Volume 3 — Pennypacker's Pennsylvania Reports

<p>Error to the Court of Common Pleas No. 2 of Allegheny County.</p> <p>Ejectment, commenced April 18,1881, by Eleanor Weisley against Willa Arthurs, widow of Addison Arthurs, and lV. A. Lewis, guardian of Addison E. Arthurs, minor child of Addison Arthurs, deceased, for the recovery of a three-story brick house, situated in the third ward of the city of Pittsburgh, Pa.</p> <p>On the trial before Kirkpatrick, J., the following facts appeared: In the year 1871, the plaintiff desired to purchase the property in dispute, then belonging to David Sands. Sands refused to make sale to her. She then called upon defendants’ testator, who agreed to negotiate the purchase for her, take the deed in his own name, and execute a bond and mortgage in his name to secure the unpaid portion of the consideration. The hand-money, amounting to $1,200, was given by the plaintiff to him, and he paid it to Sands. The price agreed upon for the house was $3,000.</p> <p>Robert Arthurs, a brother of the testator, testified:</p> <p>“About the time of this purchase, he (testator) came and told me what he proposed to do; that this lady wanted to buy this house, and wanted him to take it in his name. He gave me the reasons why she wanted it taken in his name. I rather objected to it, and told him I didn’t like him to be putting his money into a house of that kind, and he said he didn’t propose to put any of his money in it, that she would furnish all the money, and she wanted it for reasons of her own. She thought that it shouldn’t be in her name; that she couldn’t own it and have any degree of comfort at all, and he thought that there was no risk on his part, and he proposed to do it; he got me to draw the title papers, which I did.</p> <p>“ Q. You say that he gave the reasons why she couldn’t own it; what were those reasons ?</p> <p>“A. The reasons he stated were, that she belonged to an unfortunate class, and if she had property in her own name she would be eternally raided by the police and black-mailed, and couldn’t own it; they wouldn’t permit any woman of her standing to own property without taking all the money that she would have.”</p> <p>April 4, 1871, Arthurs executed a will in which he devised, inter alia, as follows:</p> <p>“In relation to a three-story brick house, situate in the third ward, Pittsburgh, Pa., fronting on an alley running at right angles with Cherry alley and immediately in the rear of the house occupied by Dr. Walters, I direct that my executors shall convey the same in fee simple to Eleanor Weisley as soon as she shall pay over to my said executors the balance due, as will appear in the accounts on my books.”</p> <p>After the date of the will, Arthurs married, and had issue born not provided for in it. He died September 29, 1880.</p> <p>January 24, 1882, the jury rendered a special verdict, as follows:</p> <p>“We find that the plaintiff furnished to Dr. Arthurs the money with which he paid for the property in dispute, to wit: $3,000, which was paid as follows: $1,200 in August, 1872, the date of the purchase; $S20 in January, 1873; $515, July 11, 1873; and $544, the balance in full, March 16, 1874, said payments having been paid over by the said Arthurs to Sands when received by him or within a few days thereafter.</p> <p>“We find further that at the time of the purchase, in August, 1872, said Arthurs took possession of said property and held the same until his death, and that since that date it has been in the possession of the defendants; but that said Arthurs, during his lifetime, never disclaimed the trust nor held adversely to plaintiff. Upon- these facts, we find under the instruction of the Court for the plaintiff for the property in dispute, with six cents damages and costs, subject, however, to the opinion of the Court on the question of law reserved, to wit: those (that) raised by defendants’ fifth point.</p> <p>' “If the Court should be of opinion that the law is with the plaintiff, then judgment to be entered on the verdict; but if the Court should be of opinion that the la,w is with the defendants, then judgment to be entered for the defendants non obstante veredicto.”</p> <p>The fifth point of the defendant, referred to in the special verdict, was:</p> <p>“That even if plaintiff has shown a resulting trust in her as to the property in suit, such trust accrued more than five years before action brought to enforce it, and there can be no recovery here.” This was refused pro forma and reserved.</p> <p>February 18, 1882, the Court entered judgment on the verdict, and the point reserved in favor of plaintiff.</p> <p>' The defendant then took this writ of error, assigning for error the entry of the judgment.</p> <p>It cannot be disputed that there was a resulting trust, but under the act of April 22, 1856, no action could be maintained to enforce that trust.</p> <p>Plaintiff’s rights were complete in March, 1874, and she then had five years in which to bring suit: Clark a. Trindle, 52 Pa. St., 492; Best v. Campbell, 62 Pa. St., 476; Douglass v. Lucas, 63 Pa. St., 9.</p> <p>The provision in the will is a declaration of trust under the statute.</p>

1 of Allegheny County. Assumpsit by John S. Hays, surviving executor and trustee under the last will and testament of James H. Hays, deceased, against The Baltimore & Ohio Railroad Company, operating The Pittsburgh & Connellsville railroad. The following facts were agreed upon in said action in the nature of a case stated.

Appeal by John Huckestein and Henry Huckestein, copartners, as Huckestein Judgment was entered against the defendants November 16, 1881, in favor of A. J. Jolly, for $1,052 52, upon a confession contained in a bond.

1 of Allegheny County. Ejectment by T. J. Kenney against John McMurray and' Robert Potter for four lots of ground in North Fayette township. Upon the trial in the Court below before Stowe, J., the following facts appeared: Both parties claimed the land through James McCandless. On June 1, 1867, McCandless sold to C. H. Love one hundred and fifty acres of land at Oakdale, Allegheny county, for $15,000, taking a purchase-money mortgage from Love for $10,000.

1 of Allegheny County. Case by William Gardner against The Pullman Palace Car Company, to recover damages for losses occasioned by the alleged negligence of the defendant and its employés, in not exercising proper care for the protection of plaintiff and his personal effects. Plea, not guilty.

1 of Allegheny county. Certiorari in the Court below to an alderman of the city of Pittsburgh in an action of debt brought by ID. Stewart and W. C. Stewart, doing business as I). Stewart & Son, against J. C. Lindsay and George B. Sterritt, doing business as Lindsay, Sterritt & Co. The alderman gave judgment for the plaintiffs for $200 and costs. The Court below, upon exceptions filed, reversed the judgment.

2 of Allegheny county. Scire facias, sur mechanic’s lien, filed November 20, 1875, by Andrew Glockner against Hugh Richardson, owner, and Sarah Richardson, administratrix of Hugh Richardson, deceased, and Hillingass and Geiss, contractors.

Ejectment brought August 14, 1879, by Abner Bonner and Isabella, his wife, Jacob Frick and Mary, his wife, Henry Booher, Elizabeth Booher, Clara Booher, and Clement Booher, heirs-at-law of Henry Helsel, against Emmanuel Rowdybush, for a tract of land in Armstrong county. The facts of the case, as they appeared at the trial before Neale, P. J., were as follows : The plaintiffs were the heirs-at-law of Henry Helsel, who died seized of the land in dispute.

Assumpsit by James Harrison and Jolin Harrison co-partners, trading as Harrison & Bro., against The County of Armstrong, to recover the sum of $2,229 71 for extra work and material furnished in erecting.a jail and jailer’s bouse under a contract.

Appeal to the Common Pleas by John McGlauglilin, garnishee of Beuben Logue, from a judgment of W. B. Dailey, a justice of the peace, in favor of Philip Shaffer, agent for Margaret Shaffer, his wife, for the sum of $299 and costs. Plea, nulla bona.

<p>Error to the Court of Common Pleas of Armstrong Qounty.</p> <p>Appeal of R. R. Wilkins and S. H. Bailey, overseers of the poor of Parker City, from a judgment of a justice of the peace in favor of John Shaffer for $65, alleged to be due the said Shaffer for the board of a pauper.</p> <p>The facts as they appeared at the trial before Neale, P. J., were as follows: On August 4, 1879, R. R. Wilkins and S. H. Bailey, overseers of the poor of Parker City, entered into a contract with John Shaffer, a farmer, by which he undertook to board and keep a Swedish woman named Christina Erickson, who had been duly declared a pauper by two justices of the peace of the said city. Shaffer was to receive $2 50 a week for her board; $1 50 in cash, and one dollar to be credited by the overseers on a note for $100 which they held against him. On the same day he took Mrs. Erickson to his farm.</p> <p>S. H. Bailey testified that in the latter part of 1879 Mrs. Erickson came to Ills house and told him that “she was able to earn her own living, and for us not to pay her board any more.”</p> <p>“In December, 1879, Mr. Shaffer came in to see me, and I notified him that we would discharge her on the 1st day of January, 1880. ... I seen him afterwards. It was a short time after the 1st of January. ... I told him that we had discharged her on the 1st of January, and would not pay him for keeping her after that time.”</p> <p>Shaffer’s evidence on this point was as follows:</p> <p>“ Q. Didn’t the overseers of Parker City give you notice * * before January, 1880, * * that they would discharge her on the 1st of January, and for you not to keep her any longer ?</p> <p>A. They told me they would not pay me any more for keeping her.</p> <p>Q. Didn’t they tell you to discharge her?</p> <p>A. No; they didn’t say. They told me they thought she was able to earn her own living, and they would not pay me any longer. . . . They always said they would not pay me any more. I said I would not keep her longer for nothing. I said I could not keep her for nothing.”</p> <p>After the 1st of January, 1880, Mrs. Erickson still continued to live with Shaffer, the overseers not taking her away or making any effort to get her work. Other evidence showed that she had been crippled by an accident, but was able at times to help Shaffer in domestic duties, and that she was the only other member of his household.</p> <p>Mrs. Stahl, a neighbor, testified that she frequently complained of pains in her hand and hip.</p> <p>“Q. If you wanted a woman to work for you about your house at such work as she would be able to do, would she be worth her keeping ?</p> <p>A. No, sir.”</p> <p>In February of 1880 the overseers sent the regular physician for the poor to. visit her, to ascertain her condition.</p> <p>In December, 1880, Shaffer recovered judgment before a justice of the peace against the overseers for $65, the amount claimed to be due for board from November, 1879, up to the date of suit.</p> <p>The plaintiff submitted, inter alia, the following points:</p> <p>“2. That the notice alleged to have been given to plaintig on or about the 1st of January, 1880, did not rescind the contract, if the jury believe that the plaintiff at the same time gave notice to the overseers to come and take her away, and that he would not keep her without being paid, and if they believe the pauper was not in condition then to be removed.”</p> <p>Answer. Affirmed. (Third assignment of error.)</p> <p>“3. That it was the duty of the overseers to provide for the said pauper necessary means of subsistence, and if the plaintiff kept her after giving notice that he would not keep her without being paid, the said overseers are liable to him for maintenance, even if the original contract was rescinded.”</p> <p>Answer. That is affirmed as qualified in the general charge. (Fourth assignment of error.)</p> <p>“4. That it was the duty of the overseers to provide work for the said pauper as well as maintenance, and if they believed she was able to earn her own living, it was their duty to contract with some person for the employment of the pauper, and to place her with such person for employment.”</p> <p>Answer. That is affirmed as qualified in the general charge. (Fifth assignment of error.)</p> <p>The Court charged inter alia as follows:</p> <p>“The Act of Assembly does not, in this kind of cases, appear to provide any special method for discharging a pauper from the care or custody of the overseers, but it is a general rule that the power that confers a duty can discharge that duty; so it would seem reasonable that [if the overseers of the poor had gone to the justice who had committed her to their custody or keeping, and had made a statement on the evidence they received that the woman was in good health and was able to support herself, we think that would have discharged her from their custody. I do not know that that method is usually pursued, but it would seem to me that would be the only way to obtain a legal discharge,] because when they are charged with a duty by a particular authority, they cannot themselves discharge that duty, they cannot of their own act do so. They might say as soon as a person has been committed to them by the act of a justice of the peace, ‘why, we discharge her; we won’t take care of her.’ There would not be any validity in that. If she were still a pauper and requiring their attention, she could go at once and prosecute them for misdemeanor in office, if they failed to take her. She could lay her complaint with the justice of the peace for such' proceeding, and they would then have to show that she was well and competent to make her own living, and was not a charge upon them, which it would be difficult to maintain, if it were done immediately after she was made a charge; because here the justice of the peace has declared that she should be taken care of by the overseers of the poor. [They cannot, by their own act, we think, sufficiently discharge any one] from their custody, [because they can only do so when there is no liability for support; but so long as any liability for support exists, they are bound to furnish that support,;] but it is another question in this case.</p> <p>[The contract was entered into, and they went and told him that they would not carry out the contract any longer than the first of January. If he accepted their proposition, they could have rescinded that contract,] and he might have said to them, (and this is for you,) to take the pauper away. [The pauper was there on his hands and they should have seen that the pauper was taken away from him, or else they should have had an understanding upon what terms he would continue to keep her.] If he would agree to keep her for nothing, that would be the end of it. The pauper was there, declared to be a pauper and [they ought to have done something, or seen that something was done with her.] If they did not find work for her, and notified him not to provide for her, was she to be cast upon the streets if he turned her out of doors ? You are to consider whether he could have turned her out of doors at such time, taking into consideration all the evidence that; you have bearing upon the fact of her condition, her disabilities of various kinds that have been shown and proved before you, whether he could, as a'man having any feelings of humanity in him, have turned her out of doors. If she was able to go, the proper course to have pursued would have been to have done so.</p> <p>We have something somewhat analagous to this. I mean where a landlord gives notice on the first day of January to the tenant that he cannot remain in his house any longer than the first day of April. There is a duty devolving upon the landlord and upon the tenant. The tenant, in pursuance of the notice to go out, ought to leave the premises; if he don’t do so, and the landlord would obtain possession, he must go and see that he does leave the premises; but if he remains and the landlord does not do anything to get possession of the premises, why, he is charged only with the rent of the premises that he is occupying, and the landlord, assenting to it, is held in law to be continuing the lease to the tenant for another year, so if he accepts the lease he allows the tenant to remain there. So here the. defendants allow this person to remain on the premises of Mr. Shaffer. They allowed him to continue keeping her, and it becomes now a question of whether there was a continuation of their duty in the first place to take charge of her, it will be for you to determine under all the evidence; and if so they are bound and should pay Mr. Shaffer.</p> <p>If the evidence satisfies you that .the woman’s work and labor were worth any wages, why, they are entitled to the benefit of it. The overseers of the poor are entitled to the benefit of her wages, and if they exceed the value of what her keeping would be, the ■ overseers would not be liable on this suit, but if they are not, then it becomes a question for you.</p> <p>If the overseers failed to take her away,, and it was their duty to do so, they then would be liable for the time they allowed this woman to remain in the care and under the ■ charge of Mr. Shaffer. They seem to have recognized the fact that she was there from the evidence that you. have in reference to the visit made by Doctor Groheen, who went there to see her under the direction of the overseers of Parker City. They seem to have had knowledge that she was remaining there. If they were desirous of having this matter entirely disposed of, they should have seen to it at the time, and had her removed, if they desired to change the place where she would be, and provided her a place where she could earn her own living, and released them in that way. But if she was working and doing labor at the house of Mr. Shaffer, and it was of the value of her keeping, after the first of January, why, the plaintiff could not recover, if she was earning her own keeping and making wages; but if she was a care and a charge upon Mr. Shaffer, and you find it was the duty of the overseers to have provided for her under the evidence in the case and what instruction we have given you bearing upon the subject, then it will be for you to say how much he is entitled to after the first day of January, 1880, because tlie whole question is settled up to the first of January, 1S80.”</p> <p>December 23, 1881. Verdict for plaintiff for $182 75, and subsequently judgment thereon.</p> <p>The defendant thereupon took a writ of error assigning for error the affirmance of the plaintiff’s points as above, and the portions of the charge within brackets.</p> <p>It is the universal practice of overseers of their own motion to discharge paupers.</p> <p>The right of Shaffer to recover anything from the overseers for the keeping of this pauper arose only from express contract. The terms of the contract are not disputed. He was to keep the pauper at $2 50 per week. He was not bound to keep her any particular number of weeks. He could have, at the end of any week, refused to keep her longer, and the overseers, at the end of any week, could have refused to pay him for any longer time, and that is what they did do when they determined that she no longer required maintenance from them. They gave him notice that they would discharge her on January 1,1880, and when that time came they did discharge her, and from that time were no longer liable to Shaffer for what he might furnish her. The necessities of the pauper would not have continued the contract, so far as Shaffer is concerned. If they were in error in supposing that her physical condition was better than it was, and. acted accordingly, she alone, and not Shaffer, could have taken advantage of their error, and forced them by indictment or a new order to continue to furnish her maintenance.</p> <p>We think that it was manifest error for the Court to charge that the overseers cannot refuse to maintain a pauper until the order of relief shall have been rescinded or revoked by the justices by whom it had been issued.</p> <p>The overseers must pay for attention given for a needy person in extremities, even though at the time no order for relief had been made.</p> <p>Directors v. Worthington, 2 Wright, 162.</p> <p>The necessities of the pauper imposed upon the district the .legal duty to extend relief, and it is bound to pay a reasonable compensation to any one whom it has knowingly permitted to be at the trouble and expense of keeping her.</p>

Appeal of the overseers of East Franklin township from an order of Joseph S. Smith and Thomas B. Faulk, two justices, directing the removal of Sarah Jane Neal from Washington township to East Franklin township, Armstrong county. On the hearing in the Court below before Neale, P. J., the following facts appeared: Sarah Jane Neal was born in East Franklin township, Armstrong county, September 6, 1847, on a farm on which her father, John Neal, had lived for many years.

Appeal of Ellen Moore, widow, from a decree of the Orphans’ Court of Berks County, confirming an auditor’s report upon the account of Isaac Slichter, executor of the last will and testament of John T. Moore, deceased. The account of the executor was referred to B. F. Y. Shearer, as auditor, to make distribution and report.

<p>1. Error does not lie to a judgment on a case stated unless it be agreed that it shall be subject to a writ of error.</p> <p>2. When a case stated contains no agreement that it shall be subject to a writ of error, but contains an agreement that “the case be stated-for the opinion of the Court in the nature of a special verdict,” the latter words do not change the nature of the ease submitted so as to permit a writ of error to lie to the judgment.</p>

Ejectment by William Huselton and Mary Elizabeth Huselton, his wife, in right of said wife ; James R. Beers and Susan R. Beers, his wife, in right of said wife ; and Anna Leonora Welsh against Henry M. Weisman, to recover one half of a tract of land situate in Butler township, Butler county, Pennsylvania.

Ejectment by James Kerr against Milton Hutchinson for a lot of ground situated in Anandale in the same county. Both of the parties claimed through James Black. The defendant was a tenant of William G. Smith, who purchased from Black January 24, 1880.

Debt by the borough of Millerstown against S. I. McKee, Z. Double, and J. B. Orbison, on a bond conditioned for the collection and payment to the borough treasurer by S. I. McKee, of the taxes assessed for the year 1878. The following facts appeared at the trial before Mc-Junkin, P. J.: On June 3, 1878, the council of the borough of Millerstown, Butler county, levied and assessed a tax of $8,160, and appointed S. I. McKee to collect the same.

<p>Error to Court of Common Pleas of Butler County.</p> <p>Assumpsit by Samuel L. Riddle, Sr., against Josiah M. Thompson, Solomon R. Thompson, Allen Wilson, and John C. Martin.</p> <p>Upon the trial in the Court below, before Brepin, J., the following facts appeared:</p> <p>Col. John M. Thompson, of Butler, Pa., was appointed the committee of Henry Shakley, an habitual drunkard, in proceedings instituted for that purpose in the year 1875, and was required to give bond with security approved by the Court. He gave a judgment in favor of Daniel Fiedler and the defendants, who were the parties whom the Court approved as security on his bond, in the sum of fifteen thousand dollars, for their protection. Subsequently, Dr. Stephen Bredin was appointed the successor of Thompson in the trust. In order to pay the balance due, Thompson obtained from Samuel L. Riddle, through his son and agent, W. H. H. Riddle, Esq., a loan of $15,000.</p> <p>As security for this loan, Thompson applied to and received from the defendants an assignment in blank of the judgment confessed in their favor, together with an agreement to pay the same, which set forth: “For value received'we assign this judgment to and</p> <p>guarantee payment thereof in one year from this date.”</p> <p>Thompson went to Riddle’s office, and in his presence, and in the absence of the defendants, filled up the paper, inserting the date, “January 8, 1878,” and the name of the assignee, “ Samuel L. Riddle, Sr.”</p> <p>Biddle took from Thompson his written statement that he had no defense to the judgment, and that it was a lien against- certain real estate. A verbal agreement was at the same time made between Thompson and Riddle, that one half of the sum loaned was to be paid in one year and one half in two years from the date of the Joan, to wit: January 8,1878, and that the judgment should bear interest from the date of the asssignment.</p> <p>On April 22, 1879, the following agreement between John M. Thompson and W. H. H. Riddle, attorney for the plaintiff, was filed of record upon the judgment:'</p> <p>“It is agreed that the prothonotary of said court enter an amicable scire facias upon the above judgment with the same effect as if a scire facias to revive the same had been regularly issued, served personally on the defendant by the sheriff of said county, and duly so returned, and that a judgment be entered thereon in favor of the plaintiff, and against the defendant, for the sum of $16,160, the one half due January 8, 1879, and the remainder January 8, 1880, amount of debt, interest, and cost now due on the original judgment.</p> <p>Dated April 22, 1879.”</p> <p>Executions "were issued on the judgment, and all the real estate of Thompson, the defendant therein, sold, and the sum of $7,413 11 realized. Before the sale, notice in writing was served on the defendants in this case of the time and place of sale. This suit was then brought to recover the balance.</p> <p>The Court charged the jury, inter alia, as follows :</p> <p>“Then the only other question in the case is whether Mr. Riddle, by agreeing to give Thompson time for the payment of this judgment without the consent of these defendants, who assigned him the judgment, has thereby discharged and released the defendants from their liability on this paper. That is a question of law that the Court can reserve to be argued at length, and take time to fully consider it. Therefore, for the time being, not, of course, intimating how it may be decided finally, we merely instruct the jury on it, and afterwards give judgment whichever way we think the authorities and law may lead. We instruct the jury, for the time being, as far as the case is now before them, that the giving of time does not release the defendants, and we reserve that question ; and if we are of opinion hereafter that Riddle, by giving that time, did release the defendants, we can enter judgment in that way without calling a new jury. That is the reason why we want to reserve the question, and then it can be settled without calling a new jury without putting the parties to the expense of a new trial, and it can go to the-Supreme Court at once. That is the only other question in the case.”</p> <p>October 16, 1882. Verdict for plaintiff for $10,208 30.</p> <p>May 21, 1883. The Court filed an opinion upon the questions reserved, inter alia, as follows:</p> <p>“The third defense is that the extension of time released defendants from their liability as guarantors. The facts in regard to the extension were undisputed, and we reserved that question. We have made a careful examination of the authorities, and while, if not ‘ read between the lines,’ some of the decisions may seen irreconcilable and contradictory, we think the principles that govern are well settled, and have no doubt that, by the extension of time, the defendants were released from their liability as guarantors.</p> <p>“Though defendants were guarantors, their guaranty was a special one. Their contract was to pay in one year if Thompson did not. Riddle was not found to use ordinary diligence, or, indeed, to make any effort to collect the judgment in the meantime, but could at once at the end of the year sue the defendants.</p> <p>“In such a case, ‘a guarantor is a species of surety, and is discharged from his liability if the creditor, by a subsequent valid contract, give time to the principal.’ Campbell v. Baker, 10 Wright, 243.</p> <p>“This decision, which has never been overruled but frequently quoted by the Supreme Court and its authority recognized, would seem authority sufficient on this point, but as there seems to be some confusion with other cases, we quote from Talmage v. Burlingame, 9 Barr, 24.</p> <p>“ ‘The truth is the contract of the surety, is with the creditor and not with the debtor . . . The most familiar instances are furnished by indorsements of negotiable instruments and guaranty of bonds and other choses in action, assigned or transferred by the guarantors. No one has ever thought of calling the validity of these contracts into question, nor has it ever been doubted that those entering into them are entitled to the advantage of every equity ordinarily attendant upon suretyship.’</p> <p>“For all practical purposes, the guarantors, in name the defendants, stand in the position of sureties, and must have the privileges as well as be subject to the burdens of the position they assumed by assigning and guaranteeing the payment of the judgment within a definite time.</p> <p>“In the case of Clippinger v. Creps, 2 Watts, 48, Creps accepted a confession of judgment from Cring, the principal debtor, with a stay of execution for one year, which Cring was not entitled to claim without entering security therefor, by reason of his real estate being incumbered by liens, and it was held that Clippinger, the surety of Cring in the note, was discharged, the Supreme Court saying: ‘ If a creditor, by any contract which can be enforced against him at law or In equity, gives time to the debtor, he discharges the sureties ; ’ and again they say the surety stands upon his contract, and is discharged from all obligation if any alteration is made in it without his consent, even where the arrangement so made is for his benefit. In that case, there was no allegation that the creditor received anything, or that the debtor agreed to do or pay anything for the extension granted. Indeed, it seems to have been rather a case of mutual mistake as to debtors’ right to a stay on the judgment. But however that may be, the creditor, as in this case, tied his hands by a valid contract, one he could not recede from, one that could be enforced against him, one in which the law implies a consideration, and to which it holds him, and the result was the same as though a valuable consideration had been paid as agreed on for granting the stay. '</p> <p>“ The judgment on the Sci. Fa. in this case is a judgment of the Court. The law makes it the duty of the prothonotary to enter such a judgment with stay of execution as agreed on by the parties; the plaintiff having by his attorney accepted the judgment, could not disregard it or treat the stay or extension of time as though no part of it and of no validity. By this act, he forever deprived himself of the power to restore defendants to the position they occupied in regard to the judgment at the time of their assignment of it to him ; he has interfered with their rights against the debtor and has released them from their engagement' to him as guarantors. When we say that the law implies a consideration in a case such as this, we do not wish to be understood as holding that there was not a consideration in fact. While Riddle had the right to proceed to collect the judgment at once, Thompson had the right to pay the same at any time and stop the running of the interest thereon. Riddle, on the one hand, waived his right to proceed. Thompson, on the other, waived his right to pay. We have no doubt that such mutual promises and waivers make a good consideration in law. The last decade has afforded many instances where money-lenders have been anxious to induce their debtors to make just such contracts, when the legal rate of interest was higher than that obtainable by investment in other good securities. For what is a sufficient consideration to support a contract, see Hind v. Holdship, 2 Watts, 105.</p> <p>“In coming to our conclusion that defendants are discharged, we have not noticed the fact that Thompson verbally agreed to pay an attorney’s commission for collection, and base nothing thereon, as the question whether it affected the contract for extension was not submitted to the jury.</p> <p>“Nor have we thought it necessary to rest anything on the fact that Riddle, in the revival of the judgment, undertook to decide when interest commenced to run on the judgment, and calculated interest from the delivery of the paper of guaranty, January 9, A. I). 1878.</p> <p>“The indemnity judgment did not on its face bear interest. Whether tine default having occurred before its entry, it would carry interest from that date, or only from the time of proceedings to collect, or whether Riddle could claim any interest from the guarantors, their guarantee saying nothing about interest until the expiration of the year, are questions that might be material and important. We can see no good reason why the date of delivery of the guaranty should be taken as the proper date from which interest should be charged on the judgment. An agreement between the assignee and debtor that interest should be paid in the meantime on a judgment not bearing interest, or an agreement by which they changed the date from which interest would lawfully run, might be under the authorities such an alteration of the contract as -would release the sureties. However that may be, we are clear that the agreement to extend the time made when the money was advanced, and afterwards embodied in the judgment on the amicable Scire Facias, on the 22d of April, A. X>. 1879, released and discharged Josiah M. Thompson, Solomon R. Thompson, and John C. Martin, the defendants, served, from their contract as guarantors with Riddle, and that he has no recourse against them. We do therefore enter judgment in favor of the defendants non obstante verdicto, May 21, 1883.”</p> <p>Plaintiff then took out a writ of error, and assigned the following errors:</p> <p>The Court erred in entering judgment for the plaintiff 11 non obstante ver dicto” on the reserved question of law, viz: Did Riddle by giving Thompson time, or extending the time of payment of the judgment, release the guarantors of the judgment, (the defendants in this case.)</p> <p>The Court erred in holding that the assignment of the j udgment by defendants in this case to the plaintiff was not .a guaranty, but created the relation of surety.</p> <p>The Court erred in not holding the assignment and guaranty sued on was a guaranty, and binding on defendants, and that the act of the plaintiff in extending the time did no injury to the defendants and that they are still liable.</p> <p>The Court erred in entering judgment for the defendants on the reserved questions.</p> <p>The paper sued on was a guaranty. It was a collateral agreement that the judgment was valid and binding, and that if the defendant did not pay it, the guarantors would.. If the guarantors are not injured by the extension of the time of payment, they are not discharged from liability : Follmer v. Dale, 9 Barr, 83 ; 4 Greenl., 521 ; 8 Conn., 426 ; 46 Barb., 194 ; 45 Penna. St., 186 ; 64 Id., 242 ; 69 Id., 311 ; 77Id., 143 : 79 Id., 436 ; 59 Id., 95.</p> <p>The agreement to extend the time was without consideration ; and even if the defendants Avere sureties, they are not released: 35 Penna. St., 492; 36 Id., 519 ; 73 Id., 182 ; 3 Id., 437 ; 59 Id., 351; 40Id., 146 ; Chitty on Confer., 421; 10 Cal., 419 ; 30 Geor., 249 ; 8 Blatchf., 190 ; 6 Ind.. 113, 461; 16 Me., 72; 10 N. EL, 162; 13 Vt., 353; 14 Miss., 24; 5 Id., 684; 8 Mo., 49, 316; 4 Blatchf., 241; 5 Id., 367 ; 13 Ohio, 84 ; 17 Miss., 470 ; 7 B. Mon., (Ky.,) 217; 31 Mo., 459 ; 2 Paige, 497 ; 2 Johns., 554 ; 1 Bland, (Md.,) 528 ; 4 Band, (Va.,) 103 ; 10 Yerger, (Tenn.,) 362 ; 10 Paige, 76 ; 36 Penna., 517 ; 46 Barb., 194. '</p> <p>The language of the instrument sued on shows that the responsibility was to be immediate. The defendánts Avere, therefore, sureties : 11 W. N. C., 392 ; 10 Wr., 243 ; 2 P. F. Sm„ 440 ; 29 Id., 468 ; 1 Phila., 70 ; 1 Miles, 276 ; 1 Gr., 261; 1 Jones, 482 ; 13 Wr., 259 ; 21 P. F. Sm., 139 ; 4 Harris, 9 ; 9 Casey, 111.</p> <p>By an extension of time without his consent, the contract of the surety is absolutely broken.</p> <p>Changing the date of interest from parol to matter of record and fixing the liability absolutely instead of conditionally, constitute a sufficient consideration for extending the time : Clippinger v. Creps, 2 Watts, 48.</p>

Case by William Barnes against Charles F. Berwind and Allison White, surviving partners of Berwind, White & Co. Upon the trial in the Court below before Okyis, J., the following facts appeared: On May 10, 1873, Jesse Diggins agreed, by contract in writing, to sell and release unto J. A. Gf.

<p>Error to tbe Common Pleas of Clearfield County.</p> <p>Assumpsit by W. V. Wrigbt and William Porter, administrators of the estate of John W. Wright, deceased, against George Churchman and Caleb Churchman, executors of the last will.and testament of George W. Churchman, deceased, to recover one half the value of certain timber cut upon the common property of Wright and Churchman in Clearfield county.</p> <p>At the trial before Orvis, A. L. J., November 14,1882, the plaintiff gave evidence of the following facts:</p> <p>On December 6, 1866, Thomas Henderson and others Sold to George W. Churchman and A. K. Wright, W. V. Wright, and J. W. Wright about five hundred and fifty acres of timber land in Clearfield county, which they held as tenants in common, Churchman having one-half interterest and the Wrights one-half interest therein. At the time the suit was brought, the Wright interest was vested in W. V. Wright and the heirs of his brother, J. W. Wright. George W. Churchman died before suit was brought, leaving a will of which he appointed George Churchman and Caleb Churchman his executors, and in which, after making disposition of other real estate than the Clearfield land, he devised as follows: “I will all my other real estate and personal property to be sold whenever my executors may think it will bring its real value.”</p> <p>Before Churchman’s death, the land was used ‘ ‘ for taking off square timber.” After his death, the executors used the land just as before. In 1874, George and Caleb Churchman rendered an account to the Wrights, showing a balance due to the Wrights of $4,283 95. It was headed “ 0. and G. Churchman, executors,” and was in the handwriting of George Churchman.</p> <p>Five rafts were made off this land in the winter of 1874-5. Churchman took possession of this timber and never rendered any account of it. He made an agreement with one Kline to take out the timber for 1875.</p> <p>The defendants offered in evidence the will of George W. Churchman, but no further testimony.</p> <p>The Court charged the jury as follows :</p> <p>“This is an action brought by W. Y. Wright and William Porter, the administrators of J. W. Wright, deceased, against the executors of George W. Churchman, deceased, to recover a balance alleged to be due by that estate to the plaintiffs. [There is no question of fact in dispute in the case. The plaintiffs’ claim is admitted by the defendants to be correct, but the question which arises in the case is a question of law for the Court to decide, which is whether or not the executors of George W. Churchman, deceased, whether the estate of the deceased is liable for this claim, or whether George Churchman and Caleb Churchman are liable individually, and not as executors of George W. Churchman, deceased. That is the real question in this case, and for the purpose of this suit we will instruct you, gentlemen of the jury, to find for the plaintiffs the fact that this land referred to in this suit, having been purchased for lumbering purposes before the death of George W. Churchman, although not operated until after the death of George W. Churchman by his executors, the estate is bound by tneir acts and the Wrights would be entitled to recover the amount you find due under all the evidence in the case, and your verdict should be for the plaintiffs for that amount, with interest from the time it was due.]”</p> <p>Yerdict for plaintiffs for $11,771 69, and judgment thereon.</p> <p>The defendants thereupon took this writ, assigning for error the portion of the charge in brackets above, and the action of the Court in not submitting to the jury the question of fact as to how much, if anything, was due to the plaintiffs from the defendants upon the evidence in the case.</p> <p>The will of George W. Churchman gave his executors authority to sell the lands in Clearfield county, but no authority to buy from the Wrights the interest of the Wrights in the timber cut upon the land and delivered by the Wrights to the plaintiffs in error, and charge the estate of George W. Churchman, deceased, with the value of that timber so delivered. The plaintiffs in error, who are two of the heirs of G. W. Churchman, deceased, might act individually or as agents for the Wrights, who are their co-tenants in common, but cannot bind the estáte of George W. Churchman, because there is no power in the will from which such an authority could be implied: Brush v. Ware, 15 Peters, 111; Williams on Executors, 1, 717, 6th Am. Ed.</p> <p>Unless the executor is authorized by the will or statute, he can do nothing with regard to testator’s real estate ; nor can he, unless so authorized, do any act in respect to the personal estate to take the same out of the ordinary course of distribution; Chew Chew, 4 Casey, 17; Boss v. Barclay, 6 H., 179; Waters v. Margerum, 10 Sm., 39; Oeslager v. Fisher, 2 Barr, 467.</p> <p>When a will contains an absolute direction to executors to sell, it vests the legal estate in them, mrtute officio, and so long as they remain executors, they can deal with it in no other capacity but as executors.</p> <p>We contend that under the will the executors had power to deal with the timber as they did, and were liable to account to their co-tenants as executors and not as individuals, because</p> <p>First. The will, by its express direction, works conversion of the real estate into personalty.</p> <p>Secondly. It was manifestly to the interest of the estate that this timber should be cut and sold.</p> <p>Thirdly. This will is equivalent to a devise to the executors of the property, real and personal, for the purpose of sale and conveyance: Shippen’s Heirs v. Clapp, 4 Casey, 265.</p> <p>It broke the descent, and vests the legal estate in the executors: Miller v. Meetch, 8 Barr, 425; Allison n. Wilson, 13 S. & B., 332; Morrow v. Brenizer, 2 B., 185; Allison v. Knrtz, 2 Watts, 185 ; Dundas’ Appeal, 14 Sm., 330.</p> <p>The argument for defendants in error seeks to establish the fact that the power given to the executors of G. W. Churchman worked a conversion of the real estate, and that they could deal with it in no other way than as executors. That there was a conversion does not help the casé of the defendants in error, for it was only Churchman’s interest which was converted, not the Wrights’. To the Wrights, they are accountable as agents; to the Churchman heirs, they are accountable as executors : Seip v. Drach, 2 Harris, 352.</p>

Appeal of A. Douden from the decree of the Court of Common Pleas of Dauphin County, confirming the report of an auditor and directing the assignee of John P. Woland and wife to pay to the Mifflintown and Patterson Building and Loan Association certain moneys. On the 20th of February, A. D. 1878, John P. Woland and Lydia B., his wife, made an assignment for benefit of creditors to John K. McGann.

<p>A owned a lot of ground subject to a mortgage in favor of C, and sold part of the lot to D, who agreed to pay the mortgage as part of his purchase money. Afterwards A sold the remaining part of the lot to E, who retained $400 of the purchase money to protect himself from said mortgage, and agreed to pay the same to A upon satisfaction thereof. C proceeded to foreclose the said mortgage, and upon the day appointed for sale, E paid the mortgage and costs, being more than $400, to protect his property from sale. O’s attorney, without E’s direction or authority, assigned the judgment and mortgage to E, assignee of A’s husband, for the benefit of creditors. After frequent requests, D paid to E the amount due upon this judgment and mortgage, and they were satisfied of record. The assignment and satisfaction were made without the knowledge of A, who immediately upon learning of them brought suit against E for the $400 retained by him.</p> <p>ileld that E was entitled to protect his property by such payment, and that, as he had given no directions that the mortgage and judgment should be assigned instead of satisfied, the payment was a complete defense.</p>

Appeal of the Erie and Pittsburgh Railroad Company from a decree of the Court of Common Pleas of Erie County overruling exceptions to and confirming the report of a master. Bill in equity filed by William Gibson against the Erie and Pittsburgh Railroad Company to compel the execution of a good and valid deed for certain land.

Case by Ruth Ann Allen against the Pennsylvania Company to recover damages for personal injuries alleged to have' been caused by the negligence of the employés of the defendant. Upon the trial before Galbraith, P. J., the plaintiff testified, in substance, inter alia, as follows : On the morning of the 25th of April, 1877,1 went down to the water-works, picking up a little cinders. I wasn’t there very long when some one hallooed to me.

Case by Rulof Puller, Jr., against the Pennsylvania Railroad Company, to recover damages for a personal injury resulting from the alleged negligence of the company defendant.

<p>1. In 1868, G entered into an agreement for the purchase of lands, and he paid the purchase money in instalments. There was evidence that, at the time of the purchase, he said to the vendor that he wanted it for his brother J, and that at the time of the payment he said it was J’s money. The deed was made to G, but subsequently he took it back to the vendor, who destroyed it and made another to J. J entered into possession in 1869, and he testified that he retained possession for three years; that he then leased the property; that his last tenant was B; that B went in in April, 1877, but that he made him a written lease August 16, 1878, to hold possession. B, for a consideration, surrendered to the defendant whose vendor obtained the title of G at a sheriff’s sale in 1878. There was evidence that he said he was holding under G. G took part in the renting, and the lease was left in his hands. In an action of ejectment by the sheriff’s vendee of the interest of J, the Court instructed the jury that the single question was whether B was really the tenant of J at the time he delivered up the possession, and that if they found that he was not the tenant of J at the time he delivered possession to the defendant, their verdict should be for the defendant. Held, that this was error.</p> <p>2. The question of whether or not the transaction was merely a contrivance to defraud the creditors of G, and whether or not the purchase money of the land was really paid by J, and he, therefore, the equitable owner, ought to have been left to the jury.</p> <p>3. Semble that the declarations of G, that the first payment was with the money of J, were evidence as part of the res gestae.</p> <p>4. Semble that the sheriff’s sale of the title of G upon a judgment against him, under which the defendant claims, conferred no greater immunity against the effect of G’s acts and declarations than was enjoyed by G himself.</p> <p>5. The finding of the jury was for the defendant, but since that finding under the charge as to the tenancy was limited to the relation of the parties only at the time the possession was delivered to the defendant, the character of B’s previous possession was not determined, and it was not determined whether there was a bare entry or a continuing occupancy by J. It, therefore, does not appear whether or not J’s resulting trust, if it existed, was barred by the statute of limitations.</p>

<p>Error to the Court of Common Pleas of Forest County.</p> <p>Case by Hugh O’Hara and Ellen O’Hara, his wife, in right of said wife, against the Buffalo, Pittsburgh and Western Railroad Company, to recover damages for personal injuries suffered by Ellen O’Hara through the alleged negligence of the company defendant.</p> <p>The following facts appeared at the trial, March 2, 1882, before Brown, P. J.:</p> <p>On February 22, 1881, Mrs. Ellen O’Hara went from her home, in Trunkeyville, to Oil City, on one of the defendant’s passenger trains. Her husband, who was a trackman on a section of the road, had obtained for her ■ an employé’s pass through the section foreman. The pass was in the following form:</p> <p>“Pittsburgh, Titusville & Buffalo Railway. Trip Pass.</p> <p>Pass Mrs. Hugh O’Hara, on account of---, from Oil City to Trunkeyville, when countersigned by J. F. Hilliard.</p> <p>Conditioned that the person accepting this free pass assumes all risk of accident to his person or property, without claims for damages on this corporation. Good only for the person named.</p> <p>T. H. Wilson, Superintendent.”</p> <p>It was countersigned by T. F. Hilliard.</p> <p>This pass was honored by the conductor of the train on which she went to Oil City. On the afternoon of the same day, she took the regular passenger train.at Oil City to return to Trunkeyville. At President station, thirteen miles above Oil City, the regular train, on which Mrs. O’Hara was riding, was run into by a special train, the engine of which plunged into the rear coach, where Mrs. O’Hara was seated, and by the escaping steam and the shock of the concussion, she, among other passengers, was injured. The evidence showed that the special train had been chartered to take a funeral party from Oil City to Tionesta, and that it left Oil City after the express, or regular train, which was five minutes slow. A rule of the company provided that every following train should keep at least five minutes behind the time of the leading train. A passenger testified that at curves in the river he saw, a number of times, the express train ahead. An engineer of a standing train testified that he threw up his arms to warn the special train to go slow, and that his signal was disregarded.</p> <p>The plaintiff presented the following points :</p> <p>1. “If the jury believe from the evidence that the plaintiff, Mrs. O’Hara, was injured while riding as a passenger on defendants’ road, by reason of a collision caused by the negligence of the defendant company or its servants, she is entitled to recover damages sufficient to compensate her for the privation and inconvenience she has been subjected to, and for the pain and suffering, bodily and mental, she has already experienced, and is likely yet to experience during the remainder of her life.” Affirmed.</p> <p>(First assignment of error.)</p> <p>2. “The release of damages contained in the pass given in evidence will not relieve the defendant company from liability for damages occasioned by the negligence of the company or its agents.” Affirmed.</p> <p>(Second assignment of error.)</p> <p>The defendant presented, inter alia, the following points</p> <p>1. “It being the uncontroverted evidence that Mrs. O’Hara was not an employé of the defendant, and that she was traveling upon defendant’s railroad upon a free pass, for which she had given no consideration, such pass having been issued in violation of law, of which the said plaintiff was presumed to have notice, gave her no right to a. passage upon the train, and in the eye of the law she was a trespasser thereon, and no recovery can be had in this action.” Refused.</p> <p>(Third assignment of error.)</p> <p>4. “That if Mrs. O’Hara accepted and rode upon a free pass of the description given to employés engaged on and about defendant’s railway, and upon such pass was printed the condition that the person using the same assumed all risk of accident and damage to person or property, the plaintiff cannot recover.” Refused.</p> <p>(Sixth assignment of error.)</p> <p>The Court charged, inter alia, as follows: ‘ ‘ The defendant claims that the plaintiff cannot maintain this suit because she was not an employé of the defendant, and was traveling on a free pass, issued in violation of law. ... We say to you that this is not a defense. Even if. we adopt the presumption that Mrs. O’Hara was bound to know the law, she held a free pass signed by the superintendent of the road, countersigned by the foreman of the track section. The conductor of the train, whose peculiar duty is to determine the right of a passenger on his train, recognized her right to a seat under the pass, and having done so, it is not for the defendant to urge that the pass was issued in violation of law. Defendant also claims that as Mrs. O’Hara accepted a pass of the kind given to employés, she occupied the position of an employé so far as the cause of action is concerned, and cannot recover for the injury occasioned by the fault of another employé of the road, in the absence of evidence showing the neglect of the superintending officer or officers of the defendant. As to this, we say to you that Mrs. O’Hara is not, so far as the evidence shows, in the position of an employé of the defendant, and her right to recover is not to be determined by the same rules as that of an employé. W e think, and so instruct you, that Mrs. O’Hara, for anything that appears in the evidence, is to be regarded as a passenger, with the right to recover damages for injuries occasioned by the neglect of the defendant, or its agents or employés, acting within the lines of their general employment, and that, whether the conductor of a special train was or was not managing his train in defiance of the rules of the road, the defendant is liable for the injury resulting from his negligence ; and we further say to you that the conditions on which the pass in this instance was given and accepted do not exempt the defendant from liability for injuries sustained by the plaintiff in consequence of the neglect or carelessness of the conductor of the special train.”</p> <p>March 2, 1882. Verdict for plaintiff for $700, upon which judgment was afterward entered.</p> <p>The defendants thereupon took this writ, assigning for error the answers to the plaintiff’s and defendant’s respective points and the portion of the charge quoted above.</p> <p>Mrs. O’ Hara not being an employé and riding upon a pass illegally issued to her, such pass gave her no right upon the train, and she was in the position of a trespasser thereon and could not recover: Constitution of Pennsylvania, P. L., 1874, 25. Act of 1874, P. L., 289. Oreen’s Brices Ultra Vires, 362. Allegheny Valley railroad v. McLain, 10 Nor., 442. Huff v. Allegheny Valley railroad., Ibid., 458.</p> <p>The plaintiff traveling as and exercising and claiming the rights of an employé on the train is estopped from afterwards claiming that she was a regular passenger: Hannels v. Fitch, 8 Barr, 495.- French ■». Mehan, 6 Smith, 286. Pringle v. Pringle, 9 Ibid., 281. Rankin v. Simpson, 19 Pa. St. 471. The pass and the conditions together amounted simply to permission on the part of agents without authority to ride on the cars at her own risk.</p> <p>The New York and New Jersey authorities go much further than we ask here. They decide broadly that a gratuitous passenger can limit his liability to any extent: Perkins ¶. New York Central R. R. Co., 24 N. Y., 196. Wells v. New York Central R. R. Co., 24 Ibid., 181. Kinney v. Central R. R. Co., 3 Yroom, (N. J.,) 407. Same v. same, Ibid., 413.</p> <p>It is true that in Penn’a R. R. Co. v. Henderson, 51 Penn. St., 315, this Court seems to hold a contrary opinion, but it will be remembered that in the case last mentioned it was held that the plaintiff below was not a gratuitous passenger, but was compelled to go on the train to take care of his cattle, and paid his own fare as a drover in paying the freight charged for his cattle, and that the case finally turned upon this point, although the Court indicated an opinion that even in the case of a free passenger there could be no limit to the liability of a transportation company.</p> <p>Mrs. O’Hara was not a trespasser. She bore the written permit of the highest executive officer of the road; and if the conductor, in obedience to the Constitution and statute, had chosen not to recognize it, he could not have ejected her from the train without demanding fare and giving her an opportunity to pay it: Duff v. Allegheny Yalley R. R. Co., 10 Nor. 461.</p> <p>The, release of damages printed on the pass does not operate to exempt the plaintiff in error from liability. “Common carriers cannot so limit their liability by special notice as to relieve themselves from the consequences of their own or their servants’ negligence.” American Express Co. v. The Second National Bank of Titusville, 19 Smith, 395. Empire Transportation Co. v. Wamsutta O. M. Co., 13 Id., 14. Pa. R. R. Co. v. Henderson, 1 Id., 325. Pa. R. R. Co. v. Butler, 7 Id., 335.</p> <p>The last two cases show that the rule applies to personal injuries as well as to loss of property : 2 Redfield on Railways, 227.</p>

<p>■ 1. Where a grandmother was living with her grandson, and the evidence shows that, instead of the existence of a mere family relation, the payment of board was contemplated, a reasonable amount will be allowed out of her estate for the payment of such board. ,</p> <p>2. Between parent and child living in the same family, such claim must be supported by evidence of an express contract. It is the same when one stands in loco parentis. In other cases the ordinary rule prevails, unless and until it be shown that in fact the parties were not acting on the footing of a contract.</p>

Court of Common Pleas of Greene County. Ejectment by Maria Sutton against Plioebe Bane, Elizabeth Johnson, Richard Johnson, Mary Johnson, William Johnson, and I. N. Johnson for certain rooms, being part of a hotel property situate on the north-west part of lot No. 121, in the borough of Waynesburg, in Greene county.

Debt by A. B. Miller, treasurer of the trustees of the Pennsylvania Synod, against Nathaniel Clark, Thomas Hoskinson, and Timothy W. Boss, upon a note in the following form: “500.00.

Issue directed by the Court between T. W. Myton, treasurer of Huntingdon county, for the use of H. S. Wharton’s assignees, plaintiff, and R. Bruce Petrikin, defendant, to determine how much, if anything, be due on a certain judgment of November term, 1876; issue framed as if plaintiff had declared in debt and defendant had pleaded payment with leave, &c. On the trial of the issue before Dean, P. J., the following facts appeared: In 1866, H. S. Wharton and Frank Hefright were…

Ejectment by H. C. Robinson, Bruce X. Blair, John A. Blair, Annie j. Blair, and D. Blair, guardian of Sarah Blair, against Sarah Hockenberry and Johnston Henry, to recover possession of three lots of ground situated in the borough of Orbisonia. Judgment was entered January 18, 1880, against the defendants for want of an appearance, and on J une 14, 1881, the plaintiffs were put in possession by means of a habere facias, and the writ was returned executed.

Appeal of John Zentmyer from a decree of the Common Pleas of Huntingdon County, discharging a rule to open a judgment.

E. Evans and J. B. Evans, trading as C. E. Evans & Bros., against Reese Owens to recover for goods alleged to have been sold and delivered. Upon the trial in the court below, the plaintiff called David E. Stanford, who testified inter alia in substance: I believe I am acquainted with W. E. Williams. I am acquainted to some extent with the operation of Reese Owens. I recognized W. E. Williams in 1879 as Owens’ agent there. I was subject to him in shipping some lumber of Owens.

<p>1. If the vendor at a public sale of chattels deliver an article to the purchaser, or suffer the purchaser to take possession of it voluntarily, and without requiring a compliance with the conditions of the sale, such delivery alone would pass a good title to the purchaser, and would necessarily constitute in itself a waiver of the conditions.</p> <p>2. Where, therefore, the Court charged the jury that the purchaser, in order to make out a title to the chattel, must prove an agreement between the vendor and himself to waive the giving of a note for the purchase money, in accordance with the conditions of the sale, in addition to the delivery, it was held to be error.</p>

Appeal of Henry Copenheffer, guardian of Mary Jane McCauley, from a decree of the Orphans’ Court of Lancaster Qounty dismissing exceptions to the report of an auditor. Joseph L. Detwiler died intestate in the year 1863, leaving, among other children, a minor daughter, Mary Jane Detwiler, now7 Mary Jane McCauley. On March. 19, 1866, Henry Copenheffer was appointed her guardian.

Appeal of Solomon C. Groff from a decree of the Orphans’ Court of Lancaster County, sustaining exceptions to the report of an auditor upon the account of said Solomon C. Groff as executor of the last will and testament of George Groff, deceased. The facts, as found by the auditor and the Court below, wrere as follows: George Groff died on June 8, 1880, having made Solomon C. Groff executor of his will.

Assumpsit by J. H. Wagner, J. W. Muffley, and D. F. Wagner, doing business as the Watson town Planing-Mill Company, against James B. Henderson and Rebecca Henderson, his wife. Pleas, non-assumpsit, and subsequently, by leave of Court, coverture for Rebecca Henderson.

<p>Error to Court of Common Pleas of Lawrence County.</p> <p>Ejectment by Nathan Book against Mary Book, Andrew Wells, tenant in fact, Charles Book, John Book, Dellie Book, Essie Book, minors, by John S. Connor, guardian, for a tract of land in Shenango township, Lawrence county, containing fifty acres sixty-two perches.</p> <p>Upon the trial in the Court below, the following facts appeared:</p> <p>A good title to the land in dispute was admitted in Jacob Book, through -whom both parties claim. Jacob Book lived on the land with his daughter Jemima, and on December 22, 187ñ, he and his son* Michael EL Book, executed the following instrument of writing, setting forth:</p> <p>“That the said Jacob Book, for the consideration of five dollars to him in hand paid by said M. EL Book, the receipt whereof is hereby acknowledged, and for the further consideration hereinafter mentioned, for himself, his heirs, executors, and administrators, doth covenant and agree to sell and assure unto said M. H. Book, his heirs, and assigns, all that certain tract or piece of land [describing it] it being the purpose and intent hereby to sell to said M. EL Book the residue of the tract not heretofore bargained to said Aaron Book. The said Jacob Book to retain the possession and enjoyment of said land while he lives; he to use the premises in such reasonable manner so as not to deteriorate or depreciate their value, and he to pay all taxes thereon while he so lives, and upon his death the said M. H. Book to have full and entire possession and enjoyment thereof.</p> <p>“ In further consideration whereof, the said M. H. Book hereby covenants and agrees during the next year (1876) to either build upon said land a comfortable farm dwelling-house, or repair the present dwelling-house upon the land so as to make it reasonably comfortable, and from time to time during the lifetime of said Jacob Book to keep the buildings in such repair as to make them reasonably suitable and comfortable for use, and to have the use of such timber or other materials as may be found upon the land for that purpose, and upon or after the-death of the said Jacob Book, he, the said M. H. Book, shall pay to the said Jacob’s daughter, Jemima Book, during her natural life, the sum of one hundred and fifty dollars annually, to be paid in semi-annual instalments of seventy-five dollars each, on the first days of April and October of each year, upon the first instalment to pay the proportion of said sum for the time intervening between Jacob’s death and said payment, and thereafter to pay seventy-five dollars each successive period of six months.</p> <p>“ Said EL M. Book further agrees that after the death ' of said Jacob, said Jemima, while she remains unmarried, shall have a room for her use and occupancy (but not to have the power to lease or let the same) in the dwelling upon said farm, or at his option he to provide her a room in another building upon said farm for such use and occupancy. The title to said farm, if not made to said M. EL Book in fee by said Jacob Book in his lifetime, shall be made so to him by said Jacob’s legal representatives, so as to assure to said M. EL Book, his heirs, and assigns the land and premises hereinbefore described.’’</p> <p>M. EL Book filed a petition in bankruptcy on February 26, 1877, and was adjudged a bankrupt. Nathan Book, the plaintiff, purchased the land from the assignee in bankruptcy of M. H. Book on September 25, 1877, under which he claims title.</p> <p>On 7th February, 1878, Jacob Book made an agreement with his son, Aaron Book, in regard to this land, in pursuance of which Aaron Book moved on it with his family, and lived upon it and cultivated it until his death.</p> <p>By this agreement with Aaron Book, Jacob Book made provision for the support of his daughter Jemima, and retained the use and occupancy of a part of the dwelling-house as long as he lived.</p> <p>Jacob Book died 10th June, 1881, having, on the 7th February, 1878, executed a last will and testament, by which he revoked all wills previously made, devised the land in dispute in fee simple to his son, Aaron Book.</p> <p>Aaron died intestate after the making of this will, and • a short time before the death of his father. The defendants are children and heirs-at-law of Aaron Book, and, as such, claim title to the land in dispute under the last will of Jacob Book. They have been in possession of the land since the death of Aaron and Jacob Book.</p> <p>There was evidence on the part of the plaintiff to show that Jacob Book waived the covenant to repair the house.</p> <p>The defendants submitted points of charge, which, with the answers thereto, are as follows:</p> <p>First. That the paper purporting to be a contract between Jacob Book and M. H. Book, offered in evidence by plaintiff, conveyed or gave to said M. H. Book no present or vested interest or estate in the land described in said contract, and was, therefore, void and ineffectual to give said M. H. Book any estate or interest whatever in said land.</p> <p>Second. That said contract or agreement was testamentary in its character so far as Jacob Book was concerned, and was revocable by him.</p> <p>Third. That the will of Jacob Book, offered in evidence by defendants, revoked said former will in form of a contract, and gave the land in dispute to his son Aaron Book, and defendants are entitled to hold said lands as heirs of said Aaron Book, and under the last will of Jacob Book.</p> <p>The Court in Answer: “The questions of law raised by the first, second, and third points are reserved for future consideration, and the jury instructed pro forma to return a verdict for plaintiff, and right reserved to enter judgment for defendants non obstante veredicto.”</p> <p>Fourth. If the Court be of opinion that plaintiff is entitled to recover at all, then the verdict must be conditional that the plaintiff perform all the covenants or stipulations contained in the said contract under which he claims.</p> <p>Affirmed, and jury so instructed.</p> <p>The Court thereupon charged the jury as follows:</p> <p>“This is an action of ejectment. The defendant has submitted certain propositions for instruction by the Court to the jury on questions of law that arise in the case. We dispose of the case in this way: The first, second, and third points raised are reserved by the Court for future consideration. For the present, pro forma, we instruct you that the verdict should be for the plaintiffs, reserving the right on these legal propositions so that we may hereafter, on future consideration, enter judgment, notwithstanding your verdict, for the defendants. The fourth point or proposition on part of defendant, we are asked to instruct you that the plaintiff is entitled to a verdict under the instructions of the Court that we have given you, and that verdict should be with certain conditions, and we affirm this, and say to you that there should be a conditional verdict in this case. The counsel for the plaintiffs and defendants have agreed on the conditions that shall be returned as part of your verdict under these instructions.</p> <p>“Therefore, we instruct you to return a verdict for the plaintiffs for the land described in the writ of ejectment, conditional that the said plaintiffs pay Jemima A. Book,, within three months after judgment is obtained, if so, in this case, the sum which may then be due her by the terms of the contract between Jacob Book and M. H. Book under which plaintiffs claim, and give mortgage on said premises with the accompanying bond in the penal sum of $2,000, conditioned to pay said sum when due and pay to said Jemima $75 every six months thereafter'during her natural life, said bond to be so limited that payment can be only enforced out of said premises, and to provide that any instalment can be collected if not paid when due.</p> <p>This is your verdict, and we so record it.”</p> <p>January 12, 1883, verdict for plaintiff, subject to the points reserved, upon which the Court afterwards entered judgment.</p> <p>Defendants then took out a writ of error, and assigned. as error the refusal of the Court to affirm the above points, and the entering of judgment for the plaintiff upon the points reserved.</p> <p>The agreement is testamentary in its character. It vested in M. EL Book no present interest or estate, and is revoked by the subsequent will. It shows an intention to make a disposition of property to take effect after death. This is also shown in the provision for the daughter. By retaining possession, Jacob Book retained the whole property: Silknitter’s Ap., 45 Penna.., 365; Dr usado w v. Wilde, 63 Id., 170; Caldwell ®. Pulton, 7 Casey, 479 ; Schryer’s Est., 2 Brewster, 526 ; 7 Phila., 477; Wusthoff ®. Dracourt, 3 Watts, 240 ; Wilson r>. McKeehan, 53 Penna., 79 ; Rudebaugh ®. Rudebaugh, 72 Id., 271; 3 Washb., sec. 605; 2 Blk. Com., 338, 500; 1 Redfield on Wills, 5, 170 ; Habergham ®. Vincent, 2 Ves. Jr., 204; Green ®. Proude, 1 Mod., 117; Hunt ®. Hunt, 4 N. H., 434 ; Morrell v. Dickey, 1 Johns. Oh., 153 ; Turner ®. Scott., 1 P. P. Sm., 126 ; 2 Blk. Com., 165,167; Rowan’s Ap., 1 Casey, 292 ; Frederick’s Ap., 2 P. P. Sm., 338; Schad’s Ap., 7 Norris, 111; Prew ®. Clark, 30 P. P. Sm., 170; 13 W. N. C., 401.</p> <p>The writing is in the form of a contract containing covenants and agreements by both parties, whereby each became bound. These are to take effect not upon the death of Jacob Book, but immediately upon the signature of the writing, and are not revocable at the pleasure of either party. Revocability is the essence of a testament: 1 Jarmen, 11; Mack & Person’s Ap., 18 P. P. Sm., 231. A will is unipartite, but this writing is bipartite, and hence not revocable at the will of one only: Johnson ®. McCue, 10 Casey, 180. The rights under it vested at once, although the full enjoyment of some were postponed. It is not necessary for a deed to convey an immediate interest in possession: Habergham ®. Vincent, 2 Ves. Jr., 230; Meek’s Ap., 1 Out., 313. In Turner®. Scott, 1 P. P. Sm., 126 ; -Perry ». Scott, Id., 119, and Frederick’s Ap., 2 Id., 338, the writing contained no cuvenant to be performed by the grantor, and there was an express condition that the conveyance was not to take effect until after the grantor’s death: Johnson ®. McCue, 10 Casey, 180; Taylor ®. Mitchell, 6 Norris, 518 ; Brinker ®. Brinker, 7 Barr, 55; Bond ®. Bunting, 28 P. P. Sm., 210.</p>

Assumpsit by Lawrence county against the overseers of the poor of Scott township.

Assumpsit by John Cochran, William Cochran, Allen Cochranj and D. R. Knight, trading as the Summit Gas Company, against C. C. Chamberlain, to recover the value of gas used by the defendant, in drilling an oil well. On the trial, before Wilson, J., the plaintiff gave evidence substantially as follows: The business of the plaintiff company was that of furnishing gas for drilling wells. The defendant was indebted for gas for drilling wells $125.

Debt by Mary J. Thompson, guardian of John and William Semple, minors, against C. EL Buhl, James Westerman, C. H. Andrews, and W. J. Hitchcock, doing business as Buhl, Westerman & Co., assignees of It. M. Ulp, to recover upon a lease. At the trial before McDermitt, P. J., the following facts appeared: On January 27, 1869, the plaintiff sold and conveyed to It.

Case stated between Sadie E. Coyle as plaintiff, and John Young as defendant, to determine the ownership of a third of an undivided… Held: and see what the result will be. This particular recital is : ‘ Said first parties hereby conveying their interest as heirs of said deceased,’ (William Coyle.) The general words which follow this particular recital, and under which the defendant’s counsel claim that the title of the heirs of Manassa, or of his devisees, passed to…

<p>Error to the Court of Common Pleas of Monroe County.</p> <p>Alias scire facias sur mortgage by Israel L. Day and Samuel Saylor to the use of the Stroudsburg Bank against Amos Day and Philip Woodring, partners, under the firm-name of Day & Woodring, and Thomas E. Davis and William MoMurtry, heretofore doing business as Davis & McMurtry, Henry Crosky and Charles S. Reilly, doing business as Crosky & Reilly, terre tenants.</p> <p>Pleas, nil débet; no lien, and a special plea that Samuel Saylor, one of the original mortgagees, on February 19, 1868, received satisfaction in full of the mortgage upon which the scire facias was brought, and gave a receipt therefor on the margin of the record of the mortgage ; and a further plea of receipt of debt and release and satisfaction of lien of mortgage under seal of Samuel Saylor, one of the mortgagees, dated February 19, 1868.</p> <p>On'the-trial before Meyers, P. J., the following facts - appeared:</p> <p>On August 17, 1861, Israel Day and Samuel Saylor, by deed of that date, sold and conveyed to Amos Day and Philip Woodring, co-partners, certain real estate situate in Luzerne, Carbon, and Monroe counties, for the consideration of $1 and of two hundred and seventy-nine promissory notes of the vendees for the payment of $126,000 to the vendors. These notes were of various denominations, and payable at different dates. At the same time, Day & Woodring executed and delivered to Day & Saylor a mortgage of said real estate to secure the payment of the notes and obligations. The mortgage was recorded in Monroe county, August 23, 1861. December 3, 1861, Day & Saylor agreed with the Stroudsburg bank, in consideration of the allowance of a line of discounts not exceeding $28,000, to place $28,000 of tbe judgment notes of Day & Woodring with the bank, and thereupon made a formal assignment to the bank of notes to that amount. On August 26, 1864, Amos Day and Philip Woodring, by deed of that date, sold and reconveyed the said real estate to Israel Day and Samuel Saylor. This deed was recorded in Monroe county March 5,1868. It set forth that “Amos Day and Philip Woodring were unable to comply with the terms and conditions of their purchase and take up and pay the said promissory notes and obligations as they fell due and matured, and are now unable to pay them with the accrued interest thereunto, and have, therefore, proposed to the said Israel L. Day and Samuel Saylor to reconvey to them the said real estate mentioned in the said deed (above referred to) upon condition that the said Israel L. Day and Samuel Saylor shall assume upon themselves and pay all of the said promissory notes and obligations still due and unpaid, together with all of the liens by judgment and mortgage now upon the said several tracts of land as well as those subject to which the said deed was given, as those upon the said lands and not therein mentioned, and all of the indebtedness incurred by the said Amos Day and Philip Woodring in the cutting and stocking the logs and lumber now upon the said premises, manufactured and unmanufactured and unsold, (all which said personal property, manufactured and unmanufactured lumber, has been, by bill of sale, for the consideration therein mentioned, conveyed, assigned, and transferred to the said Israel L. Day and Samuel Saylor by the said Amos Day and Philip Woodring,) which proposition has been accepted, and the said Israel L. Day and Samuel Saylor have, by articles of agreement, covenanted and agreed to assume and pay the said notes and liabilities, judgments, and mortgage liens, and to release and discharge the said Amos Day and Philip Woodring therefrom. Now, this indenture witnesses that the said Amos Day, and Sarah, his wife, and the said Philip Woodring, and Mary Ann, his wife, for, and in consideration of, the sum of $1 unto them in hand paid and of the premises have granted, bargained, &c.”</p> <p>February 19, 1868, Samuel Saylor entered upon the margin of the record of the mortgage the following:</p> <p>“Received full and complete satisfaction of this mortgage, both debt and interest, and I do hereby release the lands and tenements therein mentioned and described from the lien thereof.” It was signed and sealed by him and witnessed by the recorder.</p> <p>On March 2, 1868, Israel L. Day and Samuel Saylor, by deed of that date, sold and conveyed to Thomas E. Davis and William McMurtry, two of the defendants, the undivided one half part of the land situated in Monroe county and described in the deed of Day & Saylor to Day & Woodring, and in the deed of reconveyance by Day & Woodring to Day & Saylor. The consideration was $75,-000 : $20,000 paid in cash, $15,000 secured by notes, and $40,000 by a mortgage on the premises. The notes and mortgage were afterwards paid by Davis & McMurtry. On April 5, 1872, Henry Croskey & Co. obtained five several judgments by confession in Carbon county, each for $7,200, against Israel L. Day, Samuel Saylor, and L. A. Buckley. On May 2, 1872, on certified transcripts of the judgments in Carbon county, judgments were entered in Monroe county. On one of these judgments a writ of fieri facias was issued out of the Court of Common Pleas of Monroe county, and all the right, title, and interest of Day & Saylor in the land situate in Monroe county and described in the several deeds already mentioned was levied upon. Upon waiver of inquisition filed, said interest was sold by the sheriff on the 12th of February, 1877, to Henry Croskey and Charles S. Riley for $1,000, and a deed poll for the same executed and delivered to the purchasers.</p> <p>May 7, 1877. The plaintiff issued the alias scire facias upon the mortgage from Day & Woodring to Day & Saylor, under which the present contention arises.</p> <p>The plaintiff’s cashier testified that he had no notice of the satisfaction of the mortgage, and did not know that Day & Woodring had conveyed the property back to Day & Saylor.</p> <p>William McMurtry testified that February 28, 1868, he obtained a certificate under the hand and official seal of the recorder of deeds of Monroe county, that he found no unsatisfied mortgage, or mortgages, against Israel L. Day, Samuel Saylor, Amos Day, and Philip Woodring, or against the firms of Day & Saylor, and Day & Woodring, and that he “undoubtedly inquired of Day & Saylor whether the property was mortgaged.”</p> <p>Henry CrosTcey testified that prior to the confession of the judgments to his firm, he obtained certificates from the recorder of deeds of Monroe county showing a clear title.</p> <p>Samuel Saylor, being called by the defendants, was asked:</p> <p>Q. If you saw Depue S. Miller, president of the Stroudsburg Bank, after the Stroudsburg Bank had received certain judgment notes of Day & Woodring as collateral security for money borrowed from the bank, or to be borrowed, or for discounts to be made to Day & Saylor by said bank, in relation to the transfer and reconveyance of the mortgaged property from Day & Woodring to Day & Saylor, state what the conversation was, and what arrangement was made with Depue S. Miller, president of said bank, in relation to the reconveying of the mortgaged premises, for the purpose of showing that the bank, through its president, knew that the mortgaged property was to be reconveyed by Day & Saylor, and that the same was satisfactory to said bank, and that the reconveyance was made publicly, and not for the purpose of defrauding the bank.</p> <p>Objected to as irrelevant and immaterial, and that the bank' would not be bound by the acts or declarations of its president unauthorized by the directors of said bank in matters beyond the ordinary sphere of his duties as president. Objection sustained. Exception, (first assignment of error.)</p> <p>■Q. State whether or not you came to see D. S. Miller, president of the Stroudsburg Bank, at Stroudsburg, to confer with him, inasmuch as the bank held certain judgment notes secured by a mortgage from Day & Woodring to Day & Saylor, in relation to the reconveyance of the mortgaged property from Day & Woodring back again to Day & Saylor, and whether the said bank, through its president, did not agree to the reconveyance, and that, instead of looking to the judgment notes held by the bank, and to the mortgages already referred to as collateral security for money loaned to Day & Saylor on notes discounted for them, agreed to release the said judgment notes, and look to Day & Saylor for the payment of the said indebtedness secured by said judgment notes, inasmuch as the said property was again to pass into the ownership of said Day & Saylor.</p> <p>Objected to as irrelevant and immaterial; that the witness is not the proper person to prove the consent of the bank to the arrangement set forth in the defendant’s offer ; that the evidence offered by the counsel of the bank is not the best evidence which the case is susceptible of ; and that the president had no power to' make such agreement, as being outside of his ordinary and official duty as president: Brown v. Simpson, 2 Watts, 238. Objection sustained. Exception, (second assignment of error.)</p> <p>Q. Bid you not meet the board of directors in session, and confer with them in relation to the indebtedness of Day & Savior to the bank, and propose to the bank to secure them, and did you not receive a verbal answer to your offer that they would not accept the offer, as they had enough real estate ?</p> <p>Objected to as immaterial and irrelevant. Objection sustained. Exception, (third assignment of error.)</p> <p>Counsel for the defendant presented, inter alia, the following points which the Court negatived :</p> <p>Fourth. That there is no evidence in this case showing that Thomas C. Davis and William McMurtry, or either of them, had notice of the Stroudsburg Bank holding certain notes as collateral security, secured by the mortgage upon which the scire facias in this case was issued before they became purchasers for value of the undivided half, or moiety, of the real estate mentioned in this mortgage, and, therefore, there can be no recovery against them in this suit.</p> <p>Fifth. That there is no evidence in this case showing that Henry Croskie and Charles S. Riley, or either of them, had notice before May 2, 1872, when they caused to be entered up certain judgments against I. L. Day, Samuel Sayloi', and Lewis A. Buckley of Nos. 195, 196, 197,198, and 199, of February term, 1872, that the Stroudsburg Bank held certain judgment notes as collateral security for indebtedness of Day & Saylor, secured by mortgage, upon which the scire facias in this case was issued, and, therefore, cannot be affected in this suit by the secret equities which the said bank held, and cannot be affected by notice given after the entering of these judgments.</p> <p>The Court further charged the jury as follows, inter alia:</p> <p>[‘‘The mortgage being in favor of Israel L. Day and Samuel Saylor, jointly, we hold that under the circumstances of this case an entry of satisfaction by one of the mortgagees is insufficient in law.] Be that as it may, there is another circumstance in this case that will entitle the plaintiffs to a verdict, provided you find that the promissory notes or obligations held by the plaintiffs are part of the same notes for the payment of which Day & Woodring gave the mortgage in suit to Day & Saylor, and that the plaintiffs were the bona fide holders of them for value prior to February 19, 1868, the date of the entry of satisfaction on the mortgage. Davis & McMurtry are purchasers by deed from Day & Saylor of a part of the real estate which Day & Woodring by deed sold and conveyed to Day & Saylor. In this deed, as we have already stated, Day & Saylor not only assumed to pay the notes or obligations given by Day & Woodring to them, due and unpaid, together with all the liens by judgment and mortgage upon the several tracts of land so conveyed; but this assumption and agreement by Day & Saylor to pay said notes, etc., is expressly made part of the consideration of the grant of the premises; so, also, in the tenendum part of the deed, the premises conveyed are held under and subject to the premises set forth in the deed, and in the receipt to the deed these promissory - and the agreement in the deed wherein Day & Saylor stipulated to pay said notes is expressly stated. Prior to the reconveyance by Day & W oodring to Day & Saylor, the fonner were the payors of the notes, and Day & Saylor the payees. By the reconveyance, Day & Saylor became the payors of said notes — not to themselves, for that would be an absurdity — and, therefore, the reasonable construction of the clause in the deed of reconveyance already referred to is that Day & Saylor made themselves liable for the notes and mortgage to such persons or party who, at the time, were the lawful holders of any of said notes. [By the reconveyance, the intention of the parties was to keep the mortgage given to secure the payment of the notes alive, but not for the benefit of Day & Saylor,] for, if that had been the intention, and Day & Saylor had at that time all the notes in possession, there would have been no necessity for the stipulation in the deed. The deed of Day & Woodring to Day & Saylor being in the line of the title of Davis & McMurtry, they are bound by all the provisions in said deed. In addition to that, their deed was placed on record three days after the execution and delivery of the deed to Davis & McMurtry, and before $55,000 of the purchase money was paid by the latter, [they, therefore, had constructive notice of the contents of the deed of Day & Woodring to Day & Saylor.] On both grounds, they had no right to rely on the certificates of the recorder of deeds, [and, though the satisfaction of said mortgage had been signed by both Israel L. Day and Samuel Saylor, it would have been no protection to them, if, at the date of said satisfaction, any of said notes were in the hands of bona fide holders.] It was the duty of Davis & McMurtry, by reason of the matter contained in the deed of Day & Woodring to Day & Saylor, to inquire of the parties to said deed for the purpose of ascertaining whether said notes were in fact paid, either by the production of all the notes, or by satisfactory evidence that all liability on said notes had ceased. [What I have said respecting the defense of Davis & McMurtry is equally applicable to the defense made by Henry Croskey and Charles S. Reilly.] [If, therefore, you are satisfied that the notes held by the plaintiffs were part of the notes which constituted the consideration of the mortgage in suit, and the plaintiffs were the lawful holders of them at the date of the entry of the satisfaction on the mortgage, viz: February 19, 1868, of which facts there can scarcely be any question, the plain-, tiffs are entitled to a verdict for the amount of their claim, a statement of which will be furnished to you.”]</p> <p>October 4, 1879, verdict for the plaintiff for $2,659 48, and judgment thereon. The defendants took this writ, assigning for error the rejection of their evidence offered as above, the portions of'the charge within brackets, and the overruling of their points.</p> <p>1. We contend that when Davis & McMurtry bought, the mortgage being satisfied on the record, they were innocent purchasers for a valuable consideration, without notice of the alleged lien of the bank.</p> <p>2. That they made all the inquiries incumbent on them to make.</p> <p>3. That they did not have actual notice that the Stroudsburg Bank held any of the notes secured by the mortgage.</p> <p>4. That the title papers did not give them constructive notice that any of said notes were outstanding and unpaid.</p> <p>5. And that the bank was guilty of laches in not putting their claim on record, and for that reason they cannot recover : Hardy v. Reeves, 5 Vesey, 426 ; Cord well v. Mackrille, 2 Eden, 347; Jones v. Smith, 1 Hare, 52 ; Ware v. Lord Egmont, 4 De. Gex., McN. & G., 469 ; Sellers ». Benner, 9 W. N. C., 88; Twelves ®. Williams, 3 Wharton, 491; Wilson v. McCullough, 11 Harris, 440 ; Sergeant v. Ingersoll, 7 Barr, 340; Boggs v. Varner, 6 W. & S., 474; Brown «. Simpson, 2 Watts, 243; Mott v. Clark, 9 Barr, 404 ; Wetlirill’s Appeal, 3 Grant, 287; Fisher v. Knox, 1 Harris, 622.</p> <p>We do not deny the general principle as claimed by counsel for plaintiff in error, and as recognized by the Court below in their opinion discharging the rule for a new trial. As a general proposition, it is doubtless true that satisfaction by one of two or more co-mortgagees is satisfaction as to all, but this applies only where the mortgagees continue to be the holders of the obligations secured by the mortgage. Where these obligations have been assigned, and the mortgagor knows of such assignment, he must pay, not to the mortgagee, but to his assignee. A payment to, and discharge by, the mortgagee is void; and a subsequent purchaser of the premises bound by the mortgage, with constructive notice of the facts, or of such other facts, as should induce a prudent man to make inquiries 'which, properly pursued, would lead to the facts above stated, takes the land subject to the mortgage: 2 Jones on Mortgages, § 956; White v. Hampton, 13 Iowa, 259 ; Purdy v. Huntington, 42 N. Y., 334 ; Wilhelmi v. Leonard, 13 Iowa, 330 ; Heath v. Page, 12 Wr., 130.</p>

<p>1. A mortgage was given to secure a bond to A and E conditioned for the payment of $5,000 “at the expiration of ten years from the date thereof,” with interest payable half yearly to T, and in case of the death of T before the expiration of the ten years, the interest to be paid to the obligees. The consideration for the bond and mortgage was the sale of certain real estate in which T had a life estate. Before the expiration of the ten years, the mortgagors and the assignee of the mortgagees, entered into an agreement which recited that T had, for a good consideration, released to the mortgagors all of her interest, and provided that the mortgage should “ be considered and taken as now due and owing,” that all questions in dispute should be submitted to three arbitrators, that the aWard of the arbitrators or a majority of them should be final and conclusive, that the award should determine the present value of the interest of the assignee and the amount owing to him, and should take into consideration the value of the interest of T, then released to the mortgagors. It further provided that the mortgagors should pay the costs of the arbitration and make a deposit for the purpose, and should give a mortgage to secure the performance of the award. The deposit was duly made and the mortgage given. The arbitrators met and heard the parties, but were unable to make an award, because no two of them could agree upon the sum due. Held, that the agreement being founded upon a full and sufficient consideration, and it not being possible to restore the parties to their former position, a court of equity had jurisdiction to give the relief contemplated by the parties when they agreed upon a reference, and to ascertain the amount due upon the mortgage, and decree its satisfaction upon the payment of such amount.</p> <p>2. In ascertaining the amount due upon the mortgage, the master in the Court below deducted from the sum named in it the value of the life interest of T, as shown by approved annuity tables. Held, that this was proper deduction.</p> <p>3. A, one of the mortgagees, died, having bequeathed all of her interest in the mortgage to E, the other mortgagee, who was living at the time of the suit. The mortgagor was permitted to testify that he had never made any agreement that a due bill made to him by E for advances should not be used as a set-off against the mortgage. Held, that he was a competent witness for the purpose.</p> <p>4. The mortgage recited a promissory note made by the mortgagor to the mortgagees for $2,000, “ the said amount having been received by him from them.” The note set forth that it was given “as a collateral security ” for the sum secured by the bond, and “ if the conditions in said mortgage are complied with, then this note to be null and void, otherwise valid.” The master found, as a fact, that the note was without consideration. Held, that the note being manifestly but collateral to the mortgage, it should, upon the payment of the latter, be surrendered to the maker.</p> <p>5. The allowance of costs to the defendant is a matter in the sound discretion of the Court below.</p>

4, of Philadelphia Qounty. Trespass on the case by Henry C. Sehweer against N. S, Bowers to recover damages for the removal by defendant of a locked gate from the entrance to an alley, the exclusive use of which is claimed by plaintiff. On the trial, January 17, 1882, the following facts ap-. peared: On August 5, 1851, Patrick Lacy became seized of two adjoining lots and messuages described separately as follows : No. 1.

Appeal of Henry 0. Brolasky, one of tbe residuary legatees and devisees under tbe will of Simon Brolasky, deceased, from the decree of the Orphans’ Court of Philadelphia County, dismissing exceptions to the adjudication sur the first account of the executor, and confirming-said adjudication. Simon Brolasky died January 13, 1881. Letters testamentary upon his estate were granted, January 20, 1881, to Henry C. Brolasky, who was one of the residuary legatees and devisees.

Appeal of Henry C. Brolasky, acting executor of the will .of Simon Brolasky, deceased, from the decree of the Orphans’ Court of Philadelphia county, dismissing his exceptions to the adjudication sur his first account as such executor and confirming said adjudication. Simon Brolasky died January 13, 1881. In his will, which .was duly admitted to probate, he directed, inter alia, as follows : “Item.

Appeal of Frederick Collins from the decree of tke Orphans’ Court of Philadelphia County.

Appeal of Anna Alida Conrow and Joseph D. Conrow, guardian of Alfred T. Conrow, a minor, from the decree of the Court of Common Pleas, No. 1, of Philadelphia County, in the matter of the estate of Thornton Conrow, deceased. Thornton Conrow died March 15, 1882, leaving a last will and testament, dated July 1, 1881, which was verbatim and literatim as follows: . Will of Thornton Conrow.

2, for the City and County of Philadelphia. Assumpsit by William L. Elkins, trading as William L. Elkins & Company, against the Susquehanna Mutual Fire Insurance Company, of Harrisburg, upon a policy of fire insurance.

<p>Error to the Court of Common Pleas No. 3 of Philadelphia County.</p> <p>Case by John I. Green, treasurer pro tem., (substituted in place of Samuel Kilpatrick, deceased, treasurer,) to the use of the Schuylkill Point Meadow Bank Company, against John A. Garrett, executor of the last will and testament of George Hoffner, deceased, and Sarah A. Hoffner, sole devisee, to recover assessments for the years 1872, 1873, 1874, 1876, 1877, 1878, and 1879, for keeping up the banks upon meadow property. Pleas — non-</p> <p>assumpsit, and a special plea that the acts under which plaintiff claimed to recover were unconstitutional, and denying the right to recover as against Sarah A. Hoffner. The Schuylkill Point Meadow Company was created under the act of 26th September, 1761, which provides that Hugh Roberts and others are nominated, authorized, and appointed to divide the banks which surround and include a certain parcel of meadow land and marsh situated in the township of Passyunk, and allot how many perches of the said bank each owner or possessor of the said tract shall make, repair, maintain, and support in proportion to the number of acres of meadow he holds therein, allotting the part and proportion so to be made, repaired, maintained, and supported as near and convenient as may be to the land of each respective owner thereof.</p> <p>The act further provides that said banks shall always be kept at least six inches above all tides ; that the costs and charges thereof shall be paid by all the owners, occupiers, or possessors according to the number of acres that each of them shall hold, possess, and occupy; that the owners shall elect managers and a treasurer; that said managers shall have power to lay ‘ ‘ such assessment and taxes on every acre of land belonging to the said company as they shall judge to be necessary for the benefit and security of the same;” that they are authorized to enter upon and inspect, at least four times in each year, all the banks, &c. ; and if any part shall be in any manner insufficient “on such inspection and determination, the said managers shall give notice to and require the said owners or possessors, or their guardians, (if minors,) and within the county of Philadelphia, forthwith to amend their, and each of their parts or allotments in such manner as they shall direct; ” that if any owners or occupiers so warned shall refuse or neglect to repair, it shall be lawful for the said managers, with workmen, horses, &c., to enter and repair the same in such manner as they shall think fit and reasonable, and adjust and settle the expense thereof, and deliver to the said owners their respective bills; and in case of their refusal or delay of payment, they shall order the treasurer to advance so much out of the public stock as shall be sufficient; that the managei-s shall cause a true list of the names of all the said owners or possessors, with a true account of every acre of meadow in the aforesaid tract which they respectively hold, and shall furnish the treasurer with a true copy thereof, together with the sum per acre of the general assessment; and the treasurer shall cause public notice of the said rate or assessment per acre to be given at least ten days before the day of payment.</p> <p>‘£ Seo. 11. That if any of the said owners, possessors, or occupiers shall neglect or refuse, as aforesaid, to pay the several sums of money, together with the forfeitures arising thereon, which they respectively ought to pay at any time or times hereafter, for the space of twelve months after any of the days or times in which it ought to be paid; or shall have neglected or refused to make, amend, or repair his, her, or their part or share of the bank, so as aforesaid to them allotted, or shall have neglected or refused to re-imburse the treasurer for the time being, the necessary expense thereof, agreeable to the direction of this act; that then and so often it shall and may be lawful to and for the said treasurer, by direction of the said managers, or any three of them, in his own name,- to sue all and every such person or persons so refusing or neglecting, for the respective sum or sums of money which he, she, or they ought to have paid by virtue- hereof, by action of debt, if five pounds or under, before any justice of the peace of the county, or if above five pounds, in any court of record where the same may be cognizable, and give this act and the said assessment, or the said account, as the case may require, in evidence; and the said justice of the peace and the said court are hereby empowered and directed to give judgment and grant execution for the same, with costs of suit accordingly ; to be levied on the tract or piece of marsh, meadow, or cripple belonging, as aforesaid, to such owner or owners so neglecting or refusing, and delivered unto the managers for the time being, who, or any three of them, are hereby empowered and authorized to let out or rent any part of the said meadow belonging to any of the said owners who shall so neglect or refuse, or who shall not be found in the county as aforesaid, from year to year, for so long time as until the rent or rents arising therefrom shall, as nearly as may be computed, pay all such sum or sums of moneys so assessed, or so charged, together with all costs arid forfeitures arising thereon for his or their neglect or refusal to pay the same as aforesaid, and no longer: Provided always, That in letting out the said meadow, the said managers do publicly notify the leasing thereof, and let the same to the*highest bidder at private sale or bargain.”</p> <p>The above act was amended by act of April 15, 1782, (2 Smith’s Laws, 44,) which provides :</p> <p>Sec. 2. And whereas, It is found by experience that the mode of supporting the said bank by individual allotments is attended with divers inconveniences,</p> <p>Be it therefore enacted, * * * That from and after the publication of this act, the several owners of meadow ground within the banks surrounding the said Schuylkill Point Meadows shall be, and they are hereby, released and discharged from making, repairing, maintaining, and supporting the several proper shares, parts, proportions, and quantities of the said bank to them allotted, in pursuance of the said recited act, at their own proper expense and charge, and of and from all penalties. and forfeitures, by the said recited act annexed to the neglect thereof.</p> <p>■ Sec. 3. And he it further enacted hy the authority aforesaid, That immediately after the passage of this act it shall and may be lawful for the present managers of the said company to enter into and upon the said banks ; and if, upon inspection, it shall appear to them that any particular allotments thereof shall stand in immediate need of repair, then it shall be lawful for the said managers, without consulting the owners of the particular allotments which shall so require immediate repair, to enter upon the adjoining grounds with such workmen, horses, carts, implements, and tools as shall be necessary, and to dig and cast earth, or purchase other materials, and cause the said allotments of banks to be repaired so as to put them all in order and repair, as nearly as possible equal, at the several expenses and charge of each of the said owners of the said allotments which shall require such repair, and to levy, recover, collect, and receive from each of them, respectively, the several amounts of the said respective expenses and charges, in the same manner, and under the same penalties and forfeitures, as the taxes for other purposes in the said recited act mentioned are directed to be levied, recovered, collected, and paid.</p> <p>Seo. 4. And in order for the better and more certain and expeditious repairing and supporting the said bank in future, and for rendering the burthen and expense thereof more equal upon the said owners :</p> <p>Be it enacted, by the authority aforesaid, That from and after the publication of this act, it shall and may be lawful to and for the managers of the said Schuylkill Point Meadows, elected and to be elected in pursuance of the before-recited act, and they are hereby enjoined and required to enter upon and inspect the said banks, drains, and ditches, so often as they shall think necessary, but not less than four times in every year ; and if, upon such inspection, it shall appear to them that any part of the said bank stands in need of repair, whether from gradual decay or a sudden irruption of the water, or otherwise, then, and in such case, it shall and may be lawful for the said managers, without consulting the owners of the particular place where such repairs are wanting, to enter upon the adjoining grounds, with such workmen, horses, carts, implements, and tools as shall be necessary, and there to dig and carry earth, or purchase other materials for the repair and support of the said bank, (in a good, substantial, and sufficient manner, according to the directions in the said recited act contained,) at the joint expense and charge of all the said owners. * * *</p> <p>Seo. 6. And be it further enacted by the authority aforesaid, That it shall and may be lawful for the said managers, elected and to be elected as aforesaid, from time to time to lay such assessments and taxes on every acre of land within the said bank as they shall judge necessary for repairing, maintaining, and supporting the same, and for the other purposes herein above mentioned, to be paid, collected, and recovered in the same manner, and under the same penalties and forfeitures, as the taxes for other purposes in the said recited act mentioned are thereby directed to be levied, recovered, collected, and paid. * * * * * *</p> <p>Seo. 8. And be it further enacted by the authority aforesaid, That so much of the said recited act as is herein and hereby altered shall be -and is hereby repealed, and made null and void; but all and every other matter and tiling therein contained shall be and remain in full force and virtue, as if this act were never made.</p> <p>On the trial before Ludlow, P. J., the following facts appeared:</p> <p>George Hoffner, in the year 1853, became the owner of about thirty-two acres of land in the southern part of the city of Philadelphia, including about twelve and three quarter acres within the boundaries of the Schuylkill Point Meadow Company. He became a member of the company and so remained, paying his assessments until his death in May, 1871. By his last will and testament he devised all of his real estate to his wife, Sarah A. Hoffner, forever, and appointed John A. Garrett his executor. At the time suit was brought the devisee still owned the land. No notice of the assessments had ever been given to her or to the executor.</p> <p>The Court charged the jury:</p> <p>“The facts in this case are virtually admitted. The Schuylkill Point Meadow Bank Company was incorporated in the year 1761, and the 'object of the company was to raise a fund for the purpose of building a bank along the river Schuylkill in the southern part of this city, to keep the river from overflowing the meadows lying between the Schuylkill and Delaware rivers. This fund, according to the provisions of the act, was to be raised by the managers levying asssessments, from time to time, upon land lying within the limits of the company. These assessments were to be paid by the owners or possessors of said land.</p> <p>“ It is undoubtedly true that this company have extraordinary powers under their charter, and as this case will eventually turn upon the law, I will reserve those questions for future consideration. I will say to you, gentlemen, that the counsel for defendants lay some stress upon the point that the plaintiff has failed to show that Mrs. Hoffner’s land has been benefited by the work done by the company, for the reason, as is contended, that the footing ditch along Hollander’s creek has not been kept open so as to drain her land. For the purposes of this case I charge you, that if there was a general benefit to the land-owners by the work done by the company, that seems to me to be sufficient under the law; and I do not think the company were bound to keep the footing ditch along Hollander’s creek open for the purposes of drainage. Neither do I think the company were bound to give Mrs. Hoffner notice of the levying of assessments. Now, gentlemen, if you believe that the work was done by the company, as the plaintiff alleges, and about which there is no serious dispute, and that said work was necessary, then your verdict should be for the plaintiff, subject, of course, to the points of law submitted by the counsel for defendants, and which points I reserve for the court in banc.”</p> <p>The following points of law were reserved for the court in banc:</p> <p>First. Whether the act of Assembly of September 26, 1761, and the supplement thereto, passed April 15, 1782, under which the plaintiff seeks to recover, are not in violation of the bill of rights and unconstitutional.</p> <p>Second. Whether the said Garrett, executor, and said Sarah A. Hoffner, sole devisee, of George Hoffner, deceased, it having been shown that they were not members of said company, and have not assented to the laws or acts of said company, are bound by said acts of Assembly.</p> <p>Third. Whether there can be a recovery against the defendants in this suit, under the following point, (3rd,) submitted by defendants, to wit: “ That it is not the true intendment of the said acts of Assembly that the managers may suffer the assessments to remain unpaid for an indefinite time, finally to be collected from a new tenant or an innocent purchaser ; that prompt collection of the assessments from the proper parties is enjoined by the spirit of the act, rather than a loose and unwarranted construction for the r enlargement of the powers of the managers.”</p> <p>Fourth. Whether the said Sarah A. Hoffner, being the sole devisee of George Hoffner, deceased, is bound by covenants between him and said company, she not being a member of said company.</p> <p>April 11, 1882. — yerdictfor plaintiff for $535 50, subject to points reserved.</p> <p>The, defendants moved for a-new trial and for judgment non obstante veredicto upon the points reserved. The Court discharged the rule for a new trial, and refused to enter judgment for the defendants non obstante veredicto. By agreement of counsel the verdict was afterwards reduced, to $338, and judgment entered thereon. The defendants then took out a writ of error, assigning as error the charge of the Court and the refusal to enter j udgment for the defendants non obstante veredicto.</p> <p>The act of 1782, in not requiring notice to be given, does not repeal the notice required by the act of 1761. Amendments must be reasonable and consistent with the object of the act of incorporation : Shields v. Ohio, 5 Otto, 321; Miller v. R. P., 21 Barb., 513.</p> <p>The act of 1782, dispensing with notice, is unconstitutional, because it deprives a citizen of his property without “due process of law.”</p> <p>These acts should not be construed as to work injustice to those who were not parties to them.</p> <p>Prompt collection of the assessment from the proper parties is required by the spirit of the act: Rutherford v. Maynes, 9 W. N. C., 561.</p> <p>In Rutherford ». Maynes, supra, an analogous act was held to be constitutional. The decision there was upon the point that the assessments could not be collected by distress from a tenant who went into possession after they were laid, or from any innocent purchaser. The assessments were made only for the years during which Mrs. HofEner was owner, and therefore Rutherford v. Maynes does not apply.</p>

4, of Philadelphia County, Bill in equity filed by Elisha E. Everitt against Henry S. Hale, Artemus Kilburn, J. Warren Hale, Cheney Kilburn, and Warren Hale, who survived H. W. Curtis, with whom they traded as Hale, Kilburn & Company, and The Hale & Kilburn Manufacturing Company.

2, of Philadelphia County. Foreign attachment- case by Charles B. Gunn and Charles M. Johnson, trading as Gunn, Johnson & Company, against the- Hope Thread Company, defendants, to recover damages for an alleged breach of contract in failing to deliver to complainants 21,250 pounds of yarn.

<p>1. The principles decided in an appeal from the distribution of a decedent’s estate by the Orphans’ Court, apply with equal force to attachment executions issued from the Court of Common JPleas by the appellants against the distributee’s interest in the said distribution.</p> <p>2. The Orphans’ Court lias power to revise and correct its former adjudications, if in those adjudications it discover a palpable mistake, produced either by its own inadvertence or by the blunder of the parties.</p> <p>3. The indebtedness of a distributee to the decedent, incurred more than six years before the death of the latter, cannot be set oif against the distributee’s share of the estate.</p> <p>4. The statute of limitations begins to run, on a due bill payable on demand, from its date, and no demand is necessary before suit brought.</p> <p>5. The running of the statute of limitations is not suspended by the probate of the claim in proceedings in bankruptcy against the debtor.</p> <p>6. The act of Congress of 23d June, 1874, under which the creditor could be restored to his former situation in case a discharge was refused or the proceedings in bankruptcy were determined without a discharge, does not apply where a claim has been proved and there has been neither a discharge nor any other determination of the proceedings.</p>

2, of Philadelphia County. Rule to show cause whyji./a. should not be set aside, and the judgment against Mary H. Massey stricken off.

2, of Philadelphia County. Covenant by Anna M. W. Pennypacker against The Camden and Atlantic Railroad Company upon ten coupon bonds of the May’s Landing and Egg Harbor City Railroad Company, guaranteed by the Camden and Atlantic Railroad Company. The plaintiff tiled a claim for overdue coupons and interest as follows: Bond. $500. United States of America, $500. State of New Jersey. May’s Landing and Egg Harbor (No. 46) City Railroad Company.

1, of Philadelphia County. ' Replevin for goods distrained for rent in arrear, by John N. McLean against John McCaffrey, landlord, and Charles Bregler, bailiff. Upon the trial in the court below, the following facts appeared: That the rent being due, the defendant distrained upon certain goods of the plaintiff on January 5, 1881; that the appraisement was made on January 10, 1881, and that the goods were advertised to be sold on January 16,1881.

Appeal of Elizabeth E. Miskey, Edward H. Hance, and Charles W. Otto, executors of Anthony Miskey, deceased; Elizabeth E. Miskey, Edward H. Hance, and Charlotte E. Hance, his wife, from a decree of the Court of Common Pleas, No. 1, of Philadelphia, County, dismissing the exceptions to and confirming the master’s report in a suit brought by Maria E. Miskey, administratrix of Jacob A. Miskey, deceased, against the appellants and others, to declare void a deed of trust from…

Appeal of The Pennsylvania Industrial Home for Blind Women, from the decree of the Orphans’ Court for the Qounty of Philadelphia,, dismissing their exceptions to the supplemental adjudication upon the second account of the executors, filed in the estate of Mary Shields, deceased.

2, of Philadelphia County. _ Case by Isaac Noar, suing for himself and in behalf of his wife, as parents of Moses Noar, a minor, against the Philadelphia & Reading Railroad Company, to recover damages for the death of Moses Noar. Plea: IN ot guilty.

<p>A conveyancer employed to have a conveyance made clear of incumbrance and instructed to take out new searches had a mortgage search against Jonathan Weber, the name of the grantor as it appeared in the deed to him, brought down to cover the date of the conveyance. In executing the conveyance, the grantor signed his full and correct name “ Jonathan D. Weeber.” The conveyancer then took an affidavit from the grantor that there was no other incumbrance than was on the searches. It subsequently appeared that a mortgage had been given by Jonathan D. Weeber, which the searches did not disclose, and the grantee was compelled to pay it to prevent the property from being sold by the sheriff. Held, in an action by the grantee against the administrator of the conveyancer, that the latter had not properly discharged the obligation he had. assumed and that his estate was 'liable for the amount of the mortgage.</p>

<p>1. In order to detect whether the signature to a paper in evidence is forged or not, comparison may be made by the jury between the disputed signature and those of the party well authenticated, and also by witnesses who have knowledge of his handwriting, but this rule does not extend to experts.</p> <p>2. Experts may be permitted to say whether a signature be forged or simulated, and give their conclusions.</p> <p>3. In an issue directed by the Orphans? Court to try whether a certain due bill was signed by a decedent, the defendant sought to introduce in evidence, through expert testimony, a magnified drawing of certain portions of the signature in dispute, for the purpose of showing that it differed from admittedly genuine signatures in the minute structure of some parts not visible to the ordinary naked eye. Held, that as the drawing was only the copy of a part of the signature, it was clearly inadmissible for the purpose offered.</p>

1, of Philadelphia County. Assumpsit by Elijah Green against the West Philadelphia Bank, to recover a sum of money which had been paid by the bank, out of plaintiffs money deposited with it, upon presentation of plaintiff’s checks, indorsed with forgeries of the names of the respective payees.

3, of Philadelphia County. Scire facias sur mortgage by The Cooperative Building and Loan Association against Elam F. Witmer and Maria, his wife. The mortgage upon which this suit was brought was a building association mortgage for the sum of $6,000, and was dated December 19, 1874.

<p>Appeal of William Young, William B. Young, and Benjamin Franklin Young from a decree of the Court of Common Pleas, No. 2, of Philadelphia County, dismissing a bill in equity, filed by them against James T. Beber, George G. Heilman, Samuel Berrett, Thomas Brown, James Koch, Joseph Coblentz, Adam Bard, Charles Henninger, Adam Funck, and Henry Mosser.</p> <p>The bill averred that in November, 1881, and for some time prior thereto, the defendants were the owners of four hundred and forty-six shares of the capital stock of The Pennsylvania Graphite Mining and Manufacturing Company, held by them in certain proportions therein stated ; that the said company was incorporated in 1876, under the laws of the State of Pennsylvania, with a capital stock of five hundred shares of $100 each, its object being the mining and manufacture of graphite, upon property owned and leased by it at Byer’s station, Chester county, Pennsylvania; that during November, 1881, and for some months before, the said defendants, through five of their number, the said Reber, Berrett, Henninger, Koch, and Coblentz, entered into negotiations with complainants for the purchase of the said four hundred and forty-six shares of stock owned by them, and as an inducement for the purchase thereof, represented to complainants that the business of the company was in a most prosperous condition, and then paying large dividends ; that the deposit of ore upon the company’s property was unlimited, and could not be worked out_; that the veins upon the property were rich and productive, yielding and producing the best quality and character of graph! te; that the price realized from the sale of the manufactured product so largely exceeded the cost of its manufacture that it was a most successful enterprise, and that large profits were resulting, and would still result, from the same; that the supply of the graphite, as manufactured in this property, was not equal to the demand for the same; that there was always a cash market for it; and that all graphite manufactured at the works had been, and could be, sold for cash to J. H. Gautier & Co., of Jersey City.</p> <p>That the said month of November, 1881, and during said negotiation, the said Reber, Berrett, and Henninger, for themselves and on account of the other defendants, visited the said mines and manufactory of the said company with complainants, and as a peculiar inducement for the purchase of the said stock thus represented, for themselves and in behalf of the other defendants, that the manufactory was in good and complete working order; that new machinery had been introduced, which had increased the facilities for business ; that the company was then in a condition for the successful and profitable operations of its business, and that the vein of ore then being worked was one of the best veins that had been found upon the premises ; that the process of manufacture was easily understood, and in the care and management of one-Ruth as the foreman of the company’s works ; and that in case of the purchase of the stock they would give complainants all the instructions and information necessary for the proper management of the business; that complainants, relying upon these representations of defendants, induced thereby and having no other sources of information as to the same, concluded the purchase of the said stock with said defendants for the sum of $51,980 00, and paid them in different amounts, according to the respective number of shares owned by each of them, the sum of $51,980.</p> <p>The sixth averment of the bill is as follows:</p> <p>• “ That the purchase of said stock was finally concluded with said Funck on twenty-first day of December, 1881, with the said Reber, Berrett, Bard, Heilman, Coblentz, and Mosser, on the third day of December, A. D. 1881, with said Brown and Koch on the second day of February, A. D. 1881, and with said Henninger on the twenty-fifth day of February, A. D. 1882, that said stock was assigned to your orators in equal third parts by the said defendants respectively, who received from your orators the aforesaid sums of moneys therefor in cash, amounting to the said sum of $51,980, excepting that the said Berrett received three promissory notes therefor, for the sum of $1,146 37 each ; one of which yms drawn by William Young, one of your orators, to the order of said Berrett, and the two remaining notes were drawn by AVilliam B. Young and Benjamin Franklin Young respectively, and indorsed by said William Young to said Berrett, due September 1, 1882, and excepting that said Thomas Brown received three certain promissory notes, two of them for the sum of $1,540 each — one of them made by William Young, one of your orators, to the order of said Brown, and the other of these notes by William B. Young, one of your orators, drawn to the order of said William Young, and indorsed by him to the said Brown, due February 3, 1883, and one of the notes of B. F. Young to the order of William Young, indorsed by and to the said Brown, due February 3,1883, and excepting that said James Koch received the promissory note of B. F. Young, one of your orators, to the order of William Young, one of your orators, for the sum of $1,100, due February 3, 1883, and excepting that said Henninger received two promissory no tes of B. F. Young, one of your orators, to his own order, for the sum of $500 each, due August 25, 1882; also a promissory note for the sum of $700, due November 25,1882, and also another promissory note for $500, due February 25, 1883.”</p> <p>The seventh paragraph of the bill sets forth that the complainants had assumed the management of the corporation business and expended $8,000 in the manufacture of graphite from the product of its property without effect; that complainants had discovered and averred that the various representations made to them by defendants were false and fraudulent; that defendants, though requested, had refused to give complainants any information relative to the working of the said mines and the manufacture of their product. The bill also averred that the defendants and each and all of them had, at the time of the negotiation and sale of the stock as aforesaid, knowledge of the statements and representations as aforesaid that were made to complainants, which induced the purchase thereof, and that the same were false, fraudulent, and untrue; that they knew each and all of them at the same time had knowledge that the said business of the said company was not in a prosperous condition ; that no dividends had been j>aid for the said period of two years preceding said sale; that the property of said company did not contain deposits of sufficient quantity for a successful management of its business ; that the veins then upon the property contained ore of an inferior quality, which produced an inferior article of manufacture and utterly unmarketable.</p> <p>It then prayed:</p> <p>(1.) That the contract of sale be decreed null and void. (2.) That the defendants and each and every of them be decreed to return all moneys paid to them by the plaintiff as the purchase money of the stock with interest thereon. (3.) That the defendants and each of them be enjoined from using, indorsing, or disposing of the promissory notes given and indorsed by the plaintiffs or either of them as the purchase money of the stock. (4.) That the defendants and each of them be decreed to surrender, release, and deliver unto the plaintiffs the said promissory notes and each and every of them. (5.) That the defendants and each and every of them be decreed to pay unto the plaintiffs the sum of $8,000, paid and expended by them in the management of the business of the said company, or make restitution.; and (6.) General relief.</p> <p>The defendants demurred, specifying, inter alia-.</p> <p>First. The complainants have a full, adequate, and complete remedy at law.</p> <p>Second. The statement of the case in the bill does not disclose any joint liability on the part of the defendants. The liability, if any, upon the facts stated in the bill, is several.</p> <p>Fourth. The bill does not aver that the complainants jointly purchased the stock ; on the contrary, the facts as stated in paragraph VI of the bill show that it was an individual purchase by each of the complainants, and hence the complainants have no joint title to the relief prayed.</p> <p>Eighth. Because relief is prayed against all the defendants jointly in respect of promissory notes held by, and sums of money received by, them, or some of them, individually.</p> <p>After hearing on bill and demurrer, the Court entered a decree sustaining the demurrer and dismissing the bill without prejudice. The complainants thereupon took this appeal, assigning for error the entering of the above decree.</p> <p>Equity has full jurisdiction by reason of the fraud complained of: Evans v. Bicknell, 6 Ves., 174; Blair v. Bromley, 2 Ph., 354; Adams on Equity, page 350: McElhenny v. Hubert Oil Co., 11 P. F. S., 188.</p> <p>It will rescind the contract, replace the parties in the same position as they were before, and decree a restoration : Bispham’s Equity, pages 199, 201, 207, 208.</p> <p>As to the second and fourth causes of demurrer:</p> <p>The bill avers that at the time of the negotiation and sale of the stock, a conspiracy and unlawful combination existed on the part of the defendants to deceive and defraud the plaintiffs. It avers that all of them had knowledge of the representations made ; that they were made by them and in their behalf; that they induced the purchase ; that they were false and untrue ; and that Beber, Berrett, Henninger, Koch, and Coblentz acted on behalf of all at the time of the representations and negotiations; and that Beber, Berrett, and Henninger, on behalf of all, visited the mines with plaintiffs, and made the representation of fraud as charged. All of the stock was sold under the same negotiations, and by the same representations, and the sale of it was concluded about the samé time. The stock was sold by each defendant under the contract, and they each assigned their respective shares to each of the plaintiffs in equal third parts. All were paid in the same manner, showing a common intent and joint action. Consequently, all parties are liable for the full extent of the fraud practiced which induced the purchase. They are responsible for the false representations made, even if they had no interest in the deception : Weed v. Case, 55 Barb., 547, Note to Bispham’s Equitv, page 207.</p> <p>As to the joinder of all the parties, they are all entitled to be joined, as the cause grew out of the same transaction, where both plaintiffs and defendants were interested in the same right, and the relief sought is of the same general nature. In this case there was no distinct, independent, and separate causes of complaint requiring diferent defenses and different decrees: Cumberland Valley Railroad Company’s Appeal, 12 P. F. S., 218; Young v. Allegheny Oil Company, 10 Phil., 525 ; Calvin on Equity, page 2.</p> <p>- The duty of restoring the stock and of surrendering the notes is therefore a joint one.</p> <p>As to the eighth cause of demurrer:</p> <p>All the defendants having derived a benefit from the plaintiffs through the false representations inducing the purchase of the stock, and all knowing that such representations were false, and that the notes had, given, and indorsed, for part of the purchase money, all are entitled to be decreed to surrender the notes, and protect the plaintiffs from all injury by reason thereof.</p> <p>It is submitted that it is well settled in both England and in this country that such a bill as this will not lie for the reason that the plaintiff has a full and adequate remedy at law : Mackintosh v. Tracy, 4 Brewster, 59 ; Patterson ». Lane, 11 Casey, 275; Ambler v. Choteau, 1 Supreme Court Reporter, 556. The rule is the same in England: Newham v. May, 13 Price, 749, and has been recognized in this country: Russell v. Clark, 7 Crunch, 69 ; Hardwick v. Forbes, 1 Bibb., 212 ; Woodman v. Freeman, 25 Maine, 531.</p> <p>Nor is it clear from the statement of complainants’ case in the bill that there is any joint liability whatever. The facts show a several liability. The bill states that the stock was owned individually; that the negotiations, though begun by some on behalf of all, concluded with the owners as individuals ; that the terms of purchase with the various owners varied as to price; that the contracts were consummated at different dates ; and that when negotiable securities were given, they were given to the individual owners and not to the defendants jointly.</p>

Peter A. L. Quick, and Peter A. L. Quick and Catharine, his wife, in right of said Catharine against D. M. Van Auken. Held: except upon the consent of two of the parties to the agreements accompanying that mortgage, and Quick in bad faith went on and sold that horse without notice to Yan Auken — if you find from the evidence that it was given as collateral security, and both parties testify to that — then, as a matter of law, the defendant would be…

Assumpsit October 31, 1873, by The Mountain City Banking Company against Joseph C. Bright to recover on a promissory note on which the… Held: The Mountain City Banking. Company is not prevented from carrying on a banking business because section 4 of the act in accordance with which it was organized provides expressly for such a business, and avoids so far the provisions of the general insurance law: Spahr v. Bank. 9 W. N. C., 433. Cochran v. Arnold, 8 P. F. Smith, 399.

Appeal of Andrew TI. Dill from a decree of the Court of Common Pleas of Union County, discharging a rule to show cause why the Court should not direct the manner of the sale of the real estate of Isaac. Eisenhower and Mary L., his wife, and Elizabeth Ulsh.

Assumpsit by William H. Shortt, president, in trust for tlie Sugar Grove Savings Bank against William Bates upon a promissory note for $410, 'alleged to have been indorsed by the said William Bates. The facts, as they apjjeared at the trial before McDermitt, P. J., were as follows : In 1878, W. P. Wynn got discounted at the Sugar Grove Savings Bank a note for $400, made by himself and having the name of William Bates indorsed upon it.

Appeals of the Union Oil Company, of Moerck & Falconer, and of Wm. R. Bole, guardian of W. H. Bartle, minor child of Wilmot Bartle, deceased, et al., from a decree of the Common Pleas of Warren county.

Appeal of John Y. Le Moyne from a decree of the OrpÍRins’ Court of Washington County, dismissing his petition for review of the account of the executors of Dr. F. J. Le Moyne, deceased. Held: could review and correct errors in its proceedings, if equity and justice required, and no intervening rights of creditors, purchasers, or other third parties prevented, even after the lapse of twenty years and upward : Georges’ Appeal, 2 Jones, 260.

'Case by tlie Sulphur Spring Independent School-District of Sewickly township, Westmoreland county, against the Baltimore & Ohio Railroad Company, lessee of the Pittsburgh & Connellsville Railroad Company, to recover damages for the loss of a school-house, through the alleged negligence of the defendant.

Appeal of W. H. H. Riddle from a decree of the Court of Common Pleas of Westmoreland County, ordering satisfaction to be entered on a certain judgment held by him against John Steel. The facts were as follows : In 1875, the firm of Crusan, Kunkle & Co., who owned and operated a planing mill in Parnassus, Pa., borrowed $5,000 from S. L. Riddle, of Hulton, Pa.

i Scire facias sur mechanics’ lien filed by E. D. Baer against Snyder chapel of the Methodist Episcopal church of West Newton, Westmoreland county, Pennsylvania, owner, or reputed owner, and Harry Deeds, contractor. The lien was filed April 21, 1881, against the church building erected for the corporation defendant, and set out the claim of the plaintiff as follows: “1.

<p>Error to the Court of Common Pleas of Westmoreland County.</p> <p>Covenant by W. K. Stewart & Co. against Universal Insurance Company of Philadelphia, upon a policy of fire insurance.</p> <p>W. K. Stewart & Co. were the occupiers of a certain building situate in Parnassus borough, Westmoreland county,,as “a country store, sleeping-room, and dwelling-house.” On October 13, 1877, the Universal Fire Insurance Company issued to them a policy of insurance upon the stock in said store for the sum of $1,000, for the term of one year.</p> <p>By the policy it was specified that “no agent is empowered to waive any of the conditions of this policy, either before or after loss, without special authority in writing from the company.”</p> <p>Certain provisions and conditions were attached to it, the eighth being as follows: “ It is hereby expressly provided and mutually agreed that no suit or action against this company for the recovery of any claim shall be sustainable in any court of law or chancery unless such suit or action shall be commenced within six months next after the loss shall occur, and should any suit or action be commenced after the expiration of the aforesaid six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.”</p> <p>On 30th March, 1878, a fire occurred by which the stock of goods insured was destroyed.</p> <p>Suit was brought on the policy on 7th March, 1879. The defendant pleaded the general issue and specially the eighth section of the provisions of the policy.</p> <p>Upon the trial in the Court below, before Blair, J., William K. Stewart, one of the plaintiffs, testified, under objection: “At one time, after the loss, Mr. Cross, the president of the company at that time, came to my house to see me. It was on the 14th of June, 1878, that he came to my place.</p> <p>When he came into the store — another store that I had set up after the fire — there were two or three persons in the store, two or three customers — he said he was Cross, and wanted to see me about our loss by the fire. He called me to the back part of the store ; he said he didn’t want persons to hear our conversation, or something like that. We went back there and he told me he had just stopped off to see us about our loss by fire at Parnassus. He told me he had been up north collecting money, or trying to collect it, but had come very poor speed; and that he wanted to raise money to pay our loss. He said they were scarce of funds. That is about all he said then. He said he was around insuring, too; taking risks of insurance ; and asked me if I didn’t want to insure again. I told him I believed I would. He said to give him a chance, that he would do as well as any other person. I told him if the company was responsible and in good standing I would just as leave let him take the risk a's any person else ; so he took it. Before he left he got out the risk, and told me if we wouldn’t bring suit that we would get our money; he told me not to bring suit against the company and he said we would get our money. He said they were short of funds. He said he was out up north collecting; up the valley I understood him; up north, is what he said. I took additional insurance at that time. I took $1,000 on the stock and store, and $2,000 on the dwelling. I have the policies in my pocket here. He took my note at that time. The premium came to $44. I said I did not feel like paying this, being as they owed me. He said, “I don’t want any money.” He said, “We will allow that to stand on your loss.”</p> <p>The Court charged the jury, inter alia, as follows :</p> <p>“There was also another provision in the contract of insurance which required that a suit must be instituted within six months after the time of the loss, otherwise there could be no recovery. That provision in the contract has not been complied with. It was competent for the parties to make a contract of this kind, if they saw fit; and if the plaintiff, without any sufficient excuse therefor, neglected to bring his suit within the time limited by his contract, he could not recover. The question then recurs, whether there is anything in the evidence in the cause that would relieve the plaintiff from these provisions in the contract and enable him to recover.</p> <p>The provisions to which we have alluded are in favor of the company, and compliance with them might be waived or dispensed with by the company; or [the company might enter into a new contract or make a new promise by which it would be bound.] Here, you will observe, that a notice of loss and a proof of loss were sent within the time, but the proof of loss was deficient.</p> <p>It is alleged by the plaintiff that the president of the company, some time in June, 1878, came to his place of residence, and, after first inquiring about the loss that had been suffered, stated to him that he wanted to pay it; that he was scarce of funds, and had been out on a collecting tour, but that the loss would be paid. He then asked him to insure again, which W. K. Stewart did, taking two policies, aggregating the sum of $3,000, for which he was to pay a premium of $44. And he says the president of the company agreed to charge him with that $44 on the amount due from the company for the loss that had been sustained. There is also a certain correspondence between the plaintiff and the company, which has been offered in evidence, and is part of the evidence in the cause. We have already said to you that it was competent for the defendant to dispense with compliance with these provisions in the contract, on the part of the plaintiff, or to make a new promise of payment, which, in view of the obligations previously assumed, would be binding upon the company and would enable the plaintiff to recover. The credibility of the witness is for you. If you are satisfied from the evidence of Mr. Stewart and Mr. Sproul, and from the letters and correspondence that have been offered in evidence, that the company did dispense with compliance with these provisions of the contract, or [made a new promise, through its president, to pay the loss, the plaintiff would be entitled to recover.] If you are not satisfied that there was such a promise or waiver of compliance by the company, then there can be no recovery in this cause. If you should find for the plaintiff, he would be entitled to recover the amount of the policy with interest from the time that it should have been paid. If we recollect the terms of the policy aright, the money was not to be paid until ninety days after the proof of the loss had been furnished, and in one of the letters sent by the president of the company to the plaintiff, he states that he has so many days yet in which to pay him. That is the time then from which the interest upon the sum would begin to run.</p> <p>Plaintiff’s counsel requested the Court to charge the jury: That the conditions in this policy, that suit must be brought within six months from the date of loss, and that formal proofs of loss of a certain kind must be delivered to the company within a special time, &c., are conditions solely for the benefit of the company, and any or all of such conditions may be waived by the company, and whether or not' such conditions were waived, is entirely a question of fact for the jury.”</p> <p>And the defendant’s counsel requested the Court to charge :</p> <p>First. That the plaintiff cannot recover under the evidence in this case, because the suit was brought more than six months after the loss by fire, contrary to the eighth section of the conditions of the policy.</p> <p>Second. That even if the president of the defendant company did say as testified by W. K Stewart, it would not be any waiver by the company of the eighth provision of the conditions of the policy ; that the alleged conversation did not sufficiently show that there was any waiver of the eighth condition of the policy.</p> <p>Third. That the plaintiffs under all the evidence are not entitled to recover.</p> <p>In answer to the above points, the Court said:</p> <p>“In so far as these points are consistent with the instructions we have given in our general charge they are affirmed. In so iar as they are inconsistent with these instructions, they are refused or regarded as immaterial. (Counsel for defendant requests specific answers to the points submitted by him, to which the Court replied as follows:)</p> <p>We would say that in this case there was no argument to the jury, and the Court was called upon, this Saturday evening, .to charge you immediately after the closing of the evidence in the case, and there was, therefore, not sufficient time or opportunity to draw up specific answers in writing to the several propositions submitted on the part of the plaintiff and the defendant; otherwise we would have been pleased to answer them in writing. This is the reason why we have given oral instructions in answer to these points instead of putting them in writing.”</p> <p>Defendant’s counsel excepted to the charge and the answers to the points.</p> <p>February 18, 1882. Yerdict for plaintiffs $1,091 75, upon which judgment was afterwards entered.</p> <p>Defendant then took out a writ of error, assigning as errors the answers to the points, the admission of the evidence of W. K. Stewart, relating to his conversation with the president of the company, and to those portions of the charge inclosed between brackets.</p> <p>Parties to a contract may stipulate the time within which suit may be brought: Warner v. Ins. Co., 37 Leg. Int., 475; Ins. .Co. v. Oil Co., 7 Casey, 448.</p> <p>Proof of waiver should be full, clear, unequivocal, and positive: Ins. Co. v. Mears, 1 Pennypacker, 513; Ins. Co. Conover, 39 Leg. Int., 54; Diehl v. Ins. Co., 8 P. F. Sm., 443; Bigelow on Estoppel, 437, 492.</p> <p>The officers of a mutual insurance company are special agents, and, therefore, cannot waive any of the conditions of the policy: Brewer v. Ins. Co., 14 Gray, 203 ; Ins. Co. V. Minnequa Springs Co., 11 W. N. C., 507; Ins. Co. v. Conover, 39 Leg. Int., 54; Mentz v. Ins. Co., 29 P. F. . Sm., 475 ; Adriance v. Roome, 52 Barb., 399.</p> <p>The president of the company is more than an agent within the meaning of the policy, and his acts constitute a wraiver: Ins. Co. v. Todd, 2 Nor., 272 ; Ins. Co. v. Cochran, 7 Id., 230 ; Ins. Co. v, Ensminger, 12 W. N. C., 9.</p> <p>Waiver is a question of fact for the jury: Ins. Co. v. Stauffer, 9 Casey, 397; Ins. Ca v. Cochran, 7 Norris, 230.</p> <p>It is sufficient if points are substantially answered: Monroe v. Monroe, 12 Norris, 520; Scheuing v. Yard, 7 Id., 286 ; Patterson v. Kountz, 13 P. P. Sm., 246; Smith v. Bouvier, 20 P. P. Sm., 325.</p>

Stansbury. Exceptions to the report of re-reviewers reporting against laying out a road beginning at a point in the center of a road leading from Bryansville to Cunningham’s Cross Roads, twenty-five feet from the middle of the east wall of Gibson’s mill, on Pishing creek, and ending in said public road near Isaac Stansbury’s gates in Peach Bottom township.

Appeal of Henry Weller from the decree of the Court of Common Pleas of YorTc County, discharging the rule to open judgment and to let the defendant, Henry Weller, into d defense. On April 2, 1879, judgment for $500 was entered in this case by John Keener against John Keener, David Miller, and Henry Weller, upon the following judgment note: “$500. York, Pa., April they fast, 187%.