disposition of the residue of the estate.</p> <p>2. In deciding that said paragraph did not create a trust which was void for uncertainty. 3</p> <p>3. In not striking down the appointment by the executor to himself,3 as constructively fraudulent and void in law.</p> <p>4. In not awarding said residue to the next of kin.</p>

No. 356 January Term 1885, Supt. Ct.; court below, No. 77 June Term 1878, C. P. No. 4. The action in the court below was assumpsit upon the following writing: November 13, 1868. I have in my hands to the credit of John Boustead, executor of Sarah and also of James Boustead, thirty-one hundred and eight dollars payable to him as such executor, on demand with interest at six per cent, until paid. (Signed) Theo. Cuyler. The narr. contained eight counts: 1.

<p>No. 351 January Term 1886, Sup. Ct.; court below, No. 749 March Term 1885, C. P. No. 2, in Equity.</p> <p>This cause was a proceeding in the court below to determine whether or not certain real estate of The Wagner Free Institute of Science in the city of Philadelphia was exempt from taxation, and the admitted facts appear in the following .case stated:</p> <p>The plaintiff was incorporated by an act of the legislature of Pennsylvania, approved the ninth day of March, 1855, P. L. 66, for the object, as set forth in section 2 of said act, of giving gratuitous instruction in the natural sciences, such as geology, mineralogy, metallurgy, mining, botany, chemical agriculture, with their application to the arts, and other kindred sciences, to all persons conforming to the rules of the institution. A copy of this act, marked A, is 'annexed, and made part of the case stated.</p> <p>The said act of incorporation was amended by a subsequent act of the legislature, approved the thirtieth day of March, 1864, P. L. 136, § 11, whereby, inter alia, it was enacted that “ The trustees shall.....be capable, in law, of purchasing, holding, taking and conveying any estate, real, personal or mixed, for the use of said corporation, of whatsoever kind, nature or quality soever, by gifts, grants, bargains, sale, assurance, will, devise, trust or bequest, including all endowments from any person or persons capable of making the same..... that the cabinet collections and lot of ground on which it is erected, belonging to the said institution, with any gifts, bequests or endowments, so long as tlie same shall be used for free lectures, shall be exempt from taxation.” A copy of this act, marked B, is annexed, and made part of the case stated.</p> <p>The defendant, 'John Hunter, is the receiver of taxes; defendants William Loughlin, George W. Fairman and Simon Gratz compose the board of revision of taxes; defendant John P. Sensenderfer is deputy collector of delinquent taxes in the eighth ward, and defendant Charles A. Widmer is deputy collector in the twenty-ninth ward of the city of Philadelphia.</p> <p>On Monday, May 15, 1865, a course of free lectures was' begun in the institute building, which embraced chemistry, anatomy, geology, natural philosophy, physiology, mineralogy and mining. Since that time two courses of free lectures have been delivered each year, embracing most or all of the branches of natural science above named.</p> <p>William Wagner and Louisa, his wife, by deed dated the fourteenth day of March, 1866, recorded at Philadelphia in deed book L. R. B., No. 158, page 325, etc., granted and conveyed to The Wagner Free Institute of Science, as an endowment for the said corporation, all those two certain brick messuages and lot of ground, situate on the east side of Eleventh street, from the Delaware, between Walnut and George (now Sansom) streets, in the city of Philadelphia, containing in front, on Eleventh street, sixteen feet, and in-depth, eastward, one hundred feet to a twenty-feet wide alley, now Juvenal street, leading from George street into Walnut street, being now No. 107 South Eleventh street, and No. 120 Juvenal street. Also, all those two certain brick messuages and lot of ground adjoining the aforesaid lot on the south, being of the same size as the aforesaid lot, and now No. 109 South Eleventh and No. 122 Juvenal street.</p> <p>And by deed dated the fourteenth day of March, 1873, the said William Wagner and wife conveyed to the said corporation plaintiff all that certain lot of ground, situate on the south side of Montgomery street, east side of Seventeenth street, and west side of Willington street, in the twenty-ninth ward of the city of Philadelphia; containing in.front on said Montgomery street, one hundred and seventy-seven feet ten inches, and extending of that width in length, southward, along the east side of the said Seventeenth street, and west side of Willington street, one hundred and eighty-six feet.</p> <p>And the said William Wagner afterwards subdivided the said lot, and erected on the same, at his own expense, twenty-four dwelling houses, as an endowment for the corporation plaintiff, viz.:</p> <p>Five on the south side of Montgomery avenue, beginning at the westerly corner of Willington street, being now respectively Nos. 1614, 1616, 1618 and 1620 Montgomery avenue.</p> <p>Fight on the west side of Willington street, beginning at the distance of seventy-four feet south of Montgomery avenue, being now respectively Nos. 1744, 1742, 1740, 1738, 1736, 1734, 1732 and 1730 Willington street.</p> <p>Eleven on the east side of Seventeenth street, beginning at the northerly corner of Montgomery avenue, assessed in 1884 as one lot, being now respectively Nos. 1727,1729,1731,1733, 1735, 1737, 1739, 1741, 1743, 1745 and 1747 North Seventeenth street.</p> <p>The whole of the net income of the said real estate has been and is appropriated to the support of the Institute for the purposes contained in the acts of incorporation.</p> <p>The real estate above described was assessed for taxes, to be paid the city of Philadelphia, in the year 1884. From this assessment the corporation plaintiff appealed to the said defendants, Wm. Louglilin, George W. Fairman and Simon Gratz, composing the board of revision of taxes, claiming that the said property was exempt from payment of taxes, by reason of the provisions of the acts of incorporation above quoted; but the said board, on January 14, 1884, declined to grant the exemption asked for.</p> <p>After the said decision of the above-named defendants, composing the board of revision, the defendant, John Hunter, receiver of taxes of the city of Philadelphia, authorized and directed the defendants, John P. Sensenderfer and Charles A. Widmer, to collect from the plaintiff the taxes assessed against the properties named in the case stated, for the year 1884; and the defendants, John P. Sensenderfer and Charles A. Widmer, are proceeding to collect the said taxes so alleged to be due, as delinquent taxes, by distraint upon the personal property of the tenants renting and occupying, under the said plaintiff, the said several properties referred to.</p> <p>If the court shall be of the opinion that, under the provisions of the acts of assembly incorporating The Wagner Free Institute of Science, and the amendment thereto, first above quoted, the above described real estate is exempt from the payment of city taxes, 'then judgment is to be entered for the plaintiff, that no tax is due to the city of Philadelphia upon the real estate mentioned in the case stated, and an injunction to be issued restraining the defendants from taking any proceeding to collect, or filing a lien for said taxes; but if the court shall be of a contrary opinion, then judgment is to be entered for the defendant.</p> <p>Either party is to have the right to take a certificate, or appeal, from the judgment of the court.</p> <p>W. W. Montgomery,</p> <p>Geo. W. Biddle,</p> <p>Of counsel with plaintiffs.</p> <p>Chas. F. Warwick,</p> <p>Of counsel with defendants.</p> <p>By agreement the deed of trust of William Wagner and wife to the plaintiff, dated May 30, 1864, recorded in deed book L. R. B., No. 46, p. 550, was afterwards made part of the case stated as exhibit C. By this deed the grantors conveyed to the said institution “ all that certain lot or piece of ground, with the buildings and improvements thereon erected, situated at the southwest corner of .Montgomery street and Seventeenth street in %he twentieth ward of the city of Philadelphia, containing in front or breadth on the said Montgomery street one hundred and seventy-seven feet ten inches, and extending of that width in length or depth southward, two hundred and twenty-five'feet,” in trust, etc., etc.</p> <p>After argument the court entered judgment for the defendants, James T. Mitchell, J., delivering the opinion:</p> <p>The point in controversy is whether the property of the complainant, which is not part of the lecture building or scientific collections of the institute, but which is separate from them and disconnected from their occupancy and direct use, and from which the institute derives its revenue, is exempted from taxation.</p> <p>This property is not within the exemptions authorized by the language of the present constitution, or the act of 1874, passed in pursuance thereof, but the exemption is claimed by virtue of the following language in section 11 of the charter: “The cabinet collections and "lot of ground on which it is erected, belonging to the said institution, with any gifts, bequests or endowments, so long as the same shall be used for free lectures, shall be exempt from taxation.”</p> <p>This provision beiug a grant in derogation of one of the highest prerogatives of the state, must be strictly construed. The language is not that the property of the said institute is exempted, but the collection and the lot of' ground on which it is erected, with any gifts, bequests or endowments. These last are the operative words to exempt the property now in question, if it is to be exempted, and it is by no means clear that they include any “ endowments” except those which are like the cabinet collections and the building itself, in situ, and a necessary part of the machinery for the occupation and enjoyment of the franchise granted.</p> <p>The case, however, has been argued upon broader and more general grounds, and we do not desire to decide it upon a strict and possibly narrow construction of the charter itself.</p> <p>Conceding then for the present case that the property in question was exempted by its charter, two questions arise : first, could the state rescind the exemption; and secondly, has ib done so ?</p> <p>The court then proceeded to find, that under the constitutional amend.ment of 1857, and Article xvi., section 10, of the constitution of 1874, the legislature had the power to alter or revoke the charter, and that the act of May 14, 1874, P.'L. 158, under sections 1 and 2 of Article IX., of the constitution of 1874, the legislature had repealed the exemption, if any existed.</p> <p>Judgment was entered for the defendants.</p> <p>The plaintiff then took this appeal, assigning for error the entry of judgment on the case stated for the defendants.</p>

<p>No. 178 July Term 1886, Sup. Ct.; court below, 387 December Term 1884, C. P. No. 3.</p> <p>Tbe action was in assumpsit by Sarah F. Birnbaum, widow of Charles N. Birnbaum, deceased, against The Passenger Conductors’ Life Insurance Company of the United States. The declaration averred—</p> <p>In the first count: That Charles N. Birnbaum was a member of defendant company, and that defendant, for a sufficient consideration, “ did promise, agree and undertake to and with the said Charles N. Birnbaum,.....that if he, said Charles N. Birnbaum, should die, being still a member of defendant company and intestate, that then and in such case defendant should and would pay to the widow of said Charles N. Birnbaum, a certain sum of money, to wit; $3,200.”.....That Charles N. Birnbaum died intestate, a member of defendant company, and that plaintiff is his widow.</p> <p>In the. second count: That “ defendant.....did agree, promise and undertake.....to and with Charles N. Birnbaum, the then husband of plaintiff, for a sufficient consideration, that if he, said Charles N. Birnbaum, should die without having disposed by his will of the money, to wit, $3,200, which was to be paid on his death,.....then said defendant should and would pay, or ¿pause to be paid, unto the plaintiff the said $3,200, provided said Charles N. Birnbaum had fulfilled his duties as set forth in the constitution and by-laws of defendant company,” averring the fulfillment of his said duties by said Charles N.' Birnbaum, his death intestate, and that plaintiff was his widow, etc.</p> <p>In the third count: A promise the same as in the first count, and averring that Charles N. Birnbaum had fulfilled his duties, and that he had endeavored to fulfill his duties as a member of defendant company, but was prevented by the act of the defendant.</p> <p>The defendant pleaded non assumpsit to the first and second counts and demurred to the third count, and for cause showed that said third count was inconsistent with itself, alleging full performance by the decedent and then alleging matter of excuse for non-performance; also that the count avers matter of evidence, and in other respects is informal and uncertain. This demurrer was overruled,1 and the defendant then pleaded to this count, “non assumpsit.”</p> <p>On the trial the plaintiff put in evidence the constitution and by-laws of defendant, and the certificate of membership of Charles N. Birnbaum, deceased. It was admitted that the deceased was the husband of the plaintiff and died May 12, 1883. The defendant company was incorporated by act of March 14, 1871. Its secretary was then called by the plaintiff and testified that the deceased, on April 1, 1883, had been marked as a delinquent upon the company’s books upon assessment No. 117, made January 1, 1883, upon the death of R. L. Skinner. At the meeting of December 5, 1882, the secretary submitted to the board of directors the notice he had received of the death of R. L. Skinner. The proofs of death not having arrived, the board directed the chairman of the board to examine them when they should arrive, and if found correct, he, the secretary, was to make the assessment and issue notices. The proofs afterwards came, were examined by the chairman of the board of directors, who found them correct, approved them, and assessment No. 117 was made accordingly. There was no other meeting of the board until March, 1883. The plaintiff’s husband did not pay assessment No. 117, nor did he .pay two other assessments, Nos. 118 and 119, made February 1, 1883, upon the deaths of two other members. On May 12, 1883, the number of members was about 807.</p> <p>By the constitution of the defendant company its “ members shall only be conductors of passengers or mixed passenger and freight trains.” By the by-laws, it is made the duty of the board of directors “to order an assessment of two dollars per member for the benefit of the person or persons entitled to receive such assessments upon the death of any member.” And the by-laws provide further:</p> <p>When the death of a member of this company occurs, notice must be sent to the president and secretary, also a certificate from the attending physician, sworn to before a notary public, justice of the peace, or a clerk of a court of record, which must state the cause,time and place of death; also a notice of who, as representative of the decedent, is entitled to receive the benefits, giving the full name of such person, whether executor, widow or administrator. No assessment to be ordered by the board of directors, until the provisions of this section are complied with.</p> <p>Upon the receipt of the proof of- the death of a member as hereinbefore provided, the secretary shall submit said proof to the board of directors, and with their approval shall make the assessment, copies of which shall be sent to each corresponding member for the members on his road or division, and to each member not belonging to a road or division having such corresponding member.</p> <p>Each member shall, upon receipt of notice of an assessment, forward tó tbe secretary and treasurer, or pay over to corresponding member tbe sum of two (2) dollars for the benefit of the person or persons entitled to receive the same on account of the death of a member; such money to be forwarded or paid over in time to be received by the secretary and treasurer within ninety (90) days of the date said assessment has been made.</p> <p>At the expiration of ninety (90) days from the date of assessments, the secretary and treasurer shall pay over such amounts as may have been collected on such death assessments to the party or parties entitled to receive the same, and said party or parties shall receipt for the amount so received, and release the company from any further liability.</p> <p>All assessments must be received by the treasurer within ninety (90) days after notice thereof shall have been sent by the treasurer to the corresponding member of each road or division, and to each member not belonging to a road or division having such corresponding member. The corresponding member is the agent of the individual members of his road or division, and this company shall not be liable for the omission of a corresponding member to notify the individual members of his road or division of any assessment, or for his omission to remit amounts collected by him for such assessments ; and no assessment shall be considered as having been paid until actually received by the treasurer, whose receipt shall be the only evidence of such payment.</p> <p>In case the assessment due by any member shall not have been paid .by him and received by the treasurer within ninety days after notice of its assessment shall have been sent by the treasurer to the corresponding member of the road or division to which such member may belong (or in case such member does not belong to a road or division having a corresponding member, then within ninety days after notice shall have been sent by the treasurer to such member), then such person shall immediately cease to be a member of this company, and shall immediately forfeit all the rights, privileges and benefits thereof.</p> <p>The conduct or action of any officer or agent of this company shall not be construed as having waived, changed, or modified any of the provisions of this article.</p> <p>At the close of plaintiff’s case the defendant asked for a nonsuit on the ground that the plaintiff had shown no cause of action, which motion was refused. No points were submitted and the court charged the jury :</p> <p>[The evidence establishes the membership of deceased, at the time of his death. Under the constitution of defendant, thereupon it was the duty of the company to order an assessment, which it did not do. It would require an assessment of two dollars upon each member, and it is as if the assessment on plaintiff’s death had 'been made. The defence is that defendant was delinquent in not having paid assessment No. 117, heretofore made on death of Skinner, which occurred prior to January 1st, 1.888. If this January assessment had been properly made, the defence would be complete, but inasmuch as the assessment No. 117 was not made according to the constitution and by-laws, we must regard that assessment as illegal, and as if it never had been made, and the association had no right to strike plaintiff from membership. He was a member at the timle of his death, and as such had a right to recover, and your verdict should be for the plaintiff.]8</p> <p>Under this charge there was a verdict for the plaintiff for $1,802.09. A motion for anew trial and in arrest of judgment was refused, and judgment entered. Thereupon the defendant took this writ assigning error :</p> <p>1. In overruling defendant’s demurrer.1</p> <p>2. In not charging that plaintiff had failed to make out her case under the pleadings.</p> <p>3. In charging the jury that the verdict should be for the plaintiff.</p> <p>4: In that part of the charge embraced in [ ] 8</p>

<p>No. 6 January Term 1887, Sup. Ct.; court below, No. 260 September Term 1883, C. P., in equity.</p> <p>On September 17, 1873, William T. Elbert filed a bill in equity in tbe court below against Isaac Jeanes, surviving Wm. J. Morris, trading as Isaac Jeanes & Co., and the West Philadelphia Passenger Railway Company.</p> <p>.The plaintiff averred that on July 25, 1877, being the owner of one hundred shares of stock in the West Philadelphia Passenger Railway Company, he pledged the same to Isaac Jeanes & Co., as collateral security for the payment of his note of that date, at two months, for $12,000; that on August 21, 1877, said firm discounted two other notes of that date, one for $22,000 and another for $28,000, for which he pledged four hundred like shares; and on September 6, 14 and 17, 1877, three other like notes, for $12,000, $33,600 and $31,500, respectively, for which he pledged six hundred and sixty shares; that the said firm surrendered to the said railway company the certificates of stock delivered to them by him, and procured to be issued to them, in their own firm name, certificates for a like number of shares, in lieu thereof; that by reason of financial straits and difficulties the plaintiff had been unable to pay the said notes and to redeem the collateral, and the said firm had continued to hold both the notes and the collateral; that since said shares had been pledged by him, the stock of said company had sold as high as $160 per share and dividends had been declared to the amount of nineteen dollars on each share, and that crediting the said firm with the amount of the notes and interest and charging the value of the stock at $160 per share and the dividends received, there would be a balance due the plaintiff of $26,624.80, which the said firm refused either to pay or to account for to the plaintiff. The bill prayed for an account, payment , of the balance found to be due, a surrender of the plaintiff’s notes and an injunction to restrain the defendant and the railway company from transferring or permitting a transfer of said,stock pledged.</p> <p>To this bill Isaac Jeanes answered, admitting the discounting of the notes and the pledging of the eleven hundred and sixty shares as collateral, but averring that, though the firm still held the notes discounted, yet as they had not been paid, the said shares had been sold for the highest market price that could be obtained therefor, the sales having been made by the authority contained in each of the six several notes, which were of one form, appearing hereafter in the opinion. The answer further denied the receipt of any dividends on said shares, and set out the times when and the prices at which the shares had been sold, showing that the sum realized thereon was $100,132.74, and submitting that as the amount of the notes and interest, admitted to be unpaid by the bill, was $181,015.20, the plaintiff was still indebted to the respondent firm in the sum of $80,881.59, less interest on the amounts received for the shares from the time when received, “upon the payment of which or even a much smaller amount, said notes will be surrendered to the complainant.”</p> <p>The answer of the railway company defendant, admitted mo knowledge and but little information as to the facts averred in the bill, but charged that so far as the company had belief, based on knowledge or information, the plaintiff was not at any time the owner of the shares claimed by him; that said shares, with thousands of others, had been fraudulently issued by John S. Morton, at the time the company’s president, and were not genuine shares; that plaintiff had conspired with said Morton to obtain value for said shares by pledging them ; that at the time of the pledging the plaintiff was utterly insolvent and without financial credit; and further, that as moneys had been obtained from the pledgees of said shares solely upon the faith of the shares thus issued as genuine, the company by a decree in certain equity proceedings had been compelled to deliver to said Isaac Jeanes & Co., and others, like pledgees, who had proved that they had advanced their moneys bona fide upon the belief that the shares were genuine, as falsely asserted by the company’s officers and agents upon the face of the certificates, shares of stock of like amount with those which had been fraudulently issued, which decree had been fully satisfied; and further that, inasmuch as the plaintiff had not been a bona fide holder of said shares, but the coadjutor of Morton in the fraud charged, he had no right to recover moneys remaining in the hands of the co-defendant firm, but the same were payable to the railway company; to obtain a decree for payment of which the said company, after answering, filed a cross-bill.</p> <p>To this cross-bill of the railway company, Elbert answered that at the times he received and pledged the said shares he did not know and had no ground to süspect-they were fraudulent, and he had given Morton value for all of them; that he was not a party to the proceedings in equity referred to, was not called as a witness therein, and was not bound by the decree; that his pledgees received from him no authority to surrender the shares pledged and to accept other shares in lieu thereof; that he was not insolvent and without credit and had advanced money and otherwise gave credit to Morton on the faith of the shares received from Morton, and Morton was still indebted to him in an amount largely in excess of the surplus of the value of the shares pledged over the debt which they were to secure, and denied the right of the railway company to receive that surplus.</p> <p>The cause was referred to Mr. Abraham M. Beitler, as examiner and master, before whom the facts following were established:</p> <p>During the summer of 1877, Elbert, the plaintiff, borrowed from Isaac Jeanes & Co., at different dates and on different notes, of the form described in the firm’s answer to the bill, sums aggregating $134,100, and pledged as collateral security, eleven hundred and sixty shares of the capital stock of said railway company, which shares were regularly transferred to said firm upon the books of the said company. On or about September 22, 1877, whilst said notes were maturing, it was discovered that there had been a large fraudulent overissue of the stock of that company, made by John S. Morton, its president, in collusion with others of its officers; and it was charged that, as regards the shares pledged by the plaintiff to said firm, six hundred and sixty thereof were genuine and five hundred fraudulent. That these shares, were fraudulent was not known to the plaintiff nor to the firm at the time they were pledged.</p> <p>To No. 807 September term 1877, in the Court of Common Pleas No. 2, Swain et al. v. West Phil. P. R. Co., proceedings in equity were instituted to determine the status of the over-issued stock. In this suit, to which said firm was a party, but Elbert was not, it was established that Elbert had pledged to different creditors 3437 shares of said stock, of which 1161 were genuine, and 2276 were of the fraudulent overissue. These shares pledged by Elbert included the 660 genuine shares and the 500 overissued shares pledged to Isaac Jeanes & Co. There had been issued of the shares of the railway company 17,207, of which 8000 were genuine and 9207 were overissued. The master in that suit found that the value of the capital stock of the company was $1,280,000, viz.: 8000 shares at $160, and that the holders of the overissued shares were entitled to a money compensation to be measured by dividing the value of the whole capital by the whole number of shares, genuine and overissued, that is $x’i2Tj8-f$f °, say $75 per share. Before, however, the master reported, the company perfected an increase of its capital stock, inducing the holders of 7000 of the overissued shares, including Isaac Jeanes & Co. to agree thereto, and that the capital stock should consist of 15,000 valid shares, to cover 8000 of the original genuine issue and 7000 of the overissue, the loans made upon the remaining 2207 overissued shares to be paid off by the company out of its earnings. This arrangement was carried out, and the firm of Isaac Jeanes & Co., without notice to Elbert, surrendered the shares pledged by him to them, and accepted new certificates for 1160 shares upon the basis of an issue of 15,000 shares, retaining, however, all the notes of Elbert.</p> <p>The firm of Isaac Jeanes & Co., at the date of the loans and pledges, consisted of Isaac Jeanes, Walter B. Morris, Daniel G. Evans and the estate of Wm. J. Morris, who had died in March, 1887. After the discovery of the overissue and the subsequent substitution, Elbert endeavored to obtain his notes from the firm, and was willing on receipt of them to consider the business with the firm settled. On October 1, 1877, the firm was dissolved, and the 1160 shares divided among the partners at $50 per share: Isaac Jeanes receiving 666 shares, the estate of Wm. J. Morris 876 shares, Walter B. Morris 61 shares and Daniel G. Evans 57 shares. These shares so divided were subsequently sold by the several owners at different times from August 27, 1880, to June 26, 1881, the entire amount received therefor being $100,182.74. Elbert was informed of the sales by Isaac Jeanes soon after they were made.</p> <p>Upon the foregoing facts, the master found as conclusions of law that the shares of stock which the pledgees held after the decree in the equity proceedings in the Court of Common Pleas No. 2 referred to was entered, were the same in effect which they had accepted from Elbert, and that they held them under the terms of the power of sale given in the notes, and were not required to give notice to Elbert either of the validating of the stock by the decree of the court nor of the subsequent sale of the shares; and further, that the sales made of the substituted with the othet shares by the several partners were made under a lawful exercise of the power given to' the holders of the notes. The master therefore recommended that the plaintiff’s bill as well as the cross-bill by the railway company be dismissed, and that the costs in the original action wherein Elbert was plaintiff be paid by him, the costs in the cross action by the railway company, and the master’s fee, three fourths by Elbert and one fourth by the railway company.</p> <p>To the master’s report the railway company excepted in so far as they were required to pay any part of the costs. A number of exceptions were filed by Elbert, the plaintiff, certain of which were that the master erred:</p> <p>16. In finding that the power of sale in the collateral notes authorized the division of the pledge among the members of pledgee’s firm.</p> <p>18. In finding that the power of sale without notice extended to the several members of the pledgees’ firm, as to the portions of the pledge severally allotted to them.</p> <p>19. In reporting a decree dismissing the bill.</p> <p>20. In not reporting a decree for plaintiff.</p> <p>All the exceptions having been overruled in the supplemental report of the master, after argument on their renewal, the court in lane without opinion filed made the following decree:</p> <p>Plaintiff Elbert’s 16th, 18th, 19th and 20th exceptions sustained. All the other exceptions (except plaintiff Elbert’s 8th, as to which the master corrects the statement complained of in his supplemental report) are dismissed, and the cause is referred back to the master to state an account, on the basis of charging defendants with the highest market price of the stock, since the division of the pledge among the members of pledgees’ firm, and all dividends .declared thereon up to the date of such highest market price, with interest, and crediting defendants with amounts originally loaned, with interest, and to report form of decree.</p> <p>The master then heard testimony, and stated an account charging the defendants with the value of the 1160 shares of stock on February 10,1886, at $206.50 per share, being the highest market price the stock attained, with the various dividends thereon, and interest on said dividends, and crediting plaintiff’s notes due defendants with interest to said date, showing a balance due plaintiff on s£iid date $95,969.80, which with interest to July 24, 1886, the date of the decree, was $98,317.08; whereupon, after overruling exceptions to the account stated, the court made the following decree:</p> <p>This cause came on to be heard at this term, and was argued by counsel; and thereupon, upon consideration thereof, and of the master’s report, upon reference back to him to state an account, the exceptions to which are hereby dismissed, it is now, July 24, 1886, ordered, adjudged and decreed as follows, viz. That the plaintiff is entitled to recover from the defendant, Isaac Jeaiies, the sum of ninety-eight thousand three hundred and seventeen ^0-^- dollars, and that the said defendant, Isaac Jeanes, pay to the plaintiff, William T. Elbert, the said sum of ninety-eight thousand three hundred and seventeen -fife dollars, together with all costs of the cause except as hereinafter provided; and further, that the said defendant, Isaac Jeanes, surrender to the said plaintiff, William T. Elbert, his six promissory notes in his bill mentioned. And it is further ordered that the cross-bill of The West Philadelphia Passenger Railway Company be dismissed, and that the plaintiff therein, the said company, pay the costs in the matter of the cross-bill. The master’s fee to be paid, one-fourth by the said The West Philadelphia Passenger Railway Company as directed by the master, and three-fourths by defendant, Isaac Jeanes.</p> <p>Thereupon this appeal was taken bjr Isaac Jeanes, who specified that the court, inter alia, erred:</p> <p>2. In not decreeing a dismissal of the bill for want of merit.</p> <p>3. In not dismissing the bill by reason of the matter being not one cognizable by a court of equity.</p> <p>4. In decreeing payment of any sum by defendants.</p> <p>5. In decreeing that the sale of the shares of West Philadelphia Passenger Railway Company stocks by defendants was illegal.</p> <p>6. In decreeing that complainant was entitled to the highest value attained by said stock prior to the decree.</p>

<p>No. 100 January Term 1887, Sup. Ct.; court below, No. 227 September Term 1884, C. P.</p> <p>This was a scire facias to revive a judgment against A. H. Tospon, as terre-tenant, which stood on the record of the court below in favor of Mary Sipe, widow, and Jonathan J. Sipe et al., heirs at law of Jacob Sipe, deceased, against George Humbert’s executors and Joseph Humbert, terre-tenant.</p> <p>In 1861, Jacob Sipe died intestate, leaving a widow, Mary Sipe, and seven children, Jonathan J. Sipe and others, and seized of a tract of land in Milfred township containing 132 acres and 34 perches. By proceedings in partition begun in February, 1861, it was so proceeded in that the land was sold by trustees to Henry J. Humbert, an account settled and confirmed, the dower of the widow fixed at $361.69, and the share of each of the seven children therein at the widow’s death at $51.67. Henry J. Humbert died in 1864, but before his death he had contracted to sell said tract to George Humbert, providing in the contract that a residue of purchase money, $361.69, was to remain a lien on the land, the interest to be paid annually to the widow of Jacob Sipe, deceased, and the principal at her death to Jacob Sipe’s heirs. In 1865 by proceedings in the Orphans’ Court upon the petition of George Humbert this contract was proved, a decree of specific performance made, and a deed ordered. In the deed, dated May 4, 1865, made by the administrator of Henry J. Humbert in pursuance of said order, the proceedings are recited, and that George Humbert bought said land subject to said dower of $361.69, the interest payable to the widow annually and the principal to said heirs at her death. This deed was recorded. George Humbert, February 9, 1865, executed a judgment note to the widow and heirs of Jacob Sipe, deceased, for $361.69, the interest and principal payable as provided in said contract and afterwards recited in said deed, on which note judgment was confessed and entered. This judgment was revived in 1870 against George Humbert; in 1865 against M. A. Sanner and P. J. Baker, his executors, and Joseph Humbert, terretenant, and to No. 446 August term, 1879, was again revived against said executors and terre-tenant, for $432.57, $361.69 payable as aforesaid, and $70.68 presently, being arrears of' interest due the widow. A jft. fa. was soon afterwards issued for said arrears of interest, the said tract of land levied upon, at November term, 1879, condemned, and on April 25, 1872, on a vend. ex. to No. 65 April term, 1882, sold to A. H. Tospon for $390. At the death of George Humbert, another and subsequent dower principal of $500 was placed on the land. Two yearly payments of interest to Mrs. Sipe were made by Tospon after bis purchase.</p> <p>On August 24,1884, the scire facias in which this suit arose was issued to revive judgment No. 446 August term 1879, with notice to A. H. Tospon, terre-tenant. Tospon, on November 15, 1884, pleaded payment, with leave to give evidence in support of the following special matter, to wit: That the judgment was entered to secure part of the purchase money of a tract of land which was sold to George Humbert; that the land was afterwards sold to Joseph Humbert; subsequently executions were issued on the judgment, by virtue of which the land was levied and sold by the sheriff to A. H. Tospon for $390 and deed for same acknowledged and delivered; that the lien of said judgment was thereby divested, and that Tospon had no other land bound by the lien of this judgment. Upon this plea issue was joined.</p> <p>On the trial, as evidence of the facts hereinbefore stated, the plaintiff offered in evidence the Orphans’ Court record of the “ proceedings in partition in the estate of Jacob Sipe, deceased; to be followed by showing that this dower was fixed then and sale had of this land, which was sold subject to this dower of $361.69, and that it finally became vested in this defendant.” Objected to, “ because this is a scire facias on a judgment, and we have nothing to do with the proceedings prior to the obtaining of that judgment.” Objection overruled, evidence admitted; exception.1</p> <p>The plaintiff then offered the Orphans’ Court record of the “ decree of specific performance of contract of Henry J. Humbert’s administrator. This for the purpose of showing that the land was sold and became vested in Henry J. Humbert, and this is a decree of specific performance from Henry J. Humbert to George Humbert subject to this dower. Objected to for the same reason as the first offer.” Objection overruled, evidence admitted ; exception.3</p> <p>Anthony Shoemaker, called on part of the plaintiff:</p> <p>The plaintiff’s counsel proposed to prove by this witness, and others to be called, that at the time of this sheriff’s sale to the defendant, Tospon, it was a condition of the sale, announced by the crier and by the counsel of the plaintiff, who issued the writ, that the sale was made subject to the dower of the widow Sipe and the heirs, of #361.69 as secured by a judgment of this court; and that Tospon agreed to buy on these terms, and did buy on these terms, and subsequently paid the interest to the widow for the years 1883 and 1884; and that he bought it by reason of this agreement at the time he purchased it for much less than he could have bought it for otherwise. Objected to.</p> <p>By the Court: We propose to receive this evidence, inasmuch as the question raised here can be raised on a point, and then we will have the whole question before us. Objections overruled, evidence admitted ; exception.3</p> <p>The plaintiff’s counsel proposed to ask the witness how much more he would have bid than Tospon bought it at, if it had not been for that announcement, and to show that he would have given considerably more than Tospon bought it at, if it had not been for this announcement. Objected to as incompetent. Objection overruled, question allowed; exception.4</p> <p>Under these offers there was testimony on the part of the plaintiff tending to show that at the sheriff’s sale the real estate was sold expressly to be subject to the dower of widow Sipe. On the part of the defendant testimony was adduced that no notice was given at the sale as claimed by the plaintiff; that defendant had no knowledge of the dower judgment until after the propert}1' was knocked down to him, and that under legal advice that its lien was divested he had paid the purchase money and accepted the title.</p> <p>The court, William J. Baer, P. J., charged the jury inter alia as follows:</p> <p>The plaintiff now alleges that Tospon bought this property subject to the claim of '$361.69 that was to be paid after the death of the widow of Jacob Sipe and the interest thereon annually during her life; and having bought subject to that, that the judgment, so far as the principal sum was concerned, was not extinguished but remained and could be enforced, so far as to collect the interest that might accrue from time to time in the future ; and inasmuch as that judgment would lose its lien in five years, they claim they have a right to issue a scire facias to revive the lien on the premises. There is no question that ordinarily to issue an execution on a judgment and sell the land bound by it, is a divesture of all liens. There are, however, some exceptions; it depends on the order in which the liens stand. Sometimes there is a fixed lien that is not discharged, and then there is a kind of statutory dower that is an estate, and so on. [The question here is, how did this man buy?</p> <p>We charge you that if you find from the evidence in the case, that the defendant, at the time he bought at the sheriff’s sale, bought the land subject to the payment of $361.69 payable at the death of the widow of Jacob Sipe, to the heirs of Jacob Sipe, deceased, and interest thereon annually to the widow of Jacob Sipe during her natural life; and also find that the judgment then existing is a Tien on the land against the defendant in the execution in favor of the said widow and heirs of Jacob Sipe, deceased, conditioned for the payment of this $361.69 to the heirs of Sipe at the death of the widow and the interest thereon annually during her life to the widow; and further find that the execution issued upon that judgment for the unpaid arrears of interest due the widow on the judgment upon which, in due course, the premises so bound by the judgment were sold to the present defendant, then the principal sum named in the judgment was not divested, and, as to it, the judgment was not discharged, but continued to be a lien on the premises in the hands of this purchaser, Tospon, and would so continue to be a lien for five years from the date of the entry of the judgment; and if you find that the five years had not expired at the time this scire facias issued, then the plaintiff could proceed on the judgment to enforce the payment of the interest in arrears while so kept alive as a lien ] 5</p> <p>[From this, the question, as we view it, turns on this — Did Tospon buy subject to this lien or not; had he notice that he was buying subject to an encumbrance of this kind? It does not turn on whether he assented to it, but on whether there was notice given at the time that it was sold subject to such a lien, and whether Tospon was there and had notice of it.] 6</p> <p>We are asked to charge you upon certain points.</p> <p>Defendant’s points:</p> <p>1. That the sale of the property to Tospon having been made upon an execution issued upon the judgment on which the scire facias in this case was issued, said sale operated as an extinguishment of th.3 lien of the judgment and discharged the land from all liability thereon by the purchaser.</p> <p>Answer: As a general principle the law raised in this point is correctly stated ; but as to this case, whether it was or not extinguished depends upon how you shall find as to the question of the defendant’s having bought subject to the claim secured by this judgment.7</p> <p>2. That even if the jury believe that notice was given at the sheriff’s sale that the land was encumbered by a dower of the widow Sipe, that could not operate to make the defendant, Tospon, liable for this judgment.</p> <p>Answer: If you find the judgment was for the same thing as the statutory dower referred to in the point, we refuse the point. If you find the judgment was not for the same tiling as the so-called widow’s dower in the point, we affirm it.8</p> <p>3. That there is no evidence in this case that the defendant, Tospon, assumed to pay the judgment in suit, and therefore the verdict must be for the defendant.</p> <p>Answer: This we refuse, and leave it to you to determine from the evidence.9</p> <p>4. That even if there is any liability on the part of the defendant, Tospon, to pay the dower of the widow Sipe, such liability cannot be enforced by scire facias on this judgment.</p> <p>Answer : This we refuse.10</p> <p>5. That under all the evidence in this case the verdict must be for the defendant.</p> <p>Answer: This we refuse.11</p> <p>.Under this charge and the answers to the points, the jury found a verdict in favor of the plaintiff for the principal sum of $361.69, with interest from April 28, 1884, payable according to the terms of the judgment upon which the scire facias had issued, etc., whereupon the defendant took this writ, assigning for error :</p> <p>1-4. The admission of the plaintiff’s offers.1-4</p> <p>5. The part of the charge embraced in [ ] 6</p> <p>6. The part of the charge embraced in [ ] 6</p> <p>7-11. The refusal of the defendant’s points.7-11</p>

<p>No. 282 January Term 1887, Sup. Ct.</p> <p>Isaac Frey and Jeremiah Dierolf, executors of the will of Sarah Boyer, deceased, on April 20, 1885, brought suit against David Heydt upon the following note :</p> <p>April 1, 1880.</p> <p>One year after date I promise to pay to order of Sarah Boyer, (widow,) the sum of eight hundred and fifty dollars with five .per cent, interest, without defalcation, for value received.</p> <p>[Signed] David Heydt, (L. S.)</p> <p>David Heydt, the maker, paid interest on the note for two years, the payments being credited by indorsement. The payee died August 26, 1884, leaving a will.</p> <p>On the trial under the plea of payment with leave the defendant made the following offer:</p> <p>John Heydt, sworn:</p> <p>■ Defendant offers to show by the witness on the stand and others, that the note in suit was given by mistake and does not express the contract or understanding under which the money was received from the plaintiffs’ testatrix; that the $850 mentioned in the note were given by the testatrix, Sarah Boyer, to her daughter and her husband, the defendant, as an advancement ; with the distinct understanding and agreement at the time of the receipt of the money that the said money should never be repaid, and that it was upon this understanding that the money was received; that the note in suit was written for another purpose, but was signed by the defendant under the mistaken impression that it was a note or paper prepared in accordance with the understanding upon which he received the money; that when the attention of the testatrix was called to the fact that a mistake had been made, she said that it did not make any difference, that all parties understood what the contract was: they offer to show further that subsequently upon different occasions the testatrix said that the money was an advancement to her daughter..</p> <p>Plaintiffs object: 1st, because the contract is in writing ; 2d, because the contract is in writing, bearing date April 1, 1880, and was subsequently ratified on the 1st day of April, 1881, and on the 1st day of April, 1882, by payments on said contract, the defendant is thereby estopped; 3d, because the plaintiffs’ testatrix disposed of her estate by will; 4th, because it is not proposed to prove fraud or mistake, or that anything ■to the contract was omitted in the note at the time of its execution.</p> <p>By the court: The evidence is admitted ; exception.1</p> <p>Under the offer the witness, who was a son of defendant, testified that in April, 1880, on an occasion when his grandmother, with whom he was then, living, had given a sum of money to her son Isaac Frey, she said she would give Betsie (Mrs. David Heydt) something too, she had never given her anything yet, and witness took the money, $850, down.</p> <p>Q. Where did you take it to ? A. I took it down to my father and to her, took it to David Heydt’s. Sarah Boyer said my father should sign a note for the interest; when she needed it she would ask for it. The $850 was to be an advancement. I went down and he sent me home with it; my father sent me home. When I came back Sarah Boyer said that I did not explain the matter properly. I replied that I had. I then said, “T will take the money and put it in bank.” Sarah Boyer then said, “ You might lose it in bank.” She then further said that John Landis had once asked her for money, and he would take money at any time. I then wrote a note and laid it with the money. • That is the note. Landis did not pass along that way. I worked out every, day. I had to come home every evening. Then on Friday evening I came home again and said to Sarah Boyer, “ Now to-morrow I will take this money to bank.” Then she said, “No, to-morrow morning you take this money down again, and now you explain it to them right.” Q. Did you go down with the money ? A. Yes, sir; and then I called her and him again. I then again said to them, “ All that you shall do is to write a note for the interest, so if. she needs it she will get the interest.” He would not take it then. Then I took it in to my mother, who was her daughter. Shethen said, “ We will keep it. We never got anything yet.”</p> <p>Plaintiffs object to any declarations made by the mother of the witness^ the wife of this defendant, in the absence of the testatrix.</p> <p>By the court: The witness was the agent of Sarah Boyer in the taking of this money down to Mrs. Heydt, and any declarations that were made to the agent in relation to this money, are admitted; exception.3</p> <p>Q. Tell us specifically what- you told them when you came down with the money that second time ? A. I told mother if they would not take it they would never get a cent, and that Mrs. Boyer had so told me to tell her, to say so to Mrs. Heydt. Mrs. Heydt then said, “We will take it. I have never got anything yet.” I further said to Mr. Heydt, “You shall sign a note for the interest if Mrs. Boyer needs the interest.” The principal should never be paid back again. That day there was no note signed. About three or four weeks afterward I came home, and then Mrs. Boyer said, “Now your father signed a note for it.” I then replied, “ There was none prepared for him.” I asked her for the note and she showed it to me. Q. Was this the note she showed you? (Note in suit shown witness.) A. She showed me that note. I said, “ This is wrong. I will go down immediately.” I said, “ I will go down immediately and tell him that this is wrong.” Then Mrs. Boyer said, “ No, don’t.” I said that this would make a trouble, and she said, “ You stay here.” She said, “ If you do that he will bring the money back.” It remained that way. In 1881 he sent the interest up with me. , Then we got at each other again.. Mrs. Boyer then said when I brought this interest, that I should not bring her any interest, if she wanted interest she would ask for it. In 1882 she sent the interest with me again, and then she scolded and said I should not take the interest along with me; if she wanted it she would ask for it. So it remained until some time in July. In July she threw it up to me that she had presented my mother with $850, that they could live big now, they could eat it up. I then said there must be an end of it, and I went down to father and told him to get the money ready ; to-morrow morning I would bring the note down and take the money; I did not want this thing thrown up to me any longer. I went down next morning, brought the money back and laid it down on the table to her, and the interest also, and then I said, Now I want my note.” She then said, “ Now you put the money just where you got it; more they will never get.” Some time after that, in August, I left.</p> <p>Peter Heydt, sworn : Defendant proposed to show declarations made by the testatrix on the subject after the note was given. Plaintiffs make the same objection as to the first offer, supra. Objection overruled, evidence admitted; exception.3</p> <p>The witness, also a son of the defendant, testified under this offer that on November 21, 1881, his grandmother then at defendant’s house had scolded witness’s mother: that his father came in and made a remark which' offended his grandmother.</p> <p>Q. Say what was said about the note or about the money? A. Then it began and she said, “ You will go down to Shrawder and make this expense too yet.” Then she intimated as if she had not done anything for him he would not have come to anything. Then he said to her, “ Grandmother, what you have helped me to I can give to you.” Then he went and got half to pay to her, and the other half he was going to get her in two hours, and she did not take it. Then she said, “ David, I gave you this as an inheritance, and this shall never be paid back. Nothing do I want except the interest when I need it.” Then there wasn’t anything further said, and that day she went away, cross, angry and spiteful.</p> <p>Under a like offer, objection and admission as the last preceding, Oliver Heydt, another son of defendant, testified to a like conversation between the decedent and the defendant in the last year of her life.</p> <p>Q. Tell us what conversation took place ? A. She came out and asked my father what he had done with this money. I don’t remember what my father said that he had done with it. He then said to her, “Mother, I have half of this money at home in the house and the other half I can have here in two hours.” Then she said, “ David, this you don’t need to give to me in your lifetime. This I have given Betsie as an inheritance, and I don’t want any interest unless I need it, and if I need it I will ask you for it.” That is all I heard of what was said there at that time.</p> <p>No testimony was adduced by the defendant as to anything said or done at the time of the execution of the note.</p> <p>The court, J. Hagenman, P. J., charged the jury :</p> <p>This action is brought by the executors of Sarah Boyer, to recover from David Heydt the amount of a promissory note with interest. The note in suit, whether given on that day or not, is dated on the first of April, 1880, and reads: “ One year after date I promise to pay to the order of Sarah Boyer, widow, the sum of $850, with five per cent, interest, without defalcation, for value received.” Signed “ David Heydt.” Upon this the plaintiffs ask that the jury find a verdict for this amount with interest from the first of April, 1882.</p> <p>The interest was paid on this note, as indorsed on the back of it, on the first of April, 1881, and again in full on the first of April, 1882. This is the case that is presented upon the part of the plaintiffs, and if there were no further evidence the plaintiffs would be entitled to a verdict for the $850, with interest from the first of April, 1882, to the present time. The defendant, however, alleges that the $850 was not a loan, but was a gift upon the part of Sarah Boyer to her daughter, Mrs. David Heydt, as (using the German expression) “ Arbshoft ” —an advancement. Now, an advancement is a gift by a parent to a child in contemplation of the share of the latter in the estate after the decease of the former, and it is a gift that is not revocable. When it is once given, it is given, and the gift is absolute. Now, what evidence is there in the cause from which the jury may find that this $850 was a gift, and not a loan ? The only witness who testifies as to the handing over and receipt of that money, is John Heydt, a son of the defendant. He says:.....That is the testimony in regard to the passing over of this money. The jury will have to determine from this testimony as to whether there was, at the time when this money was passed over, an intention upon the part of Sarah Boyer to give this money to Mrs. Heydt or not. If it was then it would be an advancement. If she passed it over to her as part of her “arbshoft” on account of her-inheritance, gave it to her never to be returned again, then it was an advancement: The evidence must satisfy the jury with some positiveness that this was a gift upon the part of Sarah. Boyer to her daughter. There is some other testimony that was submitted by some of the other sons of David Heydt. Jacob Heydt says, speaking of his grandmother: “ She said, ‘ What your father and your mother had from me is all they will get from me.’ ” Peter Heydt, another son, was called and he talks about his mother having gone down into the cellar, the cellar door having fallen, and of something that occurred between the daughter and her mother. Then what was said was to the father. “ She said to father that if she had not helped him he would have come to nothing. He then said that what he had from her he could pay back, and went and got half of the amount, and said he would get the rest in two hour’s. Then grandmother said, ‘ David, I gave you this for arbshoft.’ ” Even if the jury take that declaration as it is, it would not of itself be sufficient to convert tbe sum given into an advancement. Tbe advancement, if it was an advancement, must have been received, at the time when the money was passed over, as an advancement, and must bave been so intended by Mrs. Sarah Boyer at that time; and, if it was a debt before, this subsequent declaration of hers would not convert that debt into an advancement. It is claimed upon the part of the plaintiffs that although this is an acknowl'edgment by Sarah Boyer that this money was given as arbshoft, (that is as an advancement) yet the fact that David Heydt offered to return it shows- that it was not recognized by him as such. Oliver Heydt was also examined. He says that he and his father were out and they stopped and talked with the old lady and “ She asked my lather what he did with the money. He said, ‘ The half. I have at the house and the rest I can get you in two hours,’ and she then said, ‘ David, you need not pay it back in your lifetime. I gave it to Betsie as arbshoft. You can only pay me the interest when I want it.’ ” This is all the evidence that I remember that bears upon this question. [As I said before, the jury must inquire, first, How was this money handed over? How was it received? Was it received as an advancement, or was it received as a loan? If it was received as a loan, then these subsequent declarations, made by the old lady, do not convert that loan into an advancement, and the verdict would have to be in favor of the plantiffs. But if the jury find from the evidence of John Heydt that it was an advancement, these other declarations, which were sworn to by these other witnesses, if the jury believe them, are entitled to be considered. That is about all I propose to say to you on this subject. Here is the note, the evidence that it was a debt. Was it a loan at the time, or was it a gift ? If it was a loan, then the plaintiffs would be entitled to a verdict, with interest from the first of April, 1882, to the present time. If it was an advancement, a gift by Sarah Boyer to her daughter, then your verdict will be in favor of the defendant.]5</p> <p>Plaintiffs asks the court to instruct the jury that under all the testimony in this case, the verdict must be for the plaintiff for the amount of the note. The court declines so to charge the jury.4</p> <p>Under this charge the jury returned a verdict for the defendant, and thereupon the plaintiffs took this writ specifying that the court erred:</p> <p>1-8. In overruling the plaintiffs’ objections to defendant’s offers.1-3</p> <p>4. In not affirming plaintiffs’ point.4</p> <p>5. In that part of the charge embraced in [ ] 5</p>

<p>No. 107 July Term 1886, Sup. Ct.; court below, No. 92 Ffebruary Term 1885, C. P.</p> <p>In proceedings in the Orphans’ Court of Northampton county relating to tbe probate of tbe alleged will, with tbe codicils thereto, of Andrew Herster, deceased, on January 8, 1885, it was ordered: That an issue be awarded to be tried in due course of law to determine the questions of fact, whether the alleged will of June 13, 1874, and the codicils thereto of August 29, 1878, and of May 7,1880, or only the said codicils, or one of them, were made and executed by Andrew Herster by reason of undue influence, fraud or misrepresentation; that in said issue, William Henry Herster and Irwin Reich and Eliza Reich, his wife, in right of the said Eliza, are to be plaintiffs, and Andrew J. Herster, devisee, and Andrew J. Herster and James W. Lynn, executors, etc., are to be defendants. The issue as directed was duly formed by the proper pleadings in the Common Pleas and came on for trial on May 21, 1886.</p> <p>Andrew Herster, the decedent, died on May 27, 1882, aged nearly 84 years, and leaving an estate worth from $200,000 to $250,000, a large portion being valuable real estate in Easton. He left six children, four sons and two daughters, and a grandchild, the daughter of a deceased son. By the will the greater part of the testator’s property was bequeathed and devised to Andrew J. Herster, who was also the residuary legatee and devisee, and various bequests and devises were made to other children. By the two codicils several of the bequests and devises to the other children were revoked or changed, so that almost the entire estate passed to Andrew J. Herster, and the other children were “ virtually disinherited.”</p> <p>To support the theory of undue influerice exercised by the defendants in the issue, evidence was adduced: That the testator’s wife had died about 1863, and thereafter until his death he was an inmate of the family of his son, Andrew Jackson Herster; that, though he had been a man of vigorous intellect and excellent business capacity, about 1872 he began to fail mentally and physically; that he had suffered for a number of years from frequent attacks of cerebral congestion, and in 1874, the year the will was executed, he 'had ten attacks, the most serious of which was but a few days before the execution of the will, when “ he could not articulate well; he would not express himself intelligently; there was a loss of memory and he complained that his mind was failing him ”; and that while in this condition he had been taken to the office of Mr. James W. Lynn, where the will was executed; that during this period, from the time of the first attacks of congestion of the brain until near the time of his death, he made statements to various witnesses, not members of his family, as to the misconduct of his children, indicating that he had become embittered against them; that on several occasions he had declared that his son Daniel and his wife had attempted to poison him, and had accused his children of stealing linen, clothes and money from the house, and directed the doors to be secured by bolts and ropes ; that testator declared on several occasions that these things were so, because he had been told so by his son Jack and also by Jack’s wife; and that these complaints, charges and statements were without foundation ; that within a week after the testator died, Mr. Lynn entered of record assignments of mortgages by the testator to Andrew Jackson Herster aggregating in amount $10,000, all of which had been executed within ten years, and also deeds for properties valued at $30,000; which instruments were all in the possession of the decedent up to the time of his death.</p> <p>Andrew Jackson Herster, on the stand: Plaintiffs propose to ask this witness, called as on cross-examination, where this amount of $2,665 [in the bank-book of witness] came from ; this to be followed by proof that he had no other means or resources from which to receive so large an amount, except through his father. Objected to as incompetent and irrelevant, and as an interference with the private matters of the witness that have no relevancy to the issue. Objection sustained ; exception.6</p> <p>Jacob Herster recalled by the plaintiff.</p> <p>Plaintiff now offers to prove by this witness that on the Saturday before the testator’s death, the decedent having died on the following Monday, and having become unconscious on Saturday preceding, that in an interview with the witness, the decedent expressed a great desire and anxiety to have possession of his will and the two codicils and that he requested the witness to remain with him during the day for the purpose of enabling him, in case the will and codicils were not returned to him, to procure them from the custody of James W.Lynn; that he declared to the witness repeatedly during the day that he had requested James W. Lynn, his attorney, who had prepared the will and codicils, to return them, and that he had sent his son, Andrew Jackson Herster, to the office of Mr. Lynn with instructions to bring the will and codicils to him; that on different occasions he had so sent him and that he would return and inform him that Mr. Lynn would bring them out himself, and when Mr. Lynn called he failed to bring them and made some excuse with reference to his not bringing them, either that he had forgotten them or some other reason for his failure to do so; that he declared to the witness that he must see these papers before he died, 'aud requested the witness to remain until late that evening in order to see whether the papers would be returned; that having waited at the testator’s request until ten o’clock on that Saturday evening he stated to the witness that he should return on Monday morning following, and that if the papers were not brought to him he would make arrangements to send for or procure them from the custody of Mr. Lynn, and again told the witness that if they were not brought by Monday morning he should be sure to get them from the custody of James W. Lynn, aud that he then declared that he must see those papers before he died and must have them : that on the Sunday following he had a stroke of apoplexy which rendered him unconscious for some time, and that on the following Monday morning, while upon his death bed, the testator being restored somewhat to consciousness, called his son Jacob to his bed and took his hand and declared repeatedly to him, “ My God, it is all wrong, it is all wrong — My Got, es is letz, es is letz,” — and shortly after died: this evidence is offered in connection with the other circumstances already given in evidence for the purpose, 1, of illustrating and showing the state of the feeling of the testator towards his son Jacob and the remainder of the family; 2, to show undue influence, and that the testator was in a condition easily to be influenced; 8, for the purpose of showing the testator’s state of mind as to its weakness and impressibility; 4, for the purpose of showing that when removed from the presence of Andrew Jackson Herster or of the wife of Andrew Jackson Herster, that there was a state of mind indicating a feeling of dissatisfaction with what had been done with reference to his will and two codicils; this evidence to be followed also by proof that repeatedly, from a time beginning with five or six years prior to-the decedent’s death and at different times up to the time of his death, the testator complained of the failure of Lynn and Andrew Jackson Herster to bring or to give him the custody and possession of the will and codicils, and in connection with proof that upon these different occasions the testator repeatedly declared his anxiety to have the custody and control of the will and codicils, and that the testator was dissatisfied with the state and condition of the disposition of his property in the will and codicils; offered also in connection with the proof already in the case of similar declarations by the testator made a number of years previously.</p> <p>Objected to: Because the offer relates to proof of declarations of the testator eight years after the execution of the will and two years after the execution of the last codicil, the same being incompetent under the pleadings to prove undue influence at or about the time of the execution of' either the will or its codicils, and that the same has a tendency to prove only an unexecuted purpose of revocation which is void under the act of assembly; that the declarations themselves are evidence only of a parol revocation eight years after the execution of the will and two years after the execution of the last codicil, which is void under the act of assembly and because incompetent and irrelevant.</p> <p>By the court: Under the authority in 109 Mass. — If the sole purpose was to show the state of feeling between the testator and Jacob Herster, his son, I would feel constrained, under the authority of that case to admit the evidence. But I do not think the evidence included in the offer is of a character to illustrate especially, or at all, the state of feeling of the testator towards his son Jacob. The offer is for a different purpose. As I assume from the offer itself, it is for the purpose of showing that undue influence had been exercised upon the testator. I will admit evidence as to what took place between the old man and Jacob that will illustrate the nature of the feeling between the old man and Jacob upon his death bed, but I don’t think that the declarations by the old man, that it all was wrong, would illustrate his feelings towards Jacob or his other children. So far as the offer is concerned I will sustain the objection and seal a bill for the plaintiff. I will not admit the offer in the present form.</p> <p>Plaintiff now renews the offer for the purpose of illustrating the state of feeling of Andrew Herster, the testator, towards his son Jacob.</p> <p>By the court: You will have to eliminate from the offer, before I can admit it, all that is not germane to the simple question as to the state of feeling of the testator towards his son Jacob — eliminate from the offer everything that is not referable to the question of feeling. I sustain the objection to the first offer. Plaintiff excepts.8</p> <p>Plaintiff now offers to prove that on the Saturday preceding the death of the testator, he requested his son Jacob to remain with him from about the middle of the day until late in the evening, and that he expressed to the witness his desire to procure his will and codicils; that in the absence of his son Andrew Jackson Herster, the testator treated his son Jacob in an affectionate and confidential manner; that his manner towards his sou Jacob during the day was kindly and affectionate, aud that on the following Monday, when stricken down upon his last bed of sickness, and shortly before his death, in his last moments of consciousness he took his son Jacob by the hand, affectionately calling him to his bedside and in a tone of sorrow and regret declared, “ It is all wrong, Mjr Got es is letz: ” using the German language, and shortly after became unconscious and died.</p> <p>By the court: If you will strike out of that offer the latter part of it: “ My God it is all wrong,” and strike out the part of it as to the request to Jacob to get the will and codicils, I will admit the offer, but the offer in its present shape we will have to exclude under the objection. Plaintiff excepts.9</p> <p>Plaintiff now proposes to prove that on the Saturday preceding the death of the testator, in the absence of his son Andrew Jackson Herster, the testator treated his son Jacob in an affectionate and confidential manner; that his manner towards his son Jacob during the day was kindly and affectionate, and that on the following Monday, when stricken down upon Ms last bed of sickness and shortly before his death in Ms last moments of consciousness he took his son Jacob by the hand, affectionately calling Mm to his bedside. Objected to: as being incompetent and irrelevant and because it in no way illustrates the question of undue influence exercised eight years before his death, the time of the execution of the will, or two years before the time of the execution of the last codicil, the question of undue influence being the only question trying under the pleadings in this case.</p> <p>By the court: I was carried away temporarily by the. decision in 109 Mass. There seems to be a conflict between the practice in Massachusetts and this state. I therefore sustain the objection and give the plaintiff a bill.10</p> <p>Plaintiff rests.</p> <p>The court, W. W. Schuyler, P. J., charged the jury as follows:</p> <p>This, is an issue to try the validity of three papers purporting to be respectively the last will and testament and the codicils thereto of the late Andrew Herster, deceased. Mr. Herster died May 27, 1882, leaving behind him a large estate in farms, houses, and lots, personal property and money, estimated to be worth $200 000. He also left to survive him four sons and two daughters, all of whom at the time of their father’s death were well advanced in years, having families of their own. So far as the evidence discloses, these children, with perhaps one exception, were respectable and well behaved members of the community in which they lived, and still are such. By his will and codicils Mr. Herster, instead of dividing his.estate equally among his children, gives almost the entire bulk of it to one of his sons, Andrew Jackson Herster; the portions given to the other children, with the exception of Henry, amounting to scarcely more than a pittance. There is something in human nature that rebels against this species of favoritism, and no doubt when the will and the codicils were read in your presence you experienced as I did, a feeling not unlike indignation. The children thus virtually disinherited were as near to the testator as their more fortunate brother. They, like him, were bone of his bone, and flesh of his flesh, and they were all alike the natural objects of his bounty.</p> <p>But whilst the law is in this way, gross inequality in wills has always been a fruitful source of litigation, and where the stake is as large as in the present case, it is not at all strange that the validity of the will should be challenged. Accordingly we find that two out of four of the less fortunate of Mr. Herster’s children that survive, one of the five being dead, are here contending that the three papers purporting to be the last will and codicils of Mr. Herster are not what they purport to be. Of course, Jackson Herster, who, in addition to receiving the bulk of the estate, is appointed one of the executors of the will, denies this. James W. Lynn, Esq., Jackson’s co-executor, also denies it. To be more specific, William Henry Herster and Eliza Reich, the two children just referred to as contestants against the will and codicils, and who are the plaintiffs here, affirm that the alleged will and codicils, or one of them, were made and executed by reason of undue influence, fraud or misrepresentation. Jackson Herster and Mr. Lynn, the defendants here, deny this, and in this way is raised the issue now being tried. In more simple form, the issue is whether the will and codicils in controversy were procured to be made by undue influence; the' terms fraud and misrepresentation as here used, signifying merely the means by which the alleged undue influence was acquired and exercised, for undue influence may be either- through threats or fraud: Thompson v. Kyner, 65 Penn. St. 379. Now, undue influence is defined to be “ any improper or wrongful constraint, machination or urgency of persuasion, whereby the will of a1 person is overpowered and -he is induced to do or forbear an act which he would not do or would do if left to act freely: ” Abbott’s Law Dictionary. “ That is undue influence,” says Strong, J., in Eckert v. Flowry, 43 Penn. St. 51, “ which amounts to constraint, which substitutes the will of another for that of the testator. It may be either through -threats or fraud, but however exercised it must, in order to avoid a will, destroy the free agency of the testatrix at the time when the instrument is made......Unless, therefore, there was some evidence tending legitimately to prove that fraud had been practiced upon the testatrix at the time, or that some misrepresentation had been made, or that some moral or physical coercion had been employed, such as to destroy her free agency, the court erred in submitting to the jury the question whether undue influence had been exerted......Undoubtedly if the mind of the testratrix was weak -it required less influence to control her will than it would have required to control the will of one whose mind was in full vigor. But neither moral or physical constraint is to be inferred from mental weakness alone. That undue influence, which suffices to destroy an alleged will, is distinct from weakness, and has no necessary connection with it.”</p> <p>But though there is no necessary connection between undue influence and weakness of mind they are usually found hand in hand, and hence it is always competent to inquire into the state of mind of the person alleged to have been influenced.</p> <p>Says Mr. Justice Paxson, in Cauffman v. Long, 82 Penn. St. 77, “ no right of the citizen is more valued than the power to dispose of his property by will. No right is more solemnly assured to him by law. Nor does it depend in any sense upon the judicious exercise of it. It rarely happens that a man bequeaths his estate to the entire satisfaction of either his family or friends. In many instances his testamentary disposition of property seems harsh, if not unjust; the result, perhaps, of prejudice, as to some of the testator’s kindred, or undue partiality as to the others. But these are matters about which we have no concern. The law wisely secures equity of distribution where a man dies intestate. But the very object of a will is to produce inequality, and to provide for the wants of the testator’s family, to protect those who are helpless, to reward those who have been affectionate, and to punish those who have been disobedient. It is doubtless true that narrow prejudice sometimes interferes with the wisdom of such arrangements. Tliis is due to the imperfections of human nature. It must be remembered that in this country a man’s prejudices are a part of his liberty. He has a right to them; he may be unjust to his children or relatives. He is entitled to the control of his property while living, and by will to direct its usé after his death, subject only to such restrictions as are imposed by law. Where a man has sufficient memory and understanding to make a will, and such instrument is not the result of undue influence, but is the uncontrolled act of his own mind, it is not to be set aside in Pennsylvania without sufficient evidence nor upon any sentimental notions of equality.”</p> <p>To establish the charge of undue influence two points must be sustained : First, the fact that the influence was exercised, and next that it was effectual in producing the alleged result. Under the last branch it is competent “ to show that the testator was of that peculiar mental structure, was possessed of those intrinsic or accidental qualities, was subject to such passion or prejudice, of such perverse or feeble will, or so mentally infirm in any respect as to render it probable that the efforts used were successful in producing in the will offered the combined result. The purpose of the evidence in this direction is to establish that liability of the testator to be easily affected by fraud or undue influence, which constitutes the necessary counterpart of the other facts to be proved ”: Sheiler v. Bumstead, 99 Mass. 120.</p> <p>You will now understand why it is that so much evidence has been introduced as to the state of Mr. Herster’s mind, for it must be remembered that the issue now being tried is not whether the testator possessed a sufficient memory and understanding to make a will. Not at all. The plaintiffs concede that he had a sound and disposing mind when the three papers in controversy were executed, but their allegation is that his mind vvas so weakened by disease and old age as to make him an easy prey to the alleged machinations of his son Jackson and Jackson’s wife. But even if you should be satisfied from the weight of the evidence that this was the condition of the testator’s mind, that, as has been seen, would not be enough to warrant a verdict in favor of the plaintiffs. The duty would still rest on the plaintiffs to show that the weakness, such as it was, had been unduly influenced, and the will and codicils in controversy were the result of the undue influence thus exercised.</p> <p>It is not pretended that any direct influence was brought to bear upon the testator in the very act of executing the will and codicils. The undisputed evidence is that the testator was alone with his counsel when he gave instructions for the preparation of the papers. The undisputed evidence also is that he came alone to the office of Mr. Lynn on three several occasions, when the will and codicils were signed, and that he there signed the papers in the presence of respectable witnesses, who are in no way implicated in the charge of undue influence here now made. . To all outward appearance, therefore, the signing of the will and codicils was the free and voluntary act of the testator. Plaintiffs complain, however, that appearances in this case are deceitful, as they often are. Their allegation is that when these papers were executed the testator’s mind was not free, but that it was fettered and controlled by cruel and unjust prejudice engendered’against his other children by Jackson Herster and his wife through misrepresentation derogatory to the character and conduct of these other children.</p> <p>If there is sufficient evidence in this cause tending legitimately to establish the truth of this serious charge, it will be my clear duty to submit it to your consideration. If, however, there is no such evidence it will be just as clearly my duty, to take such evidence as there is away from you and to- direct a verdict in favor of the defendants. In Wilson v. Mitchell, 101 Penn. St. 505, the Supreme Court say that “ a case should no,t be submitted to the jury where the evidence is so insufficient that the court ought not sustain the verdict.” And in Cauffman v. Long, 82 Penn. St. 72, it is held to be the duty of the court to determine the sufficiency of evidence of testamentary capacity, and the same is true of undue influence, and that it is error to submit the question to the jury unless it be sufficient. On the contrary it is equally error to withdraw from the jury evidence that is sufficient, so that the judge who presides at the trial of issues like the present is between two fires, and no judge who has once, in an important case like the present, occupied such a position, is likely to be at all anxious to repeat the experience. But unpleasant and sometimes difficult as is the duty thus imposed, it must be met.</p> <p>[Is, then, the evidence relied upon by the plaintiffs to establish undue influence sufficient for that purpose ? It must be borne in mind that undue influence will not be presumed. True, it is not necessary to produce direct evidence of the fact, but where it is sought to be established by inference from other facts in the cause, the inference must be a necessary one. When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to be established by proof: Smith v. Bank, 99 Mass. 611. Moreover, “ the influence to render a will void must be intentionally exercised specifically to procure the testament in question: Thompson v. Kyner, 65 Penn. St. 375. I fail to discover in the present case even the slightest evidence of the character just indicated.] 1</p> <p>Standing alone, the inequalities in the will and codicils create no presumption against the validity of the will and codicils, nor does the fact that Jackson had gained upon the affections of his father and in this way acquired an ascendencjr over him militate in any degree against the validity of the will and codicils.</p> <p>The testator had a right to do as he pleased with his property, and Jackson had a right to use lawful persuasion and even importunity to induce his father to make a will in his favor, to the exclusion of his brothers and sisters. This is familiar law calling for no citation of authorities. Nor does the fact that the testator’s mind has been weakened by disease and old age alter the case in the least. But it is said that Jackson and his wife prejudiced the testator by false statements against the other children. Concede this for the sake of the argument, and yet it amounts to nothing, because there is no evidence that these statements were made to influence the testator in the testamentary act.</p> <p>[It is quite likely that they were made, if made at all, from feelings of jealousy, or for the purpose of paving the way for the large benefaction Jackson received from his father in his lifetime.] 4</p> <p>There is no evidence that either Jackson or his wife at any time had any conversation with the testator about making his will.</p> <p>[The statements, therefore, not being connected with the act of making the will and codicils, are not evidence to impeach them : Wainwright’s Appeal, 89 Penn. St. 220. Thus far, therefore, we have discovered no evidence whatever of undue influence, and yet there is no other evidence on the subject. The declarations of the testator that Jackson and his wife had told him stories about his other children calculated to prejudice the testator against them are not evidence on the question of undue influence at all; for there is no evidence that the declarations are true.] 8</p> <p>For all that appears they may have been the expressions of a mere delusion on the part of the testator. [Finding, therefore, no evidence whatever of undue influence in procuring the will and codicils in controversy, or either of them, it becomes my duty to direct you to return a verdict in favor of the defendants.] 3</p> <p>The jury returned a verdict for the defendants, whereupon the plaintiffs took this writ, assigning that the court erred:</p> <p>1-4. In the parts of the charge embraced in [] 1 8 3 4</p> <p>6. In sustaining the objection to plaintiffs’ offer.6</p> <p>8-10. In sustaining the objections to plaintiffs’ offers.8-10</p> <p>18. In directing a verdict in favor of the defendants.</p>

<p>No. 213 July Term 1886, Sup. Ct.; court below, No. 48 February Term 1882.</p> <p>Under the authority of an order from the Circuit Court of the U. S., E. D., on February 8, 1882, this suit was brought by Charles Seifert against Edwin M. Lewis, F. B. Gowen and Stephen A. Caldwell, receivers of the Philadelphia & Reading R. Co. The plaintiff was a locomotive engineer in the employ of the defendants, and ran a freight train, No. 71, between Philadelphia and South Bethlehem, on the North Penn, branch of said railroad. On the morning of February 10, 1881, his engine was struck and demolished by a passenger Express, known as No. 8, in which collision he received serious and permanent injuries for which he subsequently brought this suit.</p> <p>No. 8 left South Bethlehem at 9 A. M., 30 minutes late, with orders to pass No. 3, fast line, at a stop at Souderton, and stopped as usual at Hellerton, Centre Yalley, Coopersburg and Quakertown. The next stop after Quakertown, on the schedule, was Perkasie, and Souderton was still south of Perkasie. No. 71 started from Philadelphia at 3:30 A. M. and ran on schedule time to Perkasie, where the conductor was ordered to meet and pass No. 8 at Rockhill, which is not a station, but a telegraph office and siding for passing trains. On nearing Rockhill, the engineer and conductor of No. 71 observed the signal board turned in their favor as a signal to enter the siding ; and as the engine slacked its speed, the conductor alighted and inquired of the operator “how No. 8 was,” and was informed that No. 8 had left Quakertown four minutes before. The conductor then ordered the brakeman to flag No. 8, but before the brakeman had walked three car-lengths forward, No. 8 came down the track at a high rate of speed and struck No. 71 as it was entering the switch. The other facts relevant to the questions raised sufficiently appear in the charge to the jury and in the opinion of this court.</p> <p>' The defendants were served with the summons by the sheriff of Northampton county at Philadelphia. A motion to set aside the service was refused. “ April 6, 1885, defendants still objecting to service of summons, pleaded not guilty.”</p> <p>June 8, 1886, jury called:</p> <p>Defendants now object to the jury being sworn as to Edwin M. Lewis-: defendants suggest the death of Edwin M. Lewis arid object to the jury being sworn on that account, and further object to the jury being sworn because there has been in this case no'legal service of process upon the receivers.</p> <p>By the court: The objection is overruled and bill sealed for the defendants.0</p>