Volume 3 — Sadler's Pennsylvania Reports

Jury trial was waived and the cause submitted to the court, who delivered the following opinion: The court finds the following facts from the evidence: The legal title of the land in suit is in the plaintiff.

Appeal by complainants from a. decree of tbe Common Pleas of Northampton County dismissing a bill in equity as to defendant Arndt and charging complainants with one fourth of the costs of the suit.

This action was brought by Elizabeth G. Eshleman against Dr. A. M. Miller for the undivided half of about one acre of ground in Bird-in-IIand, Lancaster county. In 1854, John Gyger, plaintiff’s intestate, purchased a tract of land, of which the premises in dispute is a part, and entered into possession of the whole tract. His son, Jesse Gyger, died in 1853, leaving surviving him, his wife, Mary, and his son, Abijah D. Gyger.

<p>Appeals from a decree of tbe Common Pleas of Huntingdon County in the distribution of the proceeds of the sheriff’s sale of personal property.</p> <p>The funds in question arose from the sale under execution on a judgment entered on warrant of attorney given to the Union Bank of Huntingdon, by Blain Brothers, for $50,000. Before the sale, laborers in the employ of Blain Brothers, and holders of assigned labor claims, gave notice to the sheriff under the acts of assembly giving them preference in the distribution of the funds. These notices were deemed sufficient in law, and in pursuance of the agreement between attorneys and parties interested, the sheriff paid out $22,607.83 of the proceeds of the sale. After deducting the amount paid out by the sheriff' there was left in his hands a balance of $23,361.48, and an auditor was appointed to distribute this balance among other claimants. The auditor distributed the funds, first, to the laborers having claims for wages and the holders of assigned labor claims; second, to the Union Bank of Huntingdon. Seven of the claimants holding notes made by Blain Brothers, which were taken in exchange for assigned labor claims, filed exceptions to the auditor’s report and presented their petitions to the court for an issue to determine disputed facts. After argument on such exceptions and petitions the court, Burst, P. J., delivered the following opinion:</p> <p>“The issues requested in all said petitions are substantially as follows:</p> <p>“First. Whether the labor claims or wages which were assigned to the petitioners and surrendered to the said Blain Brothers, and the accommodation notes that were taken by the petitioners, were a release of -the preferred liens that the petitioners had on the property of Blain Brothers, and the fund realized from the sale thereof by the sheriff, under the act of April 9, 1872, and its supplements.</p> <p>“Second. Whether the accommodation notes, given by Blain Brothers to the petitioners for the amount o£ labor claims and wages which had been assigned to them, were given and accepted by the petitioners in payment and full satisfaction of said assignor’s wages, and in discharge of the liens and rights of preference upon, in, and to said fund under act of April 9, 1872, and its supplements.</p> <p>“These several applicants for issues, above stated, are merchants holding the negotiable notes of Messrs. Blain Brothers, arising out of the following facts, which are undisputed upon the testimony taken by the auditor in the distribution of the proceeds of the sale ■ of the personal property of Blain Brothers, upon the writ of fieri facias issued by the Union Bank of Huntingdon, which facts are fully set out in the report of the auditor.</p> <p>“Blain' Brothers were manufacturers engaged in the manufacture of cars at Huntingdon, Pennsylvania. In connection ■with this business they had several saw mills for the manufacture of lumber. They employed a large number of laborers, ranging from 200 to 350 men.</p> <p>“This firm became insolvent on the 27th of September, 1883. Some two years prior to their insolvency they inaugurated a method by which the laborers could purchase supplies and provisions from the merchants in Huntingdon.</p> <p>“This method consisted of having 'a certificate printed, that A. B., a laborer, had so much wages due him and that it would be safe to take an assignment thereof; and underneath this certificate was a blank assignment printed.</p> <p>“The firm made monthly settlements with the men employed by them. If a laborer during the month was desirous of purchasing any supplies for his family, he would go to Blain Brothers and get them to fill up a certificate of the amount of wages due him at that time; this certificate he would then take to a merchant and buy out the amount thereof and fill up the assignment of the same to the merchant who furnished the goods. Whenever Blain Brothers issued certificates of this kind, they kept a record, and at the end of the month or at the next monthly settlement day, this amount would be deducted from the month’s wages, and the balance would be paid to the laborer. The merchants at the monthly settlements would appear and produce whatever certificates and assignments they held; they would then settle with Blain Brothers for the same, by taking their negotiable notes at 60 or 90 days; the certificates and assignments were delivered up at these settlements and canceled by Blain Brothers and placed in their safe or filed away, and thereby became the absolute property of Blain Brothers. In these notes were also included the account of the merchant with the firm, as well as the individual account of each member of the firm.</p> <p>“This method was adopted for the convenience of the laborers, and also for the purpose of favoring trade with the merchants, Blain Brothers keeping no store or supplies for the men. The merchants all knew of this plan and certainly favored it, and acquiesced in it, from the fact that they took these certificates in exchange for goods, and for some two years or more, they regularly settled with Blain Brothers at the end of each month and took their negotiable notes for the amounts due, including all .other dealings they might have during the month. This method of settlement and payment by Blain Brothers of these certificates was well known to the merchants who dealt there with them. They knew that at these monthly settlements it was the custom and general course of business of Blain Brothers to require these certificates to be delivered up and canceled, and in payment thereof they would give their negotiable note, at 90 days; but if the merchant had held the certificates over one monthly settlement day, they would give their note at 60 days. All the settlements made between them and Blain Brothers during this long period, up to the last settlement before the failure, were made in this manner, without the least objection by any one of them. It was therefore clear, beyond controversy, that the agreement between Blain Brothers and the merchant dealing in this manner was that these certificates and assignments were to be paid by the negotiable note of the firm, and that the note so given was to be taken and was taken in payment of the same.</p> <p>“'This certainly was the general custom on this subject; it was the manner in which the business was transacted. The business having been carried on in this manner for two years without the least objection by anyone, all adopting it and acting under it, the intention of the parties is clearly shown by it. No demand was ever made by anyone for a return of these certificates until after the failure, and then it was done by certain ones, in a manner which condemns the act itsélf.</p> <p>“These negotiable notes were an accommodation to the merchant himself; they could use them in business, while the certificates could have been of no advantage at all for this purpose. When these notes fell due, they were either paid or renewed by Blain Brothers, and discount paid by them upon the renewal. At the time of the failure a considerable number of such notes, taken in this manner, and renewed, as already stated, were held by a number of the merchants, and some of them had negotiated the notes, and they were held by third parties.</p> <p>“Thus far we have stated the facts as found by the auditor, and as shown in the testimony taken by him. These facts appear in the case as undisputed in our view of the testimony. After Blain Brothers were called as witnesses, and testified to conversations and understandings and agreements made with the merchants, a number of the petitioners were called, who testified that no agreement was made in reference to taking notes, etc. It is very evident that in this testimony there is a contradiction ; but it arises out of this fact, that Blain Brothers testify to an understanding or implied agreement arising out of the manner in which the business was transacted, while the several witnesses contradicting them refer to an express agreement.</p> <p>“In our view of the case it is not necessary to. consider the evidence where the contradiction arises. We have come to the conclusion of fact, as found in the evidence, outside of all contradiction- by the witnesses. We are therefore unable to find in this case any material fact which is in dispute, which could possibly change the distribution made by the auditor. The court must judge of the materiality of the disputed fact before granting an issue.</p> <p>“The court is not required to grant an issue, if the record show that it must necessarily prove unavailing. Benson’s Appeal, 48 Pa. 160.</p> <p>“This disposes of the second issue requested in the several petitions. We come now to consider the request for an issue as set forth in the first prayer in the petitions filed, viz.:</p> <p>“Whether the delivery of the certificates and assignments and taking the notes of Blain Brothers was a waiver or extinguishment of the preference which attaches, upon insolvency, to the wages of laborers under the act of April 9, 1872. This, we hold, is a question of law for the court to decide.</p> <p>“We cannot grant an issue to decide a question of law.</p> <p>“We are clearly of opinion that when these certificates and assignments were delivered up and canceled, and negotiable notes given therefor at 90 days, and thereafter renewed with interest, or discount paid as shown in this case, that the preference was waived, or extinguished. It is, however, to be noted, that at the time these assignments of labor claims were canceled, there was no preference attaching to them. This preference did not attach until the insolvency of Blain Brothers. This did not occur until September 27, 1883. At that time these surrendered orders, certificates, or assignments were delivered up and canceled and in possession of Blain Brothers, and as to them no preference could attach. They were to all intents and purposes dead, so far at least as representing a debt for wages of labor, due a laborer under the act of April 9, 1872.</p> <p>“By the act of February 24, 1834, § 21 (Purdon’s Digest, p. 421, ¶ 85), a preference of lien is given to servants for wages not exceeding one year, etc. This is but a transcript of a much earlier act of assembly.</p> <p>“In the ease of Silver v. Williams, 17 Serg. & R. 292, which was a decision under the older act, the supreme court held in the case of a decedent that a servant waived his preference of lien by taking from the decedent, in his lifetime, a single bill payable at a future day with interest. This case rules the question here, that delivering up the assignments, and taking negotiable notes at time, and renewing these with interest or discount paid, will amount to a waiver of the preference given to wages of labor under the act of 1872. The first section of the act of 1872 declares that the wages due'a laborer, etc. (as in the act), shall be a lien, etc. In the third section of the act it is termed a lien of preference.</p> <p>“It is apparent that both acts are analogous in principle. It was intended by the legislature to give in both a preference of lien to the persons therein enumerated. If, therefore, a servant, in the lifetime of his employer, can waive the lien, why may not the laborer, before the insolvency of his employer, under like circumstances, waive the preference given him by the act of 1872 ? If he can waive it before insolvency, surely his assignee may also waive it.</p> <p>“We hold that the notes taken in the manner referred to, do not possess any of the distinctive qualities of a labor claim; that the preference given to wages of labor does not attach to the notes taken for the surrendered labor claims.</p> <p>“It would scarcely be contended that a man holding a note containing a waiver of the usual clause of exemption, going to his debtor, and renewing the debt by taking another note for the amount, without the elause of exemption therein, then canceling the old note and delivering it np to his debtor, could after-wards claim that the new note had all the qualities of the old one, and that, if sued on it, the debtor could not claim the Benefit of the exemption, because of the waiver contained in the old note. Tet this is in effect what is claimed for the notes taken for the labor claims. We therefore hold that the applications for issue must be refused on this ground, even though the notes might not be considered as taken in payment of the labor claims.</p> <p>“One other fact appeals very strongly to our judgment. If these surrendered claims could be resurrected and allowed to participate in this distribution, it would work great injustice to the laborer whose wages it was the design of the legislature to protect. Many of these laborers continued in the employ of Blain Brothers up to tire failure, and then had due them the full amount for which priority is given under the act of 1872. Some of them had more than $200, some had less.</p> <p>“In all such cases a pro rata distribution would have to be made an dthe laborer, instead of getting the amount allowed him by law, would have to take pro rata with the holders of these notes. Surely such was not the design of the legislature in its enactment of April 9, 1872. These issues would have to be framed so as to give the laborer an opportunity to be heard, and instead of six or eight issues, we might multiply them by the score.</p> <p>“The several issues applied for are therefore refused.”</p> <p>The court made the following decree: “After a full and careful examination of the testimony taken by the auditor, and the argument of counsel, we are unable to discover any error committed by the auditor, either in his findings of fact, or the law arising thereon. We agree with him fully, both as to the law and the facts.</p> <p>“The distribution is made upon the only basis which preserves the right of all the creditors, laborers, merchants, and the execution creditor. To hold that the surrendered assignments, as they are designated in the auditor’s report, would be revived or revivified by the subsequent insolvency of Blain Brothers, after lying for months in their safe, delivered up and canceled, and permitting them to participate in the distribution pro rata with the labor claimants, under the preference allowed them by law for wages of manual labor, would be doing most manifest injustice to the rights of the laborers. The exceptions to said report are therefore overruled and the report is confirmed absolutely.”</p> <p>The assignments of error specified the action of the court in appointing an auditor to distribute the funds in the hands of the sheriff, the money not having been paid into court, also the action of the court in overruling the exceptions to the auditor’s report in not distributing the funds to appellants, in determining the facts, and in refusing the prayers for issues</p> <p>— The court, without having the money paid into court, and without ordering it to be paid in, appointed Theo. IT. Oremer, Esq., auditor, to distribute the same. This action of the court constitutes the first assignment of error. The decree of the court below should be reversed, as it was error to appoint an auditor to distribute the fund when it was not in court. Kauffman’s Appeal, 70 Pa. 263.</p> <p>To make a second obligation a discharge of the first there must be an agreement to receive it as such. Shaw v. Eirst Associated Reformed Presby. Church, 39 Pa. 226; Weakly v. Bell, 9 Watts, 280, 36 Am. Dec. 116; Sutton v. The Albatross, 1 Phila. 423; Jones v. Shawhan, 4 Watts & S. 262.</p> <p>The taking of the notes by the several appellants was no merger. Powell v. Wyoming Valley Mfg. Co. 8 W. N. C. 293; Insurance Co. v. Smith, 3 Whart. 528; McIntyre v. Kennedy, 29 Pa. 448, 449; League v. Waring, 85 Pa. 247; McCall v. Eastwick, 2 Miles (Pa.) 45; Kinsley v. Buchanan, 5 Watts, 118.</p> <p>A bill of exchange or promissory note, either of a debtor or any other person, is not payment of a precedent debt, unless it be expressly agreed. Weakly v. Bell, 9Watts, 280, 36 Am. Dec. 116; Byles, Bills, n. top p. 370; Tams v. Hitner, 9 Pa, 448.</p> <p>In cases of rent, the remedy by distress is not taken away by an action of debt for the same rent, and judgment obtained thereon, without actual satisfaction. Shetsline v. Keemle, 1 Aslun. (Pa.) 29; Bantleon v. Smith, 2 Binn. 146, 4 Am. Dec. 430.</p> <p>The acceptance of a note is not a relinquishment of a mechanic’s lien; additional securities are in their nature cumulative. Kinsley v. Buchanan, 5 Watts, 118; Odd Fellows Hall v. Masser, 24 Pa. 507, 64 Am. Dec. 675; Fisher v. Hush, 71 Pa. 40; Herron v. Graham, 3 W. N. O. 176; Jones v. Shawhan, 4 Watts & S. 258; Crean v. McFee, 2 Miles (Pa.) 214; McCall v. Eastwick, 2 Miles (Pa.) 45; Powell v. Wyoming Valley Mfg. Go. 8 W. N. O. 293; Philadelphia Trust Go’s Appeal, 2 W. N. C. 594.</p> <p>As the demand for the issue was in time, and the nature of the material facts explicitly set forth, and material if true, we think the court erred in refusing it. The act of assembly is quite imperative, as many decisions show, that the court under such a statement of the case must grant an issue. Section 2 of the act of April 20, 1846; Benson’s Appeal, 48 Pa. 160.</p> <p>If there is any evidence on the part of the appellees that the notes and checks were in satisfaction or extinguishment of the pre-existing debts, or claims for wages and right of preference under the act of April 9, 1872, and its supplements, then it is a matter of fact for the jury, and it is error in the court to decide it as a matter of law. Dormer v. Brown, 72 Pa. 408 ; Stone v. Miller, 16 Pa. 456; Weakly v. Bell, 9 Watts, 280, 36 Am. Dec. 116; Leas v. James, 10 Serg. & R. 315; Jones v. Johnson, 3 Watts & S. 278, 38 Am. Dec. 760; Hart v. Boiler, 15 Serg. & E. 162, 16 Am. Dec. 536; Mason v. Wickersham, 4 Watts & S. 100; Brown v. Scott, 51 Pa. 363; Jones v. Shawhan, 4 Watts & S. 263; Tams v. Hitner, 9 Pa. 448; Eby v. Hoopes, 1 Pennyp. 177.</p>

Bucher, P. J., trying the cases without a jury, in accordance with the act of April 22, 1874, found the following facts: In 1832 Joseph Henderson purchased by deed duly recorded, from William Brown, a tract of land in Mifflin county known as the John Brown survey. This was junior to an interfering survey known as the Samuel Maclay survey, which belonged to Henderson’s wife, Jane E. Henderson.

4, of Philadelphia County to review a judgment on a verdict for plaintiff in an action of sci. fa. sur municipal claim for paving. This case was tried and argued in the court below with the case of Pepper v. Philadelphia, 114 Pa. 96, 5 Cent. Pep. 693, 6 Atl. 899. The facts and rulings in the two cases are the same excepting that the contract with Frederick was signed by Brown’s son for Brown.

1, Allegheny County to review a judgment for plaintiff. Amicable action of trespass on the case, and case stated, in which the following facts were agreed upon: On May 24, 1884, the defendant was indebted to the plaintiff in the sum of $2,237.67, for which the plaintiff held the promissory note of the defendant, which that day matured and became payable.

1, of Allegheny County to review a judgment for plaintiff. The facts appear by the case of Oannonsbnrgh v. Union Nat. Bank, ante, 46. The assignments of error appear by the opinion of the court set forth in that case. — Set-off is inadmissible, unless it be between the same parties. Carman v. Garrison, 13 Pa. 158; Milliken v. Gai’dner, 37 Pa. 456; Scott v. Eritz, 51 Pa. 418; 2 Smith, Lead. Cas. *320.

At the trial before McClban, P. J., the following facts appeared : On August 11, 1884, Moseby sent by mail to the bank two of the notes in suit, for renewal of two notes held by the bank, the parties to the original notes and to the renewal notes being the same, and the amount aggregating the same.

James G. M. Bay filed his libel in divorce against Elizabeth A. Bay, on the grounds of cruel and barbarous treatment rendering the condition of the libelant intolerable and life burdensome. An issue was directed and the case tried before Simonton, P. J. Aftfer the appearance of the respondent, on application of her -counsel for allowance the court made the following order: “Nov. 3, ’84.

<p>An instrument in the form of a promissory note with the addition of the words, “and waiving the benefit of all laws exempting property from levy and sale by execution, and confessing judgment for the said amount,” is sufficient when filed with the proper averment of nonpayment and an express confession signed by an attorney, to authorize the entry of judgment by the prothonotary; and a judgment so entered should not be stricken off by the court.</p> <p>Note. — By virtue of the act of February 24, 1806, the prothonotary may enter judgment upon a note confessing judgment, though no warrant of attorney to appear and confess is included. Burgunder v. Lederer, 12 Pa. Co. Ct. 222; Ely v. Karmany, 23 Pa. 314; Moore v. Hutchinson, 1 Phila. 377. But a mere authority to record thejinstrument according to law, is not sufficient. Babe v. Heslip, 4 Pa. 139.</p>

Certiorari sur appeal from a decree of the Common Pleas of Franklin Comity dismissing exceptions and confirming the report of the auditor to make distribution of the proceeds of a sheriffs sale. In proceedings by scire facias to foreclose a mortgage the real estate covered by the mortgage was sold by the sheriff for $2,250, and O. C. Bowers, Esq., was appointed auditor to make distribution.

The following facts appeared before John P. Sipes, auditor to distribute the fund: On June 6, 1885, the sheriff of Pulton county sold at public sale a tract of land as the real estate of W. L. Moseby, for $2,000, which is the fund in court for distribution.

<p>Error to the Common Pleas of Warren County to review a judgment on a verdict for the plaintiffs in an action of assumpsit.</p> <p>This was an action of assumpsit by Charles P. Henderson and Anna M., his wife, in right of the wife, against Florence M. Buck, executrix of E. E. James.</p> <p>At the trial before Brown, P. J., the following facts appeared :</p> <p>Susanna E. James died in 1860, intestate, leaving one child, the plaintiff Anna, then a minor, and a husband, E. E. James, the defendant’s testator. The real estate which Mrs. James owned at her death was sold by order of court. The proceeds were given to the guardian of the plaintiff Anna and were by him invested, in 1865. Before investing the money he went to Mr. J ames and asked him if he thought government bonds a safe investment. According to the guardian’s testimony Mr. James said: “He did not care what I put it into; he was not going to have anything to do with it; that he never would touch the money; it was for Anna. He said he had plenty to live on himself and he did not care for it; that it was Anna’s money. I might do w’hat I pleased with it.” He never thereafter claimed an interest in the money, nor did he exercise any control over it while it remained in the hands of the guardian. He nearly always stopped to see the guardian when in the neighborhood and asked how he was getting along with Anna’s money.</p> <p>The guardian offered Hie interest of the money to Mr. James twice, but he said he would not take it, that it was Anna’s money. The interest accumulated until 1879 when Mr. James wrote to the guardian as follows:</p> <p>“My Dear Sir: Tour favor received. While I was much pleased to hear from you and my old Honeybrook friends, you did not give me a definite answer to my inquiry as to how much money was due Anna. I had hoped (and having,unlimited confidence in vour honor and integrity) that you would annually apply interest to principal, thus compounding the interest. This was, perhaps, asking too much, and there may have been times when there may have been difficulties in getting 6 per cent. I would say of this accumulated interest, I could invest all or a part for Anna, with good and safe security, to realize 10 per cent, either on the first of April or May. Please give me a definite and full statement of the account, and whether I may secure an investment for all or part of said interest.”</p> <p>In pursuance of this letter the guardian turned over to Mr. James the whole of the accumulations — according to his testimony — to invest for Anna.</p> <p>Afterward, in July, 1879, Mr. James visited his daughter at her uncle’s and said the guardian did not appear to want to put her money out, and he did not want it to lie idle. At the time of this visit he told neighbors that he had given the money to Anna, and it was at the same visit he told his brother that he would invest this money for Anna; that he could get 10 or 12 per cent interest for her, and after receiving the last of the money he wrote to his brother: “I have nearly $2,000 of Anna’s money that I got from Morton (the guardian) last August.” This was one month before his death in January, 1880.</p> <p>In 1881 the plaintiff Anna became of age, received the principal from her guardian, gave him a release, and brought this suit against her father’s executrix to recover the accumulation of interest, on the ground that he had given it to her.</p> <p>The court charged, inter alia., as follows:</p> <p>“In order to make a valid gift it must go into immediate effect. There must not only be the purpose and intention to give, but that intention must be carried into effect by Mr. James in his lifetime parting with all dominion and control over the subject matter, and vesting the same in his daughter, the alleged donee. It makes no difference how strong or how fixed was the purpose of Mr. dames to give this money to his daughter at some future time, or how many times he had declared to third persons he had so given it, provided you find, from all the evidence, that there never was a time in his life when he did actually consummate the gift by surrendering all dominion and control over the money. You come to that single question of fact, which you are to determine from the whole evidence, and upon which we can throw no particular light. . . .</p> <p>“ [It is for you to take all the evidence and say whether there was a time, in the lifetime of Mr. James, when he consummated a gift of this money to his daughter, parted absolutely with all control and dominion over it, with intention to vest tbe dominion and control, as against himself, absolutely in his daughter. If there was, then his estate ought to respond, and you ought to give a verdict for the amount claimed with the interest.] If there was not, then your verdict ought to be in favor of the defendant”</p> <p>Verdict and judgment were for the plaintiff; whereupon, the defendant took this writ, assigning as error: The part of the charge included in brackets; the refusal of the court to give binding instructions for the defendant, and the refusal of the court to charge that the release of the plaintiff Anna to her guardian was, in the absence of fraud, accident, or mistake, a bar to the action.</p> <p>— There is in the case no sufficient evidence of an executed gift.</p> <p>A gift is not executed so long as the donor retains any control over it. Withers v. Weaver, 10 Pa. 391; Linsenbigler v. Gourley, 56 Pa. 166, 94 Am. Dec. 51; Pringle v. Pringle, 59 Pa. 281; Fross’s Appeal, 105 Pa. 261.</p> <p>The declarations to establish a husband’s disclaimer of his wife’s chattels must “be deliberate, positive, precise, clear, and consistent with each other; not inconsiderate, vague, or discrepant.” Be Gray, 1 Pa. St. 329.</p> <p>In Madeira’s Appeal, II W. N. O. 202, 2 Cent. Rep. 313, 4 Atl. 908, it is said: “The legal requisition is that the intention of the donor be established by clear and precise evidence, and that the delivery be secundum subjectam materiam.”</p> <p>See also Herr’s Appeal, 5 Watts & S. 494; Dross’s Appeal, 105 Pa. 258; Bond v. Bunting, 78 Pa. 210; Scott v. Lauman, 104 Pa. 593; Williams’s Appeal, 15 W. N. C. 89.</p> <p>Mr. James could not give his estate in the money in the guardian’s hands except by a writing. The act of April 18, 1853, Purdon’s Digest, p. 1460, § 7, makes the proceeds of the sale of the real estate by the trustee real estate. Holmes’s Appeal, 53 Pa. 339.</p> <p>There must be a consideration besides love and affection to support a trust. Trough’s Estate, 75 Pa. 118.</p> <p>Equity carries the doctrine of nudum, factum farther than even the law does. Dennison v. Goehring, 7 Pa. 178, 47 Am. Dec. 505.</p> <p>Where there has been no deceit or unfair practice, and the party may with a good conscience retain the money,- he cannot in an action of assumpsit on the common counts be compelled to pay it back, even where he could not at law have recovered it originally. Deysher v. Triebel, 64 Pa. 386; Irvine v. Hanlin, 10 Serg. & E. 219 ; Mann’s Appeal, 1 Pa. St. 29; Hinkle v. Eichelberger, 2 Pa. St 484. ....... .......'</p> <p>— It is not a question whether the father might not have adopted some other mode of renouncing all dominion and control which would have furnished better evidence against himself, but whether all these circumstances are not sufficient to go to the jury and to justify their verdict.</p> <p>But suppose the jury did not find that the sum of all these circumstances, acts, and declarations, quite fulfilled the requirements of the law. They at least had the right to them as lights, by the aid of which they could examine subsequent acts of the father, all in the same general line, to see whether, as thus illuminated, the evidence satisfied them that he afterwards made another and more successful effort to give to his daughter the fruit of her mother’s estate. Madeira’s Appeal, 17 W. N. C. 202, 2 Cent Eep. 313, 4 Atl. 908.</p> <p>Our evidence was sufficient to go to the jury, even had we not shown that the donor and donee were together. Grangiae v. Arden, 10 Johns. 293.</p> <p>To make a valid gift inter vivos there must be a delivery with the intention of making a gift, but no form of words is necessary to be observed at the time to constitute a good gift. If the circumstances clearly evince the intention it is sufficient; and if these are equivocal, an explicit declaration afterward of that intention is competent. Minchin v. Merrill, 2 Edw. Oh. 333; Doty V. Willson, 47 N. T. 580; Trow v. Shannon, 78 N. T. 446.</p> <p>Declarations of the husband when receiving the wife’s money or choses in action, or afterwards, clearly evincive of his intent at the reduction into possession, are sufficient to repel the presumption of personal acquisitions and establish the relation of trustee for the wife. Moyer’s Appeal, 77 Pa. 482; Malone’s Estate, 37 Phila. Leg. Int. 63, 38 Phila. Leg. Int. 303. See Hackney v. Yrooman, 62 Barb. 666; Be Gray, 1 Pa. St. 327; Wesco’s Appeal, 52 Pa. 195.</p> <p>It is not necessary that witnesses shall have seen actual delivery take place. The bond or the note or the policy may have been, at the time, already in the custody of the donee; and in such case, words indicating that the donor renounced all ownership would undoubtedly be sufficient. Malone’s Estate, 37 Phila. Leg. Int. 63; 38 Phila. Leg. Int. 303; Wing v. Merchant, 57 Me. 387.</p> <p>So, as was said by Lord Bomiley, in Morgan v. Malleson, L. B. 10 Eq. 475, cited by Judge Hare, in Bond v. Bunting, 78 Pa. 210 : “If the donor had said, T undertake to hold the bond for you,’ that would have been a declaration of trust, though there had been no delivery.” See also Helfenstein’s Estate, 77 Pa. 331, 18 Am. Bep. 449.</p> <p>The delivery may be proved by the declarations of the donor, just as the gift itself may be; and when the donor declares that he had given at a previous time, and that the donee had then become the owner, it is implied that the delivery, and indeed every other formality necessary to create a complete gift, had taken place. The law always presumes knowledge of its requirements. Malone’s Appeal, 38 Phila. Leg. Int. 303.</p>

The questions in this case arise out of the facts stated in the case of Shebel v. Bryden, 114 Pa. 147, 4 Cent. Pep. 664, 6 Atl. 905. Bryden stated an account as trustee, which was excepted to by appellants and referred, by agreement of counsel, to William S. McLean, as auditor, to pass upon the exceptions and report distributions.

<p>Error to the Common Pleas of Warren County to review a judgment on a verdict for tbe plaintiffs in an action of trover.</p> <p>This was an action of trover by W. A. Wade and Ella A., his wife, in the right of the wife, against Hiram E. Andrews for a lot of lumber. The defendant pleaded not guilty.</p> <p>At the trial before Taylor, P. J., the following facts appeared :</p> <p>In March, 1865, L. D. Wetmore conveyed to Amos E. Eoss a tract of land, reserving “all the pine and hemlock timber growing on said land.” The plaintiff Ella A. Wade succeeded to Eoss’s title. In 1877 she took pine logs cut from the land to the defendant to be sawed at his mill.</p> <p>Before the logs were sawed the defendant received notice from the Great National Petroleum Company forbidding him to deliver the logs or lumber to the plaintiff. The company claimed the logs under a deed of the timber on the tract from Wetmore to its grantor in May, 1865. Between that date and the transfer of Eoss’s title to the plaintiff, the owners of the timber on the tract had cut and removed all the merchantable timber. The logs in question were “second growth.”</p> <p>The defendant sawed the logs and, ignoring the plaintiff’s title, bought the lumber from the company. Upon the defendant’s refusal to deliver the lumber the plaintiffs' brought this suit.</p> <p>The court charged, inter alia., as follows:</p> <p>“[Now as to the character of this timber, under the reservation in the deed, we instruct you that the character of the timber trees which were reserved under that clause in the deed was such trees as were at that time fit for mechanical purposes, for commerce or marketing, or for anything that people used timber for, every tree of pine and hemlock that was large enough at the date of that deed to be used for any mechanical purpose, using as a man usually uses timber or lumber made from timber trees.] The word ‘growing,’ used in this reservation, we will construe as meaning living trees. And by that reservation the owner of the soil would have the right to take any dead trees that were upon the land, under the' construction which we give it, while the word ‘growing’ meant those trees that were living, in our opinion, and the ‘timber trees’ were such as were at that time fit for use.</p> <p>“[.Whatever trees were not fit, at the date of the deed of Eoss, for timber to be used 'in some way, and afterwards they grew up to become timber trees, and if you find the defendant converted them to his own use, as there is no controversy here about that, that he did convert them, you should find a verdict for the plaintiff for the value of this lumber] at the time when it was demanded, deducting $2.50 per thousand for sawing the same; to which you might add interest from the time of the demand and refusal.</p> <p>“The burden of proof is upon the plaintiffs to satisfy you that their theory is the correct one. If you find from the evidence that the trees that he cut there were timber trees at the time when this deed was executed, and not such as had grown into trees during the ten or eleven years, your verdict should be for defendant.”</p> <p>The defendant ashed the court to charge: “That the logs having been hauled by the plaintiff and delivered to the defendant at his mill for the purpose of being sawed into boards, and the defendant having sawed them into boards at his mill, and the boards being in his possession, he had a lien on the boards for the amount of a reasonable compensation for the sawing, and he had a right to retain possession thereof until paid or tendered the compensation for sawing.”</p> <p>To which the court answered: “As an abstract proposition of law, this point is affirmed; but with reference to the evidence in this case, if the jury find from the evidence that at the time demand was made and a refusal to deliver, the defendant had either so^d the lumber or claimed that he had bought the same from another and claimed the property as his own, and, without making any claim for compensation for sawing, defends upon a claim of title adversely to the plaintiff and derived from another source, the plaintiff might recover without a tender if the other facts in the case would warrant a recovery.”</p> <p>Verdict and judgment were for the plaintiffs; whereupon, the defendant took this writ, assigning as error the portions of the charge inclosed in brackets and the answer to his point.</p> <p>— The defendant had a lien on the lumber for the reasonable price for its manufacture as against the plaintiff, and he can retain the lumber until the amount for which he has a lien is paid' or tendered. Pierce v. Sweet, 33 Pa. 151; Mathias v. Sellers, 86 Pa. 487, 27 Am. Rep. 723; Hoover v. Epler, 52 Pa. 524; M’Intyre v. Carver, 2 Watts & S. 392, 37 Am. Dec. 519.</p> <p>The reservation kept in the grantors such a right in the soil upon which the timber was growing as to constitute them tenants in. common with the grantee. They had not only the right to go upon the land to cut and take away the timber proper for the manufacture of boards, but to select such timber and judge of its fitness for the use intended. Wheeler v. Carpenter, 107 Pa. 275.</p> <p>All the timber which is growing upon the land is the grantor’s until he has notice to take it off. The plaintiff is not entitled to the growth after the date of the reservation. Such as became timber before the notice, but was too small at the date of the reservation, did not become the property of the owner of the fee by the subsequent growth. Ibid.</p> <p>In the charge quoted in the fourth assignment the learned judge stated as a fact what was not proven, and about which there was very much controversy touching the conversion wherein he says: “There is no controversy here about that, that he did convert it;” although the instruction was not perhaps technically binding, it misled the jury on the pivotal point in the case. Such has frequently been ground for reversal. Bisbing v. Third Nat. Bank, 93 Pa. 82, 39 Am. Rep. 726; Pennsylvania R. Co. v. Berry, 68 Pa. 272; Nieman v. Ward, 1 Watte & S. 68.</p> <p>—The defendant’s assertion of a title hostile to the title of the plaintiff is inconsistent with a lien in his favor. His lien could only be on her title. And besides, when he converted the property, by such act he parted with his lien.</p> <p>A lien may be lost by setting up a claim hostile to the title of the owner of the goods. Paley, Principal & Agent, p. 147, note; Everett v. Coffin, 6 Wend. 603, 22 Am. Dec. 551; Holbrook v. Wight, 24 Wend. 169, 35 Am. Dec. 607.</p> <p>If the transferee sell the goods, the owner is remitted to his original rights, freed from the lien, and may bring trover against him. Davis v. Bigler, 62 Pa. 251, 1 Am. Hep. 398; Story, Agency, § 367; Paley, Principal & Agent, p. 145, note, citing Nash v. Mosher, 19 Wend. 431. And see Macky v. Dillinger, 73 Pa, 85.</p> <p>The party having a right to timber upon the land of another may be required to take it off after a reasonable time. Boults v. Mitchell, 15 Pa. 364, 371; Saltonstail v. Little, 90 Pa, 422, 35 Am. Bcp. 683.</p> <p>This land had all been cut over before Mrs. Wade purchased it. Having once exercised the right of taking off the timber, it is a fair presumption that the party holding the reservation took all that he regarded as coming within the terms of his reservation.</p>

This was a feigned issue by John Baum, administrator d. b. n. c. t. a. of David Bloom against A. T. Hamilton, executor of Margaret G. Hamilton, deceased, who survived John Hamilton, deceased, to ascertain the consideration of a judgment entered in 1865 upon a note signed by Margaret Hamilton and John Hamilton. The judgment was duly revived by sci. fa. in 1880. In 1884, at the instance of A. T. Hamilton, executor, the judgment was opened and this issue was awarded.

Appeals from decrees of the said court, discharging rules to show cause why the said judgments in ejectment should not be opened or stricken off. Held: the bonds or obligations were simply for the payment of money. Where the right to issue execution upon a judgment depends upon the existence of a fact or the performance of some collateral act, the existence of that fact or the performance of the act must be judicially determined before execution can issue.

Defendant pleaded coverture, “and for further plea she saith that the said pretended indenture of mortgage is not her deed, and that she is not indebted to the plaintiff’s decedent, nor was she so indebted at the impetration of the writ of scire facias.” To this plea the plaintiff replied that the mortgage was given by defendant for the consideration of real estate conveyed to her at the time of its execution.

Certiorari sur appeal from a decree of the Common Pleas of Warren County discharging an insolvent debtor.

Tbe first count of tbe indictment set forth “that John W. Rhoads, druggist, . . . did keep a tippling bouse, without any license so to do first had and obtained according to law; and then and there, without such license, commonly, wilfully, unlawfully, and publicly did sell, utter, trade, and furnish and caused to be sold, uttered, traded, and furnished to (parties named) and to sundry other persons, divers quantities of whisky, brandy, rum, gin, and other spirituous and…

<p>Certiorari to the Common Pleas of' Franklin County to review the record of the court vacating proceedings for the assessment of damages for lands taken for school purposes.</p> <p>The facts are stated in the opinion.</p> <p>The assignments of error were to the action of the court: (1) in allowing the withdrawal of the original petition and the subsequent proceedings in the case; and (2) in ordering the rule for a discontinuance to be made absolute and decreeing that all the proceedings be vacated.</p> <p>—Whenever the board of directors or controllers of any school district in this commonwealth shall be unable to procure an eligible site for the erection of school houses therein, as they may deem expedient, by agreement with the owner or owners of the land, it shall and may be lawful for the board of directors, in behalf of the district, to enter upon and occupy sufficient ground for the purposes, which they shall designate and mark off, not exceeding in any case one acre; and to use and occupy the same for the purpose of erecting thereon a school house, with its necessary or convenient appurtenances; and for all damage done and suffered, or -which shall accrue to the owner or owners of such land, by reason of the taking of the same for the purposes aforesaid, the funds of the district which may be raised by taxation shall be pledged and deemed as security; and it shall and may be lawful for the court of common pleas of the proper county, on application thereto by petition, to appoint a jury of viewers who shall establish and determine the quantity and value of said land so taken, to be used for the purposes aforesaid, and who shall estimate and determine whether any, and if any what amount of, damages has been or may be sustained and to whom payable, and make report thereof to said court; and if damage be awarded and the report be confirmed by the said court, judgment shall be entered thereon. Act of April 9,1867,1 Purdon’s Digest, p. 307, pi. 172.</p> <p>No entry for experimental survey is required for the school board, nor does the act contemplate any. It malíes its selection of a site, determines upon the amount of land required, designates and marks it off, and then proceeds to enter and occupy. It is as absolutely the property of the school district, under the statute, immediately upon its appropriation of it, as it 'would have been had it paid a price agreed upon and taken a conveyance. Payment precedes the appropriation of the land only where the price has been agreed upon; where it cannot be agreed upon, the appropriation is made, leaving the price to be determined according to law. The extent or degree of appropriation is unimportant; it cannot- affect tire principle whether it be simply an entry and marking off, or actual subjection of the property to the proposed improvements.</p> <p>Where a railroad has been located and the land has been taken and appropriated for the public use, the right of the land owner to sue for his damages is complete, and he may recover all which may be caused by the location and the subsequent construction. Wadhams v. Lackawanna & B. E. Co. 12 Pa. 310.</p> <p>The question of damages depends on the taking, that is to say appropriation, of the property to railroad purposes. Heise v. Pennsylvania E. Co. 62 Pa. 72.</p> <p>The appropriation of the land by a railroad company is completed upon the location of the road; and after the assessment of the damages, though the report has not been confirmed, the right of the land owner to the damages is vested, and cannot be devested by an abandonment of the original location. Beale v. Pennsylvania E. Co. 86 Pa. 510.</p> <p>“There is nothing in the letter or spirit [of the acts] which will permit the company to roam at pleasure over a person’s land, changing the route as often as it is dissatisfied with the amount of damages assessed, thereby defeating the action of the court in a case pending. The recognition of such a power would be fraught with too great mischief to be sanctioned by any just rule in the administration of the law.” Beale v. Pennsylvania E. Co. 86 Pa. 510; Neal v. Pittsburgh & C. E. Co. 31 Pa. 20.</p> <p>And of what consequence is it that the cases cited are the cases of private corporations \ How do municipal corporations acquire any higher rights of eminent domain ? Their rights are conferred alike by statute, and neither can acquire any right of eminent domain except for public purposes. It will not do to say that in the one case the right is conferred for purely public purposes, in distinction to the other, because it may result in private advantage. The law makes no distinction of this kind, and the right can be conferred only for public purposes.</p> <p>The security being given in due course of law, the grasp of the owner upon his property is loosened by the Constitution itself ; and consequently the easement acquired passes freed from his power to obtain payment otherwise than upon the bond, and the proceeding by assessment of damages given by the law. Fries v. Southern Pennsylvania li. & Min. Co. 85 Pa. 75.</p> <p>Dillon’s statement of the law amounts to nothing more than that, under the language by which the power to open streets is usually conferred, there may be an abandonment of the proceeding. 2 Dill. Mun. Corp. ed. 1873, § 473, p. 572.</p> <p>In case of a site for a school house, the conditions precedent to the appointment of viewers are: (1), An entry and appropriation of the land; and (2) a failure to agree with the owner as to the price. These must both be affirmed in the petition, and the viewers are appointed to determine the market value of the property taken, not with a view to enable the school board to decide whether the advantage from the proposed improvement will justify the expenditure, but solely to determine what the parties themselves could not decide, viz., what is the fair and honest value of the property taken.</p> <p>—If the right or title, such as the district takes, vests immediately upon the inception of the proceedings, and if the district be held to take the fee, then an abandonment of the proceedings (it might be argued) 'would leave the fee in the school district, and yet defeat the owner of the price.</p> <p>The learned judge below seemed to regard this as a material question and, after a careful examination of it, arrived at the conclusion that the fee passes. In this we think he was in error.</p> <p>“Where the purposes for which the land is to be taken is as well met by construing the authority to warrant the taking of an easement only, as of the fee, the grant, if doubtful, will be construed most favorably for the citizen.” Dill. Mun. Corp. 3d éd. §§ 603, 604.</p> <p>The words of the act of April 9, 1867, are: “It shall and may be lawful for the board of directors, on behalf of the district, to enter upon and occupy sufficient ground for the purposes . . . and to use and occupy the same for the purpose of erecting thereon a school house,” etc. If the legislature intended the fee to pass it would not have stopped at granting the simple right of “use and occupancy;” and we submit that these words are not sufficient to confer the right to take the fee.</p> <p>Again; the statute gives to the owner only damages, not the price and value of the land.</p> <p>In Long v. Fuller, 68 Pa. 170, it w’as held by the court below that the school district takes only an easement under the act of 1867. The judgment was affirmed by this court, but that question was not referred to in the opinion.</p> <p>Municipal corporations may, at any time before taking possession of the property under completed proceedings or before the final confirmation, recede from or discontinue the proceedings they have instituted. This may be done, unless it is otherwise provided by legislative enactment, at any time before vested rights in others have attached. Dill. Mun. Corp. 3d ed. §§ 608 et seq.; Be Anthony Street, 20 Wend. 618, 32 Am. Dec. 608;, Martin v. Brooklyn, 1 Hill, 545; Be New York, 18 Johns. 506; Be Military Parade Ground, 60 N. Y. 319; Pumphrey v. Baltimore, 47 Md. 145, 28 Am. Eep. 446, and many other cases.</p> <p>Unless otherwise provided by statute, the proceedings may be discontinued by the municipality at any time before the title is acquired. State ex rel. McClellan v. Graves, 19 Md. 351, 81 Am. Dec. 639.</p> <p>A long series of decisions has established that in these street cases the corporation may be permitted to discontinue proceedings at any time before . . . the report of the commissioners is finally confirmed, and there is a final award in the nature of a judgment in favor of the property owners for their compensation. Be Washington Park, 56 N. Y. 144.</p> <p>Where the power of eminent domain is conferred upon a merely public agent, and the compensation to be made is to be ascertained by another body, as commissioners or a jury, the agent has an election whether to pursue or abandon the condemnation, after the price is fixed, unless a contrary legislative intent is clearly indicated. State ex rel. Mabon v. Halsted, 39 N. J. L. 640.</p> <p>A city may revoke ordinances establishing new streets before they are opened, if, in the exei-cise of its discretion it ascertains that the opening of them would be injurious to the public interest. Municipality No. Three v. Levee Steam Cotton Press Go. 7 La. Ann. 270. See also Reg. v. Woods & Forests Comrs. 15 Q. JB. 761; Jacob’s Fisher’s Dig. 11179.</p> <p>The mere laying out streets, etc., for a city, under the act of June 16, 1836, and its supplement, or under the general road law, is not of itself a taking of the property of individuals by the right of eminent domain, recognized in the Constitution ; and it is only when they are actually opened and applied to public use that the owners are entitled to receive compensation. Be Pittsburgh, 2 Watts & S. 320.</p> <p>In Yost’s Report, 17 Pa. 531, the difference between public and private corporations in matters of this kind is insisted upon, where it is said that private corporations exercise their privilege for their own advantage, the public advantage being only an incident.</p> <p>The case of Peale v. Pennsylvania R. Co. 86 Pa. 509, is not in point and does not rule the case at bar: 1. That was a case of a private corporation taking land for its own private benefit; whereas, this is a case of a public agent acting in behalf of and for the good of the public alone. 2. In that case there was no effort to discontinue or withdraw the proceedings, nor even to amend them, which this court intimated might properly have been done. The only question before the court there was the sufficiency of an exception to the report of viewers, filed on behalf of the railroad company.</p> <p>This exception, it should be observed, was not taken to any act or omission or irregularity on the part of the viewers, but was based upon the act of the railroad company itself, viz., an alleged change of route. This, we submit, was not the subject of exception on the company’s-part, and could only have been reached by a motion to amend the proceedings or to withdraw them, with a view to beginning do novo. The exception was declared insufficient; but the question at issue here did not and could not arise in that case.</p>

<p>The first five sections of the act of March 18, 1875, are unconstitutional, under article III, § 3, of the Constitution.</p> <p>Note. — This case raised the same questions as, and is ruled by, Scranton School Dist.’s Appeal, 113 Pa. 176, 4 Cent. Hep. 311, 6 Atl. 158.</p>

<p>A devise of land, -without words of limitation, to a married daughter, followed by the words “and I hereby authorize and empower her to sell and dispose of the same as she may think proper, but in ease of her death and the property as aforesaid remaining unsold, then it is to be equally divided among her children share and share alike as they arrive at the age of twenty-one,” and in the light of other clauses in the will, gives to the daughter a life estate in the land and a power to appoint, by way of sale or otherwise, to other uses than those specified hy the will.</p> <p>A deed of conveyance of the land in fee simple, without the joinder of the husband, is a valid execution of the power.</p> <p>Note. — So a married woman may exercise a power of appointment by a, will executed during coverture. Drusadow v. Wilde, 63 Pa. 170; Barnes v. Irwin, 2 Dali. 199, 1 L. ed. 348, 1 Am. Dec. 278.</p>

<p>Error to the Common Pleas of Schuylkill County to review a judgment on a verdict for defendant in an action on the case.</p> <p>On December 9, 1874, Morgan W. Eehr, the defendant in error, by agreement in writing under seal with Charles Graver, trustee fbr Malinda Graver, his wife, sold a house and lot in Tremont, Schuylkill county, for $1,400, payable in yearly instalments of $25 and $50 each, with 8 per cent per annum interest. The agreement provided that on failure to pay the instalments as stipulated, the defendant in error might be considered and treated as tenant at will.</p> <p>It was alleged on the part of the plaintiff in error that, subsequently to this agreement, it was discovered by Mrs. Graver, the cestui que trust, that the property was unfit for the use for which it was purchased, to wit, a hotel, and that thereupon an oral agreement was entered into that she should build a large addition to the property, and make other needed improvements, and should pay the costs and expenses thereof first, and after-wards pay the consideration expressed in the written agreement.</p> <p>The defendant in error on November 7, 1877, instituted proceedings for possession under the landlord and tenant act of April 14, 1863 (Purdon’s Digest, 832, pi. 20), before a justice of the peace, obtained judgment thereon, and ejected plaintiff's in error from the premises.</p> <p>Upon unfit of error to the supreme court, it reversed the proceedings (89 Pa. 463) on the ground that the justice had no jurisdiction.</p> <p>The plaintiff in error then applied in the court below and in the supreme court for a writ of restitution, but it was denied.</p> <p>On December 28, 1880, this action was brought. The cause of action as set forth in the declaration is stated in the opinion of the supreme court.</p> <p>At the trial of the case, before Green, J., the plaintiff in error undertook to prove the parol contract, the improvements made thereunder, and the manner of its violation.</p> <p>The defendant in error denied the parol agreement and offered evidence to reduce the value of the improvements made. The court below took the case away from the jury and directed a verdict for the defendant, charging, inter alia, as follows:</p> <p>“Another fact, which is undisputed in this case, would go to show that the party did not act without having probable cause, in this: that for the purpose of gaining possession of this property, he instituted his proceedings before a justice of the peace; that the parties were summoned before the justice of the peace; that there was a hearing before the justice of the peace; and that the justice of the peace rendered a judgment in the case; and that after the justice of the peace had rendered judgment, it was not until then, this process was issued for the purpose of dispossessing Graver, and putting Dehr in possession of this property. That fact, we say, unless it should be denied, would be conclusive, we think, of the fact that there was probable cause for the issuing of this writ; the fact that a judgment was obtained before a disinterested party, a justice of the peace, after a hearing of the parties, wdien there was no evidence at all to show' any collusion between the justice and the plaintiff in the case, whereby he was to render a judgment for the purpose of ousting the party from the possession of this property. We say that woukl have been the state of facts if this proceeding that we have been trying here were simply an action for malicious prosecution; but .instead of that you have a proceeding here for a breach of contract, which the party would be authorized to bring, because he would have the right to waive the tort, that is, to waive the wrong, to waive the trespass that he had committed, and pioceed for damages by reason of the breach of the contract or agreement made between these parties. But for the purpose of showing the damage which he sustained by reason of this breach of contract, he has shown the fact that all the damage that he sustained was by reason of being put out of possession of this property by the constable, upon the judgment which had been rendered by the justice of the peace, and a writ of dispossession being put in the hands of the constable for the purpose of putting Graver out of possession, and putting Fehr in. We say, you have that fact in evidence in this case; and that being the fact, we say to you that there could be no recovery for damages by reason of such an injury as that, unless the plaintiff in the case shows that that damage was done maliciously, and for want of probable cause. That is to say, he would be compelled to make the same proof in this case, as if the action had been one for malicious prosecution. He has not made that proof. . . . He has not shown that fact, but we say to you that it was as necessary to show that fact in the present case as if the proceeding had been one for malicious prosecution. That fact not having been shown, as it was necessary to show, and those being the only damages which have been shown in this case, or the only injury which the plaintiff in this case sustained, that is, by reason of the dispossession of him from this property, we say that the plaintiff has not made out his case and that the defendant is entitled to a verdict at your hands.” First assignment of error.</p> <p>The court refused to charge the jury as follows: “'That the process that was issued for the possession of the premises was unwarranted and illegal and was employed to attain an unlawful object, not the purpose which it is intended by the law to effect; and therefore it was a malicious abuse of process on the part of the defendant, and mulcts him in vindictive damages.” -Fourth assignment of error.</p> <p>— Wherever a man does an act which in law and in fact is a wrongful act, and such an act as produces injury to another and which did produce injury, an action on the case will lie for damages for said injury. Ashby v White, 2 Ld. Raym. 938, 1 Smith, Lead. Cas. 342; Upton v. Vail, 6 Johns. 181, 5 Ana. Dec. 210; Griffeia v. Farwell, 20 Vt 151; Pasley v. Freeanan, 3 T. R. 63; Sheldon v. Fairfax, 21 Vt. 102; Lang-ridge v. Levy, 2 Mees. & W. 519; Weatherford v. Fishback, 4 Dl. 170; Pond v. Hilton, 44 N. C. (1 Busbee, L.) 308, 59 Am. Dec. 552; Googins v. Gilmore, 47 Me. 9, "74 Am. Dec. 472.</p> <p>For every breach of contract the law implies damages, of the aneasure of which the jury under the superintendence and control of the court is judge. Holler v. Weiner, 15 Pa. 242.</p> <p>If the defendant took illegal measures to recover possession, he was guilty of a malicious abuse of process, and is liable to be mulcted in vindictive damages. Mayer v. Walter, 64 Pa. 283.</p> <p>It was the duty of the court to leave to the jury for their determiaaation the amount of damage suffered by the plaintiff in consequence of the breach of contract; and if the jury found that he, Fehr, was guilty of outrage and oppression in his proceedings to recover possession of the premises, then the jury would have had the right to award vindictive damages. Sedgw. Damages, 573; Berry v. Fletcher, 1 Dill. 67, Fed. Cas. No. 1,-357; Day v. Woodworth, 13 How. 863, 14 L. ed. 181.</p> <p>Malice may be inferred from the want of probable cause. Pangburn v. Bull, 1 Wend. 345; White v. Tucker, 16 Ohio St. 468; Ammeriaiaaa v. Crosby, 26 Ind. 451; Cooper v. Utterbach, 37 Md. 282; McKown v. Huaater, 30 N. Y. 625; Willans v. Taylor, 6 Bing. 183; Olosson v. Staples, 42 Vt. 209, 1 Am. Rep. 316; Purcell v. Macnaanara, 9 East, 361; Mowry v. Whipple, 8 R. I. 360; Harpham v. Whitney, 77 111. 32; Merriaan v. Mitchell, 13 Me. 439, 29 Am. Dec. 514; Dietz v. Langfitt, 63 Pa. 234; Schofield v. Ferrers, 47 Pa. 194, 86 Am. Dec. 532; Paukett v. Livermore, 5 Iowa, 277; Harkrader v. Moore, 44 Cal. 144; Holliday v. Sterling, 62 Mo. 321; Savil v. Huberts, 1 Salk. 14, 15; Ewing v. Sanford, 19 Ala. 605.</p> <p>— The plaintiffs were estopped from denying the existence of a probable canse of action, by the fact that a judgment was rendered against them by the justice. Herman v. Brookerhoff, 8 Watts, 240.</p> <p>Probable cause being a question of law, it is error to refuse to give binding instructions to the jury. Fisher v..Forrester, 33 Pa. 501; Walter v. Sample, 25 Pa. 275; Laughlin v. Clawson, 27 Pa. 828.</p>

<p>To entitle one to a reward offered for tlie arrest and conviction of a criminal, it is necessary that the claimant should he principally instrumental in securing the arrest and eonvietion. It is not sufficient that he was only an instrument in the hands of others.</p> <p>A party who, at the request of another, joins in the pursuit of a criminal and identifies Mm and afterwards testifies in court is not, without more, entitled to a reward.</p> <p>Note. — Where the reward is offered for the “capture and delivery” of an escaped prisoner, it is not sufficient for the plaintiff to show that he furnished information as to the location of the fugitive, and was one of the sheriff’s assistants in making the arrest. Juniata County v. McDonald, 122 Pa. 115, 15 Atl. 696.</p>

<p>Where a private banking company assigned its property for the benefit of creditors, including a judgment against plaintiff in error, the judgment will not be opened, on his application, in order to permit a set-off by him of a demand against the banking company which he did not acquire until after the assignment.</p> <p>It was necessary for the plaintiff in error, in order to open the judgment and set off the demand, to show affirmatively that he was the bona fide holder of it for value prior to the delivery of the deed of assignment.</p> <p>Where the acquisition of title to the demand and the creation of the trust for the benefit of creditors both occurred on the same day, plaintiff in error can show which event was first in order of time.</p> <p>Note. — Where claims against an assignor are sought to be set off as against an assignee for the benefit of creditors it must appear that the claim is bona fide (Jordan v. Sharlock, 84 Pa. 366, 24 Am. Rep. 198) ; and was due to the holder prior to the assignment (Haver v. Lancaster County Nat. Bank, 3 Lane. L. Rev. 52; Chipman v. Ninth Nat. Bank, 120 Pa. 86, 13 Atl. 707) ; unless he can prove that the assignor is solvent. Nesbitt v. Dodson, 3 Kulp, 516.</p>

<p>Under a residuary devise “to my said beloved wife (naming her) for the term of her natural life; and upon the decease of my said wife, I do order and direct that all the said residue and remainder of my estate be sold by my executor; and after paying the aforenamed bequests, it is my will, and I do order, that the moneys arising therefrom and so remaining shall be divided among my children [naming seven of his nine children] share and share alike; and, if any of my last-named children be deceased, leaving issue, then it is my will that the share the parent would have been entitled to if living shall go to such issue,” — the children take vested remainders in fee at the death of the testator, his wife surviving.</p> <p>Note. — As to rights of tenants in common as to each other in general, see the following editorial notes presenting the authorities on their respective subjects: Eight to injunction against each other, note to Museh v. Burkhart, 12 L. E. A. 484; purchase of adverse title by one, notes to Barnes v. Boardman, 9 L. E. A. 571, and Eobinson v. Lewis, 10 L. E. A. 101; trust relation, note to Musch v. Burkhart, 12 L. E. A. 484; liability of cotenant to account for use and occupation and rents and profits, note to Gage v. Gage, 28 L. E. A. 829; liability of cotenants for improvements and repairs, note to Ward v. Ward, 29 L. E. A. 449; liability of tenant in common to action of trover, note to Waller v. Bowling, 12 L. E. A. 261.</p> <p>A tenant in common, acting as attorney in fact for his cotenants in the collection of rents, etc., may purchase for himself the share of a cotenant.</p> <p>The other eotenants cannot claim the benefit of the purchase, — especially after notice to elect and pay, and failure to do so within a reasonable time.</p>

4, of Philadelphia County to review a judgment on a verdict for the defendant in an action of replevin. This was an action of replevin by Prank EL Ward against the city of Philadelphia, for goods belonging to him distrained by the defendant for rent alleged to be due. Upon avowry by the defendant the plaintiff pleaded non demisit and non tenure.

Abraham Shipman was appointed by the last will and testament of J esse M. Simpson as executor of the will, and guardian of Mary V. Simpson, the only child of the testator. Held: The mere determination of the executor in his own mind to appropriate property or securities in his hands as such to himself as trustee under the will is not such a setting apart as will discharge him as executor and charge him as trustee.

<p>Error to the Common Pleas of Warren County to review a judgment on a verdict for the defendant in an action of covenant upon a policy of fire insurance.</p> <p>The facts, as they appeared at the trial before Brown, P. J., are stated in the charge as follows:</p> <p>On the 12th day of April, 1883, the plaintiff, William White, obtained a policy of insurance from the defendant, insuring property that belonged to him, consisting of patterns, tools, shafting, machinery, etc., belonging to a foundry, against loss by fire. About a month after the insurance was effected the premises burned, and the property of plaintiff was destroyed. A portion of it, at least, was destroyed or injured. By an arrangement between the plaintiff and the defendant, which had reference only to the actual amount of the loss, it was determined that the amount was $448.</p> <p>The defendant now makes defense, alleging that, under the terms of the policy of insurance, this contract of insurance was void. That is based upon this provision in the policy, which we say to you was part of the contract between the plaintiff and the defendant: “If in said premises there be kept gunpowder, fireworks, nitroglycerine, phosphorus, saltpeter, nitrate of soda, petroleum, naphtha, gasoline, benzine, benzole, or benzine varnish, or there be kept or used therein eamphene, spirit gas, or any burning fluid, or any chemical oils, without the written permission in this policy (except the use of refined coal, kerosene, or other carbon oil for lights, if the same is drawn and the lamps filled by daylight), then and in every such case this policy shall become void.”</p> <p>Parties who come into court basing their rights upon a contract have a right to recover only upon the strength of that contract. And if it be that the facts in this case show that the plaintiff, in violation of the terms of the policy of insurance, has kept petroleum upon the premises in which the property insured was contained, then the policy is void.</p> <p>The evidence is that, from the making of the policy of insurance down to the time of the fire, a barrel of petroleum was kept within a distance of from 5 feet to 6 feet of the boiler that propelled the engine used in the foundry; that it was kept outside of the building itself, in a shed adjoining the building, the wall or side of which formed one side of the shed; that, by a pipe connected with the barrel, the oil was conducted to the fire pan under the boiler.</p> <p>This use appears from the evidence to have been habitual</p> <p>[It seems to us that the storing of this oil, although it may have been outside of the building, it being in a shed adjoining and connected with the building, is to be taken as a part of the building itself, and so made by the insured; but, whether this be so or not, according to the undisputed evidence, there was a continuous and habitual use of the oil, and the habitual keeping of it in the pipe, at least, that led from the barrel to the fire box and upon these premises.]</p> <p>While it would please us much better to have before us a ease where the plaintiff would be entitled to indemnity for his misfortune, it is our duty to lay down the law to you as we consider it to be.</p> <p>[Taking the stipulation contained in this policy, we cannot regard it as anything other than an agreement on the part of the plaintiff that if, in said premises, there be kept petroleum, then this policy shall be void; and we cannot, under the evidence, come to any other conclusion than that the plaintiff did keep petroleum in the premises. Although we are reluctant to take this view of it, we deem it our duty to say to you that the plaintiff is not entitled to a. verdict.]</p> <p>The verdict and judgment were for the defendant; whereupon, the plaintiff took this writ and assigned as error the portions of the charge enclosed in brackets.</p> <p>— The first clause of the condition prohibits certain articles to be kept in the premises, among which is petroleum. The second clause prohibits certain articles to be kept or used. The use of petroleum is not prohibited in the terms of the second clause. Having used the term “petroleum” in the first clause, if it had been intended to include petroleum in the second clause, as one of the articles the use of which was prohibited, the term “petroleum” would have been used. Hears v. Humboldt Ins. Co. 92 Pa. 15, 37 Am. Hep. 647.</p> <p>Not being prohibited, its use was permitted for such purposes as were incident and necessary to carry on the business insured; and the storage in a barrel outside the building, with a pipe leading into the building, under the boiler, to hold and conduct the oil to the fire, was absolutely necessary and incident to its use, and not a keeping of petroleum in the premises, within the prohibitory terms of the policy. Birmingham F. Ins. Co. v. Ilroegher, 83 Pa. 66, 24 Am. Pep. 147; Grandin v. Rochester German Ins. Co. 107 Pa. 26; Citizens’ Ins. Co. v. McLaughlin, 53 Pa. 485; Harper v. New York City Ins. Co. 22 N. Y. 443.</p> <p>— The prohibition being general that petroleum shall not be kept on the premises, the exception for its use should be equally broad. There is no clause which permits it to be used as fuel; and the use of it for light is coupled with stringent restrictions.</p> <p>Birmingham F. Ins. Co. v. Eroegher, 83 Pa. 64, 24 Am. Pep. 147, rules this case. The assured kept a barrel of petroleum on the premises for use in lighting his store and for retail sale; and it was held that the policy was void, and that the knowledge of the agent of the in .surer at the time of the insurance did not affect the condition in the policy. The fact that carbon oil was usually kept in a country store for sale did not avoid the prohibition.</p> <p>To the same effect are Lancaster F. Ins. Co. v. Lenheim, 89 Pa. 497, 33 Am. Pep. 778; Steinbach v. Relief F. Ins. Co. 13 Wall. 183, 20 L. ed. 615; Whitmarsh v. Charter Oak F. Ins. Co. 2 Allen, 581; and Westfall v. Hudson River F. Ins. Co. 12 N. Y. 289.</p>

<p>In an action for damages for a continuing nuisance (here, the interference with the natural How of water by the maintenance of a dam), plaintiff may, under the act of May 2, 1876 (P. L. 95), permitting the recovery of damages up to the day of trial, give in evidence the condition of the obstruction up to the day of trial, including all additions, changes, and repairs made after suit brought.</p> <p>Note. — Any swelling of the stream over the line is an invasion of the rights of the upper owner, who has a right to the stream in its natural condition, which he may protect, not only for present needs, but for possible future ones. It constitutes a direct trespass upon his property, which he may seek the aid of the courts to redress, and he is not bound to show that ho. is specially injured. Earnham on Waters, p. 1767.</p> <p>If the dam or obstructions maintained by defendants caused back water on plaintiff’s land in any degree in the ordinary stages of water or freshets which are to be anticipated, then such dam or obstructions would be illegal, and plaintiff would also be entitled to recover such damages as arose from such dam or obstructions in extraordinary freshets.</p>

This was an action by Gilbert L. Webster against the president, managers, and company of the Delaware & Hudson Canal Company, to… Held: “that the jury might not improperly have found that the expectation of being carried beyond the B. station was reasonably entertained by the plaintiff, and that the inconvenience would have been such as not to render it imprudent on her part to expose herself to the danger incurred in alighting; and that the defendants were therefore…

At the trial it appeared from the testimony for the plaintiff that the certificate of membership in a beneficial society, upon which the suit was brought, was issued by the defendant April 18, 1873, and entitled Mrs. Catharine Barnhart, her heirs or assigns, upon the death of Lewis Bomberger, to $1,000. Catharine Barnhart had no insurable interest in the life of the assured, by relation in blood, connection by marriagte, or as a creditor.

<p>Error to tbe Common Pleas of Lancaster County to review the action of the court in striking off the entry of satisfaction of a judgment, opening the judgment, and entering a second judgment.</p> <p>The facts appear by the opinion of the court below. Livingston, P. J.:</p> <p>On November 22, 1884, George Wm. Kiehl was, in the court of quarter sessions of the peace of Lancaster county, convicted of having wilfully' deserted his wife, Lizzie A. Kiehl, and was sentenced by the court to pay to said Lizzie A. Kiehl the sum of $4 per week for the maintenance of herself and child, and to give bond with sufficient sureties to the commonwealth in the sum of $300 for the faithful performance of said order; and on the same day George Wm. Kiehl and George A. Kiehl, in pursuance of said order, entered into a bond to the commonwealth of Pennsylvania in the sum of $300, for the performance of the said order of court by George Wm. Kiehl. The sum of $4 per week first ordered to be paid, ivas on a subsequent hearing changed by the court to $2 per week, no new bond being asked for or entered.</p> <p>George Wm. Kiehl having failed for some time to pay his wife, Lizzie A. Kiehl, the weekly sum directed to be paid, suit was brought upon the bond to May term, 1885, No. 19, and, in said suit, on June 20, 1885, judgment was asked by plaintiff’s counsel, and entered, for want of an affidavit of defense, against the defendant, for the sum of $34.30, which was, on June 22, 1885, paid to plaintiff’s counsel, who entered satisfaction and released the judgment on the record.</p> <p>By reason of the continuing failure of George W. Kiehl to pay his wife the money he was directed by the court to pay her, another suit was brought upon the same bond to August term, 1885, No. 33, and upon this second suit judgment was asked to be entered for want of a sufficient affidavit of defense, which the court declined to enter, one judgment having already been entered in a suit upon the bond. Plaintiff’s counsel then presented a petition, asking the court to strike off the entry of satisfaction on the judgment to May term, 1885, No. 19, open the said judgment, and enter judgment for $300, being the penalty of said bond; tbe aforesaid judgment having been erroneously entered for less than the penalty of the bond.</p> <p>In Troubat & II. Practice, § 461, it is said that, upon a bond of indemnity, there can be but one judgment against the same party, and that must be for the amount of the penalty, with an assessment of damages upon the breaches assigned.</p> <p>The defendant, however, is accountable only to the extent of the penalty; and, as soon as that is recovered, or, if the defendant choose to pay it into court, the plaintiff can proceed no further, but, on the contrary, may be compelled to enter satisfaction on the record. Id. § 456; 1 Saund. 58a.</p> <p>In Adams v. Bush, 5 Watts, 289, it was held that a bond in a certain penalty, conditioned for the performance of a certain act, at different periods, and with a warrant of attorney to confess a judgment or judgments, after filing one or more declarations, will not authorize the entry of more than one judgment; and no execution can issue until a scire facias shall have issued, and it shall have been ascertained that the act has not been performed, and what damage has resulted from its nonperformance.</p> <p>In Arrison v. Com. 1 Watts, 374, where a bond given by executors, conditioned for the faithful discharge of their duties, in pursuance of an order of the orphans’ court, was sued on by one legatee, in the name of the commonwealth, for his own use, and a judgment was obtained for the amount of the penalty, with the right to take out execution for the amount of his damages, and these damages were paid by the defendant, and the legatee entered satisfaction on the judgment, it was held that such satisfaction extended only to the interest of that legatee, and that a scire facias may be issued upon the judgment, to enable any other of the legatees to recover their legacy, and that a legatee whose legacy did not become due until after the date of the judgment may also maintain a scire facias upon it.</p> <p>In Duffy v. Lytle, 5 Watts, 130, Kennedy, J., says: “According to the course of the common law, no rule seems to be better established than that but one judgment can be had on the same bond, against the same party.” Seeing, therefore, that but one judgment can be entered on the same bond against the same party, and that must be for the amount of the penalty, it is very evident that the plaintiff made a mistake and committed an error in asking and having judgment entered for an amount less than the penalty of the bond; and, as no innocent third party can be affected by having the error corrected, as it of right ought to be, and as a correction will not require the obligors to pay more than by the terms of the bond they were bound to pay, we have decided to strike off the entry of satisfaction, on the docket of the judgment to May term, 1885, No. 19, and to open said judgment, with permission to plaintiff, when the costs in the suit to August term, 1885, No. 33, shall have been paid, and said suit discontinued on the record, to move the court for judgment for the amount of the penalty of the bond, from which, when obtained, shall be deducted the amount paid on the erroneous judgment when satisfaction was entered and a receipt for the amount so deducted placed on record.</p> <p>The assignments of error specified the action of the court:</p> <p>1. In striking off the entry of satisfaction on the docket of the judgment to May term, 1885, No. 19, and in opening of said judgment, with permission to defendant in error when the costs in the suit to August term, 1885, No. 33, shall have been paid, and said suit discontinued on the record, to move the court for judgment for the amount of the penalty of the bond.</p> <p>2. In subsequently entering a second judgment on the suit of May term, 1885, No. 19, for the amount of the penalty of the bond, viz., $300.</p> <p>— The first judgment was regularly entered as a judgment, and afterwards satisfied on the record, long before any application was made to the court to strike off the satisfaction. The power of the court, therefore, over this judgment was exhausted. Tillery v. Clark, 18 Pa. 148.</p> <p>After the end of a term in which the court has rendered judgment on a case stated on a general or special verdict, from which an appeal may be taken, by wwit of error or otherwise, it cannot alter or change it, with a view to correct what the count on further reflection may consider error therein. Stephens v. Cowan, 6 Watts, 511; Smith v. Hood, 25 Pa. 218, 64 Am. Dec. 692.</p> <p>A party who has received the fruits of a judgment cannot reverse it on a writ of error. Smith v. Jack, 2 Watts &■ S. 101.</p> <p>— The old notion, that the record remains in the breast of the court only till the end of the term, has yielded to necessity, convenience, and common sense. The power of the court to amend being established, the conclusiveness of the record as amended follows of course. Rhoads v. Com. 15 Pa. 270.</p> <p>A court of record has power over its own records and proceedings, whether before or after judgment, or to the same or a subsequent term, it being a matter of discretion with the court. Pennsylvania & N. Y". R. & Canal Co. v. Bunnell, 81 Pa. 420.</p> <p>In Crutcher v. Com. 6 Whart. 340, where a judgment by mistake was entered for $1,231.50, when it should have been for $4,669.50, the sujueme court says: “Since the trial, and after writ of error, the district court has amended the record. We do not doubt their power to do so, as between the parties themselves.”</p> <p>There can be no doubt as to the right of the court, to strike off entry of satisfaction. Murphy v. Flood, 2 Grant, Cas. 411; McKinney v. Fritz, 2 W. N. O. 173.</p>

This was an action of debt by John Cattnach, against A. E. Burr, to recover rent reserved in a lease. By consent of the parties the case was referred to S. B. Price, Esq., in accordance with the act of April 6, 1869 (P. L. 725), authorizing the reference of civil actions, and its supplements, the acts of March 23, 1870 (P. L. 540), and June 22, 1871 (P. L. 1363). The facts as found by the referee are fully stated in the opinion.

The facts of the case as they appeared in the court below are sufficiently stated in the charge to the jury by Galbraith, P. J.: Gentlemen of the Jury: The plaintiff claims to be the owner and entitled to the possession of the land described in the writ in this case, which land is in the occupancy of the defendant, David McAllister, who claims, on the other hand, that he is the lawful owner, and entitled to remain in possession as such.

Pleas of Northampton County in favor of complainants in a bill in equity. The facts are stated in the opinion. —As to the statute of limitations, see Bunn’s Appeal, Id W. N. C. 193; Be Glen Iron Works, 13 W.N. 0.387; Wilbur v. Glen Iron Works, 35 Phila. Leg. Int. 346; Be Glen Iron Works, 14 W. N. O. 514; Carrol v. Green, 92 IJ. S. 510, 23 L. ed. 738; Pittsburgh & O. R. Co. v. Byers, 32 Pa. 22, 72 Am.

<p>A judgment is final and conclusive between the parties thereto, as to the facts necessarily adjudicated, and cannot be impeached except for fraud, in a collateral proceeding.</p> <p>Although the record of a judgment is evidence for a particular purpose, yet, if offered, not for that purpose but for other purposes for which it is not admissible, and rejected, such rejection is not error.</p> <p>Although fraud is never to be presumed, but must always be proved, great latitude is allowed in the admission of testimony that may serve to shed light on the alleged fraudulent transaction.</p> <p>Where facts and circumstances proper for the consideration of the jury on the question of actual fraud are testified to by the witnesses, it is error to withdraw that subject from the consideration of the jury.</p> <p>Note. — Por eonclusivoness of judgment, see notes to Howe v. First Nat. Bank, 1 Sad. Rep. 57, and Long v. Trexler, 5 Sad. Rep. 456.</p>

3 of Philadelphia County to review a judgment of compulsory nonsuit. This was an action of covenant brought by Lewis Heck, the lessor, against Eugene Borda, the lessee, for a loss by fire.

November 18, 1885, John B. Hoar died, leaving eight children. Her will, dated December 19, 1881, named William C. Hoar his brother, as executor. Probate thereof was resisted before the register of wills of Lancaster county by a portion of the children, on the ground of want of testamentary capacity.

Nathan Trexler died September 26, 1881. On October 20, 1881, letters of administration were issued to his son, Benjamin B. Trexler, who died April 10,. 1883. Benjamin filed an account December 2, 1882, to which exceptions were filed by the Hamburg Bank and other creditors of Nathan Trexler, February 15, 1883, and by Oliver Trexler, a son and heir of Nathan Trexler on November 15, 1883. By the account filed the estate appeared to be insolvent.

The following facts appeared on the trial before Burst, P. J.: Viewers appointed by court reported that they laid out a public road along and upon the tow path of the plaintiff’s canal. The report was confirmed nisi. Exceptions were filed and argued.

O. L. Mather, being the owner in fee of 10 acres of land in Otto township, McKean County, Pa., on the 1st day of January, 1881, sold the same to N. T. Saunders by a contract in writing of that date, for the consideration of $3,200; $1,066 was paid down, leaving a balance of purchase money, for which judgment was entered June 14, 1882, in McKean county common pleas, in favor of Mather, against Saunders, for $1,979.97, by virtue of a power of attorney contained in said…

The facts are set out in the following opinion of the court by El well, P. J., discharging the rule to take off the nonsuit: This is an… Held: that it did not survive the contract. “The plaintiff,” says the opinion, “sues for damages; he has sold and conveyed the land to another, and if he fails to establish his right to damages, he shall not chop round and recover purchase money.” When the terms and conditions of a resale are more onerous than those of the first sale, the…

Tbe facts are fully stated in tbe following charge to tbe jury in tbe court below, by Sassamaw, J. “This is an action of assumpsit, founded upon several claims, brought by Henry H. Sharman against Reuben E. Addams for tbe recovery of certain moneys. Tbe principal claim is upon a promissory note, dated April 13, 1882, for $163.20, payable in ninety days, with interest.

<p>Error to the Common Pleas of Erie County to review a judg- • ment on a verdict for plaintiffs in an action of covenant.</p> <p>O. H. Orton, G. W. Haverstick, E. A. Bennett, and Henry Cadwell formed a partnership September 1, 1855. On June 1, 1857, the partnership was dissolved. Cadwell took the assets and agreed in writing to settle, adjust, and pay off the indebtedness of the firm and save, indemnify and keep harmless the other members from all suits, etc., arising out of the said copartnership. The firm was at the time indebted to Barnes, Lyman, & Company, who, on. January 6, 1858, recovered judgment against Cadwell, Orton, & Haverstick in tbe circuit court of the United States for the district of Wisconsin; there was no service on Bennett in that suit.</p> <p>On February 13-, 1861, during Cadwell’s lifetime, suit was commenced by Barnes, Lyman, & Company against Bennett, in the Erie common pleas, on the same debt, and judgment was taken against him March 30, 1861; no notice of this suit was given to Cadwell. On July 24, 1868, a sci. fa. to revive this judgment against Bennett was issued, and judgment entered against him, October 29, 1868, and a writ of fi. fa. issued, which was stayed upon Bennett giving his note to J. W. Wetmore, Esq., and an assignment of Cadwell’s agreement; and Wetmore, as attorney for Barnes, Lyman, & Company, receipted for the debt and interest. Bennett never paid the note given to Wetmore, nor any money on it nor upon the said judgment.</p> <p>On December 3, 1860, Barnes, Lyman, & Company took from Cadwell his judgment bond for the amount then due on their judgment recovered in the United States circuit court in AVisconsin, and entered judgment thereon in the common pleas of Erie county; and on October 31, 1864, sold and assigned this judgment to W. W. Lyon, reserving all their rights against the other members of the firm of Haverstick, Bennett & Company, and also reserving all collateral securities held by them for the payment of the debt for which the judgment was obtained. On May 15, 1866, Lyon received and entered satisfaction on the record of said judgment. Cadwell died in 1868, and Lyon died in 1869.</p> <p>After the death of Cadwell, a sci. fa. was issued by Barnes, Lyman, & Company on their judgment against Bennett, who permitted judgment to be taken without giving notice, as defendant alleged, to Heed, executor of Cadwell, that such sci. fa. had been issued; and Bennett, after judgment had been recovered against him in the sci. fa., assigned his contract of indemnity with Caldwell, to Barnes, Lyman, & Company, who brought suit thereon against Beed, executor of Cadwell. The latter defended on the ground that he had had no notice of the pending revival of the Bennett judgment. Plaintiffs, however, alleged that such notice had been given, and in evidence thereof proved certain conversations between Bennett and .Heed, and between Bennett and Mr. Marshall (who was attorney for Cadwell’s estate), as quoted in the opinion of the supreme court.</p> <p>At the trial, before Galbraith, P. J., tbe court admitted in evidence, under objection by defendant, the record of the judgment against Bennett, entered March 30, 1861, and of the judgment upon the sci. fa. thereon. First and second assignments of error.</p> <p>The court admitted under objection tire testimony of Hon. John P. Vincent, who presided at a former trial of the same cause, as follows:</p> <p>Q. From your notes of testimony taken at the first trial, please inform us what Mr. Bennett testified to as to the(notice to W. W. Beed.</p> <p>Objected to, that they are asking him to swear from his notes of testimony; that they are not calling him to answer from his recollection and knowledge, but from his notes of testimony.</p> <p>By the Court: It is refreshing his recollection from his notes of testimony; that is the way it should be put.</p> <p>A. The notes of testimony bring nothing back to me or as to what took place before me, except what is in the notes; independent of the notes, I haven’t any recollection. I could not swear positively without them that he was examined as a witness, although the best of my recollection is that he was.</p> <p>By the Court: I think it is competent.</p> <p>Q. State what he swore to about the notice.</p> <p>A. According to my notes, he swore that before the judgment on the sci. fa. was taken he notified Mr. Heed of the suit.</p> <p>Q. Was that in direct or cross-examination ?</p> <p>A. It appears to have been in cross-examination.</p> <p>The defendant presented, inter alia, the following point:</p> <p>There is no evidence of a legal notice having been served on W. W. Reed, executor of Henry Cadwell, deceased, to defend the suit of Barnes, Lyman, & Company v. E. A. Bennett, in 1868.</p> <p>Ans. This is a question for the jury. There is some evidence, but whether enough to satisfy the mind of the jury that W. W. Reed had notice of the scire facias is a question for the jury. Fourth assignment of error.</p> <p>—A notice in legal proceedings means a written notice. Gilbert v. Columbia Turnp. Co. 3 Johns. Cas. 108; Re Cooper, 15 Johns. 533.</p> <p>To be effective, “the notice should be unequivocal, certain, and explicit. A knowledge of the action and a notice to attend the trial will not do, unless it is attended with express notice that he will be required to defend the title.” Paul v. Witman, 3 Watts & S. 410.</p> <p>When this case came here last, this court held: '</p> <p>“In making out their case it was incumbent on the plaintiffs below to prove that defendant was duly notified to defend the suit brought by Lyman, Barnes & Company against Bennett, the beneficial plaintiff in this case, . . . 1868, of the court of common pleas of Erie county.” Keed v. Orton, 105 Pa. 294.</p> <p>All the evidence on this point was that of Bennett himself.</p> <p>The testimony of Judge Vincent was in fact simply an endeavor to make evidence of the notes taken on a former trial of a witness, who not only was present in full life, of ordinary health and memory, but one who stood as plaintiff on the stand and had himself testified. This is going one step further than was attempted in the case of Velott v. Lewis, 102 Pa. 326; Peed v. Orton, 105 Pa. 294.</p> <p>The assignment of the judgment to Lyon reserved all rights against the other members, and the act of assembly likewise prevents their discharge by such assignment and satisfaction. Brightly, Purdon’s Digest, 1299, § 3.</p> <p>There was no error in permitting Judge Vincent to refresh his memory from his notes. Farmers’ & M. Bank v. -Boraef, 1 Bawle, 152, 154.</p> <p>When an attempt is made to discredit the statement of a witness, evidence is admissible to show that the witness made said statement at another time to other parties, to show that the statement is not a fabrication of recent date, and as bearing on the witness’s credibility. Zell v. Com. 94 Pa. 258.</p> <p>If the notice does not appear on the record, the question of conclusiveness of the judgment will depend upon the belief of the jury as to the reception of the notice. Bawle, Covenants for Title, p. 255; Collingwood v. Irwin, 3 Watts, 306.</p> <p>Where there is a spark of evidence as to notice, the question of fact must be submitted to the jury as the legitimate triers of it. Bank of Pittsburgh v. Whitehead, 10 Watts, 397 — 402, 36 Am. Dec. 186.</p>

On July 18,1882, an agreement in writing, signed by O. & G. Cooper & Company, per D. L. Travis, Agent, provided for tbe sale of certain machinery to J. J. and J. S. Coleman. The agreement stipulated for payment in cash and deferred payments and proceeded: “For which deferred payments the second party is to give their negotiable promissory notes, payable to the order of O. & G. Cooper & Company, with interest at 6 per cent per annum, lease and satisfactory security. . . .

<p>An absolute conveyance in fee will not be converted into a mortgage by a defeasance executed immediately afterward but not part of the contract for the conveyance.</p> <p>Parol evidence is admissible to rebut the presumption that a defeasance bearing the same date as an absolute deed in fee simple was not part of the contract for the conveyance, but a.n afterthought.</p> <p>Cited in Gattle Bros. v. Kremp, 6 Pa. Super. Ot. 514, 521, 41 W. N. C. 569.</p> <p>Note. — By the act of June 8, 1881 (P. L. 84), a deed absolute on its face cannot be changed by a defeasance into a mortgage, unless by writing executed contemporaneously with the deed. Grove v. Kase, 195 Pa. 325, 45 Atl. 1054. This legislation applies only to deeds. Brown v. Beecher, 120 Pa. 590, 15 Atl. 608; Huston v. Regn, 184 Pa. 419, 39 Atl. 208. Its provisions can be invoked only by parties in interest. Burkhart v. Farmers’ Union Asso. 11 Pa. Super. Ct. 280.</p>

<p>In a suit before an alderman, at any time before judgment tbe plaintiff may withdraw or discontinue his suit or take a nonsuit; and thereupon a judgment for costs against him will not bar another action for the same demand.</p> <p>But where the docket of the alderman states that the plaintiff refused to proceed with the case, and thereupon judgment was entered in favor of defendant, against plaintiff with costs, it shows a final judgment on the merits which is a bar to another action on the same demand.</p> <p>Parol evidence in such case, that plaintiff withdrew or discontinued the action, contradicts the record and is inadmissible.</p> <p>The rule that parol evidence is admissible to explain, but not to contradict, the record applies to dockets of aldermen and justices of the peace.</p> <p>Note. — The entry of a nonsuit before a justice is not a bar to a second action. Vought v. Sober, 73 Pa. 49. Nor is the discontinuance of the action a bar. Gibson v. Gibson, 20 Pa. 9; Blair v. McLean, 25 Pa. 77. But a judgment for the defendant is conclusive. Beynon v. Peterson, 7 ICulp, 259; Marsteller v. Marsteller, 132 Pa. 517, 19 Am. St. Rep. 604, 19 Atl. 344; Besecher v. Elory, 176 Pa. 23, 34 Atl. 926. But the parties must be the same (Parkes v. Diehm, 5 Pa. Co. Ct. 146; Walker v. Eranklin, 4 Kulp, 380); as must be the cause of action (Moorehouse v. Moorehouse, 7 Pa. Super. Ct. 287, 42 W. N. C. 245).</p>

<p>In Pennsylvania the rule has not been adopted that the burden of proof is on the plaintiff to show absence of contributory negligence, and ordinarily, where plaintiff makes out a case, the burden of showing contributory negligence is on the defendant.</p> <p>Note. — -The use of a bridge, known not to be in good condition, but not closed to the public, is not necessarily contributory negligence. Humphreys v. Armstrong County, 56 Pa. 204; Sheridan v. Palmyra Twp. 180 Pa. 439, 36 Atl. 868. Whether the injury was the result of plaintiff’s conduct in failing to take .another route is usually for the jury (Mechesney v. Unity Twp. 164 Pa. 358, 30 Atl. 263) ; though the evidence may require a non-suit (Clulow v. McClelland, 151 Pa. 583, 17 L. R. A. 650, 25 Atl. 147); or the direction of a verdict for the defendant (Haven v. Pittsburgh & A. Bridge Co. 151 Pa. 620, 25 Atl. 311).</p> <p>A party is not as a matter of law negligent in passing over a bridge, which is part of a highway, which he had a week or ten days previously noticed was defective; he might have presumed that the defect previously observed by him had been removed, or he may have forgotten it; and the jury might impute his forgetfulness to other causes than negligence.</p> <p>Where a bridge looks all right, a previous knowledge of defects in it by a party injured in passing over it, will not render his passing over it negligence on his part.</p> <p>It is not error to refuse to charge the jury, in such case, that if they believe there was any other safe and accessible route to plaintiff’s destination than over such bridge “it was his duty under the circumstances to adopt that route, and failing to do so he cannot recover.”</p> <p>It is not error to refuse to charge the jury that plaintiff must be presumed to have noticed a defect in the bridge, when the evidence showed that the defect was sometimes covered up and then it looked all right," and its appearance at the time of the injury was not shown.</p>

<p>Certiorari sur appeal from a decree of Common Pleas No. 1 of Philadelphia County in favor of plaintiff in a bill in equity.</p> <p>This was a bill in equity filed by The H. Clausen & Son Brewing Company against the Pennsylvania Company for Insurances on Lives and Granting Annuities and against Philip J. Lauber, to compel the defendant company to assign and transfer to the plaintiff certain policies of life insurance.</p> <p>The facts as they appeared by the bill and answer are stated in the opinion.</p> <p>From the decree of the court in accordance with the prayer of the bill the defendant company appealed, and took this writ.</p> <p>— The sheriff’s sale discharged the lien of the two mortgages, but did not satisfy the debt thereby secured. The debtor was entitled to an appropriation of the proceeds in payment of his indebtedness, and nothing more. McDevitt’s Appeal, 70 Pa. 373; Bank of Pennsylvania v. Winger, 1 Bawle, 295, 18 Am. Dec. 633; Addam's v. Heffernan, 9 Watts, 529; Hastings’s Case, 10 Watts, 303; Ziegler v. Long, 2 Watts, 205; Konigmaker v. Brown, 14 Pa. 269 ; Philadelphia v. Cooke, 30 Pa. 56; Delaware & H. Canal Co.’s Appeal, 38 Pa. 512; Cummin’s Appeal, 9 Watts & S. 73.</p> <p>Equity appropriates a fund in the hands of a creditor to whom two debts are owing, to the one least secured, unless someone else discLoses a paramount equity. The complaints disclosed no such paramount equity.</p> <p>— I. The assignment of the insurance policies by Lauber, to the Pennsylvania Company, was a pledge of the policies as collateral security for a specific debt, which was paid by the proceeds of the foreclosure and sale of the mortgage of real estate given before as security for the same debt. Pierce v. Potter, 7 Watts, 475; Thomas v. Tarden, 57 Pa. 331; Ayres v. Wattson, 57 Pa. 360; Hood v. Adams, 124 Mass. 481, 26 Am. Dec. 687; Howard v. Ames, 3 Met. 308; Southworth v. Scofield, 51 N. T. 513; Jones, Mortg. §§ 950, 953; Westmoreland Bank v. Kainey, 1 Watts, 26.</p> <p>One of the provisions of a mortgage in Pennsylvania, and that upon which the foreclosure proceedings by scire facias are founded, authorizes the mortgagee in case of default “to proceed thereon to judgment and execution for the recovery of the whole of said principal debt, and all interests and taxes due thereon, besides costs of suit,” etc. Act 1705, §§ 6, 7, Purdon’s Digest,, 596.</p> <p>Thus in express terms the scire facias clause of the mortgage appropriates the proceeds of the sale to the debt thereby secured.</p> <p>A debtor who owes several debts to his creditor and makes a payment to him has the right to direct to what particular indebtedness his payment shall be applied; but if he fails to give such direction the creditor may apply the payment to any part of the indebtedness, and to the least secured debt. But this principle only applies to cases of voluntary payment, and not where the payment is enforced by process of law. Blackstone Bank v. Hill, 10 Pick. 133.</p> <p>The policies were never pledged as security for the second mortgage, and the appellant has no right to apply them to that debt. James’s Appeal, 89 Pa. 54; Jarvis v. Bogers, 15 Mass. 395; 2 Kent, Com. 584; Hathaway v. Fall Biver Nat. Bank, 131 Mass. 14; Wyckoff v. Anthony, 9 Daly, 417; Duncan v. Brennan, 83 N. Y. 487; Fridley v. Bowen, 103 111. 633 ; Post v. Tradesmen’s Bank, 28 Conn. 420; Schouler, Bailm. 228, 229; Pettibone v. Griswold, 4 Conn. 158, 10 Am. Dec. 106; Yan Blarcom v. Broadway Bank, 37 N. Y. 540; Bobinson v. Frost, 14 Barb. 536; Drake v. "White, 117 Mass. 10.</p>

<p>A bequest of money to “the pastor at N.,” for masses for the repose of' the testator’s soul and for the repose of the souls of his relatives and of the-souls of the faithful of his parish, is valid, and is to be interpreted and enforced in accordance with the will of the testator.</p> <p>The person who was the Roman Catholic pastor at N. at the time of testator’s death is entitled to the entire legacy in one sum, for the religious-uses mentioned.</p> <p>The executors are entitled to retain from such legacy the collateral inheritance tax thereon and pay it over to the proper officer.</p> <p>Note. — As to validity of bequests for masses, see editorial notes to Eestorazzi v. St. Joseph Roman Catholic Church, 25 L. R. A. 360, and to-Sherman v. Baker, 40 L. R. A. 717, presenting in full the authorities on. that subject.</p>

<p>A married woman, her husband joining, contracted with a third party to purchase certain real estate from him at a stipulated sum, without any provision as to how deferred payments should be secured; on coming to take possession, vendee (the wife) offered vendor her judgment note for the balance of purchase money unpaid. Vendor refused the note and demanded a mortgage upon certain real estate owned by the wife. The vendee, with knowledge that she had a remedy against the vendor on the contract, and acting in conjunction with her husband, gave the desired mortgage. Eeld, that the facts did not show fraud or coercion on the part of the vendor and, therefore, did not afford a defense to the mortgage.</p>

<p>Under the terms of the act of May 28, 1858, providing that when a rate of interest for the loan of money exceeding that fixed by law has been contracted for, the borrower or debtor need not pay the excess, but may retain and deduct such excess from the amount of such debt; and where he has voluntarily paid the whole debt, together with interest exceeding the lawful rate, he may recover back such excess by action, this right of action does not accrue until he has first paid voluntarily, both the debt itself and the excessive interest; and until that time arrives, no paper which the borrower or debtor may sign, whether it be contemporaneous with the original obligation, or whether it be given between that time and the time of payment, will operate as a waiver of his right to retain or recover back such excessive or usurious interest.</p> <p>A creditor cannot evade the law and enforce the payment cf usury by any arrangement or device with the borrower or debtor.</p> <p>An instrument given by the borrower or debtor after the debt secured by a mortgage was due, and at a time when payment on account and settlement had been made between the parties, and when the time of payment of the balance of the debt had been extended, although purporting to be a release of the creditor, and of all the securities held by him, from all claims and demands whatever, on account of usury, or extra interest, had or taken, and containing an agreement not to set up any plea or claim of the kind, and authorizing any attorney to appear for the debtor and enter a reiramt or discontinuance of such plea or claim, does not operate as a waiver of the debtor’s right to retain or recover back such excessive interest.</p> <p>Cited in Maride Bros. v. Straw, 5 Kulp, 57.</p> <p>Note. — The surety upon a note is not discharged by the payment of usurious interest by the principal unless there be evidence of some change in the contract. Keener v. Miller, 3 York Legal Record, 217. Any usurious interest paid will be deemed a credit on the principal sum due. Mahoney’s Estate, 15 Pa. Co. Ct. 302. See note to Anderson’s Appeal, 1 Sad. Rep. 45.</p>

July Term, 1886, No. 109, E. D. Error to the Court of Oyer and Terminer of Wayne County to review a judgment on conviction of murder in the first degree. The facts and questions raised are fully set out in the following charge to the jury in the court by Seeley, P. J. The defendant is charged before you with the crime of murder. Murder is the unlawful and malicious taking of human life.

The facte ax’e stated in the charge to the jury in the court below by Taylor, J.: “The plaintiff brings this action of ejectment, claiming the right of possession of 6 acx’es, 6 perches of land, land situated in Cranberry towxxship, this county. He offers in evidence the writ and the return of the sheriff thereon, which is prima facie evidence that the defendants were in possession of the land at the beginning of the sxxit.

<p>A man’s declarations against his interest are to be taken as true and construed most strongly against him.</p> <p>An administrator having a debt due him from the estate must comply with the statutory regulations in order to continue its lien beyond the prescribed time.</p> <p>Where there is fraud in the action of the administrator in not paying over the shares of the estate to heirs who are under his guardianship, the statute of limitations only runs from the discovery of the fraud.</p> <p>Note. — For the effect of fraud on the running of the statute of limitations, see note to Stewart v. McBurney, 1 Sad. Rep. 234.</p> <p>The administrator stands in the same position as other creditors as to a claim against the decedent’s estate. Ex parte Meason, 5 Binn. 167; Naee’s Appeal, 4 Pa. Super. Ct. 615; Clauser’s Estate, 1 Watts & S. 208. This is true though the money was advanced to pay claims against the estate. In such case he is subrogated to the rights of the creditor. Demmy’s Appeal, 43 Pa. 155; MeKerrahan v. Crawford, 59 Pa. 390.</p>

This action was brought by the executors of Joseph Cook, to recover of defendant, as administrator of Henry D. Poster, damages for the alleged negligence of said Foster in not keeping a judgment revived. The facts as they appeared in the court below are as follows: November 24, 1871, Henry D. Poster, Esq., an attorney at law, appeared and entered a judgment in favor of Cook’s executors against one Samuel Einney for $1,-945.80.

October Term 1885, No. 173, W. D. Error to the Common Pleas of Greene County to review a judgment on a verdict for plaintiff in an action of assumpsit upon three promissory notes. July 22, 1879, judgment was entered in favor of the Exchange Bank of Waynesburg against defendant, upon three notes, with warrant of attorney, etc., one dated August 27, 1874, for $47.80, one dated September 9, 1875, for $63.34, and one dated September 16, 1874, for $500.

October Term, 1886, No. 185, W. D. Error to the Common Pleas of Greene County to review a judgment dismissing a rule to show cause why a judgment should not be opened. This action was commenced before a justice of the peace by David Slusher in right of his wife against William Goodwin, on an account for boarding. Defendant refusing to produce evidence before the justice, judgment was rendered in favor of the plaintiff July 22, 1882, for $202.50.

<p>Error to the Common Pleas of Greene County to review a judgment on a verdict for plaintiff in an action of trespass on the case on promises to pay a pre-existing liability.</p> <p>The facts of the case as they appeared in the court below are stated in the charge to the jury by Inghram, J.</p> <p>“It appears from the evidence in this case that on the 10th day of December, 1873, the defendant, James Huffman, gave to the plaintiff, D. W. Johns, Ms note under seal calling for the payment of $325.50, one year after date. Erom the evidence it doesn’t appear that anything Avas done with that note, but it does appear that on the 17th day of July, 1876, the defendant, James Huffman, was adjudicated a bankrupt; and on the third day of December, 1879, he was discharged in bankruptcy, of course dating back to his adjudication on the 17th day of July, 1876; and that relieved him from all liability on this note.</p> <p>“But it is claimed by the plaintiff that on or near the first of July, 1SS0, he called upon the defendant at his house and asked him to reneAV the note dated on the 10th day of December, 1873, but that the defendant refused to renew it, but said that he must and would pay it; and it is claimed by the plaintiff that he offered to give him a horse on the note, which he considered worth $100; and that lie, the plaintiff, agreed that he would take the horse on the note, and that they went to the field to look at the horse; that they did look at him, but the defendant wanted to use the horse for a few days in some of his farming operations, possibly; and that he left him there, but when he went back the defendant claimed that the horse was worth $120.</p> <p>“The plaintiff claims that he said he would give him credit on the note for the horse and that the defendant sanctioned that proceeding, and he claims that he afterwards did give the defendant credit on the note for $120, the price of the horse, and also gave the defendant a pocket receipt for the amount of the value of the horse. This is, as we remember it, the evidence on the part of the plaintiff on which he relies for a recovery in this action, claiming that there has been such a promise on the part of the defendant to pay this debt, as would render him liable to a recovery in this action.</p> <p>“On the part of the defendant it is not denied that he gave the plaintiff the horse on the note, or as a payment on the note, but he claims that it was under different circumstances and under a different state of facts than that claimed by the plaintiff. He claims that- the plaintiff came to his house or his place, about the first of July, 1880, and asked him to renew the note, but that he declined and refused to do so, but stated to the plaintiff that he would like to pay the note, but was unable to do it. It is claimed also that he stated to the plaintiff that he would give him the horse on the note if he, the plaintiff, would release the defendant, or rather discontinue a suit in the name of the administrators of Cowan against the defendant and his brother that was then pending in this court; and further, that if he would discontinue that suit and give him an opportunity to pay the note by assisting him (the plaintiff then being a candidate for the nomination for treasurer of the county, and the defendant believing' the plaintiff’s prospects for the nomination were pretty fair) — that ho stated to the plaintiff that if the plaintiff would give him an opportunity of clerking for him and collecting money for him, he would in that way pay the note; and he claims that he made no other promise than that; that he did state in reply to the request of the plaintiff to renew the note, that he wouldn’t do it; that he would like to pay it, and if the plaintiff would give him the opportunity he would pay it, and that he would give him the horse on the note, if he, the plaintiff. would release the suit then pending against him in the name of the administrators of Cowan.</p> <p>“The defendant claims that the promise, if any was made, was entirely conditional upon his being allowed to assist the plaintiff in his business, in his office, and that the further condition was that they would discontinue the proceedings in the Cowan suit against the defendant; and he claims that the proceedings in that case were not discontinued, and the record in that case shows that they proceeded until he was finally successful in recovering a verdict in his favor on the 21st of April, I believe, 1885.</p> <p>“It is claimed by the defendant that whatever promise was made about the first of July was conditional and entirely so; that the condition failed and that he is not now responsible for this note or the balance of it, after deducting the credit of the price of the horse.</p> <p>“On the part of the plaintiff it is not denied that they had some conversation about the Cowan suit, and about assistance in the office of treasurer if the plaintiff should be nominated and elected; but he claims that the promise to pay the note was before that, that the promise to pay' the note was made at or near the house of the defendant and that nothing was said about assisting in the office of treasurer, and that nothing was said about the Cowan suit at that time; but that after they had been talking there awhile and the promise had been made and they had gone to the field to look after the horse, and were out in the field, or returning to the house afterwards, the defendant did say something afterwards about the discontinuance of the Cowan suit and about clerking in the office of treasurer for him, or collecting moneys for him, but he denies that such conversation took place at the time the promise, as he claims, was made.</p> <p>“The question for you to determine, gentlemen of the jury, is whether there has been an absolute promise to pay this note or debt since the discharge of the defendant in bankruptcy. Whatever promise was made was made, of course, since his discharge in bankruptcy, that having taken place in December, 1819 ; and it is claimed by the plaintiff that the promise which he alleges was made was made in July, 1880. It will be a question of fact for you to determine from all the evidence in the case, relying upon your own recollections of the testimony as to what has been testified to on the one side or the other. It is not what we may state was the testimony, or what the counsel may state that you are to rely upon in malting up your verdict, but it will be your duty to remember the testimony of the witnesses, and upon your recollection of it make up your verdict. . . .</p> <p>“If the jury should find that there was a promise of the defendant, that it was an absolute promise to pay the amount of that note, and that he did pay the $120 on it, then the plaintiff would be entitled to recover, and your verdict should be for the plaintiff for the balance of the note with its interest. . . .</p> <p>“If the jury should find from the evidence that it was a conditional promise, not unconditional and absolute on the part of the defendant to pay, then the plaintiff is not entitled to recover, and your verdict should be for the defendant. It will be altogether a question of fact for you, gentlemen of the jury, under evidence in the case. If you believe it was unconditional and absolute after his discharge in bankruptcy, then the plaintiff is entitled to recover, and your verdict should be for the plaintiff for the balance of the note, with its interest down to the present time. If, on the other hand, you find that the promise was not unconditional and absolute, the plaintiff would not be entitled to recover, and your verdict should be for the defendant.”</p> <p>The jury found a verdict for plaintiff, upon which judgment was entered; and defendant took this writ, assigning errors as follows:</p> <p>1. The court erred in affirming plaintiff’s point, as follows:</p> <p>“That if the jury believe from the evidence that tire defendant promised to pay the plaintiff after his discharge in bankruptcy as stated by plaintiff, to wit: T must and will pay it,’ in speaking of the note, and paid by a horse $120, on said note, the plaintiff is entitled to recover the residue of said note.”</p> <p>2. The court erred in refusing defendant’s second point, as follows:</p> <p>“Under all the evidence in the case the verdict of the jury should be for the defendant.”</p> <p>— When a case is submitted to a jury upon clearly insufficient evidence, such as no court ought to sustain a verdict upon, it is its plain duty to reverse. Cauffman v. Long, 82 Pa. 80 and cases cited.</p> <p>If there is evidence from which the jury can properly find the question for the parly on whom the burden of proof rests, it should be submitted; if not it should be withdrawn from the jury. Hyatt y. Johnston, 91 Pa. 196.</p> <p>It is not enough that there was a recognition of the debt or payment made on same after discharge in bankruptcy; there must be an express promise to pay, unconditional and absolute. Canfield’s Appeal, 1 W. N. C. 67; Yoxtheimer v. Keyser, 11 Pa. 366, 51 Am. Dec. 555.</p> <p>The effect of such evidence has been carried very far to avoid the statute of limitations; much farther than it ought to be in order to avoid a bankrupt’s discharge, which would otherwise be a dead letter. Id.</p> <p>The decisions of this court apply very strict rules to acknowledgments, to take the case out of the statute of limitations. Johns v. Lantz, 63 Pa. 324; Shaffer v. Hoffman, 17 W. N. C. 501; Landis v. Noth, 16 W. N. C. 309.</p>

On the 20th day of May, 1885, one John B. Haugh made an information before J. W. Walker, Esq., a justice of the peace, in which John F. Davis was charged with adultery with a certain Celesta Hawk, “not his lawful wife.” In pursuance therewith a warrant was issued and the defendant arrested. On September 17, 1885, a true bill was found.

<p>October Term, 1886, No. 186, before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Appeal from a decree of tbe Orphans’ Court of Westmoreland County dismissing appellant’s exceptions to the report of an auditor appointed to distribute the proceeds of the estate of John Hood, deceased.</p> <p>William Hood presented a claim against the estate consisting of a book account of $467.20, a note, dated April 30, 1885, for $254, and a claim of $467.20, for damages, costs, attorney’s fees, and expenses, etc., in defendiug a suit, brought against him by one Joseph Parke, to recover the possession of land conveyed to William Hood by said John Hood, the decedent, by general warranty deed. An auditor was appointed, before whom the following material facts appeared:</p> <p>In 1880 John Hood was seised of a tract of land which he conveyed by deed of general warranty October 12, 1880, to his son William Hood for $1,598.34. In 1881 Joseph Parke began an action of trespass against William Hood, in which the title was put in issue; and William Hood was unsuccessful and was compelled to pay counsel fees, costs, etc.</p> <p>John Hood made a will, July 10, 1882, in which he appointed Jacob G. Weaver his executor. He died November 14, 1882, and after letters were taken out by Weaver as executor William Hood filed his claim as above as creditor.</p> <p>The note presented by William Hood as a part of his claim was drawn on a printed blank and showed an erasure after the name of the payee, which was not explained by the appellant unless it was by evidence given at the trial that the note was given by John Hood to William Hood to lift a note which had been given to William Hood as guardian of a minor.</p> <p>The second report of the auditor was as follows:</p> <p>“In regard to the claim of William Hood for expenses and costs incurred by him in defending the action of trespass, No. 337, May term, 1881, Parke v. Hood, the weight of testimony shows that Joseph Parke was in possession of the disputed land before suit was brought, and during the pending of the action, and has remained in possession ever since.</p> <p>“The land in dispute was embraced in the deed from John. Hood to his son William Hood. This deed contained a covenant of general warranty. In the above mentioned suit the plaintiff obtained a verdict, which showed that John Hood had sold and conveyed to his son William land which he did not own; and he therefore became liable for damages on his covenant of warranty. The measure of damages would be the consideration of the land thus lost to the vendee. Bender v. Fromberger, 4 Dali. 441, 1 L. ed. 900; Brown v. Dickerson, 12 Pa. 372; Cox v. Henry, 32 Pa. 18.</p> <p>“The number of aeres in the disputed piece of land has been fixed at ten, and the value at an average of $5 per acre. Therefore in the absence of fraud- — -and none has been alleged — William Hood, the vendee, is entitled to the sum of $50 for damages for his loss.</p> <p>“In regard to the material erasure of the note, no explanation has been given under the rule of the law. For this reason it has not been allowed.</p> <p>“The auditor has allowed William Hood, in addition to the price of the lost land, the sum of $252.38 costs of suit in the case of trespass, No. 337, May term, 1881, Joseph Parke v. William Hood.</p> <p>“The fees paid counsel, to wit: $155 have not been allowed, as it was not shown that William Hood, the vendee, had given John Hood, the vendor, notice to come in and defend the title.</p> <p>“In Fulweiler v. Baugher, 15 Serg. & R. 45, it was ruled: If the vendee does not give notice to the vendor to come in and defend the title, bnt defends, he cannot recover his counsel fees and his own expenses, unless in case of the absence of the warrantor, or fraud. See also Hain v. Martin, 5 Watts, 179; Terry v. Drabenstadt, 68 Pa. 403.</p> <p>“The testimony shows that John Hood, the vendor, had been a witness in the action of trespass and was present at one term of court, and also that he told Joseph Lay cock that he had an attorney employed too. But this, it would seem, was after William Hood had employed counsel.”</p> <p>The exceptions of William Hood to this report were overruled in the court below and he appealed, assigning, inter alia3 as error the action of the court in disallowing the note of appellant and his claim for counsel fees expended in the case of Parke v. Hood.</p> <p>— The alteration of the note did not change its legal effect and was not material. Gardinier v. Sisk, 3 Pa. St. 326; Latshaw v. Hiltebeitel, 12 W. N. O. 334; Beig v. Meyers, 102 Pa. 10; Kountz v. Kennedy, 63 Pa. 187, 3 Am. Bep. 541; Bobertson v. Hay, 91 Pa. 242; Sharpe v. Beilis, 61 Pa. 69, 100 Am. Dee. 618.</p>

October term, 1886, No. 11, W. D. Appeal from a decree of the Orphans’ Oourt of Westmoreland County allowing a claim against a decedent’s estate. Dr. Lewis Sutton, as a creditor of the estate of Colonel Israel Painter, presented his claim for allowance before the auditor who was appointed to make distribution.

<p>October term, 1886, No. 30, W. D. Appeal from a decree of the Orphans’ Court of Mercer County, in the matter of the estate of R. J. Vaughn, deceased, overruling the allowance of appellant’s claim by the auditor and rejecting the same.</p> <p>The facts are stated in the opinion.</p> <p>The assignments of error specified the action of the court:</p> <p>1. In sustaining the accountant’s seventh exception, which is as follows, to wit: “The auditor erred in distributing to W. H. Axtell the sum of $25.50 and $3.82 as interest thereon.”</p> <p>2. In sustaining that part of the administrator’s eleventh exception which relates to costs of W. H. Axtell, which, omitting the part relating to costs of another claimant, T. B. Dilley, is as follows, to wit: “The auditor erred in distributing the following costs as having been incurred before said auditor (J. T. Gibner) as to the Axtell claim:</p> <p>To J. Breakman, one day, 30 miles................$1 90</p> <p>[Same being charged for above].</p> <p>To W. II. Axtell (a claimant) on subpoena....... 1 59</p> <p>G. W. Smock, one day, 24 miles............... 1 72</p> <p>G. W. Smock, “ “24 “ ............... 1 72</p> <p>—said witness being recalled by claimants before tbe second auditor.”</p> <p>3.In sustaining that part of administrator’s twelfth exception which relates to the costs of Wm. II. Axtell, and which, omitting those parts relating to costs in claim of Thomas B. Dilley, is as follows: “'The administrator excepts to the following costs as having been incurred before S. Redmond:</p> <p>Wm. II. Axtell, on subpoena and mileage........ $1 48</p> <p>Wm. H. Axtell, on subpoena and mileage........ 1 68 —as he is a claimant, and not an officer.</p> <p>To Jackson Breakman, one day, 30 miles........ 1 90</p> <p>George Smock, one day, 23 miles........... 1 72</p> <p>Both these witnesses are allowed cost for one hearing, and are not entitled on the Axtell claim.”</p> <p>4. In sustaining the administrator’s thirteenth exception, which is as follows, to wit: “The auditor erred in hearing any testimony concerning the AVm. H. Axtell claim, while a suit T$as pending in the common pleas of said county between said claimant and estate, in which this alleged claim would be a proper offset, and also in hearing testimony outside of the book account of said claimant.”</p> <p>5. In confirming the report as amended of S. Redmond, Esq., auditor.</p> <p>— The present case does not come within the provisions of the act of March 20, 1810, § 7 of Brightly’s Purdon’s Digest, 854, which provides that a defendant who shall refuse to set off his demand against a plaintiff, which shall not exceed $100, before a justice of the peace, shall be and is .forever barred from recovering against the plaintiff by any after suit.</p> <p>This proceeding is not, in any true sense, a suit. The right of the appellant to his just proportion of the property of R. J. Vaughn, deceased, vested at the death of the latter; and the property being in the custody of the law, it was not necessary to bring suit. McClintock’s Appeal, 29 Pa. 360.</p> <p>Even if this court should treat this proceeding as in the nature of “a suit” the claim is still not barred by the act. It is, in the words of the act, the “after suit” that is barred. Here, by the express agreement of the parties made many months before appellee’s suit was brought before the justice of the peace, appellant’s claim was to be placed in the control of the orphans’ court, a court of competent jurisdiction, to adjudicate upon it. The claim sued on, having been paid during the lifetime of the deceased, the attempt, by means of the suit, to defeat Dr. Ax-tell’s claim, was fraudulent; and the auditor was justified in disregarding it and treating it as a mere trick to defeat an honest creditor. “Fraud vitiates everything, no matter how solemn in form.” Slyhoof v. Flitcraft, 1 Ashm. (Pa.) 171.</p> <p>It was both the right and the duty of the appellant, as a creditor of R. <T. Vaughn, deceased, to go into the orphans’ court with his claim, and prosecute it there in accordance with the method provided for that purpose. Phillips v. Allegheny Valley R. Oo. 107 Pa. 465.</p> <p>The administrator’s account showed a fund for distribution. An auditor was appointed to make it, and notice given to all persons who had claims against the estate to appear before him and present them. Dr. Axtell was, then, bound to appear and claim his debt. Hammett’s Appeal, 83 Pa. 392.</p> <p>In order to obtain any part of the fund in the hands of the administrator they (the creditors) must proceed in the orphans’ court, which alone has the power to distribute the estate. Phillips v. Allegheny Valley R. Co. 107 Pa. 465; Kittera’s Estate, 17 Pa. 416; Bull’s Appeal, 24 Pa. 286; Ashford v. Ewing, 25 Pa. 213; Whiteside v. Whiteside, 20 Pa. 473; Dundas’s Appeal, 73 Pa. 474; Shollenberger’s Appeal, 21 Pa. 337.</p> <p>The operation of the act of March 20, 1810, was, doubtless, confined to justices of the peace. At all events it could not apply to the orphans’ court since the passage of the acts of March 29, 1832, § 19 (Brightly’s Purdon’s p. 445), and April 13,1840, § 1 (Id. p. 446, pi. 200).</p> <p>The plaintiff is entitled to the usual compensation for his own service of subpoena upon his witnesses. Horner v. Harrington, 6 Watts, 331.</p> <p>—“The act of assembly (of March 20, 1810) is imperative upon a defendant who is sued before an alderman or a justice of the peace, for a debt or demand founded on a contract, that if he has one of a like nature against the plaintiff, not exceeding in amount $100, he shall defalk or set it off, or otherwise be precluded forever afterwards from recovering it.” Herring v. Adams, 5 Watts & S. 460; Slyhoof v. Flitcraft, 1 Ashm. (Pa.) 173.</p> <p>Appellant contends first that, the presentation of his claim and proceeding thereon before the auditor “is not in any true sense a suit.” We concede this, bnt that does not relieve him from his duty to offset it. McClintock’s Appeal, 29 Pa. 360, is overruled by Sorks’s Appeal, 17 W. N. C. 17, 34-36, 1 Cent. Rep. 354, 659, which decides that the relation is simply that of debt- or and creditor. We do not deny that the orphans’ court has exclusive jurisdiction to distribute estates; but, as decided in Hammett’s Appeal, 83 Pa. 395, and again reaffirmed in Phillips v. Allegheny Valley R. Co. 107 Pa. 469, “It has possession of the fund, for it controls and directs all those who have its custody, and it is only through its decrees the fund can be reached. It is true, the remedy of the creditor to establish his debt in a common-law court is not taken away, for this may be necessary to stop the running of the statute of limitations, to decide disputed and complicated questions, and make the settlement afterwards, before the auditors, more easy and convenient.”</p> <p>If it be held that claimant is not entitled to recover his claim, then, of course, he can receive no cost for his service of subpoena.</p> <p>The case cited by appellant, Homer v. Harrington, 6 Watts, 331, is not in point; it does not say that the party had served the subpoena himself, and establishes nothing bearing on this case.</p>

Error of the Court of Quarter Sessions of Clarion County to review a decree sustaining an appeal and discharging an order of removal of a pauper. The case is sufficiently stated in the opinion. The assignments of error specified the action of the court in refusing plaintiffs’ points.

October Term 1886, No. 192, W. D. Error to tbe Common Pleas of Oambria County to review a judgment on a verdict directed for defendants in an… Held: that the sale was valid, and trover would lie against persons claiming by assignment from one of the partners. Carey v. Bright, 58 Pa. 70, 77, S3, 84. Where the demand and refusal were on the same day, the verdict and judgment being for the plaintiff, held, it was for the jury to determine whether the demand preceded the suit.

<p>To establish, by the provisions of a will, the conversion of real into personal property, the will must direct it absolutely, irrespective of contingencies; in other words, there must be an imperative direction to sell.</p> <p>A will in which there is no absolute direction to sell lands situate out of the state, but the power of the executors to sell is made dependent on the contingencies that cotenants should sell and that the executors should realize the same price as the eotenants, does not work such conversion.</p> <p>Such lands are not, nor is the fund arising from a sale thereof, liable co a collateral inheritance tax, although the will directs that if there be not means enough to pay the legacies without it, a sufficient amount shall be taken from the proceeds of such lands to pay them, and although there be not enough to pay such legacies without such proceeds.</p> <p>Note. — A contingent power of sale does not work a conversion. Machemer’s Estate, 140 Pa. 544, 21 Atl. 441. The direction must be absolute (Sill v. Blaney, 159 Pa. 264, 28 Atl. 251) ; or there must be an absolute necessity to sell or such a blending of the realty and personalty as to clearly show that the testator intended to create a fund out of both and to bequeath the fund as money. (Irwin v. Patehen, 164 Pa. 51, 30 Atl. 436). A mere naked power to sell is not sufficient. Sheridan v. Sheridan, 136 Pa. 14, 19 Atl. 1068; Fahnestock v. Fahnestock, 152 Pa. 56, 34 Am. St. Hep. 623, 25 Atl. 313. The direction must be positive and explicit, irrespective of all contingencies and independent of all discretion. Becker’s Estate, 150 Pa. 524, 24 Atl. 687.</p>

<p>A married woman may receive as a gift her husband’s property from one who has purchased it at a bona fide sheriff’s sale on execution against him, and may hold it against the husband’s creditors.</p> <p>Note. — A like determination is found in McLaughlin v. McLaughlin, 91 Pa. 462, and in Winch v. James, 68 Pa. 297. It is for the jury to say whether a gift was intended (Hess v. Brown, 111 Pa. 124, 1 Cent. Pep. 917, 2 Atl. 416) ; or whether the arrangement was made to defraud other creditors. (Evans v. Kilgore, 147 Pa. 19, 23 Atl. 201).</p>

Argued October 12, 1886, before Gordon, Trunkey, Sterrett, Green, and Clark, JJ'. October Term, 1886, No. 80, W. D. Error to the Common Pleas of Armstrong County to review a judgment on a verdict directed for plaintiff in an action of assumpsit. This action was brought by John Johnston against D. W. Hawk, administrator of John Nalston, deceased, to recover the amount of a certificate of deposit.

'Argued October 18, 1886, before, Gordon, Trunkey, Sterrett, and Green, JJ. October Term, 1886, No. 14-6, W. D. Appeal from a decree of the Orphans’ Court of Indiana County distributing moneys in the hands of an administrator. John Montgomery under an agreement with James Clark, the committee for Isabella Shryock, a lunatic, had supported and cared for her for a number of years to the time of her death. She died intestate September 5, 1881.

Argued October 13, 1886, before Gordon, Trunkey, Stereett, Green, and Clark, JJ. ‘ October Term, 1886, No. 22, W. D. Certiorari sur appeal to the Common Pleas of Cambria County to review a decree dismissing exceptions to an auditor’s report distributing moneys arising from a sheriff’s sale. E. A. Lloyd, by agreement with James Kelly, dated August 23, 1883, constructed a dwelling house on premises owned by the latter.

Argued October 11, 1886, before Gordon, Trunkey, Sterrett, Green, and Clark, JJ. October T©rm 1886, No. 24, W. D. Error to the Common Pleas of Cambria County to review a judgment on a verdict for plaintiffs in an action of ejectment.

'Argued October 20, 1886, before Gordon, Trunkey, Sterrett, and Green, JJ. October Term, 1886, No. 219, W. D. Error to the Common Pleas of Washington County to review a judgment upon a feigned issue in favor of claimant of goods levied upon by a sheriff. Under a fi. fa. issued by Gregg, Son & Company against one Joseph J. George, the sheriff levied upon the contents of a country store found in the possession of Mr. George.

<p>Argued October 12, 1886, before Gordon, Trunkey, Sterrett, Green, and Clark, JJ. October Term, 1886, No. I!, W. D. Error to tbe Common Pleas of Lawrence County to review a judgment on a verdict for the plaintiff in an action of ejectment.</p> <p>This was an action of equitable ejectment, brought by John W. Walter, to enforce the payment of purchase money owing by Forbes Holton, who was in possession, upon articles of agreement for the sale by Walter to Holton of “all his right, title, interest, and claim, real and personal, in the property known as the Union Glass Works, situated in Union township, Lawrence county, and state aforesaid, and the same property conveyed to said Walter by S. W. Dana, Esq., assignee of the Union Glass Company, by deed dated August 17, 1869, and recorded in deed book 17, pp. 574-5.” The description in the deed was “the undivided one half of that certain piece or parcel of land situate,” etc., “bounded on the north by Shenango river, on the east by Shenango river, on the south by Washington street, and west by E. & P. E. B.”</p> <p>The writ claimed the undivided one half of the piece of land described as in the deed, but the description was afterward amended by leave of court so that the north and east boundary should be “the water line of Shenango on its west side, as it was on August 17, 1869.” The price was $3,500, and the balance of purchase money and interest due at time of trial was $3,552.50.</p> <p>Between the date of the deed to Walter and his agreement with Holton, the Erie canal was abandoned, the dam just below removed, and consequently the water line along this property had receded eastward, leaving considerable land between the water line of 1869 and 1879, which was claimed by successors to the canal company’s title.</p> <p>The court below, Wickham, P. J., refused to admit evidence of pending ejectments for the strip of land left dry by the change in the river, and charged the jury, inter alia, as follows:</p> <p>“You will observe that Mr. Holton (perhaps unfortunately for himself, and if so, we all feel sincerely sorry for him, but the law must be enforced notwithstanding), agreed to purchase the plaintiffs interest in the undivided one half of the land described in the contract offered in evidence, for the sum of $3,500. Pie has failed to pay more than $500 of that sum. Now, gentlemen, the plaintiff is entitled to recover the lands in the possession whereof he placed the defendants, by virtue of this agreement. He is entitled to your verdict for the recovery of the premises, etc.”</p> <p>Verdict for the plaintiff to be released on payment of $3,552.50, with interest and costs, etc., and judgment thereon. Thereupon the defendants took this writ, and assigned as error the action of the court in excluding the evidence and in charging as above stated.</p> <p>— -In every contract for the sale of land, a condition is implied for a good title, and the delivering up of the deeds. Fry, Spec. Perf. 99.</p> <p>The court will not direct an inquiry where, though the contract be one of sale, the vendor only sells such interest as he has j such an agreement is, of course, perfectly valid, but, being in restraint of the purchaser’s implied right to a good title, it must be made clear and unambiguous to the purchaser. Id. 359.</p> <p>The whole tenor of the agreement shows that Mr. Walter was selling to Mr. Holton the undivided one half of the land deeded to him by Mr. Dana. To this undivided one half Mr. Holton has an implied right to a good title.</p> <p>A decree for specific performance is of grace, not of right. Mitchell v. Stcinmetz, 97 Pa. 251.</p> <p>The purchaser cannot be compelled to take a doubtful title. Pratt v. Eby, 67 Pa. 397; Kostenbader v. Spotts, 80 Pa. 430.</p> <p>— Where vendor contracts to convey his “right, title, and interest” in an action for purchase money, want of title is no defense. Herrod v. Blackburn, 56 Pa. 103, 94 Am. Dec. 49; Smith v. Sillyman, 3 Whart. 589.</p> <p>He cannot defend an ejectment to compel payment of purchase money, by showing misdescription, without fraud, nor is he entitled to improvements. Miles v. Williamson, 24 Pa. 135.</p>

'Argued October 15, 1886, before Gordon, Trunkey, Sterrett, and Green, JJ. October Term, 1886 No. 180, W. D. Error to the Common Pleas of Armstrong County to review a judgment on a verdict for plaintiff in an action of debt on a tax collector’s bond.

October Term 1886, No. 179, W. D. Error to the Common Pleas of Mercer County to review a judgment on a verdict-directed for defendants in an action of assumpsit. This action was commenced October 1, 1879, by Seth Guilinger against D. Zahniser, William Devoe, and others, to recover, on the ground of usury, the difference between the amount of certain payments made and the amount defendants were legally entitled to.

This was a bill in equity, filed by George W. Pierce against Elizabeth McCracken, Jane McCracken, and A. D. McCracken, guardian ad liiem of Emma, Millus, and Jesse McCracken, for the reformation of the following instrument in writing: “Article of agreement made and concluded on this 19th day of January, 1881, by and between Margaret E. McCracken, of Sandy Creek township, Mercer county, Pa., of the first part, and George Pierce, of same township, county and state aforesaid,…

. October Term, 1886, No.. 100, W. D., before Gordon, Trunkey, Sterhett, Green, and Glare, JJ. Error in the Common Pleas of Mercer County to review a judgment on a verdict directed for defendant in an action of, covenant.