Volume 33 — Pennsylvania State Reports

<p>Appeal in Equity from tbe Court of JSRsi Prius.</p> <p>This was a bill in equity by James Soohan, a minor and orphan, by his mother and next friend, against the City of Philadelphia and the Directors of the', Girard College for Orphans, for an injunction to restrain the defendants from admitting into the Girard College for Orphans, certain other persons, in preference to the complainant, who claimed a prior right under the will of the founder.</p> <p>The bill set forth that Stephen Girard, by his will, dated the 16th February 1830, gave and bequeathed unto the Mayor, Aider-men and Citizens of Philadelphia, certain portions of his estate, in trust to found a college for the maintenance and education of poor white male orphans, between the ages of six and ten years. And that he therein made the following provisions relative to the admission of orphans into the said college :—</p> <p>“4. On the application for admission, an accurate statement should be taken in a book, prepared for the purpose, of the name, birth-place, age, health, condition as to relatives, and other particulars useful to be known, of each orphan.</p> <p>“ 5. No orphan should be admitted until the guardians or directors of the poor, or a proper guardian or other competent authority, shall have given, by indenture, relinquishment, or otherwise, adequate power to the mayor, aldermen and citizens of Philadelphia, or to directors, or others by them appointed, to enforce, in relation to each orphan, every proper restraint, and to prevent relatives or others from interfering with, or withdrawing such orphan from the institution.</p> <p>“ 6. Those orphans, for whose admission application shall first be made, shall be first introduced, all other things concurring — • and at all future times, priority of application shall entitle the applicant to preference in admission, all other things concurring ; but if there shall be, at any time, more applicants than vacancies, and the applying orphans shall have been born in different places, a preference shall be given — -first, to orphans born in the city of Philadelphia; secondly, to those born in any other part of Pennsylvania; thirdly, to those born in the city of New York (that being the first port on the continent of North America at which I arrived); and lastly, to those born in the city of New Orleans, (being the first port on the said continent at which I first traded, in the first instance, as first officer, and subsequently, as master and part owner of a vessel and cargo.”)</p> <p>That the Mayor, Aldermen and Citizens of Philadelphia accepted the trusts contained in the will, and erected and furnished the college buildings. That by an Act of Assembly of the 27th February 1847, the guardians of the poor were authorized, with the consent of the surviving mother, guardian, next friend, or by their own authority, if there were no such mother, guardian, or next friend, of any poor white male orphan child within the said Commonwealth, between the age of six and ten years, for whose admission to the said college application should have been made, to bind such orphan child, by indenture, to the mayor, aldermen and citizens of Philadelphia, as trustees under the said will, as an orphan to be admitted into said college, to be there maintained and educated according to the provisions, and in the manner, and under all the regulations and restraints, directed or contained in the said will, or as the said trustees might lawfully ordain.</p> <p>That the said corporation by the select and common councils thereof, by an ordinance- or law passed 27th May 1847, provided for the appointment, from time to time, of a board of directors, and authorized the said board to superintend the organization and management of the said college, in conformity with the said will, and with such ordinances as the said councils should, from time to time, lawfully enact in relation thereto.</p> <p>That the said board of directors, so constituted and appointed, undertook the superintendence of the organization and management of the said college, and still continued such superintendence; and in execution thereof, they had admitted, and still, from time to time, admitted orphan children into the said college, for the purposes set forth in the said will.</p> <p>That at the time of making and of the probate of said will, and the said acceptance of the said trust, the territorial boundaries of ' the said corporation of the Mayor, Aldermen and Citizens of Philadelphia, were Vine and South streets, and the rivers Delaware and Schuylkill.</p> <p>And the complainant expressly charged, that orphans born within the said limits were entitled to admission into the said college, before those born in other places; and that one of the trusts declared by said will, and upon which the said corporation accepted the said bequest, was, that they should not admit into the said college, any orphan born outside of the said limits, while any orphan, born within said limits, was an applicant for admission therein, provided such orphan, in other respects, fell within the requisitions contained in said will.</p> <p>That by an Act of the 4th February 1854, the corporate name of the Mayor, Aldermen, and Citizens of Philadelphia, was changed to that of “The City of Philadelphia,” and the boundaries of the said city were extended so as to embrace the whole of the county of Philadelphia; and in the said act it was provided, that all the powers of the said corporation, as enlarged and modified thereby, should be exercised and have effect within the said county, and over the inhabitants thereof. And it was further provided by the said act, that all the estates and incomes, then held in trust by any of the corporations, which, by the said act, were merged into the corporation thereby created, should be held by the said corporation, “ upon and for the same uses, trusts, limitations, charities, and conditions, as the same are now held by the said corporations respectively.” And that the said corporation of the City of Philadelphia held the said trust for the said college, upon the same trusts and limitations, as the same was held by the said corporation of the Mayor, Aldermen and Citizens of Philadelphia.</p> <p>That the complainant was born on the 1st April 1850, im Water street, between Arch and Race streets, in the said city. That his father died on the 29th January 1853, without property, and leaving his family in destitute circumstances; and that since the death of his father, he had been supported by his mother, from the fruits of her own labour.</p> <p>That on 13th July 1857, his mother made application to the said directors, or the proper committee, for his admission into the said college; and that his mother was prepared, and has ever since been prepared to do and perform all things necessary to enable the said directors to enforce, in relation to him, every proper restraint, and to consent to the binding of him to the said the Mayor, Aldermen and Citizens of Philadelphia, as trustees under the said' will, as an orphan, to be admitted into the said college.</p> <p>That the said directors had refused to admit, and had resolved and intended to admit therein, to his exclusion, certain orphans, thereinafter named, some of whom applied for admission into the said college, subsequent to his application; and the balance were not born in the said city of Philadelphia, between Yine and South streets, and the rivers Delaware and Schuylkill.</p> <p>That the complainant had remonstrated with the defendants, and represented that he was entitled to be admitted into the said college before the admission of the above-named orphans, but the defendants insisted that, because the before-named orphans had lost both father and mother, they were entitled to admission into the said college before, and to the exclusion of the complainant, notwithstanding the fact, that all thereof applied for such admission after he had applied, or were born out of the aforesaid city of Philadelphia; because the complainant had lost but his father, and because his mother was still alive; and they said that the said will and trusts required that they should admit no one into the said college, except those who had lost both parents; and, that none other than such were orphans.</p> <p>But the complainant insisted and prayed the court to decide that poor white male children, between the ages of six and ten, who are fatherless, are orphans, and are entitled to admission into the said college, if they are, in other respects, qualified; and that such, aforesaid, as have first made application, are first entitled to admission.</p> <p>And that the defendants might be restrained by injunction from admitting into the said college, the other orphans therein named, to the exclusion of the complainant; and from further refusing to admit the complainant therein.</p> <p>The answer admitted the truth of the facts set forth in the complainant’s bill; and the cause having been heard, on bill and answer, the court below made the following decree in favour of the complainant: — ■</p> <p>And now, to wit, January 15th 1859, the cause having come on to be heard on bill and answer, it is ordered, adjudged, and decreed by the court, that under the provisions of the will of the said Stephen Girard, and for the purposes thereof, a fatherless child shall be held to be an orphan; and that such orphans as were born within the limits of the city of Philadelphia, as the same existed at the time of the making of the said will and the probate thereof, that is to say, between Yine and South streets, and between the rivers Delaware and Schuylkill, are entitled, provided they are, in other, respects, qualified, to admission into the said college before such orphans as were born elsewhere. And' that the City of -Philadelphia, and Samuel H. Perkins, William Biddle, James J. Boswell, George C. Bower, Jr., Alexander Brown, James Campbell, Mordecai L. Dawson, Daniel Deal, William H. Drayton, Samuel F. Flood, Daniel M. Fox, Thomas E. Harkins, William Martin, George W. Nebinger, Robert Self-ridge,.Thomas S, Stewart, James S. Watson, and William Welsh, directors of the Girard College for orphans, their officers and. agents, be, and they are hereby perpetually enjoined from admitting into the Girard College for orphans, Robert- Smith, Samuel Brown, W. James Young, Hárry Whitely, George E. Naylor, John B. Dinsmore, John Wark, John B, Porter, James W. Kerr, William Stott, Morris Zooks, Charles D. Pidgeon, George Wirth, Somers L. Steelman, William Pendleton, John L. Spear, Charles Riter, David R. Twining, George M. Hackett, George Cusack, and James W. Quereau, until James Soohan, the complainant, is admitted; and that the said defendants be enjoined from further refusing to .admit'the said James Soohan therein.</p> <p>From this decree, the present appeal was taken by the defendants.</p>

<p>Certificate from the Court of Nisi Prius.</p> <p>This was an action of debt by Ellis Lewis against the Philadelphia and Sunbury Railroad Company, on twenty coupon bonds of the defendants of §500 each, amounting to §10,000, and for the amount due on the coupons thereto attached.</p> <p>The bonds were all dated the 9th June 1856, and were in the following words:</p> <p>Five hundred dollars.</p> <p>No. 879. Commonwealth of Pennsylvania. §500.</p> <p>Mortgage 12 per cent. Loan §500,000.</p> <p>The Philadelphia and Sunbury Railroad Company</p> <p>Acknowledges itself indebted to the bearer in the sum of five hundred dollars lawful money of the United States; which sum the said company promises to pay to the bearer on the 15th day of June 1861, with interest at the rate of twelve per cent, per annum, payable on the 15th day of June 1857, and semi-annually thereafter on the 15th days of June and December, at the office of the company in the city of Philadelphia, upon the delivery of the annexed warrants respectively. The holder of this bond is entitled to the security of a mortgage, dated the 7th day of June 1856, by the said railroad company, of its railroad with its corporate'franchises and other property, also of twelve hundred acres of coal land on and adjacent to the route of the said railroad, executed to Charles W. Hegins, Esq., of Pottsville; and also of the pledge and deposit of ten thousand shares of the stock of the company in trust, to secure the full and final payment of the bonds to be issued by the said company, not to exceed, in the whole, five hundred thousand dollars.</p> <p>The tolls upon the railroad, and the rents of the land, to be applied to the payment of the interest, and the rents annually, to the creation of a sinking fund, for the final redemption of said bonds; seven-tenths of the par value of this bond is convertible at any time before the 15th day of June 1860, into the stock of the company, at the option of the holder, at the rate of forty-, three dollars; and the coupons hereto annexed, shall be receivable in payment of tolls upon the railroad, during the semi-annual period in which they may become payable.</p> <p>In witness whereof, the said railroad company hath caused this bond to be signed and attested by the president, and its common seal to be hereto affixed, at the office of the company in the city of Philadelphia, this ninth day of June, in the year of our Lord eighteen hundred and fifty-six. Wm. L. Heleenstein.</p> <p>The above bond is one of those authorized to be issued by the Philadelphia and Sunbury Railroad Company, in accordance with its charter, to the amount of $500,000; and the mortgage therein recited has been duly executed and recorded, and delivered to me.</p> <p>C. W. Hegins.</p> <p>To each of these bonds were annexed nine coupons, in the following form:—</p> <p>Philadelphia and Sunbury Railroad Company, 12 per cent: interest, warrant No. 9, on bond No. 879, for $500, due 15th June 1861.</p> <p>$30. W. Bickle, Treasurer.</p> <p>Together with the copies of these bonds, the plaintiff filed the following suggestion:—</p> <p>“ The claim of the plaintiff, in this case, is founded on twenty bonds, of $500 each, amounting to $10,000, and the coupons of each due the 15th day of June 1857, under and by virtue of the several provisions in a mortgage by the defendants, bearing even date with said bonds; and which said mortgage was given for securing the payment. But the plaintiff asks judgment for the debt, and six per cent, interest, to be levied of the lands and goods, the defendants waiving all right to a levy on the franchises, until such levy may be sanctioned in a judicial proceeding on the mortgage of the same — a copy of which mortgage is also filed with copies of said bonds — one of which provisions is as follows:— ‘That if default be made in the payment of interest on said bonds, for ninety days after the time appointed for the payment thereof, the principal sum of said bonds shall become due and payable, as if the .time appointed for the payment thereof had arrived.’ And plaintiff avers that default has been made in the payment of the interest on said bonds, for ninety days after the time for the payment of the interest thereof, and still continues to be made, and therefore a right of action hath accrued to him on said bonds.”</p> <p>The following affidavit of defence was put in by the defend • ants:—</p> <p>“ James S. Biddle, president of the Philadelphia and Sunbury Railroad Company, being duly sworn according to law, deposeth and saith, that there is a defence to the plaintiff’s claim in above case, as follows: That it appears by a memorandum on the bonds, copies whereof are filed in the above case, that said bonds are among those authorized to be issued by said railroad company, in accordance with their charter, to the amount of $500,000; and by the copy of mortgage filed, referred to in said bonds, that the same were issued in conformity with the provisions of the Acts of Assembly of this state, passed April 2d' 1850, and June 15th 1852, and under the authority given by said acts to said company to borrow the sums of money therein mentioned; that the president of said company, William D. Helfenstein, who executed said bonds and mortgage on behalf of said company, has ceased to act as such officer of the company since the month of April 1857, and that this deponent, together with the present board of managers, have been elected since that time; that by the Act of Assembly April 2d 1850, said company was authorized to borrow such sums of money not exceeding $500,000, at any rate of interest not exceeding twelve per cent, per annum, as might be deemed expedient, and to secure the same by a mortgage on the corporate franchises of said company; and by the Act of June 15th 1852, the said company were authorized to borrow such additional sum, not exceeding $800,000, as might be deemed expedient, under the provisions of said Act of April 2d 1850; that said defendants, prior to the making of the bonds on which this suit is brought, had issued bonds to the amount of $1,200,000, with interest at the rate of seven per cent, per annum, secured by two mortgages on their corporate franchises, and $100,000 of bonds, bearing interest at the rate of twelve per cent, per annum, secured by a mortgage on the separate real estate of said William D. Helfenstein; and this deponent, on behalf of said company, is advised that the said company, being only enabled to raise money at a rate greater than six per cent, per annum, by virtue of said Acts of Assembly, and having exhausted the authority given them in this respect, by the issue of said bonds, amounting to $1,300,000, the said bonds on which this suit is brought, purporting also to bear an interest of twelve per cent, per annum, were issued without any authority on the part of said company, and are invalid; that said bonds and the mortgage therein referred to, indicate upon their face the authority under which the same purport to have been issued and executed, and that the plaintiff, as a holder thereof, had notice that the same were issued in pursuance of the powers conferred upon the company by said Acts of Assembly, and, said powers having been exhausted prior to their issue, took the same at his own risk. This deponent further saith, that the books of the company do not show that any value whatever was received by said company for said bonds and mortgage, or either of them, on which above suit was brought, or of said loan of $500,000, of which they purport to be part; that said bonds appear by said books to have been delivered to said William D. Helfenstein, the said former president of the said company, whose accounts are still unsettled, and who has made no return of the proceeds of these bonds, or accounted for said proceeds to said company. This deponent further suggests, that if the bonds are valid, notwithstanding the company exceeded their authority, that the mortgage, for the reasons aforesaid, accompanying said bonds, is invalid and illegal, and that upon the face of the bonds only, without reference to the mortgage or the stipulations therein contained, no more than the interest due, can be recovered upon said bonds. James S. Biddle.</p> <p>“ Sworn and subscribed before me, this</p> <p>22d day of January, A. D. 1858,</p> <p>Charles E. Heleericht, Alderman.”</p> <p>On motion of the plaintiffs’ counsel, the court below gave judgment for want of a sufficient affidavit of defence; and the damages having been assessed at $10,900, the defendants removed the cause to this court, and here assigned the same for error.</p>

Appeals from the Common Pleas of Chester county.* These were appeals by Way Jefferis, trustee of William Jefferis and Hannah Jefferis, and by Davis Yearsley, from the decree of the court below distributing the assets in the hands of Charles Downing and Abraham Gibbons, assignees of James Yearsley, in trust for the benefit of creditors.

<p>A municipal claim cannot be supported against a railroad company, for paving a street running side by side with the defendants’ railway.</p>

* This was an action of debt by Henry W. Gault against James G. Gibson, prothonotary of the Court of Common Pleas of Philadelphia county, to recover several distinct penalties for taking illegal fees, and for omitting to post a copy of the fee-bill in his office. The declaration contained twenty-four counts, in each of which a distinct penalty was claimed. Nineteen of these counts were for several penalties of $50; and the remaining counts, for several penalties of $10 each.

<p>Error, to the District Court of Philadelphia.</p> <p>This was an action of debt by John S. De Wolf and James R. De Wolf, trading as J. S. De Wolf & Co. against The Merchants’ Insurance Company, on a judgment obtained by the plaintiffs against the defendants, in the Superior Court of the city of New York, on the 14th June 1858, for $6021 and costs.</p> <p>To a declaration on this judgment the defendants pleaded, inter alia, — “ That after the entry of the said supposed judgment in the said declaration mentioned, and prior to the institution of this present suit, to wit, on the ninth day of July, in the year of our Lord eighteen hundred and fifty-eight, the said defendants did duly enter and take an appeal from the said judgment from the said Superior Court of the city of New York, to and into the general term of the said the Superior Court of the city of New York, which said appeal is still in full force and depending and undetermined.”</p> <p>To this plea there was a general demurrer; and the court below, after argument, gave judgment for the plaintiffs on the demurrer, which was here assigned for error.</p>

This was an appeal by Lewis R. Conard, guardian of his minor children, Rowena, Martha, Mary, Laura, Margaret, Emily,, and Ellen Conard, from the decree of the court below upon the accounts of Thomas Bickerton and Edmund J. Yard, executors of John Kline,, deceased.

This was an action of assumpsit hy Anna M. Eitler against Theophilus Eitler, for money expended by the plaintiff in the support and maintenance of the defendant’s minor son. Held: that when a minor leaves his father’s house voluntarily, for the purpose of seeking his fortune in the world, or to avoid domestic discipline and restraint, the father is under no obligation to pay for his support.

<p>In estimating the damages that will be sustained by the construction of a railroad through the property of a landowner, the jury may allow the party the market value of the land taken, and all actual damages arising from the manner in which the road passes through the property and affects the improvements ; but they are not at liberty to estimate the value of unopened mines beneath the surface.</p> <p>And, although contingent disadvantages arising from the inconvenience that may be sustained, in future, in case of some possible use of the property, may be set off against the advantages to be derived from the construction of the road, they cannot be taken into consideration as a substantive claim for damages.</p> <p>In valuing land taken for public use, the gross estimates of common life, the market prices, are all that courts and juries can use as measures of value; all other measures are necessarily arbitrary and fanciful.</p> <p>In making roads over unopened mines, it is not a subject of damage that the owner will be thereby put to expense and inconvenience when he begins to work his mines.</p>

This was an ejectment by Thomas E. Lewis and others, the children and heirs at law of Thomas Lewis, deceased, against Charles Lewis, for a tract of 104 acres of land in Plumstead township, Bucks county. In the court below, a case was stated for the opinion of the court, with liberty to either party to sue out a writ of error, in which the following facts were agreed upon.

This was an indictment, in the court below, against Erasmus H. Helfrieh, for adultery. The indictment was as follows:— u Lehigh County, ss.

<p>Error to the Common Pleas of Tioga county.*</p> <p>This was an action of covenant by Benjamin C. Wickham, Joseph Aiken, Abram Prutsman, and John B. Steele, who survived Peter B. Guernsey, against J. 0. Johnson, Charles D. Birchard, Lucy Putnam, and George Knox, on a contract, under seal, wherebythe defendants guarantied the performance of a contract by George W. Booth, to erect a meeting-house for the plaintiffs, who were the building committee of the Presbyterian Church in Tioga village.</p> <p>In August 1850, the plaintiffs advertised for proposals for building a meeting-house in Tioga village, requiring the contractors to give security for the performance of their contract. George W. Booth sent in a proposal, which was accepted; and the defendants executed the following power of attorney, authorizing him to place their names, as guarantors, to the building contract:—</p> <p>Covington, Aug,. 5th, A. d. 1850.</p> <p>Messrs. B. C. Wickham, Joseph Aiken, Abram Prutsman, J. B. Steele, and P. B. Guernsey, building committee of the Presbyterian meeting-house, Tioga village, Tioga county, Pa. Sirs: We, the undersigned, citizens of Covington, do by these presents authorize Geo. W. Booth, of Covington, to place our names to a contract made by and between him and the above-named committee, as security for the performance of said contract, on his* part. As witness our hands, this 5th day of August 1850.</p> <p>J. C. Johnson, l. s.</p> <p>Charles D. Birchard l. s.’</p> <p>Lucy Putnam, l. s.:</p> <p>George Knox. E. S.:</p> <p>Attest: Edwin Dyer.</p> <p>. On the 15th August 1850, George W. Booth entered into a contract for building the proposed meeting-house, and executed the following guarantee in the names of the defendants:—</p> <p>We hereby guarantee the performance of the above contract on the part of George W. Booth, and agree to make good all damages in consequence of any failure on his part to do the work as agreed, or in the non-performance of the contract on his part,' in any par-</p> <p>ticular. Witness our hands and seals, this 15th day of August,</p> <p>A. D. 1850. s.] 'J. C. Johnson, it.</p> <p>B-] Chas. D. Birchard, Lucy Putnam, L. ‘l. s.]</p> <p>Geo. Knox. L. S.]</p> <p>By Geo. W. Booth. L. S.]</p> <p>On the trial, the plaintiffs offered this instrument in evidence, which was ruled out by the court below, on the ground that the power of attorney did not authorize Booth to bind the defendants by an instrument under seal. To this the plaintiffs excepted; and a verdict and judgment having been rendered for the defendants, the plaintiffs sued out this writ, and here assigned the same, inter alia, for error.</p>

* This was an action on the case by Michael McDonough against The President, Managers, and Company of the Schuylkill Navigation Company, for unlawfully raising the water of the Schuylkill river and of Mill creek, tvhereby the plaintiff’s cellar was rendered wet and unwholesome, and the health of his family injured.

Application to hold a court of Oyer and Terminer in Centre county.* The facts of this case appear in the opinion of the court, which was delivered by

<p>In Equity. Motion for special injunction.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was a scire facias on a mortgage by Hugh Morrow, assignee of Matthew Semple, against William F. Souder and Elizabeth his wife, and terre tenants. ,i</p> <p>On the 2d December 1855, William F. Souder and Elizabeth • / his wife, executed the mortgage in question to secure to Matthew Semple the sum of $2000 and interest. It was not recorded until the 27th November 1855.</p> <p>On the 1st October 1855, the mortgagors conveyed the mortgaged premises to Samuel M. Hager, without notice of the mortgage; on the 31st October 1855, Hager conveyed the same to Levi H. Bell; and on the 31st January 1856, Bell conveyed to Joseph "W. Souder, the terre tenant. These conveyances were all recorded on the 16th June 1856.</p> <p>The possession of the premises accompanied the conveyances, from the execution of the deed to Bell. And the tenant attorned and paid the rent to the vendees.</p> <p>On the trial, the court helow affirmed the following points presented by the plaintiff: — ■</p> <p>1. If the mortgage by William E. Souder and wife to Semple was recorded before the record of the deed by him and his wife for the said premises to Hager, through whom the defendant claims, the plaintiff is entitled to a verdict.</p> <p>2. To give the defendant a preference, as a subsequent purchaser, it was necessary for him to have recorded the deed, through which he claims title from Souder and wife to Hager, within six months after its execution, or before the record of the plaintiff’s mortgage; and, if he did not, he cannot complain of the plaintiff’s laches in not recording the mortgage, as he is guilty of like neglect in not recording his deed within six months after its execution.</p> <p>3. The continued occupation of the premises after the sale, by the same person who was the tenant of William E. Souder before the sale, was not notice to the plaintiff that defendant had purchased the premises; the presumption being, that he continued as the tenant of W. E. Souder.</p> <p>To this instruction the defendant excepted; and a verdict and judgment having been rendered 'for the plaintiff for $2498.33, the defendant sued out this writ, and here assigned the same for error.</p>

This was an appeal by Jacob Bush, the trustee of Sarah Snyder, under the will of Christian Friday, deceased, from the decree of the court below directing him to pay over the trust fund in his hands, to the said Sarah Snyder, the cestui que trust.

This was a petition by Emily A. Williams, and George W. Williams, in right of his wife, setting forth that Henry Naglee, the father of the said Emily A.'Williams, by his will, proved on the 23d February 1838, devised certain real estate, in the county of Philadelphia, to the said Emily A. Williams, when she should attain the age of twenty-one years.

Appeal in Equity from the Court of Nisi JPrius. This was a hill in equity by Caroline McKee, against John McKinley, for the specific performance of a contract in writing for the purchase of a house and lot of ground in the city of Philadelphia, No. 73 New street, for the sum of $2518.25.

<p>The Act 13th May 1856, giving the owners of lots in Philadelphia, two years to redeem from sales for municipal claims, is to be liberally construed in favour of the right of redemption. It applies to cases of sales made before its passage, but in which no deeds had then been executed to the purchasers.</p> <p>Such sale leaves in the owner an equity of redemption, and his grantee may redeem the land.</p> <p>And such redemption is not defeated by a conveyance from the purchaser at the sheriff's sale. The grantee of such purchaser takes a defeasible title, liable to be defeated by a redemption within the period prescribed by the statute.</p> <p>The act applies to a sale by the city of Philadelphia, under a lien filed by one of the former municipal corporations into which it was divided.</p> <p>A retroactive statute is not unconstitutional, unless it violate the obligations of a contract. And there is no contract with a purchaser under a municipal claim, until the acknowledgment of the deed.</p> <p>The Act of 13th May 1856, is a regulation of the taxing power: until a purchase under a tax sale is fully consummated, it is entirely under legislative control.</p>

<p>Error, to the District Court of Philadelphia.</p> <p>This was an action of assumpsit by Alexander Whilldin and Benjamin Swain, administrators of T. W. Swain, deceased, against Joseph Singerly, for the difference between his bid for a portion of the decedent’s real estate, at an Orphans’ Court sale, and what it brought on a resale, rendered necessary by his default.</p> <p>On the 20th June 1856, the plaintiffs, under an order of the Orphans’ Court, exposed the real estate of the intestate to public sale, for the payment of debts; when Joseph Singerly, the defendant, became the purchaser of a house and lot at Broad and Thompson streets, in the city of Philadelphia, at the price of $6900; and paid down $50, as prescribed by the conditions of sale.</p> <p>This sale was duly confirmed, the plaintiffs tendered to the defendant a deed for the premises, and demanded payment of the balance of the purchase-money. The defendant, however, refused to comply with the conditions of sale, claiming the right to deduct from the purchase-money a mechanic’s lien for $4077.50, which he held against the premises; but which was disputed, and in litigation. The plaintiffs declined to allow this claim, and applied to the court for an alias order of sale, which was granted.</p> <p>On the 6th January 1857, the premises were again offered for sale, upon the same terms and conditions, at the risk of the former purchaser, and purchased by Singerly for $6000; who paid $50 on account, but again refused to comply with the conditions of sale, claiming as before, to retain the amount of his lien out of the purchase-money.</p> <p>On the 3d April 1857, the Orphans’ Court, on application of the plaintiffs, with notice to the defendant, awarded a pluries order of sale; and directed that the purchaser should he required to pay $1000 of the purchase-money, at the time of sale; under this order, the premises were again exposed to sale, and purchased by L. M. Whilldin, for $3100; and this suit was brought against Singerly, for the difference between the price at which the premises were struck off to him at the first sale, and that which they eventually realized, with interest.</p> <p>The defendant pleaded non assumpsit, payment, and set-off, with leave, &c.; but no notice of set-off was given, as required by the rule of the District Court.</p> <p>On the trial, the defendant offered to file a special plea of set-off, which the court below refused to allow; and the defendant excepted. He then offered in evidence a mechanic’s lien against the premises for $4077.50, and to prove that the intestate was indebted to him in that amount for building the house in question; but the court refused to admit the evidence, and sealed another bill of exceptions.</p> <p>The defendant then presented the following points in writing, upon which he requested the court to charge the jury:—</p> <p>1. That the sale of June 20th 1856, having been confirmed, and so remaining unamended on the docket, made absolute defendant’s contract; which was discharged, and defendant released by sale of January 6th 1857, without amendment of former return.</p> <p>2. That the second sale of May 5th 1857, discharged defendant from his contract, the return not having been amended, but showing a sale made and confirmed.</p> <p>3. That plaintiffs, by having the sales of June 20th 1856, and January 6th 1857, set aside instead of amending return, discharged defendant from liability; it appearing by the record as it now stands that no sale was made.</p> <p>4. That plaintiffs, by changing the terms of sale on the last sale, have released defendant from his contract, and thus discharged his liability.</p> <p>5. That, without the first sales of June 1856, or January 1857, being set aside, or confirmation amended or annulled, no title passed at the last sale.</p> <p>6. That a prior order of sale must be first disposed of before a second one can issue; that is, there must be a return, upon a return and confirmation, there is an inchoate title in the purchaser, which must be disposed of, by amendment of return, or annulling of con-^ firmation, before a new order of sale can issue.</p> <p>The court below declined so to charge, but reserved the question of law for the court in banc, and directed the jury to find for the plaintiffs, subject to the opinion of the court on the point reserved. The jury, accerdingly, found a verdict for the plaintiffs for $4224; and the court below, subsequently, entered judgment for the plaintiffs on the reserved point; when the following opinion was delivered by Hare, J.:—</p> <p>“ The question whether the conditions of a second sale, which has been rendered necessary by the failure of the purchaser to comply with the terms of the first, can be varied by the court without discharging him from the obligation into which he has entered, and thus extinguishing the liability incurred by its nonfulfilment, is one of constant occurrence in practice, but has never received a final or authoritative solution. The cases of Paul v. Shallcross, 2 Rawle 362, and Banes v. Gordon, 9 Barr 426, which have been cited on the part of the defendant, do not touch the point now before us; Banes v. Gordon, simply deciding that a purchaser at a sale made by executors under an order of court, will be discharged, if the terms of the second sale are varied by the executors of their own motion, without the sanction of the court; while Paul v. Shallcross is still more remote, and merely determines that a new agreement between the executors and the purchaser may supersede the old, or extinguish the obligations. The change made in the terms of the sale in the present instance, was made by order of the Orphans’ Court, and after due notice, and is consequently binding on the purchaser, unless the court has exceeded their powers in making it. The point is not free from difficulty; but we are, on the Avhole, of opinion, that whenever a sale falls through, from the default of the buyer, and there is sufficient ground for believing that the purchase was made without any intention to pay for it, in pursuance of a preconcerted scheme to defeat the ends of justice, and prevent or delay the completion of the sale, there must be a power somewhere to prevent a repetition of the same course, by making the terms of the second sale cash, even when those of the first have been credit, and requiring the whole or part of the price to be paid down at the time of the bid, without releasing the guilty party from the liability which is the only penalty for his misconduct. Any other conclusion would involve a dilemma, which obviously ought not to exist, and would compel the parties to choose between a release of the purchaser and an indefinite protraction of the sale. The rule for a new trial is consequently discharged, and judgment entered for the plaintiffs on the point reserved.”</p> <p>To this opinion the defendant excepted, and having removed the cause to this court, assigned for error: 1. The rejection of his plea and evidence of set-off. 2. The entry of judgment for the plaintiffs on the reserved point.</p>

<p>Error to the Common Pleas of Oarhon county.</p> <p>This was an action of assumpsit by John S. Kistler against Jacob Bowman and Dennis Bowman, administrators of John D. Bowman, deceased, on a promissory note of which the following is a copy:—</p> <p>“ $1200. Tamaqua, May 10, 1850.</p> <p>“ One year after date, we promise to pay to John S. Kistler, twelve hundred dollars, with lawful interest from date, without defalcation, for value received. John Eynon,</p> <p>“ Witness — Josiah Bowman. John D. Bowman,</p> <p>Peter Bowman.”</p> <p>Endorsements:</p> <p>“ September 29, Rec’d. of Daniel Wannemacher for Peter Bowman, seventy-five dollars, int. $75 00</p> <p>May 18, 1852, “ ‘ 70 00</p> <p>March 19, 1853, “ 72 00</p> <p>“ 29, 1854, “ ‘ 72 00</p> <p>“ 16, 1855, “ 72 00</p> <p>“ 26, 1856, “ 41 72 00</p> <p>The declaration contained the common counts, and also two special counts; one on a promissory note made by the defendants’ intestate; and the other on a promissory note made by John Eynon, John D. Bowman, and Peter Bowman; with an averment that the said John Eynon and Peter Bowman, after the making of the said note, and before the commencement of this suit, became insolvent; and the said John D. Bowman thereby, in his lifetime, became liable, &c. The defendants pleaded non assumpsit.</p> <p>The note in question was given as .a security for a loan of money to Peter Bowman, one of the makers; John Eynon and John D. Bowman being his sureties. The whole amount of the $1,200 was paid to Peter Bowman on the delivery of the note, but in pursuance of a previous understanding, he subsequently paid the plaintiff a bonus of $20 ; and also paid him an annual bonus, in addition to the legal interest, of $15.</p> <p>On the trial, the defendants’ counsel presented the following points, upon which they requested the court to charge the jury:—</p> <p>1. That the suit, being against the representatives of a deceased co-promissor, who was but a surety, and not the principal debtor, cannot be maintained; inasmuch as it appears that the other two makers of the note sued on, are still living.</p> <p>2. That if the jury believe that, at the time the note was given, the real contract between Kistler and Peter Bowman was a different one from that set forth in the note, the surety cannot be held liable.</p> <p>3. That if the contract between Kistler and Peter Bowman, as communicated to J. D. Bowman, was afterwards modified and changed, so as to extend the time of payment, the surety was thereby discharged, and the plaintiff cannot recover.</p> <p>The court below (Barrett, P. J.) delivered the following charge to the jury:—</p> <p>“The suit in this case is brought upon a cjoint note,’ signed by John Eynon, John D. Bowman, and Peter Bowman, and is dated May 10th 1850, payable one year after date. John Eynon and Peter Bowman, it is alleged, were insolvent at the time the suit was brought, and both resided without the jurisdiction of this court. John D. Bowman died, and letters of administration on his estate were granted to the defendants on the 80th day of November 1853. This suit, being instituted in April 1857, could only be commenced against his personal representatives.</p> <p>“ Under the provisions of the Act of 6th of April 1830, and of 11th April 1848, the note in question must be regarded as a joint and several obligation. The distinction previously existing between a ‘joint’ and a ‘joint and several’ obligation has been entirely obliterated. Those acts have been judicially interpreted, and such has been the conclusion: 3 Qasey 244.</p> <p>“ The plaintiff has chosen to sever his actions, and this from necessity. — John D. Bowman, one of the promissors, being dead, he could not have joined his personal representatives with the survivors. If Bowman had been living, he might have been separately sued. If you are satisfied, from the evidence, that John Eynon and Peter Bowman were insolvent at the time this suit was brought, the plaintiff had a right to bring it against his personal representatives.</p> <p>“It is alleged that John D. Bowman was only surety in the note; and the evidence, if believed, would seem to establish that fact. Peter Bowman was the principal. The money was borrowed for his benefit, and he received it. Kistler selected John D. Bowman as the security he desired, and seemed to be fully aware that the money was going to Peter Bowman. He received his interest annually from Peter Bowman, and in all respects treated him as the principal. The note, however, in its character being joint, the promise to pay was equally binding upon all who signed it.</p> <p>“ It is said, that the contract between Peter Bowman and the plaintiff, differed from that expressed in the note. The only evidence in relation to that, is the fact, that Peter agreed to pay a ‘ bonus’ or a sum beyond the legal rate of interest for the use of the money. If you believe the evidence, this was not a part of the contract, at the time of its consummation. The note was given for $1200 — payable one year after date, and bearing interest from its date. The whole amount of the money was paid to Peter Bowman, at the time. About two months afterwards, he paid to the plaintiff twenty or twenty-five dollars as a ‘ bonus.’ This was not such a material difference in the contract as would release the security. Indeed, the contract was not changed at all. Peter Bowman received all the money that John D. Bowman agreed to become security for.</p> <p>“ The loan of money was for one year, as expressed in the writing, and which is the best evidence of the contract. The first ‘ bonus’ paid, it is fair to infer, was paid for that year. It was a voluntary payment, made after the contract had been completed.</p> <p>“ If, at the expiration of the year, the plaintiff made a new contract with Peter Bowman, by which he extended the time for payment, without the consent of the surety, the law is well settled that the surety is discharged. The reason for such a rule is obvious. A man may be entirely willing to become the security of another, for one year, for the payment of a sum of money, when he would not for a longer term. Besides, it is the privilege of a surety, to require the payee to proceed upon the note, and enforce its collection at any time after maturity, and for his benefit, and if the payee refuse to do so, he will be discharged. An agreement with the principal to postpone the payment for a specified time, would take away this right belonging to the surety. A creditor cannot change the original contract to the prejudice of the surety, and still hold him liable.</p> <p>“ The note, in this case, became due in 1851. It was extended, from year to year, until 1857. At the end of every year Peter Bowman paid to the plaintiff the interest, and an additional sum of $15 for the use of the money.</p> <p>“ If the jury believe, from these facts, and from the whole evidence, that a contract was entered into between Kistler and Peter Bowman, at any one of those times, when the interest and ‘ bonus’ was paid, to extend the time of payment of the principal, the surety is released. If such was the case, the original contract was truly rendered void, as to John D. Bowman. The old contract could only be destroyed by the creation of a new one, and therefore it becomes important to ascertain precisely the character of the subsequent arrangement between the parties. It'must have been an agreement to postpone for a specified time, and for a sufficient consideration, and upon this point the proof should be clear and conclusive.</p> <p>“ If the plaintiff’s forbearance was without any special contract with Peter Bowman, the surety’s liability continued. The time given would be for the benefit of all. The presumption would be, that the surety as well as principal desired the postponement, and were willing to continue their liability.</p> <p>“ The payments for interest in 1851,1852, and 1853, were made during the lifetime of John D. Bowman, and the payments in 1854, 1855, and 1856, were made after his death. There is no evidence that his personal representatives had any notice of the claim prior to the bringing of this suit. Very certainly, he did not agree to the last three postponements.</p> <p>“ It is left for the jury to say, whether the postponement of the time of payment was in pursuance of a contract made between the plaintiff and Peter Bowman, without notice to John D. Bowman. If it was, the surety is discharged, and the plaintiff cannot recover.</p> <p>“If no such agreement was made by -the plaintiff, he may recover the amount of the note, after deducting all of the payments made upon it.”</p> <p>To this charge the defendants excepted; and a verdict and judgment having been rendered for the plaintiff for $1219.78, the defendants removed the cause to this court, and here assigned the same for error.</p>

This was an action of debt, originally brought before a justice of the peace, by the Commonwealth of Pennsylvania, at the instance of George Abbott and H. Holcomb, against Green Clark, to recover the penalty prescribed by the 68th section of the Act of 13th June 1836, [Brightly's Purd. 726, pl. 93), for obstructing a public road or highway, in Sugar Grove township, Warren county.

<p>Error to the Common Pleas of Tioga county.</p> <p>This was an action of assumpsit, originally brought before a justice of the peace, by James H. Gulick, William Alworth, and Clarendon Rathbone, trustees of the Presbyterian Congregation of Blossburg, against Joseph W. Ryerss, to recover a subscription of $100 towards the building-of their church. The cause came into the Common Pleas by appeal.</p> <p>On the trial, the plaintiffs gave in evidence their charter, the 9th article of which was as follows:—</p> <p>“ All property belonging to, or hereafter obtained by said congregation, shall be vested in the trustees and their successors in office; and all conveyances hereafter to be made to said congregation, shall be made to the board of trustees and their successors in office, for the use of said congregation. All debts due the said congregation, or hereafter to become due, by subscription or otherwise, shall be prosecuted in the name of the trustees in office at the time of bringing said suits; and all such suits shall be prosecuted for the use of the trustees in office, until final judgment and execution had thereon; and the annual income of the property owned by the congregation, at any one time, shall never exceed $2000.”</p> <p>The plaintiffs then offered James H. Gulick, one of the trustees, as a witness; the defendant objected to his competency, on the ground that he was a party on the record, was liable for costs, and also a member of the congregation. The court overruled the objection, admitted the witness, and the defendant excepted.</p> <p>The following testimony was then given:—</p> <p>James H. GrulicTe: — “ I know Joseph W. Ryerss; we commenced building our Presbyterian church at Blossburg in the year 1853; in the fall of 1852, Ryerss called on me ; was very anxious we should have a church at Blossburg; I told him we were too poor to build one; he then said he and his associates, and he named Mr. Colket and Mr. Aspinwall who were stockholders in the Tioga Improvement Co., would assist in building the church; gave two reasons why the church should be built — one was, the place looked heathenish without a church, and the other, that it would add to the value of the property; said he would interest himself towards getting up a subscription, and I should do the same ; in February 1853, he agreed to subscribe $100, or give $100 towards building the church; some three or four months after, I was in Philadelphia, and called on him for his subscription; we had commenced the church and wanted funds, was the reason I called on him; he told me he had paid it to Mr. Aspinwall; in a short time I met Mr. Aspinwall in the street, and he said Mr. Ryerss had not paid it to him; the amount, $100, was mentioned, at the time I asked Ryerss for the subscription; in a short time after, I went to the railroad office, and Mr. Ryerss was in ; I told him what Aspinwall said; Ryerss then asked whether Colket had paid his subscription; I told him, no, and said, will you pay yours, if Colket will his ? he said, yes, he would; in less than five minutes after, Colket came in, and 1 called on him for his $100 subscription, and he paid it to me; I then called on Ryerss to fulfil on his part, and he declined paying it; I called on him several times, and urged him to pay it; he declined; we went on and built the church; the church was contracted, before I called on him in Philadelphia for his subscription, and in progress ; it is finished, and open for worship.”</p> <p>Cross-examined: “ The conversation when he agreed to subscribe, took place in the Tioga Railroad office, in Philadelphia; nothing was said, as to what sort of a church was to be built, at that time; nothing about a union church; when Colket paid his subscription, Ryerss gave as a reason why he would not pay his subscription, that it was not a free church — free to all denominations; no plan was fixed upon for building the church, in February 1853; nothing said as to what denomination. There was a written subscription, but few had signed it; we had agreed to build a Presbyterian church, before we got up the subscription; nothing was said to Ryerss, in Corning, in 1852, nor in Philadelphia, in 1858, as to what denomination it should belong; only two persons signed the subscription; all said, they would give so much, and when called on, they paid it; I put down their names (as a memorandum of the amount furnished) by others ; no one present at the conversation in Philadelphia, except James Lohse; he was with me, in Philadelphia, and, I think, present at the conversation; don’t recollect, whether any one was present at Corning; I spoke to Mr. Williston about trying this cause in behalf of the congregation; am not responsible for anything.”</p> <p>John James: — “ I reside at Blossburg; know defendant; in the month of August or September 1853, I met Mr. Ryerss on the railroad, between the depot and where Mr. Hall lives now; was in company with others ; he turned aside and shook hands with me; at that time the church had been raised; Mr. Ryerss pointed to the church; stated we were going to have a very fine church in Blossburg; recommended the undertaking very much; said we ought to be very thankful to the gentlemen in Philadelphia; mentioned some names — Mr. Colket’s and Aspinwall’s ; said he had invested $ 100' himself, and if this is too little, John, we must subscribe more, you must do likewise in Blossburg; that was all that passed.”</p> <p>Cross-examined: “No one present but defendant and myself; nothing said about a free church or a union church.”</p> <p>The court below (White, P. J.) delivered the following charge to the jury: — ■</p> <p>“ The evidence of James IT. Gulick and John James, if believed, establishes a contract or promise, to pay the plaintiffs one hundred dollars towards a church, to be erected in the village of Blossburg, founded upon a sufficient legal consideration, to authorize a recovery in this suit.</p> <p>“ The allegations of the defendant, that there were no terms specified in the contract; no description of the building intended to be erected; no designation of the denomination to which it should belong; that he had no notice of the acceptance of his offer by the trustees, do not constitute a defence. According to the evidence, defendant promised to pay unconditionally, towards a church to be erected in the village of Blossburg, $ 100. He did not annex as a condition, that it should be a free church, or that it should or should not belong to any particular denomination.</p> <p>“ In the conversation he had with James, after the frame of the church was up, he said he had agreed to pay $100 towards the building, and would contribute more if necessary. To Gulick he urged the propriety and policy of building a church in Blossburg, and agreed to contribute $100 towards it; and in the various conversations detailed by the witnesses, no expression fell from his lips indicating that he had any desire that the church should be free to every denomination, or making any suggestions in regard to the plan or style of the building.</p> <p>“ The circumstance that this was a parol promise, does not affect its validity. It is a parol promise, or contract, founded on a sufficient consideration, and comes within the principle of the case of Caul v. Gibson, 8 Barr 416.”</p> <p>To this charge the defendant excepted ; and a verdict and judgment having been rendered for the plaintiffs for $121.60, the defendant removed the cause to this court, and here assigned for error: 1. The admission of Gulick as a witness: 2. The charge of the court.</p>

<p>The Married Woman’s Act of the 11th April 1848, is to be so construed, as to suppress the mischief against whioh it was intended to provide; namely, the liability of the wife’s estate to be taken to satisfy the husband's debts; but it is not to be so construed, as to give her the absolute right to dispose thereof, as a feme sole, without her husband’s consent.</p> <p>A married woman is not empowered by the Act of 1848, to dispose of or charge her separate estate, by an instrument under seal to which her husband is not a party.</p>

<p>A conveyance of land bounded by the side of a street, gives the grantee a title to the centre of it, if the grantor had title to that extent, and did not expressly, or by clear implication, reserve it; although the distances set forth in the deed bring the line only to the side of the street; and if such street be vacated, the grantee will have a right to extend his line to the middle of it.</p> <p>Paul v. Carver, 12 Harris 207 ; s. c. 2 Casey 223, affirmed.</p> <p>A stake by the side of the street is not such a fixed monument as will control the rule of law, that the grantee takes to the centre.</p> <p>The construction of a deed, in which there is no ambiguity, is for the court and not for the jury; but the court, in construing such a deed, must look into the circumstances under which it was made, as evidencing the intention of the parties.</p>

This was an action of trespass quare clausum, fregit by the County of Susquehanna against James Deans and George Keeler, wherein the parties agreed upon the following case stated, to be considered as a special verdict:— On the 24th day of July 1812, Isaac Post was the owner in fee of the locus in quo, and on that day, by his deed, duly executed and acknowledged, and recorded in Deed Book No. 1, page 95 (which deed, a copy being annexed, is made a part of this case), granted…

<p>Error to the Common Pleas of Northampton county.</p> <p>This was an action of assumpsit by The Easton Bank against Abraham Sherer and Philip Mixsell, Jr., on a promissory note of which the following is a copy :—</p> <p>$1600. Richmond, Pa., March 24th 1855.</p> <p>Ninety days after date, I promise to pay, at the Easton Bank, to the order of A. Sherer and P. Mixsell, Jr., the sum of sixteen hundred dollars, without defalcation, for value received.</p> <p>Credit the drawer, Philip Gross.</p> <p>A. Sherer,</p> <p>P. Mixsell, Jr.</p> <p>Endorsed — A. Sherer,</p> <p>P. Mixsell, Jr.</p> <p>The summons was issued on the 5th March 1856, returnable on the 21st April; at the time of issuing the writ, a declaration was filed against both defendants, and a rule of reference was entered, arbitrators to be chosen on the 21st March.</p> <p>Before the arbitrators were chosen, the sheriff made the following return to the writ: — “ Summoned Abraham Sherer by leaving a true and attested copy of this writ at his dwelling-house, with an adult member of his family: — and nihil est as to Philip Mix-sell, Jr.” Whereupon the plaintiff’s counsel, without leave of the court, filed an amended declaration, conforming to the sheriff’s return as to Mixsell.</p> <p>The defendant, Sherer, attended at the choosing of the arbitrators, appealed from their award, and pleaded to the action. When the case was called for trial, he objected that it was not in a condition to be tried; whereupon the court allowed the amendment to the declaration, nunc pro tunc, and directed the parties to proceed to trial; to which the defendant excepted.</p> <p>On the trial, the plaintiffs gave the note in evidence, and proved that on the 25th June 1855, the day on which it fell due, neither of the parties had funds in the bank to meet it. They also gave in evidence the notarial certificate of protest; in which the notary stated, that on the 25th June 1855, he presented the note in question to the cashier of the Easton Bank, where the same was made payable, and demanded from him payment thereof, and receiving for answer that he could not pay the same, for want of funds belonging to the drawer, he forwarded separate written notices, by mail, directed to the endorsers, informing them of the non-payment thereof.</p> <p>The notary testified that he gave the notice to Sherer personally, on the afternoon of the 25th June, and placed the notice for Mixsell in the post-office, directed to him at Philadelphia. He could not recollect whether the notice to Mixsell was similar to the one delivered to Sherer, which he identified; and which was dated the 23d June 1856.</p> <p>The plaintiffs then gave in evidence, a deposit of $500 by Abraham Sherer, the defendant, on the 21st October 1855, which was credited on his bank book; and they offered to prove that it was the custom of the bank, when a partial payment was made, to credit the party with the amount on his bank book as a deposit To this offer the defendant objected, but the court admitted the evidence, and sealed a bill of exceptions. The credit was endorsed on the protest.</p> <p>On the trial, the plaintiffs’ counsel requested the court to charge the jury: — That if they believed the defendant paid $500 on account of the note in question, in October 1855, it was an admission of his liability, and relieved the jury from all necessity of considering tbe alleged defects in the notice. The learned judge answered this point in the affirmative.</p> <p>The defendant’s counsel presented the following points, upon which he requested the court to charge the jury:—</p> <p>1. That the evidence does not prove a protest of the note, as the law requires, and, therefore, the defendant is entitled to a verdict. The court answered this point in the negative.</p> <p>2. The evidence is not sufficient that there were not funds in the bank of drawer and endorsers, to meet the note, and, therefore, plaintiffs cannot recover. Answered in the negative.</p> <p>3. The proof does not show that notice of non-payment, by the drawer of the note sued upon, was given to the endorsers, as required by law, and, therefore, the plaintiffs cannot recover. Answer. — “ There is sufficient evidence of notice to P. Mixsell, Jr., and evidence of what dispenses with notice to Sherer.”</p> <p>4. Where a notice has been sent to an endorser by mail, it should be proved where the notice was sent to, and that it was sent to the residence of the endorser. This proof has not been made here, and, therefore, plaintiff cannot recover. If number and street of a city was on address of notice, plaintiff was bound to show what was the number and street so endorsed, and that it was correct address. Answered in the negative.</p> <p>5. The certificate of protest by the notary, merely stating that notices were sent to the endorsers by mail, is not sufficient. The place to which sent must appear, coupled with proof of that place being the residence or place of business of the endorsers. Answer. — “ The principle stated in the first clause of this point is correct; but in regard to the latter clause, there is evidence of the notice being sent to the place of residence of P. Mixsell, and there is evidence of what dispensed with notice to Sherer.”</p> <p>6. The notice to Sherer was not such a notice as the law requires. It refers to a note due June 23d 1855. The note on which suit was brought came due June 25th 1855. The notice refers to a note drawn to A. Sherer’s order, and endorsed by him. The note sued on is to the order of A. Sherer and P. Mixsell, Jr., and endorsed by them jointly. No other notice having been given him, the plaintiffs cannot recover. Answer. — “ This notice, I have already said, was insufficient.”</p> <p>7. Notice to one of two joint endorsers would not bind even the endorser served. Proper and legal notices must be given to both. This not having been shown, plaintiffs cannot recover. Answer.— “Notice must be shown to both endorsers, or notice to one, and circumstances which dispense with notice to the other.”</p> <p>8. Even waiver of notice by one of two joint endorsers, would not make him liable, unless notice had been served on the other. Answered in the affirmative. “ But waiver of notice by one endorser, and proper notice served on the other, make both liable.”</p> <p>.9. The deposit of $500, October 22d 1855, whether considered as payment or deposit, was not a waiver of notice, nor does it excuse the plaintiffs from proving presentment and notice of nonpayment. Answered in the negative.</p> <p>10. There is not sufficient evidence of demand and notice of non-payment, and, therefore, plaintiffs are not entitled to recover. Answered in the negative.</p> <p>The court below (Findlay, P. J.) also delivered the following general charge to the jury : — ■</p> <p>“ This is an action brought by the Easton Bank, endorsee of a note dated March 24th 1855, drawn by Philip Gross, payable at ninety days at the Easton Bank, for $1600, in favour of Abraham’ Sherer and Philip Mixsell, Jr., and by them endorsed to the plaintiff. The process not having been served on Philip Mixsell, you have been sworn to try the issue as to A. Sherer alone; yet, it may be here shown, that the proof of joint liability must be the same as if both defendants had been served with process. The defendant is charged as a joint endorser with Philip Mixsell, and it is then incumbent on the plaintiff to show,</p> <p>“ 1st. A demand of payment, and non-payment.</p> <p>“ 2d. A notice to both endorsers, of the demand, and non-payment, or something which dispenses with such notice.</p> <p>“ As to the notice to Mr. Mixsell, if you believe the evidence by Col. Hutter and Philip Mixsell, Sr., there is sufficient evidence of notice to him. Mr. Mixsell knew his son’s, the endorser’s, residence at the time, and corresponded with him; and Col. Hutter proved he got the address of the endorser from the father, and he put into the post-office himself a notice directed to that address.</p> <p>“ As to the notice served on Mr. Sherer, which has been given in evidence, it is impossible to distinguish this case from Etting v. Schuylkill Bank, 2 Barr 355; I therefore instruct you that the notice of the 23d June was not sufficient notice of the dishonour of the note. But under the authority of Levy v. Peters, 9 S. & R. 125, I instruct you that, if you believe the defendant paid the sum of $500 on account of the note in October 1855, it dispenses with the necessity of proving demand and notice of protest; and this, if it was done, being an acknowledgment of liability, it is an acknowledgment of the liability created by the endorsement, namely, a joint liability; that is, if you believe notice was served on Mixsell.</p> <p>“ As regards the demand, as the note is made payable at the Easton Bank, it is sufficient evidence of the dishonour of the note, if the defendant had no funds to his credit in the bank, at any time during banking hours of the day when the note fell due; and this may be proven by an examination of the account of the bank.”</p> <p>To this instruction the defendant excepted; and a verdict having been rendered for the plaintiff for $1286.76, the prothonotary, by direction of the plaintiff’s attorney, entered judgment nisi, notwithstanding a motion for a new trial, which the court refused to strike off, and discharged the rule for a new trial; whereupon the defendant removed the cause to this court, and here assigned for error: 1. The allowance of the amendment nunc pro tunc, and directing the trial to proceed in the absence of a proper return as to Philip Mixsell. 2. The admission of the evidence as to the custom of the bank in crediting partial payments as deposits. 3. The charge of the court. 4. The refusal to strike off the judgment nisi entered by the prothonotary.</p>

Error, to the Common Pleas of Wayne county. This was an action on the case by The Delaware and Hudson Canal Company against John Torrey, for obstructing the navigation of the plaintiffs’ canal, by the discharge of saw-dust from the defendant’s mill, into the west branch of the Lackawaxen river, in such a manner as to allow it to enter the feeder of the company’s canal and basin. The west branch of the Lackawaxen was declared a public highway, by Act of 1st February 1808.

This was an action of trespass by Elisha W. Sweet against Stephen Pierce and Gr.

<p>Error to the Common Pleas of Bradford county.</p> <p>This was an ejectment by Alanson B. Smith against Samuel Kellum, Charles Kellum, Hampton Updyke, S. S. Bradley, Peter McCracken, and O. A. Holden, for 160 acres of land in Durel township.</p> <p>The land in controversy was originally settled, in 1794, by Benjamin Ackla, who by his will devised it to his five sons, Amos, John, Jonathan, Benjamin, and William. In 1848, Israel Smith was the legal owner of 30 acres of this tract, set off to Amos Ackla, and known as the “ Amos Ackla claimand the equitable owner of another part of the “ Benjamin Ackla farm,” containing one acre, and known as the “ mill lot.” He was also the equitable owner of an adjoining tract of 600 acres, known as the “ Sarah Morrison tract.”</p> <p>In the summer of 1848, Israel Smith caused the legal title to the mill lot and the Sarah Morrison tract to be conveyed to Bell & Company, under an arrangement that they should hold the property as security for his indebtedness to them, and also for future advances which they agreed to make, -to enable him to improve the mill lot. At this time, Smith was largely indebted to Bell & Company, and other creditors, and was apparently insolvent.</p> <p>On the 13th December 1848, Saunders & Crook obtained a judgment against Israel Smith, for $279.95, which was revived in 1855, without notice to terre tenants, and under it, the property in dispute was levied upon and sold by the sheriff to Alanson B. Sihith, the plaintiff. He received a deed from the sheriff, on the 20th December 1855, under which he claimed title to the premises.</p> <p>On the 6th May 1850, the whole of the Benjamin Ackla fa.rm, including the mill lot, was sold by the sheriff, under an execution against Israel Smith, and purchased by Bell & Company. The sheriff’s deed to them was executed on the 9th of the same month; and under this sale, the defendants deduced their title to the Amos Ackla claim and the mill lot. They showed title to the remainder of the Benjamin Ackla farm, under the other sons of Benjamin Ackla, deceased.</p> <p>On the 24th November 1854, Edward Overton purchased from Bell & Company for $6000, the mill property, the Ackla farm, and another tract; the deed was executed on the 7th March 1855; on the 11th April, Overton was put in possession by an amicable ejectment; and on the 23d June, he paid $1000 of the purchase-money.</p> <p>At this time, Israel Smith was in possession, under an agreement to run the mill for Bell & Company. And on the 19th May 1855, he applied to the Court of Common Pleas, by affidavit, for restitution of possession; claiming that Bell & Company only held the title to secure the advances made to him; that he had been in possession and expended large sums in improving the property; and that Overton had been placed in possession during his temporary absence. In September 1855, the rule obtained by him was discharged.</p> <p>On the 24th May 1855, Edward Overton, by articles, sold an undivided moiety of his purchase to Samuel Kellum, for $4000.</p> <p>On the trial, the plaintiff, in order to rebut the proof of title, given by the defendants, offered to prove by Israel Smith, and others, “ that the said Israel Smith, some time in the year 1848, purchased the mill property containing about one acre, and a part of the land in dispute, of George Tome, who held the legal title to the same in trust for the West Branch Bank at Williamsport; and in the latter part of October 1847, paid one thousand dollars in full for the same. That being largely indebted in the city of Baltimore and elsewhere, among whom was his indebtedness to Saunders & Crook, who afterwards obtained judgment against the said Israel Smith, No. 38, February Term 1849, revived the same, and sold the property in dispute at sheriff’s sale on said judgment to the plaintiff. That said Israel Smith being desirous of procuring means to rebuild the saw-mill, and make other improvements on said mill property, it was agreed between him, the said I. Smith, and the said Bell, Hollenback & Hand, that they should let him, the said Smith, have store goods, and make to him advances to help him, the said Smith, as he desired; and the said Smith should execute to them, the said Bell, Hollenback & Hand, or cause to be executed to them, a conveyance of the title of the mill property aforesaid, a,nd give them a judgment-note of one thousand dollars, to be entered up so as to keep the said Bell, Hollenback & Hand secure, and prevent the creditors of the said Israel Smith from taking either his personal or real estate from him. That after the said Israel should get through and adjust his difficulties with his creditors, and should pay them, the said Bell, Hollenback & Hand, the amount of his indebtedness to them, they would convey to him the legal title to the mill property aforesaid. That in pursuance of said agreement, the said Israel Smith caused the said title to the mill property aforesaid to be transferred, by the said Tome, to the said Bell, Hollenback & Hand, and gave them a judgment-note of one thousand dollars to gain advances and secure them against his creditors, which was entered of record No. 158, December Term 1847. That subsequently, when the entire property was advertised for sale by virtue of a vend, expo., issued by E. Overton, Esq., on No. 311, September Term 1849, the said Israel Smith went to the said Bell, Hollenback & Hand to see them upon the subject of the property being sold, and it was agreed between them, that the said Smith should suffer the property, advertised for sale as aforesaid, to be sold by the sheriff, and that they, the said Bell, Hollenback & Hand, would purchase the same, and take the title and hold the same for the said I. Smith, upon the terms of the first arrangement, until the said Smith should pay them off his indebtedness, and till he could safely hold the title as aforesaid. And had it not been for the arrangement aforesaid the said Smith would have paid off said judgment, and the sale aforesaid would not have taken place. That he brought a letter from the said Bell, Hollenback & Eland to Mr. Elwell, who was acting as their attorney, to bid the property in for them. That said Smith, in order to have the property sold for the least possible amount, used means and prevented others from bidding on said property at said sheriff’s sale. That the said Bell, Hollenback & Hand gave notice, by their attorney, that they held a part of the property, to wit, the mill property; and that the moneys arising from said sale were applied (over and above costs of sale which, by the arrangement aforesaid, the said Smith was to pay), on judgment No. 158, December Term 1847, given to secure future advances as aforesaid. And that from the first arrangement aforesaid, the said Smith has had the entire and exclusive possession of the property aforesaid, exercising all the acts of ownership that the said property is capable of. That the property was assessed as the property of the said I. Smith, and the taxes paid by him. That the said Smith has put up a double saw-mill, a grist-mill, and other buildings, and made improvements on the property aforesaid to the amount of seven thousand dollars, and paid said Bell, Hollenback & Hand, on advances made as aforesaid, about $4390. All of which the said E. Overton had legal notice, before his purchase of Bell, Hollenback & Hand.”</p> <p>To this offer the defendants objected, but the court admitted the evidence and sealed a bill of exceptions.</p> <p>The plaintiff further offered to prove by Israel Smith, “ that if the arrangement had not been made with Bell & Co. to purchase the property, or if they had refused to make it, he would have made the arrangement with some other person, or would have procured the means to pay the debt; that he had the means to have paid the debt, and could have made an arrangement to have had the property bid off for him.” The court admitted the evidence, and the defendants excepted.</p> <p>The defendants’ counsel presented certain points in writing, upon which they prayed the court to instruct the jury, the 4th and 7th of which were as follows :—</p> <p>4. That the alleged agreement between Israel Smith and William H. Bell, George W. Hollenback, and Jacob Hand, that they should, at the sheriff’s sale, on the execution of William Gibson’s use v. Israel Smith, bid off the property, and hold it to secure the indebtedness of Israel Smith to them, was void by the statutes of frauds and perjuries; and they, as the purchasers at that sale, had a right to sell the property to whomsoever they pleased, and the plaintiff claiming by virtue of a lien and sheriff’s sale, since they thus acquired the title, cannot recover.</p> <p>7. That if Israel Smith caused the legal title to be conveyed to Bell & Co., and then gave notice to Mr. Overton that he retained the possession as their agent, and that the property was theirs, his possession was not constructive notice of any equity remaining in him; and he is, by such acts, estopped from setting up any title against Mr. Overton, the grantee of Bell & Co., and in the absence of actual notice of fraud brought home to Mr. Overton, before his purchase of Bell & Co., he and those claiming under him are entitled to hold the property, not only as against Israel Smith, but also against a purchase, at sheriff’s sale, of Israel Smith’s interest under a judgment attaching as a lien after the sale to Mr. Overton.</p> <p>In answer to these points, the court below (White, P. J.) instructed the jury as follows: — “ If the jury believe the evidence of Israel Smith, the agreement of Bell & Co. to purchase for him and to hold under the arrangement stated, created a resulting trust, even though there had been no design to delay, hinder, or defraud other creditors. If the jury should find that the arrangement between Bell & Co. and Smith was intended to hinder, delay, or defraud creditors, then Edward Overton, the vendee of Bell & Co., stands in no better position than Bell & Co., and cannot be regarded as a bond fide purchaser without notice. First, because the possession of Smith was constructive notice of his interest, so far as the rights of creditors are involved. And secondly, because, on the 19th of May 1855, before any portion of the purchase-money was paid by him to Bell & Co., he had actual notice of Smith’s interest, or such notice as ought to have put him on inquiry; for on that day, Smith filed an affidavit in the case of Edward Overton v. Bell, Ilollenbaek & Hand, in the Common Pleas of Bradford county, setting out his interest in the premises, as the foundation of a rule to-show cause why restitution should not be awarded.”</p> <p>To this charge the defendants excepted; and a verdict and judgment having been rendered for the plaintiff, for the “ mill lot,” and the “ Amos Achia claim,” and in favour of the defendants, for the residue of the land, they sued out this writ, and here assigned for error, inter alia : 1. The admission of the testimony of Israel Smith. 2. The answers of the court below to their 4th and 7th points.</p>

<p>Error to the Common Pleas of Warren county.</p> <p>This was an action on the case by Silas Lacy against Lewis Arnett and B. S. Orr, for maintaining a mill-dam in the Conewango creek, a short distance above its confluence with the Allegheny river, whereby the plaintiff’s lands were overflowed.</p> <p>The mills and dam of the defendants were first erected in 1812 or 1813. The dam was of a temporary character, intended for driving a saw-mill. In 1818 or 1819, they were owned by James Arthurs; and Jacob Hook was the owner of the land now vested in the plaintiff, and in respect to which this action was brought.</p> <p>James Arthurs testified that, at this time, “ Hook asked me, one day, what I’d say, if he’d pull down that dam some day, or what I’d give him for the privilege of attaching the dam to his land, and of the water; I told him I would give my horse, saddle, &c.; he said, It’s a bargain, and I gave them to him.”</p> <p>In pursuance of this agreement, Arthurs erected a more permanent dam, together with a grist-mill, which, with the saw-mill, continued in operation from the time of their erection, and were driven by the water raised by the dam.</p> <p>In summer, this dam was leaky and required repairs; it was occasionally rebuilt by different owners; and in 1849, a new dam was erected a short distance below the old one, with the assent and at the instance of Thomas Struthers, who owned the land to which both the old and new dams were attached. This was the structure complained of. It was in evidence that the plaintiff, when he purchased, had full notice of the right to back the water on this land, and of the extent of it.</p> <p>In the course of the trial, A. H. Ludlow was offered as witness by the defendants, to prove that he surveyed a piece of land in 1845, embracing that of the plaintiff, when it was held by a former owner, and that he surveyed above high water mark. The court admitted this evidence, and the plaintiff excepted.</p> <p>The plaintiff’s counsel presented certain points in writing, upon which he requested the court to charge the jury; the 2d, 4th, 5th, and 6th of which were as follows:—</p> <p>2. In estimating the extent of the right acquired by the defendants, through the long continuance of their dam, they are limited to that which they had acquired in 1849, when they erected their new dam, unless it already appear that, since the erection of their new dam, they raised the water to no greater height than before.</p> <p>4. If the new dam raises the water to a greater height than the old one, or to an elevation above that which they had steadily and commonly raised it, for the period of twenty-one years prior to 1849, the plaintiff is entitled to recover, if the effect of such raising has been to injure the land possessed by him.</p> <p>5. If the jury believe that the new dam floods the plaintiff’s lands, at any stated season of the year, to a greater extent than the old one, in the same season or stage of water, and so as to cause greater injury to plaintiff’s land, they must find for plaintiff. And that, although defendants and previous owners of the old dam, by tightening the old dam by temporary fixtures, raised the water, a part of each season, as high as the new dam raises it.</p> <p>6. If the jury believe that when Mr. Hook owned the tract including plaintiff’s land, he, by verbal grant, sold to Mr. Arthurs the right to attach his dam to the shore, without specifying how high it was to be raised, and that Arthurs and his successors built a dam which, in the summer season, leaked to so great an extent that the- top of it was dry and out of water (and which they tightened by temporary fixtures each season, and even then, did not succeed in making the water run over but about one-third or one-fourth of the summer season); the fact that such temporary fixtures were made, did not give defendants the right, after twenty-one years’ continuance of the old dam, to build a new dam, of whatever height, that backed the water over plaintiff’s land, for a considerable portion of the time, to a greater or more injurious extent than the old dam had done.</p> <p>In answer to these points, the court below (Derickson, P. J.) instructed the jury as follows:—</p> <p>“ 2. The defendants could not erect a dam higher than the prior one, as it existed in 1849, wThen they put up the new one; and if they did, so as to create a greater flow of water in the land of the plaintiff, it would be at their own risk; but if the new dam did not flow the water further back than the old one did, at any one time, in like or ordinary stages of water, during its existence, there would be no liability.</p> <p>“ 4. If the water was not flowed back by the old dam, at any . time, to an extent equal to that by the new one; or, in other words, if the flow from the new one, in like stages of water, is greater than it was at all times from the old one, the plaintiff would he entitled to recover. And if by the words ‘ steadily and commonly’ is understood, that the flow was never as great, in like stages of water, in the old one, as in the new one, the law is with the plaintiff; but if it is not so, the law is with the defendants.</p> <p>“ 5. If the defendants, or those under whom they held, had the right to erect the old dam and it was a leaky one, but they tightened it at various times, so as to make the water flow back to a point beyond which the water from the present dam did not go, the plaintiff is not entitled to recover; because the right, having once existed and being exercised, is a continuous one, of which the defendants are not to be deprived without their consent.</p> <p>“ 6. If the defendants, or their ancestors, had a right to raise a dam, and they exercised it, and during the existence of the structure the water was, by the tightening of the dam by means of temporary fixtures, flowed back as far as it has gone since, dnring similar stages of water, the plaintiff cannot recover.</p> <p>“ When Hook gave to Arthurs the right to join to his land, nothing appears to have been said about the height of the dam. In this situation of things, the law would presume it to be to an extent sufficient to answer the purpose for which the privilege was wanted — nothing more, nothing less.”</p> <p>To this charge the plaintiff excepted; and a verdict and judgment having been given for the defendants, he removed the cause to this court, and here assigned for error: 1. The admission of Ludlow’s testimony. 2. The charge of the court below.</p>

<p>Error to the Common Pleas of Susquehanna county.</p> <p>This was an action on the case by Elias T. Young against The New York and Erie Railroad Company, to recover- damages arising from the construction of the defendants’ railroad, along the bank of the Susquehanna river.</p> <p>Under the Act of 23d March 1803 (Brightly’s Purd. 599), the grantor of the plaintiff had erected a dam across the Susquehanna river, below where the alleged injury took place, for the purposes of his mill. And the injury complained of was caused by throwing dirt over the bank of the river, so as to make an embankment along the shore; and by carrying out the bank at one place, where there was a natural, projection, called “the point,” so as to divert a portion of the water from the plaintiff’s mill, and fill up the channel to the same.</p> <p>The defendants were authorized by the Act 16th February 1841 (Pamph. L. 28), to extend their road through such portion of the county of Susquehanna as, in the proper construction of their road, they might find it necessary. And in pursuance of the authority given them, they procured a conveyance of the right of way, through the mill lot of the plaintiff; and the conveyance of all the land along where the injury complained of was .done, from other persons, and the right of way through the same.</p> <p>A high bluff came down to the river along where the injury complained of was committed. The railroad was cut into the bluff, along the shore of the river; and it became necessary, for its protection, to carry out an embankment some feet into the river, along this bluff. The plaintiff was not the owner of the land at this point, but his mill was situated about 150 rods below, on the same side of the river.</p> <p>The court below (Bullock, P. J.), in answer to points presented by the defendants’ counsel, instructed the jury as follows:—</p> <p>“ In this case the plaintiff brings suit to recover consequential damages, for injuries .which he says he has sustained by the defendants having obstructed the course or channel of the water running to his mill, and thereby diminishing his supply of water and injuring the mill privilege. It appears from undisputed testimony, that prior to 1813, a man by the name of Buck, erected a mill and built a dam from the main land to Buck’s Island, as it was called; which mill and dam have been kept by said Buck and those claiming under him to the time of bringing this suit. That the defendants are a corporation created by statute of the state of New York, and coming into this state by virtue of an Act of Assembly of this state, passed in 1841, by which act they were authorized to make and construct a portion of their road within the county of Susquehanna, in the manner mentioned in said Act of Assembly. It is alleged, that in the making, construction, and keeping in repair of this road by the defendants, the injury complained of was committed. The evidence in relation to this injury, has occupied much time, and in calling it to your minds somewhat in detail (as is here done), you will judge how far any damage has resulted to plaintiff, consequential upon acts done by defendants, as alleged by him. The witnesses differ considerably in their statements of existing facts, and it is for you to determine, from the whole evidence, whether any damage has been sustained by the plaintiff. An important question here arises, upon matters of law connected with the case. We are all bound by the laws as construed by our courts of the dernier ressort; and whatever our feelings and sympathies may be in a case, they must be controlled by the decisions of the Supreme Court. Several propositions have been submitted by the counsel for the defendants, on which we are requested to give you our opinions and directions, in the order in which they are presented to us.</p> <p>“1. We are requested to give you in charge — ‘That no title having been shown out of the Commonwealth, to the lands adjoining the dam and saw-mill of the plaintiff on the Susquehanna river, he is not the owner of said lands so as to authorize the erection of said dam; and said dam is such a nuisance as that plaintiff cannot recover for any injury to the same, for consequential damages arising from the acts of defendants, above the dam and along the bank of the river.’</p> <p>“ This being submitted to us as matter of law, we say to you as our opinion by which you are to be governed, until such opinion is reversed by a higher court, that from the long-continued and undisputed possession of this mill privilege and the grounds there* with connected, by the plaintiff, and those under whom he claims, and the dam having been erected more than forty years ago, as appears by the testimony, we think the dam, and the erection of the same, cannot, in any point of view, be considered such a nuisance as to prevent a recovery in this suit, notwithstanding no title has been shown out of the Commonwealth, if the evidence otherwise warrants a recovery.</p> <p>“2. We are further requested to give you in charge — ‘That the defendants, by their charter, had full power to extend their road through any portion of the county of Susquehanna they might find necessary in its proper construction, and for any consequential damages arising from the proper construction, are not responsible to the plaintiff.’</p> <p>“ To this we reply, and give you as the law in the case, that the New York and Erie Railroad Company were authorized by the Act of 1841 to make their railroad, or a portion of the same, in Susquehanna county, and are not liable for consequential damages arising or resulting to the plaintiff while acting in pursuance of the rights and privileges given by said act; and that if, from the necessity of the case, consequential damages resulted or happened to the plaintiff, or to any individual, the company will not be liable for the same. Such is the decision of our Supreme Court, as found in 6 W. & S., pages 101-112, and to which we must conform. If they have gone beyond the rights granted them by the act in question, then they are liable. To illustrate — If it had become necessary in making the road to interrupt and turn the course of some small stream of water, which supplied a large tannery, by which said tannery was rendered of no value, yet no damage could be recovered of the company, for the act authorizing the making of the road protects them from such unavoidable consequences. If, on the other hand, the company could, by incurring additional expenses to a reasonable amount, have made the road without obstructing said stream, they would be liable for the damage sustained.</p> <p>“ 8. We are requested further to give you in charge — ‘ That, as the acts complained of were all done in the prosecution of the rights and the exercise of the powers conferred by the statutes of this state upon the defendants, the plaintiff is not entitled to recover.’</p> <p>“ To this we answer and say, that it is for the jury, and not for the court, to decide whether the company, in making the road as complained of by the plaintiff, did go beyond the rights granted them by the legislature.</p> <p>“4. We are also requested to give you in charge — ‘That if the plaintiff, or those under whom he claims, were or had been the owners of the lands adjoining the dam at the saw-mill, still the right to erect the dam, under the provisions of the Act of 1803, gave no power or control of the waters of the Susquehanna which the state might not at anytime annul, or revoke, or grant to others; and that the grant by the state to the defendants, fully justifies them in all they did in the construction of their road, upon the plaintiff’s own evidence, and that he is not entitled to recover.’</p> <p>“ To this we say, that the state, as appears by the decisions read, had the full right to revoke or annul any privileges given to the plaintiff, or those under whom he claims, by the Act of 1803; that the defendants had the full right to make said road as provided in the Act of 1841; and if the jury believe the company did not, in making said road, transcend those rights so given, the plaintiff cannot recover. Thus, if the jury believe that damage has been sustained by the plaintiff, by reason of the embankments having been extended into the river, or the natural channel been obstructed by the acts of the defendants, so as to diminish the supply of water for the mill by changing the current of water running to the mill, or otherwise, and that the defendants might, by incurring reasonable expense, have made and constructed the road further back, or have deposited the dirt in constructing the road, or in removing the same from the slides, in some other place, so as to have avoided causing the obstructions and injury to the plaintiff complained of, then the plaintiff would be entitled to recover; otherwise, he would not be so entitled; and in reference to reasonable expenses so to be incurred, we would say, that it could not be expected that defendants would have to call into requisition an immense amount of wealth to have changed the location of the track, or to avoid making the obstructions (if any), but it means exactly a reasonable and rational expenditure to surmount the obstacles presented. The jury have heard the testimony of several witnesses upon this point, and their statements as to the effects and expense of cutting further back into the hill, and the situation of the travelled road not far up the hill, and the rise of ground beyond that, as detailed, in the evidence, and will decide on this point as they think the evidence may warrant.</p> <p>44 5. We are requested to charge you, — 4 That all the acts proven by the plaintiff to have been done by the defendants, were within the powers conferred by the legislature, and for them the defendants are not responsible to the plaintiff.’</p> <p>44 To this we answer and repeat,4 that it is for the jury, and not for the court, to decide whether the acts done by the defendants, were within the powers conferred by the legislature.’ They have heard the law read; they are to judge from the facts, whether the defendants have done anything in contravention of or beyond the rights granted by that law.</p> <p>44 6. We are requested lastly to give you in charge, — 4 That the only responsibility for damages to which the defendants were liable for acts done by them in constructing their road, are those mentioned by the statutes ; and they are not in any case liable for consequential damages.’</p> <p>“ To this we again say, that the company are not liable for consequential damages arising from acts done in making the road, if they could not, without unreasonable expense to the company or undue injury to the road, have so changed the site of the same as to avoid having caused such damages, and that is matter of fact for the jury.</p> <p>“ The counsel who just addressed you on the part of the defence requested us to charge you, as matter of law, that if the plaintiff can recover anything, it can only be for injuries sustained within six years prior to the commencement of this suit, which was commenced on the 7th July 1855. We think this is correct, and that the plaintiff is entitled to the actual damage he has sustained in the premises, between the 7th of July 1849 and the 7th of July 1855, if you think the evidence, under the law as laid down to you, will entitle him to a recovery. A deed, or rather the record of a deed, has been given in evidence, of a sale of this mill property, made by the plaintiff, about the date of bringing this suit, for the sum as expressed in the deed of $20,000; and this was urged as going to show he has sustained no loss, it being for a far greater sum than some of the witnesses estimated the value of the property. This may be some evidence, or have some bearing to that effect, but very small or faint on that point. The consideration named in the deed very frequently is but a small index of the actual sale, or the real value for which the property sold. It may have been an exchange, or perhaps no pay received, or it may be for the full amount expressed, but it is entitled to only slight consideration in making any estimated value of the property. The true question is, whether the defendants had made themselves liable, in view of the instructions here given you, and from the evidence in the case; and if so, then the injury actually sustained by the plaintiff to the bringing this suit, should be the measure of your verdict; and if not, then should it be for defendants.”</p> <p>To this charge the defendants excepted; and.a verdict and judgment having been given, for the plaintiff for $1400, they removed the cause to this court, and here assigned the same for error.</p>

This was an action of debt by G. B. Eldred, to the use of Coe Wells, against John Bennett, on a bond given by Jeremiah Yosburg, as principal, and the defendant, as surety, to the said G. B. Eldred, as the sheriff of Susquehanna county, on a claim of property, by the said Jeremiah Yosburg, to eight firkins of butter, for which Coe Wells had sued out a writ of replevin against him.

<p>Error to the Common Pleas of Warren county.</p> <p>This was an action of assumpsit by Orange White against Jonathan Smith and Elijah Robinson, on the contract of guaranty, w-ritten at the foot of the following lease:—</p> <p>“ Article of agreement entered into between Orange White of the first part, and Jonathan Smith of the second part (viz.) that White rents to Smith the farm known as the Crandall farm, with twelve good cows in good condition, to come in by the first of May, and an ox team, for three years from the first day of May next; for which Smith is to pay to White three hundred dollars; one hundred dollars to be paid on or before the first day of January of each year; and Smith is also to chop and clear off and fence and cut up the balance of the rail timber and saw logs on. twelve acres of land on the aforesaid farm, where White shall direct; six acres to be cleared off by the middle of Sept. 1852, and six acres by the middle of Sept. 1853; White is to run all providential risks of the aforesaid property, and Smith is to be accountable to White for all accidents or damages that happens to the aforesaid property, by or through the careless or neglect of the aforesaid Smith; and Smith is to return to White at the end of the three years the aforesaid property in good condition for use.</p> <p>Orange White</p> <p>Jonathan Smith.”</p> <p>“ Sugar Grove, Feby. 26, 1851.</p> <p>“ I hereby bind myself to the aforesaid White for the true and faithful performance of the aforesaid agreement on the part of the aforesaid Smith in case Smith should die within the three years I agree to pay up to that time and deliver the property to White as above stated.</p> <p>Jonathan Smith</p> <p>Elijah Robinson.”</p> <p>“Sugar Grove, Feby. 26, 1851.”</p> <p>On the 6th January 1853, White, the plaintiff, distrained for $86 rent, due on the above lease, on the 1st of January; and sold the property of Smith to an amount sufficient to pay the rent.</p> <p>At June Term 1853, Smith brought an action of trespass against White, for an illegal distress, and recovered a verdict and judgment for $91.50, which was paid by White.</p> <p>At September Term 1854, White brought an action of assumpsit against Smith, for the same sum of $86, due him for rent, and the parties agreed upon a case stated, in which the above facts were set forth. The court gave judgment for the plaintiff for $86, on the case stated, which was not paid, Smith being insolvent.</p> <p>This action was then brought upon the contract of guaranty, to recover the rent due on the 1st January 1853; and also damages for the loss of two cows, and the greatly decreased value of the oxen and remaining cows, from the carelessness and neglect of Smith; and for the failure on the part of Smith to comply with the parts of the contract relating to chopping, clearing, &c.</p> <p>On the trial, the court below (Galbraith, P. J.), in answer to points presented by the plaintiff and defendant, instructed the jury that there was no obligation on Robinson to pay any rent, unless Smith should die within the three years named in the contract on which the suit was brought; and in reference to this contract the learned judge charged the jury as follows:—</p> <p>“ This latter writing is without point, from beginning to end, and the first question arises, as its true construction, which embraces the plaintiff’s 3d, and the defendant’s 4th point. It is contended by the plaintiff, that in order to give every part of the writing its full meaning, it is necessary to place a period after the word Smith, in the third line from the top; that the first sentence then expresses the intention of the obligation that Smith should faithfully perform the agreement; that the latter sentence is an extension or additional obligation, on the contingency of the death of Smith, during the term, which might not be provided for by the general obligation expressed in the first sentence. The defendants contend that it is really hut one sentence, but one idea intended to be expressed, and that is the liability of Robinson, in case of the death of Smith, during the term. It is somewhat difficult to account for Smith’s signing the agreement at all. The only reason that can be imagined is, that it might protect his estate from the performance of the whole agreement in ease of his death, at any period within the tenancy; and it is somewhat doubtful whether it was necessary even for that. The argument has some plausibility on both sides, but we think the weight of it is with the defendants, and so determine; and this would be conclusive against the plaintiff’s right to recover.”</p> <p>The learned judge also instructed the jury, that the recovery by White against Smith, for the amount of the rent, was conclusive against another recovery in this suit for the same cause; and that, upon the whole case, the plaintiff was not entitled to recover, and he, therefore, directed them to find for the defendants.</p> <p>To this charge the plaintiff excepted; and a verdict and judgment having been rendered for the defendants, he sued out this writ, and here assigned the same for error.</p>

<p>A justice of the peace is only entitled to a fee of 18|- cents, for a copy of the proceedings in a case before him; and if he charge or demand a greater amount, he renders himself liable to the penalty for taking illegal fees.</p> <p>The penalty is incurred by charging for a service for which no fee is provided by law: the Act of 1814 is an express prohibition of all compensar tory fees.</p>

<p>Error to the Common Pleas of Tioga county.</p> <p>This was a judgment entered by virtue of a bond and warrant of attorney, dated the 19th December 1853, in favour of Sylvia Parmentier against G. C. Wheat, Warren Wells, and Griffin Beck-with, conditioned for the payment of $3295.97, as .follows: $1100 on the 19th December 1854; $1300 on“the 19th December 1855; and $1095.97 on the 19th December 1856.</p> <p>This bond and warrant of attorney were given in pursuance of the following contract between the parties, of the same date:—</p> <p>“ An agreement made this nineteenth day of December, a. d. one thousand eight hundred and fifty-three, between Sylvia Parmentier, of Brooklyn, New York, by her attorney in fact, Edward Bayer, of the first part, and C. G. Wheat, Warren Wells, and Griffin Beckwith, of Jackson, in the county of Tioga, Pennsylvania^ of the second part, witnesseth: That the said first party, for and in consideration of the payments, covenants, and agreements hereinafter mentioned, to he made and performed hy the said second parties, is to sell and convey by a good and sufficient deed of general warranty, to the said second parties, all that certain lot or piece of land (with the rights and appurtenances), lying and situate in the township of Tioga, and state of Pennsylvania, and bounded as follows, to wit: Beginning at the first green hemlock tree on the west side of Crooked Creek, about thirty rods below the old upper saw-mill on the first party’s premises; thence up along said creek, by its several courses (including said mill and the privileges thereof), to the place where the said creek bends its course towards the Mansfield farm-house; thence across said creek to a small elm-tree on the opposite bank; thence south seventy-eight degrees west, seven rods, to a large elm-tree on the south bank of the cove; thence across said cove south eighty degrees west, sixty-three rods, to a stake in the line of land belonging to the estate of George Daggett, deceased; thence northerly along the said line to the place it intersects said Crooked Creek; thence down said creek according to its course, to a large buttonwood-tree, standing opposite to the first roll-way, above the said Mansfield fárm-house; thence north eighty-seven and one-half degrees east, to the place of beginning; supposed to contain about eighty acres, more or less, and being the same land contracted to Seth Daggett, and by an arrangement with him now hereby contracted to said second parties, by their giving a judgment-bond to secure the payment of the purchase-money for the same with interest, as hereinafter mentioned.</p> <p>“ In consideration of which, the said second parties are to pay to the said first party, the full sum of three thousand two hundred and ninety-five dollars and ninety-seven cents, with interest on the whole sum unpaid at the time of each payment, as follows, to wit: They are to cut of such lengths as directed by the said first party or her agent, from time to time, convey to the Gang saw-mill on said premises, without splitting or injury, and there manufacture and stick up, in a good and workmanlike manner, at least five hundred thousand feet of merchantable lumber, from the timber on that part of the Mead warrant, belonging to said first party, lying east of said Crooked Creek, each and every year, until the whole of the white and Norway pine timber on said, land, suitable for market lumber, is manufactured and stuck up at said mill; including all up to the Willard slide on the south-west, and all on the top of the hill as far south-east as the place Philo Olmstead left off cutting, supposed to amount in all to two and one-half or three millions of feet. And the said second parties are to take all of the said timber clean, as far as they go, from time to time, on said land, and manufacture from the same, and all the timber taken from said land, as much market gang lumber of the kinds designated by the said first party or her agent, from time to time, as practicable, by using all necessary skill and diligence to make such from all pieces that may be rendered marketable by edging or otherwise; and for cutting, getting in, and manufacturing as aforesaid, and sticking up in a suitable place at said mill and delivering to said first party, the second parties are to have the sum of five dollars per thousand feet for all the merchantable lumber they make from the timber on said land, except the sample and mill culls, which are to belong to said second parties; two dollars and fifty cents of which is to be endorsed on this contract to apply on purchase-money from time to time, as the quantity of lumber manufactured, piled, and delivered to said first party is ascertained by estimate or measurement by the parties or competent persons employed by them for that purpose, until the whole of the said purchase-money and interest as aforesaid is fully paid; and the balance, two dollars and fifty cents, in cash; provided the said first party is to retain from the price of the first five hundred thousand feet the amount of a certain note and interest, given by the second parties to the first party, for mill gearing, &c., sold to them, and after the payment of the said note and interest as aforesaid, the said five dollars per thousand feet is to be paid to the said second Provided, there parties from time to time, as aforesaid, in cash, shall be no estimate, measurement, endorsement, or payment at any time until after at least one hundred thousand feet of the said lumber is ready to be delivered, which has not been before estimated or measured. And it is further agreed, that the said first party is to keep in good repair the bridge built by her, near the residence of William Patrick; and the said second parties are to have the use of the same.</p> <p>“ And the said second parties are to build as good a bridge across the said creek opposite the dwelling of Seth Daggett, and keep said bridge in good repair; and make and keep in good repair the road between the said bridges; and the said first party is to have the free use of said second parties’ bridge, and the road between the said bridges, and the road beyond the said second parties’ bridge, leading to her land east of Crooked Creek; and she is to make and keep in good repair the road from her said bridge to the plank-road, and the said second parties are have the free use of the same.</p> <p>“ The said second parties are to give their judgment-bond to secure the payment of the said purchase-money, with interest, to the said first party; and as soon as practicable, after 'the said timber on said land is all manufactured, stuck up and delivered to her as aforesaid, she is to execute and deliver to the said second parties said warranty deed for said premises, and not before.</p> <p>“ The mill culls are to be thrown out and not piled with the other lumber, and the sample cull lumber is to be selected at the times the said lumber is estimated or measured, and delivered to said first party, and the said second parties are not to have any but what is strictly sample cull lumber, and any that the said first party is willing to pay for manufacturing, &c., at the price aforesaid, shall not be considered such. And it is understood that the amount of the said note and interest given for mill gearing, &c., is to be deducted from the amount of the cash payments on the first five hundred thousand feet of lumber manufactured by said second parties, as aforesaid.</p> <p>“ In witness whereof the said parties have hereunto set their hands and seals, the day and year first above written.</p> <p>“ S. Parmentier, [l. s.]</p> <p>“ By her attorney in fact, Edward Bayer, ~l. s.]</p> <p>“ O. G. Wheat, =l. s.]</p> <p>“ Warren Wells, [l. s.]</p> <p>“ Grieein Beckwith.” [l. s.]</p> <p>The defendants, and the parties to whom they had assigned their interest in this contract, proceeded to manufacture lumber for the plaintiff, as provided in the agreement, and continued to do so at intervals, until December 1856, at which time, after giving them the credits provided for in the contract, there was a balance of $1012 due on the bond.</p> <p>On the 21st March 1857, the plaintiff issued a fi. fa. for this balance, which was levied on personal property; and on application of the defendants, a rule was granted to show cause why the judgment should not be opened and the defendants let into a defence. Whilst this rule was pending the defendants got in and manufactured about 30,000 feet of lumber previously cut, and on the 4th August 1857, the court directed an issue to ascertain the amount due to the plaintiff on the judgment; proceedings to be stayed as to $539.25, with liberty to go on and collect the residue, which was done.</p> <p>The issue was tried on the 18th December 1857, and resulted . in a verdict for the plaintiff for $514.09, for which the plaintiff issued execution; and on the 11th December 1858, the court made an order that the fund which had been paid into court by the sheriff, should remain impounded, until the plaintiff should execute a deed for the land mentioned in the contract, to William B. Keys, Benjamin Wells, Seth Daggett, and Lewis Daggett, the defendant’s assignees; to be deposited with the prothonotary and delivered to the said assignees, if the final determination of the rule should be in their favour.</p> <p>The plaintiff, thereupon, removed the proceedings to this court, and here assigned such order for error.</p>

<p>Error to the Common Pleas of Susquehanna county.</p> <p>This was an action of debt by The Commonwealth of Pennsylvania, for the use of David L. Meeker, against William Jessup and B. S. Bentley, executors of Andrew H. Rose, on the official bond of Mark Sutton, late constable of Silver Lake township, for whom the said Andrew H. Rose was surety. The bond was dated the 17th April 1854; this action was commenced on the 29th December 1857; and the defendants pleaded, inter alia, that the action was not brought within three years from the date of the bond.</p> <p>On the 16th November 1854, David L. Meeker commenced proceedings before a justice of the peace, against Sutton, the constable, under the 12th section of the Act of 20th March 1810, (Brightly’s Purd. 154, pl. 19) for a false return to an execution, and obtained judgment for $36.85 and costs. From this judgment Sutton appealed, and on the trial, there was a verdict for the defendant; the plaintiff then sued out a writ of error, and in this court, the judgment below was reversed and a venire facias de novo awarded. The cause was again tried at November Term 1857, and resulted in a verdict and judgment for the plaintiff for $189.52 and costs. A fi. fa. was issued thereon, which, on the 28th December 1857, was returned '•'■nulla bona;” and on the next day, this suit was brought.</p> <p>The court below (Wilmot, P. J.) directed the jury to find for the defendants; to which the plaintiff excepted, and here assigned the same for error.</p>

<p>Au Act of Assembly is passed, only when it has gone through all the forms made necessary by the constitution to give it force and validity as a binding rule of conduct for the citizen.</p> <p>Whether it receive the signature of the governor, or remain in his hands unreturned for ten days, or being vetoed is carried by two-thirds of both houses, its passage is dated from the time it ceased to be a mere proposition or bill, and passed into a law.</p> <p>An Act of Assembly cannot impair a contract made after it has passed both houses of the legislature, but before its approval by the governor.</p> <p>By the common law of Pennsylvania, every municipal corporation, that has power to make by-laws and establish ordinances to promote the general welfare, and preserve the peace of a town or city, may fix the times or places of holding public markets for the sale of food, and_ make such other regulations concerning them, as may conduce to the public interest.</p> <p>The right to establish markets is expressly given to the city of Philadelphia by statute.</p> <p>The right to establish a market, includes the right to shift it from place to place, when the convenience or necessities of the people demand it.</p> <p>The general right to build market-houses, and to shift them from place to place, as occasion may require, does not imply a right to build them on the public highway. The market-houses built in the middle of High street, in the city of Philadelphia, were a nuisance, until legalized by_ the Act of 1804.</p> <p>The erection and maintenance of a nuisance in a public highway, dedicated to the use of the whole people, is as liable to punishment when done by a public corporation, as by private individuals.</p> <p>When the legislature legalized the market-houses on High street, and authorized their extension, they granted privileges, but did not impose au obligation to maintain them.</p> <p>If the privilege of using the street as a market-place, was coupled with the condition that the stalls should be free, that condition was annulled by the abandonment of the privilege.</p> <p>The Act of 1804, making the stalls free to the country people for ever, was repealed by the Act of 1810, which authorized the corporation to let one half of the stalls to farmers, and the other half to butchers and victuallers, at an annual rent, not exceeding $20.</p>

<p>Errur to the District Court of Philadelphia.</p> <p>This was an action of assumpsit by George S. Twitchell against The City of Philadelphia, to recover the sum of $5750, with interest, on an alleged parol contract for the sale of a house and lot of ground at the south-east corner of Locust street and Raspberry alley, by the plaintiff to the defendant.</p> <p>On the 1st February 1854, George W. Brown, one of the defendants in the preceding ease, entered into the following contract with the Mayor, Aldermen and Citizens of Philadelphia, for the sale of one of the lots of ground designed as sites for the new market-houses, proposed to be erected in the city of Philadelphia:</p> <p>“ Whereas, George W. Brown has sold to ‘ the Mayor, Aldermen and Citizens of Philadelphia,’ and the said ‘the Mayor, Aldermen and Citizens of Philadelphia’ have bought, all those certain lots or pieces of ground, situated on the south side of Locust street and the west side of Ninth street; bounded by Locust street on the north, by Ninth street on the east, and by Shield’s alley on the south, and by Raspberry alley on the west; containing one hundred feet, more or less, on Ninth street, by one hundred and eighty-eight feet, more or less, in depth to Raspberry alley; together with all the buildings and improvements thereon, and all the rights, privileges, easements, and appurtenances belonging thereto, and to every part thereof, clear of all encumbrances, for the sum of seventy-five thousand dollars, to be paid in the bonds of the said corporation, or their successors, on the execution of the deeds. Now, therefore, the said George W. Brown, for himself, his heirs, executors, and administrators, doth hereby covenant to make, execute, and deliver a good and sufficient title for the premises, clear of all encumbrances, to the said the Mayor, Aldermen and Citizens of Philadelphia, or their successors and assigns. And the said the Mayor, Aldermen and Citizens of Philadelphia, do hereby for themselves, their successors and assigns, covenant, , promise, and agree that they will, upon the execution of the conveyances aforesaid, pay to the said George W. Brown, his executors, administrators, or assigns, the said sum of seventy-five thousand dollars, in the bonds of the said the Mayor, Aldermen and Citizens of Philadelphia, or their successors, bearing interest at the rate of six per cent., not redeemable before the year eighteen hundred and eighty-nine. Provided that if the right and power of the said the Mayor, Aldermen and Citizens of Philadelphia, to make this purchase should, before the date hereof, have been limited or abrogated by law, so that they are prohibited from making this purchase, then no claim for damages for the non-compliance with the terms thereof shall be made by the said George W. Brown.</p> <p>“ In witness whereof, the said George W. Brown hath hereunto set his hand and seal, and the said the Mayor, Aldermen and Citizens of Philadelphia, have caused their corporate seal to be hereunto affixed, the first day of February, A. D. eighteen hundred and fifty-four.</p> <p>“ Geo. W. Brown, [l. s.]</p> <p>“ Sealed and delivered in the presence of us,</p> <p>“ James Maguire,</p> <p>“Edw. Olmsted.</p> <p>“(Attest), Charles Gilpin,</p> <p> Mayor.” </p> <p>At this time, Brown was not the owner of the entire premises contracted to be sold to the city of Philadelphia; he owned a lot containing 40 feet in front on Locust street, and the residue of the premises mentioned in the agreement belonged to the plaintiff, and others.</p> <p>On the 2d February 1854, the consolidation act was signed by the governor; on the 7th, the bill of Wartman & Gross was filed, to restrain the city authorities, and their vendors, from proceeding to carry out the contracts for the purchase of the sites for the new market-houses; on the 3d April, the opinion in the preceding case was delivered; on the 4th, it was published in the daily newspapers of the city; and on the 5th, Brown entered into the following contract with the plaintiff:—</p> <p>“ Received, April 5th 1854, of George W. Brown, his note, dated April 5th 1854, at three months, for one thousand dollars, it being part of the purchase-money of lot and stables situate on the south-east corner of Locust street and Raspberry alley, which I agree to sell, clear of all encumbrances, for the sum of sixty-seven hundred dollars. The title papers to be transferred immediately.</p> <p>“ $1000. “ Gr. S. Twitchell.”</p> <p>The plaintiff alleged that this contract was entered into by Brown, as agent for the committee of councils, and brought this action to recover the balance of the purchase-money. The facts connected with the purchase of the property are fully stated in the opinion of the court.</p> <p>On the trial, the court below, in answer to points presented by the plaintiff, instructed the jury that there was no evidence before them of. a written contract within the meaning of the statute of frauds, or of such a possession as would supply the want of a writing; and that, the defendants not having acquired a right to the land, the plaintiff could not recover the purchase-money from them; and then left to the jury the question, whether there was a breach of contract for the purchase of the land ?</p> <p>To this charge the plaintiff excepted; and a verdict and judgment having been rendered for the defendants, the plaintiff removed the cause to this court, and here assigned the same for error.</p>

<p>Err,or to the District Court of Philadelphia.</p> <p>This was an action of debt by John P. Massey against The Franklin Fire Insurance Company of Philadelphia, on a policy of insurance against fire issued by the defendants to John Waughn, on the 20th October 1847, and assigned to the plaintiff on the 9th January 1854.</p> <p>■The policy was originally effected by John Minor, an agent of the defendants, residing at Fredericksburg, Virginia; by it the defendants insured John Waughn against loss by fire, to the extent of $3145, on his tan-house, and other buildings appurtenant thereto, and his stock of bark, leather, &c., therein contained, situate at Rowling Green, Caroline county, Virginia, “from the 13th October 1847, to the full end and term of one year, and also for the full end and term of any future time or times for which a premium of insurance shall be paid, and endorsed on this policy, or otherwise acknowledged in writing, by the secretary, or other authorized officer of the said corporation for the time being.”</p> <p>This policy was renewed from time to time, the payment of the premiums being made to Minor, the defendants’ agent, and by him endorsed on the policy. On the 25th October 1848, the sum insured was increased to $3420. On the 9th January 1854, the policy was assigned to the plaintiff, by Waughn the insured, and approved in due form by Minor. And subsequently thereto, it was three times renewed by him, for the plaintiff, and the payment of the premiums was regularly endorsed thereon.</p> <p>On the 16th February 1855, and on the 5th March in the same year, the defendants instructed their agent to confine their business to ordinary risks, and to decline all other insurances, whether new or renewed. And on the 30th October 1856, having received from him a report of the renewal of the policies of the plaintiff, and another, which they deemed extra-hazardous, they instructed, him to return these parties the premiums on their insurances, and cancel the policies.</p> <p>On the 1st November 1856, Minor addressed the following letter to the plaintiff:—</p> <p>“ Fredericksburg, Va., Nov. 1st, 1856.</p> <p>“ Mr. John P. Massey,</p> <p>Rowling Green, Caroline county.</p> <p>“ Dear Sir: — I received last night a letter from the secretary of the Franklin Fire Insurance Company of Philadelphia, in which he says that your property, insured per policy No. 77502, being on tanning establishment, and taken at one per cent., is declined. He adds: — ‘ We have not a risk of this kind on our books at less than two and a half per cent., which we obtain without any difficulty. Every renewal is a new contract, and the company reserves the right of rejection upon returning the premium, but the property is regarded as insured during the intermediate term.’ I should, therefore, send you a check for the premium, but having a few days ago transmitted to Philadelphia all the funds in my hands, belonging to the agency, and my private stock being insufficient for the purpose, I shall have to put it off for a few days.</p> <p>“ Respectfully, yours, J. Minor, Agent.”</p> <p>On the 11th November 1856, Minor again wrote to the plaintiff, enclosing his check for the return premium, which was received on the 13th; but on the night of the 11th, the premises insured were destroyed by fire.</p> <p>The plaintiff declared in debt upon his policy; and the defendants pleaded nil debent, and the following special plea:—</p> <p>“ And for a further plea in this behalf, by leave of the court, &c., the defendants say, that the plaintiff ought not, &c., because they say, that the said supposed renewal of the policy of insurance, whereof the plaintiff has above declared, was made as follows, and not otherwise: That one John Minor was the agent of the defendants at Fredericksburg, Virginia, with limited powers and authorities, among others, to receive applications for insurance and renewals thereof from persons desiring to be insured by and with the defendants, and to transmit the said applications to the said defendants for their approval or rejection, which applications, if approved by the said defendants, should be binding upon them as a contract of insurance, and a policy should be forthwith issued in accordance therewith; but if any such application should be disapproved by the said defendants, it should be of no force and effect, other than that, in the period intervening between the said application and disapproval and rejection, and the communication of such disapproval and rejection to the party so applying for insurance, the said application should he binding upon the said defendants, and the said party so applying should be insured in the said intervening period, but no further. That the said plaintiff, well knowing the said duties and powers of the said John Minor, agent as aforesaid, and the force and effect of such applications for insurance, did, upon a certain day and year, to wit, upon the 13th day of October 1856, make application to the said agent at Fredericksburg, Virginia, for a renewal for one year of the insurance upon the premises described in the declaration, and then and there paid to the said agent the sum of $34.20, the premium demanded for such renewal of insurance; that the said agent forthwith transmitted the said application to the said defendants, for their approval or rejection, and the said defendants immediately afterwards declined and refused to renew the said insurance, and disapproved of the same, and communicated the said refusal to the said agent, which said declining and refusal .and disapproval were forthwith, to wit, upon the first day of November 1856, and before the happening of the fire above declared of, duly communicated to and received by the said plaintiff; hut the said premium of $34.20 was not then returned by the said agent to the said plaintiff; for the reason, at that time given by the said agent to the said plaintiff, that the said agent had not then so much money to return. That afterwards, to wit, on the 11th day of November 1856, and before the happening of the fire above declared of; the said agent duly forwarded and transmitted, by mail, to the said plaintiff, a check or order upon a bank, payable on demand, for the amount of said premium, to wit, for the sum of $34.20, which check, so transmitted by mail, was received by the said plaintiff, after the happening of the said fire above declared of; and which said check, so transmitted and received by the said plaintiff as aforesaid, has, from thence hitherto, been retained and kept by the said plaintiff, and not by him returned to the said defendants or to their said agent, or to any one on their behalf. And this the said defendants are ready to-verify. Wherefore, they pray judgment whether the said plaintiff ought to have or maintain his aforesaid action thereof against the said defendants, &c.”</p> <p>To this plea the plaintiff put in a special demurrer, and assigned the following causes of demurrer: 1. That it amounted to the</p> <p>general issue. 2. That it was argumentative. 3, That it was double. 4. That instead of facts, the defendants had pleaded evidence. 5. That it was defective in not presenting an issue.</p> <p>On the trial of the issue formed by the plea of nil debent, the defendants presented the following points in writing, upon which they requested the court to instruct the jury:—</p> <p>1. There is no evidence of any authority conferred upon Minor to bind the company by receipt or contract of insurance in any form, except such as contained in the writings given in evidence.</p> <p>2. There is no evidence that Minor had authority to bind the company by receipt or contract of or for insurance, for a longer time than until the company had a reasonable opportunity to consider and reject the application, and until notice of such rejection was given to the applicant through Minor.</p> <p>3. The notice by Minor to the plaintiff on November 1st 1856, stating that the defendants declined to renew the insurance under the policy declared upon, which notice was received by the plaintiff before the fire occurred, discharges the defendants from any liability upon any contract of insurance as declared upon.</p> <p>4. The notice given by Minor to the plaintiff on November 1st 1856, and duly received by him, together with the transmission of a check for the premium, in a letter mailed before the happening of the fire, discharges the defendants from any liability upon any contract of insurance as declared upon.</p> <p>5. As it appears by the testimony given by the plaintiff, that the plaintiff made application to Minor for insurance upon the 13th October 1856; that said application was communicated to the company upon October 29th 1856; that the company rejected the application upon October 30th 1856, and so advised Minor, who, upon November 1st 1856, so informed the plaintiff, and before the fire, enclosed his check to plaintiff for the amount of premium, which cheek plaintiff still retains; the plaintiff cannot, although the check was not received by him until after the fire, recover in the present suit.</p> <p>6. The plaintiff cannot recover upon the policy in the form declared on.</p> <p>In answer to the points, the court below instructed the jury as follows:—</p> <p>To the first point — “ I do not know of any evidence of Minor’s authority, except what is contained in the writings in evidence; I do not know that Minor’s testimony contains any different evidence, and I therefore affirm the point in this sense.”</p> <p>To the second — “This proposition is correct, with this quali-. fication, that if Minor had authority to receive premiums, there is evidence from which, in connexion with the other evidence in the cause, you may find the defendants are bound; I reserve the point. The other four points I decline answering affirmatively.” The jury found a verdict for the plaintiff for $2878.67, subject to the opinion of the court upon the point reserved. And the court below subsequently gave judgment for the plaintiff, as well upon the demurrer, as upon the reserved point; in respect to which the following opinion was delivered by Hare, J:—</p> <p>“It is thoroughly well settled, that those who deal with an agent are limited by the circle of his authority, and cannot rely on the statements of the agent, or upon their own failure to ascertain the nature and extent of his powers, as a reason for charging the principal, or carrying his liability further than the authority of the agent. But it is not less true or well established, that the authority of an agent will be measured not only by his written or oral instructions, but by the acts and declarations of the principal, and consequently, by the acts and declarations of the agent, when known to and tacitly or expressly adopted by the principal. An agent entrusted with the possession of personal property, and with the powers necessary for its safe keeping, acquires no additional power by alleging that he is also armed with a power to sell; and those who buy on the faith of such an allegation, must submit to the loss if it turns out to be unfounded. But if the principal ratify one such sale, by receiving the purchase money, or in any other way, without communicating and protesting against the excess of authority, and still more, if he approve and adopt other sales of the same nature, he will lose the right to allege that the agent has not the authority, which he claims, and will be as much bound by his acts as if they were duly authorized. The policy of insurance, in the case now before us, was made on the 15th of October 1847, for the term of one year from the period of its execution, ‘ and also for the full end and term of any further time or times for which a premium of insurance shall be paid and endorsed on the policy, or otherwise acknowledged in writing, by the secretary or other authorized officer of the corporation for the time being.’ Endorsed on the policy, or given in the form of separate memoranda, are a series of receipts reaching as far back as October 14th 1848, and coming down regularly, through each succeeding year, to the 15th of October 1856, all acknowledging the payment of premiums in renewal of the insurance, and all signed by J. Minor, as agent for the company. The loss happened shortly after the last of these renewals, and the only question is, whether Minor was an authorized officer of the company, within the terms of the policy, and entitled to bind them by receiving the premium, for the purpose of extending the insurance for another year.</p> <p>“ The question thus propounded has a double aspect, and depends not only on the authority which the company actually gave, but on that which the plaintiff was justified in believing them to have given. The evidence on the former point, consists in the answers of Minor to the interrogations propounded by the defendants’ counsel, and in the written documents annexed to those answers, and containing the instructions under which he acted. The answers throw but little light on the point in question, and the instructions are at the best ambiguous. The third instruction is the only one which speaks of renewals, and all that it says is, that all insurances whether new or renewed, and also all changes, or endorsements on policies, shall be reported daily. Hence an argument that all renewals were to be reported to the defendants for approval, and were not to be binding unless approved. But the document itself contains nothing about approval or disapproval ; it simply requires the agent to acquaint his principals with the acts done in the course of the agency, one of the first duties of an agent, and certainly not the less incumbent upon him, when his acts are binding on the principal, than when they are voidable or merely void. From the duty of reporting renewals, no just inference can therefore be drawn against the authority of the agent to renew. On the contrary, it might be asked, if he could not renew, what occasion or necessity could arise for reporting renewals. Ambiguous language should always be construed most strongly against the party who uses it, especially when it has been the means of leading others into error ; and an insurance company, which introduces a provision into the policy, that the insurance may be renewed by its duly authorized agents, and then gives its agent a letter of instructions requiring him to report all renewals, has little right to complain, if the agent and those who deal with him infer, that he has power to do that which he is authorized and required to report daily, if and when done. Where the language of a power is ambiguous, it should receive that interpretation which will sustain the acts of those who exercise it, although a critical consideration might show reasons for preferring a different interpretation: Very v. Levy, 13 How. 345, 359.</p> <p>“ But whatever doubt might exist (and I do not deny that there might be some room for doubt, if the case rested solely on the written authority given to the agent), is dispelled by turning to the acts of the agent under the authority, and the ratification which those acts have received from the conduct of the principal. When the policy was about to expire, towards the close of the first year of its existence, the plaintiff called on Minor, then, as now, acting as the agent of the defendants, and paid him the premium for renewing the policy for the ensuing year, and Minor not only accepted the premium, but endorsed it on the policy, writing -his name, at the same time, under a printed acknowledgment that the policy had been renewed. A similar payment was made, and a similar acknowledgment given in each succeeding year, until the year 1856, when the renewal took place which gave rise to the present controversy. That these acts of the agent were binding if done under a previous express or implied authority, or sustained by a subsequent ratification, is beyond doubt or question; and we think there is abundant evidence both of authority and ratification implied unequivocally, and therefore not. less conclusive than if expressly given.</p> <p>“ A principal is bound to assent to, or dissent from, the acts of his agent, within a reasonable time after they have been communicated to him by the agent; if he replies without expressing surprise or disapprobation, he may fairly be presumed to have authorized what has been done; if he lies by without replying, his assent may be presumed; if he accept or enjoy the benefit of the act, he will be precluded from repudiating it subsequently; if he sanction acts of a particular kind or nature, he cannot afterwards disaffirm other acts of the same kind: The Railroad v. Cowell, 4 Casey 329. Will it be said, that the defendants remained in ignorance of the several renewals of this policy, from the time of the first renewal, on the 10th of October 1849, down to that of the last, on the 30th October 1856 ? They could not have been ignorant, unless Minor committed a breach of trust by withholding the premiums and appropriating them to his own purposes ; and although there is no direct evidence that he paid them over during the first four or five years, yet he is proved to have paid them in 1855 and 1856, and a letter written by their secretary, October 30th 1856, shows that the company were fully aware that the policy had remained in force down to that period, and only objected to its further continuance. As it had not on any occasion been renewed by them, as they had not done any single act in the interval to give it fresh life and vigor, they must necessarily have known that it was renewed by their agent; and as they have given no evidence of his keeping back or misappropriating the consideration of the renewals, the fair inference is, that it was paid over when and as received, in the due course of business.</p> <p>“ The evidence is therefore overwhelming, that the company authorized, knew of, and ratified the renewals of the policy by Minor, and the defendants seek to escape from the only conclusion to be drawn from the evidence, by alleging, first, that although Minor had authority to effect renewals, those renewals were to be merely conditional, and to depend for their validity on the subsequent approval of the company, and next, that whatever his authority might have been originally, it was changed or limited by the letter of February 10th 1855, in which he is requested to limit his transactions on behalf of the company to ordinary risks, and reject all other insurances, whether new or renewed. To judge correctly of the former of these allegations, we must remember that the form of renewals signed by Minor, which is set forth in the policy as originally executed by the defendants, and which may therefore be presumed to have been approved by them, contains nothing conditional, and is, on the contrary, so worded as to import an absolute and final agreement. The policy does not say, that the insurance may be conditionally renewed by any authorized agent, subject to the approval or disapproval of the company, and. to continue in force until they signify their disapprobation. It says, that the insurance shall endure ‘ for the full end and term of any future time or times for which a premium shall be paid and endorsed on the policy, or otherwise acknowledged in writing, by the secretary or other authorized officer of the corporation.’</p> <p>“ There was nothing, therefore, in the policy to imply that a renewal, made by the payment of a premium endorsed on the policy, or acknowledged in writing by a duly authorized officer, was to be a conditional renewal; and the receipt given October 15th 1856, by Minor, makes it plain, that both he and the plaintiff understood the renewal to be absolute. 'The question, therefore, is simply whether a principal, who has said that he will be bound absolutely, if certain payments are made to any one who is duly authorized to receive them, can with propriety enjoy the benefit of a series of such payments, made to one assuming to act as his agent, and escape from liability when it suits his purpose, on the ground that if the agent was authorized at all, his authority was limited, and did not extend to an absolute contract. Notice is, for most purposes, equivalent to knowledge, and whatever puts a man on inquiry operates as notice. A principal, who receives the consideration of a contract, made by one who assumes to act as Ms agent, ought to inquire into the nature of the contract ; if he fails to do so, he must submit to the consequences, and will not be allowed to treat that as conditional, which is really absolute. Moreover, the form of renewal, as set forth in the policy as originally executed by the defendants, is such as would lead the insured to suppose, that if the insurance were renewed at all, it would be renewed absolutely, and made it the duty of the insurers to inquire whether the insured was not acting on the expectations thus created, and whether he knew of the limited instructions given to Minor, if indeed, any such limitation existed. The general rule, that a principal will be bound, not only by the authority which he actually gives, but by that which he leads others to believe he has given, is too well settled to be questioned as a general principle; and was held in Perkins ¶. The Washington Insurance Co., 4 Cowen 660, to render the insurers liable, when they might otherwise have escaped from liability.</p> <p>“ It would seem equally plain, that the letter of February 10th 1855, was not such a revocation or restriction of the powers previously given to Minor, as would render the renewal of October 14th 1856, void or voidable. It instructs him to confine future renewals to ordinary risks, but it does not preclude the exercise of his judgment, nor deny Mm the power of determining what risks were ordinary and what extraordinary; no doubt, because some discretion was necessary for the effectual discharge of his functions, as an agent at a distance from his principals. Nor is there any sufficient evidence, that the risk covered by this policy, was so far extraordinary as to fall within the restriction ; for although tanneries are enumerated at the close of the policy among specific risks, yet the policy itself informs us that some only of those risks involved extra hazard, while the original insurance and all the subsequent renewals, were effected at ordinary rates of premium. Nor, if the letter in question had been a revocation of the authority previously held by Minor, would it be binding on the plaintiff, in the absence of evidence that it was made known to him, or that he had in some way notice of its contents. An agent who has been endowed with a general authority, and allowed to hold himself out to third persons as expressly or impliedly authorized to represent his principal, cannot be stripped of his power subsequently by a secret act of revocation, unknown to those who continue to deal with him, in the belief that everything remains as it was previously: Morgan v. Stell, 5 Binn. 305; Beard v. Kirk, 11 N. Hampshire 398. To hold that persons who relied with reason upon the acquiescence of the defendants, during a long series of years, in the acts of Minor, could be prejudiced by a change in his instructions, not communicated to them, and which they had no means of knowing, would be contrary to one of the plainest principles of justice, which prescribes that those •who give others a right to believe that a particular state of things exists, shall be equally bound whether it exists or not. On the whole, we are of opinion that no sufficient reason has been shown for a new trial, and that judgment should be entered for the plaintiff on the point reserved.”</p> <p>To this opinion the defendants excepted, as they had done to the ruling on the trial; and having removed the cause to this court, they here assigned for error: 1. The refusal to charge as requested in the defendants’ points. 2. The judgment on the reserved point. 8. The entry of judgment against them on the demurrer.</p>

This was an ejectment by John Garrison against Mary Monaghan, for a dwelling-house and lot of ground, at the north-east corner of Columbia and Adams streets, in the city of Philadelphia, containing in front 50 feet, and in depth 60 feet. On the 30th May 1851, Oliver Parry and Nathaniel Randolph conveyed the premises in controversy to John Zimmerman, in fee, reserving a yearly ground-rent of $75.

<p>A paid check, drawn by the defendant’s wife, is evidence of payment, in the absence of proof of any other transaction to which it could be applied.</p> <p>But the plaintiff’s receipt for money paid by a third person, without other explanation, is not evidence of payment by the defendant.</p>

This was' an appeal by Edmund M. Ivens from the decree of the court below, distributing the proceeds of a sheriff’s sale of his real estate. The facts of the case are fully set forth in the opinion of the court.

Error, to the District Court of Philadelphia. This was an action of assumpsit by John E. Fox against the Columbia Coal and Iron Company, on eighteen coupons, annexed to bonds issued by the defendants. These coupons were in the following form, to wit:— “ The Columbia Coal and Iron Cómpany will pay the bearer thirty dollars, at their office in the City of Philadelphia, being the half-yearly interest, due July 1st 1857, on bond No. 1, $30.

This was an attachment execution issued by a justice of the peace, on a judgment obtained by William Costello against Thomas Kennedy, and served on The Pennsylvania Coal Company as garnishees. The garnishees appealed from the judgment of the justice. On the 15th October 1855, the plaintiff obtained a judgment against the defendant for $50.22, and issued this attachment, by virtue of which a debt of $14.45 owing by the garnishees to the defendant, was attached in their hands.

This was an ejectment by Sarah Ogden against William H. H. Brown, Byron Brown, Barton Brown, James C. Ridgway, Joseph.i L. Johnson, D. S. Miller, and James Roof, for a tract of 300* acres, in Franklin township, Bradford county. The plaintiff claimed title to an undivided eighth part of the land in controversy, by descent from her grandmother, Amy Cranmer, formerly Amy Wilcox, who died in 1834, at the advanced age of 104 to 108 years.

<p>Error to the Common Pleas of Lehigh county.</p> <p>This was an action of trover by John Stahler and Henry Dillinger, administrators of Daniel Stahler, deceased, against John Backenstoss, for a quantity of wheat, rye, and straw.</p> <p>On' the 1st December 1854, the plaintiffs, as administrators of Daniel Stahler, deceased, sold the real estate of their intestate, under proceedings in partition in the Orphans’ Oourt, and the defendant became the purchaser, at the price of $10,566.87. One of the conditions of sale was as follows:—</p> <p>“ All straw from the winter grain now in the ground, shall remain on the premises (except two ton), and the vendors also reserve the right to take firewood for the two families now living on the premises, until said 2d day of April, and five cords besides, to be taken away on or before the time of possession given. The above-mentioned straw shall be long straw, thrashed with flails.”</p> <p>At the time of the sale, the plaintiffs gave a verbal notice that the whole of the crop of grain in the ground, was reserved, except every fourth bushel, which the purchaser was to take for harvesting and thrashing, in case he should choose to cut the grain.</p> <p>At the time of completing the purchase, Backenstoss, desiring to obtain a better title than, in the opinion of his counsel, he would have received under the Orphans’ Court sale, requested that the widow and heirs of Daniel Stahler should join in a deed for the property, on the same terms and conditions as he had purchased from the administrators. No objection was made, and a deed was accordingly executed, in which was contained no reservation of the growing crop. This deed was dated the 7th April 1855.</p> <p>Backenstoss entered into possession and harvested the growing crop; for the value of which the plaintiffs brought this action.</p> <p>On the trial of the cause, the plaintiffs offered to prove “ that after the written conditions of sale were read, the crier publicly announced that the grain sown by John Stahler and Henry Dillinger, on the land of Daniel Stahler, after his death, was not sold, but was reserved; that the reservation was fully understood by John Backenstoss, the purchaser, and was inadvertently omitted to be reduced to writing; to be followed up by proof of declarations of the defendant that he bought, in the full knowledge of this reservation, and that he had not bought the grain.”</p> <p>The defendants objected to the admission of this evidence, but the court overruled the objection, admitted the evidence, and sealed a bill of exceptions.</p> <p>The defendants offered to prove that one of the plaintiffs employed a puffer to bid at the sale, and that he did bid for the property; to be followed by the deed of 7th April 1855. The court ruled out this evidence, and the- defendants excepted.</p> <p>The defendant’s counsel presented the following points in writing, upon which they requested the court to charge the jury:—</p> <p>1. The alleged reservation having been made, if at all, at a judicial sale, is inoperative, and has no effect, especially if not reported to and sanctioned by the Orphans’ Court.</p> <p>To this point the court answered — “ This point is answered in the negative. If the defendant agreed that the reservation of the grain should be made, he is bound by it, although it was made at a judicial sale.”</p> <p>2. If a new contract was made at the execution of the deed of April 7th 1855, the former alleged reservation is thereby annulled, and confers no right to recover.</p> <p>Answer, — “ The second point is answered in the affirmative. The evidence on this point is in the testimony of Mr. King and Esquire Lawall. The difficulty, they say, was about the dower. That the same price was to be paid for the land. They say nothing as to anything being said about the reservation.”</p> <p>8. Unless the alleged reservation was omitted by fraud or mistake, from the written conditions of sale, the report of sale, and the deed of 7th April 1855, it confers no right of recovery on the plaintiffs.</p> <p>Answer. — “I answer this point in the negative. It is not necessary that the defendant should have had a fraudulent intent at the time of signing the conditions. If with full knowledge of and assent to the reservation, he afterwards took advantage of the omission, by holding the plaintiffs to the written conditions, it is such a fraud as will let in evidence of the parol condition omitted.”</p> <p>4. If the defendant had the title and exclusive possession of the land, at the time of the severance from the freehold, trover will not lie by the plaintiffs for the grain or straw severed.</p> <p>Answered in the negative.</p> <p>5. The damages, if any, due to Mrs. Henry Dillinger by reason of her interest in the grain or straw, cannot be recovered by the husband, without joining her in the action.</p> <p>Answer. — “ This point is answered in the negative — the husbamd being entitled, as tenant by the courtesy, to the profits of his wife’s lands.”</p> <p>6. The cause of action having arisen out of an alleged contract, no recovery can be had, unless all the parties having interest in the property, are joined as plaintiffs.</p> <p>Answer. — “ The proper parties are made plaintiffs. The case arises not on contract, but on what was excepted out of the contract.”</p> <p>7. That if the jury find for the plaintiffs, or either of them, they must deduct every fourth bushel, according to the terms of the alleged reservation.</p> <p>Answer. — “ The defendant would have been entitled to this if he had complied with the contract; but he cannot, at the same time, repudiate and claim a benefit under the contract. The measure of damages in trover, is the value of property, at the time of the conversion, with interest.”</p> <p>8. That the deed of 7th April 1855, is on its face conclusive against the reservation claimed by the plaintiff; and there being no evidence of any omission by fraud or mistake, plaintiffs cannot recover.</p> <p>Answer. — “ I give the same answer to this point, that I have given to the third.”</p> <p>To these answers the defendant excepted; and a verdict and judgment having been rendered for the plaintiffs, for $1033.96, he removed the cause to this court, and here assigned, inter alia, for error: !• The admission of the evidence of the parol reservation at. the sale. 2. The rejection of evidence that plaintiffs employed a puffer to enhance the price of the property. 3. The answers of the court below to the defendant’s points.</p>

<p>If an executor, instead of paying over to the trustee of his testator’s minor children, their portion of the estate, himself undertake their support and education, having assumed the duties of trustee, he will be held strictly to the will of the testator in that respect.</p> <p>An executor is liable for interest on moneys remaining uninvested in his hands up to the time of the decree.</p> <p>An executor is not entitled to commissions on debts charged in the inventory but not collected; but he is to be allowed commissions on the value of household furniture, delivered to the widow and legatees under the will.</p>

This was an ejectment by John C. Doyle and Bridget his wife, against John Mullady, for a house and lot of ground, No. 140 North Water street, in the city of Philadelphia. Michael Murray, the father of Mrs. Doyle, by his will, proved on the 19th October 1830, devised as follows :— “ First.

<p>Error, to the Common Pleas of Warren county.</p> <p>This was an action of assumpsit by William W. Kidder against Nelson Kidder and Orris Hall, trading as N. Kidder & Co., on a promissory note for $4§4, dated 3d June 1856, signed N. Kidder & Co., in the handwriting of Nelson Kidder.</p> <p>On the trial, the defendants gave in evidence the following release executed by the plaintiff:—</p> <p>William W. Kidder v. Nelson Kidder and Orris Hall. Common Pleas of Warren County, Pa.</p> <p>I hereby release Nelson Kidder from all individual liability for the claim upon which the above suit is based; so that if I fail in recovering judgment in the above suit, said Nelson Kidder shall be, and is hereby, released from all individual liability whatever in the premises.</p> <p>W. W. Kidder.</p> <p>Warren, Pa., Jan. 9th 1857.</p> <p>The court below (Galbraith, P. J.) instructed the jury that this was a release of the cause of action, and that the plaintiff could not recover.</p> <p>To this instruction the plaintiff excepted; and a verdict and judgment having been given for the defendants, he removed the cause to this court, and here assigned the same for error.</p>

This was an ejectment by Lydia Lorain against Jacob Hall, for a tract of 100 acres, in Bensalem township, Bucks county. Hall was the tenant in possession under Lloyd Wharton Bickley, Abraham W. Bickley, Robert W. Bickley, and Howell W. Bickley, devisees of Lloyd Wharton Bickley, deceased, who were admitted to defend as landlords.

Appeal in Equity from the Court of Nisi Prius. This was a bill in equity by Lloyd W. Biekley, administrator with the will annexed of Lloyd W. Biekley, deceased, against Thomas A. Biddle, Henry J. Biddle, and Alexander Biddle, for the specific performance of a contract for the purchase of real estate.

<p>The Supreme Court has no original jurisdiction in equity of a bill for specific performance.</p> <p>An equity suit instituted at Philadelphia, must pass through the Court of Nisi Prius, before it can properly come before the court in bane.</p> <p>A bill in equity will not be sustained to enforce the specific performance of a contract for the purchase of the bonds of a corporation.</p> <p>But if the court in which the suit is brought have jurisdiction of the cause of action, both at law and equity, it may proceed to give relief, unless the bill be demurred to, on the ground that the proper remedy is at law.</p> <p>The judiciary have no authority to enforce a pledge, by the legislature, of the public faith, and of the public works and their income, to secure the payment of money borrowed to construct the works.</p> <p>No court has authority to set aside a public law, on the ground that it was passed by the legislature in fraud of the rights of the people.</p> <p>The Act 21st April 1858, authorizing the sale of the state canals, is constitutional; and the judiciax-y have no power to declare the sale void for inadequacy of price, or for any undue favour to local interests supposed to have influenced it.</p>

In Equity. This was a bill in equity, by The Williamsport and Elmira Railroad Company and William D. Lewis, a holder of one of the bonds secured by the first mortgage of the said company, against The Commonwealth of Pennsylvania, the Sunbury and Erie Railroad Company, the West Branch and Susquehanna Division Canal Company, and Charles W. Rockwell, the trustee named in the said mortgage.

This was an appeal by Gideon L. Fisher from the decree of the court below, distributing the proceeds of a sheriff’s sale of the real estate of Frederick A. Aechternacht. On the 20th April 1885, William Hemble conveyed to Frederick A. Aechternacht, in fee, a lot of ground, at the corner of Tenth and Morgan streets, in the city of Philadelphia, reserving an annual ground-rent of $120.

On. the 22d February 1856, the following petition, for the formation of an independent school district, signed by twenty-three citizens of Sewickley township, was presented to the court below, under the Act 8th May 1855 (Brightly’s Purd. 1123, pl. 5):— “The petition of divers inhabitants of Sewickley township, now composing school No. 8, respectfully showeth: That your petitioners believe the cause of education would be greatly advanced, by the honourable court forming them…

This was an action on the case by Andrew J. Baker and Alexander McHenry against A. Kirk Lewis, for negligently and unreasonably obstructing the navigable channel of the Ohio river, whereby a boat of the plaintiffs was injured and sunk, and with its cargo became a total loss.

This was a judgment, in the penal sum of $16,000, entered on a bond and warrant of attorney in favour of M. Eldred, Jr., against Dr. Robert Hazlett, on the 26th June 1852.

<p>Error to the District Court of Westmoreland county.</p> <p>This was an action on the case by Nicholas Zebe and Elizabeth his wife, against The Pennsylvania Railroad Company, to recover compensation for the death of their son Peter Zebe, who was killed on the defendant’s railroad.</p> <p>In September 1856, Nicholas Zebe and his son Peter, aged twelve years, took passage in the cars of the Pennsylvania Railroad Company, from Irwin’s Station, in Westmoreland county, to Brinton’s Station, in Allegheny county. On arriving at the latter point, the plaintiff and his son, instead of alighting on the platform provided by the company for that purpose, left the cars on the opposite side, and stepped upon the other track, where the boy was struck by the locomotive of a freight train coming east, and instantly killed. And for this the present action was brought.</p> <p>The court below (Bueeinston, P. J.) delivered the following charge to the jury:—</p> <p>“ This is a special action on the case to recover damages alleged to be sustained by the plaintiffs from the loss of their child, a boy about twelve or thirteen years of age. The allegation is, that the boy was a passenger on board of the accommodation train from Irwin’s Station to Brinton’s Station, on the defendant’s road; and that on leaving the train at the latter place, he met with his death by means of the carelessness and negligence of the agents of the company. By the common law, this action could not have been sustained, as the parent had no such property in a child as would enable him to maintain an action for his death; but by an Act of Assembly, passed on the 15th of April 1851, ‘ whenever death shall be occasioned by unlawful violence or negligence,’ his representatives ‘ may maintain an action for, and recover damages for the death thus occasioned,’ and that right by a subsequent act is extended to the parents.</p> <p>“ The right of action, therefore, is when death has been occasioned by ‘.unlawful violence or negligence.’ This act would seem to divide the right of recovery into two distinct causes of action— the first, ‘unlawful violence,’ and the second, ‘negligence.’ The object of the act would appear to be, not to alter or diminish or increase the liability of a person charged with negligence, but simply to give a cause of action, where death ensued, which did not exist before.</p> <p>“We are, therefore, to recur to the common law to ascertain the liability of the defendants in this case. By that rule of action, carriers of passengers on railroads are bound to the utmost care and skill — all their machinery must be in good order, and their agents skilful and diligent. If an accident occurs while a passenger is on the train, the law presumes that it was caused by the carelessness of the employees on the road. But this rule of presumption only applies where the passenger is on the train, and not to one that occurs after he has left the cars. But although the presumption of the law is such, yet it is competent to show that, even in such a case, the road or its agents were in no fault.</p> <p>“ It is further a settled rule of law, that where an accident has occurred by reason of the carelessness, rashness, or imprudence of the plaintiff himself, he has only to blame his own conduct, and he cannot recover.</p> <p>“ It is equally well settled, that where the accident is the result of the imprudence and negligence of the plaintiff and the defendant both, where the carelessness of' the party injured contributed to the injury, although the other party may also have been in fault, in such case there could be no recovery; where parties are in equal fault, there is no cause of action.</p> <p>“ In the present case, the facts proved would seem to show, that in the month of August or September 1856, the plaintiff and his son took passage in the train, paid their passage and entitled themselves to all the rights of passengers, to be let off at Brinton’s Station. They were carried safely to the point agreed upon. The railroad, at the latter place, consisted of two tracks. The accommodation train running west, on which the plaintiff was a passenger, ran upon the north track, leaving the south track for the freight trains coming east. The schedule, if the jury believe the evidence, required the accommodation train to be at Brinton’s, at ten minutes past eight o’clock, and also that the freight train should be there at the same time. To accommodate passengers getting off at Brinton’s, there was a platform on the north side, for those passengers leaving the train going west, and also a platform on the south side of the south track, for those getting off the trains coming east. The accommodation train arrived there at the schedule time — and here there is some discrepancy in the evidence ; some of the witnesses say the plaintiffs were inside of the cars till they stopped, and that the train was standing when they left; others say they were on the platform of the front car at the time the train arrived, and had been there for some time before the train came to the station; and some witnesses prove that plaintiffs got off before the train stopped. Was there any carelessness, at this point of time, in the accommodation train ? If 'seems to the court there is no evidence of that. Were the necessary platform and accommodations provided there for the safety of passengers ? If so, then the company had done all that could be required of them, so far as the passenger train was concerned. What then was it the duty of the plaintiffs to do ? Could they, with safety, leave the train before it stopped ? At what time, did they leave the train ? This is a question purely for the jury. If they got off before it stopped, it cannot be doubted but their safety was endangered, and that they were rash and careless. If they did so get off, did that contribute to the accident ? If so, and that act was careless and rash, they cannot recover. It was their duty to wait till the train stopped — and their disregard of that, was an act of carelessness. If, however, the jury believe they did not leave the train before stoppage, then, of course, in this, there was no negligence or carelessness.</p> <p>“ What next was it their duty to do ? Had they an equal right to get off either on the one side or the other ? or was it their duty, in view of all the circumstances, to get off on the platform ? This is a question for the jury. If it was their duty to get off on the station platform, and they neglected or disregarded that duty, but got off on the side next to the other track, which was, no doubt, the cause of the injury — then certainly their own careless act was the cause of the injury, and they cannot recover. If, however, the jury believe they had a right to get off on that side, and they violated no duty in doing so, then no carelessness could be attributed to them.</p> <p>“ But, suppose the plaintiffs did everything that prudent passengers are expected to do. In what is it alleged that the defendants were negligent ? If the evidence is believed, the accommodation train was in no fault. What, then, caused the injury ? It was not that train, but another freight train coming east. Was there negligence in the agents of the company on that train ? If so, in what did it consist ? It was running on schedule time, at a slow rate, was whistling, and ringing the bell, as it approached. There is no sufficient evidence to justify a conclusion of negligence in that train. In what, then, did the negligence consist ? It is alleged that the trains ought not to meet at a station; and that the very fact of their meeting there is carelessness. We do not think so, for the reasons stated in our answer to the first point of plaintiff. It seems to the court that the evidence to charge the defendants with negligence, in this case, is very slight; still, the facts connected with the stoppage of the train, being contradictory, and the conclusion of negligence, under all the circumstances, being one of fact, is left to the jury.</p> <p>“If the jury find for the plaintiff, the question of damages is one for the jury entirely.”</p> <p>The defendant’s counsel presented the following points, upon which he requested the learned judge to charge the jury:—</p> <p>1. That the deceased, having been killed on the track of the railroad, where he had voluntarily placed himself, this action cannot be maintained, unless there was such gross and wanton negligence, as would be equivalent to dolus malus, and voluntary injury.</p> <p>Answer. — “ The facts in this case show that the plaintiffs were passengers in the train, and, as such, it was not only the duty of the company to carry them safely, but to enable them to leave the cars with safety to their persons. If they left the train in the usual way, and were properly regardful of their own safety, and did everything that their own duty required of them, and in thus leaving the train, and before they found a place of safety, they were injured by the negligence of the company, then, we think, that passengers in that condition, although separated from the train, would have a right to recover for such negligence. This is not the case of a stranger unconnected with the train, voluntarily placing himself on the track.”</p> <p>2. That when the deceased left the car, he ceased to be a passenger, and the liability of the defendants, as common carriers, ended; and having been killed after this, this action cannot be sustained, unless the death was the result of gross negligence and wanton injury.</p> <p>Answer. — “ This point is answered in our answer to the first point of defendant as above.”</p> <p>3. That the company having provided a safe mode of egress, and proper landing platform and station, and the deceased having voluntarily chosen to go from the car on another side, and where he was on a track of the road parallel to that on which was the, car in which he had been a passenger; and having by reason of this, his voluntary conduct, met his death, this action cannot be sustained.</p> <p>Answer. — “ The truth of the facts stated in this point js for the jury. We have substantially answered this point in our general charge. If the facts, which the jury believe, prove that the plaintiffs disregarded their own safety and duty, by getting off when they ought not to have left, and by this means caused the accident, or contributed to it, then they cannot recover. But, if they had a right, in the estimation of the jury, to leave on either side, and they are satisfied from the evidence, that it was caused by the carelessness of the company, or their agents, the plaintiffs may recover.”</p> <p>4. That as a common carrier, the defendant was bound only to provide for the safe transportation of passengers, and their safe egress from the line of the road; and that the defendant, in this instance, having done so, and the person killed did not avail himself of it, but left the train at an improper time, and in an improper way, was not under the protection of the company any longer than he was on the train, and the accident occurring after-wards, by his own negligence, the plaintiffs cannot recover.</p> <p>Answer. — “ This point is answered in our general charge, and in our answer to the foregoing points. The truth of the facts is for the jury.”</p> <p>To this charge the defendant excepted; and a verdict and judgment having been rendered for the plaintiffs for $1500, the defendant removed the cause to this court, and here, inter alia, assigned the same for error.</p>

This was an ejectment by Paul Brinker, executor of Anthony Ament, deceased, against Solomon Wolf, for a tract of forty acres of land, in Franklin township. On the 26th June 1786, a warrant was granted to Euphan Moorhead, for 300 acres, including an improvement; on which a survey was made on the 24th May 1793, including the premises in dispute. And on the 17th June 1797, a patent was issued to him for the land within his survey.

Error, to tbe Oyer and Terminer of Erie county. Held: not being one of the judges composing said court, nor was the judge who presided therein legally authorized to do so. 2. The number of legal jurors required by law, to wit, forty-eight, were not drawn -and summoned on the panel for the February term of said court.

<p>Appeal from the Common Pleas of Lancaster county.</p> <p>This was an appeal by Joseph Schoeh from the decree of the court below on his accounts as trustee of Ann S. Schoch.</p> <p>John B. Haldeman, by his will, proved the 14th December 1836, devised to his daughter Ann Herr, then the wife of Abraham S. Herr, the “ Islands of Promise,” in the river Susquehanna, in the following terms, to wit:—</p> <p>“ I give and bequeath to my daughter, Ann Herr, all my aforesaid Islands of Promise, in the river Susquehanna, nearly opposite Charlestown, in the county aforesaid, in the manner following, that is to say: I hereby authorize and appoint my nephew, Samuel S. Haldeman, or his successor, as lawful trustee over any and all the different bequests in this will to my said daughter Ann Herr. He, the said trustee, to pay my said daughter Ann, the interest that may accrue annually, over to her, or her heirs; also the said trustee to rent the aforesaid Islands of Promise, and annually pay over the net proceeds of the same to my daughter Ann Herr, or her heirs. This trust to continue the natural life of my said daughter Ann Herr, and said Samuel S. Haldeman, or his successor, shall receive for his services, as trustee, fifty dollars annually, out of said income, after all necessary expenses being paid.”</p> <p>Abraham S. Herr died on the 21st May 1839, and on the 12th May 1846 his widow intermarried with Joseph Schoch, the appellant. Christian B. Herr was appointed trustee of Ann Herr, and acted as such, until the 19th June 1849, when, on her application, he was discharged, and her second husband, Joseph Schoch, was appointed her trustee; and received from the former trustee the sum of $4869.55f, the balance of the trust-money in his hands.</p> <p>By Act of 1st May 1852, § 23 (Pamph. L. 499), Joseph Schoch, the trustee of Ann Schoch, was authorized to sell the “ Islands of Promise,” and out of the proceeds to discharge the debts of the said Ann Schoch, and place the remaining balance at interest, for her use, in the manner directed by the last will and testament of the said John B. Haldeman, deceased.</p> <p>The appellant accordingly sold these islands to Dr. Bitner for $3000, payable in three instalments, without interest, on the 1st April 1853,1854, and 1855. He also received the income thereof for four years.</p> <p>On the 24th September 1852, the appellant filed his first account, as trustee, in which he charged himself with the amount of $4869.55f, received from the former trustee, with interest thereon, and also with the proceeds of the sale of the “ Isles of Promise;” and claimed a credit for $1022.59, for interest paid to the cestui que trust; he also claimed credits for payments of debts due by Mrs. Schoch, made in pursuance of the provisions of the Act 1st May 1852. This account was confirmed on the 15th November 1852.</p> <p>On the 27th May 1857, Ann S. Schoch obtained a divorce from the appellant, on the ground of cruel treatment; and the following agreement was signed by the counsel of the respective parties:—</p> <p>“ It is hereby agreed by the undersigned that, in the event of a decree of divorce in this case, that said libellant shall not ask for alimony from the said repondent, and that Joseph Schoch, the respondent, shall pay all costs in this application for divorce, that he will file his account as trustee of the said libellant, pay over all money in his hands belonging to his wife, deliver up all property, both real and personal, held by him in trust or under his control, belonging to libellant, give her all the property which she had in her own right at the time of their marriage, that the said account shall be filed at April Term 1857, and immediately after the filing of said account, that he will ask to be discharged from his trusteeship — reserving the right on the part of said Ann Schoch, to file exceptions to the said account, if not deemed correct.</p> <p>“April 23, 1857.”</p> <p>On the 2d May 1857, the appellant filed his second and final account as trustee, in which he charged himself with the balance in his hands at the time of filing the former account, with interest thereon; and claimed a credit for $1054.08, for interest paid to the cestui que trust, on the 1st April 1856.</p> <p>Before the auditor, appointed to settle and adjust the accounts of the trustee, he produced the following vouchers for the credits claimed in his accounts:—</p> <p>“ I have this day settled with Joseph Schoch, my trustee, duly appointed by the Court of Common Pleas of Lancaster county, for the income and proceeds of the Islands of Promise, since June 1, 1849, to April 1,1852, and declare that there is now nothing due me from said Joseph Schoch on account thereof. And I do further agree and hereby certify, that there is due by me, as my indebtedness, which I desire said Joseph Schoch to settle, pursuant to the Act of the General Assembly, authorizing him to sell the Islands of Promise, and out of the proceeds of sale to pay my said indebtedness, the following sums:—</p> <p>1847— To materials and building house, - - $311.00</p> <p>“ “ digging and walling well', - - 14.00</p> <p>1848— To materials and building barn on Big Island, 330.00</p> <p>1849— “ “ “ “ M. “ 210.00</p> <p>“ “ costs in Lancaster in suit with Malson, - 40.00</p> <p>“ “ wharfing three landings, - - 26.00</p> <p>1850— 51 — To new fence on Big Island, - - 257.00</p> <p>1852 — Wheat crop sold to Bitner, thirty bushels, and work due at seeding, - 30.00</p> <p>“ Taxes for five years, - 65.00</p> <p>“ Fence on Middle Island, - 25.00</p> <p>Amount due David Herr, bond, $500, 6 per cent., - 500.00</p> <p>Interest due from April 1, 1852, to Dee. 19, 1852, 21.58</p> <p>“ In witness of which I have set my hand and seal, September 3, 1852. “ Ann Schoch,” [seal.]</p> <p>“Received and settled with Joseph Schoch, my trustee, appointed by the Court of Common Pleas of Lancaster county, for interest due me on $4869.55f, from 19th June 1849, to December 19, 1852, being three years and six months, on the balance in his hands, as received from C. B. Herr, former trustee.</p> <p>“Ann Schoch.”</p> <p>“ Received of Joseph Schoch all my interest in full. Received April 1, a. d. 1856. “ Ann S. Schoch.”</p> <p>The auditor disallowed the credits claimed for payments of interest to Mrs. Schoch, being of opinion that they had never, in fact, been made to her; and charged the accountant with $800 for four years’ income of the Islands of Promise, and with the costs of the audit; and reported a balance in favour of the cestui que trust of $7869.55, with interest from the 5th May 1857. The court below dismissed exceptions filed by the accountant, and confirmed the auditor’s report. From which decree this appeal was taken.</p>

<p>A recognisance of bail in error, -with a single surety, is not a supersedeas; and the court below may issue execution, notwithstanding the removal of the record.</p> <p>Henry v. Boyle, 1 Miles 38G, affirmed.</p>

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was an action on the case by The Naugatuck Wheel Company, a corporation chartered by the state of Connecticut, against Jacob Rheem, for deceit, in wilfully and fraudulently recommending to the plaintiff one David Klinefelter, as a person in good credit, whereby they were induced to sell him a spoke-machine of the value of $600. The plea was not guilty.</p> <p>On the trial of the cause, the plaintiffs offered to give in evidence their original agreement of association, the record of the certificate filed with the town clerk, and also with the secretary of state of Connecticut, and the fact of publication required by the statute of that state; in order to show that they were duly incorporated. To this offer the defendant objected, that the proceedings were not in conformity to .the statute; but the court admitted the evidence, and sealed a bill of exceptions.</p> <p>The plaintiffs then offered in evidence the following correspondence :—</p> <p>“Mount Rock, November 15, 1856.</p> <p>“ Sirs: I received yours stating that you have no acquaintance with me, and don’t know about my ability to pay for the machine in case I buy it. If I understand your first letter, I am to pay the freight and my portion of the agent’s expenses — this, of course, right down — and after having run the machine three months, to pay fifty cents on the hundred; and if the machine will do the work, I am to pay the one-half, and reduce it to thirty-five cents per hundred, for three months more, then to pay the balance. I have already been making arrangements. I had a forty-foot belt made in Baltimore, seven inches wide, to run to third floor of my mill, and other shafting, and a large lot of stuff on hand. In my immediate neighbourhood there is any amount of hickory. Eberly & Miley don’t want to see me get a machine. They calculate to get their hickory out of my neighbourhood. They told me that your agent had promised not to sell one to any one else in this section. What I have said above, I will do.</p> <p>“David Klineeelter.”</p> <p>“ P. S. — Please send the machine, so that it can be put up at the same time as the other machine, to save expenses. You will find Mr. Rheem’s reference on the other side of' this.”</p> <p>“ I am acquainted with Mr. Klinefelter, and have had, and still have considerable dealings with him, and find him industrious and honest. I have endorsed for him to the amount of $800, and would do so again, whenever he wants. I would trust him any amount — a machine, or anything else, the amount of $500 or $600. This I would, and would have no fear as to the pay. You can do as you please, as I do believe he will pay anything he contracts for. “ Yours, respectfully,</p> <p>Jacob Rheem.”</p> <p>“ Carlisle, Pa., Nov. 15, 1856.</p> <p>“Naugatuck, November 19, 1856.</p> <p>“Mr. Klinefelter: Yours of the 15th and 17th insts. are both received. From their contents, we are inclined to think you'1 are all right as to ability to pay. We have a set of machines ready to send, and we know they will suit you when you try them, but we would rather you would come and see ours operate;. it would be an advantage to you and us too. The expense of coming would not exceed $20. The fare from Philadelphia here is less than $5. By leaving your place in the morning, you can arrive here at noon on the next day; leave here in the morning, you get home the next day: so that three days’ time, or four at most, is all you lose. If we can’t make a trade with you when you see the machines work, we will pay one-half of your expenses in coming. Provided you can’t come, if you will get the principal of the Carlisle Seminary to certify that the gentleman to whom you refer is responsible (viz. Mr. Rheem), we will forward the machines forthwith. If you do come, it will be well to get such certificate. You may think we are too nice and particular in the matter, but we have had some experience in selling to strangers, and have already lost considerable in that way, and we are, therefore, getting rather more careful. All we ask, is to be satisfied we are safe. We know we have the best machine ever invented for getting out spokes, and if you see it work, you will have one. Try to come on. Let us hear from you right off. If you come, write when, and I will be at home.</p> <p>“Yours, truly,</p> <p>“Nelson Tuller, President.”</p> <p>“ As far as my acquaintance with Mr. Rheem extends, he is a responsible person. Chas. Clark.”</p> <p>“ Mr. Clark forgot to state, that I am a stockholder in the erection of his academy, to a considerable extent. The cars just off, or I would say more. J. Rheem.”</p> <p>“ Mount Rock, Cumberland Co., Pa., Sept. 10, 1856.</p> <p>“ Sirs : I received your one yesterday, and would say to you, that I wish you to send a machine at the same time you send one to Mechanicsburg. It will save some expenses. I will accept with the contract they have, as I think the proposition a fair one.</p> <p>“David Klinefelter.”</p> <p>To this offer the defendant objected, but the court below admitted the evidence, and the defendant excepted.</p> <p>The plaintiffs then proved the sale of a spoke-machine to Klinefelter, for $600; for which they took his two promissory notes, of $300 each, payable in three and six months. That the notes endorsed by Rheem for Klinefelter were given for the purchase, from James Dunlap, of one half of a steam saw-mill, which had been erected by Dunlap and Klinefelter. That to secure these endorsements, Rheem took the conveyance of the one-half of the mill to himself; and at the same time, took from Klinefelter a bond and warrant of attorney to confess judgment in the sum of $1000, with a stay of execution for three months. That on the same day, Klinefelter, and Rheem, as his surety, executed a bond to James Dunlap, in $700, conditioned that they would pay the debts of the late firm, and indemnify and save harmless the said James Dunlap, And that on the 20th May 1857, Rheem issued a fieri facias on his judgment for $1000, under which the sheriff levied on all the property of Klinefelter, including the spoke-machine, all which was purchased by the defendant.</p> <p>In the course of the trial, the court admitted evidence on the part of the defendant, tending to prove that the machine sold to Klinefelter was a violation of the Blanchard patent; but subsequently instructed the jury to disregard this evidence as irrelevant to the issue trying.</p> <p>The court below (Graham, P. J.) delivered the following charge to the jury: — “ This is an action brought by the plaintiffs against Jacob Rheem to recover damages for a fraud, which they allege was practised upon them under the following circumstances. A man named David Klinefelter was conducting the business of a steam saw-mill near Mount Rock, in this county. He had leased a lot of about an acre from the Messrs. Trego, on which he had erected his steam saw-mill; and while engaged in carrying on his business, applied to the plaintiffs to purchase from them a machine for making carriage spokes, to be used at his mill. Before the purchase was made, Klinefelter wrote to plaintiffs, requesting them to forward the machine, and in reference to his ability to pay, forwarded to them a letter from Jacob Rheem, dated 15th of November, 1856. This letter of Mr. Rheem’s is the subject of complaint, and the plaintiffs allege was a fraud practised upon them, by which they were induced to give credit to Klinefelter, who was unable to pay, and they thus lost the value of the property sold to him.</p> <p>“ The gist of this action is fraud and deceit. To sustain it, there must be fraud accompanied with damage; and where both fraud and damage to the person on whom it was practised is shown, the action of deceit may be sustained. A naked lie will not sustain a suit of this nature ; for a person may honestly make a statement upon incorrect information, which he believes to be true, although it may in fact be untrue. But if such falsehood is uttered with a knowledge of its falsity, mali animo — with an evil mind, a dishonest purpose, this is a deceit for which the party will be held responsible, so far as it may occasion damage or loss to the party to whom it is made.</p> <p>“ The letter upon which the plaintiffs allege they gave Klinefelter credit, is as follows(The court here read the letter to the jury.) “ As to the assertion that Rheem had considerable dealings with Klinefelter, and found him industrious and honest, it appears to be fully sustained by the evidence; for dealings between these parties, both before and after this transaction, are shown; and witnesses have been called to show that Klinefelter was a man of remarkable industry, and that his honesty was not suspected.</p> <p>“Mr. Rheem further states, that he had endorsed for Klinefelter to the amount of $800, and would do so again whenever he wanted, and would trust him to the amount of $500 or $600. The plaintiffs complain, that in this there was a suppression of the truth, for the purpose of obtaining the credit for Klinefelter; that at the time he endorsed Klinefelter’s paper for $800, he had a conveyance of one-half his property, and a judgment of $1000, as security for his endorsement, and that these facts were not stated in his letter. If these facts were withheld through improper motives, and to obtain a credit for an individual he did not consider worthy of such credit, this would be practising a deceit for which defendant would be responsible. On the contrary, if the fact of the security he held for his endorsement was not withheld through dishonest or impure motives, and if he honestly believed at the time he wrote to plaintiffs that Klinefelter was worthy of credit, and would have given him credit as he there states, then there is no such fraud or deceit as would subject him to damages. Did Jacob Rheem in this transaction act the part of an honest, moral man ? if he did, the law will not punish him; if he did not, but acted dishonestly and immorally, and thus practised a deceit upon plaintiffs, he is responsible to plaintiffs for the deceit thus practised.”</p> <p>The defendant’s counsel requested the court to instruct the jury as follows: — ■</p> <p>1. If the jury believe that, on the 15th of November 1856, when Jacob Rheem made the recommendation in writing of David Klinefelter to the plaintiffs, he then had endorsed the three or four notes to the amount of $800, or more, given to James Dunlap, and withheld and suppressed the fact that, to induce him to make these endorsements, he had taken a conveyance of one-half of Klinefelter’s property, and had taken a judgment from him for $1000, upon which he could issue execution within three months, this was a suppression of the truth, and amounted to a falsehood, and if it induced the plaintiffs to trust Klinefelter and they thereby lost their money — the defendant is liable to the consequences of such loss in this action.</p> <p>Answer. — “ The facts recited in this point would be a suppression of the truth, and equivalent to a falsehood. But if this suppression of the truth was inadvertently made, and not with intention to deceive the plaintiffs, such omission to state the whole truth would not necessarily make Rheem liable in this case; but if such omission was deceitfully made to procure a credit Rheem did not honestly consider Klinefelter worthy of, then he would be responsible.”</p> <p>2. If the jury believe that Jacob Rheem wrote the recommendation of David Klinefelter of the 15th of November 1856, and at the time he held a conveyance of the one-half of all Klinefelter’s property, and held a judgment against Klinefelter for $1000, all of which he had taken as an indemnity for endorsing the notes for him mentioned in that communication of the 15th of November 1856, and he withheld and suppressed the fact that he had taken such securities for his endorsement, he thereby asserted a falsehood, — and if his assertion, as made, induced the plaintiffs to part with their property, which they have thereby lost, although he may have had alone as his intention to benefit the .said David Klinefelter, he is liable in damages to the plaintiffs to indemnify them for their loss.</p> <p>Answer. — “We have said that the suppression of the truth may be equivalent to the assertion of a falsehood, and if suppressed with intent to deceive and perpetrate a fraud, it would make Rheem responsible, even if his only design was to benefit Klinefelter. But if the letter was honestly written, and Rheem really believed all that he stated was true, and that Klinefelter was worthy of the credit he asked, and would have given him credit to that amount himself — then he is not guilty of such fraud and deceit as would render him responsible in damages.”</p> <p>To this charge the defendant excepted ; and a verdict and judgment having been rendered for the plaintiffs for $627.50, he removed the cause to this court, and here assigned for error: 1. The admission in evidence of the proof given of plaintiffs’ incorporation. 2. The admission in evidence of the correspondence mentioned in the bill of exceptions. 3. The answers to the points presented on the trial. 4. The withdrawal from the jury of the evidence in reference to the Blanchard patent.</p>

On the 1st May 1857, the petition of sixteen citizens of Clay and West Cocalico townships was presented to the court below, praying that parts of said townships, embracing about seven hundred acres of land, and containing about fifteen voters, might be annexed to Ephrata township. Commissioners were accordingly appointed, who reported in favour of the proposed annexation.

This was an action on the case .by Samuel W. Haverstiek against David Sipe, for erecting a fence whereby the windows of the plaintiff’s house were obstructed; and for making a sink so near to the plaintiff’s wall that the contents thereof penetrated into his premises.

This was an appeal by Christian Shenk from the decree of the court below, distributing the proceeds of a sheriff’s sale of the real estate of Benjamin Hess. The appellant was the purchaser at the sheriff’s sale, and the balance of the purchase-money remained in his hands, it being agreed that it should he considered in court for purposes of distribution.

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an action of assumpsit by T. D. Estabrook against ’ Benjamin B. Gronder, on a promissory note for $510, dated the 8th March 1856, and payable one year and eight months after date, with interest.</p> <p>The defendant pleaded a set-off, consisting of a note for $1000, dated the 23d March 1850, at ninety days. . The plaintiff replied the statute of limitations; to which the defendant rejoined, that the plaintiff was not within the state of Pennsylvania, at the time the set-off accrued, nor at any time since. To this there was a general demurrer.</p> <p>The court below gave judgment for the plaintiff on the demurrer ; whereupon the defendant sued out this writ, and here assigned the same for error.</p>

This was an action of trespass quare clausum fregit by John Jacob and Henry Eox against Benjamin Yeakle, for entering on a tract of land in Hereford township, belonging to the plaintiff, and cutting and carrying away the timber therefrom.

This was an action of debt by Abraham Minich against Benjamin Minich and William Wormley, administrators of Michael Minich, deceased, on two sealed notes of their intestate; one of them for $114.04, dated the 5th January 1851, at one year; and the other for $100, dated the 2d April 1852, and payable on demand.

Ekror to the Common Pleas of Perry county. Held: that a miller who manufactured grain into flour, and then sold the flour to his customers at the mill, and at Reading and other places, where he sent it by his teams, was liable to pay a mercantile tax.

This was an ejectment by Samuel S. Smith against William II.

This was an appeal by Peter Martin from the decree of the court below, distributing the balance in the hands of Henry Stauffer, administrator of Isaac Stauffer, deceased. On the 28d December 1854, letters of administration upon the estate of Isaac Stauffer, deceased, were granted to Henry Stauffer, who filed his administration account, exhibiting a balance in his hands of $944.46.

This was an action of covenant by Benjamin M. Stauffer against the Inland Insurance and Deposit Company, upon a policy of insurance against fire, issued by the defendants on the 22d December 1856, whereby they insured the plaintiff for the term of four months, against loss or damage by fire, to the extent of $4000, on his stock of grain and flour, contained in a grist-mill, in Penn township, on the Chiques creek.

<p>An Orphans’ Court sale for the payment of debts, passes only the title which the decedent had in the lands. The sale of the equitable estate of a vendee by articles of agreement, does not disturb the title of the vendor.</p> <p>If, by an arrangement with the vendor, the entire estate in the land, both legal and equitable, be sold, the administrator is only chargeable with the price of the decedent’s equitable interest.</p> <p>The return to the order of sale is not conclusive, in the settlement of the administration account, as to the amount of the proceeds of sale.</p> <p>The vendor was no party to the proceedings in the Orphans' Court, and it was error to amend the return, and administration account, at his instance.</p>

This was an action of assumpsit, brought on the 6th October 1856, by Peter J. Little against Jacob Strock,- to recover a balance due on a settlement of partnership accounts. A declaration in assumpsit was filed, and the cause was at issue, when, on the 31st August 1857, the court below allowed an amendment, changing the form of action to account render.

Error, to the Common Pleas of Clinton county. This was an ejectment by Frederick Staver against James Ferguson and Daniel Betts, for the undivided half part of a tract of 650 acres of land, in G-allaugher township.

These were three attachments in execution, the first issued on a judgment in favour of Waterman, Young & Co., and the last two on judgments in favour of James, Kent, Santee & Co., against Bair & Hoffman, and served on David Hubler, as garnishee.

Appeal in Equity from the Common Pleas of Lebanon county. Held: and treat the cestui que use as the party in interest. We are satisfied, that the congregation in its corporate capacity, held the entire title, both legal and equitable, to the hundred acres of land, at the time this proceeding was commenced.

This was a proceeding under the Act of 19th February 1849, by John W. Patten against The Northern Central Railway Company, for the assessment of the damages sustained by the construction of the defendants’ road through the plaintiff’s land. The plaintiff was the owner of an extensive tannery at the junction of Stony creek with the Susquehanna river, in the borough of Dauphin, containing about forty-two acres.

This was an action of covenant by Jonathan D. Hiester against William McQuesney, for twenty-eight years’ arrears of a ground-rent of ten shillings per annum, on a lot in the borough of Manheim, reserved by a deed from William Bausman and others, to John Myers, dated the 28th October 1796. The ground-rent deed contained the usual clauses of distress and of re-entry; and the plaintiff showed title to the ground-rent under the parties to whom it was reserved.

This was an áction of covenant by James Boss against Joseph Dysart and John Earhart, to recover the arrears of rent reserved in a lease from the plaintiff to the defendants, of a saw-mill, &e., whereby the plaintiff demised the same to the defendants, reserving rent, from the 21st September 1847 to the 15th November 1851. The defendants were in the actual occupation of the demised premises during the whole term.

This was an ejectment by John May against George Troutman and Henry Keyser, for a tract of 302J acres of land, in Londonderry township, Bedford county.

This was an action of debt by Joseph Henry, administrator de bonis non with the will annexed of Daniel Fasig, deceased, against Richard Bickel and John M. Bickel, executors of Anthony Bickel, deceased, on a bond given by Anthony Bickel to Daniel Fasig, dated the 1st April 1822, conditioned for the payment of $1200 with interest, on the 1st April 1823. On this bond, were various endorsements of the payment of interest, between the years 1823 and 1845.

This was an action of assumpsit by Peter Hocker against Oliver Baskins, surviving executor of Henry Woods, deceased, to recover the sum of $51838.07, which the plaintiff had paid as surety for John Strasbaugh and Henry Woods, who were the guardians of the minor children of Timothy Kirby, deceased.

<p>The sound and disposing mind required to constitute testamentary capacity, is one in which the testator is shown -to have had, at the making of his will, a full and intelligent consciousness of the nature and effect of the act he was engaged in; an understanding of the disposition he wished to make of his property by will; and of the persons and objects he desired to participate in his bounty.</p> <p>If a testator design to give the whole of his estate to a stranger, to the exclusion of his collateral relations, it is not necessary that he should have a recollection of the property he intends to dispose of, or of persons who are thus related to him. Distribution not being the thing attempted, a competency to distribute is not the test of mental capacity.</p>

Error, to the Common Pleas of Centre county. This was an ejectment by James Fox and Richard Fox against John Lyon, Anthony Shrob, David Stuart, William M. Lyon, John T. Matthias, and W. W. Dallas, for two tracts of land, containing 800 acres, in Taylor township. The case was formerly before this court, and is reported in 3 Casey 9.

* This was a feigned issue framed under the Sheriffs’ Interpleader Act of the 10th April 1848, between William L. Meyers, the claimant, and Samuel D. Prentzell and Charles Prentzell, trading as S. D. & C. Prentzell, the execution-creditors, to try whether certain goods levied on by the sheriff, under an execution against Maxwell & Cumming, were or were not the property of the said claimant.

* This was an action of account render by Andrew Parker, executor of James Mathers, deceased, against William H. Patterson, late copartners. Judgment quod computet having been entered, auditors were appointed, who reported a balance in favour of the plaintiff of $183.55. And on the 9th May 1855, the court below, after correcting an error in the calculation of interest of $233.33, entered final judgment for the plaintiff.

* This was an action of trespass quare clausum fregit et de bonis asportatis, by Amos Shadle, Jonas Snyder, Frederick Rathfon, and Nathan Forrey, against Patrick O’Reilly, Lawrence Devereaux, Matthew Fox, and Michael Mehny, for entering a certain close of the plaintiffs, situate in Greenwood township, Juniata county, adjoining lands surveyed in the names of Peter Osborn and others, and felling, cutting down, and destroying the timber trees there growing.

* This was an action of assumpsit by John Ritter, committee of Samuel Borrell, a lunatic, against Isaac E. Hollenbaugh, administrator of John Borrell, deceased, to recover the plaintiff’s share of the profits of a farm, devised by Nicholas Borrell to his three sons, John, Jacob, and Samuel Borrell, as tenants in common.

<p>The constitution vests all judicial powers in the courts of justice, and forbids their exercise by the legislature.</p> <p>The “law of the land,” which gives character to a case, and by which it is to be decided, is the law that is inherent in the case, and constitutes a part of it, when it arises as a complete transaction between the parties. ■</p> <p>If this law be changed or annulled, the case is changed, and justice denied, and the due course of law violated. A law that is enacted after a case has arisen can be no part of it: nor is any law relating merely to the forms of the remedy.</p> <p>The bill of rights requires that the law relating to the transaction in controversy, at the time when it is complete, shall be an inherent element of the case, and shall guide the decision; and that the case shall not be altered, in its substance, by any subsequent law.</p> <p>Therefore, an Act of Assembly, making valid a sheriff’s sale, which had been decided by this court to pass no title, is unconstitutional and void.</p> <p>Menges v. Wertman, 1 Barr 218, overruled.</p> <p>But if, in an action of ejectment, a rule of law be established by this court, which is conclusive in favour of the title claimed by one party, and the case be thereon decided in his favour; and afterwards, and before a new suit is instituted to try the title, the successful party sell the land to a bond fide purchaser for value; and after that, the court should discover and decide that the rule by which they had established the title was an untrue one, and that it ought to have been decided so as to give the land to the other party; in such a case, the title of the original unsuccessful party must be treated as lost.</p> <p>It is a plain duty of government, in correcting mistakes in its administration, to see that this shall not be done at the expense of a citizen who has in good faith trusted in its guidance, and who had no part in the mistake.</p>

* This was an action on the case by Ira Forrester against Isaac D. Fisher, for a malicious prosecution.

<p>Where a party in possession of land under a parol contract, abandons his rights under it, and attorns to his vendor as a tenant, there is no title, legal or equitable, remaining in him, which can be taken in execution by his judgment-creditors.</p> <p>Zimmerman v. Wengert, 7 Casey 401, affirmed.</p> <p>A deputy sheriff has no power, when executing a writ of habere facias possessionem, to qualify the legal effect of his act, by any declarations he may make to the parties.</p>

Appeals from the Common Pleas of Berlcs county. These were two appeals from the decree of the court below distributing the proceeds of a sheriff’s sale of the real estate of Adam Johnston; the one taken by William Briggs and others, mechanics and labourers in the employment of the said Adam Johnston; and the other, by Ritter & Kline and others, his judgment-creditors.

This was an action of assumpsit by Joseph Milliken, who survived James Milliken, against Robert A. Means, to recover damages for an alleged breach of contract, arising out of the sale and conveyance, by James Milliken and Joseph Milliken, to William Thompson, John McDowell, and the defendant Robert A. Means, of three undivided fourth parts of “The Hopewell Property,” for the consideration of $15,000.

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was a case stated, between Joshua Vaughen and Peter Haldeman, in the nature of a special verdict, with the right to sue out a writ of error; in which the following facts were stated for the opinion of the court:—</p> <p>In 1846, Peter Haldeman purchased a large brick dwelling-house and lot of ground, in Second street, in the borough of Columbia, and moved into it and occupied it with his family until the 20th April 1856.</p> <p>In July 1853, for the more comfortable enjoyment of the property, and lighting the premises, he caused gas-pipes to be introduced into the several apartments of the house, and ornamental and handsomely finished chandeliers, such as are commonly used in good private parlours, and brackets or side-lights attached to them. Two chandeliers were screwed into pipes in the ceiling of the parlour, and the joints were covered with cement; the brackets were screwed into the pipes in the wall and cemented— this being the common and usual mode of fastening gas-pipes.</p> <p>On the 1st of January 1856, the premises were sold, by the sheriff, under an execution against Peter Haldeman, the defendant, and were purchased for $7175, by the plaintiff, Joshua Vaughen, to whom a deed was executed on the 20th of the same .month. On the 21st, notice was given to the defendant, to quit the premises, at the expiration of three months. On the 8th April 1856, on application of the plaintiff, a writ of estrepement to stay waste was granted, and placed in the hands of the sheriff.</p> <p>The said Peter Haldeman, while this writ was in the hands of the sheriff, and before removing from the premises, notwithstanding a notice from the plaintiff not to do so, detached the said chandeliers and brackets, and carried them away.</p> <p>It was agreed that if the court should be of opinion that Vaughen, the purchaser of the real estate, was legally entitled to the said chandeliers and brackets, or either of them, then judgment should be entered generally for the plaintiff, the damages to be ascertained by writ of inquiry; but if he $as not entitled to them, or either of them, then judgment to be entered for the defendant; the costs to follow the judgment.</p> <p>The court below (Hates, P. J.) gave judgment for the defendant on the case stated; which was here assigned for error.</p>

This was an action of assumpsit by William L. Bear, administrator of Andrew Bear, deceased, against Elizabeth Bear, his widow, to recover the sum of $1807.50 advanced by the decedent in his lifetime for the improvement of his wife’s separate estate. The defendant, at the time of her marriage with the decedent, was the owner of a piece of ground in the city of Lancaster, situate on the north side of North Queen street, near the corner of Lemon street.

This was an action of debt by Richard McGrann & Co. against The North Lebanon Railroad Company, upon an award by James Worrell, late chief engineer of the defendants.

This was an action of assumpsit by Daniel K. Reamey against James A. MeCahan, for building a brick house.

Appear from the Register’s Court of Huntingdon county. This was an appeal by Henry Cornpropst from the decree of the Register’s Court, affirming the decision of the Register, who had granted letters of administration upon the estate of Christopher Lawless, deceased, to J. Sewell Stewart.