Volume 141 — Pennsylvania State Reports

<p>APPEAL BY DEPENDANT FROM THE COURT OF COMMON PLEAS OF WAYNE COUNTY.</p> <p>January Term 1891, Sup. Ct.; court below, No. 122 March Term 1890, C. P.</p> <p>On April 14,1890, S. A. Kelly brought assumpsit against the Sun Fire Office, upon a policy issued by the defendant association insuring a building of the plaintiff against fire, dated April 5, 1887. The defendant pleaded non-assumpsit.</p> <p>The policy contained the following provisions:</p> <p>“ 1. Persons sustaining loss or damage by fire shall forthwith give notice of said loss in writing to the society, and as soon thereafter as possible render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property, giving copies of the written poi'tions of all policies thereon ; also, the actual cash value of the property and their interest therein, for what purpose and by whom the building insured or containing the property insured, and the several parts thereof, was used at the time of the loss; when and how the fire originated; and shall also produce a certificate, under the hand and seal of a magistrate or notary public nearest to tbe place of the fire, not concerned in the loss as a creditor or otherwise, nor related to the insured, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the insured, and verily believes that the insured has, without fraud or evil practice, sustained loss on the property insured, to the amount which such magistrate or notary shall certify.” . . . .</p> <p>“ 3. If the loss sustained be upon a building, fixtures or machinery, the insured shall, if required, furnish duly verified plans and specifications of such property destroyed or damaged.....If the claim be for building, machinery, and fixtures destroyed by fire, the insured shall procure the duly verified certificate of some reliable and responsible builder, and also of a reliable and responsible engineer, and also of a carpenter or other competent person, which certificate shall give in detail the actual cash value of such building, machinery and fixtures immediately before said fire, and said certificate shall be attached to and form a part of the proofs.</p> <p>“ 4.1. . It shall be optional with the society to take the whole or any part of the articles at their appraised value, and also to repair, rebuild, or replace the property lost or damaged with other of the like kind and quality within a reasonable time, giving notice of its intention so to do within thirty days after completion of the proofs herein required.”</p> <p>“ 11. Loss money will be payable at the expiration of sixty days from the date of the adjustment of a claim, unless the society shall have replaced the property damaged or destroyed, or have given notice of its intention to rebuild or repair the damaged premises.”</p> <p>At the trial, on December 13,1890, the following facts were shown:</p> <p>The building insured by the policy in suit was destroyed by fire on October 26, 1889. On December 2 or 3, 1889, proofs of loss were furnished to J. H. Fellows, the defendant’s adjuster. They were accompanied by a certificate in the form prescribed by the policy, executed by Robert Smith, a notary public. Mi\ Smith was the nearest notary public to the place of the fire, but he resided at a distance of ten miles therefrom, and there was a justice of the peace whose residence was only about half a mile away. Whether any itemized statement from a carpenter and builder, as to the cash value of the building, was attached to the proofs when originally sent in, was a matter of dispute upon the testimony.</p> <p>The plaintiff testified that he was requested to perfect the proofs by getting a certificate from Stewart O. Lincoln, the nearest magistrate, and that he did so. He did not give the date he received this request. The date of the certificate procured from Lincoln was January 30,1890. Fellows testified, for the defendant, that the witness returned the proofs to the plaintiff on December 5, 1889, with objections, and received them back about February 1st, with magistrate Lincoln’s cer- ■ tificate and the itemized statement of the carpenter and builder attached. Charles A. McCarty, the defendant’s local agent, after stating that the witness wrote the certificate signed by magistrate Lincoln on January 30, 1890, testified in rebuttal for the plaintiff as follows: “ Q. How long, in your opinion, was it, that this paper came back to you before this affidavit was made which is signed by Stewart Lincoln ? A. It was made very soon after I got it. I don’t remember just when I got it. Q. Do you think these papers came back to you, or to Mr. Kelly? A. I don’t remember exactly. Q. You don’t recollect whether they were returned to you or him ? A. No, sir.”</p> <p>On February 28, 1890, A. D. Lundy, the defendant’s state agent, wrote to the plaintiff, giving him notice of the company’s intention to rebuild in accordance with the option so to do given it by the policy, and asking that the plaintiff furnish plans and specifications of the building. On March 19, 1890, such plans and specifications were furnished by the plaintiff, and were transmitted to the state agent accompanied by a letter from the plaintiff’s attorney as follows:</p> <p>“ Dear Sir: In yours' of February 28th, to Dr. S. A. Kelly, you ask for plans and specifications of Dr. Kelly’s building which was destroyed by fire October 26, 1889. You say you intend to replace the property. We send herewith the plans and specifications of the building, but deny your right, at this late day, to rebuild the property; and, in sending these plans and specifications, it is to be distinctly understood that Dr. Kelly waives no right that he would otherwise have with reference to his claim, or to the enforcement of its collection. And if this claim is not paid forthwith, suit will be brought for its recovery.”</p> <p>At the close of the testimony, the court, Seelt, P. J., instructed the jury in part as follows :</p> <p>Now, having looked at these conditions of the policy, the question comes, what was done ? I have not the dates of these papers that have been given in evidence, but somewhere about the end of December proofs of loss were furnished. These proofs of loss are in evidence here ; they were furnished to the company and were returned to the insured with the statement that they were defective in not containing a certificate of the magistrate nearest to the place of the fire, as required by the policy, and also requiring the insured to furnish a detailed statement of the expense of reconstructing the building.</p> <p>If they had the option to rebuild it, certainly it was right and proper that they should require a statement, detailed statement, of the expense of reconstructing this building; because, until they had that, it was impossible for them to exercise this option. [So far as the certificate of the magistrate is concerned, we are inclined, gentlemen, to relieve you of all consideration of that question. We think, in the case that has been presented to us here, in 109 Pa., the Supreme Court have intended to say — we understand them to say — that no insurance company has the right to require the production of such a certificate from a magistrate or a notary public. We hope they have meant to say this; for, although this in former years was held to be a condition precedent to recovery, it required sometimes of an insured that which was impossible for him to render, and no insurance company has any power over a magistrate or notary public to require him to render such certificate. We think, so far as that certificate is concerned, that the proof's of loss were sufficient.] 3</p> <p>Now, the question which seems to us to be the turning question in this case, is with reference to the dates when these proofs of loss were returned by the company to the insured for correction, and when he returned them corrected to the company. The company, if they desire to exercise their right of option here, must proceed with diligence, promptly; must not allow unnecessary delays; and the insured, when called upon to act, must act with promptness, and cannot complain if he is the cause of delay. The evidence of Mr. Lundy, refreshing his recollection from his memorandum book, that these proofs of loss were returned on the fifth day of December to Honesdale, with the request for this certificate of the magistrate and this particular itemized statement with reference to the cost of erecting the building, is that the amended proofs of loss were returned to the company on the thirtieth day of January, I think it was. Now, if that be true, there was mr negligence on the part of the company at that time; because,, if they received the proofs of loss on the second of December and returned them on the fifth for correction, they returned them certainly with great promptness. If the insured received them on the fifth of December, and then neglected to comply with the request and return the proofs of loss corrected until the end of January, he cannot complain if he is accused of' some lack of diligence in this matter. We think, gentlemen, if that statement of the defendant is true, if you believe that these proofs of loss were returned to the insured on the fifth day of December for correction, and the delay from that time was by reason of the plaintiff’s want of care and diligence, then we think, under this policy, the defendants would have thirty days from the time of the return to them of the amended proofs of loss, in which to exercise their option to rebuild. It seems that within thirty days from that time they did exercise that option, and notified the plaintiff that they would rebuild that property, restore it.....</p> <p>What we desire to say is this: That if the delay was the delay of the company; if they withheld these proofs of loss without complaint unreasonably, and so delayed this matter, putting the plaintiff to inconvenience and expense, they might be cut off from the right to exercise the option afterwards by reason of such negligence. The policy gives them the right to exercise that option within thirty days after the completion of the proofs required. If, on the other hand, the delay was that of the plaintiff, if the proofs of loss were returned on the fifth of December, as it is alleged, and he withheld them, did not return them perfected, as he was required to do, to the defendants, until way on at the close of January, then there was nothing to cut off the defendant from the exercise of that option; then they had thirty days from the time when the plaintiff complied with the requirements of the policy to furnish the proofs of loss, in which to exercise that option, and they did exercise it within thirty days after the time when these additional proofs were furnished.</p> <p>It seems to me the case turns right there. [If you find, under the terms of this policy, with the instructions we have given you as to the rights of the parties, that the company had not lost this right of option by its negligence, then, having notified the plaintiff of their determination to rebuild, they could not be held liable upon this policy; they could be required to rebuild, but not in this proceeding, and your verdict would necessarily be for the defendant. But, if by their negligence and delay you find that they have lost their right of option, then they would be liable upon this policy, for such sum, not exceeding the amount named in the policy, as would compensate the plaintiff for the loss sustained by the destruction of the building.] 3</p> <p>The defendant asks the court to charge you:</p> <p>1. That, under the undisputed facts in the case, the verdict must be for the defendants.</p> <p>Answer: We decline that, because we think that this fact that we submit to you is one that must go to the jury. You have the evidence of Mr. Lundy, the evidence of Mr. McCarty, the evidence of Dr. Kelly, — I think they are the three witnesses bearing on the fact, and Mr. Fellows, and the evidence as it stands we think forbids that the court should pass upon that question, and for that reason we must submit the question to you. Take the case, gentlemen, and dispose of it according to the evidence.1</p> <p>—The jury returned a verdict for the plaintiff for $1,874.70. Judgment having been entered, the defendant took this appeal, assigning for error :</p> <p>1. The answer to defendant’s point.1</p> <p>2, 3. The parts of the charge embraced in [ ] 3 3</p> <p>1. If the defendant had the right to replace the building, and properly gave notice of its intention to do so, this judgment must be reversed. The stipulation in the policy giving it that right is valid and binding: Flanders on Insurance, 630; Wood on Insurance, 253; Commonwealth Ins. Co. v. Sennett, 37 Pa. 205. Upon the undisputed testimony, the notice was given within thirty days after the proofs of loss were completed, and there was nothing to submit to the jury. The testimony of Fellows that the proofs were returned for correction on December 5, 1889, within two or three days after they were received by the defendant, is uncontradicted. It is undisputed that the parties negotiated between themselves, in regard to certificates to complete the proofs, subsequent to December 2 or 3, 1889, and that the plaintiff actually furnished perfected proofs on January 30, 1890. Having so acted, he is estopped from saying that his proofs were complete on December 3d, and that his subsequent acts were intended only to throw the defendant off its guard.</p> <p>2. In submitting the question of laches to the jury, the court instructed them to disregard the question of the magistrate’s certificate, as the clause in the policy on that subject was null and void. Such clauses have been sustained and held to be binding by most respectable text writers, and by the courts of England and of our own country: Worsley v. Wood, 6 T. JEt. 710; 2 Phillips on Insurance, 472; Flanders on Insurance, 586 ; Wood on Insurance, 710 ; Columbia Ins. Co. v. Lawrence, 2 Pet. 25; s. c. 10 Pet. 507; Gilligan v. Insurance Co., 87 N. Y. 626; Johnson v. Insurance Co., 112 Mass. 49; Daniels v. Insurance Co., 50 Conn. 551; Williams v. Insurance Co., 19 Ins. Law J. 26; Commonwealth Ins. Co. v. Sennett, 41 Pa. 161; Mueller v. Insurance Co., 87 Pa. 399. See, also, Monongahela Nav. Co. v. Fenlon, 4 W. & S. 205. We are aware of what was said to the contrary in Universal F. Ins. Co. v. Block, 109 Pa. 535, and Davis Shoe Co. v. Insurance Co., 138 Pa. 73. Each of those cases, however, was decided upon the point that the insurance company had waived any objection to defects in the proofs, and the remarks respecting the validity of the clause in question were-dicta.</p> <p>The destruction of the building being total, no detailed proofs of loss were necessary: Lycoming Ins. Co. v. Schollenberger, 44 Pa. 259; Farmers’ Ins. Co. v. Moyer, 97 Pa. 441; Home Ins. Co. v. Davis, 98 Pa. 280; American Ins. Co. v. Haws, 20 W. N 370; German Am. Ins. Co. v. Hocking, 115 Pa. 398. If they were requisite, the original proofs furnished in the present case were sufficient. Substantial compliance with the requirements of the policy on this subject is all that will be exacted: Northwestern Ins. Co. v. Atkins, 3 Bush 328 (96 Am. Dec. 239). The policy leaves it optional with the assured whether he shall obtain the certificate of a magistrate or of a notary public, and he did obtain that of the nearest notary. However, that particular clause of the policy is not binding on the assured: Universal Ins. Co. v. Block, 109 Pa. 535; Davis Shoe Co. v. Insurance Co., 138 Pa. 73.</p> <p>2. It seems too clear for argument that the clause relating to the certificate of a carpenter and builder was intended to apply to buildings containing machinery, such as machine shops, mills, etc., and if it is susceptible of two constructions, that most favorable to the assured must be adopted: Teutonia Ins. Co. v. Mund, 102 Pa. 89; Burkhard v. Insurance Co., 102 Pa. 262. However, it was a question for the jury whether a sufficient certificate was not furnished with the original proofs. If this view of the case is sustained, it is immaterial whether or not there was evidence of laches on the part of the company in returning the proofs. But there was sufficient in the testimony of McCarty that he returned the certificate of the justice, dated January 30th, soon after getting the proofs back, to justify leaving the question whether the proofs were returned by the company on December 5th, or not until nearly January 30th. Facts and the credibility of witnesses are for the jury: Patterson v. Dushane, 115 Pa. 384; Cover v. Manaway, 115 Pa. 338; Grambs v. Lynch, 4 Penny. 243.</p> <p>8. Even if the date of furnishing complete proofs was January 30th, as the defendant contends, it does not follow that this action cannot be maintained. The question of the bona lides of the company in giving the notice of intention to rebuild, as evidenced by their subsequent conduct, still remains; as also the question whether the company did not forfeit the right to rebuild by not making any move, preliminary or otherwise, towards rebuilding, from the time of giving the notice until after service of the summons, a period of about two months. Such right, if not exercised in the mode prescribed in the policy, is lost: Wood on Insurance, 822. This policy allows its exercise “ within a reasonable time; ” what is such, was for the jury. We have found no case where the policy was changed to a building contract, except when the company had entered upon the work of rebuilding, or had been prevénted from doing so by the assured: See Flanders on Insurance, 628; Wood on Insurance, 327; Morrell v. Insurance Co., 33 N. Y. 429 (88 Am. Dec. 396) ; Haskins v. Insurance Co., 5 Gray 432.</p>

<p>APPEAL BY THE COMMONWEALTH FROM THE COURT OF QUARTER SESSIONS OF LACKAWANNA COUNTY.</p> <p>January Term 1891, Sup. Ct.; court below, No. 98 June Term 1890, Q. S.</p> <p>On May 27, 1890, the grand jury returned as a true bill an indictment charging Joseph Lloyd with fornication and bastardy, on the information of Jemima Davis.</p> <p>On October 13, 1890, the defendant filed a plea, averring that the commonwealth ought not further to prosecute the said indictment, for that on April 23, 1890, at a Court of Quarter Sessions held at Wilkes-Barre, in the county of Luzerne, the defendant was called upon and pleaded to an indictment charging him with committing fornication with said Jemima Davis and with begetting a female child upon her body; that he was thereupon tried and found guilty of fornication, but not guilty of bastardy, and was thereupon sentenced, .etc.; exhibiting the record of the said indictment and conviction, and averring the identity of the parties and of the offence, etc., etc., but admitting that, though the said female child was begotten in Luzerne county, it was born in Lackawanna county. To-this plea the commonwealth replied that it was true that the said defendant was indicted, tried, and convicted as alleged in Luzerne county; but, the said female child being begotten in said Luzerne county but born in Lackawanna county, the Court of Quarter Sessions of Luzerne county had no jurisdiction to try the defendant ón the charge of fornication and bastardy and the proceedings in said court exhibited were of no effect and void, etc., etc. — Issue.</p> <p>On February 7, 1891, the cause having been submitted on the pleadings, and argued, the court entered judgment for the defendant and against the commonwealth, and discharged the defendant from the indictment. Thereupon, the commonwealth took this appeal, assigning the order entering judgment for the defendant on the pleadings, for error.</p> <p>Counsel cited: Section 88, act of March 81,1860, P. L. 893; § 6, act of September 23, 1791, 3 Sm. L. 41; Duncan v. Commonwealth, 4 S. & II. 448; Commonwealth v. Lehr, 2 Pa. C. C. R. 341; Heikes v. Commonwealth, 26 Pa. 513.</p> <p>Counsel cited: Clarke v. Mathewson, 12 Pet. 164; Windsor v. McVeigh, 93 U. S. 274; § 48, act of March 31, 1860, P. L. 395.</p>

<p>[To be reported.]</p> <p>1. When, upon the challenge of a juror for cause, the court sits in the platee of triers, to determine the question of impartiality as a matter of ■ fact, its determination thereof is conclusive and cannot be reviewed by the Supreme Court; although, when Hie juror’s position is such that his incompetency is a conclusion of law, the rule is different.</p> <p>2. A juror having testified upon his voir dire that he was on intimate terms with one of the defendants who was his customer, and that said defendant had talked with him on several occasions about the ease, giving him statements of facts and explanations in regard to it, a challenge for cause should have been sustained: Per Mr. Justice Williams.</p> <p>(a) A court rule provided that the plaintiff’s bill of particulars should contain a full, direct and concise statement of his cause of action, and that evidence of facts outside of it should not be received. H. and S. were sued for a conspiracy to defraud by means of false reports, made by H., plaintiff’s employee, of the amounts of iron purchased from S. at one of plaintiff’s mills:</p> <p>3. The court rule did not render inadmissible evidence of the commission of similar frauds by S., at another mill of plaintiff, in which II. was not concerned and which were not mentioned in the bill of particulars, the testimony being offered solely to show guilty knowledge by S. of the return of excessive weights of his iron, and to contradict a denial thereof by him.</p> <p>4. In an action for a conspiracy to defraud, it is error for the court to call the attention of the jury to the fact that, if a verdict and judgment should be given for the plaintiff, the defendants will not be entitled to the benefit of the exemption laws and will be liable to arrest on a capias ad satisfaciendum.</p> <p>o. It is error, also, to charge that, before finding against the defendants, the jury ought to be satisfied of their guilt by “ clear and full evidence,” and that the circumstances ought to be such as are inconsistent with the theory of innocence, even though the court add that the jury need not be satisfied beyond a reasonable doubt.</p>

January Term 1891, Sup. Ct.; court below, No. 819 October Term 1888, C. P. On September 22, 1888, Sarah Doud brought assumpsit upon a policy of insurance, against the Citizens Insurance Company of Pittsburgh. The defendant pleaded non-assumpsit.

<p>(a) Claimants, on distribution, of the assets of an iron company in the hands of a receiver, bad loaned their accommodation notes to the company, taking a mortgage for the amount of the notes as collateral security. They had not been obliged to pay the notes, or any part thereof:</p> <p>1. The auditor finding that evidence submitted to establish a contract for compensation to the claimants for such loan of their credit was insufficient, and his finding thereon being approved by the court, the decree was affirmed and the appeal therefrom dismissed.</p>

January Term 1891, Sup. Ct.; court below, No. 75 December Term 1889, C. P. On December 10, 1889, George L. Smith filed liis petition for the appointment of viewers to assess damages to his land in Union township, arising from the construction of the defendant company’s railroad.

January Term 1891, Sup. Ct.; court below, Nos. 8 November Term 1885,106 June Term 1887, C. P. On November 12, 1885, judgment was entered in the court below in favor of J. C. Yost & Co., and against A. B. Mensch and Jacob G. Mensch, upon a judgment note signed by the defendants, dated November 1Ó, 1885, for $1,000, payable six years after date, with interest half-yearly.

<p>APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS OP BERKS COTJNTy.</p> <p>January Term 1891, Sup. Ct.; court below, No. 3 October Term 1888, C. P.</p> <p>On September 6,1888, Charles Breneiser, Jr., brought eject* ment against Charles H. Davis. Issue.</p> <p>At a trial on May 16, 1889, the jury returned a verdict fox the defendant. On appeal to the Supreme Court, the judgment entered on the verdict was reversed, on March 31,1890, and a venire de novo awarded: Breneiser v. Davis, 134 Pa. 1.</p> <p>At the second trial, on January 13,1891, both parties claiming under the same source of title, the will of Andrew Davis, deceased, and letters thereon to George D. Stitzel, executor, the plaintiff rested, after putting the will in evidence, with deed from George D. Stitzel, executor thereof, to the plaintiff, dated March 27, 1885, and showing possession of the strip of land in dispute, by the defendant.</p> <p>In his case in chief, the defendant called George D. Stitzel, executor of Andrew Davis, deceased :</p> <p>Q. What did you mean to sell as property 140 ?</p> <p>Mr. Hiester : The plaintiff objects.</p> <p>By the court: The objection is sustained. It would be incompetent to show what he intended to do ; he can only state facts; the jury must draw the inference from the facts ; exception.1</p> <p>Q. What was included in property 140 as you offered it for sale ?</p> <p>Mr. Hiester: The plaintiff objects; the advertisement will show what was included.</p> <p>By the court: We will sustain that objection; exception.8</p> <p>Q. You sold according to the draft ?</p> <p>Mr. Hiester: The plaintiff objects, if it is intended to elicit from the witness an expression of his intention and not the contract of the parties.</p> <p>Q. State whether or not you sold according to that draft that is there ?</p> <p>Mr. Hiester: The plaintiff objects for the same reason.</p> <p>By the court: The objection is sustained; exception.3</p> <p>Q. What was the draft there for at the sale ?</p> <p>Mr. Hiester: The plaintiff objects, that it is calling upon the witness to express his unexpressed idea.- The plaintiff does not object to anything that was said concerning the draft at the sale.</p> <p>, By the court: We have already ruled that the unexpressed intention of the parties cannot be given. Anything that was said or done at that sale may be shown; exception.4</p> <p>Q. For what purpose was the draft there ?</p> <p>Objected to.</p> <p>Mr. Bland : To be followed with evidence that the plaintiff knew personally, and by his father, his agent, read the advertisement in the paper notifying them that the draft would be in the hands of the attorney, Mr. Stevens, and at the sale for the inspection of bidders.</p> <p>By the court: The objection is sustained; exception.3</p> <p>Charles Breneiser, Sr., called for defendant:</p> <p>Q. When you bid at that sale, did you expect to get anything that was not enclosed within the fence ?</p> <p>Mr. Hiester: The plaintiff objocts, that his rights to the property conveyed to him by the deed are not to be limited by any expectations of the witness.</p> <p>By the court: Objection sustained; exception.6</p> <p>Q. When you left the property 140, and when you went to the sale at the Keystone House, you thought you were buying what was enclosed within the fence, did you not ?</p> <p>Mr. Hiester: The plaintiff objects, that the inquiry is immaterial ; the rights of the plaintiff in his deed cannot be modified by what the witness thought he was buying.</p> <p>By the court: This question has already been sufficiently gone into, and we will permit no further inquiry. Objection sustained; exception.7</p> <p>Q. And you say you thought the fence was on the line ? A. Yes. Q. And went to the sale with that impression ?</p> <p>Objected to.</p> <p>By the court: The counsel have asked this question again and again in different shapes and forms, and there must be an end to the examination; exception.8</p> <p>Q. Did you, after you bought this property, go to Judge Stitzel and say, “ Here, Judge, I have not got the property I bought ?”</p> <p>Objected to as immaterial.</p> <p>Q. How long did it take you to find out that you did not receive what you bought ?</p> <p>Mr. Hiester: Objected to, because the plaintiff has twenty-one years to find out that he is outside of property that belongs to him.</p> <p>By the court: We will allow this question; exception for the plaintiff.</p> <p>Mr. Ruhl: The plaintiff further objects that the witness is not the plaintiff in this case and he received no deed.</p> <p>By the court: With this addition, we will sustain the objection ; exception for the defendant.9</p> <p>Charles Breneiser, Jr., recalled:</p> <p>Q You say, two years afterwards you discovered you .did not have what you bought? A. A year and one half or two years. Q. Did you then go to Judge Stitzel, and tell him you did not have all your land ?</p> <p>Mr. Ruhl: The plaintiff objects, that it is immaterial.</p> <p>By the court: Objection sustained; exception.10</p> <p>Q. You never made complaint to Judge Stitzel that he did not give you possession of all your land ?</p> <p>Mr. Ruhl: Objected to, that it is immaterial.</p> <p>Mr. Bland: This for the purpose of proving that the witness, the plaintiff, received into possession what he thought and believed he was buying at the time of the sale, it having been shown that what he thought and believed he was then buying was the same which Judge Stitzel meant to sell to him; this, taken in connection with the mutual mistake, shown to have been made by the parties through an error of the scrivener in drawing the title deeds, presenting a case which, under the law, will justify the reformation of the deed.</p> <p>Mr. Ruhl: Objected to, that it assumes a matter which has not been proven, namely, that there had been a mutual mistake; all the evidence shows the contrary.</p> <p>By the court: Objection sustained; exception.11</p> <p>George D. Stitzel, executor, recalled:</p> <p>Q. The advertisement, the description of the property, and the description of the deed, do not agree with the lines of that lot marked off on the draft and with the fence ? A. It appears not. Q. How does it come that the description in the deed does not agree with the draft by which you sold ?</p> <p>Mr. Hiester: The plaintiff objects to the inquiry as immaterial ; it must be confined to acts and declarations.</p> <p>By the court: Q. Is that your own writing? A. No, it is not; I do not know how the description got to be in that way; I could not answer that.</p> <p>By Mr. Bland: Q. State whether or not it was right or wrong ?</p> <p>By the court: That is not the question.</p> <p>Mr. Bland: That is my question, and I want your honor to rule upon it.</p> <p>Mr. Hiester: The plaintiff objects to the witness testifying whether he described the property as he intended to, or whether he described it different from the manner in which he intended to; the plaintiff’s rights are not affected thereby.</p> <p>By the court: Objection sustained; exception.18</p> <p>Q. Who drew the advertisement? A. I think it was prepared in Mr. Stevens’s office. Q. Was the advertisement correct so far as it describes No. 2, the property bought by Mr. Breneiser ?</p> <p>Mr. Hiester: The plaintiff objects for the same reason.</p> <p>By the court: Objection sustained; exception.13</p> <p>By Mr. Bland: Q. Was the description in the deed correct? That is to say, did it correspond with the property you meant to sell to Mr. Breneiser ?</p> <p>Mr. Hiester: The plaintiff objects because the intentions of the witness are immaterial.</p> <p>By the court: Objection sustained; exception.14</p> <p>At the close of the testimony showing the facts sufficiently appearing in Breneiser v. Davis, 1B4 Pa. 1, and indicated in the defendant’s points, infra, the court, Ekmentrout, P. J., charged the jury as follows :</p> <p>When this case was up for trial on a previous occasion, this court made certain rulings and directed a verdict to be entered in favor of the defendant. The Supreme Court, passing in review, reversed this court, and in the opinion filed by them laid down the rules of law, which we are required to follow and which we will briefly state to you now as applicable to this case.</p> <p>In the deed of the plaintiff, the property is described as containing in front, including an alley, 19 feet, 5 inches, and in depth 120 feet. This description of itself, without anything more, would be sufficient to vest the title to the premises in dispute in the plaintiff.</p> <p>Under the will of Andrew Davis, deceased, George D. Stitzel, the executor, had power and authority to sell the whole of the real estate of Andrew Davis, in his discretion, for the best price he could obtain. He had a right to cut up the lots. It was competent for him to make any division as in the exercise of reasonable discretion might seem best for the interests of the estate, and, having advertised, sold and conveyed this particular lot as 19 feet 5 inches in front, including an alley, and 120 feet back, the purchaser, in the absence of anything to restrict his right, would be entitled to hold to that boundary. The Supreme Court also held that the existence of a wooden fence within the lines defining the mode of the present enjoyment of the property, could not limit his right to the line upon which it stood, because it was in the executor’s power to convey to any line he might establish, regardless of the evidence, and that neither the advertisement, the contract of sale, nor the deed called for the fence as the boundary. Mr. Breneiser having signed the conditions of sale, he received his deed with the description herein contained.</p> <p>The defence is that it is founded upon an alleged mistake, and in order to avail the defendant there must be shown mutual mistake of the parties to the Breneiser deed. Davis having bought with notice of Breneiser’s previous purchase, he stands in the same position as Mr. Stitzel; and in order to sustain his case, he must establish his claim by such proof as would justify a chancellor in reforming a deed. In this ease, there is no evidence which, in the judgment of this court, is competent to show any mistake of a mutual nature by the parties to this Breneiser deed. The deed, therefore, stands for what it appears to be on its face.....</p> <p>We therefore direct the jury to find a verdict in favor of the plaintiff for the premises described in the writ.</p> <p>The plaintiff requests the court to charge :</p> <p>1. Under all the evidence in this case, the verdict must be for the plaintiff for the premises described in the writ Answer: Affirmed.16</p> <p>The defendant requests the court to charge:</p> <p>1. If the jury believe, from all the evidence in the case, that Charles Breneiser, Sr., acting as agent for Charles Breneiser, Jr., the plaintiff here, went upon the premises of No. 140. which he purchased for Charles Breneiser, Jr., the plaintiff, from George D. Stitzel, executor of Andrew Davis, before the sale, and examined the premises with a view of buying them for the said Charles Breneiser, Jr., and saw the fence between properties Nos. 138 and 140, and believed it to be the line, and went to the sale believing that the property which he was buying at the sale was included within the line indicated by the fence; and if the jury find that George D. Stitzel, executor of Andrew Davis, intended at said sale to sell to the said Charles Breneiser, Sr., for the plaintiff here, Charles Breneiser, Jr., the lot appurtenant to property No. 140, at the time of the sale included within the said fence, and no more, the minds of the parties agreed upon the same thing; and if the jury further believe that George D. Stitzel subsequently made and executed a deed which, by an error of the scrivener, described the lot No. 140 as containing more land than was included at the time of the sale within the line indicated by the fence, the facts present a proper case for the reformation of the deed so erronously made, so that the same shall conform to the lines indicated by the said fence and intended by the parties at the time of the sale.</p> <p>Answer: Refused.16</p> <p>2. Charles Breneiser, Sr., having testified that he purchased property No. 140 for the plaintiff, and that before he did so he visited the premises and inspected them, and saw the fence erected between properties Nos. 140 and 138, and believed that the said fence was the north line of property No. 140, and went to the sale and bought with that belief; and if the jury believe that George D. Stitzel, executor of Andrew Davis, at said sale intended to sell to the said Charles Breneiser, Sr., for the plaintiff, only the land included within the fence which Charles Breneiser, Sr., believed to be the north line of lot No. 140, then the minds of the parties agreed upon the same subject-matter of sale, the deed should be reformed, and the plaintiff' is not entitled to recover.</p> <p>Answer: Refused.17</p> <p>3. Charles Breneiser, Sr., having purchased as agent for the plaintiff, and having testified that he read the advertisement of the sale before he bought, which advertisement contained the following notice to bidders: “ A draft showing the exact measurement of lines and division of the property can be seen at the office of the attorney, and will also be shown at the sale; ” and the draft mentioned in the advertisement having been exhibited at the sale in compliance with the said advertisement showing the exact measurement of lines and division of the property in agreement with the dividing fence, which then stood between the properties Nos. 140 and 138, it was the duty of Charles Breneiser, Sr., to inspect the draft of which he had notice through the advertisement, to ascertain the exact measurement of the lines and division of the property; and he will be held to have known at the time of the sale whatever he would have learned of the measurement and division of the property by an inspection of the draft.</p> <p>Answer: Refused.18</p> <p>—The jury returned a verdict for the plaintiff as directed. Judgment having been entered, the defendant took this appeal, assigning for error:</p> <p>1-14. The refusal of the defendant’s offers.1 to 14</p> <p>15. The answer to the plaintiff’s point.15</p> <p>16-18. The answers to the defendant’s points.16 to 18</p> <p>That a deed, with an erroneous description, may be reformed so as to conform to the intentions of the parties at the time of sale, counsel cited: Stafford v. Giles, 135 Pa. 417; Snyder v. May, 19 Pa. 237; Hunt v. Rousmanier, 1 Pet. 1; Rowand v. Finney, 96 Pa. 196; Young v. Edwards, 72 Pa. 267; Spencer v. Colt, 89 Pa. 319; Barnhart v. Riddle, 29 Pa. 96.</p> <p>Counsel cited: Cannon v. Boyd, 73 Pa. 182; Stiffler v. Retzlaff, 20 W. N. 303.</p>

<p>(a) The plaintiff in ejectment put in evidence a deed, in his line of title, from “ Margaret Rightmyer, late Margax’et Bowers, divorced,” and the record of a proceeding in equity in which defendant was a plaintiff, wherein a final decree was entered, affirmed by the Supreme Court, establishing the validity of the same deed:</p> <p>1. In such case, the fact of the divorce of the grantor having been raised and decided in the equity proceeding, both the deed and the record in affirmance o£ it were properly admitted, and by the latter the defendant was estopped from alleging that the divorce was obtained by fx-aud, and that the deed was therefore void.</p>

<p>An action to compel an accounting for partnership assets, brought against a surviving partner more than six years after the death of the plaintiff’s intestate, is barred by the statute of limitations: Hamilton v. Hamilton, 18 Pa. 20; MeKelvy’s App., 72Pa.409; Everhart’s App., 106 Pa. 349.</p>

January Term 1891, Sup. Ct.; court below, No. 406 Equity D. 1886, C. P. On January 31, 1890, the second and final account of G. W. Harrison and Caleb Rhoads, receivers of the property, etc., of the Enterprise Savings Ass’n of Birdsboro, duly appointed under proceedings by bill in equity filed to the number and term of the court below, stated above, was referred to Mr. S. O. G. JReiber, master, to report distribution.

<p>[To be reported.]</p> <p>(a) In 1883,* a married woman, upon her death-bed and in the absence of her husband, made a gift to her mother of her furniture then in the possession of the donor’s father, at the same time giving certain other chattels to a sister. After her death, her husband was informed of these gifts, by the sister, whereupon he said, “All right; I am satisfied : ”</p> <p>1. In an action brought four years afterward by the surviving husband, as administrator of the deceased donor, to recover the value of the furniture, it was not error to charge that if the plaintiff’s assent was understandingly given, and the donee was informed of it and acted upon it by taking possession of the furniture, she would have a good title thereto.</p>

APPEAL BY JOHN MOYER FROM THE ORPHANS* COURT OF BERKS COUNTY. January Term 1891, Sup. Ct.; court below, number and term not shown. On April 11, 1890, the Pennsylvania Trust Co., administrator d. b. n., c. t. a., of the estate of Jacob L. Moyer, deceased, filed an account showing a balance for distribution of $1,999,29, proceeds of the sale of certain real estate.

<p>APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS OP NORTHAMPTON COUNTY.</p> <p>January Term 1890, Sup. Ct.; court below, No. 15 April Term 1889, C. P.</p> <p>On February 25,1889, an issue was awarded wherein Eugene P. Unangst was plaintiff and the Goodyear India-Rubber Manufacturing Co. was defendant, to determine the title to certain goods and merchandise, levied upon by virtue of an execution in favor of said company as the property of J. R. Uberroth, and claimed by said Unangst.</p> <p>At the trial, on October 21,1889, the plaintiff put in evidence a judgment by confession entered on December 10, 1888, in favor of Eugene P. Unangst against J. R. Uberroth, for the sum of |7,000, with a writ of fieri facies upon said judgment; and followed with evidence that all the goodsin controversy were sold to said Unangst, at sheriff’s sale under said writ, on December 18-21, 1888, for $5,427.39. The defendant in the issue obtained judgment against Uberroth for $826.11, on February 28,1889, issued execution thereon, and levied upon the goods in controversy, in the place they remained after the sale to Unangst and in charge of Uberroth.</p> <p>The plaintiff having rested, the defendant began his defence by calling J. R. Uberroth “ for cross-examination under the act of 1887.” The witness testified, inter alia, that he had commenced business in Bethlehem in April, 1888, with $2,000 of his own money, had borrowed of Mr. Unangst while he was in business about $5,000, and had confessed to him the judgment for $7,000, to secure him as to borrowed money and as to other indebtedness for which he had become responsible. At this point, the plaintiff’s counsel moved that the testimony of the witness be -stricken out, for the reason that not being a party to the suit he could not be called for cross-examination. The objection was overruled; exception. After a full examination as to said indebtedness, the defendant asked the witness:</p> <p>Q. Do you know Mr. Van Court? A. Yes. Q. Was he in your store on November 30th? A. I don’t know the date; it was before I failed. Q. You made a certain statement to him about your financial condition? A. I don’t know. Q. Didn’t you say to him that you owed only $3,500; that you owed Mr. Unangst only $2,300, and that you had given no judgment at that time to anybody, and that your stock was worth about $10,000 ?</p> <p>Objected to, as incompetent and irrelevant and res inter alios acta.</p> <p>By the court: Objection sustained; exception.8</p> <p>The witness testified, further, that after the sale of the goods to Unangst, upon the latter’s execution, the witness remained in the store in the capacity of manager; and that his own name was still on the store-sign, with Mgr, meaning manager, added:</p> <p>Howard Van Court, called for defendant:</p> <p>Q. Did you call upon Mr. Uberroth to collect that [claim] ? A. Yes. Q. When did you call? A. On the thirtieth of November, 1888. Q. Did you call at his store? A. Yes. Q. You saw him? A. Yes. Q. Was Mr. Unangst present? A. He was in the back part of the store, engaged with Mr. Leport. Q. Did he hear your conversation? A. I don’t think he did. Q. Did Mr. Uberroth then make a statement to you in which he said that he owed only $3,500, that he owed Mr. Unangst only $2,300, and that he had given no judgment notes to anybody?</p> <p>By Mr. Cope: This question is offered as a declaration of Mr. Uberroth, who is alleged to have been in collusion with the plaintiff, for the purpose of defrauding Mr. Uberroth’s creditors.</p> <p>Objected to, as incompetent and irrelevant and res inter alios acta.</p> <p>By the court: The objection is sustained; exception.3</p> <p>The defendant having rested, the plaintiff was examined at length in rebuttal, giving statements and exhibits showing in detail the indebtedness of Uberroth to him, at the time of the confession of the judgment.</p> <p>At the close of the testimony, the court, Schuyler, P. J., instructed the jury to return a verdict in favor of the plaintiff, answering the points presented as follows:</p> <p>The plaintiff presents the following points:</p> <p>1. If the jury believe that at the time of giving the judgment note, J. R. Uberroth was indebted to the plaintiff, Eugene P. Unangst, in the sum specified in the note, and that execution on the judgment was issued for the purpose of collecting the debt, and not to hinder, delay and defraud other creditors, the verdict must be for the plaintiff.</p> <p>Answer: Affirmed.</p> <p>2. If the jury believe that, at the time of the issuing of the execution upon the judgment obtained on the note of J. R. Uberroth, he was honestly indebted to the plaintiff, Eugene P. Unangst, in a sum equal to or in excess of the amount realized upon the sale by the sheriff of the personal property of Uberroth, to wit, $5,427.89, and that there was no collusion between them to hinder, delay and defraud other creditors, the verdict must be for the plaintiff.</p> <p>Answer: Affirmed.</p> <p>3. Under all the evidence submitted in the case, the verdict must be for the plaintiff.</p> <p>Answer: Affirmed.1</p> <p>The defendant requests the court to charge:</p> <p>If the jury believe that the judgment of $7,000 to plaintiff was confessed for more than was due, with the corrupt intention of hindering, delaying and defrauding the creditors of J. R. Uberroth, the verdict should be for the defendant.</p> <p>Answer: Not affirmed.4</p> <p>—The jury returned a verdict for the plaintiff as directed.</p> <p>A rule for a new trial having been argued, the court, Schuyler, P. J., on November 4, 1889, filed the following opinion:</p> <p>The goods in controversy originally belonged to J. R. Uberroth. To show title in himself, the plaintiff gave in evidence a judgment and execution in his own favor against Uberroth, which was followed by proof of a sheriff’s sale of the goods under the execution, and of their purchase by the plaintiff. He then rested his case. The theory of the defendant was that plaintiff’s judgment had been confessed for more than was due, and that it was the result of a conspiracy between the plaintiff and Uberroth to defraud the latter’s creditors. In the hope of establishing the truth of this theory, the defendant placed Uberroth on the stand as a witness, and subjected him to a rigid cross-examination. Some suspicious ' circumstances were developed, but in spite of them the witness emphatically denied that the judgment was confessed for more than was due, and gave figures to show that it was confessed for really less than was due. He also denied the charge of conspiracy.</p> <p>It will thus be seen that the testimony of Uberroth, instead of helping, was exceedingly damaging to the defendant’s theory. The defendant then offered to prove declarations by Uberroth inconsistent with his statements on the witness stand; the offer was objected to and the objection sustained. Several of the reasons for a new trial are directed against this ruling, but we think the ruling was correct. We did commit error, but that was against the plaintiff, by allowing the defendant, under objection, to cross-examine Uberroth, as being “ a person whose interest was adverse” to the defendant, within the seventh section of the act of May 23, 1887, P. L. 158, relating to the competency of witnesses. He had no interest: Sheetz v. Hanbest, 81 Pa. 100. When, therefore, the defendant called him as a witness, he called him the same as any other witness having no interest and with the same legal consequences. One of these consequences was that the defendant might not contradict him. The reason for this is, that by calling Uberroth as a witness, the defendant avouched his credibility and is es-topped from averring the contrary: Stockton v. Demuth, 7 W. 39.</p> <p>If the suspicious circumstances testified to by Uberroth stood out alone, they might furnish sufficient evidence of collusion to open the door for the admission of his declarations, but they do not stand alone. Uberroth’s attention was called to them more than once, but he persisted in saying that notwithstanding appearances to the contrary the transaction was honest. The defendant cannot escape from this. He will not be heard to assert that so much of Uberroth’s testimony as tells against the plaintiff is true, and that what tells in his favor is false. “ It would give a party an unjust advantage to let him pick out particular parts of a witness’s testimony and reject the rest: ” Seip v. Storch, 52 Pa. 211.</p> <p>After the close of the defendant’s testimony, the plaintiff went upon the witness stand and swore substantially to the same state of facts as Uberroth had done. There were no other witnesses of any importance. The case then stood in this way: The title of the plaintiff being “ honest and lawful on its face, must be treated as such until it is shown to be otherwise by evidence of some kind, either positive or circumstantial: ” Kaine v. Weigley, 22 Pa. 183. There is no such evidence here. On the contrary, the defendant’s only witness, examined on the subject, affirmed that the title is honest, and his testimony is unimpeached and uncontradicted. Conceding that the burden had been shifted to the plaintiff to prove full consideration, the defendant having relieved him of that duty, there was nothing further for him to do.</p> <p>On the foregoing facts we directed a verdict in favor of the plaintiff, and notwithstanding the ingenious argument of the learned counsel for the defendant, we fail to see how we could have done otherwise without committing plain error: Cover v. Manaway, 115 Pa. 346. “ Fraud is not to be presumed without proof, nor upon proof which is slight; it must be established upon satisfactorjj- evidence; it must be sufficiently explicit in its character to fairly rebut the presumption” of innocence: Idem, 345. There is this to be said in favor of Mr. Uberroth’s testimony. He was called to prove himself a conspirator. Had he been a conspirator in fact, he might have declined to answer the questions put to him. Instead of claiming his privilege, which would have left the defendant virtually without any evidence, he voluntarily subjected himself to a searching examination, with the result above mentioned.</p> <p>Motion for a new trial overruled.</p> <p>—Judgment for the plaintilf having been entered on the verdict, the defendant took this appeal, assigning for error:</p> <p>1. The answer to the plaintiff’s point.1</p> <p>2, 8. The refusal of the defendant’s offers.8 3</p> <p>4. The answer to the defendant’s point.4</p> <p>Counsel cited: (1) Clark v. Douglass, 62 Pa. 408 ; Howard Exp. Co. v. Wile, 64 Pa. 201; Railroad Co. v. Stout, 17 Wall. 657; Redfield Mfg. Co. v. Dysart, 62 Pa. 62; Graham, v. Smith, 25 Pa. 828; Twitchell v. McMurtrie, 77 Pa. 883; Madara v. Eversole, 62 Pa. 160. (2) Cowden v. Reynolds, 12 S. & R. 281; Starkie on Ev., 247. (3) Lowe v. Dalrymple, 117 Pa. 564; Deakers v. Temple, 41 Pa. 234; Brinks v. Heise, 84 Pa. 246 ; Kichline v. Lobach, 125 Pa. 295. (4) Clark v. Douglass, supra; Bumm v. Ahl, 29 Pa. 387.</p> <p>Counsel cited: Hyatt v. Johnston, 91 Pa. 196; Howard Exp. Co. v. Wile, 64 Pa. 201; Raby v. Cell, 85 Pa. 80; Hazelett v. Ford, 10 W. 101; Yaple v. Titus, 41 Pa. 195; Meckley’s App., 102 Pa. 536 ; Second N. Bank’s App., 85 Pa. 528 ; Sheetz v. Hanbest, 81 Pa. 100; Bear’s Est., 60 Pa. 430; Shoemaker v. Kunkle, 5 W. 107; Mead v. Conroe, 113 Pa. 220; Morton v. Weaver, 99 Pa. 47.</p> <p>The judgment was affirmed on March 24, 1890, by an order per Curiam. On April 10, 1890, on motion, a re-argument was ordered; and on March 9, 1891, the cause was re-argued orally by Mr. Marry C. Cope, for the appellant, and by Mr. J. B. Kemerer, for the appellee, before a full bench.</p>

<p>APPEAL BY G. M. DAVIS ET AL. FROM THE COURT OF QUARTER SESSIONS OF CARBON COUNTY.</p> <p>July Term 1890, Sup. Ct.; court below, No. 46 June Term 1890, Q. S.</p> <p>On June 22, 1889, the petition of citizens praying for the division of the borough of Lansford into wards, under the provisions of the act of May 14, 1874, P. L. 159, and its supplements, was presented, whereupon three persons were appointed commissioners to inquire as to the propriety of such division and to make report, etc. On October 21, 1889, two of the commissioners filed a report recommending a division of said borough into three wards; confirmed nisi. This report set out that the three commissioners met at the borough council chamber, in said borough, on Saturday, September 21, 1889, at 10 o’clock A. M., “and, after all were severally sworn, proceeded to examine the territory of said borough and hear the testimony of parties interested, and then adjourned to meet at Mauch Chunk, Pa., on the 28th day of September, 1889, at five o’clock p. m., at which time all the commissioners, being present, heard further testimony from the parties interested, and then adjourned to meet at Mauch Chunk on Saturday, the 12th day of October, 1889, at one o’clock P. M. After hearing all the testimony and giving the matter due consideration, we have concluded that it would suit the convenience of the citizens to have the said borough of Lansford divided into three wards, and are of the opinion that the prayer of the petitioners should be granted.</p> <p>“We therefore recommend that the said borough of Lansford be divided into three wards. The first to be bounded and described as follows</p> <p>To this report, George M. Davis and others filed certain exceptions, one of which, filed nunc pro tunc, was as follows:</p> <p>“6. The report of the commissioners does not show that there was any notice given of the adjournment of their meeting from the borough of Lansford to the borough of Mauch Chunk, to hear further evidence in the case; nor, in point of ;Eact, was there any such notice given.”</p> <p>Said exceptions having been argued, the court, Drbuler, P. J., on April 25,1890, filed an opinion in part as follows:</p> <p>There is another question, not referred to by counsel, but which may become of importance; and that is, whether there should have been a new notice posted of the adjournment of the meeting of the commissioners from the borough of Lansford to Mauch Chunk, to hear further evidence. There was ample notice given of the first meeting at the borough council chamber in Lansford.</p> <p>In Brown v. Fowzer', 114 Pa. 446, Mr. Justice Gbben, delivering the opinion, says: “We think also, though the act is silent upon the subject, that proper notice of the proceedings should be directed by the court on the filing of the petition, and the character of the notice to be given, should be embodied in the order. The report should certify specifically what notice was given, so that it may appear on the face of the proceeding that the order of the court has been complied with. The powers conferred by the act are of a public and an important character, and all parties interested ought to have an opportunity to be heard, and such opportunity can be best obtained by an adequate notice so given as to reach most effectively the various parties to be affected.” In that case, the report failed to show what the notice was and how it was given.</p> <p>In the case we are now considering, the report shows ample notice of the first meeting, but does not show that any notice was posted of the adjournment. If it should be held that notice of adjournment should have been posted, the omission to do so would be fatal to the proceedings. We are not, however, clear as to this question.</p> <p>From the evidence heard, in court, it seems to me that the electors and citizens of the borough are pretty evenly divided on the question whether there should be two or three wards, each party being of the opinion that if the question should be submitted to a vote the majority would be with them. If there were no doubts surrounding the regularity of the proceedings, particularly, that there was no posted notice of the adjournment of the commissioners from Lansford to Mauch Chunk, a distance of some nine miles, where additional evidence was heard by them, I would not feel disposed to disturb the majority report, but, under all the circumstances, I would favor a review^ The associate judges, however, differ from me, and think that, as the defective draft may be perfected by referring the report back to the commissioners to make and return a complete draft, the report will be relegated to the commissioners for that sole purpose.</p> <p>—A defective draft having been corrected on a reference back to the commissioners for that purpose, an order was entered on June 10, 1890, confirming the report and decreeing accordingly. Thereupon, the exceptants took this appeal, specifying, inter alia, the overruling of the said exception, and the order confirming the report, etc., for error.</p> <p>Counsel cited : § 2, act of May 14, 1874, P. L. 159 ; § 14, act of April 15,1834, P. L. 539; Brown v. Fowzer, 114 Pa. 450; Bethel Tp. Road, 1 Pa. 101; Norwegian Tp., 20 Pa. 326 ; North Whitehall Tp., 47 Pa. 156; Independence School D., 33 Pa. 299; Wilkins Tp. School D., 70 Pa. Ill; Clearfield Ind. School D., 79 Pa. 419.</p> <p>Counsel cited: Edgewood Bor., 130 Pa. 348; Peach Bottom Tp. Road, 3 Penny. 541, 544; Paradise Road, 29 Pa. 20 ; South Abington Tp. Road, 109 Pa. 118, 124; Sterrett Tp. Road, 114 Pa. 627, 634 ; Lower Merion Road, 18 Pa. 238.</p>

July Term 1880, Sup. Ct.; court below, No. 30 May Term 1889, C. P. On May 9, 1889, James W. Cornish brought assumpsit against Edward E. Hooker, Sr., and Edward E. Hooker, Jr., partners doing business as E. E. Hooker & Son. Issue.

January Term 1891, Sup. Ct.; court below, No. 7 February Term 1887, C. P. On January 10, 1887, Henry Serfass and others brought ejectment against Franklin Dreisbach, for a tract of fifty acres in Tunkhannock township. Issue. At the trial on November 15,1888, the court, Dreher, P. J., directed a verdict in favor of the plaintiffs.

January Term 1891, Sup. Ct.; court below, No. 46 June Term 1884, C. P. On May 16,1884, Joseph Kellow brought case against Henry Jory, John L. Jory, and Robert Kellow. Subsequently, the deaths of Henry Jory and John L. Jory, defendants, were suggested, and their respective administrators, Dinah Jory and John L. Jory, Jr., were substituted.

<p>(a) In trespass against physicians for negligence in giving a false certificate for the commission of the plaintiff to a hospital for the insane, under the act of April 20, 18G9, P. L. 78, the court below found, as facts, that although the plaintiff was not insane at the time, yet the defendants wei’e not guilty of negligence:</p> <p>1. In such case, the court properly ruled that, the certificate averring that an examination had been made as required by the act, the burden of proving negligence was upon the plaintiff, and that no presumption of negligence arose from the fact that the defendants were mistaken as to the plaintiff’s insanity.</p> <p>2. The release of one of two joint tort-feasors is a discharge of both; and this, notwithstanding the mutual intention of the plaintiff and of the defendant released was that such release should not affect the suit of the plaintiff pending against the other defendant: Per Schuyler, P. J.</p>

<p>1. Where pending litigation is submitted to referees whose decision is to be final and conclusive upon the parties, the only ground upon which the award filed may be assailed is that of fraud or misbehavior on the part of the referees.</p> <p>2. No exceptions to the award upon any ground having been filed in the court below, there is nothing brought upon the record that will give standing to an appellant to allege fraud or misbehavior on the part of the referees, in the Supreme Court.</p> <p>3. Depositions, which appear to have been submitted to the court below and are printed in the appellant’s paper-book, are not thus brought properly before the Supreme Court; and besides, being conflicting, that court cannot pass upon the controverted facts.</p>

<p>APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS no. 3 op Philadelphia county.</p> <p>July Term 1890, Sup. Ct.; court below, No. 733 June Term 1888, C. P. No. 3.</p> <p>On August 29,1888, Julia Kelly brought assumpsit against Sarah Eby. Issue.</p> <p>At the trial, on April 80, 1890, the plaintiff, called in her own behalf, testified:</p> <p>“ I am the plaintiff in the case. I loaned to Mrs. Eby 1350. She asked me to let her have the money to help her out of a difficulty she was in. I was at my brother’s house, 1202 Carlton street. Mrs. Eby came there and asked me for the money. She said, ‘Julia why did you disappoint me, and me in a corner and can’t get out of it? ’ The next day, I drew the money out of bank and gave it to her. The money was handed to her in the back room of her house. No one was present when I handed her the money. This was the thirtieth day of December, 1884. She often promised me to pay it. I saw her several times before Mr. Eby died, and the day before he died, she said, ‘Julia, Mr. Eby is going to die, and I will pay you out of the insurance money; ’ and about two weeks after his death, I asked her about it and she said, ‘ According as I get the money from my boarders, I will give you so much till I pay you the money.’ She never paid it.”</p> <p>Cross-examined: “1 handed the money to Mrs. Eby herself, in the back room of her house. No one was present. When I went home, my brother told me I ought to get a note, or something to show for it, and a day or two afterwards I went back and went up to the sitting-room. Mr. Eby was there and he gave me a note for it. He was sitting at a table in the sitting-room; I don’t think any one was present; and he wrote it at the table and gave it to me. At the end of the year, he paid me the interest on the note and gave me a new one, and when that one came due, he paid me the interest and gave me a new one again.” Note of E. C. Eby, dated January 2,1888, for $850, payable one year after date, with interest, produced by plaintiff on call, shown witness: “ I cannot read or write. I don’t know what this paper says. Mr. Eby gave this to me when he took up the last note. If this note is paid, I wouldn’t claim anything off Mrs. Eby. All I want is my money. Mr. and Mrs. Eby were living together, at 248 North Nineteenth street when I loaned the money. Mr. Eby died the day before the blizzard, in March, 1888.”</p> <p>John Kelly called: “I am the brother of the plaintiff. I know Mrs. Eby very well. She came to my house several times. She came the twenty-ninth of December, 1884, and said she wanted to borrow some money. She asked for Julia. She said to her, ‘ Julia, I’m surprised that you disappointed me to-day, and me in a corner,’ and Julia said then that I was the cause of her not drawing the money. I said, ‘ The book is yours, and you can do as you please to-morrow with it.’ Julia went the following morning and drew the money. I did not see her pay the money. The last of December, 1884, Julia told me about the loan, and I asked her if she had anything to show for it. I told her to go back and get a receipt, or a note, or something, for the money; she did so, and came back with a note of Mr. Eby’s.”</p> <p>The defendant put the E. C. Eby note in evidence and, being sworn as a witness in her own behalf, testified:</p> <p>“I am the defendant in this case. I live at 248 North Nineteenth street. Mr. Eby, my husband, died in March, 1888..... This money was not paid to me at all. Julia told me her brother was wanting to get her money, and Mr. Eby said if she had any money he would take it and pay her interest for it. She came in a day or two afterwards and gave the money to Mr. Eby, in the sitting-room. I thought it was only $250. I supposed she got the note at the same time. She was very particular to get a note from Mr. Eby. He wrote the note and handed it to her. I had nothing to do with it. She would not loan me any money. I asked her for a little trifling loan a few days before that, and she refused to give it to me. Mr. Eby, at that time, was in business 021 Market street, below Sixth. He was a wholesale grocer and was doing a good business. He failed in. business about a year before his death. Mrs. Kelly never spoke to me about this matter U2itil after Mr. Eby’s death. I did not see her at all just before his death. I was all the time engaged in waiting on him. She had all her dealings with Mr. Eby. He paid her the interest himself, and gave her a new note when the old one fell due.” Note of E. C’. Eby, dated January 2, 1888, shown witness: “ This is all in Mr. Eby’s ha2idwriting. This note was not due when the suit was brought. After Mr. Eby’s death, Mrs. Kelly spoke to me about Mr. Eby’s note, and I said, ‘ After his business is settled, you will get your money.’ 12iever promised to pay her any money.”</p> <p>Cross-examined: “ I have known Julia Kelly for many^years. She has often worked for me. I never went to her brother’s house to borrow money of her. 1 went there often, to see Julia and get her to come and do work for me. I never asked her there to lend me any money. I did not ask her there, on the twenty-ninth of December, 1884, to lend me $350, or any other amount. I did not say to her, ‘ Julia, I’m in a corner, and Mr. Eby will not give me any money.’ 1 asked her casually one time, at my house, to lend me a trifle to pay some bill or other. By a trifle I mean about $25 or so. She wouldn’t loan it to me. She paid the money to Mr. Eby, in the sitting-room. He wrote the note and gave it to her. She didn’t loan the money to me at all. I hadn’t anything to do with it. Mr. Eby paid her the interest, and settled the notes when they came due. Mr. Eby, at that time, was in business as a wholesale grocer. He paid all the bills for the house. I always went to him when I wanted money. I own the house 248 North Nineteenth street. It was in my name. I haven’t got anything out of Mr. Eby’s business. I never told Mrs. Kelly I would pay her out of the insurance money. I did not see her at all just before Mr. Eby’s death. She did see me after his death, and asked me about the note, and I told her if she would wait until Mr. Eby’s business was settled, perhaps she would get her money. I never said I would pay her out of board money.’</p> <p>The case then closing on the testimony, the court, Gokdon, J., charged the jury:</p> <p>This action is brought to recover a sum of money loaned, or alleged to have been loaned, by plaintiff to defendant. The ease is one of considerable difficulty as to the legal propositions involved. As to most of them my mind is very decided; but, as to the probable final determination of this case, I am in doubt.</p> <p>The defendant was a married woman when the plaintiff alleges she went to her and got a loan of $350. She loaned it at defendant’s solicitation, according to plaintiff’s story, and she received no receipt or note for it at that time. When she came back, her brother instructed her to get a note, and she went for that purpose some days after, and she saw defendant’s husband and he gave plaintiff his note. The plaintiff is a wonian and incapable of reading or writing, and nothing was said about the contents of the paper; she merely received it. Subsequently, upon two occasions when the notes became due, at each interval she collected the interest, which was paid by the hus.band. She received another note, and to-day has it in her possession, a note signed by the husband.</p> <p>It is undoubtedly the law that a married woman, at that time, could not make a valid contract such as this, and that if any married woman could induce another to loan her money it .could never be recovered against her, unless afterwards the married woman, becoming sole by the death of her husband, revived and assumed the indebtedness. Undoubtedly, when, according to the plaintiff’s story this loan was made, there could be no recovery, and if, then, nothing subsequent happened, there could be nothing recovered now. i • It is alleged by the plaintiff, however, that she went to the defendant at the time of the death of her husband, and defendant then promised to pay. [For the purpose of this case, I instruct .you that if you should find that fact is true, that the loan' was made to her in the first instance, and that the note was received in ignorance of its contents, from defendant, and after the death of the husband she promised to pay it, that !was a- sufficient obligation upon which she could be now sued for the original indebtedness.] 1</p> <p>[There are two defences of law. One is, that the note was taken fifom the- ■ husband. Gentlemen, if the defendant asked and received a loan of money, and, in fact, a note of the husband, then insolvent, was given to a woman ignorant of its contents, that would not change the character of the loan.] 8 .■The'' other defence is that it was. a loan to the husband; that fit was intended and known to be such; and that is the only defence in this case you can pass upon. [If you believe plaintiff’s story as to how she loaned the money originally, and .the. subsequent occurrences relating to it, I instruct you, under .the evidence, she is entitled to recover.]3 If, on the other hand, you believe the money was loaned to the husband originally and intended to be loaned to him, then your verdict should be for defendant.</p> <p>The defendant requests the court to charge:</p> <p>T. If the jury believe from the evidence that at the time of the alleged loan, the defendant, Sarah Eby, was a married woman and living with her husband, then the plaintiff is not entitled to recover here and your verdict should be for the defendant.</p> <p>Answer: Refused.4</p> <p>2. If the jury believe from the evidence that when the loan was made, the plaintiff received for the said loan the note of E. C. Eby, defendant’s husband, which note was afterwards taken up by said E. C. Eby at maturity, then the plaintiff is not entitled to recover here, and your verdict should be for the defendant.</p> <p>Answer: Refused.6</p> <p>4. Under the evidence in this cause, the verdict should be for the defendant.</p> <p>Answer: Refused.6</p> <p>—The jury returned a verdict in favor of the plaintiff for $419.85. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error:</p> <p>1-3. The portions of the charge embraced in [ ] 1 to 3</p> <p>4-6. The answers to the defendant’s point.4 to 6</p> <p>Counsel cited: (a) Phila. etc. R. Co. v. Alvord, 128 Pa. 42. (1) Lawson v. McCartney, 104 Pa. 356; Painter’s App., 18 W. N. 441; Kensington Bank v. Patton, 14 Pa. 479; LaForge v. Jayne, 9 Pa. 410; Chandler v. Glover, 32 Pa. 509; Curtin v. Patten, 11 S. & R. 305; Ilinely v. Margarita, 3 Pa. 428 ; Pleugh v. Jones, 32 Pa. 432 ; W olbach v. Building Ass’n, 84 Pa. 211; Guyer v. Harrison, 103 Pa. 473; Sellers v. Heinbaugh, 117 Pa. 218; Berger v. Clark, 79 Pa. 340. (3) Hall v. Hurford, 2 Clark 292; Licey v. Licey, 7 Pa. 251; Hays v. Mc-Clurg, 4 W. 454; Brown v. Scott, 51 Pa. 364.</p> <p>Counsel cited: Brown v. Bennett, 75 Pa. 420 ; Trout v. McDonald, 83 Pa. 144; Leonard v. Duffin, 94 Pa. 218; Kennedy v. Ware, 1 Pa. 445; Hawkes v. Saunders, Cowp. 289; Hare on Cont., 262, 269, 294; Smith on Cont., *308; Baeder v. Barton, 11 W. N. 165; Brooks v. National Bank, 125 Pa. 394.</p>

<p>1. In an action by the indoi’see of a negotiable note against the makers, an averment in an affidavit of defence that the plaintiff was not the bona fide holder of the note, but was suing to “ accommodate” the payees, and had so informed the defendants in writing, entitled the defendants to set up any defence they would have had in a suit on the note by the payees.</p> <p>2. An averment that the note was given in payment for pianos purchased under a contract by which the defendants were to be the exclusive sales-agents of the payees for the period of five years, and that by reason of a revocation of the agency, without cause, the defendants had been unable to dispose of the pianos, is sufficient to prevent a summary judgment.</p> <p>3. Though an affidavit of defence set out an erroneous measure of the damages to which the defendants allege they are entitled, yet the question to be determined on the motion is, not whether the defendants have adopted a correct measure of the damages, but whether they have stated facts from which a right to damages results.</p>

<p>APPEAR BY DEFENDANT FROM THE COUBT OF COMMON PLEAS OF LACKAWANNA COUNTY.</p> <p>July Term 1890, Sup. Ct.; court below, No. 571 June Term 1887, C. P.</p> <p>On June 9,1887, an appeal by the plaintiff was entered from the judgment of a justice of the peace in an action of assumpsit by C. S. Lowrey against B. S. Robinson, administrator of C. S. Robinson, deceased, to recover the sum of $40, alleged to have been loaned by tlie plaintiff to the defendant’s decedent some time in the year 1875. On February 18th, tlie defendant pleaded non-assumpsit, and the statute of limitations.</p> <p>At the trial on December 6, 1889, William Slocum, called for plaintiff, testified that he bad seen the plaintiff give money to the deceased “lots of times; ” that in tbe winter of 1875 he let him have twenty dollars, but he heard no part of the conversation at the time: “ Q. If you have since had any conversation with Mr. Robinson, in regard to these sums of money that were loaned, state when it occurred, and what it was ? A. Well, I was there once in the house, sitting there; got to talking about Mr. Lowrey; I says to him, ‘ By-the-way, Charlie wanted me to collect that little bill you owe him.’ ‘Well,’ he sajrs, ‘ I will pay Charlie when I get ready,’ he says; ‘ he can wait.’ ”</p> <p>At the close of his cross-examination of the witness, the defendant moved that the last portion of the witness’s testimony with reference to his conversation with Mr. Robinson, be stricken out, for the reason that, if an acknowledgment at all, it was not an acknowledgment consistent with a promise to pay.</p> <p>By the court: Motion refused.1</p> <p>Cyrus Barrowcliff, called for plaintiff, testified that in the winter of 1888 or 1884, he was present when Lowrey asked Robinson for a bill that he owed him; it seemed he had two bills: “ Q. Whatever you heard them say together is what we want to know. A. He asked him for those bills, or for one of them-, and he told him, — it seems one was borrowed money and the other was a bar bill, — he told him he would pay the borrowed money, but he never should pay him any more bar bill.’ George Stansbury testified that, about fifteen years before, he heard Lowrey and Robinson talk “ in regard to their bills of indebtedness,” and Robinson gave Lowrey a check for some bill that he owed him. Whitney Chamberlain testified that he had a conversation with Robinson in 1883: “ Q. State what you heard Mr. Robinson say? A. Why, he said that he had borrowed some money of Charlie; he was going to pay it to him, but he said Charlie hadn’t used him right; he said, ‘ I am going to pay it to him, when I get damn good and ready.’ ”</p> <p>At the end of a cross-examination of this witness, the defendant moved “ that the testimony as to the acknowledgment of Mr. Robinson to pay this debt be stricken out.”</p> <p>By the court: Motion refused.8</p> <p>The plaintiff then and last called Alfred Townsend, who testified that in Robinson’s lifetime the witness was sent to him by Mr. Lowrey: “ Q. What took place between you and Mr. Robinson ? A. Mr. Lowrey gave me a bill to go down to Mr. Robinson’s for to collect some money. Q. Did. you see Mr. Robinson ? A. I did, sir. Q. What conversation did you have with him about it? A. I gave Mr. Robinson the bill, and he looked it over, and he said, — there was a bar bill on it, — and he said that the money, — that he didn’t have it just at present, but he intended to pay it when he had it; that he didn’t have it at that time. Q. The borrowed money he intended to pay, but he didn’t have it at that time ? A. Yes, sir. Q. Say anything about anything else ? A. He said the other bill, — why, he thought he had paid enough of that kind. Q. What did you mean by the other bill ? A. The bar bill. Q. He said about the bar bill that he thought he had paid enough of bar bills? A. Yes, sir. Q. Do you remember how much the borrowed money was ? A. The bill said forty dollars. Q. When did that conversation occur ? A. It was either some time in May or June, in 1884.”</p> <p>The plaintiff then rested, when the defendant moved for a judgment of nonsuit, for the reasons that: (1) The original indebtedness had not been sufficiently established; (2) the acknowledgments proved had not been shown to relate to the same indebtedness; (8) most of them were not consistent with a promise to pay, and the indebtedness was not sufficiently identified; (4) except in a single instance, the promises were not to the plaintiff or to his known agent.</p> <p>By the court: Motion refused; exception.5</p> <p>The case then closing on the testimony, the court, SiTTSER, P. J., 44th district, specially presiding, charged the jury:</p> <p>The parties in interest of course are incompetent to testify as to transactions occurring in the lifetime of C. S. Robinson, who is now dead, and the plaintiff has attempted by the testimony of various witnesses to establish the fact that some time C. S. Robinson borrowed some money of the plaintiff.</p> <p>The first witness called upon that subject was William Slocum, and you heard his testimony. He testifies he saw the plaintiff and C. S. Robinson together; that he saw Mr. Lowrey hand some money to Mr. Robinson. His testimony in chief would seem to indicate that the money was then borrowed by Robinson of Lowrey. On cross-examination, you recollect what he said of the conversation between the parties; he did not hear it, but heard Lowrey say it was borrowed money. The other witnesses were called, Cyrus Barrowcliff, George Stansbury and Whitney Chamberlain, not in the view of proving previous indebtedness, but, as I understand, a promise to pay an indebtedness or an acknowledgment of it. There is nothing in the testimony of these witnesses that would go to show an unequivocal acknowledgment of the debt, or a promise to pay it, that would take it out of the statute of limitations.</p> <p>[The last witness, however, called by the plaintiff, by the name of Townsend, testified as to a conversation that occurred between him and Ci S. Robinson some time in May or June, 1884. You will recollect what his testimony was on the subject. As I remember it, he stated substantially, that in May or June, 1884, he had a bill given to him by Mr. Lowrey against C. S. Robinson; that he was then in the employ of Mr. Lowrey, who sent him to collect that bill; that he presented it to Mr. Robinson; Mr. Robinson looked at it and stated that the bar bill contained upon it he would not pay, but the borrowed money he would, and that the bill contained an item of forty dollars. If C. S. Lowrey, through his agent presented a charge of forty dollars for borrowed money, and the defendant on looking at that item admitted that the forty dollars was borrowed money, that is evidence of that fact for you, if you believe the witness. If he said to this witness that he would pay it, it was an express, unequivocal promise, such a promise as would take it out of the statute of limitations, even if the indebtedness was over six years old when this suit was brought.] 3 You heard the testimony of this witness. You are the judges of his credibility; and, if the testimony satisfies you that there was at this time an admission that he owed the plaintiff forty dollars of borrowed money, and that he promised to pay it, your verdict should be for the plaintiff. If not, then your verdict should be for the defendant. If you find for the plaintiff, he will be entitled to interest from the time the debt was due.</p> <p>—The jury returned a verdict for the plaintiff for $52.80. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, specifying that the court erred:</p> <p>1, 2. In refusing defendant’s motions to strike out.1 3</p> <p>3. In the portion of .the charge embraced in [ ] 3</p> <p>4. In submitting the case to the jury upon the evidence.</p> <p>5. In refusing the defendant’s motion for nonsuit.5</p> <p>As to an acknowledgment of an indebtedness, counsel cited: Palmer v. Gillespie, 95 Pa. 344; Wesner v. Stein, 97 Pa. 326 ; Landis v. Roth, 109 Pa. 621; Burr v. Burr, 26 Pa. 284; McKinney v. Snyder, 78 Pa. 497. That it must be made to the creditor, or his known agent: Gillingham v. Gillingham, 17 Pa. 302; Kyle v. Wells, 17 Pa. 286; Wells v. Pyle, 1 Phila. 21; Wesner v. Stein, supra ; Chandler v. Glover, 32 Pa. 509 ; McKinney v. Snyder, supra; Spangler v. Spangler, 122 Pa. 359. As to the necessary identification of the debt: Suter v. Sheeler, 22 Pa. 310; Landis v. Roth, supra; Shitler v. Bremer, 23 Pa. 413; Palmer v. Gillespie, supra; Wesner v. Stein, supra; Chapman’s App., 122 Pa. 331; Kensington Bank v. Patton, 14 Pa. 479; Bell v. Morrison, 1 Pet. 351; Lawson v. McCartney, 104 Pa. 356. As to the vague and indefinite character of the promise: Laforge v. Jayne, 9 Pa. 410; Chandler v. Glover, supra; Bell v. Morrison, supra; Love v. Hough, 2 Phila. 350; Storm v. White, 6 Phila. 531. That there was no sufficient proof of a pre-existing indebtedness : Best on Presumptions, 176; Flemming v. McClain, 13 Pa. 177; Masser v. Bowen, 29 Pa. 128.</p> <p>The testimony of Slocum and Chamberlain being given without objection, the proper course was to request the court to instruct the jury to disregard it: Robinson v. Snyder, 25 Pa. 203; Ashton v. Sproule, 35 Pa. 492; Oswald v. Kennedy, 48 Pa. 9; Yeager v. Weaver, 64 Pa. 425; Montgomery v. Cunningham, 104 Pa. 349. The refusal of a nonsuit is not assignable as error: Ballentine v. White, 77 Pa. 20. The acknowledgment of the debt was sufficient: Palmer v. Gillespie, 95 Pa. 340; Wesner v. Stein, 97 Pa. 322; Montgomery v. Cunningham, supra; Bolton v. King, 105 Pa. 78; Landis v. Roth, 109 Pa. 621; Shaeffer v. Hoffman, 113 Pa. 1; Yost v. Grim, 116 Pa. 527.</p>

<p>[To be reported.]</p> <p>1. When a testator by his will bequeaths the income of his estate to his widow for life, with particular and residuary bequests payable at her death, on distribution an election by the widow to take against the will must be treated, in all its results, as the equivalent of her death: Ferguson’s Est., 138 Fa. 208.</p> <p>2. The effect of such election will he to accelerate payment of all the legacies, in the testator’s order of priority. The particular legacies cannot be postponed until the widow’s death, that the income thereof may be transferred to the residuary legatees during her life, to compensate for diminution in the amounts coming to them.</p> <p>3. The equitable doctrine stated in Sandoe’s App., 65 Pa. 314, that the benefit intended for the widow will be sequestered to secure a provision for those who are disappointed by her election, does not justify an interference with the right of priority given by the will to other beneficiaries, merely on account of diminution of the residuary estate.</p> <p>4. A court of equity will interpose if necessary to preserve the intention of the testator from destruction; but such interposition should never take place in favor of a residuary as against a definite legatee, unless upon a plain implication in the will that the residuary legatee is in fact a preferred object of the testator’s bounty.</p>

<p>[To be reported.]</p> <p>1. Where, at the time of receiving an advance of money, an officer of a corporation gave to the person who advanced it his individual note for the amount, the presumption is that the note was given as the consideration, and not as a security for the money.</p> <p>2. It is competent, however, to rebut this presumption by showing that in fact the money was lent to the corporation for its use, that this was the understanding of all parties, and that the note given by the officer was in the nature of a collateral security.</p> <p>3. In this case, it being shown that the loan was procured on behalf of the company and applied to its use, under authority so to do, and that all parties so understood the transaction, the testimony was sufficient to rebut said presumption and to charge the corporation.</p>

<p>APPEAL BY C. D. CLARK FROM THE OOVRT OF COMMON PLEAff HO. 3 OF PHILADELPHIA COUNTY.</p> <p>July Term 1890, Sup. Ct.; court below, No. 366 March Term 1889, C. P. No. 3.</p> <p>On April 18,1889, Arthur Y. Meigs and William M. Meigs, executors of the will oí J. Forsyth Meigs, deceased, brought scire facias upon a mortgage, dated November 26, 1873, recorded the same day, and covering certain premises on Twenty-third street, Philadelphia, against Samuel C. Bunting, Jr., with notice to Charles D. Clark and others, terre-tenants. Charles D. Clark having appeared and filed an affidavit of defence, a statement of facts was agreed upon between him and the plaintiffs, by a writing filed, to have the same effect as if found in a special verdict by a jury. The facts so agreed upon were in substance as follows:</p> <p>On February 9,1873, there was entered of record in the District Court of Philadelphia county a judgment against Samuel C. Bunting, Jr., and in favor of Robert W. Ryerss, upon a bond and warrant of attorney for $8,000, payable in one year from November 4, 1872, with interest thereon payable half yearly. The judgment bond recited the fact that it was accompanied by a mortgage of two lots of ground on Walnut street, Philadelphia. This recital, however, was not noted on the docket entries. The mortgage thus referred to was dated November 4, 1872, and was duly recorded. It was satisfied of record on October 31, 1874, by Frederick B. Vogel, by virtue of an assignment thereof to him from Ryerss, dated September 23,1874, and recorded October 29,1874. On the date of that assignment, the judgment in favor of Ryerss was marked to the use of Vogel. It was never marked satisfied. On October 29, 1874, and January 9, February 12 and September 2, 1875, releases of property from the lien of the judgment were filed. On November 15, 1875, the judgment was marked by Vogel to the use of George F. Power. An alias writ of fieri facias was issued on November 20, 1875, and on December 18, 1875, the defendant obtained a rule to open the judgment, with a stay of the execution.</p> <p>The affidavit upon which said rule was granted, averred that the debt of $8,000 was paid by the defendant to Ryerss, whereupon satisfaction was entered upon the accompanying mortgage; that the judgment ought to have been satisfied at the same time, but that Vogel caused it to be assigned to him without the defendant’s knowledge or consent; that, as soon as he learned of this, the defendant objected to it, but Vogel said it was for his protection that the judgment was kept alive, and that when the transaction was closed it would be satisfied, or marked to use, as the defendant might direct; that, in violation of the agreement made and of the defendant’s rights, Vogel afterwards marked the judgment to the use of Power, who bad no lawful right whatever to hold or control it.</p> <p>The rule was discharged by the court on February 5, 1876; but on March 18, 1876, by agreement of the respective counsel of the parties, it was reinstated. On May 16, 1877, the rule was withdrawn by agreement filed. A release of certain premises from the lien of the judgment was filed on June 9,1877.</p> <p>On June 11, 1875, Ephraim Clark obtained a judgment in the Court of Common Pleas No. 1 of Philadelphia county, against Samuel C. Bunting, Jr., for $12,000, upon which an alias writ of fieri facias was issued January 26, 1877, and one of the lots of ground described in the mortgage of Bunting to Meigs, was levied upon. By virtue of a writ of venditioni exponas, issued in the same case, said lot was sold by the sheriff on March 5,1877, for $2,600, but, the terms of sale not having been complied with, an alias writ was issued and the lot was again sold by the sheriff on April 2, 1877, Charles D. Clark becoming the purchaser at the second sale. The sheriff made a deed therefor to Clark, which was acknowledged May 12, 1877, and duly recorded.</p> <p>After argument of the case stated, the court, without opinion filed, entered judgment against the terre-tenant for the amount of the mortgage debt, with interest from June 16,1878, whereupon the terre-tenant Clark took this appeal, specifying that the court erred:</p> <p>1. In not entering judgment for the defendant on the case stated.</p> <p>2. In entering judgment for the plaintiffs on the case stated.</p> <p>1. There was no proof that the bond, on which the judgment prior to the plaintiffs’ mortgage was entered, had really been paid at the time of the sheriff’s sale. On the contrary, there is the strongest presumption that it had not been, arising from the fact that the rule to open the judgment was ultimately discharged by agreement, and the lien of the judgment stands at the present time against Bunting in full force. It will not do to say that the withdrawal of the rule was collusive, inasmuch as its effect was to leave the debtor at the mercy of the judgment creditor, to the extent of upwards of $8,000. Whilst, as between obligor and obligee, a presumption of payment arises from the marking of satisfaction upon the accompanying mortgage, this presumption may be overturned by other evidence. In other words, such marking is evidence of payment, but not conclusive evidence: Fleming v. Parry, 24 Pa. 50; Hughes v. Torrence, 111 Pa. 617; West’s App., 88 Pa. 341.</p> <p>2. Without commenting on what is well known, that in this city it is usual, after a sheriff’s sale and the acquisition of title to the mortgaged premises by the mortgagee or by a third person, to clear the title by entering satisfaction upon the mortgage, and that the bond is never supposed to be satisfied thereby, it is sufficient for us to argue that the case of Seiple v. Seiple, 133 Pa. 472, decides nothing more than that after a mortgagee has entered satisfaction upon the mortgage, the burden is thrown upon him to prove that the accompanying bond was not paid. It is unnecessary to discuss the question whether a purchaser at sheriff’s sale is bound to look in the recorder’s office, to ascertain whether there may not be a mortgage which accompanied the judgment bond marked satisfied; we are willing to be charged with notice of all that could have been ascertained by such an examination at the time of the sheriff’s sale.</p> <p>3. Nor is it necessary to ask the court to say whether the decision in Patterson v. Given, 15 Phila. 347, that an intervening mortgage will not be divested, if the purchaser at the sale was the owner of the judgment prior thereto and knew that it had been paid, is correct. If necessary, we would contend that that case was not well decided, because the effect of a sheriff’s sale must not be made to depend upon the person of the buyer, as, if all buyers are not under the same rule of divestiture or non-divestiture, there can be no certainty in the bidding and the debtor will suffer. All that we need to contend for is that the existence of a dispute as to the fact of payment of the prior judgment, will not prevent the divestiture of an intervening mortgage. Nothing more appears in the present case than that there was such a dispute. Must the buyer, obliged to act at once, take the chance of the ultimate decision of such a dispute? If the prior judgment lien be valid on its face, and be not marked paid, it stands on the record as a lien, and all the incidents of such lien must follow.</p> <p>4. At common law, a sheriff’s sale divests all liens. The Meigs mortgage was not prior to all other liens, but was subsequent to a judgment not marked paid and about the payment of which there was a dispute, as the record disclosed. The result of this state of the record Avas that the act of April 6, 1830, P. L. 293, saving from divestiture mortgages prior to all other liens, except other mortgages, etc., did not apply, and the common-law effect of divestiture followed the sale. This court has frequently expressed its judgment as to the vital necessity of making the record the sole test by which to determine the effect of sheriffs’ sales: Reading v. Hopson, 90 Pa. 497; Harper’s App., 4 W. N. 49; Coyne v. Souther, 61 Pa. 457; Magaw v. Garrett, 25 Pa. 322; Goepp v. Gartiser, 35 Pa. 133. In conclusion, we appeal to the recent case of Saunders v. Gould, 134 Pa. 446, holding that if the fact of payment is not shown by the record, and is unknown to the purchaser, the mortgage will be divested.</p> <p>1. The case of De Witt’s App., 76 Pa. 283, very positively charges the defendant Clark with all that he would have learned from an examination in the office of the recorder of deeds, and notice of everything appearing upon the record of the prior judgment, in favor of Ryerss, is fixed upon him by the decisions in Kirk’s App., 87 Pa. 243; Cohen’s App., 10 W. N. 545; Goepp v. Gartiser, 35 Pa. 130. We do not contend that the mere taking of a rule to open renders a judgment of no effect, but we do contend and the cases decide that persons interested are required to make inquiry as to the truth of the facts stated in the affidavit on which the rule is granted: Griffiths v. Sears, 112 Pa. 523; Biddle v. Tomlinson, 115 Pa. 299; Cohen’s App., supra; Parke v. Neeley, 90 Pa. 52. And see further, as to notice, Miller v. Flunk, 26 W. N. 213; Patterson v. Given, 15 Pliila. 347.</p> <p>2. Clark knew, then, when he purchased the property, that the judgment was a fraud and a sham, owned and controlled by the defendant Bunting, for his own purposes. Not only was this set forth by Bunting’s affidavit, but the collusion by which the judgment was kept open was indicated by the succession of releases filed, and was shown by the veritable game of bide and seek which the nominal plaintiff and the defendant played in agreeing to reinstate the once-discharged rule to open and in' afterwards withdrawing it. Bunting’s reason for this withdrawal cannot now be known positively, but at least one possible motive will occur when it is noticed that the withdrawal was just four days after the acknowledgment of the sheriff’s deed, and in time to permit the judgment, really controlled by him, to take the purchase money on distribution.</p> <p>3. A debt, once paid, is, as to the rights of subsequent creditors, as completely obliterated as if it had never existed, and the security for it cannot be kept alive, even by the agreement of the parties, to the prejudice of third persons: Loverin v. Humboldt Co., 113 Pa. 6; Waters v. Largy, 5 R. 131; Mitchell v. Coombs, 96 Pa. 430 ; Wood v. Yanarsdale, 3 R. 401; Anderson v. Neff, 11 S. & R. 208. The entry of satisfaction upon the Reyerss mortgage, without any contemporaneous proceedings to rebut the presumption of payment arising therefrom, allowed our mortgage to take position as the first lien, and no subsequent juggling with the Ryerss judgment can be allowed to oust us from that position.</p> <p>4. Even if there were no other evidence of payment than the entry of satisfaction, it would be enough; for such entry raises a strong presumption of payment even between the original parties, and the presumption is vastly stronger when the rights of other persons are involved. Indeed, it is doubtful whether, as against third persons, testimony is admissible to rebut it: Loverin v. Humbolt Co., 113 Pa. 6. But, assuming that it may be rebutted, it is, like all other presumptions, conclusive until this is done: Loverin v. Humboldt Co., supra; Seiple v. Seiple, 133 Pa. 460; West’s App., 88 Pa. 341; Gray’s Est., 7 W. N. 642; Fleming v. Parry, 24 Pa. 47; Hughes v. Torrence, 111 Pa. 611; Miller v. Wach, 1 N. J. Eq. 214; 1 Jones on Mortgages, § 966. In this case, not only is there nothing to rebut it, but as has already been shown, it has been re-enforced and augmented by the subsequent collusive dealing with the judgment. And if the judgment were not the sham it appeared to be, why did not the terre-tenant show this ?</p> <p>6. As to the suggestion that no presumption of payment can arise in Philadelphia from the entry of satisfaction upon a mortgage, because it is customary here to clear the record after a sheriff’s sale under a mortgage, it is sufficient to say that no such custom is known to exist, but if it did, the suggestion is inapplicable here as there wore no proceedings on the mortgage. The cases cited upon the other side to show that the record is the sole test of divestiture, are radically different from the case at bar, and the word, “ record,” is used in them in a sense that has no analogy in our case, being used in reference to an effort to bring in parol evidence to alter a record as against a person who had no notice of the matters offered to be set up by parol. Coyne v. Souther, 61 Pa. 457, is distinguished also by the fact that the attempt there made was to nullify a judicial act of the prothonotary: Lancaster v. Smith, 67 Pa. 427.</p>

<p>(a) In the construction of its railroad across an unimproved city lot abutting upon a navigable river, the company, as an engineering necessity, erected a bulkhead at the port-wardens’ line, outside its appropriation, under an agreement with the landowner that it should be built without cost or expense to him, in labor or material:</p> <p>1. In the assessment of damages to the land from the location and construction of the railroad, the true test was the difference between the value of the entire lot, as it was immediately before the taking, and the value of what was left of it, after the taking of the part occupied by the company’s appropriation.</p> <p>2. In estimating the value of the lot before the taking, its possible and probable uses were important elements, and might be shown by the opinions of expert witnesses; but the details and cost of improvements, and probable rental afterwards, were inadmissible as independent facts, though such details, as the basis of opinions as to value, were legitimate subjects of cross-examination.*</p> <p>3. Though the availability of the lot for improvements was an element of value, the value of the lot at the time of the taking was the value as it then was, not as it might have been with the improvements; and the value of the rest of the lot after the taking was also its value as it then was, and not as it was when subsequently improved and in use as a wharf properly.</p> <p>4. And both values, before and after the taking, were the general market values of the particular lot, considering such advantages and disadvantages only as were special and peculiar to it, and without reference to the general rise or fall commonto it and oilier neighboring properties, consequent upon the coming in of the railroad.</p> <p>5. The acquisition by the company of its defined appropriation, of itself gave the company no right to erect the bulkhead outside its right of way; and under the terms of the agreement, conferring the right to build it, the benefits to the property caused by the erection of the bulkhead should not be considered as a charge against the lotowner.</p> <p>6. The presence and effect of a sewer outlet on the lot, before the taking, and whether its subsequent removal was due to the construction of the railroad, were questions of fact for the jury; and the record of a recovery of the ground occupied by the sewer, in ejectment by the lotowner against the city, before the taking, was relevant upon the issues of fact thus raised.</p>

<p>1. A statement of claim, averring the employment of defendant by plaintiffs to pay off a mortgage debt, that defendant had in his hands sufficient funds of plaintiffs for the purpose but wrongfully neglected to pay the debt, and the damage to plaintiffs therefrom, contains all the essential elements of a declaration for negligence.</p> <p>2. The evidence being conflicting, and both grounds of defence, the absence of any employment on the part of the defendant, and express direction by the plaintiffs to pay the money to the wrong person, having been submitted, with instruction that if either be found for the defendant he was not liable, the defendant had no just cause of complaint.</p> <p>3. Records, put in evidence by the defendant, showing efforts on the part of the plaintiffs, in relief of their own loss and, therefore, of the defendant’s responsibility to them, and the evidence in regard to the records being undisputed, there was no error in an instruction that they had no bearing upon the case.</p>

January Term 1890, Sup. Ct.; court below, No. 12 June Term 1886, E. D., C. P. On March 17,1886, judgment was entered in the court below, in favor of J. P. Hale Jenkins, trustee, etc., upon the following instrument: $1,500.00 March 17, 1886. On demand, I promise to pay to J. P. Hale Jenkins, trustee for my creditors, or order, the sum of fifteen hundred dollars, without defalcation, for value received.

<p>APPEALS BY J. W. IRWIN ET AL. FROM THE COURT OF COMMON PLEAS AND THE ORPHANS* COURT OF MONTGOMERY COUNTY.</p> <p>July Term 1890, Sup. Ct.; courts below, No. 19 December Term 1886, C. P.; number and term in O. C. not shown.</p> <p>N. Adeline Irwin having filed ber second account as executrix of the will of Ninian Irwin deceased, Mr. Jacob V. Cfotwah was appointed auditor by the Orphans’ Court, to pass upon certain exceptions filed to said account, and to make distribution of the moneys in the hands of the accountant.</p> <p>Soon after the appointment of tbe auditor, to wit, on October 12, 1886, suit was brought against tbe accountant in the Court of Common Pleas, by Hannah Woods to tbe use of J. W. Irwin, and Milton Stewart, trustee, for the recovery of the value of certain railroad bonds alleged to have been loaned to tbe decedent by Hannah Woods and not returned. On November 28, 1886, the plaintiffs’ declaration was filed, averring a borrowing from Hannah Woods by Ninian Irwin of bonds of the Danville etc. Railroad Company of the face value of $5,000, on October 2, 1874, with a promise to return tbe same in three months from that date; and a like borrowing of other bonds of the same company of the face value of $10,000, on October 15, 1874, to be returned in six months thereafter; averring also breaches of the promises to return the bonds, to the damage of the plaintiffs in the sum of $15,525. On the same day a rule upon the defendant to plead was issued. On November 26, 1886, there was placed on file a written agreement, dated November 24, 1886, signed by the respective counsel of tbe plaintiffs and the defendant, whereby tbe defendant, N. Adeline Irwin, executrix, etc., confessed judgment in favor of the plaintiffs for $15,525, with costs of suit; and judgment was entered accordingly.</p> <p>The first sitting of Mr. Gotwals as auditor in the estate of Ninian Irwin, deceased, was held on December 28, 1886. At that meeting, the judgment confessed by the executrix in favor of Hannah Woods, for use, etc., was presented as a claim against the estate. The allowance of the claim was objected to by another judgment creditor, upon the ground that the judgment was obtained for a debt that was barred by the statute of limitations at the time of its confession, and that it was not good as against, the creditors of the decedent. Some testimony was then taken showing that in 1881, before Mr. J. Wright Apple, who had been appointed auditor to make distribution upon the first account of the executrix, the Woods claim was presented for allowance; that it was noted upon the auditor’s minutes, and certain receipts, evidencing the loaning of the bonds to Ninian Irwin and his engagement to return them, one of which had indorsed thereon an extension of the time of return to June 1, 1875, were copied in those minutes, but that this claim was not passed on in the former audit, an agreement of all parties having been made that the entire fund then for distribution shopld be awarded to one of the creditors as a preferred claimant. A second sitting was held by auditor Gotwals on July 11, 1887, after which proceedings before him were suspended.</p> <p>On August 1, 1887, J. M. Albertson and George N. Corson, judgment creditors of Ninian Irwin, deceased, filed a petition in the Court of Common Pleas, reciting the prior proceedings in the Orphans’ Court and before the auditors, and averring that the suit of Hannah Woods, for use, etc., against the decedent’s executrix was instituted, and judgment was confessed therein in favor of the plaintiffs, for the express purpose of preventing the petitioners, as creditors, from pleading the statute of. limitations or making any other legal defence they might have against the allowance of the Woods claim out of the decedent’s estate; that said claim was long since barred by the statute of limitations, and therefore the institution of the suit, the confession of judgment therein, and the presentation of the same before the auditor were a fraud upon the petitioners and an injury to their rights as creditors; that the entire proceedings in the suit were without any notice to them, and the judgment, if allowed to stand and participate in the distribution of the estate, would be “ a great fraud upon the petitioners, by preventing them from making the defence of the statute of limitations, or any other defence against said claim which may legally exist; ” praying that the judgment might be opened and the petitioners allowed to defend against a recovery upon said claim; that an issue would be awarded to determine whether the claim was barred by the statute of limitations at the time of issuing the summons in the suit, and whether the plaintiffs had any legal claim against the decedent’s estate; and for general relief.</p> <p>Upon the filing of this petition, a rule to show cause why the judgment should not be opened and an issue awarded as prayed for, was granted against objection by the plaintiffs’ counsel; exception.1</p> <p>On October 10, 1887, the plaintiffs in the judgment, filed an answer in response to the rule, making the following averments :</p> <p>1. The said court has no jurisdiction to take any action upon said petition.</p> <p>2. The above recited judgment was obtained after suit brought for a just and legal claim then existing and not barred by the statute of limitations, as alleged in said petition.</p> <p>8. The allegations of fraud in the confession of said judgment are denied absolutely, the said judgment having been regularly and honestly obtained for an honest and valid claim against said decedent’s estate, without any intention to defraud said petitioners.</p> <p>4. The other facts alleged in said petition are not admitted, but due and legal proof thereof is demanded.</p> <p>After argument, apparently upon petition and answer, the court, Yebjkes, P. J., 7th district, specially presiding, on January 7, 1888, filed the following opinion:</p> <p>If it had not been for the bringing of this suit in the Court of Common Pleas, and the confession of judgment thereon by the defendant executrix, there is no doubt that the statute of limitations could have been interposed in the Orphans’ Court, to the claim. Yorks’ App., 110 Pa. 69, has settled this beyond controversy. This application, however, is in the Common Pleas, where the judgment was confessed and entered. It is conceded that the estate is insolvent.</p> <p>It is no longer a matter of dispute that a judgment by confession should be opened to admit the plea of the statute of limitations, and for that purpose alone: Herman v. Rinker, 106 Pa. 121; Sossong v. Rosar, 112 Pa. 200; Ellinger’s App., 114 Pa. 605. In Sossong v. Rosar, Mr. Justice Green says: “ It is a very long time since this court ceased to regard the plea of the statute of limitations as an unconscionable plea. We have commended it as a meritorious defence, and have described it as a statute of repose tending to the peace of families and the quieting of titles. The courts, both of England and this country, including this court, have carried it into the equity practice and followed the law in all analogous cases, upon principles of the soundest public policy.” He describes it as “ a perfectly lawful and proper defence.” In Ellinger’s Appeal, it is said that under recent decisions it is a good cause for opening a judgment and letting a defendant into a defence that prima facie at the time of entry of judgment the claim was barred by the statute of limitations.</p> <p>It is said that an executor or administrator is not bound to plead the statute. This proposition has frequently been affirmed by the highest authority. The cases are collected in Ritter’s App., 28 Pa. 95, and it was there said that when the parties in interest made no objection, the executor was clothed with a discretion; and if he paid a claim, interested parties appearing to take no interest in the estate, he would be deemed as having acted as their trustee and agent, and he would not be liable for the money thus paid, although the claim was barred by the statute of limitations. That was a solvent estate.</p> <p>That case, however, seems to qualify the above proposition where the estate is insolvent, and approves Kittera’s Est., 17 Pa. 416. The latter case says: “ At a time when the statute of limitations was viewed with disfavor, it was held that an executor or administrator was not bound to plead it. This rule was only applicable to actions in which the personal representative of the decedent was intrusted with the management of the defence and in which the pleading was necessarily regulated by Ms own discretion. It has no place in a proceeding before the Orphans’ Court, where the parties lawfully entitled to the fund are recognized as having a standing in court, and must, as a consequence of that condition, be permitted to protect their respective interests in their own way. It follows, that where the fund is not sufficient to pay all, each creditor has a right to oppose any other claimant, by showing payment of the debt, that it is barred by the statute of limitations, that the lien has expired (if the claim be upon the fund arising from the sale of real estate), or any other defence exists against it, and these rights do not depend upon the will of the personal representative of the decedent.”</p> <p>I have quoted this case at some length, as it seems to show that Yorks’ Appeal did not cut up the only anomaly in the law as to the right to present “ a perfectly lawful and proper defence ” in these respective courts; for it appears that while the rights of creditors to oppose any of the defences named in the Orphans’ Court, do not depend upon'the will of the representative of the decedent, he may yet step across into the office of the prothonotary of the Court of Common Pleas, and secretly confess a judgment upon a claim pending in the Orphans’ Court, and forever bar the creditors from setting up a defence which they might successfully interpose, in the Orphans’ Court, despite anything he might do.</p> <p>It has undoubtedly been declared, frequently, that creditors can attack a judgment collaterally only for collusion or fraud, and it is said, even, that this is fortunately well settled, the reason for it being that it is the logical and inevitable consequence of the conclusive effect of the judgment of a court of competent jurisdiction. Yet it is elsewhere said that there is a distinction between a judgment obtained in due course of law and one obtained by consent of the debtor. The law presmnes the former to be founded upon a valuable consideration and rendered for a just debt, but indulges no such presumption in favor of the latter: Bump on Fraud. Conv., 539. But, notwithstanding the positive assertion of the rule of law that a judgment cannot be attacked by creditors except for fraud or collusion, we are made to doubt whether such is the law, without qualification; for the same cases which assert this rule, do so with a degree of reservation.</p> <p>In Lewis v. Rogers, 16 Pa. 21, C. J. Gibson said: “ A debt- or, or his representative, may have a judgment against him opened on grounds laid, and when let into a defence on the merits, reduce or discharge it. Nor will I say that if he were to refuse to move for the benefit of his creditors, they would not be permitted to move in his name. An insolvent man is not suffered to give away his property by means of a judgment which, though proper at first, has become a security for less than the amount of it.” In Clark v. Douglass, 62 Pa. 416, Justice Shabswood said: “ No doubt creditors might show that a debtor, who had a good defence and ground for opening a judgment confessed or by default, pertinaciously and wilfully refused to make application or allow his name to be used for that purpose, for it would be very cogent evidence that if the original judgment was not collusive, it was kept on foot for the purpose of defrauding them. Indeed, I am not sure that a court in the exercise of their equitable powers would not in such a case allow the creditors to come in, open the judgment and take defence in the name of the defendant; such appears to have been the opinion of Chief Justice Gibson.” After quoting Lewis v. Rogers, supra, he proceeds: “Nothing can be more just, consistent and symmetrical than the system of administering the law here indicated; for, while it gives a remedy for every wrong, it saves the records of the court from the strange anomaly of a judgment found by the verdict of a jury to be a fraud upon the defendant, yet standing as a perfectly valid security which can be enforced against him.”</p> <p>These declarations are indicative of the purpose of the Supreme Court to declare, when occasion should demand it, that to be the law which so evidently ought to be the law. If such be the law, is it applicable to the facts of this case ? They do not present exactly the case put by Justice Shabswood, of a pertinacious and wilful refusal to apply to open a judgment, but in our opinion a state of facts equally as objectionable upon the part of one, who, as the'trustee and agent of creditors, should give them a fair opportunity to be heard in contesting rival claims, and who should not take positive steps to obstruct an investigation. After a settlement had been filed showing a balance for distribution, and the appointment of an auditor by the Orphans’ Court, this claim, which, singularly enough, it is now alleged had already been legally established in the Orphans’ Court, was put in suit in the Common Pleas, and the executrix confessed judgment under circumstances that point to a degree of haste not required for any apparent purpose.</p> <p>In explanation, it is said that the claim had been presented at a former audit, unobjected to by creditors, and was believed to be just, and the judgment was confessed to save costs. So far as the record shows, although the claim was presented before a former auditor in the same estate, it does not clearly appear that the creditors had an opportunity to object to it, the auditor’s report being very unsatisfactory, if not worthless, for the purpose of showing what occurred before him. It seems that the only fund then for distribution was the proceeds of realty, which by agreement was awarded to a single creditor, and consequently no further account was taken of the other claims. Had there been a request, no doubt an auditor’s meeting could have been held before the claim was disposed of in the Common Pleas. Shortly after the judgment was confessed, and long before the suit could have been prosecuted to judgment by the ordinary course of law, a meeting was had, when the claim could if unobjectionable have been readily established. In the meantime, the costs would have been trifling. The successive and rapid steps to obtain a result easier of accomplishment, and actually asserted to have been accomplished in the Orphans’ Court, unobstructed, in fact facilitated by the executrix, whose present attitude shows a decided disinclination to take any step to relieve the creditors from the predicament her act has placed them in, would appear to be at least as cogent evidence as that which Justice Shauswood in Clark v. Douglass thought showed either collusion or fraud.</p> <p>But it is not charged by the petitioners, as we understand them, that there was actual fraud, and they do not ask us to grant an issue to determine whether there was such fraud, under the proper practice. They disclaim any belief that counsel in the case would have permitted this. But, they urge that, while the purpose may have been to protect or favor a particular creditor by legal means, yet the deprivation of the right which they clearly had, in the Orphans’ Court, to plead the statute of limitations, amounted to a legal fraud upon them; they assert, however, that the circumstances of the case and the history of the change in the law as wrought by the decision of Yorks’ Appeal point conclusively that the intention was to avoid, in a legal way, the effect of that decision.</p> <p>Whether such was or was not the intention, it undoubtedly is the result, unless this judgment can be opened. As every sane person is presumed to intend the natural and probable consequences of his own deliberate act, it would seem that such must have been the intent. But in an inquiry into legal fraud, the intent is immaterial. The entire innocence of the act may be conceded; what are the consequences ? is the inquiry. Fraud in law consists in acts which, though not fraudulently intended, yet as their tendency is to defraud creditors, if they vest the property of the debtor in his grantee (or beneficiary), are void for legal fraud: McKibbin v. Martin, 64 Pa. 352. It includes such contracts or acts, as, though not originating in any actual evil design or contrivance to perpetrate a fraud, yet by their tendency to deceive or mislead others, or to violate private or public confidence, are prohibited by law: See also 1 Story’s Eq. J., 7.</p> <p>It is a very serious question, in the light of recent decisions, whether an executor is not now bound to plead the statute of limitations, and, considering the favor with which the plea is now regarded by the courts, whether it was not the legal duty of the executrix of the estate of Ninian Irwin, under the peculiar circumstances of the case, to plead the statute, or to refrain from confessing judgment, and to await the approaching auditor’s meeting, when an opportunity for all the creditors to have a hearing in the Orphans’ Court would have been given. Equity ought to require this. When she voluntarily and, as we think, hastily confessed the judgment, it was a violation of that confidence which the creditors had a right to repose in and expect from her, in her official character as executrix. In England, it is said that in all cases of this nature where the consideration is a pre-existing debt, the whole transaction must be free from doubt: May on Fraud. Conv., 110.</p> <p>It should be kept in mind that this case differs from those cases in which one creditor may be preferred by a confession of judgment, although it be made with the purpose and effect of defeating another equally meritorious. In those cases, it is said the injury to one is an incident necessarily flowing from the legal protection of the other, who could not otherwise be protected. Here the creditors did not stand upon an equality. The claims of the petitioners appear to be valid and entitled to participate in the fund, while that of the plaintiff was prima facie subject to a defence which was a legal, meritorious and complete bar. By the confession of judgment the creditors were deprived of their legal right to plead this. I cite a distinction which was made in a case of somewhat similar character: Forrester v. Hanaway, 82 Pa. 224. We do not understand that, in the cases of Lewis v. Rogers and Clark v. Douglass, C. J. Gibson or Justice Shabswood regarded actual fraud as the ground for their assertion that it becomes a duty to let a creditor in to make a defence, where the debtor wilfully refuses to make the application. Nor does C. J. Gibson base his expression upon fraud at all.</p> <p>It is urged that there should not be an issue granted in this case, because the facts will show that the claim is not barred by the statute. Such a question is within the province of a jury and the court cannot dispose of it. At the argument, the counsel for plaintiff stated that had the statute been pleaded before the first auditor, the plaintiff was prepared to show payments on account to toll the running of the statute. The record shows that the judgment was confessed for the full amount claimed in the declaration. Subsequently, counsel explained this statement by saying that it was not intended to be understood as referring to payments which would reduce the amount of the judgment as it appears of record, but that it referred to payments of interest not included in the judgment. Counsel for the petitioners have frankly accepted this explanation as embracing what was meant to be said. The omission at the argument to qualify the statement was evidently an inadvertent mistake. Thus qualified, the statement made at the argument becomes unimportant as an admission to affect (as it otherwise would) the merits of the controversy in this case.</p> <p>It is further said, on behalf of the plaintiff, that the record shows that the claim was duly established and the running of the statute tolled by virtue of the proceedings before the first auditor, J. Wright Apple, Esq. It is possible that there may be proof to sustain this position before a jury, but we cannot find so from the facts before us. The claim appears to have been presented at a time when there was no fund for its payment. A memorandum of its presentation was made by the auditor, which, now appears inserted between two pages of the testimony of a witness who was examined as to other matters. It is clear it was not presented in the order which the report shows. At the next meeting, the entire fund was allotted to another creditor by agreement. Naturally, the creditors had every reason to await an opportunity to investigate and make them full objection at the next meeting of the audit, when the claimant might have some standing against the fund for distribution. They were deprived of that opportunity, as we think, by a breach of duty and confidence on the part of the executrix.</p> <p>We are of opinion that, under the facts of the case, the plea of the statute of limitations being a meritorious, commendable, legal and proper defence, injustice would be done the petitioners should we allow the conduct of the defendant in confessing and in neglecting and refusing to apply to open the judgment, to deprive them of their legal right to use the plea.</p> <p>And now, to wit, January 7, 1888, it is ordered that the judgment be opened and that the defendant be let into a defence, the petitioning creditors having permission to appear in the name and behalf of the defendant and to make defence to the suit. It is further ordered that an issue be framed upom the declaration now on file, to which the plea of non-assumpsit infra sex annos, and payment with leave, etc., may be entered; exception.8</p> <p>—An issue formed in accordance with the order therefor, was tried on October 15, 1888, before Weand, J.</p> <p>Before commencing the trial, counsel for plaintiffs moved that the decree opening the judgment and granting the issue be vacated, because the court had no jurisdiction to open the judgment and grant the issue as framed in the case.</p> <p>By the court: Motion overruled; exception.3</p> <p>The plaintiffs then made an offer to prove the loan to Ninian Irwin of the bonds mentioned in the declaration, and that he fraudulently assigned them and put them out of his possession, so that he could not comply with the obligation given for their return, but that no notice thereof was given to Hannah Woods until after his death; to be followed by evidence that this claim was presented to the executrix of Ninian Irwin, shortly after his death in 1877, and was conceded by her to be correct; that it was presented in June, 1881, and proved without objection before an auditor in the estate of said decedent, and that there was a persistent and continued demand upon the executrix for this money; and suit was threatened and at her request suit was postponed, because the claims were admitted to be correct and just, and there was no reason why the expense and inconvenience should be incurred.</p> <p>Objected to.</p> <p>By the court: Offer overruled; exception.4</p> <p>No further testimony being offered, the jury by direction of the court, returned a verdict for the defendant. A rule for a new trial having been discharged, judgment was entered on the verdict.</p> <p>On January 3,1889, the proceedings in the Orphans’ Court before the auditor, Mr. Gotwals, which had been suspended pending the above stated proceedings in the Court of Common Pleas, were resumed, and the record of the proceedings relative to the opening of the judgment was put in evidence. The auditor subsequently reported that the controversy respecting the Woods judgment was ended by the final verdict in the Court of Common Pleas, by which that judgment was declared invalid and set aside. He accordingly disallowed the claim thereon.*</p> <p>Exceptions to the report were dismissed by the court, Weand, J., and the report confirmed.</p> <p>Subsequently J. W. Irwin, and Milton Stewart, trustee, took the appeal at No. 100 July Term 1890, from the Court of Common Pleas, assigning for error therein:</p> <p>1. The order granting the rule to open the judgment.1</p> <p>2. The order opening the judgment and granting an issue.8</p> <p>3. The refusal of plaintiffs’ motion.3</p> <p>4. The refusal of plaintiffs’ offer.4</p> <p>They also took the appeal at No. 101 July Term 1890, from the Orphans’ Court, specifying, inter alia, that the court erred:</p> <p>1. In confirming so much of the auditor’s report as disallowed the claim of the appellants.</p> <p>1. In the petition to open the judgment, fraud was not charged directly or indirectly, but by inference only. But fraud, as a ground for avoiding a decree, must be averred distinctly and positively, and not left to be inferred from circumstances: Groff v. Groff, 14 S. & R. 181; Kensington etc. Turnpike Co., 97 Pa. 260 ; Hostetter v. Pittsburgh, 107 Pa. 419. The petition was not sustained by evidence. The allegations from which fraud was to be inferred were denied by the answer, and it was necessary for the petitioners to present evidence clearly supporting them: Horton v. Weaver, 39 Leg. Int. 99. But, even though a claim be barred by the statute of limitations, a judgment confessed therefor cannot be attacked by other creditors: Keen v. Kleekner, 42 Pa. 529; Brown’s App., 86 Pa. 524. Creditors by proving collusion may avoid the effect of a judgment as to themselves, but they can attack it collaterally for collusion only: Meckley’s App., 102 Pa. 536; Clark v. Douglass, 62 Pa. 408; Second N. Bank’s App., 85 Pa. 528; Thompson’s App., 57 Pa. 175; Dougherty’s Est., 9 W. & S. 189; Sheetz v. Hanbest, 81 Pa. 100; Lennig’s App., 93 Pa. 801; 1 Tr. & H. Pr., § 803 et seq.; Drexel’s App., 6 Pa. 272.</p> <p>2. The practice is to try collusion by a collateral issue, but matter of defence which the defendant has a right to set up, by an issue in the cause: Gallup v. Reynolds, 8 W. 424. The petitioners did not ask for an issue to determine whether the judgment was collusive, so that they might avoid its effect as to them while it would remain valid as to the defendant, the executrix and devisee of the decedent; but, strangers to the judgment, they asked that it be opened to determine whether the defendant by asserting a statutory defence could escape payment of the demand. The judge below, perceiving the difficulty in their way, attempted to avoid it by introducing a new practice: he opened the judgment and awarded an issue framed upon the original declaration, with pleas of nonassumpsit infra sex annos and payment with leave. To justify this course, the court held that there is a distinction between a judgment obtained in due course of law and one obtained by the consent of the debtor. This court has held exactly the contrary: Clark v. Douglass, 62 Pa, 408; Lennig’s App., 93 Pa. 301.</p> <p>3. The dieta quoted by the court below from Lewis v. Rogers, 16 Pa. 18, and Clark v. Douglass, supra, refer to a state of facts not appearing in this case. This claim was presented before an auditor in 1881 and not objected to. The appellants never objected to it until December 28, 1886, and their first objection to the judgment was when they filed their petition to open it. They never requested the executrix to contest the claim, or to apply for the opening of the judgment; and there is no pretence that the claim was not valid at the time of the decedent’s death, and entitled then to share in a distribution of the estate. The attempt of the appellants is now to obtain a larger proportion of the estate than they were entitled to at 'the death. But it is settled that an executor is not bound to plead the statute against a just debt, if the parties in interest have not notified him to do so: Ritter’s App., 23 Pa. 95; Fritz v. Thomas, 1 Wli. 66; McFarland’s Est., 4 Pa. 149; Smith v-Porter, 1 Binn. 209; Steel v. Steel, 12 Pa. 64. This rule is unaffected by Yorks’ App., 110 Pa. 69. It cannot bo a fraud on other creditors to confess judgment for a valid debt: Keen v. Kleekner, 42 Pa. 529: Second N. Bank’s App., 96 Pa. 460; Lennig’s App., 93 Pa. 301; Second N. Bank’s App., 85 Pa. 528; Miner’s Trust Co. Bk. v. Roseberry, 81 Pa. 309. See. also Thompson’s App., 57 Pa. 175.</p> <p>4. The court erred upon the trial in not admitting our offer. If this had been done, we would have shown that the decedent fraudulently converted the bonds loaned to him, and that this fraudulent conversion was not discovered until after his death. The time when the statute began to run would then be for the decision of the jury, upon the question when the fraud was, or could reasonably have been discovered: Hughes v. Bank, 110 Pa. 428; Bricker v. Lightner, 40 Pa. 199; Morgan v. Tener, 83 Pa. 305; Wickersham v. Lee, 83 Pa. 416. In ruling out the testimony, the court held that the presentation of the claim to the first auditor did not toll the statute. This court has never decided that question: Irwin’s Est., 133 Pa. 1. It has decided that the award of a dividend upon a claim will do so: Reber’s App., 125 Pa. 20. The statute applies in terms to suits in the Court of Common Pleas, and it is applied in the Orphans’ Court by analogy. In the former, the mere bringing of a suit, without filing a declaration, tolls the statute : Hemp-bill v. McClimans, 24 Pa. 367. Therefore, whatever action in the Orphans’ Court is analogous to the bringing of a suit, must have the same effect. The presentation of the claim to the court or an auditor is strictly analogous to issuing a summons.</p> <p>The power to open a judgment has never been denied in Pennsylvania, and it is controlled only by sound discretion: Earley’s App., 90 Pa. 321; Wernet’s App., 91 Pa. 319. It is within the discretion of the court to open a judgment to permit the statute of limitations to be pleaded: Herman v. Pinker, 106 Pa. 121; Sossong v. Rosar, 112 Pa. 197; Ellinger’s App., 114 Pa. 505. That defence is a meritorious one: Sossong v. Rosar, 112 Pa. 197 ; and creditors have the right to plead it: Ritter’s App., 23 Pa. 95; Kittera’s Est., 17 Pa. 416. It is not the law that the executor of an insolvent testator, by confessing a judgment in the circumstances of this case, can make that which, the law declares to be no claim, good against the other creditors and render them powerless to prevent its allowance : Lewis v. Rogers, 16 Pa. 21; Ritter’s App., 23 Pa. 95. As was held in the cases cited, creditors can move if the executor refuses to do so. What stronger refusal to protect them can there be than a hasty confession of judgment upon a barred claim, in order that it may be used in another court where its validity cannot be questioned? The appellants have argued the case as if it were necessary to establish collusion or fraud by actual proof. But this is unnecessary, for fraud in law is just as obnoxious and hurtful as fraud in fact: McKibbin v. Martin, 64 Pa. 352; 1 Story Eq. Jur., c. 7.</p>

<p>APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS OF CHESTER COUNTY.</p> <p>July Term 1890, Sup. Ct.; court below, number and term not shown.</p> <p>On May 6, 1889, Carroll S. Tyson and William H. Reeves, trustees, brought assumpsit against James R. Eyrick, to recover $4,000, with interest from November 22, 1888, alleged to be due from tbe defendant as a balance of purchase money upon a parol contract for the sale of a lot of ground in Phosnixville. Tbe defendant pleaded non-assumpsit, payment and set-off. Afterwards, tbe plaintiffs put on file a deed from themselves to the defendant, for tbe lot alleged to bave been sold to him.</p> <p>At tbe second trial, on May 14, 1890, the following facts were shown:</p> <p>Tbe Pbcenix Iron Company was the owner of a piece of ground in Phcenixville, fronting on the east side of Main street and bounded on tbe north by property of the Farmers & Mechanics’ National Bank, on tlie east by other land of said iron company, and on the south by property of the estate of Thomas Shaffer, deceased. The legal title was vested in the plaintiffs, as trustees of the iron company.</p> <p>On September 1, 1888, the defendant, having made application to William H. Reeves, one of the trustees, to purchase the said lot, and having been referred to Armory Coffin, the chief engineer of the company, concluded with him a contract for the purchase of the lot for $6,000 ; $500 to be paid in hand, $1,500 when the title papers were prepared, and the remaining $4,000 to be secured by bond and mortgage, payable in one year or sooner at the will of the purchaser. The contract was a verbal one, but Coffin at the time made a memorandum of the terms in his note book. The defendant on that day paid $500 on account of the purchase money. A map of the company’s properties, kept in their office, showed a ten-foot alley in the rear of this lot, in continuation of a similar alley at the bank lot, the right to the use of which had been conveyed to the bank by the plaintiffs along with the latter lot. In the negotiations between the defendant and Coffin, that map was not produced or referred to.</p> <p>The defendant testified that both Reeves and Coffin told him that the dimensions of the lot sold to him were 50 by 100 feet, and that it would not be sold to him except upon the stipulation that the building he proposed to erect should be constructed of brick. He testified, also, that he explained to them the character of the building he proposed to erect. These allegations were in part denied by Reeves and Coffin.</p> <p>About six weeks after the making of the contract, the defendant, having taken possession of the lot and done some work thereon preparatory to the erection of a double brick house, requested Coffin to mark, the boundaries and to designate the centre line, so that the partition wall of the building might be located. Coffin thereupon went upon the ground and proceeded to mark the lines in the defendant’s presence. Upon measuring the frontage of the lot, he found that the distance between the bank’s property line and the fence of the Shaffer lot was about 51 feet. This he was unable to understand, as the iron company’s map of its properties represented the width of the lot in question to be only 50 feet. He supposed, however, that the plaintiffs had title to the entire 51 feet, and proposed to the defendant that the latter take the whole at a proportionate increase of price, but the defendant said he wanted only 50 feet, and left it to Coffin to locate the 50 feet to be sold.</p> <p>Coffin located it so as to adjoin the line on which the Shaffer fence stood, leaving the surplus strip of one foot, to be excluded from the sale, on the side next to the bank property, and located and marked the centre line of the 50 feet accordingly. In measuring the depth of the lot, Coffin measured off a distance of 100 feet from Main street, and then, seeing that this distance would carry the lot past the end of the bank lot, came back five feet, and marked the rear line of the defendant’s lot 95 feet from Main street.</p> <p>The defendant then proceeded to erect his building. His plan was to occupy 44 feet with the double building, leaving at each side of the lot a passage way three feet in width, as a means of access from the street to the rear; and his foundation walls were located in accordance with this design. After the building had been commenced, it was discovered that the Shaffer lot extended one foot north of the fence above mentioned, and that the plaintiffs had title to only 49 feet of the ground staked off by Coffin as sold to the defendant. At this time, the foundation walls had been built. The plaintiff's endeavored to purchase the one foot of ground from the executors of Shaffer, but were unable to do so. Testimony on their behalf tended to show that they then proposed to the defendant that they would convey to him the 50 feet to which they had title, and at their expense would move his foundation walls one foot to the north, but he said he could not wait to have this done and went on with his building. The defendant denied that any offer to move the walls was made.</p> <p>On November 22, 1888, the defendant paid $1,500 on the contract to the plaintiffs; and on January 21, 1889, tendered to the plaintiffs the remaining $4,000 of the purchase money, accompanying the tender with a demand for a deed conveying the lot as staked off by Coffin. The tender was refused on account of the condition attached.</p> <p>Various efforts were made to effect an adjustment of the difficulty arising out of the mistake that had been made respecting the Shaffer line. At one time the plaintiffs offered tbe defendant, as a compromise, a deed embracing tbe right to the alley in the rear. He declined the offer and insisted that he was entitled by his contract to a conveyance of a lot with a frontage of 50 feet and bounded at the sides by the lines which had been marked by Coffin, and that if title were not conveyed to him accordingly, he would be greatly damaged by reason of the want of an alley of the contemplated width on the southern side of his building. On April 28, 1889, the plaintiffs tendered to the defendant the deed afterwards put on file in this case, and demanded payment or security for the balance of purchase money. That deed described the property conveyed thereby as having a frontage of 50 feet and a depth of 95 feet, and as bounded on the north by the bank lot and on the south by the Shaffer lot. The defendant refused to accept the deed, or to pay or secure the balance of purchase money.</p> <p>The testimony being closed, the court Waddell, P. J., charged the jury in part as follows:</p> <p>The plaintiffs, here, ask at your hands a verdict for $4,000, with interest from such a time as in your judgment they were able to convey to him, or agreed to convey to him, what they were able to convey; while, on the other hand, the defendant says he is entitled to have taken off of the $4,000 whatever in your judgment may have been the injury resulting to him by reason of this error on the part of the plaintiffs.</p> <p>The case, as we view it, thus presents three questions for your consideration: [First, did the plaintiffs sell to the defendant a lot on Main street, 50 feet in front and 100 feet in depth; if so, have they refused to convey such lot, and has the defendant been damaged thereby ?] 5 [Second, did the plaintiffs, through their agent, induce the defendant to mislocate his building whereby he was injured, and if he was so injured by the act of the plaintiffs, what is the standard whereby his damages are to be measured? ] a And, third, if the defendant has been damaged by the refusal of the plaintiffs to convey a lot 100 feet in depth, or because they caused him to misplace his building, can these damages be deducted from the balance of the purchase money still due ?</p> <p>Did the plaintiffs sell to the defendant a lot 50 feet in front and 100 feet in depth ? ... .</p> <p>[You will see, the parties to the contract, who should be able to give us the terms of it, disagree on the point as to the depth of the lot, one asserting the depth was fixed at 100 feet, while the other says nothing was said on the subject. It%ill be your duty to reconcile their testimony, if you can. You must determine from their testimony, and the other testimony in the cause, whether the plaintiffs agreed to convey to the defendant a lot 100 feet deep, bearing in mind that it is incumbent upon the defendant to satisfy you this was a part of the agreement.] 5 If you are unable to say which of these gentlemen can tell you what actually took place, you may call to your aid the probabilities of the case.....If you are in doubt, however; that is, if you are unable to say whether the plaintiffs stipulated to sell a lot 100 feet in depth, you must find this branch of the case against the defendant, because it is his duty to establish this fact to your satisfaction.</p> <p>If, however, you conclude that these plaintiffs agreed to sell this defendant a lot 100 feet in depth, then you must inquire whether they have refused to convey him such a lot. There can be little doubt upon this point. All the deeds prepared and tendered, I think, call for a lot only 95 feet in depth. [If they did agree to sell him such a lot, and have refused to convey it to him, has he been damaged by this refusal ? If he has, you must ascertain, as well as you can from the testimony, the extent of this damage; you must ascertain what inconvenience he suffers with a 95-feet lot, and determine whether it would be removed by a 100-feet lot. He is entitled to be compensated for whatever damages he may have suffered by this default of the plaintiffs, if you determine they are in default, and their default will depend upon whether or not they agreed to sell him a lot 50 feet in front by 100 feet in depth.] 5</p> <p>The next inquiry, gentlemen, demanding your consideration is, did the plaintiffs, through their agent, induce the defendant to mislocate his building? Yery little question, if any, can be made about this. Mr. Coffin staked off the ground, marked the centre line of the building, and the excavation for the cellar was changed to comply with the measurements of Mr. Coffin. The walls were erected according to them. At this point it was discovered that a mistake had been made in these measurements and the building had been located one foot too far south. Was this a mistake made by the agent of these plaintiffs ? Had this defendant anything to do with the location of this building ? His architect did locate it, but this location was changed to correspond with the lines given by Mr. Coffin. [Has the defendant been injured by this mistake ? He proceeded to locate his building in the centre of the lot, so as to have a thrée-feet alley on each side; the lot was to be 50 feet in front, the building was to be 44 feet in front, thus allowing him six feet to be used for the two alleys, or, in other words, give him three feet for each. As the true lines were subsequently ascertained to be, he has four feet of an alley on the north and one of two feet on the south, or nine inches, according to what may be held to be the true line between this lot and the Shaffer property. The line, as conceded by Mr. Coffin, would make this alley two feet; as claimed by Mr. Shaffer it would make it only nine inches. Mr. Eyrick claims that a two-feet alley will not give him the proper access to the rear of his property and will materially affect his enjoyment of the buildings. Has he, in your judgment, as shown by the testimony, been injured by the mistake referred to ? If so, how is this injury to be measured?] a</p> <p>This will depend upon the point of time when they are to be measured. The plaintiffs contend that they must be measured as of the time when the mistake was discovered, while the defendant says the proper measure of damages is the difference in the market value of the property with a three-feet alley on the south and the absence of such an alley. We say to you that in our opinion the true standard is, what would it have cost to correct the mistake at the time it was discovered and notice was given to this defendant, if it could have been then corrected ? It was the duty of the defendant, when he discovered that this error existed, to stop and determine what it was proper to do. All that he did after that he did at his own peril.....</p> <p>When did the defendant discover this mistake? Mr. Coffin tells you that on the tenth day of November he discovered it; that his attention had been directed to it prior to that date by Mr. Ellis, that he had looked into it and satisfied his mind that it was probably so, and that the way to correct this error was to endeavor to purchase this extra foot from the Shaffer estate. He tells you that on the tenth of November he wrote a letter to the trustees of the Shaffer estate, with the permission of the gentlemen whom he represented, requesting to purchase that foot of ground. After that, he says, Mr. Eyrick came down to his office to see what they proposed to do, and he told him they proposed to give him this remedy, if it was in their power, and showed him a copy of the letter which he had written to the Shaffer estate. Mr. Eyrick says that he discovered this error between the sixth and tenth of November.....</p> <p>All this occurs, as he admits, by the tenth of November. It was notice to him, therefore, and it was his duty, as we have said, either to stop his building at that time until this difficulty was adjusted, or, if he thought proper to go on and finish it, he did it at his own risk, and cannot ask these plaintiffs to compensate him for any injury that may have resulted to him after the date of this knowledge. At that time the building was in the condition of having’ the cellar walls up. There can be no question about that..... You must determine, however, what condition the area was in on the tenth of November. No question can be made, it appears to the court, about the conditkm of the cellar of the building. Was it practicable to move these walls one foot farther north ? If it was, then that should have been done, or some other remedy should have been adopted to correct the mistake referred to.....</p> <p>You must determine as well as you can from the testimony, what it would have cost, on the tenth of November, 1888, to move these walls one foot farther north, if it was practicable to do so and that would have corrected the mistake which had been made. [You will, therefore, gentlemen, consider all the testimony bearing upon this point, and ascertain what in your judgment would be a fair compensation to this defendant, on the tenth day of November, for the injury which he has sustained, if he sustained any, by the misplacement of his building.] a</p> <p>We have thus disposed of the first and second questions presented for your consideration. The third is, if the defendant has been damaged by the refusal of the plaintiff to convey a lot 100 feet in depth, or, if he has been damaged because they induced him to misplace his building, can these damages which you find, if you do so find, be deducted from the balance of the purchase money still due ? This is altogether a question of law, and we say to you that if you find that the plaintiffs agreed to convey to the defendant a lot of ground 100 feet in depth and they failed to do so, and the defendant has been injured thereby, or, if you find that the defendant has been injured because he was induced by the plaintiffs to misplace his building, you must ascertain what will compensate the defendant for these injuries, or either of them, and having ascertained this amount jmu are entitled to deduct that amount from the balance of the purchase money still due, four thousand dollars. You will thus ascertain what is due as a net principal to the plaintiffs. We do not see that any circumstances exist that would relieve the defendant from paying interest on the balance due the plaintiffs, as you shall find it.</p> <p>I am requested by both of the parties, gentlemen, to present to you my views upon the law, so far as I have not already done so in my general charge.</p> <p>The plaintiff asks me to say to you:</p> <p>2. The plaintiffs’ agent, in attempting, at the request of the defendant, to mark upon the ground the corners of the lot contracted to be sold, some six weeks after the contract was entered into, and before execution and delivery of the deed of conveyance therefor, was amere volunteer; and if, in so doing, he made an honest mistake, such mistake will not render the plaintiffs liable to the defendant in damages for any real or conjectural depreciation in the value of the building erected, arising from its disadvantageous location upon the lot, even though such disadvantageous location was induced by such mistake, on the part of the plaintiffs’ agent.</p> <p>Answer: We say to you, gentlemen, that if we understand the point, the effect is, briefly, to ask the court to say that under the circumstances of the case the defendant is not entitled to deduct anything by reason of the acts of the plaintiffs. As we have already said to you, we cannot take that view of the law, and we must disaffirm the point.1</p> <p>The defendant asks me to say :</p> <p>1. If the jury believe from the evidence that the contract of sale was for a lot of ground on Main street 50 feet in front by 100 feet in depth, and that the down money was paid and possession given under that contract, and that the plaintiffs now refuse to deed and convey to the defendant a lot of land of greater depth than 95 feet, then the defendant is entitled to deduct from the balance of the purchase money due a sufficient sum to compensate him for the sale of the said five feet.</p> <p>Answer: That we affirm. That is true, as we have already explained it.6</p> <p>2. If the jury believe from the evidence that the failure of the plaintiffs to convey the lot of 50 feet in front on Main street, as staked off by their chief engineer and of which possession was given to the defendant, has resulted in damage and loss to him, he, the defendant, is entitled to set off the amount of such loss and damage against the balance of the purchase money.</p> <p>Answer: That we affirm. You will see, gentlemen, that these points are really recapitulations of the principles which we have already explained to you, and therefore they need no comment at this time.3</p> <p>3. The defendant is entitled to deduct from the purchase money any loss or damage to his property arising directly from the failure of the plaintiffs to convey to him the lot of ground purchased and staked off.</p> <p>Answer: I affirm that point, gentlemen, with the limitation that those damages will, so far as the building is concerned, be rated upon the condition of affairs on the tenth of November.4</p> <p>—The jury returned a verdict for the plaintiffs for $3,375.38. A rule for a new trial having been discharged and judgment entered, the plaintiffs took this appeal, assigning for error:</p> <p>1. The answer to plaintiffs’ point.1</p> <p>2. The parts of the charge embraced in [ ] 3</p> <p>3,4. The answers to defendant’s points.3 4</p> <p>5. The parts of the charge embraced in [ ] B</p> <p>6. The answer to defendant’s point.6</p> <p>1. The first four assignments of error raise the question whether the honest mistake of the plaintiffs’ agent, made without negligence or taint of fraud, with every mark on the ground conducing to it, and having no bearing upon or inducement to the contract, can be relieved against in equity. It was no part of the contract between these parties that the defendant should have possession of the lot before he got his title deed, and in entering into possession in advance of the conveyance he assumed all risks. There were no covenants, express or implied, as to the precise lines of the enclosure, and the mistake made in endeavoring to stake out the lot was corrected before delivery of the title and payment of the purchase money. It was not such a mistake as was a material ingredient in the contract, and it presents no ground for equitable iiiterferenee: 1 Story Eq. J., §§ 141, 151; Miles v. Williamson, 24 Pa. 135.</p> <p>2. Even if the co2iveyance had bee2i made, the plai2itiffs would not have been responsible beyond their covenants, there being no fraud: Noonan v. Lee, 2 Black 499; Patton v. Taylor, 7 How. 132; Rodgers v. Olshoffsky, 110 Pa. 147; Coughenour v. Stauft, 77 Pa. 191. In no event, ca2i damages be recouped for improvements made on the lot. The measure of damages would be the purchase money paid for the portion of the land as to which the title failed: Addison on Cont., 1142; Lewis v. Campbell, 8 Tamrt. 715; Worthnigton v. Warrhrgton, 8 C. B. 134; 4 Kent’s Com., *475; Bender v. Frombei’ger, 4 Dali. *436; Brown v. Dickerson, 12 Pa. 372; Cox v. He2iry, 32 Pa. 18; Terry v. Drabenstadt, 68 Pa. 400; McClure v. Gamble, 27 Pa. 288; Beaupland v. McKee2i, 28 Pa. 124; Kreiter v. Bomberger, 82 Pa. 62; Ottaway v. Ralph, 26 Pittsb. L. J. 123; Waeker v. Straub, 88 Pa. 32; Sausser v. Steinmetz, 88 Pa. 324; Crunkleton v. Wilson, 1 Brown 361; Lanigan v. Kille, 97 Pa. 120. The defendant has sustained no damage apart from the improvements made, and these he persistently refused to change, although they had 2iot proceeded beyond the foundatio2i walls.</p> <p>3. Under the fifth and sixth assignments, we contend that there was nothing to submit to the jury as to the agreed depth of the lot, and nothing could be recouped from the plaintiff’s' claim as damages on that accomit. Eve2i assuming that the lot was spoken of as 50 by 100 feet, it is undisputed that whe2i it came to be measured and staked off, it was staked off to the depth of 95 feet; that the defendant accepted it with its boundaries so designated, and entered into possessio2i and built upon it; that he never made any objectio2i upon the gromid of Í21sufficient depth, and that, whe2i he made his tender and after-wards, his only demand was for a deed conveying the lot staked off to him. This was conclusive of the matter, and the court erred in charging the jury that they might allow the defendant damages on this account, to be defalked from the plaintiffs5 claim.</p> <p>1. The only question raised by the assignments of error is whether the damages arising from the breach of a parol contract for the sale of land, can be set off in assumpsit for the unpaid purchase money. It is conceded that the circumstances were such as to take this contract out of the operation of the statute of frauds. It is admitted that the plaintiffs are unable to convey the lot as staked off by Mr. Coffin, and are unwilling to convey the additional depth of five feet claimed by the defendant. Has he no remedy ? The general rule in such cases is that the purchaser may, if he choose, have the contract specifically performed, so far as the vendor can perform it, and have abatement out of the purchase money, or compensation for any deficiency in the title, quantity, quality, description, or other matters touching the estate: 1 Story Eq. J., §779; Patón v. Rogers, 1 Yes. & B. 851; Hill v. Buckley, 17 Yes. 894; Ketchum v. Stout, 20 Ohio 453; Springle v. Shields, 17 Ala. 297. An action for the purchase money is in effect a proceeding by the vendor for specific, performance, and is governed by the same rules: Nicol v. Carr, 35 Pa. 381. Would not a court of equity allow compensation to the defendant in a case like this ?</p> <p>2. That the plaintiffs contracted to convey a lot, 50 by ,100 feet, bounded at the sides by certain well defined lines, is settled by the verdict. After the defendant had taken possession, the plaintiffs voluntarily interfered and established new lines. A loss to the defendant has occurred thereby, and it must be borne by the parties whose neglect was the occasion of it: Miller v. Browarsky, 130 Pa. 379. The erection of this brick building, occupying 44 feet of the lot, was an essential part of the contract of sale; and one of the chief inducements moving the defendant to make the purchase was that the lot, according to the plaintiffs’ representations, was suitable for the purpose. By the mistake of the plaintiffs’ agent in locating the lines, the southern half of the building has been seriously damaged in value, as it is without access at the side or from the rear. That damage is a good defence pro tanto : Parcel! v. Grosser, 109 Pa. 617. No claim is made to be recouped “for improvements made on the lot.” The claim is not for the value of the improvements, but for damages to improvements by reason of the plaintiffs’ mistake: Miles v. Williamson, 24 Pa. 136.</p> <p>3. The agreement of sale, in this case, was an executory contract ; and the principles applicable to it are different from those which apply to an executed contract, closed by delivery of a deed: Kreiter v. Bomberger, 82 Pa. 59. Some of the later cases permit an equitable defence, even though the contract has been executed and a deed delivered: Goettel v. Sage, 117 Pa. 298. It is too late to urge now that it was no part of the contract that the defendant was to have possession. Possession was taken with the knowledge and consent of the vendors, and the improvements were erected in part performance of the agreement of sale. The possession was such as would have disabled the plaintiffs from conveying to any other person: Kine v. Balfe, 2 Ball & B. 174; Pugh v. Good, 3 W. & S. 61; Lord’s App., 105 Pa. 451. The different deeds executed by the plaintiffs are evidence of their understanding of the terms of the contract : Hart v. Carroll, 85 Pa. 512. Those that preceded the execution of the one tendered to the defendant, described the ■lot with reference to a plot, and included the use of an alley which is omitted from the latter. A depth of 100 feet would give the defendant access to that alley.</p>

APPEAL BY PLAINTÍEE FROM THE COURT OE COMMON PLEAS OE CHESTER COUNTY. January Term 1891, Sup.

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF CHESTER COUNTY.</p> <p>January Term 1891, Sup. Ot.; court below, No. 60 January Term 1890, C. P.</p> <p>On August 12, 1889, tbe borough of Phosnixville presented its petition to the Court of Quarter Sessions for the appointment of viewers to assess damages for the opening of Fourth Avenue, under the act of April 22, 1856, P. L. 525. The viewers filed their report on October 28, 1889, and on November 25th, Joseph C. Whitaker appealed therefrom to the Court of Common Pleas, under the act of June IB, 1874, P. L. 283. Thereupon, an issue was directed wherein the said Whitaker was plaintiff and the said borough defendant.</p> <p>At the trial, on February 25, 1890, it was shown ¿bat on June 7, 1887, an ordinance was enacted by tbe burgess and council establishing Fourth Avenue from Starr street to Nutts Avenue, crossing Main street between them; that at this time Josepk C. Whitaker, the plaintiff, was the owner of three lots of ground fronting on Main street, each 50 feet in front by 175 feet in depth, and numbered respectively 23, 24, 25, 26; that the street, as established by the ordinance, occupied the whole of lot 23 and ten feet of lot 24; that the plaintiff then divided his remaining property into three lots, each having a frontage of 46 feet, and on July 14, 1888, conveyed two of them to Minnie Caswell, one of those conveyed being described as follows: “ Lot No. 1: Beginning at a corner, at the intersection of Main street and Fourth Avenue and thirty feet distant from the centre line of said street, thence along the south side of Fourth Avenue thirty feet distant from the centre line of the same, south eighty-two degrees west, one hundred and seventy-five feet to a corner,” etc.; and that, thus, at the date when the petition for the appointment of viewers was presented, the plaintiff owned no ground abutting on said Fourth Avenue, and, of his original holding, ouly a part of lot 26, separated from Fourth Avenue by the property conveyed to Minnie Caswell.</p> <p>The plaintiff, called as a witness, was asked: “ Q. In selling your lot to Mr. Caswell, you sold it as a corner lot ? A. Well, it was an ordained street; I could not get out of it..... Q. But, as a fact, you did represent and sell it as a corner lot ? A. I do not know that I represented it as anything. It was a corner lot, he knew that; he knew the street was ordained.” Mr. Caswell, who negotiated the purchase of the lot for his daughter, testified: “ Q. Did he make any difference in any of this 47 feet? A. $200 more for the corner lot. Q. You paid $1,400 for the 47 feet on the corner, and $1,200 for the other? A. Yes, sir.”</p> <p>At the close of the testimony, including that upon the subject of damages, the court, Waddell, P. J., charged the jury in part as follows:</p> <p>Now, you will bear in mind that it is your duty, in estimating these damages, to take into consideration the advantages as well as the disadvantages sustained by Mr. Whitaker, and thus, if possible, ascertain whether there is any balance on the one side or the other. If the advantages should exceed the disadvantages, I do not understand that you are called upon to compute them; bat if the disadvantages exceed the advantages, then you must compute the disadvantages, and thus ascertain what is due and payable to Mr. Whitaker on this account.</p> <p>[At the time this street was thus ordained and dedicated by the borough to public use, Mr. Whitaker was the owner of 200 feet of ground fronting on Main street. Fourth Avenue intersects Main street, and as I understand it, passes along the southern line of these 200 feet. The 140 feet left after this street had been dedicated, which street was 60 feet wide, belonging to the Whitaker estate, all lay south of this avenue. This was the condition of things when the borough dedicated this street to the use of the public; and, in the opinion of the court, you will consider the condition, or you will consider Mr. Whitaker’s rights as of that time. It is intimated here that he is entitled to be paid for the ground occupied by this street, inasmuch as he owns no other ground appurtenant to the street. It is undoubtedly a principle of law that where a gentleman is the owner of a lot of groxmd in a town like Phoenixville, say 60 feet in width facing on a principal street, and, by reason of the opening of a cross street, the borough thinks it its duty to the public to take that whole lot thus belonging to the gentleman, as you will see his lot is blotted out; there are no advantages to be computed, he has nothing left; they have dedicated to the public all the ground that he owned, and he is entitled to be paid for that ground just what it is worth. You will see that there cannot be any advantages estimated in such a case. But, in the opinion of the court, that is not the principle applicable to this case. At the time this street was dedicated to the public, Mr. Whitaker was the owner of 200 feet of land adjoining and appurtenant to the street thus laid out by the borough; and you are to take into consideration whether or not this street, thus dedicated to the public, has been of any advantage to him so far as the 200 feet are concerned, or, in other words, so far as the remaining 140 feet may be concerned. In the opinion of the court, that is the principle applicable to this case, and you will apply the evidence which has been furnished you to that principle.] 3.....</p> <p>The plaintiff has asked me to consider some points which have been reduced to writing:</p> <p>1. In assessing the damages, the jury can only have regard to the advantages and disadvantages caused to the several parties along the line of and adjoining Fourth Avenue. The advantages accruing to the lot owned by the plaintiff, situated on Main Street and separated from said Fourth Avenue by 98 feet, cannot be taken into consideration; regard is only to be had to the tract of land through which Fourth Avenue runs, and not to the person of the owner.</p> <p>Answer: That would be true and correct, if, in the estimation of the court it was applicable to this case; that is, you could only take into consideration and assess the damages for properties abutting on Fourth Avenue. But, as you see, in the estimation of the court we regard Mr. Whitaker’s property as all abutting on Fourth Avenue, the 140 feet, and not exclusive of the balance, I think it is some 47 feet, that is left. I would affirm the point on general principles, but I do not think it is applicable to this case.1</p> <p>2. The advantages to be considered are such only as are special to the property itself, and not to the person of the owner. The general appreciation of property in the neighborhood, consequent upon the opening of Fourth Avenue, cannot enter into the calculation. This the plaintiff, whose land is taken, is as fairly entitled to as his neighbor whose possession and enjoyment has not been disturbed.</p> <p>Answer: This is affirmed.</p> <p>3. As, therefore, the plaintiff owns no property along the line of or adjoining Fourth Avenue, except the property absolutely and wholly taken by the opening of said Fourth Avenue, there are no advantages to be considered by the jury, and the verdict must be for the plaintiff for the value of the land so wholly taken.</p> <p>Answer: You will see from what I have already said that I cannot affirm that point, and must therefore disaffirm it. I have endeavored to explain to you what in the opinion of the court are the principles applicable to it. I have said to you, in our estimation you are to consider Mr. Whitaker as owning the 140 feet which he owned at the time this street was dedicated to the borough.8</p> <p>Counsel are fearful that the jury might have misunderstood what the court meant. What I meant to say was, if the jury should conclude that Mr. Whitaker could have realized out of the 140 feet after the street was thus dedicated to public use, as much as he could have realized out of the 200 feet before it was dedicated, then you will see there is no disadvantage to him, there is no loss.</p> <p>—The jury returned a verdict for the plaintiff for SS350. A rule for a new trial having been discharged and judgment entered, the plaintiff took this appeal, assigning for error:</p> <p>1, 2. The answers to the plaintiff’s points.1 8</p> <p>3. The portion of the charge embraced in [ ] 3</p> <p>Counsel cited: (1) Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411; Long v. Railroad Co., 126 Pa. 146; Harrisburg etc. R. Co. v. Moore, 4 W. N. 532. (2) Keller St., 25 W. N. 524; Dillon on Mun. Corp., §473; Canal St., 11 Wend. 154; Anthony St., 20 Wend. 618; Graeff v. Baltimore, 10 Md. 544; Wagoner v. Dismant, 2 Chest. Co. R. 371. (3) Easton Bor. v. Walters, 18 W. N. 117; Pittsburgh City, 2 W. & S. 320; Easton Bor. v. Rinek, 116 Pa. 7; North Chester Bor. v. Eckfeldt, 1 Mona. 732; Volkmar St., 124 Pa. 327; Fifth and Sixth Sts., 4 W. N. 443.</p> <p>Counsel cited: Dillon on Mun. Corp., 3d ed., § 614; Shaw v. Charlestown, 3 Allen 538; Philadelphia v. Dickson, 38 Pa, 247 ; Fifth and Sixth Sts., 4 W. N. 443.</p>

<p>[To be reported.]</p> <p>1. The testimony of surveyors that they had run the lines of an official survey, getting their starting point from a marked tree upon an adjoining tract, pointed out by a deceased surveyor as a recognized corner of the adjoining survey, was, in this case, sufficient, in the absence of testimony to the contrary, to establish a location prima facie.</p> <p>(а) Two adjoining tracts of land were originally surveyed in the names of Moses Starr and Samuel Giffin respectively. A patent for each of these tracts was issued in 1815 to John Reed and others. In 1879, au assessment of 100 acres, as unseated land, was made in the warrantee names of “Moses Starr and Samuel Griffin,” for school purposes.</p> <p>(б) Upon this assessment, the county commissioners levied a tax for county purposes. In 1882, the county treasurer sold the 100 acres for unpaid taxes, and made a deed to the purchaser. It was alleged that the land intended to be assessed and sold was a parcel of land covered by a natural lake, situated partly on the Starr and partly on the Giffin tracts:</p> <p>2. The assessment of the land in the joint names of the separate warrantees, not shown to have ever been jointly interested, and without other matter of identification, coupled with the fact that the name Griffin was substituted for Giffin, amounted to more than a mere irregularity, and the tax sale based thereon conferred no title.</p> <p>3. A sale for taxes, as one tract and for a gross sum, of separate tracts which are neither held as one nor owned by the same person at the time of the assessment, and assessed together in his name as the owner of the whole, will confer no title upon the purchaser: Harper y. McKeehan, 3 W. & S. 238; Russel v. Werntz, 24 Pa. 337, distinguished.</p> <p>4. It is now well settled, though the decisions were not formerly to this effect, that the land assessed must in some way be identified from something appearing in the assessment, otherwise it cannot be sold for taxes; and a proper description is especially called for, when, being covered with water, it is incapable of cultivation or of settlement by ordinary methods.</p>

<p>APPEAL BY AMANDA S. LADD, TRUSTEE, PROM THE COURT OP COMMON PLEAS OP BERKS COUNTY.</p> <p>January Term 1891, Sup. Ct.; court below, No. 2 November Term 1887, C. P.</p> <p>On September 24, 1887, Francis B. Shalters brought an action for partition against Amanda S. Ladd, Lucy J. Livingood and Emma S. Kuendig, and the husbands of said Lucy J. Livingood and Emma S. Kuendig. The plaintiff’s declaration averred that the plaintiff and the defendants, Amanda S. Ladd, Lucy J. Livingood and Emma S. Kuendig, held as tenants in common certain real estate in the city of Reading, each being entitled to the undivided one fourth part thereof, etc. The defendants pleaded non tenent insimul.</p> <p>On November 19, 1887, Amanda S. Ladd, trustee of Francis B. Shalters under the will of Hannah R. Shalters, deceased, filed a petition praying for a rule to show cause why the petitioner, as such trustee, should not be added to the record as one of the defendants. The petition averred in substance the following facts:</p> <p>Nicholas Seidel died on May 30,1850, seised of the real estate ' in question. By his will, duly proved, he devised the same to. his daughter, Hannah R. Shalters, in the following words:</p> <p>“ Also, I give and devise to my daughter Hannah, intermarried with Francis B. Shalters, and to her heirs and assigns, forever, the three-storied brick tavern and the ground and stable thereto belonging, as it is -now possessed and occupied by George Kalbach, situate on the north side of Penn street, in the city of Reading and county of Berks, and adjoining the house and premises which I myself occupy; the said real estate to be enjoyed by my said daughter Hannah, during her natural life, to her sole and separate use, to the exclusion of her husband ; she shall not be at liberty to sell or encumber the same, and her receipts from time to time shall be a sufficient discharge for the rents thereof; and immediately after her death the said real estate shall vest in and be enjoyed by the lawful issue of my said daughter Hannah, excepting that if my said son-in-law, Francis B. Shalters, shall survive his wife, he shall during his lifetime enjoy the rents, issues and profits of one third of the said real estate.”</p> <p>The testator made devises to other daughters to be enjoyed by them during their natural lives, and made further disposition of the properties at their death, subject to provisions for their surviving husbands, directing in one instance that the land should vest in fee-simple in the daughter’s “ lawful issue or her brothers and sisters ; ” in others, directing that it should vest in the “ lawful issue in fee-simple,” and in others, in the “ lawful issue ” of the daughters.</p> <p>The residuary clause ordained as follows :</p> <p>“ And further, I do hereby order and direct, and I declare it to be my will, that if any or all of my said daughters shall request my said executors, or the survivors or survivor of them, to invest their shares or any one of their shares in said residue of my real, personal, and mixed estate, in real estate, it shall be the duty of my said executors so to invest it for the sole and separate use of my said daughters, respectively, during their lives, and after their deaths to go in fee-simple to their children, or lawful issue, the same as I devised to them the other real estate in former part of my will; but, on the other hand, if my said daughters prefer and elect to take their shares in the rest and'residue of my real, personal, and mixed estate, in money or personal property, they are at liberty to do so, and they may then take it to their sole and separate use, and do with it as thejr think proper, and their receipts for the same shall be a full discharge to my executors.”</p> <p>Francis B. Shalters, the husband of Hannah R. Shalters, died on July 5, 1873. On.November 22, 1873, Hannah R. Shalters, for the purpose and with the declared intention of barring all estates-tail, etc., executed a deed of the properties so devised to her, conveying the same to Morton L. Montgomery and his heirs, which deed was duly acknowledged and entered of record in conformity with the provisions of § 5, act of April 10, 1851, P. L. 506. On the same day, Montgomery-conveyed the same premises to Hannah R. Shalters in fee-simple. Mrs. Shalters died September 7, 1882, leaving four children, to wit, the plaintiff and the three defendants above named.* By her will dated December 7, 1878, and a codicil thereto dated December 14, 1880, she devised the undivided one fourth of the real estate embraced in this action, and other property, to the petitioner and Emma S. Kuendig, as active trustees for Francis B. Shalters, the plaintiff, and his family. On October 21, 1882, the petitioner’s co-trustee, Mrs. ■Kuendig, was discharged from said trust by the Orphans’ Court of Berks county.</p> <p>Upon the filing of the foregoing petition, a rule to show cause why the petitioner should not be made a party defend.ant, as trustee of Francis B. Shalters et al. under the will of Hannah R. Shalters, was granted. No answer or demurrer appears to have been filed by the respondents. After argu.ment upon the facts averred in the petition, the court, Endlich, J., on June 30, 1890, in an elaborate opinion printed in full in 8 Pa. C. C. R. 528, discharged the rule,1 holding that under the will of Nicholas Seidel, deceased, Hannah R. Shalters took but a life-estate, and that, therefore, the proceedings to bar the entail were ineffectual, and nothing passed by her will to Amanda S. Ladd, trustee, who, accordingly, had no standing to be made a party to the suit.</p> <p>On August 11, 1890, the defendants’ plea having been withdrawn, judgment quod partitio fiat was entered in accordance with the plaintiff’s declaration.3 Thereupon Amanda S. Ladd, trustee, etc., took this appeal, specifying that the court erred:</p> <p>1. In discharging the rule issued upon the appellant’s petition.1</p> <p>2. In refusing to add the appellant as a defendant on the record.</p> <p>3. In entering the judgment quod partitio fiat.3</p> <p>In partition, the court will permit a stranger to the record to be made a party and to interplead, upon his showing a probable title to a part of the land, as well before as after judgment: Wickersham v. Young, 1 Miles 395. A trustee is a proper party in partition as representing the share the title to which is vested in him: Miller on Partition, 43. A special trust maintains the legal estate in the trustee, the cestui que trust having only a right in equity to enforce the performance of the trust: Dodson v. Ball, 60 Pa. 496; Hutchison’s App., 82 Pa. 509.</p> <p>1. If Hannah R. Shalters took either an estate-tail or an estate in fee-simple under the will of Nicholas Seidel, Amanda S. Ladd, as trustee under Mrs. Shalters’ will, has a title to a share of the land and an interest in these proceedings, and the single question to bo determined is, what estate did Seidel’s will give to Mrs. Shalters ? The first clause of the devise to her clearly gives a fee-simple. The subsequent restriction as to the enjoyment of the property during her natural life, and as to its vesting at her death in her lawful issue, as clearly reduce the gift to an estate-tail, under the rule in Shelley’s Case, and the principles of construction settled in Pennsylvania. It is the intention of the testator as set forth in the meaning of his words, that must be determined in interpreting the devise: Hancock’s App., 112 Pa. 532.</p> <p>2. There are no expressions in this devise indicating that the word “ issue ” is used in any other than its prima facie signification as a word of limitation; and if the intention is that the remainder-men are to take as heirs of the particular devisee, the rule in Shelley’s Case is applied, even though it may defeat a manifest intent that the first taker should have but an estate for life: Guthrie’s App., 37 Pa. 13; Ogden’s App., 70 Pa. 509. The word “issue” will be construed as a word of limitation, unless there are expressions in the will unequivocally indicative of a contrary intention: Angle v. Brosius, 43 Pa. 189. As there are no words which in any way limit this effect of the phrase “ lawful issue,” the estate given by the will was an estate-tail. The estate in fee-simple given in the former part of the devise is reduced by these latter clauses, as of two clauses in a will clearly inconsistent the latter must prevail: Sheetz’s App., 82 Pa. 217; Haldeman v. Haldeman, 40 Pa. 84.</p> <p>3. The remaining clauses of this devise are consistent with any interpretation that may be put upon it. If, however, they should conflict with the interpretation we have advanced, they cannot overbear it unless clear and positive: Sheetz’s App., 82 Pa. 217. The separate-use clause may be applied equally to an estate of inheritance and to a life-estate: Craig v. "Watt, 8 W. 498; Faries’ App., 23 Pa. 29. So, likewise, the minor clauses in regard to encumbering the land and receipting for the rents. The concluding clause, in regard to the husband’s rights, may be construed as intended to limit and restrict the tenancy by the curtesy which otherwise the husband would have in the estate of inheritance given to the wife. The words of the devise clearly indicate that the testator gave his daughter Hannah an estate-tail.</p> <p>4. It is contended by the plaintiff that the use of the words “ children or lawful issue,” in the residuary clause, indicates that the word issue, in the prior devise, was used as a word of purchase! But there must be express and unequivocal warrant from the testator for the change of the word from its legitimate meaning: Guthrie’s App., 37 Pa. 14; Angle v. Brosius, 43 Pa. 187; and it is not sufficiently clear whether the word “children” dominates the words “lawful issue,” in the residuary clause, or vice versa, to change the meaning of issue in the devise to Mrs. Shalters, though it would seem that the use and meaning of this word in that devise, as a word of limitation, has been so positively determined, that it should be the dominant word in the residuary clause.</p> <p>1. The testator manifestly intended to give Mrs. Shalters a life-estate. There is an obvious incongruity in the terms used by him, but the setting aside of the law of descent, by narrowing, or rather denying the husband’s interest as tenant by the curtesy at his wife’s death, necessarily implies that the issue of tlie wife must constitute a new root of succession: Faries’ App., 23 Pa. 29. While “issue ” is prima facie a word of limitation, explanatory words may show that it was used in a restricted sense: Yarnall’s App., 70 Pa. 335; Robins v. Quinliven, 79 Pa. 335; Carroll v. Burns, 108 Pa. 386; and it maybe construed as a word of limitation or of purchase, as will best serve the intention of the testator: Reinoehl v. Shirk, 119 Pa. 108. His intention, when ascertained, is to be carried into execution, if not inconsistent with the rules or the policy of the law: Daley v. Koons, 90 Pa. 248; Reek’s App., 78 Pa. 432.</p> <p>2. It has even been considered conclusive ground for construing the word issue to mean children, that the testator has elsewhere in the will employed it in this limited sense: 3 Jar-man on Wills, 236. An examination of this will shows that in the residuary clause the testator explains the meaning he attached to it in the preceding clauses, interpreting it as the equivalent of children: Moser v. Dunkle, 1 Woodw. 392. In the case cited, Woodward, P. J., passing upon one of the devises in the will of Nicholas Seidel, which, as originally made, would confer an estate-tail, held that the explanatory words in the residuary clause restricted the gift to the testator’s daughter to a life-estate. Not only does the residuary clause interpret the word issue, but it comments on the prior devises, declaring them to be the same in character as the residuary devise, and such comment is sufficient to restrict their effect: 2 Jarman on Wills, 642.</p> <p>3. That the estate of the daughters under the residuary clause is a life-estate, cannot be doubted, as the word children is plainly used there as a word of purchase, there being no devise over from which an estate-tail may be inferred: Robins v. Quinliven, 79 Pa. 336, the use of the term fee-simple, being inconsistent with the idea of an estate-tail: Haldeman v. Haldeman, 40 Pa. 29; Daley v. Koons, 90 Pa, 249. It is plain that the residuary clause is an explanation or recital of the effect of the devises to the daughters, for this reason: There are three distinct modes in which the devises over are made, namely: (1) In fee-simple to lawful issue or to brothers and sisters; (2) to lawful issue in fee-simple; and (3) to lawful issue. The first of these is absolutely inconsistent with an estate-tail or a fee in the daughter. Had the testator not intended, in the residuary clause, to treat all the prior devises to daughters as alike life-estates, he would have directed one general form of settlement. By our construction eveiy part of the will is rendered effective and particular intents are all preserved : Finney’s App., 118 Pa. 11; McDevitt’s App., 113 Pa. 103; Miller’s App., 113 Pa. 459.</p>

<p>[To be reported.]</p> <p>1. When a bill in equity, praying that an execution issued by the defendant against the plaintiff may be stayed, on the ground that the debt'is equitably paid, and for an account, etc., contains statements as to the nature of the plaintiff’s title to land levied on under the execution, such statements, if immaterial to the relief sought, cannot operate as an estoppel.</p> <p>2. An averment that, plaintiff’s husband being indebted to her and having given a judgment to another, it was arranged to prevent his wasting his estate and secure the same for the benefit of himself and his family, that he should convey it to his wife, and “in consideration of the promises ” such conveyance was made, is not an admission that the conveyance was voluntary or subject to a trust.</p> <p>3. In ejectment by a purchaser at sheriff’s sale against the wife of the person whose title was sold, the plaintiff alleging that the land was conveyed to the wife in fraud of creditors, 1lie record of the judgment in a former ejectment between the same parties, on the same title, is not receivable as a conclusive adjudication of the matters in dispute.</p>

<p>APPEAL BY PLAINTIEES EJJOM THE COURT OE COMMON PLEAS OE BERKS COUNTY.</p> <p>January Term 1891, Sup. Ct.; court below, No. 16 June Term 1889, E. D., C. P.</p> <p>In an action of ejectment, brought to No. 188 May Term 1883, of the court below, for the undivided half of 183 acres of land, by Charles H. Miller and Elvira L., his wife, in right of said Elvira, against Reuben Klopp and Henry H. Miller, the plaintiffs recovered a verdict for the premises described in their writ, upon which judgment was entered November 8, 1886. In March, 1888, by virtue of that judgment, Elvira L. Miller was put into possession.</p> <p>On November 12, 1886, the same plaintiffs brought trespass for mesne profits against the same defendants to No. 25 December Term 1886. On April 16,1888, while this action was still pending, Henry H. Miller recovered a decree in equity against Charles H. and Elvira L. Miller, for the payment of $1,391.20, with interest from February 2, 1881, the decree providing, however, that it should impose no personal responsibility upon Elvira L. Miller, but should be enforceable against her by the seizure and sale of the undivided half of the 183 acres above mentioned, which had been conveyed to her by her husband : Miller’s App., 1Í9 Pa. 620.</p> <p>To enforce said decree in equity, Henry H. Miller, on April 25, 1888, issued a writ of fieri facias, under which a levy was made on the right, title and interest of Elvira L. Miller in and to the land aforesaid, and the same was condemned upon inquisition held. On July 7, 1888, a writ of venditioni exponas for the sale of the real estate so condemned was issued, and on July 19, 1888, Elvira L. Miller filed a petition averring that she was wrongfully disseised by Henry H. Miller of the undivided one half of the 183 acres aforesaid, in August, 1880; that at the time of filing the petition she was in the undisputed possession thereof, in pursuance of her recovery in ejectment at No. 133 May Term 1883; that by said recovery her right to the rents, issues and profits of the said premises during the continuance of her disseisin was judicially established; that she had instituted the action to No. 25 December Term 1886 for their recovery, which action was ready for trial, and that the sum due the petitioner, on account of such rents and profits, amounted including interest to $949.87 over and above the amount of said decree in equity; praying that the writ of venditioni exponas for the enforcement of the decree in equity in favor of Henry H. Miller be stayed, and that a rule be granted to show cause why said decree should not be canceled and the record thereof marked satisfied. The court thereupon stayed the writ and granted the rule prayed for.</p> <p>Subsequently, the petition of Mrs. Miller was amended so as to pray for an issue to determine whether the decree had not been fully paid. While the rule upon this petition was pending, the action for mesne profits at No. 25 December Term 1886, came to trial, resulting in a verdict and judgment for the plaintiffs for $2,653.55. The pleadings in that action were not printed in the paper-books, but it was stated that the plaintiffs’ declaration claimed mesne profits from the date of the disseisin in 1880, and that by a notice given under act of May 2, 1876, P. L. 95, mesne profits subsequent to the commencement of the action and down to the date when the plaintiffs obtained possession in 1888, were claimed. In the appellants’ paper-book it was alleged that the official stenographer’s notes of the trial showed that the plaintiffs withdrew all evidence relating to matters prior to May 1, 1883.</p> <p>Execution having been issued upon the judgment for mesne profits, so recovered, Henry H. Miller on May 25, 1889, filed a petition averring that he had tendered full payment of the judgment to the plaintiffs, a part of the payment tendered consisting of the decree in equity for $1,391.20, and that the plaintiffs refused to accept the tender; praying the court to stay the execution. The court thereupon made an order staying the writ.1 Afterwards the plaintiffs petitioned the court to strike off the stay.</p> <p>After hearing had, upon the petitions of the parties in reference to the stay of Elvira L. Miller’s execution upon her judgment for mesne profits, and also upon the rule with reference to the cancellation of the decree in equity in favor of Henry H. Miller, the court, Ekmentrottt, P. J., filed an opinion which, after reciting the facts and referring to the averment in Henry II. Miller’s petition for the stay of the execution on the judgment for mesne profits, to the effect that he had tendered payment of the judgment, etc., proceeded:</p> <p>Whilst true it is, this tender was not kept up by actual payment into court, and it was developed upon hearing that the tender was simply an offer to pay such .an amount in cash which, together with the decree in equity and costs of suit and writs, would fully satisfy the judgment obtained for mesne profits, we are of the opinion that payment in this way was equitable, and that the plaintiffs should have accepted the proposition.</p> <p>To prevent the supposed injustice by exemption process upon the decree in equity, the hands of Henry Miller were ■stayed by the court until Elvira Miller was enabled to reduce to a judgment the amount she claimed for mesne profits. In her petition she contended for the use of this amount as a set-off and an extinguishment of the decree. It was apparently an equitable contention. It seemed unjust and oppressive to take in execution for the payment of the decree the very lands out of which she was entitled to the rents, issues and profits •claimed to have been illegally taken by Henry Miller. Her wishes can now be gratified. If Henry Miller will, within five days from date, make actual lawful tender, as contemplated in his offer, with proper costs, the proper order for staying the ■execution will be made with all proper and necessary relief. If the proper tender is not so made, execution process may proceed.</p> <p>We are aware that counsel for Elvira Miller will claim that the verdict of the jury does not cover the whole of her alleged •claim. But the records showing that it does must be accepted as verity.....</p> <p>In Carvill v. Garrigues, 5 Pa. 152, it is said: “ No principle is clearer or better settled than that a party cannot separate one ■entire cause of action into parts, and sue for one on one occasion and for the other at another. The first suit of recovery will be an answer to the same. Where the claim arises from an entire contract or one tortious act, the law will not permit it to be divided into distinct demands, and made the subject of separate demands. She had her day in court; her one action covered legally the whole period from 1880 to the time of obtaining possession in 1888. She cannot gainsay the record. She ought not now complain.</p> <p>Under the views we have expressed, it is unnecessary to discuss the other points raised upon argument, whether the decree and set-off are in the same right, or whether the court possesses jurisdiction to modify the decree.</p> <p>—The plaintiffs thereupon took this appeal, specifying that the court erred:</p> <p>1. In staying the plaintiffs’ execution.1</p> <p>2. In deciding that the execution might be proceeded with only on condition of crediting thereon the amount of the decree in equity.</p> <p>Counsel cited: Herman on Estoppel, § 119; Buck v. Wilson, 113 Pa. 430: Logan v. Caffrey, 30 Pa. 200 ; Brenner v. Moyer, 98 Pa. 278.</p>

<p>APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS OP BERKS COUNTY.</p> <p>January Term 1891, Sup. Ct.; court below, No. 18 January Term 1886, C. P.</p> <p>On December 19, 1885, there was entered in the court below, by appeal from the judgment of a justice of the peace, an action brought by Benjamin Riegelman against Daniel Focht, upon an alleged contract to pay rent for certain premises in Lenhartsville, Berks county. The defendant pleaded, non-assumpsit.</p> <p>At tbe trial on September 22, 1890, tbe following facts were shown:</p> <p>In 1884, the plaintiff, the owner of a hotel property in Lenhartsville, rented it by a verbal agreement to James S. Focht, a son of the defendant, for the term of one year from April 1, 1884. The testimony was conflicting as to whether the rental agreed upon was $200 or $150. James S. Focht obtained a hotel license and went into the occupancy of the premises. On or prior to September 1, 1884, he paid $75 on account of the rent. The plaintiff testified that all the rent was to have been paid or secured in advance, and testified, further, in part as follows:</p> <p>“ Q. Will you tell us whether or not you made an agreement at any time with Daniel Focht, the defendant in this case, about the payment of the rent of the hotel ? ”</p> <p>Mr. Rothermel: This is objected to, unless it be shown that the alleged agreement was put in writing, or that the new agreement was made in pursuance of a consideration. The testimony is incompetent and immaterial.</p> <p>Mr. Marx: The plaintiff proposes to show a new agreement.</p> <p>By the court: Objection overruled; exception.1</p> <p>“A. James Focht went on and put the telephone in the house; he did not pay any rent, nor did he give bail. Then Dan Focht came there, the old man, and said to me, ‘Jim is doing a good business,’ and that I should let him live on the premises, that he, Daniel Focht, would pay the rent either monthly or quarterly, as I desired it. But he did not pay it either monthly or quarterly. That is all I have to say or know. Q. Did you at that time threaten to evict James Focht ? A. I said if he did not pay his rent or give bail, I would evict him. Q. What was Daniel Focht’s answer at that time? A. Dan Focht said, then, I should leave him remain and that he would pay the rent monthly or quarterly, as I desired. Q. What did he do then ? A. He remained there until the end of the year. Q. What did you say to Daniel Focht ? A. Then I left him live there. Upon the old man’s promises I left him live there. I cannot answer what answer I gave; it is so long ago, I have forgotten it. Q. Was any one present at the time you made this contract? A. Yes; I took Isaac Becker along as a witness. Q. Was he present at the time you made the agreement ? A. Yes; we talked it over, and then I called Isaac Becker and told him we had made such a bargain. Q. Did you tell him what bargain you had made ? A. I cannot say what I told him; it is too long. Q. Was Mr. Daniel Focht present when you stated the contract to Becker? A. Yes, sir; I and Focht stood together, and then Becker came there.”</p> <p>By Mr. Schaeffer: “ Q. What was said at that time ? A. I cannot say that; perhaps I told Becker that we made such a contract. Q. Have you any recollection of what you said, or anything at all that you said to Becker? A. Yes; I told Becker to come there, and that we had made such a bargain. Q. Can you recollect what you said to Becker ? A. I cannot say that any more; it is too long.”</p> <p>By the court: “ Q. Did you repeat the bargain to Becker ? A. I will not say that I did, but perhaps I did. Q. You cannot recollect any more ? A. I may have told the bargain to Becker, but I cannot recollect it any more, and what I do not remember I will not say, it is so long ago.”.....</p> <p>Cross-examined: By Mr. Rothermel: “ Q. When was this contract made with Daniel Focht? A. That I told you this forenoon, that I could not say the time when it was. Q. Was it in September ? A. That I cannot say, but it was about that time; what I do not know I will not say.....Q. You leased it to James Focht in the fall ? A. No, in the spring, and Jim did not come up to the contract, and then I rented it to the old man in the summer.....Q. How much did James Focht pay you on this rent? A. Jim Focht paid $75, and $125 the old man owes me yet. Q. The $75 were paid after you had talked to the old man about it ? A. No. Q. State when they were paid ? A. It is too long ago, I cannot any more. Q. Can you swear that it was before the old gentleman had this conversation with you ? A. Yes, sir; he paid me that rent before. After I had a contract with the old man, then Jim did not owe me anything any more. Q. Then how much rent was due when you said you would put James S. Focht out if the old gentleman would not pay the rent ? A. It was all due; it was due before he moved in. Q. Is it not a fact that there was not more than $75 rent due when you and the old gentleman had that conversation ? A. It was all due in the spring already. I cannot tell you how much was due, because it was talked that way that he was to pay the rent in advance or give bail. Now, what was due ? Q. How much was due when you say Dan Focht made this bargain? A. I cannot tell you just, lie-said I should let Jim live there, ‘he is doing a good business; I will pay the rent.’ What could I say? Q. Then James S. Focht paid you §75 and still owes you §125? A. Yes, sir, Jim; but he did not pay it on the bargain, and he owes me §125 yet. Q. Jim Focht paid you §75 and owes you §125; is that so or not? A. I rented it to him for §200. Now, ibis easy to know how it is. . . . . Q. You did not state an amount to Daniel Focht when you talked about this ? A. It was not necessary to state any amount. Dan Focht said, ‘ let Jim remain, he is doing a good business, I will pay the rent.’..... Q. Jim Focht paid you §75, and owes you §125 yet? A. Yes. The old man owes it to me, not Jim any more.”</p> <p>Isaac Becker testified for the plaintiff, in part as follows: “ Q. What was the agreement between the parties, what was said and done ? A. All I know is this: I was there in the store next to Riegelman’s hotel. Then Riegelman and old Mr. Focht were standing at the rail where the horses were tied on in front of the hotel. Then Riegelman said, ‘ Becker, come up here.’ Then Riegelman said, ‘We have now a contract that James Focht shall remain living here.’ Then Riegelman said, I am not positive whether Riegelman said, ‘Dan Focht stands for the rent,’ or, ‘ Dan Focht will pay the rent.’ I am not positive sure which of the two he said. Q. Was Daniel Focht present at the time? A. Daniel Focht was standing aside of us.”</p> <p>Mr. Rothermel: Defendant renews his objection to this part of the testimony, and moves the court to strike it out.</p> <p>By the court: Motion overruled; exception.8</p> <p>The defendant denied having made any agreement with the plaintiff to pay the rent in question.</p> <p>At the close of the testimony, the court, ERMEm’BOTJT, P. J., after submitting to the jury the question how much rent was due to the plaintiff, and, stating the substance of the testimony of the plaintiff and Isaac Becker, gave further instructions in part as follows :</p> <p>It is upon that evidence the plaintiff seeks to recover in this case. [If the jury under the evidence should find that, in consideration of a promise made by Riegelman to Focht that he, Riegelman, would not eject James Focht from the premises, if he, Daniel Focht, would pay the rent, — if they would find that to be the state of facts, — that, in law, would amount to a contract by and between Daniel Focht and the plaintiff, upon which the defendant Daniel Focht would he liable, and there could he a recovery in this case. But before there can be any recovery, you must find that there was such a contract;] 3 that they talked about the fact of this eviction, and that Daniel Focht promised this plaintiff that if he would not put James out, hut would leave him remain, he, Daniel Focht, would pay this rent; and that Riegelman accepted that contract, and that upon the faith of it he allowed James Focht to remain, looking no longer to James Focht for his money, but to Daniel Focht. In other words, the jury must find that Daniel Focht really made a new contract upon that day with this plaintiff, that James Focht should remain and that he, Daniel Focht, would pay the rent to the plaintiff. To bring about a recovery, the old contract is in point of fact gone. Unless there was a new contract made by and between the plaintiff and Daniel Focht, there can be no recovery. And that contract must have been to pay the rent, — not to go bail for the rent, but to pay it. In other words, Daniel Focht puts himself in the place of his son; takes his place, and the property is rented to him, and this man, James Focht, is allowed to remain upon the property by virtue of the contract and promise to pay made by and between Daniel Focht and the plaintiff.</p> <p>What now does the defendant say ? The defendant says two things: First, that there was no promise; second, that even if there had been a promise, the statute of frauds would free him from liability, because the contract which was made was not in writing.....</p> <p>If the jury should find from this testimony that the words simply were that Daniel Focht would stand for the rent, that would be a suretyship, that would be a bailship, and there can be no recovery, because the promise was not reduced to writing.</p> <p>Let me recapitulate all the points in this case, so that you may clearly pass upon them. In the first place ascertain what rent is due. Did he rent for $200 or $150. From whatever amount you find the property to have rented for, deduct $75, and on the balance calculate interest from October, 1884, up to the present date. That is the amount due. The next question is did Daniel Focht obligate himself to pay that rent or not? The plaintiff’s theory is that Daniel Focht and Kiegelman made a contract that if James Focht was permitted to remain upon the premises, he, Daniel Focht, would pay the rent. That is, he is put really in the position of the tenant. They no longer, under such a state of facts, look to James Focht, but directly to Daniel Focht. Now, if the facts will warrant that interpretation, and if you find that that was the contract, then tlie plaintiff would be entitled to recover. But if the facts would simply warrant a bailsliip or suretyship, then he cannot recover, because the statute of frauds says the promise should be in writing. And if the other theory of the defendant is correct, that he made no promise at all, there could also be no recovery. These are the facts upon which you have to pass.</p> <p>—The jury returned a verdict for the plaintiff for $99.65. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error:</p> <p>1. The admission of plaintiff’s offer.1</p> <p>2. The refusal of defendant’s motion.2</p> <p>3. The part of the charge embraced in [ ] 3</p> <p>The only question is whether the alleged promise of the defendant falls within the statute of frauds, § 1, act of April 26, 1855, P. L. 308. A careful reading of the plaintiff’s testimony plainly shows that it does; that there was a mere forbearance on the part of the plaintiff to evict James S. Focht, while the right to sue him for the rent remained, and as there was a continued liability upon the part of the debtor, the alleged promise was only collateral. Nor does Becker’s testimony show more than a suretyship or a promise to pay the rent for James Focht. Therefore, no recovery could be had, the promise not having been reduced to writing: Maulé v. Bucknell, 50 Pa. 53; Addison on Cont., § 210; Brown on Stat. of F., note to § 212; 9 Am. & Eng. Encyc. of Law, 73: Eshleman v. Harnish, 76 Pa. 103; Hearing v. Dittman, 8 Phila. 307; Malone v. Keener, 44 Pa. 107; Birkmyr v. Darnell, 1 Sm. L. C., 8th ed., 459, note by Judge Hare; Allshouse v. Ramsay, 6 Wh. 331; W atson v. Randall, 20 Wend. 201; Dexter v. Blanchard, 11 Allen 365 ; Nugent v. Wolfe, 111 Pa. 471. The statute should be enforced according to its true intent and meaning: Nugent v. Wolfe, supra.</p> <p>1. In view of the instructions given by the court, it is established by the verdict that the contract between the plaintiff and the defendant produced a change of relation, substituting the defendant in the place of his son, and that the son’s liability to pay rent ceased with the making of the contract. The only question then is, whether there was sufficient evidence to warrant the finding of the jury: Eshleman v. Harnish, 76 Pa. 103; Maulé v. Bucknell, 50 Pa. 51. The plaintiff testified: “ I rented it to the old man in the summer.....After I had a contract with the old man, then Jim did not owe me anything any more.....The old man owes it to me, not Jim any more.” Becker testified that the plaintiff said, in the defendant’s presence : “ We have'now a contract that James Focht shall remain living here,” and “ Dan Focht stands for the rent,” or “ Dan Focht will pay the rent.” This testimony fully warrants the finding of the jury, by which the contract was determined to be that James Focht should be permitted to remain, and that the defendant should pay the rent, becoming liable therefor as tenant in the place of James.</p> <p>2.- Having made the rent his own debt, and having gotten what he agreed to pay for, the control of the premises for the unexpired term, the defendant is liable upon his promise and the statute of frauds does not apply: Merriman v. McManus, 102 Pa. 102; Taylor v. Preston, 79 Pa. 436; Merriman v. Liggett, 1 W. N. 379; Lefevre v. Bank, 2 W. N. 174; Weyand v. Crichfield, 3 Gr. 113; Warnick v. Grosholz, 3 Gr. 234; Addison on Cont., § 210. The proof of the contract resting on parol testimony, its sufficiency was for the jury, and it would have been error to withdraw it from them by peremptory instructions: Taylor v. Preston, 79 Pa. 436. The consideration disclosed by the testimony was not forbearance to evict, but the consent of the plaintiff to forego his conceded right to occupy the premises by himself for another tenant, and that James Focht should occupy them to the end of the term. But the consideration is immaterial in the construction of the statute; the test is applied to the promise, and if that does not bring the contract within the statute, the consideration never can: Maulé v. Bucknell, 50 Pa. 52.</p>

January Term 1891, Sup. Ct.; court below, No. 44 November Term 1888, C. P. On October 27, 1888, Solomon Close and George W. Kershner brought assumpsit against Josephine P. Zell and others, executors of the will of Thomas Zell, deceased. The plaintiffs’ statement of claim was in two counts.

<p>APPEAL BY DEPENDANT EBOM THE COURT OE COMMON PLEAS OE LYCOMING COUNTY.</p> <p>January Term 1891, Sup. Ct.; court below, No. 1 June Term 1890, C. P. in Equity.</p> <p>On March 7, 1890, tbe Williamsport & North Branch Railroad Company filed a bill in equity against the Philadelphia & Erie Railroad Company, averring in substance as follows:</p> <p>That the plaintiff company, in pursuance of powers and privileges conferred upon it by its charter, was extending its railroad from its present terminus at Hall’s station, to points on or in connection with the Philadelphia & Erie Railroad, and in so doing had made a proper and lawful location of its roadway over certain described property of John Metzger in the city of Williamsport, by a survey and staking out of the centre line thereof, which location was made, in point of time, anterior to the location on said property of the line of any other railroad; that by a written contract, made January 28,1890, said Metzger agreed to sell'said property to the plaintiff for $12,000, and the s&me was necessary to the plaintiff for its use in the proper construction and operátion of its railroad; that the defendant company, without right or authority of law, intended to construct a branch, line of railroad over and upon the property aforesaid, which would cause irreparable damage to the plaintiff; that the defendant had tendered a bond to said John Metzger, as security for any damages arising from the location and construction of such intended railroad of the defendant upon said land, such tender had been refused, and the defendant was about to present said bond to the Court of Common Pleas of Lycoming county for approval; praying for an injunction restraining the defendant company from presenting said bond for the approval of the court; from locating, constructing and maintaining said branch railroad upon the land aforesaid, and from interfering with the construction, operation and maintenance by the plaintiff of its railroad, works, stations, etc., thereon. Upon the filing of the bill, the court granted a preliminary injunction ; and, after a hearing upon affidavits, the injunction was continued until further order : Williamsport etc. R. Co. v. Railroad Co., 8 Pa. C. C. R. 10.</p> <p>Subsequently, the defendant filed an answer, which, neither admitting nor denying that the plaintiff was extending its line from Hall’s station to a point on or in connection with the defendant’s railroad, averred that the plaintiff had done no work upon the ground beyond Hall’s station, and that it was not constructing its line upon the alleged location mentioned in the bill; denied that the plaintiff ever had made a valid and legal location of the line of its railroad upon the lot of John Metzger, or that there was anything upon said lot showing the said location; averred that the defendant had made a location of the line of its railroad upon said Metzger, and was proceeding in a lawful and regular manner to condemn the land therefor when prevented by the injunction granted in this case; denied that the whole of said lot was needed for the railroad of the plaintiff, or that the construction of the defendant’s road thereon would produce irreparable damage to the plaintiff, and averred that both railroads could be constructed and operated on said lot without interfering with each other.</p> <p>Issue being joined, the cause was referred to Mr. J. A. Beeber, as examiner and master. The only evidence before the master respecting the making of a location by the plaintiff of a line of railroad upon the Metzger property, was testimony tending to show that on November 26, 1886, William A. Mason, the plaintiff’s chief engineer, surveyed and staked out a centre line thereon; that on November 12, 1889, he ran the same line again, and staked out a centre line; that he had made a map of the survey of 1886, and a map and profile of the survey of 1889, which were returned by him to the office of the company and were thereafter kept there. One of the plaintiff’s witnesses said that he thought there was some difference between the two surveys, in the location of the centre line. B. G-. Welch, the general manager of the plaintiff company, testified that he was present, upon the ground, when each of those surveys was made, and that they were made “ under the instructions of the company.”</p> <p>The defendant put in evidence a resolution of its board of directors, dated October 28, 1889, adopting as the location of a branch line of its railroad, running upon and across the Metzger lot, a survey recited to have been previously made and marked upon the ground by its engineers. Robert Neilson, the defendant’s general superintendent, testified on cross-examination as follows: “ Q. When did your company, if you know, locate a line by survey and staking the centre line over the land of John Metzger ? A. I am not prepared to answer that question on account of my absence. Q. To your knowledge, has your company ever located a line by staking out a centre line over the land of John Metzger? A. Not by driving stakes on the land of John Metzger, but they have made a survey across it. The land of John Metzger is so narrow that it really does not require stakes.”</p> <p>The master’s report was filed November 25,1890. Upon the question of location, the master found, in substance, that the plaintiff company, having lawful authority to build an extension of its road from Hall’s station to a connection with the plaintiff’s road, had located the line of such an extension by survey and staking out the centre line thereof, first on November 26, 1886, and again on November 12, 1889, and had expended in such works and the purchase of rights of way about $10,000; and that said locations were made upon the land of John Metzger prior, in point of time, to the location of the line of any other railroad on said land, or the attempt by the defendant to condemn part of the said land. He reported also, inter alia, that the plaintiff company intended to locate on said lot buildings and appliances to furnish terminal facilities for the handling of its traffic, that the whole lot would be required therefor, and both railroads could not be constructed thereon; and that the defendant could construct a track in such a way as to operate its branch road successfully, without going upon any portion of the land of Metzger. The master, therefore, — citing and considering: Pittsburgh etc. Ry. Co. v. Commonwealth, 101 Pa. 192; Titusville etc. R. Co. v. Railroad Co., 12 Phila. 642; Davis v. Railroad Co., 114 Pa. 312; Penna. R. Co.’s App., 93 Pa. 159; Lewis v. Railroad Co., 16 Phila. 621; Pittsburgh etc. R. Co.’s App., 122 Pa. 511; Sharon Ry. Co.’s App., 122 Pa. 544; Groff’s App., 128 Pa. 635; Cleveland etc. R. Co. v. Speer, 56 Pa. 335; Phila. etc. R. Co. v. Williams, 54 Pa. 107; and distinguishing: Neal v. Railroad Co., 2 Gr. 138; West. Penn. R. Co.’s App., 99 Pa. 155; West River Br. Co. v. Dix, 6 How. 507; Richmond etc. R. Co. v. Railroad Co., 13 How. 83, — recommended a decree according to the prayer of the bill.</p> <p>Exceptions to the master’s report were filed by the defendant, specifying, inter alia, that the master erred:</p> <p>3. In reporting that the plaintiff had taken and appropriated for railroad purposes any part of the lot of John Metzger.3</p> <p>5. In not reporting that there was no evidence whatever that the board of directors of the plaintiff company had directed or authorized the construction of a railroad over the lot of John Metzger.5</p> <p>7. In not reporting that the evidence showed that no line of railroad had been located upon the ground from Hall’s Station to Williamsport, and no work whatever had been done between those points.7</p> <p>12. In recommending a decree according to the prayer of the bill.18</p> <p>The exceptions having been overruled by the master and afterwards renewed before the court, after argument thereof the court, Metzger, P. J., on B'ebruary 6, 1891, filed an opinion in part as follows:</p> <p>In the light of the facts proven in this case, the .conclusions of law found by the master are sustained. We had occasion to discuss some of the questions of law arising in this case, when we filed our opinion giving our reasons for continuing the injunction in this case; and what we then said, together with the carefully prepared and well-considered opinion of the master, we deem sufficient to sustain the right of the plaintiff to the decree recommended by the master.</p> <p>It is now urged by the defendant that there is no evidence that the directors of ,the plaintiff ever authorized the location of this road. It might be sufficient answer to this allegation to say that there was no such issue raised by the pleadings in this case. It is asserted in the second paragraph of plaintiff’s bill that the Williamsport & North Branch Railroad Company “is extending its line of railroad from its present terminus, at or near Hall’s Station, in said county, to points on or in connection with the said Philadelphia & Erie railroad.” And this allegation is not denied by the answer. But we have the positive testimony of B. G. Welch, the general manager of the plaintiff, that the survey was made under the instructions of the company; also, the testimony of W. A. Mason, the civil engineer who made the surveys for the company, who testifies he made maps of the locations run in 1886 and in 1889, and that these maps were left and now are in the office of the plaintiff.</p> <p>It is also claimed that the plaintiff has abandoned its road and that more than a reasonable time has elapsed since its location, and that no present purpose of the company to go forward in the construction of its road has been shown, and, therefore, its location is valueless. The point as to the abandonment of the road would be,well taken, if the company relied on its survey in 1886, but the final survey and location of the road was not made until November 12, 1889, and shortly thereafter this litigation commenced. The uncertainty of the final result of legal or equitable proceedings, where the determination of an issue, as in this case, largely depends upon the facts proven, must be conceded. Pending these proceedings, it could scarcely be expected that the plaintiff should have gone forward with the construction of its road, which necessarily would have caused a large expenditure of money.</p> <p>From all the evidence before us, in tins case, we cannot say that it is not the present purpose of the plaintiff to construct its railroad as soon as it can be done, under the circumstances. We, therefore, sustain the report of the master, and dismiss the exceptions filed to his report, and make the following order and decree: . . . .</p> <p>—A decree having been entered dismissing all the exceptions to the master’s report; granting a perpetual injunction in accordance with the prayer of the plaintiff’s bill, and directing that the costs of the proceeding be paid by the defendant,13 the defendant took this appeal, specifying inter alia that the court erred:</p> <p>3, 5. In dismissing the defendant’s exceptions.3 3</p> <p>7, 12. In dismissing the defendant’s exceptions.7 13</p> <p>13. In entering the final decree.13</p> <p>By §10, act of February 19, 1849, P. L. 83, the power to locate the line of a railroad is vested in the president and board of directors of the corporation. Moreover, the statute under which the plaintiff, as the successor of the Muncy Creek Railway Company, claims the power to build a line of railroad from Hall’s Station to Williamsport, specifies the authority which it confers in these words: “ They may also connect with the Philadelphia & Erie railroad at such points as they may think best: ” act of April 17, 1866, P. L. (1869) 1302. It seems, then, too clear for argument, that some corporate action was absolutely necessary before the plaintiff could locate its road. Nothing of the kind was pretended in this case.</p> <p>It is expressly provided in § 10, act of February 19, 1849, P. L. 83, that engineers, superintendents, etc., may make the location of the route of a railroad; and, in this case, both the chief engineer and the general manager of the plaintiff company testified that the surveys and locations in 1886 and 1889 were made for the plaintiff and under its instructions, and that the maps and profiles are on file in its office. There is no statute or decision in Pennsylvania requiring more than that, to render a location effective. No provision is made by law for any record of the act of the company in making the appropriation: Heise v. Railroad Co., 62 Pa. 72. As suggested by the court below, the issue as to whether this location was made by “the president and directors ” is not raised by the pleadings. But there is no testimony that the defendant ever located its road by survey and staking out a centre line, and without that action it has no standing in this case: O’Hara v. Railroad Co., 25 Pa. 448; Pittsburgh etc. Ry. Co. v. Commonwealth, 101 Pa. 192; Titus-ville etc. R. Co. v. Railroad Co., 12 Phila. 642; Davis v. Railway Co., 114 Pa. 812.</p>

4 OE PHILADELPHIA COUNTY. January Term 1887, Sup. Ct.; court below, No. 596 June Term 1888, C. P. No. 4. On June 25, 1883, Jacob Sansenbacher brought assumpsit against Henry Schiekendantz. On September 3, 1883, judgment was entered for the plaintiff for $626.83, for want of an affidavit of defence.

July Term 1890, Sup. Ct.; court below, No. 469 June Term 1890, C. P. On May 6,1890, Charles Maneval brought assumpsit against the township of… Held: “ When the charter of a municipal corporation confers the power to purchase fire apparatus, cemetery grounds, to establish markets, and do many other things for the execution of which money would be a necessary means, it also, in the absence of any positive restriction, confers the power to borrow money as an incident to the…

APPEAL BY WILLIAM PICKERING FROM THE ORPHANS* COURT OF BRADFORD COUNTY. January Term 1891, Sup. Ct.; court below, number and term not shown.

4 OF PHILADELPHIA COUNTY. January Term 1890, Sup. Ct.; court below, No. 753 March Term 1890, C. P. No. 4, in Equity. On May 10, 1890, Charles McCartney filed a bill in equity against Michael J. and John J. Cassidy, averring: “ 1.

<p>[To be reported.]</p> <p>1. A corporation of another state, having no office or place of business in Pennsylvania, and not doing business therein, cannot be subjected without its consent to the jurisdiction of a court of this state, by the service upon its president, temporarily within the state for his own purposes, of a summons issued upon a cause of action arising elsewhere.</p> <p>2. In such a case, the defendant having pleaded in abatement to the jurisdiction of the court, on the ground that it was a foreign corporation and had no corporate existence in this state, and the plaintiff having demurred to the plea, judgment on the demurrer was properly given for the defendant, notwithstanding the action was of a transitory nature.</p> <p>3. Section 3, act of March 21, 1849 , P. L. 216, and Knight v. Railroad Co., 108 Pa. 250; Usher v. Railroad Co., 126 Pa. 210, and like cases, contemplate a foreign corporation doing business within this state: officers of other foreign corporations, entering the state for their own business or pleasure, do not bring with them the corporations which they represent at home.</p>

<p>APPEAL BY PLAINTIEE PNOM THE COURT OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNTY.</p> <p>January Term 1890, Sup. Ct.; court below, No. 72 December Term 1888, C. P. No. 1.</p> <p>On December 14, 1888, Howard R. Deacon brought scire facias upon a mechanics’ lien against William H. Greenfield, owner or reputed owner and contractor. The lien in question was filed against nine dwelling-houses, four of them fronting on the west side of Third street, and the remaining five on the east side of Orianna street, in Philadelphia. The claim was for 1876.38, for lumber furnished in and about the erection of said houses; and it was apportioned by the plaintiff, the sum of $70.11 being charged against each of the Orianna street houses. The scire facias, issued in the present case, related to the apportioned claim against one of the houses on Orianna street. On December 22, 1888, William S. Lane, terre-tenant of the premises in question, was permitted by the court to intervene as a party and to make defence to the action pro interesse suo. Issue.</p> <p>At the trial, on October 4, 1889, the plaintiff having made out a prima facie case, the terre-tenant presented testimony tending to show the following facts:</p> <p>On September 10, 1888, by articles of agreement dated that day, the defendant, Greenfield, sold the premises in question and the other houses fronting on Orianna street to Lane, the terre-tenant. In performance of said agreement, Greenfield conveyed said houses to Lane by deed dated September 22, 1888, and Lane paid the full amount of the purchase money to Greenfield. At the time of closing the purchase, Greenfield produced a written release of all liens and claims against those five houses, on account of work done or materials furnished for 'or about their erection. Appended to the release was the following signature: “H. R. Deacon, [l. s.], Lumber; P. Elmer Weitzel.”</p> <p>Weitzel was in the employ of Greenfield as a salesman, and manager or foreman, of his1 lumber yard. He signed the plaintiff’s name to the release at the request of Greenfield, but nothing was paid by Greenfield at the time thereof. Greenfield asked for the release to enable him to complete the sale to Lane, promising to use the money be would receive upon that sale in paying a note be owed to tbe plaintiff. This promise he did not keep. The plaintiff was not present when the release was signed.</p> <p>Being called to the witness-stand as upon cross-examination, the plaintiff testified as follows :</p> <p>“ I don’t recollect seeing this paper or signature before. Heard of it at meeting of creditors in November, 1888, at Beal & Christian’s office. At a meeting of Mr. Greenfield’s creditors, I was sent for to come to meeting to make settlement with Greenfield, and I was asked to take a certain per cent on the dollar. I told them that I would not take a per cent, as my liens were sufficient. Mr. Beal (I think) then said there was a release. I knew nothing of it. P. E. Weitzel is a salesman of mine on salary, and manager. I am general manager. He is in charge when I am away. He is next in command. Has no interest as partner..... He never had authority to sign papers for me, releases, checks, notes, or anything of that kind. That release is the first I knew him to sign. First I ever know of it was in meeting of creditors. Ho had no authority whatever to sign releases. I should give him power of attorney and have it recorded. I sign releases myself, when I am paid or have some security. Never knew of Weitzel signing before this. Have no recollection of having heard that he did so before.”</p> <p>Cross-examined: “ I immediately denied that I had signed release as soon as I heard of it. I told Mr. Hunsicker to notify Lane that I denied relejase. I did not know houses were sold until at meeting of creditors.”</p> <p>Weitzel testified for the terre-tenant as follows: “ Employed by LI. R. Deacon for nine years, as salesman and foreman of yard. Am a salesman now. Have charge of business during Mr. Deacon’s absence. He is away very seldom. If he is away, it is very little. I am next in command.....I never had authority to sign releases of liens for Mr. Deacon. I signed it only in a friendly way. He said he was about to sell the houses, had a note due, and I did it to help him. I had no authority, verbal or in writing, from Mr. Deacon. Q. Did you ever sign such paper before ? ” Question objected to.</p> <p>Mr. Lane: I propose to show a general habit on part of Weitzel, to sign for Mr. Deacon to Greenfield and others. The offer is objected to.</p> <p>By the court: Objection overruled; exception.4</p> <p>“ Q. Had you been in the habit of signing such releases for Mr. Deacon at the request of Mr. Greenfield ? ” Question objected to.</p> <p>By the court: Objection overruled; exception.®</p> <p>“A. I might; out of hundreds and probably thousands, I might have signed a half dozen, but always after the claim was paid. I can say positively I signed some, i. e., where the debt was paid. I signed none when the debt was not paid before, that I remember, except in this case. I wont swear that I did not positively. I never signed in any other case when nothing was paid. Am sure of that. I can say that I never signed any before for Mr. Greenfield, when no part of the debt was paid. I have no interest whatever in Mr. Deacon’s business. After I signed this release in question I said nothing about it to Mr. Deacon. Nothing at all.”</p> <p>Cross-examined: “ I think I signed half a dozen releases since the time I have been with Mr. Deacon. For a party I knew well I signed. In no case did I inform Mr. Deacon.”</p> <p>The terre-tenant then called the defendant Greenfield, and offered to show hy him that he had had numerous dealings with Mr. Deacon, all of which were through Weitzel, and in all cases when he had purchased from Mr. Deacon and requested the releases, Mr. Weitzel had given them.</p> <p>Objected to.</p> <p>By the court: Objection overruled; exception.6</p> <p>The witness then testified:</p> <p>“ All of my dealings were done with Mr. Weitzel; all of my principal dealings. Mr. Weitzel made the sales of lumber to me. I sent to the yard if we wanted anything. In fact I did all the business with Mr. Weitzel. When I bought the lumber in this operation (Orianna and Third streets) my dealing was with Mr. Wgitzel. I had before this transaction requested releases of claims of Mr. Deacon against my houses from Mr. Weitzel. Q. Did Mr. Weitzel sign the releases which you requested?” Question objected to by Mr. Hunsicker.</p> <p>By the court: Objection overruled; exception.7</p> <p>“A. Mr. Weitzel always signed the releases which I requested. I cannot say how often. Q. Did he ever sign releases.for you when no part of the debt had been paid ? A. That I can’t say.”</p> <p>The release in question in this ease being offered in evidence by the terre-tenant, was objected to by plaintiff’s counsel:</p> <p>By the court: Objection overruled; release admitted; exception.10</p> <p>At the close of the testimony the court, Biddle, J., charged the jury in part as follows:</p> <p>It appears that Mr. Greenfield, after he had built these bouses, sold them to Mr. Lane, and Mr. Lane, as it was his duty, paid the full amount of money for these houses and obtained his deed, and obtained what he supposed to be a release of all these mechanics’ claims.....</p> <p>Mr. Deacon has taken the stand and repudiated the authority of P. Elmer Weitzel to bind him in any way, and I think there is no evidence in this case of any written authority given beforehand to Mr. Weitzel to sign Deacon’s name.....And it then is inquired as to who Mr. P. Elmer Weitzel is, and it seems that Mr. P. Elmer Weitzel is what they call the second in command, the man who has charge of all the affairs of this establishment when Mr. Deacon is away, and that he is the salesman and trusted confidential man of the concern.</p> <p>[Mr. Deacon denies that he has any such authority as he here claims, and it strikes me that it is rather remarkable that Mr. P. Elmer Weitzel should be still in the employ of Mr. Deacon, and head man, the principal agent and confidential man of business. One would naturally suppose that, where a merchant finds his book-keeper has used his name, signed his name to a note or paper without his authority, he does not remain in his service long after he has found that out; but the remarkable peculiarity of this case is, that, while Mr. Deacon says that this P. Elmer Weitzel has done what he had no right to do, and what probably may involve him in trouble that he does not anticipate, he still keeps him in the position in which he formerly kept him.] 11</p> <p>[To make him responsible, Mr. Deacon, in this ease, you would have to believe that if he did not know of it before, he knew of it afterwards; and that Mr. Greenfield having failed, the man who owed him the money, he now resorts to this mode of obtaining it, and repudiates Mr. P. Elmer Weitzel. If you believe that, then your verdict should be for the defendant in tbis case. If you do not find that, however, if you believe that Mr. Weitzel did this without any formal authority or prior authority, or without subsequent ratification, that Mr. Deacon knew nothing about it, and that this was as great an outrage upon him as it was upon the other parties who were defrauded by it, he is entitled to your verdict. That is the question in this case; whether from the circumstances, because of the relation of the parties you believe or do not believe that Mr. Deacon knew it before or knew it afterwards.] 10</p> <p>The plaintiff requests the court to charge;</p> <p>2. Assuming, for the purposes of this point only, that Weitzel had authority to bind his principal by release, yet if the jury find from the evidence that Weitzel signed it upon and in consideration of Greenfield’s promise to pay, out of the proceeds of the sale of the Orianna street houses, a promissory note which he, Greenfield, had given plaintiff for the material furnished to the operation, and Greenfield failed to do so, then the said release would, if otherwise good, be void and of no effect because of the failure of the consideration upon which it was given and received. Its use under the circumstances as a defence to the claim in suit, would be a fraud upon the plaintiff.</p> <p>Answer: Refused.13</p> <p>7. That it was the duty, therefore, of Mr. Lane, under the circumstances of this case, before accepting the paper as a release, to have made inquiry from the plaintiff whether or not the agent was authorized to release his lien against the houses in question. If he did not do so, he was himself only to blame,, and you should wholly disregard the paper as a release, provided you also find that the agent acted without authority.</p> <p>Answer : I refuse the seventh point.14</p> <p>The defendant requests the court to charge:</p> <p>6. If the plaintiff knew that the said Weitzel had signed his name to the release in question, and the plaintiff did not promptly disavow the said release, he cannot repudiate it now as against the terre-tenant, if the terre-tenant purchased on the faith of said release before the disavowal of it by the plaintiff.</p> <p>Answer: I affirm that point, that if the plaintiff knew either before or afterward that Weitzel had signed his name to this release, then he is bound.16</p> <p>—The jury returned a verdict for the defendant. A rule</p> <p>for a new trial having been discharged and judgment entered, the plaintiff took this appeal, assigning for error, inter alia :</p> <p>4-7.* The admission of defendant’s offers.4 to 7</p> <p>10. The admission of defendant's offer.10</p> <p>11, 12. The parts of the charge embraced in [ ] 11 18</p> <p>13, 14. The answers to the plaintiff’s points.13 14</p> <p>15. The answer to defendant’s point.13</p> <p>1. If we admit for the sake of argument that Weitzel did sign a few releases in cases where the debt was paid, and that the plaintiff ratified them, it would not raise an implication that he had authority to sign a release in a case where the debt was not paid: Corr v. Greenfield, 184 Pa. 508. But there is no evidence of ratification as to any releases signed by Weitzel. And Lane was negligent in not making inquiry as to his authority to sign the plaintiff’s name to such an instrument as a release: Wharton on Agency, §139; 1 Wait’s Act. & Def., 227; as in order to affect the plaintiff by Weitzel’s act, it was necessary for him to prove his agency and the extent of it : Moore v. Patterson, 28 Pa. 505; Hays v. Lynn, 7 W. 525; McCulloch v. McKee, 16 Pa. 294. Authority by deed is necessary for the execution of an instrument under seal on behalf of another: Story on Agency, §49; 1 Wait’s Act. & Def., §§ 2, 5; Patterson v. Moore, 34 Pa. 73; Grove v. Hodges, 55 Pa. 515; Schmertz v. Shreeve, 62 Pa. 460; Stevenson v. Hoy, 43 Pa. 195.</p> <p>2. It is true, an agent’s authority may be presumed from the previous adoption and confirmation by the principal of repeated acts of similar nature: 1 Wait’s Act. & Def., §5; but, in the present case, there can be no such presumption, because there is no evidence that any of Weitzel’s acts in signing releases were ever communicated to the plaintiff, and there can be no ratification without a full knowledge of the transaction : Pittsb. etc. K. Co. v. Gazzam, 32 Pa. 340; Moore v. Patterson, 28 Pa. 505. The instruction to the jury that “ if the plaintiff knew either before or afterward that Weitzel had signed his name to this release, then he is bound,” was equivalent to binding instructions for the defendant, since it was admitted that the plaintiff knew of it afterwards, but only at a meeting of creditors in November, 1888.</p> <p>3. We have not overlooked the line of cases holding that, when a seal is not essential to the validity of a contract or instrument, and the agent who executed it had no authority to seal it for the principal, but had authority to bind the principal without a seal, the seal may be disregarded and treated as a nullity: Schmertz v. Shreeve, 62 Pa. 460; Dubois’s App., 38 Pa. 236; Baum v. Dubois, 43 Pa. 266; Jones v. Horner, 60 Pa. 218. Those cases would apply if the debt had been paid to Weitzel, and the plaintiff had then endeavored to repudiate the release; but a release without a seal and without any consideration is void, being a nudum pactum: Kidder v. Kidder, 33 Pa. 268; Albert v. Ziegler, 29 Pa. 60; Schmertz v. Shreeve, 62 Pa. 460. There is no pretence that the debt was paid, nor is there any consideration to support this release as an unsealed instrument.</p> <p>1. The chief vice of the appellant’s argument consists in ignoring the fact that a general agency on the part of Weitzel was established. He was the alter ego of the plaintiff in this business, and as such could do any act that the plaintiff himself might have done. Hence, it is altogether immaterial whether he had any particular authority to sign releases, or whether any cash consideration passed to him or to the plaintiff. And a general agency having been admitted by the plaintiff, it was perfectly competent to show that Weitzel had signed similar releases in other instances; at least, such proof could do the plaintiff no harm. One who holds out a general agent to the world is bound by any contract the agent makes within the scope of his business: Williams v. Gfetty, 31 Pa. 461; Story on Agency, § 127.</p> <p>2. In contending that authority under seal was necessaiy in this case, the plaintiff overlooks the modern decisions by which it is now established that a parol authority or ratification is sufficient to validate a sealed instrument executed by an agent: Jones v. Horner, 60 Pa. 214; Alcorn v. Cook, 101 Pa. 209. And surely, no one could misunderstand the instructions to the jury which are complained of. They meant that if the plaintiff knew of the signing by Weitzel, and did not promptly disavow it, then he was bound, without regard to prior authority or other proof of agency. This rule is sustained by the Pennsylvania cases: Bredig v. Dubarry, 14 S. & R. 27; Valentine v. Packer, 5 Pa. 333; Kelsey v. Bank, 69 Pa. 426 ; Schrack v. McKnight, 84 Pa. 26; Winton v. Little, 94 Pa. 64. Corr v. Greenfield, 134 Pa. 503, has no bearing upon the present ease. There, the proof of agency failed, and for that reason the release was rejected; hero, the agency has been found upon abundant evidence, including the plaintiff’s own admission.</p>

<p>Where the plaintiff, employed by the defendants to do their hauling for one year at a stipulated sum to be paid monthly, was discharged before the year expired, the measure of his damages was, not the unpaid balance of the year’s wages, but the reasonable profit he would have made if permitted to perform.</p>

<p>(a) A cestui que trust applied to the trustees for information as to the assets of the trust-estate, which was declined. An account having been settled, she filed exceptions resulting in an audit and re-statement of the account, rendered proper if not necessary for information as to the condition of the estate not to be obtained from the account as originally filed:</p> <p>1. Although the rule is that where exceptions are filed in the Orphans’ Court, to the account of an executor, administrator or trustee, the ex-ceptant is not entitled to an allowance of counsel fees out of the fund, yet, under the peculiar facts of the present case, a decree allowing counsel fees and the expense of procuring a copy of the account is affirmed.</p>

<p>APPEAL BY PLAINTIFFS FBOM TICE COUNT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.</p> <p>January Term 1880, Sup. Ct.; court below, No. 2835 (O. D. C.), C. P. No. 4.</p> <p>On October 16, 1874, Eugene Borda and others, trading as Borda, Keller & Nutting, brought case against tbe Philadelphia & Reading Railroad Co., filing a narr in tort to recover damages alleged to have been sustained by the plaintiffs by reason of illegal discriminations against them in the charges for the carriage of coals on the defendant’s railroad.</p> <p>The narr as originally filed contained two counts. The first count averred that the defendant was a common carrier for hire, from certain places in the Schuylkill coal region of Pennsylvania to Port Richmond, in Philadelphia, and the owner and operator of a railroad between those places and Port Richmond; and that on divers days and times during the year 1869 the plaintiffs tendered to the defendant a large quantity of coal to be carried to Port Richmond and there delivered to the plaintiffs, or their order or consignees, to be thence shipped to points east of New Brunswick, and were ready and willing, and offered to pay them such sums of money as they were legally entitled to receive for the receipt, carriage,' and delivery of said coal, being no higher rate than was then required by defendant to be paid by any other customers of defendant for the same service, under like circumstances. It was alleged that the defendant, not regarding its duty as such carrier, although it did at the said times receive and carry coal for certain other persons from said places to Port Richmond, to be thence shipped to points east of New Brunswick, under like circumstances, fox the same price which it required the plaintiffs to pay and which they did pay, yet repaid to such other persons, out of the price so paid by them, a certain drawback, to wit: $1.65 per ton for steamer coal, $1.50 per ton for broken coal, $1.15 per ton for egg coal, and $1 per ton for stove coal, which drawbacks it did not allow or pay to the plaintiffs for their coal of the same kinds; whereby, to the amount of the said drawbacks, the plaintiffs were obliged to and did pay to the defendant an excessive, illegal, and unreasonable charge for the receipt, carriage, and delivery of their coal. The count concluded with an averment that the defendant wilfully made the said unreasonable and illegal preference and discrimination of charges in favor of such other persons and against the plaintiffs, well knowing and intending that such other persons would be thereby enabled, and they were thereby enabled, largely to increase their business in the sale of said coal in the markets east of New Brunswick, at the expense of and to the great injury of the plaintiffs’ business in the same markets, which had theretofore been very large.</p> <p>An additional count was subsequently filed, like the first count in all respects, except that it averred that the defendant, secretly and without the knowledge of the plaintiffs, repaid the drawbacks to the other persons.</p> <p>The second count alleged that the defendant carried coal for others in 1871 for $1.20 per ton, and in 1872 for $1 per ton, but required the plaintiffs to pay an increased rate for the same service, rendered during the same time and under the like circumstances.</p> <p>The cause being put at issue was referred on October 30, 1877, by agreement of the parties, to Mr. Peter Me Call, as referee, under the provisions of § 6, act of June 16,1836, P. L. 718.</p> <p>On November 29, 1879, the referee filed his report. Upon the preliminary question -whether, prior to § 3, article XVII. of the constitution, it was the duty of the defendant to carry without discrimination, the referee, — citing Fitchburg Ry. Co. v. Gage, 12 Gray 393; Eclipse Tow-Boat Co. v. Railroad Co., 24 La. Ann. 1; Johnson v. Railroad Co., 16 Fla. 623 (26 Am. Rep. 731); New Eng. Exp. Co. v. Railroad Co., 57 Me. 188 (2 Am. Rep. 31); Messenger v. Railroad Co., 8 Vroom 531 (18 Am. Rep. 754), affirming s. c., 7 Vroom 407; Sandford v. Railroad Co., 24 Pa. 378; Shipper v. Railroad Co., 47 Pa. 338; Cumb. V. R. Co.’s App., 62 Pa. 218; Audenried v. Railroad Co., 68 Pa. 380; Twells v. Railroad Co., 3 Am. L. Reg., N. S., 728; Cambios v. Railroad Co., 4 Brewst. 563, — reported:</p> <p>' I regard it, then, as settled law in this state, that a railroad company, a common carrier, owes a duty of equality to every citizen; and I adopt the position taken by Mr. Bullitt, in argument, that railroad companies have no right to make any undue . discrimination or preference in their charges; and a charge made to one shipper higher than to another, for the same service, under like circumstances, constitutes undue preference and discrimination, and by consequence renders the charge unreasonable. Such is the general rule, and it is vastly important to the general public that there be no undue relaxation of this rule; for, exercising, as they practically do, a monopoly of transportation on their roads, railway managers have in their hands a tremendous power, by discrimination, to enrich one man and ruin another. The equality, however, which is thus prescribed, is not a strict and literal equality under all circumstances however varying and different. It is rather an equality in the sense of freedom from unreasonable discrimination. It is only unjust, undue, or unreasonable discrimination, against which the law has set its canon.</p> <p>Arbitrary discrimination is illegal; so, discrimination made with a view of giving advantage to one person. But the truism that circumstances alter cases applies here, and under a different state of circumstances, a discrimination may be reasonable and lawful, which, were the circumstances the same, would be undue and unreasonable. In order to render lawful an inequality of charge, the goods must be carried under different circumstances, and the question whether the difference is material or essential arises in each particular case.</p> <p>It is impossible to lay down with any precision the limits of these qualifications of the general rule. Special agreements reducing the rate of tolls have received the sanction of the English courts, only where it has been made clear that the motive was to promote the interests of the carrying company by a legitimate increase of its traffic.</p> <p>—Citing upon the statement of the last preceding paragraph, S trick v. Canal Co., 16 C. B., N. S-, 244; Nickolson v. Railroad Co., 5 C. B., N. S., 866 ; Twells v. Railroad Co., 3 Am. L. Reg. N. S., 728; Shipper v. Railroad Co., 47 Pa. 341; Hersh v. Railway Co., 74 Pa. 181; London etc. R. Co. v. Evershed, 3 L. R. App. C. 1029; McDuffee v. Railroad, 52 N. H. 430 (13 Am. Rep. 72), the report proceeded:</p> <p>It was contended by Mr. Go wen, that even if the rule of equality applies to companies invested with other powers, it does not apply to the Philadelphia & Reading Railroad Co., which by its charter, act of April 4, 1833, P. L. 144, has a monopoly of tolls, but not of transportation. The company was incorporated as a railroad and transportation company, and it was provided that the toll should not exceed four cents per ton per mile. But no special privileges were granted to them as transporters. The privilege of putting cars and motive power upon the road was conceded to them, but to no greater extent than to the public generally.</p> <p>The right of this company to charge freight for transportation came up in Boyle v. Railroad Co., 54 Pa. 310, where it was held that toll was a tribute paid for passage, not for carriage, and that the proviso was not intended to limit the charges which they might make in their business transactions.</p> <p>Further, by act of April 3, 1862, P. L. 234, the privileges conferred on the Schuylkill Navigation Company, by act of April 5, 1859, P. L. 872, were extended to the Reading railroad company. By this act, the Schuylkill Navigation Company were empowered to contract for the transportation of anthracite coal and other articles, and to include the charge for such transportation in their charge for tolls. It was argued for the defendant, that the risk of unreasonable or unequal charges was guarded' against by transportation being thrown open to public competition, and that no legal wrong was done to the plain tifls when the company charged them for toll and transportation both, less than they had a right to charge them for tolls alone. And Cumberland V. R. Co.’s App., 62 Pa. 218, was referred to as a decisiou to the point that so long as the charter rates are not transgressed, there can be no question of equality as an element of reasonableness where specific charges-are provided by the charter.</p> <p>But I do not think that this conclusion can legitimately be drawn from that case. The court below had granted an injunction restraining the company from charging more for toll and transportation, or motive power, on freight carried in the cars belonging to individuals, than on freight carried in the company’s cars, or the cars of any other company. The Supreme Court held this decree to be ultra the bill, which contained no charge to justify it. Judge Thompson, delivering the opinion of the court, does say that, even if it had been charged in the bill that more was demanded for transportation in the plaintiff’s cars than in the company’s, yet as the excess was not greater than the charter allowed, it was not wrong to demand it. If the learned judge had said that the company could charge one private transporter more than another private transporter, his opinion would have been in point; but no such complaint was made, and the question of inequality of rates between individuals of the same class of transporters did not arise. The company had a right to discriminate between rates-of freight of private transporters who used their own cars, and rates of freight carried in the cars of the company.</p> <p>It was further contended by Mr. Gowen as a matter of constitutional law, that the regulation of commerce between the states being exclusively vested in congress, no state rule or regulation affecting the exportation or transportation for exportation of any goods can have validity, and therefore the Reading railroad company could make any contract they pleased for the exportation of coal from Philadelphia to any other state, without being embarrassed by any state rule or regulation on the subject; that in the absence of congressional regulations, such commerce should be absolutely free and untrammeled. In support of this he referred to Hall v. De Cuir, 5 Otto 485, the case of a colored woman who took passage in a steamboat sailing from New Orleans to Vicksburg, and being excluded from the ladies’ cabin, brought an action to recover the penalty provided by a statute of Louisiana. But the Supreme Court of the United States held that the act of the legislature of Louisiana was a regulation of inter-state commerce, so far as it had the operation of subjecting to damages the owner of a vessel excluding colored passengers on account of their color, from the ladies’ cabin, and was to that extent unconstitutional and void. The State Freight Tax Case, 15 Wall. 282, was also referred to in support of this proposition.</p> <p>And it was contended that congress had actually undertaken to regulate railroad transportation between the states in the Revised Statutes, § 5258, p. 1022. The provision of this section is that every railroad company in the United States, whose road is operated by steam, is authorized to carry upon and over its road all passengers, freight, and property, on their way from any state to another state, and to receive compensation therefor, and to connect with roads of other states, so as to form continuous lines for the transportation of the same to the places of destination.</p> <p>It will be observed that congress has thus far made no provision on the subject of discrimination by railroad companies. A bill is now pending before it to regulate inter-state commerce, and to prohibit unjust discrimination by common carriers, which makes it unlawful for any person or persons engaged in the transportation of property bjr railroad, from one state or territory to or through one or more other states or territories of the United States, or to or from any foreign country, directly or indirectly to charge to or receive from any person or persons any greater or less rate or amount of freight, compensation, or reward than is charged to or received from any other person or persons for like and contemporary service, in the carrying, receiving, delivering, storing, or handling of the same. But congress has not yet legislated on the subject, and I apprehend that the rule is correctly stated by C. J. Waite, in the case referred to, Hall v. De Cuir, that, “ by refraining from action, congress in effect adopts as its own regulations those which the common law, or the civil law where that prevails, has provided for the government of such business.” No one surely would contend that the Reading railroad, as a carrier, is not subject to the common-law responsibility for all cases except by the act of God and the public enemy, by reason of the existing legislation of congress above referred to.</p> <p>Further the Reading railroad is situate wholly within this state. In the case of the Chicago, Burlington & Quincy Railroad Co. y. Iowa, 4 Otto 155, it was held that a state may regulate the charges of railroads situate entirely within the state, even though those engaged in commerce among the states might sometimes use the railroad in the prosecution of their business. “ The objection,” said C. J. Waite, “ that the statute complained of is void because it amounts to a regulation of commerce among the states, has been sufficiently considered in the case of Munn v. Illinois. This road, like the warehouse in that case, is situated within the limits of a single state. Its business is carried on there, and its regulation is a matter of domestic concern. It is emplojmd in state as well as interstate commerce; and, until congress acts, the state must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in so doing those without may be indirectly affected.” See also Munn v. Illinois, 4 Otto 113, and Peik v. Railway Co., 4 Otto 164.</p> <p>It was further contended by Mr. Growen that even admitting the rule of equality of rates to be applicable, the plaintiffs had no cause of action, because they had no special grievance over other shippers ; that it was analogous to . the case of the obstruction of a highway, which is a public nuisance, and gives no cause of' action to individuals sustaining no greater injury than the rest of the communities using the highway. The reason assigned is, that it would be found impracticable to give a civil remedy for each individual, the object being to avoid multiplicity of actions, for if any one man might have an action, all men might have the like. But the law for this .common nuisance has provided an apt remedy b}r indictment; unless a man has sustained a particular damage, in which case he has his action on the case: Co. Litt., 56 a. Thus, in Payne v. Partridge, 1 Salk. 12, the case of a common ferry for all persons paying toll, except the inhabitants of Littleport, who were toll free, an inhabitant of Littleport was held entitled to bring his action for taking toll, but not for keeping up the ferry, the former being a private, the latter a public right. If toll was exacted and paid by him, that was a special damage.</p> <p>Lord Holt in Ashby v. White, 2 Lord Raym. 955, uses this language : “ It is no objection to say tliat it will occasion multiplicity of actions; for, if men will multiply injuries, actions must be multiplied, too ; for every man that is injured ought to have his recompense. Suppose the defendant had beaten forty or fifty men, the damage done to each is peculiar to himself, and he shall have his action; so, if many persons receive a private injury by a public nuisance, every one shall have his action, as is agreed in Williams’s Case, 5 Co. 73 a, and Wcstbury v. Powell, Co. Litt. 56 a.” The law has said, from the Year-books downward, that if a party has sustained any peculiar injury beyond that which affects the public at large, an action will lie for redress: Tindal, C. J., in Wilkes v. Hungerford, 2 Bing. N. C. 281.</p> <p>The injury in the present case is not one affecting the plaintiffs in common with the whole public, and I am therefore of opinion that the action may be maintained. Indeed, the point is settled by the decree in Twells v. Railroad Co., before referred to, which directed that the defendant should pay to the complainant the excess over the ordinary or usual rates of freight paid by the complainant to the defendant before the filing of the bill, with interest, to wit, the sum of $1,984.60, afterwards reduced to $1,924.86.</p> <p>It was contended on behalf of the defendant that the relation of principal and agent between the plaintiffs and those for whom they were factors had ceased to exist when this suit was brought, and that no case goes to the extent of deciding that where the agency has been closed a factor remains the representative of his principal for the purpose of vindicating wrongs sustained by him, and that the present action is brought to recover damages for an injury sustained by the firm of Keller, Borda & Nutting, and not for an injury sustained by their principals.</p> <p>In support of this view, the case of United States v. Yillalonga, 23 Wall. 35, was referred to, in which it was held that under the Abandoned and Captured Property Act, which gives to the owner of any such property a right, after it has been sold by the government, to recover the proceeds of it in the treasury, a factor who has merely made advances on the property, there being another person having the legal interest in the proceeds, is not to be regarded as the owner. In this case, Judge Strong said no doubt a factor who has made advances upon goods consigned to him, may be regarded in a limited sense and to the extent of his advances as owner: yet, in reality, he has but a lien with a right of possession of the goods for his security. He may protect that possession by suit against a trespasser upon it. But, after all, he is not the real owner. It is no more than the ownership of a lien or charge upon the property.</p> <p>To this it was replied, that the question was not who owned the coal, but who employed the carrier. The duty to carry impartially is to those who employ the carrier, not to those who own the goods carried. Here tlie plaintiffs sold in their own names. Their principals were undisclosed. The bills for tolls were made to them in their .own names, and paid by them in their own names. The case of Sandford v. Railroad Co., 24 Pa. 37.8, and the other express company cases, were relied on to sustain this view.</p> <p>In Piekford v. Railway Co., 10 M. & W. 399, the case of packed parcels, where it was argued that each separate owner might maintain a separate action, on the custom of England, in respect of his own goods, in case of loss or damage by neglect, Parke, B., said it was very doubtful, at least, whether on the custom of England, separate actions could be maintained, as the relation of employer and carrier would not have existed between them and the company, but between them and the plaintiffs.</p> <p>It is true that a plaintiff cannot join in the same declaration demands de jure alterius and in proprio jure. Thus, he cannot join an action in his own right with an action by him as executor or administrator: See Hooker v. Quilter, 1 Wils. 171; Rogers v. Cooke, Carth. 235; 1 Salk. 10, and Peries v. Aycinena, 3 W. & S. 71. But I apprehend the rule is otherwise where the legal title to the demands is in the same person, and he is not compelled to designate himself as acting in jure alterius : See Mayall v. Railroad Co., 19 N. H. 122 (49 Am. Dec. 149) ; case for loss of a package of bonnets; it was held that the plaintiff could recover, although a third person might have an interest in his business. The court said: “ The contract was made between the defendant and the plaintiff, and not between the defendant and any other person. She may or not be answerable to some tbird person for a part of the damages she may recover from the defendant. The legal interest in the contract resides in her, and she is the proper person to enforce it.”</p> <p>On the whole, I think that the plaintiffs can recover in this action damages for unjust discrimination on the coal shipped by them as factors, as well as on that owned by them in their own right.</p> <p>Lastly, it was contended by Mr. Growen, that the payments of the charges for freight were made by the plaintiffs voluntarily, and without protest, and therefore could not be recovered back. In reply it was said that the plaintiffs made these, payments under a mistake of fact, not knowing that Audenried & Co. were paying from a dollar to a dollar and a half per ton less than they were paying, and that overcharges by railroad companies amounted to extortion. The simple answer, however, is that this is not an action to recover back the freights paid, but is an action of tort, to recover damages for a breach of the defendants’ duty to the plaintiffs.....</p> <p>- — Determining the facts in connection with a discussion of the testimony by which they were found, the referee continued:</p> <p>The plaintiffs’ case under the first and additional counts of the declaration rests upon a wilful discrimination in favor of Audenried & Co., by which, as set forth in the pleading, I understand an intentional discrimination, made deliberately and with the purpose of increasing their business to the injury of the plaintiffs’ business. The word “ wilful ” in this connection is not surplusage. It means a great deal. Wilful discrimination in my judgment means a great deal more than mere discrimination. It means discrimination, made knowingly and intentionally, with the dishonest design of building up the fortune of Audenried & Co. at the expense of Borda, Keller & Co.</p> <p>The defendant’s case denies that the discrimination was wilful and made with any such design as imputed by the plaintiffs. It rests upon the ground that the payment of the drawbacks to Audenried & Co. was made under an honest and bona fide belief that they were entitled to them, under an arrangement by which, in consideration of their having made contracts early in the spring for delivery of coal at fixed prices throughout the season, they were allowed the drawbacks in question. In short, that the drawbacks were paid under an entire misapprehension of the facts; and that there was no intention to favor Audenried & Co., or to give them any advantage which they would not have extended to any other shipper under the same circumstances.</p> <p>The question is, how far is the charge of wilful discrimination sustained by the evidence ? . . . .</p> <p>On the whole, I am of opinion, upon the best consideration I have been able to give the subject, that the defendant did not pay to Audenried & Co. the drawbacks complained of in the first and additional count of the declaration, wilfully and with intent to enable them to increase their business at the expense of the plaintiffs, but that it paid the same in good faith, under the belief that Audenried & Co. had made contracts in the spring at a fixed price for delivery of the coal.....</p> <p>The expediency of permitting special agreements and special rates by railway carriers is one of the questions of the day, entering into the problems of railway management. But, until the legislature shall cut up by the roots all special agreements and special rates, I apprehend it cannot be safely affirmed that all such agreements are per se unlawful although discriminating. The true question in each particular case as it arises is, whether the special agreement is reasonable under all the circumstances, and honestly made with a single eye to the interest of the railway company. If it be so, then the only responsibility resting on the company is that they be willing to make the same agreement with every other person under the like circumstances.</p> <p>Now, as long as such special agreements are tolerated, it is obvious that the power of making such agreements, pro re nata, must for all practical purposes be vested in some officer of this company, or committee of the board. In the present case, although there existed no rule or regulation of the company authorizing the agreement which Mr. Smith authorized to be made with Audenried & Co., I do not think the board of managers could have successfully denied his authority to make such agreement. No question seems to have been raised as to his authority.</p> <p>And I am further of opinion that the agreement, authorized by Mr. Smith to bo made with Audenried & Co., if in other respects free from objection, was not invalidated by reason of its not being notified to the plaintiffs. In point of fact, no notice of such agreement with Audenried was given to any other shipper. But, in point of law, I do not think that the duty of giving notice to the world of every special rate rests upon the carrier, under penality of being guilty of unlawful discrimination by his omission to give such notice. How, and to whom, is such notice to be given ? All that could reasonably be required of the defendant was that it be ready and willing to transport for all others, under the like circumstances, at the same rate as for Audenried & Co. There is no evidence of its not being willing to do so. Its willingness was not put to the test by the plaintiffs. Had they made contracts for the sale of coal early in the season, at fixed prices, and then been refused the drawbacks allowed to Audenried & Co., the ease would have been very different. But they did not make such contracts, not deeming it their interest to do so.</p> <p>The question then is, was the discrimination made by the agreement with Audenried & Co., authorized by Mr. Smith, a reasonable one, and honestly made with a view to the interests of the company?.....</p> <p>At the bottom of this subject lies the broad question, whether a railroad company may lawfully regulate its rates, with reference to the price of the merchandise transported.</p> <p>On behalf of the defendant, it was contended that there is nothing to prevent a railroad company from regulating its rates by the price of the article transported; that, practically, the market price of the article regulates the rate, and the cost of transportation is a percentage on the price. In support of this view, the cases of the Del. & H. Canal Co. v. Coal Co., 21 Pa. 131, and Commonwealth v. Canal Co., 43 Pa. 295, were referred to. These cases, however, do not settle the point, because the question of discrimination based upon price did not arise in them.</p> <p>On the other hand, it was contended for the plaintiffs, that mere difference of price at which articles of the same kind may have been sold, does not warrant discrimination in rate of charge for carriage; for which position, Twells v. Railroad Co., 3 Am. L. Reg. N. S., 728; Sandford v. Railroad Co., 24 Pa. 878, and other cases, were cited, which, however, while they establish the general duty of equality of rates, do not, I think, settle the precise question under consideration. I regard the question as still an open one; and my opinion is, that the price at which the article transported is sold, is a reasonable element in fixing the rate of transportation. Practically, it cannot be ignored in fixing rates. If a rate totally disproportioned to the value of the article transported be demanded, it is obvious that traffic must be paralyzed, and the business of the road diminished.</p> <p>It seems to me, therefore, that the interests of a railroad company require that the element of price, whether by a sliding scale or otherwise, must be permitted to enter into the rate of transportation, and that a discrimination based on that element is not an arbitrary or unreasonable discrimination, offending against the rule of equality. It was assuredly for the interest of the defendant to secure a large tonnage on their road, by encouraging contracts made in the spring for delivery of coal during the season.</p> <p>I am of opinion, therefore, that the defendant could legally have allowed the drawbacks to Audenried & Co., which it did allow, if that firm had had contracts made in the early part of the season for delivery of coal in the Eastern market at fixed prices. In that case, although the service rendered to Audenreid & Co., to wit, the transportation, would have been the same as that rendered to .the plaintiffs, yet the circumstances were different, and the difference' of circumstances would have justified the discrimination.....</p> <p>—The referee, therefore, concluded that the plaintiffs had failed to make out their case under the first and additional counts of the declaration. Taking up the case under the second count, he held that it presented no question of fact, but simply a question of law, whether the defendant company had a right to discriminate with reference to the price at which the coal transported was sold, as to which he had already expressed his opinion. Accordingly he found that the plaintiffs had no cause of action under this count, and on the whole case he awarded in favor of the defendant company.</p> <p>To the report of the referee the plaintiffs filed fifty-seven exceptions, chiefly relating to the referee’s findings of fact, certain of which alleged that the referee erred:</p> <p>54. In not awarding in favor of the plaintiffs, under the first and additional counts, the sum of $62,914.58, with interest from December 1, 1869.</p> <p>57. In not finding in favor of the plaintiffs, under the second count in the narr, for the sum of $7,355.91, with interest on $4,384.65 thereof, from December 31,1871, and on the balance thereof, viz., $2,971.26, from December 31, 1872.</p> <p>Said exceptions, with nineteen exceptions filed on behalf of the defendant company, chiefly relating to the referee’s conclusions of law upon the subject of discriminations, having been argued before the court in banc, an opinion was filed as follows:</p> <p>The court, while they do not concur with the referee in all the conclusions of law announced in his report, being nevertheless of opinion that upon the whole case his finding in favor of the defendant is correct, it is ordered that the exceptions be dismissed and judgment entered for the defendant upon the award.</p> <p>—Judgment having been entered, the plaintiffs took this appeal, filing sixty-seven assignments, specifying the dismissal of the plaintiffs’ several exceptions and the entry of judgment for the defendant on the report of the referee, for error.*</p>

4 OF PHILADELPHIA. COUNTY. January Term 1891, Sup. Ct.; court below, No. 98 September Term 1890, C. P. No. 4. On September 6, 1890, the National Savings Fund & Building Association issued a scire facias sur mortgage against Samuel D. Waters, with notice to the Real Estate Title Insurance & Trust Co., terre-tenant.

4 OF PHILADELPHIA COUNTY. January Term 1891, Sup. Ct.; court below, No. 64 September Term 1889, C. P. No. 4.

<p>(a) A will provided as follows : “ I give and bequeath to my son, . . . . all my real and personal estate. Should he die without leaving to any person, then to my brother.....during his life; after his death, to all the children and grandchildren of my sister-in-law, .... : ”</p> <p>1. The first sentence quoted gave a fee-simple to the son in the testatrix’s real estate, not to be taken away by the words of doubtful meaning in the second, which, whether they were merely precatory or imposed a condition, were inoperative and void as to the devise.</p>

<p>(a) Under a lease of real estate for five years, executed under seal by the lessee alone, the latter entered and remained in possession. By a separate writing under seal, attached to the lease, the defendant became responsible for the lessee’s covenants, for the full time in which the latter might retain possession thereunder:</p> <p>1. In such case, the legal effect of the lessor’s omission to sign the lease, under the statute of frauds, had no bearing on the defendant’s responsibility ; for, under the terms of his own contract, the defendant was liable as surety, so long as the lessee remained in possession of the premises under the terms of the lease.</p>

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.</p> <p>January Term 1891, Sup. Ct.; court below, No. 562 March Term 1889, C. P. No. 1.</p> <p>On March 12, 1889, the Philadelphia National Bank filed a bill in equity against the Pennsylvania Warehousing & Safe-Deposit Co. and E. R. Pemberton. Separate answers having been filed, and issue joined, the cause was referred to Mr. Isaac D. Yocum, as examiner and master, who on June 2,1890, filed a report showing a contention between the parties, in brief as follows:</p> <p>In 1887, the plaintiff bank owned absolutely a large quantity of prunes previously received as collateral security for certain discounts. The prunes were stored in certain New York warehouses, and the plaintiff held the warehouse receipts. The defendant company, of which defendant Pemberton was president, was interested in certain prunes held by another warehouse company, by reason of having guaranteed loans made by the latter to the same persons whose notes had been discounted by the plaintiff bank. By arrangement between officials of the plaintiff bank and Pemberton, on behalf of the defendant company, the latter agreed to take charge of the plaintiff’s prunes, to pay the duties, to weigh them, to attend to the releasing of attachments upon them, and in general to assume the entire care and custody of them and to prepare them for sale. On July 22, 1887, an auction sale in New York, made to feel the state of the market, disclosed the fact that a loss on the prunes was likely to be had. On the next day, Pemberton as president of the defendant company, wrote a letter to the plaintiff bank presenting the necessity for prompt action, and proposing that his company would “ continue to render its services and take the entire charge of all matters appertaining to the sale, and to guarantee all sales, for a commission of five per cent upon any sum realized.” The proposition was duly received by the plaintiff bank, and at a meeting on July 25th, the bank board by resolution “ authorized the employment of the said company for this purpose.” So far, the facts were undisputed. It was claimed by the plaintiff that,the acceptance of the proposition was at once communicated to Pemberton verbally. On the part of the latter, it was denied that any communication of the acceptance of the proposition was ever made. It was not disputed, however, that the bank turned over to Pemberton all the warehouse receipts and papers of every description, relating to the prunes, and that the latter thereafter conducted all the correspondence, and paid all bills and traveling expenses while attending to the business.</p> <p>In the spring of 1888, it became necessary for the plaintiff bank to dispose of the prunes before the heat of summer should come. The plaintiff alleged that Pemberton then asked that one Jansen, a larg’e wholesale dealer in New York be allowed to make a bid for them. On the other hand, Pemberton testified that the plaintiff bank asked him to obtain a bid from Jansen. At all events, Jansen came on from New York, but before seeing the bank officials, he asked Pemberton if the latter would take a one half interest in the prunes, if the former should buy them from the bank. Pemberton agreed to do so. Jansen and Pemberton then called together on the bank, and Jansen made an offer for the prunes that was declined. Negotiations continued, however, and on May 1, 1888, a sale of the prunes to Jansen was concluded. At this time, the plaintiff did not know that Pemberton was interested with Jansen in the purchase. There was no evidence that he had anything to do with fixing the prices offered by Jansen before the sale was made; and no bad faith, mismanagement, or fraud of any kind was charged .or imputed to him in the care and custody of the goods. It was admitted that in the negotiations which finally culminated in the sale, the bank officials retired from Pemberton’s presence to consult as to the propriety of accepting the bid presented for Jansen. After the sale, Pemberton attended to the reweighing and re-coopering of the prunes, when necessary, and to all other necessary details. Jansen paid for the prunes by his own notes, drawn to his own order and indorsed by himself. On July 31, 1888, Pemberton, as “president,” submitted his expense account, etc., and asked for payment thereof and for services rendered. Payment in full was made by the plaintiff bank on August 14, 1888. Jansen was successful in handling and selling the prunes bought from the plaintiff, and prior to October 6, 1888, had sold them all so as to realize a profit of $15,553.38, of which Pemberton received one half, to wit, $7,776.69, less the sum of $408.61 about which there was an unsettled dispute. In February, 1889, the plaintiff bank learn ed for the first time that Pemberton was interested with Jansen in the purchase of the prunes, and filed this bill for discovery of the amount received and for an account.</p> <p>On June 2,1890, the master filed a report in part as follows :</p> <p>The facts in dispute are few. Practically the only facts in dispute are, Was the defendant, F. R. Pemberton, notified of the action of the board of directors of the complainant on July 25, 1887, in which they authorized the acceptance of his offer to act as sales-agent, contained in his letter of July 23, 1887 ; and did he afterwards act as sales-agent.</p> <p>—Both these facts the master found against the plaintiff, and proceeded:</p> <p>Mr. Freedley, for the plaintiff, now goes a step further, and contends that if the defendant Pemberton was, as the master has found, the agent for the care and custody only of these prunes, he must still account for the profit he has made. . . .</p> <p>The master is well aware of the line of cases in which, where a trust of any kind exists and is violated, it is held that the price paid does not alter the liability to account for a profit made. The master is of opinion, however, that this case does not come within that line of cases.</p> <p>The bank officials made up their minds to sell, against the advice of Mr. Pemberton, and the master is unable to see what possible difference it made to them who the purchaser was. We have here the case of an agent for the care and custody only, who did his duty faithfully and well in all that pertained to his agency, violating no confidence and betraying no trust in the performance of that duty. The principal gave its agent no confidence, and now complains that the agent did not give it his.</p> <p>Having done his duty faithfully and well, the master is unable to see that he owed any duty to the complainant to di ;- close the fact that he was interested in the purchase. He was not possessed of any information that his principal did not possess. When the bank officials decided to sell, they conducted the negotiations themselves. They said to Mr. Pemberton, “We are going to sell,” “We are going to attend to this matter ourselves,” and they did. Whatever confidential relations, if any, existed or had existed were terminated then, and in their dealings with Mr. Pemberton, touching the sale, they dealt with him at arms’ length and as a stranger. As appears from the testimony, Mr. Pemberton had nothing to do with fixing the price which Jansen bid, and when he changed the terms of Jansen’s bid [as to time of payment] it was certainly enough to put the bank officials upon inquiry. Was it not notice to them that he had an interest in the bid ? If the law goes as far as the learned counsel for the complainant says it does, the janitor of a building could not have a secret interest in its purchase.</p> <p>The master has very carefully read and considered every case which was cited by the learned counsel for the complainant, and has not been able to find one that sustains him in this controversy. In every one there was a relation of confidence existing, or there was a duty imposed, the betrayal or nonperformance of which was visited with the usual penalty.</p> <p>—Considering Fox v. Macreth, 1 Lead. C. in Eq., 4th Am. ed., 188; Ex parte Lacey, 6 Ves. 616; Aberdeen R. Co. v. Blakey, 1 MacQ. H. L. 471; Cumberland Coal Co. v. Sherman, 30 Barb. 553 ; Bane v. Brown, 56 N. Y. 288; Tait v. Williamson, L. R. 2 Ch. App. 555; York Bldg. Co. v. MacKenzie, 8 Brown P. C. 42; Beeson v. Beeson, 9 Pa. 284; Mishod v. Girod, 4 How. 533; Bartholemew v. Leech, 7 W. 472; Rankin v. Porter, 7 W. 387; Murphy v. O’Shea, 2 Jones & L. T. 422; Dart on Vendors, 42, the report continued:</p> <p>The master, therefore, after a careful consideration of this case, as to the defendant Pemberton, is of the opinion that the complainant has failed to make out a case which entitles it to an accounting from him, and as to him recommends a decree dismissing the present bill with costs.</p> <p>It was hoped that this would be decisive of and end the whole case; but the learned counsel for the complainant further insists that he is entitled to a decree against the defendant warehousing company, because in its answer it says that the offer contained in the letter of July 28,1887, was accepted, and that it, through its president, Pemberton, did act as sales-agent, and that it did, in point of fact, make the sale to Jansen.</p> <p>It is admitted that the corporation defendant, the principal in this case, did nothing except through its agent Pemberton, and the master having found that the said agent did not accept the agency, and did not act as agent, is now asked to find that the principal did both. This is rather an anomaly. It is, however, the fact, that the answer of the defendant corporation does say that it did act as sales-agent and did make the sale in question, and is therefore entitled to the full commission which it earned. No testimony was offered by the defendant corporation.</p> <p>The master has little difficulty in dealing with this branch of the case. In the first place it is laid down as a legal principle in Daniell’s Ch. Pr. & PL, 5th ed., page 735, that a corporation answer is only a pleading. If this is true, taking into consideration what the master has decided as to the defendant Pemberton, it is an end of complainant’s case, so far as the corporation defendant is concerned.</p> <p>However, giving to this corporation answer the effect of an answer by an individual, has the complainant any case against it ? Admitting that it did make the sale of these prunes, is the complainant entitled to a decree against it ?</p> <p>The answer, which must be taken as an entirety, not as partly true and partly false, says the sale was made to Jansen. If this is true, and it must for present purposes be so taken, the complainant is not entitled to a decree in its favor.</p> <p>The learned counsel for the complainant contends, however, that the act of Pemberton, the president of the corporation defendant, in taking a secret interest in the purchase of the prunes, was a fraud for which the corporation itself is liable. Is this true ?</p> <p>It is admitted, generally speaking, that,a corporation is liable for the torts or frauds of its president committed within the line of his authority, and it is contended that the corporation president, Pemberton, did so act in this case. Did the president act within the line of his authority in this case, in making the purchase in question? The master is of opinion that he did not. The act of Pemberton, the president of the corporation defendant, in writing the letter of July 23, 1887, was undoubtedly without authority from the board of directors, although afterwards ratified by the board. It certainly never authorized the taking of a secret interest in the purchase, by its president, and admittedly never received any portion of the profit realized. Had its president seen fit to enter into other private speculations for his own benefit, it certainly will not be contended that the corporation would have been liable for his acts.</p> <p>The corporation defendant certainly never bought prunes before. It is not within its charter powers to do so, and the act of its president in this case was his individual act. He had no authority to make any such purchase, nor take any such interest as he did in this case. If made without authority, and the master finds he did it without authority, not being within his powers as president; the corporation is not liable to account to the complainant in this case. If made within his authority, but for his own private benefit, as he did in this case, the law is still with the defendant corporation.</p> <p>The distinction is now well recognized between the' act of an agent within his authority and for his master’s benefit, and the act of an agent within his authority, but for his own benefit solely. In the former case the master is liable. In the latter he is not. Numerous authorities could be cited to maintain the latter proposition. Two or three only will be cited.</p> <p>In British Co. v. Railway Co., 18 Q. B. Div. 714, the facts were as follows: A broker desired to buy stock of a certain corporation. He went to its secretary and asked if the stock was all right. The secretary answered that the transfers of stock were valid, and that the stock proposed to be transferred existed. It was admitted that the secretary was the proper person to give such information. The stock was purchased. It afterwards appeared that the stock in question was an over-issue and fraudulent, and that the secretary was interested in it and in the proceeds of its sale. It was held that, while he was the proper person authorized to answer these inquiries, and acted within the scope of his authority, yet as he did it for his own benefit, the company was not liable.</p> <p>In that case, Lord Esher, M. R., says: “ The secretary was held out by the defendant as a person to answer such questions as those put to him, in the interest of the plaintiff, and if he had answered them falsely on behalf of defendants, he being authorized to give answers for them, it may well be that they would be liable. But, although what the secretary stated related to matters about which he was authorized to give answers, he did not make the statements for the defendants, but for himself. He had a friend whom he desired to assist and could assist by making the false statements, and as he made them in his own interest or to assist his friend, he was not acting for the defendants. The rule has often been expressed in the terms, that to bind the principal the agent must be acting for the benefit of the principal. That, in my opinion, is equivalent to saying that he must be acting for the principal. I know of no such case where the employer has been held liable, when his servant has made statements not for his employer, but in his own interest.” This case was cited and approved in Fried-land v. Company, 130 U. S. 426. .</p> <p>The general rule, said Willis, J., in Barwick v. Joint-stock Bank, L. R. 2 Exch. 259, 265, is that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master’s benefit, though no express command or privity of the master is proved. This principle is also recognized in a very late case in Pennsylvania, that of McClung v. Dearborne, 134 Pa. 396.</p> <p>The master is therefore of opinion, that, as the act of the president of the corporation, in this case, was not within his authority and was for his own benefit, the corporation defendant is not liable for what he did.</p> <p>It was also argued that the principal in this case would only be liable for the actual amount received; that, as it received nothing, it is liable for nothing. Many cases, among them Seguiñ’s App., 108 Pa. 142, were cited in support of this proposition. While this is the law, the master has not deemed it essential or necessary in this case to discuss it. If the master was inclined to do so, the length of this report would restrain him from so doing.....</p> <p>The master, therefore, finally reports that in his opinion, the complainant has failed to substantiate the averments contained in the bill, and has failed to show that it is entitled to the equitable relief prayed for. He therefore recommends that a decree be entered as to both defendants, dismissing complainant’s bill with costs.</p> <p>—To the report of the master the plaintiff filed thirty-five exceptions. These exceptions having been overruled by the master and renewed on the filing of the report, after argument thereof before the court in banc a decree was entered dismissing the exceptions and confirming the report of the master. Thereupon, the plaintiff took this appeal, specifying the dismissal of the exceptions and the confirmation of the report for error.</p>

4 OP PHILADELPHIA COUNTY. January Term 1891, Sup. Ct.; court below, No. 208 March Term 1888, C. P. No. 4. On March 3, 1888, Isaac K. Flisher brought trespass against George Allen, Jr. Issue. At the trial, on October 21, 1889, the jury returned a verdict for the plaintiff for $250. On October 25th, each party filed a motion for a new trial, and on October 31st, the plaintiff’s bill of costs was filed, amounting to $215.49.

<p>1. Where, prior to an assignment for creditors, accounts were stated yearly by a creditor, with usurious interest charged, and notes given by the debtor for the balance shown on settlement, other creditors, in the absence of fraud, have no standing to except to the allowance of the notes, including such interest, out of the assigned estate.</p> <p>2. It is not now unlawful for a debtor to pay more than six per cent interest; and a creditor has no right to attack such a transaction, unless the agreement to pay a higher rate was part of a scheme to cheat and defraud the other creditors of the debtor: Per Mr. Chief Justice Paxson. [See act of May 28, 1858, P. L. 622.J</p> <p>(a) A debtor, prior to an assignment for creditors, assigned to a creditor, jointly interested with the debtor in a trade in tomatoes, “ all dividends to be paid” thereafter out of another assigned estate, “to be held in lieu of any loss that may be sustained in the said sale of tomatoes bought for the joint-account trade: ”</p> <p>3. The parol testimony, submitted in explanation of the ambiguity in the assignment, was sufficient to authorize the court below to reverse the finding of an auditor that the assignment was made as a discharge of the creditor’s claim, and to award to the balance unpaid thereby a dividend out of the debtor’s estate.</p> <p>4. The rule that parol testimony is inadmissible to contradict or vary the terms of a written instrument, is applied only to suits between the parties to the instrument. It cannot affect third persons, who, otherwise, might be prejudiced by writings from which a part of the truth was omitted: Per Arnold, J.</p>

<p>APPEAL BY GERMANTOWN DISPENSARY & HOSPITAL EROM THE COURT OE COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY.</p> <p>July Term 1890, Sup. Ct.; court below, No. 249 March Term 1887, C. P. No. 2.</p> <p>On April 23, 1887, the attornejr general, at the relation of James A. Wright, filed a hill in equity against the Pauline Temporary Home and Hannah W. Haoker, treasurer thereof, averring:</p> <p>That the Pauline Temporary Home was incorporated by the Court of Common Pleas of Philadelphia in the year 1881, the declared object as set forth in the charter being “ the establishment and maintenance, within the Twenty-second ward of the city of Philadelphia and state of Pennsylvania, of a home for poor children not otherwise properly provided for, until such time as their parents or friends shall be in a position to care for them, or suitable places can be found for them by the association. It will be the main rvork of the association to save from the corrupting influence of the almshouse such children as have been heretofore sent to that institution.”</p> <p>That a subscription was made of money for a fund for the purchase of propert}r in the Twenty-second ward of the city of Philadelphia, to be used and occupied by the said corporation. Said money was subscribed by one hundred and twenty-six persons, in the year 1883. With this money, land, situate in the Twenty-second ward, was purchased and conveyed by the seller to the corporation.</p> <p>That the corporation, having determined to abandon the scheme of the charity for which it was organized and the charter obtained, with the assent of the contributors had sold the land purchased and conveyed as aforesaid; the sale had been confirmed by the court, and there was in the hands of the treasurer of the corporation the sum of $13,000, resulting from the sale of the land.</p> <p>That the orator was advised that the contributors to the fund could all be ascertained, and also the amounts each one contributed; and if' they were not entitled to have the money distributed among themselves pro rata, then there was a case of a charity where the mode of administering the same had ceased or been abandoned, and the funds belonging to that charity should be appropriated as directed by law; and for these purposes, and for ascertaining who was entitled to the fund and what should be done with it, the aid of a court of equity was required.</p> <p>To the end, therefore, that the court might inquire and ascertain what were the rights of the parties concerned in the premises, and what disposition should be made of the said fund, it was prayed that the court would be pleased to distribute the said fund as by the rules of law and equity it ought to be distributed, and that the orator might have such further and other relief as under the circumstances of the case ought to be given.</p> <p>The defendants filed an answer as follows :</p> <p>“ The defendants admit that a charter was obtained as stated in the bill; that money was subscribed to purchase property, on which there was a house which it was intended to use for the purposes of this corporation; that the amounts respectively paid by the subscribers are unknown to the defendants; that it is quite possible to ascertain with certainty the amounts contributed and by whom; that it is true that the property which was sold under the order of the court was purchased and conveyed to the corporation, and there were no trusts declared respecting the same other than such as result from the character and object of the corporation.</p> <p>“ That it is true that for some cause deemed sufficient by the parties who had organized the corporation and had contributed the funds, the purpose of organizing this distinct corporation for the particular work was abandoned, and this was done under the conviction that other schemes were preferable; that in fact, however, the scheme of the corporation was abandoned and the property has been sold, and that the proceeds remain in the hands of the treasurer of the corporation to be disposed of under the directions of the law under these circumstances. The defendants therefore submit themselves to the direction of the court in the premises.”</p> <p>On June 9, 1887, an order was made referring the cause on bill and answer to Mr. P. Pemberton Morris as master, to inquire into the rights of the parties, all the contributors being entitled to be heard; and if it should appear that the property could be applied and must be applied by the court to a charity similar to that mentioned in the pleadings, to receive and report schemes for that purpose.</p> <p>On February 8, 1888, the master reported recommending a decree awarding two thirds of the fund to the Germantown Dispensary & Hospital, and one third thereof to the Children’s Aid Society & Bureau of Information, such distribution being in accordance with the wishes of the contributors to the fund for the purchase of the real estate appearing. On February 18th, it being shown that certain other claimants to the fund, to wit, the Union Temporary Home, the Western Temporary Home, the Friends’ Home for Children, the Sheltering Arms of the P. E. Church, and the Jane D. Kent Day Nursery, had appeared before the master but were not fully heard and their appearance not noted through oversight, the report was referred back to the master for further hearing. On October 9th, Mr. Morris having died, the court appointed Mr. Robert Hunter Me Grrath, master in his stead, to report a scheme for the distribution of the fund upon the testimony then taken.</p> <p>On November 6,1889, the master reported that, from the beginning of its operations as a voluntary society, the Pauline Temporary Home leased and occupied the premises known as No. 17 Seymour street, Germantown, and in April, 1882, removed to No. 108 West Penn street, where it continued till April 30, 1883; that in the spring of 1883, Mr. Wright, the relator, collected the sum of $16,943.90 from one hundred and twenty-six persons, a part of which was pledged to buy real estate, and a part was given for the general purposes of the Pauline home; that out of this fund $15,000 was applied to the purchase of certain real estate on the northwest side of Penn street in the Twenty-second ward, and the balance, less $502.74, was applied to improvements upon said property, to adapt it to the uses of the home; that, in the deed conveying the real estate to the Pauline home, no trusts were created or specified, and the title vested in the corporation for its ordinary purposes; that the premises so purchased were occupied by the home until May 20, 1885, when, for certain reasons, the board of managers finally suspended operations; that in October, 1885, and December, 1886, the real estate in question was sold in two parcels, one of which was purchased by the German. town Dispensary & Hospital, the entire sum realized from the sales, to wit, $13,000, being paid to Hannah W. Hacker, the treasurer of the Pauline home. The master also reported that the Pauline Temporary Home, while in operation, was supported by voluntary contributions, and by the sums paid to it for the board of children under its care by the guardians of the poor, or other charitable societies, from which they were receiv ed; that it had no shares of stock, nor did it seek to or make profits, and was therefore, legally speaking, a charitable corporation ; citing: 2 Morawetz on Corp., § 1082; Thiel College v. Mercer Co., 101 Pa. 530; Miller's App., 10 W. N. 168; Donohugh’s App., 86 Pa. 306, 314; Philadelphia v. Women’s Ch. Ass’n, 125 Pa. 572. Having found that the Pauline home was a charity, the master proceeded:</p> <p>This being so, the question arises whether its funds, springing from the sale of real estate, belong, upon suspension of its operations, to the contributors to the fund with which such real estate was originally purchased.</p> <p>These contributors, one hundred and twenty-six in number, subscribed to a fund with which a lot of ground was bought, and title made by the grantor directly to the corporation of the Pauline Temporary Home. No trusts were specified or created in this deed, and the property vested in the corporation for its ordinary corporate purposes, which were chiefly to maintain a temporary home for poor children, not otherwise provided for, committed to the almshouse in Germantown. This class of children is still in existence.</p> <p>Many of the original contributors to the fund have assigned their supposed interests to the Germantown Dispensary & Hospital, an institution located in Germantown. The learned counsel for these contributors, at the argument, did not contend that these assignments were of legal effect. The Sheltering Arms of the Protestant Episcopal Church, however, claims an interest in the moneys before the court, through an assignment to it executed by Mr. Thomas A. Biddle, who contributed $500 to the original fund, and the decision called for upon the validity of this assignment necessarily involves all the others.</p> <p>It has been suggested as a great hardship, a thing contrary to common sense, that contributors to a charitable corporation, which after a time fails and suspends operations, should be unable to control the property they have given to that particular corporation, but should see it pass to an institution, kindred perhaps in its operations to the defunct one, but still an institution in which they took no interest and which they never would have aided. This, upon reflection, turns out to be a purely imaginary hardship, illustrating how strong in man is the instinct for possessing and controlling property.</p> <p>All apparent hardship ceases when it is realized that a simple unconditional gift of money or other property to a charitable corporation, divests the donor of any further title to interest in, or right to control the thing given, as absolutely as does the simple gift of the same property to an individual. The law permits men to affix any condition to the transfer of property that is not expressly prohibited by statute or by public policy; and it is open to any contributor to a charitable corporation to provide, in the instrument of donation, for a return to him of the property contributed, in the event of the suspension or dissolution of the corporation. If he neglect to make such provision, his feelings must suffer through his own omission.</p> <p>Upon the dissolution of a business corporation, its property, after creditors are satisfied, is divisible among its shareholders. Now, why is that? Why, because those shareholders own the property, the interest of each individual consisting of the number of his shares and being represented by his certificates of stock. For preeisefy the same reason there can be no distribution of the property of a charitable corporation among its members, contributors or managers, upon its dissolution. They do not own the property. They manage and control it to be sure ; but the ownership belongs to the indefinite persons constituting from time to time the class for the benefit of which the particular corporation exists and conducts its operations.</p> <p>When the real estate out of which the fund before the court has come, was conveyed to the Pauline Temporary Home with no special trusts expressed, that corporation, having power to take property only for its corporate purposes, became the grantee for those purposes; so that, while the legal title vested in the corporation, the real beneficial interest vested in the class of poor children which it relieved, and remains in them to this moment, and will remain so long as a single individual of that class exists. The Pauline Temporary Home is a trustee. The cessation of its active existence can give the contributors to it no right to divide among themselves, or transfer to other objects, however worthy, property charged with a trust. The right of the contributor to transfer and assign to a charitable society, depends upon his right to apply his interest to his own uses, had he so preferred.</p> <p>Nor are these clear principles contradicted by the authorities. There is even an express decision that contributions to a college are absolute. “ In addition to this,” said the court, speaking of trustees’ right to dispose of corporate property, in view of its consisting, in part, of donations, “ the donations were absolute and unconditional. The donors retained no interest, present or future, in the sums donated, nor acquired thereby any interest whatever in the corporate property, nor any right to control it: ” People v. College of California, 88 Cal. 166.</p> <p>—Citing and considering upon the same question: Doiiohugh’s App., 86 Pa. 806, 314; Thomas v. Ellmaker, 1 Pars. 98; Humane Fire Co.’s App., 88 Pa. 389; Potts v. Disabled Firemen’s Ass’n, 1 Leg. Gaz. R. 369; Commonwealth v. Hibernia Eng. Co., 1 W. N. 187; Riddell v. Harmony Fire Co., 8 Phila. 310; Bethlehem Bor. v. Fire Co., 81 Pa. 445; Mayer v. Society, 2 Brewst. 385; Barr v. Weld, 24 Pa. 84; Brown v. Lutheran Church, 23 Pa. 495; Pickle v. McKissick, 21 Pa. 232; Attorney General v. Earl of Craven, 21 Beav. 392; Yiney v. Abbott, 109 Mass. 300; Sewall v. Roberts, 115 Mass. 262; Dennison v. Goehring, 7 Pa. 175; Moggridge v. Thackwell, 7 Yes. 36, 83, 86; Minot v. Baker, 147 Mass. 348; Perry on Trusts, §§ 719, 723; Jackson v. Phillips, 14 Allen 539, 580; Witman v. Lex, 17 S. & R. 88; Zimmerman v. Anders, 6 W. & S. 218; Pickering v. Shotwell, 10 Pa. 23; Mann v. Mullin, 84 Pa. 297; Magill v. Brown, Brightly, 346; Philadelphia v. Girard, 45 Pa. 28; Manners v. Library Co., 93 Pa. 165; Lower Dublin Academy’s Pet., 8 W. N. 564; § 10, act of April 26, 1855, P. L. 331, the master was of the opinion that upon the dissolution of a charitable corporation, its real estate did not revert to the donors or their heirs; that the contributors then had no interest in the fund, and their wishes as to its distribution had no absolutely controlling influence with the court; and that a court of equity had jurisdiction to administer the fund, either by the appointment of a new trustee or by carrying into effect the purpose of the settlers, cy pres.</p> <p>Examining into the character of the numerous claimants, the master reported that the Germantown Dispensary & Hospital was an institution established and maintained in the Twenty-second ward, and benefited poor children by caring for them when ill; annually expending a sum in such care of poor children exceeding the interest that would be realized from an investment of the fund before the court. He also found that the Children’s Aid Society & Bureau of Information was a corporation formed under the laws of Pennsylvania, having as its objects, to provide for the welfare of any destitute children that might come under its control, to aid and co-operate for the protection of children from cruelty, to establish and maintain for the public a bureau of information, and to remove children from almshouses throughout the state of Pennsylvania. Showing fully the character and methods of operation of said society, and citing and considering Attorney General v. Brandreth, 1 Younge & Col. Ch. 200; Attorney General v. Boultbee, 2 Yes. Jr. 380, 388; Attorney General v. Glyn, 12 Sim. 84; Martin v. Margham, 14 Sim. 233; Manners v. Library Co., 93 Pa. 165, the master recommended that the fund be awarded to the Children’s Aid Society, etc., with certain provisions as to the application thereof.</p> <p>To the master’s report, a number of the claimants filed exceptions. Those filed by the Germantown Dispensary & Hospital alleged that the master erred :</p> <p>1. In finding as a matter of law that the expressed wishes of the contributors, who appeared by counsel, should be altogether ignored in the selection of a successor to. the Pauline home for the charities represented before him.1</p> <p>2. In finding that the fund should be awarded to a charity, whose object was the relief of such poor children only as had been committed to the public almshouse.3</p> <p>3. In awarding the fund to a society not maintained and established within the Twenty-second ward of the city of Philadelphia.3</p> <p>4. In not awarding the fund to the Germantown Dispensary & Hospital, the only kindred charity maintained and operated in the Twenty-second ward of the city of Philadelphia.4</p> <p>6. In not awarding the fund, or any portion thereof, to the Germantown Dispensary & Hospital.5</p> <p>Said exceptions having been argued before the court in banc, an opinion was filed on February 15,1890, Pjennxpackbr, J., dismissing all the exceptions filed, and entering a decree awarding the fund, less counsel fees to the relator and the costs, to the Children’s Aid Society, etc., to keep the same invested and to apply the income thereof (1) to the care of poor children not otherwise properly provided for, within the Twenty-second ward of Philadelphia, who else would presumably be sent to the almshouse; (2) to the care of such children from Philadelphia county; (3) to the care of such children from Pennsylvania, giving preference to those living nearest to Philadelphia county. Thereupon, the Germantown Dispensary & Hospital took this appeal, specifying that the court erred:</p> <p>14-5. In dismissing the exceptions filed.1 *° 5</p> <p>6, 7. In awarding the fund to the Children’s Aid Society, etc., and not to the said dispensary and hospital.</p> <p>Counsel cited: Section 10, act of April 26,1855, P. L. 331; Zeisweiss v. James, 63 Pa. 465; Mann v. Mullin, 84 Pa. 297; Jones v. Renshaw, 130 Pa. 327.</p>

APPEAL by defendants from the court of common pleas NO. 3 OF PHILADELPHIA COUNTV. January Term 1891, Sup. Gt.; court below, No. 739 March Term 1889, C. P. No. 3. On Majr 1, 1889, William Rodenhausen filed a bill in equity against Jerome Craven and George F. Craven, charging the defendants with the maintenance of a nuisance; praying for an injunction. Issue having been joined, the cause was referred to Mr. W. 3. Shoemaker, as examiner and master.

4 OF PHILADELPHIA COUNTY. January Term 1891, Sup. Ct.; court below, No. 144 March Term 1890, C. P. No. 4. 'On February 18, 1890, Barton E. Tift brought assumpsit against the Quaker City National Bank, to recover for services rendered. Issue.

<p>[To be reported.]</p> <p>(«) A testator bequeathed and devised property to trustees, directing that certain sums be paid out of the income to certain of his children annually during life, the net balance of income to be divided annually, per stirpes, among his five living children, the issue of two deceased children, and the issue of any other of his children who might die leaving issue.</p> <p>(6) Such distributions were directed to be made annually, until the death of the last survivor of the testator’s children, when the principal was to be divided equally, per stirpes, among the issue then living of the seven children. After the property went into the hands of the trustees, a son of the testator died, leaving no issue surviving him:</p> <p>1. The correct interpretation of the will is that the distributees of the in come were to be ascertained at each annual distribution, by a formula which the testator provided, to wit, they should be the living children of the testator, and the living issue of deceased children, the latter to take in the right of the parent, or per stirpes.</p> <p>2. Each child, living at the death of the testator, took a vested interest in the income, but for his own life only, not for the life of the last survivor; wherefore, on the death of the son without issue, his share fell in, reducing the number of the distributees, and his administrator was not entitled to any income subsequently accruing.</p>

3 OE PHILADELPHIA COUNTY. January Term 1891, Sup. Ct.; court below, No. 514 June Term 1890, C. P. No. 3. On June 28, 1890, John Sheridan and Catharine Ann Sheridan, his wife, in right of said wife, brought trespass for negligence against Eli Krupp. Issue.

<p>APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 3 OP PHILADELPHIA COUNTY.</p> <p>January Term 1891, Sup. Ct.; court below, No. 172 December Term 1888, C. P. No. 3.</p> <p>On November 19, 1888, William H. Eisenbrey brought trespass against the Pennsylvania Company for Insurance, etc., trustee under the will of Jane Thomas, deceased, to recover for personal injuries alleged to have been received in consequence of negligence of the defendant in permitting a fence, with a gate or door therein, to be erected in front of certain premises on Filbert street in Philadelphia. The defendant’s plea was not guilty.</p> <p>At the trial on October 31, 1890, the following facts were shown on the part of the plaintiff:</p> <p>About seven o’clock in the evening of November 7,1888, the plaintiff, then sixty-nine years of age, was passing along the north side of Filbert street. When in front of house No. 1421, a gate or door in a picket fence, enclosing the front steps, was suddenly thrown open and struck against him, causing him to lose his balance and fall. In his fall he received a fracture of the left thigh. On cross-examination he testified: “ Q. Your claim is that, as you were passing this house, the •gate or door was suddenly thrown open, and struck you in the breast, knocking you down? A. Yes, sir. Q. The accident was caused by the violent throwing open of this gate without warning to you ? A. Yes, sir.”</p> <p>The house at No. 1421 Filbert street was built in 1842, and at the time of its building it receded four feet from the street line. By a city plan, confirmed April 23, 1888, the four feet of recession were added to the width of the street, but no proceedings were ever had by the city to obtain possession of the additional ground thus embraced in the street. About a year before the plaintiff’s accident, a picket fence was erected enclosing the front steps of the house on three sides, except that the lower step projected beyond it. The width of the structure, across the steps, was seven feet and two inches. The fence extended into the street seven feet beyond the house line. The entire width of the pavement, from the house line to the curb, was seventeen feet nine inches. In the front of the fence was a gate or door two feet, four and one half inches wide.</p> <p>An ordinance of the city, enacted September 28, 1864, declared it a nuisance to maintain any cellar-door, porch or steps, extending more than four feet six inches into any footway of any street of the width of fifty feet or upwards, or a proportionate distance on streets of less than fifty feet. On June 6, 1885, that ordinance was amended by adding the following proviso: “ Provided, that this section shall not apply to any street one hundred feet wide or upwards; and provided further, that such extension shall not reduce the width of the footway to less than eighteen feet.” Samuel L. Smedley, the chief engineer of the city, testified that when the gate in question was opened to its full swing it extended ten inches beyond the nuisance limit of four feet six inches, but when shut it was within the limits in which obstructions were permitted.*</p> <p>Jane Thomas, who died in 1876, was the owner of this house. By her will, duly admitted to probate, she provided as follows: “It is my will and direction that my house and lot, now No. 1421 Filbert street, in the city of Philadelphia, shall, at the value of $20,000, be deemed and taken as a part of the one third of my residuary trust-estate, whereof my sister Sarah R. Bull has the income for life ; and I authorize and empower my executors, until they shall decide it to be expedient to sell the said house and lot, to permit and suffer her, the said Sarah R. Bull, to occupy and use the same as a home for her, she paying the taxes thereon and keeping the same in repair at her own expense while she shall so occupy the same.”</p> <p>The will appointed the defendant company to be the executor thereof.</p> <p>Jarvis Mason, trust officer of the defendant company, being called by the plaintiff, testified as follows:</p> <p>“Q. You know Mrs. Sarah Bull? A. Yes, sir. Q. Has she a life-estate in the property 1421 Filbert street ? A. She has. Q. Did your company have anything to do with putting up this paling or erection about the premises there ? A. No, sir; nothing. Q. Did you ever see it there ? A. I have. Q. Do you know how long it had been there? A. No, sir.”</p> <p>Cross-examination: “Q. You had no right to interfere in. any way, shape, or form with the property, had you ? A. No, sir ; not any. Q. And you had nothing to do with the erection of that fence? A. No, sir; nothing whatever. Q. You accidentally saw it in passing? A. Yes, sir; not as an officer of the company, but merely walking around there occasionally.”</p> <p>Another witness for the plaintiff testified: “ Q. Do you know who occupied the house; was it Mrs. Bull? A. I think it was the lady over in the court-room. Q. She was occupying it at the time the thing was put there, wasn’t she, and she has been there for many years? A. Yes, sir; I think so.” The same witness stated that the fence was taken away soon after the accident to the plaintiff.</p> <p>At the close of the testimony for the plaintiff, a motion for a nonsuit having been overruled and the defendant offering no testimony, the court, Finlbtter, P. J., charged the jury in part as follows:</p> <p>The questions of law which govern the right of the plaintiff in this case to recover I have decided in his favor. In other words, [I have decided that, as matter of law, the defendant in this action is responsible for the injuries which the plaintiff suffered on that occasion.] a In this I may or may not be right, but for the purposes of this case you must take that to be the law. Hereafter, when more time can be given to the consideration of the matter, and when I shall have the assistance of my two brother judges, the questions of law can be considered more at length and with more care. Therefore, the only question for you to determine is, what damages will be proper compensation to the plaintiff for the injuries which he has sustained. . . .</p> <p>Counsel for defendant has requested me to charge you as follows:</p> <p>1.The learned court is asked to direct a verdict for defendants.</p> <p>Answer: I refuse to affirm that point.1</p> <p>—The jury returned a verdict in favor of the plaintiff for $5,000. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error:</p> <p>1. The refusal of defendant’s point.1</p> <p>2. The part of the charge embraced [ ] 3</p> <p>1. There was no negligence on the part of the defendant in the erection complained of; it is not responsible for an illegal act not authorized by it nor within its control. Under the will of Jane Thomas, directing the trustee to permit Sarah Bull to occupy the premises as a home, the latter had an equitable estate for life: Arkwright v. Colt, 2 Y. & C. 4; Loring v. Carnes, 148 Mass. 223. The liability of a trustee bound to permit a cestui que trust to occupy premises, is no greater than that of a landlord who voluntarily transfers the possession to a tenant.</p> <p>2. It is elementary law that a landlord is not responsible for anything done on the demised premises by the tenant, during the term of his lease: Shear. & Redf. on Neg., § 708; Wharton on Neg., § 817; Wood on L. & T., 917; Woodfall on L. & T., *735; Bears v. Ambler, 9 Pa. 193; Grier v. Sampson, 27 Pa. 183; Little Schuylkill Co. v. Richards, 57 Pa. 142; Wunder v. McLean, 134 Pa. 334; Lowell v. Spaulding, 4 Cush. 277; Pretty v. Bickmore, L. R. 8 C. P. 401; Kirby v. Market Ass’n, 14 Gray 250; Ahern v. Steele, 115 N. Y. 203; Offerman v. Starr, 2 Pa. 394; Delaware etc. R. Co. v. Sanderson, 109 Pa. 583.</p> <p>3. The person who actually threw open the door negligently is alone responsible, unless shown to be the servant or employee of a principal responsible for the servant’s act. The fence and door did not constitute a nuisance, and no harm could come to any person by reason of the proper opening of the door. The whole negligence consisted in the improper opening of it. It was not shown who threw it open, and it was incumbent on the plaintiff to show that the person doing this was an employee oí the defendant: Kies*v. Erie City, 135 Pa. 150.</p> <p>1. Under the will of Jane Thomas, the rights of Sarah R. Bull, with reference to the property in question, were dependent upon conditions and contingencies. She could have no interest in it except while actually occupying the house, and her interest was to continue only so long as she complied with the direction to pay the fixed charges. Even if she did comply therewith, the trustee could have determined her occupancy at any time. She was no more than a tenant at will: Hurd v. Cushing, 7 Pick. 169; Burns v. Bryant, 31 N. Y. 453; Johnson v. Johnson, 13 R. I. 467; Herill v. Sizeland, 81 111. 457.</p> <p>2. The trustee, having the option of permitting or determining Mrs. Bull’s occupancy, and being under the duty of seeing that she complied with the conditions under which she held, was vested with such control over the property as to be responsible for a nuisance which it permitted to be erected: Wood’s Law of Nuisances, 78, 141; Wood’s L. & T., 618; Brown v. Railroad Co., 12 N. Y. 486; Irvine v. Wood, 51 N. Y. 224 (10 Am. Rep. 603); McCarthy v. Syracuse, 46 N. Y. 194; White v. Board of Health, L. R. 102 [? ?] Q. B. 219. Where the very existence of a thing constitutes a nuisance, a landlord is responsible; as in the case of a permanent erection impeding access to a public market: Thompson v. Gibson, 7 M. & W. 456; or a dangerous excavation near a highway: Rolle’s Abr., Nuisance (K. 2); Irvine v. Wood, 51 N. Y. 224.</p> <p>3. This erection was a nuisance. It was in violation of the ordinance of 1885, providing that the width of sidewalks should not be reduced by obstructions to less than 18 feet. Any encroachment upon a highway is a nuisance, whether it is actually dangerous to travel or not: Angelí on Highways, § 223; Bacon v. Boston, 3 Cush. 174. It is not a question whether harm could come to any person by “ the proper opening of the door.” If the doctrine of Kies v. Erie City, 135 Pa. 150, be the law of Pennsylvania, a tornado may as well sweep away all the ordinances bn the subject of nuisances.</p> <p>4. The trust officer of the defendant, who “ walked around there occasionally,” evidently did so in discharge of the duties incumbent on the defendant with respect to the supervision of the property. His knowledge of the existence of the nuisance, acquired by inspection on those occasions, was the knowledge of the defendant. With that knowledge, the defendant was negligent in permitting it to remain, neither saying nor doing anything about it. And the defendant owed a duty, both to the estate of the testatrix and to the public, to see that no nuisance was maintained upon the premises.</p>

4 OP PHILADELPHIA COUNTY. January Term 1891, Sup. Ct.; court below, No. 436 December Term 1889, C. P. No. 4. On December 16, 1889, William MacGeorge, Jr., brought assumpsit against tbe Harrison Chemical Manufacturing Co., Limited, filing a statement of claim to recover as the bolder for value of a note, duly protested for non-payment, of which the following was a copy: |300. Philadelphia, Pa., June 11,1889.

<p>(a) A mechanics’-lien claim was filed by Bohem, successor to Geissinger & Bohem, against Seabury as owner, for a portion only of work done under an entire contract between Geissinger and Seabury, but with no averment that the contractor had completed the contract, or had been excused or prevented therefrom:</p> <p>1. The claim as filed failing to aver performance of the entire contract or any relief of the contractor therefrom, and, moreover, as there was no assignment of the contract to the claimant the latter was a stranger thereto, it was not error to strike the claim from the record as defective.</p> <p>2. The fact that Geissinger, subsequent to the contract, entered into partnership with Bohem, and that the latter was the legal successor of said firm, did not create a contract relation between him and Seabury, or authorize him to file a lien for work done under a contract between Geissinger and Seabury.</p>

January Term 1891, Sup. Cf.; court below, No. 161 C. P. in Equity.

<p>[To be reported.]</p> <p>(a) An employee of an iron company was engaged in carrying to its mill a lot of bar-iron, unloaded the day before from a railroad car, and piled up between the two tracks of a private siding on the iron company’s ground. The siding was connected with two railroads, by each of which freight was shipped to and from the mill:</p> <p>1. In an action by the employee against one of the railroad companies, for personal injuries caused by negligence in shifting its cars, and received by the plaintiff while so carrying the iron, the question whether the siding was the “ premises ” of the defendant, within the meaning of § 1, act of April 4, 1868, P. L. 58, was immaterial.</p> <p>2. For, as the plaintiff was not employed in any business connected with the railroad, and his work had no connection with the prior unloading of the iron, he was not within the provisions of said act: Richter v. Penna. Co., 104 Pa. 511, followed; Cummings v. Railway Co., 92 Pa. 83; Balt. etc. R. Co. v. Colvin, 118 Pa. 230; Stone v. Railroad Co., 132 Pa. 206, distinguished.</p> <p>Under the circumstances of this case, the court could not declare the plaintiff guilty of contributory negligence, as a matter of law: how long he might prudently continue at work, after seeing the shifting engine pass, and what degree of observation was incumbent upon him, depended upon too many elements to enable, the court to apply a fixed standard of duty.</p>

<p>APPEAL BY DEPENDANT FROM THE COURT OP COMMON PLEAS OF LACKAWANNA COUNTY.</p> <p>July Term 1890, Sup. Ct.; court below, No. 262 October Term 1888, C. P.</p> <p>On July 2, 1888, Abbie Warner, by her next friend, George Warner, brought trespass against the Peoples’ Street-Railway Company of Luzerne county, incorporated by the act of March 28, 1865, P. L. (1866) 1199. Issue.</p> <p>At the trial, on April 14, 1889, testimony was submitted to show that the defendant’s road, upon which cars drawn by horses are used, runs between Scranton and Dunmore along one side of the public highway, the other side being generally used as a carriage- and foot-way; that on March 16, 1888, a severe snow storm occurred, and a drift had formed along the car track near Scranton, from two feet deep in some places, to two feet and a half in others, and extending a distance of about one half a usual city block; that on March 17th, the railway company had shoveled out a way along its track through the drift, not more than wide enough for the passage of its cars; that, in the afternoon of that day, the plaintiff, about eighteen years of age, passing from Scranton towards Dunmore, approached the cut through the drift, to enter it along the streetcar track as the better way for walking.</p> <p>The plaintiff testified that before she entered the cut she looked back and could see no car approaching; but, on the part of the defendant, there was testimony that a car could have been seen for a distance of from a quarter to half a mile from the point from which the plaintiff said she had looked. The plaintiff testified, further, that shortly after she entered the cut she was overtaken by a car, driven very rapidly, when she stepped off the track against the bank of snow; that the horses and front end of the car passed her, but she was struck by the rear end, •thrown beneath the wheels, and injured. On the part of the defendant there was testimony that the car approached the cut, with bells on the horses, slowly up an ascending grade, until at or near the mouth of the cut where there was a switch, and .that the driver was watching for a broken rail at the switch, and did not see the plaintiff until the horses reached the point where she had stepped aside.</p> <p>At the close of the testimony, the court, CóNNOLLY, J., after '.stating the facts disclosed, charged the jury in part as follows:</p> <p>Now, gentlemen of the jury, we will say to you in the out set, as a matter of law, that this plaintiff had a right to travel •upon the line of that street-car track. She had no right to travel there for the purpose of obstructing the business of the company. But in so walking, she was obliged to use ordinary care and vigilance; she must not be negligent in so doing. The company has certain rights over that street which are granted to them by the power of this state. Their charter, which was granted in 1865, gives them the right to use and occupy all streets that they may see fit to select between Scranton and Dunmore, selecting such route as they please between •Scranton and Dunmore, for the purpose of conveying freight and passengers. Now, this was rather an extraordinary state of affairs that existed at this particular time. This lady encountered a snow-drift and slush in the street, and she sought the street-car track for the purpose of avoiding it. Under these circumstances, the company’s agents must have known the condition that the streets were in, and that the road was liable to be and frequently was traveled by passengers, and they should have exercised a little more than ordinary care, under such circumstances, in looking out for them. Be that as it may, we say to you, as a matter of law, that if this plaintiff was in any manner, in any degree guilty of contributory negligence, she cannot recover in this case.....</p> <p>The counsel for the plaintiff request us to charge you as follows :</p> <p>1. If the jury believe the driver of the car saw the plaintiff, or ought by the exercise of ordinary vigilance to have seen her, in time to arrest the accident, he was guilty of negligence, and the plaintiff is entitled to recover if she exercised ordinary care in going upon and walking along the street-car track.</p> <p>Answer: Without any hesitancy we affirm this point.1</p> <p>The defendant has also requested us to charge you:</p> <p>1. That under the charter of the defendant, it has all the rights in the conveyance of passengers and freight conferred on railroad companies by the general railroad law of 1849.</p> <p>Answer: This point we affirm.</p> <p>2. That, under all the evidence, the verdict must be for the defendant.</p> <p>Answer: As already stated to you, gentlemen of the jury, in our general charge, we leave it as a question of fact to you, whether or not there was any negligence on the part of this plaintiff. If you find from the evidence that there was no negligence on her part, then we could not affirm this point. If there was negligence on her part, — if you do find there was negligence on her part, then this point we should have to affirm, but as drawn, and under the circumstances, we will have to leave it as a matter of fact to you to find whether or not there was contributory negligence on her part. As the point is drawn, we refuse to affirm it.a</p> <p>4. That, it being the undisputed evidence that the car could have been seen from a quarter to a half a mile in the direction in which it was approaching, from the entrance of the drift, it was the duty of the plaintiff to look out for a car before placing herself in a place of danger, and if she did not she was guilty of contributory negligence.</p> <p>Answer: We leave this also, gentlemen of the jury, as a matter of fact to be found by you, and under tbe evidence in the case, there being some doubt about some of the facts, we will refuse to affirm this point.3</p> <p>5. That it will not do for the plaintiff to say that she did look for the car and did not see it, when her own witnesses all agree that the car could have been seen for a distance from a quarter to a half a mile from the point where the injury occurred.</p> <p>Answer: Under the facts in the case, we refuse to affirm this point, but leave it to you as a question of fact.4</p> <p>6. That while the rights of passenger-railway companies, generally, are not exclusive upon their tracks, yet, under the charter of the defendant, foot passengers have no right to walk upon its tracks except at crossings, so as to interfere with the lawful use of the same by the company, when, as in this case, the evidence shows there was sufficient room outside of the same for the free and full passage of all travelers on foot as well as with vehicles.</p> <p>Answer: This track is laid upon a public highway, and when the highway becomes obstructed or impassable, the public have a right to use this in common with the defendant company, but have no right to obstruct it any more than is possible under the ordinary use of the same. Under the facts of this case, we refuse to affirm this point, and leave it to you as a fact to find.5</p> <p>7. That the mere fact that the defendant had removed the snow from its tracks so as to permit the free use of its cars, does not give persons on foot the right to use the same so as to interfere with the lawful use of the same by the defendant, so long as there is sufficient way for passage, even though the same may not be quite as convenient.</p> <p>Answer : This point we affirm.</p> <p>—The jury returned a verdict in favor of the plaintiff for $1,050. Judgment having been entered, the defendant took this appeal, assigning for error:</p> <p>1. The answer to the plaintiff’s point.1</p> <p>2-5. The answers to the defendant’s points.8 to 5</p> <p>As to the rights and duties of pedestrians upon the tracks of street railways, counsel cited: Wynn v. Allard, 5 W. & S. 524; Adolph v. Railway Co., 76 N. Y. 580; Thomas v. Railway Co., 132 Pa. 504; Jatho v. Railway Co., 4 Phila. 26; Hegan v. Railroad Co., 15 N. Y. 380; Whitaker v. Railroad Co., 57 N. Y. 295. That, under the testimony, the plaintiff was guilty of contributory negligence: Buzby v. Traction Co., 126 Pa. 559; Pittsb. S. Ry. Co. v. Taylor, 104 Pa. 306; Patton v. Traction Co., 132 Pa. 76; Forker v. Sandy Lake Bor., 130 Pa. 123; Carroll y. Railroad Co., 12 W. N. 348; s. c. 2 Penny. 159; Penna. R. Co. v. Mooney, 126 Pa. 251.</p> <p>Counsel cited: Bolton v. Colder, 1 W. 364; Shear. & Redf. on Negl., § 314; Kay v. Railroad Co., 65 Pa. 273; Taylor v. Canal Co., 113 Pa. 162; Howard Exp. Co. v. Wile, 64 Pa. 201; Cit. Ry. Co. y. Foxley, 107 Pa. 539; Thomas v. Railway Co., 132 Pa. 514.</p>

<p>[To be reported.]</p> <p>(a) A landowner in Scranton having filed a petition for the assessment of damages arising from the construction by the city of a sewer through his property, three viewers were appointed, in accordance with the provisions of the act of May 24, 1887, P. L. 204, afterwards declared unconstitutional in Ayars’ App., 122 Pa. 266.</p> <p>(£>) On the trial of an issue, on an appeal by the city from the award of the three viewers, after the jury were sworn and had been sent to view the property at the request of the city its counsel moved to strike off all the proceedings, on the ground that the board of viewers was illegally constituted and without jurisdiction:</p> <p>1. The objection came too late: the appointment of three viewers under the void act of 1887, instead of seven as required by § 58, act of May 23, 1874, P. L. 267, was an irregularity which did not affect the jurisdiction of the court over the parties and the subject matter under the last mentioned act: the appeal taken had rendered it immaterial.</p> <p>2. In appropriating land for a sewer, a city is not obliged, nor in strictness is it authorized, to take more than is actually necessary for its purpose ; and the extent of the use and control of the land which it shall appropriate therefor is within its own discretion, provided the limits of such necessity are not exceeded.</p> <p>3. Wherefore, in a proceeding to assess damages for such a taking, the city may show that by a joint resolution of councils, approved by the mayor, it has taken corporate action, limiting the extent of the use actually appropriated, and then show, by experts, the effect upon the value of the property of the taking as thus limited.</p>

<p>The test of the liability of an employer, for injuries received by an employee in the performance of his duties, is negligence, not danger; † and when the evidence submitted discloses no negligence of the employer, from which the injuries resulted to the plaintiff, the trial court should direct a verdict for the defendant.</p>

<p>(a) In an action to recover the agreed price for horses sold and delivered, the plaintiff alleged that the sale was absolute and without warranty; the defendant, that, though a warranty was offered, the sale was conditional, to become absolute only on approval after further examination by the defendant, as to the cause of a lameness in one of the horses:</p> <p>1. It was error to exclude defendant’s offer to prove that, immediately after a further examination on delivery, he notified defendant of his refusal to accept; and error, also, in the charge to the jury to give such importance to the question of warranty as to divert attention from the primary question, whether the sale was absolute or conditional.</p>

<p>APPEAL BY DEEENDANT EROM THE COURT OE COMMON PLEAS OE NORTHAMPTON COUNTY.</p> <p>July Term 1890, Sup. Ct.; court below, No. 45 June Term 1884, C. P.</p> <p>On May 16, 1884, Amandus Bacb brought foreign attachment in case against John A. Burke. A narr, not shown in the paper-books, was filed April 5, 1885, and on April 21st, the defendant by his attorneys pleaded non-assumpsit, set-off, payment with leave, etc. It appeared that the case was on the trial-list twice in 1886, four times in 1887, and four times in 1888, and each time marked “ continued.”</p> <p>On December 13, 1888, the defendant presented a petition, verified by affidavit, averring as follows:</p> <p>“ That on or about October 23,1886, A. Bach, plaintiff in this suit against me, came to me and solicited me to make an agreement to assist him in his defence in a certain suit of John Brown, to foreclose a mortgage against him, said A. Bach, Dr. John Buzzard and Joseph Bach, assignees for benefit of creditors of said A. Bach, at No. 2 April Term 1886, as he knew that I was in possession of facts and documents which would make successful his defence in the mortgage suit of Brown. He first said he would cancel his suit against me, in the event of his success in defending against Brown, but I utterly refused to give the preparation and aid he desired unless he would discontinue his suit against me and discharge me forever from all further liability in the same, which he finally agreed fully to do, and said he' would instruct his counsel, Judge Kirkpatrick, to discontinue the suit, and that he would see that his father, the assignee, concurred in and authorized it. Thereupon, in due time I proceeded to prepare a statement of facts, and gather together and compile documentary evidence with reference to the transactions of the New Bangor Slate Company, to show that a sale of all its property had been caused by said Brown on an illegal judgment, which sale had made valueless the capital stock of said company, a quantity of which was held by said Bach, and a much larger quantity by me; and at the request of said Bach I came to Easton three or four different times in the year 1887 for the purpose of joint consultations with my counsel and the counsel of Bach, all of whom were also counsel for the defendants in the suit of Brown v. Bach, prepared with my books, documents, statement of facts for such consultations, and prepared to testify in court in said suit of Brown v. Bach. At one of these times, one of my counsel, Mr. Chase, in open court, introduced me to Judge Kirkpatrick, and in reply to Mr. Chase’s statement that I had come to testify in the suit of Brown v. Bach, (which suit had been continued by plaintiff), in pursuance of the agreement with Bach, to discontinue his suit against me, (which was also on list for trial,) Judge Kirkpatrick said he fully understood the nature of the agreement, that it was all right, but the discontinuance of Bach’s suit against me would better not be entered on the record before the suit of Brown v. Bach was disposed of, as it might affect the latter suit, but that the matter could rest just as safely in the hands of the counsel for both parties. That, as at another time my counsel, Mr. Mackey, gave me a like version of the matter, I rested the same with my counsel, supposing it was all right, and that Bach’s suit against me was in fact discontinued, until in September, 1888, I learned that it was being pressed for trial. I have always held myself ready to go to Easton whenever desired, to testify and assist in gathering up evidence in the suit of Brown v. Bach, and was greatly surprised to learn that such suit had been compromised without advising with or notifying me; and as I have been subjected to great expense in preparing the testimony and attending court, as well as damaged by the non-prosecution of the suit of Brown v. Bach, I pray the honorable court to order a discontinuance of the suit of Bach against me, in accordance with the agreement between us, and the express understanding of the counsel for both parties.”</p> <p>Appended to the foregoing, was a paper signed by the defendant’s attorneys, setting forth that upon said affidavit, as well as their personal knowledge of the facts therein stated, so far as they referred to themselves and to the attorney of the plaintiff. they prayed the court in behalf of the defendant, for a rule on the plaintiff to show cause why a discontinuance of the cause should not be entered. Rule granted as prayed for.</p> <p>No answer to said rule was filed, but depositions having been taken and read by both parties, the court, Sci-iuyleb, P. J., on January 14, 1890, after argument, discharged the rule without opinion filed; exception. Thereupon, the defendant took this appeal, assigning the order discharging said rule for error.</p> <p>Counsel cited: Weeks on Attorneys, § 78; Wilkins v. Burr, 6 Binn. 889.</p>