Volume 2 — Monaghan's Pennsylvania Reports

<p>Error, No. 312, Jan. T. 1889, to C. P. Lebanon Co., to review a judgment for plaintiff on a case-stated, wherein H. T. Hoffman, treasurer of Lebanon Co., was plaintiff, and John Matthes and S. B. Cox were defendants, at March T. 1888, No. 78. Sterrett and Mitchell, JJ., absent.</p> <p>The case-stated agreed upon the following facts, January 19, 1889:</p> <p>“ The defendants are respectively in the wholesale and retail business of vending spirituous, vinous and malt liquors in Lebanon, Pa., incorporated a city on the 25th day of November, 1885, and containing a population of less than twelve thousand and more than ten thousand inhabitants; prior to which time it was a borough duly chartered by the Legislature. Since its incorporation, it has been operated and governed as a city of the fifth class under the Act of Assembly of May 23d, 1874, as revised and amended by an Act of Assembly entitled ‘ an Act to revise and amend an Act entitled an Act dividing the cities of this state into three classes, &c.,’ and Acts of Assembly approved thereafter and applicable to cities of the fifth class. A certificate of incorporation was issued to said city, etc.</p> <p>“ In the year of 1888, the then treasurer of Lebanon county accepted and received of and from the said defendants the sum of $300 each, as the amount of money they were required to pay and he was authorized to receive for said respective licenses under the provisions of the Acts of Assembly approved May the 13th and 24th, 1887, entitled ‘ an Act to restrain and regulate the sale of vinous, and spirituous, malt or brewed liquors or any admixtures thereof’ and ‘ an Act providing for the licensing of wholesale dealers in intoxicating liquors ’ respectively, the said defendants being then and now resident within Lebanon aforesaid.</p> <p>“ The present treasurer, plaintiff above named, demands the sum of $500 from each of said defendants for their licenses, which were duly granted them by the court of quarter sessions on the 12th day of January, 1889, and refuses to accept any less sum for the same for the reason that, as he contends, Lebanon aforesaid is a city of the third class under the provisions of the Act of Assembly entitled “ an Act dividing the cities of this state into three classes ” approved May 23, 1874.</p> <p>“ The defendants deny the right of the said treasurer under existing laws to demand and receive of and from them the said sum of $500 each, and that said Lebanon is a city of the third class under the last mentioned Act, but contend that the said Act of May 23, 1874, as revised and amended by the Act of April x 1, 1876, is unconstitutional and void, and that, therefore, they should pay the sum of $150 each for said licenses, that being the fee required under the provisions of the said Act of May 13th and 24th, 1887, for licenses in boroughs. And further, if the above be not the law,-that the intention of the Legislature was, under the provisions of said Acts of May 13th and 24th, 1887, to fix the rate of licenses for municipalities of a population of more than ten thousand and less than thirty thousand inhabitants at the sum of $300.</p> <p>“ If the court be of the opinion that the license fee of each of said defendants should be $500, then judgment to be entered for ' said plaintiff and against each of said defendants for that amount. If the court be of the opinion that the license of each of said defendants should be $300, then judgment to be entered for the plaintiff and against each of said defendants for that amount. If the court be of the opinion that the license fee of each of said defendants should be $150, then judgment to be entered for the plaintiff and against each of said defendants for that amount. Costs to follow the judgment and either party reserving the right to sue out a writ of error.”</p> <p>The court, in an opinion, by McPherson, A. L. J., reported in 6 Pa. C. C. R. 487, entered judgment in favor of the plaintiff and against each of the. defendants for $500.</p> <p>The assignment of error specified the action of the court in entering judgment in favor of the plaintiff and against each of the defendants for $500.</p>

Appeal, No. 29, Oct T. 1888, of Catharine Keating et al., heirs of Michael McCullough, Jr., deceased, from a decree of the O. C. Allegheny Co., dismissing an' appeal from the Register of Wills, and dismissing a petition for an issue devisavit vel non, at Sept. T. 1887, No. 260.

Appeal, No. 351, Jan. T. 1888, from a decree of the O. C. of Wyoming Co., overruling exception to the report of an auditor, distributing funds in the hands of the Administrators of Benjamin Sickler, deceased. Williams and McCollum, JJ., absent. The following facts appeared from the report of the auditor, B. W. Lewis, Esq.: “Benj.

Error, No. 176, July T. 1888, to C. P. No. 2, Phila. Co., to review a judgment on a verdict for defendant in an action of assumpsit, by Theodore W. Myers and Edward IT. Myers, trading as Theodore W. Myers & Co., against Joseph Orlando To-bias, at Sept. T. 1887, No. 30.

Error, No. 69, Jan. T. 1889, to C. P, No. 4, Phila. Co., to review a judgment for want of a sufficient affidavit of defence, in an action of assumpsit, between J. G. Ditman, as plaintiff, and D. B. Canfield et al., trading as the D. B. Canfield Co., as defendants, at Jan. T. 1888, No. 700. McCollum and Mitchell, JJ., absent. Suit was brought on a promissory note made by the defendants to the order of B. M. Dusenbury & Son, and endorsed by the latter.

Error, No. 40, Oct. T. 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict in favor of the plaintiff, in an action on the case, by Thos. F. Souders and Edward Souders, minor children of Francis M. Souders, deceased, by their next friend Thomas Burns, against George Blendinger, to recover damages for the death of their father, caused by the alleged negligence of the defendant, at March T. 1887, No. 295. Paxson, J., absent.

Error, No. 133, Oct T. 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict in favor of the plaintiff, in an action on the case, by Silas W. Stewart against A. Alston, John G. Forrester and W. C. Alston, trading as A. Alston & Co., to récover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendants, at June T. 1887, No. 283. Sterrett, J., absent. The pleadings are not stated in the paper-books.

Error, No. 29, Jan. T. 1889, to C. P. No. 4, Phila. Co., to review a judgment of compulsory non-suit, in an action of trespass for personal injuries, by John J. O’Keefe, a minor, by his father and next friend, Tames O’Keefe, against J. S. Thorn, at Sept. T. 1887, No. 62. The pleadings are not given in the paper-books. At the trial, the plaintiff was the only witness examined. He testified, inter alia, as follows: Q. You are the plaintiff in this case, by your father ?

<p>Error, No. 128, Oct. T. 1888, to C. P. No. 2 Allegheny Co., to review a, judgment on a verdict in favor of the plaintiff in an action of trespass vi et armis de bonis asportatis, by Charles H. Trent against Joseph H. Gray, Sheriff of Allegheny Co., at April T. 1889, No 468.</p> <p>The facts of the case are stated below, in the charge of the court, by Ewing, J.</p> <p>At the trial, C.' H. Trent, plaintiff below, being upon the stand as a witness on his own behalf, and having testified in chief, under objection, that he had a contract for the delivery of cigars, and was prevented from making the delivery by the levy, was asked by plaintiff’s counsel the following question:</p> <p>“ Q. Had you any other contract with any other person ?</p> <p>“ A. I had in this way. I went around all the wholesale houses about once a week, and if I failed in getting around to the different parties that I sold to, they would get their goods elsewhere. I sold ' that way to Fullerton & Son, on Liberty street, and others.</p> <p>“ Q. You failed to go around because your factory was closed ? ” Objected to by defendant’s counsel as incompetent and irrelevant.</p> <p>By the Court: — “ The plaintiffs have a right to show the situation of the business and the character of it, and how it was interrupted, and if any loss was incurred thereby.”</p> <p>Objection overruled, and exception. [13]</p> <p>The plaintiff was also asked this question :</p> <p>“ Q. Did you not know at that time that Trent Brothers had obligations out; that they owed the plaintiff, Mr. Krause? ”</p> <p>Objected to by plaintiff as not cross-examination.</p> <p>By the Court: — “ There is no question about the right of defendants to put this and kindred questions to the witness, but it would be more orderly, however, as it is objected to on part of plaintiff, to put this witness on the stand and cross-examine him fully.”</p> <p>Objection sustained. Exception. [14]</p> <p>The plaintiff, being on the stand as a witness on his own behalf, was asked by his counsel:</p> <p>“ Q. He [Krause] wanted you to sell a watch for him? ” Objected to as incompetent and not rebuttal. Objection overruled. Exception. [15]</p> <p>The charge of the court was as follows :</p> <p>“ Charles H. Trent has brought suit against Joseph H. Gray, who was formerly sheriff of this county, to recover damages for the alleged wrongful taking of his goods — a tobacco factory in Allegheny city, [it seems that on Feb. 12,1887, an execution was placed in the hands of the sheriff against D. B. Trent and Trent Bros., not naming anybody as constituting Trent Bros., and, on that execution, the sheriff was not only entitled to, but was bound to, levy on the property of the defendants wherever he could find it in the county, and, if hq did nothing more than that, no recovery could be had in this action; but an execution against Dr B. Trent did not justify him in levying upon the property of any other person than the defendants named in the execution;] [6] Charles H. Trent says that the goods levied on, viz., cigars, tobacco, machinery, etc., were his, and did not belong to the defendants in the execution, and it seems that the sheriff was formally notified on the same day — Feb. 12 — that Charles H. Trent claimed these goods as his. There was nothing further done than making the levy until the 18th, when a watchman was put in possession and the goods were finally sold on the 1st of March and possession retained until the 3d of March.</p> <p>[“ Now, if those goods were the goods of Charles H. Trent, bought by him and in his possession, the sheriff is liable, and if they were the goods of the defendant in the execution and if the alleged sale in this case was made for the purpose of hindering, delaying and defrauding creditors, the sheriff is not liable.] [7] The testimony that seems to be uncontradicted is that D. B. Trent and W. O. Trent had been in partnership, carrying on a tobacco factory at this place, from some time in 1885 probably. The plaintiff in the execution which was put in the hands of the sheriff, Mr. Krause, had had dealings with them; loaned them money; exchanged checks with them, and, by his own testimony, knew who the firm were. They were carrying on business as Trent Bros., and had their factory license in that name. Some time in 1886, W. O. Trent left the firm and the business; the business was carried on there still, and the sign unchanged, under the name of Trent Bros., up at least until Feb. x 1, 1887. [It is alleged, and we do not think there is any positive testimony of witnesses to contradict it, that these goods were in fact the goods of D. B. Trent. The plaintiff claims that, at that date, they were transferred to him; that he bought and gave a proper consideration for them, and that this was a sufficient change of possession.] [8]</p> <p>[“ I may say, in explanation of what I said in answer to points of defendant, and what I say now, if Charles H. Trent had been in actual partnership with his brother, D. B. Trent, and this alleged transfer made and the same goods levied on for a firm debt, I think the plaintiff could not recover — thaft they were not entitled to do that; but I see no evidence here that would justify the jury in finding, contrary to the sworn absolute testimony of the parties, that Charles H. Trent was anything else than an employee, as they state.] [9] A party may be liable to another as a partner when he is not in fact a partner, that is, he may be held. If he has held himself out to the public as a partner, got credit upon that holding out, he is liable. But when a party has sufficient to put him on his guard ; when he actually knows who the partners are, or has grounds upon which he should have known, by some ordinary acts, he cannotbe held. [It is very evident from Mr. Krause’s own testimony that he knew who were the partners that composed Trent Bros, originally and up to the time that W. O. Trent went out he had pretty close dealings with them. He knew that one had gone out and it was his duty to inquire if another went in, and there is no evidence that would hold Charles H. Trent as a partner in this case on the ground that he held himself out to Mr. Krause as a partner; for that part of it, that is out of the case for your consideration.] [io]</p> <p>“ Now, as between vendor and vendee, it is sufficient, to make a good and valid sale, if there has been a fair consideration passed; or, even if it is not a full consideration, if there has been a genuine agreement made and possession delivered, that is a consummation of the sale, as between the vendor and the vendee. But there are cases where it is not good as against creditors of • the vendor. The policy of the law is to prevent fraudulent transfers to hinder and delay creditors, and if a sale be made by a man in debt, for the purpose of hindering, delaying and defrauding his creditors, that is, to get his property out of the way, so that it cannot be reached by his creditors, and the vendee also knows of this fraudulent purpose, it is void as to the creditors who were intended to be defrauded. Bear in mind that it is not sufficient that the vendor has creditors and that he intends, by the sale of the property, to get it out of the way so that the creditors cannot get at it, but the vendee must also know of the fraudulent intention, to make the sale void.</p> <p>“ In this case, it is claimed by the defendant that the alleged sale was fraudulent; that it was made with the intention of hindering and delaying Mr. Krause in collecting his debt and defrauding him out of his claim; and counsel for defendant has argued to you, and has gone over the testimony, to show that the surrounding circumstances of the case were sufficient to justify you in finding that it was in fact fraudulent; and plaintiff’s counsel claim that the circumstances and the positive testimony are such that you must necessarily find the other way. Now, it is a question for the jury; the court has no opinion to express in regard to it. You have the testimony of the parties and you have the surrounding circumstances and you will take all into consideration and determine from the facts as to whether or not this was a sale made in good faith in order to pay Charles H. Trent what was owing to him and allow him to take the business and carry it on as the two brothers allege, or, was it done for the purpose of getting it in the name of Charles H. Trent to free D. B. Trent from paying Mr. Krause.</p> <p>“ If you find that it was a fraudulent sale for that purpose, you will find for the defendant, but if you find that the sale was made in good faith, as the plaintiff claims, and as D. B. Trent claims, then you have another question to settle. There are some disputed facts. To free property from an execution against a former owner, it is not sufficient that there be a bona-fide sale made and a sufficient price paid, but there may be, and are, cases that frequently come into court where the court declares that, although the intention of the parties was all right, fair and honest, nevertheless there is what is in law called a ‘ fraud inlaw.’ And to illustrate: If one of you, having a horse, should sell it to Mr. Brown and he paid you the full price for it and leaves it with you, without any change of possession (I speak of a horse because it is capable of being actually delivered at time of sale), he leaves it with you and you go on using it just as if it were your own and next week some one, having a judgment against you, issues an execution and the sheriff levies on that horse, he will take it, notwithstanding Mr. Brown bought it in good faith and paid the money for it and you have done nothing to cheat anybody. That is what is called a fraud in law; the property left in the possession of the former owner without anything to indicate that there has been a transfer of it. That is the general rule in regard to transfers of personal property; but the rule is subject to this modification: the property, to free it from an execution of the creditor of the vendor, must have simply that change of possession which, from its nature, it is capable of and the use to which it is to be put and the surrounding circumstances. In this case the property was practically the tobacco factory with the stock on hands. Now, to show possession, the plaintiff testifies, and D. B. Trent testifies to substantially the same thing, that the sale was consummated between them on the morning of the 1 ith of February. C. H. Trent could not carry on the business until he had a United States license to carry on a factory. He went to the United States internal revenue office, announced his purchase, offered his bond and, in the afternoon or evening, a deputy collector went over there, took an inventory of the goods for Mr. D. B. Trent, who had been the former licensee, and issued a license; the bond was approved and license issued to C. H. Trent as the owner of the cigar factory. That part of it does not seem to be in dispute. The good faith of it is questioned by defendant’s counsel, but the actual transaction, as bearing on the question of delivery, does not seem to be in dispute. Then C. H. Trent alleges that he took and had possession of it and managed it and that D. B. Trent had nothing to do with it. It is in testimony, also — alleged by the Trents — that, in the purchase and payment made on Friday morning the agreement was that part of the purchase money was to-pay the hands up to Saturday night. It is claimed on the part of the defendant that D. B. Trent was actually there managing the place after the alleged sale. Now, the possession must not be a joint one after the sale; it must be in the vendee alone, although the vendor may be employed. There are numerous cases in which the property has remained in possession of the party selling and that was not held to invalidate the sale even as to creditors, but it is always a fact for the jury to take into consideration. [If the vendor remains, doing about the same things he did before, it must be explained to your satisfaction that he is in the employ of the vendee and not acting for himself.] [11]</p> <p>“ Another element in determining as to whether or not there has been a proper change of possession, or whether it was a fraudulent retaining of possession by the vendee, is the length of time that has elapsed between the sale and the time of the sheriff’s levy, because, taking the horse to illustrate again, if, after Mr. Brown had paid for it and before he got it away from the premises, the sheriff had come and undertaken to levy on it, he could not take the horse; it is the leaving it intentionally in the possession of the other party that is the badge of fraud and that makes the fraud in law. The time in this case was very short.</p> <p>“ There is another piece of evidence of exclusive possession that Mr. Krause furnished; he says he went over the evening of the nth to see something about a check and asked for D. B. Trent; C. H. Trent was there, and Mr. Krause says that C. H. Trent was very curt with him; that he told him to get out, that he owned the place now, and that D. B. Trent had nothing to do with it, which was a pretty decided expression as to possession.</p> <p>“ Then, as to the question of the length of time — that visit was on the evening of the nth; the next day, in the forenoon, he takes the judgment note which he held that was signed D. B. Trent and then signed Trent Bros, (which I think was of itself some evidence, and considerable evidence, to show that D. B. Trent was the man), and had it entered, and, at, I believe, 10.40 in the morning, an execution was put in the hands of the sheriff, so that there was not the time to make a complete visible change that might have been expected in a week even, and the fact of the name, ‘ Trent Bros.,’ remaining there on the sign, is not so significant as it would have been if this levy had been made a month after the sale ‘was made.</p> <p>“ Counsel for plaintiff and defendant have presented points in relation to the possession that is sufficient to take the property out of the reach of the creditor; and the want of change of possession that would leave it in the control of the creditor, is stated in both points, and I affirmed both. They have a different theory, though, and it is for you to find the facts. There are some disputed facts, and the court cannot determine, therefore, as a matter of law, whether there was the actual change of possession necessary or not. It is for the jury; and, on the question as to whether or not this was a bona fide sale by D. B. Trent to C. H. Trent, or whether it was done and the transfer made with. the intent to hinder, delay and defraud Mr. Krause, the court has no opinion to express; that is essentially a question of fact for the jury.”</p> <p>The court further charged upon the question of the measure of damages, limiting them to compensatory damages.</p> <p>The plaintiff requested the court to charge :</p> <p>“ 2. If the jury believe that C. H. Trent purchased, for a bonafide consideration, the personal property in the factory; that C. H. Trent went into possession immediately and D. B. Trent ceased to be there; that a new license was taken in the name of C. H. Trent, and an inventory made by the U. S. collector, and the said property was subsequently sold by the sheriff, then the plaintiff is entitled to a verdict for such damages as he has suffered by reason of such sale. Ans. The second point is affirmed, if the sale was made in good faith, i. e., that it was not intended to defraud creditors.” [1]</p> <p>The defendant presented, inter alia, the following points:</p> <p>“ 3. If D. B. Trent and Charles H. Trent, by their declarations and acts, induced Morris Krause to believe they were carrying on business as Trent Brothers, and thereby procured credit and loans of money from him, they were both liable to him for the debts thus created, and the goods levied upon, whether the property of one or both of them, would be legally liable to execution and sale for such debts. .Ans. The third point is refused. There is no sufficient evidence on which the jury would be entitled to find that C. H. Trent was at any time a partner of D. B. Trent. The positive testimony is to the contrary. The evidence of the defendant [plaintiff in the execution] shows that he knew that the firm of Trent Brothers had been composed of D. B. Trent and W. O. Trent, and that as such he did business with them, loaned money to them, and had as interest a share, one-third of the profits of the business. He knew that W. O. Trent had gone out of the business, and it is not pretended that he ever asked for information, or that any person ever told him that C. H. Trent, the present plaintiff, was a partner of the business carried on under the name of Trent Brothers.” [2]</p> <p>“ 4. If Charles H.Trent andD. B. Trent were carrying on business under the name of Trent Brothers, and borrowed money from M. Krause, upon the credit of the firm, the transfer of D. B. Trent to Charles H. Trent of his interest in the property would not prevent Krause from seizing and selling the property upon execution for the debt so contracted. Ans. The fourth point is refused, and is answered in the answer to the third point.” [3]</p> <p>“ 5. An actual and continued change of possession is essential to the validity of a sale of personal property. If D. B. Trent remained in possession of the property jointly with Charles H. Trent, and if there was no open, visible change of possession, but everything remained in and about the store or factory of Trent Brothers as it was previous to the alleged sale to Charles H. Trent, the transaction was fraudulent and void, and the verdict should be for the defendant. Ans. The fifth point is affirmed, with the explanation that the change of possession required is such possession as the subject matter of the sale is reasonably capable of.” [4]</p> <p>“ 8. Under all the evidence in this case, the verdict should be in favor of defendant. Ans. The eighth point is refused.” [5]</p> <p>The following is the evidence chiefly relied upon by the defendant to prove a holding out as a partner by the plaintiff:</p> <p>Krause, the execution plaintiff, called by defendant, testified, inter alia:</p> <p>“A. At that time, Jan.' 1, 1886; he [D. B. Trent] came and said and Charlie [C. H. Trent] — both of them said — represented that this Walter Trent didn’t do any good, was drinking so much that they didn’t want to have anything more to do with him, and then they said — Charlie and Dan — that it isa good thing that this Walter is out because he didn’t do any good, and the business is in such good standing now as it never was before and, I believe, they have got now a little money in bank with a pretty good stock on hand and are able to pay me what they owe me; told me that at the time they made this settlement. ... I gave them a check a few days before the execution was issued, to get money on — By the Court: — Who did you give it to ? A. I gave the check always to the man, to' this D. B. Trent, at the place of business, because he was the transacter of business; never anybody else to do anything but him. Q. Did you see Charles in regard to it ? A. Yes, sir. Q. When did you see him? A. I went there when that check was to be paid in and the date of it they couldn’t make out, so Charles went and altered the date and put ‘io’ there. Q. In your presence? A. Yes, sir; in my presence. Q. Did they get money on this check ? A. This is the check they gave me. Q. Drawn by Trent Bros. ? A. Yes, sir. Q. And Charles put this date to it? A. Yes, sir. Q. Where did he do that? A. In the factory; they had to pay their hands, and he said not to put it in before the i ith — that they had to pay their hands. Q. What reason did he give for that? A. Because he said they need the money, for to pay their hands on Saturday. Q. Did you keep it until the nth? A. Yes, sir. Q. And then you deposited it? A. Yes, sir. Q. Was it paid? A. No, sir; there was no funds to meet it. Q. How long had you known Charles H. Trent before you had this interview with him, when he dated this check as you say? A. About a year. Q. What was he doing ? A. He was in the factory; did like the rest; worked there; transacted business. Q. Did you see him frequently ? did you know him well? A. Yes, sir; seen him often. Q. What did he ask you for — what did he say ? A. To exchange checks with him. By the Court: — Did Charles ask you to do that himself? A. They were together. Q. Where were they? A. In the factory. By Mr. Brown. — Q. What was the sign that was out? A. Trent & Bro. Q. Had he ever any other sign up than that? A. No, sir; not as I know of. Q. When was the last time you were there, what money did you give them, and where did you see them in order to give them the money ? A. It was at the factory when I gave the money or the check; they were both there — both present. Q. Were both of them present at the conversation when Charles H. Trent asked you to postpone the payment of this ? A. No, sir; Charlie only was there. Q. And you did postpone it till the nth? A. Yes, sir. Q. How often did you give them money— you say you gave them money when they were both present ? A. I have got four or five thousand dollars of ‘ exchanged checks ’ with them. Q. Can you remember how often ? A. Every week, from one week to another, for the last two years.”</p> <p>The witness further testified: “Q. What time on the nth did you go to the store and see Charles? A. It was in the morning; about nine or ten. I told him that the check is in now and I can’t take it out. Q. You had deposited it that morning, had you? A. Yes, sir. Q. When you went there on the nth did you see any change in the business or about the place ? A. Not a bit; no, sir ; all was going on the same. I asked on the I ith where Dan is, and he said he just went out with a couple of customers to buy some tobacco. Q. That was what time on Monday ? A. In the forenoon, Feb. nth, 188/. Q. That was just the day before you entered up your judgment ? A. Yes, sir. Q. When did you find out about this alleged sale ; when did you first find out that it was alleged that Dan had sold out to Charlie? A. On the nth in the evening, when I went there to ask him whether that check is paid or not ; I found that they didn’t honor that check and then I asked wheré Dan is. Q. And when you went back what time was that ? A. I think between four and five in the evening. Q. Who did you see ? A. I saw Charlie. Q. What did you say to him ? A. I asked where is Dan or what is the matter about this check, and said you needn’t come here any more ; the property belongs to me now. A. Did he explain to you how it belonged to him ? A. No, sir, he didn’t; he was very cross and I wanted to know how it was — wanted him to explain and he says ‘ it’s no use to have any details about it.’ Q. He gave you no explanation ? A. No explanation whatever. Q. And then you proceeded on your judgment the next day— the I2th? A. Yes, sir.</p> <p>The witness did not testify distinctly that C. H. Trent had held himself out as a partner, or that he thought he was a partner. The Trent Bros., Charles and Daniel, testified that no partnership had ever existed between them.</p> <p>The evidence was further to the effect that D. B. Trent lived upstairs with his family in the house in which the business was carried on, and Charles H. Trent boarded with him! This was continued after the alleged sale, as before.</p> <p>Verdict and judgment for plaintiff, for $754.65.</p> <p>The assignments of error specified, 1-5, the answers to plaintiff’s and defendant’s points, quoting the points and answers; 6-11, the portions of the charge included within brackets, quoting them; 12, that the charge as a whole was misleading and inaccurate; and, 13-15, the rulings on the evidence, quoting the bills of exceptions as above.</p> <p>In the circumstances of this case, the answers to the respective points of the parties, and the oral charge of the court, were generally confusing and misleading, and highly calculated to produce the result that was reached.</p> <p>Without the qualification attached to the absolute affirmance of plaintiff’s 2nd point, the proposition was erroneous; and, with the qualification expressed in very vague language, it is highly probable that the jury were not aided, but misled, as to the elements necessary to make the sale by D. B. Trent to C. H. Trent a valid transaction. The point ignored entirely the question of partnership, as well as the testimony tending to show conspiracy and fraud in the transaction between the brothers Trent, of which there was abundant evidence to sustain a verdict in favor of the defendant.</p> <p>The 3d point did not assume that the Trent Bros, were in fact partners, but the proposition was based upon testimony which would have justified the jury in finding that both of the Trent Bros, did affirmatively and positively persuade and induce Krause to believe that they were carrying on business jointly.</p> <p>The answer to the 5th point effectually deprived the defendant of the instruction prayed for, and it left the jury without any rule whatever upon the subject.</p> <p>Nothing whatever was done to effect any actual change of possession, or, indeed, to exhibit to the employees in the establishment, or to the world at large, a colorable change.</p> <p>A judgment confessed by one partner, in the partnership name, is good against the personal property of the firm, although the individual partners are not named individually. The instruction of the court, in the 6th specification of error, is contrary to that rule of law.</p> <p>Whilst the court has the undoubted right to compel the orderly conduct of a case, we are unable to conceive any legal reason for refusing to permit the cross-examination of the plaintiff, and alleged vendee, who had gone upon the stand voluntarily on his own behalf to prove that he was a bona fide purchaser for value of the goods seized by the sheriff.</p> <p>Jas. S. Young, with him Y. U. Trent, for defendant in error.— Relying upon the testimony and the authority of McKibbin v. Martin, 64 Pa. 352; McCluer v. Forney, 107 Pa. 414; Plugus v. Robinson, 24 Pa. 9; Crawfords. Davis, 99 Pa. 576; Evans v. Scott, 89 Pa. 136, we think the court made no error in its charge, and this disposes of the assignments of error 1, 4, 5, 6, 7, 8, 11 and 12.</p> <p>As to the 13th assignments of error: The plaintiff undertook to show his loss by showing the condition of his business at the time of the levy, the interruption thereof and his consequent loss by such interruption. Under the authority Douty v. Bird, 60 Pa. 52, the court was clearly right in admitting the testimony.</p> <p>Helfrich v. Stem, 17 Pa. 152, is authority for the ruling of the court complained of in the 14th assignment.</p> <p>As to the 15 th assignment, Krause having testified to dealings with plaintiff, it was certainly proper for plaintiff, in rebuttal, to show what dealings he had with Krause.</p>

Certiorari, No. 295, Jan. T. 1889, to Q. S. Berks Co., to review an order dismissing exceptions to the report of re-reviewers on a road in Bern and Penn Townships, at Jan. Sessions, 1886, No. 1. Green and Clark, JJ., absent. The facts appear in the opinion of the court below, by Hagenman, P. J: “ Some sixteen exceptions were filed to the report by three land owners through whose land the proposed road is laid out. They embrace only four grounds which require notice. “ 1.

Error, No. 14, July T. 1887, to C. P. Northumberland Co., to review a judgment on a verdict for defendant in an action of trespass on the case, by James Ebright against The Mineral Railroad and… Held: by the supreme court of New Jersey, that in such case it could not be considered that the company was irresponsible as a matter of law. But, on examination of the

<p>In an action against a street passenger railway company, to recover damages for personal injuries, caused by the alleged negligence of the defendant, it appeared that, about three weeks before the accident, the company piled about a dozen rails in the gutter of a street at a point where there was no regular crossing, and the plaintiff tripped over one of the top rails which had become displaced,' and projected into the street. The court was requested to charge : “If the jury believe that there was light enough for the plaintiff to see the rails at the time the accident occurred, and the snow did not obscure the same, and the plaintiff could have avoided the pile by going around it or crossing the street at another point, the plaintiff was guilty of contributory negligence in not seeing said pile and avoiding the same, and therefore cannot recover.” The court refused to so charge, but left the question of negligence and contributory negligence to the jury. Held, after verdict and judgment for plaintiff, that the judgment should be affirmed.</p> <p>It seems that it is negligence for a street car company to take up old rails from their track, pile them in the gutter on the street, and leave them there for several weeks.</p> <p>In the above case, the court was requested to charge as follows, on the question of proximate cause : “ If the company’s employees and servants placed the rails in question in proper order side by side where the same were deposited in the gutter, and the accident occurred by reason of the subsequent displacement of one of the rails, without the agency of said company, and would not have occurred without such displacement, the company would notin that case be liable for the injury.” The Court: “Refused. It is for you to determine whether or not such displacement was a probable result of the original placing of the rails upon the street.” Held, no cause for reversal.</p>

Error, No. 139 Oct. T., 1888, to C. P. No. 2, of Allegheny Co., to review a judgment on a verdict for plaintiff in an action of assumpsit by Margaret L. Dallmeyer against Plenty Dallmeyer, who survived Plenty Dallmeyer, Jr., late partners as H. Dallmeyer & Son, at January T. 1888, No. 77.

Appeal, No. 140, Oct. T. 1888, from a decree of the C. P. No. 2, Allegheny Co., on a bill in equity by John Ulrich Pfiffner against Alexander Pfiffner et ah, heirs of Amanda Pfiffner, deceased, to enforce a resulting trust, at Oct. T. 1885, No. 509. The averments of the bill are stated in the opinion of the court below.

Error, No. 171, Oct. T. 1888, to C. P. Butler Co., to review a judgment of compulsory non-suit, in an action of debt, by James Kifer against D. L. Smyers, S. A. Crittenton, R. B. Hawkins and V. Whitner, at March T. 1887, No. 23.

Appeal, No. 42, Oct. T., 1888, from C. P. Armstrong Co., refusing a preliminary injunction, on a bill in equity by Jennings, Beale & Co., Limited, against Jos. G. Beale, at March T., 1888, No. 69. Trunkey and Clark, JJ., absent. The facts appear by the opinion of the court, by Neale, P. J.: “This bill was filed Dec. 22, 1887. It is purely a bill for an injunction, and sets out that Benj. F. Jennings, John Davis, Robert Flenniken and Jos.

Error, No. 27, Oct T., 1888, to C. P. Allegheny Co., to review an order making absolute a rule for judgment for want of a sufficient affidavit of defence in an action of assumpsit by W. J. Sheriff, trading as J. B. Sheriff, Son & Co. against Charles E. Laferty et al., partners, doing business as a general partnership, under the firm name of the Globe Chemical Co., Limited. Clark, J., absent.

Error, Nos. 72, 73 and 74, Oct. T., 1888, to C. P. Mercer Co., to review judgments on verdicts for plaintiff in actions of ejectment by Mary Elizabeth Hoyt against Priscilla Taylor, P. P. Gelvin, and Andrew Davis, at June T., 1887, Nos. 82, 83 and 84. The pleas in these cases were not guilty. At the trial it was admitted that the common source of title was Dr. David Edgar, who died seized of the land in controversy.

Appeal, No. 126, Oct. T., 1888, from a decree of C. P. Washington Co., dismissing rules, by D. M. Donehoo, committee, to show cause why certain judgments against Wm. Wylie Stephenson, an habitual drunkard, should not be opened, at Jan. T., 1883, Nos. 265 and 266, and March T., 1883, No. 150. The pleadings were petition and answer. The facts appear from the opinion of the court, as follows, by McIlvaine, P. J.: “On June 15, 1883, the above-named defendant, Wm.

<p>Appeal, No. 10, Oct. T., 1888, from an order of the C. P. Butler Co., discharging a rule to open a judgment of W. D. Branden, to use of the Butler Savings Bank against Geo. Vogeley, at Sept. T., 1886, No. 77. Williams, J., absent.</p> <p>The averments of the petition for the rule and the answer are stated in the opinion of the court below. On the hearing of the rule, the following resolution of the bank, passed April 5, 1875, was given in evidence:</p> <p>“ Resolved that E. W. Vogeley be, and is hereby, appointed --of this Bank, to serve until the annual election, upon this express condition that he prove satisfactory to. the Board, they reserving the right to terminate his duties at the end of any month; and provided further, that he give bond with approved surety in the sum of ten thousand dollars for the faithful discharge of his duties.”</p> <p>It appeared by the evidence that the embezzlements occurred in the years 1883 and 1884.</p> <p>The further facts appear by the opinion of the court, as follows, by Hazen, P. J.:</p> <p>“ The judgment entered in this case was upon a bond, dated Feb. 17, 1885, at one year, to order of W. D. Brandon, for $10,000, with warrant of attorney to confess judgment, etc. This bond was accompanied with a mortgage on defendant’s real estate, situate in Butler, Pa., to secure payment of the debt therein recited. A writ of fieri facias was issued thereon, on June 29, 1886, for the debt, interest, commissions and co*sts. This writ was stayed on July 5, 1886, on the petition of the defendant presented in court, and this rule to show cause granted. The defendant prays the court to open this judgment and permit him to defend against the use-plaintiff’s demand, and assigns, inter alia, the following reasons, viz: That his son, Edward W. Vogeley, was, on May 6, 1875, employed as teller of the said Butler Savings Bank, and gave ‘ security in $10,000, conditioned for the faithful discharge of his duties as teller.’ And also that he, with said Edward W., executed and delivered to said Butler Savings Bank a bond in $10,000, dated May 6, 1875, conditioned as follows, viz: ‘ The condition of this obligation is such that if the above named Edward W. Vogeley, who has been duly chosen --of the Butler Savings Bank, located in Butler, Pennsylvania, shall faithfully execute and perform all his duties as--■ of said Bank, then this obligation, to be null and void, or else to be and remain in full force and virtue.” It was signed and sealed by Edward W. Vogeley and George Vogeley.</p> <p>. “ That said Edward W. remained continuously in the employ of said Bank up to February, 1885. That the employment of Edward W. was changed from that of teller to that of book-keeper or general bdt>k- keeper of said Butler Savings Bank. That the duties of said Edward W. ‘ were entirely different ’ and ' his responsibilities largely increased, and the opportunities and temptations to make false entries, embezzle the funds of said bank, and engage in outside speculations with the bank’s funds very materially enhanced, beyond, above and exceeding all possibilities in the discharge of his duties as teller.’ That it is alleged that during his said employment as book-keeper, or general book-keeper, Edward W. Vogeley made divers false entries in the books of said bank, embezzled the funds thereof and engaged in outside speculations with the said funds and became a defaulter to said bank in a large amount. That on Feb. 17, 1885, W. D. Brandon, Esq., attorney, and J. L. Purvis, one of the directors of said bank, came to the place of business of, and informed, defendant that said Edward W. was a defaulter to said bank in a large amount, and insisted upon defendant giving another bond as surety for said Edward W. That they promised defendant that if he would give a new bond and mortgage, in place of the old or original bond, dated May 6, 1875, it should not be entered and everything would be kept secret, and no exposure made of the defalcation by Edward W., and no criminal proceedings instituted against him for said defalcation. Also that they alleged, claimed and insisted that the defendant was liable on the bond of May 6, 1875, in $10,000. That they, by these representations, induced the defendant to believe he was liable on said bond. That this interview was the first information defendant had of this matter and it completely unfitted him for transacting business intelligently. ‘ That defendant then requested him to consider this proposition and consult an attorney as to what course to pursue, but that they, Brandon and Purvis, refused to give any time, but urged and insisted upon defendant at once signing the bond and mortgage, and stated that Mr. A. M. Cornelius, a notary public, was there and knew nothing of the matter. That the defendant, relying upon these representations, signed and acknowledged the bond and mortgage. Further, if Edward W. Vogeley is a defaulter, he became such as book-keeper or general book-keeper, a position for the faithful discharge of the duties of which defendant never was security. That Edward W. Vogeley never was a defaulter as teller in said bank. That, on Feb. 17, 1885, the time of executing said bond and mortgage, Edward W. was not in the employ of said bank.</p> <p>“ In answer to the rule, in this case, the use-plaintiff traverses every material allegation raised in defendant’s petition. This presents the issue, and what then are the facts ? The rule of law throws the burthen of proof upon the petitioner — defendant in the judgment. Then, has defendant made out, by the preponderance of evidence, such a case as would justify the court in entering a decree that this bond and mortgage are void by reason of fraud, want of lawful consideration or mistake ? If not so clearly made out, then defendant’s prayer must be refused and proceedings dismissed and this judgment suffered to stand, though it work a very great hardship®to defendant. After careful examination of the voluminous testimony offered for and against this rule, I find the following facts, viz:</p> <p>“ 1st. That, on May 6, 1875, the Butler Savings Bank, organized under the laws of said state, was doing a general banking business in Butler, and had no officer known as teller, whose duties were specifically designated as such, but that it had employees under different names whose duties varied from time to time.</p> <p>“ 2nd. That said Edward W. Vogeley was employed by said bank on ‘ May 6, 1875,’ as a bank clerk, to do such work in said bank as might fall to his lot from time to time, and that his said employment was sometimes designated or known as that of ‘ teller,’ and at other times as ‘ book-keeper,’ and that the general character of his services changed but little, if any, while so employed, and that he remained continuously in the employ of said bank as a ‘clerk,’ ‘ teller,’ or ‘ book-keeper,’ as his employment might happen to be called, up until February, 1885.</p> <p>“ 3d. That, while so employed, he made numerous false entries in the books of said bank and appropriated to his own use, without the knowledge of the officers of said bank, large sums of money belonging to said bank, to-wit: to the amount of $42,000, and upwards, with intent to cheat and defraud said bank of the same.</p> <p>“4th. That the bond of Edward W. Vogeley and George Vogeley, dated May 6, 1875, given to said bank in $10,000, as security for his faithful discharge of the duties of his position in said bank, remained in the custody of said bank, valid and subsisting security, according to its conditions and intent, when executed and delivered. [3]</p> <p>“ 5th. That, on Feb. 17, 1883, said George Vogeley executed and delivered to W. D. Brandon, Esq., and J. L. Purvis, acting for said bank, the bond and mortgage in suit, together with the declaration of trust accompanying same, and, at his request, received the bond of May 6, 1873.</p> <p>“ 6th. That said bond and mortgage were executed and delivered to said W. D. Brandon, Esq., and J. L. Purvis, with said declaration of trust, in settlement of his, George Vogeley’s liability to said bank on said bond of May 6, 1875, and breach of its conditions by said Edward W. Vogeley. [4]</p> <p>“ 7th. That defendant’s allegation that said bond and mortgage and declaration of trust, of Feb. 17, 1885, was executed and delivered by him on the faith, strength and credit of a certain promise, claimed by him to have been made to him at that time by said W. D. Brandon, Esq., and J. L. Purvis, that it should not be entered, and that everything would be kept secret, and no exposure made and no criminal proceedings would be instituted against said Edward W. Vogeley for said defalcation, is not sustained by the proofs adduced. This very material allegation of defendant is not supported in any wajf save by his own testimony, and, in .an immaterial matter, by Geo. W. Pillow, Esq. But, on the contrary, this allegation is contradicted by the positive testimony of W. D. Brandon, Esq., J. L. Purvis, A. M. Cornelius and Geo. W. Pillow, Esq., in part, and the papers in this case, the bond, mortgage and declaration of trust.</p> <p>“ 8th. That defendant’s allegation that he was not allowed time to consider the proposition, and consult an attorney, of W. D. Brandon and J. L. Purvis, to execute the papers at once, and did so execute and deliver them, is not sustained by the proofs, but, on the contrary, is contradicted by the positive testimony of W. D. Brandon, Esq., J. L. Purvis, and, in part, by A. M. Cornelius, Esq., and Geo. W. Pillow, Esq.</p> <p>“ 9th. That there was no promise made to the defendant to the effect that Edward W. Vogeley would not be prosecuted, to induce him, defendant, to execute said bond and mortgage, and that there was no fraud or false representations made to secure the same, but that the transaction was open, fair and j ust.</p> <p>“ 1 oth. That it was quite as much the interest of the defendant, being surety for Edward W., to watch him as it was his employers, and if his said employer was over-reached by confiding in his honesty, it is no good ground of complaint now, or reason for releasing his security. Bank v. Martin, 1 Ches. Co. 374.</p> <p>“ From this state of facts, I am constrained to hold that there is not enough in the testimony of defendant to justify the opening of this judgment and submitting the case to a jury, but, on the contrary, I am fully satisfied that the weight of evidence is clearly against granting the prayer of petitioner defendant. The proofs adduced by defendant certainly would not, in the light of the whole case, justify a jury in rendering a verdict for defendant, therefore the prayer of defendant should be refused, and rule discharged.</p> <p>“And now, Sept. 20, 1887, rule discharged at costs of defendant.”</p> <p>The assignments of error specified the action of the court, 1, in making the order refusing to open the judgment; 2, in not making absolute the rule to open the judgment and let the defendant into a defence; 3, the fourth finding of fact by the court, quoting it; and, 4, the sixth finding of fact by the court, quoting it.</p> <p>When the nature of the employment of the principal is so altered by the act, either of his employer or of the Legislature, that the risk of his surety is materially altered, the surety has the right to say: “ I did not bargain for this risk; I am discharged.” Brandt on Suretyship, page 609; Brez v. Warner, 9 W. N. C. 45 ; North Western National Bank of Minneapolis v. Keen, 8 W. N. C. 283.</p> <p>Where a bond is given by an officer of an association conditioned for the faithful performance of his duties, the condition is to be confined to the period of appointment or election for which the bond was given. Mut. B. & L. Asso. v. McMullen, 1 Penny. 431; Kingston Mut. Ins. Co. v. Clark, 33 Barb. 196; Manufacturers and Mechanics’ Savings and Loan Co. v. Odd Fellows’ Hall Association of Spring Garden, 48 Pa. 446; North Western National Bank of Minneapolis v. Keen, supra; Add. on Contracts, 126; Mayor, etc. of Cambridge v. Dennis, 27 L. J. Q. B. 474; Lord Arlington v. Merricke, 2 Saunders, 411; Liverpool Waterworks v. Atkinson,6 East, 507; Barker v. Parker, 1 Term, 295 ; Peppin v. Cooper, 2 B. & Aid. 431; Com. v. Baynton, 4 Dali. 282; Com. v. West, 1 Rawle, 31; Com. v. Reitzell, 9 W. & S. 109 ; Brandt, Suretyship, pp. 196, 489, 607,609.</p> <p>The law requires that, in dealing with bail, the principals must disclose all material facts within their knowledge to the surety, before they can take a new binding security from him, or in any way enlarge his original liability. The resolution of April 5, 1875, employing Edward Vogeley and stating that he was to serve to the next annual election, and limiting the bail’s liability to that time, never was communicated to George Vogeley, the bail.</p> <p>The inference of fraud is easily and almost inevitably drawn where there is a suppression or concealment of material circumstances and one of the contracting parties is knowingly suffered to deal under a delusion. 2 Kent, pp. 668, 669; Lancaster Co. Bank v. Albright, 21 Pa. 228; Templeton v. Shakely, 107 Pa. 377; Brant, Suretyship, 492; Doughty v. Savage, 28 Ct. 146.</p> <p>The sam*e rule applies to the case where a party pays money, in ignorance of circumstances with which the receiver is acquainted, and does not disclose, and which, if disclosed, would have prevented the payment. 2 Kent, pp. 669, 670; Heane v. Rogers, 9 B. & C. 577; Dewey v. Field, 4 Mete. 381.</p> <p>Concealment or fraud by an agent is as fatal as if practiced by the principal. Chitty, Contract, 679; 1 Arch. N. P., 119.</p> <p>A mortgage whose consideration in whole or in part is the stifling of a prosecution for conspiracy to defraud and for embezzlement of a bank officer, is void. Pearce v. Wilson, m Pa. 14; Riddle v. Hall, 99 Pa. 116.</p> <p>George Vogeley, the bail, was in no way or manner liable to the bank on the old bond at the time he gave the new obligations, Feb. 17, 1885. There was, therefore, no consideration for the new obligations and they ought not to be enforced. Smith v. Phila. Bank, 14 Pa. 525; Lancaster Co. Bank v. Albright, 21 Pa. 228.</p> <p>The power of the court of common pleas in relation to the opening of judgments is most ample, and policy requires that it should be liberally used. Kalbach v. Fisher, 1 Rawle, 323.</p> <p>The burden of proof is on the petitioner to open a judgment, and he is to be held strictly to the rule requiring two witnesses, or one witness and corroborating circumstances, where his allegations are denied under oath, and especially when the only witness is the petitioner himself. Knarr v. Elgren, ig W. N. C. 531; English’s Ap., 21 W. N. C. 298 ; Phillips v. Meily, 106 Pa. 536.</p> <p>Want of consideration cannot be set up. This is a bond, a sealed instrument importing consideration, which requires no consideration to give it validity, even in a court of equity; and one, from which, from the performance of its condition for the payment of money, a court of equity will not relieve an obligor on the ground merely of defect of consideration.</p> <p>Moreover, there is here an extension of time by the obligee; an acceptance of the several bond of the surety in lieu of the joint and several bond of principal and surety, and a surrender of such joint bond to the surety at his request. By the surrender of the original bond, the position in which affairs stood when this bond was taken has been so materially altered that the statu quo cannot be restored, and, in fact, there has been no offer to return the joint bond, or attempt made at such restoration.</p> <p>The decisions referred to by appellant have no bearing on this case. This was the settlement of a liability or supposed liability of a surety already incurred, not the entering into a suretyship where material facts, known to the creditor, which, if revealed, would have likely deterred the surety from assuming a responsibility for future transactions between the principal and the creditor, or from taking on himself the burden of an existing liability of the principal for which he was not bound, were concealed from him. There were no confidential relations between the bank and the surety, as to such settlement, that required the bank to make examinations or consult lawyers to learn whether the surety had been released or discharged from the condition of his obligation by the acts of its officers.</p> <p>The case of Smith v. Phila. Bank, quoted by appellant, held correctly that endorsers of a promissory note, relieved from liability as such by the acts of the holder, did not renew their liability by the subsequent endorsement of a draft, not negotiable, though drawn to pay said note. The latter endorsement was a nullity, so far as liability was concerned, and from the former they had been released. Both were lifeless, neither could revive the other.</p> <p>In Lancaster Co. Bank v. Albright, the attempt to avoid the effect of fraudulent conduct on the part of the creditor, which released the endorser, by showing that the endorsement was merely the renewal of a prior endorsement, was met by proof that the endorser had been discharged therefrom by want of notice of nonpayment.</p> <p>In neither of these cases was the consideration a question. In one there was no promise; in the other a fraud had been committed.</p> <p>If a court of equity can in any case relieve against a mistake of law, where the defendant has been guilty of no fraud or unfair practice, which is at least very doubtful, it must be in a case in which the defendant has in reality lost nothing whatever by the mistake, and where the parties can be restored substantially to the same situation in which they were at the time the mistake happened. Crosier v. Acer, 7 Paige, 137.</p>

Appeal, No. 131, Oct. T., 1888, from C. P. No. 1, Allegheny Co., to review a decree in favor of the complainant on a bill in equity by James Aull against Melchor Varner, at June T., 1886, No. 108.

Appeal, No. 84, Oct T., 1888, from C. P..No. 2, Allegheny Co., to review a decree dismissing exceptions to a' master’s report on a bill in equity by the Pittsburgh Brass Co., Limited, against Henry Adler, at Oct. T., 1887, No. 219. Paxson, J., absent. The bill averred, in substance, as follows : 1. The Pittsburgh Brass Co., plaintiff, is a limited co-partnership association. 2.

Appeal, No. 20, Oct. T., 1888, of Lewis Gansz, Jr., administrator, from Ó. C. Butler Co., to review a decree dismissing exceptions to the report of an auditor on exceptions to the account of Lewis Gansz, Jr., administrator of Lewis Gansz, Sr., deceased, at March T., 1887, No. 31. Williams, J., absent. The exceptions to the account set forth the claim of the ex-ceptant as stated in the auditor’s report.

Appeal, No. 107, Oct T., 1888, from a decree of O. C. Washington Co., dismissing a petition by Josephine Barkley, by next friend, for a review of partition proceedings, and stay of lev. fa. to compel payment of valuation money, in the estate of George Bentley, deceased, at Feb. T., 1887, No. 18.

Error, No. 44, July T., 1888, to C. P. Bradford Co., to review a judgment on a verdict for plaintiff in an action on the case for conspiracy, by J. Leman Elsbree against Abram Morley and Job Morley, at Feb. T., 1887, No. 202. McCollum and Mitchell, JJ., absent.

Error, No. 421, Jan. T., 1888, to C. P. Northumberland Co., to review a judgment, in an action of debt, on an appeal from a justice of the peace, at Sept. T., 1886, No. 199.

Error, No. 88, Oct. T., 1887, to C. P. Venango Co., to review a judgment on a verdict in favor of the defendant in an action of covenant, by N. H. Payne, against E. W. Echols, at April T., 1883, No. 61. Green, J., absent. The declaration was not given in the paper books.

Error, No. 176, Oct. T., 1888, to C. P. Armstrong Co., to review a judgment on a verdict for the plaintiff in an action of ejectment, by John A. Colwell, against the Allegheny Valley R. R. Co., at Sept. T.,1883, No. 232. The writ claimed to recover about one-fourth of an acre, being land covered by the track of the defendant. Plea, not guilty.

Error, No. 4, July T., 1888, to C. P. Northumberland Co., to review a judgment on a verdict in favor of -the plaintiffs, in an action of ejectment, by F. L. Haupt and W. D. Haupt, executors of Sebastian Haupt, deceased, against Henry Haupt, at No. 47, May T., 1884. Trunkey, J., absent. The writ, issued April 25, 1884, claimed a small strip of land covered by the wall and cornice of the defendant’s house. The defendant pleaded not guilty.

Error, to C. P. Armstrong Co., No. 63, Oct. T., 1888, to review a judgment for defendant on a case-stated •wherein Armstrong Co. was plaintiff and the Kittanning Borough Overseers of the Poor were defendants, at Dec. T., 1887, No. 26. Green and Hand, JJ., absent.

Error, No. 113, Jan. T., 1888, to C. P. Lancaster Co., to review a judgment on a verdict for plaintiffs on an issue devisavit vel non, by Millard Leaman and others, against Jame.s Hoar and others, to try the validity of a paper purporting to be the will of -John B. Hoar, deceased, at March T., 1886, No. 53. Trunkey, J., absent. The pleadings are not given in the paper-books. These facts appeared, at the trial, before Livingston, .P. J.: The decedent died in November, 188$.

Error, No. 264, Jan. T., 1888, to C. P. Lancaster Co., to review a judgment on a verdict for plaintiff in an action of assumpsit for services, by John Haines against Barbara Kurtz and Henry Kurtz, her husband, at Jan. T., 1882, No. 6. Trunkey, J., absent.

Certiorari, No. 42, July T., 1888, to review a judgment of C. P. Lancaster Co., dissolving an attachment under the Act of 1869, which was issued by James Black et al, trustees and members of Monterey Lodge, No. 242, I. O. O. F., against Adam Oblender and P. F. Blessing, defendants, and Frank Dommet, garnishee, at Apr. T., 1888, No. 44. Trunkey and Sterrett, JJ., absent.

Error, No. 114, Oct T., 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict for plaintiff in an action on the case by John H. Brown et al., partners as Brown & Co., against The Pittsburgh Bridge Co., at Dec. T., 1885, No. 396. The declaration claimed damages resulting from the alleged careless and negligent manner in which the defendant upset or welded certain iron rods furnished to them by the plaintiff. The plea was not given.

Error, No. 100, July T., 1887, to C. P. Northumberland Co., to review a judgment on a verdict for the plaintiff in an action of trespass on the case by Jos. Pardoe against Wm. Bellas, at Sept. T., 1883, No. 256. Trunkey, J., absent. The declaration appears in the charge of the court below. The plea was not guilty.

Appeal, No. 28, July T., 1887, from a decree of O. C. Northumberland Co., dismissing exceptions to an auditor’s report on exceptions to… Held: on the original investment, the omission to make the change in líame will not make him liable. “ It is also claimed by the exceptants that the investment in the Mt. Carrtiel bank stock was unauthorized and illegal, as the Mt. Carmel bank was not an existing bank at the time, and because the par of the stock was double the amount of…

Error, No. 190, to July T., 1888, to C. P. Lehigh Co., to review a judgment for defendant in an action of assumpsit, by Rosina A. Schall et ah, daughters and legatees of Benj. Fogel, deceased, to the use of John PI. Fogel and Willoughby Fogel, deceased, now to the use of the surviving executors of Willoughby Fogel, deceased, against William B. Fogel, at Jan. T., 1888, No. 17. Williams and McCollum, JJ., absent.

Error, No. 132, July T., 1887, to C. P. Schuylkill Co., to review a judgment on a verdict in favor of the defendants, in an action of ejectment by James R. Cleaver and William Cleaver, against Joseph W. Garner and Michael Garner, at May T., 1881, No. 335. The writ contained a description of the premises. The plea was not guilty. At the trial, Albion P. Spinney was called by defendant and sworn.

<p>Error, No. 78, July T., 1888, to C. P. No. 1, Phila. Co., to review a judgment on a verdict for plaintiff in an action of ejectment, by Henry G. Harris, to the use of A. G. Harris, against the city of Phila., at June T., 1885, No. 781. McCollum and Mitchell, JJ., absent.</p> <p>On July 3, 1885, the writ was issued for a lot on the east side of the Schuylkill river at the foot of Ellsworth St., extending about 200 feet, to the Port Warden’s line, from the west side of Schuylkill Avenue, a street laid out on the city plan, but not opened. The action was brought to compel the defendant to remove the mouth of a sewer from said lot. The plea is not given.</p> <p>On the trial, the evidence tended to establish the following facts:</p> <p>The plaintiff acquired title March 1$, 1881. After the action was begun, the lot was sold to Amanda G. Harris, and the action marked to her use. The lot was a mud-flat, and the sewer was constructed about i860. About 1868, after a heavy wash, a head or end was built to the sewer. The deposits from the sewer gradually filled up the marsh, year after year. An ordinance was passed April 2, 1881, providing that if the owner of this lot should dedicate 25 feet of land in the direction of Ellsworth street, as already opened, the lines of that street would be changed in said direction; and the plaintiff tendered a deed making such dedication.</p> <p>During the pendence of this action, the Schuylkill River East Side R. R. Co. located its tracks across the lot, and extended the sewer along Ellsworth street to the Port Warden’s line. That part of the sewer on the plaintiff’s lot was then removed. The action went on for mesne profits.</p> <p>The railroad bulkheaded the lot in a substantial manner before laying their tracks. The wharf was rented in 1887 for $500, and in 1888 for $600. It was admitted by one of defendant’s witnesses that the unimproved lot was worth about $2,500.</p> <p>The following questions were asked by plaintiff’s counsel :</p> <p>“What would have been the rental value of that lot had it been bulkheaded? ” [1] Objected to, excluded and exception.-</p> <p>“ Would the rental value be more or less if the railroad were not there ? The railroad having been built after plaintiff’s claim for mesne profits ceased.” [2] Objected to, excluded and exception.</p> <p>“ What rent will a wharf 100 feet on the river, by 200 feet, within a square of Christian street, bring ? ” [3] Objected to, excluded and exception.</p> <p>“ What was the rent of Plarrison’s wharf at the foot of Christian street?” [4] Objected to, excluded and exception.</p> <p>“ Did Mr. Harris confer with you [a district surveyor] regarding the removal of the sewer ? ” [5] Objected to, excluded and exception.</p> <p>“ What would be the cost of putting a bulkhead at the front of this property? ” [6] Objected to, excluded and exception.</p> <p>“What is bulkheading worth in seven feet of water, per foot?” [7] Objected to, excluded and exception.</p> <p>Plaintiff offered to prove, by the secretary of the Board of Port Wardens, that an application was made in 1880, to the Board of Port Wardens, for a license to build a wharf on this property. [8] Objected to, excluded and exception.</p> <p>Plaintiff asked Boswell, the former owner : “ Did you ever make an application to the councils of Phila. for the removal of the sewer.” [9] Objected to, excluded and exception.</p> <p>The court below charged the jury as follows :</p> <p>“ This case has been deliberately tried, and I intend to leave it largely to you. The plaintiff claims that he is entitled to the profit lost by the use of the ground for the purpose of this sewer. The city claims that by reason of this sewer being there, land was added to the plaintiff’s lot, and the landowner benefited thereby. The plaintiff is entitled to recover whatever profit he would have received, if the sewer had not been there. If there would be no profit, there can be no recovery.</p> <p>“ A great deal has been said in this case, but you are not to forget the evidence. You are to remember the testimony and decide by that, as you recollect it.”</p> <p>The plaintiff presented, inter alia, the following points, which were refused:</p> <p>“ The Federal street sewer, being a public sewer or drain for the accommodation of a large section of the city, and the plaintiff’s land not offering the natural water-course for that section, the defendant could not carry the sewage through plaintiff’s land without paying for the land taken.” [11]</p> <p>“2. The defendant could not throw the sewage and drainage of a large section of the city on to plaintiff’s land thereby creating a nuisance. It was defendant’s duty to carry the said sewage over and past plaintiff’s lot, to some natural receptacle or channel for its discharge.” [12]</p> <p>“5. The defendant could not procure twenty-five feet of plaintiff’s land, for the purpose of the continuance of Ellsworth street, and continue to occupy plaintiff’s land, with its sewer and sewer discharge.” [13]</p> <p>The assignments of error specified the action of the court, 1-9, in disallowing the above offers, quoting the questions but not the bills of exceptions; 10, in excluding all evidence of the fair annual value of the property, the sewer being at the time of the trial removed, and the permanent injury to the lot being therefore greatly lessened; 11-13, in refusing plaintiff’s points, as above, quoting them; 14, in submitting to the jury that there was any evidence from which the jury could find any benefit done to plaintiff’s land by the encroaching sewer; 15, in leaving the case to the jury as to the amount of damages without more specific instructions as to the damages and their measure.</p> <p>There were two points to be determined, whether defendant had any right to occupy plaintiff’s land, and, if not, what were the mesne profits which plaintiff should receive.</p> <p>The defendant undertook to show such possession as would raise the presumption of a grant. But no prescription runs in favor of a party endowed with the right of eminent domain; there is no choice but to acquiese in the case of property taken for public use. Jessup v. Loucks, 55 Pa. 350.</p> <p>After the ordinance of 1881, laying out the lines of Ellsworth street, the city had no right to allow its sewer to remain outside of those lines. The verdict in favor of the plaintiff is conclusive of the right to mesne profits. Stephens v. Strosnider, 92 Pa. 236.</p> <p>The measure of damages is the amount of injury to the fair annual value of the premises. Huston v. Wickersham, 2 W. & S. 308; Morrison v. Robinson, 31 Pa. 459; Seely w-Alden, 61 Pa. 304; Carmen v. Beam, 88 Pa. 323; Grove v. Barclay, 106 Pa. 163.</p> <p>The action for mesne profits is an equitable one; the fair annual value of the lot would be the rental when improved, less interest on the cost of the improvement. Ege v. Kille, 84 Pa. 333.</p> <p>Fair market value, outside of unusual depression, is to be considered. One cannot trespass on another’s rights and allege, in defence, that there was no market value to the land taken. Trout v. Kennedy, 47 Pa. 387.</p> <p>It was error to leave the amount of damages to the jury as a matter of guess; they ought to have been instructed that they should not find for less than a full compensation for the loss. The fact that the tortious act of the defendant was in any way of advantage to the plaintiff is immaterial, and such benefit cannot be set off Sanderson v. Coal Co., 102 Pa. 370.</p> <p>The court refused to allow the plaintiff to show that the lot had any rental value, and allowed a verdict of one cent damages to stand against taxes paid to the defendant, interest or rental, and the permanent injury by reason of the flow of filth and sewage.</p> <p>The question of title having been settled by the verdict, a writ of inquiry as to damages ought now to be allowed.</p> <p>Evidence of the rental value of other wharves was inadmissible. R. R. Co. v. Vance, 115 Pa. 325.</p> <p>The offer to prove a conference with the district surveyor in regard to the removal of the sewer, was inadmissible, for he was in no sense the city’s agent. Alcorn v. Phila., 44 Pa. 348.</p> <p>The other offers of evidence were irrelevant. The theory was, the plaintiff could guess at the cost of improvements, guess at the amount of taxes and repairs, and then charge the city with the rental, without any proof that he ever made any effort to have the sewer removed, or that he ever intended to construct a wharf, or that the wharf could not have been built with the sewer, there.</p> <p>In regard to the plaintiff’s first point, there was no evidence that the city took any of plaintiff’s land, or that the land was not the natural water-course. If there was any taking of land, it was at least twenty-one years before plaintiff bought.</p> <p>As to the second point, there was no evidence of a nuisance. To have told the jury that it was the city’s duty to carry the sewage “over and past” the lot, would have ended plaintiff’s case, for he was contending that the city had no right to carry sewage over the lot.</p> <p>The fifth point was without logic; the making of the deed of dedication could not change the rights of the parties in regard to the sewer.</p> <p>The court said nothing about the existence of any evidence of benefit to the land by the sewer, although in point of fact the sewer had all along been making fast land for the owners.</p> <p>The whole proceeding was a mere speculation on the part of the plaintiff; the marsh had no value till the railroad company occupied it and made a wharf of it.</p>

Appeal, No. 128, July T., 1888, of John E. Conway and wife, in right of the wife, from C. P. Montgomery Co., to review an order discharging a rule to open a judgment of Rebecca J. Anderson against-Louisa F. Jones, now Conway, at Dec. T., 1886, No. 233. Williams and McCollum, JJ., absent.

<p>In an action of trespass for sale on execution proceedings, by a claimant of the goods, against the sheriff and the plaintiff in the execution, the admission in evidence of the bond of indemnity, given by the plaintiff in the execution to the sheriff, if error, is immaterial error, where the jury were instructed that they could not give punitive damages but must confine themselves to the actual value of the goods at the time of sale, and the verdict made it apparent that they did not disregard the instructions.</p> <p>It is no cause for reversal, in such case, that the court, in effect, affirmed the following point for plaintiff: “The defendants in the execution, after having levied upon the goods, might have then applied for a rule to interplead, under which the title of the claimant might have been tested without and before any sale ; in that case, if the verdict had established the claim, the proceedings being regular, the defendants would not have been trespassers.</p>

Error, No. 273, Jan. T., 1889, to C. P. Lebanon Co., to review a judgment on a verdict for plaintiff in an action of assumpsit, by John C. Seltzer, against Ellen M. Brundage, executrix of John Young, deceased, at April T., 1886, No. 115. Sterrett and Mitchell, JJ., absent. This was an action of assumpsit, brought March 12, 1886. The declaration, which was filed with a copy of the note upon which suit was brought, was not printed in the paper-books.

<p>Appeal, No. 153, July T., 1888, from C. P. Berks Co., to. review a decree dismissing a bill in equity, by Daniel Shaaber, Henry C. England, Albert Thalheimer, Aaron Wilhelm, Philip M. Ermentrout, Matthan Harbster, David B. Brunner and William H. Wilhelm, against The Angelica Water Co., Geo. R. Frill, Darius P. Greth, Henry Ahrens, Chas. H. Schaeffer and Edwin F. Smith, officers and directors of the Angelica Water Co., and the Angelica Ice Co., No. 372 Equity Docket, 1885. Green and-Clark, JJ., absent. „</p> <p>The bill, filed in October, 1885, alleged that the plaintiffs were owners of stock in the Angelica Water Co., a corporation, under the Act of April 29, 1874, and supplements, of which the defendants were directors; that the defendants were chief owners of the Angelica Ice Co., a corporation under the Act of 1874, and it supplements ; that, in order to control the Angelica Water Co. in the interest of the Angelica Ice Co., the said defendants purchased or caused to be purchased in their interest a sufficient number of shares in the Angelica Water Co., and caused themselves to be elected officers and directors of the Angelica Water Co., with the design and for the purpose of managing the Angelica Water Co. for the benefit of the Angelica Ice Co., and to the prejudice of the plaintiffs; and, with the money of the Angelica Water Co., erected unnecessary dams on the property of the Angelica Water Co., intended for the ice business, and then executed a lease of the ice dams from the Angelica Water Co. to the Angelica Ice Co. for an injuriously long term, and for less than one-half the true rental value, whereby the Angelica Ice Co. was making large profits. The bill prayed that these acts of the defendants be declared illegal and void as in fraud of the plaintiffs; and that the profits be paid to the Angelica Water Co.; with a prayer for general relief.</p> <p>The answer admitted the interest and position of the parties as alleged, and averred that the building of the dam was authorized by the board of directors of the Angelica Water Co., at a time when some of the plaintiffs were members of the board, without objection; that, at a stockholders’ meeting at which some of the plaintiffs were present, the directors were unanimously authorized to make a lease to the Angelica Ice Co. on such terms as they might agree upon, and that the lease as made was fair.</p> <p>The master, Henry C. G. Reber, Esq., reported, inter alia, as follows:</p> <p>“The Angelica Water Co., in accordance with a resolution passed at an annual meeting of its stockholders on May 13, 1884, and in accordance with a resolution passed at a meeting of the board of directors held May 17, 1884, executed a lease (reciting the resolutions) to the Angelica Ice Co. ‘ for the term of 49 years from Oct. 1,1884, at an annual rental of $1,000 per year, ice or no ice, of all that certain dam now situated on property owned by the party of the first part (Angelica Water Co.), in Cumru township, Berks county, Pennsylvania; together with the lands covered by the water of said dam, and also the new dam about being erected on said premises by the party of the first part, together with all the land that shall be covered with said new dam now in process of erection, for the purpose of harvesting and housing ice, together with such adjacent land as may be necessary for the use of the said Ice Company in harvesting and housing ice; together with ingress to and egress from the same over the lands of the said Water Company, said adjacent land being such lands as may be laid off and selected by the committee on purchase and sale of water-rights, and attached hereto by plot or draft.’ ”</p> <p>At the election of directors held May 13, 1884, all of the plaintiffs (who were in the board of directors), except D. B. Brunner and A. Wilhelm, were dropped from the board and others elected in their place.</p> <p>Further findings of facts by the master appear by the exceptions filed, and by the following conclusions arrived at by him:</p> <p>“ 1st. In the inception of the Ice Co., the plaintiffs all had an opportunity to join in the enterprise, and some of them actually subscribed towards stock which they afterwards refused to take. Subsequently they were offered 100 shares, which they again refused to take.</p> <p>“ In the preliminary organization of the Ice Co., the building of the dam by the Water Co. and the erection of the houses by the Ice Co., there was no concealment from or unfairness towards the plaintiffs.</p> <p>“ 2d. In building the dam in question, the defendants only continued and carried out the work planned by the plaintiffs, and which was carried on by the plaintiffs continuously until the expiration of their term of office.</p> <p>“ 3d. The construction of said dam was necessary for the corporate purposes of the Angelica Water Co., and its use for ice purposes is an incident and not the object of its erection; in its erection, no work was extravagantly or unnecessarily performed, and, as it progressed, it received the approval and endorsement of the plaintiffs.</p> <p>“ 4th. The erection of the dam as constructed, and the execution of the lease of the same to the Ice Co., were not ultra vires or injurious to the interest of the Angelica Water Co.”</p> <p>Under this head, the master cited and reviewed: Stewart’s Ap., 56 Pa. 413 ; Spering’s Ap., 71 Pa. 11; McCurdy v. Myers, 44 Pa. 533; Perrine v. Canal Co., 9 How. 192 ; Armstrong v. Pa. R. R., 9 Va. 1; Simpson v. Hotel Co., 2 De G., F. & J. 141; 8 H. of L. C. 712 ; Whitney Arms Co. v. Barlow, 63 N. Y. 69.</p> <p>“ 5th. The lease in question is a valid lease, containing all the essentials of a complete agreement under which the relation of landlord and tenant has been fully established; the rent reserved therein is fair and reasonable ; the term is not of unusual or unfair length, but proper under the circumstances; the lease was properly executed by the officers of both corporations and was duly ratified, and is binding on both parties. The fact that the leasing was not thrown open to general competition does not effect its validity, because the officers were directed by the stockholders of the Angelica Water Co. to make it to the Angelica Ice Co.”</p> <p>To establish the validity of the lease, the master cited: Id-dings v. Nagle, 2 W. & S. 22; Ferguson v. Staver, 33 Pa. 411.</p> <p>“ 6th. In the- making of the lease, there was no abuse, by the officers or directors of either corporation, of the powers vested in them by the stockholders; the plaintiffs were at no time deceived by the acts and declarations of the defendants, and there was no fraud perpetrated by the defendants.”</p> <p>To establish these points the master cited and reviewed: Pierce, Railroads, p. 36; Morawetz, Private Corporations, 245, 334; Angelí & Ames, Corporations, §233, note a, 312; Watts’s Ap., 78 Pa. 370; ■Rolling Stock Co. v. R. R., 34 Ohio, 46; Adams Mining Co. v. Senter, 26 Mich. 73; Story, Agency, § 310; Wharton, Agency, § 244.</p> <p>“ 7th. If there was any just cause for complaint on the part of the plaintiffs, their laches in waiting until the defendants had expended large sums of money, until new and innocent parties had invested in the business, and until the success of a speculative business venture had been demonstrated, estops them from seeking redress in the court of equity :” Twin-Lick Oil Co. v. Marbury, 91 U. S. 589; Watts’ Ap., 78 Pa. 370; Rolling Mill v. R. R., 120 U. S. 236; Tayíor, Private Corporations, 631; Upton, Assignee v. Tribilcock, 91 U. S. 45 ; Badger v. Badger, 2 Wall. 87; Harwoods. R. R., 17 Wall. 78; Marsh v. Whitman, 21 Wall. 178; Vigers v. Pike, 8 Cl. & Fin. 650; Ashurst’s Ap., 60 Pa. 290; Hotel Co. v. Wade, 97 U. S. 23; Beatty v. Northwestern Transp. Co., 10 Am. & Eng. Corp. Cas. 263; Smith v. McNeal, 68 Pa. 164; Keísey v. Bank, 69 Pa. 429; Bredin v. Dubarry, 64 Pa. 30; Gordon v, Preston, 1 Watts, 387.</p> <p>“ Upon the whole case, after a full consideration of the testimony, and the arguments and authorities on which the plaintiffs’ case was supported, the master finds nothing which entitles the plaintiffs to relief, and therefore reports that the bill be dismissed with costs.”</p> <p>The plaintiffs thereupon filed exceptions to the master’s report, alleging that the master erred, in not finding that:</p> <p>“ 1. On May 19, 1884, the time of the execution of the lease, E. F. Smith held ten shares, and D. P. Greth five shares, of the stock of the Angelica Ice Co.</p> <p>“ 2. The Angelica Water Works were constructed for the purpose of supplying water to an intended town opposite the city of Reading, and that, at the time the testimony was taken, only one house was reached by the pipes of the Angelica Water Co., and that house was a farmhouse.</p> <p>" 3. George R. Frill, Darius P. Greth, Henry Ahrens, Charles H. Schaeffer, and Edwin F. Smith, expended a large sum of money, namely, upwards of five thousand dollars, the property of the Angelica Water Co., in building ice dams and other conveniences and appliances necessary in the ice business and for purposes not within the scope of the powers of the Angelica Water Co., nor intended for the benefit of the Angelica Water Co., but intended for the business of harvesting, storing, and selling ice, with the design of using the same in the business and to the profit of the Angelica Ice Co., and to the prejudice of the plaintiffs.</p> <p>“ 4. With expenses necessitated by its construction, the dam cost at the time of its completion $5,828.40, the money being partly taken from the treasury of the Angelica Water Co., but chiefly borrowed on its credit by bank discounts, as follows:</p> <p>Timber.................................................................$2956 72</p> <p>Lumber, spikes, &c.............................. 1338 73</p> <p>Road forming breast of dam................................ 524 45</p> <p>Sluices, part........... 708 41</p> <p>Discount paid on loans............................................. 300 09</p> <p>Total..........................................................$5828 40</p> <p>“ 5. The plaintiffs assented to the construction of the dam, relying on the representations of the defendants that the work planned was simply an enlargement of the existing dam, at a cost of from $1800 to $2500, for the purpose of the water works.</p> <p>“ 6. On May 13, 1884, at the time of the annual meeting of the Angelica Water Co., the plaintiffs were ignorant of the extent of the defendants’ plans, and of the cost and extent of the dam under construction by them.</p> <p>“ 7. The Angelica Ice Co. had already taken possession of the premises in the early part of May, before the meeting of May 13, 1884, and before the plaintiffs knew of any plan of leasing the dam to them, and had begun digging trenches and putting foundation walls for extensive ice houses afterward erected by them on the property of the Angelica Water Co. upon land adjoining the dam.</p> <p>“ 8. At the time the resolution was passed at the meeting of the stockholders of the Angelica Water Co., on May 13, 1884, whereby the making of the lease was referred to the board of directors of the Angelica Water Co., the plaintiffs were unsuspicious of any contemplated change in the board of directors, whose election was now to follow, and the Frill ticket for directors contained names of men who had not before been in any manner identified with the Angelica Water Co., and were not known to the plaintiffs to be stockholders until they appeared at this meeting, but to whom stock had been transferred as follows:</p> <p>March 25, 1884, George R. Frill to Isaac Plank...............2 shares.</p> <p>“ “ “ “ “ “ “ Thomas Lightfoot......2 “</p> <p>“ “ " “ “ “ “ D. P. Greth..............2 “</p> <p>“ “ “ “ “ “ “ Henry Saylor............2 “</p> <p>“9. On May 13, 1884, when the making of the lease was referred to the board of directors, the plaintiffs believed that the old board of directors would be re-elected, and that they themselves would act for the Angelica Water Co. in making the lease.</p> <p>“ 10. George R. Frill, D. P. Greth, Henry Ahrens, Charles H. Schaeffer, and Edwin F. Smith caused themselves to be elected officers and directors of the Angelica Water Co. with the design and for the purpose of managing the Angelica Water Co. for the benefit of the Angelica Ice Co., and to the prejudice of the plaintiffs.</p> <p>II. No land was laid off in the manner described in the lease, and no draft was ever at any time attached to the lease, and the lease was never recorded.</p> <p>“ 12. After the lease, Mr. England could get no knowledge of the proposed lease; a long while after he asked persons who would have known whether it was executed and they said it was not, as testified by him.</p> <p>“ 13. After the lease, Mr. Thalheimer asked the treasurer for a report at one time with reference to the dam, and got the answer that they could not make a report to everybody, as testified by him.</p> <p>“ 14. After the lease, Mr. Aaron Wilhelm told Mr. Frill that it was not an honest thing, and a wholesale steal, and there would be a great deal of dissatisfaction about it, as testified by him.</p> <p>“15. After the lease, Mr. William Wilhelm did not think it was right and objected to it to Mr. Frill, and did not think he acted square, as testified by him.</p> <p>■ “ 16. Messrs. Frill, Ahrens, Schaeffer, Greth and Smith, intending to act for the benefit of the Angelica Ice Company and in fraud of the plaintiffs, executed the lease complained of, and the said lease and the length of the term are injurious to the interests of the Angelica Water Co., and the rent reserved is less than one-half of the true annual value of the premises, and so known to the said defendants at the time of the execution of the lease.</p> <p>“ 17. By reason of the facilities afforded them by the lease complained of, and the low rental named for the premises, the Angelica Ice Co. have made and are still making large profits from the same.</p> <p>“ 18. The net profits of the property in the hands of the Angelica Ice Co. have been about $18,000 or $19,000 annually as the income of their investment, from which there was nothing to pay but the rent to the Angelica Water Co.</p> <p>“ 19. The rent received does not amount to five per cent, on the capital stock of the Angelica Water Co., and nearly the entire . rental is consumed in paying for repairs to the dam and interest on the debt created in building it.</p> <p>“ 20. The acts of Messrs. Frill, Greth, Ahrens, Schaeffer and Smith in the premises have been done and committed in willful breach of the trusts which the said defendants have undertaken to the plaintiffs as officers and directors of the Angelica Water Co., with an intent to injure and defraud the plaintiffs, and depreciate the value of their stock in the Angelica Water Co., and with the sole purpose of benefiting the Angelica Ice Co., so deriving therefrom large gains for themselves, to the prejudice of the plaintiffs.</p> <p>“21. The time intervening between the making of the lease and the filing of the bill was filled with protests on the part of the plaintiffs and with negotiations between the plaintiffs and the defendants for settlement, which resulted in many of the plaintiffs’ party selling their stock to the defendants; and the dissatisfaction of the plaintiffs during this time was well known to the defendants.</p> <p>“ 22. Mr. Shaaber and Mr. Thalheimer refused to go into the ice business under any conditions, and never assented in any way to the construction of a dam for ice purposes.</p> <p>“ 23. In finding that the defendants, after their election in May, 1884, only continued and carried out the work planned by the plaintiffs several months before. There is no evidence that any of the plaintiffs ever planned the construction of a dam intended primarily for ice purposes. Mr. Shaaber and Mr. Thalheimer refused to go into the ice business under any circumstances. Their assent to the enlargement of the dam was wholly for water purposes.</p> <p>“ 24. In finding that the resolution of the Angelica Water Co. authorizing the board of directors to lease to the Angelica Ice Co. was a reiteration of the original intention of the projectors of the Angelica Ice Co., and before the Angelica Ice Co. was organized it was understood that a lease was to be made by the Angelica Water Co. to the Angelica Ice Co. If such was the understanding of some of the plaintiffs, it would not effect Messrs. Shaaber and Thalheimer, who never were aware of any such an understanding on the part of any persons until the meeting of May 13, 1884, after which they at once dissented and protested.</p> <p>“ 25. In finding that the construction of the dam and the lease were not ultra vires. The dam was certainly constructed primarily for ice purposes.</p> <p>“ 26. In finding that the description of the premises leased was set forth with reasonable certainty.</p> <p>“ 27. In finding that if any pecuniary interest could affect the integrity of the actions of the defendants, it would favor the Water Co. The defendants and their families had 264 of the 302 shares of the Angelica Ice Co. at the time of the execution of the lease, and Messrs. Saylor, Lightfoot, and Plank, their employees, had 30 of the remaining 38 shares. Messrs. Frill and Ahrens had the advantage of selling property worth $ 12,000 to the Ice Co. for $20,000 besides.</p> <p>“ 28. In finding that the plaintiffs’ declination to accept stock in the Angelica Ice Co. was unwise when coupled with the condition that Frill and Ahren’s property must be accepted at $20,000, and that the plaintiffs alone are to blame for the present situation. Messrs. Shaaber and Thalheimer were unwilling to go into the ice business under any conditions, and were not obliged to do so to save their property.</p> <p>“ 29. In finding that the plaintiffs are not entitled to relief because of unreasonable delay in exercising their right of dissent, such defense not being made in the pleadings nor established by the evidence.</p> <p>“ 30. In finding that the plaintiffs were guilty of laches in not filing their bill earlier, when the master finds that the dam was not ready for harvesting ice until December, 1884, and not fully completed until August, 1885, during which time the plaintiffs were only awakening to the defendants’ plans, and could get no information of the terms of the lease and cost of the dam, until the annual meeting in May, 1885, and when the time intervening between the making of the lease and the filing of the bill was filled with protests on the part of the plaintiffs, and with negotiations for settlement with the defendants, resulting in many of the plaintiffs’ party selling their stock to the defendants.</p> <p>“31. In finding that the lease cannot be canceled because the defendants sold some of their stock of the Angelica Ice Co. to third parties during the time of the protests of the plaintiffs and their negotiations with the defendants.</p> <p>“ 32. In finding that the plaintiffs were not deceived by the acts and declarations of the defendants. They were first entrapped into consenting to the enlargement of the dam, being told by Mr. Frill that this was necessary for‘the purposes of the water-works and would only cost from $1,800 to $2,500, and were then entrapped into passing a resolution referring the leasing of the dam for ice purposes to the board of directors, believing that they would be continued as directors, while the defendants had a new ticket in their pockets ousting the plaintiffs, ready to spring on the meeting as soon as the resolution had'passed.</p> <p>“ 33. In finding that the lease was ratified by the proceedings of the annual meeting of 1885.</p> <p>“34. In finding that acquiescence of the plaintiffs in the proceedings relative to the lease and construction of the dam creates an estoppel.</p> <p>“ 35. In finding that there was no fraud perpetrated by the defendants in their capacity as officers and directors of the Angelica Water Co.</p> <p>“ 36. In admitting and considering the testimony given against the plaintiffs’ objection by E. F. Smith, H. P. Crowell, John W. Baker, John R. Gonser, and Henry Ahrens as to the rentals paid for other ice dams.</p> <p>“ 37. In admitting and considering the testimony given against the plaintiffs’ objection by Jefferson M. Keller, on cross-examination, concerning an attempt made by the ice dealers of Reading in 1882 or 1883 to consolidate their business, and the value then placed upon the respective properties.</p> <p>“ 38. In finding that the resolution of the stockholders of the An- . gelica Water Co. authorizing a lease by the directors to the Angelica Ice Co., entitled the Angelica Ice Co. to the lease at all events, when it clearly appears that the plaintiffs were entrapped into assenting to this resolution by being led to believe that they would be continued as directors through complimentary remarks by Mr. Frill and the concealment of the defendants’ plans, and because they were not aware of the cost and extent of the dam in course of construction.</p> <p>“ 39. In finding that the lease is not injurious to the interests of the Angelica Water Co., and that the rent received was a fair and reasonable rent, and that the term was a proper one.</p> <p>“ 40. In finding that the valuation of the rental value was honestly, openly, and fairly made.</p> <p>“ 41. In finding that the Angelica Ice Co. went into possession of the premises immediately after the making of the lease. They went into possession previously, in the early part of May, 1884, before they applied for a lease.</p> <p>“ 42. In finding that, in the preliminary organization of the Angelica Ice Company, the building of the dam by the Angelica Water Co., and the erection of the houses by the Angelica Ice Co., there was no concealment from or unfairness towards the plaintiffs.</p> <p>“ 43. In finding that the construction of the dam as it progressed received the approval of the plaintiffs, because, at the annual meeting held May 13, 1884, the actions of the board of directors during the year was approved. At that time, the construction of the dam had not progressed far enough for the plaintiffs to be aware of the defendants’ plans, and of the proposed extent and cost of the dam, which did not become apparent until a year afterwards.</p> <p>“ 44. In finding that, in building the dam in question, the defendants only continued and carried out the work planned by the plaintiffs, and which was carried on by the plaintiffs continuously until the expiration of their term of office.</p> <p>“45. In finding that the construction of the said dam was necessary for the corporate purposes of the Angelica Water Co., and that its use for ice purposes is an incident and not the object of its erection; that in its erection no work was extravagantly or unnecessarily performed, and that as it progressed it received the endorsement of the plaintiffs.</p> <p>“ 46. In finding that the erection of the dam as constructed, and the execution of the lease of the same to the Angelica Ice Co., were not ultra vires or injurious to the interests of the Angelica Water Co.</p> <p>“ 47. In finding that the lease in question is a valid lease, containing all the essentials of a complete agreement under which the relation of landlord and tenant has been fully established, the rent reserved therein is fair and reasonable, the term is not of unusual or unfair length, but proper under the circumstances; the lease was properly executed by the officers of both corporations and was duly ratified, and is binding on both parties, and that the fact that the leasing was not thrown open to general competition, does not affect its validity, because the officers were directed by the stockholders of the Angelica Water Co. to make it to the Angelica Ice Co.</p> <p>“ 48. In finding that, in the making of the lease, there was no abuse by the officers and directors of either corporation of the powers vested in them by the stockholders, the plaintiffs were at no time deceived by the acts and declarations of the defendants, and there was no fraud perpetrated by the defendants.</p> <p>“49. In finding that, if there was any just cause for complaint on the part of the plaintiffs, their laches in waiting until the defendants had expended large sums of money, until new and innocent parties had invested in the business, and until the success of a speculative business venture had been demonstrated, estops them from seeking redress in a court of equity.</p> <p>“ 50. In reporting that the bill be dismissed. 51. In reporting that the bill be dismissed with costs. 52. In not recommending a decree in favor of the plaintiffs, as prayed for in the bill.”</p> <p>The court dismissed the exceptions in the following opinion, by Albright, P. J.:</p> <p>“ The able and exhaustive argument of counsel for plaintiffs has failed to convince the court that any of the exceptions can be sustained. An examination of the whole case has resulted in the conviction that the plaintiffs are not entitled to a decree against defendants, and that the questions before the court were well considered and correctly decided by the learned master. Upon his report, the exceptions are dismissed.</p> <p>“ The pivotal question is whether the lease made by the Angelica Water Co. to the Angelica Ice Co. is void. For there is no prayer to reform the contract contained in the lease, nor is there any evidence to support a decree to reform. Whether or not the lease is valid, depends upon the election of the directors of the water company who made the lease — the election of May 13, 1884.</p> <p>“ A resolution of the directors authorized the letting upon the terms of the lease. That a lease should be made was voted at a meeting of the stockholders. Geo. R. Frill was a large stockholder (he held 167 of the 400 shares), and he was active in the making of the lease.</p> <p>“ Said election is attacked because of his (Frill’s) action regarding it. But what reason could be given for a conclusion that what he did concerning it was illegal or a fraud upon other stockholders under the rule of law invoked by the plaintiffs? ‘ While the right of a stockholder to contract with his corporation and become its creditor is conceded as a general proposition, the right of a person controlling a corporation to contract with it rests upon entirely different principles, if it exists at all. Where a person actually has actual control of a corporation, whether such control arises from the ownership of a majority of the shares or from his position or influence, and enters into a contract with such corporation, he is held to the most rigid good faith. The onus is upon him to show the fairness of the transaction, if it is called in question. It is a principle too well settled to be now successfully controverted, that the promoters, directors, or agents of a company shall not make a profit out of it by buying lands for it, or in dealing with it. This principle runs through all the fiduciary relations.’ Rice’s Appeal, 79 Pa. 168.</p> <p>“ Frill had the right common to all the stockholders to vote his stock, to induce other stockholders to act upon his views, if he could, and to procure the election of himself and others who agreed with him as directors. The complaints based upon his interest as a stockholder and his influence and position are groundless, because he had not a majority of the stock and he had no power in the councils of the Water Co. except what his stock gave him.</p> <p>“ It is also insisted that the lease is void under the statute of frauds, because of vagueness of the description of the lands referred to in it. Surely one interested as a lessor cannot be conceded a standing to declare void a lease because of uncertainty in the description of the land demised. In case of a dispute on that point between a lessor and lessee, equity might interfere to render certain the boundaries, according to the intent of the parties.</p> <p>“ It is urged that the length of the term and the amount of rent reserved show a fraudulent intent, or constitute a legal fraud. But the evidence does not establish facts warranting such a determination. The reasoning and conclusion of the learned master upon this point cannot be successfully gainsaid. Then, too, the conduct of Frill must be viewed in the light of the surroundings when the ice company was formed, and the lease made. The project of creating an ice company originated with the stockholders of the Water Co. The business of furnishing water was unproductive, and it was thought that the ice business would be profitable. The intention and expectation of the promoters was that the stock of the new company should be taken by the holders of that of the old. Before and after the making' of the lease, the stockholders of the Water Co. were not only afforded an opportunity, but were urged to take stock in the Ice Co. ,</p> <p>“ True, the stockholders of the Water Co. were not bound to invest in the Ice Co., and some of them declined to do so. But if the lease was not ultra vires, or void for any other reason, the fact that the lease may be to the detriment of those who refuse to join the new enterprise furnishes no reason for declaring void the contract. They took the risk so incident to investment in the stocks of a corporation, when the investor has not a controlling interest.</p> <p>“ A stockholder runs the risk of having the concern managed by the majority in a way that may be detrimental to him and unwise. Nor was the grant of the ice privilege ultra vires the corporation lessor. The company had a dam and a pool for the purpose of supplying water. To realize from the ice by letting the privilege is in principle the same as if the company sold its ice. It would hardly be contended that if a water company or a corporation for the manufacture of iron or of cotton goods sold the ice naturally formed on its pool, that it thereby forfeited its charter. In the nature of things, the right to take ice must be subordinated to the purposes for which the corporation lessor was formed, that is, supplying water.</p> <p>[“ Now, May 28, 1888, this cause came on to be heard, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the bill of the plaintiffs be dismissed and that the plaintiffs pay the costs.”] [53]</p> <p>The plaintiffs thereupon took this appeal.</p> <p>The assignmejits of error specified, 1-52, the action of the court in dismissing the exceptions to the master’s report, quoting them; and, 53, in decreeing as above, quoting the decree.</p> <p>When stockholders consent to the construction of certain works, relying on an estimate made by the president, and also authorize a lease of the works to the president, supposing that they will be continued in' office as a majority of the directors to build the works and make the lease, and the president then, to the surprise of the old directors, who are unprepared for a contest, immediately elects his own board, erects extensive works not contemplated by the stockholders, costing nearly three times as much as his estimate, and makes a lease on terms fixed by his own board againt the protests of the other stockholders, such assent will not be regarded as authorizing his acts.</p> <p>A fraud is seldom attempted without marks of fairness placed on its face. Decoys are the invariable evidence of a snare.. The confidence which partners and fellow-corporators owe each other cannot exist if a trap like this will be viewed by courts as assent on the part of one that the common property shall be diverted to the personal uses of the other.</p> <p>Even the majority of a water company have no power to build an ice plant, that being outside the purpose for which the company was incorporated: McCurdy v. Myers, 44 Pa. 535.</p> <p>A director stands in a fiduciary relation, and cannot buy of himself for his corporation, nor sell to himself: Pierce, Railroads, 36; Morawetz, Private Corporations, 245; Angelí and Ames, Corp., § 238, note 312; Butts v. Wood, 37 N. Y. 317; Ployle v. R. R., 54 N. Y. 314, 328; Blake v. R. R., 56 N. Y. 485,490; Barnes v. Brown, 80 N. Y. 527, 535; Duncomb v. R. R., 84 N. Y. 190, 198; Robinson v. Smith, 3 Paige, 222, 232; Koehler v. Co., 2Black,715; Blitz v. Plittison, 48 N. Y., 22 ; 1 Perry, Trusts, 207.</p> <p>Promoters, directors or agents of a company shall not make a profit out of it in buying lands for it or dealing with it: Rice’s Ap., 79 Pa. 168; McElhenney’s Ap., 61 Pa. 188; Short v. Stevenson, 63 Pa. 95 ; R. R. v. Bowser, 48 Pa. 37; Bailey v. Gas Co., 69 Pa. 340.</p> <p>Where a transaction is a fraud in law, it is not permissible to show that the transaction was an honest one: Michoud v. Girod, 4 How. 503, 507; Coburn v. Pickering, 3 N. H- 415 ; Story Eq. Jur., § 322; Wardell v. R. R., 103 U. S. 651; Jewett v. Miller, 10 N. Y. 402-405; Van Epps v. Van Epps, 9 Paige, 237, 242 ; Hatch v. Hatch, 9 Ves. 297; Whelpdale v. Cookson, 1 Ves. 8.</p> <p>A director, whose personal interests are adverse to those of the corporation, ought to resign, even though the personal interests of a majority of the stockholders coincide with his : Goodings v. Canal Co., 18 Ohio, 169; Rolling Stock Co. v. R. R., 34 Ohio, 465 ; Ogden v. Murray, 39 N. Y. 202,267; R. R. v. Blakie, 1 Marq. (H. L. Cas.) 461.</p> <p>In determining the rental value of an ice dam, a master should be governed by the unimpeached and unanimous testimony of disinterested leading ice dealers of the neighborhood familiar with the property. Evidence of particular rentals of other ice properties in other localities is inadmissible: See R. R. v. Patterson, 107 Pa. 461.</p> <p>A master’s report is not conclusive, but is only a serviceable instrumentality: Phillip’s Ap., 68 Pa. 138, 139; Kutz’s Ap., 100 Pa' 75-</p> <p>The plaintiffs did not acquiesce in the acts of the defendants : mere delay in bringing suit is not acquiescence: Kersey Oil Co. v. R. R. Co., S W. N. C. 147.</p> <p>The complaining stockholders refused to go into the Ice Co. because they did not believe that it would be a successful paying enterprise. They made no objection to the rent until the lease was executed. When objection was made, they were offered one-fourth of the stock of the Ice Co., and they unwisely declined to take1 it. They waited until the Ice Co. had expended over $30,000 and established a profitable business, and then filed this bill.</p> <p>A stockholder cannot, without complaining, objecting, or attempting to have corporate action, maintain a bill to set aside, on the ground of improvidence or inexpediency, an act of the directors duly sanctioned by a majority of the stockholders: Dunphy v. Travellers’ Newspaper Assn., 19 A. & E. Corp. C. 349; Beatty v. Northwestern Trans. Co., 10 A. & E. Corp. C. 265 ; Allen v. Wilson, The Reporter, Vol. xxii., 641.</p> <p>Here there was no attempt to secure the modification of the lease by the corporate action of the directors or stockholders.</p> <p>Whatever right the corporation, or, on its refusal, stockholders, had to avoid the lease should have been exercised in a reasonable time after the facts were known or could have been known : Taylor on Private Corporations, Sec. 631; Twin-Lick Oil Co. v. Marbury, 91 U. S. 589.</p> <p>Some of the stockholders of the Ice Co. purchased stock after the execution of the lease; these are, under all circumstances, innocent holders, and therefore the lease cannot be cancelled.</p> <p>The plaintiffs are estopped by standing by and permitting the expenditure of a large sum of money on the faith of the lease : Smith v. McNeal, 68 Pa. 164; Bispham’s Eq., 284.</p> <p>If there could be any doubt as to the force of the action of the stockholders at their annual meeting in 1884, the lease was ratified by the proceedings of the annual meeting of 1885.</p>

<p>Error, No. 66, July T., 1887, to C. P. York Co., to review a judgment on a verdict for the plaintiff in an action of assumpsit, by Logan A. Marshall against Henry Hass, at April T., 1885, No. 48. Trunicey and Williams, JJ., absent.</p> <p>The action was brought to recover the price of three barrels of whiskey alleged to have been sold and delivered to the defendant. The defendant pleaded non-assumpsit, payment, payment with leave to give special matters in evidence, and set-off.</p> <p>At the trial, on January 26, 1887, the defendant claimed that the whiskey sold to him by the plaintiff was adulterated, and that, under the Act of March 29, i860, entitled “An Act to prevent recovery for the sale of adulterated liquors,” the plaintiff could not recover.</p> <p>The defendant, to maintain the issue on his part, called George W. McElroy, who testified, on preliminary examination, as follows :</p> <p>“ I have made chemistry a study to the extent of knowing how to test simple matters; do not consider myself a medical expert; have had considerable experience in analyzing whiskey. I learned the different tests partly from a pamphlet on the subject of the chemical analysis of liquors, published years ago by a physician appointed in Cincinnati, Ohio, under a law of that state. I made myself acquainted with those formulas. James Black and Mr. Heinitsch, druggist and pharmacist, of Lancaster, and I had repeated meetings at his drug store and made use of those formulas in analyzing different kinds of liquors. The tests were very simple. 1. The spatula, which, being left to remain in the whiskey for some time and then taken out and tried and if it kept its clear surface, the liquor was pure, and if it was oxydized it was not. 2. The next test was that of the litmus-paper, for the purpose of ascertaining whether there was an acid in the whiskey or not. There is no acid in pure distilled whiskey, because, in the process of distillation, the acetic acid, which resides in the grain or fruit out of which the whiskey is made, is eliminated, or, if there is any acid in the whiskey, it has been put in after the distillation has taken place. Another test is the precipitancy of the coloring matter to the bottom of the glass, and drawing it off first at the top and then set fire to it, and if it burned, it was highly adulterated, and if not, it was very much weakened. Another test was the finding of sulphuric acid in it — it will produce a white precipitate in the bottom of the glass. Also with the arsenic; this test was the solution of something I don’t know what it was— if you put a few drops into whiskey, and if there is any arsenous acid in the whiskey, it will 'turn it blue. I made perhaps as many as twenty analysises, under the circumstances that I have related. And then I made some with (of) brandy for Benjamin Mishler, who kept an extensive liquor store in Lancaster; and I examined some brandies for Benjamin Clay — and it was terribly adulterated. I used several of those tests — the litmus paper and all that I have memtioned. I then analyzed some of Mishler’s whiskey for Ben. Clay, the same day and found both very much adulterated. Q. Have you ever acted as expert in the presence of court and jury? A. Yes, sir, in a suit against H. S. Shenk, proprietor of the ‘ Valley House.’ I made the analysis in the presence of court and jury, by the same tests that I have spoken of; the result that it was highly adulterated and not fit to drink. I analyzed some of the whiskey that was brought to my office by Cornelius LeFevre.”</p> <p>The substance of the cross-examination was as follows:</p> <p>“ The tests contained in the book of the Cincinnati doctor were mentioned, but I knew some tests before. We followed those directions to some extent but not entirely; I have read chemistry, and I have studied medicine for three years; that was a good while ago; cannot say that I followed it to any extent. The principal portion of my information on the subject of analyzing liquor is derived from these tests that I have just testified about. I do not know that there were more than three on brandy; they were on whiskey and one on Madeira wine; I analyzed Madeira wine repeatedly; I applied the chloride of barium test for the purpose of discovering the presence of sulphuric acid, and there was a dark precipitate in every case. I have analyzed liquors that didn’t prove to be impure — the J. B. liquor; I had a bottle of that and a bottle of Philadelphia whiskey in court, and I analyzed both; one was pure and the other impure; that was before the war; these analyses were made, principally, about that time; none since; I remembered those tests, though, and applied them to the liquor Cornelius Lefevre brought to my office; had not the Cincinnati physician’s book before me when I made these tests; you could test the purity of liquor by the blowpipe ; I have been present when it was used — the test made — the production of a metalic ring on porcelain; I am not a graduate of a college of pharmacy or medicine; I read medicine with Dr. Isaac Winter; I never attended lectures on the subject of chemistry or medicine. There is also the milk test; you pour some sweet milk into a tumbler of whiskey and if it curdles the liquor is impure; because the acid in the milk comes into contact with the acid in the whiskey, and they get to fighting and curdle up; not so if the liquor is pure; that is just to tell whether there is an acid there.”</p> <p>Re-direct: “ No Whiskey is pure that has an acid in it. Besides the knowledge I derived from the Cincinnati physician’s book, I know that, in the mere process of distillation, the acetic acid, which resides in the grain or fruit, becomes eliminated. I have been present at at least a dozen different analyses besides those I made myself; they were made by Mr. Heinitsch, who is a practical chemist.</p> <p>Re-cross-examination: “ My profession is that of an attorney at law for over forty years; have practiced it constantly all that time; have never been a practicing chemist; I can’t make a quantative or qualitative analysis, nor except by the experiment I have spoken of; and the conclusiveness of these I have derived from the Cincinnati circular, and the use of the articles, and the results. I believe the results are derived from the chemical tests.”</p> <p>By the Court: “ What do you know about the conclusiveness of the tests, independently of the pamphlet? A. I know this, sir: That the books say that the chloride of barium is a test of the presence of sulphuric acid; I know that the books say that when polished steel is placed in a liquid, such as whiskey, and comes out oxydized, there is either a vegetable or mineral impurity in the liquor. I know that litmus paper, from time immemorial, has been applied as a test of acids, and that its color is a pale blue when introduced into a liquor that has an acid; it turns it to a pale red; I know that. I mean to say that I know these things independently of what I got out of the pamphlet; I do from recollection; I don’t think we ever had a pamphlet before us; I know these to be true from my study of the books, independently of the pamphlet. The Court: What do you know about the presence of acid as an indication of the impurity of the liquor; whether it is not a result of distillation ? A. It is only found out by litmus paper. The Court: How do you know that the presence of an acid is evidence of an impurity; or may it not be by distillation ? A. For the same reason that distilled liquor ought not to contain an acid at all; I know it to be true, that, in the process of distillation, the acetic acid that resides either in the grain or in the fruit, out of which the distilled liquor is made, is eliminated by the process of distillation, independently of all the books and pamphlets; I have been in a number of distilleries ; have seen them distill; some stills were very bright and others very dirty ; I suppose the liquor was oxydized by the copper in which the liquor was made. In the dirty still it would be an impurity that ought to be eradicated ; it would act on the system as a slow poison.”</p> <p>The defendant then offered to prove by Mr. McElroy, in addition to what he had already testified to the court, that Cornelius Lefevre brought to his office in York, in the early part of the year 1884, several bottles of the whiskey in dispute,to be analyzed by him.; that he did analyze four bottles of the said whiskey by certain chemical tests, some of which he spoke of in his testimony to the court, and that the results were such as to indicate that the said whiskey was impure, vitiated and adulterated. For the purpose of sustaining the defendant’s plea of payment with leave to give the special matters in evidence. Evidence rejected and exception. [1]</p> <p>Verdict for plaintiff for $363.59. A motion for an arrest of judgment and for a new trial having been made, the defendant offered, in support of the motion, a deposition of G. W. Shirk, a juror, which was in part as follows:</p> <p>“ Q. You have been asked, on cross-examination, whether you were influenced by anything that occurred during the time of your separation from your fellow jurors, and you answered ‘ I did not.’ State, now, whether the offer that was made by the plaintiff’s counsel in the hearing of the jury at the trial and rejected by the court to prove that the defendant, Hass, had, sometime before the trial, gone into the office of the plaintiff’s counsel, and offered to pay the plaintiff some three hundred dollars, or thereabouts, in settlement of plaintiff’s claim, was not used in the deliberations of the jury to influence a verdict in favor of the plaintiff, and were you not one of those who so used it?”</p> <p>Objected to by Mr. Niles as not proper in this proceeding, irrelevant, misleading and unfair.</p> <p>“ A. That point and others brought out during the trial were argued by myself and fellow jurors during the deliberation in the case. ( Witness hesitates considerably.) Q. Well, we are waiting for your answer to the balance of the question — whether it was not used to influence a verdict in favor of the plaintiff? A. It was used to show our opinion from the evidence during the trial. (That part of the question repeated.) A. I cannot speak for the others. I used it because I thought it had a direct bearing on the case in favor of the plaintiff — the two efforts made by the defendant to settle, the one in the office of Stewart, Niles & Neff, and the other at the liquor store. ”</p> <p>On April 15, 1887, the rule for a new trial was discharged by the court, and judgment entered on the .verdict. The defendant' then took this writ.</p> <p>The assignments of error specified, 1, the refusal of defendant’s offer of evidence, quoting the offer and the preliminary evidence, as above; 2, the refusal of the deposition as above quoted.</p> <p>An expert need not be a specialist to enable him to give an opinion about a matter such as this.. Much depends, of course, on the nature of the question in regard to which an opinion is asked. There are some matters of which every man, with ordinary opportunities of observation, is able to form a reliable opinion: Ardesco Oil Co. ». Gilson, 63 Pa. 151. Nor is It imperatively required that the business or profession of the witness should be that which would enable him to form an opinion: Van Deusen ». Young, 29 Barb. 9; Smith ». Hall, 22 Barb. 656; Phillips ». Gregg, 10 Watts, 158. Matters of opinion being in the nature of secondary evidence, but slight preliminary proof is necessary: Leazure ». Hillegas, 7 S. & R. 313; Flinn ». McGonigle, 9 W. & S. 75.</p> <p>McElroy was offered not merely as an expert. The offer embraced a knowledge of facts and results as to the alleged adulteration of the very liquor in question, and upon his experimental knowledge of these facts and results, and not upon abstractions and hypotheses, did we propose to ask him for an opinion. And, of the admissibility of such evidence, it is needless to multiply authorities, for the books abound in them: 1 Greenleaf, Ev., § 440; Carmalt ». Post, 8 Watts, 406; Detweiler ». Groff, xo Pa. 376.</p> <p>In questions of science, skill and Lade, or others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence: 1 Greenl. Ev. 440. Their opinions are confined to their judgment on the facts proved: Jameson». Dunkeld, 12 Moore, 148; 22 Eng. C. Law, 442 ; 23 lb. 269.</p> <p>“ Quality,” said Tilghman, C. J., in Kellogg ». Krauser, 14 S. & R. 142, “ is very much matter of opinion. It is a kind of evidence so commonly admitted without dispute or objection, that I have no doubt of its legality.” “ I never liked the expression ‘ clearly proved; ’ proof which satisfies a jury of the fact or facts is all the law requiresPer Huston, J., in William ». Landman, 8 W. & S. 59. By which, he, of course, meant evidence that had a tendency to do so. Even where a witness testifies to impressions derived from recollection of facts, his evidence should go to the jury: Duvall’s Ex’r ». Darby, 38 Pa., 56-59; D. & C. Steam Towboat Company ». Starrs, 69 Pa. 36.</p> <p>The evidence of the juror should have been admitted. Under the Act of 1869, “ no 'interest or policy of the law ” shall exclude him, by the terms of the Act.</p> <p>Whether or not a witness is competent to testify as an expert is very much in the discretion of the trial court, and the supreme court will never reverse in such case unless the discretion has been grossly abused: Allen’s Ap., 99 Pa. 196.</p> <p>Misconduct in the jury-room cannot be proved by one of the jurors : Welling». Swasey, 1 Brown, 123 ; Cluggage ». Swan, 4 Binn. 150; White ». White, 5 Rawle, 61.</p> <p>The interest or policy of law, which the legislature had in view in passing the Act of 1869, was that which before that time excluded parties from testifying in their own suits, or when they had any interest in controversy. It would therefore be a violent construction of the statute to make it include a ‘ policy of láw ’ wholly different from that under contemplation when it was framed: Tioga Co. v. South Creek Twp., 75 Pa. 433. In Ring v. Baker, 4 W. N. C. 185, C. P. Phila. Co., the jury were not allowed to impeach their own verdict.</p>

Error, No. 221, Jan T., 1888, to Q. S. McKean Co., to review a judgment on a verdict of guilty on an indictment for selling liquors without a license, at Oct. T., 1887, No. 85. Trunkey J., absent.

<p>Error, No. 226, Oct. T., 1887, to C. P. No. 1, Allegheny Co., to review a judgment for defendant in an action of ejectment by John James C. McDonald, K. Noble McDonald and Martha Melvina McDonald, against Scott Dunbar and others, at Dec. T., 1885, No. 611. Trunkey, Green and Clark, JJ., absent.</p> <p>The writ was issued Nov. 19, 1885, claiming an undivided half of two tracts of land known respectively as Nutfieldand Smith-field.</p> <p>By agreement of the parties, the case was tried without a jury, under the Act of April 22, 1874, by Stowe, P. J.</p> <p>Both plaintiffs and defendants claimed under John McDonald, Sr., who died seized in fee with the land in dispute. The material portions of his will dated April 12, 1814, are as follows :</p> <p>“ And first I will & alow that all my just debts and funral charges be paid and satisfied out of personal estate undivided=Item I will & leave to my wife Martha the one halfe of our Plantation whereon we live called Mountplesent during her life by way of Dowrey=or perhaps she might chuse to mary and go to that place where Arthur Darragh no lives & take it in lue of the half of our home plantation called Mountplesent during her life=if she chuses to go to that place where McDarragh lives now=My sons James and Edward must fix hir a comfortable house to live in — or perhaps she may chuse to go and live with one of hir daughters=if she chuses to go and live with one of hir daughters my sons James & Edward must pay hir yearly & every year forty dollars during hir life as rent for hir half of the home plantation calld Mountplesent=: as to the houses thereon my Widow Martha may take hir choise either the main body of the house or the two shade rooms she may make her choise — Item I will & leave unto my sons James & Edward all the plantations ajoyninge together whereon I live at present calld Plighlands Mountplesent Goosberry Thicket Primroshill & a pice of land I bought from Col. George Strewart &a small pice of land I bought from John Stewart during there lives to be eaqually divided between them according to quantity & quality. I alow son James the uper part & son Edward the lower part next to Fredk Johnstone or if the be both agreed the may cast lotts=if James or Edward dies without hairs begott in lawfull marage bed deceaseds land is to fall to the living brother & his heirs — but still reserving my Widows, dowrey as before one halfe of the home plantation during her life=my son James may make a Will & leave his land to aney of his sons that he thinks most worthy & there hairs forever with previledge that one hair may purchis of another hair=if son James males no Will I do hereby will & leave said lands to be eaqually divided between his sons for the use of them & there hairs' forever with priviledge that one hair may purchis of another=if no sons to his daughters there hairs & assigns forever but — if James should die when his children is small the whole profitts of those land must go to seport said chieldren until the youngest comes of age — Item son Edward I will & leave him his land on & in the same maner & way & under the same incumbrance that I have left my son James his land &c=My son Alexander McDonald I will & leave unto him them lands I own on the north fork of Robesyns run in Allegheny County Pennsylvania called Nutfield & Smith-field in the same maner & way I have left my son James his land & under the same incumbrance &c — Item I leave & will to my son John McDonald that brick house he lives in=in the same maner & way that I have left my son James his portion of land=I aliso will & leave to my son John that plantation that lys on Racoon Creek whereon George Goosliorn now lives to him & his heirs & assigns forever=Item I will & leave to Andrew McDonald my son three forth part of that tract whereon he lives called Cornfield on the Ohio river in the same method & way & under the same incumbrance that I have left my son James his lands &c=Item I will & leave to William McDonald chieldren (Aaron excepted I leave nothing to him) whom is said to be my Grandchildren all that tract of land whereon William McDonald now lives together with twenty acres of land of that tract called Cornfield to be run squar of from the river to the hill of an eaqual brenth=for there seport until the come of age only there father is to have victuals and cloths his life time if he will keep out of jeal and stay at home & help his children to work the farm & at William McDonalds death his son or sons is to have the one half of the said lands & William McDonalds daughters the other half of said lands to them their heirs & assigns forever N B these lands is not to be sould during there father William McDonalds life & untill his youngest child be of age=that I bought from William McDonald that lys up on the hills joyning said lands & lands of David Scotts land I will & leave to said chieldren & if my Executors thinks it is best the may sell said lands lying & being on the hills & but stock with the money such as cows horses & sheep &c for the said chieldren or divid the money amonght them when the come of age=I wish Revd Andrew McDonald to enter Guardean for said chieldren=if any of my sons dies & leaves Widows the are not to gett any part of of those lands I have hereby willed to my sons except there Widow be forty five years of age and then not more than the eight part of the land or profits of the lands or houses=I have made no provison for my Grandawghters my sons may make fortuns for there daughters=but as I have hereby given my sons previledge to make Wills the may leave or give part thereof to there daughters by there Will or Will but to be intealed &c that land I bought from Timothy Shane and William Blonk I will & allow to remane as Wood land for my hairs for fence reals & building wood for my heirs but not to be sould by any of my heirs that may sell their lands on Longstown bottom &c My eldest daughter now Margaret Glenn I do hereby will & leave unto hir and hir husband Robert Glenn that plantation whereon William Smith now lives joyning lands of Henry Noble & John Murdock during both there lives & at there death to my daughters hairs & assigns forever I mean my daughters chieleren as heirs. Item I will & leave to my second daughter now called Martha Allison and my third daughter Elizabeth McDonald that tract of land I own lying & being in Mill creek settlement containing 1011 acres more or less joyning lands of Hugh McCredys Willm Laughlins & the hairs of Joseph McCreadys in the same maner & way I have willed my daughter Margaret hir portion of land — Itam I will unto daughter Mary that tract of land I own on the waters or Aarmons run in Brook County State of Virginia joyning the State line & land of Simon Elliots Widow Bells & others on and in the same method & way that I have left my daughter Margaret hir portion of land=but as Elizabeth & Mary is not yett married if they have or may have husbands the are to have the same chance or previledge as my daughters Margret or Marthas husbands of said lands during there lives=if any of my daughters dies without hairs begotten in lawfull marage bed there land is to be sould & divided between the hairs of the other Sisters &c</p> <p>“ any other lands or lotts of ground I may own I allow my Executors to sell and make an eaqual division amonght my other children &c</p> <p>“ Itom my personal estate I do not know well how to divide it as some of them whom is called my hairs never wrought fos any thing I possess Andrew John & Alexander being constantly at school there share ought to be small— ”</p> <p>After disposing of his personal estate, testator makes this further recital: “ as in this will I have ordered all lotts & land that I have not willed to my hairs to be sould by my Executors.”</p> <p>The court below found the facts • as follows, in an opinion by Stowe, P. J.:</p> <p>“ There is no controversy as to the facts in this case. The plaintiffs claim the undivided half of the land described in the writ, and show that a certain John McDonald (under whom both parties claim) made a will, dated April 12, 1814, duly probated, and under which Alexander McDonald (under whom defendants claim) took a life-estate, with remainder over to James McDonald in fee, and that the said James died, having issue,*the plaintiffs, who are his only-heirs at law. The premises now in controversy were described in said will as ‘ Nutfield and Smithfield.’</p> <p>“ The defendants all claim under the will of said John McDonald under a devise to his son Alexander of the said lands, showing a regular paper title, accompanied by possession in the grantees from 1820 to the present time, and, by way of conveyance from Alexander McDonald, deeds to bar the estate-tail supposed to be devised to Alexander under the provisions of said will; and we also find the additional facts set out in the paper attached hereto, marked Exhibit A.</p> <p>“ The question then arises upon points presented by defendants which cover the whole case and which we have herein before answered. These answers render it necessary to now adjudge that the plaintiffs have no right to recover in this action, and to order that judgment be entered in favor of the several defendants and against plaintiffs for costs of suit in this case, unless exceptions hereto are filed in the prothonotary’s office of this court within thirty days of the service of notice thereof.”</p> <p>The additional facts, which counsel for plaintiffs and defendants agreed should be made part of the findings of fact by the court, were as follows, marked exhibit A :</p> <p>“John McDonald left to survive him ten children, namely: Andrew, William, John, James, Alexander, Edward, Margaret, intermarried with Robert Glenn; Elizabeth, intermarried with William Mitchell; Martha, intermarried with Alexander Allison; and Mary, intermarried with William Nesbit. These sons and daughters are all dead, and all of them except Alexander left issue which still survive.</p> <p>“James McDonald died on April 31, 1863. Alexander McDonald died on Nov. 25, 1864, intestate, and without having had issue. Edward McDonald survived all his brothers and died on May 30, 1867, leaving issue, which still survive. He died in possession of a portion of the land in controversy, which, by his last will, dated April 16, 1867, he devised to his daughter and grandchildren, defendants in this suit.”</p> <p>The defendant presented, inter alia, the following points, which were affirmed by the court:</p> <p>“ x. The devise by John McDonald, Sr., to his son, Alexander McDonald, conveyed to the .latter an estate-tail, which was duly barred by the deeds of Alexander to John McDonald and to Benjamin Mevey.”</p> <p>“ 2. If the estate of Alexander McDonald, under the will of John McDonald, was only a life-estate, the remainder in the lands devised to him vested by the terms of the will in Edward McDonald, and consequently no title ever vested in the plaintiffs under the said will.”</p> <p>“ 5. Under all the evidence and the law as applicable to the facts of this case, the plaintiffs cannot recover.” .</p> <p>The plaintiffs filed various exceptions to the findings of fact and conclusions of law. The court overruled the exceptions, and entered judgment for the defendants. The plaintiffs then took this writ.</p> <p>The assignments of error specified the action of the court, 1-3, in affirming defendant’s points, quoting them; 4, in overruling plaintiff’s exceptions; and, 5, in entering judgment for the defendants.</p> <p>None of the provisions of the will is sufficient to enlarge the life-estate expressly given to James, to an estate-tail. Certainly, the testamentary power of appointment amongst the children would not have that effect. It has been ruled over and over again that even a general power of appointment will not enlarge an express life-estate to a fee; therefore, it cannot be claimed that a limited power such as this would have that effect. On this point, it is necessary only to refer to 4 Kent’s Com., 319 and 53 ; Fisher v. Herbell, 7 W. & S. 63; Musselman’s Est., 39 Pa. 469; Cowles v. Cowles, 53 Pa. 17S ; Donahue v. Helme, 5 W. N. C. 539; Stephenson v. Richardson, 88 Pa. 40.</p> <p>Neither can the remainder given to James’s sons and daughters, nor the limitation over to Edward, in case of his death without issue, have any such effect: Sheet’s Est., 52 Pa. 257; Robins v. Quin-liven, 79 Pa. 333 ; Carroll v. Burns, 108 Pa. 386; Fitler’s Ap., 10 W. N. C. 429; Affolder v. May, 19 W. N. C. 44.</p> <p>Where a testator, after devising real estate to one person, without any express devise to the issue of such person, makes a devise over to another on an indefinite failure of issue male or female, or issue in general, of the prior taker; in such case, the prior taker has an estate-tail by implication: 2 Fearne, Remainders, § 564 and 581; 2 Jarman, Wills, page 438, pi. 3, and Hawkins, Wills, p. 192. This construction is adopted in order to effectuate the indirectly declared intent that the estate should not go over till an indefinite failure of issue male or female, or issue in general, of the prior taker: Fearne, § 5<54-</p> <p>The reference-clause is to be used simply to ascertain and fix Alexander’s estate, and to make use of it to give an estate to Edward, who is not even mentioned in the devise itself, would be against the grammatical construction of the clause, against the intent of the testator as shown by the whole context of the will, and against the rules to be gathered from the decisions heretofore made on similar referential clauses.</p> <p>Words occurring more than once in a will must be presumed to be used always in the same sense, unless a contrary intention appears by the context, or unless the words be applied to a different subject: 3 Jarman, Wills, 707.</p> <p>The cardinal rule for the construction of wills is that which requires us to ascertain and give effect to the intention of the testator: Ferry’s Ap., 13 W. N. C. 348; Webb v. Hitchins, 105 Pa. 95 ; Richard’s Ap., Leg. Int., Sept. 22, 1887, p. 349.</p> <p>The rule to be gathered from all the cases is that a reference clause, such as this, is to be used to determine not who shall take, but what estate the devisee named shall take: 2 Jarman, Wills, p. 348, and note, and Hindle v. Taylor, 5 D. G., M. & G. 576; Baker v. Richards, 27 Beav. 320; Baskett v. Lodge, 23 Beav. 138; Leigh v. Leigh, 22 L. T. Rep. 837.</p> <p>Alexander taking only a life-estate, the remainder was included amongst the “ other lands or lots of ground ” which the testator directed his executors to sell, or the testator died instestáte with respect to it.</p> <p>The other lands ordered to be sold were those “ not willed to his heirs.” Besides, this construction would prolong the trust until after Alexander’s death, or contemplate the sale of the possibility of a remainder in his life-time, in which case a share of the proceeds would go to him.</p> <p>Even if it were possible to conclude that Alexander took only a life-estate, and that the remainder was included amongst the lands ordered to be sold by the executors, the plaintiffs’ claim to an undivided fourth cannot be sustained. The proceeds of such lands as the executors were authorized to sell, were to be distributed by “ an equal division amo.ngst his other children.” Plaintiffs contend that “ other children ” mean children other than daughters, by reason of the immediately preceding clause of the will, which provides for the event of any of the testator’s daughters dying without heirs. There is no such connection between these clauses as to justify the interpretation claimed. This is made clear by the provision relating to the Wilson tract. The daughters were not to be excluded from its proceeds, and there is nothing to indicate a distribution different from the proceeds of other lands sold by the executors.</p> <p>The testator did not die intestate as to the remainder in question. Not only is the presumption of law against it; but the whole scope and scheme of this will exhibits the testator’s intention to dispose of everything he owned.</p> <p>If Alexander took only a life-estate, it is clear that the remainder did not go over to James, in whole or in part. It is equally clear that, if James had died, as Alexander did, intestate, and without having had issue, the lands devised to James would have gone over to Edward, who survived him as “ the living brother,” and his heirs. Alexander took as James did, which means as Edward did also; otherwise Alexander did not even take a life-estate, for the life-estate of James is given to him by a provision which applies to Edward also.</p> <p>It is clear that the testator first gave to James (as well as to Edward) an'estate for life. He next provided that if James or Edward should die without heirs begot in lawful marriage bed, the deceased’s lands shall fall to the living brother and his heirs. There is no doubt that this created an estate-tail. in James and Edward : Braden v. Cannon, 24 Pa. 168; Covert v. Robinson, 46 Pa. 274; Moody v. Snell, 81 Pa. 359; Hope v. Rusha, 88 Pa. 127; Phila. Trust Co’s Ap., 93 Pa. 209; Stone and Wall v. McMullen, 10 W. N. C. 541; Goodright v. Pullyn, 2 Ld. Raym. 1437; 1 Fearne, Remainders, p. 161.</p> <p>The power of appointment given to James does not reduce the estate-tail previously devised : Ogden’s Ap., 70 Pa. 541; Kay v. Scates, 37 Pa. 31; 1 Fearne, Remainders, 424; Linn v. Alexander, 59 Pa. 43 ; Greenawalt ta Greenawalt, 71 Pa. 488; 2 Preston, Estates, 460; 1 Preston, Abstracts, 401.</p> <p>The testator having used appropriate words to create an estate-tail, they must have their legal effect, unless from subsequent inconsistent words, it is very clear that the testator meant otherwise : Jessup v. Wright, 2 Bligh, 51; Doe v. Gallini, 2 Bligh, 51; Criswell’s Ap., 41 Pa. 290; Cole 7/. Goldsmith, 7 Taunt. 331; Jordan v. Adams, 99 E. C. L. R. 499; Lawrence v. Lawrence, 105 Pa. 335.</p> <p>Other provisions of the will indicate an intention to give the first takers more than a life-estate. The sons’ widows’ interests are limited; they would have no interest in a life-estate. Testator provides that if the sons devise part of their lands to their daughters they shall be “ entailed.” The statement that Margaret Glenn’s children are meant as heirs, implies that the term should have its legal meaning as applied to the sons.</p> <p>not heard. — We have here an ancient transaction and an interpretation of the will on which has been founded a long line of transfers and descents, undoubted and undisputed until suit brought, a period longer than is necessary to bar a writ of right, a time which has buried two generations of men, both parties and witnesses. This interpretation was constructively known to the plaintiffs and their predecessors in the title; for the conveyance to bar the entail was a public act of record, done in the court of common pleas; was judicial in its nature, and on record in the recorder’s office. Besides, they were claimants of land under the same will, whose provisions were known to them, and, to crown the whole, there was sixty-five years’ possession, continued, peaceable and adverse to the title of the plaintiffs. They therefore had notice. An interpretation of a will, acquiesced in so long a time, will not be set aside: Follmer’s Appeal, 37 Pa. 121; Carter v. Fishing Company, 77 Pa. 3x5.</p> <p>The case does not rest on the statute of limitations, but lapse of time and interpretation of the will. Hence, that Alexander’s death falls within the peiod of the statute of limitations is unimportant.</p> <p>Other reasons give force to our position, even if the true interpretation of the will was that only an estate for life vested in Alexander. At common law, the effect of a conveyance by a life-tenant of an estate greater, in fee or fee-tail, was a forfeiture of the life-estate and a vesting of the estate immediately in the remainderman: 2 Black. Com., 274-5-6; Coke, Litt. 251; Littleton, 451; Wedner’s Coke, Vol. 2, No. 6, Am. Edit. 167; 1 Cruise, Dig.', Am. ed., 112. The reason was, it is a violation of his fealty, and of the trust reposed in the life-tenant by the grantor of-his estate. In Pennsylvania, the effect of the recording Act of 1715 is that the recorded deed conveys only the estate which the grantor has; and hence the actual forfeiture is saved: McGee v. Pfouts, 3 Dali. 486; Sprague v. Woods, 4 W. & S. 194-5. But though this is the effect of § 4 of the Act of May, 1715, it does not alter the nature of the life-tenant’s wrongful act. The remainderman — by which I include all predecessors — lies by, suffers the deed to remain as source of title and takes no step until time has laid in the grave all living men, whether parties or witnesses. It is clear, therefore, that time has set the ancient interpretation at rest, and men may now safely rest upon it.</p> <p>The following principles put an end to the controversy: Contemporánea expositios et optima et fortissima in lege : 2 Inst. 11, 6 Branches Abridgment, 386. Consensus facit legem; consensus tollit errorem : Coke, Litt. 126. Consuetudo est optimus interpres legum: 2 Inst. 18.</p> <p>The doctrine of estoppel is not necessary to our case, for the plaintiffs are barredfrom recovery on the grounds stated. Yet silence will postpone where silence is a fraud. It then becomes operative— operative quietude, as defined in one case. See the following cases: Chapman v. Chapman, 59 Pa. 219; Millingar v. Sorg, 55 Pa. 216; Same v. Same, 61 Pa. 476; Carr v. Wallace, 7 Watts, 394; Woods v. Wilson, 37 Pa. 379, 383.</p>

Error, No. 1, Oct. T., 1888, to C. P. Westmoreland Co., to review a judgment on a verdict for the plaintiff in an issue to determine the validity of a judgment, wherein the Nordyke & Marmon Co. was plaintiff, and A. L. Marsh and John M. Marsh, trading as Marsh Bros., were defendants, at May T., 1884, No. 135. Green, J., absent.

Error, No. 182, Oct. T., 1887, to C. P. Forest Co., to review a judgment in ejectment by L. R. Freeman against J. C. Cornwell, Charles Bonner and others, tried without a jury, at May T., 1880, No. 10. Green, J., absent. March 20, 1880, the summons was issued for warrant No. 5158, containing 500 acres, in Green township, Forest Co. The defendant pleaded not guilty, and abstracts of title were filed by both plaintiff, and defendants.

Error, No. 320, Jan. T., 1888, to C. P. Somerset Co., to review a judgment on a verdict for defendant in an action of trespass on the case by Pearson Lohr against the Somerset & Cambria R. R. Co., at Jan. T., 1883, No. 171. Gordon, C. J., and Trunkey, J., absent.

Error, No. 29, July T., 1888, to C. P. Fayette Co., to review a judgment on a conditional verdict for the plaintiff in an action of ejectment, by Elijah Hutchinson against Samuel Welch, with notice to John McKnight and John Stewart, terre tenants,and John W. Moore, at June T., 1885, No. 376. Gordon, C. J., and Trunicey, J., absent. The plaintiff, by his writ, claimed title .to a lot of some four acres in South Union township, Fayette county. Plea, not guilty.

Error, No. 216, Jan. T., 1888, to C. P. Somerset Co., to review a judgment on a verdict for plaintiffs, in an action of ejectment by James B. Martin and Mary A. Martin, his wife, in right of the wife, against Peter S. Hay, at Sept. T., 1885, No. 185. TRUNKEYand Clark, JJ., absent. The writ, issued July 3, 1885, claimed to recover the land in dispute. The defendant pleaded not guilty.

Error, No. 425, Jan. T., 1888, to C. P. Chester Co., to review a judgment for defendant in an alternative mandamus, tried before the court without a jury, at Aug. T., 1886, No. 75. Green & Clark, JJ., absent.

Error, No. 57, Jan. T., 1888, to C. P. Fayette Co., to review a judgment for plaintiff in an action of covenant by James L. Shaw, to use, against the Pittsburgh & Connellsville R. R. Co., at Sept. T., 1S82, No.- 105.

Error, No. 207, July T., 1887, to C. P. Warren Co., to review a judgment on a verdict for plaintiffs in an action of assumpsit by Seneca Burgess and Maria O. Burgess his wife, in right of Maria O. Burgess, against Myron Waters, at June T., 1882, No. 48. Trunkey, J., absent. May 8, 1882, summons issued.

Appeal, No. 47, July T., 1888, from a decree of C. P. Wyoming Co., dismissing exceptions to a master’s report on a bill in equity by Lewis Hedden and Margaret, his wife, against Joseph W. Fassett and Harvey Sickler, 2d, at No. 29, Equity Docket No. 2. Williams and McCollum, JJ., absent.

Error, No. 424, Jan. T., 1888, to C. P. Schuylkill Co., to review a judgment on a verdict for plaintiff in an action of assumpsit, wherein A. D. Flower was plaintiff, and Rebecca Taggart was defendant, at Jan. T., 1886, No. 91. Sterrett and Mitchell, JJ., absent. It does not appear when suit was brought. On Jan. 4, 1886, the narr and copy of the claim were filed, but they are not given. The defendant pleaded non assumpsit and payment with leave.

Error, No. 220, Jan. T., 1889, to C. P. Montgomery Co., to review a judgment on a verdict for plaintiff in an action of trespass by Benjamin B. Hughes against Chalkley Jones, at March T., 1887, No. 13. Williams and McCollum, JJ., absent. This action was brought Dec. 20, 1886, under the Act of 1842, to recover treble damages for cutting certain timber trees on land claimed by plaintiff. Plea, not guilty.

Error, No. 352, Jan. T., 1888, to C. P. Warren Co., to review a judgment of compulsory non-suit in an action of trespass on the case by Christena Hanson against the Burgess and Town Council of the Borough of Warren, at March T., 1887, No. 76. Trunicey, Green and Clark, JJ., absent.

Error, No. 226, Oct. T., 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict in favor of the defendant on a scire facias sur mortgage, by R. M. Kennedy to the use of John E. DuBois, executor of John DuBois, deceased, against James Atkinson, and Rose H. Atkinson, his wife, at March T., 1887, No. 277. Sterrett, J., absent.

Error, No. 245, Oct. T., 1887, to C. P. No. 2, Allegheny Co., to review a judgment in favor of defendant, overruling a demurrer to a plea, in an action on the case, by M. A. Reed against William C. Wilson, at Oct. T., 1885, No. 186. Trunkey and Clark, JJ., absent.

Appeal of A. Scott et al., trading as A. Scott & Son, No. 213, Jan. T., 1886, from decree of C. P. Delaware Co., dismissing exceptions to the report of an auditor… Held: the creditors are equitable owners. Also, further, that Graeff was not an equitable owner of as many separate shares as he had distinct debts (he owned three judgments, two of which had been paid in full from proceeds of sheriff’s sale of real estate, and the third was partly paid in same manner).

Error, No. 34, July T., 1888, to C. P. Lancaster Co., to review a judgment on a verdict for plaintiff in an action on the case by Anna E. Varnau and Geo. Held: the question of negligence on the part of the company in allowing the pole to stand so near the track was a question of fact for the jury: Hall v. Union Pacific Ry., 16 Fed. 744; S. C., 5 McCrary, 257. Plaintiff was injured by reason of some one having placed a push-car on defendant’s railroad track.

Error, No. 25, July T., 1888, to C. P. No. 3, Phila. Co., to review a judgment on a verdict for plaintiff in an action on the case, by F. .0. Horstman et al., trading as William H. Horstman & Sons, against The Siemens Regenerative Gas Lamp Co., to recover a sum alleged to have been agreed upon, on failure of certain lamps, purchased by plaintiffs, to prove satisfactory, at March T., 1886, No. 409.

Rule to quash writ of error, No. 132, Jan. T., 1889, to review C. P. No. 3, Phila. Co., setting aside an award of an arbitrator in an action of assumpsit, by Bernard Gunn against H. W. Bowers, at March T., 1887, No. 148. Reported in 126 Pa. 552.

Appeal, No. 205, Jan. T., 1891, by George Clarence Baldwin, an heir, to review a decree of the O. C. Chester Co., sustaining exceptions… Held: that the assignment was invalid for want' of delivery, and the proceeds belonged to Trough’s estate. “ In Scott v. Lauman, 104 Pa. 593, Wm Scott executed an assignment of a certificate of deposit to his brother, Andrew Scott, by endorsement thereon under seal, and instructed his attorney ‘ that he should take it with him, and put it…

Error, No 203, July T., 1888, to C. P. No 1, Phila. Co., to review a judgment on a verdict in ejectment by Walter R. Kern against Louis M. Simpson and Edwin Middleton, at Sept. T., 1886, No. 384. Held: therefore, as its property, leases of that line, which was subject to the $300,000 mortgage. The bonds of the $300,000 mortgage sold in the market for about 98 per cent. The bonds of the $10,000,000 mortgage were not on the market.

Error, No. 29, May T., 1887, to C. P. Dauphin Co., to review a judgment for defendant on an appeal from settlement by the Auditor General of taxes claimed by the Commonwealth, for the year ending the first Monday of November, 1885. Trunkey, J., absent. The appellant filed the following specifications of objection to the settlement: 1.

Error, No. 146, Oct. T., 1887, to C. P. Cambria Co., to review judgment on verdict in ejectment, by the heirs of John McCloskey, deceased, against James McCloskey,… Held: purely by statute. A man would squat on land, build himself a cabin, define his boundaries, and if the owner presented himself within 21 years, the squatter would find it to his interest to purchase his title. Should his possession not be disputed, after 21 years he would hold it despite the former owner.

Error, No. 199, Jan. T., 1888, to C. P. No. 4, Phila. Co., to review the action of the court in striking off a discontinuance, in an action on the case, by B. Stewart Bentley and John K. Fredericks, assignees in bankruptcy of Peter Herdic, for the use of Frank L. Herdic, against John G. Reading,' at March T., 1884, No. 45. Motion to quash writ because the order of the court was not a final judgment.

Application to file agreement to quash appeal from O. C. Schuylkill Co. McCollum, J., absent. The following agreement, signed by counsel, was presented to the court: “ It is agreed that this appeal be quashed with like effect as if the record from the court below, duly certified, had been brought up by the appellee, the appellant having failed to prepare a paper-book or to bring up the record.”

Error, No. 198, Oct. T., 1888, to C. P. Armstrong Co., to review a judgment on a verdict for defendants in an action of ejectment by Mary Harkins against Isabella Doran, and Hugh Harkins et al., heirs of John Plarkins, deceased, and the administrator of said decedent, at March T., 1888, No. 328. Green and Hand, JJ., absent. The writ of ejectment was issued Feb. 22, 1888, for ninety-nine acres of land more or less, in North Buffalo township, Armstrong county.

183, Jan. T., 1890, to C. P. No. 2, Philadelphia Co., to review a judgment of compulsory non-suit in an action on the case by Thomas Fleming and wife against the Pennsylvania R. R. Co. to recover damages for the death of their son caused by the alleged negligence of the defendant, at Sept. T., 1887, No. 538. Reported in 134 Pa. 477. Green and McCollum, JJ., absent from the argument April 7, 1890. The motion for re-argument was filed when court was not sitting.

<p>The rule that a married woman, with her husband’s consent, may maintain an action against a firm of which her husband is a member, upon a lease by that firm of her separate real estate, is not modified by the fact that, in the examination of the husband in the court below, he was treated as a party adverse to his wife.</p> <p>An offer to prove a former recovery in an entire contract was rejected in this case, there being no plea of former recovery.</p> <p>That the judgment is against one of two joint defendants in this case, if properly before the court, is no cause for reversal.</p>

Error, No. 18, March T., 1852, to C. P. Monroe Co., to review a judgment on a verdict for plaintiff in an action of debt, by the Commonwealth, to the use of Mary Ann Fetherman, against David Keller, impleaded with George Rafferty. Before Black, C. J., Lewis, Lowrie and Woodward, JJ. Gibson, J., absent at Nisi Prius. April 29, 1850, a narr was filed which recited the bond and condition, and, for breach, negatived the condition in its words.

<p>Rule to quash writ of error, No. 410, Jan. T., 1886, to C. P. No. 3, Phila. Co., to review judgment on a verdict in an appeal from a magistrate in a landlord and tenant case, under the Act of Dec. 14, 1863, to recover leased premises, by R. B. Okie, against Thomas Depuy, at Dec. T., 1884, No. 458. Before Mercur, C. J., Gordon, Paxson, Trunkey and Clark, JJ. Sterrett and Green, JJ., absent, March 27 ; and Paxson, J., absent April 3.</p> <p>Jan. 3, 1887. Rule for penalties under the Act of May 25, 1874. Clark, J., absent.</p> <p>The affidavit for the rule to quash was as follows:</p> <p>“ R. B. Okie, being duly sworn according to law, doth depose and say: That he is the defendant in error ( plaintiff in the court below) in the above entitled cause. That the said writ of error was sued out of this court on the 9th. day of March, 1886, returnable on the first Monday of January, 1887. That the said suit is a proceeding by this deponent as landlord, under the provision of the Act of Assembly of December 14, 1863, to recover, from the said Thomas Depuy, possession of premises No. 37 South Second street, in the city of Philadelphia. That the said Thomas Depuy’s term having expired on the 31st day of December, 1884, this deponent commenced his suit on the 2d day of January, 1885, before one of the magistrates of the city of Philadelphia, who, on the 16th day of the. same month, gave judgment in favor of this deponent, the plaintiff below. Whereupon, the said Thomas Depuy, the defendant below, appealed to the Court of Common Pleas No. 3, for Philadelphia county. That the said suit was so proceeded in said court that, on the 14th day of January, 1886, the same was tried, and a verdict rendered in favor of plaintiff below, this deponent. That the said defendant below thereupon moved the said court to grant him a new trial which, after argument, was refused on the 5th day of March, 1886, and judgment was, on the next day, entered in favor of this deponent. And the said Thomas Depuy thereupon took said writ of error from this court to remove the said cause here from the said Court of Common Pleas No. 3. That this de^ ponent is advised by his counsel, and he believes, that there is no error in the record of said cause, that no exceptions were taken on the trial, that no exception was taken to the charge of the judge, and the charge has not been filed ; and deponent believes that said writ of error is intended for delay, and to keep him still longer out of possession of his said premises; and he believes that the said plaintiff in error will not prosecute the case to a termination. And further, that the record has not yet been brought up to this court.”</p> <p>The plaintiff in error thereupon filed an affidavit, in answer, in which he alleged, inter alia, as follows: “Said affidavit is informal, vague, defective and uncertain, in that it simply states that deponent ( affiant therein ) ‘ believes that said writ of error is intended for delay, and to keep him still longer out of possession of his said premises. And he believes that said plaintiff in error will not prosecute the case to a termination.’ Deponent avers that said R. B. Okie, the affiant therein, should state upon what grounds his said belief is based and founded, to enable the court to properly judge of his bona tides. And deponent emphatically and unqualifiedly denies that he purchased and brought said writ of error for the purposes of delay, &c., and without any intention to prosecute the same to a termination. Deponent positively avers that said writ of error was not brought for delay and to hinder defendant in error, and that it is deponent’s intention to prosecute same to a final termination, and such were his intentions at the time he purchased and brought said writ. Deponent is further advised by counsel, and he so believes, that he has good, meritorious and legal grounds for a review and correction, by this honorable court, of said cause and the proceedings therein in the court below, and for these reasons solely, and no other, he brought said writ of error.”</p> <p>The assignments of error were filed, upon the argument, as follows :</p> <p>“1. The evidence does not show that three months’ notice to quit had been served upon the tenant (plaintiff in error) previous to the issuance of the original summons, such as is contemplated by the-Act of Assembly of December 14, 1863.</p> <p>“ 2. The evidence does not show that F. B. Okie (a witness produced on behalf of plaintiff below) had authority to give the tenant notice to quit, or authority to accept a waiver of such notice by the tenant.</p> <p>“ 3. The evidence does not show that the tenant had waived his right to receive such notice as is contemplated by said Act of Assembly. •</p> <p>“4. The learned judge erred in charging the jury, inter alia, that the defendant (tenant) might waive the notice to quit.</p> <p>“ 5. The learned judge erred in charging the jury, inter alia, that plaintiff (landlord) was not bound to give defendant (tenant) notice to quit, if he (tenant) had waived such notice.”</p> <p>The court will not dispose of a writ of error in this summary way. The affidavit should inform the court what his information is, and from whom and where he obtained it, particularly as his assertions are denied by counter affidavit.</p> <p>The court will not infer that delay was intended, merely from a view of the proceedings, without an acknowledgment by the party that the writ was sued out merely for delay: Somerville v. White, S East, 145 ; Butterfield v. Windle, 1 Smith (English), 335.</p> <p>The court ought to give judgment of reversal if there be error in law, notwithstanding no error in law is assigned: Castledine v. Mundy, 14 B. & Ad. 94; Charnley v. Winstanley, 5 East, 270; Le Bret v. Papillon, 4 East, 502. A party has the right of review in all cases unless excluded by statute: Gosline v. Place, 32 Pa. 523. A writ of error lies where a party is aggrieved by any error in the foundation proceedings, judgment or execution of a writ: Com. v. Beaumont, 4 Rawle, 368; Tidd, 1134.</p> <p>On certiorari, nothing can be reviewed but error in law upon the face of the record, whilst an appeal brings up the entire case: McClemmons v. Graham, 3 Bin. 89.</p> <p>A writ is a matter of course under the Act of 1722, Purd. 602.</p> <p>Under the Act of June 16, 1836, §§7, 8, P. L. 762, a writ of error is a supersedeas: Bryan v. Comly, 2 Miles, 271 ; Adams v. Hindman, 2 Miles, 464; McDonald v. Gifford, 1 Brews. 276; s. c. 6 Phila. 315. See Act of March 11, 1834, P.L. 135.</p> <p>In Wright v. Clenndening, 1 Brews. 449; s. c. 6 Phila. 329, a writ of error with sureties was held a supersedeas in all landlord and tenant cases. See, also, Haines v. Levin, 51 Pa. 412; Byrne v. Building Ass’n, 6 W. N. C. 254; Jackson & Gross, L. & T., pp. 319, 322, 330, and §§ 533, S3S, 603.</p> <p>The answer of the plaintiff avoids the real question involved in this rule, namely, is there any error or probable ground to allege error in the record ? And sets up as defence mere technicalities. ■</p> <p>In regard to the allegation of defendant in error that the writ of error was brought by plaintiff in error only for delay, it is, of course, met by a denial. But defendant bases his belief upon the advice of counsel that there is no error on the record and no bill of exceptions was taken or filed. If plaintiff in error can show even one probable error, our rule should be discharged.</p>

<p>Motion for re-argument of writ of error No. 29, May T., 1887, from C. P. Dauphin Co., to review the action of the court below in entering a judgment in favor of the Commonwealth on an appeal from a settlement made by the auditor general and state treasurer, of taxes claimed by the Commonwealth. Reported above, page 694.</p> <p>The petition for re-argument averred that the court had fallen into an error in supposing that the tax upon the capital stock settled under the Act, of 1879, and the tax upon the shareholders under the Act of 1885 were claimed for the same year, to-wit, the taxing year ending the first Monday of November, 1885, whereas the tax claimed against the shareholders was for the year ending the first Monday of November, 1886. The Act of 1885 must be regarded as taking effect for the tax year of 1886, as the Act was passed June 30, and it would not be practicable to make an election as to the taxes of that year when the election is required to be made on or before March 1st of the current taxing year.</p> <p>relied upon the language of Clark, J., in Com. v. LehighValley R. R., 104 Pa. 89, and Com. v. Dunbar Furnace Co., 4 Pa. C. C. R., 349, as establishing the principle that a taxing statute which forms part of a system, and is a supplemental provision, should be given effect for the taxing year following the one current at the date of its enactment.</p> <p>relied upon Mackellar v. Com., 10 Cent. 45, s. c. 10 Atl. 780, as deciding that the provision of the Act of 1885 “that the Act shall go into effect immediately, reserving and excepting unto the commonwealth the right to collect any taxes accrued under the laws repealed by this Act,” had the effect to compel an opportionment of the taxes due under the Act of 1879, from November 1884, to June 30, 1885, the date when the latter Act went into operation.</p>