Volume 126 — Pennsylvania State Reports

<p>ERROR TO THE COURT OF COMMON PLEAS OE BERKS COUNTY.</p> <p>No. 286 January Term 1889, Sup. Ct.; court below, No. 47 November Term 1885, C. P.</p> <p>The proceeding below was the trial of an issue between Mary Balthaser, widow, Prank Balthaser and others, children and devisees of William Balthaser, deceased, as plaintiffs, and the Reading & Pottsville Railroad Company, now the Pennsylvania Schuylkill Yalley Railroad Company, as defendants, formed in an appeal from a report of viewers in the assessment of damages to land.</p> <p>A judgment entered upon the verdict of a jury returned on April 18,1887, in favor of the plaintiffs for $8,040.64, was reversed in this court on April 2, 1888, the case being reported : R. & P. R. Co. v. Balthaser, 119 Pa. 472.</p> <p>The record having been returned, the cause was again called for trial on September 19, 1888. Mary Balthaser called for plaintiffs, testified to the death of William Balthaser, her husband, gave the names of the children, and stated that she was in possession of the premises in 1885, when the railroad was located thereon. On cross-examination by defendant’s counsel, she stated that at the time the railroad was located, Atkins Brothers, under a lease made to them by herself and the heirs, were operating a quarry upon the premises.</p> <p>Walter W. Balthaser, a son of William Balthaser, and one of the plaintiffs, was called, and testified that he had transacted the business with Atkins Brothers with reference to the lease referred to.</p> <p>Mr. Ruhl, for the plaintiffs, proposed to ask the witness whether it was a written or an oral lease, the purpose being to identify the part of the tract leased to Atkins Brothers and the tenure by which it is held.</p> <p>Mr. Derr: Objected to by defendant, (1) because there is no lease described in the petition, which must be regarded as the plaintiffs’ declaration in this case; and as evidence offered in chief by the plaintiffs it is objectionable, because it creates a variance between the ease described in the petition and that offered in the oral testimony; (2) it is generally irrelevant and inadmissible.</p> <p>By the court: Objection overruled; exception.1</p> <p>The witness testified that in 1885, when the railroad was located, Atkins Brothers wore operating a quarry on a portion of the tract, not touched by the railroad appropriation, under a verbal continuance of a written lease the term of which had ended in 1888.</p> <p>The same witness testified that the plaintiffs carried on the business of quarrying and selling stone and burning lime.</p> <p>Q. State where you sold your stone and how they were shipped ?</p> <p>Objected to, as being incompetent and irrelevant, in chief.</p> <p>Mr. Ruhl: The purpose of this question is to show by the witness that the market for the plaintiffs’ stone was in Schuylkill county, along the line of the Schuylkill canal. The law requiring the witness to weigh the advantages against the disadvantages, the purpose of this offer is to show that there are no advantages to this property by reason of the location of the road, so far as shipping of stone is concerned, and as bearing upon the market value of the property at the time of the appropriation by the railroad company.</p> <p>By the court: Objection overruled; exception.3</p> <p>The witness then testified that the most of the stone was shipped by the Schuylkill canal, and that in hauling the lime to the wharf they could make about twenty trips per team a day, about twenty bushels per load, and were not required to have a driver; that after the location of the railroad, not so many trips could be made in a day, and not so large loads could be taken, and drivers were necessary.</p> <p>Cross-examined:</p> <p>Q. At the time of the construction of the defendant’s railroad you had the canal as a means of transportation and the Moselem branch of the Philadelphia & Reading Railroad ? A. Yes, sir. Q. That is the small branch of railroad that comes over from near Leesport across the bridge to the quarry ? A. Yes, sir. Q. The canal has recently been abandoned beyond Schuylkill Haven ?</p> <p>Objected to, as immaterial and as not cross-examination.</p> <p>' By the court: On cross-examination the defendant is confined to the condition of transportation at the time of the location and construction of the road.</p> <p>Q. Do you know that the Philadelphia & Reading Railroad Company, who own that branch across the river, previous to the construction of the defendant’s railroad charged fifteen cents per ton across to Leesport ?</p> <p>Objected to.</p> <p>Mr. Derr: This question is proposed to be followed by a question as to whether the Philadelphia & Reading Railroad Company did not, after the construction of the defendant’s railroad, discontinue making the said charge, and carry the freight to Leesport free.</p> <p>Objected to as not cross-examination.</p> <p>By the court: Objection sustained; exception.3</p> <p>The same witness, continuing, made the depreciation of the market value of the tract, as affected by the location of the railroad, to be $12,000. This was the amount of damages estimated by the witness on the former trial.</p> <p>Cross-examined:</p> <p>Q. When you testified before, you made the damages $12,000 too ; did you not ? A. Yes, sir. Q. And in that estimate you included the stone that you said the railroad company took; did you not ? A. That was one way of itemizing the damages, but this is in a different way. Q. You included the stone that the railroad company took in the other estimate ? A. That was one way to estimate the value of this property. Q. You know that the Supreme Court decided that we could not be charged with the taking of stone; do you not ? A. Not a stone land. Q. Do you not know that the Supreme Court, since the other trial, have decided that you cannot charge us and cannot claim from us for taking, stone ? A. No, sir.</p> <p>Objected to.</p> <p>Mr. Derr : It is now proposed by the defendant to ask the witness upon the stand upon cross-examination as to whether he does not know that the Supreme Court after the other trial decided that the plaintiffs could not claim anything from the defendant for any alleged taking of stone, and as to whether he has not modified his mode of making up these damages in consequence of that decision, and in order to get around that decision, leaving the amount of his estimate the same, but pretending to get at it in a different way.</p> <p>Mr. Ruhl: Objected to by plaintiffs, because it is immaterial and irrelevant. The witness cannot be asked to construe the decisions of the Supreme Court; the Supreme Court never decided that.</p> <p>By the court: Y ou can inquire as to whether his estimate is different from what it was at the last trial, with a view to contradiction. I do not think you should inquire what the Supreme Court has decided. You may inquire as to whether he changed his estimate. The objection is sustained; exception.0</p> <p>Other witnesses, called for the plaintiffs, presented estimates of damages in the same amounts as were their estimates on the former trial, from which it was claimed by the defendant that the witnesses must have taken into consideration the value of the limestone under the appropriation, as an element of the injuries.</p> <p>The court, Hagen m an, P. J., charged the jury and answered the points presented as follows :</p> <p>A number of points are submitted to the court by counsel on both sides, and before referring to the evidence 1 will take up these points and answer them. After that, 1 will refer to the evidence.</p> <p>The plaintiffs’ points are as follows [inter alia] :</p> <p>1. The value of plaintiffs’ land as limestone land is a proper subject of consideration in estimating the damages ; if the jury find that the plaintiffs’ tract is limestone land, and has a greater market value on that account than for farming purposes, its value as such limestone land should be considered by the jury in estimating the damages plaintiffs’ land sustained by reason of the location and construction of defendant’s railroad upon it.</p> <p>Answer: This point is affirmed.</p> <p>2. The value of plaintiffs’ land must not be limited to, or measured by, a particular use ; it is its general market value for any purpose that will induce persons to purchase, which is the true test. The use to which the property has been or may be applied is proper for the consideration of the jury, in the estimate of its value ; its adaptation for any particular purpose may enhance its market value. If plaintiffs’ property, by reason of its location, or otherwise, is especially adapted to any particular use to which it is applied, if it is worth more for that particular use than for any other, its market value must be measured accordingly.</p> <p>Answer: This point is affirmed.</p> <p>The defendant’s points are as follows :</p> <p>■ 1. The petition in this case describing the plaintiffs’ property generally, without excluding therefrom or mentioning the outstanding leasehold interest which Mary Balthaser and Walter Balthaser, two of the plaintiffs, admitted was vested in Atkins Brothers as to part of the said property at the time of the appropriation, there can be no recovery under the pleadings and evidence in this case.</p> <p>Answer: This point is answered in the negative.8</p> <p>* * * * * * * *</p> <p>7. It is impossible to place a value upon the limestone underlying, or supposed to underlie, the defendant’s railroad, because neither the quantity nor the quality thereof can be determined; the law, therefore, will not permit the plaintiffs to charge the defendant with the supposed value of such stone, either directly at so much per ton, or indirectly by making the supposed quantity or value thereof a basis of estimating the market value of the land taken; and the estimates of all the plaintiffs’ witnesses, excepting Reuben Wanner, being based upon that theory, such estimates must be disregarded by the jury.</p> <p>Answer : This point is affirmed.</p> <p>9. The jury are to estimate the damages in this case by the difference in the market value of the plaintiffs’ property before and after the construction of the railroad, as affected thereby; they are not to allow more damages because the property was taken without the plaintiffs’ consent, nor because it was taken by a railroad company ; but they are to make their estimate just as they would if the plaintiffs voluntarily agreed to part with their property for a reasonable compensation, and if they had so agreed to part with it to an individual to be used for the same purposes and in the same manner.</p> <p>Answer: This point is affirmed, if the reasonable compensation is the market value of the property.9</p> <p>These are all the points which have been submitted; and we say to you again that the rule which shall govern you when you come to consider this case in your room, is what was the market value of this property before the railroad was constructed over it, that is, immediately before; and what was the market value of the property after the railroad was constructed over it. The difference, if any, is the true measure of damages which the plaintiffs would be entitled to recover.</p> <p>[What, then, is the evidence ? A number of witnesses were examined upon the part of the plaintiffs, and the damages which these witnesses have testified to that the property has sustained, that is, the difference in the market value, ranges from $5,000 to $12,000. The first witness examined was Walter W. Balthaser, and he estimates the damage to the property at $12,000. Isaac H. Rahn was the next witness, and he says $9,000. Francis Kaufman names $9,000. Reuben Wanner says $5,000. Conrad Hock names $9,000. William Grater says $9,000. George C. Hartman says $7,000. Harrison Epler says $8,000. You see those several witnesses vary in their estimate of the difference in the market value of the property. You are to take their testimony, examine it and weigh it. You have been upon the premises, and you yourselves have seen the property, and therefore you will weigh the testimony in connection with what your own eyes have seen.] 1</p> <p>In regard to the testimony of the plaintiffs’ witnesses, in speaking of the limestone, some of thezn referred to what they had testified to on the former trial about having made some kind of computation of the amount of stone which underlay the railroad. So far as any testimony of that kind fell from the lips of the plaintiffs’ witnesses, it must be disregarded by the jury. The jury do not calculate, nor take into account, the quantity of limestone which underlies the railroad. The only consideration which the jury can give to the testimony of the witnesses examined upon the part of the plaintiffs is, what was this property worth in the market before and after the construction of the railroad ? If it be limestone land, limestone land that is to be used in the manner in which this property has been used, it is more valuable than farming land. But the jury must disregard any estimate which any witnesses may have made of the quantity of limestone which underlies the railroad.</p> <p>* . X * X * -X- X- X-</p> <p>[After you have once ascertained that there is any damage, you will allow interest upon that sum from May 19, 1885, to the present time.]10</p> <p>My attention has been called to the seventh point of the defendant, and I will read it again, and then say to you what I have to say in regard to it.</p> <p>7. It is impossible to place a value upon the limestone underlying, or supposed to underlie, the defendant’s railroad, because neither the quantity nor the quality thereof can be determined; the law, therefore, will not permit the plaintiffs to charge the defendant with the supposed value of such stone, either directly at so much per ton, or indirectly by making the supposed quantity or value thereof a basis of estimating the market value of the land taken, and the estimates of all the plaintiffs’ witnesses, excepting Reuben Wanner, being based upon that theory, such estimates must be disregarded by the jury.</p> <p>This point we affirmed, and we say to you now, that all' the testimony from any part of the plaintiffs’ witnesses who spoke of valuing the limestone underlying the railroad, must be disregarded by the jury, and the testimony of those witnesses must be taken, not to the stone underlying the railroad, but what was the true market value; and if their market value that they testified to has reference to the limestone which underlies the railroad, and making that a special part of the difference in the market value, that must be disregarded by the jury.</p> <p>The jury returned a verdict in favor of the plaintiffs for $6,975.51. A rule for a new trial having been discharged, the defendant took this writ, assigning for error, inter alia:</p> <p>1, 2. The admission of the plaintiffs’ offers.1 3</p> <p>3, 5. The refusal of the defendant’s offers.3 6</p> <p>7. The portion of the charge embraced in [ ] T</p> <p>8, 9. The answers to the defendant’s points.8 9</p> <p>10. The portion of the charge embraced in [ ] 10</p>

<p>(а) The lessees of an ochre mine covenanted to pay for every ton of oehre taken 25 cts., payable quarterly, and to take each year not less than 500 tons, “ or pay for the same at the end of each and every year, in default of which the above lease is to be null and void.”</p> <p>(б) And further, “ that if the (lessees) during any previous year or years iiave taken away more than 500 tons of said clay or ochre, they shall not pay more tons of clay or ochre than they have taken away during any year, unless the aggregate number of tons amounts to less than 500 tons per year.”</p> <p>(c) And “ it is further agreed that if any of the covenants above mentioned should not be complied with for tile term of three months, then the above lease is to be null and void.”</p> <p>1. The stipulation for the termination of the lease for the non-payment of the royalty “.at the end of the year,” in par. (a) must be read together with the general stipulation in par. (5) for the termination of the lease “ if any of the covenants above mentioned should not be complied with for the term of three months.”</p> <p>2. Wherefore, though the unpaid royalty was due and demandable at the end of a year from the date of the lease, yet a forfeiture of the lease could not be, asserted by the lessor until three months default had elapsed after the end of the year.</p> <p>3. Whether this was a ease in which a bill would lie, or whether the remedy at law by ejectment was adequate, and whether a demand for the rent was a prerequisite to the plaintiff’s enforcement of a forfeiture, not decided.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE MONROE COUNTY.</p> <p>No. 56 January Term 1888, Sup. Ct.; court below, No. 20 December Term 1884, C. P.</p> <p>On November 26, 1884, Byron E. Hamlin, administrator d. b. n. c. t. a. of John Widmer, deceased, brought ejectment against Reuben Thomas, James T. Carmer, Benjamin Took and Julia, his wife, and Edward Nevil, to recover certain real estate in Stroudsburg. Issue.</p> <p>At the trial on October 7, 1886, the plaintiff showed that John Widmer, died seized of the premises in dispute on June 21, 1871, leaving a will dated June 2, 1870, duly admitted to probate, which provided:</p> <p>“ I give and bequeath unto my dear wife Lydia Widmer the whole of my double dwelling house, being the same double house the half of which we do occupy at the present, with stable and other outbuildings, and the whole of the lot of land belonging to the same, adjoining the land I purchased of James H. Stroud in the east, and land I sold to Jerome S. Williams in the south, and on lands of Zacharia Flagler in the west, situate on Sarah street in the borough of Stroudsburg, for the use and benefit of my said wife during her life; and from and after her decease I order that my hereinafter named executor shall sell the same at public vendue, and convey the same by deed to the purchaser or purchasers thereof, and all the proceeds arising therefrom I do bequeath to my four children, two sons and two daughters (begotten by my first wife), to be paid to them by my hereinafter named executor, in equal shares, share and share alike,</p> <p>“I also bequeath unto my said dear wife all and whatsoever goods and property is in the said house and stable, consisting of furniture, store goods, and farming utensils.</p> <p>“ And as to all residue of my real and personal estate, I order that my hereinafter named executor shall sell at public vendue all my real estate, collect all outstanding moneys due me, convey the said real estate by good Meeds to the respective purchaser or purchasers, and likewise pay the whole of the proceeds thereof, after deducting expenses, to my four children aforesaid' in equal shares, share and share alike.”</p> <p>The plaintiff further showed that letters testamentary were issued to John DeYoung, the executor appointed by said will, on July 15, 1871, and that said DeYoung died December 23, 1874, without having finally settled his accounts as such executor; that Mrs. Widmer, the widow of the testator, died January 29, 1884, and that on March 26, 1884, letters of administration with.the will annexed were granted to the plaintiff in the suit. The plaintiff further showing that the defendants were in possession of‘the property described in the writ and that it was a portion of the property on Sarah street devised in the paragraph of the will first above quoted, rested.</p> <p>The defendants offered in evidence certain judgments entered against the testator during his lifetime, which were liens upon his real estate at his death and were afterwards satisfied by DeYoung, his executor; this to be followed by proof of the sale of- the property in dispute by DeYoung, the executor of the will, to the defendants or their vendors; that the sales were made, with the consent of the widow, for the purpose of paying the indebtedness of the estate and that the proceeds of sale were paid to the creditors.</p> <p>The offer was objected to as incompetent and irrelevant; the defendants must show the power of the executor to make the sale, and the existence of debts due by the testator could not of itself confer a power.</p> <p>By the court: Objection overruled, offer admitted; excep- ' tion.3</p> <p>Edward Nevil, one of the defendants, was called and asked if he knew of any agreement between the widow and DeYoung as to the sale of the property. Objected to.</p> <p>Defendant proposed to prove by the witness that the widow Widmer came to him prior to the sale of the lots in question, and told him there were debts against the estate, and the real estate would have to be sold; that she urged him to buy one of the lots adjoining the homestead, and that she would get her daughter, Mrs. Amanda Fetherman, to buy the lot adjoining on the other side of the homestead, and some one else would buy the lot on Monroe street, and by that means it would save the dwelling house and lot for a home for herself ; that it was agreed by parol between the widow and John DeYoung, the executor, that the lots in question should be sold to pay the debts, and save a home for the widow; that subsequently the lots were sold at public sale in pursuance of that agreement; that the widow was present when the lots were publicly sold to Edward Nevil and Samuel Emery, and that she ‘ made no objection to the sale, and that the widow bid in the lot at the public sale for her daughter Amanda Fetherman, to whom it was subsequently conveyed by the executor, and that the widow acquiesced in these several sales up to the time of her death.</p> <p>Objection: Incompetent, immaterial and irrelevant; that the want of power in the executor to make a sale under the will cannot be cured by the verbal declarations or statements of the widow, to the witness or other parties; and that the witness, as the grantee under the pretended sale by the executor, is incompetent to testify in his own behalf, and that the witness is testifying in his own behalf as against the rights of the deceased widow of John Widmer, deceased.</p> <p>By the court: Objection overruled, offer admitted; exception.1</p> <p>The testimony of the witness sustained the offer, except in the respect that he was not present at the sale of the.lot bought by Mrs. Fetherman.</p> <p>Other witnesses testified for the defendants to facts showing consent to the sales on the part of Mrs. Widmer.</p> <p>The defendants then offered in evidence the deeds for the premises from DeYoung to themselves or their vendors, which being objected to for want of power in the executor, the objection was overruled and offer admitted; exception.8</p> <p>In rebuttal, the plaintiff adduced the testimony of two witnesses as to declarations made by Edward Nevil and his wife at different times to the effect that Mrs. Widmer had always objected to tbe sale and claimed that DeYoung had no right to make it.</p> <p>The court, Dbehek, P. J., charged the jury and answered the points presented as follows:</p> <p>By his will the testator gave his executor power to sell his real estate, and the effect of this grant of power was, to vest in the executor the right to maintain ejectment for any lands belonging to the estate of Widmer, and under the law the present plaintiff is invested with all the powers granted to the executor under the will. Therefore, it being admitted that the land in controversy belonged to John Widmer at the time of his death, the plaintiff, as the representative of the estate of Widmer, will be entitled to your verdict, unless the defendants have shown a good title acquired since the death of Widmer, as against the plaintiff.</p> <p>********</p> <p>It is unfortunate for all parties that a competent lawyer was not consulted at the time the sales and deeds were made. He would, undoubtedly, have advised that the widow join in' the deeds, or that the executor should apply to the Orphans’ Court for an order of sale. This, however, was not done, and the question of the widow’s assent must now be determined by the jury under the evidence. The burden rests upon the defendants to show by clear, certain, satisfactory and indubitable evidence that the widow, before the sales were made, gave her full consent that the executor should sell these lots for the payment of the debts of the testator. Land is usually conveyed by writing, for the reason that being of so permanent a nature, the law, in its wisdom, requires that there shall be some deliberate act done, as evidence of sale and purchase, and that there may be some public record, made of the transfer of title and possession; but, as [in the case of a power under a will to sell real estate, after the death of a life tenant, the law permits the consent of the life tenant to a sale to be in parol, or merely verbal,]2 yet it holds the very strict rule I have just stated as to the certainty and clearness of the evidence necessary to prove such consent.</p> <p>The defendants allege that the lands of the testator outside of what is called the homestead, were not sufficient to pay his debts, and that upon consultation between the executor and the widow they concluded to sell the lots in controversy, off the homestead, and leave the house and a lot with it for the widow during life. Now, if the evidence satisfies you beyond any reasonable doubt that such was the fact; that the executor and the widow, believing it was necessary to sell these lots to pay the debts, and she freely gave her consent to such sale; and in pursuance of such consent and understanding, these lots were sold, then we say to you your verdict should be for the defendants.</p> <p>* * * * * * *</p> <p>The plaintiff requests the court to charge [inter alia] :</p> <p>2. If the jury believe that the widow gave her consent to such sale in ignorance of her rights, or under a misapprehension or misunderstanding of her rights, then such consent did not cure the defect in the sale of the real estate.</p> <p>.Answer: I cannot affirm this point, under the circumstances of this case.4</p> <p>3. If the widow consented to such sale under the representation of the executor or any one else that such sale was necessary to pay pressing debts, and save her home, when there was no such necessity for such sale, then the sale was null and void.</p> <p>Answer: Negatived, unless the jury should believe, under the evidence, that such representation by the executor was a wilful misrepresentation, with intent to mislead or deceive the widow.5</p> <p>4. That the evidence of Edward Nevil, Margaret Nevil, Wm. H. Nevil, and Anna Nevil, is not sufficient to establish the fact that the widow gave her consent to the sale.</p> <p>Answer: I cannot affirm this point. The evidence is for the jury; and you will bear in mind what I have said in the general charge as to the evidence, in respect to certainty, fulness and undoubted character, to establish the consent of the widow.6</p> <p>5. That the devisees of the remainder of the estate, having had no notice of the widow’s assent, cannot be affected by her acts.</p> <p>Answer: Negatived.’5'</p> <p>6. There being no evidence that the alleged consent of the widow was communicated to Samuel Emery, before or at the time he purchased, the sale as to him was null and void, and conveyed no title.</p> <p>Answer: Negatived.8</p> <p>7. The waiver of the widow, or consent that the life estate devised to her should be sold, can only be determined by plain and unequivocal acts or declarations, under a full knowledge of all the circumstances and of her rights. She was not bound to make any choice until she was fully informed of the relative value of the things she was to choose between.</p> <p>Answer: Negatived.9</p> <p>The defendants request the court to charge [inter alia] :</p> <p>1. A power given to executors to sell at the death of the widow is well executed if the widow, for whose benefit the sale was postponed, waives said benefit by any means effective in closing her mouth against subsequent objections; and the remaindermen cannot complain that the particular estate was yielded before it would otherwise fall.</p> <p>Answer: Affirmed. The jury will remember what I said in the general charge as to the character or kind and quantity of evidence necessary to show the consent of the widow.10</p> <p>2. If the jury believe from the evidence in the cause that the widow of John Widmer, the testator, agreed with John DeYoung, the executor, to waive her right as tenant for life in the real estate sold, and described in this writ, for the purpose of paying the debts of the estate, and saving a home for her, the sales were valid, and the verdict of the jury must be for the defendants.</p> <p>Answer: Affirmed. As I have said in the general charge, the evidence must be full, clear, certain and undoubted.11</p> <p>The jury returned a verdict in favor of the defendants, and judgment was entered thereon. Thereupon the plaintiff took this writ and assigned as errors:</p> <p>1-3. The admission of defendants’ offers. 110 3</p> <p>4-9. The answers to plaintiff’s points. 4 t0 9</p> <p>10, 11. The answers to defendants’ points. 10 11</p> <p>12. The part of the charge embraced in [ ] 18</p>

No. 157 January Term 1889, Sup. Ct.; court below No. 7 February Term 1887, C. P. On January 10, 1887, Henry Serfass, and others who were heirs at law of Sally Ann Serfass, deceased, brought an action of ejectment against Frank Dreisbach for a tract of fifty acres of land in Tunkhannock township.

<p>Under the rules and laws of the fraternity, the union effected in 1882 'between the Ancient York Masons, composed of colored persons, and the Free and Accepted Masons, also composed of colored persons, was a legal union, and real estate which had been given in trust for certain lodges of the Ancient York Masons prior to 1882, vested in the Most Worshipful Grand Lodge of Free and Accepted Masons formed by the union, and in the lodges of the Ancient York Masons, benefited by the trust, which came into the union.</p>

<p>EEEOE TO TTTE COtJET OE OYEE AND TEEMINEE OE UUZERNE COUNTY.</p> <p>No. 412 January Term 1889, Sup. Ct.; court below, No. 165 January Term 1889, Q. S. cert, to O. and T.</p> <p>On January 9, 1889, tbe grand jury returned as a true bill an indictment charging Michael Eizzolo with the murder of Bernard McClure and Hugh Flanigan, employees of Charles McFadden, a railroad contractor, on October 19, 1888, upon a mountain road about two miles from the village of Miner’s Mills. The prisoner had been arrested and committed on January 8d. The case was set down for trial on January 29th, when at the request of the defendant it was continued to February 6th, and then again continued to the next day.</p> <p>At the trial on February 7, 1889, the counsel for the prisoner moved for a change of venue, alleging as ground thereof the great excitement and prejudice against him in Luzerne county, and asked for a rule to take the testimony of witnesses. The court refused to grant the rule to take testimony, but offered to hear at bar any testimony in support of the petition. No testimony was offered and the motion was refused.1 3</p> <p>Counsel for the prisoner then filed motions to quash the array of jurors for the term, and also the indictment, the ground alleged in support of the motions being that, while the order of the court for filling the jury wheel for the year 1889 specified 1550 as the number of names to be placed therein, yet, as shown by the testimony of a witness who had counted the names on the list, the names so placed in the wheel aggregated 1554. One of the jury commissioners, producing the certified list of names, testified that the intention of the commissioners was to place 1550 names in the wheel; that they did so place that number in the wheel, as certified on said list, and that they had no knowledge that four additional names had been put in. The motions were refused.34</p> <p>Certain jurors were called, who stated on their examination that they had formed opinions concerning the guilt or innocence of the prisoner from what they had read in the newspapers about the murder, but all said they could render a verdict upon the evidence uninfluenced by such opinions. The challenges were all overruled and the jurors were sworn.5</p> <p>The commonwealth offered in evidence a confession alleged to have been made orally to R. J. Linden, at Philadelphia, taken down by a stenographer, transcribed and mailed to Wilkes-Barre, and there signed by the prisoner. It was objected, on the part of the prisoner, that the confession offered was preceded by an engagement on the part of one Thayer, a subordinate of Linden, that the prisoner should be protected both from punishment by the law and from the vengeance of Bevivino, implicated by the confession as the guilty actor; that Thayer had said to the accused after his arrest and being brought before the chief, “ that he had better tell the captain all he knew and it would be better for him.” It was shown on the part of the commonwealth that, before giving his confession, the prisoner had been fully cautioned by Linden and told that anything he said would be used against him. The objection was overruled, and the offer admitted.6 7</p> <p>The facts of the case sufficiently appear from the charge of the court, Rice P. J., which after general instructions defining the crime of murder at common law and under the statute, proceeded:</p> <p>Now, gentlemen of the jury, having thus stated the general principles which govern the consideration of the different grades of crime which are included in this indictment, I call your attention briefly to some of the facts which we think it is safe to say are undisputed, or at least which are proved by testimony which is not contradicted.</p> <p>It would appear that on the morning of the 19th of October, Bernard McClure and Hugh Flanigan started from the works of Mr. McFadden, above Miner’s Mills, to come to Wilkes-Barre, for the purpose of getting money to pay the men employed at those works. They went to the Wyoming National Bank, and there obtained twelve thousand dollars in money, largely paper money, and also some silver and smaller coin. This was put in a satchel, and they started upon their return. They stopped for a moment at Miner’s Mills, at the post-office, and then started up the road which has been described to you by the witnesses. Mr. McFadden that same morning started down the road for the purpose of coming to Wilkes-Barre. On his way down a short distance, which has been described to you by the witnesses, above what is called the White House road, he found his horse standing in the road, and upon examination found the dead body of Bernard McClure under the wheel. He made no further examination at that time, apparently, but returned to his work, and having got his superintendent they again returned to this scene. They then found, about 500 feet below where McClure lay, the body of Flanigan, he also being dead, having been shot. The money that had been in the wagon was gone. The horse had been shot. The physicians have described to you the wounds which McClure received. They have also produced two bullets which were taken out of his body. They have described the third wound in the head, and have testified that either one of these would have been fatal. These circumstances would be very strong evidence that not only the crime of robbery, but the crime of murder had been committed.</p> <p>There is only one person who has given direct testimony as to what took place at that time, as to the circumstances surrounding that transaction, and that is the defendant. And for the purpose of bringing before your minds the circumstances of the killing, I will read an extract from the confession which he is alleged to have made to Capt. Linden, and then also an extract from the testimony which he gave upon the stand here. Speaking of McClure and Flanigan he says:</p> <p>“ When I got close to the forks of the road, McClure and Flanigan passed me, but I did not speak to them. When they got to the little hill they went slow and I followed them. T see Bevivino come out and shoot from the bushes. He shot McClure twice in the back ; then he shot the other man, but I didn’t think he hit him. Then Vallillo came up in front of them and shot the other man twice in the face. I had a revolver in my hand and was running after them. The horse run away and McClure was hanging with Ms feet under the wheel. When they had gone about twenty or thirty yards the old man fell out and Vallillo ran away down the road, and Bevivino looked at me mad, and told me to come. I went with him and when they got to the place where they afterward found the horse he stopped, and then Bevivino shot the horse and shot McClure again in the head. He then shot a good many times at the horse. I was standing still and he ' cursed me and got very white and said: ‘ Here, you hold this gun and if anybody comes you kill them.’ I held it, and with the knife he cut the straps that held the valise to the buggy, then put the valise on his shoulders and said: ‘ Let us go through here.’ It was raining and muddy and we went up and took the money and hid it a couple of miles from the scene of the murder; also the gun.”</p> <p>In the same connection I read to you the testimony that he gave here upon the stand, as taken down by the stenographer.</p> <p>“When I got to this place they passed me.” Q. “Who passed you?” A. “Mr. McClure and Flanigan, they passed me. When they passed me I suppose the old man spoke and he says, ‘ How do you do ? ’ I say, ‘ How do you do ? ’ When they passed I walk with Mm, that is, the buggy was going not on a trot but pretty lively; and they got away from me — well, here to that officer out to the front door, little closer than that. When I got there I was walking, I had an umbrella in my hand; I seen Bevivino come out of the bush and shot McClure once; after, he shot twice, I think, or tMee times, and McClure first. He was standing on the other side of the buggy, standing on the right side going up. After he shot McClure, McClure fell; he stood a little while and then fell on the .side. After he fell he shot the other man; he shot him two or three times; this here Flanigan, he stands, then he falls. After a little while the horse got scared and the time he shot the first time he looks at me, and that is the time he cursed me to follow Mm, when he looked at me; this here Flanigan was living yet, I suppose; I don’t know; but he was hanging after he spoke to me and cursed me.” ■</p> <p>Q. “ Who cursed you ? What did he say, how did he curse you ? ” A. “ He cursed me, you know.” Q. “ What did he have iu his hand?” A. “He had a rifle.” Q. “How did he have it pointed ? ” A. “ He didn’t have it pointed; he just look at me and look at me. So after he cursed me, you know ”—</p> <p>Q. “Tell what he said, how he cursed?” A. “He says J--C--, hurry up. He looked at me and he got kind of white. After he got white, yon see I thought the man — After he says that, I got scared from the way he spoke to me three or four days ago, that the man who would lose his courage he would got killed; that what made me pull out the revolver, and I shot three or four times while the horse was running, mind. The horse was running and those people they was most hanging pretty near dead; I don’t know whether they were or not.”</p> <p>Q. “ What distance were they away at the time you shot ? ” A. “ They got a little farther; because the horse got scared.” Q. “Goon.” A. “When he was shot this here Yallillo he come out and shot in front, and after that they got scared and run away. This old man he fell. T walked slow and he runs. He turns back again hut he didn’t tell me anything after he ”—</p> <p>Q. “ Who turns hack and looked at you? ” A. “ Bevivino. He turns and looked at me; he didn’t say anything at all but he was running; he was out of wind, I suppose. After he got to the place where the horse was found he went to work and shot the horse. After he shot the horse he went to work shot McClure head after lie was dead. Then he told me — ho go to work, he pulls out a knife, small pocket knife, he cuts the strap and take this here what you call the satchel. After he take the satchel he give me the rifle; he says, 4 Mike, take this and shoot whoever comes.’ I could not say anything; I could not hardly speak. We went across the road and wo went to the place where the gun was hided.”</p> <p>Now, gentlemen of the jury, under this testimony as to the circumstances of the death of Bernard McClure, and the testimony of the defendant as to how that took place, we have no hesitation in saying to you that according to all of the testimony, the killing of Bernard McClure was murder. It was murder of the first degree, because the killing was done by the persons lying in wait. It was murder in the first degree, because it was done in the perpetration of the felony of robbery; it was murder in the first degree because it was a wilful, deliberate, premeditated killing.</p> <p>Was the defendant responsible either as a principal or as an accessory to that crime ? That is the issue which you have been sworn to try, and that is the issue to which your attention has been ably and eloquently directed by the counsel on both sides of the case. According to his own testimony, he was present. According to his own testimony, he fired several shots with the revolver which he claims he had. According to his own testimony, he held the gun while Bevivino took the satchel containing the money. According to his own testimony, he went with Bevivino to the place where it was hid, and on two subsequent occasions went to the same place and took a portion of the money. Now, gentlemen of the jury, we say to you that if this testimony be believed — it is his own — then his acts if unexplained, would make him a principal, notwithstanding you were not satisfied that any of the shots fired by him caused the death of Bernard McClure.</p> <p>There has been considerable argument upon the one side and the other as to whether or not the defendant was the instigator or promoter, or first suggestor of this crime. We do not regard that as an essential fact to be found. If he was there voluntarily aiding and abetting in the commission of the crime, although it was suggested and instigated by another, he would be a principal, and would be responsible in the eye of the law along with the others. The difference in the moral guilt between the parties would be one which the law would not recognize.</p> <p>********</p> <p>With these general principles in view we now advert to what we said as to the effect of the defendant’s admitted presence and acts. And we repeat, that, unexplained, they would be sufficient to warrant a jury in inferring and finding that he was a principal, notwithstanding none of the shots fired by him had-a fatal effect.</p> <p>[What is the explanation ? It is contended upon the part of the defendant, that he did not know the crime was to be committed on that day, and that he came upon the scene unawares ; that he was not a free agent, but that he was coerced into what he did by fear of Bevivino and his alleged friends. This defence is to be considered in two aspects. In the first place, if you should find as a matter of fact from all of the testimony in the cause, beyond a reasonable doubt, that the fatal shots were fired by the defendant, then the fact that he was acting under the fear of Bevivino would not excuse or justify this act. Because, while a man may take the life of his assailant for the purpose of preventing the infliction of grevious bodily harm upon himself, or for the purpose of preserving his life, there is no principle of law which would justify or excuse Mm in taking the life of an innocent person in order to protect himself.] 8 [But in case you should find as a matter of fact that the fatal shots were not inflicted by the defendant, then you will inquire whether or not the acts which he performed there were coerced by fear of Bevivino; whether that explanation which has been given by the defendant is such as would show that he had not the power to form the wilful, deliberate and premeditated intent to take the life of McClure.] 9</p> <p>Now, gentlemen of the jury, we do not mean to prejudice your minds against the theory which has been set up here by the defendant. It has been presented to you with great power and ability and eloquence by his counsel, and we say to you we do not purpose to interfere with your convictions upon this question of fact. It is our duty, however, we think, to call your attention to all of the circumstances surrounding the transaction, and to ask you to scrutinize this allegation carefully, coolly, impartially.</p> <p>As has been stated to you, the defendant, while a competent witness under the law, is a man deeply interested in the result of your deliberations. So great was such interest of a person accused of this crime considered to be, that during all the history of the English common law, and of our own common law, until a very few years ago, he was not permitted to testify, because it was feared that the temptation to perjury was so great as to unfit him to be a truthful witness. We think that the law as it is at present is mueb wiser. There may be cases where a man, though charged with a crime of this nature, may explain the circumstances in such away as to convince the mind of the jury of the truthfulness of his testimony, and in such a case he ought to have the opportunity of so doing, because the jury are competent to judge, notwithstanding his interest, whether his testimony accords with the disinterested testimony in the case.</p> <p>I call your attention in the consideration of this theory, to the circumstances as they occurred at the time, and as they have been explained by the defendant himself, leaving out of view for the present, the confessions which it is alleged he made, and the statements which it it alleged he made before the commission of the crime.</p> <p>[Upon this question as to whether or not he was acting under duress and fear of Bevivino, and therefore not capable of forming a wilful and premeditated intent to take the life of McClure, I call your attention to his age. I call your attention to the power of will, to the courage, to the intelligence of the man, as exhibited by himself while upon the witness stand, and as shown by the testimony of other witnesses. All of these things are to be considered in determining as to whether or not he was acting under duress. I call your attention also, as to what threats were made at the time. Does the evidence show— does the defendant’s own evidence sllow — that there were such threats made at the time, in connection with what had transpired before, as led him as a reasonable creature to presume or fear that his own life or limb was in danger if he did not participate in the crime ? These are questions of fact for the jury. I am expressing no opinion upon them, but I am calling them to your attention and consideration. Yon will take into consideration the place where this occurred. Is has been argued that the defendant was going by an unusual road; that is to say, that he should have turned off to the right at the White House road, instead of continuing to follow McClure and Flanigan by the other road. You have heard his explanation as to that. He says his intention was to go first to his mother, before going to the shanty. I call y0ur attention to the evidence as to the number of shots fired by him, and as to the direction in which they were fired, and as to the aim which was taken by him, if any. I call your attention also to the testimony as to the distance between the point where he says he first saw Bevivino and the point where the horse stood when the money was taken out of the wagon. Was he in'going to that point— traversing that distance — acting under the coercion or dominating will of Bevivino, and in fear that unless he did so he would be in danger of loss of life or of limb himself? I call your attention also to his testimony to the effect that while the money was being taken from the wagon he held the gun with which the firing had been done. Was he then acting under coercion? Was he then, as a reasonable man, in reasonable apprehension of danger to himself in case ho should not continue to assist Bevivino in his conduct ?] 10</p> <p>Now, I repeat, gentlemen of the jury, that while I deem it my duty to call your attention to these various circumstances, distinctly, I am not expressing any opinion; I am not trying . to thrust indirectly into the jury box any opinion of my own.....</p> <p>Now, gentlemen of tlie jury, having called your attention to the circumstances which occurred at the time, as shown by the uncontradicted testimony in tbe cause, and as shown by tbe defendant’s testimony either here or elsewhere, T call your attention to the other circumstances in the case from which it is claimed upon the part of the commonwealth that this crime was planned beforehand, and that the defendant was a willing member of the combination which formed this plan.</p> <p>According to the defendant’s own testimony and admission, ho knew from the declarations of Bevivino that this crime was contemplated. He says that when it was first mentioned he thought it was a joke; but that the second time it was mentioned and thereafter, he appreciated that Bevivino was in earnest. You have heard the reason which he has given for not making known his knowledge. He says that it was by reason of threats which Bevivino made that either he or bis friends would make away with him in case lie should reveal the secret. That is for your consideration as explaining the fact that, possessing this knowledge that tbe crime was contemplated, he yet made no complaint to tbe officers of the law and gave no warning to the men against whom it was contemplated. [1 call your attention to tlie testimony with regard to the purchase of the guñ wbicb bas been offered in evidence. 1 do not purpose to go over that testimony in detail. But does tlie testimony show that it was done with a knowledge of the purpose to which it was to be put, on the part of tbe de- . fendant ?] 11 1 call your attention to tbe testimony of Antonio Napalillo as to the declarations which he alleges were made by the defendant to him; and here there is a conflict of evidence; not an absolute conflict in all particulars, but a conflict in a material particular. Both Napalillo and the defendant agree in saying that the plan of murdering and robbing McClure was suggested to Napalillo. .Both of these witnesses — that is Napalillo and the defendant — agree that Napalillo declined to have anything to do with it. Napalillo testifies, however, in effect that not only Bevivino, but also the defendant approached him for the purpose of inducing him to join the conspiracy, and made certain threats as to what would be done in case he should betray them. On the part of the defendant, he testifies that he never gave his assent to the undertaking, but that always when he gave a definite answer to Bevivino, it was to the effect that he could not do it. You will endeavor to reconcile the testimony of .the witnesses if possible. You are to take into consideration in weighing their testimony, the interest which they may have in the case. You are to consider in the defendant’s case the interest which he has in your verdict. You will consider in Napalillo’s case whether or not he is testifying as he does in order to shield himself from punishment. You are to take into consideration the manner of the testimony, the impression which the witnesses make upon your mind, as to being truthful and candid, or otherwise; and it is for you to decide what is the truth with regard to any disputed question of fact. For if the testimony be believed, and there be no reasonable doubt in your mind as to its truthfulness, that the defendant did make to Napalillo the proposition which he says defendant did, and accompanied it with threats which he says he did, that would be entirely inconsistent with the theory of the defendant upon the trial, that he was coerced into this by fear of Bevivino.</p> <p>In considering this allegation as to the defendant being under duress, I call your attention to the testimony of the defendant as to the nature of the threats. Is there any evidence that he was threatened by any person except Bevivino ? He says that he was threatened by Bevivino that he would be killed or put out of the way either by Bevivino, or his friends, or the members of the society to which he belonged, in case he should lose his courage and not do his part, or words to that effect. [Is there any evidence in the case of knowledge upon tlie part of the defendant that Bevivino had such friends, or that he was a member of such a society, or that such would be the result, etc., except the statement which he says Bevivino made to him?] 18 The point that I desire to call to your attention is this: In considering whether or not the defendant was acting under duress by reason of threats which Bevivino had made, it is important for you to consider what was Bevivino’s ability to carry out those threats, or at least what was the defendant’s belief as to Bevivino’s ability to carry them out. Because, if they were not such as to produce in his mind fear that the result threatened would be carried out, then he could not set them up as a defence for his act.....</p> <p>I call your attention, now, to the testimony with regard to the confession which is alleged to have been made to Captain Linden after the defendant had been arrested. In many particulars the confession as narrated by Captain Linden, and as reduced to writing, is not different from the testimony given by the defendant upon the stand. There are, however, some important particulars in which they do materially differ, and therefore it becomes our duty to lay down the law to you with regard to the reception of confessions of persons accused of crime.</p> <p>Where a man freely and voluntarily — -that is, without fear or hope of benefit — makes, and intelligently makes, a statement, of course it is evidence of a very high nature. But in order to warrant the admission in evidence of the confession of a person accused of a crime, it must appear, in the first instance, that it was free and voluntary, and was not wrung from him by fear, or by hope that he would be bettered or advantaged thereby. That is, the inducement for the confession must not be the promise made to him, or hope held out to him, that it would be better for him to confess, by any person having authority. According to the evidence of Captain Linden, the defendant was in the company of his under officer, Thayer, and while in his company, Thayer made statements to the defendant as to the propriety of his making a confession to Captain Linden, and as to the advantage which would accrue to him if he did make such a confession, which, if they had been the inducement for the confession, would have required us to reject it from evidence. A promise by an officer to a person in charge, that it would be better for Mm in the end to confess and tell what he knows, is such a promise as prevents the reception of the confession in evidence. But in order to warrant the rejection of a confession upon the ground that it was induced by a promise, it must appear that the promise was the inducement to the making of the confession. If, therefore, the promise ' or inducement which had been held out by Thayer, was not the inducement which led the defendant to make the confession, then it would be admissible in evidence. Upon this question there is a conflict of evidence. In the first instance, it was the duty of the court to decide as to its admissibility, and, acting within the province committed to us, we decided that it-was admissible, and it was read in your hearing. But the defendant says that after he had returned from Thayer’s room, Captain Linden then made promises to him as to what would be the advantage to him if he told all that he knew. On the other hand you have the testimony of Captain Linden to the effect that he then cautioned him that he could make no promises to him, and that if he told him anything he must tell him the truth, and with the knowledge that he would use it against Mm. Now, if this had the effect of removing from the defendant’s mind the hope wMch may have been born there by what Thayer had said, then we cannot say that this wás not a free and voluntary confession. It is for you to determine, then, whether the confession made to Captain Linden was a free and voluntary one, under the instructions we have given to you upon this question of law, or whether it was induced by the hope that he would be advantaged by making it, and that this hope was caused by promises held out by the officer in charge. In case you should find that it was not a free and voluntary confession, then you will reject it from consideration. This applies, however, only to what was said to Captain Linden, and to what was done with regard to the confession itself. It would not operate to the rejection of the testimony as to what he and Captain Linden did after they got to Wilkes-Barre that night, with regard to finding the property which had been hidden in the woods above Miner’s Mills. That would be evidence in any view of the case. In case you should decide that this confession was free and voluntary, then you will remember the testimony as to what took place the night that they had the first interview, and also what was reduced to writing the next day. You are, in view of the discrepancy between that and the testimony, in some particulars, given here upon the stand by the defendant, to consider whether or not it is correctly reported. Have the statements made by the defendant at that time been correctly, accurately reported ? Has anything been omitted from that statement which would tend to qualify it or put a different light upon it ? Has anything been interjected into that statement which was not said by the defendant ? In deciding this question, you are to consider all of the circumstances. You are to consider also the testimony as to the care with which it was prepared — the care exercised not only by the officers but by the defendant himself.</p> <p>Now, gentlemen of the jury, our duty as far as the trial of this case is concerned is ended.....</p> <p>On February 11, 1889, the jury returned a verdict that the prisoner was guilty of murder in the first degree.</p> <p>On February 25,1889, a rule for a new trial was discharged, and the prisoner, Michael Rizzolo, is called before the court and asked if he has anything to say why sentence should not be pronounced upon him, and he replied that he had nothing to say.” Judgment was then passed that the prisoner be executed. Thereupon the prisoner took this writ, specifying that the court erred:</p> <p>1, 2. In refusing a change of venue, and in refusing to grant a rule to take testimony to prove the facts alleged in the petition.3</p> <p>3, 4. In disallowing the motions to quash the array of jurors and the indictment.3 4</p> <p>5. In disallowing the challenges for cause made to the following persons called as jurors and sworn on their voir dire.5</p> <p>6, 7. In admitting in evidence (under exception) the testimony of Captain R. J. Linden, detailing the alleged confession made to him by the defendant in Philadelphia, and in admitting in evidence the alleged written confession of the defendant.6 7</p> <p>8-12. In the parts of the charge embraced in [ ] 8(013</p> <p>16. The record does not show that the prisoner was asked whether he had anything to say why sentence of death should not be passed against him.</p>

<p>A married woman’s title to real estate is not divested by a contract of sale, signed by herself and husband, but not acknowledged by her according to the provisions of the statute; nor is she estopped by acts and declarations which would operate as an estoppel were she a feme sole.</p>

<p>(а) On an appeal to the Orphans’ Court from the decree of the register refusing to admit a testamentary paper to probate and granting letters of administration, no issue was asked for by either party.</p> <p>(б) The Orphans’ Court upon the testimony adduced, found that the testamentary paper was the last will of the deceased, and decreed that it should be admitted to probate and letters testamentary issued thereon: from this decree an. appeal was then taken to tills court.</p> <p>1. In such case, as there was nothing before the Supreme Court but a question of fact upon which the Orphans’ Court had passed, and the finding of that court having been based upon sufficient evidence, its decree would be affirmed and the appeal dismissed.</p>

<p>(a) A heat and light company, when a street main was completed, removed barriers erected to protect the public from the danger of the open trench, and while the plaintiff was driving of a dark night upon the street lately so opened, his horse fell into a transverse trench made for a service pipe and left open by the workmen, causing the plaintiff severe injuries.</p> <p>1. In such ease, all the facts involving the questions of negligence on the part of the defendant, and of contributory negligence on the part of the plaintiff, being controverted, the case was properly left to the jury under correct instruction that if the negligence of the plaintiff contributed in any degree to the injury, he could not recover.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE LUZERNE COUNTY</p> <p>No. 37 January Term 1889, Sup. Ct.; court below, No. 46 January Term 1886, C. P. i</p> <p>On November 25, 1885, S. D. Yost brought an action of ejectment against John L. Brown, for a tract of land in Sugar-loaf township. The defendant pleaded, not guilty.</p> <p>At the trial on May 16, 1888, the plaintiff put in evidence the record of a judgment recovered by himself against John L. Brown on October 7,1884, for $174.40 and costs; that upon this judgment a fieri facias was issued, the real estate in controversy levied upon and condemned, and subsequently sold upon a writ of venditioni exponas to S. D. Yost, the plaintiff, for $300, the sheriff’s deed therefor being acknowledged on October 8, 1885. The plaintiff then rested.</p> <p>The defendant put in evidence, without objection, a deed dated April 7, 1882, made by himself and wife to one John Wyllis for a tract of land admitted to bo the land in dispute, in consideration of 81,500. This deed was acknowledged on April 7, 1882, and was duly recorded on May 6, 1885. The defendant then rested.</p> <p>The court, Woodward, J., for the reason that some two years before the judgment was entered against John L. Brown upon which the plaintiff claimed title, the same person, John L. Brown, had sold and conveyed to John Wyllis all his right, title and interest to the premises in dispute; and, furthermore, for the reason that there was no evidence that John L. Brown was in possession of the premises in question at the time of the sheriff’s sale under which the plaintiff claimed title, instructed the jury to return a verdict in favor of the defendant.</p> <p>The jury returned a verdict in favor of the defendant as directed. Thereupon the plaintiff filed a motion for a new trial, andón September 17,1888, a rule therefor was discharged in the following opinion, Woodward, J.:</p> <p>At the trial of this ejectment the plaintiff, having shown his writ and identified the premises, then put in evidence the judgment, the writ of fieri facias showing the levy and condemnation, the venditioni exponas with the sheriff’s return of the sale to S. D. Yost, the plaintiff, in pursuance of the sale, dated October 8,1885. The plaintiff was then called as a witness to show that the premises described in Ms deed were tbe same as those in the writ. And then the plaintiff rested his ease. The defence then offered in evidence a deed from John L. Brown, the defendant, and wife, to John Wyllis, dated April 7, 1882, for the same land described in the ejectment. This deed was acknowledged on the day of its date before a justice of the peace, and was recorded on May 6, 1885. The defence then rested, and, no rebutting evidence having been offered by the plaintiff, the counsel for defendant and plaintiff, respectively, submitted points in writing asking for binding instructions to the jury, which were given in favor of the defendant. The plaintiff alleges that tiie court erred in giving these instructions, and lienee the present motion.</p> <p>The exact question now before ns, therefore, is this: Was or was not the plaintiff bound to show that, at the time of the levy and sale by tbe sheriff, the defendant was in possession of the land; or, was his case sufficiently established by proof of the judgment, execution, and sheriff’s sale, followed by the sheriff’s deed of October 8,1885 ? The plaintiff’s counsel have referred us to the following cases as decisive of this question, and as showing conclusively that we were wrong in our instructions to the jury: Young v. Algeo, 3 W. 223; Snavely v. Wagner, 3 Pa. 275; Wetherill v. Curry, 2 Phila. 98. We proceed, therefore, to examine these cases.</p> <p>In Young v. Algeo, 3 W. 223, Mr. Justice Kektítedy says: “ Although the rule seems to be general that the defendant in the execution and all those coming into possession under him are estopped by the judgment from disputing the plaintiff’s right of possession (quoting Eisenhart v. Slaymaker, 14 S. & R. 153), yet, upon the ground of estoppel, it must be considered subject to some qualifications.” And he illustrates his meaning by the case of a defendant in an execution, who had been a tenant of the premises in question at the time of the sheriff’s sale, and who remained in possession afterwards, without proceedings against him by the purchaser at the sheriff’s sale, until his lease had expired and a new one had been made. There would be no estoppel in such a case, for the reason that, an interest having passed to the purchaser at the sheriff’s sale, the tenant had a right to show what that interest really was, and that it had expired by its own limitation, and that he is now in possession under a right acquired since, by a subsequent contract, which the purchaser at sheriff’s sale cannot be presumed to have bought of paid for. In the same opinion Judge Keknedy, in discussing another branch of the case, employs the following language: “ The operation of law is clearly to put the purchaser in the shoes of the defendant in the execution at the time of the sale. Hence, if the defendant in the execution be in the possession of the property sold, the purchaser is entitled to take his place, and, whether the defendant has a right to it or not, he is estopped from saying afterwards that he had no right at the time of sale, and, therefore, none passed by it.” The case of Snavely v. Wagner, 3 Pa. 275, turned on the point that the defendant in the execution held the possession, not in his own right, but in that of his wife; in other words, that he had only a life estate, which was not the subject of a sale by the sheriff. But in noticing the question which we are now considering, Mr. Justice Rogers stated the rule of the law as follows : “ It is in general true that where a defendant in a judgment is in possession at the time of the levy and sale, he cannot make any defence against the purchaser at a sheriff’s sale.” In Wetherill v. Curry, 2 Phila. 98, the facts were that Curry, the defendant in the original judgment, was in possession of the land at the time of the levy and sale by the sheriff, and that Hannah Raymon'd had been admitted as landlord to defend, upon the allegation that Curry was her tenant. Judge Sharswood states the law as follows: “ When the sheriff sells the land of a defendant in a judgment who is in possession, he cannot make any defence against the purchaser, as the latter acquires a right to the defendant’s possession at least, which will support ejectment against him.” And for this he quotes as authority Snavely v. Wagner, 8 Pa. 275, already referred to in this opinion. And Mr. Brightly, in his digest, after quoting all the Pennsylvania cases up to that time on the subject, states the rule of the law to be this: “ If the debtor were in possession at the time of sale, the purchaser is entitled to recover the possession as against him and those claiming under him: ” See Brightly’s Digest, 1115. The case of Dunlap v. Cook, 18 Pa. 454, is not applicable to the case before us, for the reason that the defence was not the lack of possession at the time of levy, but that the defendant, as whose property the premises were sold, proposed to set up title under a lease taken by him from a third person after the judgment was obtained and execution levied upon the land in dispute. Nor are we able to agree with the learned counsel for the plaiixtiff as to the effect, in the present case, of those adjudications whereixi it is held, as iix Green v. Watrous, 17 S. &. R. 398, that, “as betweexi the purchaser and the defendants in the action, the purchaser can recover on the strength of the sale and sheriff’s deed, without showing other title, nor can the defendant show title in another.” For first, it was not shown, as matter of fact, by the evidence in that case, that the defendaxxt was iix possession at the time of levy and sale, and secondly, in the present case, the “ title in another” was shown by the defendant, without objection oxx the part of the plaintiff, at the time of the trial.</p> <p>We do not consider it necessary to say anything more on this branch of the case. It would seem, under the authorities, to be entirely clear that the failure of the plaintiff to prove the defendant in possession of the premises at the time of the sheriff’s levy and sale, compelled the court to hold that a title prima facie had not been shown. And when the defendant was allowed, without objection, to prove an actual conveyance of the land by the defendant to a third party, more than three years before the sale by the sheriff, the duty of the court to grant a request for a compulsory nonsuit, or to give to the jury binding instructions in favor of the defendant, seemed to us to be plain and imperative; for the doctrine of the law is, that, in the absence of proof to the contrary, the legal title to land draws to it the possession of the land as a presumption, for the possession and the right of possession are presumed to be in him who owns the fee.</p> <p>The motion for a new trial is denied.</p> <p>Judgment having been entered in favor of the defendant, the plaintiff took this writ, assigning the instruction of the court to find for the defendant as error.</p>

<p>1. The mere admission of incompetent evidence by the Orphans’ Court, ' or by an auditor, is not of itself sufficient to justify a reversal; it must appear that the court or the auditor was influenced in his adjudication by such testimony.</p> <p>2. .In the adjudication of the estate of a decedent, self-disserving book entries made by him in his lifetime are competent evidence to establish a claim against the estate, although it is not required that all the entries ' shall be accepted as veritable.</p>

No. 102 January Term 1889, Sup, Ct. On June 13, 1888, the account of Richard F. Walsh and M. McNertney, executors of Charles Barry, deceased, was called for audit before the Orphans’ Court, when the following facts were made to appear.

<p>FROM THE DEGREE OF THE ORPHANS’ COURT OF LUZERNE COUNTY.</p> <p>No. 1.43 January Term 1889, Sup. Gt.</p> <p>At the audit of the account of Crandall Major, executor of John Major, deceased, the auditing judge, Rhone, P. J., found the facts (so far as material to this proceeding), as follows:</p> <p>1. The decedent, John Major, died on September 26, 1885, testate, leaving to survive him no widow, but six children, viz.: George B. Major, Crandall Major, J. Wesley Major, Roswell D. Major, William F. Major, and Clorinda, intermarried with Robert Milligan, all of age.</p> <p>2. The fund for distribution arose from the sale of decedent’s real estate, and as per first and final account of Crandall Major, executor, confirmed December 3, 1887, amounts to $5,400. This fund, however, is not in the hands of the executor, the real estate in question having been purchased by George B. Major, one of the sons of the testator, who has a claim against the estate by reason of a certain bond, executed by the decedent, upon which judgment was entered in the Common Pleas; and hence the said purchaser and creditor paid to the executor of his bid of $5,550 only the sum of $150, to pay costs, etc., Avhich, by reference to the account, we find was inadequate by $102.75, the amount of such costs, in excess of the $150 paid in.</p> <p>3. The last avíII and testament of decedent, dated March 19, 1872, and codicil thereto, was admitted to probate on January 18, A. D. 1886, of which the portion relating to the disposition of his property, reads as follows:</p> <p>[By the will here quoted, the testator devised and bequeathed all his estate, real and personal, to his soil George B. Major, excepting his household goods, which were to be the property of his wife Ann Major during her life, and after her decease, what should remain was to pass to the testator’s daughter Clorinda. In consideration of the bequest and devise to George B. Major, he was to provide for the testator’s wife a comfortable home, support, and medical attendance during her life, and he was to pay in addition to each of his brothers and his sister, a certain sum less advancements made to them.]</p> <p>4. George B. Major, having declined to accept the farm subject to the provisions of the will, the same was therefore sold by the executor at Orphans’ Court sale for the payment of debts, and was the source from which the fund for distribution arose.</p> <p>Among the claims presented was a claim by George B. Major, based upon the following bond and judgment obtained in pursuance of it, to Avit:</p> <p>“Know all men by these presents, that I, John Major, of the township of Lehman, county of Luzerne, and state of Pennsylvania, am held and firmly bound unto George L. Major, of the same place, in the sum of three thousand dollars, lawful money of the United States, to be paid unto the said George B. Major, or to his certain attorney, executors, administrators or assigns, to which payment well and truly to be made and done, 1 do bind myself, my heirs, executors and administrators, firmly by those presents: sealed with my seal, and dated the thirty-first day of October, 1871.</p> <p>“ The condition of this obligation is such that if the above bounden, John Major, do and shall well and truly leave by bequest of will unto the said George B. Major, the farm on which he dwells and owns, with certain stipulations to be put therein, so that the said George B. Major’s interest therein shall exceed the amount of his heirship to the amount of said three thousand dollars, then this obligation to be null and void, otherwise to be and remain in full force and virtue.</p> <p>“ And further, 1, John Major, do confess judgment for. the aforesaid sum of three thousand dollars with interest from the date hereof, to be paid in full in one year after my decease, if said conditions are not complied with.”</p> <p>Judgment was entered upon the foregoing bond in the Common Pleas of Luzerne County, in 1874, for $8,000. This was revived by amicable action, in 1879, for $4,426.50, and again revived by amicable action in 1884, for $5,746.93; the revivals including interest.</p> <p>On the claim of George B. Major last above stated, we allow the amount specified in the bond, to wit: The sum of $3,000, together with his full heirship, in accordance with the provisions of said bond, deducting, however, from his heirship any advancements that may have been made in that behalf by the testator in his lifetime.</p> <p>5. The testator made advancements to the various distributees during his lifetime as follows :</p> <p>$ -*• >!'-</p> <p>The last item of advancement, to wit: Three thousand dollars to Roswell D. Major, was not in cash. For some time prior to or about the date of that advancement, Roswell D. resided on the farm with his father, while George B. Major, another son, lived in and owned a property at Plymouth, this county, valued at $8,000. It became desirable that George B., instead of Roswell D. Major, reside with his father, and an arrangement was entered into by the parties by which George B. Major transferred his property in Plymouth to Roswell D., his brother, in consideration of which Rosweli D. acknowledged an advancement to him Rom his father, on his heirship, of $3,000, and gave his father a receipt for that amount, to be applied in that particular way, which is -the $3,000 item mentioned above. To reimburse George B. Major for his property at Plymouth, his father executed the bond recited under finding of fact No. 4, the two brothers' changing their residences accordingly.</p> <p>On the advancements above noted we charge interest from date of testator’s death to this date, May 14, 1888.</p> <p>& -X- # #</p> <p>6. It appearing that the fund was retained by the purchaser, George B. Major, and that he has also had the use of the farm from which the fund arose, since the sale was made, we therefore charge him interest on so much of the cash fund, as in our distribution schedule may be found payable to the other heirs such interest to date from the return day of said sale, to wit: June 14, 1887.</p> <p>We find as a matter of law: that after deducting the costs of the clerk of the Orphans’ Court on this proceeding, and the various debts presented for allowance, including $3,000 to George B. Major, provided for by bond recited under finding of fact No. 4, there is allowed George B. Major from the balance on account of said bond, what would be his full heirship under the intestate laws of this commonwealth, first deducting therefrom the full amount of advancements heretofore made by the testator, with interest from the testator’s death to this date. On the balance, after such deductions are made, interest is charged against George B. Major from June 14, 1887, to this date, and the whole thereof distributed in pro rata shares on the legacies of such of the other distributees whose respective shares, under the provisions of the will, have not heretofore been paid in full by advancements made by the testator, with interest on such advancements added.</p> <p>To ascertain the heirship of George B. Major, after deducting the costs and all debts, of which .the $3,000 to George B. Major is one, We add to the balance all advancements made by the testator in his lifetime, with interest, thus creating a fund, of which the one sixth part is the distributive share of said George B. Major under the intestate laws. Distribution is made accordingly.</p> <p>We have considered the judgment of Geo. B. Major against his father as collateral security only for the performance of the condition set forth in the bond, which is the basis of the original judgment, and all the revivals thereof. The condition of the bond is, that the said “John Major do and shall well and truly leave by bequest of will unto the said George B. Major the farm on which he dwells and owns, with certain stipulations to be put therein, so that the said George B. Major’s interest therein shall exceed the amount of his heirship to the amount of said three thousand dollars.” The testator, in using the term “ heirship,” seems to have had in his mind that his six children each were entitled to one sixth of his estate, and that the bond to George B. was to be treated as a debt due to him.</p> <p>We have thus given George B: such share of the estate as he would have been entitled to if his father had died intestate, and we have divided the balance pro rata.</p> <p>To the foregoing adjudication, George B. Major filed exceptions alleging that the court erred:</p> <p>1. In distributing to the exceptant only the sum of |8,000 upon the bond given the exceptant by the decedent, and on which judgment was entered by revival in the Court of Common Pleas.</p> <p>2. The learned court should have distributed to said judgment, under the law arising from the facts found by him, all the moneys for distribution, after deducting therefrom the costs of the administration; because, as matter of fact, under the terms of decedent’s will, said George B. Major’s interest in the farm devised to him, in case he accepted the same, did not, and could not, exceed his heirship to the amount of three thousand dollars, thus not fulfilling the conditions of said bond, but leaving it in full force and virtue.</p> <p>On November 24, 1888, the said exceptions were overruled, and a final decree entered that the accountant pay over the fund in his hands to the parties entitled thereto, according to the adjudication. Thereupon, the exceptant took this appeal assigning for error the dismissal of his exceptions, and the refusal of the court to decree that he was a lien creditor of the decedent, and as such and as a purchaser of the decedent’s real estate at Orphans’ Court sale, entitled to all the proceeds of sale, less costs of administration, and to have his receipt ac- ' cepted in lieu of cash, in payment of the purchase money.</p>

<p>FROM THE DECREE OF THE ORPHANS’ COURT OF LUZERNE COUNTY.</p> <p>No. 396 January Term 1889, Sup. Ct.</p> <p>On October 9,1888, exceptions were filed in the court below to the account of Lewis Landmesser, guardian of Daniel Landmesser, a minor. The minor was one of five children entitled to the proceeds of a policy of insurance issued by the Reserve Mutual Life Insurance Co. upon the life of Daniel Landmesser, their father. The exceptions, alleging that the guardian bad failed to charge himself with $220, the one fifth of the sum paid by the insurance company on the policy, were dismissed by the court below, Rhone, P. J., whereupon the exceptant took this appeal assigning the dismissal of his exceptions as error. The facts sufficiently appear in the opinion.</p>

<p>FROM THE DECREE OF THE COURT OF COMMON PLEAS OF LUZERNE COUNTY, IN EQUITY.</p> <p>No. 119 January Term 1889, Sup. Ct.; court below No. 3 June Term 1880, O. P. in Equity.</p> <p>To tbe number and term of tbe court below, referred to, J. J. Wagenhorst filed a bill in equity against William Kistler and Rufus Kistler, executors of the will of Stephen Kistler, deceased, praying for an account of the management of a sawmill and its appurtenances, with certain timber rights in connection therewith, and for a reconveyance of the same to the plaintiff in the bill. Said Stephen Kistler died when the bill was about to be filed, and it was then filed against his executors. The defendants made answer, and subsequently, in disregard of the prayer of the bill for a reconveyance to the plaintiff, as was alleged, conveyed the property, the subject matter of the proceeding, to one Andrew Seabring.</p> <p>After a preliminary hearing, master’s report and exceptions thereto, on July 27, 1885, the court made a decree directing that the defendants account with the plaintiff, as follows:</p> <p>1. For the proceeds of the lumber business as carried on by Stephen Kistler, with the co-operation of the plaintiff, from November 28, 1877, the time of the sheriff’s sale, to November 15, 1878, with the materials purchased at said sheriff’s sale, including those which came from the Mordecai Piersoll tract.</p> <p>2. For the amount realized by Stephen Kistler and the defendants from the lumber manufactured by Emory Gilpin from the Mordecai Piersoll and Sidney Dillon lands from November 15,1879, to June 13, 1879, under the Kistler-Gilpin contract of the former date.</p> <p>3. For the amount realized by said Kistler and the defendants from the manufacture of lumber with the mill in question from the Mordecai Piersoll and Sidney Dillon lands from June 13, 1879, to August, 1880.</p> <p>4. For the fair value of the property transferred by the defendants to the said Andrew Seabring in August, 1880, and on January 31, 1881.</p> <p>5. For the fair value of any and all property transferred to Kistler by the sheriff’s sale aforesaid, and not hereinbefore specified.</p> <p>That in taking said account the defendants be allowed credit:</p> <p>1. For the amount actually expended by the said Stephen Kistler in payment of his bids at said sheriff’s sale, and in paying the expenses of the lumber business aforesaid, from November 28,1877, to November 15, 1878, and for the amount due Callahan from plaintiff on February 15, 1878, on their contract of January 19, 1877, and for the amount paid Callahan as his share of the proceeds of the contract February 15, 1878.</p> <p>2. For the amount paid Emory Gilpin under the Kistler-Gilpin contract of November 15, 1878, and the amount due said Gilpin on the latter date from the plaintiff on their contract of August 10, 1874, and for the amoiint paid by Kistler to Callahan in November, 1878, for the timber on the Mordecai Piersoll tract.</p> <p>3. For the expenses of the manufacture and sale of lumber from the Sidney Dillon and Mordecai Piersoll lands from June 13, 1879, to August, 1880.</p> <p>4. For the amount paid by Stephen Kistler or his estate to Emory Gilpin in the purchase of June 18, 1879.</p> <p>5. For such other expenses paid by said Stephen Kistler or his estate in and about the business and transactions aforesaid as not hereinbefore speciñod, and for just and reasonable allowances for personal services of said Stephen Kistler and the defendants in and about the business aforesaid.</p> <p>That the balance of the account thus taken be applied to the indebtedness of the said plaintiff to the said Stephen Kistler at the time of the sheriff’s sale; first, to such as is not secured by judgment, and next, to the indebtedness thus secured, and if any balance then remains after payment of all of said indebtedness, the same to be paid to the plaintiff..</p> <p>That the cause be referred to Mr. Lyman S. Bennett, as master to take the said account, and to report to the court, and that pending the taking of the same the defendants be enjoined against the collection of their judgments by a levy and sale on execution.</p> <p>No appeal was .taken from the foregoing decree, and the master stated an account between the parties in accordance therewith, and made report thereof to the court, when both parties filed exceptions, those filed by the plaintiff sufficiently appearing in the following opinion, Rice, P. J.:</p> <p>1. The plaintiff’s first exception is that the master erred “ in adopting such a theory and method of stating the account as caused him to disregard and override the admitted facts of the case. The answer admits and avers that the whole amount due from Wagenhorst to Kistler on the 21st of November, 1878, was $14,534.83. It is also admitted that the defendants received on account of Wagenhorst’s property, twenty thousand dollars in August, 1880. Yet in the face of these admitted facts the report is made up bringing Wagenhorst $2,277.37 in debt.”</p> <p>If there is any merit in the foregoing exception, it is not because the master has erred in making up the account, but because the original decree, which he has strictly followed, is erroneous. But we think there is no such absurdity in the result reached, as would prove that the mode in which the master was directed to state the account disregards the admitted facts of the case. In the first place, the exception does not state all of the facts. For example it omits to mention Kistler’s payment of $19,600 on account of the purchase in June, 1879, of the same property subsequently sold, as stated, for $20,000. Moreover, the statement of September 7, 1877, referred to in § 10 of the answer, was of the accounts between Wagenhorst and Kistler for advances made by the latter on his bark contract with the former, which were applied to the payment of Wagenhorst’s indebtedness to the Drinkers. At that time Kistler had paid off the whole of the debt to the Drinkers, and taken assignments of the securities therefor. As against this was offset the indebtedness from him to Wagenhorst on the bark contracts, and the sum of $10,197.10 found due to Kistler in September, 1877, was the difference. All this is clearly and more fully set forth in the master’s original report, and present report, and the subject matter of the settlement is shown by exhibit N, offered in evidence in the preliminary hearing. The residue of the sum of $14,534.83 is averred in the answer to be made up of amounts paid by Kistler for Wagenhorst, on notes indorsed by the former. It will be observed therefore that these transactions were separate and distinct from the lumber transactions on the Gilpin and Callar han lands. The defendants, from the outset,* have denied their liability to account with the plaintiff for those transactions. The alleged admission contained in § 10 of the answer, and inferred to in this exception, must be taken in consideration with that denial. It certainly cannot stop them from demanding a true accounting, if any is to be had, of transactions outside of the matters embraced in the settlement of September, 1877, and otherwise referred to in § 10 of the answer.</p> <p>2. The plaintiff’s second exception is that the master erred “ in charging plaintiff with the $19,600 paid to Emory Gilpin; the said amount not having been authorized by plaintiff and having been paid to Gilpin without ever consulting plaintiff; and paid, moreover, not on plaintiff’s account, but upon an arrangement to put Andrew Seabring in the place of Emory Gilpin.”</p> <p>The answer to this exception is twofold. I n the first place, the decree under which the account was stated expressly directs that the defendants shall be allowed credit for the amount paid by Stephen Kistler, or his estate, to Emory Gilpin, in the purchase of June 18, 1879. This decree was made pursuant to the recommendation of the original report, which, in this particular, was not excepted to by the plaintiff. W e observe also that in the statement of the account as understood by him, credit is-allowed for this payment. In the second place, the defendants are clearly entitled to the credit, irrespective of the conclusiveness of the original decree. The agreement of November 26, 1877, which is the foundation of the plaintiff’s case, has been construed to include, not only the personal property levied upon and sold by the sheriff, but also his rights and interests under his contracts with Gilpin and Callahan. Tn 1878, without any fault or interference of Kistler, Wagenhorstdiad fallen in arrears to Gil-pin and Callahan, and was likely to forfeit his rights under those contracts, and also to lose the personal property which had been purchased by Kistler at the sheriff’s sale and left in Wagenhorst’s possession for the purpose of enabling him to cany out the plan for the payment of his debt to Kistler, contemplated by the agreement of November 26, 1877. The interests of both parties were in peril. Wagenhorst had tried and failed to make satisfactory arrangements with Gilpin; and then Kistler, with Wagenhorst’s permission to make the best arrangement he could, entered into negotiations which resulted in the Kistler-Gilpin contract of November 15, 1878. By this contract Gilpin agreed to sell Kistler the balance of the timber on the Sidney Dillon lands and to cut, saw and deliver the same as well as the remaining timber on the Mordecai Piersoll tract (which latter Kistler then bought of Callahan), at so much per thousand on delivery, and to withdraw his ejectment suit against the plaintiff for the land whereon the mill stood. In consideration whereof Kistler sold Gilpin his interest in the mill. This was followed by the contract of June 13, 1879, whereby Gilpin sold Kistler the same mill, 400 acres of the Sidney Dillon lands (being that part on which the mill stood) and all remaining timber on the whole 1700 acres, including his interest in the lumber railroad, for $19,600. As 'we understand the counsel, what the plaintiff complains of is, that the contract of November 17, 1878, having relieved them from the embarrassments growing out of the Gilpin claims against Wagenhorst, Kistler was not justified, without the plaintiff’s consent, in substituting for it the contract of June 13,- 1879. It will be observed, however, that both contracts contemplated a sale of the timber to Kistler; they differ, in that, under the first, Gilpin was to be paid so much per thousand feet after it had been manufactured into lumber and delivered, while under the second, he was to be paid a gross sum for all the property. Kistler was certainly compelled to make the first contract, in order to protect the interests of both himself and Wagenhorst against the Gilpin claims, and it does not appear that the second contract was not quite as advantageous to them as the first. On the contrary it appears from the testimony as to the value of the property that it was highly advantageous-, at least to the' plaintiff, for, as it turns out, the defendants have been compelled to account for the property at a considerably higher estimate of its value than Kistler paid for it. The defendants have strenuously contended from the ' first, that these contracts with Gilpin were entered into solely to protect the interests of their testator, and that he took the ' title free- of any trust in the plaintiff’s favor, after the latter had shown his inability to carry out the contract of November 26, 1877, and had abandoned and surrendered his rights under it. This contention has not been sustained. On the contrary it has been held that Bustler took title as a trustee upon the principle thus expressed by the master: “ The relations established by the agreement of November 26, 1877, required each to exercise toward the other the greatest degree of fairness in the protection of the property thereby held for their common benefit against a burden equally common, and permitted neither to entirely absorb the interest of his fellow by the purchasé or extinguishment of the Gilpin debt on his own individual account.” Accordingly, the defendants have been required to account for the proceeds of the lumbering business carried on under the Kistler-Gilpin contract of November 15, 1878, for the proceeds of the same business carried on by Kish ler and the defendants after his purchase in June, 1879, tin til the sales to Seabring, and for the fair value of the property sold to Seabring. This beiug so, it would be manifestly unjust and inequitable not to credit them with the amount paid by Kistler for the land, timber and other property, for the profits, proceeds and value of which they are required to account, if not appearing that the sum paid was in excess of its value.</p> <p>3. The third exception is that the master erred “ in ruling that the plaintiff is not entitled under the circumstances of this case to claim the difference between the minimum cost of manufacturing the lumber and the market value of the same.”</p> <p>This exception, as we understand the counsel, has reference to the lumber sold to Seabring, and not to that manufactured into lumber before that time. The same question was raised in the preliminary investigation and duly considered in making the decree. It was then concluded that the rights and equities of the parties might properly be adjusted by requiring the defendants to account for the fair value of the property sold to Seabring. The question again came up when the parties commenced taking testimony on the account, and the court was asked for instructions, and to amend the decree. We then said: “As a basis upon which experts may found an opinion as to the fair value of the so-called timber rights, it might be admissible to show in any competent way the amount and kind of timber on the tracts at the time of the sale to Andrew Seabring, and we do not understand the master to exclude such evidence. The weight to be given to it is to be considered hereafter. But we think he was clearly right in rejecting the offer to show ‘ the actual amount of lumber which has been taken off these tracts, and the amount for which the lumber was sold, and the cost of manufacturing the same,’ as the only evidence of the fair value of the timber rights in question.” The earnest argument of the plaintiff’s counsel has not convinced us that this conclusion was erroneous, and should be reconsidered.</p> <p>We do not mean to retract anything that has heretofore been said regarding the propriety of the sale to Seabring in the face of the pending bill, but it must be remembered that the defendants were executors. It was scarcely feasible for them to carry on the lumbering operations for an indefinite term of years, and it does not appear that the plaintiff was able to discharge the indebtedness for which the property was held, take it off their hands, and conduct the business himself. Nevertheless, we agree with the plaintiff’s counsel, that they are to be treated as wrong-doers, because, however honest their motives, they did not notify the plaintiff of their intention to sell, and give him an opportunity to find a purchaser, and also, because they voluntarily put it out of their power to re-convey the property to the plaintiff, if upon final hearing of the bill it should be found that he was entitled to that specific relief. Therefore, they are properly chargeable with the full value of the property, notwithstanding upon a careful computation of the kind and quantity of the timber, and close investigation of all the facts, this is found ■ to be over $10,000 more than they actually received. Surely a trustee cannot sell the property, which, under certain circumstances, it will be his duty to convey to his cestui que trust, in ■total disregard of a pending bill calling upon him for an account and reconveyance, and then, when it is found that the plaintiff was entitled to the relief prayed for in the bill, claim that, as ' a substitute therefor, the plaintiff must take the price which he, the trustee, saw fit to sell it for.</p> <p>But why should the defendants be charged with more than the full actual value ? In support of his proposition the plaintiff’s counsel refers us to the principle upon which the third point in Armory v. Delamirie was decided, but we do not think it applicable. The point decided was, that, where a person who had wrongfully converted property will not produce it, it shall be presumed, as against him, to be of the best description. “ This,” says the English commentator, “ is an illustration of tliat favorite maxim, omnia praesumuntur contra spoliatorem; which signifies, that if a man, by his own tortious act, withhold the evidence by which the nature of his ease would be manifested, every presumption to his disadvantage will be adopted: ” 1 Sm. L. C.,'7 Am. ed., *472. Upon the same point the American commentator says: “ A man who wilfully places the property of another in a situation where it cannot be recovered, or its true amount or value ascertained, by mixing it with his own, or in any other manner, will consequently be compelled to bear the inconvenience of the uncertainty or confusion which he has produced, even to the extent of surrendering the whole, if his share cannot be distinguished, or responding in damages for the highest value at which the property can reasonably be estimated: ” Ibid., *478. This case is plainly distillgxiishable both in fact and principle, for the reason, that the kind, quantity, and stumpage value of the timber was capable of being ascertained, and has been ascertained, with reasonable certainty, as the report of the master abundantly shows. On the other hand, the result reached by the plaintiff, according to his method, goes far to prove that it is unreliable and unfair as a means of ascertaining the true value of the property. It involves an over-estimate of the amount of lumber and timber, and an underestimate - of the cost of manufacture, and also, a disregard of certain well-known factors which must always enter into an ascertainment of the true value of property of this kind. If it is to be adopted it is not because the defendants, by their wrongful act, have put it out of the power of the court to ascertain the actual convertible value of the property with reasonable certainty, but because they ought to be compelled to pay something more by way of punishment. There are extreme cases, where even this harsh measure of justice would be justifiable, but in its worst aspect, we do not think this is such a case.</p> <p>* # *</p> <p>5. The plaintiff’s fifth exception is that the master erred “ in refusing to take the evidence offered to show that Andrew Seabring had grown rich out of the proceeds of this property of Wagenhorst, the plaintiff.”</p> <p>So many things would have to be investigated and considered in determining the sources of Andrew Seabring’s alleged wealth, and the methods by which it was acquired, that it is perfectly plain that the mere fact of his having.grown rich would be very unreliable evidence of the value of this property, unless we could also go into a minute investigation of all the other facts connected therewith, which would be impracticable.</p> <p>The plaintiff’s remaining exceptions are to conclusions of fact; but we think these findings were warranted by the testimony, and are so fully explained in the report as to render it unnecessary for us to add anything further to what the master has said.</p> <p>A formal decree was then entered, that the exceptions to the master’s report of the account stated be dismissed and the statement of the account confirmed; that the plaintiff pay to the defendants the balance shown by the account, to wit: $2,277.37, with interest from March 19,1888, and that upon the payment of said balance with interest, the plaintiff be discharged from all liability under certain judgments referred to by number and term. Thereupon the plaintiff took this appeal1 assigning as error the dismissal of his exceptions and the confirmation of the master’s report stating the account.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF BERKS COUNTY.</p> <p>No. 196 January Term 1888, Sup. Ct.; court below, No. 87 January Term 1887, C. P.</p> <p>On December 31,1886, William Borkey and Louisa, Ms wife, for use of the wife, brought an action of trespass against Benjamin Fox, to recover damages for personal injuries to the wife. Issue. '</p> <p>At the trial on December 4,1888, it was shown in substance that the defendant was the OAvner of a farm upon wMch in the year 1886, Mr. Borkey was employed as a cropper, receiving one half the proceeds. On October 25,1886, the defendant went into a field to blast out some large rocks with charges of dynamite. He had been engaged at this blasting off and on for some time. Mr. and Mrs. Borkey were in the same field husking corn, having two children Avith them, and were about 80 yards from the place of the blasting. Mr. Borkejr testified:</p> <p>“We had then been husking about two weeks. One Monday morning, the 25th of October, we went over to husk again. We were almost done, within a few days. We commenced husking, and were husking along, when all of a sudden it exploded; there was an explosion; the smoke fleAV over us. My wife said that she would go home, she could not stand this shooting, this blasting, nor the smoke. Then Fox walked away, went by us, over towards the ditches. I then said to my wife that 1 thought he was only going to blast the small rock; that he would not blast any more; that he was going away. Then we commenced to husk again. Pretty soon he came back with a crowbar on his shoulder. We continued to husk. All of a sudden there was an explosion that the earth trembled ; tine dirt flew over us like drizzling or hailing. I was on one side of the shock of corn and she on the other, and she fell forward on to the shock; she was trembling all over. Then she got up and sat on the corn, and I went down to him.”</p> <p>Mrs. Borkey testified:</p> <p>The effect upon me was that it scared me, and I became very nervous, and that I had trouble with my heart, and I did not know anything of myself.”</p> <p>“ Q. When did you know anything of yourself after this blast? A. I did not know anything until my husband came bank and said we would go out of the field.”</p> <p>The plaintiff introduced the testimony of physicians and others as to the injuries to Mrs. Borkey from the blasting. She called also the defendant, as if on cross-examination, who testified that as his other work would permit him he had for some time been blasting at the rocks to clear them away, and that Mr. Borkey objected to it:</p> <p>“ He came there and gave me some reasons for stopping me ; he said he could not husk his com, could not haul it out, and he also said lie did not want me to blast here, and he also said that he wanted to show me that he could stop me. And after we had talked a while I told him what our contract ivas about going on this land ' and blasting, and when I told him that he called me a damned liar; then he went away again and I just kept on blasting; and in a couple of days he came there again; .....I had only two rocks in that place yet and J wanted to get them out, and so before they came down with their com husking I blasted. I put a charge under one rock and blasted it; it was only a light charge, was not a very heavy blast, and when the blast was set off it tore the rock up at one end and there was a crack made in the end of it, and I then went down to my ditches and fetched a crowbar, and took the crowbar and pried the rocks apart where it was cracked; then it fell down. .....Then I went to work and took a little more than a whole cartridge and put it in between here and covered it up with ground about two feet thick, packed it pretty well, stamped the ground on, and when I had set off that charge then Mr. Borkey came down and told me to stop again, and told me about his wife, etc., this being the third time that he had stopped me, or tried to stop me, and then I told him that having only two rocks in there I wanted to shoot only a little as I wanted to finish it, and it being the third time that he wanted to stop me, I became a little excited and told him I wanted to show him that he could not scare me off where I have a right, and then he went off again, and I measured the direct distance from where I had the dynamite blast, to the place where they were husking, and it was 83-¿- yards, and when I set this blast off I was away about fifty or sixty yards.”</p> <p>Other testimony is referred to in the opinion of this court.</p> <p>The court, Hagenman, P. J., having reviewed the testimony, charged the jury as follows :</p> <p>■ Now, then, as to the law of the case. The court has been requested by the plaintiff to answer certain points. A number have also been submitted by the defendant. These points embrace pretty much the whole of the case. The plaintiff’s first point is:</p> <p>' 1. If the jury believe the testimony of the plaintiff’s witnesses, and that of the defendant himself, that the defendant said that he had blasted the rock to show Borkey that he could not scare him; that he could do as he pleased on his own land; that he did it to vindicate his right; it matters not what agreement he may have had with Borkey as to his right to blast on the land farmed by Borkey, the plaintiff is entitled to damages if her injury was occasioned by the blasting, should they find that such blasting was done in a wilful, negligent, or reckless manner.</p> <p>Answer: -This point is affirmed.</p> <p>* * ■ * * * *- *</p> <p>• The defendant’s first point is:</p> <p>1. The defendant, Benjamin Fox, was the owner of the land on which the blasting complained of was done, and the plaintiff has shown no contract or arrangement between him and the defendant which made it unlawful for the defendant to carry on blasting operations upon the premises in a reasonable manner.</p> <p>Answer: This is affirmed.</p> <p>2. If the plaintiff, Mrs-. Borkey, owing to a nervous temperament, or cause known to her, was unable to endure the noise produced by what she has called a light blast, it was her duty to make her condition known to the defendant, and not to have done so was negligence on her part, and disentitles her to a recovery.</p> <p>Answer: Affirmed, if the blasting was not greater than that which was ordinary and usual for defendant’s purposes, but if it was beyond that, and was done wantonly and wickedly, it was not her duty to make her condition known to the defendant.</p> <p>3. When Mrs. Borkey said of the first blast that “ she would go home, she could not stand this shooting, this blasting, nor the smoke,” her husband should have permitted her to go; her remaining there, knowing that she could not stand the blasting, was negligence and disentitles her to recovery.</p> <p>Answer: Affirmed, if the subsequent blasting was not greater than that which was ordinary and usual.</p> <p>4. The rule of law is that a man is responsible only for those consequences of a fault which are natural and probable, and might, therefore, be foreseen by ordinary forecast.</p> <p>Answer: This is affirmed.</p> <p>5. If the jury believe that the defendant had not reason to suppose that the concussion of the blasting would injure Mrs. Borkey, and believe that any injury which she may have sustained from such concussion was an extraordinary result, and not such as usually follows the act of blasting in the way in •which defendant was blasting, their verdict must be for the defendant.</p> <p>Answer: Affirmed, provided the blasting was not greater than that which was ordinary and usual for the purpose, and not done wantonly and recklessly.</p> <p>6. If the jury believe that any negligent exposure of herself by Mrs. Borkey to the weather, on the day following the said blasting operations, occasioned the alleged physical difficulty of which she complains, the verdict must be for the defendant.</p> <p>Answer: This is affirmed.</p> <p>7. If the jury are not able, from the testimony, to find that the blasting operations of the defendant were the proximate and immediate cause of any physical ailment which they may find the plaintiff to be afflicted with, the verdict must be for the defendant.</p> <p>Answer: Affirmed. In determining what is the proximate cause, the rule is that the injury must be the natural and probable consequence of negligence; such a consequence as, under the surrounding circumstances of the case, might, or ought to have been foreseen by the wrongdoer as likely to follow from his act.</p> <p>8. Under all the testimony in the case, the verdict must be for the defendant.</p> <p>Answer : This is answered in the negative.1</p> <p>Gentlemen, these points contain the rule of law which will govern you in your consideration of the evidence. If the blasting was done by Fox in an ordinary and usual manner, if it was not done recklessly, wantonly, and maliciously, then the plaintiff cannot recover; but if you find that it was done wantonly, recklessly, and maliciously, then she would be entitled to recover.</p> <p>* $ $ $ $ # *</p> <p>The jury returned a verdict in favor of the plaintiff for 1900. ' Judgment having been entered, the defendant took this writ, assigning as error:</p> <p>1. The refusal of defendant’s eighth point.1</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY.</p> <p>No. 291 January Term 1889, Sup. Ct.; court below, No. 22 June Term 1888, C. P.</p> <p>On May 4, 1888, Solomon A. Steckel brought assumpsit against J. D. Emery and T. B. Brown, trading as T. B. Brown & Co. Issue.</p> <p>At tlie trial on September 19, 1888, the plaintiff introduced testimony from which it was claimed that tbe defendants, railroad contractors, bad employed Mm to keep their books for nine months from June 4, 1887, at §70 per month; that be was paid Ms wages at that rate until July 25,1887, when without cause or sufficient excuse ho was discharged.</p> <p>The defendants denied that they had employed the plaintiff for the period of nine months ; on the contrary they introduced testimony that they had employed the plaintiff at §70 per month until a certain work upon which they were engaged was completed, and that he had withdrawn from Ms employment voluntarily, on account of Ms dislike to the defendants’ superintendent. They also introduced testimony that the plaintiff’s hooks were in bad condition by reason of Ms incompetency as a bookkeeper.</p> <p>Tbe court, Reeder, J., submitted to tbe jury to'find from tbe evidence what the contract between the parties was, and charged the jury as follows :</p> <p>The measure of damages which will control your verdict, is the amount which he lost by reason of a breach of the contract upon the part of the defendants. The amount that he has lost would be ordinarily, the amount he would have received if there had been no breach of contract by the defendants, less whatever sum he may have been able to earn in the meantime, unless he refused to accept employment which may have been offered to him, or which he might have obtained. There is no evidence in this cause showing that the plaintiff was offered employment and refused it. [There is no evidence in this cause which you can take into consideration in mitigation of damages, except the testimony showing that Mr. Steekel was employed during a part of these nine months, and for which he received a hundred dollars, I believe the testimony is. You will recollect what the testimony is upon that subject. The burden of proof was upon the defendants to show that he might have received other employment had he sought it.] 3 The plaintiff’s case was concluded when he proved the breach of the contract, if you believe that he has successfully proven the breach of the contract. If the defendants had offered evidence showing that employment had been offered to the plaintiff, or that he could have obtained employment and refused it, for the time intervening between the time of his discharge and the time for which he alleges they contracted to employ him, that would have been a matter that I would have had to submit to you for your consideration. In the absence of such evidence, however, if you find the other facts in favor of the plaintiff to which I have already called your attention, in making up your verdict you will ascertain the amount at the stipulated rate for the length of time for which his employment would have continued beyond the date of his discharge, less the amount he may have earned during that time.</p> <p>The court is requested to charge the jury, for the defendants:</p> <p>1. That if the jury find that Steekel left the employment of T. B. Brown & Co., and agreed to accept in lieu thereof employment with J. D. Emery, there can be no recovery.</p> <p>Answer: Affirmed.</p> <p>2. That it was incumbent upon Steekel to exercise due ¿Liligence to obtain other employment, and if the jury find that he did not exercise such diligence, there can be no recovery.</p> <p>Answer: This point, as an abstract principle of law, might be true, but there is nothing in this case that involves the application of the principle, because the defendants, upon whom the burden of proof rests, have not shown that the plaintiff did not attempt to obtain employment, or that he might have obtained employment and refused it.1</p> <p>3. That if the jury find that Steckel was not a competent book-keeper, or that the books of the firm -were kept by him in a negligent and unskilful manner, the defendants were justified in terminating the contract, and there can be no recovery by the plaintiff.</p> <p>Answer: Affirmed.</p> <p>4. That if the jury find that Steckel demanded as a condition of his remaining in the employment of the firm defendant, that they should discharge Somers, the firm were relieved from any obligation to retain him, and there can be no recovery.</p> <p>Answer: Affirmed.</p> <p>The jury returned a verdict in favor of the plaintiff for $410.14. A rule for a new trial having been discharged, the defendant took this writ, assigning as error:</p> <p>1. The answer to defendants’ second point.1</p> <p>2. The part of the charge embraced in [ ] *</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE BRADFORD COUNTY.</p> <p>No. 268 January Term 1888, Sup. Gt.; court below, No. 660 May Term 1887, G. P.</p> <p>On April 7, 1887, Francis X. Hornet, J. G. Hornet and others, brought ejectment against. 11. S. Bacon, to recover a tract of land in Asylum township. Issue.</p> <p>At the trial on.September 23, 1887, the following case was presented:</p> <p>The plaintiffs showed the possession of the land in dispute, 99 acres and 76 perches, by the defendant, and then put in evidence a statement of facts agreed upon by the parties as the facts of the case, and which was as follows:</p> <p>1. That the land described in the writ of ejectment in the above stated case was owned by Charles Hornet in his lifetime; that he died seised of the same, and that said land is described and devised in his last will and testament, which was duly proved and recorded in the register’s office at Towanda on May 15, 1839. Said will to be used in evidence.</p> <p>2. That the persons named in the aforesaid writ of ejectment as plaintiffs, legally represent the male children issued from the first marriage or from the first bed of Charles Hornet, the aforesaid testator, and their heirs.</p> <p>3. That Lydia Hornet was the only child of said Charles Hornet by his second wife, Cynthia Hornet, and was born July 26, 1829 ; that said Lydia was married to E. T. Fox on February 8, 1847; that she, Lydia, had one daughter who died before her mother, unmarried and without issue; and that Lydia Hornet Fox, died on April 19, 1886; that Lydia Hornet Fox with her husband, E. T. Fox, conveyed the land described in the writ to Hiram Gilbert and R. E. Gilbert by deed dated May 5,1852, acknowledged in open court, in accordance with the act of January 16, 1799, 3 Sm. L. 338; that Hiram Gilbert et ux., conveyed his undivided one half part thereof to R. E. Gilbert, by deed dated July 13,-1857 ; that R. E. Gilbert et ux., conveyed the same to R. S. Bacon, the defendant in this suit, by deed dated January 1, 1873; the said conveyances or the record thereof to be used in evidence subject to the plaintiffs’ objection that Lydia Hornet Fox and E. T. Fox her husband could not convey a title to the land described, which is to be determined by the court; also that said, grantees of Lydia Hornet Fox and E. T. Fox entered into possession of the said land at the dates of their respective deeds and have continued in possession claiming ownership ever since.</p> <p>The will of Charles Hornet, dated March 16, 1831, and admitted to probate on May 15, 1839, in so far as essential to this case was as follows :</p> <p>u It is my will also, and I do order and direct that my dear Cynthia [his wife] shall have during her natural life the use, occupancy and profits of such part of the farm whereon I am now living, as is hereafter described [describing it by courses and distances], but after my dear wife Cynthia Hornet’s decease, it is my will and desire that the real estate afore-described should descend to the children issued from .my marriage with said Cynthia, and if she should survive them or any of them it is further my intention and purpose that the same should after her death and after the death of my children by her without any heirs revert to the male children issued from my first marriage or from the first bed and to their heirs. . . . . ”</p> <p>In a second codicil to his will, dated December 22, 1838, the testator provided:</p> <p>“ Know all men by these presents, that 1, Charles Hornet, .....-wishing to provide for the welfare, liberal and decent education of my daughter Lydia Hornet, in case that she survives me, have thought proper and reasonable to make in her favor, in addition to what she has right to claim by my will and testament of the 16th day of March, 1831, further dispositions in consequence of the premature death of Cynthia Hornet, her mother, and as follows: It is therefore by my will and intention that after my death my daughter, Lydia Hornet, should have all the household furniture, farming utensils, goods and chattels lying and being at the time of my death on the premises on which I am now living.</p> <p>“ I do publish and declare this to be my will and testament in addition to the one made the 16th March 1831, hereby ratifying whatever is by this added to the former and annulling whatever might be or is contrary to the disposal of my personal estate as mentioned in the former will confirming in favor of my daughter Lydia such parts of my real estate as I have by said will of March 16, 1831, disposed of in favor of my wife Cynthia Hornet to revert after her death to her children if any.”</p> <p>The court, Morrow, P. J., instructed the jury to return a verdict in favor of the plaintiffs, subject to the question reserved, whether upon the facts in evidence the plaintiffs were entitled to recover.</p> <p>On November 19, 1888, after argument by counsel, the court filed an opinion which after stating the facts, proceeded:</p> <p>Under these facts the plaintiffs claim that Lydia took only a life estate, with a contingent remainder over to such children as might survi ve her; that no child survived her, and the devise over to the sons of testator by his first marriage took effect, and the plaintiffs are entitled to recover. The defence is that Lydia, took an estate in fee simple or an estate tail, and the plaintiffs cannot recover.</p> <p>When the codicil was executed, Cynthia Hornet was dead. The personal property which her husband had bequeathed to her, he bequeathed to Lydia by this codicil, and he said it was “ in addition to what she had a right to claim by my will of March 16, 1831.” Under that will his wife had a life estate in tins land. He made no change in the devise to Lydia, except to say he confirmed in Lydia “ such parts of my estate as I have by said will of March 16,1831, disposed of in favor of my wife Cynthia, to revert after her death to her children, if any;” that is to say, to “ revert,” after Cynthia’s death, to her children, if any. Lydia was the only child, and this expression indicates that the testator’s construction of the devise in the will of 1831 was, that Lydia was to have the land absolutely. By that will the land was to descend to her (she was the only child by that marriag’e), and if the devise had ended there, she would have taken a fee simple, especially in the light of what is said in the codicil; but he said, “ after her death, without any heirs,” his intention was that the land should “ revert to the male children issued from my first marriage.” Whether Lydia left heirs, on her mother’s side, does not appear; but one of the plaintiffs is her half brother, and some of the others are children of -the other half brothers. So it cannot be said she died without heirs, and it may be said she died leaving heirs, and that - the land descended to her in fee simple. It is true this may be called a technical interpretation, but if it is the correct one, it is an end to the plaintiffs’ case. So, too, if she took it as a vested remainder, as claimed by the defendant’s counsel, under McKee’s Appeal, 96 Pa. 277, the plaintiffs have no case.</p> <p>But construing the words, “ without any heirs,” to mean without issue, an indefinite failure of issue, she took an estate tailEichelberger v. Barnitz, 9 W. 447.. The authority of this case is unquestioned. So, too, “ child ” may be construed “ heir of the body,” or “ issue,” to give effect to the testator’s intention : Haldeman v. Haldeman, 40 Pa. 29. In Covert v. Robinson, 46 Pa. 274, the devise was to testator’s daughters, “ but if my daughter Nancy should be called away by death without any lawful heir,” then her share to go to the other daughters ; held, these words meant, if she died without issue, indefinite failure of issue, and she took an estate tail. See also Allen v. Markle, 36 Pa. 117. But aside from this, if as plaintiffs claim, the devise was to Lydia and her children, or issue, and that she took for life with contingent remainder to such children as might survive her, it was an estate tail; “ for she had no issue at the time of the devise, and the intent of the deviser was manifest and certain that her children or issue shall take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they shall not take, for this was not his intent, for the gift was immediate ; whereupon such words shall be taken as words of limitation : ” Taylor v. Taylor, 68-Pa. 488.</p> <p>Lydia, at the date of the codicil, was nine years old; her mother was dead, and evidently she was the primary object of her father’s solicitude and bounty, and her absolute estate is not to be cut down to an estate for life without clear evidence of such intent: Mickley’s Appeal, 92 Pa. 514. Such an intent is not apparent. The words in the will, “ without any heirs,” are words of limitation, indicating an indefinite failure of issue. She took an estate tail, and it having been barred under the act of assembly, the defendant took and has a title in fee simple.</p> <p>And now, November 19, 1887, judgment on the point reserved, for the defendant, non obstante veredicto.</p> <p>Judgment having been entered for the defendant, .the plaintiffs took this writ, assigning as error the entry of judgment for the defendant, on the point reserved, non obstante veredicto.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF BRADFORD COUNTY.</p> <p>No. 189 July Term 1888, Sup. Ct.; court below No. 593 February Term 1885, C. P.</p> <p>On January 27, 1885, The First National Bank of Towanda issued an attachment execution on a judgment for $7,200 against C. M. Manville, and summoned E. T. Fox and others as garnishees.</p> <p>The answers filed by Fox to the interrogatories of the plaintiff, so far as essential to the case, were as follows :</p> <p>Answer to 2d interrogatory: On November 25, 1884, the said C. M. Manville owed me $1,000 for which I held his judgment note. That day he assigned to me as collateral security a judgment he held against N. P. Hicks for $4,650 which was entered in said Court of Common Pleas to No. 551 December Term 1884. Said assignment filed in said No.' is as follows, viz.: “ For value received to me in hand made, I do assign the above described judgment to E. T. Fox, subject, however, to an assignment made by me to Mrs. M. A. Lyman on the 17th November 1884, of $500 interest in the same. Towanda, November 25, 1884:” Signed C. M. Manville. Said assignment was filed November 26, 1884. At the same time 1 entered into a written agreement with the said Manville, as follows :</p> <p>Whereas, C. M. Manville is the owner of a judgment in Bradford county Common Pleas, against N. P. Hicks, No. 551 December Term 1884, and E. T. Fox, and E. T. Fox, trustee, is the owner of several other judgments against said N. P. Hicks, and whereas executions have been issued upon all of said judgments, and the property of said N. P. Hicks is now advertised to be sold by the sheriff of Bradford county, the execution on the above described judgment of C. M. Manville being the first lien on the personal property of said Hicks; now, therefore, for one dollar paid to C. M. Manville by E. T. Fox, the receipt whereof is hereby acknowledged, and for certain other considerations hereinafter named, the said C. M. Manville does hereby agree to divide the money arising from said sheriff’s sale of personal property of N. P. Hicks which may be applicable to the execution in favor of said Manville, with E. T. Fox, in proportions of $4,650 to $1,000 ; that is to say, C. M. Manville represents $4,650, and E. T. Fox $1,000, and the money is to be divided between them pro rata, in that proportion. And in order to carry out said agreement, C. M. Manville and E. T. Fox will attend the sheriff’s sale of said property, and will bid off such portions of the property as do not bring prices satisfactory to them, and dispose of it at private sale, and all the money received by said sheriff, that is applicable to said Manville’s writ, and all the money received from such private sales of said property, shall be divided between said Manville and Fox in the proportion, above mentioned. And as a further consideration to said C. M. Manville by said Fox, the said E. T. Fox agrees that he will not sell the real estate of said Manville on a judgment now standing against O. M. Manville, at any time, unless requested to do so by C. M. Manville. Witness our hands this 25th day of November, 1884.</p> <p>C. M. Manville.</p> <p>E. T. Fox.</p> <p>On October 27, 1884, the said Manville had indorsed a note dated that day for $3,000 at three months, signed by the said N P. Hicks, and which the said Hicks had obtained the money on from the Citizens National Bank of Towanda, and at that time, November 25, 1884, said Manville had assigned to said bank as collateral to said note certain obligations upon which the bank subsequently realized sufficient to reduce the amount due the bank at the present time on said note to $506.52. In the judgment taken against the said Hicks and by the said Manville assigned to me as above, the latter included the $3,000 note which he had indorsed October 27,1884, as aforesaid, and said bank makes claim that, as I had knowledge of this fact, it is entitled to receive out of the money collected on said judgment No. 551 December Term, 1884, said balance of $506.52, and I have paid over with the consent of said attaching creditor said sum to said bank.</p> <p>Answer to 3d interrogatory: Under the said agreement of November 25, 1884, I attended the sale of said Hicks property and bid in all or nearly all of it when it was sold by the sheriff on execution issued on the judgment so assigned to me, and I have since sold the same except as hereinafter stated. I received from said sales less expenses $3,749.61 out of which I have taken to apply on my judgments against N. P. Hicks $663.65, my proportion under said agreement, leaving a balance of $3,085.96, being Manville’s interest which was assigned to me as collateral security for the $1,000 note as aforesaid, less any interest Mrs. Lyman may have by virtue of her prior assignment. Prior to the service of said attachment said Man-ville had given Wm. Little, Esq., an order on me for $115 which I had accepted prior to said' attachment, and the amount of which I have paid said Little ; and the said Manville had received prior to said time $32.20, which left at the time of the issuing of said attachment in my hands goods, etc., to the value of $1,848.76. From this deduct $506.52 paid the Citizens National Bank as aforesaid, leaves in my hands $1,342.24 belonging to the said Manville or to the said Manville and Mrs. M. A. Lyman, as per assignment of $500 made to her as heretofore stated.</p> <p>The assignment to Mrs. Lyman, referred to in the above answers, was as follows :</p> <p>■■ For a valuable consideration I this day assign to Mrs. M. A. Lyon, wife of Doctor Lyman, $500 of the vVithin described judgment November 17, 1884. C. M. Maxvitjje.”</p> <p>Tlie plaintiff in the attachment, the First N. Batik of Towanda, claiming that Fox had a greater balance in his hands than he admitted, did not take judgment upon the answers.</p> <p>On September 5, 1887, upon petition of Mrs. Lyman setting forth her interest in the fund in the hands of Fox, the garnishee, the court ordered her name entered on the record as a defendant in the attachment execution, and on September 15th, Fox alone pleaded, nulla bona, except as set forth in his answers to the interrogatories, and $40 received afterwards upon sale of an organ. Subsequently the death of Fox was suggested, and Charles K. Ladd and William Little, his administrators, were substituted of record.</p> <p>Upon the trial, February 14, 1888, the foregoing answers having been offered in evidence with other testimony, the plaintiff contended that Fox had no right to apply any part of the collateral in his hands toward the payment of his $1,000 note against Manville, as that was not specified in the assignment of the $4,650, or in the agreement, relating thereto ; and further, that Fox should not be allowed to defend as to the amount of Mrs. Lyman’s claim, in the absence of proof of payment to her, or of a defence specially setting up Mrs. Lyman’s claim as a lien upon the fund attached; and that her claim should be adjudicated in an interpleader framed for that purpose.</p> <p>The court, SrTTSEK, P. L, 44th judicial district, refusing to sustain the plaintiff’s contentions, charged the jury:</p> <p>This is an attachment execution on a judgment held by the First National Bank of Towanda against C. M. Manville, in which E. T. Fox was summoned as garnishee. The amount in the hands of E. T. Fox, less expenses, is $3,989.61. Mr. Fox’s proportion of this was $706.13, and Mr. Manville’s proportion was $3,283.48. From this we deduct what is called the Fox note, of $1,090, and tlie amount paid by Mr. Fox to Mr. Little on an order of Mr. Manville, which was $115, and the amount paid to Mr. Manville himself, which was $32.20, and note to the Citizens National Bank, $506.52, and a portion of the judgment which was previously assigned to Mrs. M. A. Lyman, $505, and this leaves a balance of $1,034.76 in the hands of Mr. Fox, due to Mr. Manville, or his estate, and for that amount you will render your verdict in favor of the plaintiff.</p> <p>The jury rendered a verdict accordingly. A rule for a new trial having been overruled, judgment was entered on the verdict, when the plaintiff took this writ, assigning for error, the direction of the verdict for the plaintiff for but $1,034.76.</p>

<p>A promissory note having on its face the memorandum: “ This note is given for advancements, and it is the understanding it will be renewed at maturity,” is not an absolute, unconditional contract to pay the money at maturity, and it is therefore not a negotiable instrument upon which an indorser is liable upon his indorsement.</p>

<p>ERROR TO THE COURT OF QUARTER SESSIONS OF CLINTON COUNTY.</p> <p>No. 329 January Term 1889, Sup. Ct.; court below, No. 18 September Term 1889, Q. S.</p> <p>On September 28, 1887, the grand jury returned as a true bill an indictment charging Washington Bradney and W. P. Sweeley, supervisors of Chapman township, with neglectingto repair a public highway in said township.</p> <p>When the cause was called for trial on September SO, 1887, defendants’ counsel made a motion to quash the indictment for reasons which appear in the opinion of the court below. A rule was granted to take testimony, and the cause was continued from time to time.</p> <p>On January 14, 1889, the court, Maybe, P. J., filed the following opinion:</p> <p>At September Sessions, 1887, the grand jury returned a true bill of indictment against the supervisors of Chapman township for neglecting to repair a road in said township. A. Farwell was the prosecutor upon the indictment. Among the grand jurors impaneled and sworn was W arren Summerson, a citizen and tax-payer of Chapman township, but on that account not disqualified from acting as a grand juror upon this bill of indictment : § 6, act of April 16, 1840, P. L. 411.</p> <p>The defendants have moved to quash the indictment for the following reasons:</p> <p>1. Warren Summerson, one of the grand jurors in attendance at said court, was unlawfully and, in violation of the express order of the court, removed from the grand jury room by George A. Brown, district attorney of said county, and was hindered and prevented from entering the same for a long time; and, while he was absent, said district attorney called witnesses before said grand jury, and they, the said grand jury, heard testimony, deliberated and voted upon said bill of indictment,, in the absence of said Warren Summerson, and during the time that he was not permitted to enter said room.</p> <p>2. The district attorney aforesaid remained in the grand jury room during the time that the grand jury were deliberating and voting on said bill, thus destroying all secrecy of action on the part of the grand jury.</p> <p>8. The district attorney suppressed proper testimony which was in the possession of some of the grand jurors, and deprived the jurors of the benefit of the same, so that they could not act intelligently on the bill.</p> <p>4. The district attorney took an undue and improper interest in the action of the grand jury upon this bill, far exceeding his duties and authority, and dictated to the grand jury in matters which should have been left entirely to their discretion and within their control.</p> <p>When the indictment came to be considered by the grand jury, the district attorney, at the instance of Farwell, the prosecutor, and without any direction from the court, caused Warren Summerson, the grand juror from Chapman township, to withdraw from the grand jury. During his absence the evidence of the witnesses on the part of the prosecution was heard, the bill considered, a vote taken and a bill returned to the court a true bill.” It was admitted by the district attorney in open court, when the bill was returned by the grand jury with their indorsement “ a true bill,” and his attention was called to the fact that he had ordered Summerson to withdraw from the jury, that he had done so upon the representation and statement of Farwell, the prosecutor, that the court had directed Summer-son to be withdrawn, which was incorrect, as the court had made no such order, but had declined to do so.</p> <p>The defendants were entitled to have the bill considered by the whole number of grand jurors impaneled and sworn, and it was an improper and unauthorized interference on the part of the prosecutor to have one of the jurors withdrawn when his bill was being considered. Besides, it was improper for the district attorney to be present when a vote was being taken on the bill. While there can be no objection to the district attorney being present during the examination of the witnesses, for the purpose of directing the order of the testimony and eliciting the material facts, after the evidence has been presented, it is, in our opinion, his duty to withdraw and leave the jury to its unbiased deliberations. His presence for the prosecution during the vote upon the bill would necessarily hamper the jury in the exercise of a free and untrammeled judgment. The practice is thus stated by Justice Field, of the U. S. Supreme Court, in a charge delivered to a California grand jury: “ The district attorney has the right to be present at the taking of testimony before you, for the purpose of giving information or advice touching any matter cognizable by you, and may interrogate his witnesses before you, but he has no right to be present pending your deliberations on ’ the evidence. It is proper to keep in mind the fact that the only valid basis on which the institution of grand juries rests, is, that they are an independent and impartial tribunal between the prosecutor and the accused, and it is the duty of the courts to refuse to tolerate any practice which conflicts with this independence and impartialityWhart. Cr. Plead. & Prac., •§ 366.</p> <p>It was admitted by the district attorney in court, and it also appears in the evidence taken by depositions, that he was present when the vote was taken on the bill. After it was discovered that Summerson was improperly withdrawn from the jury, we recommitted the bill to the grand jury, who returned it without changing their finding. This, we think, will not cure the former irregularity. That we have the power to quash the finding of a grand jury for irregularities and for matters dehors the record, will appear from the following authorities. In Brown v. Commonwealth, 73 Pa. 321, it was held that the array of grand jurors should have been set aside and the indictment quashed, because the jury wheel was not properly sealed. In Commonwealth v. Bartilson, 85 Pa. 482, Justice Paxson, says: “ We do not deny the power of the court to quash an indictment for matters not apparent on its face. This is sometimes done for defects in the process for drawing and summoning the grand jury.” In Jillard v. Commonwealth, 26 Pa. 169, Justice Woodwabd says: “The irregularities of the indictment were not pleadable in bar of the indictment; at most, it was ground only for a motion to quash ; ” recognizing the power of the court to quash. The same doctrine is laid down in 1 Whart. Crim. Law, § 480, and authorities might be multiplied.</p> <p>But it is contended on the part of the commonwealth that the testimony of a grand juror and the district attorney should not be received and considered, for the purpose of invalidating and impeaching the finding of the grand jury. While we might concede (although as stated by Tilghman, C. J., in Ritchie v. Holbrooke, 7 S. & R. 458, it has been a vexata questio,) that the affidavit of jurors should not be received to impeach their finding, yet we are not prepared to go to the extent of deciding that the testimony of a district attorney cannot be received for the purpose of showing that he was present when the grand jury acted upon a bill. He is not a member of the grand jury, and the rule does not apply. But whether his evidence was admissible or not, the district attorney was frank enough to admit to the court that he was present when the vote was taken on the bill. We think the reasons are sufficient to require us to quash the bill of indictment.</p> <p>Indictment is quashed; exception.</p> <p>Thereupon the commonwealth took this writ specifying that the court erred:</p> <p>1. In saying: “ Besides, it was improper for the district attorney to be present when a vote was being taken on the bill. His presence for the prosecution would necessarily hamper the jury in the exercise of a free and untrammeled judgment.”</p> <p>2. In giving weight to and using the alleged admissions of the district attorney in deciding the motion to quash, after his deposition had been taken and read in the argument of the motion. The deposition was the only testimony before the court.</p> <p>3. In saying: “The defendants were entitled to have the bill considered by the whole number of grand jurors impaneled and sworn. After it was discovered that Summerson was improperly withdrawn from the jury, we recommitted the bill to the grand jury, who returned it without changing their finding. This, we think, will not cure the former irregularity.”</p> <p>4. In saying: “ The reasons are sufficient to require us to quash the bill of indictment. Indictment is quashed.”</p>

<p>1. The right of action to recover damages for injuries resulting in the death of the person injured being entirely statutory, the action must be brought in the name of the person to whom the right is given by the statutes of the state where the injuries are inflicted.</p> <p>2. The statute of this state, act of April 26, 1855, P. L. 309, giving a right of action to the widow, etc., of the deceased, has no extra-territorial force enabling her to bring suit in the courts of this state, for injuries resulting in the death of her husband inflicted in a foreign state.</p> <p>3. The New Jersey statute, providing that “every such action shall bo brought by and in the names of the personal representatives of such deceased person,” but “ for the exclusive benefit of the widow and next of kin,” does not authorize a widow to sue in her own name in the courts of this state, upon a cause of action accruing in New Jersey.</p>

<p>Where a claim filed for a mechanics1 lieu shows on its face that it is for work and labor done, etc., in the erection and construction of a building, but the details of what was done under the contract, made a part of the claim, show-that the work and materials were supplied for an alteration and addition to an old building, the two kinds of claims arising under different acts of assembly and being purely statutory in their creation, the claim is contradictory in averment, and will be stricken off on motion.</p>

<p>FROM THE DECREE OF THE COURT OF COMMON PLEAS NO. 3 OE PHILADELPHIA COUNTY, IN EQUITY.</p> <p>No. 187 January Term 1889, Sup. Ct.; court below, No. 1176 June Term 1887, C. P. No. 3.</p> <p>On September 10, 1887, a bill was filed by Catharine Edwards against Mary Seaford, John G. Bennett, James B. Simpson and Sarah, his wife, in right of said wife, Lewis K. Bennett and James II. Bennett, praying for a partition of certain real estate in Philadelphia, which had become vested in the plaintiff and defendants as the heirs at law of Mary Wilson, deceased. In filing this bill, Mr. Jules E. Pereyra was of counsel for the plaintiff. No answer to the bill being-filed by the defendants, a decree was entered pro confesso, and on December 6, 1887, Mr. Thomas B. Beeves was appointed master to make sale of the real estate and to distribute the proceeds.</p> <p>After the real estate was sold, the sale confirmed and purchase money paid, Mi-. Pereyra made claim before the master for the allowance of a counsel fee out of the fund, and adduced the testimony of professional witnesses as to the value of services in the conduct of the equity proceedings and as the counsel of Catharine Edwards for a period of two years or more before the bill was filed, in ineffectual efforts to convert the real estate into money. The master, upon the testimony, taken, made a report of distribution, awarding, inter alia, a counsel fee of $500 to Mr. Pereyra. To this report, exceptions were filed on the part of the defendants in the bill, alleging error in the allowance of counsel fees for services rendered to the plaintiff in the bill, before the partition proceedings began, and that the allowance was excessive. These exceptions were overruled by the master, and being renewed upon the filing of his report, on October 15, 1888, the court, Fin-letter, P. J., sustained the exceptions referred to, as the court was of the opinion the attorney for the complainant had not “ acted in good faith to the estate.” On’ application then made, the master was given leave to withdraw his report for amendment, and subsequently filed an amended report, making no allowance to Mr. Pereyra for counsel fees, but submitting the matter to the determination of the court. To this amended report Mr. Pereyra filed exceptions, which were overruled by the master and subsequently by the court, and a decree of distribution entered in accordance with the master’s amended report. Thereupon, the claimant took this appeal, assigning as error the overruling of his exceptions.</p>

<p>FROM THE DEGREE OE THE ORPHANS’ COURT OE PHILADELPHIA COUNTY.</p> <p>Nos. 162, 168, 243 January Term 1889, Sup. Ct.</p> <p>On October 8, 1888, the account of the Pennsylvania Company for Insurance on Lives, trustee under the will of Thompson Holmes, deceased, showing a balance for distribution, of principal 135,376.20, and of income, 117.06, was called for adjudication before Ferguson, J., when the following facts were shown:</p> <p>Thompson Holmes died in 1855, leaving a son, Edmund A. Holmes, and a daughter, Caroline T. Ely, to survive him. By his will dated April 26, 1855, and duly admitted to probate, he directed that the income of his estate should be paid to his two children, Edmund A. Holmes and Caroline T. Ely, in equal portions, and then provided as follows:</p> <p>“3. I will that in event of my son’s decease before that of his wife Ann, the said half of the income of my estate to be paid to her, by the trustee named above, or his successor, for the benefit of herself and her children during her life or widowhood ; the said Ann shall forfeit all claims to said income and estate upon her second marriage.</p> <p>“4. In the event of my son’s decease, and of his wife Ann, while his widow, or in the event of her second marriage, I will that my whole estate shall be immediately divided in two equal portions by my trustee herein named, or his successor, calling to his aid the advice of my daughter Caroline, and such other friends of the family as they may choose to cons alt; and that one half of said estate thus divided shall be distributed in equal proportions, to the children of my said son Edmund and his wife Ann, living at the time of their death or said Ami’s second marriage, giving hereby to my daughter Caroline the choice of one half of said estate thus divided.</p> <p>“5. I give to my daughter Caroline full and unlimited control over one half of the income of my estate, dispensing with the agency of a trustee, should she desire to do so: and I hereby invest her with full power to devise her half of estate to her surviving children or their lawful issue in proportions according to her opinion of their merits; and if no such child or children or tlioir lawful issue should he living at the time of her decease, then to be distributed and bequeathed, by her will, either to her brother Edmund or to his children, living at the time of her decease, in such proportion to each, as she in her own uncontrolled judgment may think proper.”</p> <p>Edmund A. Holmes, the testator’s son, died May 15, 1878, leaving to survive him his widow, Ann, and two children, George W. Holmes and Hattie A. Jamison. Hattie A. Jamison died April 30, 1887, leaving to survive her two children, Benton K. Jamison, Jr., and William S. Jamison. Ann Holmes, the -widow of Edmund A., died without re-marriage, September 11,1888, leaving to survive her only one child, the son, George W. Holmes.</p> <p>A number of other children of Edmund A. Holmes had died during his lifetime; one of them, Maria, intermarried with Charles H. Craige, left one son, T. Huston Craige; another, Margaret, intermarried with Edward Robins, left three children, two of whom were Mrs. Anna M. Douglass and Mrs. Elizabetli R. Pennell.</p> <p>Mrs. Caroline T. Ely, tbe daughter of the testator was still living.</p> <p>It was contended on behalf of George W.. Holmes, the only living child of Edmund Holmes and bis wife Ami who was living at the death of his mother, that the will gave an estate to the children contingent upon their being alive at the time of the happening of a certain event, to wit, the death of their mother; and. as he was the only child who was then living, he was then entitled to the whole fund. On the part of other claimants it was contended that the estate was vested in all the children of Edmund and Ann Holmes, and that the children of those who were deceased were entitled to receive their parents’ shares.</p> <p>The auditing judge, citing McBride v. Smyth, 54 Pa. 248; Smith on Executory Interests, 281; Dickinson v. Lee, 4 W. 82; Hallowell v. Phipps, 2 Wh. 876; Theobald on Wills, 138, awarded one half of the balance in the hands of the accountant to Commonwealth Title Insurance & Trust Co., trustee for George W. Holmes, under a certain deed of trust executed by him to said company; and the other half was awarded to Mrs. Caroline T. Ely, upon the trusts expressed in the will, upon her giving security to protect the interests of those in remainder, and her own bond was approved as such security. To this adjudication exceptions were filed by B. K. Jamison, administrator of Hattie A. Jamison, deceased; by T. Huston Craige, and by Elizabeth It. Pennell and Anna M. Douglass.</p> <p>The said exceptions having been argued before the court in banc, Penrose, J., delivered the opinion:</p> <p>The testator may have had a reason for confining the limitation of the half of his estate given to his son for life, to the son’s children, to the exclusion of his grandchildren, or he may have had none; the sole question is, has he done so, and this is to be determined, not by conjecture or suggestion of hardship or injustice, but by what he has said.</p> <p>Undoubtedly the word children may, where the will taken in its entirety so indicates, be understood as the equivalent of issue or descendants ; but its ordinary meaning is restricted to a single generation, and the rules of construction forbid any enlargement where, as in the present case, the other parts of the will show that it was used in its literal sense. In the immediately succeeding clause providing for the devolution of the other half of the estate at the death of the daughter, specific mention -is made of “issue of deceased children,” as well as “ children ” of the daughter; and then, as if to emphasize the distinction with regard to the son’s half, and show that there was no accidental omission, in limiting the daughter’s share in the event of her death without issue to certain appointoos by her will, he confines the class in whose favor such power is to be exercised to the son and his “ children living at the time of her death,”</p> <p>The result so far as it excludes grandchildren of the sou, whose parents died in his lifetime, is harsh and unnatural, but, under the authorities, it cannot on that account be avoided.</p> <p>A different question is presented, however, as to the shares of children of the son living at his death, but dying in the lifetime of his widow and before the time appointed for distribution. The gift being to children living at a certain date, grandchildren are excluded ex vi termini, as are also children who have previously died. But, it is well settled, the interests of children may be vested, if they survive the prescribed period, though they died before distribution; as in the ease of a gift to children when the youngest shall attain the age of twenty-one, where the personal representatives of those reaching the age of twenty-one, but dying in the minority of the youngest will take: Hawkins on Wills, 288. Here the provision is : “ In the event of my son’s death and of his wife Ann, while his widow, or in the event of her second marriage, I will that my whole estate shall be immediately divided into two equal portions.....and the one-half shall be distributed in equal portions to the children of my son Edmund, and 1ns wife Ann, living at the time of their death or said Ami’s second marriage.” The expression “livingat the time of their death or said Ann’s second marriage,” is ambiguous. It may mean living at the death of either, or the marriage of Ann, and this isits natural signification ; Willesv. Douglas, 10 Beav.fifi; Wills v. Wills, L. R. 20 Eq. 842 ; Pennsylvania Company’s Appeal, 20 W. N. 41: or living at the death of the survivor, or the marriage of Ann, whichever may take place last. But if the hitter had been the meaning, as the distribution had just been directed to take place at that time, it would have been more natural to say “to the children then living.” The use of a different expression implies a different meaning; and even if it were still doubtful, as it must be conceded to be, tbe well-settled rule in snob case, especially where the question involves the disposition of a residue, is to adopt the construction most in accordance with the statutory distribution. One standing in the relation of heir will not be disinherited by words of doubtful import, and the presumption is in favor of an early-vesting. It follows that the interest of a child of the son living at the time of his death was not lost by reason of death before the mother, and that it must be awarded to the personal representative of the child so dying.</p> <p>■ That the testator when he declared that his daughter, to whom he gave one half of his estate for life with power to appoint to her children and issue, etc., etc., should have “ full and unlimited control of one-half of the income ..... dispensing with the agency of a trustee,” did not mean that she should have possession without being required to give security, is by no means clear ; since otherwise, should she be unable to give it, she could not have dispensed with the agency of a trustee. But if this be not so, the acts of assembly permit the court to determine the form and amount of security to be given by a tenant for life to secure the interest in remainder, and in view of her power to appoint, and the admitted sufficiency of her own estate to respond to any demand on the part of the persons who may be entitled under the testator’s will, we cannot say that it was not proper to take the individual bond of the daughter as sufficient security under the act: See Mellon’s Est., 16 Phila. 823 ; s. c. Gowen’s App., 106 Pa. 288.</p> <p>The exceptions on the part of the administrator of H. A. Jamison are sustained; the other exceptions are dismissed, and the adjudication modified in accordance with this opinion confirmed. Let the necessary decree be prepared by counsel.</p> <p>A decree having been signed in accordance with the foregoing opinion,</p> <p>T. Huston Craige took an appeal, specifying that the court erred izi not awarding to appellazzt ozre eighth of said trust estate.</p> <p>Elizabeth R. Pennell and Mrs. Anna M. Douglass took an appeal, specifying that the court erred in not awarding to appellants each ozre sixteenth of said trust estate.</p> <p>The Commonwealth Title Insurance & Trust Co. took an appeal, specifying that the court erred in not awarding to appellant, as trustee of George W. Holmes, the whole of oire half of said trust estate.</p>

<p>1. In ascertaining the intention of a testator, the words he has chosen must be read according to their plain and ordinary meaning, and the interpretation nmst be in conformity with-the meaning of the words, rather than with some supposed meaning of the testator.</p> <p>2. While it is to be presumed that a testator does not intend to die intestate, yet an heir can be disinherited only by an express devise, or by a necessary implication of such strong probability that an intention to the contrary cannot he supposed.</p> <p>(a) A last will provided: “After the payment of all my just debts and funeral expenses, 1 do order that all my property consisting of bonds and mortgages, ground-rents, stocks and personal effects in the state of Pennsylvania, be sold,” the proceeds to be divided among certain legatees.</p> <p>3. There being no ambiguity in the language employed, there was no occasion to resort to interpretation ; and, under the plain meaning of the words, the testator’s real estate in Pennsylvania did not pass by the foregoing provisions 01 his will: Baker’s App., 115 Pa. 590.</p>

<p>ERROR TO the COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.</p> <p>No. 239 January Term 1889, Sup. Ct.; court below, No. 332 December Term 1883, C. P. No. 3.</p> <p>On January 5, 1884, Margaret Mooney and others, as the widow and children of Thomas Mooney, deceased, brought an action in case against the Pennsylvania Railroad Company, to recover damages for injuries inflicted by the defendant company causing the death of said Thomas Mooney. Issue.</p> <p>At the trial on October 4,1888, the case presented was to the effect that Thomas Mooney, on February 14, 1883, tbe date of tbe accident, was foreman of a gang of laborers, who for some time before tbe accident, bad been engaged in laying an additional trade upon the line of the railroad. At the time of the accident, their work had progressed to a point between Bristol and Tullytown. On the morning of the accident the gang had started to walk along the track from Bristol to the point at which they were to continue their work. They were ■scattered along the track in small groups. Before reaching the-point at which they were working they would cross over Green Lane, a highway of the county. Mooney was walking with Michael Welsh, a co-laborer. When within about fifteen yards-of Green Lane, Mooney gave his dinner-kettle to Welsh and stopped behind some ties that were piled up along the railroad. Welsh continued on, walking up the track. 'The next that-was seen of Mooney was by another laborer, Patrick Archer, who saw Mooney as “ he was just about in the act of stepping across the crossing,” when he was struck by a coming train and killed. Testimony was introduced to show that smoke from another locomotive hugged the ground and obscured the vision; that there was a siding upon which other cars were standing, which also prevented a view of the approaching train; that the morning was dark and foggy, the accident occurring between 6 and 7 o’clock; and that the crossing was wholly unprotected by gate, flagman or bell, no warning or signal whatever being given by the approaching train. There was no conflict in the testimony, upon the facts sought to be established.</p> <p>The defendant company requested the court to charge, inter alia :</p> <p>6. Under all the evidence in this case your verdict must be for the railroad company defendant.7</p> <p>The court, Flnletter, P. J., refused the foregoing point, as requested, and charged the jury as follows:</p> <p>In this case the plaintiff cannot recover unless it should appear from the evidence, first, that the defendants through their employees were negligent, and also unless it should appear from all the testimony in the ease that Mr. Mooney on that occasion was not negligent. It becomes important, therefore, for you to understand exactly what the duty of the defendants in using their railway upon that occasion was.</p> <p>It is their duty to use all reasonable means to protect the general public from injury in consequence of their using their railway, or the manner in which they use it. The manner in which those employed in running an engine of this kind, you will see, depends very much, therefore, upon the circumstances of the case. Less care is required where little or no travel can reasonably be expected, than where from the nature of the locality and its surroundings people may reasonably be expected to be.</p> <p>At a public crossing there should always be some notice given to the traveling public of the approach of the coming-trains. Even this notice you will see depends to a certain extent upon circumstances.. These circumstances would be the rate of speed at which the train was going, the locality in which the accident may have happened, the obstructions which might prevent a clear or a distinct view. In considering the question of the negligence of the defendant, you will therefore consider carefully the locality of this accident, the manner in which the train was running, the condition of the atmosphere as it may have been affected by the smoke, the obstructions, if any, upon the track, the effect of the passing coal train as affecting the noise of the train which killed Mr. Mooney, and especially what those who were running this train did or omitted to do to give notice to those who might be about to cross the track on that public crossing.</p> <p>In your inquiry it might be important to fix precisely the spot at which Mr. Mooney was struck. For this purpose you have the evidence of the witnesses who were there and saw the accident. In addition to this you have the surrounding circumstances. First, you have the marks of the heel of the shoe at or near the crossing. Now, if the evidence shows that these marks were made by Mr. Mooney at the time he was struck it would perhaps be conclusive of his position when he was struck; but if this evidence does not prove this, it proves nothing in this case, and should be disregarded by the jury. It is, however, in evidence that Mr. Mooney’s body was found ninety feet from the crossing, and it must be taken as an undisputed physical fact that when two objects in motion meet, the heavier and-swifter will move the lighter one. If, therefore, Mr. Mooney was struck at the crossing he would have been moved some distance by the heavier and swifter engine and train. That distance would depend upon the weight of the engine and train and the velocity with which it was driven. These are facts which you should carefully consider in fixing or attempting to fix the point at which Mr. Mooney was struck.</p> <p>Tf you are satisfied from the evidence that the employees of the defendant were negligent, then you must determine the question whether Mr. Mooney himself was negligent or not. If he were crossing the railway at the public crossing, then it was his duty before he attempted to cross, to stop and look and listen. If the smoke and standing cars obstructed his vision, if the passing train obscured his hearing, these facts required him to be the more careful in stopping and looking and in listening. As there are no witnesses who saw Mr. Mooney immediately before he was struck, and no evidence of his acts at that time, the law presumes that he stopped and looked and listened.</p> <p>If you are satisfied, upon a careful consideration of the testimony, that the defendants were negligent, which negligence in any manner produced the death of Mr. Mooney, and that Mr. Mooney himself was not negligent on that occasion, then the question of damages arises and you must determine it.</p> <p>•£- * * *</p> <p>The jury returned a verdict in favor of the plaintiff for $8,000. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this writ and assigned as error, inter alia:</p> <p>7. The refusal of the defendant’s sixth point.2</p>

<p>A contract, whereby one who is threatened with a criminal prosecution for fornication and bastardy, agrees to pay to the mother a stipulated sum for the maintenance of the child, is enforceable as a valid contract, even though it disclose on its face that it is executed to stifle such prosecution.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS NO. 8 OF PHILADELPHIA COUNTY.</p> <p>No. 258 January Term 1889, Sup. Ct.; court below, No. .... March Term 1885, C. P. No. 3.</p> <p>On May 2, 1885, a scire facias sur mortgage was issued wherein Elizabeth W. David, Edward M. David, William P. David and James O. David, executors of the estate of William M. David, deceased, were plaintiffs, and James Glasby and Phcebe Glasby, his wife, were defendants. The mortgage was for $1,000 and had been given May 18, 1878, by said James Glasby and Phoebe Glasby to said William M. David, and covered certain premises on Orianna street, Philadelphia. The sheriff having made a return of nihil habet to this scire facias, an alias scire facias was issued, to which the return was also nihil habet. Judgment was accordingly entered June 23,1885, upon these two returns, and the damages were assessed at $1,087.50.</p> <p>A levari facias and an alias levari facias were issued on this judgment, but both writs were stayed. , Subsequently on October 20, 1885, the judgment was marked to the use of Josiah F. French, and on June 18, 1888, it was marked to the use of Harriet A. Ruddiman and Marcus A. Davis, executors of the will of William H. Ruddiman, deceased.</p> <p>On July 5, 1888, a pluries levari facias was issued. This writ was also stayed, and on July 25,1888, a rule was obtained to set aside the pluries levari facias, open the judgment, and let the terre-tenant, Charles France, into a defence. At the argument of this rule, depositions were produced and read which purported to prove that Phoebe Glasby, in whom the •title to the property was admittedly vested when the mortgage in question was given, was not the lawful wife of James Glasby; that she had originally married one Richard Walsh in England, and, while lie was living aud without having been divorced from him, she married Giasby. After making the mortgage in suit, she j>rocured a divorce from Giasby, and married Josiah F. French, with whom she lived until her death in January, 1884. After her death, her brother, Charles France, being her only heir, procured from said Richard Walsh, who was still living, a release by deed of all interest he might have in said Phoebe’s estate, and brought actions of ejectment against said French for said Phoebe’s real estate, he, the said French, having taken possession of the same after Phoebe’s death, under a claim as surviving husband.</p> <p>On December 22, 1888, the court below discharged the rule without filing an opinion. The said France then took this writ, specifying that the court erred:</p> <p>1. In entering judgment on a void mortgage.</p> <p>2. In not vacating said judgment, on the fact being shown that the mortgage on which it was entered was void.</p> <p>8. In not opening the judgment and ordering an issue to try the validity of the mortgage.</p>

<p>1. Under § 1, act of June 22, 1871, P. L. 1363, supplemental to the act of March 23, 1870, P. L. 540, extending to Wayne and Luzerne counties the Bradford county reference act of April 6, 1869, P. L. 725, the Court of Common Pleas may recommit the report of a referee for the purpose of taking additional testimony to enable him to report upon a material fact undetermined.</p> <p>2. Under the act of September 30,1791, 3 Sm. L. 59, and subsequent acts, justices of the peace are authorized to receive proof of the execution oi deeds and other instruments of writing, by the .oath of a subscribing witness, whether the grantor be living or not, and the record of such instrument so duly proved is competent evidence.</p> <p>3. Though the defendant in an action for the cutting down and conversion of timber trees, under § 3, act of March 27, 1824, 8 Sm. L. 283, have the right to enter upon the plaintiff’s lands to cut certain trees under a contract, yet if he cut down and convert other trees which he has no right to cut under his contract, as to such trees he becomes a trespasser and is liable under said act.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF LUZERNE COUNTY.</p> <p>No. 117 July Term 1888, Sup. Gt.; court below No. 113 January Term 1888, G. P.</p> <p>On December 19, 1887, John Jones, Michael Bergiu, William H. Cornell and Harry Cornell, by their attorney, Mr. G. R. Bedford, presented their petition, under the act of June 24, 1885, P. L. 152, alleging that the .title to certain real estate was in them,' and that they were in possession thereof; that Asher L. Davenport and A. Byron Davenport claimed ownership of the lands under a commissioner’s sale of 583 acres of land assessed in the name of Daniel Seabert and “sold for taxes; praying for a rule upon the said Asher L. and A. Byron Davenport to bring tbeir action of ejectment within ninety days after said rule should be made absolute, or show cause, etc. A rule to show cause was granted, and on January 6, 1888, the defendants filed an answer denying the averments of the petition-and asserting that both title and possession of the premises claimed by the petitioners were in the respondents.</p> <p>Depositions were taken and filed by both parties. Among other things it appeared that in 1886, William J. Harvey and H. H. Harvey, claiming to own the land in dispute, had filed a bill in equity for an injunction to restrain Asher L. and A. Byron Davenport, the present respondents, from cutting timber and exercising other rights of ownership over said land, and that that proceeding had terminated in a decree dismissing the bill.</p> <p>After argument, the court, Woodward, J., on May 14, 1888, filed the following opinion:</p> <p>This petition is foúnded on the act of June 24, 1885, P. L. 152, and the only question of importance raised by the petition and the answer thereto seems to be tins: Are the petitioners in possession of the premises “ by occupancy, lease, coverture, or otherwise ?.” If this question be answered in the affirmative by the evidence, then the plaintiffs are entitled to have granted a rule on the defendants to bring their action of ejectment within ninety days from the time tire rule shall be made absolute. If the evidence does not establish such a possession in the plaintiffs as the act defines, then they are not éntitled to have the order which they ask for.</p> <p>Without going into the merits of the controversy as to the title to that portion of the Pirineas Bradley tract now in dispute, or expressing any opinion upon the subject, which might amount to a pre-judgment, we content ourselves with the statement that the depositions show:</p> <p>1. That at the time of filing the present petition the plaintiffs were in possession of the portion of the Pirineas Bradley tract in dispute, and had erected thereon a saw mill, a dwelling house and a barn.</p> <p>2. That the tract of land, of which the premises in dispute form a part, was sold fo the defendants by the -commissioners of Luzerne county at a commissioners’ sale on the 5th November, 1885, and that this sale was followed by a deed to them, acknowledged 24th December, 1885.</p> <p>These facts being clearly established by the depositions, it is not necessary for us to consider any of the questions which relate to the validity of the title, either of the plaintiffs or the defendants, or the effect of the proceedings in equity heretofore had relative to the continuance of the injunction.</p> <p>The rule is made absolute.</p> <p>An exception to the foregoing order having been scaled, the respondents took this writ, specifying that the court erred :</p> <p>1. In making absolute the rule granted December 19, 1887.</p> <p>2. In not deciding that this proceeding was contrary to the 7th amendment of the constitution of the United States, providing for trial by jury.</p> <p>8. In not deciding that this proceeding was contrary to article I, § 6, of the constitution of Pennsylvania, which provides that “ Trial by jury shall be as heretofore and the right thereof remain inviolate.”</p> <p>4. In not deciding that the fact of possession was passed upon by a competent master and his findings affirmed by the court in the equity proceedings, and that this proceeding was res adjudicata.</p> <p>5. In finding as a fact, “ that at the time 'of filing the present petition the.plaintiffs were in possession of that portion of the Pliineas Bradley tract in dispute, and had erected thereon a saw mill, a dwelling house and a barn.”*</p> <p>6. In taking jurisdiction of this proceeding, it being a proceeding to determine the possession of land in an equity case without the intervention of a jury.</p>

<p>1. A writ of attachment under the act of March 17, 1869, P. L. 8, must be made returnable on the first return day after the issuing thereof; if made returnable to the next term, and a return day authorized by a special act of assembly intervenes, the writ will be quashed.</p> <p>2. Defective service, or even the non-service of a regular writ, may be cured by a general appearance; but a writ made returnable at a time not authorized by law, is essentially illegal, and if the fact be promptly brought to the attention of the court, it will be so treated.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF COLUMBIA COUNTY.</p> <p>No. 279i January Term 1889, Sup. Ct.; court below, No. 48 February Term 1887, C. P.</p> <p>On December 24, 1886, H. H. Hulme, executor of the will of Samuel Appleman, deceased, brought assumpsit against Charles W. Miller. Issue.</p> <p>At the trial on October 2, 1888, before Hinckley, P. J., the plaintiff showed that the defendant, as the attorney of Samuel Appleman, in his lifetime the guardian of Otis Pealer, a minor, had received on April 6,1885, in the distribution of the estates of Daniel, Ira, and Elias Pealer, deceased, sums of money aggregating $182.29, due to Otis Pealer from said estates. The defendant, as a defence to the payment of the money so received by him, set up, first, that he was entitled to compensation out of it for professional services rendered to Mr. Appleman, in the said several estates ; and second, that as to the balance that might remain he had received it as the attorney of Alva Pealer, a creditor of the estate of Catharine Pealer, in the manner following:</p> <p>Catharine Pealer, the mother of Daniel, Ira, and Elias Peal-er, had died, and in 1879, Hiram and Eli Pealer, her administrators, settled an account showing a balance in their hands of $2,551.81. An auditor was appointed to make distribution of this fund, before whom Alva Pealer appeared as a creditor, represented by C. W. Miller, the defendant, as his attorney. After finding the amount due to Alva Pealer, the only creditor, and deducting the expenses of the audit, there was distributable to Savilla, Hiram, Enos, Eli, Alva and Otis Pealer, the heirs then living, to each the sum of $309.13. But receipts were produced showing that the administrators had paid to Enos and Hiram Pealer, and to Samuel Appleman, guardian of Otis Pealer, each $425.30, or $116.17 in excess of the sum payable to each. In the proceedings before the auditor, Enos, Hiram and Eli were represented as heirs, and Hiram and Eli as accountants, by Mr. Samuel Knorr ; and Alva Pealer, as creditor, and Alva, Otis and Savilla as heirs, by Mr. C. W. Miller, the defendant. The auditor’s report showed the following:</p> <p>“ It was agreed by the counsel representing all the parties concerned in the case as follows, Mr. Miller making the proposition :</p> <p>“ If the auditor finds difference between dower $1,275.03, and payments on mortgage, $752.92, due claimant, then he for claimant will take assignment of over-payments to those already paid, and not require it from the administrator.”</p> <p>Upon the foregoing facts, the defendant, alleging that, acting upon this agreement, his client Alva Pealer was awarded by the auditor such an amount only as with the three over-payments of $116.17 each, made the amount of his claim in full, urged that the agreement before the auditor operated as an assignment to Alva Pealer of $116.17, the over-payment made by the accountants to Samuel Appleman, as guardian of Otis Pealer; and, to show these facts he offered in evidence the auditor’s report in the estate of Catharine Pealer, deceased, filed to No, 21 December Term 1879, and duly confirmed. Objection being made, the court refused the offer, on the ground that the auditor’s report did not show an assignment to have been made in pursuance of the agreement.</p> <p>Testimony having been adduced showing the services rendered to the plaintiff’s testator by the defendant, the court submitted the casé to the jury who returned a verdict in favor of the plaintiff for the sum of $128.84. A rule for a new trial having been discharged the defendant took this writ, assigning as error the refusal of his offer of the auditor’s report in evidence.</p>

No. 439 January Term 1888, Sup. Ct.; court below, No. 18 June Term 1886, C. P. On March 20, 1886, J. L. Keagy and F. W. Keagy, lately trading as J. L. Keagy & Co., brought assumpsit against John T. Shirley upon a promissory note of which the following was a copy: “$10,500. Martinsburg, Pa., March 17, 1883. “ One year after date T promise to pay Jacob L. Keagy & Co., Ten thousand five hundred dollars without defalcation for value received, March 10, 1883.

<p>(a) In an action by a widow to recover damages for the death of her husband, it appeared that decedent, who had been a brakeman in defendant’s yards for several years, was directed to take a train of platform oars loaded with lumber and pushed by an engine in the rear, up to some other cars on a siding 800 yards distant, the siding being straight and up grade.</p> <p>(b) Decedent put his left foot into the iron stirrup at the right hand side of the.front end of the front car, his right foot on the bumper, and one of his arms over the side of the box of the car, to hold himsolf on, and rode in that position until the front car became derailed, and the front end of it, veering to the right, caught him between a board pile and the car and so injured him that he died.</p> <p>(o) This board pile was one of a series quite close together, beginning about 20 feet from where decedent took charge of the train, and at a distance from the side of the car variously estimated at from 20 to 40 inches. The derailment was alleged to have been due to rotten ties, but this was disputed. Decedent could have ridden on the bumper of the car, which did not strike the board pile. There was evidence that decedent could not use the brake or signal the engineer from where he was riding.</p> <p>1. Upon the foregoing facts, the court below properly refused to charge that decedent was guilty of contributory negligence, in taking the position on the car above described, and properly submitted the question of defendant’s negligence and decedent’s-contributory negligence under all the evidence to the jury.</p>

<p>ERROR 'TO THE COURT OE COMMON PLEAS OF HUN TIN (¡DON COUNTY.</p> <p>No. 321 January Term 1889, Sup. Ot.; court below, No. 19 February Term 1888, C. P.</p> <p>On January 16, 1888, tbe plaintiff Citarles Fisher, brought trespass against the Pennsylvania Railroad Company, to recover damages for the death of a mule, struck by the defendant’s locomotive. Issue.</p> <p>On February 3, 1888, the. case was referred under the com.pulsory arbitration law. The arbitrators, on March 5, 1888, filed an award in favor of the plaintiff for $198.66. On March 13, 1888, the defendant appealed from the award.</p> <p>On May 14,1888, the plaintiff obtained a rule to show cause why the appeal should not be stricken off. Depositions were taken both in support of and against this rule, and it appeared therefrom, that the prothonotary, when the appeal was taken, had duly entered on the' record that all the costs had been paid, amounting to $35.59, but that the defendant had in fact receipted on the back of plaintiff’s bill of costs for $3.88, witness fees due one Phillips, the superintendent of the defendant’s road, paying the prothonotary but $31.71 in cash; and that on April 2, 1888, the prothonotary had changed his record by erasing the figures $35.59 and inserting in place thereof $31.71. The same day an order signed by said Phillips was filed, authorizing the payment of the above costs due him to the defendant’s attorney.</p> <p>On May 14, 1888, the rule to strike off the appeal was discharged, the court, Furst, P. J., saying:</p> <p>It is sufficient to say that the record showed the actual payment of all the costs; that a subsequent alteration of the record without notice to appellant cannot affect his rights. The appeal is good under the authority of Rice v. Constein, 89 Pa. 479. The only difficulty in the case was as to one witness, W. M. Phillips; the record shows only that he received his costs. We need not inquire how, when the record shows the payment to an authorized agent to receive it. This rule is therefore discharged.1</p> <p>At the trial of the action on September 19, 1888, the following case appeared:</p> <p>On November 27, 1887, Michael Fisher, the plaintiff’s son, started from a barn with two mules belonging to his father, for the purpose of watering them at a spring, on the opposite side of the railroad about six hundred yards away. He rode one mule which he directed by means of the halter strap passed through its mouth, and led the other by a chain fastened to its halter. He testified as to the accident as follows :</p> <p>Q. How did you leave the barn? A. I rode the one mule and led the other one in the hand with the halter; T went on down about near 300 yards, and the one mule which T had in my hand got to playing; I hadn’t worked them very hard, a few days before, and he got to playing, rearing up that way around, and he started oif on a run, and I was not thinking of him starting off, and he jerked away with the chain and jerked me off; I had hold of the T and he jerked me off and they started both on after I was off. Q. Started on where ? A. Down to the watering place. Q. What is the watering-place — a spring? A. Yes, sir. Q. Did you ever water the mules there before ? A. I think I watered them once there ; I aint sure, but I think I watered them once there. Q. What occurred then after you were thrown oif? A. I started on down following them up, and I didn’t just run; l took my time and went on down, and about the time they were ready to come over, there was an engine came, and one of them made it across, one of them came across, and the other one didn’t make it; the engine struck him before he got across. Q. Where was the mule when the engine struck it ? A. Right at the edge of the crossing. Q. On the road ? A. No, sir; right on the railroad. Q. But it was on the line of the public road? A. Yes, sir.</p> <p>The occurrence was on Sunday, and it was admitted no trains were scheduled to run that day. There was evidence that no hell was rung or whistle blown as the engine approached the crossing.</p> <p>At the conclusion of plaintiff’s evidence, the defendant moved for a judgment of nonsuit, which was allowed and judgment of nonsuit entered, with leave, etc.3-</p> <p>A motion to vacate the judgment of nonsuit was subsequently refused, the court, Furst, P. J., saying: .</p> <p>The plaintiff’s testimony clearly shows negligence sufficient to defeat his right of recovery. Michael Fisher’s evidence supports this view of the case. He certainly was negligent to undertake to ride one mule by the use of a halter and lead the other, which was skittish, also by a halter. After they tore loose he says he did not pursue them rapidly; that he went slow, thinking they would come back, etc. We only state the substance of the testimony, as we recollect it. Under the facts of the case, as shown by plaintiff’s witness, the mule was a trespasser upon the track of defendant’s road, and the case seems to us to be ruled pointedly by the case of North Penn. R. Co. v. Rehman, 49 Pa. 101.</p> <p>The motion to take off the nonsuit is therefore denied and refused.4</p> <p>The plaintiff thereupon took this writ assigning as error:</p> <p>1. The refusal to strike off the appeal.1</p> <p>3. The entry of the compulsory nonsuit.3</p> <p>4. The refusal to vacate the judgment of nonsuit.4</p>

<p>1. Tinder the provisions of the act of May 14, 1874, P. L. 164, relating to the assessment of damages arising from the opening of roads, etc., the assessment of damages by the jury of view is conclusive, unless an appeal, review or modification thereof is provided for by the laws existing in the particular county at the time.</p> <p>2. The general road law, act of June 13, 1836, P. L. 555, containing no provision for a separate review upon the assessment of damages, it is error for the Quarter Sessions, in the absence of a local or special act conferring the power, to appoint a jury of view or review for the ascertainment of damages alone: Aewville Bor. Road, 8 W. 172; Durnall’s Road, 32 Pa. 383; Chartiers Tp. Road, 34 Pa. 413; Spring Garden Road, 43 Pa. 144, explained.</p> <p>3. The laws mate no provision for the payment of the viewers, when a separate view or review is ordered upon the question of damages; the act of May 19, 1887, P. L. 139, was not intended for such purpose: it is therefore error for the court to impose the costs of such a view upon the county.</p>

<p>ERROR. TO THE COURT OF COMMON PLEAS OF BLAIR COUNTY.</p> <p>No. 376 January Term 1889, Sup. Ct.; court below, No. 199 January Term 1888, C. P.</p> <p>On January 6, 1888, Dr. George W. Smith brought assumpsit against the Peoples Mutual Accident Association of Pittsburgh, to recover upon a policy or certificate of membership, for the loss of the sight of an eye.</p> <p>At the trial on February 2, 1889, the case showed that on September 4, 1887, while the plaintiff was driving his carriage he was struck in the right eye by the lash of his whip. The injury was very painful, and for about a week thereafter the plaintiff treated it himself, using cocaine among other applications, and then called in Dr. Ross, a specialist in such cases, and other physicians. On September 21st, Dr. Keyser, an eye specialist of Philadelphia was called, examined the eye, and approved of the treatment to that date. Being then advised that the sight of his eye would probably be lost, plaintiff sent for the agent of the defendant company and dictated to him a notice in writing of the injury, and requested blanks to be forwarded for proofs. On October 19th, the company having sent to him the blanks, the plaintiff transmitted the proofs of loss. These proofs were not printed in the paper books. On December 20th, the defendant company, in reply to an inquiry from the plaintiff, informed him that the company had not taken definite action on the claim, on the ground that timely notice of the injury had not been given.</p> <p>The policy put in evidence by the plaintiff contained covenants for liability to pay a sum not exceeding §5,000 on proof of death resulting from bodily injuries; weekly relief of §25 per week when bodily injuries were received not resulting in death, and not exceeding §1,250 for “ partial permanent disablement, viz., the loss of one hand, arm, foot, leg or eye, by means aforesaid,” on certain conditions and</p> <p>“ Provided further, In the event of any accidental injury, for which a claim may be made under this certificate, immediate written notice shall be given the association in Pittsburgh, giving full particulars of the accident and injuries ; and sufficient and satisfactory proof of loss, either for death or relief, shall he furnished the association within six months from the happening of the accident, otherwise all rights to recover under this certificate for said accident shall be null and void and forfeited to the association.”</p> <p>■% *</p> <p>“ 2. No claim sliall be payable under this certificate, unless any medical adviser of the association shall be allowed to examine the person or body of the member in respect to any alleged injury or death, when and so often as may be required.”</p> <p>hi the course of his case in chief, the plaintiff made the following offer-:</p> <p>Offers proof of loss produced from the office of the Peoples Mutual Acciderrt Association, dated October 19, 1887.</p> <p>Mr. Blair: 'The fact that the proof of loss was sent is not controverted; hut we object that the proof itself is not evidence.</p> <p>By the court: It may not be sufficient proof, but still it is evidence. Objection overruled, proof of loss admitted; exception.3</p> <p>At the close of the testimony the court, Deax, P. J., after-reviewing the testimony, charged the jury, as follows :</p> <p>The first question is, was Dr. Smith injured accidentally as he states, on September 4, 1887 ? Was he subjected to involuntary, external, accidental violence ? Second, if so, did that violence occasion the disability of which he complains and for which he seeks to recover-, the loss of an eye ?</p> <p>It is alleged on the part of the defendant that the loss of the sight of the plaintiff’s eye was the result of imprudence on his part; that he attempted to treat it himself, which, it is alleged by the defendant, was not wise in a physician ; that he destroyed the eye by the use of a dangerous drug, cocaine ; that Dr. Ross spoke ,of cocaine, in a paper- which he read before the Medical Society at Altoona, as a dangerous drag and one likely to cause injurious effects, and expressed the fear that Dr. Smith’s eye had been injured in that way. You have heard his testimony and his explanation of the paper which it is alleged he read. It is urged further by the defendant that Dr. Keyser’s testimony, when viewed impartially, bears out the same view as to the dangerous character of this drug and its probable misuse by Dr. Smith. The plaintiff alleges that the whole testimony shows that the eye received the best treatment known to the medical profession, and it is urged by the plaintiff that the treatment which Dr. Smith administered was approved by the other physicians as satisfactory and proper treatment; that he used only a small percentage of this drug in water; that Dr. Keyser, eminent as a specialist in diseases of the eye, approved and concurred in this treatment, and that the physicians treated the case according to their best skill and judgment after they were called in. If the weight of the testimony satisfies you that Dr. Smith by his treatment, either by imprudent neglect of the proper remedies or by their excessive use, lost the sight of his eye, or that he lost it by the neglect or improper treatment of other physicians subsequently, the plaintiff cannot recover, and your verdict must be for the defendant, because the policy expressly stipulates that the external injury shall “wholly and alone, independently of all other causes,” occasion the disability.</p> <p>[If, however, the weight of the evidence should satisfy you that the plaintiff was injured by an accident which “ wholly and alone, independently of all other causes,” occasioned the loss of his eye, then did he give immediate written notice to the association of the accident and injury? The notice was not mailed until October 1st following the injury, twenty-seven days after the accident; and the defendant asks us to say that the plaintiff failed, in this particular, to comply with the- stipulations of his policy, and therefore he cannot recover. Unquestionably if the plaintiff did not give immediate written notice Of the accident and injury he cannot recover; this is a condition precedent to any recovery. But we cannot undertake to say to you, as a matter of law, that„the written notice mailed on October 1st was not an immediate notice under the circumstances, on a reasonable construction of this provision.] 1</p> <p>The plaintiff’s counsel allege that the injury, although proving very serious, was not known to Dr. Smith to be so Avhen he received it; that at the time it appeared to him trifling and not worth serious notice, so much so that for some days he treated it himself, expecting that he would soon recover; that he did not expect it to be of such a nature as to warrant a claim even for a weekly allowance under the policy, much less of a claim for permanent disability. Then the eye became worse and he put himself under the care of a skilful physician, yet for days he suffered intense pain. During this time he was sleepless and suffering, and in no condition to give notice to the association; but, as soon as he recovered sufficiently to attend to business and had a proper conception of the injury, though yet unable to write himself, he called in the agent of the association, Mr. Gifford, and dictated to him the written notice in evidence here, which he mailed to the association. The defendant alleges that Dr. Smith was able bo sit up in the house for a wqek after the accident, and that he was then able to give notice himself, or to call in some one else to write the notice for him, as he afterwards did ; that if the injury was serious enough to cause him to send to Altoona for a physician, a specialist, and serious enough to cause him afterward to send to Philadelphia for another physician, also a specialist, there was nothing to hinder him from sending the written notice himself or directing some one else to do so; yet he deferred this until the almost complete recovery of his physical vigor afterwards, when it was too late for the association to investigate the original cause of the injury or observe the method of treatment, as was their right and as they would have had an opportunity to do, if they had received the notice as required by the policy.</p> <p>In the policy it is provided:.....This is the clause to which the proof on the one side or the other is applicable; and this question is entirely for your consideration on the evidence. Does the weight of the evidence, the burden being on the plaintiff, show that under all the circumstances the plaintiff’s written notice was as immediate as he could, under the circumstances, give ? Undoubtedly if he had been blinded at once by a blow from a whip-lash, he would have known at the time that he had a claim under the policy and it would have been his duty, very shortly thereafter, to have given written notice. Twenty-seven days, in such a case, would not have been immediate in any reasonable view of it; but whether, under the alleged facts here, it was immediate, such as with due diligence he could have given, is for you. If the plaintiff has failed to satisfy you by the weight of the evidence that he gave, under the circumstances, immediate notice in writing of his accident and injury, he cannot recover. On the other hand, if the weight of the evidence satisfies you that he was injured through external, violent and accidental means which, “ wholly and alone, independently of all other causes,” occasioned the loss of his eye, and that he gave immediate written notice to the association, then you will find for the plaintiff a sum not exceeding $1,250, on which you will allow interest from sixty days after the' proofs of loss were furnished.</p> <p>The defendant has submitted a point, as follows :</p> <p>That the notice given by the plaintiff on October 1, 1887, and received by the company, is insufficient; and the plaintiff cannot recover.</p> <p>Answer: This point is denied; in' our view of the case it is not the law.8</p> <p>The jury returned a verdict in favor of the plaintiff for $1,357.08. Judgment having been entered, the defendant took this writ, assigning as error:</p> <p>1. .The portion of the charge embraced in [ ] 1</p> <p>2. The answer to the defendant’s point.2</p> <p>3. The admission of the plaintiff’s offer.3</p>

<p>(a) In 1855, Clark and Zell, partners in the lumber business, purchased an interest in certain real estate the title to which was in a trustee, who in 1859 sold the same, filed his account, and, after much delay and litigation, paid Clark & Zell’s share of the proceeds to Clark, the liquidating partner of the firm, then dissolved.</p> <p>(b) About 1878, after Clark’s death, Zell united with other parties in various legal proceedings to recover the land, alleging that the sale referred to was fraudulent, which proceedings in 1882 were finally settled, Zell in his own name and as surviving partner of Clark & Zell uniting with ihe others in quit-claiming their interests in the land for $50,000 paid to them.</p> <p>(c) In 1884, Clark’s administrator filed a bill in equity praying that Zell be decreed to account for said $50,000, in which proceeding the master found that the interest of Clark & Zell in the lands was partnership property, that the interests of Clark’s heirs therein passed by the quitclaim deed, and they were therefore entitled to share in the proceeds.</p> <p>(id) The master further found that though the conduct of Clark’s heirs had impeded Zell in his receipt of the money by the settlement of the litigation, yet Zell had lost nothing thereby and the heirs were therefore not estopped; and further that Zell was not entitled to compensation for his services as no agreement to pay therefor was proved.</p> <p>I. The findings and conclusions of the master, in this case, were correct, save that, as the claim to the land set up by Zell was unfounded and worthless and the recovery by the settlement was due solely to his persistent efforts, the plaintiffs having come into equity should do equity, and make him an equitable compensation.</p> <p>2. While a partner, in the absence of an express contract, is not entitled to compensation for his personal services, though he has rendered more than his copartners, and while the decisions incline to extend this rule to services rendered in winding up the business after dissolution, yet, under the exceptional facts of this case, equity would decree compensation to the surviving partner for his services rendered in the subject matter for the benefit of the firm.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF BERKS COUNTY.</p> <p>No. 149 July Term 1888, Sup. Ct.; court below, No. 127 August Term 1881, C. P.</p> <p>On July 29,1881, Simon Dreibelbis as the surviving partner of Charles Kutz and Simon Dreibelbis, trading under the firm name of Kutz & Dreibelbis, brought assumpsit against Esther Kutz, executrix of Charles Kutz, deceased, to recover a sum of money in the hands of said executrix claimed to be of the assets of said firm. The declaration was filed on November 29, 1886, and the cause put at issue under the general plea.</p> <p>At the trial on May 31,1888, the facts of the plaintiff’s case were these:</p> <p>On May 11, 1872, Charles Kutz, entered into a sealed contract with the county commissioners of Lebanon county, wherein he agreed to remove the old bridge at Jonestown and re-erect it at Bohr’s Ford, across the Swatara, for the sum of $8,300. After the completion of his work, the commissioners being dissatisfied with the bridge, refused to pay the unpaid balance of the contract price, and he thereupon brought suit against the county of Lebanon to No. 126 November Term 1873, Common Pleas of Lebanon County. Mr. Kutz died July 30, 1876. On October 14,1878, his death was suggested on the record of said suit, and Esther Kutz, his executrix, the defendant in this suit, was substituted as plaintiff. On the same day, a jury having been called in the case, a verdict was rendered in favor of plaintiff for $1,200. Of this sum Esther Kutz paid her attorney in the case $100, and retained $1,100.</p> <p>These facts were not disputed in the present suit, but the plaintiff introduced testimony to the effect that Kutz had made the, contract with the county commissioners of Lebanon county op behalf of himself, Kutz, and of the plaintiff, trading as Kutz and Dreibelbis. This testimony was chiefly as to declarations and admissions made by the deceased. It was not alleged that the parties were partners in any other transaction.</p> <p>The defendant denied that there was a partnership existing in the contract with the county commissioners, and introduced testimony to sustain her contention, consisting chiefly, also, of declarations and admissions of the plaintiff.</p> <p>The court, IIaoenman, P. J., charged the jury:</p> <p>There is no dispute as to the sum. The settlement was for $1,200; $100 was paid to the attorney who drew the $1,200 from the county of Lebanon, and $1,100 was paid to Mr. Steckel, who in his testimony says he paid it to Mrs. Kutz. There is, therefore, no dispute as to the amount.</p> <p>[The important inquiry then arises were these partnership funds. If Dreibelbis was a partner, then this sum is partnership assets, and the surviving partner would be entitled to it in the settlement of the partnership affairs.] 6</p> <p>The court then reviewed the testimony and submitted to the jury to find from the evidence whether the plaintiff and the deceased were partners in the contract or not, and proceeded :</p> <p>Tf they were, then the plaintiff is entitled to a verdict for the amount of money which Mrs. Kutz received, to wit, $1,100. If the jury find they were not partners, the verdict will be for the defendant.</p> <p>I have already answered the defendant’s points in the general charge, but I will do so specifically:</p> <p>1. There is no sufficient proof of a partnership between Charles Kutz and Simon Dreibelbis in this case, and the plaintiff is not entitled to recover, and the verdict should be for the defendant.</p> <p>Answer: The court decline so to instruct you.8</p> <p>2. This action cannot be sustained against the defendant, and the verdict should be in her favor.</p> <p>Answer: This point has been answered in the general charge.7</p> <p>The jury returned a verdict for the plaintiff for $1,100, and judgment was entered thereon. Thereupon the defendant took this writ, assigning as errors, inter alia:</p> <p>6. The parts of the charge embraced in [ ] 6</p> <p>7, 8. The answers to the defendant’s points.7 8</p>

<p>FROM THE DECREE OF THE ORPHANS’ COURT OF BERKS COUNTY.</p> <p>No. 236 January Term 1889, Sup. Ct.; court below, No, ....... July Term 1887, O. C.</p> <p>Iii 1877 or 1878 John C. Nye was married to Elizabeth Riegel. They lived together until 1879 when she left his home, and moved into a house of her own where she resided until her husband’s death in November 1886. A short time after this separation she commenced a suit for desertion, but her complaint was dismissed.</p> <p>After the decease of her husband, Mrs. Nye made application to the administrator of his estate, to have appraised to her goods to the value of $300, under the widows’ exemption act of April 14, 1851, P. L. 613. This was refused. The administrator subsequently filed his account, and upon the audit thereof by the Orphans’ Court, the widow presented a claim for $300 under said act. Her claim was resisted by the heirs upon the ground that she was not living with the decedent at the time of his death, and did not then, and had not for seven years or more prior thereto, sustained a family relation to him, and consequently was not entitled to the $300 claimed.</p> <p>On October 4, 1888, the court, Schwartz, P. J., filed an adjudication, which in part was as follows :</p> <p>Elizabeth Nye, the widow, presents a claim against the estate for $300; and this because the administrator and heirs refused to set aside for her use property to the value of $300.</p> <p>The marriage and demand to have such property appraised and set aside, is admitted. It is contended, however, that she had wilfully and without sufficient cause deserted him for a number of years before his death, and was for that reason not entitled to a widow’s exemption of $300 worth of property out of his estate or to dower.</p> <p>Considerable testimony by their peighbors was submitted, as to whether or not she was justified in separating from him, the force and substance of which amounts to about this: That he was seventy and she some thirty years old, when they entered into wedlock and cohabited for a period of fifteen or sixteen months, and that both had been married before. During the lat-ter part of this cohabitation, they became estranged and quarrelsome with each other, and he threatening and dangerously aggressive towards her. The evidence clearly discloses that he kicked her on two different occasions, the result of the one was a black and blue leg from the knee to the hip. At another time he threatened to break her head with a box, which he had in his hands.</p> <p>If such threats and batteries following each other in close succession, as here, do not make life burdensome and intolerable to a wife and justify her in leaving and separating from her husband, I can hardly conceive a case in which she might properly do so.</p> <p>It is, however, also contended that she is estopped from recovering her $800 exemption as his widow, because of a prosecution for maintenance and support, wherein the judges of the Quarter Sessions dismissed her complaint, and disallowed her any support from her husband. A hearing in a complaint of the kind does not and should not mean such a trial of her rights, as will estop her from having her cause tried or heard in any other forum. If it worked an estoppel, our desertion courts should, and would no doubt, try such cases with more deliberation, care and attention.</p> <p>For these reasons she should have been allowed property to the value of $300 out of her late husband’s estate. The court now allows her $300 as damages in lieu of said property.1</p> <p>The auditing judge further allowed the widow, her witness fees, $24.12,® and of the balance for distribution, to wit, $962.67, which arose entirely out of real estate, awarded to the widow the interest on one third thereof, or $320.89, to be paid to her during her natural life, and at her death the principal to the children and the heirs of John C. Nye, the decedent.3</p> <p>To this adjudication Cain Nye and Augustus Nye, two of the heirs of the decedent, filed exceptions alleging error in the allowance of the exemption, witness fees and dower interest, which exceptions were subsequently dismissed and the adjudication confirmed; thereupon Cain Nye took this appeal and assigned as error:</p> <p>1. The allowance of the widow’s claim of exemption.1</p> <p>2. The allowance of the widow’s claim for witness fees.®</p> <p>3. The award of dower interest to the widow.3</p>

<p>ERROR TO THE OOTJRT OF COMMON PLEAS OF NORTHAMPTON COUNTY.</p> <p>No. 161 January Term 1889, Sup. Ct.; court below, No. 80 April Term 1887, C. P.</p> <p>On April 11, 1887, an appeal was entered by the defendant from tbe judgment of a justice of the peace for 1284.50, in an action by The Aldine Press against Tbe Express Publishing Company, brought to recover damages for the breach of a, contract for the sale and purchase of certain blank advertising sheets. Issue.</p> <p>At the trial on November 25, 1887, tbe following facts appeared :</p> <p>The Aldine Press Company were tbe publishers of an illustrated calendar called an Octavo Annual. There were blank spaces for advertisements on tbe sheet, and it was sold by Tbe Aldine Press to country newspapers with tbe imprint of the purchaser on it. The purchasing paper was to solicit and print advertisements in the blank spaces and issue the sheet as their own publication.</p> <p>Howard Mutchler, the business manager of The Express Publishing Company, signed the following order upon the application of a canvasser of The Aldiae Press:</p> <p>Easton, Pa., March 5, 1886.</p> <p>To GEORGE LINGARD, Sec. & Treas.</p> <p>at 40 Vesf.y Street, New York.</p> <p>Sir:</p> <p>Print for us an edition of your Octavo Annual Sheet for 1887, Five thousand sheets 24X38 inches, 32 pages, according to sample and Price List herewith, and by June 25th MAIL 8 blank dummies, for our use in canvassing (not samples) .... -at $187.50</p> <p>ALSO, 5000 Illuminated Covers for same, printed complete, except top title opaco, imprint and special matter ....</p> <p>Amounting in all to . $232.50</p> <p>which sum we hereby promise to pay, to your order, by four months note before</p> <p>or cash, on delivery of the above subject to countermand by June 15th, 1886.</p> <p>THE FOLLOWING are the representations and conditions on which this, order is made and to which, in case of acceptance, you are bound.</p> <p>—The quality and workmanship of the edition must be equal to sample.</p> <p>—Imprint is to be added on title page of sheet without charge.</p> <p>—Edition, unfolded, to be delivered as per order herewith.</p> <p>—You are not to supply an edition of this sheet,</p> <p>for the year 1887 to any other party in ( Warren Go. N. J. or | Northampton Co., Pa.</p> <p>CAUTION. Do NOT SIGN until you have read the notice on adjoining page relative to Agents’ authority, &c.</p> <p> [Signed,} HOW ARP MUTCHLER, </p> <p> Business Manager, </p> <p> Express Pub. Co. </p> <p> References: First National Bank, Easton, Pa. </p> <p>The portions of the above contract in italics were written; the rest of the contract was printed. The “ notice on the adjoining page ” was as follows :</p> <p>NOTICE.</p> <p>40 Vesey Street, New York, Jan. 2, 1886.</p> <p>This order form is, when signed, merely a business letter of the signer to tho party addressed.</p> <p>It is expressly designed to set forth everything offered and expected, so as to prevent misunderstandings from liaste, inadvertence, or any other cause.</p> <p>All orders are solicited, subject to acceptance in New York City on the face, as written.</p> <p>No one, away from this office, is authorized, at any time, to verbally or otherwise change, modify, or in any way affect the writing, which is the only thing considered and acted upon here.</p> <p>Payment on account of orders must be made only to the order of the Aldine Press, or of the undersigned,</p> <p>GEORGE LINGARI), Sec. & Treas.</p> <p>On June 16, 1886, The Aldine Press notified The Express Publishing Company of their acceptance of the order, sent them a copy of the same, with notice of their acceptance, and on June 21, 1886, sent them the eight blank dummies for use in canvassing. On August 21, 1886, The Express Publishing Co. wrote a letter to The Akline Press, saying:</p> <p>“ Gentlemen : — Some time since we contracted with a representative of your house for the pictorial animal for 1887, with the understanding that it should not be sold to any other house in this vicinity. Wo have learned that the Easton Free Press also made a contract for an annual published by you. We, therefore, revoke our order, and hereby notify you that we do not feel bound to live up to contract, whether the sheets are printed, or not.”</p> <p>This letter was replied to by The Aldine Press, on August 23, 1886, as follows:—</p> <p>“ Gentlemen : — Yours of 21st received. We do not know that we understand you. Have you not before you the duplicate of your order for pictorial annuals which we sent with notice of our acceptance ? All the understandings we know of, are very clearly expressed, and made conditions. Your sheets have been printed as you ordered and, as we shall live up, in every detail, to our contract, we shall expect you to do the same. Outside of any legal obligation, we will say that we had an order from Easton for a totally different hook — size, shape and contents — but the party objecting to yours, because of the patronage he might lose from his, we concluded to let him go, and shall not supply him anything.”</p> <p>On September 21,1886, the animals and covers were sent to The Express Publishing Company, and payment therefor requested. Payment being refused this suit was brought.</p> <p>The plaintiff offered in evidence certain depositions which were objected to because §§77 and 82 of the Rules of Court had not been complied with, and because there was, attached to said depositions a copy of the order dated March 5,1886, and that said order contained certain alterations and interlineations.</p> <p>By the court: Objections overruled; exception.1</p> <p>The plaintiff then offered the order or contract in evidence, which was objected to because of alterations and interlineations alleged to have been made as follows: The date line at the top and the reference at the bottom, and the words “June 25” between the words, “ and by,” and, “ mail,” and also the word “ before ” written over the word “ by ” between the words “countermand” and “June 15 ” were written in the paper after it left Mr. Mutchler’s hands.</p> <p>By the court: The first question is whether or not it is a material alteration. If it is not a material alteration, then we would not take any notice of it; if it is a material alteration, then my recollection of the rule is, that it is a question of fact for the jury; they have the instrument before them and they must determine whether it was made before or after the execution of the contract. The objection is overruled; exception.8</p> <p>The plaintiff also offered in evidence the annuals ordered by the Easton Free Press, and never delivered. Objected to.</p> <p>By the court: Objection overruled.3</p> <p>In his case in chief, the defendant offered to prove by a witness' produced that the plaintiff sold some of their blanks to the Easton Free Press. Objected to.</p> <p>By the court: objection sustained.4</p> <p>The defendant further offered to prove by Howard Mutchler that before the execution of the instrument in suit by the witness, and when the agent read to him the clause, “ You are not to supply an edition of this sheet, for the year 1887, to any other party in Warren county, New Jersey, or Northampton county, Pennsylvania,” the witness objected to signing the contract, and that the agent at that time stated to him that the words, “ edition of this sheet,” meant any sheet published by the plaintiff for that year; and that after the agent had made this statement, and on the faith of that statement, the witness signed the paper, and that the agent also said that he had just arrived in town and that if the witness would sign the contract, he would go out of town without seeing any other persons, and that on the strength of this explanation and representation the witness signed the contract.</p> <p>Objected to, for the reason that it is an endeavor to make an entirely different and distinct contract from the one actually made; that the contract is by no means ambiguous and that there is no allegation of fraud, accident or mistake in the execution of it.</p> <p>By the court: Yes, there is an allegation-of fraud.</p> <p>Objected to further, that it is not competent for the agent to alter or vary the contract by anything that he might say to the witness, without notice to the Aldine Press Company, either expressed or implied; that anything that the agent could say would be entirely unauthorized, and that the witness had no right in the face of that notice to listen to any representations made by the agent.</p> <p>By the court: Objection sustained; exception.5</p> <p>The jury returned a verdict in favor of the plaintiff for $234.50. Judgment having been entered on the verdict, the defendant took this writ assigning as error:</p> <p>1-3. The admission of plaintiff’s offers.1 to 3</p> <p>4, 5. The refusal of defendant’s offers.4 5</p>

<p>ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.</p> <p>No. 105 January Term 1889, Sup. Ct.; court below, No. 276 March Term 1887, C. P. No. 2.</p> <p>On April 25, 1887, George Gebbie and Mary J. Gebbie, his wife, in right of said wife, brought case for deceit against Eliza T. Griswold. Issue.</p> <p>At the trial on February 16, 1888, the facts shown upon which the plaintiffs sought to recover were in substance as follows:</p> <p>William A. Griswold, the husband of the defendant, died in 1881. Desiring to dispose of a country place she owned in her own right, she consulted with a Mr. Strong of New York, her husband’s friend and business associate, and at his suggestion her brother-in-law, John W. Griswold, was asked to see a real estate broker and have the place offered for sale. In the spring of 1882, Mr. Griswold called upon one Everly, a real estate broker, and placed the property in his hands for sale. Mr. Everly advertised the property for sale in the city papers, describing it as a “ country seat of seven acres ” near to Darby station. Mr. Gebbie saw the advertisement and called upon Mr. Everly who showed him photographs and gave him a printed circular in which the property was described in eloquent terms and said to consist “of nearly seven acres of land.” At the interview with Air. Everiy, Air. Gebbie asked as to the price of the property and was told to go and see it. Accordingly Mr. and Mrs. Gebbie visited Darby and there met John W. Griswold, who showed them over the place, and in a conversation, hereinafter given, told of its acreage*' A few days afterward an offer of §24,000 for the place gp^ft stood was made and accepted. The price was subsequently inade §23,000, by the omission of a carriage from the purchase, and on Alay 16,1882, a contract was signed by which the defendant agreed to sell the property, known as Maple Terrace, including certain articles of personalty, for the price last stated. This contract did not mention the acreage of the place. On June 15,1882, the defendant met the plaintiffs for the first time, when she executed and delivered her deed to AlaryAnn Gebbie, and received §12,000 of the purchase money and a mortgage for the balance. The deed then delivered described the property by courses and distances but did not disclose its acreage. The vendees immediately went into possession.</p> <p>In March, 1887, a line of the B. & O. It. Co. was run near the front gate of the property, and in the proceedings to assess the damages resulting, a survey became necessary, when for the first time, as was claimed, the purchasers ascertained that while the property was correctly described in their deed, as to courses and distances, the true acreage within the lines was but four and two tenths acres.</p> <p>Alilton C. Work, a witness called for the plaintiffs, testified that at the time of the dispute between the railroad company and Mr. and Mrs. Gebbie, in relation to the assessment of damages, he called upon the defendant and asked her if she remembered the quantity of the land, and she said she did not; that he asked her if she had seen the circular, and she said she had; that he did not think she stated by whom it was prepared, but she said she had given it to parties who talked about buying the property, and her agent also had done so.</p> <p>George Gebbie, one of the plaintiffs, testified that at his interview with Mr. Everiy, he was told that Air. John Griswold would show him the place: — that if I did not find him there I shoidd find him at the mills in Darby. I went there and found Mr. John Griswold on the lawn of the place. He showed me through the house and through the grounds ; and in the garden, I said, “ This circular says ‘ nearly seven acres the advertisement says ‘seven acres.’ ”</p> <p>Objected to, as to any statement of what passed between the witness and Mr. John Griswold.</p> <p>By the court: Objection overruled; exception.5</p> <p>Q. Did you exhibit that circular to him? A. No ; I don’t think I did. I referred to the circular and the advertisement. I said one said seven acres positively, and the other nearly seven acres. I asked which was correct. He said, “ There is rather over than under seven acres.” I asked him th>e value of land in the neighborhood, and he said land was selling there at $2,000 an acre. I referred to the eloquence of the circular; I asked, did he get up that circular, and he said, “ Yes.”</p> <p>Mrs.- Mary J. Gebbie testified that Mr. Griswold made similar representations to her on the same occasion.</p> <p>Adam Everly, called by the plaintiffs to testify as an expert to the value of the land, stated in his preliminary examination that he had been in the real estate business for sixteen years, and had bought and sold a large amount of real estate ; was familiar, from his knowledge of the trade, of the value of real estate at Darby in 1882. On cross-examination, he stated that he had not bought or sold property in the neighborhood of the Griswold property within two years either way of 1882 ; that at the time of the sale he had made careful inquiry and found • that a sale had taken place at $2,000 per acre in the immediate vicinity, and upon that sale he had based his opinion as to the value of this land; that he could not recall the name, and had no personal relation to the transaction. To the court he stated that he had been engaged in and was acquainted with sales of rural properties in the neighborhood of Philadelphia, and had sold the Fallon property within a reasonable distance, perhaps six miles from tins; had frequently bought and sold other suburban properties on all the roads in the neighborhood of the city, in every direction, and thought he was competent to speak of values, and was so considered.</p> <p>Objected to.</p> <p>By the court: Testimony admitted; exception. 7</p> <p>The witness testified that the fair market valué for this property per acre in 1882 was $2,000.</p> <p>The defendant testified that she had not given Mr. Everly any information about the property, and had not seen Mur until after the offer was accepted; that she never saw either Mr. Everly’s advertisement or the circular, and prior to the beginning of the suit had no knowledge that any representations ■ had been made to Mr. Gebbie with reference to the acreage of the property; that she had heard some member of her family say that her brother-in-law had written a circular descriptive-of the property, and that was all she knew about it. She also' contradicted the testimony of Mr. Work, and testified that she never had any knowledge of the acreage of the property, and did not know that her husband knew the number of acres; it was her own separate estate.</p> <p>John W. Griswold was not called.</p> <p>At the close of the testimony, the defendant’s counsel requested the court to charge the jury that under all the evidence in the case the verdict should be for the defendant.1</p> <p>This point, the court, Hake, P. J., declined, and charged the jury as follows:</p> <p>After Mrs. Griswold had put the matter in Mr. Strong’s hands, he had a conversation with John Griswold, in which John Griswold suggested the propriety of employing Adam Everly, who was a real estate broker, to effect the sale. Mr. Strong had an office here, but his residence was in New York,, and did not find it convenient to attend to the business himself. He therefore assented readily to John Griswold’s idea, and gave him a more general authority, because he said, “ Employ two or three brokers if necessary,” and from that time forth he dismissed the same from his mind, or at least took no further steps in regard to it, as Mrs. Griswold had, as she declares, dismissed it from her mind.</p> <p>John Griswold then proceeded, in the execution of this power, to call upon Mr. Everly and to acquaint him with the situation of the property, giving him a circular which he had prepared, which contained a minute account of the property, among other things stating in explicit terms that the ground contained seven acres.</p> <p>One of the questions in this case may be as to John Gris-wold’s authority to do this much. It is not denied by the defendants, indeed it is a part of their case, or at least of their testimony, that John Griswold was authorized to take whatever steps were necessary, or to employ a real estate agent, to effect the sale ; but it does not necessarily follow that an authority to select a real estate agent to bring about a sale will authorize the agent to take measures to effect such sale. At the same time, when a man is employed to do a thing, it is generally implied, or may be so, that he is to do what is requisite to render Ms employment effectual, and, without stating any proposition of law, [it is a question for the jury to consider whether, if a man is told to select a real estate agent and to employ Mm to sell a piece of property, that does or does not carry with it the duty to give a description of the property to the person so employed.] 2 To some extent it would seem to be so, because he must necessarily say where the property is situated, as, for instance, whether it is in the town or the country. It would not do to call upon a broker, and say, “ I want you to sell a house,” without saying where the house was. Some description, therefore, must be given, and the doubt is as to the extent. I suppose it is a matter of inference or for consideration by the' jury, whether a person who is authorized to select a broker and employs Mm to sell a house, may not state the number of stories, whether it is of brick or stone, and give him some general idea, because otherwise the broker would be comparatively uninformed of what might be material for him to know, in negotiating the sale. I do not say that this would be necessary, because, after the broker had been told where the buildings were, he might look for himself; but on the other hand, I certainly do not mean to tell the jury that a right to give some description of the property might not exist. Mr. John Griswold certainly interpreted his authority in the largest sense.</p> <p>As I have already said, he gave the broker a minute description of the house, containing this more or less material fact, that the ground was seven acres, and Mr. Everly, putting his interpretation upon the information he had received from Mr. Griswold, as coming from a person duly authenticated by the family, proceeded to advertise the property in the newspapers as a property of seven acres.</p> <p>. That advertisement brought the plaintiff in this case, Mr. Gebbie, acting for Mmself and Ms wife, to Mr. Everly’s office, and Everly handed the circular to Mr. Gebbie as containing such information as he had received, at the same time telling Mr. Gebbie that, if he would go to the property that afternoon, he would find Mr. John Griswold there ready to receive him and to show him whatever was to be seen.</p> <p>Now, it has been said, and with some truth, that information given by a seller, or his agent, through an advertisement in the newspapers, or even a circular prepared for the purpose of being exhibited to purchasers, is not always to be regarded by buyers, if they are reasonably cautious, as containing the exact truth. Men habitually praise what they are going to sell. I think that statements which exceed the bounds of truth, and relate to material facts, ought to be avoided ; but in all such cases there are two questions: first, did the seller say what was not true? and next, did the buyer roly upon what he said ?</p> <p>It may be, although I am not asked to express an opinion upon it, and do not as a matter of law, that if this were all, it would not have been enough, although I do not say so. [When, however, the purchaser, Mr. Gebbie and his wife, met Mr. John Griswold that afternoon, they showed, to some extent, that they understood that advertisements or circulars are not always to be relied upon, because they proceeded to question him explicitly, and agreeably to the lady’s testimony, which seemed to me to be candid, she asked: “ Does this property contain the seven acres spoken of?” To which he replied: “More, rather than less.” While walking around the premises with Mr. Griswold, the question was again asked by Mr. Gebbie, and answered in the same way. What followed was that the Gebbies agreed to give $24,000, which was subsequently reduced to $28,000 by the withdrawal of a carriage.] 3</p> <p>It was at this stage of the negotiations that Mrs. Griswold was apprised of the offer, and agreed to accept it. When she ratified the sale by Everly, she accepted him as her agent, even if he were not such previously; but as it is not denied by the defendants that he was empowered, that is not a material question, as it might otherwise have been. Mrs. Griswold and Strong met the purchasers at the office of the conveyancer, to whom the title-papers were handed over by Mr. Everly, Mrs. Griswold receiving the money and delivering the deeds.</p> <p>[Now, on this state of facts, there arise three principal questions, which I leave to the jury, to be decided by them. In the first place, did Mr. Strong as Mrs. Griswold’s agent so far empower John Griswold to act for her in the sale of the premises, as to render her responsible for what he said and did? Second: Did Mr. Griswold state what he did not know to be true, and what was, in fact, false, without having any reasonable ground for believing it ? Third : Was this statement credited and believed by the purchasers ? Did it influence them in buying, and induce them to give a larger sum than they otherwise would have consented to pay? Unless all three of those propositions are found affirmatively by the jury, they should render a verdict for the defendant. If they are so found, the jury may give a verdict for the plaintiffs, if upon the other parts of the case they are of opinion with them.] 4</p> <p>I have not been asked to go into some other particulars which are in the case, and do not mean therefore, to say that the jury must find a verdict for the plaintiffs if the above three points are in their favor, but I do mean to say that, unless they are in their favor, the verdict ought to be for the defendant.</p> <p>The jury returned a verdict in favor of the plaintiffs for 13,640. A rule for a new trial having been discharged, the defendant took this writ, assigning as error:</p> <p>1. The refusal of the defendant’s point.1</p> <p>2-4. The portions of the charge embraced in [ ] 8 t0 4</p> <p>5, 7. The admission of the plaintiffs’ offers.5 7</p>

<p>(a) In an action of assumpsit, the plaintiff filed a narr and bill of particulars averring in substance that the defendant sold land of plaintiff, had taken the security for the purchase money in his own name and fraudulently refused to collect thereon, that he might profit by the high rate of interest paid: the defendant pleaded payment, and payment with leave and set-off, but gave no notice of special matter.</p> <p>(&) At the trial, plaintiff proved and put in evidence a receipt for a deed to be delivered, wherein defendant agreed to pay plaintiff $1,100 less expenses, as the payments of the purchase money on the land were made to him; that defendant had sold the land, delivered the deed, received interest from the purchaser, and from time to time promised to pay plaintiff his share of the purchase money and interest.</p> <p>(c) The defendant offered to prove that the security he had taken for the purchase money was not good and could not be collected; this offer was refused. The defendant offering no evidence to prove payment, the court instructed the jury that under the pleadings, and the evidence if believed, the plaintiff was entitled to recover.</p> <p>1. Under the pleadings and evidence in this case, there was no error in the instruction of the court to the jury: there was nothing in the above receipt which would justify the defendant in accepting a mortgage for the purchase money in his own name, and holding the same for several years; wherefore, the question of the value of said mortgage was immaterial.</p>

<p>from the decree of the court of common pleas of ERIE COUNTY.</p> <p>No. 281 July Term 1888, Sup. Ct.; court below, No. 384 February Term 1881, C. P.</p> <p>On March 14, 1881, A. E. Hall caused judgment to be entered in bis favor against T. W. Applebee upon a judgment note for $105 dated April. 14, 1875, payable April 14,1876. On February 25, 1888, the defendant obtained a rule on the plaintiff to show cause why the judgment should not be opened, and he be allowed to make a defence thereto. Both the plaintiff and the defendant took depositions.</p> <p>The defendant' testified, substantially, that on April 14,1875, he wished to purchase a horse to work on his farm, and learning that Mr. Hall had a horse for sale, in company with G. W. Force, he went to see him ; that he informed Mr. Hall that he wanted to purchase a large, heavy horse to put to farm work every day; that Mr. Hall replied, “ that is just the horse you want, he is sound, true and right, every way; he is a good feeder,” to put him in, and he was good for every day’s hard work, the year round; that Hall repeated a number of times, that he would vouch for the horse being all right, sound and true in every way; that defendant asked his price for the horse, and Mr. Hall replied $150, and he paid $50 and gave his judgment note, now in suit, for $100, payable April 14, 1876.</p> <p>G. W. Force, a witness for defendant, testified, inter alia, that Mr. Hall warranted the horse and said he was sound and good to work, and if he gave him plenty of feed he could do the work.</p> <p>The defendant introduced testimony to prove that the horse after he had purchased him acted crazy and blind, and seemed to have fits, and that Hall knew the horse was worthless.</p> <p>The plaintiff denied that he had warranted the horse, saying, “ I told Applebee that he could hitch up the horse and try him, as I did not know anything about the horse except as I had used him; there was nothing said about warranting the horse; I did not warrant him.” He further testified that the horse had been given him by his son; that he had had the horse only about seven months, and during that time he showed no symptoms of being wrong in any way, though he admitted that he knew that the horse was balky or sunstruek before he sold him. He produced several other witnesses who testified to the same effect.</p> <p>On July 10, 1888, the court, Gunnison, P. J., discharged the rule, saying: “ There is not sufficient testimony to show that the plaintiff knowingly stated what was false in the sale of the horse for which the note ursuit was given, nor will the testimony justify a finding that there was a warranty. The rule to show cause is discharged.”</p> <p>A rule to review this order of the court having been discharged, the defendant took this appeal, assigning the said order as error.</p>

<p>(a) In an action for personal injuries plaintiff proved that the employees in defendant’s machine shop, when operating lathes to turn crank-shafts oí a lighter weight, used anything they saw fit as a counter-balance, and that a piece of iron weighing 40 pounds, so used but improperly-secured, had flown off and struck and injured him.</p> <p>(6) Plaintiff also proved that in turning crank-shafts of a heavier weight, an appliance particularly devised for a counter-balance was used, but failed to prove that such an appliance was generally used in turning shafts of the lighter weight. It also appeared that plaintiff had been an apprentice in the shop for four years, knew how these lathes were operated, but no complaint had been made to defendant thereof.</p> <p>1. In such case, the court below properly entered a judgment of non-suit, because, (1) if there was any negligence in the case, it was that of the foreman of the lathe in not properly securing the counterbalance, and (2) the evidence failed to disclose that the proprietor of the shop was at fault in not providing a superior counter-balance.</p>

Nos. 21 and 305 January Term 1889, Sup. Ct.; court below, No. 18 September Term 1888, and No. 85 November Term 1888, C. P. On May 19, 1888, F. F. Marshall, Jos.

No. 26 January Term 1889, Sup. Ct.; court below, Nos. 276, 277, 278 and 279 September Term 1888, O.- P. On August 18, 1888, judgments were entered in favor of Anna M. Woods, administratrix of W. S. Woods, deceased, for tbe use of John S. Munro, against James T. Woods, on four bonds each containing' a warrant of attorney to confess judgment tbereon.

<p>FROM THE DECREE OF THE COURT OF COMMON PLEAS OF ERIE COUNTY.</p> <p>No. 107 January Term 1889, Sup. Ct.; court below, No. 219 November Term 1887, C. P.</p> <p>On November 80, 1888, a judgment was entered in favor of Susanna Gabel against Ilugo F. Leñare and Katie Leñare, upon a mortgage bond and warrant of attorney for $5,185, dated September 27, 1886, and payable in ten equal annual payments of $518.50 each. The mortgage and bond both contained a description of the same property and also the following clause: “ This bond [or mortgage] is given to secure the balance of purchase money.” On the said judgment a writ of fieri facias was issued to No. 44 February Term 1888, E. D.</p> <p>On January 80, 1888, Katie Leñare filed the following affidavit and motion:</p> <p>“ Katie Leñare, being duly sworn, doth depose and say that she is a married woman, the wife of Hugo F. Leñare, and was his wife on the 27th day of September, a.'D. 1886, and that her husband was then and is now in full life; that some time in August, 1886, Jacob Gabel, the husband of the plaintiff, came to deponent and induced her to enter into negotiations with M. E. I. Biddle, through her agent, Wm. P. Hayes, of Erie, for the purchase of a piece of land 24 feet by 100 feet, part of square No. 407 in the city of Erie; that the title of said land should be made to Susanna Gabel, the wife of said Jacob Gabel, and that your deponent should have possession of the same, paying the interest on the principal, $2,400, annually, and the principal, $2,400, to be paid at the end of ten years.</p> <p>“ That within a short time thereafter, said Jacob Gabel informed your deponent that the negotiations had been closed and a deed had been made to Mrs. Gabel for the land for $5,000, and that this deponent was to go upon the same and erect a building thereon, said Gabel to furnish her from time to time such money as might be required to complete said building, and for which he was to have in such house a room allotted to his use for his natural life at such time as he might require possession thereof, and whatever amount of money was advanced by said Jacob Gabel to this deponent, was at no time to be repaid by her.</p> <p>“That on or about the 27th day of September, 1886, Jacob Gabel came to the deponent’s house with Wm. P. Hayes, Esq., a notary public, and had a bond and mortgage made out in the sum of $5,185, which said Hayes read to this deponent and which she refused to execute; that Jacob Gabel then and there requested a private interview with her, which she granted him, and he then informed her that all bonds and mortgages were made out in double the amounts for which the party was intended to be held or which the party or person would have to pay, and stated to her that she would not be called upon to pay at any time to exceed the interest of $2,400 for ten years, at the end of which time she was to pay $2,400, which was to cancel the bond and mortgage in full, and informed her that, no matter what was set forth in the papers, she would not be bound or held to any other contract,, agreement or obligation other than' the one then and there made by her, to wit: the payment of $2,400 at the end of ten years, and the interest thereon to be paid annually and no more. This deponent, relying upon his representations aild statements, then agreed to sign and execute the papers which she had refused to sign and execute, and which she would not have signed and executed, except on the express representations as made to her by said Jacob Gabel, that the papers could not at any time bind or affect her to exceed $2,400 and the interest.</p> <p>“ That she at no time agreed to pay and at no time purchased the said piece of land at anything to exceed $2,400, that being the price for which the land was offered for sale by M. E. I. Biddle ; and for which a deed was made by her to Susanna Gabel on the 2d day of August, 1886. That through the fraudulent representations and statements made by said Gabel, she was induced to sign, execute and deliver said bond and mortgage, said mortgage being recorded in book 4, page 531; and that Susanna Gabel, the plaintiff, notwithstanding,” etc.</p> <p>“Your deponent therefore prays the court that the said fieri facias may be stayed; that said judgment may be opened and she be let into a defence.”</p> <p>To a rule granted upon the foregoing motion, Susanna Gabel filed an answer, denying in detail the allegations of the petitioner and averring: “ That the entire amount called for by the bond and mortgage is in fact owing by her, Katie Leñare, as provided in said bond and mortgage and is made up of the purchase money agreed to be paid by her for said lot and house upon said lot; and that it is not true that $2,400 is the only sum due to deponent as alleged by Mrs. Katie Leñare; that the bond and mortgage are the property of your deponent and not of Jacob Gabel.”</p> <p>Depositions were taken on behalf of both plaintiff and defendants : the plaintiff, her husband, Jacob Gabel and their adopted daughter all testifying to facts which supported the allegations in the above answer, while the petitioner, and her two children testified to facts substantially as set forth in the petition. William P. Hayes, the notary who took the acknowledgment of the mortgage securing the bond, testified that he read the mortgage over carefully to Mrs. Leñare; that she made no objection to signing it, and the bond and mortgage were both executed in his presence ; that he did not recollect any private conversation held that day between Mrs. Leñare and Jacob Gabel : that if they had conversed in German he would not have understood what they said, but that he did not recollect their having talked together in German. It also appeared that the consideration in the deed from Susanna Gabel to Katie Leñare as recorded was ¡j&5,185.</p> <p>On October 29, 1888, the court, Gunnison, P. J., discharged the rule without filing an opinion. Thereupon the defendants took this appeal, assigning as error the order of the court discharging the rule and refusing to open the judgment.</p>

<p>1. Where a young woman lived with her grandfather as a member of his family for a number of years prior to his death, she is not entitled to be paid for services rendered by her, without proof of an express contract therefor.</p> <p>2. Whatever the nature of her services, whether the performance of household duties or assistance rendered in the transaction of his business, indefinite declarations of the grandfather that he would' pay her, etc., are insufficient to establish a contract for such payment.</p> <p>8. An executor is not entitled to the allowance of a commission upon an advancement made by the testator in his lifetime, or upon his own indebtedness to the estate, brought into the amount with which he has charged himself.</p> <p>4. Under the circumstances of this ease, the accountant’s commission upon the portion of the estate upon which he was entitled to commissions, was properly fixed at five per cent, and, the audit having been rendered necessary by his unfounded charges, it was not error to impose the costs thereof upon the accountant.</p>

No. 93 January Term 1889, Sup. Ct.; court below, No. 13 May Term 1887, C. P. To the first Monday of March, 1887, C. Van Horne brought ejectment against Ruth Clark to recover a tract of land in Troy township, described as part of tract No. 1374, containing 33’- acres. Issue. At the trial on June 1, 1888, before Henderson, P. J., it appeared that one William J. Clark had title to the property in dispute by deed dated January 11,1845.

<p>1. Whether, if the satisfying of an old judgment which included usurious interest and the confession of a, new one in settlement thereof, be simultaneous or nearly so, the court may consider the transaction a mere device fraudulently to conclude tiie debtor and on that ground strike oft the satisfaction and open both judgments, not decided.*</p> <p>2. Where, however, upon a rule to strike off the satisfaction of an old judgment and open the same to permit the usurious interest therein to be set up as a defenecí to a subsequent judgment for the same debt, the court finds upon sufficient evidence that the transaction was not a deviee to conclude the debtor, it is not error to refuse the application.</p>

<p>from the decree of the court of common pleas of CRAWFORD COUNTY.</p> <p>No. 465 January Term 1889, Sup. Ct.; court below, No! 299 January Term 1876, and No. 768 February Term 1879, C. P.</p> <p>On January 21, 1876, on a note with warrant of attorney, judgment was entered to No. 299 January Term 1876, in favor of J. H. Lenhart, cashier, in trust for the Peoples Savings Bank, against S. Newton Pfettis,'A. S. Beatty and R. P. Miller, for the sum of -$2,667, -with interest from January 14, 1876. On May 24,1876, this judgment was satisfied in full of debt, interest and costs.</p> <p>On February 13, 1882, upon petition of S. Newton Pettis and R. P. Miller, a rule was granted to show cause why a judgment, entered to No. 768 February Term 1879, should not be opened and the defendants let into a defence, and why the satisfaction entered upon judgment to No. 299 January Term 1876,. should not be stricken off and said judgment also opened to let defendants into a defence.</p> <p>Upon the foregoing rule, the only testimony filed was the deposition of S. Newton Pettis, who testified as follows:</p> <p>Tn the spring of 1872,1 was indebted to the Peoples Savings Bank, of Meadville, a little over $1,500, which indebtedness was soon increased to over $2,500, about $2,537, which the bank continued to carry for me, on my paying interest upon the same at the rate of twelve per cent per annum, until the spring of 1877, during which time 1 paid the bank upon such indebtedness usurious interest, which with the interest upon such usurious amounts paid at different times, amounted to the sum of $835.37., upon the 23d day of April, 1877.</p> <p>The bank entered a judgment against me and my sureties, to 299 January Term 1876, for the amount of such $2,500 indebtedness, and feeling that such a record was unjust to my sureties, and embarrassed them, I asked the bank to take that judgment from the record, and accept instead one obligation of $1,000, and three others of $500 each, with sureties perfectly responsible, and thereby obviating the necessity of a court entry record against me and my sureties, and the bank generously consented to do it, and to that end took the judgment off the record on the 24th of May, 1876, and accepted my obligations, with sureties for three notes of $500, and one for a thousand, the latter being signed by myself and R. P. Miller, as surety. These notes were all renewed from time to time until the spring of 1877, when early in March the three $500 notes were paid out of a fund belonging to me, and $195 applied on the $1,000 note, signed by myself a.nd Mr. Miller. Soon after, Mr. Miller and myself gave a note dated the 18th day of April, 1877, for the unpaid portion of the note of $1,000, which with the $195 credited upon it left $805, due upon the face of it, and the interest from the date of maturity of the thousand dollar note, to the 18th of April, 1877, amounted, to the sum of 1881 and some cents, and for that Mr. Miller joined with me in an obligation which was the winding up of the often renewed 12,500 obligation transaction. It was renewed often, and finally judgment was entered upon it to 768 February Term 1879.</p> <p>The satisfaction of the cashier of the bank May 24, 1876, was not because of payment by me of the judgment, but to substitute the four notes then given for the obligation upon which judgment had been entered to 299 January Term, 1876.</p> <p>Cross examined: Q. On what date was the judgment entered to 299 January Term 1876? A. Upon examination of the record in the prothonotary’s office, I find that it was on the 21st day of January, 1876.</p> <p>Q. On what date was it satisfied? A. The same record shows it to have been satisfied May 24, 1876. Q. The judgment was satisfied by the bank at your request, was it not ? A. It was. Q. On what date did you make application to the court to have the satisfaction of that judgment stricken off and the judgment opened? A. Judging from the records in the case, I would say that it was done upon the 13th day of February, 1882. Q. The rule to show cause was granted upon that last named date, .was it not? A. Yes, sir.</p> <p>Re-direct: Q. The judgment was satisfied by the bank at your request for what reason ? A. It was for the purpose of relieving my sureties from the record of a judgment against them,- as it was my debt, and I did not wish to embarrass them in their business. I proposed the satisfaction of the judgment and the exchange of securities, which they consented to by taking the four notes with different and responsible sureties on each note.</p> <p>On March 19, 1889, the court, Mehabd, P. J., 35th judicial district, specially presiding, filed the following opinion:</p> <p>The above stated judgments are said to contain usury. The latter is alive, but the former was satisfied on May 24, 1876. It is conceded that the fact alleged is sufficient ground for opening the live judgment; but it is denied that satisfaction should be taken off the other, to open it on the ground of usury, unless it were satisfied under circumstances showing fraud, accident or mistake.</p> <p>A debtor cannot be required to pay more than the lawful rate of interest. Bui,a contract to do so is not unlawful, in the sense that it is penal or against public policy. The matter rests wholly with the parties themselves: Second N. Bank’s App., 85 Pa. 532.; Lennig’s App., 93 Pa. 307, Montague v. McDowell, 99 Pa. 269. And yet, however solemn the promise; however often renewed; or however equitable, in the proper sense of the word, that he should pay it, the promisor has a legal right to deduct the excess of interest from liis debt.</p> <p>Where a judgment has been entered by confession, it is the duty of the court to interfere at the instance of the defendant to relieve him from the illegal interest: Wood’s App., 1 Penny. 259; otherwise the court would be lending its aid to the collection of money which the act of assembly says the debtor shall not be required to pay.</p> <p>Whatever mutation the instrument representing the contract may undergo, the original taint remains and entitles the debtor to relief: Campbell v. Sloan, 62 Pa. 481; Miller v. Irwin, 85 Pa. 376. But when the usurious contract is at an end, the fact that a debt growing out of it still exists, does not keep alive or carry with it a right to relief from the usury paid under the former contract, even though the present debtor was responsible under it: Macungie Savings Bank v. Hottenstein, 89 Pa. 318 ; Bly v. Second N. Bank, 79 Pa. 453.</p> <p>These are the general principles which enter into this ease, so far as it is a question of usury.</p> <p>It appeal's that this judgment, No. 299 January Term 1876, was entered against the defendants for $2,667, which was in part usurious. The defendants, with full knowledge of all the facts now alleged, seeking their own advantage, requested the plaintiff to accept four notes of the principal defendant, with sufficient sureties, in payment of the judgment, so that it might be satisfied. This was accordingly done. In tlie course of time, another judgment, No. 768 February Term 1879, was entered on one of the notes so taken. The principal defendant asks that the satisfaction he taken off the first judgment so as, eventually, to reduce the amount of the second by deducting the usury embraced in the first.</p> <p>The first judgment was paid. This was the interest of the parties; it was likewise the legal effect of the transaction on its face: Montague v. McDowell, 99 Pa. 269. Although the new notes grew out of this judgment, they were not a continuation of it or of the contract which was merged in it. If this be true, Campbell v. Sloan, 62 Pa. 481, and the line of cases it represents, does not apply.</p> <p>The judgment was an adjudication of the amount due the plaintiff. Until opened it was conclusive. If, instead of seeking to have it ojjened, the defendants saw fit to pay it, the loss of remedy was their own act. One may be relieved from the effect of his own act, if it were induced by fraud, accident or mistake. This extends to taking off an entry of satisfaction: Murphy v. Flood, 2 Gr. 411. If no such fact appear, but on the contrary the defendants, with full knowledge of their rights, procured the entry to be made, it is hard to find ground for their relief.</p> <p>This, I think, is clearly implied, if not pointedly said, in Montague v. McDowell, supra. Fraud and mistake are the grounds there mentioned as sufficient to strike off the satisfaction of a judgment; but it is not intimated that the simple fact of usury would warrant it. A fraudulent device to conclude the debtor would be sufficient; and this, the Supreme Court there say, might be inferred from the fact that the satisfying of the old judgment and the giving of the new were simultaneous, or nearly so. This strongly implies that something more than the existence of usury, in the first judgment, is necessary; .for to what end should an inference of fraud be drawn, if a conceded fact were sufficient?</p> <p>It is to be borne in mind, that the legal status of the parties to a satisfied usurious judgment, is not the same as to one not satisfied, so far as the usury is concerned. In the latter, the plaintiff needs the machinery of the law to enforce his demand; but if the defendant seeks to change the record of the former, he is the actor and must show good cause. In the latter case, he can rest on his right to deduct and retain the excess of interest; but in the former, as from a legal standpoint he has paid the interest, he must have equitable ground for going behind his act. If to serve his own ends, he induces the plaintiff to accept payment in notes rather than money, and procures the judgment thus paid to be satisfied and is in no way overreached, the fact that he might have avoided his promise before satisfaction was entered, is not such an equity as should disturb the status quo.</p> <p>The rule granted at No. 299 January Term 1876, is discharged. The rule granted at No. 768 February Term 1879, is made absolute and the judgment opened accordingly.</p> <p>An issue is therefore granted to try the fact, how much was lawfully owing on said judgment at the date it was entered. In this issue the parties shall stand, as they now are, the note being in the place of a declaration and the defendants to enter plea of payment.</p> <p>Thereupon the petitioners took this appeal, assigning as .error the order of the court discharging the rule granted.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF ERIE COUNTY.</p> <p>No. 464 January Term 1889, Sup. Ct.; court below, No. 118 November Term 1887, C. P.</p> <p>On October 29,1887, Theo. W. Barton brought an action of assumpsit against William Benson to recover the amount of a judgment against the estate of James F. Benson, deceased, wliicli the plaintiff alleged that the defendant had agreed to pay. Issue.</p> <p>At the trial on January 26, 1889, the plaintiff’s evidence was substantially to the following effect:</p> <p>James F. Benson, of Waterford township, Erie Co., Pa., died in March, 1885, leaving a widow and a family of children, and owning a farm of about 70 acres of improved land. This farm was incumbered by the lien of three judgments, as follows: the first, in favor of William Benson, amounting witli interest and costs to $2,072.65: the second, in favor of Theo. W. Barton, amounting with interest and costs to $560.58; the third, in favor of -William Benson, amounting witli interest and costs to $1,782.37, making a total of liens against the real estate of the decedent, $4,865.60. The real estate of the decedent was worth not more than $3,000.</p> <p>The administratrix of decedent procured an order of the Orphans’ Court to sell the real estate for the payment of the debts. On the day fixed for the sale the defendant, Benson, attended the sale and the plaintiff, Barton, sent his agent W. L. Kelly, who was Barton’s brother-in-law to attend in his interest. The only other persons present were Leon Benson, a son of decedent, and W. I. Port, who acted for the administratrix in making the sale. The defendant there agreed with Kelly, that if he, Kelly, would not bid the property up to an amount sufficient to cover Barton’s lien, he, Benson, would pay Barton’s judgment in full, as he would have to do so in order to protect his lien that was subsequent to Barton’s. In pursuance of this agreement Kelly refrained from bidding the property up to the sum of $3,000, enough to cover Barton’s judgment, and the farm was struck off to Benson for $1,859, in pursuance of the agreement; thereafter the sale was confirmed to him and deed made in pursuance thereof. Barton assigned his judgment to Benson, so that he, being then the only lien creditor, was in a position to receipt his bid, after payment of expenses, to the administratrix without the payment of the money and the expense of an auditor to make distribution, and did so receipt for $1,456.52, to apply on his liens.</p> <p>The defendant denied altogether having made the contract with Kelly as alleged by the plaintiff, and further testified, that . to avoid the payment of his bid into the sheriff’s hands, he had suggested to Barton that he should formally assign his judgment to him, and that he would pay to Barton whatever might be awarded to him on distribution; that after payment of the expenses and the widow’s exemption $300, there remained $1,456.52, for which sum on confirmation of the sale he had given the administratrix his receipt, the amount to be applied on his liens.</p> <p>It was also shown that the alleged agreement between Kelly on the part of Barton, and William Benson, was unknown to the decedent’s administratrix, and to Leon Benson. There was no testimony to show that it was known to the other heirs of the decedent.</p> <p>At the close of the testimony, the court, Gunnison, P. L, instructed the jury that the agreement established by the plaintiff’s testimony was contrary to public policy and could not be enforced.</p> <p>The jury returned a verdict for the defendant. A rule for a new trial having been discharged and judgment entered, the plaintiff took this writ, assigning the instruction to the jury as error.</p>

<p>(a) Pending the distribution by an auditor of the proceeds of a sheriff’s sale of mortgaged real estate, terre-tenants presented a petition alleging that no service of the scire facias sur mortgage was made on them; that they were not made parties to the suit, and they could prove by other evidence than that offered at the trial of the scire facias that no money was due on the mortgage and no judgment should have been rendered therein.</p> <p>X. It was not error to refuse an issue prayed for, as no disputed question óf fact as to which the issue was demanded was set out in the petition ; moreover, the proceeding upon the scire facias having passed into judgment, the auditor was concluded thereby and the defence suggested could not be made before him on the distribution óf the fund.</p>

No. 375 January Term 1889, Sup. Ct.; court below, No. 60 November Term 1886, C. P. To the number and term of the court below, the defendant appealed from the judgment of a justice of the peace for the sum of $110, in favor of Conrad Reitze against the Meadville & Linesville Railway Co. On January 27, 1887, the plaintiff filed a declaration charging trespass for the killing of a horse. Plea, not guilty.

No. 895 January Term 1889, Sup. Ct.; court below, No. 88 February Term 1888, C. P. On December 10, 1884, John F. O’Reilly issued a writ of capias in trespass vi et armis against Charles L. Hawes to recover damages for an assault and battery, and on January 5, 1885, filed a declaration averring: “For that the said defendant heretofore, to wit, on or about the 18th day of November, A. r>. 1884, in the city of Erie, in the county aforesaid, with force of arms made an assault…

<p>ERROR TO THE COURT OF COMMON PLEAS OF ERIE COUNTY.</p> <p>No. 411 January Term 1889, Sup. Ct.; court below, No. 143 May Term 1887, and No. 29 September Term 1887, O. P.</p> <p>On April 14, 1887, D. W. Nason filed an appeal from tbe report of tbe auditors of Erie county, auditing his account as treasurer of the directors of the poor of said county. On May 9th, the court directed an issue “ to try the facts as to whether the report of said auditors is correct in refusing to said appellant the credit claimed by him for tbe said sum of $1,582.69; the directors of the poor of the county of Erie to be plaintiff, and the report of said auditors to stand as a declaration in this case, and the plea of said appellant, who shall be the defendant, to be payment with leave,” etc.</p> <p>On October 10, 1887, it was agreed by the parties that the cause be submitted to the decision of the court, without a jury, under the. act of April 22, 1874, P. L. 109.</p> <p>At the trial which followed, the plaintiffs put in evidence the report of the county auditors for the year 1886, showing the balance due from the defendant, and rested. In the defendant’s case, D. W. Nason, the defendant, was called in his own behalf and testified that he was treasurer and secretary of the board of directors of the poor up to April 1, 1886; that Mr. Henderson, the president, called a special meeting of the board along the last' of March, 1886; that Mr. McAllister and Mr. Willis were notified by mail ; there were notices written and put into the post-office; that Mr. Willis and Mr. Henderson, with Mr. A. J. Foster, the solicitor, attendedj and that no minutes were made of the meeting or of the business transacted. The witness proceeded: “ I wanted to settle, which was the reason of tbe calling of the meeting. I wanted to know what they wanted to do about the Humboldt Bank matter. McAllister did not come. Willis said he had investigated and had the solicitor investigate, and as nearly as he could learn they could not hold me for it. He moved that I make an assignment of the bank- book to them. It was in my name as treasurer. He and Henderson both agreed to it. The solicitor drew the assignment in the bank book. I signed it. That is the book, this is the assignment. Mr. Willis said to Henderson that, after the auditor’s report and' I had paid balance to my successor, he was to give up my bond. I brought receipt from Town, my successor, and handed it to' Henderson. He gave me the bond in presence of Foster, solicitor.” Offer:</p> <p>Defendant offers to prove by this and other witnesses that the bank was reported solvent and safe at the time this money was deposited and up to the time of failure; and that it had a large number of depositors, among whom were some of the most prudent and conservative business men in the city of ’ Erie; and was considered solvent by the defendant and the community.</p> <p>Objected to.</p> <p>By the court: Question rejected and objection sustained; exception.1</p> <p>A. J. Foster, testified that he was present at the special meeting, March 31, 1886 ; the purpose of the meeting was to settle with Nason, so auditors could meet and audit his accounts; the question as to the liability of Nason on his bond arose: witness did not think there were any formal motions, Mr. Willis and Mr. Henderson simply talked the matter over:</p> <p>Q. What was said by Willis and Henderson at this meeting, as to the settlement of the account of Mr. Nason, and what was done in pursuance thereof, in presence of Mr. Nason?</p> <p>Objected to as incompetent.</p> <p>By the court: Objection sustained; exception.8</p> <p>The cause having been closed on the testimony, the court, Gunnison, P. J., filed the following decision :</p> <p>The plaintiffs submit that under the evidence and the law, and upon the whole case, the judgment should be for the plaintiffs for the amount of the reported deficiency and interest.</p> <p>Answer: This point is affirmed.3</p> <p>The court is requested by the defendants to find as the law applicable to and governing the decision of this case as follows, to wit:</p> <p>1. That the act of assembly of this commonwealth, entitled “ An act extending the power and authority of county auditors, authorizing them to settle, audit and adjust the accounts of the directors of the poor of the several counties of this commonwealth,” approved April 22, 1879, and the amendment thereto, approved June 2, 1881, does not give said auditors power to settle, audit and adjust the accounts of the defendant as treasurer, he not being the treasurer of the poor house, but of the corporation styled “ The Directors of the Poor and of the House of Employment of the County of Erie.”</p> <p>Answer: Refused.4</p> <p>2. If the court shall be of opinion that the phraseology of said acts does include the defendant as treasurer of the directors of the poor, then he is asked to decide that said acts .are unconstitutional so far as relates to such officer, because it is not set out in the title of said respective acts, that said county auditors shall have power to audit or settle the accounts of any other officers than those of “ directors of the poor,” and therefore violates § 8, article III. of the constitution of this commonwealth.</p> <p>Answer: Refused.5</p> <p>3. That the poor directors of Erie county have full power under the acts creating said corporation to settle and adjust the accounts of their treasurer with them, and that it is their duty to do so; and that they, therefore, have full power and authority to discharge and acquit him of all liability to said corporation, and that such settlement, acquittal and discharge, is binding upon said corporation, if its terms have been complied with by such treasurer.</p> <p>Answer: Refused.6</p> <p>4. That even if the meeting of March 31, 1886, was not legally called, for want of proper notice, or for want of notice to any one of the directors, the two directors present, who constituted a majority of the said board, having made a settlement with said defendant as treasurer, the conditions of which have been complied with by said treasurer, and accepted by said directors, and the conditions and terms of said settlement having been made known to the full board at its next regular meeting in April, without dissent by any of them, said settlement is binding on said corporation, and it is now estopped to claim said sum of $1,582.09 from the said defendant, or that he was not released from all further liability to it by said contract of settlement.</p> <p>Answer: Refused.7</p> <p>This is an issue, formed upon the appeal of the defendant from the report of the county auditors, reporting a balance in his hands as treasurer of the directors of the poor of $1,582.69. The facts, as they appeared from the admissions of counsel, and evidence produced at the trial, are substantially as follows:</p> <p>1. The plaintiffs .are a corporation, invested with the care and maintenance of the poor of Erie county, and for that purpose have power to call upon the commissioners of Erie county for such amount of money, from year to year, as they may deem necessary.</p> <p>2. The defendant was by said directors duly appointed treasurer of said corporation, January 12, 1885, for the term of one year; qualified, gave a bond in the regular form, and continued to act under this appointment until January 6,1886, when he was appointed to hold the office temporarily, or until April 1, 1886, but gave no new bond upon such reappointment. In his capacity of treasurer, he paid all warrants drawn by order of the board, including those for the expenses at the poor house, but no warrants were paid by him upon the order of the steward of the poor house, who had no authority to draw warrants upon the funds in his hands. His successor entered upon the duties of his office April 1, 1886.</p> <p>8. The defendant, as treasurer aforesaid, received from the treasurer of the county of Erie, on January 12, 1885, a check on the Humboldt Safe Deposit and Trust Co., of Erie, Pa., for the sum of seven thousand dollars, payable out of the funds of the county then on deposit in said bank. He deposited the check in the same bank, and it was credited to him in the deposit book issued to him as treasurer by the said bank, and was drawn upon by the defendant as treasurer aforesaid, to pay the warrants made and issued by said directors of the poor.</p> <p>4. The Humboldt Safe Deposit and Trust Co. became insolvent and suspended payment February 1,1885, and on April 4, 1885, made an assignment of all its assets to J. C. Hilton, Esq., for the benefit of creditors. Upon the day upon which the bank suspended payment, there was a balance to the credit of the account of D. W. Nason, treasurer, of $1,758.54, which was reduced by a dividend made by the officers of the bank, before the assignment to Hilton, to $1,582.69.</p> <p>5. The county auditors who audited the defendant’s account for the year 1885, reported February 9, 1886, a balance in the treasury of $19,806.63, “which includes $1,582.69 deposited in Humboldt Bank.” This 'report was not appealed from.</p> <p>6. In March, 1886, Joseph Henderson, president of the board of directors of the poor, etc., directed the defendant, as secretary of the board, to call a special meeting of the directors, for the purpose of settling with the defendant, to be held March 81, 1886, at the office of the board, in the city of Erie, the regular place for meeting being the poor house in Millcreek township. Notices of the meeting were accordingly written by the defendant, and placed in a letter box in the city of Erie, post-paid, directed to the two directors, Franklin Willis and O. C. McAllister, the third member of the board being Mr. Henderson, the president, by whose direction the meeting was called. Franklin Willis received the notice addressed to him-Mr. McAllister never received the notice sent him.</p> <p>7. On March 31, two of the directors, to-wit: Joseph.Henderson and Franklin Willis, met at the office in the city of Erie, Mr. McAllister not being present, and agreed to a settlement with the defendants as follows: Upon the defendant assigning to the directors of the poor the deposit book issued by the Humboldt Safe Deposit and Trust Co., with his rights thereunder, and transferring and delivering to his successor all books and papers pertaining to the office, and paying to his successor all money in his hands as treasurer, he should be released from all liability for the amount in the bank, and his bond should be surrendered and canceled. No minutes of this meeting were kept by the secretary. The proceedings were passed by the testimony of those present. The proceedings were informal. No motions were put or declared adopted. The defendant performed the part of the agreement so made to be performed by him, and received his bond from the president of the board.</p> <p>8. There was no subsequent formal or official ratification by the board of the action had at the special meeting- of March 31, 1886. Mr. McAllister, the member who was not present at that meeting, was informed at the next regular meeting of what had been done by his colleagues at the special meeting. The plaintiffs have, however, received $237.40, upon the claim, from the assignee of the bank, upon a partial distribution of the assets collected by him.</p> <p>9. The county auditors, who audited the defendant’s account from January 1,1886, to April 1,1886, reported a balance due from him of $1,354.79. It was admitted, however, that the amount reported by them was erroneous, the real balance of the deposit in the bank, after deducting the amount received upon the partial distribution, being $1,345.29. From this report the defendant appealed, upon which this issue was formed.</p> <p>On the part of the plaintiffs it is contended that the defendant was bound to account for and pay over all moneys received by him in his official capacity; that the failure of the bank was no defence to the payment of the balance standing to the credit of Ms account as treasurer; that there never was a settlement between him and the board of directors, whatever was done having been done by the two individual members present at the time, not at a legal meeting of the board; and that even if such a settlement liad been made by the board at a regular meeting, it would have been ultra vires, and that it could not be subsequently ratified.</p> <p>The defendant claims that the settlement made between him and the two directors, was upon good consideration, and was within the scope of the authority of the board of directors; that the knowledge of that settlement acquired by the third director soon after it was made, he not objecting thereto, amounted to a ratification by the board; and that having accepted the distribution made by the assignee of the bank upon the claim assigned to them by the defendant, they are now es-topped from denying the validity of the settlement. He further contends that there is no authority for the auditing and settlement of his accounts by the county auditors; that the acts of April 22, 1879, P. L. 80, and June 2,1881, P. L. 44, making it the duty of the county auditors to audit the accounts of “ directors of the poor and of the treasurer and steward of any poor house within any county wherever a poor house has been, or may hereafter be erected,” do not authorize them to audit the accounts of the treasurer of the directors of the poor; also that each act is unconstitutional so far as the accounts of treasurer are concerned, because it does not clearly express in its title the subject matter; and the act of 1881 is unconstitutional because it is special legislation.</p> <p>The first question arising in the determination of the case is one of jurisdiction, and involves the constitutionality of the acts of 1879 and 1881. If the county auditors had no authority to audit the defendant’s account, their audit was not binding on him and his appeal should be sustained. Whether or not the act of 1881 is special legislation need not be considered. Its purpose was to limit the operation of the act of 1879 to the cases specified. The act of 1879 is not objectionable as special legislation certainly.</p> <p>I can see no force in the distinction made by the counsel for the defendant that he is not “ treasurer of the poor house,” and that therefore the act does not contemplate him as one of the officers whose accounts are to be audited by the county auditors. I have not been referred to, nor have I been able to ■find any act of assembly creating the office ■ of “ treasurer of the poor house.” The defendant was treasurer of the directors of the poor, and as such it was his duty to pay all warrants drawn by the directors for all expenses at the poor house. There was no other person authorized to pay those warrants. I am therefore of the opinion that he was “ treasurer of the poor house ” within the meaning of the act of assembly.</p> <p>Does the act offend against the constitution so far as this office is concerned, in that it does not indicate its subject sufficiently in its title ? It is entitled “ An act extending the 1 powers and authority of county auditors, authorizing them to settle, audit and adjust the accounts of the directors of the poor of the several counties of the commonwealth.” It enacts, 44 That in addition to the powers and duties of pounty auditors, as now conferred on them by law, it shall be their duty to audit and adjust the accounts of the directors of the poor, and of the treasurer and steward of each and every poor house,” etc. If the title were simply “ An act extending the power and authority of county auditors,” omitting the clause which follows, there would be no doubt as to its constitutionality. It must be borne in mind that “ all the presumptions are in favor, of the constitutionality of an act of assembly; to doubt is to decide in favor of its constitutionality: ” Craig v. First P. Church, 88 Pa. 42. “ It is sufficient if the title fairly gives notice of the subject matter of the act, so as reasonably to lead to an inquiry into its body: ” Esling’s App., 89 Pa. 205 ; Allegheny County Home’s Case, 77 Pa. 80. The provision authorizing the settlement and auditing of the accounts of the treasurer of the poor house is germane to the subject matter as expressed in the title. The accounts of the treasurer of the poor house are the accounts between him and the directors of the poor. They are the accounts of' the directors themselves. I am therefore of opinion that the' act is constitutional.</p> <p>Since tlie decision in "Baily v. The Commonwealth, 9 Cent. R. 223, it cannot be doubted that the law is in this state, that 'in an action against a receiver of public moneys, it is no defence that the money was deposited in good faith, in a bank which afterwards became insolvent, by which insolvency the money was lost. The defendant is therefore liable for the balance claimed, unless he has been discharged by the settlement-which lie alleges was made by the directors of the poor with him. Does the testimony show that such a settlement was-made ?</p> <p>That an attempt was made to make it by two members of the board is true. But it was not at a regular meeting; the third member was not present, nor did he have due and legal notice of the meeting. It is well settled that notice of a special meeting of a corporation must be given to each person entitled to be present; and further, that when there is no method of giving notice prescribed by law, or by the by-laws or regulations of the corporation, personal notice is required: 1 Potter on Corporations, §§ 830, 837, 342; Pike Co. v. Rowland, 94 Pa. 238. No notice whatever was received by Mr. McAllister, and that defect not being cured by his presence without notice, the settlement made or attempted to be made by the members, can have no binding effect. Nor was there such subsequent ratification by the board as would be binding. No minutes of the special meeting were recorded, none were afterwards read or adopted. The fact that Mr. McAllister was afterwards told of the action of his fellow-directors, he not protesting, would not amount to ratification. Nothing but an official ratification at a legal meeting would avail to bind the board.</p> <p>The defendant, however, urges that the plaintiffs having-received a dividend from the assignee of the bank, upon the account transferred to them by him, are estopped from questioning the validity of the agreement by which he was to be released, even if the agreement were not made, or ratified by the board at a legal meeting. The facts show that there was one essential element lacking to constitute an estoppel. In order to successfully set up an estoppel, it must appear that the party setting it up was induced by the acts or representations of the other party to act to his injury. The defendant has not shown that he sustained any injury. Moreover, the claim he assigned to them was for money deposited by him as treasurer, which was the very money he was bound in law to turn over or pay to the board, or to his successor in office, and not his own money. Had he assigned to them his private and individual bank account, it is possible a different question might have been presented. But when they received the dividend, they but received their own. It amounted to no more than his paying to them so much on account of his indebtedness to them, which but reduced the amount of the indebtedness. If I am correct in this conclusion, it must follow, not only that there was no ratification .of the contract, but no estoppel by the acts of the plaintiffs, and no consideration for the contract if it was within the power of the directors to make, even if made regularly and legally.</p> <p>The appeal of the defendant is therefore dismissed at the cost of the defendant appellant, and the prothonotary is directed to give notice of this decision to the parties or their attorneys, and at the expiration of thirty days after such notice, to enter judgment against the defendant and in favor of the plaintiffs for costs, unless exceptions are filed in the meantime.</p> <p>Various exceptions filed by the defendant to the decision of the court were dismissed, and judgment entered accordingly, whereupon the defendant took this writ assigning as error:</p> <p>1, 2. The refusal of defendant’s offers.1 3</p> <p>3. The affirmance of plaintiff’s point.3</p> <p>4-7. The refusal of defendant’s points.4 t0 7</p> <p>8. The dismissal of defendant’s appeal.</p>

<p>1. On the trial of an issue in sheriff’s interpleader the plaintiff claimant was allowed to amend the declaration by adding other enumerated articles of household goods to those designated therein; the defendant in the issue having withdrawn all claim of title in the execution defendant to any of the household goods, the allowance of the amendment was not error.</p> <p>2. When an assignment of error, relating to the admission or rejection of testimony, is so drawn that it does not show the testimony adduced, or proposed to be adduced, under the offer admitted or rejected, but merely discloses a question propounded and objected to, and admitted, or refused, it is not in conformity with Rule XXTV. and will be disregarded.*</p>

No. 142 January Term 1889, Sup. Ct. To tbe number and term above stated, William Malone presented his petition to the Honorable, the Chief Justice and his Associate Justices of the Supreme Court of Pennsylvania, representing : That at a Court of Quarter Sessions, held at Ridgway, in and for the county of Elk, in the state of Pennsylvania, on November 19, 1884, four separate indictments were returned against him; that said indictments were numbered 12, 13, 14 and 15 November…

<p>ERROR TO THE COURT OE COMMON PLEAS OF SCHUYLKILL COUNTY.</p> <p>No. 249 January Term 1889, Sup. Ct.; court below, No. 100 January Term 1885. C. P.</p> <p>On December 1, 1884, Daniel Freiler and Barbara Freiler, his wife, in right of said Barbara, brought case against F. G. Kear and Daniel Freiler, trading as F. G. Kear & Co. The summons was returned duly served on both defendants. A declaration having been filed, defendant Kear pleaded, “ nonassumpsit, payment, and payment with leave,” etc. No other plea, either in abatement or in bar, was filed. Defendant Freiler did not appear, nor plead.</p> <p>At the trial on September 29, 1887, before Pershing, P. J., it was shown that F. G. Kear & Co. had leased a brewery from Barbara Freiler, the plaintiff, wife of Daniel Freiler, one of the members of said firm, at a yearly rental of $800, the lessees agreeing to keep the premises in good repair. They went into possession, and while in such possession as tenants, they did certain acts in connection with the erection of an ice-house which, as alleged and shown by the testimony, caused great injury to the demised premises.</p> <p>At the close of the testimony, the defendant presented the following point for instructions :</p> <p>1. The evidence being undisputed, that Barbara A. Freiler, in whose right this action has been brought, is the wife of Daniel Freiler, a defendant (and who is also made plaintiff with said Barbara), no separation being alleged, or in fact having at any time existed between them, this action cannot be maintained, and the verdict must be for the defendant.</p> <p>To this the court made the following reply:</p> <p>Answer: This raises a square question of law, and an important question. We will answer it in the negative for the present, and reserve it for consideration hereafter on motion in arrest of judgment, for new trial, or on rule for judgment non obstante veredicto.</p> <p>After instructions upon the whole case, reserving the question raised by the foregoing point, the jury on October 6,1887, returned a verdict for the plaintiff for $1,272.73. On October 10th, on motion, the time to file reasons for a new trial, etc., was extended; and on October 17th, a motion and reasons in arrest of judgment and for a new trial were filed.</p> <p>On January 3, 1888, a rule for judgment on the reserved question, non obstante veredicto, having been argued, the court, Pershing, P. J., filed the following opinion :</p> <p>This is an action to recover damages for injury done to the real estate of Barbara Freiler by the defendants, during the time it was occupied by them as her tenants. Nothing in the preecipe or declaration disclosed the relationship existing between Daniel Freiler, as a defendant, and Barbara Freiler. The undisputed evidence on the trial was, that at the time of the bringing- of this suit they were living together, and continued to live together as husband and wife. Daniel Freiler, therefore, occupies the anomalous position of being both a plaintiff and a defendant in an action brought by his wife to recover unliquidated damages from himself and his partner in business. On this state of facts, the court was requested to instruct the jury that “ this action cannot be maintained, and the verdict must be for the defendants.” The court reserved the question of law thus raised, to be disposed of on a rule for judgment non obstante veredicto, should the verdict of the jury be in favor of the plaintiffs.</p> <p>This is a very different case from that class of cases, of which Rose v. Latshaw, 90 Pa. 238, stands on the verge, and in which it has been held that a husband honestly indebted to his wife may, without the intervention of a trustee, confess a judgment in her favor and suffer an execution to issue thereon. The proceeding in the present case has been adversary throughout. Daniel Freiler was brought into court by a summons, and on the trial was called by his wife as a witness under the act of 1869, as for cross-examination. Xo statute authorizes this suit, nor can I find a case which has gone to the extreme length necessary to sustain it. In § 3, act of April 11, 1856, P. L. 315, which is a supplement to the married woman’s act of 1848, and which gives to a married woman a separate action to protect her reputation or recover her separate earnings and property in three cases, viz.: where her husband deserts or separates himself from her, when he neglects or refuses to support her, and when she has been divorced from bed and board, there is a proviso that if in either case her husband is the defendant, her suit must be brought in the name of a next friend. That this statute can have no application to the case in hand will be seen by a reference to some of the decisions of the Supreme Court. Thus, in Ritter v. Ritter, 31 Pa. 396, it was held that a married woman, even by her next friend, could not maintain an action of debt against her husband on a note given for money borrowed from her during coverture; that such an action was not authorized by the act of April 11,1848, or any of its supplements. Kutz’s App., 40 Pa. 90, wras the case where a married woman lent her money to a firm, one of the members of which was her husband, and received their note for the amount. The firm made an assignment and the wife was permitted to participate in the distribution of the assets. Justice Stbong, said: “ It is clear that at law the appellant (the wife), could have maintained no suit against the promisors in the note. Ever since the act of 1848, a married woman cannot maintain an action against her husband on a contract made during coverture, even though she sues by her next friend,” citing Ritter v. Ritter, supra. In Miller v. Miller, 44 Pa. 170, the wife, in the name of her next friend, brought an action of covenant against her husband 'to recover damages for permitting waste and destruction of her real estate. Notwithstanding the contract was an ante-nuptial one, “ of course valid and binding between the parties,” said the court, and the further fact that her husband had separated himself from her prior to the suit, it was held that she could not recover. It was also expressly decided in that case that an action for unliquidated damages merely, for breach of covenant, is not an action for the recovery of property within the meaning of the act of 1848, or of ihe act of April 11, 1856. “ It could scarcely be pretended,” said Judge Pearson, whose opinion was adopted by the Supreme Court, “that she (the wife), could recover damages from her husband on account of a battery of her person, under the provisions of this act, or that she could sue him for stoning her house, or diverting a water course on her farm. The legislature has undertaken to enumerate the cases in which she may sue, and all others are omitted.”</p> <p>Subsequent decisions have not shaken these cases, and they are decisive of the question before us. Public policy, which is said to be but another name for thé public good, the foundation of all law, has ever been invoked against litigation between husband and wife. . To the extent that statute law authorizes such litigation, it must be obeyed, but beyond that we are unwilling to go. .</p> <p>A motion for a new trial is also pending, which will not now be disposed of.</p> <p>And now, January 3, 1888, it is directed that judgment be entered for the defendants non obstante veredicto.</p> <p>Judgment having been entered as directed, the plaintiffs took this writ, assigning as error the order entering judgment for the defendants non obstante veredicto.</p>

<p>1. The act of August 1, 1868, P. L. 1168, relative to mechanics’ liens in Philadelphia, is amendatory, in respect of such claims in that city, of the general act of June 16, 1836, P. L. 696, and creates two kinds or classes thereof, differing materially in their extent and qualities.</p> <p>2. Wherefore,- a claim filed for a mechanics’ lien for labor etc. furnished in the erection of an addition to an existing building in said city, is governed by the provisions of the act of August 1, 1868, and if filed after the property is conveyed to a purchaser, no lien is acquired thereby.</p> <p>3. The fact that the general act of 1836 has been held to include claims for new additions to existing buildings: Lightfoot v. Krug, 35 Pa. 348; Pretz’s App., 35 Pa. 349; Harman v. Cummings, 43 Pa. 322 ; Parrish's App., 83 Pa. 111; Long v. McLanahan, 103 Pa. 537, does not interfere with the conclusion that as to the city of Philadelphia, all repairs, ' alterations and additions are by the act of 1868 placed upon the same • footing.*</p>

<p>ERROR TO THE COURT OE COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.</p> <p>No. 235 January Term 1889, Sup. Ct.; court below, No. 138 March Term 1888, C. P. No. 3.</p> <p>On October 15, 1888, in an action by the American Oil Works, Limited, against the Pennsylvania Railroad Company, the following case was stated for the judgment of the court, with the right to each party to sue out a writ of error thereto:</p> <p>The plaintiff is an owner and vendor of oil at Titusville, Pa., and for some time prior to J amiary 1,1888, had sold and delivered to the Philadelphia Rubric Company, a refiner of oil, large quantities of oil, which were delivered to the defendant in cars. These were shipped by the plaintiff and carried by the defendant, under bills of lading containing, inter alia, the following condition and agreement:</p> <p>“ 1. The owner or consignee shall pay freight and charges thereon at specified rates at time of delivery as the same from time to time arrives. Said merchandise may be retained for all arrearages of freight and charges due thereon and also on any other goods by the same consignee or owner; and such arrearages and the freight and charges on said goods and merchandise shall be a lien thereon until the same shall have been paid.”</p> <p>On January 4, 1888, there was shipped and delivered by the plaintiff to the defendant ninety-two barrels of oil in car No. 1195; on January 10, 1888, two hundred and one barrels in cars 1284 and 810; and on January 13, 1888, ninety barrels in car 1125. The value of the said oil was $1026.79, and the . amount due for freight and charges thereon was $197.35. All of said shipments were made and received under the bills of lading containing the aforesaid condition and agreement. On January 23, 1888, before the actual delivery in fact to the con-. signee, the plaintiff exercised its right to stop said oil in transit, on account of the insolvency of the consignee, the Philadelphia Lubric Company.</p> <p>On January 1, 1888, the Philadelphia Lubric Company, the consignee, was indebted to the„ railroad company, defendant, upon a running.book account for freight and charges due upon merchandise theretofore consigned by various parties, in addition to the plaintiff, under the terms of the aforesaid bill of lading, and which merchandise had been delivered to the consignee by the railroad company without exacting the payment of the freight and charges due thereon, and without the knowledge of the plaintiff in this case.</p> <p>Prior to January 1st, 1888, the plaintiff had made three shipments of oil to the same consignee, which had been delivered and on which the freight and charges were unpaid. The indebtedness on these three shipments was $114.30, and the indebtedness on the shipments from others was greater than the value of the oil which is the subject of this suit.</p> <p>When the plaintiff demanded the oil in suit, the defendant claimed that the sum of $197.35, due on the shipments of January 4th, 10th, and 13th, now in suit, as well as all the above-mentioned indebtedness, to an amount greater than the value-of tlie oil, was a lien thereon, and under this claim retained the oil. The plaintiff averred a willingness to pay the sum due upon the shipments in suit and made tender thereof.</p> <p>If the court shall be of opinion that the defendant has a lien for the sum of the total indebtedness, then a judgment to be entered in its favor; if it shall be of opinion that the defendant has a lien only for the freight charges due on the three shipments of oil which are the subject of this suit, then a judgment to be entered in favor of the plaintiff for the sum of $829.44, with interest from February 4, 1888, the date of the institution of this suit; and if it shall be of opinion that the defendant has a lien for the freight and charges due upon the three shipments made prior to January 1, 1888, as well as upon those In suit, then a judgment to be entered in favor of the plaintiff for the sum of $715.44, with interest from February 4, 1888.</p> <p>The cause having been argued, the court, Fínletteii, P. J., on December 22, 1888, filed the opinion and judgment following:</p> <p>If it be conceded that a common carrier can affect the shipper with special contracts, by simply printing them upon the bills of lading, it cannot well be questioned that such contracts are to a certain sense compulsory. The shipper is not in a condition to dispute the terms; to do so would result in delay and perhaps litigation. In this event, ordinary trade and commerce would suffer. The least that ought to be done, under such an involuntary contract, would be to give the consignor upon whom it is imposed the benefit of a most liberal construction, and hold the common carrier to the converse.</p> <p>The contract in this case is as follows : “ The owner or consignee shall pay freight and charges thereon, etc......Said merchandise may be retained for all arrearages of freight and charges due thereon, and also on any other goods by the same consignee or owner; and such arrearages and the freight and charges on said goods and merchandise shall be a lien thereon until the same shall have been paid.” The words, “ the same consignee or owner ” should, under this contract, be considered as meaning simply the owner. In ordinary business the consignee is the owner, and the shipper under such eireumstances assumes no responsibility. If any other construction be given to these words, the owner would become responsible for the debts of one to whom he had consigned the goods on commission or for storage. If the railroad company intended this contract to reach such special cases, they should have set them forth specifically, so that the responsibility of the owner might be apparent.</p> <p>If this construction be erroneous, still, to make the goods liable, there must be the relation of owner or consignee, to connect them with the antecedent freights. If there be no consignee of the shipment, it is chargeable only for freights due by the owner, who may be the shipper, or any other person who has the right to receive them. In the present case, the goods Vere stopped in transit by the consignor, who then became the owner, the contract of sale being thereby rescinded. The purchaser no longer had any rights in or over the goods, and ceased to be the consignee. The shipment then became liable only for the debts of the owner.</p> <p>There is, however, a broader view to take of this contract. From the earliest times, common carriers have had special privileges and responsibilities. They facilitate the intercourse of social life, and have become necessities of trade and commerce. They are servants of the public, and their duties are of a public nature. They are compelled to carry every one, and for every one, and to do so without distinction on account of person, or in price. They have the right to exact'reasonable compensation, and make reasonable rules for themselves and those who deal with them. As they have a lien upon the goods carried for the freight, it would be an unreasonable privilege to give them also a lien upon such goods, for the debts of a party over whom the owner had no control. They would thus have an advantage which no one else could have, and that in itself would be unreasonable. Contracts of this character restrict the free intercourse of the people, and fetter business generally. There can be no reason or justice in making those who are compelled to do business with common carriers, insurers of their bad debts, and such is simply the effect of the contract in this case.</p> <p>These views are in accord with the authorities. “ A common carrier is bound to carry goods for a reasonable compensation. To permit liim to retain the consignor’s goods for the debt of another is in derogation of this rule, and such a right has never been - recognized by the courts of justice.” When the carrier received goods under the following condition : “All goods, from whomsoever received or to whomsoever belonging, shall be subject to a lion, not only for the freight of the particular goods, but also for any general balance that may be due from the person to whom they were consigned,” it was held that this clause was inoperative against the consignor, as he owed the carrier nothing, and his right of stoppage in transitu was superior to the carrier’s lien.</p> <p>As common carriers have become more powerful and more necessary, they have sought in every way to evade the wise restrictions of the law. Hence they have introduced compulsory contracts on bills of lading and passenger tickets, rebates and discriminations, by which they have injuriously interfered with business of all kinds. Such efforts have always been rebuked by the courts.</p> <p>The contract in this case is inoperative, and judgment is entered for the plaintiff for $829.44.</p> <p>Judgment having been entered in favor of the plaintiff for $829.44. the defendant took this writ, specifying that the court erred in not entering judgment for the defendant on the case stated, and in entering judgment for the plaintiff.</p>

<p>(a) Jenson employed Perry to sell proprietary tablets under a written contract to continue for many years, with the provision that “ said Jensen agrees to furnish said Perry with sufficient samples of said article, and printed matter in the nature! of advertisements relating thereto, as the same! may be called for by him, said Perry.”</p> <p>I. Under said contraed the employer was not bound to submit to an unreasonable and unconscionable demand for samples, and what was a reasonable quantity, if tbe parties could not agree about if, was a question of fact for tin! jury and not to be determined at the will of the agent alone.</p>

<p>FROM THE DECREE OF THE ORPHANS’ CODRT OF BLAIR COUNTY.</p> <p>' The purchaser of a non-negotiable instrument, such as a mortgage, is bound to make inquiry of the maker or mortgagor before purchasing, and is chargeable with notice of any defence by way of payment, or growing out of the equities of the parties to the instrument, which inquiry would have brought to Ms notice.</p> <p>No. 89 July Term 1888, Sup. Ct.; court below, No. and Term not given.</p> <p>On November 23, 1885, J. Levan Metzgar presented his petition setting forth in substance that in pursuance of a decroo of the Orphans’ Court made on July 23, 1874, Amelia S. Morgan, administratrix of George P. Morgan, deceased, had executed and delivered to Edmund Mountney a mortgage on certain real estate of said deceased for the sum of $4,598.38, conditioned for the payment of $2,229.19, on July 23, 1875, which said mortgage had been assigned to the petitioner on December 14, 1874 ; that said administratrix had not paid to the petitioner the amount of said mortgage debt, nor any part thereof; that no return was ever made by the said administratrix to the Orphans’ Court upon the order to mortgage said real estate, and the said mortgage had not been approved or confirmed by said court; the petitioner praying that the said court would approve and confirm the said mortgage.</p> <p>To the rule granted upon the foregoing petition, Amelia S. Morgan, administratrix, and Nannie B. Morgan, minor child of said deceased, by her guardian, John Hurd, made answer, alleging that said mortgage had been obtained by the fraud of Edmund Mountney, the mortgagee, some of the averments of the answer being as follows :</p> <p>“ Edmund Mountney was by trade a painter and for a period of nine years prior to the death of George P. Morgan was on terms of intimate friendship with him, and during all that time made his home at the house of said Morgan as a boarder, and was indebted to him for his boarding, and being so indebted, urged and entreated the said George P. Morgan to permit him to build at the actual cost thereof a house upon his lot, the lot of George P. Morgan described in the petition, and that thus he would be able to pay him what he owed him for his hoarding. The said Mountney represented that one John Geesey was indebted to him in a large sum of money: that he was a contractor and builder and that he could the more easily obtain payment of his debt by employing said Geesey to build the said house. George P. Morgan consented and the house was built by said Mountney, or by said Geesey, his debtor, for him, and although the building was not entirely completed at the death of George P. Morgan, yet soon after his death, and whilst it was still not completed, the respondents, Amelia S. Morgan and Nannie B. Morgan, entered into possession thereof, in the month of February, 1874, and the said Mountney, continuing to make his home in the family after the death of George P. Morgan, as a boarder, removed to the said house with them, where still thereafter he continued to board with them until the fall of 1879.</p> <p>“ There never had been a settlement between her husband and Mountney of his boarding, nor was there any such settlement at the date of the pretended mortgage mentioned in the petition, either of the boarding of Mountney before or after the death of George P. Morgan, nor was there at any time any settlement' or attempted settlement for the building of the house ; but in April, 1874, Mountney assured her that there was not much due to him for the building of the house and she need not be concerned about it, as he would agree to continue to board with her as formerly, and that whatever balance was due him should be paid in that way. It was accordingly agreed between them that he should continue to board with her in satisfaction of whatever balance might be due, at the rate of twenty dollars per month for boarding, two dollars per month for washing and a reasonable allowance for mending his clothes, and on these terms he continued to board with her and she continued to wash his clothes and mend them, and so furnished and labored for him for the benefit of her daughter, Nannie B. Morgan, that she might have a home free of all debt.”</p> <p>The answer then proceeded to aver that the said administratrix had been induced by the said Mountney to make the application to the court for leave to execute the mortgage ; that he had employed counsel and the petition and other papers had been prepared under his direction, and were based upon statements of fact furnished by him which were untrue.</p> <p>Testimony having been taken and filed, the court, Deak, P. -I.. February 1,1888, filed an opinion, which was as follows:</p> <p>On April 27, 1874, Amelia S. Morgan, administratrix of George P. Morgan, late of Altoona, deceased, presented her petition in this court, setting forth that the personal estate of the decedent was insufficient for the payment of his debts, and praying for an order authorizing her to mortgage certain real estate in the city of Altoona for the purpose of raising money to discharge the indebtedness. On the same day the court ordered a decree on her petition, authorizing her to mortgage the real estate described therein, on such terms as she might deem expedient for payment of decedent’s debts. She at that date averred an indebtedness on part of the decedent to Ed. Mountney in $2,299.19, which was about the only indebtedness of her intestate, so far as appears from her petition.</p> <p>On July 28, 1874, she executed a mortgage to Mountney to secure payment of this debt, and Mountney, on December 14, 1874, assigned the mortgage to J. Levan Metzgar. Default having been made in payment, on September 4, 1876, a scire facias was directed to issue, but the administratrix appeared by attorney and waived the issuing and service of writ. On December 27, 1876, the defendant pleaded “ never indebted and payment,” etc. The case was referred to arbitrators under the compulsory arbitration act, and an award had in favor of plaintiff for $2,440.16. The award was not appealed from within 20 days and became a judgment.</p> <p>On January 27, 1879, the administratrix, who executed the mortgage and made defence to the scire facias, petitioned the court for an order to sell the mortgaged premises for payment of the mortgaged debt. Before sale was had, however, on March 24, 1879, on petition and affidavit filed, she moved in the Court of Common Pleas to strike off the judgment entered on the award of arbitrators. The court awarded a rule to show cause. On August 28, 1879, the guardian of Nannie B. Morgan, a minor child of decedent, presented his petition and affidavit, praying to be made a party defendant to the judgment, and he was given leave to interplead. After full hearing and argument on this rule, the court, on August 25, 1880, in opinion filed, discharged it.</p> <p>Then, on January 15, 1881, the administratrix and guardian filed a bill in equity, setting out the same matters of complaint as averred in the petition and affidavit for the rule to show-cause, and praying: (1) That the mortgage be declared null and void, and that it be delivered up for cancellation. (2) That Mountney and his assignee, Metzgar, be restrained by injunction from proceeding to collect it. Preliminary injunction was awarded, and on a motion to continue the same after argument, the court dissolved the injunction and dismissed the bill. From this decree the administratrix and guardian, on May 19, 1883, took an appeal to the Supreme Co.urt. At May Term 1885, the decree of the Common Pleas dismissing the bill was reversed.*</p> <p>The objection to the execution of the judgment most strongly urged on the hearing of the rule to show cause, and on the motion to continue the preliminary injunction, was, that the mortgage on which the judgment was founded, was invalid because it had not been approved and confirmed by the Orphans’ Court, which granted the order to mortgage. The Supreme Court sustained this objection so far as Nannie B. Morgan, the minor child, was concerned, and in their opinion in effect decide : (1) That Nannie B. Morgan not having been heard on a motion to approve and confirm the mortgage, a court of equity should hear her on such motion, and if her objections are sustained by proper proof, should interfere to protect her estate from execution on a judgment obtained on the mortgage. (2) That there is nothing in the way of an application by the mortgagee to the Orphans’ Court for an approval and confirmation of the mortgage, after notice to all parties interested, and that after hearing on such motion, an adjustment of the equities of the parties could be had. Then comes this motion to approve and confirm the mortgage.</p> <p>All parties have been fully heard by deposition and argument of counsel. It is alleged that the amount of money specified in the mortgage as having been loaned to the administratrix by Ed. Mountney, is considerably larger than she received. Under the evidence she must be treated as having received whatever amount the estate of her husband was indebted to Mountney. She, in her petition for the order to mortgage, and in the mortgage, distinctly says this amount was $2,299.19.</p> <p>We are satisfied from the evidence adduced that the decedent on a just settlement did not owe this sum. Mountney boarded with George P. Morgan several years before his death; he built a house for Morgan, for which he was to be paid just what it cost him ; this cost, according to Mountney’s own statement, was $2,808.85. Wliat amount ought to have been credited to Morgan for boarding ? The minor child alleges a large amount, covering nearly the amount of Mountney’s charge for the building, was due and owing. Mountney admits something was owing, but alleges the amount was comparatively small. The testimony on this point is far from definite. From Mountney’s own statement the board bill was not taken into account when the amount due to him from the estate was determined on. Very clearly it ought to have been; as it was not, the amount must be ascertained as nearly as possible and allowed now. All the testimony shows that $20 per month in view of the circumstances would be a reasonable rate of payment.</p> <p>X X X X X X X X</p> <p>He [Mountney] did not then deny that at the time the house was built he owed a considerable sum, and that the boarding debt was created on the understanding that it was to be discharged by building the house. We do not believe that it was as large as the cost of the house, but it is not unreasonable that it should have equalled three years’ boarding. Mountney admits he was there three years before Morgan’s death. In his testimony first given, where it was alleged in the testimony of Mrs. Morgan that he had not paid, and payment was not exacted because of his promise to build the house, which he did build, he does not contradict her nor attempt to offer any evidence of payment of any part of the board bill.</p> <p>X X X X X X X X</p> <p>We are of opinion that George P. Morgan at the date of his death owed to Ed. Mountney for building his house.........................$2,299 19</p> <p>That Ed. Mountney was indebted to George P. Morgan for 36 months’ board at the rate of $20 per month...................................720 00</p> <p>Leaving a balance of........................ .$1,579 19</p> <p>due from the estate of George P. Morgan to said Mountney; that this, by a reasonable construction, should, from the nature of the transaction, be considered as loaned under the order of the court, by Mountney to the administratrix, for payment of debts of dectedent, and that said decedent’s estate to that amount was benefited thereby.</p> <p>Therefore, the said mortgage so made by said administratrix to said Mountney, dated July 23,1874, and recordéd same day, is approved and confirmed in the sum of $1,579.19, only, payable as stipulated in said mortgage. This decree to date as if made on the first day of the sitting of the Orphans’ Court at October Term 1874.1</p> <p>Thereupon Amelia S. Morgan, as administratrix, etc., and Nannie B. Morgan, by her guardian, took this appeal, specifying in substance that the court erred in entering said decree,1 in limiting the deduction from the mortgage. to three years boarding of the mortgagee, and in sustaining the mortgage at all under the facts and circumstances in evidence.</p>

No. 301 January Term 1886, Sup. Ct.; court below, No. 262 November Term 1881, C. P. On October 18,1881, John M. Crosland brought ease… Held: however, in a controversy very similar to this, Elliott v. Philadelphia, 75 Pa. 347, for the alleged unlawful act of its public officer in making an arrest in connection with the running off of a horse, that where a city only authorizes a lawful act, to be done in a lawful manner, it is not responsible for the acts of its officers…

No. 149 July Term 1887, Sup. Ct.; court below, No. 12 December Term 1886, Fi. Fa. sur judgment No. 34 December Term 1886, C. P. Two judgments had been entered against Thomas Miller; one in favor of D. H. Wilson & Co. at No. 131 May Term 1884, and the other in favor of the Stroudsburg Bank, at No. 34 December Term 1884. On October 2, 1886, a writ of fieri facias issued upon the judgment of D. H. Wilson & Co. and was placed in the sheriff’s hands.

No. 22 January Term 1889, Sup. Ct.; court below, No. 18 April Term 1888, Q. S. On February 15, 1888, the grand jury made a presentment that one Lizzie Green on February 13, 1888, and on divers other days, etc., in the borough of South Bethlehem in the county of Northampton, did keep and maintain a common bawdy house and place for the practice of fornication, to the common nuisance, etc. On the same day, on leave granted by the court, the district attorney laid before the…

<p>1. The money derived from a sale of land in partition proceedings is never real estate, any more in law than in fa,ct, but for a certain purpose and within a certain limit it is to be treated as real estate: that purpose is to preserve the quality of the estate so that it will vest in the persons who would have been entitled to it, had it remained unconverted, and the limit is the first transmission.</p> <p>(a) The owner of land died intestate leaving a widow and children. The land was sold in partition proceedings, and one third of the proceeds charged for the protection of the widow’s dower. A daughter married, gave birth to a son and died. The son died unmarried and without issue, and subsequently the son’s father died, the widow of the intestate then still living. The widow afterwards died, when the dower fund was distributable.</p> <p>2. In such case, the daughter’s share of the proceeds vested in her as real estate when the land was sold, in possession as to part and in remainder as to the balance after the widow’s life interest, and, the purpose of the rule being then accomplished, the share resumed its character as personal estate, and as such passed to her son, through •him to the son’s father and then to the father’s personal representative.</p>

<p>ERE0R T0 THE COURT OF COMMON PLEAS NO. 8 OF PHILADELPHIA COUNTY.</p> <p>No. 132 January Term 1889, Sup. Ct.; court below, No. 148 March Term 1887, C. P. No. 3.</p> <p>On February 28, 1887, Bernard Gunn .brought assumpsit against Holdsworth W. Bowers, to recover a balance due for bricks sold and delivered.. Issue.</p> <p>On December 1,1887, the parties filed an agreement: “that the above case, and all matters in controversy thereunder, be referred to William Grew, Esq., as arbitrator under the act of assembly approved the sixteenth day of June, 1836; and it is further agreed that the said arbitrator shall have the right to decide upon both questions of law and fact, subject, however, to the right of appeal, exception, etc., as provided by the said act as to matters of fact. This agreement is hereby made a rule of court.”</p> <p>On June 9,1888, the referee filed a report, awarding in favor of plaintiff the sum of $287.77, with interest from October 1, 1886. On June 14th, the defendant filed exceptions to the referee’s report, which exceptions on September 22,1888, were dismissed by the court, and judgment entered on the award.</p> <p>On September 26, 1888, the exceptions were reinstated and re-argument on them ordered. On October 13th, the exceptions were sustained, and judgment entered in favor of the defendant for $129.91.</p> <p>On October 31, 1888, the plaintiff filed an application for a re-hearing upon the exceptions to the referee’s report. On November 10th, a re-argument was refused.*</p> <p>On November 26,1888, the plaintiff took this writ assigning as error the order of October 13, 1888, entering judgment “ in favor of the defendant and against the plaintiff for $112.96, with interest from October 1, 1886, to wit, $16.95; total, $129.91.” †</p> <p>Subsequently, on December 7, 1888, the court made'the following order:</p> <p>“And now, December 7, 1888, it appearing that the decree entered on the 13th day. of October, A. i). 1888, after argument of the exceptions filed to the award of the referee, ordering judgment to be entered in favor of defendant and against plaintiff in the sum of $129.91, was improvidently entered, as to the form of the finding of the court, it is now ordered that said judgment be stricken off; and it is further ordered and decreed that the second exception of defendant to said award is sustained, it plainly appearing to the court that defendant has overpaid said plaintiff to the amount of $112.96, and the said award is directed to be returned to said William Grew, arbitrator, for amendment and correction in accordance herewith.”</p>

<p>1. The plaintiff, a passenger upon a cable ear, got out on the north side where he was in safety. Without waiting for the car to move on, or looking to the west from which direction danger was to be apprehended, he turned sharply around the rear of the ear, and started to cross the street. There was room between the tracks for him to stand in safety, and see the whole track. Instead of looking, he stepped upon the south track, and was struck and injured by another ear going east. Ke was properly nonsuited upon the ground of contributory negligence.</p> <p>2. Due and ordinary care is to be exercised in crossing public streets, as in all other transactions of life. Even upon the sidewalk, specially devoted to foot passengers, a man is bound to look where he is going, and this duty is still more imperative when he is about to cross the middle of the street where horses, wagons, and cars have equal rights with himself, and where he is bound to take notice of such other rights, and to use his own with due regard thereto ; Schmidt v. McGill, 120 Pa. 112.</p>

<p>1. The canon of construction in will cases, that where there is -a devise for life with remainder over to survivors, the word, survivors, shall be taken to refer to the period of the testator’s death, will not be applied to overrule the plain, actual intent of the testator to refer it to another period.</p> <p>(a) A testator directed a trustee to pay the income of a share to each of his daughters for life, “ and from and immediately after the decease of my said daughters respectively, and as that event happens, I give and bequeath the estate and property of the daughters dying, which shall then be held by the said trustee under this my will, to be equally divided among the surviving brothers and sisters, and the. lawful issue".of such as may be dead (if any) ; . . . . provided, however, that if my said daughters, or either of'them, should die leaving lawful issue, the share o£ such daughter, so dying, shall go to and be equally divided among such issue, and the lawful issue oí such as may be dead.”</p> <p>■>. The principal objects oí the testator’s bounty were his daughters and their issue, and the time he had in mind when their shares should possibly go to any one else, was the death of the daughters, and it was with reference to that time that he designated the surviving brothers and sisters as the ultimate devisees.</p> <p>3. It is often said, “ The question in expounding a will is not what the testator meant, but what is the meaning oí his words; ” yet by this it was never intended to say that a testator’s meaning when apparent can be disregarded, but, that it cannot be got at aliunde by what he might have meant: the search is confined to his language, but the object is still his meaning: per Mr. Justice Mitoiieijl.</p>

<p>1. Whether ór not the l'oot-fronl rule of assessment for the cost of paving and curbing a street, is legally applicable to an abutting property, •within city limits, but claimed to be rural in character, depends upon the conditions existing at the time when the improvement is made, not at the time when the ordinance authorizing it is enacted.</p> <p>2. Wherefore, on the trial of a scire facias to recover assessments for an improvement made in 1878, the record oí a judgment for the defendant in a like 'action by the same plaintiff, brought to recover assessments against a portion of the same property for an improvement made in 1874, wherein the same issue was raised, is inadmissible, either as evidence for the jury, or as a conclusive bar.</p>

No. 428 January Term 1889, Sup. Ct.; court below, No. 622 October Term 1885, C. P. On August 22, 1885, Frederick Benham Myers, and William Penn Myers brought ejectment against the Kingston Coal Company to recover interests in certain coal lands.

<p>1. The general provisions of the' license act of May 13, 1887, P. L. 108, are designed to regulate the sale of liquors by the various classes of venders known to the law, not to interfere with the use of liquors by the individual citizen, or with his right to furnish them to his family, or to his guests.</p> <p>2. But the provisions of § 17 of the act, prohibiting the furnishing of liquors by sale, gift, or otherwise, on election day, on Sunday, to one of known intemperate habits, or to one visibly affected by intoxicating drink, are not confined to dealers, but are directed against “ any person, with or without license.”</p> <p>(a) On the trial of an indictment charging the defendant with having furnished liquors to persons at the time visibly affected by intoxicating drink, the commonwealth offered evidence of the offence committed on various days in 1887 and 1888, among which were several Sundays in 1888.</p> <p>(b) The defendant objected and pleaded specially the record of his trial and acquittal upon another indictment for the offence of selling liquors on Sunday, covering the Sundays in 1888 as to which the same evidence had been offered as was offered on the trial of the indictment at bar.</p> <p>3. The evidence having been admitted, and the jury having found for the-commonwealth on the special plea, it was error not to instruct the jury on the general issue, (a) that the evidence submitted on the plea of former acquittal should not be considered as before them on the question of the guilt or innocence of the defendant, and (b) that the defendant ought not to be convicted upon the evidence of acts done on the several Sundays covered by the first indictment.</p>

<p>1. By the act of April 9, 1844, P. L. 280, the commissioners of roads and highways in Pine Grove township, Warren county, are clothed with the general charge and supervision of the township roads and bridges, and with the duty to lay out and alter roads, at the request in writing of the citizens, if the commissioners shall deem the same necessary.</p> <p>2. But an indictment does not lie against such commissioners for their refusal to lay out a road in obedience to the request in writing of a number of citizens of the township, even though the indictment allege that the commissioners deem the road necessary for the accommodation of the public.</p> <p>3. The commissioners have a discretion, as to the necessity for the road, and the fact that they refused to lay out and return the road, must be taken as conclusive of their official opinion that no necessity exists for their action.</p>

<p>In a civil action for damages, under § 8, act of May 8, 1854, P. L. 663, charging the defendant with having caused the death of plaintiff’s husband by unlawfully furnishing him with intoxicating liquors, if the jury find that the defendant furnished the deceased with liquors, while intoxicated, with knowledge that ho was a man of known intemperate habits, he is responsible for the resulting injury, even though others furnished him with liquors on the same occasion.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE MCKEAN COUNTY.</p> <p>No. 24 July Term 1888, Sup. Ct.; court below, No. 245 February Term 3885, C. P.</p> <p>On February 2, 1885, Thomas Downs brought an action in case against the city of Bradford, and on October 32, 1886, filed a narr setting out in substance that William J. Downs, his minor son, while passing over a sidewalk in the said city, by reason of defects therein, wrongfully and negligently permitted by the defendant, had stumbled and fallen, etc., “ by means whereof the said William J. Downs was greatly bruised, hurt and injured, and had the knee cap of his left leg crushed, bruised, fractured and broken, and in consequence of the grievances aforesaid the said William J. Downs suffered great pain, injury and inconvenience, and received an incurable and permanent injury, and the said plaintiff thereby lost the services of the said William J. Downs, his said minor son, and was put to great expense about the care and cure of the said William J. Downs, and for medical and surgical attendance, and for nursing and support of him : Wherefore,” etc.</p> <p>On December 15, 1887, the plaintiff, with leave of court, filed an amended narr which averred the same facts as the original, hut concluded as follows: “ by means whereof the said William J. Downs was greatly bruised, hurt and injured, and the knee cap and muscles of his left leg crushed, braised, strained, fractured and broken, and in consequence of said injury suffered great pain and inconvenience for three years or more, and then in consequence of said injury died, and the said plaintiff thereby lost the service of the said William J. Downs, and was put to great expense about the care and attempted cure, and for medical and surgical attendance, and for the nursing and support and funeral expenses of him the said William J. Downs. Wherefore,” etc.</p> <p>At the trial on January 26, 1888, the defendant moved to strike off the amended declaration filed in the case, whereupon the court, Moukesor, J., made the following order : “ And now, January 26, 1888, the court sustains the defendant’s motion so far as to strike out of the amended declaration all averments as to funeral expenses, and discharges the rule to strike off the amended declaration subject to this qualification.” lixception.1</p> <p>Tbe facts appearing in evidence were substantially as follows :</p> <p>On September 3, 1881, William J. Downs, aged between 7 and 8 years, the son of the plaintiff, fell through a hole in a platform erected by the owner of a store building on the west side of Mechanic street, in the city of Bradford. Mechanic street had been ordained as a street, June 27,1881. A sidewalk had been built on the opposite side of the street prior to the accident, but on the west side of the street there was no other sidewalk than said platform, which was in a bad condition. The plaintiff admitted that he knew the platform was in a bad condition, and it did not appear that he had informed his son or forbidden his playing on or about the platform. The plaintiff also testified that at the time of the accident he was on the opposite side of Mechanic street, about 50 or 55 feet from his son; that he saw him go along on the platform and probably he went 4 or 5 feet after he saw him, before he fell. The fact of the injury and the nature thereof was proved, and that the child died on March 14, 1885, from the effects, as the plaintiff claimed and introduced testimony to show, of the injury. The defendant introduced testimony to show that with proper care and treatment the child would have recovered.</p> <p>The defendant called Mrs. Jane Herrmann, and made the following offer :</p> <p>The plaintiff having testified that he saw his son, at the time the injury was received, and how the injury was received, counsel for the defendant now offer to prove by the witness on the stand, in reply to that testimony, that the boy in his lifetime stated to the witness, in reply to á question by her as to how he received the injury to his knee, at a time when he was bathing, that the boy said in reply that he fell off from some boards and hit a spike with his knee. This in answer to the plaintiff and for the purpose of showing by the declaration of the party receiving the injury, on account of which a recovery is sought to be had in this case, how the injury occurred.</p> <p>Objected to, as incompetent and irrelevant.</p> <p>By the court: Objection sustained; exception.3</p> <p>The court, Mokkison, J., charged the jury, in part, as follows :</p> <p>We have been asked by counsel for the defendant to answer certain points to you in writing, which we will now proceed to do.</p> <p>Tbe court is requested to charge tbe jury:</p> <p>1. The uncontradieted evidence in the case showing that the defendant, prior to the accident, had never built or caused to be built a sidewalk over that portion of the street where the injury is alleged to have occurred, and the plaintiff having failed to show actual notice to the defendant of any dangerous obstruction in said street, or the existence of any such obstruction for so long a time as would imply notice of the same to the defendant, the plaintiff cannot recover in this action, and your verdict must be for the defendant.</p> <p>Answer: We refuse this point. The question of whether there was a dangerous place in the street for sufficient length of time to visit the defendant with constructive notice, is for the jury. Now you will bear in mind that the defendant cannot be held liable in this case, without notice of the dangerous place in the street, if it was in the public street, either actual or constructive. You understand readily what actual notice is. If any of the proper officials of the city had actual notice, then the city had notice. If this place was within the bounds of the street which had been adopted by the city, and over which they were exercising control, and there was a dangerous place there so long that they ought to have known it, by the care and diligence of the officers, that would be constructive notice. Hence we refuse this point, and leave it for you to gay whether there was a dangerous place there, and whether it was within a street, and whether it had been there so long that tbe city ought to have known it. We think there is no evidence of actual notice here, that we recollect, but that is for you, of a dangerous place at this point.3</p> <p>2. The city of Bradford, defendant, having provided a sidewalk of sufficient capacity to accommodate tbe travel along Mechanic street, upon tbe east side of tbe street, wliicb was tbe ordinary traveled side thereof, they were not compelled to construct a sidewalk upon the other side of said street, and the defendant is not liable for any injury sustained by the minor son of the plaintiff while running across a platform erected by private individuals on the west side of tbe street, although the platform did project for eighteen inches or two feet thereof into what would be tbe outside line of the street as established by ordinance, and your verdict should be for the defendant.</p> <p>Answer: W e affirm this point, if the jury find that no dangerous place existed within this street, as alleged by the plaintiff, or, if it did exist, that the defendant had no notice of the same.4</p> <p>4. If the jury believe that the child alleged to havé been injured was a bright, intelligent child, and knew or had the means of knowing of the alleged defect or obstruction in the street where the accident happened, and yet did not take such precaution to avoid the same as a reasonable person of his age would, then he was guilty of contributory negligence and there can be no recovery in this case, and your verdict should be for the defendant.</p> <p>Answer: Refused. We do not think contributory negligence can be imputed to this child, under the evidence in this case. He was not a trespasser at the time.5</p> <p>5. If the jury believe from the evidence that the plaintiff saw his child, alleged to have been injured, going toward a dangerous part of the street, and at the time knew of the unsafe condition of said street and did not check said child or make any effort so to do, then he is guilty of contributory negligence and your verdict should be for the defendant.</p> <p>Answer: Affirmed.</p> <p>8. If the jury believe the child alleged to have been injured did not have such care, attention and medical treatment as a prudent person would bestow upon a child so injured, then the plaintiff is guilty of negligence and your verdict must be for the defendant.</p> <p>Answer: Answered in the negative. The facts assumed in this point will not entirely defeat a recovery, but may properly reduce the amount thereof. This is for the jury to determine.6</p> <p>The first important point, as we view it, for you to determine, is, was this a street of Bradford, a public street, and was there a dangerous obstruction in it? [As we view the evidence there was not a sidewalk constructed and managed there by the defendant; but, if there was a dangerous place in this platform, or whether it was by the Cross building where the accident is alleged, to have occurred, that had existed there so long after the city had adopted this street and taken charge of it that they ought to have known it, then it was the duty of the city to have removed it or to have fixed it so that it would be safe. So that it is not material whether it was a sidewalk or not, under the evidence in this ease, if it was an obstruction or a dangerous place in the street, and had existed so long that the city ought to have known it, if they had been looking about and using care; then the city wtiuld be liable whether in fact the corporate officers knew of this place or not.] 8 Hence you see it becomes important for you to determine whether this was within the line of the street, and whether a dangerous place existed there, and whether the boy received the injury there in the manner described, and you should consider all tlxe evidence on this point, and determine whether that was the injury that caused the trouble with the boy’s knee, and which caused all this nursing and.expense and injury to the hoy.</p> <p>The ordinance was adopted in June, 1881, and there doesn’t seem to he any question, as we recollect the evidence, but that is for you, that the city had charge of that street from that on, and there is some evidence that we admitted, under objection, that they bad performed some work on the street before that. We hardly think that there is enough evidence to warrant the jury in finding that that was a public street without the ordinance, prior to the adoption of the ordinance, but the ordinance was adopted, and [it seems to be uncontradicted, as we recollect the evidence, that they took charge of this street in June, 1881, and the accident did not happen till the September following. Would not this be time enough in a place like the city of Bradford for the city officers, if they had been doing tbeir duty, to have discovered the dangerous place, if there was one there, and remedied it ? Had they constructive notice; did a dangerous place exist there so long that it was their business to know it? If it did, you treat it as though they did know it and had actual notice.] 9</p> <p>[Now in this connection you will take into consideration the knowledge that this plaintiff had of this, because, as we have already intimated, if the plaintiff knew of this dangerous place, if it did exist there,] 10 and knew tbat bis minor child was playing and running over there and did not restrain or attempt to restrain him, he cannot recover in this action for the injury to his child which was caused in part by his neglect to do his duty. The principle is that a man cannot recover where injury is caused by his own wrong or neglect, even in part.</p> <p>[Now we recall to your attention the evidence of Mr. Downs upon the point of how the child was injured. He says that he saw him walking very fast.] 11 There was some attempt to show that he testified at another time that he was running; that he got on this platform and went through a hole six inches wide and eighteen inches or two feet long, and that his mother picked him up, and you have her testimony also. [Now did Mr. Downs know there was a dangerous place in that walk? Did he know as much about it as the city officers knew or ought to have known ? If he did, and there was a place there that was dangerous and he knew it, and he did not restrain his infant child of tender years — so young that we have instructed you that you should not impute negligence to the child — if he did not restrain him or keep him away from there, or attempt to, then we say under the law that he is guilty of contributory negligence, but if he did not know it was dangerous the law would be otherwise. We submit that question to you.]18</p> <p>* * $ ■% $ * *</p> <p>The jury returned a verdict in favor of the plaintiff foi $1,342. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this writ, assigning as error :</p> <p>1. The refusal of the defendant’s motion.1</p> <p>2. The refusal of the defendant’s offer.8</p> <p>3-6. The answers to the defendant’s points.3 10 6</p> <p>8-12. The portions of the charge included in [ ] 8 t0 18</p>

<p>1. In an action against the makers of certain notes, the plea being nonassumpsit, the plaintiff’s testimony tended to establish that the names of the makers wei-e placed to the notes by their business manager, by whom tlie notes were delivered to plaintiffs for a consideration passing to the makers. The defendants denying the plaintiff’s case, the sole question, whether of authority or ratification, was one of fact which was properly submitted to the jury.</p>

No. 127 July Term 1888, Sup. Ct.; court below, No. 82 January Term 1886, C. P. On December 4, 1885, George D. Messenger, Jr., brought case against Samson Short, to recover damages for cutting and converting timber. Issue.

No. 135 July Term 1888, Sup. Ct.; court below, No. 14 December Term 1886, C. P. On September 13, 1886, an action of ejectment was brought by George W. Irvine against C. L. Douglas, to recover one half acre of ground in Pine Grove township. Issue.