Volume 2 — Walker's Pennsylvania Reports (1853–1887)

134 January Term, 1883. This was an appeal by W. W. Barclay, administrator of Abram Kerns, deceased, from an order of the Orphans’ Court fixing his compensation as such administrator, &c.' The following is an extract taken from the Auditor’s report: 1.

Appeal and writ of error to Common Pleas No. 1 of Allegheny County : Nos. 85 and 86 November Term, 1881. This was a proceeding to assess damages brought by N. J. Keller, to the use of Jane Hawley, against The Pittsburg & Lake Erie Railroad Co. The viewers made a report assessing the damages at $1,260.

2, of Philadelphia County: No. 149 January Term, 1884. This was an action of debt upon an insurance policy, brought by Ered. K. Swartz and Esiabella, his wife, to the use of Beck and Miller, against the Universal Fire Insurance Co. The policy of insurance had by mistake been made out in the name of Fred. K. Swartz, instead of his wife Esiabella.

277, Jan. Term, 1884. This was a bill in equity, brought by the appellants, against William Jessup, trustee of Joseph Bellows, deceased, and others, to declare null and void a lease for 999 years;… Held: that the decisions of the majority of the trustees will be binding on the rest, for otherwise, says one of the writers, it would be in the power of one dissenting trustee to embarass'and possibly disappoint the working and object of the trust.

121 Jan. Term, 1884. This was an action in debt, brought by ' the Commonwealth of Penna., at the suggestion of Elwood Craven, assignee of Sarah L. Craven, Elwood Craven, Hugh L. Craven, Margaret Van Court, and Howard J. Reading, and Martha J. Reading, his wife, to the use of Martha J. Reading vs. Griffith Miles, upon the bond of Samuel Craven, as administrator of the estate of Thomas,B. Craven. Griffith Miles was one of the sureties.

139, July Term 1883. Charles H. Holden was an owner of a house and lot in Washington, and on Oct. 13,1870, executed a note for $5,000 to John B. Wheeler. Held: that a mortgagor or his assigns has a legal right to use and] occupy the land until the mortgagee asserts his right of entry* for the condition broken by action, or by actually taking possession.

292 Jan. Term, 1884. This was a case of capias in tresspass, in the case sur slander. Henry E. Wolfe, the plaintiff, on the 27, Apr. 1883, caused a capias ad respondendum to issue out of Common Pleas of Lan- • caster County, having first made and filed an affidavit, as required by the rule or court, and on the same day, John H. High, Sheriff of said county, returned said writ of capias ad respondedum, C„ C. et B. B. in the sum'of$20,000.

<p>A freeholder arrested in a capias ad respondendum in slander, can have the-writ abated with costs.-</p>

360, Jan. Term, 1884. On May 16th, 1883, a.petition for a road view, was filed, and viewers were appointed. On Sept. 12th, ’82, the report was filed, and confirmed Nisi. On Dee. 10th, ’83, Jacob Degel and- Ruben C. Kulp filed exceptions, among which were 3d., “that part of the proposed road, as reported by the viewers, is laid out on the bed of three old roads, opened for the public use, and travel in this county. 4th. exception.

No. 175 July Term, 18.83. The action below was assumpsit brought by McConn against the Allentown School District. The School Board had contracted with Colt & Spence to introduce lieating apparatus into the school, subject to the approval of J. C. Sidney, the architect. The apparatus did not heat satisfactorily, and Colt & Spence were so notified, but failed to perfect the work. They had drawn all but $1,900 of the contract price.

13, Jan. Term, 1884. This was an appeal from the decree of the Court awarding damages for land taken by the Catawissa Railroad Co. to Job P. Kirby. The facts are set forth in the opinion of the Court, which was delivered on the 9th Aug., 1833, per Bucher, P. J. The essential facts are: 1.

53 July Term, 1884. This was an action of assumpsit, brought by Vm. E. Adams, who survived Peter Uhler, who were partners lately trading as Uhler & Adams against Sydenham L. Uhler, who was the son of Peter Uhler.

No. 72 Jan. T., ’84. On June 3rd, 1857, the plaintiff insured his barn and contents In the defendant Co. for $1,275. In Oct., 1866, the barn and contents were destroyed by fire, and this action was brought upon the policy to recover damages for the loss. The defendant upon the trial, alleged as a matter of defence, that the plaintiff had failed to pay his assessments, when due, and that such failure worked a forfeiture of his policy.

Common Pleas of Perry County. No. 186 July Term, 1888. This was an action of trespass quare clausum fregit to recover damages for certain iron ore and the point involved, can be best understood by reference to the following diagram: The lines N. S. and A. B. are the division lines as claimed by the parties' respectively and the other lines are the boundaries of the tract.

No. 431 January Term, 1884. On December 18, 1883, Patrick O’Hara filed a mechanics’ lien for $17.00 against John Johnson, S. C. Rhodes and William Jones, owners, and O. B. Jordan, contractor. On Feby. 4thr 1884, the Court struck off the lien in the following opinion per Brown, P. J. The Act of Assembly of April 8,1868, P. Laws 752 giving a. lien to mechanics, laborers, etc. on leasehold estates in the County of Venango, was extended to Warren County in 1869, P. Laws 410.

No. 59 Jan. Term, 1883. This is an appeal from the decree of the Court distributing money in Court, arising from the Sheriff’s sale of the real estate •of Henry Hunsicker. Held: that the wife could not. claim the benefit of the Act of April 9th, 49 for herself, and that the defendant was too late. Exceptions were filed to the-report of the auditor, the Court reversed his ruling, and ordered $290 to be paid to the defendant, in the following opinion delivered Sept. 18,1882:

3 of Phila. County, No. 47, Jan. Term, 1884. This was an action brought by Bernard E. Brooks and Susanna Brooks, his wife, to recover damages for. the death of their daughter, Elizabeth R. Brooks, who was run over by an express, train of the Company, defendant, at the point where Bridge street near Bridesburg crosses the railroad. The accident occurred on March 29,1882, at 9 o’clock in the «morning.

No. 269, Jan. Term, 1885. This was an action of trespass on the case of sur waste, brought by C. C. Mills against W. Ii. Christian. On Sept. 5th, 1877, W. S. Eord owned a lot of land, containing about 1-5 of an acre in Lacey ville. C. C. Mills entered a judgment against Eord, on that day for $262.14. Ou Feb. 13, ’79 W. S.-Eord and wife conveyed to Leonard, who, on- -the 2nd July, ’79, assigned the lot to 'William IL Christian, the plaintiff in error.

408 Jany. Term, 1884. This was an action of ejectment brought by Solomon Close against The Lehigh and Wilkesbarre Coal Co. The case was tried by the Court without the intervention of a jury before Judges Pershing and Green and the facts found by the Court, and the opinion of the Court upon the facts is as follows per : Green, J. This is an action of ejectment for a tract of land in Kline Township, containing 162 acres and 70 perches, known as the Eocht and Shappell tract,…

3 of Philadelphia County; No. 361 January Term, 1880. This was an action of tresspass on the case brought by The-Philadelphia Wood Paving Co. against John M. Bickel, the president of the Co.; William M. Bickel, hi* brother, the secretary and treasurer of the Co., and John F. Bickel, the son of' John M. Bickel.

468 January Term, 1885. This was an action of partition brought by Lazarus D. Shoemaker against Benjamin M. Everhart, James B. Everhart, John R. Everhart, Thomasine M. Everhart and Mary T. Everhart. .

231 July Term, 1883. This was an attachment execution against Cyrus Shirk, as ■garnishee of Jacob Kalbach. Conrad Loos died in 1855, leaving widow and four children, among which was Eliza, married to Cyrus Shirk, the garnishee. He (Loos) owned among other properties, a farm in Lebanon County.

1Certiorari to Quarter Sessions of Montgomery- County, No. 194 January Term, 1885. ' In this case viewers and reviewers reported in favor of erecting an independent school district; the report of the reviewers being similar to the report of the viewers, and was as follows, viz: The report of the undersigned commissioners Jeremiah B. Larzelere and John W. Schall, two of the commissioners appointed by the annexed order of Court.

254 Jan. Term, 1883. This was a Bill in Equity filed by the Catawissa Railroad Company and the Phila. and Reading R. R. Co., lessee vs. The North and West Branch- Railway Co., to prevent a grade crossing near Rupert. The Catawissa Railroad Co. had this road in operation long before the organization of the defendant Co. In the bill they alleged that the proposed crossing complained of was a dangerous one, and could be reasonably avoided.

May Term, 1877. On March 26, 1877, the' will of Elizabeth Gittleman was admitted to probate by the Register of Lancaster County; and letters testamentary were thereupon issued to B. B. Elickinger, the executor. On April 10,1877, Henry Gittleman appealed from the decree of the Register, to the Orphans’ Court, alleging that the decedent was not of sufficient mind to make a will, and that she had been unduly influenced, and asked for an issue.

358 January Term, 1885. The chai’ge of the Court was as follows per Rockefeller, P. J. Gentlemen of the Jury : — This is an action brought by George ~W. Strine, late Sheriff of Northumberland County,… Held: that an act passed the. 22d May, 1722, is not obsolete. That act was more than one hundred years old.

<p>Error to Common Pleas of Northumberland County; No. 358 January Term, 1885.</p> <p>The chai’ge of the Court was as follows per</p> <p>Rockefeller, P. J.</p> <p>Gentlemen of the Jury : — This is an action brought by George ~W. Strine, late Sheriff of Northumberland County, against the County of Northumberland to recover a balance due him as an allowance for boarding prisoners, kept by him in the Northumberland County jail, from the first of March, 1878, to the 1st of October of the same year.</p> <p>A bill has been offered in evidence and admitted by both parties to be correct so far as it shows what prisoners were furnished their board by the Sheriff and the number of days that he boarded each one, and about that there is no dispute. The only dispute in the case is, the amount per diem the Sheriff is entitled to recover from the County for the board of these prisoners.</p> <p>On the 11th day of April, 1856, the Legislature passed a law enacting that the Sheriffs of the several Counties of this Commonwealth, excepting the Counties of Allegheny and Philadelphia, to whom ai-e committed the custody of prisoners, shall receive such allowance for boarding said prisoners as may be fixed by the Courts of Quarter Sessions of the respective Counties not exceeding twenty-five cents per day for each prisoner. Any provision in any other Act of Assembly to the contrary notwithstanding.</p> <p>The counsel on both- sides have stated to the Court that they are unable to find any other act of Assembly passed since that, time changing the amount to be allowed the Sheriff for the keeping or boarding of prisoners. This is a general law and applies through the whole State. Acts of Assembly have from time to time been passed providing for the payment or allowance to the Sheriffs of different- Counties for the boarding of prisoners,, but there does not seem to be any special law for this County ever to have been passed, either before or since 1856. Therefore so far as any Act of Assembly is concerned, this County is subject to the provisions of the Act of 11th of April, 1856.</p> <p>"We are told that in 1859, three years after the passage of this general law the Court fixed an allowance of thirty cents per diem for the boarding of prisoners to be paid to the Sheriff', and there is in evidence in this ease an order of Court, made on the 14th day of August, 1867, fixing the daily allowance at the sum of fifty cents per diem. Doubtless the Court supposed there was a law of this State, or at -least a special law, applicable to this County, authorizing the Court to make that order. But so far as the Court is aware at present no such Act of Assembly exists. "When this order of Court was made by my predecessor, Judge Jordan, Sheriff Beckley tells me, that the price of provisions was very high ; that he was obliged to pay one dollar and seventy-five cents a bushel for potatoes, and send to Philadelphia for them at that. No doubt the Court thought at that time it was but an act of justice to the officer that he should be paid this amount, and the people of this County no doubt were satisfied with the action of the Court.</p> <p>It seems that from that time until the time that the present Sheriff now claims, the Sheriffs were uniformly allowed this amount, fifty cents per diem, by the County without objection. But whilst this is so, we cannot see that an order of Court, or the act of the County Commissioners in paying more than the amount fixed by law, makes legal the plaintiff’s claim in this case.</p> <p>Therefore for the present I charge you, that all the Sheriff of this County has the right to receive for the boarding of prisoners is twenty-five cents per day, providing the Court makes an order fixing that amount.</p> <p>The bill and the receipt upon it in evidence shows that the Sheriff has received the whole amount of his bill, less the sum of $1,280:85. A bill was made out at the rate of fifty cents per day, the County Commissioners refused to pay at that rate, and deducted from it the sum of fifteen cents per day, allowing the Sheriff the sum of thirty-five cents per day, and the Sheriff having received pay for the boarding of the prisoners at the rate of thirty-five cents per day, if by the law he is not entitled, and was not at the timo to receive more than twenty-five cents per day, it follows, of course, that he has been paid in full.</p> <p>Therefore we instruct you to find a verdict in favor of the defendant.</p> <p>The verdict was for the defendant. Strine then moved for a new trial, but the Court refused a new trial in the following opinion per</p> <p>Rockefeller, P. J.</p> <p>The only question in this case is whether the act of 11th of April, 1856, P. L. 314 has become obsolete, at least as to Northumberland County. That it was overlooked by the Court in 1867, is clear, and the Commissioners of the County have disregarded it ever since. The order was made and practice continued about ten years before the puesent claim arose. On the 29th of March, 1819, 7 Sm. L. 228, the Legislature enacted a law providing for the compensation of auditors. That law was never adhered to in practice in the Courts of this State. And says Woodward, Justice, in Porter’s Appeal, 6th Casey-498, “it seems it was overlooked by the Supreme Court in the case of Baldwin’s Estate, 4 Barr 248, and perhaps in other cases.” Yet in Porter’s Ap>peal it was decided that the act was 'not obsolete. This was a case of nonuser and overlooking by the Courts of a statute, for forty years. Compensation for board of prisone Is is part of the officers emoluments of office and when fixed by law, neither the County Commissioners or Courts have any power to change it. Because the same officer and his-predecessors in office have for a few years been allowed more than the amount fixed and limited by law, is, we think, no reason why the County is to continue payment of such excess. There was a time just after the war when perhaps the rate of compensation as fixed before the war, was unjust and insufficient. But now provisions are low again. In 1865, P. L. 39, 1866, P. L. 88,1867, P. L. 31 and April 1,1868, P. L. 52, the Legislature increased the fees of County officers twenty per cent.., but in each year, the time fixed for such in creases was limited to one year. Doubtless that was to meet the wants and requirements of the times for the time being.</p> <p>I cannot say therefore, that the act of 1856 is obsolete and invalid, and is not the law in this County, notwithstanding all that has been done by the Court aud County Commissioners. In the case of Wright, surviving partner of Wright,'deceased, vs. Crane, 13 S. & R,, 417, decided in 1825; the Supreni) Court held, that an act passed the. 22d May, 1722, is not obsolete. That act was more than one hundred years old. Chief J ustice Tilghman says:. “It must bo a very strong case to justify the Court in deciding, that an act standing in the statute book, unrcpoaled, is obsolete and invalid.” ' This remark is quoted by the late Chief Justice Woodward in the ease of Porter’s Appeal. It seems that it is only, “when from a change of times and manners, an ancient sleeping statute would do great mischief if suddenly brought into action. When a long practice, inconsistent with it, has prevailed, and especially where, from other and later statutes, it might fairly be inferred, that in the apprehension of the legislature the old one was not in force, that a statute can be regarded as obsolete. I do not think this is the case with the act of 1856. It cannot be said that a practice for ten years is a long practice. It cannot be said that its provisions are unsuited to the present times, with wheat at the prison door at 75 cents per bushel; potatoes, &c., in proportion. However, such, perhaps, was not the ease when the plaintiff’s claim accrued in the present case, but we are now considering the question of an ancient statute obsolete on account of nonuser, a change of times, manners, &c. I am of opinion, that unless an act of assembly can be found changing the law of 1856, as to this County at least, the plaintiff will have to be content with what he has already received, which is' more than the law allows.</p> <p>The motion for a new trial is overruled.</p>

No. 418, Jan. Term, 1884. This was an action of ejectment brought for 100 acres of land in Mead Township, which had been owned by Samuel McCall.

No. 139 Jan. Term, 1883. The following statement of facts were agreed upon in the Court below: It is agreed that the following facts be stated on the record, and on which is to be reserved the… Held: that this discharged the surety on the administration bond, so far as her distributive share was concerned.

No. 159 January Term, 1885. This was an action on the case brought by Mrs. Louisa E. Merrill against L. S. Norton, Ex. GrALBRAITH, P. J. As the question is presented, I am. obliged to decide this as so, matter of law, and I am of the opinion that there' is nothing; here for the jury. Taking all the evidence on part of plaintiff,, Mrs. Merrill, to be true, there is no proof of negligence on the* part of Col. Curtis.

<p>• Where an attorney, acting as an agent to loan money, takes a judgment note ¡as security, and gives it to his principal, instead of entering the judgment; he .is not liable for a loss caused by the omission to enter the note.</p>

No. 110 January Term, 1885. The facts of the case appear in the charge of the Court which was as follows: Gentlemen oe the Jury : — The issue which you Lave been sworn to try arises in an action on the case brought by Edward Weiss against tbe Williamsport and North Branch Bail road. Company. This action is brought by the plaintiff' to recover damages which he alleges he has sustained by tbe negligence of. tbe railroad company.

No. 22 Jan. Term, 1885. The jury in this ease decided in favor of the plaintiff. A number of witnesses were subpoenaed, who attended Court, but were not called. The costs belonging- to these witnesses were ■ put in plaintiff’s bill. The defendant excepted to these costs, and demanded a retaxation. The Prothonotary decided that the witnesses were entitled to their fees.

<p>No appeal lies, from an order of Court, fixing the number of witnesses, who were subpoenaed, but not examined, whose fees were to be taxed as costs, against ^he losing party.</p> <p>The Court may require counsel to certify upon their honor that they considered the unexamined witnesses as material when subpoenaed, before allowing the fees as part of the costs.</p>

No. 256 Jan. Term, 1870. This was a proceeding to assess damages to the land of John Turner, sustained by the construction of The Connecting Railway.

No. 148 January Term, 1885. This was an action on the case to recover damages to the surface of land, by mining out the coal.

<p>Error to Common Pleas of Somerset County. No. 148 January Term, 1885.</p> <p>This was an action on the case to recover damages to the surface of land, by mining out the coal. The deed under which the plaintiff below claimed, contained the following reservation: “The party of the first part reserve all the coal, iron ores, fire-clay and all other minerals and all other mineral substances both liquid and solid under the surface of said land except limestone.”</p> <p>The Court, inter alia charged the jury, as follows:</p> <p>(Gentlemen oe the Jury : — This is an action on the case to recover damages for an injury to the surface of a tract of land owned by Josiah M. Hay. The damages sought to be recovered here are not damages arising from any vindictiveness or maliciousness ; but they arise from alleged negligence on the part of the owners of the coal, with which the land was underlaid, in taking it out, whereby an injury resulted to the owner of the surface. The facts in the case are fresh in your minds, and they have been ably and thoroughly discussed. Our charge will therefore be fully understood in our answers to the points submitted by the ■counsel, and our rulings on the law and the measure of damages.</p> <p>We have been asked by the counsel, for the defendants to answer certain points, which we now do.</p> <p>First. If the plaintiff, at the time of the purchase of the tract of land on which the alleged injury is charged to have been committed, knew that the Salisbury and Baltimore Railroad and ■Coal Company, the parties in said deed, were about to mine the coal on the said land, then he took the title to the surface subject to whatever injury would be done in the careful mining of the coal on said land; and if the jury believe that the defendants being the lessees of said company, mined the said coal in a ■careful manner, then the defendants are not responsible, even if some injury was done to the land in mining the same.</p> <p>Answer. This is a broad point, and if affirmed, would excuse an injury resulting from careful mining. We refuse this point. He is not excused from paying damages, if damages follow, no matter how careful he was in mining.</p> <p>Third. If the jury believe that Hay, at the time he purchased the surface of the tract of 42 acres and 42 perches, was informed by Aspach, President of the Company, that mining the coal would let the surface down several feet, then Hay took the land with the knowledge that the surface would be injured, and is not entitled to recover in this case, even if the jury believe that the surface was injured.</p> <p>Answer. The deed was the last act of the parties in the negotiation, the contract referred to was merged in the deed, and the deed itself does not except from the grant the implied right of surface support which passed with it. Hence we refuse this point.</p> <p>Fourth. If the jury believe that the coal underlying the ground in dispute could not be removed without letting down the surface, although mined in a careful and skillful manner, under the pleadings in this case the plaintiff is not entitled to recover, even if the surface was injured by the ground falling in.</p> <p>Answer. We refuse to affirm this point.</p> <p>Fifth. That the plaintiff having shown a deed from the Salisbury and Baltimore Railroad and Coal Company to him for the land, and the lessees having shown a lease by the Company to the defendants, the liability, if any, would be on the part of the Company, and not on the lessees; and the verdict must he for the defendant.</p> <p>Answer. We refuse to affirm this point.</p> <p>We now come to the points submitted by the plaintiff in the case.</p> <p>First. That if the jury shall find from the evidence that J. M. Hay is the owner of the surface, and the defendants the lessees of the coal under the said surface, and that the defendants, or their employees mined, took and carried away the coal underlying the said surface, and by reason of their mining and removing the coal from under the said surface, the surface caved, sunk or fell in they are responsible for all damages caused thereby to the owner of the surface without regard to the manner of mining, Avhether skillful or negligent, the owner of the smfface is entitled to actual, absolute support of his laud at the hands of the operator of the mines.</p> <p>Second. That if the jury shall find that the surface of a portion of plaintiff’s land sunk, caved and fell in by reason of-the removal of the coal from beneath it by the defendants by not leaving sufficient actual support, or not keeping up sufficient posts and supports, the plaintiff is entitled to recover such damage as he has Sustained by reason of the surface so destroyed, the additional fencing, if any,'made necessary thereby, and the shape in which it throws the balance of the tract of which it is a part.</p> <p>Ansayer. We answer these points in one in the general charge which now follows: Where ,one grants the surface of land and reserves the coal and minerals, as in the case on hand, an implied right of support to the surface passed with the grant to the grantee; and neither the grantor nor his lessee may mine and remove the coal and minerals without leaving actual, absolute support to the surface, unless by apt words in the deed, the implied right of support has been excepted from the grant. In the ease on trial there is no such exception in the deed, and the right to surface support passed with the deed to Mr. Hay; the grantor, his lessee, or any one holding under him must therefore, in mining, leave sufficient support to sustain the surface. The surface belongs to the plaintiff, the coal to the defendants and those under whom they hold. They may take all the coal, if they ’ can do so without, causing a subsidence of the surface ; but they must support the surface by actual, absolute support by leaving a sufficiency of ribs and pillars to hold it up, or by the coal itself, and if they take it all out, they must provide actual and absolute support in some other way. The failure to so sufficiently support the surface is negligence and renders the owners and workers of the mine liable to damages for the injury sustained. The owner of a mine has a right to mine his coal in any ordinary and reasonable way so long as that does no injury more than that which necessarily arises from the removal of the coal; but in this case the skillfulness of the mining is not involved, the case turns upon the question whether the surface was sufficiently supported by an actual support which holds up the surface and keeps it from subsiding. If the jury, from the evidence, find that the surface has not been kept up by actual and sufficient support, then damages follow.</p> <p>September 25,1884; verdict for plaintiff for $350.00.</p> <p>Defendants below, then took this writ of error, complaining of the answers of the Court to defendant’s third, fourth and fifth points.</p>

No. 5 July Term, 1884. Ip equity. The opinion of the Court below upon the application of the Philadelphia and Reading R. R. Co. for a preliminary injunctiou against the Philadelphia, Norristown and Phoenixville E. E, Co. was as follows per: Boyer, P. J. The-plaintiffs in their bill pray that an injunction preliminary until hearing, and perpetual thereafter, be issued, restraining the defendants from entering upon any part of a certain property of the plaintiffs at West…

No. 256 January Term, 1884. This was an appeal by the Overseers of the Poor of West Perry Township, Snyder County, from an order of removal of' Caroline Gordon and family, who had become chargeable to Monroe Township, Juniata County, from which they were-removed to West Perry Township.

This was a proceeding to assess damages, for taking land, and injuring‘property of the plaintiffs.

' Appeal from Common Pleas of Berks County. No. 9 January Term, 1885. . This was an appeal by Christian Stolz from a decree of the Court awarding a fund realized by a Sheriff’s sale of the property of the Union Foundry and Manufacturing Co. to Keppelman to use of Wanner & Streng.

No. 433 January Term, 1885. Robert F. Borckman had instituted an action for divorce against Elizabeth B. Borckman to No. 30$ May Term, 1884, on the ground of adultery. On June 4, 1884, a rule was granted upon petition and affidavit of respondent denying the allegations in the libel, to show cause why libellant should not pay counsel fees and alimony, pendente lite.

No. 235, Jan. Term, 1884. Mahlon R. Ambler brought a bill in equity against The, Pennsylvania Schuylkill Yalley Railroad Company for an injunction. He owned a farm at the mouth of the Perkiomen Creek, Providence Township, Montgomery County. Upon it are his dwelling house and farm buildings, two tenant houses, and he had 180 acres of land ; and also a ferry across the Schuylkill. On his property, he had a way from the public road to his farm buildings and ferry.

6 July Term, 1884. This was a • proceeding in equity brought by appellant to restrain'the Pennsylvania Schuylkill Yalley Eailroad Company from laying its track upon Lafayette street is the Borough of Norristown ; the appellant claiming that it owned the land to the centre of • the street, by virtue of owning lots fronting on said street, and that in such case the Pennsylvania Schuylkill Yalley Eailroad Company could not occupy its property.

No. 52 July Term, 1884. This was an action of quo warranto in the name of the Commonwealth against George W. Navle and Andrew G. Sturrock, to inquire by what right they held the office of Town Councilmen for the Borough of Wellsborough, and the suggestion was that by the Act of 23 Jan., 1873, P. L. 98, it was enacted by section 3rd, that at the next annual election for the borough officers, in the said Borough of Wellsborough, three persons shall be elected to serve as…

No. 162 January Term, 1886. Charles E. Meurer was married at Strasburg, in Germany, about April 26,1844 to Marie Henrietta Schmitt, who, at that time, had two children living, Edward E. I., horn about July 31st, 1839, and Charles, horn about May 30th, 1843. These two children were raised and educated by Charles E. Meurer, and acknowledged as such and took his name.

Appeals from Common Pleas No. 4, of Philadelphia County. Nos. 199, 200, 201 and 202 January Term, 1884. This case arose from the distribution of a fund produced from a Sheriff’s sale of the property of Philip H. Ertheiler. The following extract from the report of the auditor sets forth the facts.

No. 60, Jan. Term, 1885. This cause was an amicable action against the Sheriff of Montgomery County, and was submitted to a referee in the following .agreement: And now, to wit, November 23, 1883, it is agreed that an Amicable Action in the above form be entered in the Court aforesaid, and be deemed to be depending in like manner as if a summons had been regularly • issued, been served, and so returned.

No. 52 Jan. Term, 1884. This was an action of trover and conversation brought by Frank S. Schaeffer against Daniel K. B. Kauffman for certain corn fodder. The charge of the Court was' as follows, per: Albright, P. J. Gentlemen of the Jury :• — -The action you have been called to try, is one brought by Frank S. Shaffer against Daniel K. B„ Kauffman'. It comes into this Court under an appeal from a Justice of the Peace.

November Term, 1875. There was a verdict for plaintiff in an action for trover, but the Court granted a new trial in the following opinion per: Trunkey, P. J. The gist of the evidence is as follows : Catlin was Secretary of the plaintiff’s branch office, at Oil City, and also agent for the plaintiff.

<p>Trover will not lie to recover the amount of premiums on policies of life insurance received by defendant as agent of plaintiff for which he was to receive a percentage.</p>

No. 20 July Term, 1884. The facts appear the opinion of the Court delivered March 22, 1884, by Seeley, P. J. On May 25,1881, Hon. C. P. Waller then being President Judge in this district, it was decreed, “that John M. Smith,.

No. 225 Jan. Term, 1884. This was an action, brought in the Court below by James Allen against A. O. Tinstman, doing business as A. Overholt & Co., and J. M. Dushane, security. Suit was brought on a note for $2,990.80, signed by A. Overholt & Co. and J. M. Dushane as security. It was dated 17th day of Jan., 1874, and due in one year.

No. 166 January Term, 1885; This case arose from a case stated as- follows: By deed dated the 15th day of December, A. D. 1881, and recorded in the office for recording deeds, etc., in and for said County, in Deed'Book No. 11, page 58, etc., the defendants above named, together with the heirs and devisees of said Jane Ann Egertou, deceased, conveyed to the plaintiffs above named, certain lands in the Borough of Archbald, in said County.

No. 119 Jan. Term, 1884. This was an appeal by John W. Barnett, Silas Hess, and David Caldwell, from a decree of the Court, distributing the proceeds of the Sheriff’s sale of personal property of Spahn, Hess & Co., and the personal property of Silas Hess.

<p>Appeal from the Common Pleas of Pluntington County. No. 119 Jan. Term, 1884.</p> <p>This was an appeal by John W. Barnett, Silas Hess, and David Caldwell, from a decree of the Court, distributing the proceeds of the Sheriff’s sale of personal property of Spahn, Hess & Co., and the personal property of Silas Hess. In the beginning of April, 1882, Phillip Spahn, Silas Hess, and John "W". Barnett, associated themselves together to carry on the business of manufacturing lumber, under the name and style of the “Spahn, Hess & Co.” Phillip Spahn, having a half interest, and each of the other partners a fourth interest. They purchased as a firm, about April 22, 1882, a steam-engine, and saw-mill from the Harrisburg Car Manufacturing Co., for which they were to pay .$2000. They paid $300 in cash, and gave a note for $200 payable in 60 days, another for $500, at 5 months, another for $500 at 10 .months, and one for $540 in 16 months. These notes were all ■dated, April 22,1882, and were discounted by the First National Bank of Harrisburg. These notes were signed by the partners 'individually. The $200 note was paid' when due. The .$500 note due Sept. 25,1882, was not paid, but $100 was paid on .account, and the firm gave a new note, at 60 days for $417.41, which note was signed by each partner, individually, and waived the benefit of the exemption law. This note was not paid, but a judgment note was given in place of it, when it fell due.</p> <p>This judgment note not having been paid, at maturity, the First National Bank of Harrisburg placed it in the hands of their attorney at Harrisburg for collection, who sent it together with the $500 note due in 10 months and the $540 note due in 16 months to Messrs. Petriken andMcNeil, with instructions to do the best they could to secure the same. On the 23rd Dec., 1882, Philip Spahn, one of the members of the firm gave a partnership judgment note for $1013.98 for the two notes above mentioned, the .$500 note and the $540, less the discount for the time the notes had to run. This judgment note was signed Spahn, ITess & Co, It was not under seal, but was given for partnei’ship debt. Judgments were entered on this note, and the judgment note before mentioned, and the sheriff levied upon the personal property of Spahn Hess & Co., and also on the personal property of Silas Hess, and J ohn W. Barnett. Hess and Barnett then filed petitions, and the writ was stayed, lien to remain,and a rule granted to show why the judgment should not be set aside, as to the two partners not joining in the same. And upon the other judgment, the writ was stayed, lien to remain, and a rule was granted to' show cause why the sheriff should not exhaust the firm property,, before offering for sale, the property of individual members of the firm. The Court afterwards made an order, directing the Sheriff to offer for sale, first the property of the partnership, or firm, and when that was exhausted, to offer for sale, the individual property levied upon. Afterwards there was a levy made upon a judgment by David Caldwell against Silas Hess, and also John W". Barnett, and the Sheriff levied upon the same property, that was levied upon, under the Fi. Fa. issued upon the judgment for $417.41. On Jan. 26, 1883, the Sheriff sold the personal property of Silas Hess for $725.87, and he also sold the personal property of Spahn, Hess & Co. for $1000, and the proceeds of these sales weré referred to an Auditor for distribution.</p> <p>The following facts were found by the auditor :</p> <p>Your auditor finds that the following facts have been proven:</p> <p>That the partnership judgment note that Philip Spahn gave to the First National Bank of Harrisburg, dated December 23d, 1882, at one day, for $1,013.41 and on which judgment to No.. 128 Nov. Term was entered, was given for a partnership debt, and that it was not under seal. That the indebtedness for which this note was given was not due at the time said judgment note was signed.</p> <p>Second. That Philip Spahn signed the firm’s name of Spahn, Hess & Co., to said note without the knowledge or consent of either of his copartners, and that neither of them have ratified it, but protested against it.</p> <p>Third. That neither the Foundry and Machine Department of the Harrisburg Gar Manufacturing Go. no,r the First National Bank of Harrisburg had any notice of the alleged agreement that no member of the firm had a right to sign the firm’s name to notes unless the other members of the firm were present and •consenting to i't.</p> <p>He awarded the fund raised by the sale of the partnership property to the Harrisburg Bank.</p> <p>The Court affirmed the report absolutely, and decreed a distribution accordingly. John W. Barnett, Silas Hess and Daniel ■Caldwell then appealed and assigned for error the action of the Court in appropriating the fund, arising from the sale of the partnership property of Spahn, Hess & Co. to the plaintiff in fi. fa. No. 20 Jan. Term, ’83, and in not appropriating the fund .arising from the sale of the partnership property a sum sufficient to satisfy the interest and costs of fi. fa. No. 21 Jan. Term, 1888, .and in not distributing the-residue thereof to the several partners, -or to the creditors thereof having liens thereon, according to their respective interests in the property producing said fund, and in not appropriating the whole fund, arising from the indiv idual or ■separate property of Silas Hess to the plaintiff in fi. fa. No. 16 .April Term, 1883.</p>

No. 343 January Term, 1885. The following extract from the adjudication and distribution of the Orphans’ Court upon the accounts of the executors of Samuel Sheeler, deceased, gave rise to this controversy, viz : In the distribution of decedent’s estate it becomes necessary to put a construction on his will.

2, of Philadelphia County; In Equity; No. 123 Jan. Term, 1884. ■ The bill was filed by creditors of the firm of Morris R. Stroud, & Son, against William Stroud, the surviving partner, and against a creditor, to whom the latter had assigned the firm assets. By amendment the administrator of Morris R. Stroud, the deceased partner was added as a party complainant.

No. 363 Jan. Term, 1885. This is a scire facias tested the second day of January, 1885, issued upon a tax lien No. 7, January Term, 1885, contained in Lien Book No. 1, page 49, to recover the sum of $38.50 city tax levied by the City of Scranton on the 3d June, 1884, and filed as a lien against defendant’s property, described as a piece of land in tbe City of Scranton, being the whole of block five (5) on assessment map of the Seventeenth Ward, and particularly described by…

No. 53, Jan. Term, 1885. This was a petition 'by the Overseers of Gregg Township against the Overseers of Kelly Township on appeal from the order of removal of Lucy Plaines.

No. 368 January Term, 1885. Maria McDermot executed a mortgage to Ephraim C. Boorse. Boorse assigned to Dearnley and Schofield, who brought suit on the mortgage in the names of Isaac Dearnley and Uriah Schofield, assignees of Ephraim C. Boorse vs. John McDermot and Maria McDermot.

No. 161, July Term, 1883. This was an action of replevin brought by Jacob Bower against Peter Repsher, administrator of Joseph A. Miller, deceased, and Mary Miller, widow of Joseph Miller, deceased; for farming instruments, wagons and cattle, &c., to the value of $200.

No. 44 Jan. Term, 1885. This was an action of assumpsit by D. D. Searle, executor of Leonard Searle, deceased, against the First National Bank of Montrose to recover the value of 200 shares of the capital stock of The Bel., Lackawanna and Western R. R. Co., the certificates of which were deposited with the cashier of the bank. The cashier afterwards embezzled the money of the bank and disposed of the stock; Searle claiming that the bank was liable for the acts of the cashier.

No. 126 March Term, 1852. The facts appear in the charge of the Court which was as follows per: Jordan, P. J. This is a special action on the case brought by the plaintiffs to recover damages from the defendant, which they allege have been sustained by them, in consequence of the construction of a railroad by defendant upon or across a coal vein leased to them by David Greenawalt by lease dated Oct. 1, 1843, but executed on December 12th, 1843.

2 of Phila. County. No. 148, July Term, 1883. The Penna. Tack Works was a corporation, which was formed by Charles P. Weaver, William H. Sowers and J. G-. Ralston, and was located at Norristown, Penna. It was formed in July, 1873. The capital stock was $100,000, divided into a hundred shares of $1,000 each, of which 50 were issued to Weaver, 25 to Ralston, and 25 to Sowers.

No. 227, January Term, 1884 There was an appeal by the plaintiff, from the judgment of Justice Andrew Plertzog. Richard Drew had dealings with the firm of A. W. and John EL Gans, who were in the lumber business, and other dealings with A. W. Gans, merchant. A. W. and J. EL Gans sued Drew before the Justice of the Peace, claiming $67 to be due them.

No. 70, Jan. Term, 1884. This was a case stated brought by the Commonwealth of' Penna. against the executors of Michael Sprankle, deceased, and against Peter Sprankle.

No. 325, Jan. Term, 1884. This was an action of assumpsit, to recover back money paid on a parol contract to convey land. The Court chai’ged the jury • as follows: Gentlemen oe the Jury' : — Our insti'uctions will be quite brief, and we will not go over the testimoxxy in detail. The disputed questions of fact must be decided by you.

4 of Philadelphia County. No. 242 January Term, 1884. The Philadelphia Wood Paving Co. recovered a verdict .against John E. and John M. Bickel on January 27th, 1880, for $5,777.36.

No. 286 January Term, 1885. This was an action of trespass brought by W. C. Garey vs. N. K Woodward. It appeared that in February and March, 1883, O. A. Seeley delivered at Dushore Switch and other places in Dushore certain lumber which he had sold to N. K. Woodward.

In Equity. No. 12 July Term, 1863. John S. Twells filed a bill in equity against the Pennsylvania R. R. Co., setting forth that they had discriminated against him in the matter of freight charges. It appeared that the defendant made a higher charge for freight from Pittsburg to Philadelphia -when its ultimate destination was New York, than they did when its destination was Philadelphia.

No. 123 July Term, 1869. The son of plaintiff in error drove his horse to the Tacony station of defendant with a passenger. The horse became frightened at the passenger train and ran away, along the public road ahead of the train. This road is in sight of the track and crosses it twice in about one hundred yards. At the first crossing the engineer allowed the horse to pass in front of him, but then turned on the steam; and the engine struck the horse at the second crossing.

1, of Allegheny County. In Equity. No. 251 October and November Term, 1878. This was a bill in equity by W. J. Kountz and W. B. Neal,, against the Pittsburg National Bank of Commerce, to obtain relief against an alleged inequitable judgment obtained in a suit at law against complainants, on the ground that the. said bank, plaintiff, had procured the said judgment against the said Kountz and Neal, by means of fraudulent concealment, collusion, and perjury.

No. 30 January Term, 1885. The facts of this case were the same as Post vs. Railroad Co.? reported 108 Pa. 585, but»the present case was brought .by S. Post and C. B. Post, trading as S. Post & Son to use of London Assurance Corporation, of London, England, vs. The Buflalo, Pittsburg and Western Railroad Company.

<p>Error to Common Pleas of Crawford County. No. 30 January Term, 1885.</p> <p>The facts of this case were the same as Post vs. Railroad Co.? reported 108 Pa. 585, but»the present case was brought .by S. Post and C. B. Post, trading as S. Post & Son to use of London Assurance Corporation, of London, England, vs. The Buflalo, Pittsburg and Western Railroad Company.</p>

No. 240, January Term, 1868. This case was an appeal of Robert E. Randall, assignee of George Earp, Jr., from the decree of the Orphans’ Court, distributing the estate of Felix Trainer, deceased, who died insolvent. Earp and Trainer had been in partnership, but the firm had -been dissolved and afterwards proved insolvent, and George Earp made an assignment for the ^benefit of creditors to Robert E. Randall.

No. 242, January Term, 1863. This was an action on the case brought by Charles IIeerman against Charles Colflesh, Daniel Colflesh, Samuel Colflesh and Thomas Hanbest for treble damages -for rescous and pound breach, under the Act of March 21, 1772, Sect. 2, 1 Sur. Laws 370. Only Hanbest was served. Charles Colflesh, one of the defendants, occupied as tenant a farm owned by IIeerman.

No. 91, January Term, 1883. This was an action of debt brought by the railway company to the use of Jacob M. Bivins against George Hench to recover some installments on sixty shares of People’s Freight Railway stock.

No. 328, January Term, 1884. This was an action of trespass brought by John C. Kerst against the Railroad Company to recover damages for the burning' of his house, which was situated some distance below Monocacy Station at a distance of abóut forty feet from the railroad track.

No. 177 January Term, 1881. Henry Eoberts had recovered in ejectment from the said railroad company; see 8 W. N. O. 6. He then petitioned for viewers, who awarded him $580 damages. The railroad then appealed, and the Court directed the case to be put at issue, as in trespass quare clausum fregit, which was accordingly done. The railroad company filed a draft showing the land appropriated.

No. 260 January Term, 1865. The record showed that a petition of A. H. Thomas, Treasurer of the Railroad Co. (accompanied by proof of tender' of bond and service of notice) for the appointment of viewers to assess damages to the estate of John H. Palethorp caused by the construction of the railroad of the defendant corporation, was filed on September 18, 1864.

In Equity. The Chambersburg Manufacturing and Building Association was chartered by Act of Assembly of April 28,1866. Its business not proving remunerative until finally a meeting of stockholders was held on March 17, 1869, at which it was determined to sell the real estate of the corporation, which consisted of a planing mill and a machine shop. The indebtedness was estimated at $12,000.

No. 58, January Term, 1885. This was an appeal from an order of Court, refusing to open a judgment entered on a warrant of attorney in a judgment note for $340.00. Levi Anderson and Jonathan Anderson were the defendants, and Lydiani Wallet was the plaintiff. The judgment was afterwards transferred to Jehu Madden. It seems that the note as originally given was usurious, and a credit for the usury was allowed under direction of the Court.

1, of Philadelphia County. No. 151 July Term, 1883. This was an action to recover a deposit which stood in the name of Joseph Gormley, and was brought by Mary E. Gormley, his administratrix, against the National Bank of the Republic. The jury find a special verdict as follows: That Joseph Gormley died on April 12th, 1881, insolvent, and that the plaintiff is his administratrix.

No. 181 July Term, 1883. The Court of Quarter Sessions made the following order: And now Feb. 17th, 1883, the petition referred to under the Act of Assembly of Feb. 16th, 1883, entitled, “A further supplement to the Act approved 14th day of May, A. D., 1874, entitled, ‘An Act to prescribe the manner in which the Court may divide boroughs into wards, and to provide for a ward representation upon School Boards in said borough,” having been filed; on motion the •Court ordered…

No. 4 October Term, 1876. There was a verdict for plaintiffs followed by an argument for a new trial and on May 31st, 1875, the decision was entered on record as “new trial refused.” On June 8th, 1875, judgment was entered on the verdict. A fi. fa. was issued on June 8 and returned nulla bona ; an alias fi. fa. was issued on Sept. 23, 1875, and a levy made upon real estate of defendants.

No. 41 May Term, 1874. 'Samuel Swope was elected Register and Recorder of Adams County in 1869, and entered upon the duties of his office. During the winters of his term he used coal from a quantity provided by the County Commissioners. The County afterward brought suit for the value thereof, and the Court instructed. the jury that the County was not bound to furnish heat for his office in the Court House. Verdict for the County for $46.

No. 78 July Term, 1883. Plaintiff and defendant were judgment creditors of John and Edward Berrell, who had made an assignment for the benefit of their creditors. The assignee had, under an order of Court, made a sale of Berrell’s property clear of judgments, for such a price that neither claim would be paid. Melcher’s judgment was for $1,000, and was prior to the Saving Fund judgment foils,832.50.

3 of Philadelphia County, Nos. 262, 263, 264 and 265 Jan. Term, 1884. These are actions of Sci. Fa. Sur. claims against four lots of' meadow land in the 27th ward in the City of Philadelphia, for what is called meadow taxes.

No. 167 July Term, 1883. Viewers were appointed to lay out a road, and made the following report: We, the undersigned persons, appointed by the within order of Court to view and lay out the road therein mentioned respectfully report, that having been all present who signed this report at the view of the ground proposed for such road, and having all been first severally sworn, or affirmed, in pursuance of the said order, we have viewed and laid out, and do return for public…

This was a proceeding on the part of the Pennsylvania Railroad Company to straighten their line of railroad.

No. 192 July Term, 1883. . Arnold Bean owned a small farm in Lower Providence Township, Montgomery County, Penna. After his death, there was a petition presented to the Court, by the administrator, for an order to sell this property, for payment of debts. The Court made the order prayed for. It was to be put up for sale by auction, and John IL Bean bid it up to $3,000. William Detwiler bid $3,050.

2, of Philadelphia County. No. 145 January Term, 1884. This was a Sci. Fa. Sur. mortgage brought by Charles Scott against Nathan Middleton and Allen Middleton, Jr. The casé was tried by a judge, without the intervention of a-jury, undei the provisions of the Act of April 22,1874. The Court found •that Condit Prudden conveyed the premises bounded by Ridge •Avenue and 11th and Noble Sts. to Nathan Middleton and Alien Middleton, subject to four mortgages.

No. 299 Jan. Term, 1885. On March 14, 1879, M. Williams obtained a confession of judgment from D. W. Williams for $2,000 with interest. A sci. fa. was issued on the 15th of Jan., 1883. By an assignment dated 10th of Nov., '83, M. Williams assigned all his interest in the said judgment to J. D. Brandt for legal services rendered.

This was a motion to set aside an award of arbitrators in the Common Pleas of Luzerne County. The case was originally reported in 4th Luzerne Legal Observer, page 8. The opinion of the Court was as follows per:

This case Avas a rule to strike off a reference to arbitrators in the Common Pleas of Luzerne County. The opinion of the Court, originally published 4 Luzerne Legal Observer 24, was as follows per:

This was an action of ejectment in the Common Pleas of Luzerne County, and was originally reported in 4 Luzerne Legal Observer, page 26. The opinion of the Court was as follows per:

<p>This was a case in the Common Pleas of Luzerne County,, originally reported 4 Luzerne Legal Observer, page 24. The-opinion of the Court was as follows per;</p>

This was a rule to set aside an award of arbitrators in the Common Pleas of Luzerne County and was originally reported in 4 Luzerne Legal Observer, page 39. The opinion of the Court was as follows per:

This was an action in the Common Pleas of Luzerne County to recover damages for selling at Sheriff’s sale the property of the plaintiff after he had claimed his exemption. The case was originally’reported 4 Luzerne Legal Observer, page 40.

No. 198 January Term, 1864. The case was originally reported in 4th Luzerne Legal Observer, page 78. ' The facts of the case appear in the opinion of the Court below, •which was as follows per: Stroud, J. This is an action of covenant brought to recover the value of -certain fixtures made by the plaintiff as lessee of a coal yard, demised to him by the defendant under an agreement dated February 25,1858, for a term of five years, commencing on March 1st, 1858.

No. 5 July Term, 1863. This case was originally reported 4 Luzerne Legal Observer 96. David Campbell commenced to keep an account in the Philadelphia Saving Fund Society in April, 1846, and at the time of his death, on December 1st, 1860, his deposit amounted to $751.02. During his last illness he handed his deposit book to his brother, who, without his objection, gave-the two weeks’ notice required to withdraw money.

<p>This was a bill in equity filed in Luzerne- Ooimty and the opinion was originally reported in 4 Luzerne Legal Observer, page 110.</p>

<p>This case was brought to No. 393 November Term, 1863, in the Common'Pleas of Luzerne County. It was originally reported in 4 Luzerne Legal Observer, page 225.</p>