Volume 127 — Pennsylvania State Reports

<p>ERROR TO THE COURT OF COMMON PLEAS OF WARREN COUNTY.</p> <p>No. 12 July Term 1889, Sup. Ct.; court below, No. 45 December Term 1884, C. P.</p> <p>On September 24, 1884, George C. Hamilton brought ■ assumpsit against the Clarion, Mahoning & Pittsburgh Railroad Company, and on October 2d filed a narr with a copy of an account against the defendant company, amounting to $4,025.90.</p> <p>A Rule of Court provided that, “ if the plaintiff shall have filed a copy of the account or instrument of writing on which the suit is founded, with his declaration, on or before the return day of the writ, he shall be entitled to a judgment by default for the amount so claimed, at any time after twenty days from and after the return day of the writ,” in default of an affidavit of defence filed by the defendant. Under this rule, on November 6, 1884, a judgment was taken against the defendant for want of an affidavit of defence, and the sum doe liquidated at $4,025.90.</p> <p>A writ of fieri facias was issued on the foregoing judgment the day it was entered, and returned, no goods. In March, 1887, a creditor’s bill was filed by George C. Hamilton and others against the defendant company and certain individuals, named as stockholders thereof, to enforce payment of stock assessments in discharge of the company’s indebtedness to the several complainants. This bill was duly-served, and embraced, in the indebtedness of the company set out, the judgment of the plaintiff in this case.</p> <p>On November 12, 1888, the defendant company filed a petition and motion praying that the plaintiff’s judgment entered November 6, 1884, should be stricken off, for the reason that the account filed was not of such character that an affidavit of defence was required to prevent judgment.</p> <p>On December 13, 1888, the court, Brown, P. J., discharged the rule granted upon the foregoing motion, saying inter alia:</p> <p>While we are inclined to think that the defendant’s counsel are correct in the position that the copy of claim filed is not such as entitled the plaintiffs to a judgment for want of an affidavit of defence, we do not think that the judgment is a void one. It is voidable only, and we think the length of time that has elapsed since the defendant had knowledge of the judgment, and the neglect for so long a time to move to set it aside, coupled with the fact that the defendant, since the rule to strike off the judgment was obtained, has suffered judgment, ' pro confesso, to be taken against it in the equity suit pending, and with the other facts recited, the defendant must be regarded as having waived the irregularity, if any, in the taking-judgment for want of an affidavit of defence. The rule to strike off the judgment is therefore discharged.</p> <p>Oil April 12, 1889, the defendant company, took this writ, assigning the refusal of the court to strike off the judgment as error.</p>

<p>(«) Plaintiff made a contract with defendants to cut and skid timber at a certain price per thousand feet, the logs to be measured by Scribner’s Rule. When the logs were cut aud skidded, they were measured by the parties, the contract price paid and a receipt in full given. After some of the logs had been sawed, plaintiff, alleging a mistake against him in tire measurement upon which he had settled, remeasured the unsawed logs and brought suit for the difference in the whole.</p> <p>1. In such case, the mistake in the first measurement being shown, that measurement and the settlement thereon would not bar recovery in this action, and if was not error to charge the jury that if the plaintiff was to have the benefit of the mill measurement of the logs that had been sawed, he should be bound by that measurement of the logs unsawed and remeasured by him.</p>

No. 44 January Term 1889, Sup. Ct.; court below, No. 401 May Term 1888, C. P. On April 20, 1888, an action of assumpsit was brought by C. F. Watt and J. B. McElwaine, lately trading as Watt & McElwaine, now to the use of J. B. McElwaine, against Charles Sipler, John J. Ashbaugh, Joseph Gates and Eli Logue, partners, lately trading as Sipler, Ashbaugh & Co. Joseph Gates alone was served, and to the plaintiffs’ narr in the common counts, to which was attached a copy of a book…

No. 245 January Term 1889, Sup. Ct.; court below, No. 17 December Term 1887, C. P. On July 9, 1887, an action of assumpsit was brought by William Reed against B. G. Morrison on a note which was as follows: West Hickory, March 4,1871. Due William Reed two hundred dollars, money loaned to pay on land. Witness my hand and seal. [Signed] B. G. Morrison, (L. S.) The defendant pleaded non-assumpsit, payment, set-off, statute of limitations. Issue.

<p>FROM THE DECREE OF THE COURT OF COMMON FLEAS OF WARREN COUNTY, IN EQUITY.'</p> <p>No. 116 July Term 1888, and No. 8 January Term 1889, Sup. Ct.; court below, No. 16 September Term 1884, C. P. in Equity.</p> <p>On June 18, 1884, John R. Kulm filed a bill in equity against Joseph A. Weible, II. E. Brown, Titus S. Emery, George Sturgis, Hattie B. Davis, Jeremiah G. Shaw and The Anchor Oil Company, asserting an interest in an oil leasehold, and, upon the facts charged in relation thereto, praying that an injunction be granted restraining the defendants from destroying an original lease and tlie extension thereof, and any letters or telegrams relating thereto ; that any writing attempting to surrender the lease be given up and canceled ; that said lease be delivered to plaintiff, or to some person appointed by the court, for safe keeping; that a certain lease from T. S. Emory, attorney in fact, to Rf. if. Brown, be delivered up and canceled; and that plaintiff be at liberty to examine witnesses, etc., in perpefuam rei memoriam. A preliminary injunction was awarded, and afterwards, on motion, continued until further hearing.</p> <p>On September 19, 1884, by leave of court, an amended bill was tiled averring that said Weible and Brown were the trustees of the plaintiff as to the title to the leasehold and as to one third ot’ the oil produced therefrom, and that no account had been taken of the production ; praying that the names of the National Transit Company and W. II. Dufur be added as defendants, and that the said National Transit Company and W. H. Dufur be enjoined from receiving one third of the oil produced ; that an account be taken, and that Weible and Brown be decreed trustees for the plaintiff as to the undivided one third of the leasehold.*</p> <p>On February 9, 1885, a receiver was appointed to receive from the National Transit Company, all the oil which had accrued to the one third of the leasehold interest described in the plaintiff’s bill, to settle the storage, shrinkage, etc., and to hold the oil until otherwise ordered by the court.</p> <p>Answers having been filed and issue joined, on February 4, 1886, the cause was referred to Mr. William Schnur, as examiner and master, whose report showing the controversy, filed on December 6, 1886, was as follows:</p> <p>By lease for oil purposes dated June 21, 1881, George Sturges, Hattie B. Davis and Jeremiah G. Shaw, by their attorney in fact, Titus S. Emery, leased to Geo. Marsh and John 11. Kuhn 105 acres of laud situate in Glade township, Warren county and state of Pennsylvania. The parties of the second part therein, covenanted “ that within thirty days from the •date thereof they will commence to drill and explore for petroleum, coal oil, rock or carbon oil, in and under the surface of the land hereinbefore described, and will prosecute such drilling and exploration with due diligence to success or abandonment,” etc. This lease was for the term of fifteen years, at one eighth royalty on all wells producing ten barrels or less, and one fourth royalty on all wells producing over ten barrels per day. There are quite a number of covenants relating to the number of wells and other matters, but among others are the following, “And in event of discontinuing work for a period of sixty days, this lease shall be forfeited; and further, any failure to perform the covenants herein contained, shall, at the option of the said parties of the first part, work a forfeiture of this demise.” Upon the termination of the lease from any cause, any attorney, at the request of the parties of the first part, might sign an agreement as attorney for second parties for entering in any competent court an amicable action of ejectment for said land.</p> <p>No operations for oil had been conducted on this land up to August 4, 1883, at which time the lease was renewed to Kuhn and Marsh upon condition that second parties should, in good faith, commence active operations on the property within thirty days from the date of renewal, subject to the terms of the original lease. J. R. Kuhn paid the sum of fifty dollars for the renewal, which was sent by draft to Mr. Emery; J. A. Weible paid to Gr. W. Marsh, who went to Mr. Emery to get the renewal, the sum of eighty dollars for expenses.</p> <p>On August 8, 1883, Kuhn and Marsh assigned to J. A. Weible a one third interest in said lease. Operations were commenced on said land during the month of August; a rig had been built and other things done, but while they were waiting for machinery a dry hole came in on the south side and another nearly dry on the north side of this lease. The well was not completed. Mr. Weible, defendant, says he favored putting a well on the north end of the lease. J. A. Weible then entered into negotiations with said Emery for a modification of the lease and saw said Emery personally in relation thereto, as will be seen from the following correspondence :</p> <p>By letter dated March 15, 1884, Weible writes to T. S. Emery, from Warren, Pa.: “ Dear Sir: When you were here last the outlook on your property was not encouraging, and after you left a dry hole on the edge adjoining you came in, and we abandoned the well without completing. I would like to move the rig to the extreme north end and drill as fast as the weather would permit and get everything moved before the roads break up; but now, Mr. Emery, I think you should give me a chance at a straight eighth royalty.”</p> <p>To which said Emery replied from Philadelphia, March 17, 1884: “Dear Sir: Your letter of loth inst., relating to the oil lease on the Shipman farm is before me. I am willing to modify the lease, as I advised Mr. Brown, the legal adviser of the owner of the laud, but I see no good reason for reducing the royalty. If the property produces good wells the land owners ouglit to share tlie profits.”</p> <p>In the meantime other parties bad become interested in the territory and were trying to negotiate for the land, as will be seen by a letter from said Emery, from Philadelphia, March 19, 1884:</p> <p>“Ms. John Galloway, Warren, Pa.:</p> <p>“ Dear Sir: Your letter of the 17th inst., offering to lease the Shipman farm in my charge, for putting down an oil well, is before me. The Marsh and Weible lease has lapsed by their failure to perform their part of the contract; but they have applied for another chance. I feel disposed to be liberal with them, if they want time and will go on in good faith; If they do not at once come to terms, I will see what can be done for you.”</p> <p>On the same day said Emery writes to J. A. Weible from Philadelphia:</p> <p>“ Dear Sir: I have applications to lease the Shipman farm for oil wells, and as you have abandoned the operations and forfeited your lease, I should feel disposed to treat with them at once, had I not received your letter of the 15th, practically asking for a renewal, at least that was wliat I construed your letter to mean. Now, if you wish to renew, I shall expect you to agree to put down one well, in good faith, at once, and unless you do agree to that within a week I shall request Judge Brown to consider the new applications before me, and if either of them are reported to be responsible parties, I shall consider your lease abandoned and will then be prepared to open new negotiations with other parties.”</p> <p>On March 21, 1884, the following telegram was sent to Mr.. Emery:</p> <p>“ On receipt of your first letter, ordered new rig on north end and men at work, which will be completed and drilled as fast as weather will permit. J. A. Weible.”</p> <p>Thereupon, on March 22, 1884, Mr. Emery writes to John GaEoway, to whom he had written the letter of March 19, 1884:</p> <p>“Dear Sir: Your letter of 21st inst., relating to the proposed lease of the Shipman farm for oil wells is received. I also received a dispatch from Mr. Weible advising me that on the receipt of my letter, a few days since, he ordered a new rig on north end and men at work, which will be completed and drilled as fast as weather will permit. If he. goes on in good faith, I am disposed to give him a fair show. Should he again fail to proceed according to contract, I shall declare his lease forfeited, and in that case will be ready to consider new proposals. I have had other proposals than yours to lease the property, but have given terms to no one.”</p> <p>George W. Marsh, at some time after the first well was abandoned, sold his interest in said lease to J. A. Weible ; so that the interests in said lease when the second well was commenced stood in J. R. Kuhn one third, and J. A. Weible two thirds.</p> <p>J. A. Weible testifies that on “ March 21, 1884, I told him (Kuhn) I was going to try to get a new lease, and we would have to act quick. I asked him if he wanted to take a third interest with me. He said yes. Kuhn was to pay one third and I two thirds.”</p> <p>The rig of the second well was put up and operations commenced during the latter part of March, under the direction of G. W. Marsh, for Kuhn and Weible.</p> <p>About this time another oil well was put down on property in the vicinity of this lease by J. A. Gartlan. The oil sand in the Gartlan well was struck on May 5, 1884, and the well was opened on May 9, 1884. Mr. Gartlan says that he, in conversation with Weible, told him that he believed that he had a good well. Said Gartlan further says, “ I think there was a conversation between Weible and myself that whoever got his well down first would give the other information, but 1 am not clear in my recollection, about it.’’ 'Che conversation between Weible and Gartlan, when Gartlan told Weible that he believed he had a good well, occurred, according to Gartlan’s testimony, on the 5th of May. Between May 5 and 9, 1884, J. A. Weible sent H. E. Brown, Esq., one of the firm of Brown & Stone, attorneys, to see Mr. Emery to get a new lease. Mr. Brown went as the agent of Mr. Weible, as shown by the testimony. When Mr. Brown saw Mr. Emery, he (Emery) asked said Brown if there was any question about the lease being forfeited, having reference to the lease theretofore made to Kuhn and Marsh, and afterward extended and referred to in the correspondence between said Emery and said Weible, and said Emery refused to give a new lease till the old one was surrendered. Mr. Brown thereupon told said Emery that the old lease had been forfeited, whereupon the old lease was delivered up and canceled, and the said Emery made a new lease to H. E. Brown, Esq., dated May 9, 1884. About May 12, 1884, the said H. E. Brown, Esq., assigned the one half interest in said lease to J. A. Cadwallader and E. F. Johnson, which interest is now held by the Anchor Oil Company, and on the same date said H. E. Brown assigned the other one half interest in said lease to J. A. Weible. The consideration money for the one half interest assigned by said Brown to said Cadwallader and said Johnson, was paid to Weible and not to said Brown. And said Brown, in answer to the interrogatories filed by plaintiff, says : “ At the same time I made the assignment mentioned, i. e. to Cadwallader and Johnson, I also assigned the other undivided one half to J. A. Weible. He paid my expenses, and for my time, and agreed to pay a sum to be fixed by himself if the property should prove productive.”</p> <p>The oil well on this lease put down struck oil in paying quantities about May 31, 1884.</p> <p>The plaintiff filed his bill, and amended bill, in which he in substance alleges that he, Kuhn, was tenant in common with Weible in said lease and renewals ; that the surrender of said lease and rights thereunder by H. E. Brown was fraudulent and void; that if said Brown acquired any rights to the lease of May 9, 1884, he and others to whom it was assigned with notice of plaintiff’s rights, are trustees simply of Kuhn’s interest, and prays for relief as shown by the several bills. Defendant Weible’s answer sets up a denial of plaintiff’s right, and claims that the original lease was forfeited and the renewals thereof abandoned; that H. E. Brown procured the lease of May 9, 1884, for himself, Brown; that he, Weible, acquired his rights to the leasehold from said H. E. Brown.</p> <p>Interrogatories were also filed and served for discovery to which defendants made answer.</p> <p>Your master has given careful consideration to the bills, answers, interrogatories and the answers thereto and the evidence in this case. The first question presented is, did Kuhn have any interest in this leasehold? If so, when and how was that interest divested ?</p> <p>* * * *</p> <p>From all the facts and the law applied thereto, your master is of opinion that Kuhn’s interest in said original lease and renewals was good and valid up to the date of the new lease to H. E. Brown. How, then, did the new lease to H. E. Brown affect Kuhn’s interest ?</p> <p>H. E. Brown, in his answer to the interrogatories served on him, claims that he got the lease for himself. Is this tenable ? Mr. Emery says that he made the lease to H. E. Brown, personally. Mr. Emery, so far as shown by the testimony, is probably sincere. The original lease and correspondence and papers relating thereto were in the possession of Weible. H. E. Brown got the papers from Weible; he was sent with the papers to see Mr. Emery for Weible; Weible paid him his expenses and time in seeing Mi'. Emery, and was to pay Brown a sum to be fixed by Weible in case the well proved good. Brown a few days after May 9, 1884, assigns to Weible the one half interest without further consideration; at the same time Brown assigned the remaining half in the new lease to Cadwallader and Johnson, and the consideration therefor was paid to Weible.</p> <p>From all these facts your master is of the opinion and so finds that H. E. Brown in procuring the lease of Mr. Emery dated May 9, 1884, was the agent of J. A. Weible, and that Kuhn’s rights under the original lease and renewals were not affected thereby, and that J. A. Weible as to the one third interest of Kuhn held the same in trust for Kuhn.</p> <p>Defendant’s counsel, Brown & Stone, raise the question that the plaintiff’s bill is an ejectment bill and cannot be maintained ; that the title being in dispute should be first determined by an action "at law.</p> <p>After due examination of the authorities cited by counsel, and from the fact that your honors have exercised jurisdiction of this cause in granting an injunction to preserve the title papers and evidence of plaintiff from destruction, and overruling the demurrer to plaintiff’s interrogatories for discovery, your master is of the opinion that the plaintiff’s bill rightly lies in equity. The dispute is not altogether one of possession; so far as that arises, as hereinbefore stated, Marsh went into possession as superintendent, or to take care of the well for Kuhn and Weible, and nothing occurred afterward by which that state of facts was changed by Kuhn or Weible- The evidence disclosed a state of facts which, in the opinion of your master, would be a fraud upon the rights of plaintiff if permitted to stand. The plaintiff’s bill, among other things, asks to preserve plaintiff’s title papers and prevent their destruction; to perpetuate the evidence thereof, for a discovery, etc., of all which equity has jurisdiction; and it seems well settled that if a court of equity once acquires jurisdiction, it will dispose of every subject of dispute, whether it be one of remedy or of distinct, yet connected topics of dispute.</p> <p>The question of notice to the Anchor Oil Company of the plaintiff’s right to make it trustee with Weible, your master thinks immaterial, because Mr. Weible still has, so far as shown, interest enough, to wit: one half, to make good to Kuhn the one third interest of which Weible is trustee. So far as the interest of W. H. Dufur in this controversy is concerned, it was admitted upon the hearing of this cause by W. G. Trunkey, Esq., that Dufur had no other or greater right than said Weible, and that said Dufur stood in said Weible’s shoes.</p> <p>Your master, therefore, recommends under the view taken that the lease of May 9, 1884, was taken in trust for Kuhn as to the one third, that the court decree</p> <p>1. That the said J. A. Weible convey, as the court may direct, to J. F. Kuhn the two thirds of the one half interest now held by said Weible in the lease from Titus S. Emery, attorney in fact for George Sturges, Hattie B. Davis and Jeremiah G. Shaw, dated May 9,1884, for the land therein mentioned, which is equal to the one third interest in said lease.</p> <p>2. That if not already recorded, that said Weible deliver said lease dated May 9, 1884, to W. J. Alexander, recorder of deeds for Warren county, or some disinterested person as the court may direct, for custody or record.</p> <p>3. That said J. A. Weible account to plaintiff for the oil taken from said leasehold and the expenses thereof, that the same may be divided according to the respective proportions or interests.</p> <p>To the foregoing report various exceptions chiefly relating to findings of fact, filed by the defendants, were overruled by the master. The exceptions being renewed upon the filing of the report, they were dismissed by the court, Brown, P. J., without opinion filed, and the master’s report confirmed, the defendant Weible to pay the costs from the funds going to him in the hands of the receiver.</p> <p>Thereupon, the master, who was also the receiver appointed by the order of February 9, 1885, stated and reported an account and recommended the following order and decree :</p> <p>That the said J. A. Weible pay to J. II. Kuhn the sum of 16,878.24, together with any interest that may have accrued thereon in the hands of the receiver, and that J. A. Weible pay the costs of this accounting.6</p> <p>Exceptions filed to the foregoing final report by both the plaintiff and the defendants were dismissed by the court, Brown, P. J., May 19, 1888, without opinion filed, the account stated confirmed, and a final decree entered as above recommended by the master.6</p> <p>Thereupon the defendants took this appeal and certiorari, specifying that the court erred:</p> <p>1. In not finding that the original lease of June 21,1881, and its renewal of August 4, 1883, were forfeited.</p> <p>2. In finding from the letters and telegrams between Weible and Emery, in substance, that the forfeiture of the lease of June 21,1881, audits renewal of August 4,1883, were waived, and the original lease and renewal reinstated in March, 1884.</p> <p>3. In taking into consideration in finding the forfeiture waived, the letters from Emery to Galloway.</p> <p>4. In finding that H. E. Brown took the lease of May 4, 1884, for Weible and Kuhn.</p> <p>5. In finding that there was an arrangement between Kuhn and Weible by which Kuhn acquired any interest, other than such interest as lie had in the original lease of June 21, 1881, and its renewal of August 4, 1888.</p> <p>6. In entering the final decree of May 19, 1888.°</p>

<p>[To be reported.]</p> <p>1. In trespass for cutting and converting timber trees, under § 3, act of March 27, 1824, 8 Sm. L. 283, where the plaintiff's show title only to the undivided three fourths of the land in question, and the defendants are in possession of the remaining one fourth, claiming title thereto though under a defective title, the parties must be regarded as tenants in common.</p> <p>2. The record of an ejectment wherein plaintiffs had recovered against the defendants the1 undivided three fourths of the premises, with the writ of habere facias and the return, established their actual possession of the recovery at the time the action.in tresi^ass was brought, and their right of possession and title when the writ of ejectment issued.</p> <p>3. Though by § 2, act of May 4, 1869, P. L. 1251, a tenant in common may have against his co-tenant the same remedy as against a stranger, for the cutting and conversion of timber trees without his consent, yet that act does not authorize in his favor the penalty of double or treble damages provided by the act of March 27, 1824: Wheeler v. Carpenter, 107 Pa. 271. ■</p>

No. 310 January Term 1889, Sup. Ct.; court below, No. 46 December Term 1887, C. P. On October 27, 1887, the First National Bank of Warren brought assumpsit against O. C. Allen, to recover on a note made by the defendant dated November 5, 1886, for $5,000, payable at three months at the First National Bank bf Warren, to the order of Beecher & Copeland, and by Beecher & Copeland indorsed. The defendant pleaded, non-assumpsit.

<p>ERROR TO THE COURT OE COMMON PLEAS OE SNYDER COUNTY.</p> <p>No. 179 July Term 1887, Sup. Ct.; court below, No. 21 December Term 1885, C. P.</p> <p>To -the term and number in the court below referred to, Philip R. Lenig, administrator of Jacob H. Lenig, deceased, brought assumpsit against Daniel Eisenhart, to recover the amount of a policy of insurance upon the life of said deceased received by the defendant. The defendant pleaded non-assumpsit.</p> <p>At the trial, the plaintiff showed that on August 7, 1870, the Home Mutual Life Association of Pennsylvania had issued a policy of insurance on the life of Jacob H. Lenig for $1,000; that two days afterward the assured in consideration of $1 assigned the policy to Daniel Eisenhart, to whom the company paid the insurance after the death of the assured on September 5, 1880. The plaintiff then called one Samuel Spitler, stating that by said witness he proposed to prove that some time after the death of Jacob H. Lenig, in a conversation witness had with the defendant, the latter admitted to him that he was to pay Jacob H. Lenig $5 for the policy; this for the purpose of showing that the insurance was speculative, and that the defendant was not a creditor of the insured. Under objection and exception to the defendant, the witness testified as follows :</p> <p>“ I went to Mr. Eisenhart and told him I was to get $5 from him that he owed Jacob H. Lenig for insurance taken out on his life for $1,000, and Mr. Eisenhart said that was their bargain, and he reached in his pocket and handed me $3, and said this is all he would give me; it was all it was worth.”</p> <p>The plaintiff then rested, when the defendant moved for judgment of compulsory nonsuit, which was granted, the court, Bucher, P. J., saying:</p> <p>The plaintiff alleges that the policy, on which the defendant received the money in dispute, was a wagering one. The law hates such contráete. In order to make such contracts, it requires the assent of the plaintiff’s intestate, as well as the defendant. The ordinary rule of law as to such contracts is, that the plaintiff cannot recover unless he can come into court with clean hands, that is, prove he has a case without showing that he too has broken the law. If he cannot do this, the law says that he is in pari delicto and there can be no recovery. The Supreme Court has made an exception to this well-known rule in these wagering life insurance policies and we propose to follow the rule. In the case on hand the plaintiff alleges that the contract was a wagering one, and he must prove it. One may have an insurable interest in the life of another in two ways : first, he must be of the blood of the insured in such a degree as to give him an insurable interest; second, the relation of debtor and creditor must exist between them. The plaintiff recognized this principle when he called witnesses to negative relationship by blood between the defendant and the assured. Proof of either of these conditions will strip the contract of the character of being wagering. The proof of non-relationship put the plaintiff half-way on the road to a recovery; but he could not stop there. He must go further and prove that the relation of debtor and creditor did not exist between the deceased and insured. The presumption is that the assignment of the policy to the defendant was all right. The law presumes that all men do right and obey the laws; that all contracts made by them are not forbidden. He who alleges the contrary must prove it. The plaintiff has so alleged, but the faint glimmer of evidence offered is insufficient to show that the relation of debtor and creditor did not exist, and hence we order a peremptory nonsuit.</p> <p>Judgment having been entered, with leave, etc., the plaintiff’s motion that the judgment of nonsuit be vacated was subsequently refused, when the plaintiff took this writ specifying that the court erred in sustaining the motion of the defendant and entering judgment of compulsory nonsuit, and more specifically in ruling, first, that the burden of proof was upon the plaintiff to show want of insurable interest in the defendant; second, that the evidence given by plaintiff was insufficient to show that the defendant had no insurable interest in the life of the insured.</p>

No. 115 July Term 1888 and No. 11 July Term 1889, Sup. Ct.; court below, No. 164 September Term 1872, C. P. On February 20, 1888, J. B. Richards presented his petition setting forth that the note upon which the judgment, entered to the number and term of tlie court below referred to, in favor of Charles C. Speers against J. F. Richards and J. B. Richards, for the sum of $1,500, “ did not authorize any such act as a confession of judgment, and that said judgment was illegally…

<p>[To be reported.]</p> <p>1. Where the administrators of an insolvent estate collected a sum due their decedent on an account open at his death, but paid it directly upon the claim of a creditor of the estate, they are properly surcharged with the amount thereof on the adjudication of their accounts.</p> <p>2. In such ease, however, the accountants are entitled to be subrogated to the rights of the creditor, so paid, in the dividend awarded to the latter’s claim against the estate, to an amount not exceeding the amount of the surcharge.</p> <p>8. A claim to the amount of such surcharge, set up by one alleging himself to have been a partner with the decedent in the transaction out of which it arose, was properly disallowed in this case, the evidence being insufficient to establish the alleged partnership.</p>

<p>[To be reported.]</p> <p>1. The submission, of a cause, under the provisions of the act of May 14, 1874, P. L. 166, to a person learned in the law but not authorized to act as an attorney in the Supreme Court of this state, is erroneous, and all proceedings under it, with the award made, are invalid.</p> <p>2. County commissioners, representing the people of a county, act in a fiduciary capacity, and are without authority to submit a ease to the decision of the court under the act of April 22, 1874, P. L. 109; wherefore, they may not legally enter into a submission to a person learned in the law under the act of May 14, 1874, P. L. 166.</p> <p>3. In the case at bar, the submission having been made by the county commissioners, as one of the parties, to a person learned in the law but unauthorized to act as an attorney in the Supreme Court, the entire proceeding was abortive, and the court where the cause was pending had ample power to set it aside.</p>

<p>FROM THE DECREE OF THE ORPHANS’ COURT OF BEDFORD COUNTY.</p> <p>No. 284 January Term 1889, Sup. Ct.; court below, number and term not given.</p> <p>In March, 1879, Mrs. Rebecca Yalentine et al., children and grandchildren of Philip Devore, late of Londonderry township, deceased, presented their petition representing that said Philip Devore died in 1868, having made his last will and testament, duly admitted to probate, of which will Josiah Miller and Jacob L. Albright were the executors; that said executors had filed two accounts, but that said accounts did not entirely settle and close the estate of said testator, and there were moneys in the hands of said executors, or should be, which ought to be distributed and paid to the legatees; praying for a citation, etc.</p> <p>An answer was filed by Josiah Miller setting out that when the first account was filed he unfortunately joined with his co-executor therein; and that all the balance not paid out was then in the hands of said co-executor; that although the entire balance which was set apart for the payment of sundry legacies to persons, when and as they should reach the age of twenty-one years, was in the hands of his co-executor, the respondent had been compelled to raise money and pay them; and that since the filing o£ his last account, he had received no money or assets of the estate of the decedent.</p> <p>The answer of J. L. Albright set out that after the filing of the two accounts, which had been duly confirmed and distribution fully made thereon, he was discharged from the trust, and the business of the estate was then solely in the hands of liis co-executor, Josiah Miller; that all moneys of said estate had been fully accounted for in said two accounts, and that since that time the respondent had not received one dollar of the estate of the decedent.</p> <p>On June 2, 1879, Mr. M. A. Points was appointed auditor, 41 to find and report the facts with an opinion on the law.” On October 9th, 1879, on motion of the petitioners’ attorneys, the powers and duties of the auditor were enlarged “ so that he be required to state an account for the said respondents,” and make report of the same.</p> <p>The facts developed in the several hearings before the auditor, as shown by his several reports, so far as material to this case, were as follows:</p> <p>The will of Philip Devore, dated January 1, 1868, was admitted to probate on February 6, 1868, and letters testamentary issued on the same day to Josiah Miller and J. L. Albright.</p> <p>The decedent, in 1867, had sold certain real estate to J. L. Albright for $3,000, taking notes at long periods, with the interest added to each instalment, so that the notes would not bear interest except from maturity. These notes went into the hands of J. L. Albright as assets of the estate.</p> <p>By the will six legacies of $500 each were given to grandchildren, then quite young, payable to them on reaching majority. There was evidence that the notes referred to were intended to meet these legacies.</p> <p>On October 16, 1869, the executors filed a joint account, confirmed November 16, 1869, showing a balance in their hands of $5,818.14. This account was referred to Mr. S. L. .Russell, as auditor, for distribution. In his report the auditor ascertained the net balance, and directed: “ From this sum of $5,740, deduct the amount of the special legacies, $3,000, which is to be retained by the executors and safely invested for the legatees, $3,000.” The report was confirmed February 14, 1870, and distribution decreed accordingly. The residue, after making the deduction, was paid promptly to distributees.</p> <p>On October 26, 1871, the executors filed separate supplemental accounts, which were confirmed November 11, 1871, and referred to the same auditor, Mr. S. L. Russell. The amounts in the hands of the respective executors were stated in the auditor’s report separately, thus: “Miller, $2,851,03; Albright, $2,018.97; ” showing total amount for distribution $4,870.</p> <p>Early in 1874, Mr. Albright became involved. On May 11, 1874, a certificate from the Orphans’ Court was filed in the Common Pleas showing a balance in the hands of Josiah Miller and J. L. Albright, as executors of Philip Devore, deceased, of $4,870; a scire facias was issued thereon, and judgment obtained soon afterward. There was evidence, however, that in fact the amount for which this judgment was obtained had all been paid to the parties in interest, except a balance of $307.90, payable by Miller and paid by him in 1876.</p> <p>On July 20, 1874, J. L. Albright made an assignment for the benefit of creditors. Upon petition afterwards presented, an order was made October 21, 1875, discharging him as one of the executors of Philip Devore deceased; and in 1877 his assigned estate was distributed by Mr. John H. Jordan, as auditor, before whom the joint judgment above referred to was presented on behalf of Josiah Miller, now the sole executor, and a dividend of $192.61 awarded thereon and received by Miller.</p> <p>When the final report of the auditor was made, the six legatees liad been paid their legacies of $500 each, and they had assigned them with the interest accrued thereon to the estate of Josiah Miller, who had died pending the proceedings.</p> <p>Upon the contention made before him upon the foregoing facts, the auditor charged the estate of Miller with the dividend of $192.61, hereinbefore referred to, and interest amounting to $323.39, and also with $1,714.49, interest on the six legacies, and interest thereon, amounting to $2,140.88, and recommended a decree awarding said sums to the residuary legatees.</p> <p>Exceptions filed by Francis A. Miller, executor of Josiah Miller, deceased, to the report of the auditor were dismissed by the court, Babb, P. J., the report confirmed, and a decree entered as recommended, when the exceptant took this appeal, specifying that the court erred:</p> <p>1. In charging the estate of Josiah Miller with $192.61, dividend and interest thereon received from assigned real estate of Jacob L. Albright, in all $328.39.</p> <p>2. In charging the estate of Josiah Miller with $1,714.99, interest on the six special legacies, and $425.89, interest thereon, in all $2,140.88.</p> <p>8. In appropriating the interest on the special legacies, $2,140.88, if charged against the executors, to the general or residuary legatees of Philip Devore, deceased, and in refusing to appropriate the same to the estate of Josiah Miller, deceased, as all of said special legacies and all interest thereon had been assigned to Miller’s estate.</p>

No. 292 January Term 1889, Sup. Ct.; court below, No. 123 Equity D. On August 26, 1885, Eliza J. Jones and Henry Wilkey filed a bill in equity against Philip Wilkey, averring in substance that James Wilkey, the father of the parties plaintiff and defendant, died with weakened and impaired mind on November 7, 1888, aged 81 years; that he left surviving him a widow, Catharine, aged 78 years, and four children, to wit: John Wilkey, Henry Wilkey, Eliza J. Jones and Philip…

<p>ERROR TO THE COURT OE COMMON PLEAS OE EAYETTE COUNTY.</p> <p>No. 334 January Term 1889, Sup. Ct.; court below, No. 289 September Term 1888, C. P.</p> <p>Case stated, in which Francis Morrison was plaintiff and the county of Fayette, defendant:</p> <p>August 13, 1888: It is hereby agreed between the parties in this suit that the following case be stated for the opinion of the court in the nature of the special verdict, viz.:</p> <p>Francis Morrison, the plaintiff above mentioned, is one of the county auditors of the said county, elected in November, 1887; that he assumed the duties of the said office and performed the same consisting of nine weeks’ attendance in the months of January, February and March, 1888, at Uniontown in said county, auditing the accounts of the county officers of the said county according to the Jaw; that the residence of the plaintiff is, by the usual mode of travel, by the railroad line, thirty-three miles distant from Uniontown, and by the county road, through the mountains, is eighteen miles distant from Uniontown; that in traveling to and from the residence of the plaintiff to Uniontown, to attend to the duties of his office, the plaintiff traveled by the said railroad route; that he did not actually travel to and from his said residence every week during the said period of nine weeks, but remained in Uniontown most of the time; that the plaintiff’s claim in this case is for his mileage under the act of May 12, 1887, P. L. 95.</p> <p>It is claimed by the defendant that the plaintiff is not entitled to mileage, as the act of May 12, 1887, above referred to, does not apply to Fayette county; the plaintiff’s claim being stated as follows, viz.: Sixty-six miles circular at Gets, $3.96; 9 mileages, $3.96 each, $35.64, none of which has been paid him, although demand has been made for the same, and all other compensation due by the defendant to the plaintiff for or on account of the said county auditing having been paid by the defendant.</p> <p>If, under the foregoing facts the court should be of the opinion that plaintiff is entitled to recover his said mileage, judgment is to be entered for the plaintiff for $35.64, with interest from March 1, 1888 ; but if the court should be of the opinion that the plaintiff is not entitled to recover as aforesaid, judgment is to be entered for the defendant, the judgment in either case to carry costs and both parties to be at liberty to sue out a writ of error.</p> <p>And now, to-wit: April 9, 1889, by leave of court, the case stated in the above action is amended as follows: The county commissioners claim that the act of May 12, 1887, P. L. 95, upon which the plaintiff relies to recover said mileage, does not apply to said county of Fayette, but that the auditors of said county are to be paid according to the compensation fixed by the act of February 5, 1869, P. L. 117, a special law for said county, to-wit:</p> <p>“ Section 1. Be it enacted etc., that from and after the first day of June, one thousand eight hundred and sixty-nine, the compensation of the county commissioners and county auditors of Fayette county shall be three dollars per diem for every day necessarily employed in the discharge of their official duties; ” etc.</p> <p>The act of May 12,1887, P. L. 95, is as follows :</p> <p>“Section 1. Be it enacted, etc., that from and after the passage of this act, the auditors of each county shall be allowed, out of the county funds, the sum of three dollars each, for each and every day necessarily employed in the discharge of their duties, together with six cents per mile circular, from and to their homes, once for each and every week so employed.”</p> <p>On November 8,1888, the court, Ewing, J., filed the following opinion and order.</p> <p>This action was instituted by Francis Morrison, one of the county auditors, for the purpose of recovering mileage under the provisions of act of May 12, 1887, P. L. 95, the county commissioners having refused to allow him such privilege, because they claim that said act does not apply to this county, but that the auditors of this county are to be paid according to the compensation fixed by the act of February 5, 1869, P. L. 117, a special law for this county. The receipt of the full compensation, prescribed by said act of 1869, is acknowledged by the plaintiff. The sole inquiry here, then, is whether or not the general law of May 12, 1887, repeals the special law of February 5, 1869, as to the compensation of county auditors.</p> <p>There is no repealing clause in said later act. In Brown v. County Commissioners, 21 Pa. 48, it is said, that “ it seems to be well settled that a general statute without negative words cannot repeal a previous statute which is particular, even though the provisions of one be different from the other.” There are no negative words in the act of May 12, 1887. To the same effect is the ruling in the case of Malloy v. Reinhard, 115 Pa. 29, which turned upon the construction of the act of June 25, 1885, P. L. 187, which has a repealing clause excepting local laws; and the court there held that even had such repealing section been omitted, the local statutes would not have been affected. But it is argued the language of the act of 1887 is so comprehensivo and explicit that it shows that a repeal of all local laws on the subject was intended. That language is, “that from and after the passage of this act the auditors of each county shall bo allowed; ” and the language in the act of 1885, in question in the case of Malloy v. lleinhard, supra, is equally explicit, etc., for that act says, “ that the qualified electors of each borough and township in this commonwealth shall be; ” and yet it was decided that no local law was thereby repealed.</p> <p>And it will not do to argue that the auditors of this county should receive as much as such officers elsewhere in the state, for the court does not fix the compensation, but the legislature. There are doubtless local laws in other counties of the state whereby the auditors of those counties receive more than is provided in the act of 1887, and the auditors of those counties would have their compensation reduced if the act of 1887 repeals the local law of this county, for then it would repeal all local laws.</p> <p>Another theory: The plaintiff here does not pretend to have earned the mileage claimed by the travel of the distance named, at least the number of times mentioned, nor at all by the route claimed for; and, in any event, only mileage for the route lie traveled, if shorter than the route usually adopted, and for the times actually traveled, could be claimed. These facts are not given us. It can hardly be that it was intended by the act of 1887 to give mileage when the distance was not traveled. The special law of February 5, 1869, is not set out in the case stated, as it should be, and in the order leave will be given to amend in that respect.</p> <p>And now, November 8, 1888, after examination and consideration of this case, leave is given to so amend the case stated as to set out the local law of February 5, 1869, upon which defendant relies, and, therefore, it is ordered and directed that judgment be entered in said case stated, in favor of the defendant for cost of suit.</p> <p>Per Curiam.</p> <p>Judgment having been entered for the defendant, the plaintiff took this writ assigning the order of November 8,1888, as error.</p>

No. 397 January Term 1889, Sup. Ct.; court below, No. 403 September Term 1887, C. P. On August 24, 1887, a scire facias sur mortgage was issued at the suit of William Colvin, assignee of John H. Brice, against John F. Blymyer. Tbe plea was payment. At the trial on February 18,1888, before Baer, P. J., there was a verdict for tbe defendant and judgment thereon, followed by a writ of error to No. 30 July Term 1888, Sup.

No. 415 January Term 1889, Sup. Ct.; court below, No. 82 March Term 1885, C. P. On December 29,1884, W. F. Patterson and John M. Kulm, partners under the firm name of Patterson & Kuhn, brought covenant against the county of Fayette, to recover a balance claimed upon a contract entered into by them for the erection •of County Home buildings. The defendant pleaded, covenants performed absque boo.

<p>Tlie finding of an auditor, that an heir at law had been advanced by the decedent in the purchase of a farm the deed for which was made directly to the son, being based upon sufficient evidence and approved by the court, the decree confirming the report, etc., will not be reversed.</p>

<p>Where, in a sheriff’s interpleader, it was found that the claimant of the properly, grain, stock, implements, which had been purchased at execution sales, left it with the execution defendant, who was made a tenant upon a farm rented by the claimant under an arrangement in good faith that the tenant should work the farm, keep up the property, and after taking out a support for himself and family turn over the surplus to the claimant, the transaction was not a fraud in law or in fact upon the tenant’s creditors.</p>

<p>EBBOB TO THE COURT OF COMMON PLEAS OB’ LACKAWANNA COUNTY.</p> <p>No. 58 January Term 1888, Sup. Ct.; court below, No. 212 October Term 1885, C. P.</p> <p>On July 8, 1885, Hill, Reiser & Co., Limited, brought assumpsit against S. N. Stetler, E. L. Fuller, R. W. Archbald and Theodore Strong, doing business as The Amity Coal Company, Limited, to recover tlie sum of 0410.82 with interest, the price and value of furniture sold and delivered by the plaintiffs to tlie defendants at their request. The defendants pleaded, nonassumpsit, and one of them, Mr. Strong, filed an affidavit of defence denying general partnership and alleging that The Amity Coal Company, Limited, was an association organized under the act of June 2, 1874, P. L. 271, by statement duly recorded.</p> <p>At the trial on April 4, 1887, the plaintiffs put in evidence the statement of association of S. N. Stetler, E. L. Fuller and R. W. Archbald, dated June 18, 1883, acknowledged June 18, 1883, recorded June 20, 1883. The certificate or statement was drawn in due form, executed by the persons named, and contained the following paragraphs :</p> <p>“ 2. The total amount of the capital of the said association is twenty-five thousand dollars ($25,000), payable in lawful money upon the execution hereof.</p> <p>“3. The amount of said capital subscribed for by each of the said parties is as follows, to wit: the said Samuel N. Stetler subscribes for eight thousand dollars ($8,000), the said Edward L. Fuller subscribes for eight thousand dollars ($8,000), and the-said Robert W. Archbald subscribes for nine thousand dollars ($9,000.)</p> <p>“ 4. The business to be conducted by the said association is the owning and leasing of mines and coal lands, and the mining, preparing, shipping, buying, vending, and marketing of anthracite coal, together with all matters incident thereto.</p> <p>“ 5. The business of the said association is principally to be conducted in the township of Lackawanna, county of Lackawanna, Pennsylvania.</p> <p>“6. The name of said association is “ The Amity Coal Company, Limited,” and the contemplated duration thereof is twenty years.”</p> <p>Then the plaintiffs, under exception noted for the defendants, showed by an examination of Fuller and Stetler, called as on cross-examination, that the defendants had no subscription list book, and neither of the defendants had ever signed any subscription list other than the articles of association; that none of the capital was paid in when the articles were recorded; that not all of the capital was ever paid in; that on November 17, 1883, defendant Strong bought of the company ten shares of stock which had been set aside for Thomas D. Davis, who did not take them, for which ten shares Strong paid $1,000 into the treasury of the company, and that on Decernber 15, 1883, Strong was elected a member of the company; that when he was elected, Strong inquired whether the stock was paid up or not, and “ we informed him we expected or intended to pay all stock whenever it became necessary, — the stock that was unpaid.” It was also shown that on November 24, 1884, Strong was elected one of the managers of the company, and paid other sums on his stock. The plaintiffs then proved that the bill of goods for which suit was brought was sold to the defendants between January 8, and February 17, 1885, when all of the defendants were members of the company, and rested.</p> <p>Thereupon the defendants moved for judgment of nonsuit assigning the following reasons:</p> <p>1. That the parties sued were associated as The Amity Coal Company, Limited, an organization organized under the act of 1874, by statement duly signed, acknowledged and recorded, as required by the act of assembly, and that such statement has not been shown to be untrue in any particular; and further, that the statement is all that is required by the act of assembly to protect the associates from being sued as general partners.</p> <p>2. That the claim in suit, according to the testimony of the plaintiff, was not charged to The Amity Coal Company, Limited, but to The Amity Coal Company; and that all the books of the plaintiff in evidence show that fact, that the partnership to whom the goods were charged was not the partnership against which this suit was brought.</p> <p>8. That if upon the face of the statement as filed and recorded, any inference is to be drawn, the stock subscribed had actually then been paid. That Theodore Strong, who afterwards purchased and had no knowledge to the contrary, was a bona fide purchaser of the stock of this association, and as such should be protected in his purchase, and could not be held as a general partner under any claim of a false statement of which he had no knowledge at the time he purchased his stock. That Theodore Strong, E. L. Fuller, S. N. Stetler, and It. W. Archbald, being all sued as partners forming one partnership under the name of The Amity Coal Company, Limited, if no recovery could be had against Theodore Strong, no recovery could be had in this suit against the other persons named as defendants.</p> <p>The court, Hand, P. J., allowed the defendants’ motion and entered judgment of nonsuit, with leave to the plaintiffs to move, etc.</p> <p>The motion having been argued, the court, Hand, P. J., on J uly 9, 1887, filed the following opinion and order :</p> <p>Rule to show cause why judgment of compulsory nonsuit shall not be stricken off, 1. As to Theodore Strong one of defendants ; 2. As to the other defendants.</p> <p>The presentation of this case was not made with that care and orderly arrangement of evidence and the law which the court have the right to expect on the part of counsel and which usually characterizes the learned counsel engaged in the case. In the confusion of questions and evidence we are however enabled to state the following which covers all the points raised by the counsel for the plaintiffs, viz.: that the defendants are each and all personally liable as members of a general partnership: 1. Because the certificate which they filed under the act of June 2, 1874, was false, because the capital stock had not been paid in when the certificate was recorded, and 2. Because they kept no subscription list book as provided in the last clause of § 2 of the act.</p> <p>$ % -#* * * *#• *</p> <p>The sole question for disposition in the case is, whether, as sought by the plaintiffs, a verdict and judgment on the evidence could be entered against these defendants as individuals. No verdict was asked against the association by name, and no amendment was asked to strike out the individual names and proceed against the association, with leave subsequently to ask for execution against individual stockholders as provided by the act. It is a question partly of the construction of the act on the merits of this controversy, and partly of practice.</p> <p>In regard to the merits the whole controversy turns upon whether the statement filed of record was a false statement. The alleged falsity of the statement turns wholly upon the construction to be placed on the words in clause 2 of the statement relating to the capital, viz.: “ payable in lawful money upon the execution hereof.” It is alleged that with this clause in the statement, the actual non-payment of the capital at the time it was recorded, made the statement false, and the whole proceeding or attempt under the act of 1874 a nullity so far as that act is concerned, and constituted the joint stock company, ever after that, a general partnership. On the other hand, it is asserted that there is no false statement; that the true and natural meaning of the words in law is, that the language fixed a time when the capital was due, and payment could be enforced both as among the subscribers and with creditors.</p> <p>Before we proceed to a consideration of the act itself, which is involved in the range the argument has taken, we first construe the clause in question. It will be observed that section 2 states that “ the total amount of the capital of said association is §25,000, payable in lawful money upon the execution hereof.” In section 3 each member “subscribes for eight thousand ” (or his amount) “ dollars,” and the evidence shows the statement filed is the subscription. The act does not require a payment at the time of subscribing; it requires a “subscribing and contributing” capital at some time. It leaves the matter of “ when and how ” the capital shall bo “ paid ” to be fixed in the statement filed. It makes provision for the collecting of unpaid subscriptions on the basis of the integrity of the organization, as an organization, in § 2 of the act. Such being the case, we apprehend, that no other construction is to be put upon the words “payable on the execution hereof,” than would be put upon the same words in articles of agreement, or a mortgage, or deed. It was never understood in an agreement or deed that “payable on the execution hereof” signified that the amount was actually paid by such execution, or was an acquittance to the vendee or grantee of such payment. It has no other significance than that the sum is “to be paid” on that event or day, and is no evidence of a fact accomplished. The statute requires that it shall be stated when the capital is “to be paid,” nor does the word “payable ” stand in any sense equivalent to “ paid.” Its legal meaning is that the amount becomes thereby due and its payment can be enforced.</p> <p>We can see no falsehood practiced on any person by the recording of the certificate without the payment of the money. Ordinarily the execution of an instrument of writing signifies the whole act by which the instrument becomes of force, its signature and delivery, or if a recording is essential to its existence and validity, also its being recorded. Be this as it may, in this case the act of assembly does not contemplate that the statement filed is evidence of when or how much of the capital stock is actually paid. That must be ascertained by the book or books kept by the association which are required for that purpose. One of the reasons, undoubtedly, why the law did not require the subscriptions to be paid up, in order to make the association valid, was that the capital might not be needed at once. No wrong would thereby be done to creditors, because they could ascertain how much was paid. In the case at ■bar, payment by Strong was made before the plaintiffs sold any goods to the association, and before, so far as this case appears, any business was transacted.</p> <p>It may be assumed without question that when all the requisites of the act of 1874 are complied with, and the statement contains truthfully those requisites, that a joint stock company with limited liability is formed, and that general liability is not incurred except under the provisions of the statute. This the statute expressly provides for. These requisites are, (1) that three or more persons shall sign and acknowledge duly a statement in writing; (2) which shall set forth the full names of such persons; (3) the amount of capital of such association subscribed for by each; (4) the total amount of capital and when and how to be paid; (5) the character of the business to be conducted, and the location of the same; (6) the name of the association with the word “ limited ” added thereto, as part of the same; (7) the contemplated duration of said association, which shall not exceed in any case twenty years; (8) the names of the officers selected in conformity with the provisions of the act. All these requisites are literally and strictly fulfilled in this charter. The statement is duly signed and acknowledged by three persons, their full names are set out, the amount of the capital is $25,000. Stetler subscribes for $8,000, Fuller, $8,000, and Archbald, $9,000. The capital is payable on the execution thereof, the business is clearly stated, the name is The Amity Coal Company, Limited, its business is to be conducted in the township of Lackawanna, in the county of Lackawanna, Pennsylvania, its duration is twenty years, and its officers are the three persons who form the association.</p> <p>Most of the argument in this case has been drawn from the decisions which relate to special partnerships, in which some of the partners are general and one or more are simply special. The associations organized under the act of 1874 are an entirely distinct class of, organized bodies. This is stated in the elementary works on partnership, and the decisions of our own courts. A limited liability is attempted to be secured to all the members and it is secured by fair, explicit and strict provisions, and in a way which when complied with not only protects the members, but protects all creditors who choose to avail themselves of the knowledge which the law and the books of the association give them of such associations. When the members are within the protection of the act, then it should be held as a shield to them, and creditors and members should be required to conform to the act in seeking these remedies at law. We have seen that this organization in its inception did comply with the act of assembly. The plaintiff, however, in commencing this action assumed, on the mere fact of non-payment of their subscriptions by Stetler, Fuller and Archbald, at the time stipulated and before the statement was recorded, that the whole organization was absolutely void as a limited liability association, both as regards themselves and Strong, who came in subsequently. The act itself pointed out clearly and equitably to all parties concerned, their mode of procedure for non-payment of the capital stock or subscription. They could have sued the association, recovered their verdict and judgment, and then on motion and a rule in case they failed against the association, they could have had their execution against the individuals for the non-payment of subscriptions or any part remaining unpaid. Their whole assumption, in this part of their case, rests on the false foundation that the mere non-payment of the subscription at the time stipulated, avoided the association and made a general partnership. This false foundation giving way, their whole superstructure falls with it. It is true that an attempt to form such a joint stock company, or a corporation, which contains a fatal defect, would avoid all proceedings under it and make the stockholders or members general partners ; it is also true that when a special or limited liability is set up as a defence, that the statute must be strictly followed which creates the limited liability; but when virtue is once given to an organization under the statute, and its integrity is untainted by technical or formal defects, then the limited liability is secured and remains, unless it is lost by a subsequent violation contemplated by the law itself. This general doctrine of special partnerships is clearly and emphatically laid down as a part of this act of 1874, and we shall discover by.an examination of the cases that so far as this act has come under construction by our higher court, the remedies have been pursued under the act of 1874, in every case where there was a substantial compliance in the organization.</p> <p>' This plaintiff sues the individual partners in the first instance. Section 2 of the act, expressly provides that “the members shall not be liable under any judgment, decree or order which shall be obtained against such association, or for any debt or engagement of such company, further or otherwise than is hereinafter provided.” What is further or otherwise-provided? 1. The collection of the unpaid subscriptions, to the extent of the portions respectively not paid up, and provision is made for the execution. And in order that the extent of the unpaid subscriptions may be ascertained, the court has full power to compel the production of books. And a “ subscription list book ” is required to be kept, of which we shall have something further to say. 2. The omission of the word “limited” makes each member participant in such omission liable personally. Section 3, act of May 1, 1876, P. L. 89, which is supplementary to the original act, and now part of it, provides that such association shall be sued in its association name.</p> <p>It will therefore be discovered that it is a logical legal conclusion that for the remedy here sought, viz.: the payment of a debt by an individual member because of the non-payment of his subscription, the act gives a full and complete remedy by suit against the association and then by execution, first, against it, and (if not successful) then by execution against the individual for so much of his subscription as is unpaid. No action can be maintained against the stockholders in the first instance, one or all; it not only is not provided for, but it thoroughly ousts the legal remedy provided. It also conflicts with the equity of that legal remedy, because the members may have paid in in unequal proportions. In the present action the evidence shows a full payment of stock by Strong, a large payment by Stetler, and possibly up to a certain date, none by the two others. A verdict and judgment in this action would be against Strong for the whole debt as well as against Stetler. It is perhaps to be regretted that the plaintiff did not ash to amend and save time by taking judgment against the association, but that is not now before us.</p> <p>We state the general propositions of law which seem to us to govern in associations of this kind. Where there is a totally defective organization never instinct with life under the statute, the members may bo sued in the first instance as a general partnership. When the association is once legally created, the remedies must be pursued as provided by the statute, when for non-payment of subscription, first against the association and then against the individual stockholders in default.</p> <p>In regard to the claim made that there was no “ subscription list book” kept, If this be true, which the plaintiffs have not shown, the act does not make the absence of that a cause of individual liability. The purpose (“for that purpose”) for which that book is to be kept is to aid the court to ascertain the truth in regard to the unpaid subscriptions. It was assumed on the argument by counsel that that book meant an original subscription by sign manual; the term does not so signify. From the evidence, Fuller testified that they considered their original subscription in connection with the stock Ledger, which he said “ showed the transaction,” made a subscription list book. From it he gave the whole data of subscribers’ stock and payments. The book was not formally put in evidence and we have its character only from Fuller’s testimony. We do not say that a separate book, perhaps made out by the secretary, and styled technically “ a subscription list book,” would not be the best mode of meeting this requirement, but the plaintiff has not clearly shown that this provision was not substantially complied with. Even if the other members were deficient in this respect, Strong is in no way chargeable with such neglect.</p> <p>w $ * & &</p> <p>In the case at bar every requisite of the act is complied with; the sole delinquency, which is a fact outside of the statement filed, and one contemplated by the act of assembly, is expressly provided for by the act of assembly. So far as this plaintiff is concerned, he has suffered no injury which is not expressly provided for under the act; lie shows no inquiry nor state of facts, which upon inquiry would not have furnished the exact information, as the evidence discloses, contemplated by the act, and upon which he has his legal remedy, as well by pursuing the remedy provided by the act as by a ■suit against defendants as general partners.</p> <p>We have deemed it important to enter upon the question of practice in this case, because the act of assembly is new in our commonwealth, and when properly understood one of great benefit both to members and creditors and the public at large. The act is taken mainly from English statutes on the same subject, and the decisions in the English courts, so far as we have been able to examine them, clearly point out the mode of practice and the remedies, as we have stated in the foregoing opinion and as are foreshadowed in the few cases which have arisen in this country. The law relating to this class of associations is distinctive, as already intimated, and they are classified as joint stock companies, both in English and American digests and opinions.</p> <p>We are satisfied upon the evidence in this case that the proper remedy is first against the association by name, and then, on proper evidence, by application to the court against the individuals, for execution of the judgment after failure to recover from the association. If this is correct, no verdict could have been taken against any of the individual members, and the nonsuit was properly entered.</p> <p>The rule to take off nonsuit as to Theodore Strong is discharged. Also the rule as to the other defendants, Stetler, Archbald and Fuller is discharged. Exceptions.</p> <p>Thereupon the plaintiffs took this writ, assigning for error:</p> <p>1. The order entering the judgment of nonsuit; and 2, the order discharging the rule to show cause why the judgment of nonsuit should not be vacated.</p>

<p>(a) In an action by an accommodation indorser against the maker, to recover the amount paid by plaintiff to lift a note from bank, an affidavit of defence averred that the note was made fraudulently, was without consideration, and that the plaintiff had knowledge of these facts when his indorsement was made.</p> <p>1. In such case, the plaintiff was not entitled to summary judgment under the procedure act of May 25, 1887, P. L. 271, because (1) his statement of claim did not aver that the bank was a bona fide holder of the note for value, and (2), even with such an averment, the protection afforded would not extend to a party to the original fraud.</p>

Nos. 129, 130, 131 January Term 1889, Sup. Ct.; court below, Nos. 171, 190, 191 September Term 1887, C. P. On August 3, 1887, a scire facias sur municipal lien No. 21 February Term 1887, was duly issued to No. 171 September Term 1887, wherein the city of Erie, for use of the Barber Asphalt Paving Co., was plaintiff, and “ A piece of land on Eighth street, John C. Brady, assignee of the German Savings Institution, owner or reputed owner,” was defendant.

<p>ERROR TO THE COURT OF COMMON FLEAS OF WARREN COUNTY.</p> <p>No. 410 January Term 1889, Sup. Ct.; court below, No. 6 December Term 1887, C. P.</p> <p>On August 5, 1887, H. A. Marlin brought assumpsit against S. W. Waters, filing with bis praecipe and declaration a statement of claim upon two promissory notes made by the defendant to tiie order of George R. Wetmore and indorsed to the plaintiff. The summons was made returnable to the first Monday of October, which was the third day of the month, and was served upon the defendant on September 15th, as sliowu by the docket entries printed, and September 18th, as stated in tbe History of the Case. On October 1st the defendant appeared by counsel.</p> <p>Rule 6 of the Rules of Court of Warren county is as follows: “ In all actions founded on book accounts, bills, notes, bonds. and other instruments of writing for the payment of money, and in all actions upon covenants or contracts for the payment of money, or for the performance of some other duty or thing of a specified cash value, whether under seal or not; in all suits upon recognizances, judgments, mortgages, mechanics’ liens and other records, and in actions of debt on foreign judgments and the judgments of justices of other states, if the plaintiff shall have filed a copy of the account or instrument of writing on which the suit is founded, with his declaration, on or before the return day of the writ, he shall be entitled to a judgment by default for the amount so claimed, at any time after twenty days from and after the return day of the writ, unless the defendant, or some one for him, knowing the facts, shall have filed an affidavit of defence in which the nature and character of the defence shall be clearly and specifically stated.”</p> <p>On February 17, 1887, plaintiff upon praecipe to the prothonotary caused judgment to be entered.</p> <p>On May 14, 1888, motion was made by the defendant to strike off the judgment thus entered for the reason that “no statement of the plaintiff’s demand was served upon the defendant before the return day of the summons, and no notice was given to the defendant or his attorneys of the filing of the plaintiff’s statement, as required by the act of assembly, approved May 25, 1887, in order to obtain judgment for want of an affidavit of defence.”</p> <p>On May 28,1888, the court, Brown, P. J., made the rule to show cause absolute, and ordered the judgment to be stricken off, for the reason assigned; exception: thereupon the plaintiff took this writ assigning said order as error.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE LANCASTER COUNTY.</p> <p>No. 72 July Term 1888, Sup. Ct.; court below, No. 9 May Term 1884, C. P.</p> <p>On April 19, 1884, John Rice, and five others, his brothers and sisters, brought ejectment against Daniel E. Rice, Jr., and Joseph S. Rice, to recover a tract of 63 acres in Bart township. Issue.</p> <p>At tlie trial on April 27, 1887, the plaintiffs showed title in Daniel Rice, Sr., their father, by deed dated March 23, 1875, for the consideration of $4,725; that Daniel Rice, Sr., had died intestate on April 15, 1884, leaving the parties to the suit on both sides as his heirs at law. The plaintiffs then rested.</p> <p>The defendants put in evidence a deed from Daniel Rice, Sr., to themselves dated July 25,1882, for a consideration expressed in the deed of $2,250, and that on the date of the deed Daniel E. Rice, Jr., had executed a bond conditioned for the payment of $60 annually to Daniel Rice, Sr., during his life, and after his death to his widow, for life, and that a like bond had been executed by Joseph S. Rice, with a like condition for the payment of .$76 annually.</p> <p>In rebuttal, the plaintiffs showed that on December 17,1888, proceedings in lunacy were instituted against Daniel Rice, Sr., and that on February 19,1884, there was a finding by the inquest that he was of unsound mind and had been for one year and nine months preceding the finding, that is from April, 1882.</p> <p>To meet the plaintiffs’ evidence as to mental incapacity, the defendants called a number of witnesses.</p> <p>Samuel Hughes, called for defendants :</p> <p>Mr. Brown: We propose to ask this witness to repeat the conversations that he had with Daniel Rice within a period of six months preceding April, 1882, the time of the stroke of paralysis, in which conversations Daniel Rice declared his intention to execute this conveyance to Daniel and Joseph, giving his reasons therefor, namely: that they had done more for him than his other children, and that he had spent enough on the other children, naming them.</p> <p>Objected to.</p> <p>By the court: Objection sustained; exception.1</p> <p>Henry Girvin, called for defendants :</p> <p>Defendants offer to prove by this witness that he knew Daniel Rice, Sr., intimately, for many years before his death, and in the year 1881, when Rice was unquestionably of sound mind, repeatedly heard him say that he, the said Daniel Rice, Sr., intended to execute a deed to the defendants for the property in controversy, giving his reasons for such intention.</p> <p>Objected to.</p> <p>By the court: Objection sustained; exception.8</p> <p>The same offer was made, to be supported by Ell wood Knox, called for defendants; objected to, and objection sustained; exception.3</p> <p>At the conclusion of the testimony, the court, Patterson, J., instructed the jury, who returned a verdict in favor of the plaintiffs for six eighths of the land in dispute. Thereupon the defendants took this writ, assigning as error:</p> <p>1-8. The refusal of defendants’ offers.110 8</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF LEBANON COUNTY.</p> <p>No. 271 January Term 1889, Sup. Ct.; court below, No. 1(5-4 September Term 1887, C. P.</p> <p>On September 8, 1887, Ellen T. Wagner brought statutory trespass against the township of Jackson, to recover damages for injuries to her person received when driving upon a public highway. Issue.</p> <p>At the trial on November 12, 1888, the testimony showed, in substance, that on July 9,1887, the plaintiff, with her sister and three children, were driving in a horse and buggy along a public highway called Mill street, laid out of the approved width of thirty-three feet. When near the village of Myers-town, the road going through an open and cultivated region, with no dangerous exposures, they passed a point where there had been a quarry opened at the side of the road. Stones had also been taken from the road-bed and piled alongside the traveled way for about twenty-live feet in length and at places several feet high, leaving, however, an unobstructed roadway of about fifteen feet in width to the water-way on the other side, though near the stone pile there was a hole or depression in the roadway caused perhaps by a washout.</p> <p>After the plaintiff had passed some distance beyond the stone pile, the horse, becoming frightened by the sight of a couple of donkeys, one of which -was iu a cart and the other running loose, stopped short, turned round suddenly, broke down the left front wheel of the wagon and started back, drawing the wagon on three wheels and the huh of the broken wheel. When the stone pile was reached, the hub of the broken wheel struck it, as a hind wheel dropped into the depression in the road-bed, when the wagon was overturned, the plaintiff thrown out and seriously, and, as was claimed, permanently injured. The plaintiff testified that she had nearly stopped the horse, and that she believed that if it had not been for this hole, she would have stopped him in a moment.</p> <p>The contentions of the parties sufficiently appear in portions of the charge to the jury, McPherson, J.:</p> <p>Just what the precise situation then was, there is some dispute about, and the jury must determine it from the evidence. One side testifies that the horse was under perfect, or substantially perfect, control; that it could easily have been guided and restrained ; that the wheel being off on the left, or north side, would act as a brake, and make it more easy to control the horse; and that therefore, from that and the other circumstances in the case bearing upon the condition of things at that time, the plaintiff was negligent, either in not stopping the horse before they came to this pile of stones and the washout in the road, or, having come to or near that point, in not turning the horse away so as to avoid either or both of these obstructions in the road.</p> <p>Now, that is of course a very important question. It is submitted to the jury for their determination as one of the important questions in the case. That is, entirely aside of the negligence of the township, was the plaintiff upon her part guilty of negligence which helped to bring about this accident —negligence which contributed to this accident? Was she careless herself ?.....</p> <p>So, taking all the facts into consideration; the facts that these women, with the children, were doubtless in a position of danger, and that there was a great deal in their situation to alarm them, and alarm them seriously — taking all these matters into account, the jury must decide, as I say, whether the plaintiff was guilty of doing anything, or omitting to do anything, which contributed to her accident or injury. If she was, she cannot recover.</p> <p>If, however, you find that she did everything which in the circumstances ordinarily prudent persons would have done, then you come to the question whether the township has been negligent; that is, whether the supervisors have been negligent ; because the case rests upon their doing or not doing, as the case may be. The supervisors are the officers in charge of the roads, and the township is responsible for their negligence with reference to the roads.</p> <p>A country road differs in some respects from a road that runs through a town. It is not necessary that a country road should be kept in a condition to be traveled from one side to the other. That would cause to townships an expense which in many cases, in most cases, indeed, they are not able to bear. There is no such requirement in our statutes, and no such rule of law. It is enough if a township keeps a sufficient portion of the road, the centre of the road, in good order, so that it can be traveled upon, and free from obstructions. Just how wide that portion ought to be is of course something that I cannot lay down to you, and it has never been laid down. It is not said, for instance, that there should be at least fifteen feet in the middle of the road, or that there should be at least twenty feet, or that ' ten feet is sufficient. The rule is that there must be a sufficient portion for ordinarily safe and convenient travel, upon the particular road and at the particular place. For instance, to illustrate that, a road that is unfrequently traveled — suppose one or two times a day — would properly get along with less care and with less of the road in order for travel, than a road over which vehicles were constantly passing. You can see that of course for yourselves without any further discussion of the matter. . . .</p> <p>It is said here that that was not the case; that a portion of the road was obstructed by a pile of stones, and also by a washout, or hole, as it has been called; and those are the important matters in the case bearing upon the question of the negligence of the supervisors. I withdraw from the consideration of the jury entirely any question with reference to the stone quarry, and the degree to which it may or may not have encroached upon the road. In my judgment, that has nothing to do with the case. I do not see that it has been shown to have contributed to the accident in anyway; and therefore, as I say, I instruct you to entirely disregard any testimony in the case with reference to this quarry being within the limits of the road. Just leave the quarry out of view entirely, and confine your attention to the pile of stones and the washout.</p> <p>There is varying testimony with regard to this particular obstruction ; as to the size of the pile of stones, and as to the depth, length and breadth of the hole. The jury must in the first instance find from the testimony, as best they can, taking the weight of it, what these obstructions really were; how high, how broad, and how long was the pile of stones ? So, with regard to the washout; how deep was it, and what was its position in the road ? I understand it to be substantially-agreed that it was in the traveled portion of the road, but the jury must determine. As I understand, the pile of stones was right along the side of the traveled track; and, quite near the foot of the pile, in the track of the road, was the washout; then came the track of the road a distance as to which the witnesses are not entirely agreed; then came the gutter, then the sidewalk, and finally the south hue of the road.</p> <p>Having determined the position and size of these obstructions, the jury must then decide whether they did unreasonably obstruct the road. Did they leave the rest of the road sufficient for the safe and convenient use of the public ? If they find that they did not, then there would still be another question in the case; and that is the knowledge of the supervisors of their existence, and their failure to remove the stones or to fill up the hole. Because, although it might be that obstructions in the road made the road unsafe and inconvenient for travel, it would not follow that the township was responsible. It would still be necessary to show that the proper officers were in fault in neglecting to put things in their proper order......</p> <p>I will briefly go over the steps at this point. You must find in the first place that the plaintiff was not guilty of contributory negligence. Then you must find that this road was unreasonably obstructed. Then you must find that the unreasonable obstruction of the road was due to the neglect of the supervisors. If you find any of those facts against the plaintiff, she has no case. If you find them all in her favor, then you come to a further point as to which there is little or no question: What directly caused her injury? You must find that her injury was caused by one of these obstructions.</p> <p>Both sides agree that the overturning of the buggy, which was the immediate physical cause of her injuries — that, in connection with the stones, or wherever she fell; the jury will determine where it was — that the overturning of the buggy was caused either by the hole or by the stones; so that the jmy, I take it, will have no difficulty in finding that her injuries were the result of contact with the stones or with the hole.</p> <p>If they decide that to be so, having found all the other matters to which I have alluded against the township, then they would come to the question of damages......</p> <p>Those are some points to be answered. The plaintiff’s points are as follows [inter alia] :</p> <p>1. The township authorities are bound to keep the road in good condition, free from obstruction, so free that even a skittish horse may be employed without danger.</p> <p>Answer: This is affirmed, although in a country road the whole width need not be kept in such condition.</p> <p>2. If the injury of the plaintiff was caused by the township authorities not maintaining the road of sufficient breadth, or by improperly allowing excavations in the road, or by permitting dangerous holes to remain in the road, or by all or several of those causes combined, without proof of concurrent negligence on the part of the plaintiff, the plaintiff is entitled to recover.</p> <p>Answer: The question of improper excavation in the road is not in the case, and that clause is stricken from the point. Thus modified, it is affirmed.1</p> <p>8. If the plaintiff was in the exercise 'of ordinary care and prudence, and the injury was caused by the insufficiency of the road, combined with some accidental cause, the defendant is liable, and the plaintiff is entitled to recover.</p> <p>Answer: This is affirmed, if the insufficiency of the road arises from the defendant’s negligence.8</p> <p>4. If the jury believe that the injury to plaintiff resulted from the hub of the wheel striking the pile of stones, or running into a hole or excavation in the road, as described by the plaintiff, concurrently with the accidental fright of the horse and the breaking of the wheel of the buggy, the plaintiff is entitled to recover, unless the defendant can show contributory negligence on the part of the plaintiff.</p> <p>Answer : The facts suggested are left to the jury; the question of negligence is for them. But I may say here, in partial answer to that point, what I omitted to say in the charge, that although no doubt the accident of the horse taking fright was one of the causes, that in my judgment would not relieve the defendant from liability in case the township officers, the supervisors, had been guilty of neglect which helped to bring the injury about. Of course, if the horse had not run away, no accident would have happened. If the jury find from the evidence, that if it had not been for the neglect of the supervisors also, the accident would, not have happened, then the township would he responsible, although the accident of the runaway may have been a partial cause. If there were then two causes contributing to the accident and the injury, namely, the accident of the runaway, for which nobody was to blame, and the carelessness of the supervisors, then the township would be responsible for the carelessness of the supervisors, although it was only one of the causes tending to bring about the, injury.</p> <p>The defendant’s points are these [inter alia] :</p> <p>1. That if the jury believe that the horse driven by the plaintiff frightened at a donkey on the public highway, after having passed the stone heap on the public road, and turned round and broke the wheel of the buggy in which she was riding, and the horse then ran away and, with the buggy thus injured, with the loss of a front wheel, was run against the stone heap and caused injuries, the township is not liable, and the plaintiff cannot recover.</p> <p>Answer: This is refused. The jury must decide whether the supervisors were negligent in their care of this road, and, if so, whether their negligence was one cause of the injury. If it was one direct cause of the injuiy, the township would be liable, if the plaintiff herself was not guilty of contributory negligence.3</p> <p>2. That if the jury believe that a sufficient portion of the road (being a country road) at the place where the plaintiff was thrown out of the buggy was kept in good condition for travel, the plaintiff cannot recover.</p> <p>Answer: As a general proposition, a country road need not be kept in condition for travel from side to side. A sufficient portion of the middle only need be kept in smooth condition and safe and convenient for travel. The jury must decide whether at this point the road was negligently obstructed. If it was not, the plaintiff cannot recover.</p> <p>3. If the jury believe that the horse was frightened by the donkey and in turning round broke the wheel of the buggy, and on account of this broken wheel that side of the front part of the buggy axle was on the ground and prevented the driver from guiding the horse to the right in order to avoid tbe stone heap, or if they believe that the driver had lost control of the horse, then the plaintiff cannot recover.</p> <p>Answer: This is refused.4</p> <p>5. If the jury believe that the horse driven by the plaintiff frightened at something on the road not a defect in the highway, and which the supervisors were not bound by law to remove, and the injury resulted from the horse running away through such fright, the plaintiff cannot recover.</p> <p>Answer: If this means that the injury resulted solely from the horse running away, it is affirmed; but if it means that there could be no recovery, even if the injury was caused in part by the negligence of the supervisors, it is refused.5</p> <p>6. That under all the evidence in the case the plaintiff is not entitled to recover.</p> <p>Answer: This is refused.6</p> <p>The jury returned a verdict in favor of the plaintiff for S3,000. Judgment having been entered, the defendant took this writ, assigning for error :</p> <p>1, 2. The answers to the plaintiff’s points.4 8</p> <p>3-6. The answers to the defendant’s points.3 *° 6</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OK ERIE COUNTY.</p> <p>No. 366 January Term 1889, Sup. Ct.; court below, No. 50 May Term 1887, C. P.</p> <p>On February 27, 1887, the road commissioners of LeBoeuff township presented a petition in the name of the commonwealth setting forth that in 1836 proceedings were had in due conformity with the law, by which it was established that a county bridge was necessary over French creek at the crossing of the road from Waterford to Union; that said bridge had been duly constructed by the then county commissioners, and had been maintained ever since, the repairs in recent years having been made by the township; “ that said bridge had been partially destroyed by floods, freshets and ice so far undermining one of the piers thereof as to make it necessary that the same should be immediately rebuilt; ” that the petitioners had called upon the commissioners of Erie county to rebuild and reconstruct said bridge, so that it would be fit and safe for public travel, but they had refused so to do; praying the court to grant a rule on said commissioners to show cause why a man-' damus should not issue, etc.</p> <p>To the rule granted, the commissioners of Erie county answered that they had no knowledge that the bridge in question had ever been entered as a county bridge, and denied “that said bridge has been partially destroyed by floods, freshets and ice so far undermining one of the piers thereof as to make it necessary that the same shall be immediately rebuilt; ” averring that “ whatever damage it has suffered has been the natural wear and tear from constant use and the gradual wearing of the stream against its piers, and is not within the meaning of the act requiring county bridges to be reconstructed by the commissioners of the county.”</p> <p>Testimony having been taken and filed by Mr. Ira U. Briggs, appointed examiner for the purpose, an agreement was entered into by which trial by jury was dispensed with and the cause submitted to the decision of the court upon the testimony filed.</p> <p>On August 8, 1888, the court, Gunnison, P. J., filed a decision, which was as follows :</p> <p>FINDINGS OF FACT.</p> <p>The testimony disclosed the following material facts :</p> <p>Upon the petition of a number of the inhabitants of LeBceuff township, representing that a bridge was much needed over French creek in said township, where the public highway from Waterford to Union Mills, crossed said creek, and that the erection of said bridge would require more expense than it was reasonable the said township should bear, the Court of Quarter Sessions, on May 5, 1836, ordered a view, under the provisions of § 21, act of April 6, 1802, 3 Sm. L. 520, which provided the manner of establishing and erecting county bridges.</p> <p>No record of the report of the viewers then appointed, or of the action of the Court of Quarter Sessions, grand jury, or county commissioners thereon, can be found. But, that upon the report of the viewers it appeared to the court, grand jury and commissioners, that such bridge was necessary, and would be too expensive for the township to erect, and that it was thereupon established as a county bridge, appears from the subsequent records and papers which were offeredin evidence. By them it appears that on December 28,1836, the county commissioners contracted with William Boardman and Calvin Avery to erect the bridge for §870. On October 17, 1837, the commissioners presented their petition to the Court of Quarter Sessions, setting forth the prior proceedings, and that the bridge had been completed agreeably to the contract, and praying for the appointment of six fit persons to inspect the said bridge, etc.; whereupon the court appointed six fit persons as prayed for, five of whom reported November 6, 1837, that they had inspected the bridge and the workmanship thereof; that it had been built and finished according to the agreement, and was a permanent and substantial structure. It must be taken therefore as proved that the bridge was a county bridge.</p> <p>The testimony as to the present condition of the bridge i * somewhat conflicting. But from it all I find that the abutments of the bridge, especially the east one, are in a dangerous condition; that this condition is partly the result of natural wear and tear, and partly the result of the action of the water and the floods and ice ; and that they have become partially undermined by the current of the stream, the bed of which has become lower, exposing the wood foundation under the stone abutments at low stages of water to the action of the atmosphere, causing it to become decayed to such an extent as to cause the settling of the abutments. This settling has been gradual for a few years past and the abutments are now, partly in consequence of the settling and partly from the action of the frost, floods and ice, cracked, bulged out towards the stream, with some of the stone washed out, and in need of thorough repairs. I cannot find, however, that the particular damage done by floods and ice amounts to the destruction, partial destruction, or blowing down of the bridge, within the meaning of the act of May 5, 1876, P. L. 112. Floods and ice contributed, with the other causes I have named, to gradually affect the abutments and render the repairs necessary.</p> <p>CONCLUSIONS OK LAW.</p> <p>Having found as a matter of fact that the damage to the bridge caused by floods and ice did not amount to such destruction or partial destruction as is contemplated by the act of 1876, requiring in certain cases the county to reconstruct or rebuild county bridges, it follows that the provisions of that act do not apply to this case.</p> <p>The question then is, is there any liability imposed upon the county to repair, aside from that imposed by that act ?</p> <p>By the act of April 13, 1843, P. L. 221, it was enacted, “ That, from and after the passage of this act, it shall be the duty of the county commissioners of the several counties of this commonwealth to repair all bridges erected by the county, and to pay such expenses out of the treasury in the usual manner,” excepting as to certain counties named. By the act of April 6, 1854, P. L. 295, the exemptions of the counties mentioned in the act of 1843 from liability to repair county bridges, was extended to the county of Erie. Each of these acts is entitled : “ An act supplementary to an act entitled ‘ an act relating to roads, highways and bridges,’ ” which is the title of the act of June 13th.</p> <p>The Supreme Court in construing an act repealing the act of 1843 so far as it extended to Crawford county, in Howe v. Crawford County, 47 Pa. 361, held that the act of 1843 imposed upon the county the duty of repairing only such bridges as were erected under the act of 1836, to which it was a supplement; that the repeal of that act as to Crawford county relieved it from the duty of repairing such bridges only; that the bridge in question in that case having been built in 1820, under the provisions of the act of 1802, the duty of repairing it was imposed upon the county by the judicial proceedings of 1820, by which it was established as a county bridge, “ and it was a continuing duty the repeal of the act of 1843 in nowise affected.”</p> <p>It was strenuously argued by the counsel for the defendants, upon the authority of Commonwealth v. Monroe County, 2 W. & S. 495, in which the Supreme Court held that “when a county bridge has been once legally built, such ordinary repairs as are necessary to preserve it fit for use are to be made by the supervisors of the township, as in the case of roads,” and expressly concurred in the opinion of the court below, “ that the county only erects bridges when the township is unable to do it, and in no case repairs bridges after they are erected,” that the county is not liable for any repairs to any county bridge excepting such as are within the meaning of the act of 1876.</p> <p>If the decision in Howe v. Crawford County had not been since rendered, I would be inclined to agree with this construction. But as I understand that case, which is a later utterance of the Supreme Court upon the question, [the liability here depends upon whether' this bridge was originally erected under the act of 1802 or the act of 1836. If under the former, the county is liable; if under the latter, it is not liable.] a</p> <p>In the case of Howe v. Crawford County, the bridge was clearly erected under the act of 1802. In this, the proceedings were begun prior to the passage of the act of June 13, 1836, P. L. 555, and completed after it went into effect, which was September 1, 1836. The order for the original view was made May 5, 1836. There is a hiatus in the record from that date until October 17,1837, when on the petition of the county commissioners six fit persons were appointed to inspect the bridge and workmanship thereof, and make report, etc. There is no record of the report of the viewers appointed May 5, 1836, nor of the action of the court, grand jury and commismissioners thereon. In the absence of such record, it must be presumed that the proceedings were regular and timely: Omnia prsesumuntur rite esse acta. In due course, the report should have been made to the next term of the court following the appointment of viewers, and the action of the court, grand jury and commissioners thereon taken at the same time. The next term began on the first Monday in August, 1836, which was prior to the time prescribed for the act of 1836 to take effect. If the report of viewers was then made, and it then appeared to the court, grand jury and commissioners that such bridge was necessary, and would be too expensive for the township to erect, the act provided that it should be entered on record; and its character as a county bridge then became established.</p> <p>The proceedings in 1837 were supplementary to the fixing of this character upon it.' That such was the action is apparent from the subsequent proceedings, although the record of it is missing. That it was had at that time, before the act of 1836 took effect, must be presumed.</p> <p>It may well be questioned whether, if the report of the viewers, with the finding upon it, was had after September 1, 1836, the proceedings would not be considered as under the act of 1802, the original view having been ordered under that act. The repealing clause of the act of 1836 is as follows: “ All laws hereby altered or supplied so far as are inconsistent with this act are hereby repealed.” But the act of 1802 was not inconsistent with the act of 1836 in respect of the proceedings to be taken in constructing county bridges. In opening roads there was a change in the manner prescribed; but in respect to county bridges the provisions in the two acts were substantially identical, so that the act of 1802 was not expressly repealed in that respect, nor was it by implication. “ When a late statute is repugnant to a former one only in part, it repeals the former one only so far as the repugnancy extends, and leaves all the remainder in force : ” In re Contested Election of Barber, 86 Pa. 392; see also Erie v. Bootz, 72 Pa. 196; The Hickory Tree Road, 43 Pa. 139; Spring Garden Road, 48 Pa. 144; Uwchlan Township Road, 30 Pa. 156.</p> <p>[Being of the opinion that the bridge was established as a county bridge under the act of 1802, it follows under the authority of Howe v. Crawford County, that the duty of repairing it devolves on the county of Erie.] 3</p> <p>As to the extent of the repair necessary, the testimony is conflicting. Whether the abutments should be taken down and rebuilt, or whether they can be made safe without rebuilding, is not clear. It seems to me better that the commissioners should exercise their discretion after a thorough examination, than that they be explicitly directed by mandamus to rebuild them as is prayed by the plaintiff in its petition.</p> <p>The court is requested by the plaintiffs to find as matter of law, that if the bridge in question is a county bridge, it was and is the duty of the county commissioners to keep the said bridge in safe condition a,nd good repair, at the expense of the county of Erie.</p> <p>Answer: Having found the bridge to be a comity bridge under the act of 1802, the point is affirmed.1</p> <p>DECREE.</p> <p>And now Aug. 6, 1888, I find for the plaintiff and against the defendants. The prothonotary is directed to give notice of this finding to the parties or their attorneys, and if no exceptions are filed hereto within 80 days after service of such notice, let judgment be entered by the prothonotary hereon, that a peremptory mandamus be awarded against the county commissioners of 'Erie county, commanding them to repair the bridge in the plaintiffs’ petition mentioned.</p> <p>Exceptions to the decision filed in behalf of the defendants having been dismissed, and judgment entered, the defendants took this writ, assigning as error:</p> <p>1. The answer to the plaintiffs’ point.1</p> <p>2, 3. The conclusions of law embraced in [ ] 8 3</p>

<p>1. Where the sheriff’s vendee of real estate against which there was a subsisting mortgage, assumed the mortgage debt after the sale by giving his own mortgage for its amount, whereupon the original mortgage was satisfied, the transaction on its face is confirmatory of other evidence sustaining the contention of claimants upon the fund, that the property was sold subject to the original mortgage.</p> <p>2. Upon the petition of the committee of an habitual drunkard, exhibiting an itemized account of his costs and praying that the court approve and order the payment of the same, a decree was made and entered upon the judgment docket that the estate of the drunkard pay said costs: such order was in the nature of a final decree in equity for the payment of money, and had all the effect of a lien from its entry in the judgment docket.</p>

from: the decree of the court of common PLEAS OF LANCASTER COUNTY. Nos. 391 January Term 1889 and 93 July Term 1889, Sup. Ct.; court below, No. 12 January Term 1888, E. D., C. P. On December 25, 1845, Abraham Herr died, testate, leaving a widow and nine children.

<p>(a) A testatrix devised a house and lot to her three daughters, subject as follows: “It is my will and desire that my said daughters shall have the use and benefit of my said house and lot, jointly, so long as they shall remain single and unmarried, but in case either of my said daughters shall marry, 1hen such daughter shall forfeit her right to the use and benefit of my said real estate, and the use and benefit of the same shall inure to the benefit of my remaining unmarried daughters or daughter, during their natural lives or the life of the survivor of them.</p> <p>(6) “ It is further my will that the survivor of my unmarried daughters shall have the right to dispose of my said house and lot by will or otherwise, but in the event that either of my said daughters should die unmarried, then the share of such daughter in the said real estate shall descend to my remaining single or unmarried daughters or the survivor of them. Should all of my said daughters marry, then the property shall be sold by them or the survivors of them and the proceeds shall be equally divided among them or their legal representatives.”</p> <p>(c) The testatrix bequeathed and devised, also, “ all the restand residue ” of her estate to her said three daughters. One of said daughters died, intestate, unmarried and without issue, leaving her two sisters, also two brothers and children of a deceased brother, to survive her. Subsequently, the two surviving sisters, who were both unmarried, uniled in conveying the house and lot for a full consideration.</p> <p>1. In such case, the two surviving sisters were vested with a valid fee simple title to the premises devised, and their deed conveyed such a title to their grantee.</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF LANCASTER COUNTY.</p> <p>No. 348 January Term 1889, Sup. Ct.; court below, No. 3 January Term 1889, C. P.</p> <p>On December 8, 1888, a case stated was filed wherein Hannah McElligott was plaintiff, and D. R. McCormick was defendant. The facts presented were as follows:</p> <p>Jeremiah McElligott, of the city of Lancaster, died on November 11, 1875, leaving to survive him a widow, Anna McElligott, and two children, Hannah McElligott, the plaintiff above named, and Thomas F. McElligott, and also a brother, Daniel McElligott, and two sisters, Honora McElroy and Mary Studdard, after having made his last will and testament, bearing date August 17, 1875, duly proven, wherein and whereby he devised and bequeathed, inter alia, as follows, to wit:</p> <p>“ First. I direct all my just debts and funeral expenses to be paid and satisfied by my executrix hereinafter named, as soon as conveniently may be after my decease.</p> <p>“ Item. I give, devise and bequeath unto my beloved wife Anna, for and during her natural life, all my property, real, personal and mixed, of what nature and kind soever and wheresoever the same shall be at the time of my death.</p> <p>“ Item. After the death of my wife Anna, I give and bequeath unto my friend Daniel A. Altiek, five thousand dollars in trust, the interest thereof annually to be paid to my son Thomas for and during his natural life.</p> <p>“Item. After the death of my son Thomas, it is my will, and I direct the said sum of five thousand dollars to remain in the hands of said Daniel A. Altiek until the child or children of Thomas shall arrive at the age of twenty-one years, when the same shall be equally divided among such child or children ; and in case the child or children of my said son Thomas shall die before arriving at the age of twenty-one years, then, and in that case, I order and direct that the said sum of five thousand dollars be paid to my daughter Hannah, or her heirs and assigns.</p> <p>“ Item. The rest, residue and remainder of my estate, real, personal and mixed, after the death of my said wife Anna, I give, devise and bequeath to my said daughter Hannah, her heirs and assigns.</p> <p>“ Item. In case my said daughter Hannah should die without child or children, then it is my will, and I order and direct that my estate be equally divided between my brother, Daniel McElligott, of the city of Lancaster, and my sisters, Honora McElroy, wife of Peter McElroy, of the city of Brooklyn, in the State of New York, and Mary Studdard, wife of John Studdard, of the city of St. Louis, in the State of Missouri, and their heirs and assigns, share and share alike.”</p> <p>Anna McElligott, the widow, died in the year 1882. The daughter, Hannah McElligott, on December 7, 1888, entered into articles of agreement with the said D. II. McCormick for the sale of a portion of the real estate, being a lot of ground situate on the east side of Water street (No. 47), in the city of Lancaster,.....and in said articles the said Hannah Mc-Elligott did covenant and agree to make, execute and deliver to the said D. 11. McCormick a good and sufficient deed for the proper conveying and assuring of the above-described premises, in fee simple, and free from all incumbrance.</p> <p>If the court be of opinion that the said Hannah McElligott is so seized of the above-described premises, as that she can convey an indefeasible title, in fee simple, in execution of said agreement to the said D. ft. McCormick, his heirs and assigns, free and discharged of all trusts of any kind, then judgment to be entered for the plaintiff for the sum of nine hundred dollars, with stay of execution to April 1, 1889; but if not, then judgment to be entered for the defendant.</p> <p>The costs of this suit in either event, it is agreed, shall follow the judgment, and both parties reserve the right to sue out a writ of error.</p> <p>On January 19,1889, the court, Livingston, P. J., filed an opinion wherein, after discussing the different provisions of the will, and citing and considering Smith’s App., 23 Pa. 9; Manderson v. Lukens, 23 Pa. 31 ; Rewalt v. Ulrich, 23 Pa. 388 ; Letchworth’s App., 30 Pa. 175 ; Burd v. Burd, 40 Pa. 182 ; Womrath v. McCormick, 51 Pa. 504 ; Fahrney v. Holsinger, 65 Pa. 388 ; Braden v. Cannon, 1 Gr. 60 ; Middleswarth v. Blackmore, 74 Pa. 414 ; Caldwell v. Skilton, 13 Pa. 152 ; Biddle’s Est., 28 Pa. 59 ; Fulton v. Fulton, 2 Gr. 28 ; Mickley’s App., 92 Pa. 514 ; Fitzwater’s App., 94 Pa. 141 ; Lewin v. Killey, L. R. 13 App. C. 783, the court concluded:</p> <p>In the will before us, Hannah McElligott was the daughter, the only daughter of the testator, and therefore, by nature, as well as first taker, the principal object of his bounty. He devises her an absolute estate, and to us it appears that he did not intend she should have a less or restricted estate in case she was living at the death of his wife, who had a life interest in it, the time when the devise to her would become operative. There is no unequivocal intent shown in the will, that he meant that she should take a less estate, but rather that there should be no restriction, for, on the happening of a certain contingency, he gives her absolutely the $5,000 set apart in trust for his son.</p> <p>The law favoring an absolute, rather than a defeasible estate, a vested rather than a contingent estate, we are of opinion that the proper construction of the will before us is, that the testator meant and intended that his daughter Hannah should take and have an absolute estate in fee simple in the property devised to her, provided she was living at the time of the decease of his wife, the first taker, to whom he had given a life interest therein. And, that having been alive at the death of the widow, the termination of the particular or life estate, she took and now holds an absolute estate in tee simple in the property devised to her, and, having and holding such absolute and indefeasible title, being so seized in the premises described in the contract or agreement made part of this case stated, she can convey the same in fee simple, free and discharged from all apparent trusts, or trusts contained in the will of the testator, or elsewhere.</p> <p>And we, therefore, in pursuance of the requirements of the case stated, now enter judgment for the plaintiff for the sum of $900 with stay of execution until April 1,1889.</p> <p>The defendant thereupon took this writ, specifying that the court erred:</p> <p>1. In deciding that Hannah McElligott took an absolute indefeasible estate in fee simple, under the will of her father.</p> <p>2. In not deciding that there was an executory devise over, in case Hannah should die without child or children.</p> <p>4. In entering judgment for the plaintiff on the case stated.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE LANCASTER COUNTY.</p> <p>No. 358 January Term 1889, Sup. Ct.; court below, No. 22 May Term 1887, C. P.</p> <p>On April 1, .1887, John O’Ferrall, trading as John O’Ferrall & Co., obtained judgment before a magistrate against Samuel Moore and Eugene M. Haines, for 8293.92, from which judgment the defendants took an appeal. In the Court of Common Pleas the plaintiff, on April 23, 1887, declared on a note for 8400, dated September 7, 1886, with the common counts. At the foot of the narr was the memorandum: “ 8400 less f 114.29,” and the following statement in addition:</p> <p>“ Amount of plaintiff’s demand 8285.71</p> <p>Cost of protest, etc., 2.51</p> <p>Interest from December 9,1886 -”</p> <p>On the same day the plaintiff filed an affidavit of claim setting out a copy of the note with a credit indorsed of 8114.29, and claiming a balance of 8285.71, with interest from December 9, 1886, and 82.51 costs of protest.</p> <p>The defendants pleaded, non-assumpsit, payment, payment with leave and set-off.</p> <p>At the trial on February 8, 1888, before Livingston, P. J., the plaintiff put in evidence the note with its indorsement and rested.</p> <p>The defendants showed that the note was given in part payment for fruit cans which defendant Moore had purchased from the plaintiff, and offered evidence to the effect that Moore had suffered damage by reason of the defective character of the cans furnished, loss on fruit, delay, overcharges, etc., and as to cash paid by defendants in excess of the credits allowed. When footed up the items of damage and credit claimed by the defendants, upon the evidence, aggregated 8442.81.</p> <p>The plaintiff adduced testimony in rebuttal of defendants’ case, and when the case was closed on the evidence, “ Mr. Hensel, on behalf of plaintiff, requested the court to withdraw from the jury all evidence offered by the defence in support of a set-off, as the total amount of set-off exceeded $300, a sum beyond the jurisdiction of the justice of the peace from whom this case comes into this court on an appeal; and to instruct the jury to find a verdict for the plaintiff for the full amount of his claim.”</p> <p>The court declined to withdraw the testimony of set-off from the jury, and to instruct the jury as requested by plaintiff’s counsel. Exception to plaintiff.</p> <p>While the case was with the jury, by leave of the court, the plaintiff amended his narr by declaring for $285.63, instead of $400.</p> <p>The jury returned a verdict in favor of the plaintiff for $22.63. A rule for a new trial having been discharged, by opinion filed, Livingston, P. J., the plaintiff took this writ, specifying that the court erred:</p> <p>1. In not withdrawing from the jury all evidence offered by the defence in support of a set-off after it appeared that the total amount of set-off claimed exceeded three hundred dollars.</p> <p>2. In not withdrawing from the jury all evidence offered by the defendants except so much as related to payment and overcharges.</p> <p>3. In not giving binding instructions for the plaintiff for his whole claim, except so much as was shown to have been paid or to have been based on overcharges.</p> <p>4. In not giving binding instructions for the plaintiff for the full amount of his claim.</p>

No. 285 January Term 1889, Sup. Ct.; court below, No. 8 January Term 1889, E. D., C. P. On November 23, 1888, a rule was granted to sbow cause wby an alias fieri facias issued by John Feagley against Jacob H. Norbeck and Jacob Miley, trading as Norbeck & Miley, to No. 8 January Term 1889, E. D., should not be set aside.

<p>ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNT r.</p> <p>No. 428 January Term 1887, Sup. Ct.; court below, No. 486 September Term 1884, C. P. No. 1.</p> <p>On September 20, 1884, Frank E. Ogle, administrator of Mary F. Ogle, deceased, brought assumpsit against Jacob D. Heft, surviving partner of Jacob D. Heft and Harry S. Ogle, trading as Heft & Ogle, to recover the sum of $5,000 alleged to have been loaned by the decedent to the firm of Heft & Ogle on May 2, 1873, less the sum of $45 paid on September 25,1878, on account of the interest. The defendant pleaded, non-assumpsit, payment, payment with leave, set-off, and the statute of limitations.</p> <p>At the trial on February 9, 1887, before Biddle, J., it was made to appear that Mary F. Ogle, the plaintiff’s intestate, died in July, 1876, leaving to survive her four children, Maria S., Harry S., Frank E. and Caroline Ogle. Harry S. Ogle was a member of the firm of Heft & Ogle, and had died after the death of his mother. Letters of administration upon his mother’s estate were granted to Frank E. Ogle.</p> <p>Plaintiff called Maria S. Ogle as a witness to prove the loan. Being a daughter of the decedent, her competency as a witness was objected to, when there was produced the following paper:</p> <p>“Know all men by these presents, that I, Maria S. Ogle, do hereby for myself, my heirs, executors, and administrators, absolutely release, assign, transfer, and discharge unto Frank E. Ogle all my right, title, and interest of whatsoever kind, either in law or equity, of, in and to any sum or sums of money, which may be recovered in or which may result from the action of Frank E. Ogle, administrator, against Jacob D. Heft, surviving partner, now pending in the Court of Common Pleas No. 1, of September Term 1884, No. 486, and do discharge him from any liability or accountability to me in any form whatever, for any sum or sums of money which may be recovered in said action.</p> <p>“ Witness my hand and seal the twentieth day of September, A. d. 1884.</p> <p>[Signed] Maria S. Oguk. [L. S.] ”</p> <p>The witness testified that there was no other agreement between herself and her brother than the writing produced, and that she had then no interest in the moneys sought to be recovered.</p> <p>The objection being renewed, it was overruled and the witness admitted to testify, generally; exception.1</p> <p>The defendant, to show that no money had been loaned by the decedent to the firm, but that her son, Harry S., had had the book-keeper place to her credit $4,850 which the firm had borrowed from one Hartley Shoesmith and had repaid to him, offered in evidence a check for $1,000, dated July 9, 1879, drawn by Heft & Ogle, to the order of and indorsed by Shoe-smith, as proof of repayment of part of such loan.</p> <p>Objected to; offer refused; exception.8</p> <p>The jury returned a verdict in favor of the plaintiff for $9,115.88. A rule for a new trial having been discharged, the defendant took this writ, assigning for error:</p> <p>1. The admission of plaintiff’s offer.1</p> <p>2. The refusal of the defendant’s offer.8</p>

No. 86 January Term 1888, Sup. Ct.; court below, No. VI December Term 1888, G. P. Ou October 12, 1883, W. C. Garey brought trespass against N. K. Woodward to recover the value of 11,941 feet of hemlock lumber alleged to have been taken and sold by the defendant. At the trial on May 27, 1887, it was made to appear that in May, 1883, the plaintiff Garey bad brought replevin against one O. A. Seeley for 60,500 feet of hemlock lumber at Dusbore Switch, a shipping place.

No. 338 January Term 1888, Sup. Ct.; court below, No. 221 December Term 1886, C. P. On October 15, 1886, Daniel Vanhorn, Benjamin Griffin, Charles M. Vanhorn and David H. Roberts, trading as Van-horn, Griffin & Co., brought assumpsit against James Corcoran and Byron L. Richards, late doing business as Corcoran, Richards & Co., and a number of other persons and copartnerships, together doing business under the name of the Luppert & Kline Furniture Company, Limited, to recover…

PROM THE DECREE OE THE ORPHANS’ COURT OE PHILADELPHIA COUNTY. No. 214 January Term 1889, Sup. Ot.; court below, No. and term not given. On February 8, 1887, the Harmony Lodge, I. O. O. F. No. 16, filed an appeal from the decree of the register of wills of Philadelphia county, admitting to probate the will and codicil of Edmund C. Wiseman, deceased; praying for an issue devisavit vel non in respect of the codicil to said will.

No 230 July Term 1889, Sup. Ct.; court below, No. 256 September Term 1887, Q. S. On September 7,1887, the grand jury returned as a true bill an indictment charging that on, etc., at, etc., the Wilkes-Barre and Kingston Street Railway Company, a body corporate, etc., “ unlawfully did erect, set up, establish, maintain, keep up, and continue, and still do keep up and continue a certain common and public nuisance, to wit: by unlawfully obstructing by means of the railway track…

No. 113 January Term 1889, Sup. Ct.; court below, No. 198 February Term 1887, C. P. On March 2, 1887, a declaration in the common counts was filed in an action of assumpsit brought by William H. Hind-march against Edward Hoffman, claiming the sum of 1400.

<p>ERROR TO THE COURT OE COMMON PLEAS OE ERIE COUNTY.</p> <p>No. 406 January Term 1889, Sup. Ct.; court below, No. 156 November Term 1885, C. P.</p> <p>On March 24,1886, W. O. Colt declared in covenant against George Moore, surviving R. G. Moore, charging the breach of a contract under seal dated May 1, 1880, whereby George and Robert Moore, trading as Moore Brothers, agreed to sell to William O. Colt their interest and good will in an omnibus business between Waterford and Waterford station, together with certain property, for the sum of $150, payable in instalments, the contract containing the following clause:</p> <p>“ And the party of the first part are not to engage in, or use their influence in opposition to the party of the second part, in the passenger, mail or express business in any manner or form. And each party is hereby held and fully bound in the sum of three hundred dollars for the faithful fulfilment of the above contract.”</p> <p>The damages were laid at $600. The defendant pleaded the general issue.</p> <p>At the trial on December 13, 1888, it appeared that in August, 1884, one S. E. Dewey obtained a contract from the Post Office Department for carrying the mails between Waterford borough and Waterford station, on the Philadelphia & Erie Railroad, and established an omnibus line to carry passengers and packages between said points. George Moore, the defendant, was employed by Dewey as manager of the line, at the wages of $50 per month. Claiming that the employment of George Moore constituted a breach of his covenant, the plaintiff brought this suit.</p> <p>William O. Colt, the plaintiff, testified that the defendant solicited passengers for his employer; sometimes he would carry five or six a day, sometimes fifteen or twenty; his name was painted on the omnibus as manager:</p> <p>Q. What damage has Mr. Moore’s breach of the contract been to you in carrying passengers and express matter between Waterford borough and Waterford station?</p> <p>Objected to, if it is to give a measure of damages to the jury.</p> <p>By the court: Objection overruled, evidence admitted; exception.1</p> <p>Q. State the amount of it ?</p> <p>Objected to, as incompetent.</p> <p>By the court: Objection overruled, evidence admitted; exception.1</p> <p>On cross-examination, the witness testified that he had kept a memorandum of the number of passengers carried by the defendant on each day.</p> <p>At the close of the case on the testimony, the court, Gunnison, P. J., charged the jury in part as follows:</p> <p>[The counsel for the defendant asks the court to charge you that the limit of the damages that the plaintiff can sustain is the $300 fixed in the agreement as a penalty, or as the sum in which each one became bound for the0 fulfilment of the contract. That is not the view the court takes of the contract. It is a question which is to be decided from a construction of the contract itself. The parties could make an agreement that in ease of a violation by either party the party violating it should forfeit the sum of $300 to the injured party; but that is a question to be determined by the contract itself and by its language. Now, the language of the contract itself is directly contrary to that theory. It says: “ Each party is hereby held and firmly bound in the sum of three hundred dollars for the faithful performance of the above contract.” That makes it a penalty; not as liquidated damages. A man who is appointed a tax collector and gives a bond in a penalty of $1,000, conditioned for the faithful collection and accounting of the taxes, that is not the amount that he is bound to pay in case he violates his duty. If he collects $2,000 of taxes and does not properly account for it, the officials of the county could recover from him the full $2,000 notwithstanding the penalty in his bond was only $1,000; and, if the penalty in his bond was $1,000 and he collected all but $500, all that they could recover from him would be tbe $500. So in this case, the penalty is not the measure of damages. In these cases, in an action of covenant, you should give to the plaintiff the actual damages that he has sustained by reason of the violation of the contract, if such a contract wras actually delivered and consummated.</p> <p>Now, on that subject the testimony does not entirely agree. The testimony of some of the witnesses is that the bus which the defendant drove went to the station at every train, and some of the witnesses say they took on an average some five or six passengers a day, and that the fare was fifteen cents for each passenger. I think the driver of the bus said it was fifteen cents without any round trip fares. It seems to have been the practice in Waterford to charge fifteen cents for a ride one way and twenty-five cents both ways, and the driver said when he drove the bus there were no round trip fares; and he tells you, I think, that the number he carried averaged five or six each day each way, but he does not pretend to be accurate in that respect. He keeps no account of it and gives only his estimate, but that estimate is proper evidence. On the other hand, the plaintiff says that he kept an account of the amount of fares received by the defendant on each' day during this time ; he don’t know exactly what amount was received, but he says he knows the amount that he should have received from the passengers that he saw carried, and that the amount is $580.</p> <p>The measure of damage would be the amount that he suffered by reason of the violation of the contract, and the evidence of that amount would be the number of passengers that the defendant carried and the amount of fares that he would receive, so that that would be proper for you to consider in estimating the damages, if you find for the plaintiff.] 8</p> <p>The jury returned a verdict in favor of the plaintiff for $602.42. A rule for a new trial having been discharged, the defendant took this writ, assigning as error :</p> <p>1. The admission of plaintiff’s offers.1</p> <p>2. The portion of the charge included in [ ] 8</p>

414 January Term 1889, Sup. Ct.; court below, No. 121 May Term 1885, C. P. On March 18, 1885, Albert Frantz brought case against the Lake Shore & Michigan Southern Railway Company, to recover damages for personal injuries alleged to have been caused by the negligence of defendant company’s employees. Issue.

<p>ERROR TO THE COURT OF COMMON PLEAS OF WARREN COUNTY.</p> <p>No. 221 January Term 1889, Sup. Ct.; court below, No. 24 December Term 1887, C. P.</p> <p>On September 30, 1887, S. J. Benedict brought replevin against Boyd Marsh for certain saw-mill machinery of the value of $1,107. The defendant pleaded non cepit, property in himself, with leave, etc.</p> <p>At the trial on October 5, 1888, it was made to appear that in 1887 and prior thereto A. R. Kilburn was the owner of land on which he had erected a steam saw-mill. The structure was a building erected over a small stream of water, upon sills leveled by being sunk into the ground on each side of the stream. The engine was set on a block, imbedded in the ground and bolted to the sills. The boiler was placed near by on a stone foundation. A frame was made of 2x4 stuff, and covered with boards.</p> <p>On January 26, 1887, Benedict obtained judgment against Kilburn, which became a lien upon the land on which the mill was erected. Execution was issued upon the judgment, and the land was sold on September 26, 1887, to Benedict. After the sheriff’s sale, Boyd Marsh, the defendant, removed the engine, boiler and machinery from the mill and from the land, when Benedict brought this suit.</p> <p>The defendant introduced testimony to show that on June 6, 1887, Kilburn, being in debt to Wm. L. Marsh, defendant’s father, for $1,000 borrowed money, transferred the mill to Marsh by bill of sale in writing, who then transferred it to the defendant. The two Marshes and Kilburn went to the mill and the defendant was put in possession.</p> <p>N. J. Whitcomb called by defendant:</p> <p>Defendant proposed to show by the witness that the witness and Mr. Kilburn, in December, 1885, went to Mr. Benedict (the plaintiff) and stated to him that he, Kilburn, wished to purchase a portable saw-mill, one that could be moved on to several tracts of land that he had, and from one to another, for the purpose of cutting timber, and that he purchased the mill in question for that purpose.</p> <p>Objected to as incompetent and irrelevant.</p> <p>By the court: Objection overruled; exception.1</p> <p>A. W. Day, a sawyer upon the mill, called by defendant:</p> <p>Q. Did you have any conversation with Mr. Kilburn in the winter of 1886, as to what he was going to do with this mill after finishing the timber on the Flatt lot ?</p> <p>Objected to as incompetent and irrelevant.</p> <p>By the court: Objection overruled; exception.8</p> <p>The testimony of the witnesses admitted under these offers, appears in the opinion of the Supreme Court.</p> <p>The court, Brown, P. J., after stating the facts, charged the jury:</p> <p>The case then stands in this way: If the mill with its necessary equipments was personal property at the time Wm. L. Marsh bought it, then the judgment of Mr. Benedict was not a lien, and the verdict should be for the defendant. But, on the other hand, if the mill was a part of the real estate, then your verdict should be for the plaintiff. That is where the question is in this case. What was the character of the mill and its equipment ? Was it a part of the real estate ?</p> <p>We say to you, as making a distinction between the owner of land and a tenant, if the owner of land erects a saw-mill on his own land as the evidence shows Mr. Kilburn did, the mill becomes real estate provided it is in its character a permanent structure. And by permanent we mean one whose character itself indicates permanency; when it is built in the manner in which persons building saw-mills usually build permanent mills; a structure that would be immovable without taking down and destroying its character as a mill. If, in this case, the structure was of such a permanent and substantial nature, it became real estate; and we say to you, that if in its character it is permanent, it cannot be changed by evidence showing that Mi-. Kilburn, when he built it, intended to remove it from the tract when the timber on it should be exhausted. There are many structures in the way of manufacturing that probably it is intended at some indefinite time in the future to remove, when the material necessary to their operation has become exhausted. But that intention, we say to you, does not change the essential character of the property itself. The intention of Mr. Kilburn cannot affect it. It is the character of the mill itself for permanency that determines its character as realty. What was the character of the mill in this case? Was it a permanent structure? Was it of a character, like a portable mill upon wheels, that it could be moved, or was it in its nature permanent? If it was, we say to you that it was real estate, and the plaintiff is entitled to a verdict. We repeat, that the mere intention of Mr. Kilburn to remove it when the timber was exhausted, would not change the character of the mill itself.</p> <p>The plaintiff requests the court to charge :</p> <p>1. That the mill, being erected by Kilburn on the land owned by Mm, is presumed to be real estate.</p> <p>Answer: We say to j'ou that this depends upon the question whether the mill was a permanent one; if it was a permanent structure, although Mr. Kilburn may have intended to remove it at some future time, it was real estate, notwithstanding the intention of Mr. Kilburn.</p> <p>The defendant requests the court to charge :</p> <p>1. The plaintiff, S. J. Benedict, cannot recover in this case unless the jury find from the evidence and believe that A. R. Kilburn intended that the boiler, engine, mill and machinery should be permanent and a part of his land.</p> <p>Answer: We answer this point by saying, as we have said in the general charge, that the intention of A. R. Kilburn would not affect the question, if the building was a permanent building.</p> <p>2. If the jury believe that the boiler, engine, mill and machinery were not intended by A. R. Kilburn to be permanent and a part of his land, the verdict should be for the defendant.</p> <p>Answer: We answer this point by saying, that notwithstanding Mr. Kilburn may have intended the mill to remain only for a time when there was a supply of timber, yet if the building itself was a permanent structure, it was real estate. Otherwise, if it was not a permanent structure, not of a substantial, permanent kind, but in its character movable, then it would be personal property, and the verdict should be for the defendant.</p> <p>8. If the jury believe that the mill and machinery was a mere temporary structure, to be again moved to other tracts, after the timber on the land upon which the mill was erected was exhausted, then it was personal property and the verdict should be for the defendant.</p> <p>Answer: This point is affirmed in connection with the instructions that we have given you as to what constitutes a permanent structure.</p> <p>4. If the jury believe that the mill and machinery was personal property, and not a fixture, the verdict should be for the defendant.</p> <p>The jury returned a verdict in favor of the defendant. A rule for a new trial having been discharged, the plaintiff took this writ, assigning for error:</p> <p>1, 2. Tlxe admission of defendant’s offers.1 8</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE "WARREN COUNTY.</p> <p>No. 40 January Term 1889, Sup. Ct.; court below, No. 40 December Term 1886, C. P.</p> <p>On October 6, 1886, Laura Encbes brought case against -the New York, Lake Erie & Western Railroad Co., to recover damages for personal injuries charged to the negligence of the defendant company’s employees. Issue.</p> <p>At the trial on May 14, 1888, the case made, as was claimed, by the testimony on the part of the plaintiff, was as follows: On August 21, 1886, the plaintiff with her mother took passage on a local train of the defendant company from Bear Lake, in Warren county, to Columbus, in the same county.</p> <p>When tbe train was approaching Columbus station, tlie call of the station was heard by the plaintiff, and she was also acquainted at tlie place. The plaintiff and her mother prepared to leave the train, and as soon as the train stopped they proceeded to alight, were hindered somewhat near the door by incoming passengers, but went out and down the steps of the ear. The mother, being ahead, stepped off upon the platform safely, but when tbe plaintiff, following her, was on tbe last step of the ear, tbe train was started witb a sudden motion wliioli threw tbe plaintiff across and upon tbe station platform, causing serious personal injuries. Tbe stop of tbe train at the station was from half a minute to a minute.</p> <p>Tlie defendant introduced tlie testimony of a number of witnesses, to the effect that the stop at the station was for the usual time at that station; that there were several passengers, three or four at least, who had alighted, and the passengers waiting at the station had entered the cars, before the train started; that after the train began to move, the plaintiff and her mother came out on the forward platform of the ladies’ car, the mother ahead and the plaintiff following close after, and the mother started down the steps; that the brakeman warned them not to try to get off, but to let bim pass up and lie would stop the train; that the ladies kept pressing their way down, and, finding they were about to jump, the brakeman assisted the mother to alight, and while he was so doing the plaintiff jumped and was thrown upon the platform.</p> <p>The court, Brown, P. J., after stating the facts, charged the jury:</p> <p>The plaintiff bases ber right to recover on the allegation of negligence on the part of the defendant, and the burden of proof is on her to sustain such allegation by the weight of evidence. If she has not done so she ought not to recover. If she has, then your verdict should be in her favor, unless it further appears that the plaintiff herself was also guilty of such negligence and want of care as essentially contributed to ber injury. It is tbe law that, although tbe defendant may have been guilty of negligence and want of care in the management of its cars, yet if the jury are satisfied that the plaintiff was also negligent and careless, and with her negligence and carelessness contributed in any degree to tbe injury, she cannot recover.</p> <p>The first question for you to answer, from the evidence, is, were the employees of the defendant company guilty of negligence in the starting of the train, on which the plaintiff was a passenger and from which she was making her exit at the time of the accident? It is the duty of a railroad company, engaged in the business of the transportation of passengers, to conduct them safely, and to make stops of a sufficient length of time to enable the passengers, using due diligence and proper care, to alight with safety. The claim on the part of the plaintiff is that the defendant was guilty of negligence in this, that the train was not stopped a sufficient length of time to enable the plaintiff, with ordinary care and with reasonable expedition, to alight safely.</p> <p>The law does not prescribe how long a train of cars shall be stopped to enable passengers to depart. The length of time must depend upon the particular circumstances of the case of which the jury are to judge. What would be negligence under given circumstances, might not be under others. Passengers alighting from a train at a station where a large number get on and off, should, manifestly, be given more time than those alighting at a station where only a few passengers get on and off.</p> <p>The rule that we lay down for your guidance, is, that if the train at the time of the accident to the plaintiff, taking into consideration the number of persons to alight at Columbus station, and the number on the platform to take passage, stopped a sufficient length of time to enable the plaintiff, using reasonable care and reasonable expedition, to leave with safety, then the defendant is not chargeable with carelessness, and the plaintiff should not recover.</p> <p>On the other hand, if, taking all the circumstances into account, such sufficient length of time was not given, then the defendant was guilty of carelessness; and, if the plaintiff, without fault on her part, sustained injury as the consequence of such carelessness, she is entitled to a verdict.</p> <p>If you find that the plaintiff is entitled to a verdict, it will be your duty to ascertain what amount of damage in money will compensate her for such injuries and infirmities as the evidence shows is attributable to the want of care on the part of the employees of the railroad.....</p> <p>The defendant requests the court to charge:</p> <p>1. The plaintiff cannot recover unless the defendant was negligent in not stopping the train a sufficient length of time to enable her to get off safely, and the burden of proving such negligence is on the plaintiff.</p> <p>Answer: Affirmed.</p> <p>2. If the jury believe that the train was stopped a sufficient length of time to enable the plaintiff to get off, with a reasonable exercise of diligence on her part, there is no negligence to bo attributed to the defendant, and the plaintiff is not en-entitled to recover.</p> <p>Answer: Affirmed.</p> <p>8. If the plaintiff was hindered by incoming passengers until the train started, it was her duty to remain on the train, and any attempt to get off after the train was in motion was at her own risk and peril.</p> <p>Answer: Affirmed.</p> <p>4. If the jury believe, from the evidence, that the plaintiff undertook to get off the train after it began to move, she is guilty of contributory negligence and cannot recover.</p> <p>Answer: This point, as a legal proposition, applicable to the evidence in the case on trial, is refused; but we refer it to you to find, from the evidence, and taking all the circumstances into consideration, whether the plaintiff, in attempting to get off the train, was guilty of such negligence or want of care, as contributed to the injuries complained of; if she was, she is not entitled to recover.1</p> <p>5. If the jury believe that the plaintiff attempted to get off after the train was in motion, in disregard of the warning of the brakeman not to, she was guilty of negligence and cannot recover.</p> <p>Answer: This point is refused, as applicable to the evidence in the case on trial; but if you find that the plaintiff attempted to get off the train after it was in motion, and if, taking all the circumstances into account, you find that this attempt was such an act of negligence and imprudence on her part as contributed to her injury, then she cannot recover.3</p> <p>The jury returned a verdict for the plaintiff for $7,750. A rule for a. new trial having been discharged, the defendant took this writ, specifying that the court erred, inter alia:</p> <p>1, 2. In the answers to defendant’s points.1 3</p> <p>3. In its general charge to the jury, by giving undue prominence to the plaintiff’s allegations of the negligence of the defendant, and by obscuring or overlooking the contributory negligence of the plaintiff.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE WARREN COUNTY.</p> <p>No. 165 January Term 1889, Sup. Ct.; court below, No. 93 December Term 1887, C. P.</p> <p>On June 1, 1887, on an appeal from the judgment of a justice of the peace, in an action brought by John M. Fair against the First National Bank of Warren, the plaintiff filed bis statement of claim, setting forth that tbe defendant bank bad held a judgment for $625, entered in the Court of Common Pleas of Warren county, against Frank O’Connor and Edward Reid; tliat this judgment was given to secure six notes, aggregating $625, which said bank had discounted for O’Connor and Reid, and it was a lien upon a certain tract of land in said county; tliat subsequent to its entry tbe plaintiff purchased said land from O’Connor and Reid, and paid the full purchase price thereof, iii ignorance of tbe existence of this lien ; that before the issuing of the execution mentioned below, O’Connor and Reid had paid to the bank “ $300, which was to apply'on the said judgment,” paying off three of the notes to secure which the judgment was given, “ and which should have been credited on said judgment, as of the dates the same were paid,” but that no credit was ever entered on tbe judgment for said $300 ; that subsequently an execution was issued on said judgment and tbe land purchased by Fair from O’Connor and Reid was levied on and sold as the property of the latter; that at the time of the sale there remained due to the bank upon the judgment, as debt and interest, the sum of $335 only, but the bank received from tbe sheriff the sum of $461.35, tbe balance of proceeds of sale after paying costs, of which balance the sum of $126.35 belonged to the plaintiff Fair, “ who was the owner of said land, subject to what was justly due on said judgment; ” that no claim for this was made at the time by plaintiff, because he was unaware that anything had been paid on the judgment, but, as soon as he learned of the payment of the $300 above mentioned, he demanded of the bank the sum of $126.35, and interest thereon, payment of which was refused.</p> <p>An affidavit of defence made by the cashier of the defendant bank and filed, averred that the money paid to the defendant by the sheriff, and claimed by the plaintiff, “ was made by the said sheriff upon lawful process, issued from this court against Frank O’Connor and Edward Reid for that purpose, and paid to the defendant by the said sheriff; that the said money was received by the said defendant upon the indebtedness to it from said O’Connor and Reid, and that the same did not pay all their indebtedness to said bank, but there was still a balance due it from them, which has been paid since by indorsers.”</p> <p>A rule taken for judgment for want of a sufficient affidavit of defence, was made absolute, November 17, 1888, Brown, P. J., delivering the opinion:</p> <p>The defendant had a judgment against O’Connor and Reid. After the entry of the judgment the plaintiff purchased from O’Connor and Reid certain real estate on which defendant’s judgment was a lien, but in ignorance of that fact he paid the full amount of the purchase money. The defendant issued execution on its judgment, by virtue of which said real estate was sold, and the proceeds paid to defendant.</p> <p>The plaintiff alleges that at the time of the sheriff’s sale he did not know that anything had been paid on defendant’s judgment against O’Connor and Reid, and hence did not make any demand on the sheriff for the amount of the proceeds of sale belonging to him; that afterwards he learned that O’Connor and Reid had paid the defendant on its judgment the sum of $300 which had not been credited; that of the proceeds of the sale of the said real estate the defendant received the sum of $461.35, when it was only entitled to $335; that for the difference of $126.35 he made demand on defendant for payment which was refused.</p> <p>The statement of plaintiff’s claim sets forth in substance the facts recited, and the affidavit does not deny them. It does not deny the allegation in plaintiff’s statement that the defendant had received from the proceeds of the sheriff’s sale 1126.35 more than was due on its judgment, but asserts that the money was received on the indebtedness to it of O’Connor and Reid, and that it did not pay all their indebtedness, “ but there was still a balance due it from them, which has been since paid by indorsers.” We think the affidavit is insufficient, and the rule to show cause why judgment should be entered against defendant is made absolute.</p> <p>Judgment having been entered in favor of the plaintiff for $159.62, the defendant took this writ, specifying that the court erred:</p> <p>1. In entering judgment against the defendant for want of a sufficient affidavit of defence.</p> <p>2. In holding that the plaintiff could recover upon the cause of action set forth in his statement.</p>

<p>CERTIORARIS TO THE COURT OF QUARTER SESSIONS OF ERIE COUNTY.</p> <p>Nos. 200, 201 July Term 1888, Sup. Ct.; court below, Nos. 36, 37 May Term 1888, Q. S.</p> <p>At May Term 1888, of the Court of Quarter Sessions of Erie county, Louis Marz and George Gehrlein were convicted of burglary. During their trial they set up the defence that they were intoxicated at tbe time the crime was committed, and testified that they were minors, and that one of them, Marz, got beer at A. J. Tuttle’s saloon, and both drank at Carlson’s. Carlson and Tuttle had each been granted a license to sell liquors at retail under tbe act of May 13, 1887, P. L. 108. The court at once, May 26, 1888, entered a rule upon both Carlson and Tuttle to show cause why their respective licenses should not be revoked, returnable May 29,1888.</p> <p>On June 26, 1888, tbe court, Gunnison, P. J., filed the following opinion:</p> <p>carlson’s license.</p> <p>Tbe act of May 13, 1887, § 7, P. L. 110, provides that “ upon sufficient cause being shown, or proof being made to tbe said court, that the party bolding a license has violated any law of this commonwealth relating to the sale of liquors, the Court of Quarter Sessions shall, upon notice being given to the person so licensed, revoke the said license.”</p> <p>Upon the trial of Commonwealth v. Marz and Gehrlein at the May Sessions of the court, it appearing from the testimony that C. M. Carlson, the respondent in this rule, had sold beer to minors, this rule was entered, notice given him, and a hearing had at which the testimony of witnesses for and against the rule was heard. If that testimony showed a violation of the law on the part of the respondent, the portion of the section quoted makes it mandatory upon the court to make this rule absolute.</p> <p>The respondent was sworn, and admitted in his testimony, that he sold beer to the two minors in question. His excuse was that their appearance indicated that they were of full age; and that as a precaution before selling he asked their age, and each responded that he was of full age; that he sold to them in good faith, fully believing them to be of full age.</p> <p>It may be conceded that the weight of the evidence is to the effect that he was ignorant of the fact that the boys were minors, and that he did not wilfully violate the law; and, if ignorance of fact, or the absence of intention to violate the law, will avail as an excuse, the rule should be discharged.</p> <p>By § 17, of the act of 1887, it is enacted, “ That it shall not be lawful for any person, with or without license, to furnish by sale, gift or otherwise ” “ any spirituous, vinous, malt or brewed liquors ” “ at any time to a minor,” etc. Under a literal reading of the section, there was undoubtedly a violation in this case. The act of selling, irrespective of intention, constitutes an offence under a strict construction of the language used by the legislature.</p> <p>Ignorance of fact is, in many cases, admitted as an excuse, as showing the absence of a criminal intention. In other cases, the rule is different. The distinction is thus laid down by Greenleaf: “The rule ” (i. e., that ignorance of fact will excuse), “ would seem to hold good, in all cases where the act, if done knowingly, would be malum in se. But where a statute commands that an act be done or omitted, which in the absence of such statute might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, it seems, will not excuse its violation. Thus, for example, where the law enacts the forfeiture of a ship having smuggled goods on board, and such goods are secreted on board by some of the crew, the owners and officers being alike innocently ignorant of the fact, yet the forfeiture is incurred., notwithstanding their ignorance. Such is also the ease in regard to many other fiscal, police, and other laws and regulations, for the mere violation of which, irrespective of the motives or knowledge of the party, certain penalties are enacted; for the law, in these cases, seems to bind the party to know the facts, and to obey the law, at his peril: ” B Green!. Ev., § 21. Measured by this standard, it would seem that ignorance as to the age of the persons to whom the liquor was sold, was no excuse. The law is of the class recited by Professor Greenleaf, in which such a rule obtains.</p> <p>That the legislature intended the mere fact of selling to a minor to constitute the offence, irrespective of intention or good faith, is, I think, apparent upon a review of its legislation upon this subject. The act of May 8, 1854, § 1, P. L. 668, enacted “ that wilfully furnishing intoxicating drinks by sale, gift or otherwise ” “ to a minor ” “ shall be held and deemed a misdemeanor,” etc. By the second section of the act of April 17, 1867, P. L. 89, it was enacted that “no person shall sell, give away, or dispose of any strong or spirituous liquors, wines, ale, beer, or any intoxicating drinks to ” “ any person under twenty-one years of age ” without the consent of parent or guardian, etc. By the eleventh section of the act of April 12, 1875, P. L. 42, it was enacted “ that it shall not be lawful for any person, with or without license, to sell,” etc., “ at any time to a minor.” And lastly, by § 17 of the act of May 13, 1887, P. L. 113, it was enacted “ that it shall not be lawful for any person, with or without license, to furnish by sale, gift or otherwise ” “ any spirituous, vinous, malt or brewed liquors ” “ at any time to a minor.”</p> <p>It will be seen that by the act of 1854, a necessary element to constitute the offence, was that the sale should be wilful. By each of the succeeding acts cited, the sale is made unlawful, the word “ wilfully ” being omitted, and no other word of similar import being used. This change must have been intentional. Whether or not the act of 1854 was, upon experience, found to permit too easy an opportunity for evading the law, it is not necessary to inquire. The succeeding legislation effected a change, by which the question of good faith and criminal intention became unimportant in determining the question as to whether or not there had been a violation of the law. Sales to minors whether wilfully or ignorantly are equally prohibited. It follows that, the law having been violated, it becomes the clear duty of the court to revoke the license in this case.’</p> <p>The rule to show cause is made absolute. [Exception.]</p> <p>TUTTLE’S LICENSE.</p> <p>The facts in this case are similar to those in the rule to show cause why the license of C. M. Carlson should not be revoked. For the reasons given in the opinion filed in that case, the rule to show cause in this case is made absolute. [Exception.]</p> <p>Thereupon the respondents severally took these writs assigning the orders of the court making the rules absolute as error.</p> <p>On March 27, 1889, it was agreed by counsel in writing that, “ As no notes of testimony were taken at the hearings of the above cases except the notes taken by the court; and as the facts proven are clearly set forth and stated in the opinion of the court filed in the case of C. M. Carlson, No. 36 May Sessions 1888, it is agreed that said notes of the testimony taken by the court may be omitted from the paper books of appellant, using instead the findings of facts as stated in said opinion of the court.”</p>

<p>[To be reported.]</p> <p>1. Replevin will lie for an inclined plane connecting a railroad with defendant’s ore mines, and located partly on land belonging to defendant, which was built by the plaintiff under an agreement that the defendant should have the use of it for a certain compensation during a determinate period, and which at the expiration of the period the defendant refused to deliver to the plaintiff.</p> <p>2. An agreement to pay a compensation for the use of a structure erected upon land, being prima facie inconsistent with ownership thereof by the person so agreeing, is evidence against him of a title to the structure in the person who is to receive the compensation, even though, as to the land occupied, the latter were tenant and the former landlord.</p>

<p>ERROR TO THE COHET OF COMMON PLEAS OF FAYETTE COUNTY.</p> <p>No. 374 January Term 1889, Sup. Ct.; court below, No. 137 June Term 1886, C. P.</p> <p>On April 5, 1886, Belford J. Tuit brought ejectment against Laura E. Smith for a certain house and lot in New Salem, Pa. The defendant pleaded, not guilty.</p> <p>At the trial on October 8,1888, before Ewing, J., the plaintiff offered in evidence a deed to himself from Sarah Smith, under whom both parties claimed, dated August 29,1885, conveying the property in dispute, and rested.</p> <p>The defendant then offered in evidence the following paper: “ The last Will and Testament of Sarah Smith, of the township of Menallen, in the County of Fayette, State of Pennsylvania: I, Sarah Smith, considering the uncertainty of this mortal life and being of sound mind and memory do make and publish this my last will and testament in manner and form following :</p> <p>“ First. It is my will that all my just debts and funeral expenses, including good, decent tombstones, together with the proving of this my last will and testament, be first paid by my executor hereinafter named out of my estate.</p> <p>“ Second. I will and bequeath to Laura E. Smith all my real and personal property of whatsoever kind or nature, including house and lot that I purchased of William M. Jones in town of New Salem, adjoining lands of Jacob Allamon, Caleb Antram and others. I desire that the above described property, after the settlement of all my just debts, heretofore mentioned, shall be for his kindness and care toward me in sickness and in health, in watchfulness and care during all my natural life, and at my decease the aforesaid property shall belong to the said. Laura E. Smith, his heirs or assigns with all rights, liberties and hereditaments, forever and forever.</p> <p>“ Third. It is my will and desire that the said Laura E. Smith have possession of my house on first day of November, 1884, and he take me with him and that he take care of me as one of his own family.</p> <p>“ And lastly, as to all the rest, residue and remainder of my personal estate, goods and chattels of what kind and nature soever, I give and bequeath the same to Laura E. Smith, his heirs or assigns forever, hereby revoking all former wills by me at any time made.</p> <p>“ Lastly, I do hereby nominate and appoint George W. Hess executor of this my last will and testament. In witness whereof 1 have hereunto affixed my hand and seal this 81st day of October, a. d. 1884. Sarah Smith, [sisal.]</p> <p>“ Signed, sealed and published by Sarah Smith to be her last will and testament in the presence of us who at her request and in her presence have subscribed our names as witnesses thereto. Eltas II atfueld.</p> <p>Gisorgk W. IHsss.”</p> <p>Defendant’s counsel: “Now, we offer this paper, being a written declaration of Sarah E. Smith, to be followed by evidence that under this paper and in pursuance of it the defendant in this case took possession of the property now in dispute and is still there, and that Sarah Smith herself moved into the premises with him in pursuance of the intention stated in this paper and there remained for a long time, and that the defendant has at all times performed his part of the agreement indicated in this paper. Of course it all goes together. We don’t offer this paper alone. This paper as a will would have no significance at all, but we offer the paper as the declaration of the plaintiff’s grantor showing that she had agreed that her title should pass from her at her death, the paper being executory.”</p> <p>The entire offer was objected to as incompetent and irrelevant. Sarah Smith, the testatrix in the foregoing paper was alive and in the court room at the time of the offer.</p> <p>By the court: Objection sustained,'offer refused; exception.8</p> <p>The defendant offering no further testimony, the court instructed the jury that under the evidence their verdict should be for the plaintiff.</p> <p>The jury returned a verdict for the plaintiff as directed. A rule for a new trial having been discharged, judgment was entered, when the defendant took this writ, assigning as error:</p> <p>2. The refusal of defendant’s offer.8</p>

<p>[To be reported.]</p> <p>1. The act of January 24, 1849, P. L. 677, prohibiting an execution sale of a life interest in real estate except upon notice to the life-tenant and with leave of court, etc., has no application to the sale of a life estate under a levari facias upon a mortgage given by the life-tenant, and such sale will pass his entire interest.</p> <p>2. Where an auditor appointed to distribute the proceeds of such a sale, finds upon sufficient evidence that the mortgage under which the property was sold was given for the benefit of the life-tenant alone, the remaindermen having joined in it to perfect the security, the mortgage debt, as well as the costs and the expenses of audit, must be paid out of the interest of the life-tenant.</p> <p>3. In distributing a balance remaining after payment of the debt and costs, where a life estate and the remainder are sold together under a mortgage given for the debt of the life-tenant, it is not error to fix the life interest at one third the value of the land, to charge against it the mortgago debt and all costs, and award to the remaindermen the other two thirds in cash.</p> <p>4. Two methods of distribution are lawful: One, to treat the surplus as real estate and direct its investment, until with its accumulations it reaches the value of the laud sold, and then award the interest on the amount to the life-tenant during life, and at Iris death the corpus to the remaindermen ; the other, to value the life interest, give the tenant thereof his share in cash, and divide the balance in cash to the remaindermen.</p> <p>5. A life-tenant is not to bo allowed, out of the proceeds of a sheriff’s sale of the entire estate in lands, the amount expended by Him for permanent improvements, when they were trilling and unimportant in character and there was no evidence adduced to show that they were made with the consent of the remaindermen.</p>

<p>[To be reported.]</p> <p>1. If an administrator or other trustee invest the trust funds with a private banker, without an order of court but in good faith and under the advice of counsel, he must suffer a loss resulting from the insolvency of the banker, even though the latter was in undoubted credit at the time of the loan.</p> <p>2. A certificate given by a banker that an administrator had “ deposited ” in his office a sum of money payable to his order or the order of his attorney, “ on return of this certificate, twelve months after date, with interest,” evidences not merely a deposit but a loan or investment of the money.</p> <p>3. The legal effect of the certificate cannot be modified by parol evidence of a contemporaneous agreement that the money might be withdrawn, but without interest, at any time upon return of the certificate, except upon proof of its omission from the instrument by fraud, accident, or mistake.</p>

<p>ERROR TO THE COURT OK COMMON PLEAS OP LANCASTER COUNTY.</p> <p>No. 155 January Term 1889, Sup. Ct.; court below, No. 29 December Term 1884, C. P.</p> <p>On August 22, 1885, an issue devisavit vel non, wherein Joseph VanLeer and Caroline, his wife, in right of said Caroline, were plaintiffs, and Sidwell T. Wilson and Needham M. Wilson, executors of the will of Needham Wilson, were defendants, was- formed to try whether or not a certain testamentary paper was a codicil to the last will and testament of Needham Wilson. The issue had been directed by the Orphans’ Court upon an appeal by said executors from the decree of the register of wills, admitting said paper to probate.</p> <p>At the trial on October 15, 1888, the plaintiffs put in evidence the will of Needham Wilson, dated March 2, 1865, and duly admitted to probate on September 28, 1872. They then put in evidence, under objection and exception to the defendants, the record of the appeal from the decree of the register, dated June 23, 1883, admitting to probate the alleged codicil.</p> <p>Margaret Manahan, called by plaintiffs, testified that she had known Needham Wilson, deceased, from the time she was a little girl until he died; that she saw him write and sign his name to the paper dated August 13,1865, shown to her and marked for identification; that he came to her house on that day and asked for her sister Caroline, now Mrs. YanLeer; that she told him her sister had gone to the country, when he asked her for paper, pen and ink; that she had no paper, and gave him a pen and ink and got him a “ copy-book,” from which he tore a piece of paper and wrote thereon the instrument in question and signed it; that he then folded up the paper, gave it to witness, and directed her to give it to Caroline when she returned. On cross-examination, the witness stated that when fclie paper was written and signed, only berself and her little boy were at home, her husband being absent, railroading; that be got off only on Sundays, and he wasn’t at borne at this time, because it wasn’t his time to be off.</p> <p>Cornelius Carman, called by the plaintiffs, testified that he was a brother of Caroline YanLeer, and had known Needham Wilson from his own boyhood; that'when the witness was ten or eleven years old, which was thirty-two years before tbe trial, be was living with Mr. Wilson and saw him write two or three letters to tlie witness’s father; that in October, 1865, tbe witness was with Mr. Wilson at a hotel in Lancaster, and saw him write a memorandum of articles he wished to purchase and indorse his name on a cheek, and since then witness had not seen Mr. Wilson write. The witness was subjected to a rigid cross-examination, and testified to his belief that the signature and the whole of the paper shown him was in the handwriting of Needham Wilson.</p> <p>The plaintiffs then offered the paper in evidence.</p> <p>Objected to by defendants: We do not think it has been proven by two witnesses as prescribed by law.</p> <p>. By the court: Objection overruled, offer admitted; exception.1</p> <p>The paper as then read to the jury was as follows: *</p> <p>“August 13, 1865.</p> <p>“ I give thes fiew lines to Caroline Carman to show that I want her to have the sum of twelve hundred dollars at my death she livd with meo A number of years And got verry little for it so i thought it rite to leave her This little sum to to be paid out of my borne property</p> <p>from Needham Wilson.”</p> <p>The plaintiffs then rested.</p> <p>The defendants called a number of witnesses whose testimony tended to prove that the paper in question was not in the handwriting of Needham Wilson, nor executed by bim.</p> <p>In his argument to the jury on behalf of the defendants in the issue Mr. Brown said:</p> <p>I now offer to show to the jury an almanac, and to call their attention to the fact that the 13th of August, 1865, came on Sunday.</p> <p>Objected to.</p> <p>By the court: Objection sustained, offer refused; exception.®</p> <p>The court, Patterson, J., charged the jury saying, inter alia:</p> <p>The law of Pennsylvania says: “Every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction; and in all cases shall be proved by the oaths or affirmations of two or more competent witnesses; otherwise, such will shall be of no effect.” The paper before you is signed, as you have been shown, by a name; by the name Needham Wilson. Now the question for you is, is the name of Needham Wilson to that paper the genuine signature of Needham Wilson. The plaintiffs called two witnesses, whose evidence you heard, who swore that that signature is genuine; one of them testified that she saw Needham Wilson sign the very signature to that paper. [These two witnesses, Margaret Manahan and Cornelius Carman have been admitted by the court and held to be competent witnesses. They are competent witnesses.] 4 Of course, their credibility is for you, the jury. The credibility of all witnesses in every ease tried by a jury is for the jury. That is, whether they are truthful, or whether you will believe them. The two competent witnesses need not be subscribing witnesses; that is, their names need not be subscribed to the will or paper. The signature of the alleged maker of the paper may be proved by witnesses who have knowledge of his handwriting and who were well acquainted with it, as was one witness who was called here in this case.</p> <p>********</p> <p>The defendants have requested the court to charge:</p> <p>1. No will or codicil is of any effect unless proved by the oaths or affirmations of two or more competent witnesses.</p> <p>There must be at least two competent witnesses to prove every will or codicil.</p> <p>Answer: We say, yes, to that. There must be two witnesses.</p> <p>2. In the case now before the jury, the testimony of Margaret Manaban is in itself insufficient to prove the execution of the alleged codicil, and with nothing else but it to guide them, the verdict must be in favor of the defendants.</p> <p>Answer: Yes. Because, as we have stated, there must be two competent witnesses to validate a will.</p> <p>3. If the jury do not believe Cornelius Carman is a competent witness to prove the execution of the alleged codicil, the verdict must be in favor of the defendants.</p> <p>Answer: We deny that point as stated. The belief of the jury as to Cornelius Carman being a competent witness has nothing to do with his competency. Competency means the legal fitness of a witness to be heard on the trial of a cause. It is a legal question, and the court is the sole judge of his competency. The jury has nothing to do in deciding whether he is competent. If the court think he is so interested, or in a position that he cannot testify, they will rule him out; but if they decide he is a competent witness, then that makes his testimony come before you, like that of any other witness. The court admitted Cornelius Carman as a competent witness; his testimony, however, is for the jury like any other witness; his credibility is for them to determine.8</p> <p>4. Unless the juiy believe that two competent witnesses have proved the execution of the alleged codicil, the verdict must be in favor of the defendants.</p> <p>Answer: Yes. Two competent witnesses; that is so. As we have already stated, competency means a legal witness, and the court is the sole judge of his or her competency. In this case the court has received him and permitted him to testify as a competent witness. The jury’s belief of his testimony cannot determine his competency. That is a duty to be discharged by the court. They may, however, or may not believe his testimony. You may or you may not believe it. His testimony with that of Mrs. Manahan constitute the two witnesses to this little will.3</p> <p>The jury returned a verdict in favor of the plaintiffs. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendants took this writ, assigning as error:</p> <p>1. The admission of the plaintiffs’ offer.1</p> <p>2, 3. The answers to the defendants’ points.8 3</p> <p>4. The portion of the charge inclosed in [ ] 4</p> <p>5. The refusal of the defendants’ offer.5</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE LANCASTER COUNTV.</p> <p>No. 218 July Term 1888, Sup. Ct.; court below, No. 52 June Term 1887, C. P.</p> <p>On June 20, 1887, an issue was formed, under the sheriff’s interpleader act, in which Lydia R. Martin and I). G. Hoffman were plaintiffs, and Jacob Rutt, Sr., defendant, to try the title to certain personalty levied upon by the sheriff as the property of D. G. Martin, Lydia R.’s husband, under a judgment by Rutt against Martin, hut claimed by the plaintiff's.</p> <p>The goods levied upon consisted of cigars, leaf tobacco, a horse, liquors, bar-room furniture, an organ, household goods, etc. Part of them were claimed by Hoffman, and part by Mrs. Martin, who introduced evidence tending to show that she obtained the tobacco in dispute and from which the cigars were made, from her father; that her father advanced her money, also, with”which she purchased the other goods claimed by her, and that D. G. Martin, her husband, was merely her agent. Samuel Zimmerman, called by the defendant:</p> <p>Q. State to the court and jury the conversation you had with T). G. Martin with reference to the transfer of this property to his wife,- after this levy.</p> <p>Objected to by plaintiffs’ counsel unless the wife were present, or other interested party for her.</p> <p>By the court: Objection overruled, and question admitted; exception.5</p> <p>A. Shortly after he was sheriffed, I went there and I talked to him about my bill, and be said that he didn’t w-ant to cheat me out of my bill, money that I have in him, but be assigned it to bis wife on account of Jake Rutt.</p> <p>The defendant offered in evidence, his judgment against D. G. Martin, upon which his execution had issued.</p> <p>Objected to.</p> <p>By the court: Objection overruled.6</p> <p>The defendant having shown that the existing Internal Revenue certificate for the manufacture of the cigars was in the name of D. Gf. Martin, the plaintiffs, in order to show that it was immaterial in whose name the certificate was issued, offered in evidence a certificate for the year 1876, in the name of one Abraham M. Martin.</p> <p>Objected to.</p> <p>By the court: Objection sustained; exception.7</p> <p>The court, Pattekson, J., submitted the cause to the jury on the evidence, and after referring to the plaintiffs’ affidavit claiming the property, said:</p> <p>[When they made this affidavit and came into court, then the court, inasmuch as it was denied by Mr. Rutt, framed this feigned issue, that it might be inquired into and ascertained who owned these goods, whether they were David G. Martin’s, the debtor’s, or whether they were Lydia Martin’s] 1 or Mr. Hoffman’s; and hence, what you are to try is the issue, to try by a jury'the right to certain personal property levied upon by the sheriff on fieri facias, to April Term 1886, No. 89. You have heard all the articles enumerated, which were levied upon. [Now, what you are to try is, the question, who owns these goods. Your inquiry will go to the question as to whether D. G. Martin owned them;] 8 if he didn’t own them, then Mr. Rutt had no right to levy upon them or some of them, or take them as the property of D. G. Martin; because neither Mrs. Martin nor Mr. Hoffman owed Mr. Rutt anything; but if you find they are not D. G. Martin’s, why then you will find for the plaintiffs, and if you find that they are D. G. Martin’s, or any of them, then you will find for the defendant in this casi.</p> <p>The jury returned a verdict in favor of the plaintiff, Mrs. Martin, for part only of the goods claimed by her, and in favor of the defendant for the goods claimed by plaintiff Hoffman. A rule for a new trial having been discharged, judgment was entered upon the verdict, when Mrs. Martin took this writ assigning as error:</p> <p>1, 2. The parts of the charge included in [ ] 1 8</p> <p>5, 6. The admission of defendants’ offers.5 G</p> <p>7. The refusal of plaintiffs’ offer.7</p>

<p>[To be reported.]</p> <p>1. A proceeding by attachment under the act of March 17, 1869, P. L. 8, is to be regarded as a personal action, the attachment being intended to. secure to the plaintiff a lien in advance, the efficacy of which will depend on the recovery of a final judgment against the defendant.</p> <p>2. The prior recovery of a final judgment in another proceeding between the same parities upon the same cause of action, is a bar to the recovery of a judgment in the proceeding by attachment; anS this, though the defendant in the attachment filed no bond under § 8 of the act.</p>

<p>[To be reported.]</p> <p>1. An agreement — without other consideration — to accept a smaller sum in satisfaction of a larger one, presently due, cannot be enforced, and the actual acceptance of such smaller sum is not a good discharge of the debt, even as accord and satisfaction.</p> <p>2. The fact that, after agreeing with one of two sureties, in consideration oí t)ie receipt of one half of the debt, to release him from further liability, the creditor allows the statute of limitations to bai- an action on the obligation against the other surety, discloses no consideration by way of detriment to the promisee, supporting the promise to release.</p> <p>3. A right of action for contribution between co-sureties does not arise until one of them has paid more than a due proportion of the debt, and until then the statute of limitations does not begin to run between them; wherefore, such right is unaffected by the fact that the statute may have barred any direct liability of the other surety to the creditor.</p>

No. 364 January Term 1888, Sup. Ct.; court below, No. 25 February Term 1888, C. P. On December 7, 1887, W. W. Jennings brought assumpsit against the Coal Ridge Improvement and Coal Company, to recover interest upon corporate bonds made by tbe defendant company. Issue.

<p>ERROR. TO THE COURT OF COMMON PLEAS OP NORTHUMBERLAND COUNTY.</p> <p>No. 94 July Term 1888, Sup. Ct.; court below, No. 6 May Term 1888, C. P.</p> <p>On February 6, 1888, an action of ejectment was begun by Henry L. Cake, A. H. Stone and David Taggart, trustees of the First National Bank of Northumberland against Joseph W. Cake, Jr., Joseph R. Leisenring, John Poff, Robert Jones, Henry S. Neff, Samuel Lugar and Isaac Slack, by filing a certified record of the proceeding had before a justice of the peace to obtain possession of certain real estate in the borough of Sunbury, Pa., after a sheriff’s sale thereof to the plaintiffs. Declaration in ejectment filed and issue.</p> <p>At tbe trial on May 8, 1888, tbe facts appearing were in substance as follows:</p> <p>On December 10, 1877, Joseph W. Cake, Sr., executed and delivered, to the plaintiffs a mortgage, duly recorded, for §25,000, upon a number of lots in Cake’s addition to Sun-bury, including the lots in question which were described as follows: “Also the following described pieces of property, being lots four (4), five (5), six (6), seven (7), eight (8), and nine (9), in block seventeen (17), fronting on Susquehanna avenue, each twenty-five (25) feet in width, and extending west each of that width one hundred and fifty (150) feet to Fort Augusta avenue, upon which said lots are twelve (12) two and a half (2j) story frame dwelling houses, covered with slate and metal roofs with one story back kitchen attached.”</p> <p>On May 9, 1878, the Northumberland County National Bank for the use of W. II. M. Oram, receiver of said bank, obtained a judgment against the said Joseph W. Cake, Sr., for the sum of §4,588.12, which judgment was assigned to Joseph W. Cake, Jr., on March 19, 1881.</p> <p>On June 1, 1879, Joseph W. Cake, Sr., died, intestate, and on July 10,1882, the plaintiffs issued a scire facias on their mortgage, which was duly served. It was afterwards discovered that by a clerical mistake in the mortgage, the above-mentioned lots were stated to be in block 17, while in fact they were in block 7, when the plaintiffs discontinued the proceeding on the scire facias, and on March 10, 1884, filed a bill in equity to re-form the mortgage, making the administrator and all the heirs of Joseph W. Cake, Sr., parties defendant thereto, all of whom, including said Joseph W. Cake, Jr., were duly served. A rule was also issued and duly served upon him and them to file their plea, answer or demurrer within thirty days from the service of the rule. At the expiration of this time no plea, answer or demurrer having been filed to the bill of complaint, on September 9, 1884, a decree was made against the defendants, including the plaintiff: in error, correcting the numbering of the block from 17 to 7.</p> <p>An alias scire facias was then issued on the mortgage, judgment obtained June 29, 1886, a writ of levari facias issued and tbe property sold tbereon to tbe plaintiffs on September 15, 1886.</p> <p>' Proceedings were then instituted before a justice to obtain possession when Joseph W. Cake, Jr., made affidavit that he claimed the property, not under the defendant, but by a different title, as follows: Prior to the judgment on the 'said mortgage, the lots in dispute were levied upon, condemned and sold by the sheriff on proceedings under the judgment which had been assigned to the said Joseph W. Cake, Jr., who became the purchaser and received the sheriff’s deed therefor, dated May 14, 1886. The proceedings were then certified into the Court of Common Pleas.</p> <p>The plaintiff offered in evidence the record of the mortgage, the proceedings on the writs of scire facias, and on the bill in equity.</p> <p>Objected to, substantially, on the ground that the mortgage was not a lien on the property in suit; or, if it ever became so, it was after defendant Joseph W. Cake, Jr., had become the owner of the above judgment, without notice; for the decree re-forming the mortgage bad not been duly recorded in the recorder’s office, and notice of the proceeding in equity to said Joseph W. Cake, Jr., as an heir, was not notice to him as a judgment creditor of the decedent.</p> <p>By the court: Objection overruled,• exceptions.1 8 3</p> <p>The defendant offered the record of the proceedings on the judgment No. 889 June Term 1877, with the return of the sheriff’s sale and deed finally made therein.</p> <p>Objected to by the plaintiff, because the lien of the judgment was subsequent to the lien of the mortgage, and because the judgment in the alias scire facias related back to the date of the mortgage. .</p> <p>By the court: Objection sustained ; exception.4</p> <p>It was proved that Susquehanna avenue is the principal street in Cake’s addition, and that lots in block 17 of the same number as those in suit, fronted on Railroad avenue and ran west 150 feet, to an alley not named in the plan, and had but one frame house built upon them when the mortgage was given.</p> <p>At the conclusion of the case on the evidence, the. court, Rockefeller, P. J., charged the jury, inter alia, as follows :0</p> <p>[The contention of the defendant is, that he had obtained a judgment against Joseph W. Cake, the mortgagor, entered prior to the entry of this mortgage, to wit, on May 9, 1878. He offered in evidence tire fact that, on May 9, 1878, about five months after the mortgage was executed by Joseph W. Cake, the Northumberland County National Bank, for the use of W. H. M. Oram, receiver, recovered a judgment for some 84,588.50 against Joseph W. Cake, the mortgagor, and that this judgment was assigned to him on March 19, 1881. He offered this in evidence, to be followed by a sale by the sheriff to him of the lots in dispute, contending that it ought to be received upon the ground that the re-formation of this mortgage did not take place until subsequent to the obtaining of this judgment by the Northumberland County National Bank and subsequently to its being assigned to him. He further contended that he had no notice at the time that this judgment was obtained, that there was an error or mistake in this mortgage. Now, gentlemen of the jury, that evidence was rejected. Whilst it is true that where there is an error in a mortgage and a mistake that would be corrected by the parties to it immediately upon discovery, yet that cannot affect an innocent judgment creditor who parted with his money without knowledge of the fact that there was a vice or a mistake in the mortgage. But in the case on hand, this mortgage was re-formed after the judgment had boon obtained, and after it had been assigned to Joseph W. Cake, Jr., and after notice was given him by this bill in equity. It is true, he was only named in that bill in equity as an heir, or a legal representative of Joseph W. Cake, the mortgagor; but, notwithstanding the fact that notice was given to him simply in that character, we are of the opinion that he had a right and that it -was Ms bounden duty, whilst this bill in equity was pending, to set up any defence he might have to the re-formation of this mortgage. He failed to do that. The result was that a decree was entered against him, which was binding upon him, and affected him with the re-formation of the mortgage, so that so far as his right under the judgment is concerned, he is to be treated with knowledge of it in the beginning. The decree stands until it is reversed, and so long as that record stands he is estopped from disputing it.] 5</p> <p>vjí *'*J</p> <p>[It is conceded and admitted that the plot of Caketown was not recorded. The mortgage being the prior lien upon the lots in Caketown, it was the duty of a subsequent incumbrancer before he parted with his money to go upon the ground and examine for himself the description of the lots given in the mortgage. Had this been done, it would have been seen from the adjoiners called for in the mortgage, and the description of the buildings called for, twelve two and one half story frame dwelling houses with slate and metal roofs, with one story brick kitchen attached, that they were located in block No. 7, and that neither the building on block No. 17, nor the adjoiners, would answer the description in the mortgage. Thus he would have seen that the lots in dispute were covered by the mortgage. In the absence of a recorded plot of Caketown, it was the duty of a junior incumbrancer to go upon the ground and examine. Hence we instruct you to find in favor of the plaintiffs the lands that are described in the declaration filed, if you believe the uncontradicted evidence of the plaintiffs.] 6</p> <p>The jury returned a verdict in favor of the plaintiffs for the lands in suit and for $525 as damages for the unlawful detention thereof, and judgment was entered on the verdict. Thereupon the defendants took this writ, assigning as error :</p> <p>1-8. The admission of the plaintiffs’ offers.1 *° 3</p> <p>4. The refusal of the defendants’ offer.4</p> <p>5, 6. The parts of the charge included in [ ] 5 6</p>

<p>EEEOE TO THE COURT OE COMMON PLEAS OE PEEEY COUNTY.</p> <p>No. 96 July Term 1888, Sup. Ct.; court below, No. 29 April Term 1886, C. P.</p> <p>On March 6, 1886, Mary J. Sellers brought case against the Pennsylvania Railroad Company, to recover damages for personal injuries to her husband, George W. Sellers, resulting in his death, charged to the negligence of the defendant company’s employees. Issue.</p> <p>At the trial on January 19, 1888, the facts made to appear were in substance as follows :</p> <p>On November 29, 1885, George W. Sellers, the plaintiff’s husband, while passing over a public crossing of a railroad track was struck and killed by the hindmost of two cars which a shifting engine was backing down over the crossing to couple with other cars below. There was a network of tracks at this crossing, and the main question in dispute was, whether the defendant company, or the Northern Central Railway Company, was responsible for the accident.</p> <p>The accident occurred upon the line of the Northern Central Railway Company, which company owned the engine and cars causing it. There was no testimony showing directly that the defendant company then owned or had leased the railroad of the Northern Central Railway Company; but, as evidence that the train employees who had charge of the engine and cars which caused the accident, wore the employees of the defendant company, the plaintiff adduced testimony to the effect that the rolling stock of the two roads was used indiscriminately on either line; that the trainmen on either lino wore uniform clothing marked with the insignia of the defendant company; that tickets over the Northern Central line were sold by the defendant company; that the Northern Central line had been divided and one part was called a division of defendant company’s road; that the principal officers of the two roads were the same persons ; that the employees running the train which caused the accident were members of the Penna. R. R. Relief Association, to which employees of the defendant company only could belong; that the general freight department of defendant company issued orders to agents on the Northern Central line, and that printed publications of defendant company referred to the Northern Central Railway as a road leased, operated and controlled by the defendant company. Testimony explanatory and in rebuttal of that on the part of the plaintiff was introduced by the defendant.</p> <p>The court, Barnett, P. J., submitted the evidence upon all the disputed questions of fact to the jury, and concluded the charge as follows:</p> <p>[And then you will consider whether the persons, who shifted the cars, were the employees of the defendant, the Pennsylvania Railroad Company; if they were not, then no matter who else might be responsible, this defendant is not, and your verdict should be for the defendant. But if, under all the evidence in this case, you should find that the persons who shifted the cars did so as employees and under the authority of the Pennsylvania Railroad Company, then your verdict should be in favor of the plaintiff.] 6</p> <p>The defendant requests the court to charge:</p> <p>1. That there is no evidence whatever offered by the plaintiff to show that the defendant either owned or was the lessee of the Northern Central Railway.</p> <p>Answer: Affirmed.</p> <p>4. That the accident which resulted, in the death of Sellers occurred in the yard of the Northern Central Railway Company, at Marysville, and upon the tracks of the said Northern Central Railway Company, from a shifting engine of the said Northern Central Railway, operated by employees of said railway company, with which the Pennsylvania Railroad Company had no connection whatever; that she ran no trains over the tracks where the accident occurred, nor any trains upon the Baltimore Division, extending from the city of Baltimore to said yards of the Northern Central Railway Company where the accident occurred; and that the jury is bound to find the fact to be that the Pennsylvania Railroad Company neither operated nor controlled the said Baltimore Division of the Northern Central Railway; and, that although it should be established by the evidence, both that the Pennsylvania Railroad Company operated and controlled the Susquehanna Division of said Northern Central Railway Company, extending from Rockville to Sunbury, the said Pennsylvania Railroad Company would not be liable for any injury which said Sellers received on said Baltimore Division, which it neither leased nor controlled, and hence there can be no recovery against the defendant in this action.</p> <p>Answer: This calls for binding instructions which would take the case from the jury. But we think there is some evidence in this case which the jury should pass upon, and therefore we decline to affirm this point as presented.1</p> <p>6. That unless the train which did the injury, by the negligence of those in charge of the same, was a train run by the authority of the corporation known as the Pennsylvania Railroad Company, no action would lie against the latter company; and as the plaintiff’s evidence shows that the shifting train in the Marysville yard which killed Sellers, was a train run by the employees of the said Northern Central Railway in its corporate name, this plaintiff cannot recover.</p> <p>' Answer: The first part of this point is correct, but we decline to affirm it as presented.8</p> <p>The jury rendered a verdict in favor of 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, assigning as error, inter alia :</p> <p>1, 2. The answers to defendant’s points.1 8</p> <p>6. The part of the charge included in [ ] 6</p>

from the decree of the court of common pleas of PERRY COUNTY. No. 102 July Term 1888, Sup. Ct.; court below, No. 210 November Term 1885, C. P. On December 30, 1885, W. C. King, with Martha his wife, executed and delivered to W. A. Sponsler a deed of voluntary assignment for the benefit of creditors.

<p>ERROR TO THE COURT OF COMMON PLEAS OF NORTHUMBERLAND COUNTY.</p> <p>No. 189 January Term 1889, Sup. Ct.; court below, No. 364 September Term 1888, O. P.</p> <p>On August 28, 1888, a feigned issue in which Oliver Diehl and John F. Enterline were plaintiffs, and A. W. Stevens & Son were defendants, was entered, to try the title to certain personalty levied upon as the property of Benjamin Reichenbach and John A. Reichenbach, trading as Ben. Reichenbach & Son, but which was claimed by the plaintiffs.</p> <p>On October 16,1886, Reichenbach & Son bought of Stevens & Son a steam thrashing machine, traction engine and water tank for $1,650, giving in payment therefor, three judgment notes dated October 4,1886, for $550 each, payable January 1, 1887,1888 and 1889, respectively. Judgments were at once entered upon these notes in the order of maturity, to Nos. 89, 90 and 91 December Term 1886.</p> <p>On April 29, 1887, but $100 having been paid on the note due January 1, 1887, Benjamin Reichenbach borrowed $200 from William II. Leighou and paid it to Stevens & Son. As security, Benjamin Reiehenbacb gave to Leighou his own judgment note with one Probst as surety, for $204. On April 30, 1887, judgment was entered on this note, and on the saíne day a fieri facias to No. 1 September Term 1887 was issued thereon and placed in the sheriff's hands. Subsequently, Benjamin Reichenbach borrowed $269.70 more from Leighou and therewith paid to Stevens & Son the balance on tbeir first note dne April 1, 1887. To secure ibis second loan, Benjamin Reichenbach gave another judgment note to Leighou, with the same surety, and the same day, May 2, 1887, judgment was entered thereon, a fieri facias issued to No. 4 September Term 1887, and placed in the sheriff’s hands. Under these two writs the sheriff made and returned a levy upon numerous articles of personalty, including the thrashing machino, traction engine and water tank, as the property of Ben. Reichenbach. At the sale of the property thus levied upon, on May 28,1887, W. H. Leighou became the purchaser of the thrasher, engine and tank.</p> <p>Afterwards, Leighou, discovering that the thrasher, engine and tank belonged to tbe firm of Reicbenbacb & Son, instead of to Benjamin Reicbenbacb, thereupon induced Benjamin and John A. Reichenbach to give him their joint judgment note for $624.50, dated November 17, 1887, upon which he at once entered judgment and issued a special fieri facias to No. 8 February Term 1888, under the act of April 8, 1878, P. L. 65, regulating executions against firm property for individual indebtedness. A levy was made upon this writ on the thrashing machine, traction engine and water tank, followed by a sale of the same a second time to Leighou.</p> <p>About February 11,1888, Leighou sold the thrashing machine, engine and water tank to Oliver Diehl and John F. Enterline, the plaintiffs, in this issue. Subsequently, Stevens & Son issued execution on their judgments and directed the sheriff to make a levy on the thrashing machine, engine and tank, in the hands of Diehl and Enterline. They contended on the trial of the issue that the note of November IT, 1887, for $624.50 was void for want of consideration; that Leighou, who was a party to the transaction, had no title through the first sale and acquired none by the second, and having no title could pass none to Diehl and Enterline; that the intention was to defraud Stevens & Son, who had a legal right to a levy and sale of the property they had sold, and for which they had not been paid.</p> <p>The court, Rockefeller, P. J., refused to affirm the ¡joints submitted by the defendants, Stevens & Son, in support of their contention, and in giving the case to the jury charged, inter alia, as follows:</p> <p>We say to you if you find that the consideration for the two judgments of $204 and $269.70, was money advanced by Mr. Leighou to Benjamin Reichenbach, one of the members of the firm of Ben. Reichenbach & Son, for firm purposes, that is, to pay off a firm debt, and it was afterwards discovered that the sale upon those two judgments was void and passed no title to the plaintiff, William H. Leighou, and that in consideration of that matter Benjamin Reichenbach and John A. Reichenbach, the two members of the firm, which firm had received the benefit of Leighou’s money, agreed then to give Leighou another judgment for the amount that he had advanced with interest and costs, I can see no reason why such judgment would not be a good and valid judgment. The first two judgments were satisfied, of course, by the sheriff’s sale, whether Leighou got a good title to the property that he purchased or not. But I cannot see any reason why, if he got no title, common honesty and morality would prevent the two Reichenbachs from afterwards giving another judgment to Leighou, so as to enable him to make himself whole for the money that he had advanced for the benefit of the firm. And, if you find these were the facts, we say to you that the consideration of judgment No. 37 February Term 1888, for $624.50 was sufficient. Then if you find from the evidence that that was a fair and honest judgment, that there was no fraud in its execution and the giving of the judgment by the two .Reiehenbachs to Leighou, then the sale made under the fieri facias issued upon it to No. 8 February Term 1888, passed a good title to Leighou for the property that was sold to him by the sheriff.</p> <p>The jury returned a verdict for the plaintiffs, and a rule for a new trial having been discharged, judgment was entered on the verdict. The defendants thereupon took this writ, assigning for error, inter alia, the refusal of their points, and the part of the general charge above quoted.</p>

<p>EROM THE DECREE OE THE ORPHANS’ COURT OE NORTHUM-BERLAND COUNTY.</p> <p>Nos. 242, 371 January Term 1889, Sup. Ct.; court below, No. 48 February Term 1887, O. C.</p> <p>On April 11, 1887, the petition of Ann O. Rodrigue was presented, setting forth, in substance :</p> <p>That Hugh Bellas, late of the borough of Sunbury, died having made his last will duly admitted to probate, in a codicil to which, dated November 3, 1860, be devised to trustees a certain portion of bis property in trust for Ann C. Rodrigue, providing: “ And tbe said trustees or either of them are required to apply all tbe proceeds and profits thereof to her personal use and support and benefit from time to time as she may need and require, when deemed necessary for herself and children, hut not to he applied or used otherwise.*</p> <p>That, the trustees named in the codicil declining to act, Dr. Joseph Priestley was appointed by tbe court on August 17, 1865, as substituted trustee; and, the executors named in tlio will also declining to act, letters of administration c. b. a. were issued to Mr. S. P. Wolverton, who “ attended to all the duties of the appointment in your petitioner’s interest in said estate, and no labor or responsibility was required on tbe part of said trustee, except tbe mere form of transmitting to her checks which were drawn monthly by tbe said administrator and sent to him.”</p> <p>Tliat’ on December 11, 1882, the said Dr. Priestley had presented a petition to the Orphans’ Court upon which he was discharged from the trust, “ which he had not acted in for ten years,” and she had lately been informed that on September 6, 1882, Dr. Priestley bad filed an account, in which bo had charged himself with having received various sums of money, taken from the distribution accounts attached to the annual accounts of S. P. Wolverton, administrator e. t. a. of Hugli Bellas, deceased, amounting to $76,777.95, arid bad taken credit with having paid the same out on the same date to her, and charged thereon a commission of $1,560.40.</p> <p>“Your petitioner avers that not one dollar went into the hands of the said Joseph Priestley, as her trustee; that it was transferred bodily from the accounts of S. P. Wolverton, administrator with the will annexed, and that all the items embraced in said account were paid directly to her by S. P. Wolverton, administrator, under an agreement in writing, signed by herself and all her children, providing for the direct payment to her, instead of through the trustee. She further avers that she is a non-resident of the state, and is now residing at Woodbridge, in the state of New Jersey; that she had no notice of the filing of said account in writing, and only recently learned of the existence of said account, and the fact that a rule had been obtained upon her to pay the said sum of $1,560.40. That the said account is incorrect, in the fact that it states upon its face that $76,777.95 was received by Joseph Priestley, from S. P. Wolverton, administrator of Hugh Bellas, deceased, when in truth none of said money went into his hands, and it is incorrect in stating that he paid out these amounts at various dates therein stated to Ann C. Rodrigue; that the money was all paid directly by S. P. Wolverton, administrator, to her, and did not go through the hands of the said alleged trustee.”</p> <p>Further averring that it was incorrect to charge “ her for services which were never performed, a commission of $1,560.40,” the petitioner brought this her bill or petition for review, and prayed to be relieved thereon, and that a citation should is'sue upon Hannah H. Priestley, administratrix of Dr. Joseph Priestley, then deceased, and all parties interested, commanding them, etc.</p> <p>The answer of Hannah H. Priestley, administratrix of Dr. Priestley, filed to the foregoing petition, set out, inter alia, the duties performed by the trustee, of which the petitioner had knowledge; that his account was prepared in the office and with the knowledge of the administrator c. t. a. of the estate, and from the receipts and vouchers of the trustee which he had permitted to remain in the hands of said administrator; that the filing of said account with the register was advertised in due form of law, and, no exceptions being filed thereto, was confirmed absolutely on December 6,1882; that the respondent had no knowledge of the existence of an agreement in writing, signed by the petitioner and. her children, providing for the direct payment to the petitioner, instead of through the trustee, as alleged.</p> <p>“Your respondent, further averring that the said account is correct in every particular and most carefully and conscientiously stated by the accountant; that there are no specific errors alleged in said petition, npr any errors apparent on the face of the record; that the only error alleged, other than that of filing an account at all, is the striking of a balance which shows that there was due the accountant at the time of the filing thereof the sum of $1,560.40, which sum represents and includes commissions for acting as trustee for ten years and upwards, the payment of counsel fees, the register for passing the account, and the responsibility for the proper appropriation of $76,777.95; that the said account was filed with the actual and legal knowledge of said petitioner; that no exceptions were taken thereto by her, or by any one in her behalf, and that upwards of four years have elapsed since the absolute confirmation thereof, prays the said court that she may be dismissed,” etc.</p> <p>The foregoing answer having been filed, on June 29, 1887, the court appointed Mr. J. Mevin Mill, auditor, to hear the testimony and to report the facts in the ease, and his opinion thereon.</p> <p>The auditor found as facts, in substance, that from the time of his appointment, in August, 1865, up to July, 1872, Dr. Priestley acted uninterruptedly as trustee under the will of Mr. Bellas and the appointment of the court, receiving from the administrator c. t. a. moneys due Mrs. Rodrigue and paying the same over to her; that in 1872, there were disagreements between Mrs. Rodrigue and Dr. Priestley relative to his charges for compensation and partly the result of his refusal to pay her the proceeds of the sale of some real estate, to which he was advised she was not entitled; that, upon these disagreements, Dr. Priestley filed what was denominated a final acc ount and made application to the court to be discharged, but his petition was held under advisement until a satisfactory trustee could be agreed upon and would consent to take his place; that from this time on the administrator of the estate paid the moneys due Mrs. Rodrigue directly to her, taking receipts, however, to Dr. Priestley as trustee; that “for some reason unexplained, probably because Mrs. Rodrigue regarded it as unnecessary and a useless expense,” no trustee to relieve Dr. Priestley was appointed or even applied for; that in the account stated in 1882, the items were taken from the annual accounts filed by the administrator; that “on the debtor side, he charged the accountant with ‘cash received, from S. P. Wolverton, administrator of Hugh Bellas ’ numerous items aggregating §76,777.95. On the credit side, he gave credit for a balance due from the former account, filed April, 1872, §28.16, and numerous items of ‘ cash paid Mrs. Ann G. Rodrigue ’ aggregating, with one item of ‘ commissions due accountant,’ of §1,522.24, and another of §10.00 paid the register for passing account, the sum of §78,388.85 showing a balance due the accountant of §1,560.40 j” that by a paper dated April 9, 1878, signed by Mrs. Rodrigue ^ and all her children, acknowledged and recorded, Mr. Wolverton, the administrator c. t. a., was authorized to pay directly and monthly to Mrs. Rodrigue the one third of the iucome, her share under the will, without the delay and expense of the payment of the same through a trustee; that it was not shown that Mrs.-Rodrigue had actual knowledge of the filing of the account of 1882, but she had constructive notice thereof by the advertisement of it by the register; that Dr. Priestley died on March 10, 1883, and on March 23,1883, letters of administration upon his estate were granted to Hannah H. Priestley, his widow.</p> <p>The auditor, upon the facts found by him, but briefly abstracted above, reported the following opinion:</p> <p>The application for a review of the account of Dr. Joseph Priestley, trustee of Ann C. Rodrigue, is made under the provisions of the first section of the act of October 13,1840, P. L. (1841) 1.</p> <p>This act does not specifically mention accounts of testamentary trustees, but was evidently intended to include all accounts over which the Orphans’ Court has jurisdiction. The act is remedial and should be liberally construed, and I believe it is broad enough to cover the present case.</p> <p>The petition in this case was presented within five years after final decree confirming the trustee’s account; it was presented by a person interested, and sets out that the account is erroneous in that none of the sums of money with which the accountant stands charged were in fact received by Mm; that none of the sums claimed to have been paid the petitioner were in fact paid her by the accountant, and that the accountant did not perform any services which would entitle Mm to the commissions claimed, viz.: $1,522.24; that in fact he did not act as trustee of the petitioner during the time covered by the account, but had declined to do so. This petition and specification of errors, is verified by affidavit.</p> <p>If these allegations of error, going into the whole of the account, are sustained by the facts in the case, is not the petitioner within the act and entitled to a rehearing; and is not the court bound to grant a rehearing of the account and to give such relief as justice and equity may require ? It seems to me this is all there is in the case for the present. The auditor may think that the charge of $1,522.24 is not excessive, and if the accountant actually handled the money he charged himself with, it would be a very modest charge; and it may be a moderate charge for responsibility merely, considered by itself; but this question can arise only on a review.</p> <p>Of one thing there can be no doubt. Dr. Priestley continued to be the legal trustee under the will of Hugh Bellas of Mrs. Rodrigue, by appointment of a court of competent jurisdiction, and he was not discharged as such until 1882. During the time from 1872, when he filed what he designated as his final account and applied to the court to be discharged, up to 1882, when he was discharged on the second petition after filing the account in controversy, he had a right to demand and receive the one third of the income or interest of the estate of Hugh Bellas due Mrs. Rodrigue, and he was accountable for the same. But he did not do so. He became incensed at the allegations of Mrs. Rodrigue that no trustee was necessary, and that his commissions were too high and a useless diminution of her income. Acting upon what he deemed sufficient provocation, he declined to receive further remittances on account of Mrs. Rodrigue from the administrator of the estate. True, he did not press his petition for discharge and allowed it to be lost sight of; but after returning the administrator’s check in 1872, with the declaration that he would have nothing further to do with Mrs. Rodrigue’s affairs, he cannot be said to have acted in any sense as her trustee. Certain things he did relative to the business, but these were only for his own protection and not necessarily for the protection of the trust estate or the benefit of the cestui que trust. In fact, he did what he determined to do in the first place, and never changed his mind. He refused to have anything to do with Mrs. Rodrigue or her affairs.</p> <p>All this has nothing to do with his responsibility as trustee, but it seems to me to be important in considering the right to charge himself with funds which by his own declination never came into his hands; to claim credit with payments which he never made, and to claim compensation as though he had managed the affairs of the estate. The account is in that form. It is fictitious and erroneous on its face. It is true that the receipts taken by Mr. Wolverton, the administrator, were taken as though the money had been paid by Dr. Priestley, through the administrator. But this was as fictitious as the account itself, and it is in evidence that Mrs. Rodrigue objected to dealing with the administrator in that way, and declined to sign many of the receipts. It does not appear that Dr. Priestley either authorized or directed Mr. Wolverton to pay Mrs. Rodrigue. He simply refused to receive and handle Mrs. Rodrigue’s money. Mr. Wolverton requested Dr. Priestley to withhold his application for discharge until another trustee could be appointed, and took receipts in Dr. Priestley’s name simply because he thought the will required the intervention of a trustee. After Dr. Priestley’s refusal to act, the trusteeship itself became a fiction except as to the responsibility of the trustee, and this the trustee had a right and it was undoubtedly Ms duty to guard, by demanding the money due the cestui que trust and to receive and pay it out.</p> <p>The auditor is of opinion that the account is erroneous ; that the allegations of the petitioner have been sustained by uncontradicted evidence and that a review should be granted as a matter of right.</p> <p>Counsel for the respondent contends that the petitioner is not entitled to a bill of review in law because she has not averred errors of law appearing on the face of the decree, or new matter that has arisen since the decree of confirmation, or that new evidence has been discovered, and cites Hartman’s App., 36 Pa. 70, Milligan’s App., 82 Pa. 395, and Scott’s App., 112 Pa. 427. I cannot say the petitioner has not averred errors of law on the face of the account. It is necessary to aver errors on the face of the record or in the account merely, and I am of opinion that it is sufficient to aver that the accountant in fact never received the moneys with which he charged himself, and upon which he bases claims for commissions, the balance being against the cestui que trust.</p> <p>It is also contended that the allegation of want of notice of the filing of the account has no evidence to support it, that it is denied by the answer and contradicted by the evidence before the auditor ; and that, had there been no actual notice, the advertising of the account by the register is as effective and binding as actual notice; citing App v. Dreisbach, 2 R. 287. Tt has been found as a fact that actual notice has not been shown or denied, but that there was constructive notice, which in law is as binding, for all practical purposes. The act of 1840, however, does not by its terms require it to be shown that there was no notice, to entitle an interested party to a review. In the case of Simpson’s App., 18 W. N. 175, which arose in this court, constructive and actual notice were shown, and the petitioner lived within a few yards of the register’s office, yet the court allowed a review and the Supreme Court affirmed the decree. Where no intervening rights are affected, and where no equities have arisen to the contrary, I believe the matter of notice to be immaterial.</p> <p>Counsel also contends that Dr. Priestley could not abandon the trust, and that if he did abandon it, as alleged, it did not relieve him from the responsibility of the proper appropriation of the funds by the administrator; citing Perry on Trusts, §§ 266-268 ; Webster v. Vande venter, 6 Gray 428; 11 Paige, 819. This is undoubtedly the law. If Mr. Wolverton had squandered the money, the trustee would have been liable for it; and, moreover, he could have made no claim for commissions, and could not have charged himself with the funds as a basis of a charge against the cestui que trust. He may have estopped himself from charging anything, and I understand that the petitioner claims that he did so.</p> <p>It is further contended that it was arranged between the administrator and the trustee that from 1872 the money should be paid direct to Mrs. Rodrigue by the administrator and receipts taken in the name and for the trustee by him. I have not been able to find this. There is no evidence before- me that goes to show that there was such an agreement. On the other hand, the trustee appears as insisting upon liis discharge and merely delaying the matter for a term when it seems to have been overlooked.</p> <p>Again; it is contended that the trustee considered himself as acting after April, 1872, and down to his final discharge, and responsible for the acts of Mr. Wolverton who was merely his agent. If Mr. Wolverton acted as -the agent of Dr. Priestley after 1872,1 would take a different view of the case, but I do not think the evidence warrants that conclusion. Dr. Priestley continued to be the technical trustee after that time, but he did not act.</p> <p>I think I have now considered and disposed of the questions involved in the case at this stage. I must say, however, that I have been largely influenced by the position of the court and the Supreme Court in Simpson’s Appeal, to which I have referred. It seems to me the circumstances of the two eases are quite similar. The allegation there was, that the accountant had charged himself with moneys which had never come into his hands, the petition being presented by the surety in the guardian bond. This was held to be an error on the face of the account. ' It was also shown in that case that the surety had notice of the filing of the account, and by examining it he would have discovered that his principal was charged with a large balance for which he, the surety, would be liable. He" allowed the account to be confirmed; and yet the court struck off the decree of confirmation and allowed a rehearing, when it was shown that in fact the guardian had never received the larger part of the moneys with which he was charged. In this case, it is the beneficiary who is charged with a balance and makes the application for a rehearing. She alleges that the moneys charged on the debtor side of the account, upon which the balance against her is predicated, never came into the hands of the accountant, and that he never performed any of the services indicated by the account. I cannot distinguish the two cases, and am therefore constrained to say that in my opinion the decree of confirmation of the account of Dr. Joseph Priestley, trustee of Ann C. Rodrigue, filed July 15, 1882, should be stricken off and a rehearing of the whole of said account granted.</p> <p>Various exceptions filed to his report by the respondent were overruled by the auditor. Said exceptions being filed with the report and renewed, the court, Rockefeller, P. J., filed an opinion, which after reviewing the facts concluded:</p> <p>It is strenuously contended that the confirmation cannot be opened and that the petition ought to be dismissed:</p> <p>First, because there is no error of law apparent on the face of the decree. If this is so, the objection is a good one, and I admit that 1 am not entirely clear in regard to it. The facts, however, are, that Dr. Priestley did not in any sense act as trustee for Mrs. Rodrigue, after April 9, 1878. He having refused to act, although not discharged by the court, a written agreement was put on record, signed and executed by the cestui q uo trust, who was sui juris, and her family, that all moneys were to bo paid directly to her. After that date all moneys were paid directly to her and not to the trustee, nor was any paid by him to her. The account, however, on the face of it, shows that commissions were charged on all sums paid after that date. It is claimed that this is not error apparent on the face of the decree. I think it is as much so as was the case in Simpson’s Appeal, decided in this court and affirmed by the Supreme Court, and I am sure there are many other cases in the books where the courts have looked beyond the record in the case, especially [into] other records for the facts, in order to ascertain whether there was error apparent on the face of the record.</p> <p>Second, it is claimed that there is no new matter arising subsequent to the decree, and, third, no after-discovered evidence. Dr. Priestley had not actively acted as trustee since filing what he styled his final account in 1872, and Mrs. Rodrigue doubtless never expected another account to be filed. She lived in another state and did not discover that an account had been filed until 1887, when she was called upon to pay the balance in favor of Dr. Priestley, as it appeared in the account. This balance arose from the charge of the trustee for commissions. Of course, the presumption is that the legal notices were given of the filing of the account, and therefore Mrs. Rodrigue had constructive notice and this perhaps was all that was necessary. She was not entitled to actual notice. She has not produced what is considered strictly after-discovered evidence, that is, evidence discovered since the decree, which could not by diligence have been discovered and produced at the time. But the fact that she had no actual notice of the filing of an account which she had reason to believe was not necessary and never would be filed, will cause a court to consider carefully all other matters that may by law afford relief.</p> <p>I am of opinion that Dr. Priestley ought to be allowed commissions or compensation for responsibility on account of the trust fund received and paid out from May, 1872, to April, 1878, inclusive, and that what is said in the per curiam opinion of the Supreme Court in Stevenson’s Est., 4 Wh. 103, is sound, except that in this case under the circumstances, perhaps two per centum is sufficient. I am further of opinion that from and after April 9, 1878, no commissions ought to be allowed.</p> <p>-* * * *</p> <p>The decree confirming the account is opened and a rehearing or review of the whole account granted as prayed for.</p> <p>The account was then referred by the court to Mr. Hill, the auditor, for re-statement. On the hearing, testimony was submitted showing facts which induced the auditor to report alternative statements of the' account, one of which, A, allowed the accountant credit for commissions for services, responsibility, trouble and expenses, including attorney fees due to his legal advisers, $1,522.24; the other, B, allowing credit to the accountant, separately, for the same attorney fees, and commissions at 2 per cent on the amount of the money received from the administrator c. t. a. and paid over by him directly to Mrs. Rodrigue from May 1, 1872, to April 9, 1878.</p> <p>Upon exceptions filed to this report by both the petitioner and the respondent, the court adopted statement B, reported by the auditor, striking out, however, one attorney fee and increasing the commissions to 3 per cent, making them amount to $980.34. Thus modified, the statement B was confirmed and a decree entered accordingly.</p> <p>Pending the proceedings before the auditor, Mrs. Ann C. Rodrigue died, and letters of administration upon her estate were granted to Ephraim Cutter, and upon the entry of a final decree by the court, Mr. Cutter, administrator, took the appeal to No. 242, specifying that the court erred in overruling the several exceptions filed by the petitioner, and in allowing any commissions whatever to the accountant.</p> <p>Mrs. Hannah H. Priestley, administratrix, took the appeal to No. 371, specifying that the court erred in overruling the several exceptions filed by the respondent, and in opening and reviewing the account, and reducing the commissions allowed to the accountant.</p>

<p>An agreement between persons engaging in business that each is to share directly in the profits as such, constitutes them partners as to third persons, whatever their arrangement may be between themselves; and in an action against them, as partners, to recover the price of goods sold after the date when the agreement was to expire, it is not error to instruct the jury that if they find the defendants continued to do business under the agreement, they were liable as copartners.</p>

No. 318 January Term 1889, Sup. Ct.; court below, No. 349 May Term 1884, C. P. On April 14, 1884, H. M. Overpeck brought assumpsit… Held: “A plaintiff, who has substantially and bona fide complied with the covenants on his part, in a written contract, is not precluded by slight omissions from receiving a fair compensation, according to such contract, where the breaches can be paid in damages.” That was a contract for the erection of a building, and the judge trying the…

<p>ERROR TO THE COURT OF COMMON PLEAS OF NORTHUMBERLAND COUNTY.</p> <p>' No. 433 January,Term 1889, Sup. Ct.; court below, No 57 February Term 1888, C. P.</p> <p>On December 26, 1888, Catharine Paul, et ah, children and a grandchild of Cornelius Maurer, deceased, brought ejectment against Jacob Long and Rachael, his wife, to recover certain realty of which the said decedent died seised. The cause was submitted to the court in the form of a case stated, which showed the facts following:</p> <p>1. That the title for the land mentioned in the writ of ejectment in this case, was out of the commonwealth, on April 1, 1875.</p> <p>2. Samuel Weary was the owner in fee-simple of said land, and on April 1, 1875, conveyed the same by deed to Cornelius Maurer, his heirs and assigns.</p> <p>3. That Cornelius Maurer, the grantee in said deed, made, a will providing:</p> <p>“As to such estate as it has pleased God to intrust me with, I dispose of the same as follows, viz.:</p> <p>“ I give and bequeath to my beloved wife Sarah Maurer, all my household furniture, my library in my mansion or dwelling house my cow and heifer and hogs chickens and all my carpenter tools and all grain and other personal property not mentioned also all moneys and money due me or hereafter may come due to be collected by my beloved wife Sarah Maurer herein named as soon after my deceased as can be consistently with a property settlement of all my debts; and to have an to hold the same to her and assigns, and I also give devise and bequeath to her my said wife Sarah Maurer all my improvements and income of my messuage and lot and house where I now live and all that peace of land where Samuel Weary lived now deceased bud now occupied by his wido Catharine Weary on which a dwelling house and barn is on containing 93 acres more or less with its appurtenances; and all that piece or parcels of land situated &c here described on the South by Mahanoy Creek on the West by Benjamin Kness and others on the North by land of the estate of Thomas Henninger on the east by lands of Amos Yastine and my beloved wife Sarah Maurer is to pay all my debt and if she cannot pay it she shall sell so much of the land to pay for the rest of the land and keep it for her one youse, as long as she keeps my name and after she marries and dound keep my name any more she shall have the one half of all my real and porsonel property for her own youse and the other half I beques to my 3 sisters share and shore alike Catharine intermarried to Elias Paul, Sellóme intermarried with John Groh, Lusina intermarried with Joseph B. Becker.</p> <p>“ Lastly I appoint my esteemed friend Jarred Henninger to be the executor of this my last will and testament after my beloved wife Sarah Maurer dound keep my name my above executor shall thevide it to my wife the one half of all real and personall property and the other half to my three sisters share and share alike if can be devided without spoyling the hole if spoyling the hole he shall selling it at public sale and divided the money is directed in witness whereof, I Cornelius Maurer the testator have to this my will written on one sheet of paper set my hand and seal this tenth day of September A. d. one thousand eight hundred and seventy eight.”</p> <p>4. That the testator died on September 21, 1878, and the will was probated on October 9,1878, and letters testamentary granted to Jarred Henninger, the executor named in the will.</p> <p>5. The testator left surviving, Sarah Maurei’, his widow, (no children,) and the three sisters named in the will, to wit: Catharine, intermarried with Elias Paul; Salome, intermarried with John Gfroh, and Lucina,’ intermarried with Joseph B. Becker; Lucina and her husband, Joseph B. Becker, both died since the death of the testator, and left, surviving, James D. Becker, a son, who with the other two sisters are the plaintiffs in this case.</p> <p>6. That Sarah Maurer, his widow, did not re-marry, but died as the testator’s widow, and she left surviving her Jacob Long, father, and Rachael Long, mother, and brothers and sisters, who are in possession of the premises mentioned in the writ of ejectment.</p> <p>7. If the court be of opinion that the title and right of possession to the land described in the writ of ejectment, (which is made part of this case stated,) vested, upon the death of the testator or his widow, in the plaintiffs under the intestate laws, then judgment to be entered in favor of' the plaintiffs. If, however, the court be of opinion, that a fee passed under the will to the widow, then judgment to be entered for the defendants for the premises mentioned in the writ. The costs to follow the judgment, and either party reserving the right to sue out a writ of error therein.</p> <p>On March 7,1889, the court, Rockefeller, P. J., filed the following opinion:</p> <p>The question in this case is whether under the will of Cornelius Maurer, the testator, his widow took an estate in fee, or a life estate, or during widowhood only. If she took a fee, then the defendants, who are her heirs, are entitled to recover the land in question; but if she took a life estate or during widowhood only, then the plaintiffs, who are the heirs of the testator, are entitled to recover.</p> <p>It is alleged that the scrivener, a justice of the peace, who wrote the will, was an uneducated Pennsylvania German, and this is abundantly manifested throughout the whole will; but still, we think that it was the intention of the testator to give his widow an estate, to remain hers so long as she should be or remain unmarried after his decease. Such intention is pretty clearly expressed.</p> <p>When a testator gives all his real and personal estate to his widow, as long as she shall remain unmarried and his widow, these are words of limitation which clearly show it to have been the intention to limit the duration, at longest, to the natural life of the widow. They can mean no more than during widowhood. In such a case, where there is no devise over, the remainder goes to the heirs under the general inheritance laws. Even a power to sell does not enlarge the estate to an absolute fee. Such authority confers only a power and not property : Cooper v. Pogue, 92 Pa. 254.</p> <p>In the case now before the court, in the first place, the will gives the widow and her assigns, all the personal estate, and as regards the real estate, it gives it to her as follows: “And I also give and bequeath to her, my said wife, Sarah Maurer, all my improvements and income of my messuage, and lot and house where I now live, (being the land for which this ejectment is brought, and also other lands therein described,) and my beloved wife, Sarah Maurer, is to pay all my debt, and if she cannot pay it, she shall sell so much of the land to pay for the rest of the land, and keep it for her one youse as long as she keeps my name.” Then follows a direction as to what shall be done, in case the widow marries again, or does not remain his widow, which is as follows: “And after she marries anddound keep my name anymore, she shall have the one half of all my real and personal estate for her own youse, and the other half I beques to my 3 sisters share and share alike, Catharine intermarried with Elias Paul, Sellóme intermarried with John Groh, Lusina intermarried with Joseph B. Becker.” Then after the appointment of an executor, the will further reads as follows : “ After my beloved wife Sarah Maurer dound keep my name my above executor shall divide it to my wife, the one half of all real and personal property and the other half to my three sisters share and share alike if can be divided without spoiling the hole if spoiling the hole he shall selling it at public sale and divided the money is directed.”</p> <p>It is strenuously contended, on the one hand, that under the said latter parts of the will, in case the widow had re-married, she would have taken an estate in fee in the one half of the land, or in case of a sale, one half of the proceeds absolutely; and that that being the case, it follows that the testator intended to vest a fee in the whole of the land in the widow, in the first instance. [On the other hand, it is argued, and it was so held by the learned auditor, that by the said latter clauses it was only intended that in the event of the widow re-marrying she should have the one half of the real and personal estate “ for her own use; ” that is, to be used by her during life.] 3 As the widow did not re-marry, no question of that kind arises in the case, except so far as the whole will must be taken together in order to ascertain the intention of the testator.</p> <p>It is well settled as a general rule of law, that a devise of the rents, issues and profits of land, is equivalent to the devise of the land itself, but the intent to dispose of land is not usually manifested by disposing of the income, rents, and use only thereof; and in such cases, it has always been held that the devisee only takes the land for such length of time as he is given the income, rents and profits: France’s Est., 75 Pa. 220. In the present case, it being clear that the will only gives the improvement and income of the land, or the land itself to the widow, for her own use during widowhood, which would mean, at the longest, during the natural life of the widow, I am of opinion that it by no means follows that the latter clauses giving her the one half of the estate for her own use, or the one half of the proceeds of a sale in case of remarriage, necessarily enlarges the life estate given in case she remained unmarried. The one is a provision in case the widow remained unmarried, and the other a provision in case she re-married.</p> <p>I think it is quite likely that the scrivener intended to create a life estate only in the one half of the whole estate in case the widow re-married, but perhaps he has not clearly so expressed it. Looking at the whole scheme of the will, nothing would seem more natural. The meaning of the will in this respect may be doubtful, but in that case the construction is to be as conformable as possible to the general rules of inheritance: France’s Est., supra. If the contention of the plaintiffs is correct, the land goes to the parties who would be entitled to the same under the general inheritance laws of the state; but, if the construction contended for by the defendants should be adopted, it would go to parties who are entire strangers to the blood of the testator. [The same construction contended for by the plaintiffs, it seems, was put upon the will by the widow herself, when a part of the proceeds of sale of some of the land sold by the executor and the widow, for the payment of debts, was distributed by the Orphans’ Court of this county. See report of W. B. Faust, Esq., auditor, filed January 7, 1884, and the opinion of the court, confirming the same, filed April 7, 1884.] 3 The learned auditor gaye her the interest on the proceeds, which represented the land, and she éxpressly declined, in writing, to accept.</p> <p>I am of opinion that the title and right of possession of the land described in the writ of ejectment, admitted at the argument to be the same land described in the will as the messuage and lot and house where the testator lived, vested upon the death of the testator and his widow, in the plaintiffs, the heirs of the testator, and therefore, judgment in favor of the plaintiffs.</p> <p>Exceptions to the foregoing decision were dismissed by the court, whereupon the defendants took this writ, specifying that the court erred:</p> <p>1, 2. In entering judgment on the case stated in favor of the plaintiffs.</p> <p>3. In considering matters not part of the ease stated or facts admitted upon which the court was to pass and enter judgment. [ ] 3 3</p>

<p>ERROR TO THE COURT OF COMMON PLEAS OF NORTHUMBERLAND COUNTY.</p> <p>No. 204 January Term 1889, Sup. Ct.; court below, No. 898 May Term 1887, C. P.</p> <p>On April 21, 1887, William II. Bahner brought debt against the Stone Valley Mutual Fire Ins. Co. to recover on a policy of insurance issued by the company defendant.</p> <p>The policy was issued on August 2, 1884, and contained the following provision: “Provided, however, and it is hereby declared that.....the aggregate amount insured in this and all other companies, on the above mentioned property, shall not exceed two thirds of the cash value.” The insurance on certain of the plaintiff’s property, as recited therein, was as follows: barn, $466; produce, $400; utensils and reaper, $200.</p> <p>On November 6, 1886, plaintiff took out a policy in the Phoenix Ins. Co. under which, inter alia, the following of his property was insured for the amounts stated: barn, $475 ; produce, $600; utensils and reaper, $180. At the time of taking out this second policy, plaintiff gave no notice of the fact to the defendant company, but there was no evidence of a provision in the defendant’s policy requiring such notice.</p> <p>On January 5, 1887, plaintiff’s property was accidentally destroyed by fire. An adjuster from the Phoenix Ins. Co., adjusted the loss, and apportioned it as follows : Due the plaintiff from the Phoenix Ins. Co. $798.48, and from the Stone Valley Co. $625.47. The Phoenix Ins. Co. subsequently paid its proportion, but the defendant company refused to do so, on the ground that the condition of its policy prohibiting insurance to more than two thirds of the value of the property insured had been violated: hence this suit.</p> <p>In the statement of loss furnished by the plaintiff to the defendant company, which was signed and sworn to by him, and which was in evidence, the values of the property insured were stated as follows: barn, $700; hay, grain and straw in barn, $600; farming implements, $800; total, $1,600. On the trial, plaintiff testified that this was a low estimate of the cash value of the property at the time it was destroyed.</p> <p>At the close of the plaintiff’s testimony .the defendants moved for judgment of nonsuit. The motion was granted, and judgment of nonsuit entered with leave, etc.</p> <p>The rule to show cause why the judgment of nonsuit should not be lifted having been argued, the court, Rockefeller,, P. J., filed the following opinion :</p> <p>The plaintiff gave in evidence his policy of insurance on which this suit was brought, which policy contains a provision which is as follows: “That the aggregate amount insured in this and all other companies, on the above mentioned property, shall not exceed two thirds of the cash value.” He then proved, by his own oath, the cash value of the property insured, both at the time the insurance was taken, and at the time of the loss. He also gave in evidence a subsequent policy of insurance on the same property, and the two policies in evidence showed conclusively that the aggregate amount insured in the two companies, on the property mentioned therein, exceeded two thirds of the cash value. There was no notice given to the defendant company of the subsequent policy. Indeed tbe plaintiff testified tbat at tbo time be procured the second policy, ho thought the first had expired. This evidence, we think, put the plaintiff entirely out of court. He may have supposed that the defendant would offer evidence to prove the cash value of the property, and closed his case. But the defendant did not dispute tbe valuation of the property as established by the plaintiff himself, and without offering any testimony, moved the court for a nonsuit, which was granted. If the defendant had offered any evidence as to the cash value of the property insured, it is very probable the court would have permitted the plaintiff to call witnesses in rebuttal, even if it would have been out of order. The defendant not having offered any such testimony, it became unnecessary for the plaintiff to call any other witnesses.</p> <p>In the case of Insurance Co. v. Slockbower, 26 Pa. 199, it was decided that, “ where a policy of insurance provides ‘ that the aggregate amount insured in this and other companies, on the above mentioned property shall not exceed two thirds of the estimated cash value,’ any further insurance, being in violation of the agreement, would render the policy void.” The case of Mitchell v. The Lycoming Mut. Ins. Co., 51 Pa. 402, decides the same thing. See, also, Lycoming M. Ins. Co. v. Mitchell, 48 Pa. 367, and Simpson v. Penn. F. Ins. Co., 88 Pa. 250. It is contended that these cases are not to the point, for the reason that the respective clauses therein are against over insurance on the estimated cash value, whereas the present policy provides that the aggregate amount insured on the property “ shall not exceed two thirds of the cash value.” I take it, that in order to recover under the terms of the policy in suit, it was indispensably necessary for the plaintiff to prove the value, for the policy provides as follows : “ The said loss or damage to be estimated according to the true and actual value of said property at the time of the loss.” The plaintiff did prove the cash value of the property, if he proved anything, both at the time of insuring and the loss.</p> <p>In the brief furnished by the plaintiff’s counsel, it is strenuously contended that the policies of insurance, in the present case, show it to be a case of double insurance. I am of opinion that this is correct, and that for that very reason there can be no recovery on the policy in suit. The cases of Sloat v. Royal Ins. Co., 49 Pa. 14, and the New York case therein eited and so much relied on by the late Chief Justice Read, are cited to show that the present is a case of double insurance. Both those cases point out what is and what is not double in-insurance, and it was held in both that the character of the respective policies in question in each, did not make them cases of double insurance, and. that they were, for that reason, not within the meaning of a clause in the first policies prohibiting double insurances without notice to the insurer. I think no one can read the present policies and come to the conclusion that they do not constitute, as regards the property destroyed by the fire, a case of double insurance, and that is just what the clause referred to in the policy in suit was intended to prohibit, beyond two thirds of the cash value.</p> <p>The rule is discharged.</p> <p>Thereupon the plaintiff took this writ, assigning for error the entering of the judgment of nonsuit and the refusal to vacate said judgment.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS OE PERRY COUNTY.</p> <p>No. 43 July Term 1889, Sup. Ct.; court below, No. 38 April Term 1889, G. P.</p> <p>On March 1, 1889, a case stated in the nature of a special verdict, was submitted, -wherein Linn C. Lightner was plaintiff, and Samuel R. Lightner, guardian of Linn C. Lightner, was defendant. The case stated set out the following facts:</p> <p>I. That Wm. H. Lightner, died on June 19, 1886, testate, resident of the township of Tyrone, county and state aforesaid, leaving to survive him two sons, Linn C. Lightner, of whom Samuel R. Lightner is guardian, and Horace W Lightner, of whom Henry P. Lightner is-guardian, the said Linn C. Lightner, arriving at the age of twenty-one years on or about March 25, 1889.</p> <p>2. That contained in the will of the said Wm. II. Lightner, deceased, is, inter alia, the following:</p> <p>“I desire that my son Linn C. Lightner receive $1,000 as soon as he arrives at the age of 21 years, and that the remainder of his share be invested in a farm, he the said Linn C. Lightner having full control and management of farm, and receiving all revenues and proceeds therefrom, hut not having power to sell or convey said farm; and in case that the said Linn C. Lightner dies without legal issue or widow then the farm reverts to Horace W. Lightner or his legal heirs, hut in the event of Linn C. Lightner dying and leaving issue, then the two-thirds of the farm reverts to his children and the interest of one third to his widow, but if he leaves no widow-then the whole of farm will belong to his children.</p> <p>“And I hereby appoint Joseph Wagoner, D. B. Milliken and my son Linn C. Lightner to select and purchase the farm for my sou, provided however that all three of the persons named are satisfied and agreed both as to location and price of farm.”</p> <p>3. That by certain decrees of the Orphans’ Court of the said county and state, of dates September 14, 1886, April 13, 1887, and April 14, 1888, the said Linn C. Lightner received certain moneys amounting in all to the siun of $700, and by certain payments made by the said guardian, Samuel B. Lightner, the full sum of $1,000 was paid.</p> <p>4. That the question is, does the $1,000 advanced to the ward, Linn C. Lightner, by the guardian, Samuel B. Lightner, pay, in full, in accordance with the terms of the will of the said Wm. II. Lightner, or is the said Linn C. Lightner entitled to receive an additional $1,000 upon his arriving at the age of twenty-one years, the $1,000 already paid him being advanced under tbe decrees of the said court for necessaries.</p> <p>5. That Linn C. Lightner is entitled by said will, at the death of his father, to $8,000, and that the same has been upon interest since his death, and at this date — nearly three years — ■ has this fund been upon interest. No farm has ever been purchased for Linn C. Lightner, as his father’s will directed and contemplated, nor have the referees named in the will of William H. Lightner either fixed location, value, or attempted so to do, of a farm for said Linn C. Lightner.</p> <p>6. If your honorable court find that he, the said Linn C. Lightner, is entitled to receive the additional $1,000, then judgment for the plaintiff; if otherwise, judgment to be entered for the defendant; the costs to follow the judgment and either party reserving the right to sue out a writ of error therein, without oath or bail.</p> <p>The will of the testator contained also the following provisions :</p> <p>“I will and bequeath to my son Horace W. Lightner one thousand dollars ($1,000) on account of work done and attention to me during my illness.”</p> <p>[Here followed the provisions quoted in the case stated.]</p> <p>“ It is my desire that my son Horace W. Lightner receive his portion of this bequest when he arrives at the age of twenty one years.”</p> <p>*********</p> <p>“ Further it is my desire that in case my son Horace W. Lightner should die before arriving at the age of twenty-one years, that his share of my estate be invested in real estate in the same manner and by the same persons for my son Linn C. Lightner, he having just the same interest in it and receiving the same benefits from it that he does from his own share, but no power to sell or convey the same.”</p> <p>On March 29, 1889, the court, Barnett, P. J., filed an opinion, which after stating the facts agreed upon, proceeded:</p> <p>Under this statement of facts it will be observed that no provision is made in the will for the support and education of Linn C. Lightner during his minority; also, that no question is raised as to the propriety of the decrees made by the Orphans’ Court, but on the contrary the fact as stated is, that the $1,000 were “advanced under the decrees of said court for necessaries.” We are of opinion, therefore, that the case falls within the provisions of § 13, act of March 26, 1832, P. L. 193: “ When any one shall die, leaving an infant child or children, without having made an adequate provision for the support and education o'f such child or children, during their minority, the Orphans’ Court may direct a suitable periodical allowance, out of the minor’s estate, for the support and educabion of such minor, according to the circumstances of each case; which order may, from time to time, be varied by the court, according to the age of the minor and circumstances of the case.”</p> <p>Upon reference to the will itself, it appears the testator having given a legacy of $1,000 to his son Horace W. Lightner, then further provides : “ It is my will that all the balance of my property be divided equally between my two sons Linn C. Lightner and Horace W. Lightner in the following manner; ” and then follows the provision copied into the case stated. There is here a separate and antecedent gift, which is independent of the directions as to time of payment, and therefore the legacy of $1,000 to Linn C. Lightner is a vested legacy: Seibert’s App., 13 Pa. 503; Bowman’s App., 34 Pa. 19. But whether the legacy be vested or contingent, the legatee, by virtue of said act of assembly, may have an allowance, at least out of the interest, for his support and education: Seibert’s App., 19 Pa. 4.9; Seitz’s App., 87 Pa. 159. We are not aware that it has been decided that such allowance may not be made out of the corpus of the legacy. That question was left undecided in Leiby’s App., 49 Pa. 186.</p> <p>As to the remainder of Linn C. Liglitner’s share, directed by the testator to be invested in a farm, the intention being clear to give only the usufruct of the investment to said legatee for life, and after his death the investment or the, farm purchased therewith, to his heirs mentioned, Linn C. Lightner has no absolute right of property in the corpus of the fund to be invested ; this was otherwise disposed of by the testator: Bentley v. Kauffman, 86 Pa. 99. But he had an absolute right of property in the vested legacy.</p> <p>Furthermore, it would appear from the will (which was presented with the case stated) that Linn C. Lightner was not intended to come into the enjoyment of either the absolute legacy, or the farm, until he had attained the age of twenty-one years. The provision respecting Horace is, “ It is my desire that my son Horace W. Lightner receive his portion of this bequest when he arrives at the age of twenty-one years.” In respect to Linn C. Lightner it is, “ I desire that my son Linn C. Lightner receive $1,000 as soon as he arrives at the age of twenty-one years, and that the remainder of his share be invested in a farm.” That remainder would be the residue of his share of the estate, principal and interest, after deducting the one thousand dollars ; or, in other words, the whole of Linn C. Lightner’s share of the estate, with its accumulated interest at the time he attains his majority, is to be invested in a farm, excepting only the legacy of one thousand dollars. If now we give said legatee “ an additional $1,000 upon his arriving at the age of 21 years,” it can only be done by taking from the remaindermen property to which they have an absolute right, and, in violation of that right and the manifest intention of the testator, bestowing it upon one absolutely who is entitled only to a life interest.' This we think cannot be done. If the legatee has been advanced the corpus of his own estate, no wrong at least has been done to any other person; but if it now be paid from the corpus of another’s estate, the remaindermen would have just cause of complaint.</p> <p>Being of opinion that the said Linn C. Liglitner is not entitled to receive the additional $1,000, we therefore, in accordance with the terms of the case stated, now, this March 29, 1889, enter judgment for the defendant.</p> <p>Judgment having been entered the plaintiff took this writ, alleging that the court erred in entering judgment for the defendant.</p>

<p>[To be reported.]</p> <p>1. The administrator of an insolvent decedent has the right to collect and administer the assets of the estate, and neither creditors nor heirs can be heard to object to credits taken in an account for incident and necessary expenses, except on the ground that the credits are excessive.</p> <p>2. An agreement in good faith by an administrator of an insolvent decedent to allow to an attorney a contingent collection fee of 50 per cent, is not necessarily invalid as against decedent’s creditors; they can object to it only if unreasonable and in fraud of their rights.</p> <p>3. Whether, under § 33, act of June 13, 1836, P. L. 548, a poor district which has supported a poor person, can maintain a claim in the Orphans’ Court for reimbursement out of dioses in action falling due after his death and collected by his administrator, not decided.</p>

No. 59 July Term 1889, Sup.-Ct.; court below, No. 5 August Term 1889, C. P. On April 18, 1889, a case stated was submitted, in which Robert P. Cochran was plaintiff and Thomas P. Cochran, defendant. The facts are fully set forth in the following opinion of the court, Barnett, P. J., filed April 29, 1889.

<p>[To be reported.]</p> <p>1. An award by the Orphans’ Court to a creditor of a decedent, of the amount of his claim out of funds adjudged to be in the hands of an executor, is not the equivalent in law of actual payment of the claim.</p> <p>2. If such creditor, by reason of the executor’s insolvency, fails to receive payment of the sum awarded him, he is entitled to come in upon a second fund i-aised in the same estate for a pro rata share thereof.</p> <p>3. An order, pending exceptions to an auditor’s report, directing payment of an award to a creditor unaffected by them, is a matter within the discretion of the court, and the creditor’s omission to apply for such order is not laches.</p>

<p>(a) By the “terms of consignment” attached to an invoice and accepted by the consignee, it was stated that the goods consigned were the properly of the consignors, were so to remain until fully paid for, and that the consignors shipped and delivered them upon the express condition that the consignee should remit a sum certain therefor, within a time certain, or return the goods.</p> <p>1. The transaction, evidenced by such tei-ms, was not a bailment but a sale to the consignee, with an agreement that the title was to remain in the consignors until the price was paid: the arrangement was valid between the parties to it, but the secret lien attempted to be created could not affect the consignee’s creditors.</p> <p>2. Whatever the form of the agreement, if the pur-pose of it is to coverup a sale and preserve a lien in the vendors for the price of the goods, it is void as respects creditors of the vendee, whether the credit is given before or after the delivery of the goods; a consignment for such an object is no better than any other device.</p>

<p>[To bo reported.]</p> <p>1. Tire granting of wholesale licenses being a matter specially committed to the Courts of Quarter Sessions by the act of May 24, 1887, P. L. 194, upon a writ of certiorari the Supreme Court may review the proceedings of such courts therein, so far as to see that they have kept within the limits of the powers conferred, and have exercised them in conformity with law.</p> <p>2. The provision of the act of May 24, 1887, P. L. 194, that wholesale licenses to dealers, brewers, distillers, bottlers, etc., “shall be granted only by the Court of Quarter Sessions of the proper county, in such manner as is provided by existing laws,” does not confer upon such courts the discretionary powers conferred by the act of May 13, 1887, P. L. 108, relating to licenses to sell liquors by retail.</p> <p>8. The retail license act of May 13, 1887, being an act to restrain and regulate the sale of liquors, and the wholesale license act of May 24, 1887, being an act providing for revenue, with no reference in the latter act to the provisions of the former, the “ existing laws ” referred to in the latter act are the existing laws in force in the proper county relating to the granting of wholesale licenses.</p> <p>4. The existing law relating to the granting of wholesale licenses in Allegheny county is the act of April 3, 1872, P. L. 843, which, in respect of the qualifications of applicants, is unropealed by the act of May 24, 1887, P. L. 194, and imposes upon applicants no qualifications save that they must be citizens of the United States, of temperate habits, and of good moral character.</p> <p>5. Wherefore, a petitioner for a wholesale license as a dealer, brewer, distiller, or bottler, etc., in said county, who has presented his application in due form and has complied with the requisites of the law, has prima facie a right to such license, and, in the absence of anything upon the record to impeach such right, the refusal of the court to grant it will be reversed.</p> <p>6. If, however, a remonstrance is filed setting forth that the petitioner is disqualified, because not a citizen of the United States, or not of temperate habits, or not of good moral character, it is the duty of the court to hear the case, and, if the remonstrance is sustained by evidence, to refuse the license; and the refusal, on such grounds alone, is the exercise of a discretionary power which is not reviewable.</p>

<p>[To be reported.]</p> <p>1. In granting licenses to wholesale dealers, brewers, distillers, ote., under the act of May 24, 1887, P. L. 194, the Court of Quarter Sessions of Philadelphia county has not the large discretion conferred upon it by the retail act of May 13, 1887, P. L. 108: Pollard’s Petition, ante, 507; Nordstrom’s Petition, post, 542; Knarr’s Petition, post, 554.</p> <p>2. Tiie discretion conferred upon that court by the act of May 21, 1887, is a qualified and limited discretion, and is confined to the inquiry whether the applicant for a wholesale license is a citizen of the United States, of temperate habits, and of good moral character.</p> <p>3. Where no objection or remonstrance appears on the record of the case, alleging that the petitioner was disqualified in respect of either of the above grounds, citizenship, temperate habits, or moral character, the order of the court refusing the license to the petitioner will be reversed.</p> <p>4. The said act of May 24, 1887, confers upon that court no power to determine the fitness of a person to receive a wholesale license upon the findings of the court upon other matters outside of the qualifications mentioned, to wit: citizenship, habits or moral character.</p> <p>5. The return to a writ of alternative mandamus requires the greatest possible certainty; not merely certainty to a common intent, or certainty to a certain intent in general, but certainty to the greatest possible intent; or, as it is sometimes called, certainty to a certain intent in every particular.</p> <p>6. A return to such writ directed to the Court of Quarter Sessions refusing the petition of a corporation for a brewer’s wholesale license, setting forth that an averment of the relator’s petition was incomplete, inaccurate and misleading, but not showing in what respect; that the company had conducted its business in violation of law, but not showing what law; that the company was not a fit person to receive the license applied for, but not showing a cause of disqualification within the law; that the company did not possess a good moral character, but not averring that the officers and directors thereof, were respectively men of bad moral character; such return is insufficient.</p>

<p>[To be reported.]</p> <p>1. The provision of the wholesale license act of May 24, 1887, P. L. 194, that licenses to dealers, brewers, distillers,bottlers, etc., shall be granted “ in such manner as is provided by existing laws,” does not incorporate into that act the discretionary powers conferred upon courts by the act of May 13, 1887, P. L. 108; Pollard’s Petition, ante, 507 ; Prospect Brewing Co.’s Petition, ante, 523.</p> <p>2. In the absence of any local law in force in Jefferson county to the contrary, the general act of March 22, 1867, P. L. 40, a supplement to the act of March 31, 1856, P. L. 200,† is in force in said county, and is to be taken as the existing law therein, referred to in the provision quoted from the said act of May 24, 1887, P. L. 194.</p> <p>3. The act of March 22,1867, P. L. 40, places wholesale licenses and retail licenses upon the same plane, and confers upon the Courts of Quarter Sessions the same discretion in granting or refusing a wholesale license as in the case of an application for a retail license: Reed’s Appeal, 114 Pa. 452.</p> <p>4. The Court of Quarter Sessions, in the exercise of a lawful discretion, may refuse to approve the bond accompanying an application for license, when the name of a surety upon the bond and to the jurat as to the sufficiency thereof was erased when presented, and the erasures were without explanation.</p> <p>5. Wherefore, when the return to an alternative writ of mandamus sets forth as grounds for the refusal of a wholesale license in said comity, such a defective bond, and that the license was refused because, in the opinion of the court, the conservation of the public peace and morals demanded it, the peremptory writ will be refused.</p>

<p>[To be reported.]</p> <p>1. Where the general laws relating to the granting of licenses, to wit, the acts of March 31,1856, P. L. 200; April 20,1858, P. L. 365 ; March 22, 1867, P. L. 40, were in force prior to the act of May 24, 1887, P. L. 194, the granting or refusing of licenses to wholesale dealers in liquors continues to be within the discretion of the Court of Quarter Sessions of the proper county: Nordstrom’s Petition, ante, 542.</p> <p>2. Wherefore, when, from the petition for an alternative mandamus and the accompanying record, it appears that the Court of Quarter Sessions of Jefferson eounly heard an application for a wholesale license, and upon due consideration refused it, although no objection or remonstrance was filed of record, the writ will be refused: Pollard’s Petition, ante, 507, and Prospect Brewing Co.’s Petition, ante, 523, distinguished.</p> <p>3. The office of a mandamus, in such cases, is to require the performance of a judicial function: if a judge refuse or neglect to hear, the Supreme Court will enjoin upon him the performance of that duty; but, when he has heard and determined, the exercise of his discretion will not be revised unless in extreme cases: Raudenbusch’s Petition, 120 Pa. 328 ; Commonwealth v. McLaughlin, 120 Pa. 518; Newlin’s Petition, 123 Pa. 541.</p>

<p>Where the charter of a mutual fire insurance company provided that the managers of the company, when they made an assessment upon policy holders, should “publish the same,” and this notice was referred to in other parts of the incorporating act as a “ public notice,” and as “ advertising an assessment,” advertisement in a newspaper is the kind of notice required: Lincoln v. Wright, 2:5 Pa. 76, and Sinking Springs Mut. Ins. Co. v. Hoff, 2 W. N. II, distinguished.</p>

<p>[To be reported.]</p> <p>(a) In an issue devisavit vel non, raising the questions of testamentary capacity and undue influence, after testimony sustaining the alleged will, there was much testimony tending to establish that though the deceased in early life was of excellent mind, culture and deportment, yet in his later years he was addicted to drunkenness, profligacy and sexual ■excesses:</p> <p>(b) That within three months before the alleged will was executed, his mental powers had become so impaired by his profligate habits that he was then in such a condition of chronic alcoholicinsanity, with dementia, that, in the judgment of medical witnesses and experts, it was almost impossible there should be a recovery with mental capacity:</p> <p>(o') That for several years, and up to the time when she became his wife, the deceased had been living with the sole beneficiary under his will, as ■ his mistress; that the marriage was suggested to him by another and was performed in the house of the beneficiary, where the will was executed on the second day thereafter, and where the testator died on the third day.</p> <p>1. The record of a hospital for the insane, indicating that the testator’s father, thirty-eight years before, was admitted to the hospital because of intemperance, continued for six months and resulting in melancholia, was inadmissible, when there was no proof or offer of proof that the species of melancholia with which the father was affected was transmissible by inheritance.</p> <p>2. It was error, under the testimony in the case, to charge the jury in affirmance of a point by the proponent, that there was no sufficient evidence of general iusanity of the deceased, and that therefore the burden of proof was upon the contestants to show the existence of testamentary capacity at the very moment of the execution of the will.</p> <p>8. The testimony upon the subject of the previous condition of the testator should have been submitted to the jury, with instructions that if it failed to satisfy them that there was a condition of general insanity at any time before the will was made, then the burden of proof of testamentary incapacity at the time of execution was on the contestants.</p> <p>4. The language of a point to the effect that if the jury found from all the evidence in the case that there was such imbecility of intellect as “rendered the testator incapable of appreciating, knowing, remembering, and calling to mind the value and extent of his property, at the time of making and executing said will,” was entirely too broad.</p> <p>5. A disposing mind and memory is one in which the testator is shown to have had, at the making and execution of a last will, a full and intelligent, consciousness of the nature and effect of the act he was engaged in; a full knowledge of the property he possessed, and an understanding of the disposition ho wished to make of it by the will, and of the persons and objects he desired to participate in his bounty.</p> <p>6. It was error to refuse instruction requested, that the jury might take into consideration “the state and condition of mind of the testator,” at the time of making and executing the will, “the condition and relative situation of the testator and the proponent, the situation, surroundings, and condition of the testator himself, the nature and extent of his property, all the circumstances under which the will was made and the provisions of the will itself.”</p> <p>7. While in the present caso, the fact that a marriage had taken place prior to the will, relieved the proponent from the rule oí Dean v. Regley, 41 Pa. 312, as to undue influence of a mistress, it did not relieve the testamentary act from the imputation of a continuance and a present exertion of an undue influence, if the jury in view of all the facts inclined to such a belief.</p> <p>8. It is not true, in law, that one who has merely “given indications of mental unsoundness ” is not at liberty' to do wiiat he likes with his own, or that in such case “every sign of partiality or injustice must be viewed with strong suspicion; ” indications of insanity do not constitute testamentary incapacity, and Dr. Ray’s report in Pidcock v. Potter, 68 Pa. 353, is not the opinion of the court.</p> <p>9. There was no relevancy' or legal propriety in suggesting by a point a limit of time within which a radical change from a condition of testamentary incapacity might not take place, when there was abundance of testimony as to what the actual condition of the testator was at the end of that period, and ample opportunity to deliver direct testimony on the subject.</p> <p>10. If the testimony upon one side of a controverted question of fact is made prominent and conspicuous in the charge to a jury, common fairness requires that equal prominence should be given to ojjposing testimony having a contrary tendency, and the giving of such undue prominence to one side of the cause is ground for reversal.</p> <p>11. Averments of testamentary incapacity or undue influence need not be established by positive evidence as distinguished from circumstantial; it was error therefore, to charge in this case that the presumption, where a will was duly executed by a person of full age, that he was competent and not unduly influenced, must be overcome, not by doubtful testimony, but by positive evidence.</p>

<p>[To be reported.]</p> <p>1. A certificate of stock, issued by a corporation having legal power to issue such certificates, is a continuing affirmation that the holder therein named is the owner of the amount of stock specified, upon which a purchaser or pledgee, dealing with the person named in the certificate or his assignee, has a right to rely as against the corporation.</p> <p>2. If upon tire faith of a regularly issued stock certificate, a purchaser or pledgee of stock, which in fact has been fraudulently and collusively issued by officers of the corporation, advances money or parts with anything of value, the corporation is bound by way of estoppel, to indemnify him to the extent of his expenditure, against loss in consequence of the falsity of the certificate.</p> <p>3. A holder of such a certificate, who has received it as collateral security for a pre-existing debt from the person in whose name it was fraudulently issued, being uninjured by the falsity of the statements which it contains, has no claim upon it which he can enforce against the corporation.</p> <p>4. Such a certificate is worthless, as a certificate, and gives no rights of its own force. A transfer thereof passes to the transferee no right or claim to shares of stock. The only right which can exist upon it, as against the corporation, is created by the act of parting with a valuable considei'atiou in reliance upon its statements.</p> <p>5. When such a certificate is given in pledge, the thing pledged is not shares of stock, but merely a right to call upon the corporation for indemnity against any loss suffered in consequence of reliance upon its representation that the person therein named is the owner of the shares therein mentioned.</p> <p>6. If a fraudulent certificate is pledged by one who has no claim to indemnity thereon, and the pledgee receives, in settlement of his claim to be indemnified for his advances made on the pledge, genuine shares of stock, surrendering the spurious shares so pledged, such genuine shares do not become a substituted pledge in his hands, but are his absolutely.</p> <p>7. Wherefore, a pledgor of such certificate, who has himself no claim to be indemnified thereon, is not entitled to r-ecover from his pledgee who advanced money to him on the faith of it, any part of what the latter may have received from the corporation upon his claim for indemnity, although such claim may have been paid in genuine shares which after-wards increased in value to an amount exceeding the debt of the pledgor to the pledgee.</p>

<p>FROM THE DEOREE OF THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY, IN EQUITY.</p> <p>No. 138 July Term 1888, Sup. Ct.; court below, No. 373 March Term 1882, C. P. in Equity.</p> <p>To the number and term of the court below, above stated, Samuel Iluston, to the use of Charles P. Perot, assignee for the benefit of creditors, filed a bill in equity against E. W. Clark, William Sellers and John Sellers, Jr., praying for an account, and a decree that so much of the property of the Mid-vale Steel Company as was purchased or obtained by the defendants by means of the plaintiff’s stock, bonds and property assigned to them, should be transferred to the plaintiff, or its money equivalent paid to him.</p> <p>From the testimony taken before Mr. Amos Briggs, examiner and master, it appeared that in 1873 Samuel Huston, E. W. Clark and William & John Sellers were the owners of practically all the stock of the Midvale Steel Works,'a corporation organized under the act of July 18,1863, P. L. (1864) 1102. Huston was president of the company and had advanced to it up to January 1, 1873 about 0311,000. In May 1873, the company was practically insolvent, and a large part of its indebtedness had been personally guaranteed by Huston. On May 13, 3873, it appeared that the company owed E. W. Clark 0108,910 for advances and William and John Sellers, 0121,750 for advances. To other parties it was indebted in the sum of 0611,862.</p> <p>On the date last mentioned, an agreement in writing was entered into between Huston of the one part, and E. W. Clark and William and John Sellers of the other part, which was as follows:</p> <p>“ Whereas: The said party of the first part is liable, as maker of a certain promissory note, made for the accommodation of the Midvale Steel Works, for the sum of twenty thousand dollars, and is also liable upon certain notes endorsed by him, for the accommodation of said works; and Whereas: He has also joined with the parties of the second part in guaranteeing other notes of said works, on terms and in proportions agreed upon between them; and Whereas: These liabilities amount to a large sum, and he, the said party of the first part, may be unable to pay them when the said liability shall become fixed and ascertained; and Whereas: The said party of the first part is the owner of two thousand and thirty-two shares of the common stock, and two thousand two hundred and eighty-eight shares of the preferred stock of said works, and fifty thousand dollars of its bonds, and also holds a note of said works to the amount of fifty-one thousand five hundred dollars,* and Whereas: He has heretofore pledged fifty shares of the stock of the Philadelphia Insurance, Trust and Safe Deposit Company, belonging to him, as security for the said note of twenty thousand dollars, made by him, which is now held by the Fidelity Insurance, Trust and Safe Deposit Company; and Whereas: The said party of the first part has agreed with the said party of the second part that, if they will indemnify him against all debts of the said Midvale Steel Works, he will, on the terms hereinafter mentioned, assign, transfer and set over to said party of the second part, his said stock, bonds and note of the said works, and the said fifty shares of the stock of the Philadelphia Insurance, Trust and Safe Deposit Company, so pledged by him as aforesaid, and all the property pledged by him for said works, or to secure his liabilities for it; and the said parties have agreed to give said guarantee.</p> <p>“ Now the said party of the first part, for and in consideration of the premises, and of the sum of one dollar, to him in hand paid by the said party of the second part, the receipt whereof he acknowledges, and of the covenants hereinafter contained, has assigned, transferred and set over, and does hereby assign, transfer and set over to said party of the second part, all his said above-mentioned stocks, bonds, and note of the said Midvale SteelWorks, and the said fifty shares of stock of the Philadelphia Insurance, Trust and Safe Deposit Company, so pledged as aforesaid, and generally all property belonging to him, the said party of the first part, which now is or may be pledged or hypothecated with any creditors of said works, or any person or persons holding any note or notes made, endorsed, or guaranteed by him for the accommodation of said works, to have and to hold the same to them, the said party of the second part, their executors, administrators, and assigns, with full power to sell, pledge, or otherwise dispose of the same in the administration of or settlement of the affairs of said works, or in or for payment or the security of its debts, or any of them, or otherwise, as they, the said party of the second part, may deem best. And the said parties of the second part, for themselves, their executors, administrators, and assigns, in consideration of said assignment or transfer, and of the premises, do jointly and severally covenant, promise, and agree to and with the party of the first part, his executors, administrators, and assigns, that they now and at all times hereafter forever will save, protect, defend, indemnify, and keep harmless him the said party of the first part, his executors, administrators, from and against all and every of the debts, obligations, or liabilities of the said Midvale Steel W orks whatever the same may be, and from and against all suits, claims, actions, causes of action, debts, dues, damages, or demands against him arising out of his relation to or connection with the said steel works, either as president, director, or stockholder or otherwise, or as maker, indorser, or guarantor of any notes of or claims against said works.</p> <p>“And the said parties of the second part, do for themselves, their executors, administrators, or assigns, jointly and severally covenant and agree, that they will severally contribute a like amount of bonds, notes, and other securities, as Samuel Huston does hereby contribute or agree to contribute; that is to say, that the said William and John Sellers, Jr., as one party or person will contribute fifty thousand dollars in bonds of said company; fifty-one thousand five hundred dollars in notes of the said company; and the said Edward W. Clark will contribute a like amount. And the said William and John Sellers, Jr., as one person or party, and the said Edward W. Clark, will further each contribute stock equal in value to the said stock so heretofore pledged by the party of the first part, to or with the holders of his note, so made as aforesaid, for the accommodation of said company. All of which stock, bonds, and securities, hereby assigned and to be contributed, shall constitute a fund to be called the guarantee fund, for paying the debts of the said works other than the debts constituting or belonging to the said guarantee fund itself. And if after paying the said debts, bonds, notes, or liabilities to others, any surplus shall remain, all securities other than the bonds or notes of said works in or belonging or contributed to the said guarantee fund, shall first be returned or made good in kind or value to the party contributing the same; and if after they shall be so returned or made good, the parties to this agreement, the said William and John Sellers, Jr., for said purpose being treated as only one person or party, shall divide said surplus between them, in proportion to their several interests in the bonds and notes remaining in said guarantee fund, that is to say, said surplus shall be applied pro rata towards paying the notes and bonds in said fund, contributed by the parties thereto ; and if, after paying all the said bonds and notes in or belonging to said fund a surplus shall remain, the same shall be divided among all the stockholders of said works, in proportion to the amount of stock which they may severally hold.”</p> <p>In pursuance of the foregoing agreement, Huston transferred to Clark and William and John Sellers the stocks and securities mentioned therein. The defendants took charge of the works and paid the most pressing debts. They did not transfer, however, to the guarantee fund the securities they were to transfer under the agreement, but merely credited themselves with the advances made by them prior to May 18, 1873, to the amount promised by them to the fund. They also divided Huston’s bonds in the guarantee fund and transferred them to their own names. They continued operating the works, and made additional advances to the extent of $270,000. In 1880, the interest on one of outstanding bonds being in arrear, suit was brought on the bond, and judgment obtained against the company. Execution was issued upon the judgment and the property was sold thereon to the defendants for $450,000. The defendants then organized a new company under the name of the Midvale Steel Company. The facts connected with this sale, the plaintiff’s notice thereof, and the general conduct of the parties, are stated in the opinion of the Supreme Court.</p> <p>The master found that owing to a failure to file an annual statement of stocks, assets, etc., as required by §§ 33, 34, act of July 18, 1863, P. L. [1864] 1102, under which the Midvale Steel Works were incorporated, all the stockholders were liable as general partners; that the defendants had no right to appropriate any part of the guarantee fund to the payment of advances previously made by them; that the defendants were acting as agents for Huston under the agreement, and that Huston was entitled to an interest in the Midvale Steel Company coextensive with his interest in the old company at the time of tbe sale, and that defendants should account to him accordingly.</p> <p>To the report of the master, the defendants filed seventy-eight exceptions, which were overruled by the master and being filed with his report were renewed before the court.</p> <p>On June 9,1888, the said exceptions having been argued, the court in banc, Biddle, J., filed the following opinion:</p> <p>It appears that previous to May 13, 1873, M.r. Huston had made himself liable for the debts of the Midvale Steel Works to a very large amount, which neither he nor the steel works were able to pay. Under those circumstances he agreed with the defendants that if they would indemnify him against all debts of the Midvale Steel Works, and from all demands against him arising out of his relation to or connection with the said steel works, either as president, director, stockholder, or otherwise, or as maker, endorser, or guarantor of any notes of, or claims against, the said works, he would assign to them certain securities. To this the defendants assented, and on May 13, 1873, an agreement to that effect was reduced to writing. By this writing the defendants were to contribute to a guarantee fund double the amount contributed by the plaintiff, but neither party was to contribute their stock in the steel works to the guarantee fund, the plaintiff’s assignment to the defendant of his stock being made solely for the purpose of assuring to them the absolute control of the management of the corporation. The defendants, in the administration or settlement of the affairs of the works, or in payment or security of its debts, or otherwise, were to use the guarantee fund as they might deem best. They were to save the plaintiff harmless from all debts of the steel works, and from all liability incurred by him therefor. Tf, after the payment of the debts of the steel works any surplus should remain, it was to be applied to make good to the parties contributing the same all securities in the guarantee fund other than the bonds or notes of the works; to return or make good to the parties contributing the same their bonds or notes of said works which had been placed in the guarantee fund; and, finally, to divide any surplus still remaining among the stockholders. Under that agreement the rights and duties of the parties must be determined and the case decided. The defendants are undoubtedly bound to account under its provisions for the property of the plaintiff placed in their hands. This they allege they have been always ready and willing to do, and the evidence in this case, it seems to us, proves conclusively that all the property which was received by the defendants under the agreement of May 13,1873, was properly held and used by them and has been fully and correctly accounted for.</p> <p>This, however, is not the real point in controversy in this case, but the contention arises under an allegation, in which the learned master concurs, that the scope of the agreement is much broader than the effect given to it by the exceptants, and -that “ the agreement constitutes the defendants agents for Mr. Huston to manage and administer the affairs of the steel works, not merely for themselves, but for the joint account of all the parties to the agreement.” It is upon this utterly inadmissible assumption that a most elaborate and ingenious argument has been founded. It is contended that, although the works were subsequently sold under a prior mortgage, bearing date October 1, 1872, covering all its franchises, real estate, and fixtures, after the guarantee fund had become exhausted, and when the company owed the defendants $480,969.17 in excess of their contribution to the guarantee fund of $341,127.52, that Mr. Huston still had some interest in the property after the sale. This mortgage was foreclosed under judicial proceedings instituted in Court of Common Pleas No. 3, after a full advertisement and hearing, with the knowledge of Mr. Huston, and the proceeds distributed under a master, Mr. William Sellers becoming the purchaser for the sum of $450,000.</p> <p>Mr. Huston certainly contributed nothing to the purchase-money, and there is not a particle of evidence that the purchaser was his agent. They were both stockholders in a corporation whose property was sold under an order of court. This, of course, extinguished the stock of the old company, and wiped out not only the stock and credits of the plaintiff, but the stock and credits of the defendants. They purchased the property with none of these stocks and credits, but with their own cash and bonds in excess of Huston’s, after applying as many bonds, or their equivalent in money, as he did, to the debts of the company. We utterly fail to see what possible interest Mr. Huston has in the new company, or why he is entitled to the same proportion of capital stock of the new company that he held in the old.</p> <p>As the allegations in the bill, charging fraudulent conspiracy or confederacy, were withdrawn on the argument of the case, we are unable to see anything in it but a very simple business operation, by which the plaintiff has received all the protection the defendants contracted to afford him. The exceptions to the master’s report are therefore sustained and the plaintiff’s bill dismissed with costs.</p> <p>A final decree having been entered, the plaintiff took this appeal, assigning as error, in eighty-one several assignments, the decree sustaining the defendants’ exceptions to the master’s report and dismissing the plaintiff’s bill.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS NO. 3 OE PHILADELPHIA COUNTY.</p> <p>No 59 January Term 1888, Sup. Ct.; court below, No. 885 June Term 1886, C. P. No. 8.</p> <p>On August 31, 1886, J. Frank Hayes, trading as J. F. Hayes, brought ease for libel against tlie Press Co., Limited, declaring upon a publication made in the Sunday Press of August 9, 1886, which was as follows : »</p> <p>“HOTEL PROPRIETORS EMBARRASSED.</p> <p>“ A judgment was entered yesterday by the Third National Bank against J. F. & W. N. Hayes of the St. George’s Hotel, on a promissory note dated August 6th, and payable on demand for $1,500,”</p> <p>with the innuendo, “thereby then and there meaning that the said J. F. Hayes, the said plaintiff, was in bad circumstances, insolvent, and unworthy of credit.” The defendant company pleaded, not guilty.</p> <p>At the trial on February 8, 1888, testimony was adduced showing the facts sufficiently appearing in the opinion of the Supreme Court. On cross-examination, the plaintiff was asked:</p> <p>Q. Was this (the libel) not published in a number of other papers ? Objected to.</p> <p>By the court: I will admit that.1</p> <p>A. The fact of the record of the judgment was given in the other papers, or published in other papers.</p> <p>Q. But it was published in the Ledger, North American, Inquirer, and Times, — all except the word “ embarrassed.” Is that the only difference ? A. The head-line was omitted.</p> <p>At the close of the testimony, the court, Peed, J., charged the jury as follows:</p> <p>[The defendant in this case, the Press Company, Limited, published a statement about this plaintiff, which it bad the privilege, in its functions as a public newspaper, to publish. Beyond that, they had the right to make upon that or any other fact, of a public or somewhat public character, any reasonable and fair comment, and for the exercise of that right they are not to be liable unless the right has been abused. The question of fact, important for you to decide and ascertain is, whether there was such abuse. That depends upon what conclusion can be drawn from the fact of the entering of this judgment note or the entering up of a judgment upon the note.] 3 That is a matter, not of law, but of business practice, and one therefore which falls within your domain rather than within mine. It might well be that the entering of a judgment note against a man, so far as his credit is concerned, would have an effect upon his business credit, so as to cause damage to him; and it might well be that the entering up of a judgment note would not affect a man’s credit at all. It might be that the entering up of a judgment would be fatal to the credit of one man, and would not affect the credit of another man. Therefore all these are questions of fact for your decision and not questions upon which I can rule.</p> <p>[The only thing that caused me to hesitate in my disposition of the case was a doubt, and in expressing it I do not intend to bind you at all, a doubt as to whether there was sufficient evidence before you to satisfy you as to the plaintiff’s case.] 3 On that point you have the right and it is your privilege to differ from me, and if you think I am wrong in entertaini2ig that doubt, it is not only your privilege but it is your duty to find in a way which perhaps I would not find if I were in your place.</p> <p>[The first point is, whether the entering up of this judgment, taken alone and as a solitary fact, was so significant that a newspaper in the ordinary course of its daily work might well find that the person against whom such a judgment was entered up was in an embarrassed condition. That point is for you to consider.]4 And in considering it, you must consider the second point, which is, what is the meaning of the word “ embarrassed,” or “ embarrassment,” in connection with a man’s business or his credit ? In considering that word you are to take it in its ordinary sense, as men ordinarily intelligent would use such a word. You must ask yourselves, how would I describe, or in what condition would I understand a man to be, who is described as embarrassed ? I take it to be, and I am simply expressing my own opinion, not binding you, that a man who needs money for the purposes of his business, and is not able to get it without some difficulty, without difficulty which he feels, that man may be said to be embarrassed in his pecuniary affairs. A man who needs money and cannot readily get it, by the ordinary means, is a man who in my judgment would be an embarrassed man.</p> <p>-* * * «■ * -» * *</p> <p>You find that this man, so situated, undertakes to procure a loan of money from a bank. And the question comes up whether the demand of the judgment note on the one side and the giving of the judgment note on the other side, was such a matter as would indicate of itself that the man was in an embarrassed condition. If that was not fairly inferable from all the facts, if it was a reckless assertion on the part of the newspaper, made wantonly, with levity and with carelessness, then the defendant would be liable for the statement. On the other hand, if it was a statement which any fair-minded, intelligent man, with a knowledge of the circumstances and a knowledge of the community, would naturally make under the circumstances, [if it was such an inference as you and I would draw from the facts, then in my opinion they are not liable and it would not be your duty to find a verdict for the plaintiff.] 5 But the whole matter depends upon questions of fact, which you must find, and which I do not propose to find for you. In expressing any opinion upon the facts, I do it only to enlighten you and not to bind you.</p> <p>Now that covers the whole case. In the first place you are to consider the situation of the parties, whether the giving of this judgment note was such a fact from which, it might be inferred in this particular case that the man was in a condition of embarrassment; and secondly, whether the word “embarrassed” described the condition in which you may find that this man was.</p> <p>* * *- * # •* * *</p> <p>1 have been requested 'by the plaintiff to instruct you as follows:</p> <p>1. If you believe the plaintiff’s innuendo to be true, your verdict must be for the plaintiff.</p> <p>Answer: I have answered that point already in my general charge. That point unqualifiedly I cannot affirm.15,</p> <p>2. The libel is on its face actionable, and no defence whatever has been shown.</p> <p>Answer: That point I refuse.9</p> <p>3. It is your duty to infer legal malice in this case.</p> <p>Answer: That point I refuse.10</p> <p>4. This publication was not a privileged communication.</p> <p>Answer: I have defined in my charge how far it is privileged</p> <p>by telling you that a fair comment was admissible, but that an unfair and reckless comment, or one made in levity and carelessness was not admissible; this would take away the privilege.11</p> <p>The jury returned a verdict in favor of the defendant. A rule for a new trial having been discharged, judgment was entered on the verdict, when the plaintiff took this writ, assigning as error:</p> <p>1. The admission of defendant’s offer.1</p> <p>2-5. The parts of the charge embraced in [ ] 3 *°5</p> <p>7. The answer to plaintiff’s point.7</p> <p>9-11. The answers to plaintiff’s points.0*011</p>