Volume 3 — Walker's Pennsylvania Reports (1832–1885)

1 of Phila. County, This was an appeal from a decree of the Court, distributing the proceeds of a Sheriff’s sale, made under a mortgage. The ’ auditor, appointed to distribute the fund, awarded without dispute, debt, interest and costs to the mortgagees, and ‘f of the balance of the fund to the owner of § interest in the land, > the other third thereof-remained to be awarded to the owner of the disputed third interest in the premises..

1 Philadelphia County, This was a claim brought by the City of Philadelphia against Edward Fitzgerald for $32.40 for a culvert against a lot of ground on the south side of Pine St. A case stated was agreed upon as follows: By ordinance of November 1, 1875, the City Councils authorized the construction of a large number of main sewers, inter alia of a sewer termed the Lombard street sewer, commencing at Thirteenth and South streets, thence along Thirteenth street three and a…

In Equity. This ease was a Bill in Equity to enforce an alleged family arrangement or agreement between the heirs of John J. Lewis, deceased, relative to his estate; and it was claimed that under this arrangement, rights have attached, and that outlays and improvements have been made, so that the parties cannot now be placed in statu quo, and that equity demands the fulfillment of the family arrangement so made.

The abstract 'of the petition to open the judgment is as follows : That S B. Dick sold a lot of land in Meadville to C. PI. Prescott, on March 13, 1875 for $7,000. That said purchase was for his wife, L. A. Prescott. That vendee gave a bond and mortgage, in the sum of $7,000, to secure the purchase money. That there was paid prior to Aug. 6,1875, $3,853.05 to be applied on the bond and mort.gage; which money was furnished by'the said L. A. Prescott.

<p>Error to the Court of Common Pleas of Snyder County,</p> <p>This was an attachment in execution with notice to Franklin J. Schoch and Augustus Springman, as garnishees. William A. Meeker, W. F. Eckbert, F. J. Schoch A. Springman, D. G. Winey, J. Banks Wilson, Edmund S. Doty, J. G. L. Shindel • were the directors of the Selinsgrove and North Branch Railroad Company. W.'A. Mocker was the President. This railroad company stood in need of money to.carry on its works. Its credit was not good, and in order to obtain a loan, it was necessary for the directors to make themselves-individually liable to secure a loan for the Company. On Aug. 16, 1874, the Board of Directors met, all being present, except Winey. The following preamble and resolutions were adopted: “Whereas, It has become necéssary to raise money by loan, to carry on the works, and this can only be done by the directors making themselves personally liable; And whereas the amount demanded at this time is $5,000, and the directors have given their note for the same at 60 days; Therefore, Resolved, That the President is directed to retain out of the subscriptions collected, when realized, or the levied uncollected subscriptions, a sum of money sufficient to meet the said note at maturity, and apply the same to its payment.” The note referred to in this resolution yms signed by all the directors named, except J. Gr. L. Shindel. The note was discounted on Aug. 22,1874, at the Union Bank of Huntingdon, Pa., and the proceeds thereof,-handed over to the said Railroad •Co. When this note became due, the Railroad Co. had not funds' to pay it; then it was renewed by another note, of which the following is a copy:</p> <p>Mifflintown, Oct. 3rd, 1874.</p> <p>90 days after date we promise to pay to the order of ourselves, at the’ banking house of Doty, Parker'& Co., $5,000 without defalcation value received.</p> <p>’This was., signed by all the directors, except Shindel and .endorsed!hy them:. .When .this note became due, there still ‘was no'money•>■ to meet i-t. 'Subsequently, Edmund S. Doty, who was a solicitor of the Railroad Co., collected some subscriptions on the-capital-stock of 'the company, and with them paid on said note, Apr. 23rd, 1875, $500; Augl 20,1875,$300 ; JaneBl, 1876, $600, $300'. of-which F. J. Schoch gave him ; March 2-7.th, 1876,'$300. - Then on Apr. 15, 1876,.Edmund S. Doty, -Jr., purchased the note from the said bank. " After this, the. Union.-. Bank of Huntingdon^ -brought suit, in its .name, against all the makers, in the Court of Common Pleas of Snyder county, No. 50 May Term, 1876. The summons was served only on W. A. Meeker, F.. J. Schoch, W. F. Eckbert and Augustus Springman, the other parties could not be found in the county. .On June 23, 1876, judgment was obtained against the parties served, for the sum of $3,669.94 ; Feb. 2,1877, F. J. Schoch paid on this judgment $500; Jan. 30, 1880, Springman paid $900 ; Feb. 9, 1880, Eckbert paid $250. After this, there was a Soi. Fa. issued on the judgment of the Union Bank at Huntingdon for the use of Edmund S. Doty, Jr., against W. A. Meeker, W. F. Eckbert, F. J. Schoch and A. Springman, to No. 26 May Term, 1881.' The Sci. Fa. was served on all except Meeker. May 24th, 1881, judgment was entered against Eckbert, Schoch and Springman for the sum of $2,965.49. Execution was issued and the Sheriff levied on the real estate of William F. Eckbert, and sold it •on the 3rd day of Dec., 1881, realizing sufficient money to pay the debt, interest and costs-of said judgment. 'The fund, realized was so applied. On Apr. 12, 1878 the First National Bank of Selinsgrove obtained a judgment against W. F. Eckbert for the sum of $4,800. When ’the officers found that Eckbert’s property would pay more than his share of the debt due the Union Bank of Huntingdon, they, on the 15th day of Dec., 1881, issued this attachment execution on their judgment against Eckbert, and made Schoch and Springman garnishees, and attached a coutribntive share of this debt due by them to Mr. Eckbert. Messrs. Doty, Wilson and Wiuey were not served with the attachment, not residing in the county. The garnishees then entered plea of 11 Nulla Bona” but on the 25th Sept., 1883, when the case was called for trial, Schoch admitted that there was in his hands the sum of $10 and paid the same into the Court: find Springman admitted there was $80 in his .hands, and paid the same into Court.- During the trial, it was admitted that Meeker was dead, and insolvent, .and that D. G. Winey was insolvent. The whole case'resolved itself into a question of law, and that was, whether ..Eckbert, Schoch and Springman must pay the whole of this debt, that the funds of.the Railroad Company did not pay, or .whether the same must be paid by Eckbert-, Schoch, Springman, Doty and Wilson. The Bank of Selinsgrove contended, that as Eckbert paid more than his share of the debt, after the statute of limitations had barred the claim as to Doty and Wilson, the payment that Eckbert made of more than his share of the debt, at that time, did not relieve Doty and Wilson of any portion, nor was the payment of any benefit to them ; and that consequently, Eckbert, Schoch and Springman must each pay, one-third of the debt, and that as Eckbert had paid more than his one-third, the bank had a right to recover from Schoch and Springman, their full contributive share, that Eckbert paid more than his share. The garnishees alleged, that as between the makers of a note, the statute of limitations did not bar Mr. Eckbert from recovering from-Doty and Wilson, their contributive share and therefore, Schoch and Springman were not bound for a proportionate share of Doty and Wilson to the bank, nor to any one else; and that the whole debt, not paid by the Railroad Company, must be equally borne by Eckbert, Schoch, Springman, Wilson and Doty. The Court below took the latter view of the law, and directed a verdict and payment for the plaintiff (after deducting the money paid into the Court,) against F. J. Schoch, for the sum of $45.10; and against Springman for the sum of $31.80. This left Doty and Wilson to pay their contributive shares of the debt to Mr. Eckbert. The Court, per Bucher, P. J., charged inter alia as follows : We therefore charge you, that the bank can only recover the amount that Eckbert in the judgment can recover; and that it can only recover from Schoch and Springman, the garnishees, the excess that it has paid over, and beyond what they were required to pay. That each of these parties are only bound to contribute or make good one-fifth of the excess that Eckbert paid. This amount can be determined by ascertaining what Eckbert, Schoch and Springman paid up to, and including the payment of the 16th of Dec., 1881, together with interest to that date. Doty and Wilson having paid nothing, this will show the aggregate amount paid by all. This divided b}^ 5, the number of solvent sureties were bound to contribute, will show what each one should have paid, when Eckbert paid more than his share. After ascertaining what each of the 5 are bound to pay, you will deduct the one-fifth from the amount that Eckbert actually paid, and that will show what he paid in excess of his share. And after deducting from this excess, what Schoeh and Springman respectively paid, the balance, with interest to this date, would be your verdict against the garnishees, so far as their liability to pay the common debt is concerned. The bank then took a writ of error, complaining of the portion of the charge hereinbefore quoted.</p>

<p>A man conveyed land to his wife, by deed, the habendum of which, limited it to her, so longas she bore his name ; held, that she had an estate during widowhood, which she forfeited by her subsequent marriage.</p> <p>An estoppel will not be raised, unless the case stated clearly sets forth facts sufficient to support it.</p>

Ralston,” &c., “to Henry Chrisman’s land, thence along the line of the same and Mrs. Miller’s land, 48 perches to a public road leading from French Creek Bridge across' Beaver Dam Hill,” with a plot or draft annexed. This report was confirmed by the Court on November 2nd, 1853, and after laying over a suitable time an order was issued to the supervisors of West Vincent township to open the same.

<p>Where the error assigned was that the Court below-directed a verdict, the-case will not be reversed unless all the evideu- e is printed.</p>

<p>Error to Common Pleas of Chester County.</p> <p>The suit was brought to recover the two full equal undivided one-hundredths parts of the lot known as the Bath lot, in the town of Bath in West Pikeland--township, Chester County, the lot containing- in the whole 101 and 59 one-hundredths perches. James Bones ’-was the owner of an hotel and farm -of 152 acres, -which comprised within its limits a spring known:as- the-Yellow Springs. It was a place of summer resort for visitors. - He conceived the- idea of making a town. He laid out his farm in lots,' and disposed of a few by-a lottery. The Bath lot; containing the spring;with its improvements was sold in parts to each -lot owner, one hundredth, part thereof,. Some, short time thereafter, another hotel. was erected, near the. spring. They became rival hotels. One was owned by Holman, and the other by Bones. Bones occupied up to 1830, and was succeeded by Ólwine. Mrs. Holman occupied up to 1844. The Bath lot was principally used, by the boarders of both hotels, having .free access to the springs.and Bath house. The defendant relied on, adverse possession ; second, on the presumption of the grant; and third, that Sheriff’s sale of lots 74 and 75 passed the rights in the Bath lot in controversy as appurtenant to said lots to the purchaser. The Court’s charge was inter alia ¿is follows: “But, gentlemen, the defendant has made another point, to wit: that the fight to the use of the Bath lot is appurtenant to each of the lots 74 and 75, and passed with said lots to Mrs. Holman by the Sheriff’s sale. You will recollect, that, when the sale of these lots was made by the Sheriff, nothing was said about the Bath lots; and it is these two equal, undivided, one hundredths parts, for which this suit is instituted. The plaintiff contends, that they are distinct, and separate from the lots themselves, and can be sold separately, while the defendant- avers, as-you will observe, that they are appurtenant, and were sold with these lots. It is a matter of history and notorious, that about the year 1814, James Bones made a lottery of a large number of lots of land, in what he then called the town of Bath. A draft • of these lots and of this town has been before you. Believing that the tracts would sell better by so doing, 'he attached .to each of the lots sold, a right to the Bath lot, and the spring of water therein. The lots were intended to be 100 in number, and the rights to the Bath lot were divided into 100 parts, each ■owner of a lot, holding a right in the Bath lot, in common with the-other 99. The deeds show this state of affairs, and they show, also, that the contract between James Bones and the purchasers of lots was, that the right should pot be extended beyond 100. "What then was intended by the conveyance-of one-hundredth part of the Bath lot,? Not certainly the ground; for it was undivided, and if divided, gave .no interests, could give no.-interests, without interfering with the rights,of'.others. ■. To, my mind, the rights conveyed by the deed, to one hundredth part of the Bath lot, gave simply a common right to one hundred persons to go from the high-, way to the natural spring, and to use it in common with the others. Gave simply a common right to one hundred persons to go upon all and every part of the ground, a common interest over the whole and every part, which could not be divided nor used apart, either in' one, or more-than • oue,--and“W-hich, in verity, gives a water right to the spring, which was appurtenant to -the lots. In this view of the case, the sale by the Sheriff of these lots 74 and 75, to Mrs. - Holman, passed the right in the Bath lots, now in dispute, to her, and that she-held them under that sale. I have therefore to say to you in this aspect of the case, that the plaintiff is not entitled to recover, and your verdict must be for the defendant. The verdict was tor defendant.</p> <p>The plaintiff then took a writ of error, complaining of the action of the Court in directing a verdict for the defendant.</p>

The petition for an issue was as follows: The petition of W. D. Kennedy and E. B. Silkman, assignees of the Citizens’and Miners’ Saving’s Bank and Trust Company, respectfully represents: ' That the fund for distribution in this case arises from the sale of lots No. 1 and No. 2, in block E, on the above stated judgment which was obtained on a sci. fa. sur mortgage on said lots dated 23 Nov., 1872, for $6,800.

<p>To obtain an issue to try the validity of a will, it'is not sufficient merely to allege, want of testamentary capacity; evidence which would justify the Court in sustaining a verdict that the testator was of unsound mind is-necessary.</p> <p>Undue influence must operate upon the mind of the testator, at the time-the will is made.</p> <p>Upon a demand for an issue to try the question of testamentary capacity, the Court may hear and consider evidence in support of the will.</p>

<p>Error to Common Pleas of Clearfield County.-</p> <p>This was an action of ejectment brought by William A. Wallace against James Forrest and George Hockenberry, for all that part of tract in the name of Sarah Ward, being sixty rods wide and three hundred and twenty rods in length, adjoining the John Dorsey survey, situate in Knox township, Clearfield county, Pa.</p> <p>During the trial the Court admitted the following offer:</p> <p>“Deed Dec. 15,1841. Mary M. P. Cram, administratrix of Ashbald Cram to Susan IT. Gould, Mary M. P. Cram, administratrix of Ashbald Cram, Augustus Parley, John E. Parley and Sarah A. Cram for ¶ of Sarah Ward tract. This is offered and to be followed by the record of deed payment of taxes and possession by plaintiff and those under whom he claims sin c e Dec. 15,1841.”</p> <p>Defendant objects to the record of deed for the reason that no authority is shown for administratrix to make the deed.” Objection overruled and bill sealed for defendants. The admission of this evidence forms the subject of the first error. On Nov. 29, 1871, the jury found a verdict for the plaintiff. On January 13,1872, a writ of error was taken by the de. fendant below. On March 19, 1872, the plaintiff below obtained leave of the Court to file “an amended description specially describing and pointing out the land sued for, and ■actually recovered in the action of ejectment aforesaid,” iinder the Act of March 14, 1872, Sect. 1, P. L. 25, Pur. Dig., 94. The allowance of this amendment forms the ground for another assignment of error.</p> <p>cited Mobley vs Bruner, 59 Pa., 484; Miller vs. Casselberry, 47 Pa., 378; Hagey vs. Detweiler, 35 Pa., 409; Hunt vs. McFarland, 38 Pa., 69; Smith vs. Brotherline, 62 Pa., 461. He also argued that the allowance of the amendment on the application of the plaintiff after trial, was not constitutional, as it infringed upon the right of trial by jury; and cited Trimble’s Appeal, 6 Watts, 133; Brown vs. Hummell, 6 Pa., 86; Menges vs. Dentler, 33 Pa., 495.</p> <p>cited as to the constitutionality of the Act of March 14, 1872, Little vs. Larrabee, 2; Greenleaf, 37; Rowlain vs. McDowell, 1 Bay, 490; Sleight vs, Herning, 12 Mich., 371; Edwards vs. McFadden, 20 Iowa. 520; Humphrey vs. Doggs, 1 Iowa, 435. He also argued that the Court had previously possessed the power to make the .amendment, and cited Burrows vs. Heysham, 1 Dallas, 134; Cambria Iron Co. vs. Tomb, 12 Wright, 388; Morris vs. McNamee, 17 Pa., 173; Neel vs. Neel, 59 Pa., 347; Trego vs. Lewis, 58 Pa., 463; Iven’s Appeal, 33 Pa., 237; Seitz vs. Buffum, 14 Pa., 71; Keen vs. Hopkins, 48 Pa., 445.</p>

<p>Error to Common Pleas of Bucks County.</p> <p>The facts appear in the following extracts from the charge of the Court, per</p> <p>Watson P. J.</p> <p>This suit is brought by the plaintiff to recover a sum of money claimed to be due him from the defendant ona contract. of insurance. The defendant admits the execution of the contract. A copy of it has been given in evidence. It is dated November 18,1865. It insures $1,575 upon certain personal property of the plaintiff, enumerated and described therein. The first item is “Agricultural products generally, valued at $1,000.” The second is “Farm implements generally, valued at $250.” There are other items mentioned as insured, but there is no claim for any loss upon them. The claim is only for loss upon the property embraced in the first and second items of the description.</p> <p>It appears clearly from the undisputed testimony, that at the time the insurance was effected, Mr. Eastburn occupied a farm in Falls township under a lease from his father ; that he continued io reside there for some time aiterwards, when he removed to another farm also belonging to his father in Lower Malcefield township. After he moved there he rented an adjoining farm, belonging to Isaac Brown, under a written lease, dated February 19,1878, for the term of one year from the first of April then next ensuing. He went into possession of this farm under this lease. In the following month of July* a fire occurred in the barn upon this farm by which the barn and the personal property in it were consumed. Among the property destroyed were a quantity of wheat in the sheaf, testified to amount to 150 bushels, about 20 bushels of threshed wheat screenings, 34 tons of hay, a horse power and threshing machine, and some other minor articles. These minor articles belonged to the plaintiff at the time the policy was issued, and were removed by him from the farm he occupied in Falls to the farm which he rented of his father in Lower Makefield, and afterwards from there to the farm he rented of Brown.</p> <p>Ater the fire verbal notice of it was given to Joseph Brown, who was one of the managers and a surveyor of the company defendant. At an interview between them, soon after the loss, an enumeration of the articles which had been taken from the other farm to this one was made out, and Brown told Eastburn he had no doubt the company would pay , him for the loss of them. A short time after this interview Eastburn visited Brown and made a further claim on the company for loss by the burning of hay, grain, threshed and unthreshed, and the korse power and threshing machine, which last named articles he. had bought and taken to the farm after he rented it.. Brown told him he would present this claim to the company, but he didn’t think it was covered by the policy, and he would vote against any allowance for it. Eastburn thereupon told him he thought he would be a bad'representative, and that ■ he, would take t.he claim and. present it himself at the meeting of the company. "This interview took place on the second of August, At a meeting of the managers of the company on the fourth of August Eastburn attended and presented his claim to them. They passed a resolution to pay him for the articles embraced in his first enumeration to Brown, and drew an order on the treasurer in his favor for the amount and delivered it to him* At the same meeting they passed a resolution continuing the consideration of his claim for loss of the other property until a future meeting. At the next meeting, held in the following November, the question came up for consideration. A resolution was adopted rejecting the claim and refusing to pay it. Subsequently this suit was brought to recover the loss sustained.</p> <p>. These are, in brief, the prominent facts in this case. It becomes the duty of the Court to give you instructions as to the law applicable to them. These instructions you will receive as binding upon you. The testimony is entirely for you. I do not mean to say that the facts I have recounted have been proved. I speak of them as facts testified to. Whether they are established is entirely for your consideration. The written evidence is for the construction of the Court. [First, as to the policy of insurance. It is contended by the defendant that it covered only the personal property which was upon the farm ydjere the plaintiff lived; that it was an insurance on agricultural products and fanning implements on oue farm ouly‘ and that the one where the insured lived. I am' asked to ,instruct you that the loss occurring on another, farm where -the insured did not reside cannot be recovered under the contract; that the property on the second farm was not. embraced within the terms of the policy. I cannot so instruct you.] If the company wished to restrict its liability in this m inner they should have done so in the policy itself; The policy insures agricultural products and farming implements generally. There is no locus fixed. It is not said where they are situated. It is not said they shall be upon one farm. We must construe the contract as it is in the writing. I repeat, if the company wished to restrict their liability to property in one. particular location they should have so expressed it in the contract; and .not having so expresssed it the policy insures to the protection of the insured from loss on his personal property upon the second farm as well as upon the farm -where he lived. I might give you illustrations to show the propriety of this view, but it is not necessary to do so. You will take my construction of the policy as true. If I am in error, the error can be remedied hereafter.</p> <p>The policy of insurance was as follows:</p> <p>Policy oe Insurance.</p> <p>“No. 5199.</p> <p>This policy witnessetli that Cyrus Eastburn, of the township of Falls, in the County of Ducks, Pennsylvania, member of the Line Lexington Mutual Fire Insurance Company of Bucks and Montgomery Counties,' for the insuring of real and personal property, from loss by fire and storm, pursuant to the charter and by-laws of said' company, has deposited in the hands of the treasurer of said company the sum of $3.10 premium and insurance fee. In consideration whereof, the sum of one thousand five hundred and seventy-five dollars is hereby insured by the said company unto the said Cyrus Eastburn^ his heirs, executors, administrators and assigns, on the terms; conditions and jn-ovisions in'said charter and by-laws contained upon the following property, to,wit:</p> <p>No. 1. Agricultural products g-enerally, valued at $1,000.</p> <p>No. 2. Farming implements generally, valued at $250.</p> <p>No. 3. Horses and colts, valued at $600.</p> <p>No. 4. Neat cattle valued at $150.</p> <p>No. 5. Horse power thresher, shaker, &e., valued at $100. ■,</p> <p>Whole amount estimated at $2,100. And in consideration of the above obligation of the said company, the said Cyrus Eastburn binds himself, his heirs, executors, administrators, and. assigns, truly and faithfully to comply with the constitution, rules, regulations and by-laws of said company.</p> <p>In witness whereof, the seal of the said company is hereunto affixed, and the said Cyrus'Eastburn has hereunto set his-hand this eighteenth day of November, in the year of our Lord one thousand eight hundred and sixty-five.”</p> <p>On September 22ud, 1882, the jury rendered a verdict for the plaintiff for $380.50. The insurance company then took a writ of error complaining of the charge of the Court,, holding that the insurance was not confined to agricultural implements owned by the plaintiff at the time the insurance-was effected, and also to agricultural products located upon the farm upon which he resided when the fire occurred.</p>

<p>An adult daughter, who had lived with decedent as a member of his family, is entitled to $300 exemption a ainst creditors, in the absence of a widow and minor children.</p>

<p>Error to Common Pleas No. 2 of Philadelphia.</p> <p>This is an amicable action to determine whether or not a mechanic’s lien, filed by plaintiffs against certain houses, upon which the. defendant had mortgages, is entitled to priority, in the proceeds of a Sheriff’s sale, to that part of the mortgages which was given to secure advance moneys. The plaintiff’s base their claim upon the fact that work was commenced upon the buildings prior to the recording of the mortgages. The controversy arose in the following manner:</p> <p>In the fall of 1876 the defendant and Thomas T. Elwell made an agreement, whereby the said Elwell was to purchase of defendant a'certain triangular lot of ground, situate in the Twenty-third "Ward of the City of Philadelphia; to divide the same into sixteen smaller lots and erect upon each a three-story brick house, and to secure the defendant for the amount of purchase money and the total amount of moneys to be advanced by defendant towards the erection of said houses, by first mortgages upon each house and small lot for the sum of $2,000, of which $927.86 7-16 was for purchase money, and $1,072.13 9-16 was for advances thereafter to be made. This building agreement, the deed for said large lot, and said mortgages are all dated November 6,1876, and were all recorded December 6,1876.</p> <p>The plaintiffs, having furnished the lumber for use in said houses, on the 4th December, 1877, filed their lien against the same for the total sum of $3,987.87, the value of the material furnished.</p> <p>On January 2’6,1878, the defendant obtained judgment in foreclosure of said mortgages, and on March 4, 1878, the said sixteen houses and lots were sold at Sheriff’s sale to defendant for the sum of $1,800 each. The Sheriff having made a special return of said sale, to enable the defendant to receipt for the purchase money as a lien creditor, the plaintiffs were about to file exceptions thereto, in order to contest with the defendant the said claim of priority to the advance money part of said mortgages, when the defendant offered and gave his bond in the sum of $8,000, conditioned for the payment of all money found to be due plaintiff upon the trial of this question. On April 13, 1878, an amicable action in debt was brought upon said bond.</p> <p>On the trial, the plaintiffs, after giving in evidence the bond •upon which suit is brought, the said building agreement, deed, and mortgages, recited in the bond, called Thomas T. Elwell, the purchaser and mortgagor, who testified that the said deed and mortgages were delivered on Friday, December 1, 1876 ; that Mr. Yardly, who had drawn the papers, and to whom he was referred by the defendant, as having entire charge of the matter on his behalf, then told the witness that all was right and to go ahead with the work; that the deed was left with Mr. Yardley at his request, and upon his saying he would have, the papers all recorded and taken care of; that on the following Monday, December 4,1876, he (Elwell) with a number of his employees, commenced digging the cellars ; that the plaintiffs had furnished the lumber for the sixteen houses and the bill attached to their lien was correct.</p> <p>The defendant’s evidence was to the effect that the deed had been delivered to Mr. Yardley, to be held by him until Elwell should provide certain security, etc., or, as the defendant him. self testified, till Mr. Yardley “was satisfied everything was all right.”</p> <p>The Court being of the .opinion that there was “no evidence of the delivery of the deed prior to December 6,1876,” directed the jury to find a verdict for the defendant, which was accordingly so done.</p> <p>The Planing Company then took a writ of error, complaining of the action of the Court in directing a verdict.</p>

The facts of the case appear in the opinion ot the Court below, which was delivered on February 5th, 1884, per Elwell, P. J. Rule on the Commissioners of Columbia County to bring an ■action of ejectment in ninety days or show cause why the same cannot be brought. This proceeding is under the Act of 11 June, 1879.

<p>Appeal from Orphans’ Court of Bradford County.</p> <p>The auditor appointed to distribute the estate of Isaiah Gilmore found the following facts, inter alia :</p> <p>Second. Noble Macer, deceased, then a resident of the city of Baltimore, died suddenly in that city in 1859. lie was unmarried and without issue, and left to survive him a brother, Noah Macer, and a sister, Harriet 'Gilmore. He left an estate consisting of about ten thousand dollars in cash, one house on Little Monument street, one horse and dray, and a lot on Division street, on which he had created a ground rent of $30. His estate Avas administered by Simon Smith, who settled an account in the Orphans’ Court there. His estate was equally divided between his brother, Noah Macer, and his sister, Harriet Gilmore, each receiving in all about six thousand dollars.</p> <p>Third. Noah Macer, the brother, died about 1872 or 1873, leaving a Avidow, Ellen Macer, two children, Noble and Anna Maria, (hoav the wife of Horace Williams) and three grandchildren, James, Edward and Lewis, these three being the children of Elizabeth Breckenridge, a deceased child of said Noah. The two children and three grandchildren named are the only living descendants of Noah Macer. He left no brothers or sisters surviving him. His widow, Ellen Macer, is living in Canton township, where her children also reside. The residence of Elizabeth Breekenridge’s children does not appear in evidence. Noah Macer moved with his family from Baltimore to Canton township, about 1861 or 1862, where he bought a farm and where he died.</p> <p>Fourth. Harriet, the sister of Noble Macer, deceased, Avas married to Isaac Gilmore in Baltimore about 1830, and the only issue of this marriage was one son, Isaiah Gilmore, (who was born in that pity about 1832 or 1833) the decedent.</p> <p>Fifth. Isaac Gilmore, the husband of Harriet, separated from his wife, and for several years neglected to provide for her and his child. They were supported and cared for by and lived with her bachelor brother, Noble, she keeping house for him in Baltimore. Isaac died a number of years ago — -just, when does not appear. He accumulated no property and left none. His father and mother were dead. No sisters or brothers nor any descendants of such survive him, except John, a. brother, who claims this' fund as uncle and i ext of kin tó Isaiah, the decedent.</p> <p>Sixth. About 1860, Harriet Gilmore and her son, Isaiah, moved from Baltimore into Bradford County, Pa., and settled on a farm in Canton toAvnship, in said county. This tarmj containing about 57J acres, was conveyed to Harriet by Sheldon H. Bindley and wife by deed acknowledged Dec. 19,1860, the consideration being $1,625, which was paid out of the fund which she derived from the estate of her brother, Noah Macer. She stocked- the farm, and she and her son lived thereon until her death, which occurred in June or July, 1871.</p> <p>Seventh. Before the death of Harriet, her son, Isaiah had contracted intemperate habits, was frequently intoxicated, and by the common speech of the neighborhood where he lived he was a common drunkard.</p> <p>Eighth. Harriet left a will as follows:</p> <p>“In the name of God, Amen. I, Harriet Gilmore, of the -“Township of Canton, County of Bradford, and State, of Pennsylvania, widow, having arrived at an advanced age, and “being weak in body, but sound of mind and memory, and “considering the uncertainty of this transitory life and of all “human events, do make and publish this my last will and “testament in manner and form following, to wit:</p> <p>“First. It is my will and I do hereby order and direct that “all my just debts, if any may remain, and funeral expenses “be duly paid and satisfied as soon after my decease as it “conveniently can be done.</p> <p>“Second. I give and bequeath to my son, Isaiah Gilmore,“all my estate, both real and personal, that may remain at my “decease to be and remain under the care and direction of a “guardian for his use .and benefit,' except what I have hereinafter otherwise devised.</p> <p>“Third. I give to the children of my niece, Elizabeth Breckinridge, now deceased,whom I brought up in my family from “the age of six or seven years until her marriage, the sum of “three hundred dollars due me from my brother, Noah Macer, “to be collected by her husband or guardian of said children “and placed at interest for their benefit, the principal to be “paid to them severally as they may become of age, and the “interest to be paid annually to. their father or guardian “toward their support, and which shall be strictly so applied “to the satisfaction of my executor.</p> <p>“Fourth. I do hereby order and direct that a certain lot “which I now own in the City of Baltimore, in the State of “Maryland, be sold by my friend Simon Smith, of Baltimore, “and the avails paid to my executor for the benefit of my son, “Isaiah, and placed at interest for his use.</p> <p>■ “Fifth. I hereby appoint my friend, William S. Jayne, of “Canton Township, County of Bradford, and State of Pennsylvania, to be the executor of this my last will and testa“ment, to see that the same is fully carried into effect; and “further, I hereby also appoint the said William S. Jayne to “be the guardian perpetually over the property devised to my “son, Isaiah Gilmore, with full power and authority to appoint “a successor in case of death, removal or any inability to longer “serve, to see that his estate hereby devised both real and personal be properly taken care of, and not permit him to “squander the same in any useless manner or enterprise so far “as it can reasonably bejlone by the guardian, but that it may “all be strictly applied for his benefit during his life time in “such manner as shall be for his comfort; and further, I hereby “authorize and empower my executor if it should at any time “become necessary under any circumstances hereafter in his ^judgment or that of his successor, to sell all my real estate “and secure the avails on bond and mortgage at interest for “the use of my son, Isaiah Gilmore, during his life time ; and “further, I desire my executor, or his successor as guardian, to “call the attention and consult my esteemed friend, Simon “Smith, of Baltimore, Maryland, at any time before a sale is “made of the same, if living.</p> <p>“In witness whereof I have hereunto set my hand and seal “this first day of May in the year of our Lord one thousand “eight hundred and seventy-one.</p> <p>“Signed, . HARRIET GILMORE, [seal.]</p> <p>“By her order and in her presence.”</p> <p>“Signed and sealed in the presence of us who have hereunto “subscribed our names in the presence of each other.</p> <p>“Signed, ORRIN C. HORTON,</p> <p>WM. B. BARNES.</p> <p>“I, Harriet Gilmore, the within mimed testator, do hereby “make and publish this codicil to be added to this my last “will and testament in manner following, to wit: .</p> <p>“I hereby fulty revoke that part of article fifth which requires my executor to consult my friend, Simon Smith, of “Baltimore, Maryland, before acting in.any matter in relation “to the settlement of my estate. In witness whereof I have “hereunto set mv hand aud seal this fifth day of June in the “year A. IX, 1871.</p> <p>Signed, HARRIET GILMORE, [seal.]</p> <p>“By her order and in her presence.”</p> <p>“In presence of</p> <p>“Signed, O. O. HORTON,</p> <p>WM. B. BARNES.”</p> <p>W. S. Jayne, the executor named in the said will, caused the same to be duly probated, and letters testamentary were duly issued to him on the 1st day of August, A. D. 1871, by O. E. Gladding, Register for the probate of wills in and for the County of Bradford. Said Jayne entered upon his duties as such executor, and also as testamentary guardian or trustee of the estate which Harriet Gilmore by said will had given, bequeathed and devised to her son, Isaiah, said Jayne by said will having been appointed such testamentary guardian or trustee.</p> <p>. Ninth. The stock and personal property on the farm, and also the household furniture which were left by Harriet Gilmore, were, soon after her death, turned over by the executor to Isaiah.</p> <p>Tenth. The executor bought a house and lot (one acre) in Canton township, which was deeded by Robert Sawyer and wife to “’William S. Jayne, executor and trustee of the estate of Harriet Gilmore,” by deed acknowledged the 3d day of April, A. D. 1872, the consideration being $250. W. S. Jayne takes credit in his partial account as trustee for the sum of $250, as “paid M. O. Wright on contract for house and lot.” The evidence does not disclose whether this is the same house and lot bought from Sawyer and wife. The house and lot was never disposed of by Jayne, but remains the property of the estate.</p> <p>Eleventh. The farm was sold by the executor, under a power in the will of Harriet Gilmore, to Solon J. Hickok, by deed bearing the date April 23, 1872, acknowledged same day for $3,000; $500 was paid down, and the residue was secured by bond and mortgage on the place. Part of the money so secured was collected by said Jayne as testamentary guardian or trustee, and the remainder thereof by T. S. Manley, administrator of the decedent, as shown by their several accounts.</p> <p>Twelfth. Isaiah Gilmore died intestate on or about the 28th day of October, A. I). 1875. Having never married, he left neither widow nor children. Letters of administration were duly granted to T. S. Manley on the 5th day of March, A. D. 1878, who administered upon said estate.</p> <p>Thirteenth. Vm. S. Jayne, as executor of Harriet Gilmore, filed a partial account and also a final account, which last was finally confirmed by the Court May 8,1879. His final account .as such executor shows a balance in his hands of $130.46. As testamentary guardian or trustee, he also filed two accounts, a partial account and a final account, the latter having been finally confiiuned by the Court Feb. 6,1879. This final account .as trustee or guardian shows a balance in favor of said Jayne of $306.85. The difference between the two said final accounts in favor of said Jayne, is $176.39.</p> <p>Fourteenth. T. S. Manley filed a “first and final” account of Lis administration in the Orphans’ Court of Bradford County, which was finally confirmed by said Court Sept. 4,1879. This account shows a balance in the hands of said administrator of .$1,381.97, which is the fund for distribution.</p> <p>Fifteenth. The fund for distribution is the residue of the proceeds of the sale of the farm sold by ~W. S. Jayne, executor to Solon J. Hickok.</p> <p>His conclusions of law upon the facts found were as follows:</p> <p>Sixth. The foregoing disposes of all questions except the •conflicting claims of the children and grandchildren of Noah Macer upon the one side,, and of John Gilmore upon the other. The former claimants are the cousins and the children of a deceased cousin of the intestate on his mother’s side, and the latter claimant, John Gilmore, is the intestate’s paternal uncle. If the land was not converted into personalty by the executor’s sale of it, under the power in the will, then John is not entitled, for he is not of the blood of the first purchaser; Act of April 8, 1833, Sec. 9, Br. Purd., p. 808, Sec. 27. On the other hand, if by the sale the proceeds became personalty, then this fund must go to John Gilmore, as next of kin, under the 7th section of said Act; Br. Purd, 808, Sec. 24. The next of kin .are to ascertained by the rules of the civil law ; 45th Penn? St. B., 430. By these rules John is related to the intestate in the third degree of consanguinity, whereas the children of Noah Macer are in the fourth degree. The principal question, then, is, did the executor’s sale of the farm convert the proceeds into personalty, or do they retain the character of land, and descend as such ?</p> <p>Quite a large number of authorities were cited by counsel for either side, and the counsel for the Macer children filed with the auditor a number of propositions, with the request that he find the same as conclusions of law. The citations and the propositions are all annexed to this report.</p> <p>It cannot be denied that this is a ease of a naked power, which was exercisable at the discretion of the executor. The following is the language of Judge Pearson in his charge in the case of Stoner vs. Zimmerman, and was fully approved by the Supreme Court in the same case; 9th Harris, 394. “There “is no principle better settled in equity than that money“directed or agreed to be laid out in land, is to be considered “as such, and, e converso, land ordered or agreed to be concerted, is considered as money. But to establish a conversion ‘Bhe will must direct it absolutely, or out and out, irrespective “of all contingencies, and independent of all discretion * * “The direction to convert must be positive and explicit, and “the will, if it he by will, or the deed, if it be by contract, “decisively fix upon the land the quality of money. * * * “It must imperatively direct that the land shall be sold. “Judge Kennedy says that the sale must be absolutely and “positively directed, and the land is then converted into money “from the time of the testator’s death.”</p> <p>Notwithstanding the above language it is conceived that the rule which requires a positive direction to sell independent of all contingencies and discretion, in order to work a conversion, has been applied only to cases where there was either an unauthorized sale, or where there was no sale at all, but where it was claimed that a naked authority to sell worked a conversion' of itself under the IStii section of the Act of. 24th February, 1834, which gives to executors possessing only a naked authority to sell real estate the same interests therein, and the same powers and authorities over such estate for all purposes of sals and conveyance, and also of remedy by entry, action nr otherwise, as if the same had been devised to them to be sold. Such was the case of Chew vs. Nicklin, 9 Wright, 84. There was no sale in fact. The simple question was whether a bare power to sell worked a conversion. It was held that it did not. In the case of Stoner vs. Zimmerman, supra, the power of the executor to sell rested in the discretion, not of himself, but of the heirs, one of whom, without having exercised that discretion in favor of a sale, died, leaving a daughter, Barbara. The sale was made and it was held not to have worked a conversion of the interest of Barbara, but that the proceeds descended to her as land. This was on the ground_that the sale as to her interest was unauthorized. Nagle’s Appeal, 1 Harris, 260, was a case similar to the last. The devise was to the testator’s widow during widowhood, and after her decease, if a majority of the children agree, land was to be sold. One of the children died in 1845, and the widow died in 1847. The sale took place after the widow’s death. Of course the interest of which the child died seized was a real interest. At the child’s death the sale had not taken place, nor had there at that time been any agreement of a majority of the children to sell. No agreement to sell would have been valid unless made after the widow’s death. The child’s interest was held to he realty. If there had been an agreement of a majority of the heirs, and a sale had taken place in the lifetime of the deceased child, and after the widow’s death, there can be no doubt that a conversion would have taken place, though there was no positive or express direction to sell, and though the sale depended solely upon the contingency of such agreement, and rested entirely in the discretion of the heirs. Lloyd vs. Heart, 2 Barr, 473, was a case where real estate was sold by the committee of a lunatic under an order of Court for maintenance and to pay debts. In this case, upon principles peculiarly applicable to the situation and property of lunatics, it was held that the sale did not work a conversion. Mr. Justice Coulter, in Dyer vs. Cornell, 4 Barr, 359, says that the decision in Lloyd vs. Heart “was bottomed on the provisions of the statute authorizing the sale and the idiosyncrasy of the state and condition “of the unfortunate subjects of that statute.” There can be no doubt that Isaiah G-ilmore was the victim of intemperance at times. It is equally clear that his mother had that fact in mind when she placed the property under the control of a trustee; but can it be argued thence that this vice was her only motive for creating the trust, or would the auditor be justified in holding Isaiah’s condition to be on a footing with that of a lunatic upder a committee. The difference is too apparent for argument.</p> <p>' The cases above reviewed are believed to be the principal Pennsylvania cases relied on by counsel for the Maeer children. An English case, that of Ackroyd vs. Smithson, Lead. Cases in Eq., Vol. 1, page 809, (H. & W.) has been strongly urged upon the attention of the auditor, and is claimed to be decisive of the case in hand. It was this: The testator gave several legacies, and ordered his real and personal estate to be sold, his debts and legacies to be paid out of the proceeds arising from the sale, and the residue thereof he gave to certain legatees, in the proportion of their legacies. He gave nothing to the heir at law, nothing to his next of kin. Two of the residuary legatees died before the death of the testator. Held that the two shares, so far as they were constituted of the proceeds of land, should descend to the heir, and so far as they arose from the sale of personal property to the next 'of kin. The opinion does not appear in extenso in the report of the case, but the syllabus indicates that the decision went upon the ground that the two shares were lapsed legacies. The elaborate argument of the counsel (afterward Lord Eldon) for the heir, proceeds, however, upon the ground that “where the “testator directs real estate to be sold for special purposes, if “any of those purposes become incapable of taking effect, the “heir at law shall take, because there is an end of the disposition when there is an end of the purposes for which it is “made.” And this is the principle upon which the Macer children, through their counsel, claim this fund. There are some respectable dicta in our own reports in support of this view, but no case appears to be decided upon the ground stated, especially where the land has been sold under a power during the life of the beneficiary.</p> <p>• Among the cases cited on behalf of John G-ilmore, several were cases of sale under order of Court, where the proceeds wei’e decided to be personalty. It is intimated in some of our cases that there is a difference in the character of the proceeds where a sale is made under a power, and when under an order of Court. Without attempting to decide whether this is so, the auditor is content to examine only cases of sale under power in a will. In the case of Wharton vs. Shaw, 8 W. and S., 124, the testator devised as follows : “The remaining equal “fifth part of the residue of my estate I give and devise to “Mary Shaw, my said daughter, her heirs and assigns, in trust “that she shall use the rents, issues and the profits thereof, and “the interest thence arising, for the benefit of my son, Samuel “Burgess Shaw, in such manner and at such times, and in such “proportions as she shall judge proper during his natural life, “but so that the same shall not be liable to the debts of said “Samuel; and after the death of said Samuel, that she convey “the said devise (being the remaining equal fifth part of the “residue of my estate) to such child or children as the said “Samuel shall have in equal proportions in fee tail.” After which the testator appoints his son, Thomas Shaw, and his daughter Mary Shaw, executor and executrix of the same, thereby also “giving to them full power and authority to sell, “convey or alter the whole or any part of his estate, but directing that the proceeds thence arising be settled in the same manner as the property sold would according to the directions of his, will have been, in case it had not been sold. The personal estate proved insufficient to pay the debts, and the executors, under the authority in the will, sold the land. It was decided that the interest of Samuel Burgess Shaw was personalty, upon two grounds. First. That whenever a bequest is made of personal estate in terms that would create and pass an estate tail, if it were real, the legatee will take an absolute interest in the same. Second. That the property being changed by a sale under an authority given by the testator himself it can no longer be considered real estate, unless from his will it appears clearly to have been his intention that the money which might arise from the sale should be considered real estate, or be again vested in the purchase of other real estate. It nowhere appears from the will of Harriet Gilmore that if a sale should be made of the land, in pursuance of the authority which she gave the executor, the proceeds were to be considered real estate, nor does any direction in the will require that such proceeds shall be re-invested in real estate. On the contrary, the testatrix requires that the executor “shall secure the avails “on bond and mortgage at interest for the use of Isaiah “during his lifetime,” thus indicating a clear intent that the proceeds shall in fact be personalty. It would seem, therefore, that if the character of the proceeds depend upon the intent of the testator as disclosed by the will, (which is claimed to be the law in many cases) then the will of Harriet Gilmore itself stamps the fund as personalty. On the argument it was urged on behalf of the Macer family that Harriet did not convert the property herself, and that it was not converted in her lifetime. Perhaps not, strictly speaking, yet the authority by which it was converted was given by her, and lived after her death. It was exercised in the lifetime of Isaiah, the beneficiary, and by its exercise the proceeds vested in him as personally. “The general rule is that if land be sold for aspecific “pur]lose the surplus money shill, as between the kin and next “of kin, he considered as land so far as to vest in the persons “who would have been entitled to it had it remained unconverted. But, after it has so vested in the person entitled, it is “to be treated as money in his hands, and in case of his subsequent death, goes to his personal representatives as personal “estate.” Pennell’s Appeal, 8 Harris, 517.</p> <p>The auditor deems it unnecessary to examine further the cases cited by counsel. "Wharton vs. Shaw and Pennell’s Appeal standing unimpeached in our law, appear decisive of the question in favor of the claim of John Gilmore. In the case of Ackroyd vs. Smithson, the two shares in dispute never vested in the parties appointed in the will to receive them. The parties died before the testator.</p> <p>The Orphans’ Court confirmed the report, and Noble Macer et al. appealed.</p> <p>cited Lanes’ Appeal, 28 Pa., 487; Kraut’s Appeal, 60 Pa., 380; Danner vs. Shisler, 31 Pa., 289; Ortt’s Appeal, 35 Pa., 267; Simpson vs. Kelso, 8 Watts, 247; Lloyd vs. Hart, 2 Pa., 475; Earp’s Appeal, 75 Pa., 119; Ashhurst’s Appeal, 77 Pa., 464; Ackroyd vs. Smithson, 1 Leading Cases in Equity, 809; Blight vs. Bank, 10 Pa., 131; Robert’s Appeal, 3 Wr. 417; Culbertson vs. Duly, 7 W. & S., 195; Neff’s Appeal, 52 Pa., 326; Nagle’s Appeal, 13 Pa., 264.</p> <p>cited Morrison vs. Semple, 6 Bin., 94; Smith’s Appeal, 23 Pa., 9; Braden vs. Cannon, 1 Gr., 60; Burd vs. Burd, 40 Pa., 182; Mandersen vs. Lukens, 23 Pa., 31; Passmore’s Appeal, 23 Pa., 381; Rewalt vs. Ulrich, 23 Pa., 388; Letchworth's Appeal, 90 Pa. 175; Womrath vs. McCormick, 51 Pa., 504; Fahrney vs. Holsinger, 65 Pa., 388. The estate was converted into personalty by the sale, Wharton vs. Shaw, 3 W. & S., 124; Pennell’s Appeal, 20 Pa., 517.</p>

<p>Appeal from Common Pleas of Berks County.</p> <p>John S. Kershner and one Reinhart were engaged in keeping store in Shoemakersville, Berks County, and were occupying the store room in the hotel building of Samuel Unger. In the Spring of 1875 the partnership was dissolved and the business thereafter conducted by Kershner until the 7th of May, 1877, when he made an assignment for the «benefit. of creditors to Samuel Hoffman and Amos. B. Wanner. Alue E. Unger, the: appellant, then about 24 years of age, was boarding with his-father, Samuel S. Unger, who wa3 conducting the hotel. A clerk being needed, young Unger did the clerking during the two days occupied in the appraisement, and a3 Kershner had no clerk, Unger continued to act as clerk in the store, often, having sole charge, without further engagement on contract down to the time of Kershner’s assignment in May, 1877?. So far as the testimony discloses, he appears to have attended to his duties faithfully and to the entire satisfaction of' Kershner, who permitted him to take money and goods out of the: store as he needed them, on account of his services — he charging himself with them in the back part of the blotter, where Kershner also kept a private account. Nothing was ever said by Kershner to him in reference to the charges, which footed up about $230, during the whole period of service. After the assignment the assignees kept the store open about a month, during which time young Unger continued to conduct the business without any special bargain, aud subsequently presented his claim to the assignees for services, at the rate of $40 a month, for a period of 25 months, less the amount charged against him in the books — the net claim being $720. Of this sum $40 was' claimed for services to the assignees, $200-as preferred wages and a dividend on the balance of $480.</p> <p>That the services were rendered as claimed, and that they were worth $40 a month, the claimant paying his own board, was not disputed, but the claim was objected to on the ground that Samuel S. Unger, the father of the appellant, was a secret partner of Kershner’s, and that as one of the conditions of the partnership, he had engaged to furnish a hand in the store -r that the claimant was.the hand; and that as there was no profit in the business, he could recover no wages for his services.</p> <p>The auditor’s report, so far as it related to A. F. Unger’s claim, was as follows :</p> <p>With respect to this claim two questions were presented, viz:</p> <p>1. Whether Kershner is liable to pay claimant for the time he was attending the store as a clerk.</p> <p>2. What preference is to be given to the wages of a clerk.</p> <p>The first question, whether Kershner is liable to pay claimant for the time he was attending the store as clerk, resolves itself into the simple question, whether there was a partnership existing between Samuel S. Unger, the father of the claimant, and John S. Kershner and whether this claimant was not attending in the interest of his father. If such is the case, it will not bo necessary for the auditor to consider the second question presented. Justice Sharswood says in Irwin vs. Bid-well, 22 P. F.Smith, 224, “There are three classes of cases in which parties may become liable to other persons as partners:</p> <p>1st. When they are actually partners inter se by express agreement.</p> <p>2d. When not being partners inter se, or entitled to any share of the profits, they hold themselves out to the world as such by acts or declarations, and the particular creditor who sues treats them as partners on the faith of such acts or declarations.</p> <p>3d. When there is an agreement to receive a share of the profit as such, and not a mere eommission on profits or a sum equal to a certain share of the profits as a compensation for services.</p> <p>It is clear that under the first two classes, John S. Kershner and Samuel S. Unger were not partners, and it is now only for the auditor to determine whether or not under the third class a partnership existed or can be found. Considerable testimony was taken relative to the claim. In the first case what are the facts of the case. Alue F. Unger, a son of Samuel S. Unger, who is now deceased, and whose lips are now forever closed from giving the true history of the case, presents a claim of $1,000 for two years’ service in attending in the store of John S. Kershner. This claim was afterward reduced to $720, which amount your auditor is asked to allow. It,is not denied that the claimant actually rendered the services for which .he asks compensation. Thus far there is no variance between the statements of the parties. The claimant further testifies as follows: “I had no contract for compensation; I got from time to time articles and money out of the store as I needed them, and charged myself in the book with what I got; I am charged with between $200 or $300; the books will show how much.” In cross examination he further says: “No contract was at all between myself and Kershner; I never spoke to Kershner what I was to have or to get; not a word ; did not know while I was there that my wages were to . depend upon the profits of the store.” The only evidence as to his employment is, that when Kershner had bought out Keinhart, a former partner, and they were making an appraisement of the goods, Kershner came up to Unger (the claimant) in the bar-room and told him to come and clerk, “and from that time,” he says, “I clerked on without making any contract or saying anything about it.” It seems very strange, indeed, that a young man of such business qualifications, more than ordinary intelligence, should upon such' asimple, plain request, render services to another for the term of. two years and make no claim for wages, never speaking a word about it, nor concerning himself ■in any way how, what or when he should be paid, never presenting his claim until the auditor is about to make up his report. Such is the nature of the evidence of this claimant. On the other hand Mr. Kershner, the assignor, says that he clid not say to claimant, when they were taking the appraisement, that he should come over and clerk for him. Repeatedly he testifies that he did not order him there ; that he never employed him ; that he never liked him ; never had any bargain or contract with him nor that he was ever asked about any wages, corroborating in chief the claimant. In the absence of an express promise, the law presumes the undertaking to have been made, and it could be only on the ground of an implied assumpsit that this claimant could ever recover. The inienti’on of a party to any transaction can be gathered from his acts in connection with the surrounding circumstances, and it is from the silent language of men’s conduct and actions that the law implies contracts and promises as forcible and binding as those that are made by express words. Thus it will be for the auditor to examine carefully the situation, conduct and relation of these parties to each other, together with all the surrounding circumstances and see whether an implied contract can be legally inferred to exist betioeen the parties. The only grounds on which it is contended that an implied assumpsit exists is, First, that Kershner acquiesced in the services, and, Secondly, That he acquiesced in the claim, and from time to time taking money and goods from the store. The first proposition is explained by setting up the partnership between JUershner and Unger, the father of the claimant, and that the claimant acted in place of the father. Kershner testifies that ■“the bargain was that Samuel Unger was to have one-half oí the profits, and then he was to furnish one hand. His son, Alue, was to attend the same way that I did,” and then goes on to say that he never employed him, &c., &c. “This was a a secret understanding between the parties and not known to any one. Was not intended to be made public.” In corroboration of this evidence several witnesses are called who seem to know nothing about it, except Aaron Kershner, who says: í¿I'had a conversation once with Al. Unger about his attending in the store. I asked, him about it. lie said they were the next thing to partners, or something like that; said nothing about services or wages.” Geo. Unger says: uIIe (meaning his father) never told me as to being a partner, but said he was to have a share, half of the profits, by way of rent, for payment of rent.” In further corroboration, Amos B. Wanner, Esq., is called, who testified: “In the evening, about the close of the sale, Mr. S. S. Unger told me that he had an interest in’the store, and that his son, Alue E. Unger, was attending in the store in his interest; that he did not know whether he (meaning Alue) was getting anything or not; that therefore he had rented the store for $100, and that he would not do it any longer, and insisted upon having $200. This conversation took place after the insolvency of S. S. Unger, and seems tobe the keynote of the 'entire transaction. Why an increase of rent and no more partnership if Samuel S. Unger had no interest in this store ? If the room was worth $200 a year rent at that time, was it not worth the same, or even more, twa years prior, when business and trade were better and real estate had not depreciated so much in value? Can ice not conrlu/Le that the difference between the rent was a sufficient inducement for a partnership between the parties compared with the amount of capital invested ? It is a well settled principle that an agreement whereby persons are entitled to an equal share in the profits of a business for which money is supplied by one only constitutes a partnership; Gregg Township vs. Half Moon Township, 2 Watts, 312; Purviance vs. McClintee, 6 S. & R., 259; Ditsehe vs. Becker, 6 Phila., 176; Holler’s Estate, 3 Brewster, 164. In Purviance vs. McClintee supra Ch. J'. Tilghman says: “If it be agreed that A should furnish all the stock and B contribute his services, in consideration whereof he shall be entitled to one-half of the profits without being subject to any part- of the loss. It is all very fair and very well between A and B, but to the world, who have no means of knowing the secret agreement of parties, such a condition is not to be permitted. The partnership creditors trust to the partnership stock, and therefore no man shall be allowed to lessen the stock by taking part of the profits without incurring the responsibility of a partner. The law was so laid down in Grace vs. Smith, 2 W. Black. 998. “Every man,” saysCh. J. Ur. Gray, “who has a share of the profits of a trade ought also to bear a share of the loss, and if any one take of the profits he takes part of that fund on which the creditor of the trade relies for his payment.” The same principle was expressed by C. J. Eyre in Waugh vs. Carver, 2 H. Black, 285, citing and relying on Grace vs. Smith, supra. In the present state of this world, we cannot aflord to part with any of the safeguards against frauds. It is impossible to know the secrets of merchants. It is of importance that creditors should not be deprived of that fund to which they looked for payment and to which they had a right to look, as it was a visible sign held out to them by which they were to judge the amount of the partnership property. Every man who trusts the partnership increases that fund upon the faith of its being applied in the first instance to pay the partnership debts, and therefore no man shall be suffered to diminish it upon pretence of taking part of the profit as a compensation for his services, without being himself responsible in case of loss. If he was to take half of the profits, he was, by operation of the law, a partner.” The opinion answers the point of the learned counsel relative to there being no agreement as to losses. In the face of such authorities as above cited, and considering the evidence before your auditor, together with all the surrounding circumstances, and the acts of the parties, the long silence of the claimant as to any demand for compensation, there is no question in the mind of the Auditor that there was a secret partnership between the parties, and further finds the fact.</p> <p>As to the second point, that Kershner acquiesced in the claimant taking from time to time money and goods from the store. This is explained on the part of the assignor very forcibly as follows: “I let him take them because I thought the profits would be more than he would take out. I thought half the profits would be more. I thought it would make no difference whether it went to Sam Unger or his son.” These charges of the claimant were made in the back part of the blotter, the same place where Kershner also kept his private account. The principle as laid down in Neal vs. Gilmore, 19 Penn St. R., 421, and cases there cited that'nothing is better settled than that while the performance of labor for one by another raises an implied assumpsit to compensate it, yet, this implication may be rebutted by pi oof of circumstances showing such a relation between the parties as repel the idea of contract. Although in that case the parties were relatives of the deceased, yet in this case the claimant is a son of the partner, who enters the store in his father’s behalf and interest as his father’s representative or agent. In accordance with the foregoing views the auditor cannot allow the claim, and sustains the objections as made on the part of the creditors.</p> <p>The Common Pleas overruled exceptions and confirmed the report. Unger then appealed.</p> <p>argued that where an Auditor’s conclusion is a deduction from other facts, it is subject to revision and correction; Philipps’ Appeal, 68 Pa., 130; Hindman’s Appeal, 85 Pa., 466. He also argued that if there had been a partnership it had been dissolved and after that Unger was entitled to compensation.</p>

<p>Where a part of a lot of ground is sold subject to the ground rent against the whole lot, a subsequent owner of the part can not call upon the other part for contribution to pay the ground rent.</p>

<p>Appeal from the Orphans’ Court of Philadelphia County</p> <p>The adjudication was as follows:</p> <p>Tnoinas Bradfield, Esq., appeared as counsel for the accountant, who also appeared in person.</p> <p>M. Luther Kohler, Esq., appeared as counsel for Mrs. Eme-Jine A. Potts, claiming as widow of decedent.</p> <p>Mrs. Emma Waterhouse, formerly Potts, and from whom decedent was divorced, by a decree of the Court of Common Pleas of this County, on April 11, 1863, also appeared in person.</p> <p>No creditors appeared, and no claims were presented.</p> <p>The decedent died July 25,1879, intestate, leaving surviving him his widow, Mrs. Emeline A. Potts, and one son, the accountant, whose mother is the divorced wife of decedent.</p> <p>Upon proceeding to consider the annexed account it was found to be correct, so far as respects expenditures by the accountant: but Mr. Kohler objected to the commissions claimed, and the allowance asked for counsel fee.</p> <p>The ground taken for the objection of Mr. Kohler was that the accountant improperly took out letters of administration, not being entitled to the same, as against the widow of decedent. That he had rendered no services in the settlement of the estate. That he did not file his account at the end df the year after grant of letters, and then not until citation and peremptory order of the Court.</p> <p>Prom'the evidence it appeared, as stated, that decedent died July 25,1879, and letters of administration were not taken out. by his son until August 11, 1879.</p> <p>Decedent was, then living with his wife; and if the wife had promptly applied to the Register, she, no doubt, would have received-letters.of administration ; and if afterwards she had applied, the Register would- have been obliged to vacate the letters granted to the son, upon proof of the marriage to decedent, which took place on April 30, 1863 — nineteen days after his divorce from his former wife.</p> <p>But she did not make any application, and must now be held to have waived her right to administer. Bnder these circumstances the administrator would be entitled to compensation for his services, had he otherwise acted properly and according to law. But it seems he did not comply with the bond when he took out letters, nor with the requirement of the Act of Assembly, and file his account at the close of the year. Instead of that he obliged the widow to cite him'to file his account, interposed an answer thereto, causing further-delay, and filed his account under order of the Court on Jam, uaiy 15, 1881, five months after it should have been filed. ’In view of these facts he has forfeited his compensation, and it is-no reply to the objection thereto to urge his refusal to recognize the second marriage of his father. lie should perform his duty, and the Court would pass upon the right of the widow as a claimant. For the reasons set forth the commissions claimed are disallowed.</p> <p>But the allowance for counsel fee is a proper credit. It is not excessive, and the accountant was entitled to spend a reasonable amount for the employment of counsel.</p> <p>Mr. Kohler further claimed on behalf of the widow of decedent thats he be awarded the sum of three hundred dollars in cash, out of the balance in the hands of the accountant, as her exemption under the Act of 1851.</p> <p>This was objected to by Mr. Bradfield.</p> <p>If the rights of creditors were prejudiced by this claim it must, be rejected. But there are no creditors. And as the only parties interested are the widow and the accountant, the latter is not injured by her delay in presenting her claim; and as she claims cash no appraisement is necessary. But the safest practice always is to file a petition to be allowed the exemption, even though in cash, as there might be creditors, and have the same passed upon before the settlement of the estate; Kirkpatrick’s Estate, 5th Phila., B.,98 ; Farrell’s Estate, 4 W. Notes, 383 ; Seller’s Estate, 1 Norris, 153.</p> <p>This adjudication was confirmed by the Court, and Nathan B. Potts appealed, complaining of the disallowance of his commission, and allowing the widow $300 exemption.</p>

<p>Whether to allow the deposition of a witness to be contradicted, by evidence of contradictory statements made by him, without calling his attention thereto is within the discretion of the trial Court, and not reviewable.</p>

Eri’or to the Common Pleas of Lancaster County. This was a case stated for the opinion of the Court as follows : John Waldhoeffer, of the City of Lancaster, died on the ninth day of December, A. D. 1878, without issue or known l’elatives, after having made his last will and testament, bearing date the ninth day of Apiúl, A. D. 1878, duly prover, and remaining of record'in the Register’s office at Lancaster in Will Book D, Vol. 1, p 82, wherein and whereby he devised and…

<p>Error to the Common Pleas of Delaware County.</p> <p>In 1871 the Philadelphia, Wilmington and Baltimore Railroad Company changed a part of their route between Philadelphia and Chester. They located their road in such a manner as to pass through the farm of Abraham T. Patterson. Viewers were appointed to assess damages, but awarded none to Patterson, who then appealed. Upon a trial in the Common Pleas a verdict,was rendered against the Railroad Company for $1,200. During the trial the defendant made the following offers of evidence. ■</p> <p>“Defendant offers petition of citizens of Philadelphia and Delaware County, asking for this road. Plaintiff objects, and objection sustained.” (First error.)</p> <p>“Also to show that other land owners, a majority of them along the line, released. Plaintiff objects, and objection sustained.” (Second error.)</p> <p>“Also to show that the land along the line has greatly enhanced in value since the making of the road, and that most of it had been sold at greatly enhanced prices since that time. To which offer the plaintiff objected. The Court overruled the objection and admitted the offer so far as relates to all such land in the plaintiff’s neighborhood, naming a distance of about two miles, in either direction, so limiting it on the ground that in the near vicinity of Philadelphia, Darby Borough and Chester City, and at other points away from this neighborhood, other influences might and were likely to operate.” To which limitation the defendant excepted and this forms the subject of the third error.</p>

4, of Philadelphia County. The allegation in the history of the case was that when the case was called for trial on Monday, February 2d, 1880, the counsel for defendant asked a postponement until the middle of the week, which was agreed to. On February 3d, 1880, the case was called by the attorney for the plaintiff and a verdict taken in the absence of the defendant and his counsel.

The facts of the case appear in the opinion of the Court, below, which was as follows, per Boyer P, J.: The proceeding for the .assessment of damages caused by the grading of Stanbridge street, in the Borough of Norris-town, was instituted under the Act of 24th of May, 1878, P„ Laws, 129. The petition of Sylvester Slough for the appointment of viewers to assess damages was presented to the Court of Common Pleas on the 12th of September, 1882.

<p>Error to the Common Pleas of Berks County.</p> <p>This was an action of assumpsit brought by Thomas L. Vickers against George P. Ganster. The affidavit of defence was as follows: The defendant, being duly sworn according to law, doth depose and say that he has a just and legal defence to the whole of the plaintiff’s demand in the above suit, the nature and character of which is, that the notes upon which the suit is brought were given in pursuance of the following agreement, to wit: The plaintiff undertook and agreed with the defendant at Reading, on or about the 8th day of July, 1879, to assume the payment of all the defendant’s lien indebtedness, or take an assignment -thereof from his lien creditors so as to prevent the sale of the defendant’s real estate by the Sheriff, and further to give him, the defendant, such pecuniary aid as was necessary to complete and perfect a certain valuable patent for raising and lowering gas. In consideration whereof the defendant gave the plaintiff an agreement in writing, in which he obligates himself to transfer to the plaintiff shares of stock in said patent, as soon as the same were issued, to the amount of $50,000. That before said patent was perfected, and the shares as aforesaid were issued, the defendant violated his agreement by not only refusing to assume the payment of, all the liens, and thus prevent a sale of the defendant’s real' estate by the Sheriff’, but he, the plaintiff, foreclosed the mortgage that’he had already assumed to pay, and was about to sell the defendant’s real estate, so that he, the defendant, was compelled to raise money elsewhere at a great sacrifice. That the plaintiff' came to the defendant at a time when he was sorely pressed by his creditors, and knowing the extent of his indebtedness, and the great value of the patent, (in which the plaintiff’ sought an interest, and on account of which all this lieu debt was created by the defendant) and urged it upon this defendant to enter into the said agreement. ■ That to save his property from the hands of the Sheriff', and complete the patent to which he had devoted ten years of his life, he agreed (and gave a paper to that effect) to transfer shares of stock in said patent for $50,000 as aforesaid. That by the breach of this, agreement the defendant was injured and now claims damages. That upon the surrender of the agreement held by the plaintiff for the shares of stock, and a proper allowance for damages to be set off against the plaiutiff’s claim, the defendant is willing and ready to pay. The plaintiff further suggests that the statement of claim and items of mon'éy loaned and advanced is not supported by an affidavit, as is required by the Act of Assembly in such casemadeand provided;all of which he will be able to show in the trial of the case. A supplementary affidavit was filed by the defendant to the effect that the agree- ■ ment set forth in the former affidavit was made on the 5th April, 1879, and that the note of April 28, 1878, for $1,000’ one of the several notes upon wffiich this suit is brought, was not given in pursuance of said agreement, but that he, the ,said Thomas L. Vickers, agreed to hold the same, under said agreement or arrangement, to prevent the sale of his property by the Sheriff, a copy of so much of the agreement as was in writing, is hereto annexed. The oral agreement and arrangement made at the time betweén us, deponent and said plaintiff, . to prevent the Sheriff’s sale is substantially set forth in the affidavit filed.</p> <p>That by the breach of this contract the defendant was injured to the amount of $10,000. The agreement was as follows : Heading, Penna., April 5, 1879. I, George Ganster, hereby agree and guarantee to sell to Thomas L. Vickers 500 shares of the stock of the Ganster Automatic Lighting and Extinguishing Co., of Hartford, Conn., and all right, title and interest, in improved foreign patents, already issued and applied for, for the sum of $1.00, provided said Thomas L. Vickers shall make such arrangements as will prevent the sale of my property on Sheriff’s sale as advertised.</p> <p>Georoe P. Ganster.</p> <p>Witness present, J. G. Kalbacii.</p> <p>A rule for judgment for want of sufficient affidavit of defence was taken and made absolute on Aug. 12,1882 in the following opinion, per</p> <p>Sassaman, J.:</p> <p>The affidavit of defence fails to set out matter that would make a good and valid defence to the plaintiff’s claim which' is nowhere denied. When a plaintiff’s claim is stated,seriatim by copy, and no part of it is denied, and the defendant relies on matter of defalcation, which he claims to set oft', it should be so presented that if the same were presented to a jury for -examination they coulcb comprehend it and lay hold of it tangibly, so as to balance the amount with the other, and upon the merits decide the relative indebtedness between the parties. The affidavit now before us is so vague and indefinite that Ave ¿ire unable to determine whether it is sufficient or not upon ¿my merit of its own. When this is a case taking the affidavit for verity as iar as it goes, Ave must declare it insufficient. There is not even the allegation of an offer of performance of the uncertain alleged contract out of Avhieh we are asked to infer a set off. This rule is made absolute.</p> <p>Ganster then took a Avrit of error, complaining of the action of the Court in granting judgment for want of a sufficient .affidavit of defence.</p> <p>argued the facts set forth as constituting the defence need only be averred with reasonable precision and distinctness; Moeck vs. Littell, 82 Penna., 356; Bronson vs. Silverman, 77 Penna., 94; Twitchell vs. McMurtrie, 77 Penna., 383; Selden vs. Neemes, 43 Penna., 421; Blessing vs. Miller, 102 Pa., 45. There is only animplied promise to pay from the plaintiff’s statement, and hence no affidavit of defence is required; Hossler vs. Hartman, 82 Penna. 54; Dewart vs. Masser, 40 Penna., 302; Woodwell vs. The Bluff Mining Co., 25 Penna., 365; Barr vs. Duncan, 76 Henna., 395.</p> <p>The notes were ordinary promissory notes, a copy of Avhieh is as follows:</p> <p>-81,000. Beading, Penna., April 23,1878.</p> <p>One year after date I promise to pay to the order of Christopher Ganster at the First National Bank of Beading $1,000 without defalcation, for value received, with lawful interest.</p> <p>George P. Ganster.</p> <p>Credit the drawer, Endorsed,</p> <p>Christopher Ganster. Christopher Ganster.</p> <p>Ganster has never transferred or offered to- transfer any of the interests stipulated for in the agreement of April 5, '1879. The supplementary affidavit of defence does not agree with ¿he original, and should be closely scrutinized ; Callan vs. Lukens, 89 Penna., 134. Por the alleged parol contract there was no consideration; Miller vs. Henderson, 10 S. & R., 290; Boyd vs. Breece, 3 Phila., 206. The damages arising from levying on Ganster’s property are not subject of defalcation; Gogel vs. Jacoby, 5 S.. & R., 118. Nor would anticipated profits from his patents be subject of damage; Sitgreaves vs. Griffith, 2 W. N C., 705; Rogers vs. Bemus, 69 Penna., 432.</p>

<p>Appeal from Common Pleas of Northampton County.</p> <p>.Catharine E. Gauff presented her original petition on September 29th, 1879.</p> <p>It represented that on the 6th day of December, A. D.1875, the auditor’s report on the first account of Paul Kleppinger, assignee of James "W. Kemmerer for benefit of creditors was filed, in which report the sum of $730.12 was distributed to the petitioner as her pro raía share of the balance in the hands-of said assignee. That the said report was afterwards, to wit,, on the 31st day of December, A. D. 1875, confirmed. That said Paul Kleppinger afterwards paid to the petitioner the-sum of $165.12 and no more, leaving a balance of $565 still due and unpaid. The petitioner prayed the Court to grant her a writ of execution in the nature of a writ of fieri facias; against the said Paul Kleppinger and his effects to enforce tlia payment to the petitioner of the said balance of $565, with interest from the first day of January, A. D. 1876.</p> <p>The Court on December 4, 1879, dismissed her petition in the following opinion per</p> <p>Meyers, P. J.:</p> <p>The distributive share of Catharine E. Gauff is $780.12. On the 4th of January,. 1876, she gave a receipt to Paul Kleppinger, assignee of Kemmerer, on a schedule of distribution, which was headed with a receipt, viz:</p> <p>“Received of Paul Kleppinger, assignee of James W. KemT merer and wife, the amount opposite our respective names, being in full of the several sums distributed to us of the estate of James W. Kemmerer, as per report of William Beidleman,, auditor upon the account of said Kemmerer’s assignee.”</p> <p>At the date of signing the receipt, the assignee held a note for $500 given by Catharine E. Gauff to James W. Kemmerer,. who is her brother. Kemmerer was surety for her husband on a note of like amount held by Jeremiah Roth, and the above note was given by Mrs. Gauff to Kemmerer as • collateral security. At the time when Mrs. Gauff gave the receipt to. Kleppinger he paid her $165.12, and the balance of her distributive share, viz ; $565, was applied toward the payment of the note. On the same day, according to the receipt of Jeremiah Roth on the schedule of distribution, $490.30 was paid by Kleppinger to Roth on whose claim Kemmerer was surety as already stated. Mrs. Gauff herself testifies to the same, effect. Mrs. Gauff being a married^ woman at the time she. gave the note to Kemmerer, was not legally liable to pay the same. But she was not bound to plead her coverture. The uncontradicted evidence is that at the time she gave her receipt for her distributive share, Kemmerer was present that the note in question was produced, that he explained to her how much; the note and interest amounted to, which was paid to her by Kleppinger. He also testifies that he believes the note was delivered up to her. To the same effect is the testimony of Mr. Kleppinger, though he does not recollect whether the note was delivered up or not. Mrs. Gauff. was not bound to receive the $165.12 in cash and give a receipt in full for her distributive share. The retention, therefore, of the amount of this note by Kleppinger out of the distributive share of Mrs. GaufF was by her express agreement and assent. The receipt of $165.12 in cash and executing a receipt for the full amount of said share was in fact and in'law a payment of said note to Kleppinger, who, as assignee of Kemmerer, was entitled to receive it.</p> <p>Afterward, Mr. Kleppinger filed a second account as assignee of Kemmerer, in'which he1 charged himsel f inter alia with the amount of this note and interest, and the money was subsequently distributed and paid by him to Kemmerer’s creditors. After the expiration of nearly four years, Mrs. GaufF Comes in the Common Pleas and prays the Court to award her a process against Kleppinger to enforce payment of her distributive share, less the amount paid to her in cash. We think she is too late. The Court having found as a fact that she paid the note in question by applying a portion of her distributive share, she cannot now be permitted to plead coverture. It is possible that she was ignorant of her rights at the time she paid the note in the manner hereinbefore indicated. But mere ignorance of the law will not excuse her in the absence of fraud, imposition or undue influence on the part of Kleppinger. Neither is the arrangement which she made in respect to said note at the time when she gave the receipt, void by reason of her coverture. This arrangement was enacted and completed as effectually as if she had paid off the note in money ; and it would scarcely be pretended that she could be relieved against such payment by reason of her coverture. Moreover, Kleppinger was misled by her acts, in this, that he subsequently charged himself in his second account with the amount of this note, and upon distribution made by the auditor, the same was paid by Kleppinger to Kemmerer’s creditors.</p> <p>We therefore hold that both on the ground of payment and estoppel, Mrs. GaufF has no standing in Court.</p> <p>And now, Dec. 4,1889, petition dismissed at the cost of the petitioner.</p> <p>On February 9th Catharine E. GaúfF’s supplemental petition was presented and filed, representing, after stating the proceedings on.tbe oiiginal petition, that the petitioner was taken by surprise when Mr. Kleppinger produced what purported to be a receipt in full of her distributive share, and ■could not then account for it, as she had not been aware that she had signed such a receipt; that she since made inquiry into the matter and discovered the following facts, to wit: .That James Wf. Kemmerer owed her $839.21 as administrator •of her father’s estate ; that the auditor on Kleppinger’s first account as assignee of Kemmerer, distributed to her the sum ■of $730.12 ; that when Kleppinger came to her house in company with James W„ Kemmerer, who was her brother, to pay her share, Kemmerer, in the presence of Kleppinger, produced her promissory note given to him to indemnify him as security •on her husband’s note to Jeremiah Roth, and told her that she was entitled to receive only $165.12, being the balance of her share after deducting her note ; that she was then ignorant of the true state of her share in said estate and of her liability <m her note, and. that by the uudue influence of her brother .and Mr. Kleppinger, in both of whom she had the utmost- confidence, she was induced to believe that she was bound to pay ■her note and could not recover the balance of her share. The petition further represents that the petitioner when she signed her name to the receipt in question believed that she was signing a receipt only for the amount actually paid her; that the receipt was not read nor explained to her before signing it; that she never, either individually or in conjunction with hef husband, who was sick during all this time, voluntarily relinquished the balance of her share to anyone, but was restrained •from demanding it from the said assignee by the influence of her brother and the assignee, who induced her to believe that .she could not by law recover it.</p> <p>The petition further represents that the assignee paid on note of the husband of the petitioner on which her brother was security only $490.30, and she claims that this sum, even if she had been liable on her note, should have been deducted from the whole amount which Kemmerer was indebted to her, to wit: $839.21, and the balance of $348.91 instead of $165.13 should have been paid to her, at least, and that she was thus imposed upon and made to pay $183.79 more than was due on her note.</p> <p>The petitioner prayed for a rehearing and that the decree dismissing her original petition be reversed and set aside, and that a decree be made as prayed for in her original petition, &e.</p> <p>On November 1st, 1880, the Court dismissed the supplemental petition in the following opinion per</p> <p>Meyers, P. J.:</p> <p>At the time of the assignment by Kemmerer, he as admin istrator of the estate of James W. Kemmerer,' deceased, was indebted to Catharine E. Gauff her distributive share in said estate amounting to $839.21. The auditor on the first account of Kleppinger as assignee, distributed to Mrs. Gauff $730.12. When the application was first heard, we found substantially the following facts and conclusions of law, viz: that Kleppinger as assignee paid Mrs. Gauff in cash $165.12, and by her express agreement and assent Kleppinger retained and applied $565, the balance of the share distributed to her, to the payment of the promissory note for $500 and interest, held by Kemmerer against her; that she executed and delivered to Kleppinger a receipt in full for said share, and that such receipt was in fact and in law a payment of the note to Kleppinger.</p> <p>On the application for a rehearing it is contended that Mrs. Gauff is not bound by the receipt, because her husband did not join in it. The law undoubtedly is that a married woman cannot, except when she is allowed by statute, assign or transfer her choses in action, &c., without the consent of .her husband. Is she legally competent to give a receipt upon the payment to her of money to which she is entitled as her separate property ? It is contended that she is not under the Act of 11th April, 1848, P. L. 536, and that her power to do so respecting legacies and distributive shares in estates of decedent's was given by the 4th Section of the Act of 11th April, 1856, P. L. 315,1 doubt veiy much whether the latter act was. intended to meet the case of a mere receipt or release by a married woman to an executor or administrator for a legacy or distributive share paid to her.</p> <p>The purpose of this Act is to enable a married woman to give a refunding bond “and also to execute all such other instruments, and to perform all such other acts, as may by law be necessary to be done, or may be lawfully required by the executor or administrator upon the payment to her of the moneys to be distributed as aforesaid, with the same affect, for the intent and purpose of binding her separate estate, as if she were sole and unmarried.”</p> <p>It is evident that, the instrument in writing to be executed and the acts to be performed by a married woman, contemplated by the statute, are such which in their intent and purpose are to bind her separate estate. The instruments and acts must necessarily embrace matters of contract or covenant against which she could not plead her coverture. How can it be said that a mere receipt given by a married woman to an executor or administrator for her legacy, &c., is to have the effect of binding- her separate estate. The case of Pettit vs. Fretz’s Executor, 9 C., 118, is not that of a simple release by a married woman to an administrator upon the receipt of her share, but of an agreement between her and another person, in which the administrator is directed to pay a portion of her share to that person coupled with a promise to indemnify the administrator against any loss for doing so. The agreement was not signed by the husband, and the Supreme Court held that it was not binding, on the ground that a married woman is not empowered by the Act of 1848 to dispose of or charge her separate estate by an instrument under seal to which her husband is not a party.</p> <p>If Mrs. Gauff was not legally competent by the Act of 1848 to execute and deliver the receipt in question without her husband joining in it, and that she was only enabled to do so by the Act of 1856, then it is contended that the latter act is not applicable to this transaction for the reason that her distributive share was not paid in full to her in money as provided by the act. "We are, however, of the opinion that by the -Act of 1848, Mrs. Gauff was legally competent to execute and deliver the receipt, and that she is bound by it, unless she can show fraud or want of consideration. The arrangement which she made with Kleppinger at the time the receipt was given that Kleppinger should retain so much of her share and apply it to-the payment of her note, the delivery of the note to her and the payment of the balance in money, constituted the consideration of the receipt and was as effectual as if the money had been actually paid to her. Mrs. Gauff, being a married woman, was not bound to pay the note. It is now too late to interpose the plea of coverture, and assert that she did not-know at the time that she was not legally liable. The reason for this salutary rule is well expressed by Sergeant J., in Ege vs. Koontz, 8 Barr, 113. “The general principle that a person who voluntarily pays money to another claiming is as a debt, may recover it back again when it turns out to have been paid by mistake, is recognized by our law, as the decided cases fully establish, only when the mistake is owing to misconception, or ignorance of fact. Where the party alleges a mistake of the law, the maxim applies, ignorantia juris neminen exeusat. One person is not allowed gratuitously to alter the position of another and affect his right and liabilities, by voluntarily assuming to understand his own legal duty, and paying a claim on the footing of such assumption and then drawing it into question upon the allegation of a mistake of his duty. It would not only encourage negligence and rashness but might in many instances have an injurious operation on the rights of others, if permitted.”</p> <p>In this ease Kleppinger, as assignee, would be greatly injured. He retained this money .on the faith of Mrs. GaufFs assent and agreement to apply it to the payment of her note, charged himself with it in a subsequent account, and by the order and decree of this Court, paid it to the creditors of Kemmerer. It is, however, contended that the doctrine of estoppel is not applicable to the contracts or invalid acts of married women.</p> <p>In this case the doctrine is not invoked against either h er contract or invalid acts. Mrs. Gauff was legally competent to give a receipt for her share and-pay-Her note in the manner she did. She is presumed to have known the law that she •was not legally liable on her note, but having paid it, Kleppinger as assignee was required to - account for the proceeds to the creditors of Kemmerer. Having done what the law required and paid the money to Kemmerer’s creditors by the order of the Court, it would be gross injustice to compel him to pay it back to Mrs. Gauff. But it is further contended that Kemmerer w'as but a surety for Mrs. GaufFs husband on his note to Both, and as Kemmerer’s estate only paid $490.30 to Roth, Kleppinger had no right to demand from Mrs. Gauff on her note more than that amount. That is undoubtedly true. But the depositions fail to show that Kleppinger knew what the consideration of the note of Mrs. Gauff' to Kemmerer was. Even if he did know that circumstance would be immaterial. He held the note of Kemmerer against her, the validity of which she did not dispute. As he was entitled in good conscience to receive the entire principal and interest of the note, Mrs. Gauff can not recover back the excess over $490.30 either by an action at law or in this form of proceeding.</p> <p>And now, November 1st, 1880, supplemental petition dismissed, the costs to be paid by the petitioner.</p> <p>Catharine E. Gauff then appealed, complaining of the action of the Court in dismissing her petitions.</p>

Appeals from the Common Pleas of Delaware County. In Equity. The facts of the ease appear in the opinion of the Court helow which was delivered on Sept. 20, 1882, per Futiiey, P. J.: The plaintiff became a member of the defendant Lodge of Odd Fellows in 1865; 'he had been a member of the Order' for some years previously. On June I7th, 1876, he was placed on the sick list, and as the Master finds, he has, ever since, been sick and incapacitated for work of any kind.

<p>All the costs in the Bill in Equity, including the master’s fee, are collectible in a suit on an injunction bond.</p>

<p>Appeal from the Common Pleas No. 3, of Philadelphia County. In Equity.</p> <p>This was a bill in equity, for an injunction, brought by Paul Betz and others against Charles Herrman, Sr., and "William J. McLaughlin.</p> <p>The bill set forth:</p> <p>That Louisa Emert, widow of Henry Emerfc, deceased, was the owner in fee of the premises situate at the northeast corner -of-Ontario and Cooper streets, in the City of Philadelphia.</p> <p>■ That on November 2, 1856, she intermarried with Charles' Herrman, Sr., one of the defendants in the Court below.</p> <p>That on May 81,1859, the said Louisa, described as Louisa Frederieka,' widow, executed a mortgage of the said premises to-the said Charles Herrman, Sr., to secure the payment of the sum of $1,500 with interest, and that at the time of executing the said mortgage, the said Louisa was the lawful wife of Charles Herrman, Sr.</p> <p>That the said Charles Herrman, Sr., prior to September 1, 1867, made a gift of the said mortgage and the principal sum thereby intended to be secured unto the said Louisa, his wife, and the same was destroyed.</p> <p>That the said Louisa Herrman died on April 9,1868, seized of the said premises, and by her will she devised the said premises unto her husband, the said Charles Herrmann, Sr., for life, and then unto her stepson, Charles Herrmann, Jr., and in case of his death, unto his offspring or children, and the offspring and children of the daughter of the said Charles Herrmann, Sr., and besides, the said testatrix gave unto the said Paul Betz, one of the plaintiffs above named, a life-long maintenance, consisting of board, washing and lodging, which should be a lien on the said premises.</p> <p>That letters of administration upon the estate of Louisa Herrmann were on May 6,1872, granted unto the said Charles Herrmann, Sr.</p> <p>That the codicil to the will was probated March 24,1881.</p> <p>That the said Charles Herrman, Sr., on April 16, 1872, assigned the bond and mortgage of the said Louisa Frederieka to William Lorenz without consideration, and that the said William Lorenz instituted proceedings upon the said mortgage against the said Charles Herrman, as administrator of the estate of Louisa Herrmann, and judgment being obtained thereon, execution ivas issued, and the premises sold by the Sheriff', to the said Charles Herrmann, Sr., for $200.</p> <p>' That Charles Herrmann, one of the plaintiffs, is the minor son of Charles Herrmann, Jr., who is deceased, and was the son of Charles Herrmann, Sr.j husband of Louisa Herrmann.</p> <p>.. That Amelia and Ida Ruthard, twp-other plaintiffs, are minors, and are the children of the daughter of Charles Herr-, mann, Sr.</p> <p>' That the premises hereinbefore referred to were taken in execution as the property of the said Charles Herrmann, Sr.,* at the suit of William J. Thompson et al., and were sold by' the Sheriff to William J. McLaughlin for $500. . ' •</p> <p>That the said William J. McLaughlin made a lease of the: said premises to the said Charles Herrmann, Sr., on January 10, ■ 1881, for the term of one year, at the annual rent of $200.</p> <p>That on January 15,1883, proceedings to recover possession 1 of the said premises at the expiration of the term, were instituted before William II. List, Magistrate of Court No. 5, for the city of Philadelphia, upon the complaint of the said"' William J. McLaughlin as landlord, against the said Charles • Herrman, Sr., as tenant, and judgment was entered in favor of’ the said William J. McLaughlin. An appeal thereon was taken by the said Charles Herrmann, Sr., to the Court of Com- • mon Pleas, No. 3.</p> <p>The bill prayed :</p> <p>That the said William J. McLaughlin, his agents, attorneys and servants may be restrained and enjoined from proceeding under any judgments they may have recovered, or shall hereafter recover, against the said Charles Herrman, Sr., to collect or receive the rents of the said premises or to obtain possession thereof, and that the same may be transferred to the receiver.</p> <p>The Court awarded an injunction, as prayed for. McLaughlin then appealed, complaining of the action of the Court below.</p>

<p>Error to Common Pleas of Warren County.</p> <p>In June, 1875, one Jacob Sweeting leased his farm of forty acres for oil purposes to the defendant, C. W. H. Verbach for the’term of twenty years, reserving one-tenth of the oil as royalty. In December, 1877, the Sweeting farm was sold to S. V. and S. H. Davis, subject to the oil lease to Verbach. About July 1st, 1877, Verbach had sunk a well 818 feet and obtained a slight flow of oil. Upon the trial the evidence showed that on July 7, 1877, a torpedo containing eight pounds of nitro-glycerine was exploded in the well.. On March 28,1881, S. V. and S. II. Davis purchased from Verbach all his right, title and interest and claim whatsoever in and to a certain leasehold of the said Sweeting farm for $700. They afterwards brought an action of trespass on the case against Yerbach and recovered a verdict of $412, on the ground that Yerbach had told them at the time they bought the oil lease from him that the well had never been torpedoed; that in so doing he had deceived them, and had fraudulently induced them to purchase the leasehold. During the trial Yerbach made various offers to prove that a torpedo containing three quarts or eight pounds of nitro-glycerine. would not affect the oil-producing rock of that district. That such torpedoes were not * msidered of value by operators; that torpedoes containing from twenty to fifty quarts of nitro-glycerine were the ones in general use, and the only ones that affected the rock in this district. These offers were rejected and form the subjects of various errors. The answer to defendant’s fourth point was also assigned for error ; which point and the answer thereto were as follows: “If the jury believe from the evidence in the cause that the oil-bearing rock in the lease in controversy was a hard rock, and that the three-quart torpedo which defendant had exploded was not sufficient to materially affect the oil-bearing rock in said well, then the statement of defendant that no torpedo had been put in the well would not be such a fraud as to entitle the plaintiffs to recover.” Answer. The defendant’s fourth point is answered in the negative. We think the character of the rock has nothing to do with the question.</p>

The facts in this case appear from the report of the auditor appointed to distribute $970.77, being the net proceeds of the sale of the real… Held: that th e interest of the widow was an estate in the land, and not a mere charge upon it. “If she took her statutory allowance as widow, her interest is the same before partition, and not an annual charge until partition. “If she permitted her son to take her share of the rents, issues and profits, she had a mere personal claim…

4., of Philadelphia County. The Fidelity Co., as guardians of Margaretta P. Norris, filed a bill in equity against John H. Gould, and others, for partition. A decree was entered in this ease, on March 14th, 1882. A new .bill, to set aside this decree, was filed, aginst all these defendants, on June 22nd, 1882, which bill was, on motion of defendants, stricken from the files, on July 15th, 1882.

<p>Error to the Common Pleas No. 1 of Philadelphia County.</p> <p>The action below to which this writ was taken was brought upon a recognizance, for bail in error. The original suit, being upon a mortgage, given by Banzhof to Bradfield, upon which a verdict was on for $1,265.23, and the case removed to the Supreme Court, No. 359 January Term, 1880. Leopold Nagle, plaintiff in error, and others gave the recognizance, the affidavit of defense, set forth inter alia ; Plaintiff seeks to recover a supposed balance, which he avers became due him, under certain writ of error taken in Common Pleas No. 1, September Term, 1876, No. 523. At the time of the taking of said writ of error, the plaintiff was awarded $1,265.24. The property of defendant was sold under plaintiff’s writ and brought $1,400, more than sufficient to pay the whole of plaintiff’s claim. Had it not been that the plaintiff had illegally issued certain writs of sci. fa., which were set aside by this Court, and delayed the hearing of the ease in the Supreme Court, by his neglect in not being ready when the ease was called for argument, although defendants were ready.' Defendants] are not indebted to the plaintiffs in any sum whatever. The rule for judgment for want of a sufficient affidavit of defence was made absolute on March 17, 1883, and damages assessed of $215.54. Nagle then took a writ of error, complaining of the entry of the judgment.</p> <p>argued that the affidavit of defence clearly avers payment and satisfaction. It is sufficient that an affidavit set forth a prima fade defense; Heaton vs. Horner, 35 Leg. Int., 146; Bank vs. Harkness, 6 W. N. C., 108; Bloomingdale vs. Ins. Co., 27 P. L. J., 33; Witaker vs. Read, 9 W. N. C., 144; Janeway vs. Moss, 10 W. N. C., 337; Selden vs. Neemes, 43 Penna., 421; Twitchell vs. McMurtrie, 77 Penna., 383; Christy vs. Bohlen, 5 Penna., 38; Clayton vs. Neff, 1 W. N. C., 247; Milliken vs. Brown, 10 S. & R., 188; Gettysburg Bank vs. Thompson, 3 Gr., 119.</p> <p>The amount of the verdict with interest to March 6, 1882, was $1,426.98. The amount received from the Sheriff was $1,201.24, leaving a balance due of $225.74. A recognizance of bail in error requires an affidavit of defence; Keyser vs. Dialogue, 4 W. N. C., 11; Bank vs. Thayer, 2 W. & S. 447. The defendant is bound to answer an averment, that the principal of a mortgage has become due by non-payment of interest; George vs. Building Association, 1 Walker, 533; see also Imhoff vs. Brown, 30 Penna., 506; and Clayton vs. Neff, 1 W. N. C., 430.</p>

<p>An agreement between two execution creditors and the defendant, that the execution creditors shall buy in all the personal property whioh does not bring a full price at the Sheriff’s sale, and resell it for the benefit of ihem.selves and the defendant, is not fraudulent in law.</p>

<p>A receiver, who has managed the partnership property carelessly and negligently, will not be allowed commissions or credit for counsel fees, and the costs of audit will be imposed on him.</p>

This was an action of assumpsit brought by H. A. E. Kohler against Edward Hottenstein. The declaration was in the common counts. The plaintiff filed an affidavit of claim, copy of pass book or bank book of himself with defendant, and copy of promissory note given as ■collateral seturity.

2 of Philadelphia County. In Equity. ' Logan and Preston sold a quantity of corn to Smith, Howell & Co, for $24,000. At one o’clock, Sept. 22nd, 1879, the clerk of Logan & Preston delivered the shipping receipts to Smith, Ilowell & Co., and received their check for §20,571.43 on the Commercial Bank and immediately deposited it for collection.

This was an action for recovery of damages for breaking the arm of defendant in error.

This was a citation in the Orphans’ Court against an administrator to compel payment of an attorney’s, claim for services. The allegations in the petition were as follows : That A. Porter Wilson is the administrator of the estate of Gen. A. P. Wilson, deceased, and that more than one year has elapsed since he has filed an account of his administration.

In Equity. Eleazer Pomeroy filed a bill in equity against R. M. and D. R. Manly, setting forth: That said Manlys had judgments against Charles Stockwell, who was R. M. Manly’s father-in-law ; that Manlys wished Stockwell’s property sold out by the Sheriff, without it being known that they did it, and made an arrangement by which D. R. Manly’s judgment was to be transferred to Pomeroy, and execution should be thereupon issued and the property sold, and bought in for Manlys,…

The Lehigh Valley Eailroad Company leased the Morris Canal, which extends from the Delaware at Easton to the Hudson at Jersey City. The agent of the company hired J. W. Gray, H. M. Gray and H. C. Snyder, and agreed to pay the rates paid by the company during the season. The company had regulations as follows: “All boats must be taken by the season, unless by written permission from Jersey City office.

<p>Appeal from the decree of the Orphans’ Court of Philadelphia.</p> <p>This is an appeal by Mary and Caroline Little from a decree of the Orphans’ Court of Philadelphia, in the estate of Wm. C. Little, deceased.</p> <p>The facts of the case as found in the adjudication of th© Court below, were as follows: William C. Little died December 4th, 1875, having first made and published his last will and testament, bearing date November 8th, 1875, by which he devised and bequeathed inter alia, as follows:</p> <p>.“I give, devise and bequeath unto my children, Ferdinand S. Little, Caroline Little, and Mary Little, my store property and lot of ground on the west side of Sixth street (No. 154), below Race street, in the said city; also, the business conducted therein, the tools and personal property connected therewith, and all debts due or owing me from or by said business, and also any and all moneys deposited in bank, to hold to them?their heirs, executors, administrators and assigns, as tenants in common, so that the said Ferdinand S. Little may have and hold one-half part of the said store property and lot of ground, business, tools, personal property and bank deposit, and th© said Caroline and Mary Little may have and hold the other half part (each, one-fourth part) of the same in fee, with power to sell and convey in fee simple, or mortgage the said real estate, and to sell the said business, or both, or either. If they all so desire, and to sign, seal, execute and deliver to the proper person or persons a good and sufficient deed or deeds or mortgage in law for the same.” * * * * * “And I declare my intention to be that the advances I have mad© during my lifetime, with the bequests and gifts herein made, shall be an equivalent for any seeming inequality of the deposition of my property by this my last will and testament.”</p> <p>His son, Ferdinand S. Little, and Harman Osier, Jr., were named executors.</p> <p>William C. Little, who was a manufacturer of undertakers* hardware, in the fall of 1873 bought his former partner’s interest, a Mr. Weekerly, and conducted the business alone for th© remainder of the year. Being then seventy-six years old and feeling the infirmities of age upon him, he could not give the needed attention to the concern. He called upon his son Ferdinand, the accountant, who was then and had been for nine years previous in the business of manufacturing harness hardware ornaments, and repeatedly urged him to give up his business, bring his stock and tools to his, the father’s place, 154 North Sixth street, and become his partner there. The father said to his son and others that his business was falling off by reason of his inability to give it his personal attention, and that, therefore, he had taken in Ferdinand as his partner ;that the two could be conducted together with profit. He further expressed a desire that the name of “William C. Little & Company” should live after his death. At the urgent request of the father, Ferdinand left his former shop in Hudson Place, brought his stock, tools, etc., to No. 154 North Sixth street, where, from January 1st, 1874, down to the death of the testator, December 4th, 1875, he had sole charge of the entire business. Ferdinand turned into the new firm all his tools, stock and cash, and without any written articles the business was conducted under the firm name of William C. Little &, Company, with the old books and the cash received and paid out for the partnership of the father and son.</p> <p>Upon the decease of the father letters testamentary were granted to the son alone. The value of the stock, tools, books, debts and merchandise belonging to, and constituting the business which had been theretofore conducted in said store, was appraised at $4,636.92. The executor charged himself, in his inventory and account filed, with but a moiety thereof.</p> <p>Having found these facts, the Court below decreed “that Ferdinand S. Little was a full partner of decedent, and that in making up his account he properly charged himself with but one-half of the stock, tools and business at No. 154 N. Sixth street,” and that “there being no estate not specifically bequeathed with which to pay the debts of the decedent, all the legacies of personal property must abate pro rata.</p> <p>Exceptions were filed on behalf of Mary and Caroline, which were overruled and the adjudication confirmed, whereupon they took this appeal and filed the following assignments of error:</p> <p>1. The Court erred in not deciding that Ferdinand S. Little was obliged to elect, whether he would take his own property or the devises and bequests in his favor by the will of testator, and that if he elected to take the latter, he was not entitled to claim his interest in the tools and business, so used in and carried on at No. 154 North Sixth street.</p> <p>2. The Court erred in not deciding, as Ferdinand S. Little retained for his own use a moiety of the tools and business so used in and carried on at said store, that he was obliged, out of the bequests to him, to compensate the legatees, who were disappointed in receiving the benefits they would otherwise have received under the will.</p> <p>8. The Court erred in awarding to Ferdinand S. Little, who retained for his own use the moiety of said tools and business, a moiety of the other moiety of the valuation thereof, with which he charged himself.</p> <p>4. The Court erred in awarding to Ferdinand S. Little any portion of the moiety of said tools and business, with which he charged himself.</p>

1, of Philadelphia County. In Equity. T. M. Rettew bought 500 shares of the preferred stock of the Union Canal Company under an agreement, as Rettew alleges, with William K. Barclay that said stock should be held in the name of Rettew until Barclay should pay half of the cost with interest, and that in that way they should share the gains and losses. Barclay alleges that he was to have one-half of the gain, but was to be protected from loss.

1, of Philadelphia County. The charge of the Court contains the facts in the cáse and was as follows :■ This suit, as you have heard, is brought upon a policy of insurance to recover for a total loss of the building insured. There is no denial at all that this policy was duly and properly executed by the company on the fourteenth day of August, 1865.

<p>Appeal from Common Pleas No. 4 of Philadelphia County.</p> <p>John B. Welscher executed a deed of his estate to Joseph II. Gasslein and Theodore H. Lutkenhans, in trust for his daughter, Caroline Welscher. The assets consisted of $4,500, United States bonds, $500 in cash, and a note of Lutkenhaus’ for $1,800. Gasslein took possession of all the assets, and subsequently Lutkenhaus filed a petition and caused the assets to be deposited in the Fidelity Trust Company for safe keeping, in the names of the joint trustees. Gasslein then renounced the trust. John B. Welscher died soon after making the trust deed, and Charles Graeff was appointed his administrator. After Gasslein renounced the trust Lutkenhaus was advised! by his counsel to petition the Court to have Graefi appointed as co-trustee. The sureties of Graefi’ afterwards petitioned the Court to discharge him on the ground of insolvency and mismanagement. After a report from a master the Court discharged both Graefi and Lutkenhaus, and ordered them to-file an account; and the Fidelity Trust Co. was appointed trustee in their place. Graefi and Lutkenhaus each filed an account. An auditor was appointed, who made a report. The Court disallowed certain items which were allowed by the-master, and entered a decree. A further statement of the facts will be found in the opinion of the Supreme CourtLutkenhaus then appealed from this decree. The seventh assignment, of error was as to the refusal to allow commissions.</p>

In Equity John R. Saltsman and thirty-seven others filed a bill in equity in the Common Pleas of Erie County, claiming that pursuant to the Act of 25th February, 1870, entitled an Act to extend the boundaries of the City of Erie, there were taken from the Township of Millcreek and annexed to the City of Erie, about 2,500 acres of farming land belonging to the orators, which could not be beneficially used for other than farming purposes.

This was a writ of error complaining of the action of the Court below in directing the acknowledgment of a Sheriff’s deed.

An account of Jacob J. S. Seitzinger, administrator d. b. n. c. t. a. of Jacob W. Seitzinger, deceased, had been filed and referred to an auditor.

This was an action in debt, brought by the Titusville School District, against John S. Tracy, Joseph A. Neill, Simon E Tifft, and Silas Kerr. The case was referred to D. C. McCoy as referee. Under the Act of May 14, 1874, the referee decided in favor of the plaintiff and against defendant, and judgment was entered upon his decision against defendants for $4,941.38.

The essential parts of the will of Abraham Ruth are as follows: Second.

Sci. fa. sur mortgage by Anna M. Powers, assignee of Samuel A. Bridges, against W. P. Snyder.

In Equity. AY. S. Crawford filed a Bill in Equity against the New Castlé and Franklin Railroad Company and Alexander Bradley, trustee, alleging that he was a stockholder in said Railroad Company and that said .Bradley, trustee, under a certain mortgage had taken possession and was about to sell the railroad. He alleged that illegal issues of bonds were made, and that the directors were acting in collusion to have the road sold after having wasted its funds.

<p>A collector of bounty tax under the Act of March 25, 1864, has the same power to collect delinquent taxes by suit as a collector of county taxes.</p> <p>A collector can sue as collector.</p> <p>The right to sue is not barred until six years after the warrant to collect taxes has expired.</p>

The following comprises all, except the formal parts, of Edward 'Sherer’s will.' Item.

The facts of the case appear in the opinion of the Court below, which was delivered by > •' Meyers, P. J.: This is a proceeding under the first section of the Act of April 22, 1856, which provides… Held: referring to Lord Hardwick’s opinion in Stamper vs. Miller, 3 Atk., 212, “That the words shall or may, when applied to private trusts, leave an election to the trustees, which is not the case when the words are used in an Act of Parliament.

The facts of the case appear in the opinion of the Court, sustaining exceptions to the report of an auditor, who was appointed to restate the'account of Andrew Fisher, guardian of Mary E. Ensley, which opinion was as follows, per Eowe, P. J. : Mary Ensley was born in May, 1861. Her father died, a prisoner of war, in 1864, leaving a small tract of land worth $1,000. His widow married again. In 1867 Andrew Fisher was appointed guardian of Mary.

The facts of the case are set forth in the opinion of the Common Pleas entering judgment in favor of the plaintiff on a reserved point, which was delivered December 22, 1882, as follows, per Wilson, P. J.: This is an action brought by John Woodward against Isaac W. Aiasters and Elisha P. Gibbons, executor of the last will and testament of Hannah Masters, deceased. The former not being served, trial was had as to the executor alone.

<p>Error to Common Pleas of McKean County.</p> <p>Tbe facts of the case appear in the opinion of the Supreme ‘Court. ¿</p>

The following is a translation of all except the formal parts of the will of Joshua Schmeyer: 1st. It is my will and I hereby ordain that as soon as possible after my death my just debts and funeral expenses shall be paid, and that my executors shall make and erect after our death beautiful and suitable tombstones for myself and my beloved wife Diana. 2nd.

<p>After road reviewers have made report it is too late to except to the order to View, because by accident the seal of the Court had been omitted from the original order to view.</p>

<p>Where the respondent in divorce accepts a sum of money decreed to her as alimony in a decree for divorce, she is estopped from denying the validity of the decree.</p>

4, of Philadelphia County. In Equity. The facts in the case appear in the master’s report, which Avas as folloAvs : The master finds the following facts: 1.

John Hildebrand and Henry Myers each tookarule to show cause why the proceeds of the sale of the real estate of Abraham Myers should not be paid to them.

The jury rendered the following special verdict. The jury find for the plaintiff, but subject to the opinion of the Court as to the legal construction of the contract between the parties. If the Court should be of opinion that the plaintiff is entitled to recover the sum of $1,000, with its legal interest, at all events, according to the face of the policy, then we find for the plaintiff’ the sum of $1,051.83.

M. S. Thompson obtained a judgment against William Shear, who was a member of the firm of Shear & Jones, who also held a judgment, which was entered of record before Thompson’s judgment. The Court awarded the proceeds of the sale to the partnership judgment in the following opinion, per Williams, P. J.: The fund fi r distribution is raised by the Sheriff’s sale of the real- estate of William Shear. The claimants are lien creditors.

<p>Error to the Court of Common Pleas of Cameron County.</p> <p>This was an action of ejectment to recover possession of seven village lots in the Borough of Emporium. It appears in 1860 E. M. Deerano was owner and in possession of a large amount of land, including the land in controversy, situated ’ in the present limits of Emporium, and on Sept. 6th, 1860, conveyed the same to Jay Cooke, by deed’duly recorded on April 17th, 1864. The Sinnimaboning Land Company was. incorporated, and on April 22, 1864, this name was changed: to the Philadelphia and Erie Land Company. On May 10th, 1864, Jay Cooke conveyed the land aforesaid to the said company. In the fall of 1860 this tract was surveyed into village. lots and streets for the owner. At that time John Earl had: a small lot lying west of this tract, upon which lot he then; lived. When the surveying party came upon this lot Earl i met them and made an arrangement by which he was to allow them to run the street through his lot, and he [was to take other ground in exchange. The surveyors then ran the line of I Eourth street and Woodland avenue through Earl’s land and the land he was to receive in exchange was staked off. The suit was brought for this land so staked off. The charge of the Court is as follows, per</p> <p>Williams, P. J.:</p> <p>Gentlemen of ihe Jury: This action is what is called an action of ejectment, and the purpose of the action is to obtain from the defendant possession of seven village lots in the Borough of Emporium, which it is alleged the defendant is in possession of without any right to remain in possession the question for your determination is whether the defendant has shown any right to remain in.possession of these lots. A very brief statement of his situation will enable you to understand our answer to the points submitted to us by counsel.</p> <p>It is alleged by the plaintiff that these lots were surveyed and laid out in the village of Emporium and were enclosed by Mr. Earl and Mr. "Wagner without any title to them or any right of any description that gives them the right to resist this action. The plaintiff shows title to the land and shows by the testimony of two of the defendants, Earl and Wagner, that whatever right they have to this land they claim under the plaintiff. They allege, however, that they have by an arrangement with the plaintiff the right to it, and they allege that the right arises in this manner. It is alleged that at the time the surveyors were here to locate these streets for the owners of the land, they laid out Fourth street. They came to the lot of John Earl, and that the surveyor, or the person with him, proposed that the street should continue through his land, and that the company should give him other land in exchange. It is alleged that he then said to these gentlemen that he would make such an arrangement and take land adjoining him after the opening of the street. Whether such ■an arrangement was made by the parties alleged to have been connected with the plaintiff, and, if made, whether it has been acted upon by the parties, are questions which have béen called to our attention by written points. We will answer them and then see if there is anything left for the jury in this ease.</p> <p>The plaintiff’s counsel have submitted these points:</p> <p>“1st. That the defendants claim, under the plaintiff or its “grantor, and cannot now dispute the title of the plaintiff or “its grantor thereto, but must show a good and legal title “thereto under them.”</p> <p>We affirm this point with the explanation that the words, “good and legal title,” do not necessarily mean a written title but mean any such right as is good in law to resist the legal title of the plaintiff.</p> <p>“2nd. That the defendants have not shown any authority, “from the plaintiff or the former owner of the lands in dis“pute, to Mr. Phelps, Smith, the alleged surveyor, or to any “other persou to make the arrangement for the exchange of “land as alleged by the defendants, nor for them or any one “to ratify the posséssion and selection of the plaintiff’s lands “taken and made by either of the defendants.”</p> <p>¥e think that point is correct as it stands, and affirm it. We do not think authority has been shown in any person to make such an arrangement as is alleged by the defendant here. It is alleged that facts have been shown from which inferences or conclusions may be drawn by the jury and to these we will call your attention shortly, but upon the proposition submitted in this point we say to the jury that we can recall no evidence showing any person to have authority to make the exchange.</p> <p>“3rd. That under all the evidence in this case the plaintiff “is not estopped from claiming and recovering the land in controversy.”</p> <p>We decline to say that, as a matter of law, but shall refer it as a question of fact to you, with some directions which we feel we ought to give to the jury presently.</p> <p>“4th. That under the evidence in this case the verdict of the “jury must be for the plaintiff.”</p> <p>We do not take this case from the jury and therefore decline to charge as requested in this point.</p> <p>Defendants’ counsel have submitted the following points:</p> <p>“1st. That if they believe the land in dispute was seated “and cultivated, or was a portion of a large lot that was occupied as a farm at the time it was assessed for taxes, for the “collection of which it was sold to Charles Hamilton, -June “8th, 1846, the said sale was void, and the plaintiffs have “shown no title under which they can recover in this case.’.’</p> <p>We decline to charge as requested in this point; it is true that the sale of seated lands as unseated would not pass title, but under the instructions we have given you in answer to the plaintiff’s first point you will see by a scrutiny of the evidence that the defendants’ claim does not reach back of plaintiff’s title but is under it.</p> <p>“2nd. That the plaintiff in this case must recover, if it “recovers at all, upon its own title, and not upon the weakness “of the title of the defendants.”</p> <p>We affirm this point, but we ought to repeat the statement we have just made that in determining the question of title you ought not to go back beyond the period when the defend- • ants’ title was acquired.</p> <p>“That if the jury believe that an arrangement was made “between Earl and the owner of the land iu dispute at the “time or previous to the time when the property of Earl was “taken possession of for streets, that Earl was to have land in “exchange for that taken from him, and that he selected the “land in dispute, with the knowledge and assent of the owners “and their agents, as to his compensation, went into possession “thereof and has remained in possession, cither by himself or “his vendees, up to the bringing of this suit, that the plaintiff “cannot recover it from him in this action.”</p> <p>The fourth point relates to the same question. The fourth point is as follows :</p> <p>“4th. That under all the evidence in this case the plaintiff “cannot recover possession of the property in dispute without “first restoring to Earl or his vendees the possession of the “property taken from him.”</p> <p>These points, together with what we have said in answer to one of the points of the plaintiff, raise what we consider the only question in this case for your determination. When one acquires the title of anjr given thing the circumstances under which it is acquired are always to be looked at, and it may sometimes happen that it is without a conveyance, without .any distinct agreement in writing, without any agreement verbally that can be shown in terms between the parties in interest; it may sometimes happen that rights can he acquired and parties put in such a position as that which is known among lawyers and in Courts as raising an estoppel by circumstances, the question in this case is that of character.</p> <p>Upon the subject raised by these two points we may say to you that these streets to which the witnesses have referred were not laid out by the public. They were being laid out by the owners of the land for the benefit of themselves. You will then look at what transpired at the time the surveyors were here ; you will look at the testimony of Mr. Phelps as to what notice he gave to the then owners of the land, who lived in Philadelphia, as to the arrangement with Earl and their reply as to carrying out that arrangement; you will look at the circumstances that the President of this company was on the-ground the following year and had the opportunity to see what had been appropriated by the company and the land taken in return.</p> <p>The question you have to determine is .whether the company have acquired and still hold this land taken from Mr. Earl by an arrangement such as Mr. Earl testifies to.</p> <p>If the owners of this land had called.on Mr. Earl and said we will give you so much land if you will let us lay out this street, there could be no doubt about the validity of the arrangement.</p> <p>The difficulty is that the parties were not face to face, and that the parties who came there were not known to be authorized by the company to lay out the streets, they simply asserted' that they had the authority.</p> <p>If you believe that Mr. Earl entered into such an arrangement, by .which he agreed to furnish certain land to lay out the street on receipt of other land, and that these parties who-made the arrangement, communicated it to the owners and the owners allowed him to take possession of the land in exchange for what they took from him, they cannot withhold from him what he has so taken. And although there was no survey or actual boundaries fixed at the time for the land that he was take possession of, if the owners had knowlege. of the location and amount of land that he took possession of and had continued to hold and still continues to hold as his, they cannot recover from him in this action, while they continue to hold the land they so acquired from him.</p> <p>The question, as you see, for you is first, was there an arrangement made by anybody such as testified to by Earl ? "Was that brought to the knowledge of the company? Did they subsequently in pursuance of this arrangement and by way of carrying it out take possession of Mr. Earl’s land and do they still hold it ? Did they know that Earl took possession of this land and enclosed it? If so, we say as a matter of law that the defendant would be entitled to hold possession of the land so taken by him in exchange for what he surrendered.</p> <p>If you find adversely on any of these facts, if you find there was no such arrangement, if you find that the company had no notion of it, if made, then the plaintiff is entitled to recover. These are questions purely for the jury, and your verdict will be either for the plaintiff or for the defendants, as you-find upon them.</p> <p>The verdict was for the defendants. The land company then took a writ of error, complaining of the charge of the Court, and the answers to the points.</p> <p>argued that the title to the land was shown in the plaintiffs. There was no authority shown in the surveyors to make the arrangements set up by the defendants. The land company is not estopped ; Bispham’s Principles of Equity, sections 282, 284, 288, 289, 290, 291; Hill vs. Epley, 31 Penna., 334; Crest vs. Jack, 3 W., 240; Hepburn vs. McDowell, 17 S. & R., 383; Knouff vs. Thompson, 16 Penna., 361; McCormick vs. McMurtrie, 4 W., 195; McKowen vs. McDonald, 7 Wr., 443; Miranville vs. Silverthorn, 48 Penna., 147; Farmer’s Bank vs. McKer, 2 Penna., 318.</p> <p>argued that the charge of the Court was as favorable to the plaintiff as it could ask for. Whenever there is any evidence which alone would justify an inference of the undisputed fact, it is given to the jury; Howard Express Co. vs. Wile, 64 Penna., 201. The Court could not give binding instructions; Rhodes vs. Frick, 6 W., 324; Lewis vs. Carstairs, 5 W. & S., 209. Having dedicated this land to public use, as á street, the plaintiff has put it out of its power to reinstate the parties in the same position as they were before, and for that reason cannot recover; Christy vs. Barnhart, 14 Penna., 260; McMahan vs. McMahan, 13 Penna., 376. The parol partition between defendants in common is good; Rider vs. Maul, 10 Wr., 376. The land company is estopped from recovering from the defendants while the land taken by them is in their possession or dedicated to public use; Martin vs. Ives, 17 S. & R., 364; Beaupland vs. McKeen, 28 Peana., 124; Smith vs. Warden, 19 Penna., 430.</p>

E. G. Swartz, counsel for Benjamin Schmoyer, presented his petition to the Court of Common Pleas of Lehigh County, as follows, viz.: That on July 24,1877, judgment was obtained against the defendant in the above case for one thousand and seventy-nine dollars; that on August 20,1877, Daniel Stettler became bail for stay of execution ; that a recognizance was executed and taken on that day in due form, and September 3, 1877, approved by David Laury, who was at that time one of…

This case arose upon the following ease stated: The company, plaintiff, was legally the owner of the right of way for and had located and constructed its road bed at the place of intersection of Parker street hereinafter mentioned for a long number of years before the said city, defendant, had been incorporated or any plan of streets of said city made and before said Parker street had been projected, surveyed, laid out or ordered to be opened.

The adjudication was as follows, per IIanna, P. J.: It appeared that the accountant was appointed guardian on February 28, 1874, upon the petition of the mother of the minor, he then being under fourteen years of age. Accountant neglected to file a triennial account. Whereupon on Oct. 6, 1877, he was cited to file the same, and neglecting to comply therewith, on October 27,1877, he was peremptorily ordered by the Court to file his account on or before November 10,1877.

<p>A master’s finding, confirmed by the Court, -will not be reversed except for palpable error.</p> <p>A master appointed to settle a partnership account is not obliged to adopt the conclusion arrived at by an expert book-keeper employed by agreement of counsel to examine the books of the firm.</p>

A judgment was entered on a judgment note for for $76.-30$ signed by E. Neyhart & Son, and by E. C. Gault. It was in favor of W. II. Minick.

County. Im Equity. The facts of the case are set out in the opinion of, the Court below, delivered May 7, 1880, per Elwell, P. J.: In order to a clear undestanding of the matters in controversy between these parties, a statement of the uneontroverted facts which are either admitted in the pleadings or established by undoubted testimony seems to be necessary before proceeding to consider the conclusions of the master which are the subject of exceptions on the part of the…

2, of Allegheny County. This was an action of trespass brought by William Eisher against Jesse Dunlap et ah, for talcing down a wire fence which was claimed by plaintiff to be on his land. Afterwards the Pennsylvania Company, operating the Pittsburg, Eort Wayne & Chicago Railway, was substituted as defendant.

2, of Philadelphia County. In Equity. This was an appeal by Rebecca. G. West, executrix and sole devisee of Edward A. Graham, deceased, in a case in equity against David W. Bradley’s estate.

An auditor was appointed to distribute the estates of Joseph Weiss and Susanna Weiss, his wife. He made a report which was excepted to ; and the Court sustained the exceptions in the following opinion, per IIagenman, P. J.: Joseph Weiss died in 1863, leaving a will wherein he appointed his wife, Susanna and his brother-in-law, Reuben Weiss, his executors. Reuben died, thus leaving Susanna to ■survive him, who administered the trust.

This was a scire facias sur mortgage, and was tried before the Court without a jury. The facts found and conclusions of law thereon were as follows, per Watson, P. J.: Joseph Eyre, the defendant, was the owner of the mortgaged premises, consisting of a tract of sixty-four acres and twenty-six perches of land in Newtown Township, in this county.

This was an action of ejectment brought by John Butter-man and others against Charles Pilger and Frederick William Pilger. Held: and that after that notice Charles Pilger went on and purchased this propertp, then the doctrine of estoppel would not apply. Of course, gentlemen, there is hardly any question upon that, there is no dispute about that notice, it was sworn to you, it was read there, it was attached to the writ, it is in evidence.

The affidavit to open a judgment entered on a judgment note was as follows: H. L. Wyman and Isaac Colegrove, being duly sworn according to law, doth depose and say that they are the defendants in the above judgment and execution that is issued thereon, and that they have a full, legal and just defense to the payment of the whole of the plaintiff’s claim upon the above judgment and execution, the nature and character of which is as follows, to wit: That the note upon which…

This was an action in debt brought by Mordeeai Duff against Andrew Myton, executor of Jacob Smith, deceased, and was founded on a paper of which the following is a copy: March 7,1870. $450.00. I promise to pay to Mordeeai Duff or order the Sum of hundred and foure fifty fifty dolllars on demand with eight per cent, interest from this date until paid without defalcation. Value received — x—, - \ | SEAL. | '-'Jacob Smith. Jacob Smith.

1, of Philadelphia County. In Equity. , The facts of the case are fully set forth in the opinion of the Court delivered December 3rd, 1881, per Peirce, J.: The plaintiffs and defendants, with the exception of Mrs. Louisa Drew, one of the defendants, are stockholders of the Arch Street Theatre. Mrs. Drew is the lessee of the theatre.

<p>Appeals from the Orphans’ Court of Philadelphia County,</p> <p>The testator, Thomas Williamson died August 26, 1871, leaving a will wherein Passmore Williamson was appointed executor. Passmore Williamson’s first account was referred to an auditor, who made his report. Upon exceptions to said report, the Court confirmed the report in the following opinion by</p> <p>Penrose, J.:</p> <p>Letters testamentary in this estate were granted September 4, 1871, to the accountant, who, on the 14th of December, 1872, filed an account of'his administration to July 26, 1872. This account was referred by the former Orphans’ Court to the auditor, who, within a proper time, completed his report, and gave notice that it would be filed October 16, 1873. At the request of counsel, by whom it was supposed an amicable adjustment of certain matters in dispute might he made — the parties being very near relatives — the filing of the report was delayed until March 2, 1878, the argument before the auditor upon the exceptions presented, not having taken place until December 28,1877.</p> <p>A considerable part of the estate consisted of canal stocks, turnpike stocks, etc.,'which were not legal investments. They were, however, investments made by the testator himself, and in the soundness of which, it is said, he had much confidence. The executor, to whom the whole estate, real and personal, had been given to hold in trust for the purposes of the will, and who was the testator’s son; had, in the exercise of his judgment, thought it better not to dispose of those stocks which at that time were yielding an income ; and he had, at the same time, paid interest on certain indebtedness of the testator, instead of paying off the principal.</p> <p>It does not appear whether, at the time the account was before the auditor, these stocks had depreciated or not, though since then, it is said, they have done so to a very large extent. But the auditor was asked, by counsel for exceptants, to surcharge the accountant with the then value of the stocks as so much cash, on the ground that they were not legal investments and should have been disposed of within the year after testator’s death. The auditor declined to do this, as he did also to grant the request that he would order a sale to be made, and the proceeds brought into the account; as to which, he was of opinion that he had no authority.</p> <p>The first exception relates to this refusal on the part of the auditor.</p> <p>The rule with regard to the duty of a trustee, into whose hands investments made by the testator himself may come, differs very greatly from that which governs him in making !his own investments. In the latter case he becomes liable if jhe deviates from the line marked out by the law, should a loss arise. In the former ease much is left to the discretion of the trustee, and if in the honest and proper exercise of that discretion, he delays the realization, he may not be held liable for any loss arising from such delay; see Hill on Trustees, *880; Barton’s Estate, 1 Parsons, 24. It is true that it has been said that Barton’s Estate has been overruled by Pray’s Appeal, 10 Casey, 100 ; but it will bo found that the point decided in the latter ease was as to an investment by the trustees themselves, which was also the case in Hemphiirs Appeal, 6 Harris, 303, and Worrell’s Appeal, 11 Harris, 44.</p> <p>In Buxton vs. Buxton, 1 M. & Cr., 80, where executors had delayed the sale of Mexican bonds for a year and seven months. after the testator’s death, in the hope of a rise in price, the Court refused to charge them with the loss.</p> <p>The discretion of the accountant in this respect was..not• exhausted when he filed his account. If he. supposed that the: interest of the estate would be promoted by a still longer delay, it was for him, and not the auditor, to decide upon the point, leaving to the settlement of future accounts the question whether the discretion had been properly exercised. It is not pretended that he had not acted in good faith, nor is it even asserted that at that time any depreciation had taken place. : '</p> <p>We think the first exception must be overruled.</p> <p>A very different question will arise when the account, subsequent to the period of the present account shall be filed, if it should appear that, notwithstanding the request of exceptants, there was a long-continued refusal to sell, and a consequent loss. Upon this, however, we express no present opinion.</p> <p>Another exception was to the action of the auditor, in refusing to disallow the credits for interest upon certain indebtedness, which it was said would not have accrued if the' accountant had converted the securities already referred to and paid off the principal. The auditor’s report shows that the principal could not have been then paid because the debts were due to estates of which the testator had been trustee, and as to which he had directed that his executors should1 continue to act as trustee until a successor should be legally' appointed. Besides this, the securities were at that time producing an income for the estate quite as large, if not considerably larger, than the amount of interest paid out; so that, in this respect, irrespective of the question of depreciation, the estate was the gainer, rather than the loser, by the failure to convert.</p> <p>This exception is overruled.</p> <p>The will of the testator gave the estate to the executor “in trust, to manage the whole thereof carefully, so as to preserve and keep the same productive; and to collect, get in and receive the income of the several portions as the same shall accrue, and after deducting thereoutall taxes, Cost of repairs of real estate, and necessary expenses of executing the trust, which shall include a commission of five per cent, to himself for his trouble, care and integrity therein, the clear net income' to pay in half-yearly payments, one equal fifth to his wife, and one equal fifth to each of his four children — the accountant being one — during the life of the wife, with a provision that the amount so to be paid to the wife should never be less than $2,000 per annum.” The payments to the daughters, all of whom were married, were to be for their separate use. At the death of his wife, the executor was directed “to continue the management aforesaid, for the benefit of the four children; and so distribute and pay the whole net income * * * as that each shall receive an equal fourth part thereof * * * during his or her respective natural life. And upon the decease of either one of my said children, and successively of each of them, then, as respects one equal fourth part of the corpus or principal of my residuary estate, to and for the only proper use of his or her child, or all of his or her children; if more than one, who shall have attained or shall attain the age of twenty-one years, and the issue of any such who shall have died, or who shall die under that age, leaving issue.” * * * “But if either of my said children shall die without leaving a child or issue of a deceased. child, him or her surviving them, as respects the share ‘so limited,’ I will and direct it shall be held for the equal use and benefit of my other children and their respective issue, upon and subject to the same trust,” etc.-</p> <p>This provision, so far as concerns the grandchildren, was altered by a codicil, which directed that “the principal proceeds of all the residue * * * shall be reserved and preserved for all my grandchildren in equal shares per capita ; and, therefore, I will and direct that when, according to the limitations and provisions of my said will, any one, and successively as' each of my grandchildren shall become entitled to receive his or her equal portion of my estate, the same shall be determined and limited by the quotient of the whole reserved principal divided by the whole number of my grandchildren then living- and the issue of such of them as shall ’¡have previously died leaving issue,” such issue taking per stirpes * * * “And, also, if after any one or more of my grandchildren shall have received his or her or their respective proportion,” * * * “one or more of them sha,11 die without issue surviving,” * * * “such portion of my estate.” * * * “shall go and be payable in equal shares to all the others of my grandchildren living, and the issue of any of them as shall be then dead, at the time in and by my said will specified and limited.”</p> <p>The auditor was asked to divide the estate into five equal parts “so that the share of each cestui que trust might be ascertained and set apart.” He was also asked to decide that the limitations to the grandchildren were void as offending against the law with regard to perpetuities. The latter he declined doing, on the ground that the questions before him only related to the distribution of income, and that he had nothing to do with the ultimate disposition of the principal. He declined, also, to make the division asked for.</p> <p>It is now conceded that the division could not have been made at that time, because, during the life of the widow, it was necessary, in order to secure to her the payment of the full amount, which, under any circumstances, she was to receive, that the whole principal should remain in the custody of the trustee for that purpose. It is said, however, that the widow has since died ; but this was not until long after the report had been prepared, and after the functions of the auditor, except for the purpose of reviewing what he had already done, had ceased. It certainly was not error when the point was decided by him. 'Whether or not a division should be made since the death of the widow can be decided when the final account of the executor is filed, when it will be determined how, the administration being closed, he shall hold lias trustee.</p> <p>Hoes the limitation to the grandchildren violate the rule with regard to perpetuities ?</p> <p>At the death of each child a proportionate part of the corpus of the estate is to vest in such of the grandchildren as shall then have attained the age of twenty-five years, and the issue of such as shall have died leaving issue, and in such grandchild as shall thereafter attain the age of twenty-five, years. So far as .concerns the latter, the validity of the gift,' to them will depend on the contingency of Whether they shall' attain the required age within twenty-one years of the death of the child whose share is to be divided. If they will not, the limitation to this extent will fail, and there will be pro tanto an intestacy. Whether this will be so or not cannot be determined until the period arrives upon which the question depends, namely, the death of each child. There is a provision for the death of a grandchild in whom an interest has been invested, which, no doubt, is invalid, but this does not affect the present question.</p> <p>The third, fourth and fifth exceptions are overruled.</p> <p>We must also overrule the sixth exception. The auditor, we think, has nothing to do with the question of the fall in price of stock, since his report was made in 1873. Had he then filed his report this would be very clear. That it was retained by counsel, and not filed, does not change the result; his functions were ended when he passed upon the account as it then was.</p> <p>If a loss for which the accountant is responsible has. taken place in the interval, that can be settled when his account for that period shall be filed.</p> <p>We do not see, so far as the present account is concerned, that anything has been done to deprive the accountant of his commissions, and his good faith has not been questioned.</p> <p>Exceptions dismissed, and the report of the auditor cqn¿ •firmed.</p> <p>The following is an extract from the adjudication upon the .second account filed by said Passmore Williamson:</p> <p>The decedent died August 26, 1871, having first made his last will and testament, with a codicil attached, both duly ■proved September 1,1871, by which, after bequeathing certain pecuniary and specific legacies he devised and bequeathed all the rest, residue and remainder of his estate unto Ms son, Passmore Williamson, the accountant in trust, “to manage the whole thereof carefully, so as to preserve and keep the same productive of income,” and after deducting all taxes, repairs of real estate and expenses of the trust, including a commission of five per cent, for his “care, trouble and integrity,” to pay over the net income, half-yearly, as follows:</p> <p>One-fifth part to testator’s wife ; one-fifth part to each of his daughters, Phcebe, W. Eldridge, Anna W. Stackhouse, and Mary W. Coggins; and the other fifth part to retain for his own use. ■</p> <p>. The widow of testator died July 2, 1876, so that the income of the trust estate is now payable in four equal shares to his above-named children, all of whom are still surviving.</p> <p>The annexed account is the second filed by the executor and trustee, and was carefully and critically examined and found to be entirely correct.</p> <p>Mr. Miller, however, on behalf of the cestui que trust represented by him, claimed to surcharge the accountant with the market price of the securities in the hands of the accountant, known and termed “illegal investments,” at the time when the demand was made before the auditor appointed to audit the first account of the executor and trustee, that such investments should be directed to be sold, the interval between the death of the testator and that period having been a reasonable time for the conversion of said securities; and such a demand, coupled with the fact of the existence of large debts of the testator unpaid, being a reason why the executor should no longer have delayed a conversion.</p> <p>Mr. Miller further claims that the accountant should be surcharged, on the basis of having immediately invested the market prices of such securities at that time in legal -investments at the prices of that date.</p> <p>And, in addition, claimed that accountant shpuld be disallowed all commissions.</p> <p>The annexed account is both a principal and “income” account.</p> <p>The first account filed was in the same form, and no “commissions” upon the principal of the- estate were therein claimed.</p> <p>The executor apparently delayed his claims for commission until the filing of subsequent accounts, for in that annexed he' ■claims credit under date of:</p> <p>1872, 8 mo., 30, by commissions on $44,788 27</p> <p>capital disbursed 5 per cent., 2,238 91</p> <p>1876, ££ by commissions on 40,185 39</p> <p>capital disbursed, 2,009 27</p> <p>This may be convenient for the accountant, but it was not the proper form to charge commissions.</p> <p>Commissions are not allowed on “disbursements,” but on “receipts.” And particularly, as in this case, where the executor is also trustee, and under the Act of Assembly is allowed but a single commission on the principal of tbe estate, the correct mode of deducting the compensation of the executor is to charge the same against the principal of the estate in his account as executor, whereby the balance to be held as trustee will be accurately ascertained and so awarded. This balance then forms the corpus of the trust, the income of which only is subject to any abatement for commissions allowed.</p> <p>As to the claim to surcharge accountant.</p> <p>It appeared from the evidence presented that testasor and his son, the accountant, had been in business together for many years in this city, and the latter was fully conversant with the affairs of his father, and familiar with the nature and character of the investments made by him from time to time¡</p> <p>Upon the death of the testator his personal estate consisted largely of investments in Schuylkill ¿Navigation Company, Lehigh Coal and Navigation Company, Lehigh Valley Nail-road Company, Bank, Turnpike and Sáfe Deposit Company’s stocks, all of which had been in his life-time profitable dividends and which came into the hands of accountant as his executor.</p> <p>They continued to pay large dividends after the death of testator and were not immediately sold by the accountant, for the reason that being largely interested in the estate himself, he believed it for the benefit ai.d advantage of all the cestuis que trust to retain the investments, as they were realizing a greater .income, than would have been derived, from securities authorized by Act of Assembly.</p> <p>The testator in his life-time had acted in a number of instances as executor, administrator, trustee, etc.' He had also deposited with him by clients and friends sums of money for investment.</p> <p>These moneys and the funds of the- estates committed to him, were mingled with his own funds, in some instances no-separate investment or account being kept. .</p> <p>At his death these estates and depositors of course became-creditors of his éstate, and the duty- devolved upon accountant of' arranging’ the various claims and making' settlements with the creditor's. This required' time, money and labor. In order to preserve'the'assets'o’f the estate from loss and'sacrifice, the! accountant, if not in the'possession'of sufficient moneys of the1 estate, was in the habit of advancing his individual’ funds and) thus discharging’ the indebtedhess of testator, and the-same^ was ascertáined and'Settled from time to ’ time; in the1 mean-j time paying over the. jncpme from .the real and personal estate to the several cestui que trust.</p> <p>When accountant-.filed his first account,, in December, 1872,' testator-having-died as stated in August, 1871, the debts, of testator had not all been full.y..paid,-and for the reasons, mentioned. Accountant still retained- , the-securities and invest-( ments made by testator. Said account was referred to, an auditor by the former Orphans’ Court, to audit, settle and distribute the balance in the hands of accountant. The account was found to be truly correct; but Ml Miller, as counsel for Mrs., .Cpgghis, one of the cestui que trust., requested the auditor to direct,,“that, the .executor should, dispose of the personal property,as.soon as necessary and pay the debts of the decedents at once,” and convert into money all such investments as are not proper for a trustee to hold under the laws of Pennsylvania and invest-the'proceeds legally.' .....</p> <p>The. auditor being of opinion that he had no authority to so. direct the, executor, declined to report as he had been requested. , , -</p> <p>The report of the auditor was prepared for filing on Oet. 16,1873. But it was not filed, owing to the fact, that accountant being still of the opinion that it would be a disadvantage to the estate to sell the stocks and other investments in his hands, and his counsel desiring, if possible, to amicably arrange the differences between accountant and his sister, the cestui que trust obtained the repon, from the auditor, and retained it in his possession with a hope that an amicable settlement might be effected. It is incorrect to say that accountant had retained all the investments of testator, as it appears that he sold on September 25, 1872, $5,000 Bond Forest Improvement Company at a loss of</p> <p>$262 98</p> <p>And on</p> <p>November 23,1872, $4,000 bonds of Little Schuylkill Navagation Company at a loss of ' . . 27 61</p> <p>■ $290 59</p> <p>And also on</p> <p>November 26,1872, sixteen shares Delaware County National Bank stock, at a gain of . . $ 416 00</p> <p>April 28,1875, $3,400 Bonds, Lehigh Navigation,at a gain of....... 569 50</p> <p>May 1, 1875, $600 bonds, Lehigh Navigation, at a gain of....... 100 50</p> <p>October 14,1875, $2,000 bonds, Lehigh Navigation • • at a gain of.......315 00</p> <p>August 26,1876, $3,000 bonds, Lehigh Navigation at a gain of . . . . . . . 562 50</p> <p>$1,963 50.</p> <p>It also appeared that the special cause of objection was the holding by accountant of the shares of stock of the "Lehigh Navigation Company, and as testified by accountant, the report of the auditorwas not filed for the additional reason, as understood by him that he was to continue to pay the liabilities of the estate as fast as possible, and when that was done, the report of the auditor should be filed. . He accordingly continued to pay off the debts, and to comply with the-request of Mr. Miller, with what he considered would be the least loss to the estate, sold those investments paying the least income, and also three-hundred shares of Lehigh. Navigation stock, which had not been paying any dividend for some time. In June,-1873, the accountant sold the stock for $39 per share, and in" 1874 it .rose above par and sold for $52 per share. Upon the remaining shares'retained by accountant he received eight per cent, dividend from June, 1874, to June, 1876. In September, 1876, the dividend was reduced to one and a half per cent., and since then none has been paid. The report of the auditor was still in the custody of the counsel for accountant, when the annexed second account was filed in October, 1877. During all. this period of nearly four years accountant had been managing the estate as theretofore, paying its debts, and distributing its income among the cestui que trust.</p> <p>It therefore became necessary to dispose of the first account before the second could be audited. And accordingly the auditor was requested to hold another meeting and appointed for that purpose, December 28, 1877, at which time he was requested by the counsel for the cestui que trust, Mrs. Coggins, to re-open the audit. This being refused by the auditor, exceptions were filed to his report by Mr. Miller, which were argued before this Court, and dismissed on March 30, 1878.</p> <p>The accountant, during the whole course of his management of ■ the estate, has endeavoeed to conduct and settle its troublesome and somewhat complicated affairs with the sole intention of promoting the interests of all the parties, he being, as stated ^interested-to the extent of one-fourth of the income. Being an intelligent'' and capable business man, he lias given the same, if not more labor and attention to the estate than if it had been his individual property. Iiis accounts have been found correct in every particular, both principal and income. *</p> <p>He has been guided by the advice of competent counsel, in all respects evinced' care and fidelity, a strong desire to protect and preserve the estate, and exercised his best skill and judgment in husbanding its resources. He sold certain of its securities for less and others at an increase over their appraised •value, and retained the remainder of the investments made by testator because they yielded a larger income than legal ' investments would have realized, and when one corporation ceased to pay a dividend, he still held the stock from his faith in its ultimate rise in value. Accountant kept a bauk account as executor, and a separate bank account as an.individual, and while he admitted that he might have deposited moneys of the estate in his own private account, and deposited his own moneys in his executor’s account, yet there was no evidence that he thus used the moneys of the estate in his own business, and-made any profit thereby.</p> <p>No request was made that the Court now order and direct the accountant to sell the remainder of the investments in his possession, and Mr. Miller in answer to the inquiry of the auditing judge, stated that he did not now present such a demand, preferring to rely upon his claim to surcharge accountant. In view of all the facts presented the auditing judge is of tlje opinion that no sufficient reasons have been shown to justify a surcharge of the accountant with the market value of the investments of testator, • either at the expiration of o ne year from the death of the testator, or at date when the demand for a conversion was made before the auditor, or at the present time. The objecting cestui que trus have displayed great laches and a delay of four years, during which time they received their share of the income from the •accountant without objection, which would naturally create the impression that they had either withdrawn their previous demand for a conversion, or acquiesced in the opinion of the executor that it would be injudicious to convert and probably sacrifice the securities of the'estate. However, the executor in compliance with the wish of the ccslui que trust, but con. trary to his judgment, did sell certain of the investments most strongly objected to at a much less rate than they realized the succeeding year, and still retains the remainder...</p> <p>It is not pretended that he has been guilty of willful mismanagement or negligence, but rather that his judgment and discretion are at fault in believing that it would be advantageous to the interests of the parties to still retain these invest-merits. He has been acting throughout in good faith and according to his best judgment, and should be protected. Again, although it was admitted that some of the securities held by accountant had depreciated in value, yet non constat that they will, not perhaps at an early day reach their former value and declare dividends.</p> <p>The cestais que trust do not now demand a sale of the securities, but insist that the accountant should be compelled to take them at a price, much less, perhaps, than would have been realized at the time the demand was made. Under all the circumstances this would be unjust to the accountant, and unwarranted by law or equity. He was not k u .d to sell the investments of testator immediately afti r his diath, but he, as a trustee, had the right to exercise his best judgment and discretion, and do that which to him, aided by advice. of counsel, seemed most < advantageous and beneficial to the estate.</p> <p>The accountant was directed by testator “to manage the whole thereof carefully, so as to preserve and keep the same productive of income,” and the evidence shows he endeavored to faithfully discharge this duty. If he erred, it was a mistake of judgment for which he is not liable.</p> <p>The claim to surcharge the accountant is therefore refused, and as no good reason was shown why he should be deprived the compensation and commissions directed by testator they are allowed.</p> <p>The balance - of the estate in the hands of accountant, as appears from annexed account, is ..... $125,252 40</p> <p>From which is to be deducted costs of clerk of Orphans’ Court..... 23 50</p> <p>Balance for distribution . . . $125,228 90</p> <p>invested in securities, a schedule of which is annexed to the account, and which are awarded to accountant as executor and trustee under the will of testator.</p> <p>The following is an extract from the adjudication upon the third account filed by Passmore 'Williamson.</p> <p>No creditors appeared nor were any claims presented agaiust the estate. The annexed account was carefully examined and found to be correct, no objections being made thereto, except as thereafter mentioned.</p> <p>Mr: Miller claimed that accountant should be surcharged with the market value of the securities in the hands of accountant not recognized as legal investments, and also that the commissions of accountant be disallowed.</p> <p>These objections were also made by Mr. Miller to the con. firmation of the second account, as appears upon a reference ¡to the adjudication thereof, and filed herewith.</p> <p>And as Mr. Miller, in reply to a question from the auditing judge, declined to request the Court to direct accountant to eell and convert the securities and investments in his hands •belonging to the estate, it is unnecessary to again state why -said objections must be overruled.</p> <p>The annexed account shows that since the filing of the second account accountant has sold and converted sixty-seven shares of Provident Life and Trüst Company stock, for . . ... $5,417*12</p> <p>Leaving unsold in his hands • one hundred shares.</p> <p>The 167 shares were apprised at . , . 9,018 00 Or $54 per share.</p> <p>The sale of sixty-seven shares realized a gain of 1,799 12</p> <p>Accountant also sold twenty-five shares of Philadelphia Trust and Safe Deposit Company, for 3,004 75</p> <p>At a profit of....... 504 75</p> <p>And accountant subsequently sold forty-five shares of stock of the Provident Trust Company, for 3,375 37</p> <p>Appraised at $54 per share.</p> <p>At a profit of ...... 945 37</p> <p>Mr. Speakman then stated that as the administration of the •estate had been fully closed, and all known debts of the testator fully paid and discharged, it was proper that the estate and assets in the hands of the accountant, as executor, should be transferred to him as trustee. And as accountant had not deducted the entire commission or compensation due him, as ■executor, from the corpus of the estate, Mr. Speakman claimed. that he be awarded and allowed to retain five per cent, commissions upon the unconverted securities in his possession, 'the executor having in his account claimed credit for his commissions upon the amount of cash received by him.</p> <p>In support of the rate of commissions claimed, Mr. Spealcman relied upon the fifth clause of testator’s will, which is as follows: “I give, devise and bequeath all the rest, residue and “remainder of my estate, both real and personal, whatsoever . “and wheresoever, unto my son, Passmore Williamson, his “heirs,' executors and administrators ; but, nevertheless, upon “trusts and for the uses and purposes following ; that is to say,, “in trust to manage the whole thereof carefully, so as to preserve and keep the same productive of income, and to collect “get in and receive the income of the several portions as the ■ “same shall accrue, and after deducting thereout all taxes, cost “of repairs of real estate, and necessary expenses of executing the trust, which shall include a commission of five per “cent, to himself for his trouble, care and integrity therein,. She net clear income to pay over,” etc.</p> <p>Mr. Miller, however, objected to the allowance of commissions, for reasons mentioned in the adjudication upon the second account of the executor, and also therein passed upon.</p> <p>Mr. Miller also objected to the rate of commissions claimed as being excessive upon securities unconverted, and for the reason that the five per cent, spoken of by testator in his will had reference to the income from his estate only,' and not to the principal.</p> <p>These last- objections must be sustained, as the auditing judge is of the opinion that the.commission of five per cent, mentioned in the will had reference to the compensation of the trustee, and not that of the executor; and further, in harmony with the well-settled practice of not awarding the-same rate of commissions, or compensation, where the executor . still retains unconverted investments made by his testator, as where he has been obliged to sell the same for the purpose of paying debts or making distribution, we think the rate claimed, namely five ceut., should be reduced to two- and a half per cent. Compensation to accountant to •this extent, is, therefore allowed and awarded to him out of ■ the investments and securities iu his hands; and the balance ,of the said securities and assets is awarded to him as trustee.</p> <p>Mr. Speakmau also claimed that an allowance be made to accountant of the sum of $500 for professional services and advice of counsel rendered in the management and settlement of the estate' and audit of- his aeeó'uuts.</p> <p>Mr. Miller objected also to this allowance. First, because •up to'tlie end of the auditor’s report Mr. Speakman fixed his -own fee, and there was ah adjudication up' to that time and since-then he has shown no ground for charging the additional amount which he now charges.</p> <p>In regard to this allowance asked for, the record, as well as-the evidence, shows that the accountant has been obliged' to "employ the services of counsel ever since the filiug; of his first account in 1873.</p> <p>This account was referred to an auditor by our predecessors, before whom accountant and his counsel attended for months, resisting the attempts on the part of some of the cestuis que trust to surcharge and otherwise render him personally liable. But these efforts failed and his account was found to be correct iu every particular.. After the auditor’s report was prepared it was not filed for a period of between thiee and four years, during which time counsel was still employed in endeavoriug to effect an amicable settlement of the differences of opinion as to the proper management and settlement of the estate, between the accountant and his sisters, the objecting cestuis que trust, and advising accountant from time to time-upon matters connected with the estate. At the end of the time referred to the auditor was requested to call another meeting of the parties before him.</p> <p>He did so, and when the parties met, an effort was made by the cestuis que trust to re-open the audit, which the auditor refused. Exceptions were filed to his report, argued before him and overruled, whereupon the exceptions were afterwards argued before the Court and dismissed.</p> <p>The accountant then filed' a second account, which was called for audit before one of the judges of this Court. A num. ber of meetings were held, at which the account -was carefully and closely scrutinized, the accountant examined and cross-examined, claims to surcharge made and credit objected to, and atguments of counsel heard.</p> <p>A third or final account was then filed, the same being hereunto annexed. This was also closely examined, claims to surcharge again made, testimony again taken, and the account found to be correct.</p> <p>During all these proceedings the services of counsel were required by counsel, not in prosecuting any personal claim he had against the estate, or defending his negligence or default, but in substantiating the correctness of his account to the satisfaction of the cestuis que trust, and in resisting their •efforts to surcharge him without a legal cause. That an. executor is entitled to a reasonable allowance out of the estate for the services and advice of counsel cannot be questioned ; therefore the only question now is whether the amount asked for is reasonable and proper.</p> <p>In view of the length of time during which the services of ■counsel were necessary, the nature of the litigation, the variety of the labors performed by counsel, both before the auditor and the Court, the amount of the estate, the responsible duties of counsel, and the right of accountant to engage reputable •and capable members of the bar to advise, assist and defend him, the auditing judge is of the opinion that the allowance requested is not exorbitant but reasonable, and is therefore granted.</p> <p>Exceptions were filed to these adjudications, which were •overruled on December 28, 1878, in the following opinion, per</p> <p>Ashman, J.:</p> <p>The will of testator gave to Passmore Williamson, the •executor, the residue of the estate in trust, “to manage the whole thereof carefully, so as to preserve and keep the same productive of income,” and after deducting taxes, repairs and other expenses, including a commission of five per cent, to the ■accountant, to pay over the net income half-yearly in equal shares to testator’s wife and four children, one of whom is the accountant. In 1873 the executor’s first account was filed and referred to an auditor. Counsel for two of the daughters of decedent requested the auditor to 'direct the sale of certain securities and the conversion of the proceeds into legal invest, rnents. The auditor declined so to direct, on the ground of want of authority. For various reasons, with which, however, counsel for exceptants are not chargeable, the report of. the auditor was not filed until the present year, when the •exceptions to his refusal to direct a sale were argued and dismissed. Upon the audit of the present accounts, the second and third in order, the judge was. asked to surcharge the accountant with the market value of the stocks at the date of the demand for their sale, together with the interest which would have accrued if they had then been converted into legal investments. The refusal to surcharge is the subject of one of the exceptions. In the absence of any notice to the accountant to sell and re-convert the case would be comparatively free of difficulty. The discretion of an executor or trustee is nee •essarily large, and when honestly exercised, is viewed by the Courts, as the cases rather emphatically phrase it, with tenderness. His first duty, unless otherwise instructed, ordinarily is to sell the personal property of his decedent. But in the varying circumstances peculiar to the estate or to the time, a high sense of duty may compel him to disregard a rule which was really meant for his protection, and to assume; a responsibility from which it would have freed him, in order to save the estate from possible disaster. There is nothing new in this principle. Judge King said : “Although in general it is an act both of duty and prudence for an administrator to turn the testator’s goods and chattels promptly into available funds yet cases may be readily imagined in which too sudden a sale would be a maifest breach of trustBosio’s Estate, 2 Ash., 437. In Neff’s Appeal, 7 P. F. Sm., 91, Judge Sharswood ■vindicated the delay of an executor by saying that if he had at once proceeded to judgment and execution the whole debt would have been probably lost. And he added : “He should have been discharged with a- just enconium on his wise forethought and successful fidelity, instead of being condemned as guilty of supine negligence or willful i oglect.” It would, 'be affectation to collect authorities upon a point which appeals so directly to common sense. In the present case it is difficult to divide the two-fold function conferred upon the accountant. As executor he was bound, in the absence of controlling reasons to the. contrary, to convert the unemployed assets into legal securities; as trustee he was directed to “manage the estate carefully, so as to preserve and keep the same productive of income.” There is no necessary conflict between the two characters or the two sets of duties, but it is very evident that the one permitted a larger exercise of discretion than the other. Properly to weigh the conduct .of the accountant, it must be noted that he had been jointly' engaged in business for many years with his father, the testator; that the latter 'had invested largely in certain favorite and profitable securities, and that these securities at his death had come in bulk into the hands of the accountant. Ilis predilection for these investments was fairly the result of his intimate association with the testator, and the honesty of his motives, in declining to substitute for them legal securities which would be more secure, but less profitable, may be gathered from the fact that the right administration of th'e estate was as essential to his interests as to those of the exceptants. But it cannot be doubted for a moment that the latter had a right to- insist upon a literal compliance with the terms of the statutes defining legal investments, and it would be a most dangerous policy to uphold a life tenant in the enjoyment of high dividends to the peril of those in the remainder. Even to so plain a doctrine as this, however, there may be some exceptions. In the present case, for example, two of the co-legatees demanded a sale and conversion of the securities left by the testator, bht the auditor refused to consider the motion, and, acting under the advice of practiced counsel, the excutor chose to disregard it. If they bedieved that the interests of. the estate were seriously imperilled by this refusal, the parties in interest had an open door to relief through this Court. But they quietly allow five years to pass, during all of which time the report of the auditor lay unnoticed, and, at the end of that interval, when asked if they still insisted upon a sale, they declined to apply for it. This delay has robbed their demand of all its original force, nay may almost be regarded as a silent-approval of the course pursued- by the accountant. At all events in determining the measure of his responsibility, we cannot consider a demand which was never seriously pressed. The single test to be applied to his conduct is, was it characterized by good faith and common prudence ? Apart from the fact that the accountant placed himself under the direction of counsel, which according to Vez. vs. Emery, 5 Ves., 141, would of itself have saved him from liability ; the facts found by the auditing judge go far to vindicate his action upon both grounds.</p> <p>The estate of the testator, although large, was not free from complications, owing to the fact that included in its funds were those of various trusts, which had been committed to the testator, and of which the accounts kept were not, perhaps, as clear as they should have been. It was, therefore, long uncertain how large a proportion of the assets would be available for permanent investment, and the securities in which the bulk of the estate was invested, were, nearly all of them, among the best known and most trusted in the market. No one could have foreseen in 1873, the decline which after-wards took place in some of the stocks ; and after the decline had fairly set in, the accountant might justly have bee.n chargeable with folly or worse if he had sold more than he could help at what would have been a ruinous sacrifice. It must be remembered, also, that the question of mala Jides is agitated not by creditors, but by legatees, and only by some of them, and as to them a more liberal view of an accountant’s discretion will be taken than as against creditors; McNair’s Appeal, 4 R., 148; Bruner’s Appeal, 7 P. F. S., 46.</p> <p>One other point may be adverted to as bearing upon the question of good faith. In refraining from a sale and conversion of the securities, the accountant was depriving himself of a rate of compensation which would otherwise have been awarded .to him, and, in this regard, his sense of duty, even if a mistaken one, was paramount to his sense of personal interest. Without further elaboration,^ or reference to authorities, which are abundant and clear upon the positions here assumed, the exceptions upon this point are dismissed.</p> <p>With the failure to establish the charge of gross negligence or of bad faith must fall the demand for a disallowance of commissions to the accountant. The rate of his commissions was fixed by the will at five per cent., and was properly allowed at that figure in the adjudication. For the reasons stated by the auditing judge the counsel fee paid by accountant nwas a reasonable charge, and the exception to its allowance must be dismissed.</p> <p>The mingling by the accountant of the funds of the estate with his own, v as also the subject of exception. Nothing can be said in defence of this practice, and it is usually so indicative of negligence or fraud as to call for the infliction of a penalty. Interest upon the funds so p°erverted, or the profits which they had earned for the accountant, would be at once awarded to the estate, if either the amount used or the profit were shown. In this case, however, the commingling of funds arose from the fact that the accountant frequently paid claims against the estate with his own' moneys, and repaid himself with the first moneys of the estate thereafter received by him; but his record of these transactions was so kept that it was almost impossible to ascertain whether at any given time the balance of cash on hand belonged to himself or to the estate. It was not denied that when his account was finally made up, every item of credits was satisfactorily vouched, and it was not pretended that he has failed to charge himself with every asset which had come into his hands. 'Moreover, it was not shown that any loss to the estate or profits to himself had accrued.</p> <p>The error of the accountant, and it was a not serious one, resolves itself into an error of book-keeping ; but it was free from suspicion of fraud, or, as we have seen, from proof of injury. It would be a harsh measure to visit upon such a .transaction the punishment which is due only to a case of gross disregard of duty. The exception is disallowed.</p>

3, of Philadelphia County, John E. Moore, on May 12, 1879, made a written contract with the defendant to do the tin roofing necessaiy on houses being erected by the defendant. He finished the work on Oct. 9', 1879, and the amount due him under the contract was $633.52.

4 of Philadelphia County, This was an action on the case for slating work done in the erection of the Kansas and Colorado Buildings at Ocean Beach, N. J. David H. Wilson, the plaintiff in error, and Thomas Kennedy, who was not sued, bought as partners, in 1876, the structures on the grounds of the Centennial Exposition at Philadelphia, known as the Kansas and Colorado Buildings.

In Equity. The Pennsylvania Railroad Company filed a bill in equity against the Somerset and Cambria Railroad Company, alleging that it had purchased from the State a branch of a canal running southeastwardly from Johnstown to a point on Stony Creek,- three miles distant, known as the “Stony Creek Feeder.” That defendant had trespassed upon said feeder, and was constructing a railroad thereon. The Pennsylvania Railroad Company claimed: 1.

2 of Allegheny County. This was an action in debt upon a recognizance.

4, of Philadelphia County. The rule of Court provided that where the copy of book entries, &c., has'not been filed within a Week after the return day ; the defendant, or his attorney, shall have 48 hours notice of filing the copy of book entries before judgment for want of a suffi&ient affidavit of defence shall be taken. Judgment was taken for want of an affidavit- of defence upon filing an affidavit that notice was left at the office of defendant’s counsel.

<p>A railroad- company is liable for damages for the death of a man caused by their engine and crew upon ano her railroad if the crew were not under the orders of the other railroad company.</p>

In Equity. George Correy by his will; dated June 13, 1781, devised as follows; inter alia: “I leave and bequeath to my son, Robert Correy, the plantation I now live upon * * * with all the housings,, .goods and waters to be by him and his heirs enjoyed forever,, after him his oldest- son, if no son his eldest daughter and .their heirs. In 1795 Robert Correy’s oldest son, George, died without issue before Jiis father.

This case was tried before the Court without a jury. The facts found were as follows: 1. On the — day of April, 1870, the plaintiff became the holder of a promissory note of the date of April 11, 1870, made by Nicholas Hunter, to the order of the defendant, for' the payment of two thousand dollars, one year after date, endorsed by the defendant, and bearing a written direction to credit the drawer, signed by defendant. 2.

Appeals from the Orphans’ Court of Montgomery County. The opinion of the Court below was delivered by Ross, P. J.: The question or questions that are presented by this record require at the hands of the Court a brief statement of the facts involved. The decedent, an old man, worn out and diseased, died upon.the 27th day of August, 1879. At the time-of his death he was unmarried and left no children or other-descendants.

John Anderson,: the appellant, and Robert Anderson, the appellee, sons of the decedent-, administered to her estate. They filed an inventory, .sold the real estate and then settled an account that was confirmed b}*- the Court. Robert having settled no account, John on the 15 th May, 1847, petitioned the Orphans’ Court for a citation to compel him to do so. A citation was issued on the 4th January following.

Frederick Stong, father of the appellant, died at the age of 93 years, having been feeble for ten -years before his death. He rented his farm to Philip Stong on shares and. boarded with him.

4 of Philadelphia County. A scire facias sur municipal claim for paving was issued entitled, City to use of Thomas Young vs. J. Duval Rodney* trustee, owner, &c. An affidavit of defence was filed as follows: J. D. Rodney, the defendant, hies the following suggestion and affidavit of defence to the sci. fa. sur claim, as above stated, being duly sworn according to law, deposes and. says that he is neither the owner nor trustee of the premises against which the claim is hied,…