Volume 4 — Pennypacker's Pennsylvania Reports

Appeal of Henry S..Baum from the decree of the Orphans’ Court of Allegheny County, dismissing his petition for the partition of the real… Held: and if the legal title was, and is, in tlié executors, the line of descent is broken and the grandchildren are not vested' with at least one of the necessary elements to claim partition, viz: “ unity of possession,” and in further confirmation of this position, a strict construction of the will makes it clear that if the executors…

Appeal of Thomas J. Blackmore and Margaret S. Black-more, his wife, in right of said Margaret S. Blackmore, from a decree of the Court of Common Pleas, No. 2, of Allegheny County. Bill in equity between the above-named parties, complainants, and William II. Smith, William H. Everson, George T. Robinson, William Rea, and Reade W, Bailey, defendants.

2, of Allegheny County. ■ Ejectment by James M. Courtney against Benhart Keller and the board of school-directors of the school-district of Kilbuck township for 16-^j- perches of land in Kilbuck township. On the trial before White, J., the following facts appeared : The lot in dispute had been used for school purposes, with the consent of its owner, Wm. Courtney, by the board of school-directors of Ohio township, from about the year 1838 up to the date of Wm.

2, of Allegheny County. ■ Case for deceit by Wilson Phillips against Charles C. Craft. ■ On the trial, Octbber 2, 1884. before Ewing, P. J., the following facts appeared: In 1876, J. C. Williams, of Pittsburgh, was the owner of three thousand nine hundred and fifty-four acres of land in Raleigh county, W. Va.

1, of Allegheny County. Replevin by P. R. Diehl and Amanda Diehl, his wife, in her own right, and Clara V. Diehl against H. H. Woods, agent, and G. W. Carnes, constable, for household goods seized in distress for rent alleged to be in arrear. Upon the trial of the case, April 16,1884, before Bailey, J., the following facts appeared: On April 1, 1883, Fred.

Appeal of James Ford and James Gallagher in re street in Chartiers borough.

1, of Allegheny County. Ejectment by John EL Belford and Mane Belford, his wife, in right of said Jane Belford, against Ellen C. Green, for a lot of ground situate on Forty-second street, (formerly Chestnut street,) in the Seventeenth ward of the city of Pittsburgh, (formerly the borough of Lawrenceville.) Plea, not guilty.

Appeal of H. F. W. Hespenheide from the decree of Common Pleas, No. 1, of Allegheny County, dismissing complainant’s bill and confirming the master’s report. Bill in equity, by II. F. AY. Hespenheide, against the Pennsylvania Company, lessees, operating the Pittsburgh, Fort AVayne and Ohioago railway, setting forth: First. That he is the owner in fee of a certain tract of land situate in Killbuck township, county of Allegheny, and.State of Pennsylvania. Second.

1, of Allegheny County. Appeal of David Hutchinson, W. J. Flinn, J. P. Mc-Gaxvey, and J. B. Larkin, from the decree refusing a preliminary injuction. Bill in equity, by David Hutchinson et al. against the Board of School-Directors of the Forbes Sub-School-District of the city of Pittsburgh, setting forth : First. That they are residents of the said Forbes suuschool-district of the city of Pittsburgh, and own taxable property within said sub-school-district. Second.

1, of the County of Allegheny. Case by James Marlatt, for use of A. M. Watson against Henry Marlatt.

1, of Allegheny County. Ejectment by Sarak Magee against Patrick McAfee to recover a lot of ground with a house erected thereon, situated in the city of Pittsburgh. The following facts appeared at the trial, October 19, 1883, before Collier, J.: Both plaintiff and defendant claimed title through the will of John Magee.

1, of Allegheny County. Assumpsit by B. G. McGrew and A. B. McGrew, trading as B. G. McGrew & Co., against William McGregor and James W. Dudgeon. Upon the trial in the court below, before Stowe, P, > J., the testimony was as follows : B. G. McGrew, one of the plaintiffs, testified, inter alia : I am a broker in the oil exchange. W illiam McGregor, the defendant, employed me through my son. I purchased oil on the 10th of November, 1882.

■Error to the Common Pleas, No. 2, of Allegheny County. Case by G. A. Mnndorff and A. S. Mnndorff, trading as G. A. & A. S. Mundorff, against The Board of School-Directors of Kilbuck Township, to recover $372. 67 for window-frames and finishing-lumber, claimed to have been furnished the defendants for use in building a school-house under their control and management.

2, of Allegheny County. Issue devisavit vel non, between John Muse and Margaret Douglass and James Edward Myers, by his next-friend, Margaret Douglass, to determine the validity of the will of Robert Douglass, deceased.

1, of Allegheny County. Feigned issue by The Pittsburgh and Birmingham Passenger Railway Company, claimant, against John Boyd, to determine the ownership of five horses, levied upon as the property of Joseph L. Tipton, trading as Tipton & Craig, at the suit of John Boyd.

.Error to the court of Common Pleas, No. 1, of' Allegheny County. Replevin, by W- N. Riddle against W. C. Stewart and C. E. Stewart, for a stock of goods valued- at $41,000 in two stores in Pittsburgh.

Appeal of Rev. Nevin Woodside et at. from tlie decree of Common Pleas, No. 1, of Allegheny County, making perpetual an injunction restraining defendants from preventing Samuel W. Douglas, or any other person whom the Pittsburgh Presbytery may appoint, from preaching in, and occupying the pulpit of, the First Reformed Presbyterian Congregation of Pittsburgh; restraining Rev. Nevin Woodside from preaching in said church building or officiating as pastor, and restraining…

Case for breach of promise to marry and for seduction, by Eliza Jane Hilty against W. C. Guthrie. From the records of the court below, it appeared that an arbitration of the case was held in which an award of $500 was filed in favor of the plaintiff on March 3, 1882. On March 15, 1882, the plaintiff filed a bill of costs for the attendance of and subpoenaing of witnesses at the arbitration. On March 22, she took an appeal from tho award of the arbitrators.

In the court below these were two actions of ejectment, one by J. K. Lanahan against John Dampman, David Buchanan, and Walter Weaver, for the west half of lot No. 94 in the borough of Freeport, the other by the same plaintiff against John Dampman and George Iseman, for the east half of the same lot.

Sammons in dower by Henry Landis and Caroline V. Landis, his wife, to the nse of said wife, against Patrick Torney. Plea, Statute of Limitations. Upon the trial in the court below, before Neale, P. J., the following facts appeared: The real plaintiff, Mrs. Caroline Y. Landis, was married to Alexander Cunningham on the 8th of January, 1851, and lived with him until January, 1861, at which time he died.

Case by Conrad Friday against the Pennsylvania Railroad Company. On the trial in the court below, before Dean, P. J., the following facts appeared: Conrad Friday, the plaintiff, was the owner of a farm, which was purchased by him in April, 1861, containing thirty-one acres, and situated about five miles from Tyrone, on the eastern slope of the Allegheny mountain, in Snyder township, Blair county.

Ejectment by W. P. Coburn against Isaac E. Hall, to recover forty-four acres of land in Tuscarora township, Bradford county. The following facts appeared at the trial, December 22, 1882, before McCollom, P. J. Philip P. Hall, the father of Isaac E. Hall, the defendant, died the owner and in possession of a farm which included the land in controversy. O. E. Pickett was appointed administrator of his estate.

Appeal of Norris Spackman,. Lee Spackman, Huida Spackman, executrix of George Spackman, deceased, Jane Spackman, Rachel Jones, Rachel A. Powell, George James, Rachel Pennypacker, and Mary Conrad, from the decree of Orphans’ Court of Chester County, confirming the auditor’s report upon the distribution of the balance shown by the account of Robert F. Hoopes, administrator of Isaac Spackman, deceased.

Appeal of John N. Welliver and Sarah E. Welliver, his wife, and Jacob Brown from a decree of the Court of Common Pleas of Clinton County, imposing upon them the costs of an equity suit in which they were complainants. Bill in equity between John N. Welliver and Sarah E. Welliver, his wife, in right of said wife and Jacob Brown, complainants, and Joseph Nesbit and John Candor, sheriff of Clinton county.

Asstompsit by Warder, Bushnell, and Glessner against Hugh Blair, to recover the price of a reaper alleged to have been-sold and delivered by plaintiffs to defendant. On the trial before Church, J., the following facts appeared : The plaintiffs are manufacturers of mowers, reapers, and other agricultural implements, and W. A. T. Andrews is their general agent and salesman for Crawford county.

Trespass on the case by The Lochiel Rolling-Mill Company against The Harrisburg Car Manufacturing Company to recover the difference between the contract price and the market price of certain bar-iron alleged, by the plaintiff, to have been contracted for by the defendants, and afterwards refused to be received by them.

Appeals by the Pottsville National Saving Fund and the Pottsville Union Saving Fund Association from a settlement of an account against these corporations for a tax upon their capital stock, made by the Auditor General and State Treasurer, under the act of June 7, 1879. (P. L., p. 114.) These cases were tried by the court, Simonton, P. J., without a jury, by agreement of the parties, under the act of April 22, 1874.

Scire facias sur mortgage by Isaac Woodrow, administrator of Joseph. J. Taggart, assignee of Dillwyn P. Paiste and of Harrison Fairlamb, against Thomas Blythe, mortgagor, and John Spencer, terre tenant.

Appeal of G. T. Elliott from the award of viewers assessing damages in his favor and against the New York, Chicago and St. Louis Railway Company for $7,000. The'Court ordered that an issue be formed making G. T. Elliott plaintiff and the New York, Chicago and St. Louis Railway Company defendant, and that defendant be required to plead as if a narr had been filed. (Eighth assignment of error.) Defendant pleaded, under protest, “not guilty.” Gr. T. Price, administrator of Gr.

Trespass, de bonis asportatis, by C. IT. Held: on the farm where he lived, a public sale of this stock. The sale was advertised in six counties, and it was also made known that Kroh was to give up farming and remove to Maryland on the following first of April. About $2,000 worth of goods were disposed of at this sale, and with the proceeds Kroh paid some of his debts.

Ejectment by Thomas Hughes against Robert Smith, guardian of James Staggers and Sarah. Anne Staggers, now intermarried with Leroy Johnson, and Leroy Johnson, her husband, and Melvin C. Hull, tenant in possession, for a lot or piece of ground in Jackson township, containing 25 acres, more or less.

Appeal of Sarah. L. Gregory from the decree of the Court of Common Pleas of Huntingdon County overruling exceptions to and confirming the report of an auditor appointed by the Court to distribute the balance in the hands of a receiver appointed to collect the assets, property, or effects belonging to the firm of B. Green & Co. The following facts were found by the auditor, William Dorris: For several years previous to January, 1882, Barton Green and Lewis L. Gregory, as…

<p>Appeal of Thomas K. Henderson from a decree of the Court of Common Pleas of Huntingdon Qounty, discharging a rule on Thomas J. Dunkel, sheriff of Centre county, to pay money into court arising from the‘sale of the personal property of Fleck & Miller.</p> <p>The facts, as they appeared before the court, from evidence taken and depositions read at the hearing a-nd argument of the rule, were as follows:</p> <p>Prior to March, 1883, Fleck & Miller were engaged in mercantile business in Philipsburg, Centre county, Pa. On March 16, 1883, Fleck & Miller’ executed judgment notes in Huntingdon county to Crosswell & Miller for $900, F. K. Henderson for $492, and to seven other creditors for various amounts. Judgment was entered in the common pleas of Huntingdon county on each of these notes by Speer & McMurtrie, attorneys-at-law, in Huntingdon. Thomas Miller, one of the firm of Fleck & Miller, testified that both Mr. Fleck and himself went to Huntingdon to the office of Speer & McMurtrie. “We made confession of judgment to the parties. We did it on that day because we found we were going to fail, and we preferred our home creditors.” Miller testified that the firm of Fleck & Miller owed Thomas K. Henderson $474 50, but that, owing to an error in summing up the account, judgment had been confessed to him for $492. The above judgments were entered on March 23, 1883, in the common pleas of Centre county, and writs of test, ii.fa. were issued on them March 24, 1883, returnable on April 9, 1883. On March 27, 1883, Speer & McMurtrie, who were not the regular attorneys of Henderson, informed Henderson by letter of what had been done, to which he replied:</p> <p>“ March %8, 1883.</p> <p>“Messrs. Speer & McMurtrie :</p> <p>“Gents : Yours to hand. In reply, I did not know of the failure of Messrs. Fleck & Miller until I received yours. Will certainly give the matter my attention, as my claim is justly due and owing. Will you please give me a statement of the writs, with the names of the plaintiffs, &c., as I want to go to the sale and protect my claim ? Much obliged for your information.</p> <p>“Respectfully,</p> <p>“Tiios. K. Henderson.”</p> <p>Under the above-mentioned writs, Thos. J. Dunkel, sheriff of Centre county, levied upon the stock of merchandise and personal property of Fleck & Miller, and sold it at public outcry in Philipsburg, commencing on April 4, 1883, and continuing from day to day until all the property levied upon was sold. Henderson testified, inter alia, as follows :</p> <p>“I went over to the sale. Sheriff Dunkel, of Centre county, was managing the sale. I met the sheriff at the Ward House, in Tyrone, as I was going over to the sale. He showed me the writs in his hands against Fleck & Miller * * * * At Philipsburg I told him I expected the store to be retailed out and the most made of it that could be, and in the event of my judgment not being covered — debt, interest, and costs — that he should pay the money into court, as I intended contesting some of the claims; that I believed them to be fraudulent, one of them at least. * * * * I did not notify Speer & Mc-Murtrie to retire from the case. I did not recognize them as my attorneys at anytime.” Dunkel testified: “He (Henderson) did not, at the Ward House in Tyrone, or in Philipsburg during the sale, that I remember, give me any notice to pay the money into court. I don’t think I had notice at any time from Henderson that I was to pay the money into court, until after it was actually paid over to Speer & McMurtrie. Henderson said something to me about not paying the money to Speer & McMurtrie, but I don’t recollect that he said to pay it to any one else. * * * -k j paid the entire amount to Speer & McMurtrie, the attorneys on the several writs, and took their receipt therefor.” On April 11, 1883, a written notice, signed by T. K. Henderson, addressed to T. J. Dunkel, Esq., sheriff of Centre county, was handed to D. F. Fortney, Esq., of the Centre county bar, notifying the sheriff to pay no money to Speer & McMurtrie on the debt, interest, or attorneys commissions’ in this, case, that Speer & McMurtrie were not his attorneys ; that he should pay the debt and interest to him, and the attorneys’ commissions to his regular attorneys, Petriken & McNeil, or the debt, interest, and attorney’s commissions to Messrs. Petriken & McNeil; and further, that he should pay the whole fund realized from the sale of the personal property of the defendants into court, as he intended having an auditor appointed and contest the validity of some of the judgments. Fortney, who was attorney for the sheriff, indorsed the notice as follows : “And now, April 11, 1883, I hereby accept service of this notice. D. F. Fortney, attorney for sheriff.” .</p> <p>Fortney testified as to this notice as follows :</p> <p>“Some time on or about the 11th of April, 1883, Mr. Bower, of the firm of Alexander & Bower, attorneys in Bellefonte, came to me with some kind of a paper, which he said had been sent to him by Petrekin & McNeil, of Huntingdon, Pa., to serve on the sheriff of Centre county. Mr. Bower said, when he came to me, that ‘the sheriff is away ; you had better accept service for him.’ I took the paper and wrote on an acceptance and signed it. I think Mr. Bower also left a copy of the notice in my hands. The sheriff was away at the time, and did not return for two or three days. At the time Mr. Bower brought this notice to me I was very busy in my office ; I didn’t even take time to read the notice, and never, to my knowledge, called the attention of the sheriff to it or told him anything about it. I had no interest in the sale of the property of Fleck & Miller; knew nothing about the writs or the sale, or what the sheriff had done; he had never consulted me or said anything to me about it. When I accepted service of this notice I had no direction or authority from him to do so. In cases in which the sheriff desires my advice, he comes to me, and when I am to accept service or notice of any rules for him, he always directs it. I believe that the sheriff never knew anything about the notice to pay this money into court, or that Mr. Henderson wanted to contest judgments, until after the money realized on the sale had been paid over to Speer & McMurtrie, attorneys.”</p> <p>On April 10, 1883, the day after the return day of the writs, a rule was granted on .the sheriff to return his writs. On April 16, he paid the money realized from the sale, less his costs to the attorneys of record, Speer & Mc-Murtrie, and took their receipt therefor. On the 17th, he returned the writs to court.</p> <p>On April 18, 1883, a rule on the sheriff to pay the money into, court was applied for by M. M. McNeil, but was continued on account of the absence of the president judge. On June 26, the rule was granted. On August 13, it issued, and on August 16, was served on D. F. Fortney and acceptéd by him for the sheriff.</p> <p>The Court, after argument on March 2o, 1884, discharged the rule.</p> <p>Henderson thereupon took this writ, assigning for error the action of the Court in discharging the rule as above.</p> <p>D. F. Fortney was generally known as the sheriff’s attorney, and his acceptance of service as agent was sufficient to bind his principal. When one appears or onc.i undertakes to be an attorney for another, he shall not be permitted to withdraw himself, and the court looks no further, but proceeds as if the attorney had sufficient authority.</p> <p>It was the bounden duty of the appellee in this case to pay the money into court: McDonald ®. Todd, 1 Grant, 18; Williams’ Appeal, 9 Barr, 267; Irwin v. Workman, 3 Watts, 362.</p> <p>In the absence of fraud or collusion, a payment to the attorney of record discharges the defendant, notwithstanding a notice from parties interested in the judgment: Bracken ?;. Pittsburgh, 27 Pitts. L. J., 202.</p> <p>The sheriff’s duty in distributing the proceeds of an execution against personal estate is not to pay the money into court, but to the party by whom the writ was issued: Marble Co. v. Burke, 5 W. N. C., 125; Dunn v. Megarge, 6 W. N. C., 204; Weis ■». Weis, 3 W. N. C., 76 ; Geisel v. Jones, 7 W. N. C., 82; Kirk ». Ruckholdt, Id., 81; Baum v. Brown, 11 W. N. C., 202.</p> <p>If the sheriff, in making the distribution, committed an error, or misapplied or misappropriated any of the funds arising from this sale, the proper remedy was by action on his official bond : In re rule upon John S. Bastían, 9 Norris, 472; Mather v. McMichael, 1 Harris, 302; Norton n. Osier, 91 Pa., 160.</p>

Appeal of John A. Wissel and Martha A. Wissel, administrators of Conrad Wissel, deceased, from the decree of the Orphans’ Court of Indiana County, confirming the auditor’s report distributing moneys in their hands as administrators. Conrad Wissel died in July, 1878, and letters of administration were granted to his son, John A. Wissel, and to his widow, Martha Wissel.

Ejectment by Charles H. Grambs against I. V. Lynch, J. C. Miles, assignee of I. Y. Lynch, Peter Davidson, and Charles P. Davidson, assignee of John Stuart, defendants, and Oscar F. Freeman and Thomas Davidson, terre tenants.

Trespass by F. E. Fahrig against D. H. Wade. On the trial, before Handley, P. J., the following facts appeared: The borough of Hyde Park, under the authority conferred by acts of Assembly of March 25,1864, (P. L., pp. 84,85,) had issued bonds to pay bounties to volunteers.

Trespass for injury to personal property by Duncan Wright against D. H. Wade. On the trial before Handley, P. J., the following facts appeared: The borough of Hyde Park, under the authority conferred by acts of Assembly of 25th March, 1864, (P. L., pp. 84, 85,) had issued bonds to pay bounties to volunteers.

Burke and M. Malone, in which James M. Burke, and James M. Burke and Edward McGovern, surviving executors of M. Malone, deceased, for the use •of James M. Burke and Mortimer Malone, were plaintiffs and tlie county of Lancaster was defendant.

July 23, 1879, bill in equity filed by Eli Lybe and Laura M. Lybe, his wife, and M. B. Eshleman and Annie M. Eshleman, his wife, against Rudolph S. Herr. After answer filed, the case was referred to George Nauman, as master, who found, inter alia, as follows : In the year 1855, Peter E. Lightner became the owner of certain lands in Lancaster township, a short distance west of the city of Lancaster.

Rule granted on petition of W. D. Christman, administrator of Abraham Pennypacker, deceased, upon the Philadelphia and Reading Railroad Company, to show cause why the entry of satisfaction of a certain judgment obtained by Abraham Pennypacker in his lifetime against the said railroad company, should not be stricken off.

Case stated between Levi Ringwalt as plaintiff and Martin Ringwalt and David Ringwalt as defendants, to determine the ownership of one undivided yfy part of three tracts of land situate in Lancaster county. The case stated for the opinion of the Court in the nature of a special verdict was as follows: - Martin Ringwalt, of Caernarvon township, in Lancaster county, made his last will in writing, dated' May 7, 1821, in which he devised all his real estate to his eight sons!

Appeal of Petei Staub, Sr., from the judgment of a justice of the peace in favor of Maria Wolf for wages. The following facts appeared at the trial, October 1, 1883, before Woodward, J.: In 1881, Peter Staub, living on a farm in Kingston township, Luzerne county, Pa., went to Germany, and while there made such statements to the plaintiff, Maria Wolfe, as induced her to accompany him home. Maria Wolfe, her young daughter, and her mother returned with him to America.

Appeal of Abraham Grassmyer from the decree of the Court of Common Pleas of Mifflin County, distributing the proceeds of the sheriff’s sale of the personal property of Samuel J. Knepp. The following facts appeared from the depositions submitted to the court below : On April 3, 1879, Abraham Grassmyer issued a Ji. fa. to No. 42 of April term, 1879, against Samuel J. Knepp.

Ejectment by Hannah. Christman, otherwise called Hannah Buskirk, against Richard Christ and William Bus- • kirk to recover a tract of… Held: by a long course of judicial decisions to create in a deed a condition and not a covenant merely? “The conveyance of a tract of land ‘ subject, nevertheless, to the condition and obligations contained in a certain article of agreement existing between the parties,’ creates an estate upon condition, and they who are interested in the…

Case by William Galbraith against George W. Zimmerman, J. Milton Zimmerman, M. P. Anderson, and Ida Zimmerman, executors of the last will and testament of Joshua Zimmerman, deceased, to recover damages for a breach of a parol contract to convey real estate.

Ejectment by William Sigman and Jacob Herster, and Susannah, his wife, against Reuben Osterstock, and Sarah Osterstock, to recover the one half part of a farm of one hundred and seventy-five acres, in Forks township, formerly the property of George Sickman.

Amicable action in assumpsit by The Susquehanna Mutual Fire Insurance Company against John H. Staats. Also a certiorari to the court of common pleas of Northampton county on appeal from the decree of the court distributing the fund paid into court under a ft. fa. issued by John H. Staats to use of Edward J. Fox against The Susquehanna Mutual Fire Insurance Company.

Attachment sur judgment by William Savidge against Levi Smith, with notice to George W. Smith, trustee under the will of John Smith, deceased, garnishee. Rule to show cause why judgment should not be opened and George W. Smith, testamentary committee of Levi Smith, let into a defense, and why the attachment execution should not be set aside.and judgment and execution thereon be restrained.

<p>Error to the Court of Common Pleas of Northumberland County.</p> <p>Appeal from judgment of A. N. Brice, justice of the peace, entered against George W. Heim, for violation of the provisions of the eighth section of the act to incorporate the Sunbury Steam Perry and Tow Boat Company, passed April 5, 1870.</p> <p>On the trial in the court below, the following facts appeared :</p> <p>The plaintiff company was incorporated by act of 5th April, 1870, P. L., 871, which provided, inter alia, as follows:</p> <p>Section 6. That said company shall be, and they are hereby, authorized to charge such rates of fai’e and tolls for the carrying of passengers, freight, merchandise, live stock, vehicles, and every species of property, and for the towing boats, rafts, arks, &c., conveyed by them, as their board of managers shall direct, &c.</p> <p>Section 8. That said company shall keep the said landings and ferry in good condition for the accommodation of the public ; and for the better protection of the same, all persons except the agents or employés of said company are hereby prohibited from pushing, rowing, or towing any boat, raft, float, ark, flat, or other vessel, laden or unladen, for pay, hire, gift, or reward over the said Susquehanna river, to or from any point opposite or within the limits of the borough of Sunbury aforesaid, and if any person shall be guilty of a violation of this act, they shall, for each and every conviction thereof, forfeit and pay the sum of twenty dollars, to be recovered before any court of record or justice of the peace of this Commonwealth, as debts of like amount are recovered, the one half to be paid to the informer, who shall sue therefor, and the other half to the use of the said borough of Sunbury.</p> <p>On August 5, 1879, the council of the borough of Sun-bury passed the following resolution:</p> <p>“On motion of W. C. Packer, resolved that permission be arid is hereby granted to George W. Heim, to ferry with a steamboat from Arch street landing, on the river Susquehanna, to a point below Ira T. Clement’s landing, on the berm bank side of the Pennsylvania canal, and from either of the above-named points, to and from the borough of Northumberland, and any intermediate points.”</p> <p>After the passage of this resolution, the defendant ran a steamboat with a screw propeller, carrying passengers across the river, within the borough limits, for hire.</p> <p>The Court thereupon charged the jury, inter alia, as follows:</p> <p>‘ ‘ At present I have only to say that it seems to me it is plain that the act only prohibits the pushing, rowing, or towing any boat, raft, float, ark, flat, or other vessel for pay or hire. For instance, a person on this or the other side of the river has a boat, raft, float, or an ark. that he desires to have towed across the river from one side to the other — no one would have the right, according to this act of Assembly, to either push, row, or tow it for hire, except an agent or employé of the Steam Ferry and Tow Boat Company, and for so towing he would be liable to a penalty of $20.”</p> <p>“It seems to me, at present, that this was all that was intended by the Legislature when it passed the act incorporating the Sunbury Steam Ferry and Tow Boat Company, and inasmuch as it has not been proved by any testimony in the case that George W. Heim, the defendant, either pushed, rowed, or towed any boat, raft, float, ark, flat, or other vessel, either laden or unladen, for pay, hire, gift, or reward, over the Susquehanna river, to and from any point opposite or within the limits of the borough of Sunbury, aforesaid, your verdict will have to be in favor of the defendant. You will, therefore, render a verdict for the defendant, and the Court will direct a motion for a new trial, when this case will be fully considered.” .</p> <p>Counsel for plaintiff excepted to the above charge.</p> <p>October 1,1883, verdict for defendant, upon which judgment was afterwards entered.</p> <p>Plaintiff then took out a writ of error, and assigned as error the charge of the Court and the direction to the jury to find a verdict in favor of the defendant.</p> <p>The whole act of incorporation must be construed together. The prohibition against pushing, rowing, and towing any boat for pay or hire includes a boat propelled by a screw propeller. If this is not a technical “pushing,” it comes within the intention of the act. Statutes are to be construed so as to best effectuate the intention of the makers: Improvement Company «..Commonwealth, 13 Norris, 450 ; People ». Insurance Company, 15 Johns.v 358 ; 1 Kent’s Com., 462 ; Whitney «. Whitney, 14 Mass., 91; Potter’s Dwarris on Statutes, 231-262.</p> <p>The plain construction of the -whole act is that the plaintiff company should have the exclusive privilege of ferrying passengers and towing boats.</p> <p>The borough council never had the power to grant the privilege ; but if they had, so much of the act incorporating the borough as conferred such authority wras repealed by the act incorporating the plaintiff.</p> <p>Under the act of incorporation, it is the duty of the borough to establish and maintain a public ferry. Prom the express letter of the act incorporating the plaintiff company, it was intended by the Legislature to be limited to the towing traffic. Two classes of employments are mentioned in the sixth section, viz: “ towing ’ ’ and “carrying.” The eighth section prohibits “towing,” but not “carrying.” A legislative grant will not be deemed exclusive unless the intention is perfectly clear: Johnson «. Crow, 6 Norris, 184. An act which operates retrospectively to take what is, by existing law, one man’s, and, without his consent, transfer it to another, violates the bill of rights: Palairet’s Appeal, 17 P. P. Sm., 479; Norman «. Heist, 5 W. & S., 171; Pinney «. Somerville, 30 P. P. Sm., 59 ; Evans «. Erie Co., 16 Id., 222; Canal Co. «. Landis, 9 Watts, 228; Plymouth «. Jackson, 3 Harris, 44; Richards «. Rote, 18 P. P. Sm., 248; Saving Fund «. Philadelphia, 7 Casey, 185 ; Bank «. Pittsburgh, 1 Wr., 340 ; Navigation Company «. Coon, 6 Barr, 379; Attorney General «. Turnpike Road, 5 P. P. Sm., 466.</p> <p>The grant to the plaintiff must be strictly construed: Com’th«. R. R. Co., 3 Casey, 339; Penna. R. R. Co.’s Appeal, 12 Norris,. 150 ; Maris «. Railway Co., 10 Phila., 41; Whitaker v. Canal Co., 6 Norris, 34; in re Bridge Co., 10 Id., 216.</p> <p>The Legislature cannot take away the prior right of the borough without compensation : Pickering v. Rutty, 1 S. & R., 511; University ». Robinson, 12 S. & R., 29 ; Carr v. Wallace, 7 Watts, 394; Appeal of Borough of Easton, 11 Wr., 255; Haldeman v. R. R. Co., 14 Wr., 425 ; Craig v. Allegheny, 3 P. F. Sm., 477 ; McClinton v. R. R. Co., 16 Id., 404; Harrisburg v. Crangle, 3 W. & S., 460.</p> <p>The right of eminent domain will not be presumed to exist: Phillips v. R. R. Co., 28 P. F. Sm., 177 ; Mifflinv. Railroad Co., 4 Harris,, 182.</p> <p>The Susquehanna,river is public highway: Com’th v. Richter, 1 P. & W., 462. The rights of the borough cannot be impaired by the act of 1870: Com’ th v. Water Co., 13 Norris, 516.</p> <p>The rights and privileges secured to plaintiff by charter should be limited to the “towing of boats, rafts, arks, &c.” Had the charter proposed more, it would have been invalid so far as it conflicted with the rights of the borough. The borough having granted to defendant the right to carry passengers, he is protected by the act of its incorporation.</p>

Appeal of James Curran, Richard A. Curran, and Samuel Curran from a decree of the Court of Common Pleas, No. 1, of the County of Philadelphia.

Appeal of John F. Girard and others from a decree of the Court of Common Pleas, No. 3, of Philadelphia County, entering judgment against them on demurrer to a bill in equity, in which John F. Girard, Margaret P. Lardy, Fabricius Devars Dumaine, Palmyre Devars Dumaine, Marie Celeste Girard De Roux, Marie M. ITenriette Girard, Ellen E. Girard, in her own right, and as widow and devisee, Jean Auguste Girard, deceased, Alfred DeLentilhac and Anne Stephanie DeLentilhac, his wife…

2, of Philadelphia County. The facts as they appeared at the tria!, and in the records of the court below, were as follows : On February 14, 1879, judgment was entered against George L. Moore and Henry B. Moore in favor of plaintiffs for $2,370 52, and an attachment execution was issued and served on II. G. Harris and Catharine C. McFillin.

1, of Philadelphia County. Scire facias sur mortgage by the Logan Square Building and Loan Association, No. 2, against Edwin M. Hoffner.

<p>Error to the Common Pleas, No. 4, of Philadelphia County.</p> <p>Debt by Catharine Bauer against Elizabeth Karstein, Augustus, Annie, and Edward Karstein to recover interest claimed to be due her on her share in certain lands of plaintiff’s deceased husband, John A. Bauer, sold by order of the orphans’ court to Augustus Karstein, the husband and father (since deceased), of the defendants, who are his heirs and terre tenants of the lands.</p> <p>The facts in the case as they appeared on the trial before Ti-iayer, P. J,; are as follows :</p> <p>On the 13th day of March, A. I). 1869, Henry A. Bauer presented a petition to the orphans’ court of the county of Philadelphia, for the partition of the real estate late of his father, John A. Bauer, deceased, among which real estate was included a property on the north side of Jarvis street, ninety-six (96) feet six inches eastward from Second street, containing in front thirteen (13) feet and in depth sixty-two (62) feet nine inches.</p> <p>The petition sets forth that the said John A. Bauer, the decedent, left surviving Mm a widow, Catharine Bauer, and seven children, viz: Henry A. Bauer, Catharine Evans, Louisa Bauer, Sophia Bauer, Josephine Bauer, John Bauer, and Ann Bauer, the last three minors, having for their guardian Catharine Bauer.</p> <p>The Court issued an inquest in partition, to which return was made by the sheriff May 7, 1870, that he had valued the same as set forth on his said return, $1,200.</p> <p>On May 14, 1870, the Court granted a rule upon the heirs to accept or refuse the premises at the said valuation,</p> <p>And on June 18, 1870, it appearing to the Court that al,l the parties interested had had notice of said rule, and that all of them refused to take the said premises described therein at the valuation thereof, the Court made an order for the sale of the premises described above, among others, and Henry A. Bauer, who was administrator of decedent, was ordered to make the sale.</p> <p>The premises in question were sold by Henry A. Bauer on July 13, 1870, under the order of the Court, to Augustus Karstein for $1,330, and return was made to that effect July 23, 1870, to the Court, and the sale finally confirmed September 8, 1870, as follows: “Sale confirmed, security in double the amount of purchase money, Joseph. Allison.” The security was duly entered, and deed executed to the purchaser October 1, 1870. No reference occurs to the widow of John A. Bauer, either in the order of sale, the confirmation of the order, or the deed to the purchaser, and no order appears to have been made by the Court charging the widow’s interest upon the premises, or providing otherwise for its security further than as noted above. From the receipt annexed to the purchaser’ s deed, it appeared that he had paid over the whole amount of'the purchase money to the administrator. No attempt wras made to showi that the widow, had ever received any portion of it.</p> <p>The Court directed a verdict for the plaintiff, which was accordingly given for $370 78, the Court reserving the following points presented by defendants:</p> <p>First. That as Augustus Karstein was a tona fide purchaser, without notice the title to him and those under him would be good against the claim of the plaintiff.</p> <p>Second. The plaintiff, having been a party in the orphans’ court to the prayer for partition, for sale, and for confirmation of deed, and not giving actual notice of her claim, or in fact any notice sufficient to put purchasers on inquiry, is barred by her action now when other rights have intervened;</p> <p>Third. The plaintiff, having failed to make any demand within six years, is not entitled to recover.</p> <p>Fourth. That the sale having realized $1,330, the full value o£ the property, which sum was paid to the ad-, ministrators, the law will presume that in the settlement of his account in the orphans’ court, the claim of the widow’s dower was secured out of the purchase money.</p> <p>If, by her tacit consent in allowing the payment of the full amount of the purchase money to the administrator, and its subsequent division between her other children and himself, the defendant in error induced the purchaser to believe she had abandoned her Interest in- the land, equity would, at least, hold her to a prompt assertion and pursuit of her claim, and should hold her failure for ten years, and until after the purchaser’s death, to assert her claim, such laches as to now estop her.</p> <p>It has been repeatedly held that a widow, in relation to her rights in her deceased husband’s estate, being a femme sole, is subject to the application of all the principles of equitable estoppel: Carr ». Wallace, 7 Watts, 394; Simpson’s Appeal, 8 Barr, 199 ; Troxell v. Iron Co., 6 Wright, 513; Ayres «. Wattson, 7 P. F. Smith, 360; Taggart’s Appeal, Leg. Int., Dec. 22, 1882.</p> <p>As the plaintiffs in error interpret the rulings in Schall’s Appeal, 4 Wright, 170; Horam’s Estate, 9 P. F. Smith, 152; Richards®. Rote, 18 ibid., 251; Vensel’sAppeal, 27 ibid, 71; and Dickinson v. Beyer, 6 N orris, 274, if the widow was a party to the proceedings in partition of her deceased husband’s estate, or had notice thereof, her interest in the land is divested by the subsequent sale under the order of the orphans’ court, and her right of dower is transferred in such a case from the land to the fund realized from the sale, and her right of action should be, if at all, against the administrator or his sureties, to account to her for the use during her life of the one third of the proceeds of the sale, he having, with her consent, received the identical fund now in dispute.</p> <p>The defendant in error, by the statutes, had no right to the money to remain on the property in the hands of the purchaser to secure her interest, and could not object to the partition, could do nothing but demand from the purchaser that which the law gave her — the interest for life upon one third of the purchase money, to be paid by the purchaser and those holding the property. The doctrine of estoppel does not apply to such a case. The purchase money in the hands of Bauer, who wras ordered by the court to make the sale, could, in law, be considered only as the portion legally payable to him, that is, the portion then payable to the heirs — no part of it could go to the widow upon distribution.</p>

Appeal of George L. Littlefield and Alfred H. Little-field, trading as Littlefield Brothers, from a decree of the Court of Common Pleas, No. 2, of Philadelphia County. This, in the court below, was a contest between Little-field Brothers and Charity Harned, judgment creditors of Lewis M. Harned, who was the husband of Charity Harned, as to the distribution of a fund in court produced by a sheriff’s sale of Harned’s real estate under his wife’s execution.

2, of Philadelphia County. Summons covenant sur ground-rent issued. February 8, 1881, by James R. Gates against Hugh. McConnel to recover arrears of ground-rent. By agreement in writing, tlie case was submitted to Walter D. Allen, as referee, under the act of 14th May, 1874.

<p>1. Where a receiver at the solicitation of both partners, and acting in good faith and under the advice of counsel, continued a business at a loss, and being prevented by the active interference of the partners from effecting a sale of machinery and a patent, stored and insured the machinery at a considerable, though not unreasonable, expense, he ought not to be surcharged with the expense of continuing the business or the amount expended for storage and insurance.</p> <p>2. Where a receiver collected all of the accounts of the firm that he could, took the accounts to a reliable collection agency, and instructed them to collect all that were available, and they, refusing some of them as uncollectible, reported to him, from time to time, as to the remainder, and he charged himself with the proceeds reported, he ought not to be charged with the alleged value of the accounts.</p> <p>3. He ought not to be surcharged with such accounts where there is nothing to determine their value.</p> <p>4. Such a receiver is entitled to a reasonable compensation.</p>

<p>1. A master Who has found that there was nothing in the testimony to sustain the bill as it was filed should report a decree dismissing it.</p> <p>2. The master has no authority to go outside of the bill and raise and decide questions which were not presented by the pleadings, upon which the parties were never heard by testimony or by counsel, and report a decree entirely foreign to the whole subject of the contention before him.</p> <p>3. A testator devised his real estate to his widow for life, with remainder to his son. The son, who was a man of drinking habits, but whose mental capacity was not impaired, afterwards became indebted to his mother for borrowed money, and executed to a third person for her a bond and mortgage upon the real estate for $4,000, in which the mother joined. The mortgage was then immediately assigned to the mother. The real estate was afterwards sold by the sheriff under foreclosure proceedings upon the mortgage, and was bought in for her benefit. The mother, as executrix of testator, was adjudged to have about $2,300 in her hands, to which the son would be entitled upon her death, and the orphans’ court had ordered her to enter security therefor, in default of which she was discharged as executrix. A bill in equity was filed by the son’s widow against the widow of testator and the assignee of the mortgage, praying for an injunction to restrain the sheriff from delivering a deed for the property, and for the cancellation of the mortgage, on the ground that it was given to defraud her of her dower in the land. The bill contained.no prayer for general relief, and the master found that there was no fraud in the giving of the mortgage: The court below ordered that the sale under the judgment on the mortgage should be set aside, that the mortgage should only be held as security for $2,000, and that the plaintiff should be restrained from issuing any further execution on the judgment until the entry of security by her for the proper application of the proceeds of the execution, &c. Held, to be error, the court having no jurisdiction in this proceeding to make any part of the decree. Held, further, that such a decree should not be made in a proceeding which did not raise such questions, and as to which the parties were never heard.</p> <p>4. The court in which the judgment on the mortgage was obtained has full power to determine how mucli was due on the mortgage.</p> <p>5. The orphans’ court is the'proper tribunal to make whatever order may be necessary to enforce its own decrees.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia/ County. ' •</p> <p>Case by James W. Lauderbach against The People’s Passenger Railway Company to recover damages for personal injuries. Plea, not guilty.</p> <p>On the trial in the court below, before Elcock, J., the following facts appeared:</p> <p>On Callowhill street, west of Twenty-third street in the city of Philadelphia, there are two passenger railway tracks, one owned and used by the Hestonville, Mantua and Fairmount Passenger Railway Company (commonly called the Race and Vine Street Company) and the other by the People’s Passenger Railway Company. The Hestonville company’s cars run west, and the cars of .the defendant company run east. West of Twenty-third street the tracks of these two railway companies are laid parallel and near together for a short distance. At the narrowest point the tracks are 11£ inches apart, and the cars moving in opposite directions could not pass at this point without the eaves of one rubbing and scraping the other.</p> <p>On July 26, 1880, plaintiff was a passenger in a car of the Hestonville company, which was proceeding out Callowhill street west of Twenty-third street. He was sitting sideways at the rear end of the car, with his left elbow-resting on the window sill and his hand up, grasping or resting against the upright window frame. The plaintiff testified that “the ends of my fingers might have been approaching towards the outside, but the thumb and hand were inside.”</p> <p>On cross-examination he said: “I can’t tell whether the ends of my fingers reached the outside or not.” * * “I am confident they did not project. No part of my hand or arm was outside.” * * * “I say they were inside, but they might have reached towards the outside.”</p> <p>William Osner testified that “his fingers were on the sill, with his hand resting on the upright — on the platform of this sill resting. He had to clasp with his thumb inside, and about that much outside,” (indicating.) Upon being recalled, witness said : “ It would not put them out, I don’t think, three eighths of an inch.”</p> <p>The car in which plaintiff was riding stopped to take on a passenger just before reaching the place where the tracks most nearly approach each other. Defendant’s car was standing on the other side of the narrow place. The driver of the car in which plaintiff was riding was called by plaintiff, and testified that the defendant’s car started after he had got into the narrow place. 1</p> <p>In passing, the two cars scraped against each other, the eaves of defendant’s car leaving a scratch under the eaves of the other from the third window clear back. The jar or shock of the collision threw plaintiff’s hand out, which was caught between the two cars and drawn further out, and the arm received several blows from the window frames of the passing car, breaking it above the elbow.</p> <p>Plaintiff was an engraver ; and, by reason of this accident, was unable to do any work until six months after-wards. His arm is still weak, and he is unable to steadily apply himself to his work as he had done before the accident occurred.</p> <p>The testimony was that he was a very skillful engraver; that he was able to earn from his own personal labor $5,000 per annum ; that from his personal labor between July, 1880, and July, 1881, he derived only $600 ; that his loss in his general business, because of his inability to attend to it, was $1,800 ; and that his expenses for medical attendance, &c,, amounted to $500 or more.</p> <p>Plaintiff’s counsel asked the plaintiff the following question:</p> <p>Q. Hid the accident cause any loss of income up to the present time, and if so, please state what income yon lost thereby. [Objected to. Objection overruled. Exception for defendant.]</p> <p>(First assignment of error.)</p> <p>A. A very considerable loss. I will tell it in my own way. I can tell you by telling what my income has been from my book before the accident, and what it has been since.</p> <p>Q. Tell us without giving it from your books if they don’t want to see them, and don’t want you to state it. Tell us what income you have lost in consequence of this accident up to the present time.</p> <p>A. I have made as high as $10,500 in my business. I have averaged, say in five years, an income of over $7,500. My personal labor is worth $5,000 a year. After the accident — I count five months, say the accident occurred on the 26th of July, I say from the 31st of July, five months, I made nothing. The year from the 31st of July, 1880, to the 31st of July, 1881, I made $600.</p> <p>Q. Was that out of your own labor?</p> <p>A. My own labor.</p> <p>Q. Instead of $5,000, which you would have made ?</p> <p>A. Yes, sir.</p> <p>Also the further questions:.</p> <p>Q. Had you any contract or engagement for engraving on hand which you were unable to perform in consequence of this accident, or not ?</p> <p>(Objected to. Objection overruled. Exception for defendant.)</p> <p>(Second assignment of error.)</p> <p>A. Yes, sir; I had a running contract, a very valuable one, all the work I could do for I). Appleton & Co.,.New York, on a work entitled, “Picturesque Palestine;” all I could possibly do. All my work is of a personal character. I have to handle all my own work myself.</p> <p>Q. That was a running contract. Were you able to carry that out ?</p> <p>A. I did, by doing a diminished quantity. I kept it going, of course. I aid the best I could. When I was home I directed my business as well as I could, and when I got to the office.</p> <p>Q. Did you lose anything in that contract by reason of this accident ? If so, how much %</p> <p>A. That involved the largest amount of work I was doing for two years. That work lasted for fully two years. I was engaged in it at the time of the accident and fully two years afterwards all I could do.</p> <p>And the further question:</p> <p>Q. What was your loss by reason of the interference of that contract ?</p> <p>(Objected to. Objection overruled. Exception for defendant.)</p> <p>(Third assignment of error.)</p> <p>A. Over $5,000 the one year — for one year over $5,000.</p> <p>No witnesses were called for the defendant. The Court thereupon charged the jury, inter alia, as follows :</p> <p>“This accident is said to have occurred at that particular point by collision or rubbing together of the two cars, one on each of these roads. The plaintiff, you will understand, was a passenger, who got on at Third and Vine streets and rode out to this particular point in the car. He was seated on the end seat on the south side of the car, with his left hand against the window sill, or against the window upright, or the division between the two windows of the car. His hand, he says, was in the position with his thumb inside and his hand resting against the upright. [One of the witnesses testified that his fingers were projecting — the tips of his fingers were projecting on the outside of the car — and just at that point I want to call your attention to the fact as to whether it was possible for that man to see the condition of the lingers at that time. He says that he was on the front platform of the car with the driver, and that seeing the car approaching this narrow point — either for that or for the purpose of looking at a lady and gentlemen who were inside of the car, and it is not very clear what his object was — he went to the center of the car, and that by that means he could observe the condition of the man’s hand against the upright. Now, whether any one standing in the center of the car could observe whether the man’s fingers were outside or not is a question which I leave to you in connection with the balance of the case — whether it was possible for him to see that.] * * * *</p> <p>In order that you may reach a conclusion, it is proper for you to consider the position of these cars. There was no rule or regulation of these companies — at least in evidence — going, to show by what mode this narrow point was to be crossed. [There was no rule compelling them to stop at any given point, or to regulate their passing that point in any mode whatever. It is, therefore, required by the law that it shall be done in an ordinary, reasonable, and prudent manner. Now, what that was you must judge from the evidence; and as you judge from the evidence you will settle the degree of negligence in this case, and which party is accountable.] * * *</p> <p>[If the Race and Yine Street car had started and got to such a point on that narrow passage-way that it would have been likely that the car of the People’s Passenger Railway would have struck or touched -the car which was then going north towards Fairmount — the Race and Yine Street car — then it would be negligence on the part of the defendant’s driver to run his car, or start it at that time, because it would not be reasonable and prudent care in a man to drive his car against the car of any other company, or against the Race and Yine Street car, if it had'got to that point.] Hence, if the car of the People’s Passenger Railway had started first, and before the Race and Yine Street car had started, then it would have been the duty of the Race and Yine Street car to have pulled up and have allowed the other one to pass along. It would not have been reasonable and prudent care, nor would it have been that extraordinary degree of care required of the carrier.of a passenger, to go to such a point as that and run the risk of passing with his car with passengers in it, when he knew the other one had started. Therefore, the real point in the case comes down to that — as to which of the parties was responsible for that negligence.</p> <p>The law of the road, even driving in a wagon, is that if a man gets in a narrow cut or passage-way, the parry approaching him must stop in order to let him out. In the same way it would require a man who was approaching such a dangerous point, in such a narrow cut or passageway, to observe ordinary, and even, in carrying passengers, extraordinary care in reaching such a point and passing it. [Therefore, you are to deduce from the evidence, and to weigh the evidence pretty closely, as to that little point of time, and that little point of space, in which these two cars passed each other, to see -whose duty it was to stop before they got there. Whoever’s duty it was to stop would be guilty of negligence if they passed the point, and that is the degree of care which would be required of both these parties, and you must say now, under the circumstances and under the evidence in this case, which of these parties was guilty of that negligence.] And I say to you, if the Race and Yine Street car was guilty of negligence in going on as they did — guilty of that want of extraordinary care in carrying this plaintiff —then the.plaintiff cannot recover of the People’s Railway.</p> <p>On the other hand, if the People’s car started in an improper time and in an improper manner, and after the car of the Race and Yine Street road had got so near, or into this narrow passage-way, then it would be such a want of ordinary care as would make them liable for the negligence.</p> <p>It gets down, therefore, to that particular narrow point, and you must weigh all the testimony in the case in considering this question. You will take not only the testimony of the plaintiff and weigh it carefully as to the probabilities of his hand being in the position in which it was, and as to his position, and the cause of the accident, [but you will also- examine the plan of this road, and say, in connection with all the other evidence, (because that is part of the evidence,) what the rule of safety would be in passing this point. You are to make it, because there is no other rule or regulation of the companies or parties here by which it can be made.] * * * *</p> <p>[Therefore, I leave it to you to say whether, under the evidence in this case, the plaintiff, by his act of putting his hands or fingers in this way, if he did so, was guilty of contributory negligence.] If he was, and that contributory negligence was the proximate cause of this injury, then he cannot recover. You will understand by that that the proximate cause of the injury is the direct cause, and not a remote one, because if it was only a condition of the accident, and not the direct or proximate cause of it, then that would not affect the rule at all, and he would be entitled to recover, because a .remote contribution to the injury would not entitle the defendants to avail themselves of the rule of contributory negligence.</p> <p>Now, as I have said to you, the measure of duty on the part of the passenger is that of ordinary and reasonable care on his part. He is bound to exercise ordinary and reasonable care about the way in which he manages his person in the car. If he is guilty of want of reasonable arid prudent care — that is, such as a prudent man would take under ordinary circumstances, that would be contributory negligence, and would come within the ground of proximate cause, and he could not recover. [You will, therefore, say whether under, all the circumstances, a reasonable and prudent man would have placed his hand in this condition where it would be liable to be struck by passing vehicles, or in consequence of a collision with anything upon the road, and that would be the ground upon which you approach the doctrine of proximate cause.] * * * * * *</p> <p>If you find in favor of the plaintiff, the rule of. damages will be that he would be entitled to recover what you shall think would be a proper reward to him for the pain and suffering which he has endured in consequence of this accident, and you would add to that the expenses which he has been put to in consequence of endeavoring to be cured of the injury which he suffered — that is, medical attendance, attendants or nurses, and medicine and other things which he was obliged to use while being cured of the injury which he suffered. Thirdly, you can add to it, if you find it so, the loss occasioned by the individual loss of his ordinary labor. You are not entitled to give him what he might make by speculative business, or what he might make in consequence of contracts, or things which he might have received, or anything else of that nature, but you are to give him what was actually suffered by the loss of his individual ordinary labor — his regular labor or profession.</p> <p>The defendants are not liable for anything resulting from his nervous condition, or his prior ill-health, or any weakness of his constitution which was in existence, prior to or at the time of the accident. He cannot recover for anything consequent upon that.</p> <p>There is no evidence in this case, I think, going to show that this was a permanent injury. In,-fact he admits himself that his arm is as good now as it ever was, and I do not think there is any evidence by the physicians and surgeons on either side of the case going to show that it was anything more than a temporary injury, and the pain and suffering were merely temporary; that nothing followed, unless you find that the injury produced a nervous shock and nervous prostration which had not existed prior to the time of the accident. If it had not existed, and this injury produced it, that would be one of the results, and he would be entitled to recover for the loss produced by that nervous prostration and that continued weakness of his system, but not if there had existed before, or that he was.liable to ill-health, or anything of that kind prior to the time of the accident. Your, damages, therefore, should not be speculative at all. They-should be simply compensation for the injury which has been suffered within the three heads that I have laid down to you: First, as to the pain and suffering; second, as to the expenses ; and thirdly, as to the loss of business, within the rules which I have stated.”</p> <p>Defendants’ counsel submitted certain points for charge, which, with the answers thereto, are, inter alia, as follows :</p> <p>{'■‘‘Fifth. If the plaintiff sat with his arm on the sill of the window, and in consequence, when the cars rubbed against each other, it was protruded from the window and was injured, he was guilty of contributory negligence, and he cannot recover.”]</p> <p>I decline to say that, as a question of law.</p> <p>(Twelfth assignment of error.)</p> <p>{“Seventh. If the plaintiff sat with his arm on the sill of the window, and suffered unconsciously his arm to slip out of the window, and he was injured, he cannot recover.”]</p> <p>I decline to say that, unless you find it the proximate cause of the injury.”</p> <p>(Fourteenth assignment of error.)</p> <p>{“Eighth. If the position of the arm on the window sill was the cause of the injury, or contributed to it, plaintiff cannot recover, and the verdict should .be for defendant.” J -</p> <p>I affirm that, if it was the proximate cause of the injury.</p> <p>(Fifteenth assignment of error.)</p> <p>{Tenth. If the evidence shows contributory negligence on the part of the plaintiff he cannot recover, and the verdict should be for defendant.]</p> <p>I decline that unless it was the proximate cause of the injury. If the evidence shows that contributory negligence was the proximate cause of the injury then the plaintiff cannot recover.</p> <p>(Seventeenth assignment of error.)</p> <p>May 15, 1883, verdict for plaintiff for $9,000, upon which judgment was afterwards entered.</p> <p>Defendant then took out a writ of error, assigning, inter alia, the errors above set forth, and those parts of the charge inclosed between brackets.</p> <p>There is no evidence of a collision of sufficient violence to throw plaintiff’s arm out of the window. Such an accident could only occur in case of exposure of the person out of the window, in consequence of which the part exposed would be injured. The position of the arm was the cause of the accident, and amounted to contributory negligence : Pittsburgh and Connellsville Railroad Company v. McClurg,6P. F. Sm., 295; Railroad Company «.Hoosey, 3 Out., 499. Where the position is one of risk, and leads to the accident, it is contributory negligence. There can be no difference in exposing one’s person to danger whether in a car or out of it: Railroad Company v. Langdon, 1 Am. & Eng., R. R. Cas., 95; Downey v. Hendrie, 8 Id., 387; Todd v. R. R. Co., 7 Allen, 207; R. R. Co. v. Rutherford, 7 Am. L. Reg., N. S., 477; Ward v. Central Park R. R., 1 Jones & Spencer, 396; Clark *. R. R., 36 N. Y., 135; Solomon v. Central Park Co., 1 Sweeney, 301; Baxter v. R. R. Co., 3 Robt., 510; Willis v. R. R. Co., 32 Barb., 399 ; Hickey v. R. R. Co., 14 Allen-, 429 ; Quinn v. R. R. Co., 51 111., 498 ; Baltimore R. R. Co. v. Wilkinson, 30 Md., 225; R. R. Co. •». Clemmons, 55 Texas, 88; R. R. Co. r>. Jones, 5 Otto, 443.</p> <p>As. plaintiff was not a passenger on defendants’ car, there is no presumption of negligence. He must prove it affirmatively: Reading v. Hummell, 8 Wr., 377; Baker v. Fehr, 10 W. N. C., 57; Gfoshorn ». Smith, 8 Id., 290; R. R. Co. v. Schertle, 1 Out., 457. The charge of the Court was erroneous in that it substantially left to the jury to determine what in law constituted negligence: Heil v. R. R. Co.. 5 W. N. C., 93.</p> <p>The mere fact that the cars rubbed each other in passing was not negligence. There was no duty on the part of the defendant to stop, there being no danger to passengers unless they placed themselves in exposed positions : Heil ». R. R. Co., supra.</p> <p>Where an injury occurs in consequence of mutual negligence of the two companies, the liability must be borne by the carrier: Lockhart v. Lichtenthaler, 10 Wr., 151; R. R. Co. v. Boyer, 1 Out., 100.</p> <p>Speculation about business, and speculation upon contracts in that business, cannot be made the basis of plaintiff’s claim for damages.</p> <p>The claim for damages was not speculative, because if the accident had not occurred, the plaintiff would have earned a certain income from a special contract. The rule is compensation. Will the equivalent of his personal labor compensate a man who, at the time he was injured, had on hand a contract, even though he would have required the assistance of his workmen, from which he would have derived a large profit which he was compelled to relinquish? In this case, however, the contract was for personal labor. It was gross negligence for a car driver to start his car when a collision with a car so placed that it could not escape being struck was inevitable. The jury found that' the position of plaintiff’s fingers did not contribute to the injury. There is no relevancy in the citations of cases which hold that a passenger, permitting his hand or arm to project from a window, who is struck by some outside object, cannot recover. What possible injury ought a passenger anticipate from his fingers being clasped around the window frame?</p> <p>The Court, in charging the jury that if the position of the fingers was not the direct or proximate cause of the accident, it was not contributory negligence, followed Boudrou n. Passenger Railway Company, 92 Penna , 480; Todd v. R. R. Co., 7 Allen, 207.</p> <p>There could have been no rubbing of the cars together without negligence. As there was no evidence that it was the duty of one of the parties to stop, it was certainly for the jury to say which of them was negligent; and the party negligent in passing was the one to be held liable. The negligent driving, and not the position of the hand, caused the accident.</p>

1, of Philadelphia County. Case by Chandler P. Wainwright and Willis T. Bryant, copartners, trading as Wainwright & Bryant, against James Peters.

Appeal of Ann Storey, widow, and executrix of the last will and testament of John Storey, deceased, from the decree of the orphans’ court of Philadelphia County.

1, of Philadelphia County. Assumpsit by Mary Elliott, William J. Elliott, Catharine C. Elliott, Mary E. Elliott, and Sarah. Held: could be set up to defeat a recovery by the plaintiff. “That the matters of defense., if admissible under the pleadings, is barred by the Statute of'Limitations, received no answer at the hands of the defendant. “The action is grounded on a payment by the legal plaintiff, acting in his capacity as sheriff, to the defendant of a…

<p>Appeal of William Devoo Wilson from a decree of the Orphans’ Court of Philadelphia County upon the final account of Elwood Johnson, administrator of the estate of i Franklin S. Wilson, deceased.</p> <p>The facts fully appear in the following adjudication of the auditing judge, Penrose :</p> <p>“The decedent died September 12,1871, intestate, leaving a widow, Mrs. Agnes Wilson, and a son, William Devoo Wilson, then a minor, who has since, viz: June 20, 1878, become of age.</p> <p>Under a former account, as appears by the adjudication filed May 14, 1879, distribution to the amount of $97,-187 48 was made, viz: to the widow, one third, $32,395-83, and to the guardian of the son and to. the son himself, or his attorney in fact, two thirds, $64,791 65.</p> <p>The present account shows a balance in the hands of the accountant, composed as there stated, of . . $6,436 35 which sum, composed as aforesaid—</p> <p>less clerk’s fees,............$18 50</p> <p>and fees to Messrs. Dickson and Dale, . 200 00</p> <p>- 2Í8 50</p> <p>viz:,....................$6,217 85 subject to payments heretofore made on account (viz : To Mrs. Wilson, $2,070, and to W. Devoo Wilson, $973 98) is awarded to Mrs. Agnes Wilson, widow of decedent, and to W. Devoo Wilson, son of decedent, in the proportions to which they are respectively entitled under* the provisions of the intestate laws.</p> <p>Credit is claimed in_fhe account for $15,391 52 — “balance on first account uncollectible.” The credit thus claimed is for the balance of the appraised value of a bond and warrant of attorney given to the accountant December 1, 1871, by J. Milton Baab, Seth Thomas, and William M. Purnell, the purchasers of the interest of the decedent in the firm of Pockhill & Wilson.</p> <p>The credit was excepted to on the ground,. First, that the transaction was one which the accountant was not authorized to enter into ; and, Second, that the loss arose from his failure to enforce payment from the debtors in accordance with the terms of the instrument.</p> <p>The firm of Rockhill & Wilson, clothiers, was composed of the decedent and Daniel H. Rockhill, his wife’s father. Their business, which was principally that of the manufacture and sale of ready-made clothing, 603 and 605 Chestnut street, Philadelphia, had been carried on for many years. During the Rebellion, they made lai’ge profits upon clothing contracts, and until the fall of 1867, they were able, with the capital which they had at their command, to make their purchases for cash or upon thirty days’ credit. About the time last mentioned, the printing and publishing house of H. G-. Leisenring failed, owing them $220,000, of which they afterwards recovered a dividend of but 37|- per cent. In consequence of their loss, they were no longer able to do a cash business, but were always afterwards compelled to give notes and to borrow large sums of money, pledging their private securities and-property as collateral.'</p> <p>In June, 1871, Mr. Wilson determined to withdraw from the firm and take an interest in the printing house formerly carried on by H. G. Leisenring. With this object in view, and with the consent of his partner, Mr. Rockhill, he offered his interest at the value as shown by the books of the firm, after taking an account of stock, to J. Milton Raab, Seth Thomas, and William M. Purnell. These gentlemen, he was aware, were entirely without means, but they had been in the employ of the house for many years as salesmen, &c., &c., and possessed his entire confidence as men of integrity and business capacity; and he was willing to accept the risk of their inability to pay from their future earnings. His offer was accepted, and on the 1st of July. 1871, an account of stock having been taken, his share of the net assets appeared to be $27,022 02.</p> <p>A delay in the execution of the contract was occasioned by a suggestion of his counsel, Mr. Bullitt, with regard to the liability for future debts which he would incur if the name of Rockhill & Wilson should continue to be used after his retirement from the firm, and by his subsequent absence from the city during the summer vacation. He returned on Saturday, September 9, 1871; was in his office on Monday, the 11th, and died very suddenly and unexpectedly at three o’clock on the following morning.</p> <p>Letters of administration were granted to tíre accountant and Mrs. Agnes Wilson; and on the 1st December, 1871, with the approval of Mrs. Wilson and the advice of Mr. Rockhill and of Mr. Bullitt, Mr. Wilson’s counsel, and in performance of the contract made in the lifetime of the decedent, he sold to Messrs. Raab, Thomas, and Purnell the interest of the estate in the firm of Rockhill & Wilson for the price agreed upon — $27,022 02 — the purchasers giving their bond with warrant of attorney for that sum, payable in yearly instalments of not less than $5,000 per annum, until the whole should be fully paid off — with interest at six per cent.; with the proviso that ‘if at any ^ime default shall be made in the payment of interest for the space of thirty days after the same shall fall due, then and in such case the whole principal debt aforesaid shall, at the option of the said Ellwood Johnson, administrator aforesaid,’ &c., ‘become due and payable immediately, and payment of said principal, and all interest thereon may be enforced and recovered at once, anything to the contrary notwithstanding.’</p> <p>The bill of sale or deed of transfer which was signed by the accountant and the purchasers contained a copy of the ‘Inventory of the assets, stock and fixtures of Rock-hill & Wilson, Nos. 603 and 605 Chestnut street, taken July 1, 1871,’ in which the stock of ready-made clothing was estimated at $61,569 ; stock of uncut goods at $26,-495 23 ; bills and accounts due the firm, $52,763 84; cash on hand, $8,439 90; fixtures, $2,500 ; making a total of,...................$151,767 97 The liabilities were stated to be, ..... 97,723 94</p> <p>Leaving a surplus of........... $54,044 03</p> <p>and the shares of the partners :</p> <p>Daniel H. Rockhill, one half, $27,022 01</p> <p>Franklin S. Wilson, “ 27,022 02</p> <p>The instrument further recited the agreement of Mr. Wilson to make the sale, the taking of the account of stock July 1, 1871, in pursuance of it, and the failure to consummate the sale in consequence of his death</p> <p>Mrs. Wilson’s approval was in writing at the foot of the paper : ‘I approve of the above agreement,’ signed, Agnes Wilson.</p> <p>When the sale was thus made, the accountant was aware, as the decedent was when lie agreed to make it, that the ability of the purchasers to pay depended upon their success in the business. But apart from the fact of the contract and of the probability of an action for breach had he refused to carry it out, an unsettled interest in a partnership was a very difficult asset to realize upon. A sale in the market would probably have been impracticable, except at a ruinous sacrifice, if, indeed, it could have been made at all; and there remained, therefore, only the tedious, expensive, and uncertain method of proceeding for an account with the surviving partner. Such an account, it is probable from the evidence,, would have resulted in the loss of the entire interest, with, perhaps, the additional loss of valuable assets held by creditors on collateral for loans to the firm as stated hereafter. Mr. Allen, the senior member of the firm of Allen, Lane & Scott, who for many years had been the book-keeper and financial manager of Rockhill & Wilson, leaving them at the time of the Leisenring failure, in order to protect their interests by accepting the position of assignee for creditors, testified that from his knowledge of financial affairs at the time of the death of Mr. Wilson, he was of opinion that a forced closing out of the business would, by reason of the necessary sacrifice of the stock of ready-made clothing and the inability to made speedy collections of outstanding accounts, have resulted in the insolvency of the firm.</p> <p>The fact that the decedent, with the full knowledge of the circumstances of the purchasers, had fixed the terms of purchase, furnished the most convincing proof that the sale was an advantageous one for the interests of his estate, while, in addition to this, the widow desired it, and her "father, the grandfather of the only other distributee, advised that it should be made. Under the circumstances, the auditing judge is clearly of opinion that the act of the accountant in consummating the sale was entirely proper.</p> <p>The interest on the bond was punctually paid each half year to July, 1876. A single instalment of principal, $5,000, was paid in August, 1874. Payment was from time to time demanded by the accountant, but, except in the instance mentioned, he was always informed by Mr. Rockhill while he lived, (he being the financial member and chief manager of the firm,) that there were not the means with which to make it. Whether under the terms of the instrument so long as the interest was regularly paid the entire principal could be called for when default was made in the payment of an instalment of principal, is far from clear ; but conceding that it could be, the only method of enforcing it would have been a levy upon the interest of the debtors in the firm, and from this nothing could have been realized until a settlement of accounts and a payment of firm liabilities. A forced sale of the stock of the concern might for the reasons already men-' tioned, have resulted in the insolvency of the firm, and a consequent loss of the interest of the separate members. Mr. Rockhill was the father of Mrs. Wilson, and naturally interested in having everything secured for her that could be, and the accountant had the right to place confidence in his representations with reference to the affairs of the firm.</p> <p>There was another reason which made it necessary to proceed with great caution in compelling a closing up of the business. There were assets belonging to the separate estate of the decedent which had been pledged in his lifetime for the indebtedness of the firm.' These assets were $10,000 Steubenville and Indiana bonds, $7,500 Preston Coal Company bonds, $5,000 West Pennsylvania bonds, amounting in all to $22,500. They were still held by the creditors of the firm, and for this reason had been valued by the appraisers of the decedent’s estate at nothing, and if the firm should be driven to insolvency they would be lost altogether. By the course taken, they were all saved and their full value realized to the estate.</p> <p>It was the expectation of Mr. Rockhill, and of Messrs. Raab, Thomas, and Purnell, and of business men generally, that trade would revive and that more prosperous times were at hand. , The accountant was himself a merchant of many years’ experience, and his judgment was that a resort to extreme measures would be dangerous, and that the safer course was to afford every chance to the debtors.</p> <p>Mr. Rockhill died in July, 1876, having, by a codicil to his will, dated May 12, 1876, appointed the accountant and Israel H. Johnson his executors, and authorizing them to continue the business of Rockhill & Wilson. The fact of this appointment, and the entire confidence in the integrity and business capacity of the accountant thus indicated, shows that at least one most competent to judge must have considered the course taken with regard to the interests of the Wilson estate as proper and judicious.</p> <p>According to the balance-sheet of December 31, 1876, the apparent assets of the firm amounted to $153,721 45, and the liabilities to $83,547 36, showing an apparent surplus of $70,174 09. Among these assets, however, were included a debt of J. B. Rockhill of $7,092- 33, real estate in Camden, .$5,556 21, and sundry small accounts amounting to- $22,000, all of which ultimately proved to be of no value. The stock of clothing on hand was estimated at $60,805 20, while, had it been sold in bulk or at auction, it would, according to the testimony, probably not have been sold for half that sum ; so that, after deducting the expense of liquidation, the amount left to represent the interest of Raab, Thomas and Purnell would have been lit-tie or nothing. As surviving partners, they had the right to the management and winding up of the business. They were still hopeful of ultimate success, though as yet they had paid but a single instalment of their debt, and had drawn out simply their living expenses, ($2,000 per annum each,) and they desired to continue in the business. They had many years’ experience, and were skilful salesmen, thoroughly understanding how to dispose of the stock on hand iii the most advantageous manner. They were still without means, except what stood to their credit on the books of the firm, and a levy on their interest would have produced nothing. It is true the accountant could have bought it in at sheriff’s sale, and thus, as executor of Mr. Rockliill’s estate and administrator of Mr. Wilson’s estate, have had the entire control of the business ; but by doing this he wmuld have deprived both estates of the advantage to be had from their aid in the final winding up, and would have brought on a forced sale of-the stock.</p> <p>The hoped-for improvement in business never came. Each year affairs grew worse arid worse. Expenses were curtailed and forces reduced, and finally, in March, 1880, judgment was entered on the warrant of attorney accompanying the bond of Messrs. Raab, Thomas, and Purnell, and a levy made on their interest, which was bought in by the accountant at five dollars, and not enough was afterwards realized from the sale of the assets to pay the debts of the firm.</p> <p>The liability of the accountant depends, not upon his omission to demonstrate by levy and execution the worthlessness of the bond, nor upon' the fact that in the light of subsequent events it might appear that the course taken was not the best one. The question is, did he act with reasonable prudence Í Infallibility is not to be expected, and honest mistakes of judgment on the part of trustees are not punished by making them personally responsible for the consequences. In the absence of gross misconduct, or gross negligence, a trustee will not be surcharged with moneys which never came into his hands. (Chambersburg Saving'Fund Association’s Appeal, 26 Smith, 203 ; Neff’s Appeal, 7 Smith, 91; Stern’s Appeal, 14 Norris, 504.) The good faith of the accountant in the present case was conceded, and there is no evidence whatever of gross negligence. His experience as a business man had taught him that the solvency of a merchant did not rest simply upon the ownership of assets to an amount very considerably in excess of his liabilities, and that unless they could be converted into' cash as the obligations matured, there was a legal insolvency of which an actual insolvency would be the natural, if not the necessary, consequence. In all of the balance-sheets that were exhibited in evidence for the purpose of showing the solvency of the firm of Rockhill & Wilson, and the existence of a balance to the credit of Messrs. Raab, Thomas, and Purnell, the chief assets were the stock of clothing on hand estimated at cost, and the outstanding accounts due the firm. Both of these were very uncertain quantities, not at all to be relied on in case of emergency. Debtors might prove unable or unwilling to pay, and legal proceedings might be required to enforce payment after long delays, while a stock of ready-made clothing, consisting for the most part of articles remaining unsold at the end of the season, many of them of antiquated style and material, and all of them becoming daily of less value by reason of change of fashion, if forced into the market, could manifestly be sold only at prices far below their original cost, and the larger the stock, the greater necessarily would be the depreciation. So that, while for the purposes of this case the fact may be conceded to be otherwise, there is strong reason, under the evidence, to believe that had the affairs of the firm at any time after July, 1871, been brought to a forced settlement, little or nothing would have remained after the payment of the joint obligations, if, indeed, there would have been enough for even this purpose.</p> <p>If, therefore, the question is to be regarded as still an. open one, the exceptions must, in the opinion of the auditing judge, be overruled.</p> <p>But is it an open one ?</p> <p>It has already been stated that a previous account was filed and duly adjudicated May 14, 1879. The account was a joint one, filed by the present accountant and his co-administrator, Mrs. Agnes Wilson. In it the accountants were charged with the appraised value of the bond taken for the interest of the decedent in the firm of Rock-hill & AVilson, with the semi-annual payments of interest to July, 1876, and with the $5,000 paid on account of principal in August, 1874 ; and credit was taken for the balance remaining unpaid, at its appraised value, as an uncollected asset. Mrs. AVilson joined in the affidavit as to the justice of the account, both in matters of charge and discharge, and both she and William Devoo AVilson, who had become of age in the preceding June, participated, without a word of objection to anything in the account, in the distribution awarded. So far as Mrs. Wilson was concerned, she was already estopped, by her written approval of the sale at the time it Was made, from afterwards questioning its propriety, and by her participation in and affidavit to the correctness of the account, from alleging that the credit claimed for the uncollected balance due on the bond was improper. The participation of William Devoo Wilson in the distribution closed his mouth as to the original transaction, while the decree confirming the account, and thus allowing the credit, and directing that the unconverted asset should be the subject of future account, precluded objection, except on the ground of fraud, as to the action of the accountants with regard to the bond during the period of the account and up to the date of the decree. If, up to that time, there had been any act of negligence which had made the accountants responsible, instead of being credited with the assets remaining in their hands as the subject of a future account, the proper decree would have been that they should'be charged with the amount as cash then in their hands, and should make distribution accordingly. If there was error in the decree made, the remedy was by petition for review. Fraud is not pretended, and while the decree stands, nothing involved in it can be inquired into collaterally.</p> <p>It is not alleged that, at any time after that adjudication, it would have been possible to have collected the debt.”</p> <p>The account was confirmed nisi. The following exceptions were filed on behalf of W. D. Wilson, viz:</p> <p>First. The auditing judge erred in allowing the accountant the credit claimed by him in the account for $15,391 52, “balance of first account uncollectible.”</p> <p>Second. The auditing judge erred in- refusing to surcharge the accountant with the sum of $15,391 52, the balance in his hands from first account.</p> <p>Third. The auditing judge erred in refusing to surcharge the accountant with the sum of $15,391 52, as the value of the bond and warrant of attorney, given to him December 1, 1871, by J. Milton Eaab et al., for the purchase of the interest of Franklin-S. Wilson, deceased, in the firm of Eockhill & Wilson.</p> <p>We object to the allowance of the credit on two grounds, viz:</p> <p>First. That the accountant had no right to sell decedent’s interest in a valuable business to irresponsible parties on credit and without security.</p> <p>Second. That the loss arose from his neglect to enforce payment of the instalments from the debtors, from time to time, as they fell due.</p> <p>If an administrator, instead of winding up the business, of the testator, continues it, or involves the assets of the estate in the risk of mercantile adventure, the wisdom of his course is judged by the event, and if the result prove disastrous, he must stand the responsibility; Stern’s Appeal, 14 Norris, 504; Wood’s Estate, supra; De Haven’s Estate, 39 Leg. Int., 450; Labouchere®. Tupper, 11 Moore, P. C., 198; 3 Williams on Executors, 6 Am. Ed., 1890.</p> <p>But it is claimed by the accountants, and so ruled by the orphans’ court, that the appellant is precluded by the adjudication and confirmation of the first account from showing negligence on their part in failing, prior to ttiat time, to collect the bond.</p> <p>And that the only question open for consideration is whether the bond could have been collected after May 14, 1879, the date of the decree.</p> <p>In this it is submitted there was error. There are three elements universally necessary to constitute an estoppel by judgment:</p> <p>First. The judgment must have been valid, that is, not void.</p> <p>Second. It must have been rendered on the merits.</p> <p>Third. It must have been final: Bigelow on Estoppel, 2d Ed., 25.</p> <p>Where the real merits of the present action have not been at all inquired into in a former proceeding, issue may be taken on the fact, if the judgment be pleaded in bar: Starkie on Evidence, page 334, et notas.</p> <p>An examination of the adjudication on the first account shows that there was no judgment upon the matter in controversy here.</p> <p>• The administrators, to balance their account, stated on the credit side of it, that they had, in their hands, uncollected, the bond, the balance of the appraised value of which was $15,391 52. The court adjudicated that this balance should be the subject of a further account.</p> <p>A decree in the orphans’ court, confirming one account, is conclusive only as to the funds then distributed, and does not bind the court when another account in the same estate comes before it for adjudication: Guenther’s Appeal, 4 W. N. C., 41; Kline’s Appeal, 86 Pa., 363.</p> <p>’■ It is submitted that the sale was judicious, that nothing could have been realized at that time from a hostile winding up of the business ; that, besides destroying any chance of realizing anything from the right title and interest of the decedent, there was every reason to apprehend that the firm assets would not pay the debts, and the securities of the decedent already pledged would have been sacrificed; so that instead of realizing $97,187 48 net out of assets appraised at $82,447 68, much less than the appraisement would have been secured. The widow, by the approval of the sale, and the son, by his acceptance of his share of the portion of the purchase money actually received, ratified the sale of the interest, and both are now estopped from disputing the propriety of the original transaction.</p>

Amicable action of assumpsit by John B. Newman against William Mitchell.

Case -for slander by Charles T. Rice against Levi Refowich to recover damages for injuries sustained by reason of slanderous words uttered by Refowich in reference to Rice’s business. The plaintiff filed a declaration charging slanderous language, and the case was referred to three arbitrators before plea.

Appeal of Lewis B. Walker, assignee of Thomas H. Walker, trustee of Thomas H. Schollenberger, from a decree of the Orphans’ Court of SchuylJcill County refusing to order the conveyance of real estate held by L. P. Whitney, deceased, in his lifetime, as trustee. The facts, as they appeared from the petition and answer, were as follows: In the fall of 1873, Thomas H. Schollenberger purchased from various parties three lots of land in Schuylkill county.

Ejectment by Thomas McDowell against Rachael Jones, Margaret Jones, Mary Jones, Edward Jones, and Benjamin Jones, to recover possession of two lots of land in Bloss township, Tioga county. Held: and the property condemned. March 15, 1876, a writ of test, vend. exp. was issued, and the land levied upon was sold by the sheriff of Tioga county to Phoebe M. Thompson.

Appeal by Tlie Union National Bank, defendant, from the judgment of R. F. Brown, Esq., for $84 34 in favor of Jacob Dersham, the plaintiff. Upon the trial in the court below, before Büoiier, P. J., the following facts appeared : On May 8, 1878, the Union National Bank of Lewis-burg, Pennsylvania, closed its doors for investigation, the bank examiner taking charge on the 10 th day of May.

\ Debt by L. A. Rogers against Samuel Davidson, to recover the amount of an award rendered by arbitrators against the defendant.

Ejectment by Arthamer Ames against A. D. Scott for lot of ground situate in West Pike B.un township, containing one quarter of an acre, more or less. Plea, not guilty.

Dower by Mary Maria Linn against W. W. Smith to recover her common law dower in land bought by Smith from the assignee in bankruptcy of her husband, James Linn, Sr. At the trial, November 15, 1883, before White, J., the following facts appeared: In 1860, James Linn, Sr., was the owner of the land-in question. In that year lie married the plaintiff, who was his second wife. He had, at the time of his marriage, six grown children by his first wife.

■ Trespass on the case by John Brewer by his mother and next frie'nd, Susan Brewer, against John Scott, D. A. Stewart, Thomas Carnegie, and Andrew Carnegie, who survived William Coleman, David McCandless, and A. J. Crossland, deceased, parties trading as the £ On the trial, the following facts appeared : The plaintiff, John Brewer, was employed in March, 1880, by the defendants, who are the owners of the Monastery Coke Works, near Latrobe, Westmoreland county, to work in…

Ejectment brought February 5, 1878, by Nancy Graham, David Harbison, and Rebecca Jane, his wife, in her right, against Sybilla Craig and others, to recover a tract of land in Derry township, Westmoreland county. At the trial before Blair, P. J., the following facts appeared : In 1828, and prior thereto, Samuel Moorhead was the owner of the land in dispute. He had a daughter, Rebecca, the wife of Alexander Craig.

Error.to the Court of Common Pleas of Westmoreland County. Assumpsit by A. C. Hamilton against Abraham Greenawalt. The facts, as they appeared from the record of the court below, were as follows : The case was on the trial list in February term, 1879. On February 17, 1879, by consent in open court, all matters at variance between the parties were referred to the arbitrament of John Armstrong, whose award was to bé final, without exception or appeal.

Judgment entered December 2, 1880, by Jacob Mechling, to the use of L. B. Gongaware, against John M. Hartzell and John L. Hartzell, upon a judgment note dated April 3,1876, for $105, (including five per cent, commission.) On June 22, 1881, this judgment was opened?

Appeal of James A. Mehaffey, W. S. Patteson, and others from a decree of the Court of Common Pleas of Westmoreland County ordering a lease given by James L. Thompson and wife to James A. Mehaffey and others to be given up for the purposes of cancellation.

Appeal of J. B. Shifter, assignee of H. W. Lee, Permelia Pestaña, Elizabeth Brunges, and William Sickler, administrator of Cora Sickler, deceased, from the decree of the Orphans’ Court of Wyoming County, distributing the funds in the hands of John Lee, administrator of the estate of Daniel Lee, deceased. ■ The court below appointed B. W. Lewis, auditor to make distribution, who found, inter alia, the following-facts : That Daniel Lee died December 24 1874, leaving to survive…