Volume 2 — Pennypacker's Pennsylvania Reports

Ejectment by dames A. Horton against Tbe Cbevington and Bunn Coal Company. Upon tbe trial in tbe Court below, before Hall, J., the testimony was very voluminous.

Replevin by William L. Elkins and William G. Warren, trading as William L. Elkins & Co., against Charles A. Z. Griesemer, to recover possession of a tank of petroleum.

Scire facias sur mortgage by Charles V. R. Evans, administrator de bonis non cum- tes'amento annexe of John Van Reed, deceased, against Henry Leis and Daniel Schell, terre tenants.

Appeal of John Gravenstine, administrator of tbe estate of Horace H. Walter, deceased, from tbe decree of the Orphans’ Court of Berks County, dismissing exceptions to the auditor’s report, upon tbe account of Joseph M. Feger, guardian of tbe said Horace H. Walter. Horace H. Walter died in 1879, aged about nineteen years.

Assumpsit by James Douglas and Henry Conuard, trading • as Douglas & Connard, against The Junior Steam Fire Engine Company of the City of Reading, to recover the amount of a bill for fixtures and repairs to a steam fire engine. The defendant pleaded, inter alia, the statute of limitations.

Appeal of Jacob S. Livingood in the matter of the estate of Mary C. Ringler, from the decree of the Orphans’ Court of Berks County, reducing his compensation as guardian, and confirming the report of the auditor upon his account. October 6th, 1863, Livingood was appointed by the Court, guardian of the person and the estate of Mary C. Ringler, a minor child of Jerome Ringler, deceased.

Scire facias sur recognizance by the Commonwealth of Pennsylvania for the use of Mahlon Mengel against Harrison Mengel, with notice to the Philadelphia and Reading Railroad Company, terre tenant. Upon the trial in the Court below, before Sassaman, J., the facts appeared as follows: Benjamin Schaeffer was the guardian of Harrison, Achatias, and Amalias Mengel, three children of Daniel Mengel, deceased.

1. Where the Court below was not requested to charge in any particular way there can be no reversal for a mere omission to charge. 2. Held: that this charge was not such an error as did the plaintiff any harm. 3. In order to continue the lien of a judgment by an amicable revival the terre tenant is a necessary party. Error to the Court of Common Pleas of Berks County.

In re the report of the members of the bar of Bucks County, and the order of the Court striking the name of II-T-from the roll of… Held: the 29th of November, 1879, and was not here again until August, 1880 ; that he did not lock his office, but left; it as he usually did, went to Sellersville and next day to Philadelphia; knew before leaving of the coroner’s investigation; had had a conversation wúth Mi\ Bhellenberger, district attorney, about it; heard the result…

Case by Lucinda Spangler against Samuel H. Kunes, to recover damages for an alleged nuisance. On the trial in the Court below, before Mayer, P. J., the plaintiff gave evidence as follows: The plaintiff was the owner of a house and lot in Eagle-ville, Centre County, Pa. On this property was a well of water fifty-five feet deep. The water was of good quality, and large in quantity, and was used for family purposes.

Scire facias sur mortgage, by the Washington Building and Loan Association against George Hager, defendant, and James Dunn, terre tenant. Upon the trial in the Court below, before Watson, P. J , the following facts appeared: George Hager, in 1872, was the owner of twelve shares in the stock of'the plaintiff association, and of certain real estate.

Appeals of James Pepper and John. Gamble from the decree of the Court of Common Pleas of Clinton County, sustaining exceptions to the report of an auditor appointed to make distribution of the fund in court arising from the sheriif’s sale of the personal property of James Colbert.

Assumpsit commenced March 29th, 1877, by Samuel R. Stover against Rash Cadwallader, Frank M. Welsh, and William C. Sanderson, late trading as Cadwallader, Welsh & Co., to recover for use and occupation. Cadwallader was not served, and the remaining defendants pleaded non assumpserunt, payment with leave, set-off, and the statute of limitations.

Case stated by Samuel Beck, against John K. Robins, executor of the estate of Samuel Drum, deceased. For money loaned, Samuel Drum executed to the plaintiff the following judgment note: $800.00.

Certiorari sur appeal of John Glaub from the decree of the Court of Common Pleas of Elk County, refusing an application for a rule to open judgment in a case of John M. Wagoner against Joseph Foster and John Glaub. Judgment was entered March 8th, 1862, for $1071, upon a single bill, dated September 13th-, 1861, containing a warrant of attorney to confess judgment.

Appeal of Samuel W. Collom from the decree of the Court of Common Pleas of Huntingdon County, distributing the proceeds of the sheriff’s sale of the real estate of Aaron Dunsworth. The real estate of the defendant, Dunsworth, was sold by the sheriff, April 8th, 1881, for $750, and the fund in court was referred to an auditor for distribution.

Case by Martin McCann against J. P. Hosie, John Hosie, James Archbald, George H. Catlin, R. 'YV. Archbald, T. E. Archbald, and Mary W. Catlin, partners, trading as the Eairlawn Coal Company, Limited, for alleged damages caused by maintaining a coal-breaker adjoining the premises of the plaintiff. The summons was issued May 4th, 1877, in Luzerne County. It was returned non est inventus as to T. E. Arch-bald, and there was no appearance for him.

Debt, by the City of Scranton against Ira Tripp, to recover city tax, as registered in the city lien docket. The Act of May 23d, 1874, P. L., p. 230, provides, inter alia: “ Section 36.

Debt, by David'Ackerman and Betty Ackerman, bis wife, in right of said wife, against tbe 'Western Assurance Company of Toronto, Canada, upon a policy of fire insurance.

Assumpsit, by Margaret Bott against Jacob Staman and J. C. Stoner. The defendant Stoner pleaded non-assumpsit, and non-assumpsit infra sex annos, upon which pleas the case was put at issue. The suit was brought upon a note in the following form: “$1000.

Case by Robert Carroll against the Pennsylvania Railroad Compány to recover damages for injuries to the person of the plaintiff, caused by the alleged negligence of the defendant.

Appeal of Henry Charles and Michael Charles from the decree of the Court of Common Pleas of Lancaster County requiring them to account, upon the petition of Benjamin Huber and Susan Huber and John M. Warfel and Anna Warfel for a citation.

<p>Error to the Court of Common Pleas of Lancaster County.</p> <p>Assumpsit, by Frederick Bletz against The Columbia National Bank, to recover penalties imposed by section 6198 of the Revised Statutes of the United States, for taking interest in excess of the legal rate.</p> <p>The defendant pleaded to the jurisdiction of the Court, nil debet, and filed certain special pleas as follows:</p> <p>1. That it did not take from the plaintiff any loan or discount or interest, upon any note, bill of exchange, or evidence of debt, “ at a rate greater than the rate limited for banks of issue organized under the laws of the State of Pennsylvania, where the said defendant bank is located.”</p> <p>2. That by the provisions of its charter it was authorized to take interest at the rate allowed by the laws of Pennsylvania for banks of issue organized under the laws of said Commonwealth, and that banks of issue organized under the laws of said Commonwealth were authorized by their charters to take such rates of interest as might be agreed upon by said banks and the parties contracting with them (naming eighteen such banks, and referring to their acts of incorporation).</p> <p>3. That as to certain counts of the narr, being fifteen counts, in a suit previously brought by the present defendant against the present plaintiff to recover the amount of the notes mentioned in said counts, the present plaintiff demanded a set-off of all the interest and discount paid on the notes; and all of the interest and discount, amounting to $614.35, was deducted, and only the balance of the principal sums was paid by the present plaintiff to the present defendant.</p> <p>4. That as to the other counts of the narr, being one hundred and fifty-one counts, in a suit previously brought by the present defendant against the present plaintiff to recover moneys duo on the promissory notes mentioned in said counts, the present plaintiff claimed “ a set-off of all the excess of interest and discount above six per cent.” received by the present defendant on the said notes, “ and all of said excess, with interest thereon, said excess amounting to $1412.22, and the interest thereon to $407.47, aggregating $1819.69,” which was allowed as set-off and deducted.</p> <p>On the trial before Patterson, J., the plaintiff offered in evidence, without objection, a paper showing the amount of various notes discounted by the defendant for the plaintiff, between December 4th, 1871, and September 20th, 1872, inclusive, to be $202,622.39, upon which the discount charged was $2398.26; the excess over six per cent, was $927.88, and the total of discount and excess was $3322.14. The defendant offered in evidence the charters of all the banks named in his second special plea, to be followed by evidence that these banks were organized and carried on business from December 1st, 1871, to December 1st, 1873, and that defendant took from plaintiff only such rates of interest as were agreed upon between them.</p> <p>The Court, on objection, overruled the offer, and exception was taken.</p> <p>Defendant then offered in evidence the record of a suit to January Term, 1874, No. 113, by the present defendant against the present plaintiff, to be followed by proof “ That all the interests and discounts, and interest on the same, aggregating $614.35, accepted and received by this defendant from the plaintiff, in the last said suit, on the notes mentioned in the third special plea filed in the case now trying, was claimed as a set-off by this plaintiff, and the same was allowed to him by this defendant, being all the interest and discount ever taken from him on said notes; and further, that all the excess over six per cent., accepted and received from this defendant by this plaintiff, on all the notes mentioned in all the counts, in the plaintiff’s declaration, mentioned in defendant’s last special plea filed in this case, the said excess amounting to $1412.22, and the interest thereon, amounting to $407.47, aggregating $1819.69, was claimed by this plaintiff as a set-off in said suit, No. 113, January Term, 1874, and that this defendant then allowed the same to him ; and this defendant only received from the plaintiff the principal of said notes without any interest, and after deducting all discounts charged on said notes, and interest on said discounts, and all of said excess and interest thereon.”</p> <p>The Court, on objection, overruled the offer, and exception was taken.</p> <p>Counsel for the defendant asked the Court to charge the jury as follows:</p> <p>“1. This Court has no jurisdiction for the recovery by plaintiff' of the penalties claimed in the declaration filed in this suit, and therefore the verdict must be for the defendant.</p> <p>“ 2. There having been in Pennsylvania at the several dates of the discounts mentioned in the plaintiff’s declaration, from December 1st, 1871, to December 1st, 1878, banks of issue organized under the laws of said State, authorized to take such rates of interest as might be agreed upon between such banks and the parties contracting with them, the defendant having accepted and received from the plaintiff only such rates of interest or discount as were agreed upon between the plaintiff and the defendant, the plaintiff cannot recover in this action, and the verdict must be for the defendant.</p> <p>“ 3. The plaintiff cannot recover any interest on any of the penalties mentioned in the declaration.</p> <p>“ 4. The uncontradicted evidence being that all the interest and discounts taken, received, reserved or charged by the defendant from the plaintiff on the notes mentioned and described in counts numbered 45, 67, 80, 105, 120, 125, 131, 140,144, 151, 157, 159, 163 and 164 of the plaintiff’s declaration were claimed by the plaintiff as matters of set-off, and were allowed to him by this defendant as credits in a suit brought by this defendant against this plaintiff to No. 113, January Term, 1874, in this Court, to recover the amounts of the notes'mentioned in said counts, the plaintiff cannot recover any of the- penalties mentioned in said counts, and as to them the verdict must be for the defendant.</p> <p>“ 5. The uncontradicted evidence being that all the excess of interest and discounts above 6 per cent, taken, received, reserved or charged by the defendant, from the plaintiff, on all the notes mentioned and described in all the counts of the plaintiff’s declaration, with interest on such excess, was claimed by the plaintiff, and was allowed to him by this defendant as a credit in a suit brought by this defendant against this plaintiff’ to No. 113, January Term, 1874, in this Court, to recover the amounts of the notes mentioned in counts (giving the numbers) of the plaintiff’s declaration, the plaintiff cannot recover any of the penalties mentioned and claimed in his declaration, and theverdict must be for the defendant.”</p> <p>The Court negatived these points, and charged the jury :</p> <p>“ It seems that the parties here are agreed as to. the correctness of the calculation of interest charged on the several loans and-discounts, and the proof as set forth in paper ‘ No. 1, D. W. P.,’ and not disputed, is that the interest so charged is in excess of the legal rate of interest; we, therefore, are requested to instruct you to render your verdict for the plaintiff for the sum of $9434.87, which we now do.”</p> <p>Defendant excepted to the answers to the points and the charge.</p> <p>November 22d, 1880. Yerdict for the plaintiff for $943487, upon which judgment was subsequently entered.</p> <p>The defendant then took out a writ of error, assigning as errors:</p> <p>1 and 2. That the Court erred in overruling the offers of the defendant.</p> <p>3, 4, 5, 6 and 7. That the Court erred in its answers to the defendant’s 1st, 2d, 3d, 4th and 5th points.</p> <p>8 and 9. That the Court erred in its charge, and in entering judgment on the verdict.</p> <p>Defendant has a right to support his plea, whether the facts are sufficient to constitute a defence or not: Howell v. McCoy, 8 Rawde, 256.</p> <p>As to the 2d, 3d and 4th assignments: Brown v. Second National Bank of Erie, 22 P. F. Smith, 209 ; Bletz v. Columbia National Bank, 6 Norris, 87; Bank v. Gruber, 8 W. N. C., 119 ; Bank v. Xarmany, 11 W. N. C., 42.</p> <p>Under the 30th section of the National Banking Act of June 3d, 1864, the sum to be recovered is twice the amount of the interest as a penalty, not as a debt-bearing interest.</p> <p>It is 'not a debt at all. Where money is recoverable under a statute that makes no provision for interest, none can be recovered: Weir v. Allegheny County, 11 Pittsburgh L. J., N. S., 199 ; see Bank v. Johnson, 25 Albany Law Journal, 6.</p> <p>The rejection of evidence, the relevancy of which does not appear, is not ground of error.</p> <p>A party, from whom a national bank has taken an excess of interest, is entitled to recover the penalty and the excess of interest: Gruber v. The Bank, 6 Norris, 465.</p> <p>The claim is not for a penalty. It is a debt due the borrower. As a debt, it carries interest: 1 Binney, 488.</p>

Mechanics’ lien, filed by Henry S. Herr against Henry Harnish, administrator of Michael S. Harnish, deceased, and James Nee ver. The record showed that there had been a jury trial in the Court below, with a verdict for the plaintiff:* for $1724.25, the judgment on which was reversed in the Supreme Court.

F.rror to the Court of Common Pleas of Lancaster County. tition by Richard J. Levis and Mary T. E. Levis, his wife, in right of said Mary E. Levis, against Kirk Brown and Emmeline H. Brown, his wife, in right of the said Emmeline H. Brown.

Partition by John Long, Sarah Long, Mary Shand and Jacob Shand, her husband, Elizabeth Stiffell and Christian Stiiiell, her husband, against Susan Long, Catharine Long, Adaline Long, Eanny Free and John Free, her husband, for a house and lot in the city of Lancaster. On the trial in the Court below, before Livingston, J., the following facts appeared: March 29th, 1812.

Case by Eliza Kessering against Charles Markley to recover damages for an alleged breach of promise of marriage. On. the trial in the court below, before Patterson, J , the plaintiff testified that she made the acquaintance of the defendant in the spring of 1879, at his home. He visited her in March, 1879, and called upon her about a dozen times up to July, and after that every evening, and very often in the afternoon.

Scire facias sur mechanic’s lien, by George M. Steinman & Co., against John J. Miller, owner, or reputed owner, and contractor, with notice to Jacob Griel, J. P. Stormfeltz, Thomas Thurlow, and Mrs. Nancy Albert, terre tenants.

• Error to the Court of Common Pleas of Lehigh County. Certiorari, issued September 8th, 1880, to the judgment of an alderman, W. L. Jones, in an action of trover and conversion brought by H. J. Woodring against Josiah Henninger. The transcript of the alderman was as follows: “Trover and conversion. Capias issued January 10th, 1880. Daniel Weaver, constable. January 12th, defendant brought up.

■ Attachment under the Act of March 17th, 1869, by Joseph Lieberman against George W. Hoffman, defendant, and W. P. Huber, administrator of the estate of Peter Hoffman, deceased, and executor of the estate of Catharine Hoffman, deceased. The writ of attachment was issued and served May 24th, 1880, at which time there was in the hands of the garnishee money due to the defendant as his share of one estate $1866.34, and of the other estate $48.95.

<p>Error to the Court of Common Pleas of Lehigh County.</p> <p>Assumpsit by Elevina E. Barner against Jeremiah Roth, to recover the amount of a certain promissory note for $200, drawn by Solomon R. Kline to the order of the plaintiff, for which it was alleged the defendant was liable. The note was in the following form :</p> <p>“$200. Salisbury, March 31st, 1877.</p> <p>“One year after date we promise to pay to the order of Elevina E. Barner two hundred dollars, with interest from date, without defalcation, for value received.</p> <p>“Solomon B. Kline.</p> <p>“ Credit the drawer.</p> <p>“Jeremiah Both.”</p> <p>On it were indorsed, “Jeremiah Roth,” and “March 30th, 1878, paid interest on the within note, $12.” “ March 30th, 1878, paid on this note, $40.”</p> <p>The narr contained two counts. The first set forth the making of the note, and “ by reason whereof, and by force of the statute in such case made and provided, the said Solomon R. Kline-became chargeable to pay to the said Elevina E. Barner the aforesaid sum of money, according to the tenor of the same note;” and, being so chargeable, the aforesaid Solomon R. Kline afterwards “ promised the plaintiff’ to pay it.” The second count set forth that the said sum being unpaid, “ it was then and there agreed that, in consideration that he, the said Solomon R. Kline, should then and there confess a judgment to the said Jeremiah Roth in the sum of seven thousand dollars, the said Jeremiah Roth would pay and satisfy the debt due and owing as aforesaid by Solomon R. Kline to the said Elevina E. Barner out of the proceeds realized by the said Jeremiah Roth on the judgment aforesaid, and the said Solomon R. Kline, to' wit, afterwards, on the said eleventh day of September, Anno Domini one thousand eight hundred and seventy-seven, in pursuance of the aforesaid certain discourse then and there had with Jeremiah Roth, then and there did confess, sign, seal and deliver unto the said Jeremiah Roth a judgment-note for the sum of five thousand dollars, under the agreement and with the consideration that the said Jeremiah Roth pay and satisfy the debt aforesaid due and owing by the said Solomon R. Kline to the said Elevina E. Barner, and the payment of which said debt the said Jeremiah Roth then and there upon himself did assume.”</p> <p>The plea was non-assumpsit.</p> <p>At the trial in the Court below, before Albright, P. J., Kline, for the plaintiff, testified that he had given Roth, the defendant, a mortgage; that he met him again a few weeks before the judgment for $5000 was signed, and continued: “ I said I had given him the mortgage already, and that I also had some other debts ; then he said that, if I would sign him this judgment, he wmuld see that Mrs. Barner’s note would be made all right.” In a few weeks he saw Roth again.</p> <p>“A. I said I would sign him another judgment if he would see that this note would get all right.</p> <p>“ Q. What did he say to that ?</p> <p>“ A. He agreed to it.</p> <p>“ Q. Did you then give him a judgment?</p> <p>“A. Yes,sir.</p> <p>“ Q. What did he say about the note in question ?</p> <p>“ A. He did not say anything further than that he said if I would give him another judgment he would be satisfied.</p> <p>“ Q. Did you give him a judgment then ?</p> <p>“A. Yes, sir.”</p> <p>Upon cross-examination Kline testified that he owed Roth some' money for cattle, and gave the judgment for part of what he owed him.</p> <p>“ Q. In this conversation you had with Mr. Roth, he told you he wanted a judgment ?</p> <p>“ A. Yes. sir.</p> <p>“ Q. You talked at that time about some debts that you had, did you not ?</p> <p>“A. Yes, sir.</p> <p>“ Q. And among the debts that you spoke of you spoke of Mrs. Barner’s debt ?</p> <p>“A. Yes, sir.</p> <p>“ Q. What relation is Mrs. Barner to you ?</p> <p>“A. I am a cousin to her father.</p> <p>“ Q. Then, when you speak of these debts, it was said by Mr. Roth, that if you would give him a judgment for what you owed him, he would fix it with Mrs. Barner, if you could not pay it ?</p> <p>“A, Yes, sir.</p> <p>“ Q. And that was the way it was said?</p> <p>“ A. Yes, sir.</p> <p>“ Q,. That is, that he would help you fix it if you could not ?</p> <p>“A. Yes, sir.</p> <p>“ Q,. And that was said of the other small debts of yours?</p> <p>“ A. Yes, sir.</p> <p>“ Q. And that is the way in which it was said, just as I have asked you ?</p> <p>“A. Yes, sir.</p> <p>“ Q. And this conversation took place at the time the judgment was given ?</p> <p>“A. Yes, sir.”</p> <p>Roth denied that he had promised to pay or fix Mrs. Barner’s paper, and said that the conversation was as follows :</p> <p>“I just said I would try and help him fix up some of his papers, so that he would not get into trouble at the present time, and I fixed three or four of them.”</p> <p>Counsel for defendant presented, inter alia, the following points, all of which were negatived:</p> <p>“ Fourth. It having been shown by the plaintiff that Kline owed Roth more than the amount of the judgment, and that it was given to secure the debt of Roth, and there being no proof that Roth was to pay the claim of the plaintiff out of the proceeds, the verdict must be for the defendant.</p> <p>“ Fifth. No contract has been shown in this ease that can be enforced by the plaintiff, and the verdict must be for the defendant.</p> <p>“ Sixth. The plaintiff' cannot recover on the contract declared upon, because it is not averred that the consideration of the judgment was in part the debt of the plaintiff.</p> <p>“ Seventh. There is a fatal variance between the averments in this declaration and the proof, inasmuch as the contract declared upon is that the defendant would pay and satisfy’ the debt of the plaintiff", while the proof of the plaintiff is that the contract was to pay the claim of the plaintiff, if Kline, the principal debtor, could not pay;’ consequently the verdict must be for the defendant.</p> <p>“ Eighth, Under all the evidence, the verdict must be for the defendant.”</p> <p>The Court charged the jury, inter alia:</p> <p>“The plaintiff seeks to recover against Jeremiah Roth upon this ground : It appears that on September 11th, 1877, Solomon R. Kline signed and gave to Jeremiah Roth what is commonly called a judgment note. It is a promise to pay to Jeremiah Roth $5000, with a warrant of attorney authorizing confession of judgment, and upon that instrument judgment was entered in this Court; and [it is alleged by the plaintiff that, at the time this judgment was given, Jeremiah Roth promised and agreed to pay this debt, which Solomon R. Kline owed to Mrs. Barnér, and that the judgment was signed by Mr. Kline, on condition that he promised to pay said debt, and that the promise and agreement of Roth to pay Mrs. Barner was the inducement to give the judgment. If that is proved, then I say to you that the plaintiff is entitled to recover], and if it is not proved, your verdict must be in favor of the defendant, notwithstanding the fact that Kline may owe Mrs. Barner, or that Roth’s name appears upon the note, or that Roth may have said that he would pay Mrs. Barner.</p> <p>* * * * * =K *</p> <p>“ The burden is upon the plaintiff, who makes this allegation, to establish it. If the plaintiff satisfies you from the evidence in the case, that, when the judgment was givqn, it was agreed between Solomon R. Kline and Jeremiah Roth that Roth would pay the debt of Mrs. Barner, it being the amount owing on this note in suit, and that the judgment was confessed on condition that Roth would pay this claim of Mrs. Barner, and if it is proved that there was a promise or undertaking by Roth to pay the debt of Kline, which he owed to Mrs. Barner, and that that promise or undertaking induced Kline to confess judgment, the plaintiff can recover in this suit. If the plaintiff has not satisfied you that such a contract was made, and that the judgment was given upon that condition, your verdict must be in favor of the defendant. And I say to you here that there must be an absolute promise on the part of Mr. Roth. If he merely said that he would pay the note of Mrs. Barner, in case Kline could not or would not, it would not be enough to hold him ; it would not be such an undertaking as to bind Jeremiah Roth, and if you find that that was all that was said, your verdict must be in favor of the defendant.</p> <p>“If, after considering the testimony of these two witnesses upon this important and principal point in the ease, you find it is so equally balanced that you cannot say which you are to believe, whether there was a promise or not, the plaintiff has failed to make out his case, and your verdict must be in favor of the defendant. On the other hand, if you find that Kline owed the note to Mrs. Barner, which is really not in dispute, and if you find that, when the judgment was given, it was given on condition that Roth would pay this note to Mrs. Barner, — that he undertook and promised to pay it, and that Kline was induced by that promise to give the judgment, — you may find a verdict in favor of the plaintiff for the amount of the note, with interest, less the amount paid on account of it.”</p> <p>January 20th, 1882. Verdict for the plaintiff for $196.48, upon which judgment was afterward entered.</p> <p>The defendant then took a writ of error, assigning as errors, inter alia, the answers to the above points and that part of the charge within brackets.</p> <p>The plaintiff is a stranger to the consideration of the contract, and cannot maintain an action on it in her own name: Robertson v. Reed, 11 Wright, 115 ; Torrens v. Campbell, 24 P. F. Smith, 475 ; Kountz v. Holthouse, 4 Norris, 235 ; Justice v. Tallman, 5 Norris, 147 ; Wynn v. Wood, 10 W. N. C., 345; Malone v. Keener, 8 Wright, 107; Maulé v. Bucknell, 14 Wright, 52; Shoemaker v. King, 4 Wright, 107; Miller v. Long, 9 Wright, 350 ; Townsend v. Long, 27 P. F. Smith, 143; Blymire v. Boistle, 6 Watts, 182.</p> <p>There was no contract in fact shown between Kline and Roth, and certainly no such legal contract as will entitle the plaintiff' to recover.</p> <p>There is a variance between the allegations and the proof: Umbehocker v. Rassel, 2 YeateS, 339.</p> <p>The promise was by parol. Mrs. Barner was not a stranger to the consideration, for the defendant had signed and indorsed the note which she held. She was beneficially interested in the promise. It created a trust: Merriman v. Moore et al., 7 W. N. C., 426; Hind v. Holdship, 2 Watts, 104; Beers v. Robinson, 9 Barr, 229 ; Vincent v. Watson, 6 Harris, 96 ; Bellas v. Fagely, 7 Harris, 273; Torrens v. Campbell, 24 P. F. Smith, 471; Townsend v. Long, 27 P. F. Smith, 143; Kountz v. Ilolthouse, 5 W. N. C., 463 ; Justice v. Tail-man, 5 W. N. C., 90.</p>

Case by Edwin Zimmerman against William H. Eckert, Walter J. Green, Charles Liehtenwallner, Edwin Kress, and Catharine Ludwig, to recover the difference between a bid alleged to have been made by the… Held: did not discharge Singerly from liability for the loss on a resale.

Replevin by Edwin Zimmerman against Daniel H. Miller, assignee of the Franklin Savings Bank, to recover possession of two promissory… Held: and that the witness was to pay in consideration therefor the debts of the bank to other parties due and pressing at the time; that in consequence of this arrangement the witness did so pay the sum of $4630, debts of the bank, and the notes in question, together with some other securities, were delivered over and transferred by the…

Appeal of Isabella Fosselman from the decree of the Or-' phans’ Court of Mifflin County, in the matter of the assessment of collateral inheritance tax on the estate of Elizabeth Fosselman, deceased. Elizabeth Fosselman died in January, 1880, leaving a last will and testament dated July 17th, 1878. In it she made certain devises and bequests to her niece, Isabella Fosselman, who lived with her.

■ Certiorari sur appeal by A. G. Croll from the decree of the Court of Quarter Sessions of Montgomery County, sustaining exceptions to the report of a jury of viewers.

Dewees. The assignee filed an account, showing a balance on hand of $981.53, which was referred to Aaron S. Schwartz, as auditor, to distribute. Before the auditor a claim was made on behalf of Mrs. Mary E. Slater, in which the facts ’as found by him were as follows: Mary Dewees, the mother of Jacob H. Dewees, died some time before his assignment was made.

Feigned issue, in which Barbara Ruth and Peter Ruth were plaintiffs, and John Gerhab was defendant, to determine how much, if anything, was due upon a… Held: gentlemen of the jury, that this presumption was quite final. It is simply a presumption, and it can be overturned by the truth ; and here we have the declaration of the husband to Mr. Gerhab, if you believe Mr. Gerhab’s testimony, at the time they tried to settle, that he declared his wife knew nothing about it.

Debt by Rebecca Hiltebeitel against John G. Swartley and Daniel Latshaw to recover the amount of a sealed note and interest. The note was in the following form; “Royer’s Ford, April 5th, 1869. “$500. “ One year after date we, or either of us, promise to pay Catharine Hiltebeitel or order five hundred dollars, with interest of five and a half per cent, per annum, without defalcation, for value received. f 5-CENT \ f 10-OENT \ [ STAMP.

Case by Matthew Proctor against Jacob II. Place, to recover damages for obstructing a road over which the plaintiff claimed a right of way.

Assumpsit by C.. Edward Peisert, assignee for the benefit of creditors of I. L. C. Miller, against the First National Bank of Bethlehem, to recover a balance of moneys deposited with the defendant, and alleged to belong to the said estate. Upon the trial in the Court below, before Meyers, P. J., the facts appeared to be as follows: November 4th, 1873, Miller and wife made an assignment for the benefit of creditors to Peisert, the plaintiff.

Appeal of John Horner and Samuel Smith from the decree of the Orphans’ Court of Northampton Comity, confirming the report of an auditor appointed to distribute the estate of Thomas Clendeunin, deceased.

Scire facias sur mortgage by Henry C. Wolfe against Rebecca Newhart and her husband Tilghman Newhart. An appearance was entered by an attorney of the Court. The service of the sci.fa. was accepted and judgment was entered September 1st, 1879, for want of an affidavit of defence, in the sum of $21-48.41. Tilghman Newhart died September 11th, 1880. An alias levari facias was issued March 28th, 1881.

Assumpsit by John S. Lehn against Horace M. Norton, to recover damages for an alleged breach of contract of sale. Upon the trial of the case in the Court below, before Feeder, J., the following facts appeared: The defendant, in November, 1875, became assignee for the benefit of creditors of Dietrich & Brother. On the 16th of December, 1875, he held a public sale of the effects of the assignors. Prior to the sale the conditions were read aloud.

<p>1. A receipt indorsed on a deed showed that the consideration was paid by a purchase-money bond and mortgage. The mortgage was not recorded for more than sixty days after its execution, and, before either it or the deed of conveyance was recorded, the vendee sold a portion of the mortgaged premises. Held, that, the deed being in the line of the purchaser’s title, the receipt upon it was notice to him of the mortgage.</p> <p>2. There being evidence of admissions by the mortgagee of payment of the mortgage by money and papers, the Court was asked to charge, that, if the jury were satisfied, from all the evidence in the case, that the mortgage was paid, the verdict must be for the defendants, and the Court affirmed the point, if the jury found that the mortgagee “ was actually paid the whole amount of the mortgage money.” Held, that the qualification of the point was not error.</p> <p>3. In a sai. fa. by an administrator upon a purchase-money mortgage for $16,500, executed to him for the consideration of lands of the decedent sold by him, the mortgagor S- and tern tenants offered in evidence an agreement between the decedent and S. made in the lifetime of the decedent, in which the latter authorized S. to sell the lands for a sum not less than $20 000, promised to ratify contracts made for the purpose and to convey, and that S. should have one-half of all he obtained in excess of $20,000 as remuneration. They further offered to prove that, upon the death of the decedent, letters of administration were granted to the mortgagee and S. jointly, and that thereafter it was agreed between S. and the widow, heirs, and guardians of the children of the decedent to carry the agreement made by the decedent into effect, and that for this purpose the lands should be sold under proceedings in partition in the Orphans’ Court and conveyed to S.; that thereupon S. was discharged as administrator and a sale made, and the mortgage executed pro forma; and that a written agreement was made between S. and the widow, heirs, and guardians of the children of decedent reciting the prior agreement and other facts, and agreeing that S. should sell the lands for a sum not less than $20,000, and pay over to the representatives of the decedent one-half of the money in excess of that sum, after deducting expenses, and thatthe residue or other real estate taken in exchange should be divided between them in a certain- manner and in certain proportions designated; and that the terms of the agreement were fulfilled by the division of the lands remaining unsold after sundry payments, and the mortgage was thereby satisfied. Held, that, inasmuch as the mortgagee was not a party to the agreement with the heirs, and there was nothing in it relieving him from liability to account, the evidence was properly excluded.</p> <p>4. The agreement between the decedent and S. was not evidence for any purpose, and whether or not it vested in S. a power to sell, coupled with an interest, was immaterial.</p> <p>5. When a trustee files his account and charges himself with money which he ought to have ready for the person entitled, the debtor cannot avail himself of the charge as an admission of his payment and shut out the accompanying words at the time of filing, or other matter in the account tending to show the cause for accounting for the money, as if it had been received.</p> <p>6. If the act of a party or a portion of his words be proved against him he" may show in rebuttal the words accompanying or relating to said act, or the other words uttered in connection with those already proved, when necessary to arrive at a correct understanding of the transaction.</p>

Appeal of Ira T. Clement from the decree of the Court of Common Pleas of Northumberland County, confirming the report of a master recommending the reformation of a bond executed by Clement as surety. Held: equity would afford him relief on the bond against the sureties.

2 for the County of Philadelphia. Replevin by Peter Allegaert against John Smart, landlord,, and Thomas W. Sinnote, bailiff, upon a distress for rent. The defendants made avowry, to which the plaintiff pleaded Hen en arrere, and a special plea setting up a breach of covenant on the part of the defendant, on which the case was put at issue.

2, for Philadelphia County. Dower, by Maria Aull against George B. Bonnell. A case stated was agreed upon which set forth the facts substantially as follows: On the 22d day of May, 1858, Alfred Aull granted and conveyed unto Sarah Aull, in fee, a messuage, barn, spring-house, and lot or piece of ground containing nine acres, two roods, and thirty-six perches, in Philadelphia.

2, for Philadelphia County, confirming the report of a master. Bill in equity filed by James T. Kirkpatrick, Jr., and Maderwell Kirkpatrick, trustees, against Daniel Buck, James Buck, and William W. Lee, to restrain the defendants from removing certain machinery bought by them at a sheriff’s sale, from an iron foundry, which had been purchased by the complainants upon a sale under a levari facias on a mortgage.

J, for Philadelphia County. Assumpsit by Richard K. Sheldon and Andrew Adams, trading as Sheldon & Adams, against George W. Carey. Upon the trial in the Court below, before Briggs, J., the plaintiffs gave evidence of a sale of marble to Jacob Kohler, amounting to sixty dollars, and that they declined to sell to Kohler until he obtained the order in dispute from the defendant.

Appeal of Martha Carman from, the decree of the Orphans’ Court of Philadelphia County, adjudicating upon the account of Julianna B. Carman, executrix of the will of Hudson Carman, deceased.

• Appeal of Peter Castor from the decree of the Court of Common Pleas, No. 4, for Philadelphia County, confirming the report of an auditor appointed to distribute a fund in court, arising from the paymeut into court of the principal of a ground rent owned by the appellant'. The fund in court was $1669.34, which was referred to W. Herbert Washington as auditor to distribute.

2, for Philadelphia County. Case stated, in which Francis H. Duffee was plaintiff, E. J. Records defendant, and the Tradesmen’s National Bank garnishee. It was subsequently modified by making J. B. Lippincott a party. The facts agreed upon in the case stated were as follows; The plaintiff, Duffee, November 18th, 1878, obtained a verdict against the defendant, Records, for $1764.07, on which judgment was subsequently entered.

Appeal of William J. Howard and Sophia B., his wife, from ¡¡the decree of the Court of Common Pleas No. 2, of Philadelphia County. Bill in equity, by Uriah W. Stokes against William J. Howard and Sophia B., his wife, Charles G. Poúlson and Susan!!

<p>1. A. and B. agreed with C. that they W'ould “ furnish lumber to be used in the aforesaid houses (as ordered by the saidO.), delivered on the ground, and will charge therefor the following prices per thousand feet,” specifying certain kinds of lumber and prices, and “ will accept in settlement of their bills, rendered for the materials as above, one-half thereof in cash monthly, on the first day of every month, and one-half thereof in good improved first mortgages.”</p> <p>I), covenanted with A. and B., “that the payments agreed to be made to them in said agreement, shall and will be made in the manner and form in said agreement mentioned, for ail the lumber delivered to the ninety-eight houses in said agreement mentioned.” A. and B. furnished lumber to C., some of which was not of the kinds and prices specified in the agreement. Both O. and D. made payments on account.</p> <p>Meld, that D.’s covenant was a contract of suretyship and not of guarantee.</p> <p>Meld, further, that it was not restricted to the kinds of lumber and prices specified in the agreement between the original parties.</p>

1, for Philadelphia County. Case by Myer Steinhart, by his next friend and father, Philip M. Steinhart, against The Lombard and South Streets Passenger Railway Company, to recover damages for injuries to the plaintiff, alleged to have been caused by the negligence of the employes of the defendant.

3, for Philadelphia County. Replevin by James Maberry against William Dudley, Sr., landlord, and Abraham Updike, bailiff, for goods distrained by defendants for rent in arrear uuder a lease.

2, of Philadelphia County. Case by Watson Malone and Bernard T. Malone, trading as Watson Malone & Son, against the City of Philadelphia, to recover damages for the erection and continuance of a sewer,' by which, as alleged, sewerage was carried into the dock adjoining plain tills’ wharf, and filled the dock úp and made it unfit for navigation.

Appeal of the Manufacturers’ National Bank from the decree of the Court of Common Pleas, No. 1, of Philadelphia County, confirming the report of an auditor appointed to distribute the proceeds of a sheriff’s sale of real estate. In the Court below Jesse Lane issued a scire facias sur mortgage against George II. Roberts, upon which he obtained judgment for $5168.33, and under a levari facias the premises embraced in the mortgage were sold to Margaret B. Roberts for $11,000.

2, of Philadelphia County. Scire facias sur foreign attachment in a suit of William W. Jones against James Fayer, defendant, and the Manufacturers’ National Bank, garnishee. Judgment was entered by confession against the defendant for $1260.62. Upon the trial in the Court below, before Mitchell, J., the following facts appeared: The bank account of William Fayer, agent, with the garnishee, showed a balance in favor of the depositor, December 23d, 1879, of $913.74.

the Court of Quarter Sessions of Philadelphia Cov,nty. Petition of Philip Mitton and twenty seven, other citizens of the Sixth Ward, of the city of Philadelphia, asking the Court to decree'that John Wade and Henry L. Greenebaum had been duly elected school directors of the said ward, at the election of February 18th, 1879, and that the return of William F. Englehart and William H. Wakefield, as elected, was a false return.

3, for Philadelphia County. Assumpsit by William Brice, John Allen, and Ephraim Brice, trading as Brice, Allen & Co., against Josiah B. Myers, to recover a drawback upon advances upon butter, shipped to England, as alleged, through, the plaintiffs on account of the defendant. Upon the trial in the Court below, the plaintiffs called G. JH. ¡¡¡¡wester, who identified the following receipts: “Received, Philadelphia, October 7th, 1S74, of Messrs.

4, of Philadelphia County. Case by Mary Corley against the Pennsylvania Mutual Aid Society, to recover the amount of a policy of insurance for $2000, upon the life of her husband, Patrick Corley, executed in her favor by the defendant company.

1, for Philadelphia County. Bill in equity for an account by Nicholas Petry and Rollins M. Braithwait against August Geissel and John Bayha. After answer filed, denying the allegations of the bill, the case was referred to Hampton L. Carson, as master, who found the material facts substantially as follows: The complainants and defendants had been partners in the business of making and selling carnages under an agreement executed May 14th, 1867.

1, for Philadelphia County. * Detinue by William Rementa against J. Warner Erwin, executor of the estate of Charles Rubieam, deceased, to recover possession of certain writings in the possession ‘of the defendant, and alleged to belong to the plaintiff.

4, for the County of Philadelphia. Debt, by John Roberts, trustee, against George Williams, Charles E. Ellis, and Anna M. Ellis, executors of the last will and testament of Amos Ellis, deceased, upon an obligation of the testator, in which he guaranteed the payment of a certain mortgage debt.

Appeal of Philip Ulrich from the decree of the Court of Common Pleas, No. 4, for Philadelphia County, sustaining exceptions to the report of a master. Held: and for the purposes of meeting claims and demands against these properties. It is not contended that the advance took any other course than that specified in the receipt.

Assumpsit by Thomas Marsden, James Carr, and George Miles, trustees, against William Wetherill and Jacob J. S. Seitzinger, administrator de bonis non, etc., of Jacob W. Seitzinger, deceased, to recover the value of certain personal property alleged to have been taken by the defendants and converted to their use. There was a return of nihil as to Wetherill, and the case proceeded against Seitzinger alone.

. Debt, by W. D. Elliott, trading as W. D. Elliott & Co., against Joseph L. Snyder, upon a promissory note for $304, dated February 29th, 1876, drawn by Snyder to the order of Elliott & Co., and indorsed by J. C. Holt. Upon the trial in the Court below before Walker, A. L. J., the following facts appeared.

Scire facias sur mortgage by Michael B. Plollman against N. T. Dundore and C. W. Heintzelman, administrators of W. G. Herrold, deceased, and Mary Herrold. The action was brought on a mortgage for $6734, dated August 10th, 1877, from William G. Herrold and Mary, his wife, to M. B. Hollman. William G. Plerrold being dead, his administrators were substituted. The defendants pleaded coverture, nil debet, payment, payment with leave, and set-off.

Assumpsit by Chester E. Albright against Jacob J. Leiser. After the case was at issue, it was submitted to Lewis V. Housel, as referee, by agreement. The referee filed his report August 9th, 1879, and on the 12th of .the same month exceptions were filed.

Appeal of the overseers of the poor of Chillisquaque Township from an order of two justices removing a pauper and her family.

Scire facias to revive a judgment entered April 3d, 1872, by James Clarkson against Samuel Thom for $4154.29, upon a note with confession of judgment, dated March 14th, 1872, payable six months after date, with interest. April 2d, 1877, the death of the plaintiff was suggested, and his administrators were substituted of record. February 4th, 1878, a rule to open the judgment was made absolute.

Scire facias sur judgment entered by Bridget A. Hoban against Peter Walsh, administrator of the estate of James Hoban, deceased, et al. Upon the trial in the Court below, numerous exceptions were taken to the rulings of the Court by the defendants. May 11th, 1881, verdict for the plaintiffs for $4027.50, upon which judgment was entered. The defendants then took out a writ of error.

Ten assignments of error, which were filed in these cases, alleged error in the refusal of the Court below to admit certain evidence offered by the plaintiff, and in the charge of the Court. The records contained no bill of exceptions.

Certiorari sur appeal, and' error to the Court of Quarter Sessions of Wyoming County. Information, under the Act of April 13th, 1867, P. L., p. 78, by Sarah L. Barnes against Wesley I).