Volume 125 — Pennsylvania State Reports

<p>EROM THE DECREE 03? THE ORPHANS’ COURT 03? BERKS COUNTY.</p> <p>No. 114 January Term 1888, Sup. Ct.</p> <p>On May 6, 1886, the first account of Jacob Holl and John G. Mohn, executors of the will of William Harbster, deceased, was filed, showing a balance for distribution of $108,913.05. The only item upon the debit side of the account was charged as of date August 4,1885, “ To amount due estate realized from sale of decedent’s interest in the Reading Hardware Company, which sum is exclusive of certain moneys retained by said company to cover certain contingencies which cannot be determined at present, $135,000.” Credits were claimed, inter alia, for accountants’ compensation, $6,750; for cash paid attorney for “ professional services to decedent in Ms lifetime and to executors,” $2,500.</p> <p>On May 20, 1886, Ellen Harbster, widow, and Maggie Harbster, a daughter and legatee, filed the following exceptions to the-said account.</p> <p>“1. The accountants have charged themselves with more money than has actually come into their hands, this for the purpose of. laying ground for the charging of excessive com- ■ missions and counsel fees.</p> <p>“ 2. -The accountants ask credit for the payment of claims against the estate which are excessive and were wrongfully paid.</p> <p>“ 3. The accountants ask credit for $2,500, cash paid J. H. Jacobs, Esq., professional services, etc., which amount is grossly excessive and out of all proportion to the services rendered.</p> <p>“ 4. The accountants’ charges of $6,750 for compensation, is excessive and unreasonable.”</p> <p>On the hearing of the exceptions before the auditing judge, it was made to appear that the Reading Hardware Company was composed of W. M. Griscom, Matthan Harbster, H. C. England and William Harbster, the deceased; that on March 21, 1885, the several partners executed an agreement under seal, entitled, a supplemental partnership agreement, which was as follows :</p> <p>“ The undersigned, members of ‘ The Reading Hardware Company,’ in order to provide against loss and inconvenience that might otherwise result from the death or withdrawal of any of the partners, hereby agree that upon the death or withdrawal of any of the partners the remaining or surviving members, and such other persons as they shall mutually agree to associate with them or any one or more of them, and in such proportions as they shall mutually agree, shall have the right to take the interest of such deceased or retiring member at the price or value at which the same stands upon the boobs of the firm, at the last annual taking of account of stock, to which shall be added the proportion of profits or deducted the share of losses for the current year : provided, however, such option shall be exercised and election made within thirty days from the decease or withdrawal of such member, and thereupon the interest of such member shall cease and determine, and by virtue hereof said interest in said firm, all firm property, real and personal, shall pass to and vest in such survivors or acceptors, subject, however, to the payment of the heirs and legal representatives of such deceased partners, or to the withdrawing partner if living, of one third of such valuation or price in cash, and one fifth of the balance annually thereafter, with interest on the sums then unpaid until the whole price is paid ; such payments to be satisfactorily secured by bond with securities, or otherwise, as may be agreed upon, and upon such payments being made and securities given, due legal and proper conveyances shall be executed and releases made and delivered by such withdrawing partner or the legal representatives of the deceased partner.”</p> <p>William Harbster died testate on June 16, 1885, leaving to survive him a widow, Ellen Harbster, six children, and two grandchildren, and bequeathing his estate to his widow and children in certain proportions. An election was made within the time limited, and a settlement concluded with the surviving partners on July 21, 1885, under the terms of the supplemental agreement quoted. The sum accounted for included the value of decedent’s interest on January 1, 1885, with the accrued profits to the date of settlement.</p> <p>After the testimony was closed, the exceptants on November 13, 1886, asked to have the accountants surcharged “ with the amount of profits to which the estate was entitled under the agreement of March 21, 1885, from July 21, 1885, to January 1, 1886, amounting to $5,338.57</p> <p>And interest to June 15, 1886, 146.80</p> <p>$5,485.37</p> <p>On February 11,1887, the auditing judge, Schwabtz, P. J., filed the following decision :</p> <p>The exception filed November 13, 1886, was in time. It seeks to have the accountants surcharged with the sum of $5,485.37. This is because it is contended they have made an improper settlement with The Reading Hardware Company, under the supplemental partnership agreement made March 21, 1855, by the members composing said company, viz.: William M. Griscom, Matthan Harbster, Henry O. England and William Harbster, the decedent. The sustainment of this exception depends upon the construction that.will be put upon said agreement. Its object was to provide for an adjustment and settlement of their company affairs in ease of the death or withdrawal of any of its members. No testimony was offered as to.the terms under which the parties entered into the copartnership. Such being the case, the court takes it for granted that the contract was between the living without providing for a continuance of the business for the benefit of the estate of any of its members after his death. Partnership, unless otherwise agreed upon, terminates with the death of a member thereof. The above state of facts explains the object of the agreement.</p> <p>The evident intent of it was to save and protect the survivors, as well as the representatives of the dead, from vexatious and expensive lawsuits, by fixing the value of the interest of the deceased or withdrawing partner, and by affording the surviving or remaining members an opportunity to accept upon such agreed price, and to pay for it in the way prescribed by the agreement. The agreement also covenants that the survivors should elect within thirty days after the death or withdrawal of a member, to take or refuse to take under the agreement. They elected to accept the interest within the time stipulated. Their doing so necessarily terminated the copartnership so far as the decedent’s estate was concerned. His estate and the representatives thereof had no further interest in the concern. Their interest consisted in what his share was worth at the time his surviving partners elected to take the same under the agreement.</p> <p>In my opinion these supplemental articles were mainly intended for the protection of the survivors, and that it was at their option to accept or refuse the decedent’s interest on the terms and conditions specified in their said agreement. There is no question but that they notified the executors of their intention to accept under it. It is, however, equally true that during the process of settlement they, the survivors, insisted upon the payment of the claims in cash. I do not see any reason in the articles or covenants therein why they should not be allowed to pay the decedent’s interest in cash. This being so, it became the duty of the executors to seek for the best and safest and most remunerative investment for their cestuis que trust. The surviving partners having shown that they had an offer of a loan sufficiently large to pay their indebtedness at the rate of interest of five per cent per annum, free of taxation, and it being a fact that the funds in the hands of guardians, trustees, etc., are to a very large extent loaned under the order of the court at five per cent in this county, and all for the reason that money cannot be safely and securely invested here at a higher rate of interest, I find that the executors acted for the best interest of the estate. Under the agreement they were compelled to take the value of the decedent’s share in cash. They invested, under the order of the court, the trust funds at a higher rate of interest- than usual in the county. The evidence of G. B. Stevens, Esq., however, shows that Ellen Harbster, the widow, Maggie Harbster and Howard E. Harbster, two of the children and legatees, agreed to this settlement. This exception -was filed after the testimony was fully heard, under the theory and impression that the evidence adduced fully sustained it. I am of opinion there is no testimony to sustain this exception. Hence the same is dismissed.</p> <p>The first exception to the account complains that the accountants charged themselves with more money than they had actually received, “ for the sake of charging commission and counsel fees.” The debt side of the account has no charges on account of the advancements, nor any items of specific legacies, nor legacies in specie. It complains that the accountants charged themselves with more than they received for the estate; This exception is an anomalous one. Under it except-ants’ counsel seemingly contend that debtors 'should have ignored the executors, and settled their indebtedness with the legatees; this, in order to deprive the executors of thier commissions and their counsel of his fees. The plain letter of the law militates against such a course and such doctrine. Executors and administrators have always been appointed to settle decedents’ estates. It is their duty, and has always been, to collect the assets, to convert the effects into cash and therewith to pay decedents’ debts, and the balance, if any, to the legatees as directed by the will, and in case of intestates, to the heirs under the intestate laws.</p> <p>As to the second exception it needs only to be remarked that the accountants had proper vouchers for all credits claimed in their account, and that no evidence was offered showing improper payments by them. Hence it is disallowed.</p> <p>The fourth exception objects to the compensation of accountants as excessive and unreasonable. The estate settled in this account amounts to $135,000. It shows that they paid out to liquidate debts, expenses incurred in settlement of estate, exclusive of accountants’ commissions and counsel fees, and in satisfaction of specific money legacies, sums amounting to $16,736.95. The commissions charged and complained of are $6,750. His property, in so far as the same is contained in this account, appears to have been invested in said hardware company, but whether, the entire amount was realized out of his partnership interest therein, or whether a part of it was a loan to the concern, is not disclosed by the testimony. This fund, except so much thereof as was required for the payment of debts and expenses, was kept continuously invested until paid to legatees, and re-invested in the name of the executors as trustees, for the use and benefit of such of the legatees as had only life interests in these legacies, with remainders over. It further appears that the executors made a careful examination of the inventory of tlie firm’s property and of the books and accounts of the concern, in order to get the full benefit for the decedent’s estate out of the affairs of the company under said agreement. In doing so they discovered several errors in the inventory, which materially enlarged and increased the assets of the estate. The accountants claim to have increased the property of the company by from §8,000 to §10,000, and testified to changes to about §8,000.</p> <p>The witnesses called on the part of the exceptants, on the contrary, testify that the increase did not exceed §8,000, and point out in what they consisted. The court, not deeming it to be of any consequence which of said witnesses were correct in their estimates, does not pass upon the credibility of their testimony. It was, however, conceded by all the witnesses that the accountants carefully examined into decedent’s interest in said copartnership, and they devoted considerable time to ascertain its exact condition and value. Under these circumstances, it is evident to the court that the executors constantly kept in view, whilst settling this estate, the interests of the decedent’s legatees. The court’s construction of the agreement being correct, every act of the accountants is commendable.- The accountants received from the hardware company §53,000 on August 4,1885. Of this they paid to Ellen Harbster §30,000, and to Maggie Harbster §8,500. The balance, §14,500, they appropriated towards the payment of debts, expenses and specific money legacies. On this same day the said sum of §8,500 was set apart for the use of each of the eestuis que trust in the hands of said hardware company. The executors afterwards, on July 2, 1886, loaned §50,500 to said hardware company, on bond secured by mortgage on company’s works, in trust for the use of their said eestuis que trust. This latter sum included the former sum of §8,500.</p> <p>In passing upon the commissions, the services rendered in investing the trust funds must be eliminated from the services of the accountants as executors. The trust estates are alone and severally liable for said services. The question here arises, what are reasonable commissions for the accountants for their services, risks and responsibilities in the settlement of this estate, under the facts and circumstances adduced ? The estate is a large one and required skill and attention. To reap its full value, personal knowledge and experience on the part of the executors were necessary. They had it. In fixing the amount of commissions the accountants are entitled to, the court should and will be guided by the decisions on similar facts and circumstances. Accountants’ counsel cited Davis’s Appeal, 100 Pa. 201. He contended that said case ruled this, and that under its rulings the accountants here were deserving the entire commissions charged by them. Exceptants’ counsel cited Montgomery's Appeal, 86 Pa. 230, and insisted that this case was ruled by it. These two cases appear to be very much alike in their nature and character. The services rendered by the accountants were about the same in each case. In Davis’s Appeal the assets aggregated $28,202.67, $25,000 of which were not converted, but remained in the form the executors received them. The court allowed him five per cent commission on the entire sum. In Montgomery’s Appeal, the estate amounted to $42,385.93. The credits claimed for payments made aggregated $2,552.95; $37,304 of the assets remained unconverted. In this case the court allowed the accountants a commission of $500 and the further sum of $200 on conversion of certain specific assets. If these two cases are fully and correctly reported, an ordinary mind is incapable to reconcile them with each other.</p> <p>Independent of these decisions, the books are full of adjudications on the question at issue, touching upon and treating in every conceivable point that may arise on accountants’ commissions under any state of facts. "Without comparing them with the one in question here, the matter will be disposed of under the general principles governing the subject. Accountants are usually allowed five per centage. Commissions are generally estimated by the size and nature of estates, by the trouble and risks incurred in converting them for distribution by liquidating and paying the debts against the estates, and in distributing the balance to the heirs and legatees. This having been a large estate, and the assets collected and prepared for distribution with less trouble, time - and annoyance than is commonly the case in estates of this proportion, a commission of five per cent is, in my opinion, rather high and should be reduced. Five thousand seven hundred and fifty dollars is a proper and suitable remuneration for tlieir services. This reduces the compensation $1,000, and. they will have to be surcharged with the same.</p> <p>The third exception objects to the credit taken of $2,500, for cash paid J. H. Jacobs, Esq., for professional services, etc., as being grossly excessive and out of all proportion to the services rendered. This credit is alleged to be for professional services rendered the decedent in his lifetime, and for the services to the executors in settling the estate.</p> <p>The evidence of James R. Kenney and H. P. Keiser, is that they have been with Jacobs in his office for a number of years; that William Harbster, the decedent, was a client of Jacobs during the latter years of his life ; that he supervised and dictated decedent’s will; that he did other business for him ; that he visited the office of Jacobs for the purpose of consulting him, and that he had frequent and lengthy consultations with him. They do not know whether or not Jacobs was paid for these services. Nor is there any other testimony showing payment. This testimony is somewhat indefinite in that it does not show any value or estimate for the services rendered. Under the circumstances it is, however, the best testimony that the nature of the case admits of. The services rendered by Jacobs to the accountants were valuable, and inquired considerable time and attention on his part. He directed the mode of settlement with the hardware company under their agreement with decedent, and construed the same. This was an important matter to the estate. Ilis counsel in the premises was the proper one, and conduced to the enhancement of it. Besides this there was considerable trouble connected .with the settlement of this estate, and the usual and ordinary labors connected with decedent’s estate. Mr. Jacobs is an attorney of twenty-three years standing in this county, of good repute with the court and bar thereof. He has a large and remunerative practice. As such, his charges would naturally be more than those beginners and young men just entering the profession. Judges throughout the commonwealth have usually refused to interfere with the fees of counsel for their professional services, under the plea that they were unable to estimate and value them, as they could the claims of other people. But inasmuch as Mr. Jacobs openly said in court, when this case was heard, that he would be satisfied with -what the court might allow him, and I, knowing that he meant what he said, will fix his fees for his services rendered to the estate, and the decedent while living, at the sum of §2,000. The estate will be surcharged §500 on that account.</p> <p>The foregoing adjudication having surcharged the accountants with the sum of §1,500, a distribution of the increased balance was ordered according to the terms of the will. Thereupon exceptions were filed on behalf of the accountants to the finding of the auditing judge that, whether a portion of the estate “ was a loan to the concern, is not disclosed by the testimony.” Exceptions were filed also on behalf of the widow and legatees, covering the following subjects :</p> <p>1. The refusal of the auditing judge to surcharge the accountants with the decedent’s share of the profits from July 21, 1885, to January 1, 1886, to wit, the sum of §5,338.56, and interest thereon.</p> <p>2. The allowance by the auditing judge to the accountants of §5,750, as compensation, and of §2,000, as counsel fees.</p> <p>On October 22,1887, the auditing judge filed a supplemental decision, sustaining the exception filed by the accountants, and finding that the fund for distribution arose wholly out of the decedent’s • partnership interest. The exceptions filed on the part of the legatees were then dismissed, and the distribution as reported confirmed. Thereupon the widow and others, legatees, took this appeal, and assigned the dismissal of their said exceptions and the> confirmation of the adjudication as error.</p>

<p>EROM THE DECREE OE THE COURT OE COMMON PLEAS OE BERKS COUNTY.</p> <p>No. 61 January Term 1889 Sup. Ct.; court below, No. 3 March Term 1888, E. D., C. P.</p> <p>On February 18, 1888, a fieri facias to No. 3 March Term 1888, E. D., was issued upon a judgment entered to No. 13 February Term 1888, in favor of Franklin Dengler against Chas. Buettner, for $300. The praecipe for the writ contained no special instructions to the sheriff, but on February 20,1888, acting under verbal instructions, the sheriff, levied “on the personal property of defendant, also on defendant’s right, title and interest in the personal property in the firm of Buettner & Stoneback, a schedule of which is hereto annexed.”</p> <p>On February 21,1888, a fieri facias to No. 7 March Term 1888, E. D., was issued upon a judgment entered to No. 17 February Term 1888, in favor of James Stoneback, for use of Nicholas Glaser, against Chas. Buettner for -$650. The praecipe for the writ contained a sj)ecial instruction to the sheriff to levy upon the defendant’s interest in the copartnership of Buettner & Stoneback, and on February 25, 1888, the sheriff levied “ on the right, title and interest in the personal property of the defendant, in the firm name of Buettner & Stoneback, subject to a former levy.”</p> <p>The sheriff returned the first of the above writs, No. 3 March Term 1888, E. D., as follows : “ February 22, 1888, part of personal projierty claimed by Catharine Buettner, and on March 1, 1888, sold the balance of the personal property for the sum of $203.45.”</p> <p>To the second of said writs, No. 7 March Term 1888, E. I)., the return was : “ Sold the personal property on March 1,1888, as per return on fieri facias No. 3 March Term 1888.”</p> <p>On August 2, 1888, a rale was granted to show cause why the amount realized under the said writs should not be paid into court, and why the same should not be paid to Nicholas Glaser, the use plaintiff in the second execution, on the ground that as the first execution did not follow the act of April 8, 1873, P. L. 65, it must be postponed in the distribution.</p> <p>On October 1, 1888, the rule having been argued, the court, Hagbxjiax, P. J., filed the following opinion and decree:</p> <p>On February 18, 1888, at the instance of Franklin Dengler, an execution in the ordinary form was issued against Charles Buettner, and placed in the sheriff’s hands. On February 21, 1888, at the instance of Nicholas Glaser, an execution was issued against said Charles Buettner under the act of assembly of April 8,1873. Tn the praecipe, the prothonotary was directed to issue the fieri facias, commanding the sheriff to levy upon the-interest of the defendant above named, of any personal, mixed or real property, right, claims, and credits in the business or partnership of Charles Buettner and James Stoneback, trading as Buettner & Stoneback, in the city of Reading. The fieri facias was made out in conformity with said act, and as per direction of the prascipe.</p> <p>The interest of Charles Buettner in the property or business of Buettner & Stoneback was sold by the sheriff on March 1st, and the sum of 1208.45 was realized. The levies were made in the order of time in which the executions came to hand. Prior to the act of 1873, the money realized would have gone to satisfy the Dengler execution, and so also it would now, if the Glaser execution had been issued in the ordinary form. Both executions being irregular, the proceeds would have to go to the one prior in time. But how in the present case ? The Dengler execution was irregular, the Glaser was regular.' To which must the money be applied? We answer, to the latter.</p> <p>The first section of the act of April 8, 1873, P. L. 65, provides : “ Whenever any judgment has been, or hereafter shall be, obtained against one or more members of a partnership, upon the individual indebtedness of such defendant or defendants, any such creditor may have execution fieri facias issue from the court where such judgment is entered, which shall command the sheriff or other officer to levy the sum of such judgment, with interest and costs, upon the interest of the defendant or defendants in said writ of any personal, mixed or real property, rights, claims, and credits in such partnership, and thereupon proceed and sell the same,” etc.</p> <p>It will be observed that the act provides for a special fieri facias to issue, to levy and sell the interest of a partner in a partnership firm. It directs how the sale shall be advertised and defines the effects of it. The mode of procedure, therefore, having been provided, it must be followed. The act of 1806, provides that “ in all cases where a remedy is provided or duty enjoined, or anything directed to be done by an act or acts of assembly of this commonwealth, the direction of said act shall be strictly pursued.” Numerous decisions have settled the law, that by force of this act, when a remedy is pointed out in an act of assembly it is exclusive of all others. As a special proceeding has been provided by the act of 1873, where the interest of a partner of a firm is sought to be levied on and sold, the mode pointed out by the act must be followed,- and it is exclusive of all others.</p> <p>We are not without authority: Hare v. Commonwealth, 92 Pa. 141. In that case an ordinary writ of fieri facias was issued. It contained no command to the sheriff to levy upon the interest of the defendant in a partnership of which he was a member. Subsequently, and while this writ was in the hands of the sheriff in full force and unexecuted, a second execution came into his hands. This was a special writ of fieri facias under the act of 1873, commanding the sheriff to levy upon the interest of the defendant in the partnership. The interest of the defendant was sold, and the proceeds were for distribution under a case stated.</p> <p>Justice Paxson in Ms opinion, says: “ The precise question for our determination, under the case stated, is whether it was the duty of the sheriff when informed by the special levy contained in execution No. 88 October Term 1875 (the second execution), of the interest of Lloyd in the firm referred to, to have levied upon said interest under the prior execution No. 55 September Term 1875 (the first execution); and, if so, whether such levy upon such prior writ, would have been entitled to priority of distribution. Eacb of these propositions must be answered in the negative. Since the passage of the act of 1873, the mode therein prescribed must be pursued. As writ No. 55 September Term 1875, did not conform to the act, the sheriff was under no duty to levy, upon the partnership interest under it, and if he had done so, upon distrilration it would have been postponed to the latter.” It may be said that Hare v. Commonwealth does not exactly decide the question before us, but the dictum of Justice Paxson squarely ruled it. He is too eminent a jurist to announce in an opinion, what is not law.</p> <p>And now, October 1,1888, the rule on the sheriff to pay the money into court, is made absolute, and the rule to decree to Nicholas Glaser $208.45, less the costs, is also made absolute.</p> <p>Thereupon Franklin Dengler took this appeal, specifying that the court erred in decreeing the fund to Nicholas Glaser, the second execution creditor.</p>

<p>FROM THE DECREE OE THE ORPHANS’ COURT OE BERKS COUNTY.</p> <p>No. 144 January Term 1889, Supt. Ct.</p> <p>On January 20, 1888, Esther Reber, executrix of Samuel Reber, deceased, filed her account showing a balance due the estate of 1769.33. The account was called for adjudication on March 5, 1888, when the following facts were made to appear:</p> <p>Samuel Reber died on May 10, 1886, leaving a widow, Esther, the executrix of his will, five children and a grandchild, the son of A. K. Reber, deceased. By his will dated January 30, 1883, he bequeathed all his estate to his widow for life ; after her death his grandson was to receive one dollar, and the balance was to go to his children. The will was admitted to probate with a codicil, the date of which was not given, but which provided as follows:</p> <p>“Whereas I have given a note for $600 to my son, A. K. Reber, now deceased, payable after my death ; my will is that the balance of the two notes I hold against my son, A. K. Reber, shall be deducted from the $600 note which I have given to him.”</p> <p>The note referred to in the foregoing codicil was as follows:</p> <p>“ I hereby acknowledge that is due from me, my heirs, executors, and administrators, to my son, A. K. Reber, six hundred dollars, for services rendered by him to me, after he attained the age of twenty-one years, and which services ho rendered under an agreement with me that he should be paid for the same. And I hereby bind myself, my heirs, executors, and administrators, to pay to him, the said A. K. Reber, the said sum of six hundred dollars, the said sum not to be demanded during my lifetime, but to be due and payable out of my estate immediately upon and after my decease, and this being the payment of a debt is not to he deducted from his share in my estate as one of my children.</p> <p>“Witness my hand and seal this day of April 20th, A. D. 1873.</p> <p>“ Samuel Rbbeii. [sbal.] ”</p> <p>The foregoing note being presented for allowance by the administratrix of A. K. Reber, deceased, objection to its payment in full was made by the accountant and legatee who then proved:</p> <p>That A. K. Reber died on April 26, 1879, insolvent, and indebted to his father, Samuel Reber, on two notes, one for $617.50, due April 1, 1878, and the other for $100 due October 20, 1878; that in the distribution of .the estate of A. K. Reber, deceased, by an auditor, the two notes had been presented and proved and dividends awarded to them of $295.18 and $76.93, respectively, leaving a total balance due thereon at the confirmation of the auditor’s report, on January 9,1883, of $498.57, which balance was claimed as a set-off against the amount due on Samuel Reber’s note above quoted.</p> <p>On April 21, 1888, the auditing judge, Schwabtz, P. J., filed an adjudication ruling that the testamentary provision cited was nugatory ; that the matter must be considered upon the contract rights of the parties, and proceeded:</p> <p>Under these facts, it is now contended for A. K. Reber’s estate that his said claim of $600, payable at Samuel Reber’s death, is now payable out of this estate, with interest from Samuel Reber’s death, amounting now to $672, and that the balance due on said two notes are barred by the statute of limitations.</p> <p>For the testator’s estate it is contended that the notes are not barred, but are a legal set-off against said claim. The payments thereon on settlement of A. K. Reber’s estate do not in any way keep said notes alive or stay the statute from running. It cannot be held to have been a re-assumption to pay the claims. An administrator cannot make such promise. The laws give power to marshal the assets and settle his estate, but never to revive or keep alive his debts.</p> <p>Could the executrix, upon suit being brought against her as representative of Samuel Reber’s estate, by A. II. Reber’s administratrix, for this claim in the Common Pleas, set off the balance due on these notes ? I think not, and if so, it cannot be done in this proceeding. This question will arise and be passed on in the further adjudication of A. K. Reber’s estate. The claim of $672 of A. II. Reber’s administratrix is allowed.</p> <p>A distribution having been ordered accordingly, the accountant and legatee filed various exceptions which on October 24, 1888, were dismissed and the adjudication confirmed absolutely. Thereupon the exceptant took this appeal, specifying that the auditing judge erred in decreeing that the balance due on the two notes of A. II. Reber could not be set off against the claim upon the bill single, because barred by the statute of limitations.</p>

<p>1. Whenever a highway is from any cause rendered so unsafe as to put the traveler upon it in peril, it is the duty of the township to do whatever is practicable and reasonable, under all the circumstances, to render it safe, and the facts in each case are to be submitted to the judgment and experience of the jury.</p> <p>2. It matters not whether the clanger arises from an imperfection in the road itself, from an excavation in it outside the traveled route, from the existence of a declivity or a stream of water at the roadside, or from a railroad upon which locomotives and trains are accustomed to pass; if the road is rendered a place of peril, the township is held to do whatever is reasonably practicable to avert the danger threatened.</p> <p>8. Where a township road ran for a distance parallel with aud immediately adjacent to a railroad, with no fence or barrier between them, and a traveler’s horse became unmanageable by fright at a passing train, and was struck by the train and killed, whether the place; was a place of peril and the township was negligent in failing to erect a fence or barrier, wore questions of fact, under all the circumstances, for the jury.</p> <p>4. la such ease, if the liability of the township for the injury is found, while the plaintiff is not entitled to interest, eo nomine, upon the amount of damages ascertained, yet 1 he jury may properly consider the time that has elapsed since the injury was received, in fixing upon the amount of the verdict they should return.*</p>

<p>FROM THE DECREE OF THE COURT OF 'COMMON FLEAS OF MONTGOMERY COUNTY.</p> <p>No. 363 January Term 1888, Sup. Ct.; court below, No. 133 October Term 1885, C. P.</p> <p>On May 7,1886, George Hand, committee of George Blake, a lunatic, filed an account showing a balance in his hands due the estate of 1437.03. Exceptions having been filed to said account, on June 21, 1886, Mr. J. W. Apple was appointed auditor to hear and determine the exceptions and to report distribution.</p> <p>Mr. Apple soon afterwards died, and on July 5,1887, Mr. J. P. Hale Jenkins was appointed auditor in his stead, who on September 6,1887, filed a report showing the facts out of which the controversy arose to be as follows:</p> <p>On October 5, 1885, upon proceedings regularly conducted, George Blake was adjudged a lunatic, and George Hand appointed the committee of his estate. On October 24, 1885, a petition was presented by the committee setting forth that the lunatic, having no personal estate and his real estate being unproductive and unimproved, had no means of support, and, annexing a schedule of the debts of the lunatic, prayed for an order to sell the real estate which was granted. A return of the sale of real estate was confirmed on May 7, 1886. On July 17, 1886, the lunatic died insolvent leaving a will dated April 29, 1882, which, was duly admitted to probate on August 25, 1886, and letters testamentary thereon issued to Hiram Blake and George E. Blake, the executors therein appointed.</p> <p>Finding the foregoing facts the auditor reported as follows :</p> <p>The first question raised for the auditor’s decision is that presented by Mr. Dickinson, who claims the entire fund, as counsel for the executors of George Blake, the lunatic, now deceased, and claims that the auditor’s duty simply is, to award the entire fund to them. At the argument, however, Mr. Dickinson admitted that the hills contracted by the committee should be paid. If this position be the true one it will simplify the duties of the auditor.</p> <p>Has the Court of Common Pleas jurisdiction of this account, under the foregoing facts, sufficient to distribute the fund in the bands of the committee to and among the creditors of the deceased lunatic ? That a distribution to the next of kin cannot be made in the Common Pleas is ruled in Frankenfield’s App., 11 W. N. 373. This ease is relied upon by tbe counsel for tbe executors of this deceased lunatic, as authority against any distribution of the balance in tbe hands of the committee. Let us see if the case referred to is applicable.</p> <p>Tlie 20th section of the act of June 13,1836, the act relating to lunatics and habitual drunkards, is in the following language: “ The committee of the estate of every person found to be a lunatic or habitual drunkard as aforesaid, shall have tbe management of the real and personal estate of such person, and shall from time to time apply so much of the income thereof as shall be necessary to tlie paymont of liis just debts and engagements, and the support and maintenance of such person and of liis family, and for the education of his minor children.</p> <p>The 22d section provides: “If the personal estate of such lunatic or habitual drunkard shall not be sufficient for tbe purposes aforesaid, it shall be lawful for the Court of Common Pleas having jurisdiction of the accounts of the committee of such person, to make an order authorizing such committee to sell at public sale, or mortgage, such parts of the same as the said committee shall deem expedient.”</p> <p>The court in conformity to the 22d section, directed that the real estate should be sold. For what purpose was it sold? The petition upon which the order was granted scheduled the debts, and stated that there was no personal estate to pay them, and further stated that it would require the sum of $250 annually to support and maintain said lunatic, and that the income of Iris estate was insufficient for that purpose. The order then clearly was for the purpose of raising money to pay said debts and maintain said lunatic. Even without noticing the order of the court to sell, a close reading of the act seems to indicate that the moment George Blake was declared a lunatic, the rights of the creditors as they then existed immediately attached and became a charge on the assets, as they subsequently came into the hands of the committee: Wright’s Appeal, 8 Pa. 57; if all could not be paid in full, then pro rata, as the accounts may be ascertained by subsequent proceedings. The act even provides that a creditor may issue a summons against a lunatic and have the amount thus ascertained by judicial process. And it was held in Eckstein’s Est., 1 Pars. 59, that the amount thus ascertained “ if prosecuted bona fide to judgment would be conclusive, as to the amount and merits of plaintiff’s demand.”</p> <p>It must be remembered that in the case now under consideration, after the appointment of the committee, an application under the 22d section of the act aforesaid was made to the court for the sale of the lunatic's real estate. To obtain this order certain debts were scheduled, as being at the time existing claims against the lunatic. On the faith of that petition, to pay the debts of the lunatic and to maintain him, the order to sell was granted. The fund thus realized, was realized for a specific purpose. The arm of this court was extended to prevent the consequent wrangle which would have ensued had not this course been pursued. The real estate having been converted into cash for the purpose of paying the debts and maintaining the lunatic, can it be possible now, that the court has not jurisdiction to distribute the fund among these claimants, obtained, as Chancellor Kent observed in Brasher v. Cortlandt, 2 Johns. Ch. 402, by “ the trustee of the creditors and the agent of the court ? ”</p> <p>Is not the case of an assignor, dying after the assignment for the benefit of creditors, an analogous case ? In such a case the creditor’s rights attach immediately after the assignment by the act of the assignor himself; in the case under consideration by operation of law. Can it be successfully held that in the case of an assignor, dying after the assignment, that the executor of the assignor could obtain the whole fund for distribution to and among the creditors at the time of his decease ? The debts may have been increased; can the creditors be subjected to the possibility of such an increase, or the necessary expense incurred in both settlements ? The committee here is entitled to commissions; so would the executors be. The full cost of an administration would be incurred and the fund lessened, so that practically nothing would be left to distribute. After the payment of all debts, the balance of course would have to be paid the executors. So are they here.</p> <p>Morrison’s Case, cited by counsel for the executors, in 9 W. & S. 117, was a case of an execution against a decedent’s estate, where the surplus only was awarded to the administrator of the decedent by the court. In that case the officer of the law, the sheriff, was directed by his writ to sell the real estate to satisfy the judgment. After this purpose was accomplished, and the payment of the liens against the decedent, obtained during his lifetime, the balance only was paid to the executor or administrator. If Morrison’s Case was an authority for the counsel citing it, it should have ruled that the entire fund was to be paid to the administrator. Not doing this, the auditor holds it as authority against the position held by the counsel for the executors.</p> <p>In Frankenfield’s App., supra, exception was taken to the distribution of the estate to and among the heirs of the lunatic. This exception was sustained. There were other facts adjudged by the court below. Whether any debts were paid, does not appear from the meagre report of the case. The exception made seems to indicate that none were passed upon. If any were paid, no exception was taken thereon. In this case, the estate is insolvent and the heirs consequently get nothing. If Frankenfield’s Appeal rules this case, then the debts, which under Wright’s Appeal became a charge, are by the death of the lunatic diverted and postponed to those made subsequent to the approval of the inquisition. The auditor does not believe this to be the law, and therefore rules that the court has jurisdiction to distribute the fund in hand to and among the creditors of the lunatic.</p> <p>In addition, this fund having been raised for a special purpose, this purpose is not subserved until distribution is made: Wright’s Appeal, 8 Pa. 57; Eckstein’s Est., 1 Pars. 59; Morrison’s Case, 9 W. & S. 117; Todd v. Rhoads, 37 Pa. 60.</p> <p>The auditor then reported a distribution of the fund to the creditors of the deceased lunatic, when exceptions were filed by the executors of the deceased, that the auditor erred in not awarding the entire fund to them.</p> <p>The exceptions being argued, the court, Swartz, P. J., on January 16, 1888, filed the following opinion and decree :</p> <p>The committee in lunacy paid the liens of record and the expenses of the inquisition, including the costs of the proceedings to sell the real estate. After these payments were made there was a balance of $437.03 in the committee’s hands, andan auditor was appointed to make distribution of the same. The lunatic died after the auditor was appointed. Had the auditor appointed by the Common Pleas authority to make distribution among the creditors, or should the fund have been awarded to the executors of the deceased lunatic ?</p> <p>The auditor makes the distribution and does so mainly upon the theory that these debts were contracted by the committee. We fail to see why these claims should be paid by the committee rather than by the executors of the estate of George Blake. They are the debts of the estate of George Blake, deceased, and if by reason of the proceedings in the Common Pleas they secured any preference, such preference can be worked out in the distribution in the Orphans’ Court as well as in the Common Pleas. The facts as taken from the testimony, however, show that the major portion of the claims allowed by the auditor were for debts contracted by George Blake before he was adjudged a lunatic. We fail to see any good reason why this balance should not have been distributed through the executors in the Orphans’ Court. This is the court that has full authority to make distribution in a decedent’s estate, and to it all creditors look for a proper adjudication of their claims: Whiteside v. Whiteside, 20 Pa. 473; Linsenbigler v. Gourley, 56 Pa. 166.</p> <p>Wliy should this estate be distributed without giving to all claimants a lull hearing in the Orphans’ Court, the only place where all can be heard ? The committee by filing a petition in the Common Pleas cannot give such a preference to some of the debts of the estate as will exclude all others. The claimants for funeral expenses must have an opportunity to be heard. It will not do to say to them, you have no standing here, and then distribute the whole estate to others. If their claims are to be adjudicated in the Orphans’ Court, then the fund must pass to the Orphans’ Court for distribution.</p> <p>Frankenfield’s Appeal, 11 W. N. 373, rules this case. The auditor should have awarded the executors the sum of $370.47 for distribution in the Orphans’ Court. This was the property of the lunatic when he died. It is entirely unlike the proceedings in an assigned estate, where the assignor transfers his estate for a specified purpose, and it cannot be likened to proceedings upon an execution, where the law takes the property from the debtor and distributes it among the lien creditors. The sale in this case was but a conversion of the lunatic’s real estate. The money belonged to him. The duties of the committee ended with the death of the lunatic. The law provided a new custodian for the fund.</p> <p>And now, January 16, 1888, the 1st exception filed by Hiram Blake, executor of George Blake, deceased, is sustained and the report of the auditor is referred back to him to make distribution in accordance with this opinion.</p> <p>The auditor having made a second report awarding the balance shown by the account, less the costs of audit, to Hiram Blake and George E. Blake, executors of George Blake, deceased, the same was confirmed, when E. M. Wheatland, a creditor receiving an award under the former report took this appeal, specifying that the court erred in sustaining the exception filed to the first report of the auditor and awarding the fund to the exceptants.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE CHESTER COUNTY.</p> <p>No. 191 January Term 1888, Sup. Ct.; court below, No. 127 August Term 1887, C. P.</p> <p>On June 27, 1887, a case stated was submitted wherein Enoch L. Harlan was plaintiff, and E. D. Haines & Co., defendants, wherein it was agreed, in substance:</p> <p>That Enoch Harlan died in 1872, having by his will, admitted to probate on July 25, 1872, bequeathed $2,500 in trust, the income or interest thereof to be paid annually to his wife, during her natural life, with power in the trustee to appropriate such part of the principal as might be necessary, in his discretion, to render the situation of the wife comfortable; and at her death or remarriage, the principal of said fund, or the unexpended portion thereof, to be divided into seven equal parts for his seven children, one of whom was Enoch L. Harlan, the plaintiff. That on March 21, 1874, E. D. Haines & Co., the 'defendants, having obtained a judgment against said Enoch L. Harlan, had caused a writ of execution attachment to be served upon the trustee under the will of Enoch Harlan, deceased, and on March 28,1874, the said writ was served upon said Enoch L. Harlan; that an appearance was then entered for the garnishee, but no appearance was ever entered for the defendant. That the widow of Enoch Harlan died in the year 1886, and, as appeared by the account of the trustee duly confirmed by the court, the balance of the principal of the fund in his hands was $1,739.56, the share of said Enoch L. Harlan therein being $248.50. That no further proceedings were had under said execution attachment until January 14,1887, when said Enoch L. Harlan filed with the prothonotary a claim for the benefit of the $300 exemption, under the act of April 9, 1849, P. L. 533.</p> <p>Tt was agreed that if the court should be of the opinion that under the foregoing facts said Enoch L. Harlan was entitled to the benefit of the exemption as claimed by him, then judgment should be entered for the plaintiff for $248.50; but if the court should not be of that opinion, then judgment to be entered for the defendants, etc.</p> <p>The court, Euthey, P. J., after argument, filed an opinion, in which, considering Malany v. Entriken, 7 W. N. 374; Yost v. Heffner, 69 Pa. 69; Landis v. Lyon, 71 Pa. 475; Morris v. Shafer, 93 Pa. 489; Howard B. & L. Ass’n v. Railroad Co., 102 Pa. 223; Bancord v. Parker, 65 Pa. 338; Strouse v. Becker, 44 Pa. 209; Bair v. Steinmau, 52 Pa. 423; Bittenger’s App., 76 Pa. 105, and Thomas v. Born, 5 W. N. 362, concluded that the plaintiff was not entitled to the exemption claimed by him, and directed that judgment be entered for the defendants. Thereupon the plaintiff took this writ, assigning the order entering judgment as error.</p>

<p>(а) The holder of a mortgage securing certain notes assigned the mortgage and notes, without recourse, and at the same time executed a written certificate that he had not received any payment on any of the notes described in the mortgage, except what had been realized upon a sheriff’s sale.</p> <p>(б) The assignee issued a scire facias upon the • mortgage wherein a judgment was rendered against him, the findings of fact by the court without a jury, upon testimony in part that of the assignor, showing that in effect the notes were all paid and that the mortgage itself was invalid.</p> <p>(c) In an action for deceit subsequently brought by the assignee against the assignor, the plaintiff offered to read in evidence the record of the scire facias, including the testimony, the findings of fact and the conclusions of law. by the court, and the judgment entered thereon:</p> <p>1. In such case, as matter of construction, the certificate was the positive statement of a fact peculiarly within the defendant’s knowledge, and the statement one upon which the plaintiff had a right to rely: that it was intended as a warranty was not to be questioned.</p> <p>2. But the effect of the certificate was to be confined to the particular matters specified therein, as it had no reference and contained no statement as to the execution of the mortgage in respect of a matter which rendered it invalid.</p> <p>3. The effect of the clause in the assignment — without recourse to the assignor, could not be extended to prevent his liability lor the contemporaneous and positive, though fraudulent, representation and warranty that nothing had been paid upon the notes except as stated.</p> <p>4. If a person is thrown off Ms guard by a false and fraudulent warranty, it is sufficient to prove the warranty broken to establish the deceit; for one will be presumed to know of the existence or non-existence of a fact which he undertakes to warrant.</p> <p>5. While the testimony of the living witnesses upon the trial of the scire facias was inadmissible, it was error to exclude the offer of the pleadings, the findings of fact and conclusions of law, offered for the special purpose of showing the particular ground of the judgment for the defendant.</p>

<p>1. In a proceeding to charge land of adevisee with the payment of abridgment recovered against the representative of the testator, the ordinary writ of scire facias to revive et quare executionem non, with notice to the devisee and duly served, was held good on demurrer.</p> <p>2. If, upon the trial of the scire facias, facts are put in evidence by the devisee which strongly impeach the original judgment as collusive and fraudulent, as matter of law the burden is shifted upon the plaintiff to establish the debt with which it is sought .to charge the real estate.</p> <p>3. Where the burden of proof lies in the first instance and when a sufficient case has been made out to shift it, are questions of law for the court, and after evidence on the part of the devisee, such as stated, the judgment is entitled to no presumption in its favor.</p>

No. 304 January Term 1889, Sup. Ct.; court below, No. 84 May Term 1886, C. P. On April 20, 1886, Isaac R. Lash and Sarah, bis wife, in right of said Sarah Lash, brought ejectment against Elvina Fidler and Franklin Hertzog, to recover possession of two bouses and lots in the borough of Womelsdorf. Issue.

<p>(a) On the trial of an indictment charging the procurement of an abortion, Evans, a co-defendant, testified that he had made an arrangement with the defendant on trial by which the latter was to commit the offence: there was other testimony tending to establish the corpus delicti and to implicate the accused therein:</p> <p>1. In such case, as the corpus delicti was proven to the satisfaction of the jury by independent testimony properly submitted, and as the accomplice did not testify to the actual commission of the offence, the defendant was not and could not have been convicted upon the testimony of the accomplice alone.</p> <p>2. Wherefore, a point for the defendant, that “ corroborating evidence must not only be as to the commission of the offence by somebody, but must also be a corroboration of the fact that defendant on trial committed it,” was not supported by the facts in evidence.</p> <p>3. An instruction to the jury, as follows: “I leave the question to you as to corroboration, simply saying .... that unless the testimony of Evans is corroborated in a material part, it would be your duty to return a verdict in favor of the defendant,” was more favorable to the defendant than he was entitled to.</p> <p>i. The trial judge did his full duty, in cautioning the jury as to the danger of convicting upon the uncorroborated testimony of an accomplice, and he was not bound to instruct them to acquit in the absence of corroboration, as there is no rule of law which requires such instruction.</p>

<p>1. Section 3, act of May 25, 1887, P. L. 271, providing that a plaintiff’s declaration shall consist of a concise statement of the plaintifl’s demand, as provided by § 5, act of March 21, 1806, 4 Sm. L. 328, does not exclude from its operation cases concurrently cognizable before a justice of the peace.</p> <p>2. Wherefore, in an action in the Court of Common Pleas for an amount within the jurisdiction of a justice of the peace under the act of July 7, 1879, P. L. Í94, if the plaintiff have filed a sufficient statement he is entitled to judgment in default of an affidavit of defence.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE NORTHAMPTON COUNTV.</p> <p>No. 29(3 January Term 1889, Sup. Ct.; court below, No. 7 December Term 1885, C. P.</p> <p>On October 14, 1885, a writ of replevin issued in a suit by R. W. Leibert and Maria E. Leibert his wife, in right of said wife, against Helena Baker and C. B. Mayberry. Issue was joined upon the defendants’ plea of avowry and cognizance.</p> <p>At the trial on September 17,1888, it appeared that early in October, 1885, Helena Baker widow of Charles Henry Knauss, issued a warrant of distress to C. B. Mayberry, bailiff, for the distraint of the goods and chattels of Maria E. Leibert, for arrearages of dower interest charged upon the premises accepted by the latter in certain partition proceedings. The warrant of distress having been executed, the plaintiffs brought this action. When the testimony had all been received, an agreement of the parties was filed, submitting the cause to the decision of the court without a jury, under the act of April 22, 1874, P. L. 109.</p> <p>On January 14,1889, the court, Reeder, J., filed the following decision:</p> <p>This case was called for trial on September 17,1888. After the testimony closed it was agreed in writing filed of record by the plaintiffs and defendants that a juror should be withdrawn, and the trial by jury dispensed with, and the cause be submitted to the judgment of the court, in accordance with the provisions of the act of assembly, approved April 22, 1874.</p> <p>Charles L. Knauss, of the borough of Bethlehem, died in 1859, seised of several jueces of real estate, situate in the borough of Bethlehem. He left surviving him a widow, Matilda L. Knauss; two sons, Cornelius M. Knauss and C. Henry Knauss; and one daughter, Maria E., intermarried with Richard W. Leibert. C. Henry Knauss, intermarried with Helena Baker, died in 1866, leaving to survive him a widow, the defendant, and a daughter, Mary M. Knauss. Matilda L. Knauss, the widow of Charles L. Knauss, died in 1871. Cornelius M. Knauss was appointed guardian of Mary M. Knauss, a minor child, daughter of C. Henry Knauss, by the Orphans’ Court of this county. In 1872 a petition was presented to the Orphans’ Court, signed by all the parties in interest, praying for the partition of the real estate of which said Charles Knauss was seized at the time of his death. Commissioners were thereupon appointed, who reported that the real estate could not be divided, and they valued and appraised the same. Purpart No. 1, the real estate affected by this issue, was appraised at twelve thousand dollars. Maria E. Leibert accepted this purpart No. 1, at said valuation of twelve thousand dollars, and entered into recognizances in the sum of twenty-four thousand dollars to pay to the other heirs their just share of the consideration money. Helena Baker, the widow of C. Henry Knauss, and the present defendant, was entitled to receive ($79.06) seventy-nine dollars and six cents, annually, on account of her interest in the said purpart No. 1, as the widow of C. Henry Knauss, one of the sons of Charles L. Knauss. Maria E. Leibert, who accepted purpart No. 1, never paid to Helena Baker any of the said interest to which she was entitled by virtue of the decree of the Orphans’ Court. In October, 1885, the said Helena Baker signed and delivered a warrant of distress to Charles Mayberry, the other defendant in this issue, who distrained all the goods on the premises which constituted purpart No. 1 of Charles L. Knauss’s estate. On October 14, 1885, a writ of replevin was issued from the Court of Common Pleas. The sheriff of Northampton county, by virtue of this writ, replevied the goods thus distrained by Charles Mayberry, as the bailiff of Helena Baker, and this issue is to try the right of possession to these goods thus replevied.</p> <p>The principal legal question involved in this trial is whether Helena Baker could distrain for the interest due her under the decree of the Orphans’ Court.</p> <p>It is provided by the act of March 29,1832, § 41, P. L. 202, as follows: “ Should the widow of the decedent be living at the time of the partition, she shall not be entitled to payment of the sum at which her purpart or share of the estate shall bo valued, but the same, together with interest thereof, shall be and remain charged upon the premises; and the legal interest thereof shall be annually and regularly paid by the persons to whom such real estate shall be adjudged, tlieir heirs and assigns holding the same,' according to their respective portions, to the said widow during her natural life, in lieu and full satisfaction of her dower at common law and the same may be recovered by the widow by distress or otherwise, as rents in this commonwealth are recoverable.”</p> <p>[There is no doubt in my mind that the provisions of this act apply only to the widow of the decedent whose estate is the subject of proceedings in partition, and cannot be applied to the widow of an heir dying after the original owner. These proceedings were all in Charles L. Knauss’ estate. The petition was for the partition of the real estate of which Charles L. Knauss died seised. If the widow of Charles L. Knauss had been living her interest could have been set apart under the act of 1832, and she would undoubtedly have had the right to distrain for the arrearages of interest due; but we do not believe this right belongs to the widow of an heir dying before partition.] 4</p> <p>We are confronted at this point and embarrassed by the proceedings in the Orphans’ Court upon that petition. In 1872, when the petition was filed in which Helena Baker, Maria E. Leibert and Richard W. Leibert, as well as all the other heirs joined, it set forth that Charles L. Knauss had died seised of real estate therein described; that he left surviving him a widow who had since died; two sons, one of whom had since died, leaving to survive him a widow and child; that C. M. Knauss had been appointed guardian of the deceased brother’s child, and a daughter, Maria E. Leibert. After the commissioners had reported that the real estate could not be divided, and had valued and appraised the same, the parties appeared in open court, and Maria E. Leibert accepted purpart No. 1, at the valuation, viz.: twelve thousand dollars. Thereupon the court made a decree “ confirming unto Maria E. Leibert, her heirs and assigns forever ” said purpart No. 1, and directing her to enter into certain recognizances, among others, “unto the widow of C. Henry Knauss, for her yearly interest of the one third of the share and dividend due and coming to the said Matilda M. Knauss.” With the regularity or irregularity of these proceedings we have nothing to do here. They were the proceedings of the Orphans’ Court, which is a court of record, whose proceedings cannot be questioned in a collateral proceeding. All the parties in interest took part in the proceedings from the filing of the petition, down, without exception or objection. All interested were represented, and we doubt, even if we had the power to review the proceedings in the Orphans’ Court thus collaterally, whether we would have the right under such circumstances.</p> <p>This brings us then to the consideration whether the arrearages of interest upon this recognizance as given, can be made the subject of distraint. We think not. Distress is not the remedy by which arrearages of interest upon all recognizances given in accordance with the act of 1832 can be recovered. By the act itself that remedy is limited to recognizances given to the widow of the decedent. The decedent was Charles L. Knauss. His widow was the only one within the provisions of the 41st section of the act of 1832. The widow of a deceased son was not. Her remedy was upon the recognizance, and not by writ of distress.</p> <p>Nor does the act of April 24,1843, § 8, apply to a case such as this. That does not contemplate proceedings in partition of the original decedent’s real estate, but where the proceedings are between co-parceners or tenants in common. The proceedings in virtue of which Maria E. Leibert took the title were under the act of 1832, and not that of 1843, and her rights must be determined by a construction of the former act. Whether this petition could have been presented by the heirs of Charles L. Knauss, as tenants in common, under the act of 1843, and what would have been Helena Baker’s rights had that course been pursued, is a'question that we are not called upon to decide here. The fact is, that it was not so presented. The petition was filed by the heirs of Charles L. Knauss for the partition of Charles L. Knauss’ real estate. The petition was presented, and the proceedings were therefore under the act of 1832 and not under the act of 1843; and the rights of the parties must be determined by the provisions of the former act.</p> <p>Now, January 14, 1889, judgment entered in favor of plaint* iffs, unless defendants file exceptions within thirty days.</p> <p>To tlie foregoing decision tlie defendants filed exceptions that, inter alia, the court erred:</p> <p>3. In concluding as a matter of law that the right of distress was not incident to tlie defendant, Helena Baker; the said Helena Baker being the widow of C. II. Knauss, deceased, who was the son of C. L. Knauss, deceased, the former being dead when partition was made of the lands of the latter.3</p> <p>4. In not finding as a fact that partition was made of the estate of C. H. Knauss, under the proceedings to have partition of the estate of C. L. Knauss.3</p> <p>5. In directing judgment to be entered for the plaintiffs and not for the defendants.6</p> <p>On January 15, 1889, after argument, the foregoing exceptions were dismissed and judgment entered for tlie plaintiffs. Thereupon the defendants took this writ, specifying that the court erred inter alia :</p> <p>3. In the dismissal of defendants’ third exception.3</p> <p>4. In the conclusion of law embraced in [ ] 4</p> <p>5. In the dismissal of defendants’ fourth exception.3</p> <p>6. In the dismissal of defendants’ fifth exception.6</p>

<p>(a) The owner of timber land agreed with the plaintiff, the owner of a saw-mill, that the latter would cut, haul, stock and saw into lumber all the timber flt for sawing on a certain tract of land, and to do, furnish and provide everything to stock, manufacture and neatly pile the lumber after it was sawed.</p> <p>(&) In consideration whereof the plaintiff was to receive from the landowner, after the lumber was sawed and piled, certain shares of each kind of lumber, the lumber, however, to remain the properly, of the land-owner and none of it to be removed from the mill until after it had been divided.</p> <p>1. In such case, if logs which had been out by the plaintiff under said contract were burned by a fire occasioned by the negligence of a railroad company, the plaintiff had such interest in them as entitled him to maintain an action therefor against the railroad company,</p> <p>2. A settlement between the land-owner and the defendant company did not bar the plaintiff from bringing suit against the latter to recover the value of his interest, whatever it was, and parol evidence was admissible to show that a settlement receipt of the landlord was for the landlord’s interest alone.</p>

<p>1. In an action against two or more, in case in the nature of a conspiracy, if the tort be actionable whether committed, by one or more, recovery may be had against but one; but if the tort be actionable only when committed by two or more, recovery may not bo had unless the unlawful conspiracy be established: Collins v. Cronin, 117 Pa. 35.</p> <p>2. If a defendant, impleaded with others in an action for conspiracy, while acting as the agent of plaintiffs to buy hay for thorn turned over the hay when bought witli plaintiff’s money to his co-defendants, he was acting in bad faith and recovery may be had against him alone for the loss sustained thereby.</p> <p>3. “If the declaration had been printed we could have formed an intelligent opinion as to whether the tort in this case was of such a nature that all the defendants must have participated therein. It is becoming a too common practice to omit the pleadings from the paper books of the plaint iff in error; in all such oases we must assume that they sustain the verdict: ” per Mr. Chief Justice Paxson.</p> <p>4. Where in an action for conspiracy against plaintiffs’ agent and two others, a former recovery in assumpsit by the agent’s co-defendants alone against the plaintiffs in the action of conspiracy where such recovery is pleaded, will not avail as a plea in bar, the record showing that not only the cause of action but the parties were not the same.</p>

No. 139 January Term 1889, Sup. Ct.; court below, No. 504 September Term 1887, C. P. On July 27, 1887, John Holmes brought ejectment against Elizabeth Tallada and Jackson Tallada, her husband, to recover a parcel of land in Monroe township containing 50 acres. Issue. At the trial on November 20, 1888, Jackson Tallada, by leave of court, filed a disclaimer of title to the land in dispute.

<p>ERROR TO THE COURT OE COMMON PLEAS OE BRADFORD COUNTY.</p> <p>No. 125 July Term 1888, Sup. Ct.; court below, No. 487 September Term 1887, C. P.</p> <p>On July 19,1887, a summons in trespass issued in an action by Rosanna A. Moe, widow of Augustus R. Moe, against T. J. Smiley, administrator of Randolph Lyon, deceased. On October 20th, on motion of plaintiff’s attorney, leave was granted to amend the declaration by adding that the action was brought under the acts of May 15, 1851, P. L. 674, and April 26, 1855, P. L. 309, and the damages claimed were as well for the benefit of said plaintiff as for Dora M. Cummings, M. M. Moe, Janies A. Moe and Hettie Moe, the only children of said Augustus R. Moe, deceased. The defendant pleaded, not guilty.</p> <p>At the trial on May 14, 1888, the plaintiff showed that on July 2, 1887, Augustus R. Moe, the plaintiff’s husband and the father of the beneficiaries, was engaged at an auction sale in Franklin township, when Dr. Randolph Lyon drove up and accused Moe of having $30 of his money. Moe denied this, but Lyon persisted and told Moe that if he did not give up the money he would shoot him. Moe again denied having the money and turned to walk away from Lyon, when the latter raised his gun and fired, killing Moe instantly. Lyon drove home, put up his horse and shot himself at his barn, where he was afterwards found dead. Letters of administration upon his estate were issued to the defendant.</p> <p>Testimony upon the subject of damages having been given, the plaintiff rested, when the defendant moved for the entry of a judgment of compulsory nonsuit. The court, Sittser, P. J., 44th district, holding the term, granted the motion, saying:</p> <p>The act of 1851 confers a remedy whenever death shall be occasioned by unlawful violence or negligence. It does not say against whom the action is to be brought, but there is no doubt whatever, of course, but that it means that it shall be brought against the wrongdoer. It does not say in what way, or upon whom the unlawful violence shall be inflicted; but we read the act as if it said, whenever death shall be occasioned by personal injuries inflicted by unlawful violence or negligence, that a remedy shall be given to the personal representatives of the deceased. Now this remedy at common law would not survive. Of course there is no question of survivorship on the part of the plaintiff, because, as the counsel says, it is a remedy given to the widow and children, but the question of whether it will survive the death of the wrongdoer still remains. At common law, it does not survive. In order to make it survive we think it is necessary to point to some statute which abrogates the common law rule. Our statute expressly excepts injuries done to the person. We think we are obliged to grant the compulsory nonsuit, as asked for, and will give the plaintiffs a rule to show cause why it shall not be taken off.</p> <p>Subsequently, after argument, the rule to show cause, etc., was discharged, when, judgment against the plaintiff for costs having been entered, the plaintiff took this writ, assigning as error the order of the court entering the judgment of nonsuit and the refusal of plaintiff’s motion to vacate the judgment.</p>

<p>1. An award which is not final, or is not complete as to all matters included in the submission, is void altogether, and is not admissible even as an account stated: Hostetter v. Pittsburgh, 107 Pa. 419, distinguished.</p> <p>(a) A building contract which constituted a submission to arbitration, provided for a release of liens, and contemplated the settlement by the arbitrator of all differences which should arise between the parties in file course of the work: complaints were made and deductions claimed for bad workmanship and negligence.</p> <p>(&) The award filed was in the form of a statement of account between the parties and contained no reference to the differences, the arbitrator regarding the court as the proper tribunal for tljeir settlement: at the end of the award the arbitrator stated that he would not accept the release of liens offered. Held :</p> <p>2. That the award was not final, both because certain matters within the submission were not passed upon by the arbitrator, and because it yet remained for him to approve a release of liens; and that, although the award was not valid, the contract still remained in force, and the plaintiff’s remedy was open to him whenever a valid award was made.</p> <p>8. Where the parties to an agreement, which is the basis of a submission to arbitration, are dissatisfied with the award thereon, and one of them repudiates it by bringing a suit upon the agreement which is decided against him, he will not be permitted to fall back upon the award.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OE BERKS COUNTY.</p> <p>No. 74 July Term 1888, Sup. Ct.; court below, No. 52 April Term 1886, C. P.</p> <p>On Mareli 17, 1886, Beneville S. Yosfc issued a summons in case, against the president, etc., of the Schuylkill Navigation Co. to recover damages for the failure of said company to rebuild a certain bridge. The plea was not guilty.</p> <p>At the trial on April 16, 1888, the following facts appeared:</p> <p>The company defendant was incorporated by act of March 8, 1815, P. L. 72, with authority to build a canal from the coal regions to Philadelphia. At certain places along the route it erected dams in the Schuylkill river and thus obtained deep enough water without constructing a canal at that point. One of these dams was erected below the city of Reading. Above it lay the farms of Abraham Yost, the ancestor of the plaintiff, and Henry Gring. The farms were upon the west side of the river and contained land upon an island separated from the main land by a narrow channel of water known as Mifflin’s Arm. The building of defendant’s dam backed up this water in the main stream and Mifflin’s Arm, about six feet.</p> <p>The act incorporating the company contained the provisions:</p> <p>“ Section 10. If any person or persons shall be injured by means of any dam or dams being erected as hereinafter mentioned, or the land of any person inundated by swelling of the water in consequence of the erecting of any dam or dams, or any mill or other water works injured by swelling the water into the tail race of any mill or other water works, which may have been erected in said river or any stream of water emptying into the same, and if the president, managers, and company cannot agree with the owner or owners thereof, on the compensation to be paid for such injury, the same proceedings shall be had as is provided in the eleventh section of this act; the persons valuing the damages, being first sworn or affirmed, or the jury, as the case may be, shall take into consideration the advantages which may be derived to such owner or owners by the navigation aforesaid.”</p> <p>Section 11 provides for the assessment of damages sustained by the entry upon land for the purpose of erecting lock, sluices, etc., i. e. the construction of the canal itself, and then continues as follows : “ But if the parties cannot agree upon the compensation to be made to such owner or owners, it shall and may be lawful for the parties to appoint six suitable and judicious persons, who shall be under oath or affirmation, and who shall reside within the proper county where the land lies, or if they cannot agree on such persons, then either of the parties may apply to the Court of Common Pleas of the proper county where the land lies, and said court shall award a venire directed to the sheriff to summon a jury of disinterested men in order to ascertain and report ■ to said court what damages, if any, have been sustained by the owner or owners of said ground by reason of such lock, canal or sluic'e passing through his, or their land.”</p> <p>“ Section 14. That whenever the said canal shall cross any public or private laid-out road or highway, or shall divide the grounds of any person or persons into two parts so as to require a ford or bridge to cross the same, the jury, who shall inquire of the damages to be sustained in manner directed by the eleventh section of this act, shall find and ascertain whether a passage across tlie same shall be admitted or maintained by a ford or bridge, and on such finding the said president, managers and company shall cause a ford to bo rendered practicable, or a bridge fit for the passage of carts and wagons to be built, and forever hereafter maintained and kept in repair at all and everyplace so ascertained by said jury at the costs and charges of said company.”</p> <p>Under these sections, Yost instituted a proceeding to No. 260 April Term 1820, to have damages assessed to him for the injuries resulting from the construction of the dam. A venire was issued, a jury called and damages awarded, from which the defendant company appealed, but a compromise settlement was subsequently made. In 1842 the canal was enlarged, and Nicholas Yost, plaintiff’s father, then owner of the land, instituted another proceeding, under said sections of the act to No. 95 April Term 1842, to assess his damages caused by the enlargement. A jury was also summoned in this case and there was awarded to Yost 8250, which was paid.</p> <p>In 1826 Gring compromised with the company and an agreement was executed between them, dated December 25, 1826, which fixed G ling’s damages at 8110, in consideration of which Gring released and discharged the company from damages of every kind in consequence of the canal or works passing through his land. The agreement then continued:</p> <p>“And the said Henry Gring doth hereby covenant and bind himself, his heirs, executors and administrators firmly by these presents unto the said president, managers and company of the Schuylkill Navigation Company, that whenever a guard lock may be built by the said company to connect the Schuylkill Navigation Co. with the Union Canal, at the head of Gring island, that he will, when thereto required, execute a deed, free of all incumbrances, to the said president, managers and company of the Schuylkill Navigation Co., conveying one acre of ground, to be laid off from the island tract of the said Henry Gring at the upper end thereof, so as to suit the said company to enable them to erect a toll-house or gate-house and room for a garden ; for and in consideration whereof the said president, managers and company of the Schuylkill Navigation Co. promise to pay to the said Henry Gring, his heirs, executors, administrators and assigns the sum of forty dollars upon such deed as aforesaid being executed, and the said president and managers aforesaid engage to build a bridge forthwith on the line between the said Henry Gring and Nicholas Yost, to enable the said Gring and Yost to pass and repass from and to the island across the canal; and the said Henry Gring hereby binds himself, his heirs, executors, administrators and assigns, at all times hereafter to allow the said Nicholas Yost and his successors to pass said bridge and along the line of the said Henry Gring to and upon the land of the said Nicholas Yost.”</p> <p>The canal referred to in this agreement, was Mifflin’s Arm, which was to be used to connect with the Union Canal.</p> <p>The guard-lock and gate-house were built, and deed made, and for some years Mifflin’s Arm was used for the passage of boats, and the company erected a bridge, as agreed, and for many years maintained it. In 1850 Mifflin’s Arm ceased to be used for the passage of boats, and in 1869 the bridge was swept away and the company refused to rebuild it. Yost having bought part of the Gring land, so that the eastern end of the bridge would rest on land owned by him, instead of upon the line of the farms, brought this action.</p> <p>Defendant offered in evidence the record of the proceeding to No. 260 April Term 1820, for the purpose of showing a venire and award of damages, and that the jury in that case did not report in favor of a bridge or ford, and therefore that the statutory conditions under which an obligation arises to keep a bridge in repair do not arise in this case; also to show a general assessment of damages.</p> <p>Mi-. Bland: Objected to, by the plaintiff, as irrelevant and immaterial, for the reason that it does not tend to show that there was not an agreement between the parties for the building and maintenance of a bridge by the navigation company, the statute not making it absolutely necessary that the liability of the company to maintain the bridge should be evidenced by the finding of a jury: the parties may have agreed to it, and that they did agree to it is clearly shown by the fact that the company maintained the bridge for fifty years.</p> <p>By the court: Objection overruled; exception.1</p> <p>Mr. Bland: Plaintiff makes the additional objection that the act of assembly chartering the defendant, makes an express distinction between land damages and the matter of bridges; consequently the finding of the jury and the assessment of damages hare no bearing on the question whether or not they agreed to maintain and build the bridges.</p> <p>By the court: Objection overruled; exception.1</p> <p>Defendant also offered in evidence the record of the proceeding to No. 95 April Term 1842, for the same purposes.</p> <p>Objected to as irrelevant and immaterial.</p> <p>By the court: Objection overruled; exception.8</p> <p>The plaintiff submitted certain points, which with their answers were as follows :</p> <p>1. If the jury believe the evidence of the plaintiff in the case, they can infer and find that the defendant, the Schuylkill Navigation Company, undertook and agreed when they constructed their works, to build and maintain a bridge across the arm of the Schuylkill river separating the land of the plaintiff, as prescribed by the fourteenth section of the charter of the defendant; and, if the jury so find from all the evidence in the case, the verdict should be for the plaintiff for the sum of money that it would cost to build and perpetually maintain a bridge across the said arm at the place where the bridge formerly stood.</p> <p>Answer: This point is answered in the negative.4</p> <p>2. If the jury find in favor of the plaintiff, the measure of damage is the cost of building and maintaining a suitable bridge.</p> <p>Answer: As there is no evidence to submit to the jury for the purpose of ascertaining these damages, so far as this case goes, this point is answered in the negative.5</p> <p>The defendant asked the court to charge:</p> <p>1. That under all the evidence in the case, the verdict must be for the defendant.</p> <p>Answer: This point is affirmed. That relieves the jury from any responsibility of further considering the case. Your verdict will be in favor of the defendant.6</p> <p>The general charge by Hagenman, J., was in part as follows:</p> <p>So this is the remedy pointed out by this act of assembly. First, where the lands are flooded, the tenth sectioxx provides that the damages are to be recovered as provided in the eleventh section; and, secondly, the eleventh section provides for the recovery of damages where a man’s property is injured-by the construction of the locks or sluices, the construction of the canal itself; and, thirdly, in the fourteenth section, the jury, who pass upon the matter when a man’s land is divided by the canal, must report whether a bridge or ford shall be admitted and maintained.</p> <p>In 1820, by the construction of the dam to which I have referred; there was back-water caused dividing the lands of Mr. Yost. Mr. Yost commenced his proceeding under the eleventh section of this act of assembly. This is a part of the record in that case:</p> <p>“ Case compromised on payment of $750 and costs; said sum to be paid into court in full satisfaction of all damages done to the real estate mentioned in said venire, whether claimed by Abraham Yost, by his heirs, or any other person who Avould legally be entitled to the same.”</p> <p>And on the record, under date of January 27, 1882, there is a receipt for the money paid into court by James L. Dunn. That was for the injury which this property sustained while owned by Abraham Yost, through whom the plaintiff in this case claims. And that was for all the damages sustained by that property from the backing of the water into Mifflin Run; and the court say to you that there is no provision made in this act of assembly by which Mr. Yost could oblige the canal company to build a bridge from one side to the other. The jury gave him damages for all the injury which he sustained.</p> <p>In 1842 there was another proceeding. This was instituted by Nicholas Yost against the president, managers and company of the Schuylkill Navigation Company. As you heard during the trial, navigation was begun with small boats, and the boats were enlarged subsequently until they carried larger burdens. I did not have the petition in the proceeding just referred to read to me. There was for some reason or other more backwater in Mifflin Arm, whether from raising the dam or for some other reason, and Mr. Yost was injured. The petition is indorsed, “Petition for the assessment of damages for injury done to the tract of land containing 104 acres, and a certain island in the river Schuylkill, opposite the land of Martin Fritz, con-taming about four acres, more or less,” and charges the destruction of about five acres of said island and tract of land. In connection with this there was offered in evidence the award of the jury assessing the damages at $250, and the receipt of that money by Henry W. Smith, attorney, acknowledging satisfaction of the judgment. You find, therefore, in 1842 an assessment of damages for other injury done to this property.</p> <p>In 1825 an act of assembly was passed authorizing the Union Canal and the Schuylkill Navigation Company to connect. Up to that time there is no evidence that the Mifflin Arm was ever used by the Schuylkill Navigation Company. Subsequently to the passage of this act such a connection was in contemplation, and Mifflin Arm was afterwards used as a canal. On December 25, 1826, there was an agreement made, which I will read to you:.....</p> <p>I have stated to you before that whatever damages Nicholas Yost sustained by the backing of the water up into that run were satisfied by this proceeding in 1820. [And, I say to you now, as a matter of law, upon the construction of this agreement, that there was an obligation upon the part of the navigation company to build this bridge at this time; but there is no provision made in this agreement by which they were to keep up and maintain this bridge, or, in case it should be washed away, to rebuild another in the place of it. If these parties contemplated that the navigation company should keep up and maintain a bridge there, the proceeding should have been under the act of assembly, as I have explained to you. Not having done that, then, standing upon the agreement which was made between the parties, the court say to you that they were to construct that first bridge, but they were not bound to rebuild another bridge when that bridge should be washed away.] 3</p> <p>Verdict for defendant and judgment thereon; whereupon the plaintiff took this writ, assigning for error:</p> <p>1, 2. The admission of defendant’s offers.1 8</p> <p>3. The part of the general charge embraced in [ ] 3</p> <p>4, 5. The answers to plaintiff’s points.4 5</p> <p>6. The answer to defendant’s point.6</p>

<p>FROM THE DECREE OE THE ORPHANS’ COURT OE BERKS COUNTY.</p> <p>Nos. 98 and 108 January Term 1889, Sup. Ct.</p> <p>In June, 1870, Charles H. Hunter died testate, leaving a widow and several children. By his will he devised all his property to his executor, John McManus, in trust to pay the income to his widow for life, but providing that as each child arrived at the age of 25 years, such child was to have his share of two thirds of the principal of the estate, and upon the death of the widow to have his share of the remaining one third.</p> <p>On December 21,1874, McManus filed an account as trustee, in which he claimed credit for $1,401.37 as commissions on funds which had passed through his hands. He expressed a purpose, however, to give these commissions to the children of the testator. On June 2, 1875, before his account was confirmed, McManus died, and Ammon L. Boyer was appointed testamentary trustee in his place, and also administrator d. b. n. c. t. a. of the testator.</p> <p>The executors of McManus filed his final account as trustee, November 20, 1875, in w'hich jthey charged against the trust, a note made by testator, in his lifetime, in favor of McManus and due in June, 1862, amounting with interest to $932.50. Boyer, as successor in the trust, objected to allowing credit for this note, on the ground that it was barred by the statute of limitations. McManus’ executors insisted that the note must be allowed or they would retain the $1 ,401.37, commissions above referred to. Boyer then withdrew his objections and the account was confirmed by agreement. McManus’ executors paid Boyer $468.87, the difference between the note and interest and the commissions, and he signed the following declaration and receipt, dated January 12, 1876:</p> <p>“ Whereas, John McManus in his lifetime was desirous of investing any commissions he had in charge as executor of Dr. Charles IT. Hunter, deceased, in trust for the benefit of the children of Dr. Hunter, and when the account was stated he expressly directed that the commissions should be applied so; and whereas, since his death a settlement has been made of the account of John McManus, executor, as aforesaid, and the balance due by the McManus estate to Hunter’s estate has been fixed on the express understanding that the commissions charged in the first account should be so invested.</p> <p>“ Now, therefore, I, Ammon L. Boyer, do hereby acknowledge that I have received this day from John McManus’ executors the sum of fourteen hundred and one dollars and thirty-seven cents, to be held by me, my heirs and executors, in trust for the children of Dr. Hunter, deceased, the interest to be applied to their maintenance and support until the youngest child attains the age of twenty-one, and then to be distributed among the children then living, share and share alike.”</p> <p>On September 8, 1885, Ammon L. Boyer died and the Reading Fire Ins. Go. succeeded him as trustee, while Jerome L. Boyer was appointed his administrator and filed for him an account with the trust. A medical library and surgical instruments, property of the testator, for which McManus had received credit in his account, were not mentioned in this account. The evidence did not show what disposition had been made of them. The Reading Fire Ins. Co. excepted to the account and asked to have the accountant surcharged with the appraised value of the library and instruments; and also with the $1,401.37 commissions.</p> <p>A.t the adjudication before Schwartz, P. J., the court filed the following opinion:</p> <p>Three exceptions are filed by the trustee to the account.</p> <p>The first asks to have the accountant surcharged with $285.95 for a medical library, and the second for a surcharge of $119.22 for goods that came into his hands, as trustee, and for which he fails to account, either in this account or with his successor in office. He appears to have accounted for and transferred to his successor, property in specie, as follows :</p> <p>Twenty-six shares of the East Penn. R. Company; two hundred shares of the Reading Fire Insurance and Trust Company; eight shares of Reading Iron Works; one hundred aud twenty-two shares of National Union Bank of Reading, Pa.; ten shares of the Reading Steam Forge Company, and one silver dollar.</p> <p>The above mentioned shares of stock appear to have come into the late trustee’s possession. His representative has transferred them to the present trustee of the estate. The cestuis que trust and their trustee, however, contend that the books and. instruments mentioned in the exceptions, also passed into his possession. What are the facts in relation thereto ? The same must be gotten and gathered from the evidence submitted, which shows, uncontradictedly, that he had them, or at least a portion thereof, in his possession, and that he sold and converted them into money. What he realized the court cannot determine, he having kept no account of the goods which came into his hands, nor of the proceeds upon their sale. It is, however, of the opinion that it should be presumed that, inasmuch as he had some of the books and instruments, he had the whole of them. It is clearly proven that he had such property and had sold it without accounting for the proceeds thereof. In the court’s opinion all intendments should be taken against him. It is, however, contended that this portion of the estate came into the possession of Ammon L. Boyer, as administrator de bonis non with the will annexed. He held both of the offices. To that of the trustee he was appointed in July, 1875, and to that of administrator in October, 1875. Tt is shown that he received all the rest of the estate, whether the same consisted of moneys, bonds or stocks, as trustee on the estate. It is but fair to presume that he received all the property in the same capacity. The court has no means to reach the value of said property, except by a resort to the inventory and appraisement. The same were valued by the appraisers at $405.17. These exceptions are sustained and the accountant surcharged therewith.</p> <p>The other (3d) exception seeks to have the accountant surcharged with the sum of $1,401.37 for commissions charged John McManus, which his son, William S. McManus, after the former’s death, paid to said Ammon L. Boyer, in trust and for the use of the children of Charles II. Hunter, under an agreement and by way of compromise for the allowance of the credit of $932.50 taken in their account as executors of John Mc-Manus, deceased, on the estate of said Charles II. Hunter, deceased. The credit was taken for a note which fell due on June 28, 18G2. No evidence of payment of interest or recognition of the note by Hunter in his lifetime has in any way been shown. On the contrary, the note appears to haire been barred at the time of Hunter’s death, and it further appears that John McManus, when he filed his account on the Hunter estate, did not charge the same against the estate, all of which tend to show that the note was either barred by the statute of limitations or settled between the parties in their joint lifetime. Hence the credit was taken illegally and would have been stricken off upon proper process.</p> <p>The court, without passing upon the contract, so far as Hunter’s children are concerned, now decide that the said credit was an improper one, and surcharge the estate of the accountant with the said sum of $932.50, for which John Mc-Manus’ executors had improperly taken credit. This disposes of the exceptions to the account.</p> <p>To this adjudication Jerome L. Boyer, administrator, filed the following exceptions:</p> <p>1. The court erred in surcharging the accountant with the sum of $405.17, the supposed value of surgical instruments and medical books.1</p> <p>2. The court erred in surcharging the accountant with $932.50, the credit which had been allowed the estate of John McManus, a former trustee of Dr. Charles H. Hunter.8</p> <p>The Reading Fire Ins. Co., trustee, filed the following exceptions :</p> <p>1. The learned judge erred in not charging the accountant with the interest on the value of the medical library and surgical instruments from July 20, 1875, the time when the accountant received the other assets of the estate and when he must be presumed to have received these also.3</p> <p>2. The learned judge erred in not charging the accountant with $1,401.37, commissions waived by the executors of John McManus, former executor of Charles H. Hunter'. The money was paid by a compromise, in which Hunter’s estate paid the consideration, and the compromise enured to the benefit of the estate. It is not sufficient to charge the accountant with the consideration. The true rule is that the estate is entitled to the consideration or the bargain, whichever is most beneficial.4</p> <p>Upon these exceptions the court, Schwabtz, P. J., filed the folloAving opinion:</p> <p>Both parties, accountant and cestuis que trust, filed exceptions to our findings. The cestuis que trust object first to the non-allowance of interest upon the proceeds of sale of medical library and surgical instruments. There is, in point of fact, little, if any, evidence that he sold the same. It is, however, clear that the same were on hand at the death of his predecessor, and that it was his duty to receive the same upon the assumption of the trust to which the court appointed him and for -which he qualified himself to take charge. It being his duty to take charge of this property, and either not having done so, or having done so and in some way having lost the same, he should be surcharged with the value thereof. This has been done. No more can consistently be required of him as trustee of said estate.</p> <p>Their second exception, which seeks to have the accountant surcharged with $1,401.87, is dismissed for the reasons stated by the adjudication.</p> <p>The exceptions on behalf of the estate of the trustee are, first: That the court erred in surcharging. the accountant with $405.17, the appraised value of the decedent’s medical books and surgical instruments. We are of the opinion and we have fully explained ourselves upon this point. We can find no error in our then findings. Its second exception is dismissed for the statements and reasons set out in our adjudication upon this estate. All exceptions to the report are dismissed, and the report upon adjudication and distribution is hereby confirmed.</p> <p>Thereupon Jerome L. Boyer, administrator, took an appeal and assigned as error:</p> <p>1. The dismissal of the exception.1</p> <p>2. The dismissal of the exception.8</p> <p>The Reading Fire Ins. Co. trustee, also took an appeal, and assigned as error:</p> <p>1. The dismissal of exception.3</p> <p>2. The dismissal of exception.4</p>

<p>FROM THE DEGREE OF THE COURT OF COMMON PLEAS OF CLINTON COUNTY.</p> <p>No. 262 January Term 1888, Sup. Ct.; court below, No. 2 September Term 1888, C. P. in Equity.</p> <p>Bill in equity filed to September Term, 1883, by Joseph B. Powers and Catharine Powers, his wife, in the right of said Catharine, against the Bald Eagle Boom Company, Simon Scott, president, and Jacob Scott, treasurer of the said corporation, to compel the defendants to remove certain booms from the Bald Eagle creek, to restrain them forever from erecting and maintaining like illegal structures, and from preventing the unobstructed flow of the waters of said creek in the ancient channel thereof. Demurrer and answers having been filed, the cause was referred to Mr. Jesse Merrill, as master.</p> <p>The facts are fully set out in the opinion of the court below, which after the report of the master, and the filing of numerous exceptions by both parties, wras delivered by Mayrhr, P. J., and was as follows :</p> <p>The Bald Eagle Boom Company is a corporation created'and existing under an act of assembly, approved April 13, 1859. By the second section of the act it was authorized and empowered to erect and maintain, on south side of Bald Eagle creek, between a point opposite the mouth of Fishing creek and the mouth of Marsh creek, such boom or booms, with piers, as may be necessary for the purpose of stopping and securing logs, masts or spars, and other lumber floating upon said creek, and erect piers, side branches or shore booms, as may be necessary for that purpose : Provided, that the said booms shall not be so constructed as to prevent the safe passage of rafts, boats, logs, masts, spars or other lumber, and not impede the navigation of said creek or the branches thereof.</p> <p>By the third section it is provided: “ That if any person or persons shall suffer damage by the exercise of the powers herein granted to said corporation, and the amount thereof cannot be agreed upon by the parties, nor such suitable person or persons agreed upon to estimate the same, the Court of Common Pleas, having jurisdiction in the county Avhere the boom or booms are situated, shall, upon application of the parties aggrieved, cause said damage to be ascertained by three disinterested freeholders of the same county, .to be appointed by said court, and who shall make report to the said court on or before the first day of the term next after the award shall have been made, and which, being confirmed by the court, shall have the effect of a judgment from the time of such confirmation : Provided however, That if either party be dissatisfied with the award of said commissioners, and shall, at the time at which the said award is presented for confirmation, apply to said court for a trial by jury in the manner as other like cases are determined, the court shall by jury determine the amount of such damages accordingly ; and if the verdict shall not be more favorable to the party applying for the jury, than the award given by the commissioners, judgment for costs shall be rendered against the applicants ; and if the verdict be more favorable to the party applying for a jury, than was awarded by the commissioners, the applicants shall receive costs, and execution shall in either, case issue upon the judgment; said corporation shall not take any private property until compensation be made or adequate security be given therefor before such property shall be taken.”</p> <p>The eighth section provides : “ That for the purposes aforesaid, the said corporation be and are hereby authorized and empowered to purchase, hold and possess any real estate adjacent to said boom or booms, or convenient thereto, with leave to build all such buildings as maybe deemed necessary for the convenient management of the affairs of said corporation; and for the same purposes their agent and those in their employ are hereby empowered to use and occupy the lands on the shore of said creek, so far as may be necessary, at the place or places where said booms are erected, and at such other place or places as may be necessary for rafting and securing logs and other lumber, and to pass and re-pass, on foot, to and from said boom or booms over the lands on both sides of said creek, for the purpose of erecting said boom, or making repairs from time to time, and generally for doing all matters and things necessary for the full accomplishment of the object of this corporation ; subject, however, to pay such damages as may arise in the prosecution of such objects or purposes, the damages to be ascertained as in the third section of this act.”</p> <p>The master finds that in pursuance of the powers conferred by its charter, the defendant corporation in 1860 and 1861 erected a boom, consisting of stone piers built in the bed of Bald Eagle creek, these piers connected with each other by sticks of timber fastened to the piers and floating on the top of the water between them ; beginning at a point opposite the farm of N. W. Fredericks where the lower pier was connected with the shore above the mouth of Fishing creek, on the south bank of Bald Eagle creek, up said stream and nearly in the centre thereof, to an island opposite the farm of Welsh, which is the third farm east of the plaintiffs’, at a cost of about twenty thousand dollars and being a,bout three fourths of a mile in length, with a capacity to hold about two million feet of logs; the amount of lumber floated down said creek being largely increased each year. In 1869 the corporation built an addition of eight piers at a cost of twenty-four hundred dollars, extending up said creek from the island above named to a point opposite the western line of William Huff’s land, which is the second farm east of the plaintiffs’. These piers, beginning at the head of the island, are north of the middle of the creek and gradually approach the northern bank, the upper one and the one next to it being sixty-six feet six inches from that shore and two hundred and sixty-five feet four inches from the southern shore. At a distance of one hundred and thirty-five feet eight inches south from said pier, is the head of the island in the creek. The distance across the head of the island is sixty-one feet eight inches and from there to the southern bank of the creek is sixty-eight feet. For the purpose of turning the logs and lumber floating down the creek into the boom, a sheer, which is made of square timber bolted together, three sticks, and about three feet wide, and about one hundred and twenty-five feet long is fastened to the next to the upper pier, and to the upper pier it is fastened by a chain that can be lengthened or shortened at the pleasure of the person managing it. During a flood when logs and lumber are running in the creek this sheer is kept extended towards the north shore and reaches within twenty-five feet four inches of that shore. By means of the chain attached to it from the upper pier it can be drawn in to that pier, and there is no evidence that any person has been delayed, impeded or prevented from navigating said creek with rafts, boats, logs or other lumber by reason of said boom or of the sheer, although it is established beyond controversy that the whole bed of the creek has on several occasions been filled with logs from shore to shore and that it was caused by the acts of tins corporation, whether by connecting the end of the sheer with the north shore by a log fastened to it as alleged by the plaintiffs, or by allowing the loose logs to run into and remain in the eddy said to exist there, as alleged by the defendant, and thus fill up the narrow passage between the end of the sheer and the shore, is immaterial.</p> <p>The plaintiffs axe the owners of a farm situate upon Bald Eagle creek, containing one hundred and seventy-one acres, and have filed their bill, in which they complain that the Bald Eagle Boom Company, in the erection and maintenance of its boom with piers, side branches, and sheer booms, has not conformed to the requirements of the second section of its charter, in that its booms, piers, side branches and sheer booms are not wholly erected and maintained on the south side of said Bald Eagle creek, but (excepting some of the lower piers) extend greatly over into the north side of the same, and the said booms are so constructed that they prevent the safe passage of rafts, boats, logs, masts and other lumber down said Bald Eagle creek, the navigation of which is thereby not only impeded, but entirely closed and rendered impassable..</p> <p>The master finds that in the years 1881, 1882 and 1883, the boom was filled with logs, and by reason of the closing of the passage on the north side, between the upper pier and the shore, as found above the bed of the creek, was packed with logs, solidly, to the bottom of the creek for a considerable distance above the upper pier, and the water, which would have naturally flowed off in the channel of the creek, was forced or turned over the northern bank, and ran over the land and meadow along the bank and over the land and meadow of the plaintiffs; the southern bank of the -creek is a high bank or bluff about twenty feet above the level of the creek, and no part of the water could escape in that direction; that the water so turned out of said stream by running over the land of the plaintiffs, damaged their land, crop and fences in the jmar 1883 to the amount of íji;169T8Q8Q-, and that the water spread over the bottom of the meadow for a couple of days.</p> <p>The master further finds: “ That from the year 1875 to 1885 inclusive there were caught by, and rafted out of the Bald Eagle boom 106,874,269 feet of logs, ninety-two and one fourth per cent of which were manufactured into lumber at the saw-mills at Lock Haven and vicinity, and the balance sent to places farther down the river; that there is still standing on the waters of Beech creek, a tributary of Bald Eagle creek, from which the logs and lumber that float into the boom principally come, between 225,000,000 and 275,000,000 feet of white pine, yellow and jack pine, hemlock, oak, chestnut, birch and other hard wood saw timber, the stumpage of which is worth $800,000; that the natural and only way to get this lumber to market is down Beech creek into Bald Eagle creek and Bald Eagle boom; that without this boom, as at present constructed, it would be impossible to hold and raft out the logs now annually put into Beech creek and Bald Eagle creek, so as to get them to the mills and have them sawed the same season; that an extension of the boom up the middle of the creek and occupying only the southern half, whilst it might hold the logs would be practically of no use, as they could not be rafted out of such extension excepting during a flood, and they do not last long enough to accomplish it.”</p> <p>The complainants deny the right of the corporation defendant, “under any pretended authority derived from said act of assembly, to construct and maintain their said booms and other structures, in the manner as they now are as aforesaid, and your orators have a right to have said boom, booms with piers, side branches and shore booms, so constructed and maintained as not to impede, or obstruct the navigation of said Bald Eagle creek, winch is a public highway and, especially, is the defendant required to confine said boom and booms with piers, to the south side of Bald Eagle creek and to so erect and maintain the same, that the northern half part or portion of the creek, may be left free and unobstructed thereby, for the flow of water at all times and the safe passage of rafts, boats, logs, masts, spars, or other lumber, and so that the navigation thereof be not impeded, not only for your orators, but also for the use and benefit of all citizens of the'commonwealth of Pennsylvania;” and aver, “ that upon the true construction of the act of assembly, incorporating the defendants, approved April 18, A. x>. 1859, the upper portion and extension of said boom or booms with piers, side branches and shore booms have not been erected and constructed, and are not maintained in conformity with the provisions of said act, but in violation of the same, as aforesaid; but further, the erection, construction and maintenance of said platform, attached as aforesaid, to the first or head pier and the second pier of said boom with piers, is wholly without authority of law, and the erection, construction and maintenance of the same, in connection with the boom as aforesaid, is a great nuisance, working irreparable damage to the complainants as aforesaid.”</p> <p>And they pray that said defendants may be compelled, by decree of this honorable court, to make reasonable compensation to your orators, for all damage done to them and their said land by defendants as aforesaid: That said defendants may be compelled by decree of this honorable court to remove said illegal structures, erected and maintained by tbe defendants as aforesaid, out of, and from, tbe said Bald Eagle creek; that the defendants, and all officers, agents and servants of said corporation, may be restrained, by injunction, issued out of this honorable court, from continuing and maintaining their Looms which they have erected in the Bald Eagle creek aforesaid, and forever hereafter from the erection and maintenance of like illegal structures in said Bald Eagle creek; that the defendants and all officers, agents and servants of said corporation may be restrained by injunction issued out of this honorable court forever hereafter from preventing the safe passage of rafts, floats, logs, masts, spars, or other lumber and from impeding the navigation of said Bald Eagle creek; that the defendants, and all officers, agents and servants of said corporation may he restrained, by injunction, issued by this honorable court, forever hereafter, from preventing the full and unobstructed flow of tbe waters of the Bald Eagle creek, in and along the northern portion of the ancient channel of the same.</p> <p>The right of the plaintiffs to maintain their bill depends upon tbe construction of the second section of the act of assembly incorporating the defendant. If the true construction of said section is, as contended by plaintiff, that the corporation cannot erect and maintain any of its structures beyond the south half of Bald Eagle creek, but that they must he confined wholly within said south half, then the hill of plaintiffs can be maintained, as the structures of defendant would he illegal and in violation of the terms of its charter, and this could be inquired into at the suit of plaintiffs under the provisions of the act of June 19, 1871, P. L. 1360. If the corporation has not exceeded its corporate powers, and an injury has resulted to the property of the plaintiffs, by acts done by the corporation in the exercise of its corporate franchises, then recourse must be had to the remedy provided in the third section of the act of incorporation, and a bill in equity will not lie.</p> <p>The liability of the defendant in this form of proceeding being dependent upon a construction of its charter, we are remitted to a consideration of its requirements. What, then, is a fair construction of the second section of the defendant’s charter ? It is a well settled rule of construction applicable to charters of private corporations, that they are to be taken most strongly against the corporators or persons who claim rights or jsowers under them, and most favorably for the public: Packer v. Railroad Co., 19 Pa. 211; Johnson v. Philadelphia, 60 Pa. 445; Commonwealth v. Railway Co., 52 Pa. 506. But. the construction must be a reasonable one, so as not to defeat the purposes of the grant: Brown v. Susquehanna Boom Co., 109 Pa. 57.</p> <p>[By the words of the second section of the charter, the company was authorized to erect and maintain on the south side of the Bald Eagle creek, such boom or booms with piers, as may be necessary for the purpose of stopping and securing logs, masts, etc., and erect such piers, side branches or sheer booms as may be necessary for that purpose; Provided, That the said booms shall not be so constructed as to prevent the safe passage of rafts, boats, logs, masts, spars, or other lumber and not impede the navigation of said, creek or the branches thereof. The contention on the part of the plaintiff is, that under the provisions of this section, the defendant is only authorized to erect and maintain its booms on the south half of Bald Eagle creek, and that its structures must be restricted and confined to the south half of the stream; and, as the master has found that the piers of the corporation above the island are placed beyond the middle of the creek, it is an exercise of corporate power not conferred by the charter, and that the plaintiffs are entitled to the relief prayed for. While it is true that the words “south side ” are somewhat indefinite, yet we think there can be no difficulty in arriving at their correct interpretation. We are of the opinion, that the words “south side” were meant or intended for the south shore or bank of the creek, and not as claimed by the plaintiffs, the south half of the stream. Webster’s Dictionary defines, “side,” as the “margin, edge, verge or border of a surface, as the side of the field, the side of a river.” In the criminal procedure act, § 49, the word side is used as synonymous with bank. “ In all cases where the side or bank of any navigable river or creek, canal or inland navigation, or the centre or other part thereof shall constitute the boundary of any two counties, it shall be,” etc.] 1 [We are aided in this interpretation by the fact, that the second section of defendant’s charter is an exact copy of the second section of the West Branch Boom Company’s charter: Act of March 29, 1849, P. L. 245, except that in the proviso to the second section of the charter of the West Branch Boom Co., the words “that said boom shall not extend more than half-way across said river,” have been omitted from the proviso contained in the second section of defendant’s charter, thus indicating that defendant was not to be restricted to the half of the stream, and that the only limitation to the exercise of its corporate power was, that the navigation of the creek was not to be impeded so as to prevent the safe passage of rafts, boats, logs, etc.] 3 This being our construction of the defendant’s charter, it is unnecessary to consider the various exceptions filed to the report of the master. [The defendant being in the exercise of powers which were granted by its charter, the plaintiff must resort to the remedy provided by the third section and their bill cannot be maintained.] 3 A court of equity will not entertain jurisdiction where a statutory remedy has been provided; the latter must be pursued.</p> <p>For the reasons herein stated, in addition to those given by the master, the bill of the plaintiffs must be dismissed. It is, therefore, ordered, adjudged and decreed that the bill of the plaintiffs be dismissed with costs, to which final decree, the solicitor of the opposite party, being present, does not object as to the form thereof.4</p> <p>The bill being dismissed accordingly, the plaintiffs took this appeal assigning for error:</p> <p>1-8. The parts of the opinion embraced in [ ] 110 3</p> <p>4. The decree of the court dismissing the bill.4</p>

<p>1. A delay of six years, and sometimes less, will be regarded as laches sufficient to stay the intervention of equity; especially where the complainant has stood by and allowed the defendant to make large expenditures upon the subject-matter in controversy.</p> <p>2. Where a bill prays for an injunction, for damages, and for other relief, and it appears that an injunction is not necessary to the full and adequal e relief of the complainant, but that he can be fully compensated by damages, the injunction will not be granted.</p> <p>(a) Under an Orphans’ Court sale certain land was sold in two tracts in 1821. A stream of water passed through both tracts, of which the owner of one tract was the dominant, and of the other the servient owner.</p> <p>(b) The deed for the former tract contained the following grant: “Also the right and privilege of taking and conveying the stream of water which passes through the adjoining tract, sold to Dowling and reserved from him for the use of this tract, to be conducted where it formerly was, for the purpose of erecting water-works.”</p> <p>(c) The deed for the latter tract contained the following reservation: “ Taking and reserving to the use of the adjoining tract, sold to Parke, aright and privilege of taking and conveying the stream of water which runs through the above described tract,.....where it has been formerly taken, for the purpose of erecting water-works.”</p> <p>(d) There was evidence that in 1821 there was a small turning mill on P.’s tract run by water taken by a race from said stream. The mill was abandoned soon afterwards and the stream used thereafter by P. and D. for agricultural purposes only. In 1875 P.’s grantee conveyed the water of the stream, by pipes, to a reservoir and stand pipe a mile distant, where it was used for railroad purposes.</p> <p>(e) In 1882, D.’s successor in title, who had owned the land since 1869, filed a bill in equity praying for an injunction against the railroad company defendant, to prevent the diversion of the stream, as above, for damages for injuries occasioned by such diversion and for further relief. The court: below awarded the injunction and found that the damages amounted to $75 per annum:</p> <p>3. As the grant to P. in 1821 was subject to the limitation that it was for the use of the P. tract and was “ to be conducted where it formerly was,” and as there was evidence that the former use was for the small turning mill, as above, the grant was limited and could not now be construed to warrant the diversion of the stream away from both tracts, for railroad purposes a mile distant, and not at all for the purposes of the P. tract.</p> <p>4. As the plaintiff had stood by for seven years, without taking any legal steps to prevent the defendant from diverting the water (although there had been correspondence between counsel, and defendants had promised to pay plaintiff’s claim for damages but had not done so), and had allowed defendants to expend large sums in that behalf, plaintiff was guilty of undue laches and had lost his right to an injunction, especially as his injury could be compensated in damages.</p> <p>5. The plaintiff’s damages should be computed by capitalizing the $75 per annum, found tobe the amount of his annual damage, and adding thereto the amount due him at this rate from 1875 until this proceeding was brought; and a decree should be entered accordingly and all costs paid by the defendant.</p>

<p>ERROR TO THE COURT OF COMMON FLEAS OF CHESTER COUNTY.</p> <p>No. 174 July Term 1888, Sup. Ct.; court below, No. 28 October Term, 1885, C. P.</p> <p>On September 7, 1885, P. Cleary issued a writ of foreign attachment in debt, against T. B. Evans and Mary A. Evans his wife, with whom he joined John J. Pinkerton et al., executors of John Todd deceased, to attach a legacy held by said executors for Mary A. Evans under the will of John Todd, her father. The cause of action was a transcript of the judgment of a justice of the peace of Illinois, obtained against Mrs. Evans for necessaries, more than six years before, by the plaintiff, both plaintiff and Mrs. Evans being at the time residents of Chicago.</p> <p>On May 8, 1886, Mrs. Evans took a rule to quash the writ on the ground that § 1, act of July 27, 1842, P. L. 486, authorizing the attachment of legacies by foreign attachment, provides that the act, “shall not extend to legacies and distributive shares of married women.” The court discharged the rule on the ground that the act of April 11,1848, P. L. 536, securing to a married woman the enjoyment of her separate estate, but subjecting it to seizure for her debts contracted for necessaries after her marriage, authorized such attachment; exception.1</p> <p>On the trial, the plaintiff moved to amend the record by striking out the names of T. B. Evans and his wife and substituting the name of Mary A. Evans. Motion granted and record so amended; exception.5</p> <p>The plaintiff offered in evidence a transcript of the justice of the peace of Cook county, Illinois, in the suit of P. Cleary against Mary A. Evans, certified under the certificate and seal of the clerk of the court and verified by the county judge, showing a judgment against Mary A. Evans for $69, and $5.05 costs, entered August 4, 1877.</p> <p>Objected to, by defendant: 1. Because this is not the proceedings of a court of record in the state of Illinois; by the laws of Illinois the justice of the peace is not a court of record. 2. Because it is barred by the statute of limitations. 8. Because the laws of Pennsylvania have not been complied with in obtaining a judgment at the time this suit was brought, that is, in not bringing it against both husband and wife.</p> <p>By the court: Objection overruled; exception.4</p> <p>The plaintiff also put in evidence the following statutes of Illinois.</p> <p>oír. 68.</p> <p>Sec. 6. Contracts may be made and liabilities incurred by a wife, and the same enforced against her, to the same extent and in the same manner as if she were unmarried, but except with the consent of her husband she may not enter into or carry on any partnership business unless her husband have abandoned or deserted her, or has become insane or is confined in the penitentiary.</p> <p>Sec. 15. The expenses of the family, and the education of the children, shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor; and in relation thereto they may be sued'jointly or separately.</p> <p>ch. 88.</p> <p>Sec. 16. Actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidence of indebtedness in writing, shall be commenced within ten years next after the uause of action accrued, but if any payment or new promise to pay shall have been made in writing of any bond, note, bill, lease, contract, or other written evidence of indebtedness, within or after the said period of ten years, then an action shall be commenced thereon at any time within ten years after the time of such payment or promise to pay.</p> <p>Sec. 5. All civil actions not otherwise provided for shall be commenced within five years next after the cause of action.</p> <p>Waddell, J., charged the jury and answered the points submitted by the defendant, as follows:</p> <p>This is what is called a foreign attachment. The defendant lives in the state of Illinois, and has property coming to her from her father’s estate in Chester county. The plaintiff in this action, learning that fact, and having a claim against her, issued an attachment attaching her interest in her father’s estate. He proceeded in the state of Illinois and obtained judgment against her for the sum of $69, with $5.05 costs; and he has sent that judgment to this state properly certified under the act of assembly, so as to make it evidence in our court. The defendant objects to this chiefly upon legal grounds, but has nothing to say against the fact as it is presented by the plaintiff. The defendant asks the court to say to you :</p> <p>1. The proceedings are in rem, or in rem et in personam, and the property attached being a legacy of the defendant, Mary A. Evans, who is a married woman, the verdict must be for the defendant.</p> <p>Answer: The court does not agree with the counsel for the defendant as to the law of the case, and therefore disaffirms this point.8</p> <p>2. Under tlie evidence, the verdict should be for the defendant.</p> <p>Answer: From the hasty examination which we have been called upon to give the questions here presented, we cannot join in that request, and must disaffirm that point.3</p> <p>The court differing with the counsel for the defendant in the law of the case, there is therefore nothing left but for you, under the instructions of the court, to render a verdict for the plaintiff for the amount of his claim.</p> <p>Verdict for plaintiff for $121.03, and judgment thereon; whereupon the defendant, Mary A. Evans, took this writ, assigning for error :</p> <p>1. The discharge of defendant’s rule to quash the writ.1</p> <p>2, 3. The refusal of defendant’s points.3 3</p> <p>4. The admission of plaintiffs’s offer.4</p> <p>5. The amendment of the record.3</p>

<p>FROM THE DECREE OF THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY, IN EQUITY.</p> <p>No. 16 July Term 1887, Sup. Ct.; court below, No. 6 July Term 1882, C. P.</p> <p>On May 16, 1882, a bill in equity was filed by tbe borough of Ashland against Frank S. Haupt and John Haupt, praying for an injunction to restrain the defendants from interfering with the water supply of the borough. The bill set out:</p> <p>1. Incorporation of the borough of Ashland under the provisions of the act of February 13, 1857, P. L. 36, its population at 7000, and the existence of manufacturing interests within its limits.</p> <p>2. The purchase by complainant in 1876 of a tract of 10 acres of land in Butler township, through which the Little Mahanoy creek flows, the construction of a dam on the land, and an appropriation and conveyance of water by pipes from the dam to Ashland, a distance of six miles, at the cost of $63,000.</p> <p>8. That the inhabitants and manufacturers of Ashland are largely dependent on the water so supplied, and that it is necessary for public purposes.</p> <p>4. That respondents, without legislative grant or franchise, are about to make provision by pumps, pipe, etc., to supply Frackville with water from the Little Mahanoy creek above the dam of complainant, which will irreparably injure the waterworks of complainants and endanger the safety and comfort of,, the inhabitants of Ashland.</p> <p>5. That the quantity of water flowing in the Little Mahanoy creek in dry seasons is not more than is needed by Ashland.</p> <p>6. That defendants have tendered no compensation for the damages, which diverting the stream as complained will occasion.</p> <p>An answer was filed, which acknowledged the purchase of the ten acres of land by the borough of Ashland, but denied that the water works were constructed in pursuance of any law, or that said borough could appropriate the water of the Little Mahanoy creek. The answer further alleged that the defendants were tenants in common of part of the land upon which the borough of Frackville was built; that the borough contained about 1700 inhabitants who were dependent upon the Little Mahanoy creek for water for domestic purposes; that the water had theretofore been carried by them from the creek, and the purpose of defendants was to convey it by pumping it into a reservoir from which it could be distributed. The answer further alleged the right of the defendants to do this, irrespective of any damage to Ashland, but denied that any damage would result to said borough.</p> <p>Issue having been joined, the cause was referred to Mr. D. O. Henning, as examiner and master. The facts found by him are fully stated in the opinions of the court below and of the Supreme Court.</p> <p>In October 1886, after having taken a large amount of testimony, the master filed his report, sustaining the bill and recommending an injunction as prayed, basing his recommendation chiefly on the ground of the interference with the plaintiff’s riparian rights which would result from the defendant’s works. On November 1,1886, the Mountain City Water Company, a private corporation which had succeeded to the rights and appliances of the defendants, filed a petition asking to come in as a party defendant, and the court made an order accordingly.</p> <p>Exceptions filed to the master’s report, after argument, were disposed of by the court, March 7, 1887, in the following opinion by Gheen, J.:</p> <p>The defendants have filed exceptions to the report of the master, and they have been argued at great length before me. It is not necessary that they should be reviewed seriatim.</p> <p>The question at issue is a most important one, and involves the interests of thousands of people. It affects the water supply of the borough of Ashland, after an expenditure of between $60,000 and $70,000, in the erection of a; reservoir and in laying the pipes to carry the water into the town. A vast amount of testimony has been taken, making a book of more than 850 pages of printed matter, and the master has made an able and elaborate report.</p> <p>The facts found by 'him, briefly stated are as follows: The borough of ■ Ashland was incorporated by act of assembly of February 13, 1857, and contains a population of between seven and eight thousand. The act of incorporation conferred upon it all the powers and privileges given under the general borough law of 1851; among others, the right to provide a supply of water for the use of the inhabitants. In 1876 a tract of land lying on the Little Mahanoy creek was purchased by the borough, and a dam or reservoir was constructed for the purpose of retaining the water. From this point trenches were dug and pipes laid a distance of about six miles to the borough, where it is in general use for domestic and manufacturing purposes. There is no other general supply. The amount of money expended by the borough was about $63,000.</p> <p>The defendants are the owners of a tract of land, known as the James Stephens tract, upon the same stream, near the head waters, and about a mile and a half above the reservoir of the plaintiff, and lying wholly or partly within the limits of the borough of Frackville. They have sold a large number of lots to different persons, on which houses have been erected, and the town of Frackville has become a place of considerable population. None of the lots sold lie on the stream, but are located upon much higher ground. For the purpose of supplying these lot owners and other residents of Frackville with water from this stream, the defendants commenced the building of a reservoir and laying of pipe. The water was to be forced up to a reservoir located upon higli ground, by means of a steam power, and be from thence distributed to those who were willing to pay the defendants for its use. .It was a private enterprise in which the defendants were engaged. The Little Mahanoy creek is but a small stream, and tbe master finds that in certain portions of the year, during the summer and dry seasons, there is not more than sufficient to supply the wants of the inhabitants of Ashland. The defendants, when notified to stop their operations, refused, claiming the right to use the water for the purpose aforesaid, and denying any superior right in plaintiffs to divert the water for the uses of the borough of Ashland. Thereupon this hill was brought for the purpose of restraining the defendants from carrying out their intention. These are the main facts of the case as found by the master, and from which he draws the following conclusions of law:</p> <p>1. That the plaintiff, in its purpose of providing a supply of water, had the right, under the law, to purchase the tract of land on the Little Mahanoy creek and to build a reservoir and water-works, even though the tract of land was outside the borough limits, being about six miles distant therefrom.</p> <p>2. That by reason of the ownership of said tract the borough acquired the rights of a riparian owner, and that the relationship of upper and lower riparian owners existed between the defendants and plaintiff in May, 1882* when the hill ■was filed.</p> <p>8. That the appropriation and diversion of this stream by the plaintiff could work no injury to any one but the lower riparian owners; therefore defendants could not complain of such diversion.</p> <p>4. That the defendants have all the rights of upper riparian owners, the same not having been extinguished by purchase of the plaintiff, but tliat these rights do not extend to the erection of water-works and furnishing water to those who are not riparian owners, to the detriment of the lower riparian owners.</p> <p>5. That defendants can claim no compensation, because they have been deprived of none of their rights to the use of the water.</p> <p>6. That the stream not being large enough to accommodate both parties, and the plaintiff having used all reasonable appliances, and having employed the best of professional skill to prevent the leakage and waste of water, it follows that the plaintiff has shown the better right, and that the defendants must be enjoined from their proposed illegal use of the water.</p> <p>The master has discussed these different propositions at length and with great ability, and has cited numerous authorities to sustain his conclusions. Whilst not dissenting from the conclusions to which the master has come, I cannot but think that he has placed the rights of the borough of Ashland upon entirely too narrow a foundation. It might work serious injury to the borough, if it only acquired the rights of a riparian owner, when it bought the tract of land and erected its water-works at an expense of upwards of sixty thousand dollars. As it strikes me, after considerable reflection, the question in this case does not turn upon the fact whether the borough of Ashland has acquired the rights of a riparian owner, and, therefore, only liable to the infra riparian owners for any diversion of the stream to supply the wants of the inhabitants of Ashland. Its right as a riparian owner would not authorize such diversion of the water, and the infra riparian owners would not be bound to accept compensation for the relinquishment of their rights to the use of the water. They might insist that the water should not be diverted, and might harass and annoy the borough by suit after suit, until the water was restored again to its original channel. Nor would the rights of the supra riparian owners be in any wise changed by reason of such diversion, if the borough has no larger right than that of a riparian owner; and if they should also divert the Avater to the injury of the borough, the question as to the injury, might turn upon the injury done to the borough as- a riparian owner, and not upon the injury done to the water-works and to the thousands of people dependent upon this supply of water.</p> <p>Therefore I think the right of the borough must rest upon higher and more secure ground than this. It must rest, not upon its riparian rights, but upon its rights of appropriation of the stream, for the purpose of obtaining a supply of water for the inhabitants of the town. That is, it must rest upon the right of eminent domain, if it has such a right. The main question in the case must therefore be, dicUthe borough have the right of appropriation under its charter.</p> <p>Under the general borough law of 1851, the borough of Ashland had the power “to provide a supply of water for the use of the inhabitants; to make all needful regulations for the protection of the pipes, lamps, reservoirs and other constructions and apparatus, and to prevent the waste of water so supplied.” By the 2d section of the same act, the borough had the power “to enter upon the lands and premises of any person or persons for the purpose authorized by this act, by themselves and their duly appointed officers and agents.” And to make this right of entry upon private lands to conform to constitutional requirements, it is further provided in the 27th section of the act, that “private property shall not be taken for the usé or purpose of the corporation, without the consent of the owners, or until just compensation shall be made therefor, according to the laws of this commonwealth.” Here then exists in the borough the power to provide a supply of water, and the power to enter upon lands for this purpose. From this follows, by necessary implication, the right of appropriation of a stream of water, or of a spring or springs, entirely independent of any riparian rights which may have been acquired by the purchase of land upon the stream. And another consequence naturally follows, that this power of appropriation is in its nature exclusive. I refer not to streams where the supply of water is ample for all, for in such cases there can be no contest. But in a stream which furnishes a supply only for one, and not enough for two, there the right is in the one who has first legally appropriated the stream, and is exclusive of all others. Prior in tempore, portior in jure. Disastrous indeed would be the situation in which the borough might be placed, if it could not base its right to the stream of water on this right of appropriation conferred by its charter. If unable to r'ely upon this, what would there be to prevent some other corporation, organized under the general act of 1874, from appropriating the water and cutting off the supply from the borough? Would it not be done, according to law, and would not the new corporation be the first legal appropriator ? What claim would the borough have to any damage, beyond what it might suffer as a riparian owner ? What would become of the many thousands of dollars expended in the erection of its water-works and connections, now become useless and valueless ? But it is needless to pursue this branch of the subject at any greater length. I have said this much, in order to show how important it is that the rights of the borough of Ashland should be placed ujion unassailable ground.</p> <p>There is no dispute as to the fact of the appropriation of the Little Mahanoy creek by the borough, nor that it was the first appropriator. The master has found as a fact that the sujpply of water in certain seasons of the year is scarcely sufficient for the wants of the inhabitants of the town, and that the complainant has been prudent and careful in building its works so that there shall be no unreasonable leakage or waste.</p> <p>Under such a state of facts the .plaintiff is clearly entitled to an injunction against the defendants to prevent them from diverting the water from its usual channel, to the injury of the complainant. But this further fact appears, that whilst the complainant has appropriated the stream for its own use, yet the rights of the defendants as supra riparian owners have not been extinguished. The complainant has not made compensation for them, and the defendants have still full power to exercise them. But as has been fully shown by the master, those rights do not extend to the furnishing of the water to the inhabitants of Frackville and others not riparian owners, at the expense of the inhabitants of Ashland, and therefore an injunction must issue to restrain such misuse of the water. The form of the injunction recommended by the master is too broad in its terms, because it seems to ignore the riparian rights of the defendants which have not been divested.</p> <p>It has been most vigorously contended that the inhabitants of the borough of Frackville have rights to the water of this stream which cannot be ignored, because the right to water is a God-given right, of which they cannot be deprived, and because the stream flows within the limits of the borough, and almost within a stone’s throw of their very doors. But if lio other answer were given, it would be sufficient to say that they are not before us, and the defendants cannot shield themselves under any supposed rights they may have, for those rights are not acknowledged by the defendants, inasmuch as they make them pay for all the water they use. It is also clear that under the principles governing this case they have no right to the use of this water superior or equal to those of the complainant.</p> <p>We shall therefore direct a permanent injunction to issue against the defendants, their employees, and agents, in accordance with the views herein expressed, and direct that the defendants pay the costs of this proceeding. Let a decree be prepared and submitted.</p> <p>The court then entered the following decree:</p> <p>And now, to wit, March 7, 1882,.....it is ordered, adjudged and decreed that the respondents, Frank S. Haupt and John Haupt, their agents, employees and workmen be perpetually enjoined and restrained from placing any obstruction in the Little Mahanoy creek at or near Frackville above the dam and reservoir of the complainants, thereby obstructing the flow of said stream, and from diverting the natural flow of the water of said creek and any of its tributaries at any place or point above the dam and reservoir of the borough of Ash-land erected on said creek, and that the respondents, Frank S. Haupt and John Haupt, pay the costs of this case.</p> <p>The defendants thereupon took this appeal, assigning the said decree for error.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY.</p> <p>No. 14 July Term 1888, Sup. Ct.</p> <p>On July 24, 1887, J. Monroe Boyer brought assumpsit against the county of Schuylkill, declaring for the recovery of fees as sheriff of the county from the first Monday of January, 1888, until the first Monday of January, 1886, his entire term of office. Issue.</p> <p>At the trial on November 30, 1887, it was shown that for his official services, chargeable to the county during his term, the plaintiff had settled annually with the county commissioners, according to the sheriff’s fee-bill under the act of June 12, 1878, P. L. 187, which act on Ajjril 12, 1886, in Morrison v. Bachert, 112 Pa. 322, was declared unconstitutional. He then brought this suit to recover the difference in amount in the fees allowed by said act and those allowed by the act of April 2, 1868, P. L. 3.</p> <p>The services being proved and the other testimony in the cause received, the court, Green, J., charged the jury: ■</p> <p>[Gentlemen of the jury, we have already said we think under all the evidence in this case that the plaintiff is entitled to a verdict. It appears that this was a mutual mistake that arose by reason of the passage of a law in 1878 fixing the fees of the sheriff in certain cases, and making it less than it was under a previous fee-bill.]1 For instance, under the act of 1878 tire sheriff’s fees in each criminal case was fixed at one dollar. Under the act of 1868 it had been $1.25. For summoning jurors to the court under the bill of 1868 it was fixed at thirty cents, and under the act of 1878 it was reduced to twenty-five cents; also with regard to commitments and capias there was a slight reduction in each one of these cases under the act of 1878.</p> <p>When the sheriff presented his bills to tho county commissioners for these different criminal cases and others, his bill was presented based upon the act of 1878, which was therefore less than it would have been if it had been made out under the act of 1868, and the county commissioners paid these hills according to the act of 1878; but after the sheriff wont out of office, upon a ease taken to the Supreme Court of this state, that court declared the law of 1878 unconstitutional, null and void, and the effect of that was to declare the act of 1868 still in force. Therefore the sheriff made out his hill under a wrong impression as to the law; and, instead of making out his hills in criminal cases for one dollar he should have made them out for $1.25, and so with regard to the other cases; and this suit was brought here for the purpose of recovering from the county the difference in the hill that he made out and the bill he should have made out under the act of 1868. That difference, according to the testimony in this case, undisputed, would amount to $659.40. There were some eight cases in which no fees at all had been paid and which it is admitted on the part of the defendant the sheriff would be entitled to recover. In all the other eases the hill is made out upon the theory that the sheriff should have been paid according to the fee-bill of 1868 and not according to the fee-bill of 1878.</p> <p>[The question has arisen here as to whether the sheriff is estopped from making out his bill according to the fee-hill of 1868, because he presented his bill under the fee-bill of 1878 and accepted his pay under that bill, and therefore is estopped from claiming any further amount of money; but we say to you, for the present, that that will not estop him from making his claim for the balance of the fees according to the act of 1868, and for that reason he is entitled to recover in this suit the difference between the amount that he received, and the amount that he should have received, if the bill had been made out according to the fee-bill of 1868. That, according to the testimony, amounts with the eight cases I have spoken of to 1659.40, and the sheriff would be entitled to demand interest on this amount from the time that he made demand for his fees, and if there is no proof here of any prior demand it would be interest from the time of the institution of the suit, I presume.] 3</p> <p>[As I have said before, there is no dispute as to the different items of this claim and the interest is now reckoned upon this claim from the time of the institution of the suit, because the institution of the suit shows that demand is made for the money. The amount for which the plaintiff would be entitled to a verdict, would be f689.06, and we direct a verdict, if you find that amount, with interest to be correctly calculated. I presume there is no difficulty about that.]3</p> <p>The jury returned a verdict in favor of the plaintiff. Judgment having been entered, the defendant took this writ, assigning as error:</p> <p>1-3. The parts of the charge embraced in [ ] 1 to 3</p>

No. 297 January Term 1888, Sup. Ct.; court below, No. 1, Equity D., 1887, C. P. in Equity.

Nos. 151, 152 January Term 1889, Sup. Ct.; court below, Nos. 396, 402 May Term 1887, C. P. To the term and numbers in the court below, separate actions of trespass wore brought by Emma Goldstein and Nathan Jacobs, against the Delaware & Hudson Canal Co., to recover for damages to the premises of the plaintiffs respectively, caused by an' overflow of water from the defendant’s basin, into said premises, owing to the alleged negligence of the defendant.

<p>1. Tn au action against a railroad company to recover damages for the death of an employee resulting from an accident due to the alleged negligence of the company, evidence, on the part of the plaintiff, of declarations as to defects in the engine, made by officers of the company after the accident, and not in contradiction of prior testimony of such officers, are not admissible.</p> <p>2. Where evidence lias been improperly received, which tends to prejudice the minds of the jury, and motions made to strike it out at or before the close of the testimony are refused, a direction to the jury in the general charge to disregard fhe evidence, and a withdrawal of it from their consideration, comes too late and does not cure the error of admitting it.</p> <p>(a) The accident in this ease resulted from tlie engine leaving the track while rounding a curve. Evidence was introduced to show the defective construction of the track: certain witnesses, who examined the track 33 days after the accident, testified to slight variations in .the degrees and lines of the curves, and others, that the ballasting of the track was defective. There was no evidence, however, that either of these defects caused the accident.</p> <p>3. The evidence referred to did not establish such negligence on the part of the company as warranted a recovery against it for the death of an employee: had the person killed been a passenger, the burden would have been upon the company to rebut the presumption of negligence raised by the evidence, hut an employee must affirmatively prove such negligence as violates the special and limited duty of his employer.</p>

<p>1. Where the execution of an instrument has been obtained by means of a fraud, or where there is an attempt to make a fraudulent use of it, in violation of an agreement made at the time of its execution and without which it would not have been executed, parol evidence is admissible to prove the agreement, though contradicting the terms of the instrument.</p> <p>2. Evidence to be admissible, in this class of eases, must be clear, precise and indubitable; — not in the sense that there must be no opposing testimony, but in the sense that the evidence must carry a clear conviction of its truth and be sufficient in weight to move the conscience of a chancellor to reform the instrument.</p>

<p>3?ROM THE DECREE OF THE COURT 03? COMMON PLEAS OE BERKS COUNTY.</p> <p>No. 362 January Term 1888, Sup. Ct.; court below, No. 3 September Term 1886, G. P.</p> <p>On September 13, 1886, judgment was entered to the number and term of the court below, noted above, in favor of George Brooke against Daniel N. Kemmerer and Henry Kemmerer, upon a bond dated May 12, 1832, for $8,000 payable in three years. A fieri facias being issued the same day, a levy was made by the sheriff on a parcel of land in Alsace and Oley townships, containing 43 acres, as of the estate of Daniel N. and Henry Kemmerer. An inquisition was then held, upon notice to the defendants, the land condemned, the sheriff’s return approved, and on November 36, 1886, a venditioni exponas issued.</p> <p>On December 10, 1886, the defendants presented a petition representing:</p> <p>That they reside in Alsace township, Berks county, Pa. That heretofore, on or about May 12, 1882, the said Daniel N. Kemmerer was the individual owner of a large quantity of real estate, located in the comity of Berks, consisting of messuages, tenements and tracts of farm land and some woodland. Said Daniel N. and Henry Kemmerer also owned together an undivided messuage, tenement and tract of land, situated in Alsace township, known as the Homestead tract, containing 82 acres, 114 perches.</p> <p>On said May 12, 1882, said Daniel N. Kemmerer obtained a loan of $30,000, through Kendall Brothers, real estate brokers, of Reading, Pa., for which a mortgage was given by him and the said Henry Kemmerer to George Brooke, Annie M. Brooke, widow of Edward Brooke, and George Brooke, guardian of the minor children of Edward Brooke, securing the payment of said sum with interest in three years by virtue of three bonds and warrants as follows, to wit:</p> <p>One bond and warrant to Annie M. Brooke, widow, for the payment of $7,000, etc.; one bond and warrant to George Brooke, guardian of Edward Brooke’s minor children, in the sum of $15,000, etc., and one bond and warrant to George Brooke, in the sum of $8,000, etc. The payment of said sums was secured in said mortgage on all the real estate aforesaid owned by said Daniel N. Kemmerer and therein particularly described, and on the said Homestead premises of 82 acres, 114 perches, also, owned by said Daniel N. Kemmerer and Henry Kemmerer in common. Said Henry Kemmerer joined in the said mortgage as a mortgagor, pledging his interest in said Homestead premises, as a bail and further security for the payment of said $30,000 so loaned to said Daniel N. Kemmerer. In the warrant filed in the prothonotary’s office, as part of the said bond held by said George Brooke against these petitioners, obligors therein and mortgagors as aforesaid, for the payment of said sum of $8,000, entered to No. 3 September Term 1886, is contained the following proviso, reservation and stipulation:</p> <p>“ The said Henry Kemmerer joins in this warrant and in the accompanying bond and mortgage in order that his interest in the Homestead of 82 acres, 114 perches, in Alsace township, may be liable for the payment of the aforesaid principal sum of $8,000, but it is understood that this warrant is to be inoperative as to the other estate of the said Henry Kemmerer.”</p> <p>Said mortgage was duly entered of record in the recorder’s office of Berks county, on said May 12, 1882, in Mortgage Book 46, p. 413, and said warrant accompanying the bond secured by said mortgage was quite lately duly filed in the prothonotary’s office aforesaid, on September 13,1886, to No. 3 September Term 1886, as a confession of judgment therein for said amount against both these petitioners.</p> <p>At the time of the filing of said warrant it will appear, by the affidavit of said George Brooke, plaintiff therein, attached thereto, that the aforesaid bond of $7,000, held by said Annie M. Brooke, has been fully paid; that the greater part of the other bond, held by said George Brooke, guardian, etc., has also been paid, and that no part of the principal of said $8,000 bond, with interest from November 1, 1884, has been paid, and that same is now due and payable.</p> <p>That heretofore, on May 30, 1884, said petitioners were induced, by false and fraudulent representations, as they allege, to convey all their real estate, mentioned and described in the aforesaid mortgage, including the said Homestead premises and all their personal estate, to one Joseph Y. Kendall for a nominal consideration of one dollar, in trust, among other things, to sell and dispose of said real and personal estate, etc., pay the liens in order of their priority, etc.</p> <p>Said Joseph Y. Kendall afterwards sold of said real estate and persona], for a large sum of money, to wit, altogether amounting to $45,000 or more. The aforesaid mortgage, entered in Mortgage Book 46, p. 413, was the first lien on all of .said real estate therein mentioned and described. As the said Kendall, trustee, would sell a portion thereof to the different purchasers, he, the said George Brooke, lien creditor as aforesaid, would release the lien of his said mortgage securing the aforesaid land, the said Kendall, trustee, thereupon securing the full purchase money. Subsequently said Kendall, trustee, sold a large and valuable portion of said real estate to one George W. Harrison, for the sum of $21,950, as appears by the deed of said Kendall and wife, to said Harrison, dated April 25, 1885, recorded Deed Book 1G1, p. 587. To said deed is appended the receipt of said Kendall for said consideration. Petitioners are informed and believe same to be true, that throughout the whole of said trust transactions of said Kendall, he, the said George Brooke, recognized the action of said Kendall, trusteeco-operated with him in enabling him to make title to purchasers of said land by releasing his lien of mortgage, as aforesaid, and permitted him, said Kendall, trustee, to pay some of the money so received thereby to different parties, lien creditors, not superior to his lien. He was also cognizant of the fact that said Kendall, trustee, had so as aforesaid sold real estate to said Harrison, and permitted same without objection, with the understanding' and agreement, as petitioners are led to believe, that said tinnsaction was for his benefit, that his said lien claim would be j>a.id out of the proceeds of said transaction, and well knew that said fund would be more than sufficient to pay him his lien claim in full; yet, notwithstanding the aforesaid, and the fact that said Kendall had so as aforesaid sold real estate and received more than sufficient money to pay his said lien and claim, he, the said Brooke, on September 13, 1886, caused his said bond and warrant to be entered in the Court of Common Pleas, to No. 3 September Term 1886, J. D., in the amount of $8,000 with interest from November 1, 1884, thus making it an additional lien with said, mortgage against all the real estate owned and possessed and claimed by the said Daniel N. Kemmerer and Henry Kemmerer.</p> <p>On said September 13, 1886, said George Brooke caused a writ of fieri facias to be issued out of your said court, based on said judgment lien, and caused the sheriff to levy, by virtue thereof, on the aforesaid Homestead premises of 43 acres, 114 perches, in Alsace township aforesaid. At the time of the issuing of said fieri facias said Daniel Kemmerer had in his possession and ownership, in and about said premises, a large quantity of valuable personal property, goods and chattels, etc. The sheriff neglected and failed to serve said writ of fieri facias on either of said Kemmerers; in fact did not go on the premises to seek for any personalty whereon to levy, but made return thereto as follows: “ The defendants, having no goods or chattels whereof I could cause the money within mentioned, or any part, to be levied, on September 14, 1886, I levied on the within described real estate,” etc., etc. Petitioners aver that from inquiry made of the sheriff and his deputy, since the aforesaid return made, and their refusal to give any information regarding the same, that the said sheriff made his aforesaid return and levy on real estate by direction of the attorneys of said George Brooke. Subsequently a writ of venditioni exponas, issued to No. 12 December Term 1886, E. D., and said Homestead premises of 43 acres, 114 perches, lias been advertised to be sold at sheriff’s sale on December 11, 1886.</p> <p>. Petitioners thus showing that the said George Brooke .....in the face of the foregoing facts, by the entering of his lien of judgment, No. 3 September Term 1886, J. D., and his subsequent proceedings by fieri facias venditioni exponas and sheriff’s sale, is endeavoring to obtain the full amount of his said claim of ©8,000 with interest from November 1, 1884, by a sale of the said Homestead premises of 43 acres, 114 perches, whereof the said Henry Kemmerer is half owner, being but a portion of the real estate covered by the said mortgage lien of ©30,000, and but a portion of the real estate as aforesaid conveyed to said Kendall, trustee, for the purposes aforesaid, and but a portion of said real estate remaining unreleased from the lien of said mortgage and so as aforesaid sold by said Kendall, trustee, to said Harrison, with the knowledge, consent of and understanding with said George Brooke that the same was so sold and he should be paid out of the proceeds.</p> <p>Petitioners aver that they verily believe the said Joseph Y. Kendall, trustee, has realized sufficient funds under said trust to fully pay the said George Brooke his full claim and interest, and that upon his rendering a true statement and account, such will appear to be the fact. That he has been required to so account by equity proceedings, instituted in your court, sitting in equity, September 7, 1886, but so far he has not accounted. That under the circumstances and the foregoing facts and allegations it would be against right, equity and conscience to permit the said George Broolce to proceed in the premises.</p> <p>Petitioners, therefore.....pray your honor to grant them a rule to show cause why the said judgment, No. 3 September Term, 1886, J. D., should not be opened and these petitioners be let in to make a defence thereto; to stay said venditioni exponas proceedings; and in the meantime to grant such further and equitable relief as to your honor may be deemed proper and necessary.</p> <p>The venditioni exponas was stayed for the time being, and a rule was granted upon the foregoing petition.</p> <p>Depositions were then taken on the part of the petitioners. George W. Harrison, being called, testified in substance, that he did not pay to Mr. Kendall any part of the $21,950, the consideration of the conveyance of April 25, 1885; that Mr. Kendall, in offering to convey the property to him did it with a view, as he said, of expediting the settlement of the affairs of the Kemmerers; that Mr. Kendall “ added that, in the present condition of affairs, at that time, he could not dispose of the properties, as he found Daniel Kemmerer to be very troublesome, interfering very materially with the sale, so much so that he could not find a purchaser, and for the benefit of all concerned he thought it for the best to have the properties deeded to another party, sold to another party, and from them conveyed to such parties as he could sell to afterwards.” Other testimony taken is sufficiently indicated in the opinion of the court below, and in the opinion of this court.</p> <p>On January 25, 1888, after argument, the court, Ermentrout, J., filed an opinion which, after stating the matters connected with the execution and delivery of the mortgage and bonds, the recording of the mortgage, the entry of judgment on the bond in favor of the plaintiff, and the issuance of the writs from the judgment, etc., proceeded:</p> <p>The petition might well be dismissed as coming too late without any discussion of its merits.</p> <p>By the terms of the bond the Homestead was liable for the debt, and is, primarily, the fund to which other creditors of defendants could compel Brooke to first resort for payment. What then is the contention of defendants, as shown by the depositions and documentary evidence submitted to the court ? Many of the material allegations in defendant’s petition are not sustained by the facts. The court can find no evidence from which defendant’s first allegation, to wit: of fraud, is maintainable, or anything reflecting upon the character of the gentlemen assailed. These very persons have been made the defendant’s witnesses and they are bound by their testimony. Neither fraud nor want of consideration appears; even Daniel Kemmerer in his deposition does not swear to any fraud. The next contention is that on May 30,1884, Daniel and Henry Kemmerer made a deed to Joseph V. Kendall for various properties described in the mortgage, as well as for all their personal property, and that at the same time Kendall made a declaration of trust to sell and dispose of the same for the benefit of creditors as therein specified; that, therefore, the transaction was a deed of assignment for the benefit of creditors and that, the bond and warrant having been entered subsequently to such deed of assignment, no execution thereon was permissible. Whilst we are of opinion, under the authority of Johnson’s App., 103 Pa. 376; Watson v. Smith, 12 Pa. 164; Beans v. Bullitt, 57 Pa. 229, that the transaction was, in legal effect, a deed of assignment for the benefit of creditors, and whilst the ordinary entry of judgment upon a bond, under such circumstances, confers no right of execution, the fact that this bond and warrant are secured by mortgage, duly recorded previous to such deed of assignment, has been overlooked. The lien of said judgment relates back to the date of the mortgage, and, therefore, the lien being prior to the date of assignment for benefit of creditors, the right to issue execution must prevail. In the case of McCall v. Lenox, 9 S. & R.. 302, it was held that “ if a bond and warrant of attorney are given accompanying a mortgage, a sale of the land under a fieri facias and venditioni exponas, issued on the judgment entered upon the warrant, avoids a lease made by the mortgagor after the mortgage, but before the entry of the judgment on the warrant. In the case of Bury v. Sieber, 5 Pa. 431, a deed of conveyance made part of the purchase money a lien upon the land. A bond was issued for the same amount, a reference to the bond appearing in the deed. Upon this bond judgment was obtained and the premises sold at sheriff’s sale. It was held that the purchaser at sheriff’s sale took a clear title, notwithstanding that the original purchaser sold the land and the judgment was not obtained until after his so selling, because the lien of the judgment related to the date of the lien in the deed. So, too, in the case of Commonwealth v. Wilson, 34 Pa. 68, it was held that there is a clear union between the mortgage and the judgment on the bond, and the lien of the judgment necessarily relates back to the date of the mortgage. The right of the execution creditor to sell, cannot be defeated upon this ground.</p> <p>The next contention is that the assignee, Kendall, sold a few tracts of land, and that Brooke, at his request, released the premises sold from the general lien of the $30,000 mortgage. The answer is that by the declaration of trust the actions of Kendall in the settlement and payment of claims were expressly made binding upon the grantors. A mortgage creditor has a right to execute such releases. The release prejudiced no one; the proceeds of the sale were mainly paid over on account of the bonds mentioned in the $30,000 mortgage, and, to make the sales and the title clear of incumbrance, Kendall had to pay part of a second mortgage held by Kutz, and also a dower. The moneys Brooke received paid Mrs. Brooke in full and the guardian bond in part. The transactions complained of were strictly necessary in carrying out the trust. It does not lie in the mouths of the defendants to find any fault on this account.</p> <p>The next contention is that on April 25, 1885, Kendall conveyed to George W. Harrison, by deed, all the assigned estate then remaining unsold, for the alleged consideration of $21,900, which covered the sum total of the liens unpaid, and that because Brooke knew of the transaction and did not object, his remedy is against the assignee. But the evidence shows that no consideration passed for this deed, and that Kendall found great difficulty in making sales on account of Kemmerer’s interference with him; that to facilitate the trust the property was deeded to Harrison, and a sale could be made by Kendall; Harrison was to transfer to purchasers; that up to the time of the present proceedings but $3,300 worth of property had been sold, and the money was properly appropriated in carrying out the trust. That more property was not sold seems due to the opposition of Kemmerer, who pronounces the deed a fraud and interferes with the carrying out of the trust. Defendants ought not to be permitted to impeach this deed, and Daniel Kemmerer does in his testimony and at the same time charge the assignee with the proceeds of the sale, and asks creditors to claim the fund. Nowhere is it shown by the depositions that plaintiff has been hard, or that he assented to any agreement to yield his right of lien, or execution, or look to anything but the land for payment, and the evidence shows that all the land will be needed to pay the debts of the grantors.</p> <p>The defendants allege that even the deed of May 30, 1884, was obtained by fraudulent representation. If this were so, and the deed set aside, the whole conteiition of the defendants would fall, and the right of execution by plaintiffs could not be questioned.</p> <p>All the facts submitted fail to show any ground for interference. We, therefore, discharge the rule, and permit plaintiff to issue the necessary process of execution.</p> <p>The defendants then took this appeal and also a writ of certiorari, but declined to enter into recognizance in double the amount of the judgment. The plaintiff then caused an alias venditioni exponas to be issued, whereon a sale of the land was had, the proceeds being ordered into court to await the determination of this appeal. Specifications of error were filed, in this court, to the order discharging the rule to show cause why the judgment complained of should not be opened, and the defendants be let in to make a defence thereto, etc.</p>

<p>(а) In an action against a constable for a wrongful levy upon and sale of a wagon, claimed to be the property of the plaintiff and not that of the execution debtor, it appeared that the wagon, in the custody of a bailee, had, prior to the levy, been first sold by the execution debtor, and again sold by his vendee to the plaintiff, the bailee being notified of the sales, and that the levy had then been made upon it in the hands of the bailee.</p> <p>(б) On the trial the constable, defendant, offered to prove by the first vendee, that at the time he bought he knew that the owner was being pressed by creditors; that the witness induced the plaintiff to buy the wagon; that the plaintiff knew the money which he paid therefor would go to the original owner, and that there was a conspiracy between the debtor, his vendee and the plaintiff to defraud the execution plaintiff.</p> <p>1. In such case, the question was as to the existence of actual fraud, and, as the plaintiff was alleged to be a party to a conspiracy, and as the witness was a party to both of the sales and know the facts, it was competent to examine him with particularity as to the several transactions, and the evidence should have been admitted.</p>

<p>FROM THE DECREE OK THE COURT OK COMMON PLEAS NORTHAMPTON COUNTY. OK</p> <p>No. 86 January Term 1889, Sup. Ct.; court below No. 4 June Term 1888, C. P. in Equity.</p> <p>On June 6,1887, tbe Germania Life Insurance Company filed a bill in equity against Andrew J. Brown, and Ellen Sabina Staats, Wilson A. Sandt, Owen F. Sandt, Lizzie Sandt, Emily Miller, Fannie Sandt, and Daniel Sandt, defendants.</p> <p>The bill averred, formally, the following facts :</p> <p>That the plaintiff company was incorporated under the laws of New York, and on September 30, 1865, issued a policy of insurance on the life of Daniel P. Sandt for $2,000, payable in case of his death to his wife Diana, and in case of her death before his, to her children; that on December 21, 1875, Daniel P. Sandt and Diana Sandt assigned said policy to Andrew J. Brown; that Diana Sandt died on February 19, 1884, leaving to survive her the persons named in the bill as defendants, other than Andrew J. Brown; that the sum due April 23, 1888, according to the terms of the policy ivas $2,000, with a dividend amounting to $136.12; that the plaintiff had received notice from the other defendants not to pay the said amount due to said Andrew J. Brown, and was threatened with suits at law by the said defendants to recover the money due on said policy; praying, therefore, to be permitted to pay the money into court and “ that the said defendants be decreed to interplead together, and that it may be ascertained, in such manner as the court shall direct, to which of them the said money so held by your orators belongs and ought to be paid,” etc.</p> <p>Appearances having been entered for the several parties, separate answers were filed by the defendants. The answer of Andrew J. Brown averred, inter alia, that the policy of insurance had been assigned to him at Easton, Pa., on December 21, 1875, a copy thereof attached containing the paragraph set out in the opinion of the court below. The answer of the co-defendants averred that the assignment was ineffective as to them, and that they were entitled to the amount due on. -the policy.</p> <p>An interpleader having been ordered, wherein Andrew J. Brown was made plaintiff in the issue, and the amount due on the policy having been paid into court, on October 1,1888, after argument upon the bill and answers, the court, Schuyler, P. J., filed the opinion following:</p> <p>On September 30, 1865, the plaintiff company issued to Diana Sandt a policy of insurance on the life of her husband, Daniel P. Sandt, for $2,000. The policy contained the following clause:</p> <p>“ And the said company do hereby promise and agree to and with the said Diana Sandt well and truly to pay or cause to be paid the said sum assured to the said Diana Sandt for her sole use, in conformity with the statute in such case made and provided, within sixty days after due notice and proof of death of Daniel P. Sandt; and in case of the death of said Diana Sandt before the decease of the said Daniel P. Sandt the amount of the said insurance shall be payable after her death to her children for their use, or to their guardian if under age.’’</p> <p>The consideration of this undertaking on the part of the company was the payment by Diana Sandt of certain premiums, the last of which was to be paid on or before the 30th of June, 1875, and all of which were paid in accordance with the terms of the policy. On December 21, 1875, by writing under seal, in which her husband joined “ to show his concurrence,” Diana Sandt assigned the policy to Andrew J. Brown, one of the defendants in the present bill. Diana Sandt died in the year 1884, leaving to srrrvive her seven cliidren who are the other defendants in the bill. Daniel P. Sandt died the present year. The subject of controversy is the $2,000 insurance money mentioned above, and the rights of the respective claimants of this fund turn upon the question as to the validity of the assignraent of the policy by Diana Sandt to Andrew J. Brown. A subsidiary question is whether or not the policy of insurance is a NewYork or Pennsylvania contract.</p> <p>In contracts for insurance the rule is that the place of acceptance of the proposals for insurance is the place of the contract : May on Insurance, § 66. The Germania Life Insurance Company is a corporation of the state of New York, having its home office in the city of New York. So far it appears this company has no branch office anywhere. It is not pretended that the company ever delegated its right to accept or reject proposals to any one. It follows, in the absence of any direct evidence one way or the other on the subject, that in the case at bar the proposals must have been accepted in the state of New York, which, as has been seen, makes the consequent policy a New York contract.</p> <p>This much being established, and bearing in mind that the assignment in question was made December 21,1875, what remains for decision is free from difficulty. In Frank v. Mutual Life Ins. Co., 3 Cent. R. 414, it was expressly decided by the New York Court of Appeals, that an assignment made in 1869 by the wife, of a policy of insurance held by her upon the life of her husband, was absolutely void. In delivering the opinion of the court in that case, Rapallo, J., says: “In 1873 the doctrine of those cases,” referring to many previous decisions to the same effect as the principal case, “ was recognized by the legislature by conferring upon married women the power to assign their policies, when they had no children, on complying with certain formalities: Laws of 1873, chap. 341; and in 1879 full power to assign was conferred upon them without those conditions, provided the husband consented to the assignment: Laws of 1879, chap. 248.” We make this citation for the purpose of pointing out the difference between Frank v. Mutual Life Ins. Co. of N. Y., 55 Am. Rep. 809, and the case of Anderson v. Goldsmidt, 5 Cent. R. 787, so much relied on by the learned counsel for Mr. Brown. In the latter case the assignment was made after the act of 1879, and was sustained for that reason. In the former case, as in the case at bar, the assignment was made before the act of 1878, and it was declared void for that reason. For the same reason the present assignment must be declared void.</p> <p>And now, October 1, 1888, it is ordered that the fund in controversy be paid to the children of Diana Sandt, to wit: Ellen S. Staats, Wilson A. Sandt, Owen F. Sandt, Lizzie Sandt, Emily Miller, Fannie Sandt, and Daniel Sandt, the shares of Fannie and Daniel Sandt, to be paid to their guardian, less the cost of this proceeding, which it is ordered shall be paid out of the fund.</p> <p>The final decree having been entered, Andrew J. Brown took this appeal, assigning for error the awarding of the fund in controversy to the children of Diana Sandt.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE NORTHAMPTON • COUNTY.</p> <p>No. 175 January Term, 1889, Sup. Ct.; court below, No. 5 August Term 1888, C. P.</p> <p>On June 12, 1888, Eugene L. Shafer brought an action of assumpsit against Caroline Sensemau, executrix of Comenius Senseman, deceased, upon the following instrument:</p> <p>“ Nazareth, March 29, 1875.</p> <p>“ Six months after the date when Eugene L. Shafer loses his situation as teacher at Nazareth Hall, I promise to pay to said Eugene L. Shafer the sum of three thousand dollars without defalcation for value received. Provided that the said Eugene L. Shafer loses said situation at any time after the date of this note and previous to the date of my second marriage. Tn the event of the decease of my daughter Jennie Shafer, before the said Eugene L. Shafer loses said situation this note shall he null and void. Witness my hand and seal.</p> <p>Witness present, C. Senseman. [l. s.J</p> <p>Solomon Shafer.”</p> <p>At the trial on December 3, 1888, the plaintiff’s evidence showed the following facts: Shafer was the son-in-law of Senseman, and his wife, Jennie Shafer, was Senseman’s only child. When the instrument was given, Shafer and his wife were living with her father at Nazareth, Shafer being a teacher at Nazareth Hall. Anticipating a second marriage by his father-in-law, which would be disagreeable to i>laintiff and his wife, the former procured the appointment of superintendent of the Moravian schools at Bethlehem, at a salary of $1,200, and house rent. Senseman wished the plaintiff and his wife to remain with him, and upon being advised of the plaintiff’s appointment executed the instrument in suit, whereupon the plaintiff, on April 6, 1875, declined the Bethlehem appointment and retained his old position.</p> <p>On July 11, 1876, Senseman was married, however, and at the end of the summer term, June 29, 1876, the plaintiff, anticipating the marriage, resigned his position at Nazareth and took a position as teacher at the Moravian school, Bethlehem, at a salary of $900. Plaintiff claimed that the pressure of Sense-man’s impending marriage, which was exceedingly distasteful to his wife and to himself, compelled him to resign his situation at Nazareth. He therefore contended that he had proved the conditions upon which the payment of the obligation depended, to wit: (1) He lost his situation at Nazareth after the date of the instrument; (2) He lost it prior to the second marriage of Senseman; (3) His wife, Jennie Shafer, was living at the time of the trial.</p> <p>Plaintiff also called witnesses who testified to declarations of Senseman (who had died in December, 1887), after the instrument was executed, that he had given it in consideration of the plaintiff’s declining the position at Bethlehem and with his wife remaining at Nazareth.</p> <p>At the close of. the plaintiff’s testimony, the defendant .moved for a compulsory nonsuit, upon the grounds that there was no proof that the plaintiff had lost his situation as teacher at Nazareth Hall, and that the contract .was void, because in restraint of marriage.</p> <p>Upon this motion, the court, Reeder, J., delivered the following opinion:</p> <p>This is a suit upon a contract brought by the plaintiff in this, action, against the executrix of Comenius Senseman, deceased. t The decedent executed the note in suit upon which the plaintiff seeks to recover. He agrees by this obligation to pay the plaintiff, Eugene Shafer, the sum of three thousand dollars, six months after the said Eugene Shafer loses his situation as teacher at Nazareth Hall, provided he loses his situation previous to the date of his (Senscman’s) second marriage.</p> <p>The testimony in the cause is that of the plaintiff’s witnesses. It establishes the fact that prior to the date of the second marriage of Comenius Senseman, Eugene Shafer voluntarily withdrew from his ■ connection as a teacher at Nazareth Hall. He claims in this proceeding 'that such withdrawal under the circumstances was the contingency contemplated by the condition in the note upon which depended the payment of the three thousand dollars. Whether this is so or not depends upon the construction, by the court, of the words, “ loses his situation as a teacher at Nazareth Hall.” It, therefore, in any event would not be a subject for your consideration, but a question of law for the interpretation and determination by the court.</p> <p>I am satisfied, at this stage of the proceeding, that the voluntary withdrawal of Eugene Shafer, as a teacher, from Nazareth Hall, was not the condition that all the parties intended .to express by the words used in this note, that is, so far as we can derive their manifest intent from the written letter of the contract. A man loses his situation by his involuntary act: No</p> <p>person loses a place which he withdraws from on his own motion. Where he is forced by circumstances beyond his control to withdraw from the situation, either by the action of the authorities controlling At, or his health is in such condition that his life is endangered, or whore his health is imperiled by his continuance in the position, it is n<jt a voluntary withdrawal, but it would be a loss of his situation such as is within the letter of this contract.</p> <p>The evidence in this case discloses no such state of facts. It shows that Eugene Shafer, because of his dissatisfaction with his father-in-law’s second marriage withdrew voluntarily from his position as a teacher in Nazareth Hall. That was not the event contemplated by this contract upon the happening of which the payment of mohey became due. I therefore propose to make this motion for the entry of a compulsory nonsuit absolute, and will discharge you from the further consideration of the case.</p> <p>A compulsory nonsuit having been entered, and a motion to take it off refused, the plaintiff took this writ, assigning for error, the entry of the nonsuit and the refusal to take it off.</p>

No. 54 July Term 1888, Sup. Ct.; court below, No. 300 December Term 1887, C. P. On October 17, 1887, a case stated was filed, wherein Johnson Wells, A. Decker, G. Y. Myer, James Thornton, W. L. Carpenter, George Quigley, D. Stone, G. C. Hollon and Charles M. Hall, were plaintiffs, and the county of Bradford was defendant, and in which it was agreed as follows : That the plaintiffs, Johnson Wells and G. C. Hollon, were constables of the county of Bradford; Charles M. Hall was…

No. 104 January Term 1888, Sup. Ct.; court below, No. 44 March Term 1887, C. P. On December 4, 1886, George C. Shaw filed a petition for tbe appointment of viewers to assess damages against the Susquehanna Boom Co., under a provision of their charter, for injury done to plaintiff’s land and stock by reason of an ice gorge and flood which he alleged was caused by the boom company’s dam and piers.

<p>(a) A testatrix bequeathed one fourth of her residuary estate to a trustee to hold and invest the principal sum, and from time to time as the interest should be received, to pay the same to a son M. during life, and after the decease of said son to pay the principal sum “over to the lawful child or children of the said M., if more than one, share and share alike; any deceased child leaving lawful issue, such issue to take [per stirpes], mid in the event of my said son M. dying in my lifetime, or without leaving any such lawful child, .... then the same to go or be paid over as hereinafter provided in case of a legatee dying in my lifetime : ”</p> <p>1. In such case, the trust created was not a dry trust whereby the cestui que trust became entitled to the principal of the fund for life, or for any other period; nor was he entitled to have it paid to him for life upon giving security under the act of May 17, 1871, P. L. 269.</p> <p>2. “We do not think this act was intended to destroy active trusts, and to require the courts to hand over such estates to the tenants for life, upon giving security or otherwise.....It is sufficiently objeetionabl e when confined within its proper limil s.....It is an act which the courts, and especially the Orphans’' Court, cannot administer with too much care: ” Per Mr. Chief Justice Paxson.</p> <p>3. In the case of life estates with remainders over, there may be instances in which the remaindermen may not be entitled for fifty years or more : in such instances we do not see how anything less than a first mortgage upon property worth at least double its amount would be adequate security: Per Mr. Chief Justice Paxson.</p>

<p>EBBOB TO THE COURT OE COMMON PLEAS NO. 3 OE PHILADELPHIA COUNTY.</p> <p>Nos. 399 and 400 January Term 1888, Sup. Ct.; court below Nos. 515 and 516 June Term 1885, C. P. No. 3.</p> <p>On August 18, 1885, Hiram M. Campbell and Henry T. Atkinson, trading as Campbell & Atkinson, began a suit by an attachment, under tbe act of March 17, 1869, P. L. 8, against Henry D. Walls, trading as J. A. Biter & Co. On the same day Joseph O. Boteler brought a like action on a like writ against the same defendant.</p> <p>The affidavit upon which the attachment of Campbell & Atkinson was based was as follows:</p> <p>“ Henry T. Atkinson being duly sworn according to law deposes and says : That he is a member of the firm of Campbell & Atkinson, plaintiffs in tbe above case; tbat Henry D. Walls, trading as J. A. Biter & Co., is justly indebted to deponent’s firm in tbe sum of two thousand and twenty-four dollars and sixty-seven cents, being for goods sold and delivered to Mm, from tbe seventh day of June, 1884, to tlie twentieth day December, 1884; tbat tbe said Henry D. Walls, trading as J. A. Riter & Co., fraudulently contracted said debt, and incurred tbe Obligation for which this claim is made.”</p> <p>Tbe affidavit of Joseph C. Boteler, upon wliicb his attachment was based, set out tbat Walls was indebted to him in the sum of fourteen hundred and forty-three dollars and twenty-three cents, for goods sold and delivered and work and labor done, and that Walls fraudulently contracted tbe debt and incurred tlie obligation for wliicb tlie claim was made.</p> <p>On August 25, 1885, rules to dissolve the attachment in each case were taken, and on October 10, 1885, these rules, after argument and the submission of depositions, were discharged.</p> <p>The plaintiffs in each suit then filed a declaration in the common counts in assumpsit. Issue in each case.</p> <p>At the trial on April 13, 1887, Walls testified that the claim of Campbell & Atkinson had been settled in full by notes and cash, and that one of the notes was not due when the attachment was issued. This was denied by the plaintiffs, who claimed that the notes were given and held merely as collateral.</p> <p>In the suit by Boteler, the plaintiff testified that he claimed under a written contract with an agent of the defendant. The latter made an offer to prove that the debt was not fraudulently contracted, but did not offer to contradict plaintiff’s testimony.</p> <p>By the court: Offer refused; exception.4</p> <p>In both cases the defendant presented the following points:</p> <p>1. If the jury believe that the defendant did not fraudulently contract the debt or incur the obligation for which the plaintiffs’ claim is made, their verdict should be for the defendant.</p> <p>Answer: Refused.8</p> <p>2. If the jury find that the defendant contracted with the plaintiffs for the work done and material furnished in- the ordinary course of business, and that he practiced no fraud on the plaintiffs in the contraction of the debt, or did not fraudulently incur the obligation, then the plaintiffs’ action falls and your verdict in this case must be for the defendant.</p> <p>Answer: Refused.3</p> <p>In the suit brought by Campbell & Atkinson, the defendant filed the additional points:</p> <p>3. An intention not to pay, at the time a purchase is made does not make such purchase fraudulent. An intention not to pay is dishonest but it is not fraudulent. The law provides an action on the contract as the remedy for such dishonesty, and it is no more fraudulent to have such an intention at the time of the purchase than at the time when payment ought to be made: Smith v. Smith, 21 Pa. 307.</p> <p>Answer: Refused.</p> <p>4. *If the jury believe that the plaintiffs relied upon the naked promise of the defendant to pay them from time to time, as he was paid, and the defendant failed to keep the promise, such a failure on his part would not amount to fraud. A failure to perform tlie conditions of a sale in the future is not fraudulent per se: Harris v. Smith, 3 S. & R. 22.</p> <p>Answer: Refused.</p> <p>The court, Reed, J., in the action by Campbell & Atkinson, charged the jury as follows:</p> <p>“ In the view which I take of the law the question as to the fraudulent character of this claim has already been settled by this court, which is a decision that binds me as well as you. At the argument upon the rule to dissolve this attachment, the question as to whether there was any fraud in this case sufficient to justify the issuing of the attachment was passed upon and decided. [The sole question in the case before you is whether there is any money due by the defendant to the plaintiffs, the amount being the sum of money that is agreed on both sides to be due. Therefore, as that is the only point to be considered, and as that point is not in dispute, your verdict must be for the plaintiffs for that amount, which is f 2,024.07, with interest, and you will find a verdict accordingly.] ” 1</p> <p>In the action by Boteler, the court charged as follows:</p> <p>“ I direct a verdict for plaintiff.”</p> <p>Judgment having been entered on the verdicts for plaintiffs in each case, Walls took these writs, assigning for error, in the first case, the part of the charge in [ ] 1; and in the second case,</p> <p>1. The charge of the court.</p> <p>2, 3. The refusal of the defendant’s points.8 3</p> <p>4. The refusal of the defendant’s offer.4</p>

<p>FROM THE DECREES OE THE ORPHANS’ COURT OE PHILADELPHIA COUNTY.</p> <p>Nos. 402 and 403 January Term 1888, Sup. Ct.; court below, No. 304 April Term 1886, O. C.</p> <p>Conrad F. Clothier died on January 1, 1886, leaving to survive him a widow, Mary Y. Clothier, and the following children: Mary C. Fletcher, John B., Lillian F., Conrad F., and Albert E. C. Clothier. In his lifetime the decedent had been a member of the firm of Edwin II. Fitler & Co., and by his will duly admitted to probate, he provided:</p> <p>8. “All the cash moneys belonging to me now lying in the hands of Edwin FT. Fitler & Co., I hereby direct my executors to allow to remain in their hands for the period of five years after my decease (provided, however, that Edwin II. Fitler, the senior member of said firm, is alive and connected with that firm during that period), the said firm giving their obligations therefor, and paying to my executors, for the benefit of my wife, Mary V. Clothier, and my children, interest for the same semi-annually at the rate of seven per cent, per annum, the receipts for the payment thereof to be signed by all of my executors hereinafter named. I do further order and direct my executors hereinafter named, at the expiration of the said period of five years, or should the said Edwin II. Fitler, the present senior member of the said firm, be called away from this life or withdraw from the said firm at any time within the said period of five years, then, and upon the happening of either event, to withdraw all the moneys belonging to me then remaining in the hands of the said Edwin H. Fitler & Co., and I order and direct my said executors to invest the same in the following manner, to wit: the sum of forty thousand dollars ($40,000) in trust nevertheless and to and for and upon the uses, intents and purposes following, that is to say, in trust to invest and keep safely and securely invested ..... and to collect and receive the interest on such investments from time to time, and the same to reinvest in like manner, and as each of my children, viz.: John Birely Clothier, Lillian Fitler Clothier, Conrad Fries Clothier, Jr., and Albert Edwin Clifton Clothier shall respectively attain the age of twenty-one years, then to pay and distribute to such child so coming of age one full equal fourth part of the said forty thousand ($40,000) dollars with its accumulations absolutely in fee.</p> <p>■ 9. “I give and bequeath unto my executors hereinafter named.....the sum of $100,000 in trust.....to pay the entire fifth part of the said net income, interests and profits, to my daughter Mary C. Fletcher for and during the full term of her natural life upon her own receipt, for her own sole and separate use and benefit, and from and immediately after the decease of my said daughter, then in trust to pay the said entire one fifth part or principal of her trust estate to such person or persons as she shall by her last will.....appoint. As to one other fifth part of said net income, interests and profits, in trust to pay the same to my beloved wife for the elothing, maintenance, education and support of my daughter Lillian F. Clothier until she arrives at the full age of 21 years, and upon this further trust, from and immediately after her arrival at said' age, then in trust to pay the said one fifth part of said net income, interests and profits to my said daughter for and during the full term of her natural life with remainder to her appointees by will, and as to the remaining three-fifths of said net income, interests and profits, to pay the same to my beloved wife for the clothing, maintenance, education and support of my sons John Birely Clothier, Conrad F. Clothier, Jr., and Albert E. O. Clothier, until they respectively attain the age of twenty-one years, then in trust to pay to such son the entire principal of his trust estate absolutely in fee.</p> <p>10. “ All the rest, residue and remainder of my estate, real, personal or mixed whatsoever and wheresoever, I give, devise and bequeath to my beloved wife, Mary V. Clothier, absolutely in fee.”</p> <p>On May 31,1886, the account of the executors was filed showing that Edwin II. Fitler & Co. had paid on account of the amount remaining in their hands the sum of $163,504.12 and had given the executors a due-bill’for $187,500. The auditing judge awarded to the accountants, in trust, $40,000, in accordance with the eighth clause of the will, and $100,000 in trust in accordance with the ninth clause of the will. He awarded also to the accountants the balance in the hands of Edwin H. Fitler & Co., represented by the due-bill, to be held and collected by them and thereafter accounted for. The balance of the personal estate was awarded to Mary V. Clothier.</p> <p>Mary C. Fletcher was not present at this audit, and her counsel, though sent for, acting under the instructions of his client, declined to appear. No exceptions being filed, the account was confirmed absolutely on July 3, 1886. Subsequently, out of the award of $40,000, the sum of $10,000 was paid to John B. Clothier, and $10,000 to Lillian F. Clothier. Out of the award of. $100,000, the sum of $20,000 was paid to John B. Clothier.</p> <p>On June 25, 1887, Mary C. Fletcher presented a petition-piling the court to grant a rehearing and review of the adjudication and account. The court dismissed the petition. Subsequently, Mrs. Fletcher presented another petition praying leave to file nunc pro tunc the following exceptions, to wit: that the auditing judge erred:</p> <p>1. In finding as follows: “ There appears to be no reason ■why the legacy of $40,000 provided for in the eighth clause of the will, and the legacy of $100,000 provided for in the ninth clause of the will, should not be immediately paid, out of the moneys in the hands of the executors received from E. II. Fitler & Co.”1</p> <p>2. Tn awarding distribution of said sums of $40,000 and $100,000, respectively.3</p> <p>3. In not awarding the moneys in the hands of Edwin H. Fitler & Co. to the executors, as trustees in the eighth and ninth clauses of said decedent’s will.3</p> <p>4. In not awarding the fund coming into, the hands of the firm of E. H. Eitler & Co., and still remaining in their hands, to the executors as trustees, to be invested for the benefit of the widow and .her children during the period of five years after the decease of said testator.4</p> <p>The court dismissed this petition.</p> <p>On July 26,1887,the- account of -the trustees was filed. The auditing judge, Ashman, J., awarded the sum of $187,500 evidenced by the due-bill of Edwin H. Fitler & Co., -to Mary V. Clothier. Mary C. Fletcher thereupon filed the following exceptions to the adjudication, to wit: that the auditing judge erred:</p> <p>2. In awarding the fund of $187,500, evidenced by the due-bill of Edwin H. Fitler & Co., to Mrs Mary V. Clothier.8</p> <p>8. In not awarding to Mrs. Mary C. Fletcher, one sixth of the income derived from said fund of $187,500 in the hands of Edwin H. Fitler & Co.3</p> <p>4. In not awarding that the fund received by the accountants from Edwin H. Fitler & Co., to wit: not only-the $40,000 and the $100,000, but also the $187,500 still in the hands of Edwin H. Fitler & Co., should be held and invested by the accountants as a single fund, for the period of five years after the death of said decedent, and that out of the net income derived therefrom during said period there should be paid to Mrs. Mary C. Fletcher one sixth thereof; and in not awarding that the said trust for five years was a valid and subsisting one, of which Mrs. Mary C. Fletcher was entitled to the benefit.4</p> <p>These exceptions were dismissed and the account was confirmed absolutely, opinion by Ferguson, J. Thereupon Mrs. Fletcher took these appeals, specifying in</p> <p>No. 402, that the court erred:</p> <p>1- 4. In dismissing her exceptions to the adjudication of the executor’s account.1 4</p> <p>In 408, that the court erred:</p> <p>2- 4. In dismissing her exceptions to the adjudication of the trustee’s account.8*04</p>

1 OR PHILADELPHIA COUNTY. No. 103 July Term 1888, Sup. Ct.; court below, No..... March Term 1886, C. P. No. 1. On May 22, 1886, Edmund Widdall and John E. Widdall, trading as Edmund Widdall & Son, obtained a judgment against John Garsed, and John Garsed, trading as A. L. Garsed. The copy of book entries filed showed that the claim was for cotton and materials used in yarn spinning.

<p>(a) A deed" of- trust directed the trustee to pay over the income and dividends of the trust estate “to Marie.....and should the said Marie die, the said trust herein declared shall enure to the benefit of her heirs; but if she have no children the same shall revert to my estate.” The deed further directed that $50 per annum out of the income should be added to the principal.</p> <p>(b) The deed was executed in Illinois where the grantor lived, and M., the beneficiary, was and continued to be a citizen of Colorado, while the trustee was Pennsylvania corporation. After the execution of the deed, M. gave birth to a child: the grantor subsequently died without exercising the power of revocation reserved by him.</p> <p>1. In such case the estate of M. was merely an equitable estate for life, which did not become absolute by the birth of issue, and was not enlarged by the remainder to her heirs.</p> <p>2. As it was not denied that the trust was valid by the law of the state where it was created and of the state where it was to be enjoyed, the fact that the trustee was a Pennsylvania corporation did not render the trust invalid, under § 9, act of April 18, 1863, P. L. 607, concerning accumulations.</p>

8 OE PHILADELPHIA COUNTY. ■ No. 116 January Term 1889, Sup. Ct.; court below, No. 24 September Term 1888, C. P. No. 3. On August 17, 1888, the Merchants National Bank issued a summons in assumpsit against Martha Brooks andW. Howard Brooks, now or late copartners, trading under the name of M. Brooks & Co. ' The action was on promissory notes held by the plaintiff, drawn or indorsed by M. Brooks & Co., and all dated subsequent to January 1, 1888.

1 OF PHILADELPHIA COUNTY. No. 121 January Term 1889, Sup. Ct.; court below, No. 972 March Term 1*887, C. P. No. 1. On April 25, 1887, Frederick W. Seitber brought trespass against the Philadelphia Traction Company, the narr declaring for personal injuries received through the alleged negligence of tlie defendant company. On November 4,1887, the defendant pleaded, not guilty.

<p>(a) A bank held a judgment against one Menns securing an indebtedness of $3,200 and the further sum of $3,500, which was the amount of two notes made by one Smith to the order of Menns and discounted for the latter by the bank, and for these notes Smith had received from Menns the latter’s notes for the same amount.</p> <p>(5) Subsequently, the wife of Menns paid to the bank $4,000 out of her own moneys, when the judgment was marked by the bank to her use, the bank agreeing to look to Smith alone for payment of his notes and releasing Menns from all liability thereon.</p> <p>(c) Menns dying insolvent, his real estate was sold by his executors, but the fund realized therefrom was insufficient to pay all the liens against it, and, at the audit it was claimed on the part of Smith, that as he was but an accommodation maker of the two notes held by the bank, he was therefore surety for Menns and as such had an equity in the judgment assigned to the latter’s widow.</p> <p>1. In such case, as Menns and Smith, each, had received a like consideration for the notes one had issued to the other, to wit, notes for a like amount, neither had any equity over the other, and Smith was not entitled to an interest in the judgment.</p>

<p>FOR A MANDAMUS TO THE COURT OF QUARTER SESSIONS OF PHILADELPHIA COUNTY.</p> <p>No. January Term 1889, Sup, Ct.</p> <p>On November 3, 1888, Babetta Blumenthal presented her petition representing :</p> <p>That she resided in the Twelfth ward, Philadelphia, and was the widow of Moses Blumenthal, who died July '7, 1888, having executed his last will and testament, duly admitted to probate, wherein the petitioner was made the life-tenant of testator’s real estate, inter alia, the premises at the corner of Fourth and Wood streets, known as the Philadelphia City Hotel.</p> <p>That before his death the said Moses Blumenthal, as the owner of said hotel, had been granted a license by the Court of Quarter Sessions of the county of Philadelphia, to sell at retail spirituous, malt and brewed liquors, or admixtures thereof, for a period bf one year from June 1,1888, under the act of May 13, 1887, P. L. 108, for which said license said Moses Blumenthal paid into the county treasury the sum of $500.</p> <p>That at the time of the death of said Moses Blumenthal said license was subsisting and in full force; that thereafter the petitioner had carried on the said hotel, but had not sold or offered for sale any spirituous or malt liquors; that said Philadelphia City Hotel had been carried on as a public inn for the past century; that the same was declared by the Quarter Sessions for the county of Philadelphia a place of public necessity, and it had been conducted in a reputable and law abiding manner.</p> <p>“ That a petition setting forth the foregoing facts and praying that the license for the said the Philadelphia City Hotel, granted unto the said Moses Blumenthal, be transferred to your petitioner, under the act of assembly, of April 20, 1858, § 7, P. L. 366, was filed and presented to the Court of Quarter Sessions for the county of Philadelphia, August 7, 1888. A copy of said petition is hereunto annexed, marked Exhibit A ; and a further petition being a ‘compliance with the requisitions of the laws in all respects, except publication,’ was attached thereto and made a part of said petition, a copy of which is hereunto annexed, marked Exhibit B.</p> <p>“ That thereafter a time was fixed for a hearing of said petition, and, no objection being made, the same was considered by the said Hon. D. Newlin Fell, Hon. Robert N. Willson, Hon. James Gay Gordon, Hon. F. Amédée Brégy, judges comprising the Court of Quarter Sessions for the county of Philadelphia, and on October 22, 1888, said petition was, arbitrarily and contrary to law and the act of assembly in that behalf, ‘refused’ by the judges composing the aforesaid court.</p> <p>“ That from the decree of said court refusing to transfer said license there is no appeal, no bill of exceptions, or writ of error, and the action of the said judges of said court being a refusal to grant to your petitioner that which the law entitles her to, she prays that the said judges of said court who heard her said petition, and who refused to grant the same, may be commanded, first, by an alternative mandamus, to show cause why the prayer of said petition or application should not be granted; and secondly, by peremptory mandamus, to do fully all that is required to be done in justice and by the laws of this commonwealth.</p> <p>“ And your petitioner will ever pray,” etc.</p>

<p>(a) The by-laws of a mutual fire insurance company provided: “§ 27. If at any time hereafter, an assessment shall be made, the amount to be levied on premium notes, or policies of insurance, shall be rated according to the following classification:</p> <p>‘ ‘ First. All membei'S whose policies are in force at the time the assessment may be declared, shall be liable to assessment for all losses, adjusted, unadjusted, and unpaid, and all other liabilities then existing against the company, subject to abatement as hereinafter specified.</p> <p>“ Second.. All members whose policies have expired, and are not in force at the time such assessment is declared, shall nevertheless be liable to assessment for all unpaid losses, and other liabilities, which existed at the time of the expiration of such policy or policies, pro rata with those then in force, and the amount thus ascertained and levied upon such expired policies, to be deducted from the gross amount of liabilities of the company for which such assessment is to be made, and balance of liabilities, then remaining, to be assessed upon the policies then in force.”</p> <p>1. The scheme intended by the by-law was, that all policies which were in force at the time of the assessment, or at the time of the loss, both or either, should be liable for the loss, but the assessment should be laid in the first instance, upon the policies in force at the time of the loss, whether since expired or not; and the policies issued subsequent to the loss, and remaining in force at the time of the assessment, were to be assessed only for the balance, if the first branch of the assessment should be insufficient.</p> <p>2. The by-law simply added to the general rule, that losses shall be paid by the policies in force at the time of their occurrence, another provision which is not unlawful, that if the assessment against such policies prove insufficient, then all existing policies, even though issued subsequently to the losses, shall be liable to make up the deficiency: Susq. M. F. Ins. Co. v. Gackenbach, 115 Pa. 492, explained and distinguished.</p>

No. 288 January Term 1888, Sup. Ct.; court below, No. 84 March Term 1884, C. P. On February 6, 1884, the Susquehanna Mutual Fire Insurance Company brought an action in assumpsit against Joseph E. Thropp, to recover assessments on an interest-bearing premium note given by Thropp to the company, upon taking out a policy of insurance.

<p>ERROR TO THE COURT OE COMMON PLEAS OE SCHUYLKILL COUNTY.</p> <p>No. 160 January Term 1889, Sup. Ct.; court below, No 17 July Term 1887, C. P.</p> <p>On May 2, 1887, Malachi J. Cleary filed a 'petition for the appointment of viewers to assess damages, against the Pennsylvania Schuylkill Valley E. Co. for land taken by the company for railroad purposes. The viewers were appointed and filed their report, September 5,1887, assessing his damages at $4,750. The petitioner appealed from the award, and it was agreed that the action should be in the form of an action of trespass, under the plea of not guilty.</p> <p>At the trial on November 4,1887, the following facts appeared:</p> <p>The lot of land, over which defendant’s road ran, formerly belonged to James Cleary, who diedin 1882. His title descended to his heirs at law of whom the plaintiff was one, and to whom letters of administration were issued. The defendant company entered upon the land on July 31, 1885.'</p> <p>Plaintiff offered in evidence a sheriff’s deed for this land, dated April 11, 1887, from B. J. Duffy, sheriff, to Malachi J. Cleary, acknowledged April 2, 1888; this to be followed by an offer of a judgment by A. E. Beck obtained against James Cleary in his lifetime, together with a revival of the same against the plaintiff as administrator; issue of fieri facias and condemnation, venditioni exponas, and sale to the plaintiff on April 11,1885, followed by the execution and acknowledgment of the deed.</p> <p>Objected to by the defendant, because not showing title in the plaintiff at the time of the taking.</p> <p>By the court: ■ Objection overruled, offer admitted; exception.1</p> <p>Daniel Crawshaw, called for plaintiff, testified that he owned property about half way between Nicholas street and the property in dispute, which property he had acquired in 1884. It was in lots.</p> <p>Q. What did you pay for it ? A. $300 a lot.</p> <p>Objected to as immaterial.</p> <p>. Q. What are lots worth in that neighborhood? A. They are asking $300; that is what I paid that time; I do not know what they are now.</p> <p>Mr. Earquhar asks that tins testimony be stricken out.</p> <p>By the court: Strike out as to what he paid. Let the rest stand; exception.4</p> <p>John Buckley, called for plaintiff, testified as to his knowledge of the property for a long time, and on cross-examination stated that various projects had been suggested to utilize it for manufacturing purposes, but that Mr. Cleary was a peculiar man, and the property was in use all the time for the purpose of a truck farm and meadow. On re-direct:</p> <p>Mr. Ryon: Q. It was also true that Mr. Cleary had refused to sell it to anybody ? A. I know it only by Cleary’s own declarations.</p> <p>Objected to.</p> <p>Q. You went on to tell in answer to the counsel’s question, that there were several projects formed for the purpose of purchasing this property for manufacturing purposes. Do you know that to be a fact ?</p> <p>Objected to.</p> <p>By the court: If you can show that Mr. Cleary refused to sell it for any purpose, that you can show.</p> <p>Plaintiff proposes to show further that there had been manufacturing projects originated, and for the purpose of purchasing this very property for manufacturing purposes, and Mr. Cleary would not sell it. If it is important for them to show that it was only used for a truck farm, it is important for us to show why, because the object of that question is to say to the jury that Mr. Cleary owned the land for 35 years and could not sell it.</p> <p>By the court: That is all accomplished by proof of the fact that Cleary refused to sell the property. To that extent we will admit the offer; exception.6</p> <p>The witness testified, under another objection and exception, that Cleary told him several times he would not sell the property while he lived.7</p> <p>Testimony having been introduced in the defendant’s case in chief, to show that the property lay idle and unproductive after Mr. Cleary’s death, in the plaintiff’s rebuttal, John A. Nash, who represented heirs interested in the property, was called and asked why the property was not leased by the heirs after the old gentleman’s death.</p> <p>Objected to.</p> <p>Mr. James Ryon: We propose to prove that they refused to make any leases except to one or two parties who went in there for the mere purpose of taking care of the property; that a man by the name of Smith wanted to lease the property, and pay a very fair rent, that they declined to lease it to him; that they were holding the property for the purpose of cutting it up into town lots and soiling it, but that they were not prepared to sell it at the time this railroad came on and took it; that they had not had it surveyed; that there was some preliminary work to do before they could put it into the market. The inference from the cross-examination of counsel as to the property being idle might be damaging with the jury, while if the jury understand the facts why it was idle, because these people refused to lease it, it would be an important element in1 the question of damages.</p> <p>By the court: A refusal to lease after Mr. Cleary’s death ?</p> <p>Mr. James Ryon: Yes, sir.</p> <p>By the court: We think you can prove the fact that after Mr. Cleary’s death they refused to lease to parties, to go into possession of it, because they wanted to reserve it for other purposes, as an explanation of the fact that the place was unoccupied. We will admit that; exception.8</p> <p>Defendant excepts. Bill sealed.</p> <p>The court, Green, J., charged the jury, in part as follows :</p> <p>[There is no doubt that Cleary was the owner of about three acres of land on the outskirts of the borough of Pottsville, near what is called the shoe factory, on the road leading from Pottsville to St'. Clair, and that of this property about two acres were taken by the railroad company and about one acre was left; therefore it is for you to determine under the evidence in the case what was the value of the two acres taken; also, what damage was done, if any, to the acre that was left.] 8 That depends entirely upon the evidence in the case. It will not do for a jury to put a fanciful estimate on the property. They must be guided by the evidence in the case, and the weight of the evidence. In determining what the weight of the evidence is, you take into consideration not only the number of witnesses testifying upon one side or the other, but you must also take the character, the knowledge, the experience of the witnesses. In every man naturally there is some difference as to the weight of his testimony, depending very much upon his knowledge of the facts in the case, the experience he may have had, his age, and his opportunities for observation. All these are matters to be taken into consideration by the jury in determining the weight of the testimony. The jury is to determine what was the value of this land at the time it was taken by this railroad company, which was in July, 1885. What were these two acres worth at that time or what injury was done by the railroad?.....</p> <p>You will notice in this case there is a very remarkable diversity of opinion in the testimony of the different witnesses who have been examined on the part of the plaintiff and on the part of the defendant. The opinions of these witnesses vary from, I think about $2,500 as the lowest estimate that is put upon the property by any one of the witnesses, as to the value of these three acres of land, up to about $12,000, as I understand the testimony of Joseph Picton, who swears that the property was worth from $3,000 to $4,000 an acre, three acres making $12,000. It b the duty of the jury to examine this evidence, estimate its weight, and from all the evidence in the case, from the weight and character of the evidence, endeavor to come to a fair estimate of the value of this property, also to estimate the amount of depreciation or injury done to the property that was not taken.</p> <p>In estimating the value of this property, of course the jury should take into consideration what the nature of the property is, what it is reasonably adapted for. For instance, you have three acres of land. If it were out in the country and had no other value except as farm land, the natural value you would put upon it then, would be that of farm land. If it were so situated that it could he turned into town lots, then the natural estimate of damages would be its capability of being made into town lots; or, if it were eligible for manufacturing purposes, then its value for a place of business of that character. Of course, property in a town or on the outskirts of a town, as a general rule, would be estimated at a higher rate than if it were to be estimated merely as farm land, and the jury must determine, from the evidence in the case, what that value is. [If you find under the evidence in the case, that this property was adapted, for instance, for town lots, then ordinarily it would have a higher range of value than if it were simply used for agricultural purposes. You have heard quite a considerable amount of testimony with regard to the value of lots, how many lots it would make if it were cut up, how it could be divided and what the value of those lots would be. It would scarcely be a fair estimate of the value of the property to take this property and divide it all up into town lots, and say that each town lot is worth so much money, and that therefore, the whole property is worth that amount of money; because that presupposes that the moment that that property is cut into town lots, it could all be sold off at that figure. That is a question for you whether that would be the case, particularly with a piece of ground on the outskirts of a town, where perhaps the evidence would not show that the tide of improvement was going. It is a question of fact for a jury. For instance, if a piece of ground of three acres were to be cut up into town lots, 1 do not know how many town lots it might be cut into, whether 50 or 100, the question would bo how many a party would be likely to sell in one year, how long he would have to wait in order to sell the balance, and the amount of taxes he would have to pay whilst he was holding the other town lots. Therefore, I say the estimate of the value of property based upon its value as town lots, would be ordinarily not reliable unless you also take into consideration, in estimating the value, that those town lots might remain on hand for many years without being sold. It is a question of fact for you to determine. Whilst its eligibility or capability of being made into town lots is something for you to take into consideration, in determining its value, yet it would not be a reliable estimate of its value for you to take the value of each town lot, if it were cut up into town lots, and fix that as the value, unless the evidence in the case showed that the moment it was cut up into town lots it could all be sold at once.] 5</p> <p>The same remark might apply with regard to the capability or eligibility of this property for manufacturing purposes. It never had been used for manufacturing purposes. It was a meadow, most of it, a portion of it situated on the slope of a hill, and the other portion on a level, somewhat swampy down near the railroad, according’ to the testimony in the case. Take the testimony as to the value of the property, and perhaps the most of the testimony of the witnesses upon this subject bears, in the first place, upon the value as a whole. We have not much evidence here as to the value distinctly of the property simply that was taken by the railroad company. The great bulk of the testimony is as to the value of the three acres as a whole, and also as to the value of that portion which was left. Therefore, I presume, under the testimony in this case, it would probably be the simpler and easier method for you, in the first place to determine the value of this property as a whole three acres, and then to determine what is the value of the property that still remains, that was not taken, deducting one from the other to ascertain the amount that the plaintiff would be entitled to with interest.</p> <p>* • * * * * * * *</p> <p>The defendant’s points are as follows:</p> <p>1. The true measure of damages in such a case as this is the difference in the market value of the' property immediately before the railroad'was located upon the premises, and the market value thereof after the railroad of defendant was built upon the same.</p> <p>Answer: That point we affirm.</p> <p>2. That the plaintiff has shown no such title to the premises in question as to entitle him to damages, and the verdict must be for the defendant.</p> <p>Answer: That point we decline to affirm.3</p> <p>The jury returned a verdict in favor of the plaintiff for $6,669. Judgment having been entered on the verdict, the defendant took this writ, assigning for error:</p> <p>1. The admission of plaintiff’s offer.1</p> <p>2. The part of the general charge in [ ] s</p> <p>3. The answer to defendant’s point.3</p> <p>4. The admission of plaintiff’s offer.4</p> <p>5. The part of the general charge in [ ] 5</p> <p>6-8. The admission of plaintiff’s offers.6108</p>

<p>1. In an action for malicious prosecution, absence of probable cause raises a presumption of malice, but the presumption may be rebutted by showing that malice did not in fact exist, and one of the ways of showing this is by showing that the prosecutor acted under the advice of counsel.</p> <p>2. It is not the advice, however, that rebuts the presumption of malice, but the innocence of the defendant’s conduct, of which his seeking advice is merely evidence; and whether the advice is a good defence depends upon the good faith with which it is sought and followed, and this is a question for the jury to determine from the evidence.</p> <p>(a) The defence in an action for malicious prosecution was, that the defendant before instituting the prosecution made a full and fair disclosure of the facts to counsel, and followed the latter’s advice in good faith. In proof of this defence the defendant called the counsel consulted, who testified to what occurred in Ms interview with the defendant, and that he advised the defendant to prosecute.</p> <p>3. In such ease, it .was error to instruct the jury that if they believed the testimony of the witness the plaintiff could not l’ecover, because the instruction omitted all reference to the truthfulness and completeness of the defendant’s statement to his counsel, and the good faith with which counsel’s advice was followed, which constituted the real issue and should have been left to the jury to decide.</p>

No. 14 January Term 1889, Sup. Ct.; court below, No. 85 October Term 1887, C. P. On September 24, 1887, a scire facias sur mortgage was issued in a cause wherein George Brooke, guardian, etc., was plaintiff and John Bordner, Sr., was defendant, with notice to terre tenants.

<p>(a) The will of a testatrix provided: “I do hereby give, devise, and bequeath unto my two nephews, I. H. K. and B. II. K., in common during life, the possession, use, benefits, rents, issues, and profits of all that certain one acre, more or less, lot of ground, situate.....to be enjoyed by the said I. H. K. and B. H. K. during life, and immediately after their decease the same shall descend to their children in equal shares, or their heirs, yet so that the children of each only divide between them the share which belonged to their father.”</p> <p>(5) In 1856, the devisees petitioned the Orphans’ Court for an order to soli the lot, under the act of April 18, 1853, P. L. 503, the petition reciting, inter alia, that the purpose of the sale was to bar any and every estate tail and contingent remainder. The sale was ordered and made by B. H. K., whom the court appointed trustee for the purpose.</p> <p>(c) Keitlier devisee ever had any children, and both died. On April 18, 188G, K-, the executrix of B. II. K., filed her account, in which she charged herself with B. II. K.’s share of the proceeds of the sale as due and belonging to the administrator d. b. n. e. t. a. of H.’s estate, which account was confirmed and distribution ordered and made.</p> <p>(d) In May, 1887, K. petitioned the court to revise her account, on the ground that she had just been advised that the sale in 1856 had enlarged B. II. K.’s estate to a fee, and that as his executrix and the beneficiary under his will, she was entitled to the fund.</p> <p>1. Primarily and generally the word, “children,” in a will, is a word of purchase, and while it may be used to signify “heirs,” or “ heirs of the body,” it will not bo so construed unless the testator has employed other words indicative of an intention to use it as a word of limitation.</p> <p>2. Examining the whole will, no intention is disclosed that the children of the devisees should take directly from their parents, and not under the will; wherefore, B. II. K. took only a life estate in the lot devised and in the proceeds of the sale after it was converted.</p>

<p>A director of a corporation who voted against a reconstruction plan to reduce the value of the corporate securities, recommended by the board to the holders for their adoption, is not estopped as an individual by the action of the board, although his opposition to its action was not made known to the public.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY.</p> <p>No. 128 January Term 1889, Sup. Ct.; court below, No. 49 September Term 1888, C. P. No. 2.</p> <p>On October 22, 1888, Levi Teal, Blythe C. Andrews and Edward Ilazlehurst, liquidating trustees of the Hamilton Straw Lumber Co., Limited, issued a summons in assumpsit against William W. Weigley, to recover $1,551 principal and interest on two promissory notes made by the defendant in favor of said company. The summons was made returnable to the first Monday in November following, which was November 5,1888.</p> <p>On October 24, 1888, the plaintiffs filed and served their statement, under the procedure act of May 25, 1887, P. L. 271, containing the necessary averments and having copies of the notes annexed. On November 3, 1888, the defendant filed an affidavit of defence, in which he first claimed a set-off of $993.90, and then continued as follows :</p> <p>“ And the deponent further says that the statement of the plaintiff’s demand in this suit was made and filed and served on the defendant on the 24th day of October, 1888, which was less than fifteen days before the return day of his writ, which return day is the first Monday of November, 1888. And the deponent therefore submits to the court that the said statement was irregularly filed, and that having neglected to file and serve his statement at least fifteen days before the return day of his writ, the plaintiff cannot take any motion or proceeding for judgment based upon the said statement filed, nor until he shall have filed a statement of his demand on or after the return day and have given fifteen days’ notice to the defendant of the filing thereof.”</p> <p>On November 14,1888, the plaintiffs entered a rule for judgment for want of a sufficient affidavit of defence, and also a rule for judgment for the amount admitted to be due.</p> <p>On November 24, 1888, the court, Hake, P. J., ordered judgment to be entered for the plaintiffs for $993.90, being the amount of plaintiffs’ claim less the set-off alleged. The defendant thereupon took this writ, assigning said order as error.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS NO. 4 OE PHILADELPHIA COUNTY.</p> <p>No. 133 January Term 1889, Sup. Ct. ¡ court below, No. 293 December Term 1886, C. P. No. 4.</p> <p>On December 17, 1886, Patrick Smith brought an action on the case against John C. Drake, William D. Stratton and Isaac Usher, trading as Drake, Stratton & Co., to recover damages for personal injuries caused by the alleged negligence of the defendants.</p> <p>At the trial on April 14,1887, the facts developed in the plaintiff’s case were substantially as follows:</p> <p>In September, 1886, the defendants were engaged as' contractors in making an excavation and tunnel for the Baltimore & Ohio R. Co., in Philadelphia. Plaintiff was in their employ as a foreman of a gang of laborers at work in the excavation, and had charge of the men and horses there engaged. On the morning of September 28, 1886, while the plaintiff was in the excavation, one of defendants’ horses, alleged to be vicious and unruly, suddenly backed into the excavation and struck the plaintiff, crushing his anide and instep. The plaintiff testified that the horse belonged to the defendants and that he “ might have seen him five or six times ” during the week before the accident. It appeared from the evidence that there was no guard at the edge of the excavation over which the cart backed.</p> <p>At the conclusion of plaintiff’s testimony, the court, Thayer, P. J., entered a compulsory nonsuit, saying:</p> <p>The plaintiff, Patrick Smith, who brings this suit against Drake, Stratton & Company, who were his employers at the time of the accident, occupied the position of foreman in charge of the work of excavation at that point, and, according to the evidence, had the supervision of the men and horses there engaged. It was his business, therefore, to know about the ■horses, to know whether they were safe and fit to work with. There is no use in endeavoring to show that there was negligence on the part of the stable-boss in any way. If there was any negligence, it was his own negligence in not sending that horse back to the stable, if he found him an improper horse to work with. From the evidence it appears that he had seen that horse working there for a week at least, and, according to some part of the testimony, for a longer time, and it was his business to know whether the horse was fit to work or not. Upon the whole case I do not see that the defendants, however much we may commiserate Mr. Smith for his misfortune, are responsible for it, and I therefore allow the motion for a non-suit.</p> <p>Subsequently the court dismissed a motion for a rule to take off the nonsuit, when the plaintiff took this writ, assigning as error:</p> <p>1. The refusal to take off the nonsuit.</p> <p>2. The dismissal of the motion for a rule to take off the nonsuit.</p>

<p>ERROR TO THE COURT OF COMMON FLEAS NO. 1 OF PHILADELPHIA COUNTY.</p> <p>No. 145 January Term 1889, Sup. Ct.; court below, No. 2257 December Term 1872, Old District Court (C. P. No. 1).</p> <p>A summons in cáse was issued on January 28, 1873, by Elwood Allen, F. C. Gillingham and Franklin Knight, trading as Allen, Gillingham & Co., to the use of Ernest Sopp, against Sarah A. W. Krips, administratrix of Henry Krips. The writ, returnable to the first Monday of February, 1873, was returned nihil habet.</p> <p>An alias summons was issued on July 23,1877, returnable to the first Monday of August following, which .writ was returned, served. The case was put at issue in 1878-9, and on May 1, 1879, a jury being called, there was a verdict for the plaintiffs for $1,035.73. On March 23, 1886, the jury fee was paid and judgment entered on the verdict.</p> <p>On March 29,1886, the plaintiffs issued a writ of scire facias directed to Sarah A. W. Krips, widow of Henry Krips, and Michael Barrett and Annie Barrett, his wife, formerly Annie Krips, and Henry Krips, heirs at law of Henry Krips, deceased, to show cause why the said judgment should not be paid out of the real estate of which the said Henry Krips died seised. The writ was duly returned by the sheriff, “Made known.” On April 26, 1886, judgment was entered against the defendants for want of an appearance and the sum due liquidated at $1,470.78.</p> <p>On April 9, 1887, a rule was granted to show cause why the judgment entered against Sarah A. W. Krips, widow, and Michael Barrett and Annie, his wife, in right of said Annie, and Henry Krips, heirs at law of Henry Krips, deceased, should not be stricken off.</p> <p>On April 30, 1887, the court, Allison, P. J., made the said rule absolute. The plaintiff thereupon took this writ specifying that the court erred :</p> <p>1. In making absolute the rule to strike off the judgment entered April 26, 1886.</p> <p>2. In striking off the said judgment against the widow and heirs for want of an appearance, said judgment being regular upon its face, and there being nothing upon the record to authorize the court below to strike off said judgment.</p>

<p>1. ' Where a cause is submitted to a referee under the act of May 14, 1874, P. L. 166, the referee has exclusive jurisdiction to pass upon exceptions to his report, and if either party neglect to have exceptions noted to the rulings, he is held to have acquiesced therein.</p> <p>2. A writ of error, in such proceeding, brings up only questions of law, and this court cannot review the findings of fact by the referee except where the assignment of error is such as could have been heard and determined if the trial had been before a jury according to the course of the common law.</p> <p>8. Nor can this court consider the weight or the conflict of the0evidence, or the veracity of witnesses: if the evidence is relevant and proper and the findings of fact are reasonably to be inferred therefrom, in the absence of fraud the report of the referee must be accepted as true and correct.</p>

FROM THE DECREE OE THE ORPHANS’ COURT OE PHILADELPHIA COUNTY. No. 158 January Term 1889, Sup.

<p>If, in the settlement of their accounts of the decedent’s estate, disputes arise between co-executors about matters which concern them individually, and separate counsel are employed and a number of accounts prepared before the difficulties are determined, it is not error to award to the counsel but a part of their compensation out of the estate, without prejudice to their rights to recover the balance from the executors individually.</p>

<p>(a) A testator gave to his wife the residue of his estate, real and personal, “to have and hold the same for and during the whole period of her natural life, and from and immediately after the death of my said wife, all the property hereby devised or bequeathed to her as aforesaid, or so much thereof as may remain unexpended, I give, devise and bequeath unto my beloved children [naming them] share and share alike, for and during the term of their natural life.”</p> <p>1. In such ease, the testator’s clear intent was to give his wife a life estate only: The words, “ so much thereof as may remain unexpended,” were applicable to the personal estate alone, and serving no other purpose than to describe what the children should take, did not enlarge the estate in the land devised into a fee: Fox’s Appeal, 99 Pa. 382; Follweiler’s App., 102 Pa. 581.</p>

<p>■ 1. Where land is sold by a trustee appointed by the Orphans’ Court in partition proceedings, and the proceeds are paid into court in compliance with the terms of the order, the court, though a separate Orphans’ Court, may adjudicate the trustee’s account and make distribution without the intervention of an auditor.</p> <p>2. Even though the full proceeds of sale, amounting to $203,450, have been paid into court, and the trustee gave no bond, the sale made being most advantageous and largely the result of the trustee’s personal efforts, an allowance of one per centum upon the amount as compensation for his services is not excessive.</p> <p>3. A co-tenant, who for many years was in the exclusive possession of the real estate sold, holding adversely to the title of his co-owners, is without equity to prove against the fund claims for taxes and municipal assessments against the land, paid by him during his exclusive enjoyment.</p>

3 OE PHILADELPHIA COUNTY. No. 194 January Term 1889, Sup. Ct.; court below, No. 543 September Term 1884, C. P. No. 3. On November 1, 1884, Thomas W. Wetherald began an action by an attachment under the act of 1869 against David D. Shupe and on December 1, 1884, obtained a judgment against the defendant for $7,802.99.

<p>ERROR TO THE COURT OR COMMON PLEAS NO. 3 OR PHILADELPHIA COUNTY.</p> <p>No. 201 January Term 1889, Sup. Ct. 5 court below, No. 128 December Term 1887, C. P. No. 3.</p> <p>A case stated between the Commonwealth, to use of Robert S. Boyer, as plaintiff, and Charles H. Pray, as defendant, showed that the suit was brought on a guardian bond given by George W. Boyer, as principal, and the defendant Charles H. Pray, as surety, upon the appointment of said George W. Boyer as guardian of the use plaintiff, by the Orphans’ Court of Philadelphia. The bond was in the usual form. The case stated proceeded:</p> <p>In the affidavit to the petition for the appointment of the guardian, it is stated, “ that the amount of property that will come into his hands as such guardian will not exceed the sum of twelve hundred and fifty dollars, the same being the proceeds of sale of real estate belonging to said minor.” Defendant was also informed that there was no property but the real estate hereinafter mentioned.</p> <p>Subsequently thereto the said guardian applied to the said Orphans’ Court for permission to join with other parties in interest in selling and conveying certain real estate in which the said minor, the plaintiff, had an undivided interest. The petition set forth, inter alia, that the minor had no personal property. The court made the order prayed for, and directed security to be given in the sum of $2,000. Defendant was requested to become the surety, but refused. The property was sold, and bond was duly given by the guardian with one Charles B. Kendig as surety, who was duly approved as such.</p> <p>The said Geo. W. Boyer died within three years of his appointment and while his ward was still under age. He had filed no inventory, except so far as the statements in the petitions for his appointment and for the sale of said real estate may be regarded as such, and he had filed no account.</p> <p>Subsequently to his coming of age, the plaintiff filed a petition against the administratrix of George W. Boyer for an account. This petition, with the answer, was referred to a master for the purpose of stating an account, and the proceeding resulted in a finding and decree by the court that the “ master’s report be corrected in accordance with the views expressed in the opinion of the court, and that there is in the hands of the guardian as proceeds of the sale of the minor’s real estate $720.27, with interest thereon as charged by the master $514.42, a,nd that the accountant is charged with the master’s fee of $200, making in all $1,434.69, as of July 2, 1887, the date of the opinion.”</p> <p>It is further agreed that the proceedings for the appointment of the guardian, for the sale of the real estate and for the settlement of the account, with all the matters of record appertaining thereto, being now of record in said Orphans’ Court at No. 286 May Term 1873, and No. 1 October Term 1880, and that both of said bonds, entered of record as aforesaid, shall be treated as part of this case stated, and may be referred to by either party as if herein fully set forth; also that the opinion of the court upon the exceptions to said master’s report may be read from the report in Boyer’s Est., 20 W. N. 207, 208.....</p> <p>The court shall make such order and enter such judgment as shall be just and lawful. Both parties reserve the right to writ of error, etc.</p> <p>On December 13,1888, the court, Finletter, P. J., entered judgment for defendant on the case stated. The plaintiff then took this writ. No assignment of error ajipeared in the paper book of the plaintiff in error.</p>

EROM THE DECREE OE THE ORPHANS5 COURT OE PHILADELPHIA COUNTY. No. 159 January Term 1889, Sup. Ct. On April 11, 1888, tlie account of Stanislaus J. Allen, executor of the will of Daniel Allen, deceased, was called for audit before Ashman, J., when it was made to appear that the testator died testate on August 12, 1884, leaving a widow and eleven children, seven of whom were then minors.

<p>(а) Patents were owned by two persons, jointly, each of whom were manufacturing and selling the patented articles in competition with each other when they entered into a written contract, one agreeing to discontinue the manufacture and sale of the articles, in consideration of the payment of royalties to him by the other.</p> <p>(б) The contract so entered into was silent as to the period it was to continue in force, and, when some time had elapsed and after notice, one of the parties refused to continue under it, when the other filed a bill to enforce performance for an account, and for the continued payment of royalties according to its terms.</p> <p>1. In such case, it was competent for the defendant to prove by oral testimony that the parties did not intend to bind themselves for any definite, period of time, but purposely left that to be settled either by a contemporaneous or subsequent agreement.</p> <p>2. The testimony of a single witness, to wit, the person who drew the contract, that it was verbally agreed by the pai’ties at the time that either one could terminate the contract at will, was sufficient, in the absence of festimony to the contrary, to establish that such verbal agreement was made.</p> <p>3. This finding, in connection with the further finding by the master, that the defendant under such parol contemporaneous agreement did terminate the contract, were sufficient grounds for a decree that the plaintiff’s bill should be dismissed.</p>

4 OF PHILADELPHIA COUNTY, IN EQULTY. No. 230 January Term, 1889, Sup. Ct.; court below, No. 362 September Term 1885, C. P. No. 4 in Equity. On September 23, 1885, John Mirkil filed against Samuel Morgan, George Evans and John D. Grover, a bill in equity charging them with the erection and maintenance of a nuisance to the injury of the plaintiff, and praying for an injunction, and for a decree awarding damages.

<p>ERROR TO THE COURT OF COMMON PLEAS NO 3 OF PHIL ADEL-PHIA COUNTY.</p> <p>No. 70 January Term 1889, Sup. Ct.; court below, No. 191 March Term 1886, C. P. No. 8.</p> <p>On February 26, 1886, William J. Stevenson began an action of ejectment against Henry K. Fox, executor of Joseph B. Stevenson, deceased, and Joseph S. Kobinson, Frank Slater and Joseph Wright, terre-tenants. The plea was, not guilty.</p> <p>On the trial before Finletteb, P. J., October 19, 1887, the jury found a verdict for the plaintiff, subject to a question of law reserved, arising upon the facts stated as follows:</p> <p>Ann Stevenson in her lifetime was seised in fee simple of the premises, to recover the possession of which the present action has been brought. The defendants are now, and were at the time of the service of the writ of ejectment, in possession of the said premises.</p> <p>Being so seised, the said Ann Stevenson departed this life, February, 1877, being then a widow, and leaving surviving her, inter alios, two sons, Joseph B. Stevenson and William John Stevenson. By her last will and testament, dated April 7,1870, and duly proved February 9, 1877, she provided, inter alia, as follows:</p> <p>“ Item. I give and bequeath to my son Joseph Stevenson the property on Howard street and extending back to Waterloo street, which property is now recorded in my name, and which has been given and bequeathed by my beloved husband William Stevenson, with my consent; and it is my will and I do so direct and bequeath the same said property to my son Joseph Stevenson to his heirs and assigns forever. Should my said son Joseph Stevenson depart this life without leaving lawful issue to survive him, it is my will and I so direct that said property as would have fallen to my deceased son, I direct that it shall be given to my son William John Stevenson, provided that the lawful issue of such deceased son shall be entitled to such property.”</p> <p>The will of William Stevenson, also dated April 7, 1870, and proved March 8, 1871, which is referred to in the above devise, provides for a life estate in his widow, Ann Stevenson, and directs that at the time of her death, “ My real estate shall be divided between my two sons William John Stevenson and Joseph Stevenson as follows, viz.:</p> <p>“ Item. I give and bequeath to my son, William John Stevenson, the property on Bodine street, No. 2012, and to his heirs and assigns forever.</p> <p>“Item. I give and bequeath unto my son Joseph Stevenson, the property on Howard street, and extending back to Waterloo street, to his heirs and assigns forever, which last-named property being now recorded in the name of my wife, Ann Stevenson. Should either of my two sons depart this life without leaving lawful issue to survive them, it is my will and I do so direct that such portion as would have fallen to such deceased son, I direct that it shall be given to my surviving son, provided that the lawful issue of such deceased son shall be entitled to such portion of my estate herein bequeathed to such deceased parent.”</p> <p>Arm Stevenson survived her husband and both sons survived their parents. William John Stevenson is still living, and Joseph B. Stevenson died December 23, 1884, testate, unmarried and without issue. The former is the plaintiff in the present action, and the property on Howard street, devised in the said wills, is the premises here sued for by him.</p> <p>The question of law reserved for the consideration of the court in banc is, whether, the facts being as stated above, the title to the premises in question became vested in William John Stevenson upon the death of his brother Joseph.</p> <p>Upon the question reserved, the court in banc, by Heed, J., rendered the following decision:</p> <p>The rule of property applicable to the present case is still in force in Pennsylvania in all its ancient strictness. The relaxation made in England has not been adopted by the courts of this state, and until the legislature changes the law, it must be presumed that in all devises and bequests of the character of these which appear in the wills of William and Ann Stevenson, viz.: a devise to A in fee, followed by a proviso that if A should die without leaving issue surviving him, then to B, the testator meant the death of A within the period of the testator’s own life, with the result that A surviving the testator takes a fee without any other condition or limitation, and that B takes nothing. If it is thought that no such intention can with good sense be imputed to the testator, then the law must by statute be brought into closer conformity with the facts of life. The latest authorities, Mickley’s App., 92 Pa. 514, and Fitzwater’s App., 94 Pa. 141, are in our opinion conclusive of the question before us.</p> <p>Judgment on the question reserved was accordingly entered for the defendants, whereupon the plaintiff took this writ, alleging that the court erred in so entering judgment.</p>

<p>1. To exempt an institution from taxation under § 1, article IX. of the constitution, and § 1, act of May 14, 1874, P. L. 158, it is an essential feature that it be a public charity, free from any element of private or corporate gain.</p> <p>2. When it is free from the latter element, and is an institution'devoted to charily by its act of incorporation, its character as such charity is not destroyed if to some extent it receive a revenue from the recipients of its bounty.</p> <p>3. Miller’s App., 10 W. N. 168; Thiel College v. Mercer Co., 101 Pa. 530; Hunter’s App., 22 W. N. 361; 8. C. 1 Mona. 1; and Donohugh’s App., 86 Pa. 306, explained.</p>

<p>Where an auditor, appointed to distribute a fund, found the facts upon conflicting evidence and recommended a decree logically proper as based upon his findings, it is error for the court below to reverse the decree without showing or attempting to show that the findings of fact were erroneous: in such ease, the decree of the court below, having nothing to sustain it, will itself be reversed.</p>

<p>Where, on a sheriff’s interpleader, the claimants showed a written agreement between themselves and the execution defendant whereby in consideration of a fixed sum to be paid in monthly instalments, they agreed to let to hire to the latter the property levied upon, for a term of years, and in case of no default, to execute a bill of sale of the property, the agreement as to the creditors of the execution defendant was a bailment and not a conditional sale: Rowe v. Sharp, 51 Pa. 26 ; En-low v. Klein, 79 Pa. 488.</p>

<p>Where, under an arrangement between the sheriff and garnishees, printing is done for the latter in the defendant’s printing house while in the sheriff’s possession under an execution, and the sheriff is paid the price charged and applies it to the writs in his hands, the garnishees are not liable therefor to the attaching creditor.</p>

<p>(а) A testator bequeathed the one half of his residuary estate to his executor, in trust to keep the same invested and to pay the income to his brother and sister, during their lives, the one half to each, and upon the death of either to pay the one half of said income to his or her children.</p> <p>(б) The widow of the testator, for whom other provision had been made in the will, died, and subsequently- the testator’s brother died without, issue, and at the adjudication of the trustee’s account it ap2)eared that the balance of income for distribution was but $1.74.</p> <p>1. It was not error for the court to direct this balance of income to be retained by the trustee to be thereafter accounted for, and, whether the surviving sister was entitled to the whole of the income during her life, would be determined when there was income for distribution.</p> <p>2. Until the death of the brother, it could not be known that he would leave no issue, and the widow having died before him, query, whether any 2iortion of the income accruing after the death of the brother would be payable to the widow?</p>

1 OF PHILADELPHIA COUNTY. No. 240 January Term 1889, Sup. Ct.; court below, No. 147 December Term 1886, C. P. No. 1. On January 4, 1887, a summons in case was issued in an action brought by Morris Bernheimer against the Pbilade]phia Traction Company. The declaration charged injuries to the plaintiff’s horse and carriage caused by tbe negligence of tbe defendant company’s employees. Issue.

<p>When a railroad company, in disregard of a shipper’s instructions and of its undertaking, forwards merchandise by steamer instead of by rail, and the merchandise is lost by fire on the steamer, the carrier is responsible for the loss in an action on the contract, the question of proximate cause as in an action for negligence being immaterial.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE DELAWARE COUNTY.</p> <p>No. 91 July Term 1887, Sup. Ct.; court below, No. . . . ..... 1885, C. P.</p> <p>On November 5, 1885, an action of assumpsit was brought by Abigail Baker, Caroline J. Baker, Frederick W. Baker, Jeremiah M. Baker, James A. Baker and Levis G. Baker, heirs at law of William Baker, deceased, against Bennett Temple, to recover upon a note of which the following is a copy :</p> <p>“ $1,000. West Chester, Pa., October 25, 1882.</p> <p>“ One hundred and fifty-eight days after date we promise to pay to the order of Administrators of William Baker, at the First National Bank of West Chester, One thousand dollars, without defalcation, for value received.</p> <p>“ Credit the drawer. Alebed Mancill & Son.”</p> <p>[Indorsed].</p> <p>Bennett Temple.-</p> <p>Frederick W. Baker.</p> <p>James A. Baker.</p> <p>Levis G. Baker.</p> <p>The plaintiffs declared against the defendant as one of the makers of the note, also as a guarantor thereof, also as an indorser thereof, and upon the common, counts. The defendant pleaded, non assumpsit.</p> <p>At the trial on March 14, 1887, before Clayton, P. J., the jury returned the following special verdict:</p> <p>That- the note in suit was given by the makers to the holders to secure hand-money for the purchase money of real estate which the makers afterwards refused to take. The said real estate was the property of and sold by the present holders of the note.</p> <p>That the administrators were made payees of the note for the use of the heirs, the present holders.</p> <p>That the note was indorsed by Bennett Temple, the defendant, in blank.</p> <p>That his name was written under the words, “ credit the drawer,” at the same time his indorsement was made, and none of the blanks were then filled.</p> <p>That the words “ administrators of William Baker ” were written as payees after the said indorsement by B. Temple, and after his name on the face of the note under the words, “ credit the drawer.”</p> <p>That the indorsement by the administrators was made after the indorsement of Bennett Temple had been written on the note.</p> <p>That the plaintiffs have exhausted their legal remedies against the makers of said note and have not been able to realize because of insolvency.</p> <p>That they are ignorant of the law. If the court shall be of opinion upon the above facts, that the plaintiffs are entitled to a verdict, then they find for the plaintiffs for $1,237.50, otherwise we find for the defendant.</p> <p>On May 2, 1887, a rule for judgment for the defendant on the special verdict, was discharged, the court, Clayton, P. J., filing the following opinion:</p> <p>The suit was upon a promissory note, irregularly indorsed by the defendant. In addition to the irregular indorsement, the defendant had also written on the left of the margin at the bottom of the note the words, “credit the drawer,” and had signed his name to these words. The jury found the following special verdict:.....</p> <p>The questions raised by the special verdict are two :</p> <p>1. Whether the words,- “ credit the drawer,” signed by the defendant, are not a sufficient memorandum in writing to take the case out of the operation of the statute of frauds, and make the defendant liable as a guarantor of the note.</p> <p>2. Whether the evidence, in connection with the said words, “ credit the drawer,” is not sufficient to create an original agreement or understanding that the defendant should be primarily liable to the holder of the note for value.</p> <p>The case is certainly a very interesting one, and the questions involved have never been directly decided in Pennsylvania. If it were not for the words “ credit the' drawer ” separately signed by the defendant, the case would be undoubtedly ruled in favor of the defendant by the case of Schafer v. Bank, 59 Pa. 144. In the case of Roth v. Barner, 2 Penny. 214, these words were held as having some bearing upon the question of collateral or original undertaking. The special contract, implied as well as expressed by the use of the words above mentioned, would seem to so connect the defendant with the making of the note and its consideration, as to make him equally liable with the makers.</p> <p>To give full effect to the contract intended to be expressed by the words referred to, let us suppose the contract, intended to be expressed, had been written on a separate instrument. It would read as follows: “A. Mancill & Son have this day made their promissory note for $1,000, which 1 have indorsed for their accommodation. The person to whom said note may be given for value is hereby authorized to give credit to said A. Mancill & Son.” Signed by Bennett Temple, and dated the same day the note bears date.</p> <p>What woúld be the proper construction of such a paper in the hands of the plaintiffs, together with the note, for full value ? If it is a collateral undertaking to answer for the default of the makers, is it not a sufficient memorandum in writing, signed by the party to be charged? Bearing even date with the note and signed by the person who had indorsed the note, though in such a way as not to make him liable as indorser, would not its effect be to make him liable as an original party to the note ? If the defendant was a party to the original contract, the evidence need not be in writing. In such a view of the case the jury could look at the note, the indorsement, the words “ credit the drawer,” and all the parol testimony, and say whether the contract was original or collateral: Leech v. Hill, 4 W. 448; Schafer v. Bank, 59 Pa. 149. -</p> <p>The reason given in Schafer v. Bank, p. 150, for relieving the irregular indorser is as follows: “ He might well argue: This note cannot be discounted without the name of the payee upon it, and if it be written over my name it will not be an assignment to me but to some subsequent holder. No bank or other cautious party will take it upon, my responsibility without an explicit understanding with me on the subject.” Are not the words “ credit the drawer,” signed by the indorser upon another part of the note, a sufficiently explicit understanding with him upon the subject ? Would not an ordinarily cautious man when he noticed the irregular indorsement, naturally look to the additional signature as intended to create a liability, notwithstanding that the indorsement in itself did not?</p> <p>After a careful consideration of the whole case I am of the opinion the plaintiffs are entitled to judgment on the special verdict. So ordered.</p> <p>Judgment having been entered in favor of the plaintiffs, the defendant took this writ, assigning as error the entry of judgment for the plaintiffs, and not for the defendant.</p>

<p>(a) A statement of claim filed under tlie procedure act of May 25, 1887, P. L. 271, averred that the payee of a note sued upon, “by delivery transferred the same to the plaintiffs,” without an averment of the date of transfer, or of value, or consideration passing from the plaintiffs to the payee.</p> <p>(b) The affidavit of defence set up fraud in the procurement of the note, giving the particulars thereof, and averred upon information and belief that the note was passed to the plaintiffs by the active agent in the fraud, “ in payment and satisfaction of an old debt.”</p> <p>1. The procedure act requiring, not only a copy of the writing sued upon, but a statement of his case, to be filed by the plaintiff, the statement filed in this cause did not show that plaintiffs were bona fide holders for value before maturity with sufficient certainty to entitle them to summary judgment.</p>