Volume 133 — Pennsylvania State Reports

No. 109 July Term 1889, Sup. Ct.; court below, number and term not given. On October 4, 1886, N. Adeline Irwin filed her second account as executrix of the will of Ninian Irwin, deceased. Exceptions having been filed by creditors, the court below appointed Mr. Jacob V. G-otwals auditor, to pass upon the exceptions and to make distribution of the moneys in the hands of the accountant.

No. 282 January Term 1889, Sup. Ct.; court below, No 96 September Term 1888, C. P. To the number and term of the court below, an issue was framed to determine whether a judgment confessed by Jacob Kohr to Christian Kohr for $1,420, to No. Ill November Term 1883, was “ without consideration; and if so, was it confessed with intent to hinder, defraud or prevent the estate of Jacob Wolf from collecting its claim and subsequent judgment from the real estate of said Jacob Kohr?”…

No. 382 January Term 1889, Sup. Ct.; court below, No. 192 September Term 1887, C. P. To tbe number and term of the court below, an appeal was entered from tbe judgment of a justice of the peace in favor of Elizabeth Miller against Davilla Snyder, tbe appeal having been taken by the defendant in the judgment. Issue.

Nos. 466, 467 January Term 1890, Sup. Ct.; court below, No. 58 August Term 1886, C. P. On May 10, 1886, a judgment was entered in favor of H. F. Mark against D. R. Speck, William Ulricb and John H. Speck. Tills judgment, on April 3, 1888, was assigned to Samuel Fry, who on May 1, 1888, assigned it to David. M. Rank.

No. 184 July Term 1889, Sup. Ct.; court below, No. 141 July Term 1889, C. P. On May 29,1889, an affidavit, copy of book account and bond being filed, an attachment under the act of March 17, 1869, P- L. 8, was issued in a cause wherein “ A. & D. M. Hoppes, Agents,” were plaintiffs, and A. W. Houtz, defendant. The bond filed was in form as follows: “Know all men by these presents that we, A. & D. M. Hoppes, Agts., G. B. Wagner and Wm.

No. 363 January Term 1889, Sup. Ct.; court below, number and term not given. On January 23, 1886, Louis Riegel and Reuben Riegel, surviving executors of the will of Daniel Riegel, deceased, presented their second account, which, on exceptions filed, was referred to Mr. R. K. Koch, as auditor.

<p>No. 116 January Term 1890, Sup. Ct.; court below, No. 100 January Term 1885, C. P.</p> <p>On J une 14, 1889, tbe record from this court of the case reported as Freiler v. Kear, 126 Pa. 470, was filed in the court below. For the facts, see the former report, and specially the modifying order of the Supreme Court dated June 7,1889,126 Pa. 477.</p> <p>On September 16, 1889, the court below fixed a day “for argument in the above case,” and on November 26,1889, an opinion was filed (not printed in the paper-books), with an order directing judgment to be entered on the verdict. Thereupon, the defendant Kear took this appeal, filing assignments of error, all relating to rulings made during the first trial in the court below, except one specifying that the court erred :</p> <p>6. In entering judgment on the verdict of the jury.</p>

No. 217 January Term 1890, Sup. Ct.; court below, No. 808 September Term 1885, C. P. On August 20, 1885, William W. Thompson brought ejectment against the Philadelphia & Reading Coal & Iron Company, to recover 39 acres and 100 perches of land in Porter township.

No. 262 January Term 1890, Sup. Ct.; court below, number and term not given. On June 19, 1888, F. T. Beck, executor of tbe will of Elizabeth Beck, deceased, settled the first and final account of his administration of said estate, exhibiting a balance in his hands for distribution. Subsequently the court appointed Mr. Brua O. Keefer auditor, inter alia, to report á distribution of the money in the accountant’s hands.

No. 240 January Term 1890, Sup. Ct.; court below, No. 42 November Term 1886, C. P. On October 28, 1886, Mary Kintzel brought debt against Henry D. Kintzel, her son, to recover arrears of a dower charge in her favor upon the defendant’s lands, and, on October 30th, the defendant appeared and confessed judgment de terris, against the lands described in the writ, for the sum of $1,802.91.

No. 247 January Term 1890, Sup. Ct.; court below, number and term not given. On February 8, 1889, David Long filed his final account as assignee for the benefit of creditors of Stephen W. Boltz. Subsequently, the court appointed Mr. Charles H. Killinger, auditor, to distribute the fund shown by the account to be in the hands of the assignee.

No. 251 January Term 1890, Sup. Ct.; court below, number and term not given.

No. 254 January Term 1890, Sup. Ct.; court below, No. 226 November Term 1889, C. P. On October 11, 1889, a writ of certiorari to M. M. Ketner, a justice of tlie peace, was issued, and the return made thereto showed that on June 8, 1889, judgment was entered by said justice in favor of William Weisman against Lewis Weisman for $26, and costs. The transcript did not show the consideration of the indebtedness.

No. 324 January Term 1889, Sup. Ct.; court below, No. 438 December Term 1888, C. P. No. 4. On December 5, 1888, James S. Swartz brought assumpsit against the Farmers and Mechanics National Bank of Philadelphia.

No. 458 January Term 1889, Sup..Ct.; court below, No. 397 March Term 1888, C. P. No. 1.

No. 28 July Term 1889, Sup. Ct.; court below, No. 210 June Term 1888, C. P. No. 3. On May 21, 1888, J. Dickinson Sergeant and Henry S. Lowber, trustees under the will of Thomas Sergeant, deceased, brought scire facias against Charles Martin upon a mortgage for $2,500, dated February 7, 1887, executed by the defendant to the plaintiffs.

No. 7 July Term 1889, Sup. Ct.; court below, No. 411 June Term 1877, C. P. No. 2, in Equity.

No. 95 July Term 1889, Sup. Ct.; court below, No. 1008 June Term 1887, C. P. No. 3. On September 3, 1887, Patrick McCullough, committee of the person and estate of Thomas J. McAneny, a lunatic, brought assumpsit against the Expressman’s Mutual Beneficial Association of Pennsylvania, to recover sick benefits alleged to be due to said lunatic, as a member of the defendant association. Issue.

No. 48 July Term 1888, Sup. Ct.; court below, No. 551 December Term 1888, C. P. No. 4.

No. 385 July Term 1889, Sup. Ct.; court below, No. 367 May Term 1883, C. P. On April 23, 1883, J. P. O’Donnell filed in the court below a transcript of a judgment for $275, recovered by him before a justice of the peace against the School District of Cass township.

No. 369 January Term 1889, Sup. Ct.; court below, No. 38 October Term 1880, C. P. On June 14, 1880, William Baylor brought trespass vi et armis et de bonis asportatis against W. S. Decker, William ' Blume and ten others, to recover damages for taking fish in “ Baylor’s Pond,” formerly “ Finn’s Pond.” (See Reynolds v. Commonwealth, 93 Pa. 458.) Issue.

No. 82 January Term 1890, Sup. Ct.; court below, No. 886 April Term 1887,,C. P. On February 28,1887, Thomas F. Torrey brought trespass against the city of Scranton. Issue having been joined, the cause was referred to Mr. W. A. Wilcox, as referee, under the provisions of the act of 1869, and its supplements (perhaps, act of April 6, 1869, P. L. 725).

No. 84 January Term 1890, Sup. Ct.; court below, No. 575 October Term 1889, C. P. On August 5, 1889, Thomas J. Jordan filed a petition averring that on the third Tuesday of February, 1889, he had been duly elected, and afterwards qualified, as collector of taxes for the borough of Oliphant, under the provisions of the act of June 25, 1885, P. L. 187; that thereupon it became the duty of the commissioners of Lackawanna county to issue their duplicate for county taxes for the…

No. 97 January Term 1890, Sup. Ct.; court below, No. 20 October Term 1889, O. & T. On October 2, 1889, the grand jury returned as a true bill an indictment charging Patrick White with robbery from the person of one James Carroll. Issue.

No. 252 January Term 1890, Sup. Ct.; court below, No. 210 June Term 1889, C. P. On April 9, 1889, .judgment was entered by confession, in the court below, in favor of the School District of Scranton city against Alexander Simpson and others, upon a bond in the penal sum of $60,000, conditioned for the faithful performance by Alexander Simpson, treasurer of said school district, of his official duties as such, and the true accounting by bim for all moneys of the district…

No. 255 January Term 1890, Sup. Ct.; court below, number and term not given.

<p>No. 279 January Term 1890, Sup. Ct.; court below, No. 574 June Term 1889, C. P.</p> <p>On May 20, 1889, a scire facias was issued by the city of Scranton against Lewis Jones, upon a municipal claim filed in the form following:</p> <p>“ Under the provisions of the several laws and ordinances relating to the same, the city of Scranton hereby files a claim for sewer assessment againsUall that certain piece or parcel of land, with the improvements thereon, situate in the Ninth ward of the city of Scranton, and bounded and described as follows, to wit: Being lot 21, in block 28, as laid out and numbered on the assessment map of the Ninth ward of Scranton on file in the office of the city clerk:</p> <p>STATEMENT OF CLAIM.</p> <p>Owner or Reputed Owner. Date of Assessm’t. For what purpose. Amount.</p> <p>LEWIS JONES. Aug. átb, 18S6. Main Sewer in Jth district. $27.09.</p> <p>“ The prothonotary of Lackawanna county is hereby requested to file the above claim as a lien against the above described property and against the said owner or reputed owner, and for the sums set forth in the above statement.”</p> <p>A rule having been granted on October 8, 1889, to show cause why the claim should not be stricken off, after argument, the following opinion was filed, Archbald, P. J.:</p> <p>The so-called statement of lien in this case amounts to no more than a claim of lien for an alleged “ sewer assessment ” against a certain—or rather uncertain—lot of land in the city of Scranton followed by this brief memorandum:</p> <p>STATEMENT OF CLAIM.'</p> <p>Owner or Reputed Owner. Date of Assessm’t. For what purpose. Amount.</p> <p>LEWIS JONES. Aug. 4th, 1886. Main Sewer in 4th district. $27.09.</p> <p>The whole substance of the claim it to be found in this memorandum. It is not even supported by an averment that a sewer has in fact been constructed or determined upon. It seems to me you could as well expect that a copy of a note or book account should pass for a declaration, as that this memorandum should stand as a specification of lien.</p> <p>The form of statement for a municipal lien is not, as in the case of mechanics’ liens, presented by the statute: Act of May 23, 1874, §§ 36, 37 and 47; but it is provided that proceedings may be had thereon by scire facias, as in the case of mechanics’ liens; and, as was said with regard to the somewhat similar act of April 16, 1846, § 10, in Philadelphia v. Sutter, 30 Pa. 55, “ it is evident that the intention of the legislature in all these acts was to assimilate the security and collection of such municipal claims to those of mechanics and material men.” If this be so, then substantially the same precision must be observed in the one case as the other. As was further said, in the case cited, “ the whole proceeding is one of statutory creation, and the creditor who seeks to avail himself of it must bring his case within the letter and intention of the statutes.” Enough must therefore bo set forth in each case to establish a statutory liability.</p> <p>The statement of lien must upon its face be self sustaining. “It is conceded on all hands ” says Mr. Justice Mitchell, in Philadelphia v. Richards, 124 Pa. 308, “ that a lien upon a municipal claim for paving being of purely statutory creation, the claim must aver upon its face all the facts necessary to sustain its validity, and that unless it does so it may be summarily struck off by the court upon motion.” It is not sufficient therefore merely to assert a claim of lien ; enough must be set forth upon the record to show a lien in fact. It is in this respect that the statement before us is deficient; a claim is no doubt made, but not made out. Even conceding, if you will, that the nature and extent of the claim are indicated in the schedule of terms and figures quoted, it still remains after all a claim of lien and no more. The right to a lien against the property in question is nowhere made to appear. Upon what then, it may be asked, does the right to a lien, in such a case as the present, depend ? An answer to this question will disclose what is wanting in the claim of lien before us.</p> <p>The provisions of the law with regard to the construction of sewers in cities of the third class are to be found in the forty-seventh section of the act of May 23, 1874, and the method of assessing properties beneficially affected by a sewer also appears there. The first step in this process is an ordinance of the city councils providing for the division of the city into sewer districts. We do not need to consider in this connection what must be the basis of such an ordinance, nor what it shall contain. The city must no doubt, upon a trial in court on the merits, show a valid ordinance passed in due compliance with all the requirements of the statute. But these are merely matters of evidence and do not have to be touched upon in the claim: Philadelphia v. Richards, 124 Pa. 303. But, as the basis of a lien, the due passage of such an ordinance must be averred, and the property against which the lien is filed must in some way be shown to be affected therebjr, and made subject to assessments for main or local sewerage or both.</p> <p>The next step is the assessing of the costs and expenses of any sewer which has been determined upon. The costs of a main sewer may be assessed upon the lots and lands within the sewer district where the work is to be done, (a) according to the valuation of the same on the city duplicate, or (5) according to benefits; the costs of local sewerage majr be assessed, (a) upon the feet front of lots and lands by or through which such portion of any local sewer shall pass, nr (5) according to the valuation of the same upon the duplicate aforesaid, or (e) in proportion to benefits upon lots and lands benefited by such local sewerage. When the assessment for main or local sewerage is to be made according to benefits, five disinterested freeholders are to be appointed as assessors, and when they have made their assessment and reported the same to the city councils, public notice is required to be given, and opportunity afforded for exceptions to such report. Which of these methods shall be pursued in any given case, it is for the councils to determine by ordinance. But it is highly important to every one who is called upon to defend himself against a claim for sewer assessment, to know whether it is for main or local sewerage, and by which method such assessment has been laid against his property. Without such information what means has he of deciding whether he has been duly assessed or not ? Moreover, if the lien furnishes nothing to show the basis of the assessment, there is nothing by which its validity may be tested, nor is a statutory liability made out. The statement of lien must therefore disclose the character of the assessment claimed, whether for main or local sewerage, and the method by which it has been assessed upon the property sought to be charged therewith.</p> <p>The record must further show a claim which is due and enforceable at the time the scire facias issues to collect the same, and must give all the data as to debt, interest, and penalty, if any, by which a correct judgment may be made up. The time when the sewer assessments in any particular case shall be payable, is of course to be determined by the city councils. If the last clause of the forty-seventh section of the statute be constitutionally valid, about which it seems to me there may be some question, the councils may cause such assessments to be collected before the work is contracted for. But, however that may be, the time within which they have declared that the assessments shall be paid must somehow be made to appear. The mere fact that a claim of lien has been entered, determines nothing, because a lien is given from the time of the assessment regardless of the question of when it is payable. When, therefore, a recovery is sought upon the claim by scire facias, according to the provisions of the thirty-seventh section of the statute, the assessment must be due, arid the claim of lien must show that it is. The claimant cannot go outside of the record, for it is by the face of the record that the writ must be sustained. Dependent upon the same fact, also, is the question of interest and penalty if any. Interest does not run from the date of the assessment, but from the time when it was due, nor does any penalty accrue until default has been made. It is an essential part, therefore, of the statement of the amount of the claim, that the time when the assessment was due be given, so that the right to these additions to the face of the assessment may be measured and determined.</p> <p>It will not be controverted but that a sufficient description of the property against which the lien is filed shall be given. One of tbe first requisites of such description, is a statement of the county in which the land lies; and from the face of tbe lien, in order to meet tbe requirements of tbe statute, tbe land in question should appear to be within the county where the claim is filed. Judged by this, the present claim, as it stands, is fatally defective. ^It is nowhere suggested that the lot mentioned is in the county of Lackawanna, or even within the state. Where it is merely a matter of evidence, we will no doubt take judicial notice that the city of Scranton is situated within the limits of this county. But in a local action the description of the property is material, and must on its face establish the jurisdiction. I very much doubt whether, even after judgment upon the lien, a sheriff’s sale upon any such description would convey title. But this is not all that may be said of the present description. The lot is given no locality-—except that it is in the Ninth ward of the city of Scranton—other than by a lot and block number, upon a so-called assessment map of said ward, on file in the office of the city clerk. If this map were connected by anything in the claim, with an ordinance establishing a sewer district, this bare reference to it might perhaps be sufficient. Id certum est quod certum reddi potest. But the map is in no wise designated, except as an assessment map on file in the city clerk’s office. It is possible that the present city authorities have an idea what map is thus referred to, but it is clear, that to the general public there is no certainty in the reference, nor anything by which legal rules can be made certain. How the map came where it is, or by what sanction it is made a standard, is not disclosed to us. Without this, the reference is ineffectual and conveys no information.</p> <p>Even were this reference legally sufficient, we cannot commend such meagreness of description as the claim before us is convicted of. No boundaries to the lot are given, nor its dimensions, nor whether it is situated upon a street or alley. It seems doubtful to me whether we would allow a sheriff’s sale of the defendant’s property to proceed, without some if not all of these particulars being stated, and, if that be so, they would have to be in the lien in order to get into the levari facias, and from there into the sheriff’s advertisement. We do not, of course, undertake to definitely decide this, but in the interest at least of careful practice it is commended to the attention of those concerned.</p> <p>If the conclusions thus reached are sound, the present claim cannot stand. At its best estate, it fails to show the establishment of a sewer district embracing the property in question, or by what method the sewer assessment claimed was made or when it was due, and the description of the property is vague, uncertain and insufficient. From beginning to end the statement is defective. As was said at the beginning, it is simply a claim of lien, with a bare memorandum of the extent and character of the claim. This does not satisfy the law, as we understand it. The rule to show cause is made absolute and the lien stricken off.</p> <p>•—Thereupon the plaintiff took this appeal, specifying that the court erred in making the rule absolute and striking off the claim.</p>

No. 32 January Term 1889, Sup. Ct.; court below, No. 33 December Term 1886, C. P. On November 16, 1886, Cyrus K. Rhoads brought case against Jacob Davidheiser, to recover damages for the washing of surface water upon a lane of the plaintiff, alleging that the same had been unlawfully turned upon his lane by the defendant. The plea of the defendant was not guilty.

No. 170 January Term 1889, Sup. Ct.; court below, No. 472 September Term 1886, C. P. No. 2, On November 6, 1886, John J. Kersey petitioned the court below for the appointment of viewers to assess damages arising to the petitioner, by reason of the location and construction, by the Schuylkill River East Side Railroad Company, of a railroad upon and across certain land in the city of Philadelphia.

No. 61 July Term 1889, Sup. Ct.; court below, No. 19 March Term 1889, C. P. On February 4, 1889, the First National Bank of Butte, Montana, brought assumpsit against Louis S. Fiske and Frank H. Kean, copartners, trading with John Dobson, special partner, as Louis S. Fiske & Co. The plaintiff filed a statement of claim for a recovery of damages for the refusal of the defendants to honor certain drafts drawn upon them by one James R. Reid, and discounted by the plaintiffs…

No. 137 January Term 1890, Sup. Ct.; court below, number and term not given. S. M. Dutton and Abraham Wentz, executors of the last will and testament of Wells Tomlinson, deceased, having filed an account of their trust exhibiting a balance in their hands for distribution, and the same having been duly confirmed, the court below appointed Mr. Charles H. Stinson auditor, to report a distribution of said balance.

No. 218 January Term 1890, Sup. Ct.; court below, number and term not given. Held: and his opinion on the point was not disputed before the court. That the effect of a codicil duly executed is to republish the will to which it refers, whether the codicil be annexed to the will or not, is the doctrine of all the authorities.

No. 82 July Term 1889, Sup. Ct.; court below, No. 228 January Term 1886, C. P. On December 21, 1885, the defendant filed an appeal from the judgment of a justice of the peace in an action brought by Alanson Knapp against Joseph R. Miller, and on March 19, 1886, the plaintiff filed a declaration in trover and conversion of certain pigs. The defendant pleaded not guilty.

No. 28 January Term 1890, Sup. Ct.; court below, No. 557 June Term 1889, Q. S. On June 19, 1889, the grand jury returned as a true bill an indictment charging William W. Unger, William Gardner, George Shaub and R. Sinton with hawking and peddling goods within the county of Schuylkill, contrary to the provisions of the act of April 17-, 1846, P. L. 364. The defendants pleaded not guilty.

No. 174 January Term 1890, Sup. Ct.; court below, No. 150 October Term 1889, Q. S. On October 8, 1889, the grand jury returned as a true bill an indictment against Wolf Johnson, in two counts.

<p>1. An assignment of error which avers merely that the court erred in dismissing the exceptions to a master’s report, without setting out the exceptions, will not he considered by the Supreme Court.</p> <p>' 2. The master finding upon the evidence that a deed of conveyance was not procured by fraud and that the consideration therefor was adequate, it was not error to dismiss a bill filed by the heirs of the grantor for its cancellation.</p>

No. 105 July Term 1889, Sup. Ct.; court below, No. 15 February Term 1887, C. P. On January 12,1887, an amicable action was entered between John Henry Cheetham, plaintiff, and Kate S. Muhlenberg and others, defendants, whereupon the plaintiff filed a declaration in trespass, claiming to recover damages for the erection by the defendants of a certain platform and stairway projecting from a house in the city of Beading, owned by said Kate S. Muhlenberg, and extending, as was…

No. 111 July Term 1889, Sup. Ct.; court below, No. 119 August Term 1888, C. P. On August 3, 1888, William H. Scott brought, assumpsit against the Sun Fire Office, of London, to recover upon a policy of insurance against loss by fire. Issue.

No. 142 July Term 1889, Sup. Ct.; court below, No. 471 Equity D. 1889, C. P. On March 8, 1889, Hannah Hoch filed a bill in equity against Albert R. Bass, Henry Weiler, J. Shannon, Samuel Long and Nicholas Long, trading as tbe Franklin Paint and Ochre Company, the material averments and tbe prayers thereof being as follows : “ 2.

No. 33 January Term 1890, Sup. Ct.; court below, No. 33 January Term 1889, C. P. On December 27, 1888, Henry Bennetluim brought ejectment against Levi Wesley Bowers, and the same day filed a declaration and entered a rule to have arbitrators chosen.

<p>A guardian, who receives a collectible note as part of his ward’s estate, and neglects to secure its payment by obtaining judgment or otherwise, but, with ample time and opportunity so to secure it, permits the property of the maker to be distributed under an assignment for the benefit of creditors, is guilty of supine negligence and becomes chargeable with the amount thereof.</p>

No. 205 January Term 1890, Sup. Ct.; court below, number and term not given. On April 1, 1889, the account of James R. Griesemer and David R. Griesemer, administrators of Henry D. Griesemer, deceased, who was trustee of Samuel L. Mannerback, under the will of Frisca L. Mannerback, deceased, exhibiting a balance of $7,725.20 in the bands of tbe accountants, came up for audit.

No. 268 January Term 1890, Sup. Ct.; court below, number and term not given. On November 14, 1889, Howard E. Harbster petitioned the court below for a citation against John G. Mohn and Jacob Holl, executors of the will of William Harbster, deceased, requiring them to show cause why they should not pay to the petitioner the principal of a legacy bequeathed by said will.

No. 211 January Term 1890, Sup. Ct.; court below, No. 20 May Term 1888, C. P. On March 31,1888, Mary A. Winters brought dower unde nihil habet against Jeremiah DeTurk. The defendant pleaded, ne unques seisie que dower, alienation by the plaintiff, and the statute of limitations. At the trial on September 25, 1889, tbe following facts were shown: The plaintiff was the widow of one Isaac Winters, to whom she was married on August 7,1845.

No. 330 June Term 1890, Sup. Ct.; court below, number and term not given. On January 1,1889, the account of Albert F. and Effinger F. Bechtel, executors, etc., of Abraham B. Bechtel, deceased, was called for audit. At the hearing on March 13, 1889, the National Bank of Pottstown presented for allowance a note dated August 12, 1887, for $1,600, drawn by Joseph B. Bechtel to the order of Abraham B. Bechtel, ind used by Abraham B. Bechtel, and payable at said bank.

No. 49 July Term 1889, Sup. Ct.; court below, No. 159 December Term 1888, C. P. No. 2. On December 28, 1888, Stephen Flanagan, surviving James M. Flanagan, partners trading as S. & J. M. Flanagan, brought assumpsit against Jacob M. Duncan and Simon Poey, now or late trading as Duncan & Poey. The sheriff made, a return of service as to Duncan, and nihil habet as to Poey.

No. 124 July Term 1889, Sup. Ct.; court below, No. 74 March Term 1888, C. P. On February 14, 1888, William McGeorge, Jr., and others, executors and trustees under the will of Thomas Kent, deceased, brought trespass against Sellers Hoffman, to recover damages for the alleged unlawful maintenance of a mill dam by the defendant, at such a height as to injure the land of the plaintiffs and interfere with the operation of plaintiffs’ mills thereon.

No. 125 July Term 1889, Sup. Ct.; court below, number and term not given. The sheriff having paid into court a fund arising from the sale of certain real estate as the property of Alvin P. Henderson, the court below appointed Mr. Qeorge JE. Darlington, auditor, to distribute said fund.

No. 191 January Term 1890, Sup. Ct.; court below, No. 93 December Term 1887, C. P. On November 14, 1887, Bacbaracb, Locb & Co., brought replevin against the Chester Freight Line and Morton & Black, for three cases of dry goods. The goods being delivered to the plaintiffs, issue.

No. 88 July Term 1889, Sup. Ct.; court below, No. 387 May Term 1881, C. P. On April 18, 1881, James R. Cleaver and William Cleaver brought covenant against Joseph W. Garner and Michael Garner, filing a declaration which set out a sealed agreement between the plaintiffs of the one part and the defendants of the other part, made on October 8, 1875, whereby the plaintiffs sold to the defendants, “ inter alia, certain personal property, to wit: Certain loose foundry property,…

No. 92 January Term 1890, Sup. Ct.; court below, number and term not given. On February 2, 1888, Edward J., Thomas H. and A. Lincoln Phillips filed their first account as executors of the will of John Phillips, deceased. The account showing a balance in tbe bands of tbe accountants, Mr. John W. JRoseberry was appointed auditor, for the purpose, inter alia, of reporting a distribution of said balance.

No. 27 July Term 1889, Sup. Ct.; court below, No. 54 January Term 1887, C. P. On November 80, 1886, James Nichols brought ejectment against Asa A. Nicbols and others, for the undivided one fifth of 98 acres in South Abington township. The defendants filed a disclaimer as to certain portions of the land alleged to have been aliened by a former holder of the title, and pleaded not guilty as to the residue.

No. 471 January Term 1889, Sup. Ct.; court below, No. 4 October Term 1886, C. P. On August 10, 1886, Joseph H. Werner brought case against the Pen Argyl Land Improvement Company. Issue.

No. 77 July Term 1889, Sup. Ct.; court below number and term not given.

No. 43 January Term 1890, Sup. Ct.; court below, No. 17 June Term 1884, C. P. To the number and term of the court below, tbe Standard Metallic Paint Company brought ejectment against the Prince Manufacturing Company and Wilson Kline. Issue.

No. 58 January Term 1890, Sup. Ct.; court below, number and term not given.

<p>I. When a public officer claims a salary, fees, or compensation for services rendered to the public, he must show an act of assembly authorizing his demand; if he cannot show such act of assembly, he cannot recover compensation for the sendees rendered.</p> <p>2. A city school district, which is organized under a special act and never accepted the provisions of §§ 41-14, act of May 23, 1874, P. L. 230, is not liable to the city controller for compensation for services in auditing its accounts, though rendered in obedience to a resolution of the district.</p>

No. 303 January Term 1890, Sup. Ct.; court below, No. 12 October Term 1888, C. P. On August 18, 1888, a case stated was filed, wherein James McCauley was plaintiff, and tbe school district of tbe city of Easton was defendant, setting out as follows: Tbe city of Easton is a city of tbe third class, incorporated under tlie act of assembly of May 23, 1874, P L. 230, and became such on the first Monday of April, 1887.

No. 317 January Term 1890, Sup. Ct.; court below, number and term not given. On March 6, 1889, a final account of Reuben Messinger, executor of the will of Jacob Gold, deceased, exhibiting a balance in the hands of the accountants, was presented in the court below and confirmed nisi, and thereupon the court appointed Mr. A. B. Longalcer, auditor, to make distribution of said balance.

Nos. 9 and 319 January Term 1890, Sup. Ct.; court below, No. 1 August Term 1889, C. P. in Equity.

No. 93 January Term 1890, Sup. Ct.; court below, No. 13 June Term 1885, C. P. On April 20, 1885, John A. Geissinger, as plaintiff, filed in the Court of Common Pleas a… Held: the appellee having acquiesced in the appeal for more than twelve months, that for this reason alone the objection came too late. W e can see no sufficient reason why the principle of these decisions, and of the many others to the like effect, which might be cited, is not applicable to the present case.

No. 138 January Term 1890, Sup. Ct.; court below, number and term not given.

No. 144 January Term 1890, Sup. Ct.; court below, No. 25 April Term 1887, C. P. On March 1, 1887, Charles A. Zoebisch brought assumpsit against James K. Rauch, Charies R. Rauch, George W. Riegel, Otillia M. Reigel, Hendrick B. French and Laura French, for the breach by the defendants of an alleged parol contract to purchase of the plaintiff an estate for the life of defendant’s father, Charles W. Rauch, in certain realty, and a ground rent of $600. Issue.

<p>No. 234 January Term 1890, Sup. Ct.; court below, No. 46 August Term 1889, C. P.</p> <p>On August 17, 1889, Mrs. Minnie Riekert brought trespass against Jolin Stephens, John S. Jackson and others, partners as Stephens, Jackson & Co., to recover damages for the death of plaintiff’s husband, charged to the alleged negligence of the defendants. Issue.</p> <p>At the trial on November 20, 1889, the plaintiff's case having closed, the court on motion entered judgment of nonsuit, with leave, etc. A rule to show cause why the judgment should not be vacated having been argued, the following opinion was filed, Schuyleb, P. J.:</p> <p>At the time of the accident which has given rise to the present suit, the defendants owned and operated an extensive slate quarry in this county. The quarry was about á hundred feet deep, and, to remove the rubbish, as it accumulated from time to time in the bottom of the quarry, heavy boxes were used, which were raised and lowered by means of derricks placed on the banks of the quarry and worked by steam power. The operation of the derricks was regulated by signals, consisting of motions with the hands and arms, given by some one at the bottom of the quarry to a person stationed on the bank, whose duty it was to repeat the signals to the engineer. On the occasion in question, the husband of plaintiff was employed in the quarry, when a descending box struck him with so much force as to cause almost instant death. The plaintiff now seeks to recover damages for the death of her husband, alleging that it occurred through the negligence of the defendants.</p> <p>It is not pretended that the defendants had any direct connection with the accident, but the right to recover is placed on other grounds. When the accident happened, the person on the bank attending to the signals was William Jackson, a boy only thirteen years and four months old. The theory of the plaintiff is made up of four distinct propositions which may be stated as follows: 1. This boy Jackson caused the accident by motioning to the engineer to lower the box, without first receiving a signal from the bottom of the quarry, which was negligence on his part. 2. He was employed by the defendants. 8. He was incompetent to fill so responsible a position; and 4. The defendants, in employing such a boy to fill such a position, were guilty of negligence. The plaintiff contends there was sufficient evidence to have justified the jury in finding each one of these propositions in her favor. If this is so and there is nothing more, then we committed error in directing a non-suit to be entered. How is the fact ?</p> <p>Passing by, for the present, the question as to the negligence of the boy Jackson, let us inquire whether there is any evidence to support the second proposition; that is, that Jackson was employed by the defendants. The undisputed fact is that the “regular motioner” was another boy by the name of Jacob Fisher. Fisher was at his post during the forenoon of the day of the accident, which happened in the afternoon. Why Jackson was there in the afternoon, and Fisher was not, does not appear. So far as the evidence discloses, it may Lave been the result of a friendly arrangement between the two boys. True, one witness testifies that during the previous two or three years Jackson had been “frequently” there, giving signals, but that may be accounted for by attributing it to the same accommodating spirit on his part. One thing is certain, there is no evidence that Jackson was on the pay-roll of the defendants, that they ever either directly or indirectly employed him, or that they ever saw or heard of such a boy. If the defendants did not employ Jackson, it is too plain for argument that the plaintiff cannot recover. It is a grave charge that the plaintiff brings against these defendants, being no less than that they are responsible for the death of her husband. She must see to it, therefore, that no link in her chain of proofs is left incomplete, and the proofs at all points should be full, clear and satisfactory.</p> <p>But the point we have been considering is far from being the only weak point in the plaintiff’s case. Let us next examine her third1 proposition; that is, that the jury would have been justified in finding, from the evidence, that the boy Jackson was incompetent. No witness swears that he was incompetent, but the jury were to be asked to infer his incompetency from the nature of his employment, in connection with his age. As far as seen, there was nothing in the duty to be performed which a boy of thirteen might not do as well as a full grown man. There is some evidence, however, that when a box is being lowered into the quarry, if no motion to stop is given from below, the motioner on the bank must stop it “ according to his best judgment.” The learned counsel for plaintiff lay great stress upon this part of the motioner’s duty, contending that the presumption is that children under the age of fourteen are without either judgment or discretion, and that therefore' Jackson was prima facie incompetent. We know of no such presumption on the civil side of the court.</p> <p>There are many kinds of age presumptions known to the law, but the particular presumptions just referred to, we think it will be found, are recognized only by the criminal courts, and even in these courts “ the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent’s understanding and judgment, for one lad of eleven years old may have as much cunning as another of fourteen: ” 4 Bl. Com., 28. And in State v. Guild, •5 Halst. 163 (18 Am. Dec. 404), we have the case of a boy of twelve years who was not only convicted, but sentenced and executed for murde/. We make these citations to show how lightly the presumption under consideration is held even in the criminal courts which gave it the only life it has. It is an absurd presumption at best, and ought not to be extended into new fields without clear authority.</p> <p>With this presumption out of the way, there is absolutely nothing left for the charge of incompetency to rest upon. Jackson was examined as a witness and certainly exhibited no lack of intelligence for a boy of his age. His duties, as has been seen, were of the simplest character, unless we except the judgment required in lowering the box, and there is no evidence that even that was beyond the capacity of a boy thirteen years old. If it had been the custom to employ men, or even boys above the age of fourteen, to perform these duties, it would have been easy to produce the proof, and the plaintiff having failed to do so must face the inference that the custom is the other way. Of course, if Jackson was competent, the plaintiff’s fourth proposition must fall to the ground.</p> <p>If the only question at the trial had been whether Jackson’s carelessness had caused the accident, it is possible that it would have been my duty to submit that question to the jury, although the evidence bearing upon it was far from being clear or satisfactory; but even if the jury had so found, that standing alone would not have helped the plaintiff. If the lowering of the box without a signal from below was the proximate cause of the accident, then we have presented the ordinary case of the negligence of a fellow servant, unmixed with the question of competency; for disobedience of orders is not confined to boys under fourteen. Moreover, the gravamen of the plaintiff’s complaint is not that Jackson was careless, but that he was incompetent. Indeed, the two terms are inconsistent with each other. Again; if the proximate cause of the accident was the failure to stop the box at the proper place, through a defect of judgment on the part of Jackson, surely it was incumbent on the plaintiff to show in what particular the defect of judgment manifested itself.</p> <p>John Fisher testifies that when a box is lowered into the quarry, “ the man down at the bottom shows how he wants it, and just as he reaches up the boy has to stop it;” that is, he motions to the engineer to stop it. From this it is argued that when the box is lowered without a signal from below, it is the duty of the motioner on the hank to use his “ best judgment ” to stop the box at a point within reach of, but where it cannot injure the men at the bottom. The inference is not a necessary one. Besides, if any such rule existed it was susceptible of positive proof, and being of the very essence of the plaintiff’s case, the jury should not be permitted to guess at it. It must be remembered that it is a part of the plaintiff’s theory that Jackson caused the box to be lowered -without a signal from below, and that in so doing he violated his duty. It is highly improbable that there was any rule prescribing how the box must be stopped,.under such circumstances. There is no evidence of such a rule. The only witness examined on the subject says that the motioner must stop the box according to his best judgment. He does not say that there was a rule of the quarry to that effect; he may have been testifying to his own opinion; nor does he tell us where the box was to be stopped.</p> <p>But the defendants might safely admit the truth <of each one of the propositions on which the plaintiff grounds her right to recover, without present jeopardy at least to the nonsuit entered at the trial, as we are clearly of the opinion that the evidence discloses contributory negligence on the part of the plaintiff’s husband. The box does not always descend in the same place, but it is shifted from place to place as required, by changing a contrivance called the “snap-jack” connected with the derrick. The snap-jack is changed by the engineer in obedience to signals from below, as in the case of raising and lowering the box. Immediately, or soon after the snap-jack is changed, the box descends. It was much mooted at the argument whether, after the snap-jack is changed, the box descends without further signal; but we think that immaterial, as the signal, if given, is not for the protection of the men at the bottom, any one of whom it seems may give it without notice to his fellow-workmen. On the occasion in question, the signal to change the snap-jack was given by the deceased, who as soon as it was given, walked to the very spot where he met his death, and was busy with his work when the box came down upon him. He knew the box was descending, or about to descend; he knew he was entitled to no notice of its descent; he could not tell exactly where it would descend, and yet he goes on about his work without looking out for the box, and apparently without a thought of the impending danger. It is impossible to distinguish the present case in principle, so far as the doctrine of contributory negligence is concerned, from Brossman v. Railroad Co. [113 Pa. 490], and Stoneback y. Thomas Iron Co. [17 W. N. 295], in both of which cases we directed compulsory nonsuits with the subsequent approval of the Supreme Court. Motion denied.</p> <p>■—Thereupon the plaintiff took this appeal, assigning the refusal of the court to take off the judgment of nonsuit for error.</p>

<p>On the trial of an issue in the attachment of a debt due on a purchase money mortgage, held in the name of a wife but attached for the debt of her husband, the trial court having fairly submitted to the jury the question whether the wife had a separate estate, and whether the property in controversy was acquired by means of and upon the credit of it, the verdict of the jury settled in her favor the question of fact, and, no error of law appearing, the judgment in favor of the garnishee was not error.</p>

<p>No. 237 January Term 1890, Sup. Ct.; court below, No. 2 October Term 1888, C. P.</p> <p>On September 10, 1888, Joseph Powell and E. N. Erisbie, as shareholders of the Bangor Union Slate Company, filed a bill in equity against John I. Blair, Simeon B. Chase, Geo. W. Mackey, J. E. Long and the Bangor Union Slate Company, averring, with a specific statement of the facts, that a certain mortgage held by John I. Blair against the property of the Bangor Union Slate Company, for 137,000, had been executed and delivered for a personal loan to Messrs. Chase, • Mackey and Long, who were then the officers of the company, and as such had executed and delivered the mortgage without the consent or authority either of the directors or the stockholders thereof; praying that the mortgage be declared fraudulent and void; that said John I. Blair be ordered and decreed to deliver up the same to be canceled and to make restitution to the company of all money paid to him on account thereof, and for further relief.</p> <p>Answers having been filed and issue joined, the cause was referred to Mr. II. S. Cavanaugh, as examiner and master, who, finding the facts sufficiently appearing in the opinion of the court below, and considering section 7, article XYI. of the constitution; sections 18, 19, act of April 29,1874, P. L. 81; act of April 18, 1874, P. L. 61; Pittsb. etc. R. Co. v. Rothschild, 4 Cent. R. 107; Lewis v. Jeffries, 86 Pa. 840; Green’s Brice’s Ultra Yires, 724; Waterman on Specif. Perf., § 226; Morawetz on Corp., 123-4, 171-6 ; Watts’s App., 78 Pa. 370 ; Ahl v. Rhoads, 84 Pa. 33 9; recommended a decree dismissing the plaintiff’s bill at their costs.</p> <p>To the master’s report the plaintiffs filed exceptions, and after argument thereof, the court, Schuyxeb, P. J., filed the following opinion:</p> <p>On September 29, 1880, the Bangor Union Slate Company, one of the defendants here, executed and delivered to John I. Blair, one of its co-defendants, a mortgage for $37,000, being the amount of the balance of the purchase money then due to other parties from the company for the real estate covered by the mortgage, which balance was being pressed for payment. In exchange for the mortgage Mr. Blair advanced the full sum of $37,500 in cash, and with this money the company canceled its purchase money indebtedness. Of the $37,500, the sum of $17,500 has been repaid to Mr. Blair, and for all present purposes the mortgage is to be treated as if it had been given originally for $20,000. It is not claimed that any part of this $20,000 lias been paid, but we are asked to make a decree that the mortgage be delivered up for cancellation, on the contention that it was procured by fraud practiced by Mr. Blair, in conjunction with Messrs. Chase, Mackey and Long, who are also made co-defendants and were respectively the president, secretary and treasurer of the company.</p> <p>It seems that at the time the mortgage was given Messrs. Chase, Mackey and Long in their individual capacities gave to Mr. Blair their joint note for the same $20,000 represented by the mortgage. It also appears that, at the time, they issued to themselves' 200 shares of the capital stock of the company, said shares being of the par value of $100 each, and assigned the same to Mr. Blair as collateral security for the payment of the note. Divested of hard words, the allegation in the bill is, substantially, that the $20,000 was loaned, not to the company, but to Messrs. Chase, Mackey and Long, to enable them to pay for the shares of stock just mentioned; that these gentlemen turned the money over to the company in payment for the stock, and that the mortgage was given by them as the officers of the company, without lawful authority, as collateral security for the payment of their private debt. This is important, if true; but is it true ?</p> <p>The only witnesses examined as to the transaction were the four gentlemen above mentioned, who all testified positively that the money was loaned to the company, and that the note was given merely as collateral security. Against this, Mr. Frisbie, one of the plaintiffs, testifies that Messrs. Chase, Mackey and Long all told him that they “ had subscribed for $20,000 of the stock, and had borrowed the money to pay for it from Mr. Blair.” Admitting, for the sake of the argument, that there is no possibility of mistake on Mr. Frisbie’s part, and laying aside his interest, the utmost effect of his testimony would be to cast discredit upon the testimony of the three gentlemen named, which would still leave the mortgage, and the undisputed fact that the company received and appropriated to its own use the whole of the $20,000, to speak for themselves. The same is true of the attempt to show that Mr. Mackey’s testimony does not correspond with his testimony on another occasion.</p> <p>There is little else in the plaintiff’s evidence calling even for passing notice. The plaintiffs have no right to complain that Mr. Blair did not record his mortgage for several years, and that he desired to keep its existence a secret, as all the evidence shows that that was done to favor the company, to enable it to dispose of its stock. That Mr. Blair endeavored to collect the note from the makers, without first foreclosing the mortgage, throws no light upon the question as to whether the loan was to the makers of the note or to the company, for in either event he would have had a right to do as he did. Nor can we see how it is of the slightest importance that the dividends on the 200 shares of stock were paid to Messrs. Chase, Mackey and Long. Upon the foregoing state of the proofs, the master was asked to find directly that the $20,000 loan was made to Messrs. Chase, Mackey and Long, and indirectly that these three gentlemen with Mr. Blair had conspired together to defraud the Bangor Union Slate Co. The learned master did well in refusing to respond to a request so unreasonable.</p> <p>But one question remains. It is claimed by the learned counsel for the plaintiffs that the mortgage is void because given in violation of article XYI. section 7, of the constitution, which provides that “ the stock and indebtedness of corporations shall not be increased.....without the consent of the persons holding the larger amount in value of the stock, first obtained at a meeting to be held after sixty days notice.” If this be true, it may be that the plaintiffs would be entitled to relief under the present bill, on the theory that the mortgage is a cloud upon title, but we do not feel called upon to decide that question, as we are clearly of the opinion that the clause in the constitution above referred to has no application. True, here there was no previous meeting of the stockholders, but was the indebtedness of the corporation increased by the transaction under consideration ? The learned master thought not and we agree with him.</p> <p>In Ahl v. Rhoads, 84 Pa. 819, it is held that where a bank, without the consent of its stockholders, executes a mortgage upon its property to secure the debt of a creditor, the execution of such a mortgage is not an increase of indebtedness within the meaning of the constitution, which prohibits any increase of indebtedness by a corporation without the consent of a majority of its stockholders given at a meeting called for that purpose. The ground of that decision is, that the mortgage was given as “ security for an indebtedness that had already legitimately accrued,” and that therefore “ there was nothing in the transaction that could properly be described as the creation or increase of a debt.” We cannot see wherein Ahl v. Rhoads differs in principle from the case in hand. True, in the former case the mortgage was given immediately to the credit- or, but the effect in both cases was the same, the securing of an existing debt. It is a great mistake to say that Ahl v. Rhoads turns solely on the fact that the bank in that case had been chartered prior to the new constitution. I have examined carefully the authorities cited for the plaintiffs, but find nothing calling for comment. My labors have been much lightened by the very intelligent report of the learned master, who has discharged his duties with great satisfaction to the court. The costs were properly placed on the plaintiffs.</p> <p>1889, December 30. Exceptions overruled and bill dismissed.</p> <p>—Thereupon the plaintiffs took this appeal specifying the overruling of their several exceptions and the- dismissal of their bill for error.</p>

<p>No. 263 January Term 1890, Sup. Ct.; court below, No. 372 February Term 1884, C. P.</p> <p>On April 4, 1889, a scire facias to revive, with notice to John W. Bossert, was issued upon a judgment for $1,000 entered originally on April 5, 1884, in favor of Mary A. Garis, wife of John Garis, against Hiram B. Fish, and subsequently assigned to Charles Fetherman. The judgment had been confessed upon the note of Hiram B. Fish to Mary A. Garis dated March 81, 1884.</p> <p>Mr. Fetherman, the use plaintiff, filed a statement of claim which set out the records of a deed from William Chapman and wife to H. B. Fish, for a certain tract of land, dated December 28, 1876, for an alleged consideration of $8,518.06, subject to a dower of $2,280.60; a deed from H. B. Fish and Mary R. M., his wife, to Elizabeth M. Mulhollan, for the same land, dated September 20, 1878, for an alleged consideration of $7,277.07, subject to said dower; a deed from Elizabeth M. Mulhollan to Mary R. M. Fish for the same land, dated February 28,1884, for the alleged consideration of $7,500; a deed from Mary R. M. Fish, and H. B. Fish, her husband, to John W. Bossert, for the same land, dated April 4, 1887, for an alleged consideration of $6,100 ; also the entry of the above recited judgment against H. B. Fish, and its assignment to Fetherman. The statement of claim averred further :</p> <p>“ 7. That your affiant is informed and believes, that at no time after the title was in said Elizabeth M. Mulhollan, nor while it was in said Mary R. M. Fish, did they or either of them, take and hold the possession of said premises, but the said H. B. Fish by tenants under him took and received the rents, issues and profits thereof, and so continued to have the possession up to and at the time of the granting of the same to said John W. Bossert.</p> <p>“ 8. That your affiant is advised and believes, that the said H. B. Fish made and concluded the sale of said premises with the said John W. Bossert, and that whatever consideration money was paid by said Bossert, was not paid by him to the said Mary R. M. Fish, but to the said H. B. Fish, in whom there was a legal ownership of said premises, notwithstanding the granting of the title to the said Elizabeth M. Mulhollan, and by her to the said Mary R. M. Fish, and so was in him at the time of the entry of said judgment, to which the lien of said judgment did then and there attach in the premises aforesaid, and bjr the issuing of said scire facias the lien of said judgment has been continued upon said premises.”</p> <p>The terre-tenant, John W. Bossert, filed an affidavit of defence in which he averred that the consideration for the deed from Chapman and wife to Fish, was made up of the dower charge ; of a loan of $2,600, by Mary R. M. Fish to her husband, out of fier separate estate; of a loan of $1,800 to Fish by his mother-in-law, Elizabeth M. Mulhollan, and of a balance of $1,988.86, as to the security for which affiant had no knowledge; that the consideration for the deed from Fish and wife to Elizabeth M. Mulhollan was made up of the said dower charge, the two loans above mentioned and of a balance paid by Mrs. Mulhollan to Fish; that the consideration for the deed from Mrs. Mulhollan to Mary R. M. Fish, was made up of the said dower charge, the said loan of $2,600, with interest and a balance of $1,800, secured by a mortgage given by Fish and his wife to Mrs. Mulhollan, and that the consideration for the deed from Fish and wife to the affiant Bossert, was made up of the said dower charge, and a balance of $3,819.10 which was paid to the said Mary R. M. Fish. The affidavit then proceeded:</p> <p>“ 5. That this affiant has no personal knowledge of the matters alleged in the seventh paragraph of plaintiff’s affidavit of claim, but to the best of his information and belief, if the said H. B. Fish received the rents, issues and profits of said premises, this affiant avers that he received the same as agent of said Elizabeth M. Mulhollan and Mary R. M. Fish, his wife, who had the legal title and ownership of said premises after the conveyance to them respectively.”</p> <p>“ 7. To the best of my knowledge and information, I deny, as stated in paragraph eight of plaintiff’s affidavit of claim, that the said H. B. Fish made and conducted the sale of the premises therein mentioned with me, the said John W. Bossert, but that the said sale was made and conducted by John Mc-Ilhaney, Esq., as agent of the said Mary R. M. Fish. And I further aver that, to the best of my knowledge, information and belief, the consideration money mentioned in said deed of Mary R. M. Fish and H. B. Fish, her husband, to me, less the dower money, $2,280.60, was not paid to said H. B. Fish, but the same was inclosed in an envelope by the said John Mc-Ilhaney, Esq., directed to said Mary R. M. Fish, and sent to her by a messenger. And I do further aver, to the best of my knowledge, information and belief, that the said H. B. Fish at no time, either after conveyance of said premises by him to the said Elizabeth M. Mulhollan by deed dated September 20, 1878, or after conveyance of said premises by the said Elizabeth M. Mulhollan to the said Mary R. M. FísÍl, wife of said H. B. Fish, by deed dated February 28, 1884, or at the time the said Mary R. M. Fish and H. B. Fish, her husband, by deed dated April 4, 1887, granted and conveyed said premises to me and my heirs and assigns, had any interest, title or estate in said premises, or had any legal ownership therein, and that the said judgment of Mrs. John Garis, to the use of Charles Fetherman, against said H. B. Fish in the Court of Common Pleas of Northampton County, No. 372 February Term 1884, at the time of the entry thereof on the record on the fifth day of April, 1884, or at any time thereafter, never was or became a lien on the said premises so as aforesaid conveyed to me, and the said judgment did not at the time of the entry thereof nor afterward attach as a lien to said premises.”</p> <p>—A rule for judgment for want of a sufficient affidavit of defence, after argument thereof, was discharged, Schuyler, P. J., when the use plaintiff took this appeal assigning the discharge of said rule for error.</p>

No. 282 January Term 1890, Sup. Ot.; court below, No. 1 January Term 1888, C. P. in Equity.

No. 53 January Term 1890, Sup. Ct.; court below, No. 164 March Term 1889, C. P. No. 3.

No. 444 January Term 1889, Sup. Ct.; court below, No. 29 December Term 1888, C. P. On March 8, 1886, on application of the sheriff of Montgomery county, setting forth that certain chattels, levied on as the property of the Aronia Fabric Company, at the suit of Herman Dienelt and George F. Eisenhardt, trading as Dienelt & Eisenhardt, had been claimed by the Montgomery Web Company, the court granted a rule for an interpleader under the act of April 10, 1848, P. L. 450.

<p>1. Where, on the hearing of a proceeding in equity before a master, testimony is offered in rebuttal by either party which is not properly in answer to new matter introduced by the opposite party, but is merely cumulative upon the case in chief of the one offering it, the admission of such testimony by the master is erroneous.</p> <p>2. Though a nuisance, threatening private damage that is imminent and irreparable or is not capable of adequate compensation in money, may be enjoined in equity without first establishing the right at law, yet a final injunction for that purpose will be granted only when the right is clear and the facts upon which it rests uncontested •. Rhea v. Forsyth, 37 Pa. 503; New Castle v. Raney, 130 Pa. 516.</p> <p>3. The fact that, in an action at law brought by the plaintiff to recover damages for a nuisance alleged the jury on trial thereof failed to agree, is conclusive evidence that the ease is too doubtful for original relief in equity; such fact being shown before the master, in a proceeding to enjoin the continuance of the same nuisance, it should at once terminate the proceeding.</p> <p>(a) The plaintiff erected upon his town lot a building with a cellar under it, knowing that the soil was spongy, and that upon the adjoining lot of defendant was a race-way the water from which passed to plaintiff’s cellar when he was building, but, notwithstanding the fact, he proceeded without using precautions which would have afforded protection:</p> <p>4. Before the erection of the plaintiff’s building,, the defendant, having erected buildings upon his lot without cellars and with cross-walls from the wall of the race-way to the plaintiff’s line, constructed in a regular and proper manner, tlie plaintiff could not sustain a bill for a decree requiring the defendant so to re-construct his buildings that the water would not pass to the plaintiff's premises.</p>

Nos. 95 July Term 1887 and 356 January Term 1889, Sup. Ct.; court below, No. 761 December Term 1875, C. P. On November 23, 1875, Benjamin P. Belim, Martha Harding and Geo.

No. 130 July Term 1889, Sup. Ct.; court below, No. 365 October Term 1886, C. P. On July 29, 1886, John T. Everhart and Edward Dolph brought ejectment against Frank Dolph and Frank Irving for 120 acres and 146 perches of land in Spring Brook township, Lackawanna county, formerly a part of Luzerne county.

No. 304 January Term 1890, Sup. Ct.; court below, No. 482 Equity D. 1889, C. P. On October 7, 1889, Daniel Shaaber filed a bill in equity against the city of Reading, averring that in 1878 the plaintiff erected a large building on ground leased by him from the Philadelphia and Reading Railroad Company, and had since occupied and used the same for business purposes; that said building was situated wholly or in part within the lines of Fifth street as laid down upon the…