Volume 2 — Sadler's Pennsylvania Reports

<p>The receipt of money by an attorney at law in part payment of a mortgage binds the holder thereof, if at the time he had authority to collect it.</p> <p>Whether under the evidence he had such authority is a question for the jury.</p> <p>Note. — A payment to an attorney binds the client if he has acted within the scope of his authority (Lehr’s Estate, 3 York Legal Record, 80) ; or if his acts have been ratified by the client (Henderson’s Appeal, 4 Pennyp. p. 229). The extent of his authority is a question of fact. In the absence of fraud a payment to the attorney of record will bind. McDonald v. Todd, 1 Grant Cas. 17; Bracken v. Pittsburg, 27 Pittsb. L. J. 202. Authority to collect interest upon loan will not give the right to collect the principal (Slaymaker v. Herr, 12 Lane. L. Rev. 342), though he was employed to do both in other cases, or his acts were ratified (Hines v. Herr, 13 Lane. L. Rev. 13). But the client is not bound where the evidence showed fraud between the attorney and the defendant (Bracken v. Pittsburg, 27 Pittsb. L. J. 202) ; or where the attorney gave a receipt for a personal debt to - the defendant, who received a receipt as payment of the debt to the client - (Chambers v. Miller, 7 Watts, 63) ; or where the defendant had been notified not to pay to the attorney (Weist v. Lee, 3 Yeates, 4.7) ; or where the-attorney had been employed in other proceedings, bnt not to collect (Bry- - xnt v. Hamlin, 3 Pa. Dist. R. 385).</p>

In February, 1881, William Miller issued execution upon a judgment which has been confessed to him by the officers of the Monocacy Furnace Company. That company had executed mortgages of all its real estate, certain leasehold estate, together with all and singular the corporate franchises, iron furnaces, buildings, improvements, ways, waters, water courses, railroads, mines, minerals, rights, liberties, privileges, and appurtenances thereupon belonging.

Henry Fry bequeathed a share of his estate in trust for his daughter Catharine Rapine. Edwin Shalter became trustee, and received, after deducting expenses, a trust fund of $3,-279.05. Shalter died in 1882, insolvent. James A. O’Reilly was appointed to fill the vacancy.

3, of Philadelphia County to review a judgment for defendant in an action of replevin. This action was brought by George T. Gravenstine, the administrator of Horace H. Walter, against Horace’s former guardian, Joseph M. Feger, to recover a certificate of $3,000 which had been placed in the guardian’s hands in trust for Horace. In 1879 Horace had died a minor, and Feger filed his account as guardian. At the audit Gravenstine appeared and claimed the certificate.

The facts appear in the following portion of the charge of the •court below, by ILuusnman, J. : The action is brought by George J. Eckert and Rebecca G. Eckert his wife, for the use of Rebecca G. Eckert, against the Reading Oity Passenger Railway Company, to recover damages for an injury which she alleges she received through the carelessness and negligence of the defendant company.

Pleas of Berks County continuing in force a preliminary injunction restraining the laying of a street passenger railway track upon-the abutment of the Plarrisburg bridge in the city of Beading. The Perkiomen Avenue Passenger Bailway Company was incorporated with authority to construct a street railway from Harrisburg bridge along Penn street to Eleventh street, etc. It •accordingly laid its tracks, commencing, not at the foot of the bridge, but about 60 feet east therefrom.

James Cowperthwaite and Nancy Cowperthwaite were possessed of the land in controversy, each having paid a portion of the purchase money. James Cowperthwaite was indebted to the amount of about $16,000, for which judgments had been obtained which were liens on his share of the property.

<p>A woman’s husband cannot, sue for her personal estate after her decease, otherwise than as administrator.</p>

This controversy arose over a disputed boundary line between two tracts of land. Defendant had erected a fence in such a manner as to include, as plaintiff claimed, a strip of land 5% feet wide and 150 feet long which belonged to the latter; and this action was brought to recover possession of the same.

Tbe facts sufficiently appear in tbe opinion. Tbe widow is entitled to administer upon tbe estate of ber deceased bus-band; and, if sbe renounces, tbe register may select from tbe children or next of kin, preferring males to females; but tbe widow or next of kin, or both combined, cannot pass by one of tbe children or next of kin competent and willing to take tbe administration, and vest it in a stranger. McClellan’s Appeal, 16 Pa. 110; Brittain’s Appeal, 1 Am.

Bauer, M. D., from the Medical Registry. On the hearing of the rule, the depositions of Dr. Tyson, secretary of the medical faculty of the University of Pennsylvania were presented. Dr. Tyson testified that neither Dr. Bauer nor his diploma was examined by the medical faculty, but that the certificate was made by authority of the following resolution of the medical faculty: “November 17, 1881.

<p>Covanovan’s Appeal; Seguine’s Appeal; Walker’s Appeal.</p> <p>Appeals from a decree of the Common Pleas of Warren County distributing a fund produced by a sheriff’s sale.</p>

<p>Error to the Common Pleas of Warren County to review a judgment for plaintiffs in an action of trover.</p> <p>The facts of the case appear in the charge of the court below, which was as follows:</p> <p>This is an action of trover brought by H. A. Jamieson & Company, against the defendant, Morningstar, in which the plaintiffs claim that they are or were the OAvners of a buggy, the description of which has been given to you, and that in the spring of 1883, or thereabouts, the defendant took it and converted it to his own use.</p> <p>In this, as in most suits, there are some facts that are undisputed.</p> <p>The defendant was engaged, in the borough of Warren, in the business of manufacturing buggies and carriages. It would seem that he became involved and made an assignment of his property, in form, to Mr. Pickett; although, according to the testimony, it Avas really H. A. Jamieson & Company, and kept in the name of Pickett, in order to distinguish it from the other business of Jamieson & Company. There is no question but that this buggy passed to Mr. Pickett, Avith the other property. After the assignment there is no question of the fact that, by an arrangement between Mr. Morningstar, Mr. Pickett, and Mr. Eoss, the buggy Avas sold to Mr. Eoss and became his property, and the amount of $135 was fixed upon as the value of it, and the amount for which it was sold to Mr. Ross was credited to Mr. Morningstar. A short time after this, by an arrangement between Mr. Ross, Jamieson & Company, or Mr. Pickett, ■they agreed to take back the buggy. In the meanwhile it had been left at Mr. Hardenburg’s barn. They credited Mr. Ross with the amount, but it does not appear that it was ever charged back to Morningstar in any account. It remained in Tlarden■burg’s barn, as the plaintiffs say, until sometime in 1883, at which time, as they claim, the defendant wrongfully took it ■•and converted it to his own use. The defendant claims and introduces testimony to show that in point of fact the buggy came back into his possession in 1882. I do not see that this is of very much consequence in the case, except in so far as it bears on the credibility, or, rather, upon the recollection, of the witness as to the time. I do not see that it bears directly upon the question of the ownership of the buggy except in that way. There is no dispute as to the value of the property. It is in proof, on the part of the plaintiffs, that it is worth $135. If the plaintiffs are entitled to recover, if will be for $135, to which, by way of damages, may be added the interest from the time that Morningstar took it.</p> <p>The real question in the case is: Who owned this buggy? I have stated that it is undisputed that the title to the property became vested in Jamieson & Company, and that Morningstar was credited with it. It is alleged, however, on the part of the ■defendant, that, in the settlement that took place between the parties, this buggy was given up to Mr. Morningstar. Mr. Morningstar, if I remember his testimony aright, does not say that he was present at any such arrangement when the buggy was given up to him, or when it was agreed upon, but that it was left with Mr. Noyes, as his attorney, to arrange with Jamie-son & Company, and Mr. Noyes testifies that he has no recollection of what the arrangement was in regard to the buggy, except they had some difficulty and some talk about it Mr. Jamie-son and Mr. Pickett claim that in the settlement that took place, ■although at first they were not willing to take the buggy, it was finally agreed that they should take it, and it was left precisely as it was before, and receipts passed and the whole thing ended.</p> <p>Of course, if Jamieson and Pickett are correct, then they are entitled to recover. If, in point of fact, you find the evidence to show that there was really an agreement by which Morningstar was to ba.ve the buggy in the settlement, then, of course, the plaintiffs vrould not be entitled to recover. And we-say to you, the burden of proof is upon Morningstar, if you find the title became vested in Jamieson & Company.</p> <p>Upon the part of Morningstar, it is alleged that the assignment of the property that followed the settlement between the parties, about September 12, 1882, bears evidence that this property was transferred to him, Morningstar. On the other hand, the plaintiffs say that it was not included in the assignment, simply from the fact that the title had already passed when Morningstar had credit for it upon the books, and that the credit still, remained to him upon the books. If this is the fact, of course Morningstar ought not to hold the property, and plaintiffs ought to recover. This is all we can say to you. The simple question of fact for you to remember is, whether, in the settlement that finally took place between Jamieson & Company and Morningstar, the ownership of the buggy passed by agreement to Morningstar.</p> <p>Verdict and judgment having passed for plaintiffs, defendant brought error.</p>

Pleas of Lackawanna County sustaining exceptions to an auditor’s report distributing the fund arising from a sheriff’s sale of property. Elizabeth Brown had two judgments in the court of common pleas of Luzerne county against Abel Barker, being Nos. 28G and 287, August term, 1868, both entered on the 21st of July, 1868. May 5, 1870, Mrs. Brown executed to Winton an assignment of a portion of her judgment No. 287, August term, 1868, amounting to $2,158.11.

<p>Error to the Common Pleas of Northampton County to review a judgment of nonsuit, in an action to recover damages for the death of plaintiff’s husband, resulting from the alleged negligence of defendant.</p>

At September session, 1879, S. Mead and others petitioned for a road through his farm and the farm of Peter White.

<p>A clause in a will, “I give and devise all my real estate to my son Charles in fee, subject to the life estate herein given to his mother,” — construed; and held, to vest all the title to the land in the mother and son; and that a deed in which mother and son joined would vest a good title in the grantee.</p>

Tbe facts of the case appear in tbe charge of tbe court below which was as follows: This is an action by E. T. Page against tbe Imperial Insurance Company of London. Tbe plaintiff seeks to recover $1,200 and interest from tbe time it is allowable under the policy. The undisputed evidence in the case shows that O. A. Seeley, on the 21st of April, 1880, took a contract for a tract of land in Colley toAvnship, Sullivan county, containing about 640 acres.

This action was brought upon the following bond: “Know all men by these presents that I, Jacob Depew, of the township of Eallstown, in the county of Wyoming and state of Pennsylvania, am held and firmly bound unto Solomon Depew, of the township of Madison, county of Luzerne and state aforesaid in the sum of $3,3S3, lawful money of tbe United States, to be paid to tbe said Solomon Depew, bis executors, administrators, or assigns, for wliicb payment, well and truly to be made,…

judgment for plaintiffs in an action of ejectment. Held: the land extended, and the acceptance and remaining in possession by Mrs. Wells, does not estop her in her right to recover the land. Therefore, we say to you in this case that the plaintiff is entitled to recover this land, provided the jury find that the mortgage has been fully paid.

On September 6, 1883, a petition was presented to the several courts of Bradford county asking that a rule of the said several courts be adopted, whereby on the first Monday of December, annually,… Held: upon the court itself, until abrogated. The power to make such rules is, sub modo, a legislative power; and its exercise rests upon a sound discretion. This discretion is not a subject of review by an appellate court. Mylin’s Estate, 7 Watts, 64; Gannon v. Fritz, 79 Pa. 303.

The facts sufficiently appear in the charge below by Sitter^ P. J., which was as follows: This is an action of debt brought by Daniel ITanldnson against the Lebanon Mutual Dire Insurance Company, the defendant, to recover for a loss by fire, which he alleges he has sustained and which he claims the defendant company agreed to make good to him.

4, of Philadelphia County to review a judgment dismissing exceptions to a magistrate’s record. This was a proceeding under the landlord and tenant act of December 14, 1863, to recover possession of premises of which Minnie Phelps was lessee. The magistrate rendered judgment against the tenant, and she sued out a writ of certiorari to remove the proceedings to the court of common pleas, No. 4, of Philadelphia county, for review.

E. W. Eussell, who was tbe administrator of the estate of Jacob DeWitt, sold lands of the deceased, by order of the court, to his brother, C. S. Russell, for the sum of $4,950. C. S. Russell gave his individual note to the administrator for the amount of this sale. The following indorsements appear upon the back of the note: Received, January 22, 1875, $5,023.63, preferred claim as allowed by Towanda. Court to C. S. Russell, to apply on within. M. W, DeWitt, Administrator.

7, of Philadelphia County. This was a proceeding under tire act of March 21, 1772, commenced by James Gallagher, administrator de bonis non cum. testamento annexo of Francis Gallagher, deceased, to require Daniel D. Mullin to remove from and leave certain premises which he had leased from the estate of Gallagher.

1, of Philadelphia County lo review a judgment entered for want of sufficient affidavit of defense. This action was brought upon the following due bill and promissory note: Phila., April 7, 1882- Due to Charles A. Rutter, the sum of one hundred dollars on account of patents, payable on demand. $100. R. P. .Garsed. $350. Phila., April 27, 1885.

The following is the history of the case as given on behalf of the appellees: Ellwood P. Wright and William C. Hutchinson issued attachment executions on judgments aggregating $2,164.71 attaching in the hands of Charles C. Baker, George W. Baker, and Caroline C. Haman, executors of the last will and testament of George Baker, deceased, the legacies, moneys, etc., belonging to George W. Baker and Abram Baker in said estate.

1, of Philadelphia County to review a judgment for plaintiff in an action of assumpsit.- The facts of the case appear in the charge of the court below which was by Peirce, J., as follows: This is an action brought by the plaintiff, William George Hillegass, against his brother, Horace Noland Hillegass, to recover a sum of money which it was alleged the defendant promised to pay to the children of their mother after the death of their mother.

<p>A creditor who signs an agreement for an extension of time to an insolvent firm, for the payment of its debts, containing the condition that -it. 3hall not be binding unless signed by all the creditors of $100 and upwards, is at liberty, so far as the agreement is concerned, to assert any rights which he possesses against the firm, unless the provision is complied with.</p> <p>In such case where trustees have been appointed under the terms of the-agreement and the assets of the firm assigned to them for the benefit of creditors, if neither the agreement nor the assignment are recorded, they are void, by virtue of § 5 of th act of 1818, as against any creditor who-chooses to assert their invalidity.</p> <p>A silent acquiescence in the acts of the trustee so appointed, for a period of five years, will not estop a creditor from asserting his rights if there is nothing to show that he participated in the appointment of the-trustees or in their action; or even uttered a word or did an act, misleading other creditors to the belief that he had abandoned or intended to-abandon any legal rights which he possessed as a creditor.</p> <p>Note. — The creditor would be bound, though all did not join, where-there was no condition in the agreement to the contrary. Laird v. Campbell, 92 Pa. 470. Such agreements rest on a sufficient consideration, resting on the forbearance of all the creditors. Bright v. Murray, 1 Legal Chronicle, 19, 2 Legal Opinion, 170.</p>

Fulmer and Wagener entered into negotiations with Leibert for the purchase of his farm situated in Plainfield township. Leibert offered to sell for $12,972.77. After considerable talk and the submission of several propositions, all of which were rejected, he agreed to take the sum of $12,000 as the price of the farm, and the papers were accordingly executed. Subsequently he demanded the further sum of $932.77 from the vendees, claiming that they had agreed to pay such sum.

3, of Philadelphia County to recover a judgment rendered non obstante veredicto, in an action of assumpsit. This action was brought to recover balance of salary due to plaintiff up to the time of suit brought, under a contract of employment as master brewer in a brewery. Defendant pleaded? non assumpsit, payment with leave, and set-off; and offered evidence to prove that plaintiff improperly performed his duties5 and was discharged.

<p>Error to the Common Pleas, No. 4, of Philadelphia County to review a judgment for plaintiff in an action for damages for personal injuries.</p> <p>The facts sufficiently appear in the charge of the trial judge, Thayer, J., a portion of which is as follows:</p> <p>The accident to the plaintiff, James W. Lauderbach, which lias been the subject of inquiry in this case, occurred on July 26, 1880, when he was a passenger in a car of the Ilestonvillc, Mantua, & Fail-mount Passenger Kailway Company while it was passing along Callowhill street near Twenty-Third street. The defendant is the People’s Passenger Kailway Company.</p> <p>It appears from the evidence that at the point where the accident happened the railway tracks of the two companies approach, within 11% inches of each other, and that 20 inches of space between the tracks is required to enable two cars to pass-at any one time, without incurring the risk of collision.</p> <p>The accident resulted in a severe and painful injury to the plaintiff. Hi's arm was obliquely broken above the elbow, and the forearm bruised and crushed. It further appears that he-was attended by surgeons and physicians; that he ultimately recovered from the immediate effects of the injury, and he is. now in the condition he presents in court.</p> <p>The plaintiff alleges that the accident was due solely to the' negligence of the defendant, and that it alone is responsible for' the consequences.</p> <p>There are certain well-settled principles of law applicable to-this case which, although very familiar to lawyers, are not, perhaps, so well known to you; and it is, therefore, necessary in the discharge of my duty that I should refer to them. The first o f these principles is, that every person and every corporation is. responsible for the consequences of his or its own negligence, if an injury is ocasioned by that negligence. The second principle is, that the burden of proving negligence is thrown upon the one who asserts it, and that it must be satisfactorily established, before a jury can find a verdict against a defendant.. The third principle is, that, if a plaintiff, injured by an accident, has himself been guilty of negligence which contributed in any degree to the injury, the defendant is not responsible for the consequences of that accident;1 The reason of this rule of law is, that where a plaintiff has been himself partly to blame for an injury he has received, he cannot justly ask a defendant, whom he alleges was also guilty' of negligence, to compensate him for an injury which was partly the result of his own fault.</p> <p>In a case where the plaintiff and defendant are both to blame for an aceident, there is no remedy for an injury occasioned by negligence; that is, where there is negligence on both sides,. or what is termed mutual negligence, there can be no recovery against a defendant.</p> <p>It is also a well-settled rule of law, that, where an accident occurs in the course of the transaction of the business of two railroad companies, and both figure as actors or participants in the circumstances surrounding its occurrence, a passenger, injured while in one of their cars, must bring his action for indemnity and compensation against the company carrying him as a passenger, if the accident, whereby he received his injury, was occasioned by the negligence of that company.</p> <p>The same rule applies if the accident was the result of the negligence of the company carrying him as a passenger, even if the other company was guilty of negligence. If, however, the accident was alone due to the negligence of the other company, and not through any negligence of the company carrying him as a passenger, then the other or noncarrying company is the responsible party, always supposing that the passenger was not himself guilty of any negligence contributing to the accident.</p> <p>To apply these principles of law to this ease, in order that you may be fully enabled to comprehend them: If this accident was occasioned solely by the negligence of the Nace & Vine Street Company, or in combination with negligence on the part of the defendant company, the plaintiff cannot recover in this action. In other words, if both companies were to blame for the accident, the plaintiff must bring his action against the company running the car in which he was a passenger at the time of the accident. If, however, the Nace & Vine Street Company was not to blame for the accident, and the plaintiff was not guilty of any negligence contributing to the accident, but the defendant was alone guilty of negligence, the plaintiff would be entitled to recover in this action.</p> <p>It will, therefore, be observed that there are three points which require to be determined, for the proper decision of the questions involved in this case, viz.: (1) Was this accident due to any negligence on the -part of the plaintiff ? If it was, he cannot recover. (2) Was it due to any negligence on the part ■of the Nace & Vine Street Company? If it was, he cannot recover. (3) Was it due to the negligence of the defendant? If it was not, he cannot recover. If it was, he can recover; provided, the negligence was solely on the part of that company, and theie was no negligence on the part of the Nace & Vine Street Company; and also provided that the accident was not in any degree occasioned by the negligence of the plaintiff.</p> <p>Verdict and judgment having passed for plaintiff defendant brought error.</p> <p>If a passenger puts himself out of place and in a place of danger, and is injured as the result, this is damnum absque injuria, and he cannot recover. Pennsylvania R. Co. v. Langdon, 92 Pa. 21, 37 Am. Rep. 651.</p> <p>The following are cases in which the question .of contributory negligence has been considered: Todd v. Old Colony & F. River R. Co. 7 Allen, 207, 83 Am. Dec. 679; Indianapolis & C. R. Co. v. Rutherford, 29 Ind. 82, 92 Am. Dec. 336; Ward v. Central Park, N. & E. River R. Co. 1 Jones & S. 396; Clark v. Eighth Ave. R. Co. 36 N. Y. 135, 93 Am. Dec. 495; Solomon v. Central Park, N. & E. River R. Co. 1 Sweeny, 301; Willis v. Long Island R. Co. 32 Barb. 399; Hickey v. Boston & L. R. Co. 14 Allen, 429; Quinn v. Illinois C. R. Co. 51 111. 498; Baltimore City Pass. R. Co. v. Wilkinson, 30 Md. 225; Houston & T. C. R. Co. v. Clemmons, 55 Tex. 88, 40 Am. Rep. 799; Baltimore & P. R. Co. v. Jones, 95 H. S. 443, 24 L. ed. 508.</p> <p>Where an accident is the result of mutual negligence by two companies, the noncarrying company is not liable. Lockhart v. Lichtenthaler, 46 Pa. 151; Philadelphia & R. R. Co. v. Boyer, 97 Pa. 100.</p>

2, of Philadelphia County, in equity. The facts of the case appear in the opinion of the court below which was by Hare, J., as follows: Williams obtained a certificate of stock, with a power of attorney in blank from the plaintiffs, by fraudulent pretenses, and pledged it to Linnard as collateral security for a pre-existing debt, in consideration of an agreement on his part to accept promissory notes at ten, sixty, and ninety days for the amount due, and to forbear suit…

2, of Philadelphia County distributing a fund made by a sheriff’s sale under a judgment. This case arises out of the distribution of a fund produced by a sheriff’s sale of the property of Alexander S. Bunting, under a judgment obtained by the Equity Building & Loan Association. Bunting was a member of the association and the owner of 20 shares of stock.

2, of Philadelphia County to review a judgment for plaintiff upon 'a policy of life insurance. Held: that instructions were erroneous which permitted a jury to find that these facts were equivalent to actual delivery of the policy and payment of the premium. Hoyt v. Mutual Ben. L. Ins. Co. 98 Mass. 539. See also Trask v. State F. & M. Ins. Co. 29 Pa. 198, 12 Am.

<p>If a married woman lias a separate estate not obtained from her husband, and buys property on credit, given her by reason of that separate estate, she may hold it as her own against her husband’s creditors.</p> <p>Note. — .See notes to Gregg v. George, 3 Sad. Rép. 622, and Tibbins V. Jones, 2 Sad. Rep. 526.</p>

8, of Philadelphia County to review a judgment for plaintiff in an action of assumpsit.

4, of Philadelphia Couuty to review a judgment entered for want of a sufficient affidavit of defense in an action of debt upon a bond for costs incurred in a reference. Kase brought an action of assumpsit against the Danville, Hazleton, & Wilkesbarre Railroad Company. Tbe parties to tbe suit agreed to refer it to Geo.

3, of Philadelphia County to review a judgment for the Commonwealth, plaintiff, upon a case stated in the nature of a special verdict, for… Held: or exhibited, the sum of $50; and the price of a menagerie license shall be in the city and county of Philadelphia, $200; in the county of Allegheny, $100; and for each and every other county of this commonwealth, within the bounds of which such menagerie may be exhibited or shown, the sum of $30; such licenses shall be granted…

2, of Philadelphia County to review a judgment for plaintiff in a feigned issue to try title to personal property sold on execution. Held: that the land was subject to levy and sale on behalf of a judgment creditor of her husband. Even between husband and wife, it is doubtful if this would have been sufficient setting apart to justify the claim of the wife against a solvent husband.

4, of Philadelphia County to review a judgment for plaintiffs in an action on the case for damages. Plaintiffs had a quantity of rags spread out in their field, near defendant’s railroad. The rags caught fire and were damaged. The plaintiffs thereupon brought this action.

An indictment was found against the defendants in the court of quarter sessions of Warren county. A rule to show cause-was granted, which was afterwards made absolute. 1 Central' Reporter, 663. The district attorney of Warren county then made the above-application.

4, of Philadelphia County refusing to grant an injunction to restrain the execution of a judgment. This was a bill in equity and motion for injunction to restrain execution, and open judgment at law, and let defendant into a defense, filed by John Maher against E. Gove and the sheriff of Philadelphia, George DeB. Keim.

Pleas, No. 1, of Philadelphia County to review a judgment of nonsuit in an action of assumpsit for alleged breach of contract. Plaintiff alleged that he agreed to go from Philadelphia to Washington, and open business as defendant’s agent, upon the terms stated in a memorandum written by an officer of defendant at the time during an interview at the company’s office in Hartford, Connecticut, in the following language: Memorandum.

Certiorari of tbe City of Philadelphia to review a decree of the Court of Quarter Sessions, dismissing exceptions to a report of a jury assessing damages to the Philadelphia, Wilmington, & Baltimore Railroad Company, and confirming said report. An ordinance of the city of Philadelphia of May 8, 1883, directed the opening of 15th street from Washington avenue to Carpenter street.

These proceedings arose in the orphans’ court of Philadelphia county upon the audit of the account of John Lowber Welsh, ancillary administrator cum, testamento annexo of the estate of Francesca del Valie, deceased. The decedent had her domicil in the island of Chiba.

2, of Pbiladelpbia County to review tbe discharge of a rule for judgment for want of a sufficient affidavit of defense, in an action of assumpsit on a promissory note. Summons in case was issued January 2, 1885. January 24, 1885, affidavit of defense filed. February 3, 1885, rule for judgment for want of a sufficient affidavit of defense. April 1J, 1885, supplemental affidavit of defense filed. May 23, 1885, additional affidavit of defense filed.

Certiorari sur appeal from a decree of the Common Pleas, No. 3, of Philadelphia County in equity. This action was commenced by the filing of a bill for specific performance of a contract for the sale and purchase of a tract of land. It was brought by the vendor, the People’s Savings Bank of Pittsburgh, against the vendee, John Alexander.

<p>A declaration in an action on the case claimed damages for failure to safely carry and deliver certain perishable goods, in a reasonable time, according to promise, whereby they were wholly spoiled and lost. The plea alleged a condition in the bill of lading that the carrier should not be liable for damages to perishable property occasioned by delay of any kind; and that the goods were carried and ready for delivery in a reasonable time, but that the damage occurred by reason of their perishable nature. The replication denied that the goods were ready for delivery in a reasonable time, or that the damages were occasioned by reason of the perishable nature of the goods, and alleged that the negligence of the defendant caused the loss. A demurrer was filed by the defendant. Held, that judgment should be entered for the plaintiff on the pleadings.</p>

3, of Philadelphia County to review a judgment entered for want of an affidavit of defense. The plaintiff below, defendant in error, brought an action on the case, November 13, 1885, on an instrument of writing, written in German, a translation of which is as follows: No. 302. Philadelphia, Aug. 11, 1884.

4, of Philadelphia County to review a judgment for plaintiff in an action upon a promis-. sory note. This suit was brought on the following note: $6,892.85. Philadelphia, August 25, 1879. Eive years after date we promise to pay to the order of Edward L. Eenimore six thousand eight hundred and ninety-two-dollars and eighty-five cents, without defalcation, for value-received. Interest on said sum to be paid on demand in weekly instalments. Wilson & Eenimore.

4, of Philadelphia County to review a judgment sustaining a demurrer to the return to an alternative writ of mandamus, and awarding a writ of peremptory mandamus.

3, of Philadelphia County to-review a judgment for defendant on demurrer in an action of assumpsit for refusal to pay the amount of a… Held: “Where an owner of real estate, about to erect a building thereon, causes plans and specifications to be prepared, and then invites masons, carpenters, and others to submit offers of the terms, prices, etc., at which they will perform the work, the owner is not bound (in the absence of an express pledge to that effect on his part) to…

On March 14, 1872, a judgment was entered against Thomas Trine. Under this judgment certain real estate of defendant was sold by the sheriff to J. W. Peck for $3,010. Peck failed to comply with his bid. Several other judgments were entered against Trine, which were liens on this real estate. Subsequently the land was again sold by the sheriff and purchased by the same party as before for $1,200. This bid was complied with.

The facts appear in the charge of the court below as follows: This is an action on the case brought by John Welsh against the Lehigh & Wilkesbarre Coal Company to recover damages for personal injury to plaintiff, alleged to have resulted from the negligence of the defendant. . . . The plaintiff in this case was employed as a laborer by a man named Wasley, in the sinking of what is known as an air shaft at the Stanton mines.

Certiorari sur appeal from a decree of the Common Pleas of Berks County distributing the proceeds of a sheriff’s sale of personal property. Prank S. Livingood rented to Z. P. Gresh a farm and certain limekilns and stone quarries in Berks county.

Certiorari sur appeal from a decree of the Common Pleas of Perks County distributing the proceeds of a sheriffs sale of personal property. This appeal was taken from the same decree from which the preceding appeal was taken. The appellant Hartranft held a judgment against Z. F. Gresh. He caused an execution to be issued, and the personal property of Gresh, situated upon certain leased premises, was sold, and the proceeds paid into court for distribution.

<p>The evidence adduced to show that an attaching creditor had actual notice, before issuing his attachment, that the property had been assigned, reviewed, and held wholly insufficient.</p>

John (x. Wood brought this action against Albert J. Allabach and others to recover possession of property which he had purchased at sheriff’s sale. Plaintiff showed that the title to the premises had been in Edward W. Allabach; that Allabach had mortgaged them to Charles Lehman to secure a loan of money; that plaintiff and another bought this mortgage, foreclosed it, and at sheriff’s sale of the land plaintiff purchased it. After showing this title he rested.

The following are portions of the charge of the court below, •delivered by Pice, P. J.: In 1869 Jacob Bilheimer, who was the owner of this land, made his will. He died in June, 1869, and in October, 1869, letters testamentary issued to his executors.

<p>Error to the Common Pleas of Luzerne County to review a judgment in an action to recover damages for personal injuries.</p> <p>The following is the opinion of the court below, upon a rule to show cause wby the nonsuit should not be taken off:</p> <p>The plaintiff brought this action to recover damages for personal injuries received by him in the mines of the defendant. The accident which caused the- injury was the result of the breaking of a drawhead or coupling between two loaded coal ears, as they were ascending the slope up which all the coal from these mines was taken. One of the cars thus detached ran very rapidly down the slope back into the mines. Near the bottom of the slope it left the track, throwing its contents to the ground. Pieces of coal thus scattered struck the plaintiff, inflicting upon him personal injuries of a serious character which laid him up for several months, and which, it is alleged, have permanently disabled him for active labor.</p> <p>At the conclusion of the trial the defendant asked for a compulsory nonsuit, on the ground that the plaintiff had failed to produce any such evidence of negligence on its part as would justify the submission of the case to the jury. TTpon such consideration as we are able to give tbe question, thus presented at the time, we granted the motion for a nonsuit, and at the same time entered the present rule.</p> <p>The plaintiff is a blacksmith, and as such had been employed in and about these mines for ten years. During all this time it had been his habit to enter and leave the mines by the slope. Upon the day of the accident he had been engaged in putting shoes on some of the mules at work in different parts or passages of the mine, and while near the foot of the slope awaiting a movement of the cars which would permit him to reach the man-way and go out of the mines, he met with the accident which we have already described.</p> <p>It will relieve us of the consideration of mueh irrelevant learning on the general subject of negligence to bear in mind at the outset that the plaintiff was an employee of the defendant. The legal relation existing between the parties was that of master and servant. It follows from this, of course, that the law of negligence and the evidence of negligence must have reference to this relation.</p> <p>What, then, in its general statement, is the rule of the law as to the liability of tbe employer for injuries to the employee while engaged in his customary employment by reason of an accident ? Judge Redeield, in his work on Railroads, p. 545, 5th ed., quotes with approval the language of the court in Dvnen v. Leach, 26 L. J. Exch. N. S. 221, as follows: “Where an injury happens to a servant in the use of machinery, in the course of his employment, of the nature of which he is as much aware as his master, and the use of which is the proximate cause of the injury, the servant cannot recover, . . . there being no evidence of any personal negligence on his part conducing to the injury. Nor does it vary the case that the master has in use in his works an engine or machine less safe than some other which is in general use; or that there was another and safer mode of doing the business which had been discarded by his orders.”</p> <p>The most recent cases in our own state on this subject recognize and approve the same doctrine. In Northern C. R. Co. v. Husson, 13 W. N. 0. 361, our supreme court says: “We cannot agree that the risk to which an employer subjects his employees suffices to impose liability upon the former, as being extraordinary in character, merely because the injury in a partictilar case might possibly have been prevented by some different device. Almost all accidents conld be avoided if the special manner of their occurrence could be foreseen, etc.”</p> <p>In Pittsburgh & C. R. Co. v. Sentmever, 92 Pa. 280, 37 Am. Rep. 684, the language of the court is as follows: “The master’s liability arises from the fact that he subjects his servant to dangers which in good faith he ought to provide against; but he is not responsible for those dangers to which the servant voluntarily subjects himself, though he does so without carelessness or breach of duty.”</p> <p>In Payne v. Reese, 100 Pa. 301, it was said that “an employer is not bound to furnish for his workmen the safest machinery, nor to provide the best methods for its operation in order to save himself from responsibility for accidents resulting from its use. If the machinery be of an ordinary character and such as can, with reasonable care, be used without danger to the employee, it is all that can be required from the employer ; this is the limit of his responsibility and the sum total of his duty.”</p> <p>In the case before us there was an entire absence of proof that the machinery and mining appliances were not of an ordinarily safe character. Taken in the most favorable light for the plaintiff, the evidence showed no more than this: That other and safer methods for raising the coal might have been employed, and that, if such methods had been adopted, probably the accident would not have happened.</p> <p>Whether the injury sustained by the plaintiff is to be traced, as to the breaking of the drawhead, its proximate cause, to the bad construction of the landing at the top of the slope; to a defect in the material or workmanship of the drawhead itself; or to the want of brakes or fans, so arranged that they might have stopped the runaway car before it reached the point where the plaintiff was standing, — it is not necessary, under the circumstances of the case, to decide, for, as we have said, there was no evidence that in any of the particulars named the machinery was not fairly and ordinarily safe; and furthermore, there was very distinct and affirmative evidence that the plaintiff, from his ten years’ employment at these mines, was entirely familiar with all the arrangements and machinery for raising the coal, as well as with the methods of entrance and exit to and from the mines themselves, usually adopted by all the employees. . ... In the case before us it was shown that not less than 100 men were employed in the mines operated by the Gaylord Coal Company. Four hundred and forty cars, upon an average, were hoisted up this slope every working day. That the manner of bringing the coal up the slope was regarded as fairly and ordinarily safe is-shown by the fact that no complaint had ever been made by any of the employees, as well as by the further fact that no accident, resulting in personal injury to an employee, prior to the one in-question, had ever hajopened. Nor was there any evidence im the case to show that the drawhead or coupling which broke was. constructed of defective material, or by an incompetent workman. The alterations made at the head of the slope, and the-precautionary measures adopted by the defendant to stop runaway cars after the accident, while they might be cumulative evidence of negligence in a case where it was shown that the existing-appliances were not ordinarily safe, cannot substantively and of' themselves be held to establish negligence on the part of the employer. Science and experience are constantly suggesting improved methods and greater safeguards in conducting business; but to hold that their adoption implies previous want of ordinary-care and is tantamount to proof of previous negligence would befo go further than any decision of our courts has yet gone.</p> <p>As to the duty of the court to grant compulsory nonsuits, we-refer to the following cases: Mad River & L. E. R. Oo. v. Barber, 5 Ohio St.- 567, 67 Am. Dec. 312, where it is said that what constitutes negligence in any particular relation is ordinarily a mixed question of law and fact; but what duty the law implies as-incident to any particular relation or employment is always a. question of law for the court.</p> <p>Philadelphia & R. R. Oo. v. Schertle, 97 Pa. 450. “Where- . . . there is no such evidence of negligence, of at most a scintilla, it is the duty of the court to withdraw the case from the-jury.” Northern O. R. Oo. v. ITusson, 13 W. N. C. 361. Where there is no evidence that the risk run by the decedent was extraordinary in its nature, it is error to submit that question to the-jury. See also Xing v. Boston & W. R. Corp. 9 Gush. 112.</p> <p>The rule to show caiise why the nonsuit shall not be taken off' is discharged.</p> <p>Plaintiff brought error.</p> <p>In view of the facts that the court has held that “a master who employs a servant in dangerous work is bound to take all reasonable precautions for his safety,” and that the testimony offered on behalf of the plaintiff in the trial of the cause below shows, not only an utter disregard of the servant’s safety, but a failure to adopt those appliances in common use about mines, we feel justified in saying that the court erred in directing a judgment of nonsuit to be entered, and in refusing to take it off. Weger v. Pennsylvania B. Co. 55 Pa. 460; O’Donnell v. Allegheny Valley E. Co. 59 Pa. 239, 98 Am. Dec. 336; Ardesco Oil Co. v. Gilson, 63 Pa. 146; Sykes v. Packer, 11 W. N. 0. 496 ; Johnson v. Bruner, 61 Pa. 61,100 Am. Dec. 613; Oak Bridge Coal Co. v. Eeed, 5 W. N. C. 3.</p> <p>A different degree of care is required where there is reason to apprehend danger, from that which is necessary where none is expected. Pennsylvania E. Co. v. Ogier, 35 Pa. 60, 78 Am. Dec. 322.</p> <p>The master is bound to maintain suitable instrumentalities for the duties required of his servants; and, if he does not, he is liable for injuries for his neglect. Patterson v. Pittsburg & C. E. Co. 76 Pa. 390, 18 Am. Eep. 412. See Snow v. Housatonic E. Co. 8 Allen, 441, 85 Am. Dec. 720; Johnson v. Bruner, 61 Pa. 61, 100 Am. Dec. 613; Caldwell v. Brown, 53 Pa. 453; Brazier v. Pennsylvania E. Co. 3S Pa. 104, 80 Am. Dec. 467.</p> <p>It is the duty of every employer to exercise reasonable care in providing his laborers with safe machinery, suitable tools and appliances, adapted to the uses for which they are designed. Mullan v. Philadelphia & S. Mail S. S. Co. 78 Pa. 25, 21 Am. Eep. 2; Oak Bridge Coal Co. v. Eeed, 5 W. N. C. 3.</p> <p>If, in view of all the circumstances, the master ought to have known of and guarded against the danger, he is liable for all the consequences of his neglect. Addison, Torts, § 254, and notes; Noyes v. Smith, 28 Vt. 59, 65 Am. Dec. 222; O’Donnell v. Allegheny Valley E. Co. 59 Pa. 239, 98 Am. Dec. 336.</p> <p>A railroad company is bound to exercise reasonable care in procuring good and strong brake-chains and in maintaining and repairing them; and will be liable in case of the death of an employee, occasioned by a failure to perform its duty in this respect. Philadelphia & E. E. Co. v. Agnew, 11 W. N. C. 394; Bessex v. Chicago & N. W. E. Co. 45 Wis. 477; Eyan v. Bowler, 24 N. T. 410, 82 Am. Dec. 315; Laning v. New York C. E. Co. 49 N. Y. 521, 10 Am. Eep. 417; Empire T'ransp. Co. v. Wamsutta Oil Eef. & M. Co. 63 Pa. 17, 3 Am. Eep. 515; Sullivan v. Philadelphia & E. E. Co. 30 Pa. 239, 72 Am. Dec. 698.</p> <p>Great clanger demands higher vigilance and more efficient means to secure safety. Erankford & B. Turnp. Co. v. Philadelphia & T. E. Co. 54 Pa. 350, 93 Am. Dec. 708; West Chester & P. E. Co. v. McElwee, 67 Pa. 314.</p> <p>But where the measure of duty is not unvarying; where, under some circumstances, a higher degree of care is demanded than under others; where both the duty and the extent of its performance are to be ascertained as facts, — a jury alone can determine what is negligence and whether it has been proved. West Chester & P. E. Co. v. McElwee, 67 Pa. 315; McCully v. Clarke, 40 Pa. 399, 80 Am. Dec. 584; Citizens’ Ins. Co. v. Marsh, 41 Pa. 386; North Pennsylvania E. Co. v. Heileman, 49 Pa. 60, 88 Am. Dec. 482; Pittsburg & 0. E. Co. v. McOlurg, 56 Pa. 295; Glassey v. Hestonville, M. & E. Pass. E. Co-. 57 Pa. 172; Pennsylvania E. Co. v. Barnett, 59 Pa. 259, 98 Am. Dec. 346; Johnson v. Bruner, 61 Pa. 58, 100 Am. Dec. 613; Johnson v. West Chester & P. E. Co. 70 Pa. 357; Kay v. Pennsylvania E. Co. 65 Pa. 273, 3 Am. Eep. 628.</p> <p>The question as to whether due care was exercised by the defendant is a pure question of fact for the jury. Oak Bridge Coal Co. v. Eeed, 5 W. N. 0- 3; Pennsylvania E. Co. v. Henderson, 51 Pa. 315; West Chester & P. E. Co. v. McElwee, 67 Pa. 311; Erankford & B. Turnp. Co. v. Philadelphia & T. E- Co. 54 Pa. 350, 93 Am. Dec. 708; Landreth v. American S. S. Co. 11 W. N. C. 416; Pennsylvania E. Co. v. White, 88 Pa. 333; Philadelphia & E. E. Co. v. Agnew, 11 W. N. C. 394; Holmes v. Watson, 29 Pa. 457.</p> <p>The employee is not bound to do more than raise a reasonable presumption of negligence on the part of the master. Wharton, Neg. § 428; Greenleaf v. Illinois 0. E. Co. 29 Iowa, 14, 4 Am. Eep. 181.</p> <p>In an action for negligence, if the plaintiff makes out a prima facie case, the burden is on the defendant to prove care, and thus establish negligence in the plaintiff. Pennsylvania Canal Co. v. Bentley, 66 Pa. 30.</p> <p>But the very nature of the accident may, of itself and through the presumptions it carries, supply the required proof. Wharton, Neg. § 321.</p> <p>Pummell v. Dilworth P. & Go. Ill Pa. 343,1 Cent. Pep. 905, 2 Atl. 355, 363, is directly and expressly decisive of this case.</p> <p>In Pittsburgh & O. P. Oo. v. Sentmeyer, 92 Pa. 276, 37 Am. Pep. 684, Judge Gordon says: “Sentmeyer had been for several months previous to the accident employed as flagman on one of the trains of this road, and therefore had, or ought to have had, knowledge of the height of the cars used upon it, and also of the height of this bridge. These'were matters which addressed themselves to his own observation, and, as we have already said, for the prudent exercise of that observation he was responsible.” To the same effect, Devitt v. Pacific P. Oo. 50 Mo. 302; and Frazier v. Pennsylvania P. Co. 38 Pa. Ill, 80 Am. Dee. 467.</p> <p>In the last case, Lowrie, Oh. J., says: “But, if the plaintiff knew that his conductor was habitually careless, and chose to continue in service with him, and did not inform the company of his known acts of carelessness and refuse to serve with him, he can have no claim against the company for injuries suffered from further carelessness, even if the company did also know.” See Beach, Contrib. Neg. p. 369; Mansfield Coal & Coke Co. v. Mc-Enery, 91 Pa. 185, 36 Am. Pep. 662.</p> <p>Where an employee has knowledge that machinery is defective and dangerous, and in the course of his employment continues to use it without notifying his employer of such defect and asking him to repair, he voluntarily accepts the risk, and cannot, in case of injury from such cause, recover damages therefor. Clarke v. Holmes, 7 Hurlst. & N. 937; Wharton, Neg. §§ 212, 217; Mad Piver & L. E. P. Co. v. Barber, 5 Ohio St. 541, 67 Am. Dec. 312; Priestley v. Fowler, 3 Mees. & W. 1.</p> <p>In Kelley v. Silver Springs Bleaching & Dyeing Co. 12 R. I. 112, 34 Am. Pep. 615, it is held that, where an employer has kept imperfect and unfenced machinery in use for a long time, and it has been safely used by his employees, he is not liable in damages for an injury to one of them, occasioned by its unfitness. Sullivan v. India Mfg. Co. 113 Mass. 396; Burke v. Witherbee, 98 N. T. 562; Hayden v. Smithville Mfg. Co. 29 Conn. 548; Hobbs v. Stauer, 62 Wis. 108; Schroeder v. Michigan Car Co. 56 Mich. 132, 22 N. W. 220. See Green & C. Street Pass. P. Co. v. Bresmer, 97 Pa. 106; Wharton, Neg. § 214; Murphy v. Crossan, 98 Pa. 497; Sykes v. Packer, 99 Pa, 468.</p>

Mrs. J. M. Mitchell was engaged in the manufacture and sale of certain specifics, and also in the use of certain processes for the preservation of meats, etc., under the name of the National Ozone… Held: that he could recover from Moss. If one, by his acts or silence or negligence, misleads another or effects a transaction whereby an innocent party suffers, the blamable party must bear the loss. Garrard v. Haddan, 67 Pa. 82, 5 Am. Pep. 412.

Appeals from a decree of the Orphans’ Court of Montgomery County making distribution of a decedent’s estate. Tbe history and facts of the case, as well as the points of law involved, fully appear in the following report of the auditor, Henry B. Garber: The decedent here, Abraham 0.

The facts appear in the following portions of the charge given in the court below by Pershing, P. J.: Philip Alspach, the plaintiff in 'this action, brought suit against Nicholas Seitzinger, in the lifetime of Seitzinger, to recover a balance alleged to be due him on two bills, the items constituting which were filed with his summons and declaration, one for $234.52 and the other for $227.18; and these two amounts he seeks to recover now at your hands, with interest.

Certiorari sur appeal from a decree of the Common Pleas of Schuylkill County in equity. William N. Baker filed the bill in this case against Benjamin M. Slobig, alleging that plaintiff and defendant entered into a copartnership January 1, 1875, under the firm name of W. N. Baker & Company, for the purpose of buying produce and merchandise in Union and adjoining counties; these goods to be shipped to Schuylkill county and there sold.

Pleas of Montgomery County, in equity. The complainant applied for a special injunction to restrain the Cheltenham & Willow Grove Turnpike Company from entering upon his lands for the purpose of… Held: that after having •once made a selection and located the road, it could not vary it. Little Miami B. Co. v. Naylor, 2 Ohio St. 235, 59 Am. Dec. 667; Louisville & N. Branch Turnp. Co. v. Nashville & K. Tump. Co. 2 Swan, 282.

Mark He Haven was the holder of a policy of insurance in the Mutual Eire Insurance Company of Montgomery county. The company insured, by virtue of a supplemental act passed February 14, 18 6 Y, against losses by storms or hurricanes. The material clause in the policy on which suit was brought is as follows: “Stock, crops, and farming implements, $1,200.” There was a hailstorm on May 22, 1883, and a field of standing and growing wheat was partially destroyed.

The bill in this case was filed by Mahlon R. Ambler against the Pennsylvania Schuylkill Yalley Railroad Company, praying for an injunction restraining the company from building an embankment for its tracks across a way which it alleged had been opened upon his farm, the building of which, it was alleged, would result in the closing of -the way. The following axe the facts as found by the master.

In 1875 Thomas H. Wentz furnished materials for the repair of a building of which the People’s Gas Light & Euel Company was the reputed owner. The materials were ordered by T. S. C. Lowe, and a mechanics’ lien was filed against the building. Lowe gave to Wentz his promissory note for $2,000, in payment, as the latter claimed, for this material. Upon this note $500 was subsequently paid, and the note renewed for $1,500.

The following petition was filed in the court below: The petition of the undersigned, William D. Seltzer, trustee, Tespectfully represents that under and by virtue of a writ of levari… Held: to pass a corporeal interest. Chicago & A. Oil & Min. Co. v. United States Petroleum Co. 57 Pa. 83. A lease, for three years, of the right to mine coal in the land of the lessor is a grant of an interest in the land, and not a mere license. Harlan v. Lehigh Coal & Nav. Co. 35 Pa. 287.

Appeals from a decree of the Common Pleas of Schuylkill County disposing of the proceeds of a sheriff’s sale under an execution. William H. Bright caused a fieri facias to be issued under a judgment against Lewis J. Osterman, and the defendant’s personal property was levied upon.

<p>Error to tfie Common Pleas of Northumberland County to review a judgment discharging a rule t® sfiow cause why a judgment should not be stricken from tfie records.</p> <p>The facts are stated by Rockefeller, J., in his opinion in the court below as follows:</p> <p>I have come to the conclusion that there are no grounds disclosed by the evidence that would warrant the court in striking: off this judgment. It is admitted by counsel for both parties-“that tire amount of money lent and advanced on the judgment, by Margaret M. Painter, the plaintiff therein, was $800, by her check drawn March 5, 1884, on the Lewisburg National Bank,, against her separate and individual account therein, to the order of Conrad Weaver, one of the defendants in the said judgment,, and which said check, upon the indorsement of the said Conrad Weaver, was subsequently paid by the said bank to the said Conrad Weaver upon presentation, and thereupon charged by the said bank against the said separate account of the said Margaret M. Painter, of which the following is a true copy, viz:</p> <p>No. —. Turbotville, Pa., 5th March, 1884.</p> <p>Lewisburg National Bank, Lewisburg, Pa.:</p> <p>Pay to the order of Conrad Weaver eight hundred, t°ott dollars.</p> <p>$800. Margaret M. Painter,</p> <p>and indorsed “Conrad Weaver.”</p> <p>Mrs. Margaret M. Painter is, and was at the time of the-execution of the judgment note in question and the giving of the check, a married woman, the wife of E. H. Painter, Esq. The-evidence of both defendants shows that at the time they executed the note Mrs. Painter was not present and that it was delivered to her husband for her. There is no evidence on the-part of the defendants that she ever saw the note or had it in her possession. It was entered by the prothonotary on the 6th. of March, the day after it was executed and delivered to Mr. Painter. It is contended by the defendants that when they signed it, it was for $800 only. The note shows on its face that-the word “fifty” was interlined by Mr. Painter. That word is-in the same handwriting and ink as the body of the note; that is, the same person who filled up the blank note wrote the word, “fifty” with the same pen and ink.</p> <p>This is all that appears so far as the evidence of the defendants is concerned. There is not the slightest evidence nor-is there any pretense that Mrs. Painter, the plaintiff, altered or changed the note, nor does the defendants’ evidence show that she in any way procured, consented, or agreed to it. On this showing alone, if the plaintiff had taken no evidence, I am of opinion that she would be entitled to have the judgment remain on record and to collect the amount of money she actually loaned to the defendants, with interest.</p> <p>The husband could not deprive her of her security by any fraudulent act of his own. But the evidence of Mrs. Painter and her husband, if true, clearly shows that it was an honest transaction. I am not to judge of the truth of the evidence as between these parties, but must determine whether, as the evidence stands, the judgment should be stricken off, or an issue formed to try the question in dispute.</p> <p>Of course, if the alleged alteration in the note was made by the plaintiff, especially if not made in the presence of her husband or by his direction, or by any person authorized by her, after its execution and without the assent of the defendants, it is void. It is, however, as good and effectual in law as it was before the alteration, if it was done by a stranger or was done accidentally, through mistake. It is where the act is voluntary and wilful that it has been held that the alteration avoids the instrument. Neff v. Ilorner, 63 Pa. 327, 3 Am. Hep. 555.</p> <p>The mere fact that Mrs. Painter only actually loaned defendants $800 would not make void a note given by them for $850. She could only recover the actual amount loaned, with interest. Now it seems to me that there is a principle of law to be applied in this ease, in addition to the matter already alluded to. I admit that it is well settled that where a bond, deed, note, or any other instrument is offered with an interlineation or erasure that is material, it is a question for the jury on all the circumstances, whether the alteration was made before or after signature. In all the cases, however, it appears that a contest existed, and it became incumbent upon him who offered the instrument to explain the alteration to the satisfaction of the jury; in other words, where a party offers an instrument which upon its face shows such an interlineation or erasure as would be presumed to have been made after the instrument was executed, the burden of proof is upon him, and the question is for the determination of the jury. But where the interlineation or alteration is of such a character that it wall be presumed that it was made before execution, then the instrument is entitled to be read, and it is for the other side to attack it.</p> <p>The law as laid down by Mr. Greenleaf has been frequently-cited and adopted by the supreme court of this state. In Green-leaf on Evidence, p. 977, § 564, it is said: “If it appears, in the same handwriting and ink with the body of the instrument it may suffice,” — that is, it is relieved from the suspicion, of having been altei’ed after its execution.</p> <p>In the case of Simpson v. Stackhouse, 9 Pa. 186, 49 Am. Dec.. 554, Ohief Justice Gibson says: “As a general rule the law presumes, in favor of innocence, that an alteration in an instrument is a legitimate part of it, till the contrary appears; but it is not extended to negotiable securities.” In that case there-was a contest, the place of payment having been in a different handwriting from the body of the instrument. The judge says : “The difference in the character of the writing is obvious,” etc.</p> <p>In the case of Kobinson v. Myers, 67 Pa. 9, Judge Williams, in delivering the opinion of the court, said: “If it appeared to be written with the same pen and ink as the body of the instrument, the natural inference would be that it was made-before the sealing and delivery of the deed. But if it did not appear to be made with the same pen and ink, no such presumption would arise, and other evidence would be required to-explain it. The original deed was not produced before- us on the argument, and it was not shown by any evidence given on the trial whether the interlineation appeared to be written with the same pen and ink as the body of the deed or not; we cannot say, therefore, that the court erred in admitting it.”</p> <p>In the present case the original note is before the court; and,, as I stated, it is manifest on its face that the interlineation was-made with the same pen and ink and is in the handwriting of the-same person who filled the body of the note. This is not disputed. There is no evidence on the part of the defendants to-contradict it. This being so, how does the case stand ? We have the note with the presumption that the alteration was made before the execution. The plaintiff and her husband both testify positively that the change or alteration was made before the execution by either of the defendants. On the other hand we have-the two defendants testifying that the alteration was not made-before or at the time they executed the note.</p> <p>Thus we have oath against oath. The weight of the testimony, tailing the presumption offered by the note, is in favor of its having been executed after the interlineation was made. This being all the evidence there is in the case on the side of the defendants, ought the court to send it to a jury? .Why not apply the principle now so well settled in the case of Phillips v. Meily, 42 Pliila. leg. Int. 18, and other late eases ? There it is held that “the uncorroborated testimony of a single witness contradicting a writing, which writing is corroborated by plaintiff’s testimony, is not sufficient to overthrow the written contract.” "</p> <p>In that case Judge PaxsoN says: “Here, in addition to the plaintiff’s oath, we have the presumptive evidence furnished by the note itself. Both are brushed away by the oath of the defendant. No chancellor would reform a writing upon such testimony as is here presented. . . . The learned judge should have withdrawn the case from the jury by a binding instruction to find for the plaintiff.”</p> <p>The interlineation in this case is made as interlineations are usually made. It is not a case of filling up a space left in blank intended to deceive or avoid detection. Mr. Painter interlined the word “fifty” in such a manner that everyone could see that it was interlined. Ilis wife was perfectly innocent in the matter, took no part in it, and supposed all was right. Without her own and her husband’s testimony there would be no evidence that she ever knew of the interlineation; and according to their evidence it was made before the note was signed. I think that justice requires that she should have her money. There was certainly no attempt to forge. We have not considered the rule of this court — requiring answers to petitions for rules to show cause, and that the facts alleged in the petition shall be taken as true unless the opposite party shall file an answer thereto, denying the same, under oath — as intended for anything more than to require the petitioner to support his allegations by evidence in case they are denied.</p> <p>I think it would be well to adopt the Bucks county rule,, which has received the approbation of the supreme court in Bussell’s Appeal, 93 Pa. 384.</p> <p>Such is the practice in courts of equity and the orphans’' court, but not in the common pleas, unless there is a rule of court.</p> <p>And now, to wit: July 9, 1885, tbe rule to strike off tbe judgment is discharged, the plaintiff to have execution to collect the sum of $800 unpaid interest and attorney’s commissions, in accordance with the terms and stipulations of the judgment note.</p> <p>As to the $50 in dispute, if it was put in the note, by agreement of the par-ties, merely as a bonus or as usmry, it cannot be collected; but if it was put in in good faith, before the execution of the note, solely to secure a debt due 'E. H. Painter the husband, for service rendered and expenses incurred in and about the business of the defendants, I do not at present see any reason why it cannot be collected, and if the parties demand an issue to try this question such issue will be directed. The judgment is opened, to the extent of $50.</p> <p>Defendants brought error.</p> <p>The court fell into a grave error when it held that part of the note could stand and the other part be stricken off. The court must have been convinced that the $50 interlined and added to the note was put there improperly, or it would have allowed execution for the full sum of $850. The effect of this is to correct the note wherein it was unlawfully changed. This cannot be done by the ■court If this judgment is fraudulent in part it is void in whole. Gates v. Johnston, 3 Pa. St. 52; Neff v. Horner, 63 Pa. 331, 3 Am. Bep. 555; Eulmer v. Seitz, 68 Pa. 242, 8 Am. Bep. 112; Craighead v. McLoney, 99 Pa. 214.</p> <p>The effect of alterations of all written instruments is the same; and any material alteration, as in tire date or sum of a note, avoids it, although not made by the plaintiff herself. Miller v. Gilleland, 19 Pa. 122; Stephens v. Graham, I Serg. & B. 508, 10 Am. Dec. 485; Barrington v. Bank of Washington, 14 Serg. & B. 425; Struthers v. Kendall, 41 Pa. 229, 80 Am. Dec. 610.</p> <p>When the court was convinced that the $50 was wrongfully added to the note, its duty was plain under the law, and it should have vacated and stricken out this judgment, entered on the warrant of attorney. It had the power to do so and should have done so. See Kellogg v. Krauser, 14 Serg. & B. 143, 16 Am. Dec. 480; Hutchinson v. Ledlie, 36 Pa. 112; Banning v. Taylor, 24 Pa. 293; Knox v. Elack, 22 Pa. 331.</p> <p>If the learned judge bad any doubts in the facts, as to whether there was a forgery or unlawful interlineation and •alteration or not, from the inspection of the face of the note and from the evidence taken for and against the rule to show why the .judgment and execution in this case should not be set aside and why they should not be stricken from the records of said court, his duty was plain under the laws governing such cases. The ■court should have awarded an issue to try the fact of forgery •and interlineation and unlawful changing of the note. This was not only its power but its duty in such eases. Humphreys v. Hawn, 8 Watts, 78; Tanning v. Pawsín, 38 Pa. 480; Horner v. Hower, 39 Pa. 128; McCutcheon v. Allen, 96 Pa. 323.</p> <p>In Neil v. Tate, 27 Pa. 208, it was held: “The refusal of the common pleas to set aside an execution is not the subject of review on a writ of ■error, when there is nothing on the record to show irregularity.” In Bemus v. Clark, 29 Pa. 251, it was held: “The common pleas may set aside an award, under the compulsory arbitration law, for misbehavior, or when tire award has been procured by ■corruption or undue means; but a refusal to do so is not the ■subject of a writ of error.” See also Keemer v. Herr, 2 Pennyp. 115; Bunce v. Wightman, 29 Pa. 335; Henry v. Brothers, 48 Pa. 70; Idiegel v. Wilson, 60 Pa. 388; McClelland v. Pomeroy, 75 Pa. 410; Hatch v. Stitt, 66 Pa. 264.</p> <p>The alteration was made in ink of the same color and with the same pen. Hence tire presumption that it was before signature, at least to the extent that it would be entitled to be read in evidence. 1 Greenl. Ev. p. 977, § 564; Robinson v. Myers, 67 Pa. 9.</p> <p>Now the alteration or interlineation in question, whenever made, was not made by the defendant in error, nor by anyone by her consent or procurement, nor in her interest nor for her benefit. It was ultra vires as to the terms of her contract or ■agreement to lend her money and the conditions thereof. Although in fact made by her husband, it was upon the terms ■and conditions of a separate and independent contract to which •she was in fact and in law a stranger. Robertson v. Play, 91 Pa. 242; 1 Grree.nl. Ev. 12th ed. 607, § 566; Worrall v. Grheen, 39 Pa. 388; Eritz v. Montgomery County, 17 Pa. 131; Neff v. Horner, 63 Pa. 327, 3 Am. Eep. 555; Withers v. Aítínson, 1 Watts, 236; Grubbs v. McDonald, 91 Pa. 236; Kountz v. Kennedy, 63 Pa. 187, 3 Am. Pep. 541; Pauli v. Com. 89 Pa. 432; Foust v. Kenno, 8 Pa. 378.</p> <p>Nor are the acts or declarations of the husband to bind or prejudice the rights and separate estate of the wife. See Gerhab v. Kuth, 2 Pennyp. 250.</p> <p>Nor are the declarations of the wife admissible in evidence against the husband. Peck v. Ward, 18 Pa. 506.</p> <p>If the alteration in question had been made, even after signature, by the husband of the defendant in error, or by her consent procured by tire influence of her husband, in his presence or by his command, her separate interests and estate could not be prejudiced thereby, nor the judgment avoided to the éxtent it was to protect and secure such separate interests or estate of tire wife. United States Trust Co. v. Sedgwick, 97 U. S. 304, 24 L. ed. 954, citing Chancellor Keet, 2 Com. 12th ed. 149; Kowing v. Manly, 49 N. T. 192, 10 Am. Kep. 346; 2 Cord, Married Women, §§ 1156, 1157; 2 Bishop, Married Women, § 263.</p> <p>Where the fraud is directly within the alleged contract of tire wife, the wife is not responsible, nor is the husband. 2 Cord, Married Women, § 1158, citing Goulding v. Davidson, 26 N. Y. 604; Scudder v. Gori, 3 Kobt. 661; Angel v. Felton, 8 Johns. 149; Wright v. Kerr, Addison (Pa.) 13.</p> <p>A wife having no power at law to enter into a contract of agency with her husband, it would seem that she cannot be made liable for his fraud while assuming to act for her in that capacity. Birdseye v. Flint, 3 Barb. 500.</p>

The facts sufficiently appear in the opinion below, as follows, by— Rockefeller, P. J.: This is an application to set aside or open the biddings of a sheriff’s sale. The petition was presented at the same term, after the acknowledgment of the sheriff’s deed, but before the whole of the purchase money was paid, and before the delivery of the deed.

Michael Giles, the plaintiff in error, in the early part of 1884, was the tenant of Ellen Cavanaugh, one of the defendants .in error.

<p>Error to tbe Common Pleas of Clinton County to review a judgment for defendants in an action of debt upon a bond.</p> <p>B. E. Sloan, doing business under tbe firm name of P. E. Sloan & Company, owned a stock of goods wbicb were kept in a storeroom in tbe city of Lock Haven, where be carried on business. Tbe plaintiffs in tbis action, having claims against him,, sued him before an alderman and obtained judgments on February 28, 1884. Executions issued upon these judgments were placed in tbe bands of a constable and levied upon tbe goods on tbe same day. On March 14 a levy was made upon the' same goods by tbe sheriff, under a judgment in favor of Hallock,. Cary & Company.</p> <p>By virtue of a single bill with warrant of attorney to confess, judgment, dated March 12, Alexander Sloan, father of defendant, on March 14 entered a judgment against him for tbe sum of $4,638 and placed a writ of fieri facias in tbe bands of tbe sheriff. Tbe levy on tbis writ was on tbe same day referred to tbe writ of Hallock, Cary & Company, and after advertisement’ tbe sheriff, on March 22, sold tbe goods. Tbe sale realized $1,447, of wbicb tbe sheriff applied to rent — tbe Hallock, Cary & Company writ" — $434, and tbe balance, $1,012.56, be applied on tbe Sloan writ, although tbe writ was not returnable, until tbe second Monday in May, and' be bad been notified that, tbe money was claimed on tbe writs in tbe constable’s bands.</p> <p>On tbe next day after tbe writ of fieri facias on tbe Sloan, judgment was put in the bands of tbe sheriff, appeals were taken- and bails entered in each of tbe judgments before tbe alderman.</p> <p>Transcripts of these appeals were duly taken and entered in. tbe common pleas of Clinton county.</p> <p>After tbe entry of tbe transcript on the 28th day of May,. 1884, a rule to plead was entered on tbe defendant in each ease;, and although duly served, no plea was entered, and judgment was entered in each case, for default of a plea, on tbe 17th day of November, 18S4.</p> <p>At tbe bearing before tbe alderman defendant appeared in each case and admitted tbe correctness of tbe demand. He-suffered judgment for default of a plea and testified in tbe trial of tbe cause that be bad no defense to any of tbe claims.</p> <p>Tbis suit was brought upon the official bond of tbe sheriff! to recover the amount which was due under the writs in the constable’s hands. Plaintiffs claimed in the court below that this, with the other evidence, showed such a perversion of the right of appeal, and such a hindering and delaying of the plaintiffs in the prosecution of their respective causes, as rendered the appeals void, and left the constable’s levies at the time of the sale good and valid; and the sheriff, having had due notice that this claim would be made and having paid the money to the plaintiffs in the Sloan writ long before the return day, is affected with notice, and, if the constable’s levies were good, must pay the plaintiffs’ judgments regardless of his payments to Sloan.</p> <p>The court below, without delivering any charge to the jury or reason for his instructions, directed the jury to find for the defendants; whereupon plaintiffs brought error.</p> <p>"When the intention with which an act is done becomes the subject of inquiry, it belongs exclusively to the jury to decide. United States v. Quincy, 6 Pet. 466, 8 L. ed. 466.</p> <p>Where matters alleged to be fraudulent are investigated in a court of law, it is the province of the jury to find the facts and determine their character. Gregg v. Sayre, 8 Pet. 244, 8 L. ed. 932.</p> <p>Of the weight of evidence the jury are the judges; the intent was a question of fact, and peculiarly within their province. Briscoe v. Bronaugh, 1 Tex. 326, 46 Am. Dee. 119.</p> <p>Fraud must be proved. A sale of chattels, however, without delivery, or a conveyance of land without consideration, is conclusively presumed to be fraudulent. Fraud is therefore a fact to be proved, like any other fact, by. a preponderance of testimony. Name v. Weigley, 22 Pa. 183.</p> <p>The question of fraud cannot be determined by the court. If there is any evidence it must be submitted to the jury. Mueller v. Schmidt, 42 Phila. Leg. Int. 301.</p> <p>Whatever is done in fraud of a law is done in violation of it. The William King, 2 Wheat. 148, 4 L. ed. 206.</p> <p>In Davis v. Ward, 1 Phila. 216, judgment was obtained before an alderman, execution issued, and levy made on defendant’s goods; judgment was then confessed in court, execution issued, and an appeal taken from the judgment of the alderman; tbe goods levied on by the constable were tben sold on the writ issued from court, and the money brought into court for distribution. The court held that if the appeal was taken for the purpose of hindering the plaintiff in the judgment before the alderman, and of giving priority to the other, it was a fraud, and the appeal would be treated as void.</p> <p>A judgment entered by a justice of the peace upon the confession of the party or his agent is subject to an appeal. Kowen v. King, 25 Pa. 409.</p> <p>A conveyance of land by a debtor to a creditor to pay an existing debt is not fraudulent, although the parties contemplate that thereby the claims of other creditors will be defeated. Covanhovan v. Hart, 21 Pa. 495, 60 Am. Dec. 57.</p> <p>An insolvent debtor may prefer one creditor to another, either by judgment, deed, or in any mode, except by an assignment in trust, if his motive be an honest intent to pay the preferred debts, although the unpreferred creditors be delayed or wholly prevented from obtaining judgment. York County Bank v. Carter, 38 Pa. 446, 80 Am. Dec. 494.</p> <p>•Justice Williams, in Bentz v. Kockey, 69 Pa. 76, says: “Where there is no question of bankruptcy, the law does not adjudge the sale or transfer of property by an insolvent debtor in satisfaction of his indebtedness, when accompanied by actual delivery of possession, to be fraudulent and void, if there is no intent to hinder, delay, and defraud creditors in the collection of their claims, though this may be the tendency and effect of such sale or transfer.”</p> <p>Where executions issued upon two judgments before a justice of the peace were returned the day after the levy, in consequence of appeals taken in each case, their liens upon the goods levied on were destroyed, and they were not entitled to payment out of the proceeds of the same property subsequently sold by the sheriff upon the execution of another creditor, although the appeals taken by the defendant were not entered up by the first return day of the ensuing term as required by law. Cope’s Appeal, 39 Pa. 284.</p> <p>Judge MayeR charged the jury in Leonard v. Dillon, 76 Pa. 45: “Had notice been received from the justice that the judgment was appealed from and the execution revoked or superseeled, and the constable had then proceeded with the execution of the writ, he would have rendered himself liable as a trespasser.” See, especially, O’Donnell v. Mullin, 27 Pa, 202, 67 Am. Dec. 458.</p> <p>It is the motive of the creditor which must be looked into; and if that is honest and lawful, the intent of the debtor does not enter into the question. One cannot be prejudiced by the fraud of another of which he had no notice. Reehling v. Byers, 94 Pa. 316.</p> <p>As a general rule the court will not order the proceeds of personal property to be paid into court; the sheriff must take the responsibility of distribution. Baum v. Brown, 11 W. N. 0. 202; Marble Co. v. Burke, 5 W. N. C. 124; Dunn v. Megarge, 6 W. N. C. 204.</p>

Reported below, 1 Pa, Co. Ct. 342. The plaintiffs are citizens and taxpayers of Lackawanna county. The defendants are commissioners of Lackawanna county and assessors of the city of Scranton.

The facts appear in the charge of the court below as follows: This is an action of ejectment, brought by Solomon Stroup against Isaac C. McCloskey, and is the kind of remedy resorted to by one party where he seeks to recover from another the possession of land. By this action Stroup seeks to recover the possession of 6 acres and 80 perches of land situated in Karthaus township, Clearfield county.

The following are the facts as agreed upon by the parties: The title to the premises in dispute was out of the commonwealth before June 6, 1797, and was at that time vested in John Light, who by deed conveyed, inter alia, the premises to Abraham Light. On June 10, 1847, Abraham Light conveyed, inter alia, the premises in dispute to Frederick Boyer, in trust.

<p>Error to the Common Pleas of Northumberland County to review a judgment for defendants in an action to enforce a mechanics’ lien.</p> <p>This action was brought to enforce payment of the following mechanics’ lien:</p> <p>Jacob H. Linck, hardware and paint dealer, and plaintiff above named, hereby files his claim or statement of demand for $61.15, with interest, and against the building and the ground covered thereby, and so much other ground immediately adjacent thereto and belonging to the said Peter Wolf as may be necessary for the ordinary and useful purposes of the same, and sets forth as follows, to wit:</p> <p>Eirst. The name of the party claimant, Jacob H. Linck, the name of the owner, or reputed owner, Peter Wolf, the name of the contractor at whose instance and request the work was done and materials furnished, Charles De Chambot.</p> <p>Second. The amount claimed to be due is $67.15, for hardware, paints, etc., within six months last past, for and about the erection and construction and upon the credit of the building hereinafter described; the particular items, amounts, and dates when said materials were furnished being specifically set out in the bill hereto annexed and made part of this claim.</p> <p>Third. The said building is located on a lot or piece of ground situated in Delaware township, Northumberland county, state of Pennsylvania, on the south side of public road leading from IVIcEwensville to Watsontown. Size of house, of brick, 28 x 24 feet; two stories high, with kitchen attached, 16 x 16 feet, and with L used for bedrooms, 9 x 16 feet, with curtilage appurtenant, about one acre of ground.</p> <p>The following is the charge of the judge in the court below:</p> <p>It occurs to me at present that the question in this case is one of law, principally if not wholly, and that it must therefore be decided by the court.</p> <p>This is a scire facias on a mechanics’ lien, filed, under the mechanics’ lien law, by Jacob H. Linck against Peter Wolf, owner or reputed owner, and Charles De Chambot, contractor. The plaintiff claims $67.15, with interest, against the building and the grounds covered thereby, and so much other ground, immediately adjacent thereto and belonging to the said Peter Wolf, as may be necessary for the ordinary and useful purposes of the same, and set forth as follows: (Then follows the names of the parties as set forth in the lien, and the amount and kind of materials furnished.)</p> <p>The act of 1835 required the register of a mechanics’ lien to contain a specification of the location of the building, its size, the number of stories, or such other matter of description as •shall be sufficient to identify the same. Hence, as stated by the supreme court in the case of Washburn v. Pussel, 1 Pa. St. 499 : “It is evident that the building must be described with at least convenient certainty as regards both its locality and its structure.”</p> <p>The locality of the building is described in the lien in this case as follows: The said building is located on a lot or piece of ground situated in Delaware township, Northumberland county, and state of Pennsylvania, on the south side of the public road leading from McEwensville to Watsontown. “That is. the whole description as to locality.”</p> <p>A number of cases have been decided by the supreme court at different times on the question of what is a sufficient description of the locality of a building in a mechanics’ lien, and in all of them it has been held that the locality of the building-must be substantially stated.</p> <p>It was stated in tue case of Simpson v. Murray, 2 Pa. St. 16 r “Although, as it is said in Ewing v. Barras, 4 Watts & S. 468, every mistake in filing a claim, however trivial, will not invalidate the lien, yet the building must be described substantially so as to identify it.”</p> <p>In one case the building was described as being on the west, side of a public road leading from one place to another, but locating it as adjoining another person’s land, thus fixing its location. In the present case, as I have stated, the location is. only fixed by stating that it is on the south side of the public-road leading from McEwensville to Watsontown. Perhaps, by straining the matter a little for the purpose of enabling the-plaintiff to record what may be a meritorious claim, we might decide that the description, as between these parties and as the-case now stands, would be sufficient. [But as we view it at present, the difficulty in the case is that it is an erroneous and incorrect description. If this house was located on fye south side of a public road leading from McEwensville to Watson-town, that would be one thing; but the evidence of the plaintiff and defendants shows that it is not the case. There is a road leading directly from McEwensville to Watsontown, almost a. straight road, the distance being about 2% miles; and that is-the road, as we understand, that is known as the road between these two points; and Mr. De Chambot, one of the defendants-in this case, who was a witness called by the plaintiff, testified that the building against which this lien was filed is not located along this road, nor on the south side of it. This and the other evidence in the case shows clearly that it is not so located. It-seems clear from the evidence that Mr. Wolf is the owner of a brick building, and the one, too, in question in this case,. against which the lien was filed, but along another road, about 3 Y2 miles to the north of this road referred to leading from Mc-Ewensville to Watsontown. It is clear it is not on the road leading between those points. It is true you can go that way, as there is a road leading from Watsontown to Mr. Wolf’s house, a distance of some 4 miles. Then you can go some distance to what is called the state road, and thence from there to Mc-Ewensville, a distance of some 6 or 7 miles, as stated by the witnesses, making the distance around about 10 miles by way of Mr. Wolf’s house.</p> <p>Now, it cannot be pretended that this is the road mentioned in this mechanics’ lien filed in this case; and therefore it is clear to my mind that not only is the description of the locality of the building insufficient in this lien, but that it is also an erroneous description, so that on a judgment obtained in this case, if one was obtained, and a sheriff’s sale had under levari facias, he would describe the building as it is described in the lien, and the purchaser would get title to a hoirse and lot situated in Delaware township on the south side of the road leading from McEwensville to Watsontown, if there was any such house there owned by Peter Wolf. Simpson v. Murray, 2 Pa. St. 76, already referred to.</p> <p>Now, that being the case, it strikes me at present that there can be no recovery on this lien, and that your verdict must be in favor of the defendants.]</p> <p>Other questions arise in the case which I may just as well dispose of, so that if the case should go to the supreme court the whole matter can be decided, and thus end this litigation. The lien then describes the building against which it is entered as follows: “A brick house 28 by 24 feet, two stories high, with kitchen attached, 16 by 16 feet, with curtilage appurtenant and about one acre of ground.” The evidence shows that the brick house 28 by 24 feet, two stories high, which is the main building, is an old structure, and that it was not remodeled and substantially turned into a new building; that the shingles were taken off and replaced with either new shingles or slate, we don’t know which, that the rafters were not taken down, but some other slight improvements made. But it cannot be said under the evidence, we think, that it was rebuilt or constructed into a new building. Now, there is no general act of assembly in this state, that I am aware of, that allows a mechanics’ lien to be filed against an old building simply for repairs. But it is contended on the part of the plaintiff that there was a new building. That is, that the kitchen attached to this old building, 16 by 16, with an L used for bedrooms, 6 by 16, was a new building. If the materials were furnished in this case on the credit of the kitchen and the L attached to the old building, the mechanics’ lien would doubtless be good against it, even if the materials so furnished were used in the old building or not used at all in either.</p> <p>In the case of Wharton v. Douglas, 92 Pa. 66, the supreme court decided that where materials are furnished for a new building intended to be used in connection with an old manufacturing establishment, the mechanics’ lien therefor should be filed specifically against the new erection; and it is fatal to the claim to file it against the general building.</p> <p>In the case now before the court, the lien is filed against the old building, that is, the general or main building, stating, however, the size of the kitchen attached to it and the L, which perhaps distinguishes the case somewhat from the case of Wharton v. Douglas that I have just referred to. And if the case stood on that alone, perhaps I would not be so sure about my decision being correct.</p> <p>The plaintiff’s counsel request the court to charge the jury as follows:</p> <p>[First. That for the purpose of the trial of the issue in this case, it being between a materialman and the owner, and not between creditors, the description contained in the lien, both as to location and size or kind of structure, is sufficient under all the evidence ih the case.</p> <p>I do not affirm this point.]</p> <p>[Second. That under the evidence in this case, the issue being between the materialman and owner only, it is no defense to plaintiff’s claim that a part of the materials furnished by him,, if furnished upon the credit of the new part of the building, were used by the contractor and builder in remodeling the old part of the structure mentioned and described in the lien or claim filed, and the plaintiff would therefore be entitled to recover the reasonable or market value of the materials by him so furnished at the instance of the contractor.</p> <p>This may be so, and if there was nothing else in the case to prevent, the plaintiff would be entitled to recover, j</p> <p>[Third. That if, under the evidence in this case, the jury find the materials charged for by the plaintiff were furnished upon the credit of the building described in the lien or claim filed, such building in part composed of the old part or kitchen attached and made to communicate with such old part remodeled and the wing called an L, used for bedrooms, the plaintiff would be entitled to recover the reasonable and fair value of the materials so charged for in this action and by him so furnished, without regard to the question as to whether a part— if so, what part — of such materials, were used in and about the erection and construction of the new part, or the remodeled or old part of such building or structure.</p> <p>This would be so if the evidence showed such a remodeling or rebuilding of the old bbuilding as to make it substantially a new building. But as the evidence shows the main building, described in the claim filed, was not so remodeled, but only repaired by putting on a new roof without new rafters, and other slight matters, the lien, we think, ought to have been filed specifically against the new addition.]</p> <p>[Fourth. That under all the evidence in the issue in this case the vérdict should be for the value of the materials thus furnished by him as claimed in this action, there being no evidence that the materials so furnished were of a kind not suited to the purpose of the building in controversy, nor that they were furnished in an excessive quantity or at excessive rates of charge.</p> <p>This point is not affirmed.]</p> <p>This being a question of law, all you have to do is to render a verdict in favor of the defendants.</p> <p>The plaintiff brought this writ, assigning for error the action of the court as indicated above by brackets»</p> <p>In Ewing v. Barras, 4 Watts & S. 467, it was held that “certainty to a common intent is sufficient in a description of property in a mechanics’ lien.”</p> <p>Only such inaccuracies in description as are calculated to mislead subsequent purchasers or creditors should destroy the claim.</p> <p>The distinction between the claim of the materialman as against the owner, and a purchaser or creditor without notice or suggestion of adequate grounds of inquiry, seems marked and well developed by the decided cases to the point of description and location. Harker v. Conrad, 12 Serg. & E. 801, 14 Am. Dec. 691; Kennedy v. House, 41 Pa. 39, 80 Am. Dec. 594; Knabb’s Appeal, 10 Pa. 186, 51 Am. Dec. 472; Shaw v. Barnes, 5 Pa. 18, 47 Am. Dec. 399; 12 Serg. & E. 301; 5 Eawle, 308; Springer v. Keyser, 6 Whart. 187.</p> <p>Whatever may be said of the matter, questions relating to sufficiency of description are generally for the jury. See Ewing v. Barras, 4 Watts & S. 467; Kennedy v. House, 41 Pa. 39, 80 Am. Dec. 594.</p> <p>The remaining question seems to be whether the claim should have specified only that part of the whole building which was an entirely new structure, designated as “a kitchen with an L attached.”</p> <p>The repairs made the whole building practically a new and reconstructed building, fairly within the meaning of the mechanics’ lien law.</p> <p>In Driesbach v. Keller, 2 Pa. St. 77, it is held: “Eepairs and additions may constitute a new erection within the act”</p> <p>In Nelson v. Campbell, 28 Pa. 156, it was held: “It is not necessary that a new building erected should be distinct from and independent of older buildings in order to sustain a lien for work done and materials furnished towards the erection and construction of the building.”</p> <p>The lien in such cases attaches to the whole building, and to so much of the ground of the owner adjoining as is necessary for the use and enjoyment of the building for the purpose for which it was designed. See Lightfoot v. Krug, 35 Pa. 348; Pretz’s Appeal, 85 Pa. 349; Harman v. Cummings, 43 Pa. 322; Odd Eellows Hall v. Masser, 24 Pa.- 507, 64 Am. Dec. 675; Wharton v. Douglas, 92 Pa. 66.</p> <p>The building must be described with at least convenient certainty as regards both its locality and structure. Washburn v. Eussel, 1 Pa. St. 499.</p> <p>There must be enough in the description of the locality and other peculiarities of the building, to identify it, to point it out with reasonable certainty, with certainty to a common intent. Kennedy v. House, 41 Pa. 39, 80 Am. Dec. 594.</p>

This action was brought by Joseph Gerhard against Amos Gerhard and Peter Gundrum, executors of John Gerhard, to recover money advanced by plaintiff to decedent and used in the purchase of certain hotel property. The property was subsequently sold to William Wolfe. The money was alleged to have been loaned in 1870. At-the trial the executors pleaded the statute of limitations.

A. H. Shaw, A. B. Shaw, and Joseph Shaw were appointed executors of Bichard Shaw. On January 1, 1879, the first partial account of the executor was filed in the orphans’ court of Clearfield county. Upon this account commissions were allowed to the executors in the sum of $2,700. This sum was paid to A. B. Shaw in a lump.

The following is the opinion of the court below, delivered by Herman, P. J\: The Carlisle Gas & Water Company was incorporated by an act of the general assembly passed April 19, 1853. Under the powers granted by its charter the company constructed a system of water works, by means of which it introduced water into the borough of Carlisle on the 1st of February, 1854.

The facts as found by the court below, and the opinion delivered therein by Boucher, P. J., are as follows: 1. The name of the pauper is Sarah Jane Hoffman. She is the daughter of Charles Hoffman, and was born in Penn township, Union county, now Snyder county, on May 18, 1854. Both she and her.' father had a settlement in Penn township aforesaid on the 9th day of March, 1883.

A policy of insurance was issued upon the life of Catharine Hettinger in favor of her husband, Joseph Hettinger. The title to this policy, by assignment from Hettinger, became vested one half in Daniel E. Speck and one half in John H. Speck, neither of whom had an insurable interest in the life of the insured. After the death of Mrs. Hettinger, the defendants, John H. Speck and Daniel E. Speck, received the money from the insurance company, giving therefor a joint receipt.

Certiorari, sur appeal from a decree of the Orphans’ Court of Erie County requiring executors to give security.

- The facts appear in the following portions of the charge of Galbraith, P. J., in the court below: The plaintiff’s claim is for damages alleged to have been sustained by him in consequence of a fall which he received in passing over a sidewalk in the city of Erie on the llth of Ianuary, 1882.

<p>Where the sale of land was at a specific price of $135 per acre, and the (deficiency in the quantity paid for was 6 acres out of 56 acres sold, — Held, .that the deficiency was too large not to be relieved against in equity.</p> <p>Note. — Where money has been paid by a purchaser of real property under a mistake of fact to one not entitled thereto, a recovery back may be had. D’Utrieht v. Melchor, 1 Dali. 428, 1 L. ed. 208; Clapp v. Pinegrovo Twp. 138 Pa. 35, 12 L. R. A. 618, 20 Atl. 836; Cannell v. Smith, 142 Pa. 25, 12 L. R. A. 395, 21 Atl. 793; Reed v. Horn, 143 Pa. 323, 22 Atl. 877.</p>

Lucy Haines, a poor person, became a charge upon Kelly township, although it was alleged that she had never gained a settlement in that township. Upon petition an order was made removing her to Gregg township. The latter township appealed to the quarter sessions of Union county, where the decree of removal was reversed, and Kelly township was decreed to pay the ■costs.

This case'was submitted to the court upon the following agreed statement of facts: Charles J. Conrad, by virtue of certain conveyances and assurances duly had and executed, became seised in his demesne as of fee of, in, and to the tract of land described in the writ of ejectment in this case.

plaintiffs in a feigned issue to try title to property levied' on under a fieri facias. This was an issue under the sheriff’s interpleader act, to try the title to a lot of hides which had been levied upon as the property of Tyler & Scouller, by writs of fieri facias issued at the suit of Ensign & Son. Tyler & Scouller were tanners. Hoffield & Geissler were dealers in raw hides.

<p>Error to the Common Pleas of Erie County to review a judgment for defendants upon an issue under the sheriff’s inter-pleader act to try title to certain property.</p> <p>On December 4, 1879, Tyler & Scouller, tanners, entered into the following contract with Wm. E. Johnson & Co., wholesale leather dealers and commission merchants:</p> <p>This agreement made between Tyler & Scouller, of North East, Erie county, Pennsylvania, of the first part, and Wm. E. Johnson & Company, of Boston, Massachusetts, of the second-part, Witnesseth, That each of the parties, in consideration of the agreement of the other herein contained, hereby agree with the other, as follows, viz.:</p> <p>Said Tyler & Scouller agree to purchase raw hides and skins sufficient to supply their tannery in North East, Pennsylvania, for the time being, and cause the same to be delivered to said Wm. E. Johnson & Company at said tannery, and will have every hide of the different lots marked with a number, to distinguish the lots, and to send to said Wm. E. Johnson & Company, at Boston, bills of said hides and skins, as they are being delivered at said tannery.</p> <p>Said Wm. E. Johnson & Company agree to remit to said Ty-er & Scouller such sums of money as shall be requisite to pay for said hides and skins, their market value in North East, Pennsylvania, at the time of delivering thereof at said tannery, and as fast as delivered. Said Tyler & Scouller agree to receive and tan for said Wm. E. Johnson & Company the said hides and skins, in a workmanlike manner, with all reasonable despatch, and to send the same as fast as tanned to said Wm. E. Johnson & Company at Boston. Said Wm. E. Johnson & Company agree to sell said tanned hides and skins and pay to said Tyler & Scouller, as compensation for said tanning, such sums as shall equal the proceeds of the sales of said leather, after deducting therefrom the said purchase price of the hides and skins from which the leather was made; also 5 per cent on the gross amount of the sales, freight on the leather, interest at the rate of 7 per cent per annum, and all premiums which said Wm. E. Johnson & Company pay for insuring the said hides and skins while in tannery or storehouse at North East.</p> <p>Said Tyler & Scouller shall be liable for and pay to said Wm. E. Johnson & Company any loss or damage to said property, by theft or otherwise; said hides and skins always and under every state of the tanning process to remain the exclusive property of Wm. F. Johnson & Company; and nothing herein contained shall in any way or manner be construed as making said Tyler & Scouller and Wm. F. Johnson & Company partners.,</p> <p>• The parties did business under this agreement until February 27, 1885, when judgment was entered against Tyler & Scouller in favor of W. A. Ensign & Son. Writs of fieri facias were issued, and all the hides, skins, and leather in the tannery were levied on as the property of Tyler & Scouller. Johnson & Company claimed them.</p> <p>A portion of the hides levied on by the sheriff had been bought by Tyler & Scouller from Hoffield & Geissler and Nathan Wolf, and these same hides had been sold by Tyler & Scouller to Wm. F. Johnson & Company and by them paid for, but Tyler & Scouller had not paid Hoffield & Geissler and Nathan Wolf for them; and consequently Hoffield & Geissler and Nathan Wolf appeared and claimed them as their property, and alleged that Tyler & Scouller had fraudulently induced them to sell the hides on credit, by false representation as to their pecuniary circumstances.</p> <p>To settle who were the owners of the property levied on, the court directed an issue to try the question, wherein Wm. F. Johnson & Company, Hoffield & Geissler, and Nathan Wolf were plaintiffs, and W. A. Ensign & Son were defendants.</p> <p>At the trial plaintiffs in error presented certain points to the court, requesting a charge in conformity therewith. The points and answers were as follows:</p> <p>1. If the jury find from the evidence that Wm. F. Johnson & Company, under contract with Tyler & Scouller dated December 4, 1879, paid Tyler & Scouller for the hides and skins in their tannery, and had them marked with a private mark to designate that they were the property of Wm. F. Johnson & "Company, then, and in that case, they became the property of said Wm. F. Johnson & Company, and the plaintiffs are entitled to a verdict in their favor.</p> <p>Answer. As between Johnson & Company. and Tyler & Scouller, the relations would be as provided in the contract in ■evidence, which is of course the law of the case so far as the parties to it are concerned; but as against the creditors of Tyler •& Scouller, under whose execution the property was seized, the case is otherwise. The evidence shows that the transaction was a loan or loans by Johnson & Company.</p> <p>The point is refused.</p> <p>2. If the jury find from the evidence that Wm. F. Johnson & Company innocently bought the hides from Tyler & Scouller, «embraced in lots 97 to 106 inclusive, and that the hides were kept hy them at the tannery of Tyler & Scouller, to be tanned under the said contract of December 4, 1879, then said hides were the property of Wm. F. Johnson & Company, and the verdict of the jury should be in favor of Wm. F. Johnson & Company for the hides embraced in lots 97 to 106 inclusive.</p> <p>Answer. This is refused.</p> <p>There was no change of possession as required by law; and while I am of opinion that a purchaser may leave unfinished goods with a manufacturer to be completed, and that in such case the fact of property being left in possession of the seller would not be fraudulent as to creditors, the case here presented is of a different nature. Johnson & Company were lenders «only and not purchasers, so far as third persons are concerned; and they cannot hold the property as security for advances, as against creditors who have taken it in execution.</p> <p>The point is refused.</p> <p>Johnson & Company brought this writ, assigning for error the answers of the court as above.</p> <p>In the case of Barr v. Keitz, 53 Fa. 257, the court says: “But in considering the question what is an actual delivery, the nature of the property and circumstances attending the sale must be taken into the account. We are not, in carrying out a mere rule off policy, to confound all distinctions between that which is capable of easy delivery and that which is not. Squared timber-lying in the woods, or piles of boards in a yard, are incapable-of the same treatment as a piece of cloth or a horse. Chase v.. Ralston, 30 Pa. 539; Haynes v. Iiunsicker, 26 Pa. 58; Herron v. Fry, 2 Penr. & W. 263. So there are-many cases which allow the force of those circumstances which take away any faise color or appearance of ownership remaining in the seller. MeVicker v. May, 3 Pa. St. 224, 45 Am. Dec. 637,” and other-cases cited. See Clow v. Woods, 5 Serg. & R. 281, 9 Am. Dec.. 346.</p> <p>—An agreement to sell a chattel in an unfinished state, to be-delivered at a future time, is an executory contract for a breach of which an action -for damage lies; but it does not pass the-property in the chattel. Pritchett v. Jones, 4 Rawle, 260.. See Jenkins v. Eichelberger, 4 Watts, 121, 28 Am. Dec. 691.</p> <p>Acts which were not fraudulently intended, yet, as their tendency is to defraud creditors, if they vest the property of the: debtor in his grantee, are void for legal fraud. Whenever the.subject of the sale is capable of actual delivery, it must accompany and follow the sale. The possession of the chattels by thevendee must be exclusive of the vendor. McKibbin v. Martin,. 64 Pa. 352, 3 Am. Rep. 588.</p> <p>Actual change of possession must accompany a voluntary sale-of chattels, and the possession must continue in the purchaser. It is not the place the property occupies that gives color of' possession to the vendee, but the connection the place has with the vendor. Barr v. Reitz, 53 Pa. 256; Wagner v. Com. 16 W.. N. C. 75.</p>

F. S. Fisher owns a piece of timber land in Schuylkill county. He entered into a contract with one John H. Miller to cut mining timber on the land. Miller also worked the portion of the land which was cleared and under cultivation. Fisher pur- ■ chased for use on the farm, inter alia, a horse. Miller sold this horse to the defendant Moyer, whereupon Fisher brought this action to recover possession thereof.

County in equity. The bill in this case was filed by Eliza B. Borclcman by her next friend, James Boggs, against Bobert E. Borclcman, alleging that plaintiff and defendant were lawfully married on November 9, 18J5, and that three children were bom to them;'that in 1883, her husband took a trip to Europe; that before he left he removed his family from their home in Bradford to Hamilton in Canada, to remain until his return; that upon his return he was so illnatured that it…

<p>Error to the Common Pleas of Perry County to review a judgment for plaintiffs in an action of tresspass.</p> <p>Ephraim S. Jones, who carried on the business of a butcher in the borough of Newport, was sold out judicially on an execution in 1884.</p> <p>After that, his wife carried on the same business in her own right, had her shop in the same building with the same sign over the door, and the meat was sold through the town by her husband from the same wagon formerly used by him. She had about $100 of separate estate. She gave her husband $35 with which to buy a horse. He obtained a loan of $20 upon his wife’s credit, and with the combined sums purchased the horse. Jacob Tibbins, a constable, levied upon and sold this horse as the property of Jones, under an execution which had been placed in his hands.</p> <p>Mrs. Jones brought this action against the constable to recover damages for the alleged trespass on his part in levying upon and selling her property.</p> <p>Two questions were presented.</p> <p>1. Under the circumstances, was the loan by Stambaugh of $2.0 on the credit of Mrs. Jones separate estate?</p> <p>2. If it was, still, as the business of Mrs. Jones was the same as her husband had followed immediately before, and. carried on in the same shop under the old sign of her husband, to wit, “E. S. Jones,” was it a legal fraud, so as to subject the horse used in carrying it on to levy and sale at the instance of' the husband’s creditors ?</p> <p>The court left the first question to the jury, and the second was raised by the defendant’s second point, which point and the: answer thereto are as follows:</p> <p>2. The testimony of the plaintiff shows that she conducted', her business of butchering in the old stand previously 'occupied by her husband, E. S. Jones, when in the same business, for himself, having painted over the place of business “E. S. Jones,” and nothing more; that this sign was not changed when the plaintiff set up in the same business; that the horse in controversy was used to haul the meat to customers, came to and left the stand with meat, and was driven by her husband.</p> <p>This was a legal fraud, and subjected the horse to levy and' sale on an execution against the husband. A married woman cannot place her separate property, nsed in a public biisiness, under a sign in tbe name of ber husband, and then, when execution creditors of tbe husband appear, claim tbe property as ber own. This horse, being used to conduct tbe business, was as much covered by tbe sign “E. S. Jones” as if stabled under tbe sign itself.</p> <p>Answer: The credit in this case was given by tbe execution creditor to E. S. Jones and M. B. Stambaugb bis surety, and their note taken, some length of time before E. S. Jones was sold out- by tbe sheriff, and tbe business of butchering was succeeded in by his wife. Tbe business of butchering was conducted principally by hauling around tbe meat and distributing to tbe customers at their respective residences, and not by tbe customers coming to tbe shop and making their purchases at tbe counter. Tbe butcher’s sign is not, therefore, a very material thing, and in this instance there was simply tbe name of '“E. S. Jones” painted on tbe building, with nothing to indicate that any business was carried on at all. Because, therefore, this execution creditor’s debt was created some time before Mr. Jones began tbe business, we decline to affirm this point as applicable to tbe facts in this case.</p> <p>Verdict and judgment passed for plaintiffs, and defendant brought error.</p> <p>If a married woman advances money to ber husband to carry on business, and be carries it on as if be were projtrietor .and owner, tbe wife’s money so invested is not protected. Ward t. Biddle, 12 Phila, 538.</p> <p>It was imperative upon tbe wife to show affirmatively that Stambaugb made tbe loan to ber husband as ber agent, upon tbe faith and credit of ber separate estate, which necessarily involves tbe idea that she must also show affirmatively that Stambaugb knew that she bad a separate estate. Sixbee v. Bowen, SI Pa. 149; Lochman v. Brobst, 102 Pa. 481.</p>

A. C. Scott purchased of William Hart an oil property leasehold for $10,000, for which he gave eight judgment notes for $1,000 each, and one for $2,000 secured by mortgage upon the property, upon the representation that the property was free and clear of encumbrances, except one mortgage w'hich would be paid. This encumbrance was not paid, and Scott was compelled to pay the same.

<p>The question, What application was made of a voluntary payment by the parties to it? is for the jury; and their finding, if supported by sufficient evidence, cannot be disturbed.</p> <p>Note. — The debtor may direct the application of payments to a particular indebtedness. Smuller v. Union Oanal Co. 37 Pa. 68. Where the ap~ plication is denied by the creditor, the question is for the jury. Moorehead v. West Branch Bank, 3 Watts & S. 550; Lingenfelter v. Williams, 8 Cent. Hep. 425, 9 Atl. 653. So, the manner in which the creditor applies the payment, in the absence of a direction by the debtor, must be passed upon by the jury as a question of fact. Dickinson College v. Church, 1 Watts & S. 462.</p>

Certiorari sur appeal from a decree of tbe Common Pleas of Bedford County reversing domestic attachment proceedings had before a justice of the peace. M. A. Bowden gave to the firm of Moore & Haderman, composed of W. F. Moore and K. C. Haderman, a promissory note for the sum of $73.19. At the time the note was executed Mrs. Bowdon was a married woman carrying on a separate business under the act of 1872.

<p>Error to the Common Pleas of Potter County to review a-, judgment for defendants in an action of ejectment.</p> <p>This action was brought by J. W. Stevens against Wm. M.. Brown, A. F. Dodge, and Samuel Metcalf, to recover possession of a tract of land in Plarrison township, Potter county. Met-calf and Dodge filed disclaimers, and Brown appeared and pleaded not guilty.</p> <p>The following are the facts substantially as found by the-referee:</p> <p>It was admitted that on May 17, 1879, title to the land in-controversy was in George Fox and the executors of Sobieski Boss, and that said owners did on May 17, 1879, enter into a. •contract for the sale of the land in dispute to Metcalf. Metcalf never paid anything upon the contract. In March or April, 1882, three payments upon the contract being long past due, Metcalf interceded with Dodge to pay the amount of the contract and the judgment liens upon his interest, Dodge to take the title to the land and give Metcalf a chance to pay and re•deem the same. As one of the steps in carrying out this arrangement a quitclaim deed for this land was executed by Metcalf i» Dodge and given to him. Dodge, finding the amount due upon the contract and judgment liens to be much larger than he had been led to believe they were, refused to have anything more to do with the land, and returned the deed to Metcalf. Metcalf informed the agent of Fox and Boss that he could not pay for the land, and that they would be obliged to take it back; and it was placed in the hands of their attorneys, who were directed to close the same out in the shortest and best way possible, with least expense.</p> <p>In pursuance of these instructions an action of ejectment was instituted against Metcalf to enforce specific performance of •said contract for the land in dispute. During the pendency of this action Stevens went to the office of Fox and Boss and saw their agent about these proceedings, saying to the agent that he understood that they had brought ejectment against Metcalf; that he had judgments against Metcalf for $500 or $600, and ••asked the agent what he was to do to protect himself. The .agent replied that he supposed that he, Stevens, might pay the purchase money and take the lot.</p> <p>An amicable judgment in ejectment was signed by the plaintiff’s attorneys and by the defendant, Metcalf; the defendant ■confessing judgment imfavor of the plaintiff, for the land described in the writ, to be released on payment of the sum of •'$1,173.34, with interest and costs within ten days from the date thereof; the confession to have the same force and effect as a verdict of a jury in an action of ejectment to enforce the specific performance of a contract, with leave to plaintiff to issue habere facias, on failure of defendant to make payment at the time the payment becomes due, without application to the court for the purpose. Judgment was duly entered thereon. The sum of $1,173.34 was the full amount of the contract and interest, and by the terms of the contract one half of the same was due at. the time of the said confession. This confession of judgment was signed by Metcalf for the purpose of saving further costs;. he did not expect to be able to make the payment, and there was-no promise of any consideration whatever for his signing it.</p> <p>In procuring said confession, and in all the proceedings con-, nected with said case, the parties, their agents and attorneys,, acted in good faith and without intent to defraud anyone. At the time of the confession of this judgment the land was worth from $1,800 to $2,000, and J. W. Stevens was a judgment creditor of Metcalf to the amount of $500, and there were other judgments against Metcalf to the amount of $300, all of which, were valid liens against Metcalf’s equitable interest in the land. The defendants Metcalf and Dodge knew this, and Brown knew that there were judgments, but did not know the amount.</p> <p>July 29, 1882, a writ of habere facias possessionem was issued, and the same was returned executed by the sheriff, August 1, 1882, by removing the defendant, etc., and putting the plaintiff, by the agent, in possession. Dodge took the possession from the sheriff, acting upon behalf of the plaintiff. William M. Brown was present at the time. Immediately after the execution of this writ Metcalf again entered into possession of the house on the land, under an arrangement with Dodge that he should leave on ten days’ notice. July 26, 1882, a levy was duly made upon this land by virtue of a fi. fa., issued upon one of the above-mentioned judgment liens, in favor of Stevens against Metcalf. This writ being returned with said levy, a vend. ex. to sell the same was issued, and a sale made thereon of the land in dispute, December 12, 1882, to J. W. Stevens, for $15, and the money, applied on the costs. A deed was duly executed and delivered in pursuance of this sale.</p> <p>On August 2, 1882, Fox and Boss, as agents for the estate,, sold this land by contract to Brown, and he went into possession of the land. This sale to, and purchase by, Brown was bona fide without intent to defraud anyone.</p> <p>Upon these facts the referee found in favor of defendants and against plaintiff, and the case came to this court on writ of error.</p> <p>The least concert or collusion between the parties to an illegal transaction makes the act of one the act of all. Confer v. McNeal, 74 Pa. 112.</p> <p>Fraud may be inferred from facts clearly proven leading to that conclusion. Jackson v. Summerville, 13 Pa. 359; Kaine v. Weigley, 22 Pa. 179.</p> <p>The referee erred in finding, as matter of law, that the facts found by him do not amount to a constructive fraud upon the judgment creditors of Samuel Metcalf. In determining this question the referee relies upon the cases of Damon v. Bache, 55 Pa. 67, 93 Am. Dec. 730, and Price’s Appeal, 42 Phila. Leg. Int. 415, as authority for his ruling. An examination of these cases will at once demonstrate that there is no similarity in this case to either of them, and that the case at bar is identical with Forrester v. Hanaway, 82 Pa. 218.</p> <p>The following language in the latter case is peculiarly applicable: “That if an action of ejectment . . . had been suffered to take its regular course, ending in a conditional verdict, or if the confession of judgment had stipulated for a payment at some future time, as in Damon v. Bache, 55 Pa. 67, 93 Am. Dec. 730, the rights of the lien creditors and the purchaser under the same, as well as the rights of [the plaintiff in ejectment] could have been duly protected and enforced.”</p> <p>After execution and levy on real property in possession of the debtor, with a view to defeat creditors, he cannot transfer the possession, even to the real owners. Stahle v. Spohn, 8 Serg. & K. 317; Stauffer v. Lancaster County, 1 Watts, 300, 26 Am. Dec. 69.</p> <p>The supreme court can only hear and determine questions of law arising from the rulings of a referee; but cannot go behind his findings of facts, which findings are as conclusive as those of a jury. Lee v. Keys, 88 Pa. 175; Brown v. Dempsey, 95 Pa. 243; Philadelphia v. Linnard, 97 Pa. 242.</p> <p>There can he no constructive fraud where a party is acting in good faith and pursuing a legal remedy in the usual way. Price’s Appeal, 42 Pliila. Leg. Int. 415, S. C. C. P. Rep. 79.</p> <p>This case is clearly within the rulings in Damon v. Bache, 55 Pa. 67, 93 Am. Dec. 730; Maxson’s Appeal, 75 Pa. 176; Price’s Appeal, 42 Phila. Leg. Int. 415.</p> <p>In an action of ejectment on an equitable title, to entitle plaintiff to recover he must not only tender the money due before suit brought, but must also have it in the court ready to be paid in the event of a verdict for him. Gore v. Kinney, 10 Watts, 139; Gregg v. Patterson, 9 Watts & S. 197; Bell v. Clark, 111 Pa. 92, 1 Cent. Rep. 852, 2 Atl. 80.</p>

The auditor found the following facts: Joseph Brogly died November 2, 1880, leaving a will in which he provided: “I give and bequeath unto my dear wife, Konigunda, all my estate, real and personal, and wheresoever found at the time of my death, giving her full power and authority to sell the whole or any part of my real estate, and execute deed or deeds therefor.

The facts are stated in the opinion of the court below by Livingston, P. J-.: “On August 17, 1885, a petition was presented and filed, praying this court to appoint viewers to view and vacate part of -a public road in Drumore township, at Mechanics Grove, Lancaster county, and to lay out another road in lieu thereof. On August 20, 1885, viewers were appointed, to whom an order was issued.