Volume 21 — Pennsylvania State Reports

<p>This was a proceeding had upon petition on the part of the Pennsylvania Railroad Company, by its President, praying for the issuing of a writ of mandamus to the Canal Commissioners. It was addressed to the Supreme Court for the Western District of Pennsylvania, in September, 1852.</p> <p>It represented, inter alia, as follows: |</p> <p>“ That they are a Company constituted a body politic and corporate, under this title, by an Act passed on the 13th day of April, 1846, entitled, ‘ An Act to incorporate the Pennsylvania Railroad Companyby which enactment and various supplements, they are authorized to construct and use a railway from Harrisburg to Pittsburgh, to own land within and near to the city of Philadelphia, and to exercise such other franchises as may be necessary or convenient for the full benefit of the said railway ; but which said Act and its supplements, the petitioners, for greater certainty, refer to as a part of their present petition.</p> <p>“ The railway thus authorized, is now nearly finished, and they have purchased land and built valuable structures, for the various purposes of transportation at West Philadelphia, the eastern terminus of the Philadelphia and Columbia Railroad, known as and commonly called the Columbia Railroad. They have been running cars both by themselves and other persons, for the transportation of passengers, merchandise, and the United States mail, over such parts of their railroad as are finished, and for more than a year over the said Philadelphia and Columbia Railroad, belonging to the state of Pennsylvania, and a railway intervening between the eastern terminus of the railway of the said Pennsylvania Railroad Company, belonging to the Harrisburg, Portsmouth, Mount Joy and Lancaster Railroad Company.</p> <p>“ That one of the great objects of the law incorporating the Pennsylvania Railroad Company, was to connect Pittsburgh with Philadelphia, and to enable the latter as an Atlantic city, .to participate more largely in the commerce of the west than she was able to do by means of the main line of the public works of Pennsylvania, and especially than she should do upon the completion of rival railways, in the course of construction by the respective states of Maryland and New York.</p> <p>“ In order to enable the Pennsylvania Railroad Company to carry out the great objects of their expensive work, it was necessary that their cars should have the right to run over the said two intervening railroads between Philadelphia and their eastern terminus at Harrisburg. On the 21st day of April, 1849, the petitioners entered into an agreement with the said Harrisburg, Portsmouth, Mountjoy, and Lancaster Railroad Company, for the use of their railroad, for the period of twenty years; (a copy of which agreement was attached.)</p> <p>“ That for some years, a large portion of the passenger' business done on the Philadelphia and Columbia Railroad, was performed by a company whose cars were known as the Eagle Line. At the solicitation of a member of the Board of the then acting Canal Commissioners, the petitioners were induced about the month of March, 1851, to purchase from said company all their cars; since which time down to the 15th instant, inclusive, the said cars, and others for the conveyance of passengers and the United States mail, as well as freight, were used and run by the said petitioners,' over the said Philadelphia and Columbia Railroad, with the knowledge, assent, and approbation of the Canal Commissioners, a body constituted by law to superintend the said railroad as one of the public works of the state.</p> <p>“ That the petitioners paid to the Canal Commissioners, or their duly constituted agent, from time to time as required, such tolls and other charges, as were imposed by the said Canal Commissioners, both for the conveyance of freight and passengers over said railroad, and in all other respects complied with the rules and regulations of said railroad.</p> <p>“ On the 20 th day of May last, the petitioners received notice from the said Canal Commissioners of a resolution adopted by the Board on the previous day, stating that a contract had been formed with Messrs. Bingham & Dock, for the carriage of all passengers and mails over the state road, except passengers carried by the West Chester Railroad Company, and by market cars.</p> <p>“ That the contract was to go into effect by its terms on the 1st of July ensuing, a copy of which notice is hereto attached.</p> <p>“ Since the date of this notice, a publication has been made, under the apparent authority of the Canal Commissioners, of which a copy of the paper purporting to be a copy of the contract above referred to, forms a part.” They charged that if the said Canal Commissioners made such a contract as is contained in that paper they made it without any public notice inviting proposals for such a contract.</p> <p>“ They also annex a copy of a resolution passed by the said Canal Commissioners, on the said 19th of May last, prescribing the terms upon which transporters of passengers were to use the said Philadelphia and Columbia Railroad, including the toll and motive power. ’ The petitioners complied with this resolution by continuing to carry passengers, and paying the rates fixed therein, until stopped by the order of the said Canal Commissioners from using said railroad as hereinafter stated.</p> <p>“ The petitioners received a copy of a notice of another resolution, dated Towanda, June 12, 1852, postponing the commencement of the contract with Bingham & Dock, to the 16th day of August.</p> <p>“ Various advertisements were printed in several of the newspapers of the city - of Philadelphia, by Bingham & Dock, and the said Canal Commissioners, announcing to the public that the said Bingham & Dock, only (except the West Chester Railroad Com-party and market cars), could carry passengers, on and after the 16th day of August, 1852.</p> <p>“ On the 16th day of August last, two passenger cars, a baggage car, and mail car, belonging to petitioners, were taken by petitioners’ agents, from their passenger depot at the south-east corner of Eleventh and High streets, in the city of Philadelphia, at precisely eight o’clock, the usual and proper time for the morning train going west, and arrived on the railroad of the state, at West Philadelphia, at the regular time of attaching the train to the locomotive of the state, for conveyance, that being the place assigned by the said Canal Commissioners for said attachment, and the departure of westward trains, drawn by the motive power. The said cars contained respectively thirty-three passengers, or thereabouts, the baggage of said passengers, and the United States mail. The passengers were bound to various places on the Pennsylvania and Columbia Railway, to Pittsburgh, and to points west of that city.</p> <p>“ The agent in charge of the locomotive and train of cars, on behalf of said Canal Commissioners, was then and there requested by an agent of the petitioners, authorized for that purpose, to attach or permit the attachment of the said ears of the petitioners to the train which was to be drawn by the locomotive engines belonging to the state. The said agent acting as he said, and as petitioners aver, for and under the authority of the Canal Commissioners, refused to permit or to make any attachment whatever. The locomotive engine was started on its way to the west by order of the Canal Commissioners, carrying only the train of cars belonging to Bingham & Dock, leaving behind the said cars of the petitioners, which the said agent refused to attach or permit to be attached, and convey or draw or permit to be conveyed and drawn, under the authority aforesaid.</p> <p>On the same day, to wit, the 16th day of August last, passenger cars of the petitioners for the two other trains going west and east, both the way and through trains, were also duly offered at the proper times and places by their agents for attachment and conveyance as aforesaid, over the said Philadelphia and Columbia Railroad, and were refused by the agents of the Canal Commissioners such attachment and conveyance, it being alleged by said agents that the orders of the Canal Commissioners were not to take and transport, or permit to be taken or transported, the passenger cars of the petitioners over the said railroad. The petitioners say that the state tolls were duly tendered to the proper officers, by an agent of the petitioners duly authorized for that purpose in two of the aforementioned cases, before the cars were offered for attachment and transportation, and refused as aforesaid. They further say that the said cars offered for attachment to and transportation by the motive power of the state, were in all respects conformable to the rules and regulations of the Board of Canal Commissioners, and that the time and manner of attachment demanded, were also in conformity therewith. They further alleged, that the refusal to permit to he attached and transported, the said cars of the petitioners, was made by the order and authority of John A. Gamble, William T. Morrison, and Seth Clover, the persons who now fill the office of Canal Commissioners.</p> <p>The petitioners further represented that since the 16th day of August last, the said persons, Canal Commissioners, have attempted, under color of their said alleged contract with Bingham & Dock, to force, by the exaction of illegal tolls, the through travel from its natural and accustomed channel around by a circuitous route via Columbia.</p> <p>It was alleged that these exactions were proposed to compel the petitioners to change their rules and connect with Columbia for said through passengers, a connection which they never made (except for a short time to enable necessary repairs to be made on the main and direct thoroughfare), because they believe it would prove injurious to the whole Pennsylvania line as a route to the west.</p> <p>The petitioners insisted that they had the right by law, and are authorized by their Act of incorporation, to transport passengers and tonnage over their own road and the said Philadelphia and Columbia Railroad, and that the refusal to attach or permit the attachment of their cars to the motive power as aforesaid, was without legal authority and contrary to law.</p> <p>They charged that the said John A. Gamble, &c., under the pretence of their authority as Canal Commissioners, have, in refusing to carry petitioners’ cars, as aforesaid, occasioned damage to the petitioners, and that great public mischief must ensue therefrom to petitioners, to the public treasury, and to the commerce of the state.</p> <p>‡ ^ ^ ‡ ‡ ^ ‡ ^</p> <p>They also charged that said acts of the said Gamble, &c., were without and in violation of the law and the rights of the petitioners.</p> <p>They prayed the Court to issue a writ of mandamus to the said John A. Gamble, &c., Canal Commissioners, requiring them to attach the passenger cars of the petitioners to the motive power provided by the Commonwealth for the transportation of passenger cars over the said Philadelphia and Columbia Railroad.</p> <p>Signed ■Sworn and subscribed the 4th 1 day of September, 1852. j</p> <p>J. Edgar Thompson, President.</p> <p>In the agreement between The Harrisburg and Lancaster Railroad Company and the Pennsylvania Railroad Company, it was agreed that the former would transfer to the latter their locomotive cars, machinery, materials and tools on hand, to be paid for at a fair valuation. The Pennsylvania Railroad Company was to have the exclusive use of the roads then or thereafter to be constructed by the other Company. The Pennsylvania Railroad Company was to use exclusively the Harrisburg and Lancaster Railroad for carrying and transporting all passengers and freight carried over their road to and from Philadelphia and Pittsburgh, during the term of the contract, which was to continue in force for twenty years, unless discontinued or altered by the consent of both contracting parties.</p> <p>In the contract executed on the 19th May, 1852, between The Canal Commissioners and Bingham & Dock, the latter party agreed to carry all the passengers over the Philadelphia and Columbia Railroad and intermediate points, except such passengers as the West Chester Railroad Company were then permitted to carry, and such market-men as are carried in market cars under regulations then existing. They also agreed to carry the United States mail as often as required by the Post Office Department— to collect the fare on each passenger — to stock the road with first class passenger cars — their compensation to be five mills per mile for each passenger — for emigrant passengers 2J mills per mile, &c. It was also understood that the agreement gave to the party of the second part, the exclusive right of carrying all the passengers over the railroad aforesaid, except those carried by the West Chester Railroad Company and by market cars. The'agreement was to continue in force for four years, commencing on 1st July, 1852.</p> <p>In the answer of the Canal Commissioners it was admitted that the Pennsylvania Railroad Company had been running cars for the transportion of passengers, merchandise, and United States mails for more than a year over the state road; but it was said that they had used the road exclusively under and in obedience to the regulations of the Board of Canal Commissioners. It was said that the subject of an arrangement meditated for the transportation of passengers over the state works, to be conducted under the control of the Canal Commissioners, was known to the President and Superintendent of the Pennsylvania Railroad Company not less than two months before the 19th May, 1852, the date of the agreement with Bingham & Dock; and that the Pennsylvania Railroad Company proposed an arrangement at a higher rate than was afterwards agreed to by Bingham & Dock; that under the arrangement made with the latter, there has been so far an increased revenue to the state of above $9000 over the corresponding period of the last year; and that the total gain to the state for transporting the mails and passengers during four years might be $150,000.</p> <p>The first Act of Assembly relating to a state railroad, is that of 9th March, 1827. By the 3d section of it, it was provided, That it shall he the duty of the Canal Commissioners to cause examination, survey and estimate to be made of the route for a canal, and also for a railway with locomotive or other stationary power from Philadelphia through Chester and Lancaster counties, so as to connect by the nearest and most eligible route with the Eastern section of the Pennsylvania Canal. By the 5th section of the Act of 24th March, 1828, authority was given to the Canal Commissioners to locate a railroad from Philadelphia to Columbia. By the 9th section of the Act of 6th April, 1830, it was provided “that the Board of Canal Commissioners shall appoint supervisors to take charge of such portions of the canals and railroads as shall be finished, for public use.” It was said on the part of the Pennsylvania Railroad Company, that the words “ public use” in the Acts of Assembly relating to the canal and railroad mean common use, in contradistinction to the use of the state: 6 Wharton 44; 2 Watts 23; 1 Baldwin 205; 2 B. A. 648; Shelford on Railways 67; Wolford on Railways 299.</p> <p>By the Act of 11th June, 1832, the Canal Commissioners were authorized to permit cars to he placed on such parts of the Columbia Railroad as are or maybe finished; and the Act of 15th April, 1834, provided that “ individuals shall have the right to place cars on the road, and, under such rules and regulations as may be adopted, attach their cars to the locomotive cars belonging to the Commonwealth, for the purposes of transportation.” This act in its title refers to both the railroads of the state. It was said on the part of the relator that this right is not confined to the transportation o'f merchandise, but embraces cars for the conveyance of passengers. It was also said that no act authorized the Canal Commissioners to purchase cars for either railroad, or boats for use on the canal. That their whole power was to keep those works in repair, to fix the tolls, to adopt rules and regulations concerning them, and to supply motive power for the railroads. That their powers on these subjects are to be found in the Acts of 24th March, 1828; 6th April, 1830; 11th June, 1832; 21st February, 1834; 15fch April, 1834; 8th April, 1834; 28th January, 1836; 16th April, 1838.</p> <p>Further: By theJAct of 8th April, 1834, the Canal Commissioners were'authorized to make rules and regulations relative to the railroads of the state, which were “ not inconsistent with the laws of this state.” Another provision of a similar character exists in the 12th section of the Act of 16th April, 1838; and it was contended that that power did- not authorize the purchase of cars or boats at the expense of the state, or the assumption of the carrying business or the exclusion of transporters from its use.</p> <p>The Pennsylvania. Railroad Company was incorporated in pursuance of the Act of 13th April, 1846. The 11th section authorized the location and construction of a railroad, beginning at and uniting with the western terminus of the Harrisburg, Portsmouth, Mountjoy and Lancaster Railroad, in the borough of Harrisburg: Provided said Harrisburg, Portsmouth, Mountjoy and Lancaster Railroad Company shall be subject to and consent to the same rate of tax on tonnage for the use of the state, as is provided to be paid in this Act, by the Pennsylvania Railroad Company; and •in case the said H., P., M. & L. Railroad Co. should not agree to comply with these conditions, within three months after the distance of fifteen miles from Harrisburg westward shall bona fide be put under contract, the said Pennsylvania Railroad Company are authorized to connect their road with the Columbia Railroad, at or near the borough of Columbia in Lancaster county, and thence terminating at such point or points in, at, or near the city of Pittsburgh, or other place in the county of Allegheny, with authority to extend the road or a branch to the town or harbor of Erie, as to the said president and managers may seem most advantageous or expedient.</p> <p>The Pennsylvania Railroad was never extended eastward beyond Harrisburg.</p> <p>An Act was passed on 18th March, 1847, by which it was enacted, That in all cases where two railroads in this Commonwealth are or shall be connected, it shall be lawful for the company owning either of the said railroads (with the consent of the company owning the other of said railroads) to run its cars and locomotive engines upon said other railroad, and to erect water stations and other buildings for the due accommodation of the cars and engines employed thereon, &c.</p> <p>If this Act of 1847 was not applicable to the railroads of the Commonwealth, it was said that the Pennsylvania Railroad Company had, by a subsequent Act, the right to pass with cars over the Philadelphia and Columbia Railroad to and from Philadelphia. That the right of the said company to transport passengers and tonnage over the Columbia Railroad, was given or confirmed by the Act of 23d April, 1852. By the second section of that Act, the Pennsylvania Railroad Company were authorized to purchase and hold the title to two several estates, situated in West Philadelphia and county of Philadelphia, and also to purchase the title to any portion of the Powelton estate, “ for the purpose of erecting thereon offices, station-houses, warehouses, shops, car-sheds, sidings, cattle-yards, and for such other objects as appertain to the legitimate business of the company, authorized by their Act of incorporation, of transporting passengers and tonnage over their road and the Columbia Railroad, not exceeding thirty acres of uplands. The boundaries of such quantity of land as said company may deem proper to take, to be determined by the President of the company, and the Governor of the State of Pennsylvania, or the President of the Board of Canal Commissioners; also the right to purchase and hold within the city of Philadelphia, such other property for depots, offices, and sidings as may be necessary or convenient for the transaction of the proper business of said company, authorized by their Act of incorporation.”</p> <p>This case was argued in Philadelphia.</p>

This was an application to the Supreme Court, when sitting in September, 1852, in the Western district, by David Miller for a mandamus to be issued to the Canal Commissioners, in which it was, inter alia, represented: “ That for several years, petitioner has by himself and in conjunction with other persons, carried passengers in cars drawn by the motive power of the state, to and from Columbia and Philadelphia, over the Columbia and Philadelphia Railroad, with the knowledge…

This was an action of ejectment by John Dean v. Reuben Webb, to March T. 1841, for a piece of land in the county of Philadelphia. The plaintiff having died, William E. Dean and others, as his heirs, were substituted. The property was claimed by the plaintiff by virtue of a sheriff’s sale in 1836, as the property of Zalegman Phillips.

This was a case stated between the Commonwealth of Pennsylvania as plaintiff, and Henry Ereedley and others as executors of the will of John Ereedley deceased, as defendants, in order to ascertain whether the estate of the said decedent was liable to taxation, under the Acts relating to collateral inheritances, on its increased value as ascertained by sales made after it had been valued and appraised under the 12th section of the Act of 10th April, 1849.

<p>1. A general statute without negative words will not repeal a previous statute which is particular, though the provisions in the two be different.</p> <p>2. The Act of Assembly of 10th April, 1834, creating the County Board of Philadelphia eounty, is constitutional and in full force; it has not been repealed by the Act of 15th April, 1834, relating to counties and townships, and the officers of each.</p> <p>3. The County Commissioners of Philadelphia county have no power, without the sanction of the County Board, to subscribe for stock in the Sunbury and Erie Railroad Company, by virtue of the Act of 10th February, 1852, authorizing the corporate and constituted authorities of any municipal or other corporation to subscribe to the same.</p>

<p>Error to tbe Common Pleas, Philadelphia.</p> <p>This was an appeal by Grove, in an action of assumpsit by McCalla v. Grove, to recover $100 for services rendered. The declaration contained several common counts, and a special count in which was alleged a promise by Grove to pay to McCalla $100 for services rendered by him; the same to be paid when a certain suit then pending, by Grove v. Marsh, was settled and the money paid.</p> <p>It was testified by a witness, that in February, 1847, McCalla asked Grove to pay some money he owed him. That Grove said he could notbut said, “ If you wait till I get my suit settled with Marsh, and I get my money, I will pay you one hundred dollars for your services.”</p> <p>It was further testified, that MeCalla was employed hy Grove to get the witnesses in that suit into Court; and also that Grove gave to MeCalla notes to collect. It was testified that MeCalla was examined as a witness for the plaintiff in the suit of Grove v. Marsh; also that MeCalla went after witnesses frequently. The suit of Grove v. Marsh was pending during several years, having been instituted in 1844, verdict rendered in 1848 for plaintiff and damages assessed at $3600, and the case ended in 1850.</p> <p>On the trial the counsel of Grove asked the judge to charge, that if a plaintiff in a suit at law promises one of his own witnesses, who is afterwards examined in the cause on the plaintiff’s behalf, to give him, the witness, a sum of money beyond his witness fees for his services in the cause, when he, the plaintiff, gets his money from the defendant in the cause in which the services are to be rendered, that the promise is against the policy of the law, and as such is a nullity, and cannot be recovered on.</p> <p>The judge charged, that if the defendant employed the plaintiff to attend to subpoenaing witnesses, and other duties connected with a suit pending, undertaking to pay him a sum certain out of the money recovered in the suit, there is nothing in the policy of the law to prevent the plaintiff from recovering, notwithstanding the fact that he was also examined as a witness in the case.</p> <p>The said charge was excepted to, and was the subject of the assignments of error.</p>

<p>1. As no statute has allowed a bill of exceptions to evidence in the Quarter Sessions, the evidence is not brought up on a certiorari to the Sessions in a question of settlement; and though the judge may incorporate the facts into his opinion, the legal effect is the same, as the opinion of the Court is no part of the record.</p> <p>2. Except as a Court of error for the correction of errors of record, the Supreme Court has no jurisdiction in questions of settlement and removal under the poor laws: ana on appeal the decisions of the Quarter Sessions as to the merits of such cases are, by the 44th section of the Act of 13th June, 1836, final and conclusive.</p>

<p>1. To entitle a party to a decree for specific performance, the contract must be mutual; both parties must have a right to compel specific performance.</p> <p>2. Real estate was sold at public auction. By the terms of sale, the title was undoubted, the purchase-money to be paid within fifteen days from the sale, or the property might be sold at the risk and expense of the purchaser.</p> <p>On the part of the purchaser objection was made to complying on account of a defect in the acknowledgment, by a married woman, of one of the deedsi through which the title was derived. Above two months after the sale, in reply to a letter giving information of the death of the feme covert before the sale, and requesting performance, the agent of the vendee gave notice of the., refusal of the vendee to comply. The vendee subsequently engaged in business requiring considerable capital. The bill of the vendor asking for specific performance was subsequently filed, and afterwards, before a master, satisfactory evidence was exhibited of the death, previous to the sale, of the femé covert whose acknowledgment was alleged to be defective.</p> <p>It was Held, that as the vendor was not bound to convey after the expiration of the fifteen days fixed for payment of the purchase-money by the conditions ’ of sale, he was not entitled to a decree for specific performance.</p> <p>3. As to the materiality of time, see this case.</p>

<p>This was an appeal from the decree of the Court of Quarter Sessions of the city and county of Philadelphia, confirming the plan of that part of the borough of Manayunk lying north-west of Green lane.</p> <p>On the 24th January, 1832, an Act was passed authorizing the laying out of streets and roads in the township of Passyunk, in the county of Philadelphia. See Acts of 1831 — 2, pages 27-8-9. By that Act commissioners were appointed to survey the streets, roads, and lanes laid out within certain bounds defined in the Act, and also to lay out such other streets and roads within the district as they shall deem necessary, &c., and making it their duty, after having made such survey and laid out such streets and roads as they shall deem proper as aforesaid, to make or cause to be made a correct draught or plan thereof, &e., and return it to the Court of Quarter Sessions of the county of Philadelphia, &c. Public notice of its being filed was directed to be given, and that on a certain day designated, the Court would hear objections to it. 'The preamble to the 4th section was as follows: And, whereas, the public convenience will be at present answered by the certain knowledge where and in what manner such streets, roads, and lanes will in future run, but it will not be necessary immediately to lay them all open; in order, therefore, to provide for the opening of the same from time to time, as the increasing improvements may require. And it was enacted by the 4th section,- That upon the petition of any number of the citizens of said township, not less than twenty, whose lands lie near or adjoining to such streets, roads or lanes, it shall and may be lawful for the Court of Quarter Sessions, after hearing the petitions, and such freeholders through whose land such street or road shall pass as shall offer objections thereto, to appoint viewers to report whether it be proper at the time to open such street or road ; and if they shall be of opinion, that the state of improvement in the neighborhood thereof shall require it, they shall issue an order to the supervisors of the roads, in the township of Passyunk, requiring and enjoining them to open such street or road, and to cause the same to be put in order and kept in repair, in the same manner as other streets are bylaw to be opened repaired and maintained, and the owner or owners of ground through and over which any of the streets or roads shall pass shall proceed in the same manner to obtain indemnification for any injury they may sustain thereby, as if the said streets or roads had been opened in the manner usually pursued for opening roads.</p> <p>Another Act was passed on the 13th July, 1842, (Acts of 1842, page 372), and the plan, part of which was in question, was made in pursuance of the 4th section thereof, which was as follows:</p> <p>“ That the road committee appointed by the burgess and council of Manayunk, taking to their assistance an able surveyor, shall have full power and authority, and are hereby enjoined and required to survey the roads, streets, lanes, and alleys already laid out, and within the borough, and also to lay out such other roads, streets, lanes, and alleys, or widen those already laid out within the said borough, as they shall deem necessary for the convenience and accommodation of the inhabitants thereof; and it shall be the duty of the said committee after having made such a survey, and laid out such streets, roads, lanes, and alleys as they shall deem proper as aforesaid, to make or cause to be made a correct draught or plan thereof, with every explanation necessary for the perfect understanding of the same, and return it to the Court of Quarter Sessions of the county of Philadelphia; and it shall be the duty of the Clerk of the said Court to receive and file the said draught or plan in his office for public inspection and examination, and to give public notice by printed handbills posted up in at least ten conspicuous places in the said borough, that on a certain day to be appointed by the Court, the said Court will hear any objections that may be made thereto by any person owning property within the said borough, who shall consider themselves aggrieved, and the said Court shall at the time appointed adjudge and determine whether the same shall be fully and finally established, and whether any and what alteration shall be made therein, and shall direct the said draught or plan, with such alterations as may be made, to be recorded ;■ and from thenceforth all the roads, streets, lanes, and alleys so approved shall be for ever deemed, adjudged, and taken as public highways.”</p> <p>In September, 1843, a plan was made and confirmed of the portion of the borough of Manayunk lying south-east of Green lane.</p> <p>In January, 1850, the plan of the remainder of the borough, lying north-west of Green lane, was presented to the Court, and filed. On 7th Eebruary, 1851, on the part of Ripka, exceptions to its confirmation were filed — they were,</p> <p>1. That Eranklin street east of Hamilton street, and Hamilton street north or north-west of Eranklin street, as laid down in said plan, are neither of them necessary for public use; and, if opened, will cause extensive injury and damage to the property of this ex-ceptant; and he, therefore, objects to their extension as laid down on said plan.</p> <p>2. The said proceedings under the Act of Assembly of July 13th, 1842, are void; a plan of part of said borough having been made and confirmed in September, 1843.</p> <p>On 21st June, 1851, the Court adjudged that the plan filed should be finally established, excepting the sidewalk of the width of ten feet on Main street, &c. And it was further adjudged that all the roads, streets, lanes, and alleys, except the said sidewalk, shall be deemed and taken as public highways, and that the draught or plan be recorded, &c.</p> <p>Erom the- decree Ripka appealed, and exception was filed that the Court below erred in confirming the plan of part of the borough lying north-west of Green lane, under the Act of July 13th, 1842, a plan of another part of the said borough having been made and confirmed in September, 1843.</p>

This case was brought up from the Nisi Prius. It was an action of ejectment to July Term, 1848, by Nancy K. Risk v. Edwin R. Cope and Jacob J. Cope, for about 116 perches of land, being a strip óf land to the west of Gunner’s run.

<p>Error to the Common Pleas of Philadelphia county.</p> <p>This was an issue directed by the Common Pleas of Philadelphia, in pursuance of a precept from the Register of that county, to try the validity of the will of Charles Leech. In the issue, Charles Leech, the son and sole devisee of the alleged testator, was the plaintiff, and Samuel S. Leech, a brother of the said decedent, was the defendant. The will in question was dated on the 20th August, 1849. In the same it was declared that the testator made the same as his last will and testament, declaring all others, if any, to be void and of no effect, and it was added, that, “ In consequence of the affectionate, feelings I entertain for Charles Leech” * * * “I give and devise to him all my estate, real, personal, or mixed,” and Charles Leech was appointed sole executor.</p> <p>The testator died in April, 1851, being above eighty-three years of age, and leaving his said son and several brothers and sisters.</p> <p>The probate of the writing was objected to by Samuel S. Leech, on the ground that it had been procured by improper influence, and that at the time of its being made the alleged testator was not of disposing mind and memory. An issue was requested, and a precept was accordingly issued to the Common Pleas to direct one.</p> <p>On the part of Samuel S. Leech, the plaintiff in error, it was alleged that the habits of life of the testator, who had never been married, had been eccentric — and that for a few years before his death, his conduct evinced derangement and imbecility of mind; and it was alleged that when the will in question was made, he was incapable of making a will. He left considerable real estate, but no personal property. It was said that he had executed three wills — by the first one, said to have been executed in the summer of 1849, he had devised all his property to one Israel S. Elliott. The second was the will in question. The third was said to be a reiteration or copy of the provisions of the first one. It was testified by Elliott that it was from three weeks to a month after the first will that it was copied. It was testified by the counsel who wrote it that it must have been written after the commencement of September.</p> <p>The person who drew the last will said he thought that the testator, at the time it was drawn, was incompetent to make a will — • that he thought it might be drawn to humor him. He said that he had not seen that will since.</p> <p>On the trial, the defendant’s counsel proposed points as follows:</p> <p>1st. It .is not material whether mental imbecility arises from insanity, old age, or bodily infirmity; if the testator’s mind is shown to be in a condition not to manage his own affairs or know what he was doing, his will is invalid.</p> <p>2d. That eccentric habits, extreme old age, inconsistent and unaccountable actions, great defect in memory, and mental aberration and delusion, are evidences of such mental imbecility.</p> <p>Sd. That partial derangement of the mind, or an insane delusion as to a particular heir or person, whereby the testator was induced. to exclude him from his will, though sane in other respects, renders the will invalid.</p> <p>4th. That where a person is shown to be subject to fits of mental derangement, the burthen of proof is on the plaintiff (in this issue) to show that his will was made during an interval when the mind was sane, and to prove such sanity.</p> <p>5th. When the evidence discloses a state of facts showing undue influence over the testator’s mind, the jury may take this into consideration as well as imbecility, for they must decide upon all the facts of the case.</p> <p>King, President Judge, in his charge, inter alia, said:</p> <p>There are few subjects coming before Courts of law, that ought to be better understood by the general community, than what is meant in our Courts by the phrase “testamentary capacity.” And yet there are none in which the public are more in error. The prevalent idea is, that in order to constitute “ testamentary capacity, ” the intellect of a testator should be in its most perfect state of integrity, and possess all its original force and vigor.</p> <p>This, however, is an erroneous view of the subject. If such were the requirements of the law, few wills would stand a test so severe. A superstitious dread of executing such instruments, a timid fear that such execution may be the immediate precursor of death, leads to postponements and delay. And it continually happens that the final disposition of a man’s estate, by his last will, is the last business act of his life. One who is enfeebled and exhausted by the pains and sufferings of a mortal disease, and whose mind is agitated by the hopes and fears of eternity, can hardly be said to have his intellect in a perfect state of integrity. And yet a large portion of wills are made under such circumstances, and are every day sustained in Courts of justice. (A disposing mind and memory, in the view of the law, is one in which the testator is shown to have had, at the making and execution of a last will, a full and intelligent consciousness of the nature and effect of the act' he was engaged in; a full knowledge of the property he possessed; an understanding of the disposition he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty.) The wills of the aged and infirm are alike good, although, when compared with their condition in the vigor of life, the minds of such testators may seem relatively enfeebled; provided they are shown, at the making and execution of such wills, to possess such disposing minds as I have just defined to you.</p> <p>Even the will of a maniac is good, provided it has been made during a lucid interval; during a time in which his mind has been restored to healthy though temporary action. The party, however, setting up such a case, must establish clearly the existence of the lucid interval during which it has been made. For general testamentary incapacity, once shown, is presumed to continue until the fact of temporary capacity is established by convincing proofs.</p> <p>Testamentary incapacity does not necessarily suppose the existence of insanity, properly so called. Weakness of intellect, from extreme age, from great bodily infirmity, or from intemperance, to the extent of disqualifying a testator from knowing and appreciating the nature, effect, and consequences of the act he is engaged in, is as much testamentary incapacity as raving madness. (If from any cause an alleged testator is so enfeebled in mind as to be incapable of knowing the property he possesses; of appreciating the effect of any disposition made by him of it; and of distinctly understanding to whom he intends to bequeath it; he is without the testamentary capacity required to make a valid will.) * * *</p> <p>Although incidentally other grounds for impeaching this will have been brought in view, yet the brief question for your decision is the testamentary capacity of the testator, not before, nor after, but at the actual time of its execution.</p> <p>He referred the facts to the jury, to be applied to the principles expounded by the Court. He further said that it had been contended that if the jury should by their verdict find that the testator possessed adequate testamentary capacity at the time of executing the will in issue, this would give validity and effect to the will in favor of Elliott, which it had been stated had been copied from the first will, and which it was contended was executed after the will in question. He said that the said last written will had not been produced, and whatever may be the legal effect of a finding in favor of the will in question in the issue upon the alleged last will in favor of Elliott, that such effect was not a question before the Court.</p> <p>Verdict was rendered for the plaintiff in the issue.</p> <p>It was assigned for error, that the judge erred: 1st. In taking from the jury the question whether the last will did not revoke the prior will in question, and in. treating that question as not under consideration.</p> <p>2d. In his instructions to the jury as to the standard of mental capacity required to make a will.</p> <p>8d. Because, in affirming the points presented, he accompanied them with observations which impaired their effect.</p>

This was a bill in equity filed in tbe Supreme Court, on tbe part of Richard Henry Rush v. Lawrence Lewis and James Henry Blight, surviving trustees under the will of George Blight, deceased, and Murray Rush, an infant.

Appeal of Nathan Baker from the final decree of the Court of Common Pleas of Chester county, distributing the estate and effects of James Yearsley and John Yearsley, late trading under the firm of James Yearsley and Brother, which had been assigned to Charles Downing, William Windle, and Abraham Gibbons, Jr., in trust for the benefit of creditors. 1.

<p>1. The action of the Common Pleas in opening a judgment and in entering judgment for the defendant in the same, in a case stated involving the consideration of the judgment, though erroneous and afterwards reversed, did not dispense with the necessity of a skire facias to continue the lien ; and the lien having been suffered to expire by the lapse of five years before the judgment of the Common Pleas was reversed and judgment entered for the plaintiff, it was Held, that the said judgment was postponed in favor of a subsequent j udgment.</p> <p>2. Real estate, the use and profits of which were devised to the widow of the testator for life, was sold by the widow and another person as trustees under the will and executors, and conveyance in fee was made by them: it was Held that though the widow would be estopped from claiming her life estate as against her vendee, yet that she may not be estopped from claiming against the distributees, who were to receive the proceeds of sale after the termination of her and another’s life estates, her just share of the proceeds of the sale during her life, on proper security being given by her. That question, however, is determinable only when the executors or trustees come before the proper tribunal, in the settlement of their aocounts or otherwise.</p> <p>S. The judgment of the executors was held to be entitled to payment so far as the fund extended, after the payment of a judgment against the purchaser, obtained after the judgment of the executors, but the lien of which was in. existence at the time of the sheriff’s sale of the premises. The distribution of the amount so received by the executors to be settled before the proper Court.</p>

<p>Error to the Common Pleas of Montgomery county.</p> <p>This ^vas an action in trover, brought to November Term, 1850, by Eli Earnest v. James Keisel, to recover damages for an alleged trover and conversion of wheat in the straw, which had grown on. about four acres of ground. February 26,1852, verdict for plaintiff for $108.15 damages with costs.</p> <p>Eli Earnest, the plaintiff, on the 81st day of March, 1848, entered into possession of a tract of 40 acres and 108 perches, of land, situate in Upper Dublin township, and continued thereon two years, viz., until the 1st April, 1850; and he claimed to have occupied the premises as tenant. In the fall of the last year he was there, viz., in 1849, he sowed a field of about four acres of wheat, which was in the ground when he left the premises on the 1st of April, 1850.</p> <p>James Keisel, the defendant, on the said 1st of April, 1850, succeeded Eli Earnest in the possession of the said land, as the purchaser thereof; and about the 4th of July following, cut and harvested the grain growing thereon: and upon claim being made for the grain by Eli Earnest, the previous occupier, Keisel refused to permit him to cut it, and cut and took it away himself; and to recover damage for the taking of the grain the action was brought.</p> <p>On the trial the defendant denied that Eli Earnest was a tenant of the premises; and also claimed, that the grain claimed by the latter had passed to himself by a sheriff’s sale of the land on which it was growing, held October 16, 1849 (while Earnest was in possession), in pursuance of a proceeding in the Court of Common Pleas, for the partition of the said tract of land among the heirs of Baltzer Earnest, deceased.</p> <p>Baltzer Earnest died September 8,1829, intestate, seised in fee simple of several tracts of land, of which the said tract of 40 acres and 108 perches aforesaid was a part, leaving a widow, Catharine, and five children and three grandchildren as heirs. On the 17th August, 1830, the heirs of Baltzer Earnest, deceased, by deed conveyed to Catharine, the widow, the said tract of 40 acres and 108 perches of land, for and during her natural life, as her full dower and thirds in all the lands and tenements of which Baltzer Earnest died seised, subj ect to all the restrictions and conditions to which tenants in dower by the laws of this Commonwealth are subject when dower is legally assigned; she releasing her dower and thirds in the remaining lands, which were immediately partitioned or distributed among the heirs. The said tract of 40 acres and 108 perches was accordingly so taken and occupied by the widow until her death, on the 18th of April, 1847, whereupon the same reverted to the heirs of said Baltzer Earnest, the elder, and to their heirs and assigns.</p> <p>At the widow’s death, Samuel Earnest was in possession of the premises as her tenant, and remained thereon till April 1, 1848, when Eli Earnest entered as aforesaid. There was no lease of the premises to Eli, from the heirs, shown at the trial. The only evidence on the subject of a tenancy by him, was as follows, viz., that William Earnest, an heir, and Samuel Evans, intermarried with an heir of Baltzer Earnest, deceased, had previously given their consent to Eli, that he might enter as tenant; but no time was mentioned for the duration of the term, and nothing was said about any sum he was to pay as rent.</p> <p>It was also shown by the plaintiff below, that Christian Keisel and Ann his wife (who was also an heir) had. subsequently, to wit, in October, 1849, brought an action against him, and recovered $35, as the share of the said Ann of rent, for use and occupation of the premises, for the year ending April 1, 1849.</p> <p>This was the only testimony in the case going to show a tenancy of the premises. There was no testimony showing any agreement or acquiescence, on the part of the remaining heirs, that Eli be in possession as tenant.</p> <p>Eli Earnest being also an heir, it was contended for defendant below, that he must be considered to have occupied the premises as such, and not as tenant.</p> <p>On the 30th January, 1849, an action was instituted in the Court of Common Pleas, between the heirs of Baltzer Earnest, for the partition of the aforesaid tract of land, in which all the heirs, including Eli Earnest (who was in possession), except Christian Keisel, and Ann his wife, also an heir, were plaintiffs, and the said Christian Keisel and his wife were defendants. On the 6th of February, 1849, the narr. was filed, and the case was proceeded in to judgment quod partitio fiat, which was rendered March 2, 1849.</p> <p>All the heirs having refused or neglected to take the premises at the valuation, an order of sale was granted by the Court, August 31,1849, at the instance of the demandants; which, on September 3, 1849, was issued to the sheriff, who sold the said tract of land at public sale, on the premises, on the 16th of October, 1849, to James Keisel, the defendant below, for $5400, according to the conditions of sale, which were offered in evidence at the trial, and contained no reservation of the grain.</p> <p>Eli Earnest was present at the sale, but gave no notice of any tenancy, and made no claim of any reservation of the grain now in dispute, then growing on the land.</p> <p>The sale thus made was confirmed by the Court, the purchase-money paid, and a deed for the premises executed from the sheriff to James Keisel, and acknowledged, November 21, 1849. This deed contains no reservation of the grain, and was relied upon by the defendant below as a defence to the action.</p> <p>Under this deed James Keisel entered into possession of the land, April 1,1850, and in July following he cut and harvested the grain in dispute.</p> <p>J Subsequently to the sheriff’s deed, Eli Earnest, with the other heirs, at the request of the purchaser, executed to him a release for the same premises, dated November 30, 1849.</p> <p>Thus, Eli Earnest claimed to recover, for grain sown by him, while in possession of the premises, and afterwards converted by Keisel, the purchaser, who succeeded him in possession; the said Eli being a joint owner of the premises, as co-heir of Baltzer Earnest, deceased, and a plaintiff in the partition in which it was sold; and there having been nowhere a reservation of the said crop, by or for him.</p> <p>On the part of the defendant, the tenancy of the plaintiff was denied ; but it was alleged, that if there was such tenancy, the right to the grain growing on the land, passed to the defendant by his purchase of the property at the public sale.</p> <p>Smyser, President Judge, inter alia, charged the jury that even in the case of a judicial sale of premises, on which there was a tenant, the right of the tenant to the crop remains, unless the sale was under a judgment prior to the lease. But he charged that the sale under the proceedings in partition, was not a judicial sale: 4 W. & Ser. 184; also Miller on Partition 292. That it was merely a sale by the parties, had ex necessitate, to attain equity of partition or distribution. He referred to the jury the inquiry whether Eli Earnest occupied the premises between April 1848 and.April 1850, as tenant under the owners of the fee, yielding and paying rent; for if he did not live on the premises in that capacity, but merely as part owner of the property, having the same right of entry and occupancy as any of the other tenants in common, then the grain growing on the land would belong to the tenants in common jointly, and not to him exclusively; and would pass by their conveyance to the purchaser, James Keisel. But if he was there as a tenant, yielding and paying rent, and as such put out the crop, then it was his, and continued to be his, notwithstanding the sale, except the one-eighteenth part thereof, which he forfeited by his silence at the sale when he ought to have spoken.</p> <p>He said that the right of the plaintiff to recover depends altogether upon his success in satisfying the jury that he stood in the relation of a tenant. “ If he did, your next inquiry will be into the value of the crop, which was converted by defendant to his own use; and for that we refer you to the evidence. After ascertaining its whole value you will deduct l-18th therefrom; and the residue will be the measure of the plaintiff’s damages in this case.” But he observed, that if the jury found “ that he was not a tenant, but lived on the property simply as one of the joint owners, in that capacity and by virtue of his right as joint proprietor,” he could not recover.</p> <p>On the part of the defendant a point as follows was submitted:</p> <p>There being no reservation of the grain at the time of sale, or in the deed from the sheriff to James Keisel, the purchaser, the grain growing on the premises conveyed by said deed, passed to James Keisel, the defendant, absolutely; and the plaintiff here cannot recover for the same in this action.</p> <p>Answer. We cannot so instruct the jury; but say to them as we have said in our general charge, that if plaintiff was tenant of the premises, yielding and paying rent during the two years from April 1848 to 1850, then his right to recover the value of his crop is not affected by anything in the sheriff’s deed; nor is it impaired by anything that occurred at the sale, beyond the l-18th part thereof; to which extent his right would- be forfeited by his presence and silence on that occasion, when the land was being sold without any reservation.</p> <p>But if he was not a tenant, then the grain growing belonged to all the tenants in common, and the want of reservation as stated in the point, would in that case vest it in the purchaser.</p> <p>Error was assigned: That the Court erred, 1. In instructing the jury that they “must determine for themselves, from the evidence, whether Eli Earnest leased the premises from his co-heirs and co-tenants, and in the relation of tenant put out the crop.” And that “ the jury will see then, that the important inquiry for them is, whether Eli Earnest occupied these premises between April 1848 and April 1850, as tenant under the owners of the fee, yielding and paying rent.” 2. In making the cause turn on the finding of the jury, whether or not Eli Earnest was tenant of the premises at the time he sowed the grain. 8. In submitting to the jury the question as to whether the plaintiff was tenant of all the heirs, during the period from April 1, 1848, to April 1,1850; as there was no evidence in the case to warrant it. 4. In referring to the jury the question, whether the plaintiff was tenant of the premises for the year ending April 1, 1850, when there was no evidence whatever in the case, going to show that he was tenant during that period. 5. In charging the jury that, “ By the conveyance of his (the plaintiff’s) estate in the land, he must be held to grant all that is properly appendant or appurtenant to the land and his estate in it: this would pass his right as owner to his share of the rents; but it no more included his right as tenant to the growing crop, than if that crop were growing on different premises altogether from those conveyed.” 6. In charging that although there was no reservation of the grain in the conditions publicly read, at the sale at which Eli Earnest was present, and he gave no notice of his claim, yet he was only concluded as tenant by his silence as to l-18th of the rent. 7. In charging, “ But, if he was there as tenant, yielding and paying rent, and as such put out the crop, then it was his, and continued to be his notwithstanding the sale, except the l-18th part thereof, which he forfeited by his silence at the sale, when he ought to have spoken.” 8. In charging that, “ The right of the plaintiff to recover depends altogether upon his satisfying (the jury), that he stood in the relation of tenant. If he did, your next inquiry will be into the value of the crop. After ascertaining its whole value, you will deduct l-18th therefrom, and the residue will be the measure of the plaintiff’s damages in this case.” 9. In refusing to answer affirmatively the defendant’s point, and in answering it as he did. 10. In charging that the sheriff’s sale of the premises was not a judicial sale.</p>

<p>1. The widow of an intestate, before taking out letters of administration, held a vendue of her late husband’s property, and sold a eanal-boat to the defendant, on three months’ credit, the purchaser to give security for his purchase before delivery. About five months afterwards, the widow obtained letters of administration, and brought suit for the price of the boat:</p> <p>Held, that, if the boat had been delivered, the title of the plaintiff being perfect before suit, the defendant had no right to object that the title of the plaintiff was imperfect at the time of the sale and delivery, he not having renounced the sale before the plaintiff’s title was perfect and the price demanded.</p> <p>5. But if the sale and delivery were disputed, it was error in the Court to assume it.</p>

<p>Certiorari to the Common Pleas of Chester county.</p> <p>On the 7th May, 1851, a petition by the President of the Chester Valley Railroad Company, incorporated by Act passed on 22d April, 1850, was presented to the Court of Common Pleas of Chester county, in which it was represented that the said company was desirous to enter upon and take certain real property in said county, on and near the line or route of the said railroad; and was desirous to make proper compensation therefor to the owner or owners thereof, in conformity to the 7th section of the Act of Assembly of this Commonwealth incorporating said company, passed 22d April, 1850, and the 10th and 11th sections of an Act entitled “ An Act regulating railroad companies,” passed on the 19th February, 1849; “ but that the said company cannot agree with the owner or owners thereof for the compensation proper for the damages done, or likely to be done to or sustained by such owner or owners, and that no compensation could be agreed upon for reasons contemplated and mentioned in the said 11th section. And also praying the Court to appoint seven freeholders as viewers, and to appoint a time for said viewers to meet at or upon the premises where the damages are alleged to be sustained,” and justly and equitably to decide and report, &e., and further to make such further orders as shall enable the company to make to the owner or owners the compensation provided for in the said Acts of Assembly, and as shall protect the company from further liability in the premises.</p> <p>The Court appointed seven persons as viewers, to meet on the premises on the 2d June next afterward; and ten days’ notice of the time and place of meeting to be given to the parties in interest. The viewers to meet at 10 o’clock of said day.</p> <p>On 28th July, 1851, the report of viewers with drafts was filed; and on the 30th July, the report was read and confirmed nisi, with leave to all parties to file exceptions within ten days. On the part of Reitenbaugh and others exceptions were filed, and rule was granted to show cause why the report should not be set aside. Exceptions on the part of other persons were subsequently filed. The exceptions on the part of Reitenbaugh were as follows :</p> <p>1. It ought to have appeared to the Court, prima facie, by affidavit, or some other form of evidence, that an effort had been made with the freeholders through whose land the road passes, to agree upon the compensation to he paid to them before an order issued.</p> <p>2. No offer was made by the said railroad company to settle with the exceptor, nor was any attempt or effort made by said company to agree with him on the amount of compensation to be paid by said company, either before or since the said petition, was presented, or said order issued.</p> <p>3. The order to the said freeholders does not pursue the requisitions of the Acts of Assembly, on which the same is founded.</p> <p>4. The time for the assessment of the damages done, or the compensation to be made to each freeholder through whose property the road passes, ought to have been fixed and appointed in the order.</p> <p>5. The petition ought to have set forth the names of the several persons through whose property the road passes, and who were entitled to compensation.</p> <p>6. The order appoints the 2d day of June for the freeholders named in the order to meet on the premises, and directs notice of that time to be given to the parties in interest; yet the freeholders-did not meet on the premises, of which your exceptor is seised, on that day, nor was any notice giyen to him of any meeting at that time.</p> <p>7. The compensation to be made to the owners of the lands through which the road passes, could not be ascertained without the examination of witnesses; yet the said freeholders declined to examine witnesses as to the damages heretofore done to the ex-ceptor, although earnestly pressed and urged so to do.</p> <p>8. The return of the jury ought to set out particularly the matters for which damages are allowed, which is not done.</p> <p>9. The jury ought to have reported the several subjects of injury for which they allowed compensation, and which they considered, in order that it might appear of record in case future injury should occur, whether that particular injury was or was not within the contemplation of the said freeholders.</p> <p>10. The report of the jury does not distinguish, as it ought to have done, between past and future damages.</p> <p>- 11. The said freeholders have awarded to this exceptor the sum of eight hundred dollars, which is entirely insufficient to compensate him for the damage which he has sustained, and must necessarily sustain by reason of the said railroad passing through his property.</p> <p>12. The said freeholders have not stated for what injuries the said damages or compensation has been allowed.</p> <p>13. The said' freeholders do not appear to have allowed any damages for the injuries likely to be done by the use of locomotives.</p> <p>14. The said freeholders do not appear, by their report, to have allowed damages or compensation for all the lands occupied by the road, nor to have at all considered the damages likely to arise in future.</p> <p>15. The said freeholders do not appear to have allowed any compensation for a large amount of limestone taken from his premises in the construction of the road, which limestone was not less than two thousand dollars in value.’</p> <p>16. The said freeholders do not appear to have allowed the ex-ceptor any compensation for the fence, necessarily erected by him at the time the road was in part made through his premises, to protect his crops from injury.</p> <p>17. The said freeholders do not appear to have allowed the ex-ceptor, and have not (as your exceptor believes) allowed him any compensation for the depreciation of the value of his property which must be occasioned by the road.</p> <p>18. The said freeholders have not allowed compensation for all the injuries which the road must occasion to the property of the exceptor, and have not in this respect obeyed the order of Court or the requisitions of the law.</p> <p>19. The said petition of the said Chester Yalley Railroad Company is insufficient; the said ■ order is irregular and has been illegally executed, and the said report of the said freeholders is' not in conformity with the law.</p> <p>The facts stated in the exceptions were affirmed to.</p> <p>In the report of the viewers, it was stated that they met at the time and place appointed in the order (after being qualified, the requisite notice having been given), and proceeded, by adjournment from time to time, to view the premises and estimate the damages, and they reported that they award to the persons named the amount set opposite their respective names, &c.</p> <p>An examiner was appointed to take depositions, and depositions were taken.</p> <p>On 15th March, 1852, the exceptions were dismissed, and the report was confirmed.</p> <p>Exceptions to the decree of the Court were filed : 1. That the Court erred in’ overruling the first exception.</p> <p>2. From’ the 2d to the 7th inclusive, that the Court erred in overruling the several exceptions numbered in the same manner; 8. In overruling the tenth exception; 9. In overruling the eleventh exception; 10. In overruling the thirteenth exception; 11. In overruling the nineteenth exception.</p>

<p>1. Tie duties of sovereign and subject are reciprocal, and any person who is protected by a government in his person or property, may be compelled to pay for such protection.</p> <p>2. Personal property, in consideration of law, has no fixed locality, but follows the person of its owner, and is subject to the law of his domicil, and may be taxed by the government under which he resides.</p> <p>3. The domicil of origin is presumed to continue until it is changed by acquiring a domicil elsewhere. No temporary sojourn in a foreign country will effect such a change.</p> <p>4. When neither the personal property taxed nor the domicil of its owner is within this state at the time of his death, such property is not subject to a collateral inheritance tax by virtue of the laws of this Commonwealth.</p> <p>5. A person, born a citizen of Pennsylvania, removed to Cuba, settled there and engaged in the trade of that island; the presumption in favor of the continuance of the domicil of origin no longer existed, and the burden of disproving the domicil of choice lies on him who denies it.</p> <p>6. The long residence of the testator in Cuba under circumstances indicating an intention to remain there, neither his investments in Pennsylvania or. his concern in a mercantile house here, or his occasional visits to this state, effected a change in the place of his abode; nor can the expression of his desire to be buried in the land of his birth, and the execution of that wish by his executor, nor the death of the testator in France, change the state of the case as it existed at his death.</p> <p>7. The laws of Cuba requiring the profession of the Catholic religion as a preliminary to the issuing of letters of domicil, and the will of the testator containing a recital of his profession of such faith, and that he was authorized by his letters of naturalization to dispose of his property by will, such acts are too decided to be repelled by slight evidence.</p> <p>8. But it would be contrary to morality for the state of Pennsylvania to claim the advantage of a fraud perpetrated in such profession; and all persons who claim under the will of the testator made in Cuba, are hound to treat such professions as true.</p>

<p>This was a proceeding in the name of the Commonwealth, on a bill signed by the Attorney-General, and presented to the Supreme Court at Pittsburgh, on October 11, 1852. A motion was made for a special injunction to issue to the Eranklin Canal Company, and on the 16th October, counsel appearing for the company, the Court ordered the motion for a special injunction to stand over for hearing at Philadelphia, on the 2d Monday of December following.</p> <p>In the bill an injunction was asked against the construction and use of the railroad constructing by the Eranklin Canal Company, extending from the city of Erie to the Ohio state line.</p> <p>The Act to authorize the governor to incorporate the Eranklin Canal Company, was passed on 27th April, 1844, (Acts, page 471, &c.) By the 3d section of the Act it was provided, “ That immediately upon the issuing the letters patent by the governor, as provided by the second section of this Act, the Eranklin division of the Pennsylvania Canal from the aqueduct over Erench Creek, on the French Creek feeder, to the mouth of Erench Creek, shall be immediately vested in the said corporation authorized to be created by this Act and their successors for ever, unless the Commonwealth should resume the said division under the provisions of the eighth section of this Act,” &c.</p> <p>By the 6th section it was provided that whenever two thousand or more shares of stock shall have been subscribed (which by the first section of the Act was to be $125 per share), the said company shall be authorized to reconstruct or repair the said canal and slackwater navigation; and may substitute canal for slack-water, &c., and it was provided, that when four miles of the line were completed, they might by license from the governor be authorized to collect tolls.</p> <p>By the 8th section it was declared that at any time thereafter, it should be lawful for the Commonwealth, upon the passage of a law by the legislature for that purpose, to resume the canal, &c., upon paying the company the amount expended by them for repairs and supervision, with interest thereon, &e.</p> <p>By the 9th section it was enacted, that if the company be not organized before the first of May, 1846, the privileges granted by the Act were to be null and void.</p> <p>By the 8th section of an Act approved on 9th April, 1849, (Acts, p. 766), authority was given to the Eranklin Canal Co. to elect officers at any time before the 1st of August, 1849; and it was enacted that no failure before to elect officers, or any other irregularity, should be taken or construed to work a forfeiture of the charter of the company.</p> <p>By the 9th section it was enacted, “that the said company, instead of constructing a canal, or completing and repairing the work done by the Commonwealth, have the privilege of constructing a railroad if deemed the most expedient, and to use the graded line or towing path of the said canal as the'bed of the said road.”</p> <p>Section 10. “ That upon the said company’s increasing the stock to the amount of five hundred thousand dollars, it shall have the privilege of extending from the north end thereof to Lake Erie, and from the south end to Pittsburgh, by such route as the said company shall deem most expedient and advantageous; the said railroad shall be constructed subject to all the provisions and restrictions of an Act regulating railroad companies, passed the nineteenth day of February, A. D. one thousand eight hundred and forty-nine,” &c.</p> <p>In the bill reference was made to the Act of 27th April, 1844, for the incorporation of the Franklin Canal Company; to the Act of 9th April, 1849, referred to, and to a provision in the Railroad Act of 19th February, 1849, requiring the payment of $5 on each share of stock subscribed for.</p> <p>It was charged that the Franklin Canal Company failed to become organized within the time limited by the Act of 27th April, 1844, and that the privileges granted to it by that Act became void. But if such rights were restored to it by the Act 9th April, 1849, that it was the meaning of the said Acts of April, 1844 and 1849, that it should enjoy such rights upon the subscription of the first 2000 shares of stock, and of constructing or repairing the canal or slack-water navigation along the line of the Franklin division of the Pennsylvania Canal from the aqueduct over French Creek, to the mouth of French Creek; or instead of constructing a canal or completing the repairing of the work done by the Commonwealth, constructing a railroad, if deemed most expedient, between the same points only, through and over the same route, and using the graded line or towing path of the said canal as the bed of the said road, and no other or greater privilege whatever; and that upon the'increase of their capital stock to the amount of $500,000, the said company were to have the additional privilege of extending their railroad or other improvements from the north end of the said Franklin division, as aforesaid, to Lake Erie, and from the south end thereof to Pittsburgh.</p> <p>It was further averred to have been the meaning of the legislature, that the first 2000 shares of stock should be applied to the reconstruction or repair of the work on the Franklin division, or the construction of a railroad between the aqueduct and the mouth of French Creek ; and that the construction of the railroad, canal, or other improvement between such points, was a condition precedent to the exercise by the company of the additional privilege of extending the same from the north end thereof to Lake Erie, or from the south end to Pittsburgh.</p> <p>It was averred that the said company had not constructed or repaired the said canal, or any portion of railroad along the line of the Franklin Canal, from the aqueduct over French Creek, on the French Creek feeder to the mouth of French Creek; nor increased its capital stock to the amount of $500,000, within the terms of the Act of 19th February, 1849; but that the president of the company, confederating with citizens of Ohio and Now York, constructed a railroad from the city of Erie along the shore of Lake Erie, to the Ohio state line, without any purpose of extending the same to the north end of the said Franklin Canal, but with the sole intent and design of forming a connection with another railroad in process of construction, under the laws of Ohio, from Cleveland, in that state, to the Ohio state line, known as the Cleveland, Painesville, and Ashtabula Railroad. And it was further alleged that if said company had the power to construct the railroad northward from the terminus of the Franklin Canal to Lake Erie, without constructing or repairing the canal, or constructing a railroad along its line, yet that the design of the Acts was that the road should be constructed northward from the canal in as nearly a straight line as the nature of the ground would allow, to Lake Erie, at the most practicable and convenient point for commercial purposes on said lake.</p> <p>It was averred that the necessary consequence of the construction of the road from Erie along the lake to the Ohio state line, and the contemplated connection with the Cleveland, Painesville, and Ashtabula Road, will be to divert the trade and travel of the country from the great line of public improvements.</p> <p>It was further averred, that in the construction of the road from Erie to the Ohio state line, along the lake shore, they had located the same across the public highways of the Commonwealth, and several streets and lanes in the city of Erie.</p> <p>After other suggestions, interrogatories were submitted:</p> <p>It was asked that the company be restrained from proceeding in the construction of the road from Erie to the Ohio state line or its vicinity, and from using the same when completed — from misapplying the funds of the company — from crossing or interfering with the public highways within the county of Erie or elsewhere, and that such other relief be granted as the equity of the case may require.</p> <p>In the plea and answer the company claimed the benefit of the letters patent.</p> <p>It was also ansAvered that in pursuance of the Act of 27th April, 1844, 200 shares of the stock were duly subscribed, and the subscription certified a sufficient time before the 1st of May, 1846, to enable the governor to issue the letters patent and the company to organize before that date; but OAving to some cause, not attributable to them, the company was not organized till the 21st May, 1846.</p> <p>That by the Act of 9th April, 1849, the company was authorized to elect officers at any time before the 1st August 'following, and it was provided that no failure to elect shall work a forfeiture of the charter; also that the company made annual reports; that it has paid into the treasury of the Commonwealth, the amount of taxes assessed by law on its corporate stock. Also, that by the 3d section of the Act 27th April, 1844, the Franklin -division of the Pennsylvania Canal, from the aqueduct over French Creek to the mouth of French Creek, was vested in the said company, and all the real and personal estate owned by the Commonwealth for the. use of the canal, subject to the right of the Commonwealth to resume it upon compensation to the stockholders. That the work so vested in the company, consisted in part of slack water in the bed of French Creek, and in part of sections of canal and locks. That the state afterwards, in pursuance of an Act passed on 9th April, 1849, resumed the Franklin division of the Pennsylvania Canal, except the towing path, berm-bank, and bed of the canal along the said line. That by the said Act of 1849, there was conferred upon the company privileges, 1. To construct a railroad instead of a canal: 2. To increase their capital to $500,000: 3. To build a railroad from the north end of the Franklin Canal to Lake- Erie:</p> <p>4. Also from the south end of said Franklin Canal to Pittsburgh:</p> <p>5. And to adopt “ such route as the said company might deem most expedient and advantageous.”</p> <p>'*lt was represented that one section of the railroad of the company, to wit, from the city of Erie to the west line of Springfield township in Erie county and the east line of Ohio, in length twenty-five miles and three-tenths, was completed and in use on 27th November, 1852. That the said line was located in 1849, put under contract in January, 1850, and from that time the work was prosecuted; and that during that time the legislature was advised of the progress of the work. That the company made a report to the legislature, dated February 13, 1850, that they had employed engineers to locate that portion of the work on the route contemplated in the original Act, and to extend their line north to Lake Erie, &c.</p> <p>And it was suggested that, the Commonwealth having so long acquiesced in their action, and the respondents having made large expenditures under what they believed to be lawful authority, without objection or complaint on the part of the Commonwealth, the latter had no title to the relief in equity prayed for in the bill.</p> <p>It was also alleged in the answer that the company preferred to finish the section from the city of Erie, to that point where the route of the road would connect with a railroad from Cleveland, for the reason that that section would immediately yield income and aid the means and credit of the company; thereby enabling them better to proceed with their section of road to the aqueduct over French Creek. The right to construct the road from Erie to the Ohio line, which was the road complained of, was claimed on the part of the company under the authority given in the Act of 9th April, 1849, to construct the road from the north end of the Franklin Canal to Lake Erie, “by such route as the said company shall deem most expedient and advantageous and a statement was made in the answer for the purpose of showing that the course of the company had been prudent and proper; and the route on which their road had been constructed expedient and advantageous.</p> <p>It was alleged in the answer, that two routes for a railroad existed between the aqueduct over French Creek and Lake Erie. That one of the routes called the French Creek and Waterford route, passes from Erie in a direction generally south-eastwardly (though tortuous between Erie and the Le Boeuff summit), to the vicinity of Waterford; thence in a generally southern, direction along the valleys of the Le Boeuff and French Creeks to the aqueduct. The other passes from Erie, in a south-westwardly and very straight course, 'nearly parallel with the lake-shore, and with the ridges’ extending in the same direction, to the township of Springfield, in Erie county, where, turning to the south, it passes southwardly and south-eastwardly, along the open valley or depression of the Conneaut, crossing the summit, and thence in a southeastwardly direction to the aqueduct. That of these two routes the engineers and directors of the Franklin Canal Company preferred the latter as most expedient and advantageous, both to the company and the public. It was further alleged that upon principles of engineering, the second or Conneaut route was the most expedient and advantageous; but if the two routes were equal, that the Conneaut route was preferable on account of the easy and ready connections still further west, putting the said company in a situation to complete their whole road sooner than by any other route, and at the same time turning into Pennsylvania and Erie and upon the Sunbury and Erie Railroad, a large amount of travel and freight which Avould otherwise not be had, and affording to the citizens of Erie an opportunity of reaching Philadelphia by Cleveland and Pittsburgh, by a route no longer in distance than by the way of Dunkirk and Newr York.</p> <p>It was further alleged that it was and had always been the intention of the company to construct the road from the harbor and city of Erie to the said aqueduct as soon as their means would permit, and fully to comply with the requirements of their charter; and that they had by resolution appropriated the net earnings of the road to such construction, and had by reason thereof declared no dividend.</p> <p>It was further said that the company had been advised and believe that it was not the intent of the legislature that the railroad northward, from the terminus of the Franklin Canal to Lake Erie, should he constructed northward from the said canal to Lake Erie, in as straight a line as the nature of the ground will admit.</p> <p>It was further denied that the Commonwealth, by virtue of any power of redemption, or in any other manner, has any interest in the application of the means of this company; and if it has any interest, it was averred that it was not sufficient to support the bill. It was denied that the Lake Shore Road, or any part of it, had been constructed with a view to defeat the intention of the legislature in the creation of this .company, or to hinder or defeat the construction of any portion of the road which the company was authorized to make.</p> <p>It was denied that the necessary consequence of the construction of the railroad between the city of Erie and the Ohio state line was to divert the trade and travel of the country from the works of this Commonwealth ; but that on the contrary, since the construction of this road, the business on the state works has largely increased.</p> <p>It was admitted that the company had constructed its railroad across several highways, in the townships of Springfield, &c., and across several streets in the city of Erie; but it was averred that it did not cross the Lake Road or Lake Shore Road, as averred in the bill. It was averred that the company had the right to cross roads and streets, and that the roads and streets passed over are crossed by sufficient causeways constructed by the company on plans submitted-to the road commissioners of the several townships, or to the city councils of Erie, and approved by them.</p> <p>It was further alleged that the said road, from Erie to the Pennsylvania state line, was a post route, under the Act of Congress, approved on 3d March, 1853, and that the mails of the United States are carried thereon under the authority of the Postmaster General, &c.</p> <p>In another paper it was alleged that the company had purchased in fee simple all the land covered and used by their railroad between Crooked Creek and the Ohio state line, about five miles; and further, that they had purchased, in fee simple, all the land covered and used by their railroad between the city of Erie and the Ohio state line, except about half a mile near the city of Erie, in which they have purchased and held a perpetual right of way.</p> <p>In relation to the issuing of injunctions, it is provided by the first section of the Act of 6th of May, 1844, as follows: — “ That no injunctions shall be issued by any court or judge until the party applying for the same shall have given bond, with sufficient sureties, to be approved of by said court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction.”</p> <p>The other sections of this Act refer to other subjects.</p>

<p>This was a bill in Equity praying for an injunction, and was filed on the part of Tbe President, Managers, and Company of the Delaware and Hudson Canal Company v. The Pennsylvania Coal Company. It was filed at Pittsburgh, in tbe Western District of the Supreme Court, on the 21st October, 1852.</p> <p>A subpoena was awarded returnable at Philadelphia, on the second Monday (13th) of December next following, at which time tbe application and motion to be heard. It was further ordered, that the writ of subpoena be directed for service to the sheriff of Wayne county, Pa.</p> <p>Tbe plaintiffs were a corporation created under the laws of New York, by virtue of a statute of that state, passed on tbe 23d April, 1823. That Act was amended by other statutes of that state, passed on Tth April? 1824; 19th Nov. 1824; and 20th April, 1825.</p> <p>By an Act of the legislature of Pennsylvania, of 13th March, 1823 {Acts, p. 74), Maurice Wurtz, his heirs or assigns, was authorized to improve the navigation of the Lackawaxen. By the Act of 1st April, 1825 {Acts, p. 141), it was enacted, That with the consent of Maurice Wurtz, his heirs or assigns, it should be lawful for “ The President, Managers, and Company of the Delaware and Hudson' Canal Company” to improve the navigation of the said river in the manner authorized by the said Act of 1823. By a further Act of 9th February, 1826 {Acts, p. 25-6), it was provided,] that if the Company reduce their locks below a certain standard, then they should not make a slackwater navigation, but in lieu thereof, a canal navigation.</p> <p>It was alleged in the bill, that by the Acts of Assembly of Pennsylvania, the complainants were authorized to construct a canal within this state from Honesdale to the Delaware river. And by the statutes of New York, they were authorized to construct a canal along and from the Delaware river, in the state of New York, to the Hudson river; and that they constructed a canal from Hones-dale, in Pennsylvania, to the Hudson river. That they were authorized to collect tolls, and had established an office at Hawley for that purpose, and had established a code of by-laws and regulations for the conducting of the canal.</p> <p>The Pennsylvania Coal Company was a corporation existing in pursuance of a statute passed 16th April, 1838, and of various supplements. It was stated, that it had constructed a railroad of forty-seven miles in length, from Hawley, in Wayne county, to Port Griffith, in Luzerne county, the eastern part of the road terminating on the canal of the complainants; and that it conveys coal on their canal.</p> <p>Reference was made to an agreement of 31st August, 1847, between the complainants, and The Wyoming Goal Association, relative to the transportation of the coal of the said Association on the canal of the complainants. The canal company agreed to furnish facilities of navigation and transportation on their canal, “ charging and collecting a toll on the coal transported in pursuance of this agreement, at a rate per ton of 2240 lbs. to be established as specified therein.”</p> <p>By the terms of the contract of 31st August, 1847, in relation to the mode of fixing the tolls, it was agreed as follows:</p> <p>On the 1st day of May, in each and every calendar year, the quantity of lump coal of the said Delaware and Hudson Canal Company which shall at that time have been sold to be delivered at Rondout, and to arrive by the said canal during the said calendar year, shall be ascertained, and the average price at which such sales shall have been contracted shall also be ascertained; and from the average price thus ascertained, Two dollars and fifty cents shall be subtracted, and one-half of the remainder shall be the toll per ton during such calendar year, except that if any discount or deduction, contingent or otherwise, shall be agreed upon or contemplated in the contracts for such sales, the said toll shall be reduced correspondingly to such discount or deduction as shall be actually made. But provided, nevertheless, that if on the 1st day of May in any calendar year, the quantity of lump coal of said Delaware and Hudson Canal Company, which shall at that time have been sold as aforesaid, shall be less than one-half of the estimated sales for such year, the toll during such year shall be calculated in the manner hereinbefore provided at the average price at which the sales of lump coal for such year shall be actually made; and if in any calendar year no sales of the coal of the Delaware and Hudson Canal Company shall bé made, then and in that case the tolls during such year, shall be calculated on the sales for such year of the lump coal sold by the said “ The Wyoming Coal Association” for the time being, or its assigns, in the manner hereinbefore provided for calculating the toll on the sales of the said Delaware and Hudson Canal Company.</p> <p>And in case of an enlargement of said canal, the said President, Managers and Company, and their successors and assigns, may also charge and collect an additional toll on the coal transported in pursuance of this agreement, at a rate per ton of two thousand two hundred and forty pounds, to be established after the completion of the said enlargement in the manner following, &c.</p> <p>An agreement of 30th November, 1849, was made between the complainants and the Pennsylvania Coal Company in relation to the sale of coal, to be produced and delivered at Eddyville, by the Pennsylvania Coal Company. By this agreement the complainants were to receive and sell the coal of the defendants, delivered at Eddyville, commencing with the product of 1850, upon certain terms and conditions specified. The seventh item of the agreement was as follows: — “ The toll on canal for the coal of the Pennsylvania Coal Company shall be considered payable at Bondout, subject to the agreement with the Wyoming Coal Association of 31st August, 1847.”</p> <p>By the 8th item it was provided that “ The Pennsylvania Coal Company shall provide funds to meet the toll and canal freight to be paid on its own coal.” The defendants were to pay to the complainants eight cents per ton for coal sold for them by the complainants, which amount, with the rateable proportion of expenses, was to be in full compensation for services in the sale, weighing, care, custody, supervision, forwarding, or otherwise of the coal of the defendants.</p> <p>Another agreement under seal, dated 29th July, 1851, was made between the said canal company and the Pennsylvania Coal Company, in which reference was made to an annexed agreement between the canal company and the Wyoming Coal Association, of the 31st August, 1847, in which it was stated that at the instance and request of the latter, the Pennsylvania Coal Company had constructed a railroad from the coal lands of the association to the Delaware and Hudson Canal; and that all the business and interests of the Wyoming Coal Association had been assigned to, and were then vested in, the Pennsylvania Coal Company. It was agreed that the covenants and stipulations in the said agreements shall be deemed to be, in all respects, the contract of the parties to the present agreement, &c.</p> <p>In addition to a reference to the said agreements, it was alleged in the bill of complainants, that on the 1st of May previous, viz., 1852, the complainants had not sold, and could not sell, the one-half of the lump coal estimated to arrive at Rondout during the current year; that, in accordance with the articles of agreement, before the said 1st of May, they had charged to the defendants, upon the anthracite coal to be transported on the canal, a toll of fifty cents per ton, which it was alleged was less than, under the agreement, they were entitled to charge, but that the complainants have used the canal, but have refused to pay tolls, except on the coal transported during one day in May; but had denied the right of the complainants, under the provisions of the contract, or by law, to collect any tolls from the defendants for the transportation of their coal.</p> <p>It was further alleged that the defendants had paid a part of the tolls under protest.</p> <p>Also; that in order to avoid the agreement, the defendants, on the 19th May, 1852, filed in the Supreme Court of New York a bill in equity, praying, inter alia, for a perpetual injunction against the complainants from stopping the boats of the coal company for non-payment of tolls, in which proceeding the provisional injunction was obtained against detaining any boat of the coal company on account of the non-payment of tolls, until the further order of the Court.</p> <p>It was averred in the present bill, that the articles of agreement between the parties in the case, ought not to be enforced against the complainants, because, according to the construction put upon them by the defendants, and under which construction the injunction was obtained, they are contrary to the provisions of the statutes, and that the officers who executed the agreement on behalf of the present defendants had no legal power to enter into the agreement. And also because it was uncertain in its terms ; that mutuality is wanting, as, whilst the complainants are claimed to be bound, the defendants have not contracted to pay any tolls, and up till the 4th October, 1852, refused to pay the same, and after-wards paid under protest, and seek to obtain from the Court in New York a permanent injunction enjoining permission to navi-. gate the canal without the payment of tolls.</p> <p>It was alleged that because the rights pertaining to the complainants have been denied; because under the agreement the complainants have no remedy by the laws of this state, and can sustain no action against the defendants in law or equity, for recovering toll; because the understanding of the complainants at the time of entering into the articles of agreement was, that they might fix and charge the amount of tolls to be paid by defendants and collect the same; because the complainants were bound by law to make dividends; and also were bound to pay to the treasury of Pennsylvania the amount of state tax chargeable by law, and if the construction alleged by the defendants be put upon the contract, the payment of the tax to this Commonwealth may be defeated ; and it being further alleged that by the Act of 13th March, 1847, it was required that a majority of the managers should be citizens of Pennsylvania, and that the president and a majority of the managers of the Pennsylvania Coal Company were residents of New York and not citizens of Pennsylvania, and had no legal power to enter into the said articles of agreement, and that the said company, from the 1st of May till the 4th October, 1852, have continued to navigate the canal, under pretence of the provisional injunction, and declare their intention to do the same without payment of tolls, it was asked that answers be filed to the matters alleged, and that a subpoena issue commanding the appearance of the defendants, and that a decree be made that the defendants deliver up the articles of agreement to be cancelled, and that the defendants be restrained by injunction from commencing and prosecuting any action at law against the complainants touching any of the matters aforesaid. Also, that the defendants be restrained from using the canal, without obtaining for their boats permits and clearances and first paying the tolls according to law; and that such other relief be granted as may seem to be propér.</p> <p>A demurrer to the bill was filed on the ground that the complainant had not submitted such a case as entitled it to any discovery or to the relief prayed for: Further, that it did not appear in the bill that the complainant has not a complete remedy at law; but that if the allegations stated were true, the complainants had a full remedy at law; further, that the questions arising in the case as to the respective rights and obligations of the parties, are involved in the proceeding pending in the Supreme Court of New Yorlc, and that it did not appear that that Court had not jurisdiction in the matter; and that if all the allegations in the bill were true, no title to the equitable relief prayed for arose.</p> <p>And for further cause of demurrer to the said bill, it was alleged on the part of defendant:</p> <p>First: That it does not appear, and is not stated in the bill, at what rate the complainant, during the period referred to in the said bill, was entitled to charge tolls under the provisions of the articles of agreement therein recited; nor are the facts from, which alone the said rate can he calculated in the manner provided in the said articles of agreement, stated in the said bill, although these facts are in the exclusive knowledge of the complainant.</p> <p>Secondly. That while it does not appear in the bill that the complainant has charged, or demanded, or claimed to have been entitled to receive more than fifty cents per ton on the coal transported by the defendant, during the season of 1852, it is stated in the said bill that the defendant transported before the 3d day of October of that year, two hundred and eighty thousand tons of coal, and upwards, and paid “on account of tolls” thereon, $160,000; and that since the 4th of said October, has paid at the rate of sixty-four cents on each and every ton by it transported ; whereby it appears, on the complainant’s own showing, that the said complainant has received more tolls on the said coal than it is stated in the said bill to have charged, demanded, or claimed to have been entitled to receive.</p> <p>And for further cause of demurrer to so much and such parts of the said bill as allege that the articles of agreement therein recited ought not to be enforced, because the said articles, under the construction put on them by the defendant, are contrary to the provisions of the statutes recited, subversive of the rights of the stockholders of the complainant, and beyond the power, under the said statutes, of the officers who executed them on the part of complainant, to bind the complainant thereby, and are so uncertain that the rights of the parties cannot be ascertained under them; and are without mutuality between the parties thereto, and are in their operation contrary to the understanding of the complainant at the time of entering into them; the defendant shows,</p> <p>First. That all the said allegations are hypothetical and not positive, and that the complainant, in other parts of the said bill, expressly repudiates and denies the truth of the hypothesis on which the said allegations are by itself made to depend.</p> <p>Secondly. That it is not shown in the said bill that the construction of the articles of agreement therein recited, which is alleged by the complainant as the ground for invalidating the said ai’ticles of agreement, renders the said articles of agreement contrary to the said statute, or so uncertain that the rights of the parties thereto cannot be ascertained, or without mutuality.</p> <p>Thirdly. That the said allegation as respects the uncertainty of the said contract, if well founded, has no relation to the specific relief prayed for in the said bill, or to any relief which can be granted in this action.</p> <p>Fourthly. That the said allegation, as respects the want of mutuality of the said contract, is unfounded and indefinite, and has no relation to the specific relief prayed for in the said bill, or any relief which can be granted in this action.</p> <p>Fifthly. That all the said allegations are immaterial and irrelevant, and are too indefinite for an answer thereto to be required; and do not, on the complainants’ own showing, entitle it to the equitable relief prayed for in the said bill, or to any equitable relief.</p> <p>And for further cause of demurrer to so much and such parts of the said bill, as seek to avoid and annul the articles of agreement recited in the said bill, on the allegation that a certain Act of the legislature of the state of Pennsylvania, entitled “An Act in relation to certain corporations,” passed the 13th day of May, 1847, applies to the defendant, shows,</p> <p>First. That it does not appear, by the Acts relating to the defendant, referred to in the said bill, that the said company is a Railroad Company, within the meaning of the said Act of May 13th, 1847, hut the contrary appears:</p> <p>Secondly. That if the said Act did apply to the said company, and its directors were none of them residents of the state of Pennsylvania, the election of the said directors would be void only as against the state of Pennsylvania, and the invalidity of such election, as against the said state, cannot be taken advantage of by the complainant in this action, or by any other party than the state, or by any party collaterally.</p> <p>Thirdly. That if the said election of directors were void generally, the said articles of agreement would not thereby be rendered invalid, but would still be binding upon the parties thereto.</p> <p>Fourthly. That if the said articles of agreement were void, the complainant would have a full and complete remedy in respect thereto at law, and no facts are shown in the said bill to bring the case within the class to which alone the equitable relief prayed for, or any equitable relief, is applicable.</p> <p>Fifthly. That if the said Act did apply to the defendant and did operate to invalidate the said articles of agreement, a Court of Equity would not interfere to enforce a penalty in the nature of a temporary forfeiture of the corporate franchises of the defendant; and still less to extend the effects of that forfeiture, beyond the objects and policy of that Act, to the annulling of a private contract made in the course of the legitimate business of the defendant.</p> <p>Sixthly. Nor if the said Act did so apply and operate, would a Court of Equity permit the complainant under the state of facts admitted and stated in the said bill, to set up the invalidity of the articles of agreement, even as a matter of defence; and still less would it interfere affirmatively in the manner prayed for in the said bill.</p> <p>Seventhly. That the aforesaid parts of the said bill, and the allegations therein expressed, are wholly immaterial and irrelevant ; and if the said allegations were in all respects well founded, there is no relation between them and the relief prayed for in the said bill, nor does any title in the complainant to such relief or to any equitable relief result therefrom.</p> <p>And for further cause of demurrer to the remaining allegations of the said bill, the defendant shows that they are wholly immaterial and irrelevant, and that no title in the complainant to the equitable relief prayed for, or any equitable relief, results therefrom.</p> <p>And the defendant further shows that the said bill is in many other respects insufficient, irrelevant, and without equity; and is, as between its several parts, multifarious, inconsistent, and irreconcilable.</p> <p>Mallery and Meredith, for the Pennsylvania Coal Company.</p> <p>The plaintiff is a corporation, chartered by the state of New York,' and is proprietor of the Delaware and Hudson Canal, which extends from the Hudson river at Rondout, to and across the Delaware river to Honesdale, Pa., a distance of 108 miles. It also owns a railroad connecting with the canal at Honesdale, and also coal mines, and is engaged in the business of mining coal and transporting it to market by the railroad and canal. The capacity of the canal exceeding that of the railroad, and contemplating a further enlargement of the canal, the company sought to induce another company to construct another railroad connecting with the canal, and to furnish coal for the railroad to transport to the canal.</p> <p>Authorized to impose a toll “ at such rates as the managers shall think proper,” not exceeding eight cents per mile for each ton of coal transported, the board, on 28th April, 1847, in adopting a resolution with the declared object of creating motive and inducement to capitalists to invest their funds in the construction of a railroad, offered “ to the acceptance of any who might avail themselves of the same, a permanent tariff of tolls on all coal entering the said canal by any such railroad.” The Wyoming Coal Association (unincorporated) entered into a written contract with the plaintiffs. By this contract a reduced rate, it was said, of tolls was established, and a mode prescribed by which, from time to time, it was to be ascertained; and it was provided that if, at any time hereafter, the business of the said “ The Wyoming Coal Association” should be vested in, or transferred to, any corporation, the provisions of the contract should be applied in favor of such corporation, and the contract renewed or re-executed to such corporation.</p> <p>On the 30th day of May, 1851, that contract was formally assigned to the defendant by the Wyoming Coal Association. On the 29th day of July, 1851, the plaintiff formally ratified such assignment, and entered into an indenture to and with the defendant, to keep and perform towards the defendant, all the covenants and stipulations of the said contract.</p> <p>That contract established a mode of determining, for each year, the tolls on all coal transported under its provisions and entering the canal by way of defendant’s railroad. It was by applying a simple and fixed formula, therein prescribed, to the average price at which the sales of lump coal of the plaintiff should be made. If not less than one-half of the sales estimated for the year were made before the 1st day of May (which may be assumed to be before the commencement of the deliveries), the calculation was to be on the average price at which the sales so made were contracted. If less than one-half, the calculation was to be “ on the average price at which the whole sales for the year shall be actually made.” The formula was, to deduct -from the average price, when ascertained, two dollars and fifty cents, and take one-half of the remainder as the rate of tolls for the year.</p> <p>On the 3d of May, 1852, the plaintiff notified the defendant, that its total 'sales of lump coal contracted up to May 1st, to arrive by the canal during that year, were sixteen thousand two hundred and fifty tons only; that its expected sales for the year were five hundred and forty thousand tons; and that the sales contracted being less than one-half the sales estimated for the year, the toll during the year was to be calculated on the average price at which the sales for the year should be actually made. The plaintiff therefore proposed to take tolls at the rate of fifty-five cents per ton; but added, “ As, however, the rate of .tolls for the season must depend on the average rate of sales of lump coal for the year by this company, ichich cannot be certainly known until the close, the above proposed rate of toll must necessarily be regarded as a proximate estimate, and payments under it will be received as payments on account.” The plaintiff afterwards proposed to take fifty cents. The defendant expressed its willingness to pay on account at as high a rate as was reasonably certain to be found payable when the true rate could be ascertained; but alleged that the rule proposed for estimating the toll, would generally result in over-payments, and would produce a higher rate than was reasonable; and, therefore, offered to pay at the rate of forty-five cents, subject to variation, as the market might change.</p> <p>While these negotiations existed, the plaintiff attempted summarily to enforce the adoption of its own “ proximate estimate,” as the rule for the “payments on account,” hy stopping the boats of the defendant actually engaged in transporting the coal of the defendant. At this time the plaintiff had in its possession, as agent for the defendant, under another contract, coal belonging to the defendant, valued at not less than fifty thousand dollars, and available assets from sales, estimated at not less than two hundred thousand dollars, both of which were expected to be realized much faster than the current tolls could in any event possibly accrue.</p> <p>In order to prevent the detention of the boats, the defendant, the Penn'sylvania Coal Company, filed a bill in equity against the Delaware and Hudson Canal Company, in the Supreme Court of the state, of New York, praying an injunction restraining the said company during the then current season of canal navigation, from excluding the boats of the defendant from navigating the canal, and also a temporary injunction pending the litigation. The temporary injunction was granted on the 20th of May, 1852. Subsequently the defendant filed a supplemental bill in the same action, praying for damages for the injury sustained by reason of the actual detention of its boats. The temporary injunction was dissolved on or about the 3d day of October, 1852. .</p> <p>The defendant had repeated and continued by its bill, the offer to pay at what it deemed to be a reasonable estimate of the probable rate which would be found payable: and on the 11th of October, 1852, it paid one hundred and sixty thousand dollars on account of tolls on the two hundred and eighty thousand tons transported before the 3d of said October, or fifty-seven and one-seventh cents per ton. And from and after the 3d day of said October, the defendant paid, under protest, “sixty-four cents per ton, on each ton” which it transported.</p> <p>In this state of facts, the plaintiff filed the bill in this case, praying,</p> <p>First. That the defendant be decreed to deliver up the said contract, or articles of agreement, to the plaintiff to be cancelled.</p> <p>Second. That the defendant be restrained by an order and injunction of this court, from commencing and prosecuting any action at law against the plaintiff, touching any of the matters in the bill.</p> <p>Third. That the defendant, its officers, agents, and servants be restrained by injunction from navigating the said canal, without obtaining for the boats used by them the necessary permits and clearances, and without first paying tolls according to law.</p> <p>To the said bill the defendant demurred.</p> <p>In support of the demurrer, it was alleged, that the bill showed no existing injury for which redress was sought. 2. That the complainants had a complete remedy at law.</p> <p>1. If the construction of the contract insisted upon by the complainant be correct, the complainants have the right to collect the toll on each boat load. 2. If the construction contended for by defendants be adopted, the complainants still have a remedy at law for the collection of tolls. That construction is, that in a contingency rarely happening, but which did occur in 1852, the clause of the contract applying on that contingency, would operate as an agreement to postpone the payment of tolls till the close of navigation, and an agreement to pay the tolls when that period elapsed. The construction that this provision operates as an agreement to postpone but not to pay, has not been set up. The defendant admits that there was an agreement to pay. The contract entered into with the Wyoming Coal Association and transferred to and ratified by the respondents, furnishes an action of covenant against either party for a breach of it. The complainants have a right to charge and collect tolls to be ascertained in the mode stated in the contract. That to constitute a covenant the law does not require technical words; wherever the intent of the parties to that effect can be collected from the deed, covenant is maintainable: Platt on Cov. 28, 30, 3 Law Lib.; 2 Rawle 18; 17 E. C. L. 29; 14 Peters 13; 4 Wheaton 228.</p> <p>The managers had authority to make the contract: 12 Sec. of the Act of Incorporation ; also reference to 3 Watts 126; 2 Harris 162; 1 Pick. 304. If the contract, on its face, is void, a court of law can afford sufficient redress; and if the invalidity of it appear on its face, a court of equity will not direct it to be cancelled: 2'Story’s Eq. § 700; 36 Law Lib. 28. A court of equity will not rescind a contract unless 'it can put the parties in statu quo: 1 Smedes f Marshall, 126 ; 3 Bibb 52.</p> <p>In the bill filed in New York, the contracts referred to in the present bill were the subject of inquiry, and their construction can be decided therein: 3 Hare 100. It was competent for the Pennsylvania Coal Company, though chartered in Pennsylvania, to sue or file a bill in New York: 4 John Oh. 374; 13 Peters 588; 1 Parsons 147; Id. 226; 6 Whar. 392; 2 Story 743; 2 W.f Ser. 208; Id. 214; 3 W.f Ser. 399; 2 Id. 133; 3 Hare 100.</p> <p>The object of this bill is not to procure a construction of the contract; but it is asked that the Court take jurisdiction to destroy the contract, and that, too, whilst another proceeding in equity is pending in a court of competent jurisdiction for the purpose of determining its construction and the rights of the parties.</p>

This was a proceeding had upon a bill in equity, filed in the Supreme Court, at the instance of William P. Sharpless, and three others, of the city of Philadelphia (as well for themselves as for such other citizens, residents, and tax-payers, of the said city, who, agreeing to contribute to the expenses of the suit, may become parties thereto), against the Mayor, Aldermen, and Citizens of Philadelphia, and against Charles Gilpin, Mayor of the said city.

<p>This was a bill in equity presented and filed in the Supreme Court at Harrisburg, in June, 1853, at the instance of John F. Moers, Lewis Briner, and others, who were represented to be owners of real and personal estate within the limits of the city of Reading, in the county of Berks, Pennsylvania, and tax-payers and citizens of said city, acting on behalf of themselves, and all other citizens and tax-payers of said city who shall come in and contribute to the expenses of the suit, against the Mayor, Alder-men, and Citizens of Reading; Isaac Eckert and other citizens of Reading; and the Lebanon Valley Railroad Company.</p> <p>Complaint was made against a subscription proposed to be made on the part of the city of Reading to the stock of the Lebanon Valley Railroad Company. The subscription was proposed to be made under the authority of an Act of Assembly of 5th April, 1853, which was a supplement to an Act to incorporate the Lebanon Valley Railroad Company, which was approved on 1st April, 1836.</p> <p>The jfirst section of the Act of 5th April, 1853, provides, “ That the capital stock of the Lebanon Valley Railroad Company be increased to thirty thousand shares of the par value of fifty dollars” —and authorizes the directors to borrow money not exceeding one million of dollars, and to issue bonds therefor, secured by mortgage upon the road.</p> <p>In the second section it was provided, “ That it shall be lawful for the corporate authorities of the city of Reading, the county of Lebanon, and the borough of Lebanon, to subscribe for shares in the capital stock of the Lebanon Valley Railroad Company, not exceeding' six thousand shares for the city of Reading, and four thousand for the county of Lebanon, and two thousand shares for the borough of Lebanon; to borrow money to pay therefor, and to make provision for the payment of the principal and interest of the money so borrowed; the certificates of loan or bonds which may be issued by the said corporation bearing an interest of six per cent, per annum, payable half-yearly, may be received as cash by the said Lebanon Valley Railroad Company in payment of any part or the whole amount of the shares subscribed by the corporation issuing said certificates or bonds.”</p> <p>By the third section of the same Act of Assembly it was further enacted, “ That in case the constituted or corporate authorities of the city of Reading, the county of Lebanon, or the borough of Lebanon, shall propose to subscribe to the capital stock of the Lebanon Valley Railroad Company, as aforesaid, it shall be their duty to fix upon a time for holding the election hereby authorized, giving at least four weeks’ public notice thereof, in two or more newspapers published in the limits of the district in which it is proposed to make such subscription, which notice shall also state the number of shares proposed to be subscribed; and the qualified voters at such election shall vote a written or printed ticket, containing the words, ‘For the subscription,’ or ‘Against the subscription,’ and if upon counting the votes it shall appear that a majority of the votes polled are in favor of the subscription aforesaid, then and in that case the same shall be made, and shall be valid and binding upon the proper district; but if the majority of the votes polled shall be against the subscription, then the same shall not be made.’’’</p> <p>By the ninth and last section it was provided, That it shall be lawful for the said Lebanon Valley Railroad Company to construct and use a branch railroad from the borough of Lebanon to a point at or near Cornwall in the county of Lebanon.</p> <p>In the bill it was, inter alia, represented, That by an Act of Assembly passed the 16th day of March, 1847, entitled “An Act to incorporate the borough of Reading, Berks county, into a city,” it was enacted “That the-inhabitants of the borough of Reading, in the county of Berks, as the same extends and is now incorporated, are hereby constituted a corporation and body politic, by the name and style of ‘ The Mayor, Aldermen, and Citizens of Reading,” &c.</p> <p>By the sixth section of the said Act it was provided, That the freemen of the city of Reading should meet in their several wards and elect by ballot for their several wards so many persons as the said wards severally might be entitled to, to be members of the common council for the said city, and also one person of eaoh ward to be a member of the select council for the said city.</p> <p>And by the tenth section of the same Act it was enacted, That the said select and common councils, in common council assem bled, shall have power to borrow, for the use of the said city, any sum or sums of money which they shall deem necessary, and to issue certificates of loan for the amount so borrowed, to the persons respectively lending the same; and the said certificates, signed by the Mayor of the said city, and attested by the presidents of the select and common councils, shall be binding and obligatory on the said corporation: Provided, That the sums of money so borrowed shall not in the whole, including the sums heretofore borrowed for the use of the borough of Reading, for the re-payment of which the faith of the said borough is now pledged, exceed the sum of seventy thousand dollars; and the said councils, in common council assembled, shall have power to lay and collect taxes within the limits of the said city, for the purpose of carrying into effect the by-laws, rules, and ordinances of the said city, and for the re-payment of all loans with the interest thereon, heretofore made for the use of the borough of Reading, for the re-payment of which the faith of the said borough is now pledged; and for the re-payment of all loans, with the interest thereon, hereafter to be made for the use of the said city, for the re-payment of which the faith of the said city shall hereafter be pledged: Provided, That the assessment of such taxes upon real or personal property, shall be made upon the valuation of property taken for the purposes of county rates and levies: And provided, That the taxes levied any one year shall not exceed one per cent, upon such valuation,” &c.</p> <p>Also, that on the 10th day of May, 1853, the select and common councils of the city of Reading, at a joint session of said councils, passed the following resolution :</p> <p>Resolved, That an election to decide for or against a municipal subscription of two hundred thousand dollars, or four thousand shares, in the stock of the Lebanon Valley Railroad Company, be held in the city of Reading on Wednesday, June 15, 1853, as directed by the Act of Assembly, and that notice of the same be given by the clerk in one English and one German paper, published in the city of Reading on Tuesday next.</p> <p>It further appeared that an election was held on the 15th June, 1853, and resulted in 1658 votes for the subscription, and 682 against it. In the bill the belief was averred that the corporate authorities intended to subscribe for 4000 shares of the said stock, and to borrow money and issue certificates of loan or bonds therefor. It was averred that the Act of April 5,1853, was unconstitutional, inasmuch as it delegates to the people of Reading the power to bind the city for the payment of fifty dollars for each share of stock subscribed not exceeding 6000 shares. It was further represented that the Act of 5th April, 1853, contemplated that the corporate authorities of the city of Reading should assume the responsibility of proposing to subscribe to ■ the stock of the said company; but that they had made no proposition on the subject, though the select and common councils at a joint meeting passed the resolution of the 10th May, cited. It was averred that the select and common councils were not authorized by the Act of incorporation to assemble in jdint meeting for any other purpose than those mentioned in that Act, to wit, for the purpose of organization, on the Eriday next after any election of select and common councilmen, agreeably to the seventh section of the Act of incorporation; and also for electing city officers other than Mayor and City Treasurer, agreeably to the 11th section of the said Act. It was requested that answers be made to interrogatories proposed as to the subjects complained of and matters connected with the complaint. It was alleged that the subscription for 4000 shares of the said stock at $50 per share, amounting to $200,000, would be injurious to the credit of the city, unjust and oppressive to the complainants and others, and be without authority of law.</p> <p>It was asked, that the corporate authorities of the city be enjoined and ordered not to subscribe to the said stock, &o.: and the Lebanon Yalley Railroad Company be enjoined not to receive or dispose of any certificates of loan or bonds that may be issued by the corporate authorities of the city, and to grant¿a writ of subpoena to the parties complained against to appear and answer, &c.</p> <p>The bill was subsequently amended in the following particulars: That by the Act of Assembly of April 5,1853, referred to in said bill, and made part thereof, the capital stock of said Lebanon Yalley Railroad Company is increased from fifteen thousand shares to thirty thousand shares, at the par value of fifty dollars per share: That the said company are, by the same Act, authorized to borrow as much as one million of dollars for the completion and equipment of said road, and to issue therefor the bonds of the said company, secured by mortgage upon the said road:</p> <p>That twenty-three new commissioners are appointed in said act, and that said company are authorized to construct and use a branch railroad from the borough of Lebanon to a point at or near Cornwall in the county of Lebanon :</p> <p>That the same Act of April 5, 1853, extends the charter of the city of Reading by authorizing the corporate authorities thereof, in the event of a majority of votes being polled at an election thereby authorized, in favor of subscription, to subscribe for shares in the capital stock of said railroad company, not exceeding six thousand shares, which at $50 per share amounts to three hundred thousand, dollars ; to borrow money to pay therefor and to issue certificates of loan or bonds therefor, as already mentioned in complainants’ bill: Whereas by the charter of said city of Reading the corporate authorities, to wit, the councils of said city, are authorized to borrow money and issue their certificates therefor, to an amount not exceeding seventy thousand dollars. That by the same Act of April 5, 1853, the said city of Reading, if the corporate authorities thereof should subscribe 4000 shares of stock, would be authorized to elect one director of said company; and any two or more corporations, which should together hold 4000 shares of stock in said company, may unite and elect one director thereof, which director should be in addition to the number authorized by the Act of April 1, 1836, to which said Act of April 5, 1853, is a supplement:</p> <p>That the aforesaid extension by the said Act of April 5, 1853, of the charters’ of the said Lebanon Valley Railroad Company and of the city of Reading hereinbefore mentioned, are in direct violation of the 25th section of article first of the amended constitution of Pennsylvania of 1837-1838, which provides that “No law thereafter enacted shall create, renew, or extend the charter of more than one corporation,” and for these reasons, as well as those already mentioned in complainants’ bill, the said Act of April 5, 1853, is unconstitutional, inoperative, and void; besides, the legislature had no power to create a debt, and to make it a lien on the property of the citizens of Reading, without the consent of all the citizens, nor without such consent could they make the citizens of Reading corporators in a trading company : Especially could they not do so without providing compensation for losses which might be sustained thereby:</p> <p>That the said Lebanon Valley Railroad Company has been incorporated: That the existing debt of the city of Reading is $52,600, and was the same at the time of the filing of the bill aforesaid, to wit, June 16, 1853:</p> <p>That said complainants are all citizens and tax-payers of the city of Reading, and all, or nearly all of them, owners of real or personal estate in said city; and the taxable inhabitants of said city, June 16, 1853, were 3699, or thereabouts.</p> <p>Interrogatories were submitted: the 11th was as to the terms of the Act of 1853, as stated; 12th, whether the Lebanon Valley Railroad was incorporated; and 13th, as to the amount of the debt of the city of Reading on 16th June, 1853, and the number of taxables of the city at that time.</p> <p>In the answer of the respondents it was averred that by the 9th section of the Act of 16th March, 1847, to incorporate the city of Reading, it was enacted “ That the power of the said corporation of the said city shall be vested in the said select and common councils, who shall, in common councils assembled, have full power and authority to make, ordain, constitute, and establish such and so many laws, ordinances, regulations, and constitutions (provided the same shall not be repugnant to the laws and constitution of the United States, or of this Commonwealth) as shall be necessary or convenient for the government and welfare of the said city, and the same to enforce, put in use and execution by constables, watchmen, and other proper officers (whom they shall have power to appoint and remove at pleasure), and at their pleasure to revoke, alter, and make anew, as occasion may require, and shall have, hold, and enjoy, all the powers now vested in the borough of Reading, which are hereby transferred to, and vested in, the said councils.”</p> <p>And it was further averred that the powers there vested in the borough of Reading, were defined in part by the 6th section of the Act of Assembly of March 29, 1813, to which Act reference is craved as though set forth, which section is in these words: “ And be it further enacted by the authority aforesaid, That it shall be the duty of the said town council, (five of whom shall be a quorum), to hold quarterly meetings on the last Saturdays of April, July, October, and January, in each year, and oftener if necessary, at which meetings they shall revise, repeal, or amend, all such by-laws and ordinances as have heretofore been made in said borough, and enact such other by-laws, and make such rules, regulations, and ordinances, as shall be deemed by a majority of said council necessary to promote the peace, good order, benefit, and advantage of said borough,” particularly providing for the regulation of the markets, improving, repairing, cleansing, and keeping in order the streets, lanes, alleys, and highways, ascertaining the depth of vaults, &e., as in and by said Act will fully appear.</p> <p>By the 13th section it is provided, That the select and common council shall assemble in. common councils for the transaction of business, on the last Saturday of every month in the year, and oftener if occasion shall require.</p> <p>It was farther averred that the president and directors of the Lebanon Valley Railroad Company had agreed to pay six per cent, on municipal subscriptions, from the time of payment till the completion of the road. That a written application for a subscription was made to the corporate authorities of the city; and it was averred that on the 10th May, 1853, the select and common councils of the city proposed to make the subscription, and in joint session, by a vote of eleven in the affirmative, and three in the negative, passed the resolution relative to the holding an election for or against the subscription for 4000 shares of the stock of the railroad company.</p> <p>Also that the majority of 972 voters in favor of the subscription, was a majority of all the qualified voters of the city, both of those who voted and of those who did not vote; and that the complainants submitted to the holding of the election, and voted thereat.</p> <p>It was also averred that the terminus of the railroad was in the city, and that the road was designed to increase its business, and render access by the city easy to the country lying west of it.</p>

<p>This case came up from the Nisi Prius.</p> <p>It was an action on the case hy Manning Kennard v. The New Jersey Railroad and Transportation Company, to recover damages for personal injuries to the plaintiff, by the breaking of his arm. The plaintiff was a passenger in the defendant’s cars, on a journey from New York to Philadelphia, on the 27th day of August, 1849. In the course of the journey the cars pass over the Delaware and Raritan Canal, at Trenton. The cars pass the canal by a bridge, the side of which, opposite the window, where the plaintiff was sitting, is lined or sheathed with weather-boarding, so as to present a smooth, plain, unbroken surface, from each end of the bridge to the king post (or post in the centre of the bridge), with which it is in line, the king post forming a part of the sheathing; so that any projection from the window, would impinge against the face of the post opposite the window. At this post it was alleged that the plaintiff’s arm was broken. A curve existed on the bridge.</p> <p>The bridge did not belong to the defendants; was not built by them; and was not on their railroad. It was built in 1844.</p> <p>There was a contusion on the plaintiff’s arm, about two and a half inches above the elbow, and the fracture was a little above the contusion. There was also another contusion about as far below the elbow as the fracture was above it; there was no contusion or abrasion of the elbow itself.</p> <p>The witnesses testified that there was no danger of such an accident to a passenger keeping his arms inside the car. No injury' to a passenger had before occurred there, but the cars had struck against the king-post before.</p> <p>The material question upon the whole case was, Whether the defendants were obliged so to construct their cars with slats, bars, wire gauze, or other barricades, at the windows, so that a passenger could not put his arms out at the windows; and, if defendants did not do so, whether they are liable ?</p> <p>Charge of Gibson, J. — “A carrier of either goods or passengers, is bound to provide a carriage or vehicle, perfect in all its parts; in default of which he becomes responsible for any loss or injury that may be suffered, provided it happen without negligence or misconduct on the part of the party injured. A carrier of passengers is bound to omit no precaution that may conduce to their safety. He is bound to guard before hand against every apparent danger that may beset them. The dangers incident to travelling in railway cars, are few in comparison with those incident to other modes of travel; but among the most prominent of them, is risk of injury to limbs stuck out of. the windows, where the cars are not so constructed as to prevent it. Any one who has travelled by railway, must have observed that even the most careful passengers forget the risk, and unconsciously suffer their elbows to slip out beyond the window sill. What can the carrier do to prevent it ? * * * No more is required than a few metallic rods set in the</p> <p>windows perpendicularly or horizontally, or a netting of wire work, or even wooden slats. None of these would materially impede the circulation of the air, or abridge the comfort of the passengers, while it would make their 'safety sure. (A car without any of these appliances, is, to coin a phrase, not road-worthy, and a carrier is responsible for any loss that may happen from that cause alone.) Risking his passengers in an unsafe car, it behoves him to use every means in his power to guard against danger from it at dangerous places, by audibly proclaiming in the car the necessity of keeping arms and heads inside. If any one should disregard such warning, he would incur the charge of wilful neglect of his own safety; and when there is negligence on both sides, neither party is answerable for any injury from it. It is not pretended that the passengers were warned not to put out their arms in passing this bridge, and so far the case is against the defendant.</p> <p>“Rut even verbal warning might not protect the carrier in every case. It would be of no service to a foreigner ignorant of the language, or to a sleeping passenger, or to a child incapable of reason. The utmost care of a parent or nurse, is insufficient to restrain a child’s curiosity to look at things ‘ outside. Should either of these be injured by want of a proper construction of the car, an action would lie for it. Nor would written notice stuck up be any better. There may be passengers who can’t read, and they would, of course, not be affected by it. Others may get into the ear at night, and some might not observe it even in day time, and neither of these would be chargeable with negligence. At best, however, such notice is too general to be of service. It gives no more than general information, known to everybody without it, that injury may result from putting heads or limbs through the windows. .It would seldom be recollected at the critical moment; but it would be otherwise in regard to particular information at a particular time of a particular danger at a particular place. Surely a written notice is not an equivalent for a properly constructed car. But there was not even that.</p> <p>“ I will not say that there might not be cases of injury to a passenger from his own negligence, in the absence of all the precautions I have mentioned. A man who would choose to loll on the window sill with his head, arms, and a part of his body hanging outside of it, would not ride like a prudent man or a gentleman, and he would have to bear the consequences of his foolhardiness. But if he were sitting at the time as passengers usually sit, the case would be different entirely.</p> <p>“ Now it is a notorious custom in railway cars, and it is proved to be so by the evidence in the cause, for passengers next to the windows, to rest their elbows on the sills of them; and (carriers are bound to take notice of the customs and habitudes of railway passengers, and to provide for them. If a passenger, therefore, sits and rides in a car as others generally do, and receives injury from an imperfect construction of it, the carrier is liable for it.)</p> <p>“ It is urged that his contract is to carry the passengers inside of the car, and that he has nothing to do with anything which happens outside of it. (That would be true in regard to a passenger who was standing on one of the platforms to enjoy his cigar, the air, or the prospect; the risk of danger from his position would be extraordinary, and exposure to it would be rash as well as wilful; but in regard to leaning on the window sills the case would be different. A passenger is not entered as a bale of goods, nor is he bound to behave like one. He is entitled to all the comforts which change of position and change of place may afford. He may have his elbows on the window sills, ride back foremost or face foremost, and the occupants of adjoining benches may reverse one of them for purposes of conversation, as was done in this case, without incurring the charge of remissness in not keeping a sharp lookout. A person who dare not put his nose out of the car, could not discover that a post was coming. Nor are all the duties of the carrier to his passengers performed, when the conductor puts him into the car and leaves him to shift for himself. He is bound to guard him from every danger which extreme vigilance can prevent. The passenger has put his life into his hands, and the carrier is bound to defend it as his own. In the present case, it would seem that every precaution was neglected, inasmuch as there was neither a properly constructed car, nor a verbal warning of danger, nor even the miserable and insufficient substitute, a written caution.)</p> <p>“ (If, then, the plaintiff’s arm was broken by an upright post, in the bridge, the plaintiff is entitled to recover.)</p> <p>“ The counsel for the defendant require me to instruct you on points of law which would arise out of a particular state of the facts, leaving you to say whether such facts are sustained by the evidence.</p> <p>“ 1. I am asked to instruct you, That if you believe that the injury was caused in any degree by any carelessness or negligence of the plaintiff himself, or that his acts contributed to it, he cannot recover.</p> <p>“ (I have already told you, that if there was negligence on both sides, neither is responsible to the other ; but I cannot direct you without .qualification, that if the mere act of the plaintiff contributed to the injury, he may not recover. To have that effect, it must have been an act of carelessness or negligence, and it will be for you to say whether the resting of his arm on the window sill, with the elbow outside of it, was such. If the law were as the defendant requires me to lay it down, there never could be a recovery in any case like the present. It is for you to say whether such resting of the arm is proof of negligence.)</p> <p>“ 4. That if you believe the car was staunch and good, that the railway was in good travelling order, and that-the bridge was sufficiently wide for the car to pass, especially if cars had done so for five years without accident, the burden of proof is on the plaintiff to show negligence on the part of the company.</p> <p>“ (No car is good if the windows are not so constructed as to prevent the passengers from putting their limbs through them. It may be staunch, but without the appliances I have mentioned, it cannot be perfect.) The length of time that elapsed without accident is immaterial except as to damages; and without blame on the part of the passenger, every injury to him without fault on his part, must be compensated. If the car was deficient and consequently not good, the burden of proof is on the carrier.</p> <p>“ 5. That the contract was to carry inside the car; and that if the passenger would have been carried safely keeping his limbs inside the car, he cannot recover.</p> <p>“ (I have already said that such is not the law.)</p> <p>“ 6. That the burden of proof is on the plaintiff to show affirmatively that his arm was inside the car.</p> <p>“ (I cannot so instruct you. He may recover though it were outside, provided he was reasonably attentive to the safety of it.)</p> <p>“7. That the plaintiff is only entitled to compensatory damages.</p> <p>“ That is a matter exclusively for you, and not for legal direction. In an aggravated case of personal injury a jury may go beyond mere compensation. But this does not seem to be such a case. No special blame can be imputed to the company. They constructed the cars as others had done. The road was not theirs, and they had no power to alter the bridge. Their cars had passed over it during five years without accident; and this greatly tended to diminish their fear of accidents in time to come. But the question of compensation is not exactly a question of dollars and cents. There is no measure or standard of damages for a broken limb; and you ought therefore to be liberal against the author of it. You ought certainly to give enough; for it is safer to err, if at all, against the party who was the cause of the injury, than against an innocent man who suffered it. You are, however, the exclusive judges of the amount.</p> <p>“ 8. That the company is responsible only for defects discoverable by a careful man .after a careful examination and exercise of a sound judgment.</p> <p>“ (This is true, but were there such an examination and exercise of judgment? The defective construction of the car must have been obvious to the dullest perception; and the company having the lives and limbs of the travelling public in charge, were bound to see it. They would not see it; and unless you shall find that the plaintiff has been negligent, or that the accident did not happen as it is stated in the declaration, it will be your duty to make them pay for it.)”</p> <p>Eebruary 4, 1852, verdict for plaintiff for $2500.</p> <p>Error was assigned to the parts of the charge in parentheses.</p>

<p>.1. Where a debtor desires to avail himself of the provisions of the Act of 9th April 1849 and retain $300 worth of his real estate, he must elect to do so and request an appraisement before inquisition. But in cases where no inquisition is required by law, as in proceedings under the Mechanics' Lien Acts, the request for an appraisement should be made before advertisement of the sale.</p> <p>2. The claim is not allowable if the necessary consequence will be to postpone the sale.</p> <p>3. A term must necessarily intervene between the appraisement under the Act and the sale.</p> <p>4. The debtor's claim is too late after waiver of inquisition.</p> <p>5. He cannot waive his right to the $300 in favor of a junior lien creditor, nor assign it to a third person.</p> <p>6. Whatever he does not regularly claim for himself remains in the fund, to be distributed according to law.</p>

This was an action of debt in the name of the Commonwealth, for the use of Sarah J. Wright, v. J. S. Downing and J. Russell, on the official bond of Downing, as constable. Plea, covenants performed with leave, &c. Sarah J. Wright had made complaint against Rockey, for fornication and bastardy. The warrant was delivered to Downing for execution; he arrested Rockey, but he was permitted to escape, and this action was brought to recover damages for permitting the escape.

<p>Certiorari to the Quarter Sessions of Lancaster county.</p> <p>In August 1852, a petition was presented to the Quarter Sessions for the appointment of viewers to vacate fart of a public road in Leacock township, Lancaster county, laid out in 1796, leading from Christian Hess’s mill, on Pequea creek, to Shirley’s mill, and which part was described as beginning at a stone, a corner of lands of Esther Miller and David Graff, in said public road, to a stone, a corner of Henry Krider, and late Levi Bushong’s lands, also in said public road; and to lay out another in lieu thereof, from a stone, a corner of lands of Esther Miller and David Graff, the beginning of the old road above mentioned, to a stone, a corner of lands of Jacob Reno and Esther Miller, in a wew-laid-out road, leading from the old Philadelphia road, &c., to a stone, a corner of Henry Krider, and late Levi Bushong’s iands, the termination of the old road above mentioned, confirmed at the April sessions of 1851.</p> <p>Viewers were appointed, who, on 15th November, 1852, reported in favor of vacating the road as prayed for, and in favor of another road, which was described in part as, Beginning at the commencement of the aforesaid old road vacated as aforesaid, at a stone, a corner of lands of Esther Miller and David Graff, Esq., the middle of said old road, thence from said place of beginning north, &c., to a post on land of the said Esther Miller, fourteen feet, northerly, from the line dividing lands of said Esther Miller and David Graff, Esq.: thence through improved lands of the said Esther Miller, &c., parallel with the said, division line of said Esther Miller and David Graff forty perches, to a post on lands of said Esther Miller fourteen feet, northerly, from said division line: thence, &c., to a stone a corner of lands of Jacob Reno, ascertained to be in a line of lands of said Esther Miller, in a new-laid-out public road, leading from the old Philadelphia road at a corner of Catharine Yates’s land to a stone, a corner of lands of Henry Krider and late Levi Bushong’s, the termination of the old road vacated as aforesaid, confirmed at the April Sessions of 1851. •</p> <p>All which said courses and distances of said road we return as and for the middle thereof, and being all in Leacock township, said county.</p> <p>It was recommended to the Court to direct the road laid out to be opened of the breadth of 28 feet. A draft of the road was annexed.</p> <p>The report was confirmed nisi, the road to be of the breadth of 28 feet.</p> <p>Exceptions were filed in December, 1852: 1. The order calls for the laying out of a new road ending at a corner of lands of Jacob Reno and Esther Miller: the report lays out a road with no such termination; and, in fact, there was no corner of lands of Jacob Reno and Esther Miller, and the viewers have endeavored to correct the point of ending of a road laid out different from both petition and order. 2. The order directs the viewers to vacate a road, and lay out another in lieu thereof between different points, and in an entirely different direction; thus giving to one set of viewers the powers that can only be exercised by two juries. 3. A straight road is vacated — part of old Newport road laid out sixty years ago; and a change in. the same will be productive of great inconvenience to the public.</p> <p>An additional exception was afterwards filed, to the effect, that the road reported was recommended to be opened of the width of 28 feet; whereas the old Newport road, part of which was vacated, was 33 feet wide.</p> <p>In March, 1853, the report was set aside* because the portion of the road laid out did not end where the portion of the old road ashed to be vacated ends.</p> <p>It was assigned for error, That the Court erred in setting aside the report on the second exception; and that they should have confirmed the report.</p>

. This was a bill in equity on the part of the railroad company, filed with the view of enforcing the specific performance of an agreement, which was as follo.ws: “ We, the undersigned, agree to take the number of shares of the capital stock of the Strasburg Railroad Company, set opposite to our respective names, the price per share to be $ 100, provided there can be a charter obtained at the next ensuing session of the legislature of Pennsylvania, granting said company to…

This was an action on the case by S, S. Moderwell, a minor, by his next friend John Moderwell, v. Henry Kauffelt, for service rendered as a clerk in a transportation house, in which A. P. Moderwell and Kauffelt, the defendant, were at the time partners. In the articles of partnership Kauffelt engaged to furnish at his expense, the services of a competent cleric as assistant.

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an action of trespass vi et armis guare clausum fregit, to January T., 1852, by A. N. Breneman v. John E. Shroder. The plea was, Not guilty.</p> <p>John E. Shroder purchased a house and lot on the east side of North Queen street near Centre square, in the city of Lancaster, from George B. Withers, executor of George Withers, deceased, containing thirty feet in front, sixty feet deep. Deed dated 1st day of April, 1851. On the east side of said lot, John Metzgar owned a .lot with a brick warehouse thereon, fourteen feet and three inches adjoining Shroder’s lot on the north-east, and fifteen feet and three inches along an alley, which said Metzgar conveyed to said Shroder by deed, dated 15th day of March, 1852. The lower part of the eastern side of the first above-mentioned lot of Shroder is bounded by an alley, which turns to the east between the property purchased from Metzgar and A. N. Breneman. Shroder tore down or converted said warehouse into a kitchen, &c., on the first above-mentioned lot. Breneman alleged that in doing so he encroached on said alley by erecting a small balcony, and therefore he brought this action of trespass.</p> <p>Long, J., charged, inter alia, as follows: “ If the plaintiff is possessed of the freehold or soil, a mere right of way in other persons over that soil would not take away this right of action for any obstruction which may be erected upon it. Here the alleged injury is the erection‘of a balcony projecting over the ground which the plaintiff avers he is owner of, and attached to a building belonging to the defendant; it is elevated to a considerable height from the ground. This, however, would be a trespass if the plaintiff be the owner of the soil below, for a title to land gives to the owner all that is upon or above it. Neither would a mere non-user of the premises, by the plaintiff or those under whom he claims, destroy his right or title to the freehold, unless the premises, or that part upon which the alleged trespass is committed, was given up by the plaintiff, or those under whom he claims, for twenty-one years or more, and adverse possession for that period taken by some one else, who held the same in opposition to the owner. Such adverse possession may be shown by any one occupying the same, using or putting a building upon it, or doing some such act as would go to show that he claimed it as his own; and when adverse possession is thus held for twenty-one years, the owner is divested of all right to the soil, and it would require the same length of time of adverse possession on his 'part to regain the ownership.</p> <p>*“ As regards the adverse possession spoken of in this case, I am of opinion the defendant has failed in showing such adverse possession as the law recognises. It is true that one of the witnesses testifies that he knew the premises in dispute forty-five years ago; that in 1807 there was a privy upon it; that it was an old building at that time, and Judge Schaeffer testifies that he knew it for many years, and that it was removed in 1824; that afterwards it was used for a dung heap by Dr. Kerfoot, who rented a stable or building to which the privy was attached; and other witnesses prove that it was used as a place for the deposit of filth until about six or seven years ago, when Howett’s warehouse was built. According to the testimony it appears the privy stood for about seventeen years ; and afterwards it was used as a dung heap and deposit for filth. It is true Dr. Kerfoot made use of it as a dung heap, and that he was the tenant of the stable to which the privy was attached while it existed; but he was also, at the same time, the tenant of the premises now owned by the plaintiff, and I cannot discover that his using the dung heap was inconsistent with the right of the plaintiff.*</p> <p>“ If you should determine that the plaintiff has made out his title, the least encroachment upon his freehold or soil by the erection of the balcony would entitle him to a verdict.”</p> <p>On the part of the defendant points had been submitted, the third of which was: It having been shown that forty-five years ago an outbuilding, then an old one, and considered to belong to Miller, under whom defendant claims, stood in the corner where the balcony complained of now is, and that from 1824 until about six years since, the pit of such outbuilding was occupied by neighbors, as a place of deposit for filth of various kinds, the possession of the ground in dispute is proven out of the plaintiff, and therefore, before he can obtain a verdict, he is bound to prove that he had twenty-one years’ adverse and uninterrupted possession of said premises, previous to the commencement of this suit.</p> <p>The answer was as follows: There being no evidence given to show that the possession of the premises in dispute was out of the plaintiff twenty-one years, this point therefore is answered in the negative.</p> <p>August 27, 1852, verdict for the plaintiff.</p> <p>Error was assigned, inter alia, to the negative answer to the third point submitted on part of defendants, and to the part of the charge which is between asterisks.</p>

<p>1. He is guilty of a fraud, who secretly changes a state of affairs, and then, without revealing this fact, procures another to do an act into which the true state of affairs enters as a mptive.</p> <p>2. If a creditor, knowing that his debtor is in failing circumstances, gets from him, for part of his claim, a mortgage substantially covering all his property, and gets'the debtor to obtain'the 'endorsement of another-person for another part, without revealing the fact of the-mortgage, this is a fraud upon the endorser and discharges him from liability.</p> <p>3. Where persons, assuming to act for another in Securing a claim, are guilty of fraud in the transaction, the creditor-must go back to his old position if he would repudiate the fraud of the new arrangement.</p> <p>4. A general prayer for a charge that there is no evidence of a particular fact is not good practice. A better way is to call on the opposite counsel to indicate in writing the evidence relied on, and the Court may, in a proper case, enforce the demand; and then the question will be orie of-shape and body-upon which a well-defined instruction can be-given.</p>

This was an ejectment by Arthur McKissick v. Leonard Pickle, for a lot No. 81, in Georgetown, Lancaster county. The title to this lot, on 25th Oct. 1819, was in Samuel Eerguson.

' This was an action of debt by-William Muirhead v. William Kirkpatrick, on a promissory note, dated 11th March, 1842, for $186.22, payable sixty days after date, by the defendant to the plaintiff. The same case was up several times previous, and reports of it will be found in 5 W. & Ser. 506; 2 Barr 425; and 4 Harris 117, &c. The pleas on this trial were payment and payment with leave.

Appeal by Mary Neff, widow of Henry Neff, deceased, from the decree of the Orphans’ Court of York county, decreeing distribution of the proceeds of sale of the real estate of the said deceased, which had been sold under an order of the Orphans’ Court for the payment of debts. The time of the death of Neff was not stated on the paper-books; it was stated that he died after 26th April, 1850, insolvent, leaving a widow and children residing with him at his death.

<p>Though a husband cannot give away his wife’s dioses in action, nor pledge them as collateral security, so as to bar her right of survivorship, yet in Pennsylvania he may sell and assign them for a valuable consideration; and this is applicable to dioses presently reducible into possession, reversionary interests or possibilities.</p>

<p>1. Interrogatories, though not indispensable to a bill in equity, become a part of it when founded on a matter contained in the charging part of the bill; and the defendant is compellable to answer the allegations or interrogatories.</p> <p>2. When an answer contains facts not responsive to any interrogatory in the bill it is not an answer for the defendant; but the facts, if material, must be established by independent proof.</p> <p>3. It is otherwise when the answer is responsive to the bill; in such case it is evidence for the defendant, and the plaintiff must overcome it by counter evidence by two witnesses, or of one witness and strong circumstances in corroboration ; otherwise it will prevail.</p> <p>'4. The answer will have the same operation although the equity of the plaintiff's bill be grounded on an allegation of fraud.</p>

This was an action of assumpsit by A. P. Moderwell v. Reuben Mullison to recover above $40 which had been paid by him under the pressure of a levy under a landlord’s warrant issued by Mullison against Moderwell, under which a levy had been made on certain personal property of Moderwell. On 10th March, 1849, a written lease was made to Moderwell of a coalyard in Columbia, for one year from 15th March, 1849, at a rent of $175, payable in half-yearly payments.

Emaon to the Court of Common Pleas of Lancaster county. This was an amicable action in which Anna Stehman was plaintiff, and Jacob Huber was defendant, entered into to try the right of the plaintiff to certain personal property, levied by the sheriff, at the suit of Stehman’s heirs v. Tobias B. Stehman; and also to settle the right of the defendant, as sheriff, to levy on said property, for the use of the bail of said Stehman ; the form of action not to be questioned, but…

<p>Error, to the Common Pleas of Lancaster county.</p> <p>An action of ejectment was brought by Geo. A. J. Mayfield v. Samuel S. Porter, to recover a tract of about 119 acres of land in Lancaster county, and at the trial both parties claimed under Col. James Porter, deceased.</p> <p>Col. Porter died in 1817, leaving a will, by which he directed the land in question to be sold, and bequeathed the proceeds thereof, with his residuary estate, to his three nephews, Dr. John, James, and Samuel S. Porter (the defendant below); and in the year 1821, James and Samuel S., and their wives, conveyed all their interests in the estate of their deceased uncle to their brother Dr. John Porter, by deeds absolute upon their face.</p> <p>Dr. John Porter having since died in the city of Philadelphia, proceedings in partition upon this tract were instituted in the Orphans’ Court of Lancaster county, which resulted in an appraisement and refusal by his heirs, and a sale and conveyance by a trustee appointed for the purpose, to Dr. George A. J. Mayfield, (the plaintiff below), for the price of $8 per acre, he having notice of the defendant’s claim.</p> <p>The plaintiff below also read in evidence an agreement between Dr. John Porter and Samuel S. Porter, dated May 31, 1825, by which the former employed the latter to occupy, farm, and manage the tract in question, for the annual salary of $100, to continue until the revocation of the agreement. The plaintiff claimed a verdict as owner of the property, and landlord of the defendant below.</p> <p>The defendant below did not dispute the execution of the conveyances to Dr. John Porter, or of the agreement between him and Samuel S. Porter, the defendant, but contended that they were made without pecuniary consideration, and in pursuance of a parol arrangement among the brothers to provide a home for the latter and secure it from the effects of his apprehended mismanagement and intemperance; and that with this understanding, the farm was used and treated by Samuel S. Porter as his own, with the knowledge and consent of Dr. John Porter, to wdiom no return or acknowledgment was ever actually made. Evidence of these facts was given, which was not referred to the jury, the Court having instructed the jury that the defendant could not dispute his landlord’s title, unless by showing that he had disclaimed it and held adversely to it for over twenty-one years. This was the principal matter complained of in this Court.</p>

This was an action of debt by Laird v. Hulings, brought to April T., 1851. The summons was returned, “ defendant not found in my bailiwick.” An alias summons was issued to August Term, 1851, and it was served on Williams, trustee of Hulings, without specifying how he had become trustee. On the 7th August, 1851, judgment was entered under a rule of Court for want of an appearance. To such judgment error was assigned.

<p>1. A lease of real and personal estate was dated on 27th June, 1848, whereby the lessor leased to the lessee the property “ for the terra of five years from the 1st day of April, 1848, continuing until the 1st day of April, 1853.” The lessee agreed to pay an annual rent of $2500 for the real estate, the said annual rent to be paid half-yearly in advance during the first five years aforesaid. It was Held, that under the terms of the lease itself the rent began to accrue from the 27th June, 1848, when the lease was made, and not from the 1st April, 1848.</p> <p>2. But where the personal property leased was levied upon on the 14th June, 1849, under an execution against the tenant, and was sold by the sheriff; It was Held that it was competent for the sheriff in a suit against him by the first execution-creditor, to show by parol testimony that the tenant had taken possession of the premises on the 1st day of April, 1848, and that rent was payable from that day, and. that the receipt on the lease was for the first half-year’s rent commencing on 1st April, 1848.</p> <p>3. In such a suit, the lessor having received out of the proceeds of sale all the rent he claimed, and not having indemnified the sheriff and not being interested in the event of the suit, was a competent witness on the part of the sheriff and his sureties to prove the time when the lease actually began, that the rent was to commence from the 1st of April, 1848, and that such was the intention of the parties when the lease was written.</p> <p>4. The execution-creditor, in a suit against the sheriff, is not concluded by the price at which the personal property levied on was actually sold; nor can he claim the amount at which he would have been willing to take it. What the property would have brought at a fair sale conducted under the direction of the plaintiff in the execution, without puffing, at bond fide bids, would be the extent of his claim.</p> <p>5. An action by the execution-creditor on the recognisance of the sheriff, can be sustained only when the plaintiff has been actually aggrieved. He is not otherwise entitled to a verdict for nominal damages.</p> <p>6. In such a suit whatever amount the landlord could have legally claimed out of the proceeds of sale, if the sale had been under the plaintiff’s execution, the latter cannot recover; and if the sheriff, out of the proceeds of sale under another writ, has paid to the landlord one whole year's rent, the first half-yearly payment being paid in advance according to the proof as to the terms of the leas , the said second half-year's payment is not to be disallowed to the sheriff, because after the landlord had received the rent from the sheriff he took possession of the demised premises. The sheriff is bound to observe only such relations as existed at the time of his payment.</p> <p>7. An erroneous decision of the right to a conclusion to the jury is not a cause of reversal.</p>

This was an ejectment to April Term, 1844, by Peter Wertz v. Daniel May, for about 124 acres of land. Plea, not guilty. April 27, 1846, verdict for defendant. May 2, 1846, judgment on the verdict. Writ of error to May Term, 1853. On the trial, the plaintiff gave in evidence an application by him, dated 13th September, 1833, for 200 acres. Then a warrant to said Wertz for 200 acres, dated 17th September, 1833, and survey thereon for 198 acres, dated 1st October, 1833.

<p>An executor cannot, on objection being made by a legatee, retain for a debt due to himself -which was barred by the statute in the lifetime of the testator.</p>

This was an appeal by Ezra High, administrator of tbe estate of William Higb, deceased, from tbe decree of the Orphans’ Court of Berks county, upon his administration account. William High died intestate in the spring of 1851, leaving a widow and three sons, and one daughter living, and the children of one deceased son, and also the children of two deceased daughters. The intestate left a large real and personal estate.

<p>1. One who builds a dam under the Act of 23d March 1803 in a navigable river, or in a stream declared by law a public highway, is entitled to the same protection against an inferior proprietor who would back the water upon his wheel, as the law would give him if his dam was on a stream not navigable.</p> <p>2. The statute gives the authority to erect dams to “ the owners of adjoining landsbut it is not necessary in an action for an injury to such a dam, or the mill connected with it, that the plaintiff should prove his title to the land.</p> <p>3. Possession is sufficient against a mere wrongdoer.</p> <p>4. One who is in possession is the owner to all intents and purposes except as against one who comes with a better title.</p> <p>5. In an action for backing the water, to the injury of the .plaintiff’s mill, the declaration and the proof are the same whether the plaintiff’s right to build the dam be founded on his riparian ownership or on the statute.</p>

<p>Error to the Common Pleas of York county.</p> <p>This was an action of debt brought on 18th October, 1850, in the name of the Commonwealth for the use of the York Bank v. Jacob Hantz, on his official recognisance as sheriff; wherein the York Bank claimed for money collected by him on an execution, with interest. There was a case stated between the parties in the nature of a special verdict.</p> <p>Hantz was elected sheriff in October, 1842. On the 24th August, 1843, the sheriff had in his hands several executions against H. Y. Slaymaker, in favor of different creditors, on which he had sold the lands of said Slaymaker. On that day the sheriff was ruled to pay the money into Court, by September 19, 1858, for distribution. The sheriff was notified of the rule.</p> <p>The oi’der not having been complied with, the Court, on December 5, 1843, made an order on the sheriff to deposit in the York Bank “ to the credit of the Court of Common Pleas, agreeably to the rules of Court on that subject, all money received by him from purchasers; and to deposit all moneys received by him in future from purchasers as fast as received in like manner; in the mean time the money to be considered in Court for the purposes of distribution.” Of this order the sheriff had knowledge. On the same day a commissioner was appointed to make distribution.</p> <p>On January 8, 1844, the report of the commissioner was submitted. By this report above $28,000 was awarded to the York Bank.</p> <p>On 1st April, 1844, the Court directed a mechanics’ lien claim to be paid, and confirmed the report as thus modified.</p> <p>In September, 1845, issues were directed to try the validity of some of the judgments confessed in the name of the York Bank.</p> <p>November, 1845, the sheriff paid to the bank above $18,000 on being indemnified. On November 10, 1845, the first of the issues was tried, and resulted in favor of the bank,’ A writ of error was taken, and on June 6, 1846, the judgment was affirmed. In May, 1846, the order as to the other issues was rescinded. No further order of distribution was made. The record of the issue taken up was not directed to be remitted, but it was found in the prothonotary’s office in May, 1851, since the bringing of this suit.</p> <p>It was further stated in the case stated that the sheriff made no deposit to the credit of the Court of Common Pleas, nor was Tie formally notified to do it. He received all the purchase-money of said sales at or before the 8th November, 1845.</p> <p>Also; there is no rule of the said Court of Common Pleas providing that money paid into Court shall be paid to the credit of the Court of Common Pleas, nor has it ever been done. The only rule on the subject of paying money into Court is as follows, viz.—</p> <p>To settle in future all disputes respecting the bringing of money into Court, in causes depending in the Court of Common Pleas, it is ruled, That the same practice shall prevail in all such cases, as the statutes 4 & 5 Ann. cap. 16 prescribes, according to the usage, practice, and construction under it, in the Court of King’s Bench at Westminster, at the time of the late revolution.” It has been a common practice of this Court to treat money raised by a sheriff’s sale as in Court, by agreement for the purposes of distribution, after a rule has been taken and served on the sheriff to pay it into Court; in which case the money has remained in the sheriff’s hands, awaiting the order of the Court. The Court has never rer fused to make such orders regarding any particular fund, as all the parties interested in that fund desired.</p> <p>. The York Bank having received all the money to which it was entitled except above $7415.40, demanded the amount from the sheriff shortly before the institution of this suit. The sheriff refused to pay interest — what disposition he had made of the money in the interval did not appear.</p> <p>May 5,1853. — Opinion of Eisher, J. — “It is contended in this case that the plaintiff cannot recover because there was no final decree. Although the Court believe that the proceedings would have been much more regular, had there been a decree of Court settling the costs and ordering the payment of the money after the decision of the issue No. 141 Aug. T., 1845, by the Supreme Court; and the withdrawal of the issues Nos. 142 and 143 in the Court below; and whilst admitting that no other decree of distribution was made than that confirming the auditor’s report nisi on the 8th of January, 1844, we have come to the conclusion (not without hesitation) to consider the confirmation nisi on that day as a decree of distribution, rather than at this late period turn the parties round to a new action. As- regards the question of interest, the Court are of opinion that the neglect of the defendant to deposit the money ‘ in bank as fast as received’ is conclusive evidence that he had used it himself, and is therefore liable to pay interest from the 8th of November, 1845, when the case stated finds that he had collected the whole amount of proceeds of sale. The Court therefore render judgment on the case stated for the plaintiff for $7415.46, debt with interest from November 8, 1845, to this day, amounting in the whole to $10,748.66.”</p> <p>Error was assigned to such judgment.</p>

<p>1. Though a legatee may release or renounce a legacy, and thus become a competent witness to prove a will, yet he cannot make himself competent by assigning his interest to another. Search’s Appeal, 1 Sams 108, overruled.</p> <p>2. The presence of two disinterested persons as witnesses, at the making of a nuncupative will, is necessary to its validity.</p> <p>3. It is necessary to the validity of a nuncupative will that each requisite be very clearly proved by two witnesses, to wit, its substance, the intent to will, the rogatio testium, and the necessity that prevents its being reduced to writing.</p> <p>4. The general rule requiring all wills to be in writing is intended to be as nearly universal as possible, and the exception in favor of nuncupative wills must be very strictly administered, and confined to cases of necessity.</p> <p>5. Ignorance of the general rule, or carelessness about attending to it when the testator is conscious that his sickness is unto death, or mere aversion to be troubled about it, does not constitute such necessity.</p> <p>6. On an issue to try the validity of a nuncupative will, the declaration ought to contain the substance of the will offered to be proved, or it ought to appear in some part of the record.</p>

This was an action of debt brought by Herman Hope v. Jacob Herman, executor of the will of Emanuel Herman, deceased, to recover a legacy. On the 1st November, 1844, Herman Hoke, the plaintiff, executed his note of that date, under seal, to Emanuel Herman, for the payment of $600, one year after date, with interest. On the 5th day of February, 1850, Emanuel Herman made his will in writing, of that date, which, after his death, to wit, on the 10th day of July, 1851, was proved.

j This was an amicable action in which James Parker, guardian of Thomas D. Parker, was plaintiff, and Richard Parker and Robt. C. Sterrett, as executors of the will of Thomas Urie, deceased, were defendants. The action was to be in the nature of a count for money had and received for the use of the plaintiff. The case to be tried without regard to the form of action or the proper joinder of parties, the money in question being considered to be in the hands of the defendants.

Error, to the Common Pleas of Mifflin county. This was a proceeding by scire facias on a judgment. A judgment was entered in Mifflin county -on May 9, 1838, in favor of Isaac Thomas v. Jesse Thomas, entered on a bond and warrant of attorney to confess judgment; the same being in the penalty of $4000, dated April 20, 1838, conditioned for the payment of $2000 with interest, in one month from date.

This was an appeal by David Ake and Joseph Ake from the decree of the Orphans’ Court of Blair county, confirming the report of the auditor on the account of the appellants, as executors of the will of Jacob Ake, deceased.

This was an action of trespass, quare clausum fregit, by Joseph Stewart v. McMurtrie, Hamlin, Nightwine, and Wolfkill. The pleas were, Not guilty, liberum tenementum, &c. Joseph Stewart brought the action against the defendants for opening a road through fields in his possession. Stewart having died, the administrators of his estate were substituted.

Error, to the Common Pleas of Blair county. This was an ejectment by William M. Lloyd v. William Williams, for a house and lot of ground, No. 14, in Hollidaysburg. On the 9th Nov. 1847, Wm. Williams, the nominal defendant, owning a large amount of real estate in and adjoining Hollidaysburg, free from encumbrance, sold and conveyed to his mother, the real defendant, a small part thereof, viz.: lot No. 14, the premises in controversy.

On the 4th day of June, 1847, Michael Hoover, the maternal grandfather of the above-named minors, made his will, which after his death was proved on the 31st day of July, 1847, and letters testamentary were issued to Christian Titzel, the executor, appointed therein.

Spangler. In 1843 Jacob Spangler died, having made his will, in which he appointed Charles Weiser and Herman Alricks, the executors. Weiser appears to have been the acting executor, and in 1844, -’46, and ’47, he settled his accounts as executor, and received the usual allowances.

This was an appeal from the decree of the Ornhans’ Court of Berks county. Jacob Leibersperger and Caroline bis wife, late Caroline Eetherolf, cited John Shollenberger, late guardian of said Caroline, to render his account. April 5, 1850, the account was filed, and it was referred to an auditor, who made report to the Orphans’ Court of Berks county — finding a balance of $1055.90 due accountant.

This was an amicable action of ejectment by George Auman and Others v. Elizabeth Auman, for a house and piece of land, containing above nine acres. Matthias Eaftzinger was, in 1813, the owner of the premises.

<p>1. Possession and use of personal property by one indebted is evidence of his ownership, unless it has been sold under judicial process and purchased in for him, or is held by him in.trust. But by the Act of 1848 a married woman may have property in her own right which will not be subject to levy for her husband’s debts. Of such property possession by the husband is no test of title.</p> <p>2. But to bring the property of a married woman within the protection of the Act of 1848, it is necessary to prove that she owns it,' as being hers before marriage or that she acquired it afterwards and in what way. Mere evidence that she purchased it is not sufficient to give her title — it must be satisfactorily shown that it was paid for with her own separate funds. In the absence of such evidence the presumption is violent that the husband furnished the means of payment.</p> <p>3. This last rule applies to real as well as personal estate.</p> <p>4. No mere agreement between husband and wife whether in writing or verbally, will avail as against creditors of the husband without proof that the property belonged to the wife independent of agreement between themselves.</p> <p>5. An arrangement between a husband and wife that the husband purchase property on her credit and manage it as her agent and pay for it out of its proceeds, will not protect it from his creditors.</p> <p>6. A suit to recover damages for personal property of the wife sold under execution as the property of the husband, should be brought in the name of the husband and wife for the use of the wife, and not in the name of the wife alone.</p>

<p>Certiorari to the Court of Quarter Sessions of Cumberland county.</p> <p>A petition was presented to the Court of Quarter Sessions, in which it was stated that the petitioners labored under inconvenience for want of a road to Oak Grove school-house, and one of them complained of a road passing through his land and injuring it, which injury might be avoided by changing the route and location of the road. The part which was suggested to be vacated began at or near a corner of land of Bomberger and Neivcomer, thence, about a mile in distance, to the house of Coover, which was situate at a point of junction with a road leading to McCune’s mill. The road proposed to be laid out, instead of the fart to be vacated, began at or near the corner of lands of Bomberger and Newcomer, thence to a point at or near Oak Grove school-house. The schoolhouse was on a public road leading from Coover’s past the schoolhouse towards McCune’s mill, and it was about 141 perches distant from Coover’s.</p> <p>The Court appointed three persons to view the road between the points to be vacated, and if they or any two of them agree that it has become inconvenient, and that there is occasion for another in lieu thereof, that the same be laid out by them, &c.</p> <p>The viewers reported that they viewed the road, &c., and that two of them report in favor of vacating the road desired to be vacated, and in lieu thereof located a road beginning at the same point, and running, by a diiferent course from the one proposed to be vacated, tbence 280 perches to a point in the public road leading to McCune’s Mill; the said point of intersection being 25 perches from Oak Grove School-House. — The said point of intersection was between the school-house and Coover’s house.</p> <p>Exceptions to the report were filed: — one was as follows: 1. The petition is to vacate part- of a road, and supply the part vacated by another in lieu thereof; and the viewers vacate the said part and do not supply its place by another road, but lay out a new road between other points and running in a different direction.</p> <p>2. The petition and order fixes a point on the route between the points to be vacated, and requires the viewers to locate the road/ supplying its place at or near said point.</p> <p>3-. The viewers do not report that the part of the road vacated has become useless, inconvenient, or burdensome, without which the Court have no authority to vacate it.</p> <p>The Court below said that it was the duty of the viewers to lay out a new road, so as to supply the place of the part vacated, and form a connection between the parts of the old road which have not been vacated. That this could have been done by carrying the road on the bed of, the old road leading to Coover’s, had the petitioners not limited them to a point at or near the school-house: 2 Rawle 422. The Court thought the petition was not in proper form, and that it trammelled the viewers in the performance of their duty: Newville Eoad Case, 8 Watts 172. The proceedings were set aside.</p> <p>This was assigned for error.</p>

This was an action of replevin brought by John and Peter Lauck, as partners, v. William M. Henderson, administrator of the estate of James Preston, deceased, for 742 bushels of corn, of the value of $371, delivered to Preston on 12th April, 1852, at a mill which Preston had on lease.

<p>1. Administrators in making distribution amongst heirs should take refundr ing bonds, otherwise they may be liable to creditors whose claims do not then appear.</p> <p>2. A ward, a few weeks after arriving at full age, executed a receipt in full to her guardian who had not settled any guardianship account. Above two years afterwards the guardian died, and the administrators, relying on the receipt, several years afterwards made distribution among the widow and heirs. Soon after, on petition, an account of the ward's estate was directed to be made by the administrators, and a balance was decreed in favor of the ward: Held, that though more than six years had elapsed from the death of the decedent before the petition was presented, and though distribution had been made, the administrators not having taken refunding bonds wore hold to be personally liable for the balance due the wards, they having had an amount of assets sufficient to pay the same.</p> <p>3. The verbal declaration of the ward after arriving at full age, that she had received all that was due to her by her guardian, on the faith of which declaration, together with her receipt to the guardian, the administrators made distribution, will not estop her from claiming from the administrators the amount finally decreed to her, they having made distribution of the assets without having taken refunding bonds.</p>

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was an action of trespass by Smith, Murphy & Co. against David Smith, former sheriff of Cumberland co., for levying and selling certain store goods under executions against Robert Snodgrass.</p> <p>It appeared that Snodgrass on the 7th and 8th April, 1852, purchased from the plaintiffs, who were merchants in Philadelphia, certain merchandise to the amount of $676.22, and for which he gave to them his note, dated April 7,1852, and payable six months after date. The goods were forwarded to Snodgrass and put into his store at Carlisle.</p> <p>On 3d May, 1852, Snodgrass executed an authority to confess a judgment in favor of John Noble for $1400, to indemnify him as surety for Snodgrass in two notes. On 7th May, 1852, judgment was entered in favor of Noble, and a fi. fa. was issued.</p> <p>On the same day judgment was confessed by Snodgrass in favor of Somers & Snodgrass, for $785.82, on which 'also a fi. fa. was issued. The two executions were received by the sheriff, Noble’s being first in order. On the next day and within a few days after-wards, other judgments were entered and fi.fas. issued. The sheriff levied on household furniture and store goods, and sold to the amount of $2387.81. Out of the proceeds he discharged Noble’s execution, and another part was paid on account of the execution of Somers & Snodgrass.</p> <p>Before the sheriff’s sale, an agent of Smith, Murphy & Co. notified the sheriff that they claimed the store goods, and in this case they claimed to recover on the allegation that the purchase by Snodgrass from them was’ fraudulent, and vested no title in him to the goods purchased.</p> <p>The deposition of W. E. Albright was offered on the part of the plaintiffs. It was to the effect that he was employed in the store of the plaintiffs at the time of the purchase by Snodgrass, and that the latter purchased the goods stated. That he, the witness, went to the store of Snodgrass, before the sale, with a bill of the goods, and identified a number of them as being in the custody of the sheriff. It was objected to his testimony that the deposition and the bill of the goods annexed was not competent evidence to establish a sale and delivery of the goods — that the plaintiffs’ book of original entries was the proper evidence for that purpose. It was admitted.</p> <p>The depositions of other persons were offered and received under objection. They referred to other purchases of goods made by Snodgrass from other persons, and of conversations with him — some of the conversations having taken place several months before the purchase from the plaintiffs.</p> <p>Points were submitted on each side. In reply to the first point submitted on part of plaintiffs, the Court charged that, If Snodgrass knew, when he made the purchase, that he was insolvent and unable to pay for the goods, and concealed from the plaintiffs his inability to pay, and thus obtained possession of the merchandise without consideration, and soon after failed and became insolvent, this would render the* contract fraudulent and void, and that the plaintiffs might rescind it and recover the goods or their value. In reply to defendant’s first point he charged, inter alia, that to render the purchase fraudulent, deceptive and false representations were not necessary, but, that the purchase must have been made with a design not to pay for the goods ; but the mere fact that, the purchaser was at the time insolvent, and did not know of his insolvency, would not render the contract void. He concluded by saying, but, if Snodgrass knowing, when he made the purchase, that he could not pay agreeably to the terms of his contract, that he was insolvent and wholly unable to pay, and purchased with the design and intention of getting the goods into his possession without paying for them, then such purchase would be fraudulent, and the plaintiffs may recover. .</p> <p>Error was assigned to the charge and to the admission of the depositions.</p> <p>-, for the plaintiff in error. — To enable a seller to rescind a contract for the sale of goods, it must be shown that deceptive assertions and false representations were made by the purchaser to induce the seller to part with his goods. The mere insolvency of the purchaser, though known to himself, and a design on his part not to pay for them, is not sufficient for the purpose: 1 Greenleaf’s Rep. 379, Cross v. Peters; 7 Taunton 59; 4 Greenleaf 245. The depositions referred to independent transactions and conversations having no reference to the claim of the plaintiffs.</p>

<p>Appeal from the decree of the Orphans’ Court of York county.</p> <p>This was an appeal by William Miller, jun., administrator of the estate of Esther Miller, deceased, from the decree of the said Court, directing distribution of the proceeds of sale of certain real estate.</p> <p>Martin Weiser died in 1822, and letters testamentary were, on the 5th of November of the same year, granted to his sons, John and Martin J. Weiser, whom he had appointed executors. John never acted until after the death of Martin J. Weiser. On the 25th July, 1823, Martin J. Weiser, the acting executor of Martin Weiser, filed his administration account, the balance on which he distributed among the heirs. This balance consisted of personal estate, of which the testator made no disposition in his will, and which descended to his children in equal shares.</p> <p>On the 23d of October, 1823, William Miller, the husband of Esther Miller, who was one of the daughters and heirs of Martin Weiser, in consideration of the payment of $357.22 for his “dividend share of the personal estate, as far as the same is settled, of Martin Weiser, deceased,” executed a release to Martin J. Weiser, as acting executor: and covenanted to refund a proportionate part of any debt or demand that might' thereafter be recovered against the estate. The amount thus paid to the husband of Esther Miller, was more than her full share of the whole estate as reduced by a subsequently recovered debt. To November Term, 1832, a judgment was recovered against the estate of Martin Weiser, for $2214.26, on an administration bond, in which he was surety. The one-half of this judgment was paid by the other surety; and Martin J. Weiser paid the other half, $1107.13, for which he had not funds of the estate in hand. Some of the heirs refunded; but the husband of Esther Miller was insolvent and could not. Esther Miller died in 1829, leaving her husband and children to survive her. After the death of Martin J. Weiser, John Weiser, as surviving executor, received funds of .the estate, under' a provision of his will, viz :</p> <p>Item — “ I give unto my daughter Lydia two hundred dollars, in such way as my executors may think best; also, the square of ground in the borough of York during her life, and at her death the same to be sold by my executors, and the money to be divided in equal parts between her children, if she has any, otherwise be equally divided between my sons and daughters. I also give her one undivided half of my house and lot in Bottstown, in West Manchester township, York county, during her life; if no heirs, then the same be equally divided between all my sons and daughters, but said house and lot to remain in my executors’ care in trust for the use before mentioned: they may at any time dispose of the same and put the money at interest or purchase other property for the use and benefit aforesaid.”</p> <p>Lydia died without issue, leaving her husband surviving, and the money received by the surviving executor was from the sale of the square of ground, and of a mortgage in which the proceeds of the sale of the Bottstown property were invested. Said Esther died in 1829, before the death of Lydia, and before the Bottstown property was converted into money.</p> <p>The surviving executor of the will of Martin Weiser settled an account of this fund, on the 1st of June, 1848, exhibiting -a balance of $553.85. An auditor was appointed to distribute. He ,awarded the share of Esther to the executrix of the will of Martin J. Weiser.</p> <p>Exceptions were filed to the report of distribution, on behalf of the administrator of the estate of Esther Miller; and on the 3d of May, 1852, the Orphans’ Court confirmed the report of the auditor.</p> <p>On the part of the administrator of the estate of Esther Miller, deceased, exception was filed to the overruling of the exceptions to the auditor’s report, and in not awarding to him the share of Esther Miller in the fund for distribution.</p>

This was an action of ejectment to April Term, 1851, by Sarah Stehley v. Abbey Beal and William Sayford, to recover the one undivided third part of a house and part of lot No. 163, situate on the… Held: or directed to be sold, may elect to take the land instead of money, and thus prevent a sale.

This case in the Common Pleas was an appeal by James M. Porter, from the settlement made by the Auditor-General and State Treasurer, of his account as county treasurer for Northampton county, for the year 1835.

<p>1. Where a clerk has the general agency of a store belonging to two partners, and has been accustomed to purchase goods for the store and to give due-bills therefor, with the knowledge of the partners or of one of them, he may on making a purchase of goods take up due-bills previously given by him for purchases previously made, and give a noto for the whole of the purchases.</p> <p>2. If a person suffers his name to be held out to the public as a partner in a store, bills for store transactions made out in the store and rendered in the name of the alleged firm, are competent evidence as to the existence of the partnership.</p> <p>3. Though in the declaration a count existed for goods sold and delivered, and another on certain notes or due-bills, but the only breach assigned was the non-payment of the notes, there could be no recovery for the goods purchased and which formed the consideration of the notes, distinct from or independent of the notes.</p>

This was an action of assumpsit by George Zimmerman and Barbara his wife, late Barbara Stoner, v. Elizabeth Stoner, administratrix of Henry Stoner, deceased, to recover a sum of money which Henry Stoner received in his lifetime, and on part of plaintiff alleged to belong to his daughter Barbara, out of the estate of her deceased grandfather, after the death of her mother. “ The narr. was filed on the 24th March, 1851.

<p>1. A purchaser at sheriff’s sale of the husband’s interest in real estate, cannot recover the possession in an ejectment against him alone where the title is in his wife, acquired since the passage of the Act of 11th April 1848 and before the date of the judgment under which the premises were sold. The wife need not become a party to the record — the husband may defend her interest.</p> <p>2. The declarations of a grantor as to fraud on Ins part are not evidence against an honest purchaser for an adequate consideration, though they were made before the execution of his conveyance, he having no knowledge of any fraudulent design in the grantor.</p> <p>3. A mistake in the computation of interest on bonds which formed the consideration of a deed will not affect its validity.</p>

<p>Erro& to the Common Pleas of Lebanon county.</p> <p>This was an action _ of dower, by Catharine Light, widow of Joseph Light, v. Henry Light, brought to recover dower in a tract of about 168 acres of land, and in another tract of about 50 acres. It was pleaded that the plaintiff had accepted of certain bequests given her by the will of her husband, in lieu and bar of her dower. Nov. 7th, 1851, verdict in favor of the defendant.</p> <p>Joseph Light, the husband of the plaintiff, died on the 4th March, 1850, seised of four improved tracts of laud, containing nearly 600 acres; and of another tract of about 360 acres, partly improved, and of personal estate, amounting to upwards of $10,700. By his will, dated 16th October, 1848, and proven on 8th March, 1850, he bequeathed to his wife two cows, four hogs, together with certain beds and household furniture and kitchen utensils, which she had at the time of her marriage.</p> <p>He also devised to her the use and occupation of the east part of’ the dwelling-house during her life; and directed that several sums of money be paid her yearly, amounting to $216 annually ; and in the event 'of her leaving the house, she was to have a house built or leased for her, and she was to receive from one of her sons thirty dollars yearly in addition, which legacies he directed “ to be in lieu and stead of her dower at common law.”</p> <p>On the 16th March, 1850, before the inventory of the personal estate was taken, she made her mark to a receipt, in which it was stated that she acknowledged to have received from the executors, devisees in said will, “ all the articles and things devised to her by my said husband,” and, it was added, “ I hereby accept under the said will.” The inventory was taken immediately after-wards.</p> <p>It was testified by the person who wrote the receipt in question, that on the 16th March, Í850, before the appraisement was commenced, or whilst the inventory was being taken, the widow called him into another room to ask his advice, and that he told her that she might probably get more if she did not take under the will, but he advised her to accept. That they returned to where the executors were, and she accepted the articles. The witness stated that the value of the personal estate was not ascertained when she signed the receipt.</p> <p>A few months afterwards she took away from the house some beds and other furniture, with a cow and two hogs. It was said that other of the personal property, selected by her, was sold by the executors. On the 15th June, 1850, she removed from the house, and never returned to it. She did not receive any of the annuities devised to her, nor was a house built or leased for her.</p> <p>Between the 16th and 26th of March, 1850, she consulted counsel, and on the 8d August, 1850, a notice was served on the executors, notifying them that she had concluded not to accept under the will, and would claim her share under the intestate laws.</p> <p>It was said that the inventory filed, amounting to $5526, was incorrect, to the extent of $1000, in the amount of a judgment; and that certain stocks, to the amount of $8000, were omitted in it. It appeared that the stock was claimed by one of the executors as belonging to him, as having been purchased for him, or given to him by the testator, but that at the time of the appraisement it was agreed among the heirs that the stocks should be omitted in the inventory, and divided. It was not shown that the widow was present at the time of the dispute about the stock..</p> <p>It was testified that she knew of the existence of the bank stock.</p> <p>The stocks were afterwards put into an additional inventory, and were valued at $2830, exclusive of any dividends on them.</p> <p>It was further stated on her part, that, since the trial of this action of dower, it had appeared that the estate of the testator was entitled to $1402.50, the proceeds of certain land sold by the testator; this sum, with the stocks, &c., enlarging the estate nearly $5500.</p> <p>On the part of the plaintiff, various points were proposed: 1. That the election was not binding on the widow, not having been made in the manner stated in the 35th section of the Act of 29th March, 1832.</p> <p>2. That to bar her dower, the proof of an election by her must be clear, and that it was made under a full knowledge of the value of the real and personal estate, and of her legal rights respecting the estate.</p> <p>3. That the receipt given in evidence was not to be regarded as an act indicating her election, because not read and explained to her in the only language she understood (the German); because she was not then informed of the value of the estate, or the amount of its indebtedness; and that, by law, she was entitled to one-third part of the personal estate absolutely, and to one-third of the net proceeds of the real estate.</p> <p>4. That the receipt and her removal of certain portions of the property did not, under the circumstances of the case, bar her claim of dower.</p> <p>5. That in equity a' widow will be protected against an improvident election.</p> <p>The case was tried before Pearson, J. He charged, inter alia, that if the writing was signed, and articles selected and received under the will by the demandant, with a knowledge of all the facts of the ease, and the nature and extent of her husband’s estate, it was binding on her. That a defect of legal knowledge on her part was not proved, and was not to be presumed. That she was bound to know the law, ignorance of which would not excuse her: 7 Watts 372; 1 Story’s Rq. 111. Before making her election she was entitled to be fully informed as to the situation of the estate, and might have called for such information, and if withheld, she would be entitled to relief in equity. But if she knew as much about the estate as the other heirs — if she had heard of the stock, and knew ,of its amount, and had reason to believe that the debts would nearly or quite exhaust the personal estate, and called for no further information, she would be concluded by the election if the personal effects and the stock would be exhausted in the payment of debts. He further charged, that the election need not be as provided in the Act of 1832; that it may be by parol as well as in writing; and may be evidenced by long acquiescence: 17 Ser. R. 16, Cauffman v. Cauffman.</p> <p>To the second point he answered, That if she knew the facts, it was all that was necessary to render her election obligatory.</p> <p>To the third point he charged, That the receipt alone would not be binding if not read and explained to her: but if she knew of the condition of the estate, then if the election was made without fraud, concealment, or overreaching on the part of the heirs or executors, it would be binding. That the removal and detention of the goods by her was an act of confirmation, but not conclusive. That the failure to provide a house for her, or to make the payments provided by the will, did not give her any additional right to change her election if fairly made before.</p> <p>As to the fifth point, he referred to the jury whether the widow was ignorant or not of the condition of the estate; or whether the situation and value of the stocks or other personal effects was made known to or concealed from her.</p> <p>That the inventory first made amounted to $5526; the error in the judgment to about $1000; and the stocks not appraised to nearly $3000, making the personal estate amount to about $9500. That it was in proof, that the debts amounted to between eight and nine thousand dollars, and that it might be reasonably presumed that by the time the estate was settled, the whole personal estate will be exhausted. That the law would not seize upon trivial circumstances to set aside an election. He further observed, that the estate would rent for $1200 per annum. The husband bequeathed to her certain personal property, the use of a house, and $246 charged on his real estate, instead of $400 for rent of the land. He referred to the jury to decide how far she had been injured by the election, and whether it was evidence per se of mis-' take or overreaching.</p> <p>Errors were assigned; the first and second of which related to an offer to show her visit to counsel after the election, and of her declarations, in order to show that she did not then understand her legal rights. The Court rejected her declarations; but held that her acts might be shown, in order to rebut any inference from her former acts, as part of the res gesta.</p> <p>3. In not answering the first point affirmatively.</p> <p>4. In the answer to the second point.</p> <p>5. In their answer to the third and fourth points, and in the instruction as to her ignorance of the law.</p> <p>6. In the answer to the fifth point.</p> <p>7. In the instruction as to the error in the amount of the judgment, and the omission of the value of the stocks, &c.; and to the instructions in connection with the rents.</p>

This was an amicable action entered in tbe Court of Common Pleas of Berks county, and case stated for the opinion of the Court. Held: owned, used, or invested by any person, company, or corporation, in trust for the use, benefit, or advantage of any other person, company, or corporation, excepting always such property as shall be held in trust for religious purposes,” &c. Jones, J., was of opinion that this was an annuity, and being under $200 that it was not…

<p>Error to the Common Pleas of Franklin county.</p> <p>This was an action on the case on promises, brought to October Term, 1851, by Jacob Oyer v. John M. McDowell, administrator of the estate of Jacob Myers, deceased.</p> <p>The declaration contained a special count, in which it was alleged that, in the year 1847, in consideration that the plaintiff would not remove to the west, but would remain in the county of Franklin, and farm the place of Jacob Myers, and attend to his business generally, as long as Myers should live, that Myers undertook and' promised the plaintiff that Myers would give him a tract of land, situate in Montgomery township, in said county adjoining lands, &c., and a small lot which the said Myers had before that time given to the plaintiff and of which the plaintiff was in possession, containing about fifteen acres, and would make him a deed for both of said tracts of land, as well the one of which the said plaintiff was possessed as of the tract he then and there promised to give him.</p> <p>It was further alleged that Myers promised to build for the plaintiff an addition to the house which was erected on the piece of land of which the plaintiff was in possession, and dig a well for him, and pay for these improvements. It was alleged that the plaintiff remained and farmed the place, &c., till the death of Myers, a period of about three years and a half. It was averred that the land had not been conveyed, nor an addition to the house built; nor the well dug and the improvements paid for; to the damage of the plaintiff $2000.</p> <p>The declaration also contained counts for goods sold and delivered, work done, &c., concluding to the damage of the plaintiff to the same amount.</p> <p>A bill of particulars and statement of the cause of action was furnished, in which it was stated that the plaintiff sought to reco • ver the book accounts sworn to, and also a balance due on a settlement between the plaintiff and Myers, which appears on Myers’ books, and which was made in April, 1850. Also for services in managing and conducting Myers’ business for three years and a half before his death, under the following circumstances: The plaintiff, some time in 1847, was about to remove to the west. Myers insisted on his staying in Franklin county, and farming his place, and attending to his business generally, and told him that he, the plaintiff, held the small house he lived in, the title he had already and, the possession ; and that he would give him some twelve or fifteen acres adjoining the house and lot he had already given him, and that he would make him a deed for the whole; that he would build an addition to the house, and dig a well, and pay for these improvements, if the said Oyer would stay, &c. An account was stated for work done, &c., and for money paid, stating a balance of above $50.</p> <p>The plea was Not guilty. In the counter statement it was alleged that the defendant refused to put in any other plea.</p> <p>No point was submitted on part of the defendant.</p> <p>Kimmele, President Judge, inter alia, charged, viz.:</p> <p>“ If you are satisfied, from the evidence, that the intestate, in his lifetime, made a parol agreement with Oyer that if Oyer would not remove to the west, hut remain in Franklin county, and attend to intestate’s business during his lifetime, that he would give him the Wyand house, with a certain number of acres attached thereto —that Oyer remained and fulfilled his part of the contract, and that intestate made no provision before his death to secure the property to Oyer, then you ought to allow Oyer the value of the land as a compensation for his services; .that being the price fixed upon by the parties as the value of the services rendered.</p> <p>“ That there was such a contract is but faintly denied by defendant, but he contends that if there was such an agreement as is alleged here, that the house called the Wyand property, with the ground enclosed, about half an acre, was all that was spoken of by intestate. The evidence on this point is somewhat contradictory. Some of the witnesses speak of the Wyand house without mentioning any number of acres; others of six acres and some perches, whilst others, again, say that the intestate spoke of fourteen or more acres.</p> <p>“ You will determine, from the evidence, how many acres were contracted to be given by the intestate to Oyer,’ and the value thereof, and that amount, together with so much of the book account as you shall find due and unpaid, -will be your verdict.</p> <p>“Something has been said of a settlement between the intestate and the plaintiff. If there is any evidence to satisfy you that the plaintiff’s claim has been settled for and paid, then he cannot recover.”</p> <p>Verdict was rendered for the plaintiff for $1165. The amount was subsequently reduced to $1000, and judgment was entered for that amount.</p> <p>It was assigned for error: 1. That the Court erred in admitting in evidence the plaintiff’s book account. 2d. In instructing the jury “ that there was such a contract is faintly denied by the defendant.” 3d. In saying to the jury: “ You will determine from the evidence how many acres were contracted to be given by the intestate to Oyer, and the value thereof, and that amount, together with so much of the hook account as you shall find due and unpaid, will be your verdict.”</p>

<p>Certiorari to William Kline, Esq., a justice of the peace.</p> <p>This was an information made on the 13th day of June, 1853, against Henry Omit, before William Kline, Esq., a justice of the peace in Harrisburg, for a violation of the provisions of the 1st section of the Act of the 22d April, 1794, entitled “An Act for the prevention of vice and immorality, and of'unlawful gaming, and to restrain disorderly sports and dissipation.”</p> <p>In the information the defendant, Henry Omit, a licensed innkeeper, residing and keeping an inn or tavern, in the borough of Harrisburg, county of Dauphin, in the state of Pennsylvania, was charged “ with having done -and performed worldly employment or business, on the Lord’s day, commonly called Sunday, by selling one glass of spirituous liquors to an individual named Leonard J. Wright, a traveller, temporary dweller or sojourner in the house now occupied by the said Henry Omit, in the borough and county aforesaid.” June 13, 1853, warrant issued returnable forthwith. It was added: Same day, defendant appeared — ■ hearing had — and on proof being made, that on Sunday, the 12th day of June, 1853, at the borough of Harrisburg, the said Henry .Omit did sell from his bar one glass of spirituous liquors to a person named Leonard J. Wright, a sojourner, temporary dweller, or traveller: whereupon “ it is considered and adjudged by me, William Kline, a justice of the peace of Dauphin county, that the said Henry Omit be convicted, and is hereby convicted of having done and performed worldly employment, or business, on the Lord’s day, commonly called Sunday, contrary to the Act of the General Assembly of Pennsylvania, passed April 22, 1794 — and I, the said justice, do therefore adjudge the said Henry Omit to pay a fine of four dollars; which sum, by so doing and performing, he hath forfeited, to be distributed as the Act of Assembly directs; but, should the said Henry Omit refuse or neglect to pay the same, with costs, or sufficient goods and chattels cannot be found whereof to levy the same by distress, he, the said Omit, shall suffer six days’ imprisonment in the Dauphin county prison, or until he shall be discharged by due course of law.”</p> <p>Exception was filed, to the effect that the justice of the peace erred in deciding that the defendant was guilty of offending against the provisions of the 1st section of the Act of 1794, it being alleged that the Act complained of was not an offence against the said section of the said Act, but was within the Proviso to that section; that the said Act was not applicable to persons licensed to keep an inn or tavern under the Act of 11th March, 1834, and its supplements.</p> <p>The preamble to the Act of 22d April, 1794, 3 Smith’s Laws ■177-8, is as follows: Whereas, the Act of Assembly entitled “ An Act for the prevention of vice, immorality, and of unlawful gaming, and to restrain disorderly sports and dissipation,” passed the 25th of September, 1786, will soon expire by its limitation, and it is proper and requisite to continue or supply the same with certain additional alterations and amendments, the .better to secure the execution thereof: Therefore, Section 1. Be it enacted, &c., That from and after the 1st day of. August next, if any person shall do or perform any worldly employment or business whatsoever on the Lord’s day, commonly called Sunday, works of necessity and charity only excepted, or shall use or practise any unlawful game, hunting, shooting, sport, or diversion whatsoever, on the same day, and be convicted thereof, every such person, so offending, shall, for every such offence, forfeit and pay four dollars, to be levied by distress; or in case he or she shall refuse or neglect to pay the said sum, or goods and chattels cannot be found whereof to levy the same by distress, he or she shall suffer six days’ imprisonment in the house of correction of the proper county: Provided, always, That nothing herein contained shall be construed to prohibit the dressing of victuals in private families, bake-houses, lodging-houses, inns, and other houses of entertainment, for the use of sojourners, travellers, or strangers, or to hinder watermen from landing their passengers, or ferrymen from carrying over the water travellers or persons removing with their families on the Lord’s day, commonly called Sunday, nor to the delivery of milk or the necessaries of life before nine of the clock in the forenoon, nor after five of the clock in the afternoon, of the same day.</p> <p>For Act of 25th Sept. 1786, see 2 Pallas' Ed. of Laws 474, &c.</p>

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was an action of ejectment to November Term, 1848, by Thomas S. Wilson, Ann D. Wilson, and others, v. David W. McCullough and others, for 2050 acres of land, called The Cumberland Furnace Estate.</p> <p>The case was up before, and a report of it exists in 7 Harris 77, &c. _</p> <p>_ The plaintiffs, except one, claimed as children and heirs of Eliza Wilson, formerly Eliza Ege. By marriage articles between James Wilson, her intended husband, and the guardians of Eliza Ege, then a minor, dated 21st July, 1817, Wilson covenanted to settle upon her, after her becoming of legal age, the one-half of her personal and real estate, for her use during life, with remainder to her offspring. She was married and came of full age in December, 1817. Whether she was of lawful age at the time cf her marriage, it was stated did not appear.</p> <p>On the 12th December, 1821, Wilson and wife, to secure a debt of the husband, mortgaged the whole estate to the Harrisburg Banh. The mortgage was recorded on 21st December, 1821. The marriage articles were not then on record; they were not recorded till 22d July, 1823. The lands in controversy were described in the mortgage.</p> <p>In 1828 a precipe was filed for a scire facias against Wilson and wife, on the mortgage. The scire facias did not actually issue, but an entry on the record, as follows, was made: — ■</p> <p>I appear to this case for defendant, without service of writ with the same effect as if a writ had been issued and served; but no other. Signed by “ J. B. Parker, for defendant.”</p> <p>A plea was entered for Eliza'Wilson that the lands mortgaged were her estate, and that at the time of the execution of the mortgage she was married. The plaintiff demurred generally, and a joinder in demurrer was had. The plea of payment was also put in. The Court rendered a judgment on the demurrer for Eliza Wilson; upon which the plea of payment was withdrawn, and verdict was rendered against James Wilson, the husband, for $8649.31. A writ of error was sued out, and it was assigned for error, 1. The Court erred in receiving the plea of Eliza Wilson; • 2. In giving judgment for the defendant instead of plaintiff. On 13th October, 1832, the judgment was reversed and judgment entered for the plaintiff. See the judgment referred to in the case of Jamison v. Jamison, 3 Wharton 457.</p> <p>After this, viz. to January T. 1833, No. 292, an amicable scire facias issued to revive the judgment in favor of Harrisburg Bank v. James Wilson and Eliza his wife. The docket entry was to this effect — “ Defendants by their agreement in writing, dated 30th March, 1833, appear and revive judgment for $10,302.76. It was stated that it was proved that the original paper was lost.</p> <p>Upon this judgment of revival a levari facias issued to April Term, 1833, in which the mortgaged premises were particularly described. The writ was returned sold, but conditions of sale not complied with. An alias writ of lev. facias was issued, in which the premises were also described, and the property advertised to be sold, when the following agreement with Jacob Albert was made: We agree that if an arrangement be made by Mr. Jacob Albert with the Harrisburg Bank, so that the said Albert procures a transfer of the judgment of the Bank against James Wilson and wife, and has the sale of the property of said Wilson and wife postponed until Thursday next, to permit the sheriff to go on and sell the said property on said judgment on Thursday next, in case the agreement between Jacob Albert and James Wilson and wife be not carried into effect before that day. It was dated 13th July, 1833, and signed Jambs Wilson.</p> <p>Eliza Wilson.</p> <p>Five days afterwards, viz. on the 18th July, 1833, an agreement was entered into, signed by James Wilson, Eliza Wilson, and Jacob Albert, in which it was stated that the sale of the mortgaged premises was postponed in consequence of Albert, with their know■ledge and consent, having advanced the sum of $9,673.89, the balance of the judgment to the Harrisburg Bank, with interest, &c.; that the bank has assigned to him the judgment, and it was agreed, in consideration of such payment and agreement, to stay the sale of the property, that in case of default being made in making certain specified payments by Wilson, Albert might be at liberty to sell the said mortgaged premises, they waiving all objections to the estate being sold on the ground “of any arrangement,” before made by the Harrisburg Bank or its attorney with the said Wilson and wife or any person in their behalf “ respecting said judgment.” Dated 18th July, 1833, and signed by James and Eliza Wilson, and Jacob Albert.</p> <p>On the same day, viz. 18th July, 1833, the judgment on the mortgage was assigned to Albert, and the levari facias was returned, the premises not being sold.</p> <p>There was no further proceeding on the judgment until 1835, when to April Term, 1835, a pluries writ of levari facias was issued, in which the premises were described; and on the 11th July, 1835, the sheriff returned, “ Sold to Frederick Watts, Esq., on the 22d April, 1835, for $13,700, and paid the same over to attorney Lyon.”</p> <p>5th April, 1835, sheriff’s deed. 9th April, 1835, deed by F. Watts and wife to Miller and Cooper. 10th October, 1837, deed Cooper and wife to Miller. 19th December, 1848, deed Miller and wife to Green and McCullough.</p> <p>The recorder of deeds testified that there was in the recorder’s office, no other mortgage of James Wilson and wife on the lands in dispute, or on any other lands at the time of the judgment on the mortgage in evidence, or before or after the date of that judgment till the time when Albert became the purchaser of the said mortgage ; and no other mortgage by Wilson and wife to the Harrisburg Bank. This was to show that the sei. fa. to January Term, 1828, No. 40, was issued upon the mortgage in question.</p> <p>, The plaintiffs offered to show that upon the faith of the record, judgments, and proceedings thereon, the lands in dispute had passed by conveyances to 48 purchasers who were then in possession, though not parties to the suit. This was rejected.</p> <p>On part of the plaintiffs, John Foster, Esq., former cashier of the Harrisburg Bank, was examined to show that the marriage articles were known to the bank at the time of the taking of the mortgage of Wilson and wife; and he stated that the existence of the articles was known to all the' directors. Nothing of it, however, existed on the minutes of the bank.</p> <p>A number of points were proposed on the part of the defendants.</p> <p>Graham, J., observed to the jury, that the plaintiffs allege that there was nothing connecting the judgment in the Common Pleas with the mortgage in the recorder’s office, and consequently that the title of Mrs. Wilson was not divested by the sheriff’s sale. That if the former decision of this case was understood by him, the lev. facias on the mortgage was not only irregular, but void, and therefore the sale did not divest the title of Mrs. Wilson; and he instructed the jury that the verdict should be for the plaintiffs. This instruction was the principal matter assigned for error.</p>

<p>1. A witness is not to be permitted, at the instance of the party calling him to repel an objection to his competency on the ground of interest established by other evidence.</p> <p>2. A garnishee in whose hands a note is attached is protected by the judgment against all claim to it on the part of an assignee, though the latter was not a party to the proceeding or had not actual notice of it.</p> <p>3. The law only requires of the garnishee that in good faith he shall see that the money is recovered against him in due course of law. Where there is no fraud or collusion on the part of the garnishee, a recovery against him in the foreign attachment is a good defence to an action against him by the defendant in the attachment or by one claiming as assignee of the note attached.</p> <p>4. In the case of a scire facias against a garnishee in a foreign attachment, where the garnishee had possession of the note, alleging payment,"one who appeared on the note as the second and last assignee of it,_ is, on the ground of interest, an incompetent witness on the part of the garnishee to prove that the first assignment of the note took place before the attachment issued, and was for value.</p> <p>5. The admissions of the payee of a note attached as his property, made whilst he had the note in his possession, that it had been attached, are not to be rejected on the assumption that they were made after the assignment of the note, the witness stating that the note had no assignment on it at that time.</p>

<p>Ebbob to the Common Pleas 'of Dauphin county.</p> <p>This was an action of covenant by Mary Hummel v. Sampson Louer, to recover arrears of ground-rent on certain lots in Hummelstown, Dauphin county. Their liability to ground-rent was decided in the case of Heckerman v. Hummel, 7 Harris 64. The action was not founded on contract, but on privity of estate; the plaintiff in the action being the assignee of the rent, and the defendant the assignee of the ground. It was said that the suit was brought under the provisions of the 8th section of the Act of 25th April, 1850 (Acts 571), by which it is provided: “That in all actions now pending, or hereafter to be brought in any Court of récord in this Commonwealth, to enforce the payment of ground-rent due and owing upon any lands or tenements, held by virtue of any lease for life, or a term of years or in fee, the lessor, his heirs and assigns, shall have a full and complete remedy therefor by action of covenant against the lessee or lessees, his, her, or their heirs, executors, administrators, or assigns, whether the said premises out of which the rent issues be held by deed-poll or otherwise.”</p> <p>The plea was nil debet. The plaintiff showed title to the ground-rent and that the defendant claimed and occupied the lots. The title was not contested. November 24, 1852, verdict was rendered for $13.66 damages. A motion was made that judgment be entered without costs.</p> <p>As to actions for recovery of ground-rent see Irish v. Johnston, 1 Jones 488-9; 2 Harris 112 ; Id. 157; 2 Harris 108,112; Id. 157; 3 Harris 195.</p> <p>By the first section of the Act of 20th March, 1810, it is provided that justices of the peace shall have jurisdiction of all causes of action arising from contract either express or implied, in all cases where the sum demanded is not above $100 ; except in cases of real contract where the title to lands or tenements may come in question; or action upon promise of marriage.”</p> <p>’ By the 20 th section it was provided that the power of justices shall extend to all cases of rent, not exceeding $100, so far as to compel the landlord to defalcate or set off the just account of the tenant out of the same,” &c. By the 26th section it is provided, in effect, that if any person sue in the Common Pleas for a debt or demand made cognisable by this Act, without having filed an affidavit of his belief that the debt or damages sustained exceed $100, and shall obtain a judgment which without costs shall not exceed $100, he shall not recover costs.</p> <p>By the 6th section of the Act 22d March, 1814, it was provided that justices of the peace and aldermen “shall have original jurisdiction of all cases of rent, not exceeding $100, to be recovered as debts of similar amount are recoverable.”</p> <p>Pearson, J., was of opinion that the plaintiff was entitled to full costs, and discharged the rule.</p> <p>Error was assigned to the refusal to enter judgment without costs.</p>

<p>1. In a lease of a furnace and grist and saw mill, the lessor promised and agreed “ to protect” the lessee, &o., “ in the use and enjoyment" of the premises, and “ to warrant and defend the premises to him and them against the claims or interruption or molestation of any person or persons whomsoever, so that the said lessee shall suffer no loss from any defect of title of the lessors to the premises:” Meld, that this was a covenant for quiet enjoyment and also of warranty.</p> <p>2. The covenant for quiet enjoyment embraced an adverse claim to the use of the water of the stream made on the part of The Commonwealth, as it would have protected against claims on the part of private persons.</p> <p>8. The water of the stream having been taken for the temporary use of the Pennsylvania Oanal by the officers of the Commonwealth, the original entry under its right of eminent domain having been made years prior to the lease in question, the case of Dobbins v. Brown, 2 Jones 75, was not applicable, and such taking was a breach of the covenant for quiet enjoyment.</p> <p>4. Parol evidence as to the time when the contest commenced between the Commonwealth and the then owner as to the right to the water, and the’ acts and declarations of the parties in reference thereto, was admissible, in order to aid in the construction of the lease; and it was proper to submit to the jury the question whether the parties to the lease had in view the claim of the state to the use of the stream.</p> <p>5. The right to the water was demised by the lease of the furnace and mills, it being necessary to the enjoyment of the estate.</p> <p>6. It was not incumbent on the tenants to whom the lessees had assigned the residue of the term and who were in possession when the interruption took place, to show that they were evicted from the premises or wholly deprived of the use of the water by the officers of the Commonwealth; the covenant for quiet enjoyment was broken by a partial deprivation by the lawful act of a paramount claimant, and the assignees were entitled to have the rent apportioned or extinguished according to the extent of their injury.</p>

<p>Error, to the Common Pleas of Dauphin county.</p> <p>This was an action of covenant to August Term, 1851, by Daniel Hartman, administrator of the estate of William Callender, deceased, v. The Keystone Mutual Life and Health Insurance Company of Harrisburg. It was founded on a policy of insurance granted to William Callender, upon his own life, in the sum of f 5000, and was dated 26th March, 1851, for the period of one year, payable within sixty days after due notice and proof of the death of the insured.</p> <p>The insurance was effected in Harrisburg, about noon of the 26th March, 1851. The insured left Harrisburg on the same day, and died at his own house in York, during the night following, at about half-past 3 o’clock A. m.</p> <p>The execution of the policy was admitted in the pleadings, also the death and notice to the defendants. The company, in defence, plead that at the time of effecting the insurance Callender misrepresented his occupation, stating that he was a farmer ; whereas it was alleged that he was engaged in the business of slave-catching. And it was further alleged that he was also engaged in running cars on the railroad. It was also alleged in pleading, that the insured had committed suicide.</p> <p>On January 21st, 1852, plea “ covenants performed absque hoc.”</p> <p>In a notice of special matter notice was given on 2d March, 1852, that the defendant intended offering evidence to show that Callender came to his death by his own hand — that he committed suicide by taking arsenic: also his written and printed application for insurance, and that in the same he misrepresented his occupation — that he was not a farmer as stated therein, “but was engaged in running cars and travelling upon the railroad, and in the still more perilous business of slave-catching.” Also that he purchased arsenic in Harrisburg on the day of insuring. Also that evidence would be given of the declarations of Callender before and after he obtained the policy, indicating his intent to commit suicide, and that a post mortem examination was had, and “a large quantity of arsenic found in his stomach, causing his death.”</p> <p>On 19th January, 1853, a further notice was given that the defendants would offer in evidence the different rates of premium depending on the occupation of the insured, and that the company would not or did not at any time insure any person engaged in running ears upon the railroad or occupied in such business, at the rate of premium charged in this case.</p> <p>On the 3d February, 1853, a rule was obtained to show cause why the defendant should not have permission to amend the pleading by withdrawing the words absque hoe, from the plea entered, and filing special pleas.</p> <p>Special pleas were filed, and were, first, that Callender had committed suicide, which it was alleged they were ready to verify.</p> <p>A further plea was filed as to the misrepresentation of his occupation, and it was alleged that his occupation was slave-catching; concluding as before.</p> <p>A further plea was, that he was engaged in running cars on a railroad — with the same conclusion.</p> <p>On the 15th March, 1853, after the case was called for trial, the application to amend the pleadings came before the Court, when the plaintiff objected to defendant withdrawing the plea of “ absque hoc” as moved, because the object was to give the defendant the conclusion to the jury ; also, to the special pleas, because the matter could be given in evidence under the general issue, and that the pleas were informal. These amendments the Court permitted, and plaintiff excepted. The plaintiff then demurred to the defendant’s first special plea; which defendant then was permitted to amend by concluding his plea to the country instead of with a verification; and the plaintiff then replied specially to the defendant’s second and third pleas.</p> <p>In the replication to the second plea it was denied that the occupation was misrepresented; and it was alleged that the occupation of the insured was not that of slave-catching, and concluding to the country. In the replication to the third plea it was alleged that the occupation was not misrepresented, and that it was not that of slave-catching.</p> <p>On the trial the policy was read on part of the plaintiff, and his counsel rested.</p> <p>On part of the defendant evidence was given of the post mortem examination of the body of Callender and of his stomach, and of the detection of arsenic in it. Also of his purchase of arsenic in Harrisburg, at about 8 o’clock A. M., of the day of his effecting the insurance.</p> <p>It was also proved that Callender, about nine o’clock of that day, inquired of the witness as to the manner of obtaining an insurance; and that the witness advised the insurance: that in the course of their conversation Callender inquired the effect as to the policy if the person insured committed suicide. Also other evidence was given of his declarations made before the insurance, in order to show an intention on his part to commit suicide. He left Harrisburg on horseback, about one o’clock of the day of his insuring, for his home at York; he was ill on the way, and died during the night next following.</p> <p>To support the issue under the second plea, evidence was given in order to show that Callender was concerned in hunting runaway slaves.</p> <p>The application for insurance was given in evidence, in which it ■ was stated that the applicant was a farmer.</p> <p>Under the 3d plea evidence was given that Callender had been engaged in running a railroad market car; but it was testified that about four months before his death he ceased doing so.</p> <p>It was proved, on part of plaintiff, that Callender, when young, was employed on a farm. That he was so engaged till he became a young man. That he never learned any other business than that of farming. That after he married he farmed for a year.</p> <p>Another witness testified that he knew Callender to be farming in 1843 or 1844; and that the witness had made a bargain with him in the fall of 1850, to farm some land on the shares. That he had bought a horse and made arrangements to get another person to plough his corn ground in the spring of 1851. It was also testified that in the fall of 1850, Callender had also made arrangements for making brick.</p> <p>In the list of particulars or conditions, on which information is required of applicants to this company for insurance, is an interrogatory, as follows:—</p> <p>22. Is the party aware that any untrue or fraudulent allegation, made in effecting the proposed assurance, will render the policy void, and that all payments of premium made thereon, and dividend credits, will be forfeited ?</p> <p>In the declaration which Callender signed, when proposing the insurance, it was stated that “ I do hereby agree that the said statement and this declaration shall form and be the basis of the contract between me and the said company, and that if the same be not in all respects true and correctly stated, the policy shall be void,” &c.</p> <p>. In the policy it is declared to be its true meaning and intent, inter alia, that in case the assured shall, without the consent of the Company previously obtained and endorsed upon the policy, be personally employed as an engineer or fireman, in running a locomotive or steamer, or in the manufacture or transportation of gunpowder, or in case he shall become so far intemperate as seriously to impair his health, or induce delirium tremens, or shall die by Ms own hand, in, or in consequence of a duel,” &c., “this policy shall be void, null, and of no effect.”</p> <p>In the course of the trial a person was offered as a witness on the part of the Company, who said, on his voir dire, that he was lately a stockholder in the company, and held a policy of insurance for $>1500, at the time that Callender was insured; but that he ceased to be a stockholder a few days before, and surrendered his policy, and had ceased to be examining physician. That he sold his stock, threw up his appointment, and surrendered his policy, as he understood, to enable him to become a witness in this suit. He was objected to on the ground of incompetency from interest, but he vras admitted.</p> <p>Another person was offered, on the part of the company, who said that he was a stockholder in it at the time of Callender Iseing insured, — that he then held a policy, and was then cleric to the company. That he sold his stock a year before, but surrendered his policy and resigned his clerkship at the request of the counsel of the company. That he knew at the time of the late Act of Assembly of 24th February, 1853, relative to the competency of witnesses, having been passed, and that it was necessary to make these arrangements in order to render him a witness.</p> <p>The 2d section of the Act of 1853 (Acts page 108), provides that the provisions of the 13th section of an Act approved on 14th April, 1851, shall be so construed as not to apply to suits depending or that may hereafter be brought against the Keystone Insurance Company, for any claim for insurance, where the person whose life was insured, died before the passage of the aforesaid Act.</p> <p>The 13th section of the Act of 1851 (Acts, page 559), provides that the provisions of a certain Act approved on 24th February, 1847, be extended to the said Keystone Insurance Company. And the provision in the 13th section of the Act of 1847, which, by the Act of 1853, it was in effect enacted was not to apply to this case (Acts of 1847, p. 161), was, inter alia, that “no member of the corporation shall be debarred his testimony as a witness in any case, on account of his being a member of the said company; and no member of the said corporation, not being in his individual capacity a party to such suit, shall be incompetent as a witness in any such suit on account of his being a member or an officer of said company.”</p> <p>It was proposed to prove by this witness, that the company would not have insured the life of a person employed in running cars on a railroad or in catching slaves, or if they did, it would have been at a much higher premium; and that although they had no printed rules applicable to any but safe lives, their practice was to exact a much higher premium where the risk was great.” This was objected to as irrelevant and incompetent; that it was not shown that the class of persons mentioned in the offer was embraced in the rules or table of premiums of_the company; and that notice had not been given to the plaintiff, that the rates of premium would be increased by the fact that the applicant, frevious to Ms application for insurance, had been engaged in running cars, or in slave-catching, the notice extending only to persons then so engaged, 'and that there was no condition in the policy that the running of cars upon a railroad thereafter, or the catching of slaves thereafter, should work a forfeiture of the policy:</p> <p>Also that the testimony offered amounted to no more than the opinion of the witness.</p> <p>The Court held it to be competent to prove misrepresentation at the time of effecting the policy, and that the business in which the party was engaged was more dangerous than the one he stated: That under the notices it was competent to prove the rates of premium charged or which would have been charged upon such occupations, and that the company did not insure and would not have insured the lives of persons engaged in running cars on a railroad.</p> <p>The witness stated that the occupation of a farmer was the least dangerous — that no rates are published but for occupations deemed safe — that the business of running cars on railroads is deemed hazardous, and an extra premium charged: — that the rate of premium depends on the exposure to danger: he further said, “we would not take a person at any price if it was known that he was engaged in slave-catching. I consider it a much more perilous occcupation than farming — liable to be shot down or assassinated: — ■ our rates of premium are based on good lives; if extra danger as to occupation or residence or state of health exists, an extra premium is charged.”</p> <p>The Court rejected evidence offered on the part of the plaintiff that about two years before Callender’s death, he declared his intention to quit the business of running cars, in which he was then engaged, and to have his life insured for the benefit of his wife and children; and to follow it up by evidence of declarations, made by him on various occasions down to the time of his effecting the insurance, to the effect that he would have his life insured for the benefit of his family as soon as he got money enough, or could spare it from his business, to pay for the policy. This was offered in- order to rebut any inference that he procured the policy, upon an idea recently conceived, witn a view to suicide.</p> <p>The evidence was rejected on the alleged ground that it was not competent to show such intention by the declarations of the party; because it would be his mere statement unsupported by any act which it tended to explain.</p> <p>After the evidence was closed, the plaintiff claimed the right under the pleadings in the' cause to begin and conclude to the jury. The Court determined that the defendant under the pleadings had the right to begin and conclude for the following reasons: “ The plaintiff had full notice more than thirty days before the trial that the pleadings would be so changed as to prevent the necessity of his preparing any evidence, and throw the onus probandi entirely on the defendant. This alteration has been allowed by the Court. In no event would the plaintiff have been called on to make more than mere formal proof had the pleadings stood as before; and the fair rule is, that the party who has to be first in proof, and maintain by evidence the affirmative of the issue, shall have the right to conclude to the jury.” At plaintiff’s request an exception was sealed to this decision.</p> <p>Pearson, J., charged the jury. In his answers to two of the points proposed on part of the plaintiff, he said: If the premium would have been increased, or the Company would have refused to insure altogether, had the true occupation been given, and a false one was stated, it would be such a falsehood as would vitiate the policy. That it need not be stated in the policy that it shall be void if any false representations are made. That the law requires the party to speak the truth. The conditions necessary to be inserted are those which are to avoid the policy, if it be violated after it is given. Further: If there was the suppression of a material fact increasing the risk, or which, if disclosed, would have led to the demand of a higher premium, or caused the insurance to be refused altogether, it is fatal to the policy: &c.</p> <p>On March 19, 1853, verdict was rendered for defendant.</p> <p>See the opinion of Chief Justice BlACk for the substance of the principal assignments oí error.</p>

<p>1. Where a purchaser at treasurer’s sale of land sold for taxes, upon claim of a right to redeem, conveys or assigns the legal title to the claimant, on receiving the amount of the redemption-money, the transaction is a redemption; the assignment or conveyance passes no title, and the assignee or grantee has none to convey to another person.</p> <p>2. Notice to a grantee of the purchaser, or to one claiming under such grantee, that the land has been redeemed, is not necessary in any case.</p> <p>3. A redemption having been effected by one partner in the transaction with money furnished by the other, it was Held, that the latter was to be affected with notice of the acts of the party redeeming in effecting the arrangement.</p> <p>4. The admission in the body of a deed of the payment o'f the consideration, or the receipt at the foot of it, is sufficient to give effect to the deed as against the vendor; but it is not evidence to extinguish the title of a third person on the ground that the vendee is a purchaser without notice of such third person’s right. To constitute the party a purchaser without notice, he must prove, independently of the receipt on the deed, the payment of the consideration before he had notice of the plaintiff’s equity.</p> <p>5. Though no one but the owner or party interested has a right to redeem against the will of the purchaser, yet if the latter accepts the redemption-money, the sale is avoided and the redemption enures to the benefit of the rightful owner. See also Orr v. Cunningham, 4 W. <& Ser. 294.</p>

<p>This was an appeal by George Hartman from tbe decree of the Oourt of Common Pleas of Union county, ordering distribution of the money raised by the sheriff’s sale of the real estate of John Hartman, jun., and paid into Court.</p> <p>John Hartman, jun., being engaged in the mercantile business, and seised of valuable real estate, became largely involved. Among other real estate owned by him at the time of his failure, was a tract of ninety acres of land, purchased by him from Charles Pisher. This tract of ninety acres’was part of the estate of George Pisher, deceased, the father of the said Charles Pisher, and was taken by the latter at the valuation, under a writ of partition or valuation, issued out of the Orphans’ Court of Union county, returnable to December Term, 1833.</p> <p>On the petition of Charles Pisher, praying to be allowed to take said real estate at the valuation, the following endorsement was made:</p> <p>“ Dee. 18, 1833, read, and property adjudged to petitioner on his giving bonds, with one security and recognisance. — Leonard approved of as surety.”</p> <p>This was not entered on the docket, but a full decree drawn by the Court was entered on the docket.</p> <p>The Court at December Term, 1833, adjourned finally on the 21st of December; and upon the 26th, five days after, a paper was filed, purporting to be a recognisance, signed by Charles Pisher and Leonard App, taken and acknowledged on the same day, before the clerk of the Orphans’ Court. This paper was never copied on the docket.</p> <p>John Hartman, jun., purchased this property from Charles Pisher about the year 1847, and failed in the fall of 1851.</p> <p>On the 24th of November, 1851, Q-eorge Hartman, the appellant, obtained a judgment against John Hartman, jun., for $6980. Previous to this, other judgments to a large amount had been entered against John Hartman. Executions were issued on the judgments of George Hartman, and others — the real property of John Hartman, jun., including the above-mentioned ninety acres, was levied upon, condemned and sold by the sheriff, and the money paid into Court. The ninety acres was sold for above $5000.</p> <p>Sarah Pry, late Sarah Pisher, a sister of the said Charles Pisher, and daughter of George Fisher, deceased, claimed her share of her said father’s estate, out of the money thus in Court, under the recognisance given by Charles Pisher, above mentioned. George Hartman claimed under his judgment. The Court decreed that the claim of Sarah Pry, amounting to $1794.29, be paid out of the fund. Prom this decree George Hartman appealed.</p> <p>It was admitted that the shares of the other heirs of George Pisher of the appraised value of the ninety acres had been paid. The widow of George Pisher died in December, 1849.</p> <p>"Various exceptions were filed: 1. That the Court erred in decreeing the payment to Sarah Fry. 2. In deciding that the clerk had power in vacation to take the recognisance. 3 and 4. In deciding it to be a lien — as, though filed, it had not been entered of record in the Orphans’ Court docket. 5. In deciding that it was no forced construction to presume that the recognisance was taken by the clerk and filed of record by direction of the Court, in pursuance of their adjudication, and that the requisition of the Act of Assembly was complied with. 6. In not decreeing the money, to the judgment of George Hartman.</p> <p>, The names of the counsel did not appear on the paper-books or on the minutes.</p>

This was a feigned issue directed between William F. Wagenseller, Henry ILuester, and Gfeorge Hartman, as plaintiffs, and Mary Smith and' Charles S. Davis, executors of the will of Jacob W. Smith, deceased, defendants. It was directed to try whether a judgment in favor of J. W,. Smith v. John Hartman, junior, to September Term, 1851, No. 91, for $1779.03, was payable or not out of the proceeds of sheriff’s sale of real estate of said John Hartman.

<p>1. A conveyance of land hy a debtor in failing circumstances 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. See the opinion in this case in reference to the case of Ashmead v. Hean, 1 Harris.</p> <p>2. In the case of an alleged fraudulent conveyance of land, the declarations and conduct of the grantor, about the same time, in relation to other of his property also claimed by the grantee, though made in the absence of the defendant, the grantee, may be given in evidence to establish the fraud.</p> <p>3. Also his declarations, made before his alleged indebtedness to the grantee, that the latter was in debt to him, were also admissible in evidence.</p> <p>4. The admission of the former evidence of an absent witness will not be ground of reversal, unless the proof is palpably insufficient to excuse his non-production.-</p> <p>5. A witness having been examined to prove acts of ownership, after sale, exercised hy the grantor of the land alleged to have been fraudulently conveyed, it was competent, upon cross-examination, to inquire as to the acts of ownership by the vendee over the same land.</p> <p>6. The decision of the Court in allowing or refusing a witness to he recalled and cross-examined, is not, generally, the subject of exception. But when the object of recalling the witness is to lay the foundation for proving his declarations out of Court, it must be allowed; if refused, and if proof of the witness’s declarations be rejected because he had no previous opportunity for explanation, it is error.</p> <p>7. Where a rule of the Common Pleas requires that before the deposition of a witness resident within forty miles can be read, he shall have been duly subpoenaed, the deposition may nevertheless be read without subpoenaing the witness in case he is paralytic and entirely unable to attend. The law does not require vain or impossible things.</p> <p>8. The pecuniary condition of the parties to an alleged fraudulent transfer of property, at or about the time of the transactions in question, is generally competent and important proof. And where the consideration for a conveyance of land was alleged to be a prior indebtedness of vendor to vendee for loaned money, it was Held that it was competent to prove, in support of the allegation of such loans, that the vendor, who had set up a store about the time they were made, was possessed of no considerable means or .property.</p>

<p>1. The giving notice to endorsers is the official duty of a notary; and when duly certified and not contradicted or questioned the presumption is that it was given according to law.</p> <p>2. In the case of a negotiable note payable at the Lebanon Bank in this state, the notary certified that he exhibited at said bank the original note, &c., and “ demanding payment, received for answer that no provision was made there for the payment thereof, of which I gave notice in writing to the endorsers of said note.-” 'In the absence of other evidence as to the character of the notice, it was Held, that the certificate was prmá facie evidence ih&i personal notice was given, though in fact the endorser sued lived in Danville, Montour county, in this state.</p>

<p>1. By an agreement in writing the plaintiffs agreed to build a high-pressure engine of the first class, to be delivered at a time designated. The plaintiffs were to “ find one man to put up said engine and stay with it two weeks after-completion.” The defendants were “to furnish all such help as may be required by our man for the putting of said engine and boilers in operation.”</p> <p>It was Held, 1. That the construction of the contract was for the Court and not for the jury. 2. That it was not obligatory on the plaintiffs to direct the construction of the foundations of the mill or walls of the building for which the engine was intended.</p> <p>2. A principal is liable for the act of his agent only when the latter is acting within the scope of his authority; and if the agent of the plaintiffs for the special purpose of putting the engine in operation was consulted by the defendants as to the construction of the walls of the building, the plaintiffs are not answerable for his mistakes in respect to the latter.</p> <p>3. The defendants were entitled to a deduction from the price of the engine for loss sustained by stoppage of the mill pccasioned by defects in the construction of the engine — also for loss occasioned by their hands being unemployed from the same cause.</p>

Euuoa to the Common Pleas of Lycoming county. This was an action of assumpsit to December Term, 1851, by Abraham Updegraff for the use of A. A. Winegardner n. The State Mutual Eire Insurance Company.

This was an action of slander brought by Jacob Stitzel v. Samuel L. Beck.

<p>1. The salary of a professor in a college is subject to taxation under the Act of 29th April 1844.</p> <p>2. The defendant is not properly an officer of the corporation, hut a person in employment; and he in liable to the tax of one per cent, upon bis occupation.</p>

At November Sessions, 1850, James Taggart, the plaintiff in error, was indicted for a nuisance in erecting a store-house on part of a public alley in the borough of Northumberland; and on November 8, he was found guilty. On the same day a motion for a new trial was made, which was overruled.