Volume 4 — Sadler's Pennsylvania Reports

<p>The defense of usury is personal, and if the debtor does not choose to make it, one who is a stranger to the contract cannot.</p> <p>A terre-tenant of mortgaged premises under warranty of title cannot avail himself of the defense of usury on scire facias to foreclose the mortgage on his land given by his grantor, and he cannot be permitted to become a party defendant to the record for the purpose of setting up such defense.</p> <p>Gited in Heap v. Battle, 6 Kulp, 423.</p> <p>Note.' — For similar determinations see Stayton v. Kiddle, 114 Pa. 464, 7 Atl. 72; Keap v. Battle, 6 Kulp, 423; Osborn v. First Nat. Bank, 175 Pa. 494, 34 Atl. 858.</p>

October Term, 1886, Nos. 133, 134, W. D., before Gordon, Pans on, Trunicey, Steep,bit, and Clark, JJ. Certiorari to the Over and Terminer of Lawrence County to review a judgment of conviction on an indictment for burgdary.

October Term, 1886, No. 126, W. D., before Gordon, Paxson, Trunkey, Sterrett, and Clark, JJ. Appeal from a decree of the Orphans’ Court of Mercer County dismissing a petition to enforce the payment of a legacy charged upon land. The petition was presented by L. B. Spier, as guardian of Charles and Nancy Spier, for the payment by Samuel L. Hendrickson of the legacy charged upon 84 acres of land by the last will and testament of James B. Melvin, deceased.

<p>October Term, 1886, No. 113, W. D., before Gordon, Paxson, Trunkey, Sterrett, and Clark, JJ. Error to tbe Common Pleas of Mercer County to review a judgment on a verdict directed for plaintiff in an action of ejectment.</p> <p>This action was brought by W. C. Patterson against J.' T. Giebner to recover land in the possession of defendant.</p> <p>Both parties claim the land in controversy through Y. O. Giebner, W. C. Patterson by a deed duly executed and delivered April 23, 1884, and J. T. Giebner under a parol gift alleged to-have been made about the last of December, 1881, and a deed in pursuance thereof executed subsequent to the deed to Patterson. The plaintiff put in evidence his deed from Y. C. Giebner and rested. Defendant and his wife testified that about the last of December, 1881, Y. C. Giebner, their son, gave the property to the defendant by parol and told him to go and take possession of it, which he did April 4, 1882, and which they still hold. The defendant offered in evidence portions of seven letters written by Y. C. 'Giebner to him between January 17, 1882, and June 12, 1882, which contained the following material statements :</p> <p>“I will do just as I agreed to do when I saw you. It is for you to say if you like the situation, and if you do the house is yours. You certainly have confidence in me to that extent. You make preparations to take the house in Mercer and if you find it satisfactory, I will stand by my agreement.”</p> <p>“Certainly I am going to do just what I told you I would when I left home; that is, you move to the house, and if you like the place, I will deed the house over to you. Remember, I mean just what I say, so make your preparations to go there. . . . Prepare to take the house and lot. I am your son and will do as I agreed.”</p> <p>“Do you still intend to take the house in Mercer ? If so, and you want a deed, I will try and go home in March and get it for you.”</p> <p>“I am glad you have concluded to go to the Mercer house. I think the house will suit you well, and if it does it will be yours by deed.”</p> <p>“I do not think that I will have time to go to Pine Grove this spring, but I have directed S. Coleman to have whatever repairs are necessary and also a good fence (made). I will give you an order on him for money to move. I hope you will like the house, but if you don’t we can sell it, and you can buy another with the money.”</p> <p>“If you are satisfied, if you like the house and lot which you occupy, please write up a deed for yourself and send it to me, and I will return it giving you full control.”</p> <p>“If you will send a deed in favor of yourself or. mother, I will cheerfully sign it and return it, thus giving you a clear title to the property. I mean just what I say. I will send you a deed as sure as God is my judge. Please write up a deed and send it to me, and, my word as a son to a father, I will return the three deeds giving you full possession.”</p> <p>The defendant relied upon this evidence as establishing title by means of the gift by parol, afterwards acknowledged in the written letters so as to take the case out of the statute of frauds. The court withdrew the case from the jury and directed for the plaintiff; which action of the court defendant assigned as error.</p> <p>error. — The letters of V. O. Giebner to his father were a sufficient acknowledgment in writing to take the case out of the operation of the statute of frauds and perjuries. Mildren v. Pennsylvania Steel Co. 90 Pa. 317; Hart v. Carroll, 5 W. N. C. 379; M’Parson’s Appeal, 11 Pa. 510, 511; Cadwalader’s Appeal, 3 W. N. C. 2.</p> <p>Defendant was in possession of the property, claiming it as his own, paying the taxes upon it, and exercising all acts of ownership over it. His possession was inconsistent with the title conveyed to and claimed by the plaintiff. It is as much the duty of a purchaser to go upon the premises, and ascertain by what tenure the party in possession claims to hold, as it is to examine the records for claim of title or to ascertain whether liens exist. The authorities on this point are not only numerous but come down to a very recent date. líottenstein v. Lerch, 12 W. N. C. 4; Rowe v. Ream, 14 W. N. O. 293 ; Jamison v. Dimock, 95 Pa. 55, 56; Berryhill v. Kirchner, 96 Pa. 489; Lord’s Appeal, 105 Pa. 456. ' ' ‘ '</p> <p>A gratuitous proposal to give away property at some future date, not even under seal, is no gift; it is simply nothing from a legal standpoint. A gift cannot be made by words in futuro. Re Campbell, 7 Pa. 100, 47 Am. Dec. 503; Poorman v. Kilgore, 26 Pa, 365, 67 Am. Dec. 524.</p> <p>The fact that the agreement is in writing does not dispense with the necessity of a consideration. Wb.iteh.ill v. Wilson, 3 Penr. & W. 405, 24 Am. Dec. 326.</p> <p>Neither is the consideration of blood or natural affection sufficient to sustain the agreement in such a case. Kennedy v. Ware, 1 Pa. St. 450, 44 Am. Dec. Í45.</p>

<p>October Term, 1886, No. 41, W. D., before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Error to tbe Common Pleas of Westmoreland County to review a judgment on a verdict for plaintiffs in an action of assumpsit.</p> <p>Tbe facts are fully stated in tbe charge to tbe jury in tbe ■court below by Hunter, J., as follows:</p> <p>“Joseph Guffey, by his last will, dated October 17, 1856, and admitted to probate November 18, 1862, devised bis farm, tbe land about which tbe present dispute has arisen to bis two daughters, Mary and Martha. The latter is still living and is tbe plaintiff in this action. Mary became tbe wife of M. M. Dick, in 1867, and died some three years after her marriage, leaving surviving her a son Jeremiah and her husband tbe present defendant.</p> <p>“It would appear that tbe plaintiff and tbe defendant enjoyed tbe land in common up until it was divided by proceedings in partition, which were commenced in August, 1871, and consummated, at least, in February, 1872. Tbe inquest divided tbe land into two purparts, viz.: ‘A,’ containing 57 acres and 120 perches, which was valued at $122.50 per acre; and ‘B,’ containing 55 acres and 133 perches, valued at $115.41 per acre.</p> <p>“It appears by the record that Martha, tbe plaintiff, appeared in court and elected to take part IB,’ at the valuation, and the same was accordingly decreed to her. Whereupon she entered into recognizance to pay to Major Dick, who was guardian of his son Jeremiah, the sum of $3,221.73, that being the child’s share, or one half. Part 'A’ was ordered to be sold, and was sold at public sale for $252 per acre, or for the round sum of $14,553. The sale was confirmed on the 15th of May, and a deed executed for the land to A. O. Hamilton, Esq., who was returned by the trustee as being the purchaser. The sale was confirmed on the 27th of May, 1872. After deducting the costs, amounting to $528.29, the net proceeds of the sale would be $14,024.70; and that, divided between the two heirs, would give each the sum of $7,012.35. After this sale, receipts were entered of record; Dick receipting to Martha, the plaintiff, the recognizance for $3,221.73; and she receipting to the sheriff, who had been appointed trustee to sell part 'A’ for $7,012.35. The plaintiff now sues for her share of the profits of the land, which she contends Major Dick received and has not accounted for up to the time the land was disposed of by proceedings in the orphans’ court; and also, for the difference between $3,221.73, the amount of her recognizance, and $7,012.35, the one half of the net proceeds of the sale. This difference as we understand it, would amount to some $3,790, without computing interest.</p> <p>"Taking up first the claim for the proceeds of the farm, which is less important as to the amount at least, the plaintiff contends that Major Dick had the management of the whole farm and has not fully and honestly accounted to her for her share of the proceeds. In addition to her own testimony she also called Philip Eisher to prove that Major Dick tendered to her $950, which she refused; and Peters and Cowan were called, who, it seems, farmed the land, and who testified as to the terms of their respective leases and what the farm would produce.</p> <p>"In reply to this, as to the offer of the money testified to by the witness Fisher, the defendant says that the purpose of the offer was by way of compromise, and to end all demands that she might have against him. If you believe this version of the transaction, an offer thus made cannot be accepted as an acknowledgment of an indebtedness. In plain terms, where there is a dispute, and a tender of money is made to end the dispute, by ■way of compromise, such offer will not be received as evidence of an acknowledgment of indebtedness. The defendant also produced checks and receipts for the sawing of lumber, bills for lumber, etc., which he says he paid for the plaintiff in and about this farm. He. also offered evidence of the payment of $400 by him to the witness Pool to meet a legacy, or part of a legacy, payable by the plaintiff under the will of her father. He further says that she, herself, took away grain raised upon the farm, in pursuance of written agreements which she and Mrs. Dick entered into with persons who farmed the land for them; that in summing up the accounts, all that was due her was $20, which he says he afterwards discovered had been paid; and he testifies that, in this respect, there is nothing due the plaintiff. If this version be correct, then the plaintiff would not be entitled to recover on this account. You will say how this is, however, from the whole of the evidence, and determine this question of fact as to the rent, or the charges for the proceeds of the farm.</p> <p>“Turning then to the main question in dispute, as we view it —Is the plaintiff entitled to your verdict for the difference between the amount of her recognizance and the one half of the net proceeds of the sale of part ‘A’ of the land ? It is conceded that no money passed although receipts were given; that the plaintiff paid no money to Major Dick when he receipted her recognizance and that she received no money when she gave the receipt to the, trustee. Nor is it seriously controverted that Major Dick was the real purchaser at the sale — at all events, the evidence would justify you in believing he was — that he purchased the land through Esquire Hamilton.</p> <p>“The proceedings in partition, the acceptance of part of the land by the plaintiff, and the sale of the other part were legitimate. As between the parties, the receipts which passed are but prima facie evidence of payment; but no money, as we have seen, in fact was passed; and the plaintiff, in the absence of a good and sufficient defense would be entitled to recover. Or, as is said by the supreme court: ‘The defendant may show, if he can, a contract which defeats her right to recover. The plaintiff’s action to recover her share of the purchase money is in affirmance of the sale, and neither party can now question its fairness and validity.’</p> <p>“The parties differ widely as to what the arrangement was when the land was brought into partition. The plaintiff says Major Dick brought about the proceedings, and that he agreed with her that he would convey the land to her if it was allowed to go to sale and be should become the purchaser; and that with this promise or parol contract, or arrangement, by whatever term it may be known, she says that she receipted for her share of the purchase money. If this be so, she may compel the defendant to refund the money, although she could not compel him to make a deed. A parol agreement for the sale of land is invalid under our statute of frauds and perjuries; but if the purchase money be paid in pursuance of such contract it may be recovered back by a personal action. So that if such an arrangement was made and the plaintiff gave the receipt in pursuance thereof the defendant would be required either to give her the land or pay her back her money; in the absence, of course, of a sufficient defense. In the absence of any contract, the only question would be whether the plaintiff received her share of the purchase money; and the fact being conceded that she was not paid the money, the plaintiff’s right to recover, in such case, would be established.</p> <p>“Upon the part of the defendant it is earnestly contended that there was a full and satisfactory arrangement between him and the plaintiff that she was to take, as her full share of the land, the purpart marked ‘B,’ after having received the difference in the acreage and the difference of the sum of money in the valuation; and that she relinquished all her right to the part of the land that was sold; and that the receipt was given in accordance with such arrangement. Conceding this to have been shown to your satisfaction we instruct you that such arrangement, being in parol, could not affect the title to the land sold.</p> <p>“Title to land cannot be established by parol; nor the same-enforced, unless there be a full and exclusive surrender of possession and such valuable improvements made by the purchaser as would make it unjust and inequitable to compel him to give up the land. And in addition, such parol contract must be shown by satisfactory evidence. But if the plaintiff, at the time she gave the receipt for $7,012.35, did so with the full, conscious, and intelligent belief that she had fully received her share out of the whole of the land less a fraction in the number of acres and the difference in the appraised value, and this was the moving cause which induced her to sign the receipt; and if, without regard to any promises made by Major Dick, she gave the receipt which represented the money, she cannot now complain of what she voluntarily did. The $7,012.35 was bers, as she uoav contends for, and she had the right to do with it as she pleased. [I wish to be understood: if she gave the receipt on the faith of promises made by Major Dick, or in pursuance of previous arrangement made with him, she would not be precluded if she was dissatisfied with the disposition made of the land at the time the receipt was given. In plain terms: she would not be bound by this previous parol contract — if you believe there was such a contract between Major Dick and herself. But if, at the time she paid the money she voluntarily gave up to the guardian of her nephew that share of the purchase money, with a full understanding of what she was doing — she was of age and could act for herself].</p> <p>“This instruction is not inconsistent with our answers to the points submitted by counsel.”</p> <p>Plaintiffs presented the following points:</p> <p>1. The arrangement which the defendant, Mr. Dick, and Mr. McAfee set up to defeat the recovery by the plaintiff of her share of the proceeds of sale of the part marked “A,” rests in parol, and, by reason of the statute of frauds and for want of mutuality, is not an available defense, even if the jury should believe Dick’s version of the arrangement set up by him as a defense. Ansiuer. This point may be affirmed. We cannot do so, however, without a remark. The witness Mr. McAfee, is not a party to the action. He sets up no defense but was called as a witness. We rule the point on the ground that a parol contract cannot bo sot up to affect' title to land.</p> <p>2. If the proceedings in partition had not been begun and Jeremiah Dick had died seised of the undivided one half of the land, then, under the will of the father, and the intestate laws of the state, Mrs. Milligan would have become the owner of three fourths of the entire tract, subject to a life estate of Dick in the one fourth. Affirmed.</p> <p>8. Under the proceedings in partition, the value of part “B” was fixed by the appraisement, and Mrs. Milligan was liable to M. M. Dick as guardian of his son, in the sum of $3,221.71, being one half the valuation money. The value of part “A” was fixed by the sale, which made the defendant, Dick, if he was the real purchaser, liable to Mrs. Milligan in the sum of $7,-012.35, the one half the purchase moneyless costs. Affirmed.</p> <p>4. It being an admitted fact in the case that the recognizance for $3,221.71 was satisfied and the receipt for $7,012.35 signed without the payment of any money, the defendant, Dick, is liable to pay the difference between said sums, with interest, unless he can show, by clear and satisfactory evidence, a contract which relieves him from so doing, and the burden of such proof is on him. Affirmed.</p> <p>Defendant inter alia, presented the following point:</p> <p>1. If the plaintiff and defendant agreed that plaintiff could take whatever part she wanted and the part not taken should go to sale for the purpose of converting it into personalty; and part of this agreement was that if the defendant got this purpart “A” at the sale, he was to account with plaintiff at the appraised value of the two parts, making her equal in amount of acres and value, and the receipts were exchanged for that purpose and pursuant to that agreement, the plaintiff cannot recover in this action for the price of land sued for. Refused.</p> <p>Verdict was rendered for plaintiffs, and defendant took this writ, assigning as error the portion of the charge embraced in brackets, the answers to plaintiff’s points and the refusal to affirm defendant’s first point.</p> <p>If in point of fact, the contract between Dick and Mrs. Milligan was fully executed, as Dick contends it was, and Mrs. Milligan knew all the facts and circumstances leading up to that contract, and she had ratified and confirmed it by her subsequent acts, the statute could not be interposed in her behalf. Miller’s Appeal, 30 Pa. 478; Pearsoll v. Chapin, 44 Pa. 9; Neglev v. Lindsay, 67 Pa. 217, 5 Am. Rep. 427; Seylar v. Carson, 69 Pa. 81.</p> <p>If the alleged arrangement between Mrs. Milligan and Dick was by parol, it.was void. Galbreath v. Galbreath, 5 Watts, 146; Snively v. Luce, 1 Watts, 69; Gratz v. Gratz, 4 Rawle, 411.</p> <p>The language covered by the fifth assignment of error is not exactly correct, and taken by itself alone might mislead the jury. It is, however, so qualified by the general charge that no harm was done. Millwood Coal & Coke Co. v. Madison, 1 Sad. Rep. 269.</p> <p>In that case the answer was a simple affirmation; here it is a simple negation. So the cases are alike on principle. See also Pierce v. Cloud, 42 Pa. 102, 82 Am. Dec. 496.</p> <p>This court will not reverse, on a critical objection to the charge, if the judge has so expressed himself as to be understood by the jury. Horton v. Chevington & B. Coal Co. 2 Pennyp. 48; Kerr v. Sharp, 14 Serg. & B. 399.</p> <p>Inasmuch as plaintiff could not enforce against Dick the stipulations on his part by reason of the statute of frauds, the defense that the contract is invalid, being a parol contract about land and so void under the statute, is not available. Sands v. Arthur, 84 Pa. 419.</p> <p>The confirmation of a void contract is affected with the original taint. Negley v. Lindsay, 61 Pa. 211, 5 Am. Bep. 421; Seylar v. Carson, 69 Pa. 81; Washabaugh v. Entriken, 36 Pa. 513; Miranville v. Silverthorn, 48 Pa. 141.</p>

<p>Upon a sale of goods by sample there is no implied warranty of quality, or that the goods sold shall be equal in value to the sample.</p> <p>Where the charge is part of the record and brought before the supreme court by writ of error, it is the duty of that court to notice assignments of error to the charge, even though no exception to the charge was taken in the court below.</p> <p>Note. — An appeal was taken from the judgment entered on the second trial of this case, and was reversed in 122 Pa. 494, 9 Am. St. Rep. 124, 15 Atl. 881. Likewise on the third trial, see 130 Pa. 76,18 Atl. 604.</p> <p>By the act of April 13, 1887 (P. L. 21), it is provided that sales by sample, unless the parties shall agree otherwise, shall constitute an implied warranty that the property sold shall be' the same in quality as the sample shown.</p> <p>As to implied warranty upon sale of goods, see also the following editorial notes containing a full presentation of the authorities on their respective phases of the subject: Implied warranty of quality in sales by description, note to Murchie v. Cornell, 14 L. R. A. 492; implied warranty of fitness of property bought for special purposes, note to McQuaid v. Ross, 22 L. R. A. 187; implied warranty of genuineness upon sale of negotiable paper, note to Strauss v. Hensey, 36 L. R. A. 92; implied warranty on sale of stock, note to McClure v. Central Trust Co. 53 L. R. A. 153.</p>

<p>Where, on an issue raised by the denial of the plea of payment, the evidence in support of the plea and the opposing evidence are so evenly balanced that the jury cannot determine which preponderates, the defense will fail.</p> <p>Upon the question of payment of a demand sued on, the burden is on the defendant to establish the alleged payment; and if he fails to establish the execution of receipts of payment alleged by him, the verdict is no evidence that he is guilty of forgery or fraud in regard to them.</p> <p>Where the plaintiff denies such allegation of payment, no burden is cast upon him to prove that the defendant has committed fraud or forgery in the execution of such receipts, when he does not allege it.</p> <p>In such ease it is erroneous to charge the jury that the burden is on the plaintiff to overcome the receipts by convincing weight of testimony that the defendant procured the receipts from him by fraud.</p> <p>An instruction to the jury which was misleading, and not corrected in any part of the charge, is ground for reversal.</p>

<p>Where no point either oí law or evidence was put to the court and the only exception is to the opinion, the court on appeal is powerless to review.</p> <p>Note. — See Pai'ker Twp.’s Appeal, 1 Sad. Rep. 160.</p>

<p>An offer to show payment should set forth the facts specifically as to the manner in which the payment was made or under what particular state of facts the defendant is not indebted.</p> <p>In an action to recover money paid as bail for a debt of one afterwards discharged as a bankrupt, on a subsequent promise, an offer by defendant to prove that “the debt was or ought to have been paid” out of money in the hands of the plaintiff belonging to the bankrupt is too indefinite and is properly excluded.</p> <p>Note. — An offer of evidence must be specific as to the facts to be proved. Eiee v. Burns, 9 Pa. Super. Ct. 58, 29 Pittsb. L. J. N. S. 243, 43 W. N. O. 301; Hand v. Central Pennsylvania Teleg. Supply Co. 1 Lack. Legal News, 351; Williams v. Williams, 34 Pa. 312; Long v. North British & M. Tns. Co. 137 Pa. 335, 21 Am. St. Eep. 879, 20 Atl. 1014. If not certain, the appellate court cannot say whether error has been committed by a refusal to admit. Cole v. High, 173 Pa. 590, 34 Atl. 292; Sweetzer v. Atterbury, 100 Pa. 18.</p> <p>A judgment will not be reversed because it was said in the charge of the court to the jury that the case depended upon the truth or falsity of one witness, where such was the fact and the charge did the opposite party no harm.</p>

<p>Where one, either hy compulsion of law, or to relieve himself from liability, or to save himself.from damage, has paid money, not officiously, which another person ought to have paid, the former may recover from the latter, in an action of assumpsit, the amount so paid.</p> <p>Where a tenant of one half of a lot, to whom the tax of the whole of the lot is assessed, has paid the whole tax, neither officiously, negligently, nor knowingly, but by mistake, he can recover the one half so paid, from the tenant of the other half, in an action of assumpsit, although the payment was made before legal proceedings were begun to enforce it.</p> <p>The submission to the jury of the question of negligence on the part of the plaintiff, where the payment was made without investigation, is no ground for reversal on the part of the defendant.</p> <p>Note. — But there could be no recovery against the person to whom the money was paid, who was entitled to receive it. Taylor v. Beaver County, 3 Penr. & W. 112; Edgar v. Shields, 1 Grant, Cas. 361; Espy v. Allison, 9 Watts, 462.</p>

<p>October Term, 1886, No. 176, W. D., before Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Error to Common Pleas No. 1 of Allegheny County to review a judgment on a verdict for plaintiffs in an action of trespass vi ei armis.</p> <p>The facts are stated in the opinion.</p> <p>The court instructed the jury as follows:</p> <p>“For the present I shall instruct the jury that the plaintiffs have a right to recover, under the testimony offered in this case, and direct them to render a verdict for the plaintiffs, subject to the opinion of the court on the question of law reserved, to wit: whether under all the evidence in the case the plaintiffs are entitled to recover.” Defendant excepted and bill sealed.</p> <p>The court afterwards entered judgment on the verdict.</p> <p>The assignments of error specified the action of the court in instructing the jury as above and in not submitting to the jury the question of the ownership of the goods.</p> <p>—It is error to withdraw a question of fact from the jury, although the testimony of the only witness be uncontradicted; the question of his credibility is still before them. Madara v. Ever-sole, 62 Pa. Í 60; Bergner v. Thompson, 74 Pa. 168; McClurkan v. Byers, 74 Pa. 405.</p> <p>A charge which withdraws a question of fact from the jury is erroneous. Rife v. Galbreath, 3 Penr. & W. 204; Holden v. Winslow, 18 Pa. 160; Tenbrooke v. Jahke, 77 Pa. 392; Elkins v. McKean, 79 Pa. 493.</p> <p>It is error to withdraw the case from the jury if there be any matter proper for their decision. Moore v. Miller, 8 Pa. 272; Sellers v. Jones, 22 Pa. 425.</p> <p>It is error to give a binding instruction as to the inferences to be drawn from the facts in evidence. Wenrieh v. Heffner, 38 Pa. 207.</p> <p>Although the weight of the evidence may greatly preponderate on one side, it is error to instruct the jury that it is conclusive. Trovillo v. T'ilford, 6 Watts, 468, 31 Am. Dec. 484; Holden v. Winslow, 18 Pa. 160.</p> <p>The specific reservation should be made a matter of record at the time of the reservation. The omission to do so is not cured by a statement of the reservation, in the opinion of the court, on entering judgment. The opinion of the court is no part of the record. Buckley v. Duff, 111 Pa. 223, 3 Atl. 823; Irwin v. Wickersham, 25 Pa. 316; Wilson v. The Tuscarora, 25 Pa. 317; Clark v. Wilder, 25 Pa. 314 ; Winchester v. Bennett, 54 Pa. 510; Perguson v. Wright, 61 Pa. 258; Wilde v. Trainor, 59 Pa. 439; Patton v. Pittsburgh, C. & St. L. R. Co. 96 Pa. 169; Elkins v. Susquehanna Mut. P. Ins. Co. 14 Pittsb. L. J. 420; Inquirer Printing & Pub. Co. v. Rice, 106 Pa. 623.</p> <p>error. — There was no dispute as to the facts; they were admitted by the defendant.</p> <p>' The cases cited by the other side apply where judgment is entered non ohsiante veredicto. Here there was simply a judgment upon the verdict. This court will not reverse it. Yard v. Pan-coast, 108 Pa. 384.</p>

October Term, 1886, No. 94, W. B., before Gordon, Trunkey, Sterrett, Green, and Clark, JJ. Error to th© Common Pleas, No. 2, of Allegheny County to review a judgment on a verdict for plaintiff in an. action of assumpsit on a promissory note. This action was brought by the Second National Bank of Pittsburgh against B. J. Wilson and George E. Tener, copartners as Wilson & Tener, for the amount of the following promissory note: Pittsburgh, November 6, 1884. $1,200.

<p>The inquiry of the supreme court, on certiorari to a court of quarter sessions to review proceedings in laying out a public road, must be wholly confined to the record and cannot extend to the facts as on an appeal,</p>

Argued October 26, 1886, before Gordon, Trunkey, Sterrett, Green, and Clark, JJ. October Term, 1886, No. 51, W. D. Error to the Common Pleas No. 2 of Allegheny County to review a judgment on a verdict directed for plaintiff in an action of debt on a guardian’s bond.

Argued October 26, 1886, before Gordon, Thun key, Sterrett, Green, and Clark, JJ. October Term, 1886, No. 33, W. D. Error to the Court of Quarter Sessions of Allegheny County to review a judgment on conviction on an indictment for selling liquor in a prohibitory district. The return of a eonstable of South Fayette township was made to the court under oath that John Davidson had sold liquor in such township.

<p>Argued October 25, 1886, before Gordon, Trunkey, Sterrett, Green, and Clark, JJ. October Term, 1886, No. 25, W. D. Error to Common Pleas No. 2 of Allegheny County to review a judgment on a verdict for defendant in an action of debt on a policy of insurance.</p> <p>The facts are chiefly stated in the opinion of the supreme court. The policy of insurance contained the following clause: “This policy shall become void, unless consent in writing is indorsed by the company hereon, ... if any building herein described be or become vacant or unoccupied for the purposes indicated in this contract.”</p> <p>The jury returned a special verdict for the plaintiff, finding, inter alia, that one of the houses was vacant when the fire occurred: the verdict being subject to the opinion of the court on the reserved questions, to wit: 1, whether, under the policy and pleadings and these facts, the plaintiff can recover at all; and 2, whether the plaintiff can recover on one or more of the buildings the amount of the policy on such, if no recovery can be had on the other; and if there can be a partial recovery, the court to mould the verdict accordingly.</p> <p>The court, White, J., entered judgment for the defendant non obstante veredicto.</p> <p>The assignments of error specified the action of the court: 1, in entering judgment for the defendant; 2, in not entering judgment for the plaintiff for the sum of $2,000, with interest, being tbe amount of tbe insurance on the two buildings.; 3, in holding that the contract of insurance was entire; 4, in not holding that the policy was several and distributive.</p> <p>The alienation of one of several estates separately insured by tbe same policy avoids the policy as to the estate alienated. Flanders, Fire Ins. 425; Angelí, Fire & Life Ins, § 193; Emerigon, Ins. by Meredith, 235; Hartford F. Ins. Co. v. Walsh, 54 111. .164, 5 Am. Hep. 117; Loehner v. Home Mut. Ins. Co. 17 Mo. 247, 19 Mo. 628, 2 Mo. 126; Clark v. New England Mut. F. Ins. Co. 6 Cush. 342, 53 Am. Dec. 44.</p> <p>Merrill v. Agricultural Ins. Co. 73 N. Y. 452, 29 Am. Hep. 184, after an exhaustive discussion, decides that such a contract is severable.</p> <p>In Gottsman v. Pennsylvania Ins. Co. 56 Pa. 210, 94 Am. Dec. 55, false representations were made as respected encumbrances, at the time the application was made, which vitiated the whole contract. Judge Thompson, in placing the decision upon the ground that the contract is entire and not severable, misapprehended the doctrine of his quotation from 2 Parsons on Contracts, p. 31. As appears by note z, the authority on which the text in Parsons is founded is Miner v. Bradley, 22 Pick. 457.</p> <p>In that ease the defendant put up at auction a certain cow and 400 pounds of hay, both of which the plaintiff bid off for $17, which he paid at the time. He then received the cow and afterwards demanded the hay, which was refused by the defendant who had used it. The action was brought to recover the value of the hay. In the text Judge Parsons was speaking of an indivisible consideration (and the $17 bid for the cow and hay together was such) and fully supported the doctrine of the text.</p> <p>But as stated by Judge Morton in Miner v. Bradley, if separate sums had been bid for the cow and the hay, and together amounting to $17, no matter how the transaction appeared in the bill of the auctioneer, the contract was severable.</p> <p>In Friesmuth v. Agawam Mut. F. Ins. Co. 10 Cush. 590, and Brown v. People’s Mut. Ins. Co. 11 Cush. 280, there was fraud and misrepresentation at the inception of the contract.</p> <p>In the case of Fire Asso. v. Williamson, 26 Pa. 196, the fire resulted from prohibited articles causing the destruction of all of the buildings, and the question of entire or several contract was not involved.</p> <p>The case of Clark v. New England Mut. E. Ins. Co. 6 Cush. 342, 53 Am. Dec. 44, is condemned in Wood on Eire Ins. § 165. ’</p> <p>Policies similar to this were held entire and not severable in Eire Asso. v. Williamson, 26 Pa, 196, and Gottsman v. Pennsylvania Ins. Co. 56 Pa. 210, 94 Am. Dec. 55.</p> <p>Where the condition of a policy of insurance is unambiguous and reasonable, the insured cannot escape compliance with the terms by showing good faith and an honest although unsuccessful effort to comply therewith. McClure v. Watertown E. Ins. Co. 90 Pa. 277, 35 Am. Rep. 656; Commonwealth Mut. E. Ins. Co. v. Iluntzinger, 98 Pa. 41; Pottsville Mut. F. Ins. Co. v. Fromm, 100 Pa. 355.</p> <p>In Long v. Beeber, 106 Pa. 470, 51 Am. Rep. 532, a tenant in possession, without the knowledge of the insured, as alleged, placed a steam threshing machine in proximity to the bam, and, thereby broke his w'arranty. The policy was thus avoided.</p> <p>In Pottsville Mut. F. Ins. Co. v. Horan, 89 Pa. 438, neglect to mention the existence of a carpenter shop on the premises at the time of the application, and the erection — after insurance —of a new building by the assured on an adjoining lot, without notice to the company, avoided the policy.</p> <p>And in Manufacturers & M. Ins. Co. v. Kunkle, 6 W. N. C. 234, and Seybert v. Pennsylvania Mut. F. Ins. Co. 103 Pa. 282, it makes no difference though the fire was not caused by the increased risk.</p> <p>In Friesmuth v. Agawan Mut. F. Ins. Co. 10 Cush. 590; Brown v. People’s Mut. Ins. Co. 11 Cush. 280; Kimball v. Howard F. Ins. Co. 8 Gray, 38; Lee v. Howard F. Ins. Co. 3 Gray, 583; Lovejoy v. Augusta Mut. F. Ins. Co. 45 Me. 472, and Richardson v. Maine Ins. Co. 46 Me. 394, 74 Am. Dec. 459, the contract was held entire.</p> <p>Miner v. Bradley, eited in Gottsman v. Pennsylvania Ins. Co. 56 Pa. 210, 94 Am. Dec. 55, decided that an entire consideration makes an entire contract.</p>

<p>Error to Common Pleas No. 1 of Allegheny County to review a judgment for want of a sufficient affidavit of defense in an action of debt on an award.</p> <p>The affidavit of defense alleged, inter alia, that the arbitrator was a partner of the plaintiff, Simpson, and that he was not chief engineer, the officer agreed upon as arbitrator, when the award was made.</p> <p>The assignments of error specified the action of the court in malting absolute the rule and in not dismissing the rule.</p> <p>In an action on an award at common law the misconduct of the arbitrator is a good defense. Van Cortlandt v. Underhill, 17 Johns. 405; Speer v. Bidwell, 44 Pa. 23.</p> <p>The party to decide was he who at the time of the reference held the office. North Lebanon R. Co. v. McGrann, 33 Pa. 530.</p> <p>North Lebanon R. Co. v. McGrann, 33 Pa. 530, was a suit between the company and a contractor, and therefore the reasons stated in the opinion in that case do not apply here.</p>

1 of Allegheny County to review a judgment for plaintiff in an attachment execution. On the trial before Collier, J., the following facts appeared: The plaintiffs in error, Spratt, Johnston & Company, were summoned as garnishees of the Seimens-Anderson Steel Company, a corporation, in an attachment execution at the suit of the Merchants’ & Manufacturers’ Bank of Pittsburgh. They pleaded nulla tona.

1 of Allegheny County to review a judgment on a verdict for the plaintiff in an action of trespass on the case for negligence. Held: it mattered not who placed the obstruction in the street; that while the water company had a right to put a plug in the street, it had no authority to place and maintain an obstruction on the street. It is no defense that a third party caused the obstruction or defect.

2 of Allegheny County to review a judgment on a verdict for the defendant in an action of ejectment. At the trial before White, J., the following facts appeared: In 1838, Isaac Byers, Sr., the father of the plaintiffs, obtained from the commonwealth a warrant for a survey of the land in dispute, and had the land surveyed. No patent, however, was taken out until 1872.

<p>Appeal from a decree of Common Pleas No. 2 of Allegheny County for the plaintiff in a bill in equity.</p> <p>This was a bill filed by Mary McCombs against John Allen, who as trustee succeeded J ames Kelly, and against her children, to have a trust, created by deed dated March 10, 1863, adjudged executed and determined and herself declared owner in fee of the land held in trust, and accordingly to require the trustee to execute and deliver to her a deed of the land.</p> <p>The court below, White, J., directed a decree for the plaintiff in the following opinion:</p> <p>“If the object of this trust was to protect the property from the debts or control of the husband of Mary McCombs, it ceased at the death of her husband. Freyvogle v. Hughes, 56 Pa. 228.</p> <p>“If it was an active trust, created for some purpose which required the legal estate to remain in the trustee during the life of the cestui que trust, it would not.</p> <p>“The property was conveyed to James Kelly, In trust, nevertheless, for the sole and separate use of Mary McCombs, wife of J. P. McCombs, of East Liberty, and her heirs, with power in him, the said trustee, to sell and convey the same, or any part thereof, in fee, or such other estate as he may deem proper, and the proceeds thereof to invest in lands or otherwise, and -hold under the same trust, and with power also to said trustee by deed or last will, to appoint another trustee in his stead or to succeed him.’</p> <p>“The trust is not for the use or benefit of Mary McCombs during her life, and then over to the heir. It is ‘for the sole and separate use of Mary McCombs . . . and her heirs.’ It certainly was not intended that the trustee should remain trustee after the death of Mary McCombs; yet the language, if strictly construed, would bear that interpretation. The words ‘sole and separate use’ cannot apply to ‘heirs;’ yet the sentence reads, ‘for the sole and separate use of Mary McCombs and her heirs.’ Evidently the meaning is for the sole and separate use of Mary McCombs alone. The object of the trust was to protect the property from the debts or control of her husband. The words ‘sole and separate’ always have that meaning when applied to married women, and are not often, if ever, applied in any other way. The trust is for her benefit, not for the benefit of her heirs; they would take at her death as heirs, and not by virtue of the trust. She, therefore, took an equitable fee simple, which became absolute when the trust ended by the ■death of her husband.</p> <p>“In Bacon’s Appeal, 57 Pa. 504, Bife v. Geyer, 59 Pa. 393, '98 Am. Dec. 351, and similar cases, the trusts were declared active to save the estate of a spendthrift, or because of certain provisions, or devises, which required the trustees to perform duties during the entire lifetime of the cestui que trust, or to .save the estate for the remaindermen.</p> <p>“In this case there are no duties devolving upon Kelly, the trustee. He is a naked trustee, but clothed with power to sell, .and required to invest the proceeds if he should sell. But the proceeds, or the new property, are under precisely the same trust. This provision was also manifestly for the benefit of Mrs. McCombs alone, that a sale might be effected without hindrance or trouble from her husband.</p> <p>' “Even an active trust ceases when its object is at an end, ‘and •this is always so when an estate of inheritance or an absolute •estate is put in trust for coverture merely.’ .Williams’s Appeal, ■83 Pa. 377.”</p> <p>Afterward the court entered the following decree:</p> <p>“And now, April 27, 1886, this cause having come on to be heard on bill and answers and arguments of counsel, it is ordered .•and decreed that the trust created in the deed of trust- of William Ward et al., to James Kelly, who was succeeded by John Allen, has ceased and determined; and that the plaintiff, Mary Me-Combs, is tenant in fee simple of the property described therein remaining unsold.</p> <p>“And it is further ordered and decreed that said John Allen, defendant, shall execute and deliver to said Mary McCombs a conveyance of all his right, title, interest, and estate in the premises aforesaid.</p> <p>“And that the costs of this proceeding shall be paid by the complainant.”</p> <p>The assignment of error specified the entry of this decree.</p> <p>If the intention of the ,grantor was to vest a fee in Mary McCombs, to be held by the trustee during the life of John F. McCombs and free from his control, he has failed in his object, as he expressly says it is “for the sole and separate use of Mary McCombs, wife of John F. McCombs, of East Liberty, and her heirs.” There is more than one person who shall benefit by his bounty.</p> <p>The trust must be for the benefit of the wife exclusive of any ¡other person; and a gift for the benefit of the children as well •as the wife has been held not to create a trust for her separate use, although the terms of the gift would otherwise have had that operation. Hill, Trustees, § 421, p. 651; Wardle v. Claxton, 9 Sim. 524; Ashcraft v. Little, 39 N. C. (4 Ired. Eq.) 236; Inge v. Forrester, 6 Ala. 418.</p> <p>Where a trust for the income, use, and profits has been created, with the provision that at the death of the cestui que trust the -corpus of the estate shall descend to the heirs of the cestui que ■trust, under the intestate law, it is a trust for the protection and payment of the income to the cestui que trust, but not of the estate, and the cestui que trust does not take a fee in the realty. 'Thomas v. Folwelj, 2 Whart. 15, 30 Am. Dec. 230; Earp’s Appeal, 75 Pa. 119 ; Ashhursfis Appeal, 77 Pa. 464.</p> <p>Instead of holding the wife to be a feme sole to all intents as regards her separate estate, she ought to be deemed so only to the extent of the power clearly given in the conveyance, and that instead of maintaining that she has an absolute right of disposition, unless she is expressly restrained, the converse of the proposition ought to b® established — that she has no power but what is expressly given. Lancaster v. Dolan, 1 Eawle, 231, 18 Am. Dec. 625 ; Methodist Episcopal Church v. Jaques, 3 Johns. Ch. 108; Stokes's Appeal, 80 Pa. 337; Thomas v. Folwell, 2 Whart. 11, 30 Am. Dec. 230; Wright v. Brown, 44 Pa. 240.</p> <p>This was a question of fact to be passed on as in other cases. When at the execution of the writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admisisible, although it may vary and materially change the terms of the contract. Greenawalt v. Kohne, 85 Pa. 375; Lippincott v. Whitman, 83 Pa. 245; Caley v. Philadelphia & O. County E. Co. 80 Pa. 370; Kostenbader v. Peters, 80 Pa. 43S; Graver v. Scott, 80 Pa. 94.</p> <p>That parol evidence may be admitted to contradict, vary or even avoid a written instrument, where it is proved that but for the oral stipulations it would not have been executed, is a doctrine now so well settled that its discussion would be a mere waste of time. Hoopes v. Beale, 7 W. N. O. 337; Parlce v. Neely, 9 W. N. C. 193; Shepler v. Scott, 85 Pa. 329.</p> <p>This is an ejectment bill. The right of the complainant is denied. The allegation of the respondents is that the complainant is not entitled to the relief sought; and the equities Of the complainant are shown not to exist by reason of the vesting of the title in fee in the respondents. The absence of jurisdiction may be taken advantage of on the final hearing. Wiser5s Appeal, 9 W. N. C. 508.</p> <p>A bill in equity which prays for the cancelation of a deed alleged to have been procured by fraud and for a decree restoring to the complainant the possession of land will be dismissed as an ejectment bill. Richard’s Appeal, 100 Pa. 52; Triseuit’s Appeal, 13 W. N. C. 57; Smaltz’s Appeal, 99 Pa. 312; Rife v. Geyer, 59 Pa. 396, 98 Am. Dec. 351; Spangelberger v. Leger, 11 Luzerne Legal Reg. 36.</p> <p>A court of equity will not entertain a mere ejectment bill. Kennedy’s Appeal, 81 *Pa. 163; Messimer’s Appeal, 92 Pa. 168; Long’s Appeal, 92 Pa. 171; Barclay’s Appeal, 93 Pa. 50; Richard v. Oherrington, 12 W. N. O. 140.</p> <p>The words in the deed are the apt and technical expression to give a married woman an estate free from the control of the husband, and are applied only to married women, or at insist to one in contemplation of coverture. The words simply have the operation of designating an estate in which the husband has no rights. Bispham, Eq. §§ 100 et seq.</p> <p>Hence these words cannot apply to the “heirs” in this case, and hence the case in no way differs from a gift in trust for one and her heirs.</p> <p>A trust for the sole and separate use of a married woman ceases on discoverture.</p> <p>In Bush’s Appeal, 33 Pa. 85, where the testator devised realty and personalty to a trustee in trust to pay the income to the sole and separate use of his daughter, a married woman, during her natural life, and after death the principal to go to her children, Lowbie, J., held that after the death of the husband the daughter took and the trust ceased; that the intention of the testator, as shown by the words “sole and separate use,” was to protect his daughter against her husband and not the heirs against their mother; and, further, that the intention of the testator made no difference, as the gift was to the daughter and her heirs, and “that the equity form does not at all obscure the legal title.”</p> <p>See also Smith v. Starr, 3 Whart. 62, 31 Am. Dec. 498; Freyvogle v. Hughes, 56 Pa. 228; McKee v. McKinley, 33 Pa. 9.2; Hamersley v. Smith, 4 Whart. 126; Harris’s Estate, 3 Phila. 326, and Pea v. Cassel, 36 Phila. Leg. Int. 151.</p> <p>The grounds of these decisions, which are that the need for protection is at an end at the husband’s death, and therefore that the trust ceases, show plainly and clearly that the words “sole and separate use” have in law a fixed, definite, and limited meaning, and that is that the words constitute a technical expression denoting simply that the husband is to have no control of the wife’s estate, and nothing else; they have the single effect of limiting and cutting off the husband’s right. The fact that these words afford no inference that merely a life estate or any other estate, as to quantity, was granted is shown by the fact that the estates in the above cases were decided to be fees, because the gifts in all of them were to one and her heirs, and not because they were for the sole and separate use of the wife.</p>

October Term, 1886, No. 225, W. D. Appeal from a decree of the Orphans’ Court of Allegheny County directing a trustee to transfer and assign to a cesiui que trust cash and securities of the trust At the audit of the account of J. Morrow Arnold, trustee under the will of James H. Brown, deceased, Mary A. Harper, the cestui que trust, came into court and requested the transfer to her absolutely of that portion of the estate in the hands of J. Morrow Arnold, trustee, alleging…

Argued Nov. 8, 1886, before GordoN, PaxsoN, TruNkey, Sterrett, GreeN, and Clark, JJ. October Term, 1886, No. 201, W. D. Error to the Common Pleas No. 2 of Allegheny County to review a judgment on a verdict directed for plaintiff in an action of assumpsit.

Argusd November 10, 1886, before GordoN, PaxsoN, Tbuwkey, Sterrett, GreeN, and Clark, JJ. October Term, 1886,. No. 259, W. D. Appeal from the decree of the Orphans’ Court of Allegheny County directing specific performance of a contract to purchase real property.

<p>Argued Nov. 10, 1886, before GoedoN, PaxsoN, TruNKEt, Stereett, Greek, and Claric, JJ. October Term, 1886, No. 240, W. D. Appeal from an order of the Common Pleas No. 1 Allegheny County discharging a rule to show causo why a judgment should not be opened.</p> <p>In July, 1885, judgment was entered against L. C. Barton in favor of Robert Pollock for $308.61 on a judgment note given by Barton to Pollock. November 14, 1885, the defendant L. C. Barton presented a petition to the court to have such judgment opened, alleging “that he has a defense to a part of plaintiff’s claim, in this, that at the time the judgment note in suit was given to plaintiff, that he was only indebted to him in the sum of $225, with interest from January 4, 1884, and that the additional $50 added in said note was for interest thereon. Affiant further says that he has made payments in sums of $25 each on said indebtedness, aggregating $150, on or about the dates set out in the statement hereto attached, which sums plaintiff has appropriated as interest on said indebtedness, which defendant claims to be usurious and unlawful, and asks that said sum, less the lawful interest, be credited to him on the principal debt as per statement attached. That with said credits defendant is only indebted to plaintiff on said note in the sum of $86.14, with interest from February I, 1885, which sum, together with the costs, he hereby tenders to plaintiff, and will pay the same to the sheriff on the execution now in his hands, issued on this judgment. Affiant therefore prays Your Honors to grant him a rule on plaintiff to show cause why the judgment in this case should not be opened and affiant let into a defense; and in the meantime proceeding stayed on the said execution. All of which is true, to the best of affiant’s knowledge and belief.”</p> <p>The court granted a rule to show cause why the judgment should not be opened and the defendant let into a defense and granted a stay of proceedings in the meantime. The answer of Robert Pollock alleged that it was not true as set out in defendant’s petition, “that at the time of giving the note in suit, he was only indebted to the plaintiff in the sum of $225 with interest from January 4, 1884. But he was indebted to the plaintiff in the sum of $275 with interest from May 8, 1884, and the additional $50, nor was there any part thereof added for interest. .</p> <p>“The next allegation in said affidavit is utterly untrue, as he has not made any payments on said indebtedness, and the statement attached is also utterly untrue, and the plaintiff has not received nor appropriated any sum as interest.</p> <p>“Affiant, farther states that defendant has made to him several offers in writing of payment of this entire indebtedness, and this since execution 'was issued, provided he was allowed time, and payment was received in instalments of $25 or $50 per month, which affiant agreed to take; but defendant failed to perform any of his offers.</p> <p>“He also made a claim to the sheriff as agent of his wife that the goods levied on were hers, and after about- eighteen days, after an issue was granted by the court, without anything being done by the alleged claimant under the rule of court on that subject, compelled affiant to ask the court to revoke the order granting an issue, which it did.</p> <p>“On the afternoon of November 14, 1885, and after the present rule was granted, defendant sent a statement to affiant in which he admitted his indebtedness of principal and interest to be $285.13, and by his agent promised to pay the same, in certain instalments; wherefore affiant asks the court to discharge said rule.”</p> <p>The case was heard in the court below on the petition and answer, and the court discharged the rule to show cause; whereupon, Tj. O. Barton took this appeal, assigning such action of the court as error.</p>

2 Allegheny County to review a judgment entered for want of a sufficient affidavit of defense in an action of assumpsit. Colmer, being sued May 25, 1885, upon a bond accompanying a mortgage, gave notice to Patterson, who had purchased the premises subject to the mortgage, to appear and defend. Judgment was taken by default against Colmer June 15, and fi. fa. issued October 30, 1885, and levy made.

Argued October 28, 1886, before Gordon, Trunkby, Sterrett, Green, and Clark, JJ. October Term, 1886, No. 85, W. D. Appeal from a decree of the Common. Pleas No. 2 of' Allegheny County dismissing a bill in equity for an accounting.

Argued October 25, 1886, before Gordon, Trunkey, Sterrett, Green, and Clark, JJ. October Term, 1886, No. 13, W. D. Error to Common Pleas No. 1 of Allegheny County to review a judgment for the plaintiff on points reserved in an attachment sur judgment. The facts appear by the opinion of the court below, by Collier, J., on the reserved questions of law. The court charged the jury as follows: “This case will turn generally on questions of law, and they are not for you.

<p>On the trial of an indictment for unlawfully obstructing a public highway by placing and maintaining a pile of boards therein, the question whether such board pile did, or did not, occupy the highway is a question of fact for the jury.</p> <p>Reid also, that the act of incorporation of the bridge company, while it authorizes the company to occupy such land as is necessary for the completion and maintenance of its bridge, does not authorize it to take and occupy any part of a public highway for the purpose of storing material for repairs, when they may happen to become necessary on Hie bridge.</p> <p>Note. — llor the manner of defining the limits of the highways where an obstruction is alleged to have been erected thereon, see note to Glenn v. Com. 8 Sad. Rep. 134.</p>

Argued November 4, 1886, before Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. October Term, 1886, Nos. 155, 156, W. D. Error to Common Pleas No. 1 of Allegheny County to review judgments on a verdict for the plaintiff in actions of assumpsit. These were two cases by the holder against the maker and an indorser of the following promissory note: “$3,000.

.Argued October 20, 1886, before Gordon, Trunkey, Sterrett, and Green, JJ. October Term, 1886, No. 72, W. D. Error to Common Pleas No. 2 of Allegheny County to review a judgment, on a verdict for the plaintiff in an action of trespass on the case for negligence.

October Term, 1886, No. 93, W. D., before Gordon, Trun-key, Sterrett, Green, and Clark, JJ. Error to the Common Pleas No. 1 of Allegheny County to review a judgment for -plaintiff for want of a sufficient affidavit of defense in an áction of sci. fa. sur mortgage. The mortgage in suit was a purchase money mortgage given January 31, 1885, by B. M. Holland to the Peoples Savings Bank of Monongahela City.

October Term, 1886, before Gordon, Trunkey, Sterrett, Green, and Clark, JJ. Appeal from a decree of the Common Pleas No. 2 of Allegheny Oonnty distributing the proceeds of a sheriff’s sale.

October Term, 1886, No. 194, W. D., before Gordon, Paxson, Tbunkey, Sterrett, and Green, JJ. Error to the Court of Quarter Sessions of Allegheny County to review a judgment for plaintiff for want of a sufficient affidavit of defense in an action of sci. fa. on a license bond.

October Term, 1S86, No. 172, W. D., before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Appeal by defendants from a decree of the Common Pleas No. 2 of Allegheny County perpetually enjoining them from erecting weigh scales on a public highway. This was a bill in equity filed by the Killbuck township against R. H. Huddleston and wife to enjoin the erection of weigh scales on a public highway.

<p>October Term, 1886, No. 62, W. D., before Gordon, Trunkey, Sterrett, Green, and Clark, J"J. Certiorari to Quarter Sessions of Allegheny County to review the record of the court laying out and opening a private road.</p> <p>Upon the petition of Margaret Shawhan asking for a private' road “from tbe Bower Hill public road to the dwelling house of the petitioner,” viewers were appointed who returned a private road “beginning on Mrs. Margaret Shawhan’s land, near the stable, through improved land of Mrs. Blume ... to the Bower Hill public road.” Damages were assessed to Mrs. Blume.</p> <p>The return contained no reference to notice of the view. On December 15, 1885, this report was confirmed absolutely and order to open issued. On February 15, 1886, this writ was taken out by Mrs. Blume. Margaret Shawhan moved the court to quash the writ for the following reasons: 1, no exceptions were made to the report in the court below; and 2, the writ in this ■court does not set out the termini of the road.</p> <p>It is stated in the paper book of the defendant in error, that this writ simply recited the title of the case given. It seems that the case was docketed and indexed by this title.</p> <p>The assignments of error specified the action of the court: 1, in confirming the report when it did not set forth that Mrs. Blume, the landowner, had notice of the time and place of the meeting; 2, or of the assessment of damages; 3, in permitting "the order to open to issue in Such case; and 4, the record does not show that Mrs. Blume had any notice of the petition or of any .subsequent proceedings.</p> <p>error. — Personal notice of the time and place of view and assessment of damages is necessary. Be Neeld’s Road, 1 Pa. St. 353; Be Road, 110 Pa. 544, 1 Cent. Rep. 560, 1 Atl. 431; Be Private Road, 112 Pa. 183, 2 Cent. Rep. 349, 5 Atl. 383.</p> <p>The notice must appear by the records. Be Boyer’s Road, 37 Pa. 257.</p> <p>The jurisdiction of the court must appear by the record, without which the judgment is void. Com.w. Green, 4 Whart. 568; McKee v. McKee, 14 Pa. 237; Richards v. Rote, 68 Pa. 248.</p> <p>The court will take notice of a radical error, patent on the •face of the record, although no exceptions were taken in the -court below. Be Bean’s Road, 35 Pa. 280; Galbraith v. Green, 13 Serg. & R. 95.</p> <p>When it is said that all irregularities and errors to which ex- ■ ceptions are not taken in the quarter sessions will be considered :as waived, the court must be understood as excepting such as appear on the face of the record. Be Frankstown Twp. Koad, 26 Pa. 472. See also Lacockv. White, 19 Pa. 498.</p> <p>In a road case this court will not reverse for an objection which was not brought to the notice of the court below. Be Koad, 17 Pa. 116; Be Lower Merion Twp. Koad, 18 Pa. 238.</p> <p>A certiorari to remove a road case must set out its beginning and ending, otherwise it will be gnashed. Be Koad, 4 Yeates, 433.</p> <p>In Be Koad, the certiorari described one road; while the proceedings in a different road were brought before this court. Proceedings were then described in that way in the docket and index. They are not now.</p> <p>The termini in the petition here do not correspond with those of the report, and they are not definite.</p>

<p>October Term, 1886, No. 128, W. D., before Gordon, Paxson, Trunket, Sterrett, and Green, JJ. Appeal from a decree of Common Pleas No. 1 of Allegheny County in favor of plaintiifs in a bill in equity for an account.</p> <p>The bill was filed by Jerome B. Anjer and Hetty F. Dillon, executors of Levi Dillon, deceased, against Isaac De Haven. The defendant filed a plea, alleging in substance that the executors were not the proper parties, and an answer; and the court, reserving the question of law raised by the plea and answer, referred the cause to James Fitzsimmons, Esq., as master. Hpon his finding of facts, substantially .as set forth in the opinion,, the court amended the record by adding the name of Anjer as use plaintiff. The cause was again referred to the master. He reported an account stated for him by Mr. Reed, an expert accountant, and the court entered a final decree accordingly.</p> <p>The assignments of error specified the amendment of the record ; the charge of the defendant with the profits made after the death of Dillon to June 18, 1880; the refusal to allow the defendant one fourth of the interest paid for money borrowed for the use of the firm during liquidation; and the refusal to charge all costs to the plaintiffs instead of dividing them equally between the parties.</p> <p>De Haven, not having been a party to the proceedings in the orphans’ court, was in no manner affected by that decree, and therefore was not entitled to the benefit of it by way of estoppel. An estoppel by matter of record binds only parties and privies. Converse v. Colton, 49 Pa. 346; Blackwell v. Cameron, 46 Pa. 236.</p> <p>No one can set up an estoppel who is not affected by the act, or thing which constitutes the estoppel. Miles v. Miles, 8 Watts. & S. 135; Brubaker v. Okeson, 36 Pa. 519; Troxell v. Lehigh Crane Iron Co. 42 Pa. 513; Allen v. Allen, 45 Pa. 468.</p> <p>Estoppel must be mutual to be binding. Neither is bound unless the construction extends to both. 2 Smith, Lead. Cas.. 677.</p> <p>If the survivors of a partnership carry on the concern and enter into new transactions with the partnership funds, they do> so at their peril; -and the representatives of the deceased partner may elect to call on them for the capital, with a share of the profits or with interest. Brown’s Appeal, 89 Pa. 147. See also Beatty v. Wray, 19 Pa. 516, 57 Am. Dec. 677.</p> <p>The general rule in courts of equity as well as courts of law,, is to give the costs of suit to the victorious party. Bright, Eq. Jur. § 776.</p>

<p>In an action to recover for injuries caused by being run over by a horse-car, it was no error to refuse to charge that under all the evidence the verdict of the jury should he for defendant where there was testimony given tending to prove negligence of the car driver causing the injury.</p> <p>Cited in Le Grand v. Wilkes Barre & W. Valley Traction Co. 10 Pa. Super. Ct. 12, 18.</p> <p>Note. — It cannot be said, as matter of law, that permitting a child four years old to go upon a street in which there is a horse railway, in company with a child eleven years old, is negligence in the parents, or that the elder child had not sufficient intelligence to be intrusted with the care of the younger. Collins v. South Boston E. Co. 142 Mass. 301, 56 Am. Eep. 675, 7 N. E. 856.</p> <p>Where a street railroad company allowed snow removed from its track to accumulate, so as to become dangerous to those using the street, it is chargeable with maintaining a nuisance, and is liable to a person injured thereby. Dixon v. Brooklyn City & N. E. Co. 100 N. Y. 170, 3 N. E. 65.</p> <p>It is not negligence, as matter of law, for a passenger on a street ear to-attempt to leave the roar platform, while the ear is moving slowly, and run alongside the ear to the front plat-form, if the rear platform is overcrowded, and the rules of the company allow passengers to ride in front; nor is the passenger bound to know that his attempt is dangerous because the street has become slippery through neglect of the company to remove the snow. Ibid.</p> <p>While it is a reasonable safeguard against accidents to forbid departure from a horse ear while in motion, it would be unreasonable to deny to a passenger the right to move about on the floor of the car while it is in motion; such an act cannot be declared in law inexcusable negligence. Baltimore & Y. Turnp. Eoad v. Leonhardt, 66 Md. 70, 59 Am. Eep. 156, 5 Atl. 346.</p> <p>A passenger moving about on the floor of the upper section of a double-decked car while in motion, whereby he is injured by coming in contact with a bridge, cannot be declared in law guilty of inexcusable negligence. Ibid.</p> <p>A child riding upon the platform without payment of fare is a trespasser; but if the driver ejects him in a manner which endangers life or limb, the •company is liable. Biddle v. Hestonville, M. & P. Pass. R. Co. 112 Pa. 551, :3 Cent. Rep. 404, 4 Atl. 4S5.</p> <p>Where there was some evidence on the question of contributory negligence ■of the plaintiff, that question was also for the jury.</p> <p>What constitutes negligence is generally a question for the jury, whore material facts are disputed or inferences of fact are to be drawn from the testimony; when a duty is defined, a failure to perform it is negligence as matter of law.</p> <p>It was not erroneous for the trial court to charge the jury that if the •driver of the car saw the plaintiff or heard her warning cry or ought, by the exercise of ordinary vigilance, to have seen her or heard her cry in time to avert the accident, he was guilty of negligence and plaintiff should recover, where the defense of contributory negligence was also fully brought to the attention of the jury.</p> <p>It seems that the failure to keep a conductor on each car, in addition to the driver, is not negligence per se. Dunn v. Cass Ave. & P. G. R. Co. 21 Mo. App. 188.</p> <p>Where a boy having safely alighted from a moving car was, while running across the street from behind the car, struck and injured by another ■car going in the opposite direction, it was held error to leave to the jury the question as to whether the conductor’s failure to stop the car for the boy to alight contributed to the injury. Ibid.</p> <p>In Muehlhausen v. St. Louis R. Co. 91 Mo. 332, 2 S. W. 315, the negligence of the company, through which a person was injured, consisted in its failure to comply with the statutory requirement to furnish the ear with •adjustable gates or guards, such as would effectually prevent passengers from getting on or off the front platform.</p> <p>In an action against a street railway company for personal injuries, evidence on the part of plaintiff that she, while alighting from defendant’s •car, carrying a child on her left arm, tried to reach with her right hand the handle of the rear dasher, but that although there were empty scats in the car, as another passenger was standing in the way, she missed the handle and, slipping on ice which remained on the step from the previous •day, fell, receiving severe injuries, makes out a case for the jury; and a nonsuit is error, although it appears that the plaintiff knew there was ice •on the step and might, by changing the child to the other arm, have grasped with her left hand the handle on the end of the car. Neslie v. Second & Third Streets Bass. R. Co. 113 Pa. 300, 4 Cent. Rep. 699, 6 Atl. 72.</p> <p>The driver of a vehicle, rightfully using a street railroad track as a part ■of the public street, is entitled to notice that the company requires the track for its ear, before he is obliged to leave the track. Orange & N. Horse R. Co. v. Ward, 47 N. J. L. 560, 4 Atl. 331.</p> <p>See also Citizens’ Pass. R. Co. v. Costigan, ante, 161.</p> <p>Por evidence of negligence sufficient to submit to the jury, see Schneider v. Pennsylvania Co. 1 Sad. Rep. 290. Por where a compulsory nonsuit •should be entered, see note to Reinhart v. South Easton, 2 Sad. Rep. 105.</p>

October Term, 1886, No. 90, before Gordon, Trunkey, Sterrett, Green, and Clark, JJ. Error to Common Pleas No. 2 Allegheny County to review a judgment for plaintiff for want of a sufficient affidavit of defense in an action of debt on two life insurance policies. This action was brought by Reuben Jenkins as administrator of the estate of Isaac Jenkins, deceased, on two life insurance policies with the defendant company, numbered 1,097,983 and 1,973,166.

<p>October Term, 1886, Nos. 236, 237, before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Error to the Court of Common Pleas of Allegheny County to review a judgment of compulsory nonsuit in an action against a surety on a lease for rent due.</p> <p>Michael Cooney, the owner of the premises, agreed to rent them to Mrs. Thomas McClelland, provided the defendant, to whom Mrs. McClelland referred him, would go security for the rent. Cooney called upon Biggerstaff, who said that he would go security, and who thereupon signed the lease of the premises as surety. It appeared that the lease was never signed by Mrs. McClelland, but that Cooney told her that Biggerstaff had signed the lease as security, and she thereupon took possession.</p> <p>The tenant having failed to pay the rent, Cooney brought suit against Biggerstaff before an alderman, and obtained judgment. On appeal by defendant to the court of common pleas, the court granted defendant’s motion for compulsory nonsuit and a judgment was entered accordingly; whereupon, plaintiff took this writ, assigning such action of the court as error.</p> <p>Under the act of 1855 an undertaking to pay the debt of another (over $20) must be in writing, and signed by the party to be bound, but it has never been held that the debt itself, as between the debtor and creditor, must, be evidenced by writing. This, however, was not a preexisting debt, but a liability — a consideration to pass in the future, to wit: giving the possession and use of the dwelling house to McClelland and wife, on the strength of the written undertaking of Thomas Biggerstaff to be responsible for the rent. Shively v. Black, 45 Pa. 345; Hewes v. Taylor, 70 Pa. 387.</p>

October Term, 1886, Nos. 42, 64, before Gordon, Trunkey, Stebrett, Green, and Clark, JJ. Errors to the Common Pleas No. 1 of Allegheny County to review judgments on verdicts for defendant in two actions of trover and conversion. Reported below, 1 Pa. Co. Ct. 171, 33 Pittsb. L. J. 211. These actions were brought by P. Keil and J. T. Keil, doing business as P. Keil & Son, against L. H. Harris to recover damages for the conversion of fifteen and twenty-five barrels of whisky.

October Term, 1886, No. 168, before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Appeal from a decree of the Common Pleas No. 1 of Allegheny County dismissing a bill to compel a married woman and her husband to make a deed. P. M. Love and others conveyed a lot of ground in the nineteenth ward, city of Pittsburgh, to “Sarah J. Minor in trust for Edith M. Minor, daughter of Hammell Minor and the said Sarah J. Minor,” by deed dated November 10, 1881.

<p>The transportation and supply of natural gas for public consumption is -a public use, and the right of eminent domain granted to corporations by the 10th section of the “Act to Provide for the Incorporation and Regulation of Natural Gas Companies,” May 29, 1885, Pub. L. 29, is within the •constitutional power of the legislature to grant.</p> <p>Cited in Kincaid v. Indianapolis Natural Gas Co. 124 Ind. 577, 8 L. R. A. 604, 19 Am.. St. Rep. 113, 24 N. E. 1066, holding that the work of supplying cities with natural gas is a public one, for which property may be taken under right of eminent domain; in St. Mary’s Gas Co. v. Elk County, 191 Pa. 461, 43 Atl. 321, holding a natural gas company engaged in a public business and not taxable upon land which contains gas, and which is necessary to carry out the public purpose; in Scranton v. Scranton Electric Light & P. Co. 8 Pa. Co. Ct. 630, 1 Lack. Jur. 393, holding an electric light company, supplying light, heat, and power, engaged in a public business and its property, necessary in the carrying on of such public purpose, exempt from local taxation.</p> <p>Note. — Private property can be taken under the power of eminent domain only where public exigencies demand it. West River Bridge Co. v-Dix, 6 How. 507, 545, 12 L. ed. 535, 550.</p> <p>The power can never be exercised by a private corporation whore there is no public use connected with the taking. Re Albany Street, 11 Wend. 149, 25 Am. Dee. 618; Bloodgood v. Mohawk & H. R. Co. 18 Wend. 55, 31 Am. Dee. 313; Re .John & C. Streets, 19 Wend. 659; Taylor v. Porter, 4 Hill, 142, 40 Am. Dee. 274; Boekman v. Saratoga & S. R. Co. 3 Paige, 73, 22 Am. Dec. 679; Embury v. Connor, 3 N. Y. 511, 53 Am. Dee. 325; White v. White, 5 Barb. 474; Sadler v. Langham, 34 Ala. 311; Hepburn’s Case, 3 Bland, Ch. 95; Dunn v. Charleston, Harp. L. 189; Bankhead v. Brown, 25 Iowa, 540; Dickey v. Tennison, 27 Mo. 373; Concord R. Co. v. Greely, 17 N.' H. 47; Cooper v.' Williams, 5 Ohio, 393, 24 Am. Dec. 299; Buckingham v. Smith, 10 Ohio, 296; Kramer v. Cleveland & P. R. Co. 5 Ohio St. 146; Pittsburgh v. Scott, 1 Pa. St. 309; Pratt v. Brown, 3 Wis. 603. And see Panning v. D; M. Osborne & Co. (N. Y.) 3 Cent. Rep. 453, and note.</p> <p>The right of eminent domain can be exercised by private corporations; in aid of an undertaking to subserve the public interest where there is a public use attached. Buffalo & N. Y. C. R. Co. v. Brainard, 9 N. Y. 100; Weir v. St. Paul, S. & T. F. R. Co. 18 Minn. 155, Gil. 139; Boston Water Power Co. v. Boston & W. R. Corp. 23 Pick. 360; Giesy v. Cincinnati, W. & Z. R. Co. 4 Ohio St. 308.</p> <p>But the power can be exercised only when some public need is to" be-supplied or some present public advantage gained. Edgew-ood R. Co.’s Appeal, 79 Pa. 257.</p> <p>The question of what is a public use is to be determined by the courts.. Tyler v. Beacher, 44 Vt. 648, 8 Am. Rep. 398; New Central Coal Co. v-George’s Creek Coal & I. Co. 37 Md. 537; Parham v. Decatur County Justices, 9 Ga. 341; Anderson v. Turbeville, 6 Coldw. 150; Memphis Freight Co. v. Memphis, 4 Coldw'. 419; Sadler v. Langha-m, 34 Ala. 311; Consolidated Chaftnel Co. v. Central P. R. Co. 51 Cal. 269; 2 Kent, Com. 340; note to. Barre R. Co. v. Montpelier & W. River R. Co. 4 L. R. A. 785.</p> <p>Where a use has been declared to be public by the legislature, the courts will hold it such, unless the contrary clearly appears. Bankhead v. Brown, 25 Iowa, 540; Hanson v. Vernon, 27 Iowa, 2S, 1 Am. Rep. 215; Concord R_ Co. v. Greely, 17 N. H. 47; Olmstead v. Camp, 33 Conn. 532, 89 Am. Dee.. 221; Edgewood R. Co.’s Appeal, 79 Pa. 257; Hazen v. Essex Co. 12 Cusli. 477.</p> <p>No person or corporation can exercise the power of eminent domain, unless expressly authorized to do so by the legislature. 2 Morawetz, Priv. Corp. § 768.</p> <p>The governor, by charter, cannot take away a citizen’s constitutional right of property, nor confer the right of eminent domain. Com. ex rel. Chase v. Harding, 87 Pa. 343, 353.</p> <p>The legislature is the proper body to determine the necessity of the exercise of the power, and the extent to which it shall be carried. North Missouri R. Co. v. Gott, 25 Mo. 540; Bonaparte v. Camden & A. R. Co. Baldw. 205, Eed. Cas. No. 1,617; Concord R. Co. v. Greely, 17 N. H. 47; Ilingliam & Q. Bridge Turnp. Corp. v. Norfolk County, 6 Allen, 353; Waterworks Co. v. Burkhart, 41 Ind. 364; Challiss v. Atchison, T. & S. P. R. Co. 16 Kan. 117.</p> <p>But even the legislature has not the right to take the property of one individual or corporation and give it to another for a private use even if ample compensation is provided. Hepburn’s Case, 3 Bland, Ch. 95; West River Bridge Co. v. Dix, 6 How. 507, 12 L. ed. 535; Bangor & P. R. Co. v„ McComb, 60 Me. 290. And an abuse of a general act authorizing condemnation will not be tolerated. Bankhead v. Brown, 25 Iowa, 540.</p> <p>The same determination is reached in Pittsburgh’s Appeal, 115 Pa. 4, 7 Atl. 778.</p> <p>As to what purposes are public, see also the following editorial notes, presenting the authorities on their respective subjects: Drainage of private lands as public purpose for which power of eminent domain may be-exercised, note to Re Tuthill, 49 L. R. A. 781; acquisition of water supply, note to Stearns v. Barre, 58 L. R. A. 240; acquirement of right of way for-levee, note to State ex rel. Jones v. Eroehlieli, 58 L. R. A. 757; to establish private road, note to Latah County v. Peterson, 16 L. R. A. 81; for what purpose flowage of land may be authorized by statute, note to Turner v. Nye, 14 L. R. A. 487; relocation of railroad, note to Lusby v. Kansas City,. M. & B. R. Co. 36 L. R. A. 510; for railroad siding to private establishment* notes to Barre R. Co. v. Montpelier & W. River R. Co. 4 L. R. A. 785, and St. Louis, I. M. & S. R. Co. v. Petty, 20 L. R. A. 434; as to what constitutes a public use as constituting a question for the court, note to Barre R. Co. v. Montpelier & W. River R. Co. 4 L. R. A. 785.</p>

October Term, 1886, Nos. 17 i and 228, before Gordon, Paxson, Trunkey, Green, and Clark, JJ. Error to the Common; Pleas No. 1 of Allegheny County to review a judgment on a verdict for plaintiff in an action of trespass in case to recover damages to land from the construction and use of a railroad..

October Term, 1886, No. 143, before Gordon, T'runkey, Sterrett, and Green, JJ. Appeal from a decree of the Common Pleas of Butler County refusing to open a judgment.

October Term, 1886, No. 108, W. D., before Gordon, Trunkey, Sterrett, Green, and Clark, JJ. Error to the Common Pleas No. 1 of Allegheny County to review a judgment for defendant non obstante veredicto in an action of debt to recover one half the cost of building a party wall. At the trial in the court below defendant, inter alia, presented the following points: 2.

October Term, 1886, No. 96, W. D., before Gordon, Trunkey, Sterrett, Green, and Clark, JJ. Error to the Common Pleas No. 2 of Allegheny County to review a judgment on a verdict directed for defendant in an action of ejectment. This action was brought by James McCormick against T. J. Kinney to recover a house and lot in the village of Oakdale, North Fayette township.

<p>October Term, 1886, No. 21, W. D., before G-oedoN, Teuetkey, Steeeett, GeeeN, and Oi.aek, JJ. Error to the Common Pleas No. 1 of Allegheny County to review a judgment for plaintiffs for want of a sufficient affidavit of defense in action in case.</p> <p>The affidavit of claim filed and sworn to by Thomas Hare as agent for plaintiff's set forth that defendant was indebted to plaintiffs in the amount of $678.85 with interest from June 20, 1884, upon an acceptance of a draft drawn by James L. Styne upon defendant, by which defendant agreed to pay that amount to the order of Styne; that plaintiffs are bona fide holders for value of said draft before maturity; that the draft was duly presented when and where payable, and duly protested for nonpayment and due notice thereof given to, the indorsers and defendant, and that the same is now due and unpaid.</p> <p>The affidavit of defense filed by defendant set forth the defense as follows:</p> <p>“That the plaintiffs are not the bona fide holders and owners of the said draft for valuable consideration, in the due and regular course of business.</p> <p>“That on or about the 23d day of May, a. d. 1884, the plaintiffs above named made certain accommodation notes to the order of the said Penn Bank.</p> <p>“That as collateral security for the said obligations so undertaken, said plaintiffs obtained from said Penn Bank sundry notes and securities, held and owned by the said Penn Bank, of which the draft on which this suit is brought is one.</p> <p>“That at that time, and for some time immediately prior thereto, said Penn Bank was hopelessly insolvent.</p> <p>“That said plaintiffs at that time, and for some time immediately prior thereto, wrere directors of the said Penn Bank.</p> <p>“Affiant is informed, believes, and expects to be able to prove upon the trial of the cause, that during a large portion of the time said plaintiffs were directors of said Penn Bank the bush ness of said Penn Bank was conducted in a fraudulent manner and with gross negligence on the part of certain of its officers; that said plaintiffs, in their position as directors, did not exercise reasonable care and prudence; that the raising of funds by said accommodation notes was a desperate, unwarranted, and unlawful attempt to forestall the result of want of reasonable care and prudence on the part of the directors; and affiant is advised and believes, therefore, that the said plaintiffs have no right to hold said draft, but that, on the contrary, the Penn Bank is the rightful owner of the same.</p> <p>“And affiant further says that on or about the 28th day of Play, a. d. 1884, said Penn Bank made a voluntary assignment for the benefit of creditors, to Henry Warner, Esq., and that said assignee, Iienry Warner, has at No. 170, September term, 1884, filed a bill in equity, asserting that said plaintiffs have no right to hold said draft, and asking, inter alia, that they be directed to hand over and return the same to him as assignee aforesaid.</p> <p>“And affiant further says that the draft here sued on was drawn by James L. Styne; that the Penn Bank discounted the said draft for said James L. Styne, and the proceeds of the same were credited to the account of the said James L. Styne in the said Penn Bank; that the said James L. Styne, maker of the said draft, has paid the said draft to the Penn Bank.</p> <p>“That the plaintiffs to this suit have brought a suit upon the said draft against the said James L. Styne, at No. 188, December term, 1884, of this court; that the said James L. Styne has made defense to the suit so brought against him, alleging that he has paid the said draft, to the said Penn Bank in full.</p> <p>“That the said Styne alleges in his affidavit of defense filed in said case, and affiant here also avers, that the said Penn Bank closed its doors for business by reason of' its insolvency on the 26th May, 1884; that at the time of closing its doors, to wit, May 26, 1884, said Penn Bank had in its possession, on deposit and applicable to the payment of said draft, money of the said James L. Styne exceeding the amount of the draft, to wit, $692.76, from which sum of money the said James L. Styne claims to set off as much as is necessary to pay the said draft; and defendant says that the said draft is paid and fully discharged from the money of the said James L. Styne, maker of the said draft, in the possession of the said bank.”</p> <p>Plaintiffs entered a rule on defendant to show cause why judgment should not be entered for want of a sufficient affidavit of defense, assigning as reasons that the defendant has no right to contest the title of plaintiffs to the note and that tire defendant’s affidavit does not set forth a legal defense.</p> <p>The rule was made absolute, and defendant took this writ, assigning as error the action of the court in making the rule absolute, and in holding the affidavit of defense insufficient.</p> <p>As directors of the Penn Bank plaintiffs were bound to know its financial condition; they were trustees for the stockholders and depositors, and were placed in their offices to guard the assets and interest of the bank; as directors they were expected to have actaal and complete knowledge of all the affairs of the bank, and they are chargeable with all the consequences of actual and complete knowledge. The plaintiffs as individuals cannot recover on a title which accrued to them by reason of their mala fides as directors. Bank of Republic v. Gregg, 27 Pittsb. L. L 26; Spering’s Appeal, 71 Pa. 21, 10 Am. Rep. 684; United Society of Shakers v. Underwood, 9 Bush, 614, 15 Am. Rep. 731.</p> <p>The plaintiffs below stand in no better condition than the Penn Bank. They could not recover if the bank could not, and it could not recover against Styne, for he has paid it. The bank could not recover against McKirdy, by reason of Styne’s payment. Boggs v. Lancaster Bank, 7 Watts & S. 331.</p> <p>The filing of a bill in equity is notice of Us pendens to everyone who is bound to take notice. Pessler’s Appeal, 75 Pa. 483.</p> <p>For the purposes of this case the allegations of defendant in his affidavit must be accepted as true. Ecoff v. Gillespie, Pittsb. L. J. Nov. 14, 1883, p. 127; Emerr v. Bradley, 105 Pa. 190; Pittsb. L. J. July 23, 1884, p. 495.</p> <p>It is sufficient if the affidavit of defense sets forth facts showing a substantial prima facie defense, which can probably be established. McPherson v. Allegheny Nat. Bank, 96 Pa. 135.</p> <p>The affidavit of defense is sufficient if it sets forth, in words or by necessary inference therefrom, the indispensable elements of a good defense. Selden v. Neemes, 43 Pa. 421.</p> <p>The defence of payment is not stated with the particularity, as to time, amount, and manner of payment required in McCracken v. First Reformed Presby. Congregation, 111 Pa. 106,1 Cent. Rep. 854, 2 Atl. 94.</p> <p>In a suit against the drawers of a negotiable note indorsed in blank, the defendants have no concern with the question of the actual ownership of the note, except where the defense turns upon points involving the personal conduct of the true owner or of those who preceded him. Brown v. Clark, 14 Pa. 469; Logan v. Cassell,’ 88 Pa. 288, 32 Am. Rep. 453.</p> <p>There is nothing in plaintiffs’ position as directors which, of itself, affects their bolding of this paper as against the plaintiff in error. Warner’s Appeal, 1 Sad. 'Rep. 310.</p> <p>A director of a corporation is not prohibited from lending its money when needed for its benefit and the transaction is open; nor is his subsequent purchase of its property at a fair public sale, under a deed of trust executed to secure the payment of them, invalid. Twin Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. ed. 328.</p> <p>If directors have become sureties for a corporation, they may provide for their indemnity. Ashhurst’s Appeal, 60 Pa. 314.</p> <p>These defendants in error are entitled to stand in the same position as purchasers for value before maturity. Miller v. Pollock, 99 Pa. 202.</p> <p>The indorsee of an overdue note, although he takes it subject to the equities arising out of the note itself, does not take subject to set-off. Hughes v. Large, 2 Pa. St. 108; Olay v. Cottrell, 18 Pa. 408; Young v. Shriner, 80 Pa. 463.</p> <p>The indorsee of a negotiable note, discounted by a bank, and by it transferred to assignees before maturity, for full value, has no right, when payment is demanded by the holders, to pay the note in depreciated paper of the bank after it has failed. Housum v. Rogers, 40 Pa. 190.</p> <p>In pleading, mala fides must be shown, and an allegation that the party is not the bona fide holder is not sufficient. 1 Han. Neg. Inst. § 770.</p>

October Term, 1886, No. 104, W. D., before Gordon, Trunxey, Sterrett, Green, and Clark, JJ. Appeal from a decree of the Common Pleas No. 1 of Allegheny County in favor of complainant in a bill in equity for an accounting. The bill was filed against Samuel Haudenschield, John E. Haudenschield, Jacob Haudenschield, and Samuel Haudenschield as guardian of Charles Haudenschield and William Haudenschield, all children of John Haudenschield, deceased.

October Term, 1886, No. 229, W. D., before Gordon, Paxson, Trunkey, Sterrett, Gteen, and Olark, JTJ. Certiorari sur appeal from a decree of the Common Pleas of Westmoreland County confirming the report of the auditor to distribute the fund in the hands of an assignee for the benefit of creditors. The facts and proceedings which gave rise to this appeal are set forth in Gallagher’s Appeal, 114 Pa. 353, 5 Cent. Rep. 725, 60 Am. Rep. 350, 7 Atl. 237. ^ .....

October Term, 1886, No. 189, W. D., before Gordon, Paxson, Trttnkey, Sterrett, Green, and Clark, JJ. Certiorari to the Court of Quarter Sessions of Allegheny County to review proceedings laying out a public road. January 26, 1884, certain citizens of Wilkins (now Braddock) township presented a. petition for the opening of a new public road.

October Term, 1886, Ro. 207, W. I)., before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Error to the Common Pleas No. 1 of Allegheny County to review a judgment upon a verdict for plaintiffs in a sci. fa. sur mortgage.

October Term, 1886, No. 154, W. D., before Gordon, Trunks y, Sterrett, Green, and Clark, JJ. Appeal from a decree of tbe Common Pleas No. 1 of Allegheny County in equity, dismissing a supplemental bill. The bill was filed by William P. Wolfe against Thomas Hare el al., George B. Gordon, assignee of William N. Kiddle, and Wm. C., and Chas. E. Stewart.

October Term, 1886, No. 226, W. D., before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Error to the Common Pleas No. 1 of Allegheny County to review a judgment on a verdict directed for defendants in an action of trover. This action was brought by William O. Stewart and Charles E. Stewart against Charles S. Wolfe, William Wolfe, and William Patton, to recover the value of a certain stock of goods alleged to belong to plaintiffs.

October Term, 1886, No. 142, W. I)., before Gordon, Pax-son, Trunkey, Sterrett, and Green, JJ. Error to the Common Pleas No. 2 of Allegheny County to review a judgment on a verdict for plaintiff in an action of attachment in case.

<p>As a general rule the death of a partner dissolves the firm.</p> <p>Nothing hut the clearest and most unambiguous language, demonstrating in the most positive manner, by contract or by will, the intention of the decedent to make his general assets liable for debts contracted in continuing trade after his death, will render his estate a partner.</p> <p>The fact that executors have left to one of their number, who is a surviving partner of the testator, the entire management of the estate, and he retains in the firm (without authority) the capital of the testator, will not give him a right to pledge securities of the estate for a loan to the firm.</p> <p>In such a case the pledgee may be subrogated to whatever rights the pledgeor has as cestui que trust or legatee in the securities pledged.</p> <p>Note. — Bor the liability of the estate of a deceased partner, see Watterson v. Patrick, 1 Sad. Rep. 262.</p> <p>A change of property from executor to trustee, where both are the same person, may be shown by any authoritative and notorious act; but the mere determination of the executor in his own mind to hold as trustee instead of executor, is not such a setting apart for a trust as will relieve him from liability as executor and charge him as trustee.</p>

Argued October 20, 1886, before Gordon, Trunket, Sterrett, and Green, JJ. October Term, 1886, No. 193: W. D. Error to the Common pleas of Butler County to review a judgment on a verdict for plaintiff on a scire facias sur judgment. Tire following facts appeared on the trial: In 1879, a judgment was entered at C. P. No. 103, September term, 1S79, in favor of P. O. Wolford for use of the Centerville Savings Bank against Jefferson Allen, James Allen, and others.

<p>October Term, 1886, No. 78, before Gordon, Trunkey, Sterbett, and Green, JJ. Error to the Common Pleas of Washington County to review a judgment on a verdict for plaintiff on an issue framed upon an appeal frgm an award of viewers on petition for the assessment of damages to land from the construction of a railroad.</p> <p>This was a petition presented by C. M. Reed, Jr., and Ada B., his wife, in right of the wife, for the appointment of viewers to assess damages to their land from the relocation and reconstruction of a railroad. The road as originally constructed contained a line know as the Brownlee Summit Route on which had been a station called the Brownlee station located on a farm adjoining plaintiff’s farm. • As reconstructed the road was built through the plaintiff’s farm, and this station was abandoned. The viewers’ made an award in favor of plaintiff from which the defendant appealed, and an issue was framed.</p> <p>At the trial in the court below, before Hart, P. J., the plaintiff proposed to ask the witness, Lesage Orumrine,</p> <p>'‘"Whether or not, after an examination of this farm made bj him with the idea of its purchase, and an examination of the manner in which it was traversed by the railroad, he formed an estimate as to the injury inflicted upon the market value of the tract on account of the construction of the railroad through it. If this is answered in the affirmative, the plaintiff proposes to' ask how much, in the judgment of the witness, the market value was affected by such construction, and the grounds of the witness’s opinion.”</p> <p>Objected to, for the reason that the witness has stated he livest twenty miles away; that he never visited the land until April, 1885 ; that he knows nothing about the values of land in the1 neighborhood of the land in controversy, and that he didn’t want any farm that had a railroad located on it, and for the reason that the evidence is incompetent and irrelevant. (After some further examination of witness as to his knowledge of market values, the offer was renewed as before and the same objection was made).</p> <p>Objection overruled, offer admitted, and exception noted’. First assignment of error.</p> <p>Defendant asked the following question of Hubert McCombs, a witness of defendant:</p> <p>Q. Taking into consideration the advantages and disadvantages of the location and operation of this railroad, were the .owners of this land damaged or benefited, and in what way?</p> <p>Objected to as incompetent and irrelevant.</p> <p>Offer overruled and bill sealed. Second assignment of error.</p> <p>The court permitted the following question to be asked, upon cross-examination of Joseph Gaston, a witness of defendant:</p> <p>Q. Do you think the plaintiff in this case should be deprived of the cost of the land which the railroad takes ?</p> <p>Objected to, because it is not for the witness to express an opinion as to what the law ought to be.</p> <p>Objection overruled and bill sealed. Third assignment of error.</p> <p>The court permitted the following question to be asked, upon cross-examination of F. M. Finley, a witness of defendant:</p> <p>, Q. I would ask you whether or not in your opinion, Mrs. Reed, the owner of this land, should be paid for the land which the railroad takes from her.</p> <p>Objected to, for the reason that he had alreay stated that the increased value of the land would compensate for these damages.</p> <p>Objection overruled, and exception noted. Fourth assignment of error.</p> <p>! Defendant presented the following points:</p> <p>1. The plaintiff is not entitled to damages for any alleged depreciation in the value of her land arising from the abandonment of the Brownlee Summit Route of defendant’s railroad, .-and the consequent discontinuance of Brownlee station with the facilities and advantages which it is alleged to have afforded; .-and the jury will disregard the opinion, as to depreciation in the ¡plaintiff’s farm, of any witness who stated that his estimate was in part based upon such abandonment and discontinuance, without explaining how much of the estimated depreciation arises from such abandonment and discontinuance and how much from the location and construction of the defendant’s present line of ’.railroad.</p> <p>Ans. Whether or not the plaintiff is entitled to damages for :any alleged depreciation in the value of her land, arising fom the .abandonment of the Brownlee Summit Route of defendant’s ■railroad and the consequent discontinuance of Brownlee-station, with the facilities and advantages which it is alleged to have af • forded is a question of fact for the jury. If you find the fact to be as assumed in the point, you will allow for it in estimating the market value of the land; and you will also determine how far the opinion of a witness based in part upon such abandonment, etc., is affected by the fact so found. Fifth assignment of error.</p> <p>2. WThile it is true that, under the law, the advantages to be .considered by the jury are only such as are special to the prop.-erty of the plaintiff, yet it is also true that the advantages accruing to the plaintiff’s farm, from proximity of the railroad (such, for example, as the facility of getting produce to market, :-and bringing coal, lumber, and various natural or manufactured ■products to the premises), are none the less'special because other .-owners of lands along and in the vicinity of the road also enjoy -¿them.</p> <p>Arts. If the jury find as a fact that there are any such facilities which are special to this property, and not common to other lands in the vicinity (as, for instance, special facilities arising from proximity to the land of a railroad station), then they will take the fact into consideration in estimating the comparative values immediately before and immediately after the location and construction of the railroad. Sixth assignment o£ error.</p> <p>Plaintiff, inter alia, presented the following point:</p> <p>2. In estimating the damage done to the plaintiff the jury are to take into consideration and make just allowance for the value of the land actually taken and for injuries done to the land not taken; the changing of fences rendered necessary; the cutting off of water from plaintiff’s fields; the inconvenience of crossing the defendant’s tracks; the cost of making additional fences and of maintaining the same; the loss to the plaintiff of any portion of the land outside that actually appropriated, etc.., and generally all such special items of damage as would tend to depreciate the market value of this property at the date of the completion of defendant’s railroad through it.</p> <p>Arts. Affirmed. Seventh assignment of error.</p> <p>The jury rendered a verdict for plaintiff of $1,288.33, upon which judgment was entered; and defendant took this writ, assigning errors as above noted.</p> <p>Further facts appear in the opinion.</p> <p>The question put to Robert McCombs, as to whether the plaintiff’s land was injured or benefited by the railroad, was identical with that which this court in Pennsylvania & N. Y. R. & Canal Co. v. Bunnell, 81 Pa. -114, held to be a proper question, and was, if possible, even more unobjectionable than the similar question approved in Pennsylvania & N. Y. Canal & R. Co. v. Madell, 1 W. N. C. 287.</p> <p>The refusal of the court to allow it put prevented defendant from giving in evidence the ^elements of computation,” which, as held in Danville, H. & W. R. Co. v. Gearhart, 1 W. N. C. 237 and Pennsylvania & N. Y. Canal & R. Co. v. Madell, 1 IV. N. C. 287, defendant was entitled to introduce.</p> <p>The answer to defendant’s first point was erroneous- The defendant was entitled to an unqualified affirmance of this point. A party is entitled to such an answer to a point as is intelligible to a jury of plain men. Mills v. Buchanan, 14 Pa. 59.</p> <p>The defendant’s second point should have been affirmed as it stood. It is substantially in the very language of the charge which, in McTerren v. Mont Alto B. Co. 2 W. N. O. 40, this court affirmed as a proper instruction.</p> <p>The advantages to be considered by the jury are only such as are special and pculiar to the property in question; but an, advantage which affects the market value of that property is a special and peculiar advantage, notwithstanding the fact that other properties along or near the road may enjoy like adsumtages in the same or a greater or less degree, the distinction being between the advantages which accrue to the plaintiff as the owner of this property and those which accrue to him as the owner of any other property, or would be enjoyed by him simply as a member of the community if owning no land along or near to the road at all. Philadelphia & It. It. Co. v. Gilson, 8 Watts, 243; Watson v. Pittsburgh & C. R. Co. 37 Pa. 469; Hornstein v. Atlantic & G. W. R. Co. 51 Pa. 87; McTerren v. Mont Alto R. Co. 2 W. N. C. 40; Harrisburg & P. R. Co. v. Moore, 4 W. N. C. 532; Pittsburgh & L. E. R. Co. v. Robinson, 95. Pa. 426.</p> <p>The plaintiff’s second point may be all right as a general, abstract proposition; and we do not claim that, as such, it should have been refused. But as applied to the peculiar circumstances ■of this case, we claim that it should not have been affirmed without adding an explanation that would have clearly shown the jury what rule of valuation they were to apply. Although a proposition of law he true in the abstract, it ought to be so qualified as to adapt it to the circumstances of the case. Rider v. Maul, 70 Pa. 15; Hughes v. Boyer, 9 Watts, 556.</p> <p>In a prayer for instructions, any matters of fact should be ¡hypothetically stated. Sweitzer v. Hummel, 3 Serg. & R. 228; Riegel v. Wilson, 60 Pa. 388; Bartley v. Williams, 66 Pa. 329.</p> <p>error. — Lesage Crumrine was fully capable of expressing an opinion as to the market value of this property. Pennsylvania & N. Y. R. & Canal Co. v. Bunnell, 81 Pa. 426.</p> <p>The question put to the witness McCombs is objectionable, because the jury had nothing to do with the efféct of the operation of the road. New Castle i& F. E. Co. v. McChesney, 85 Pa. 522.</p> <p>Again, it is not the damage or benefit to the owners, but to the land, which was the subject-matter of consideration; Schuylkill Nav. Co. v. Thoburn, 7 Serg. & E. 411.</p> <p>In Pennsylvania & N. Y. E. & Canal Co. v. Bunnell, 81 Pa. 414, the question was “whether the location and construction of this railroad upon the farm of plaintiff was an advantage or a disadvantage to it, and in what way.”</p> <p>In Pennsylvania & N. Y. Canal & E. Co. ,v. Madell, 1 W. N. C. 287, the question was: “How is the land affected by the railroad, is it an injury to the farm or not?” The distinction is obvious, yet it is claimed that the question here asked was identical with the former and more unobjectionable than the latter.</p> <p>A party cannot complain of insufficiency in an answer to an immaterial point, or to one not properly raised by the evidence.' No injury could occur under such circumstances. Williams v. Williams, 34 Pa. 312. See also Eogers v. Háll, 4 Watts, 359; Burd v. M’Gregor, 2 Grant Cas. 353.</p> <p>The rule as to general and special advantages has been frequently laid down by this court — the jury are “to balance the advantages -that are special against the disadvantages that are actual.” - Hornstein v. Atlantic & G. W. E. Co. 51 Pa. 87.</p>

October Term, 1886, No. 149, before Gordon, Paxson,. Trunkey, Sterrett, Green, and Clark, JJ. Error to the-Court of Common Pleas No. 1 of Allegheny County to review a judgment on a verdict for plaintiff in an action to recover-damages for personal injuries alleged to have been caused by-defendant’s negligence.

October Term, 1886, No. 245, before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Appeal from a decree of the Common Pleas No. 1 of Allegheny County overruling appellant’s exceptions to a master’s report in favor of complainant, restraining defendant from a threatened taking of his property for a public street or highway.

October Term, 1886, No. 257, W. D., before Gordon, Paxson, Trunkey, Sterrett, Green, aud Clark, JJ. Appeal from a decree of the Common Pleas No. 1 of Allegheny County overruling exceptions to a master’s report and dismissing a bill in equity to restrain the collection of a tax levied under the act of March 7, 1846 (P. L. 78).

October Term, 1886, No. 182, W. D., before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Appeal from a decree of the Common Pleas No. 2 of Allegheny County dismissing exceptions to a master’s report in favor of complainant in a bill in equity for an accounting and partition of lands.

October Term, 1886, No. 117, W. D., before Gordon, Paxson, Trunkey, Sterrett, Green, aud Clark, JJ. Appeal from a decree of the Orphans’ Court of Allegheny County in favor of the complainants in a suit to charge land with the payment of an annuity.

October Term, 1886, No. 251, W. D., before Gordon, Paxson, Trunkby, Stebrett, Green, and Clark, JJ. Appeal from a decree of the Common Pleas No. 1 of Allegheny County overruling exceptions to a special return of the sheriff distributing the proceeds of a sale.

October Term, 1886, No. 119, W. D., before Gordon, Paxson, Trunkey, Sterretí, and Green, JJ. Held: and Jope. The money received from Klauss and Held amounted to $4,915.

<p>October Term, 1886, No. 250, W. D., before Gobdon, Paxson, Turnkey, Sterkett, Green, and Clark, JJ. Error to the Common Pleas No. 1 of Allegheny County to review a judgment for plaintiffs for want of a sufficient affidavit of defense in an action on a contract.</p> <p>The affidavit of claim set forth that defendants, D. Stewart & Sons, for value received, made, executed, and delivered to the plaintiffs, E. S. Jaffray & Company, a paper partly in writing and partly in printing as follows:</p> <p>“For and in consideration of the sale and delivery of merchandise made and which may he made hy E. S. Jaffray & Co. to Miss M. G. Stewart, hereinafter described, and of the sum of one dollar to us in hand paid hy the said E. S. Jaffray & Go. (the receipt whereof is hereby acknowledged), we hereby guarantee unto the said E. S. Ja.ffray'& Co., unconditionally, at and all times after maturity, any indebtedness (not exceeding the sum of-dollars) of Miss M. G. Stewart, now doing business in Pittsburgh, county of Allegheny, and state of Pennsylvania, for any purchase made prior to, at, or to he made after, this date, by the said Miss M. G. Stewart of the said E. S. Jaffray & Co. upon a credit of-or such other time or at any extension of time after maturity as may he given hy said E. S. Jaffray & Co. to the said Miss M. G. Stewart; and we hereby waive all the demands of payment and notice of protest as the respective bills, notes, acceptances, or other indebtedness of the said Miss M. G. Stewart, fall due. This guarantee is to he an open and continuo'us one at all times to the amount of-dollars above named until revoked hy ns in writing.</p> <p>Dated at New Tork, this 15th day of January, in the year of our Lord, one thousand eight hundred and eighty-four.</p> <p>D. Stewart & Sons.”</p> <p>That, in pursuance of such writing, plaintiffs delivered to Miss M. G. Stewart between January 17 and April 23, 1884, goods, as set forth in a hill annexed, to the amount of $1,865.45, upon which account has been paid the sum of $1,041.18, between February 23 and April 16, 1884, and no more.</p> <p>“That for months back the plaintiffs have made diligent inquiry for the whereabouts of Miss M. G. Stewart, and have been unable to find her; that on or about the 19th day of February, a. d. 1886, the plaintiffs caused suit to be instituted against her at Pittsburgh, her last known place of residence, to wit, at No. 569, March term, a. t>., 1886, in the court of common pleas No. 1, of Allegheny county, in the state of Pennsylvania, for the collection of said claim; whereupon summons were issued to the sheriff of said Allegheny county, returnable to the first Monday of March, 1886, who (the said sheriff) after due search and inquiry was unable to find her, and in due time so made return to said writ. That said Miss M. G. Stewart has no goods or chattels, rights or credits, lands or tenements anywhere but those which are exempt by law, and that she is insolvent.</p> <p>“That — by reason of said guaranty paper above recited and signed by William O. Stewart, one of the members of said firm (brother of said Miss M. G. Stewart), and afterwards admitted by him, and the facts above stated — the said firm of D. Stewart & Sons became and is indebted on said writing to them in the full amount of said claim of $824.27, with interest so as aforementioned.”</p> <p>The affidavit of defense filed by W. C.' Stewart, of the firm of D. Stewart & Sons, admitted the signing of the guaranty and alleged that at the time thereof the said M. G. Stewart was perfectly solvent; that it was distinctly understood and agreed upon between plaintiffs and defendants, at the time of signing the guaranty, that all goods sold said M. G. Stewart were to be paid for in ten days; and on payment within ten days a discount of 7 per cent was to be allowed from the face of the account; that E. S. Jaffray & Company negligently allowed their account to run for more than one year before suing or making any active effort to collect it; that at tbe time said goods were sold M. G. Stewart was solvent and so continued for several months. After said goods were sold the firm of D. Stewart & Sons became insolvent, which fact was known to plaintiffs; and at that time plaintiffs could have (by the exercise of ordinary diligence) collected their claim in full from M. G. Stewart; that no suit was brought by plaintiffs upon their claim until after M. G. Stewart had removed from Pittsburgh to the state of Kansas; that the plaintiffs, by their unreasonable delay, as aforesaid, have taken it out of defendant W. C. Stewart’s power to protect himself from loss by paying said claim and recovering, the amount thereof from the principal debtor; that reasonable care and diligence on plaintiffs’ part in pressing their claim against the original debtor would have resulted in its payment; and that the necessary legal steps to render D. Stewart & Sons liable for said debt as guarantors were not taken.</p> <p>Plaintiffs took a rule for judgment for want of a sufficient affidavit of defense, and filed, inter alia, as reasons:</p> <p>2. That the allegation in the affidavit of defense: that it was understood and agreed upon by the parties, at the time of the signing of the guaranty, that all goods sold said M. G. Stewart were to be paid for in ten days, as see terms set forth on bill, and on payment within ten days a discount of 7 per cent was to be allowed on face of claim, is no defense, and not contradictory of the affidavit of claim. There are no such set terms set forth on the bill as filed by plaintiffs; and if such an agreement was made, it does not disagree with the agreement claimed on by plaintiffs; and there is no allegation in the affidavit of defense that there was any offer to pay any of the bills claimed on by the defendants, within ten days of the time of purchase.</p> <p>3. That under the terms of the agreement claimed on, and which is not denied by the affidavit of defense, plaintiffs had a right at any time within six years to compel the payment of the money by the defendants, if the same had not been paid by said hi. G. Stewart, the purchaser.</p> <p>The court, in an opinion delivered after hearing, held that mere delay in bringing suit against the principal debtor would not release the guarantor; that the affidavit of defense was insufficient, and that the rule for judgment must be made absolute.</p> <p>The assignments of error specified such holding of the court as error.</p> <p>Until all the facts and circumstances are made known, the court cannot say whether there was unreasonable delay or a want of due diligence. National Loan & Bldg. Asso. v. Lichtenwalner, 100 Pa. 103, 45 Am. Kep. 359.</p> <p>A guarantor may be discharged by mere indulgence of the creditor to the principal. Brandt, Suretyship & Guaranty, p. 3.</p> <p>The undertaking of a guarantor is merely collateral and secondary. The creditor must resort in the first instance to the debtor; and the guarantor is liable only after the debtor has proved insolvent and the creditor has unsuccessfully used due diligence to obtain payment- from Mm. Hoffman v. Bechtel, 52 Pa. 193. See also Johnston v. Chapman, 3 Penr. & W. 18; Isett v. Hoge, 2 Watts, 128; Woods v. Sherman, 11 Pa. 100; National Loan & Bldg’. Asso. v. Lichtenwalner, 100 Pa. 103, 45 Am. Rep. 359.</p> <p>In Rudy v. Wolf, 16 Serg. & R. 82, this court has said: “It is sufficient if it be laid down that due diligence to recover the money from the obligor must be used; and what is due diligence must always be a part of the determination of a jury upon the whole evidence submitted to them.”</p> <p>This doctrine is reaffirmed in Hoffman v. Bechtel, 52 Pa. 193; Woods v. Sherman, 11 Pa. 100, and National Loan & Bldg. Asso. v. Lichtenwalner, 100 Pa. 103, 45 Am. Rep. 359.</p> <p>There being no dispute between the parties, as to the contract in suit being one of guaranty, we submit that the court below clearly erred when it made the rule for judgment absolute. Reigartv. White, 52 Pa. 438.</p> <p>The allegation on the one hand and denial on the other puts the plaintiffs upon proof of matters dehors the copy filed; and this is sufficient to prevent judgment Endlich, Affidavits of Defense, p. 250.</p> <p>The affidavit of defense law, as it is called, takes away the right of trial by jury; and hence affidavits of defense should receive a liberal construction. “If the affidavit sets forth substantially a good defense it should be supported.” Thompson v. Clark, 56 Pa. 33; McPherson v. Allegheny Nat. Bank, 96 Pa. 135.</p> <p>Otherwise the rule will be converted into a snare to entrap justice. Kountz v. Citizens Oil Ref. Co. 12 Pa. 396.</p> <p>Defendant should not be held to a rigor of statement so severe as to catch him in a mere net of forms. Lawrance v. Smedley, 6 W. N. C. 42.</p> <p>error. — An agreement, in writing, to be responsible for the debt of another has been held to be within the affidavit of defense law. Korn v. Hohl, 80 Pa. 333.</p> <p>The contract in this case is what is known in the law as a contract of indemnity, or contract of suretyship as treated of in the text books. See Addison, Contr. § 1111.</p> <p>A general and technical contract of suretyship is a direct liability to the creditor for the act to be performed by the debtor, and a general and technical guaranty is a liability only for his ability to perform the act. But it would be difficult to define the commercial contract of guaranty so clearly as to reconcile all the adjudged cases lying upon the confines between guaranty and suretyship. Beigart v. White, 52 Pa. 440.</p> <p>The creditor, in order to recover against a technical guarantor, must prove due diligence against the principal. Woods v. Sherman, 71 Pa. 104.</p> <p>In Woods v. Sherman, Justice Sharswood says: “In Sherman v. Roberts, 1 Grant Cas. 261, however, the word guarantee was held to have been used in its popular and not its technical sense — a sense, it may be remarked, which very few laymen know or consider in making contracts of this kind. The leaning of this court of late years has therefore very properly been against construing such contracts to be general guarantees.”</p> <p>In this case of Woods v. Sherman the contract was in these words: “I do hereby guarantee to Sherman & Company the payment of contract made by them with Davis & Woods to the amount of ten thousand dollars.”</p>

October Term, 1886, No. 258, W. D., before Gordon, Paxson, Trunkey, Sterrett, Green and Clark, JJ. Appeal from a decree of tbe Common Pleas No. 1 of Allegheny County, in equity, dismissing a bill for an injunction upon the giving •of a bond by defendant to secure plaintiffs against loss or damage.

October Term, 1886, No. 136, W. D., before Gordon, Paxson, Trunket, Sterrett, and Green, JJ. Appeal from a decree of the Common Pleas No. 1 of Allegheny County in equity, overruling exceptions to a master’s report and dismissing a bill in equity for an accounting.

<p>It is error for the court to confirm the report of viewers to lay out a public road without the payment of the damages assessed for opening it or any provision for their payment.</p> <p>A petition by one of the landowners to whom damages had been awarded, presented subsequently to the taking of the writ of certiorari to review the proceedings, asking that the damages be paid into court, does not operate to validate the order of confirmation.</p>

<p>Substitution cannot be made as long as the debt of the party whose rights are claimed to be used for the purpose of protecting or securing junior claims of the applicant for substitution remains unsatisfied, though it be in part only; until he shall be wholly satisfied there can be no interference with his rights or his securities which might hinder him in the collection of the residue of his claim.</p> <p>Note. — Subrogation cannot be demanded so long as a portion of the debt remains unsatisfied. Cooper v. Platt, 39 Pa. 528; Brough’s Estate, 71 Pa. 400; Graff’s Estate, 139 Pa. 69, 21 Atl. 233. And a tender of payment is not sufficient. Forest Oil Co.’s Appeal, 118 Pa. 138, 4 Am. St. Rep. 584, 12 Atl. 442. But a payment into court will be, though a less sum is paid than is due, by reason of a mistake in calculation. Sower’s Appeal, 1 Monoghan (Pa.) 49, 15 Atl. 898.</p> <p>See also the following editorial notes presenting the authorities on various phases of the doctrine of subrogation: Doctrine of, in general, notes to Southall v. Farish, 1 L. R. A. 641; Boone v. Clark, 5 L. R. A. 288, and Spaulding v. Harvey, 13 L. R. A. 619; to rights of mortgagee, note to Wilton v. Mayberry, 6 L. R. A. 61; on payment of another’s debt, note to Crumlish v. Central Improv. Co. 23 L. R. A. 124; right to, of partner who pays firm debt, note to Sands v. Durham, 54 L. R. A. 614; of purchaser on void execution sale, note to Riley v. Martinelli, 21 L. R. A. 33; of person paying tax, note to Bibbins v. Clark, 29 L. R. A. 282.</p>

October Term, 1886, No. 82, W. D. Error to the Common Pleas No. 1 of Allegheny County to review a judgment for plaintiff for want of a sufficient affidavit of defense in, an action to recover for goods sold and delivered. This action was brought by Charles Richardson, against Anthony II. Newell, to recover $363.23, the amount of a bill for meat sold and delivered to defendant between August 4 and August 17, 1885.

October Term, 1886, No. 209, W. D., before Gordon, Pax:son, Trunkey, Sterrett, Green, and Clark, JJ. Certiorari sur appeal to the Quarter Sessions of Allegheny County to review proceedings instituted under the general borough law of 1851 and its supplement of Hay 22, 1883.

January Term, 1886, No. 362, E. D., before Mercur, Oh. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Appeal from a decree of the Common Pleas No. 3 of Philadelphia County dismissing defendant’s exceptions to a master’s report and confirming the same in an action to recover the value of certain shares of stock.

<p>January Term, 1886, No. 826, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Error to the Common Pleas No. 1 of Philadelphia County to review a judgment for plaintiff for want of a sufficient affidavit of 'defense in an action of covenant.</p> <p>This action was brought by Charles M. Swain against John C. Scott, to recover the sum of $666.66 for eight months’ rent of premises leased to the Clay Commercial Telephone Company under a lease dated January 1,1884, to which was added the following agreement, both of which were set out in the affidavit of claim:</p> <p>In consideration of the execution of the foregoing indenture of lease by the parties thereto, and of the sum of $1 to me in hand paid, the receipt whereof is hereby acknowledged, I do hereby agree to become surety for the faithful performance of all or any of the conditions thereof -which are to be kept, done, and performed on the part of the said Olay Commercial Telephone Company, lessees, therein; and in default thereof on the part of said lessees, to be liable therefor to the lessor as fully to all intents and purposes as if I was the lessee, binding myself, my heirs, executors, administrators, and assigns, by virtue of these presents.</p> <p>In witness whereof I have hereunto set my hand and seal this eighteenth day of March, a. d. 1884.</p> <p>Signed, sealed, and delivered in presence] John C. Scott, of E. W. Carritt^ and E. U. Smith. j [Seal]</p> <p>Plaintiff averred that he had by due process of law exhausted all the property and effects of said telephone company, prior to the bringing of this suit for the payment of said rent, and that there is now due and payable to the plaintiff the sum of $666.66 for eight months’ rent from March 1 to October 1, 1885.</p> <p>The defendant filed his affidavit of defense, alleging the business carried on by the telephone company; the value of a telephone exchange; the work and skill required in its construction; the maimer in which it was built; the strong fixtures bolted to the roof; the heavy cables running from other roofs and fastened to the fixtures; the labor and cost of attaching the wires to the switches; that the plaintiff made inquiry concerning the business, and had it fully explained to him; that the plaintiff demanded security from the company; that defendant desired to provide against any accident or circumstance whereby the plant could be in any way disturbed or removed by any person other than a skilled workman of the company, and the safety of the cables, wires, and other property of the company jeopardized, or the lives and property of citizens in that neighborhood endangered; that he also desired that in case the company would be unable to meet its liabilities, or to carry on its business, tbe company or tbe defendant would be able to sell, tbe plant at private sale to other companies, and thereby protect the creditors and stockholders of the company from loss; that it was finally agreed that in ease any of the conditions of the lease should be violated, the defendant would be personally liable, and the plaintiff would look to the defendant alone for damages, and not to the telephone company or any of its property in the building; that in accordance with the agreement, the contract on the back of the lease was prepared, and on March 18, 1884, was signed by the defendant; that the telephone company built a wooden stand covering a greater part of the roof, stretching five heavy cables from the fixture on the roof of the exchange to other buildings over half a square away, and established a telephone exchange at an actual cost of about $10,000 with over 500 persons using the exchange; that on April 24, 1884, the American Bell Telephone Company filed a bill of complaint in the circuit court of the United States for the eastern district of Pennsylvania, against the Clay Commercial Telephone Company, alleging that the telephones used by the latter company were infringements upon patents owned by the Bell Company, and praying for an injunction against the Clay Company; that no action was taken in that suit, and the Clay Company continued to carry on its business and pay the rent until the month of February or March, 1885, when the Bell Company made an application in the circuit court for a preliminary injunction; that on April 25, 1885, an order was issued out of the circuit court restraining the Olay Company from further carrying on business, and the first Monday of June, 1885, was fixed for the final argument of the injunction suit; that as soon as the restraining order was issued, the defendant took measures to prevent the slightest disobedience of the order of the court; that the only way to secure obedience to the order was by discharging the employees, and closing up the exchange to prevent entrance into it; that the employees were discharged, telephones and other property of the company were collected and placed in the exchange, the door leading into the exchange was locked an fastened; the janitor having the care of the building and in the employ of the plaintiff was informed of the fact, and instructed to watch and protect- the exchange, to prevent any person from getting into it or carrying away the property of the company, which the janitor undertook to do, and all of which was well known to the plaintiff; that on June 5, 1885, the injunction case was. argued in the circuit court, and the court held the case under advisement; that after the argument, about the middle of June, 1885, the defendant went to the plaintiff, and informed him of the proceedings, requesting him not to commence1 any action for the collection of the rent, but to wait until the case had been decided in the circuit court, so that it would be known whether the Clay Telephone Company would be permitted to carry on its business or compelled to stop, and. stating that if the decision should be in favor of the Olay Telephone Company, the company would immediately resume business, and all the rent due the plaintiff would be promptly paid; but that if the decision should he against the Clay Telephone Company, the company would sell the exchange and other property, and pay the plaintiff and the other creditors the amounts due them; and the defendant would arrange with the plaintiff for the satisfaction of any demand the plaintiff would then have against the company; that the plaintiff then promised the defendant that he, the plaintiff, would wait a reasonable time for the decision to be rendered, .and would take no action for the collection of the rent; that the •defendant relied upon the promise made by the plaintiff, and the ■exchange remained closed and locked under the watch and care ■of the plaintiff’s employee, the janitor of the building; that before July 7, 1885, and before the case in the circuit court was •decided and without the knowledge or consent of, or notice or warning to, the Clay Telephone Company or to the defendant, the plaintiff, by himself, or an agent or constable employed by him, forced an entrance into the exchange and took possession •of the room and roof of the building and all the property therein and thereon, valued at $15,000; that on July 7, 1885, under a pretended levy or distraint for rent, and before the decision of ■the circuit court was rendered, and without the knowledge or •consent of, or notice or warning to, the Clay Telephone Company or to the defendant, all the property of the Olay Telephone Company contained in, and on the roof of, the building was sold, including a large number of patented telephones, the switch boards and the stand and fixtures erected upon the roof; that the defendant is informed that the amount realized from said ■sale was about $56; that after the sale the wires were stripped from the electrical conductors, and they and the switch boards and the telephones were carried away; that although the stand and fixtures on the roof were sold, yet the purchasers have been unable to take them away because of the heavy cables and wires stretched from other buildings in the neighborhood and fastened to the said stand and fixtures, and the inability of the purchasers to detach the wires and cables without destroying the cables and wires fastened thereto, or without destroying the property and endangering the lives of the citizens in that neighborhood, so that the said stand and fixtures have remained and yet remain upon the roof of the building, whereby the said Clay Telephone Company has been and yet is wholly unable to use or occupy the roof of the building or to erect another stand or fixtures thereon, and is unable to remove the cables and wires from the stand and fixtures that were sold and yet remain upon the roof, without injuring and destroying said stand and fixtures; that by reason of the wrongful entry of the plaintiff into the said telephone exchange, and the sale of the property of the said Clay Telephone Company, the said Clay Telephone Company has been injured and damaged to the extent of more than $15,000; that the defendant says he is advised and believes that the plaintiff had no lawful right or authority to enter into the said telephone exchange, or to levy and sell the said property and fixtures, or to levy upon and sell the said property and fixtures without notice to the said Clay Telephone Company or to the defendant; that the plaintiff has now no lawful action or cause of action against the defendant, under said lease and agreement, and the terms and conditions thereof; and that all of which is true, as the defendant is informed, believes, and expects to be able to prove .at the trial of the case. The plaintiff entered a rule for judgment for want of a sufficient affidavit of defense, which rule the court made absolute.</p> <p>The assignment of error specified the action of the court in entering judgment upon the copy of the lease and guaranty, ■and statement of rent and averments filed, and in entering judgment against the defendant for want of a sufficient affidavit of •defense.</p> <p>—In this ease the averments contain both too much and too little to fix a liability upon the defendant. The averment that •the plaintiff had by due process of law exhausted all the property and effects of the company, prior to the bringing of the suit, is an allegation of fact dehors the instrument. Even if it should be held to be proper to mate an. averment to justify a. suit against the guarantor the statement should be one of specific facts, upon which the court could base its decision that the plaintiff had exercised the necessary diligence against the principal debtor, by process that was due and lawful.</p> <p>This is an action of covenant, yet there is no averment of the breach of any of the covenants contained in the lease. Having agreed to become surety, not for the payment of the rent, but for the faithful performance of all or any of the conditions in the lease, the defendant is entitled to have set forth upon the record, specifically and clearly, the particular breach of condition for which the suit is brought, in order that in case of a recovery he may at any time hereafter avail himself of the record and plead it in his defense. Wall v. Dovey, 60 Pa. 212.</p> <p>The consideration mentioned in the contract is “In consideration of the execution of the foregoing indenture of lease by the parties thereto, and of the sum of $1 to' me in hand paid.” If, as the instruments show, the lease was executed on the first day of January, 1884, and the contract was signed by Scott on March 18, 1884, the execution of the lease was a past consideration that would be void for insufficiency, while the other consideration was a nominal one.</p> <p>If there was any other consideration not expressed in the instrument, it could be shown by parol testimony, if it be not directly inconsistent with that expressed. Buckley’s Appeal, 48 Pa. 491, 88 Am. Dec. 468; Taylor v. Preston, 79 Pa. 442.</p> <p>A writing may be reformed on account of fraud, accident, or mistake. So parol proof is sometimes admitted to explain latent ambiguities, local terms, and terms of art in writing. Fisher v. Deibert, 54 Pa. 460; Hetherington v. Clark,'30 Pa. 393; Miller v. Fichthorn, 31 Pa. 252.</p> <p>An express contract between parties, so ambiguous in its terms as to require interpretation may (in order to arrive at what they meant) be considered in the light of the surrounding circumstances at the time. This often enables courts to declare the meaning of contracts, but they are not allowed to add words, or to consider words and sentences to be in that are not there. Frazier v. Monroe, 72 Pa. 169; Cox v. Freedley, 33 Pa. 124, 75 Am. Dec. 584; Lacy v. Green, 84 Pa. 518.</p> <p>Parol evidence of the understanding of the parties in relation to the construction of a written agreement may be given to explain that winch is otherwise ambiguous. Bertsch v. Lehigh Coal & Nav. Co. 4 Bawle, 139; Selden v. Williams, 9 Watts, 9 ; Baltimore & P. S. B. Co. v. Brown, 54 Pa. 77; McGinity v. McGinity, 63 Pa. 38; Woods v. Sherman, 71 Pa. 105.</p> <p>An ambiguity being raised by parol may be explained by parol. Lycoming Mut. Ins. Co. v. Sailer, 67 Pa. 108.</p> <p>The consideration may be proved by parol. White v. Weeks, 1 Penr. & W. 486; Galway’s Appeal, 34 Pa. 242; Bowser v. Cravener, 56 Pa. 132; Lewis v. Brewster, 57 Pa. 410; Giltinan v. Strong, 64 Pa. 242.</p> <p>The facts set forth in the affidavit of defense are perfectly consistent with the language contained in the contract; and if the plaintiff violated the terms of the agreement, or deprived Scott of the security he otherwise would have had, he thereby released Scott from all liability. Hutchinson v. Woodwell, 107 Pa. 509.</p> <p>The whole question is one of fact that should be submitted to a jury for its determination.</p> <p>The plaintiff, having assumed the care and custody of the property, became its bailee. The act of assembly relating to proceedings on a distress requires that notice of the distress be given. A sale of the goods without the notice required by law would have been irregular and unlawful. If the sale was illegal, the landlord thereby became a trespasser. McLean v. McCaffrey, 3 Pennvp. 408.</p> <p>It cannot be contended that the landlord, under the circumstances, could serve the notice upon himself. The relation of landlord and tenant was a confidential relation. 'Matthew’s Appeal, 104 Pa. 444.</p> <p>The landlord is made a judge in his own cause upon the terms of conducting himself with perfect uprightness and with a careful regard of the rights of the defendant. McElroy v. Dice, 17 Pa. 163; Murphy v. Chase, 103 Pa. 262.</p> <p>A declarationon this lease, with a statement of the covenant for payment of rent and a breach of covenant, would be sufficient to recover. 2 Chittv, PI. *551.</p> <p>Imhoff v. Brown, 30 Pa. 504, is directly in point, that with a copy of tibe instrument on which suit is brought may be filed a statement respecting the extent of plaintiff’s claim and his right to sue. This is exactly what was done in this case.</p> <p>Whether the agreement of the plaintiff in error on which suit is brought is a contract of'suretyship or guaranty is immaterial. By its express words he has bound himself, his heirs, executors, administrators, and assigns as fully as if he were the original lessee. As long ago as 1842 this was held to be an absolute undertaking, with the same liability as if he had signed the lease, and it has not since been doubted. Blackburne v. Boker, 1 Clark (Pa.) 15.</p> <p>But a contract for the true and faithful performance of the contract by the lessee is a contract of suretyship, not of guaranty. Coe v. Yogdes, 71 Pa. 383; Allen v. Hubert, 49 Pa. 259; Reigart y. White, 52 Pa. 438; Ashton v. Bayard, 71 Pa. 139; Korn y. Hohl, 80 Pa. 333.</p>

July Term, 1886, No. 106, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Appeal from a decree of the Orphans’ Court of Philadelphia County dismissing exceptions and confirming a master’s report allowing a claim against a decedent’s estate for damages for breach of covenant in a deed.

January Term, 1886, No. ?48, E. D., before Mercur, Gh. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.

January Term, 1886, No. 405 E. D., before Mercur, Oh. J., Gordon, Paxson, Trunkey, Sterkett, and Green, JJ. Appeal from a decree of the Orphans’ Court of Philadelphia County dismissing exceptions to the adjudication of the auditing judge restating a guardian’s account. James Haviland was appointed guardian of Mary Hughes, a minor, October 15, 1878, and filed his account as such March 30, 1885. . The account was called for audit before Penrose, J., June 3, 1885.

January Term, 1886, No. 205, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Appeal from a decree of the Common Pleas No. 1 of Philadelphia County, sustaining a demurrer to a hill in equity to restrain defendant from committing a waste.

January Term, 1886, No. 270, E. D., before Mercur, CL J., Gordon, Trunkey, Sterrett, and Green, JJ. Error to the Common Pleas No. 3 of Philadelphia County to review a judgment on a verdict for defendant in an action of replevin. This was an action of replevin brought by the Wire Book-Sewing Machine Company against Harry P. Crowell to recover possession of two machines of the alleged value of $1,800.

January Term, 1886, No. 236, E. D., before Mercur, Cb. J., Gordon, Paxson, Tbunkey, Sterrett, and Green, JJ. Error to tbe Common Pleas No. 1 of Philadelphia County to review a judgment of compulsory nonsuit in an action in case for injuries alleged to have been caused by negligence of defendants.

<p>The engine, boiler, cupola, and machinery in a foundry, held to be fixtures, and to pass to a purchaser at a sale on a mortgage of the land ■“with the belongings and improvements thereon erected.”</p> <p>The defendant in an execution is not a competent witness for the execution creditor in a feigned issue under the interpleader act, to try the title of property levied on, as between the creditor and the vendee of .■such purchaser.</p> <p>The inventory and appraisement of the personal property of the estate ■of such purchaser, since deceased, is not competent evidence in such feigned issue, to show that his executors had treated such property as personal property.</p> <p>Note. — Dor the competency of the debtor as a witness in such case, see .Hause v. Sloyer, 3 Pa. Dist. R. 320.</p>

January Term, 1886, No. 206, E. D., before Mercur, Oh. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Appeal from a decree of the Orphans’ Court of Philadelphia County sustaining in part exceptions to the adjudication of the auditing judge awarding a claim against the estate of the decedent for professional services as an attorney at law.

January Term, 1886, Nos. 240, 241, before Mercur, Oh. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Appeals from a decree of the Orphans’ Court of Philadelphia County declaring legacies charged on land and ordering a sale or mortgage of the land to pay the legacies.

<p>The report of a referee appointed under the act of May 14, 1874, examined and held to substantially conform to the requirements of that act.</p>

<p>July Term, 1886, No. 156, before Mercub, Cb. J., Gordon, Paxson, Trunkey, Steerett, and Green, JJ. Error to Common Pleas No. 4 of Philadelphia County to review a judgment on a verdict for plaintiff in an action of assumpsit on a contract of hiring.</p> <p>The terms of the contract upon which suit was brought are stated in the opinion of the supreme court. The narr. was in the common counts with a special count for breach of the contract.</p> <p>There was evidence that in June, 1884, the goods of defendants were seized by the sheriff, and that they made an assignment for the benefit of creditors.</p> <p>On June 5, 1884, the defendants wrote the plaintiff the following letter: “We regret very much to have to report that; owing to unforeseen difficulty we have been obliged to suspend! payment. We notify you now, so that in case you have any opportunities to make a change you may avail yourself of them at once.”</p> <p>On June 25,1884, -they wrote to the plaintiff: “Yours of the 24th at hand. At present we cannot say anything in regard to' payment of salaries after June 1. This is a matter which must remain for the present in statu quo. Any balances due before' June 1 we will take into consideration the propriety of paying.. As we have before written you, your services will not be required after July 1. You are, therefore, free to look for another position.”'</p> <p>The plaintiff did not notify the defendants that he objected to his discharge,' and on October 4, 1884, he sent to their assignee a letter, in which he said: “I enclose you my claim, and would be obliged to you if you kindly let me know your intentions regarding the matter.”</p> <p>The statement of claim, with affidavit, are contained in the-opinion of the supreme court.</p> <p>The court refused to affirm the following points presented by defendants:</p> <p>“1. If the jury find that plaintiff was employed for the term; of one year, by the firm of Yanuxein, Wharton, & Company, to' act as their agent to sell such goods as they might manufacture and consign for sale to New. York, this was upon the implied understanding that the employment was only to continue for one year, if the existence of the firm should so long continue. If you find that in the month of June, 1884, the firm went out of existence and was dissolved because of its insolvency, of its property being attached and seized by the sheriff, and of its being compelled to make an assignment of all its assets for the benefit of creditors; that in said month of June the firm notified plaintiff of these facts, and of its being unable to continue him in its employ after July 1, 1884; and that he was not continued by it in its employment- after the first of July, 1884,— then he can only recover his salary up to that date.”</p> <p>' “2. If the jury find the above facts and further find that a notice by the firm such as is above stated was given on the third day of June, 1884, and that after such notice the plaintiff without expressing any dissent or objection, sent to the firm’s assignee letter of the 4th of October, 1884, with accompanying affidavit of October 3, 1884,-. you can find that there was such acquiescence by him in his discharge, and that bars his recovery for more than the sum claimed by him in said letter.”</p> <p>The assignments of error specified the refusal of the points.</p> <p>Where a servant is employed by a firm, a dissolution of the firm dissolves the contract, so that the servant is absolved therefrom; but, if the dissolution results from the act of the parties, they are liable to the servant for his loss therefrom; but 'if the dissolution results from the death of a member of the firm, die dissolution resulting by operation of law and not from the act of the parties, no action for damages will lie. . The test is whether the firm is dissolved. So long as it exists the contract is in force, but when it is dissolved the contract is dissolved with it; and the question as to whether damages can be recovered therefor will depend upon the quetion whether the dissolution resulted from the act of God, the operation of the .law, or the act of the parties. Wood, Mast. & S. p. 308, § 163.</p> <p>If the master is declared a bankrupt, the contract is treated .-as at an end by operation of law, unless provision is made in -the bankrupt law for the payment of the servant’s wages for the -whole term. Id. p. 307, § 161.</p> <p>In McKelvy’s Appeal, 72 Pa. 409, it was held that an assign-ment for the benefit of creditors worked a dissolution of the •firm, and it was said: “It is not easy to distinguish from bankruptcy the case of a voluntary assignment by an insolvent firm which strips the partnership of all its means of continuing business, followed by an actual relinquishment of the business.”</p> <p>error. — Plaintiffs in error’s second citation from Wood, taken in connection with the context, not given by them, means that, in case of bankruptcy, the wages may be apportioned and the servant may prove, under the bankrupt law, for a pro rata.</p> <p>In an action for breach of contract of hiring, bankruptcy is no defense. Thomas v. Williams, 1 Ad. & El. 685; Dobbin v. Poster, 1 Car. & K. 823; Smith, Mast. & S. 4th ed. pp. 18 — 30, 211; Be English & S. Marine Ins. Co. L. E. 5 Ch..Y3Y; Be London & S. Bank, L. E. 9, Eq. 149; Yelland’s Case, L. E. 4 Eq. 350; Ex parte Clark, L. E. Y Eq. 550; Dean’s Claim, 26 L. T. N. S'. 46Y; Shirreff’s Case, L. E. 14 Eq. 41Y.</p> <p>In Yail v. Jersey Little Ealls Mfg. Co. 32 Barb. 564, it is held that the fact that there is nothing for an employee to do does not affect his right to his salary, if he regularly attends at his place of employment and holds himself ready to serve. Eereira v. Sayres, 5 Watts & S. 210, 40 Am. Dec. 496, rules this case on this point.</p> <p>To affirm defendants’ second point would have been, in effect, a binding instruction to the jury that plaintiff’s letter to the assignee was an acquiescence in his discharge.</p> <p>If the claim presented by the plaintiff to defendants’ assignee is to have the effect imputed to it, it must be by way of ■estoppel. It cannot have this effect, because it was not a representation made to defendants, and they did not act upon it, nor were they prejudiced by it. Patterson v. Lytle, 11 Pa. 53.</p>

January Term, 1885, No. 337, before Meecur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Held: is eqxxivalent to notice. Churcher v. Guernsey, 39 Pa. 84; Maul v. Rider, 59 Pa. 167; Jaques v. Weeks, 7 Watts, 261; Hottenstein v. Lerch, 12 W. N. O. 4; Jamison v. Dimock, 95 Pa. 52.

January Term, 1886, No. 235, before Mercur, Cb. J., Gordon, Trunkey, Sterrett, and Green, JJ. Error to the Common Pleas No. 4 of Philadelphia County to review a judgment on a verdict for the plaintiff in an action of assumpsit. This was an action by William H. Whitaker against Robert Hare Powel & Company, to recover a balance which he alleged to be due him upon a contract to pay him a commission for coal sold by him for the defendants in 1884.

January Term, 1886, No. 224, before Meecur, Oh. J., ‘Gordon, Trunkey, Steekett, and Green, JJ. Error to Common Pleas No. 1 of Philadelphia County to review a judgment for plaintiff for want of a sufficient affidavit of defense in an action of debt.

July Term, 1886, No. 37, before Merque, Oh. J., -Gordon,. Paxson, Tbdnicey, and Steeebtt, JJ. Error to Common Pleas No. 3 of Philadelphia County to review a judgment for plaintiff for -want of a sufficient affidavit of defense in an action on the case.

'January Term, 1886, No. 169, E. D., before Mercur, Cb.J., Gordon, Pax son, Trunkey, Sterrett, and Green, JJ. Appeal from a decree of fclie Orphans’ Court of Philadelphia County auditing the accounts of William O. Mayer, a deceased guardian. The appellant presented her petition in 1883, praying for a citation on the administratrix of her deceased guardian, to compel her to file an account.

July Term, 1886, No. 204, E. D., before Mercur, Oh. J., Gordon, Paxson, Trunkey, -Sterrett, and Green, JJ. Error to Common Pleas No. 4 of Philadelphia County to review a judgment for the plaintiff for want of a sufficient affidavit of defense in an action of covenant on a ground-rent deed. This was a suit begun May 31, 1886, by James PL Laiferty against Charles E. A. Simonin to recover six months’ ground rent accrued April 1, 1886.

July Term, 1886, No. 201, E. D., before Mercur, Ch. J.,, Gordon, Paxson, Trunkey, and Sterrett, JJ. Error to Common Pleas No. 4 of Philadelphia County to review a judgment on a verdict for defendant in an action of ejectment. On the trial the plaintiff offered evidence to establish the following facts: Leonard Erailey and Robert Glassey were the owners of adjoining lots of ground in the city of Philadelphia.

January Term, 1886, No. 33, E. D., before Mercur, Oh. J.,. Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Held: in Chilton v. Niblett, 3 Humph. 404, that a vendee in possession “is not the actual tenant of vendor, but for some purposes has been held quasi his tenant, but never has, we believe, so as to warrant his demanding a notice to quit when he refuses to complete the purchase.” In New Hampshire, a double character is attributed to the…

July Term, 1886, No. 212, E. D., before Meecur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Error to the Common Pleas No. 1 of Philadelphia County to review a judgment on a verdict for the plaintiffs in an action of assumpsit. The cause of action and the testimony adduced at the trial, before Biddle, J., are sufficiently set forth in his charge to the jury, which was as follows: The law makes me responsible in declaring the law to you.