Volume 128 — Pennsylvania State Reports

No. 87 January Term 1889, Sup. Ct.; court below, No, 427 September Term 1884, C. P. No. 3, in Equity. To the number and term of the court below, William H. Piper and John H. Lewars, trading as W. PI. Piper & Go., filed a bill in equity against Daniel Laughman and J. Chester Wilson, trading as D. Laughman & Co., averring-: That in 1874, W. PI.

<p>No. 123 July Term 1888, Sup. Ct.; court below, No. 1 April Term 1883, C. P. in Equity.</p> <p>On February 17, 1883, Henry Fulmer filed a bill in equity against David Williams, charging in substance that the plaintiff and defendant from October 15,1880, to September 4,1882, were tenants in common of certain slate quarries, which, however, were being worked exclusively by the defendants;— praying for an account by the defendant, (1) “ of the quantity of slate taken out and removed, the quality and value of them, and also an account of all rents and profits received or made from the exclusive use, occupancy and enjoyment of the premises so held in common;” (2), general relief.</p> <p>The cause being put at issue by answer and replication, Mr. John Rupp was appointed examiner and master, who found, the following facts:</p> <p>David Williams and Henry W. Harper, as David Williams & Co., were carrying on the business of mining and manufacturing slate in an opened and developed quarry upon certain lands near the borough of Slatington, of which David Williams was the owner of an undivided two thirds interest and Henry W. Harper of an undivided one third interest. Upon a judgment against Henry W. Harper, a writ of venditioni exponas was issued and the interest of Harper in the premises upon which the quarries were situated was sold at sheriff’s sale to the First National.Bank of Easton. By deed dated October 15, 1880, the First National Bank of Easton convejmd the title of the bank to Henry Fulmer, who soon afterward filed a bill in equity against David Williams for a partition of the premises, resulting in a sale of the entire title to Henry Fulmer, who received a deed and took possession of the lands on September 7, 1882.</p> <p>Other material findings of fact by the master were as follows:</p> <p>11. During the time that Fulmer and Williams were the joint owners of said premises, from October 15, 1880, to September 4, 1882, there was upon these premises an opened and well developed slate quarry with the beds of slate uncovered and exposed, stripping done and easily worked and producing large quantities of a superior quality of roofing slate, school slate and blackboard and mantel stock; with all the necessary machinery, buildings and appliances for quarrying, mining, hoisting and manufacturing roofing slate, blackboard and mantel stock and school slate, including engine house, engines and boilers, pumps, derricks, hoists, ropes, tools of all kinds, the necessary buildings and machinery for manufacturing blackboards and mantel stock, a marbleizing factory, with all the necessary machinery and appliances, all necessary buildings for storing slate of all kinds manufactured; all in good condition and in good working order, with the Lehigh Valley Railroad running close by tbe quarry, with conveniences for loading and shipping slate. There were also two tenant houses upon the premises.</p> <p>12. From October 15, 1880, to September 4, 1882, during the time Fulmer and Williams were the joint owners of said premises, the said'David Williams had the sole and exclusive possession of the premises, with all the buildings and appliances thereon erected and thereto belonging, worked said slate quarry and took therefrom large quantities of roofing slate, school slate and blackboard and mantel stock, and sold and converted the same to Ms own use, to the exclusion of his co-tenant, the said Henry Fulmer.</p> <p>13. After the said Fulmer got possession of the said premises the said Williams failed and neglected to render an account of the slate taken out of said quarry, to the said Fulmer, during the time of their joint ownership of the same, and this bill was then filed for an account.</p> <p>14. During the period of time that the said Fulmer and the said Williams were the joint owners of said premises, from October 15, 1880, to September 4, 1882, the said David Williams mined and quarried upon said premises and took from said slate quarry upon said premises and sold and converted to his own use, 3,899.18 squares of No. 1 roofing slate and 250.57 squares of No. 2 roofing slate, in all 4,149.75 squares of roofing slate, 1,147,750 school slate in the rough, of the standard measure of 7 by 11 inches, and 26,063 square feet of blackboard and mantel stock in the rough, an inch thick.</p> <p>15-17. Roofing slate are sold by the square, and a square of roofing slate is a sufficient quantity of slate to cover one hundred square feet of roof. The material for school slate as it comes out of the quarry is split into the proper thickness for school slates without regard to the size of the slabs of slate, without being sawed or dressed. The standard of measurement is 7 by 11 inches in size. A slab that cuts one slate of 7 by 11 and less than two is called one slate, and one that cuts two slates 7 by 11 and less than three is counted two slates, and so on, and in this condition is placed upon the banks of the quarry and sold by the thousand. Mantel and blackboard stock is measured as it coinés out of the quarry in the rough without being cut, dressed or sawed, and measured by the square foot an inch thick, and either sold in that condition from the bank or taken to the factory and manufactured into finished blackboards and mantel stock.</p> <p>18-20. The average'market price of roofing slate ready finished for market, on the banks of this quarry, from October, 1880, to September, 1882, was about $3.25 per square. The average market price of school slate in the rough, on the banks of this quarry, from October, 1880, to September, 1882, was $7 per 1000 of the standard measure of 7 by 11 inches. The average market price of blackboard and mantel stock in the rough on the banks of the quarry from October, 1880, to September, 1882, was 7c. per square foot an inch thick.</p> <p>21. In the condition this quarry was in from October, 1880, to September, 1882, with the uncovering all done and beds of slate uncovered, with all the machinery, appliances and tools for working the quarry, mining and making slate supplied, and the facilities for working the quarry, the cost of mining, hoisting, splitting, dressing and preparing for market of roofing slate was $2 per square; the cost of mining and splitting school slate was $8 per 1000 slates in the rough of the standard measure of 7 by 11 inches; and the cost of ’ mining and placing on the banks blackboard and mantel stock in the rough was 3c. per square foot measured an inch thick, these amounts including a fair and reasonable profit to the parties operating the quarry or the parties working the quarry by contract. In other words, these are the amounts at which contractors would have operated the quarry during this period of time and placed the different kinds of slate on the banks of the quarry, ready for market, without any expense to the owners of the quarry, and would have made a fair profit for themselves. These figures, however, do not include cost of uncovering and preparing the quarry for working or the cost of machinery, but only the cost of operating the quarry and ordinary repairs of machinery.</p> <p>22. In the condition this quarry was in from October, 1880, to September, 1882, with uncovering done, the quarry developed, with all the machinery, tools and appliances for working the quarry supplied, with all the necessary buildings erected upon the premises, with the necessary machinery for making the different kinds of slate supplied, the facilities for working the quarry, its conveniences for loading and shipping slate and its proximity to the railroad during this period of time, the value of the different kinds of slate in the quarry in place was as follows: Roofing slate $1.25 per square, school slate in the rough $4 per 1000 slates of the standard measure of 7 by 11, and mantel and blackboard stock in the rough 4c. per square foot, measured an inch think.</p> <p>28-27. Some uncovering became necessary for the proper working of the quarry at the western end thereof, during this period. This uncovering was done by H. W. Weiss under a contract, for which he was paid by Williams the sum of $437.50. It became necessary to do some repairing to the boilers and boiler-house. This repair was made by Williams, for which he paid $162.11. Williams paid taxes assessed upon the premises in question, for the time he and Fulmer were the joint OAvners thereof, amounting to $131.31. Williams received $37 rent for the two tenant houses upon said premises. This was the only rent received by Williams for any of said premises during said period of time. The said Fulmer paid taxes assessed upon said premises, amounting to $84.28.</p> <p>28. Since the time this quarry in question was first opened and,developed, it has never been leased on royalties.</p> <p>Upon the foregoing facts, the master’s conclusions of law, as shown by his report filed on November 11,1887, were as follows:</p> <p>It is unnecessary now to discuss the question whether either at common law or under the statute of 4 Anne, C. 16, § 27, in force in Pennsylvania; Roberts’s Digest, *48, one tenant in common of a slate quarry could maintain a bill in equity for an account against his co-tenant, who was in the exclusive possession of the common property, and mined, took and converted to his own use the slate from the common property. This question is put at rest by § 24, act of April 25, 1850, P. L. 573, which is as follows, to wit: “In all cases m which any coal or iron ore mines or minerals shall be held by two or more persons, as tenants in common, and coal, iron ore or other mineral has been or shall be taken from the same, by any one or more of said tenants respectively, it shall be lawful for any one of said tenants in common to apply by bill or petition in equity to the Court of Common Pleas of the county in which the lands lie, praying that an account may be decreed and taken of all coal, iron ore or other mineral taken by said tenants respectively; and the said court shall thereupon proceed upon such bill or petition agreeably to the course of a Court of Chancery, and shall have full power and authority to make all orders, appointments and decrees, interlocutory and final, that may appertain to justice and equity in the premises, and may cause to be ascertained the quantity and value of the coal, iron ore or other mineral so taken respectively by the respective parties, and the sum that may be justly and equitably due by and from and to them respectively therefor, according to the respective proportions and interests to which they may be respectively entitled in the lands.”</p> <p>In Coleman’s App., 62 Pa. 252, this act of assembly was construed by the Supreme Court of this state. It was there held that this act applied to all cases where coal, iron ore or other mineral has been or shall be taken from the common property, by one or more of the tenants in common, without regard to the proportion of the portion taken to the portion remaining in the beds. This act applies to the case in hand, and all the principles and rules of law governing this case are fully and clearly stated in the opinion of Mr. Justice Sharswood. It is true, this act does not mention slate, but it speaks of coal, iron ore or other minerals, and slate is a mineral within the meaning of the act.</p> <p>The plaintiff and the defendant were tenants in common of the property in question from October 15, 1880, to September 4, 1882, the plaintiff owning the undivided one third interest, and the defendant the undivided two thirds interest.</p> <p>The defendant was in the exclusive possession of the premises disputed, and denied the plaintiff’s interest in the same and mined large quantities of slate and sold them for his exclusive benefit. Upon what basis, then, is the value of the slate taken to be ascertained, so as to arrive at the sum that is justly and equitably due by the defendant to the plaintiff for the slate taken by him ?</p> <p>The defendant in working the quarry was not a trespasser. He had the right to take the common property, and he had no other means of taking his own just share than by taking at the same time the share of his co-tenant. The value of the slate in place is manifestly what the defendant must account for. That is, the value of the slate in place must be taken as a basis upon which to adjust the accounts between the plaintiff and the defendant: Coleman’s Appeal, supra.</p> <p>But how is the value of the slate in place to be ascertained ? The plaintiff contends that this must be done by ascertaining the market value of the slate on the bank of the quarry, and deducting therefrom the cost of mining and putting it there, with a fair and reasonable profit to the operator of the quarry; or, in other words, by deducting from the market price of the slate on the bank the cost at which contractors would mine it and put it there, without expense to the owners of the quarry; and all his evidence was directed to this point. On the other hand, the defendant contends that the value of the slate in place is the royalty that would be paid by a lessee to the owner of the quarry, based upon the usual rates of royalties paid by lessees to owners of quarries in the Slatington slate region, and all his evidence was directed to this point. In Coleman’s Appeal the former method was adopted and the reasons therefor stated.</p> <p>In order to arrive at a correct solution of this question we will have to take into consideration the actual condition of this quarry during the time the plaintiff and the defendant were the - joint owners thereof. This is found in the 11th finding of facts. It is there stated that during this period of time this was an opened and well-developed quarry, with uncovering and stripping done, beds of slate exposed and easily worked, producing large quantities of a superior quality of roofing, school, blackboard and mantel slate, and well supplied with all the buildings, machinery and appliances for mining and manufacturing roofing, school, blackboard and mantel slate, with the Lehigh Valley Railroad running past the quarry, affording facilities for loading and shipping slate. These buildings, factories, machinery, tools and appliances constituted a part of the joint property of the plaintiff and the defendant, having been erected and supplied by the defendant and H. W. Harper, the plaintiff’s predecessor in title, and whose rights he acquired by purchase, at their joint expense.</p> <p>It would seem to be clear that under these circumstances, at this quarry, in order to ascertain the respective rights of the parties and. the amount justly and equitably due from the one to the other, the value of the slate in place cannot be ascertained by ascertaining what is usually and ordinarily paid as royalty by lessees to owners of quarries in this region. 'Leases on royalties are generally made for unopened and undeveloped quarries, the lessee bearing the expense of opening and developing the quarry and supplying the machinery and running the risk of the quarry perhaps turning out entirely worthless. It must be obvious that this would not be a fair test of the value of slate in place in the quarry in question. Besides, as shown by the evidence, and as must be the case from the nature of things, quarries in this region differ greatly in value and the quality of material produced. Some produce better slate than others. Some produce roofing slate exclusively, and others roofing, school, blackboard and mantel slate. Some are more easily worked than others, and some are in closer proximity to railroads and have better shipping facilities than others, and as widely as quarries in this region differ from each other, in these respects, so widely do the royalties paid at the different quarries differ as to amounts. Here, when the plaintiff became a joint owner with the defendant, the quarry was uncovered and fully developed and all the machinery and appliances were at hand. It is true, this had been done by the defendant and Harper before the plaintiff acquired his interest therein, but the latter succeeded to the rights of Harper and paid for Har per’s interest in the quarry, with machinery, appliances, etc., in the condition it was at the time of his purchase.</p> <p>During the time in question the expense of working this quarry by the defendant, outside of the wages of the laborers, must in the nature of things have been very small. The capital invested in the development of the quarry and the machinery appliances and equipments were the joint property of the plaintiff and the defendant. The defendant, in working the quarry and placing its product upon the banks of the quarry ready for market, assumed no risk. He had no capital employed in any hazardous enterprise. The only risk of loss he assumed in operating the quarry was that of bad debts in the sale of its product, but with that the plaintiff had nothing to do. If the defendant chose to sell the plaintiff’s share of the product of the quarry and thereby lost, that was a risk he voluntarily assumed. He was not bound to do so.</p> <p>In the opinion of the master the fair and proper way of ascertaining the value of the slate in place in this quarry taken by the defendant, during the time he and the plaintiff were the joint owners thereof, talcing all the circumstances into consideration, in order to ascertain the amount justly and equitably due therefor from the one to the other, is by ascertaining the market price of the slate on the bank and deducting therefrom the cost of mining and putting it there, with a margin for a fair and reasonable profit to the operator of the quarry; or, in other words, deducting from the market price of the slate on the bank the amount for which contractors would operate the quarry and put the slate on the bank for the owner, ready for market, without any expense to the latter. This method of ascertaining the value of the slate in place, under the circumstances of this case, is absolutely fair to both parties and does exact justice between them, and accords with the principle enunciated in Coleman’s Appeal.</p> <p>The master has adopted this method for ascertaining the value of the slate in place taken by the defendant during the time he and plaintiff were the joint owners of the quarry, and has fixed the value of roofing slate at $1.25 per square; school slate at $4 per 1,000 in the rough of the standard measure of 7 by 11 inches, and blackboard and mantel slate at 4c. per square foot an inch thick.</p> <p>It will be evident that by adopting this method of fixing the value of the slate in place taken by the defendant as the basis of stating the account between him and the plaintiff, the defendant will be entitled to a credit for the uncovering he did during this time, to wit, $427.50. It is true, not much slate was taken out of that portion of the quarry during this time where this uncovering was done, yet it was for the benefit of the quarry, and inured to the joint benefit of the owners thereof, and in justice this expense should be credited to the defendant in stating the account so as to make each pay his proper proportion thereof. This will be done by the master. The same is true as to the expense of repairing the boilers and boiler house. This is also a proper item of credit to which the defendant is entitled, and this will also be allowed in the account. The taxes paid on the premises in question by the plaintiff and the defendant, respectively, will also have to be credited to them respectively in the accounts between them, as they were jointly liable for these taxes in proportion to their respective interests in the property.</p> <p>********</p> <p>—-After passing upon other questions not material to this report, the master stated an account, wherein he charged the defendant with “the value of the slate in place taken by him” during the time the parties were joint owners of the property, the roofing slate being charged at $1.25 per square; school slates at $4 per 1000; mantel stock at 4 cts. per square foot, and charging also taxes paid by plaintiff, and rent received by defendant, making a total charge of $10,941.98. The defend ant was then credited for the cash paid H. W. Weiss, excavating; repairing boiler, and for taxes paid by defendant, aggregating $730.92; making a balance of $10,211.06, of which the one third, $3,403.68, with interest from September 4,1882, $1,055.14, amounting to $4,458.82, the master awarded to the plaintiff, and reported a decree accordingly.</p> <p>To this report of the master, both the plaintiff and defendant filed exceptions. Certain of the defendant’s exceptions alleged that the master erred:</p> <p>10. In not giving proper consideration and application to the testimony as to the value of the slate in the quarry, in the shape of slate-leave or royalty.</p> <p>17. In holding that the measure of the defendant’s liability was the value of the product on the surface, less the cost of taking it from the quarry.</p> <p>18. In not holding that the plaintiff’s measure of compensation must be the value of the product in the ground as determined by the ruling market rates of royalties prevailing in that neighborhood.</p> <p>The exceptions filed to the report being argued, on March 5, 1888, the court, Albright, P. J., filed the following opinion:</p> <p>From October 15, 1880, to September, 1882, plaintiff and defendant owned a slate quarry as tenants in common; plaintiff owned an undivided one third. During this period the defendant, who had been taking slate out of the quarry before plaintiff acquired an interest, continued to work it. What he took out when manufactured or prepared for manufacture amounted to 4,149.75 squares of roofing slate, 1,147,750 school slates and 26,063 square feet (of the thickness of about one inch) of materials for mantels. In this proceeding the plaintiff seeks to recover his share of the value of said slate. The chief controversy is as to how the value is to be ascertained.</p> <p>The act of April 25, 1850, P. L. 573, and the cases of Coleman’s App., 62 Pa. 252, and Neel’s App., 3 Penny. 66, leave no doubt as to the rule. The one taking the valuable product out of the ground shall pay his co-tenant who took none, the latter’s share of the value of the mineral in place, the value of the ore leave. No element of damages for injury shall enter into the calculation. The tenant who takes the product out of the mine is taking his own; at the same time, he necessarily removes his co-tenant’s share. The value of that share he shall pay. In Coleman’s Appeal, Justice Shakswood said that he is to be treated even more favorably than one who mistaking his line had cut logs on an adjoining tract, because there the property was taken wrongfully and against the owner’s will. In a case of that kind, Herdic v. Young, 55 Pa. 176, the owner was held to be entitled to the value of the logs in the boom, less the cost of cutting and bringing them to the boom.</p> <p>****** * *</p> <p>In this case, the plaintiff proved the value of the slate on the bank of the quarry; of the roofing slate, split and dressed, and of the school slate split of the required thickness undressed, and of the mantel and blackboard stock in the rough. Then he introduced evidence to show what it was worth to quarry and place said material there in that condition. The defendant gave evidence tending to show what the slate-leave was worth, what was a fair rental or royalty upon the several kinds produced, that is roofing, school slates, and mantel or blackboard stock. The witnesses called by both sides for said purposes were experts. The positions of opposing counsel are also made plain by a statement of the questions put to the experts called by them respectively. The questions to all were not precisely in the same words, they were substantially identical.</p> <p>Question to Wm. J. Griffith, called by the plaintiff: “Suppose this quarry to be open and uncovered, the beds of roofing slate exposed and ready to be worked, appliances at hand to hoist, and the beds of slate so formed as to be easily worked, what in your opinion would it cost per square to take out, hoist and split roofing slate ? ” “ Under the same state of facts, what would it cost to quarry, hoist and split mantel material an inch thick ? ” “ Under the same state of facts, what would it cost per 1000 for taking out, hoisting and splitting school slate on the bank when school slate are selling at $9 per 1000 in the rough?”</p> <p>Question to Dr. A. P. Steckel, called by defendant: “ Taking into consideration the condition of the quarry in the years 1880, 1881 and 1882, its state of development, the character of the improvements, machinery and fixtures about it for the quarrying of slate, what, in your judgment, between October, 1880, and August, 1882, would have been a fair royalty to be paid to its owner on roofing slate per square, school slate, in the rough, per thousand, 7 X11, and mantel and blackboard material, in the rough, per square foot, measured an inch thick, considering in your estiro ate the character of this quarry, and the beds of slate, the facilities, and lack of facilities for working, and ruling rates of royalty in that region during that period ? ”</p> <p>I have said that the witnesses referred to were experts. The fact is, that they, or nearly all of them, I mean those called by both sides, were familiar with this quarry, the Williams-Fulmer quarry.</p> <p>The learned master adopted the view of plaintiff.</p> <p>* x- x x- x- * « *</p> <p>What mode is to be adopted to reach the value of the slate in place in the quarry ? That which will give the truer result. For said act of 1850 makes it our duty to ascertain what is justly and equitably due. Both methods cannot be followed under the evidence in the case, or made available to reach a correct conclusion. The respective results differ too widely. The one makes the value of the slate in question in place more than three hundred per cent greater than the other.</p> <p>To solve this problem regard must be had to the circumstances. In what is termed in this case “ the Slatington slate region,” there are many slate quarries. They extend over miles of territory. There are various veins or beds of slate, the run and qualities of which seem to be understood. The quarrying of slate and manufacturing of articles from it is the leading industry in that section of the country. In the nature of things, men are familiar with every phase of the business, the same as men engaged in any other established business are familiar with its particulars. That this is so, can be inferred from the testimony. The value of the slate in place is, perhaps, one of the things that is best understood.</p> <p>Probably no two slate quarries are alike, or can be worked in exactly the same way and with the same results. But that is also true of all kinds of mines and quarries, yet where there are many places near each other, where the same mineral or stone is taken out, the deposit acquires a known value ; there is an approximate value which for practical purposes is the real one. Such estimate enters into the value of the land when it is bought and sold, a value of the mineral distinct from that of the land unaffected by the mineral. In such cases grants, leases of the mineral, are frequent with a stipulated price for the product taken from time to time at so much a ton, or the like. That leases of that kind of slate quarries in the Slating-ton region are common, appears from the evidence.</p> <p>From the testimony of defendant’s witnesses it appears that an estimate can be formed of the slate here in question while in place; that quarries in that region are worked under leases where the landlord is paid at a certain sum per square, or foot, or by a percentage on the market price of the manufactured product. Defendant called a number of witnesses whose testimony shows that they are well informed concerning slate quarries in that region and the Avorking of them; with what is usually paid in the neighborhood as royalty; that said witnesses were familiar with this quarry and its condition, including its equipment for working at the time in question, and the facilities for transportation. An examination of the testimonj’of Messrs. Shenton, Neff, Krum, Steckel, Kuhns, McKenna and Caskie, is convincing as to what has just been stated. It shows a knoAvledge by those witnesses of the value of slate leave, where no quarries are opened; where there are quarries and where quarries are supplied with machinery and necessary appliances, as was the case here. And in the light of that knowledge and of a knowledge of this quarrjq its equipments and facilities for transportation, as it was at the time in question, they state what they believe this slate was worth in place, what the slate-leave or royalty for it was worth at a fair estimate. That evidence gives a safer basis than the method and evidence upon which the master acted. '</p> <p>it? ifr iff % iff-ifr</p> <p>The evidence shows that the value of the slate in place fixed by the master is too high. The real value cannot be reached by taking the market value of the finished roofing slate and of the split school slate and mantel stock, and deducting what is believed, or that can be found from this evidence to have been the cost of production. We must be guided by the testimony concerning the value in the quarry, the royalty or slate-leave. Upon a consideration of the testimony of defendant’s witnesses above named, I believe that a just conclusion is that the material was worth in place the sums following: roofing slate 45 cents a square, school slate $1 a thousand, and mantel and blackboard stock 1J cents a square foot an inch thick.</p> <p>if:- ifc % % sfc -# iff &</p> <p>The credits allowed defendant for excavating and for repairing boilers, etc., must be rejected for evident reasons. It must be taken that those were expenses of working the quarry, for none of which is the plaintiff liable under the view of the case taken by the court.</p> <p>In accordance with the foregoing opinion, the court stated an account charging the defendant with the value of the roofing slate, at 45c. per square; school slates, at $1 per 1000; mantel stock at l£c. per foot; with rent received by the defendant and taxes paid by plaintiff, making in all $3,540. The defendant was then credited with the amount of taxes paid by himself, which left a balance of $3,409.54, one third of which, to wit, $1,136.51, with interest, to wit, $375.21, amounting to $1,511.72, was decreed to be paid by the defendant to the plaintiff. Thereupon, the plaintiff took this appeal specifying, in substance, that the court erred in sustaining the defendant’s exceptions to the master’s report, and in entering the foregoing decree.</p>

<p>No. 186 July Term 1887, Sup. Ct.; court below, No. 51 October Term 1886, C. P.</p> <p>On September 22, 1886, a summons issued in an action by Mary A. Alvord against the Philadelphia, Wilmington & Baltimore Railroad Company, to recover damages for jiersonal injuries received, charged to the alleged negligence of the defendant company. Plea, not guilty.</p> <p>At the trial on February 28, 1887, the only testimony as to the cause of the accident was that of the plaintiff herself and that of John Keely, one of defendant’s brakemen, and sufficiently appears in the opinion of the Supreme Court.</p> <p>At the close of the testimony, the court, Futhey, P. J., charged the jury in part as follows:</p> <p>I have now shown you the distinction between the cases when negligence will be presumed and when it must be proved. And I say to you that this accident, having happened in ascending the steps of the car from the platform of a station, it is the- duty of the plaintiff to show that it happened through the negligence of the company. You will see, therefore, that the question which first presents itself here is as to how this accident happened, whether the railroad company was in fault, whether there was negligence upon their part which caused this accident. If it appears to the satisfaction of the jury, bearing in mind that the burden of proving it is upon the plaintiff, that there was such negligence on the part of the company, the plaintiff is entitled to recover. But if the jury are not satisfied upon this point, and find that the accident was not caused by the conduct of the employee of the railroad, the plaintiff has no case. It does not follow that because a person is injured somebody must pay for it. There are accidents happening every day to persons, where there is no one who can be asked to respond in damages, and where the person injured must suffer the effects of such injury, without recourse to others.</p> <p>[You will therefore consider the question, which lies at the outset of the case, as to how this accident happened. Miss Alvord says that she was passing from the stairs which led down to the platform; that she walked across this platform to the car which was the rear car in the train, and was about stepping on to the steps of the car; that the brakeman was there, and that just at that instant of time when she was aKout getting a foothold upon the steps of the car, he brushed past her, hastily preceding her up the steps of the car, and that he pushed or jostled her so that she lost her foothold, her foot slipped or did not obtain a firm footing upon the step, and that she thus slipped down between the car and the platform and was injured as she describes; and she attributes this to the conduct of the brakeman in thus passing between her and the step, so that it prevented her from obtaining the foothold which she would otherwise have obtained.] 1 She says in substance :</p> <p>* * * -» * * * *</p> <p>The point to which I wish to call your attention in her testimony is as to the manner in which she says the accident occurred : that the brakeman’s passing rapidly in between her and the step, caused her to lose her foothold, wherebj1- the accident resulted. [Now, if the brakeman did thus interfere with her getting her foothold upon the step, and, if in consequence of his passing in in this way she failed to get a foothold which she would otherwise have obtained, and if the accident resulted from his thus passing in before her, then that would be negligence upon the part of the employee of the railroad for which the railroad would be responsible ; and the plaintiff would be entitled to recover.] 58</p> <p>On the other hand, the brakeman is called, and he gives you his version of the matter. He says:</p> <p>* * * ■***-* *</p> <p>You will observe that the brakeman gives a different account of how the accident happened from that given by the plaintiff. The brakeman says that he was standing on the side of the car step, which would be east of the step, as the train was heading westward, to the right of the plaintiff as she was ascending the steps; that he was facing her as she came towards the steps of the car, and that in passing up the steps, in some way her foot slipped, or she did not get a foothold, or made a misstep ; and that he then passed up the step of the other car, on the left hand side of the car, to assist her. And he alleges that the accident happened in consequence of that misstep, and without any action whatever on his part. Now, if that is the way this accident happened, the railroad company would not be at fault. If she came down and took hold of the rail in the usual way to enter the car, and then went to step on to the steps, and the brakeman did nothing to impede her passage, of course the railroad company would not be at fault in the matter. If that is the way this accident happened, then the plaintiff cannot recover. However much we may regret the accident, however much the plaintiff may have suffered, if the fault was not the fault of the railroad company, it is one of those inevitable accidents which will occur and do occur where there is no responsibility.</p> <p>This is the question of fact which is for your determination in this case.</p> <p>* * * * * * * *-</p> <p>The plaintiff requests the court to charge:</p> <p>4. It is the duty of the railroad company to allow the plaintiff access to its train free from any danger of its being suddenly started before she was safely upon it; and if the jury find that by reason of the conduct of the brakeman she was pushed or jostled, and thus prevented from getting a sure footing, and that thereby the injury happened, she is entitled to recover.</p> <p>Answer: If the jury find the facts stated in this point, that by reason of the conduct of the brakeman she was pushed or jostled, and prevented from getting a sure foothold, and thereby the injury happened, she is entitled to recover.8</p> <p>The defendant requests the court to charge:</p> <p>1. There is no such evidence of negligence upon the part of the defendant in this case as ought reasonably to satisfy the jury thereof; and upon the whole of the testimony in the case, the verdict of the jury should be for the defendant.</p> <p>Answer: Refused.4</p> <p>2. There is no evidence in this ease that would justify the jury in finding that the defendant was guilty of negligence, and their verdict must be for the defendant.</p> <p>Answer: Refused.5</p> <p>8. The verdict of the jury in this case must be for the defendant.</p> <p>Answer: Refused.6</p> <p>The jury returned a verdict in favor of the plaintiff for $10,000. A rule for a new trial having been discharged, judgment was entered, when the defendant company took this writ, assigning as error:</p> <p>1, 2. The parts of the charge embraced in [ ] 1 8</p> <p>3. The answer to plaintiff’s point.3</p> <p>4-6. The answer to defendant’s points.4 40 6</p>

No. 122 January Term 1889, Sup. Ct.; court below, No. 76 January Term 1888, C. P. On August 4, 1887, Mr. Hugh R. Fulton brought assumpsit against the county of Lancaster to No. 98 August Term 1887 of the Court of Common Pleas of said county, and on the same day filed the following statement of claim : “ The plaintiff’s demand in the above case is founded upon a contract entered into by and between the plaintiff and defendant, by which the plaintiff agreed to collect from the…

No. 80 January Term 1888, Sup. Ct.; court below, No. 290 May Term 1884, C. P. On April 12, 1884, Sarali Huber, in her own right, and Maria Edna Huber, a minor, by her mother and next friend, said Sarah Huber, brought case against the Philadelphia & Reading Railroad Company, to recover damages for injuries resulting in the death of Frederick.

No. 388 January Term 1888, Sup. Ct.; court below, No 438 October Term 1884, C. P. On August 11, 1884, Isaac X. Grier and Mary P. Davis, widow and sole devisee of W. H. -Davis, deceased, brought ejectment against the Pennsylvania Coal -Company, to recover a tract of land situate ,m the boroughs of Dunmore, Dixon and Olyphant. Issue.

<p>No. 191 July Term-1888, Sup. Ct.; court below, No. 68 February Term 1886, C. P.</p> <p>On February 11, 1886, William H. Davis brought trespass against Maria Davis, Joshua Davis and J. W. Weidenhamer, and on February 5, 1887, filed a declaration averring that on July 22,1884, the defendants with force and arms took,.carried away and converted certain goods and chattels of the plaintiff, and damage therefrom. The defendants on March 26, 1887, pleaded not guilty, and on September 21, 1887, filed a special plea averring that the goods and chattels mentioned in the declaration were lawfully seized and sold by J. W. Weidenhamer, as bailiff of Maria Davis, by virtue of a distress warrant for the recovery of arrears of dower interest due to her as widow of David Davis, deceased, reserved and charged upon certain lands upon which said goods and chattels were at the time of their seizure.</p> <p>Issue being joined, the case was called for trial on December 21, 1887, when the following facts were made to appear:</p> <p>On July 22, 1884, William H. Davis was in arrears in the payment of dower interest charged in favor of Maria Davis upon land in his occupancy, to the amount of 14,546.44, and on that day, which was Tuesday, Mrs. Davis executed and delivered to J. W. Weidenhamer, constable, a warrant of distress authorizing and requiring him to distrain the goods and chattels of William H. Davis, being upon said land, to enforce payment of this sum. Thereupon, Weidenhamer went upon the land mentioned in the distress warrant, and in pursuance of its directions distrained the goods and chattels of William H. Davis thereon found, serving upon him a notice of the distress and a schedule of the goods levied upon. On Monday, July 28, 1884, the goods were appraised by appraisers duly chosen and qualified, and on August 5, 1884, after due advertisement, they were sold by the bailiff at public vendue, the proceeds of the sale amounting to $3,380. Testimony was given for the plaintiff, tending to show that Joshua Davis was present participating in the acts of Weidenhainer in connection with the distress.</p> <p>At the conclusion of the evidence, the court, Sittser, P. J., charged the jury as follows:</p> <p>This is an action brought b}*- William H. Davis against Maria Davis, Joshua Davis, and J. W. Weidenhamer, in which the plaintiff seeks to recover damages for injuries which he alleges have been inflicted upon him by reason of the defendants’ going upon his place in Limestone township in this county and taking away from him and disposing of a large amount of personal property.</p> <p>There is no dispute in the evidence in the case but that the defendants, or some of them, came there and seized various articles of personal property and sold or disposed of them, and deprived the plaintiff of the possession and use of them. The defendants undertake to justify themselves in doing this, by reason of what is called a landlord’s warrant. They claim that the plaintiff, William H. Davis, was indebted to Maria Davis for a considerable sum of money which, as they allege, was due to her from an interest under the intestate laws in the farm upon which William resided and which he claimed to own, and that they had a right to proceed by distress to collect this money.</p> <p>We are of the opinion that they had a right to put what is called a landlord’s warrant in the hands of a constable and to proceed to distrain the personal property of Wiliam H. Davis, found upon his premises, for the payment of this sum which is due to Maria Davis. But, when they undertake to apply proceedings of this kind, it is their duty to comply with the requirements of the act of assembly regulating such proceedings; and it is claimed, on the part of the plaintiff, that they have failed to do this. It was their duty when they distrained the property, when they levied upon it, to give William H. Davis notice by a schedule of the articles which they distrained; William H. Davis then had five days from the time at which notice was given, in which to replevy this property. After the expiration of the five days, it is the duty of the constable, or of the officer distraining the property, to cause an appraisement of the property to be made; and if the officer executing this process fails to require that appraisement to be made at all, or makes it within the five days, he becomes a trespasser; has no right afterwards to sell the property; cannot justify under the proceedings.</p> <p>[It appears from the evidence in this cause that an appraisement was made. The act of assembly requires that it shall be made after the expiration of five days from the time of the levy; as the last of the five days fell on Sunday, notice of the levy having been given upon Tuesday, the five days would not be completed until after Monday following, and it was not a compliance with the law to make the appraisement on that day, the following Monday; it was one day too soon; and the defendants might as well have made the appraisement before they made the levy, or not to have made any appraisement at all, as to make it in a way or at a time not provided for in the act of assembly; and, therefore, we say to you that, in consequence of this, the proceedings were irregular and void; that the defendants cannot justify their conduct by these proceedings, and are trespassers; trespassers ab initio, or from the beginning. The plaintiff is therefore entitled to recover, and he is entitled to recover against the persons who seized and took away his property. Maria Davis signed the warrant of distress which was putin the hands of the constable. The constable executed the warrant. Some evidence has been given to the effect that Joshua Davis was there; whether he was there, aiding, abetting and assisting, so as to1 become responsible in damages for the injuries inflicted upon the plaintiff, is a question of fact for you.] 1</p> <p>& % # & # ^ %</p> <p>The counsel for the defendants have requested us to say:</p> <p>1. That, if you believe from all the evidence in the case that the amount of money realized from this sale was appropriated to the payment of a debt which William H. Davis owed to Maria Davis, bis mother, that fact could be taken into consideration by you in mitigation of damages, lessening the amount which would otherwise be recoverable.</p> <p>Answer: We do not agree with counsel for the defendants in that respect, and we say that it should not be taken into consideration in mitigation of damages. We instruct you, on the contrary, that where one person seizes the property of another, dispossesses him of it, without warrant and process of law, he who makes the unlawful seizure is not entitled to urge in mitigation of damages that he applied the proceeds of the sale of that property to the payment of a debt which the person whose goods he takes owed him, or to the extinguishment of any other assumed or existing indebtedness. The defendants in this case unlawfully, and therefore wrongfully interfered with the plaintiff’s dominion over his own property; and when any person thus interferes with a man’s dominion over his own property, he who is injured thereby has the right to recover the value of the property from the person who wrongfully deprives him of the possession of it.7</p> <p>Counsel for the plaintiff requests us to say to you:</p> <p>4. That the act of assembly, relating to the sale by distress of personal property, requires that an appraisement be made after the expiration of five days from the date of the levy; and therefore an appraisement made before the expiration of the five days is illegally anade, and reaiders the sale unlawful aaid void as well as the levy.</p> <p>Aaiswer: Affirmed.8</p> <p>5. That the act of asseanbly requires that five full days should be allowed the defendant in the distress, in which to replevy his goods; and, in the computation of the time, the day of the distress is to be excluded, and where the last or fifth day shall fall on Sunday, such day must be excluded from the coanputation.</p> <p>Answer: Affirmed.3</p> <p>6. That it is incumbeait upon the defendants in this case, acknowledging the distress and sale of the goods of the plaintiff, under a warrant issued b3r Maria Davis, to show a strict coonpliance with all the provisions of the act of assembly relating to levy and sale by distraint; but that, as the evideaice establishes the fact that the appraisement was made withiai five days of the levy, the sale that followed, made by the constable, was illegal, and the plaintiff is entitled to recover.</p> <p>Aaiswer: Affirmed.4</p> <p>7. That the levy in this case being añade on Tuesday, July-22, 1884, aaid the appraisement on Monday, July 28, 1884, there were not five full days intervening given the defendant in the distress, in which to replevy his goods ; and the appraisement was made before the expiration of the five days, which was an irregularity, which irregularity made the defendants in this cause trespassers ab initio.</p> <p>Answer: Affirmed.5</p> <p>8. That under all the evidence in the cause, the plaintiff is entitled to recover the value of the property distrained, together with lawful interest thereon from the time of the distraint.</p> <p>Answer: This last point we do not fully affirm. We say to you that the plaintiff is entitled to recover the value of the property taken from him, the value at the time it vras taken; but we do not say that he is entitled to recover interest thereon. We do say that you may take into consideration the length of time that has elapsed since the property was taken from him and he was deprived of the possession and use of it; and if, in your judgment, he ought to have his damages increased beyond the value of the property taken, by a sum equal to the interest upon that value from the time it was taken, you can give to him such increase in finding the total of damage.6</p> <p>The jury rendered a verdict in favor of the plaintiff and against all the defendants, for th|P sum of $5,524.26. Judgment having been entered thereon, the defendants took this writ, assigning for error:</p> <p>1. The portion of the charge embraced in [ ]1</p> <p>2-6. The answers to plaintiff’s points.8 t0 6</p> <p>7. The answer to defendants’ point.7</p>

<p>No. 316 January Term 1889, Sup. Gt.; court below, number and term not given.</p> <p>On September 30, 1887, Patrick Phalen, to the use of Francis A. Fales, assignee, issued a scire facias upon a mortgage executed by the Manhattan Hardware Company to Patrick Phalen dated February 21, 1887, and containing the following recital:</p> <p>“Whereas, at a duly convened meeting of the board of directors of the said Manhattan Hardware Company, held at their office in the city of Reading, on the twenty-first day of February, 1887, the following preamble and resolution were unanimously adopted:</p> <p>“ Whereas, The stockholders of this company, on the fourteenth day of February, 1887, did unanimously authorize the directors and officers of this company to execute and deliver the bond of the company, secured by mortgage upon any or all of its property, to Patrick Phalen, of Troy, N. Y., in the sum of twenty-five thousand dollars, upon such terms and conditions as the directors and officers may determine, which said bond and mortgage shall secure the said Patrick Phalen for any indebtedness now due or owing him by the said company, or any liabilities assumed by him on behalf of said company, or any renewals of the said indebtedness or liabilities, or any additional indebtedness or liabilities from time to time hereafter to be created or assumed, not exceeding in the aggregate the said amount, and did thereby expressly waive any meeting or election of stockholders for all. or any of the foregoing purposes.</p> <p>“ Resolved, That the officers of this company be authorized and directed to execute and deliver the bond of this company and to secure the same by a mortgage upon all its property to Patrick Phalen of Troy, N. Y., in the sum of twenty-five thousand dollars for the purposes above set forth.</p> <p>“ And whereas, the said Manhattan Hardware Company is now indebted to tbe said Patrick Phalen in the said sum of twenty-five thousand dollars, for moneys now due and owing to the said Patrick Phalen, and for liabilities assumed by the said Patrick Phalen on behalf of the said Manhattan Hardware Company.</p> <p>“ And whereas the said Manhattan Hardware Company by its certain bond or obligation bearing even date herewith stands bound unto the said Patrick Phalen in the sum of fifty thousand dollars, conditioned for the payment of the sum of twenty-five thousand dollars in five years from the date thereof with interest at the rate of six per cent per annum, payable semiannually, as by the said bond or obligation fully appears. “Now this Indenture witnesseth,” etc.</p> <p>On October 10, 1887, James Nolan, as the receiver of the defendant company, filed the following affidavit of defence :</p> <p>“ Before me, the subscriber, a Notary Public, .... personally appeared James Nolan, being receiver of the Manhattan Plardware Company, duly appointed by the Court of Common Pleas of Berks county in equity suit No. 423, 1887, and duly authorized by an order of the Court of Common Pleas aforesaid in the equity suit aforesaid, to defend the said action, and who being duly sworn according to law doth depose and say.....</p> <p>“ The said Manhattan Hardware Company is a corporation created by letters patent issued by the Governor of the State of Pennsylvania, bearing date September 22,1885. At and prior to January 1, 1886, the said corporation owned a foundry, machine shop, and hardware manufactory situate at the corner of Ninth and Bingaman streets in the city aforesaid, and about 13 acres of land situate in the northern part of the said city. D. H. Fitzgerald, president of the said company, at or about the time aforesaid, proceeded to borrow large sums of money from divers persons, including Patrick Phalen and the firm of Church & Phalen, of which the said Patrick was a member, and to erect upon the 13 acres of land aforesaid, buildings, etc., and to remove the machinery from the property at Ninth and Bingaman streets aforesaid into the building so erected. The said moneys were so borrowed and the said buildings erected and machinery removed without any previous meeting held, resolutions passed, or action taken thereupon by the board of directors of the said company. No meeting of the stockholders of the said corporation was at any time called by resolution of the board of directors to vote for or against the borrowing of the said moneys from the said Patrick Phalen and the said firm of Church & Phalen, nor was any notice of the time, place, and object of any such meeting published once a week for 60 days prior thereto in at least one newspaper published in the city aforesaid, being the city wherein the chief office or place of business of the said corporation was and is situate, nor was any meeting of stockholders at any time held at the chief office and place of business of the said corporation or elsewhere for the purpose of taking an election of such stockholders for or against the increasing of the indebtedness which would result from such borrowing. That the moneys so borrowed are the moneys for which the said mortgage and the bond therein described were given and form the sole consideration for the same.</p> <p>“ That no meeting of the stockholders of the said corporation was at any time called by resolution of the board of directors to vote for or against the execution of the mortgage and of the bond therein described, nor was any notice of the time, place, and object of any such meeting published once a week for 60 days prior thereto in at least one newspaper published in the city aforesaid, being as aforesaid the city wherein the chief office and place of business of the said corporation was and is situate, nor was any meeting of stockholders at any time held at the chief office and place of business of the said corporation or elsewhere for the purpose of taking an election of such stockholders for or against the increasing of indebtedness which would result from the giving of the said mortgage and the bond therein mentioned.</p> <p>“ Wherefore the deponent is advised and avers that the said borrowing and the giving of the said bond and mortgage were and are void and of no effect, and did not and do not create any liability whatever on the part of the said corporation. The deponent further says that there are other creditors of the said corporation whose claims are valid, and who cannot be paid if the said bond and mortgage are permitted to be recovered upon, and that the plaintiff’s attorney is also the attorney of the said corporation, and unless, therefore, the said deponent in behalf of those having valid claims against the said corporation, and in behalf of the stockholders of the same, defends against the said writ of scire facias, judgment will be entered thereupon by default, and under execution process issued upon such judgment the real estate of the said corporation will be sold by the sheriff, thus not only disturbing the deponent’s possession and custody of the said real estate, but destroying the rights of those haying valid claims against the said corporation, all pf which is true to the best of deponent’s knowledge, information, and belief, and all of which deponent expects to be able to prove upon the trial of this cause.”</p> <p>On January 3,1888, a supplemental affidavit of defence was filed by Mr. Nolan in which he averred:</p> <p>“ That the borrowing of money from Partriok Phalen and from Church & Phalen, and the giving of the mortgage whereon this suit is brought, were an increasing of the indebtedness of the said corporation ; that no such resolution as that recited in the said mortgage was ever adopted by the board of directors, nor was the unanimous consent of the stockholders of the said corporation at any time given to the execution of the said mortgage as therein mentioned; neither did the stockholders waive a formal election for or against the said increase as recited in the said mortgage; that no action was at any time taken, either by the stockholders or the board of directors, ratifying the giving of the said mortgage; and that, if the said mortgage be adjudged valid, it will render the said corporation insolvent and destroy the interests of the stockholders, and injure those who have valid claims against the said corporation.”</p> <p>In the paper books presented, but apart from the record, it appeared that the plaintiffs in the equity proceeding, referred to in the affidavit of defence, were William Kerns, Francis A. Fales, assignee for the benefit of creditors of Patrick Phalen, Patrick Phalen and Thefessa, his wife, Joseph P. Egan and Timothy J. Hurley, stockholders of the Manhattan Hardware Company, and Samual J. Bedford, a creditor of the company.</p> <p>On January 26,1889, the court, Ebmbntkout, J., made absolute a rule for judgment for want of a sufficient affidavit of defence, and judgment was entered in favor of the plaintiff for $29,240.62. On the same day, leave was given to James Nolan, receiver of the Manhattan Hardware Company to 'purchase a writ of error from the Supreme Court. Mr. Nolan thereupon took this writ, assigning as error the order of the court entering judgment in favor of the plaintiff for want of a sufficient affidavit of defence.</p>

No. 317 January Term 1889, Sup. Ct.; court below, number and term not given. Held: resolution passed or action taken thereupon by the stockholders or the board of directors of the said company, and not more than the sum of #6,058.42 of the money so borrowed ever came into the treasury of the said corporation.

No. 376 January Term 1888, Sup. Ct.; court below, No. 17 April Term 1884, C. P. On February 27, 1884, Leah Williamson et al. caused to be issued a writ of scire facias to revive, et quare executionem non, judgment No. 227 February Term 1879, entered in their favor and against Henry Hiestand and others, in the sum of 13,500. Daniel Hiestand, named as a terre tenant in the writ, on April 18, 1884, filed an affidavit of defence.

No. 148 July Term 1888, Sup. Ct.; court below, No. 20 .February Term 1888, C. P. On December 30,1887, a case was stated and filed, wherein tbe county of Northampton was plaintiff, and tbe Trustees of Lafayette College were defendants, and showing the following facts: That “ Tbe Trustees of Lafayette College ” above named is a corporation incorporated by tbe legislature of. the state of Pennsylvania by act approved by tbe governor thereof, on March 9, 1826, P. L. 76, and the…

No. 325 January Term 1888, Sup. Ct.; court below, No. 341 March Term 1886, C. P. On February 13, 1886, a scire facias was issued sur a municipal claim filed in favor of the city of Williamsport against certain premises owned by John B. Beck.

No. 202 January Term 1889, Sup. Ct.; court below, No. 900 May Term 1883, C. P. On May 3, 1883, judgment was entered in favor of F. H. Warriner against James M. Mitchell and Austin Mitchell, upon a bond and warrant dated May 27, 1882, in the sum of $5,000, conditioned that the obligors should indemnify the obligee against the payment of any and all outstanding indebtedness of the late firm of Mitchell & Warriner, composed of James M. Mitchell and F. H. Warriner, and any and…

No. 2 January Term 1889, Sup. Ct.; court below, No. 2 February Term 1886, C. P., in Equity.

No. 222 January Term 1889, Sup. Ct.; court below, No. 299 February Term 1887, C. P. On January IE, 1887, there was filed a petition in the name of Mr. Lewis C. Cassidy, attorney general, averring that by due proceedings in the Court of Quarter Sessions of Bradford county, a bridge had been laid out over the Susquehanna river between the townships of Wyalusing and Terry, in said county, and the same had been duly entered of record as a county bridge; that Milton 0.

No. 237 January Term 1889, Sup. Ct.; court below, No» 182 January Term 1886, C. P. On December 12,1886, the Mutual Saving Loan and Building Association of Clinton county, Pennsylvania, brought debt against the Building and Loan Association of Lock Haven, Pa., and on October 12, 1886, filed a narr declaring upon a written undertaking of the defendant to pay to the plaintiff the amount of a certain mortgage, and to indemnify John S. Furst, Robert H. Furst and Luther C. Furst…

No. 151 July Term 1888, Sup. Ct.; court below, No. 211 September Term 1886, C. P. No. 1. On October 5, 1886, Thomas Hughes brought case against Robert L. Brownfield and H. P. Lummis, trading as Brownfield & Co., to recover damages for personal injuries caused by the alleged negligence of the defendants. . Subsequently, the name of H. P. Lummis was stricken from the record, and the cause proceeded against R. L. Brownfield alone, who pleaded not guilty.

No. 74 January Term 1889, Sup. Ct.; court below, No. 464 June Term 1888, C. P. No. 1. On March 31,1888, Edward T. Bradford, a minor, by James W. Bradford, his father and next friend, brought statutory trespass against Justus C. Strawbridge and Isaac H. Clothier, trading as Strawbridge & Clothier, to recover damages for personal injuries caused by tbe alleged negligence of tbe defendants. Issue.

No. 178 January Term 1889, Sup. Ct.; court below, No. 488 March Term 1888, C. P. No. 3. On May 5,1888, to the number and term of the court below, W. Bngbee Smith brought assumpsit against Thomas Gamón, and on June 4, 1888, recovered in said action a judgment against the defendant for $798.45.

No. 191 January Term 1889, Sup. Ct.; court below, No. 9 December Term 1887, Q. S. On December 14, 1887, John C. Lucas presented his petition to the Court of Quarter Sessions for the appointment of viewers to assess damages for injuries done to his property at the corner of Chestnut and Juniper streets, by the widening of Chestnut street. A master and a jury of six viewers were appointed under § 7, act of May 6, 1887, P. L. 87.

No. 227 January Term 1889, Sup. Ct.; court below, No. 564 March Term 1887, C. P. No. 1. On April 6, 1887, Adam Forepaugh brought case against the Delaware, Lackawanna & Western Railroad Company to recover damages for injuries to certain personal property through negligence, while being transported over a line of railroad operated by defendant company. The plea was, not guilty.

No. 233 January Term 1889, Sup. Ct.; court below, No. 51Ó December Term 1886, C. P. No. 4. Held: specifying a number of persons of whom he had inquired their asking prices, all of whose properties were located at a considerable distance from the Stocker property, varying from one to two miles; that he had visited the Stocker farm for the purpose of ascertaining its value in May or June, 1887; that he looked over the property…

<p>No. 240 January Term 1889, Sup. Ct.; court below, No. 70 June Term 1887, C. P. No. 2.</p> <p>On May 5, 1887, Lawrence Johnson, R. W. Johnson and Antonia Sans, trading as Lawrence Johnson & Co., brought assumpsit against Robert L. Brownfield and H. P. Lummis, trading as Brownfield & Co. The statement charged that the plaintiffs had purchased for the defendants 400 hectolitres of brazil-nuts on the order of defendants; that defendants refused to accept them when delivery was tendered, and that plaintiffs were obliged to sell the nuts at a less price than they had paid for them, thereby sustaining damage. The defendants pleaded non-assumpsit.</p> <p>At the trial on October 17, 1888, it was made to„appear that on December 2, 1886, the defendants gave an order to the plaintiffs to purchase for their account, in Para, Brazil, 400 hectolitres (about 1200 bushels), brazil-nuts, best quality, to be paid for on arrival, for a commission of five per centum, including buyer’s brokerage in Brazil, the plaintiffs’ correspondent to cable at time of shipment the price paid for the nuts, which were to be shipped in bulk. This order the plaintiffs transmitted to La Roque, Da Costa & Co., of Para, for execution, dividing commissions with them, and on February 9, 1887, the plaintiffs advised the defendants that by cable received on that date from Brazil their order of December 2d for 400 hectolitres brazil-nuts had been purchased and shipped per steamship Portuense and that the nuts cost to sell about eight cents per pound.</p> <p>The Portuense arrived in New York on March 3, 1887, and the next day the plaintiffs sent defendants an invoice for 312 hectolitres, at the price of 15,150 reis per hectolitre, and 88 hectolitres, at 14,000 reis per hectolitre, and an account in which the defendants were charged for customs duties, freight, insurance, brokerage, and all other expenses, from the purchase in Para until the arrival in New York. This invoice and account were accompanied by a delivery order from the plaintiffs on their storekeeper in Brooklyn, directing him to deliver 400 hectolitres brazil-nuts, in separate hold, to the defendants.</p> <p>One of the defendants, with the delivery order in his possession, went to New York to receive the nuts and went on board the vessel, where he asked the officer in charge to show him the consignment of nuts. The officer exhibited a plan of the vessel showing the location in the hold of various consignments of nuts to different parties, but there was no consignment to the defendants. The defendant partner then called upon the plaintiffs’ store-keeper, who tendered delivery of 400 hectolitres of nuts out of 582 hectolitres, which had been consigned in a separate hold to the plaintiffs. The defendants refused to accept the delivery. The plaintiffs then tendered to the defendants the 582 hectolitres, or 400 hectolitres, at their option, at the invoiced prices. The defendants declined to accept either tender. The plaintiffs afterwards tendered 400 hectolitres at the average price, which was also declined. The plaintiffs subsequently separated 400 hectolitres from, the lot, notified the defendants of the weight and the cost of weighing, but the defendants refused absolutely to accept any of the nuts tendered.</p> <p>The nuts consigned in the separate hold to the plaintiffs had been bought at auction in Brazil in two different lots. The first lot contained 312 hectolitres. The second contained 270 hectolitres, and was bought to cover the order, because the purchaser was obliged to take a boat load. The two lots were of uniform quality and had been shipped together to the plaintiffs, who had paid their correspondent for them. Importers at New Nork testified that these nuts when of the same quality usually arrived in bulk, and that each party entitled had the quantity due to him weighed out of the common lot. On the refusal of the defendants to accept delivery, the plaintiffs sold the nuts at private sale at 4^ cents per pound, and in this action sought to recover the loss.</p> <p>At the close of the testimony, the court, Mitchell, J., charged the jury, in part as follows:</p> <p>This is an action by the plaintiffs, L. Johnson & Co., to recover from the defendants, R. L. Brownfield & Co'., for money which the plaintiffs claim to have expended on the order of the defendants.</p> <p>You will recollect R. L. Brownfield & Co., the defendants, gave the plaintiffs an order to transmit to Brazil, for the purchase of 400 hectolitres of these brazil-nuts. By giving such an oi;der the defendants made the plaintiffs their agents to appoint an agent in Brazil to make this purchase, and the plaintiffs were bound on the one hand to carry out that order as nearly as possible in the way that it had been given, and on the other hand they are entitled to the money which they have in good faith expended in the performance of that duty.</p> <p>In point of fact there were sent to New York by the ship which arrived, I think it was some time in February, 1887, 582 hectolitres of these brazil-nuts consigned to the plaintiffs. The plaintiffs say that they were bought at auction. One of the witnesses said yesterday these nuts are brought down the river in boats, and they are sold at auction in boat loads, and in order to buy 400 hectolitres they had to buy 582. In other words, they bought a first lot of 312 hectolitres, and then in order to make up the 400 they had to buy a second lot of 270. Ordinarily a tender of 582 measures of any kind, bushels or anything else, is not a good tender for 400. As counsel have already said to you, when a general order is given of this kind, it is not to be expected there will be an absolute, literal compliance with it. [If there had been 390 or 410 hectolitres, according to the ordinary dealings of men that would have been a fair compliance, but ordinarily a tender of 582 is not a good tender for 400, the discrepancy is too large. But the plaintiffs claim in this case they were obliged, in order to get the 400 to buy the 582, and when they were sent to New York, the plaintiffs gave the defendants their choice either to take the whole lot of them, or to take 400 hectolitres out of this lot of 582 which had been sent. So far as a tender of the proper amount is concerned, that would be a good tender; that is to say, although there were 582 there, yet the plaintiffs did not, in fact, say to the defendants, you must take the 582; they simply said, “We have got 582, which we had to buy in order to get 400; you can take the 400 you ordered, or you can take the whole 582 if you want them.” So far I see no reason to complain of the action of the plaintiffs in that behalf.] 1</p> <p>That brings us to another point, which is perhaps the most disputed point in the case, and that is the mode of shipping and delivering. I need hardly say to you, as a general rule a man is entitled to the exact thing that he buys. If you buy a horse or a chair or anything of that kind, you are entitled to the exact thing. It will not do for the seller to say, “ Here is another that is just the same,” or, “just as good.” That may be a difference of opinion, or it may be a matter of fancy. You are entitled to the exact thing which you buy. That is the ordinary rule in the case of purchases and sales, but there are some things that are not dealt in, in the ordinary course of business, in that way; they are not dealt in as single or individual things, but as a mass. Perhaps the strongest illustration I could think of at present is the case of money. When you deposit money in a bank, if you put one hundred dollars in, you never expect to get that particular one hundred dollars back again. You get some other hundred dollars, or get it in smaller amounts, as you please; because on tbe understanding of business people one dollar is as good as another dollar, and the money goes to the bank and is dealt with as a mass. So there are other things. The papers have been recently filled, as you have all no doubt noticed, about dealing in what is called the wheat pit in Chicago, where wheat which is put into elevators there is sold by the millions of bushels and no particular grains of wheat are supposed to pass by contracts of that kind, but it is so much wheat of a certain quality. Sometimes it has other peculiarities, spring wheat or fall wheat, or red wheat, or other particular descriptions; but it is dealt with not as individual articles, but in bulk. [The question for you to consider is, whether the course of business that has been shown to you as to the shipping of brazil-nuts in the course of trade between Para, Brazil, and the city of New York, which is the main port of entry for them, is to ship them in bulk, and whether the plaintiffs were authorized, therefore, when they shipped these things through their agents in Para to ship them in that way.] 0</p> <p>If you will recollect, the correspondence indicates they were to be shipped in bulk so far as they were not to be put in separate bags. In the original order, in the beginning of the correspondence, the defendants said they wanted so many bags, and they were informed by the plaintiffs that brazil-nuts were not sold in Brazil by the bag, but sold in bulk and estimated by the hectolitre, and one of the letters which was read to you by the counsel, in summing up here, shows that the defendants were notified that the goods would arrive in bulk in New York and they would have to furnish their own bags. Therefore, so far as the mere shipping of these in bulk is concerned, there is no cause of complaint, but the defendants do complain that the special lot which they ordered of 400 were not kept separate and apart. [As I have already said, if it had been specified articles which they had bought, they were entitled to have them kept separate and entitled to the very thing which they bought, but if it is the course of trade, established to your satisfaction by the testimony read to you, that these things are dealt with in bulk and that all that is required is that there shall be so many bushels or so many hectolitres delivered of the same substantial quality out of the larger mass, then the plaintiffs were entitled to do as they did,] 3 to say, “ Here are your 400 hectolitres. It is true they are in a mass of 582, but they are substantially the same thing, and you can have your 400, or if you desire you can take the whole 582.”</p> <p>[The defendants were not bound of course to take their goods if they had been mixed with an inferior or different class of goods, because that would be a mixing which would be to. the prejudice of the defendants. If they bought and paid a high price for any specially good article, they were entitled to have that article. But if the mixture was a mere mixture with other goods of the same quality, and after the 400 were measured out they were just as good and the same as if they had been originally measured out in Brazil and sent here separately, then the plaintiffs have done all they were required to do.] 4</p> <p>That leaves me to consider the question <j>f price. You will recollect the instructions of the plaintiffs to their agents at Para were to buy about 400 hectolitres on account of the defendants. They were bound as agents to buy in good faith at the lowest price that they could buy, but on the other hand they were entitled to give whatever was requisite in order to make this purchase, and they have said, in point of fact, they were able only to buy the 812, the first lot which they bought, and afterwards they made up their purchase of 400 by buying this other lot of 270. [Whether they are entitled to bill that first lot of 312 at the highest price, of course depends upon whether in good faith they did buy those 312 hectolitres for the defendants. If they did, it is no objection and they ought not to be charged with it because afterwards they were able to buy a lot more or less large at a smaller price.] 5</p> <p>Mr. Johnson: The claim is made out on the basis of the average.</p> <p>By the court: As I understand, the plaintiffs have now made their claim and are willing to make it on the average price of the whole. I will illustrate the rule. As you probably have all been at auction one time or the other, you will remember, if it so happens there are two articles of the same kind on the catalogue, there is a good deal of a chance whether you get the first one that is put up cheaper or the second one. The only articles I ever buy myself at auction are books, and I find it hard to tell, where there are two books of the same kind on the catalogue, whether you can get the first one cheaper, or whether by taking your chances to get the second one cheaper you do not find some other man may have the same idea and you have to pay more for the second than the first. That is ■one of the chances in the auction business. [That is what I understand the plaintiffs substantially claim took place in this instance; that they bought the 812 hectolitres for the defendants and they were able afterwards to make the second purchase at a somewhat smaller price. They are entitled to the price which they, in good faith, paid.] 6</p> <p>When these nuts arrived in New York, correspondence and negotiations at some length took place, which you have heard, between these parties. The defendants refused to receive the nuts and they were sold at the plaintiffs’ order, and the plaintiffs now claim the difference between what they realized on that sale and the price which the defendant agreed to pay, which the plaintiffs paid out to their agents in Brazil. Some comment has been made by the counsel for the defence, dwelling upon this point somewhat at length, that this was shown not to be a fair sale by the fact that an inferior quality sold within a few days in New York for a quarter of a cent higher. That is a question for you to consider upon the whole evidence, and the only bearing it has is, that this sale of course must have been a sale in good faith. Counsel in addressing you in behalf of the plaintiffs read to you the notice that the defendants got, that they had this offer to sell at four and a half cents, and giving the defendants notice, if they considered it was too cheap and wanted to take them at a higher price, they were at liberty to do so.</p> <p>[On the whole case the right of the plaintiffs to recover depends very largely on the question of good faith and of the ordinary course of business.] 7 They had acted as agents for the defendants and they were bound on the one hand to exercise good faith to buy these nuts at the lowest price they could, and to get them to New York as nearly as possible in the way they had been ordered. On the other hand they are entitled, if they have expended money in good faith in carrying out the orders of the defendants, to be reimbursed. It is for you to say how much that will be.</p> <p>The defendants request the court to charge the jury:</p> <p>1. The defendants having given the plaintiffs an order to' purchase in Brazil for his account and risk 400 hectolitres, new crop, usual merchantable good quality brazil-nuts, the order is not complied with by the purchase of 582 hectolitres.8</p> <p>2. If the jury believe from the evidence that the defendants gave the plaintiffs an order to purchase in Brazil for his account and risk 400 hectolitres, new crop, usual merchantable good quality brazil-nuts, that the plaintiffs ■ transmitted this order to Para, Brazil, for execution and it was there executed by the purchase of one lot of 312 hectolitres at one price, and the purchase of another lot of 270 hectolitres at a lower price, and these two lots were mixed and shipped together to a port of New York, that defendants were not bound to accept delivery of 400 hectolitres in New York out of these two lots.9</p> <p>3. In giving the order in this case the defendants made the plaintiffs their agents with authority to constitute an agent in Brazil for the execution of the order, and it thereupon became the duty of such agent to comply with the order by the purchase of the quantity within a reasonable margin more or less of the quality ordered.10</p> <p>4. The order given in this case contemplated its execution in Brazil, subject only to payment in accordance with the terms of the order, by the defendants, upon the receipt of the nuts.11</p> <p>5. The purchase of 582 hectolitres brazil-nuts was not a proper execution of the order to buy 400 hectolitres of brazilnuts.1?</p> <p>6. The defendants were not bound to accept 582 hectolitres on an order for 400 hectolitres.13</p> <p>7. There is no sufficient evidence in this cause from which the jury can find a custom authorizing the mixing of one man’s goods with another’s, and the delivery to each in proportion to the original shipments.14</p> <p>8. There is no sufficient evidence in this cause from which the jury can find a custom authorizing commission merchants, having orders to fill for brazil-nuts in Brazil, to execute the same by mixing the several shipments together, and on arrival in New York delivering to each person ordering the same a proportionate amount of the whole shipment.15</p> <p>9. If the jury believe from the evidence that the plaintiffs have no interest in the present suit, nor any liability to their correspondent in Para in reference to the brazil-nuts in controversy, they cannot maintain the present action.16</p> <p>10. Under the evidence in this cause the verdict must be for the defendants.17</p> <p>Answer: The points are all refused, except so far as answered in the general charge.8 *°17</p> <p>The jury returned a verdict in favor of plaintiffs for $1,627.48. 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>1-7. The portions of the charge included in [ ] 1 *° 7</p> <p>8-17. The answers to the defendants’ points. 8 *°17</p>

No. 256 January Term 1889, Sup. Ct.; court below, number and term not given.

No. 265 January Term 1889, Sup. Ct.; court below, No. 8081 December Term 1873, old D. C. On January 28, 1874, John Baizley filed a libel under the act of June 13, 1836, P. L. 617, by which, as amended on December 30, 1884, by leave of court, it was averred that the plaintiff, at the special instance and request of one Captain Holland, master and managing owner of the brig Odorilla, had furnished materials and performed work and labor in the re pairing, fitting, furnishing…

No. 370 January Term 1889, Sup. Ct.; court below, No. 355 May Term 1887, C. P. On April 16, 1887, James Hayes and Ann, his wife, brought case against the Lehigh and Wilkes-Barre Coal Company, to recover damages for the death of James F. Hayes, their minor son, which, as they alleged, had occurred through the negligence of the defendant. The plea was not guilty.

No. 156 July Term 1888, Sup. Ct.; court below, No. 184 June Term 1886, C. P. On May 22, 1886, Edward Jones brought case against the Delaware, Lackawanna and Western Railroad Company, to recover damages for the death of his wife, alleged to have been caused by the negligence of the defendant company. Issue.

No. 408 January Term 1889, Sup. Ct.; court below, No. 390 December Term 1887, C. P. On November 19, 1887, George H. Sbeble and Charles M. Hill, trading as Sbeble & Hill, brought assumpsit against Theodore Strong and a large number of others, “ copartners doing business, or late doing business, as The Pittston Knitting Company, Limited. ” The plaintiffs filed a statement of claim upon a book account and a note dated February 28, 1882, at three months, for $2,425.52, made by “…

No. 422 January Term 1889, Sup. Ct.; court below, No. 959 October Term 1888, C. P. On October 4, 1888, Henry A. Reid presented his petition, averring that he was the duly appointed assistant clerk of the Orphans’ Court of Luzerne county; that John Smoulter, Jr., was the treasurer of said county; that there was due and owing to the petitioner, as assistant clerk of said Orphans’ Court, one quarter’s salary amounting to $450, a duly attested and countersigned bill for which…

No. 229 July. Term 1888, Sup. Ct.; court below, No. 22 March Term 1883, C. P. To the number and term of the court below, Thomas L. Rafferty brought replevin against John B. Ferguson, for two lots of pine saw-logs, one containing 85,000 feet and another 160,000 feet, taken from lands known as the James Rafferty lands in Penn township. The defendant pleaded non eepit and property.

No. 7 January Term 1889, Sup. Ct.; court below, No. 57 September Term 1885, C. P. On May 22, 1885, James EL Ferguson, brought ejectment against Matthew Bloom and others to recover a parcel of land containing 19 acres and 38 perches in Ferguson township. Issue. At the trial on May 15,1888, it was shown that the plaintiff claimed title to the land in dispute as part of the John Steiner survey, while the defendant claimed title to it as part of the Abram Scott survey.

No. 15 January Term 1889, Sup. Ct.; court below, No. 181 May Term 1888, C. P. On March 6,1888, the following case stated was filed wherein Jonas Albright and John K. Beidler, executors of the will of Jacob Albright, deceased, were plaintiffs, and Peter H. Al-bright was defendant: 1.

No. 349 January Term 1889, Sup. Ct.; court below, No. 48 May Term 1887, C. P. 1 On March 14, 1887, C. H. Brown brought debt against the National Insurance Company of Allegheny, Pa., to recover on a policy of fire insurance issued on July 3, 1886, for .one year, in the sum of $500.

<p>No. 350 January Term 1889, Sup. Ct.; court below, No. 49 May Term 1887, C. P.</p> <p>On March 14, 1887, C. H. Brown brought debt against the Springfield Fire and Marine Insurance Company, on a policy of fire insurance for $1,000 issued to him by the defendant company. Issue.</p> <p>At the trial on January 24, 1889, the case presénted was as follows, to wit:</p> <p>On June 11, 1886, the plaintiff procured from the defendant a policy of fire insurance for $1,000 on his stock of merchandise, which policy contained the following clause:</p> <p>“In case of loss, the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss, under oath, stating the time, origin and circumstances of the fire; the occupancy of the building insured or containing the property insured; other insurance, if any, and copies of all policies; the whole value and ownership of the property, and the amount of loss or damage; and shall produce the certificate, under seal of a magistrate, notary public or commissioner of deeds, nearest the place of the fire, and not concerned in the loss or related to the assured, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that assured has without fraud, sustained loss on the property insured to the amount claimed by the said assured.....If required, the assured shall produce books of account and other proper vouchers, original or duplicate invoices of all property hereby insured, whether damaged or not damaged, and be examined under oath by any person appointed by the company, touching all questions by him deemed pertinent to the loss, and subscribe such examination when reduced to writing; and a refusal to answer such questions and subscribe such examination, when reduced to writing, shall cause a forfeiture of all claims under this policy. ”</p> <p>The plaintiff testified that the fire by which the insured property was destroyed occurred on September 11, 1886; that immediate notice of the loss was given, but formal proofs were not then furnished; that after the notice, Mr. Adams, the company’s adjuster, came upon the ground and instructed the plaintiff how to proceed; that as his bills of goods purchased had all been burned, he was directed by Adams to procure duplicate bills; that a number of duplicate bills were procured by him within a month after the fire and Adams was notified thereof; that on October 4,1886, Adams and himself agreed to refer certain matters in dispute to one Spear, a former clerk in plaintiff’s store; that plaintiff procured Spear’s affidavit as to the matters and submitted it to Adams, who refused to adjust plaintiff’s damages, and in November, 1886, gave to plaintiff a written notice to prepare his proofs of loss, promising to send him blanks therefor; that he waited some time for the blanks which failed to come, when he made out his proofs as well as he could, and on December 15, 1886, submitted them to the company.</p> <p>The defendant submitted testimony to meet that adduced by the plaintiff, and at the close of the case presented, inter alia, the following points:</p> <p>5. The act of assembly of June 27, 1883, P. L. 165, has fixed the limit of time as ten days from the date of the fire within which the insured may give notice of loss, and twenty days from said date within which the insured shall furnish preliminary proofs of his loss; and therefore, any furnishing of preliminary proofs after twenty days from the date of the fire is unreasonable, and the plaintiff, under the evidence in this case, cannot recover in this suit, unless such furnishing of proofs has been expressly or impliedly waived by the defendant in a lawful manner, of which there is no evidence in this case.</p> <p>Answer: This point is refused.5</p> <p>10. Under the law and the evidence in this case the plaintiff is not entitled to recover, and the verdict must be for the defendant.</p> <p>Answer: This point is refused.7</p> <p>The court, Wickham, P. J. 36th district, presiding, charged, inter alia, as follows:</p> <p>[The Springfield Insurance Company contends that the proofs of loss actually furnished came too late and are insufficient. Under all the circumstances of this case, I cannot instruct you as a matter of law that this position is correct. In the opinion of the court, the proofs having been received without objection, are sufficient, in the particulars especially complained of; and as to the alleged unreasonable delay in furnishing them, that is a matter for you to consider and decide in the light of all the evidence. No particular time is fixed in this policy for handing in the proofs of loss. The law, however, requires that it shall be done within a reasonable time. What is a reasonable time, in this case, is a matter for you to decide.] 10</p> <p>The jury rendered a verdict in favor of the plaintiff for $1,116.25. Judgment having been entered on the verdict, the defendant took this writ assigning as error, inter alia:</p> <p>5, 7. The answers to defendant’s points.5 7</p> <p>10. The portion of the charge embraced in [ ] 10</p>

No. 156 January Term 1889, Sup. Cfc.; court below, No. 19 February Term 1888, C. P. On November 18,1887, the White Sewing Machine Company brought trespass against James R. Dixon, sheriff of… Held: as contended for on behalf of the plaintiff in the trial of the case, the contract with Mrs. Shreffler would not render it, the organ, liable to be seized and taken in execution and sold to satisfy the execution creditors of W. H. Dinkle.

No. 353 January Term 1889, Sup. Ct.; court below, number and term not given. On September 18, 1884, Mrs. Abby M. Brooks brought assumpsit against the First Presbyterian Church and Congregation of Meadville, declaring on the common counts. The defendant pleaded non assumpsit.

<p>No. 5 July Term 1888, Sup. Ct.; court below, No. 49 March Term 1884, C. P.</p> <p>On December 28, 1888, the Consolidated Oil Well Packer Co., Limited, and H. H. Doubleday and others, partners in said company, filed a bill in equity against the Jarecki Manufacturing Company, praying upon the facts therein averred for discovery and an account.</p> <p>The cause being put at issue by answer and replication, it was referred to Mr. James 0. Parmlee, as examiner and master, who filed a report finding the facts following:</p> <p>1. On March 1, 1879, H. H. Doubleday, Lyman Stewart, W. L. Hardison, R. R. Armour and tbe Jare old Manufacturing Company, Limited, formed a joint stock company under the laws of Pennsylvania authorizing limited partnerships, under the name of the Consolidated Oil Well Packer Company, Limited, for the purpose of manufacturing and selling oil well packers, and licensing others to manufacture and sell the same. The interests of the original partners are now vested in the plaintiffs in this suit. The capital stock of the association was $50,000, and was paid in full by each member contributing certain letters patent owned or controlled by him, at an agreed valuation, the whole aggregating said amount.</p> <p>2. On April 5, 1879, a contract was entered into between the Consolidated Oil Well Packer Company, Limited, and the Jarecki Manufacturing Company, Limited, which was in substance a license by the former to the latter to manufacture and sell oil well packers at $40 each, out of which the licensees should first deduct $9 for cost of manufacture, and 10 per cent for expense of selling, and should then from the balance deduct the licensors’ bills or requisitions on them for expenses of litigation and advertising, and remit the balance to the licensors, less 27per cent thereof, retained for themselves.</p> <p>3. The licensors substantially complied with their undertakings in said contract, but on account of alleged violations thereof by the licensees, in due form notified them on August 18, 1880, that said license was revoked.</p> <p>4. The defendants refused to acquiesce in this revocation of the license, and still continue to manufacture and sell packers under the patents of the Consolidated Oil Well Packer Company, Limited, but have not accounted to the licensors since September 1, 1880.</p> <p>5. By the said contract the defendants were granted the exclusive right to manufacture and sell packers in the United States, except that the licensors reserved the right to annually manufacture and sell 10 packers in the state of California.</p> <p>6. Soon after this attempted revocation, the licensors began to manufacture and sell packers in the oil country, and abrogated that clause of the license which fixed the price of packers, by advertising them for sale at a lower rate without the consent of the licensees.</p> <p>7. The master finds the said contract or license to be still in force between the parties, with the exception of that clause fixing the price of packers at $40.</p> <p>Upon the foregoing findings of fact and his conclusions of law therefrom, the master recommended a decree in substance: 1. That the defendants account to the plaintiffs for oil wrell packers manufactured and sold by the defendants since September 1, 1880, on a certain basis specifically stated. 2. That both plaintiffs and defendants be required to submit all their books, papers and accounts needful to ascertain and state an account between them. 3. That the case be referred to the same or another master to state such account in accordance with the findings of the master.</p> <p>Exceptions filed to the report of the master by both the plaintiffs and defendants, being overruled by him, they were renewed on the filing of his report, and after argument thereof, the court, Bro’WN, P. J., filed the following opinion and decree :</p> <p>The views we take of the case, as presented by the evidence and the report of the master, make it unnecessary to review separately the numerous exceptions filed by the parties, but in order that our opinion and judgment of them may appear of record, we sustain the plaintiffs’ 1st, 2d and 3d exceptions, and dismiss the plaintiffs’ 4th and 5th exceptions. The defendants’ exceptions are all dismissed except such, and such parts of them, as deny the plaintiffs’ right to an account, under the facts as found by the master. The defendants’ exceptions denying such right are sustained. Our reasons for sustaining the exceptions of defendants to the extent that we do, may be summarized as follows:</p> <p>On April 5, 1879, the Consolidated Oil Well Packer Company and the defendants entered into a contract in writing by which it was agreed that said company “ fully and exclusively ” licensed the defendants to manufacture and sell oil well packers, under certain patents enumerated in the writing, and such as should be thereafter obtained or controlled by it; the defendants, in consideration thereof, agreeing to account and pay to said company upon the terms specified in the contract. The bill asks for an account. It is framed in a double aspect and asks for alternative relief, namely: If it shall be found that the contract is in force, that then the defendants should be held to account for packers sold at the contract price according to the terms agreed upon; if it shall be found that the contract is not in force, and that the defendants are partners with the Consolidated Oil Well Packer Company, that then they be held to account as such partners.</p> <p>The master finds that the contract or license, as it is sometimes called, is “ still in full force between the parties, with the exception of that clause fixing the price of packers at $40.” We have then to consider only the liability of the defendants to account under the contract, the pleadings, the evidence, and the findings of the master relating thereto.</p> <p>By the 13th paragraph of the contract it is provided that upon failure of defendants to render the accounts and make the payments as agreed, the company (plaintiffs) may terminate the license by giving a written notice to the defendants that unless the accounts are rendered and payments made within thirty days the license shall be declared void. Under this clause of the agreement, and averring non-compliance therewith, the plaintiffs on July 17, 1880, did serve such notice, and on the expiration of the thirty days, to wit: on August 18, 1880, the plaintiffs, again asserting such non-compliance, notified defendants that the license given in the contract of April 5, 1879, “ is hereby terminated and declared void.” It does not appear by the findings of the master whether the defendants were or were not guilty of the defaults, which under the contract justified the plaintiffs in terminating the license. ‘From the fact, however, that he finds the contract still in force, we think we may infer that there was no such default. On October 16, 1880, the defendants notified the plaintiffs that they did not “ consider the said agreement as terminated, but as still in full force and effect,” and assert violations of the agreement by the plaintiffs, and announce a purpose to hold them responsible for damages.</p> <p>We concur with the master when he says, in his very able and careful report, that had the defendants consented to the termination of the contract, they would not be liable to a decree for an account, because, as he finds, there has been a full account to the time when the contract would have been terminated. But we do not think that acquiescence in the plaintiffs’ attempted termination of the contract was necessary to exempt defendants from liability to account in this proceeding. The defendants could not have so acquiesced, without impliedly admitting what they were careful to deny, namely, default in respect to the matters on which the plaintiffs based the right to declare the contract void.</p> <p>Under the finding that the contract of April 5, 1879, is in full force, the plaintiffs’ right to an account must be determined by the terms of that contract. By its terms, and in consideration of the stipulations of the defendants, the plaintiffs bound themselves to confer on defendants the full and exclusive right to manufacture and sell oil well packers under patents then alleged to be owned by the plaintiffs, and such as should thereafter be obtained or controlled by them. With this obligation resting on the plaintiffs, on August 18, 1880, as before mentioned, they declared the contract terminated and void, and soon after, as the master specifically finds, they commenced to manufacture and sell oil well packers in the oil country, and without the consent of the defendants abrogated that clause of the license which fixed the prices of packers, by advertising them for sale at a lower rate than the agreed price.</p> <p>On October 27, 1880, in a letter to defendants the plaintiffs say “In your letter of the 22d you also object to incurring more expense in bringing suits &e. Will you be kind enough to inform us by what right or authority you object', seeing that your contract was cancelled in accordance with its own provision in August last.”</p> <p>The plaintiffs went further and published to the world that the contract with defendants had been annulled, and by publication in the Bradford Era of October 28,1880, say: “ Our license to the Jarecki Manufacturing Company, Limited, was cancelled in August, 1880. All packers now made or sold by them are unauthorized and illegal, and parties purchasing from them after this date run a great risk in doing so.”</p> <p>The main inducement for defendants to enter into the contract was a monopoly of the manufacture and sale of the packers covered by these patents owned and controlled by the plaintiffs. It appears to us that the plaintiffs, by engaging in the manufacture and sale of packers, pressing them upon the market at an under price, and publishing to the trade that those made and sold by defendants were unauthorized and illegal, have precluded themselves from invoking the aid of a court of equity to enforce the contract against the defendants.</p> <p>We regard this as in substance a bill for the specific enforcement of a contract, in a case where the consideration is entire, and where by the express findings of the master, clearly justified by the evidence, the plaintiffs have failed to perform their part of the agreement, by acts defeating the advantages and profits for which the defendants stipulated. We understand that it is an elementary rule in equity that specific performance is of grace and not of right, and if there be anything inequitable in it, the court will withhold its assistance, and leave the parties to their legal remedies on their agreement.</p> <p>The only remaining question is whether the answer of the defendant raises the defence indicated? In subdivision “a” of the 19th paragraph of the answer, it is averred that the plaintiffs utterly failed to maintain for defendants a monopoly of the exclusive right to the manufacture, sale and use of oil well packers, as they covenanted to do by the agreement. This, we think, is sufficient to let in the evidence of such conduct and acts of the plaintiffs as defeated the monopoly for which it had contracted.</p> <p>For the reasons stated, we sustain the 30th exception to the master’s report filed by defendant, namely: “ The master erred in not dismissing the bill in this case at the cost of the plaintiffs.”</p> <p>And now, September 26, 1887, this cause came on to be heard upon exceptions to the report of the master, and having been fully argued by counsel, it is ordered, adjudged and decreed that the bill be dismissed at the cost of the plaintiffs, and without prejudice to the plaintiffs to maintain their actions at law upon the agreement or otherwise.</p> <p>.Thereupon the plaintiff company took this appeal, assigning as error, inter alia, the decree dismissing the bill, etc.</p>

No 19 July Term 1889, Sup. Ct., court below, No. T March Term 1888, O. C. On March 5, 1888, the first and final account of J. A. Day,… Held: “ Where the contract of insurance is made with the assured, ‘ his executors, administrators and assigns,’ the right of action upon the policy at death of the assured vests in his personal representative, but the insurance being' on a building, which is real estate, the interest in the property insured belongs to the heirs at law.

No. 301 January Term 1889, Sup. Ct.; court below, No. 235 February Term 1882, G. P. On January 18, 1882, an action in case was brought by Heman Janes against L. Emery, Jr. Tbe defendant pleaded not guilty. On December 9, 1886, on leave given, tbe plaintiff changed tbe form of action from case to covenant, and subsequently, also by leave of court, tbe record was amended by naming as the plaintiff Truman M. Stoddard, for the use of Heman Janes.

No. 409 January Term 1889, Sup. Ct.; court below, No. 71 December Term 1885, C. P. On October 13,1885, the Western Union Telegraph Company brought assumpsit against C. P. Stevenson to recover a balance of $1,330.69, alleged to be due upon an account for messages sent and received by the defendant over the plaintiff’s wires. The defendant pleaded non-assumpsit, payment and set-off.

No. 337 January Term 1889, Sup. Ct.; court below, No. 74 March Term 1886, C. P. On February 16,1886, S. T. Neill brought ejectment against S. B. Logan, to recover fifty acres of land in the southwest corner of tract No. 41, in Kinzua township. The defendant was in possession under a lease for oil purposes from one U. G. Hoyt, and pleaded not guilty.

No. 261 January Term 1888, Sup. Ct.; court below, No. 816 March Term 1884, C. P. On -February 27, 1884, George R. Messmore and Albert G. Messmore, executors of the will of John Messmore, deceased, brought trespass quare clausum fregit against William J. Ole-wine and others, to recover damages for an entry by the defendants upon a certain tract of land containing fifteen acres, alleged to be tbe property of tbe plaintiffs, and for tbe cutting of timber and erecting of certain…

Nos. 445 January Term 1889 and 20 July Term 1889, Sup. Held: inter alia, that the plaintiffs’ declaration was not in such form as to sustain an award of treble damages under § 3, act of March 29, 1824, 8 Sm. L. 283.

No. 357 January Term 1889, Sup. Ct.; court below, No. 93 January Term 1888, O. & T. On January 20,1888, the grand jury returned as a true bill an indictment charging John W. Rudy with the murder of Christian Rudy. The prisoner being arraigned pleaded, not guilty. On June 6; 1888, the indictment was called for trial, and, the panel of jurors being exhausted before a jury was obtained, a special venire was awarded.

No. 61 July Term 1888, Sup. Ct.; court below, No. 2 Equity Docket, p. 291, C. P. in Equity.

No. 176 January Term 1889, Sup. Ct.; court below, No. 64 January Term 1888, C. P. On January 28, 1889, the Court of Common Pleas directed an issue between John H. Spatz, as plaintiff, and C. B. Renninger, as defendant, to determine the ownership of certain personal property, caused to be levied upon by Renninger as the goods of William D. Snader.

No. 164 January Term 1889, Sup. Ct.; court below, No. 52 June Term 1875, C. P. On May 20, 1875, A. K. Warfel brought trespass quare clausum fregit against Henry C. Knott, to recover damages for tbe alleged wrongful act of Knott in breaking into plaintiff’s close and tearing down his fence. Plea, not guilty.

No. 355 January Term 1889, Sup. Ct.; court below, No. 80 April Term 1886, C. P. On April 6, 1886, Rosina Seager, executrix of the last will and testament of John Seager, deceased, brought debt against the Home Mutual Life Association of Pennsylvania, upon a policy of insurance on the life of her testator in the sum of $500, issued by the defendant association on April 3, 1879. The defendant’s pleas were payment and payment with leave.

No. 430 January Term 1889, Sup. Ct.; court below, Trust Book No. 11, p. 9, C. P. On October 1,1887, John F. Griel, assignee for the benefit of tbe creditors of Joseph Stark, filed an account whereby he charged himself with having received the sum of $96.50, and took credit for payments amounting to $109.27, making due to the accountant a balance of $12.77.

No. 450 January Term 1889, Sup. Ct.; court below, No. 13 October Term 1888, C. P. On September 13, 1888, John Kister brought assumpsit against the Lebanon Mutual Insurance Company of Jonestown, Pa., upon a policy of insurance against fire issued to tbe plaintiff by the defendant company. The defendant pleaded, nonassumpsit.

No. 64 July Term 1889, Sup. Ct.; court below, No. 29 September Term 1887, C. P. On August 24, 1887, George S. Boone brought assumpsit against John R. Bitner, executor of the last will and testament of James Boone, deceased, to recover compensation for services alleged to have been rendered by the plaintiff to the defendant’s testator in his lifetime, and for expenses alleged to have been incurred in connection with the rendering of said services.

No. 65 July Term 1889, Sup. Ct.; court below, number and term not shown. On June 18, 1888, the account of William C. Daisz, acting executor of the will of Christopher Daisz, deceased, was presented and confirmed nisi. Exceptions having been filed, Mr. D. McMullen was appointed auditor, to pass upon the exceptions and to report a distribution of the balance found to be in the hands of the accountant.

No. 66 July Term 1889, Sup. Ct.; court below, No. 120 August Term 1888, Q. S. On September 1,1888, the grand jury returned as a true bill an indictment charging John Shaffer with huckstering in York county without a license, in violation of the act of May 18,1866, P. L. 1097. On motion of the defendant, the indictment was quashed, Latimer, J., for the reason stated in the opinion of the Supreme Court.

No. 70 July Term 1889, Sup. Ct.; court below, No. 106 April Term 1888, C. P. To the number and term of the court below, Mary Weigle filed her appeal from the judgment of a justice of the peace, in an action brought against her by the New Era Life Association of 1876, for the use of J. M. Wiestling, receiver of said association.

No. 46 July Term 1889, Sup. Ct.; court below, No'. 102 November Term 1888, C. P. On November 16, 1888, Abram Hershour entered his appeal from a judgment against him in an action before an alderman of the city of Lancaster, brought by Henry S. Felpel, to recover wages of manual labor. On November 21, 1888, the plaintiff filed a statement of claim, setting out that there was due him from the defendant, for wages of manual labor as a farm hand, the sum of $49.65.

No. 341 January Term 1889, Sup. Ct.; court below, No. 66 April Term 1884, Q. S. On April 21,1884, Jacob L. Frey presented his petition to the Court of Quarter Sessions of Lancaster county in which he averred: “ That at the April sessions, in the year 1884, of the said court, a petition was presented praying for the appointment of viewers to assess the damages caused by the opening of First street in the city of Lancaster, from West End avenue to Dorwart street, and the court…

No. 83 July Term 1889, Supt. Ct.; court below, No. 21 April Term 1879, Q. S., and No. 56 August Term 1882, C. P. This case was an award of damages to Maria L. Clark, caused by the opening of Broad street, in the city of Lancaster, followed by an issue and judgment in the Court of Common Pleas, certified back to the Court of Quarter Sessions, and rule granted therein.

No. 11 July Term 1888, Sup. Ct.; court below, No. 43 September Term 1883, O. C. William Fagely died at Shamokin, Pa., on February 17,1874, leaving to survive him neither father, mother, widow, nor children.

No. 152 July Term 1888, Sup. Ct.; court below, number and term not shown. On May 4,1887, Isaac Albert filed a final account as guardian of George W. Lahr, a minor, which on September 8,1887, was confirmed nisi.

No. 92 July Term 1889, Sup. Ct.; court below, Equity Docket No. 2, page 271; C. P. in Equity. On October 5, 1885, W. W. Groff, Peter Dorsheimer and Andrew Johe filed in the court below their bill in equity against the Bird-in-PIand Turnpike Company, praying for an injunction to restrain the defendant company from constructing a turnpike road upon and over a certain public road in the township of East Lampeter, Lancaster county, commonly known as the Old Philadelphia Road.

No. 398 January Term 1889, Sup. Ct.; court below, No. 28 April Term 1889, C. P. On February'7, 1884, an action of ejectment was brought by J. R. Lowrie, trustee, and. by subsequent substitution the Tyrone Mining & Manufacturing Co., against James S. Cross, for a parcel of land in Halfmoon township claimed by the plaintiff to be a portion of a tract surveyed in the nailte of Richard Whitehead, an outline of which appears in the report of a former trial: Cross v. Tyrone M. &…