Volume 31 — Pennsylvania State Reports

Trespass, by the Church against Hanns, for breaking open its burying ground and burying a member of his family. The defendant claimed a right to bury there under the following sections of the Articles of Association, agreed on in 1835:— “ Article 4.

Appeal by Mary Everly, widow, from the decree of the Orphans’ Court of Fayette county. Petition for partition of the real estate of Jacob Everly, deceased, being a farm of 73 acres, among his widow and collateral heirs, he having left no issue. There were four inquisitions returned in this case ; three of them allotting to the widow one-half of the land including the mansion-house, which were all set aside; and a fourth appraising the whole land for sale, which was confirmed.

<p>It is error to issue an order for the opening of a private road before the damages are paid, or tendered and brought into court.</p> <p>It is error to confirm a report in favor of a private road and to order it to be opened eighteen feet wide, when the report estimates the damages for a road only twelve feet wide.</p> <p>In authorizing a private road partly over a private bridge of another man, it is the duty of the court to add to the confirmation such order relative to the maintenance and repair of the bridge by the applicant, as the case may require.</p>

Ejectment for a donation tract of 200 acres of land. The plaintiff, Samuel Beedy, showed title by purchase from the children of Jonathan Hammond, who died possessed of the land in 1827. The verdict shows that the children were illegitimate, because their father had a wife living at the time he was married to their mother.

The declaration charged that the plaintiff “ retained and employed” the defendant to iron his wagon, and the defendant “ undertook and promised to do it with care and skill;” and the breach assigned was, that “not regarding his promise and undertaking,” he did not do it with proper care and skill. The plea was non assumpsit.

<p>Error to the Common Pleas of 'Allegheny county.</p> <p>This was an action of debt brought by the defendant in error against Bennett and Kramer, to recover license fees for five drays, at two dollars each, and the penalty of five dollars imposed by the ordinance hereinafter set forth. The plaintiffs in error were the owners of the Pittsburgh Alkali Works, situated in Lower St. Clair township, and their warehouse was in the city of Pittsburgh. Their drays used in hauling from the works to the warehouse, necessarily passed through the streets of Birmingham. It was admitted on the trial that the plaintiffs in error were non-residents of the borough of Birmingham, and that all their property was taxed in Lower St. Clair township. The counsel for defendants below submitted several points, all of which were negatived by the court, and a verdict was directed for the plaintiff on the admitted facts of the case.</p> <p>By the Act of ITth February, 1852, § 5, it is enacted as follows:—</p> <p>“ That the burgess and town council of the borough of Birmingham, in the county of Allegheny, shall have power to ordain, enact, repeal, or amend all such ordinances or by-laws of said borough as to them shall appear proper and expedient; requiring, under penalty of such fine as the said council may direct, all owners of carts, drays, wagons, carriages, and other vehicles of burden or pleasure, using the paved cartways or streets of said borough, to register such vehicles at the office of the burgess of said borough, and pay such moderate license for such use as the said council for the time being may by ordinance order and direct.”</p> <p>The ordinance on which the suit was brought reads as follows:—</p> <p>1. “ Be it ordained and enacted, &c. That the owner or owners of all wagons, carts, cars, drays, omnibuses, hacks, or private carriages, of any description, used either for burden or pleasure, passing through the streets, lanes, or alleys of the borough of Birmingham, shall pay to the street commissioner, for the use of said borough, for each of said vehicles drawn by one horse, the sum of two dollars; and for each drawn by two horses, the sum of three dollars; and for each drawn by three, four, or more horses, the sum of four dollars; which payment shall be made on or before the first day of May in each year, &c.</p> <p>2. “ That each and every person neglecting and refusing to comply with the provisions of this ordinance, and being thereof duly convicted, shall forfeit and pay, in addition to the amount before specified, the -sum of five dollars, to be recovered before the burgess, or any justice of the peace, as other fines and forfeitures are by law collected,” &c.</p> <p>8. Relates to the owners of livery stables.</p> <p>4. “ That this ordinance shall not be construed so as to include farmers’ wagons bringing to market the produce of their farms, or the wagons or carriages of travellers; but all coal-wagons, lime-wagons, stone-wagons, or other vehicles, passing through the borough, on their way to Pittsburgh, or elsewhere, in their ordinary business, shall come within the provisions of this ordinance.</p> <p>5. “ This ordinance shall go into effect on the first day of January 1853,” &c.</p> <p>Dated August 5, 1852.</p>

The defendants in error presented their petition in the Common Pleas, June 28, 1854, representing that they had located their road through land of the plaintiff, and were unable to agree with him in relation to compensation, and thereupon viewers were appointed, and the damages were assessed at $1500, and confirmed in December by the court.

Trespass for wrongfully taking and selling the plaintiff’s goods on a landlord’s warrant. The case came up on error at October Term, 1856, and was then decided, and the only point now needing to be reported arises out of the following facts. The defendant leased to the plaintiff, for a term of years, a dairy farm, with its stock of cattle and utensils, at an annual rent of $495, and there being arrears due thereon, he distrained for the same, and thus made his money.

) Assumpsit. The only question raised on error was upon a reserved point, which is clearly and fully stated in the opinion of Judge Williams, of the District Court, which is as follows :— “ This is an action to recover damages for the breach of a parol contract between the plaintiff and defendant’s intestate, by which the latter, in consideration of an annual rent of $20 or $25, agreed to renew, for a period of five years from the 1st of April 1851, the lease of certain…

<p>An instrument in the following words, “ I do hereby will all I have to my beloved wife Jane, for her to have and hold for ever,” executed and attested according to the Act of 1833, is sufficient to pass the entire real and personal estate of the testator, to the devisee.</p> <p>The execution of a deed subsequent to the date of the will, by which the testator conveyed a portion of his real and personal estate, to a trustee for the use of his wife, would not operate as a revocation of the will.</p> <p>Evidence, that a testator who had given his will into the possession of his wife, had afterwards frequently made ineffectual searches for it, with a view of destroying it, and that the wife, the sole devisee therein, brought forward a paper alleging it to be his will, and in his presence burnt it, which he immediately declared to be right, will not amount to a revocation of the will.</p> <p>' To make a cancellation, burning, or obliteration of a will efficacious as a revocation, it must be done by the express direction of the testator, and his subsequent ratification would not be equivalent to a previous command,</p> <p>Whether a will duly executed, and which the testator was prevented from revoking by the fraud of a devisee, could be regarded as revoked, so far as the party to the fraud was concerned — dubitatur—Per Knox, J.</p> <p>A will executed under all the solemnities and formalities required by the statute, cannot be set aside by the declarations of the devisee, testified to by persons interested in the destruction of the will.</p>

<p>Beal estate in Pennsylvania, is held subject to the right of eminent domain possessed by the Commonwealth, and a purchaser always takes his title subject to that right.</p> <p>A vendee cannot maintain an action of covenant upon a general warranty in his deed, against his vendor, in consequence of the exercise of such right by the Commonwealth, in appropriating a part of the lands to public use. Patterson v. Arthurs, 9 Waits 152, and Dobbins v. Brown, 2 Jones 75.</p> <p>An Act of Assembly authorizing the opening of a street, and the passage of an ordinance by the councils of the city of Pittsburgh directing it to be laid out, and a survey made by the proper officer and filed before the conveyance, are notice to a purchaser of the existence of the right of way over the land.</p> <p>The absolute ownership of land adjoining a navigable stream, extends only to ordinary high water mark; below that, the ownership of the soil will not authorize such use of it, as will interfere with the use of the stream as a highway, or cause it to encroach upon other riparian owners.</p>

<p>Appeal from the Orphans’ Court of Fayette county.</p> <p>On the 31st August 1840, Ayres Lynn made his last will and testament, in writing, which was proved the 3d December of the same year, and in which he bequeaths all his personal estate, after payment of debts, to his wife Charlotte Lynn, and adds : “ I also give and bequeath unto my wife Charlotte above named, all the profits and proceeds that may arise from all and every part of my real estate, during the term of her natural life.” He also directed that, after the death of his wife, his real estate should be sold by his executors, and the proceeds divided among his children, deducting certain sums advanced by him to several of them. He appointed his son Isaac Lynn and John H. Tarr, executors, who accepted the trust, and proceeded to administer the personal assets. The widow continued to reside upon the farm until 1845, Isaac Lynn acting as her agent and manager, when she removed with her family to Union Town. Isaac Lynn, the executor, rented the farm from the widow, and continued in possession of it as her tenant till the spring of 1850, when she returned to the farm, and resided with her son, Andrew Lynn, upon it, they carrying on the farming operations together until 1853. At that time she rented one-half of the farm to Andrew, at $170 per year, and the other part was occupied by Isaac, but upon what terms does not appear in the testimony or report of the auditor. Charlotte Lynn, the widow, died intestate on the 6th January 1855, in the state of Illinois, at the residence of another son.</p> <p>John H. Tarr, one of the executors, in 1851, removed to Knox county, Ohio, and has continued to reside there ever since.</p> <p>During the time that Isaac Lynn occupied the real estate under his mother, he sold licenses to various persons to dig coal and limestone, and to cut timber on the premises, amounting, according to the estimate of the auditor, to $212.87. These were sold principally to persons residing in the neighbourhood, and were for the most part paid for in necessaries furnished to the family.</p> <p>After the death of the widow, the executors sold the real estate, and Isaac Lynn filed his account, charging himself with the proceeds received by him, and interest, amounting to $15,048.33, and praying credit for various items of expense, incurred in making the sale, &c. And also 5 per cent, on the amount as commissioner of the executors, amounting to $752.41. The conveyances of the real estate were made to the purchasers on the 1st April 1856; the first payment of one-third of the purchase-money made to the executor being $4735.33. This amount, or the greater part of it, was paid over to legatees, in June, August, and November 1856, and no interest was charged upon it in the account, as filed to December Term 1856.</p> <p>To this account the legatees filed exceptions, alleging that the executor should have charged himself with the whole amount of the proceeds of the sale of the real estate, as the other executor had become a resident of another state. That he had not charged himself with the timber, limestone, and coal taken from the real estate since the death of the testator. To various items of credit, and especially the commission of the executors. And also that the accountant should have charged himself with interest on the first payment, from 1st April 1856.</p> <p>The account and exceptions were referred to E. P. Oliphant, Esquire, as an auditor. He restated the account, charging the executor with the sum $212.37, for timber, coal and limestone taken from the farm during the life of the widow. He also struck out two small items of credit for which there appeared to be no vouchers; refused to charge the accountant with interest on the first payment; or to abate the commissions claimed.</p> <p>To this report exceptions were filed by both parties; and the court below (Gilmore, P. J.) directed the account to be reformed, by reducing the commission of the executors to 4 per cent., and by charging interest for 4 months on first payment, amounting to $94; and with such alterations confirmed the report. And from this decree Isaac Lynn the executor appealed.</p>

William W. Fearns, being the owner of a large real estate, and possessed of valuable personal property in the city of Pittsburgh, on the 10th day of January 1849, made his last will and testament in writing which, after his death, on the 13th of March 1849, was duly proved, and letters testamentary issued to Samuel Eobinson, one of the executors appointed in the will. The will contained sixteen clauses, of which the following is a synopsis:— First.

<p>Appeal from the Orphans’ Court of Somerset county.</p> <p>On the 27th day of January 1837, Robert McClintock made his last will and testament, in which, after making certain specific bequests of personal property to certain of his children named, for the purpose of equalizing them, the will proceeded:—</p> <p>“ I give and bequeath to my daughter Sally, intermarried with Laughlin McNeill, the sum of eight hundred dollars. Also, I give and bequeath to my daughter Polly, intermarried with James Silbaugh, the sum of eight hundred dollars. Also, I give and bequeath to my daughter Betsy, intermarried to Jonas Marker, the sum of seven hundred dollars. Also, I give and bequeath to my daughter Abigail, intermarried with Darick Burd, the sum of seven hundred dollars ; the last four legacies to be paid as soon as funds can be raised by the executors, and can be conveniently spared for that purpose. I also give and bequeath to my daughter Ellen the sum of eight hundred dollars, to be paid her by my executors when she arrives at the age of twenty-one years. I also give and bequeath to my daughter Margaret the sum of eight hundred dollars, to be paid her by my executors when she arrives at the age of twenty-one years. I also give and bequeath to my grandson William Jackson McClintock, son of my daughter Abigail, one hundred dollars, to be paid him on his arrival at the age of twenty-one years, by my executors. I also give and bequeath to my granddaughter Joanna Hinebaugh, daughter of my daughter Betsy, now intermarried with Jonas Marker, the sum of one hundred dollars, to be paid her by my executors on her arriving at the age of twenty-one years.”</p> <p>His real estate lie devised to his sons, as follows:—</p> <p>“And as to my sons, John, William, Alexander, and Mitchell, it is my will that they shall have equal shares, the one with the other, after paying the legacies aforesaid; and for this purpose I make the following valuation and disposition of the residue of my real estate, to wit: — I devise unto my son John and his heirs for ever, the plantation and tract of land on which said John now resides, in Addison township, called the Green Place; together with a tract purchased by me from Frederick Augustine, adjoining said Green tract; together with another tract of thirty-three acres and twenty-four perches, adjoining the Green tracts also, and purchased by me from Laughlin McNeill, all in Addison township; and also two tracts of land in Turkeyfoot township, across the river and opposite to said tracts before mentioned, on which Jacob Marker and Susan Nichalo now live, conveyed to me by Abraham Morrison, Esq.; all of which tracts I value at fifteen hundred dollars; upon condition that they pay to my executors, within four years after my decease, such sum as, from the valuation of said tracts of land, with due regard to proportion, it shall be necessary to raise out of said tracts in order to pay the legacies heretofore directed to be paid by my executors; and if he fail to pay such sum on demand, I hereby direct my executors to make sale of so much of said lands as may be necessary to raise the just proportion of said fund, and make a sufficient conveyance for the same to the purchaser. I also give and devise to my son William McOlintock, the farm on which he now lives in Turkeyfoot township, called the Hartzell Tract, in fee simple; and also the tract adjoining that called the Mowry Tract, in fee simple; valued at eight hundred dollars; upon condition that he pay to my executors, within four years from my decease, such sum as, from the valuation aforesaid, shall be justly due, and necessary to be raised out of said lands to create the fund for the payment of the legacies aforesaid, otherwise my executors shall sell and convey such part as shall be necessary to raise said fund. I also give and devise unto my son Alexander, the Home Place on which I now reside, at the decease or marriage of my wife Rachel, in fee simple; and also the tract adjoining said place, purchased from James Campbell at her death in fee simple; upon condition that he pay to my executors within four years after the decease or marriage of my said wife, such sum as from the valuation, which is fifteen hundred dollars, shall be justly due and necessary to be raised out of said tract to pay due proportion of the legacies aforesaid. I also give and devise to my son Mitchell, the tract of land on which my brother William Mc-Clintock, lately lived in Addison township, purchased by me of Charles Ogle and Samuel G. Bailey in fee simple; on condition that he pay to my executors within- four years after my death, such sum as from the valuation of said land — which is also fifteen hundred dollars — shall be proportionably due and necessary to be raised out of said land to pay the legacies aforesaid.”</p> <p>He appointed Rachel McClintock executrix; his son Alexander, Bernard Connelly, .Jr., and Henry L. Holbrook, executors of this will, and died about the 1st March following. The will was proved on the 28th of the same month, and letters testamentary issued to the persons named as executrix and executors; except Bernard Connelly, who renounced.</p> <p>On the 1st of November 1841, the executors filed an account, showing a balance in their hands of $1792.15, which was. duly confirmed. At the January court 1842, Henry L. Holbrook, on his own petition, representing that there was no money or property belonging to the estate of the testator in his hands, was discharged. The other executors were shortly after dismissed by the court, at the instance of one of the legatees, upon the allegation that they were wasting and mismanaging the estate, and letters of administration, with the will annexed, were issued to John Hanna, Esq.</p> <p>The devisees entered into possession of the several tracts of-land devised to them, and during the years 1841, 1842, and 1843, judgments were recovered against them respectively. Upon which their lands were severally seized and sold by the sheriff, and realized the sum of $2844.46, besides costs.</p> <p>The money was brought into court for distribution, and was. claimed by the creditors and legatees of Robert McClintock, deceased. Of the amount, $484.77 were applied to debts and expenses of the estate of testator, and the balance of $2359.68 was distributed among the legatees as follows:—</p> <p>Sally McClintock, intermarried with Laughlin McNeill, $428.20</p> <p>Polly McClintock, intermarried with James Silbaugh, 387.20</p> <p>Betsy McClintock, intermarried with Jonas Marker, 259.67</p> <p>Abigail McClintock, intermarried with Derick Burd, 374.67 Ellen McClintock, intermarried with Perry Mitchell, 428.20 Margaret McClintock 428.20</p> <p>William J. McClintock 53.54f</p> <p>Total, $2359.68|-</p> <p>The balance of the legacies remained unpaid, and the amount in the hands of the executors, on the account filed in 1841, was wasted by them, and no part of it was applied to the debts and legacies.</p> <p>On the 2d February 1857, John Hanna, administrator with the will annexed of Robert McClintock, deceased, presented his petition to the Orphans’ Court of Somerset county, setting forth the bequests and devises of the will, the non-payment of the legacies, and praying for an order to sell the lands for the payment of the same. The court thereupon granted a citation on all parties interested to appear and answer.</p> <p>On the 24th February 1857, the answers respectively of Daniel Weyand, Henry Glotfeltz, and Henry Younkin, parties claiming under the sheriff’s vendees, were filed, denying the liability of the lands in their hands to be sold for the payment of the said legacies, and alleging that they had been discharged therefrom by the sheriff’s sales, under which they claim; and that the legatees having severally received their proportion of the proceeds of the sheriff’s sales, were thereby estopped from resorting to the same lands again for any balance that might remain unpaid.</p> <p>The court appointed an auditor, who reported the facts as substantially herein set forth. The court thereupon dismissed the petition. And from this decree, Hanna, the administrator with the will annexed, appealed.</p>

This was an action of ejectment brought by John Gr. Beaver against Daniel B. Hamm and James Fox, for a tract of land in Clarion county, containing 255 acres and 73 perches. Beaver, by an article of agreement, dated 23d February 1850, sold the premises in dispute to Fox, one of the defendants, at the sum of $7 per acre, $400 to be paid in hand, and the balance in four equal annual instalments. A warranty deed was to be made by Beaver on the payment of the last instalment.

On the 19th day of April 1866, Joseph S. Morrison, administrator of David Wilson, deceased, presented his petition to the court, setting forth that the personal estate was insufficient for the payment of the debts of the decedent, &c., and praying the court for an order to sell a certain tract of four and a half acres of land, and twenty-one acres of coal under land adjacent thereto.

This was an action of slander, by Peter Boyles and Sarah C., his wife, against John Elliott. A narr. was filed, in which it was alleged that Elliott had charged that a man by the name of Cramer had had criminal intercourse with Mrs. Boyles, before her marriage with Boyles.

Error, to the District Court of Philadelphia.* This was a municipal claim filed by The Commissioners and Inhabitants of the Incorporated District of the Northern Liberties, on the 19th March 1842, against Peter P. Nonater, owner or reputed owner, &c., for $808.58; for pavement and curbstone laid in front of a lot of ground, on the east side of Fourth street, 101 feet from Poplar street, on the 20th July 1828, with interest and commissions thereon.

Covenant, by Benjamin Stiles against Thomas O. Mangle, for arrears of a perpetual rent of $60, reserved in the conveyance of a lot of ground in Philadelphia, by Stiles to Mangle. Thomas J. Martin was admitted to defend as terre-tenant, and pleaded payment. The defence was grounded on the following facts. The lot was vacant at the time of the conveyance, and, therefore, furnished no adequate security for the payment of the rent.

Certiitoate from tbe court of Nisi Prius. Assumpsit on the common money counts; and the case turned on the plea of non assumpsit.

Error, to the Common Pleas of Delaware county. Amicable action of ejectment.

<p>Error to the Common Pleas of Montgomery county.</p> <p>Assumpsit, by Reese against The Bank, to recover damages for refusing to allow him, as a stockholder, to share in the distribution of a portion of the capital stock which remained untakén at the time of the incorporation of the bank. The bank was incorporated under the Act of Assembly of 21st March 1814, P. L. 154, and continued in operation by virtue of subsequent iaws, 22d March 1824, P.L. 5; 7th April 1832, P. L. 360; 18th April 1848, P. L. 318; 6th April 1849, P. L. 433. It was authorized to have a capital stock of eight thousand shares of $50 each; but up to the 2d February 1850, it had, only seven thousand one hundred and one shares actually taken. On that day, a resolution was adopted by the board of directors, to fill up the authorized capital, and giving liberty to all stockholders who had paid up their instalments in full, to subscribe for the new stock, from the 13th to the 31st of May following, in amounts proportioned to the number of shares held by them respectively; and notice of this was sent to those who were not in arrear. On the 24th May, the plaintiff went to the bank, paid up his arrears, and demanded permission to subscribe for his proportion of the new stock, and it was refused him. The stock then bore a premium of $5 a share, and for this the plaintiff sues. The court instructed the jury that the plaintiff had no cause of action.</p> <p>The cause came up on error in 1855, and was then decided, but omitted in the reports. It came up in another form afterwards, and is reported in 2 Oasey 143.</p>

Assumpsit. The plaintiff below was G. D. Coleman, and he filed the following, as copies of the instruments on which his suit was brought, and in due course asked for judgment, for want of an affidavit of defence:— Office of the Montour Iron Company, No. 26. Philadelphia, August 1, 1854.

<p>On the trial of an issue, in a mandamus to restore the member of a beneficial society, who had been illegally expelled, the relator, being entitled to recover damages, as in an action for a false return to the writ, may give evidence, that, since his expulsion, he has been in a condition which entitled him to the aid of the society, under its constitution and by-laws.</p> <p>On the trial of such issue, the defendants cannot read in evidence their sworn answer.</p> <p>A member of the society is incompetent as a witness for the defendants: 1. Because the fund, to which the members would have to look for aid, in case of sickness, would be diminished by the relator’s recovery. 2. Because, it seems, the members may be compelled in equity to raise a fund for the payment of the relator’s damages.</p>

<p>Appeal from the Orphans’ Court of Philadelphia.*</p> <p>This was an appeal by Sarah Kneass, James Magee, Horn R. Kneass, and Napoleon B. Kneass, surviving executors of Christian Kneass, deceased, from the decree of the Orphans’ Court, dismissing their petition for the confirmation of the sale of certain real estate of their testator.</p> <p>Christian Kneass, the testator, by his last will, admitted to probate on the 4th February 1845, bequeathed to his wife, Sarah Kneass, all his personal estate, together with the rents and profits of his real estate, during life; she to maintain, educate, and clothe his minor children during their minority, without charging them with the same. And after her decease, the testator directed his estate, real and personal, to be divided into eight equal parts, and devised and bequeathed one eighth part thereof to each of his children or their heirs; and he appointed his widow, three of his sons, and a son-in-law, to be his executors.</p> <p>On the 29th March 1849, an Act of Assembly (Pamph. L. 277) was passed, authorizing the executors of ^ Christian Kneass, deceased, to sell a certain portion of the real-estate of the testator, and to execute deeds of conveyance for the same, which, it was provided, should vest in the purchasers all the estate, right, title, and interest in law or equity, which the said Christian Kneass, at and immediately before his death, had and held- in the same, as fully and completely, and with like effect, as if such conveyances had been executed by the said Christian Kneass in his lifetime; the proceeds to be invested as provided in the will with respect to the personal estate: provided, that before selling such real estate, the executors should give bond to the Commonwealth, for the use of the parties interested, with security to be approved by the Orphans’ Court, conditioned for the faithful application of the proceeds; and provided, that before the execution of any deeds for the same, the said sales should he approved by the said, court.</p> <p>On the 19th November 1856, the surviving executors presented a petition to the Orphans’ Court, setting forth the terms of the will and of the Act of Assembly; and also that at the time of the passage of the said act, two of the children were minors, but had since attained their majority; that two of the children had since died, one intestate, unmarried, and without issue, the other, leaving a widow and one child, a minor; and that the executors, by virtue of the authority conferred upon them by the said act, had sold the real estate therein described to Samuel Hood, Esq., for $10,250, payable as therein set forth; and praying the court to confirm the sale, upon their giving bond as provided in the said act.</p> <p>The purchaser filed an answer admitting the facts stated in the petition, and alleging his readiness to do all things incumbent on him under the agreement for the sale of the premises; but that he was advised the petitioners could not, either by virtue of the will or of the Act of Assembly, give him a good and valid title to the property.</p> <p>The court below dismissed the petition; whereupon the executors took this appeal from the decree.</p>

This was an issue devisavü vel non, to try the validity of a paper writing offered for probate as the last will and testament of Henry Transue, deceased; wherein Peter Brown,-one of the executors named in the alleged will, and Alexander Jensczewski and Eietta his wife, who was named as a legatee, were plaintiffs, and Charles Transue, a son of the decedent, also named as an executor, but to whom letters of administration had been granted, was the defendant.

<p>A testator devised land to his son J., “ to hold the same to him during his natural life, and, after his decease, to his children lawfully begotten, share and share alike:” Held, that J. took an estate for life, with a vested remainder in fee to his children in being at the death of the testator, which opened to let in after-born children.</p> <p>Miller v. Lynn, 7 Barr 443, affirmed.</p> <p>An introductory clause of the will, expressing the intention of the testator to dispose of his whole estate, is sufficient, in such case, to give the remainder-men a fee.</p> <p>Such a 'devise is not within the rule in Shelly’s Case. Where the word “ children” is used to designate the objects of the testator’s bounty, and some of them are in esse at the date of the will, and also at the time it takes effect, the rule does not apply.</p> <p>Where the intention to give but a life estate is manifest, encumbrances charged upon the land devised, will not enlarge it into a fee.</p> <p>The Statute of Limitations does not run against parties in remainder, until after the death of tenant for life, who has aliened in fee.</p>

This was an action of assumpsit by Benjamin T. Case against Samuel W. Morris, to recover the amount of defendant’s check on the Towanda Bank, of which the following is a copy:— $741.82. Wellsboro,’ Dec. 5, ’41. Cashier of the Towanda Bank, pay to the order of Mr. Jos. D. Drinker, seven hundred and forty-one dollars jryo- Samuel W. Morris. Endorsed — Pay to the order of Henry Drinker. Joseph D. Drinker. Henry Drinker.

This was an action of assumpsit by Frederick Klett & Co., against William R. Claridge and James W. Rudolph, late trading as Claridge & Rudolph, on a promissory note, of which the following is a copy:— “ $1000. Philadelphia, September 2d, 1848. “ One year after date, we promise to pay to the order of Edwin Young, one thousand dollars, without defalcation, value received. “ Claridge & Rudolpii.

Error, to the Common Pleas of Lehigh county. This was an action of covenant by Martin Kemmerer against Thomas B. Wilson, on a contract of guarantee, under seal, dated the 11th April 1843, hut executed on the 11th April 1842; whereby the defendant guarantied to the plaintiff the payment of $1000, with interest, loaned by him to the Northampton Bank, and to be repaid in one year, with interest.

This was a scire facias by Fithian, Jones & Co. against The New York and Erie Railroad Company, garnishees in an attachment execution against Cyprian Innman. By Act 16th February 1841, Pamph.

<p>The title of a purchaser at sheriff’s sale, under proceedings on a mortgage, relates hack to the date of the mortgage.</p> <p>If a plaintiff in ejectment claims title by twenty-one years’ adverse possession, he must prove every element necessary to constitute a title under the Statute of Limitations; otherwise, it is the duty of the court to instruct the jury, that there is not sufficient evidence to entitle him to recover.</p>

<p>So long as anything remains to be done between the vendor and vendee, for the purpose of ascertaining the amount or price of the article sold, the property remains in the vendor.</p> <p>The defendants agreed to sell a quantity of lumber to the plaintiffs, and signed the following memorandum — “ Sold Messrs. R. S., and O. L. N., load of Pine creek lumber, within the neighbourhood of five thousand feet of plank, at $15.50 and expenses, taking a note at six months with interest.” Reid, that the property in the lumber did not pass to the vendees; and that, on a refusal to deliver the lumber, in pursuance of the contract, trover would not lie.</p>

<p>Certificate from the Court of Nisi Prius.</p> <p>This was an ejectment brought by George Ludwick against Adam Reitenbaugh and James Torbut, for a tract of about fifteen acres of land in the Twenty-fourth ward of the city of Philadelphia. The plaintiff had a regular paper title to the land ; the defendant, Adam Reitenbaugh, claimed under the plaintiff by deed of the 12th April 1844. James Torbut was the tenant of Reitenbaugh.</p> <p>It appeared on the trial, that in 1844, the plaintiff, being the owner of the land in question, and being embarrassed in his circumstances, applied to Thomas S. Cavender, a scrivener, for a loan of $510,000 upon the land in controversy. The money was procured, but was found to be insufficient to pay off the encumbrances against the plaintiff, unless Reitenbaugh (who was a near relative) would release certain judgments which he held against him, so as to let in the mortgage as the first encumbrance. This the defendant agreed to do, provided the property was conveyed to him, in order to make him secure.</p> <p>Accordingly, Ludwick and wife conveyed the property to Reitenbaugh, by deed dated the 12th April 1844; and, on the same day, Reitenbaugh mortgaged the premises to Smith & Parke for $10,000, and Ludwick and Reitenbaugh gave their joint bond to the mortgagees for the amount of the loan.</p> <p>After this, a settlement took place between the parties, by which Ludivick was found to be indebted to Reitenbaugh in the sum of $18,043.12, including the $10,000 mortgage. On the 4th May 1844, a mortgage was given by Ludwick and wife to Reitenbaugh on certain property in New Jersey, for $6000, which has since been paid; thus reducing the balance due Reitenbaugh to $12,043.12, including the mortgage.</p> <p>On the 17th May 1844, Reitenbaugh executed a deed of defeasance to the plaintiff, bearing even date with the conveyance to him. It recited the conveyance of the premises by Ludwick and wife to Reitenbaugh, by the deed of April 12th 1844, and provided, that if Ludwick, at any time within six years from the date thereof, should pay to Reitenbaugh the sum of $12,050, and all expenses for taxes and repairs of the premises, first deducting the income and profits which Reitenbaugh should derive from the premises, then Reitenbaugh should reconvey the premises to Ludwick clear of encumbrance.</p> <p>In October 1844, Ludwick’s wife died, owning in her own right 120 shares of stock of the Bank of Delaware County. Ludwick administered to her estate, and on the 24th November 1844, transferred these 120 shares of stock to Reitenbaugh.</p> <p>From the 1st April 1844, to the 1st April 1850, James T. Afflick was tenant of the premises. During this period, he paid the interest on the $10,000 mortgage to Parke & Smith; the interest on $8050 to Reitenbaugh ; the taxes and repairs on the premises; and the balance of the annual rent to Ludwick. This sum of $8050 was made up by the $2050 in the defeasance, above the $10,000 mortgage, and the $6000 mortgage on the New Jersey property; and during the same period, Reitenbaugh paid to Ludwick the dividends declared upon the bank stock.</p> <p>In 1850, the premises were levied upon by the sheriff, upon an execution against Ludwick; whereupon Reitenbaugh called on Thomas Williamson, a scrivener, and the 'agent of Parke & Smith, the mortgagees, who then for the first time became aware of the existence of the defeasance. On hearing of it, he became alarmed for the safety of the mortgage; and informed the parties that unless it was got rid of, he would advise his principals to proceed and collect the mortgage.</p> <p>In consequence of this advice, the following release was prepared and executed by Ludwick:—</p> <p>“ Know all men by these presents, that I, George Ludwick, for and in consideration of the sum of one thousand fifty dollars lawful money to me paid by Adam Reitenbaugh, before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, have remised, released, and for ever quitted claim and confirmed, and hereby do remise, release, and for ever quit claim and confirm unto the said Adam Reitenbaugh, and to his heirs and assigns ; all my estate, right, title, interest, property, equity of redemption, claim and demand whatsoever, either at law or equity, of, in, to, or out of all that and those the messuage or tenement, stables, outbuildings, and tracts or pieces of land in the annexed indenture or deed of covenants, and the therein recited indenture (which is recorded in deed-book R. L. LL, No. 17, page 584), respectively mentioned and described; together with all the said and singular the appurtenances, to hold the same to him, the said Adam Reitenbaugh, his heirs and assigns for ever. In witness whereof, I have hereunto set my hand and seal, this first day of February, in the year of our Lord one thousand eight hundred and fifty, (1850).”</p> <p>How the consideration of $1050 mentioned in this release was made up, did not very clearly appear. It was paid by Reitenbaugh, and part of it appropriated to the payment of the execution which had been levied on the property. Evidence was admitted, notwithstanding an objection on the part of the defendant, of the value of the property at the time of the execution of the release, which was estimated hy the witnesses at from $30,000 to $40,000, also of declarations by the defendant as to the ownership of the property; and- that plaintiff had paid for lumber used on it after the release.</p> <p>The court (Woodward, J.) charged the jury as follows :—</p> <p>“ If the deed of 12th April 1844, and the defeasance of same date, had been executed and delivered at the same time, I would say, as a conclusion of law, that they constituted an unrecorded mortgage; but as the proof is clear, that more than a month intervened between the execution of these instruments, it is for the jury to inquire whether the parties meant to make a sale or only a security for money. The testimony of Mr. Cavender is very clear on this point, and if the jury believe it, I should suppose they would have no difficulty in deciding that the parties were treating for a security, and not for a sale and purchase.</p> <p>“ But if the instruments áre to be considered and treated as a mortgage, then the question is, what was the transaction of 1st February 1850 ?</p> <p>“ A mortgagor may sell his equity of redemption, which is an estate in him, and he may sell it to his mortgagee as well as any one else. He must be competent to contract, and there must be no fraud practised on him, or undue advantage taken of him. And if Ludwick did indeed release his equity of redemption, in pursuance of a fair understanding and bargain (of which a valuable consideration and the written instrument are strong evidences), the effect is the same as if it were not at fii-st a mortgage, but a conditional sale; that is, the title would be absolutely in Reitenbaugh, and there would be no liability to account for profits.</p> <p>“ But if, on the other hand, this arrangement vras a mere getting the defeasance out of the way of Parke & Smith, and not in-, tended to change the relation between the parties themselves, Ludwick and Reitenbaugh; if, in a word, it was anything but a fair sale of the equity of redemption, then the relation of mortgagor and mortgagee still subsisted, and this is an ejectment by a mortgagor out of possession, against his mortgagee in possession.</p> <p>“ On this point the evidence of Thomas Williamson must be carefully considered. (The court here read the evidence in full.)</p> <p>“ Although Mr. Williamson disclaims it as his sole motive for advising the release, yet it is difficult to conceive what else he could have had in view, than to secure his clients, Parke & Smith. It was natural that he should be concerned for their safety, when he heard of the defeasance, but I think he was unnecessarily alarmed. I do not agree in opinion with him, that this unrecorded defeasance could endanger their mortgage. It is agreed on the part of the plaintiff, that they, Parke & Smith, were secure, because they would come in as first mortgagees; on the part of the defendant it is insisted that if Reitenbaugh was a mere mortgagee, his mortgage to Parke & Smith was no more than a personal obligation; but it seems to me that the law of estoppel is the true ground on which to put the case. Ludwiek conveyed to Reitenbaugh for the purpose of raising money for himself (if the jury adopt this view), he then stood by and saw Reitenbaugh mortgage the land to Parke & Smith — nay, he joined in the bond W'hich accompanied the mortgage, and he took the money that was loaned on the faith of it. Now, all this would for ever estop him, shut his mouth, from denying that Reitenbaugh had good right to mortgage the premises to Parke & Smith.</p> <p>“ But if, from all the evidence, the jury should believe the parties did not intend a change of their relations, and that they were from the first, and still are, mortgagor and mortgagee, then the third and final question is, what is the state of accounts between them ?</p> <p>“ The defendant, as mortgagor in possession from 1850, was bound to account for rents and profits. Plaintiff’s counsel have proved a demand on him to account, but he has rendered none.</p> <p>“ Under these circumstances, the jury should make every presumption against him that the evidence will warrant. It is said he should be charged with the bank stock at its highest rate — the utmost he could at any time have got for it. This is the rule in regard to a trustee who will not account. . So as to the profits of the estate; w’hat time the defendant had it in possession; the jury should charge him with the most which, under the evidence, they believe he might have made out of it. Doubts which he might have removed are to be thrown against him.”</p> <p>The jury returned into court with a sealed verdict, having separated before presenting it; after an examination, the judge said it was not in form, and recommitted it to them. To this the defendant excepted.</p> <p>The jury found the following verdict, upon which judgment was entered:—</p> <p>“We, the jurors, do find a verdict in favour of the plaintiff for the premises claimed, subject to the payment of a certain mortgage thereon to Parke & Smith for if10,000; said mortgage to be paid by plaintiff before delivery to him of said premises, or said defendant to be released from any and all responsibility for or on account of the said mortgage ; and that said plaintiff be allowed until April 1st, a. D. 1858, to pay said mortgage, or to release defendant from his (defendant’s) responsibility under the same.</p> <p>“ We do further declare, that said defendant shall, upon the payment of said mortgage, or release of him, the said defendant, by said plaintiff, deliver possession of said premises, free and clear of all encumbrance, except the above referred to mortgage.”</p> <p>The defendant thereupon certified the cause to this court, and assigned the following specifications of error:—</p> <p>1. The learned judge erred in admitting evidence of the opinions of witnesses as to the value of the property in dispute in the year 1850. 2. The learned judge erred in admitting evidence of conversations with defendant “ on the subject of the ownership of the property, and on the subject of its being given up by him to plaintiff.” 3. The learned judge erred in allowing the plaintiff to prove that he had paid for lumber after the release. 5. The learned judge erred in charging the jury, “it is for the jury to say whether the parties meant to make a sale, or only a security for money. The testimony of Mr. Cavender is very clear on this point, and, if the jury believe it, I should suppose they would have no difficulty in deciding that the parties were treating for a security, and not for a sale or purchase.” 6. The learned judge erred in charging the jury as to the release of February 1,1850: “ That if the arrangement was a mere getting the defeasance out of the way of Parke & Smith, and not intended to change the relation between the parties themselves; if, in a word, it was anything but a fair sale of the equity of redemption, then the relation of mortgagor and mortgagee still subsisted.” 7. The learned judge erred in charging the jury, “that under the circumstances, the jury should make every presumption against him (Reitenbaugh) that the evidence will warrant.” 8. The learned judge erred in charging the jury, “that he (Reitenbaugh) should be charged with the bank stock at its highest rate.” 12. The learned judge erred in permitting the jury to retire and deliberate on the material question of the account to be taken between the parties, after' they had sealed their verdict and separated. 13. The court erred in entering judgment on the verdict without any compliance by Ludwick with the conditions of the verdict.</p>

<p>The assignment of a mortgage, duly executed and recorded, passes the legal title, and no suit can subsequently be maintained thereon, in the name of the assignor, for the use of parties claiming an equitable interest in the mortgage debt.</p> <p>The bond fide purchaser of a mortgage for a valuable consideration, tabes it discharged of all secret equities, of which he had no notice.</p> <p>After the lapse of twenty years, the acknowledgment, in the assignment, of the payment of the consideration, is sufficient evidence of the payment of the purchase-money.</p>

<p>Error to the Common Pleas of Bucks county.</p> <p>This was an amicable ejectment by George R., Thomas C., Howard, and Joseph Dubs, by their guardian The Pennsylvania Company for Insurances on Lives and Granting Annuities, against Dr. Samuel R. Dubs, wherein the parties agreed upon a case stated, to be considered as a special verdict and subject to a writ of error. The material facts are recited in the opinion of the court below, which was delivered by</p> <p>Smyser, P. J. — “ The plaintiffs are the children and heirs at law of Adelaide Dubs (late Adelaide Ross), a daughter of the Hon. John Ross, deceased. The defendant is. her surviving husband. The land in controversy is that mentioned in the following extract from Judge Ross’s will, and which the defendant claims to hold as tenant by the curtesy.</p> <p>“ ‘ I give to my sons Thomas and Jenkins, my plantation called the Hare Place, with two detached pieces of 15 and 10 acres of woodland, and also 7 acres of woodland bought of the executors of Judge Hutchinson, in trust fer my daughter Adelaide and her heirs. I also give the same persons $3000, which will be due on the death of her aunt; and $4000 to be taken from my bank stock or bonds to the same persons, in trust as to the interest for my said daughter Adelaide, and as to the principal for her heirs. And my will is, that the said trustees and their successors shall hold the said lands, and the said moneys, securities or stocks, in trust, as to the yearly income or produce, in trust for the sole and separate use of my said daughter Adelaide, without and free from the control of any husband to whom she may be married, and without any power of her, or of her and her husband, aliening or disposing the estate or principal of the money by deed, mortgage, or any other instrument or contrivance. The said trustees to give her the annual produce yearly or at shorter periods, as may be necessary, but not in anticipation — her receipt to be a good discharge ánd acquittance.’</p> <p>“The testator died in 1834. At that time Adelaide Ross was of age and as yet unmarried. The will was not made in. contemplation of any particular marriage. She married Dr. Dubs, the defendant, in 1836, and died in 1851, leaving her husband the defendant, and the plaintiffs her children, surviving her. The defendant is in possession, and claims his curtesy in the lands so devised. Whether he is entitled thereto is the only question involved.</p> <p>“ The solution of this question depends on the answer to another: was Adelaide Dubs in her lifetime, during her coverture, seised of an estate of inheritance, either equitable or legal, in the land ?</p> <p>“Were there nothing in this devise beyond the gift to trustees in trust for her and her heirs, this would be a use executed in her by the statute of 27th Henry VIII., and would vest in her the absolute legal estate in fee. Even if we regard the subsequent words of limitation as to the yearly income, as giving her only a life estate, with remainder to her heirs, the effect, by virtue of the rule in Shelly’s Case (which is a rule of property in Pennsylvania), would be the same.</p> <p>“ On a former occasion, in distributing the moneys and stock in the hands of the trustees, we regarded the word ‘heirs,’ in that connection, as a word of purchase; because, as to the personal bequests, the trust was expressly limited ‘ as to the interest, to my said daughter,’ whilst the principal was as expressly given to the heirs, as a new stock or class; and because, whether this word was regarded as one of limitation, or purchase, the husband’s interest, under our statute of distributions, would be the same, as far as the personalty was concerned; making it a matter of no practical moment in which light it was regarded.</p> <p>“ But such is not the case as to the realty; and I conceive this to be one of the cases in which, even had the testator’s intention been otherwise, without any other superadded words for its manifestation, the actual would have to yield to the legal intent: Auman v. Auman, 9 Harris 844.</p> <p>“ There is, however, a separate use in Adelaide Dubs, raised by this devise. The effect of this is next to be considered.</p> <p>“ Had she been a feme covert at the date of the will, or even at the time it took effect by the testator’s death, or had the provision been made and inserted in the will, in contemplation of marriage, it would have been enforced so long as the coverture continued; and, in the case as it stands, the statute of uses never, during her life, would have executed the estate in her, but the trust would have remained, leaving to her a purely equitable estate ; whilst it would be executed in the heirs, giving them the legal estate; the consequence would have been to prevent the two from uniting in her lifetime, because, during her life, they never were of the same quality. In such a case, I think it is clear, that there is no curtesy in the husband. All the cases, however, in which a trust for separate use has been maintained against the statute of uses, and even the more extended principle indicated by Lowrie, J., in Kuhn v. Newman, 2 Qasey 230, will be found, on examination, to be where there was coverture, either existing or contemplated, of the cestui que use, when the provision was made or took effect. The cases of Hearle v. Greenbank, 3 Aik. 716, Bennet v. Davis, 2 P. Wms. 316, Bigler «. Cloud, 2 Harris 363, Cochran v. O’llern, 4 W. ¿‘ S. 95, Stokes v. McKibbin, 1 Harris 267, are all of this class. But it seems to be well settled now by authority, that where there is a fee limited to the separate use of a feme covert, to the exclusion of the marital rights of the husband, such restraint ceases on her becoming discovert by his death; the trust ceases— the statute executes the estate in her; and she may alien or encumber it at pleasure; and a subsequent second marriage does not reimpose the restraint, or re-establish the trust: Smith v. Starr, 3 Wh. 62; Hamersley v. Smith, 4 Id. 126; Faries’ Appeal, 11 Harris 30; Jones v. Salter, 2Bus.¿¡■Myl. 208; Barton «.Briscoe, Jac. 603; Massey «. Parker, Myl. J- Keen 174; Miller «. Bingham, 1 Iredell Hq. 432.</p> <p>“ And that, even where the testator has endeavoured, in express terms, to extend the restraint to a second or any subsequent marriage, after discoverture, as to the period when she shall again become sole: Woodmeston «. Walker, 2 Bus. ¿‘Myl. 197; Jones v. Salter, Id. 208; Glyn «. Baster, 1 Young £ Jervis 329; Harrison «. Brolaskey, 8 Harris 299.</p> <p>“ And the same results follow where the cestui que trust is, as in this case,.a feme sole, and does not marry until after testator’s death. In such case, the estate vests absolutely, freed and for ever discharged from any restraint attempted to be imposed on mai’ital rights, or control, in the contingency of a future marriage; and the status thus acquired, is never afterwards changed by force of anything contained in the devise: Woodmeston v. Walker, 2 B. ¿f Myl. 197Brown v. Pocock, Id. 210, S. c. 5 Sim. 663; Kuhn v. Ñewman, 2 Casey 232.</p> <p>“ There is here, however, a clause against anticipation. Will that preserve the trust estate until the beneficiary marries, or revive it on her second marriage? That it will not,was, at one time, held, in Woodmeston v. Walker; also, Jones v. Salter, Brown v. Pocock, and Barton v. Briscoe, already cited; also, in Acton v. White, 1 Sim. $ Stu. 429.</p> <p>“In Jones v. Salter, it was held that a clause against anticipation will not prevent a feme covert from aliening on becoming discovert. Brown v. Pocock was a life interest in. a trust fund, given to a female infant, with a similar clause against anticipation; and it was held, that after her majority, and before marriage, she might, notwithstanding, assign her whole interest; on the ground, that a separate gift for the separate use of a single woman, without anticipation, will not bar her alienation, unless made with reference to an intended marriage.</p> <p>“ Did the law rest on these adjudications only, it would seem to be against the plaintiffs; but the English courts of equity, in later cases, have returned to what Chancellor Kent calls ‘ the older and juster doctrine,’ viz.: that a restraint against anticipation annexed to a separate use for a feme sole, even in the case of a trust in fee, will take effect on coverture, and reattach on a second marriage, although suspended and inoperative during the interim before marriage, or the interval between the first and second coverture: Tullet v. Armstrong, 1 Beavan 1, s. c. 4 Myl. C. 390; Scarborough v. Borman, Id. 34, s. c. 4 Myl. §■ C. 378; Clark v. Jaques, Id. 36; Nedby v. Nedby, 4 Myl. ¿- C. 367 ; Dixon v. Dixon, 1 Beavan 40.</p> <p>“ The effect of these cases may be thus stated — where property is given to the separate use of a feme sole, without the right of anticipation, she may nevertheless alien if she chooses, while she continues single, because the restraint is inconsistent with the gift or grant. Should she marry without alienation, or settlement, the restraint reattaches, and while under coverture, her rights, and those of her husband, in so far as they depend upon hers, will be restricted just as if she had been covert when the devise or gift took effect.</p> <p>“ On becoming discovert by her husband’s death, her power of alienation will again revive, and so revived, will continue again until her second marriage, when, if unexercised during the interval, it will again cease; if not, by tbe terms of tbe devise, confined and limited to her first marriage. See Williams on Real Property, 183-4 and notes; also, Williams on Personal Property, 304-5.</p> <p>“Nor do any of our Pennsylvania cases contradict this doctrine. I have carefully examined them, from Smith v. Starr down to Kuhn v. Newman, and find that in none of them was the restraint on anticipation found, nor do any of them refuse to it, where it is inserted, the humane and benevolent effect had in view by Lord Thurlow, when its introduction was first sanctioned by him in Miss Watson’s case.</p> <p>“ This doctrine harmonizes in spirit, also, with that laid down in Lancaster v. Dolan, 1 R. 247, by the late 'Ch. J. Gibson, and reiterated in Thomas v. Folwell, Dorrance v. Scott, Wallace v. Costen, and Rogers v. Smith; that the power of a feme covert in a trust for her separate use, is confined to what is expressly given, instead of being coextensive with what is not expressly restrained or denied. It squares with a chancellor’s conscience, which always impels him to give effect to a manifest intent, being legal, when no stern rule of law forbids it; and the plain intent here was to make Adelaide Ross and her heirs the beneficiaries, and the sole beneficiaries of the estate.</p> <p>“ I am of opinion, that on the testator’s daughter, Adelaide, intermarrying with the defendant, without exercising the right of alienation which belonged to her optionally while sole, the trust for separate use, with all its denial of absolute control, and restraint on alienation, encumbrance, or anticipation, was reimposed, or rather, to speak more correctly, never was divested or determined; that, these restraints and conditions being inconsistent with an estate of inheritance in the land, such estate never belonged to her during her coverture; and that, therefore, her husband is not entitled to the curtesy claimed.</p> <p>“He is not entitled thereto for another reason. The trust being as it were reimposed with all its incidents, the legal estate was, and remained, in the trustees during the rest of her life, she having a mere equitable estate, whilst by force of the statute, her heirs, on her death, would have the legal title cast on them, through an interest vesting in them under the will, during her lifetime. As, therefore, there never was, during coverture, a union of the legal and equitable titles, there is no curtesy in the surviving husband, as was decided in the case of Ash v. Ash, 8 Leg. Lnt. 54, s. c. 1 Phila. R. 176.</p> <p>“ A third reason is, that this trust is special, and as such, would not be executed by the statute so long as its special purposes required that it should be maintained. But the terms of the trust, especially the clause against anticipation, require its administration by the trustees, so long at least as Mrs. Dubs should live; and therefore, the use was never executed in her. Nor, if we regard this as a trust for the use of Mrs. Duhs, for life, remainder to her heirs in fee, will the rule in Shelly’s Case stand in the way of the plaintiffs; because, separate uses for married women, to the exclusion of their husbands, belong pre-eminently to the class of cases in which the legal will yield to the actual intent: Burchett v. Durdant, 2 Vent. 311; Luddington v. Kime, 1 Ld. Raymond 203; Doe v. Laming, 2 Burr. 1100; Perrin v. Blake, Hargrave's Law Tracts 429.</p> <p>“ Nor does the case of Auman v. Auman, 9 Harris 344, make against this view; for there, there was neither a trust nor a separate use.</p> <p>“ Whether the husband of a feme cestui que trust, could, under any circumstances, have curtesy in the use where it is not executed, might be questioned, on the authority of 1 Saunders on Uses and Trusts 66; where it is laid down that, prior to the statute of uses, there was no curtesy of a use; but I do not deem it material now to go into that.</p> <p>“ Judgment is entered on the case stated in favour of plaintiffs.”</p>

<p>Error, to the Common Pleas of Bradford county.</p> <p>This was an action of trover, by Horace Williston, Jr., against Edward Overton, for a steam-engine, boilers, and machinery of a steam saw-mill. The facts of the case are fully stated in the opinion of the court.</p> <p>The plaintiff below obtained a verdict and judgment for $2007.92, to reverse which the present writ of error was sued out.</p>

Appeal in Equity from the Court of Msi Hrius. This was a suit in equity, by Edward Waterman against Joseph Brown.

Ekr,or to the Common Pleas of Pike county. This was an ejectment by John Michael and others, the representatives of the children of William Brink by his first wife, against Laura C. Brink and others, the widow and children of the said William Brink, by his second marriage.

This was an ejectment by Samuel M. Fox and George Fox, administrators de bonis non, cum testamento annexo, of Samuel M. Fox, deceased, against Jeremiah Thompson, for a tract of land in the township of Gaines, containing 1002-acres, surveyed in pursuance of a warrant to Wilhelm Willink and others.

<p>In Equity. Motion for special injunction.*</p> <p>This was a bill in equity exhibited by The Western Saving Fund Society of Philadelphia and others, holders of certificates of loan of the Mayor, Aldermen, and Citizens of Philadelphia, commonly called “ City Gas Loans,” for and on behalf of themselves and all others, the holders of said certificates of loans, who should come in and contribute to the expenses of the suit, and Frederick Fraley and others, Trustees of the Philadelphia Gas Works, against the City of Philadelphia, and Robert T. Conrad, Mayor of the said city.</p> <p>The bill set forth, that on the 21st March 1835, the Mayor, Aldermen, and Citizens of Philadelphia, passed an ordinance for the purpose of procuring the erection of gas works within the said city. That provision was thereby made for receiving subscriptions to the stock of a company to be formed for the erection of the said gas works, to consist of 1000 shares of $100 each, with the power of increasing the amount thereof to 250 in addition, on the application of a majority of the stockholders, and with the consent of the Select and Common Councils. And there was reserved to the said city the right, at any time these councils might deem it expedient, to take possession of the works, and convert the stock into a loan of the corporation, redeemable in 20 years, and bearing an interest of 6 per cent.</p> <p>That it was further provided by said ordinance, that the Select and Common Councils should choose by ballot twelve citizens, to be denominated Trustees of the Philadelphia Gas Works, and divided into three classes, to serve respectively for one, two, and three years; and that annually thereafter, each of the councils respectively should elect two citizens to serve as trustees for the term of three years, in place of those whose terms of service should expire. And that it should be the duty of the said trustees to construct gas works and lay pipes for the distribution of gas; and they were thereby vested with the necessary powers for such purposes.</p> <p>That all the stock provided for by said ordinance, was subscribed for and taken; and the trustees commenced the erection of the works, and after expending the amount of such subscriptions, more money was found to be necessary to complete the same and put them in operation. Whereupon the additional 250 shares were duly authorized to be subscribed for; and the same were taken, and the money paid in and expended on the works.</p> <p>That the works were completed on the 8th February 1836, and had ever since been in successful operation; but that the increasing demand for gas, had rendered it necessary from time to time, to enlarge the same. And for that purpose, the City of Philadelphia, on the 22d December 1836, empowered the said trustees by ordinance to borrow the sum of $150,000, for which certificates of $100 and upwards should be issued to the holders; to be redeemable on the 1st January 1862, and to bear such rate of interest, not exceeding 6 per cent., as should be fixed by the trustees. That the faith of the city, and the buildings, apparatus, &c., of the said works, were thereby pledged for the payment of the said loans; and in order that provision might be made for the payment of the interest thereon, and of the principal when due, it was provided, that the said trustees should be authorized and required to set apart and reserve out of the moneys received from the manufacture and sale of gas, 8 per cent, per annum on the amount of the certificates issued by virtue of the. said ordinance, before any dividend should be made and distributed among the stockholders; to be applied first to the payment of interest on such loans, and the balance to be invested as a sinking fund for the redemption of the principal.</p> <p>That the stockholders assented to the provisions of this ordinance, and the said loan of $150,000 was thereupon contracted, and the proceeds applied to the enlargement and extension of the works. And that on the,8th February 1838, a similar ordinance was passed for a further loan of $200,000 on the same terms, which was duly contracted, and the proceeds applied to the like purposes.</p> <p>That on the 3d June 1841, a contract was entered into between ■ the city and the stockholders, whereby the latter agreed to receive, certificates of corporation loan bearing an interest of 6 per cent, for the amount of stock held by them,’and also a sum of $48,000 in 5 per cent, loan, in payment for their interest in the gas works, &c., which contract was carried into effect, and the trustees thereafter held the works, &c., in trust for the city of Philadelphia-</p> <p>That by the ordinance of 17th June 1841, which provided for the issuing of the said 5 per cent, loan, the trustees were authorized to borrow the further sum of $125,000 for the extern-sion of the works, on the same terms on which the previous loans had been negotiated; the premium received on any of said loans to be placed to the credit of the sinking fund. And for the further security of the loanholders of the said works, the faith of the city was thereby pledged that the prices of gas, as then fixed, should not be reduced until the distribution of gas by pipes, should be completed throughout the city limits; nor, at any time, so as to reduce the clear profits below eight per cent, per annum on the whole amount of the cost of said works, until all the loans contracted for, or that might thereafter be contracted for, should be paid. And for their further security, it was stipulated that the said works should be controlled and managed by a board of trustees, elected and constituted as theretofore, who should have the whole control and management of the said works, and of the said sinking fund, and of all the other funds belonging to the said works ; and that the said trustees should pay no part of the profits of said works into the city treasury, but should apply and appropriate the same as directed by the said ordinance, until the interest and principal of the said loans should be fully paid as they became due.</p> <p>That the said loan was contracted, and the proceeds applied, as directed by the said ordinance; and other additional loans were subsequently authorized and contracted upon the same terms and conditions. And that Frederick Fraley and others were the present trustees of the said works, and the other complainantr were holders of some of the said loans.</p> <p>That by Act of Assembly of the 2d February 1854, the boundaries of the city of Philadelphia were enlarged, and the corporate name changed to that of The City of Philadelphia; and that on the 19th June 1854, a joint committee of councils was appointed to take charge of the property, effects, &c., of the city proper; which committee had notified the trustees to consider the property and effects intrusted to them as under the charge of the said committee, and to furnish a schedule of the same; with which request the trustees, acting under the advice of counsel, had refused to comply.</p> <p>That on the 29th August 1854, the Common Council of said city had passed an ordinance, providing for the election of a chief engineer of gas works, who should be head of the Department of the Gas Works; and who, as such, should take charge of the works, &c., and nominate, and by and with the advice and consent of the Select Council, appoint subordinate officers; and that all moneys received for gas, &c., should be paid to such officers as the said chief engineer should designate, a-nd providing for the repeal of all inconsistent ordinances for the management of the said gas works; whereby the trust confided to some of the complainants was menaced, and they had reason to fear that the Select Council would concur in the said ordinance; and that the rights of the loanholders would be thereby invaded to their great loss and detriment.</p> <p>They therefore prayed for an injunction to restrain the defendants, their officers, &c., from interfering or intermeddling -with the said trustees or their successors, and from any attempt to invalidate the said trust, or the security of the loanholders, or to seize or take possession of the gas works, &c.</p> <p>On filing this bill, with affidavits as to the truth of the matters therein set forth, the complainants moved for a preliminary injunction ; which motion now came on to be heard.</p>

<p>Whenever a municipal corporation engages in things not public in their nature, it acts as a private individual, — no longer legislates, but contracts,— and is as much bound by its engagements as is a private person.</p> <p>It is not in the power of the legislature to authorize the violation of such a contract.</p>

This was an action of assumpsit by J. Edward Barnes and William J. Harlan, lately doing business under the firm of Barnes & Harlan, against the President, Managers and Company of the Delaware and Hudson Canal Company, to recover damages for the breach of a boating contract. In 1850, the plaintiffs entered- into a contract with the defendants to transport coal on their canal, from Honesdalo to Rondout, at certain rates therein stated.

<p>This court will take judicial notice, who are the judges of the subordinate state courts. Hibbs v. Blair, 2 Harris 417.</p> <p>The two associate judges, learned in the law, of the Court of Common Pleas of Philadelphia county, are competent to hold a Court of Oyer and Terminer, under the Act of 3d February 1843. That act is constitutional.</p> <p>Commonwealth v. Zephon, 8 W. & S. 382, affirmed.</p> <p>Dying declarations are inadmissible, unless, at the time the declarant made them, he was in actual danger of death; unless he believed death was impending, not distant; and unless death actually ensued.</p> <p>But it is not necessary they should be stated, at the time, to be made under a sense of impending death; it is enough, if it satisfactorily appear, in any mode, that they were made under that sanction.</p> <p>If an unlawful killing be committed with a deadly weapon, and accompanied with an intent to take life, it is murder in the first degree; and if the party had time to reflect and form the design, it matters not. how short that time may have been.</p> <p>If a deadly weapon be used, the provocation must be very great to reduce the grade of crime from murder to manslaughter.</p> <p>Commonwealth v. Hosier, 4 Barr 268, approved.</p> <p>In the absence of circumstances, and evidence, that the blow was struck with the intent only to do great bodily harm, the law presumes an intent to kill, from the use of a deadly weapon.</p> <p>To justify a conviction of manslaughter and not of murder, the death must have occurred in heat of blood, or on an immediate provocation, without previous malice.</p> <p>"What is sufficient cooling time after the provocation, to constitute the offence a murder, is to be judged of by the circumstances attending each particular case. The time in which an ordinary man, under, or in like circumstances, would have cooled, is a reasonable time.</p> <p>Where the killing with a deadly weapon is admitted, and there is no pretence that the wound was not designedly given; it is not error to charge, that if the offence is not manslaughter, it is murder in the first degree, as the jury might find that it was committed deliberately and premeditatedly, or in hot blood. A judge may rightfully express his opinion respecting the evidence.</p> <p>In case of reasonable doubt as to the guilt of the accused, evidence of previous good character is conclusive in his favour.</p>

This was an action of assumpsit by Phillips & King against John Miller, to recover the price of building a house, under the following agreement between the parties:— “ Article of agreement for building, made the 16th October 1856, between John Miller, of Silver Spring township, of the first part, and Phillips & King, of Mechanicsburg, Cumberland county, of the second part, in these words: The party of the second part covenants and agrees with the said Miller, to make and…

<p>The statutory privilege of the exemption of a portion of hia property from levy and sale under execution, is one which may be waived by the debtor.</p> <p>When made at the time the debt is created, the waiver is based upon the same consideration as that upon which rests the liability to pay, and is, therefore, irrevocable.</p> <p>Such a waiver is a contract that, so far as regards the judgment-creditor in whose favour it is made, the debt shall be collectable in the same manner as if the Act of 9th April 1849 had never been passed.</p> <p>A release of the privilege of exemption, is a release of the right to an appraisement, for the latter is inseparable from the former.</p> <p>A sheriff, having an execution in his hands founded upon a judgment, in which the benefit of the exemption law has been waived or released, is under no obligation to regard a claim by the debtor for the benefits of the act.</p> <p>It seems, that a claim for the benefit of the exemption, may be made by a parol request to the shei'iff, when absent from his office. It need not be made in the precise language of the act.</p> <p>The time for the debtor to elect whether he will retain real or personal property, is after the appraisers have been summoned.</p>

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was an action of debt brought in the court below, by John E. B. Graham, administrator de bonis non with the will annexed, of John Colwell, deceased, for the use of William Graham, against George Miller, administrator of William K. Tritt, deceased, with notice to terre tenants; upon a bond, dated the 2d April 1838, in the penal sum of $1000, conditioned for the payment of $458.33J to the executors of John Colwell, deceased, for the use of Mrs. Jane Phillips, at the decease of Mrs. Martha Colwell, the widow.</p> <p>On the 4th January 1831, John Colwell, by his last will and testament, devised one-third part of all his real estate to his wife for life; and directed a part of it to be sold hy his executors, and the proceeds to be divided among his four daughters, of whom' one was Jane Phillips, the wife of George M. Phillips.</p> <p>The executors sold one of his tracts of land to William K. Tritt, and, by the terms of sale, one-third of the purchase-money was made payable, upon the decease of the widow, viz., to each of the daughters $458.33J. Eor these sums, the purchaser gave bonds to the executors for the use of the daughters respectively; upon one of which the present action was 'brought.</p> <p>These bonds were secured by a mortgage on the land sold; they were all dated the 2d April 1838; and, on the same day, the legatees received the bonds and executed a release to the executors. This release was executed by George M. Phillips, the husband of Jane; and the bond was endorsed by the executors— “For the use of George M. Phillips and Jane his wife.”</p> <p>On the 11th August 1841, George M. Phillips borrowed from William Graham $200, and executed to him the following assignment of the bond in question:—</p> <p>“ 11th Aug’t 1841, borrowed and received from William Graham, two hundred dollars, which I promise to pay, the one-half in three months, and the other half in six months, with interest from this date. And I hereby assign and transfer to the said William Graham, a bond which I hold on William K. Tritt for $458.33£, payable on the death of Mrs. Martha Colwell; as a collateral security for the payment of the above sum of two hundred dollars. Witness my hand and seal the day and year first above written,</p> <p>George M. Phillips.</p> <p>$200.00.</p> <p>Test — Jas. H. Devor.”</p> <p>George M. Phillips died in May 1852, leaving his wife surviving; and Mrs. Martha Colwell, the widow of John Colwell, deceased, died on the Bd December 1856.</p> <p>On the 12th March 1857, Samuel Myers, the owner of the land bound by the mortgage, and who was summoned as one of the terre tenants, paid this bond to Mrs. Jane Phillips. After payment of the money, Myers inquired where the bond was; Mrs. Phillips said she did not know; James Colwell, who was present, said- he knew where it was, and agreed to keep Myers indemnified. Mrs. Phillips, at the same time, executed the following instrument:—</p> <p>“ I hereby acknowledge to have received of Samuel Myers four hundred and sixty-six dollars and thirty-five cents, in full of the one-fourth part of a mortgage of a tract of land in Southampton township, now owned by the said Samuel Myers and others, given to secure the payment of eighteen hundred and thirty-three dollars and thirty-three cents, one-fourth of which was payable to my use at the death of Mrs. Martha K. Colwell, widow of John Col-well ; and hereby authorize and empower the recorder of deeds of Cumberland county to enter satisfaction for the one-fourth part of said mortgage, being my interest in the same. The said mortgage is recorded in the recorder’s office of said county, mortgage-book F, vol. 1, page 49. Witness my hand and seal, the twelfth day of March, A. D. 1857.</p> <p>Jane C. Phillips.” [l. s.]</p> <p>Upon the trial, the defendant’s counsel requested the court to charge the jury as follows :—</p> <p>1. That the facts as proved in this case, do not exhibit such a disposition of the bond and mortgage by George M. Phillips, the husband, as did divest the right of survivorship of his wife, Mrs. Jane Phillips.</p> <p>2. Unless Mr. Myers knew, at the time he paid the money to Mrs. Phillips, that the bond had been assigned previously, the payment to her was good and discharged the mortgage pro tanto.</p> <p>3. That, in the absence of the bond, even if James Colwell did indemnify Mr. Myers for the payment to his sister, it is not such a notice, express or implied, as should vitiate his payment.</p> <p>4. That there is no evidence in the case, which amounts to either express or implied notice to Mr. Myers, that the bond had been assigned. Nor is there any evidence of such notice to him, as would justify his withholding the money. There being a mortgage on record to secure the same money.</p> <p>In answer to these points, the learned judge (Graham, P. J.) instructed the jury as follows :—</p> <p>“ 1. In this case the husband had possession of the bond, he assigned it for value, and, so far as the money was paid by the assignee, the assignment defeats the wife’s right as survivor, and the plaintiff would be entitled to recover. We, therefore, answer the first point presented by defendant’s counsel in the negative.</p> <p>“ 2. But defendant contends, that Myers paid this bond to Mrs. Phillips, without notice of the assignment, and is, therefore, protected from a recovery in this suit.brought for the use of the assignee. The law is, that if an obligor in a bond pays to the obligee without notice of an assignment, the assignee cannot recover; but, if it is paid under circumstances which ought to put a man of ordinary caution and prudence upon inquiry, which would enable him to ascertain the truth, then such payment would not defeat a recovery by the assignee. If Mr. Myers did not know, at the time of payment, that the bond was assigned, and did not pay it under circumstances which ought to have put him upon inquiry, which would have resulted in a knowledge of the assignment, the payment to Mrs. Phillips was good, and satisfies the mortgage pro tanto.</p> <p>“ 3. The absence of the bond, and the indemnity of James Colwell to Mr. Myers, is not notice to Mr. Myers that the bond was assigned; but is evidence, in connection with the other evidence in the case, for you to consider, in determining whether the payment was made under circumstances which ought to have induced inquiry, as we have before stated.</p> <p>“4. We cannot instruct you as requested by this point. The evidence is for you to pass upon, and we would not be justified in withdrawing it from the jury. There is evidence which we think tends strongly to show that if Mr. Myers did not know the bond was assigned, he paid it under circumstances which ought to have put him upon inquiry which would have resulted in ascertaining the truth.”</p> <p>To this charge the defendants excepted ; and a verdict and judgment having been given for the plaintiff, the defendants sued out this writ, and here assigned for error the charge of the court in answer to the 1st, 3d, and 4th points.</p>

This was an action of covenant by George Hauck against Daniel Rohref, acting executor of Jacob Stauffer, deceased, to recover damages for the breach of a covenant to lease certain lands in Manheim township, to the plaintiff.

This was a scire facias, by J. Wyeth Douglass, administrator of Samuel Smith, deceased, against William Rankin, Samuel W. Nevin, and William W. Nevin, executors of David Nevin, deceased, with notice to William Clark, terre tenant, upon a mortgage, dated the 25th March 1823, given by David Nevin, deceased, to Elizabeth Greer, widow of Thomas Greer, deceased, and Thomas Culvertson, Samuel Smith, Robert Strain, Thomas Greer, Michael Greer, Jr., Jane Greer, and Eliza Greer, the…

This was an appeal by George Byrod, from the decree of the court below distributing the proceeds of a sheriff’s sale of the real estate of Henry Greep. Henry Greep was the owner of two several tracts of land in Lancaster county, which was subject to the lien of the following judgments, to wit: George Byrod, 30th April 1855 . . » $1450.00. Christian Aumand and wife, 24th December 1855 1000.00. John W. Greep, 29th “ “ 394.30.

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an action of debt, brought by Henry Imhoff, for the' use of Peggy Witmer, against Andrew Metzgar, administrator of Christian Witmer, deceased, on a bond, dated the 24th January 1842, in the penal sum of $1000, conditioned that if, after the intended marriage of Christian Witmer and Peggy Phillips, the said Peggy should happen to survive the said Christian, her intended husband, then and in such case, the heirs, executors, or administrators of the said Christian should, within the space of six months next after his decease, pay to the said Peggy, her heirs or assigns, the sum of $500, for her own proper use.</p> <p>Christian Witmer was duly found an habitual drunkard, by inquisition, confirmed by the Court of Common Pleas of Lancaster county, on the 20th November 1837; and, on the same day, the court appointed a .committee of his estate.</p> <p>On the 24th January 1842, immediately before his marriage with Peggy Phillips, he executed the bond on which this action was brought; and died in November 1854, leaving his wife surviving. Andrew Metzgar took out letters of administration on his estate.</p> <p>On the trial of the cause, evidence was given of the sobriety of Witmer, at the time of the execution of the bond, but the court below (Long, P. J.), charged the jury, that an habitual drunkard, during the existence of the inquisition, was disabled from entering into a contract of a pecuniary character, and such contract could not be enforced. He, therefore, directed the jury to find a verdict for the defendant.</p> <p>To this charge the plaintiff excepted; and a verdict and judgment having been given for the defendant, the plaintiff sued out this writ, and here assigned the same for error.</p>

This was an ejectment by Samuel B. Heise, the.eldest son, and one of the heirs at law, of Patience Heise, deceased, against Henry Heise and Greorge W. Heise, the devisees of the said Patience Heise, for one-sixth part of a tract of 155 acres of land in West Hempfield township. The only question raised was, as to the validity of the will of Patience Heise, by which the tract in question was devised to the defendants below.

This was an action of debt brought by Daniel Eichthorn for the use of John Ross, against Andrew J. Miller, on a bond conditioned for the payment of $293. Eichthorn, the plaint,iff below, contracted to sell to one Andrew Cubbison, a lot of ground in Derry township, for $550. It was agreed that the deed should be made to Miller, the defendant, who was a brother-in-law to Cubbison.

Error in the Common Pleas of Centre county. This was an action on the case by John Campbell against R. H. McCoy and others, to recover damages for the overflowing of the plaintiff’s land, caused by the erection of a dam in Bald Eagle Creek, on land, adjoining that of plaintiff, owned by John Adams, of whom the defendants were the lessees.

This was an action of assumpsit by Eli K. Stoner against Henry Musselman, for the recovery of $100, on the following agreement :— “ Marietta, October 16th 1855. “ On the first day of April next, I promise to pay Eli K. Stoner one hundred dollars, or deliver to him the two black horses I received from him this day; for which he is to pay me four hundred dollars, and deliver up this agreement. “ Witness present, IT. Musselman.” “ Norman Hall.

<p>Error, to the Common Pleas of Lancaster county.</p> <p>This was an action of assumpsit by John Gyger & Co., bankers, against Philip Groth, as endorser of a promissory note for $115, made by Valentine Risse, dated at Lancaster, the 29th September 1856, and payable six months after date, to the order of the defendant.</p> <p>On the 16th October 1856, Valentine Risse, the maker, died, having by his will constituted the defendant and another his executors, to whom letters testamentary were granted on the 28th October 1856.</p> <p>The note in question was, at maturity, presented for payment at the banking house of the plaintiffs, and protested for non-payment; and the notary certified that he notified the endorser of the nonpayment and protest thereof, “ by depositing in the Post Office, at Lancaster, a notice enclosed in an envelope, addressed to Philip Groth, Water, between Orange and Chestnut streets, Lancaster City, Pennsylvania.” This was the only demand and notice; and the question was, whether the defendant, being an executor of the maker, was entitled to notice of non-payment.</p> <p>These facts having been embodied in a case stated for the opinion of the court, to be regarded as a special verdict, the court below gave judgment thereon for the plaintiffs, being of opinion that the want of notice was no .defence to this suit. The defendant, thereupon, removed the cause to this court, and here assigned the same for error.</p>

<p>Appeal in Equity from the Common Pleas of Clearfield county.</p> <p>This was a bill for an injunction, to restrain the directors of Boggs School District, from collecting a special tax levied by them for the erection of school buildings.</p> <p>The following is a copy of the bill filed:—</p> <p>“ To. the Honorable the Judges of the Court of Common Pleas of Clearfield County. In Equity.</p> <p>“ Humbly complaining, sheweth to your Honors, your orators John Blair, Thomas Ralston, P. Pollard, G-eorge James, Rudolph Litz, John Kephart, John R. Parks, Samuel Bell, et al. — That proceedings have been commenced, and a rule granted by the Court of Quarter Sessions of said county, on the school directors of Boggs Township School District, to show cause why they held their office, &c. — That the said directors or a portion of them, acting illegally and without authority, have laid a tax of twenty-four mills on the dollar: that they have made one Andrew Baughman, who is not a member of the board, treasurer and collector of the said tax; that said Andrew Baughman is an irresponsible man, and his bail owns no property in the township: — that the inhabitants of the said district have for years been paying heavy taxes which have been misapplied and lost by going into the hands of irresponsible parties: — that your orators are a committee appointed by a public meeting of the inhabitants of the said district to apply to your Honors for relief: — that if the said tax is collected it will be applied to purposes which your orators believe to be improper and unjust: — They therefore pray your Honors that the said directors and the said Andrew Baughman, may be restrained by the order and injunction of this Honorable court from collecting or receiving the tax so laid as aforesaid, until the said rule to show cause, and other proceedings, be determined by the said Court of Quarter Sessions, and your orators shall ever pray, &c.”</p> <p>The complainants thereupon, without issuing a subpoena, moved for a special injunction; on the hearing of which motion, the only evidence before the court was the affidavit of John Blair, one of the complainants, that the bill or petition was true to the best of his knowledge and belief; the duplicate of the assessment; and the admission of the counsel for the defendants that they had levied and assessed eleven mills .as a building tax within the district, for the current year.</p> <p>On hearing, the court below granted an injunction to restrain the school directors from collecting the tax of eleven mills for building' purposes; from which decree they appealed to this court.</p>

This was an appeal by Gish & Henzey, from the decree of the Orphans’ Court, distributing the personal estate of Jacob Numer, deceased, in the hands of A. Grim, his administrator. Jacob Numer died intestate and insolvent, in September 1855, indebted to Gish & Henzey, in a judgment obtained to November Term 1854, for a debt contracted prior to the Act of 9th April 1849, and to other creditors, whose debts were subsequently contracted.

This was an ejectment brought by Andrew Addleman and Robert Ross, executors of William Addleman, deceased, against Andrew Nearhoff and others, for a tract of 40 acres «of land in Taylor township — part of a survey in the name of William Addle-man.

Chaffee, Stout & Co., the plaintiffs in error, obtained a judgment in the court below, against Michaels & Worrell, to May Term 1856, for $1176.46, on which & fieri facias was issued, and placed in the hands of the sheriff, on the 31st August 1857. By virtue of this, and several other writs, the sheriff levied upon the personal property of the defendants, which remained in his custody at the time of the passage of the stay law of the 13th October 1857: JPamph. L. 1858, p. 611.

This was an action on the case by Charles Dodge and John Dodge against the West Branch Boom Company, to recover damages for the detention of a quantity of saw-logs, which ran into the defendant’s boom in the spring of 1852. The whole question in controversy turned upon the proper construction of the acts incorporating the West Branch Boom Company. The 7th section of this act of incorporation, passed the 29th March 1849 (Pamph.

This was an action of debt, brought by the Commonwealth of Pennsylvania, for the use of Lydia Shissler, against Michael Danner, Jacob L. Erb, and Jacob S. Shirk, on a recognisance entered in the Orphans’ Court of Lancaster county, conditioned for the payment of the sum of $5250 to the heirs of Grebill W. Danner, deceased; being the valuation of certain real estate of the said decedent, taken by Michael Danner under proceedings in partition.

<p>Appeal from the Orphans’ Court of Berks county.</p> <p>This was an appeal by Henry Gring and others, from the decree of the Orphans’ Court, distributing the balance in the hands of Benjamin Parvin, executor of John Yeich, deceased.</p> <p>' John Yeich died in 1844, leaving two brothers and one sister, and the children of three deceased sisters. By his will, he devised his farm to his widow for life, and after her decease, “ that the proceeds of said farm be and fall unto my brothers and sisters, or their children or heirs at law.” He also bequeathed one-third part of his personal property to his widow, “ and the remainder to be equally divided among my brothers and sisters, or their heirs; that is Henry Yeich, Samuel Yeich, the children of my sister Sarah, late wife of Abraham Reeser, and the children of my sister Susanna, late wife of John Hemmig, deceased, my sister Catharine, and the children of my sister Elizabeth, late wife of Henry Gring, deceased.”</p> <p>The fund for distribution consisted wholly of the proceeds of the real estate, and was reported by the auditor to be equally divided between the brothers and sister of the testator, and the children of his deceased sisters, the latter to take by classes. To this report exceptions were filed, and the court below decreed the whole of the fund to the surviving brothers and sister, to the exclusion of the children of the deceased sisters. From this decree the latter took this appeal.</p>

This was an appeal by Daniel Neas from the decree of the court below, distributing the proceeds of a sheriff’s sale of the real estate of Frederick Ream.

This was an ejectment, originally brought by Dr. Peter Shoenberger (at whose decease his executors were substituted as plaintiffs), against Gen. Andrew P. Wilson and others, for the property known as the Juniata Forge, and adjacent lands, containing about 7000 acres. Both parties claimed title under Edwin F. Shoenberger, who was the undisputed owner of the premises, on the 14th May 1849.

At April sessions 1856, the petition of sundry inhabitants of Juniata township was presented to the court below, praying for a division thereof. Commissioners were appointed, and on the 26th February 1857, their report, in favour of a division, was confirmed nisi;-and, on the 19th June 1857, no exceptions having been filed, the report was confirmed absolutely.

At January sessions 1856, the petition of divers inhabitants of Frankstown township was presented, to the court below, praying for the appointment of commissioners to inquire into the propriety of altering the division line between Catharine and Frankstown townships. Commissioners were accordingly appointed, who made their report to April sessions 1856, w'hich was read and confirmed nisi.

This was an action of trespass quare clausum fr eg it, by Aaron Zell against John Ream. Henry Strickler, by his last will, proved on the 3d June 1830, devised a house and five lots of ground in the town of Mount Joy, to his daughter, Esther Moyer, during life; and after her death to be the property of her children, and their heirs and assigns.

This was an action of covenant, by Young & Cameron against George M. Lauman, for refusing to permit the plaintiffs to complete their contract for the grading of a portion of the Lebanon Yalley Railroad. The Lebanon Yalley Railroad Company was organized in 1853, and agreed with George M. Lauman, the defendant below, for the construction of 15 miles of their road, lying between Harrisburg and Palmyra.

<p>An administrator -who, in good faith, litigates a claim against the estate of his intestate, is entitled to credit in his administration account for the costs and expenses of the litigation, including the amount paid for counsel fees; and also to an allowance for his time and trouble.</p>

<p>A vendee of land, under articles of agreement, who had paid $203.89, on account of the purchase-money, by endorsement on the articles, relinquished all his right, title, and interest therein; and the vendor at the same time entered into an agreement: 1. To receive back the land: 2. To allow the vendee the profit on a resale: 3. To give the vendee a deed for the land, if within ten days he should pay the balance of purchase-money, with interest: Held, that by this agreement, time was made of the essence of the contract; and that, after the lapse of the ten days, the vendee had no interest in the land.</p> <p>The time for complying with this agreement on the part of the vendee, was not extended by a letter subsequently written to him by the vendor, requesting him to be at the county court, on a certain day, and adding, “ if you neglect to be there, you are entirely done with the land.”</p>

This was an action • of debt brought by the Manheim, Peters-burg and Lancaster Turnpike or Plank Road Company, against John Arndt, to recover $250, the price of ten shares of stock in the plaintiffs’ road, subscribed for by the defendant.

<p>Error to the Common Pleas of Berlcs county.</p> <p>This was an action of trespass, originally brought before a justice of the peace, by Jacob Warren against Daniel Yerger and Hannah his wife, for damages alleged to have been sustained by the act of the defendants, in taking down the partition fence between the parties, and depositing a quantity of earth on the plaintiff’s lot.</p> <p>The parties were the occupants of adjoining properties in the city of Reading. In 1856, Hannah Yerger and Charles Panebacher, her son, who owned the. defendants’ lot in fee, entered into a contract with a carpenter to erect a house on the rear end of their lot. Whilst digging the cellar the partition fence fell down ; and, by direction of the contractor, the persons employed to dig the cellar deposited a quantity of earth on the plaintiff’s lot, -which was the trespass complained of.</p> <p>It was proved on the trial, that Daniel Yerger, one of the defendants, was frequently about the building, and that Mrs. Yerger had once or twice looked at it, when going out to feed her pigs; but neither of them gave any directions to the contractor or workmen.</p> <p>The defendants’ counsel requested the court to charge the jury, that “if Mrs. Yerger parted with all control over the subject-matter of the contract, and neither had nor exercised any control over the conduct of the contractor or his hands, then the defendants are not liable to this action.”</p> <p>The court below (Jones, P. J.) declined so to charge, but instructed the jury, that “if the work was apparently going on under the direction of the owner of the house, living in the house, and the work was done within the curtilage of the house, a person damnified thereby might well regard the builder as the servant of the owner of the house, and bring suit against the owner as such for the trespass of his servant. If there were such appearances, as might fairly induce the belief, that the building was erected under the direction of the Yergers, it would not matter what the contract was between them and Spohn. If he appeared to the world as their servant, acting under their directions, doing their acts under their supervision, they would be responsible for his acts.”</p> <p>To this charge the defendants excepted; and'a verdict and judgment having been given for the plaintiff for $5, the defendants sued out this writ, and here assigned such charge for error.</p>

This was an action of debt by Samuel Petersham, executor of Michael Lapp, deceased, against Christian Burkholder, on a bond, dated the 1st April 1854, in the penal sum of $12,000. On the 1st April 1854, the defendant, as principal, and Isaac E. Groff, as surety, made their joint and several bond to Michael Lapp, in $12,000, conditioned for the payment of $6000 on the 1st April 1855, with interest at 4-| per cent, on the same.

<p>If an assignee for the benefit of creditors, sell the personal property of the assignor, whilst still in the assignor’s possession; and the same be purchased by the wife of the assignor, upon the terms of sixty days’ credit, on a note with satisfactory security; and the assignee permit the goods to remain in the possession of the purchaser for more than sixty days, without insisting on the terms of sale; the title passes to the purchaser, and replevin will not lie for the goods.</p> <p>If a vendee obtain possession of goods, without complying with the conditions of sale, the vendor should immediately reclaim them; but if he lie by, and make no complaint in a reasonable time, he consents to the absolute transfer of the property.</p> <p>Where there is a sale of goods and delivery of possession, though the buyer intends at the time not to pay for them, and conceals his insolvency from the vendor, it is not a cheat that will avoid the sale. There must he artifice practised, such as was intended and fitted to deceive, to constitute a cheat.</p>

This suit was originally brought before a justice of the peace, by John Keith against Simon Brumbaugh and others, school directors of Middle Woodbury township, to recover compensation for the plaintiff’s services as a teacher, on an agreement under seal, dated December 1855. The cause came into the Common Pleas by appeal, and the plaintiff filed a declaration, the first two counts of which were in debt, and the third in covenant.

This was an action of assumpsit, by Matilda Topley, a married woman, against J. P. Kimball and C. Roth, Jr., administrators of A. E. Topley, deceased, to recover the sum of $1000, with interest, alleged to have been placed by the plaintiff in the hands of the defendants’ intestate. In March 1852, John B. Topley, the husband of the plaintiff, having become involved in pecuniary difficulties, his house was levied upon and advertised for sale, by the sheriff of Perry county.

<p>Error to the Common Pleas of Berks county.</p> <p>This was an attachment execution by Henry Ehrgood against Enos Gery, defendant, and J. Hagarman and Owen Coleman, garnishees.</p> <p>A fieri facias was issued out of the court below, at the suit of Tilard Gery against Enos Gery, the defendant, to April Term 1856. The defendant claimed the benefit of the exemption law; and his personal property, appraised at $7, was set apart to him. He then claimed the balance of the $300, allowed by law, out of his real estate. The appraisers reported that the real estate, consisting of a small house and lot of ground, could not be divided without prejudice to, or spoiling the whole, and returned a valuation of the same.</p> <p>At November Term 1856, the real estate was sold by the sheriff for $1010; and the court awarded to the defendant $293 of the proceeds, to make up the amount to which he was entitled under the exemption law.</p> <p>On the 10th November 1856, this sum of $293 was paid by the sheriff to J. Hagarman, the defendant’s attorney; and, before it could be paid over, this writ of attachment, at the suit of Henry Ehrgood, was served on him as garnishee.</p> <p>The court below adjudged the fund to the attaching creditor, which was here assigned for error.</p>

<p>A tenant in common, whose deed is on record, and who, being present when the land is put up at sheriff’s sale, under a judgment against his co-tenant, causes notice to be given that it was only the interest of the judgment-debtor which was being sold, is not estopped from asserting his title against the purchaser.</p> <p>Epley v. Witherow, 7 Watts 163, overruled.</p> <p>The primary ground of the doctrine of equitable estoppel by matter in pais, is, that it would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted.</p> <p>The element of fraud is essential, either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up.</p> <p>The doctrine resting thus upon the supposed existence of fraud, it is essential to its being allowed in any case, that it would work an injury, if the party alleged to be estopped should be permitted to set up his ease.</p> <p>If, therefore, the truth be known to both parties, or if they had equal! means of knowledge, there can be no estoppel by the silence of one of them.!</p> <p>The facts necessary to work an estoppel must appear affirmatively.</p> <p>Whatever puts a party on inquiry, amounts to notice, provided the inquiry becomes a duty (as it always is with a purchaser), and would lead to the discovery of the requisite fact, by the exercise of ordinary diligence and understanding.</p>

<p>Appeal from the Orphans’ Court of Lebanon county.</p> <p>This was an appeal by Jonathan Miller, from the decree of the court below, distributing the balance in his hands as administrator of the estate of his father, Valentine Miller, deceased.</p> <p>On the 19th January 1836, Valentine Miller, the intestate, contracted, by articles of agreement, to sell to his son Jonathan, the appellant, his farm in Lebanon county, at $60 per acre, payable in the following manner, to wit, $1500 part thereof, on the delivery of the deed, 11 and the remainder to be divided in three equal shares; the one share shall he the said Jonathan Miller, his hereditary portion from his father, the said Valentine Miller, and the other two shares shall be divided in eight equal yearly payments; the first is to be paid on the first day of April, a.d. 1837, and so on every first day of April, until the whole eight payments are in full paid.”</p> <p>This agreement also contained the following provision: “ And further, is agreed that the said Jonathan Miller has to give yearly, and every year, twelve bushels of good wheat, and Indian corn as much as to fatten two hogs, without pay, to the said Valentine Miller, and to his wife, during their natural .life, and to have a right to stay and dwell in the house where he now occupies until he can get another house, or can build a new house, &c.; and have a right to quarry stones on said land for his buildings, as much as he wants.”</p> <p>A deed of the farm was made in pursuance of this agreement; Jonathan paid $1400 on account of the purchase-money, the whole of which amounted to $4398.75; and gave his bonds for the balance, less $966.25, his share under the agreement.</p> <p>Valentine Miller survived until 1856, and died at the advanced age of ninety-four years, leaving the appellant and two other children, his heirs at law. Letters of administration were granted to the appellant; and, on a settlement of his accounts, the auditor appointed to make distribution among the heirs, brought all the advancements into hotch-pot, and reported a sum of $199.75 as due to the appellant.</p> <p>The court below, on exceptions filed, set aside the report of the auditor; and decreed the balance of the estate to be divided among the other heirs, to the exclusion of the appellant; being of opinion that the $966.25, advanced to him in 1836, was received in full of his share of the estate. From this decree the present appeal was taken.</p>

<p>A bond given by a licensed liquor dealer, under the Act 31st March 1856, is forfeited by a conviction of the principal obligor for keeping a tippling house. And the whole amount of the penalty is thereupon recoverable for the uses prescribed by the Act of Assembly.</p> <p>The Act 20th April 1858, $ 24, had no effect upon cases which had been judicially determined before its passage.</p>

Errur, to the Common Pleas of Cumberland county. Held: and the property condemned. Jacob Gr. Landis, one of the mechanics’ lien creditors of Moses Bowers, thereupon presented a petition to the court below, praying the court to stay “ further proceedings upon the judgment of John Flickinger, until a designation of the boundaries of the lot, or curtilage which ought to be appurtenant to…

<p>Error to the Common Pleas of Centre county.</p> <p>This was an ejectment by James Moore and others, heirs of Ann Wortz, deceased, against Daniel Houser and Uriah Stover, for 31 acres of land, in Benner township.</p> <p>In 1830, Jacob Houser was the owner of the premises in dispute. On the 14th August 1830, he made his will, to which was annexed a diagram of his real estate, valued by him at $17,479, and which he declared should be taken as part of his will. To each of his children, with the exception of Ann Wortz, one of his daughters, he devised a portion of his real estate, each devisee’s share being marked upon the diagram, and a valuation being placed upon each of them.</p> <p>He directed that each child’s share should be made equal to $2184.87, and for that purpose he charged the shares of each devisee with the payment to the other children of such owelty as would make them equal in value. To-his daughter, Ann Wortz, he devised no land, but bequeathed to her the sum of $2184.87, which he charged upon the land devised to the other children.</p> <p>Upon the diagram annexed to the will there was a lot of 31 acres 3 perches, marked “Ann Wortz’s lot, 31 acres 3 perches, and allowance,” which was not included in the lines of any of the purparts devised to the other children. This was the property in dispute, and was claimed by the plaintiffs as the heirs of Ann Wortz.</p> <p>The court below (Burnside, P. J.) charged the jury that this lot was not devised to any one by the body of the will; and that if they should believe it was the intention of the testator, by the designation on the diagram, to give this lot to his daughter, Ann Wortz, their verdict should be for the plaintiffs.</p> <p>To this charge the defendants excepted; and a verdict and judgment having been given for the plaintiffs, the defendants removed the cause to this court, and here assigned the same for error.</p>

<p>Where a younger block of surveys calls for two older blocks, as adjoiners, the location of one or two particular tracts of the younger block is not to be arbitrarily determined, but is to be got at by first' locating the block of which they are a part.</p> <p>Where surveys are made and returned into the land office in blocks, they are to be located on the ground in blocks.</p> <p>If a survey, according to its courses and distances, does not reach to its calls, it is generally to be carried to its calls, and the Commonwealth is paid for the excess when the patent is issued.</p> <p>If the excess be great, the owner of the warrant may limit himself short of some of his calls; and, in that event, the intervening land is open to new appropriation.</p> <p>The right under an indescriptive warrant attaches from the date of the survey; and if several surveys, under warrants of the same date, interfere with each other, the older survey must prevail.</p> <p>The patent does not locate the tract, hut it defines how much land the tract is to contain when it is located.</p>

<p>The conductor of a train of railroad cars, on a railroad belonging to the state, has a right to direct all the movements of the train; and the engineers and teamsters employed, whether the motive power be furnished by the Commonwealth or not, are regarded as agencies employed by him, and are under his control.</p> <p>Tor an injury resulting to a third person, through the negligence of any of the agencies employed in the moving or management of the cars, the conductor and his employers are responsible.</p> <p>Where the conductor permitted the train to stand on the crossing of a public street, and absented himself from it, and the teamster attached the horses to it and moved it, from which the injury ensued, it was as much the act of the conductor and his employers, as if he had been present and directed it to have been done.</p> <p>In such a case, the doctrine of remote and proximate causes, concerned in causing the injury, does not arise, and has no application.</p> <p>The rules prescribed by the canal commissioners, the general railroad law, and public policy, are alike opposed to transporters so using railroads as to obstruct public highways and streets.</p> <p>It is error, for the court below to submit to the jury, whether an obstruction of a public street was inevitable, where the evidence showed that it could have been avoided by the exercise of proper care and diligence on the part of the conductor. It is the duty of the court, in such case, to instruct the jury, as matter of law, that such obstruction is unauthorized and illegal.</p> <p>Where a child of tender years attempted to pass under a train of railroad cars, negligently left standing on the crossing of a public street, by which he was injured, the owners of the cars are liable.</p> <p>A child is not to be judged by the same rule as an adult, and cannot be regarded as guilty of negligence, for attempting to pass under a car, left standing across a street where he had a right to pass.</p>

This was an action on the case by Patrick Kelly against The Pennsylvania Railroad Company, to recover damages for injuries sustained by the plaintiff’s son, by the wrongful act of the defendant. On the 5th September 1854, the plaintiff was at work on The Broad Top Railroad, near Huntingdon, and his son James, a lad nine years of age, was sent to him with his dinner.

This was an action of trespass quare clausum freyit, brought by Thaddeus Stevens against John Holker Hughes and Napoleon Hughes, to recover damages for cutting timber upon the plaintiff’s land in Guilford and Green townships. The declaration described the close by metes and bounds. To this the defendants pleaded the general issue, two special pleas denying the title and possession of the plaintiff, and liberum tenementum.

<p>Appeal in Equity from the Common Pleas of Lancaster county.</p> <p>This was a bill in equity originally exhibited by Jonathan Pusey against Archibald Wright and John Wright, and Thomas S. Richards, their agent and manager, praying for an injunction to restrain the defendants from using a certain lateral railroad constructed by them over the complainant’s land, from the Pennsylvania Railroad to the Shawnee Furnace owned by the said Archibald and John Wright, until they should have complied with the terms of the contract under which the said railroad was constructed.</p> <p>Jonathan Pusey died, pending the suit, and his heirs were substituted as plaintiffs. The case was heard in the court below, on bill, answer, replication, and proofs. The facts of the case are sufficiently set forth in the opinion of the court below, which was as follows:—</p> <p>“ Jonathan Pusey being seised and possessed of seven acres of land in the borough of Columbia, including a part of the Shawnee Run and a mill dam and ptmd connected with a saw and grist-mill belonging to him, below the same, entered into a contract with the respondents, who had commenced proceedings under the Act of Assembly in such cases provided, to obtain from the Court of Common Pleas of Lancaster county the legal authority to make a lateral railroad; in consequence of which contract, the said proceedings were discontinued, it being agreed, that the said railroad should be laid out and made through the said seven acres of land, extending from the Shawnee Furnaces above the same, to other property belonging to the defendants, below the seven acres and beyond the Philadelphia and Columbia Railroad.</p> <p>“In pursuance of that agreement, Thomas S. Richards, the manager of the said furnaces, and the said Jonathan Pusey went together upon the said seven acres. The route through the same for the said railroad, was selected and staked out. The said manager proceeded with his hands and workmen to grade the road upon the said route, making embankments where they were required, and preparing the bed of the road for cross ties and rails. During the progress of the work, Jonathan Pusey was several times present, saw the work advancing, made no objection, but was apparently satisfied with the same, nor was any dissatisfaction intimated, until the embankments were entirely completed, and some of the cross ties were put down, or at least ready to be laid. Then, for .the first time, complaints were expressed, not by Jonathan Pusey, but by Isaac Pusey, his son and agent, who complained that Archibald Wright had not treated them well in regard to the damages. Such is the defendants’ answer.</p> <p>“ The complainants’ bill avers that there was a further agreement, for a connection of the plaintiffs with this lateral railroad and their common use thereof when completed, and for a turnout to the Philadelphia and Columbia Railroad, which the defendants have refused to make and allow; that the said lateral railroad was not laid out or constructed in accordance with the contract between the parties, but in violation thereof; in consequence of which the run and dam were obstructed — that the defendants had also further agreed to make and keep in repair fences on each side of the said road along its whole course, which they had likewise neglected, and that the complainants thereupon proceeded to repossess and reoccupy the said seven acres, by enclosing the same with a fence, which the defendants afterwards prostrated.</p> <p>“ The defendants’ answer positively avers that the lateral railroad aforesaid was surveyed and ultimately laid out, staked, graded, and completed just where it now is, with the full knowledge and consent of the said Jonathan Pusey, in pursuance of the agreement between the parties; that no complaint was heard or known in regard to the route, until it was graded and prepared for receiving the rails; and the answer positively denies that it was further agreed, as the bill avers, that the complainants should have the privilege of making a connection with or have common use of the said railroad, or that the defendants would make a turnout to the Philadelphia and Columbia Railroad, or that they were to make and keep in repair a fence on each side of the said lateral railroad; and it denies that there was any other attempt made by the complainants to repossess or reoccupy the premises occupied by the said railroad, than by the erecting of a fence across the same after it was completed and in use, which was immediately prostrated by the defendants in their lawful use of the said road, which from its completion they have continued to use up to the time of the making of such answer.</p> <p>“ The bill admits, and the answer avers, an agreement, on the part of Jonathan Pusey, by which the defendants were fully authorized to enter upon the seven acres in question, for the purpose of making this lateral railroad. This the defendants had a right to make, according to law, upon the previous required proceedings which they had commenced, and which would have imposed upon them the condition only of payment of the amount of damages that would have b.een assessed 'for the compensation of the complainants. No assent of the complainants was necessary to enable the defendants to proceed. But the answer avers that upon notice served on the said Jonathan Pusey of their petition filed, he dissuaded them from proceeding, and readily and freely consented that they should go on with the said railroad through his premises, saying that the damages might afterwards be adjusted between Archibald Wright and himself. The answer avers that the result of this conference was the contract set forth in the answer, and the discontinuance of the proceedings in the Court of Common Pleas.</p> <p>“ Were the deposition of Thomas S. Richards duly before us, his testimony woul.d verify every averment of the answer; but although it sufficiently appears that he had no interest in the matter complained of, yet being charged as one of the defendants of record in the case, to make him a witness for his co-defendants, it was necessary to obtain a previous order for his examination.</p> <p>“ There being no such order, his deposition is excluded; and the same rule applies to that of John Cooper, even if the release in his case had divested his responsibility: 2 Raniell’s Pract. in Chancery 488, 489; 2 Madd. Ch. Pr. 315, 316.</p> <p>“ But the facts set forth in the answer, relative to the commencement of the proceedings in the Common Pleas, the agreement with Jonathan Pusey, his knowledge of the route of the railroad, and progress of the work without objection, up to the completion of the same, in readiness for the laying of the cross ties and rails, stand uncontradicted by the testimony, and there is no evidence to establish the complainants’ averments with respect to the stipulations about the privilege of connection and common use, turnout, and erection and repair of fences.</p> <p>“ The question, then, is fairly raised, whether, if the complainants have been damnified in the premises, an injunction is the proper remedy.</p> <p>“ The complainants could demand that remedy only upon the ground that this railroad of the defendants, made through their land, is a nuisance ; and had it been made without their consent or authority of law, it would have been a nuisance to the complainants — differing in its character from a mere temporary trespass, in the permanence of the injury; which characteristic appears to be the recognised warrant for an. injunction. But in all cases of this sort, courts of equity will grant an injunction to restrain a nuisance, only when the fact is clearly made out upon determinate and satisfactory evidence. For if the evidence be conflicting and the injury doubtful, that alone will constitute a ground for withholding this extraordinary interposition: 1 Coop. Ch. C. 313; 3 Mylne Keen 369; Hart v. The Mayor of Albany, 3 Paige's R. 210, 213; 2 Story's Hq., § 924, 925.</p> <p>“ If the railroad in this case was made, as the answer avers, in strict conformity to the agreement between Jonathan Pusey and the defendants, the only question that can arise is in relation to the amount of damages, if any, sustained. No matter what may be the value of the damages, there could he no ground for an injunction. If, in constructing the road, the defendants exceeded the proper bounds, in the embankment, for instance, making it so as to cover more ground than necessary, yet, if the complainant Jonathan Pusey looked on and suffered the embankment to be completed and prepared without objection, and only excepted to the work after it was done, there could be no just claim, on his part, for an injunction to remove the road as a nuisance to him or his heirs, or to prevent the defendants from using and enjoying the same. The soundness of that discretion (said Lord Brougham in 3 Mylne ‡ Keen) seems undeniable, which would be very slow to interfere, where the thing to be stopped, while it is highly beneficial to one party, may very possibly be prejudicial to none. The great fitness of pausing much, before we interrupt men in those modes of enjoying or improving their property which are frimd facie harmless or praiseworthy, is equally manifest. And it is always to be borne in mind, that the jurisdiction of this court over nuisance, by injunction, at all, is of recent growth'; has not, until very .lately, been much exercised; and has, at various times, found great reluctance, on the part of the learned judges, to use it, even in cases where the thing or the act complained of was admitted to be immediately and directly hurtful to the complainant.</p> <p>“ In regard to the Shawnee Bun, or the complainants’ mill-dam, it is certainly not shown by the evidence, that any injury has yet accrued to the complainants’ water-power; and with respect to any future possible effect, another remark may be appropriately quoted from the same case, 3 Mylne ‡ Keen 169. It is also (says the Lord Chancellor) very material to observe, what is indeed strong authority of a negative kind, that no instance can be produced of interposition by injunction, in the case of what we have been regarding as eventual or contingent nuisance.</p> <p>“We are, therefore, of opinion, that the complainants are not entitled to the. relief which they seek by their bill:</p> <p>“ 1. Because the defendants were entitled, by pursuing the proceedings which they had commenced, to make the lateral railroad from their works, through the complainants’ land, compensating the said Jonathan Pusey, or his heirs, in such damages as the appraisers, whom the court should appoint, might determine; and those proceedings were discontinued, at the suggestion of the complainant, Jonathan Pusey, and his consent and agreement to allow the defendants to enter upon his land, and lay out, grade, and construct said road.</p> <p>“ 2. Because the defendants did enter upon the complainants’ land aforesaid, by his consent; and in conjunction with him, selected the route, and laid out the road, pursuant to an agreement between them; and if any objection was made, it was not by Jonathan Pusey, nor his agent, until the road was in such a state of forwardness as to be ready to receive the cross-ties and rails — the said Jonathan Pusey having, in the mean time, witnessed the progress of the work without objection. After acquiescing so long, it was too late to apply for an injunction to remove all this work as a nuisance, which the defendants had commenced with his knowledge and consent.</p> <p>“ 3. And because, as the case stands upon the bill and answer, and the depositions, it appears to us that there is nothing between the parties, but the question of damages, which the complainants may have sustained, by reason of the said railroad; and for the solution of that question, we think, the injunction prayed for is not the remedy.</p> <p>“ The complainants’ bill is, therefore, dismissed, with costs.”</p> <p>From this decree the present appeal was taken by the complainants.</p>

<p>A married woman cannot, By her next friend, maintain an action of debt against her husband on a contract made during coverture.</p> <p>Such action is not authorized by the Act 11th April 1848, or any of its supplements.</p>

Error, to the Common Pleas of Lebanon county. This was an ejectment brought by Martin Wengert against Levi Zimmerman, Daniel Maulfair, John A. Fisher and Josiah Funck, for a lot of about half an acre of ground, in the township of North Annville, Lebanon county.

<p>The Act 30th March 1811 gives an appeal from the decision of the accounting officers to the Common Pleas of Dauphin county, in all cases where they disallow a claim against the Commonwealth.</p> <p>One who gives a receipt to a state agent, without actual payment, has no just claim against the Commonwealth, although he may have given notice to the accounting officers to disallow such receipt as a credit, in a settlement of the defaulting agent’s accounts.</p>

<p>Error to the Common Pleas of Huntingdon county.</p> <p>This was an action of ejectment by John Penn Brock against John Savage, to recover the possession of a tract of land in Union township, Huntingdon county, warranted in the name of Mary Fred, containing four hundred acres. He showed the warrant and survey, and a patent dated 25tlr Dec. 1796, to Charles Young, reciting a deed poll from the warrantee. He also showed a regular chain of title from the patentee to himself.</p> <p>The defendant claimed the land under the same original title, and proved that on the 15th, 18th, 21st, and 24th March 1794, ninety-six warrants were issued upon applications of Arthur Chambers and John McNutt, for lands in Huntingdon county, of which the tract in dispute was one. And on the 29th March 1794, James Wilson of Philadelphia, and Chambers and McNutt, entered into the following article of agreement:—</p> <p>“ Articles of agreement indented, made the twenty-ninth day of March, in the year of our Lord one thousand seven hundred and ninety-four, between Arthur Chambers, of Huntingdon county, in the state of Pennsylvania, and John McNutt, of the same county, in the said state, of the one part, and James Wilson, of the city of Philadelphia, Esquire, of the other part: Whereas, the said Arthur Chambers and John McNutt have entered in the land office of Pennsylvania, applications for ninety-six tracts of unlocated land, each for four hundred acres, in Huntingdon county, containing in the whole thirty-eight thousand four hundred acres, in the names of the following persons, to wit: [here follow the names of the 96 warrantees,] the warrants being now issued or about to be issued for surveying the same, all which lands the said Arthur Chambers and John McNutt have bargained and sold to the said James Wilson, on the following terms: that they, the said Arthur Chambers and John McNutt, shall and will on or before the first day of August next, at their own expense, procure from the several persons aforesaid, whose names have been made use of in the said warrants, deeds for all the said lands to the said James Wilson in fee, and also survey or cause to be surveyed all the said lands, and pay for the provisions, chain carriers’ and markers’ wages, and every other expense attending the surveying the same; and after the said lands have been so surveyed, have the same returned to the surveyor-general’s office, and patented to the said James Wilson in fee simple. In consideration whereof, the said James Wilson doth hereby covenant, promise, and agree to pay, or cause to be paid, the purchase money to the state, and office fees for the said tracts, and to the said Arthur Chambers and John McNutt the sum of twenty shillings per tract for provisions, chain carriers’, markers’ wages, and every other expense attending the surveying the same; and when the returns of survey are all made to the surveyor-general’s office, clear of dispufes and ready for patenting, then he, the said James Wilson, shall and will advance and pay all the surveying and patenting fees; and after all the said patents are obtained in manner aforesaid, and legally recorded in the Rolls’ office, then he, the said James Wilson, shall and will farther pay or cause to be paid to the said Arthur Chambers and John McNutt nine pence per acre, at the following times, viz. : one-fourth part thereof at the delivery of the patents, and the residue in two years from that time, with lawful interest, excluding the allowance of six per cent, for roads, to be ascertained and fixed by the patents and surveys. And, for the true performance of all the covenants and agreements aforesaid, the said parties hereto do mutually bind themselves, their heirs, executors, and administrators, each to the other of them, in the penal sum of ten thousand pounds, firmly by these presents. In witness whereof, the said parties have interchangeably set their hands and seals hereto, dated the day and year first above written.”</p> <p>The receipt of Chambers and McNutt, endorsed on the day of its date, for ¿£96. And another of John McNutt, on the 22d May 1796, for $20. The purchase-money and office fees of these tracts were paid by James Wilson, as shown from the receipts and the books of the land office. On the 20th August 1796, James Wilson and wife made the following conveyance to Benjamin R. Morgan, and which was recorded in Huntingdon county:—</p> <p>“ This indenture, made the twentieth day of August, in the year of our Lord one thousand seven hundred and ninety-six, between James Wilson, Esq., and Hannah, his wife, of the city of Philadelphia, of the one part, and Benjamin R. Morgan of the same place, of the other part, witnesseth: that the said James and Hannah, for and in consideration as well of certain debts due and becoming due from said James to Henry Lee, Esq., of Westmoreland, in the state of Virginia, and the said Benjamin, as for ten pounds by the said Benjamin to the said James paid, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, enfeoffed, released, and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release, and confirm unto the said Benjamin R. Morgan, his heirs and assigns for ever, all the lands,, tenements, and hereditaments, rights, properties, and demands of the said James, together with all his estate, right, title, and interest of, in, to, and out of, all and every the lands held by or to which the said James has a legal claim, within the counties of Northampton and Huntingdon, (his estate at and contiguous to Wilsonville, containing about one hundred and fifty thousand acres, only excepted); to have and to hold the same to him, the said Benjamin, his heirs and assigns for ever, under the special trust, confidence, and conditions following: that is to say, he, the said Benjamin, shall, within four months after the said James shall have furnished to him the requisite papers, descriptions, drafts, and evidences of title respecting the said lands, select therefrom such part as at a reasonable price, to be agreed on between the said James and Benjamin, will amount to double the value of the whole of the debts- then existing from the said James to the said Henry and Benjamin; but if they cannot agree in a valuation of the said lands, then the same shall be estimated at such price as shall have been fixed by the said Benjamin ; provided that the said James shall, at any time within thirty days after being notified of the valuation made by the said Benjamin, be entitled to a reconveyance of all the lands hereby granted, on his paying and satisfying to the said Benjamin, the whole amount of debts then existing from him to the said Henry and Benjamin, and the- expenses incurred by them in selecting and conveying the lands hereinbefore mentioned. But if the said James shall not pay the amount of the existing debts then, due to the said Henry and Benjamin, within the time above mentioned, then the said Benjamin shall reconvey to the said James all the said lands, excepting the quantity so as aforesaid selected, and shall in like manner reconvey to him, within three months after patents shall have been obtained for the quantity so 'selected, such part thereof as he, the said Benjamin, may think fit, as at the said valuation shall remain, after satisfying all the debts of the said James to the said Henry and Benjamin, and all the necessary expenses of making such selection and completing the titles and conveyances respecting the same, he, the said James, at the same time executing such further deed, contract, or warranty, as may, by the said Benjamin, be requested respecting the quantity so as aforesaid retained by him. In witness whereof the said parties have hereunto interchangeably set their hands and seals, the day and year first above written.”</p> <p>On the 26th and 27th of December 1796, sixty-eight of these tracts were patented to Charles Young, reciting deed poll from the warrantees to Chambers and McNutt respectively, and by them to Young. In 1800, these lands, with others belonging to Wilson and claimed to be included in the conveyance to Morgan, were assessed with taxes, and the taxes were regularly paid by Morgan or his agents. In 1803, the tract in dispute was omitted from the list, and does not appear to have been assessed again with taxes until 1844, when it was put upon the list at the suggestion of Jacob Cresswell, Esq. In 1801, Morgan, by letter of attorney, constituted John Cannon his agent in reference to these lands. He continued to act as such until after 1820. And on the 16th Dec. 1824, Thomas Jackson was constituted the attorney in fact for Morgan. Charles Young, the patentee, died in 1803, leaving issue an only son Charles Young the 2d. Charles Young the -1st had assigned or conveyed five of the 68 tracts patented to him, to Edward Thursby and Hugh Holmes, merchants of the city of Philadelphia, and on the 30th March 1808, they and Morgan, reciting the agreement between- Chambers and McNutt and Wilson, and the conveyance of Wilson and wife to Morgan, entered into a submission, in which they referred to the referees named, to “consider and determine whether the said patents were rightfully issued to the said Charles Young, and whether the lands therein described, are, by virtue thereof, and of any sufficient legal or equitable conveyance from the said Arthur and John, or from the said James Wilson to the said Charles Young, and of his said assignment, now, of right, vested in and belonging to the said assignees; and to deliver up to the party in whose favor such award may be, all patents, conveyances, and title papers relating solely to the said lands, and also to execute such releases, deeds, or transfers, as may be directed by the said referees as necessary to extinguish or convey all the title of the party against whom such award may he given, and vest it in the other; and they hereby further bind themselves to each other in the penal sum of one thousand dollars, to be forfeited and paid by either party neglecting or refusing to perform such award as said referees, or any two of them, shall make to the other. In witness whereof, the said parties have hereunto set their hands and seals this 30th day of March mdcccviii.”</p> <p>On the 30th May 1809, the referees made the following award:—</p> <p>“ We, the subscribers, in a written agreement bearing date 30th March, 1808, (between Hugh Holmes and Edward Thursby, of the city of Philadelphia, merchants, of the one part, and Benjamin R. Morgan of said city, attorney at law, of the other part,) to whom were referred the claims of the said parties to five certain tracts of land in the county of Huntingdon, state of Pennsylvania, held under warrants to Frederick Sills, Henry Sills, Andrew Sills, John Shaver, and Tempey Shaver, dated 18th March 1794, having carefully examined and maturely considered those claims respectively, do award the lands in question to the said Benjamin R. Morgan, and that the said Hugh Holmes and Edward Thursby deliver all the patents and title papers of said lands in their possession to the said Benjamin R. Morgan, and execute such releases, deeds, or transfers of the same as may be necessary to extinguish all their claim to the same, and vest it in the said Benjamin R. Morgan; he paying all costs of the patents, title papers, and releases, agreeably to the stipulation of the said parties in article aforesaid. Francis Johnston,</p> <p>Simon Gratz,</p> <p>Edward Lynch.”</p> <p>On the 25th June 1813, Charles Young the 2d, by his indenture of release, reciting therein the conveyance from Wilson and wife to Benjamin R. Morgan, the agreement between Chambers and McNutt, and Wilson, and that a part of the lands had been issued to his father, Charles Young, deceased, and the submission and award between Morgan and Thursby and Holmes, and that the title papers to the five tracts had been delivered over by Thursby and Holmes to Morgan, he, “In consideration of the premises, and of the payment to me of the patenting and recording fees on twenty-five of the said patents in the name of the said Charles Young, deceased, now held by me for that number of tracts, part of the said land, by the said Benjamin R. Morgan, the receipt "whereof is hereby . acknowledged: have assigned, released, transferred, and set over, and by these presents do assign, release, transfer, and set over unto the said Benjamin R. Morgan, his heirs and assigns, all my right, title, interest, claim, and demand, to, in, and out of the said twenty-five patents and the lands therein contained, amounting in the whole to ten thousand four hundred and eighty acres and three perches, in the county of Huntingdon aforesaid, which said patents are of the dates and in the names of the warrantees following,” &c.</p> <p>Cannon, after his appointment as agent, paid the taxes and made a sale of two tracts in 1816, to Joseph Norris. After his death in 1824, Thomas Jackson becoming the agent and attorney in fact of Morgan, made various sales of tracts of these lands to different persons, and paid the taxes for Morgan. And on the 21st March 1833, he entered into an agreement in writing with John Thompson, agent for John Savage, the grandfather of the defendant, for the sale of 31J tracts, part of the 96 tracts embraced in the agreement between Chambers and McNutt and Wilson. And on the 22d September 1834, Benjamin R. Morgan conveyed by his deed of that date, 33 of the tracts mentioned in Chambers and McNutt’s agreement, and including the Mary Fred tract, being the land in dispute together with 39 other tracts, not in McNutt’s agreement. At the time of the sale by Jackson in 1833, a survey was made by running the exterior lines of about 12,000 acres including the Mary Fred tract. At the time of the sale, Savage took possession of the body of lands, and on the western part erected a forge, saw-mill, and a number of dwelling-houses for workmen. These buildings were at the junction of three tracts of the body of lands, but no clearing or improvement was made on the Mary Fred tract. Timber for the mill and for coaling purposes was cut on various part of the land, and the taxes have been regularly paid by Savage since his purchase. The plaintiffs alleged that the three tracts on which the forge and other improvements by Savage were made, were severed from the body of the lands, and from the tract in dispute, by lands conveyed by Morgan to Norris in 1816, and to Trexler in 1813.</p> <p>The plaintiff presented the following points: — ■</p> <p>1. That the plaintiff having a perfect legal title, is entitled, under the evidence in the cause, to a recovery of the land mentioned in the writ of ejectment.</p> <p>2. That any equity created in Judge Wilson by the entry in the Old Purchase Blotter of the payment of the purchase-money by him, was extinguished by the lapse of twenty-one years from the date of the patent to Charles Young, in the absence of actual possession, or the institution of an action of ejectment.</p> <p>3. That the agreement of 29th March 1794, between Arthur Chambers, John McNutt, and James Wilson, was in the. nature of an executory contract, under which Wilson acquired an equity in the lands referred to, to the extent of the amount of the money actually paid, which was lost by reason of the non-compliance of the conditions to be performed on his part.</p> <p>4. That Wilson was bound by the terms of the agreement to pay Chambers and McNutt the amount of fees, as well for surveying and returning the ninety-six tracts, prior to the issuing of the patents, as the patenting fees, and one-fourth of the additional purchase-money, to said Chambers and McNutt, upon the delivery of the patent; in default thereof, the vendors had the right'to rescind the agreement.</p> <p>5. That there is no evidence that Wilson paid or offered to pay McNutt and Chambers the amount of fees for surveying, returning, and patenting, nor of the remaining unpaid purchase-money due Chambers and McNutt; and therefore they had the right to rescind the agreement of 1794.</p> <p>6. That the conveyance from Wilson to Morgan of 20th August 1796, is in the nature of a mortgage to secure the indebtedness of Wilson, to Lee and Morgan, and therefore conferred no title upon Morgan otherwise than as mortgagee; and after the lapse of twenty-one years, the same was presumed to be paid and satisfied.</p> <p>7. That if Wilson failed to comply with his covenant, in the agreement of 1794, either from refusal or inability, the vendors in said agreement had the right to disregard and rescind it, and Wilson could not substitute, without the consent of the vendors, his assignee in the place of his own personal responsibility; and that the subsequent conveyance from McNutt to Young, connected with the embarrassment of Wilson, raises a presumption, after the lapse of time, that the contract was rescinded.</p> <p>8. That the submission to referees, the award and subsequent releases and conveyances by Thursby, Holmes, and Young, of thirty tracts to Morgan, is evidence of a compromise and settlement of the claims of the respective parties, and a surrender and relinquishment by Morgan to Young, of any legal or equitable claim to the remainder of the tracts patented to said Young; and if the jury believe the same, the plaintiff is entitled to recover.</p> <p>9. That the actual entry upon part of the lands in. 1833 or 1834, did not revive the extinguished equity of Wilson or Morgan ; and if there is any efficacy in said entry or possession, it could only be available under the Statute of Limitations.</p> <p>10. That if the jury believe that Savage made such entry upon parts of surveys, in the names of Peter Shaver, Tempey Shaver, George Prough, and Hans Morrison, by the erection of the buildings testified to by the witnesses, he would be protected by the Statute of Limitations, only to the boundaries of the lines of those surveys.</p> <p>11. That all the evidence of the exercise of acts of ownership, from 1796 to 1833, either by Wilson or Morgan, did not interrupt or prevent the extinguishment of their equity, acquired under the agreement of 1794.</p> <p>The court below (Taylor, P. J.) answered these points in the negative, and directed the jury to find for the defendant.</p> <p>The plaintiff sued out this writ, and inter alia assigned that the court below erred in answering these points in the negative, and in the instruction to find for the defendant.</p>

The justice gave judgment in favor of the plaintiff for $35 ; from this the defendant appealed to the Common Pleas, where the cause was arbitrated, and there was an award of “ no cause of action.” The plaintiff paid the costs and appealed from the award, and on the trial recovered a verdict for ten cents damages. The court below entered judgment on the verdict with full costs, which was here assigned for error.

<p>Where the rent of a farm is payable in a share of the grain raised on it, division and delivery are essential to vest the title to the grain in the landlord.</p> <p>Any act intended to, and which does, in fact, enable the landlord to obtain dominion over the thing paid, is a sufficient delivery to divest the tenant’s title.</p> <p>By an Orphans’ Court sale of the property, the right to a share of the growing crops, reserved as rent, passes to the purchaser.</p> <p>If, in such case, the tenant deliver the landlord’s share to the former owner, the purchaser may maintain replevin for it.</p>

<p>To establish a resulting trust against a'purchaser at sheriff’s sale, under an execution against the alleged trustee, it is necessary to establish not only the existence of the trust, but also that the defendants who had-purchased the title of the trustee, had knowledge of the trust at the time of the purchase.</p> <p>It is error, in such case, to instruct the jury, that the evidence of a witness, if believed, was sufficient proof of knowledge by the purchaser. That is a question of fact for the jury.</p> <p>A purchase of real estate with a wife’s money, which was obtained on condition that the deed should be taken in the wife’s name, would constitute the husband a trustee for his wife, independent of the Act of 1848. And the subsequent giving of a judgment for the money, would not convert his situation of trustee into that of a mere debtor.</p> <p>The giving of notice to the sheriffs by the wife, that she claimed the benefit of the exemption law, out of the property, and the subsequent renting of it from the purchaser, though strong evidence against the wife, would not estop her from setting up a resulting trust in the land.</p>

<p>Error to the Common Pleas of Lycoming county.</p> <p>This was an ejectment by Franklin S. Peterman against James Huling, for two tracts of land in Penn township, each containing 43T acres 39 perches. The defendant disclaimed title and possession as to one-half of the land.</p> <p>There had been a former verdict and judgment in ejectment, between the parties, upon the same equitable title, and the only question in this case was, as to the conclusiveness of that proceeding. The case of Coder and Peterman v. Huling, is reported in 3 Casey 84.</p> <p>The court below instructed the jury that the former verdict and judgment were conclusive evidence of Huling’s right to one-half of the land, and a bar to the present action.</p> <p>To this charge the plaintiff excepted; and a verdict and judgment having been given for the defendant, the plaintiff removed the cause to this court, and here assigned the same for error.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of assumpsit by Morris Roberts, for the use of John Scott, against the State Mutual Eire Insurance Company, upon a policy of insurance against fire, issued by the defendants on the 12th December 1853, whereby they insured the plaintiff, for the term of two years, against loss or damage by fire, to the extent of $2500, on his brick dwelling-house in McKeesport.</p> <p>The policy contained a proviso that, if the insured or his assigns should thereafter make any other insurance on the same property, and should not, with all reasonable diligence, give notice thereof to the secretary, and have the same endorsed on the policy, or otherwise acknowledged in writing, the policy should cease and be of no further effect; and that, in all cases of other insurance on the property insured, whether prior or subsequent to the date of the policy, in case of loss or damage by fire, the insured should not be entitled to demand or recover on the policy any greater portion of the loss or damage sustained, than the amount thereby insured should bear to the whole amount insured on said property. The payment of loss or damage was limited to an amount not exceeding two-thirds the appraised cash value of the building.</p> <p>On the 14th December 1853, Roberts, with the assent of the company, assigned this policy to Oliver Blackburn, to secure a mortgage debt on the premises insured and other property; and on the 20th December 1853, Blackburn assigned his mortgage and this policy to John Scott, the equitable plaintiff.</p> <p>On the 16th October 1854, Roberts effected another insurance on the same premises, for $2000, with the Lycoming County Mutual Insurance Company, for the term of five years; no notice whereof was given to the prior insurers. On the 14th November 1854, the premises were destroyed by fire.</p> <p>The defendants pleaded, 1st, non dssumpsit; 2d, payment with leave ; 3d, set-off; 4th, premises not destroyed by fire; 5th, that plaintiff had not performed the conditions precedent; 6th, that on the 16th October 1854, the plaintiff, Roberts, effected another insurance on the same property in the Lycoming County Mutual Insurance Company, to the amount of $2000, and gave no notice thereof to the secretary of the State Mutual Fire Insurance Company, whereby the policy became void.</p> <p>On the trial, the defendants’ counsel requested the court to charge the jury:</p> <p>1. That if Morris Roberts, the above-named plaintiff, obtained the insurance as alleged in the defendants’ last plea, without giving notice, as alleged in said plea, and not causing the same to be endorsed on the policy issued by the State Mutual Fire Insurance Company, he is not entitled to recover.</p> <p>2. That if Morris Roberts, the above-named plaintiff, obtained the insurance as alleged in the last point, and is entitled to recover at all, he can only recover such proportion of the loss or damage to the property insured as the amount insured by said State Mutual Fire Insurance Company, defendants, shall bear to the whole amount insured thereon, without reference to the dates of the different policies.</p> <p>The court below (Hampton, P. J.) answered these points in the negative; to which the defendants’ counsel excepted; and a verdict and judgment having been given for the plaintiff for $2762.50, the defendants removed the cause to this court, and here assigned the same for error.</p>

These were two actions of covenant by John Algeo & Co. against the Merchants’ Insurance Company of Philadelphia, on a policy of insurance on four ice-boats, from Freeport, Pennsylvania, to Nashville, Tennessee.

<p>Error, to the Common Pleas of JErie county.</p> <p>This was an action of assumpsit by the Phoenix Oil and Candle Company of New York against the North Western Insurance Company, on a policy of insurance issued by the defendants on the 6th December 1854, whereby they insured the plaintiffs, for the term of one year, against loss or damage by fire, to the extent of $2500, on their steam boiler, steam-engine, &c.</p> <p>A by-law of the defendants, which was annexed to and made a condition of the policy, provided as follows : — “No suit or action at law or equity, shall be sustainable against this company upon or by virtue of this policy, unless the same shall be brought within six months from the time of the loss or damage by fire; and after the expiration of six months from such fire, such lapse of time shall be conclusive evidence against the validity of any claim under this policy.”</p> <p>The property insured was destroyed by fire on the 25th March 1855, and this suit was brought on the 10th March 1856.</p> <p>On the trial, the defendants’ counsel requested the court to charge the jury :—</p> <p>“ That the plaintiff cannot recover under the evidence in this case; because the suit was brought more than six months after the loss by fire, contrary to the 9th article of the by-laws attached to the policy.”</p> <p>The court below answered this point in the negative; to which the defendants excepted; and a verdict and judgment having been rendered for the plaintiffs for $2875, the defendants removed the cause to this court, and here assigned the same for error.</p>

<p>Error, to the Common Pleas of Fayette county.</p> <p>This was an action of assumpsit by Louisa Johnston against Eli Abrams, administrator of George Johnston, her deceased husband, to recover a sum of $500, alleged to have been received by George Johnston, in his lifetime, from his wife’s separate estate.</p> <p>The plaintiff was married to George Johnston, the defendant’s intestate, some time prior to the year 1847. She was entitled to a sum of $500 from her father’s estate, one-half of which was paid to her husband in the fall of 1847.</p> <p>The other half of the money was received by Johnston in December 1848. At that time, the parties resided in the country. Johnston had bought property in Brownsville, and, at his wife’s instance, he repaired and fitted up one of the houses, with the money received from her estate in 1848. They afterwards moved into this house, and resided there.</p> <p>On the trial, evidence was given that Johnston was a man of intemperate habits, which had caused much domestic ill feeling; and that, at various times, he had expressed his intention of repaying the money received from his wife’s estate.</p> <p>The court below (Gilmore, P. J.) charged the jury as follows:— “ The money which the plaintiff alleges she has a right to recover from her husband’s estate was received by him in part before, and part since, the Act of April 1848. There is no question that the money received by the husband belonged to her; it was derived directly from the sale of her real estate. The money which the husband received in December 1848, was not, by the act of receiving the same, made the property of the husband; it remained, without any act or declaration of the husband, still the property of the wife; but, in respect to this part, it is alleged that it was appropriated to the fitting up of a home at her particular request. We charge you, if you believe from the evidence that this money was appropriated in this way at her request, and that it was her own act and wish, intended for her comfort and that of the family, she cannot now recover it. The previous written consent is not required by the Act of 1848 for a disposition of this kind. In respect to the money received by the husband before the Act of 1848, it is in a different category. Before this act, when money of the wife came into the possession of the husband, it became his absolutely, unless there was a contrary intention; and the Supreme Court has said, in more than one case, that reduction into possession was still subject to the expressed intention of the husband.”</p> <p>The jury subsequently came into court, and requested t.he learned judge to give them more specific instructions on one point; that is, supposing that the wife did allow the money to be appropriated to the fitting up of the house, whether his agreement after-wards to pay it would be binding upon the intestate. The court, in answer, said, “ If you are satisfied he distinctly made such a-promise or declaration of intention, there was a sufficient consideration to support such a declaration; but you must be satisfied that, in the declaration he made, he referred to this money received before the Act of 1848, as well as what was received after.”</p> <p>To this latter instruction the defendant excepted; and the jury having rendered a verdict in favor of the plaintiff, for $>575.33, and judgment having been entered thereon, the defendant sued out this writ, and here assigned such charge for error.</p>

This was an action of assumpsit by John W. Veach against John M. Irvine, administrator de bonis non of Dr. John Mitchel-tree, deceased, to recover a sum of $200, paid by the plaintiff into the Western Reserve Bank, for the use of the defendant’s intestate. On the 23d December 1846, the plaintiff paid into the Western Reserve Bank $200, which was placed to the credit of Dr. John Mitcheltree, for his use.

<p>In trespass for mesne profits, compensation is the proper measure of damages; and the defendant may in such action be allowed for the value of permanent improvements erected, not by himself, but by one whose title he has purchased.</p> <p>One who forcibly disseises another and makes improvements, or who makes them after action brought to try the title, is not to be allowed for such improvements.</p> <p>But a bond fide occupant under claim of title, who makes permanent and valuable improvements, is entitled to have them taken into account in ascertaining whether or not the real owner has sustained any damage; and may show that they are a full compensation for the value of the property.</p>

This was an action of debt, by Sarah Klingensmith and John Klingensmith, her husband, for the wife’s use, against P. Klingensmith, executor of John Klingensmith, Jr., deceased, on a note under seal, for the payment of $169. Sarah Klingensmith, prior to her marriage, loaned $169 to A. Klingensmith; and for this sum he gave the note in question, dated the 5th April 1854, with John Klingensmith, Jr., and Henry Knappenberger, as sureties.

<p>Error to the Common Pleas of Indiana county.</p> <p>This action was originally brought before a justice of the peace, Dy Robert Getty against David Williams, to recover for the breach of the defendant’s contract to employ the plaintiff’s team of horses and driver. The defendant appealed to the Common Pleas, from the judgment of the justice.</p> <p>David Williams, the defendant, was a contractor on the Northwestern Railroad. During the year 1856, the work was carried on by John O’Leary, who acted as his general manager.</p> <p>On the 5th May 1856, O’Leary made a contract with Getty, the plaintiff, for the labour of a two-horse team and driver, in the prosecution of the work, for a period of four to five months, at $3.50 per day. After working for 17-2- days, O’Leary discharged the driver, without cause, paying him for the time he had worked. The team remained idle for 19J days, before the plaintiff could find other employment for it. And this action was brought to recover damages sustained by reason of the defendant’s breach of contract.</p> <p>On the trial of the cause, the court below (Burrington, P. J.) charged the jury as follows :—</p> <p>“ If a man appoint an agent with general power to transact any business, the acts of the agent are the acts of the principal, in any matter within the terms of his authority; and if the principal holds the agent out to the world as a general agent in the transaction of his business, any contract he would make within the scope of that business would be binding on the principal, although there might be, as between the principal and agent, a restriction upon the general authority of the latter, and the person with whom the contract was made had no notice of such restriction. It is not to be expected, that persons dealing with an agent carrying on a general business, such as a general manager of a contractor on a railroad, would be bound to inquire the particulars of the agent’s appointment and authority, when he is held out to the world as such general agent, particularly when the principal has been back and forward inspecting the progress of the work, and making no objection, nor giving any notice of the restricted authority of such agent. A different rule would enable the principal to affirm or deny at pleasure. If the contract was a favourable one, he could ratify it, and hold the other party liable; if unfavourable, he could repudiate it and escape from responsibility.</p> <p>“ In the present case, if the jury believe O’Leary was a general agent and manager, to manage and conduct the work, and employ hands, and he made a contract with the plaintiff to do work on the section for a specified time, and at a specified price, we think the contract a good one, and binding on the defendant.</p> <p>“ The question next to be considered is, was there a special contract ? This is for the jury. If they believe there was, they will then determine whether that contract was violated by the defendant, by discharging him before the expiration of the time specified by the contract. If so, the defendant would be liable for damages. The evidence shows that the team was out of employment in consequence of the discharge, some nineteen, or nineteen and a half days; when it was otherwise engaged. If the jury believe this, then the loss to the defendant would be the wages of the team agreed upon during that period.</p> <p>“ But, if there was no authority to the agent, or special contract, then the evidence shows that the plaintiff was paid for the work done, and the verdict should be for the defendant.”</p> <p>To this charge the defendant excepted; and a verdict and judgment having been given for the plaintiff for $75.41, the defendant sued out this writ, and here assigned the same for error.</p>

This was an appeal by Joseph Patton from the decree of the Register’s Court, refusing to vacate letters of administration granted to Martha Blair, on the estate of Robert Blair, deceased. On the 8th March 1854, the will of Robert Blair was duly proved, and letters testamentary issued to Joseph Patton and Hugh McMasters, the executors. Martha Blair, the widow, appealed to the Register’s Court; and an issue devisavit vel non was sent to the Common Pleas.

Error, to the Common Pleas of Crawford county. This was an issue devisavü vel non, directed by the register of Crawford county, to try the validity of a paper propounded for probate as the will of Robert Blair, deceased, in which John McMasters was plaintiff, and Martha Blair defendant. There was a verdict against the will; but on error to this court the judgment of the Common Pleas was reversed, and judgment was here entered in favour of the plaintiff, with costs.

This was an action of debt originally brought before a justice of the peace by John McCue, Sr., and John McCue, Jr., against John Cunningham, to recover the penalty prescribed by the 15th section of the Act 20th March 1810, for neglecting to enter satisfaction on a judgment obtained before another justice, by the present defendant against the plaintiffs: Brightly’s Burd. 490, pi. 85.

This action was originally brought before a justice of the peace by J. M. Gilchrist and George Duncan against Peter Kraft and Samuel Lightner. The summons was issued in debt on book account, and the plaintiffs’ claim before the justice was stated to be $43.50 for a lot of spars.

This was an ejectment by David Postlethwait against Henry Frease and others, for a tract of 100 acres of land in Potter township. The plaintiff had the legal title to the land in controversy; the defendants claimed under Jacob Young, to whom, it was alleged, the, plaintiff had contracted, by parol, to sell the premises. The nature of the evidence on which the defendants relied as proof of an executed parol contract, is sufficiently set forth in the opinion of the court.

<p>Error to tbe Common pleas of Westmoreland county.</p> <p>This was an action on the case by W. S. Caldwell against Robert Eulton, for digging and taking 20,000 bushels of stone coal from under his lands.</p> <p>On the 27th May 1831, James Caldwell, the ancestor of the plaintiff, was the owner of the locus in quo, and on that day he conveyed to one George Greer, 16 acres of the tract, lying on the ^Youghiogheny river; and “ also, the full right, title, and privilege of digging and taking away stone coal, to any extent the said George Greer may think proper to do, or cause to be done, under any of the land now owned and occupied by the said James Caldwell; provided nevertheless, the entrance thereto, and the discharge therefrom, be on the foregoing described premises.”</p> <p>On the 23d March 1842, George Greer conveyed an undivided moiety of the said tract of land, and one-half of the coal, to Butler Case; who, on the 20th January 1844, conveyed his interest to William McCune.</p> <p>The other undivided moiety, by sundry conveyances, became vested in Thompson Bell; and on the 7th June 1848, Bell and McCune made partition by deedr</p> <p>The defendant, under a lease from McCune, entered and dug the coal in question; and to recover damages for the taking of it, this suit was brought by the plaintiff, who claimed by devise from his father, James Caldwell.</p> <p>A former suit for the same cause was before this court in 1855, on which occasion the following opinion was delivered by</p> <p>Woodward, J. — This was an action of trespass, for taking coals from the land of the plaintiff. He claimed the locus in quo, by devise from his father, James Caldwell. The defendants justified under George Greer, to whom James Caldwell made a deed, in his lifetime, for the coals taken, and as the judgment to be entered in this case must depend on the construction of that deed, it is important to obtain, at the threshold, a clear and comprehensive view of its terms.</p> <p>The deed was dated on the 27th May 1831; acknowledges a consideration of one thousand eight hundred dollars, is to George Greer, his heirs and assigns, for all the therein “ desci'ibed property, situate on the east side of the Youghiogheny river,” and then describes by metes and bounds, two parcels of land, one of which contains six acres and forty-seven perches, the other ten acres and fifty perches. The grant of coal then follows, in these terms: — “ Also, the full right, title, and privilege of digging and taking away stone coal, to any extent the said George Greer may think proper to do, or cause to be done, under any of the land now owned and occupied by the said James Caldwell; provided, nevertheless, the entrance thereto, and the discharge therefrom, be on the foregoing described premises.” ■ In the habendum the property conveyed is called two lots or parcels of land, and the “ aforesaid right to the stone coal,” and is so designated again in the covenant of warranty. Such was the original grant.</p> <p>On the 23d March 1842, Greer and wife conveyed an undivided half of the premises to Butler Case, and the other half to John B. McCune. January 20th 1844, Butler Case conveyed to William McCune. December 5th 1844, John B. McCune conveyed his moiety to Thompson Bell. By deeds, bearing date the 7th June and the 30th August 1848, Bell and William McCune made partition between themselves of the sixteen acres, according to agreed lines, and of the coal lying back of said lots, under the Caldwell farm, in a manner corresponding with the partition of the lots.</p> <p>In August 1852, William McCune leased to Fulton and the other-defendants his several part, both of the lots and the coal; and it was the entry upon the coal, under this lease, for which the suit was brought. It does not appear, from the record, whether any opening had been made into the coal, on the part of the premises set off to McCune, but it is stated that the opening on Bell’s portion of the ten acre piece has not been worked since Fulton commenced working the coal on McCune’s part.</p> <p>The court below seems to have been at a loss whether to denominate the grant of coal in Caldwell’s deed to Greer a common in gross, or appurtenant, or a license, but were clear that it was not an absolute grant of all the coal under the plaintiff’s land.</p> <p>A license it cannot be. The form of the conveyance excludes that. License is defined to be a power or authority given to a man to do some lawful act, and is a personal liberty to the party to whom given, which cannot be transferred over, but it may be made to a man or his assigns: Tomlin s Law Lio. Because a mere license to enjoy a privilege in land is not an estate therein, it may be granted without deed, and even without writing, notwithstanding the statute of frauds. But here an estate or interest was evidently intended to be conveyed, and it must have been either a corporeal or an incorporeal hereditament. Whether the one or the other, it was assignable by the very terms of the grant, but, if incorporeal,\,I agree it was not divisible Bell and Mc-Cune were capable or taking, as assignees ot me original grantee, but they were bound to hold, enjoy, and convey the hereditaments as an entirety, and when, by mutual conveyances, they parted it into severalty, and extinguished thus, each his moiety, they could no longer hold by entirety, and, therefore, could not hold at all. Lord Mountjoy’s Case, which has often been recognised as good authority, contains all the principles necessary for the decision of this case, if the thing granted be regarded as an incorporeal interest. That case, as reported in Q-odbolt, was thus: — Lord Mount-joy, hy deed, sold and conveyed the manor of Camford, to Brown, in fee, with a proviso in the indenture that contained Brown’s covenant, “that Mountjoy, his heirs and assigns, may dig for ore within the land in Oamford, which is a great waste, and also to dig for turf there, to make alum and copperas, without any contradiction of the said Brown, his heirs and assigns.”</p> <p>Three tilings were resolved:—</p> <p>First. That Lord Mountjoy could not divide the said interest so as to grant to one to dig in one parcel of said waste, and to another to dig in another parcel thereof.</p> <p>Second. That notwithstanding the proviso, Brown, his heirs and assigns, owners of the soil, might dig there also; like to the case of common sans nombre.</p> <p>Third. That Lord Mountjoy might assign his interest, but if there were several assignees they could not work severally, but must work together, with one stock, else there would be a surcharge to the tenant of the soil.</p> <p>The reservation in that case was very indefinite, “ to dig for ore and turf, in a great waste, to make alum and copperas.” There could be no livery, no corporal tradition of the thing granted, and if the terms of Greer’s deed import no more than' is contained in Mountjoy’s reservation, Bell and McCune could work with only one stock, and might not surcharge the owner of the surface by introducing an indefinite number of distinct operations.</p> <p>But was this the grant of no more than an incorporeal hereditament ? Caldwell reserved no interest himself. He sold for a valuable consideration, all he had in the sixteen acres, and all the coal in his other land. I say all, because the grant is limited to no time, or quantity, or purpose] or- person. The full right to take stone coal to any extent the grantee, his heirs or assigns, may think proper to do, or cause to be done, are not, perhaps, the best chosen words for describing the corpus ; but what less than the whole of the coal can they be construed to mean ? If not the whole, how much coal is granted ? Can a reservation to the grantor be implied, in the face of terms so large ? That were to reverse the maxim that deeds are to be taken most strongly against the grantor. The will of the grantee was the measure of the grant. Not only he, his heirs and assigns, were to take ad libitum, but might cause to be taken, without stint. The grantee might plant a miner on every available foot of the coal, under that deed. There was one only condition, that the entrance to the coal, and the discharge therefrom, should be on the sixteen acres, and because this was expressed, no other was intended. JExpressio unius exclusio alterius. Subject to that condition alone, the grantee was invested with complete dominion over the coal. What room was left for the grantor ? Might he too mine coal ? Assuredly not, against the consent of his alienee, for he had sold all the coal that alienee might think proper to take, or cause to be taken. And if the grantor might not mine of right, then the grant was total; he might not take a part, because he had conveyed the whole. There are many untechnical words, which, receiving an interpretation according to substance, are held to vest effectual estates. Thus a grant of the profits, or income, or rent and issues, or acceptation and profit, or free use, or the right to dispose of, or to give or sell, or to dispose of at will or pleasure, or to do his will therewith, or to be at his discretion, or to be freely enjoyed, are sufficient to pass the title out of which such rights are to flow, or over which such powers are given, where no evidence of a contrary intention is furnished by the instrument itself: 1 Salk. 228; 5 Mod. 63, 98, 101; Oro. Miz. 190; Oro. Jac. 104; Plowd. 541; Viner Abr. (Devise II.); 9 Mass. B,. 372. It was in relation to such grants that Gibson, C. J., said in Morris v. Phalen, 1 Watts 390, “ it is an undoubted rule, that the bequest of a general power of disposal carries the absolute property, whenever a limited interest is not given. For such a "power, being a principal attribute of ownership, necessarily implies the existence of it, whenever the implication is not rebutted by the bequest of a special interest inconsistent with it.” These are principles in the construction of wills, but equally applicable to deeds, except in those instances where inflexible rules of law demand certain words of perpetuity, to create more than estates for life. For these reasons, drawn both from an analysis of the deed itself, and from the principles of interpretation, as applied to written instruments, we conclude that Caldwell sold and conveyed to Greer the absolute and exclusive right to all the coal under his land; and from this it must necessarily follow, it was a corporeal, and not an incorporeal interest. An exclusive right to all the coal, to be taken, without limitation, except as to the point of ingress and egress, is a sale of the coal itself; and there is nothing incorporeal about coal. It is included in the definition of land, and those hereditaments only are incorporeal which are not land. Rent is the best definition of an incorporeal hereditament; it issues out of the thing corporate, but is no part of it. The thing is as perfect after render of the rent, as before. So common of pasture is a right issuing from land, without diminution of the source; common of estovers, of turbary, and of coals, are not, strictly speaking, incorporeal, for they are not so much the produce of lands annually renewable, as they are part of the land itself. But these are always appendant or appurtenant to a particular tenement, and, as a classification, cannot comprehend coal mines which are worked for purposes of trade and profit. And to none of these distinctions in the law of common can this grant be referred, if we are right in holding it to be exclusive in the grantee and his assigns. It is their close, as much as if it were land. This point was ruled in Wilson v. Mackreth, 3 Burr. 1825. The action there was trespass for entering plaintiff’s close, and digging and carrying away turf and peat. The objection was, that the remedy should have been case, as the plaintiff did not own the soil. But all the judges held the action would lie, because the plaintiff had an exclusive right to the turf and peat.</p> <p>Can it be doubted that these defendants might maintain trespass and ejectment against intruders into their mines? It has been often ruled in England, that trespass and ejectment will lie in respect to open coal mines, for of these there can he possession; but mines not opened, when held by another than the owner of the soil, are sometimes said to be incorporeal, because they lie in grant, and are not susceptible of livery of seisin. With us, delivery and registration of the deed stand in lieu of livery, and there is no ground or reason for maintaining an embarrassing distinction in respect to this very important, kind of property.</p> <p>It is a common thing, in the mineral districts of Pennsylvania, for the surface to belong to one owner, and the coal which it covers to another. Both the surface and the coal are held by deeds, executed and delivered, and recorded in the same manner; and there is no more reason for considering the coal an incorporeal hereditament, because it has not been opened, than there is for considering the soil such, because it has not been ploughed. Still less reason is there for calling it an incorporeal hereditament, if the deed happen to describe the grant as a right to enter, dig, and carry away all the coal, instead of describing the coal without the customary circumlocution. In all these cases, where the right, rather than the thing, is described, nobody is at a loss to know ■what is intended to pass. It is the thing that is bought and sold. And where that is a coal bed, it is an abuse of language, and an unnecessary application of legal distinctions, to call it an incorporeal hereditament. Some late English cases indicate an inclination in their courts to treat these mine rights, as we think they should be treated, as corporeal hereditaments. In the case of Humphries v. Brogden, 1 Law ¿-Equity R. 241, the action was on the case, by the surface owner against the mine owner in an adjoining lot, for removing the subjacent mineral strata, w'hereby the natural support of the plaintiff’s lot was taken away, and it subsided, greatly to his injury; and in Jeffries v. Williams, Id. 433, the facts were similar. Throughout both cases, the mine right, severed from the ownership of the soil, was regarded as a separate close, and compared to the lower story of a building, which the owner is bound to keep in a suitable condition to support the upper stories, owned by others, as the owner of the upper story is bound to maintain the.roof, for the protection of all below him.</p> <p>It may be thought somewhat incongruous to apply the name of land to both the surface and the underlying mineral strata, where they have been severed in title; but it is more incongruous still to treat the surface as a corporeal hereditament, and the mine right, when granted in terms so large as to comprehend the whole mineral deposit, as incorporeal.</p> <p>It would be more according to analogy to consider the surface an incorporeal interest, for it is the production of that which ordinarily makes it valuable. Whilst its natural fruits are reaped, the soil itself is not removed. Not so of stone coal. The corpus itself is taken, and that is a more real and substantial interest than the fruits of the surface. If the surface be a corporeal hereditament, much more must the mineral substratum he. And regarding them both as land, and applying to both the same legal remedies, we hold the owner of each to the maxim, sic utere tuo ut alienum non Icedas, and to all the obligations of good neighbourhood; whilst, by maintaining a distinction between them, which has ceased to have foundation, we embarrass the respective owners in the exercise of their rights, and ourselves in the application of legal remedies.</p> <p>We hold, in conclusion, that the parties to the deed of May 27th 1881, intended an absolute and exclusive grant of all the coal under the grantor’s land; that though severed from the surface, it was still a conveyance of land, and not a mere license or common. The consequence is, that the grantees held it as other real estate is held, and might part it among themselves, as land is divided; and that the defendants, entering in pursuance of such partition, were not trespassers, and ought to have had the judgment.</p> <p>The judgment is reversed, and judgment is entered for defendants for costs.</p> <p>On the trial of the present suit, the plaintiff offered to prove by parol, the circumstances under which the original purchase was made, the motives which prompted it, together with the opinion of the parties, at the time, as to the extent of the interest conveyed. The original articles of agreement were also offered in evidence for the same purpose.</p> <p>The court below rejected this evidence, to which the plaintiff’s counsel excepted; and the learned judge having directed the jury to'find for the defendant, and a verdict and judgment having been rendered accordingly, the plaintiff sued out this writ, and here assigned for error the rejection of the evidence offered on the trial, and the charge of the court below.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of assumpsit by The Pittsburgh and Steubenville Railroad Company against Elizabeth Graff, executrix of Henry Graff, deceased, to recover $5000, for one hundred shares of the stock of the said company, subscribed for by the said Henry Graff, in his lifetime. The defendant pleaded non assumpsit, and payment with leave, &c.</p> <p>On the trial, the plaintiffs called S. E. Yon Bonnhorst, who testified as follows:—</p> <p>“ I am secretary of the Pittsburgh and Steubenville Railroad Company; have been since January 1855; I have the control of all the books and papers of the company, and have made most diligent search for all the original subscription books to the stock of the company, and especially for the one that I supposed contained the subscription of Henry Graff in connection with others, but could not find it; I have inquired of parties connected with the company prior to my time, for such a subscription book, and all the information I could get, was, that such a book had been in existence, but I could get no clue to its whereabouts; I made inquiry of every person that I supposed would have any knowledge of the matter. This is the minute book of the Pittsburgh and Steubenville Railroad Company. I understood from Mr. Hill that there was such a book; he was treasurer of the company and a stockholder.</p> <p>“I understood it from Mr. Woods, the former president, that there was a book containing the subscription of the canal men, Bingham & Co., Henry Graff, Clarke & Thaw, and Hays & Black, and Mr. Woods said he subscribed in his own handwriting to the Stock of the company, but there is no such book in the possession of the company; I inquired of Captain Naylor, the former secretary, he said there was such a book, and insisted that it was in the possession of the company; but no such book could be found; he resides at Washington City.”</p> <p>The plaintiffs then offered secondary evidence, the nature of which is fully set forth in the opinion of the court, to prove: — 1. That Henry Graff did subscribe for 100 shares of the stock of the Pittsburgh and Steubenville Railroad Company. 2. That he was estopped from denying that he had so subscribed. This evidence was admitted by the court, and excepted to by the defendant.</p> <p>The defendant offered evidence to prove that she was entitled to a credit of $4000 for 80 shares of stock transferred by her testator to E. M. Stanton. The court below ruled out this evidence, and sealed another bill of exceptions.</p> <p>The defendant’s counsel submitted the following points, upon which they requested the court below to charge the jury:— •</p> <p>“ 1. That the transfer of stock held by an original subscriber in a railroad company, indebted to said company in no other manner than by his subscription for such stock, and who at the time of such transfer has promptly met and paid all calls for payment on such stock, when such transfer is made on the books kept by the company for that purpose, in person, or by attorney duly authorized, in the presence of the president or treasurer of such company, without objection by such president or treasurer of such company, the consent of the board of directors off such company to such transfer may be legally implied or inferred by the jury from such facts, and such transfer is valid and legal, and discharges such original subscriber from all further liability arising from such subscription.</p> <p>“ 2. That the act of the treasurer suffering such transfer to be made is valid and sufficient evidence of the assent of the .board of directors to such transfef.</p> <p>“ 3. That the transfer of stock, under the circumstances enumerated in the two preceding points, will have the effect of discharging liability incurred by the owner thereof prior to such transfer.</p> <p>“4. That stock subscribed for and not paid up, and not due or called for, is such a liability as would be discharged by such transfer.</p> <p>“ 5. That the evidence in the cause does not sustain or prove the material allegations in the plaintiffs’ declaration, and that the plaintiffs are consequently not entitled to recover.</p> <p>“ 6. To make out the case under the pleading,- plaintiffs must prove to the satisfaction of the jury, that Henry Graff was an original subscriber in the books of the commissioners for one hundred shares of stock. It is not enough to show that he was a holder of that amount of stock.</p> <p>“ 7. Unless the jury believe that the original contract and undertaking of Graff was to and with the Pittsburgh and Steubenville Railroad Company, and not a mere promise to subscribe so many shares for the purpose of connecting Pittsburgh by a railroad with the Steubenville and Indiana Railroad Company, their verdict should be for the defendant.</p> <p>“ 8. If the jury believe that the lists of subscribers and stoekholders-made out and exhibited from time to time, to the governor of the Commonwealth, and to the mayor of the city of Pittsburgh, for the purpose of obtaining a charter from the governor, and a subscription of stock from said city, were not bond fide and truthful transcripts from the books of the commissioners and the treasurer, representing actual subscriptions and payments on account of the capital stock — made and received in pursuance of law — such lists and such exhibitions and use of them were fraudulent; and whether Henry Graff was a party to such frauds or not, the plaintiffs, being a party, cannot make use of them here for the purpose of recovering against the defendant.”</p> <p>The court below (Williams, J.) declined so to charge, and instructed the jury, that, upon the authority of the case of The Pittsburgh and Steubenville Railroad Company v. Clarke & Thaw (erroneously reported in 5 Qasey 146, as The Pittsburgh and Connelsville Railroad Company v. Clarke & Thaw), a case in all respects like the present, the plaintiffs were entitled to recover.</p> <p>To this charge the defendant excepted; and a verdict and judgment having been rendered for the plaintiffs for $>5745.23, the defendant removed the cause to this court, and here assigned for error: 1. The admission of secondary evidence of the subscription of Henry Graff. 2. The rejection of the evidence of the transfer of 80 shares to E. M. Stanton. 3. The refusal to charge as requested in the points presented by the defendant.</p>

<p>An agreement, in the submission of a pending cause to arbitration, that the award shall be “final and conclusive/'’ is subject to the implied condition that the award be made according to the submission.</p> <p>Certainty and finality are two essential requisites to constitute a good award.</p> <p>If the submission require, or even authorize, judgment to be entered on the award, the latter must be so definite, and of such a character, that it can be enforced by execution.</p> <p>Referees are restrained, when not expressly empowered by the submission, from doing what a jury may not do.</p> <p>This court does not revise the reasons given by the Common Pleas for setting aside an award; it is enough, that the court below came to a right conclusion.</p>

<p>Appeal from the Common Pleas of Crawford county.</p> <p>This was an appeal by Henderson, Kirtland, North and Platt, from the decree of the Court of Common Pleas, distributing the money raised on two executions against George W. Townley; one of them a fieri facias, at the suit of John N. Osborn, and the other an attachment execution at the suit of the appellants, served on Thornley, as garnishee of John N. Osborn.</p> <p>In the spring of 1837, certain New York creditors of John N. Osborn, forwarded their accounts for collection to H. L. Richmond, their attorney in Meadville. And on the 30th March, Osborn executed and placed in the hands of Mr. Richmond, the following assignment:—</p> <p>“For and in consideration of my indebtedness to the firms and individuals hereinafter named, all of New York city, I hereby assign and transfer to them, that is to say, to P. P. Shaw & Co., Hull & Argalis, Phillips, Bixley & Co., M. Armstrong & Son, Gordon & Fellows, Amidon, Smith & Co., Stewart, Cushing and Higerman, Bramhall, Bennett & Richmond, Gage, Sloan & Dater, Henderson, Kirtland, North §• Co., Denison, Williams & Co., and J ames Brannon, the following notes, accounts, &c., viz.:</p> <p>Note of Theodore S. Minniss, dated Dec. 1, 1856, $23.00</p> <p>Wm. & H. C. Davis, “ July 29, 1857, 660.62</p> <p>“ William Black, “ July 20, 1857, 36.60</p> <p>“ O. H. P. Herrington, “ July 19, 1856, 30.00</p> <p>“ I. & M; Hilhronnei-, “ Nov. 25, 1857, 900.00</p> <p>“ George S. Stewart, “ Nov. 27, 1857, 47.32</p> <p>“ T. Hi Higgins, “ Jan. 24, 1857, 11.50</p> <p>“ R. Morris, “ Mar. 24, 1857, 158.28</p> <p>“ J. C. Hays, “ Feb. 15, 1857, 36.52.</p> <p>“ Sundry accounts, due-bills, &c., a list hands of Mr. Richmond, amount, $1133.42 — amounting in all to $3,92723. The avails of which my said creditors are to distribute among themselves in proportion to their several claims, of which is in the saving that P. P. Shaw & Co. are to receive nothing until the other creditors named have received an amount proportionate to that paid Mr. Shaw, in notes of Hilbronner’s when here.</p> <p>“March 30, 1857. “Jno. N. Osborn.”</p> <p>Mr. Richmond represented all the creditors named in this assignment, with the exception of the appellants.</p> <p>At the same time, Osborn made out a list of small accounts owing to him, amounting in the aggregate to $1133.43, among which was a claim against George W. Townley of $104; and on this list he made following endorsement:—</p> <p>“ I assign to H. L. Richmond, this list of accounts for the use named in his receipt to me of this date.</p> <p>“March 30, 1857. “John N. Osborn.”</p> <p>Townley’s account, at this time, was, with others, in the hands of A. B. Richmond, Osborn’s attorney, for collection, who was duly notified of the assignment, and subsequently obtained judgment against Townley, on which one of the executions in question was issued.</p> <p>The appellants declined to come in under the assignment, and having obtained judgment against Osborn, they issued an attachment execution which was served on Townley as garnishee.</p> <p>On application of Townley, the court stayed proceedings on both writs, gave him leave to pay the money into court, and subsequently awarded the fund to the parties named in the assignment of the 30th March 1857; and from this decree the present appeal was taken.</p>

Error, to the District Court of Allegheny county. This was an action of assumpsit by Benjamin Ooursin against Samuel Gormley and John Willock, administrators of George Ledlie, deceased, on a bill of exchange for $3000, drawn by the plaintiff on the defendants’ intestate, and by him accepted. The following is a copy of the instrument on which the plaintiff brought suit:— “ Mr. George Ledlie, “ Sir: Please pay to Wm.

<p>Error to the District Court of Allegheny eounty.</p> <p>This was an action on the case by James Lynn against William H. Brown, for carelessly, negligently, and unskilfully mooring certain coal barges of the defendant in the current of the Monongahela river, above a certain flat-boat of the plaintiff, by reason whereof the said barges were forced from their moorings, and driven by the current against the plaintiff’s flat-boat, which, with its cargo, was sunk and destroyed. The defendant pleaded not guilty.</p> <p>In the latter part of 1854, certain barges belonging to William II. Brown, the defendant, were moored at Dalzell Landing, on the Monongahela river. James Lynn, the plaintiff, had moored certain flat-boats immediately below the defendant’s barges. The river rose with unparalleled rapidity during the night, the lines by which Brown’s barges were moored gave way, and one of ■ the plaintiff’s flat-boats was sunk.</p> <p>On the trial, there was much contradictory evidence as to the sufficiency of the defendant’s fastenings.</p> <p>The defendant offered to prove that the ground to which the plaintiff’s boat and the defendant’s barges were fastened was in the possession of the defendant, as tenant of John Dalzell, and that the plaintiff fastened his boat there without the defendant’s permission, thereby committing a trespass on the defendant’s property. To this offer the plaintiff objected as irrelevant.</p> <p>Per Guriam. — “ The defendant’s offer is simply to show that the plaintiff tied up his boats to a rock, on the ground leased by defendant from Dalzell, without first obtaining permission. It is already in evidence that plaintiff’s boats were moored and tied with the knowledge of defendant. This was an implied permission, and unless the defendant offers to show that he refused permission, he cannot excuse himself for the consequences of his negligence by showing that permission was not asked and granted.”</p> <p>The defendant excepted to the rejection of this evidence, and the court sealed a bill of exceptions.</p> <p>The defendant’s counsel requested the court to charge the jury, inter alia, as follows : — ■</p> <p>“ 1. That if they find that the plaintiff was aware of the kind and character of the lines with which the defendant’s bai’ges were fastened, and if-he believed them insufficient to safely hold defendant’s barges, and with this knowledge and belief placed his boats immediately below defendant’s barges, then the plaintiff cannot recover.</p> <p>“2. That if plaintiff had full knowledge of the kind and amount of fastening which held defendant’s barges, and placed his boats' immediately below the barges, when he could have taken them to other places out of danger, then he took upon himself the risk, and if his boats were injured the same day, by the barges breaking loose, he is not entitled to recover.</p> <p>“ 8. That .if plaintiff removed his boats from the outside of defendant’s barges, where they had been fastened by a line to the shore, and placed them below the barges, knowing that the barges were in danger of breaking loose and injuring them, when he could have placed them out of danger, then he cannot recover, although the amount of care subsequently bestowed by the defendant was not sufficient to prevent the rising river from sweeping off the barges, and injuring plaintiff’s boat.”</p> <p>The court below (Williams, J.) charged the jury as follows:— “ The defendant was bound to use ordinary care, skill, and diligence in fastening his barges to the shore, where they were moored. He was bound to use ordinary care, skill, and discretion in selecting, and using a sufficient number of cables, and of sufficient strength for the purpose of fastening and holding his barges to the shore.</p> <p>“ Ordinary care, skill, and diligence, is such a degree of care, skill, and diligence as men of ordinary prudence, under similar circumstances, usually employ. If the danger be great and threatening, then a high degree of skill and care is requisite in order to avoid or prevent it; and in case of great danger, great care and caution will be but ordinary care. But if the' circumstances are such that but little risk or danger may be reasonably apprehended, then a much less degree of care will be ordinary care.</p> <p>“ The defendant, then, was bound to use care, skill, and prudence in tying his barges to the shore, and making use of all such means as a man of ordinary prudence would have used, in order to prevent the barges from breaking loose, and from being swept down by the current against other boats and crafts moored along the shore. If the defendant failed to use ordinary care, skill, and diligence to prevent the barges from being swept off by the current ; and if they were swept off by reason of defendant’s negligence in not securely fastening them in the first instance with proper cables, or in suffering the cables to he so worn by use, as to become defective and insufficient; and if, without any default on the part of the plaintiff, his boat was sunk in consequence of its being struck by defendant’s barges, then the plaintiff is entitled to recover in this action, for the injury thus occasioned by defendant’s negligence. But if the defendant used ordinary care, skill, and diligence in fastening and securing his barges, such a degree of skill and care as a man of ordinary prudence would have used under the circumstances; if he had his barges secured by a sufficient number of cables of sufficient strength, and if they were properly fastened to the shore, so as to be secure in the judgment of a man of ordinary prudence; and if they were properly watched and guarded by a competent number of hands, then the defendant would not be responsible for the loss of plaintiff’s boat, although it was sunk by defendant’s barges breaking loose and striking against it.</p> <p>“I cannot charge the jury as requested in defendant’s first, second, and third points, under the circumstances of this case. The plaintiff moored his boats, according to the evidence, early in the morning of the day of the accident, soon after the river had commenced rising. If the plaintiff knew that the defendant’s lines or cables were not sufficient to hold the barges in case the river should rise in the way it did, he was not bound to presume that the defendant would suffer his barges to remain with insecure fastenings during the rise, but he might presume that the defendant would use ordinary care in securing and fastening his barges, in order to prevent them from being swept off by the rise, and the plaintiff would be justified in acting upon this presumption; and if his boat was lost by the continued negligence of the defendant, in failing properly to secure and fasten his barges, after the river began to rise, he may recover.</p> <p>“ The defendant cannot set up his own negligence to shield himself from responsibility for plaintiff’s loss, if occasioned by his negligence. The rule for which defendant contends, would prevent the owners of boats from mooring them below boats insecurely fastened.”</p> <p>To this charge the defendant excepted; and a verdict and judgment having been rendered .for the plaintiff for $631.30, the defendant removed the cause to this court, and here assigned for error: 1. The rejection of the evidence that the plaintiff was a trespasser when he sustained the injury complained of. 2. The refusal to charge as requested in the defendant’s first, second, and third points.</p>

This was an action of trespass, quare clausum fregit, brought by Frederick Snyder against John Moorhead, Joseph Fitzpatrick, and Martin Heridity, for cutting a tail-race through the plaintiff’s land, to discharge the water from Moorhead’s tannery into Mill Creek. In 1834, William Clark was the owner of the lands of both parties; and on the 19th May in that year, conveyed 33 acres of the tract to Nathaniel McKelvey.

<p>A statute erecting a borough into a city does not, of itself, affect existing borough ordinances.</p> <p>A provision in such statute, that the existing borough ordinances shall remain in force, provided, that they shall be recorded within four months thereafter, is merely directoi’y; and a non-compliance thei'ewith does not affect the validity of such ordinances.</p>

This was an ejectment by Robert Orr against Francis J. Rupp and others, for the undivided moiety of a tract of 300 acres, in Wayne township. The tract in question was sold as unseated land, and purchased by the county commissioners in 1824.

<p>The sureties in a sheriff's official bond are not discharged from their liability for his default, by a recovery on the recognisance, and a sale of the sheriff's real estate under proceedings thereon, for a sum equal to the penalty of the bond.</p> <p>The sureties are bound, not that the sheriff will pay the penalty, but that they will be liable for his deficiencies to that extent; and they are only relieved by their payment, for his defaults, to the amount of the penalty of the bond.</p> <p>The bond and recognisance are distinct securities, and the sureties are not relieved by a recovery on one of them, which was paid out of the estate of their principal.</p>

<p>An administration bond, executed by only one surety, is void; and no action can be maintained on it.</p> <p>In such case, the letters of administration are void, and the person acting under them becomes a^jnistrator of his own wrong.</p> <p>The opening of a judgment by default, on terms that the case be tried on the merits, does not preclude the defendant from taking advantage of the invalidity of the bond sued on.</p>

This was an action of covenant brought by Joseph Spangler against David Walthour, who survived Christian Walthour, to recover the rent reserved on a lease, made by Samuel Spangler, as agent for his minor son, Joseph Spangler, to David and Christian Walthour, of a tavern, in the village of Jacksonville.

<p>The owner of beasts prone to commit trespasses, is liable in trespass for injuries resulting from such propensity.</p> <p>One having a qualified ownership, as an agister of cattle, is so liable.</p> <p>Where cattle are placed in the possession of another for agistment, the person having the absolute ownership is not liable, in trespass, for injuries done by them.</p>

<p>An insurance company of another state may lawfully send an agent into this state, to invite applications for insurance; and a premium note made and delivered to such agent is valid, and may be enforced against the maker.</p> <p>The remedy on such note, if sued upon in this state, is governed by our laws, and not by those of the state where the company is located.</p> <p>That suit was brought on the premium note, without the notice required by the charter having first been given to the maker, could only be pleaded in abatement.</p>

This was an action on the case by Mavy Ann Grim against Henry Brenneman and A. C. Hamilton, administrators of James Carr, deceased, for deceit.