Volume 117 — Pennsylvania State Reports

<p>ERROR TO THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY.</p> <p>No. 231 January Term 1887, Sup. Ct.; court below, No. 40 April Term 1885, C. P.</p> <p>This cause, a scire facias sur mortgage, by The Freemansburg Building and Loan Association against Josephus Lynn, by agreement of the parties was submitted to the decision of the com't without a jury, under the act of April 22, 1874, P. L. 109.</p> <p>The court, W. W. Schuyler., P. J., after the case was closed on the evidence, found the following facts:</p> <p>The Freemansburg Building and Loan association, plaintiff, was duly incorporated on November 20, 1872, under the act of April 12, 1859, P. L. 544. There is no evidence that the association accepted the act of April 10, 1879, P. L. 16. In October, 1874, the defendant became a member of the association by subscribing for five shares of its capital stock, second series; and in October, 1876, he subscribed for twenty additional shares in the third series, but subsequently withdrew six of these last mentioned shares, which left him the owner of nineteen shares. The’ by-laws of the association provide inter alia as follows: Each stockholder for each share held by him must pay into the treasury at each stated monthly meeting the sum of one dollar, which are called his monthly dues, until the value of the whole stock shall be sufficient to divide to each share of stock the sum of $200. The holder of each share of stock is entitled to a loan from the association of $200. These loans must be made in open meeting to the highest bidder, but no loan can be accepted at less than ten per cent, premium. When a loan is effected the borrower receives the amount of loan bid, less the premium, but he must give his obligation for the full amount and must pay interest on the same monthly. To secure the repayment of the loan, with interest, the borrower is required to give a satisfactory bond and mortgage, and in addition for every loan of $200 he must transfer one share of stock to the association as collateral security.</p> <p>Article vn., section 1: “ Each and every stockholder or trustee who shall neglect or refuse to pay his monthly dues or interest as often as the same shall become due and payable, shall forfeit and pay the additional sum of ten cents monthly on each and every dollar due by him.”</p> <p>Article V., section 5 : “ Each stockholder or trustee on receiving his certificate of stock shall be considered as obligating himself to pay promptly his monthly dues, fines and interest, and in all respects to comply with the requisitions of the constitution and by-laws and the rules and regulations of the board of directors.”</p> <p>Article vrn.: “ If any stockholder or trustee shall continue to neglect or refuse to pay his, her or their monthly dues and fines for the space of six months, his, her or their share or shares of stock may be declared forfeited by the board of directors, when the same shall revert to the association; after first deducting the proportion of losses and expenses, all fines, the defaulting stockholder shall be entitled to receive any balance of his, her or their monthly payments and shall from thenceforth cease to be a member of this association.”</p> <p>Article ix., section 2: “ Any stockholder who has received a loan may repay the same at any time, and in case of the repayment thereof before the expiration of the eighth year after the organization of the corporation, there shall be refunded to such stockholder one eighth of the premiums paid for every year of the said eight years then unexpired.”</p> <p>The defendant, as the owner of nineteen shares of stock, being entitled to borrow from the association $8,800, at different times bid out smaller sums aggregating that amount, at an average premuim of 22 x9g per centum, to secure the payment of which, with interest, he assigned his stock as collateral and also gave the mortgage in suit, which is dated Dec. 28, 1876. The mortgage calls for the payment of $5,000, but the correct sum is $8,800. After giving the mortgage the defendant frequently defaulted in the payment of both his monthly dues and interest, in consequence of which he was charged with a fine of ten cents monthly on each dollar of his indebtedness at the time the fines were imposed. To illustrate: Defendant’s monthly dues and interest amounted to $38. In February, 1879, he defaulted. By adding the ten per cent, we have his total indebtedness for that month $41.80. He defaulted again the next month, making his total indebtedness, including the fine for February, $79.80. To get at the amount of his fines for March, ten per cent, on the $79.80 was calculated, and so on to the end of the chapter. An account of these fines was kept, not only in the books of the association, but also in a book furnished to the defendant for his information.</p> <p>The defendant from time to time made payments on account of his dues, interest and fines, but notwithstanding these payments he was, on May 22, 1882, indebted to the association, as shown by the books, in the following sums: Dues, $302; interest, $302; fines, $360.13 ; total, $964.13. In addition to these sums the defendant was then indebted on protested checks -given for fines and dues, for which he had received credit, in a sum sufficient to increase his indebtedness for fines,, dues and interest to considerably more than $1,000. On the said 22d day of May the defendant, under the threat that his mortgage would be foreclosed, paid $1,000. A few days after-wards he paid in addition a sum sufficient to cancel his entire indebtedness to the association for fines, dues and interest. These payments were made by the defendant voluntarily, with a full knowledge of the facts, and for the purpose of squaring his accounts with the association, and they were so applied. After thus squaring his accounts the defendant continued to be a ■ member of the association, sometimes paying his dues and interest and sometimes defaulting as before, until Feb. 14, 1885, when his stock was declared forfeited at a meeting of the board of directors, the defendant having neglected to pay his monthly dues and fines for the space of six months prior to the date last mentioned.</p> <p>Between May 22, 1882, and Feb. 14, 1885, the defendant became indebted to the association for dues, interest and fines in the-following sums: Dues, .$627; interest, $627; fines, $1,536.38; total, $2,800.38. During the same period he made payments, as appears from the books of the association, as follows: Dues, $335; interest, $335; fines, $442.59; total, $1,112.59. Included in this last sum are a number of checks aggregating $202.18, which the plaintiff alleges were not paid, but the evidence as to these checks is not sufficiently clear to permit of their adjustment in the present suit. Since suit brought the defendant has paid to the association $175.37, which the association has never appropriated, although still holding the money. Defendant now asks to have this money appropriated to the payment of the mortgage.</p> <p>The defendant has received from the association as the net proceeds of his mortgage, $2,946, and $150 when he withdrew his six shares; total, $3,096. He has paid to association the following sums: Dues, $1,878; interest, $1,551.50; fines, $950.31: Since suit brought, $175.37;' total, $4,555.18.</p> <p>The conclusions of law found by the court were as contained in the following points and the answers thereto:</p> <p>The plaintiff’s points in substance were: .</p> <p>1. That the various payments made by the defendant on May 22, 1882, and prior thereto, as fines, eo nomine, were not usurious.</p> <p>Answer: Affirmed.</p> <p>2. That, as the matter of fact, on May 22, 1882, plaintiff and defendant had a settlement to that date, and the defendant paid $1,000 which was appropriated by mutual agreement to dues, interest, fines and to his unpaid checks, being all the arrearages then due by Mm; that such payment and appropriation were vokmtary; that defendant had actual notice of the mode of assessment adopted by the association and of the law and by-laws under which it was made. That, as matter of law, this payment and appropriation were conclusive and the defendant cannot now have a re-appropriation made either by himself or by the court.</p> <p>Answer: Affirmed.</p> <p>3. That, as matter of fact, plaintiff is a mutual association of which the defendant was a member continuously from the date of the mortgage until February 14, 1885; that the fines imposed since May 22, 1882, were imposed according to the charter and by-laws and defendant made payment on account thereof voluntarily. That, as matter of law, he is presumed to have had actual knowledge how these fines were assessed and of the by-law under which they were levied, and is estopped from objecting to the method of assessment, is 'concluded by the payments made and cannot now have a different appropriation made either by liimself or by the court.</p> <p>Answer: Affirmed.</p> <p>The defendant’s points in substance were:</p> <p>1. That by the provisions of the mortgage, the mortgagee was bound to pay only $25 per month, and, as the undisputed evidence shows that, at the time the scire facias was issued, the defendant had paid more than $25 per month, the finding must be in favor of the defendant.</p> <p>Answer: I cannot affirm this point.</p> <p>2. That, even if the foregoing were not correct, the evidence shows that at the time the suit was brought, the defendant had paid dues, interest and legal fines in excess of the amount wMch he was required to pay, and the finding must be for the defendant.</p> <p>Answer: I cannot affirm this point.</p> <p>3. That whenever default was made by the defendant in the payment of dues, or interest, or both, the only fine which the association could legally inflict wag ten cents on each dollar of the sum so remaining unpaid; that any fine imposed in excess of that amount was illegal and void, and that no payment or alleged settlement by the defendant would legalize any fine illegally imposed, or deprive him of the right to have payments made by him appropriated to the payment of dues, interest and legal fines only.</p> <p>Answer: I cannot affirm this point.</p> <p>Upon these findings of fact and conclusions of law the court made a calculation and decree as to the amount for which judgment should be entered for the plaintiff. To this decision both the plaintiff and defendant excepted, when the court entered a modified judgment as follows:</p> <p>Charge defendant with $2,433, which is the difference between $3,800, the original amount of • the mortgage, and $1,367, which is the amount of dues paid by the defendant up ' to and including the settlement of May 22, 1882. Also with dues and interest at the rate of $38 per month, from May 22, 1882, to February 14, 1885, when defendant’s stock was forfeited, less $518 paid on account during this period. Also with interest on $2,433 from Februaiy 14, 1885, to this date, crediting the following payments: May 9,1885, $49.25; June 24,1885, $41.53; July 27,1885, $45.13; Aug. 26,1885, $39.46. The balance will be the amount for which judgment should be entered against the defendant, and it is ordered that judgment be entered accordingly.</p> <p>Judgment having been entered for the balance thus found to be due, to wit: $3,266.53, the defendant thereupon took - this writ, assigning for error the affirmance of the plaintiff’s . points, the refusal of the defendant’s points and the entry of said judgment.</p>

<p>FROM THE DECREE OE THE ORPHANS’ COURT OE WYOMING COUNTY.</p> <p>No. 263 January Term 1886, Sup. Ct.</p> <p>This cause arose in the distribution of a balance shown by the first partial account of B. M. Hall, executor of the will of Wm. B. Moneypenny, deceased, who died on August 24,1884. The material parts of said will, which was dated June 6,1876, and of a codicil thereto, dated June 12, 1878, were as follows :—</p> <p>7. All the rest, residue and remainder of my property not herein before mentioned, real, personal and mixed, I direct my executors to sell and convert into money as soon as the same can be done prudently, and without loss or sacrifice, and to apply the proceeds, together with the rents and income of the said leased property in New York City and all other income of my said estate not hereinbefore specifically bequeathed, in the following manner, to wit:</p> <p>1. To the paying off all indebtedness.....</p> <p>2. After all indebtedness is thus discharged I direct them to make semi-annual distributions of whatever money may remain in their hands on the tenth day of May, and the tenth day of November in each year, the said money to be divided into twenty parts and to be distributed as follows, viz: To Matilda Lutes, five parts. To Thomas J. McComb, five parts. To the heirs of my brother Robert Moneypenny five parts. To Doctor J. R. McComb and his heirs, four parts, that is the four parts are to be paid to Dr. J. R. McComb during his lifetime, and after his death the same to be paid to his heirs. To my cousin, Mary Moneypenny, one part. All which distributive shares are to be paid without interest, and none of the said shares are in any case to bear interest. And the said semiannual distributions are to be made so long as the term of the aforesaid renewal lease shall continue in case it shall be renewed. .....</p> <p>No money is to be paid to any of the above mentioned distributees without a receipt being taken from them and a release of all claims and demands against my estate and the estate of Mary Moneypenny, deceased. In case of the death, during the term of the said renewal lease, of any of the said distributees, the share of such decedent, if he or she be one of the heirs of my brother, Robert Moneypenny, deceased, shall be equally divided among the surviving heirs of my said brother; if of the heirs of Dr. J. R. McComb, among the surviving heirs of the said McComb, and in case of the death'of either or both, Thomas J. McComb and Matilda Lutes, their shares shall be equally divided among the surviving heirs of my brother, Robert Moneypenny, deceased. And in case of the death of my cousin, Mary Moneypenny, her share is to be equally divided among the remaining surviving distributees. Provided however, and I expressly direct that the said shares of the several distributees are to be claimed by them within two years after my decease, or else to lapse into the general-fund and be distributed according to the aforesaid proportions, to such distributees as claim their shares, and no share is to be held by my executors at any time for a longer period than two years, nor shall any legatee be at any time entitled to claim any distributive share after two years from the time it is due; but all such shares unclaimed for the space of two years after the same are due shall lapse into the. general fund, and be distributed to the other distributees as aforesaid.</p> <p>8. Upon the determination of the life estates hereinbefore devised to Matilda Lutes and to Thomas J. McComb in the lands as aforesaid, and also upon the determination of the term of years in the New York City property as aforesaid I hereby direct, authorize and empower my executors to make sale of the said several pieces of land, and divide the proceeds equally between the heirs of my brother, Robert Moneypenny, deceased, and Dr. J. R. McComb, or his heirs, that is, one half to the Moneypenny heirs in equal portions among them, and the other half to Dr. J. R. McComb, or in case of his decease to his heirs in equal portions among them, such sales and divisions to be made as each of the said particular estates shall determine.</p> <p>10. I hereby declare that it is my will and intention that each and every, of the herein contained legacies, bequests and devises is given upon the express condition precedent that the same shall be accepted in full satisfaction and release of any right in, or claim or demand against my own estate or the estate of Mary Moneypenny, deceased, and in case any of them should fail to vest because of any legatee or devisee contesting this my will, or neglecting or refusing to accept the bequest or devise upon such condition, then I give, bequeath, and devise the share of such recusant to the other members of the class to which he or she may belong, to be equally divided among them, and in ease such party should not be a member of any particular class, then such share to be divided generally among all the other legatees and devisees.....</p> <p>The codicil recited a renewal of the lease of the New York property for a term of years, revoked the disposition made of the property in the will, and devised the same to his executors in trust to receive the rents and profits thereof during the joint lives of Matilda Lutes and Thomas J. McComb and the life of the survivor of them, and to pay over and divide the same in the proportions and at the times mentioned in the second subdivision of the seventh clause of the will; and upon the death of such survivor he ordered his executors to sell said property subject to the lease thereof and “ to divide the net proceeds of such sale equally between the persons who shall then be the nearest heirs of my deceased brother, Robert Moneypenny, and Dr. J. R. McComb, or his heirs if he be then dead; that is, one half to the Moneypenny heirs in equal portions among them, and the other half to Dr. John R. McComb, or in case he be then dead, to his heirs in equal portions among them.”</p> <p>On September 8, 1884, letters testamentary were issued to B. M. Hall, one of the executors nominated, who filed his first partial account, on December 6, 1884, wbicli was confirmed on April 15, 1885, and showed a balance for distribution of $6,425.49. Mr. Charles H. Terry, appointed an auditor to distribute said balance, made a report showing that after the allowance of two small claims which were proved before him and the costs of a tombstone and of the audit, there was a balance for distribution among the legatees of $5,677.20, of which sum the auditor awarded generally to the heirs of Dr. J. R. McComb the sum of $1,185.15, “without attempting any division among them, leaving such division for future action,” etc. The report was confirmed on June 8, 1885, except as to the share awarded to the heirs of Dr. J. R. McComb, which was referred back to the auditor for further distribution, when the facts following appeared:</p> <p>Dr. J. R. McComb died in New York city on March 29, 1885, leaving to survive him two sons, John R. and William T. McComb, and one daughter, Jane W. McComb, all of full age and still living. He left a will, duly proved, bequeathing and devising all his estate, real and personal, to his daughter, whom he appointed his executrix and who received letters from the surrogate in New York city. Afterwards ancillary letters were issued to Mr. C. A. Little in Wyoming county, Pennsylvania.</p> <p>No express demand for his benefits under the will of Wm. B. Moneypenny was made by Dr. J. R. McComb in his lifetime, but, in a correspondence with B. M. Hall, the accountant, he addressed him a letter dated December 1, 1884, in which was contained: “ In your kind note to me, October 4, you offered any information I may want to address you on the business of Mr. Moneypenny’s will. Will you kindly inform me at what date I may expect my share ? I am now nearly 83 years old, weak and feeble, and many calls for money just at this time, and my income is very limited.” And no release of any rights in, or claims against, the estate of the testator and that of Mary Moneypenny (who was the testator’s mother) was ever tendered by Dr. J. R. McComb; but on the day of the audit, Mr. C. A. Little, administrator, c. t. a., of Dr. McComb, passed to the accountant a writing wherein it was stated that he was ready to comply with the conditions mentioned in the will upon payment to him of the share due to Dr. J. R. Me-Comb. On the same clay the counsel for Wm. T. and John R., the sons of Dr. J. R. MeComb, delivered to the accountant a deed of release drawn to comply with said conditions.</p> <p>Under the will and these facts, it was claimed before the auditor on behalf of the executor of Dr. J. R. MeComb and of his daughter and devisee Jane W. MeComb, that the whole fund for distribution belonged to them for the reasons:</p> <p>1. Because the bequest, being to Dr. MeComb “and his heirs,” or to him “ or his heirs,” the whole legacy, including the amounts of future distributions, vested in Dr. MeComb at the death of the testator, Wm. B. Moneypenny.</p> <p>2. Because the said testator, having directed the payment to Dr. MeComb “and his heirs” in four parts, at each semiannual distribution, and, upon the determination of the life estates devised to Thomas J. MeComb and Matilda Lutes, the payment of one half of the net proceeds of the sale of the real estate to Dr. MeComb, “ or his heirs,” the said Dr. MeComb thereby acquired the absolute ownership of the whole legacy bequeathed to him and his heirs, applying by analogy the principle of the rule in Shelley’s case; and</p> <p>3. Because, irrespective of the other two reasons, Dr. Me-Comb having survived the testator, and having also been alive at the time the executor filed his partial account, he became entitled to four parts of the sum for distribution, the moment that account was filed.</p> <p>The counsel for Wm. T. and John R. MeComb urged that the rule in Shelley’s case had no application, and that Dr. MeComb, having failed in his lifetime to demand his legacy and to signify his willingness to accept the same upon the conditions imposed by the testator, died before any part of the same had vested in him, and that consequently the _ sum for distribution should be divided among his three children in equal portions.</p> <p>The auditor, without deciding upon the first two grounds upon which the fund was claimed by Dr. J. R. McComb’s administrator and daughter, awarded the whole fund to said administrator upon the third ground, holding that in his opinion the act of the accountant in making and filing his account was a separation of the fund in it specified from the remainder of the estate of the deceased, and it thereby became a fund for distribution as to which the rights of the parties then attached. To this report exceptions were filed by J. R. and W. T. McComb, and upon the argument thereof, the court, John A. Sittser, P. J., filed an opinion, which in part was as follows:—</p> <p>, The will does not say “ I give to Dr. J. R. McComb ” anything. The gift is only inferred from the direction to pay, and we must look to all of the directions upon the subject of this payment, in order to determine to whom the payments were to be made in order to infer the gift and the nature of it. Upon this subject the will says: “ No money is to be paid to any of the above mentioned distributees without a receipt being taken from them, and a release of all claims and demands against my estate and the estate of Mary Moneypenny, deceased ; and in case of the death, during the term of the said renewal lease, of any of the said distributees, the share of such decedent, if he or she be one of the heirs of my brother, Robert Moneypenny, deceased, shall be equally divided among the surviving heirs of my said brother; if of the hems of Dr. J. R. McComb, among the surviving heirs of said McComb,” etc.</p> <p>The testator provides for semi-annual distributions of a fund derived from the sale of certain property and from the rents of real estate. This real estate on the corner of Greenwich and Chambers Sts., N. Y. city, had been leased for 21 years from the 1st of May, 1879. These semi-annual distributions are to continue during the lives of Matilda Lutes and Thos. J. Mc'Comb and the life of the survivor of them. The will directs among whom these distributions are to be made as the time arrives for their being paid over, and provides for the death of any of the distributees as well as for a failure of any to claim or to release, etc.</p> <p>It is claimed on the part of the administrator, c. t. a., of Dr. J. R. McComb, that the words “ to Dr. J. R. McComb and his heirs, four parts,” are unaffected by the expression, “ that is, the form parts are to be paid to Dr. J. R. McComb during his lifetime, and after his death the same to be paid to his heirs,” and that the woxd “heirs ” was intended by the testator as a word of limitation and xxot of purchase. We do not so interpret this will.</p> <p>We understand by it that these semi-axxnual payments are to be made to Dr. J. R. McComb, if he be living to take them, and otherwise complies with the will by accepting them and executing a release, etc., and if he be dead, then the payments are to be made to his heirs, and by the word heirs we think the testator intended to describe persons. He used the word “heirs” as a description of persons when he said, “to the heirs of my brother, Robert Moneypenny, five parts.” And when he said, “ that is, the four parts are to be paid to Dr. J. R. McComb during his lifetime, and after Ms death to his heirs,” we think he used the word heirs in the same sense. We tMnk it is evident from the whole tenor of the will that he is simply attempting to describe the persons to whom the executors are to pay each of these semi-annual distributions, as the time arrives for their payment.</p> <p>This matter seems to be put beyond controversy by this provision of the will: “ And in case of the death, during the term of the said renewal lease, of any of the said distributees, the share of such decedent, if he or she be one of the heirs of my brother, Robert Moneypenny, deceased, shall be equally divided among the surviving heirs of my said brother; if of the heirs of Dr. J. R. McComb, among the surviving heirs of the said McComb.” If the testator intended that these persons should take as the heirs of Dr. J. R. McComb, it was useless for Mm to provide for survivorship among them; for if they took as the heirs of Dr. J. R. McComb, they would be governed by Ms will and not by Moneypenny’s, and if McComb left no will, then bv the intestate laws of the state of New York.</p> <p>The same thought is expressed in the codicil, where he directs the sale of the New York city property after the death of the survivor of Matilda Lutes and Thomas J. McComb, and the net proceeds of such sale to be divided equally between “ the persons who shall then be the nearest heirs of my deceased brother, Robert Moneypenny, and Dr. J. R. McComb or his heirs, if he be then dead; that is, one half to the Money-penny heirs and the other half to Dr. J. R. McComb, or in case he be then dead, to his heirs in equal proportions among them.” There is nothing to be paid to Dr. McComb, unless he be living at the time of the distribution. If he be not living then it is to be paid to the McComb heirs, the same as to the Moneypenny heirs, as purchasers. In Moore v. Smith, 9 W. 403, it is said, that where there is no separate and antecedent gift, which is independent of the direction and time for payment, the legacy is contingent. “ Where the gift is only implied from the direction to pay, it is necessarily inseparable from the direction, and must partake of its quality, insomuch that if the one is future and contingent so must the other be.” Lamb v. Lamb, 8 W. 184; King v. King, 1 W. & S. 206; Bayard v. Atkins, 10 Pa. 18; Seibert’s Appeal, 13 Pa. 503; Bowman’s Appeal, 34 Pa. 23; Gilliland v. Bredin, 63 Pa. 397, are other authorities bearing upon this point. We cannot infer a gift to Dr. McComb from a positive direction not to pay, nor from a positive direction to pay some one else.</p> <p>Was Dr. McComb living when by the terms of the will these semi-annual distributions were to commence ?</p> <p>This fund from which the semi-annual distributions are to be made is to be devoted, “ First, to the paying off all indebtedness that may remain against my said estate, including,” etc. “ Second, after all indebtedness is thus discharged, I direct them to make semi-annual distributions of whatever money may remain in their hands on the 10th day of May and the 10th day of November, in each year,” etc.</p> <p>The auditor has not found as a fact when the debts were all paid, or even when the precise amount over and above the payment of debts could be known. It appears, however, from his report first made to the court that he was hearing proofs of claims against the estate, some of them disputed by the executor, on the 29th day of May, 1885, which were allowed by the auditor, and that the indebtedness was not all paid up to that date, or definitely known before that hearing. The partial account was not filed until December 6, 1884. It was simply an administration account, out of which debts as well as legacies could be and were taken. And we cannot presume that a distribution could have been made or should have been made on the 10th of November, 1884, less than three months after the death. Therefore, the first semi-annual distribution could not take place until the 10th of November, 1885.</p> <p>Dr. J. R. McComb died on the 27th of March, 1885, before the auditor held his first meeting, and before the 10th of November, 1885, and under the views above expressed no portion of this fund can be awarded to his administrator, c. t. a.</p> <p>Dr. MeComb not being alive at the time of the first semi-' annual distribution, tbe four parts must be paid to the persons described as his heirs, viz.: Jane W. MeComb, William. T. MeComb and John R. MeComb.</p> <p>A final decree was made in accordance with the foregoing opinion; whereupon Mr. C. A. Little, administrator c. t. a. of Dr. J. R. MeComb and Jane W. MeComb, sole legatee under-said will, took this appeal, assigning as error the overruling of the report of the auditor.</p>

<p>FROM THE COURT OF COMMON PLEAS OF BRADFORD COUNTY.</p> <p>No. 346 January Term 1887, Sup. Ct.; court below, No. 420 December Term 1886, C. P.</p> <p>Jehial J. West, residing at Waverly, Tioga County, New York, but engaged in business in South Waverly, Bradford county, Pennsylvania, where the bulk of his property was situated, on October 24, 1885, made an assignment for the benefit of his creditors to H. Austin Clark of Owego, New York, with three classes of preferences among creditors whose claims aggregated $5,372.88. The deed of assignment was recorded in Tioga county, New York, October 24, 1885, and in Bradford county, Pennsylvania, on October 26, 1885. On November 12, 1885, the assignee came into the Court of Common Pleas of Bradford county by a petition, upon which the said court appointed appraisers to appraise the assigned estate, situate within the jurisdiction of that court. The inventory of said appraisement when filed, amounted to $7,507.12, and said assignee filed a bond in said court in the sum of $15,000, conditioned, etc., as required by the laws of Pennsylvania.</p> <p>On December 15, 1886, the assignee presented a petition to the said court, setting forth the assignment and the recording of the deed as stated; that the assigned property in Pennsylvania consisted entirely of personalty, being a part of the stock of a lumber yard, certain machinery, and a leasehold interest in said yard; that the claims of certain Pennsylvania creditors had been presented, one of which was that of F. E. Smith on a judgment obtained against the assignor for $1,066.03 in the Supreme Court of New York; that the indebtedness of said estate was scheduled at $14,061.55, and the assets, all of which had been converted, were $5,224.76; that the petitioner was about to file in the county court of Tioga county, New York, in compliance with the law of that state, a final account of said estate to the end that distribution might be made; praying for an order directing him to file said account and to proceed thereunder in conformity with the laws of New York as to the distribution of said fund, and that on compliance with said order the petitioner should bé discharged from the trust so far as answerable to the jurisdiction of the court of Pennsylvania.</p> <p>A rule granted upon this petition with notice to the Pennsylvania creditors, was resisted by F. E. Smith upon grounds found in the opinion of P. D. Molinow, P. J., which was as follows:</p> <p>The domicile of the assignor was at Waverly, Tioga county, N. Y. The bulk of his property was in Pennsylvania. All that was in this state was personal property and in this county. He made an assignment for the benefit of creditors to Mr. Clark, of Owego, N. Y. The deed was duly recorded there and also in this state. Appraisers were appointed here, inventory filed, and bond of the assignee approved and filed. He made sale of all of the property, filed his account at Owego, and placed a copy on the record here. He wants to make distribution under the laws of the state of New York, and asks us to make the proper order for that purpose. This is objected to by F. E. Smith, Esq., a Pennsylvania creditor, on the ground that this court has jurisdiction of the assignee, and the subject matter; and also because preferences are allowed under the laws of New York, and if distribution is made there, he will lose his entire debt.</p> <p>The act of May 3, 1855, P. L. 415, provides that a non-resident may make an assignment for the benefit of creditors of his effects in this state, and “ such assignment may be recorded within any county where such estate, real or personal, may be situate and take effect from its date.” As already seen, the provisions of this act have been complied with. There are no claims of purchasers, or lien creditors. Hence the only question is as to the place of distribution. The property in this state was personal, and the proceeds of the sale passed to the assignee, the same as if the sale had been made by the assignor. In other words, the owner of personal property situate in Pennsylvania may, at the place of his domicile in another state, dispose of the same, placing the consideration' within his own control. This an assignee for the benefit of creditors may do. And as to distribution a different rule prevails from that of a foreign decedent, involuntary bankrupt, or receiver : Smith’s Appeal, 104 Pa. 381.</p> <p>I think the doctrine held in this case sufficient to warrant us to make this rule absolute. Smith had acquired no lien upon the property. The assignment was valid under the act of 1855, ut supra, and the fund goes to the domicile of the assignor for distribution.</p> <p>Under this opinion the rule was made absolute -and decree accordingly, whereupon an appeal and writ of certiorari were taken by F. E. Smith, assigning for error the entering of said decree.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE SULLIVAN COUNTY.</p> <p>No. 265 January Term 1887, Sup. Ct.; court below, No. 19 May Term 1885, C. P.</p> <p>The action was begun on March 4, 1885, by a summons in case issued by Michael Collins against Cornelius Cronin and John H. Cronin, and the declaration,' which was in three counts, charged an unlawful and malicious conspiracy between the defendants to cheat and defraud the plaintiff and others, creditors of said Cornelius Cronin, executed by the confession of judgments without consideration and fraudulent, by said Cornelius Cronin to said John H. Cronin, and that upon said judgments executions were issued, whereby the entire estate, real and personal of said Cornelius Cronin was sold and removed from the reach of the plaintiff and other creditors defrauded. The defendants pleaded, not guilty.</p> <p>On the trial, December 19, 1885, it appeared that Cornelius Cronin was the father of John H. Cronin. The father in 1870 was the owner of much property, real and personal, was in excellent credit, and engaged in the business of store-keeping, tanning and farming. In August, 1870, he gave his son a piece of real estate, worth several thousands of dollars, and in 1872 made him an equal partner in the business of the store, the partnership continuing till 1879, when it was dissolved. The material facts out of which the controversy arose are sufficiently shown in the charge to the jury which in part was as follows:</p> <p>This is an action on the ease brought by Michael Collins against Cornelius Cronin and John H. Cronin in which the plaintiff seeks to recover damages for a conspiracy between John H. and Cornelius Cronin to hinder, delay and defraud the creditors of Cornelius Cronin.</p> <p>The plaintiff in this ease is a creditor of Cornelius Cronin, and he was such at the time of the acts complained of and at the time of the alleged conspiracy. The nature of this action makes it proper, and, as we think, our duty to instruct you first with reference to the rights of creditors; to instruct you ■as to what constitutes a conveyance or conveyances fraudulent as to creditors. If you understand the rights of creditors as against their debtor and their relations to each other you will better comprehend and understand the instructions which we shall give bearing directly upon the issues involved in this case.......In this case, as we have stated, a conspiracy is charged between these two defendants. In other words, it is alleged that they combined and agreed to hinder and delay the creditors of Cornelius Cronin in the collection of their debts; that that was the intent with which they acted; that the purpose which animated them in'the transactions to which we shall shortly allude, was to defraud these creditors.</p> <p>[It lies upon the plaintiff to show the conspiracy charged, to make, it out to your satisfaction by the weight of the evidence in the case; and when the plaintiff shall have satisfied you by Ms evidence and the weight of it that these parties did conspire and agree to cheat and defraud the creditors of Cornelius Cronin, and that in the execution of that conspiracy this plaintiff, who was a creditor of Cornelius CroMn, was injured, then the plaintiff will be entitled to receive a verdict at your hands for such injury as you shall find he has sustained.]3</p> <p>We may say to you here that as we understand the case the only confessions of judgment by Cornelius Cronin which are called in question and claimed to be the result of a conspiracy,, and to be fraudulent, are those which were given to John H. Cronin; and the only conveyances made by Cornelius Cronin at any time which are assailed by the evidence in this case, or against wMch a charge of fraud is made, are the conveyances that were made to John......</p> <p>[You come then to the inquiry whether the acts and conduct of Cornelius and John H. Cronin in their business, together with any declarations which may have been made by them, satisfy you of the existence of a conspiracy between them to defraud the creditors of Cornelius Cronin.]* One of the matters in the evidence upon which we understand the plaintiff to rely to some extent to support this allegation of a fraudulent conspiracy, is the conveyance by old Mr. Cromn to Ms son John on the 28d of August, 1870, of the hotel property and tenement house, or rather of the property which is spoken of as descended from the uncle James. TMs is the only conveyance from Cornelius Cronin, as we recollect the evidence, that is called in question. Then the matters about which the main contention in the case hangs are those coupled with the dissolution of the partnership which once existed, or which were at or near that time. We mean the giving by Cornelius Cronin to John H. Cronin of certain notes, upon which John H. Cronin subsequently entered judgments against his father and made sale of real estate. Now in regard to these matters which are called in question — in their order— does the evidence satisfy you as to the character of this transaction in 1870, the conveyance of this house and lot? It is claimed on the part of the plaintiff that Cornelius Cronin had the title to the property and that he conveyed to the son without consideration. Thus far that claim is true, and that conveyance may have been fraudulent as to then existing creditors of Cornelius Cronin, provided that he did not have and retain in his hands ample means with which to satisfy all his indebtedness. Evidence has been given before you on the question of Cornelius Cronin’s means at the time of this conveyance in 1870, and they claim to have shown by their evidence that Cornelius Cronin at that time was in possession of large means, that he had ample property with which to satisfy every obligation that was against him, and they claim therefore that he had the right to make this conveyance to his son even as a gift. That claim is true, as we have already intimated in the statement of the general principle, provided the theory is true that he did have the means to discharge his indebtedness at that time. Was there in August, 1870, any ■ confederation or combination to cheat and defraud the creditors of Cornelius Cronin? John H. Cronin testifies concerning this deed, that his uncle had expressed an intention to convey this property to him, that at one time a deed was made out, but it was not delivered, and he died without having made and delivered the deed to him. The property then descended to the brother, Cornelius Cronin, subject to the rights and interests of James’ widow in it. It seems that Cornelius Cronin paid some twelve hundred dollars and bought out that interest and then conveyed the property to John H. Cronin, as he testified, one of the purposes being in order to carry out the intentions of the uncle. There is not so much contention with reference to this conveyance as to the confessions of judgments. The bulk of the evidence in the cause clusters about them, but we say, in passing, that when that conveyance was made to John H. in August, 1870, under the circumstances exhibited in the evidence, he acquired an honest title to that property, provided his father retained ample means with which to discharge all his existing indebtedness ; and that he owned it in such case just as perfectly against the whole world as- he would if he had purchased it with his means. His title in that case depends upon the fact to which your attention has been directed. Had the father, •when he made this conveyance, ample means to discharge his indebtedness? If he had, John II. Cronin became the owner of this property and entitled to hold it as the perfect owner.</p> <p>We now come to these judgments. Early in 1879 the records show that judgments were entered in this court in favor of John H. Cronin against Cornelius Cronin- — -several judgments. These judgments were entered upon notes which had been given by the father to the son some time previous, most of them a short time previous to the entry of judgments upon them. Upon these judgments, or some of them, John H. Cronin caused to be issued executions, by virtue of which certain real estate of his father was seized and sold at sheriff’s sale, and he became the purchaser of the most of it, according to our recollection of the evidence. If those judgments were honest judgments, given for an honest purpose, simply to secure that which the father owed the son, then any sale made by the son upon and by virtue of these judgments passed the title, and it is of no consequence whether that property brought at sheriff’s sale a high or low price. That is of no consequence in the case, provided those were honest judgments. So that in our view it becomes of the first importance in the right determination of this case for the jury to inquire as to the consideration of these judgments and as to the purposes for which they were given. Were they given for property which John owned? We speak of the hotel property and tenement house and certain lands which John had a title to and sold to his father. Was it a fair, ordinary transaction for which a certain note was given ? If it was, that note was good and valid. And so as to all of these notes on which judgments were entered and upon which these sales were made, did they represent an indebtedness of the father to the son?</p> <p>That is the first inquiry, and it is important to know that in this case — -did they represent an indebtedness from the father to the son? If they did, were they given to secure that indebtedness with a view and intention of protecting the son in his just claims; or were they given with a purpose and intent — given by the father and received by the son — with the intent to defeat, delay and obstruct the creditors of Cornelius Cronin? As before said, it seems to us that much must depend upon the consideration of the notes upon which these judgments were entered, and we refer to this because there is quite a large volume of evidence in the cause. It is not our design to refer to tl;at evidence in detail; it is sufficient we thipk for us to make a brief reference to the claims of the respective parties concerning the consideration of these notes. Upon the one hand, it is claimed in behalf of the plaintiff that these notes were given without consideration; that Cornelius Cronin was not indebted to John in these amounts, and that the purpose for which they were given was to defraud the creditors of Cornelius Cronin. On the other hand, it is claimed that these obligations refer to an honest existing indebtedness from the father to the son and were given for the purpose of protecting and securing the son in his just claims. Now, if the claim of the plaintiff is the true claim, he has a cause of action here; he has a standing and a right to recover. If the claim of the defendants is the true one, the plaintiff has no standing in tiffs action.</p> <p>We have mentioned incidentally one of the judgment notes — the note spoken of as the $7,000 note; that the greater share of the consideration of that note, as testified to by the defendant, John H. Cronin, comes from the conveyance and sale by him to his father of this hotel property and tenement house and some other property. Is the transaction truly stated? Was this property held by John, had he the title to it, and did he sell it to his father in the regular course of business and take from him his obligations for the price agreed upon? Was it a fair, honest transaction between them? If it was, the judgment is valid.</p> <p>[Another judgment about which there is considerable evidence and considerable contention is the largest judgment,, the $9,000 judgment. Considerable care ought to be exercised by you in passing upon the claims of the contending parties concerning that judgment. The claim of the defendants with reference to it is substantially this: that in 1872, some time about June, John H. Cronin entered into partnership with his father in merchandising; that this partnership continued down until about the time these notes were given, when it was dissolved. His claim is, that at that time it was ascertained that his father was indebted to the firm of Cornelius Cronin & Son in something over $9,000, for money and goods which he had drawn from the firm and with which he was charged; that John H. Cronin, the other partner, was indebted to the firm and had drawn from it somewhere in the neighborhood of $600, and that upon examination of their affairs they found them to be in this condition: that there was upwards of $9,000 owing by the firm, and that the entire assets of the firm, including this $600 due from John and the $9,000 or more due from Cornelius Cronin to it, amounted to the neighborhood of $13,000, so that there would have remained,if the indebtedness was paid, somewhere in the neighborhood of $4,000 assets. For this indebtedness both John H. and Cornelius Cronin were liable. The claim of the defendants here is that an arrangement was made by which they dissolved and John H. took upon himself the burden of discharging this firm indebtedness, and that this note of $9,000, or thereabouts, represents the firm indebtedness. In other words, John assumed to pay the firm debts and his father gave him his obligation for that sum. Now, if that is the true history of the case, if the transaction is, so far as respects that note, such as is detailed by John, it would seem to be a valid obligation and have a sufficient consideration to support it, and the amount of the obligation would not exceed the consideration. It would be a lawful and proper transaction. Was that the true situation ? To corroborate himself in this claim as to the amount of indebtedness of his father to the firm, they bring here the firm books and offer them in evidence, and you remember that they occupied the time of the court and jury well towards a day, more than half a day, in the reading of the items of this account; and then upon the suggestion of the court it was, for the purpose of saving time and in the belief that the justice of the cause would be as well reached in that way as any, agreed or rather admitted that the books of the firm show upon their face an indebtedness from Cornelius Cronin to the firm of this amount and that the footings were correct, etc. That agreement was made to reach the obvious result of the reading of the accounts, which would have occupied us perhaps a half a day more. The same result would have been reached. These books are relied upon to some extent as corroborative of the claim of the defendants as to the consideration of that note, as well as of the testimony of John H. Cronin. There are some other notes that have been mentioned, and with respect to the consideration of them some evidence has been given. We leave these questions to your recollection under the general principles which we have stated. We deem it necessary only to call your attention to those mentioned, or the large judgments. The same principles apply to the one that apply to the others.] 4</p> <p>The counsel for the contending parties have presented some 'points in writing which it becomes our duty to answer, and we now proceed to that duty......On behalf of the defendant we are asked to instruct you on the following:</p> <p>1. That fraud is never to be presumed, but must always be proven by evidence that is clear and satisfactory to the jury. And this action is founded upon the alleged fraud of the defendants. In order that the plaintiff can recover in this action they must find that the evidence establishes by satisfactory proof the fact that the defendants were guilty of fraud, and this must be true of both defendants, as both John H. and Cornelius Cronin must have intended a fraudulent act in order to entitle the plaintiff to recover.</p> <p>Answer: We think this a correct proposition and we affirm, it.1</p> <p>Áfter further instructions, upon the subject of damages, the jury found in favor of the defendants, and a motion for a new trial being refused, the plaintiff took this writ assigning for error:</p> <p>1. The answer to the defendant’s point.1</p> <p>2. The part of the charge embraced in [ ] a</p> <p>3. The part of the charge embraced in [ ] 3</p> <p>4. The part of the charge embraced in [ ] 4</p>

<p>ERROR TO THE COURT OE COMMON PLEAS NO. 2, OE PHILADELPHIA COUNTY.</p> <p>No. 76 July Term 1886, Sup. Ct.</p> <p>In the court below, William P. Wernwag and T. Russell Dawson, trading as Wernwag & Dawson, were plaintiffs, and the Philadelphia, Wilmington & Baltimore R. Co. were defendants, in a case stated as follows:</p> <p>And now, February-, 1886, it is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the court in the nature of a special verdict.</p> <p>The defendants are common carriers of goods between Philadelphia, Pa., and Washington, D. C. William P. Wernwag and T. Russell Dawson, trading a's Wernwag & Dawson, are dry goods commission merchants, doing business in the city of Philadelphia. The firm of E. F. Witmer & Co., of Baltimore, were the plaintiffs’ agents for the sale of their goods in the city of Washington, D. C. The said firm of E. F. Witmer & Co. employed one Wilbur F. Murphy to take orders for plaintiffs’ goods in Washington, D. C. The said Murphy visited one Leopold Behrend, doing a dry goods business in said city, and took an order for certain goods of plaintiffs. This order was entered by the said Murphy on one of the blanks of E. F. Witmer & Co., and was transmitted to the plaintiffs. When it was received by them it read as follows:</p> <p>Baetimoee, Nov. 3d, 1883.</p> <p>Messrs. Ween wag & Dawson,</p> <p>Philadelphia:</p> <p>Ship to L. Behrend,</p> <p>Washington, D. C.,</p> <p>By Fast Freight.</p> <p>Terms 5 | 30 — 30 days extra dating.</p> <p>4 i .5</p> <p>&c., &c., &c.</p> <p>(Signed) E. F. Witmee & Co.</p> <p>When plaintiffs received this order, for the purpose of ascertaining the financial responsibility of L. Behrend, they examined the volume of commercial reports in their possession, which purported to give a full list of merchants doing business in Washington, D. C., but the name of L. Behrend was not oii the list. They had, however, previously sold goods to one A. Behrend, doing a dry goods business in said city of Washington, who had been satisfactory to them "as a customer in every respect; and in consequence of not finding the name of L. Behrend in the commercial report, they supposed that the salesman had made a mistake in entering the name of the X>urchaser on the order, and had written L. Behrend instead of A. Behrend, intending to write the latter.</p> <p>Being of this opinion, the plaintiffs determined to ship the goods ordered, to A. Behrend, and on November 5, 1883, shipped to him by the defendant railroad five pieces of black cashmere and one piece of worsted, of the total value of $242.37. The goods were charged to A. Behrend in the books of the plaintiffs; the box was marked “A. Behrend, Washington, D. C.;” the bill of lading or receipt given for the goods by the defendant describes the goods as marked A. Behrend, and a bill was made out by plaintiffs in the name of A. Behrend, and was sent by post addressed to A. Behrend.</p> <p>The firm of E. F. Witmer & Co. were agents of the plaintiffs only for the purpose of soliciting orders for goods. The plaintiffs reserved to themselves the right to determine, on the receipt of an order from E. F. Witiner & Co., whether or not they would ship the goods ordered, to the party ordering the same; and the said E. F. Witmer & Co. had nothing whatever to do with the delivery of the goods shipped on orders forwarded by them. That was controlled entirely by plaintiffs.</p> <p>When thp package of goods aforesaid arrived in Washington over the line of the defendant’s road, it was claimed by the said Leopold Behrend. The said A. Behrend, to whom the plaintiffs supposed they were selling the goods, and whose name was on the box, was not then in business in Washington, though he was living there at the time.</p> <p>Before delivering the goods to the said Leopold Behrend, the agent of the railroad company defendant inquired of the said Wilbur F. Murphy, the agent who had taken the order, whether he had sold any goods to Leopold Behrend, and what class of goods they were; and after Murphy had said that he had sold goods to Leopold Behrend, and had described them, -the agent of the defendant delivered them to Leopold Behrend. The goods so delivered were the same goods which plaintiffs had shipped to A. Behrend as aforesaid.</p> <p>After the plaintiffs had delivered the said goods to defendant for transportation on November 5, 1888, they heard nothing concerning them until they received a notice, dated January 14, 1884, that Leopold Behrend had assigned hi/j property for the benefit of his creditors, and requesting them to forward a statement of then claim to his assignee.</p> <p>The assigned estate of the said Leopold Behrend never paid any dividend to the general creditors, and the goods so shipped by them and delivered by the defendant to the said Leopold Behrend were totally lost to plaintiffs.</p> <p>If the court be of the opinion that on the above facts their judgment should be for the plaintiffs, then judgment is to be entered for plaintiffs for $242.37, with interest from November 5, 1883; but, if not, then judgment to be entered for the defendant, the costs to follow the judgment, and either party reserving the right to sue out a writ óf error.</p> <p>The judgment of the court was for the defendant, no opinion being filed. Thereupon the plaintiffs took this writ, assigning for error the entry of said judgment.</p>

<p>When, by .the laws of another state, the transcript of a judgment of a justice of the peace filed in a Court of Common Pleas of said state is to be treated as a judgment of said court, the duly authenticated record of said court, when sued upon in this state, is entitled to the same faith and credit as though the judgment had been originally obtained iu said foreign court.</p>

No. 172 January Term 1887, Sup. Ct. To the Court of Quarter Sessions of Philadelphia county, on December 23,1885, a board of viewers appointed to view Magnolia avenue, in the Twenty-second ward of Philadelphia city, and to determine whether or not said street be required for public use, made a report which after matters introductory was as follows: The viewers, from the evidence produced, find that Magnolia avenue is a street duly located upon the public plan, called Plan…

<p>ERROR TO THE COURT OE COMMON PLEAS OE LUZERNE COUNTY.</p> <p>No. 430 January Term 1886, Sup. Ct.; court below, No. 285 November Term 1882, C. P.</p> <p>This was an action in assumpsit by George D. Sylvius against John Kosek, to recover the contract price for the erection of tenement-houses. The pleas were non assumpsit, payment with leave, etc., tender.</p> <p>The plaintiff, Sylvius, made out his case in chief by evidence „of performance of the following agreement:</p> <p>This agreement, made this 1st day of June, A. d. 1882, between Geo. D. Sylvius of the city of Wilkes-Barre and John Kosek of the same place, Witnesseth that for a consideration hereinafter named that the above named Geo. D. Sylvius agrees to 'furnish all material and labor necessary and erect or build eight small tenement houses, 16 ft. by 24 ft. in size and 16 ft. high, with rough hemlock board enclosing and battined with 1 by 3 hemlock battins. With surfaced hemlock (cheap or plain) cornice. With a one story addition or kitchen in the rear with a lean-to roof. Said buildings to have ten windows each with 8 by 10, 12-light windows each. Also two outside doors 2 ft. 8 in. by 6 ft. 8 in. and five inside doors 2 ft. 6 in. by 6 ft. 6 in. Also one flight of stairs each. Also to be furnished with -two chimneys each.</p> <p>In consideration of which the above named John Kosek agrees to well and truly pay to the said Sylvius the sum of three hundred and twenty ($320.00) dollars for each and every house until the eight houses have been paid for, in manner and time as follows: One half of the whole amount (which sum is twenty-five hundred and sixty ($2,560) dollars) or twelve hundred and eighty ($1,280) dollars when the fifth house is completed and the balance in ninety days thereafter.</p> <p>Witness our hands this 1st day of June, 1882.</p> <p>[Signed] John Kosek,</p> <p>Geo. D. Sylvius.</p> <p>On the part of the defendant it was sought to defeat the recovery of the contract price, upon the ground that a material part of the verbal agreement was • fraudulently omitted to be inserted in the written agreement to be executed, and that, in order to complete the buildings as was contemplated by the true contract between the parties, the defendant had expended $1,050, which he claimed should be deducted from the plaintiff's claim.</p> <p>At the close of the case on the evidence the plaintiff renewed a motion, which he had previously made, to strike out all the testimony that had been offered for the purpose of modifying by parol the written contract that had been put in evidence, for the reason that the defendant had utterly failed to connect the alleged representations of Roushey in any way .with Mr. Sylvius and thereby had failed to produce any evidence of fraud and had not filled their offer.</p> <p>The court: We are of the opinion that this case presents-a question to be submitted to a jury with proper instructions from the court, and is not a case to be taken from the jury, entirely, by the court. Therefore the motion to strike out all the evidence of the defendant in regard to the alleged fraud is denied.8</p> <p>- The nature of the defence made and the character and effect of the testimony to support it, sufficiently appear from the charge to the jury and the answers to the plaintiff’s points by Stanley Wood wand, J.:</p> <p>This is an action of assumpsit brought by George D. Sylvius against John Kosek, to recover the contract price for furnishing the materials and doing the work in the construction of a row of tenement houses, eight in number. The claim of the .plaintiff in this suit is founded upon a written contract, which has been put in evidence, read in your hearing, and examined by you. Therefore I do not read it now. The plaintiff having shown this contract, and proved that he has complied with the .terms of it, and has completed his obligations under it, and ftu’ther, that he has demanded from the defendant payment, according to its terms, and that said payment has not been made, now asks from you a verdict for the amount due, with interest. Of course if the.case rested here, the plaintiff would undoubtedly be entitled to a verdict for- the full amount of the contract. The defendant, however, claims that the verdict should be for a less sum; and to establish this claim undertakes to prove certain facts which he claims amount to a •defence against a portion of the money.</p> <p>■ Under the evidence of the defendant, it seems that he was first introduced to the plaintiff, Sylvius, as a builder, by a man named Roushey; that shortly after this introduction Sylvius and Kosek came together, and an agreement was arrived at between, them for the erection of this row of houses. It is alleged by the defendant that part of this agreement was that these houses were to be finished with what may be called a wainscoting or ceiling, in lieu of plastering, similar to certain houses owned by Mr. George Parrish, and located near what are known as the Empire mines. It was further understood and agreed that the plaintiff was to put this, agreement in writing and send it up to the defendant to be executed, and further, that security was to be given to the defendant for the faithful performance by Sylvius of his duties under the contract. On the following day, Roushey came to the plaintiff’s store or near there, bringing the contracts with him and another paper, known in the case as the guarantee. They repaired to a saloon to transact the business. The defendant says he asked Roushey to read the contract to him as he was not sufficiently familiar with English writing to read it himself; that Roushey did read it, and that he, Kosek, then and there signed it, took it home and put it in his safe. The plaintiff proceeded with the work, and about the time the first of these houses was finished, Kosek discovered that the walls were not being ceiled or wainscoted as he supposed the contract provided for. He then ordered the plaintiff to stop work on the ground that it was not being done correctly, and offered to pay for what had already been done. Plaintiff, however, did not stop work, but went on and completed all of the houses, as he alleged, according to the contract, in a similar manner to the first one. Kosek further claims that it cost him some $1,050 after-wards to have these houses wainscoted or ceiled, as he intended to have them originally. Mr. Boyle is called also for the defendant, and he corroborates the testimony of Kosek to some extent, more especially in regard to a conversation between Kosek and Sylvius prior to the making of the contract, this conversation having reference, among other things, to the lining or ceiling of the houses, which ceiling was to be, according to this witness’s testimony, similar to that of Mr. Parrish’s houses. He further states that Sylvius said he would build them in this way if he, Kosek, wished it.</p> <p>The plaintiff in answer to this evidence on the part of the defendant, calls in rebuttal Matthew Roushey, who states that he took the contract and papers to Kosek, but denies that Kosek asked him to read the contract, denies, that he did read it to him, or that he has ever read it at all himself. He further states that Kosek, when they met, simply inquired for pen and ink, and apparently without reading the contract at all, affixed his signature to it. Mr. Ryman also is called for the purpose of contradicting Mr. Kosek in reference to Mr. Ryman being present at a certain conversation on this subject which the defendant testified to.</p> <p>Now, gentlemen, so far as the law of this case is concerned, it is the duty of the court to explain it to the jury, and we say to you as matter of law that where parties without any fraud practiced, or without any mistake, have put an agreement in writing, that writing is to be considered their solemn contract, and to express their meaning on the subject matter involved. It is further our duty to say to you that as a general rule it is not admissible to contradict or vary the terms of a written contract or agreement by parol or verbal testimony. This is the general rule. It has certain exceptions, however. In cases of fraud, accident or mistake, the rule is different. Wherever equity would set aside or reform an instrument on either of these grounds, then parol evidence is admissible to contradict ■or vary the terms of the agreement as it is written. But we say further, in the same connection, that the evidence of fraud, where fraud is alleged, should be clear, precise, distinct and indisputable; that fraud is not to be presumed, but must be proven like any other fact in the case, by the evidence and the weight of the evidence. Therefore we say to you in the present case, that if you believe this contract in evidence was prepared according to agreement, and John Kosek signed it, and the work was done agreeably to its terms, then Kosek having accepted and taken possession of these houses upon their completion, should pay for them the contract price, and your verdict should be for the plaintiff for the full amount of the contract price, with interest, a statement of which will no doubt be furnished you by the counsel. But on the other hand we say to you, that [if you believe from the evidence that the terms of the agreement between Sylvius and Kosek were that these houses were to be wainscoted or ceiled in the manner described; that Sylvius was to put this agreement in writing; that he did not write that provision in the agreement in regard to the ceiling or wainscoting of the houses, and sent the papers by Roushey, together with the guarantee paper, to be signed; that Kosek, being unable to read English, asked Roushey to read the contract to him; that Roushey read it to him, not as it was written, but as if it contained a clause in regard to the ceiling, and that Kosek was thereby deceived, and signed the paper under a mistake as to its contents, and was thus the victim of a fraud; then it was not his contract, and from the verdict which the plaintiff would otherwise be entitled to, should be deducted what it has fairly cost to put in this ceiling or wainscoting as shown by the evidence.]6 As we understand it, the law is this: Where certain facts are misstated to a person to induce him to sign a paper, the contents of which paper he knows, he may, under certain circumstances, be held responsible and liable. But that is a different case from one which rests on a misrepresentation of the contents of a paper made to an illiterate person, or a person who cannot read the language.</p> <p>What else we have to say to you in this case can be said in connection with the points submitted by the plaintiff.</p> <p>1. If the defendant was unable to read the contract in suit, it was his duty to have it read for him, and a failure on his. part so to do would be such negligence as would make him liable under the contract.</p> <p>That point we affirm.</p> <p>2. Before the defendant can be relieved of his obligation under the contract declared upon, he must show clearly that a fraud was committed on him by the plaintiff at the time of its. execution.</p> <p>That point we affirm.</p> <p>8. In order to bind the plaintiff’ by the alleged representations made by Roushey at the time of the execution of the written contract, it must be shown affirmatively that Roushey had authority from the plaintiff to make such representations, and the burden of proof in this case is on the defendant, who seeks to take advantage of those representations. The simple testimony that Roushey was authorized to take this contract to Kosek to be signed, is not sufficient evidence to establish that authority. There being no other evidence in this case tending to establish or prove such authority, the jury must find as matter of fact that none existed, and the plaintiff Sylvius is not bound by the representations alleged to have been made by Roushey.</p> <p>We cannot say to you, gentlemen, in the language of the point, that there is no other evidence in the case than that alluded to. In its length and breadth we cannot affirm this point; it is therefore disaffirmed.9</p> <p>4. It being the uncontradicted evidence in the case that Roushey’s authority was to deliver the contracts to Kosek, and that if read at all such reading was at the request and by the direction of Kosek, this constitutes and makes Roushey the agent of Kosek, and nothing that may have been said or done by Roushey so acting can in any way bind the plaintiff.</p> <p>That point we decline to affirm. For further answer we refer to the contents of the general charge.10</p> <p>5. The check offered in evidence was not a valid tender of payment to the plaintiff, and must not be regarded as such by the jury.</p> <p>That point we affirm.</p> <p>With these instructions, gentlemen, we leave the case in your hands.</p> <p>The plaintiff excepted to the charge of the court and the answers to his points, under which charge and answers the jury found for the plaintiff the sum of $1,799.92, being the contract price less $1,050 paid by the defendant to have the houses wainscoted. Thereupon the plaintiff took this writ and, so far as they relate to the questions passed upon in this court, the assignments charged as error:</p> <p>6. That part of the charge embraced in [ ] 6</p> <p>8. The refusal to strike out the evidence offered by defendant to vary- the written contract.8</p> <p>9. The answer to the plaintiff’s third point.9</p> <p>10. The answer to the plaintiff’s fourth point.10</p> <p>11. The failure to direct a verdict for the plaintiff for the full amount of the contract price.-</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE LUZERNE COUNTY.</p> <p>No. 237 January Term 1887, Sup. Ct.; court below, No. 43 March Term 1885, C. P.</p> <p>This was an action of trespass q. c. f. by Joseph Knowles and Amelia Knowles, his wife, in right of the wife, against the Erie & Wyoming Valley R. Co., to recover damages for injuries done to the real estate of the wife. Joseph Knowles died before the trial and his death was suggested upon the record.</p> <p>In 1883 Joseph and Amelia Knowles occupied a dwelling upon a lot in Marcey township, for injuries to which dwelling and lot the defendant company was charged, and a dwelling upon air adjoining lot was occupied by Mrs. Jane Evans. The defendant located its road across these two lots, and in July, 1883, laid down its first main track and one side track, passing immediately in the rear of the plaintiff’s dwelling. Mr. and Mrs. Knowles continued to reside on the lot until 1885, the ground occupied by the dwelling ban y undisturbed by the railroad track. In that year the defendant company laid its second main track, and, to enable it to do so, attached an engine to the rear portion of the plaintiff’s house and drew it aside out of the way, leaving between it and the main part, on the exposed side, an opening about eleven feet wide. Carpets and clothes were injured, and potatoes were left exposed and were frozen. The railway made a cut through the lot four or five feet deep. Under the pleadings and evidence the plaintiff sought to recover for all these injuries.</p> <p>The plaintiff in her own behalf, as evidence of title, testified that in 1866, not quite 21 years before the trial, her mother, Mrs. Elizabeth Evans, — ■“ she gave me this lot and told me to build on it; ” that her mother had been in possession of it four or five months before she gave it to her; that she with her children by a former husband had built the dwelling with about $140, the proceeds of property which came to her from the former husband, and they had fenced it and planted out about twenty trees, and that when the house was erected the land was open, unfenced. Stephen Jones, the plaintiff’s son, testified that he had heard his grandmother say many times that she had given the lot to Ms mother. Jane Evans, the occupant of the adjoining lot, a granddaughter of Mrs. Elizabeth Evans, testified to the same effect. Mrs. Elizabeth Evans, still living, but over eighty years of age, was not called.</p> <p>On the part of the defendant, it was shown that in 1883, desiring to locate its road over the two lots and learning that Mrs. Elizabeth Evans claimed to own both of them, undér a contract of sale, possession thereunder and part payment of purchase money, and ascertaining from the owners of the legal title that they would release, negotiated with and in consideration of $800 obtained from her a deed to the company, dated June 26,1883, and acknowledged July 5,1883, for the surface of both lots. On the day of the date of this deed Joseph Knowles executed and delivered to the company a sealed agreement reciting that he “is in possession of part of certain premises conveyed to the said company by Elizabeth Evans, the owner of said premises, by deed bearing even date herewith and intended to be forthwith recorded, and is willing that the said company shall have and take possession thereof ■upon reasonable notice*” agreed in consideration of one dollar to deliver possession and remove the buildings within sixty-days after notice so to do, and; on his failure, that possession might be recovered by proceedings before a justice and the buildings removed at his expense. Having obtained said deed and the agreement,,the company entered upon the lots and laid their main and side tracks. Further, that in the negotiations by the company’s agents with Mrs. Elizabeth Evans, resulting in the deed of June 26, 1888, the plaintiff was present at most of the interviews and did not claim to own the lot; that she said they ought to give her mother more money for it; that no objection was made by Mr. or Mrs. Knowles, when the company entered to lay their first track, and that Mrs. Knowles was present when the agreement to deliver possession was obtained from her husband.</p> <p>Under the evidence on both sides as to title, its character more fully indicated in the opinion of this court, and evidence as to damages, the defendant, inter alia, asked for instructions by their fourth point that under all the evidence the plaintiff could not recover. The court, Stanley Woodward, J., declined to affirm this point, but submitted the case upon all the evidence to the jury. A verdict for the plaintiff for 1500 was returned, and judgment being entered the defendant took this writ assigning for error the refusal to affirm said point.</p>

<p>ERROR to the COURT OE COMMON PLEAS OF MONTGOMERY COUNTY.</p> <p>No. 102 January Term 1886, Sup. Ct.; court below, No. 66 June Term 1883, C. P.</p> <p>This was a scire facias sur mortgage issued ou April 24, 1883, by Mira M. Brownback and Lewis C. Brownback, administrators of George Grubb, deceased, wbo was assignee of Jacob Welker, administrator of John Welker, deceased, against John Walter, with notice to George Ozias, terretenant. The plea was, payment. On September 24, 1885, judgment was entered by confession against the administrators of John Walter, then deceased, for $1,309, to be levied and collected out of the mortgaged lands, and the cause proceeded upon a defence made by the terre-tenant, in which the following facts appeared:</p> <p>On April 1, 1829, John Walter executed a mortgage to John Welker for $1,000, on certain real estate in Marlborough township, containing 66 acres and 55 perches, which mortgage was recorded. On April 9, 1855, this mortgage was assigned to one George Grubb, but the assignment was not then entered of record. On September 30, 1865, John Walter having died still seized of said land, his administrators, under order of the Orphans’ Court for the payment of debts, the said mortgage debt being scheduled in the petition, sold said land to Jacob Hartzel, which sale was confirmed, and deed ordered, executed and delivered to the purchaser. On March 11, 1867, the administrators of John Walter filed a final account in which credit was taken for the said mortgage debt as paid by them, which account was confirmed. On October 29, 1873, Jacob Hartzel conveyed said land to Israel Wood, and in this deed was the following clause: “ Subject, nevertheless, to the payment of a certain mortgage of $1,000 unto George Grubb, of the county of Chester, and all interest accruing due thereon from the first day of April lilt.” On September 24, 1874, Israel Wood conveyed the same to Edward Mitchell, without charge, and took a purchase money mortgage for $3,250. This last mortgage on April 26, 1875, was assigned by Israel Wood to J. W. Sunderland, who on April 28, 1875, assigned it to George Ozias. In 1878, George Ozias obtained judgment in a scire facias upon said purchase money mortgage, issued a levari facias thereon, and at a sheriff’s sale became the purchaser of said land, receiving a sheriff’s deed acknowledged in open court on September 7, 1878. On April .10, 1883, the assignment of the mortgage against John Walter to George Grubb was put on record, and this suit brought the same month.</p> <p>On the trial, in addition to the foregoing facts, testimony for the plaintiff showed that interest had been regularly paid to George Grubb by Jacob Hartzel, from 1867 to 1878, and by Israel Wood from 1874 to 1881. Jacob Hartzel testified that he bought the land from Walter’s administrators at $51 per acre, and paid all except the $1,000 mortgage, about which he had an agreement. One of the administrators of John Walter testified that he had sold the land to Jacob Hartzel with the understanding that the mortgage was to remain, and that the debt due thereon was not paid by the purchaser. This testimony was admitted under the objection by defendant that it was not accompanied with notice to him.</p> <p>The court charged the jury, inter aha, as follows :</p> <p>[Now when Ozias became the purchaser at sheriff’s sale, unless he had notice of the condition of this mortgage, he had a right to be governed by the record; when he looked to that he saw that there had been a judicial sale, the operation of which was to discharge the mortgage. And when he looked, if he did, to the deed of Hartzel to Wood, he found mention of a mortgage of $1,000 to George Grubb; and if he looked for a mortgage upon record of that description he failed to find it, for there was no mortgage to George Grubb. If George Grubb’s assignment had been recorded at that time it might be effectual in putting him upon that inquiry which would lead to the knowledge of an existing mortgage.] a But the assignment to Grubb was not recorded until afterwards, and therefore it was no notice to Ozias. [Guided by the record as he found it, therefore, Ozias had a right to conclude that the mortgage under which the property was sold at sheriff’s sale was the first mortgage upon the premises, and that the mortgage in question had no existence.] 3 [There is no evidence in this cause of any actual notice to Ozias from any other quarter than what might be inferred from the record to which I have called your attention; and therefore the court cannot submit to you the question as to whether Ozias had actual notice.] 4 The plaintiff offered evidence to show that the Orphans’ Court sale, instead of being a public sale as the record purported, was actually a private sale, and if so that was an irregularity which would have set aside the sale upon exceptions filed to it. But Ozias had a right to assume that the record was true, and that the sale was according to law, for it had been returned as such, and as such confirmed by the court. I charge you therefore, that that evidence was immaterial and not competent to discredit the record. [Under all these circumstances therefore, the court is constrained to charge you in this case as a matter of law that your verdict should be in favor of the defendant.]1—</p> <p>On verdict for the defendant and judgment thereon, the plaintiffs took this writ assigning for error:</p> <p>1-4. The parts of the charge embraced in [ ]1 [ ] 3 [ ]3 []4</p>

No. 363 January Term 1886, Sup. Ct.; court below, No. 876 September Term 1874, O. P. Tbe action was begun by summons in assumpsit on August 24, 1874, by Daniel Sbepp and J. B. Hursh, trading as Daniel Sbepp & Co., against tbe First National Bank of Tamaqua.

<p>ERROR TO THE COURT OE COMMON PLEAS OE CLINTON COUNTY.</p> <p>No. 111 July Term 1886, Sup. Ct.; court below, No. 27 February Term, 1882.</p> <p>This action was brought December 24, 1881, by John W. Wertz against Halsey Arnold and Simeon Summerson, in Trespass q. c. f., claiming treble damages under the act of March 29, 1824, 8 Sm. L. 283, for cutting timber on lands, the ownership of which was claimed by the plaintiff. Before the trial the plaintiff died and his administrator, David R. Pfoutz, was substituted. The plea was not' guilty.</p> <p>The plaintiff’s title to the locus in quo was under a warrant granted to Simon Pfoutz on April 25, 1837, for 400 acres in Chapman township, Lycoming county, now Leidy township, Clinton county. A survey was made on this warrant on December 18, 1837, by Robert Hamilton, deputy surveyor, on which was noted an interference with a survey on a warrant to John Baird. On September 28,1840, the Board of Property ordered a re-survey which was made by the county surveyor on November 21, 1865. Under this warrant two patents were subsequently issued: one to John W. Wertz, dated December 26, 1865, for 195 acres and 134 perches, and one to A. C. Noyes, executor of Jacob W. Pfoutz, deceased, dated August 4, 1870, for 219 acres and 9 perches. On August 7, 1869, before he obtained his patent, A. C. Noyes, as executor of said Jacob W. Pfoutz, contracted to sell the land covered by it to John W. Wertz, the plaintiff, and Taylor Wertz, as soon as the sale should be confirmed by the Orphans’ Court, the agreement being executed by A. C. Noyes, executor, etc., of the one part, and John W. Wertz of the other part.. In July, 1884, on the petition of C. R. Noyes, administrator d. b. n. c. t. a. of Jacob W. Pfoutz, the Orphans’ Court made a decree authorizing him to make a deed to David R. Pfoutz, administrator of John W. Wertz, for the land described in the agreement, and such a deed was made on October 24, 1884.</p> <p>The defendant claimed under a warrant to David Carskaddon, dated September 8, 1857, for 1000 acres of land in Grove and Leidy townships, which was surveyed on May 24, 1858, by William P. Baird, county surveyor. This survey was returned and accepted December 18,1858, and patent to the warrantee issued therefor, dated July 5, 1870. By an article of agreement, made September 8,1879, the heirs of David Carskaddon, then deceased, sold the timber on said tract to the defendants, who employed said William P. Baird to run the lines for them. The timber they had cut was claimed by the defendants to have been within their own lines.</p> <p>On the trial, before C. A. Mayer, P. J., after evidence, documentary and parol, the plaintiff called Charles R. Noyes. Contract-shown, witness:</p> <p>Plaintiff offers to follow the paper offered in evidence, to wit: The contract between Amos C. Noyes, executor of Jacob W. Pfoutz, deceased, and John W. Wertz, by the testimony of the witness on the stand, showing the payment of the purchase money referred to in the contract.</p> <p>Objected to: (1) Because the contract offered shows it is between said executor of the one part, and John W. Wertz and Taylor Wertz of the other part, and therefore it is incompetent to support this action by said plaintiff alone, and is irrelevant for that reason. (2) The contract shows a tenancy in common in the land described in it between John W. Wertz and Taylor Wertz, and it is not evidence to support an action brought by one of such co-tenants in his name alone.</p> <p>By the court: Objection overruled; evidence admitted and bill sealed for defendants.1</p> <p>The witness testified that the purchase money in full on the contract had been paid, indorsements showing that part had been paid by John W. Wertz and part by his administrator. Taylor Wertz, being sworn, testified that he never knew that his name was connected with the purchase of the tract until this case arose.</p> <p>Plaintiff’s counsel offer the petition of C. R. Noyes, administrator, with the will annexed of Jacob W. Pfoutz, praying the court to authorize a deed to be made to convey lands described in the agreement between the executors of the estate of Jacob W. Pfoutz and John W. Wertz to David R. Pfoutz, administrator of John W. Wertz. Petition is dated May 22, 1884; presented to court, July 7, 1884, accompanied by the order of the court, directing C. R. Noyes, administrator c. t. a. of the last will and testament of Jacob W. Pfoutz, to make, execute and deliver to the administrator of the estate of John W. Wertz in trust for the estate, all lands described in- the body of the petition, being the same lands in controversy.</p> <p>Defendants’ counsel object: (1) Because these proceedings are all after the institution of this suit. (2) Because it is incompetent to show title in the plaintiff subsequent to the commencement of this suit and subsequent to the trespass complained of. (3) It is irrelevant.</p> <p>Plaintiff’s counsel offer deed of Charles R. Noyes, administrator c. t. a. of the estate of Jacob W. Pfoutz to David R. Pfoutz, administrator of the estate of John W. Wertz in trust for said estate, etc., dated October 24, 1884, for the land upon which the timber in controversy was cut; this is for the purpose of showing the confirmation of the title which was in the plaintiff at the time of the bringing of the suit.</p> <p>Defendants’ counsel object: (1) Because these proceedings are all after the institution of this suit. (2) Because it is incompetent to show title in the plaintiff subsequent to the commencement of this suit and subsequent to the trespass complained of. (3) It is irrelevant.</p> <p>By the court: I think it 'would be evidence. I will admit the petition and deed, and seal a bill for defendant.3</p> <p>The defendants in their case in chief showed, inter alia, that after the purchase of the timber in controversy by them, William P. Baird, who had located and returned the Carskaddon warrant in 1858, ran the lines around the tract to enable the defendants to know where to cut to, and followed by testimony that they cut only to said line, and that the timber cut was within the lines of the Carskaddon tract.</p> <p>In his rebuttal case, plaintiff offers to prove by A. K. White, William P. Mitchell and other witnesses, that the lines of the David Carskaddon tract, as shown by the defendants, are not the true lines of the David Carskaddon survey at the point of cutting, but that the said lines are marked on the ground by original line and corner trees, and that the place of cutting is north of said lines and outside of the boundaries of the Carskaddon survey; this for the purpose of rebutting the evidence of the defendants as to the location of the Carskaddon lines upon the ground, and as to the cutting being within the lines of said tract.</p> <p>Defendants object to the above offer, because the return of survey of the David Carskaddon tract, under which they claim, was made more than twenty-one years before the commencement of this suit and up to that time the location of the same, as shown by the said official return, was unquestioned by any one until this suit was brought; that the location of the same, according to said official return, as proven by the deputy surveyor, who located it, covers the timber in controversy and the presumption of the correctness of the return and the location in accordance therewith, has become absolute and is not open to attack.</p> <p>By the court: Objections overruled and bill sealed for defendants.3</p> <p>In their sur-rebuttal case, the defendants offer to prove by William P. Baird, Flavius David and other witnesses, that the marks found on the ground on the line from the Hamilton & Quigley w. o., which is also a corner of the David Carskaddon survey, running south 70 west to a chestnut or chestnut oak, and thence to a hemlock, claimed by plaintiff to be corners of David Carskaddon survey, were never made by William P. Baird, who located said Carskaddon survey, and are not monuments of said survey, and that the line as returned from said white oak north 70 west 84 perches, and from thence north 44 west 54 perches, was the line actually run on the ground when said Baird made the original location of the Carskaddon survey, and was repeatedly recognized as such by John W. Wertz in his lifetime, and that he so represented it to defendants when they were cutting the timber in dispute.</p> <p>Plaintiff objects to the foregoing, because it is offered by the defendants after the plaintiff had closed his rebutting testimony, and is not admissible as sur-rebutting testimony. Also, because the matter proposed to be proved, if admissible at all, was a part of the defendant’s case in chief, and they having failed to offer it then, are now too late. Also, because it is not sur-rebuttal. It is further objected to as irrelevant to the issue trying, especially that part which relates to the marks of the David Carskaddon found upon the ground. .It is incompetent to destroy a survey made upon the ground, by parol testimony of the surveyor who located the warrant after 21 years and thus substitute for the actual survey one founded simply on his recollection.</p> <p>Objection sustained and bill sealed for defendants.4</p> <p>M. D. Summerson being on the stand: Defendants propose to show by this and other witnesses, that after the defendants began to cut the timber on the land in dispute, John W. Wertz told Simeon Summerson if he cut over the line he would sheriff him, speaking of the line which William P. Baird had run and witness had marked to cut to and being same line which Baird has testified to as the line of the Carskaddon.</p> <p>Plaintiff’s counsel object to the above offer because, (1) It is not sur-rebuttal. (2) It is irrelevant. (8) It is too indefinite.</p> <p>Objections sustained and bill sealed for defendants.5</p> <p>The court instructed the jury, inter alia, that the re-survey of the Simon Pfoutz warrant not having been made until 1865, it could not prevail as against the owner of the David Carskaddon warrant and survey, because the re-survey would have no efficacy until actually made on the ground; that David Carskaddon having obtained his warrant in 1857, and having made his survey in 1858, lfis warrant and survey would be entitled to hold all the land embraced within the lines of that survey as against a re-survey of the Simon Pfoutz warrant in 1865; so that the question for the jury to determine under the evidence was, where were the lines of the David Carskaddon warrant and survey run in 1858 ?</p> <p>The jury returned a verdict in favor of the plaintiff for $960.95, and judgment being entered the defendants took this writ, assigning that the court erred:</p> <p>1. In overruling defendants’ objections to plaintiff’s offer.1</p> <p>2. In overruling defendants’ objections to plaintiff’s offer.8</p> <p>8. In overruling defendants’ objections to plaintiff’s offer.3</p> <p>4. In sustaining plaintiff’s objections to defendants’ offer.4</p> <p>5. In sustaimng plaintiff’s objections to defendants’ offer.5</p>

<p>FROM THE DECREE OF THE ORPHANS’ COURT OF MONTOUR COUNTY.</p> <p>No. 118 January Term 1887, Sup. Ct.; court below, No. 15 May Term 1886, O. C.</p> <p>In the court below the account of Robert Curry McWilliams, executor of the will of John McWilliams, was confirmed, and an auditor appointed to make distribution of the balance shown. The auditor, Mr. James Scarlet, made a report showing, so far as relates to the contention in this court, the finding of the facts following.</p> <p>John McWilliams died on August 7, 1876, testate, leaving a widow and four children, among whom were Robert Curry McWilliams and John Woods McWilliams. The willof the decedent was admitted to probate on August 14,1876 and letters thereon issued to Robert Curry McWilliams. The portions of the will relating to the contention are as follows:</p> <p>Item Third. I give and bequeath' unto my beloved wife, Margaret McWilliams, all my real estate for the term of seven years, the rents and proceeds to be applied to the payment of my debts, and is to be used in no other way except so much as may be necessary for her to five on, and I do hereby appoint my son, Robert C. McWilliams, to collect the rents of all the farms and pay the same over to my creditors, at which time my beloved wife, Margaret McWilliams, will relinquish the claim and take full possession of the brick house and the yearly rental of said farm as long as she remains my widow.</p> <p>Item Fifth. I do order and direct that my executor shall and will within two years after my decease (that is after the expiration of the seven years) have all my estate praised and sold, and after all my debts is paid the balance to be equally divided between my daughter, Mary E. Kimble, and my sons, James C. McWilliams and Robert C. McWilliams and John Woods McWilliams, as soon as it can be consistently done.</p> <p>Robert and Samuel Curry held two unsealed notes made by the decedent; one, dated April 1, 1868, for $3,180, payable to their order one year after date, and another dated April 1, 1874, for $2,078.44, payable to their order one day after date. Interest had been paid on the first note by the decedent himself to April 1, 1874, and afterwards to April 4,1881, by his executor. The interest on the second note had been paid by the executor to April 1, 1882.</p> <p>Rebecca A. Simington held two unsealed notes made by the decedent; one dated February 9,1872, for |400 payable to her order one day after date, and another of same date for $400 payable one day after date to the order of Harriet A. Simington, and assigned to Rebecca A. Simington by William Simington, administrator of the payee. The interest upon both these notes was paid by the executor to March 21, 1884.</p> <p>Within two or three years after the death of the testator, there was an agreement made between Robert and James Curry and the executor, at the instance of the latter and assented to by the widow and certain children, by which these creditors agreed to postpone the payment of their notes except the annual interest thereon, until the other debts of the estate could be paid by the executor under and pursuant to the provisions of the will, which agreement was adhered to by these creditors. The annual interest on these notes was paid out of the proceeds of the land. With regard to the Simington notes no express agreement was shown, but credit was taken in the executor’s first account, filed May 26, 1884, for interest paid on them, and no exceptions filed thereto by the parties in interest.</p> <p>On April 2,1877, R. C. McWilliams, the executor, and his two brothers, John Woods McWilliams and James C. McWilliams, joined in a judgment note to Robert and James Curry, for the amount of three years interest on their said two notes and a large sum of money beside, then borrowed by the executor from them to pay debts of the estate due to other persons; and the transaction of loan and interest adjustment had been proposed by the widow and requested by the parties signing the judgment note.</p> <p>To May Term 1884, proceedings in partition were had in the Orphans’ Court, and James C. McWilliams and R. C. McWilliams petitioned to take the real estate appraised under the provisions of the will allowing it; and on May 26, 1884, the court awarded tract No. 1 to James C. McWilliams at the valuation of $10,580, and tract No. 3 to R.'C. McWilliams at the valuation of $20,224. Sixty per cent, of these sums was ordered to be paid in cash to the executor for the payment of debts, and as required by court the executor gave bonds in $36,900 conditioned for the proper application of the funds to come into Ms hands, which bonds were approved by the court March 23, 1885. '</p> <p>The account of the executor under consideration was filed on November 20, 1885, confirmed December 21, 1885, showing a balance for distribution of $11,715.38. The debit side was made up of but two items, sixty per cent, on the valuation of purpart No. 1 taken by James C. McWilliams, and sixty per cent, on the valuation of purpart No. 3 taken by the accountant, aggregating $18,482.</p> <p>Objection was made on the part of legatees to the allowance of claim made upon the two notes of Robert and Samuel Curry, “because it being proven that John McWilliams died on August 7, 1876, and the fund being the proceeds of real estate, the claim was barred by the • statute before it Avas converted into money. Neither would the payments made on account by the executor, nor would a promise to pay the debt, prevent the running of the statute; and that it was barred generally by the statute of limitations.” To the claim made upon the two notes presented by Rebecca A. Simington, objection was made that the notes were barred by the statute of limitations.</p> <p>The auditor under his finding of facts stated his conclusions of law as to claims in question:—</p> <p>That the payments made upon the notes by the executor with the acquiescence and knowledge of parties M interest kept the Curry and Simington notes in full life.</p> <p>That the agreement to postpone the payment of the Curry notes Avas one which the executor had power and authority under the will of John McWilliams to make, and was upon good consideration, for the benefit of the estate and binds the estate.</p> <p>That the will of John McWilliams worked a conversion of the realty and created a special and active trust for the payment of his debts and the benefit of his estate, that became operative and binding upon the executor and heirs by the assent of the creditors.</p> <p>That the evidence establishes a seating of the claims in question upon the fund or special trust created by the will.</p> <p>That it was clearly the intention of the testator that the statute of limitations should not operate during the continuance of the trust, or no such provisions could avail to hold Ms estate together as the one contained in the will, to use the rent and proceeds for the term of seven years for the payment of his debts.</p> <p>That the widow and executor accepted it as a trust for the payment of debts, treated it in their accounts as beyond and without the statute of limitations and that the heirs of the estate of John McWilliams and all interested under his will are estopped from setting up lapse of time as a bar to the allowance of claimants’ demands.</p> <p>That the demand made by the claimants upon the widow and executor and acknowledgement by them of the claims in the proceedings had in partition and elsewhere was the beginning of suit in the proper court having jurisdiction of the estate and they, are estopped from setting up the statute of limitations; nor is it within the power of the beneficiaries to claim that the acts of the trustees under the will are not binding upon them, and that they can plead the statute where such demand is made and where through the acts of their trustees for their benefit creditors have agreed to postpone their claims • that the intention of the testator be carried out.</p> <p>That the testator intended to and did clothe his executor, R. C. McWilliams, and the widow, with power to make contracts and adjustments with creditors that would bind his estate and heirs, otherwise the provisions of his will, looking forward to a time for the payment of debts extending beyond the period of six years, must have failed. The former was necessary and an incident of the trust and gave him authority beyond that of ordinary executors to make promises and payments which bound the estate of the testator.—</p> <p>To a report allowing the Robert and Samuel Curry notes and the Rebecca A. Simington notes, with a distribution accordingly, James C. McWilliams, guardian, Margaret E. Longshore, W. C. Longshore, J. W. McWilliams and R. C. McWilliams, “heirs and legal representatives” of John McWilliams, deceased, excepted on the ground, inter aha, that the auditor should have held that the said notes were all barred by the statute of limitations. On argument the court, Wm. Elwell, P. J., confirmed the report of the auditor and decreed distribution as recommended.</p> <p>Robert C. MeWilhams and John Woods McWilliams then took this appeal and specified that the court erred in not sustaining the exceptions to the report of the auditor, and further:</p> <p>The court below erred in not holding that the claims of Robert and Samuel Curry and that of Rebecca A. Simington were barred by limitation under the act of 24th of February, 1834, § 24, because no action having been commenced, etc., within a period of five years after the death of the testator.</p> <p>The auditor and court below erred in not holding that the claims of Robert and Samuel Curry, and that of Rebecca A. Simington were barred by limitation under the act of 27th of March, 1713, § 1, because no action had been commenced, etc., within the period of six years from the death of testator, and the meeting of the auditor.</p>

APPEAL PROM THE ORPHANS’ COURT OP LEBANON COUNTY. No. 132 July Term 1886, Sup. Ct. The proceedings in the court below were in the matter of the distribution of the balance in the hands of Sarah Shaud, administratrix of the estate of John Shaud, deceased. The decedent died on May 18, 1872, leaving children and a widow, Sarah Shaud, to whom letters of administration were granted, and seized of three several parcels of real estate.

<p>ERROR -TO THE COURT OF COMMON PLEAS OF UNION COUNTY.</p> <p>No. 235 January Term 1887, Sup. Ct.; court below, No. 54 March Term 1885, C. P.</p> <p>This was a summons in ejectment served on February 28, 1885, in an action by Mary Mason, Elizabeth J. Mason and Martha Mason, heirs and devisees of John Ditty, deceased, against Daniel R. Ammon and Mrs. Mary Murty, to recover a lot of ground on South Second street in the borough of Lewis-burgh. On May 19, 1885, Wm. H. Marr was added as a defendant. The plea was not guilty.</p> <p>On the trial,.March 9, 1886, the plaintiffs showed title in John A. Reed and deed from John A. Reed to George F. Miller, dated December 9, 1834, and deed from George F. Miller to John Ditty and Ralph Ditty, dated May 11, 1835. Then, having proved the attestation and that John and Ralph Ditty, as well as the attesting witness were dead, they offered in evidence the following paper:</p> <p>Received, Lewisburgh, March 3, 1838, of John Ditty, forty dollars for my share of the lot situated on South Second street.</p> <p>Ms</p> <p>Witness present. Ralph X Ditty</p> <p>A. Graham. mark</p> <p>The admission of this paper was objected to, as being too indefinite and without seal, but the objection was overruled and offer admitted. It was then shown that early in 1838 John Ditty removed a house from across the street upon this lot; he was a single man and died unmarried July 2, 1838, leaving his brother Ralph and a sister Martha Mason, wife of Henry Mason, with whom he had made his home. Martha Mason died August 27, 1871, leaving four children, Robert, who died without issue, Martha, Mary and Elizabeth J., the plaintiffs. Henry Mason died July 7,1874. Ralph Ditty died about 1865. The plaintiffs then put in evidence the will of John Ditty, dated September 4, 1837, admitted to probate January 22, 1880, which was as follows:</p> <p>I John Ditty of the Borough of Lewisburg county of Union and State of Pennsylvania being of sound mind do hereby bequeath unto my sister Martha, wife of Henry Mason, during the term of her natural life, and at her death I bequeath it to the child or children of said sister Martha, my farm in Elk Township Venango County Pennsylvania. Said farm contains one hundred and three acres and one hundred and thirty-one perches (103 A 131 per). The deed of said farm is recorded in Franklin Venango Pennsylvania. Said farm was bought from Sbippen Tract number 2741.</p> <p>Said farm adjoins the lands of John Ewing and Henry Ship-pen. I also bequeath unto said sister and at her death to her child children or other lineal descendants any money and any other property whether real or personal which I possess at my death wheresoever situate. I bequeath unto my brother Ralph Ditty twenty-five dollars. I also bequeath unto my brother William Ditty twenty-five dollars. There is to be no dispute with my sisters child or children about my farm for it is to be theirs at their mother’s death. I do not give said sister Martha any legal right to sell said farm, for it is the childs or childrens at her death. I nominate Dr. William H. Ludwig and Alexander Graham executors of my will.</p> <p>In the defendants’ case in chief, John V. Miller, commissioners’ clerk, being on the stand:</p> <p>Defendants’ counsel offer to prove that the premises in controversy were assessed to Ralph Ditty, as the owner, from the year 1838, until 1865 or 1866, the date of his death. To be followed with proof that he was in possession, of the premises, adverse and hostile, from 1838 to the time of his death. The assessment of taxes offered as some evidence to show that he was in possession of the property at the time of their levy and assessment.</p> <p>Plaintiffs’ counsel objected: 1. Because tbe offer is to show the assessment of an acre of ground, and the description of the property assessed does not correspond with the description of the property in this suit. 2. That it is not evidence for the purpose of showing title in the defendant in this suit. 3. That the defendant, being the brother of John Ditty, the decedent, and it already appearing that they were tenants in common in the year 1838, of the land described in this suit, that Ralph Ditty cannot claim by adverse possession by virtue of that fact; and the testimony is irrelevant and immaterial to the issue trying.</p> <p>Witness: All this land was assessed as lots.</p> <p>By the court: Whether the defendant can defeat the title, given in evidence by the plaintiff, by adverse user, depends upon the construction to be given to the'will of John Ditty, given in evidence by the plaintiff, and we admit the evidence for the present in order to show an adverse possession. To which the defendant excepts and bill sealed.1</p> <p>Evidence then followed sustaining the offer.</p> <p>Defendants’ counsel then offer record ha equity, Williaan H. Marr and others v. Samuel H. Ziegler, administrator, etc., and others, No. 1 of May term 1880. This offered for the purpose of reading the testimony of the witnesses, except William Moore, which was perpetuated by the bill filed in that case, and who are now dead; and for the purpose of showing, amoiag other things, that John Ditty, under whom plaintiffs claim, and Ralph Ditty owned in partnership, as the witness states it, a number of lots in this town; that in 1838, I believe before John Ditty went to the west, there was a parol agreement executed between the parties by which John Ditty took a certain portion of the property and Ralph Ditty took the premises in dispute, and the agreement was executed and Ralph Ditty remained in possession of the lot assigned to him until his death, as the exclusive owner of the property.</p> <p>Plaintiffs’ counsel objected: .....</p> <p>By the court: On inspection of the evidence, relied upon to establish the offer, in our opinion it falls short of what is necessary to constitute authority on an exchange of lots and parol partition, and we therefore reject the evidence.</p> <p>Defendants’ counsel then offered the testimony for the purpose of showing that Ralph Ditty, more than 21 years before the impetration of the writ, took adverse possession and hostile possession of the premises in dispute.</p> <p>Plaintiffs’ counsel object because the limitation cannot run against the plaintiffs in tins suit until their right to possession accrued.</p> <p>By the court: Whether the objection to the testimony is. good or not, as we have had occasion to say before, depends upon the construction to be given to the will relied upon by plaintiffs, under which the plaintiffs claim. The evidence of William Ditty, I believe, does show an adverse possession, and for that reason we admit the evidence for the present. To which the plaintiffs except and bill sealed.8</p> <p>Under this offer the testimony of William Ditty was read. The defendants then offered evidence to show that said will was a forgery, which was excluded on the ground that the probate of the will was more than five years before, and therefore conclusive. Other evidence was introduced to show' adverse possession by Ralph Ditty, by tenants who paid him rent, until his death in 1865, when on Sept. 20, 1867, it was sold by Ms administrator under order of the Orphans’ Court to Wm. H. Marr, from whom title afterwards passed to Daniel R. Ammon and Mary Murty, defendants.</p> <p>The court, J. C. Bxjcher, P. J., charged the jury:</p> <p>The plaintiffs allege tha,t the title to tMs property, as well as the right of possession, is in them and not in the defendants. It is an inherent principle in the law of ejectment, that the plaintiff must always recover, if he recovers at all, upon the strength of his own title and not upon the weakness of Ms adversary. The contention of the plaintiffs is that they have established this. They allege that one John A. Reed was the owner of this land, and that by Ms deed dated the 9th day of December, 1834, he conveyed it to George F. Miller, as his assignee, for the benefit of creditors. TMs deed was given in evidence, and this then was followed up by the deed of George F. Miller, the assignee of Reed, dated May 11, 1835, by wMch hé conveyed the property in dispute to Ralph Ditty and John Ditty as tenants in common; that is to say, he conveyed the undivided half of the lot in dispute to each of these parties, thus giving them the whole as the tenants in common. Then the plaintiff: followed this with evidence of a receipt dated March 8, 1838, drawn by Ralph Ditty and attested by Alexander Graham, in which he receipted to John Ditty for his share of the purchase money for a lot on South Second street. Thus the plaintiffs contend that the entire title to the property in dispute became vested in John Ditty by reason of his purchase of the share of Ralph. This then was followed by the will of John Ditty dated the 4th day of September, 1837, and probated on the 22d of January, 1880. The plaintiffs also gave evidence that they were the children of Martha Mason, who is one of the devisees mentioned in the will of John Ditty.</p> <p>The contention on the part of plaintiffs is that under this will of John Ditty a life estate was vested in Martha Mason, the mother of these plaintiffs, with the remainder over in fee to them at her death, and for that reason they claim that they are entitled to recover in this action. There was evidence given that John Ditty entered into the possession of this land in the spring of 1838, by rolling a house over on to it from an adjacent lot, which he occupied. Thus, you see, he died seized of the property, because the evidence is undeniable that he died in July, 1838, after this house was erected and whilst he was in possession; so he died seized of the land, and this took the title out of the commonwealth and vested' it in John Ditty, and the title of the plaintiffs to the property in dispute turns upon the construction to be given to the will of John Ditty.</p> <p>The language of this will,- under which the plaintiffs claim to recover, is: “I also bequeath unto said sister (Martha, wife of Henry Mason), and at her death to her child, children, or other lineal descendants, any money and any other property, whether real or personal, which I possess at my death, wheresoever situated.” In Wilde’s Case, 6 Co. 17, cited in Ellet v. Paxson, 2 W. & S. 434, the devise was “to Wilde and bis wife, and after their decease _to his children; ” held but a life estate in Wilde and his wife, with remainder to their children. The rule is, that child and children are never words of limitation, “ but of purchase indicating, a new stock, and are properly descriptive of a particular class or generation of issue. They point not at heritable succession but individual acquisition:” Hayes, page 35, cited in Guthrie’s Appeal, 37 Pa. 14; Bussar v. Bradford, 2 Atk. 222; Gernet v. Lynn, 31 Pa. 94; Chew’s Appeal, 37 Pa. 23. It is admitted that, whilst child or children, will not, per se, be construed to be words of limitation, yet, when coupled with some other expression of testator, showing that they were used as a nomen collectivum, signifying “ heirs of the body,” the rule in Shelley’s case has been applied. In the present case, John Ditty devises to his sister Martha, “ and at her death to her child, children, or other lineal descendants,” showing that the testator used child or children in the sense of heirs of her body, for lineal descendants could be none other than the issue of her body, indicating indefinite issue, and the estate would, under the expression lineal descendants, have gone to grandchildren and great-grandchildren, thus defining the nature of the estate intended to be given to the successors of Martha, as one which he meant they should take by descent from her. In Allen v. Markle, 36 Pa. 117, the testator gave to his son A. for life, and at his decease to descend to Ms legitimate offspring forever, but M case A.’s issue should become • extinct, then over to other devisees in fee: - held an estate tail, and that the word “ offspring,” even if not defined by the subsequent use of the word “ issue,” is a term of hmitation. It is diffictdt to see why the term “hneal descendant” is not still more decisive of the intention of the testator to create an inheritable estate M his sister Martha; and 'as Mr. Hayes says that the word “ children ” may be construed to mean heirs of the body, when there is an express warrant for tins change of its legitimate meaning, under the hand of the author of the gift, we have here the use by the testator of the very definition itself of “ heirs of the body,” to wit, “ hneal descendants,” and that too used in the same connection with child. No stronger case could exist, showing the use of cMld and cliildren in the sense of heirs of the body. Admitting the difficulty as well as the rarity of the cases where this construction has been given to child or children, yet if in any case the construction is admissible, it appears to us it is so in the present case, although tMs conclusion is reached with some hesitation. TMs conclusion is fortified and strengthened by the language of the will in devising the Venango farm. The language of the will as to that farm is: “I hereby bequeath unto my sister Martha, during the term of her natural life, and at her death I bequeath it to the child or children of said Martha.” Then comes the devise which we have just been considering. After that the testator returns to the Venango' farm devised to Martha, and declares, “ there is to be no dispute with my sister’s child or children about my farm, for it is to be theirs at their mother’s death. I do not give said sister Martha any legal right to sell said farm, for it is the child’s or children’s at her death.” . This shows that the testator intended a different tenure of title in the Venango farm, and as to that Martha should have but a life éstate. He throws no such guard around the devise of the house and lot in dispute, showing no solicitude about the child or children getting it. [We charge you that Martha Mason’s estate in the lot in controversy is an estate tad, and not an estate for life with remainder over in fee to the plaintiffs, who are her children, as is contended for by the learned counsel for the plaintiffs.] 3</p> <p>The result is that Martha Mason, the mother of these plaintiffs, had an estate tad in this, and if she had gone into possession of it after the death of John Ditty and held it, there might be a ground for the plaintiffs to sustain this action. But the proof is undeniable on the part of the defendants, if you believe it, that shortly after the making of this will, and after the death of John Ditty in 1838, Ralph Ditty went into the possession of this real estate by himself or by his tenants, claiming it adversely as his own. The assessments of the lot have been given in evidence to him for a long number of years; and William Ditty, a brother, testifies to an exchange or a partition of the land. You will remember his deposition. We excluded that for the purpose of showing title in Ralph Ditty by virtue of this alleged exchange of land, but admitted the evidence for the purpose of showing that Ralph Ditty was claiming this land adversely; and the evidence of William Ditty is, if you believe it, and it don’t appear to be contradicted by anybody, that Ralph Ditty held the uninterrupted possession of this land, claiming it as his own, by himself and his tenants down until his death, in 1865 or 1866. There is also the evidence of witnesses. You will remember them. George Chappel, John Balliet, and others, testify to this adverse possession. ’ Mrs. Miller testified that ’way back in 1845, or along there, her husband leased this property of Ralph Ditty and paid the rent, but apart from all this there is no evidence in the case whatever, nor is it pretended, as I understand the contention of the plaintiffs, that Martha Mason or any of her heirs ever had any actual possession of this land, either by themselves or their tenants. It don’t appear that they ever exercised any act of ownership over it. Then it is in evidence that Martha Mason died in 1871. That is the time of her death as fixed by the testimony of Mr. Ziegler, a witness for the plaintiffs. This action of ejectment was not brought until 1885, a period of upwards of forty-six years after the estate passed out of John Ditty by his last will and testament, and it has been held adversely ever since. Now it is true that Martha Mason at that time was a married woman and was under disability to sue; yet it did not prevent the running of the statute of limitations, because our act of assembly of the 22cl of April, 1856, followed by the decision of Hunt v. Wall, 75 Pa. 413, expressly declares that if parties be under disability at the time when their title accrues to real estate, that they are forever barred, unless a suit be brought within thirty years from the time that the right of entry first became vested in them.</p> <p>It was distinctly held in Baldridge v. McFarland, 26 Pa. 338, that an adverse possession of twenty-one years, during the life of the tenant in tail, will bar a recovery by the issue in tail. The uncontradicted evidence in the case is, that adverse possession of the land was taken by those under whom the defendants claim ’way back in 1838, upon the death of William Ditty, the testator, and maintained up to this time. [No action was brought for more than thirty years, and therefore we instruct you that plaintiffs cannot recover.] 4</p> <p>The plaintiffs ask us to say:</p> <p>That, under the law and the evidence in this case, the will of John Ditty is conclusive; and if the jury believe that John Ditty, the testator, was, at the time of his death, the sole owner of the lands described in the writ, and that the plaintiffs are the devisees mentioned in the will as the children of Martha Mason, the sister of testator; and that Martha Mason died within twenty-one years of the commencement of this action, then the plaintiffs are entitled to recover the premises described in the writ, with damages and costs. And if John Ditty and Ralph Ditty were tenants in common at the time of testator’s death, then plaintiffs are entitled to recover the undivided half of the premises, together with damages and costs.</p> <p>Answer: Refused.6</p> <p>The defendants ask us to say:</p> <p>1. That, under the will of John Ditty, offered by plaintiffs, Mrs. Mason took, if anything, an estate in fee tail in the lands in suit, and the plaintiffs must claim through her as the heirs of her body and tenants in tail and not in remainder, after the termination of a life estate in the said Mrs. Mason.</p> <p>Answer: The law is as stated in this point.3</p> <p>2. That the statute of limitations began to run against these plaintiffs at the death of John Ditty, in July, 1838, and under the act of assembly in such case made and provided, and especially under the act of 13th April, 1859, P. L. 603, the plaintiffs cannot recover.</p> <p>Answer: Affirmed.3</p> <p>3. That, under all the evidence in the case, plaintiffs cannot recover.</p> <p>Answer: Affirmed.3</p> <p>The verdict of the jury was for the defendants, and judgment. The plaintiffs then took this writ, assigning for error:</p> <p>1. The overruling of plaintiffs’ objections to offer.1</p> <p>2. The overruling of plaintiffs’ objections to 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> <p>5. The affirming of defendants’ points.3</p> <p>6. The refusal of the plaintiffs’ point.6</p>

<p>FROM THE COURT OF COMMON PLEAS OF UNION COUNTY.</p> <p>No. 270 January Term 1887, Sup. Ct.; court below, No. 1 September Term 1882, C. P. in equity.</p> <p>In the court below a bill in equity was filed on June 4,1882, by Julia A. Hagenbuch, widow of Peter Hagenbuch, deceased, against David A. Kline, Thomas W. and Samuel B. Hagenbuch, executors of the will of said deceased, for an account. Mr. Kline only was served.</p> <p>Peter Hagenbuch died on February 17, 1875, leaving a will which was duly proven, dated January 11, 1875, the portions thereof relating to the provisions made for his widow being as follows :■ — •</p> <p>1. Out of my personal property I give and bequeath to my wife, Julia A., one horse and one buggy, to be selected by her from such as I may have at my decease; the remainder of the personal property, except so much as should be taken by my wife under the $300 widow’s exemption law, shall be converted into money and be applied as far as the same may go towards the payment of my just debts.</p> <p>2. I direct that my real estate shall not be sold until after the decease of my wife, unless it may become necessary in the judgment of my executors to sell a portion thereof for the pur-1' pose of'paying debts or legacies.</p> <p>3. I hereby give, devise and bequeath unto my wife, Julia-A., the one half of all the net income arising from my real estate during the full term of her natural life, and where real estate is converted into money, so that income ceases to be received from it as land, then one half of the interest arising from the proceeds of such lands is to be paid to my wife annually during the term of her natural life. I also direct that my said wife shall have the privilege of’ residing in my mansion house now occupied by me if she so desires, free of rent.</p> <p>4. If my executors can arrange to pay the balance of my debts and the legacies herein bequeathed by applying the income of my real estate thereto, then I wish them to do so, but-if this cannot be done, or in their judgment is not advisable,, then I authorize and empower them to sell and convey by deed or deeds, by them executed, such of my real estate as they may deem it best to sell for said purposes.</p> <p>6. I hereby give and bequeath to my wife, Julia A., the sum of four thousand dollars in cash, to be paid to her by my executors three years after my decease, without interest.</p> <p>12. If after the payment of debts and legacies and the receipt by my wife of her portion of the income arising from real estate, funds should accumulate in the hands of my executors, then I direct that the said fund shall be divided by my said executors once in every two years among the following heirs, namely: Aaron Hagenbuch one share, Harry Hagenbuch one share, and the heirs of Chas. Achenbach one share.</p> <p>15. I deem it right to bequeath to my wife, Julia A., the sum of four thousand dollars as hereinbefore given to her, because I received from her a considerable sum of mpney years ago, and this bequest is made in satisfaction thereof. — ■</p> <p>The bill filed by the plaintiff set out a full copy of said will, and averred that the defendants were appointed and were duly qualified as executors thereof, the said David A. Kline being the acting executor and accountant; that the executors had received large sums of money belonging to the plaintiff which they had refused to pay over to her; that the estate of the decedent had consisted of a large amount of real estate, divided into several parcels, and of some personal estate; that it be•came necessary to sell portions of the real estate for the payment of debts; that the interest of the plaintiff was of such a character that it could not be ascertained and fixed definitely by a suit at law, and praying for an account. The answer admitted the provisions of the will as averred; the sale of parcels of the real estate and the necessity therefor; denied that the plaintiff was entitled to further payments than she had already received, and claimed that the Orphans’ Court had sole jurisdiction over the respondent as executor, etc., and over any fund which had come or might thereafter come into his hands by virtue of his settlement of said estate, and that the Court of Common Pleas had no jurisdiction in the premises.</p> <p>Issue being joined the cause was referred to Mr. Franhlin Bound, as master, before whom the facts appeared: That at the time of the decedent’s death, in addition to about 13,000 of personal property, he was possessed of eight parcels of real estate, all of which, except the mansion farm of 153 acres, one half of the income from which had been received by the plaintiff, had been sold by the executors; from which sales $38,976.48 had been received, out of which receipts $30,348.29 had been applied to the payment of debts and the legacies bequeathed in the will, and that accounts had been settled in the Orphans’ Court by the defendant as the executor, and he had in his hands at the date of the hearing before the master a balance for distribution of $1,747.79.</p> <p>As conclusions of law the master found: That, upon the decided cases holding that by a devise of the rents, profits and income of land, the land itself passes: Anderson v. Greble, 1 Ash. 136 ; Carlyle v. Cannon, 3 R. 489; Miller v. Casselberry, 47 Pa. 376; McKeehan v. Wilson, 53 Pa. 74; Roberts’s App., 59 Pa. 70; Parker’s App., 61 Pa. 478; Drusadow v. Wilde, 63 Pa. 170; France’s Est., 75 Pa. 220; Hilsee’s Est., 83 Pa. 312; and the devise to the widow being in lieu of dower: Reed v. Reed, 9 W. 263; Gheen’s Exrs. v. Osborne, 17 S. & R. 173 ; Thomas v. Simpson, 3 Pa. 70; Walker v. Dunshee, 38 Pa. 430; Bard’s Est., 58 Pa. 393; Earp’s Will, 1 Pars. 453, the interest of the plaintiff, the widow of the testator, was a life estate in the one half of his real estate, and as such, under the terms of the will she must be regarded as a devisee in lieu of dower as to her rights to the one half of the income of the real estate, and in the relation of a purchaser her equities were superior, to those of all others. Further, that as there was no explicit and peremptory direction to sell any part of the real estate, and without such direction there was no conversion: Jones v. Caldwell, 97 Pa. 42; Lindley’s App., 13 W. N. 65; Peterson’s App., 88 Pa. 397; Anewalt’s App., 42 Pa. 416; Hunt & Lehman’s App., 105 Pa. 128; the interest of the widow in the realty as a devisee for value was unaffected by the sale of any portion of it, the fund produced by the sale still partaking of the nature of the realty; and that the collateral heirs who-were mere volunteers could have nothing until the creditors, legatees, and the widow had been paid. Also, that the plaintiff was not estopped or barred by the proceedings had in the Orphans’ Court by the executor, from coming in upon the residuum of the estate of her husband for the purpose of obtaining her rights under the will; and that, under the authority of Schreyer’s Est., 7 Phila. 477; 2 Story Eq. J. 1071; McNickel v. Henry, 8 Phila. 88; Willard’s App., 65 Pa. 265; Muncy Creek R. Co. v. Hill, 84 Pa. 459; Paul v. Paul, 36 Pa. 270; Vandyke’s App., 60 Pa. 481, the master was of opinion that the Orphans’ Court did not have jurisdiction- to make a decree declaring the rights of the widow under the will, and that she had adopted the proper course of proceeding in filing her bill in equity.</p> <p>The master then stated an account between the widow and the executors, crediting her with'what she was entitled to under the will and charging her with what she had received, leaving a balance due her of $8,785.21, for the payment of which he recommended a decree.</p> <p>To this report various exceptions were filed by the defendant, and after argument the court, J. C. Btjchek, P. J., filed the following opinion:</p> <p>The testator gives as follows by Ms last will:</p> <p>1. To Ms wife a legacy of $4,000, payable three years after Ms decease; and adds that he gives her tMs because he received from her a considerable sum of money many years ago, and this bequest is made in satisfaction thereof. So this we treat as a debt due to her.</p> <p>2. To his wife half of all the net income arising from his real estate, during the full term of her natural life, and provides that “ when real estate is converted into money, so that income ceases to be received from it as land, the one half of the interest arising from the proceeds of land is to be paid to my wife annually, during the term of her natural life.” He does not say as he might have said, that she is to receive one half of the interest on what remains after paying debts and legacies, but half of the proceeds, that is, what the sale of the real estate produces, she is to get the interest on one half. As a matter of mere interpretation, independently of the principles of law hereinafter invoked, and so ably cited and applied by the learned master, she would take the interest in the proceeds of real estate sold, not exceeding the one half, and if less than that remains after paying debts, etc., then in whatever sum does remain. All the other legatees are postponed, and the real loss falls on the residuary legatees, where the law casts it. But, when we invoke the well settled rule that a widow’s allowance, accepted in lieu of dower, does not abate in any class of legacies, as shown by Reed v. Reed, 9 W. 262; Gheen’s Exr. v. Osborne, 17 S. & R. 173; Thomas v. Simpson, 3 Pa. 70; Walker v. Dunshee, 38 Pa. 430; Bard’s Estate, 58 Pa. 393; Duncan v. Alt, 3 P. & W. 382; and it is there held, “ that every bequest to a wife is conditional by force of the statute, which declares that every legacy to her shall be in lieu of dower, if the contrary be not expressed, and thus standing, as if a surrender of her dower had been expressly provided by the testator, she is not a volunteer but a purchaser,” because she has given her legal right of dower for it; and “ where there is a deficiency of proceeds to pay all legacies charged upon it, the annuity of the widow shall not abate with the other bequests.” The widow thus stands in a class superior to abatement, and only loses in favor of creditors.</p> <p>Did the widow take a life estate in the realty ? From the authorities cited by the master it is clear that she took an estate for life in the realty, by virtue of the devise of the rents and profits, that is, to the extent of one half. We add Van Rensselaer v. Dunkin’s Exr., 24 Pa. 252. If it be said, that the testator intimates in his will that it may be necessary to s.ell real estate to pay his debts and legacies, the answer is, that, although the widow was thus forewarned, still the reading of the will as already shown, gives to her the interest on half of the proceeds, in any event, so that she might well say that a sale did not affect her.</p> <p>The objects of his bounty, after his wife, are Isabella What-more, $500; Emeline Fulkinson, $500; Benjamin Lenhart, the interest of $1,000; and after paying debts and legacies, if income still accumulates from products of real estate, this accumulation is to be divided by the executors as follows: Aaron Hagenbuch one share, Harry Hagenbuch one share, and heirs of Charles Achenbach one share; and after the death of his wife, the real estate to be sold and proceeds divided among collateral relations named in his will. The same principle involved here was applied in G-allaher’s App., 87 Pa. 200, where a devisee of a house and lot was disappointed to the extent of one third, by the widow of the testator declining the provisions of the will, and thus breaking in upon the devisee with dower; yet the court so marshalled the assets as to make up the loss to the devisee; and if this was done in favor of a mere stranger devisee, a fortiori, must it be done in favor of a widow, who, relying on the provisions of her husband’s will, surrendered her statutory rights and has been disappointed.</p> <p>Did the will convert realty into personalty ? Certainly not as to the widow during her life. The direction to sell to pay debts and legacies while the widow lives is not absolute and mandatory, but contingent and discretionary, namely, “if in their judgment it is not desirable to retain it, or the income will not pay debts and legacies,” then “ I authorize and empower them to sell and convey by deeds, etc.” It is true the direction to sell is absolute on the death of the widow, but we are looking at the power of sale while she lives. Thus there was no conversion as to the widow.</p> <p>The authorities cited by the master are conclusive as to the jurisdiction of the Common Pleas to determine the rights of a widow under a will, and the accounts settled by these executors in the Orphans’ Court do not bind her; they being mere administration accounts, the interests of the widow were not involved. She could not have excepted to them, so long as there remained enough estate to fill up the measure of allowance given her in lieu of dower: Willard’s Appeal, 65 Pa. 265. Besides, the plaintiff does not propose to interfere with those decrees, except where the court through an auditor attempted to fix her rights or the sum on which she should draw interest. This decree or direction of the Orphans’ Court has been shown to be wrong, and must be disregarded in this proceeding. . . . Nothing remains, save to make a decree:</p> <p>And now, September 20th, A. D. 1886, the exceptions are dismissed, and the report of the master is confirmed absolutely. It is further ordered and decreed that there is a balance due to the widow, Julia A. Hagenbuch, amounting to the sum of $8,785.21, and that the executors, David A. Kline, Thomas W. Hagenbuch and Samuel B. Hagenbuch (after deducting the costs of this proceeding as well as their commissions and counsel fees) apply to the payment of the above sum any accumulated funds that they may have in their hands belonging to the estate of Peter Hagenbuch deceased, and that they continue to apply all future accumulations of the residuum of the estate less their commissions and the one half of the net income due the widow under the terms of the will, to the payment of the same, until the widow, Julia A. Hagenbuch, has been full paid the amount due her and the costs of these proceedings.</p> <p>The defendant thereupon took this appeal, assigning for error, inter alia, the construction given to the will of the deceased as to the character of the devise or bequest to the widow, the plaintiff, and her rights under the said will, and the want of jurisdiction in the Common Pleas.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE CAMERON COUNTY.</p> <p>No. 380 January Term 1887, Sup. Ct,; court below, No. 60 May Term 1885, C. P.</p> <p>This case was tried by the court, C. A. Mayer, P. J., without the intervention of a jury, in accordance with the provision of the act of assembly of April 22, 1874, P. L. 109. It was a suit brought by the school district of Shippen township against the county of Cameron to recover certain moneys ■which were allowed to the county treasurer as commissions out of moneys collected by the treasurer as school taxes on unseated lands situate in the township of Shippen which constitutes said school district. The amount claimed to have been collected and retained as commission by the county treasurer was the sum of five hundred and. ninety-four dollars and twenty-four cents. This sum was sought to be recovered in the suit.</p> <p>The following were the facts found: — In the year 1880, as appears by the report of the county auditors, there was allowed to the then treasurer of the county the sum of $201.82, in the year 1882, as appears by the same report, there was allowed the sum of $155.62, and in the year 1884 the auditors’ report shows there was allowed the sum of $230.73. These several items, amounting in the aggregate to the sum of $594.24, were allowed to the county treasurer as commissions on school taxes collected by them on unseated lands in the township of .Ship-pen. These commissions were settled by the county treasurer at the annual settlement made by the county auditors in the years 1880, 1882 and 1884. From these settlements .by the county auditors no appeal was taken.</p> <p>The question to be decided is, whether there is any law or statute authorizing the allowance of this commission to the county treasurer for the collection of school taxes on unseated lands.</p> <p>The conclusions of law were :—</p> <p>1. That school districts are entitled under the act of May, 1854, to the full amount of all taxes collected on unseated lands returned by the collector of school taxes to the commissioners of the county. No deductions can be made on account of commissions paid to the county treasurer.</p> <p>2. The several settlements of the county treasurer’s accounts by the county auditors allowing to the treasurer a commission out of money collected for a school district are not binding upon the district. The school district not being a party to such settlements cannot be affected or bound by it.</p> <p>3. The claim of the plaintiff having accrued within six years before the institution of the suit, the statute of limitations is not a bar to the recovery of the claim.</p> <p>4. Although the certificate of return made by the school directors of said school district to the commissioners of the county may have been informal, yet, as the county collected the school taxes, the informality of said certificate cannot avail the county as a defence to the claim of the plaintiff. The plaintiff is therefore entitled to recover from the defendant the sum of six hundred and eighty-four dollars, being the amount of the plaintiff’s claim with interest.</p> <p>The prothonotary is directed to give notice to the parties or their attorneys of the filing of this decision, and, if exceptions are not filed thereto in 80 days after service of said notice, to enter judgment in favor of the plaintiff for the recovery of six hundred and eighty-four dollars and eighty cents.</p> <p>Exceptions filed by the defendant county were overruled, and judgment being entered as directed, the defendant took this writ assigning for error the ruling of the court that the county was not entitled to credit on the amount of taxes collected for the commissions allowed to the county treasurer.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OE MCKEAN COUNTY.</p> <p>No. 414 January Term 1887, Sup. Ct.; court below, No. 34 December Term 1876, C. P.</p> <p>This was an ejectment brought on October 6, 1876, by Lewis Emery, Jr., against John DeGolier and Frances De-Golier, his wife, to recover thirty-one acres of land in Bradford township. On May 23,1881, James Amm et alii were added as defendants. The plea was, not guilty.</p> <p>On the trial, January 17, 1887, it was shown on the part of the plaintiff that title to the land in controversy was in Daniel Kingsbury, who conveyed to A. W. Newell, June 23,1865, and Newell conveyed by deed of quit-claim to the plaintiff on September 29, 1876. The defendants showed as matter of defence, a sealed contract of sale of the land in dispute made on October 22, 1869, by A. W. Newell to Frances DeGolier, the latter signing alone; which contract contained the covenants following: — ■</p> <p>In consideration whereof, the said DeGolier doth hereby covenant, promise, and agree, to and with the said party of the first part, that she will reside on and improve the said lot of land, and,pay to the said party of the first part, his heirs or assigns, for said lot of land, the snm of five hundred and twenty dollars in manner following, that is to say, sixty dollars yearly, payable October 22d each year, until fully paid, the whole bearing interest from the date of this instrument, which is to be paid annually, and doth further covenant, promise, and agree, to pay all taxes and assessments whatsoever, whether in the nature of taxes now in being or not, which are or may be payable for or in respect of the said lot of land, or any part thereof; and doth further covenant, promise, and agree, that no pine timber shall be cut until three fourths of the purchase money shall be paid, and that in case of failure to make the payments aforesaid at the times hereinbefore stipulated, and interest, and the taxes, or shall leave said lot of land untenanted for the term of six months at any time previous to the full payment of the sums aforesaid, the said party of the first part, his heirs or assigns in either case, shall have full power, and lawful authority, to sell and dispose of said lot of land to any other person; and this agreement, so far as relates to the party of the first part hereof, shall be void, and of none effect, from and after any such delinquency in payment thereof, or abandonment for six months as aforesaid, or failure to pay taxes thereon, and all sums that shall have been paid to the party of the first part on account thereof shall be forfeited, and he shall not be hable to refund the same or ' any part thereof.—</p> <p>Indorsed upon this contract were these payments: October 22, 1869, $60; November 29, 1870, $60; October 28, 1871, $60. There was evidence brought out on the cross-examination of defendants’ witnesses and introduced in the plaintiff’s rebuttal, tending to show that John and Frances DeGolier occupied the land bought under this agreement until in 1872, when they removed therefrom, returning thereto in August 1876; and that in the meantime the property was entirely abandoned, no cultivation done, fences down and the land open to the public.</p> <p>The plaintiff presented for instructions the following points:</p> <p>1. That the contract dated October 22,1869, between A. W. Newell and Frances DeGolier cannot be enforced against said Newell or his vendee, the same being made with a married woman and, she being one incapacitated to contract during coverture, the element of mutuality between the parties is wanting, and the same cannot be enforced.1</p> <p>2. The contract between A. W. Newell and Frances De-Golier, one of the defendants and wife of John DeGolier, dated the 22d day of October, 1869, inter alia, contains the following provisions: “ In case of failure to make the payments aforesaid at the times stipulated,” etc., “ or shall leave said lot of land untenanted for the term of six months at any time previous to the full payment of the sums aforesaid, the said party of the first part shall have full power and lawful authority to sell and dispose of said lot of land to any other person; and this agreement, so far as relates to the party of tire first ■part, shall be void and of none effect from and after any such delinquency in payment or abandonment for six months as aforesaid;” and the undisputed evidence showing that said premises had been left untenanted for more than six months previous to the full payment of the purchase money, the same having never been paid, the contract was forfeited, and A. W. Newell, by his deed of September 29, 1876, conveyed said land to plaintiff unencumbered by the contract and all claims in pursuance thereof; if the jury believe from the evidence that Kingsbury in his lifetime executed and delivered the deed to Newell.3</p> <p>These points were answered in the general charge, Henry W. Williams, P. J., which was as follows:</p> <p>The action you are now to dispose of is called an action of “ ejectment.” It was brought by Lewis Emery, Jr., against John and Frances DeGolier, who were man and wife, for the recovery of thirty-one acres of land in this county; and other persons interested in this land under Frances and John De-Golier have been placed on the record as co-defendants.</p> <p>The plaintiff shows a title in himself to this land. He shows that the commonwealth granted it by patent, and he shows that both himself and the defendants claim under Daniel Kingsbury as a source of title.</p> <p>The evidence shows that Kingsbury conveyed this land, whether by valid conveyance or not, in the view we take of it, is a matter of no consequence now, to A. W. Newell, and A. W. Newell within a year or so after he acquired title conveyed the title to the present plaintiff, Lewis Emery, Jr. In 1869, some years prior to the date of the deed from Kingsbury to Newell, Newell contracted the land to Frances DeGolier, who was to pay for it $520 in instalments of $60 per annum. The contract was in writing and signed by himself and her. She and her husband went into possession under it and remained in possession some years. They were in possession at the time this writ was served, and occupying a house on the premises of which there were some ten or twelve acres cleared. During the time intervening between the taking of this contract and the bringing of this suit there was a year or two that they were out of possession. The premises were unoccupied and the doors of the house were allowed to swing open, and the fields, so far as the evidence indicates, were uncultivated. Upon the evidence thus given several questions have been raised. On the part of the plaintiff we are asked to instruct you in the first place, that Mrs. DeGolier having been a married woman at the time this contract was entered into was incompetent to enter into a valid and binding contract, and that the contract which she did enter into is not capable of enforcement in her favor in this action.</p> <p>It is true, gentlemen, that a married woman is incompetent to make a contract; yet such contracts for the purchase of land have been in many instances in this state — where the purchase money has been secured by judgment bond or note on which judgment has been entered — recognized as conveying the land validly, sufficiently to the vendee, and such security has been recognized as an equitable lien on the land conveyed; and in this qualified manner these contracts have been enforced. In this case Mrs. DeGolier made the first three payments on this contract substantially in accordance with its terms. Improvements were made upon the land, and they were for several years in possession and, according to her testimony, cultivating the land, and were found in possession when this action of ejectment was brought; and we instruct you in reply to the first point submitted by plaintiff’s counsel, that the fact that she went into possession under the contract from A. W. Newell, the plaintiff’s vendor, and that there is due upon that contract a portion of the purchase money, are facts that it is entirely competent for the court and jury to take into consideration, and as justice and equity can be done by securing the purchase money which the vendor contracted for on the one hand, and secure to his vendee the benefit of her contract on the other, [we say to you that under the circumstances of this case this contract is capable of enforcement in such a way, in equity.] 1</p> <p>The second point of plaintiff’s counsel is one in which we are asked to charge you that this contract was forfeited. There were certain stipulations in the contract, and among them this: That in case the premises should remain unoccupied six months or in case the purchase money should remain unpaid — any of the instalments — the contract should thereby become void as to the first party. Now, such stipulations are enforced under proper circumstances; and if A. W. Newell had entered on this ground during the time possession was vacant, and had resisted the return of the defendant, and insisted that he had entered under this covenant or stipulation and availed himself of the forfeiture, we tbink he would have been in by virtue of his legal right and it would have been incompetent for the defendant to have dispossessed him; and the question of the enforceability of this contract would have been raised under circumstances when we should have had to say to you that it could not be enforced. If this woman were out of possession, seeking to recover as against her vendor the possession of this property as against any condition broken, we should have to say that the contract could not be enforced. But no entry was made by the vendor, and there was no effort to take advantage of any forfeiture or to collect this money or to take possession of the land that was left vacant. On the other hand she was allowed to return to it and resume her possession and cultivation, and this action of ejectment was not brought until some time subsequently. We instruct you in answer to the second point, that the forfeiture, or grounds of forfeiture that may have existed, not having been taken advantage of properly, are to be regarded as waived; and that ,the defendant having been in the quiet and peaceful possession of these premises when this action of ejectment was brought, is entitled to the benefit of the contract under which she entered. It has not been terminated by any act of the vendor by prompt effort of the vendor to avail himself of the existence of any clause of forfeiture, and not having been so terminated by his act while the possession was vacant, this action of ejectment, brought a considerable time after her return and that of her husband to possession, does not place her vendor, or the plaintiff who here represents him, in a position to insist upon these forfeitures.</p> <p>Now, gentlemen, if we are right in our instructions to you upon these points, the situation of this case is just this: Mrs. DeGolier purchased this land, agreeing to pay $520 for it. She has paid a portion of it and there is a portion due, and tins action of ejectment becomes in effect a means of ascertaining the amount due and compelling its payment. [We think your duty so far as this case is concerned will be discharged when you have ascertained the amount due upon this contract and have fixed a reasonable time, and in view of the great length of time which has elapsed you should not allow it to be very long, within which it shall be paid. We think you should find for the plaintiff for the land described in his writ, subject to be entered for the defendant, if this balance be paid within ten, or twenty or thirty days.] 3 In view of the long delay in the payment of the purchase money secured by this contract, longer time would hardly be allowed by you.</p> <p>The statement that will go out with you is a mere calculation, and its correctness you are yourselves to determine. It is to aid you only in arriving at the amount and dates, and you will look it over yourselves to see that it is correct.—</p> <p>Upon tins charge the jury rendered a verdict for the plaintiff for the land described in his writ, to be released upon payment by the defendants of the'sum of $773.56 with interest and costs within thirty days. Thereupon, judgment being entered, the plaintiff took this writ assigning for error:</p> <p>1. The refusal to affirm plaintiff’s first point1 and the part of the charge in reference thereto in [ ] 1</p> <p>2. The refusal to affirm plaintiff’s second point.8</p> <p>3. The part of the charge embraced in [ ] 3</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE LANCASTER COUNTY.</p> <p>No. 119 July Term 1886, Sup. Ct.; court below, No. 82 February Term 1885, C. P.</p> <p>The action was in trover by Philip Doersom and Philip Rudy against Andrew Garber to recover damages for the conversion by the defendant of two iron hog-troughs, one fat hog, about thirty tons of hay, about eighteen tons of straw, a lot of tobacco, a lot of lumber, one half interest in fourteen acres of corn, the corn-fodder on fourteen acres of ground, and certain other articles claimed by the plaintiffs.</p> <p>In 1884, Jonas B. Garber was tenant of the farm of his-father, Andrew Garber, the defendant, and became indebted, to his father and to others, among whom were Philip Doersom and Philip Rudy. In October, 1884, Andrew Garber issued an attachment under the act of March 16,1869, against Jonas-B. Garber, and soon afterwards a second and like attachment. On November 11, 1884, Philip Doersom and Philip Rudy, to whom Jonas B. Garber had that day confessed judgments, issued executions upon which a levy was made upon the property described in the declaration in this case. Then Andrew Garber presented his petition (sufficiently set out in the opinion) praying that the sheriff be restrained from selling said property on said writs of execution, the same being bound by the lien of his attachments. The averments of this petition were supported by a deposition of the petitioner; but, on hearing, the court having found that the property under execution had not been included in the inventories made in the service of said attachments and, therefore, not being bound by the lien thereof, were liable to sale upon said executions, decreed that said petition be dismissed. At the sheriff’s sale which followed, Doersom and Rudy became the joint purchasers of the property claimed. Subsequently, Jonas B. Garber having gone, Andrew Garber took possession of the farm and on demand refused to deliver to Doersom and Rudy the property in dispute, and this suit was brought.</p> <p>In the plaintiffs’ case in clfief, Philip Doersom having testified to the joint purchase of the property, value, etc., the defendant asked on cross-examination :</p> <p>Q. What was said and done between you and Mr. Rudy by reason of which he acquired a joint interest with you in these articles at sheriff’s sale ?</p> <p>Objected to by plaintiffs. Disallowed; exception.1,</p> <p>Philip Rudy, having also testified:</p> <p>Q. Please state what conversation or agreement you and Mr. Doersom had in reference to purchasing this property at sheriff’s sale. Objected to by plaintiffs. Disallowed; exception.2</p> <p>In the defendant’s case in chief, Michael Miokly sworn:</p> <p>Q. What, if anything, did Jonas Garber say to you in 1884, while living on his father’s farm, as to the manner in which the hay, straw and fodder were to be disposed of under the agreement with his father that he was farming the place? Objected to by plaintiff. Disallowed; exception.3</p> <p>Andrew Garber testified: I had no written agreement with Jonas about farming ; this agreement was when he went there he got the hay, the straw, corn, fodder and wheat in the ground, .and when he left he was to leave the hay, straw, corn, fodder and wheat in the ground; when he left in fall of 1884 the wheat in this advertisement belonged to me; he had no interest in it whatever; if he had remained on the farm he was to feed it on the place — he was to feed it on the farm; if he left he had nothing to do with it; if he remained he would have had half the wheat; at the sale a written notice was signed by me and read by Fridy at the sheriff’s sale, January 29,1885 ; I can’t tell what became of that notice;.....</p> <p>Henry Swords, sworn:</p> <p>It is proposed to prove by this and other witnesses that •Jonas Garber, under whose title plaintiffs claim, declared while the property in controversy was in his possession and under his control that he farmed Andrew Garber’s farm on the shares, :and that the hay, corn and fodder were to be fed on the farm. Objected to by plaintiffs. Offer overruled; exception.4</p> <p>In rebuttal the plaintiffs offered the “judgment of court in Doersom v. Garber, made January 17, 1885, with reference to this property, on proceeding of defendant — whole record.” Objected to by defendant. Allowed; exception.5</p> <p>The court, J. B. Livingston, P. J., answered defendant’s points and charged the jury, inter alia, as follows :</p> <p>Defendant’s points:</p> <p>2. That under the narr. and evidence, this action of trover and conversion cannot be maintained for the corn and fodder.</p> <p>Answer: Refused.6</p> <p>If you find from the evidence that there was a money rent for $400, and nothing in the contract that the hay and straw were to be fed on the place, and if there was a money rent there is no evidence that it was, then the sheriff’s sale would pass title to the hay, straw in the stack and corn-fodder to plaintiffs, and the verdict should be for plaintiffs for their value, with interest from the time of conversion.</p> <p>If you find from the evidence that the contract between Andrew Garber and Jonas Garber, was, that Jonas was to farm ■this farm on tbe shares or halves ; that he was to get half the grain, and was not to remove any hay, straw or fodder from the farm, as Andrew and Henry Garber swear the bargain was, then your verdict should be for the defendant. Where half the crop is reserved simply by way of rent, the landlord is entitled to half the straw.</p> <p>The way going crop to which a tenant is entitled where the-rent is a money rent, upon his leaving demised premises, includes the straw as well as the grain, which he may remove- and dispose of as he pleases, being subject only to the terms-of his contract, and not to any supposed custom of the country on that subject.</p> <p>[If you find from the evidence that Jonas Garber was farming this farm on the shares or halves simply, and to get half of' all the crops, hay, straw and fodder, and was not restricted from removing his share, then the sheriff would have a right to levy on his share thereof, and to sell it, and the purchaser would have a right to remove them and maintain this action;] 7 unless you find that Jonas Garber fraudulently withheld the share of the crops from Andrew Garber to which he was legally entitled; if he did so fraudulently withhold the landlord’s share of crops, the landlord, Andrew Garber, may recover in this action the value of such crops so withheld. If the value of the crops withheld is greater than the value of the crops here claimed, the verdict should be for the defendant. If the crops so fraudulently retained were not worth as much as the amount of the crops here claimed, your verdict should be for the plaintiffs for the difference between the value of the crops so fraudulently retained and the value of the crops here claimed with interest from the time of conversion.</p> <p>The verdict was for the plaintiffs for 1551.58; and, judgment being entered, the defendant took this writ assigning for error:</p> <p>1-4. The rejection of defendant’s offers.1-4</p> <p>5. The admission of plaintiff’s offer.5</p> <p>6. The refusal of defendant’s point.6</p> <p>7. The part of the charge embraced in [ ] 7</p>

No. 263 January Term 1887, Sup. Ct.; court below, No. 14 September Term 1885. The suit below was an ejectment brought September 7,1885, by Jeremiah M. Hahn against H. A. Bealor, executor of the will of Rebecca Habn, deceased, to recover a lot and dwelling tbereon in tbe borough of Manheim.

<p>ERROR TO THE COURT OE COMMON PLEAS OE YORK COUNTY.</p> <p>No. 74 July Term 1887, Sup. Ct.; court below, No. 121 April Term 1885, C. P.</p> <p>On April 16, 1885, an action in debt was brought by Magdalena Welsh, the widow of George Welsh, deceased, against the burgess and inhabitants of the borough of York, to recover arrearages of interest upon a dower charge in favor of the plaintiff upon a lot of ground occupied by the borough as a street. The pleas were nil debet, payment, payment with leave.</p> <p>George Welsh died in 1877 seized of a lot in the borough of York, the same described in the plaintiff’s narr., which lot in partition proceedings had was awarded to his son Zaccheus H. Welsh, at the valuation of $3,000. By an Orphans’ Court decree entered March 13,1878, a dower principal in favor of the plaintiff was charged upon the premises, the interest, $59.60, to be paid to her annually during her lifetime, on March 13th, each year, and the necessary recognizance to protect the widow and heirs was taken. On March 25, 1878, Zaccheus H. Welsh conveyed the premises to Augustus E. Fahs, subject expressly to said dower charge, but the deed was not recorded. On April 1, 1880, the town council enacted an ordinance laying out a street called South Pine street which occupied the entire lot. Under the act of April 22, 1856, P. L. 525, on petition to the Court of Quarter Sessions, viewers were appointed to make assessments for damages and contributions. The viewers reported on June 21,1883, and awarded to Augustus. E. Fahs, for damages over benefits the sum of $4,092.86. During the pendency of an appeal from this assessment the borough compromised with the land owner for $5,000 in full settlement of all damages, taking from Augustus E. Fahs and his wife a release for the ground taken, reserving the buildings and materials, releasing the premises J“ for the use of a public street so long as the same shall be used for said purpose and so long only. To have and to hold the said piece of ground for the use of a street as long as the same shall be used for said purpose.” Of these proceedings in the Quarter Sessions the widow had no notice.</p> <p>On the trial, before Jambs W. Lattimer, J., the foregoing facts were shown, and the defendant offered to prove by a witness on the stand and others that at the time of the execution of the release of Augustus Fahs and wife, already given in by plaintiff, said Augustus Fahs on being asked whether he had his deed there, the said deed not being recorded, replied, no, it was at home, and that upon being, further asked whether there were any liens or incumbrances upon the property, replied, no. That it was upon the faith of these statements that said release was accepted and money therein paid as the full damages to the property. Offered as a part of the res gestae at the time of the execution of the release, to show the borough did not assume the payment of any dower interest or dower, and to show defendant is not liable in this form of action, which facts defendant claims can be shown because plaintiff gave release in evidence. Objected to.</p> <p>Offer rejected; exception.10</p> <p>The court charged the jury and answered the plaintiff’s points as follows :—</p> <p>Section 41 of the act of March 29, 1832, P. L. 202, defines the method of charging the widow’s dower in proceedings in partition pursued in this case, and defines her remedies for its recovery. This section I will read to you......</p> <p>It is contended by the defendant that it paid to Augustus E. Fahs the full value of the entire lot, including the dower charged upon it, and that the borough is not liable to Mrs. Welsh for the arrears of interest; that she must look to Fahs who got the money, for her annual payments, or if not to him to Zaccheus H. Welsh, who took the ground in the partition subject to this payment; that the borough of Nork is not an “ assign ” of Zaccheus H. Welsh, who took the land at the valuation in the proceedings in partition, within the meaning of the act just read to you, and is not, as such, liable to pay the annual interest on this dower charged to Mrs. Welsh.</p> <p>I cannot agree with the counsel for the defendant in this view of the law. Mrs. Welsh had an estate in the land of her husband before the partition, and the nature of that estate was "not changed by the proceedings in partition. It was an estate that could not be divested without her consent, or taken from her without at least notice of the proceedings, and an opportunity to assert her rights and secure their protection; no such notice was given her, or opportunity afforded. Her estate remains in the land in the hands of the borough. It matters not that by the terms of the release the borough has acquired but an easement, a right to the use of that land as a public highway, the fee and the reversion, if that use should be abandoned, remaining in Fahs.</p> <p>The borough acquired by that release all that it would have acquired by the consummation of its proceedings to take the land under the right of eminent domain, the use, possession and entire occupation and enjoyment of the land. It has taken all that gave value to her estate in the land and has deprived her of all remedy to enforce her claims against the land, unless that remedy can be enforced in this action. Even the remedy of distress has been taken from her by the borough appropriation of the land and the removal of all that would make a distress effectual.</p> <p>The constitution of the commonwealth provides that municipal corporations clothed with right of eminent domain shall make compensation for property taken, injured or destroyed, which shall be paid or secured before such taking, injury or destruction. It was the duty of the borough to ascertain all persons having estates of any sort in the land it proposed to take, and to name all such in its petition and to give to all notice, and an opportunity to assert their rights, and protect their property. Had this been done in this case, the plaintiff’s rights could have been adequately secured.</p> <p>It is true that her estate is of a peculiar character not entitling her to the possession of the land. It may be true that it could not have been divested by proceedings under the borough’s right of eminent domain, and that she could not have been compensated by the award of damages in money. But if she had had notice of the proceedings she would have had an opportunity to assert her claim, and the borough could have protected her and itself by withholding from Fahs an amount equal to the capital of her dower during her widowhood. It was by the default of the defendant, however ignorant it was of her dower being charged on this land, that this suit has been necessitated. The plaintiff’s estate in this land not having been divested by the proceedings instituted by the borough for the opening of this street, the borough took the land subject to the charge upon it. The defendant is such an assign as is made by the act of the 29th of March, 1832, which I read to you, liable for the payment of this dower interest, and an action of debt is a proper and adequate remedy to enforce that liability.</p> <p>The court is requested to charge the jury on the part of the defendant as follows:</p> <p>1. That the plaintiff is not entitled to a verdict against the defendant on which judgment can be entered against the defendant.</p> <p>Answer : This point is not correct.1</p> <p>2. That the plaintiff is not entitled to a verdict against the defendant on which a judgment de terris can be entered.</p> <p>Answer: This point is correct. A judgment de terris could npt be enforced against a municipal corporation by an execution de terris exclusively.</p> <p>8. That the evidence shows that defendant did not purchase the half lot of ground upon which the dower fund was charged; that the defendant only settled and paid the damages for laying out a street, over the half lot of ground on which the dower had been charged, and that the law does not imply or infer a promise to pay the annual interest on the dower fund to the widow under such a state of facts, or the facts of this case, and therefore the plaintiff is not entitled to recover in this action under the evidence.</p> <p>Answer: The defendant is hable to plaintiff for her annual dower interest by reason of having taken the land on which her dower was charged without notice to her as shown by the evidence. It took the land subject to the charge* which was not divested by the proceedings had.8</p> <p>4. That under the evidence it appears that the land had been condemned for the use and purposes of a street; that viewers were appointed who assessed the damages; that said amount of damages as well as an additional sum in order to procure a settlement without further litigation were paid to Augustus E. Fahs, the owner of the lot; that if the jury believe the facts to be as stated in this point, then the plaintiff cannot recover against the defendant in this suit.</p> <p>Answer: This point is not correct in its statement of the law of this case.3</p> <p>5. That if the jury believe.that Augustus E. Fahs received the whole amount of damages assessed by the viewers together with the additional amount, subsequently agreed to be paid, or the amount subsequently agreed upon, which covered and included the damages assessed, then said Augustus E. Fahs is a trustee of the fund so received as damages and the plaintiff can recover from him her claim for annual interest on dower claimed in this suit; especially is that the case because said Augustus E. Fahs is bail iu the recognizance when said land was taken at the appraisement and the owner of the half lot of ground on which said dower had been charged at the time the street was laid out, and is the owner thereof subject to the right of way at this time; therefore the plaintiff cannot recover in this suit against the defendant and the verdict of the jury-should be in favor of the defendant.</p> <p>Answer: I cannot affirm this point.4</p> <p>6. That said proceedings given in evidence by which said half lot of ground was taken for the purposes of a street, with the subsequent proceedings to assess the damages, prevent the plaintiff from recovering against the defendant, especially in this suit, and the verdict should be for the defendant.</p> <p>Answer: This point is not correct.5</p> <p>7. That the plaintiff is not entitled to recover in this suit, and the verdict of the jury should be for the defendant.</p> <p>Answer: This point is not correct.6</p> <p>8. This suit is brought wrong. The proper parties are not brought into court; Unangst v. Kreamer, 8 W. & S. 395.</p> <p>Answer: This point is not correct.</p> <p>9. There is no evidence that the burgesses and inhabitants of the borough of York ever took upon themselves the payment of the sum claimed in this suit.</p> <p>Answer: There is no evidence of any agreement or promise on the party of the defendant to pay this dower, and the defendant’s liability as stated in the general charge rests not on such assumption.</p> <p>10. That the defendant is not the party to whom the said real estate was adjudged, nor his heir nor his assigns. That the legal title of the lot on which dower is charged is still in said Augustus Fahs, as the plaintiff’s evidence shows. That there is no evidence in the case showing that the defendant assumed the payment of the interest on the dower fund or the dower, and that the plaintiff cannot recover in this form of action against the defendant.</p> <p>Answer: The defendant is the “ assign ” of the party taking the land at the valuation within the meaning of the 41st section of the act of March 29,1832, and the plaintiff can recover in this form of action.7</p> <p>11. That the plaintiff is not entitled to recover in this case for the reason if no other that she did not take an appeal from the assessment of damages made by the jury, as required by the act of 13th of April, 1874, P. L. 283.</p> <p>Answer: This point is not correct.8</p> <p>In this action the plaintiff can only recover the amount of dower interest due at the date of the commencement of the suit, namely, April the 16th, 1885, with interest to the present time. By the decree of the court the dower interest is payable annually on March the 13th. It was paid to her on the 15th of April, 1883. By the terms of the release from Fahs and wife the borough was to get possession in sixty days from the 12th of May, 1883, which would bring the period of its obtaining possession under that release to 12th of July, 1883.</p> <p>At that date, in the absence of other evidence precisely fixing the time, we may assume the possession of the borough to have commenced. Fahs was liable for the interest on the dower up to that time, being one third of the §59.60 due and payable on March the 13th, 1884, and the borough for the remainder of that year’s interest, or §34.70 due on March 13, 1884, with interest from that date to the present time, and also for the amount due on March 13, 1885, §59.60 with interest to the present time, and for the aggregate of these two amounts, your verdict must be for the plaintiff.</p> <p>The jury found for the plaintiff the sum of §119.26 debt with costs of suit. A motion in arrest of judgment was refused and judgment entered on the verdict.9</p> <p>Thereupon the defendant took this writ, assigning for error:</p> <p>1-8. The answers to defendant’s points, 1-8</p> <p>9. The entry of judgment generally against defendant.9</p> <p>10. The rejection of defendant’s offer.10</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE BLAIR COUNTY.</p> <p>No. 81 January Term 1886, Sup. Ct.; court below, No. 108 April Term 1888, C. P.</p> <p>This was an action of ejectment brought on April 20, 1883, by Peter Smith against Jacob Kraft and Philip Kimmel to recover a lot of ground in Altoona.</p> <p>On April 27,1878, the lot in dispute was sold at sheriff’s sale as the property of Peter Smith, the plaintiff in the ejectment, to Lawrence Kimmel, who received the sheriff’s deed therefor on August 26, 1878. At the date of this suit Philip Kimmel was in possession as vendee of Lawrence Kimmel of one half the lot, and Jacob Kraft was the tenant of Lawrence Kimmel of the other half.</p> <p>On the trial, in rebuttal of the defendant’s case, made out by showing title under the sheriff’s sale on a valid judgment against the plaintiff, the latter adduced testimony tending h> show: That at and immediately before the sheriff’s sale of his property Lawrence Kimmel, the purchaser, made a verbal arrangement with the. plaintiff, under which Kimmel was to purchase and, on repayment by the plaintiff of the amount of' the bid and certain other claims against him which Kimmel was to discharge, Kimmel was then to reconvey the property to the plaintiff; that this agreement was to be reduced to writing and signed by the parties the evening of the day of the sheriff’s sale at the office of Smith’s attorney, but that Kimmel the purchaser did not attend and the agreement was not after-wards prepared or executed; that other persons who had intended to bid were induced by information of the said arrangement to refrain; that on the day of sale, Smith procured the railroad tickets for the party, including Lawrence Kimmel, to attend the sheriff’s sale at Hollidaysburg and return, and had paid for the lunch for the party; that the property was knocked down for $335 to Smith’s attorney, who,, relying upon the arrangement, directed the sheriff’s deed to be. made to Kimmel, and that the property was then worth from $1,200 to $1,600; that soon afterwards Smith removed with his, family to Pittsburgh, leaving his son-in-law Storm and wife in possession, and Kimmel got possession in November, 1878; that in July or August, 1879, after Philip Kimmel had purchased half of the lot, but before he had made any improvements on it, the plaintiff made a tender of $600 to Lawrence Kimmel and demanded a reconveyance which was refused, that sum being sufficient as claimed by Smith to reimburse the purchaser.</p> <p>On the day of trial, the plaintiff renewed his tender of $600> to the defendants and on its refusal paid the same into court.</p> <p>The character of the testimony relating to the arrangement referred to, to the agreement which was to have been put in writing, and to the terms upon which the reconveyance was to have been made, is shown in the opinion of this court.</p> <p>On the part of the defendant, testimony was adduced tending to show that Lawrence Kimmel purchased the property primarily to save a claim he held against the plaintiff; that on the day of the sheriff’s sale he had verbally agreed to give the plaintiff a chance to re-purchase, but that he was to be paid $25.00 per month and to receive the rent, $8.00 per month in addition; it was not arranged that the agreement was to be reduced to writing; that no payments either by Smith or by the tenant were made; that about Christmas, 1878, Mrs. Smith in behalf of her husband saw Kimmel and told him that they had failed in their agreement, but that if he would wait till Easter following they would pay the whole amount, and if they did not then pay they would let the property go; that no payments at all were ever made and no tender, until in June, 1879, when a part of the lot had been sold to Philip Kimmel who had then nearly completed a dwelling house upon it, when the $600 tender was made and refused.</p> <p>Following are certain points of the plaintiff with the answers thereto:</p> <p>1. If the jury find that before the sheriff’s sale a verbal agreement was entered into between Lawrence Kimmel and Peter Smith, that Kimmel should buy the property in at sheriff ’s sale for Smith, to be reconveyed to Smith when he should repay Kimmel the purchase money paid by Kimmel and other debts of Smith paid by Kimmel; that this agreement should be reduced to writing and signed before Kimmel should obtain the sheriff’s deed; that Smith, on the faith of above understanding, paid the railroad fares of Mr. Heinsling and Lawrence Kimmel and his son Philip to and from Hollidaysburg, while attending the sheriff’s sale; that the property was knocked down to Mr. Heinsling as the attorney for Smith, with the understanding that the above agreement was to be carried into effect; that Kimmel, by reason of this understanding, and by representing that he intended to buy the property for Smith, prevented bidding, and obtained the property at a price much below its value; that Kimmel afterwards obtained the sheriff’s deed without having entered into the written contract; that some time after the sheriff’s sale Smith or his attorney tendered to Kimmel an amount sufficient to reimburse hi in the money he had advanced, and demanded a reconveyance of the property; that Kimmel declined the tender, refused to reconvey, and asserted title absolutely in himself; then Kimmel is a trustee ex maleficio for Smith, and the plaintiff is entitled to recover.</p> <p>Answer : If all the facts asserted in this point are proven to your satisfaction, this point is affirmed. You will bear in mind, however, that fraud is never to be presumed, but always to be proved by satisfactory evidence.</p> <p>6. The alleged arrangement between Mrs. Smith and Kimmel that the money should be repaid to Kimmel at or about Easter of 1879, and if not paid by that time then Smith to make no further claim, even if such arrangement were proved, is of no effect, because not made with Smith himself, nor by his authority, and because there was no consideration for it.</p> <p>Answer: Affirmed.4</p> <p>7. If the jury find that it was agreed between Smith and Kimmel at or about the time of the sheriff’s sale, that the property should be knocked down to Heinsling, and the sheriff’s deed made to Kimmel; that Kimmel should pay the purchase money, and the record debts of Smith; that Kimmel should hold the property of Smith until Smith should repay the money advanced by Kimmel, and then reconvey to Smith, then the transaction was a mortgage, and if Smith tenders to Kimmel an amount sufficient to pay him the amount advanced, with interest, allowing for what Kimmel received for rents on the property, the plaintiff is entitled to recover.</p> <p>Answer: Affirmed; if the jury are satisfied that all the facts alleged have been proven.8</p> <p>Following are certain points of the defendants with the answers thereto:</p> <p>1. That under the act of assembly of April 22,1856, all declarations or creations of trusts in lands are required to be in writing and signed by the party holding the title therefor, else are void; except resulting trusts such as the law implies.</p> <p>Answer: Denied as applying to this case.1</p> <p>8. That if the testimony of Philip Kimmel, Lawrence Kimmel and Mrs. Mary Soler is believed, viz.: “that Mrs. Smith, representing her husband, stated that if they did not pay or reimburse Kimmel by Easter they would not want the property,” and the money was not paid before that time, or the 1st of May to which Lawrence Kimmel extended it, that this would be evidence of Smith having abandoned the purpose of redeeming the property and the verdict must be for the defendants.</p> <p>Answer: This point raises a question of fact for the jury. Its weight is entirely for them.3</p> <p>11. That the evidence in the case fails to make out such a fraud upon part of Lawrence Kimmel as to invalidate the sheriff’s sale, and the verdict must therefore be for defendants.</p> <p>Answer: Refused.6</p> <p>The court, Robert L. Johnson, P. J., in the charge to the jury, reviewed the testimony relating to the arrangement under which Lawrence Kimmel became the purchaser, and the knowledge of it on the part of other proposed bidders and proceeded :</p> <p>It is alleged here on the part of the plaintiff that the evidence shows that this arrangement prevented Karl Olmes from purchasing, prevented another party, Richard Shontz, from attending the sale, and that the property was bought at only a fraction of its real value, in pursuance and in consequence of this arrangement. [You will recollect the value put on the property by the plaintiff’s witnesses. Some three or four witnesses, I believe, were called, who estimate the value at that time at from $1,200 to $1,300. The witnesses called by the defendants fix it at $800 or $900. It seems that the appraisement, which is in evidence here, shows that it was valued by the appraisers at $900. The property really brought but little over one third of its value, according to the defendants’ counsel, and but little over one fifth of its value according to the evidence of the plaintiff.] 5</p> <p>Now, these are alleged as facts and evidence to convince the jury, when taken with the admission of Philip Kimmel to Mr. Olmes of his intention and purpose; this is presented to the jury, and it is claimed by the counsel for the plaintiff that it establishes such fraud and artifice on the part of the defendant as would vitiate the sale, and render him a trustee — -as would defraud Peter Smith, and render Lawrence Kimmel a trustee ex maleficio for him, to hold the property in trust for him.</p> <p>Now, gentlemen, in pursuance of that theory, the plaintiff has submitted a point to the court to be presented to the jury; and you will consider this, as you will the other points that shall be read here, in reference to the facts as they present themselves before you......</p> <p>It is the duty of jurors to reconcile testimony where the reconciliation of testimony is possible. * Where it is irreconcilable, where you cannot pass upon it all with a regard to the ' truth of all the witnesses, then it is for you to decide according to what you believe the weight of the testimony is. On this point we have stated that in order to mate out fraud, artifice; in order to mate out bad faith, you must believe from this testimony that it occurred in the very inception of the title; that the whole transaction was fraudulent and intended to be fraudulent, and that while seeming to purchase for Peter Smith, Lawrence Kimmel intended at the time of the purchase to secure the title to himself. All this testimony that I have just referred to bears upon that question. If this testimony itself, or the weight of it, does convince you that this was done through fraudulent design, and that by that fraud, purchasers were prevented from attending the sale; that that was part of the fraud and that the failure to carry out the terms by the written agreement, was part of it; if you believe that all these things were part of that same fraud and intention by artifice, falsehood, or fraud to get the possession to himself while he assumed to act as the agent or friend of another, then his title would avail him nothing, and he would hold that title in trust for the plaintiff. You will recollect that “ the laboring oar” is with the plaintiff to’satisfy you of this......</p> <p>The jury returned a verdict for the plaintiff for the lot in dispute, and judgment being entered the' defendants took this writ. After the affidavit and recognizance for the writ was filed in the court below, on motion it was ordered that the plaintiff have leave to take out of court the sum of |600 paid in by him as a tender.7</p> <p>The errors assigned were as follows:</p> <p>1. The refusal of the defendants’ first point.1</p> <p>2. The answer to the plaintiff’s seventh point.3</p> <p>3. Tbe answer to tbe defendants’ eighth point.3</p> <p>4. The affirmance of the plaintiff’s sixth point.4</p> <p>5. The part of the charge embraced in [ ] 5</p> <p>6. The refusal of the defendants’ eleventh point.6</p> <p>7. The order permitting plaintiff to lift the tender.7</p>

<p>error to the court oe common pleas oe warren COUNTY.</p> <p>No. 147 January Term 1886, Sup. Ct.; court below, No. 45 # December Term 1883, C. P.</p> <p>This was an action in trespass vi et armis begun in tbe court below on September 22,1883, by J. J. Richard and S. J. Conquer against E. A. Allen. Tbe defendant, as tbe sheriff of Warren county, bad levied upon and sold certain personal property as tbe property of tbe firm of Sargent & Holt, drillers of oil wells, which property tbe plaintiffs claimed bad been purchased by them at a constable’s sale upon executions against R. H. Sargent and David Holt, tbe members of said firm.</p> <p>On tbe trial, on May 8, 1885, after tbe evidence was closed, by agreement of counsel tbe verdict of tbe jury was taken upon tbe damages recoverable, if any, and tbe case upon tbe evidence with tbe verdict as to damages was submitted to tbe court under tbe provisions of tbe act of April 22, 1874. Tbe jury fixed tbe amount of damages at $373.75.</p> <p>Tbe following are tbe facts as found by tbe court:</p> <p>R. H. Sargent and David Holt were partners, as Sargent & Holt. Tbe property in dispute belonged to tbe firm, and about September 1,1883, it was levied upon under a constable’s execution against Sargent in favor of J. J. Richard, and a like execution in tbe bands of tbe same constable against Holt in favor of C. P. Henry. Tbe constable put and kept tbe property in tbe exclusive custody and control of Samuel Vickers, as bis bailiff, and advertised a sale under said writs to be made September 7, 1883. These executions were of tbe ordinary form issued by a justice of tbe peace.</p> <p>On September 4, 1883, Holt with tbe consent of Sargent executed a judgment note, in the name of the partnership of Sargent & Holt, to W. H. Copeland, for $700, at one day, on which note judgment was entered on September 6, 1883, and an execution issued thereon which reached tbe sheriff’s bands at 5:27 P. M. that day. On the morning of September 7,1883, and before tbe constable’s sale, E. A. Allen, tbe sheriff and defendant herein, under the Copeland execution levied upon, the same property previously levied upon by tbe constable.</p> <p>As advertised, the constable on September 7,1883, under tbe executions in bis bands sold by one sale tbe property be bad levied upon to Richard and Allen, tbe plaintiffs herein, for $50. On September 22,1883, after notice of tbe plaintiffs’ claim of title thereto, tbe sheriff upon tbe partnership execution in bis hands sold and delivered tbe same property to Copeland for $250.</p> <p>Upon these facts, tbe court, Wm. D. Bbown, P. J., found as matter of law as follows:—</p> <p>Tbe principal objections urged against tbe right of plaintiff to recover, are: (1) Tbe constable’s executions, on which tbe sale to tbe plaintiffs was made, were not in accordance with tbe provisions of tbe act of April 8, 1873, relating to executions. (2) That tbe levy by tbe constable, by virtue of the individual executions against Sargent, and tbe one against Holt, and tbe sale thereon to the plaintiffs, did not vest any title in tbe corpus of tbe property, by reason ■ of tbe fact that after tbe levy by tbe constable, and before bis sale to the plaintiffs, tbe fi. fa. of Copeland against the firm of Sargent & Holt came to tbe bands of tbe sheriff and was levied on thé property in dispute, and that the fi. fa. thus became the paramount lien, and that tbe levy and subsequent sale thereon by tbe sheriff was not a trespass on tbe plaintiffs’ property.</p> <p>As to tbe first objection, we are of opinion that tbe special execution against tbe interest of a partner prescribed by tbe act of 1873 is not applicable to executions issued by justices of tbe peace, and that tbe act cannot be invoked to make void tbe sale made by tbe constable to tbe plaintiffs.</p> <p>The second objection to tbe plaintiffs’ recovery we think is a valid one.</p> <p>If tbe sale to the plaintiffs under the execution of Covanovan v. Sargent and Henry v. Holt had taken place before tbe lien of tbe Copeland fi. fa. bad attached, they would have become tbe owners of tbe property.</p> <p>However illogical it may appear that a purchaser of two or more intangible interests in property should thereby become tbe owner of tbe corpus of tbe property, such is tbe well settled law of Pennsylvania as applied to the purchase, by tbe same person, of tbe interest of all the partners in tbe partnership property. This results from tbe thoroughly settled doctrine that firm creditors have no inherent paramount right to the firm property as means for the payment of their claims, except as the same is asserted and enforced through the equities or rights of the several parties, as between themselves, to have the firm property applied to the firm debts. When, therefore, the shares in any partnership property are united in the same purchaser by the joinder of all the partners in a sale, or by a separate sale made of his interest by each partner, or by sales upon executions against the interests of each, the rights of the partners to such property is extinguished, and “every semblance of partnership equity is at an end.”</p> <p>But in our opinion the equities of partners are not extinguished by levies of the interests of each partner on executions for the individual debt of each. After the constable’s levy on the interest of each partner, each had (the same as before) the right to insist that the partnership property should be applied to the payment of the partnership debts. While this right still existed in both Sargent and Holt, the Copeland fi. fa. came to the hands of the sheriff, and became a lien on the property in suit, and a lien that could only be made effective by a sale thereon, which was afterwards done.</p> <p>We say the lien of the Copeland fi. fa. could only be made effective by a sale thereon, because, in-our opinion, Copeland has no right to the proceeds of the sales on the constable’s executions. He was a stranger to the funds thus raised. Had the constable sold first on the execution of Covanovan v. Sargent, Covanovan would have been entitled to the proceeds. Had he afterwards sold on the execution of Henry against Holt, Henry would have been entitled to the proceeds. We are of the opinion that it makes no difference “ that instead of being consecutive these two sales were simultaneous,” and we conclude that Copeland’s recourse was “necessarily to the prop-’ erty in the hands of the purchasers,” and that the sheriff, the defendant, was not a trespasser in selling the property in suit on the fi. fa. in favor of Copeland against the firm of Sargent & Holt.</p> <p>Plaintiff’s point:</p> <p>The Copeland execution having been issued upon a judgment entered upon a judgment note dated after the separate levies against Sargent and against Holt were made, which resulted in the sale to the plaintiffs, and there being nothing in the case to show that the Copeland note, judgment or execution was for a debt which the firm of Sargent & Holt owed before the separate levies aforesaid were made, the Copeland execution interposed no obstacle to the plaintiffs acquiring a good and unincumbered title by the sale of the property to them upon the separate executions.</p> <p>Answer: Refused.1</p> <p>Defendant’s points:</p> <p>1. The executions in the hands of the constable against the individual members of the firm of Sargent & Holt not having been special executions for sale of individual interests of the respective partners in the firm property, under the act of April 8, 1878, the constable could make no valid levy under said writs on the said respective interests of the partners, and no title passed by the constable sale on these executions to these plaintiffs, and they cannot recover.</p> <p>Answer: The plaintiffs’ title would not fail merely by reason that the constable’s executions were not as prescribed by the act of 1873.</p> <p>2. The defendant, as sheriff, under a fi. fa. No. 24 Dec. Term 1883, against the firm of Sargent & Holt, which was received by him on the 6th of September, 1883, having made a levy and seizure of the goods in controversy on the 7th of September, 1883, prior to the sale to plaintiffs, by the constable, of the individual interests of the members of the firm, he acquired a paramount lien upon the property of the firm, and by that levy and subsequent salé by him, in pursuance of that paramount lien thus acquired, did not become a trespasser thereby, and is not liable to plaintiffs.</p> <p>Answer: Affirmed.8</p> <p>3. The sheriff, as defendant in this case, is protected by his writ in his hands, and is not affected by any want of consideration in the original judgment upon which the writ was issued, between the parties to that judgment, or by the time the debt for which said judgment was entered was created.</p> <p>Answer: However correct this proposition may be when invoked in an appropriate case, we think it has no application to the case on trial and decline to answer it.</p> <p>Under these findings of fact and of law the prothonotary was directed'to enter judgment for the defendant nisi. Judgment having been entered and, after certain exceptions, made absolute, the plaintiffs took this writ, assigning for error:</p> <p>1. The refusal of plaintiffs’ point.1</p> <p>2. The affirmance of defendant’s point.8</p> <p>3. The direction to enter judgment for the defendant.</p>

<p>error to the court or common pleas or warren county.</p> <p>No. 177 July Term 1886, Sup. Ct.; court below, No. 120 December Term 1885, C. P.</p> <p>This was an action in debt, originally before a justice of the peace and on appeal in the Court of Common Pleas, by the burgess and town council of the borough of Warren, incorporated by act of April 3, 1832, P. L. 259, against L. F. Geer, in which the declaration complained:</p> <p>For that whereas the said borough of Warren was duly incorporated by an act of the General 'Assembly of the commonwealth of Pennsylvania, under the name, style and title of the burgess and town council of the borough of Warren, and being so incorporated, the said borough, of Warren did afterwards, upon application to the Court of Quarter Sessions of the county of Warren, become subject to the restrictions and possess the powers and privileges conferred by the act entitled ‘ An Act regulating the boroughs,” approved the third day of April, 1851. And for that the said burgess and town council of the borough of Warren did afterwards enact, ordain and approve the following ordinance for the government of said borough, to wit:</p> <p>Sect. 32. Every .person canvassing from house to house in the borough of Warren for the purpose of selling or soliciting orders for books or pictures, gentlemen’s shirts, furnishing goods or clothing by sample, groceries to private houses by wholesale or retail, and pedlars of grapes or fish, and all transient dealers in furniture, wagons, carriages or sleighs, whether selling by sample or otherwise, shall take out a license from the burgess and pay the fees hereinafter required before doing or offering to do any business in the said borough.</p> <p>Sect. 33. The fees for licenses under this ordinance shall be as follows: For book and picture canvassers, one dollar per day, or at the rate of four dollars and one half per week; for grape pedlars, one dollar per day; for pedlars of cut meats, twenty-five dollars per year; for agents selling gents’ shirts, furnishing goods or clothing by sample- or otherwise, three dollars per day; for fish pedlars, one dollar per day, or ten dollars per year; for furniture dealers, one dollar per day; for dealers in wagons, carriages or sleighs, three dollars per day. This ordinance shall not apply to those persons holding mercantile licenses within the borough, nor to persons resident in the county selling their own farm-produce.</p> <p>Sect. 35. If any person shall be guilty of violating any of the provisions of the foregoing ordinances, and shall be convieted of the same, before the burgess or any justice of the peace of this county, he shall be fined in any sum not less than three nor more than ten dollars, with all costs of suit; the same to be collected as similar debts are by law collected.</p> <p>And for that the said L. F. Geer, on the thirtieth day of September last past, did violate the foregoing ordinance by canvassing from house to house, in the borough of Warren, without a license, for the purpose of selling and soliciting orders for books, and did solicit orders for a book of E. Bee-man and other persons, contrary to and in violation of the ordinance aforesaid. Whereby, by force and virtue of the said ordinance, and the acts of assembly in such case made and provided, the said L. F. Geer became liable to pay to the said borough of Warren the penalty of ten dollars, in such ordinance provided. Yet, although being so liable, etc.....</p> <p>To this declaration the defendant demurred, that it was not sufficient in law.</p> <p>After argument the court, Wm. D. Blown, P. J., filed this opinion and judgment:</p> <p>The declaration avers an ordinance of the borough of Warren requiring every person canvassing from house to house in said borough, for the purpose of selling or soliciting orders for books, etc., to take out a license from the burgess before doing or offering to do any business in the said borough; that the fee for license for book canvassers is four and one half dollars per week. The said ordinance subjects the person violating its provisions, on conviction before the burgess or any justice of the peace of the county, to a fine not less than three nor more than ten dollars, to be collected as similar debts are by law collected, and that defendant has violated the same. The demurrer alleges that the declaration is not sufficient in law.'</p> <p>After considering the very full and able argument of the counsel for the plaintiff, we find ourselves unable to concur in the conclusions reached therein. We think the ordinance mentioned is void for want of authority in the burgess and council to enact it. We think an ordinance that contravenes a common right is valid only when the power to ordain it is plainly conferred by legislative grant. We are of opinion that neither the act of 1832, nor the act of 1851, nor the act of 1883, confers any authority to make the ordinance on which the claim in suit rests; and further, that the police power of the borough is not such as to give validity to the ordinancé.</p> <p>The demurrer is sustained, and judgment nil capiat per breve is entered against the plaintiff.</p> <p>Judgment having been entered upon the demurrer in favor of the defendant, the plaintiff took this writ, assigning the entry of the judgment as error.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE CRAWEORD COUNTY.</p> <p>No. 244 January Term 1887, Sup. Ct.; court below, No. 107 February Term 1886, C. P.</p> <p>The case below was a scire facias sur mortgage issued by Frank R. Fleek for the use of Helen M. Fleek against Charles T. Holcomb, mortgagor, and Fred Zillhaver, terre tenant.</p> <p>The title to a tract of land became vested in Charles T. Holcomb and Mary, his wife, under the will of Bailey Fullerton, the wife’s father, which will was admitted to probate on April 6,1854, and contained this paragraph:—</p> <p>Item: I give and bequeath unto my daughter Mary and my son-in-law Charles T. Holcomb, one hundred acres of land lying in Rockdale township, now in their occupancy as surveyed by C. Jagger.—</p> <p>On August 8, 1877, the People’s Savings Bank entered a judgment against Charles T. Holcomb, for $1,571. On April 19,1882, a scire facias was issued upon said judgment and on June 10, 1882, judgment of revival was entered for $2,033.72. On May 24,1882, when there were no judgment or mortgage liens against her, Mrs. Holcomb joined her husband in the execution of a mortgage upon the land devised in said will to Frank R. Fleek for $1,140, which mortgage was recorded on May 25, 1882, and subsequently assigned to Helen M. Fleek, the use plaintiff herein. Mrs. Holcomb died June 8,1882.</p> <p>On June 13, 1882, a writ of fi. fa. was issued upon the Peopie’s Savings Bank judgment and levied upon the land devised, which was sold by the sheriff on September 14, 1882, to the First Presbyterian Church of Meadville, Pa., and deed executed therefor on October 2, 1882. On January 13, 1883, the ■church conveyed the land to Fred. Zillhaver, the defendant.</p> <p>On June 16, 1886, Frank R. Fleek for use of Helen M. Fleek, issued a scire facias upon the mortgage before referred to, upon which judgment was taken against Charles T. Holcomb for $1,447, in default of appearance and plea. The terre tenant alone made defence.</p> <p>On the trial, December 10, 1886, before Pearson Church, P. J., the plaintiff put in evidence the will, the mortgage and the assignment thereof, the occupancy of the property described in the writ by the terre tenant defendant, and rested.</p> <p>The defendant offered in evidence the People’s Savings Bank judgment, which was objected to as incompetent and irrelevant.</p> <p>By the court: Objection overruled for the present, reserving the question as to the effect of the records.5</p> <p>The defendant offered in evidence the scire facias upon said judgment and the judgment of revival thereon; also the fi. fa. thereon and return of the sale of the land levied upon to the First Presbyterian Church of Meadville for $2,625, with the sheriff’s deed to said church dated October 2, 1882; admitted that the land sold and conveyed by the sheriff to the church was the same land devised by the said will, so describedinthe sheriff’s deed; also offered the deed from the church to the defendant, recorded, and reciting that the land conveyed was the land devised by said will to Mary and Charles Holcomb and sold at said sheriff’s sale. These records and deeds were objected to as incompetent and irrelevant.</p> <p>By the court': Objection overruled for the present, reserving the question as to the effect of the records and deeds.6</p> <p>The court, after reciting the facts given in the statement, charged the jury:</p> <p>Fred. Zillhaver has made a defence claiming that he holds the land free and discharged from the lien and burden of the mortgage executed by the Holcombs, in 1882.</p> <p>The question of law raised by this record is a novel one, and the court is bound, although sprung upon us in a moment, to have an opinion one way or another. We have that opinion and now instruct you.</p> <p>The law is that a mortgage, if it be the first lien against particular real estate, is not disturbed by any sheriff’s sale that may take place upon subsequently entered judgments, but the lien is preserved against the property in the hands of a purchaser at sheriff’s sale; and if that was all there was in this case, then it might be that the plaintiff would be entitled to recover.</p> <p>[But there was a judgment entered against Charles T. Holcomb prior to the execution and recording of this mortgage to Fleek.</p> <p>The devisees under the will of Bailey Fullerton, being Mary Holcomb and C. T. Holcomb, her husband, C. T. Holcomb took a joint estate, and if Mary Holcomb had lived, and was now living, I should be inclined, and would certainly charge you that the mortgagee under that mortgage would be entitled to recover her mortgage against Mary Holcomb. But Mary Holcomb having died prior to the entry of this judgment of revival, the whole property descended to and became vested in her surviving husband; and hence, on the 8th of June, 1882, there was a judgment against Charles T. Holcomb, which was a prior lien to the mortgage, although Charles T. Holcomb, the mortgagor, executed this mortgage. Although owning an undivided one half by virtue of his tenancy as a joint tenant, upon the death of his wife the whole property became vested in him and he was the mortgagor, but there being an open judgment entered against him prior to that time, the title he acquired by the death of his wife inured to the benefit of his judgment creditors. The sheriff’s sale divested the lien of the mortgage given in 1882; hence the plaintiff is not entitled to recover against Fred. Zillhaver, the vendee of the sheriff’s vendee of this real estate, and your verdict will he for the defendant.] 4</p> <p>Defendant’s counsel requests the court to charge the jury:</p> <p>1. That under all the evidence in this case, the verdict must be for the defendant, Zillhaver, the terre tenant. ,</p> <p>Answer: The point of the defendant, terre tenant, is answered in the affirmative.3</p> <p>Plaintiff’s counsel requests the court to charge the jury:</p> <p>1. That the judgment offered in evidence by the defendant, and the proceedings had thereon, to wit: the sale of the land by the sheriff, did not divest the mortgage upon which the plaintiff’s action is based, and that therefore their verdict should be for the plaintiff.1</p> <p>2. That the mortgage executed by Mary Holcomb and Charles T. Holcomb, her husband, became a lien upon the date of its record against them and upon the estate vested in the mortgagors, under the will of Bailey Fullerton, and was a. first lien upon the property included in the mortgage, and a. prior lien to that offered in evidence .by the defendant.8</p> <p>Answer: Both points of the plaintiff are answered in the' negative.</p> <p>A verdict for the defendant having been returned, and judgment entered, the plaintiff thereupon took this writ assigning for error:</p> <p>1, 2. The answers to the plaintiff’s points.1’ 8</p> <p>3. The answer to the defendant’s point.3</p> <p>4. The part of the charge embraced in [</p> <p>5. 6. The admission of the plaintiff’s offers.5’ 6</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE SOMERSET COUNTY.</p> <p>No. 197 July Term 1886, Sup. Ct.; court below, No. 161 September Term, 1886, C. P.</p> <p>This cause was commenced by attachment in assumpsit under the act of March 17, 1869, by David H. Heinbaugh, Andrew Coughenour and Jonas Meyers against Wm. H. Sellers and Maggie Sellers, his wife.</p> <p>On March 9, 1882, John Blubaugh loaned to Mr. and Mrs. Sellers the sum of $500, taking an exemption note under seal with warrant of attorney to enter judgment thereon, signed by Mr. and Mrs. Sellers, David Heinbaugh, Andrew Coughenour and Jonas Meyers, the three last named persons being sureties. At the time of receiving this money it was represented to the sureties signing, that the money was to be used to repair and improve a mill property the title to which was in Mrs. Sellers. Judgment was entered on said note on February 23,1.884, and execution issued thereon. On January 20, 1886, on motion and rule the court struck the name of Maggie Sellers from the record of the judgment and execution. The sureties soon afterwards paid the judgment. On June 26, 1885, Mrs. Sellers made a public sale of her personal property, preparatory to a removal to the west, and the next day the said sureties began the attachment proceedings, summoning as garnishees certain persons who had purchased property at said sale. The declaration claimed the amount of money paid by the plaintiffs to John Blubaugh on the judgment referred to.</p> <p>On the trial, on March 4, 1886, before W. J. Babe, P. J., the following points were presented by the defendants for instructions :—</p> <p>1. That as Maggie Sellers, the defendant, was a married woman at the time the note of 9th March, 1882, was given, her contract therein was void, even if the jury believe that the money was borrowed from Blubaugh for the improvement of the separate estate of said Maggie Sellers^ was necessary to the same and actually so applied, and the verdict must be for the defendant.1</p> <p>2. That as the plaintiffs sue to recover in this case for moneys paid by them as bail for Maggie Sellers, there is no liability on her part, she being a married woman, even if the jury believe that the money borrowed from Blubaugh, and for which the note was given, on which the plaintiffs became sureties, was for the improvement of her separate estate, was necessary to the same, and actually so applied, and the verdict must be for the defendants.3</p> <p>3. That as the foundation of the plaintiffs’ claim is as bail on a note for Maggie Sellers, on which judgment was entered, and from which she was released from all liability, there can be no recovery by the plaintiffs, and the verdict must be for the defendants.3</p> <p>4. That under all the evidence in this case the verdict must be for the defendants.4</p> <p>These points were all refused by the court and under instructions so to do the jury found the following special verdict:—</p> <p>The jury find the facts in this case to be, that Maggie Sellers, wife of W. H. Sellers, the defendant, owned a one half interest in a grist mill, the dam and race of which were out of repair, and the mill so constructed that the miller could not mate good flour. That she borrowed five hundred dollars from John Blubaugh on her note with her husband joining, and with the plaintiffs as her bail on the note. That Blubaugh loaned the money on the strength and faith of the bail and not on any contemplated repair or improvement of her property. That her purpose in borrowing the money was to procure it to improve- and repair the race, dam and mill, and that the money was expended in making the improvements and repairs, and that the same were necessary to be made and the repairs made at her direction. That the note was a judgment note, and was entered of record and a fi. fa. issued thereon; that thereupon she applied to the court and obtained a rule to show cause why the writ should not be stayed as to her, and her name stricken from the record of the judgment, which rule was, on ground of coverture, made absolute. And they further find that after the improvements had been made, the plaintiffs paid the note' and judgment, part thereof to the sheriff and part to David Vought, the executor of John Blubaugh, deceased. That the jury are ignorant in point of law, on which side they 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 plaintiffs, they find for the plaintiffs and assess the damages at the sum of 1631.96, but if the court are of an opposite opinion, then we find for the defendants.</p> <p>Subsequently the court filed the following opinion and decree:—</p> <p>[The jury having found a special verdict as above, the court on due consideration, after hearing argument of counsel pro and con. is of opinion that on the fgnts found and as to which there can be no controversy, the issue is proven for the plaintiffs and judgment is now directed to be entered for the sum of 1616.01, found by the jury in the special vérdiet in favor of the plaintiffs.] 7</p> <p>The authorities rule that a married woman’s power to contract for improvements as well as repairs to her real estate is inseparably connected with her right to take and hold real estate for her own separate use: Germania Savings Bank’s Appeal, 95.Pa. 332. That a judgment note, or any note or bond given for a debt so created or money borrowed for the purpose, is void, is well established. But in Lippincott v. Hopkins, 57 Pa. 328, a judgment founded upon a narr. charging that a married woman “then and there having and enjoying her own separate estate hired and employed plaintiff to furnish work, labor and materials in and for the same, being necessary for said estate, was sustained.” In Kuhns v. Turney, 87 Pa. 497, it was held that her power to contract arises ex necessitate. See also, Wagner v. Hindman, 3 Penny. 251. The case of Germania Savings Bank’s App., 95 Pa. 332, clearly shows that her contract can be enforced by a personal action on the contract and not exclusively by a mechanics lien or action in rem. To sustain such an action, the record and proof must show that she was the owner of a separate estate, that it was necessary to improve it, that the debt sought to be recovered was incurred in the improvements, and at her request, etc., all of which in this case fully appears.</p> <p>[Clearly the lender of this money, as it was borrowed for the purpose of improving her estate, and with her knowledge and directions really so used, the improvements and repairs made being necessary, if he had sought to recover on the contract (the note as to her being void) could have recovered.] 5 Unless it be so, that while she can create a debt to improve , her separate estate, she cannot bind herself for borrowed money to improve her separate estate, though the record show-all that is needed, and the proof establishes the loan of tha moneys and use by her of the money in improving her estate. That she can so bind herself by contract it seems to us is apparent.from Heugh v. Jones, 32 Pa. 434. The court says, We will stand as long as we can upon the com. law doctrine that in borrowing money she .acts for her husband and not for herself, unless she be a sole trader, or the money be applied for the benefit of her separate estate. In that case, the proof failed to show that the money borrowed was applied to improving her separate estate. In the case in hand it was borrowed for that purpose and so applied. But as the lender of the money collected it from the sureties, how do they stand ? A surety paying the debt, is entitled to all the rights and securities of the principal: Wright v. S. M. Co., 82 Pa. 80. But he is also entitled to all the rights and remedies against the principal debtor, and all the means of payment. On payment by the surety he becomes clothed with all the legal garb with which the contract which he has discharged was invested, and becomes substituted to every equitable interest and purpose in the place of the creditor whose claim he has paid: Hess’s Estate, 69 Pa. 275. All points in conflict with this ruling stand refused.</p> <p>Judgment having been entered for the plaintiffs for $616.01,6 the defendants took this writ, assigning for error:</p> <p>1-4. The refusal to affirm defendants’ points.110 4</p> <p>5. The part of the charge embraced in [ ] 5</p> <p>6. The direction for judgment for $616.01, the jury having fixed the sum at $631.96.6</p> <p>7. The part of the charge embraced in [ ] 7</p>

<p>ERROR. TO THE COURT OF COMMON FLEAS OF LANCASTER COUNTY.</p> <p>No. 303 January Term 1887, Sup. Ct.; court below, Trust Book, No. 11, p. 193.</p> <p>This was a proceeding for a mandamus on the petition of John F. Evans against J. H. Phillipi, president, et alios, officers and members of the board of school directors of Warwick township.</p> <p>The petition set forth in substance that the petitioner, on the third Tuesday of February, 1886, had been duly elected collector of taxes for the said township for one year beginning April 5,1886, under the act of June 25,1885, P. L. 187, had filed an approved bond and had been duly qualified; that the said board of school directors had levied and assessed a school tax for said township for the year 1886 but had refused to issue the duplicate for the collection thereof to the petitioner; praying for a mandamus upon the said board of school directors commanding them to issue the said duplicate to the petitioner with their warrant to collect the said school taxes in accordance with the said act of assembly.</p> <p>The board of directors in their answer to the rule to show cause, etc., admitted the election of the petitioner as tax collector, his due qualification, and that they had refused to issue the duplicate to him, as set out in his petition, but averred: That no tax collector could be elected for Warwick township as the taxes of said township had been collected under the provisions of the special and local act of April 12, 1852, P. L. 327, extended to said township by the act of February 9,1853, P. L. 57; that they were not required to deliver the tax duplicate to the petitioner, as the said board some three years before by a resolution duly passed had authorized the collection of the school tax in the manner provided by the act of April 21, 1869, P. L. 87, and said taxes had since then been collected in the manner so provided; that the said act of June 25,1885, had no application to the collection of the school tax in said township, and moreover was unconstitutional.</p> <p>To this answer the plaintiff demurred, that the answer was not sufficient and after argument, the court, J. B. Livingston, P. J., filed the following opinion and decree:</p> <p>On December 20, 1886, the petitioner filed a demurrer to the answer of the respondents. The respondents having, as shown by their answer, by resolution of the board adopted the provisions of the act of April 21, 1869, for the collection of school tax in Warwick township, repealed the special local acts of 1852 and 1853 to which they refer as relating to the collection of school tax in said township; an examination of the case as presented, shows that under our rulings heretofore, in eases of this character, we shall be obliged to make tins rule absolute, provided, on investigation we find the act of June 25, 1885, “ regulating the collection of taxes in the several boroughs and townships of this commonwealth ” to be constitutional. The question of its constitutionality is now for the first time raised in this court, and as here presented, it does not appear to have been passed upon by the Supreme Court of the state. Is the act of June 25, 1885, P. L. 187, entitled' “An act regulating the collection of taxes in the several boroughs and townships of this commonwealth” constitutional or unconstitutional and therefore void ?</p> <p>Nothing but a clear violation of the constitution, a clear usurpation of the powers prohibited, will justify the courts in pronouncing an act of the legislature unconstitutional and void: Speer v. The School Directors, 50 Pa. 150; Hilbish v. Catherman, 64 Pa. 154; Penn. R. Co. v. Riblet, 66 Pa. 164 ; Commonwealth v. Butler, 11 W. N. 241.</p> <p>All the presumptions are in favor of the constitutionality of an act of assembly: Craig v. First P. Church, 88 Pa. 42. Our constitution is a limitation, and not a grant of power. The legislature possesses all powers inherent in legislative bodies unless expressly prohibited; and the prohibition must be so clear as to preclude all doubt: Kilgore v. Magee, 85 Pa. 410; Lehman v. McBride, 15 Ohio 602; Dyson v. Bradshaw, 23 Cal. 531. It results from the very nature of the case, therefore, that when the question properly arises and a statute is found by the courts to be unconstitutional, they must declare it void: Powell v. Commonwealth, 19 W. N. 25.</p> <p>And the constitutionality of an act may be considered and determined in any of the numerous modes by which legal questions are brought before a court: Philadelphia v. Pepper, 2 Pa. C. C. R. 287. It is the duty of courts to enforce the constitution as they find it. Attempts in covert modes to defeat its plain provisions must be set aside, with the same certainty as when the methods are open. Even if the intention be innocent, and yet the legislation comes within the constitutional prohibition, it must not be tolerated: Wheeler v. Philadelphia, 77 Pa. 350; Montgomery v. Commonwealth, 91 Pa. 125.</p> <p>Article III., sec. 7, of the constitution of Pennsylvania of 1873 among other things declares that “ The General Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts, .....regulating the management of public schools, the building or repairing of school houses and the raising money for such purposes, ..... creating offices, or prescribing the powers and duties of officers in counties, cities, boroughs, townships, election or school districts......Nor shall the General Assembly indirectly enact such special or local law by tbe partial repeal of a general law.”</p> <p>Article IX., section 1, of the constitution, “ Taxation and Finance,” declares inter alia, that “ all taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.”</p> <p>The Supreme Court has decided that article III., section 7, of the constitution prohibiting local of special legislation, does not prevent classification of municipal corporations with reference to taxation, and the act of May 23, 1874, classifying cities according to their population, is constitutional; that a statute relating to persons or things as a class is a general law; that the legislature has the power to classify cities according to the number of their population, and the fact that some of the classes contain each but one city does not make the classification invalid, or bring it within the constitutional prohibition of section 7, article III., of the constitution, which forbids local or special legislation: Wheeler v. Philadelphia, 77 Pa. 338; Kilgore v. Magee, 85 Pa. 401. It has also decided that such classification is sustained only on the ground that it is absolutely necessary: Wheeler v. Philadelphia, supra; Kilgore v. Magee, supra; Commonwealth v. Patton, 88 Pa. 258; Montgomery v. Commonwealth, supra; Scowden’s Appeal, 96 Pa. 422; Davis v. Clark, 106 Pa. 377. But in the case before us, there has been no classification. No classification of school districts has yet been attempted. They all stand on the same elevation, and until they are classified, any act affecting them must affect all or none: Commonwealth v. Patton, supra; Scowden’s Appeal, supra; Davis v. Clark, supra; McCarthy v. Commonwealth, 1 Cent. R., 111.</p> <p>The general rule is that the rights of persons and property must be secured by general laws, which must be uniform and in force everywhere throughout the commonwealth: Scranton School District v. Lackawanna I. & C. Co., 4 Cent. R, 311; Philadelphia v. Pepper, 2 Pa. C. C. R. 287. Laws are general, where every person who is brought within the relations and circumstances provided for is affected by the law: Scranton School District v. Lackawanna I. & C. Co. supra; People v. Wright, 70 Iff. 388; Williams v. Rhodes, 81 111. 585. Pub-lie acts relate to the public at large: Dwarr. Stat. 464; 1 Kent 460. A general or public act is an universal rule that regards the whole community, and of this the courts of law are bound to take notice judicially and ex officio : JB1. Com. 85.</p> <p>In Davis v. Clark, supra, the Supreme Court, in reference to the act then before it, say: “ It was not then a general act, applicable to every part of the commonwealth. It did not apply to a great number of counties; but there'is no dividing line between a local and a general statute. It must be either the one or the other. If it applies to the whole state, it is general ; if to a part only, it is local. As a legal principle, it is as effectually local, when it applies' to sixty-five counties out of the sixty-seven, as if it applied to one county only. The exclusion of a single county from the operation of the act, makes it local: ” Scranton v. Silkman, 4 Cent. R. 319, 320. His excellency, Governor Pattison, in speaking of local legislation with unerring exactitude, declares that the prohibition of section 7 of article III., of the constitution of Pennsylvania, against the passage of local or special laws regulating the affairs of counties, cities, wards, boroughs or school districts, is absolute: Scranton School District v. Lackawanna I. & C. Co., 4 Cent. R. 311, note.</p> <p>The prohibition against local or special laws upon this subject, includes the command that, whenever laws relating thereto are passed, they must be general in their application. Anything which defeats or limits their general application is obnoxious to the prohibition. If certain counties or cities cannot be specially legislated for by name, they cannot be legislated for by including them in an exception to a general law. The inhibition is against passing laws which will operate upon them alone, to the exclusion of others in the same general category. If local results are or may be produced by a piece of legislation, it offends against this provision of the constitution and is therefore void: Scranton School Dist. App., 4 Cent. . R. 314; McCall’s Appeal, 86 Pa. 258; Seowden’s Appeal, supra; Davis v. Clark, supra; McCarthy v. Commonwealth, 16 W. N. 497. In Commonwealth v. Carey, 2 Pa. C. C. R. 293, it was held that the proviso to the act excepting “ counties containing a city co-extensive with a county,” renders the act local, and, the matter or subject being within the inhibition of article III., section 7, of the constitution of 1873, the act of 1883, P. L. 99, is unconstitutional and void.</p> <p>Under the authority of Scranton v. Silkman, 4 Cent. R. 317, it is questionable if the provisions and exceptions to be found in many acts of assembly in Pennsylvania, and among them this act of June 25, 1885, relating to the collection of taxes,' saving, as they do, special laws, do not offend against the constitution. In State v. Board of License, 4 Cent. R. 83, where the constitution declared that “ the legislature shall not pass private, local, or special laws in any of the following enumerated cases, that is to say,.....regulating the internal affairs of towns and counties; appointing officers or commissioners to regulate municipal affairs;.....tlie legislature shall pass general laws providing for the cases enumerated in this paragraph,” etc., etc. The act of assembly in this case provided that it shall be lawful for any city in the state containing more than 15,000 inhabitants to provide by ordinance for a department to be called the license and excise department. It also contained a proviso that the provisions of tins act shall not apply to any city in which the granting of such license is now vested in a board of excise, or excise commissioners, or in any city where the Court of Common Pleas how grants license. Reed, J., in delivering the opinion of the Supreme Court, says: “This legislation is, in my judgment, clearly special.”</p> <p>Section 13 of the act of June 25,1885, P. L. 189, declares that so much of all general acts heretofore passed, as is inconsistent herewith, is hereby repealed; “ but this act shall not apply to any taxes, the collection of which is regulated by a local law.” A reference to “The Common School Laws of Pennsylvania and Decisions of the Superintendent,” revised and arranged by J. P. Wiekersham, LL.D., in 1879, he being then superintendent of public instruction, shoAvs that at that time there were in Pennsylvania twenty-six special local acts of assembly relating to the collection of school taxes alone, some embracing a whole county, others one or more districts' in a county. In our own county, in twenty-one districts, the school tax was then collected by local special laws. Some of those local acts may have been repealed, but many yet remain and are included in the excepting clause of the act. In addition to this we now find the county commissioners of Lancaster county applying to the legislature of Pennsylvania for the repeal of twelve local or special acts of assembly, relative to the collection of taxes in certain districts in this county...... How many such local or special acts there are in other counties in this state, we have made no effort to ascertain; but be there few or many they are all embraced in the exception, and the act of 1885 does not apply to them.</p> <p>There can be no sound reason advanced or suggested why one county in the state, or a few townships or school districts in a county, should, by reason of local or special legislation, have a different mode of selecting tax collectors and collecting taxes from the other counties in the state, or districts in the same county. The act of June 25, 1885, by indirection legislates specially for each of the districts governed by these certain special local laws, as clearly as if a separate act had been passed for or applying to each, and tins makes it a local law, and not a general law. Indeed, it does not claim to be a general law. It does not by its terms extend to and embrace all the school districts or townships in the state, with reference to the collection of taxes. It is a local special act, and to sustain it would, in our judgment, open the gates to local legislation on any of the numerous subjects expressly forbidden by the articles and sections of the constitution cited, and enable the legislature to do by indirection that which the constitution expressly forbids it to do directly. Of this act it may be said, as was said by Mr. Justice Paxson, in Scowden’s Appeal, supra, “This act is an attempt to evade the constitution,” which declares that all taxes shall be levied and collected under general laws. “ It is special legislation under the attempted disguise of a general law. Of all forms of legislation this is the most vicious.” If, then, laws are only general where every person who is brought within the relations and circumstances provided for is affected by the law; if those laws only are general which apply to every part of the commonwealth which is not affected by constitutional or legal classification; if there be no dividing line between a local and a general statute ; if, when a statute applies to the whole state, it is general, and when only to a part of the state, or, if when local results either are or may be produced by it, it is local and offends against those provisions of the constitution; if the exclusion of a single county of the sixty-seven from its operation makes an act local, a fortiori, the exclusion of a number of special and particular school districts, or tax collection districts, or townships, in each or many of the counties in the state, which is done by the act of 1885, makes it local: See Scowden’s Appeal, 96 Pa. 424; Morrison v. Bachert, 112 Pa. 328; Davis v. Clark, supra; and Appeal of the City of Scranton School District, supra.</p> <p>Having, therefore, as we believe, ascertained this act of June 25,1885, to be a local and not a general act, and the subject matter within the inhibition of article III., section 7, and article IX., section 1, of the constitution of 1873, we are of opinion that the act of June 25,1885, P. L. 187, entitled “An act regulating the collection of taxes in the several boroughs and townships of this commonwealth,” is unconstitutional and void. We,, therefore, enter judgment for the respondents on the demurrer, and finding their answer sufficient, we discharge the rule to show cause why a writ of alternative mandamus should not issue, the costs of the proceedings to be paid by the petitioner.</p> <p>Rule discharged.</p> <p>The petitioner then took this writ assigning that the court erred, in not making absolute the rule to show cause, etc., in declaring the act of June 25, 1885, unconstitutional, and in entering judgment for the respondents on the demurrer.</p>

<p>FROM THE DECREE OF'THE ORPHANS’ COURT OF PHILADELPHIA COUNTY.</p> <p>No. 35 July Term 1886, Sup. Ct.; court below, No. 511 October Term 1883, O. C.</p> <p>This contention arose in the court below in the adjudication of the second account of Mr. John H. Campbell, executor of the will of Mrs. Annie Fitzpatrick, deceased.</p> <p>On January 8,1886, before William B. Hanna, P. J., auditing judge, the following facts appeared: Annie Fitzpatrick, the wife of William Fitzpatrick, died leaving a will, dated January 19,1882, which after her death .was duly admitted to probate and letters issued thereon. In her will the testatrix bequeathed $300 to her mother, Honora Magoohan, and -$500 to her sister, Mary Magoohan. The residue of her estate ivas given, subject only to the interest of her husband under the intestate laws, unto such children as she might have born to her. In case of her death without leaving any children surviving her, the husband was given $1,000, in addition to his interest under the intestate laws, and the balance was disposed of in equal shares to the said mother and sister, and others named. There was a codicil to said will, dated February 2, 1882, in words as follows:—</p> <p>I hereby make this codicil to the foregoing will. I bequeath my gold watch and chain, gold set breastpin and ear-rings, and my clothing; also the feather bed and mattress, my large trunk and its contents, unto my sister Mary Magoohan.—</p> <p>On April 5,1882, the first and only child of the testatrix was born. The testatrix died April 22,1882, and the child on July 17, 1882. ' A few days after the death of the testatrix, Mary Magoohan, to whom the trunk and its contents had been given, opened the trunk and found therein a tin box in which was a certain savings fund book, showing deposits in the Philadelphia Savings Fund to the amount of $765-, and a large paper envelope addressed to Miss Mary Magoohan, which, being opened in the presence of her brother, Patrick Magoohan, was found to contain $1,800 in bank notes and the following letter in the hand-writing of testatrix.</p> <p>Mabch 21,1882.</p> <p>Deab Sisteb Maby — I write these few lines to tell you what I would have you do in case it should please the blessed Lord to call me out of this world at this perilous time, which is so near at hand. Now, dear sister, there is not one on this earth I would place as much confidence in as I do in you, and I have not the least doubt but you will do exactly as I would, and as I here direct you. Never breathe one word of this to any one. Now, dear sister, in the first place always treat Willie kindly, no matter what faults you may see in him, and no matter who may be against him treat him kindly on my account, for you know how devoted I was always to Mm, and if he gets married again do not blame him for it, because he is young. Now with regards to the place, he knows how it is situated as well as you or I, so do not let him find you out in a lie'. He knew I belonged to the building society, and he knew I had the bonds, but he does not know I have the money you will find enclosed in this letter. Now what I want you to do is to take the eighteen hundred dollars you will find and deposit it in the following banks : six hundred in the old Saving Fund, six in the Beneficial Fund, Twelfth and Chestnut, and six in the Western Saving Fund, Tenth and Walnut street, and the book you will find in the. tin box take to Mr. Campbell and give it to him. Now as to what I want done with the money, for God’s sake do the following: In case my child lives save the principal for it and use the interest as you please; see that the cMld gets a proper education, and do not let it want for anytMng you can give it. In case it dies you will have the money and no one will know anything about it. I need not tell you to have masses said, for I know you will not forget that. I have some of .that money for the last ten years, and all of it for the last six years, so now my conscience feels easy about it, for I know you will do the same by my child if it lives as I would do myself. So that’s all I have to say. Good bye. God bless and spare you long life. Don’t forget to pray for me. '</p> <p>Your loving sister, now- and always,</p> <p>Good bye. Annie.</p> <p>Mary Magoohan took the money and savings fund book and delivered them to the executor shortly after finding them, and at the same time exhibited to him the above letter.</p> <p>The first account of the executor embraced the whole estate except the said $1,800 and the amount of the savings fund deposit, $765, but these two sums formed the total of the second account for adjudication in this proceeding. The auditing judge ruled:—</p> <p>The material part of the letter is in these words: “Now as to what I want done with the money, for God’s sake do the following: In case my child lives save the principal for it and use the interest as you please; see that the child gets a proper education, and do not let it want for anything you can give it. In case it dies you will have the money and no one will know anything about it.”</p> <p>This sum of $1,800 is now claimed by Mary Magoohan as a legacy to her, while on the other hand it is claimed by the husband to be a part of her estate, and to be disposed of under her will.</p> <p>Under the facts stated the auditing judge is of opinion that the letter referred to is in the nature of a codicil to the will of testatrix, although it cannot be admitted to probate as such. Second: that as such codicil it shows the intention of testatrix to give the said sum of money to her sister in trust, to apply the income to her own use, and pay the principal to the unborn child of testatrix in case he or she survives. But upon the death of such child then her sister to have the money absolutely. The contingency in the mind of testatrix occurred. Her child was born and died in the lifetime of her sister.</p> <p>Without further elaboration of the question, the claim of Mary Magoohan seems to be well sustained by Fosselman v. Elder, 98 Pa. 159, and is allowed.—</p> <p>A distribution was then ordered, allowing to Mary Magoogan the $1,800, lees the collateral inheritance tax and to Wm. Fitzpatrick, as the surviving husband of testatrix and heir to his deceased minor child, the balance of the account, being the savings bank fund, less costs and expenses. To this decree exceptions were filed by Mary Magoohan, that the court erred in not awarding to her the whole of the balance after payment of costs and expenses; and by Wm. Fitzpatrick, that the court erred, (1) in treating the letter of March 21, 1882, as a codicil to the will; (2) in awarding the $1,800 to Mary Magoohan instead of to the exceptant, with the savings bank fund. On argument of these exceptions, the court in banc, opinion by C. B. Peneose, J., ruled as follows:</p> <p>It may be conceded that, standing by itself, a bequest of a trunk, of a chest, or a desk, would carry only the article mentioned and not anything which it may be found to contain; but it would be going very far to say that the same rule applies where the gift, as in the case now under consideration, is of the “ contents,” no less specifically than of the trunk itself. Nor can it affect the question that these contents consist, in whole or in part, of money, jewelry, notes, bonds, etc., etc. The testator having used the trunk as a receptacle or safe for her valuables, and having in express terms and without qualification given the contents, no principle of interpretation will permit an exception to be implied simply by reason of their nature. It is to be presumed that the intention was precisely what the words import.</p> <p>If therefore the question rested merely upon what appears on the face of the codicil by which this testatrix gave to her sister Mary her “ large trunk and its contents,” there can be little doubt that all the money and evidences of indebtedness found in the trunk would pass to the legatee absolutely. But part of these contents was a letter, addressed by the testatrix to the legatee, setting forth the terms upon which the gift was made; and while this letter lacked the formalities of execution required by the statute relating to wills of married women, and could not, therefore, be proved as an independent codicil, it cannot, we think, be disregarded in determining the disposition of the estate. Had the testatrix in the codicil given the trunk and its contents “upon the terms set forth in a paper there to be found,” it would be no undue extension of the principle illustrated by Baker’s Appeal, 107 Pa. 381, to hold that the paper thus referred to was to be treated as incorporated in the codicil, under the maxim, verba illata inesse videntur. But the manner of reference is immaterial; it may be either by express language or by implication. The question is one of intention only, and when among the contents given is found a carefully expressed paper defining precisely how far the legatee is to hold beneficially, no one can doubt the existence of the intention. Should the paper referred to be found, as in the present case, to be of later date than the codicil of which it. was intended to be part, the effect would be simply to defeat the operation of the codicil at all, by showing that it was an incomplete, imperfect instrument. Or, if the legatee is permitted to take under the codicil, the acceptance must be of the gift as an entirety; the letter was an integral part of it, and good conscience forbids that its terms should be repudiated by the legatee, who in equity will be treated as a trustee for those intended to participate in the benefit.</p> <p>Assuming, therefore, as indeed she has herself assumed, that the legatee took upon the terms mentioned in the letter, it remains to consider what those terms are. The testatrix died in her first confinement, and the letter was written in apprehension of this result. The child survived her but a few months. The letter, which was found in the trunk inclosed in the same envelope with the money and deposit book of the testatrix, was as follows: [Here quoted.]</p> <p>The obvious meaning of this paper is that the money should be held for the child of the testatrix during its minority and the income applied, at the discretion of the sister, for its education and benefit. The principal was to be “saved” for it. The gift is not restricted to the life of the child, and the limitation to the sister in her own right “in case” the child should die, must, under the decisions in Pennsylvania: Caldwell v. Skilton, 13 Pa. 152; Mickley’s Appeal, 92 Pa. 514; Fitzwater’s Appeal, 94 Pa. 141, be understood as referring to a death occurring in the lifetime of the testatrix. As the child survived, the gift became absolute, and at its death the right to the money passed to the father under the intestate laws.</p> <p>Another view may be taken of the case which leads to precisely the same result: The manifest purpose of the testatrix in thus attempting to dispose of so considerable a part of her estate under the description of contents of a trunk, with a letter enjoining secrecy on the part of the legatee as to the nature of such contents, was to conceal from her husband the fact of her ownership, and thus induce him to accept the provision made for him by her will instead of taking against it. This was a fraud as against the husband; and such a codicil should not be suffered to confer any rights upon the legatee, who is a mere volunteer. The attempted disposition being for this reason void, the property passes to the residuary legatee, who, fortunately, is the child of. the testatrix — the very person whom she intended to benefit.</p> <p>It is greatly to the credit of the sister that she did not make herself a party to the effort to conceal from the husband the extent of his wife’s estate, and that all the facts, both as to the money and the existence of the letter, were fully disclosed by her.</p> <p>The exceptions on the part of William Fitzpatrick are sustained, and the adjudication modified accordingly.</p> <p>Both funds having thus been awarded to Wm. Fitzpatrick, Mary Magoohan then took this appeal, assigning the decree of the court in banc for error.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE DAUPHIN COUNTY.</p> <p>No. 8 May Term 1887, Sup. Ct.; court below, No. 48 January Term 1886, C. P.</p> <p>John T. Ensminger brought suit on November 25, 1885, against Charles S. Segelbaum to recover the amount of an account for merchandise sold and delivered between September 29, and November 10, 1885, amounting to $888.52.</p> <p>The plaintiff was a dealer in carpets and house'-furnishing goods, in Harrisburg. The defendant was a man of wealth, residing in the same city and conducting a large dry goods and variety store; his family, consisting of his wife and five children, two sons and three daughters, from ten to twenty years of age. He kept Ms carriage, a man servant and several maid servants. The members of the family were proMbited from contracting debts without his knowledge. Purchases for family use on credit were kept on pass books. In the spring of 1885, the plaintiff had sold goods on the order of defendant’s wife, for wMch the defendant had refused to pay, and payment was not made until a judgment had been recovered for the amount. A verbal notice was then given by the defendant to the plaintiff not to sell any goods to Ms wife on Ms credit. A like notice was given in June, 1885, as admitted by the plamtiff in Ms testimony. A like notice was again given in October following, when the plaintiff went to measure the defendant’s rooms for carpets. On November 3, 1885, a written notice was served upon the plaintiff, signed by the defendant, wMch was as follows :</p> <p>I again notify you that I will not pay for any goods or articles wMch you may sell or deliver to anybody without a written order from me. I am fully able to attend to my own business, as you well know. I have notified you several times before, and notwithstanding all tMs you still persist in sending me bills about wMch I have never been consulted at all, and for all these articles I positively refuse to pay. Very respectfully.—</p> <p>The goods m the account sued for were carpets, rugs, curtains, lambreqmns, window cornices, etc., many of wMch were kept on sale in defendant’s store, and others would be ordered by Mm when desired by Ms customers. The articles were purchased by the defendant’s wife without Ms knowledge or consent, delivered at his house and fastened upon Ms floors and windows in Ms absence.</p> <p>These facts appearing in the evidence, the court, J. W. Sim-ONTON, P. J., answered the defendant’s points and charged the jury as follows:</p> <p>The trial of tMs case has consumed a good deal of time ; but as we look at it now there is not very much for you to do. There is one point perhaps, and but one for you to determine. We will, in the first place, read to you the points submitted by the defendant, and answer them:</p> <p>1. The defendant having forbidden Ms wife to purchase goods from the plaintiff on credit, and having notified the plaintiff not to sell to her, the defendant is not responsible for the price of the goods in suit, and the verdict must be for the defendant.</p> <p>That point is refused.1</p> <p>2. As the plaintiff had notice before he furnished the goods that the defendant had forbidden his wife to buy on credit, there can be no recovery in this case for the price of the goods, even though the goods were not returned.</p> <p>That point is refused.8</p> <p>8. A husband is not bound by the contracts of his wife unless made by his authority, except he make no provision for her and his family; and even then he is only liable for necessaries; and as the evidence in this case is clear and uncontradicted that the husband did support his wife and family, there can be no recovery by the plaintiff.</p> <p>That point is refused.3</p> <p>4. The articles contained in the plaintiff’s bill are not necessaries, and the plaintiff cannot recover.</p> <p>That point is also refused.4</p> <p>These points are all refused, for the reason that if we were to affirm either of them, we would take the case entirely from the jury and decide it as a matter of law; whereas we conceive that there is a question of fact in the case for the jury. Therefore we cannot affirm either of the points presented by the defendant.</p> <p>It has been said to you by the counsel for the plaintiff that there is really but one point in the case, and that is the point which arises on the question of ratification. We think that is fairly so. If the defendant did not ratify the purchase of those articles, then we think there is not sufficient evidence in the case to warrant a recovery by the plaintiff. We will, therefore, confine our instructions to you to the question of ratification.</p> <p>As appears from the testimony these goods were purchased by the wife, and were delivered to the house of the defendant. He alleges, and has given testimony tending to show, that he had notified the plaintiff not to sell them to his wife ; notified him that he would not pay for them; notified ■ him that his wife had no authority to purchase. There is evidence of such notice at perhaps three different times, and one or two of the notices at least, made at a date prior to the time when any of these goods were furnished. The written notice was dated the 2d of November, and was served on the 3d of November, as the witness testifies. That was after a good portion, perhaps — but that is for you to determine, whether 'the goods, more or less, had been delivered prior to that time. The other notices testified to were given, both of them, at an earlier date. One of them was said to be, and I think the plaintiff himself testified, that one of the conversations in regard to the wife not having authority to purchase, was at the time he was seeking to collect a prior bill, which I believe was at an earlier date, and at a date earlier than any of these purchases. [If you find that these notices were given, and that the goods were sold notwithstanding the notices, then the defendant would not be bound to pay for them unless he afterwards ratified the purchase. That means, unless he afterwards treated the goods as Ids own; accepted them, kept them, used them, treated them as his own.] 5</p> <p>There is testimony tending to show that he said to the plaintiff that he would return them, or that he would throw them out of the house. There is testimony, I believe, given by both sides that he ordered the plaintiff out of the house at one time when he came there to measure for some of the carpet. Did he return them ? Did he keep them subject to the order of the plaintiff ? For it would not be necessary that he should actually take them back himself. If the plaintiff sold the goods to the defendant’s wife after he had notified him that she had no authority to buy, the plaintiff would not be bound to go to the trouble and expense of taking those goods back; and if he notified the defendant to come and get them, that he held them subject to the defendant’s order, that would be all that he was bound to do. He could of course have taken them back and delivered them, and in that event he would not have been bound to pay for them. [You will have to determine what he did do; and if you find that he did not accept those goods; if he did not make them his own by treating them as his own; that he did not use them in his house and in his family; put them to the ordinary use that goods of that kind are for, or use them himself, or allow his family to use them; if you find that he did not do that, then he would not be liable to pay for them. But if you find that he did do that — that he used the goods for his house — the carpet upon the floor and the curtains in the places where they were intended to be put, and kept them, and had them, and still keeps them, then it would not be fair or honest that he should not pay for them. He was not bound to use them when his wife bought them contrary to his order, and if he returned them to the defendant, he could not be required to keep them.. If he did keep and use them, then he purchased them as his. own.] 6 If one buys goods for me, claiming to be an agent for the purchase, and he is not my agent, I do not need to take, the goods, and I am not bound to pay for them. If I choose to take them after he has bought, although he had no right to buy, I have a right to keep them if I choose; but I am not. bound to do it. But if I do keep and make them my own,, and use them, then honesty requires me to pay for them. That is really the point in the cáse. You will have to determine that from all the evidence; and, I may say, in that point of view, the question whether these goods were or were not. necessaries is of no consequence. If the wife had bought a horse and brought it home, without having a right to do it, and if the seller had been notified that she had no right to do it, yet if the defendant, the husband of the wife, keeps the horse and uses it as his own, he is bound to pay for it; or any other articles, whether a horse or not. It is the question, then, of ratifying and accepting the purchase of the particular article, whatever it may be. And that is the point that we will leave •for you to determine. If you find that the defendant made these articles his own; either took them down or put them up as his own; used them as his own, or for himself and family, then he would be bound in law. to pay for the price of them. If he didn’t; if he held them subject to the order of the plaintiff; notified the plaintiff to come and take them; kept them set aside for the plaintiff; then he would not be liable. You must determine the case according as you find the facts.</p> <p>A verdict was rendered in favor of the plaintiff for 1853.88, and judgment entered; thereupon the defendant took this and assigned for error:</p> <p>1-4. The answers to defendant’s points.1-4</p> <p>5, 6. The parts of the charge embraced in [ ] 5 [ ] 6</p>

<p>CERTIORARI TO THE COURT OE COMMON PLEAS OE ADAMS COUNTY.</p> <p>No. 17 May Term 1887, Sup. Ct.; court below, No. 132 January Term 1887, C. P.</p> <p>The Gettysburg Battlefield Memorial Association was incorporated under the act of April 30,1864, P. L. 670, and the supplementary act of April 24, 1866, P. L. 1075. Viewers appointed to assess damages on the laying out of an avenue, under § 3 of the supplementary act, awarded to John L. Sherfy, a land owner, $1,000. The report was filed June 21, 1886. On June’28,1886, the association made the usual affidavit and filed an appeal. On February 27,1887, Mr. Sherfy moved the court to strike off the appeal, first, because the costs had not been paid, and, second, because no recognizance had been entered into by the appellant. On March 7,188Y, the association filed an answer, averring, first, that by the terms of the statute the association had the right of appeal without paying the costs and entering into recognizance, and, second, that, should the court be of opinion that under the law payment of costs and the recognizance were required, the association was ready to submit to the requirement.</p> <p>On March 8, 1887, the court, Vm. McClean, P. J., sustained the motion made, dismissed the appeal and entéred judgment in favor of Mr. Slierfy for $1,000 and costs. Thereupon the association took this writ and assigned that the court erred in sustaining the motion to strike off the appeal, in refusing to permit the association to perfect the appeal if defective, and in entering judgment in favor of the land owner.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE DAUPHIN COUNTY.</p> <p>No. 26 May Term 1887, Sup. Ct.; court below, No. 155 November Term 1886, C. P.</p> <p>This was an ejectment brought by Daniel Updegrove and, others, children and heirs at law of Elizabeth Updegrove, deceased, against J. Martin Blum, to recover fifty acres of land in Wiconisco township.</p> <p>About April 1, 1853, Elizabeth Updegrove, wife of John Updegrove and living with him, having the title in her own right to the landin dispute, conveyed it to one William Wagner, without her husband joining in the deed. Wagner’s title subsequently passed regularly to J. Martin Blum, the defendant, and Wagner and those claiming under him were continuously in possession under said deed from the date thereof in April, 1853, to the institution of this action.</p> <p>Elizabeth Updegrove died in 1857, leaving to survive her, her said husband and children, the plaintiffs herein. In 1872, John Updegrove, the husband, brought ejectment against the present defendant to recover his curtesy estate, but upon the trial of that cause it was made to appear that the husband had received as his own the purchase money on his wife’s conveyance in 1853 and was thereby estopped. The husband died on April 25,1886, and on October 6, 1886, the present action was instituted by the wife’s children as stated.</p> <p>The trial showing the foregoing facts, the plaintiff asked the court to instruct the jury that upon the whole evidence in the case the plaintiffs were entitled to the verdict, which point was denied, and the court, J. B. McPherson, J., charged the jury as follows :—</p> <p>In. this case we assume that the title to this property was in Elizabeth Updegrove before 1853. We assume also that she made a deed at that time in which her husband did not join. That deed was void. Her grantee in that deed was a Mr. W agner, through whom the defendant in this suit now claims the title. Since 1853, however, as far as the evidence goes, the defendant and those under whom he claimed have had uninterrupted and continuous, and so far as appears, we say to you, adverse possession of the property in dispute. The plaintiff concedes that that would be the effect of all the evidence in the case if it were not for the record, which he offered and which the court admitted in evidence, of another suit brought in 1872 by John Updegrove against the present defendant and some others. In that case there was a defence by Mr. Blum and the others upon the ground that John Updegrove had no right to recover, because he had received the purchase money of the property at the time his wife made the deed, in 1853; that is to say, of course, that although he had not actually joined in the deed, he had got the fruits of the transaction, all the benefit, and therefore he should not have possession of the land and the money too. Now, the evidence in that case, raising that issue and deciding that issue, does not seem to me to be inconsistent with the adverse character of the defendant’s possession ; and as that is, in my judgment, clearly the point of this case, as that is the present attitude of my mind on this subject, we instruct you- that the defendant’s possession is sufficient, under all the evidence in the case, and that the plaintiffs cannot recover; and you will render your verdict in that way.—</p> <p>A verdict having been returned as directed and judgment entered, the plaintiffs took this writ, assigning for error the refusal of the court to direct a verdict for the plaintiffs, and-the direction of a verdict for the defendant.</p>

<p>EBB OB TO THE COUBT OE COMMON PLEAS OE DAUPHIN COUNTY.</p> <p>No. 25 May Term 1887, Sup. Ct.; court below, No. 299 November Term 1886, C. P.</p> <p>By the act of May 7, 1882, P. L. 528, the corporation named “ The President, Managers and Company of the Schuylkill Bridge Company at Matson’s Ford,” was created, and under that act and its supplements of March 19, 1838, P. L. 121, and April 16, 1838, P. L. 625, the company, with a capital stock of $45,000, erected and maintained a bridge across the Schuylkill river at Conshohocken, in Montgomery county.</p> <p>Under the act of May 8, 1876, P. L. 131, and the supplementary act of May 3, 1878, P. L. 41, proceedings were begun in the Court of Quarter Sessions to have this bridge declared a county bridge. The report of the viewers awarded damages to the company to the amount of $75,000. This report having been finally confirmed and certified, on June 11, 1886, the county commissioners paid the award, took possession of the bridge and caused the- collection of tolls upon it to cease.</p> <p>On September 15, 1886, under the provisions of the revenue act of June 7, 1879, P. L. 112, the auditor general made and the state treasurer approved a settlement for tax upon the capital stock of said company for the year ending first Monday of November, 1886. This settlement embraced a tax of- 33 1-3 mills, amounting to $1,500, for “amount divided amongst the stockholders out of the sum realized from sale of company’s property in excess of the amount paid in on capital stock, $30,000, being a dividend of 66 2-3 per cent, upon the capital stock of $45,000.” From this settlement an appeal was taken to the Court of Common Pleas of Dauphin county, and the following specification of objections filed:</p> <p>1. There was no dividend of sixty-six and two thirds per cent, declared and divided upon the capital stock of the company for the tax year ending the first Monday of November, 1886. The only dividend declared and divided thereon was one of fourteen per cent., and the tax imposed upon the capital stock measured thereby has already been paid by the company into the state treasury.</p> <p>2. There was no division among the stockholders during said tax year of sixty-six and two thirds per cent, of profits, and, therefore, no tax can be imposed upon the capital stock of said company measured thereby.</p> <p>3. The sum of thirty thousand dollars, which the accounting officers have regarded as a dividend and made the measure of the tax of fifteen hundred dollars upon the stock of the company, was not profit and income of the company, but was damages awarded to the company on account of the loss sustained by it from the taking of' its bridge by the commissioners of the county of Montgomery, and the destruction of its business, and, therefore, does not furnish a measure for the tax upon the stock of the company as' a dividend.</p> <p>4. There is no law authorizing the imposition of the tax of fifteen hundred dollars upon said company in the manner in said account stated.</p> <p>The issue, in the form of an action of debt, was tried without a jury before J. W. Simonton, P. J., who filed the following opinion and decree:</p> <p>The defendant is a corporation which owned a bridge over the Schuylkill river at Matson’s Ford in Montgomery' county. It had a paid-up capital of $45,000. On June 12, 1886, the county commissioners took the bridge and the franchise of the defendant to take toll for passage over it, under the act of May 8, 1876. The viewers appointed, as provided by said act, awarded to defendant as “ damages sustained by the company,” by reason of the said taking, the sum of $75,000, and this amount was, during the tax year, 1886, divided among the stockholders in proportion to the number of shares of the capital sto'ck held by each. In the account settled by the auditor general and state treasurer against the defendant for tax on capital stock for said year, the excess thus divided above the amount of the capital stock of the company being $80,000 was treated as a dividend, and a tax of one half mill for each one per cent, of dividend, amounting in the aggregate to $1,500.00, was charged upon the capital stock in respect thereof, under § 4, act of June 7,1879. Defendant, claiming that its capital stock was not legally subject to this tax, appealed from this settlement, and we have now to determine the question, thus raised, as to the validity of this tax.</p> <p>The act of 1879 provides that where any corporation chartered by or doing business in this state, with exceptions which need not be nqted here, makes or declares dividends during the tax year, which amount to six or more than six per centum upon the par value of its capital stock, it shall pay a tax upon its capital stock at the rate of one half mill for each one per centum of dividend so made or declared. If then the distribution of this $30,000 among the defendant’s stockholders was the maldng or declaring of a dividend upon its capital stock the tax in question is legally imposed; otherwise it is not.</p> <p>The nature of the tax on capital stock, and the principles on which it is imposed and assessed, are so fully stated and explained in Phoenix Iron Co. v. Commonwealth, 59 Pa. 104, and Commonwealth v. Railway Co., 74 Pa. 83, that it is sufficient on these points to refer to those cases. They show clearly that whenever any part of the property of the company is actually or potentially transferred from it to the stockholders, as a return for their investment, because they are stockholders, and in proportion to the number of shares held by each, such transfer is the making or declaring of a dividend, and its amount becomes the measure of the tax to be assessed on the capital stock. The transfer may be of actual cash, or of stock purporting to represent, or actually representing, cash remaining in the treasury, or expended in increasing .the value of the property of the company; or it may be an increase of capital stock, which is made the basis of dividends to the stockholders, although no dividend, even of stock, is formally declared: Lehigh Crane Iron Co. v. Commonwealth, 55 Pa. 448.</p> <p>The mode provided for the assessment of the tax, by the act of 1879, and the acts on the same subject which preceded it, is based on the theory that the profits realized by the corporation, whether directly arising from its operations from year to year, or from the increase in the value of its property from whatever cause, will sooner or later reach the pockets of its stockholders, and that, when they do, they furnish a fair measure of the value of the capital stock, and, therefore, the amount of tax which it ought to pay. And upon the whole, no doubt, a practically fair result is attained.</p> <p>It is true that the precise measure of the value of the stock in each and every year, may not be furnished by the dividend of that year. Thus a corporation may make a profit, in any given year, of sixteen per cent., and divide but ten. In that event, its tax for that year would be only at the rate of five mills on the par value of its capital stock, instead of eight mills, as it would have been if the sixteen per cent, had been divided. But the amount undivided will remain in the treasury of the company, to be divided the next or some subsequent year, or, if invested by the corporation, will incréase the value of its property and thus enable it to make larger dividends in the future and consequently increase its rate of taxation, or, to make a stock dividend with a like result, or, to divide a larger surplus among its stockholders when it ceases business. In one form or other the profits will reach the stockholders, and in doing so will furnish a measure for the taxation of the capital stock.</p> <p>Let us take as an instance, the corporation now before us. It made dividends from year to year, and paid taxes in proportion to these dividends. [If it had from time to time divided all its profits, it would have been worth, when wound up, or when its property and franchises were taken against its consent, just 145,000, the par value of its capital stock. But it was found to be actually worth $75,000. Here there was a gain of $30,000, which must have accrued either from profits earned from year to year, which, instead of being divided, were expended in increasing the value of its property, or from the general increase in the value of property. In either case, it is a profit which the company has made, and has now divided among its stockholders, and the capital stock was worth just $30,000 more because of it, than it would have been without. If it accrued from profits undivided from year to year, these, if they had been divided, would have furnished an increased measure of taxation; if from an increase in the general value of property, and a stock dividend had been made to represent this increase in value, that also would have furnished a measure for a corresponding increase in its tax. But as it was never in any way divided until 1886, it could furnish no measure of the value of the capital stock for taxation, until then; having been then divided, it did furnish such measure, and the capital stock was then properly taxed in respect of it.] 3</p> <p>[It can make no difference in the result that the amount was awarded by a jury of viewers under the name of damages. The money was received by the corporation and divided among the stockholders, and its nature is precisely the same, whether we call it purchase money, or damages, or by any other name. The corporation wound up with $30,000 of undivided profits, and when this was divided the tax necessarily accrued.] 8</p> <p>The settlement appealed* from was therefore correct, and the commonwealth is entitled to judgment for the amount imposed.</p> <p>This amount is.........$1,500 00</p> <p>Interest from November 15, 1886, to January 25,1887, at 12 per cent., ... 35 00</p> <p>Attorney General’s commission, 5 per cent., 75 00</p> <p>Total...........$1,610 00</p> <p>For which amount let judgment be' entered, if exceptions be not filed according to law.</p> <p>The company defendent filed exceptions, that the court erred:</p> <p>1. In not entering judgment in favor of the defendants; because the defendant bridge company did not sell its bridge and franchises, and did not voluntarily part with its property, but the same was taken by virtue of acts of assembly, which practically confiscated its property to the county of Montgomery as a free bridge. The relations hitherto existing between the state and the company ceased and determined the moment the court approved of the report of the grand jury freeing the bridge from tolls and transferring it to the county. And as all the taxes that had accrued and were due to the state immediately before said approval and taking, were paid by the company, the state by reason of said dissolved relations, has no claim upon the company, for it had voluntarily destroyed the plant that hitherto had borne its annual taxes from taxable profits or income, and with it the company’s franchises and charter. Neither had the company any longer the protection the state gave it in the charter it had wiped out. The dissolution and divorce of all relations, claims, and demands between the state and the company were complete the moment the court approved the report of the grand jury and.transferred the property to the county. After the state had thus cut loose from the company and left it to its fate, the company did not, because it was powerless to do so, receive any income or profits whatever upon which a tax could be levied, and the only money the company received was for the damages done the defendant by the action of the state and now it claims to share with the defendant the damages suffered at its hands. As, therefore, ■ the reasons given by the learned court for entering judgment in favor of the plaintiff do not apply to the case at bar, they were erroneous.1 ' ,</p> <p>2. In that part of the opinion embraced in [</p> <p>3. In that part of the opinion embraced in [ ]3</p> <p>On April 19,1887, the exceptions were severally overruled and judgment directed to be entered in favor of the commonwealth for the sum found due by the court. Thereupon the defendant took this writ, assigning as errors the overruling of said exceptions, respectively.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE JEEEERSON COUNTY.</p> <p>No. 4 October Term 1887, Sup. Ct.; court below, No. 134 May Term 1883, C. P.</p> <p>This was an equitable ejectment brought on April 5, 1883, by John Nelson” against George Nelson to enforce payment of a balance of purchase money for 62 acres of land in Snyder township sold by John Nelson" to said George Nelson. On November 9,1885, the death of the plaintiff was suggested and Sarah Nelson, his administratrix, substituted. The plea was not guilty.</p> <p>On April 1,1861, John Nelson" by an agreement in writing sold to George Nelson the 62 acres of land now in dispute, part of a tract of 162 acres owned by the vendor, at five dollars per acre. The vendee paid $10 on the purchase money, took possession, made improvements and continued to reside upon the tract to the trial of the case.</p> <p>On September 11, 1861, John Morrison entered a judgment in the Common Pleas against John Nelson," Samuel Patton and Samuel Crawford for $575. In May, 1862, John Nelson" died intestate and letters of administration were granted to James Nelson, who in September, 1862, presented his petition to the Orphans’ Court for leave to sell the real estate of the decedent, described as containing 162 acres. An auditor, to whom the petition was referred, reported in favor of the prayer, setting out that 62 acres of the tract had been sold by the decedent in his lifetime to George Nelson by agreement in writing, and that the vendee had not received a conveyance. A sale of the estate of the decedent in the lands described in the petition was then ordered and made to Samuel Patton, which sale was confirmed, and on February 13, 1863, a deed was delivered. On March 5, 1863, Samuel Patton conveyed the tract of 162 acres to James Nelson in his own right. On March 6,1863, James Nelson filed his account as administrator •of John Nelson," taking credit therein for $605.41 paid by him to satisfy the judgment of John Morrison above referred to, ■and, in another item, for “Amount of article with George Nelson sold with land to Samuel Patton, with legal title, therefore not collectible, $325.94.” On May 13, 1864, James Nelson was discharged as administrator of John Nelson,b and on July 6, 1865, he conveyed by deed the tract of 162 acres to John Nelson,” the plaintiff in this action.</p> <p>On October 12, 1881, letters of administration de bonis non upon tbe estate of John Nelson11 were granted to William J. Nelson, and on November 10, 1881, George Nelson instituted proceedings in the Orphans’ Court praying for the. specific performance of his contract made with John Nelson11; which proceedings were with notice to John Nelson,6 and resulted in a decree made on April 10, 1884, that, upon the payment of the balance of the purchase money, to wit, $721.28, with interest, into court, William J. Nelson, administrator d. b. n. of John Nelson,11 should make, execute and deliver to George Nelson a deed for the land described in the petition. This decree remained unappealed from. The deed was delivered as ordered, on November 6, 1884, and the purchase money paid was subsequently distributed by an auditor, before whom the administratrix and heirs of John Nelson6 appeared claiming part of ■the fund.</p> <p>. At the trial on May 18, 1886, the foregoing facts were shown, and the plaintiff presented the following points:</p> <p>. 1. The sale by James .Nelson, administrator of John Nelson,11 to Samuel Patton, in pursuance of the order of the .Orphans’ Court,' was a judicial sale, and vested in the said Patton the interest-of said Nelson in the land in controversy, which subsequently became vested in John Nelson,6 whose administratrix the plaintiff is.4</p> <p>2. The interest of John Nelson11 was the legal estate or title to the land in. controversy, and he was entitled to the remainder of purchase money due on article of agreement.4</p> <p>3. That under all the evidence in the case the verdict'of the jury should be for the plaintiff.4</p> <p>The court, Theophilus S. Wilson, P. J., after reviewing the facts heretofore stated, charged the jury:—</p> <p>[The counsel on both sides agree that the decision of the case depends on the legal question involved, which is, that if the sale made by the first administrator was valid and passed the title as against the right of the defendant, under his agreement of sale and purchase with John Nelson, then the plaintiff is entitled to the verdict; and if it did not, then, under the evidence submitted by the defence, the verdict should be for the defendant.] 1</p> <p>[The court is clearly of the opinion that the first sale did not affect the equitable title of the defendant, and therefore the title to the land in dispute acquired by him under the proceedings in the Orphans’ Court for the specific performance of his contract, is the better title and must prevail as against the plaintiff.] 8</p> <p>The counsel have submitted points on both sides, but the ruling of the court disposes of them without further answer. [The jury are instructed to return a verdict for the defendant.] 3</p> <p>The jury having found for the defendant and judgment being entered, the plaintiff took this writ, assigning for error:</p> <p>1. The part of the charge embraced in [ ].*■</p> <p>2. The part of the charge embraced in [ ].8</p> <p>3. The part of the charge embraced in [ ] 3</p> <p>4. The refusal to affirm the plaintiff’s points.4</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE VENANGO COUNTY.</p> <p>No. 81 October Term 1886, Snp. Ct.; court below, No. 40 January Term 1885, C. P.</p> <p>This was an ejectment by W. J. Bleakley against Ann E. Adams, to recover an inlot in the city of Franklin, on which were a two-story dwelling and other buildings, brought on January 6, 1885. On April 27, 1885, Simpson Horner was added as a defendant.</p> <p>The record title of the property in dispute accrued to the respective parties to the suit as follows:</p> <p>On April 19, 1885, Josiah Adams, the husband of Ann E. Adams, executed to Thomas Daft, his father-in-law, with whom he had been in business, a judgment bond in $9,600, conditioned for the payment of $4,800 with interest, on May 1,1856; which bond bn the day of its date was assigned by Thomas Daft to Simpson Horner, whose wife was a sister of Mrs. Ann E. Adams. On May 11, 1858, judgment was entered on said bond in favor of Thomas Daft for use of Simpson Horner.</p> <p>On March 6, 1865, Charles H. Raymond conveyed the prop- ' erty in dispute to Mrs. Ann E. Adams, the deed being recorded on January 20, 1868. At this time the husband was indebted to persons other than to Horner on the Daft bond, among whom was P. S. Weaver, who had recovered a judgment against him in Allegheny county in 1860.</p> <p>The judgment of Thomas Daft for use of Simpson Homer was revived from time to time, and on August 22, 1872, the property in suit was sold as the property of Josiah Adams on an execution issued on said judgment, and purchased by Simpson Horner who received a sheriff’s deed therefor acknowledged August 29,1872. Mrs. Adams in 1881, instituted proceedings for a divorce from her husband on account of ill treatment, and obtained the verdict of a jury in her favor on February 18, 1882. Simpson Horner, then a party defendant, on September 1,1885, conveyed all his interest in the property to Mrs. Adams.</p> <p>An exemplification of the Allegheny county judgment in favor of P. S. Weaver against Josiah Adams was carried to Yenango county and judgment entered thereon in 1869. This judgment was revived and in 1884, upon an execution issued thereon, a sale of the property was made to W. J. Bleakley, who received the sheriff’s deed acknowledged November 28, 1884, and who brought this ejectment on January 6, 1885.</p> <p>The plaintiff claimed to recover on the grounds (1) that Josiah Adams was in debt to a large amount at the time of the conveyance by Raymond to Mrs. Adams; that the consideration for said conveyance was in fact paid by him, and the title in his wife was fraudulent and void as to the then existing creditors; and (2) that the bond and the judgment thereon from Josiah Adams to Thomas Daft and assigned to Simpson Horner was without consideration, was given and kept alive for the purpose of hindering and delaying creditors, and the sale thereon was therefore void.</p> <p>On the trial, on March 16,1886, before Charles E. Taylor, P. J., the plaintiff, having introduced evidence showing an indebtedness of Josiah Adams in 1865, the date of the Raymoiid conveyance to his wife, to a large amount, called Josiah Adams as a witness, who testified that he had been the husband of Mrs. Adams, but that the marriage was dissolved by a decree in divorce about four years before. The defendant objected to his competency.</p> <p>The court: We will admit him to testify as to any matter not obtained through confidential communication or in consequence of the domestic relation.8</p> <p>The witness then testified that at the time of the Raymond conveyance he was indebted about $5,000. It was then shown that Thomas Daft died in 1864. C. H. Raymond, the grantor of said conveyance, testified that the purchase of the property had been made by Josiah Adams, who had pgid the consideration and directed the deed to be made to his wife. Mr. Adams was then recalled, and having testified that out of his own funds he had paid the purchase money for the property conveyed by Raymond and he was then insolvent, proceeded to impeach the bond given by him to Thomas Daft and the judgment entered thereon for use of Simpson Horner, stating inter alia, that the bond had been sent to him by Mr. Horner, with a power of attorney to satisfy the judgment entered on it; that he had confessed the original judgment or had it done, and the several revivals thereof, for the purpose of hindering, delaying and defrauding his creditors. The defendant again objected to the competency of Mr. Adams as to anything between himself and his wife, and as to any facts transpiring during the marriage; and also on the ground that, Mr. Daft being dead, witness was incompetent to testify to anything in relation to any conversation happening prior to Mr. Daft’s death. The court overruled the objection; exception.3</p> <p>On the part of the defendant, the wife testified in her own behalf that she had a separate estate of- her own; had the title to two lots in Franklin in her own name, and several thousand dollars in addition, the amount she could not state; and that in the purchase of the Raymond property her husband had used her money and estate. The defendant offered the deposition of Simpson Horner, taken under a rule on October 17, 1885, wherein the witness had testified inter alia that the bond of Josiah Adams before referred to had been transferred to him by Thomas Daft, the obligee, in payment of an indebtedness existing at the time of the assignment, and that Josiah Adams always recognized the bond as a valid obligation; that he did not recollect whether he personally had entered judgment on the bond or not; that Mr. Adams had had it revived once at least and the judgment was the first lien on the property; the property was sold upon the judgment and he had given to Mrs. Adams a deed for it and several hundred dollars besides, because she Avas in poor circumstances at the time. The plaintiff objected to the reading of the deposition as incompetent, because the testimony related to matters that were prior to the death of Mr. Daft.</p> <p>The court: We will rule out the deposition except so far as the testimony relates to matters occurring since the death of Mr. Daft; exception.4</p> <p>The defendant then offered to read that part of Mr. Horner’s deposition in reference to the assignment of the judgment to him, for the purpose of contradicting Josiah Adams. The plaintiff objected.</p> <p>The court: We will rule out the offer.5</p> <p>The following axe the points presented with the answers of the court thereto:</p> <p>The plaintiff’s points:</p> <p>1. That there is no evidence in this case on the part of the defendant, to submit to the jury, to show that the property in question was purchased from Raymond with her separate money or estate.</p> <p>Answer: We submit this question to the jury.</p> <p>2. That the jury must find from clear and full proof that the property in question was paid for with her own separate funds derived from some other source than from her husband; otherwise it would be liable to be sold to pay a debt due at the time of said conveyance.</p> <p>Answer: Affirmed, as regards the title claimed under the deed from Raymond.6</p> <p>3. That if the jury find from the evidence that Josiah Adams was largely indebted in March, 1865, and it is not proven by full, clear and rigid proof that the property was paid for by Mrs. Adams out of her separate funds, it was liable to be sold as the property of Josiah Adams to pay a debt due at the time of said conveyance.</p> <p>Answer: Affirmed, with the same addition as the preceding point.'5'</p> <p>4. That if the jury find that the judgment of Daft was given to Adams for his own use by Daft, with knowledge of Horner, with power to satisfy the same, and it was kept alive for the purpose of hindering, delaying and defrauding creditors of Adams, of which P. S. Weaver was one (and this Avas known to Horner), it was void as against said last creditor, and a sale under said Daft judgment would pass no title as against'the P. S. Weaver judgment.</p> <p>AnsAver: Affirmed, as far as regards the title claimed under the sheriff’s sale.8</p> <p>The defendant’s points:</p> <p>1. If the jury find from the evidence that the premises in question were purchased by the husband of Ann E. Adams, and conveyed to her at his request by Raymond ,• and that Josiah Adams was solvent at the time; that he then had means sufficient, in money or property, to pay all his debts then existing, including the purchase of this house and lot, then Ann E. Adams took a good title to the property so conveyed, and the plaintiff cannot recover in this action.</p> <p>Answer: Affirmed, if you further find that such property or effects of Adams were not so concealed or held that creditors could not have collected their claims.9</p> <p>2. If the jury find from the evidence that the consideration paid for the house and lot was furnished by Ann E. Adams from money received by her from Simpson Horner, or any person other than her husband, she acquired a good title to the same whether her husband was indebted at the time or not, and the verdict should be for the defendants.</p> <p>Answer: Affirmed, with this addition, if the jury find the facts assumed in the point, from full, clear and satisfactory evidence.10</p> <p>3. The presumption of law is that the bond or obligation given by Josiah Adams to Thomas Daft was honestly given for good and sufficient consideration; and, to overcome such presumption, the burden of proof is upon the plaintiff to satisfy the jury, by clear and satisfactory evidence, that the judgment was "not honestly given and that Thomas Daft, in taking said obligation, was a co-conspirator with Josiah Adams to assist him in defrauding his creditors, and if the jury are not so satisfied, their verdict should be for the defendants.</p> <p>Answer: Affirmed, with this qualification, that instead of “clear, and satisfactory evidence,” the words should be, “that the burden of proof is upon the plaintiff.” 11</p> <p>4. If the bond given by Adams to Thomas Daft was given for an honest indebtedness at the time, and Thomas Daft so received it, the judgment afterwards entered upon it was a valid judgment; and the plaintiff having caused a sale to be made of the premises in question thereon, the sheriff’s vendee took a good title to the same at such sale, and the plaintiff cannot recover in this action.</p> <p>Answer: Affirmed, unless the defendant, Adams, with the consent and knowledge of the plaintiff, used the same for the purpose of hindering, delaying, or defrauding creditors, of which the plaintiff was one.19</p> <p>5. Fraud is never to be presumed, but must be clearly and satisfactorily proved by the party alleging it; and where the evidence relied upon to establish, the alleged fraud consists largely of the testimony of a confessed conspirator in the alleged fraud, the jury should carefully consider the amount of credit to be given to such witness, who alleges that he caused to be put upon record a falsehood for the purpose of defrauding or delaying his creditors.</p> <p>Answer: Affirmed, with the substitution of the words, “burden of proof,” in place of “clear and satisfactory.” 13</p> <p>6. If the jury believe from the evidence that the plaintiff, Bleakley, pursuant to an arrangement, made use of the judgment in favor of Weaver for the purpose of collecting a debt contracted after the conveyance by Raymond to Mrs. Adams, and that pursuant to such arrangement the plaintiff is to pay somebody five hundred dollars, and nothing if he fails to recover the property, he is not such a creditor as is entitled to question the title of Mrs. Adams, and such a plaintiff as is entitled to recover against her.</p> <p>Answer: Affirmed, if Bleakley was only a creditor in virtue of the Weaver judgment.14</p> <p>7. No one can question the title to the property in suit acquired by Mrs. Adams from Mr. Raymond in 1865 but a creditor of Josiah Adams existing at the time of said conveyance to Mrs. Adams; the plaintiff was not such a creditor, and on the facts testified to by him, he can derive no equity in support of this action under the judgment of Weaver.</p> <p>Answer: Affirmed, with the same addition as the last point.15</p> <p>8. If the judgment-in favor of Horner was honest he had a right after a sale of property on the judgment and purchase thereof by him, to do with such property as he saw proper, and if he gave it or any part of it to Mrs. Adams he had a right to do so, and such gift is no evidence of fraud.</p> <p>Answer: Affirmed, if the judgment was used only for honest purposes, and the sale made to pay an honest existing debt.</p> <p>The jury found a verdict for the plaintiff, and judgment was entered. Thereupon the defendant took this writ and assigned for error, inter alia:</p> <p>2, 3. The admission of Josiah Adams to testify.8 3</p> <p>4, 5. The refusals of the deposition of Simpson Horner.4 5</p> <p>6-8. The answers to the plaintiff’s points, 610 8</p> <p>9-15. The answers to the defendant’s points, 91015</p>

<p>ERROR TO THE COURT OE QUARTER SESSIONS OE GREENE; COUNTY.</p> <p>No. 171 October Term 1887, Sup. Ct.; court below, No. 17 January Term 1887, Q. S.</p> <p>With this cause there was argued and decided Thomas v. The Commonwealth, No. 172 October Term 1887, Sup. Ct.; court below, No. 17 April Term 1887, Q. S., in which the same questions were involved.</p> <p>On January 5,1887, an indictment of Warren Sanders for the unlawful and willful sale of vinous, spirituous, malt and brewed liquors and admixtures thereof to Lem. McMasters and others named, was found a true bill. Process was awarded and on June 21, 1887, the defendant was arrested and brought into court.</p> <p>On the trial, June 25, 1887, before Jambs Inghbam, P. J., the defendant moved to quash the indictment for the reasons (1), that the indictment was found under § 4, act of April 12, 1875, P. L. 40, at January Term, 1887, charging an offence committed on January 3, 1887, and at divers other times before that time, all prior to the date when the act of May 13, 1887, P. L. 108, became a law operating to repeal the act upon which the indictment was founded; and (2), because, the defendant not having been convicted upon the indictment prior to the time when the act of May 13, 1887 became a law, the penalty provided by the act under which the indictment had been framed and found could not be inflicted upon him. The motion to quash was overruled; exception.1</p> <p>Then the defendant, with the plea of not guilty,-filed also a special plea, embodying the grounds and facts contained in the motion to quash. A demurrer to the special plea was sustained and the trial ordered to proceed under the general plea.8</p> <p>At the close of the evidence the defendant asked the court to charge:—</p> <p>1. That the indictment in this case, being founded on the .•act of assembly of April 12, 1875, entitled, “An act to repeal an act to permit the voters of this commonwealth to vote every three years oar the questioai of granting licearses to sell intoxicating liquors, arad to restrain and regulate the sale of the same,” arad having beear found at January sessioaas, 1887, of this court, the said act of April 12, 1875, is not now in force as to this defendant arad he is not now legally hable under the indictment.</p> <p>Answer: Refused.3</p> <p>2. That in this case, under the law as it now exists, your verdict should be not guilty.</p> <p>Answer: Refused.4</p> <p>The jury returned a verdict of guilty, when the defeaidaait filed a motion in arrest of judgment upon the following grounds:</p> <p>1. The defendant being charged under the act of April 12, 1875, P. L. 40, with having, on January 3, 1887, sold vinous, spirituous and brewed liquors and admixtures thereof to certain persons named in the indictment, to be used as a beverage, without first having obtained a license, said indictment having been found by the grand jury against the defendant on January 5,1887, and no trial or conviction thereon having been had until June 25, 1887, the court is now without power or authority to sentence the defendant .under said indictment, for the reason that the punishment provided by said act of 1875 for the offence charged in the indictment has been repealed or set aside as to this defendant and the offence so charged against him, by the provisions of the act of assembly of Pa. of May 13, 1887, entitled, “ An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixtures thereof.”</p> <p>2. That the penalty provided by said act of April 12, 1875, for the offence charged in the indictment, cannot now since the passage of said act of assembly, approved May 13,1887, be legally imposed upon this defendant under the indictment in this case.</p> <p>3. That to now sentence the defendant in pursuance of the conviction had on June 25,1887, upon the indictment in this case, would, under the law as it now exists, be illegal and contrary to the defendant’s constitutional rights and privileges.</p> <p>By the court: And now June 27, 1887, the defendant’s motion in arrest of judgment is overruled and an exception sealed for the defendant, at his instance.5</p> <p>The defendant was then sentenced under § 4, act of April 12, 1875, and thereupon took this writ assigning for error:</p> <p>1. The overruling of the motion to quash.1</p> <p>2. The sustaining of the demurrer to the special plea.8</p> <p>3. 4. The answers to the defendant’s points.3 4</p> <p>5. The overruling of the motion in arrest of judgment.5</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE VENANGO COUNTY.</p> <p>No. 152 October Term 1887, Sup. Ct.; court below, No. 46 January Term 1886, C. P.</p> <p>In the court below this was an action of debt brought on January 14,1886, by Miles W. Sage and Jacob Sheasley against Jacob Goettel, to recover upon a bond dated December 10, 1883, for 11,300.</p> <p>At the trial on June 9, 1886, before Charles E. Taylor, P. J., the bond having been proven and admitted, the defendant introduced evidence showing that it had been given to secure in part the consideration of a conveyance by the plaintiffs to the defendant of the western half of a certain tract of land, which the vendors claimed to hold under a title derived from a tax-sale of the land as the property of one Alfred Pearce; that after the exchange of the deed and bond, it was discovered that, the plaintiffs had no title of any kind to the western half of the tract, which had never been owned by Alfred Pearce, but did hold a tax-title derived through said Pearce to the eastern half of said tract which had been sold for taxes against Pearce; that thereupon the defendant had tendered a reconveyance and refused payment of the bond. In the course of the trial, the following offer was made :</p> <p>Mr. Heydrick, for the defendant:</p> <p>We now offer to prove that in and prior to the years 1868, one Alfred Pearce had title to the eastern half of tract No. 68, containing 100 acres, together with 50 acres of tract No. 67 adjoining No. 68 on the east, and 50 acres of tract No. 47, adjoining No. 67 on the east, being altogether 200 acres, constituting one tract or single body of land acquired at one time; that after his acquisition of this land it was assessed as follows : “ Alfred Pearce, No. 47-68, 200 acres; ” that subsequently the number 47 was dropped, and in the assessments for the years 1872 and 1873, which are the basis of plaintiffs’ alleged tax title, the assessment was “ Alfred Pearce, No. 68, 200 acres; ” and that the western half of tract No. 68 was in the years 1872 and 1873, and always prior and subsequent to those years, owned by other persons than Alfred Pearce ; that it was continuously assessed to the owners thereof and the taxes thereon paid by such owners either in cash or by sale of the land, and that it was never owned by Alfred Pearce.</p> <p>Mr. Criswell, for plaintiffs: We object to it as irrelevant.</p> <p>By the court: We will have to overrule the offer as irrelevant.1</p> <p>The court charged the jury:</p> <p>The plaintiffs bring this action to recover a certain sum, being the amount which the defendant acknowledged to be due to them, secured by a bond which, has been given in evidence. , The bond seems to have been given to secure a balance of purchase money for land. This purchase money is all due and unpaid.</p> <p>[The defence here we think is hardly a good one, and for that reason we instruct you that your verdict, if you believe the evidence, should be for the plaintiffs for the balance which you find due upon the bond, with interest as provided in the bond.] 8</p> <p>The jury returned a verdict for the plaintiffs in the sum of $1,578, and judgment was entered thereon. The defendant then took this writ, assigning for error:</p> <p>1. The rejection of the defendant’s offer.1</p> <p>2. The part of the charge embraced in [ ] 8</p>

<p>EBBOB TO THE COUBT OE COMMON PLEAS OE LAWBENCE COUNTY.</p> <p>Nos. 246 and 248 October'Term 1886, Snp. Ct.; court below, Nos. 228 and 229 April Term 1883, C. P.</p> <p>On or about February 1, 1881, Tbe Wampum Iron Company, Limited, was organized under tbe provisions of the act of June 2,1874, P. L. 271. On March 23, 1883, Peter Tillia obtained upon writs of summons to the numbers and terms above stated two judgments against said company, one of which to No. 228 was for $3,554.20, the amount of the other not appearing upon the paper-books. Writs of fi. fa. were sued out upon the judgments, which writs on April 1, 1883, were returned, nulla bona. On July 11, 1885, the plaintiff filed a petition averring that he was the holder of said judgments which remained unsatisfied after executions issued; that the defendant company was composed of George Lauder, F. H. Oliphant, and S. D. Oliphant; that he was informed and believed that the amount of the capital stock subscribed for by the members and set forth in the statement recorded in the proper office, had not been paid in; that said company had become insolvent and had ceased to do business; praying for a rule to show cause why the books of the defendant company should not be produced in open .court, and why executions should not issue against the individual members.</p> <p>Rules granted upon this petition were served upon Messrs. D. B. and E. T. Kurtz attorneys, who had appeared for the company when the suits were originally instituted, but who declined to appear or answer the rules, having no authority so to do either by the association or by any member thereof. Subsequently, on February 23, 1886, the court entered an order in each case reciting the said service of the rules, made them absolute and ordered the production of the books of the company before Mr. W. D. Wallace, appointed commissioner “to take testimony and report the facts to the court in reference to how much, if anything, was due from any member of said association of the capital stock subscribed by him, and whether or not the capital stock subscribed has been paid in cash or otherwise.”</p> <p>The report of the commissioner, filed May 26,1886, was as follows: — ■</p> <p>After first being duly sworn according to law, your commissioner issued a subpoena commanding George Lauder, F. H. Oliphant and S. D. Oliphant to appear on the 5th day of May, which said subpeena also commanded said parties to produce their books, etc., before said commissioner. Said subpoena was returned by Wm. G. Warnock, sheriff of Lawrence county, as follows: George Lauder, F. H. Oliphant, S. D. Oliphant and Wampum Iron Company, Limited, not found in my bailiwick. The office formerly occupied by said company is no longer used or occupied as an office.</p> <p>Upon the fifth day of May there appeared before your commissioner B.. A. Winternitz, Esq., attorney for Peter Tillia, plaintiff, and Peter Tillia in person, whose testimony was taken by your commissioner. As there was no other person present and no other witnesses, your commissioner’s means of ascertaining the facts were very meagre and limited. From the testimony taken before your commissioner, it appears that the Wampum Iron Company, Limited, was composed of the following persons and amount of stock:</p> <p>George Lauder, 100 shares, . . $10,000</p> <p>F. H. Oliphant, 60 shares, . . . 6,000</p> <p>S. D. Oliphant, 40 shares, . . 4,000</p> <p>$20,000</p> <p>That the total amount of said capital stock was $20,000; that $15,000 of said stock was paid in in cash, and that there was then and is now the sum of $5,000 unpaid, and that said $5,000 is still due and owing to said Wampum Iron Company, Limited, by George Lauder of Pittsburgh, Pa., as shown by testimony of Peter Tillia, where George Lauder stated to said Tillia at said Tillia’s house that there was only $15,000 of said capital stock paid in, and that there was due from George Lauder $5,000; and therefore your commissioner reports the above to said court.....</p> <p>On September .14, 1886, the court signed decrees reciting the issuance of said executions, their return nulla bona, and the substance of the foregoing report, and proceeding: “It is therefore ordered and decreed that execution shall issue upon the above judgments against George Lauder to the extent of $5,000, to wit: upon the judgment at No. 228 April Term 1888, execution shall issue against George Lauder to the extent of $4,294.65, and upon the judgment at No. 229 April Term 1883, execution shall issue against George Lauder to the extent of $705.35.”</p> <p>Thereupon George Lauder took this writ, assigning that the court erred:</p> <p>1. In entertaining the petition of Peter Tillia filed July 11, 1885, and entering the orders granting the rules thereon.</p> <p>2. In the order or decree of February 23,1886, making said rules absolute and appointing a commissioner to report, etc.</p> <p>3. In the final judgment or decree of September 14,1886, awarding executions, etc.</p> <p>4. In taking jurisdiction, entering judgments and awarding execution against a party not duly served with process and not represented by attorney.</p>

<p>FROM THE DECREE OF THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, IN EQUITY.</p> <p>No. 56 October Term 1887, Sup. Ct.; court below, No. 102 in Equity 1882.</p> <p>The proceeding below was a bill in equity filed on January 4, 1882, by Daniel L. Dillinger, assignee in bankruptcy of John L. Dillinger, a bankrupt, against B. F. Ruff, for an account of the rents and profits and of the proceeds of sale of a parcel of real estate sold by the defendant before the filing of the bill, and for the specific performance of a contract for the conveyance of certain other real estate. After the appeal was taken from the decree of the court below, the defendant in the bill died, when his death was suggested and The Safe Deposit Company of Pittsburgh, as administrator, substituted.</p> <p>It was alleged in the bill, in substance, that on February 6, 1872, B. F. Ruff entered into a written agreement under seal with said John L. Dillinger to convey to him the undivided one tenth part of certain coal lands and privileges, part of which were in Derry township, and part in Mt. Pleasant township on the Big Sewickley, amounting in the aggregate to about 1000 acres, for $10,000 to be paid as specified, and that Dillinger had paid one half thereof in February and March, 1872; that at the time of the agreement Dillinger was the owner of two tracts in Derry township, one of 186 acres, and the other .of 168 acres, and was also the owner of 175 acres of coal in Mt. Pleasant township, on the Big Sewickley ; but that he was not the owner or part owner of any other lands than those described by any title that could be enforced at law or which were within the intent and meaning of the agreement; that the average cost to the defendant of the lands described per acre, was $83.79, and that the plaintiff’s proportion of these lands according to the amount of purchase money paid would be 59-| acres; praying for an account of the rents, issues and profits and also an account of all moneys received by the defendant upon sales made by him of any part of said lands, and for a decree requiring the defendant to convey to' the plaintiff Ms portion of the lands undisposed of.</p> <p>The answer admitted the execution of the agreement as set ■out; that at the time thereof the defendant was the owner of the two tracts in Derry township, but denied that one of them, that of 186 acres called the Bennett farm, was embraced in or intended to be embraced in the agreement; averring that the only lands and coal privileges so embraced or intended were the Pollins farm of 168 acres in Derry township, 125 (instead of 175) acres of coal in Mt. Pleasant township, and certain other lands described in contents and situation, aggregating with those above mentioned about 1000 acres, the number expressed in the agreement. The averment of the bill that the defendant was not the owner or part owner of any other lands than those set out in the bill was denied,' and the ownership by the defendant of over 1000 acres of land not including the 186 acre tract in Derry township was claimed; and it was denied that the average cost to the defendant of the lands described in the bill, or the share of John L. Dillinger therein, was as stated in the bill; and it was further denied that John L. Dillinger had performed his stipulations and covenants contained in the agreement and was entitled to the relief prayed for.</p> <p>Issue being joined, the cause was referred to Mr. Vin. E. Williams, as examiner and master, who found the facts following:</p> <p>That John L. Dillinger and B. F. Ruff, on February 6,1872, entered into a sealed agreement in writing, containing the following material provisions:—</p> <p>The said Ruff being part owner of certain lands and coal privileges, part in Derry township, Westmoreland county, Pennsylvania, and balance in the valley of the Big Sewicldey, county and state aforesaid, mating about one thousand acres, hereby agrees to sell to the said Dillinger, the one undivided one tenth part of all the above named property for the sum of ten thousand dollars, payable as follows: One dollar in hand, the receipt whereof is hereby acknowledged: five thousand dollars in his notes at ninety days and four months from the fifteenth day of February, 1872, which, when paid, shall be in full for half of purchase money, and balance in two equal annual payments from the first day of March, 1872; to all of which the party of the second part agrees.</p> <p>It is mutually understood and agreed that these payments are made on the basis of one hundred dollars per acre, but if when payment in full for such lands and privileges, including cost of building branch railroad up the Sewickley valley to them, shall be less than above named basis, then the said Dillinger is to have a proportional reduction made on amounts hereby agreed to be paid. The object being to give him his interest at the actual cost of said privileges and improvement.</p> <p>That, at the date of the agreement, Ruff was the owner of the tract of 186 acres, known as the Bennett farm, purchased by articles dated September 17, 1871, for $120 per acre, payable one third on March 1, 1872, and the residue in two equal annual payments with interest. Ruff went into possession of this farm on April 1, 1872, and on April 13, 1876, conveyed it to John Chalfant for $56,050.50.</p> <p>That, at the date of the agreement Ruff owned also a tract of 168 acres in Derry township, purchased from David A. Pollins, who conveyed the same to him on March 20, 1872, for $21,000. On November 12, 1875, Ruff conveyed one half of this tract to D. R. Davidson for $10,500.</p> <p>That Ruff also owned at the date of the agreement the coal under a tract in Mt. Pleasant township on Big Sewickley, conveyed to him by Peter Steinman on April 1, 1872, for $1,000, and had since disposed of one half of this tract to William Thaw for $9,375 and still held the residue.</p> <p>That Ruff received the rents and profits of the Bennett tract from April 1,1872, to April 1, 1876; of the Pollins tract from April 1, 1872, to April 1,1875, and one half of the rents and profits of the last-named tract from April 1, 1875, to the filing of the bill.</p> <p>That in addition to the above-mentioned tracts, Ruff also held at the date of the agreement five contracts for the purchase of entire and part interests in five other parcels of land, containing 60, 150, 175, 160, 190 acres respectively, the consideration in each contract being $1; which tracts, with the Bennett, Pollins and Steinman tracts, made an acreage aggregating over 1214 acres.</p> <p>That, as Ruff (found from the testimony) made no exceptions or reservation of any lands owned by him in Derry township at the time of the execution of the agreement, and made no express reservation in the agreement, the Bennett tract was included within its provisions.</p> <p>That on March 5, 1872, John L. Dillinger had paid to Ruff one half of the purchase money due on the contract, but that the balance of $5,000 was never paid.</p> <p>That no money was expended by the defendant to build a branch railroad up the Big Sewickley valley; the railroad there constructed, known as the Youngwood Branch, about which testimony was taken, was constructed and operated by the South-west Penn. Ry. Co., in which the defendant was a stockholder and director, at its proper cost.</p> <p>From the foregoing facts the master reported an account charging the defendant with the amount of purchase money paid on the agreement, less the one tenth of actual cost to the defendant of all the tracts owned by him in whole or in part at the date thereof, including the Bennett tract, and with the one tenth of the proceeds of sale of the Bennett tract and one tenth of the income of the Pollins tract, with interest on the several amounts, finding as the cash sum due the plaintiff at the filing of the bill, $9,057.11. The master then recommended a decree requiring the defendant, within sixty days from date, to convey to the plaintiff the undivided one tenth of the Pollins tract of 168 acres, the undivided one tenth of the coal under the Steinman tract of 125 acres, and the undivided one tenth of the other privileges, lands and coals, for which the defendant held contracts at the date of the said agreement, particularly described in said report, and to pay to the plaintiff within sixty days the said sum of $9,057.11, with interest from January 4, 1882.</p> <p>To the master’s report and decree recommended various , exceptions were filed by the defendant, one of which was as follows:</p> <p>7. The complainant, or his assignee, not having offered in his bill to account and pay over the balance of the purchase money due, the respondent is not in a position to demand an account from the respondent in a court of equity; and, moreover, the contract is within the statute of frauds and perjuries, there being no sufficient memorandum to take it out or the statute, and the bill should be dismissed at the cost of the complainant.</p> <p>The bill of the complainant further claims specific performance of the contract of 6th February, 1872, after the lapse of nearly ten years from the date of the original contract — after the value of property during that period had greatly changed by the construction of railroads and other improvements; and this, also after he had positively refused to comply with his part of the contract, as testified to by the respondent, and not denied by the complainant, and without any offer on the part of the complainant to now pay the balance of the purchase money due on the contract, to wit, $7,502.50, on which interest is to be computed from 4th of January, 1882, and in the face of the fact that the contract set up is within the statute of frauds and perjuries, there being no sufficient identification of the land or of its price without the aid of parol testimony.</p> <p>While these exceptions were pending, on March 6, 1886, the defendant’s attorney moved the special leave of the court to amend the answer filed by adding as follows :</p> <p>That the said complainant should not have or maintain against him, the said respondent, the bill of complaint, because, he says, that long before the filing of said bill, to wit, January 4, 1882, the said complainant, as assignee in bankruptcy of John L. Dillinger, was barred of his said action and complaint by virtue of the provisions of § 5057 of the Revised Statutes of the United States, which limits the right of action to two years from the date of the assignment in bankruptcy; and further pleads the statute of limitations under the state law; and that the said amendment be separately engrossed and added as a distinct amendment to the original answer, so as to be distinguishable therefrom.</p> <p>Section 5057 of the Rev. St. of the U. S. referred to is in these words:</p> <p>No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. And this provision shall not in any case revive a right of action barred at the time when an assignee is appointed.</p> <p>The fact appeared in the case, though neither in the pleadings nor found specially by the master, that John L. Dillinger had been adjudicated a bankrupt in the District Court of the U. S. for the W. D. of Pennsylvania on April 17, 1878, receiving his final discharge as such bankrupt on December 22,1880.</p> <p>To the rule granted to show cause why said amendment should not be made the plaintiff made answer; whereupon the court, James A. Hunter, P. J., under the authority of Wood Lim. 14; Bright. Eq., § 707; Everhart’s App., 106 Pa. 849; discussing Equity Rule 53; § 2, act March 20,1859. P. L. 775; Insurance Co.’s Assignee v. McLaughlin, 105 U. S. 1195; Dick’s Appeal, 106 Pa. 589; Wilhelm’s App., 79 Pa. 120; Thomas v. Hall, 2 Pears. 64, refused the amendment prayed for, on the ground that, raising a new and distinct defence, it had not been applied for in proper time.</p> <p>On September 11,1886, the master overruled the plaintiff’s exceptions filed before him, and filed his report. The exceptions being then renewed, the court, on argument, without filing an opinion, dismissed them, and signed the decree recommended by the master. The defendant thereupon took this appeal, specifying that the court erred: (1) In dismissing the defendant’s exceptions to the master’s report; (2) In refusing to allow the amendment of the defendant’s answer; and (3) In signing the decree recommended by the master.</p>

No. 56 October Term 1886 and No. 225 October Term 1887, Snp. Ct.; court below, No. 272 September Term 1884, C. P. On August 18, 1884, an appeal by the defendants was entered from the judgment of a justice of the peace in an action by Simon Truby against John W. Hill and John H. Townsend, and on the same day the cause was put at issue by the entry of the plea of nil debet, sec. reg.

<p>ERROR TO THE COURT OE COMMON PLEAS OE BUTLER COUNTY.</p> <p>No. 140 October Term 1887, Sup. Ct; court below No. 75 June Term 1886, C. P.</p> <p>This was an action of trespass vi et armis q. c. f. brought by Henry Bickel and Wm. G. Biebl, partners as Bickel & Biebl, against H. J. Klingler, George Walter and sixteen others. The plea was not guilty.</p> <p>On April 7, 1886, the burgess and town council of the borough of Butler (subject to the provisions of the general borough act of 1851), under the authority of the act of June 8,1885, P. L. 55, passed an ordinance with the following provisions:—</p> <p>Section 1. Be it ordained -by the burgess and town coun- ' oil of the borough of Butler, and it is hereby ordained by authority of the same, that from and after the 20th day of April, A. d. 1886, no person or persons shall erect or cause to be erected any frame or wooden dwelling house, shop, warehouse, store, carriage house, stable, or other frame or wooden tenement within the following limits, viz.: Main street at the intersection of Penn street, southward, to the intersection of Wayne street, and for one hundred and forty (140) feet on either side of said Main street, from Penn to Wayne streets.</p> <p>Section 2. No person or persons shall erect or cause to be erected any wooden or frame dwelling house, shop, warehouse, store, carriage house, stable, or other wooden or frame tenement within the following limits without first appearing before a quorum of the members of the town council at their regular place of meeting and obtaining a permit for the erection of such building or buildings, viz.: McKean street from the intersection of Wayne street, north, to the intersection of Penn street and for two hundred and forty (240) feet on the west side of said McKean street, and for one hundred and eighty (180) feet on the east side of said McKean street, from Wayne to Penn streets :</p> <p>Washington street from the intersection of Wayne street, north, to the intersection of Penn street and for two hundred and forty (240) feet on the east side of said Washington street, and for one hundred and eighty (180) feet on the west side of said Washington street, from Wayne to Penn streets. . . .</p> <p>Section 3. That any person or persons violating the provisions of this ordinance shall be compelled to remove the structure or pay the cost of removal by council, with the addition of twenty per centum, and also pay a penalty of fifty dollars for every day the same shall remain standing within the limits prescribed in this ordinance, which penalty shall be for the use of the borough of Butler and be collectible as debts of like amount are now collected by law. — •</p> <p>On West Jefferson street, within the limits described in the second paragraph of § 2 of the foregoing ordinance, a compact block of wooden buildings had been erected and for a number of years had been occupied as livery stables. The ground upon which the buildings stood belonged to Charles Duffy. The eastern end of the block was occupied by Bickel & Biehl, liverymen, whose stable, it was alleged, was frequented by disorderly persons in the late hours of the night. On Sunday,. May 23, 1886, about 4 o’clock a. m., a fire broke out in the block which entirely destroyed the stables of Sarver, Mitchell, and Flick and Kennedy, and left but the charred remains of the stable of Bickel & Biehl. On the next morning, May _ 24, 1886, the burgess and town council met and passed a resolution that the ordinance of April 7,1886, be enforced to prevent the erection of frame buildings within certain limits embracing the location of the burned stables, and the same morning a copy of said resolution was served upon Charles Duffy, the owner of the ground and also upon each of his tenants, including Bickel & Biehl. On the afternoon of the same day, however, disregarding said resolution and the notice thereof, Bickel & Biehl gathered a number of men and proceeded to erect a wooden building to be used for the same purpose as the one destroyed. The town council then passed a resolution directing the high constable to' remove the erection. To avoid a breach of the peace the high constable and his posse were instructed to wait until the workmen left the building before proceeding to remove it. The officer and his men went to the premises after midnight and commenced to tear the building down, but. they were driven away. On the morning of May 27, 1886, the high constable, with a number of special policemen, duly appointed and sworn, proceeded to the ground, demolished the structure erected, together with the charred remains of the old building, and' piled the lumber upon the lot it had occupied. Thereupon Bickel & Biehl brought this action against the high constable, his posse, and certain members of the town council.</p> <p>At the trial, on May 4, 1887, before A. L. Hazkn, P. J., the foregoing facts appeared, and the court instructed the jury, inter alia, as follows:—</p> <p>Then, gentlemen, let us look and see, after the definitions of the words used, for words are to be taken in their ordinary sense as applied by thinking men in the daily course of business and in the light in which the law places upon them a meaning. Ordinances may regulate, but not restrain trade. They must not contravene common right, unless the power to do so be plainly conferred by legislative grant; and in cases where they have such a right, authority to regulate conferred upon towns of limited powers has been held not necessarily to withhold the power to prohibit. I quote that as authority from a Pennsylvania Supreme Court ease.</p> <p>Again, an ordinance must be reasonable and lawful; not inconsistent with the charter of the corporation, nor with any statute of the state; nor with the general principles of the common law of the land, particularly those having relation to the liberty of the subject or the rights of private property. They must therefore be reasonable; consonant with the general powers and purpose of the corporation, and not inconsistent with the laws of the state. They must not be oppressive. The principle of law that ordinances passed under a general authority to enact all such as will be necessary, must be reasonable or they may be void, is well illustrated by the case of Commissioners v. Gas Co., 12 Pa. 818 : “ They must be impartial, fair and general, as it would be unreasonable and unjust to make, under the same circumstances, an act done by one person penal, and if done by another not penal. Ordinances which have this effect cannot be sustained. Special and unwarranted discrimination or unjust or oppressive interference in particular cases is not to be allowed. They must be general in their nature and impartial in their operation.”</p> <p>Again, a corporation under a general power to make by-laws, cannot make a by-law ordaining a forfeiture of property. To warrant the exercise of such an extraordinary authority by the local and limited jurisdiction, the rule is reasonably adopted that such authority must be expressly conferred by the legislature; and even if the power to declare a forfeiture is conferred, still no person can by ordinance be deprived of his property by forfeiture without notice or without legal adjudication —legal investigation or adjudication. An ordinance in violation of this principle is void, as contrary to the genius of our laws and institutions; and we say to you, gentlemen, that as there has been much stress paid in the argument of this case in regard to what was forfeiture or confiscation — I care not by what name it was called by the counsel — if property was either taken away and disposed of, or rendered useless by action of the parties, it is immaterial what you call it by, if the result is the same. Hence, in order to meet that legal point, we have instructed you in this way, and say to you that we believe this to be the law as interpreted by the Supreme Court of Pennsylvania. Power to fine does not include power to forfeit. Courts hold thereby. That municipal corporations cannot pass by-laws ordaining a forfeiture, is strictly construed in many instances......</p> <p>Then let us revert and see whether in this there was authority. It is claimed here that they were acting in pursuance of law — an ordinance or by-law passed in pursuance of the warrant of law thereto. Under the act of April 8, 1851, the chief burgess and other municipal officers of the corporation shall have power, first, to enforce all police ordinances, rules and regulations of the corporation; second, to exercise jurisdiction in all disputes between the corporation and individuals arising under the same. Very broad and very full authority; and it may be a subject of inquiry to you, gentlemen, .whether under this authority they might not, as there was a dispute between these plaintiffs and the agents, or representatives, if you please, of the town council, who were delegated as defendants, say to you, to go and tear down this building,. — under this authority we say to you it was broad enough to have entitled — nay, was it not the duty when that dispute arose to have at least adjudicated the matter with the plaintiffs, whose property they were there to take down, a day in court ?</p> <p>But we will go further as to the authority. Under article XIV., section 1, of the constitution of the United States, we find this among other things : “ Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”</p> <p>Then again, under the state constitution in article III., section 7: “ The general assembly shall not pass any local or special law authorizing the creation, extension or impairing of liens. Second: Regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” They give that entirely to the municipal officers, that they in their judgment may pass upon all such matters as come before them.</p> <p>Then, gentlemen, we want to construe this act. As we have already stated, this act which we have read in your hearing gives ample power to the authorities to pass an ordinance limiting within the borough of Butler the construction of frame buildings — wooden buildings. Have the council followed the directions ? From the phraseology of section 2 of this ordinance, it is only limited to a part of the borough of Butler. As a matter of law we say to you that when they act under this law of the state authorizing them so to act, that they must make their laws general, operating upon all; and as they have limited it to only a part we say it is defective, and so instruct you. Under section 3, which provides the penal clause, we see no authority there which would warrant' the interpretation that is claimed by the defendants; for we do not find in the act of assembly supporting that ordinance, if supported at all, anything which authorized the tearing down; but they have power wide enough and broad enough to pass an ordinance with a penalty, and authority to pass the ordinance and enforce that penalty, and such a penalty as would protect in every respect the interests of the good people of the borough.</p> <p>That brings us then, gentlemen, to this question: Were plaintiffs at the time that this building was torn down maintaining a nuisance at that place ? If they were, then any person or persons specially aggrieved or injured thereby had a right to abate that nuisance. It is true that a wooden building, though erected contrary to law, is not per se, not of itself, a public nuisance; but it may become such by the manner in which it is used, or allowed to be used. It is not claimed that this building originally was constructed either in violation of law, or had been maintained as a nuisance when originally constructed; and we presume you will have no trouble in determining the fact that at the time the building was torn down it was unoccupied; it was then in process, as plaintiffs say, of repairing; as defendants say, reconstruction. In that condition can it be said to be a nuisance ? It is true that a private person not specially aggrieved cannot abate a public nuisance, and especially where the statute provides a remedy for all offences covered by it, that must be followed. But it is well settled that a private person if specially grieved by a public nuisance may abate such public nuisance. A nuisance, whether public or private, may be abated by the party aggrieved so that it is done peaceably and without riot — without a breach of the peace. The reason why the law allows this private and summary method of doing justice is because injuries which are produced by such nuisances require an immediate remedy, and only in cases where the process of law would be too slow to remedy the evil is it admissible; and hence the limitation to doing so without a breach of the peace. As we have already-intimated it brings the main question for you to pass upon, upon which we think this matter turns; was or was not that a nuisance, public or private, such as to justify the defendants-in abating it ? The principal question which arises in this case is, was or was not this livery barn, thus torn down by the defendants, a nuisance? Was it such a common nuisance, and therefore a menace and peril to the welfare of the citizens of Butler -and to all living in that vicinity, and to all who might pass and repass, who had a perfect right to pass and repass in safety along the public streets and alleys abutting, or to which this property abutted and in that vicinity?</p> <p>If you find it to be a nuisance then I say that the defendants must justify themselves under that fact, that it was a nuisance, and especially acting in good faith to abate such nuisance, and acting in a reasonable way; not prompted to do-it by any desire to do any particular wrong to these plaintiffs, or to their property. They, the defendants, in going there toábate the nuisance must act in good faith; they must discharge, that duty in a reasonable manner......</p> <p>Plaintiffs’ counsel ask the court to charge you upon the-following points:</p> <p>1. The keeping of a livery stable is a recognized and lawful business, and the erection and maintenance of a suitable building for that purpose even in the borough is not per se a public nuisance, nor illegal.</p> <p>A. Affirmed.</p> <p>2. That a wooden building, though erected contrary to law, is not per se a public nuisance, but it may become such by the manner in which it is used or allowed to be used, and so, too, may a stone, brick or iron building.</p> <p>A. Affirmed.</p> <p>3. A wooden building, whether erected or only repaired, but in either case contrary to law, is not per se a public nuisance, although hable to become such by its subsequent use. If, therefore, the jury find that the building torn down by the defendants (if it were) had not yet been used for any purpose whatever, it was not then a public nuisance.</p> <p>A. Affirmed.</p> <p>6. If the jury find that the structure torn down had never been used, then no matter whether it was an erection of a new or the repairing of an old building, it was not a public nuisance. The defendants cannot justify its forcible destruction and the official position of the defendants does not relieve them, or any of them, from personal responsibility.</p> <p>A. Affirmed.</p> <p>The defendants ask the court to charge you upon the following points:</p> <p>1. That the legislature had the power to authorize the town council to pass the ordinance, the enforcement of which is the plaintiffs’ alleged cause of action.</p> <p>A. We decline to affirm this for the reason that we hold that the legislature had not the authority to pass an act limiting the construction of wooden buildings in the bounds located by this ordinance; and that if it would go through the form of so enacting, it would not be a constitutional act; and we hold that the legislature cannot delegate to others what it cannot do itself, in the way of legislation. That the legislature did pass this act which we read in your hearing, and it is ample in every way under which for the council to pass an ordinance we have already instructed you.6</p> <p>2. That under and by virtue of the act of assembly, approved the 3d of June, 1885, the town council, having authority to pass the ordinance, had authority to direct its enforcement by the high constable, by removing any erection attempted to be erected in violation of the same.</p> <p>A. Refused.7</p> <p>3. If the jury are satisfied that the plaintiffs were attempting to erect the building in question in violation of said ordinance and after special notice had been given them by the town council not to erect the same, the high constable and his officers, under the direction of the chief burgess, were justified in using sufficient force to remove the same, and defendants are not liable to plaintiffs in this action and the verdict should be for the defendants.</p> <p>A. Refused.8</p> <p>4. The legislature of this commonwealth, by act of 3d of June, 1885, having authorized the town council to pass such ordinances as may be necessary to regulate and prevent the erection of just such buildings as the plaintiffs in this case attempted, to erect, the question of the kind and character of ordinance necessary was lodged by said act in the reasonable discretion of the town council, and they having exercised a reasonable discretion in the matter by passing the ordinance in question, it became the law of the borough of Butler, and the chief burgess and his officers had the right to enforce it.</p> <p>A. Refused.9</p> <p>The jury returned a verdict for the plaintiffs for $300, and judgment being entered the defendants took this writ assigning for error, inter alia:</p> <p>6. The answer to the defendants’ first point.6</p> <p>7. The answer to the defendants’ second point.17</p> <p>8. The answer to the defendants’ third point.8</p> <p>9. The answer to the defendants’ fourth point.9</p>

<p>ERROR TO the COURT OF COMMON PLEAS OF JEFFERSON COUNTY.</p> <p>No. 120 October Term 1887, Sup. Ct.; court below, No. 62 December Term 1886, C. P.</p> <p>The case below was capias in case for slander, brought on October 1, 1886, by Watson F. Thacher against Lemuel H. Woddrop.</p> <p>The declaration, which was in two counts, charged the defendant with having falsely and maliciously spoken and published of and concerning the plaintiff the words “Thacher embezzled and stole from us (meaning the defendant’s father) over eight thousand dollars.” The plea was not guilty.</p> <p>At the trial on February 26, 1887, before Theophilus S. Wilson, P. J., after the testimony on the part of the plaintiff in chief was closed, the following minute was made upon the stenographer’s notes :■ — ■</p> <p>By agreement of counsel the defendant is permitted to introduce evidence under the plea of not guilty with the same force and effect as if introduced under the plea of justification, upon the condition that the defendant calls and examines Andrew J. Maloney, Esq., Benjamin C. Welsh and Lemuel H. Woddrop, and also introduces the evidence of the detectives and of Mr. Shaffer and Mr. Nelson, which was taken, on the part of the defendant in this case, at Philadelphia.—</p> <p>The facts of the case sufficiently appear in the charge to the jury which was as follows:—</p> <p>[The plaintiff, Watson F. Thacher, to maintain the issue on Ms part offered evidence to show that he was from January, 1869, to May, 1885, a member of the firm of Thacher & Co., wholesale boot and shoe dealers in Philadelphia, and was the active member of the firm, managing, buying and selling goods, with full authority to employ and discharge all employees and was also a traveling salesman for the firm, and in that capacity traveled through the counties of Jefferson, Clarion, Forest, Elk, Clearfield and Cameron, and in parts of the states of New Jersey, Delaware and Maryland, and took orders for the goods sold by his firm. In July, 1885, he started out as a traveling salesman for Bell, Walt & Company, wholesale sellers of boots and shoes, of Philadelphia; and his sales or orders in the territory through which he traveled had fallen off two tlfirds from what they were on his first trip, although he was selling the same line of goods, of equal quality, and upon the same or almost the -same terms as given by Thacher & Co.; that where once he had been welcomed by his friends, many of whom he had known for twenty years, and treated in a hospitable way, he now saw a cold indifference, and to-day the finger of suspicion is pointed at Mm, and Ms credit was undoubtedly affected; that he did not know the reason of the changed action of his customers toward Mm until he was informed by Mr. W. C. Mayne, an attorney of Philadelphia, of certain declarations made to him by Lemuel H. Woddrop, the defendant, derogatory to Mr. Thacher’s reputation and credit,]1 wMch were substantially these :</p> <p>On the 9th of August, 1886, the defendant stated to Mr. Mayne, at Emporium, Cameron county, that Mr. Watson F. Thacher was no longer a member of the firm of Thacher & Co.; that he was the biggest scamp that came to the country, and lie had embezzled and stole from them eight thousand dollars ; that Mr. Shaffer, a brother-in-law of Mr. Thacher, found it all out by seeing Mr. Thacher sell goods in the store at retail, put the money in his own pocket book and make no return of it; and by watching him at the dinner hour, when Mr. Thacher would have a drayman come to the store and haul away goods to the auction houses, of which he would make no returns; and Mr. Shaffer went to the defendant’s brother, C. W. Woddrop, in Hughsville, and told him about it, and that Mr. Thacher was selling, and if he did not come down he would have the store gutted out; that they employed detectives and a sharp lawyer, and their lawyer told them to have Mr. Thacher come to his office; they got Mr. Thacher into the lawyer’s office and they charged him with larceny and embezzlement, and he was so badly frightened when they threatened to prosecute and publish him, that he made an assignment of his interest in the firm to them without their paying a cent. At this interview the defendant said his father was a partner in the firm and the stealing was from his father. The substance of these declarations, in detached portions, was communicated at different times to L. Burge, M. F. Flaherty, W. M. Andrews, J. F. McNutt, I. S. Rosenberger, R. A. Rogers, C. C. Gibson, and H. J. Smith, varying according to the questions of these persons, some of the answers being in response to inquiries and others not.</p> <p>The defendant to maintain the issue on his part introduced evidence substantially to the effect that he was employed by the firm of Thacher & Co., in January, 1881, as assistant bookkeeper and salesman, and so remained until the dissolution of the firm on the 14th day of May, 1885. The firm of Thacher & Co. was composed of Watson F. Thacher and Dr. Robert S. Woddrop, the defendant’s father; the capital stock of the firm was ten thousand dollars, put in by Dr. Woddrop, with a loan to the firm of an equal amount, and fifty-three hundred dollars put in by Mr. Thacher, and they were equal partners. Dr. Woddrop died June 1, 1885, after which the business was continued by his executor and two sons, one of whom is the defendant. The defendant is not a partner but receives a salary from the firm, and is worth from seven to nine hundred dollars, and he has no interest in any other business......</p> <p>Dr. Woddrop was in ill health and ceased to attend to any business after the year 1884. The defendant was informed by Mr. Shaffer of the alleged irregularities in the house, and together they found that goods were sold by Mr. Thacher in the house and no return made of such sales ; that goods were removed from the storehouse of Thacher & Co. to auction houses by a drayman, in cases or cartons, and their sales never reported; the defendant examined the books of the firm and found that neither the sales at retail nor the sales at auction had been entered on the books ; and then he, with his brother, C. W. Woddrop, and his uncle, Benjamin G. Welsh, consulted an attorney, Andrew J. Maloney, and employed detectives ; Mr. Welsh and Mr. Maloney met Mr. Thacher in Mr. Maloney’s law office, and the defendant was fully informed of the details of the interview there.</p> <p>The defendant further explained what occurred at the meeting with Mr. Mayne at Emporium, and distinctly stated he did not use the words “ larceny ” and “ embezzlement,” and said that to Mr. Burge, Mr. Andrews, Mr. Flaherty and Mr. Smith, he did not use -the precise words testified to by them, but used different words, imputing neither larceny nor embezzlement against Mr. Thacher.</p> <p>The methods employed to investigate the alleged irregularities on the part of Mr. Thacher, resulting in bringing him to the law office of Mr. Maloney, were explained. From the history of the interview on the 14th of May, 1885, it appeared that after Mr. Thacher arrived at the office he met Mr. Maloney and Mr. Benjamin G. Welsh; Mr. Maloney informed him of his suspicious acts in connection with the firm of which he was a member, read to him a part of the report furnished by the detective agency, involving him in dishonest acts, supplemented this with evidence of the transactions ; Mr. Thacher ¡admitted the accusations were true ; said at first the amount was only a few hundred dollars and he would return it, that he had money deposited at various places, and a certificate of deposit, aggregating six or seven thousand dollars, and would turn this over immediately in restitution. After a brief negotiation a settlement was effected whereby Mr. Thacher assigned his interest in the firm of Thacher & Co. to the legal representative of Dr. Woddrop, which was subsequently consummated by the execution of the papers, and his interest in the firm bank account was relinquished. After leaving the bank Mr. Thacher returned to the store, and after taking his personal effects, left, but before going, he requested Mr. C. W. Woddrop to walk with him to the ferry, a few blocks away; as they walked along Mr. Thacher said he had admitted doing what he was accused of, but said he was no hardened villain or ordinary thief; he had done these things as he had an expensive place to keep up, and he knew Dr. Woddrop was going to die and he supposed the boys would want to take their money out of the firm, and if so, he could not carry on business; so he had been sending goods to auction and selling goods and had laid away the money to go into business for himself when the Woddrops should go out of the firm; he further said he did not want to wrong them but expected in some way to return the money. The bill of sale, release, and other papers relating to the several transactions were admitted in evidence and may be inspected a,nd read by the jury.</p> <p>In rebuttal, the plaintiff was called who testified that he never sent any goods to auction and made no returns, and did not sell goods in the store belonging to the firm as shown against him; that for upwards of twenty years his customers throughout the state and country had returned goods to him individually for private sales and sale at the auction houses in Philadelphia, in the name of Thacher & Co.; that he collected the proceeds and accounted to the persons entitled because that was the correct way to do the business; the transactions did not become any part of the business of the firm except so far as the senders of the merchandise were indebted to his firm, then the amount was deducted and credited to the debtor on the firm books and the remainder remitted; and where they were not indebted the net proceeds were remitted directly by him; that the drayman took the goods from the store at different hours of the day, and "he (Mr. Thacher) paid him; that it did not belong to the house h> pay that; the transactions were larger in 1884; J. H. Hagerty, of Elk county, sent a large amount of boots and shoes to be disposed of at the auction houses in Philadelphia by Mr. Thacher, which was done; the proceeds were twenty-three hundred dollars, and after deducting the sum of two thousand dollars and interest, loaned by plaintiff’s wife to Mr. Hagerty, the residue was returned. Other transactions of this kind were introduced to negative intent on the part of Mr. Thaeher, the names and details of which were corroborated by the statements of Mr. Hagerty, Joseph Rexer and Edward Tim.</p> <p>Mr. Thaeher further testified, giving his version of the interview and action of the parties at the law office of Mr. Maloney, denying his statements and conduct on that occasion, shown by the evidence of the other persons present, saying that he was threatened with prosecution and publication of the accusations there alleged against him, and was frightened into doing what was required of him; that he believed his partner, Dr. Woddrop, would on request relieve him from the effects of the proceedings. He further gave evidence of his unfit physical condition on the 14th of May, 1885, whereby he was unfit to perform any such business matters as transpired that day, and offered the testimony of his attending physician at the time, giving his condition and want of exercising proper judgment in that matter.....</p> <p>The plaintiff requests the court to charge the jury:</p> <p>1. Embezzlement and larceny are indictable offences and therefore, to charge a party falsely and maliciously with them or either of them is slander.</p> <p>Affirmed.6</p> <p>2. It is a misdemeanor subject to indictment for a member of a copartnership to keep fraudulent accounts, or receive any money or property of such copartnership, and make no account of them to the other members of the firm, since June 4th, 1885.</p> <p>Affirmed.6</p> <p>3. The defendant having attempted to establish a justification, the proof must beaas broad as the charge.</p> <p>Affirmed under the agreement of counsel.'7</p> <p>4. If the plea of justification is unsupported, it is evidence of actual malice and goes in aggravation of damages.</p> <p>There is no plea of justification pleaded in this case by the defendant, and under the offer of plaintiff’s counsel that evidence of justification should not be received to enhance damages, this point is refused.</p> <p>5. The defendant, in order to sustain the plea of justification, must prove the same character and weight of evidence as would convict the plaintiff if criminally indicted for larceny and embezzlement.</p> <p>Affirmed, with the qualification that this is a correct, general statement of the law applicable thereto; but there is no plea of justification filed of record in this action.8</p> <p>6. The slanderous words which affect a man’s business are as injurious as slander of his character, and are clearly within the definition of the law; and therefore, if the jury believe that the defendant uttered and published the words, “ Thacher embezzled and stole from us over eight thousand dollars,” to and among the customers of the plaintiff, the law presumes that the damage will arise and affect him in his commercial standing, as well as subject him to a criminal prosecution and injure him socially.</p> <p>Affirmed.9</p> <p>7. That if you believe that plaintiff suffered any special loss of trade, your verdict should include damages compensatory therewith, in addition to that presumed by the law which would accrue from the words spoken.</p> <p>Affirmed.10</p> <p>8. The position in life and family of the plaintiff should also be taken in consideration on the question of damages, although not laid in the declaration.</p> <p>Affirmed.</p> <p>9. That in the assessment of damages the jury may take in consideration (1) the pain and worriment of mind of plaintiff occasioned by the exposures to the fines and penalties of the criminal laws of tins commonwealth. (2) The injury to his reputation. (3) The loss of trade and property occasioned. (4) The circumstances of indignation and contumely under which the wrong was done and the consequent public disgrace of plaintiff, together with any other circumstance belonging to the wrongful act and tending to the plaintiff’s discomfort.</p> <p>Affirmed.11</p> <p>10. Words spoken of a tradesman imputing to him fraudulent conduct in the transaction of business are actionable in themselves without proof of special damages.</p> <p>Affirmed.18</p> <p>11. In an action of slander the plaintiff may claim more than compensation. He may not only recover damages for injury to his reputation but may also recover punitive damages to punish the defendant for the indulgence of his malice.</p> <p>Affirmed.</p> <p>The defendant’s counsel requests the court to instruct the j</p> <p>1. Words must be construed with reference to their subject matter, and as the defendant’s words as proven, expressly referred to transactions between plaintiff and his partner doing business as Thacher & Co., and such transactions were not at the time criminal or indictable, plaintiff cannot, under the pleadings in this case, recover.</p> <p>Refused.13</p> <p>2. To recover, the plaintiff must prove that the words laid in the narr. were spoken by the defendant of and concerning the plaintiff, and that they charge an actual criminal offence on the part of the plaintiff as a member of the firm of Thacher & Co., and they were so understood by the witnesses who heard them, and failing to prove all these, under the pleadings in this case the plaintiff cannot recover.</p> <p>Affirmed.</p> <p>3. If the plaintiff has failed to prove that the defendant charged him with a criminal and indictable offence, known as such to the law, he cannot under the pleadings in this case recover.</p> <p>Affirmed.</p> <p>In slander under the plea of not guilty evidence of the truth of the words charged in the declaration is not admissible, but the defendant may prove in mitigation of damages such facts as show a ground of suspicion not amounting to actual proof of the plaintiff’s guilt, but not as justification; the plea of justification admits the speaking of the words charged in the declaration as therein alleged and avers that the defendant was justified in speaking them, because they were true; in such case the plaintiff is put upon a defence of his life as to the acts charged. By agreement of counsel the defendant was permitted in this trial to introduce evidence under the plea of not guilty with the same force and effect as if introduced under the plea of justification. The effect of this agreement was understood not to enhance damages if the proof failed to satisfy the jury of the truth of the facts, no plea of justification having been filed by the defendant.....</p> <p>The jury are further instructed that if from the evidence, under the instructions of the court, they find the defendant guilty, then in fixing the amount of the plaintiff’s damages they may take into consideration the mental suffering produced by the utterance of the slanderous words, if they believe from the evidence that such suffering has been endured by the plaintiff, and the present and probable injury, if any, to plaintiff’s character which the uttering of the words were calculated to inflict. The law implies damages from the speaking of actionable words in an action for slander, and also that the defendant intended the injury the slander is calculated to effect; [and in this case if the jury believe from the evidence and under the instructions of the court that the defendant is guilty as charged in the declaration, then they are to determine from, all the facts and circumstances proved what damages ought to be given; and the jury are not confined to the mere pecuniary loss or injury sustained; mental suffering, injury to reputation or character, if proved, are proper elements of damage.] s</p> <p>[Though the jury may believe from the evidence that the defendant was guilty of speaking the slanderous words charged in the declaration, still if the jury find from the evidence that the words were spoken without actual malice on the part of the defendant, though under the circumstances showing a want of caution and a proper respect for the rights of the plaintiff, and that the plaintiff has suffered no special damage from the speaking of the words, then the jury should only give compensatory damages; ] 3 and in such case compensatory damages are such as will pay the plaintiff for his expenses and trouble in carrying on the suit and disproving the slanderous words.</p> <p>[If the jury under the evidence and the instructions of the court find the defendant guilty in this case, in assessing the plaintiff’s damages they are not confined to such damages as will simply compensate the plaintiff for such injuries as the evidenqe shows he has received by reason of the speaking and publishing of the defamatory words charged in the declaration; but they may in addition thereto assess against the defendant by way of punishment to him and an example to others, such damages as the jury in their sound judgment, under all the evidence in the case, believe the defendant ought to pay, not exceeding the amount of damages claimed in tlie declaration, provided the jury believe from the evidence that the defamatory words were spoken maliciously or wantonly by the defendant.] 4</p> <p>The jury are further instructed that if they find the defendant guilty, then in fixing the amount of plaintiff’s damages they may take into consideration in connection with all the other evidence in the case the pecuniary circumstances and social standing of the defendant, and the character and standing of the plaintiff, his position in life, and of his family, so far as those have been shown by the evidence ; and they may also take hito consideration the fact, if proved, that the defendant has reiterated the slander on different occasions to different persons......</p> <p>The jury returned a verdict for the plaintiff for $5,000, and judgment was entered thereon. The defendant then took this writ, assigning for error:</p> <p>1-4. The parts of the charge embraced in [ ] 1 8 3 4</p> <p>5, 6. The answers to the plaintiff’s first and second points.5 6</p> <p>7, 8. The answers to the plaintiff’s third and fifth points.7 8</p> <p>9-12. The answers to the plaintiff’s sixth, seventh, ninth and tenth points.9 10 1113</p> <p>13. The answer to the defendant’s first point.13</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY.</p> <p>No. 104 October Term 1887, Sup. Ct.; court below, No. 115 September Term 1885, C. P.</p> <p>A summons in case for negligence was issued on July 2, 1885, in a suit by Albert Uncapher and Hannah Uncapher, his wife, in right of said wife, against the township of Burrell. The plea was not guilty.</p> <p>At the trial, on March 19, 1887, before James B. Neale, P. J., the following facts appeared: On Saturday evening, September 22, 1883, the owners thereof had left a steam thresher standing at the roadside at or near the foot of a hill down which the public highway came. On the afternoon of the next day, Sunday, Mr. and Mrs. Uncapher were returning from a visit to tbe wife’s father, in a light spring wagon drawn by one horse. The husband was driving, and with him on the front seat was his son, a lad of twelve years, while the wife, with a little girl and a babe, occupied the rear seat. The grade of the hill was rather steep, but the road-bed was in good condition, and at the place of the accident was at least nineteen feet wide. At the right side of the road, coming down the grade, there was a steep declivity extending along down to a bridge below where the steam thresher stood and unguarded by barriers; on the left was the hill-side. From the wheels of the engine to the edge of the road the distance was twelve feet. The horse was being driven at a walk down the hill, when, as the party came to a point near the foot of the hill, the horse suddenly became frightened at the thresher and sprang to the right partly over the declivity. The husband, a blacksmith by trade, familiar with the management of horses, tightened the wagon lock and endeavored to keep the horse upon the road-bed by drawing upon the left line; but the horse, becoming unmanageable, made a second plunge and went over the precipice, upturning the wagon and dragging it to the bottom. The wagon fell upon Mrs. Uncapher, causing severe injuries. The thresher was unobserved by the occupants until the horse frightened. The next year after the accident the supervisors of the township placed a rail barrier along the edge of the highway.</p> <p>In the course of the trial, Joseph Beck sworn: Plaintiffs proposed to show by this witness that he had a conversation with G. W. Wilcox, one of the supervisors of the township before the accident occurred, and that he notified the supervisor of the dangerous character of the road, and told Mm that it should be guarded. Objected to, because there was no limit to any particular part of the road. Objection overruled; exception.1 The witness testified in support of the offer.</p> <p>William Fry, called for defendant, sworn: Q. Had you a conversation with Mr. Uncapher in reference to where the accident happened? Objected to as incompetent. By the court: It appearing that the action in this case is brought for the recovery of damages for injuries sustained by the plaintiff and for her own account and in her own right and that the wife is the real party and the husband a party ex necessitate rei, he is not such a party on the record, that his declarations-made against the interest of the real party may be proven.. The offer is overruled; exception.8</p> <p>Isaac Schall, called for defendant, sworn: Defendant proposed to show by the witness the declaration of Albert Uncapher, a plaintiff on the record, in the evening of the day of the accident, in answer to a question as to how the accident occurred, that the horse had seared at the engine and went off the road. Objected to. Objection sustained; exception.3</p> <p>Albert Uncapher, called as if on cross-examination, for defendant. Plaintiffs objected, (1) because the witness was the husband of the plaintiff in interest, joined as a party for the sake of uniformity only, and not to give force or validity to the cause of action, and (2) because incompetent to be called as a witness against the interests of his wife, the principal party to the record. Objections sustained; exception.4</p> <p>Thomas T. Jackson, sworn: Defendant offered to prove a conversation of the witness with Albert. Uncapher, since the accident, in which said plaintiff told witness that it was caused by the horse getting frightened at the engine and that he, the said Uncapher, pulled the wrong line or the horse would not have gone over the bank, nor the accident occurred. Objected to by the plaintiffs. Objection sustained.5</p> <p>The plaintiffs requested the court to charge:</p> <p>1. If the road at the place of this disaster was so dangerous by reason of its proximity to the precipice, that common prudence required extra precaution in the way of the erection of guards or barriers therealong, in order to insure the safety of the traveling public, it was the duty of the officers of the defendant to have the same erected, and if the jury should find from the evidence that the absence of such guards or barriers therealong was the proximate cause of the disaster and injury to Mrs. Uncapher, their verdict should be for the plaintiff.</p> <p>Answer: Affirmed if the jury find that the plaintiff did not negligently contribute to the accident.8</p> <p>2. If the jury find, from the evidence that a guard or barrier along this very dangerous piece of road was necessary, and that the erection of a proper guard or barrier therealong from the place where the horse took fright on to where the accident occurred and on past where the engine stood, would have enabled the driver to stop the horse or in any manner have prevented the disaster, and that the absence of such guard or barrier was the proximate cause, or one of the proximate causes thereof, then their verdict should be for the plaintiffs.</p> <p>Answer: Affirmed if the jury find that the road at the place of the accident was dangerous and required barriers, and that the absence of such barriers was a proximate cause of the accident and that the plaintiff did not negligently contribute to the accident.9</p> <p>3. If the jury find from the evidence that the negligence of the defendant’s officers in failing to guard this very dangerous piece of road, was the proximate cause of the injury to the plaintiff; the fact that the injury was caused immediately by the negligence of Beck and Iiileman in leaving this engine by the roadside would not exonerate the defendant, and their verdict should be for the plaintiffs.</p> <p>Answer : Affirmed if the jury find that the accident resulted from the negligence of the defendants, and that the result of .such negligence was a proximate cause of’ the accident, and that the plaintiff did not negligently contribute to such accident. As I said before, gentlemen, the fact as to the road being dangerous is entirely left to the jury under the evidence.19</p> <p>4. If the jury should find from the evidence, that the attention of the township authorities was called directly to tins as a very dangerous piece of road, and to the necessity of a guard along the side of the road next the precipice, before the accident occurred, and they neglected to protect the same by such guard; that the same result was likely to have followed from the fright of a horse from any cause; that ordinary prudence required such authorities to guard the same against the contingency of such fright, and that the failure to erect such guards was a proximate cause of the disaster, their verdict should be for the plaintiffs.</p> <p>Answer: Affirmed if the jury find that the plaintiff did not negligently contribute to the accident, and that the road at that place was dangerous, and the place over the road was a precipice or was in itself of such dangerous character as should have commanded the attention and the protection of the supervisors.11</p> <p>The defendant requested the court to charge:</p> <p>1. That if the jury find from the evidence in the case, that the engine or obstruction which is alleged to have been the cause of the fright of the horse driven by the plaintiffs, was. the proximate cause of the accident, and that said engine or obstruction was left on or near the public road on Saturday night about-or after dark, before the accident next day, without the knowledge or consent of the township road supervisors, then there was no negligence on the part of the defendant, and the plaintiffs cannot recover.</p> <p>Answer: This point is affirmed if the jury find there was no negligence on the part of the township, and that the negligence on the part of the township was not the proximate cause of the injury.18</p> <p>2. That if the jury find from the evidence, that the passage of the road down the hill, from or near the point where the plaintiffs’ horse scared, in the absence of any barriers, was openly and obviously dangerous at or near the place where the engine or obstruction was, then it was the plaintiffs’ duty either to go by some other route, or get down from the wagon and walk past the obstruction, rather than recklessly expose themselves and children to a danger which was imminent; and if they find from the evidence no such attempt was made, then they voluntarily undertook to brave the danger and cannot recover. ■</p> <p>Answer: This point is affirmed if the jury find the facts as stated and that the plaintiff, Mrs. Uncapher, could have had sufficient notice of the imminence of the danger and could have had opportunity and means of alighting from the wagon. But any negligence on the part of the husband not avoidable by the wife should not be considered as negligence of the wife.</p> <p>3. That negligence is not to be presumed from the mere occurrence of an accident, and if the jury believe from the evidence, that the horse the plaintiff was driving, was frightened at the engine or obstacle standing at the side of the road in front of them, and by means of such fright the horse became unmanageable and run or went off the road and overturned the wagon and injuries resulted therefrom; if they so find, then the proximate cause of the accident was the engine or obstruction., and unless the township supervisors authorized that obstruction to be left on the road or knew it was left in the place where it stood at the time of the accident, the defendant is not liable and the plaintiffs cannot recover.</p> <p>Answer: This point is affirmed so far as it applies to the engine being a proximate cause; but we decline to affirm as a matter of law that it was the only proximate cause.13</p> <p>4. The plaintiffs having alleged in their declaration that the cause of the accident was the “ horse taking fright at the obstruction,” and one of the plaintiffs, Mrs. Uncapher, having testified that “ the horse took fright at or near the engine in the road and ran over the bank,” the jury ought to find from the evidence, the engine to have been the proximate cause of the injuries received, and their verdict should be for the defendant.</p> <p>Answer: This point is affirmed, as explained in answer to the third point.14</p> <p>6. That under all the evidence in the case the plaintiffs are not entitled to recover, and the verdict should be for the defendant.</p> <p>Answer: That point is refused.15</p> <p>So answering the points presented the court further charged the jury, inter alia:</p> <p>We have thus far instructed you with reference to the first element in the case, that is, that the township must have been negligent before any recovery could be had against it. In the next place if you should find that the township was negligent, was its negligence the proximate cause of the accident which befell those people ? Because, although it may have been negligent, unless that was the proximate cause of the accident, you would not be justified in finding a verdict against it. And with respect to that we give you this definition of proximate cause : “ In determining what is proximate cause the true rule is that the injury must be the natural and probable consequence of the negligence, and such consequence as under the surrounding circumstances of the case might or ought to have been foreseen by the wrong-doer as likely to follow from his act.” What is meant by proximate in another sense, is that it must be the direct and immediate and nearest cause producing the accident. Because, if there is another cause that produced the accident that is more immediate and more direct in producing it, although, there may have been negligence on the part of the township in this case, yet if there is another cause that was the immediate or direct and proximate cause of the accident, then the plaintiff cannot recover. It is hardly disputed that the presence of that engine was a producing cause of the accident, and it will be for you to determine, gentlemen of the jury, if you reach a conclusion that the defendants were guilty of negligence, whether or not the placing of that engine there or its presence there was the only proximate cause or not. [If you find that the defendants were negligent and their negligence concurred with the negligence of -whoever placed that engine there, then there would be, and you would be justified in reaching the conclusion that two causes were jointly proximate, concurrently proximate, and if you should find that to be the case, then you have to consider under the other instructions that we have given you, whether or not the plaintiff is entitled to recover.]6</p> <p>This case possibly involves the relation of husband and wife, namely, in the aspect of contributory negligence, and whilst the action necessitates the joinder of the name of the husband and wife as parties plaintiff, yet -the wife is the real party in interest and the consideration of the jury must he directed to her separate right of recovery for injuries exclusively sustained by her. [At the time of the accident she was a passenger of the wagon under the direct control of the husband, and if his conduct was negligent and such negligence produced the injury or was the direct cause of it, then it being the proximate cause, she cannot recover in this action; hut if his act was not the producing cause of the accident, but was independent of the wife and it was by no fault on her part, whatever, the accident occurred, then the neglect of the husband is not to be imputed to her and you are then to determine the question of the right to recover upon the simple question of negligence, so far as it is brought home to the township, as the proximate and immediate cause of the injury.]7</p> <p>And in that respect, gentlemen, we instruct you that no difference how negligent the township may have been, if you find that it was negligent, no difference to what extent that negligence may have been, yet if there was any negligence on the part of this woman, the plaintiff, that contributed to the accident, or as is defined, if there was on her part a want of reasonable care under the circumstances, contributing to the accident, she cannot recover. And then • you have to consider the question of how she was situated, whether she had it in her power and whether she was able to have avoided this accident or not so far as she was concerned. Upon the first appearance of danger it would have been clearly her duty, if the danger was imminent and she had means of avoiding it, to have done so by getting out of the wagon if she could have done so.</p> <p>Now the question of negligence on her part, so far as avoiding the accident, must be considered by you with respect to her means and her opportunities of avoiding that accident. If she had the means of her own of avoiding the accident and did not act carefully and cautiously, then she contributed to it herself, and if she did so she cannot recover. If you find that •her negligence, independent of her husband, contributed to the accident, then there can be no recovery in this case. If you find again that the presence of this engine was not there by the direction or with the knowledge of the supervisors of the roads of that township, and came there on Saturday night and remained there only during Sunday, that fact cannot and ought not to be imputed to the overseers of the township; because they must have reasonable notice of the presence of the obstruction upon the highway before they can be expected to take action towards its removal.</p> <p>The verdict of the jury was in favor of the plaintiffs for |20 and, judgment being entered, the defendant took this writ, assigning for error :</p> <p>1. The admission of the plaintiffs’ offer.1</p> <p>2-5. The exclusion of the defendant’s offers, 810 5</p> <p>6, 7. The parts of the charge embraced in [ ] 6 [ ] 7</p> <p>8-11. The answers to the plaintiffs’ points. 8 *°11</p> <p>12-15. The answers to defendant’s points. 181013</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE WASHINGTON COUNTY.</p> <p>No. 105 October Term 1887, Sup. Ct.; court below, No. 175 February Term 1887, C. P.</p> <p>The proceeding was a scire facias to revive et quare executionem non, by Wm. Smith & Son, for use of James H. Hopkins, against John M. Stockdale, upon a judgment to No. 228 February Term 1886.</p> <p>On January 12, 1886, to the number and term last referred to, a judgment was entered in favor of Wm. Smith & Son against John M. Stockdale, for $751, with interest from February 28, 1885, under the warrant of attorney contained in the following note:—</p> <p>Washington, Pa., February 27,1885.</p> <p>One day after date I promise to pay Wm. Smith & Son, seven hundred and fifty-one dollars, value received, and I authorize judgment to be entered against me for said sum with costs, with five per cent, attorney’s commissions. Waiving inquisition, exemption and stay of execution.</p> <p>John M. Stockdale.</p> <p>On March 29, 1886, Wm. Smith & Son assigned $374.19 of said judgment to James H. Hopkins, and on November 30, 1886, they assigned the remaining part of the judgment to Wm. E. Clarke. On December 18,1886, Mr. Hopkins caused to issue the scire facias in this proceeding. The writ recited the original entry of the judgment, its parties, date of entry and amount; the assignment to James H. Hopkins of the said $374.19; averred that execution remained to be done, and required the defendant “ to show if anything for himself he has or knows to say why the said plaintiff, the said James H. Hopkins, to the extent of his interest for his debt and damages aforesaid, should not have the above-stated judgment revived to continue the lien, and also why the said defendant should not have execution against him for the debt and damages aforesaid according,” etc.</p> <p>Mr. Hopkins having filed an affidavit of claim under the rules, setting forth that the defendant was indebted to him in the sum of $374.19 as of date March 29, 1886, which indebtedness was “ evidenced by the assignment of a part, to wit, $374.19 of the judgment of Wm. Smith & Son against said John M. Stockdale at No. 228 February Term 1886 in said co.urt,” and that said indebtedness to the affiant remained wholly undischarged, the defendant filed an affidavit of defence which averred:</p> <p>1. [The entry of the original judgment upon the note described.]</p> <p>2. That on March 29, 1886, Wm. Smith & Son assigned $374.19, of said judgment to James H. Hopkins without the knowledge or consent of the affiant, the defendant in the said judgment, and that the balance of said judgment is still due and unpaid.</p> <p>3. [The issuance of the scire facias and the form of the writ as before stated.]</p> <p>4. That the affiant is advised and believes that his original indebtedness to William Smith & Son cannot be divided into parts and assigned without his assent, and that the writ of scire facias issued by the said James H. Hopkins for the collection of three hundred and seventy-four and dollars of the said judgment (the balance thereof remaining unpaid) is irregular and void, and that no judgment of revival can legally be entered thereon.</p> <p>And the affiant further avers that there is no record or judgment remaining in the Court of Common Pleas of Washington county in favor of the said James H. Hopkins for the amount claimed in the said writ of scire facias or in the manner or form as set forth in the said writ.</p> <p>5. Subject to the above grounds of defence, the said John M. Stockdale further avers that the said James H. Hopkins at the commencement of this suit was, and still is, indebted to him in the sum of five hundred and nine dollars and interest from the dates hereinafter named, the nature and character of which indebtedness is as follows:</p> <p>1st. On account of local notice inserted at instance and request of use plaintiff, and for his use and benefit, to delinquent subscribers in the Review and Examiner, a weekly newspaper published at Washington, Pa., and of which defendant was the proprietor, from February, 1881, to November 16, 1881, 20 lines 43' times, at 10 cents per line, eighty-six dollars. Interest from November 16, 1881.</p> <p>2d. Same as above from November 16,1881, to June 7,1882, 35 lines 28 times, at 10 cents per line, ninety-eight dollars. Interest from June 7, 1882.</p> <p>3d. That the said James H. Hopkins is further indebted to the affiant in the sum of three hundred and twenty-five (325) dollars, which indebtedness arises as follows, to wit:</p> <p>On or about the day of January, 1881, the said James H. Hopkins in consideration that the said John M. Stockdale would purchase from the said James H. Hopkins the Review and Examiner, a weekly newspaper published at Washington, Pa., entered into a parol contract to furnish the said John M. Stockdale a steam engine and boiler for the use of said paper, the title thereof to be and belong to the said John M. Stockdale : that the said John M. Stockdale fulfilled his part of the said agreement and purchased said paper, but the said James H. Hopkins failed to comply with his said parol contract, and never delivered or furnished to the said John M. Stockdale the said steam engine and boiler according to his contract; to the damage of the defendant in the sum of three hundred and twenty-five dollars......</p> <p>After the argument of a motion for judgment for want of a sufficient affidavit of defence, the court, J. A. McIlyaike, P. J., filed an opinion which, after reciting the facts, was as follows:</p> <p>It will be conceded, we think, that a chose in action, entire in its nature, cannot be divided and assigned in part, so as to give a right of action to the assignee, without the assent of the debtor. A creditor will not be allowed to divide up his claim upon which he has a single cause of action, against the will of the debtor, and thus compel him to assume burdens’not contemplated in the original contract. “ The courts have established that the aid given by equity to the assignment of choses in action, does not go so far as to sanction the severance or apportionment of an entire cause of action by the creditor; and that a partial assignment of a debt will consequently be invalid, unless it receive the assent of the debtor, who might be charged, against his will, with the task of settling two accounts instead of one, -and be deprived of his power of fulfilling his obligation in the way contemplated when it was originally given: ” McCaffery v. Cassidy, 3 Phila. 210; Fair-grieves v. Lehigh Nav. Co., 2 Idem 182; Mandeville v. Welch, 6 Wheat. 277; Jermyn v. Moffit, 75 Pa. 400.</p> <p>Does an assignment of part of a judgment entered on a note with warrant of attorney for the payment of a single specific sum of money at one time, stand on higher ground than a partial assignment of a chose in action ? This question can best be answered when we look at the reason of the law forbidding partial assignments of choses in action. All the inconveniences and burdens to the debtor, arising from such assignments, would result if the same thing was done in the case of a judgment. And “ with respect to its assignable qualities, a judgment is governed by the rules applicable to choses in action: ” Freem. Judg., § 422. “When we speak of a judgment, in regard to its assignable quality, it is a mere chose in action: ” Ford v. Stuart, 19 Johns. 344.</p> <p>It is. true that, in case of a judgment entered, conditioned for the payment of different sums of money to different persons or at different dates, the partial payments or instalments due to different persons or at different times may be assigned and recovered and revived by scire facias, as was done in the case of Peterson v. Lothrop, 34 Pa. 223; but in such cases the assent of the debtor is presumed from the terms of the obligations on which the original judgments are entered. When the original debt is made payable to different persons or in partial payments at different times, a partial assignment of the judgment corresponding with the division of the indebtedness made in the note itself, casts upon the debtor no burdens other than what he is fairly supposed to have agreed to in the original contract.</p> <p>We are not aware of any case in which this exact question has been passed upon by our Supreme Court; but in Dietrich’s Appeal, 107 Pa. 178, Justice Panson, in referring to Peterson v. Lothrop, supra, says, “ that it does not decide, nor do Ave decide now, that where a judgment has been assigned to sixteen different persons, each owner of a part of the judgment may have his separate scire facias to revive. That might depend on circumstances, especially upon the. consent of the defendant, and the facts in Peterson v. Lothrop did not require such a decision, nor do they in this case.”</p> <p>In Missouri this question Avas before the court in the case of Love v. Fairfield, reported in 58 Amer. D. 148. We quote from that case: “ The main question, from the above statement of the case, involves the right of a party to assign to another a part of a judgment. A judgment, so far as its assignable quality is concerned, is like any other chose in action. If the doctrine be applicable to the assignment of funds, either general or special, secured by simple contract or specialty, .....no reason is perceived why it does not extend to an assignment of a judgment. Every reason for the doctrine has as much application in the one case as in the other.”</p> <p>A question might arise in the case before us, whether the denial of the defendant that he assented to the division of the original indebtedness, is stated in his affidavit with sufficient directness and certainty. By an inspection of the record of the original judgment, we find that, on November 30,1886, nearly three weeks before the scire facias issued, William Smith & Son assigned the balance of the. $751 judgment to W. E. Clarke. The affidavit of the defendant sets forth that the assignment of James H. Hopkins was without his knowledge or consent, and “ that the balance of the said judgment is still due and unpaid.” If he assented to the assignment- of this balance to W. E. Clarke, it is a question whether his assent to the division of the original indebtedness might not be established without his specifically assenting to the Hopkins assignment. But as this question is suggested by the record to No. 228 February Term 1886, and not by the papers filed in this case, we must take the defendant’s denial of assent as uncontradicted, the sound and consistent principle being that the affidavit of defence cannot be contradicted or shown to be false except by the record in the very case itself: Warner v. Smith, 2 W. N. 107. We are therefore of the opinion that the want of assent of the defendant to the division of the original indebtedness, as set forth in his affidavit of defence, is sufficient to prevent judgment from being entered on the plaintiff’s affidavit of claim.</p> <p>Let us now turn our attention to the second ground of defence. A sci. fa. q. e. n., etc., is the equivalent of an action of debt. “ It has with us all the qualities and incidents of an action. The judgment in it is quod recuperet, not, as elsewhere, merely an aAvard of execution: ” Stewart v. Peterson, 68 Pa. 232; Duff v. Wynkoop, 74 Idem 305. This being the case, the question arises, can the defendant set off any claim that he may have against the use plaintiff ? On the authority of Hugg v. Brown, 6 Wh. 468, we think he can. In that case part of a judgment against Hugg & Bell was assigned by the judgment creditors, Brown & Co., to Keckler & Forney, and the balance of the judgment to David W. Hulings. A sci. fa. for the joint use of Keckler & Forney and Hulings was issued on the original judgment. At the trial, the defendants, Hugg & Bell, offered to set off against the claim of Keckler & Forney a draft by Hugg & Bell, and accepted by Keckler & Forney, March 20,1837, two years before the sci. fa. issued, and against the claim of Hulings, the defendants offered to set off a draft of $900 accepted by Hulings. Kennedy, Justice, in regard to these offers, among other things says: “ Now, if it be practicable to adjust and liquidate these mutual claims, in case they be found to exist, by setting one off against the other, it ought to be done, because it will avoid circuity of action and put a more speedy end to litigation, which would necessarily be attended with additional expense and loss of time to the parties, and may possibly be the means of effecting justice between them without loss or sacrifice to either, when it could be effected in no other Avay. It is no objection to a set-off being allowed, that the party against whom it is claimed to be made is not the legal owner of the debt, the payment of which he wishes to enforce by action. It is sufficient that he has the equitable right to demand and receive it......It is, therefore, no objection to the set-off or defalcation being allowed in this case, that the parties seeking to enforce the payment of the judgment by sci. fa. are only the equitable owners of it, and that the defendants therein are the legal owners of the debts or claims which they wish to set off against the judgment......Now, although the jury in trying the issue that may be joined in the cause, cannot split the judgment into parts by finding two distinct verdicts, giving to each of the assignees of the judgment, if they should succeed, either in whole or in part, their respective portions of it, yet they can give a general verdict for the whole amount that they shall find to be due thereon, stating in what proportion it shall be levied for the use of the assignees respectively; or,' if they should find that only one of the claims under the judgment was satisfied by the plea of set-off on the part of the defendants, they could state that they found so much for the plaintiffs, to be levied for the use Keckler & Forney, or for the use of David W. Hidings, accordingly as they should determine it to be, in favor of the former or the latter.”</p> <p>Neither do we think that the principle here announced is in conflict with the well-established rule as laid down by Justice Mercuk in Dowling v. McGregor, 91 Pa. 412, “that in the trial of a sci. fa. on a judgment, the only defence is a denial of the existence of the judgment or proof of its subsequent satisfaction in discharge thereof, and that an attempt to inquire into the merits of the original judgment will not be allowed.”</p> <p>Neither the validity nor the merits of the Smith & Son judgment is called in question by the defence set up by the defendant Stockdale. He sets up a claim against Hopkins, the assignee, which, if correct, discharges the judgment as far as the interest of Hopkins is concerned. The claim he sets up could not-have been used in the original suit by Smith & Son. Hopkins is a new party and now for the first time seeks to recover his debt from Stockdale, and Stockdale having a claim against Hopkins now, and at the time when he commenced his “ action or suit,” is entitled to have it set off against Hopkins’ claim, if he can establish it by satisfactory proof before a jury. Rule discharged. ,</p> <p>A decree having been entered in accordance with the foregoing opinion, the plaintiff took this writ, assigning for error the refusal to enter judgment “in favor of Wm. Smith & Son for use of James H. Hopkins to the extent of the interest of Hopkins in the original judgment as evidenced by his affidavit of claim.”</p>

<p>ERROR TO THE COURT OE QUARTER SESSIONS OE BUTLER COUNTY.</p> <p>No. 232 October Term 1887, Sup. Ct.; court below, No. 32 September Term 1887, Q. S.</p> <p>On September 7, 1887, a bill of indictment, preferred under § 15, act of May 13, 1887, P. L. 113, charging that Charles Stewart “ unlawfully did sell and give away vinous, spirituous, malt and brewed liquors and admixtures thereof, without having first obtained a license,-etc.,” was found a true bill, to which the defendant pleaded not guilty.</p> <p>At the trial before A. L. Hazen, P. J., the facts appeared: At the time of the alleged unlawful sales, the defendant was in the employ as soliciting agent of one George Stahl, the owner and operator of a distillery in the borough of Zelienople, about 20 miles from the place where the orders were received. Stahl had paid his annual tax for a distiller’s license to the county treasurer, and his warehouse where his liquors were kept for sale was in Zelienople near his distillery. The defendant in July, 1887, had taken orders, partly written, partly printed, from two persons, each for one gallon of whiskey. The other material facts appear in a point which the defendant submitted for instructions, quoted infra.</p> <p>At the close of the evidence the court announced that the case would be submitted to the jury without argument of counsel. Defendant’s counsel asked their constitutional right for the defendant to have the jury pass upon the law as well as the facts, and their constitutional right to present their case, and argue it too, before the jury.</p> <p>By the court: The defence have a full right to be represented by counsel, and have a full and ample opportunity in this case, but there is nothing, in the judgment' of the court, to justify wasting time arguing; exception.5</p> <p>The point referred to, with its answer, was as follows:</p> <p>3. It having been proven that the defendant' was in the employ of George Stahl, a legally licensed distiller, in the borough of Zelienople, Butler county, Pa., and that the witnesses for the commonwealth gave the defendant, as agent for Geo.' Stahl, written orders on his principal, George Stahl, for the liquor, and that George Stahl in pursuance of these orders given him by the defendant, filled up the liquor in gallon jugs, sealed them and set them apart to the defendant, who subsequently delivered them to the purchasers at their request, at the place of their residence, that in law the sale was completed when set apart in Zelienople, and the legal title to the liquor then and there passed to the purchasers; and the defendant having carried them to them, at their request, in law was acting as the agent for the purchasers, and the sale being complete in the borough of Zelienople, there can be no conviction in this case, because it was a legal sale, made by a legally authorized distiller in the borough of Zelienople, and not a sale by the defendant, who was acting as agent or in the employ of George Stahl.</p> <p>Answer: Refused; and we say to the jury that we understand the law to be that the sale was complete when the liquor purchased and paid for was delivered by the defendant.1</p> <p>The court charged the jury that, if they believed the witnesses and were satisfied beyond a reasonable doubt that the defendant received the money and delivered the whiskey as alleged, the verdict should be for the commonwealth.8</p> <p>The jury returned a verdict of guilty, and sentence having been passed, the defendant was allowed this writ. The errors assigned were inter alia:</p> <p>1. The answer to the defendant’s point.1</p> <p>2. The charge of the court as stated.8</p> <p>5. The refusal to permit' the defendant to be heard by counsel.3</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE BUTLER COUNTY.</p> <p>No. 200 October Term 1887, Sup. Ct.; court below, No. 88 March Term 1885, C. P.</p> <p>This was an ejectment brought on February 25, 1885, by S. M. Seaton, administrator d. b. n. c. t. a. of Gideon Grubb, deceased, against Wm. G. Smith, to recover a tract of fifty-six acres of land in Clay township.</p> <p>Gideon Grubb died on July 24, 1874, testate, leaving a widow, Mary Grubb, and three children. His will, which was duly admitted to probate and letters thereon issued to said Mary Grubb, executrix therein, on October 19,1874, contained this clause: “ I give to my wife, Mary, all my bedding, household and kitchen furniture, and the management of all my property, both real and personal, for her use to my youngest boy comes of age.” On November 18,1874, the executrix filed an inventory, consisting of hay, grain, horses, cattle, sheep, farming implements, etc.; the appraised value aggregating $1,564.05. No sale was made of the property appraised. It was used up, worn out, and as occasion required replaced by other property of like character.</p> <p>At the death of her said husband, Mrs. Grubb was the owner in fee in her own right of the Clay township tract in dispute in this case. On June 15, 1875, she was married to J. A. Erickson, who lived on her farm, with her and her family, until her death which occurred April 19, 1881. By her will, admitted to probate on April 22,1881, she devised the Clay township farm in fee to her second husband and appointed him her executor. Mr. Erickson, as her executor, on May 16, 1881, filed an inventory and appraisement of her personal estate, being the property on the farm of her first husband, Gideon Grubb, deceased, at her death, amounting to §1,024.38.</p> <p>After the death of Mrs. Erickson, at the instance of the guardian of Gideon Grubb’s children, letters of administration d. b. n. c. t. a. upon the estate of Gideon Grubb, deceased, were issued to S. M'. Seaton, who proceeded to enforce a settlement by Mr. Erickson as executor of Mrs. Erickson, of her account as executor of Gideon Grubb. Such an account was filed on March 6,1882, showing a balance due from the estate of Gideon Grubb to the estate of Mrs. Erickson of §187.39, to which account exceptions were filed. While the determination of these exceptions was pending, judgments having been entered against J. A. Erickson, an execution was issued upon one of them, and on March 6, 1883, the Clay township tract, devised to him by the will of Iris wife, was sold at sheriff’s sale to Wm. G. Smith, who became the purchaser after public notice to bidders of the pending proceedings and the claim of the estate of Gideon Grubb against the estate of Mrs. Erickson. The exceptions to said account were finally determined on July 30,1884, resulting in a final decree that the estate of Mrs. Erickson was indebted to the estate of Gideon Grubb in the sum of §402.26.</p> <p>Soon after the decree ascertaining this balance was made, process was issued thereon by the Orphans’ Court and on December 8, 1884, the Clay township tract was sold at sheriff’s sale on such process to said S. M. Seaton, administrator d. b. n. c. t. a., who then brought this action against Wm. G. Smith, in possession of the land under his former purchase at sheriff’s sale as the property of Mr. Erickson.</p> <p>At the trial on January 4, 1887, the foregoing facts appearing, the court, A. L. Hazen, P. J., after reviewing the evidence and explaining the positions of the parties, charged:</p> <p>Defendant claims that the title to this land in dispute came to J. A. Erickson, and that he was the owner and use plaintiff, in one or more judgments, upon which execution was issued, the land levied upon and sold, and that he became the sheriff’s vendee of the title of J. A. Erickson, and that that title was a full and complete title, and that he has the land free from any liens of debts owing by said Mary.</p> <p>' This brings the question down to the point in this issue: Was that amount decreed in the Orphans’ Court as owing by Mary as executrix of her deceased husband, Gideon Grubb, a debt subsisting at the time of her death? If it was, then it was a lien upon all her estate, real and personal.</p> <p>[Defendant claims further, that there having been sufficient personal property to have paid this debt, that the debt should have been paid out of that, and not having been so paid the land cannot be followed; and argued this with a great deal of earnestness, and seemingly backed it up with what is good authority in Pennsylvania, and if we were to be influenced by our admiration of an earnest plea, we would say to you, gentlemen, and it would afford us a great deal of pleasure to aid an effort of that kind, that that was the law, but we do not believe it is the law of Pennsylvania, and we say to you that it is not. We say to you that the law of Pennsylvania fixes very certainly the property of the decedent, real and personal, for the payment of his debts, and it is couched in better language here than probably I will be able to couch it without getting it to paper, and I will just read this: “ In Pennsylvania, the lands of the decedent, like his goods, are assets for payment of debts, and the right of succession has respect only to so much of the estate as remains after payment of debts.” Then, gentlemen, unless something has been done, or omitted, which would release this land, it is bound for the debt of the decedent. Has there been anything done or omitted that would release it from the lien of this debt? You have the evidence before you to determine that fact]1.....</p> <p>. Probably all that we need to add in this matter will be covered in answering the points.</p> <p>(Plaintiff withdraws his points.)</p> <p>Then we refer to the points of the defendant, which the) court is respectfully asked to answer:</p> <p>1. The laws of this commonwealth under which the debts of decedents become a lien upon their lands at their death, relate only to debts existing at the time of death; and, therefore, if the jury find from the evidence, that at the time of the death of Mary Erickson she was not indebted to the estate of Gideon Grubb, then no lien could, or did, attach to her lands in favor of said estate; and, as the title of the plaintiff depends upon that, the verdict should be for the defendant.</p> <p>Affirmed.</p> <p>2. If the jury find from the evidence that the personal assets of the estate of Mary Erickson, deceased, which came into the hands of J. A. Erickson, her executor, were sufficient to pay her debts, then her land was discharged from the lien of such debts, if any lien ever attached, although such assets may have been wasted by said executor, and the verdict should be for the defendant.</p> <p>Refused.8</p> <p>•3. If the jury find from the evidence that J. A. Erickson was the devisee of Mary Erickson as to the land in dispute, and that the defendant, Wm. G. Smith, became the owner of the title of said Erickson, at a fair, open judicial sale, and was in possession of the land prior to the commencement of the proceedings on the part of the estate of Gideon Grubb, which resulted in the sheriff’s sale to the plaintiff, and that said Wm. G. Smith was not legally notified of, or made a party to said proceedings, then his title was not divested by said sheriff’s sale to plaintiff, and the plaintiff cannot recover in this action.</p> <p>Refused.3</p> <p>The verdict of the jury was in favor of the plaintiff for the land described in the writ, and, judgment being entered, the defendant took this writ, assigning for error:</p> <p>1. The part of the charge embraced in [ ] 1</p> <p>2, 3. The answers to the defendant’s points.8 3</p>

2 OE ALLEGHENY COUNTY. Nos. 60, 61 October term 1887, Sup. Ct.; court below, Nos. 617, 618 January Term 1885. Two causes were tried together in the court below, one by Edward M. Trick, and the other by Edward M. Trich and Sarah W., his wife, in right of the wife, against the South Side Passenger Ry. Co., to recover damages for personal injuries to Mrs. Sarah W. Trich occasioned by the alleged negligence of a car-driver in the employ of the defendant company.

<p>No. 128 January Term 1886, Sup. Ct.; court below, No. 3 June Term 1881, C. P. in equity.</p> <p>On May 2, 1881, Albert Darlington, Jesse Darlington and Jared Darlington, trading as J. & J. Darlington, and Mary F. Darlington, filed a bill in equity against T. Minshall Pratt, to enjoin and restrain the latter from the use of a certain butter print as a trade-mark.</p> <p>From 1810 or 1812, Jesse Darlington, the grandfather of the plaintiffs, owned a farm in Middletown township, on which he conducted a butter dairy, selling the products in the Philadelphia market. The butter was in pound and half pound masses, stamped with a device, the striking feature of which was a cornucopia in the centre, the lower end of which was curved to the left. Jared Darlington, Sen., the father of the plaintiffs, lived with his father, Jesse, and in the latter years of the latter’s life was in partnership with him, jointly using the cornucopia print. After his father’s death, Jared Darling-ton became the owner of the homestead, adding thereto two other farms in his lifetime, and continued to make butter, sold in the markets of Philadelphia and New York, impressed with the same print, with “ J. Darlington ” added at the bottom, and still known as the “ Darlington,” the “ Cornucopia,” or the “Horn of Plenty” butter. Jared Darlington, at his death, in 1862, left four sons, Edward, Albert, Jesse and Jared. Edward Darlington, who had married, then occupied one of the farms adjoining the homestead. In March, 1863, Jesse and Jared took the homestead, Albert removing to another farm of the father’s estate adjoining the homestead. All continued making and vending butter, using, under agreement with each other, the cornucopia print, Jesse and Jared having at the bottom “ J. & J. Darlington; ” Albert, the old “ J. Darling-ton ; ” Edward, “ E. Darlington.” Edward died in 1876, and his widow, Mary F. Darlington, continued' the business, using the print with “ E. Darlington.” The production of J. & J. Darlington increased to about 1100 pounds per week; of Albert Darlington, to about 575 pounds; of Mary F. Darlington, to about 430 pounds; and it is ’ now sold to customers in Philadelphia, New York, Boston, Newport, Baltimore, Washington, Pittsburgh and other places.</p> <p>T. Minsliall Pratt, since 1873 occupying a farm in the same township and adjoining the farms of the Messrs. Darlington, has also been manufacturing butter, using, until of late, the print of “ Cumberland Dairy 333,” which was the print of his father before him. In 1879 the Messrs. Darlington discovered that Mr. Pratt was using for his pound and half pormd butter, which he was selling in the market, a cornucopia print very similar to their own. They then consulted counsel, and notified Mr. Pratt to refrain from the further use of such print, which they claimed as their trade-mark. The use complained of continued until this bill was filed.</p> <p>The following are cuts of the prints exhibited at the time of this contention:</p> <p> </p> <p>The cause being put at issue by answer and replication, Mr. V. Gr. Robinson was appointed master and examiner, who found the facts sufficiently appearing in the opinion, and, considering Dixon Crucible Co. v. Guggenheim, 7 Phila. 408; Brown T.-M., §§ 34 to 449; Morse v. Conwell, 2 W. N. 12; Glendon Iron Co. v. Uhler, 75 Pa. 471; 2 Bl. Com. 305; Ferguson v. Davol Mills, 7 Phila. 253; White v. Sehlect, 9 W. N. 77; Sheppard v. Stuart, 7 W. N. 498; Fulton v. Sellers, 4 Brews. 42; Brinkerhoff v. Brown, 6 Johns. Ch. 151; Fellows v. Fellows, 4 Cow. 682 (15 Amer. D. 428); Dugan v. Nattier, 3 Blackford 245 (25 Amer. D. 105) ; Waller v. Todd, 3 Dana 503 (28 Amer. D. 94); Deringer v. Plate, 29 Cal. 292; Witthaus v. Wallace, 2 W. N. 610; Wainsutta Mills v. Allen, 6 W. N. 189; Gillott v. Esterbrook, 47 Barb. 455, found as matter of law that the plaintiffs were entitled to the relief prayed for, and recommended a decree enjoining the defendant from using the cornucopia print set out in the bill, and that he be required to account to the plaintiffs for all the profits on all the butter theretofore sold by him containing the said impression.</p> <p>Exceptions being filed to the master’s report, on argument thereof, the court, Thomas J. Clayton, P. J., filed the following opinion and decree:</p> <p>The plaintiffs are manufacturers of butter, having for their trade-mark a cornucopia, accompanied with the name of the individual maker. They do business separately, each using the same print, but they distinguish each other’s butter by the individual name of the maker engraved upon the print on the margin below the cornucopia.</p> <p>The master finds the facts as follows: “ The plaintiffs succeeded their father, and he his father in the same business. It was carried on at the same place; in the same way, and to the same customers; the one succeeding the other and the same trade-mark being continuously used.”</p> <p>The trade-mark claimed is an engraved cornucopia with the word “ Darlington ” upon the print used to impress each lump of butter offered by them for sale.</p> <p>The master also finds that by agreement among the plaintiffs this trade-mark was to be used by them individually, with the modification of the initial letters. He finds that it has been used by them and their ancestors for over seventy years, and that during- all that time it has been used by no one else save the defendant; that by great care and skill in the manufacture of their butter they had secured a reputation for it that enabled them to get from ten to fifteen cents a pound over that of other butter in the market; that their trade had extended to New York and Washington and many other places remote from the home market; that some of the defendant’s butter had been sold to their customers as their butter and that they had been injured thereby.</p> <p>The master finds substantially that all the charges and allegations of the plaintiffs’ bill are true, and that the counter charges, allegations and excuses, set up in the answer, are not sustained by the testimony. The only fact found by the master favorable to the defendant, is that he did not intend to perpetrate an actual fraud in adopting the plaintiffs’ mark. This is an important point in his favor, and, if he had desisted from the use of the trade-mark when so kindly warned and so earnestly requested to do so, the plaintiffs would have been required to pay the costs of their bill if they had insisted upon further litigation. The master, however, finds that notwithstanding the plaintiffs’ protest, the defendant persisted in his right to use the trade-mark and denied the plaintiffs’ exclusive ownership therein. This open declaration of war left to the plaintiffs no alternative but a vindication of their right in a court of equity with all its harassing delays and burdensome expense. It is certainly to be regretted that so much valuable time and such a large amount of money should be expended upon such a very small matter, but as the master has found the fault to be in the defendant he must bear the burden of the trial.</p> <p>While there are some conflicting authorities as to what constitutes a valid trade-mark, it may be safely assumed -that no branch of the law is better settled, or more generally understood. The law of trade-marks is substantially the same throughout the civilized world. In some countries it is regulated by statute, in others by the unwritten rules of the common law.</p> <p>While we have no statute in Pennsylvania defining a trademark or providing special remedies for infringements of them, our criminal code has made it a misdemeanor punishable by fine and imprisonment to counterfeit another’s trade-mark with a fraudulent intent.</p> <p>A trade-mark has been very tersely defined by the French law, which has been generally adopted as correct, to be “ any sign serving to distinguish the products of a manufacturer, or other objects of commerce.”</p> <p>The law cannot describe the different kinds of marks that may be used; it can only give the general characteristics of a genuine mark. These characteristics are:</p> <p>1. Invariability; that is to say, it must be fixed, positive and certain. The master finds that this cornucopia has been used without any material variation for over seventy years.</p> <p>2. It must possess individuality; such a difference from other symbols as to indicate origin and ownership. The master finds that this symbol has never been used by any other manufacturer of butter, except the defendant.</p> <p>8. Universality of a right to its use. That is to say, good as a representative of, or substitute for, the owner’s signature all the world over. If there were any reliable evidence that this cornucopia had been used at any other place or in any other country as a trade-mark for butter, it would not command the protection of law.</p> <p>4. Exclusiveness of right to use. Upon this essential the defence partially relies. If the same mark could be used by different persons for the same species of goods, it would lead to inextricable confusion; but persons of the same name may have a common right to the same mark in connection with articles manufactured by each: Walton v. Whann, 8 Leg. G. 82. The master finds that by an agreement among the plaintiffs each had the right to use the cornucopia, their several products to be distinguished by the initial letter of the individual name upon the margin of the print. There is nothing unlawful in such an agreement.</p> <p>5. It must be applicable to merchandise only. No one will doubt but that butter is merchandise. There is no ownership in a trade-mark apart from its use or application to some vendible commodity. ' The symbol does not become a trade-mark until stamped upon or affixed to some salable article. All the conditions of this essential requirement are fulfilled in the present case.</p> <p>6. It must be used in a lawful business.</p> <p>7. It must be used in good faith. The defendant alleges that the evidence does not show good faith on the part of the plaintiffs. It is alleged that the cornucopia has been printed by them upon butter made from cream which was purchased from other farmers. I have carefully examined the testimony upon this point and can discover no evidence of fraud or bad faith in the use of this trade-mark.</p> <p>8. The eighth and last essential element of a trade-mark is its unlimited duration. In this it differs from a patent, a copyright, a mere label, the sign of a hotel and the like. As a man’s signature lasts till his death so the trade-mark continues until the business to which it applies ceases. The facts found by the master clearly establish for the trade-mark here claimed all the foregoing eight essential characteristics.</p> <p>While the question involved may not materially affect the market value of the butter of either contestant, it must be looked upon as an abstract question of right, which they have the power to bring into court for final settlement.</p> <p>The exceptions to the master’s report are therefore dismissed. Let a decree be drawn in accordance with the recommendation of the master. The costs to be paid by the defendant.</p> <p>And now, November 2, 1885, this case having come up for hearing and the court having carefully considered the same, after having heard the arguments of counsel, do order, adjudge, and decree that the injunction as prayed for be granted and made perpetual, and that the defendant be perpetually enjoined and restrained from using the cornucopia figure as a print upon his, the defendant’s butter. And that all the costs of said suit be paid by the defendant.</p> <p>The defendant then took this appeal, assigning as errors, the rulings of said opinion and the making of said decree.</p>

<p>ERROR. TO THE COURT OP COMMON PLEAS OP DELAWARE COUNTY.</p> <p>No. 215 January Term 1886, Sup. Ct.; court below, No. 58 March Term 1884, C. P.</p> <p>On February 17, 1882, Samuel Jackson’s fire-works manufactory, erected in a lot at the corner of Second and Welsh streets in Chester city, took fire and an explosion of it followed. The exploded building was standing about two hundred feet from either of said streets and no other buildings were within one hundred yards of it. Cornelius McDade, seriously injured by the explosion, brought suit against the city to recover damages.</p> <p>The declaration contained four counts. The first count averred that one Samuel Jackson, with the knowledge and assent of the city authorities, carried on within the city limits the business of making and selling fire-works and dangerous explosives which it was the duty of the defendant to prohibit; that this duty was neglected and because of such neglect the plaintiff while lawfully engaged in assisting to extinguish a fire caused by said business, was injured, etc. The second count averred the duty of the city to limit and prescribe the quantities of such explosives to be kept, etc., and that the city neglected to perform this duty, whereby, etc. The third count averred the duty of the city to abate the said business as a common nuisance, which duty it had neglected to perforin, etc., whereby, etc. The fourth count averred that though it was the duty of the city to suppress the said business within the city limits, yet that it had wrongfully sanctioned and encouraged its continuance, etc., whereby etc.</p> <p>To this declaration the defendant demurred, assigning as causes, that there was no duty or obligation on the defendant, (1) to prohibit the manufacture, sale and exposure of fireworks, etc., carried on by said Samuel Jackson, etc.; (2) to limit and prescribe the quantity of fire-works, etc., to be kept by him; (3) to abate as a common nuisance the manufacture and sale of fire-works by him; (4) to suppress the business, etc.</p> <p>The city of Chester was incorporated by the act of February 14,1866, P. L. 30, applying the provisions of the act incorporating the city of Harrisburg, of March 19,1860, P. L. 175, by § 8 of which latter act it is provided: “ That, the power of the said corporation shall be vested in the said council, or a quorum thereof, who shall in council assembled have full power and authority to make, ordain, constitute and establish all such by-laws and ordinances, resolutions and regulations as they may deem necessary to preserve the peace and promote the good order, government and welfare of the said city, and the prosperity and happiness of the inhabitants thereof.” By the act of April 2, 1867, P. L. 677, it is provided: “ That the mayor and council of said city in addition to all powers heretofore or hereafter granted them, shall have the following powers, to wit:.....Eleventh. To prohibit and remove any obstruction in the highways, or any nuisance or offensive matter, whether in the highways or on the public or private ground. Twelfth. To prohibit within said city the carrying on of any manufacture, art, trade or business which may be noxious or offensive to the inhabitants thereof; the manufacture, sale or exposure of fire-works or other inflammable or dangerous articles, and to limit and prescribe the quantities that may be kept in one place of gunpowder, fire-works, turpentine and other inflammable articles, and to preserve such other safeguards as may be necessary.” Section 5, act of March 22, 1869, P. L. 484, provides: “ That the said mayor or council shall have power to cause the removal, by such means as to them shall seem best, of any nuisance.”</p> <p>Issue having been joined on the said demurrer, after argument, the court, Thomas J. Clayton, P. J., filed the following opinion and judgment:</p> <p>Tlie plaintiff is met at the threshold of his proceedings with a demurrer, in which the defendant alleges that said duties were discretionary, and that for an error in the exercise of its discretionary powers it is not liable. The plaintiff admits that if said alleged duties were discretionary there is no legal liability, but contends that said powers and duties were imperative, and this is the. whole issue narrowed down to a single point. The argument of the counsel for the plaintiff was very able and exhaustive, but the authorities seem to be against the conclusion to which he has arrived.</p> <p>The duties alleged in the first and second counts could only be performed by the passage of an ordinance or ordinances by the city, duly approved by the mayor. This would require discussion and a vote of the members of council, and could/ undoubtedly be defeated by an adverse vote, or, if passed by ai majority, could be vetoed by the mayor. It is too clear for) argument that the passage of an ordinance is a discretionary act.</p> <p>Again, it must be admitted that the legislature had power, when the act of April 2,1867, P. L. 677, was passed, to declare the manufacture or sale of explosives unlawful in the city of Chester, and to make it the duty of the city authorities to prevent by force the continuance of any such business there. The question may well be asked, why impose a duty indirectly which maybe imperatively commanded? An examination of the city charter clearly shows that the powers conferred were discretionary. Its original charter declares that it shall have power to “make, ordain, constitute and establish all such by-laws, ordinances, resolutions and regulations as they may deem necessary to preserve the peace and promote the good order, government and welfare of the said city, and the prosperity and happiness of the inhabitants thereof.”</p> <p>Subsequent acts of the assembly conferring powers upon the city to pass ordinances touching subjects not embraced in the ■original charter, are to be read as if they were but sections of the organic law, and are therefore subject to the words, “ as they may deem necessary.” In a word, it must be obvious to all that legislation means discretion, and a power to legislate necessarily implies discretion in the legislators. In municipal legislation the first movers are the inhabitants who by petition call the town council’s attention to some subject of proposed legislation. If the petition is favorably received and an ordinance deemed necessary, it is referred to the committee on ordinances, who report an ordinance which passes through its several readings, amendments and discussions, and is finally either passed or lost. Thus the inhabitants being the first movers can only blame themselves for .the neglect of their council and mayor in not legislating upon the subject of complaint. The law upon the subject is well settled. Judge Dillon, in Ms work on Municipal Corporations, states it thus: “ A municipal corporation is not liable to an action for damages, either for the non-exercise of, or for the manner in wMch in good faith it exercises discretionary powers of a public or legislative character.” 2 Dillon Mun. Corp. § 949. The principle of law thus stated is supported by a host of authorities in almost every state in the Union.</p> <p>In Carr v. The Northern .Liberties, 35 Pa. 330, affirmed in Grant v. The City of Erie, 69 Pa. 420, the same principle is announced. The court say: “We do not admit that the grant of authority to the corporation to construct sewers amounts to an imposition of a duty to do it. Where any person has the right to demand the exercise of a public function, and there is an officer or set of officers authorized to exercise that function, there the right and the authority give rise to the duty; but when the right depends upon the grant of authority and the authority is essentially discretionary, no legal duty is imposed.” The reason is obvious. Discretionary power must be confined to the tribunal m wMch it is reposed. There can be no appeal from the exercise of a discretion. Again, the law has already supplied the means of ample redress in all cases of public or private nuisances. The citizen can sue in the common law courts for any actual injury, and recover damages from the person maintaming the nuisance. If he fears future injury, he can enjoin the continuance of the nuisance by appeal to a court of equity. If the nMsance be a public one, any citizen can cause the perpetrator to be indicted and have the nuisance abated by the power of the state, if necessary. Upon calling the attention of the city authorities to the nMsance complained of in this case, they would, in all probability, have applied to the court by bill in equity to enjoin the continuance of it. Why should the whole commonalty be punished for a neglect of duty which the plaintiff was bound to observe as much as any other citizen?</p> <p>The other two counts allege the neglect of a clearly discretionary duty for which a private citizen cannot maintain an action against the city. The allegation in these two counts is, that the city neglected to abate a common nuisance. The fact of the existence of the nuisance must first be ascertained in some way; after which some officer must be duly authorized to act, either by a general ordinance or by a special resolution. Let us suppose that council had actually acted upon this identical case, and, after due deliberation and discussion, they had found the business was not a nuisance and had decided not to interfere. The fact that such a conclusion might possibly be reached, proves the power of the city in such a case to be discretionary, and, therefore, their mistake not the subject of an action at law. As well might the court be sued for a mistake in its discretion as a municipal corporation for errors of judgment in its officers. The law is stated as follows: “ A failure of the corporation to exercise its charter power to abate nuisances, does not give a person who is injured by the failure a private action against the corporation2 Dillon Mun. Corp., § 951. Judgment for the defendant on demurrer.</p> <p>Thereupon the plaintiff took this writ, assigning the said judgment as error.</p>

<p>FROM THE DECREE OF THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY, IN EQUITY.</p> <p>No. 32 July Term 1886, Sup. Ct.; court below, No. 5 April Term 1883, C. P., in equity.</p> <p>This was a proceeding by a bill in equity filed on March 20, 1883, by F. W. Mason and Sarab E. Mason, his wife, in right of said wife, against Jolm Ferguson and Frances E. Ferguson, his wife.</p> <p>The bill averred that on July 1, 1869, Joseph T. Fellows became seized in fee of a parcel of land in the Fifth ward of the city of Scranton, containing eight acres more or less; that he caused said land to be laid out and plotted into building lots and into streets and alleys, and that among the streets laid out was one fifty feet wide, designated as Rock street: I'hat on November 30,1871, he conveyed lot marked No. 2 on said plan by general warranty deed to Mrs. Sarah E. Mason, the plaintiff, in said deed describing said lot as “ beginning at a corner on the west side of Main street at the intersection of Rock street, thence along said Rock street north,” etc.; that on the same day he conveyed lot No. 4 fronting on Main street to Mrs. Mary H. Mott, and lots Nos. 4 and 5 fronting on Sixth avenue to Mrs. Kate Gibbs, and, on November 30, 1872, lot No. 3, fronting on Main street, to Mrs. Jane Wells: That on the said plan there was plotted and laid out for public use an alley twenty-five feet wide, running in the rear of said lots across Rock street and parallel with Main street: That about March 15, 1878, said J. T. Fellows conveyed lot No. 1 on said plan to Frances E. Fellows, then his wife, now Frances E. Ferguson, wife of John E. Ferguson, without mentioning or bounding the samé on Rock street, or designating courses and distances j that said Frances E. Ferguson, defendant, claims to own all the land embraced in Rock street from Main street to said alley, and is about to appropriate it to her own use in the erection of a dwelling thereon which would close up Rock street: That plaintiff, Sarah E. Mason, has built a dwelling on her said lot No. 2 at great cost, with the view of the use of Rock street therewith, and that the closing of said street by the building of a dwelling thereon by the defendant, would be' 'a great damage and an irreparable injury to the plaintiff. The-prayer was for a preliminary and perpetual injunction, and for' general relief.</p> <p>The answer averred that said J. T. Fellows was not seized in fee of the said parcel of eight acres, but the title thereto' was in John Heermans, succeeded by W. W. Jessup, in trust for said J. T. Fellows; that the defendants had no knowledge but were informed and believed that said J. T. Fellows did not lay out and plot in building lots the said parcel, nor did he lay out and plot a street to be known as Rock street, and that such a street was never appropriated, opened, accepted or used as a street by any one; that defendant, Frances E. Fergurson, owns the land in dispute called Rock street, and had purchased it of J. T. Fellows for a valuable consideration without notice or knowledge of any kind that there was any dedication of it for the’ purpose of a street or that any such claim had been, made by the plaintiffs or any other person; that said Sarah E.. Mason had not built the dwelling as claimed by her, but it was built by said J. T. Fellows and paid for by him; that a court of equity had no jurisdiction of the matter set forth in the bill, and prayed to be dismissed.</p> <p>Issue being joined, on November 7, 1883, Mr. Creo. S. Morn was appointed master and examiner, in the hearing before whom the following material facts appeared:</p> <p>In October or November, 1871, Joseph Turvey Fellows, being the owner of about eight acres of land in a populous part of the city of Scranton, laid the same out into some twenty-six or twenty-seven city lots according to a map or plan which he caused to be made of them. The land thus divided up was bounded easterly in one part by Main street, westerly by Hyde Park avenue, northerly by the Hampton road, otherwise called Sixth avenue, and Southerly by Fellows avenue. Upon this plot a street designated as Rock street was laid out fifty feet wide extending from Main street to Hyde Park avenue, with an alley intersecting this, running through from the Hampton road to Fellows avenue, and another alley running from the first alley northwesterly to Hyde Park avenue.</p> <p>This plot was somewhat as follows:</p> <p>HAMPTON ROAD, OR SIXTH AVENUE.</p> <p> </p> <p>On November 30, 1871, Mr. Fellows, who was then a widower, executed and delivered to his daughter, Mrs. Sarah E. Mason, for the consideration of one dollar, actually paid, a deed in fee for one of the lots upon this plot, bounded and ■described in said deed as follows : “Beginning at the corner on the west side of main street at the intersection of Rock .street, thence along said Rook street north.....to an alley, thence along said alley south.....to a corner of lot number three, thence along line of said lot south.....to said Main street, thence along said street north.....to place of beginning, it being lot No. 2, on map of lots laid out by the said Joseph T. Fellows in said city [Scranton] and part of same as conveyed by Joseph Fellows to said Joseph T. Fellows by deed,” etc.</p> <p>This conveyance was intended as a gift to Mrs. Mason according to a selection made by her from this plot of lots, and corresponding deeds of gift were at the same time executed and delivered to the three other daughters of the grantor, for lots selected by them also upon this plot. The deed of Mrs. Mason was duly recorded December 2, 1871. Subsequently Mrs. Mason went into possession of her lot, and some time in 1872 and 8, a house was built for her thereon in part by her father, Mr. Fellows, but mainly by her husband, F. W. Mason.</p> <p>Rock street was never opened. As projected, it extended between Mrs. Mason’s lot on the one side and Mr. Fellows’ homestead on the other. The fence line between the two properties ran along the middle of the street, Mrs. Mason taking into her inclosure some 82 feet of the street in front and 18 to 20 feet in the rear. Her rear fence also extended across and fenced in part of the projected 20 feet alley, which ran from the Hampton road to Fellows avenue. While thus .fenced in, the land covered by Rock street was used by the parties on either side as a yard and garden. Mrs. Mason had a coal shed upon it to which she obtained access through a gate and way across Mr. Fellows’ land, and then through bars in the division fence, or along Mr. Fellows’ side of the fence. On the other side, within the lines of the street, was a well from which water was drawn for use at Mr. Fellows’ barn. There was also a pig-sty on it, and it. was largely used as a barn-yard. At one time Mr. Fellows cultivated as a garden some portion of the street On Mrs. Mason’s side.</p> <p>This use and occupation of the land covered by the street, on either side, continued up to the time of Mr. Fellows’ death in July, 1878.</p> <p>Some time about 1873, Mr. Fellows had married the defendant who is now Mrs. Frances E. Ferguson, and on March 13, 1878, he conveyed to her for life for the consideration of $2,000, remainder to his son Edward A. Fellows in fee, the following described premises: “Beginning at a post and stones at the westerly angle of the intersection of Main street south .... to line of lot of Elizabeth Mason, thence along the line of said Mason lot.....to an alley, thence along said alley north .....to Sixth avenue, thence along Sixth avenue south .....to the place of beginning.” The land thus described includes that portion of Rock street which adjoins Mrs. Mason’s lot. On November 3,1881, Mrs. Fellows purchased of Edward A. Fellows his estate in remainder.</p> <p>J. T. Fellows died July 17, 1878. Soon afterwards Mrs. Mason being prevented from using the gate and way by which she had had access to her coal shed, moved back her coal shed and fence to the southerly side of Rock street, and took down a portion of the fence in front along Main street and in the rear along the alley, for the purpose of opening Rock street. Mrs. Ferguson, then Mrs. Fellows, resisted this, and Mrs. Mason was compelled to desist. Subsequently the councils of the city of Scranton were petitioned by Mrs. Mason to open Rock street, but without success. In the meantime Mrs. Fellows had opened the alley in the rear of her premises and extended it across Rock street, which she fenced on either side, and across the rear of Mrs. Mason’s inclosure, and having-taken possession of the land covered by Rock street, she and her present husband began to erect a dwelling house directly upon it. The plaintiffs, Mrs. Mason and her husband, thereupon, on March 20, 1883, filed this bill.</p> <p>Finding upon the foregoing facts that the plaintiffs had the right to relief, and, upon the question raised by the answer as to the jurisdiction in equity, to grant it as prayed for, discussing the cases: Wiser’s App., 9 W. N. 508; Maguire’s App., 102 Pa. 120; Pillsworth v. Hopton, 6 Yes. 51; Storm v. Mann, 4 Johns. Ch. 21; Gardner v. Newburgh, 2 Johns. Ch. 165; Whitchurch v. Hide, 2 Atk. 391; Rhea v. Forsyth, 37 Pa. 506; North Penn. Coal Co. v. Snowden, 42 Pa. 490; Wash-burn’s App., 105 Pa. 482; Lenninger v. Railroad Co., 41 Leg. Int. 386; Tillmes v. Marsh, 67 Pa. 507; Grubb’s App., 90 Pa. 234; Haines’s App., 73 Pa. 169; Scheetz’s App., 35 Pa. 88; Stewart’s App., 56 Pa. 413; Bitting’s App., 105 Pa. 517; Hacke’s App., 101 Pa. 245; Haugh’s App. 102 Pa. 42; Mc-Caffrey’s App., 105 Pa. 257; King v. McCully, 38 Pa. 76; Commonwealth v. Railroad Co., 24 Pa. 159, the report of the master proceeded:</p> <p>If the defendants have violated the rights of the plaintiff, Mrs. Mason, she must go into a court of law and establish or vindicate her rights before she can compel them to restore her violated rights to her. If she succeeds it is not certain whether she will receive a verdict for compensatory, or for merely nominal damages; nor is it certain whether the defendants at the end of the suit at law will be solvent. In case the plaintiff should establish her right, recover and collect the damages that a jury may find for her for being deprived of the use of the street up to the time that the suit may be commenced, it would not be an effectual and adequate remedy. Why? Because the dwelling house would be upon the land, a private nuisance obstructing the street, preventing the opening of it,■except at a great cost and requiring a considerable time. In the case of a public nuisance the judgment of the court includes the abatement of the nuisance, but in a private nuisance there is no judgment of • abatement. Rock street not being a public street, it never having been opened and •accepted by the public as such, an obstruction upon it is not a public nuisance. If the plaintiff, Mrs. Mason, has the right to it that she claims in her bill, she has an easement in the street, and a permanent obstruction upon it would be to her a private nuisance, over which a court of equity has jurisdiction, whether the injury is great or small. The only judicial forum for abating a private nuisance is a court of equity. Therefore equity has jurisdiction in this suit so far as to prevent the erection of the dwelling house upon the disputed land, and to enjoin its removal in case it should be erected, provided the plaintiff first establishes her right in a court of law.</p> <p>In case the plaintiff succeeds in establishing the right that she claims in her bill, in a suit at law, unless this bill should be retained she would be compelled to resort to another suit in equity for an injunction to enjoin the opening of the street and the removal of the building therefrom in case the defendant persisted in the wrong. The master is of opinion that justice, and the interest of the parties require that , the court should direct the defendant to cease operations, and should keep the rights of the litigants in statu quo until the plaintiff shall have a reasonable time to settle her disputed rights in a court of law. If she fails to establish her right, the defendants are secured for any damage that they may sustain, by the bond which the court has, or may hereafter, require the plaintiffs to file.</p> <p>The master considers that the bill, the answer and the evidence in this case, make it one of such pressing necessity as to require the retention of the bill until the disputed rights of the parties shall be settled at law. In case the plaintiff succeeds in her suit at law, the retention of the bill will save the necessity of the expense and delay that would be incident to the filing a nerv bill to enjoin the opening of the street and the removal of the building therefrom; inasmuch as the present bill would answer the same purpose that a new bill would, in case the plaintiff should be obliged to resort to a court of equity; and in case the defendant should at once submit to the result of the suit at law and permit the opening of the street, the court in either event will have the control of the costs and can dispose of the same on a just basis.</p> <p>Therefore the master respectfully recommends, that, at present no final decree be made, but that the bill of complaint be held and retained until the plaintiffs shall have reasonable time to have the right that they claim in their bill, settled in a court of law; and that the preliminary injunction heretofore granted by the court be continued in the meantime, so far as to enjoin the defendants from erecting any permanent building or structure on the disputed land; and that the plaintiffs be ordered to commence their suit at law within thirty days from the date of such order and to speed the same with all reasonable diligence, but in case the plaintiffs do not within the time specified commence such suit and speed the same as aforesaid, then the bill to be dismissed at the cost of the plaintiffs.</p> <p>To this report and recommendation of the master, returned November, 1885, various exceptions were filed by each party, and after argument thereof the court, It. W. Abchbald, J., on April 2,1886, filed an opinion and decree which after citing the facts proceeded:</p> <p>These facts are practically undisputed, being found from the deeds or admissions of the parties, and the uncontradicted evidence of the witnesses. A great deal of immaterial and extraneous matter has been brought into the case, which it is our first duty to lop off and clear away, so that it may not óbscure that which alone is properly involved in the suit.</p> <p>For example, the title of J. T. Fellows cannot be drawn into issue. Both parties claim under him, and if there could be any question of his title under the deed to him from Joseph Fellows of July, 1869, there can be none under the contract of 1867, which is expressly recognized and confirmed in the deed to Mrs. Ferguson from W. H. Jessup, trustee. The case must not by reason of this be allowed to assume the semblance of an ejectment, and a supposititious conflict of titles, which does not and cannot under the evidence exist, thus beclouding the real issue, which is concerning the equities, if any, which arise in favor of the plaintiffs out of the undisputed facts.</p> <p>Equally immaterial is the dispute as to who built Mrs. Mason’s house. Indeed throwing out the reported statements of Mr. Fellows that he was building it, which seem to me inadmissible, and the testimony of the defendant, Mrs. Ferguson, as to a statement of Mrs Mason, that her father built the house for her, which I consider Mrs. Ferguson incompetent to testify to, Mr. Fellows, the common grantor, being dead, there is practically no dispute but that Mr Mason paid for the whole house except the foundation. But whether the house was a gift or not does not enter into or affect the merits of the controversy. This is not like a parol gift followed by possession taken and valuable improvements made upon which specific performance will be decreed. The right to have Rock street opened, if such right exists, does not grow out of, nor is it strengthened by the fact, that valuable improvements have been made upon the lot by the complainants, but, as we shall see, if at all, out of other things.</p> <p>After all the evidence, upon these and other still more irrelevant matters which I will not stop to notice, has been put aside, it will be found that the rights involved in this suit arise out of the clearly defined facts, which I have recited above. The learned master without stopping particularly to discuss the relations of the parties growing out of these facts, has passed at once to the question of jurisdiction. I think we can best arrive at the determination of the latter by first considering what are the plaintiffs’ rights in the premises, since if they are clear, it may have an important bearing upon the-question of our equitable jurisdiction.</p> <p>It is a well settled principle of law, that where upon a sale of lots reference is made to a map or plot upon which they are laid down, and which calls for certain streets and alleys, this constitutes a dedication of these ways, to the use of purchasers as public ways, and the map or plan so referred to-becomes a material and essential part of the conveyance, and is to have the same effect as though copied into the deed: McCall v. Davis, 56 Pa. 484; McKee v. Perchment, 69 Pa. 342; Trutt v. Spotts, 87 Pa. 341; Transue v. Sell, 105 Pa. 604; Birmingham v. Anderson, 48 Pa. 260; Parker v. Smith, 17 Mass. 413; Thomas v. Poole, 7 Gray 84. An implied covenant is thus raised in favor of the grantee, and against the grantor and his heirs that the street or way in fact exists, and that it has been dedicated to the public use. In 2 Smith’s L. Cas. 218,* the principle is thus stated:</p> <p>“ In a case where the owner of land in a city lays out a street through it, and sells lots on each side of it, the rights of different parties concerned appear to be as follows; the public have an easement of way or right -of passage ”.....“ but besides this public privilege, the grantees of the lots are purchasers by implied covenant from the grantor of the right to. have that interval of ground left open forever.”</p> <p>[The cases, Thomas v. Poole, 7 Gray 84; Parker v. Smith, 17 Mass. 413; Trutt v. Spotts, 87 Pa. 341; Dailey v. Beck’s Execrs., Brightley 107; Transue v. Sell, 105 Pa. 609; McCall v. Davis, 56 Pa. 434; Davis v. Sabita, 63 Pa. 90; Paul v. Carver, 26 Pa. 223 ; Cox v. Freedley, 33 Pa. 124; Falls v. Reis, 74 Pa. 439 ; Bissell v. Railroad Co., 23 N. Y. 61; Robinson v. Myers, 67 Pa. 9; s. c. 74 Pa. 269; Spackman v. Steidel, 88 Pa. 458, were then discussed at length.]</p> <p>We have it then well established by the combined force of these authorities, that where lots are conveyed according to a map or plan which shows projected streets and alleys, this constitutes as to any purchaser a dedication of such ways by the then owners to a public use, for a failure to open which, covenant lies, or if the ways be once opened an action on the case against any party obstructing them; and further, that where a lot is so conveyed bounded by a street or alley, thus dedicated to public use, title passes to the grantee to the centre line of such way. There is no doubt, therefore, as to the ease in hand, that so far as Mr. Fellows, and his heirs are concerned, all these rights accrued to the complainant, Mrs. Mason, upon the delivery to her of the deed for her lot. Her rights were clear and perfect. Notwithstanding the nominal consideration of one dollar, she could have brought an action of ejectment for the one half of the unopened street: Falls v. Reis, supra; the same as she could have for the lot itself, though a gift, if its possession had been denied her; or upon a refusal to open Rock street as projected, covenant could have been maintained, or upon the obstruction of its use, as a way, an action on the case.</p> <p>How differently with respect to this do the defendants stand ? The conveyance to Mrs. Mason was put upon record and thereby affected subsequent grantees from Mr. Fellows, as effectually, though a gift, as if made upon the fullest consideration: Lancaster v. Dolan, 1 R. 231. So far as it operated as a grant, it, left nothing in the grantor which he could convey to another, and it is clear, by the authorities, that not only did her deed vest in Mrs. Mason, a fee in one half of Rock street, but that it also conveyed to her as parcel of the grant a right to the enjoyment of the street as a public way, with all the appurtenances, as well of access, as of open and unobstructed space, air, light and view. That Mrs. Ferguson, when she purchased had no actual notice, is not material. She had constructive notice by the deed of Mrs. Mason upon record. The map of lots therein referred to was as effectively called to her notice as if it had been copied into the deed: McKee v. Perehment, 69 Pa.. 342; Trutt v. Spotts, 87 Pa. 341; and she was thus affected by all the rights of Mrs. Mason, springing out of the conveyance.</p> <p>Nor can I see that Mrs. Mason has lost any of her rights either by non-user, surrender, or abandonment, or that there was anything in the way in which the land covered by Rock street was used by her or by Mr. Fellows, to estop her from now claiming to have it opened, as against a subsequent purchaser such as Mrs. Ferguson. It must not be lost sight of, that at the time of the latter’s purchase, and down to the time' when Mrs. Mason began to move in regard to opening the street, she (Mrs. M.) had in her actual possession and within her fence inclosure one half of the land covered by the street adjoining, and that she was allowed the use of a way to and. from her coal shed as well as the cellar of her house across the remaining portion. Such possession and use were of themselves notice to a certain extent of her rights: Krider v. Lafferty, 1 Wh. 808. Certainly there could be no extinguishment based upon them. It may be, where an easement arises by implication or estoppel, that acts done by the party claiming the easement, which tend to destroy it, will work an extinguishment. But an easement created by grant can only be extinguished by adverse user for twenty-one years: Hall v. McCaughey, 51 Pa. 43; Lindeman v. Lindsey, 69 Pa. 93; McKee v. Perchment, 69 Pa. 342; Smyles v. Hastings, 22 N. Y. 217; Wiggins v. McCleary, 49 N. Y. 348; Arnold v. Sterms, 24 Pick. 106; Washb. Easements *pp. 557, 543, 551. In Hayford v. Spokes-. field, 100 Mass. 491, there was a three foot alley which had been granted as appurtenant to a certain lot. This lot was subsequently conveyed to the plaintiff and the description bounded it in part by the alley, referring to the plan in the original deed according to which the alley had been laid out. Prior to this conveyance, however, the plaintiffs’ grantor had built a high board fence across the end of the alley where it abutted on the lot. No objection to this was made for some seven years, when plaintiff put a gate in the fence for the purpose of using the alley, and defendants thereupon closed and obstructed the alley against her. It was contended that plaintiff’s right to the use of the alley had been extinguished by abandonment, but the court held otherwise and sustained her action.</p> <p>It seems to me, therefore, that the rights set up by the complainants in their bill are, upon the undisputed facts, clear and indubitable, and that nothing has been done, or omitted by them, to estop them from now asserting these, rights against the defendants.</p> <p>This brings us to the question whether the complainants are entitled to the equitable relief for which they pray. The relief sought by the bill naturally divides itself into two heads: 1. The restraint of the defendants from obstructing Rock street with the proposed permanent obstruction. 2. Their restraint from doing anything to prevent the complete opening of the street. The former is purely injunctive, while the latter is in the nature of the specific performance of the covenant to open, implied from Mrs. Mason’s deed. They differ correspondingly in their nature and require separate consideration.' Let us take them up in their order.</p> <p>1. There is no doubt in my mind that at least to the extent recommended by the master the complainants are entitled to equitable relief. The acts of the defendants in attempting to throw a permanent obstruction across the street in question is such an injury to, and invasion of, the at least prima facie rights of the complainants, that a chancellor would even intervene and stay such acts until the latter had opportunity to establish them at law. It does not seem necessary to refer to the cases upon this point, so many of which have been cited .by the learned master in his able report. They entirely sustain him to the extent to which he goes. The real question with me is whether the court should not go further, and permanently enjoin any obstruction of these rights.</p> <p>There is some apparent conflict of authority as to when equity will, and when it will not, exercise jurisdiction of this character in such classes of cases as this. Thus in North Penn. Coal Co. v. Snowden, 42 Pa. 490, Strong, J., says: “ Has it ever been supposed that one claiming a right of way over the land of another can file a bill in equity complaining that the right which he claims is denied, and that enjoyment thereof is refused to Mm, and praying for an injunction against such denial and refusal of his enjoyment? Has any chancellor ever sustained such a bill, or considered that he had jurisdiction of such a complaint ? ” And yet just such a bill was sustained in Davies v. Sear, L. R. 7 Eq. 427 as well as in Hacke’s Appeal, 101 Pa. 249, in the latter of wMch cases it is said by Mr. Justice Trunkey : “ It has long been settled that nuisances to rights of way are one of the classes of cases in' which the equitable remedy by injunction may be sought.” And the right to •it in certain of such cases is recognized in the elementary writers as a well settled branch of equity jurisdiction: High Inj. § 565 ; Washb. Easements, *575 et seq.; Story Eq. § 927.</p> <p>I think the distinction observable among these cases is this: Equity will not undertake to establish the legal rights of parties which are in dispute. Its jurisdiction cannot be invoked for that purpose. Such rights must be determined at law. Where, however, the complainant has a prima facie right which may suffer irreparably by a threatened act of the defendant, or from other cause, a special equity is thus superinduced, which will justify a chancellor in retaining the bill until a determination of the rights in dispute can be obtained at law. Or, where the complainant’s rights are clear and undoubted, either by the admissions of the defendant or the undisputed facts in the ease, equity will enjoin the infringement of them, without remitting the party to the inadequate remedies which the law may afford. Upon this dividing line the cases upon examination will be found to readily and naturally fall.</p> <p>In Rhea v. Forsyth, 37 Pa. 507, the right to the alley in dispute depended upon (1) an alleged use and occupation for twenty-one years; (2) a joint dedication by the several adjoining owners. Both grounds were not only denied in the answer, but rendered doubtful by the conflicting proofs. Manifestly this was therefore a case, as the court held, which could only be properly determined at law.</p> <p>In King v. McCully, 88 Pa. 76, 77, it is said by Thompson, J.: “ The right should be clear to warrant a decree to be followed by an injunction to compel the keeping open of a way by one man over the premises of another. If doubtful, this of itself would be a sufficient reason to induce a chancellor to pause, until the right be established at law. Here, however, the district court must have come to the conclusion, not that the right was doubtful, but that there was no evidence at all of its existence as claimed by the appellant. We have carefully examined the testimony and entirely concur in that conclusion.”</p> <p>In Tillmes v. Marsh, 67 Pa. 507, the real purpose of the bill was to establish in the plaintiff the legal title to the land over which the alley way rah between plaintiff’s and defendant’s properties. This was ineffectually attempted to be disguised as a proceeding to settle boundaries, but even in that shape was the mere substitute for an ejectment.</p> <p>In BtmnelTs Appeal, 69 Pa. 59, it was by no means clear that there was any road at the point where defendant had put his stone-row. A public road ran somewhere in that direction, but it was doubtful where it had actually been located. Not only was the right thus in doubt, but the obstruction was itself considered by the court of such a temporary character as not to call upon them to protect the right against it.</p> <p>In Washburn’s Appeal, 105 Pa. 480, the complainants sought to restrain the defendants from using a lane which the latter asserted the right to use across premises in the complainant’s possession. To take jurisdiction of such a case, a court of equity would be obliged to determine whether defendants had a legal right to the use of the lane, a question which was dependent upon conflicting evidence and disputed facts. The distinction to be observed in such cases is thus clearly stated by Mr. Justice Clark : “ Where rights which are legal are asserted on one side and denied on the other the remedies are at law. They cannot be settled under equity forms: this is undoubtedly the general rule. In actions respecting real property therefore if there be no equitable ground of relief involved, the rights of the parties must be determined at law; when thus determined, or when they are admitted in the pleadings, or otherwise clearly appear, an equity based upon that right, superinduced by the acts of the parties may be asserted, and a decree for equitable relief made; thus equity is made the means not of establishing the legal right, but of giving adequate protection in the enjoyment of it when thus established.” And again he says : “ The cases cited by the appellee are not in principle inconsistent with the cases here referred to. In none of them did the dispute involve the ascertainment and determination between the contesting parties of their rights at law; the right of the complainant in each of the cases was either admitted or otherwise clearly and incontestably established, and in all of them proper grounds were assigned for equitable relief.”</p> <p>These cases and others to which reference might be made recognize in all its force the distinguishing feature upon which equity will or will not take jurisdiction. As further illustrating. it reference may also well be made to a few of those in which jurisdiction has been actually taken. Thus in Scheetz’s Appeal, 35 Pa. 88, plaintiffs claimed the right by prescription to the uninterrupted flow of the waters of a certain creek for the use of their mills, and the further right for this purpose to enter upon the land of the defendants and clear the bed of the creek. It was held that equity would enjoin the disturbance of this right, the acts of the defendants being not only prejudicial to its enjoyment, subversive of its very existence, and damages at law for the repeated trespasses of the defendants in disturbance of it, being wholly inadequate. In view of these circumstances, the court went so far as to undertake the very determination of the right, as well as of its enforcement by injunction. This case was followed in Bitting’s Appeal, 105 Pa. 517. The defendant there demurred to the bill which necessarily admitted the facts and thus confessed the rights of the complainants growing out of them. Says Mr. Justice Gobdon : “ There being thus no dispute over the facts of the case, or about the rights of the plaintiffs, we have for answer but the single question, whether a court of equity will interfere to prevent a wrong of this kind, or whether the remedy is to be found in a court of law ? We are inclined to think that the answer to this proposition is not at all difficult.”</p> <p>In Davies v. Sear, L. R. 7 Eq. .427, there was an arched way leading from the street in front through the ground floor of the premises in question to a mews in the rear. Defendant having leased these premises claimed the right to obstruct this passage way. But it was held that he was affected with notice of it, as an apparent way of necessity, and would be enjoined from obstructing it.</p> <p>In Hacke’s Appeal, 101 Pa. 249, already referred to, complainants claimed the use of an alley in the rear of defendant’s lot. By a prior agreement between the parties, defendants were allowed to close up the alley during the term of a lease under which complainants then held their premises. Subsequently complainants renewed their lease, and notified defendants to remove their obstructions to the alley. It was held that the right of the defendants to the free use of the alley was clear and not doubtful and that equity would enjoin against obstructing it. Says Mr. Justice Tbtjnkey: “This right of way is founded upon contract, the grant being shown by the respective deeds under which Brown and Hacke hold their lots. The owner has a right to its enjoyment in the mode and form stipulated for in the deeds. The mere fact that the appellants prevent such enjoyment is sufficient ground for interference of the court by injunction. It is not necessary that the owner should prove damages to entitle him to his property. Like rule applies as if the right existed by covenant directly between Brown and Haeke, and in such case when the covenant is of such a nature that it can consistently with the principles of equity be specifically enforced the court will not unless under very exceptional circumstances take into consideration the comparative injury to the parties from granting the injunction.”</p> <p>Under these decisions the main consideration upon the question of whether the court has jurisdiction in the present case of not, is, are the rights of the complainants clear ? I take it they are so to be considered in every case, where there is no conflict of evidence upon any material issue, and the rights of the parties are simply to be declared as they arise out of the undisputed facts. Such is the position, as we have seen, of this case. In this view, the admitted acts of the defendants in obstructing Rock street are the invasion of a clear right vested in the complainants. There is no occasion therefore to require such right to be first established at law.</p> <p>But jurisdiction in equity will not be taken in every case, simply because the right is clear. The remedies at law must also be inadequate. The entire inadequacy of any legal remedy in the present case is, however, readily shown. Covenant would not lie, because there is no privity, either of contract or estate. A recovery might be had by the plaintiffs in ejectment, but only for one half of the street. This would not give them the benefit of the other half. Trespass or case would probably lie, but damages for each several trespass or obstruction would be no compensation to the plaintiffs for the constant invasion of their rights, nor for the denial of access, air, light, view, etc., which are the incidents of being bounded by a street. The right therefore being clear and the remedies at law inadequate, the jurisdiction of equity is perfect.</p> <p>2. So far we have been considering simply the restraint of obstructions to ways actually opened. The relief prayed for. in this case, however, goes further and calls for the enjoining of the defendants from standing in the way of the opening of the street to which plaintiffs have shown the right. This is, as we have seen, in the nature of a specific enforcement against the defendants of the covenant to open implied from the deed. It has been recognized as such by counsel on both sides, and their arguments have been directed accordingly.</p> <p>I will first meet the objection raised that in this view no relief will be granted because the conveyance to Mrs. Mason was a gift. The principle is undoubted that a voluntary contract will not be specifically enforced. BuPthis only applies so long as it remains executory. . When once it has become executed, then anything incident to the completed gift will be enforced against the donor, the same as if the transaction were based upon an original valuable consideration: Dennison v. Goehring, 7 Pa. 178, 179; Est. of Webb, 49 Cal. 541; Stone v. Hackett, 12 Gray 231; Kekewich v. Manning, 5 DeG., M. &. G. 176. To meet this, defendant’s counsel argues that the gift to Mrs. Mason was only completed so far as the conveyance and possession of her lot was concerned, and that as to the street, the gift was incomplete and imperfect, and Mrs. Mason having accepted the gift in such shape cannot now ask for its enlargement. On the other hand, counsel for plaintiffs have endeavored to show that valuable improvements have been made upon the strength of the gift to relieve it from its voluntary character, and in opposition to this again defendants have asserted that Mrs. Mason’s house was also a gift from her father. All this is entirely aside from the case. When the deed from Mr. Fellows to his daughter was delivered the gift was complete in all its extent. Nothing was then left to be executed so as to fully vest in her the title to that which was given. As I have already had occasion to remark, ejectment could immediately have been maintained by her if possession of the land had been denied, or covenant upon the implied duty to open the street. The right to all this at once upon delivery of the deed vested in her, as incident to and parcel of the grant, and whatever was necessary to put her in possession of the rights with which she thus became invested, both law and equity would do. There is therefore no ground for refusing to enforce this covenant because tbe transaction out of which it grows was originally voluntary.</p> <p>Nor is there any difficulty in enforcing this covenant against the defendants, because they have no privity with the plaintiffs,, but are merely grantees from Mr. Fellows. In Pomeroy Eq. Juris. § 689, it is said: “ If the owner of land enters into a covenant concerning the land, concerning its use, subjecting it to easements or personal servitudes, and the like, and the land is afterwards conveyed or sold to one who has notice of the covenant, the grantee or purchaser will take the premises, bound by the covenant, and will be compelled in equity either to specifically execute it or will be restrained from violating it; and it makes no difference whatever with respect to his liability in equity whether the covenant is or is not one which in law‘runs with the land.’” Many examples are given by the learned author in a note illustrating this doctrine. In the succeeding section he shows that the notice with which the party is affected may be constructive as well as actual.</p> <p>The whole subject is again brought forward in § 1295, where it is still more enlarged upon, in the text and notes. The reports are full of the same doctrine. In Scott v. Burton, 2 Ashm. 312, it is said by Judge King: “Injunction in the nature of specific performance to restrain the violation of covenants are among the most common as well as the most valuable means employed by courts of equity to make men do what conscience ought, to lead them to perform their contracts specifically and according to the terms thereof.”</p> <p>In Clark v. Martin, 49 Pa. 289, where the owner of two lots conveyed one of them upon the express condition, that no building should be erected upon the back of it higher than ten feet, it was held that this condition could be enforced against a subsequent grantee, by an injunction and a decree abating the building which had been erected pending suit.</p> <p>In Tuck v. Moxhay, 2 Phillips 778, it is said by the Lord Chancellor: “ If an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.” It was there held, that when a purchaser of land had covenanted to keep and maintain it, at all times, as a square and pleasure ground, and the defendant had purchased of the plaintiff’s vendee with notice, an injunction would lie to restrain the defendant from using the land contrary to the terms of the covenant.</p> <p>These are cases where the covenant or condition was attached to the grant, and so became a burden upon the grantee. But the same rule equally applies, when the covenant rests upon the original grantor, or those claiming under him. Thus in Mann v. Stevens, 15 Sim. 377, a person sold a lot of land to another and covenanted not to use the adjoining land except for ornamental purposes, and it was held that a subsequent purchaser who had notice of such covenant, might be enjoined from using the land in violation of it.</p> <p>In Yeaton’s Appeal, 105 Pa. 125, a covenant in a deed not to build within a specified distance of the line of the lot, was enforced in equity against a subsequent purchaser of the adjoining property from the common grantor.</p> <p>In Huber v. Gazeley, 18 Ohio 18, a public square had been laid out, and lots adjoining purchased by the complainants according to such plot. It was held, that a bill could be sustained to establish the dedication and preserve the public use against the defendants, who claimed title to the land covered by the square, as purchasers from the original owner and who were in possession of it, and erecting buildings thereon. See further: Whitney v. Union Railway Co., 11 Gray 364; Western v. McDermott, L. R., 2 Ch. App. 72; Truehart v. Price, 2 Munf. 468. These are only examples illustrative of the principle relied upon. They do not begin to exhaust the category, but are sufficient for our purposes.</p> <p>It must not be lost sight of in considering this aspect of the case, that to a modified extent Mrs. Mason was, at, and subsequent to, the date of Mrs. Ferguson’s deed, up to the time of Mr. Fellows’ death, enjoying a right of way over Rock street, one half of the land covered by it, being in her actual possession. From that possession she receded simply as preparatory to the opening of the street, after the right of way through the Fellows enclosure had been denied her. Thus the specific enforcement of this covenant amounts in part to a restoration.</p> <p>In every light, therefore, in which the case can be reviewed, the equities of the plaintiffs apipear, and it becomes our duty to declare and enforce them.</p> <p>The exceptions of the defendants to the master’s report are all overruled. The first eleven exceptions of the plaintiffs are overruled, but the twelfth, thirteenth, fourteenth and fifteenth exceptions are sustained, and a perpetual injunction is awarded as prayed for in the bill, the costs of suit to be paid by the defendants.</p> <p>A decree was signed in accordance with this opinion. The defendants thereupon took this appeal, assigning that the court erred:</p> <p>1. In ruling that the case presented upon the pleadings is one within the jurisdiction of the court sitting in equity.</p> <p>2. In ruling that the court sitting in equity has jurisdiction to enforce the specific performance of a voluntary covenant.</p> <p>3. In ruling that the mention of Rock street as a boundary in the deed from Joseph T. Fellows to Sarah E. Mason conveyed to her a right to the centre of the so-called Rock street.</p> <p>4. In ruling that the right of way claimed by complainant could only be lost by twenty-one years adverse user.</p> <p>5. In entering the decree in favor of the complainant according to the prayer of the bill.</p>

Nos. 19, 20 July Term 1886, Sup. Ct.; court below, No. 13 December Term 1884 and No. 1 February Term 1885, C. P. On November 7, 1884, a subpoena in divorce a vinculo matrimonii was issued upon a libel filed by Moses Detrick against Maggie Detrick, his wife, averring the marriage of the libellant and the respondent on January 3, 1864, and that the respondent, on September 22,1865, had wilfully and maliciously deserted and absented himself from the habitation of the libellant…

<p>ERROR TO THE COURT OE COMMON PLEAS OE BRADFORD COUNTS’.</p> <p>No. 441 January Term 1885, Sup. Ct.; court below, No. 124 December Term 1883, C. P.</p> <p>In the court below tbe action was assumpsit by Henry Dun-ham, to the use of F. T. Page, against The Imperial Fire Insurance Company of London. The writ was issued on September 17, 1883, and directed to the sheriff of Philadelphia county to be served upon Charles M. Prevost, agent for defendant company, appointed in pursuance of the statute. The plea was non-assumpsit.</p> <p>At the trial February 17,1885, the following facts appeared: On April 21, 1880, O. A. Seeley purchased by articles of agreement from T. A. SmuH’s Sons a tract of about 640 acres of land for the consideration of $5,129.50.</p> <p>On November 11, 1881, T. A. Smull’s Sons conveyed their legal title to the lands to F. T. Page, and the same day assigned to Page their interest in the said contract with Seeley. It did not appear that Seeley had then, or at any other time, paid any purchase money on said contract; but he had gone into possession and had erected a sawmill on the land.</p> <p>On February 8, 1883, O. A. Seeley obtained from D. A. Clarke, an agent of the Imperial Fire Ins. Co. of London, a policy of insurance for $1,200, distributed in various amounts to the sawmill, machinery, etc. The authority of D. A. Clarke to write policies for the said company was found in a certificate from the resident manager of its United States offices at New York city, which certificate set forth his appointment as its agent “ with full power to receive proposals for insurance against loss and damage by fire in Orcutt Creek and vicinity, to receive moneys and to countersign, issue, renew and consent to the transfer of policies of insurance subject to the rules and regulations of said company and such instructions as may from time to time be given by its resident manager at New York.” The application of O. A. Seeley for the insurance set out, inter alia, that the sawmill was not exposed at all by heavy woodland; swamp, always wet, next to woods ; that the buildings and machinery were both owned in fee simple by the applicant and that there was no other person interested in the property or any part of it; and the applicant made the facts and circumstances set out in the application a condition of the insurance and a warranty on the part of the assured. The jjolicy of insurance, issued on February 8,1883, contained provisions and covenants on the part of the assured, that the application should “ be considered a part of this contract, and a warranty by the assured, and that any misstatement of the condition, situation, or occupancy of the property insured, or the building or premises containing the same, or any concealment or omission to make known every fact material to the risk, or any overvaluation, or any misrepresentation whatever, either verbal or in writing, shall render this policy void. This policy shall be void and of no effect, if without notice to this company and permission therefor in writing indorsed hereon, the assured shall now have, or hereafter make or procure, any other insurance, whether valid or not, on the property hereby insured, or" any part thereof; or, if this policy be assigned before a loss; or, if the interest of the assured be other than the entire, unconditional, and sole ownership; or, if the property insured be a building standing on ground not owned by the assured in fee simple; or, if any change take place in the title, interest, location or possession...... No agent has power to waive any condition in this contract.”</p> <p>On March 29,1888, F. T. Page sold the lands referred to by articles of agreement to Henry Dunham, for $10,000, of which the sum of $400 was paid. In this contract Dunham engaged to keep the property insured for $1,200, and in case of loss by fire the insurance was to be paid to Page. The same day of this contract, O. A. Seeley assigned and transferred to Page by articles in writing all his interest in said lands under his contract with Thomas Smull’s Sons, this contract to become void in case said Dunham failed to fulfill his contract with Page.</p> <p>On April 14, 1883, D. A. Clarke, the agent of the insurance company, signed a statement written in the face of the policy: “ In case of loss, this policy payable to F. T. Page, as his interest may appear; ” and on April 17, 1883, he signed an indorsement on the back of the policy which then read: “ Athens, April 17, 1883, for value received, I hereby transfer, assign and set over unto Henry Dunham, and his executors or administrators, all my title and interest in this policy, and all advantages to be derived therefrom. Witness my hand this 14th day of April, 1883. [Signed] O. A. Seeley. Assented to this 17th day of April, 1883. [Signed] D. A. Clarke, agent.” The agent having so done, reported his actions to the manager from whom he afterwards had no communication on the subject.</p> <p>The property insured was destroyed by fire on May 19,1883, and on September 3, 1883, Henry Dunham assigned his interest in the policy to F. T. Page, who was made the use plaintiff in the suit brought.</p> <p>F. T. Page, on the stand as a witness on his own behalf, testified as to the contracts of March 29, 1883, and was then asked by his counsel: Q. What was the agreement, if anything, at the time, in relation to the assignment of this policy, between yourself and Dunham ? Objected to. Mr. Evans: We propose to show that there was an agreement for the transfer of this policy at the time that the contracts of ^ March 29, 1883, were made, and that it was communicated to Clarke, the company’s agent. Objected to. Objection overruled. A. The agreement was that the policy should be transferred in accordance with the contracts.1</p> <p>The same witness: Q. What reply did the agent make, if any, at the time you informed him what you wanted done with the policy ? A. Why, he replied, “ all right,” that he would make it; that he had no objection to the transfer. Mr. Hart: We object to this. Objection overruled.3</p> <p>Mr. Hart (in the defendant’s case): We now offer in evidence the paper marked exhibit A., being the application made by Mr. Seeley for this policy of insurance. Mr. Evans: We object on the ground that the paper is immaterial and irrelevant, and that the alleged application not having been attached to the policy in suit, cannot be received in evidence, and forms no part of the contract between the parties. [See § 1, act of May 11, 1881, P. L. 20. — Rep.] Objection sustained.3</p> <p>Mr. Hart: We now ask the permission of the court to have the application attached to the policy, and as thus attached to read it in evidence. Mr. Evans: We object to it on the ground that it would be irrelevant and immaterial to offer it in evidence even if it were attached; that the rights of the parties were fixed by the law, and the contract cannot be changed by attaching the application to the policy at this time. Objection sustained.4</p> <p>The court, P. D. Morrow, P. J., charged the jury and answered the defendant’s points as follows:</p> <p>Now, the transfer by Seeley of his interest to Page, on the 29th of March, 1883, avoided the policy, because Seeley took the insurance, and after he had conveyed his interest in the property to Page, he had no insurable interest left in it, and by the terms of the policy it was forfeited. Afterwards, on the 14th of April, 1883, Mr. D. A. Clarke, who was the agent of the company, wrote on the face of the policy that the money, in case of loss on the policy, was to be paid to F. T. Page, as his interest might appear, and Seeley assigned the policy the same day, to Dunham. [On the 17th of April, the policy was sent to Mr. Clarke, the agent, by Mr. Fellows, and Mr. Clarke approved of that assignment, and forwarded to the company by the first mail a statement or report, showing what he had done on the 14th, and also on the 17th of April. And the company, so far as the evidence in this case shows, made no objection to what had been done by Mr. Clarke.] 11</p> <p>[It is claimed on the part of the plaintiff, that, although the policy was forfeited by the transfer by Seeley of his interest to Page, on the 29th of March, yet that by the. writing by Mr. Clarke, on the 14th and 17th of April, approving of the assignment, the policy was restored and left in full force as an insurance to Henry Dunham, and that is the principal question in this case. The certificate of agency from the company to Mr. Clarke testifies that David A. Clarke,.....has been appointed and duly constituted agent of The Imperial Fire Insurance Company, with full power to receive proposals for insurance against loss and damage by fire in Orcutt Creek and vicinity; to receive moneys, and to countersign, issue and renew, and consent to the transfer of policies of insurance, subject to the rules and regulations of said company and such instructions as may from time to time be given by its resident manager, at New York.</p> <p>Under this certificate, we think that Mr. Clarke had power to renew and reinstate that policy, provided he knew that there had been a transfer of the property before doing it.]18 [Confessedly, the policy was forfeited on the 29th of March, and, unless Mr. Clarke had knowledge of the fact of the transfer and forfeiture when he signed on the face of the policy, on the 14th of April, and approved of the assignment on the 17th of April, it was not. renewed, and the plaintiff cannot recover. But if you find that he did have full knowledge of the transfer of the property, and did it with full knowledge of such transfer, then we think that, under his power in that certificate of agency, the policy was restored, and became of force and binding effect upon the company.]13</p> <p>[The evidence of Mr. Page, and it is not contradicted, is that at the time the transfer was made to him by Seeley, on the 29th of March, 1883, it was talked over there in regard to the assignment of the policy, and that it was agreed that Seeley should assign to Dunham.]14 Mr. Page also testifies that soon after, and before the 14th of April, he saw Mr. Clarke, and told him of that agreement, and also told him of the transfer of the property, and that the policy at the time he told him, being where Mr. Seeley resided, at Newfield, Tompkins Co., N. Y., it could not be done that day. But the policy was afterwards returned, and the fact is not disputed that it was presented to Mr. Clarke, first in Mr. Fellows’ office, and afterwards, for his approval of the assignment, at Orcutt Creek.</p> <p>Mr. Clarke, however, swears that he had no knowlege of any transfer of the property on the 14th of April, when he wrote on the face of it, that in case of loss the money was to be paid to Page, as his interest might appear. But he says that Mr. Fellows sent it to him by mail, and then told him, in the letter, that the property had changed hands, and that that was the first he knew of it. He then approved of the assignment. Now, Mr. Clarke probably knew that if there had been a transfer of the property, the policy was forfeited. And he admits that Mr. Fellows told him that there had been a transfer then, and he approved of the assignment to Dunham, and returned it, as he thinks, by mail, and afterwards saw Mr. Page and asked him if he had received his policy, and if it was all right, and Mr. Page replied that he had received it, and that he supposed it was all right. [Mr. Clarke also says that he afterwards made a report to the company (which is in evidence) and that he heard nothing from the company but what they approved of what he had done. He also adds, in answer to a question of counsel, that it is usual for the company to notify him at once, in case they disapprove of any of his acts.]15</p> <p>[Now, as we said before, if you find from the evidence, that Mr. Clarke had knowledge of the transfer of the property, and the forfeiture of the policy, on the 14th and 17th of April, and after such knowledge wrote upon it what he did, that restored the policy to force in the hands of Henry Dunham. And that is the only fact that is submitted to you as being in dispute. If you find that he had such knowledge, then the plaintiff is entitled to recover the amount of his claim. If you find that he did not have such knowledge, then the plaintiff is not entitled to recover anything.]16</p> <p>The defendant’s points are thus answered:</p> <p>1. The condition in the policy that the policy “ shall be void and of no effect, if, without notice to the company, and permission therefor in writing, indorsed thereon, the buildings insured stand on ground not owned by the assured in fee simple,” has been broken, because the interest of the assured in the land on which stood the building insured by said policy was not that of an owner in fee simple, and the plaintiff cannot recover in this case.</p> <p>Answer: That is refused.5</p> <p>2. The condition in the policy that if the interests of the assured be other than the entire, unconditional and sole ownership, the policy shall be void and of no effect, has been broken, because the interest of the assured and the property insured was not as required by said condition, and the plaintiff cannot recover in tiffs ease.</p> <p>Answer: This point is also refused.6</p> <p>3. The condition in the policy to the effect that the same should be void if, without notice to the defendant and permission therefor in writing, indorsed on the policy, the title and interest and possession of the property in the policy mentioned and hereby insured should in any way be changed, has been broken, in that, and because on March 29, 1883, the Assured, O. A. Seeley, ceased to have and to own the said property and the title and interest therein had by him at the time of the issuing to him of such policy, and Henry Dunham became, on said day, and thence thereafter was the owner of the title and interest of said Seeley, so by him had before such day, and the possession, also, of said property, on said day, passed from said Seeley to said Dunham. That by reason of the said change in the title, interest and possession of said Seeley in the said property insured, the said policy on said day became and was forfeited, and at an end.</p> <p>Answer: That is affirmed. And the plaintiff cannot recover, unless you find, as I have already instructed you, that the policy was restored, with knowledge on the part of Mr. Clarke that it had been forfeited, when he wrote upon the face of it what he did write on the 14th of April, and consented to the assignment on the 17th of April.7</p> <p>4. The policy being then forfeited and at an end on March 29, 1883, was not revived and of effect to and in favor of said Henry Dunham by reason of what occurred after that date, because:</p> <p>(1) There was no agreement to that effect founded on any consideration.</p> <p>(2) Nor was such forfeiture intended to be waived by the defendant, nor was the alleged forfeiture under circumstances to estop the defendant from asserting the forfeiture.</p> <p>Answer: This proposition, including the first and second paragraphs of it, I refuse under the evidence in the case.8</p> <p>(3) The acts of the agent, D. A. Clarke, did not waive such forfeiture or revive the policy. The power conferred on bim by the certificate of agency of the defendant to him to consent to assignment of policies did not enable him on April 14th and 17th to make good the policy after the said forfeiture of March 29th. The restriction on his power in the policy to waive any of its conditions was operative and not qualified by his certificate of agency.</p> <p>Answer: Under the evidence this third paragraph of the fourth point is refused.9</p> <p>(4) The acts of Clarke on April 14th and 17th, though he had power, were not a waiver of the forfeiture, unless he was aware that the change of title and interest had occurred on March 29th, and with knowledge or information thereof, intended to waive the forfeiture caused thereby.</p> <p>Answer: This fourth paragraph of the fourth point is affirmed.</p> <p>(5) The agent, Clarke, not having power to waive the forfeiture, or the breach of the condition which caused the forfeiture, the defendant is not bound by the alleged or attempted waiver by him, unless it has ratified his acts. For such ratification, it must be shown that the defendant had full knowledge of the forfeiture and of the facts which caused the same. The defendant cannot be held to have ratified the agent’s acts, or to have intended to waive or to have waived the forfeiture, because of any knowledge or information by the agent of such forfeiture and of facts causing the same and communicated to the defendant.</p> <p>Answer: In the first place we say in answer to this fifth paragraph of the fourth point, that we think Mr. Clarke having knowledge of all the facts and circumstances had the power to waive the forfeiture and restore the policy, and that if the jury believe his evidence, that he transmitted it to the company, and they approved it, it was a ratification of his act and a restoration ■of the policy. And Mr. Clarke testifies that when he made reports to the' company, it was usual to notify him at once, if they did not approve of his acts.10</p> <p>A verdict for $1,308 -was returned in favor of the plaintiff, and judgment being entered thereon, the defendant company took this writ assigning for error:</p> <p>1, 2. The admission of plaintiff’s offers.1 3</p> <p>3, 4. The rejection of defendant’s offers.3 4</p> <p>5. The answer to defendant’s first point.5</p> <p>6. The answer to defendant’s second point.6</p> <p>7-10. The answers to defendant’s points. 7 t0 10</p> <p>11-16. The parts of the charge embraced in [ ] 11 to 16</p> <p>The cause was first argued in this court on March 15,1886; was affirmed on March 29, 1886 in a Peb Ctibiam: which is reported in 6 Cent. R. 593; on May 28, 1886, on motion of plaintiff in error a re-argument was ordered, and the attention of counsel directed to the sixth assignment of error.6</p>

<p>No. 73 January Term 1883, Sup. Ct.; originating in No. 68 January Term 1870, Sup. Ct.</p> <p>This case began with an alias summons in case, issued from the Supreme Court at nisi prius on September 30, 1869, in a suit by John W. Storey against John Zebley, Jr., wherein the narr. declared for a malicious prosecution of the plaintiff by the defendant, under a charge of obtaining goods under false pretences, and averring the determination of the criminal prosecution by a discharge of the plaintiff after a hearing upon a writ of habeas corpus. Under the plea of not guilty, an issue was joined which eventually on September 22,1875, came on for trial in the Court of Common Pleas, No. 3, of Philadelphia county, into which court the case had gone for trial under the provisions of the new constitution, and a non-suit was then entered against the plaintiff. On June 19,1878, the court made absolute a rule to take off said nonsuit, “ on payment to defendant of costs of September Term 1875, and agreement by plaintiff to admit in evidence notes of Aider-man Beitler’s testimony, and of other witnesses for the defendant who cannot be produced at next trial,” which agreement was filed and said costs paid.</p> <p>At the trial on November 14, 1881, it appeared that on July 26, 1869, John Zebley, Jr., of the firm of John Zebley, Jr., & Co., in the wholesale notion business, had made an information before Alderman Beitler charging John W. Storey with the offence of obtaining goods under false pretences, after having been advised by Mr. Joshua R. Rhoads, his attorney, upon a full statement to him of the facts, “ that it was clearly a case of obtaining goods under false pretences,” etc. Storey was arrested upon the warrant issued, and on a hearing, committed to jail in default of bail. After remaining twenty-seven days in prison, he obtained a hearing upon a writ of habeas corpus and was discharged. The discharge was resisted by the prosecutor.</p> <p>In the plaintiff’s case: The plaintiff testifying, having stated the circumstances of his arrest and his failure to find bail, said: “ Went back to the den at Fifth and Chestnut and remained there until the van went down to prison in daylight, with two prisoners, one drunk and spewing. I went down in daylight to prison into cell 149.” Plaintiff proposed to show condition of cell, and all that occurred there, and his surroundings there. Objected to. Objection overruled. The witness then testified as to his discomforts while in prison.1</p> <p>The plaintiff offered in evidence an exemplification of the record of the Court of Quarter Sessions upon the proceedings on the writ of habeas corpus. Objected to, on the ground that the record showed no determination of the prosecution, and on the ground of irrelevancy. Objection overruled and evidence admitted.3</p> <p>In the defendant’s case: The defendant testifying, having denied that he had ever said that if Storey did not pay he would keep him in prison, as alleged by witness McFarland, proceeded: “ I saw Mr. Storey again the day he was taken to the old Quarter Sessions room, for hearing on writ of habeas corpus; Judge Brewster presiding. Mr. Ruddiman conducted the hearing on the part of the commonwealth. He was not my counsel.” Q. Can you say whether or not Mr. Ruddiman said at that time to the court, that Storey had had his opportunity and ought to go to prison? Objected to. Objection sustained.3</p> <p>William F. McFarland, called for the defendant:</p> <p>Q.. Were you not, at an examination before Mr. Reeves, asked by Mr. Gerhart: “ Did he, Storey, not say, at the conversation in Franklin Square, that he had authority to buy from his brother, but that he had no written authority, as he did not think it necessary ? ” and did you not answer, “ I do not recollect anything of that conversation taking place there at that time; ” and if you made such answer, why did you not then say that Mr. Zebley said, in conversation between him and members of the firm, that Mr. Storey had told him, Zebley, that he had no written authority ? ”</p> <p>Objected to by plaintiff; objection sustained.4</p> <p>Mr. Joseph R. Rhoads, attorney, testified as to his being advised with by the defendant upon the subject of Storey’s offence: “ The conclusion of my advice to him was that the firm could not collect the bill, and that in my judgment as a lawyer, it was clearly a case of obtaining goods under false pretences, and that it was his duty as a merchant— ” Counsel for plaintiff objected to this testimony as not being legal advice; the conversation is as to public duty. Offer, to prove the whole of the conversation between Mr. Rhoads and Mr. Zebley. The court ruled that the witness should be confined to what his advice was as to defendant’s rights, not as to his public duty.5</p> <p>Mr. Joseph T. Ford, attorney, called for defendant; had attended at a hearing before Alderman Beitler on behalf of Storey. Q. Do you know at whose instance Mr. Storey was brought up from prison the second time ? Objected to. The question was to be followed by the inquiry whether witness knew it was at the instance of Mr. Zebley or Mr. Rhoads. Objection sustained.6</p> <p>The deposition of William F. McFarland was then offered in evidence by defence, in which deposition among other things he testified as follows : “ He said that Jacob Riegel & Co. had brought suit against his brother, but that he did not know whether his brother would pay or not, as they had hot been on good terms for years. I mentioned this next day to Mr. Zebley; ” said witness, having already testified that what he had said to Zebley was not true. Objected to. Objection sustained.7</p> <p>The defendant then offered the notes of the testimony of John M. Cummings, deceased, taken at a former trial.</p> <p>The plaintiff objected to that portion of the testimony in which the witness stated as follows: “ He told me his wife was a daughter of William Means, and among other things he asked me if I had seen my brother, the doctor, lately. 1 said I had not, and he then said ‘ The next time you see or write to Jim tell him you sold a bill of goods and have become acquainted with William Storey, and he will remember me.’ There was present Mr. Ivins, at his desk, within a few feet of where we were sitting. The next afternoon he came in and said he was going to leave the city that night; the goods were charged and shipped to William Storey, Curlsville. I sold him another bill November 27, 1868. Nothing particular occurred then, goods were charged and shipped as before. He did not tell me then he was John W. Storey buying for William Storey.” Defendant replied that he offered the said portion of the notes of testimony, under the order of court made when the nonsuit was taken off, and as having been particularly called to the attention of the plaintiff himself then on the witness stand, and denied by him. The court sustained the objection.8</p> <p>The court, William H. Yerkes, J., charged the jury as follows:</p> <p>On the 26th day of April, 1869, John W. Storey was arrested upon a warrant issued by alderman Beitler. That warrant was based upon an affidavit made by Mr. Zebley; and Mr. Storey had a hearing before the alderman, and was committed without bail, and remained in prison twenty-seven days. Now he comes here and brings a charge that that was a false and malicious arrest. He was discharged upon a writ of habeas corpus, after twenty-seven days’ imprisonment; and he brings this suit for a malicious prosecution. To sustain his suit he must convince you that the criminal proceding against him was without probable cause, and was with malice. Malice may be inferred from the want of probable cause, but you must find that both malice and want of probable cause are on his side.</p> <p>Now, the charge brought against him is, not of attempting to defraud his creditors, or of concealing his property, but that he purchased goods from this plaintiff upon false representations with intent to defraud; and it is for you to say whether, under all the evidence in this case, Mr. Zebley had reason to believe, from his own knowledge, or rather what was told him by Mr. Storey, for in this case, I presume that he bases his entire case upon the information derived from Mr. Storey with certain corroborating circumstances, that he was guilty of this offence. Now he upon one side has testified as to that. And upon the other side Mr. Storey has testified as to the conversation between them, upon which this action of Mr. Zebley was based. There were no other witnesses except those two. You have heard the testimony of both. I will not go over it. I will only read a sentence or two. Mr. Storey said: “ I then told him”- — you remember the conversation about the power of attorney — “ I then told him I had verbal authority. He and I had a conversation about my authority. He said I had no power; I contended I had. He said he could not collect his money from William Storey without a written power of attorney.” That is the testimony of John W. Storey. The testimony of Mr. Zebley is: “I asked him about how the stock came to be transferred to him. He said he consulted an attorney and found the goods were liable to be attached. I remarked, ‘ How were they liable ? ’ He said, ‘ I have no power or authority from my brother to use his name.’ Nothing was said about written authority.”</p> <p>It is upon that, if I understand Mr. Zebley and if I understand Mr. Rhoads, that they base their belief that he acted without authority. You have the affidavit; and it is said, I think, in the concluding phrase of that affidavit: “falsely representing the goods to be for his brother,” or “falsely representing he had authority from his brother.” That is the direct testimony upon that ground. If he did say that his brother had given him no authority, or power, of any kind, why that would be probable cause for believing that he was guilty of a criminal course; that is, together with other circumstances, cause, if the debt was long unpaid.</p> <p>That is for you to find and pass upon, whether the story as told to you by Mr. Storey, or the story told to you by Mr. Zebley is true. If you find that Mr. Storey’s story is true, that he told him he had no verbal authority, then all the case depending upon that falls to the ground. That is the principal point in the case for you to pass upon. Both sides contend that they are corroborated, or that there are facts in the case which corroborate their stories. Upon one side, the plaintiff contends that he, having made representation, and obtained goods upon that representation, it is improbable that he, himself, voluntarily and gratuitously, would state he had no such authority; and he also contends that the receipt and draft, or rather the order upon William Storey, is evidence that such a story was not told, and that, in the subsequent proceedings, a suit against William Storey was brought on the 7th of June, following, by Mr. Zebley suing Mr. Storey is also evidence of the same fact.</p> <p>On the other hand, the defendant contends that he is corroborated by a statement made to Mr. Cummings about the same time, or afterward, perhaps; but, still, it is a corroboration of what he said; that is, that he told Mr. Cummings he had no authority from his brother. And, especially, do they contend that the plaintiff’s selling the store out without the knowledge of his brother, and providing for himself, is a corroboration that the store was his; and it is likely he told the story to Mr. Zebley.</p> <p>All these facts upon both sides are for you, and it is for you to determine upon them. It is not necessary that Mr. Storey should have been guilty of that offence, but only whether Mr. Zebley had probable cause; that is, had he information upon which he had a right to rely ? If he had, then he had a right. Whatever would induce a prudent man to believe Mr. Storey had been guilty of an offence in obtaining the goods, gave him this right to arrest him. The question of his guilt or innocence is a matter with winch you have nothing to do.</p> <p>As to the other matter in regard to the attorney’s advice, it is a point of law that when a client goes to an attorney or magistrate, and lays before him a truthful and full statement of the case, and upon that statement the attorney or the magistrate advises a prosecution, then there could be no suit maintained for malicious prosecution. ■</p> <p>That is all I have to say, I think, upon the law of the case.</p> <p>The only other question is in regard to damages. They are for you to assign, if you find that Mr. Zebley had no probable cause. It is not for compensation; but the law gives what is called vindicatory damages for such an offence as this. It is for you to consider what sum Mr. Storey should receive for the false arrest, if it was a false arrest.</p> <p>I am asked to charge you upon many points; I think I have answered them all, except the last.</p> <p>The sixth point presented by the defendant is as follows:</p> <p>A discharge of the plaintiff upon a writ of habeas corpus, after hearing thereon in the Court of Quarter Sessions, is not such a final determination of the prosecution against him as will entitle him to maintain his present action, and the verdict of the jury must be for the defendant.</p> <p>Answer: This I refuse.9</p> <p>The verdict of the jury was for $2,750 in favor of the plaintiff, and judgment being entered, the defendant took this writ assigning for error:</p> <p>1, 2. The admission of the plaintiff’s offers.1 8</p> <p>3-8. The rejection of the defendant’s offers.3 t0 8</p> <p>9. The refusal of the defendant’s sixth point.9</p>

<p>ERROR TO THE COURT OE COMMON PLEAS NO. 4 OE PUTT, A - DELPHIA COUNTY.</p> <p>Nos. 82, 83 January Term 1886, Sup. Ct.; court below, No. 417 December Term 1881, No. 212 September Term 1880, respectively, C. P.</p> <p>On September 28, 1880, to No. 212 referred to, Isaac S. Waterman, trading as Waterman & Co., brought assumpsit against Henry S. Eckert to recover $45,834, with interest, being the balance due on account of steel blooms sold and delivered by tbe plaintiff to the defendant. The pleas were non-assnmpsit, payment and payment with leave. On December 31, 1881, to No. 417 referred to, Henry S. Eckert brought assumpsit against Isaac S. Waterman, trading as Waterman & Co., to recover 131,066.74, being damages (1) for defendant’s failure to deliver 6400 tons steel blooms in time, as per contract ; (2) for loss on sale of 3940 tons steel blooms delivered after time and received under protest; with a credit admitted of an amount due defendant on certain cargoes delivered prior to March 31,1880. The pleas were non-assumpsit, payment with leave, set-off, etc. On April 7, 1883, the death of Isaac W. Waterman was suggested, and E. P. Dwight, Clara W. Dwight and John C. Bullitt, his executors, substituted.</p> <p>Both causes were referred under the act of May 14,1874, P. L. 166, to Mr. Gceo. Tucker Bispham, as referee, who found the facts following:</p> <p>On October 31, 1879, Messrs. Edward Samuel & Co., representing the London firm of Sanders Brothers, sold through Charles W. Mathews, of Philadelphia, a metal broker, to Messrs. Waterman & Co., a certain quantity of steel blooms, the particulars of the sale being set forth in a “sold” note, duly executed, of October 31, 1879, viz.:</p> <p>Quantity, 5000 tons.</p> <p>Brand or make, Bockum Yerein......</p> <p>Price, five pounds fifteen shillings and sixpence sterling per ton, 2240 pounds......</p> <p>Place of delivery, free on board, continental ports.</p> <p>Time of shipment, in equal proportions during the next five months.</p> <p>Shipping directions to be given at such times as will enable deliveries to be made by the sellers, as above stated.</p> <p>Note. — It is understood that the blooms are to be subject to purchaser’s inspection at mill if required, and that the manufacturer’s best quality for rail purposes is meant.</p> <p>This “ sold” note was signed by Charles W. Matthews, and his action was confirmed by a memorandum, in writing, at the foot thereof, signed by Messrs. Edward Samuels & Co., on behalf of their English principals.</p> <p>To this contract of October 31 there was a supplementary contract of November 17, 1879, the provisions of which were set forth in a “ sold ” note, duly executed, as follows:</p> <p>Quantity, five thousand (6000) tons; size, 7 X 7; weight, about 600 lbs. each, with latitude of about 3 p. in weight.</p> <p>Brand or make, Bockuin Verein.'''</p> <p>Place of delivery, f. o. b., Rotterdam.</p> <p>Time of shipment, about 1000 tons monthly, commencing Nov. ’79, to Mar. ’80, as nearly as may be.</p> <p>Shipping directions, per steam vessels to Philadelphia, at 10s. Qd. per ton, for 4600 tons, as per freight contract in hands' of Sanders Bros., and accepted here by Waterman & Co.</p> <p>On November 5, 1879, Messrs. Waterman & Co. made another large purchase of steel blooms, this purchase being made from Messrs. Clark, Post & Martin, of New York, who had, in their turn, purchased them from Sanders Brothers. The terms were stated in the foEowing “sold” note, viz. :</p> <p>New York, November 5, 1879.</p> <p>Messrs. Waterman & Co., Philadelphia.</p> <p>Dear Sir: We have this day sold to you steel blooms on the foEowing terms, viz.:</p> <p>Quantity, five thousand tons Bessemer steel blooms, 7x7, weighing about six hundred pounds each.</p> <p>Quantity, from time to time during manufacture.</p> <p>Price, five pounds eighteen shiEings sterling per ton, twenty-two hundred and forty pounds, f. o. b., continental ports.</p> <p>Delivery, about equal amounts monthly during November, January, February and March, including four hundred tons now shipping to Philadelphia.</p> <p>Clark, Post & Martin.</p> <p>Accepted if, as represented, made from Cumberland pig iron.</p> <p>(Signed) Waterman & Co.,</p> <p>Charles W. Matthews.</p> <p>The foregoing contracts called for ten thousand tons of steel blooms, and prior to January 15,1880, certain deliveries, under the contracts, had been made, so that on the date last mentioned the amounts caEed for by the two contracts respectively were, by that with Sanders Brothers, 4366 tons, and by that with Clark, Post & Martin, 4534 tons; total, 8900 tons.</p> <p>Messrs. Sanders Brothers were merchants in London; Messrs. Clark, Post & Martin were doing business in New York; Messrs. Waterman & Co. were a Philadelphia house, and Mr. Henry S. Eckert was engaged in business at Reading, Pennsylvania; Mr. Matthews, as has already been stated, was a metal broker, doing business in Philadelphia.</p> <p>On January 15, 1880, the following contract was executed by Mr. Matthews on behalf of Messrs. Waterman & Co., with Mr. Eckert, viz.:</p> <p>Office, 133 Walnut Street,</p> <p>Philadelphia, January 15,1880.</p> <p>Sold to Henry S. Eckert, Esq., for account of Messrs. Waterman & Co., eighty-nine hundred (8900) tons German blooms, as follows, viz.: About forty-three hundred and sixty-six (4366) tons Bockum make, and about forty-five hundred and thirty-four (4534) tons “ Rhenish Company’s ” make Bessemer blooms, sizes 7x7, weight to be six hundred (600) pounds each, with a latitude of from two to three (2 to 3 ) per cent, either way, and deliverable during the months of December, A. D. 1879, January, February and March, A. d. 1880, f. o. b., vessel at continental ports, at seven pounds five shillings (¿É7 5s.) per ton of 2240 lbs., Rotterdam and Antwerp being ports meant. Sellers also agree to turn over a certain freight contract made to cover forty-five hundred (4500) tons of blooms, by steamer from Antwerp to this port, at ten shillings sixpence (10s. 6d.), deducting the amount of six hundred and thirty-four (634) tons from freight contract which are now in this port by “ Zeeland.”.....</p> <p>Charles W. Matthews, Broker.</p> <p>Accepted, Henry S. Eckert.</p> <p>Of the blooms sold under the above contract, 4366 tons were of those which had been bought by Messrs. Waterman & Co. from Messrs. Sanders Brothers by the contract of October 31, 1879, and its supplement of November 17 of that year; and 4534 tons were blooms purchased from Messrs. Clark, Post & Martin by the contract of November 5, 1879. The entire quantity of blooms, 8900 tons, was stated by the terms of the contract of January 15,1880, to be deliverable during the months of December, 1879, January, February and March, 1880, free on board vessel at continental ports, Rotterdam and Antwerp being tbe ports meant; and by tbe terms of tbe agreement it was provided that the sellers should turn over a certain freight contract made to cover 4500 tons of blooms by steamer from Antwerp to Philadelphia, at 10s. Qd., less 634 tons, which had already been shipped under the freight contract, and was then in Philadelphia, by steamer “ Zeeland.” This freight contract was that which is alluded to in the agreement of November 17, 1879, with the memorandum as to shipping directions at the foot of that contract already quoted.</p> <p>Of the 8900 tons of blooms mentioned in the contract of January 15,1880, there were delivered to the purchaser (Mr. Eckert) prior to March 31, 1880, 2489 tons. There were delivered after March 31,1880, 3940 tons, which were received by Mr. Eckert under protest. There remained undelivered 2470 tons, which were not delivered in consequence of Mr. Eckert’s allegation that the contract had been broken by the sellers, and his consequent refusal to accept the same, as will be hereafter particularly stated.</p> <p>By the terms of the contract of January 15, 1880, the purchasers’ credits were to be substituted for those of Waterman & Co. This provision in the contract was complied with by Eckert, who, on January 23,1880, took out credits sufficient to cover the balance of the purchase money due by Waterman & Co. to their vendors on both contracts.</p> <p>On March 1, 1880, Messrs. Clark, Post & Martin wrote to Mr. Matthews, advising him that they had received on that day a cable dispatch from Messrs. Sanders Brothers in regard to the blooms which were then coming forward on the contract between Clark, Post & Martin and Waterman, and stating that hardly any sail freight was available for Philadelphia; that they could ship by sail to New York more cheaply, and asking whether they might ship to New York- or to Philadelphia at their option, and whether they should ship by sail or steam, advising, also, that “ steam freight to Philadelphia was 20s. steam, to New York cheaper.”</p> <p>The blooms covered by the original contracts already referred to, seem to have been the property of Sanders Brothers, and the lot which was sold by Messrs. Clark, Post & Martin to the Messrs. Waterman was simply a lot to which they were entitled by virtue of a prior contract of purchase which they had made with Sanders Brothers.</p> <p>It seems to have been the understanding of all the parties to these original contracts, viz.: Messrs. Sanders Brothers, Messrs. Clark, Post & Martin, and Messrs. Waterman & Co., that it was the duty of the purchaser to furnish vessels on board which the blooms were to be delivered by the sellers, or at all events to make some arrangements whereby the sellers would be advised as to the shipping which was to receive the blooms, and as to the port where such shipping was to be found. Accordingly, by the terms of contract between Messrs. Sanders Brothers and Messrs. Waterman, on November 17th, supplementary to that of October 81st, provisions were made for a shipment to the extent of 4500 tons, under certain freight contracts which were then in the hands of Sanders Brothers, and which were accepted as satisfactory by’Messrs. Waterman & Co. Sanders Brothers were, therefore, apparently to attend to the shipping of the merchandise under the contracts which they had in their possession to the extent, at all events, of 4500 tons.</p> <p>As to the other lot, that namely purchased from Clark, Post & Martin, it also appears that Messrs. Sanders Brothers undertook, as a matter of favor and without charge, to procure vessels for the shipment of that lot, the freights of course to be paid by the purchasers. There was a misuirderstanding between Messrs. Sanders Brothers and Messrs. Waterman & Co. as to the extent of Messrs. Sanders Brothers’ authority in this regard, the former being under the impression that they had authority to make shipping arrangements for the entire lot, the latter supposing that that authority extended only to a particular shipment. This understanding on the part of Sanders Brothers existed up to March 9, 1880, when they were informed that a different understanding had been supposed to exist by Waterman & Co. In other words, up to March 9, 1880, Sanders Brothers were under the impression that they were, as a matter of favor, to look after vessels for Waterman & Co-.</p> <p>After the purchase by Mr. Eckert had been effected through Mr. Matthews as the broker, Eckert seems to have given very little personal attention to it, that is, so far as related to the receipt, the handling and disposition of the blooms when they should arrive at Philadelphia. Mr. Eckert’s statement of the relations between Mr. Matthews and himself is as follows: .....Upon the consideration of the foregoing and other evidence in the case, I find that in the correspondence hereafter mentioned Matthews is to be considered as Eckert’s agent.</p> <p>Such, then, being the condition of things as to the arrangements which had been made or had been supposed to be made touching the shipping facilities on the other side, and such also being the relation, viz., that of principal and agent for the purpose of attending to shipping arrangements, which existed between Eckert and Matthews, the next subject for consideration is as to what passed between Matthews, acting for Eckert, and Messrs. Clark, Post & Martin, Messrs. Sanders Brothers, and Messrs. Waterman & Co.</p> <p>, The substance of the letter of March 1, 1880, to Matthews from Clark, Post & Martin has been already given. It referred to the blooms which were deliverable under the contract between Clark, Post & Martin and Waterman, and the dispatch to which it referred was evidently sent by Sanders Brothers, in view of the authority which had been given them to act on behalf of Messrs. Waterman, and for the purpose of ascertaining what their further action under that authority should be. This letter of March 1st was answered by Matthews on March 2d, as follows : “ I have placed myself in communication with the parties in interest, and will advise you on receipt of their replies.”</p> <p>The parties in interest referred to in this letter were evidently Mr. Eckert.</p> <p>On. March 4, 1880, Clark, Post & Martin telegraphed to Matthews as follows: “Our friends cable ‘We wait answer our cable. First blooms ready expenses accruing your account.’ If you have nothing from Eckert had we not better order them to New York, in view of high rates, Philadelphia. Answer to-night.”</p> <p>To this telegram Matthews sent the following reply on same day: “ Must know amount of first shipment and date of shipment before my friends decide. They prefer sail to steam shipment and been offered at twelve shillings Antwerp or Rotterdam. Answer and will give you instructions per cable. Reply at once.”</p> <p>On the same day Matthews wrote to Clark, Post & Martin to the same effect, saying: “ My friends object to steam shipments, and think that price given by your friends higher than the ruling market rates. I will advise you, however, positively to-morrow whether we or they can make the freight rates.”</p> <p>On March 5, 1880, Clark, Post & Martin telegraphed to Matthews advising him that the shipments made Zeeland, 149, Vaderland, 19, Venezuela, 602 tons blooms are f. o. b. Rotterdam.</p> <p>On same day Matthews wrote to Messrs. Clark, Post & Martin, acknowledging the receipt of the telegram and saying: “Messrs. Waterman & Co. bought f. o. b. Rotterdam or Antwerp, with no specifications or orders as to shipments of same. I understand he authorized Messrs. Sanders Brothers to make shipments. My friends desire the blooms to be shipped by sail and not by steam. It was the duty of Sanders Brothers or yourself to notify my parties when they were ready to be shipped, so that they could provide transportation for same specially, as they have been offered by sail at not exceeding twelve shillings six pence per ton for the whole contract. I will, however, notify my friends of the shipments that have been made by the above-named vessels when I receive from you the rates of freight upon which such vessels have been taken up. If they see fit to accept such rates, I will notify you, but I must in their name protest against the assumption of Messrs. Sanders Brothers to make shipments and arrange freight rates for my principals. Upon receipt of your advices as to freight rates, of the vessels’ names and date of shipments, I will advise you of my principals’ decision.”</p> <p>On the next day, March 6, 1880, Matthews’ again wrote to Clark, Post & Martin, notifying them that Sanders Brothers had failed to make shipments according to contract; that it was their (Sanders Brothers’) duty to notify his (Matthews’) principals, “Waterman & Co., or Eckert, as you see fit to acknowledge, that they may be able to make their own freight arrangements;” and that “Messrs. Waterman & Co. insist that they should be advised when each lot of blooms is ready for shipment, that they themselves may have the opportunity of making the freight rate.”</p> <p>To this letter Clark, Post & Martin replied on March 8th, saying that on the strength of correspondence with Messrs. Waterman & Co., in the previous November, they had cabled to Sanders Brothers to ship all the blooms to Philadelphia, and adding: “Now if you wish to vary these instructions Messrs. Waterman & Co. must give you authority for us to cable Sanders to cease making further freight contracts, and at the same time you must give us instructions as to whom Messrs. Sanders are to apply for vessels, as the blooms are ready to come forward.”</p> <p>On the same day, Clark, Post & Martin telegraphed to Matthews as follows: “Venezuela, six hundred two tons freight, twelve and six, sailing vessels.”</p> <p>On the same day Matthews wrote saying that the “Venezuela ” shipment was satisfactory, and asking if Clark, Post & Martin had any freight rates on hand, as “ his parties ” would like “ to make a contract for the entire balance of shipment.”</p> <p>On March 9, 1880, Matthews wrote to Clark, Post & Martin, acknowledging the receipt of their letter of the 8th, and saying that the supposed authorization by Waterman & Co. to Sanders Brothers to make freight arrangements was intended by the former firm to apply only to a temporary exigency. He added: “Regarding future shipments, Messrs. Waterman & Co. will accept a similar rate of freight, viz.: twelve shillings six pence for any blooms Messrs. Sanders Brothers may have on contract with you now ready for delivery or for delivery during this month, but they again most emphatically protest against any charge being made for expenses accrued from the storing or detention of blooms as estimated in your letter, would be the case.”</p> <p>On March 10, 1880, Clark, Post & Martin wrote in reply, saying that in their previous communication with Sanders Brothers as to freight arrangements they had acted simply as the mouthpiece of Messrs. Waterman, and that “we are now ready to have him instruct us as to what he wishes done in the matter, and we will communicate with Sanders Brothers.” They also said in the same letter: “ You must give positive instructions now as to the shipment of the balance that freight may not have been engaged for, as we will not accept or assume any responsibility in connection with this matter. We agree to deliver the stuff f. o. b., and it is the purchaser’s business to furnish vessels; and what we have done is simply from courtesy, and we have communicated to Sanders Mr.Waterman’s instructions. Tour intimation is that Mr. Waterman’s protests are simply met by a counter-protest on our part. We will cable Sanders, if you wish, not to engage any more-ships, but simply to notify Mr. John Jones, or any other person Mr. Waterman selects, that the blooms are ready for shipment.</p> <p>On March 11, 1880, Matthews wrote to Clark, Post & Martin, saying that in consequence of Mr. Waterman’s absence from Philadelphia the authorization which they desired could not be obtained, and adding: “Regarding the various points in your favor, they have been submitted to my principals, and doubtless will be settled to your satisfaction.”</p> <p>On March 16,1880, Clark, Post & Martin wrote to Matthews, advising him that they were in receipt of a letter from Messrs. Sanders Brothers of March 3d, in which the following language was used: “We are sorry not to have received a reply from you respecting shipments of blooms lying at Antwerp to New York in place of Philadelphia. The goods are quite ready waiting shipment, and we fear that we shall have a heavy bill against you for expenses if they are not got there. The matter is so urgent that we have thought it advisable to cable you again to-night, and we hope in the morning to receive your definite instructions; of course the blooms cannot wait in Antwerp for an indefinite time without being paid for, and if they are not shipped speedily we shall have to get you to make some arrangements for payment to be made under credit.”</p> <p>Matthews, on March 18, 1880, wrote to Messrs. Clark, Post & Martin, as follows: “ I have been advised by parties here that freights are readily obtained from Rotterdam, and in fact, they have been offered a contract to cover the whole balance to be shipped from that port, blooms at 13s. Qd. to Philadelphia, or 12s. Qd. (New York or Baltimore). I therefore desire that in your next cable you will advise Messrs. Sanders Brothers not to make the deliveries at Antwerp at additional expense at Is. Qd, but make the shipments from Rotterdam at not exceeding that price before named, or in case they can’t do that I am not in position to close the contract for the balance. Please give me your views on this subject, as you see it is a very serious matter to my principals, making a difference of some 3s. or 4s. per ton, which you know at the present time is a profit.”</p> <p>On March 23,' 1880, 998 tons and 1438 lbs. blooms were shipped by Sanders Brothers by the “Vaderland” from Antwerp, and were delivered on April 22,1880. The shipments up to and including that of March 23, aggregated 2487 tons and 1187 lbs. The next shipment was made April 24th.</p> <p>On April 27, 1880, Eckert, by letter of that date, notified Matthews, as the broker of Waterman & Co., that their contract to deliver blooms at Antwerp and Rotterdam during December, 1879, January, February, and March, 1880, f. o. b., had been broken by the failure to deliver 6377 tons at the ports named and within the time stipulated, and that he (Eckert) would look to Waterman & Co. to make good the loss.</p> <p>On April 29th, Sanders Brothers cabled Eckert as follows: ■“ Cable cash 350 pounds, bloom freight.” Which was repeated on the next day.</p> <p>On April 29th, Eckert replied by cable, as follows: “My ■contract with Waterman ended April 1st, will carry no more freight.”</p> <p>On May 13, 1880, another notice of Messrs. Waterman & Co.’s alleged breach of contract was given by letter from Eckert directly to them, the letter also containing a statement that as Eckert’s outstanding credits with Brown, Brothers & Co. were being used to pay for the blooms, and as those credits would not expire until June 30th, he (Eckert) would receive all blooms delivered after April 1st, under protest, and sell the same for account of Waterman & Co.</p> <p>The shipments from April 24 to June 26,1880, aggregated 3940 tons 492 lbs., making a total, of all shipments, of 6429 tons 1679 lbs.</p> <p>The amount which, under the contract, was payable by Eckert to Waterman for the 2487 tons delivered before March 31st, would be $17,513.33. The loss to Eckert on blooms ■delivered after that date was over $30,000.</p> <p>From the findings of fact above set forth I draw the following conclusions:</p> <p>[That of the blooms of the Sanders contract 4500 tons were covered, as to shipping directions, by the freight contract in Sanders Brothers’ hands ;]x</p> <p>[That the blooms of the “ Clark, Post & Martin ” contract were supposed by Sanders Brothers to be covered, as to shipping directions, by the arrangements made between Waterman & Co. and Sanders Brothers in November, 1879 ;]a</p> <p>[That Sanders Brothers were therefore, when the correspondence between Matthews and Clark, Post & Martin as to freight rates began, fully advised as to the port from which shipments were to be made, and as to vessels which were to receive the blooms; for these arrangements had been distinctly assumed by them, and they needed no further shipping directions from the vendees ;]3</p> <p>That, as to the blooms of the Clark, Post & Martin contract, Matthews, as the representative of Eckert, alleged that they were not to be forwarded under the shipping directions which had been given or were supposed to have been given by Waterman & Co.;</p> <p>That upon this position being assumed by Matthews, he was promptly requested by Clark, Post & Martin, acting for Sanders Brothers, to give new shipping directions on account of the purchaser, and was distinctly advised that the blooms were ready to come forward as soon as shipping directions were given;</p> <p>That Matthews thereupon requested that deliveries should be made at Rotterdam, provided freight could be secured at or below a rate which he named, and asked to have Clark, Post & Martin’s views on this subject;</p> <p>That no reply was made to this letter; and that no explanation was given for the failure to make deliveries at Rotterdam in compliance with this request; and</p> <p>[That the purchaser had therefore a right to suppose that the shipping facilities referred to by him could and would be secured, and certainly a right to suppose that he could not be considered in default until some reply had been received from the sellers to the effect that the proposed arrangement was unsatisfactory to Azm.]4</p> <p>Another general question of fact which was disputed was this, viz.: Was there any agreement between the parties that the time within which the blooms were to be supplied according to the liberal terms of the contract was to be extended? Under this question I find the following facts: . . . [ I have considered the testimony on both sides and I am not satisfied that there is sufficient evidence to show any agreement to extend the time. I accordingly find as a fact that the time within which deliveries were to be made under the written contract was not subsequently or contemporaneously extended by any verbal agreement between the parties.]5</p> <p>In Waterman & Co. v. Eckert, 212 September Term 1880, the referee submitted the following, as his conclusions of law upon the foregoing facts:—</p> <p>In Benjamin on Sales, it is said: “In the absence of a contrary agreement, the vendor is not bound to send or carry the goods to the vendee. He does all that he is bound to do by leaving or placing the goods at the buyer’s disposal, so that the latter may remove them without lawful obstruction. And if the delivery by the vendor is to take place upon the doing of certain acts by the purchaser, the vendor is not in default for non-delivery until notice from the purchaser of the performance of the acts on which the delivery is to take place. Thus, if the vendor agrees to deliver on board of the purchaser’s ship as soon as the Tatter is ready to receive the goods, the purchaser must name the ship, and give notice of his readiness to receive the goods on board, before he can complain of their non-delivery:” Benjamin, Sales, 1018.</p> <p>Armitage v. Insole, 14 Q. B. 728, certainly seems to be an authority in support of this proposition; and Davis v. McLean, 21 W. R., 264, is an authority in support of the converse proposition that when something is to be done by the vendor, the purchaser is not in default until he has been notified that the action of the vendor has taken place.</p> <p>It is believed that the proposition as stated by Benjamin is not in conflict with any English or Pennsylvania cases.</p> <p>In Fleming v. Potter, 7 W. 382, and Santee v. Santee, 64 Pa. 479, there were no acts to be done by the party who was to receive the goods prior to the time when delivery was to be made by the other party, and hence the duty of delivery was held to be absolute; while in Fessler v. Love, 43 Pa. 313, the time and place for delivery of the goods was fixed by the contract, and as nothing was to be done by the buyer, the court very properly said that the “ contract was a demand.” The same remark may be made as to Cullum v. Wagstaff, 48 Pa. 304, where the contract really “ named the ship.”</p> <p>In Cassell v. Cooke, 8 S. & R. 268, the tender of the conveyance and the payment of the hand-money were said to be concomitant acts, and that being the case the vendor, on the one hand could not recover the purchase money without making a tender of the deed, while on the other hand the buyer could not enforce a conveyance without a tender of the purchase money; and in Pinkus v. Hamaker, 11 S. & R. 200, the same ruling was made in regard to a contract to deliver personal property. But can it be said that this decision has any application to a case in which the contract itself provides that, instead of the acts of vendor and purchaser being concomitant, the act of one of the parties should precede the act of the other ?</p> <p>I think, therefore, that the general rule must be taken to be that the purchaser, in an ordinary “ f. o. b.” contract, should name the ship.</p> <p>Assuming, however, that the right proposition to start with is that the purchasers were to make arrangements to furnish vessels on board which the merchandise was to be delivered, and to notify the vendors that the vessels were ready, and that until this was done there was no duty, in respect of the delivery or even tender of the goods, resting upon the sellers, the question is whether in the present case arrangements to receive the goods on board vessels tvere made by the buyers, and whether notice of such arrangements was given to the vendors; and further, if any arrangements were made at all, how far did such arrangements modify the rule as stated.</p> <p>There were two lots of blooms: One lot, amounting to 4366 tons, was that bought by Waterman of Sanders. The other lot, amounting to 4534 tons, was that bought by Waterman of Clark, Post & Martin, and which had been bought by Clark, Post & Martin of Sanders.</p> <p>The first lot was originally (i. e., when sold by Sanders Brothers to Waterman) accompanied by a freight contract for 4500 tons, then in the hands of the vendors (Sanders), and the “shipping directions” at the foot of the supplementary sold-note for this lot were “ per steam vessel to Philadelphia at 10s. 6d. per ton for 4500 tons, as per freight contract in hands of Sanders Brothers and accepted here by Waterman & Co.” The “ sold ” note to Eckert provided as follows: “ Sellers also agree to turn over,” etc.</p> <p>[The effect of the existence of this freight contract in the hands of the original vendors, and the stipulations that Eckert was to have the benefit of it, and that it was to be used as the means of shipping 3866 tons (4500 less 634) from Antwerp to Philadelphia, was (as I understand it) equivalent to a provision made by the purchasers to have vessels at Antwerp ready to receive the merchandise and a notice to the sellers to that effect. The means of enabling the vendors to deliver “free on board” so far as 3866 tons were concerned, had been placed in their (the vendors’) hands, for the port was named and the means of shipment indicated.</p> <p>The rule as to “ naming a ship ” relied upon by counsel for Waterman & Co. was thus, I think, satisfied; and, in point of fact, the vendors did not ship enough blooms to fill this freight contract. I do not think, therefore, that Eckert can be considered in default, for the reason that the freight contract furnished by him was never exhausted.]6</p> <p>In regard to the other lot of blooms, that namely which had been sold by Sanders Brothers to Clark, Post & Martin and resold by the latter to Messrs. Waterman & Co., it appears that the duty of furnishing shipping had been assumed by Messrs. Sanders Brothers, but that this assumption had been repudiated by Messrs. Waterman & Co. and by Mr. Matthews, who was then, I find, acting as Mr. Eckert’s agent. If matters had rested here it might, possibly, have been Eckert’s duty to have provided vessels and notified Waterman, or Sanders, or Clark, Post & Martin when they were ready, although even this is doubtful in view of the fact that the existing freight contract had not been exhausted. But after the repudiation by Matthews of Sanders Brothers’ authority to bind Waterman or Eckert, he (Matthews) wrote to Clark, Post & Martin, requesting or instructing them to cable Sanders Brothers to procure vessels from a certain port and at a certain rate. To this request or instruction no answer seems to have been made. [Now it was contended on behalf of Waterman & Co. that the right to choose between the alternate ports of delivery was vested in the purchaser, and that until he exercised that right and notified the vendors of his election, they could not be considered in default. But it seems to me that when Matthews, on Eckert’s behalf, instructed Sanders Brothers, through Clark, Post & Martin, to “ make the shipments from Rotterdam ” (see his letter of March 18, 1880), it was, at least, the duty of Sanders Brothers (and consequently of Waterman & Co., who must be considered as responsible for Sanders Brothers’ acts), to have the blooms at that port, and either ship them at the rates named or notify Eckert that they were ready for shipment. The duty of giving notice of readiness to perform the contract, if it rested on Eckert, was transferred by the letter just referred to, to the vendors.]7</p> <p>Especially is this the case in view of the arrangement which had theretofore existed, in Sanders’ view of the matter, as to procuring freights.</p> <p>[I think, therefore, that the purchaser could not under these circumstances be considered in default, and I think that the vendors were in default. If they could not deliver under the shipping directions which had been given, for any reason other than their own inability to comply with the contract, the duty of saying so would seem to me to devolve upon them, and Eckert might fairly charge them with default if they did not notify him of the existence of such a reason. Under such circumstances and after such a letter as that of Matthews, I do not think that the purchaser can be held to the rule of the ordinary “ f. o. b.” contract.]8</p> <p>[Under the above findings of fact and conclusions of law, Messrs. Waterman & Co. would be entitled to recover the amount payable to them under the contract of January 15, 1880, for the blooms delivered prior to April 1, 1880, to wit, $17,513.33, but as against this there should be set off the loss sustained by Eckert by reason of the failure of Waterman & Co. to complete the delivery of the 8900 tons of blooms before said date. This amount is ascertained in the finding in Eckert v. Waterman, filed herewith. It amounts to $48,649.36, with interest from March 31, 1880.]9</p> <p>[I find, therefore, generally, in this case for the defendant.]10</p> <p>In Eckert v. Waterman & Co., 417 December Term 1881, tbe referee reported as follows:</p> <p>I find as facts in this case the facts found by me in the case of Waterman v. Eckert, Common Pleas, 4, No. 212 September Term 1880, a copy of said finding being hereto annexed.</p> <p>The claim of Messrs. Eckert & Co. is made up of four items:—</p> <p>1. A loss of profit on blooms delivered after March 31st, and which were received under protest.</p> <p>2. A loss of profit on blooms not delivered at all.</p> <p>3. A loss on the sale of blooms delivered after March 31st; and</p> <p>4. A loss by reason of alleged failure to deliver blooms in equal monthly instalments.</p> <p>Under the views expressed in the opinion in Waterman v. Eckert, I think that Messrs. Eckert & Co. are entitled to recover the first three items of their claim.</p> <p>The first two items may be considered together. The total of blooms undelivered on April 1, 1880, was 6410 tons. The contract price with Waterman was ¿£7 5s. Od. per ton. Adding to this the duties and other expenses, and the cost to Eckert would be about fifty dollars to fifty-three dollars per ton. The market price of blooms between the date of the contract and the 31st March was about sixty dollars a ton, reached as high as sixty-two dollars per ton on the 20th March, but on the 29th March dropped to fifty-eight dollars and fifty cents. The liability of the defendant is probably to be fixed as of the 31st March. In fixing the price at that time to be between fifty-nine dollars and sixty dollars, I find as a fact that the loss to Eckert on the lot of 6410 tons, at, say seven dollars a ton, would be $44,873.29. As to the third item, I find as a fact that his loss on the sale of the 3940 tons which arrived late, was $3,776.07. The total of these items of loss is $48,649.36. From this amount is to be deducted the profit due to Waterman for the 2489 tons delivered in time, viz., $17,513.33,' leaving the balance due to Eckert & Co. of $31,136.03, with interest from March 31, 1880.</p> <p>I do not think that the fourth item of loss claimed by Messrs. Eckert & Co. can be taken into consideration. The contract did not provide for delivery of blooms in equal monthly instalments. It simply provided that the blooms should be deliverable “during the months of December, A. D. 1879, January, February and March.” It is true that in the contracts which were referred to in the contract of January 15, 1880, there are stipulations providing for deliveries in monthly instalments, but I do not think that those stipulations can be imported into the contract of January 15th. The reference in that contract to the preceding contract seems to me to be simply for the purpose of identifying the analysis and mechanical test of the blooms, or rather for fixing a standard for such an analysis and test, and not for the purpose of incorporating the terms of the earlier contracts into the agreement between the parties to the present suit. Under this view, and in the absence of any demand on the part of Eckert for equal monthly deliveries, I do not think that the vendors were in any default because the deliveries were not in equal monthly instalments. Their default (as I have already found) consisted in a failure to deliver within the proper time, viz.: four months. This view seems to be justified by the language of the decision of Bergheim v. Glenhaven Iron & Steel Company, Limited, L. R., 10 Q. B. 319, to which I was referred by the plaintiff’s counsel.</p> <p>In this case, therefore, I find for the plaintiff in the sum of $31,136.03, with interest from March 31,1880.</p> <p>In each of said cases Waterman & Co. filed exceptions, that after correctly finding the facts</p> <p>1-3. The referee erred in his conclusions.1 3 3</p> <p>4-10. The referee erred in the parts of his report in [ ] 4 fc010</p> <p>The referee overruled the exceptions, and in No. 212 directed judgment to be entered for the defendant, and in No. 417 directed judgment to be entered in favor of the plaintiff for $41,442.04, whereupon Waterman & Co. took these writs assigning as errors in each case the overruling the said exceptions and the orders entering said judgments.</p>

3 OF PHILADELPHIA. COUNTY. No. 95 January Term 1887, Sup. Ct.; court below, No. 719 December Term 1884, C. P. No. 3, in equity. The proceeding in the court below was a bill in equity filed by H. Dumont Wagner, in his own right and as trustee under a certain agreement, dated January 27,1880, against the Goodwin Gas Stove & Meter Company and William Wallace Goodwin, to enforce the specific performance of said agreement.

<p>CERTIORARI TO THE COURT OF QUARTER SESSIONS OF MONTGOMERY COUNTY.</p> <p>No. 181 January Term 1886, Sup. Ct.</p> <p>On June 1,1885, certain “ owners of and residents thereon of certain lots, out-lots and other tracts of land in the township of Pottsgrove,” petitioned the Court of Quarter Sessions to have the said lots, out-lots and tracts, described by metes and bounds, annexed to the borough of Pottstown, according to the acts of assembly in such case, etc. On June 30, 1885, exceptions were filed, setting out, among.other grounds, that “the act of assembly under which the proceeding was instituted is unconstitutional and void and incapable of execution.” The exceptions were dismissed on September 21, 1885.</p> <p>On October 8,1885, Mr. Weand, for the exceptants, “ challenges the following grand jurors, viz.: Jonathan Kehl, a resident and freeholder of the borough of Pottstown, Thomas Beekley, a resident and freeholder of Pottsgrove township; said Kehl and Beekley, being directly interested in said proceedings : ” verified by affidavit. The challenge was filed and overruled. On October 12, 1885, the certificate of the grand jury recommending the granting of the prayer of the petitioners was filed, whereupon on November 2, 1885, the opponents filed the following exceptions:</p> <p>1. The proceedings are illegal and void, as the act of June 11,1879, P. L. 150, under which said proceedings are instituted, is unconstitutional and void.</p> <p>2. The borough of Pottstown having been incorporated by act of assembly, Oct. 6, 1815, 6 Sm. L. 246, is not entitled to the provisions of the acts of May 17, 1883, P. L. 36; of June 11, 1879, P. L. 150, and April 3, 1851, without first complying with the 33d. sec. of act of 1851.</p> <p>3. The court erred in not sustaining the challenge to grand jurors Jonathan W. Kehl and Thomas Beekley, both of whom were residents within the district affected, and thus directly interested in the result.</p> <p>On argument of these exceptions, the court, B. Mabkley Boyes,, P. J., on December 7, 1885, filed the following opinion and decree :</p> <p>Since the overruling of former exceptions and the action of the grand jury, exceptions have been filed anew to the proceedings in this matter; and the act of June 11, 1879, more distinctly assailed as not being entitled in conformity with the requirements of the constitution, and not available under the act of May 17,1883, amending the same so as to extend its provisions to all boroughs howsoever incorporated. We deem it proper, therefore, to add something upon this question to the remarks heretofore filed; mindful of the principle laid down in Mauch Chunk v. McGee, 81 Pa. 433, that “useful and honest legislation should not be defeated by rigid adherence to the letter of the constitution, or pretexts be caught at to avoid legislation, where it can be fairly reconciled with the constitution.”</p> <p>The earlier general law among the acts of assembly now in force for the incorporation of boroughs and change of their limits is the act of April 1,1834, P. L. 163. That act provided for the incorporation into boroughs of towns or villages containing not less than three hundred inhabitants by the Court of Quarter Sessions, with the concurrence of the grand jury of the county, upon the application of not less than a majority of the freeholders residing within the proposed limits. The third section of the same act provided for a change of the limits of an incorporated borough in the following words; “ The same proceedings shall be had on an application to change the limits of any borough incorporated under this act, and the courts aforesaid shall have full power to decree such alteration as may be needful.” This is all that act says upon the subject of change of limits, or which could be applied to the annexation of territory to boroughs already incorporated under that act.</p> <p>The act of April 3,1851, entitled “ An act regulating boroughs,” P. L. 329, left the proceedings provided by the act of 1834 unrepealed: see McFate’s Appeal, 105 Pa. 323, but repealed the restriction to towns of three hundred inhabitants. It also provided, in section 30, for another new and independent method of ■ annexing adjacent territory to boroughs, by investing the burgess and town council of the borough with absolute authority to annex by ordinance adjacent territory upon the petition of twenty freeholders, owners of land residing within the section proposed for annexation. From this mode of annexation no appeal was provided until the act of June 2, 1871, section 4, provided in such case for an appeal to the Court of Quarter Sessions. Then came the act of June 11, 1879, P. L. 150, which supplemented the act of 1851 with a mode of proceeding not mentioned in that act, but entirely consistent therewith, and leaving the proceedings provided for in the act of 1851 entirely unamended and unaffected.</p> <p>Upon examination it will be found that the mode of annexation provided by the act of 1879 is in fact a re-enactment of the act of 1834 in that regard, and only expressly applying in detail the same provisions for the annexation of territory to boroughs contained in the general sentence already quoted from the act of 1834, assimilating proceedings for that purpose with the proceedings provided for the incorporation of boroughs by that act, but applying them to boroughs incorporated under the act of 1851. It cannot be said, therefore, that the act of 1879 is in conflict with either of the preceding acts •upon the same subject, or that it in any way alters either, although it adds some directions in regard to notice.</p> <p>But it is contended that the act of 1879 is unconstitutional and void, because not properly entitled. It is entitled “A supplement to an act for the regulation of boroughs,' approved the third day of April, A. D. one thousand eight hundred and fifty-one.” It was settled by the Supreme Court in the case of State Line & Juniata Railway Co.’s Appeal, 77 Pa. 429, that where the legislation in a supplement so entitled is germane to the subject of the original act, the object of such supplement is sufficiently expressed in the title. Were the ruling otherwise, Justice Paxson, in the case just cited, remarks that about fourteen hundred acts then recognized as laws upon the statute books of our state would be invalidated. All that is required in such a case is that the supplement should be germane to the subject of the original act. That the legislation of 1879 is germane to the subject of the original act scarcely admits of a doubt. The original bill provided a mode for the annexation of territory to boroughs by ordinance of the borough council; the act of 1879 provided for a proceeding for the same object initiated by an application to the court, leaving the mode provided by the original act untouched.</p> <p>The subject of the act having been, therefore sufficiently expressed in the title, does the form of its enactment conflict with the sixth section of the third article of the constitution ? We think, for the reasons already given, plainly not, leaving, .as it does, the act of 1851 unaltered.</p> <p>The acts of assembly already cited, however,- are all applicable only to boroughs incorporated under one or other of the general borough acts which have been named until the passage of the act of May 17, 1883, P. L. 36, which extended the operation of the act of 1879 to all boroughs in the commonwealth howsoever incorporated. In its enactment the strictest letter of the constitution was observed. It is entitled “ An act to amend the first section of an act approved June 11, 1879, entitled ‘ A supplement to an act for the regulation of boroughs, approved April 3, 1851, so as to include all incorporated boroughs.’ ” The act proceeds to recite the amended sections and to re-enact the section so amended at length, to wit: “ That the several Courts of Quarter Sessions within this commonwealth, by and with the concurrence of the grand jury of the county, shall have power to change the limits of any incorporated borough within this commonwealth.” There having been previous to the passage of this act no mode by which the annexation of adjacent territory, as in this case, to a borough incorporated by a special act of assembly could have been accomplished, without the surrender of the existing charter, the act of 1883 was a needed and useful act of legislation; as the merits. of the case, illustrated by the large numerical mar . jority of the resident freeholders who petition, and the unanimous certificate of the grand jury, sufficiently indicate.</p> <p>And now, December 7,1885, the exceptions are dismissed, and the court confirms the certificate of the grand jury and decrees that the part of the township of Pottsgrove within the limits specifically described by metes and bounds in the petition for the annexation of the same to the borough of Potts-town, be annexed to the same in conformity with the prayer of the petitioners; and that the said petition and this decree shall be recorded in the recorder’s office of Montgomery county at the expense of the applicants.</p> <p>The exceptants then took this writ assigning for error, that the court erred:</p> <p>1. In holding that the act of 11th June, 1879, P. L. 150, under which said proceedings were instituted, was constitutional.</p> <p>2. In not sustaining the challenge to the grand jurors, Jonathan W. Kehl and Thomas Beekley.</p> <p>3. In decreeing the annexation of the adjacent territory as prayed for, and in dismissing the exceptions to said proceedings.</p> <p>4. The record does not show that the court caused the “ application to be laid before the grand jury when in session.”</p>

No. 382 January Term 1887, Sup. Ct.; court below, No. 391 May Term 1885, C. P. On April 21, 1885, an action of covenant was begun by Michael Elliott, for use of Susan Dougherty, against The Ash-land Mutual Eire Insurance Co., of Pennsylvania, to recover upon a policy .of insurance.

No. 451 January Term 1887, Sup. Ct.; court below, No. 214 March Term 1884, C. P. On February 15, 1884, an action in assumpsit, with narr. in the common counts, was brought by Isaac C. Bechtel, for the use of Horatio Jones, trustee of Marion Jones, against Peter W. Sheafer.

<p>ERROR TO THE COURT OE COMMON PLEAS OF ERIE COUNTY.</p> <p>No. 214 July Term 1886, Sup. Ct.; court below, No. 141 May Term 1884, C. P.</p> <p>On April 7,1884, a suit in ejectment was instituted by U.. B. Lowe against W. W. Dalrymple, R. B. Dalrymple and Fred Fox, to recover a house and lot in the city of Corry. The plea was not guilty.</p> <p>At the trial on January 21, 1886, before Wm. A. Galbraith, P. J., the plaintiff, having shown possession by the defendants, deed from W. W. and R. B. Dalrymple to Philip. Hoffman, dated September 10,1879, for the lot in dispute, and deed from Philip Hoffman and wife to U. B. Lowe, dated October 17, 1879, for the same property, rested.</p> <p>On the part of the defendants, testimony was then adduced from which it was claimed:</p> <p>That prior to October, 1879, W. W. and R. B. Dalrymple were the owners of the property in controversy. After negotiations for the sale of it to Philip Hoffman, a deed was prepared and dated on September 10,1879, by the Dalrymples to Hoffman, and also two judgment notes of the same date, each for 1186.50, to be executed by Hoffman. When the deed had been acknowledged, the grantors having homes at different localities, but, with Hoffman, then temporarily at Bradford, Pa., it was placed in the hands of Darius Mead, together with the two notes, to be delivered to Hoffman, upon his execution of the notes. Mead delivered the deed to Hoffman and received from him the notes, duly signed, late in the afternoon of October 16,1879. In the forenoon of October 17th, Mead gave the notes to W. W. Dalrymple, who transmitted them by mail to the prothonotary at Erie, and telegraphed attorneys at that place to see that judgments were entered on them. The notes reached the prothonotary between 4 and 5 o’clock, p. M., on October 18th, and the judgments were at once entered :</p> <p>That when the deed was delivered to Hoffman at Bradford, Pa., he immediately went to Corry, and the next day, October 17, met U. B. Lowe, and with him made a trade of the property he had bought from, the Dalrymples for a property less valuable, and. $300 in money. That day Hoffman made a deed to Lowe for the Dalrymple property, and Lowe was subsequently to make a deed for the property he was to give in exchange, to Hoffman’s wife or to some person whom Hoffman was to name. The boot-money was deposited by Lowe, and the deed by Hoffman, in the hands of Mr. C. G. Olmstead, an attorney at law, who was sent to Erie to see if any liens were entered against Hoffman. Mr. Olmstead arrived at Erie the evening of October 17th, and on the next day, October 18th, searched the record. Finding no liens he left Erie and reached Corry in the afternoon or evening, when he delivered Hoffman’s deed to Lowe, who lived about eleven miles in the country but was waiting to receive it. The deed from Lowe for his house and lot, in exchange for that, conveyed by Hoffman, was made on October 21, 1879, not to Hoffman, but to one Murray Raymond:</p> <p>That as soon as the judgments had been confessed upon the notes of Hoffman to the Dalrymples, the prothonotary telegraphed to Olmstead at Corry the fact of their entry. This dispatch it was claimed was received by Mr. Olmstead, while the business of the delivery of the deed to Lowe was being closed. Subsequently the property in dispute was sold by the sheriff upon one of the Dalrymple judgments and bought in by the defendants who obtained possession by ejectment on the sheriff’s deed, when this suit was brought.</p> <p>Philip Hoffman was called by the defendants, and by leave of court his testimony was taken by a cross-examination. Darius Mead was afterwards called: Defendants’ counsel offers to show by the witness the declarations of Philip Hoffman, made to .the witness, as to what occurred at Corry on Mr. Olmstead’s return from Erie, to the effect that Mr. Olmstead received there, before the consummation of the trade, a telegram from the prothonotary at Erie, informing him that two notes against Philip Hoffman had been received for record, and that this occurred in the presence of Mr. Lowe.</p> <p>Objected to: Mr. Hoffman and ■ Mr. Olmstead are present in court, Mr. Hoffman is defendants’ witness and defendants cannot impeach or contradict him; no conspiracy has been shown, and the offer is to show something which occurred after the transaction was ended. On the ground that, in the opinion of the court, sufficient. evidence of a combination had been given, the objection was overruled.1</p> <p>Q. Mr. Mead, state whether Mr. Hoffman made any declarations to you about what occurred on the evening of Mr. Olmstead’s return to Erie, and, if so, what? A. Mr. Hoffman told me — that was perhaps a week after this thing happened — Objection made to the witness testifying to anything told him at the time he refers to. Objection overruled.8</p> <p>The witness then testified that Hoffman told him that they had made the trade and they put the money and deed in Mr. Olmstead’s hands and sent him to Erie to search the record; that when he came back and they were up in Mr. Olmstead’s office they got a telegram stating there were two notes at Erie on record; that he undertook to tell Mr. Lowe there were two notes out and Mr. Lowe stopped him and said he did not want to hear anything about the notes.</p> <p>The court in the charge reviewed the testimony and submitted to the jury to find whether the plaintiff “ was a bona fide purchaser without notice, or was he cognizant of and a participant in the fraudulent purpose, evidently intended by Hoffman, to prevent the defendants from being paid the amount of purchase money due to them and represented by the two judgment notes given by him at the time he received from them the deed for this lot ? ”</p> <p>The verdict of the jury was in favor of the defendants, and judgment being entered thereon, the plaintiff took this writ, assigning inter alia as error:</p> <p>1, 2. The admission of the defendants’ offers.1 8</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OE CLEARFIELD COUNTY.</p> <p>No. 290 January Term 1882, Sup. Gt.; court below, No. 275 January Term 1882, C. P.</p> <p>On December 5, 1881, Phoebe Tyler brought an action of ejectment against John E. Putnam to recover a lot of ground containing about one third of an acre, with a dwelling house and other improvements thereon. A like suit was brought by the same plaintiff against Charles W. Scates, for another lot of like size, and with like improvements. The facts of both cases being the same, they were tried together in the court below ^and argued together in this court.</p> <p>On the trial, September 28, 1886, one ground of defence was an outstanding title to the lots in Jones, Warner & Andrews, claimed to be as follows:</p> <p>Tract 4897 was surveyed under warrant in 1794, on Bennett’s Branch of the Sinnemahoning creek, and contained 990 acres and allowance. The location was made over an older survey, the James Hutchinson, made in 1785, and which occupied the whole of the land in 4897 except the northwest corner, containing about 100 acres, and the southwest corner, containing about 135 aerees. In 1826 and 1827, tract 4897, in the name of Wilhelm Willink, was assessed in the unseated list as 100 acres. The taxes being unpaid it was sold by the treasurer of Clearfield county, and by him conveyed to Ebenezer Hewitt, who on July 26, 1836, conveyed his title to Jones, Warner & Andrews. The two deeds were duly recorded on August 11, 1836.</p> <p>But it was claimed by tbe plaintiff: That by sundry conveyances in evidence the title to 4897 bad become vested in 1812 in William Coxe, who conveyed on September 10, 1816, to Alexander Boyd, recorded; that on September 30, 1819, Alexander Boyd conveyed to Martin Nicbols 750 acres of tbe west part of 4897, wbicb included most of tbe parcel claimed by Pbcebe Tyler as 36 acres and tbe lots in controversy so far as they were within tbe 36 acres ; that on February 26, 1820, said Alexander Boyd conveyed to Jonathan Nicbols 300 acres, residue of 4897, wbo on July 25, 1823, conveyed to John Ma-comber; that on March 9, 1853, Martin Nicbols conveyed to David Tyler 100 acres in northwest corner of 4897 and 36 acres more or less in said survey on the south, described as the same parcel conveyed by Ebenezer Hewitt, recorded June 24, 1854; and that on September 9,1881, David Tyler conveyed to Pbcebe Tyler tbe parcel described as 36 acres more or less in tbe southeast corner of 4897, bought from Martin Nicbols.</p> <p>It was also claimed by tbe defendants that tbe plaintiff was estopped by tbe conduct of David Tyler, her grantor. Tbe facts out of wbicb this estoppel was alleged to arise appear in tbe charge of tbe court below and in tbe opinion of this court.</p> <p>Tbe court, John Dean, P. J., charged tbe jury as follows:</p> <p>Tbe issues you are sworn to try are two ejectments for two’ lots of ground each 70x170 feet, at Tyler’s station, Huston township, in this county. Tbe plaintiff in both actions is Phoebe Tyler; tbe defendant in one case is J. E. Putnam and in tbe other is Charles W. Scates. Scates, and those in possession with him, bold their title under J. E. Putnam. [Tbe two lots are part of a piece containing 36 acres, more or less]4 wbicb 36 acres formed part of a tract containing 990 acres and allowance, originally warranted February 3, 1794, to Wilhelm Willint and others, associated as tbe “Holland Land Co.” Tbe tract was numbered, under tbe system of granting lands at that date in that part of tbe commonwealth, No. 4897. It was surveyed on February 18, 1794, and patented July 23, 1800,' to Isaac Wharton, David Lewis and others. Tbe title to tbe land embraced in this patent by regular conveyances through a number of parties down to February 20,1820, became vested in one Martin Nicbols, wbo on March 9,1853, conveyed 100 acres of it, and 36 acres of it, to David Tyler. It appears that the 990 acres surveyed on the warrant to the Holland Land Co. had with the exception of this 100 acres, and 36 acres, been appropriated under an older warrant dated in 1785, and leaving vacant for appropriation under this warrant, when the survey was made in 1794, only the 100 acres, and the 36 acres. On June 1, 1869, David Tyler executed a mortgage on that part of the land conveyed to him by Martin Nichols on March 9, 1853, to William A. Wallace, to secure a loan. A scire facias was issued on this mortgage, judgment •obtained, and the land described in it sold to A. H. Dill on February 9, 1872, and a deed acknowledged. It is admitted by both sides that the mortgaged premises did not include the 36 acres, nor the land in dispute; [and afterwards, on September 9, 1881, David Tyler by deed duly executed and delivered, conveyed the 36 acres embracing this land in dispute in these two lots to this plaintiff, his daughter, Phoebe Tyler.]5</p> <p>[Unquestionably, on the undisputed evidence in the case, this plaintiff, Phoebe Tyler, has a legal title to the 36 acres, and is entitled to the possession of it, unless there be that in the evidence which in equity will estop her from asserting her •claim against these defendants, Putman and Scates.]6</p> <p>The defendants allege that John E. Putnam, one of the defendants, and under whom they are claiming, by the representations of David Tyler, the grantor to Phoebe Tyler, was induced to believe that the real title was not in him (Tyler) but in another, and that acting on these representations he (Putnam) took a conveyance from the devisees of Wm. Coxe who was formerly an owner of this land; that he (Putnam) then took possession and made considerable improvements on these lots, the improvements costing several thousand dollars; that Tyler having knowledge of this, standing by and seeing him (Putnam) expending his money, never notified him of his •claim, and then after the money had been expended and the property made very valuable by reason of the improvements Tyler’s grantee, Phoebe Tyler, sets up this conveyance and brings an ejectment.</p> <p>The defendants allege that the plaintiff (grantee) and David Tyler, the grantor to this plaintiff, she holding or claiming title through her father, are in equity estopped from asserting title to the land. One who has title to land, yet induces another to believe that he has not title but that it is in another, thereby encouraging the party and deceiving him as to the title, is estopped from setting up his title against the party he has deceived. If it were permitted, it would be a fraud upon the party misled. Again, if one having title to land, stands by and sees another put up valuable improvements upon his land, the party putting up the improvements believing he has a right so to do, the mere silence of the real owner is a fraud upon the party who thus expends his money. It is his duty to speak when he sees his neighbor expending his money under a mistake or misapprehension as to title. Legally he owes his neighbor no such duty if he sees his neighbor expending money upon another’s land. No matter what the mistaken belief may be, inducing the conduct of a neighbor, if it is on another’s land legally he owes him no duty. But if he sees him making valuable improvements upon his own land, it becomes his duty to speak; he must tell his neighbor of his mistake, if it is a mistake, and he is to profit by the mistake. The maxim is : He who does not speak when he ought to speak, will not be heard when he ought to keep silence.</p> <p>Now we call your attention to the evidence so far as the material parts are contained in the deposition of J. E. Putnam, one of the defendants. We will read a portion of his testimony to refresh your recollection. Mr. Putnam says:</p> <p>I am the defendant in this action of ejectment brought by Miss Phcebe Tyler, in the Common Pleas Court of Clearfield county, No. 275 January Term, 1882. I think I took possession, or rather J. E. Putnam & Co. took possession of the land for which suit is brought against me and also the land for which Miss Tyler brought suit against Charles W. Scates, about the month of June, 1874.</p> <p>Before I took possession, David Tyler came to me and asked me if I knew that there was a piece of land, and pointed out to me where it was lying, between what was known as the Holt tract and the railroad, that is not patented, and I told him “ No; I don’t know it.” He also said, “ There is another piece lying back of the Tyler farm ” — if I remember right, on the north side of tract No. 4897 — “ that is not patented.” I said to ’Squire Tyler, “ I supposed that this piece between the Holt tract and the railroad belonged to the Tyler farm,” and also said to Tyler, that “ You cut the timber off of it.” “ Yes,” Tyler says, “ that’s all right, that’s all right.” I don’t remember certain whether I made the proposition to go to Harrisburg to get it patented, or whether he did. The arrangement was made between us that I was to bear the expenses of he and myself of whatever posts there were connected with it, of going to Harrisburg and getting it patented. We went, I think it was in June, 1874, and found that it had been patented. When the officials in the land office told us it was patented, Tyler said, “ Gad, that’s funny,” and on our way back on the train coming home, I said to Tyler, “ What shall I do now ? ” meaning, to find the title to this piece of land, and Tyler says, “ I don’t know.” I think I said to him, “ I will go and see Mr. Wallace, and have him look it up.” There was no other conversation between us that I remember, on until I think it was in 1879 or 1880, I cannot fix the time.</p> <p>It will be noticed that Putnam does not allege that Tyler expressly disclaimed title in the property; he (Tyler) stated that it was not patented. Then followed the visit to Harrisburg, and the discovery that it was patented.</p> <p>[Now, except in so far as expressing the belief that the land was not patented, according to Mr. Putnam’s own statement, there was no representation by Tyler that he had not at one time owned the land. There was no expression, no declaration of his, that the title was in any other person. Putnam seems to have acted, in his purchase of the alleged Coxe title afterwards, on the advice of his counsel; so it is alleged by the plaintiff.] 7 The defendants’ statement is, that while Tyler did not expressly deny that he had title to this land, still he acted throughout as if he did not own it, while he did not expressly suggest that the title was in another person. Putnam seems to have assumed that a better title was in another, from what Tyler did not say, rather than from what he did say. He did not expressly claim it, nor expressly disclaim it, but acted, the defendants allege, in a way that led Putnam to believe that he was not the owner of the land.</p> <p>Now we call your attention to Tyler’s statement under oath:</p> <p>I live in Huston township, Clearfield county, Pennsylvania. I am 73 years of age next March. I am acquainted with the land in dispute in this case. The land, of which this is a part, originally embraced about 36 acres, more or less. I bought the land from Martin Nichols; Nichols conveyed it to me. In the same deed he conveyed another 100 acres to me. The two pieces were about three quarters of a mile apart. The larger piece lies on the north side of Bennett’s Branch of the Sinnemahoning, and the smaller piece on the south side of the same .stream. It was a year, or probably two years after I bought them before I got a deed for them. I got possession of them right after the purchase. The Nichols deed is recorded. I cut the timber off of the smaller piece several years ago. When I bought there was one year’s taxes due on the larger piece. I can’t say as to the smaller piece. I have always paid the taxes on this land from that time up to the present. After purchasing I had the land assessed to me.</p> <p>I had two or three conversations with John E. Putnam before he began to improve on this land in dispute, about this 36 acre piece. I told him I had bought the land, and when I had bought it; I told him I had bought it from Martin Nichols. This was before I had cut any timber on the land. I think I had two or three conversations with Mr. Putnam about this land. There was talk of its being vacant land. Mr. Putnam got me to go to Harrisburg with him to see about it, and we found' that it was not vacant land. When I found it was not vacant land I considered that the land belonged to me, unless we found a better title for it, since I had bought it and paid for it. I did not know but a better title might be found for it, as I did not know how it was at that time; I didn’t know but that it had been sold with my other property at sheriff’s sale, ■and if Mr. Putnam could get a good title for it, I would sooner that he would have it than anybody else — that is, if he could get a better title than anybody else had. I had not at that time examined to see whether it had been mortgaged and sold or not. The mortgage of which I speak had been given to William A. Wallace. That mortgage was foreclosed and the mortgaged land sold by the sheriff; Mr. Putnam told me afterwards that he had gone to a great deal of trouble to find the Coxe heirs; the heirs of the man who had owned the land, and had consummated the purchase from them. Mr. Putnam said that the title he had got was another title from the one I had got. He said he had now a good title. They were about commencing there on this 36 acre piece at this time. Samuel Filbert, of Williams-port, and John E. Putnam, were the first persons who seemed to exercise authority on this property.</p> <p>This is a portion of the testimony of Mr. Tyler. You will remember the whole of the deposition, both of Mr. Tyler and Mr. Putnam. You will notice that there is no irreconcilable difference in the statements of Putnam and Tyler, as to just what was said, and what was done. Of course, if there be .such a difference, it is for you to determine, but we do not notice any irreconcilable difference in their statements. Tyler apparently did not know that the 36 acres, consequently the two lots in dispute, were not included in his mortgage to Wallace, which passed under the sheriff’s sale to Dill; he did not discover that it was not included in that mortgage until 1879 or 1880. He says himself, and it may here in the evidence be taken as an undisputed fact, that at the time Putnam was seeking to get title to the land, and during the time he (Putnam) was making improvements, Tyler did not know that he was the owner of the land. [That he did not know he was the ■owner of the land may be taken from the statements of both parties as an undisputed fact. He did not expressly say to Putnam that he was not the owner, and so far as the evidence .shows, he did not say he was the owner. His conduct throughout was that of a man who had no claim on the land.</p> <p>The undisputed evidence shows that he was innocent in so acting. There is nothing to show that he was guilty of intentional concealment in so acting, and it shows that he was innocent of any intention to wrong Putnam. He was ignorant of his own rights, as he states, until 1879 or 1880.]8 Even if he was ignorant of his own rights, and guilty of no intentional wrong towards Putnam, if Putnam was led to believe that he was not the owner of the land, it would estop him or his grantee from now setting up a claim against Putnam. Putnam had a right to assume that Tyler knew what land he owned, and if, relying upon the fact that Tyler did not claim to own it, he purchased another title and made improvements, the plaintiff could not recover. It was the fault of Tyler that he did not know he owned the land, and he ought to have known whether it was or was not included within the boupdaries of the mortgage.</p> <p>Now the defendants allege that their conduct in buying the Coxe title, and erecting the improvements was based entirely upop. the supposition that Tyler had no right to the land, a supposition that was brought about by Tyler’s conduct. Plaintiff replies, that the defendant was not misled by anything that Tyler did; that he (defendant) knew Tyler once owned the land, and from the undisputed evidence had cut timber from it. tie (defendant) supposed with Tyler that the title had passed to Dill under the sheriff’s sale. They first went to Harrisburg, expecting to find the title still in the commonwealth', but discovered that it was patented, and then Putnam, instead of being misled by anything that Tyler said, or going to Dill, who was the purchaser pnder the mortgage, to inquire, declared his intention of consulting counsel to “ look the matter up.” And in pursuance of this determination he went, not to Dill, to whom the conversation and acts of Tyler would have led him to go, and who might be supposed by both Tyler and Putnam to be the owner of the title, but to the devisees of one Wm. Coxe, and secured from them an independent outstanding title, as he supposed, took possession and made these improvements, believing that he had secured a better title than ever Tyler had, and consequently a better title than Dill, who had got the title that Tyler had; intending to set it up, and hold the land against all the world. This is what plaintiff alleges in reply.</p> <p>Now if Putnam was not misled by anything said by Tyler, or anything done by him, then the plaintiff is not estopped by the mere fact that Tyler really owned the title. If, because of his ignorance of that fact, he failed to disclose it to Putnam, we say she is not estopped if he (defendant) was not misled by Tyler.</p> <p>[What does the weight of the evidence show you was the motive in Putnam’s conduct which led him to purchase the outstanding title ? Was it the conduct of Tyler which led him to believe that he (Tyler) did not own the land, or, after the return from Harrisburg, was it the consultation with his counsel that led him to believe that the Coxe title was the valid title ? That it was superior to the Tyler title, and if he purchased it, it would prevail against the Tyler title and against all other titles?]9 If he was misled by the conduct of Tyler to his (Putnam's) injury, if his (Putnam’s) conduct and actions afterwards, can be accounted for and are accounted for by and under the evidence on the theory that Tyler misled him by his failure to. disclose a fact which he ought to have known, then plaintiff would be estopped, and could not recover. [On the other-hand, if anything said or done by Tyler resulted in no injury to Putnam; if he acted with the belief that he was buying a better title than Tyler had, one that he could set up against the Tyler title, or any other title in purchasing the Coxe title, and took possession, intending to assert his right of possession under that title, then Putnam was not misled by anything Tyler said, and the plaintiff would not be estopped.]10</p> <p>It is just as you find the weight of the evidence in these particulars that turns your verdict for the plaintiff or defendants. Did Tyler mislead Putnam, or did Putnam buy the Coxe title, independent of anything that Tyler had said or done, intending to assert a superior or better title, as he believed, and hold the land? If he did, then Tyler’s acts and silence did not hurt him. If, however, he acted on whatever Tyler said or did, then he was misled, and that by the man who ought to have had the knowledge and given him (Putnam) notice of it, and the plaintiff is estopped.</p> <p>As to the treasurer’s deed, we instruct you that the evidence on that point fails to show a valid and substantial outstanding title superior to the title the plaintiff claims.</p> <p>The defendants have submitted the following propositions:</p> <p>1. If the land on which the dwelling houses of Scates and Putnam are built is .part of the hundred acres of unseated land of tract No. 4897 which was sold to Ebenezer Hewitt by Alexander Irwin, treasurer in 1828, then under the evidence in this case the plaintiff has no title and for that reason cannot recover.</p> <p>Answer: We do not think that is the law, gentlemen, and deny this point. The evidence is not sufficient to pass the land under the alleged tax sale to Hewitt.1</p> <p>2. Even if the plaintiff’s title were otherwise good, still if David Tyler gave Putman to understand that he (Tyler) did not own this ground, and Putman then acting in good faith for himself and Scates purchased title to it from those whom they supposed to be the owners, and then had expensive dwelling houses put up on these lots, and the said Tyler all the while saw the buildings go up, and encouraged by his presence and conduct the making of said improvements, and during that time gave no notice that he objected to their erection, or that the land belonged to him, then under such circumstances neither David Tyler, nor his daughter, the present plaintiff, would be entitled to recover the improvements and ground on which they stand, and your verdict should be for defendants in ■such case.</p> <p>Answer: This point is affirmed if, as we have already in■structed you, Putman relying on and acting on a belief induced by the conduct of Tyler, purchased an outstanding title, and made his improvements; but if, however, he acted in the belief that he was purchasing a title superior to and better than the Tyler title, and his subsequent conduct was on the faith of that title so purchased, he was not misled by Tyler.8</p> <p>3. Especially is this the law when the lot without the improvements is worth very little, perhaps not as much as five dollars, while the improvements put on each lot amount to hundreds or thousands of dollars.</p> <p>Answer: As to this point, we do not see that it is important in the view we have taken of the law, and therefore we do not affirm it.3</p> <p>4. The ignorance of David Tyler of his own title or rights would not excuse him. He was presumed to know his own property, and if by his own acts, or by his acquiescence and silence when he ought to have spoken, the defendants were misled, he cannot take advantage of the error which was induced by his own conduct.</p> <p>Answer: This point is affirmed. If the conduct of Tyler misled the defendant his ignorance would be no excuse for it; if he did not mislead the defendant then there would be no estoppel.</p> <p>The verdict of the jury was in favor of the plaintiff, and judgment being entered thereon, the defendant took this writ, .assigning for error:</p> <p>1. The answer to the defendants’ point.1</p> <p>2. The answer to the defendants’ second point.8</p> <p>3. The answer to the defendants’ third point.3</p> <p>4-6. The parts of the charge embraced in [ ] 4 to 6</p> <p>7. The part'of the charge embraced in [</p> <p>8. The part of the charge embraced in [ ]8</p> <p>9. The part of the charge embraced in [ ]9</p> <p>10. The part of the charge embraced in [ ]10</p> <p>11. The charge as a whole was erroneous and calculated to-mislead the jury to the prejudice of the defendants.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE BEDEORD COUNTY.</p> <p>No. 205 January Term 1887, Sup. Ct.; court below, No. 826 April Term 1886, C. P.</p> <p>The proceeding was a feigned issue ordered under the interpleader act, wherein Henry P. Diehl, Elmira Daugherty, Wm. Snell, Levi Smith et al. were plaintiffs, and Calton L. Bretz, and B. E. Mann, administrator of David F. Mann, deceased, were defendants. The issue was amended on April 26, 1886, so that the question to be tried by the jury was whether or not the right of property to 56 barrels of flour in barrels, 108 fourth barrels in sacks, 2 tons bran and ton mixed chop, levied on by the sheriff by virtue of a certain fieri facias in favor of Calton L. Bretz against Wm. D. Newman and another in favor of David F. Mann against the same defendant, as the property of said Wm.- D. Newman, “ was and still is in them, the above named plaintiffs, who are all the parties who had grain in store in said mill when the said flour in dispute was ground.”</p> <p>At the trial on November 25, 1886, it appeared that in 1885 William D. Newman, the defendant in the executions, was operating a steam flour mill in Bedford, at which mill, the plaintiffs in the issue had delivered wheat from time to time.</p> <p>The court below, William J. Baer, P. J., charged the jury as follows:</p> <p>The defendants in this case were judgment creditors of William D. Newman, a miller operating a mill in this town; and they caused executions to be issued; and the sheriff levied on 80 or 90 barrels of flour and some bran, the property in controversy in this issue. The plaintiffs thereupon laid claim to this flour and bran, alleging that they were the product of wheat which they had severally delivered and deposited with Newman, the miller, as their bailee; and they gave notice of their claims to the sheriff......</p> <p>What is this transaction ? In nearly every case the seireral plaintiffs have produced a receipt which was given by the miller at the time the wheat was put there, or at the time the last of it was put there. Those receipts are substantially the same in each case. The following is one of them:—</p> <p>Crystal Mills, Bedford, Aug. 18th, 1885.</p> <p>Received of Henry Shoemaker twenty-seven bushels and forty-eight pounds of wheat for the use of H. Shoemaker.</p> <p>[Signed] William D. Newman.</p> <p>It is alleged on the part of claimants, the plaintiffs, that they, from time to time, delivered to Newman at his mill certain quantities of wheat and took receipts therefor; that it was put there for their own use ; that it was to be ground out from time to time into flour, as they severally might order, or held subject to their orders, with the right in themselves to sell the same, or an equal quantity, from the common mass in which the wheat of the customers had been placed. And the plaintiffs further allege that Newman, with their knowledge, ground wheat out of this commingled mass and disposed of the product: and that becoming involved, executions were issued and levies made on the flour and bran in the mill, which they alleged were the product of wheat which had been put in this commingled mass, of which their wheat was part, it having been put in the same common receptacle; and they claim the flour and bran as the product of wheat from that mass. But the defendants allege that, though the wheat claimed to have been delivered by the plaintiffs was delivered, it was, with their knowledge and consent, mingled by putting it into a common receptacle; and that the plaintiffs did not and could not expect to get back the same wheat which they had put there, or the product of the same wheat, but only its equivalent. Their position is that the plaintiffs were not entitled to demand and receive their own wheat or its product, or wheat from the mass stored there, or the product of the same; but that the miller might, at his option, return to them other wheat, or the flour of other wheat.</p> <p>The plaintiffs allege that the transaction detailed to you is a bailment; and hence the property and dominion never passed to Newman. The defendants allege that the transaction was a sale; and therefore the property and dominion passed to Newman, and he could sell it at his pleasure, and, in his hands, it was liable for his debts. We say to you that, if the dominion of the property absolutely passed to Newman, then the defendants, they being judgment creditors of Newman, could levy •on and sell the property. The facts are for your consideration. We can only define to you what is bailment and explain the law; you must then on the evidence and the law as we give it, ■decide the case. The great question in this case is whether or not the transaction between the miller and the plaintiffs was .a bailment. If it was a bailment, if the wheat was delivered to be held for the use of the plaintiffs, then the plaintiffs can recover; if it was not, then they cannot.</p> <p>A great deal has been said as to whether the flour found in the mill and levied on was the product of some particular person's wheat, or the product of the wheat of the commingled mass, or of some other wheat; the learned counsel on the one .side alleging that it was not made from the identical wheat •deposited there by these plaintiffs at all; while on the other hand it was alleged that it was so made, or at least that some of the identical wheat must have entered into it. We say to you that under the law as we lay it down to you the only question relating to the source of the flour and bran is, was it the product of wheat ground from the commingled mass ? The •evidence seems to indicate that it was: You must determine, however; because if it was ground from other wheat that never went into that common receiving bin or pit, then the conclusion is plain that the plaintiffs cannot recover.</p> <p>From all the evidence it is manifest that neither the miller nor anybody else could, with certainty, say whether any, and if any, how much, of the plaintiffs’ wheat entered into this flour and bran in controversy; because of the fact of its having been so commingled, the flour and bran having been made from wheat taken from the receptacle in which the plaintiffs as well as others, had deposited their wheat. It may be possible that •some grains of the plaintiffs’ wheat entered into this flour. Of that you are as well able to judge as the court. [The question for you to determine, however, under the law as we lay it down, is, was this flour and bran made from wheat from the •commingled mass, after the wheat of these plaintiffs became part of the mass ?]11</p> <p>If some of the plaintiffs had wheat in the hands of Newman and others had not, by reason of having got theirs all back again, and you would find that- the transaction was a bailment, then for such as have shown that they had wheat in the mass at the time of the levy and before the flour was ground, you can find a verdict. Such verdict would not be dollars and cents, but generally for the plaintiffs, if you find, as the evidence shows, that the amount of wheat that should have been in store was more than the amount that still remained there; otherwise this form of verdict would not do, but it could be framed as a verdict for all the plaintiffs except those not proven to have had any deposit of wheat in the mill at the time the levy was made or the flour was ground. You will have to find, therefore, who are named as plaintiffs here that have not proven that they had wheat there. A list of their names can be handed to you. It is not a matter about which there is any controversy.</p> <p>It has been said, and not denied by counsel on the other side, that when the identical thing delivered is to be returned, though in an altered form, such contract is one of bailment. To illustrate, where John Jones takes a bag of wheat to the mill to be ground into flour, the transaction is a bailment. He expects to get the flour from that bag of wheat, and he continues to be the owner of the wheat- or its product. If it be destroyed by the burning of the mill, it is his loss and not the miller’s; or if the sheriff come with an execution and levy upon it as the property of the miller, he cannot sell it. But where there is no obligation to return the specific article, but the receiver is at liberty to return another thing, he contracting at the time to make the return, the transaction is a sale and not a bailment; as when John Jones delivers twenty bushels of wheat to a miller and agrees to take from him, at some other time, twenty bushels of other wheat in return, or the flour and bran of twenty bushels of other wheat. This transaction is not a bailment, but a sale, and the property passes to the miller; and, in case the mill should burn, the loss would be his, and an execution creditor could levy upon it as the miller’s property. You will notice the distinction: In one case the title remains in John Jones because he put his wheat there to be ground, with the expectation that the product of the particular wheat would be returned to him. In the other case the wheat passed to the miller because Jones delivered the twenty bushels to him with the expectation and understanding that he would get back some other wheat, or the flour of some other wheat; and this latter transaction is a sale.</p> <p>It has been held that where one takes wheat to a mill to be ground into flour, the contract is not a sale but a bailment; and the property in the flour is in the person who deposits the wheat, although it be, with his knowledge, mingled with wheat belonging to the miller. You will see that this case does not turn simply on the question whether the wheat was mingled or not; [but where one takes wheat to a mill and, with his consent, it is put into a common mass with the wheat of other customers, with the understanding that he shall not get the same wheat back, but other wheat from the commingled mass, or flour or other product from the same mass, this, too, would be a bailment, not a sale; and this would be so even with the knowledge of the depositor that some of the miller’s wheat was also mingled with his and that of the other customers. In such case the property remains in the depositors and the transaction is a bailment.]18 But we go further; if the wheat of the customers was all thrown into the same sink or bin along with wheat belonging to Newman, with the understanding that the customers could not demand and receive back the identical wheat, nor wheat from the identical mass that they commingled there, nor the flour or product of, the identical wheat, nor the product of the identical mass, but that they could get an equal quantity of wheat, or the product of an equal quantity of wheat in return; and that the miller, from time to time at pleasure, could sell the depositors’ flour, the product of the wheat, for his own use, this would be an irregular deposit and would pass the property in the wheat and its product to Newman, the miller, as effectually as a sale; and the plaintiffs, in such case, could not recover. The difference between the two sets of cases is that in one the wheat is deposited with knowledge on the part of the depositors that it is being commingled and the manner of the commingling, and that is all. In the other it is likewise deposited with knowledge on the part of the depositors that it is being commingled and 1 dw it is being; commingled; but, in addition to this, dominion has been given to the miller to dispose of it at pleasure, in the expectation on the part of the depositors that they can, in the future, get other wheat in return, or the product of other wheat. The difference is that in one case dominion over the deposit has been given to dispose of it at pleasure and return other wheat or the product of other wheat; and this constitutes a sale. In the other case no dominion was given, but the miller was to return the wheat or its product from the commingled mass, which would be a bailment. By keeping these distinctions in view, you will be able to get along in the case.</p> <p>Something was said about the parties becoming tenants in common by having deposited their wheat in the bin along with wheat belonging to the miller. Where parties put wheat in a common receptacle along with wheat belonging to the miller, they become tenants in common of the mass and it belongs to them all jointly; but even in such a case, Newman as miller, would still be a bailee, and would acquire no greater interest in the wheat than if they had deposited the same separately for the use of the depositors. A miller must use due diligence and care, as we have already said, in holding wheat deposited in his mill, and return it or its product on demand; and should he sell or dispose of it whether stored with his own or not, though he would become a co-tenant in one sense, yet, if you should find that part of the transaction was that the miller had absolute dominion over the wheat and could grind or sell it at pleasure, with an understanding that the depositors could only get from him in return an equal quantity of wheat or the flour and bran of an equal quantity of wheat, in such a case the miller would not be a bailee.</p> <p>This, with the points that are to be answered, raises all that is necessary in this case.</p> <p>Plaintiffs’ points:</p> <p>1. That if the jury believe that the plaintiffs from time to time delivered to Newman, at his mill, certain quantities of wheat and took receipts therefor, which stated that it was delivered for their own use, or the use of some other person;' that it was to be ground from time to time into flour, as they severally might order, or held subject to any order they might give therefor, with the right in themselves to sell the same at any time; and that the plaintiffs confused and commingled their wheat by having it put into the same bin, sink, or heap; and that Newman ground wheat from the commingled mass in the sink or heap into flour; and when the execution issued against Newman the whole amount put there by the plaintiffs was no longer on hand but the flour and bran now in dispute were; and that they are the product of wheat from the same sink or heap into which some portion of the plaintiffs’, which still continued to be, no matter how much of it, yet remained; then as to such of the plaintiffs as the jury find have shown a balance of wheat in the mill, such as they can trace into the common mass .from which the flour was made, the verdict should be for the plaintiffs.</p> <p>Answer: This point is affirmed, unless the jury find from the evidence that the miller, Newman, by the nature of the transaction with the several plaintiffs, had such dominion over the wheat as authorized him at his pleasure, not only to grind the wheat into flour but also to sell the same for his own use. In which event the transaction would not be a bailment but a .sale, and the point is refused.1</p> <p>2. That under the facts and circumstances set forth in the first point, as to the manner in which this wheat was deposited with Newman, at his mill, such a transaction constitutes in law a bailment; and if Newman, without the knowledge of these plaintiffs, commingled his own wheat with that of the plaintiffs, he and all the depositors, as to the wheat in store, became tenants in common; and if Newman used more than he had deposited or placed in the common mass and the remaining wheat in the mass from which the flour was ground, not being sufficient at the time it was being ground to meet the demands of depositors, this flour, the product of said wheat, belonged to the plaintiffs, and the verdict should be for them.</p> <p>Answer: The facts alleged by the first point, if so found, if there is no evidence to satisfy you that Newman had dominion over the wheat to grind and sell its product, constitutes a bailment, and if the transaction is found to have been a bailment the verdict should be for the plaintiffs.8</p> <p>8. That the act of Newman buying wheat as his own and mingling the same with that of these depositors, the claimants, can in no way affect their rights to the common mass of which they were tenants in common, if the wheat was so placed in said common mass by Newman and used by him without their consent.</p> <p>Answer: Affirmed.3</p> <p>4. That when grains of different persons are thrown together on a heap or pile for storage as in this case, they are undistinguishable because of their nature; and the law gives each owner an interest in the bulk proportionate to his part thrown in; and, under the form of the present issue, it is not material whether the identical grains deposited by all the plaintiffs be shown. It is sufficient if, under the contract of bailment with Newman, they establish a right of property to the wheat, or the product thereof, which Newman kept, or was bound to keep in the mill subject to their orders.</p> <p>Answer: If the jury find the transaction a bailment and not a sale, we affirm this point.4</p> <p>Defendants’ points:</p> <p>1. That in this case the burden of proof is on the plaintiffs to show that they were the owners of the property in dispute; and if the plaintiffs have failed to show by a preponderance of testimony, that the property levied upon was theirs, the verdict should be for defendants.</p> <p>Answer: Affirmed.</p> <p>2. That if the plaintiffs have failed to show that all of the plaintiffs named in this case have an interest in the property in suit, then there can be no recovery in this action by the plaintiffs.</p> <p>Answer: Refused.5</p> <p>8. If the - jury should find that there were other parties than the plaintiffs who had grain in the mill out of which the flour in suit, or part of it, might have been made, then the plaintiffs have not made out such a case as will entitle them to recover, and the verdict must be for the defendants.</p> <p>Answer: Refused.6</p> <p>4. That as the testimony shows that flour was constantly being manufactured out of wheat as it was placed in the mill, or from a common pile; and as the plaintiffs in this case have not shown that the flour levied on was made out of their wheat, but of wheat so commingled, they cannot recover, and the verdict must be for the defendants.</p> <p>Answer: Refused.17</p> <p>5. That as the plaintiffs have not shown that they were to get the identical grain placed in the mill by them, or to get the product of their identical wheat, but to reserve the right to sell it to Newman, or to give orders for flour or get flour themselves in exchange therefor; and as they have shown that their grain went into the common pile, where it would be ground, this constituted a sale and not a bailment; and the verdict must be for the defendants.</p> <p>Answer: Refused. The facts stated in this point, if found, would constitute a bailment. If the jury find that in ease the plaintiffs after commingling, had sold, and that the miller was bound to deliver to the buyer wheat from the same commingled mass, or that orders given by them for flour had to be filled from flour made of the same commingled mass, or that any flour they would order, or were to have in exchange for the wheat, was to have been made from wheat taken from the same mass; in such case there could be a recovery. But, if the jury find the facts to be, that in case the plaintiffs after their wheat was mingled, could sell and that the miller was at liberty to and could at his pleasure comply with the sale, by delivering any other wheat of equal quality and not from the commingled mass; or, that any orders they might give for flour, or any flour they could get or were to have in exchange, could by the miller, at his own pleasure, be made from any other wheat he had and not necessarily from the comingled mass; such a transaction would not be a bailment, but an irregular deposit, partaking of the nature of a sale and there could be no recovery.8</p> <p>6. That if the jury believe that the plaintiffs put their grain in the mill separately and not jointly, and at different times, which, with their knowledge, went into a common pile with the grain of other customers and with grain that Newman purchased, and was ground by him at his pleasure, and that said grain was placed there with the understanding that said parties could receive the equivalent in grain out of the common mass, or flour manufactured out of the grain in the mass, then said contracts between the plaintiffs and Newman were sales, and not bailments; and the verdict must be for the defendants.</p> <p>Answer: In the opinion of the court, though the jury should find all the facts as stated in this point, this alone, under all the evidence in the case would not constitute the transaction a sale and warrant a verdict for- the defendants. But if -in addition to all the facts stated, the jury should also find that Newman could at his own pleasure, sell and dispose of the flour and other products of the wheat for his own use, then the transaction, by the dominion over the same being given to Newman, would be a sale, and in such an event the verdict should be for the defendants.9</p> <p>7. That under all the evidence in this case, the verdict must be for the defendants.</p> <p>Answer: Refused.10</p> <p>• The verdict of the jury was for the plaintiffs in the issue and, judgment being entered, the defendants took this writ, assigning for error:</p> <p>1-4. The answers to the plaintiffs’ points.110 4</p> <p>5-10. The answers to the defendants’ points.51010</p> <p>11, 12. The parts of the charge embraced in [ ] 11 19</p> <p>IB. In not instructing the jury that as to the bran in suit, the plaintiffs could in no event recover.</p>

<p>1. Where, upon an agreement between them, A. and B. have placed in the hands of C. each a certain sum, and C. was to contribute a like sum, . the fund created to be wholly for the benefit of D. then in ignorance of the arrangement, and the control of it entirely relinquished by the contributors, D. may sustain an action in Ms own name against C. to enforce payment of the fund to him.</p> <p>2. Trusts which are not affected by the statute of limitations are only those technical and continuing trusts over which chancery has exclusive jurisdiction; and where a fund has been received to be paid to a particular person or to be applied to a particular purpose, an action by the beneficiary to enforce payment or application is within the operation of the statute.</p> <p>3. To toll the bar of the statute, a promise to pay must be unequivocal and absolute, an acknowledgment, clear and definite and consistent with such a promise, and in either case made to the owner of the right of action or to his agent in that behalf.</p> <p>4. Where an action is brought by a beneficiary to recover a fund created by contributions for his benefit, a promise or acknowledgment made to a contributor not the agent of the plaintiff is of no effect against the bar of the statute.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE YORK COUNTY.</p> <p>No. 366 January Term 1887, Sup. Ct.; court below, No. 42 April Term 1884, C. P.</p> <p>This was an action on tbe case brought on March 6, 1884, by Thomas Holland against the Northern Central Ry. Co., to recover damages for injuries to his property on Water street in the borough of York. The defendant pleaded, not guilty, not guilty with leave to justify.</p> <p>At the trial on October 11, 1886, the facts appeared: The York & Maryland Line R. Co. was incorporated by the act of March 14,1832, P. L. 122, with power given in § 12 of said act to locate a route beginning at the north line of the borough of York and extending southwardly to a point on the Maryland line, “ so as to do the least damage to private property, and the said road shall not be more than four rods wide.” By a supplementary act of April 15, 1853, P. L. 450, this company was authorized to lay down an additional track,, between the Maryland line and the borough of York, to improve their present track and their road-bed, to change its location, etc., etc. By the act of May 3, 1854, P. L. 537, the legislature authorized the consolidation of the York & Maryland Line R. Co., the York & Cumberland R. Co. and the Susquehanna R. Co., so as to form and constitute one corporation, to be known as the Northern Central Ry. Co., under which act an organization was effected. By the fourth paragraph of § 1 of this consolidating act, it is declared that the said consolidated company shall be subject to the provisions of the general railroad act of February 19, 1849, P. L. 79, by § 20 of which act it is provided: “That if any company incorporated as aforesaid, shall at any time misuse or abuse any of the privileges granted by this act or by the special act of incorporation, the legislature may revoke all and singular the rights and privileges so granted to such company; and the legislature hereby reserves the power to resume, alter or amend any charter granted under this act, and take for public use any road constructed in pursuance of such charter.”</p> <p>The plaintiff offered to put in evidence the deeds referred to in the charge of the court to show title, to be followed by the testimony of himself and of other witnesses that at the time of his said purchase and for a long period prior, the triangular piece of ground lying between the said premises and South Water street had upon it a pavement of brick, extending from the front line of said premises to and upon said highway — a continuation of the pavement or sidewalk — also a porch with steps leading from said sidewalk to the front door of plaintiff’s said dwelling house; a cellar door and cellar-way; also a gate-way and gate leading to the yard of said premises from said sidewalk and pavement; that in the front wall of said house were the said front door, two windows on the first floor, three windows on the second floor, and three windows on the third floor, all opening over and upon said triangular piece of ground. That the said pavement or sidewalk, front door, porch, gate-way, and cellar door and cellar-way, were the only means of access and approach from said highway to said dwelling house and premises. That through said windows were, at the time of his said purchase and for a long time before, and up to the time of the injury complained of, admitted freely and uninterruptedly, air and light over the said triangular piece of ground into the said dwelling. That the said easements of access, passage, light and air, afforded to plaintiff’s premises by, through and over said triangular piece of ground, by said windows, doors, porch, gate-way, and cellar door and way, were at the time of plaintiff’s purchase and for a long time before of a public, notorious, apparent and continuous character and imposed upon said triangular piece of ground for the benefit of said dwelling house and premises so purchased by plaintiff by a prior and common owner of both the said premises.</p> <p>That on or about the 15th of August, 1888, the defendant, without the consent of the town council of the borough of York, and without legal authority, entered upon said triangular piece of ground, and cut away and removed part of the plaintiff’s porch and cellar-way, and laid a new railroad track upon said triangular piece of ground and upon said highway about seven feet nearer to said plaintiff’s dwelling house than the old track; that thereby the access and approach to the dwelling house of plaintiff is rendered difficult and dangerous, and at times by the passage of south-bound trains impassable. That trains running south pass within twelve to fifteen inches of the corner of the warehouse adjoining plaintiff’s property on said public highway, and within about nineteen inches of plaintiff’s gate-way, and within about four inches of plaintiff’s porch, and within an average of about three feet of the front of plaintiff’s dwelling house: That by reason of the closer proximity of passing trains to the plaintiff’s house since the laying of said new track, the walls of plaintiff’s dwelling have been shaken and cracked, his house filled with smoke, cinders and noisome smells necessitating the closing of his said front windows, and thus depriving him of light and air: To be followed by proof showing how much said property has been depreciated in value by the laying of said new track and the causes aforesaid: This for the purpose of having the amount of the injury to plaintiff determined by the jury in damages.</p> <p>The offer was objected to, inter alia, because:</p> <p>6. The defendant was incorporated by consolidation of other companies in 1854, the other companies having all been incorporated prior to 1854. That one of the companies consolidated, to-wit: The York and Maryland Line Railway Company, was incorporated in 1832, and that under its charter the road was built through Water street, and the width of railroad fixed at four rods in front of properly which plaintiff alleges" he owns. That the present railroad is not beyond or outside of said four rods. That defendant being liable only under its charter, accepted before the adoption of the present constitution, to the payment of damages for land actually taken and not having accepted the present constitution and no part of the plaintiff’s land being taken, or alleged to be taken, the alleged evidence is not legal and proper evidence in this case.</p> <p>7. The alleged facts if they show any cause of action sustain trespass and not an action on the case and are therefore not -legal or proper evidence in this case.</p> <p>The objections were overruled and, under exception taken, evidence was introduced sustaining the offer.8</p> <p>The court, John Gibson, P. J., charged the jury and answered the points presented, after quoting the incorporating acts referred to, and also § 8, article XVI., of the constitution, as follows:</p> <p>‘ In reference to this act, I say tins, in as near as possible the language of Mr. Justice Gordon, in the ease of the Penn. R. Co. v. Duncan, 111 Pa. 352: “ This corporation therefore cannot claim exemption from this constitutional legislation, and from the nature of the charter it must necessarily come under the provisions of the new organic law. The defendant’s charter must be regarded in the light of a contract, and is in all particulars inviolable unless in the charter itself, or in some general or special law, subject to which it was taken, there is a power reserved to the general assembly to alter or amend, and, as in that case, the legislature might intervene to modify the charter of a corporation, so might the constitutional convention.”</p> <p>How does this action arise? The Northern Central Railway Company had the right to use one of the streets of the borough of York, and to locate their road upon it, and that authority included sidings and switches, and if such are located in one place, they have a right when necessity requires, to place them elsewhere. And there is conferred by the act of 1853, the power to construct a double track.</p> <p>In one case the Supreme Court said: “If in the spirit of accommodation the company was willing for the time being to confine itself to the south side of the street, it did not thereby strip itself of the power of going north when it found it necessary to lengthen the curve of its side track, in order to reach its shop and yards in safety: ” C. & P. R. Co. v. Spear, 56 Pa. 335.</p> <p>The complaint in this case is that the company brought their rails so near to the property of the plaintiff as not only to be disagreeable, but dangerous; that they have taken his pavements, and destroyed his easements, the right to free and easy access to and from his house, and in supplying his house with provisions and coal, and the annoyance occasioned by the passing of trains, inconveniences of noise, and volumes of smoke, dust and cinders; that he can have no enjoyment of his porch, or of the front of the house the windows of which must be kept almost constantly closed; that the track came so close that cars came to within from four to six inches of his porch, and that at the corner of the adjoining lot of Mr. Croll, a man could not pass while a train was passing, without danger to his life, and thus there was risk of life. All these inconveniences have been detailed to you by the witnesses. I must say to you that for such consequential injuries, a common law action will now lie, being occasioned by the construction, operation and works of a railroad. The question however, gentlemen of the jury, in this case, is not whether or not the Northern Central Railway Company, in the exercise of its rights, in the use of the street, occasioned the annoyances complained of by the construction of their double track; the question of • liability in this case arises from peculiar circumstances. It is not the use of the street alone, but of a portion of a lot of ground, fronting upon that street, which is the foundation of the claim of this plaintiff.</p> <p>The railroad enters Water street in the borough of York, some distance north of Market street, and after passing Market street it approaches Mason alley, or avenue; there the track curves, as appears by the evidence of persons, and by the drafts; and on that curve it leaves Water street at or about Mason alley, and the curve begins just before reaching the premises of the plaintiff. It is in passing by the premises of the plaintiff, that it leaves the line of Water street. The front of the plaintiff’s house is not on the line of Water street, but faces that street at an angle. His house and the adjoining house on the south are at an angle described by the witnesses, of about two feet on the northern end of the plaintiff’s house, and thirteen feet at the other end of the house. And the same angle extends along Mr. Smyser’s house adjoining, the track at that place making a reverse curve gradually going south towards Baltimore. Before the construction of this double track, the main track of the road was nine feet and eight inches from the plaintiff’s porch. By the construction of a double track, the inner rails are within four feet two inches of his porch.</p> <p>The peculiar situation of this house and of the railroad track there is caused in this way: The two houses, that is, that of the plaintiff and that of Mr. Smyser, originally faced Water street, and were on the street line. Such was their situation when the deed was made by the heirs of John Barnitz, and George Barnitz, both deceased, to Edward Chapin, Esq., on December 30, 1862.</p> <p>On the 31st of March, 1863, Mr. Chapin made a declaration of trust under his hand and seal, that the said property was bought and paid for by the Northern Central Railway Company, and that he held the legal title in trust for the said railway company. While this was the position of the title, the railway company cut away the front of the house, as described to you by the witnesses, and removed the pavement on Water street, to the front of the houses, and replaced the same there with curbstones, and crossed the triangle of ground, and constructed a switch, part of which was owned by them, and part by Tyler & Croll, merchants, having a warehouse on Water street, north of Mr. Holland’s house.</p> <p>The railroad company thus holding the equitable title, the legal title being in Mr. Chapin, for their convenient use, he on the 21st day of March, 1866, sold and conveyed by deed of that date, to John S. Croll, two contiguous lots of ground, one of them being described thus : “ Bounded on the east by the railroad, in South Water street,” and in another place, “The line on Water street, thirty-three feet nine inches.” It is a part of these premises that constitutes the locus in quo. The other lot conveyed to Mr Croll was north, adjoining this one. At this time the front of the house now occupied by the plaintiff, was set back as described at an angle. But the deed described the lot conveyed to Croll, as above stated, to the line on Water street, and bounded on the east by the railroad in Water street.</p> <p>John S. Croll and wife, by deed dated April 9th, 1867, conveyed to Sarah Jane Buckingham what is described in the deed, as all that certain brick dwelling house, and part of a lot or piece of ground, situate on the west side of South Water street, and the railroad in the borough of York aforesaid, and then it is described by metes and bounds, and the line running eastward, is described as follows: “ Thence eastwardly along the said Zachariah W. Smyser’s property, to the southeastern front corner of the present brick house hereby conveyed, on said Water street or railroad, and thence along the present front wall, in a northerly direction, thirty-seven feet four inches to the place of beginning.</p> <p>The title of this house was conveyed to William Hay, Esq., and by him and wife to F. F. Buckingham, and by John Mayer, assignee of F. F. Buckingham to Thomas Holland, this plaintiff, with the same description in the deed. Thus the title to the dwelling house and the lot to the north and west of it was conveyed to the plaintiff, but there was no conveyance of the space in front of the house, between it and the Water street line.</p> <p>As a matter of course the right of ingress and egress to the house or premises conveyed, passed with the deed, so far as Mr. Croll could convey the same. There was a right of way of a convenient character, the enjoyment of light and air, and that free and pure, so far as it was in the power of Mr. Croll to convey the same. Now then comes the difficulty. Did the railroad company convey to Mr. Croll, all the rights they themselves possessed, all thé property they possessed to the line of Water street ? The deed of Mr. Chapin contains no reservations. There was conveyed to Mr. Croll a lot of ground, bounded on the east by the railroad and South Water street, the line on Water street thirty-three feet and four inches. Owning therefore the title to the triangle of ground in front of Mr. Holland’s house, Mr. Croll conveyed necessarily all the easements proper to Mr. Holland, for the convenient use of his dwelling house, and lot conveyed to him by Croll. What were the rights then of the railroad company? If Mr. Holland negligently bought with another owner in front of hiiq, the railroad company were equally negligent, in the assertion of their rights, in the opinion of the court. It is said that because the railroad company had a switch on that ground they had also an easement or right of way. To that extent they had; but where was that switch; how many feet from Mr. Holland’s house ? I don’t know that the exact distance of that switch has been proven, but you can remember from the testimony, what was said in regard to it. This they were entitled to; and they would also be i; entitled to a track replacing that switch, but what other rights had they ?</p> <p>The street, Water street, had been widened by themselves and they owned it — the railroad company. Did that give them the right to use it as though it were a street of the borough, by reason of any title they had had to it ? I think not. The only right remaining to them, was the right to construct a double track if they so determined. And as the space used by them, that is the space created by setting back the front of these houses, was open, and not covered by buildings, and had been occupied already by a switch, and as Mr. Holland had a deed only for the line of his house, if the construction of a double track required the use of that ground, I think they could take it for that purpose. But in doing so, although it was the construction of a double track, if it could be done only by injuring private property, they are liable for that injury, because they had allowed the title to pass from them, and it was therefore the same as an original taking. In fact it appears from the principle of the case of Penn. R. R. Co. v. Jones, 50 Pa. 413, that independently of the constitutional provision, an action on the case would lie, for interruption or disturbance of an easement, when the company had purchased the land, held a secret trust, the title being in an individual, who sold the same to Mr. Croll, and that grantee not conveying that part of the lot called the triangle, but leaving the same open as a street, with pavement and curbstone, and full enjoyment of easements of ingress and egress and light and air, without reservation of any kind, and then summarily taking the use of that ground, and removing the curbstones and pavement and part of the house, subjecting it to the inconvenience complained of. I say that with all this, .on either ground, in my opinion, they are liable to this action on the case, for interruption of easements and for consequential damages arising therefrom, and for the inconvenience and annoyances of the noise and smoke, and cinders, and dangers to ingress and egress from proximity under the circumstances of this case, as elements of damage, in the depreciation of the value of the property. But in all such cases the damages are measured in this way: [The jury must ascertain what the property would have sold for, unaffected by the occupation of it by the railroad, and what it would have sold for as affected by that occupation. It is the depreciation- in value, if any, of the property resulting from this occupation by the railroad, that is the measure of damages.]1 The advantages and disadvantages are to be taken into consideration. But there have heen no advantages testified to in tins case. The whole question is, has the plaintiff’s property been injured ?</p> <p>How it has been injured you will determine from the evidence, and from the elements of damage mentioned, and the amount of damage is to be estimated by the difference in value as stated. That is, the injuries, if you find them to be such, are what are called elements of damage, but the damage itself is to be measured by the testimony of witnesses, as to the value of the property before and the value of the property after the occupation of it by the railroad. From what the testimony may be, you are to determine as best you can what is the amount of damage if you find that there is any.....</p> <p>The court is requested to charge for the plaintiff:</p> <p>3. The Northern Central Railway Company is liable to answer in damages to the plaintiff for any injury done to his property by the construction or enlargement of its railroad, to the extent that said property was depreciated in its market value by reason of such construction or enlargement of its railroad.</p> <p>And if in the laying of a second track in August, 1883, by the defendant, the jury find that the property of Thomas Holland was injured and depreciated in market value by reason thereof, they shall allow him damages to the extent of such depreciation.</p> <p>Answer: This point is affirmed as explained in the general charge.1</p> <p>The court is requested to charge for the defendant:</p> <p>1. That the defendant has the charter authority to acquire a right of way four rods in width.</p> <p>Answer: This point is not applicable to this case in the opinion of the court.8</p> <p>2. That in cases where the defendant has, pursuant to its charter authority, acquired a width of right of way, not exceeding four rods, and constructed its. railroad thereupon, any subsequent increase of the number of tracks not exceeding two, or shifting of the tracks from one part to the other of such right of way, is neither an act done in construction or enlargement of its works, and from any damages resulting there- . from to adjoining owners, there is no liability, constitutional or otherwise.</p> <p>Answer: This point is refused.3</p> <p>3. That the deed to Chapin dated December 30,1862, in connection with the declaration of trust made by him, under date of March 31, 1863, had the effect of vesting the title, at least as against the plaintiff in the present action, in the said defendant as right of way to the portion of the lot in front of plaintiff’s premises embraced in the aforesaid deed to Chapin, and declaration of trust, and not conveyed by Chapin to those under whom plaintiff claims; no part of said portion being a distance of more than thirty-three feet from the centre line of the tracks of the defendant, laid when such right of way was acquired, and the laying of additional tracks or shifting of the original tracks within such right of way, is not such construction or enlargement of the works of defendant as would entitle the plaintiff to recover damages.</p> <p>Answer: This point is refused.4</p> <p>4. That the act of the defendant in procuring title, by virtue of Chapin’s purchase and declaration of' trust, and evidencing the boundary line of its right of way by shifting the front wall of the houses had the effect of defining as the western boundary of its right of way, the line of the houses so shifted, and the right of way or ingress to said houses if existing, constituted at most, an easement or right of passage over said right of way, concurrent and not inconsistent with the uses of defendant, for its corporate purposes, and the verdict must be for the defendant.</p> <p>Answer: This point is refused.5</p> <p>6. That the defendant being liable only under its charter, accepted before the adoption of the present constitution, to the payment of land actually taken, and not having accepted the present constitution and no part of the plaintiff’s land having been taken, the plaintiff is without remedy, and the verdict should be in favor of the defendant.</p> <p>Answer: This point is refused.6</p> <p>7. If the defendant in any event is liable for damages, a special statutory-remedy having been provided for its recovery* namely, by the appointment and assessment of viewers, such remedy is exclusive, and the present form of action cannot be sustained.</p> <p>Answer: This point is refused.7</p> <p>The verdict of the jury was in favor of the plaintiff for $1,013.75, and judgment being entered thereon, the defendant company took this writ, assigning for error :</p> <p>1. The affirmance of plaintiff’s third point.1</p> <p>2-7. The refusal of the defendant’s points.8*07</p> <p>8. The admission of plaintiff’s offer.®</p>

<p>FROM THE DECREE OF THE COURT OF COMMON PLEAS OF MIFFLIN COUNTY.</p> <p>On the distribution in the court below of the proceeds of a sheriff’s sale of the real estate of W. R. Graham, a contest arose between D. E. Robeson and R. H. Myers, mortgage creditors. Two of the tracts were known, one the Hale tract, the other the Decatur tract. The Hale tract was conveyed to Graham April 1, 1864; the Decatur tract, August 26, 1875. .</p> <p>At the time of the sheriff’s sale, the Hale tract was subject to the lien of a purchase money mortgage, called here, for clearness, the Hale mortgage; certain judgments in favor of S. S. Woods’ executor, and certain mortgages in favor of the Lewistown Building, Savings Fund and Loan Association, assigned to D. E. Robeson, called here the Robeson mortgages.</p> <p>The judgments of Woods’ executor had been revived after the purchase of the Decatur tract, and this tract at the time of said sale was subject to the lien of said judgments and of a mortgage to the Mifflin County Building, Savings Fund and Loan Association, assigned to R. H. Myers, called here, for clearness, the Myers mortgage.</p> <p>The liens in the order of their priority at the distribution, as found by the auditor, Mr. J. S. Rakerd, in amount were as follows:</p> <p>Upon the Hale tract, its proceeds being $8,810.00</p> <p>Hale purchase money mortgage, $989.87</p> <p>Woods’ executor’s judgment,1 . 940.34</p> <p>Woods’ executors’ judgment,8 . . 379.28</p> <p>Robeson mortgage,3 ..... 373.62</p> <p>Robeson mortgage,4...... 480.96</p> <p>Robeson mortgage,5 ..... 300.00</p> <p>Robeson mortgage,6 ...... 590.00</p> <p>Upon the Decatur tract, its proceeds being $1,080.00</p> <p>Woods’ executor’s judgment,1 . . $940.34</p> <p>Woods’ executor’s judgment,8 . . 379.28</p> <p>Myers mortgage,7...... 632.91</p> <p>The auditor so finding, reported:</p> <p>A. Reed, Esq., appearing for D. E. Robeson, Esq., trustee holding the mortgages of the Lewistown Building, Savings Fund and Loan Association on the Hale tract, claimed that the judgments of Woods’ executor . . . . which have priority of lien on the Hale tract to the said mortgages, should be first appropriated to from the fund arising from the Decatur tract, because they were also the first lien on the said Decatur tract, and the Decatur tract was acquired after the Hale tract. The Loan Association mortgages were executed and entered on record from June 1, 1872, to May 25, 1875. The Woods judgments were liens prior to these mortgages. The Decatur township tract was acquired, Aug. 26, 1875. The Woods judgments by revival became a lien thereon Dec. 27,1875. March 14, 1876, Wm. R> Graham mortgaged the Decatur township tract to the Mifflin County Budding, Savings Fund and Loan Association, which mortgage was assigned to R. H. Myers. At the time the mortgages were taken on the Hale tract the mortgagees knew of the existence of the Woods judgments. In order to continue the hen on the Hale tract the judgments were revived and the revival made them a hen on the Decatur township tract. It is claimed that because the Woods judgments are a hen on both tracts that they must be paid out of the proceeds of the tract on which they last became a hen.</p> <p>This principle would work injustice to the mortgage creditor on the Decatur township tract. Your auditor is of the opinion that no principle of law or equity would support such a basis of distribution, and he is of opinion that distribution should be made to the Woods judgments after the payment of the Hale mortgage out of the proceeds of the sale of the Hale tract for such portions of said judgments as remain unpaid from the proceeds of the Decatur township tract after the payment of the Myers. mortgage on the Decatur township tract, and on this principle the fund arising from the Decatur township tract and the Hale tract are distributed.</p> <p>The distribution reported by the auditor was as follows:</p> <p>Proceeds of Hale tract .... $3,810.00</p> <p>To share of costs of sale and audit . $207.66</p> <p>Hale purchase money mortgage . 989.87</p> <p>Woods’ executor’s judgment,1 bal. 653.67</p> <p>Woods’ executor’s judgment,8 bal. 263.74</p> <p>Robeson mortgage,3 ..... 373.62</p> <p>Robeson mortgage,4 ...... 480.96</p> <p>Robeson mortgage,5 ..... 300.00</p> <p>Robeson mortgage,6 on account . . 540.48 3,810.00</p> <p>Proceeds of Decatur tract $1,080.00</p> <p>To share of costs of sale and audit . $ 44.88</p> <p>Myers mortgage7 . ■..... 632.91</p> <p>Woods’ executor’s judgment,1 on account,......... 286.67</p> <p>Woods’ executor’s judgment,3 on account,......... 115.54 1,080.00</p> <p>To this report, D. E. Robeson filed exceptions, (1) that the auditor erred in not distributing the fund arising from the Decatur tract to the Woods’ executor’s judgments, they being the first liens on the same; (2) the mortgages of the except-ant being first given have a higher equity than those given afterwards.</p> <p>On argument of these exceptions, the court, J. C. Bttcheb, P. J., confirmed the distribution recommended by the auditor, delivering the following opinion:</p> <p>It is complained that the auditor should have appropriated the fund arising from the sale of the Decatur farm to the mortgages of the Lewistown Building, Savings Fund and Loan Association instead of to the mortgage of the Mifflin County B uilding, Savings Fund and Loan Association now for the use of R. H. Myers.</p> <p>As to the appropriation made by the auditor to which complaint is made, the contention is that the Woods judgments .....which were the second liens on the Hale farm, and the first liens on the Decatur farm, having two funds for payment, whilst the Lewistown Building, Savings Fund and Loan Association mortgages had but one, that the Woods judgments must be paid out of the Decatur farm, so that the Lewistown Building, Savings Fund and Loan Association mortgages would not be disappointed. But the Mifflin County Building, Savings Fund and Loan Association, for the use of ' R. H. Myers, had a mortgage on the Decatur farm for $632.91, which was the second lien on the Decatur farm, and that association had just the same equity to drive the Woods judgments back to the Hale farm so that it would not be disappointed, and thus the equities are in equilibrio, and there is nothing to induce the law to interfere. In point of fact, however, the auditor did what he could for the Lewistown Building, Savings Fund and Loan Association mortgages, by using as much of tbe Decatur farm proceeds as would pay tbe Mifflin County Building, Savings Fund and Loan Association mortgage, and then applying tbe balance to the Woods judgments. Thus be applied $286.67 plus $115.54, or $402.21 to tbe latter judgments, tbe entire claim of tbe Woods judgments being-$1,319.62, thus paying nearly one third of the Woods judgments out of tbe Decatur farm. It does not lie, therefore, in tbe mouth of tbe Lewistown Building, Savings Fund and Loan Association mortgages to complain that, after what has been done for them, tbe auditor refused to disappoint tbe Mifflin County Building, Savings Fund and Loan Association mortgage for tbe benefit of tbe former. Tbe parties in interest bad their positions on tbe record, and equity could do nothing for them without working injury to others equally meritorious. Tbe rule is “ that subrogation is never allowed 0where tbe equity of tbe party seeking it is no stronger than tbe equity of tbe party affected by it: ” Knouf’s App., 91 Pa. 78; McGinnis’s App., 16 1Pa. 445-9; Hoff’s App., 84 Pa. 40; Lloyd v. Galbraith, 32 Pa. 103. Subrogation, says Justice Sergeant in Ziegler v. Long, 2 W. 205, must be employed like all other rules of equity to tbe attainment of justice; it is not to be used to overthrow tbe equity of another person, and thus work injustice.</p> <p>Tbe exceptant thereupon took this writ, assigning for error tbe dismissal of bis exceptions and tbe order confirming tbe distribution recommended by tbe auditor.</p>

<p>EB.U.QT?. TO THE COURT OF QUARTER SESSIONS OF WARREN COUNTY.</p> <p>No. 50 July Term 1887, Sup. Ct.; court below, No. 20 March. Term 1886, Q. S.</p> <p>Upon a presentment of the grand jury of Warren county, an indictment was found at March Term 1886, against the Pennsylvania Railroad Company, said indictment containing two counts; the first, charging the defendant with a public nuisance in obstructing a public highway, and the second, with neglecting to construct a new road upon the most favorable location, as required by.statute.</p> <p>At the trial on March 8,1887, it was shown that at June Term 1833, a public road, a portion of -which runs along the south bank of the Allegheny river, east of Warren, in Mead township, was finally confirmed and ordered to be opened to the width of 50 feet. At the point at which the railroad was afterwards constructed, the road was not actually cleared until about 1840 or 1841, when it was chopped out and from that time worked as much as the travel required.</p> <p>The Sunbury & Erie R. Co. was incorporated by act of April 3, 1837, P. L. 170, § 14 of which juovided:</p> <p>The said railroad shall be so constructed as not to impede or obstruct the free use and passage of any public road or roads which may cross or enter the same; in all cases where the said railroad may cross, or in any manner interfere with any existing public road, canal, or slackwater navigation, the said company shall make or cause to be made, as soon as conveniently may be, a good and sufficient causeway or causeways, bridge or bridges, to enable all persons passing or traveling such public road, canal, or slackwater navigation, to cross and pass said railroad, which bridge, or causeway or causeways, shall be made and maintained by said company, and the sufficiency of the same shall be judged by the supervisor or supervisors of the proper township; and if the company shall neglect or refuse to keep such causeway or causeways in good repair, ’they shall be liable to a penalty of ten dollars, for every day the same shall be so neglected or refused to be repaired, to be recovered by the supervisors of the township, with costs, for the use of'the township, as debts of like amount are by law recoverable, and shall, moreover, be liable to all actions at the suit of any person who may be aggrieved thereby.</p> <p>By § 5 of the supplementary act of March 27, 1852, P. L. 186, it wás provided:</p> <p>That if said railroad' company shall find it necessary to change the site of any portion of any turnpike, or public road, they shall cause the same to be reconstructed forthwith, at their own proper expense, on the most favorable location, and in as perfect a manner as the original road; provided, that the damages incurred in changing the location of any road, authorized by this section, shall be ascertained and paid by said company, in the same manner as is provided for in regard to the location and construction of their own road.</p> <p>And see § 7, act of May 8, 1854, P. L. 647.</p> <p>In 1859 and 1860, there was a traveled track in said public highway, about 18 or 20 feet'wide along the bank of the river, with room enough between the track and the river for four or five sticks of timber laid side by side. On the south side of the road was the hillside, which was partly within the 50 feet right of way; but there was room for teams to pass and for ditches, without working the bank down, though this could easily be done if the travel should at any time require a widening of the traveled track.</p> <p>In 1860, the said railroad company took and occupied a portion of the public road next the hillside at the point mentioned, for a distance of about 400 feet in length, constructing a retaining wall within the right of way of the public road and in part within the traveled track. Within this wall, upon an embankment 40 or 50 feet high, was placed the road-bed of the railroad. After the construction of the embankment and wall, there was left a strip of level ground, part of the original right of way of the road between the wall and the river, varying in width from 14 to 20 feet. No new road was ever constructed, and the public travel has been confined to the narrow passage between the wall and the river.</p> <p>In arranging for the construction of this retaining wall and embankment, the engineers of the railroad company met the road commissioners of the township on the ground; Mr. Rogers, one of said commissioners, called them together: “Mr. Behring (the engineer) projected a plan by which we were to change part of the road and build a retaining wall to keep the embankment from encroaching on the road, and they assented to it; Mr. Rogers was to see that the work was carried out according to the plan ; we did not deviate from it; I met him often; he used to go over the work every day more or less; we often met him in that vicinity, and the work was finished in accordance with that plan, and the wall was placed where I had marked it out at the time.”</p> <p>j By the act of March 7, 1861, P. L. 94, inter alia, the name '¡of the said railroad company was changed to the “ Philadelphia '& Erie Railroad Co.,” and in January, 1862, before the completion of the railroad or the opening of it for travel, the latter company, under the authority of certain acts of assembly recited, leased for the term of 999 years to the Pennsylvania Railroad Co., the whole road, “located, in part constructed, and now being constructed, and to be constructed, and completed from its terminus at Sunbury, in Northumberland county, in the state of Pennsylvania, to its terminus at the harbor of Erie, in the state of Pennsylvania, with all the lands, railways, lines, bridges, fences, rights of way, depots, stations, water stations, station houses, machine shops, and all other buildings, improvements and appurtenances, of every nature whatsoever, held, owned, or which may at any time hereafter be acquired, by said party of the first part, for the purpose of operating and maintaining their said railroad, or for constructing or extending the same, or for the use thereof;” and the defendant company has operated said railroad since it was opened for travel in 1864. There was evidence tending to show that the wall and embankment had been allowed to slip down into the strip of road still left along the river, rendering the passage-way narrower than it was when they were constructed.</p> <p>The court, William D. jBkdwn, P. J., affirmed a point presented by the defendant company and charged the jury, in accordance therewith, that under the evidence and pleadings there could be no conviction of the defendant of the offences charged in the indictment. After verdict and judgment in favor of the defendant, upon the allocatur of this court the commonwealth took this writ, assigning the said instruction as error.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE CHESTER COUNTY.</p> <p>No. 92 January Term 1886, Sup. Ct.; court below, No. 82 April Term 1884, C. P.</p> <p>In the court below, Irwin J. Brower brought an action on the case against the county of Chester, to recover damages to his property alleged to .have been caused by the erection of a county bridge on the line of'Gay street, in Phosnixville. The defendant pleaded, not guilty.</p> <p>Gay street is a regularly established and traveled street in the borough of Phoenixville, laid out by juries appointed by the Court of Quarter Sessions in 1865 and 1872, the damages for opening then assessed and paid and the street opened to the width of forty-four feet. Irwin J. Brower is the owner of a house and lot of land on Gay street, his property line extending along Gay street towards French creek, a distance of sixty feet. In 1882, legal proceedings were instituted for the erection of a county bridge over French creek along the line of Gay street, resulting in the building by the county of an iron bridge with stone abutments and piers, which was opened for travel on March 8, 1884. The approach or abutment of the bridge at the southern end, on Gay street, is of solid masonry, thirty-one feet in width, occupying the centre of the street and extending along the same a distance of one hundred and sixty feet, five inches, and in front of the property of Mr. Brower. The approach, in front of the plaintiff’s property, is nine feet six inches in average width, and is about, seven feet distant from the property line. At this point, the street can no longer be used except for travel on foot, the travel now passing over the approach and upon the bridge, which at the abutment is about fourteen feet above the level of the street.</p> <p>At the trial on January 6, 1885, the foregoing facts appeared, when the court, J. Smith Futhey, P. J., charged the jury and answered the points presented as follows:— ,</p> <p>.... The plaintiff alleges that Ms property has been injured by reason of the erection of tins wall on the public street, and claims that he is entitled to recover damages for the injury he has sustained. In answer to tMs claim, the defendant contends, firstly, that as matter of law, the plaintiff is not entitled to recover damages for any injury he has sustained, because such injury is consequential M its character, and damages of that character cannot be recovered against a county; and, secondly, that as matter of fact no such damages have-been sustained. In regard to the first defence, that a county is not liable for consequential damages, the court will reserve its decision for future deternfination, if the result of the jury’s deliberations shall render it necessary.</p> <p>The second question I submit to .you, namely: whether the plaintiff has sustained any damage by the erection and maintenance of tMs approach to the bridge upon the street in front of his property. In determining tMs question, you will follow the rule laid down by the Supreme Court, and ascertain what was the reasonable market value of the property before the bridge was erected, takmg the street and all the surroundings as they were, and then determine its reasonable market value after the bridge was erected, the difference between the two values, if there is any, being the measure of damages. . . .</p> <p>You will, therefore, take the case and ascertain, under the evidence, the amount of damage, it any, the plaintiff’s property has sustained by reason of the erection of this bridge, and render your verdict accordingly.</p> <p>I have been requested by the defendant to instruct you upon certain points. The first, second, fourth and sixth points raise the question as to the liability of the county of Chester for the payment of consequential damages, and are as follows, namely:</p> <p>1. The plaintiff is not entitled to recover in the present form of action.1</p> <p>2. The county of Chester is not liable for consequential damages arising from the location and erection of the approaches of a county bridge upon the public street of an incorporated borough.3</p> <p>4. Under the evidence the verdict should be for the defendant.?</p> <p>6. The damages, if any, sustained in this case, being purely consequential, the county of Chester is not liable.4</p> <p>These points are reserved.</p> <p>3. The measure of damages, if any, is the difference in the market value of the plaintiff’s property immediately before the erection of the Gay street bridge and its value immediately afterwards as affected by the bridge.</p> <p>This point is affirmed.</p> <p>5. The plaintiff cannot recover in this action damages sustained by the taking of the pavement in front of his property on Gay street, nor for inconvenience of access to Ms stable.</p> <p>In reference to the first part of tMs point, I understand from the evidence that this bridge was erected upon the ground set apart and used as the street, and that, therefore, the damages alleged to have been sustained by the plaintiff are consequential in their character. It also appears that the pavement forms part of the public street. The plaintiff, therefore, would not be entitled to damages by reason of the taking of the ground, but if by reason of the erection of the bridge on the public street, the property has been injured, under the instruction I have already given you, he would be entitled to recover damages...... If you find the plaintiff entitled to damages, he is entitled to interest from the time the damage accrued, when the bridge was completed, to the present time. — ■</p> <p>Upon this charge, the jury found a verdict for the plaintiff for |650. The questions reserved having been argued the court filed an opinion, which after stating the facts proceeded :</p> <p>The court, on the trial, reserved the question raised by defendant’s points, whether a county is liable in an action for consequential damages, and submitted the question of fact to the jury, whether the plaintiff had sustained such damages, and, if so, to ascertain the amount. The jury have found in his favor, and the question reserved is now presented for decision.</p> <p>It is conceded, that before the adoption of the constitution of 1874, such an action for consequential damages could not be maintained: Struthers v. Dunkirk Railway Co., 87 Pa. 284; Malone v. City of Philadelphia, 12 W. N. 396. That constitution, however, provides, article XVI., § 8, that “ municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed, by the. construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury, or destruction.” Under this provision it has been held that the corporations named in the act, and individuals, are liable to damages for injuries done to real estate, which are consequential in their character, and where the land injured has not been entered upon: City of Reading v. Althouse, 93 Pa. 400; Pusey v. City of Allegheny, 98 Pa. 522.</p> <p>Is a county liable to such damages ? Counties have authority to erect county bridges, and are charged with their erection and maintenance, and also with their re-erection when required. If in so doing they change the grade of the highway on which they erect the bridge, by making embankments thereon, or erecting walls, which, while made necessary by the erection of the bridge, do injury to houses and lands abutting thereon, we are of opinion they are hable for the injury thus done.</p> <p>Municipal corporations, under the constitution of 1874, are liable for consequential damages done by the grading of streets. Any municipality which has authority over highways is a municipal corporation within the meaning of the constitution. If such municipality in the construction or enlargement of its highways injures property, it comes within the express provision of the constitution, that it “ shall make just compensation for property taken, injured, or destroyed.” Counties have authority over the highways so far as the construction and maintenance of county bridges thereon is concerned. The damages done by the opening of highways are assessed and paid at the time of such opening. If, in the subsequent erection of a county bridge, not authorized when the road was opened, property is injured, the county must make “just compensation ” therefor.</p> <p>The legislature having made no provision for the assessment of damages for injuries thus done, the county is liable to a common law action: Miller v. Penn. R. Co., Common Pleas of Chester county.</p> <p>The defendant’s points reserved by the court are disaffirmed, and judgment directed to be entered on the verdict on the payment of the verdict fee.</p> <p>Judgment having been entered on the verdict, the defendant then took this writ, assigning as error:</p> <p>1-4. The ruling upon the defendant’s points.1404</p>